This VOTING
AGREEMENT (this “ Agreement ”) is entered into
as of October 2, 2005, by and between Symantec Corporation, a
Delaware corporation (“ Acquiror ”), and the
undersigned shareholder (“ Shareholder ”) of
BindView Development Corporation, a Texas corporation (the “
Company ”). Terms not otherwise defined herein shall
have the respective meanings ascribed to them in the Merger
Agreement (as defined below).
A. The
execution and delivery of this Agreement by Shareholder is a
material inducement to the willingness of Acquiror to enter into
that certain Agreement and Plan of Merger dated as of October 2,
2005 (the “ Merger Agreement ”), by and among
Acquiror, Buena Vista Acquisition Corp., a Texas corporation and
wholly-owned subsidiary of Acquiror (“ Sub ”),
and the Company, pursuant to which Sub will merge with and into the
Company (the “ Merger ”), and the Company will
survive the Merger and become a wholly-owned subsidiary of
Acquiror.
B. Shareholder
understands and acknowledges that the Company and Acquiror are
entitled to rely on (i) the truth and accuracy of
Shareholder’s representations contained herein and (ii)
Shareholder’s performance of the obligations set forth
herein.
NOW, THEREFORE, in
consideration of the premises and the covenants and agreements set
forth in the Merger Agreement and in this Agreement, and other good
and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto hereby agree as
follows:
1.
Restrictions on Shares . Subject to the terms and conditions
herein and in the Merger Agreement,
(a) Shareholder
shall not, directly or indirectly, transfer (except as may be
specifically required by court order or by operation of law), grant
an option with respect to, sell, exchange, pledge or otherwise
dispose of or encumber the Shares (as such term is defined in
Section 4 below) or any New Shares (as such term is defined in
Section 1(d) below), or make any offer or enter into any agreement
providing for any of the foregoing, at any time prior to the
Expiration Date; provided , however , that nothing
contained herein will be deemed to restrict the ability of
Shareholder to (i) exercise, prior to the Expiration Date, any
Company Options held by Shareholder or (ii) transfer or
otherwise dispose of Shares to a charitable organization qualified
under Section 501(c)(3) of the Internal Revenue Code of 1986,
as amended, provided that such organization agrees to be bound by
the terms of this Agreement and, if requested by Acquiror, to
execute a Proxy (as hereinafter defined). As used herein, the term
“ Expiration Date ” shall mean the earlier of
(i) the Effective Time and (ii) the date and time of the
valid termination of the Merger Agreement in accordance with its
terms.
(b) Prior
to the Expiration Date, Shareholder shall not, directly or
indirectly, grant any proxies or powers of attorney with respect to
any of the Shares, deposit any of the Shares into a voting trust,
or enter into a voting agreement (other than this Agreement) or
similar arrangement or commitment with respect to any of the
Shares.
(c) Shareholder
shall not, directly or indirectly, take any action (other than any
action of Shareholder, in such Shareholder’s capacity as a
director of the Company, in the exercise of such
Shareholder’s fiduciary duties with respect to an Alternative
Transaction Proposal or Superior Proposal in compliance with the
terms of the Merger Agreement) that would make any representation
or
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warranty
contained herein untrue or incorrect or have the effect of
impairing the ability of Shareholder to perform its obligations
under this Agreement or preventing or delaying the consummation of
any of the transactions contemplated hereby.
(d) Any
shares of Company Common Stock or other securities of the Company
that Shareholder purchases or with respect to which Shareholder
otherwise acquires voting rights after the date of this Agreement
and prior to the Expiration Date, including pursuant to the
exercise of options or warrants to purchase Shares (collectively,
the “ New Shares ”), shall be subject to the
terms and conditions of this Agreement to the same extent as if
they constituted Shares.
2.
Agreement to Vote Shares . Prior to the Expiration Date, at
every meeting of the shareholders of the Company called with
respect to any of the following matters, and at every adjournment
or postponement thereof, and on every action or approval by written
consent or resolution of the shareholders of the Company with
respect to any of the following matters, Shareholder shall vote, to
the extent not voted by the person(s) appointed under the Proxy (as
defined in Section 3 below), the Shares and any New Shares in
favor of the approval of the Merger Agreement and any matter that
could reasonably be expected to facilitate the Merger, and against
any Alternative Transaction Proposal (as such term is defined in
Article I of the Merger Agreement) and any other matter that
might reasonably be expected to impede, interfere with, delay,
postpone or adversely affect the Merger or any of the transactions
contemplated by the Merger Agreement.
3.
Irrevocable Proxy . Concurrently with the execution and
delivery of this Agreement, Shareholder shall deliver to Acquiror a
duly executed proxy in the form attached hereto as
Exhibit A (the “ Proxy ”), which
proxy is coupled with an interest, and, until the Expiration Date,
shall be irrevocable to the fullest extent permitted by law, with
respect to each and every meeting of shareholders of the Company or
action or approval by written resolution or consent of shareholders
of the Company with respect to the matters contemplated by
Section 2 covering the total number of Shares and New Shares
in respect of which Shareholder is entitled to vote at any such
meeting or in connection with any such written consent. Upon the
execution of this Agreement by Shareholder, (i) Shareholder
hereby revokes any and all prior proxies (other than the Proxy)
given by Shareholder with respect to the subject matter
contemplated by Section 2, and (ii) Shareholder shall not
grant any subsequent proxies with respect to such subject matter,
or enter into any agreement or understanding with any Person to
vote or give instructions with respect to the Shares and New Shares
in any manner inconsistent with the terms of Section 2, until
after the Expiration Date.
4.
Representations, Warranties and Covenants of Shareholder .
Shareholder hereby represents, warrants and covenants to Acquiror
as follows:
(a) Shareholder
is the beneficial or record owner of, or exercises voting power
over, that number of shares of Company Common Stock set forth on
the signature page hereto (all such shares owned beneficially or of
record by Shareholder, or over which Shareholder exercises voting
power, on the date hereof, collectively, the “ Shares
”). The Shares constitute Shareholder’s entire interest
in the outstanding shares of Company Common Stock, other than as
set forth in the Merger Agreement, and Shareholder does not hold
any other outstanding shares of capital stock of the Company. No
person not a signatory to this Agreement has a beneficial interest
in or a right to acquire or vote any of the Shares (other than,
(i) if Shareholder is a partnership, the rights and interest
of persons and entities that own partnership interests in
Shareholder under the partnership agreement governing Shareholder
and applicable partnership law or (ii) if Shareholder is a
married individual and resides in a State with community property
laws, the community property interest of his or her spouse to the
extent applicable under such community property laws). The Shares
are and will be at all times up until the Expiration Date free and
clear of any security interests, liens, claims, pledges, options,
rights of first refusal, co-sale
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rights,
agreements, limitations on Shareholder’s voting rights,
charges and other encumbrances of any nature that would adversely
affect the Merger or the exercise or fulfillment of the rights and
obligations of the Company under the Merger Agreement or of the
parties to this Agreement. Shareholder’s principal residence
or place of business is set forth on the signature page
hereto.
(b) Shareholder
has all requisite power, capacity and authority to enter into this
Agreement and to consummate the transactions contemplated hereby.
The execution and delivery of this Agreement by Shareholder and the
consummation by Shareholder of the transactions contemplated hereby
have been duly authorized by all necessary action, if any, on the
part of Shareholder. This Agreement has been duly executed and
delivered by Shareholder and, assuming the due authorization,
execution and delivery of this Agreement by Acquiror, constitutes a
valid and binding obligation of Shareholder, enforceable against
Shareholder in accordance with its terms, subject to applicable
bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and
remedies generally and to general principles of equity.
(c) The
execution and delivery of this Agreement does not, and the
consummation of the transactions contemplated hereby and compliance
with the provisions hereof will not, conflict with, result in a
breach or violation of or default (with or without notice or lapse
of time or both) under, or require notice to or the consent of any
person under, any agreement, law, rule, regulation, judgment, order
or decree by which Shareholder is bound, except for such conflicts,
breaches, violations or defaults that would not, individually or in
the aggregate, prevent or delay consummation of the Merger and the
transactions contemplated by the Merger Agreement and this
Agreement or otherwise prevent or delay Shareholder from performing
his, her or its obligations under this Agreement.
(d) Until
the Expiration Date, Shareholder, in his, her or its capacity as
a
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