1
Exhibit 11
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT dated October ___, 1998, among SYMANTEC CORPORATION,
a Delaware corporation ("PARENT"), QUARTERDECK ACQUISITION CORPORATION, a
Delaware corporation and a wholly owned Subsidiary of Parent ("SUB"), and Xxxxx
Xxxxxx-Xxxxx (the "STOCKHOLDER").
WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, Sub and QUARTERDECK CORPORATION, a Delaware corporation (the "COMPANY"),
have entered into an Agreement and Plan of Merger (as such agreement may
hereafter be amended from time to time, the "MERGER AGREEMENT"), pursuant to
which Sub will be merged with and into the Company (the "MERGER");
WHEREAS, in furtherance of the Merger, Parent and the Company desire that
as soon as practicable (and not later than five (5) business days) after the
announcement of the execution of the Merger Agreement, Sub shall commence a cash
tender offer (the "OFFER") to purchase at the Offer Price all outstanding shares
of Common Stock (each as defined in Section 1 hereof), including all of the
Securities (as defined in Section 2 hereof) Beneficially Owned by the
Stockholder; and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements contained herein, the
parties hereto agree as follows:
1. Definitions. For purposes of this Agreement:
(a) "BENEFICIALLY OWNED" or "BENEFICIAL OWNERSHIP" with respect to
any securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as
amended (the "EXCHANGE ACT")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing. Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a Person
(as hereinafter defined) shall include securities Beneficially Owned by all
other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act.
(b) "COMMON STOCK" shall mean the Common Stock, $0.001 par value per
share, of the Company.
(c) "OFFER PRICE" shall mean cash in the amount of $_____ per share
of Common Stock or, if greater, the price per share paid by Sub in the Offer.
2
(d) "PERSON" shall mean an individual, corporation, partnership,
limited liability company, joint venture, association, trust, unincorporated
organization or other entity.
(e) "SECURITIES" shall mean any shares of Common Stock Beneficially
Owned by the Stockholder on the date hereof, as reflected on Exhibit I hereto
(the "Existing Securities") or acquired by the Stockholder in any capacity after
the date hereof and prior to the termination of this Agreement by means of
purchase, dividend, distribution, exercise of options or other rights to acquire
Common Stock or in any other way.
(f) Capitalized terms used and not defined herein shall have the
respective meanings ascribed to them in the Merger Agreement.
2. Tender of Shares.
(a) In order to induce Parent and Sub to enter into the Merger
Agreement, the Stockholder hereby agrees to validly tender the Securities (or
cause the record owner of such Securities to validly tender such Securities),
and not to withdraw such Securities (except following termination of this
Agreement pursuant to Section 7 hereof), pursuant to and in accordance with the
terms of the Offer, as soon as practicable after commencement of the Offer
pursuant to Section 1.1 of the Merger Agreement and Rule 14d-2 under the
Exchange Act (but in the case of Securities acquired after the date hereof, in
no event later than two business days after such acquisition). The Stockholder
hereby acknowledges and agrees that Parent's and Sub's obligation to accept for
payment and pay for the Securities in the Offer, including the Securities
Beneficially Owned by the Stockholder, is subject to the terms and conditions of
the Offer.
(b) The Stockholder hereby permits Parent and Sub to publish and
disclose in the Offer Documents and, if approval of the Company's stockholders
is required under applicable law, the Proxy Statement (including all documents
and schedules filed with the SEC) its identity and ownership of the Securities
and the nature of its commitments, arrangements and understandings under this
Agreement.
3. Additional Agreements.
(a) Voting Agreement. Until the termination of this Agreement
pursuant to Section 7 hereof, the Stockholder shall, at any meeting of the
stockholders of the Company, however called, or in connection with any written
consent of the stockholders of the Company, vote (or cause to be voted) all
Securities then held of record or Beneficially Owned by the Stockholder, (i) in
favor of the Merger, the execution and delivery by the Company of the Merger
Agreement and the approval of the terms thereof and each of the other actions
contemplated by the Merger Agreement and this Agreement and any actions required
in furtherance thereof and hereof; and (ii) against any proposal relating to a
takeover proposal and against any action or agreement that would impede,
frustrate, prevent or nullify this Agreement, or result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which would result in any
of the conditions set forth in Exhibit A to the Merger Agreement or set forth in
Article VII of the Merger Agreement not being fulfilled.
2
3
(b) No Inconsistent Arrangements. The Stockholder hereby covenants
and agrees that, except as contemplated by this Agreement and the Merger
Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge (other than a pledge which does not impair
the Stockholder's ability to perform under this Agreement) or other
disposition), or consent to any transfer of, any or all of the Securities or any
interest therein, (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Securities or
any interest therein, (iii) grant any proxy, power-of-attorney or other
authorization in or with respect to the Securities, (iv) deposit the Securities
into a voting trust or enter into a voting agreement or arrangement with respect
to the Securities or (v) take any other action that would in any way restrict,
limit or interfere with the performance of its obligations hereunder or the
transactions contemplated hereby or by the Merger Agreement
(c) Grant of Irrevocable Proxy; Appointment or Proxy.
(i) The Stockholder hereby irrevocably grants to, and appoints,
Parent and ___________________________ and ______________________________, or
either of them, in their respective capacities as officers or directors of
Parent, and any individual who shall hereafter succeed to any such office or
directorship of Parent, and each of them individually, the Stockholder's proxy
and attorney-in-fact (with full power of substitution), for and in the name,
place and stead of the Stockholder, to vote the Securities, or grant a consent
or approval in respect of the Securities, in favor of the various transactions
contemplated by the Merger Agreement (the "TRANSACTIONS") and against any
proposal relating to a takeover proposal.
(ii) The Stockholder represents that any proxies heretofore given
in respect of the Stockholder's Securities are not irrevocable, and that any
such proxies are hereby revoked.
(iii) The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement. The Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 3(c) is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of the Stockholder under this Agreement.
The Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. The Stockholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the DGCL.
(d) No Solicitation. The Stockholder hereby agrees, in the capacity
as a stockholder of the Company, that neither the Stockholder nor any
affiliates, representatives or agents shall, directly or indirectly, encourage,
solicit, participate in or initiate discussions or negotiations with, or provide
any information to, any corporation, partnership, person or other entity or
group (other than Parent, Sub or any of their respective affiliates or
representatives) concerning any proposal relating to a takeover proposal. The
Stockholder will immediately cease any existing activities, discussions or
negotiations with any parties conducted heretofore with respect to any proposal
relating to a takeover proposal. The Stockholder will immediately
3
4
communicate to Parent the terms of any proposal, discussion, negotiation or
inquiry (and will disclose any written materials received by the Stockholder in
connection with such proposal, discussion, negotiation or inquiry) and the
identity of the party making such proposal or inquiry which it may receive in
respect of any such takeover proposal. Any action taken by the Company or any
member of the Board of Directors of the Company in accordance with Section
5.2(b) of the Merger Agreement shall be deemed not to violate this Section 4(d).
(e) Reasonable Efforts. Subject to the terms and conditions of this
Agreement, each of the parties hereto agrees to use all reasonable efforts to
take, or cause to be taken, all actions, and to do, or cause to be done, all
things necessary, proper or advisable under applicable Laws to consummate and
make effective the transactions contemplated by this Agreement. Each party shall
promptly consult with the other and provide any necessary information and
material with respect to all filings made by such party with any Governmental
Entity in connection with this Agreement and the transactions contemplated
hereby.
(f) Waiver of Appraisal Rights. The Stockholder hereby waives any
rights of appraisal or rights to dissent from the Merger that it may have.
4. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent and Sub as follows:
(a) Ownership of Securities. The Stockholder is the record and
Beneficial Owner of the Existing Securities, as set forth on Schedule I. On the
date hereof, the Existing Securities constitute all of the Securities owned of
record or Beneficially Owned by the Stockholder. The Stockholder has sole voting
power and sole power to issue instructions with respect to the matters set forth
in Sections 2 and 3 hereof, sole power of disposition, sole power to demand
appraisal rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Existing Securities with no
limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(b) Power; Binding Agreement. The Stockholder has the power and
authority to enter into and perform all of the Stockholder's obligations under
this Agreement. The execution, delivery and performance of this Agreement by the
Stockholder will not violate any other agreement to which the Stockholder is a
party including, without limitation, any voting agreement, proxy arrangement,
pledge agreement, shareholders agreement or voting trust. This Agreement has
been duly and validly executed and delivered by the Stockholder and constitutes
a valid and binding agreement of the Stockholder, enforceable against the
Stockholder in accordance with its terms, except that such enforceability (i)
may be limited by bankruptcy, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors' rights generally and (ii)
is subject to general principles of equity. There is no beneficiary or holder of
a voting trust certificate or other interest of any trust of which the
Stockholder is a trustee, or any party to any other agreement or arrangement,
whose consent is required for the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated hereby.
4
5
(c) No Conflicts. Except for filings under the HSR Act, other
applicable Antitrust Laws and the Exchange Act (i) no filing with, and no
permit, authorization, consent or approval of, any Governmental Entity is
necessary for the execution and delivery of this Agreement by the Stockholder,
the consummation by the Stockholder of the transactions contemplated hereby and
the compliance by the Stockholder with the provisions hereof and (ii) none of
the execution and delivery of this Agreement by the Stockholder, the
consummation by the Stockholder of the transactions contemplated hereby or
compliance by the Stockholder with any of the provisions hereof, except in cases
in which any conflict, breach, default or violation described below would not
interfere with the ability of such Stockholder to perform such Stockholder's
obligations hereunder, shall (A) conflict with or result in any breach of any
organizational documents applicable to the Stockholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse of time
or both) a default (or give rise to any third party right of termination,
cancellation, modification or acceleration) under, any of the terms, conditions
or provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other instrument
or obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of its properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to the Stockholder or any of such Stockholder's properties or assets.
(d) No Liens. Except as permitted by this Agreement, the Existing
Securities and the certificates representing such securities are now, and at all
times during the term hereof will be, held by the Stockholder, or by a nominee
or custodian for the benefit of the Stockholder, free and clear of all Liens,
proxies, voting trusts or agreements, understandings or arrangements or any
other rights whatsoever, except for any such Liens or proxies arising hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial adviser's or
other similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of the Stockholder.
(f) Reliance by Parent. The Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement.
5. Further Assurances. From time to time, at the other party's request
and without further consideration, each party hereto shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or desirable to consummate and make effective, in the most expeditious
manner practicable, the transactions contemplated by this Agreement.
6. Stop Transfer. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Securities, unless such transfer
is made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in the Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of shares or the like, the
term
5
6
"Securities" shall refer to and include the Securities as well as all such stock
dividends and distributions and any shares into which or for which any and all
of the Securities may be changed or exchanged.
7. Termination. This Agreement and Stockholder's obligation to tender
provided herein shall terminate on the earlier of the payment for the Securities
pursuant to the Offer and the termination of the Merger Agreement in accordance
with its terms.
8. No Limitation. Nothing in this Agreement shall be construed to
prohibit any officer or affiliate of the Stockholder who is or has designated a
member of the Board of Directors of the Company from taking any action solely in
his capacity as a member of the Board of Directors of the Company or from
exercising his fiduciary duties as a member of such Board of Directors.
9. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(b) Binding Agreement. This Agreement and the obligations hereunder
shall attach to the Securities and shall be binding upon any person or entity to
which legal or beneficial ownership of the Securities shall pass, whether by
operation of law or otherwise, including, without limitation, the Stockholder's
administrators or successors. Notwithstanding any transfer of Securities, the
transferor shall remain liable for the performance of all obligations of the
transferor under this Agreement.
(c) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise by any of the parties without the prior
written consent of the other parties, except that Sub may assign, in its sole
discretion, any of or all its rights, interests and obligations under this
Agreement to Parent or to any direct or indirect wholly owned subsidiary of
Parent, but no such assignment shall relieve Sub and Parent of any of its
obligations under this Agreement. This Agreement will be binding upon, inure to
the benefit of, and be enforceable by, the parties and their respective
successors and assigns.
(d) Amendments, Waivers, Etc. This Agreement may not be amended,
changed, supplemented, waived or otherwise modified or terminated, except upon
the execution and delivery of a written agreement executed by the parties
hereto.
(e) Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, telecopied (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties at the following
addresses (or at such other address for a party as shall be specified by like
notice):
6
7
(i) if to Parent or Sub, to
Symantec Corporation
00000 Xxxxx Xxx.
Xxxxxxxxx, XX 00000
Attention: Chief Financial Officer
with copies to its counsel:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq.
(ii) if to the Stockholder, to
Quarterdeck Corporation
00000 Xxxxxxxx Xxx
Xxxxxx xxx Xxx, XX 00000
Attention: Chief Financial Officer
with copies to its counsel:
Xxxxxxxx & Associates
Suite 3950
000 Xxxxx Xxxxx Xxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Facsimile: 000-000-0000
(f) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
7
8
(h) Remedies Cumulative. All rights, powers and remedies provided
under this Agreement or otherwise available in respect hereof at law or in
equity shall be cumulative and not alternative, and the exercise of any thereof
by any party shall not preclude the simultaneous or later exercise of any other
such right, power or remedy by such party.
(i) No Waiver. The failure of any party hereto to exercise any
rights, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such or other right, power or remedy or to
demand such compliance.
(j) No Third Party Beneficiaries. This Agreement is not intended to
be for the benefit of, and shall not be enforceable by, any person or entity who
or which is not a party hereto.
(k) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of law thereof.
(l) Waiver of Jury Trial. Each party hereto hereby waives any right
to a trial by jury in connection with any action, suit or proceeding brought in
connection with this Agreement.
(m) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed to be an original, but all of which, taken
together, shall constitute one and the same agreement.
8
9
IN WITNESS WHEREOF, Parent, Sub and Stockholder have caused this Agreement
to be signed by their respective officers thereunto duly authorized, all as of
the date first written above.
PARENT: SYMANTEC CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
SUB: QUARTERDECK ACQUISITION CORPORATION
By:
-------------------------------------
Name:
-----------------------------------
Title:
-----------------------------------
STOCKHOLDER: -----------------------------------------
Xxxxx Xxxxxx-Xxxxx
9
10
EXHIBIT I
SHARES OWNED OPTIONS HELD
------------ ------------
0 275,000
