Voting Agreement
EXHIBIT
99.2
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).
Recitals
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 shareholder of
the Company, shall not, and shall not authorize, encourage or permit any person or entity on
Shareholder’s behalf to, directly or indirectly, take any action that would, or could reasonably be
expected to, result in the violation by the Company of Section 5.2 of the Merger Agreement;
provided that if the Shareholder is a director of the Company or has employees who are directors of
the Company, nothing herein shall prevent the Shareholder (or such employees) from taking any
action solely in such Shareholder’s (or employee’s) capacity as a director of the Company in the
exercise of such director’s fiduciary duties with respect to an Alternative Transaction Proposal or
Superior Proposal in compliance with the terms of the Merger Agreement.
5. Consent and Waiver; Termination of Existing Agreements. Shareholder hereby gives
any consents or waivers that are reasonably required for the consummation of the Merger under the
terms of any agreement or instrument to which Shareholder is a party or subject or in respect of
any rights Shareholder may have in connection with the Merger or the other transactions provided
for in the Merger Agreement (whether such rights exist under the certificate of incorporation or
bylaws of the Company, any Contract to which the Company is a party or by which it is, or any of
its assets are, bound under statutory or common law or otherwise). Without limiting the generality
or effect of the foregoing, Shareholder hereby waives any and all rights to contest or object to
the execution and delivery of the Merger Agreement, the Company Board of Directors’ actions in
approving and recommending the Merger, the consummation of the Merger and the other transactions
provided for in the Merger Agreement, or to seek damages or other legal or equitable relief in
connection therewith. From and after the Effective Time, Shareholder’s right to receive cash on
the terms and subject to the conditions set forth in the Merger Agreement shall constitute
Shareholder’s sole and exclusive right against the Company and/or Acquiror in respect of
Shareholder’s ownership of the Shares or status as a shareholder of the Company or any agreement or
instrument with the Company pertaining to the Shares or Shareholder’s status as a shareholder of
the Company.
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6. Confidentiality. Shareholder shall hold any information regarding this Agreement
and the Merger in strict confidence and shall not divulge any such information to any third person
until the Acquiror has publicly disclosed the Merger.
7. Appraisal Rights. Shareholder agrees not to exercise any rights of appraisal or
any dissenters’ rights that Shareholder may have (whether under applicable law or otherwise) or
could potentially have or acquire in connection with the Merger.
8. Miscellaneous.
(a) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given on (i) the date of delivery, if delivered personally or by commercial
delivery service, or (ii) on the date of confirmation of receipt (or the next Business Day, if the
date of confirmation of receipt is not a Business Day), if sent via facsimile (with confirmation of
receipt), to the parties hereto at the following address (or at such other address for a party as
shall be specified by like notice):
| (i) | if to Acquiror, to: | |||
| Attention | ||||
| Facsimile No.: | ||||
| Telephone No.: | ||||
| with a copy (which shall not constitute notice) to: | ||||
| Fenwick & West LLP | ||||
| 000 Xxxxxxxxxx Xxxxxx | ||||
| Xxxxxxxx Xxxx, XX 00000 | ||||
| Attention: Xxxxxx X. Xxxxxxx | ||||
| Facsimile No.: (000) 000-0000 | ||||
| Telephone No.: (000) 000-0000 | ||||
| (ii) | if to Shareholder, to the address set forth for the Shareholder on the signature page hereof. |
(b) Specific Performance; Injunctive Relief. The parties hereto acknowledge that
Acquiror will be irreparably harmed and that there will be no adequate remedy at law for a
violation of any of the covenants or agreements of Shareholder set forth herein or in the Proxy.
Therefore, it is agreed that, in addition to any other remedies that may be available to Acquiror
upon any such violation of this Agreement or the Proxy, Acquiror shall have the right to enforce
such covenants and agreements and the Proxy by specific performance, injunctive relief or by any
other means available to Acquiror at law or in equity and Shareholder hereby waives any and all
defenses which could exist in its favor in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such enforcement.
(c) Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same instrument and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other parties hereto; it
being understood that all parties need not sign the same counterpart.
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(d) Entire Agreement; Nonassignability; Parties in Interest. This Agreement and the
documents and instruments and other agreements specifically referred to herein or delivered
pursuant hereto (including, without limitation, the Proxy) (i) constitute the entire agreement
among the parties with respect to the subject matter hereof and supersede all prior agreements and
understandings, both written and oral, among the parties with respect to the subject matter hereof
and (ii) are not intended to confer, and shall not be construed as conferring, upon any person
other than the parties hereto any rights or remedies hereunder. Neither this Agreement nor any of
the rights, interests, or obligations under this Agreement may be assigned or delegated, in whole
or in part, by operation of law or otherwise, by Shareholder without the prior written consent of
Acquiror, and any such assignment or delegation that is not consented to shall be null and void.
This Agreement, together with any rights, interests or obligations of Acquiror hereunder, may be
assigned or delegated in whole or in part by Acquiror to any affiliate of Acquiror without the
consent of or any action by Shareholder upon notice by Acquiror to Shareholder as herein provided.
Subject to the preceding sentence, this Agreement shall be binding upon, inure to the benefit of,
and be enforceable by, the parties hereto and their respective successors and assigns (including,
without limitation, any person to whom any Shares are sold, transferred or assigned).
(e) Severability. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement shall continue in full force and effect and
the application of such provision to other persons or circumstances shall be interpreted so as
reasonably to effect the intent of the parties hereto. The parties hereto further agree to use
their commercially reasonable efforts to replace such void or unenforceable provision of this
Agreement with a valid and enforceable provision that shall achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(f) Remedies Cumulative. Except as otherwise provided herein, any and all remedies
herein expressly conferred upon a party shall be deemed cumulative with and not exclusive of any
other remedy conferred hereby, or by law or equity upon such party, and the exercise by a party of
any one remedy shall not preclude the exercise of any other remedy.
(g) Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Texas without reference to such state’s principles of conflicts of
law.
(h) Rules of Construction. The parties hereto agree that they have been represented
by counsel during the negotiation, preparation and execution of this Agreement and, therefore,
waive the application of any law, regulation, holding or rule of construction providing that
ambiguities in an agreement or other document shall be construed against the party drafting such
agreement or document.
(i) Additional Documents, Etc. Shareholder shall execute and deliver any additional
documents necessary or desirable, in the reasonable opinion of Acquiror, to carry out the purpose
and intent of this Agreement. Without limiting the generality or effect of the foregoing or any
other obligation of Shareholder hereunder, Shareholder hereby authorizes Acquiror to deliver a copy
of this Agreement to the Company and hereby agrees that each of the Company and Acquiror may rely
upon such delivery as conclusively evidencing the consents, waivers and terminations of Shareholder
referred to in Section 5, in each case for purposes of all agreements and instruments to which such
elections, consents, waivers and/or terminations are applicable or relevant.
(j) Termination. This Agreement shall terminate and shall have no further force or
effect from and after the Expiration Date and thereafter there shall be no liability or obligation
on the part
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of the Shareholder, provided, that no such termination shall relieve any party from
liability for any breach of this Agreement prior to such termination.
(k) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT,
OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS OF ANY PARTY HERETO IN
NEGOTIATION, ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to be executed as of
the date first above written.
| SYMANTEC CORPORATION | ||
| By: /s/ Xxxxxxx X. Xxxxx | ||
| Xxxxxxx
X. Xxxxx Chief Financial Officer and Senior Vice President of Finance |
||
| SHAREHOLDER: | ||
| Xxxxxx Xxxxx | ||
| (Print Name of Shareholder) | ||
| /s/ Xxxxxx Xxxxx | ||
| (Signature) | ||
| (Print name and title if signing on behalf of an entity) | ||
| 0000 Xxx Xxxxxx, Xxxxx 0000 | ||
| (Print Address) | ||
| Xxxxxxx, XX 00000 | ||
| (Print Address) | ||
| (Print Telephone Number) |
Shares beneficially owned on the date hereof:
| 323,662 shares of Company Common Stock |
[SIGNATURE PAGE TO VOTING AGREEMENT]
EXHIBIT A
The undersigned shareholder of BindView Development Corporation, a Texas corporation (the
“Company”), hereby irrevocably (to the fullest extent permitted by applicable law) appoints Xxxxxx
X. Xxxxxxxxx and Xxxxxxx X. Xxxxx of Symantec Corporation, a Delaware corporation (“Acquiror”), and
each of them, as the sole and exclusive attorneys and proxies of the undersigned, with full power
of substitution and resubstitution, to vote and exercise all voting and related rights (to the
fullest extent that the undersigned is entitled to do so) with respect to all of the shares of
capital stock of the Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of the Company issued or issuable in
respect thereof on or after the date hereof (collectively, the “Shares”) in accordance with the
terms of this Irrevocable Proxy. The Shares beneficially owned by the undersigned shareholder of
the Company as of the date of this Irrevocable Proxy are listed on the final page of this
Irrevocable Proxy. Upon the undersigned’s execution of this Irrevocable Proxy, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked and the undersigned
agrees not to grant any subsequent proxies or enter into any agreement or understanding with any
Person (as defined in the Merger Agreement (as defined below)) to vote or give instructions with
respect to the Shares and New Shares in any manner inconsistent with the terms of this Irrevocable
Proxy until after the Expiration Date (as defined below).
Until the Expiration Date, this Irrevocable Proxy is irrevocable (to the fullest extent
permitted by applicable law), is coupled with an interest, is granted pursuant to that certain
Voting Agreement dated as of even date herewith by and between Acquiror and the undersigned, and is
granted in consideration of Acquiror entering into that certain Agreement and Plan of Merger, dated
as of October 2, 2005, by and among Acquiror, Buena Vista Acquisition Corp., a Texas corporation
and wholly-owned subsidiary of Acquiror (“Merger Sub”) and the Company (the “Merger Agreement”),
pursuant to which Merger 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. As used herein, the term
“Expiration Date” shall mean the earlier to occur of (i) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger Agreement, and (ii) the
date and time of the valid termination of the Merger Agreement in accordance with its terms.
The attorneys and proxies named above, and each of them, are hereby authorized and empowered
by the undersigned, at any time prior to the Expiration Date, to act as the undersigned’s attorney
and proxy to vote the Shares, and to exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the Texas Business Corporations Act), at every annual, special or adjourned
meeting of the shareholders of the Company and in every written consent in lieu of such meeting as
follows: (i) in favor of approval of the Merger, the adoption of the Merger Agreement and the
Certificate of Merger and any matter that could reasonably be expected to facilitate the Merger and
(ii) 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.
The attorneys and proxies named above may not exercise this Irrevocable Proxy on any other
matter except as provided above. The undersigned shareholder may vote the Shares on all other
matters.
All authority herein conferred shall survive the death or incapacity of the undersigned and
any obligation of the undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
[Signature Page Follows]
This Irrevocable Proxy is coupled with an interest as aforesaid and is irrevocable. This
Irrevocable Proxy may not be amended or otherwise modified without the prior written consent of
Acquiror. This Irrevocable Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: October 2, 2005
| Xxxxxx Xxxxx | ||
| (Print Name of Shareholder) | ||
| /s/ Xxxxxx Xxxxx | ||
| (Signature of Shareholder) | ||
| (Print name and title if signing on behalf of an entity) | ||
| Shares beneficially owned on the date hereof: | ||
| 323,662 shares of Company Common Stock |
[SIGNATURE
PAGE TO IRREVOCABLE PROXY]
