VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
________, 2003 by and among the undersigned stockholder ("STOCKHOLDER") of
Nexland, Inc., a Delaware corporation (the "COMPANY"), and Symantec Corporation,
a Delaware corporation ("SYMANTEC").
RECITALS
A. Stockholder is the registered and/or beneficial owner of such number
of shares of the Company's common stock (the "COMMON STOCK") and options to
purchase shares of the Common Stock as is indicated on Exhibit A to this
Agreement.
B. Nebraska Acquisition Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of Symantec ("MERGER SUB"), and the Company are entering
into the Agreement and Plan of Merger (the "MERGER AGREEMENT"), dated as of the
date hereof, pursuant to which Merger Sub will merge with and into the Company
upon the terms and conditions set forth in the Merger Agreement (the "MERGER").
Capitalized terms not defined in this Agreement have the meanings ascribed to
them in the Merger Agreement.
C. The execution of this Agreement by Stockholder is a condition to
Symantec's obligation to execute the Merger Agreement.
D. The parties wish to provide for the voting arrangements set forth in
this Agreement.
In consideration of the mutual covenants and agreements set forth
herein, the Company's and Symantec's willingness to enter into the Merger
Agreement, and such other valuable consideration the receipt and sufficiency of
which is hereby acknowledged, the parties hereto agree as follows:
1. VOTING AGREEMENT. Subject to Section 3 below, Stockholder hereby
irrevocably agrees to vote (or cause to be voted) all of its shares of capital
stock of the Company as is indicated on EXHIBIT A and all other shares of
capital stock of the Company now owned or hereafter acquired, or which
Stockholder may be empowered to vote (the "SHARES"), from time to time and at
all times, whether at an annual or special meeting of the Company's
stockholders, or upon an action by written consent, (a) in favor of the adoption
of the Merger Agreement and the consummation of the transactions contemplated
therein, including the Merger, (b) against any action or agreement that would
result in a breach in any material respect of the Company and Symantec under the
Merger Agreement, and (c) except as otherwise agreed to in writing in advance by
the Company (other than the Merger and the other transactions contemplated by
the Merger Agreement), against: (i) any Acquisition Proposal, (ii) any change in
the board of directors of the Company other than in connection with the Merger,
(iii) any amendment of the Company's certificate of incorporation other than in
connection with the Merger or (iv) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, discourage
or materially and adversely affect the contemplated benefits to the Company of
the Merger and the other transactions contemplated by the Merger Agreement.
Stockholder shall not enter into any agreement or understanding, whether oral or
written, with any person or entity prior to the termination of this Agreement to
vote thereafter in a manner inconsistent with this Section 1.
2. IRREVOCABLE PROXY. Contemporaneously with the execution of this
Agreement, Stockholder has executed and delivered to Symantec a duly executed
proxy in the form attached hereto as EXHIBIT B (the "PROXY") with respect to
each meeting of stockholders of Company, such Proxy to cover the total number of
Shares for which Stockholder is entitled to vote at any such meeting. Upon the
execution of this Agreement by Stockholder, Stockholder hereby revokes any and
all prior proxies given by Stockholder with respect to the Shares and agrees not
to grant any subsequent proxies with respect to the Shares until on or after the
Expiration Date (as defined below). Symantec shall (i) vote for each proposal or
give its consent, as applicable, with respect to any matter described in Section
1(a) and (ii) vote against or withhold its consent, as applicable, with respect
to (A) any matter described in Section 1(b) and (B) unless agreed to in writing
in advance by the Company and Symantec, any matter described in Section 1(c).
3. TERM. This Agreement shall be effective as of the date hereof and
shall continue in effect until the earlier to occur of (i) the Effective Time of
the Merger or (ii) termination of the Merger Agreement in accordance with its
terms (the "EXPIRATION DATE").
4. SOLICITATION. Prior to the Expiration Date, Stockholder shall not,
directly or indirectly: (i) solicit, initiate or encourage (including by way of
furnishing nonpublic information) inquiries or proposals concerning any
Acquisition Proposal or, except as set for in the Merger Agreement, have
discussions or negotiations with any third party (other than Symantec or Merger
Sub) regarding any Acquisition Proposal (other than the Merger); or (ii) induce
or encourage any other stockholder of the Company to vote against, or fail to
vote in favor of, the Merger Agreement and the Merger. Stockholder shall notify
Symantec of any written inquiries or proposals it receives relating to any
Acquisition Proposal.
5. SPECIFIC ENFORCEMENT. The parties acknowledge and agree that the
parties hereto would be irreparably damaged in the event any of the provisions
of this Agreement were not performed by the parties in accordance with their
specific terms or were otherwise breached. Accordingly, it is agreed that
Symantec and the Company shall be entitled to an injunction to prevent breaches
of this Agreement and to specifically enforce this Agreement and the terms and
provisions hereof in any action instituted in any court of the United States or
any state thereof having subject matter jurisdiction, in addition to any other
remedy to which the parties may be entitled at law or in equity. Each party
consents to personal jurisdiction in any such action brought in the United
States District Court for the Northern District of California or in any court of
the State of California having subject matter jurisdiction.
6. AGREEMENT TO RETAIN SHARES. Stockholder agrees not to transfer
(except as may be specifically required by court order or by operation of law),
sell, exchange, pledge or otherwise dispose of or encumber the Shares, or to
make any offer or agreement relating thereto, at any time prior to the
Expiration Date, unless each person or entity to which any of such Shares are or
may be transferred shall have: (a) executed a counterpart of this Agreement and
a Proxy (with such modifications as Symantec may reasonably request); and (b)
agreed in writing to hold such Shares subject to all of the terms and provisions
of this Agreement.
7. WAIVER OF APPRAISAL RIGHTS. Stockholder hereby irrevocably and
unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenters' rights (including under
Section 262 of the General Corporation Law of the State of Delaware) and any
similar rights relating to the Merger or any related transaction that
Stockholder or any other person may have by virtue of the ownership of any
outstanding shares of Common Stock.
8. LEGEND REQUIREMENT. All certificates evidencing the Shares shall,
during the term of this Agreement, bear such restrictive legends as Symantec and
its counsel deem necessary or advisable under applicable law or pursuant to this
Agreement, and the Company agrees to so legend such Shares. Such legend may
include, without limitation, the following:
"THE SECURITIES REPRESENTED HEREBY ARE SUBJECT TO
CERTAIN VOTING RESTRICTIONS PURSUANT TO A VOTING
AGREEMENT RELATING TO SUCH SECURITIES, AND MAY NOT BE
SOLD OR OTHERWISE TRANSFERRED EXCEPT IN COMPLIANCE WITH
THE TERMS OF SUCH AGREEMENT."
9. REPRESENTATIONS AND WARRANTIES.
9.1 OWNERSHIP OF SHARES. Stockholder represents and warrants that
(a) it has good title to and is the sole record owner of the Shares and it does
not own beneficially or of record any other capital stock of the Company, (b)
the Shares are validly issued, fully paid and nonassessable and (c) except for
the encumbrances and restrictions arising hereunder, it has no knowledge of the
Shares that are owned by Stockholder being subject to any pledges, liens,
security interests, adverse claims, assessments, proxies, participations,
options, equities, charges or encumbrances of any nature whatsoever with respect
to the ownership of or right to vote or dispose of such Shares, except for
applicable securities laws and the transactions documents under which they were
issued.
9.2 AUTHORITY; DUE EXECUTION; ENFORCEABILITY. Stockholder hereby
represents and warrants that he has the full right, power, capacity and
authority to enter into this Agreement and Stockholder has sole voting power and
sole power of disposition with respect to the Shares with no restrictions on
Stockholder's voting rights or rights of disposition pertaining thereto. Each
party hereto represents and warrants that this Agreement has been duly and
validly executed and delivered by such party and constitutes a legal, valid and
binding obligation of such party enforceable against such party in accordance
with its terms, except as enforcement thereof may be limited against such party
by (a) bankruptcy, insolvency, reorganization, moratorium and similar laws, both
state and federal, affecting the enforcement of creditors' rights or remedies in
general as from time to time in effect or (b) the exercise by courts of equity
powers (the "ENFORCEABILITY EXCEPTIONS"). The Proxy, when duly executed and
delivered by Stockholder, will constitute the legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms, except as enforcement thereof may be limited against Stockholder by
the Enforceability Exceptions. If Stockholder is married and the Shares
constitute community property, this Agreement has been duly executed and
delivered by, and constitutes the legal, valid and binding obligation of,
Stockholder's spouse, enforceable against Stockholder's spouse in accordance
with its terms, subject to laws of general application relating to bankruptcy,
fraudulent conveyance, insolvency and the relief of debtors, and rules of law
governing specific performance, injunctive relief and other equitable remedies.
9.3 NO CONFLICTS OR CONSENTS. Each party hereto represents and
warrants that the execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby will not, with or without
giving of notice or the passage of time, (a) violate any judgment, award,
decree, injunction or order of any court, arbitrator or governmental agency
applicable to such party or its property or assets or any federal or state law,
statute or regulation, (b) conflict with, result in the breach of any provision
of or constitute a violation of or default under any agreement or instrument to
which such party is a party or by which such party or such party's property or
assets may be bound, or (c) require any consent or approval of any person.
9.4 TITLE TO SECURITIES. As of the date of this Agreement: (a)
Stockholder either (i) holds of record or (ii) beneficially owns with the right
to vote (in the case of clause (i) and (ii), free and clear of any liens,
claims, options, rights of first refusal, co-sale rights, charges or other
encumbrances (collectively, "LIENS")), other than a right of repurchase in favor
of the Company, the number of outstanding shares of Common Stock set forth on
EXHIBIT A hereof; and (b) Stockholder holds (free and clear of any Liens) the
options and other rights to acquire shares of Company Common Stock set forth
under the caption "Options and Other Rights to Purchase Common Stock" on EXHIBIT
A hereof; and (c) Stockholder does not directly or indirectly own any shares of
capital stock or other securities of the Company, or any option, warrant or
other right to acquire (by purchase, conversion or otherwise) any shares of
capital stock or other securities of the Company, other than the shares and
options and other rights specified on EXHIBIT A hereof.
9.5 RELIANCE BY SYMANTEC AND MERGER SUB. Stockholder understands
and acknowledges that Symantec and Merger Sub are entering into the Merger
Agreement in reliance, in part, upon Stockholder's execution and delivery of
this Agreement. Stockholder has sole voting power with respect to the Shares.
9.6 DUTY OF CANDOR. Stockholder represents and warrants that for
each patent application filed by Nexland with the U.S. Patent and Trademark
Office (the "USPTO"), Stockholder is not aware of any relevant references or
publications that either should have been disclosed or need to be disclosed to
the USPTO.
10. COVENANTS OF STOCKHOLDER. Except as set forth in the Merger
Agreement, Stockholder hereby covenants and agrees that during the term hereof
it shall not enter into any transaction, take any action or by inaction permit
any event to occur, that would result in any of the representations or
warranties of Stockholder herein contained not being true and correct.
Stockholder hereby waives any rights of appraisal or rights to dissent from the
Merger that Stockholder may have under Section 262 of the General Corporation
Law of the State of Delaware or otherwise.
11. CONFIDENTIALITY. Stockholder agrees, except as otherwise required
by legal process, (i) to hold any information regarding this Agreement and the
Merger in strict confidence, and (ii) not to divulge any such information to any
third person, until such time as Symantec or the Company has disclosed publicly
the Merger or the Expiration Date occurs or such information becomes public not
through disclosure by Stockholder.
12. MISCELLANEOUS.
12.1 ASSIGNMENT; TRANSFER OF RIGHTS. This Agreement shall inure
to the benefit of and be binding upon the respective executors, administrators,
heirs, successors, and assigns of the parties. The Shares may be transferred or
assigned by Stockholder; provided, however, that (i) Symantec and the Company
must receive written notice prior to the time of said transfer or assignment,
stating the name and address of said transferee or assignee, and (ii) such
transferee or assignee must agree in writing (which writing shall be in a form
acceptable to the Company) to be bound by the terms and conditions of this
Agreement.
12.2 FURTHER ASSURANCES. Stockholder shall cooperate with the
Company and execute and deliver any additional documents necessary or desirable,
in the opinion of the Company or its counsel, to evidence the irrevocable proxy
granted herein with respect to the Shares and to carry into effect the intent
and purposes of each provision of this Agreement.
12.3 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware, excluding those
laws that direct the application of the laws of another jurisdiction.
12.4 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
12.5 NOTICES. Any notice required or permitted hereunder shall be
given in writing and shall be conclusively deemed effectively given upon
personal delivery or delivery by courier, or on the first business day after
transmission if sent by confirmed facsimile transmission, or five days after
deposit in the United States mail, by registered or certified mail, postage
prepaid, addressed to the party at the address set forth below such party's name
on the signature page of this Agreement, or at a new address as such party may
designate by 10 days' advance written notice to the other parties hereto.
12.6 SEVERABILITY. In case any provision of this Agreement shall
be invalid, illegal or unenforceable, the validity, legality and enforceability
of the remaining provisions shall not in any way be affected or impaired
thereby.
12.7 SURVIVAL. The representations, warranties and agreements of
the parties contained in this Agreement shall survive the termination of this
Agreement and shall continue in full force and effect following termination of
the Agreement.
12.8 COSTS OF ENFORCEMENT. If any party to this Agreement seeks
to enforce its rights under this Agreement by legal proceedings, the
non-prevailing party shall pay all costs and expenses incurred by the prevailing
party, including, without limitation, all reasonable attorneys' fees.
12.9 ENTIRE AGREEMENT; AMENDMENT. This Agreement may be amended
or modified only by a written instrument executed by each of the parties hereto.
This Agreement, the Proxy and the Merger Agreement constitute and contain the
entire agreement of the parties with regard to the subject matter hereof and
thereof and supersede any and all prior negotiations, correspondence,
understandings and agreements between the parties regarding the subject matter
hereof or thereof.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, the parties have executed this Voting Agreement as
of the date first above written.
STOCKHOLDER: By:
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Name:
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Address:
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Telephone: ___________
Facsimile: ___________
SYMANTEC:
By: -----------------------------------
Name: John W. Thompson
Title: Chairman and Chief Executive Officer
Address: Symantec Corporation
20330 Stevens Creek Blvd.
Cupertino, California 95014
Telephone: (408) 517-8000
Facsimile: (408) 517-8121
[SIGNATURE PAGE TO VOTING AGREEMENT]
EXHIBIT A
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TO VOTING AGREEMENT
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___________ is the registered and/or beneficial owner of such number of shares
of the Company's common stock and options to purchase shares of the Common Stock
as indicated below:
Shares of common stock:_____________________
Company options:____________________________
EXHIBIT B
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TO VOTING AGREEMENT
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IRREVOCABLE PROXY
The undersigned stockholder of Nexland, Inc., a Delaware corporation
("NEXLAND"), hereby irrevocably (to the full extent permitted by Section 212 of
the General Corporation Law of the State of Delaware) appoints Gregory E. Myers
and Arthur F. Courville, and each of them, or any other designee of Symantec
Corporation, a Delaware corporation ("SYMANTEC"), 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 full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of Nexland that now are or hereafter may be beneficially
owned by the undersigned, and any and all other shares or securities of Nexland
issued or issuable in respect thereof on or after the date hereof (collectively,
the "Shares") in accordance with the terms of this Proxy. The Shares
beneficially owned by the undersigned stockholder of Nexland as of the date of
this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this 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 with respect to
the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the extent provided in Section 212 of the
General Corporation Law of the State of Delaware) and is granted in
consideration of Symantec entering into that certain Agreement and Plan of
Merger among Nexland, Nebraska Acquisition Sub, Inc., a Delaware corporation and
a wholly-owned subsidiary of Symantec ("MERGER SUB"), and Symantec (such
agreement as it may be amended or restated is hereinafter referred to as the
"MERGER AGREEMENT"). The Merger Agreement provides for the merger of Merger Sub
with and into Nexland (the "MERGER"). 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 or (ii) the date of 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 Section 228 of the General Corporation Law of the State of
Delaware), at every annual, special or adjourned meeting of the stockholders of
Nexland and in every written consent in lieu of such meeting as follows:
(a) in favor of the adoption of the Merger Agreement and the
consummation of the transactions contemplated therein, including the Merger,
(b) against any action or agreement that would result in a
breach in any material respect of Nexland and Symantec under the Merger
Agreement; and
(c) except as otherwise agreed to in writing in advance by
Nexland (other than the Merger and the other transactions contemplated by the
Merger Agreement), against:
(i) any Acquisition Proposal (as defined in the Merger
Agreement);
(ii) any change in the board of directors of Nexland
other than in connection with the Merger;
(iii) any amendment of Nexland's certificate of
incorporation other than in connection with the Merger; or
(iv) any other action which is intended, or could
reasonably be expected, to impede, interfere with, delay, postpone, discourage
or materially and adversely affect the contemplated benefits to Nexland of the
Merger and the other transactions contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned stockholder 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.
This Proxy is coupled with an interest and is irrevocable.
Dated: ________, 2003
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(Signature of Stockholder)
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(Print Name of Stockholder)
Shares beneficially owned:
_________ shares of Nexland, Inc. Common Stock