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AGREEMENT AND PLAN OF MERGER
BY AND AMONG
SYMANTEC CORPORATION
APACHE ACQUISITION CORP.
AND
AXENT TECHNOLOGIES, INC.
DATED AS OF JULY 26, 2000
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TABLE OF CONTENTS
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ARTICLE I -- THE MERGER..................................... 1
1.1 The Merger....................................... 1
1.2 Closing; Effective Time.......................... 1
1.3 Effects of the Merger............................ 1
1.4 Certificate of Incorporation; Bylaws............. 1
1.5 Directors and Officers of the Surviving
Corporation........................................... 2
ARTICLE II -- CONVERSION OF SHARES.......................... 2
2.1 Conversion of Stock.............................. 2
2.2 AXENT Options; AXENT Purchase Plan............... 3
2.3 Exchange of Stock Certificates................... 3
2.4 Lost, Stolen or Destroyed Certificates........... 4
2.5 Tax Consequences................................. 4
ARTICLE III -- REPRESENTATIONS AND WARRANTIES OF AXENT...... 5
3.1 Organization, Etc................................ 5
3.2 Authority Relative to This Agreement............. 5
3.3 No Violations, Etc............................... 6
3.4 Board Recommendation; State Takeover Statutes.... 6
3.5 Fairness Opinion................................. 6
3.6 Capitalization................................... 7
3.7 SEC Filings...................................... 7
3.8 Financial Statements............................. 7
3.9 Absence of Undisclosed Liabilities............... 8
3.10 Absence of Changes or Events..................... 8
3.11 Capital Stock of Subsidiaries.................... 8
3.12 Litigation....................................... 9
3.13 Insurance........................................ 9
3.14 Contracts and Commitments........................ 9
3.15 Labor Matters; Employment and Labor Contracts.... 10
3.16 Compliance with Laws............................. 11
3.17 Intellectual Property Rights..................... 11
3.18 Taxes............................................ 12
3.19 Employee Benefit Plans; ERISA.................... 13
3.20 Environmental Matters............................ 15
3.21 Officer's Certificate as to Tax Matters.......... 17
3.22 Affiliates....................................... 17
3.23 Finders or Brokers............................... 17
3.24 Registration Statement; Joint Proxy
Statement/Prospectus.................................. 17
3.25 [Intentionally Omitted].......................... 18
3.26 Title to Property................................ 18
3.27 Year 2000 Compliance............................. 18
3.28 No Existing Discussions.......................... 18
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ARTICLE IV -- REPRESENTATIONS AND WARRANTIES OF SYMANTEC AND
MERGER SUB.................................................. 18
4.1 Organization, Etc................................ 18
4.2 Authority Relative to This Agreement............. 19
4.3 No Violations, Etc............................... 19
4.4 Capitalization................................... 20
4.5 Registration Statement; Joint Proxy
Statement/Prospectus.................................. 20
4.6 SEC Filings...................................... 20
4.7 Compliance with Laws............................. 20
4.8 Financial Statements............................. 21
4.9 Absence of Undisclosed Liabilities............... 21
4.10 Absence of Changes or Events..................... 21
4.11 Litigation....................................... 21
4.12 Fairness Opinion................................. 22
4.13 [Intentionally Omitted].......................... 22
4.14 [Intentionally Omitted].......................... 22
4.15 Officer's Certificate as to Tax Matters.......... 22
4.16 Taxes............................................ 22
4.17 Intellectual Property............................ 22
4.18 Year 2000 Compliance............................. 23
ARTICLE V -- COVENANTS...................................... 23
5.1 Conduct of Business During Interim Period........ 23
5.2 No Solicitation.................................. 24
5.3 Access to Information............................ 25
5.4 Special Meetings; Registration Statement; Board
Recommendations....................................... 25
5.5 Commercially Reasonable Efforts.................. 28
5.6 Public Announcements............................. 28
5.7 Notification of Certain Matters.................. 28
5.8 Indemnification.................................. 28
5.9 [Intentionally Omitted].......................... 30
5.10 AXENT Affiliate Agreements....................... 30
5.11 Nasdaq Listing................................... 30
5.12 Resignation of Directors and Officers............ 30
5.13 Consents of Symantec's and AXENT's Accountants... 30
5.14 Form S-8......................................... 30
5.15 Notification of Certain Matters.................. 30
5.16 SEC Filings...................................... 30
5.17 Employee Benefit Matters......................... 31
5.18 Certain Matters.................................. 31
ARTICLE VI -- CONDITIONS TO THE OBLIGATIONS OF EACH PARTY... 32
6.1 Registration Statement........................... 32
6.2 AXENT Stockholder Approval....................... 32
6.3 Symantec Stockholder Approval.................... 32
6.4 Listing of Additional Shares..................... 32
6.5 Governmental Clearances.......................... 32
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6.6 Tax Matters...................................... 32
6.7 Statute or Decree................................ 32
ARTICLE VII -- CONDITIONS TO THE OBLIGATIONS OF AXENT AND
SYMANTEC.................................................... 33
7.1 Additional Conditions to the Obligations of
AXENT................................................. 33
7.2 Additional Conditions to the Obligations of
Symantec and Merger Sub............................... 33
ARTICLE VIII -- TERMINATION................................. 33
8.1 Termination...................................... 33
8.2 Notice of Termination; Effect of Termination..... 35
8.3 Fees and Expenses................................ 35
8.4 Amendment........................................ 36
8.5 Extension; Waiver................................ 36
ARTICLE IX -- MISCELLANEOUS................................. 36
9.1 Amendment and Modification....................... 36
9.2 Waiver of Compliance; Consents................... 36
9.3 Survival; Investigations......................... 36
9.4 Notices.......................................... 36
9.5 Assignment; Third Party Beneficiaries............ 37
9.6 Governing Law.................................... 37
9.7 Waiver of Jury Trial............................. 37
9.8 Counterparts..................................... 37
9.9 Severability..................................... 38
9.10 Interpretation................................... 38
9.11 Entire Agreement................................. 38
9.12 Definition of "law".............................. 38
9.13 Rules of Construction............................ 38
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Exhibits
Exhibit A -- Certificate of Merger
Exhibit B -- Form of Restated Certificate of Incorporation of Surviving
Corporation
Exhibit C -- Form of AXENT Affiliate Agreement
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INDEX OF DEFINED TERMS
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"Acquisition Proposal"...................................... Section 5.2(a)
"Acquisition Transaction"................................... Section 5.2(a)
"Action".................................................... Section 3.12(a)
"Affiliates"................................................ Section 3.22
"Agreement"................................................. Preamble
"Antitrust Division"........................................ Section 5.5(a)
"AXENT"..................................................... Preamble
"AXENT Acquisition"......................................... Section 8.3(b)
"AXENT Affiliate Agreement"................................. Section 5.10
"AXENT Balance Sheet"....................................... Section 3.8
"AXENT Certificate"......................................... Section 2.3(c)
"AXENT Common Stock"........................................ Recitals
"AXENT Contract"............................................ Section 3.14(b)
"AXENT Disclosure Statement"................................ Article III
"AXENT Financial Statements"................................ Section 3.8
"AXENT IP Rights"........................................... Section 3.17(a)
"AXENT Material Adverse Effect"............................. Section 3.1(a)
"AXENT Options"............................................. Section 2.2(a)
"AXENT Preferred Stock"..................................... Section 3.6(a)
"AXENT Purchase Plan"....................................... Section 2.2(b)
"AXENT SEC Reports"......................................... Section 3.7(a)
"AXENT Special Meeting"..................................... Section 5.4(a)
"AXENT Stock Plans"......................................... Section 2.2(a)
"AXENT Triggering Event".................................... Section 8.1(i)
"CERCLA".................................................... Section 3.20(a)(iii)
"Certificate of Merger"..................................... Section 1.2
"Closing"................................................... Section 1.2
"Closing Date".............................................. Section 1.2
"COBRA"..................................................... Section 3.15(b)
"Code"...................................................... Recitals
"Confidentiality Agreement"................................. Section 5.3
"Contractor"................................................ Section 3.20(a)(i)
"Delaware Law".............................................. Section 1.1
"Effective Time"............................................ Section 1.2
"Employee Benefit Plans".................................... Section 3.19(a)
"End Date".................................................. Section 8.1(b)
"Environment"............................................... Section 3.20(a)(ii)
"Environmental Law"......................................... Section 3.20(a)(iii)
"Environmental Permit"...................................... Section 3.20(a)(iv)
"ERISA"..................................................... Section 3.19(a)
"ERISA Affiliate"........................................... Section 3.19(a)
"Exchange Act".............................................. Section 3.3
"Exchange Agent"............................................ Section 2.3(a)
"Exchange Multiple"......................................... Section 2.1(g)
"Exchange Quotient"......................................... Section 2.1(g)
"Exchange Ratio"............................................ Section 2.1(a)
"Foreign Plan".............................................. Section 3.19(n)
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"FTC"....................................................... Section 5.5(a)
"GAAP"...................................................... Section 3.8
"Government Entity"......................................... Section 3.3
"group health plan"......................................... Section 3.19(k)
"Hazardous Material"........................................ Section 3.20(a)(v)
"Holder".................................................... Section 2.3(c)
"HSR Act"................................................... Section 3.3
"Indemnified Parties"....................................... Section 5.8(a)
"IRS"....................................................... Section 3.19(d)
"Joint Proxy Statement/Prospectus".......................... Section 3.24
"law"....................................................... Section 9.11
"Merger".................................................... Recitals
"Merger Sub"................................................ Preamble
"Merger Sub Common Stock"................................... Section 2.1(d)
"Nasdaq".................................................... Section 2.1(f)
"Notice of Superior Offer".................................. Section 5.4(e)
"Pension Plans"............................................. Section 3.19(a)
"Person".................................................... Section 2.1(g)
"Potential Acquiror"........................................ Section 5.2(a)
"Real Property"............................................. Section 3.20(b)(iv)
"Reference Date"............................................ Section 3.8
"Registration Statement".................................... Section 3.24
"SEC"....................................................... Section 3.7
"Securities Act"............................................ Section 3.7
"Subsidiary"................................................ Section 2.1(g)
"Superior Offer"............................................ Section 5.4(e)
"Surviving Corporation"..................................... Section 1.1
"Symantec".................................................. Preamble
"Symantec Balance Sheet".................................... Section 4.8
"Symantec Certificates"..................................... Section 2.1(b)
"Symantec Closing Value".................................... Section 2.1(f)
"Symantec Common Stock"..................................... Recitals
"Symantec Disclosure Statement"............................. Article IV
"Symantec Exchange Options"................................. Section 2.2(a)
"Symantec Financial Statements"............................. Section 4.8
"Symantec IP Rights"........................................ Section 4.17
"Symantec Material Adverse Effect".......................... Section 4.1
"Symantec Purchase Plan".................................... Section 2.2(b)
"Symantec SEC Reports"...................................... Section 4.6(a)
"Symantec Special Meeting".................................. Section 5.4(b)
"Symantec Subsidiaries"..................................... Section 4.1
"Tax" or "Taxes"............................................ Section 3.18(a)
"Tax Return"................................................ Section 3.18(b)
"Termination Fee"........................................... Section 8.3(b)
"Welfare Plans"............................................. Section 3.19(a)
"Year 2000 Compliant"....................................... Section 3.27
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "Agreement") is made and entered
into as of July 26, 2000 by and among Symantec Corporation, a Delaware
corporation ("Symantec"), Apache Acquisition Corp., a Delaware corporation and
wholly-owned subsidiary of Symantec ("Merger Sub"), and AXENT Technologies,
Inc., a Delaware corporation ("AXENT"), with respect to the following facts:
A. The respective boards of directors of Symantec, Merger Sub and
AXENT have approved and declared advisable the merger of Merger Sub with
and into AXENT (the "Merger"), upon the terms and subject to the conditions
set forth herein, and have determined that the Merger and the other
transactions contemplated by this Agreement are fair to, and in the best
interests of, their respective stockholders.
B. Pursuant to the Merger, among other things, the outstanding shares
of AXENT Common Stock, $0.02 par value ("AXENT Common Stock"), will be
converted into the right to receive shares of Symantec Common Stock, $0.01
par value ("Symantec Common Stock"), at the rate set forth herein.
C. For United States federal income tax purposes, it is intended that
the Merger will qualify as a reorganization under the provisions of Section
368(a) of the Internal Revenue Code of 1986, as amended (the "Code").
D. For financial accounting purposes, it is intended that the Merger
will be accounted for under the purchase method.
The parties agree as follows:
ARTICLE I
THE MERGER
1.1 The Merger. At the Effective Time (as defined in Section 1.2) and
subject to and upon the terms and conditions of this Agreement and the
applicable provisions of Delaware General Corporation Law (the "Delaware Law"),
(i) Merger Sub shall be merged with and into AXENT, (ii) the separate corporate
existence of Merger Sub shall cease, and (iii) AXENT shall be the surviving
corporation. AXENT, as the surviving corporation after the Merger, is
hereinafter sometimes referred to as the "Surviving Corporation."
1.2 Closing; Effective Time. The closing of the Merger and the other
transactions contemplated hereby (the "Closing") will take place at 8:00 a.m.,
local time, on a date to be specified by the parties (the "Closing Date"), which
shall be no later than the third business day after satisfaction or waiver of
the conditions set forth in Articles VI and VII, unless another time or date is
agreed to by the parties hereto. The Closing shall take place at the offices of
Heller Ehrman White & McAuliffe LLP, 525 University Avenue, Palo Alto,
California, or at such other location as the parties hereto shall mutually
agree. At the Closing, the parties hereto shall cause the Merger to be
consummated by filing a certificate of merger substantially in the form of
Exhibit A (the "Certificate of Merger") with the Secretary of State of the State
of Delaware, in accordance with the relevant provisions of Delaware Law (the
time of such filing, or such later time as may be agreed in writing by the
parties and specified in the Certificate of Merger, being the "Effective Time").
1.3 Effects of the Merger. The effects of the Merger shall be as provided
in this Agreement, the Certificate of Merger and the applicable provisions of
Delaware Law. Without limiting the foregoing, at the Effective Time all the
property, rights, privileges, powers and franchises of AXENT and Merger Sub
shall vest in the Surviving Corporation, and all debts, liabilities and duties
of AXENT and Merger Sub shall become the debts, liabilities and duties of the
Surviving Corporation.
1.4 Certificate of Incorporation; Bylaws.
(a) Subject to Section 5.8, from and after the Effective Time, the
certificate of incorporation of the Surviving Corporation shall be amended in
its entirety to read substantially as set forth in Exhibit B attached hereto.
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(b) Subject to Section 5.8, from and after the Effective Time the bylaws of
Merger Sub, as in effect immediately prior to the Effective Time, shall be the
bylaws of the Surviving Corporation.
1.5 Directors and Officers of the Surviving Corporation. The directors and
officers of Merger Sub immediately prior to the Effective Time shall serve as
the initial directors and officers of the Surviving Corporation, until their
respective successors are duly elected or appointed and qualified.
ARTICLE II
CONVERSION OF SHARES
2.1 Conversion of Stock. Pursuant to the Merger, and without any action on
the part of the holders of any outstanding shares of capital stock or securities
of AXENT or Merger Sub:
(a) As of the Effective Time, each share of AXENT Common Stock issued
and outstanding immediately prior to the Effective Time (other than shares
of AXENT Common Stock to be canceled pursuant to Section 2.1(c)) shall be
automatically converted into 0.50 (the "Exchange Ratio") of a fully paid
and nonassessable share of Symantec Common Stock.
(b) As of the Effective Time, each holder of a certificate or
certificates which immediately prior to the Effective Time represented
outstanding shares of AXENT Common Stock shall cease to have any rights
with respect thereto, except the right to receive (i) a certificate (or, at
the Holder's request, direct registration) representing the number of whole
shares of Symantec Common Stock into which such shares have been converted
(the "Symantec Certificates"), and (ii) cash in lieu of fractional shares
of Symantec Common Stock in accordance with Section 2.1(f), without
interest.
(c) As of the Effective Time, each share of AXENT Common Stock held of
record immediately prior to the Effective Time by AXENT, Merger Sub,
Symantec or any Subsidiary (as defined in Section 2.1(g)) of Symantec shall
be canceled and extinguished without any conversion thereof.
(d) As of the Effective Time, each share of Common Stock, $0.001 par
value, of Merger Sub (the "Merger Sub Common Stock") issued and outstanding
immediately prior to the Effective Time shall be canceled, extinguished and
automatically converted into one validly issued, fully paid and
nonassessable share of Common Stock, $0.001 par value, of the Surviving
Corporation. Each certificate evidencing ownership of a number of shares of
Merger Sub Common Stock shall be deemed to evidence ownership of the same
number of shares of Common Stock, $0.001, of the Surviving Corporation.
(e) Without limiting any other provision of this Agreement, the
Exchange Ratio shall be adjusted to reflect fully the effect of any stock
split, reverse stock split, stock dividend (including any dividend or
distribution of securities convertible into Symantec Common Stock or AXENT
Common Stock), extraordinary dividend or distribution, reorganization,
reclassification, recapitalization or other like change with respect to
Symantec Common Stock or AXENT Common Stock occurring or having a record
date or an effective date on or after the date hereof and prior to the
Effective Time.
(f) No fraction of a share of Symantec Common Stock will be issued by
virtue of the Merger. Instead, each holder of shares of AXENT Common Stock
who would otherwise be entitled to a fraction of a share of Symantec Common
Stock (after aggregating all fractional shares of Symantec Common Stock to
be received by such holder) shall receive from Symantec an amount of cash
(rounded down to the nearest whole cent) equal to the product of (i) such
fraction, multiplied by (ii) the Symantec Closing Value. For the purposes
of this Agreement, "Symantec Closing Value" shall mean the closing price
per share of Symantec Common Stock as reported on the Nasdaq National
Market System ("Nasdaq") on the trading day immediately preceding the
Effective Time.
(g) For the purposes of this Agreement, the "Exchange Multiple" of any
quantity means the product obtained from multiplying such quantity by the
Exchange Ratio, and the "Exchange Quotient" of any quantity means the
quotient obtained from dividing such quantity by the Exchange Ratio. For
purposes of this Agreement, (i) the term "Subsidiary", when used with
respect to any Person, means any
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corporation, entity or other organization, whether incorporated or
unincorporated, of which (A) at least a majority of the securities or other
interests having by their terms ordinary voting power to elect a majority
of the board of directors or others performing similar functions with
respect to such corporation, entity or other organization is directly or
indirectly owned or controlled by such Person (through ownership of
securities, by contract or otherwise) or (B) such Person or any Subsidiary
of such Person is a general partner of any general partnership or a manager
of any limited liability company. For the purposes of this Agreement, the
term "Person" means any individual, group, organization, corporation,
partnership, joint venture, limited liability company, trust or entity of
any kind.
2.2 AXENT Options; AXENT Purchase Plan.
(a) As of the Effective Time, Symantec shall assume all of the stock
options of AXENT, whether or not vested or immediately exercisable, outstanding
immediately prior to the Effective Time under the AXENT Stock Plans (as defined
below) (the "AXENT Options"). For purposes of this Agreement, "AXENT Stock
Plans" means the plans listed on Schedule 2.2(a). Each AXENT Option, whether or
not exercisable at the Effective Time, shall be assumed by Symantec in such a
manner that it shall be exercisable upon the same terms and conditions as under
the AXENT Stock Plan pursuant to which it was granted and the applicable option
agreement issued thereunder; provided that (i) each such option thereafter shall
be exercisable for a number of shares of Symantec Common Stock (rounded down to
the nearest whole share) equal to the Exchange Multiple of the number of shares
of AXENT Common Stock subject to such option, and (ii) the option price per
share of Symantec Common Stock thereafter shall equal the Exchange Quotient of
the option price per share of AXENT Common Stock subject to such option in
effect immediately prior to the Effective Time (the "Symantec Exchange
Options"); provided that if the Exchange Quotient results in an aggregate
exercise price that requires the payment of a fraction of a cent at the time of
exercise of Symantec Exchange Options for one or more shares of Symantec Common
Stock (with the exercise price considered in the aggregate for all such options
being exercised), then the aggregate exercise price for such shares shall be
further adjusted upwards to the nearest whole cent.
(b) AXENT shall amend the AXENT Employee Stock Purchase Plan (the "AXENT
Purchase Plan") so that as of the Effective Time: (i) the AXENT Purchase Plan
shall provide that no additional purchase rights shall be issued under it; (ii)
each purchase right granted under the AXENT Purchase Plan shall terminate, if it
has not previously terminated by its terms, on the date that the holder thereof
enrolls in the Symantec 1998 Employee Stock Purchase Plan (the "Symantec
Purchase Plan"); provided that if the purchase date under the AXENT Purchase
Plan coincides with the enrollment date under the Symantec Purchase Plan, the
purchase rights under the AXENT Purchase Plan shall not terminate prior to the
purchase on such date; and (iii) make such other modifications to the AXENT
Purchase Plan so as to permit the implementation of this Section 2.2(b). As of
the Effective Time, each then-outstanding purchase right granted under the AXENT
Purchase Plan shall be assumed by Symantec in such a manner that it shall be
exercisable upon the same terms and conditions (as amended as described above)
as under the AXENT Purchase Plan immediately before the Effective Time; provided
that each such purchase right shall thereafter be exercisable for whole shares
of Symantec Common Stock (rounded down to the nearest whole share) equal to the
Exchange Multiple of the number of shares of AXENT Common Stock for which such
purchase right would otherwise have been exercisable determined as of the
relevant grant date under the AXENT Purchase Plan at a purchase price per share
equal to 85% of the lower of: (i) the Exchange Quotient (rounded up to the
nearest whole cent) of the fair market value of a share of AXENT Common Stock on
the relevant grant date under the AXENT Purchase Plan or (ii) the fair market
value of a share of a Symantec Common Stock on the relevant purchase date.
2.3 Exchange of Stock Certificates.
(a) At or prior to the Effective Time, Symantec shall enter into an
agreement with a bank or trust company selected by Symantec and reasonably
acceptable to AXENT to act as the exchange agent for the Merger (the "Exchange
Agent").
(b) At or prior to the Effective Time, Symantec shall supply or cause to be
supplied to or for the account of the Exchange Agent in trust for the benefit of
the holders of AXENT Common Stock, for exchange
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pursuant to this Section 2.3 (i) certificates (or, at the Holder's request,
direct registration) evidencing the shares of Symantec Common Stock issuable
pursuant to Section 2.1 to be exchanged for outstanding shares of AXENT Common
Stock, and (ii) cash in an aggregate amount sufficient to make the payments in
lieu of fractional shares provided for in Section 2.1(f).
(c) Promptly after the Effective Time, Symantec shall mail or shall cause
to be mailed to each Holder a letter of transmittal in customary form (which
shall specify that delivery shall be effected, and risk of loss and title to the
AXENT Certificates shall pass, only upon proper delivery of the AXENT
Certificates to the Exchange Agent) and instructions for surrender of the AXENT
Certificates. Upon surrender to the Exchange Agent of an AXENT Certificate,
together with such letter of transmittal duly executed, the Holder shall be
entitled to receive in exchange therefor: (i) certificates evidencing that
number of shares of Symantec Common Stock issuable to such Holder in accordance
with this Article II; (ii) any dividends or other distributions that such Holder
has the right to receive pursuant to Section 2.3(d); and (iii) cash in respect
of fractional shares as provided in Section 2.1(f), and such AXENT Certificate
so surrendered shall forthwith be canceled. No certificate representing shares
of Symantec Common Stock will be issued to a Person who is not the registered
owner of a surrendered AXENT Certificate unless (i) the AXENT Certificate so
surrendered has been properly endorsed or otherwise is in proper form for
transfer, and (ii) such Person shall either (A) pay any transfer or other tax
required by reason of such issuance or (B) establish to the reasonable
satisfaction of the Surviving Corporation that such tax has been paid or is not
applicable. Until surrendered in accordance with the provisions of this Section
2.3, from and after the Effective Time, each AXENT Certificate shall be deemed
to represent, for all purposes other than payment of dividends, the right to
receive a certificate representing the number of full shares of Symantec Common
Stock as determined in accordance with this Article II and cash in lieu of
fractional shares as provided in Section 2.1(f). For purposes of this Agreement,
"AXENT Certificate" means a certificate which immediately prior to the Effective
Time represented shares of AXENT Common Stock, and "Holder" means a person who
holds one or more AXENT Certificates as of the Effective Time.
(d) No dividend or other distribution shall be paid or declared with
respect to Symantec Common Stock prior to the Effective Time. No dividend or
other distribution declared with respect to Symantec Common Stock with a record
date after the Effective Time will be paid to Holders of unsurrendered AXENT
Certificates until such Holders surrender their AXENT Certificates. Upon the
surrender of such AXENT Certificates, there shall be paid to such Holders,
promptly after such surrender, the amount of dividends or other distributions,
excluding interest, declared with a record date after the Effective Time and not
paid because of the failure to surrender AXENT Certificates for exchange.
(e) Notwithstanding anything to the contrary in this Agreement, neither the
Exchange Agent, Symantec, the Surviving Corporation nor any party hereto shall
be liable to any holder of shares of AXENT Common Stock for shares of Symantec
Common Stock or cash in lieu of fractional shares delivered to a public official
pursuant to any applicable abandoned property, escheat or similar law.
2.4 Lost, Stolen or Destroyed Certificates. In the event that any AXENT
Certificates shall have been lost, stolen or destroyed, the Exchange Agent shall
issue and pay in respect of such lost, stolen or destroyed AXENT Certificates,
upon the making of an affidavit of that fact by the holder thereof, certificates
representing the shares of Symantec Common Stock as may be required pursuant to
Section 2.1 and cash in lieu of fractional shares, if any, as may be required
pursuant to Section 2.1(f) and any dividends or distributions payable pursuant
to Section 2.3(d); provided, however, that Symantec may, in its discretion and
as a condition precedent to the issuance thereof, require the owner of such
lost, stolen or destroyed AXENT Certificates to deliver a bond in such sum as it
may reasonably direct as indemnity against any claim that may be made against
Symantec or the Exchange Agent with respect to the AXENT Certificates alleged to
have been lost, stolen or destroyed.
2.5 Tax Consequences. For United States federal income tax purposes, it is
intended by the parties hereto that this Agreement is a "plan of reorganization"
and that the Merger qualify as a reorganization within the meaning of Section
368(a) of the Code.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF AXENT
AXENT makes to Symantec and Merger Sub the representations and warranties
contained in this Article III, in each case subject to the exceptions set forth
in the disclosure statement, dated as of the date hereof (the "AXENT Disclosure
Statement"). The AXENT Disclosure Statement shall be arranged in schedules
corresponding to the numbered and lettered Sections of this Article III, and the
disclosure in any Schedule of the AXENT Disclosure Statement shall only qualify
the corresponding Section of this Article III, unless the disclosure contained
in such Section contains such information so as to enable a reasonable person to
determine that such disclosure qualifies or otherwise applies to other Sections
of this Article III.
3.1 Organization, Etc.
(a) Each of AXENT and its Subsidiaries is a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, and has all requisite corporate power and authority to own, lease
and operate its properties and to carry on its business as now being conducted.
Each of AXENT and its Subsidiaries is duly qualified as a foreign Person to do
business, and is in good standing, in each jurisdiction where the character of
its owned or leased properties or the nature of its activities makes such
qualification necessary, except where the failure to be so qualified or in good
standing would not, individually or in the aggregate, reasonably be expected to
have an AXENT Material Adverse Effect. For the purposes of this Agreement,
"AXENT Material Adverse Effect" means any change, event or effect that is
materially adverse to the consolidated business, results of operations or
financial condition of AXENT and its Subsidiaries taken as a whole; provided,
however, that: (i) any adverse change, event or effect arising from or relating
to general business or economic conditions which does not affect AXENT in a
materially disproportionate manner, shall not be deemed to constitute, and shall
not be taken into account in determining whether there has been, an "AXENT
Material Adverse Effect"; (ii) any adverse change, event or effect relating to
or affecting the software industry generally or the security software industry
generally, which does not affect AXENT in a materially disproportionate manner,
shall not be deemed to constitute, and shall not be taken into account in
determining whether there has been, an "AXENT Material Adverse Effect"; and
(iii) any adverse change, event or effect arising from or relating to the
announcement or pendency of the Merger, including, but not limited to, changes
or effects which result from the loss of customers or delay, cancellation or
cessation of orders for AXENT's products, shall not be deemed to constitute, and
shall not be taken into account in determining whether there has been, an "AXENT
Material Adverse Effect".
(b) Neither AXENT nor any of its Subsidiaries is in violation of any
provision of its certificate of incorporation, bylaws or any other charter
document. Schedule 3.1(b) of the AXENT Disclosure Statement sets forth (i) the
full name of each Subsidiary of AXENT, its capitalization and the ownership
interest of AXENT and each other Person (if any) therein, (ii) the jurisdiction
in which each such Subsidiary is organized, (iii) each jurisdiction in which
AXENT and each of its Subsidiaries is qualified to do business as a foreign
Person, and (iv) the names of the current directors and officers of AXENT and of
each Subsidiary of AXENT. AXENT has made available to Symantec accurate and
complete copies of the certificate of incorporation, bylaws and any other
charter documents, as currently in effect, of AXENT and each of its
Subsidiaries.
3.2 Authority Relative to This Agreement. AXENT has full corporate power
and authority to (i) execute and deliver this Agreement and (ii) assuming the
approval of the Merger by a majority of the outstanding shares of AXENT Common
Stock at the AXENT Special Meeting or any adjournment or postponement thereof in
accordance with Delaware Law, consummate the Merger and the other transactions
contemplated hereby. The execution and delivery of this Agreement, and the
consummation of the Merger and the other transactions contemplated hereby, have
been duly and validly authorized by the unanimous vote of the board of directors
of AXENT, and no other corporate proceedings on the part of AXENT are necessary
to authorize this Agreement or to consummate the Merger and the other
transactions contemplated hereby (other than, with respect to the Merger, the
approval of the Merger by a majority of the outstanding shares of AXENT Common
Stock at the AXENT Special Meeting or any adjournment or postponement thereof in
accordance with the Delaware Law and the filing of the Certificate of Merger
with the Secretary of State of
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the State of Delaware). This Agreement has been duly and validly executed and
delivered by AXENT and, assuming due authorization, execution and delivery by
Symantec and Merger Sub, constitutes a valid and binding agreement of AXENT,
enforceable against AXENT in accordance with its terms, except to the extent
that its enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
3.3 No Violations, Etc. No filing with or notification to, and no permit,
authorization, consent or approval of, any court, administrative agency,
commission, or other governmental or regulatory body, authority or
instrumentality ("Government Entity") is necessary on the part of AXENT for the
consummation by AXENT of the Merger and the other transactions contemplated
hereby, or for the exercise by Symantec and the Surviving Corporation of full
rights to own and operate the business of AXENT and its Subsidiaries as
presently being conducted, except (i) for the filing of the Certificate of
Merger as required by Delaware Law, (ii) the applicable requirements of the
Securities and Exchange Act of 1934, as amended (together with the Rules and
Regulations promulgated thereunder, the "Exchange Act"), state securities or
"blue sky" laws and state takeover laws, and (iii) any filing required under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976 (the "HSR Act"). Neither
the execution and delivery of this Agreement, nor the consummation of the Merger
and the other transactions contemplated hereby, nor compliance by AXENT with all
of the provisions hereof and thereof, nor the exercise by Symantec and the
Surviving Corporation of full rights to own and operate the business of AXENT
and its Subsidiaries as presently being conducted will, subject to obtaining the
approval of the this Agreement by the holders of a majority of the outstanding
shares of AXENT Common Stock at the AXENT Special Meeting or any adjournment
thereof in accordance with Delaware Law, (i) conflict with or result in any
breach of any provision of the certificate of incorporation, bylaws or other
charter document of AXENT or any of its Subsidiaries, (ii) violate any order,
writ, injunction, decree, statute, rule or regulation applicable to AXENT or any
of its Subsidiaries, or by which any of their properties or assets may be bound,
or (iii) result in a violation or breach of, or constitute (with or without due
notice or lapse of time or both) a default under, or result in any change in, or
give rise to any right of termination, cancellation, acceleration, redemption or
repurchase under, any of the terms, conditions or provisions of any note, bond,
mortgage, indenture, deed of trust, license, lease, contract, agreement or other
instrument or obligation to which AXENT or any of its Subsidiaries is a party or
by which any of them or any of their properties or assets may be bound, except
in the case of clauses (ii) or (iii) above, for any such conflicts, breaches,
violations, defaults or other occurrences that would not (x) individually or in
the aggregate, reasonably be expected to have an AXENT Material Adverse Effect,
or (y) prevent or materially impair or delay the consummation of the
transactions contemplated by this Agreement. Schedule 3.3 of the AXENT
Disclosure Statement lists all consents, waivers and approvals required to be
obtained in connection with the consummation of the transactions contemplated
hereby under any of AXENT's or any of its Subsidiaries' notes, bonds, mortgages,
indentures, deeds of trust, licenses or leases, contracts, agreements or other
instruments or obligations the failure to obtain which would reasonably be
expected to have an AXENT Material Adverse Effect.
3.4 Board Recommendation; State Takeover Statutes. The board of directors
of AXENT has, at a meeting of such board duly held on June 26, 2000, (i)
approved and adopted this Agreement, (ii) determined that this Agreement is
advisable, fair to and in the best interests of the stockholders of AXENT, (iii)
resolved to recommend adoption of this Agreement to the stockholders of AXENT,
and (iv) resolved that AXENT take all action necessary to make inapplicable any
restrictions on the execution, delivery and performance of this Agreement and
the consummation of the transactions contemplated hereby that may result from
the provisions of all applicable state antitakeover statutes or regulations
including but not limited to Section 203 of the Delaware Law.
3.5 Fairness Opinion. AXENT has received the opinion of Chase Securities
Inc. dated the date of the approval of this Agreement by the board of directors
of AXENT to the effect that the Exchange Ratio is fair to AXENT's stockholders
from a financial point of view, and has provided a copy of such opinion to
Symantec.
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3.6 Capitalization.
(a) The authorized capital stock of AXENT consists of 50,000,000 shares of
AXENT Common Stock and 5,000,000 shares of Preferred Stock, $0.02 par value
("AXENT Preferred Stock"). As of July 24, 2000, there were (i) 28,886,050 shares
of AXENT Common Stock outstanding, (ii) no shares of AXENT Preferred Stock
outstanding, and (iii) no treasury shares.
(b) There are no equity securities of any class of AXENT, or any securities
convertible into or exercisable for any such equity securities, issued, reserved
for issuance or outstanding. Except for the AXENT Options and purchase rights
under the AXENT Purchase Plan, there are no warrants, options, convertible
securities, calls, rights, stock appreciation rights, preemptive rights, rights
of first refusal, or agreements or commitments of any nature obligating AXENT to
issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity interests of AXENT, or obligating AXENT
to grant, issue, extend, accelerate the vesting of, or enter into, any such
warrant, option, convertible security, call, right, stock appreciation right,
preemptive right, right of first refusal, agreement or commitment. To the
knowledge of AXENT, there are no voting trusts, proxies or other agreements or
understandings with respect to the capital stock of AXENT. For purposes of this
Agreement, "to the knowledge of AXENT," or words of similar import, shall mean
the actual knowledge of directors and executive officers of AXENT and the
persons set forth on Schedule 3.6(b).
(c) True and complete copies of each AXENT Stock Plan and the AXENT
Purchase Plan, and of the forms of all agreements and instruments relating to or
issued under each thereof, have been made available to Symantec. Such
agreements, instruments, and forms have not been amended, modified or
supplemented, and there are no agreements to amend, modify or supplement any
such agreements, instruments or forms.
(d) Schedule 3.6(d) of the AXENT Disclosure Statement sets forth the
following information with respect to each AXENT Option: the aggregate number of
shares issuable thereunder, the type of option, the grant date, the expiration
date, the exercise price and the vesting schedule. Each AXENT Option was granted
in accordance with the terms of the AXENT Stock Plan applicable thereto. The
terms of each of the AXENT Stock Plans do not prohibit the assumption of the
AXENT Options as provided in Section 2.2(a). Except as set forth on Schedule
3.6(d), consummation of the Merger will not accelerate vesting of any AXENT
Option.
3.7 SEC Filings. AXENT has filed with the Securities and Exchange
Commission (the "SEC") all required forms, reports, registration statements and
documents required to be filed by it with the SEC (collectively, all such forms,
reports, registration statements and documents filed since January 1, 1997 are
referred to herein as the "AXENT SEC Reports"). All of the AXENT SEC Reports
complied as to form, when filed (or, if amended or superseded by filing prior to
the date hereof, then on the date of such filing), in all material respects with
the applicable provisions of the Securities Act of 1933, as amended (together
with the rules and regulations promulgated thereunder, the "Securities Act") and
the Exchange Act. Accurate and complete copies of the AXENT SEC Reports have
been made available to Symantec. The AXENT SEC Reports (including all exhibits
and schedules thereto and documents incorporated by reference therein) did not,
at the time they were filed (or, if amended or superseded by filing prior to the
date hereof, then on the date of such filing), contain any untrue statement of a
material fact or omit to state a material fact required to be stated therein or
necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading. To the knowledge of AXENT, except as
disclosed in the AXENT SEC Reports, each of AXENT's officers and directors has
complied with all filing requirements under Section 13 and Section 16(a) of the
Exchange Act.
3.8 Financial Statements. Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the AXENT SEC
Reports (the "AXENT Financial Statements"), (x) was prepared in accordance with
generally accepted accounting principles ("GAAP") applied on a consistent basis
throughout the periods involved (except as may be indicated in the notes thereto
or, in the case of unaudited interim financial statements, as may be permitted
by the SEC on Form 10-Q under the Exchange Act) and (y) fairly presented the
consolidated financial position of AXENT and its Subsidiaries as at the
respective dates thereof and the consolidated results of its operations and cash
flows for the periods indicated, consistent with the books and records of AXENT,
except that the unaudited interim financial
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statements were or are subject to normal and recurring year-end adjustments
which were not, or are not expected to be, material in amount. The balance sheet
of AXENT contained in AXENT's Form 10-Q for the quarter ended March 31, 2000
(the "Reference Date") is hereinafter referred to as the "AXENT Balance Sheet."
3.9 Absence of Undisclosed Liabilities. Neither AXENT nor any of its
Subsidiaries has any liabilities (absolute, accrued, contingent or otherwise)
other than liabilities or obligations: (i) included in the AXENT Balance Sheet
and the related notes to the financial statements; (ii) reflected in the AXENT
SEC Reports through the date of the filing of AXENT's Quarterly Report on Form
10-Q in respect of the fiscal quarter ending March 31, 2000; (iii) liabilities
incurred since the Reference Date in the ordinary course of business consistent
with past practice which, individually or in the aggregate, would not reasonably
be expected to have an AXENT Material Adverse Effect; (iv) which otherwise are
not and will not have, individually or in the aggregate, an AXENT Material
Adverse Effect; or (v) under this Agreement.
3.10 Absence of Changes or Events. Except as contemplated by this
Agreement, since the Reference Date, AXENT has not incurred, suffered or made:
(i) any AXENT Material Adverse Effect as of the date of this Agreement; (ii) any
declaration, setting aside or payment of any dividend on, or other distribution
(whether in cash, stock or property) in respect of, any of AXENT's or any of its
Subsidiaries' capital stock, or any purchase, redemption or other acquisition by
AXENT of any of AXENT's capital stock or any other securities of AXENT or its
Subsidiaries or any options, warrants, calls or rights to acquire any such
shares or other securities except for repurchases which are not, individually or
in the aggregate, material in amount from employees following their termination
pursuant to the terms of their pre-existing stock option or purchase agreements;
(iii) any split, combination or reclassification of any of AXENT's or any of its
Subsidiaries' capital stock; (iv) any material change by AXENT in its accounting
methods, principles or practices, except as required by concurrent changes in
GAAP; (v) any material revaluation by AXENT of any of its material assets,
including writing off notes or accounts receivable other than in the ordinary
course of business; (vi) any granting by AXENT or any of its Subsidiaries of any
increase in compensation or fringe benefits to any of their officers or
employees, or any payment by AXENT or any of its Subsidiaries of any bonus to
any of their officers or employees, or any granting by AXENT or any of its
Subsidiaries of any increase in severance or termination pay, other than in the
ordinary course, consistent with past practice, or any entry by AXENT or any of
its Subsidiaries into, or material modification or amendment of, any currently
effective employment, severance, termination or indemnification agreement or any
agreement the benefits of which are contingent or the terms of which are
materially altered upon the occurrence of a transaction involving AXENT of the
nature contemplated hereby; (vii) any indebtedness for borrowed money exceeding
$250,000 in the aggregate, or any responsibility for the obligations of any
other individual or entity exceeding $100,000 in the aggregate, or any loans or
advances to any other individual or entity exceeding $100,000 in the aggregate,
or any oral or written material agreement or commitment material to AXENT and
its Subsidiaries taken as a whole, or involving in excess of $250,000 in the
aggregate; (viii) any disposition of any material properties (including
intangibles, real, personal or mixed); (ix) any amendment to the AXENT
certificate of incorporation, bylaws, or any other charter document, or
execution of any merger, consolidation, share exchange, business combination or
recapitalization; (x) any capital expenditure in any calendar month which, when
added to all other capital expenditures made by AXENT and its Subsidiaries in
such calendar month resulted in such capital expenditures exceeding $250,000 in
the aggregate; (xi) any payment, discharge or satisfaction of any material
claims other than the payment, discharge or satisfaction of liabilities
(including accounts payable) in the ordinary course of business, or any
collection or acceleration of the collection of any amounts owed (including
accounts receivable) other than collection in the ordinary course of business;
(xii) any resolution of any material claim or litigation, or any commencement of
a lawsuit other than for the routine collection of bills; or (xiii) any
agreement or proposal to do any of the things described in the preceding clauses
(i) through (xiii) other than as expressly contemplated or provided for in this
Agreement.
3.11 Capital Stock of Subsidiaries. AXENT is directly or indirectly the
record and beneficial owner of all of the outstanding shares of capital stock or
other equity interests of each of its Subsidiaries. All of such shares have been
duly authorized and are validly issued, fully paid, nonassessable and free of
preemptive rights with respect thereto and are owned by AXENT free and clear of
any claim, lien or encumbrance of any kind
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with respect thereto. There are no proxies or voting agreements with respect to
such shares, and there are not any existing options, warrants, calls,
subscriptions, or other rights or other agreements or commitments obligating
AXENT or any Subsidiaries to issue, transfer or sell any shares of capital stock
of any Subsidiary or any other securities convertible into, exercisable for, or
evidencing the right to subscribe for any such shares. AXENT does not directly
or indirectly own any interest in any Person except the Subsidiaries.
3.12 Litigation.
(a) Except as set forth in AXENT's Form 10-K for the year ended December
31, 1999, there is no private or governmental claim, action, suit (whether in
law or in equity), investigation or proceeding of any nature ("Action") pending
or, to the knowledge of AXENT, threatened against AXENT or any of its
Subsidiaries, or any of their respective officers and directors (in their
capacities as such), or involving any of their assets, before any court,
governmental or regulatory authority or body, or arbitration tribunal, except
for those Actions which, individually and in the aggregate, would not reasonably
be expected to have an AXENT Material Adverse Effect. There is no Action pending
or, to the knowledge of AXENT, threatened which in any manner challenges, seeks
to, or is reasonably likely to prevent, enjoin, alter or delay the transactions
contemplated by this Agreement.
(b) There is no outstanding judgment, order, writ, injunction or decree of
any court, governmental or regulatory authority or body, or arbitration tribunal
in a proceeding to which AXENT, any Subsidiary of AXENT, or any of their assets
is or was a party or by which AXENT, any Subsidiary of AXENT, or any of their
assets is bound, except for those judgments, orders, writs, injunctions or
decrees which, individually or in the aggregate, would not reasonably be
expected to have an AXENT Material Adverse Effect.
3.13 Insurance. Schedule 3.13 of the AXENT Disclosure Statement lists all
insurance policies (including without limitation workers' compensation insurance
policies) covering the business, properties or assets of AXENT and its
Subsidiaries, the premiums and coverages of such policies, and all claims in
excess of $50,000 made against any such policies since January 1, 1997. All such
policies are in effect, and true and complete copies of all such policies have
been made available to Symantec. AXENT has not received notice of the
cancellation or threat of cancellation of any of such policy.
3.14 Contracts and Commitments.
(a) Except as filed as an exhibit to an AXENT SEC Report, neither AXENT nor
its Subsidiaries is a party to or bound by any oral or written contract,
obligation or commitment which is a "material contract" for purposes of Rule 601
of Regulation S-K or otherwise required to be filed as an exhibit to any AXENT
SEC Report in any of the following categories:
(i) agreements or arrangements that contain severance pay,
understandings with respect to tax arrangements, understandings with
respect to expatriate benefits, or post-employment liabilities or
obligations;
(ii) agreements or plans under which benefits will be increased or
accelerated by the occurrence of any of the transactions contemplated by
this Agreement, or under which the value of the benefits will be calculated
on the basis of any of the transactions contemplated by this Agreement;
(iii) agreements, contracts or commitments currently in force relating
to the disposition or acquisition of assets other than in the ordinary
course of business, or relating to an ownership interest in any
corporation, partnership, joint venture or other business enterprise;
(iv) agreements, contracts or commitments for the purchase of
materials, supplies or equipment which provide for purchase prices
substantially greater than those presently prevailing for such materials,
supplies or equipment, or which are with sole or single source suppliers;
(v) guarantees or other agreements, contracts or commitments under
which AXENT or any of its Subsidiaries is absolutely or contingently liable
for (A) the performance of any other person, firm or corporation (other
than AXENT or its Subsidiaries), or (B) the whole or any part of the
indebtedness or liabilities of any other person, firm or corporation (other
than AXENT or its Subsidiaries);
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(vi) powers of attorney authorizing the incurrence of a material
obligation on the part of AXENT or its Subsidiaries;
(vii) agreements, contracts or commitments which limit or restrict (A)
where AXENT or any of its Subsidiaries may conduct business, (B) the type
or lines of business (current or future) in which they may engage, or (C)
any acquisition of assets or stock (tangible or intangible) by AXENT or any
of its Subsidiaries;
(viii) agreements, contracts or commitments containing any agreement
with respect to a change of control of AXENT or any of its Subsidiaries;
(ix) agreements, contracts or commitments for the borrowing or lending
of money, or the availability of credit (except credit extended by AXENT or
any of its Subsidiaries to customers in the ordinary course of business and
consistent with past practice);
(x) any hedging, option, derivative or other similar transaction and
any foreign exchange position or contract for the exchange of currency;
(xi) any joint marketing or joint development agreement, or any
license or distribution agreement relating to any AXENT product.
(b) Neither AXENT nor any of its Subsidiaries, nor to AXENT's knowledge,
any other party to an AXENT Contract (as defined below), has breached, violated
or defaulted under, or received notice that it has breached, violated or
defaulted under, (nor does there exist any condition under which, with the
passage of time or the giving of notice or both, could reasonably be expected to
cause such a breach, violation or default under), any material agreement,
contract or commitment to which AXENT or any of its Subsidiaries is a party or
by which any of them or any of their properties or assets may be bound (any such
agreement, contract or commitment, an "AXENT Contract"), other than any
breaches, violations or defaults which individually or in the aggregate would
not reasonably be expected to have an AXENT Material Adverse Effect.
(c) Each AXENT Contract is a valid, binding and enforceable obligation of
AXENT and to AXENT's knowledge, of the other party or parties thereto, in
accordance with its terms, and in full force and effect, except where the
failure to be valid, binding, enforceable and in full force and effect would not
reasonably be expected to have an AXENT Material Adverse Effect and to the
extent enforcement may be limited by applicable bankruptcy, insolvency,
moratorium or other laws affecting the enforcement of creditors' rights
governing or by general principles of equity.
(d) An accurate and complete copy of each material AXENT Contract has been
made available to Symantec.
3.15 Labor Matters; Employment and Labor Contracts.
(a) None of AXENT or any of its Subsidiaries is a party to any union
contract or other collective bargaining agreement, nor to the knowledge of AXENT
or any of its Subsidiaries are there any activities or proceedings of any labor
union to organize any of its employees. Each of AXENT and its Subsidiaries is in
compliance with all applicable (i) laws, regulations and agreements respecting
employment and employment practices, (ii) terms and conditions of employment,
and (iii) occupational health and safety requirements, except for those failures
to comply which, individually or in the aggregate, would not reasonably be
expected to have an AXENT Material Adverse Effect.
(b) There is no labor strike, slowdown or stoppage pending (or any labor
strike or stoppage threatened) against AXENT or any of its Subsidiaries. No
petition for certification has been filed and is pending before the National
Labor Relations Board with respect to any employees of AXENT or any of its
Subsidiaries who are not currently organized. Neither AXENT nor any of its
Subsidiaries has any obligations under the Consolidated Omnibus Budget
Reconciliation Act of 1985, as amended ("COBRA"), with respect to any former
employees or qualifying beneficiaries thereunder, except for obligations that
would not reasonably be expected to have, individually or in the aggregate, an
AXENT Material Adverse Effect. There are no controversies pending or, to the
knowledge of AXENT or any of its Subsidiaries, threatened, between
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AXENT or any of its Subsidiaries and any of their respective employees, which
controversies would reasonably be expected to have, individually or in the
aggregate, an AXENT Material Adverse Effect.
3.16 Compliance with Laws. Neither AXENT nor any of its Subsidiaries has
violated or failed to comply with any statute, law, ordinance, rule or
regulation (including without limitation relating to the export or import of
goods or technology) of any foreign, federal, state or local government or any
other governmental department or agency, except where any such violations or
failures to comply would not, individually or in the aggregate, reasonably be
expected to have an AXENT Material Adverse Effect. AXENT and its Subsidiaries
have all permits, licenses and franchises from governmental agencies required to
conduct their businesses as now being conducted and as proposed to be conducted,
except for those, the absence of which, would not, individually or in the
aggregate, reasonably be expected to have an AXENT Material Adverse Effect.
3.17 Intellectual Property Rights.
(a) AXENT and its Subsidiaries own or have the right to use all
intellectual property used to conduct their respective businesses (such
intellectual property and the rights thereto are collectively referred to herein
as the "AXENT IP Rights"). No royalties or other payments are payable to any
Person with respect to commercialization of any products presently sold or under
development by AXENT or its Subsidiaries.
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not constitute a
material breach of any instrument or agreement governing any AXENT IP Rights,
will not (i) cause the modification of any terms of any licenses or agreements
relating to any AXENT IP Rights including but not limited to the modification of
the effective rate of any royalties or other payments provided for in any such
license or agreement, (ii) cause the forfeiture or termination of any AXENT IP
Rights, (iii) give rise to a right of forfeiture or termination of any AXENT IP
Rights or (iv) materially impair the right of AXENT, the Surviving Corporation
or Symantec to use, sell or license any AXENT IP Rights or portion thereof.
(c) Neither the manufacture, marketing, license, sale or intended use of
any product or technology currently licensed or sold or under development by
AXENT or any of its Subsidiaries (i) violates in any material respect any
license or agreement between AXENT or any of its Subsidiaries and any third
party or (ii) infringes in any material respect any patents or other
intellectual property rights of any other party; and there is no pending or, to
the knowledge of AXENT, threatened claim or litigation contesting the validity,
ownership or right to use, sell, license or dispose of any AXENT IP Rights, or
asserting that any AXENT IP Rights or the proposed use, sale, license or
disposition thereof, or the manufacture, use or sale of any AXENT products,
conflicts or will conflict with the rights of any other party.
(d) AXENT has heretofore provided to Symantec a worldwide list of all
patents, trade names, trademarks and service marks, and applications for any of
the foregoing owned or possessed by AXENT or any of its Subsidiaries and true
and complete copies of such materials have been made available to Symantec.
(e) AXENT has provided to Symantec a true and complete copy of its standard
form of employee confidentiality agreement and taken commercially reasonably
necessary steps to ensure that all employees have executed such an agreement.
All consultants or third parties with access to proprietary information of AXENT
have executed appropriate agreements or are otherwise under obligations not to
disclose confidential AXENT IP Rights.
(f) Neither AXENT nor any of its Subsidiaries is aware or has reason to
believe that any of its employees or consultants is obligated under any
contract, covenant or other agreement or commitment of any nature, or subject to
any judgment, decree or order of any court or administrative agency, that would
interfere with the use of such employee's or consultant's best efforts to
promote the interests of AXENT and its Subsidiaries or that would conflict with
the business of AXENT as presently conducted or proposed to be conducted.
Neither AXENT nor any of its Subsidiaries has entered into any agreement to
indemnify any other person, including but not limited to any employee or
consultant of AXENT or any of its Subsidiaries, against any charge of
infringement, misappropriation or misuse of any intellectual property, other
than indemnification provisions contained in purchase orders, license
agreements, distribution agreements or other agreements arising in the ordinary
course of business. To the knowledge of AXENT, all current and former employees
and
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consultants of any of AXENT or any of its Subsidiaries have signed valid and
enforceable written assignments to AXENT or its Subsidiaries of any and all
rights or claims in any intellectual property that any such employee or
consultant has or may have by reason of any contribution, participation or other
role in the development, conception, creation, reduction to practice or
authorship of any invention, innovation, development or work of authorship or
any other intellectual property that is used in the business of AXENT, and AXENT
and its Subsidiaries possess signed copies of all such written assignments by
such employees and consultants.
3.18 Taxes.
(a) For the purposes of this Agreement, "Tax" or "Taxes" refers to any and
all federal, state, local and foreign taxes, assessments and other governmental
charges, duties, impositions and liabilities relating to taxes, including taxes
based upon or measured by gross receipts, income, profits, sales, use and
occupation, and value added, ad valorem, transfer, franchise, withholding,
payroll, recapture, employment, excise and property taxes, together with all
interest, penalties and additions imposed with respect to such amounts and any
obligations under any agreements or arrangements with any other person with
respect to such amounts and including any liability for taxes of a predecessor
entity. For purposes of this Agreement, "Tax Return" or "Tax Returns" refers to
all federal, state and local and foreign returns, estimates, information
statements and reports relating to Taxes.
(b) AXENT and each of its Subsidiaries have filed all Tax Returns required
to have been filed by them, and have paid (or AXENT has paid on behalf of its
Subsidiaries), all Taxes required to have been paid as shown on such Tax
Returns. The most recent financial statements contained in the AXENT SEC Reports
reflect an adequate accrual (which accruals were established in accordance with
GAAP) for the payment of all Taxes payable by AXENT and its Subsidiaries, as of
the date of such financial statements. Except as reasonably would not be
expected to have an AXENT Material Adverse Effect, no deficiencies for any Taxes
have been proposed, asserted or assessed against AXENT or any of its
subsidiaries. Neither AXENT nor any of its Subsidiaries has filed for any
extension of time to file any Tax Return which has not since been filed.
(c) AXENT and its Subsidiaries are not a party to any contract, agreement,
plan or arrangement, including but not limited to the provisions of this
Agreement, covering any employee or former employee of AXENT or any of its
Subsidiaries that, (i) could give rise to the payment of any amounts that would
constitute excess parachute payments within the meaning of Sections 280G
exceeding one million dollars in the aggregate with respect to the change in
ownership or control that may occur upon the consummation of the Merger, or (ii)
could give rise to the payment of any amount that would constitute a parachute
payment within the meaning of Sections 280G with respect to any change in
ownership or control of AXENT occurring after the Closing Date, other than
payments that (A) may be deemed to arise pursuant to acceleration provisions
contained in options issued by AXENT as described in Schedule 3.6(d), (B) may
arise pursuant to the terms of the Executive Severance Guidelines referred to in
Section 5.17, (C) are described in Prop. Treas. Regs. sec. 1.280G-1, Q & A 25,
or (D) may arise in connection with any event which may be considered to be
closely associated with a change in ownership or control described in Prop.
Treas. Regs. sec. 1.280G-1, Q & A 22. During the taxable year ending on the
Closing Date, AXENT and its Subsidiaries have not become obligated to make any
payment the deduction of which would be disallowed pursuant to Section 162(m) of
the Code to the extent of the excess of one million dollars over the amount of
any excess parachute payments referred to in (i) of the first sentence of this
Section 3.18(c).
(d) None of AXENT and its Subsidiaries has filed any consent agreement
under Section 341(f) of the Code or agreed to have Section 341(f)(2) of the Code
apply to any disposition of a subsection (f) asset (as defined in Section
341(f)(4) of the Code) owned by AXENT.
(e) None of AXENT and its Subsidiaries (i) has received any notice that it
is being audited by any taxing authority; (ii) has granted any presently
operative waiver of any statute of limitations with respect to, or any extension
of a period for the assessment of, any Tax; (iii) has permitted any Tax lien to
be placed on any asset of AXENT or any of its Subsidiaries except with respect
to Taxes not yet due and payable; and (iv) has availed itself of any Tax amnesty
or similar relief in any taxing jurisdiction.
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(f) None of AXENT and its Subsidiaries is aware of any reason why the
Merger will fail to qualify as a reorganization under the provisions of Section
368(a) of the Code.
(g) AXENT has never been a United States real property holding corporation
within the meaning of Section 897 of the Code.
(h) Neither AXENT nor any of its Subsidiaries has any liability for the
Taxes of any person other than itself, AXENT or another Subsidiary. Neither
AXENT nor any of its Subsidiaries is a party to any tax sharing or tax indemnity
agreement.
(i) None of the Subsidiaries is, or has ever been, a passive Foreign
investment company within the meaning of Section 1297 of the Code.
(j) Neither AXENT nor any of its Subsidiaries has, within the two-year
period ending on the Closing Date, made a distribution to which Code Section 355
(or so much of Section 356 as relates to Section 355) applies.
(k) AXENT is not subject to limitations under Code Section 382 that limit
the use of net operating losses otherwise available to it in its current taxable
year or built-in losses which may be recognized by it during such taxable year.
3.19 Employee Benefit Plans; ERISA.
(a) There are no "employee pension benefit plans" as defined in Section
3(2) of the Employee Retirement Income Security Act of 1974, as amended
("ERISA") ("Pension Plans"), "welfare benefit plans" as defined in Section 3(1)
of ERISA ("Welfare Plans"), or stock bonus, stock option, restricted stock,
stock appreciation right, stock purchase, bonus, incentive, deferred
compensation, severance, holiday, or vacation plans, or any other employee
benefit plan, program, policy or arrangement covering employees (or former
employees) employed in the United States that either is maintained or
contributed to by AXENT or any of its Subsidiaries or any of their ERISA
Affiliates (as hereinafter defined) or to which AXENT or any of its Subsidiaries
or any of their ERISA Affiliates is obligated to make payments or otherwise may
have any liability (collectively, the "Employee Benefit Plans") with respect to
employees or former employees of AXENT, its Subsidiaries, or any of their ERISA
Affiliates. For purposes of this Agreement, "ERISA Affiliate" shall mean any
person (as defined in Section 3(9) of ERISA) that is or has been a member of any
group of persons described in Section 414(b), (c), (m) or (o) of the Code,
including without limitation AXENT or a Subsidiary.
(b) AXENT and each of its Subsidiaries, and each of the Pension Plans and
Welfare Plans, are in compliance with the applicable provisions of ERISA, the
Code and other applicable laws, except where the failure to comply would not,
individually or in the aggregate, reasonably be expected to have an AXENT
Material Adverse Effect.
(c) All contributions to, and payments from, the Pension Plans which are
required to have been made in accordance with the Pension Plans have been timely
made, except where the failure to make such contributions or payments on a
timely basis would not, individually or in the aggregate, either impair AXENT's
ability to consummate the Merger and the other transactions contemplated hereby
or reasonably be expected to have an AXENT Material Adverse Effect.
(d) All of AXENT's Pension Plans intended to qualify under Section 401 of
the Code so qualify and no event has occurred and no condition exists with
respect to the form or operation of such Pension Plans which would cause the
loss of such qualification or the imposition of any material liability, penalty
or tax under ERISA or the Code.
(e) There are no (i) investigations pending or, to the knowledge of AXENT,
threatened by any governmental entity involving the Pension Plans or Welfare
Plans, nor (ii) pending or, to the knowledge of AXENT, threatened claims (other
than routine claims for benefits), suits or proceedings against any Pension
Benefit or Welfare Plan, against the assets of any of the trusts under any
Pension Benefit or Welfare Plan or against any fiduciary of any Pension Benefit
or Welfare Plan with respect to the operation of such plan or
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asserting any rights or claims to benefits under any Pension Benefit Plan or
against the assets of any trust under such plan, except for those which would
not, individually or in the aggregate, give rise to any liability which would
reasonably be expected to have an AXENT Material Adverse Effect. To the
knowledge of AXENT, there are no facts which would give rise to any liability
under this Section 3.19(e) except for those which would not, individually or in
the aggregate, either impair AXENT's ability to consummate the Merger and the
other transactions contemplated hereby or reasonably be expected to have an
AXENT Material Adverse Effect in the event of any such investigation, claim,
suit or proceeding.
(f) None of AXENT, any of its Subsidiaries or any employee of the
foregoing, nor any trustee, administrator, other fiduciary or any other "party
in interest" or "disqualified person" with respect to the Pension Plans or
Welfare Plans, has engaged in a "prohibited transaction" (as such term is
defined in Section 4975 of the Code or Section 406 of ERISA) other than such
transactions that would not, individually or in the aggregate, either impair
AXENT's ability to consummate the Merger and the other transactions contemplated
hereby or reasonably be expected to have an AXENT Material Adverse Effect.
(g) None of AXENT, any of its Subsidiaries, or any of their ERISA
Affiliates currently maintain or contribute to any pension plan subject to Title
IV of ERISA or Section 412 of the Code or Section 302 of ERISA.
(h) Neither AXENT nor any Subsidiary of AXENT nor any of their ERISA
Affiliates has any material liability under Title IV of ERISA that has not been
satisfied in full.
(i) Neither AXENT, any of its Subsidiaries nor any of their ERISA
Affiliates has any material liability (including any contingent liability under
Section 4204 of ERISA) with respect to any multiemployer plan, within the
meaning of Section 3(37) of ERISA, covering employees (or former employees)
employed in the United States.
(j) With respect to each of the Employee Benefit Plans, true, correct and
complete copies of the following documents have been made available to Symantec:
(i) the plan document and any related trust agreement, including amendments
thereto, (ii) any current summary plan descriptions and other material
communications to participants relating to the Employee Benefit Plans, (iii) the
three most recent Forms 5500, if applicable, and (iv) the most recent IRS
determination letter, if applicable.
(k) None of the Welfare Plans maintained by AXENT or any of its
Subsidiaries provides for continuing benefits or coverage for any participant or
any beneficiary of a participant following termination of employment, except as
may be required under COBRA, or except at the expense of the participant or the
participant's beneficiary. AXENT and each of its Subsidiaries which maintain a
"group health plan" within the meaning of Section 5000(b)(1) of the Code have
complied with the notice and continuation requirements of Section 4980B of the
Code, COBRA, Part 6 of Subtitle B of Title I of ERISA and the regulations
thereunder except where the failure to comply would not, individually or in the
aggregate, either impair AXENT's ability to consummate the Merger and the other
transactions contemplated hereby or reasonably be expected to have an AXENT
Material Adverse Effect.
(l) No liability under any Pension Benefit Plan or Welfare Plan has been
funded nor has any such obligation been satisfied with the purchase of a
contract from an insurance company as to which AXENT or any of its Subsidiaries
has received notice that such insurance company is in rehabilitation or a
comparable proceeding.
(m) Except as set forth in Schedule 3.19(m), the consummation of the
transactions contemplated by this Agreement will not result in an increase in
the amount of compensation or benefits or accelerate the vesting or timing of
payment of any benefits or compensation payable to or in respect of any employee
of AXENT or any of its Subsidiaries.
(n) AXENT and each of its Subsidiaries and each of the Foreign Plans are in
compliance with applicable laws, and all required contributions have been made
to the Foreign Plans, except where the failure to comply or make contributions
would not, individually or in the aggregate, either impair AXENT's ability to
consummate the Merger and the other transactions contemplated hereby or have an
AXENT Material
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Adverse Effect. Except to the extent that such underfunding would be reasonably
expected to have an AXENT Material Adverse Effect, each of the Foreign Plans
that is a funded defined benefit pension plan has a fair market value of plan
assets that is greater than the plan's liabilities, as determined in accordance
with applicable laws. For purposes hereof, the term "Foreign Plan" shall mean
any plan, program, policy, arrangement or agreement maintained or contributed to
by, or entered into with, AXENT or any Subsidiary with respect to employees (or
former employees) employed outside the United States to the extent the benefits
provided thereunder are not mandated by the laws of the applicable foreign
jurisdiction.
(o) Except in any such case if such, payment, acceleration would not,
individually or in the aggregate, have an AXENT Material Adverse Effect, each of
the Employee Benefit Plans and the Foreign Plans can be terminated by AXENT
within a reasonable period following the Effective Time in accordance with the
terms of such Plan (and the provisions of ERISA and the Code), without any
additional contribution to such Employee Benefit Plan or Foreign Plan or the
payment of any additional compensation or amount or the additional vesting or
acceleration of any vesting provided under the Employee Benefit Plan or Foreign
Plan.
3.20 Environmental Matters.
(a) For purposes of this Agreement:
(i) "Contractor" shall mean any person or entity, including but not
limited to partners, licensors, and licensees, with which AXENT formerly or
presently has any agreement or arrangement (whether oral or written) under
which such person or entity has or had physical possession of, and was or
is obligated to develop, test, process, manufacture or produce any product
or substance on behalf of AXENT.
(ii) "Environment" shall mean any land including, without limitation,
surface land and sub-surface strata, seabed or river bed and any water
(including, without limitation, coastal and inland waters, surface waters
and ground waters and water in drains and sewers) and air (including,
without limitation, air within buildings) and other natural or manmade
structures above or below ground.
(iii) "Environmental Law" means any law or regulation, now or
hereafter in effect and as amended, and any judicial or administrative
interpretation thereof, in each case relating to the Environment or harm to
or the protection of human health or animals or plants, including, without
limitation, laws relating to public and workers health and safety,
emissions, discharges or releases of chemicals or any other pollutants or
contaminants or industrial, radioactive, dangerous, toxic or hazardous
substances or wastes (whether in solid or liquid form or in the form of a
gas or vapor and including noise and genetically modified organisms) into
the Environment or otherwise relating to the manufacture processing use,
treatment, storage, distribution, disposal transport or handling of
substances or wastes. Environmental Laws include, without limitation, the
Comprehensive Environmental Response, Compensation and Liability Act, as
amended ("CERCLA"), the Resource Conservation and Recovery Act 42 USC, 6901
et seq., the Hazardous Materials Transportation Act 49 USC, 6901 et seq.,
the Clean Water Act 33, 1251 et seq., the Toxic Substances Control Act 15
USC, 2601 et seq., the Clean Air Act 42 USC, 7401 et seq., the Safe
Drinking Water Act 42 USC, 300f et seq., the Atomic Energy Act 42 USC, 2201
et seq., the Federal Food Drug and Cosmetic Act 21 USC, 136 et seq., and
the Federal Food Drug and Cosmetic Act 21 USC, 301 et seq., and equivalent
statutes in countries other than the United States of America.
(iv) "Environmental Permit" shall mean any permit, license, consent,
approval, certificate, qualification, specification, registration and other
authorization, and the filing of all notifications, reports and
assessments, required by any federal, state, local or foreign government or
regulatory entity pursuant to any Environmental Law.
(v) "Hazardous Material" shall mean any pollutant, contaminant, or
hazardous, toxic, medical, biohazardous, infectious or dangerous waste,
substance, gas, constituent or material, defined or regulated as such in,
or for purposes of, any Environmental Law, including, without limitation,
any asbestos, any petroleum, oil (including crude oil or any fraction
thereof), any radioactive substance, any polychlorinated biphenyls, any
toxin, chemical, virus, infectious disease or disease causing agent, and
any other substance that can give rise to liability under any Environmental
Law.
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(b) Except for such cases that, individually or in the aggregate, have not
and would not reasonably be expected to have an AXENT Material Adverse Effect:
(i) Each of AXENT and its Subsidiaries possesses all Environmental
Permits required under applicable Environmental Laws to conduct its current
business and to use and occupy the Real Property for its current business.
All Environmental Permits are in full force and effect and AXENT and each
of its Subsidiaries are, and to AXENT's knowledge have at all times been,
in compliance with the terms and conditions of such Environmental Permits.
(ii) There are no facts or circumstances indicating that any
Environmental Permits possessed by AXENT or any of its Subsidiaries would
or might be revoked, suspended, canceled or not renewed, and all
appropriate necessary action in connection with the renewal or extension of
any Environmental Permits possessed by AXENT or any its Subsidiaries
relating to the current business and the Real Property has been taken.
(iii) The execution and delivery of this Agreement and the
consummation by AXENT of the Merger and other transactions contemplated
hereby and the exercise by Symantec and the Surviving Corporation of rights
to own and operate the business of AXENT and its Subsidiaries and use and
occupy the Real Property and carry on its business substantially as
presently conducted will not affect the validity or require the transfer of
any Environmental Permits held by AXENT or any of its Subsidiaries and will
not require any notification, disclosure, registration, reporting, filing,
investigation or remediation under any Environmental Law.
(iv) AXENT and each of its Subsidiaries and, to the knowledge of
AXENT, all previous owners, lessees and occupants of the real property now
or previously owned, leased or occupied by AXENT and its Subsidiaries (the
"Real Property"), are in compliance with, and within the period of all
applicable statutes of limitation, have complied with all applicable
Environmental Laws and have not received notice of any liability under any
Environmental Law; and neither AXENT or any of its Subsidiaries nor any
portion of the Real Property is in violation of any Environmental Law.
(v) There is no civil, criminal or administrative action, suit,
demand, claim, complaint, hearing, notice of violation, investigation,
notice or demand letter, proceeding or request for information pending or
any liability (whether actual or contingent) to make good, repair,
reinstate or clean up any of the Real Property or any real property
previously owned, leased, occupied or used by AXENT or any of its
Subsidiaries. There is no act, omission, event or circumstance giving rise
or likely to give rise in the future to any such action, suit, demand,
claim, complaint, hearing, notice of violation, investigation, notice or
demand letter, proceeding, or request or any such liability or other
liabilities (A) against AXENT or any of its Subsidiaries, or (B) against
any person or entity, including but not limited to any Contractor, in
connection with which liability could reasonably be imputed or attributed
by law or contract to AXENT or any of its Subsidiaries.
(vi) No property or facility presently or formerly owned operated or
leased by AXENT or any of its present or former Subsidiaries or by any
respective predecessor in interest is listed or proposed for listing, nor
are there are any facts or circumstances which would or might give rise to
such an entry in any such register whether such register is now in
existence or is required to be established in the future on the National
Liability Information System both promulgated under the CERCLA or on any
comparable list established under any Environmental Law of a country other
than the United States of America nor has AXENT or any of its Subsidiaries
received any notification of potential or actual liability or any request
for information under CERCLA or any comparable foreign state or local law.
(vii) There has not been any disposal, spill, discharge, or release of
any Hazardous Material generated, used, owned, stored, or controlled by
AXENT, any of its Subsidiaries, or respective predecessors in interest, on,
at, or under any property presently or formerly owned, leased, or operated
by AXENT, its Subsidiaries, any predecessor in interest, or any Contractor,
and there are no Hazardous Materials located in, at, on, or under, or in
the vicinity of, any such facility or property, or at any other location,
in either case that could reasonably be expected to require investigation,
removal, remedial, or
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corrective action by AXENT or any of its Subsidiaries or that would
reasonably likely result in liability of, or costs in excess of, $250,000,
individually or in the aggregate, to AXENT or any of its Subsidiaries under
any Environmental Law.
(viii) (A) Other than cleaning and office supplies normally used in
the operation of an office, Hazardous Materials have not been generated,
used, treated, handled or stored on, or transported to or from, or released
on any Real Property or, any property adjoining any Real Property; (B)
AXENT and its Subsidiaries have disposed of all wastes, including those
wastes containing Hazardous Materials, in compliance with all applicable
Environmental Law and Environmental Permits; and (C) neither AXENT nor any
of its Subsidiaries has transported or arranged for the transportation of
any Hazardous materials to any location that is listed or proposed for
listing on the National Priorities List under CERCLA or on the CERCLIS or
any analogous state or country list or which is the subject of any
environmental claim.
(ix) There has not been any underground or aboveground storage tank or
other underground storage receptacle or related piping, or any impoundment
or other disposal area containing Hazardous Materials located on any Real
Property owned, leased or operated by AXENT, any of its Subsidiaries, or
respective predecessors in interest during the period of such ownership,
lease or operation, and no asbestos or polychlorinated biphenyls have been
used or disposed of, or have been located at, on, or under any such
facility or property during the period of such ownership lease or
operation;
(x) AXENT and its Subsidiaries have taken all actions necessary under
applicable requirements of Environmental Law to register any products or
materials required to be registered by AXENT or any of its Subsidiaries (or
any of their respective agents) thereunder.
(c) After a reasonable investigation made by AXENT, AXENT has made
available to Symantec all records and files, including, but not limited to, all
assessments, reports, studies, audits, analyses, tests and data in possession of
AXENT and its Subsidiaries concerning the existence of Hazardous Materials at
facilities or properties currently or formerly owned, operated, or leased by
AXENT or any present or former Subsidiary or predecessor in interest, or
concerning compliance by AXENT and its Subsidiaries with, or liability under,
any Environmental Law.
3.21 Officer's Certificate as to Tax Matters. AXENT knows of no reason why
it will be unable to deliver to Heller Ehrman White & McAuliffe LLP and Shaw
Pittman LLP at the Closing an Officer's Certificate in form sufficient to enable
each such counsel to render the opinions required by Section 6.6.
3.22 Affiliates. AXENT has delivered to Symantec in accordance with
Section 5.9 a list identifying all persons who to AXENT's knowledge may be
deemed to be "affiliates" of AXENT for purposes of Rule 145 under the Securities
Act ("Affiliates").
3.23 Finders or Brokers. Except for Updata Capital Inc. and Chase
Securities Inc., whose fees have been disclosed to Symantec, neither AXENT nor
any of its Subsidiaries has employed any investment banker, broker, finder or
intermediary in connection with the transactions contemplated hereby who might
be entitled to a fee or any commission the receipt of which is conditioned upon
consummation of the Merger.
3.24 Registration Statement; Joint Proxy Statement/Prospectus. The
information supplied by AXENT for inclusion or incorporation by reference in the
Registration Statement on Form S-4 registering the Symantec Common Stock to be
issued in the Merger (the "Registration Statement") as it relates to AXENT, at
the time the Registration Statement is declared effective by the SEC, shall not
contain any untrue statement of a material fact or omit to state any material
fact required to be stated therein or necessary in order to make the statements
therein not misleading. The information supplied by AXENT for inclusion in the
joint proxy statement/prospectus to be sent to the stockholders of AXENT in
connection with the AXENT Special Meeting (such joint proxy
statement/prospectus, as amended and supplemented is referred to herein as the
"Joint Proxy Statement/Prospectus"), at the date the Joint Proxy
Statement/Prospectus is first mailed to stockholders, at the time of the AXENT
Special Meeting and at the Effective Time shall not contain any untrue statement
of a material fact or omit to state any material fact required to be stated
therein or necessary in order to make the statements therein, in light of the
circumstances under which they were
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made, not misleading. If at any time prior to the Effective Time any event with
respect to AXENT or any of its Subsidiaries shall occur which is required to be
described in the Joint Proxy Statement/Prospectus, such event shall be so
described, and an amendment or supplement shall be promptly filed with the SEC
and, as required by law, disseminated to the stockholders of AXENT.
Notwithstanding the foregoing, AXENT makes no representation or warranty with
respect to any information supplied by Symantec or Merger sub which is contained
in the Registration Statement or Joint Proxy Statement/Prospectus.
3.25 [Intentionally Omitted].
3.26 Title to Property. Except where the failure to have such title or
leasehold would not, individually or in the aggregate, reasonably be expected to
have an AXENT Material Adverse Effect, AXENT and its Subsidiaries have good and
valid title to all of their respective properties, interests in properties and
assets, real and personal, reflected in the AXENT Balance Sheet or acquired
after the Reference Date, and have valid leasehold interests in all leased
properties and assets, in each case free and clear of all mortgages, liens,
pledges, charges or encumbrances of any kind or character, except (i) liens for
current taxes not yet due and payable, (ii) such imperfections of title, liens
and easements as do not and will not detract from or interfere with the use of
the properties subject thereto or affected thereby, or otherwise impair business
operations involving such properties, (iii) liens securing debt reflected on the
AXENT Balance Sheet, or (iv) liens recorded pursuant to any Environmental Law.
Schedule 3.26 of the AXENT Disclosure Statement identifies each material parcel
of real property owned or leased by AXENT or any of its Subsidiaries.
3.27 Year 2000 Compliance. All of AXENT's products currently being sold,
both individually and when operating in conjunction with all other systems or
products with which they are designed to interface, are Year 2000 Compliant.
"Year 2000 Compliant" means that such products will maintain functionality with
respect to the introduction, processing, or output of records containing dates
falling on or after January 1, 2000 equivalent to such functionality with
respect to dates falling before January 1, 2000, assuming that the other
software and hardware that deliver records to, receive records from, or interact
with such AXENT products are also Year 2000 Compliant.
3.28 No Existing Discussions. As of the date hereof, neither AXENT nor any
of its representatives is engaged, directly or indirectly, in any discussions or
negotiations with any other Person relating to any Acquisition Proposal (as
defined in Section 5.2(a)).
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF
SYMANTEC AND MERGER SUB
Symantec and Merger Sub make to AXENT the representations and warranties
contained in this Article IV, in each case subject to the exceptions set forth
in the disclosure statement (the "Symantec Disclosure Statement"). The Symantec
Disclosure Statement shall be arranged in schedules corresponding to the
numbered and lettered Sections of this Article IV, and the disclosure in any
Schedule of the Symantec Disclosure Statement shall only qualify the
corresponding Section of this Article IV, unless the disclosure contained in
such Section contains such information so as to enable a reasonable person to
determine that such disclosure qualifies or otherwise applies to other Sections
of this Article IV.
4.1 Organization, Etc.
(a) Each of Symantec, its subsidiaries listed on Section 4.1(a) of the
Symantec Disclosure Statement (the "Symantec Subsidiaries") and Merger Sub is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction of its incorporation and has all requisite power and
authority to own, lease and operate its properties and to carry on its business
as now being conducted. Symantec and each Symantec Subsidiary are duly qualified
as a foreign Person to do business, and are each in good standing, in each
jurisdiction where the character of its owned or leased properties or the nature
of its activities makes such qualification necessary, except where the failure
to be so qualified or in good standing would not, individually and in the
aggregate, be reasonably expected to have a Symantec Material Adverse Effect.
None of Symantec
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nor any Symantec Subsidiary is in violation of any provision of its certificate
of incorporation, bylaws or any other charter document. For the purposes of this
Agreement, "Symantec Material Adverse Effect" means any change, event or effect
that is materially adverse to the consolidated business or results of operations
or financial condition of Symantec and the Symantec Subsidiaries taken as a
whole; provided, however, that: (i) any adverse change, event or effect arising
from or relating to general business or economic conditions which does not
affect Symantec in a materially disproportionate manner, shall not be deemed to
constitute, and shall not be taken into account in determining whether there has
been, a "Symantec Material Adverse Effect"; (ii) any adverse change, event or
effect relating to or affecting the software industry generally or the security
software industry generally, which does not affect Symantec in a materially
disproportionate manner, shall not be deemed to constitute, and shall not be
taken into account in determining whether there has been, a "Symantec Material
Adverse Effect"; and (iii) any adverse change, event or effect arising from or
relating to the announcement or pendency of the Merger, including, but not
limited to, changes or effects which result from the loss of customers or delay,
cancellation or cessation of orders for Symantec products, shall not be deemed
to constitute, and shall not be taken into account in determining whether there
has been, a "Symantec Material Adverse Effect".
(b) Neither Symantec, the Symantec Subsidiaries or Merger Sub is in
violation of any provision of its certificate of incorporation, bylaws or other
charter documents.
4.2 Authority Relative to This Agreement. Each of Symantec and Merger Sub
has full corporate power and authority to execute and deliver this Agreement and
consummate the Merger and the other transactions contemplated hereby. The
execution and delivery of this Agreement, and the consummation of the Merger and
the other transactions contemplated hereby, have been duly and validly
authorized by the unanimous vote of the board of directors of each of Symantec
and Merger Sub, and no other corporate proceedings on the part of Symantec or
Merger Sub are necessary to authorize this Agreement or to consummate the Merger
and the other transactions contemplated hereby (other than, with respect to the
Merger, the approval of the issuance of Symantec Common Stock in the Merger by a
majority of the shares of Symantec Common Stock represented at the Symantec
Special Meeting or any adjournment or postponement thereof to the extent
required by applicable law or the Nasdaq Marketplace Rules and the filing of the
Certificate of Merger with the Secretary of State of the State of Delaware).
This Agreement has been duly and validly executed and delivered by Symantec and
Merger Sub and, assuming due authorization, execution and delivery by AXENT,
constitutes a valid and binding agreement of Symantec and Merger Sub,
enforceable against Symantec and Merger Sub in accordance with its terms, except
to the extent that its enforceability may be limited by applicable bankruptcy,
insolvency, reorganization, moratorium or other laws affecting the enforcement
of creditors' rights generally or by general equitable principles.
4.3 No Violations, Etc. No filing with or notification to, and no permit,
authorization, consent or approval of, any Government Entity is necessary on the
part of either Symantec or Merger Sub for the consummation by Symantec or Merger
Sub of the Merger or the other transactions contemplated hereby, except for (i)
the filing of the Certificate of Merger as required by Delaware Law, (ii) the
filing with the SEC and the effectiveness of the Registration Statement, (iii)
the applicable requirements of the Exchange Act, state securities or "blue sky"
laws, state takeover laws and the listing requirements of Nasdaq, (iv) any
filings required under and in compliance with the HSR Act, (v) where the failure
to make such filing or notification or to obtain such permit, authorization,
consent or approval would not prevent or materially delay the Merger, or
otherwise prevent or materially delay AXENT from performing its obligations
under this Agreement or, individually or in the aggregate, be reasonably
expected to have a Symantec Material Adverse Effect. Neither the execution and
delivery of this Agreement, nor the consummation of the Merger or the other
transactions contemplated hereby, nor compliance by Symantec and Merger Sub with
all of the provisions hereof will (i) conflict with or result in any breach of
any provision of the certificate of incorporation, bylaws or other charter
documents of Symantec or any Symantec Subsidiary, (ii) violate any material
order, writ, injunction, decree, statute, rule or regulation applicable to
Symantec or any Symantec Subsidiary, or by which any of their properties or
assets may be bound, or (iii) result in a violation or breach of, or constitute
(with or without due notice or lapse of time or both) a default, or give rise to
any right of termination, cancellation, acceleration, redemption or repurchase
under, any of the terms, conditions or provisions of any material note,
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bond, mortgage, indenture, deed of trust, license, lease, agreement or other
instrument or obligation to which Symantec or any Symantec Subsidiary is a party
or by which any of them or any of their properties or assets may be bound,
except in the case of clauses (ii) or (iii) above, for any such conflicts,
breaches, violations, defaults or other occurrences that would not (x)
individually or in the aggregate, reasonably be expected to have a Symantec
Material Adverse Effect, or (y) prevent or materially impair or delay the
consummation of the transactions contemplated by this Agreement.
4.4 Capitalization. The authorized capital stock of Symantec consists of
100,000,000 shares of Common Stock, $0.01 par value, of which there were
60,993,287 shares issued and outstanding as of July 25, 2000, and 1,000,000
shares of Preferred Stock, $0.01 par value, of which no shares are issued or
outstanding as of July 25, 2000, there are no warrants, options, convertible
securities, calls, rights, stock appreciation rights, preemptive rights, rights
of first refusal, or agreements or commitments of any nature obligating Symantec
to issue, deliver or sell, or cause to be issued, delivered or sold, additional
shares of capital stock or other equity interests of Symantec, or obligating
Symantec to grant, issue, extend, accelerate the vesting of, or enter into, any
such warrant, option, convertible security, call, right, stock appreciation
right, preemptive right, right of first refusal, agreement or commitment. The
authorized capital stock of Merger Sub consists of 1,000 shares of Common Stock,
$0.001 par value, 100 of which, as of the date hereof, are issued and
outstanding and are held by Symantec. Merger Sub was formed for the purpose of
consummating the Merger and has no material assets or liabilities except as
necessary for such purpose. All outstanding shares of Symantec Common Stock are
duly authorized, validly issued, fully paid and nonassessable and are not
subject to preemptive rights created by statute, the certificate of
incorporation or bylaws of Symantec or any agreement to which Symantec is a
party or by which it is bound.
4.5 Registration Statement; Joint Proxy Statement/Prospectus. The
information supplied by Symantec for inclusion or incorporation by reference in
the Registration Statement or Joint Proxy Statement/Prospectus as it relates to
Symantec or Merger Sub, at the time the Registration Statement is declared
effective or at the date the Joint Proxy Statement/Prospectus is first mailed to
stockholders, respectively, shall not contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein not misleading. If at any time
prior to the Effective Time any event with respect to Symantec or any Symantec
Subsidiary shall occur which is required to be described in the Registration
Statement or Joint Proxy Statement/Prospectus, such event shall be so described,
and an amendment or supplement shall be promptly filed with the SEC and, as
required by law, disseminated to the stockholders of AXENT. Notwithstanding the
foregoing, Symantec makes no representation or warranty with respect to any
information supplied by AXENT which is contained in the Registration Statement
or Joint Proxy Statement/Prospectus.
4.6 SEC Filings. Symantec has filed with the SEC all required forms,
reports, registration statements and documents required to be filed by it with
the SEC (collectively, all such forms, reports, registration statements and
documents filed after January 1, 1997 are referred to herein as the "Symantec
SEC Reports"), all of which complied as to form when filed in all material
respects with the applicable provisions of the Securities Act and the Exchange
Act, as the case may be. Accurate and complete copies of the Symantec SEC
reports have been made available to AXENT. The Symantec SEC Reports (including
all exhibits and schedules thereto and documents incorporated by reference
therein) did not, at the time they were filed (or, if amended or superseded by
filing prior to the date hereof, then on the date of such filing), contain any
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances under which they were made, not misleading. Except as disclosed in
the Symantec SEC Reports, to the knowledge of Symantec, each of Symantec's
officers and directors has complied with all filing requirements under Section
13 and Section 16(a) of the Exchange Act. For purposes of this Agreement, the
"knowledge of Symantec" shall mean the actual knowledge of Symantec's directors
and executive officers.
4.7 Compliance with Laws. Neither Symantec nor any Symantec Subsidiary has
violated or failed to comply with any statute, law, ordinance, rule or
regulation (including, without limitation, relating to the export or import of
goods or technology) of any foreign, federal, state or local government or any
other governmental department or agency, except where any such violations or
failures to comply would not, individually or in the
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aggregate, be reasonably expected to have a Symantec Material Adverse Effect.
Symantec and Merger Sub have all permits, licenses and franchises from
governmental agencies required to conduct their businesses as now being
conducted and as proposed to be conducted, except for those the absence of which
would not, individually or in the aggregate, be reasonably expected to have a
Symantec Material Adverse Effect.
4.8 Financial Statements. Each of the consolidated financial statements
(including, in each case, any related notes thereto) contained in the Symantec
SEC Reports (the "Symantec Financial Statements"), (x) was prepared in
accordance with GAAP applied on a consistent basis throughout the periods
involved (except as may be indicated in the notes thereto or, in the case of
unaudited interim financial statements, as may be permitted by the SEC on Form
10-Q under the Exchange Act) and (y) fairly presented the consolidated financial
position of Symantec and its Subsidiaries as at the respective dates thereof and
the consolidated results of its operations and cash flows for the periods
indicated, consistent with the books and records of Symantec, except that the
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not, or are not expected to be,
material in amount. The balance sheet of Symantec contained in Symantec's Form
10-K for the fiscal year ended March 31, 2000 is hereinafter referred to as the
"Symantec Balance Sheet."
4.9 Absence of Undisclosed Liabilities. Neither Symantec nor any of its
Subsidiaries has any liabilities (absolute, accrued, contingent or otherwise)
other than liabilities or obligations: (i) included in the Symantec Balance
Sheet and the related notes to the financial statements; (ii) reflected in the
Symantec SEC Reports through the date of the filing of Symantec's Annual Report
on Form 10-K in respect of the fiscal year ending March 31, 2000; (iii)
liabilities incurred since the Reference Date in the ordinary course of business
consistent with past practice which, individually or in the aggregate, would not
reasonably be expected to have an Symantec Material Adverse Effect; (iv) which
are not and will not have, individually or in the aggregate, an Symantec
Material Adverse Effect; and (v) under this Agreement.
4.10 Absence of Changes or Events. Except as contemplated by this
Agreement, between March 31, 2000 and the date of this Agreement, Symantec has
not incurred, suffered or made: (i) any Symantec Material Adverse Effect as of
the date of this Agreement; (ii) any declaration, setting aside or payment of
any dividend on, or other distribution (whether in cash, stock or property) in
respect of, any of Symantec's or any of its Subsidiaries' capital stock, or any
purchase, redemption or other acquisition by Symantec of any of Symantec's
capital stock or any other securities of Symantec or its Subsidiaries or any
options, warrants, calls or rights to acquire any such shares or other
securities except for repurchases which are not, individually or in the
aggregate, material in amount from employees following their termination
pursuant to the terms of their pre-existing stock option or purchase agreements;
(iii) any material change by Symantec in its accounting methods, principles or
practices, except as required by concurrent changes in GAAP; (iv) any material
revaluation by Symantec of any of its material assets, including writing off
notes or accounts receivable other than in the ordinary course of business; or
(v) any amendment to the Symantec certificate of incorporation, bylaws, or any
other charter document, or execution of any merger, consolidation, share
exchange, business combination or recapitalization.
4.11 Litigation.
(a) Except as set forth in Symantec's Form 10-K for the year ended March
31, 2000, there is no Action pending or, to the knowledge of Symantec,
threatened against Symantec or any of its Subsidiaries, or any of their
respective officers and directors (in their capacities as such), or involving
any of their assets, before any court, or governmental or regulatory authority
or body, or arbitration tribunal, except for those Actions which, individually
or in the aggregate, would not reasonably be expected to have a Symantec
Material Adverse Effect. There is no Action pending or, to the knowledge of
Symantec, threatened which in any manner challenges, seeks to, or is reasonably
likely to prevent, enjoin, alter or delay the transactions anticipated by this
Agreement.
(b) There is no outstanding judgment, order, writ, injunction or decree of
any court, governmental or regulatory authority or body, or arbitration tribunal
in a proceeding to which Symantec, any Subsidiary of Symantec, or any of their
assets is or was a party or by which Symantec, any Subsidiary of Symantec, or
any of
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their assets is bound, except for those judgments, orders, writs, injunctions or
decrees which, individually or in the aggregate, would not reasonably be
expected to have an Symantec Material Adverse Effect.
4.12 Fairness Opinion. Symantec has received the opinion of Donaldson
Lufkin & Jenrette Securities Corporation dated the date of this Agreement to the
effect that, as of the date hereof, the consideration paid by Symantec in the
Merger is fair to Symantec from a financial point of view.
4.13 [Intentionally Omitted].
4.14 [Intentionally Omitted].
4.15 Officer's Certificate as to Tax Matters. Symantec knows of no reason
why it will be unable to deliver to Heller Ehrman White & McAuliffe LLP and Shaw
Pittman LLP at the Closing an Officer's Certificate in form sufficient to enable
each such counsel to render the opinions required by Section 6.6.
4.16 Taxes. Symantec and each of its Subsidiaries have filed all Tax
Returns required to be filed by them, and have paid (or Symantec has paid on
behalf of its Subsidiaries), all Taxes required to be paid as shown on such Tax
Returns. The most recent financial statements contained in the Symantec SEC
Reports reflect an adequate accrual (which accruals were established in
accordance with GAAP) for the payment of all Taxes payable by Symantec and its
Subsidiaries, as of the date of such financial statements. Except as reasonably
would not be expected to have a Symantec Material Adverse Effect, no
deficiencies for any Taxes have been proposed, asserted or assessed against
Symantec or any of its Subsidiaries. Neither Symantec nor any of its
Subsidiaries has filed for any extension of time to file any Tax Return. None of
Symantec and its Subsidiaries is aware of any reason why the Merger will fail to
qualify as a reorganization under the provisions of Section 368(a) of the Code.
4.17 Intellectual Property. Except where the failure of any of the
following representations to be true would not be reasonably expected to have a
Symantec Material Adverse Effect:
(a) Symantec and its Subsidiaries own or have the right to use all
intellectual property used to conduct their respective businesses (such
intellectual property and the rights thereto are collectively referred to
herein as the "Symantec IP Rights").
(b) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not constitute a
material breach of any instrument or agreement governing any Symantec IP
Rights, will not (i) cause the modification of any terms of any licenses or
agreements relating to any Symantec IP Rights including but not limited to
the modification of the effective rate of any royalties or other payments
provided for in any such license or agreement, (ii) cause the forfeiture or
termination of any Symantec IP Rights, (iii) give rise to a right of
forfeiture or termination of any Symantec IP Rights or (iv) materially
impair the right of Symantec to use, sell or license any Symantec IP Rights
or portion thereof.
(c) Neither the manufacture, marketing, license, sale or intended use
of any product or technology currently licensed or sold or under
development by Symantec or any of its Subsidiaries (i) violates in any
material respect any license or agreement between Symantec or any of its
Subsidiaries and any third party or (ii) infringes in any material respect
any patents or other intellectual property rights of any other party; and
there is no pending or, to the knowledge of Symantec, threatened claim or
litigation contesting the validity, ownership or right to use, sell,
license or dispose of any Symantec IP Rights, or asserting that any
Symantec IP Rights or the proposed use, sale, license or disposition
thereof, or the manufacture, use or sale of any Symantec products,
conflicts or will conflict with the rights of any other party.
(d) Neither Symantec nor any of its Subsidiaries is aware or has
reason to believe that any of its employees or consultants is obligated
under any contract, covenant or other agreement or commitment of any
nature, or subject to any judgment, decree or order of any court or
administrative agency, that would interfere with the use of such employee's
or consultant's best efforts to promote the interests of Symantec and its
Subsidiaries or that would conflict with the business of Symantec as
presently conducted or proposed to be conducted. Neither Symantec nor any
of its Subsidiaries has entered into any agreement to indemnify any other
person, including but not limited to any employee or consultant of Symantec
or
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any of its Subsidiaries, against any charge of infringement,
misappropriation or misuse of any intellectual property, other than
indemnification provisions contained in purchase orders, license
agreements, distribution agreements or other agreements arising in the
ordinary course of business. To the knowledge of Symantec, all current and
former employees and consultants of any of Symantec or any of its
Subsidiaries have signed valid and enforceable written assignments to
Symantec or its Subsidiaries of any and all rights or claims in any
intellectual property that any such employee or consultant has or may have
by reason of any contribution, participation or other role in the
development, conception, creation, reduction to practice or authorship of
any invention, innovation, development or work of authorship or any other
intellectual property that is used in the business of Symantec, and
Symantec and its Subsidiaries possess signed copies of all such written
assignments by such employees and consultants.
4.18 Year 2000 Compliance. All of Symantec's products currently being
sold, both individually and when operating in conjunction with all other systems
or products with which they are designed to interface, are Year 2000 Compliant.
ARTICLE V
COVENANTS
5.1 Conduct of Business During Interim Period. Except as contemplated or
required by this Agreement or as expressly consented to in writing by Symantec,
which consent shall not be unreasonably withheld, during the period from the
date of this Agreement to the earlier of the termination of this Agreement or
the Effective Time, each of AXENT and its Subsidiaries will (i) conduct its
operations according to its ordinary and usual course of business consistent
with past practice, (ii) use commercially reasonable efforts to preserve intact
its business organization, to keep available the services of its officers and
employees in each business function and to maintain satisfactory relationships
with suppliers, distributors, customers and others having business relationships
with it, and (iii) not take any action which would adversely affect its ability
to consummate the Merger or the other transactions contemplated hereby. Without
limiting the generality of the foregoing, and except as otherwise expressly
provided in this Agreement, prior to the earlier of the termination of this
Agreement or Effective Time neither AXENT nor any of its Subsidiaries will,
without the prior written consent of Symantec (which consent shall not be
unreasonably withheld), directly or indirectly, do any of the following:
(a) enter into, violate, extend, amend or otherwise modify or waive
any of the terms of (i) any material joint venture, license (other than end
user licenses), or agreement relating to the joint development or transfer
of technology or AXENT IP Rights or (ii) except in the ordinary course of
business and consistent with past practice, any other material agreements,
commitments or contracts (including end user licenses);
(b) split, combine or reclassify any shares of its capital stock;
(c) except as permitted in Section 5.4(e) of this Agreement authorize,
solicit, propose or announce an intention to authorize, recommend or
propose, or enter into any agreement in principle or an agreement with any
other person with respect to, any plan of liquidation or dissolution, any
acquisition of a material amount of assets or securities, any disposition
of a material amount of assets or securities, any material change in
capitalization, or any material partnership, association, joint venture,
joint development, technology transfer, or other material business
alliance;
(d) fail to renew any insurance policy naming it as a beneficiary or a
loss payee, or take any steps or fail to take any steps that would permit
any insurance policy naming it as a beneficiary or a loss payee to be
canceled, terminated or materially altered, except in the ordinary course
of business and consistent with past practice and following written notice
to Symantec;
(e) maintain its books and records in a manner other than in the
ordinary course of business and consistent with past practice;
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(f) enter into any hedging, option, derivative or other similar
transaction or any foreign exchange position or contract for the exchange
of currency other than in the ordinary course of business and consistent
with past practice;
(g) institute any change in its accounting methods, principles or
practices other than as required by GAAP, or the rules and regulations
promulgated by the SEC, or revalue any assets, including without
limitation, writing down the value of inventory or writing off notes or
accounts receivables;
(h) in respect of any Taxes, make or change any material election,
change any accounting method, enter into any closing agreement, settle any
material claim or assessment, or consent to any extension or waiver of the
limitation period applicable to any material claim or assessment except as
required by applicable law;
(i) suspend, terminate or otherwise discontinue any planned or ongoing
material research and development activities, programs or other such
activities;
(j) issue any capital stock or other options, warrants or other rights
to purchase or acquire capital stock, other than: (i) the grant or exercise
of purchase rights pursuant to the AXENT Purchase Plan as contemplated by
Section 2.2(b); (ii) the exercise of AXENT Options outstanding as of the
date of this Agreement; or (iii) AXENT Options granted in the ordinary
course of business consistent with past practice under the AXENT Stock
Plans to newly-hired employees of AXENT; provided that AXENT shall not
grant in any calendar month between the date of this Agreement and the
Effective Time, AXENT Options to purchase, in the aggregate, a number of
shares of AXENT Common Stock in excess of 110% of the monthly average of
the number of shares of AXENT Common Stock subject to AXENT Options granted
in the six calendar months prior to the date of this Agreement; or
(k) take or agree to take, any of the actions described in Section
3.10, or any action which would make any of its representations or
warranties contained in this Agreement untrue or incorrect or prevent it
from performing or cause it not to perform its covenants hereunder.
5.2 No Solicitation.
(a) From and after the date of this Agreement until the Effective Time or
termination of this Agreement pursuant to Article VIII, AXENT and its
Subsidiaries will not, nor will they authorize or permit any of their respective
officers, directors, affiliates or employees or any investment banker, attorney
or other advisor or representative retained by any of them to, directly or
indirectly, (i) solicit, initiate, encourage or induce the making, submission or
announcement of any Acquisition Proposal (as hereinafter defined), (ii)
participate in any discussions or negotiations regarding, or furnish to any
person any non-public information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes or may
reasonably be expected to lead to, any Acquisition Proposal, (iii) engage in
discussions with any person with respect to any Acquisition Proposal, except as
to the existence of these provisions, (iv) approve, endorse or recommend any
Acquisition Proposal or (v) enter into any letter of intent or similar document
or any contract agreement or commitment contemplating or otherwise relating to
any Acquisition Transaction. Notwithstanding anything to the contrary contained
in this Section 5.2 or in any other provision of this Agreement, AXENT and its
board of directors: (i) may furnish information to, or participate in
discussions with, any third party that has made an unsolicited Acquisition
Proposal (a "Potential Acquiror") that the board reasonably concludes may lead
to a Superior Offer (as defined in Section 5.4(e) hereof); and (ii) may
participate in discussions or negotiations with any Potential Acquiror or
approve an unsolicited Acquisition Proposal if the board is advised by its
financial advisor that the Potential Acquiror submitting such Acquisition
Proposal has the financial wherewithal to be reasonably capable of consummating
such an Acquisition Proposal, and the board determines in good faith, (A) after
receiving advice from its financial advisor, that such Acquisition Proposal is a
Superior Offer (as defined in Section 5.4(e) hereof), and (B) after consultation
with its legal counsel, that the failure to participate in such discussions or
negotiations or to furnish such information or approve an Acquisition Proposal
would be inconsistent with the board's fiduciary duties under applicable law.
AXENT agrees that any non-public information furnished to a Potential Acquiror
will be pursuant to a confidentiality, standstill and nonsolicitation agreement
containing provisions at least as favorable to AXENT
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as the confidentiality, standstill and nonsolicitation provisions of the
Confidentiality Agreement (as defined in Section 5.3). In the event that AXENT
shall determine to provide any information as described above, or shall receive
any Acquisition Proposal (or any material amendment to an Acquisition Proposal
previously received), it shall promptly, and in any event within 24 hours,
inform Symantec in writing as to that fact and shall furnish to Symantec the
identity of the recipient of such information to be provided and/or the
Potential Acquiror and the terms of such Acquisition Proposal (or material
amendment).
For purposes of this Agreement, "Acquisition Proposal" shall mean any offer
or proposal (other than an offer or proposal by Symantec) relating to any
Acquisition Transaction. For purposes of this Agreement, "Acquisition
Transaction" shall mean any transaction or series of related transactions
involving: (A) any purchase from AXENT or acquisition by any person or "group"
(as defined under Section 13(d) of the Exchange Act and the rules and
regulations thereunder) of more than a 30% interest in the total outstanding
voting securities of AXENT or any of its subsidiaries or any tender offer or
exchange offer that if consummated would result in any person or "group" (as
defined under Section 13(d) of the Exchange Act and the rules and regulations
thereunder) beneficially owning 30% or more of the total outstanding voting
securities of AXENT or any of its subsidiaries or any merger, consolidation,
business combination or similar transaction involving AXENT; (B) any sale, lease
(other than in the ordinary course of business), exchange, transfer, license
(other than in the ordinary course of business), acquisition or disposition of
more than 30% of the assets of AXENT; or (C) any liquidation or dissolution of
AXENT.
(b) In addition to the obligations of AXENT set forth in Section 5.2(a),
AXENT as promptly as practicable shall advise Symantec orally and in writing of
any Acquisition Proposal or any request for non-public information or inquiry
which AXENT reasonably believes would lead to an Acquisition Proposal or to any
Acquisition Transaction, the material terms and conditions of such Acquisition
Proposal, request or inquiry, and the identity of the person or group making any
such Acquisition Proposal, request or inquiry. AXENT will keep Symantec informed
as promptly as practicable in all material respects of the status and details
(including material amendments or proposed material amendments) of any such
Acquisition Proposal, request or inquiry.
5.3 Access to Information. From the date of this Agreement until the
Effective Time, AXENT and Symantec will each afford to the other and their
authorized representatives (including counsel, environmental and other
consultants, accountants, auditors and agents) reasonable access during normal
business hours and upon reasonable notice to all of its facilities, personnel
and operations and to all of its and its Subsidiaries books and records, will
permit the other and its authorized representatives to conduct inspections as
they may reasonably request and will instruct its officers and those of its
Subsidiaries to furnish such persons with such financial and operating data and
other information with respect to its business and properties as they may from
time to time reasonably request, subject to the restrictions set forth in the
Confidentiality Agreement, dated as of June 19, 2000 between Symantec and AXENT
(the "Confidentiality Agreement"). Symantec and Merger Sub agree that each of
them will treat any such information in accordance with the Confidentiality
Agreement, which shall remain in full force and effect in accordance with its
terms.
5.4 Special Meetings; Registration Statement; Board Recommendations.
(a) AXENT Special Meeting. Promptly after the date hereof, subject to
Section 5.4(e), AXENT will take all action necessary in accordance with Delaware
Law and its certificate of incorporation and bylaws to convene a meeting of
AXENT's stockholders to consider adoption of this Agreement and approval of the
Merger (the "AXENT Special Meeting") to be held as promptly as practicable, and
in any event (to the extent permissible under applicable law) within 45 days
after the declaration of effectiveness of the Registration Statement. Subject to
Section 5.4(e), AXENT will use its commercially reasonable efforts to solicit
from its stockholders proxies in favor of the adoption of this Agreement and the
approval of the Merger and will take all other action necessary or advisable to
secure the vote or consent of its stockholders required by the rules of Nasdaq
or Delaware Law to obtain such approvals. Notwithstanding anything to the
contrary contained in this Agreement, AXENT may adjourn or postpone the AXENT
Special Meeting to the extent necessary to ensure that any necessary supplement
or amendment to the Joint Proxy Statement/Prospectus is provided to AXENT's
stockholders in advance of a vote on the Merger and this Agreement or, if as of
the
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time for which the AXENT Special Meeting is originally scheduled (as set forth
in the Joint Proxy Statement/Prospectus) there are insufficient shares of AXENT
Common Stock represented (either in person or by proxy) to constitute a quorum
necessary to conduct the business of the AXENT Special Meeting. AXENT shall
ensure that the AXENT Special Meeting is called, noticed, convened, held and
conducted, and that all proxies solicited by AXENT in connection with the AXENT
Special Meeting are solicited, in compliance with the Delaware Law, AXENT's
certificate of incorporation and bylaws, the rules of Nasdaq and all other
applicable legal requirements.
(b) Symantec Special Meeting. Promptly after the date hereof, Symantec will
take all action necessary in accordance with Delaware Law and its certificate of
incorporation and bylaws to convene a meeting of Symantec's stockholders to
consider the issuance of Symantec Common Stock in the Merger (the "Symantec
Special Meeting") to be held as promptly as practicable, and in any event (to
the extent permissible under applicable law) within 45 days after the
declaration of effectiveness of the Registration Statement. Symantec will use
its commercially reasonable efforts to solicit from its stockholders proxies in
favor of the issuance of Symantec Common Stock in the Merger and will take all
other action necessary or advisable to secure the vote or consent of its
stockholders required by the rules of Nasdaq or Delaware Law to obtain such
approval. Notwithstanding anything to the contrary contained in this Agreement,
Symantec may adjourn or postpone the Symantec Special Meeting to the extent
necessary to ensure that any necessary supplement or amendment to the Joint
Proxy Statement/Prospectus is provided to Symantec's stockholders in advance of
a vote on the issuance of Symantec Common Stock in the Merger and this Agreement
or, if as of the time for which the Symantec Special Meeting is originally
scheduled (as set forth in the Joint Proxy Statement/Prospectus) there are
insufficient shares of Symantec Common Stock represented (either in person or by
proxy) to constitute a quorum necessary to conduct the business of the Symantec
Special Meeting. Symantec shall ensure that the Symantec Special Meeting is
called, noticed, convened, held and conducted, and that all proxies solicited by
Symantec in connection with the Symantec Special Meeting are solicited, in
compliance with the Delaware Law, Symantec's certificate of incorporation and
bylaws, the rules of Nasdaq and all other applicable legal requirements.
(c) Subject to Section 5.4(e): (i) the board of directors of AXENT shall
unanimously recommend that AXENT's stockholders vote in favor of and adopt and
approve this Agreement and approve the Merger at the AXENT Special Meeting; (ii)
the Joint Proxy Statement/Prospectus shall include a statement to the effect
that the board of directors of AXENT has unanimously recommended that AXENT's
stockholders vote in favor of and adopt and approve this Agreement and the
Merger at the AXENT Special Meeting; and (iii) neither the board of directors of
AXENT nor any committee thereof shall withdraw, amend or modify, or propose or
resolve to withdraw, amend or modify in a manner adverse to Symantec, the
unanimous recommendation of the board of directors of AXENT that AXENT's
stockholders vote in favor of and adopt and approve this Agreement and the
Merger. For purposes of this Agreement, said recommendation of the board of
directors shall be deemed to have been modified in a manner adverse to Symantec
if said recommendation shall no longer be unanimous, provided that, for all
purposes of this Agreement, an action by any board of directors or committee
thereof shall be unanimous if each member of such board of directors or
committee has approved such action other than (i) any such member who has
appropriately abstained from voting on such matter because of an actual or
potential conflict of interest and (ii) any such member who is unable to vote in
connection with such action as a result of death or disability.
(d) (i) the board of directors of Symantec shall unanimously recommend that
Symantec's stockholders vote in favor of the issuance of Symantec Common Stock
in the Merger at the Symantec Special Meeting; (ii) the Joint Proxy
Statement/Prospectus shall include a statement to the effect that the board of
directors of Symantec has unanimously recommended that Symantec's stockholders
vote in favor of the issuance of Symantec Common Stock in the Merger at the
Symantec Special Meeting; and (iii) neither the board of directors of Symantec
nor any committee thereof shall withdraw, amend or modify, or propose or resolve
to withdraw, amend or modify in a manner adverse to AXENT, the unanimous
recommendation of the board of directors of Symantec that Symantec's
stockholders vote in favor of the issuance of Symantec Common Stock in the
Merger. For purposes of this Agreement, said recommendation of the board of
directors shall be deemed to have been modified in a manner adverse to AXENT if
said recommendation shall no longer be
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unanimous, provided that, for all purposes of this Agreement, an action by any
board of directors or committee thereof shall be unanimous if each member of
such board of directors or committee has approved such action other than (i) any
such member who has appropriately abstained from voting on such matter because
of an actual or potential conflict of interest and (ii) any such member who is
unable to vote in connection with such action as a result of death or
disability.
(e) Nothing in this Agreement shall prevent the board of directors of AXENT
from withholding, withdrawing, amending or modifying its unanimous
recommendation in favor of the Merger if (i) a Superior Offer (as defined below)
is made to AXENT and is not withdrawn, (ii) AXENT shall have provided written
notice to Symantec (a "Notice of Superior Offer") advising Symantec that AXENT
has received a Superior Offer, specifying the material terms and conditions of
such Superior Offer and identifying the person or entity making such Superior
Offer, (iii) Symantec shall not have, within five (5) business days of
Symantec's receipt of the Notice of Superior Proposal, made an offer that AXENT
Board by a majority vote determines in its good faith judgment (based on the
written advice of its financial advisor) to be at least as favorable to AXENT's
stockholders as such Superior Proposal (it being agreed that AXENT Board shall
convene a meeting to consider any such offer by Symantec promptly following the
receipt thereof), (iv) the board of directors of AXENT concludes in good faith,
after consultation with its outside counsel, that, in light of such Superior
Offer, the failure to withhold, withdraw, amend or modify such recommendation
would be inconsistent with the fiduciary obligations of the board of directors
of AXENT to AXENT's stockholders under applicable law and (v) AXENT shall not
have violated any of the restrictions set forth in Section 5.2 or this Section
5.4(e). AXENT shall provide Symantec with at least three business days prior
notice (or such lesser prior notice as provided to the members of AXENT's board
of directors but in no event less than twenty-four hours) of any meeting of
AXENT's board of directors at which AXENT's board of directors is reasonably
expected to consider any Acquisition Transaction. For purposes of this Agreement
"Superior Offer" shall mean an unsolicited, bona fide written offer made by a
third party to consummate any of the following transactions: (i) a merger or
consolidation involving AXENT pursuant to which the stockholders of AXENT
immediately preceding such transaction hold less than a majority of the equity
interest in the surviving or resulting entity of such transaction or (ii) the
acquisition by any person or group (including by way of a tender offer or an
exchange offer or a two step transaction involving a tender offer followed with
reasonable promptness by a cash-out merger involving AXENT), directly or
indirectly, of ownership of 90% of the then outstanding shares of capital stock
of AXENT, on terms that the board of directors of AXENT determines, in its
reasonable judgment (based on the written advice of its financial advisor) to be
more favorable to AXENT stockholders than the terms of the Merger; provided,
however, that any such offer shall not be deemed to be a "Superior Offer" if any
financing required to consummate the transaction contemplated by such offer is
not committed and is not likely in the reasonable judgment of AXENT's board of
directors (based on the advice of its financial advisor) to be obtained by such
third party on a timely basis.
(f) Nothing contained in this Agreement shall prohibit AXENT or its board
of directors from taking and disclosing to its stockholders a position
contemplated by Rules 14d-9 and 14e-2 promulgated under the Exchange Act.
(g) As promptly as practicable after the execution of this Agreement, AXENT
and Symantec shall mutually prepare, and AXENT shall file with the SEC, a
preliminary form of the Joint Proxy Statement/ Prospectus. As promptly as
practicable following receipt of SEC comments on such preliminary Joint Proxy
Statement/Prospectus, Symantec and AXENT shall mutually prepare a response to
such comments. Upon resolution of all comments, Symantec shall file the
Registration Statement with the SEC. Symantec and AXENT shall use all
commercially reasonable efforts to have the preliminary Joint Proxy Statement/
Prospectus cleared by the SEC and the Registration Statement declared effective
by the SEC as promptly as practicable. Symantec shall also take any action
required to be taken under applicable state blue sky or securities laws in
connection with Symantec Common Stock to be issued in exchange for the shares of
AXENT Common Stock. Symantec and AXENT shall promptly furnish to each other all
information, and take such other actions (including without limitation using all
commercially reasonable efforts to provide any required consents of their
respective independent auditors), as may reasonably be requested in connection
with any action by any of them in connection with the preceding sentences of
this Section 5.4(g). Whenever any
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party learns of the occurrence of any event which is required to be set forth in
an amendment or supplement to the Joint Proxy Statement/Prospectus, the
Registration Statement or any other filing made pursuant to this Section 5.4(g),
Symantec or AXENT, as the case may be, shall promptly inform the other of such
occurrence and cooperate in filing with the SEC or its staff and/or mailing to
stockholders of AXENT such amendment or supplement.
(h) Subject to Section 5.4(e), the Joint Proxy Statement/Prospectus shall
contain the unanimous recommendation of the board of directors of AXENT in favor
of the approval and adoption of this Agreement.
(i) The Joint Proxy Statement/Prospectus shall contain the unanimous
recommendation of the board of directors of Symantec in favor of the issuance of
Symantec Common Stock in the Merger.
5.5 Commercially Reasonable Efforts.
(a) Subject to the terms and conditions herein provided, Symantec, Merger
Sub and AXENT shall use commercially reasonable efforts to take, or cause to be
taken, all actions and do, or cause to be done, all things necessary, proper or
appropriate under this Agreement, applicable laws and regulations to consummate
and make effective the transactions contemplated by this Agreement, including,
without limitation, (i) promptly filing Notification and Report Forms under the
HSR Act with the Federal Trade Commission (the "FTC") and the Antitrust Division
of the Department of Justice (the "Antitrust Division") and responding as
promptly as practicable to any inquiries received from the FTC or the Antitrust
Division for additional information or documentation, (ii) using commercially
reasonable efforts to obtain all necessary governmental and private party
consents, approvals or waivers, and (iii) using commercially reasonable efforts
to lift any legal bar to the Merger. Symantec shall cause Merger Sub to perform
all of its obligations under this Agreement.
(b) Notwithstanding anything to the contrary in this Agreement, neither
Symantec, nor the Surviving Corporation, nor any of their Subsidiaries shall be
required to (i) divest, hold separate or license any business(es), product
line(s) or asset(s), (ii) take any action or accept any limitation that would
reasonably be expected to have a Symantec Material Adverse Effect or an AXENT
Material Adverse Effect, or (iii) agree to any of the foregoing.
5.6 Public Announcements. Before issuing any press release or otherwise
making any public statement with respect to the Merger or any of the other
transactions contemplated hereby, Symantec, Merger Sub and AXENT agree to
consult with each other as to its form and substance, and agree not to issue any
such press release or general communication to employees or make any public
statement prior to obtaining the consent of the other (which shall not be
unreasonably withheld or delayed), except as may be required by applicable law
or by the rules and regulations of or listing agreement with Nasdaq or as may
otherwise be required by Nasdaq or the SEC.
5.7 Notification of Certain Matters. Each of AXENT and Symantec shall
promptly notify the other party of the occurrence or non-occurrence of any event
the respective occurrence or non-occurrence of which would be reasonably likely
to cause any condition to the obligations of the notifying party to effect the
Merger not to be fulfilled. Each of AXENT and Symantec shall also give prompt
notice to the other of any communication from any Person alleging that the
consent of such Person is or may be required in connection with the Merger or
other transactions contemplated hereby.
5.8 Indemnification.
(a) The certificate of incorporation and bylaws of the Surviving
Corporation shall contain, and Symantec shall cause the Surviving Corporation to
fulfill and honor, the provisions with respect to indemnification, the
advancement of fees and expenses, and exculpation that are at least as favorable
with respect to AXENT, its Subsidiaries and the Indemnified Parties as those set
forth in the certificate of incorporation and bylaws of AXENT as of the date of
this Agreement, which provisions shall not be amended, repealed or otherwise
modified for a period of six years from the Effective Time in any manner that
would adversely affect the rights thereunder of any of the Indemnified Parties.
In addition, Symantec shall cause the Surviving Corporation to fulfill and honor
the obligations of AXENT pursuant to indemnification agreements and agreements
for
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advancement of fees and expenses between AXENT and any of the Indemnified
Parties which are listed in Section 3.14 of the AXENT Disclosure Statement and
provisions for any indemnification, advancement of fees and expenses and
exculpation under the certificate of incorporation or bylaws of AXENT as in
effect on the date hereof. "Indemnified Parties" shall include each person who
is or was a director or officer of AXENT or any Subsidiary of AXENT at any time
before the Effective Time, and each person who serves or has in the past served
at the request of AXENT or any subsidiary of AXENT as a director, officer,
trustee, partner, fiduciary, employee or agent of another corporation,
partnership, joint venture, trust, pension or other employee benefit plan or
enterprise at any time before the Effective Time.
(b) For a period of six years after the Effective Time, Symantec shall
indemnify and hold harmless the Indemnified Parties against and from any costs
or expenses (including attorneys' fees), judgments, fines, losses, claims,
damages, liabilities and amounts paid in settlement in connection with any
claim, action, suit, proceeding or investigation, whether civil, criminal,
administrative or investigative (and whether arising before or after the
Effective Time), to the extent arising out of or pertaining to any action or
omission in his or her capacity as a director or officer of AXENT arising out of
or pertaining to the transactions contemplated by this Agreement. In the event
of the commencement or assertion of any such claim, action, suit, proceeding or
investigation (whether arising before or after the Effective Time), (i) any
counsel retained by the Indemnified Parties for any period after the Effective
Time must be reasonably satisfactory to Symantec, (ii) after the Effective Time,
Symantec shall pay or cause to be paid the reasonable fees and expenses of such
counsel, promptly after statements therefor are received and (iii) Symantec
shall, and shall cause the Surviving Corporation to, cooperate in the defense of
any such matter; provided, however, that neither Symantec nor the Surviving
Corporation shall be liable for any settlement effected without its written
consent (which consent shall not be unreasonably withheld or delayed); and
provided, further, that, in the event that any claim or claims for
indemnification are asserted or made within such six-year period, all rights to
indemnification in respect of any such claim or claims (and the matters giving
rise thereto) shall continue until the disposition of any and all such claims
(and the matters giving rise thereto). The Indemnified Parties as a group may
retain only one law firm (in addition to local counsel) to represent them with
respect to any single action unless any Indemnified Party determines in good
faith (after consultation with legal counsel) that there is, under applicable
standards of professional conduct, a conflict between the positions of any two
or more Indemnified Parties. In the event Symantec or the Surviving Corporation
or any of their respective successors or assigns (i) consolidates with or merges
into any other Person and shall not be the continuing or surviving corporation
or entity of such consolidation or merger, or (ii) transfers or conveys all or
substantially all of its properties and assets to any Person, then, and in each
such case, to the extent necessary to effectuate the purposes of this Section
5.8, proper provision shall be made so that the successors and assigns of
Symantec and the Surviving Corporation assume the obligations set forth in this
Section 5.8, and none of the actions described in clause (i) or (ii) shall be
taken until such provision is made.
(c) Without limiting any of the obligations of Symantec or the Surviving
Corporation set forth elsewhere in this Section 5.8, for a period of six years
after the Effective Time, Symantec shall cause the Surviving Corporation to
maintain in effect, to the extent available, directors' and officers' liability
insurance covering those persons who are currently covered by AXENT's directors'
and officers' liability insurance policy on terms no less favorable to such
persons as those applicable under the policy of directors' and officers'
liability insurance currently maintained by AXENT; provided, however, that in no
event shall Symantec or the Surviving Corporation be required to expend for
coverage for any one year in excess of 200% of the annual premium currently paid
by AXENT for such coverage, and that if the annual premiums of such insurance
coverage exceed such amount, the Surviving Corporation shall be obligated
instead to obtain a policy with the greatest coverage available for a cost not
exceeding such amount.
(d) Symantec shall cause the Surviving Corporation to perform its
obligations under this Section 5.8 and shall, in addition, guarantee, as
co-obligor with the Surviving Corporation, the performance of such obligations
by the Surviving Corporation.
(e) Each Indemnified Party shall comply with the reasonable requests of the
Surviving Corporation or Symantec in defending or settling any action hereunder;
provided, however, that no proposed settlement of any such action need be
considered by any Indemnified Party if (A) such settlement involves no finding
or
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admission of any liability by any Indemnified Party and (B) the sole relief
provided in connection with such settlement is monetary damages that are paid in
full by the Surviving Corporation or Symantec.
(f) This Section 5.8 shall survive the consummation of the Merger, is
intended to benefit AXENT, the Surviving Corporation and each Indemnified Party,
shall be binding on all successors and assigns of the Surviving Corporation and
Symantec, and shall be enforceable by the Indemnified Parties.
5.9 [Intentionally Omitted].
5.10 AXENT Affiliate Agreements. Concurrently with the execution and
delivery hereof, AXENT shall deliver to Symantec a list (reasonably satisfactory
to counsel for Symantec), setting forth the names of all persons who are
expected to be, at the Effective Time, in AXENT's reasonable judgment,
Affiliates of AXENT. AXENT shall furnish such information and documents as
Symantec may reasonably request for the purpose of reviewing such list. AXENT
shall deliver a written agreement in substantially the form of Exhibit C hereto
(an "AXENT Affiliate Agreement") executed by each person identified as an
Affiliate in the list furnished pursuant to this Section 5.10(a) within ten (10)
days after the execution of this Agreement.
5.11 Nasdaq Listing. Prior to the Effective Time, Symantec agrees to cause
the shares of Symantec Common Stock issuable, and those required to be reserved
for issuance, in connection with the Merger to be authorized for listing on
Nasdaq, subject to official notice of issuance.
5.12 Resignation of Directors and Officers. Prior to the Effective Time,
AXENT shall deliver to Symantec at no cost the resignations of such directors
and officers of AXENT and its Subsidiaries as Symantec shall specify at least
ten business days prior to the Closing, effective at the Effective Time.
5.13 Consents of Symantec's and AXENT's Accountants. Each of Symantec and
AXENT shall use commercially reasonable efforts to cause its independent
accountants to deliver to Symantec a consent, dated the date on which the
Registration Statement shall become effective, in form reasonably satisfactory
to Symantec and customary in scope and substance for consents delivered by
independent public accountants in connection with registration statements on
Form S-4 under the Securities Act.
5.14 Form S-8. No later than thirty (30) business days after the Effective
Time, Symantec shall file with the SEC a Registration Statement, on Form S-8 or
other appropriate form under the Securities Act, to register Symantec Common
Stock issuable upon exercise of the Symantec Exchange Options and shares of
Symantec Common Stock issuable pursuant to the AXENT Purchase Plan following the
Effective Time. Symantec shall use commercially reasonable efforts to cause such
Registration Statement to remain effective until the exercise or expiration of
such options.
5.15 Notification of Certain Matters. AXENT shall give prompt notice to
Symantec and Merger Sub, and Symantec and Merger Sub shall give prompt notice to
AXENT, of (i) the occurrence or nonoccurrence of any event the occurrence or
nonoccurrence of which would be likely to cause any representation or warranty
contained in this Agreement to be untrue or inaccurate in any material respect
at or prior to the Effective Time, (ii) any material failure of the AXENT,
Symantec or Merger Sub, as the case may be, to comply with or satisfy any
covenant, condition or agreement to be complied with or satisfied by it
hereunder, (iii) any notice or other communication from any third party alleging
that the consent of such third party is or may be required in connection with
the transactions contemplated by this Agreement, or (iv) any facts or
circumstances arise that could reasonably be expected to result in an AXENT
Material Adverse Effect or a Symantec Material Adverse Effect, as the case may
be.
5.16 SEC Filings.
(a) AXENT will deliver promptly to Symantec true and complete copies of
each report, registration statement or statement mailed by it to its security
holders generally or filed by it with the SEC, in each case subsequent to the
date hereof and prior to the Effective Time. As of their respective dates, such
reports, including the consolidated financial statements included therein, and
statements (excluding any information therein provided by Symantec or Merger
Sub, as to which AXENT makes no representation) will not contain any untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the
circumstances under which they are made, not
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misleading and will comply in all material respects with all applicable
requirements of law. Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in such reports, (x) shall
comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, (y) shall be prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of unaudited interim financial statements, as
may be permitted by the SEC on Form 10-Q under the Exchange Act) and (z) shall
fairly present the consolidated financial position of AXENT and its Subsidiaries
as at the respective dates thereof and the consolidated results of its
operations and cash flows for the periods indicated, except that the unaudited
interim financial statements were or are subject to normal and recurring
year-end adjustments which were not, or are not expected to be, material in
amount.
(b) Symantec will deliver promptly to AXENT true and complete copies of
each report filed by it with the SEC subsequent to the date hereof and prior to
the Effective Time. As of their respective dates, such reports, including the
consolidated financial statements included therein, and statements (excluding
any information therein provided by AXENT, as to which Symantec makes no
representation) will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading and will comply in all material respects with all applicable
requirements of law. Each of the consolidated financial statements (including,
in each case, any related notes thereto) contained in such reports (x) shall
comply as to form in all material respects with applicable accounting
requirements and with the published rules and regulations of the SEC with
respect thereto, (y) shall be prepared in accordance with GAAP applied on a
consistent basis throughout the periods involved (except as may be indicated in
the notes thereto or, in the case of unaudited interim financial statements, as
may be permitted by the SEC on Form 10-Q under the Exchange Act) and (z) shall
fairly present the consolidated financial position of Symantec and its
Subsidiaries as at the respective dates thereof and the consolidated results of
its operations and cash flows for the periods indicated, except that the
unaudited interim financial statements were or are subject to normal and
recurring year-end adjustments which were not, or are not expected to be,
material in amount.
5.17 Employee Benefit Matters. Symantec agrees to cause employees of AXENT
who continue as employees of Symantec following the Effective Time to be
eligible to participate in the Symantec Purchase Plan and Symantec's 1996 Equity
Incentive Plan and health and welfare benefit plans, programs and practices of
Symantec generally applicable to other similarly-situated employees of Symantec
(the "Symantec Plans"). Symantec shall recognize, from and after the Effective
Time, each AXENT employee's service with AXENT for purposes of determining
eligibility to participate in and vesting, and, if applicable, eligibility to
commence participation in retirement plans (excluding benefit accruals), under
the Symantec Plans. Compensation provided to employees of AXENT who continue as
employees of Symantec following the Effective Time shall be determined by
Symantec in its sole discretion. After the Effective Time, AXENT will honor its
obligations under the AXENT Executive Severance General Guidelines.
5.18 Certain Matters. On or prior to the Closing Date, Symantec shall
obtain the approval of its board of directors in accordance with rule 16b-3
under the Exchange Act of the exchange of securities as contemplated by this
Agreement consistent with the SEC no-action letter issued to Skadden Arps Slater
Meagher & Flom dated January 12, 1999.
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ARTICLE VI
CONDITIONS TO THE OBLIGATIONS OF EACH PARTY
The respective obligations of each party to this Agreement to effect the
Merger shall be subject to the fulfillment on or before the Effective Time of
each of the following conditions, any one or more of which may be waived in
writing by all the parties hereto:
6.1 Registration Statement. The Registration Statement shall have become
effective in accordance with the provisions of the Securities Act. No stop order
suspending the effectiveness of the Registration Statement shall have been
issued by the SEC and remain in effect and no proceedings for such purpose shall
be pending before or threatened by the SEC.
6.2 AXENT Stockholder Approval. The approval of a majority of the
outstanding shares of AXENT Common Stock for adoption of the Merger Agreement
and approval of the Merger shall have been obtained at the AXENT Special Meeting
or any adjournment or postponement thereof.
6.3 Symantec Stockholder Approval. The approval of a majority of the
shares of Symantec Common Stock represented at the Symantec Special Meeting in
favor of the issuance of Symantec Common Stock in the Merger shall have been
obtained at the Symantec Special Meeting or any adjournment or postponement
thereof.
6.4 Listing of Additional Shares. The Symantec Common Stock issuable in
connection with the Merger shall have been authorized for listing on Nasdaq,
subject to official notice of issuance on Nasdaq.
6.5 Governmental Clearances. The waiting period applicable to consummation
of the Merger under the HSR Act shall have expired or been terminated. Other
than the filing of the Certificate of Merger which shall be accomplished as
provided in Section 1.2, all authorizations, consents, orders or approvals of,
or declarations or filings with, or expirations of waiting periods imposed by,
any Government Entity the failure of which to obtain or comply with would be
reasonably likely to have an AXENT Material Adverse Effect or a Symantec
Material Adverse Effect shall have been obtained or filed.
6.6 Tax Matters. Each of Symantec and Merger Sub shall have received an
opinion of Heller Ehrman White & McAuliffe LLP, counsel to Symantec and Merger
Sub, and AXENT shall have received an opinion of Shaw Pittman LLP, counsel to
AXENT, each such opinion dated as of the Effective Time, substantially to the
effect that on the basis of the facts, representations and assumptions set forth
in such opinions, (i) the Merger will be treated as a reorganization within the
meaning of Section 368(a) of the Code; (ii) each of Symantec, Merger Sub and
AXENT will be a party to such reorganization within the meaning of Section
368(b) of the Code; and (iii) except with respect to cash received in lieu of
fractional share interest in Symantec Common Stock, no gain or loss will be
recognized, for United States federal income tax purposes, by a stockholder of
AXENT as a result of the Merger with respect to the shares of AXENT Common Stock
converted into Symantec Common Stock. The opinions referred to in the preceding
sentence will be based in part on representations to be made by the parties, and
Symantec, Merger Sub and AXENT agree to deliver officer's certificates to
counsel, in form and substance satisfactory to counsel, on which counsel may
rely in rendering such opinions. If counsel to either Symantec or AXENT does not
render such opinion, this condition shall nonetheless be deemed to be satisfied
with respect to such party if counsel to the other party renders such opinion in
the required form to such party.
6.7 Statute or Decree. No writ, order, temporary restraining order,
preliminary injunction or injunction shall have been enacted, entered,
promulgated or enforced by any court or other tribunal or governmental body or
authority, which remains in effect, and prohibits the consummation of the Merger
or otherwise makes it illegal, nor shall any governmental agency have instituted
any action, suit or proceeding which remains pending and which seeks, and which
is reasonably likely, to enjoin, restrain or prohibit the consummation of the
Merger in accordance with the terms of this Agreement.
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ARTICLE VII
CONDITIONS TO THE OBLIGATIONS OF AXENT AND SYMANTEC
7.1 Additional Conditions to the Obligations of AXENT. The obligations of
AXENT to effect the Merger shall be subject to the fulfillment of each of the
following additional conditions, any one or more of which may be waived in
writing by AXENT:
(a) The representations and warranties of Symantec and Merger Sub
contained in this Agreement (without regard to any materiality exceptions
or provisions therein) shall be true and correct, in all material respects,
as of the Effective Time, with the same force and effect as if made at the
Effective Time, except (i) for changes specifically permitted by the terms
of this Agreement, (ii) that the accuracy of the representations and
warranties that by their terms speak as of the date of this Agreement or
some other date will be determined as of such date and (iii) where the
failure of such representations and warranties to be so true and correct
does not have a Symantec Material Adverse Effect.
(b) Symantec and Merger Sub shall have performed and complied in all
material respects with all agreements and obligations required by this
Agreement to be performed or complied with by them on or prior to the
Closing Date.
(c) Symantec and Merger Sub shall have furnished a certificate or
certificates of Symantec and Merger Sub executed on behalf of one or more
of their respective officers to evidence compliance with the conditions set
forth in Sections 7.1(a) and (b) of this Agreement.
7.2 Additional Conditions to the Obligations of Symantec and Merger
Sub. The obligations of Symantec and Merger Sub to effect the Merger shall be
subject to the fulfillment of each of the following additional conditions, any
one or more of which may be waived in writing by Symantec:
(a) The representations and warranties of AXENT contained in this
Agreement (without regard to any materiality exceptions or provisions
therein) shall be true and correct, in all material respects, as of the
Effective Time, with the same force and effect as if made at the Effective
Time, except (i) for changes specifically permitted by the terms of this
Agreement, (ii) that the accuracy of the representations and warranties
that by their terms speak as of the date of this Agreement or some other
date will be determined as of such date and (iii) where the failure of such
representations and warranties to be so true and correct does not have an
AXENT Material Adverse Effect.
(b) AXENT shall have performed and complied in all material respects
with all agreements and obligations required by this Agreement to be
performed or complied with by it on or prior to the Closing Date.
(c) AXENT shall have furnished a certificate of AXENT executed by one
of its officers to evidence compliance with the conditions set forth in
Sections 7.2(a) and (b) of this Agreement.
(d) Any consents, approvals, notifications, disclosures, and filings
and registrations listed in Schedule 3.3 of the AXENT Disclosure Statement
shall have been obtained or made, unless the failure to have obtained or
made any such consent, approval, notification, disclosure, filing or
registration would not have an AXENT Material Adverse Effect or a Symantec
Material Adverse Effect.
ARTICLE VIII
TERMINATION
8.1 Termination. This Agreement may be terminated at any time prior to the
Effective Time, whether before or after the requisite approval of the
stockholders of AXENT:
(a) by mutual written consent duly authorized by the boards of
directors of Symantec and AXENT;
(b) by either AXENT or Symantec if the Merger shall not have been
consummated by January 31, 2001 (the "End Date") for any reason; provided,
however, that the right to terminate this Agreement
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under this Section 8.1(b) shall not be available to any party whose action
or failure to act has been a principal cause of or resulted in the failure
of the Merger to occur on or before such date and such action or failure to
act constitutes a material breach of this Agreement;
(c) by either AXENT or Symantec if a court of competent jurisdiction
or other Government Entity shall have issued an order, decree or ruling or
taken any other action, in any case having the effect of permanently
restraining, enjoining or otherwise prohibiting the Merger, which order,
decree, ruling or other action is final and nonappealable;
(d) by AXENT or Symantec if the required approval of the stockholders
of AXENT contemplated by this Agreement shall not have been obtained by
reason of the failure to hold a meeting or the failure to obtain the
required vote at a meeting of AXENT stockholders duly convened therefore or
at any adjournment thereof; provided, however, that the right to terminate
this Agreement under this Section 8.1(d) shall not be available to AXENT
where the failure to hold a meeting or the failure to obtain AXENT
stockholder approval shall have been caused by the action or failure to act
of AXENT (other than in compliance with Section 5.4(e)) and such action or
failure to act constitutes a material breach by AXENT of this Agreement.
(e) by AXENT or Symantec if the required approval of the stockholders
of Symantec contemplated by this Agreement shall not have been obtained by
reason of the failure to obtain the required vote at a meeting of Symantec
stockholders duly convened therefore or at any adjournment thereof;
provided, however, that the right to terminate this Agreement under this
Section 8.1(e) shall not be available to Symantec where the failure to
obtain Symantec stockholder approval shall have been caused by the action
or failure to act of Symantec and such action or failure to act constitutes
a material breach by Symantec of this Agreement.
(f) by Symantec (at any time prior to the Effective Time) if an AXENT
Triggering Event (as defined below) shall have occurred;
(g) by AXENT, upon a breach of any representation, warranty, covenant
or agreement on the part of Symantec set forth in this Agreement, or if any
representation or warranty of Symantec shall have become untrue, in either
case such that the conditions set forth in Section 7.1(a) or Section 7.1(b)
would not be satisfied as of the time of such breach or as of the time such
representation or warranty shall have become untrue, provided that such
inaccuracy in Symantec's representations and warranties or breach by
Symantec remains uncured on the date which is twenty (20) business days
following written notice of such breach or inaccuracy from AXENT to
Symantec (it being understood that AXENT may not terminate this Agreement
pursuant to this paragraph (g) if it shall have materially breached this
Agreement and remains in breach of this agreement as of the date of such
termination);
(h) by Symantec, upon a breach of any representation, warranty,
covenant or agreement on the part of AXENT set forth in this Agreement, or
if any representation or warranty of AXENT shall have become untrue, in
either case such that the conditions set forth in Section 7.2(a) or Section
7.2(b) would not be satisfied as of the time of such breach or as of the
time such representation or warranty shall have become untrue, provided
that such inaccuracy in AXENT's representations and warranties or breach by
AXENT remains uncured on the date which is twenty (20) business days
following written notice of such breach or inaccuracy from Symantec to
AXENT (it being understood that Symantec may not terminate this Agreement
pursuant to this paragraph (h) if it shall have materially breached this
Agreement and remains in breach of this agreement as of the date of such
termination);
(i) For the purposes of this Agreement, an "AXENT Triggering Event"
shall be deemed to have occurred if: (i) the board of directors of AXENT or
any committee thereof shall for any reason have withdrawn or shall have
amended or modified in a manner adverse to Symantec its unanimous
recommendation in favor of, the adoption and approval of the Agreement or
the approval of the Merger; (ii) AXENT shall have failed to include in the
Joint Proxy Statement/Prospectus the unanimous recommendation of the board
of directors of AXENT in favor of the adoption and approval of the
Agreement and the approval of the Merger; (iii) the board of directors of
AXENT fails to reaffirm its
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unanimous recommendation in favor of the adoption and approval of the
Agreement and the approval of the Merger within ten (10) days after
Symantec requests in writing that such recommendation be reaffirmed at any
time following the public announcement of an Acquisition Proposal; (iv) the
board of directors of AXENT or any committee thereof shall have approved or
recommended any Acquisition Proposal; or (v) a tender or exchange offer
relating to securities of AXENT shall have been commenced by a Person
unaffiliated with Symantec and AXENT shall not have sent to its security
holders pursuant to Rule 14e-2 promulgated under the Securities Act, within
ten (10) business days after such tender or exchange offer is first
published, sent or given, a statement disclosing that AXENT recommends
rejection of such tender or exchange offer.
8.2 Notice of Termination; Effect of Termination. Any termination of this
Agreement under Section 8.1 will be effective immediately upon the delivery of a
valid written notice of the terminating party to the other parties hereto. In
the event of the termination of this Agreement as provided in Section 8.1, this
Agreement shall be of no further force or effect, except (i) as set forth in
Section 5.3, this Section 8.2, Section 8.3 and Article IX (miscellaneous), each
of which shall survive the termination of this Agreement, and (ii) nothing
herein shall relieve any party from liability for any willful breach of this
Agreement. No termination of this Agreement shall affect the obligations of the
parties contained in the Confidentiality Agreement, all of which obligations
shall survive termination of this Agreement in accordance with their terms.
8.3 Fees and Expenses.
(a) General. Except as set forth in this Section 8.3, all fees and expenses
incurred in connection with this Agreement and the transactions contemplated
hereby shall be paid by the party incurring such expenses whether or not the
Merger is consummated; provided, however, that Symantec and AXENT shall share
equally all fees and expenses, other than attorneys' and accountants fees and
expenses, incurred in relation to the printing and filing (with the SEC) of the
Joint Proxy Statement/Prospectus (including any preliminary materials related
thereto) and the Registration Statement (including financial statements and
exhibits) and any amendments or supplements thereto. Symantec shall pay all fees
and expenses in connection with any filings under the HSR Act.
(b) AXENT Payments. In the event that this Agreement is terminated by
Symantec or AXENT, as applicable, pursuant to Sections 8.1(b), (d) or (f), AXENT
shall promptly, but in no event later than two days after the date of such
termination, pay Symantec a fee equal to $28.0 million, plus all reasonable
documented expenses incurred by Symantec in connection with this Agreement and
the transactions contemplated hereby, in immediately available funds (the
"Termination Fee"); provided, that in the case of termination under Section
8.1(b) or 8.1(d): (i) such payment shall be made only if following the date
hereof and prior to the termination of this Agreement, a third party has
publicly announced an Acquisition Proposal and within nine (9) months following
the termination of this Agreement an AXENT Acquisition (as defined below) is
consummated or AXENT enters into an agreement providing for an AXENT Acquisition
and such AXENT Acquisition is later consummated with the person (or another
person controlling, controlled by, or under common control with, such person)
with whom such agreement was entered into (regardless of when such consummation
occurs if AXENT has entered into such an agreement within such nine-month
period), and (ii) such payment shall be made promptly, but in no event later
than two days after the consummation of such AXENT Acquisition (regardless of
when such consummation occurs if AXENT has entered into such an agreement within
such nine-month period) in immediately available funds. AXENT acknowledges that
the agreements contained in this Section 8.3(b) are an integral part of the
transactions contemplated by this Agreement, and that, without these agreements,
Symantec would not enter into this Agreement; accordingly, if AXENT fails to pay
in a timely manner the amounts due pursuant to this Section 8.3(b) , and, in
order to obtain such payment, Symantec makes a claim that results in a judgment
against AXENT for the amounts set forth in this Section 8.3(b), AXENT shall pay
to Symantec its reasonable costs and expenses (including reasonable attorneys'
fees and expenses) in connection with such suit, together with interest on the
amounts set forth in this Section 8.3(b) at the prime rate of The Chase
Manhattan Bank in effect on the date such payment was required to be made.
Payment of the fees described in this Section 8.3(b) shall be credited toward
any damages payable by AXENT in the event of breach of this Agreement.
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For the purposes of this Agreement "AXENT Acquisition" shall mean any of
the following transactions (other than the transactions contemplated by this
Agreement); (i) a merger, consolidation, business combination, recapitalization,
liquidation, dissolution or similar transaction involving AXENT pursuant to
which the stockholders of AXENT immediately preceding such transaction hold less
than 50% of the aggregate equity interests in the surviving or resulting entity
of such transaction, (ii) a sale or other disposition by AXENT of assets
representing in excess of 50% of the aggregate fair market value of AXENT's
business immediately prior to such sale or (iii) the acquisition by any person
or group (including by way of a tender offer or an exchange offer or issuance by
AXENT), directly or indirectly, of beneficial ownership or a right to acquire
beneficial ownership of shares representing in excess of 50% of the voting power
of the then outstanding shares of capital stock of AXENT.
8.4 Amendment. Subject to applicable law, this Agreement may be amended by
the parties hereto at any time by execution of an instrument in writing signed
on behalf of each of Symantec and AXENT.
8.5 Extension; Waiver. At any time prior to the Effective Time any party
hereto may, to the extent legally allowed, (i) extend the time for the
performance of any of the obligations or other acts of the other parties hereto,
(ii) waive any inaccuracies in the representations and warranties made to such
party contained herein or in any document delivered pursuant hereto and (iii)
waive compliance with any of the agreements or conditions for the benefit of
such party contained herein. Any agreement on the part of a party hereto to any
such extension or waiver shall be valid only if set forth in an instrument in
writing signed on behalf of such party. Delay in exercising any right under this
Agreement shall not constitute a waiver of such right.
ARTICLE IX
MISCELLANEOUS
9.1 Amendment and Modification. Subject to applicable law, this Agreement
may be amended, modified or supplemented only by written agreement of Symantec,
Merger Sub and AXENT at any time prior to the Effective Time; provided, however,
that after approval of this Agreement by the stockholders of AXENT, no such
amendment or modification shall change the amount or form of the consideration
to be received by AXENT's stockholders in the Merger.
9.2 Waiver of Compliance; Consents. Any failure of Symantec or Merger Sub,
on the one hand, or AXENT, on the other hand, to comply with any obligation,
covenant, agreement or condition herein may be waived by AXENT (with respect to
any failure by Symantec or Merger Sub) or Symantec or Merger Sub (with respect
to any failure by AXENT), respectively, only by a written instrument signed by
the party granting such waiver, but such waiver or failure to insist upon strict
compliance with such obligation, covenant, agreement or condition shall not
operate as a waiver of, or estoppel with respect to, any subsequent or other
failure. Whenever this Agreement requires or permits consent by or on behalf of
any party hereto, such consent shall be given in writing in a manner consistent
with the requirements for a waiver of compliance as set forth in this Section
9.2.
9.3 Survival; Investigations. The respective representations and
warranties of Symantec, Merger Sub and AXENT contained herein or in any
certificates or other documents delivered prior to or at the Closing shall not
be deemed waived or otherwise affected by any investigation made by any party
hereto and shall not survive the Effective Time.
9.4 Notices. All notices and other communications hereunder shall be in
writing and shall be delivered personally by overnight courier or similar means
or sent by facsimile with written confirmation of receipt, to the parties at the
addresses specified below (or at such other address for a party as shall be
specified by like notice. Any such notice shall be effective upon receipt, if
personally delivered or on the next business day
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following transmittal if sent by confirmed facsimile. Notices, including oral
notices, shall be delivered as follows:
(a) if to AXENT, to: 2400 Research Boulevard
Suite 200
Rockville, Maryland 20850
Telephone: (301) 258-5043
Facsimile: (301) 670-3584
Attention: Chief Financial Officer
with a copy to: Shaw Pittman
1676 International Drive
McLean, Virginia 22102
Telephone: (703) 790-7900
Facsimile: (703) 790-7901
Attention: Craig E. Chason, Esq.
if to Symantec, or 20330 Stevens Creek Boulevard
Merger Sub, to: Cupertino, California 95014-2132
Telephone: (408) 253-9600
Facsimile: (408) 253-3968
Attention: Art Courville, General Counsel
with a copy to: Heller Ehrman White & McAuliffe LLP
525 University Avenue
Palo Alto, California 94301
Telephone: (650) 324-7000
Facsimile: (650) 324-0638
Attention: Richard A. Peers, Esq.
9.5 Assignment; Third Party Beneficiaries. Neither this Agreement nor any
right, interest or obligation hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties. This Agreement
shall be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns. This Agreement is not intended to
confer any rights or remedies upon any Person other than the parties hereto and,
with respect only to Section 5.8, the Indemnified Parties.
9.6 Governing Law. This Agreement shall be governed by the laws of the
State of Delaware without reference to principles of conflicts of laws. Courts
within the state of Delaware will have exclusive jurisdiction over any and all
disputes between the parties hereto, whether in law or equity, arising out of or
relating to this agreement and the agreements, instruments and documents
contemplated hereby. The parties consent to and agree to submit to the
jurisdiction of such courts. Each of the parties hereby waives, and agrees not
to assert in any such dispute, to the fullest extent permitted by applicable
law, any claim that (i) such party is not personally subject to the jurisdiction
of such courts, (ii) such party and such party's property is immune from any
legal process issued by such courts or (iii) any litigation commenced in such
courts is brought in an inconvenient forum.
9.7 Waiver of Jury Trial. EACH OF SYMANTEC, MERGER SUB AND AXENT 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 SYMANTEC, MERGER SUB OR AXENT IN
THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT HEREOF.
9.8 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.
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9.9 Severability. In case any one or more of the provisions contained in
this Agreement should be finally determined to be invalid, illegal or
unenforceable in any respect against a party hereto, it shall be adjusted if
possible to effect the intent of the parties. In any event, the validity,
legality and enforceability of the remaining provisions contained herein shall
not in any way be affected or impaired thereby, and such invalidity, illegality
or unenforceability shall only apply as to such party in the specific
jurisdiction where such final determination shall have been made.
9.10 Interpretation. The Article and Section headings contained in this
Agreement are solely for the purpose of reference and shall not in any way
affect the meaning or interpretation of this Agreement. The word "including"
shall be deemed to mean "including without limitation."
9.11 Entire Agreement. This Agreement and the Confidentiality Agreement
including the exhibits hereto and the documents and instruments referred to
herein (including the AXENT Disclosure Statement and the Symantec Disclosure
Statement), embody the entire agreement and understanding of the parties hereto
in respect of the subject matter contained herein. There are no representations,
promises, warranties, covenants, or undertakings, other than those expressly set
forth or referred to herein and therein.
9.12 Definition of "law". When used in this Agreement "law" refers to any
applicable law (whether civil, criminal or administrative) including, without
limitation, common law, statute, statutory instrument, treaty, regulation,
directive, decision, code, order, decree, injunction, resolution or judgment of
any government, quasi-government, supranational, federal, state or local
government, statutory or regulatory body, court, or agency.
9.13 Rules of Construction. Each party to this Agreement has been
represented by counsel during the preparation and execution of this Agreement,
and therefore waives any rule of construction that would construe ambiguities
against the party drafting the agreement.
[EXECUTION PAGE FOLLOWS]
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IN WITNESS WHEREOF, Symantec, Merger Sub and AXENT have caused this
Agreement to be signed by their respective duly authorized officers as of the
date first above written.
SYMANTEC CORPORATION
By: /s/ John W. Thompson
-------------------------------------
Name: John W. Thompson
------------------------------------
Title: President and Chief Executive
Officer
------------------------------------
APACHE ACQUISITION CORP.
By: /s/ John W. Thompson
-------------------------------------
Name: John W. Thompson
------------------------------------
Title: President
------------------------------------
AXENT TECHNOLOGIES, INC.
By: /s/ John C. Becker
-------------------------------------
Name: John C. Becker
------------------------------------
Title: Chief Executive Officer
------------------------------------
39
