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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934
(Amendment No. )*
BINDVIEW DEVELOPMENT CORPORATION
(Name of Issuer)
Common Stock
(Title of Class of Securities)
090327107
(CUSIP Number)
Arthur F. Courville
Senior Vice President,
Corporate Legal Affairs and Secretary
Symantec Corporation
20330 Stevens Creek Blvd.
Cupertino, CA 95014
(408) 517-8000
Daniel J. Winnike
Fenwick & West LLP
801 California Street
Mountain View, CA 94041
(650) 875-2300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
October 2, 2005
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box. o
Note: Schedules filed in paper format shall include a signed original and five copies of the schedule, including all exhibits. See §240.13d-7 for other parties to whom copies are to be sent.
* The remainder of this cover page shall be filled out for a reporting persons initial filing on this form with respect to the subject class of securities, and for any subsequent amendment containing information which would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be deemed to be filed for the purpose of Section 18 of the Securities Exchange Act of 1934 (Act) or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes).
Persons who respond to the collection of information contained in this form are not required to respond unless the form displays a currently valid OMB control number.
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CUSIP No. 090327107 | Page 1 of 6 |
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1. |
Name of Reporting Person: Symantec Corporation |
I.R.S. Identification Nos. of above persons (entities only):
77-0181864 |
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2. |
Check the Appropriate Box if a Member of a Group (See Instructions): |
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(a) |
o |
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(b) |
o |
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3. |
SEC Use Only: |
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4. |
Source of Funds (See Instructions): OO |
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5. |
Check if Disclosure of Legal Proceedings Is Required Pursuant to Items 2(d) or 2(e): o |
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6. |
Citizenship or Place of Organization: State of Delaware |
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Number of Shares Beneficially Owned by Each Reporting Person With |
7. |
Sole Voting Power: None |
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8. | Shared Voting
Power: 9,683,0741 |
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9. | Sole Dispositive Power: None |
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10. | Shared Dispositive Power: None |
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11. | Aggregate Amount Beneficially Owned by Each Reporting Person: 9,683,0741 |
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12. | Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions): þ |
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13. | Percent of Class
Represented by Amount in Row (11): 19.9%2 |
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14. | Type of Reporting Person (See Instructions): CO |
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1Represents the aggregate number of outstanding shares of the issuers common stock
held by Eric J. Pulaski, Chairman and Chief Executive Officer of BindView Development
Corporation (BindView), Arshad Matin, President and Chief Operating Officer of BindView,
and Edward L. Pierce, Executive Vice President and Chief Financial Officer of BindView,
each of whom entered into a voting agreement dated October 2, 2005 with Symantec
Corporation (Symantec) obligating the holder to vote such shares in favor of the
proposed acquisition of the issuer by Symantec and related matters, and with respect
to which such persons granted Symantec a proxy granting Symantec the right to vote on
each such persons behalf in favor of such matters. For more information regarding the
BindView securities holdings of Messrs. Matin, Pierce and
Pulaski, please see Schedule B,
attached hereto. Symantec expressly disclaims beneficial ownership of any of the shares
of the issuers common stock subject to the voting agreements and proxies. |
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2Based on 48,666,237 shares of the issuers common stock outstanding as of
September 30, 2005, as represented by the issuer in the Agreement and Plan of Merger
discussed in Items 3 and 4 below. |
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CUSIP No. 090327107 |
Page 2 of 6 |
SCHEDULE 13D
Item 1. Security and Issuer.
The class of equity securities to which this statement relates is common stock, no par
value, of BindView Development Corporation, a Texas corporation (BindView). The principal
executive offices of BindView are located at 5151 San Felipe, 25th Floor,
Houston, Texas 77056.
Item 2. Identity and Background.
(a) The name of the corporation filing this statement is Symantec Corporation, a Delaware
corporation (Symantec).
(b) The address of Symantecs principal office is 20330 Stevens Creek Blvd., Cupertino,
California 95014.
(c) Symantec provides software, appliances and services designed to help individuals, small
and mid-sized businesses, and large enterprises secure and manage their information
technology.
(d) Neither Symantec nor, to Symantecs knowledge, any person named on Schedule A
attached hereto during the last five years, has been convicted in a criminal proceeding
(excluding traffic violations or similar misdemeanors).
(e) Neither Symantec nor, to Symantecs knowledge, any person named on Schedule A
attached hereto during the last five years, was a party to a civil proceeding of a judicial
or administrative body of competent jurisdiction and as a result of such proceeding was or
is subject to a judgment, decree, or final order enjoining future violations of, or
prohibiting or mandating activities subject to, Federal or state securities laws or finding
any violation with respect to such laws.
(f) To Symantecs knowledge, each of the individuals identified on Schedule A
attached hereto is a citizen of the United States.
Set forth on Schedule A is the name, principal occupation or employment, and the
name, principal business and address of any corporation or other organization in which such
employment is conducted, of each of the directors and executive officers of Symantec as of
the date hereof.
Item 3. Source and Amount of Funds or Other Consideration.
BindView entered into an Agreement and Plan of Merger, dated as of October 2, 2005, a copy
of which is attached hereto as Exhibit 1 (the Merger Agreement), with Symantec
that provides for the acquisition of BindView by Symantec by means of a merger of a wholly
owned subsidiary of Symantec (Merger Sub) with and into BindView. As a result of the
merger, BindView would become a wholly owned subsidiary of Symantec. As an inducement for
Symantec to enter into the Merger Agreement and in consideration thereof, certain executive
officers and directors of BindView identified on Schedule B (collectively, the
Securityholders), each entered into a separate Voting Agreement with Symantec, dated
October 2, 2005, the form of which is attached hereto as Exhibit 2 and more fully
described in Item 4, whereby each Securityholder agreed to vote all of the shares of
BindView common stock currently beneficially owned by such Securityholder or acquired by
such Securityholder after such date (including by means of exercise of stock options) in
favor of the merger and related matters. Each of these Securityholders also
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CUSIP No. 090327107 |
Page 3 of 6 |
granted Symantec an irrevocable proxy granting Symantec the right to vote such shares in
favor of such matters (the voting agreements and proxies together are referred to herein as
the Voting Agreements). Symantec did not pay additional consideration to the
Securityholders in exchange for the Voting Agreements.
References to, and descriptions of, the merger, the Merger Agreement and the Voting
Agreements throughout this Schedule 13D are qualified in their entirety by reference to the
Merger Agreement included as Exhibit 1 to this Schedule 13D and the Voting Agreement
included as Exhibit 2 to this Schedule 13D, respectively. These agreements are
incorporated into this Schedule 13D where such references and descriptions appear.
Item 4. Purpose of Transaction.
(a) (b) As described in Item 3 above, this Schedule 13D relates to the proposed
acquisition of BindView by Symantec pursuant to the terms of the Merger Agreement. To
induce Symantec to enter into the Merger Agreement, the Securityholders entered into the
Voting Agreements. The purpose of the Voting Agreements is to facilitate the consummation of
the merger.
The Merger Agreement provides that, at the effective time of the merger, each outstanding
share of BindView common stock will be converted into the right to receive $4.00 in cash,
without interest. Vested outstanding options to purchase BindView common stock with
exercise prices less than $4.00 will be converted into the right to receive the difference
between the strike price and $4.00. Options, whether vested or unvested, with an exercise
price equal to or in excess of $4.00 outstanding immediately prior to the consummation of
the merger will be terminated upon consummation of the merger.
By
executing the Voting Agreements, the Securityholders have (i) agreed to vote all of the shares of BindView common stock currently beneficially owned by them or acquired prior to
the expiration of the Voting Agreement, including by means of exercise of stock options, in
favor of the merger, adoption of the Merger Agreement and any other matter that could
reasonably be expected to facilitate the merger, and against any Alternative Transaction
Proposal (as defined in Article I of the Merger Agreement) and any other matter that might
reasonably be expected to impede, delay or materially and adversely affect the merger, and
(ii) granted irrevocable proxies to Symantec granting Symantec the right to vote such shares
as specified in clause (i). The Securityholders may vote such shares on all other matters
submitted to the BindView shareholders for their approval. The Voting Agreements terminate
upon the earlier to occur of (i) termination of the Merger Agreement, and (ii) the
effectiveness of the merger.
(c) Not applicable.
(d) It is anticipated that upon consummation of the merger, the officers and directors of
Merger Sub shall become the officers and directors of BindView (the surviving corporation in
the merger), until their respective successors are duly elected or appointed and qualified.
(e) Other than as a result of the merger described in Item 3 and above in this Item 4, not
applicable.
(f) Not applicable.
(g) Upon consummation of the merger, the Articles of Incorporation and Bylaws of BindView
shall be amended and restated in their entirety in accordance with the terms of Section 2.2
of the Merger Agreement.
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CUSIP No. 090327107 |
Page 4 of 6 |
(h) (i) If the Merger is consummated as planned, BindView common stock will cease to be
quoted on The Nasdaq Stock Market, Inc.s National Market System and will become eligible
for termination of registration pursuant to Section 12(g)(4) of the Securities Exchange Act
of 1934, as amended.
(j) Not applicable.
Item 5. Interest in Securities of the Issuer.
(a) (b) As a result of the Voting Agreements, Symantec may be deemed to be the beneficial
owner of 9,683,074 shares of BindView common stock. This number of shares
represents approximately 19.9% of the issued and outstanding shares of BindView common stock
based on the number of shares outstanding as of September 30, 2005 (as represented by
BindView in the Merger Agreement). Symantec disclaims any beneficial
ownership of such shares, and nothing herein shall be deemed to be an admission by Symantec as to the
beneficial ownership of such shares.
To Symantecs knowledge, no shares of BindView common stock are beneficially owned by any of
the persons identified in Schedule A to this Schedule 13D.
(b) Symantec may be deemed to have shared voting power of the 9,683,074 shares of
BindView common stock held by the Securityholders due to Symantecs right under the Voting
Agreements to direct the voting of such shares with respect to the matters specified in the
Voting Agreements (and to vote such shares in accordance with the proxies). However,
Symantec does not control the voting of such shares with respect to other matters, and does
not possess any other rights as a BindView shareholder with respect to such shares.
Information required by Item 2 (a)-(c) with respect to each Securityholder is set forth on
Schedule B. To Symantecs knowledge, none of the persons identified on Schedule
B (i) has been convicted in a criminal proceeding (excluding traffic violations or
similar misdemeanors) during the last five years, or (ii) was a party to a civil proceeding
of a judicial or administrative body of competent jurisdiction and as a result of such
proceeding was or is subject to a judgment, decree, or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or state
securities laws or finding any violation with respect to such laws during the last five
years. To Symantecs knowledge, each of the individuals identified on Schedule B is
a citizen of the United States.
(c) To Symantecs knowledge, no transactions in BindView common stock have been effected
during the past sixty days by any person named pursuant to Item 2.
(d) To Symantecs knowledge, no person other than the Securityholders identified on
Schedule B has the right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, such shares.
(e) Not applicable.
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CUSIP No. 090327107 |
Page 5 of 6 |
Item 6. Contracts, Arrangements, Understandings or Relationships With Respect to Securities of the
Issuer.
The terms of the Voting Agreements are described under Item 4(a)-(b) above. The Voting
Agreements also apply to any shares of BindView common stock acquired by the parties to such
agreements after the date of the Voting Agreements, including by means of exercise of stock
options. The number of shares that Symantec may be deemed to beneficially own as of the
date of filing of this Schedule 13D, as reported herein, does not include the shares
issuable upon exercise of the stock option referred to in the preceding sentence, nor any
other shares issuable upon the exercise of stock options held by the parties to the Voting
Agreements, and Symantec disclaims beneficial ownership of all such shares.
Item 7. Materials to be Filed as Exhibits.
The following documents are incorporated by reference as exhibits:
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Exhibit
No.
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Title |
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1
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Agreement and Plan of Merger, dated October 2, 2005, by and
among Symantec Corporation, Buena Vista Acquisition Corp. and
BindView Development Corporation (incorporated by reference to
Exhibit 2.1 to the Form 8-K (File No. 001-16693) filed by
BindView on October 5, 2005). |
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2
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Form of Voting Agreement, dated October 2, 2005, by and
between Symantec Corporation and certain securityholders of
BindView Development Corporation (incorporated by reference to
Exhibit B-2 of Exhibit 2.1 to the Form 8-K (File No.
001-16693) filed by BindView on October 5, 2005). |
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CUSIP No. 090327107 |
Page 6 of 6 |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the
information set forth in this statement is true, complete and correct.
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Dated: October 11, 2005 |
SYMANTEC CORPORATION
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By: |
/s/ Arthur F. Courville
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Arthur F. Courville |
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Senior Vice President, Corporate Legal Affairs and Secretary |
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Attention: Intentional misstatements or omissions of fact constitute Federal criminal violations
(See 18 U.S.C. 1001)
Schedule A
Directors and Executive Officers of Symantec Corporation
The following table sets forth the name, business address and present principal occupation or
employment of each director and executive officer of Symantec Corporation. Except as indicated
below, the business address of each person is c/o Symantec Corporation, 20330 Stevens Creek Blvd.,
Cupertino, California 95014.
Board of Directors
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John W. Thompson
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Gary L Bloom |
Chairman and CEO, Symantec Corporation
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Vice-Chairman and President, Symantec Corporation |
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Michael Brown
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William T. Coleman |
Board member and former CEO, Quantum
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Chairman and CEO, Cassatt Corporation |
1650 Technology Drive , Suite 800
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1740 Technology Drive, 6th Floor |
San Jose , CA 95110-1382
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San Jose, CA 95110 |
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David L. Mahoney
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Robert S. Miller |
Private Investor, Former Co-CEO of
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Chairman and CEO, Delphi Corporation |
McKesson HBOC
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5725 Delphi Drive |
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Troy, MI 48098 |
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George Reyes
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David Roux |
CFO, Google Inc.
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Managing Director, Silver Lake Partners |
1600 Amphitheatre Parkway
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2725 Sand Hill Road |
Mountain View, CA 94043
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Suite 150 |
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Menlo Park, California 94025 |
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Daniel H. Schulman.
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V. Paul Unruh |
CEO, Virgin Mobile USA
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Former Vice Chairman, Bechtel Group |
10 Independence Blvd # 2 |
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Warren, NJ 07059 |
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Executive Officers
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Name
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Title |
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John W. Thompson
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Chief Executive Officer |
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Gary L. Bloom
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President |
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Gregory E. Myers
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Senior Vice President of Finance and Chief
Financial Officer |
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Arthur F. Courville
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Senior Vice President, Corporate Legal Affairs
and Secretary |
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John F. Brigden
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Senior Vice President, General Counsel and
Assistant Secretary |
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Thomas W. Kendra
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Senior Vice President, Worldwide Sales |
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Stephen C. Markowski
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Vice President of Finance and Chief Accounting
Officer |
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Rebecca Ranninger
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Senior Vice President, Human Resources |
Schedule B
Parties to Voting Agreements with Symantec Corporation
The following table sets forth the name and principal occupation or employment of each
securityholder of BindView that has entered into a Voting Agreement with Symantec in connection
with the Merger Agreement, and the aggregate number of shares of BindView common stock held by each
such person as of October 2, 2005.* Except as otherwise indicated below, the
business address of each person set forth on this Schedule B is: c/o BindView Development
Corporation, 5151 San Felipe, 25th Floor, Houston, Texas 77056.
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Exercisable Options |
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Total Beneficial |
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to Purchase Shares |
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Ownership of |
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Shares Held as of |
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within 60 Days of |
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Shares as of |
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Name |
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October 2, 2005 |
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October 2, 2005 |
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October 2, 2005 |
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Eric J. Pulaski
(Chairman and Chief
Executive Officer,
BindView
Development
Corporation) |
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8,820,002 |
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212,500 |
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9,032,502 |
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Arshad Matin
(President and
Chief Operating
Officer, BindView
Development
Corporation) |
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323,662 |
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270,625 |
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594,287 |
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Edward L. Pierce
(Executive Vice
President and Chief
Financial Officer,
BindView
Development
Corporation) |
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539,410 |
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268,749 |
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808,159 |
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Total |
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9,683,074 |
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751,874 |
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10,434,948 |
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As noted in Item 6 above, the Voting
Agreements also apply to any shares of BindView common stock acquired by the
parties to such agreements after the date of the Voting Agreements, including
by means of exercise of stock options. As noted in each applicable column, the
above table includes both the total shares of common stock held as of October
2, 2005 and the number of options exercisable within sixty (60) days of October
2, 2005. |
EXHIBIT INDEX
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Exhibit
No.
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Title |
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1
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Agreement and Plan of Merger, dated as of October 2, 2005, by
and among Symantec Corporation, Buena Vista Acquisition Corp.
and BindView Development Corporation (incorporated by
reference to Exhibit A to the Form 8-K (File No. 001-16693)
filed by BindView on October 5, 2005). |
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2
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Form of Voting Agreement, dated October 2, 2005, by and
between Symantec Corporation, and certain securityholders of
BindView Development Corporation (incorporated by reference
to Exhibit A to the Form 8-K (File No. 001-16693) filed by
BindView on October 5, 2005). |