Stockholder Support Agreement - Palm Inc. and Be Inc.
STOCKHOLDER SUPPORT AGREEMENT
This Stockholder Support Agreement ("Agreement") is made and entered into
as of August 16, 2001, among Palm, Inc., a Delaware corporation ("Parent"), ECA
Subsidiary Acquisition Corporation, a Delaware corporation and an indirect
wholly owned subsidiary of Parent ("Buyer") and the undersigned stockholder (the
"Stockholder") of Be Incorporated, a Delaware corporation ("Seller").
RECITALS
A. Parent, Buyer and Seller are entering into an Asset Purchase Agreement
of even date herewith (the "Asset Agreement"), which provides for the sale by
Seller to Buyer of substantially all of the assets relating to, required for,
used in or otherwise constituting the Operating Systems (as defined in the Asset
Agreement) of Seller, in exchange for shares of common stock of Parent, the
assumption by Buyer of certain liabilities relating to the Operating Systems and
other consideration (the "Transaction").
B. The Stockholder is (i) the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended) (but not the record
owner) of such number of issued and outstanding shares of the outstanding common
stock of Seller ("Seller Common Stock") as is indicated on the signature page of
this Agreement, (ii) the record owner of such number of shares of Seller Common
Stock as is indicated on the signature page of this Agreement and (iii) the
holder of options to purchase the number of shares of Seller Common Stock
indicated on the signature page of this Agreement.
C. In consideration of the execution of the Asset Agreement by Parent and
Buyer, the Stockholder (in his capacity as such) has agreed to vote the Shares
(as defined below)as set forth herein.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not defined herein shall
have the respective meanings ascribed thereto in the Asset Agreement. For all
purposes of and under this Agreement, the following terms shall have the
following respective meanings:
1.1 "Expiration Date" shall mean the earlier to occur of (i) the date
on which the Asset Agreement is validly terminated pursuant to its terms,
or (ii) the Closing Date (as defined in the Asset Agreement).
1.2 "Person" shall mean any individual, any corporation, limited
liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
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1.3 "Shares" shall mean all of the issued and outstanding shares of
capital stock of Seller (including all shares of Seller Common Stock) that
now are or hereafter may be owned of record or beneficially owned by the
Stockholder.
1.4 "Subject Securities" shall mean: (i) all securities of Seller
(including all shares of Seller Common Stock and all options, warrants and
other rights to acquire shares of Seller Common Stock) owned by the
Stockholder as of the date of this Agreement, and (ii) all additional
securities of Seller (including all additional shares of Seller Common
Stock and all additional options, warrants and other rights to acquire
shares of Seller Common Stock) of which the Stockholder acquires beneficial
ownership during the period commencing with the execution and delivery of
this Support Agreement and continuing until the Expiration Date.
1.5 Transfer. A Person shall be deemed to have effected a "Transfer"
of a security if such person directly or indirectly (i) sells, pledges,
encumbers, grants an option with respect to, transfers or otherwise
disposes of such security or any interest therein, or (ii) enters into an
agreement or commitment providing for the sale of, pledge of, encumbrance
of, grant of an option with respect to, transfer of or disposition of such
security or any interest therein.
2. Transfer of Securities.
2.1 Transferee of Securities to be Bound by this Agreement. The
Stockholder hereby agrees that, at all times during the period commencing
with the execution and delivery of this Agreement until the Expiration
Date, the Stockholder shall not cause or permit any Transfer of any of the
Subject Securities to be effected, unless each Person to which any such
Subject Securities, or any interest therein, is Transferred shall have
executed a binding counterpart of this Support Agreement and a proxy
substantially in the form attached hereto as Exhibit A.
2.2 Transfer of Voting Rights. The Stockholder hereby agrees that, at
all times commencing with the execution and delivery of this Agreement and
continuing until the Expiration Date, the Stockholder shall not deposit, or
permit the deposit of, any Shares in a voting trust, grant any proxy in
respect of the Shares, or enter into any voting agreement or similar
arrangement or commitment in contravention of the obligations of the
Stockholder under this Agreement with respect to any of the Shares.
3. Agreement to Vote Shares. Until the Expiration Date, at every meeting of
stockholders of Seller called with respect to any of the following matters, and
at every adjournment or postponement thereof, and on every action or approval by
written consent of stockholders of Seller with respect to any of the following
matters, the Stockholder shall, and the Stockholder shall use his best efforts
to cause the holder of record of any Shares to, vote, to the extent not voted by
the person(s) appointed under the Proxy (as defined in Section 4 hereof), the
Shares:
3.1 in favor of approval of the Transaction and the adoption and
approval of the Asset Agreement, and in favor of each of the other actions
contemplated by the Asset Agreement, including the Dissolution (as defined
in the Asset Agreement);
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3.2 against approval of any proposal made in opposition to, or in
competition with, consummation of the Transaction and the actions
contemplated by the Asset Agreement, including the Dissolution; and 3.3
against any other action that is intended, or would reasonably be expected
to, impede, interfere with, delay, postpone, discourage or adversely affect
the Transaction or any of the other actions contemplated by the Asset
Agreement, including the Dissolution.
Prior to the Expiration Date, the Stockholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with the terms of this Section 3.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to Buyer, and to use his best efforts to cause
holders of record of shares beneficially owned by Stockholder to deliver to
Buyer, a proxy in the form attached hereto as Exhibit A (the "Proxy"), which
shall be irrevocable to the fullest extent permissible by applicable law, with
respect to the Shares.
5. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Buyer that, as of the date hereof: (i) the
Stockholder is the beneficial owner of the number of issued and outstanding
shares of Seller Common Stock set forth on signature page of this Agreement,
(ii) the Stockholder is the record owner of the number of issued and outstanding
shares of Seller Common Stock set forth on signature page of this Agreement,
with full power to vote or direct the voting of such shares for and on behalf of
all beneficial owners of such shares; (iii) the Shares are (and will be, unless
Transferred pursuant to Section 2.1 hereof) free and clear of any liens,
pledges, security interests, claims, options, rights of first refusal, co-sale
rights, charges or other encumbrances; (iv) the Stockholder does not
beneficially own any securities of Seller other than the shares of Seller Common
Stock, and options, warrants and other rights to purchase shares of Seller
Common Stock, set forth on the signature page of this Agreement; and (v) the
Stockholder has full power and authority to make, enter into and carry out the
terms of this Agreement and the Proxy.
6. Additional Documents. The Stockholder and Buyer hereby covenant and
agree to execute and deliver any additional documents reasonably necessary or
desirable to carry out the purpose and intent of this Agreement.
7. Termination. This Agreement, the Proxy and all obligations of the
Stockholder hereunder and thereunder shall terminate and be of no further force
or effect as of the Expiration Date.
8. Miscellaneous.
8.1 Waiver. No waiver by any party hereto of any condition or any
breach of any term or provision set forth in this Agreement shall be
effective unless in writing and signed by each party hereto. The waiver of
a condition or any breach of any term or provision of this Agreement shall
not operate as or be construed to be a waiver of any other previous or
subsequent breach of any term or provision of this Agreement.
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8.2 Severability. In the event that any term, provision, covenant or
restriction set forth in this Agreement, or the application of any such
term, provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to
be invalid, unlawful, void or unenforceable to any extent, the remainder of
the terms, provisions, covenants and restrictions set forth in this
Agreement shall remain in full force and effect, shall not be impaired,
invalidated or otherwise affected and shall continue to be valid and
enforceable to the fullest extent permitted by applicable law.
8.3 Binding Effect; Assignment. This Agreement and all of the terms
and provisions hereof shall be binding upon, and inure to the benefit of,
the parties hereto and their respective successors and permitted assigns,
but, except as otherwise specifically provided herein, neither this
Agreement nor any of the rights, interests or obligations of either party
hereto may be assigned without the prior written consent of the other
party.
8.4 Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written
agreement executed by each of the parties hereto.
8.5 Specific Performance; Injunctive Relief. Each of the parties
hereto hereby acknowledge that (i) the representations, warranties,
covenants and restrictions set forth in this Agreement are necessary,
fundamental and required for the protection of Buyer and to preserve for
Buyer the benefits of the Transaction; (ii) such covenants relate to
matters which are of a special, unique, and extraordinary character that
gives each such representation, warranty, covenant and restriction a
special, unique, and extraordinary value; and (iii) a breach of any such
representation, warranty, covenant or restriction, or any other term or
provision of this Agreement, will result in irreparable harm and damages to
Buyer which cannot be adequately compensated by a monetary award.
Accordingly, Buyer and the Stockholder hereby expressly agree that in
addition to all other remedies available at law or in equity, Buyer shall
be entitled to seek the immediate remedy of specific performance, a
temporary and/or permanent restraining order, preliminary injunction, or
such other form of injunctive or equitable relief as may be used by any
court of competent jurisdiction to restrain or enjoin any of the parties
hereto from breaching any representations, warranties, covenants or
restrictions set forth in this Agreement, or to specifically enforce the
terms and provisions hereof.
8.6 Governing Law. This Agreement shall be governed by and construed,
interpreted and enforced in accordance with the internal laws of the State
of Delaware without giving effect to any choice or conflict of law
provision, rule or principle (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any
jurisdiction other than the State of Delaware.
8.7 Entire Agreement. This Agreement and the Proxy and the other
agreements referred to in this Agreement set forth the entire agreement and
understanding of Buyer and the Stockholder with respect to the subject
matter hereof and thereof, and supersede all prior discussions, agreements
and understandings between Buyer and the Stockholder, both oral and
written, with respect to the subject matter hereof and thereof.
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8.8 Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid,
to the respective parties at the following address (or at such other
address for a party as shall be specified by like notice):
(a) if to Buyer or Parent, to:
Palm, Inc.
5470 Great America Parkway
Santa Clara, CA 95052
Attention: [ ]
Tel.: (408) 326-7487
Fax: (408) 326-9770
with a copy to:
Palm, Inc.
5470 Great America Parkway
Santa Clara, CA 95052
Attention: General Counsel
Tel.: (408) 326-7487
Fax: (408) 326-9770
and a copy to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304-1050
Attention: Robert Sanchez
Craig Norris
Tel.: (650) 493-9300
Fax: (650) 493-6811
(b) if to the Stockholder, to the address for notice set forth on
the last page hereof, or to such other address as any party may have
furnished to the other in writing in accordance herewith, except that
notices of change of address shall only be effective upon receipt.
8.9 Entire Agreement. This Agreement contains the entire understanding
of the parties in respect of the subject matter hereof, and supersedes all
prior negotiations and understandings, both oral and written, between the
parties with respect to such subject matter.
8.10 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
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8.11 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
PALM, INC. ("PARENT") ECA Subsidiary Acquisition Corporation ("BUYER")
By:_________________________ By:___________________________
(Signature) (Signature)
Name:_______________________ Name:_________________________
(Print Name) (Print Name)
Title:______________________ Title:________________________
"STOCKHOLDER:"
_______________________________________________
(Print Stockholder Name)
By:____________________________________________
(Signature)
Name:__________________________________________
(Print Name)
Title:_________________________________________
_______________________________________________
Telephone
_______________________________________________
Facsimile No.
________________ shares of Seller Common Stock
owned beneficially (but not of record) on the
date hereof
________________ shares of Seller Common Stock
owned of record on the date hereof
________________ shares of Seller Common
Stock issuable upon the exercise of outstandin
options, warrants or other rights held on the
date hereof
Address:
_______________________________________________
_______________________________________________
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Be Incorporated, a Delaware corporation (the
"Seller"), hereby irrevocably (to the fullest extent permitted by law) appoints
the directors on the Board of Directors of Palm, Inc., a Delaware corporation
("Parent"), and each of them, as the sole and exclusive attorneys and proxies of
the undersigned, with full power of substitution and resubstitution, to vote and
exercise all voting and consent rights (to the full extent that the undersigned
is entitled to do so) with respect to all of the issued and outstanding shares
of capital stock of Seller (including all shares of Seller Common Stock) that
now are or hereafter may be owned of record by the undersigned (collectively,
the "Shares") in accordance with the terms of this Proxy. The Shares owned of
record by the undersigned stockholder of Seller as of the date of this Proxy are
listed on the final page of this Proxy. Upon the execution of this Proxy by the
undersigned, any and all prior proxies given by the undersigned with respect to
any Shares are hereby revoked and the undersigned hereby agrees not to grant any
subsequent proxies with respect to the Shares until after the Expiration Date
(as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Stockholder
Support Agreement of even date herewith by and among Parent, ECA Subsidiary
Acquisition Corporation, a Delaware corporation and an indirect wholly owned
subsidiary of Parent ("Buyer"), and the undersigned stockholder (the "Support
Agreement"), and is granted in consideration of Buyer entering into that certain
Asset Purchase Agreement (the "Asset Agreement"), of even date herewith, by and
among Parent, Buyer and Seller, which provides for the sale by Seller of
substantially all of the assets relating to, required for, used in or otherwise
constituting the Operating Systems (as defined in the Asset Agreement) of
Seller, in exchange for shares of common stock of Buyer, the assumption by Buyer
of certain liabilities relating to the Operating Systems and other consideration
(the "Transaction"). As used herein, the term "Expiration Date" shall mean the
earlier to occur of (i) the date on which the Asset Agreement shall have been
validly terminated pursuant to its terms, or (ii) the Closing Date (as defined
in the Asset Agreement).
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and consent rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents) at every annual, special, adjourned or postponed meeting of
stockholders of Seller and in every written consent in lieu of such meeting:
(i) in favor of approval of the Transaction and the adoption and
approval of the Asset Agreement, and in favor of each of the other actions
contemplated by the Asset Agreement, including the Dissolution (as defined
in the Asset Agreement);
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Transaction and the actions
contemplated by the Asset Agreement, including the Dissolution; and
(iii) against any other action that is intended, or would reasonably
be expected to, impede, interfere with, delay, postpone, discourage or
adversely affect the Transaction or any of the other actions contemplated
by the Asset Agreement, including the Dissolution. The attorneys and
proxies named above may not exercise this Proxy to vote, consent or act on
any matter except as provided above. The undersigned stockholder may vote
the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
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Dated: ____________, 2001
Signature of Stockholder:____________________________________
Print Name of Stockholder:___________________________________
________________
________________
________________ shares of Seller Common Stock owned of record on
the date hereof