Voting Agreement - Palm Inc. and Handspring Inc.
COMPANY VOTING AGREEMENT
This VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
June 4, 2003, by and between Palm, Inc., a Delaware corporation ("PARENT"), and
the undersigned stockholder and/or optionholder of the Company (the
"STOCKHOLDER") of Handspring, Inc., a Delaware corporation (the "COMPANY").
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement referred to below.
WHEREAS, as of the date hereof, Stockholder is the beneficial owner (as
defined in Rule 13d-3 under the Exchange Act) of such number of shares of the
outstanding capital stock of the Company, and such number of shares of capital
stock of the Company issuable upon the exercise of outstanding options and
warrants, as is indicated on Schedule A.
WHEREAS, concurrently with the execution of this Agreement, Parent,
Peace Separation Corporation, a Delaware corporation and direct wholly-owned
subsidiary of Parent, Harmony Acquisition Corporation, a Delaware corporation
and direct wholly-owned subsidiary of Parent ("MERGER SUB") and the Company are
entering into an Agreement of Plan of Reorganization, dated as of the date
hereof, and as may be amended from time to time (the "MERGER AGREEMENT"),
pursuant to which, upon the terms and subject to the conditions thereof, Merger
Sub will be merged with and into the Company, with the Company as the surviving
corporation (the "COMPANY MERGER") and all outstanding capital stock of the
Company will be converted into the right to receive common stock of Parent, as
set forth in the Merger Agreement; and
WHEREAS, in consideration of the execution of the Merger Agreement by
Parent, the Stockholder has agreed to vote the Subject Shares (as defined
below), so as to facilitate consummation of the Company Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereto hereby agree as follows:
1. Certain Definitions. For all purposes of and under this
Agreement, the following terms shall have the following respective meanings:
(a) "EXPIRATION DATE" shall mean the earlier to occur of
(i) such date and time as the Merger Agreement shall have been validly
terminated pursuant to its terms, or (ii) such date and time as the Company
Merger shall become effective in accordance with the terms and conditions set
forth in the Merger Agreement.
(b) "SHARES" shall mean: (i) all securities of the
Company (including all shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) owned by the
Stockholder as of the date of this Agreement and such other shares of capital
stock of the Company over which the Stockholder has voting power as indicated on
Schedule A, and (ii) all additional securities of the Company (including all
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additional shares of Company Common Stock and all additional options, warrants
and other rights to acquire shares of Company Common Stock) of which the
Stockholder acquires beneficial ownership during the period commencing with the
execution and delivery of this Agreement until the Expiration Date.
(c) "SUBJECT SHARES" shall mean those securities of the
Company owned by the Stockholder as of the date of this Agreement as indicated
on Schedule B.
(d) 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 (including any voting
interest), 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 Shares.
(a) No Transfer. 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 Shares to be effected, or discuss, negotiate
or make any offer regarding any Transfer of any of the Shares without the prior
written consent of Parent, provided that, notwithstanding the foregoing, the
Stockholder shall not be restricted from effecting a Transfer of any Subject
Shares to any member of the Stockholder's immediate family or to a trust for the
benefit of the Stockholder and/or any member of the Stockholder's immediate
family provided that each such transferee shall have (i) executed a counterpart
of this Agreement and a proxy in the form attached hereto as Exhibit A (with
such modifications as Parent may reasonably request) and (ii) agreed in writing
to hold such Subject Shares, or such interest therein, subject to all of the
terms and conditions set forth in this Agreement. For purposes of this
Agreement, "immediate family" means the Stockholder's spouse, parents, siblings,
children or grandchildren.
(b) No Transfer of Voting Rights. The Stockholder hereby
agrees that, at all times commencing with the execution and delivery of this
Agreement until the Expiration Date, the Stockholder shall not deposit, or
permit the deposit of, any Subject Shares in a voting trust, grant any proxy in
respect of the Subject Shares, or enter into any voting agreement or similar
arrangement or commitment with respect to any of the Subject Shares (other than,
in each case, this Agreement and the Proxy (as defined in Section 4)).
3. Agreement to Vote Shares. Until the Expiration Date, at every
meeting of stockholders of the Company called with respect to any of the
following, and at every adjournment or postponement thereof, and on every action
or approval by written consent of stockholders of the Company with respect to
any of the following, the Stockholder shall vote, to the extent not voted by the
person(s) appointed under the Proxy, the Subject Shares:
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(a) in favor of approval of the Company Merger and the
adoption and approval of the Merger Agreement, and in favor of each of the other
actions contemplated by the Merger Agreement and the Proxy and any action
required in furtherance thereof;
(b) in favor of any matter that could reasonably be
expected to facilitate the Company Merger, including waiving any notice that may
be required relating to Company Merger;
(c) against approval of any proposal made in opposition
to, or in competition with, consummation of the Company Merger and the
transactions contemplated by the Merger Agreement, including any proposal for
the acquisition or purchase of the Company's assets or capital stock by any
Person (other than Parent);
(d) against any other matter that could reasonably be
expected to facilitate any acquisition or purchase of the Company's assets or
capital stock by any Person (other than Parent); and
(e) against any other action that is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Company Merger or any of the other transactions
contemplated by the Merger Agreement.
Prior to the Expiration Date, the Stockholder shall not enter into any
agreement or understanding with any person to vote or give instructions with
respect to the Subject Shares 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 and hereby delivers to Parent a
proxy in the form attached hereto as Exhibit A (the "PROXY"), which shall be
coupled with an interest and, until the Expiration Date, irrevocable to the
fullest extent permissible by applicable law, with respect to the Subject
Shares.
5. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent that, as of the date hereof
and at all times until the Expiration Date:
(a) the Stockholder is (and will be, except with respect
to any Subject Shares that are Transferred pursuant to Section 2(a)) the
beneficial owner of the Subject Shares, with full and sole power to vote or
direct the voting of all of the Subject Shares, without restriction, for and on
behalf of all beneficial owners of the Subject Shares;
(b) the Subject Shares are (and will be, unless
Transferred pursuant to Section 2(a)) free and clear of any liens, pledges,
security interests, claims, options, rights of first refusal, co-sale rights,
charges or other encumbrances of any kind or nature;
(c) the Stockholder has, with respect to all of the
Subject Shares (and will have, except with respect to any Subject Shares that
are Transferred pursuant to Section 2(a)), legal capacity and all requisite
power and authority to make, enter into and perform the terms of this Agreement
and the Proxy;
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(d) this Agreement has been duly and validly executed and
delivered by the Stockholder and constitutes a valid and binding obligation of
the Stockholder, enforceable against the Stockholder in accordance with its
terms;
(e) the execution and delivery of this Agreement by
Stockholder do not, and the consummation of the transactions contemplated hereby
will not, conflict with or violate any material Legal Requirement or Permit
applicable to the Stockholder or result in any breach of or constitute a
material default (or an event that with notice or lapse of time or both would
become a material default) under, or materially impair the Stockholder's rights
or alter the rights or obligations of any third party under, or give to others
any rights of termination, amendment, acceleration or cancellation of, any
Contract applicable to the Subject Shares, or result in the creation of a Lien
on any of the Subject Shares; and
(f) except as expressly contemplated hereby, the
Stockholder is not a party to, and the Subject Shares are not subject to or
bound in any manner by, any contract or agreement relating to the Subject
Shares, including without limitation, any voting agreement, option agreement,
purchase agreement, stockholders' agreement, partnership agreement or voting
trust.
6. Legending of Shares. If so requested by Parent, the
Stockholder hereby agrees that the Subject Shares shall bear a legend stating
that they are subject to this Agreement and to an irrevocable proxy. Subject to
the terms of Section 2, the Stockholder hereby agrees that the Stockholder shall
not Transfer the Subject Shares without first having the aforementioned legend
affixed to the certificates representing the Subject Shares.
7. Consent and Waiver. Stockholder (not in his or her capacity as
a director or officer of the Company) hereby gives any consents or waivers that
are reasonably required for the consummation of the Company Merger under the
terms of any agreement to which such Stockholder is a party or pursuant to any
rights such Stockholder may have.
8. Miscellaneous.
(a) 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 the other party hereto. The
waiver of 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.
(b) Notices. All notices and other communications
hereunder shall be in writing and shall be deemed duly given (i) on the date of
delivery if delivered personally, (ii) on the date of confirmation of receipt
(or, the first business day following such receipt if the date is not a business
day) of transmission by telecopy or telefacsimile, or (iii) on the date of
confirmation of receipt (or, the first business day following such receipt if
the date is not a business day) if delivered by a nationally recognized courier
service. All notices hereunder shall be delivered as set forth below, or
pursuant to such other instructions as may be designated in writing by the party
to receive such notice:
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(i) if to Stockholder to the address set forth
on the respective signature page of this Agreement;
with a copy to:
Fenwick & West LLP
Silicon Valley Center
801 California Street
Mountain View, California 94041
Attn: Dennis R. DeBroeck
Douglas N. Cogen
Lynda M. Twomey
Telephone: (650) 988-8500
Telecopy: (650) 938-5200
(ii) if to Parent to:
Palm, Inc.
400 N. McCarthy Blvd.
Milpitas, California 95035
Attention: General Counsel
Telephone No.: (408) 503-7000
Telecopy No.: (408) 503-2750
with copies to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Attention: Larry W. Sonsini
Katharine A. Martin
Martin W. Korman
Telephone No.: (650) 493-9300
Telecopy No.: (650) 493-6811
(c) Interpretation. When reference is made in this
Agreement to a Section, Schedule or Exhibit, such reference shall be to a
Section, Schedule or Exhibit of this Agreement, unless otherwise indicated. The
headings contained in this Agreement are for convenience of reference only and
shall not affect in any way the meaning or interpretation of this Agreement.
Whenever the context may require, any pronouns used in this Agreement shall
include the corresponding masculine, feminine or neuter forms, and the singular
form of nouns and pronouns shall include the plural, and vice versa. Any
reference to any federal, state, local or foreign statute or law shall be deemed
also to refer to all rules and regulations promulgated thereunder, unless the
context requires otherwise. Whenever the words "include," "includes" or
"including"
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are used in this Agreement, they shall be deemed to be followed by the words
"without limitation."
(d) Counterparts. This Agreement may be executed in two
or more counterparts, all of which shall be considered one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other party,it being
understood that all parties need not sign the same counterpart.
(e) Entire Agreement. This Agreement constitutes the
entire agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof. This Agreement may not be
changed or modified, except by an agreement in writing specifically referencing
this Agreement and executed by each of the parties hereto.
(f) Severability. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other Persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the greatest extent possible,
the economic, business and other purposes of such void or unenforceable
provision. This Agreement shall, and it is the intent of the parties that this
Agreement shall, not preclude the Board of Directors of the Company or any
member thereof from exercising their fiduciary duties as required by applicable
law.
(g) Specific Performance. The parties hereto agree that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the parties shall be entitled
to seek an injunction or injunctions to prevent breaches of this Agreement and
to enforce specifically the terms and provisions hereof in any court of the
United States or any state having jurisdiction, this being in addition to any
other remedy to which they are entitled at law or in equity.
(h) Governing Law. This Agreement shall be governed by
and construed in accordance with the laws of the State of Delaware, regardless
of the laws that might otherwise govern under applicable principles of conflicts
of law thereof.
(i) Rules of Construction. The parties hereto agree that
they have been represented by counsel during the negotiation and execution of
this Agreement and, therefore, waive the application of any law, regulation,
holding or rule of construction providing that ambiguities in an agreement or
other document will be construed against the party drafting such agreement or
document.
(j) Binding Effect; Assignment. Stockholder may not
assign either this Agreement or any of the rights, interests, or obligations
hereunder without the prior written approval of Parent. Any purported assignment
in violation of this Section 8(j) shall be void.
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Subject to the preceding sentence, this Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective successors
and permitted assigns.
(k) Waiver of Jury Trial. EACH OF PARENT AND THE
STOCKHOLDER 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 PARENT OR
STOCKHOLDER IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT
HEREOF.
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly authorized officer
as of the date first written above.
PALM, INC.
By: _________________________________________
Name: _______________________________________
Title: ______________________________________
STOCKHOLDER:
_____________________________________________
Signature
_____________________________________________
Name
_____________________________________________
Address
_____________________________________________
Address
****COMPANY VOTING AGREEMENT****
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SCHEDULE A
NUMBER OF COMPANY
NUMBER OF COMPANY OPTIONS AND
STOCKHOLDER SHARES OWNED WARRANTS OWNED
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SCHEDULE B
SUBJECT SHARES
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of Handspring, Inc., a Delaware corporation
(the "COMPANY"), hereby irrevocably (to the fullest extent permitted by law)
appoints the executive officers and members of 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 related
rights (to the fullest extent that the undersigned is entitled to do so) with
respect to all of the Subject Shares, as defined in the Voting Agreement of even
date herewith by and between Parent and the undersigned Stockholder (the "VOTING
AGREEMENT") in accordance with the terms of this Proxy. The Subject Shares are
listed on the final page of this Proxy. Upon the undersigned's execution of this
Proxy, any and all prior proxies given by the undersigned with respect to any
Subject Shares (as defined in the Voting Agreement) are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Subject Shares until after the Expiration Date (as defined in the Voting
Agreement).
Until the Expiration Date, this Proxy is irrevocable (to the fullest
extent permitted by law), is coupled with an interest, is granted pursuant to
the Voting Agreement, and is granted in consideration of Parent entering into
that certain Agreement and Plan of Reorganization (as it may be amended from
time to time, the "MERGER AGREEMENT"), among Parent, the Company and certain
other parties thereto. The Merger Agreement provides for the merger of a wholly
owned subsidiary of Parent with and into the Company in accordance with its
terms (the "COMPANY MERGER"). Capitalized terms used and not otherwise defined
herein shall have the respective meanings assigned to them in the Merger
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 Subject Shares,
and to exercise all voting, consent and similar rights of the undersigned with
respect to the Subject Shares (including, without limitation, the power to
execute and deliver written consents) at every annual, special, adjourned or
postponed meeting of stockholders of the Company and in every written consent in
lieu of such meeting:
(a) in favor of approval of the Company Merger and the
adoption and approval of the Merger Agreement, and in favor of each of the other
actions contemplated by the Merger Agreement and the Proxy and any action
required in furtherance thereof;
(b) in favor of any matter that could reasonably be
expected to facilitate the Company Merger, including waiving any notice that may
be required relating to Company Merger;
(c) against approval of any proposal made in opposition
to, or in competition with, consummation of the Company Merger and the
transactions contemplated by the Merger Agreement, including any proposal for
the acquisition or purchase of the Company's assets or capital stock by any
Person (other than Parent);
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(d) against any other matter that could reasonably be
expected to facilitate any acquisition or purchase of the Company's assets or
capital stock by any Person (other than Parent); and
(e) against any other action that is intended, or could
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the Company Merger or any of the other transactions
contemplated by the Merger Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned Stockholder may vote
the Subject Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
[Remainder of Page Intentionally Left Blank]
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This Proxy is irrevocable (to the fullest extent permitted by law) and
shall terminate, and be of no further force and effect, automatically upon the
Expiration Date.
Dated: June ___, 2003
Signature of Stockholder:________________________
Print Name of Stockholder:
Subject Shares:
shares of Company Common Stock
shares of Company Common Stock
issuable upon exercise of
outstanding options or warrants
****IRREVOCABLE PROXY****