1
EXHIBIT 3
STOCKHOLDER AGREEMENT
THIS STOCKHOLDER AGREEMENT (the "Agreement") is made and entered
into as of November 9, 2000, between Cisco Systems, Inc., a California
corporation ("Parent"), Aqua Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of Parent ("Merger Sub"), and the undersigned
shareholder ("Shareholder") of Active Voice Corporation, a Washington
corporation ("Company").
RECITALS:
WHEREAS, pursuant to an Agreement and Plan of Merger and
Reorganization dated as of November 9, 2000, by and between Parent, Merger Sub
and Company (such agreement as it may be amended or restated is hereinafter
referred to as the "Reorganization Agreement"), the parties agreed that on the
signing of the Reorganization Agreement, Parent, Merger Sub and Shareholder
would execute and deliver a Stockholder Agreement containing the terms and
conditions set forth in an Exhibit to the Reorganization Agreement together with
such other terms and conditions as may be agreed to by the parties to the
Reorganization Agreement acting reasonably;
WHEREAS, Parent has agreed to acquire the outstanding securities
of Company pursuant to a statutory merger of Merger Sub with and into Company
(the "Merger") effected in part through the conversion of each outstanding share
of capital stock of Company (the "Company Capital Stock"), into shares of common
stock of Parent (the "Parent Shares") at the rate set forth in the
Reorganization Agreement (the "Transaction");
WHEREAS, in order to induce Parent to enter into the Transaction,
Company has agreed to use its best efforts to solicit the proxy of certain
shareholders of Company on behalf of Parent, and to cause certain shareholders
of Company to execute and deliver Stockholder Agreements to Parent;
WHEREAS, Shareholder is the registered and beneficial owner of
such number of shares of the outstanding Company Capital Stock as is indicated
on the signature page of this Agreement (the "Shares"); and
WHEREAS, in order to induce Parent to enter into the Transaction,
certain shareholders of Company have agreed not to transfer or otherwise dispose
of any of the Shares, or any other shares of Company Capital Stock acquired by
such shareholder hereafter and prior to the Expiration Date (as defined in
Section 1.1 below), and have agreed to vote the Shares and any other such shares
of Company Capital Stock so as to facilitate consummation of the Transaction.
2
NOW, THEREFORE, the parties agree as follows:
1. Share Ownership and Agreement to Retain Shares.
1.1 Transfer and Encumbrance.
(a) Shareholder represents, warrants and covenants
to Parent that (i) Shareholder is the beneficial owner of that number of Shares
of Company Capital Stock set forth on the signature page hereto and, except as
otherwise set forth on the signature page hereto, has held such Company Capital
Stock at all times since the date set forth on such signature page; (ii) the
Shares constitute the Shareholder's entire interest in the outstanding Company
Capital Stock; (iii) no other person or entity not a signatory to this Agreement
has a beneficial interest in or a right to acquire the Shares or any portion of
the Shares; and (iv) the Shares are and will be at all times up until the
Expiration Date free and clear of any liens, claims, options, charges or other
encumbrances.
(b) Shareholder agrees not to transfer (except as
may be specifically required by court order or by operation of law), sell,
exchange, pledge or otherwise dispose of or encumber the Shares or any New
Shares (as defined below), or to make any offer or agreement relating thereto,
at any time prior to the Expiration Date. As used herein, the term "Expiration
Date" shall mean the earlier to occur of (i) the Effective Time (as defined in
the Reorganization Agreement) of the Transaction, and (ii) the termination of
the Reorganization Agreement.
1.2 New Shares. Shareholder agrees that any shares of
Company Capital Stock that Shareholder purchases or with respect to which
Shareholder otherwise acquires beneficial ownership after the date of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. Prior to the Expiration Date, at
every meeting of the shareholders of Company called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written resolution of the shareholders of Company with respect to any of the
following, Shareholder shall vote the Shares and any New Shares (i) in favor of
approval of the Transaction and any matter that could reasonably be expected to
facilitate the Transaction and (ii) against any proposal for any
recapitalization, merger, sale of assets or other business combination (other
than the Transaction) between Company and any person or entity other than Parent
and Merger Sub.
3. Irrevocable Proxy. Shareholder is hereby delivering to Parent
a duly executed proxy in the form attached hereto as Exhibit A (the "Proxy")
with respect to each meeting of shareholders (or written consent in lieu
thereof) of Company, such Proxy to cover the total number of Shares and New
Shares in respect of which Shareholder is entitled to vote at any such meeting.
Upon the execution of this Agreement by the Shareholder, the Shareholder hereby
revokes any and all prior proxies given by the Shareholder with respect to the
Shares and agrees not to grant any subsequent proxies with respect to the Shares
or any New Shares until after the Expiration Date.
2
3
4. Representations, Warranties and Covenants of Shareholder.
Shareholder hereby represents, warrants and covenants to Parent as follows:
(a) Until the Expiration Date, the Shareholder will not
(and will use such Shareholder's reasonable best efforts to cause Company, its
affiliates, officers, directors and employees and any investment banker,
attorney, accountant or other agent retained by such Shareholder or them, not
to): (i) initiate or solicit, directly or indirectly, any proposal, plan of
offer to acquire all or any substantial part of the business or properties or
Company Capital Stock, whether by merger, purchase of assets, tender offer or
otherwise, or to liquidate Company or otherwise distribute to the shareholders
of Company all or any substantial part of the business, properties or Company
Capital Stock (each, an "Acquisition Proposal"); (ii) initiate, directly or
indirectly, any contact with any person in an effort to or with a view towards
soliciting any Acquisition Proposal; (iii) furnish information concerning
Company's business, properties or assets to any corporation, partnership, person
or other entity or group (other than Parent or Merger Sub, or any associate,
agent or representative of Parent or Merger Sub), under any circumstances that
would reasonably be expected to relate to an actual or potential Acquisition
Proposal; or (iv) negotiate or enter into discussions or an agreement, directly
or indirectly, with any entity or group with respect of any potential
Acquisition Proposal provided that, in the case of clauses (iii) and (iv), the
foregoing shall not prevent Shareholder, in Shareholder's capacity as a director
or officer (as the case may be) of Company, from taking any actions permitted
under Section 4.3 of the Reorganization Agreement. In the event the Shareholder
shall receive or become aware of any Acquisition Proposal subsequent to the date
hereof, such Shareholder shall promptly inform Parent as to any such matter and
the details thereof to the extent possible without breaching any other agreement
to which such Shareholder is a party or violating its fiduciary duties.
(b) Shareholder is competent to execute and deliver this
Shareholder Agreement, to perform its obligations hereunder and to consummate
the transactions contemplated hereby. This Stockholder Agreement has been duly
and validly executed and delivered by Shareholder and, assuming the due
authorization, execution and delivery by Parent, constitutes a legal, valid and
binding obligation of Shareholder, enforceable against Shareholder in accordance
with its terms except that (i) the enforceability thereof may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereinafter in
effect affecting creditors' rights generally and (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefor may be brought.
(c) The execution and delivery of this Stockholder
Agreement by Shareholder does not, and the performance of this Stockholder
Agreement by Shareholder shall not result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance, on any of the Shares or New Shares pursuant to, any note, bond,
mortgage, indenture, contract, agreement, lease, license, permit, franchise or
other instrument or obligation to which Shareholder is a party or by which
Shareholder or the Shares or New Shares are or will be bound or affected.
3
4
5. Additional Documents. Shareholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent, to carry out the purpose and intent of this
Agreement.
6. Consent and Waiver. Shareholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Transaction
under the terms of any agreement to which Shareholder is a party or pursuant to
any rights Shareholder may have.
7. Termination. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date.
8. Confidentiality. Shareholder agrees (i) to hold any
information regarding this Agreement and the Transaction in strict confidence,
and (ii) not to divulge any such information to any third person, until such
time as the Transaction has been publicly disclosed by Parent.
9. Miscellaneous.
9.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
9.2 Binding Effect and Assignment. This Agreement and all
of the 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 the parties hereto may be assigned by
either of the parties without the prior written consent of the other. This
Agreement is binding upon Shareholder in Shareholder's capacity as a shareholder
of Company (and not in Shareholder's capacity as a director or officer, as the
case may be, of Company) and only with respect to the specific matters set forth
herein.
9.3 Amendment and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Shareholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent or Merger Sub upon any such
violation, Parent and Merger Sub shall have the right to enforce such covenants
and agreements by specific performance, injunctive relief or by any other means
available to Parent or Merger Sub at law or in equity and the Shareholder hereby
waives any and all defenses which could exist in its favor in connection with
such enforcement and waives any requirement for the security or posting of any
bond in connection with such enforcement.
9.5 Notices. All notices, requests, demands or other
communications that are required or may be given pursuant to the terms of this
Stockholder Agreement shall be in
4
5
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail, postage prepaid, as follows:
(a) If to the Shareholder, at the address set forth
below the Shareholder's signature at the end hereof.
(b) if to Parent or Merger Sub, to:
Cisco Systems, Inc.
000 Xxxx Xxxxxx Xxxxx
Xxx Xxxx, XX 00000-0000
Attention: Senior Vice President, Legal and
Government Affairs
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(c) if to Company, to:
Active Voice Corporation
0000 Xxxxx Xxxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Chief Executive Officer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxx X. Steel, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (206) 839-
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
5
6
9.6 Governing Law. This Amendment shall be governed by,
construed and enforced in accordance with the laws of the State of Delaware,
without regard to any applicable conflicts of laws rules.
9.7 Entire Agreement. This Agreement and the Proxy contain
the entire understanding of the parties in respect of the subject matter hereof,
and supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 Counterpart. 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.
9.9 Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction or interpretation of
this Agreement.
[Signature page follows.]
6
7
IN WITNESS WHEREOF, the parties have caused this Stockholder Agreement
to be executed as of the date first above written.
CISCO SYSTEMS, INC. SHAREHOLDER
By:
-------------------------------- -------------------------------------
(Signature)
Name:
------------------------------ -------------------------------------
(Print Name)
Title:
----------------------------- -------------------------------------
(Print Address)
AQUA ACQUISITION CORPORATION -------------------------------------
(Print Address)
By:
--------------------------------
-------------------------------------
Name: (Print Telephone Number)
------------------------------
Title:
----------------------------- -------------------------------------
(Social Security or Tax I.D. Number)
Total Number of Shares of Company Capital Stock owned on the date hereof:
Common Stock:
-----------------------------
[SIGNATURE PAGE TO STOCKHOLDER AGREEMENT]
8
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
ACTIVE VOICE CORPORATION
The undersigned shareholder of Active Voice Corporation, a
Washington corporation ("Company"), hereby irrevocably (to the full extent
permitted by the Washington Business Corporation Act) appoints the members of
the Board of Directors of Cisco Systems, Inc., a California corporation
("Parent"), and each of them, or any other designee of Parent, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
shareholder of Company as of the date of this Irrevocable Proxy are listed on
the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in
the Washington Business Corporation Act), is coupled with an interest,
including, but not limited to, that certain Stockholder Agreement dated as of
even date herewith by and among Parent, Aqua Acquisition Corporation and the
undersigned, and is granted in consideration of Parent entering into that
certain Agreement and Plan of Merger and Reorganization between Company, Parent
and Merger Sub (the "Reorganization Agreement"), which agreement provides for
the merger of Merger Sub with and into Company (the "Merger"). As used herein,
the term "Expiration Date" shall mean the earlier to occur of (i) such date and
time as the Merger shall become effective in accordance with the terms and
provisions of the Reorganization Agreement, and (ii) the date of termination of
the Reorganization Agreement in accordance with its terms. This Irrevocable
Proxy shall terminate on the Expiration Date.
The attorneys and proxies named above, and each of them are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and
deliver written consents pursuant to the Washington Business Corporation Act),
at every annual, special or adjourned meeting of the shareholders of Company and
in every written consent in lieu of such meeting as follows:
9
[X] In favor of approval of the Merger and the Reorganization
Agreement, in favor of any matter that could reasonably be
expected to facilitate the Merger and against any proposal
for any recapitalization, merger, sale of assets or other
business combination (other than the Merger) between
Company and any person or entity other than Parent and
Merger Sub.
The attorneys and proxies named above may not exercise this
Irrevocable Proxy on any other matter except as provided above. The undersigned
shareholder may vote the Shares on all other matters.
All authority herein conferred shall survive the death or
incapacity of the undersigned and any obligation of the undersigned hereunder
shall be binding upon the heirs, personal representatives, successors and
assigns of the undersigned.
[Signature page follows.]
10
This Irrevocable Proxy is coupled with an interest as aforesaid
and is irrevocable.
Dated: ___________, 2000
----------------------------------------
(Signature of Shareholder)
----------------------------------------
(Print Name of Shareholder)
Shares beneficially owned:
_________ shares of Company Common Stock
11
EXHIBIT C
ASSET PURCHASE AGREEMENT
PROVIDED UNDER SEPARATE COVER