Exhibit 2
STOCKHOLDER SUPPORT AGREEMENT
This Stockholder Support Agreement ("Agreement") is made and entered into
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as of August 16, 2001, among Palm, Inc., a Delaware corporation ("Parent"), ECA
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Subsidiary Acquisition Corporation, a Delaware corporation and an indirect
wholly owned subsidiary of Parent ("Buyer") and the undersigned stockholder (the
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"Stockholder") of Be Incorporated, a Delaware corporation ("Seller").
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RECITALS
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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
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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").
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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
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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
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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
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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
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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
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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
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(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"
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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.
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2.1 Transferee of Securities to be Bound by this Agreement. The
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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.
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2.2 Transfer of Voting Rights. The Stockholder hereby agrees that, at
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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
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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
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Shares:
(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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(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) 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.
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4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
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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
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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
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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,
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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
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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
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Stockholder hereunder and thereunder shall terminate and be of no further force
or effect as of the Expiration Date.
8. Miscellaneous.
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8.1 Waiver. No waiver by any party hereto of any condition or any
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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
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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
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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
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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
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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,
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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
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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
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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.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: General Counsel
Tel.: (000) 000-0000
Fax: (000) 000-0000
with a copy to:
Palm, Inc.
0000 Xxxxx Xxxxxxx Xxxxxxx
Xxxxx Xxxxx, XX 00000
Attention: General Counsel
Tel.: (000) 000-0000
Fax: (000) 000-0000
and a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxxx Xxxxxxx
Xxxxx Xxxxxx
Tel.: (000) 000-0000
Fax: (000) 000-0000
(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
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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
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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
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convenience only and shall not affect the construction or interpretation of this
Agreement.
[Remainder of Page Intentionally Left Blank]
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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 outstanding options,
warrants or other rights held on the
date hereof
Address:
____________________________________
____________________________________
****SUPPORT AGREEMENT****
EXHIBIT A
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IRREVOCABLE PROXY
The undersigned stockholder of Be Incorporated, a Delaware corporation (the
"Seller"), hereby irrevocably (to the fullest extent permitted by law) appoints
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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
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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
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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
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Agreement"), and is granted in consideration of Buyer entering into that certain
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Asset Purchase Agreement (the "Asset Agreement"), of even date herewith, by and
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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 Parent, the assumption of
certain liabilities relating to the Operating Systems and other consideration
(the "Transaction"). As used herein, the term "Expiration Date" shall mean the
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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:______________________
________________
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________________ _____________ shares of
Seller Common Stock owned of record on
the date hereof
****IRREVOCABLE PROXY****
