Exhibit 99.1
EXHIBIT A
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
February 4, 2004 by and among Hewlett-Packard Company, a Delaware corporation
("Parent"), and the undersigned stockholder ("Stockholder") of Novadigm, Inc., a
Delaware corporation (the "Company"), and, solely for purposes of assuming its
obligations set forth in Sections 11 below, the Company.
RECITALS
A. As an inducement for Parent to enter into that certain Agreement and
Plan of Merger by and among Parent, Norton Acquisition Corporation, a Delaware
corporation and direct wholly-owned subsidiary of Parent ("Merger Sub"), and the
Company (the "Merger Agreement"), which provides for the merger of Merger Sub
with and into the Company (the "Merger"), Parent has requested that Stockholder
execute and deliver this Agreement. Capitalized terms not defined herein shall
have the meanings set forth in the Merger Agreement.
B. Pursuant to the Merger, all of the issued and outstanding shares of
capital stock of the Company will be converted into the right to receive the
consideration set forth therein, all upon the terms and subject to the
conditions set forth in the Merger Agreement.
C. Stockholder is the beneficial owner (as defined in Rule 13d-3
promulgated under the Securities Exchange Act of 1934, as amended (the "Exchange
Act")) of the number of shares of outstanding capital stock of the Company and
other securities convertible into, or exercisable or exchangeable for, shares of
the capital stock of the Company, all as set forth on the signature page of this
Agreement (collectively, the "Shares").
D. As an inducement for Parent to enter into the Merger Agreement,
Stockholder, Parent and the Company are entering into this Agreement.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Agreement to Retain Shares.
(a) Transfer and Encumbrance. Stockholder agrees, during the period
beginning on the date hereof and ending on the Expiration Date (as defined
below), not to transfer, sell, exchange, pledge or otherwise dispose of or
encumber (collectively, "Transfer") any of the Shares or any New Shares (as
defined in Section 1(b) hereof), or to discuss, negotiate, or make any offer or
agreement relating thereto, other than to or with Parent, in each case without
the prior written consent of Parent. Parent will not withhold its consent to the
transfer of any or all of the Shares or New Shares (as defined below) during the
Stockholder's lifetime by gift to, or on the Stockholder's death by will or
intestacy to, the Stockholder's "immediate family" (as defined below) or to a
trust for the benefit of the Stockholder or the Stockholder's immediate family
or to a charitable organization; provided, that each transferee or other
recipient agrees in a writing satisfactory to the Parent that the provisions of
this Agreement will continue to apply to the transferred Shares or New Shares in
the hands of such transferee or other recipient
and each transferee or other recipient executes and delivers to Parent a voting
agreement and irrevocable proxy in form satisfactory to Parent for the purpose
thereof. As used herein, the term "immediate family" shall mean the
Stockholder's spouse, lineal descendant or antecedent, brother or sister,
adopted child or grandchild, or the spouse of any child, adopted child,
grandchild or adopted grandchild of the Stockholder. Stockholder acknowledges
that the intent of this paragraph is to ensure that Parent retains the right
under the Proxy (as defined in Section 3 hereof) to vote the Shares and any New
Shares in accordance with the terms of the Proxy. As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) the Effective Time and
(ii) the date the Merger Agreement shall have been validly terminated pursuant
to Article VII thereof.
(b) New Shares. Stockholder agrees that any shares of capital stock
of the Company that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership after the date of this Agreement and
prior to the Expiration Date, including, without limitation, shares issued or
issuable upon the conversion, exercise or exchange, as the case may be, of all
securities held by Stockholder that are convertible into, or exercisable or
exchangeable for, shares of capital stock of the Company ("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. 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, Stockholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy (as defined in Section 3 hereof), the outstanding
Shares and any outstanding New Shares:
(i) in favor of approval of the Merger, the adoption and
execution and delivery by the Company of the Merger Agreement and in favor of
each of the other actions contemplated by the Merger Agreement and any action
required in furtherance thereof;
(ii) against approval of any proposal made in opposition to,
or in competition with, the Merger Agreement or the consummation of the Merger;
and
(iii) against any of the following actions (other than those
actions that relate to the Merger and the transactions contemplated by the
Merger Agreement): (A) any merger, consolidation, business combination, sale of
assets, reorganization or recapitalization of the Company with any party, (B)
any sale, lease or transfer of any significant part of the assets or capital
stock of the Company, (C) any reorganization, recapitalization, dissolution,
liquidation or winding up of the Company, (D) any material change in the
capitalization of the Company or the Company's corporate structure, or (E) any
other action that is intended, or could reasonably be expected to, impede,
interfere with, delay, postpone, discourage or adversely affect the Merger or
any of the other transactions contemplated by the Merger Agreement.
Prior to the Expiration Date, Stockholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with this Section 2. Notwithstanding anything to the
contrary herein, Stockholder shall not be required to
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acquire any Shares or New Shares that Stockholder has the right to acquire,
including by exercise of stock options.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder has delivered to Parent an irrevocable proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest
extent permitted by applicable law, covering the Shares and New Shares as set
forth therein.
4. Representations and Warranties of Stockholder. Stockholder represents,
warrants and covenants to Parent as follows:
(i) Stockholder is the beneficial owner of the Shares, with
full power to vote or direct the voting of the Shares for and on behalf of all
beneficial owners of the Shares.
(ii) As of the date hereof the Shares are, and at all times up
until the Expiration Date the Shares will be, free and clear of any rights of
first refusal, co-sale rights, security interests, liens, pledges, claims,
options, charges or other encumbrances.
(iii) Stockholder does not beneficially own any shares of
capital stock of the Company other than the Shares.
(iv) Stockholder has full power and authority to make, enter
into and carry out the terms of this Agreement and the Proxy.
5. Additional Documents. Stockholder hereby covenants and agrees to
execute and deliver any additional documents reasonably necessary or desirable
to carry out the
purpose and intent of this Agreement and the Merger Agreement.
6. Consents and Waivers. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which Stockholder is a party or pursuant to any rights
Stockholder may have.
7. No Appraisal Rights. Stockholder agrees not to exercise any rights
(including, without limitation, under Section 262 of the Delaware General
Corporation Law) to demand appraisal of the Shares or any New Shares, that may
arise with respect to the Merger.
8. No Solicitation. Until the Expiration Date, Stockholder shall not, in
his capacity as a stockholder of the Company, directly or indirectly, take, or
cause the Company to take, any of the following actions with any party other
than Parent and its designees (except to the extent specifically permitted
pursuant to Section 5.3(d) of the Merger Agreement): (a) solicit, initiate,
encourage, or knowingly facilitate or induce any inquiry with respect to, or the
making, submission or announcement of, any Acquisition Proposal (as defined in
Section 5.3(g) of the Merger Agreement), (b) participate in any discussions
(except as to confirm the existence of the restrictions set forth in this
Section 8) or negotiations regarding, or furnish to any person any information
with respect to, or take any other action intended to facilitate any inquiries
or the making of any proposal that constitutes or may reasonably be expected to
lead to, any Acquisition Proposal, (c) approve, endorse or recommend any
Acquisition Proposal (except to the extent specifically permitted pursuant to
Section 5.3(d) of the Merger Agreement), or
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(d) enter into any letter of intent or similar document or any contract,
agreement or commitment contemplating or otherwise relating to any Acquisition
Proposal or transaction contemplated thereby. In the event that Stockholder
shall receive, prior to the Expiration Date, any offer, proposal, or request,
directly or indirectly, of the type referenced in clauses (a) through (d) above
concerning the Company, Stockholder shall (x) immediately suspend any
discussions with such offeror or party with regard to such offers, proposals or
requests, except to the extent such action is permitted pursuant to Section
5.3(d) of the Merger Agreement, and (y) notify Parent thereof as promptly as
reasonably practicable (and in any event within 24 hours), including information
as to the identity of the offeror or the party making any such offer or proposal
and the specific terms of such offer or proposal, as the case may be, and such
other information related thereto as Parent may reasonably request.
9. Stockholder Capacity. Notwithstanding anything to the contrary herein,
Stockholder is only executing this Agreement in his capacity as the beneficial
owner of the Shares and any New Shares and is not making any agreement hereunder
in his capacity as a director of the Company, and the agreements herein shall in
no way restrict Stockholder in his exercise of his fiduciary duties as a
director of the Company.
10. 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; provided, however, that notwithstanding the foregoing, the
provisions in Section 12 hereof shall survive in full force and effect following
the consummation of the Merger.
11. Legending of Shares; Company Covenant. (a) If so requested by Parent,
Stockholder agrees that the Shares and any New Shares shall bear a legend
stating that they are subject to this Agreement and to an irrevocable proxy.
Subject to the terms of Section 1 hereof, Stockholder agrees that Stockholder
will not Transfer the Shares or any New Shares without first having the
aforementioned legend affixed to the certificates representing the Shares or any
New Shares. The Company agrees to affix a legend to the certificates
representing the Shares (upon a request for the Transfer of such Shares) and any
New Shares (upon issuance) stating that such Shares or New Shares are subject to
this Agreement and to an irrevocable proxy. The Company further agrees to make a
notation on its records and give instructions to its transfer agent(s) for the
Shares and any New Shares in order to implement the restrictions set forth in
this Agreement.
(b) The Company agrees not to engage in any action or omit to take
any action that would have the effect of preventing or disabling Stockholder
from performing its obligations under this Agreement.
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12. Miscellaneous.
(a) 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:
(i) If to Parent, to:
Hewlett-Packard Company
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxx, Esq.
Xxxxx X. Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
(ii) If to Stockholder, to the address set forth on the
signature page hereto.
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxx X. Xxxx, Esq.
Facsimile No.: (000) 000-0000
(b) Interpretation. The words "include," "includes" and "including"
when used herein shall be deemed in each case to be followed by the words
"without limitation." The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(c) Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when
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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.
(d) Entire Agreement; Assignment. This Agreement and the
documents and instruments and other agreements among the parties hereto
referenced herein: (i) constitute the entire agreement among the parties with
respect to the subject matter hereof and supersede all prior agreements,
understandings, representations and conditions, both written and oral, among the
parties with respect to the subject matter hereof, (ii) are not intended to
confer upon any other person any rights or remedies hereunder and (iii) shall
not be assigned by operation of law or otherwise.
(e) 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 extent possible, the
economic, business and other purposes of such void or unenforceable provision.
(f) Other Remedies; Specific Performance.
(i) Other Remedies. Any and all remedies herein expressly
conferred upon a party will be deemed cumulative with and not exclusive of any
other remedy conferred hereby, or by law or equity upon such party, and the
exercise by a party of any one remedy will not preclude the exercise of any
other remedy. 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.
(ii) Specific Performance. 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.
(g) Governing Law. EXCEPT AS OTHERWISE PROVIDED HEREIN, ALL
QUESTIONS AND/OR DISPUTES CONCERNING THE CONSTRUCTION, VALIDITY AND
INTERPRETATION OF THIS AGREEMENT AND THE TRANSACTIONS CONTEMPLATED HEREBY SHALL
BE GOVERNED BY THE INTERNAL LAWS, AND NOT THE LAW OF CONFLICTS, OF THE STATE OF
DELAWARE. BY ACCEPTANCE OF CONSIDERATION SPECIFIED HEREIN, PARTICIPANT HEREBY
IRREVOCABLY AND UNCONDITIONALLY AGREES TO BE SUBJECT TO, AND HEREBY CONSENTS AND
SUBMITS TO, THE JURISDICTION OF THE COURTS OF THE STATE OF DELAWARE AND AGREES
THAT ANY ACTION INVOLVING ANY EQUITABLE OR OTHER CLAIM SHALL BE BROUGHT
EXCLUSIVELY IN THE DELAWARE COURT OF CHANCERY. IN THE EVENT THAT THE DELAWARE
COURT OF CHANCERY DOES NOT ACCEPT JURISDICTION OVER ANY SUCH ACTION,
PARTICIPANT, BY
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ACCEPTANCE OF CONSIDERATION SPECIFIED HEREIN, HEREBY IRREVOCABLY AND
UNCONDITIONALLY AGREES THAT ANY SUCH ACTION THEN SHALL BE BROUGHT EXCLUSIVELY IN
THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE.
(h) Amendments 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.
(i) Waiver. No waiver by any party hereto of any condition or of any
breach of any provision of this Agreement shall be effective unless in writing.
(j) Fees and Expenses. Except as otherwise provided in the Merger
Agreement, all costs and expenses incurred in connection with this Agreement and
the transactions contemplated hereby shall be borne by the party incurring such
expenses.
(k) Further Assurances. Each party hereto shall perform such further
acts and execute such further documents as may reasonably be required to carry
out the provisions of this Agreement, including, without limitation, using
commercially reasonable efforts to obtain all necessary consents, approvals or
waivers under the HSR Act.
(l) Attorneys' Fees and Expenses. If any action or other proceeding
relating to the enforcement of any provision of this Agreement is brought by
either party, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
(m) WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO 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 ANY PARTY HERETO IN NEGOTIATION,
ADMINISTRATION, PERFORMANCE OR ENFORCEMENT HEREOF.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
HEWLETT-PACKARD COMPANY STOCKHOLDER
By:
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Name: Signature
Title:
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Print Name
NOVADIGM, INC. Address:
(SOLELY FOR PURPOSES OF
SECTIONS 11 HEREOF)
By:
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Name:
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Title:
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Company Capital Stock:
Common Stock:
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Options:
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[Signature Page to Voting Agreement]
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of Novadigm, Inc., a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints the officers of Hewlett-Packard Company, a Delaware
corporation ("Parent"), and each of them individually, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting rights, consents and similar
rights of the undersigned (to the fullest extent that the undersigned is
entitled to do so) with respect to all of the outstanding shares of capital
stock of the Company that now are or hereafter may be beneficially owned by the
undersigned, and any and all other shares or securities of the Company issued or
issuable in respect thereof on or after the date hereof (collectively, the
"Shares"), in accordance with the terms of this Proxy. The Shares beneficially
owned by the undersigned as of the date of this Proxy are listed on the final
page of this Proxy, along with the number(s) of the share certificate(s) that
represent such Shares. Upon the undersigned's execution of this Proxy, any and
all prior proxies given by each 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 Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement dated as of February 4, 2004 by and among Parent, the Company and the
Stockholder (the "Voting Agreement"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger (the "Merger
Agreement"), by and among Parent, Norton Acquisition Corporation, a Delaware
corporation and direct wholly-owned subsidiary of Parent ("Merger Sub"), and the
Company. The Merger Agreement provides for the merger of Merger Sub with and
into the Company in accordance with its terms (the "Merger") pursuant to which
Stockholder would receive a portion of the proceeds of the Merger. As used in
this Irrevocable Proxy, the term "Expiration Date" shall mean the earlier to
occur of (i) the date that the Merger shall become effective in accordance with
the terms and provisions of the Merger Agreement and (ii) the date the Merger
Agreement shall have been validly terminated pursuant to Article VII thereof.
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, consent and similar 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 the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger, the adoption and execution and
delivery by the Company of the Merger Agreement and in favor of each of the
other actions contemplated by the Merger Agreement and any action required in
furtherance thereof;
(ii) against approval of any proposal made in opposition to, or in
competition with, the Merger Agreement or the consummation of the Merger; and
(iii) against any of the following actions (other than those actions that
relate to the Merger and the transactions contemplated by the Merger Agreement):
(A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company with any party, (B) any sale,
lease or transfer of any significant part of the assets or capital stock of the
Company, (C) any reorganization, recapitalization, dissolution, liquidation or
winding up of the Company, (D) any material change in the capitalization of the
Company or the Company's corporate structure, or (E) any other action that is
intended, or could reasonably be expected to, impede, interfere with, delay,
postpone, discourage or adversely affect the 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 in clauses (i), (ii) and (iii) above. The
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.
[Remainder of Page Intentionally Left Blank]
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This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: February 4, 2004
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Signature
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Print Name
Address:
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Company Capital Stock:
Common Stock:
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Options:
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[Signature Page to Proxy]
