EXHIBIT D
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of November 18, 1999, by
and between Worldtalk Communications Corporation, a Delaware corporation
("Company"), and [Stockholder] ("Stockholder").
WITNESSETH:
WHEREAS, immediately prior to the execution of this Agreement,
Tumbleweed Communications Corp., a Delaware corporation ("Parent"), Keyhole
Acquisition Corp., a Delaware corporation and a direct wholly owned
subsidiary of Parent ("Sub") and the Company have entered into an Agreement
and Plan of Merger of even date herewith (the "Merger Agreement"), pursuant
to which the parties thereto have agreed, upon the terms and subject to the
conditions set forth therein, to merge Sub with and into the Company (the
"Merger"); and
WHEREAS, as of the date hereof, Stockholder is the record and
Beneficial Owner (as defined hereinafter) of _________ Existing Shares (as
defined hereinafter) of the common stock, $0.001 par value, of Parent (the
"Parent Common Stock"); and
WHEREAS, as inducement and a condition to entering into the Merger
Agreement, the Company has required Stockholder to agree, and Stockholder
has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
Section 1. Certain Definitions. In addition to the terms defined
elsewhere herein, capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Merger Agreement. For purposes
of this Agreement:
(a) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities as
determined pursuant to Rule 13d-3 under the Securities Exchange Act of
1934, as amended (the "Exchange Act"). Without duplicative counting of the
same securities by the same holder, securities Beneficially Owned by a
person include securities Beneficially Owned by all other persons with whom
such person would constitute a "group" within the meaning of Section 13(d)
of the Exchange Act with respect to the securities of the same issuer.
(b) "Existing Shares" means shares of the Parent Common Stock
Beneficially Owned by Stockholder as of the date hereof.
(c) "Securities" means the Existing Shares together with any shares of
the Parent Common Stock or other securities of the Company acquired by
Stockholder in any capacity after the date hereof and prior to the
termination of this Agreement whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or
exchangeable securities, or by means of purchase, dividend, distribution,
split-up, recapitalization, combination, exchange of shares or the like,
gift, bequest, inheritance or as a successor in interest in any capacity or
otherwise.
Section 2. Representations And Warranties of Stockholder. Stockholder
represents and warrants to Parent and Sub as follows:
(a) Ownership of Shares. Stockholder is the sole record and Beneficial
Owner of (i) the Existing Shares, (ii) options to purchase [_____] shares
of Parent Common Stock and (iii) warrants to purchase [_____] shares of
Parent Common Stock. On the date hereof, the Existing Shares constitute all
of the shares of the Parent Common Stock owned of record or Beneficially
Owned by Stockholder. There are no outstanding options or other rights to
acquire from Stockholder or obligations of Stockholder to sell or to
acquire, any shares of the Parent Common Stock. Stockholder has sole voting
power and sole power to issue instructions with respect to the matters set
forth in Sections 5, 7 and 8 hereof, sole power of disposition, sole power
of conversion, sole power to demand appraisal rights and sole power to
agree to all of the matters set forth in this Agreement, in each case with
respect to all of the Existing Shares with no limitations, qualifications
or restrictions on such rights, subject to applicable securities laws and
the terms of this Agreement.
(b) Power; Binding Agreement. Stockholder has the legal capacity,
power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance
with its terms except that (i) such enforcement may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereafter
in effect, affecting creditors' rights generally, and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the
court before which any proceeding therefor may be brought.
(c) No Conflicts. Except as contemplated by the Merger Agreement, no
filing with, and no permit, authorization, consent or approval of, any
state or federal public body or authority ("Governmental Entity") is
necessary for the execution of this Agreement by Stockholder and the
consummation by Stockholder of the transactions contemplated hereby, none
of the execution and delivery of this Agreement by Stockholder, the
consummation by Stockholder of the transactions contemplated hereby or
compliance by Stockholder with any of the provisions hereof shall (i)
conflict with or result in any breach of any organizational documents
applicable to Stockholder, (ii) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or
provisions of any note, loan agreement, bond, mortgage, indenture, license,
contract, commitment, arrangement, understanding, agreement or other
instrument or obligation of any kind to which Stockholder is a party or by
which Stockholder or any of its properties or assets may be bound, or (iii)
violate any order, writ, injunction, decree, judgment, order, statute, rule
or regulation applicable to Stockholder or any of Stockholder's properties
or assets except, in the case of clauses (ii) and (iii) where the failure
to obtain such permits, authorizations, consents or approvals or to make
such filings, or where such violations, breaches or defaults would not,
individually or in the aggregate, materially impair the ability of
Stockholder or Parent to consummate the transactions contemplated by the
Merger Agreement, this Agreement or by the other Ancillary Agreements.
(d) No Encumbrance. Except as permitted by this Agreement, the
Existing Shares are now and, at all times during the term hereof, and the
Securities will be, held by Stockholder, or by a nominee or custodian for
the benefit of Stockholder, free and clear of all mortgages, claims,
charges, liens, security interests, pledges or options, proxies, voting
trusts or agreements, understandings or arrangements or any other rights
whatsoever ("Encumbrances"), except for any such Encumbrances arising
hereunder.
(e) No Finder's Fees. No broker, investment banker, financial advisor
or other person is entitled to any broker's, finder's, financial adviser's
or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of
Stockholder.
(f) Reliance by the Company. Stockholder understands and acknowledges
that the Company is entering into the Merger Agreement in reliance upon
Stockholder's execution and delivery of this Agreement.
Section 3. Representations And Warranties of the Company. The Company
hereby represents and warrants to Stockholder as follows:
(a) Power; Binding Agreement. The Company has the corporate power and
authority to enter into and perform all of its obligations under this
Agreement. This Agreement has been duly and validly executed and delivered
by the Company and constitutes a valid and binding agreement of the
Company, enforceable against the Company in accordance with its terms,
except that (i) such enforcement may be subject to applicable bankruptcy,
insolvency or other similar laws, now or hereafter in effect, affecting
creditors' rights generally, and (ii) the remedy of specific performance
and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
(b) No Conflicts. Except as contemplated by the Merger Agreement, no
filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by the
Company and the consummation by the Company of the transactions
contemplated hereby, and none of the execution and delivery of this
Agreement by the Company, the consummation by the Company of the
transactions contemplated hereby or compliance by the Company with any of
the provisions hereof shall (i) conflict with or result in any breach of
any provision of the certificate of incorporation or by-laws or similar
organizational documents of the Company or of any of its Subsidiaries, (ii)
require any filing with, or permit, authorization, consent or approval of,
any Governmental Entity, (iii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default
(or give rise to any right of termination, amendment, cancellation or
acceleration or result in the creation of any lien) under, any of the
terms, conditions or provisions of any Company Agreement or (iv) violate
any order, writ, injunction, decree, statute, rule or regulation applicable
to the Company, any of its Subsidiaries or any of their properties or
assets, except in the case of clause (ii), (iii) or (iv) where the failure
to obtain such permits, authorizations, consents or approvals or to make
such filings, or where such violations, breaches or defaults would not,
individually or in the aggregate, have a material adverse effect on the
Company and its Subsidiaries, taken as a whole, and will not materially
impair the ability of the Company to consummate the transactions
contemplated the Merger Agreement, this Agreement or by the other Ancillary
Agreements.
Section 4. Disclosure. Stockholder hereby agrees to permit the Company
to publish and disclose in the Registration Statement and the Proxy
Statement/Prospectus (including all documents and schedules filed with the
Securities and Exchange Commission), and any press release or other
disclosure document which the Company, in its sole discretion, determines
to be necessary or desirable in connection with the Merger and any
transactions related thereto, Stockholder's identity and ownership of the
Parent Common Stock and the nature of Stockholder's commitments,
arrangements and understandings under this Agreement.
Section 5. Transfer And Other Restrictions. Prior to the termination
of this Agreement, Stockholder agrees not to, directly or indirectly:
(i) except pursuant to the terms of the Merger
Agreement, offer for sale, sell, transfer, tender, pledge,
encumber, assign or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with
respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of
any or all of the Securities or any interest therein except as
provided in Section 6 hereof;
(ii) grant any proxy, power of attorney, deposit any of
the Securities into a voting trust or enter into a voting
agreement or arrangement with respect to the Securities except
as provided in this Agreement; or
(iii) take any other action that would make any
representation or warranty of Stockholder contained herein
untrue or incorrect or have the effect of preventing or
disabling Stockholder from performing its obligations under
this Agreement.
Section 6. Voting of the Parent Common Stock. Stockholder
hereby agrees that, during the period commencing on the date hereof and
continuing until the first to occur of (a) the Effective Time or (b)
termination of this Agreement in accordance with its terms, (i) Stockholder
will not sell or transfer any Securities or any interest therein to any
person, and (ii) at any meeting (whether annual or special and whether or
not an adjourned or postponed meeting) of the holders of the Parent Common
Stock, however called, or in connection with any written consent of the
holders of the Parent Common Stock, Stockholder will appear at the meeting
or otherwise cause the Securities to be counted as present thereat for
purposes of establishing a quorum and vote or consent (or cause to be voted
or consented) the Securities:
(A) in favor of the adoption of the Merger Agreement and the
approval of other actions contemplated by the Merger Agreement
and this Agreement and any actions required in furtherance
thereof and hereof;
(B) against any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty
or any other obligation or agreement of Parent, or Sub under the
Merger Agreement or this Agreement; and
Stockholder may not enter into any agreement or understanding
with any person the effect of which would be inconsistent with or violative
of any provision contained in this Section 6.
Section 7. Proxy.
(a) Stockholder hereby irrevocably grants to, and appoints, the
Company and Xxxx Xxxxx, Xxxxx X. Xxxxxx, or any of them in their respective
capacities as officers of the Company and any individual who shall
hereafter succeed to any such office of the Company and each of them
individually, such Stockholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of
Stockholder, to vote the Securities, or grant a consent or approval in
respect of the Securities, in connection with any meeting of the
stockholders of Parent, as specified in Section 6 hereof.
(b) Stockholder represents that any proxies heretofore given in
respect of the Existing Shares are not irrevocable, and that such proxies
are hereby revoked.
(c) Stockholder understands and acknowledges that the Company
is entering into the Merger Agreement in reliance upon such Stockholder's
execution and delivery of this Agreement. Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 7 is given in connection
with the execution of the Merger Agreement, and that such irrevocable proxy
is given to secure the performance of the duties of Stockholder under this
Agreement. Stockholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may not be revoked under any circumstances.
Stockholder hereby ratifies and confirms all that such irrevocable proxy
may lawfully do or cause to be done by virtue hereof. Such
irrevocable proxy is executed and intended to be irrevocable in accordance
with the provisions of section 212(e) of Delaware General Corporation Law.
Section 8. Stop Transfer; Legend.
(a) Stockholder agrees with, and covenants to, the Company that
Stockholder will not request that Parent register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing
any of the Securities, unless such transfer is made in compliance with this
Agreement.
(b) In the event of a stock dividend or distribution, or any
change in the Parent Common Stock by reason of any stock dividend,
split-up, recapitalization, combination, exchange of share or the like
other than pursuant to the Merger, the term "Existing Shares" will be
deemed to refer to and include the shares of the Parent Common Stock as
well as all such stock dividends and distributions and any shares into
which or for which any or all of the Securities may be changed or exchanged
and appropriate adjustments shall be made to the terms and provisions of
this Agreement.
(c) Stockholder will promptly after the date hereof surrender
to Parent all certificates representing the Securities, Parent will place
the following legend on such certificates in addition to any other legend
required thereof:
"THE SECURITIES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
RESTRICTIONS ON TRANSFER PURSUANT TO AND OTHER PROVISIONS OF A VOTING
AGREEMENT, DATED AS OF NOVEMBER 18, 1999, BY AND BETWEEN [___] AND
[Stockholder]."
Section 9. Reasonable Best Efforts. Subject to the terms and
conditions of this Agreement, each of the parties hereto agrees to use its
reasonable best efforts to take, or cause to be taken, all actions, and to
do, or cause to be done, all things necessary, proper or advisable under
applicable laws and regulations to consummate and make effective the
transactions contemplated by this Agreement and the Merger Agreement. Each
party shall promptly consult with the other and provide any necessary
information and material with respect to all filings made by such party
with any Governmental Entity in connection with this Agreement and the
Merger Agreement and the transactions contemplated hereby and thereby.
Section 10. Termination. This Agreement shall terminate on the
earliest of (a) termination of the Merger Agreement pursuant to Section
7.1(a), (b), (d) or (f) thereof, (b) six months following the termination
of the Merger Agreement pursuant to Section 7.1(c) or (e) thereof, (c) the
agreement of the parties hereto to terminate this Agreement, or (d) the
consummation of the Merger.
Section 11. Miscellaneous.
(a) Entire Agreement. This Agreement (including the documents
and instruments referred to herein) constitutes the entire agreement and
supersedes all other prior agreements and understandings, both written and
oral, among the parties, or any of them, with respect to the subject matter
hereof.
(b) Successors and Assigns. This Agreement shall not be
assigned by operation of law or otherwise without the prior written consent
of the other parties hereto. This Agreement shall be binding upon, inure to
the benefit of and be enforceable by each party and such party's respective
heirs, beneficiaries, executors, representatives and permitted assigns.
(c) Amendment and Modification. This Agreement may not be
amended, altered, supplemented or otherwise modified or terminated except
upon the execution and delivery of a written agreement executed by the
parties hereto.
(d) Notices. All notices and other communications hereunder
shall be in writing and shall be deemed given if delivered personally,
telecopied (which is confirmed) or sent by an overnight courier service,
such as FedEx, to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
If to the Company, to:
Tumbleweed Communications Corp.
000 Xxxxxxx Xxxxx
Xxxxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
with a copy to:
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
000 Xxxxxxxxxx Xxxxxx - Xxxxx 000
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxx
Telephone No.: 000-000-0000
Facsimile No.: 000-000-0000
If to Stockholder, to:
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with a copy to:
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(e) Severability. Any term or provision of this Agreement which
is held to be invalid, illegal or unenforceable in any respect in any
jurisdiction shall, as to that jurisdiction, be ineffective to the extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remaining terms and provisions of this Agreement or
affecting the validity or enforceability of any of the terms or provisions
of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
(f) Specific Performance. Each of the parties hereto recognizes
and acknowledges a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it
would not have an adequate remedy at law for money, damages, and therefore
in the event of any such breach the aggrieved party shall be entitled to
the remedy of specified performance of such covenants and agreements and
injunctive and other equitable relief in addition to any other remedy to
which it may be entitled, at law or in equity.
(g) No Waiver. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available
in respect hereof at law or in equity, or to insist upon compliance by any
other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, will not
constitute a waiver by such party of its right to exercise any such or
other right, power or remedy or to demand such compliance.
(h) No Third Party Beneficiaries. This Agreement is not intended
to confer upon any person other than the parties hereto any rights or
remedies hereunder.
(i) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without
giving effect to the principles of conflict of law thereof.
(j) Descriptive Heading. The descriptive headings used herein
are for reference purposes only and will not affect in any way the meaning
or interpretation of this Agreement.
(k) Expenses. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid
by the party incurring such expenses.
(l) Further Assurances. From time to time, at any other party's
request and without further consideration, each party hereto shall execute
and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective,
in the most expeditious manner practicable, the transactions contemplated
by this Agreement.
(m) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but all of
which together shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Company and Stockholder have caused
this Agreement to be duly executed as of the day and year first written
above.
Worldtalk Communications Corporation
By: ____________________________
Name: [Xxxxx Xxxxxx]
Title: [Vice President, CFO]
Keyhole Acquisition Corp.
By: ____________________________
Name: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
By: ____________________________
[Stockholder]*
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* In the event this agreement covers shares held jointly or held
individually by related parties who will sign this together, each joint or
related party shall sign.
