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EXHIBIT 99.3
STORAGE DIMENSIONS, INC.
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of December 22, 1997 by and
between STORAGE DIMENSIONS, INC., a Delaware corporation ("Parent"), and
_________ ("Shareholder").
RECITALS
A. ARTECON, INC., a California corporation ("Company"), STORAGE
ACQUISITION CORP. a California corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), and Parent are entering into an Agreement and Plan of
Merger and Reorganization of even date herewith (as amended from time to time,
the "Reorganization Agreement"; capitalized terms used but not otherwise defined
in this Voting Agreement have the meanings assigned to such terms in the
Reorganization Agreement), which provides (subject to the conditions set forth
therein) for the merger of Merger Sub into the Company (the "Merger").
B. As a condition to the willingness of Parent and Merger Sub to enter
into the Reorganization Agreement, Parent and Merger Sub have required that
Shareholder agree, and in order to induce Parent and Merger Sub to enter into
the Reorganization Agreement Shareholder has agreed, to enter into this Voting
Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. NO TRANSFER OF SUBJECT SHARES
1.1 SUBJECT SHARES. "Subject Shares" shall mean: (i) all securities of
the Company (including shares of Company Common Stock and all options, warrants
and other rights to acquire shares of Company Common Stock) Owned by Shareholder
as of the date of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Common Stock and all
additional options, warrants and other rights to acquire shares of Company
Common Stock) of which Shareholder acquires Ownership during the period from the
date of this Agreement through the Expiration Date (as defined below). For
purposes of the foregoing sentence, Shareholder shall be deemed to "Own" or to
have acquired "Ownership" of a security if Shareholder: (i) is the record
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owner of such security; or (ii) is the "beneficial owner" (within the meaning of
Rule 13d-3 under the Exchange Act) of such security.
1.2 NO DISPOSITION OR ENCUMBRANCE OF SUBJECT SHARES.
(a) Shareholder hereby covenants and agrees that prior to the
Expiration Date (as defined below), Shareholder will not, directly or
indirectly, (i) offer, sell, offer to sell, contract to sell, pledge, grant any
option to purchase or otherwise dispose of or transfer (or announce any offer,
sale, offer of sale, contract of sale or grant of any option to purchase or
other disposition or transfer of) any Subject Shares to any Person, (ii) create
or permit to exist any Encumbrance with respect to any of the Subject Shares,
(iii) reduce his beneficial ownership of, interest in or risk relating to any of
the Subject Shares or (iv) commit or agree to do any of the foregoing.
(b) As used in this Voting Agreement, the term "Expiration Date"
shall mean the earlier of the date upon which the Reorganization Agreement is
validly terminated or the date upon which the Merger becomes effective;
provided, however, that the "Expiration Date" shall be the date 180 days
following the date on which the Reorganization Agreement is validly terminated,
if an Identified Termination occurs. For purposes of this Voting Agreement, an
"Identified Termination" shall occur if:
(1) the Reorganization Agreement is validly terminated by Parent
or the Company pursuant to Section 9.1(d) or 9.1(e) of the Reorganization
Agreement at any time after (A) an Acquisition Proposal has been made, submitted
or announced (provided such Acquisition Proposal was not "publicly withdrawn"
prior to the Parent Stockholders' Meeting or the Company Shareholders' Meeting,
as applicable) or (B) the occurrence of a Parent Triggering Event or a Company
Triggering Event (provided, if such Triggering Event is the result of an
Acquisition Proposal, such Acquisition Proposal was not "publicly withdrawn"
prior to the Parent Stockholders' Meeting or the Company Shareholders' Meeting,
as applicable); or
(2) the Reorganization Agreement is validly terminated by Parent
pursuant to Section 9.1(f) of the Reorganization Agreement.
1.3 NO TRANSFER OF VOTING RIGHTS. Shareholder covenants and agrees that,
prior to the Expiration Date, Shareholder will not deposit any of the Subject
Shares into a voting trust or grant another proxy (except as provided herein) or
enter into a voting agreement with respect to any of the Subject Shares.
SECTION 2. VOTING OF SUBJECT SHARES
2.1 PRE-TERMINATION VOTING AGREEMENT. Shareholder hereby agrees that,
prior to the Expiration Date, at any meeting of the shareholders of the Company,
however
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called, and in any written action by consent of shareholders of the Company,
unless otherwise directed in writing by Parent, Shareholder shall vote the
Subject Shares:
(i) in favor of the Merger, the execution and delivery by the
Company of the Reorganization Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by the
Reorganization Agreement and any action required in furtherance hereof and
thereof;
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of the Company in
the Reorganization Agreement; and
(iii) against the following actions (other than the Merger and
the transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any subsidiary of the Company; (B)
any sale, lease or transfer of a material amount of assets of the Company or any
subsidiary of the Company (other than in the ordinary course of business); (C)
any reorganization, recapitalization, dissolution or liquidation of the Company
or any subsidiary of the Company; (D) any change in a majority of the board of
directors of the Company; (E) any amendment to the Company's articles of
incorporation; (F) any material change in the capitalization of the Company or
the Company's corporate structure; or (G) any other action which 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 Reorganization Agreement or this Voting Agreement.
Prior to the Expiration Date, Shareholder shall not enter into any agreement or
understanding with any Person to vote or give instructions in any manner
inconsistent with clause "(i)", "(ii)" or "(iii)" of the preceding sentence.
2.2 POST-TERMINATION VOTING AGREEMENT. If an Identified Termination
occurs, then, prior to the Expiration Date, at any meeting of the shareholders
of the Company, however called, and in any written action by consent of
shareholders of the Company, unless otherwise directed in writing by Parent,
Shareholder shall vote the Subject Shares (i) against any Acquisition Proposal
and any related transaction or agreement and (ii) against any action which is
intended, or could reasonably be expected, to facilitate the consummation of any
Acquisition Transaction. Shareholder shall not enter into any agreement or
understanding with any Person prior to the Expiration Date to vote or give
instructions in any manner inconsistent with clause "(i)" or "(ii)" of the
preceding sentence.
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2.3 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting Agreement,
Shareholder shall deliver to Parent a proxy in the form attached hereto as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law
prior to the Expiration Date, with respect to the Subject Shares (the "Proxy").
(b) Shareholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Parent the power to carry out and give effect to the provisions of this Voting
Agreement.
SECTION 3. WAIVER OF APPRAISAL RIGHTS.
Shareholder hereby waives any rights of appraisal and any dissenters'
rights that Shareholder may have in connection with the Merger.
SECTION 4. NO SOLICITATION
Shareholder covenants and agrees that, during the period commencing on
the date of this Voting Agreement and ending on the Expiration Date, Shareholder
shall not, directly or indirectly, and shall not authorize or permit any
Representative of Shareholder, directly of indirectly, to: (i) solicit,
initiate, encourage or induce the making, submission or announcement of any
Acquisition Proposal or take any action that could reasonably be expected to
lead to an Acquisition Proposal; (ii) furnish any nonpublic information
regarding Company to any Person in connection with or in response to an
Acquisition Proposal or potential Acquisition Proposal; (iii) engage in
discussions with any Person with respect to any Acquisition Proposal; (iv)
approve, endorse or recommend any Acquisition Proposal; or (v) enter into any
letter of intent or other similar document or any Contract contemplating or
otherwise relating to any Acquisition Transaction. The foregoing provision shall
not prevent Shareholder from acting in accordance with Shareholder's fiduciary
duties as a director or officer of Company, provided Shareholder complies with
the provisions of Sections 4.3 and 4.4 of the Reorganization Agreement.
Shareholder shall immediately cease any existing discussions with any Person
that relate to any Acquisition Proposal.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder hereby represents and warrants to Parent as follows:
5.1 DUE AUTHORIZATION, ETC. Shareholder has all requisite power and
capacity to execute and deliver this Voting Agreement and to perform his
obligations hereunder. This Voting Agreement has been duly executed and
delivered by Shareholder and constitutes a legal, valid and binding obligation
of Shareholder, enforceable against
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Shareholder in accordance with its terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
5.2 NO CONFLICTS, REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Voting Agreement by
Shareholder do not, and the performance of this Voting Agreement by Shareholder
will not: (i) conflict with or violate any order, decree or judgment applicable
to Shareholder or by which he or any of his properties is bound or affected; or
(ii) result in any breach of or constitute a default (with notice or lapse of
time, or both) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of an Encumbrance on
the Subject Shares pursuant to, any Contract to which Shareholder is a party or
by which Shareholder or any of his properties is bound or affected.
(b) The execution and delivery of this Voting Agreement by
Shareholder do not, and the performance of this Voting Agreement by Shareholder
will not, require any Consent of any Person.
5.3 TITLE TO SUBJECT SHARES. As of the date hereof, Shareholder Owns in
the aggregate (including shares owned of record and shares owned beneficially)
the number of issued and outstanding shares of Company Common Stock set forth
below Shareholder's name on the signature page hereof, and the number of
options, warrants and other rights to acquire shares of Company Common Stock set
forth below Shareholder's name on the signature page hereof, and does not
directly or indirectly Own, any shares of capital stock of the Company, or any
option, warrant or other right to acquire any shares of capital stock of the
Company, other than the shares and options, warrants and other rights set forth
below Shareholder's name on the signature page hereof.
5.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all material respects as of the date
of the consummation of the Merger as if made on that date.
SECTION 6. COVENANTS OF SHAREHOLDER
6.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Shareholder will execute and deliver, or cause to be executed and
delivered, such additional or further arrangements, proxies, consents and other
instruments as Parent may reasonably request for the purpose of effectively
carrying out and furthering the intent of this Voting Agreement.
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6.2 LEGEND. Immediately after the execution of this Voting Agreement,
Shareholder shall instruct the Company to cause each certificate of Shareholder
evidencing the Subject Shares to bear a legend in the following form:
THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD, EXCHANGED OR
OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE TERMS
AND CONDITIONS OF THE VOTING AGREEMENT DATED AS OF DECEMBER 22, 1997, AS
IT MAY BE AMENDED, EXECUTED BY THE REGISTERED HOLDER OF THIS
CERTIFICATE, A COPY OF WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE
OFFICES OF THE ISSUER.
SECTION 7. MISCELLANEOUS
7.1 NON-SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties and agreements made by Shareholder and Parent in
this Voting Agreement shall promptly terminate upon the Expiration Date.
7.2 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to Parent, Shareholder shall hold harmless and
indemnify Parent from and against any damages suffered or incurred by Parent and
that arise from any breach of any representation, warranty, covenant or
obligation of Shareholder contained herein.
7.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
7.4 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile) to
the address or facsimile telephone number set forth beneath the name of such
party below (or to such other address or facsimile telephone number as such
party shall have specified in a written notice given to the other party hereto):
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if to Shareholder:
at the address set forth below Shareholder's signature on
the signature page hereto;
if to Parent:
Storage Dimensions, Inc.
0000 XxXxxxxx Xxxx.
Xxxxxxxx, XX 00000
Attention: Chief Executive Officer
Facsimile: (000) 000-0000
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
7.5 SEVERABILITY. Any term or provision of this Voting Agreement which
is invalid or unenforceable 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
Voting Agreement or affecting the validity or enforceability of any of the terms
or provisions of this Voting Agreement in any other jurisdiction. If any
provision of this Voting Agreement is so broad as to be unenforceable, the
provision shall be interpreted to be only so broad as is enforceable.
7.6 ENTIRE AGREEMENT. This Voting Agreement and any documents delivered
by the parties in connection herewith constitute the entire agreement between
the parties with respect to the subject matter hereof and thereof and supersede
all prior agreements and understandings between the parties with respect
thereto. No addition to or modification of any provision of this Voting
Agreement shall be binding upon either party hereto unless made in writing and
signed by both parties hereto. The parties hereto waive trial by jury in any
action at law or suit in equity based upon, or arising out of, this Voting
Agreement or the subject matter hereof.
7.7 ASSIGNMENT, BINDING EFFECT. Neither this Voting Agreement nor any
portion hereof shall be assignable (whether by operation of law or otherwise and
including, for this purpose, a change in control as an assignment). Subject to
the preceding sentence, this Voting Agreement shall be binding upon and shall
inure to the benefit of (i) Shareholder and his heirs, successors and assigns
and (ii) Parent and its
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successors and assigns. Notwithstanding anything contained in this Voting
Agreement to the contrary, nothing in this Voting Agreement, expressed or
implied, is intended to confer on any Person other than the parties hereto or
their respective heirs, successors and assigns any rights, remedies, obligations
or liabilities under or by reason of this Voting Agreement.
7.8 SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Voting
Agreement was not performed in accordance with its specific terms or was
otherwise breached. It is accordingly agreed that Parent shall be entitled to an
injunction or injunctions to prevent breaches of this Voting Agreement and to
enforce specifically the terms and provisions hereof, this being in addition to
any other remedy to which Parent is entitled at law or in equity.
7.9 OTHER AGREEMENTS. Nothing in this Voting Agreement shall limit any
of the rights or remedies of Parent or any of the obligations of Shareholder
under any Affiliate Agreement between Parent and Shareholder or any other
agreement.
7.10 GOVERNING LAW. This Voting Agreement shall be governed in all
respects by the laws of the State of California, as applied to contracts entered
into and to be performed entirely within the State of California.
7.11 COUNTERPARTS. This Voting Agreement may be executed by the parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts shall together constitute one
and the same instrument.
7.12 CONSTRUCTION.
(a) Headings of the Sections of this Voting Agreement are for the
convenience of the parties only, and shall be given no substantive or
interpretive effect whatsoever.
(b) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(c) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Voting Agreement.
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(d) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(e) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
[The remainder of this page is intentionally left blank.]
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Voting
Agreement to be executed as of the date first written above.
STORAGE DIMENSIONS, INC.
By: ____________________________________
Name:
Title:
SHAREHOLDER:
________________________________________
Name:
Address: _____________________________
_____________________________
_____________________________
Facsimile:
Number of issued and outstanding
shares of Company Common Stock
owned of record as of the date of
this Voting Agreement:
__________________________________
Number of additional issued and
outstanding shares of Company
Common Stock owned beneficially
(but not of record) as of the date
of this Voting Agreement:
__________________________________
Number of issued and outstanding
shares of Company Preferred Stock
owned of record as of the date of
this Voting Agreement:
__________________________________
[Signature Page to Voting Agreement]
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Number of options, warrants and
other rights to acquire shares of
Company Common Stock owned of
record as of the date of this
Voting Agreement:
__________________________________
Number of additional options,
warrants and other rights to
acquire shares of Company Common
Stock owned beneficially (but not
of record) as of the date of this
Voting Agreement:
__________________________________
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
IRREVOCABLE PROXY
The undersigned shareholder of Artecon, Inc., a California corporation
("Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes Xxxxx X. Eeg, Xxxx X. Xxxxxx, Xxxxxx Xxxxxxx and
Storage Dimensions, Inc., a Delaware corporation ("Parent"), and each of them,
the attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the shares of capital stock of Company owned by the undersigned as of the
date of this proxy, which shares are specified on the final page of this proxy
and (ii) any and all other shares of capital stock of Company which the
undersigned may acquire after the date hereof. (The shares of the capital stock
of Company referred to in clauses (i) and (ii) of the immediately preceding
sentence are collectively referred to as the "Shares.") Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares are hereby revoked, and no subsequent proxies will be given with respect
to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Agreement and Plan of Merger and
Reorganization, dated as of the date hereof, among Parent, Storage Acquisition
Corp., a California corporation and wholly owned subsidiary of Parent, and
Company (the "Reorganization Agreement"). Capitalized terms used but not
otherwise defined in this proxy have the meanings ascribed to such terms in the
Reorganization Agreement.
The attorney and proxy named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Reorganization Agreement or the Effective Time at any
meeting of the shareholders of Company, however called, or in any written action
by consent of shareholders of Company:
(i) in favor of the Merger, the execution and delivery by the
Company of the Reorganization Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by the
Reorganization Agreement and any action required in furtherance hereof and
thereof;
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(ii) against any action or agreement that would result in a breach
of any representation, warranty, covenant or obligation of the Company in the
Reorganization Agreement; and
(iii) against the following actions (other than the Merger and the
transactions contemplated by the Reorganization Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any subsidiary of the Company; (B)
any sale, lease or transfer of a material amount of assets of the Company or any
subsidiary of the Company (other than in the ordinary course of business); (C)
any reorganization, recapitalization, dissolution or liquidation of the Company
or any subsidiary of the Company; (D) any change in a majority of the board of
directors of the Company; (E) any amendment to the Company's articles of
incorporation; (F) any material change in the capitalization of the Company or
the Company's corporate structure; or (G) any other action which 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 Reorganization Agreement or this Voting Agreement.
The undersigned shareholder may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, successors and assigns of
the undersigned (including any transferee of any of the Shares).
Any obligation of the undersigned hereunder shall be binding upon the
heirs, successors and assigns of the undersigned (including any transferee of
any of the Shares).
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This proxy shall terminate upon the Expiration Date.
Dated: December 22, 1997
SHAREHOLDER
________________________________________
Number of Shares of Company Common Stock
owned of record as of the date of this
proxy: _________________________________
