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EXHIBIT (d)(3)
TENDER AND VOTING AGREEMENT
THIS TENDER AND VOTING AGREEMENT, dated as of January 15, 2001 (this
"Agreement"), is entered into by and between Intel Corporation, a Delaware
corporation ("Parent"), and ESR Acquisition Corporation, a Delaware corporation
and direct wholly-owned subsidiary of Parent ("Acquisition"), on the one hand,
and Xxxx X. Xxxxx ("Shareholder"), on the other hand. Capitalized terms used
herein but not otherwise defined shall have the meanings set forth in the Merger
Agreement (as defined below).
RECITALS:
WHEREAS, concurrently herewith, Parent, Acquisition and Xircom, Inc., a
California corporation (the "Company"), are entering into an Agreement and Plan
of Merger, of even date herewith (the "Merger Agreement"), pursuant to which
Acquisition will make a tender offer (the "Offer") for all outstanding shares of
common stock, $0.001 par value, of the Company ("Company Common Stock") and,
after Acquisition has accepted tendered shares for payment (the date on which
such acceptance occurs, the "Acceptance Date"), the Company and Acquisition will
be merged together, with the Company as the surviving corporation and
wholly-owned subsidiary of Parent (the "Merger");
WHEREAS, Shareholder Beneficially Owns (as defined herein) 674,333 shares
of Company Common Stock (the "Shares"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have required that Shareholder agree, and
Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereto hereby agree as follows:
Section 1. Tender of Shares. Shareholder hereby agrees with Parent and
Acquisition that Shareholder will, promptly after the date of commencement of
the Offer (but in all events not later than ten (10) business days thereafter),
tender to Acquisition or its agent all Shares Beneficially Owned by Shareholder
on such date (the "Tendered Shares"). Shareholder further agrees to tender to
Acquisition or its agent promptly after Shareholder's acquisition thereof (but
in all events not later than ten (10) business days after such acquisition) all
other shares of Company Common Stock acquired and Beneficially Owned by
Shareholder at any time prior to the Acceptance Date or the date on which the
Offer is terminated or expires without Acquisition's having accepted shares for
payment; all such subsequently tendered Shares shall constitute "Tendered
Shares" for all purposes of this Agreement. Shareholder agrees not to withdraw
any of the Tendered Shares unless the Offer is terminated or has expired
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without Acquisition's having accepted the Tendered Shares for payment.
Shareholder acknowledges and agrees that Acquisition's obligation to accept for
payment and pay for the Tendered Shares is subject to all the terms and
conditions of the Offer.
Section 2. Voting Agreement.
(a) Shareholder hereby agrees with Parent and Acquisition that, at any
meeting of the Company's shareholders, however called, or in connection with any
written consent of the Company's shareholders in lieu of a meeting, Shareholder
shall vote the Shares Beneficially Owned by Shareholder, whether heretofore
owned or hereafter acquired, (i) in favor of approval of the Merger Agreement
and any actions required in furtherance of the transactions contemplated
thereby, including without limitation voting such shares in favor of the
election to the Company Board of each person designated by Parent for nomination
thereto pursuant to Section 1.3(a) of the Merger Agreement at any meeting of the
Company's shareholders called for the election of directors; (ii) 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 the
Company under the Merger Agreement; and (iii) except as otherwise agreed to in
writing in advance by Parent, against: (A) any Third Party Acquisition, (B) any
change in a majority of the individuals who, as of the date hereof, constitute
the Company Board (other than as contemplated by Section 1.3 of the Merger
Agreement), (C) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving the Company or any of its
subsidiaries and any Third Party, (D) a sale, lease, transfer or disposition of
any assets of the Company's or any of its subsidiaries' business outside the
ordinary course of business, or any assets which are material to its business
whether or not in the ordinary course of business, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
subsidiaries, (E) any change in the present capitalization of the Company or any
amendment of the Company's Articles of Incorporation or bylaws, (F) any other
material change in the Company's corporate structure or affecting its business,
or (G) any other action which is intended, or could reasonably be expected, to
impede, interfere with, delay, postpone or materially adversely affect the
Offer, the Merger or any of the other transactions contemplated by the Merger
Agreement or the Stock Option Agreement, or any of the transactions contemplated
by this Agreement.
(b) Shareholder shall not enter into any agreement or understanding with
any person the effect of which would be inconsistent or violative of the
provisions and agreements contained herein.
(c) For purposes of this Agreement, "Beneficially Own" or "Beneficial
Ownership" with respect to any securities shall mean Shareholder's having such
ownership, control or power to direct the voting with respect to, or otherwise
enables Shareholder to legally act with respect to, such securities as
contemplated hereby, including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Securities Beneficially Owned by
Shareholder shall (i) include securities
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Beneficially Owned by all other persons with whom Shareholder would constitute a
"group" as within the meaning of Section 13(d)(3) of the Exchange Act, and (ii)
exclude, until their issuance, any Shares issuable upon exercise of options held
by Shareholder.
Section 3. Director Matters Excluded. Parent and Acquisition acknowledge
and agree that no provision of this Agreement shall limit or otherwise restrict
Shareholder with respect to any act or omission that Shareholder may undertake
or authorize in his capacity as a member of the Company Board, including,
without limitation, any vote that Shareholder may make as a director of the
Company with respect to any matter presented to the Company Board.
Section 4. Other Covenants, Representations and Warranties. Shareholder
hereby represents and warrants to Parent and Acquisition as follows:
(a) Ownership of Shares. Shareholder is the Beneficial Owner of all the
Shares. On the date hereof, the Shares constitute all of the Shares Beneficially
Owned by Shareholder. Shareholder has voting power with respect to the matters
set forth in Section 2(a) hereof with respect to all of the Shares, with no
limitations, qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Shareholder has the legal capacity, power
and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by
Shareholder will not violate any agreement or any court order to which
Shareholder is a party or is subject including, without limitation, any voting
agreement or voting trust. This Agreement has been duly and validly executed and
delivered by Shareholder.
(c) Restriction on Transfer, Proxies and Non-Interference. Except as
expressly contemplated by this Agreement or the Merger Agreement, Shareholder
shall not, directly or indirectly: (i) 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 Shares or any interest therein; (ii) grant any
proxies or powers of attorney or deposit any Shares into a voting trust or enter
into a voting agreement with respect to any Shares; or (iii) take any action
that would make any representation or warranty of Shareholder contained herein
untrue or incorrect or have the effect of preventing or disabling Shareholder
from performing any of Shareholder's obligations under this Agreement.
Notwithstanding anything to the contrary provided in this Agreement, Shareholder
shall have the right to transfer Shares to (i) any Family Member, (ii) the
trustee or trustees of a trust for the benefit of Shareholder and/or one or more
Family Members and/or charitable organizations, (iii) a partnership of which
Shareholder and/or Family Members owns a majority of the partnership interests,
(iv) a limited liability company of which Shareholder and/or any Family Members
owns a majority of the membership interests, (v) the executor, administrator or
personal representative of the estate of Shareholder, or
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(vi) any guardian, trustee or conservator appointed with respect to the assets
of Shareholder; provided that in the case of any such transfer, the transferee
shall, as a condition to such transfer, execute an agreement to be bound by the
terms of this Agreement, or terms substantially identical thereto. "Family
Member" shall have the meaning ascribed to "Related Parties" under Section
672(c) of the Internal Revenue Code of 1986, as amended.
(d) Other Potential Acquirors. Shareholder shall immediately cease any
discussions or negotiations with any other persons with respect to any Third
Party Acquisition. Shareholder shall not, directly or indirectly, encourage,
solicit, participate in or initiate discussions or negotiations with or provide
any information to any person or group (other than Parent and Acquisition or any
designees of Parent and Acquisition) concerning any Third Party Acquisition. The
Shareholder shall promptly (and in any event within one business day after
becoming aware thereof) (i) notify Parent in the event the Shareholder receives
any proposal or inquiry concerning a Third Party Acquisition, including the
terms and conditions thereof and the identity of the party submitting such
proposal, and any request for confidential information in connection with a
potential Third Party Acquisition, (ii) provide a copy of any written
agreements, proposals or other materials Shareholder receives from any such
person or group (or its representatives), and (iii) advise Parent from time to
time of the status, at any time upon Parent's request, and promptly following
any developments concerning the same.
(e) Reliance by Parent and Acquisition. Shareholder understands and
acknowledges that Parent and Acquisition are entering into the Merger Agreement
in reliance upon Shareholder's execution and delivery of this Agreement.
(f) Sophistication. The Shareholder acknowledges being an informed and
sophisticated investor and, together with the Shareholder's advisors, has
undertaken such investigation as they have deemed necessary, including the
review of the Merger Agreement and this Agreement, to enable the Shareholder to
make an informed and intelligent decision with respect to the Merger Agreement
and this Agreement and the transactions contemplated thereby and hereby.
Section 5. Stop Transfer. Shareholder agrees with, and covenants to, Parent
and Acquisition that Shareholder shall not request that the Company register the
transfer (book-entry or otherwise) of any certificate or uncertificated interest
representing any Shares, unless such transfer is made pursuant to this
Agreement. In the event of a stock dividend or distribution, or any change in
the Company Common Stock by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term "Shares"
shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
Section 6. Termination. Shareholder's covenants and agreements contained
herein with respect to the Shares shall terminate upon the earliest to occur of:
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(a) the termination of the Merger Agreement in accordance with its terms; (b)
the Acceptance Date; and (c) May 15, 2001. Upon the termination of this
Agreement, this Agreement shall forthwith become null and void, and there shall
be no liability on the part of any party hereto, except (i) that the provisions
of this Section 6 and the provisions of Section 7 shall survive the termination
of this Agreement and (ii) nothing herein shall relieve any party from liability
for any intentional breach hereof.
Section 7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire agreement
between the parties with respect to the subject matter hereof and supersedes all
other prior agreements and understandings, both written and oral, among the
parties with respect to the subject matter hereof.
(b) Certain Events. Shareholder agrees that this Agreement and the
obligations hereunder shall attach to the Shares and shall be binding upon any
person to which legal or beneficial ownership of any Shares shall pass, whether
by operation of law or otherwise. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(c) Assignment. This Agreement shall not be assigned by operation of law
or otherwise without the prior written consent of the other party; provided,
however, that Parent may, in its sole discretion, assign its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent; provided further that such assignment shall not relieve Parent of its
obligations hereunder if such subsidiary shall fail to perform such obligations
in accordance with the terms of this Agreement.
(d) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by the parties hereto.
(e) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telecopy, or by
mail (registered or certified mail, postage prepaid, return receipt requested)
or by any nationally-recognized overnight courier service, such as Federal
Express, providing proof of delivery. Any such notice or communication shall be
deemed to have been delivered and received (i) in the case of hand delivery, on
the date of such delivery, (ii) in the case of telecopy, on the date sent if
confirmation of receipt is received and such notice is also promptly mailed by
registered or certified mail (return receipt requested), (iii) in the case of a
nationally-recognized overnight courier service, in circumstances under which
such courier guarantees next business day delivery, on the next business day
after the date when sent, and (iv) in the case of mailing, on the third business
day following the date on which the piece of mail containing such communication
is posted. All communications hereunder shall be delivered to the respective
parties at the following addresses: (i) if to Parent or
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Acquisition, to its address set forth in the Merger Agreement, and (ii) if to
the Shareholder, to the address set forth under the Shareholder's signature on
the signature page hereto; or, in each case, to such other address as the Person
to whom notice is given may have previously furnished to the others in writing
in the manner set forth above.
(f) Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law
but if any provision of this Agreement is held to be invalid, illegal or
unenforceable in any respect under any applicable law or rule in any
jurisdiction, such invalidity, illegality or unenforceability will not affect
any other provision or portion of any provision in such jurisdiction, and this
Agreement will be reformed, construed and enforced in such jurisdiction as if
such invalid, illegal or unenforceable provision or portion of any provision had
never been contained herein.
(g) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damage for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific 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.
(h) Further Assurances. From time to time, at the other party's request
and without further consideration, the Shareholder 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.
(i) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any right, power or
remedy by any party shall not preclude the simultaneous or later exercise of any
other such right, power or remedy by such party.
(j) 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, shall 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.
(k) 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 conflicts of law thereof.
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(l) WAIVER OF JURY TRIAL. THE PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY
JURY IN ANY ACTION OR PROCEEDING TO ENFORCE OR DEFEND ANY RIGHTS UNDER THIS
AGREEMENT AND ANY DOCUMENT EXECUTED IN CONNECTION HEREWITH.
(m) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same agreement.
(n) Descriptive Headings. The descriptive headings used herein are
inserted for convenience of reference only and are not intended to be part of or
to affect the meaning or interpretation of this Agreement.
[THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, Parent, Acquisition and the Shareholder have executed
and delivered this Agreement as of the day and year first above written.
INTEL CORPORATION, a Delaware corporation
By: /s/ XXXXXX XXXXXXX
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Name: Xxxxxx Xxxxxxx
Title: Vice President and Treasurer
ESR ACQUISITION CORPORATION, a Delaware
corporation
By: XXXXX X. XXXXXX
-------------------------------------------
Name: Xxxxx X. Xxxxxx
Title: President
SHAREHOLDER
/s/ XXXX X. XXXXX
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Name: Xxxx X. Xxxxx
Address for Notices to Shareholder:
0000 Xxxxxx Xxxxxx Xxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
[SIGNATURE PAGE TO INTEL/XIRCOM TENDER AND VOTING AGREEMENT]
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