EXHIBIT 99.1 TO FORM 8-K
VOTING AGREEMENT
THIS VOTING AGREEMENT (the "Agreement"), is entered into as of December
__, 1999, by and among Puma Technology, Inc., a Delaware corporation, and the
shareholder of NetMind Technologies, Inc., a California corporation (the
"Company"), whose name is set forth on the signature page hereto
("Shareholder").
RECITALS
A. As of the date hereof, Shareholder beneficially (as such term is
used in Rule 13d-3 under the Securities Exchange Act of 1934, as amended) and
of record owns the number of issued and outstanding shares of Series A
Preferred Stock (the "Series A Preferred"), no par value, of the Company,
Series B Preferred Stock (the "Series B Preferred"), no par value, of the
Company (the Series A Preferred and Series B Preferred will be collectively
referred to as the "Company Preferred Stock") and common stock, no par value,
of the Company (the "Company Common Stock" and collectively with the Company
Preferred Stock and all other Company Common Stock or Company Preferred Stock
hereafter acquired by Shareholder prior to the termination of this Agreement,
the "Company Shares") set forth below Shareholder's name on the signature
page hereto;
B. Parent, Rocket Kitty Acquisition Corp. a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and the Company propose to
enter into, simultaneously herewith, an Agreement and Plan of Merger and
Reorganization (the "Reorganization Agreement"), which provides, upon the
terms and subject to the conditions thereof, for the acquisition by Parent of
the Company through the merger of Merger Sub with and into the Company (the
"Merger"); and
C. As a condition to the willingness of Parent to enter into the
Reorganization Agreement, Parent has requested that Shareholder agree, and,
in order to induce Parent to enter into the Reorganization Agreement,
Shareholder has agreed, subject to the terms and conditions of this
Agreement, to vote Shareholder's Company Shares in favor of the Merger
Agreement, the Merger and related transactions.
AGREEMENT
The parties, intending to be legally bound, agree as follows:
1. DEFINED TERMS. Capitalized terms used in this Agreement and not
otherwise defined shall have the meanings given to them in the Reorganization
Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER.
Shareholder hereby represents and warrants to Parent as follows:
(a) AUTHORITY RELATIVE TO THIS AGREEMENT; BINDING AGREEMENT. This
Agreement and the Proxy (as defined below) have been duly executed and
delivered by Shareholder and constitute legal, valid and binding obligations
of Shareholder, enforceable against Shareholder in accordance with their
respective terms, except to the extent that enforceability may be limited by
applicable bankruptcy, insolvency, reorganization, moratorium or other
similar laws affecting
creditors' rights and general principles of equity. Shareholder has full
legal capacity to execute and deliver this Agreement and the Proxy, to
perform Shareholder's obligations hereunder and thereunder and to consummate
the transactions contemplated hereby and thereby.
(b) CONSENTS; NO CONFLICT. The execution and delivery of this
Agreement and the Proxy by Shareholder does not, and the performance by
Shareholder of Shareholder's obligations pursuant to this Agreement and the
Proxy and the consummation by Shareholder of the transactions contemplated
hereby and thereby will not, (i) require any consent, approval, authorization
of, or registration, qualification, designation, declaration or filing with,
any federal, state or local governmental authority or administrative agency,
(ii) conflict with or violate any provision of any law or regulation, or any
writ, order or decree of any court, governmental or regulatory authority or
agency, or any term or provision of the Articles of Incorporation or Bylaws
of the Company or similar organizational documents of Shareholder if
Shareholder is an entity, or (iii) result in any breach of, or constitute a
default or require any consent or notice under, or result in the creation of
a lien, charge or other encumbrance upon any property or assets of the
Company or Shareholder pursuant to any instrument or agreement to which the
Company or Shareholder is a party or by which either of them or any of their
respective properties may be bound or affected.
(c) TITLE TO COMPANY SHARES. Shareholder is the record and
beneficial owner of that number of shares of Series A Preferred, Series B
Preferred and Company Common Stock as is set forth below Shareholder's name
on the signature page hereto, free and clear of all security interests,
liens, claims, pledges, options, rights of first refusal, agreements,
limitations on voting rights, charges and other encumbrances of any nature
whatsoever (other than pursuant to this Agreement or Co-Sale Agreements or
Restricted Stock Purchase Agreements with the Company).
3. TRANSFER AND VOTING OF COMPANY SHARES
(a) TRANSFER OF COMPANY SHARES. Unless and until the Merger occurs
or the Reorganization Agreement shall have been terminated in accordance with
its terms (an "Event of Termination"), Shareholder shall not sell, pledge,
transfer or otherwise dispose of any of Shareholder's Company Shares, or take
any other action which would adversely affect the voting of the Shareholder's
Company Shares in the manner provided in Section 3(b) below, unless in each
such case the transferee and any other party having control over the voting
of the Shareholder's Company Shares agrees to be bound hereby in the same
manner that Shareholder is bound, and delivers a proxy in the form attached
hereto as Exhibit A.
(b) VOTING OF COMPANY SHARES; FURTHER ASSURANCES. Unless and
until the occurrence of an Event of Termination, Shareholder agrees to vote
or cause to be voted all Company Shares (at every annual or special meeting
and every adjournment thereof and pursuant to every written consent) owned by
Shareholder in favor of approval and adoption of the Merger, the
Reorganization Agreement (as it may be amended by the parties thereto), the
transactions contemplated thereby and any other matter that could reasonably
be expected to facilitate the Merger and the transactions contemplated by the
Reorganization Agreement (as it may be amended by the parties thereto).
Concurrently with the execution of this Agreement, Shareholder is executing
and delivering to Parent a proxy in the form attached hereto as Exhibit A
(the "Proxy").
(c) ADDITIONAL SHARES. All references in this Agreement to Company
Shares shall be deemed to include any shares of capital stock of the Company
as to which Shareholder subsequently acquires beneficial ownership.
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3. GENERAL PROVISIONS
(a) WAIVER AND AMENDMENT. This Agreement may only be amended by an
instrument in writing executed by the parties hereto. No failure by any party
hereto to take any action against any breach of this Agreement or default by
another party shall constitute a waiver of the former party's right to
enforce any provision of this Agreement or to take action against such breach
or default or any subsequent breach or default by such other party.
(b) FEES AND EXPENSES. All expenses incurred in connection with
this Agreement shall be paid by the party incurring such expenses.
(c) NOTICES. Any notice or other communication required or
permitted to be delivered to any party under this 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 addresses or facsimile number set forth below
their names on the signature pages of this Agreement (or at such other
addresses or facsimile number as shall be specified by the parties by like
notice).
(d) SEVERABILITY. In the event that any one or more of the
provisions contained in this Agreement shall be declared invalid, void or
unenforceable, the remainder of the provisions of this Agreement shall remain
in full force and effect, and such invalid, void or unenforceable provision
shall be interpreted as closely as possible to the manner in which it was
written.
(e) ASSIGNMENT; BINDING EFFECT; BENEFIT. Neither this Agreement
nor any of the rights, interests or obligations hereunder shall be assigned
by any of the parties hereto (whether by operation of law or otherwise)
without the prior written consent of the other parties hereto. Subject to the
preceding sentence, this Agreement shall be binding upon and shall inure to
the benefit of the parties hereto and their respective successors and
permitted assigns. Notwithstanding anything contained in this Agreement to
the contrary, nothing in this Agreement, express or implied, is intended to
confer on any person other than the parties hereto or their respective
successors and permitted assigns any rights, remedies, obligations or
liabilities under or by reason of this Agreement.
(f) SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement
were not performed in accordance with the terms hereof and that the parties
shall be entitled to specific performance of the terms hereof, in addition to
any other remedy at law or in equity.
(g) GOVERNING LAW. This Agreement has been entered into and shall
be construed and enforced in accordance with the laws of the State of
California without reference to the choice of law principles thereof.
(h) HEADINGS. The descriptive headings contained in this Agreement
are included for convenience of reference only and shall not affect in any
way the meaning or interpretation of this Agreement.
(i) COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed an original but all of which
together shall constitute one
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and the same instrument. Any telecopied counterpart of a manually executed
original shall be deemed a manually executed original.
(j) ENTIRE AGREEMENT. This Agreement constitutes the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings among the parties with
respect thereto. No addition to or modification of any provision of this
Agreement shall be binding upon any party hereto unless made in writing and
signed by all parties hereto.
(k) LITIGATION; PREVAILING PARTY. In the event of any litigation
with regard to this Agreement, the prevailing party shall be entitled to
receive from the non-prevailing party and the non-prevailing party shall pay
upon demand all reasonable fees and expenses of counsel for the prevailing
party.
(l) NO THIRD PARTY BENEFICIARY. Nothing expressed or implied in
this Agreement is intended, or shall be construed, to confer upon or give any
person other than the parties hereto and their respective successors and
permitted assigns, any rights or remedies under or by reason of this
Agreement.
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IN WITNESS WHEREOF, the parties have duly executed this Agreement as
of the day and year first above written.
PUMA TECHNOLOGY, INC.
_____________________________________
By:__________________________________
Title:_______________________________
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SIGNATURE PAGE TO THE VOTING AGREEMENT
AMONG PUMA AND
CERTAIN SHAREHOLDERS OF NETMIND
DATED DECEMBER __, 1999.
SHAREHOLDER:
___________________________________
Name:______________________________
By:________________________________
Title: ______________________________
Address:__________________________________
__________________________________
Facsimile Number: ________________________
Number and type of shares owned:
______________________________________
______________________________________
Number and type of shares subject to stock
options:
______________________________________
Number and type of shares issuable upon
exercise of warrants:______________________
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EXHIBIT A TO
VOTING AGREEMENT
IRREVOCABLE PROXY
The undersigned shareholder of NetMind Technologies, Inc., a California
corporation (the "Company"), hereby irrevocably (to the maximum extent
permitted under the California General Corporation Law) appoints Puma
Technology, Inc., a Delaware corporation ("Parent"), and any officer of
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 to vote or consent on the matters set forth below with
respect to all issued and outstanding shares of capital stock of the Company
owned of record or beneficially by undersigned (the "Shares"), and any and
all other shares or securities issued in respect thereof on or after the date
hereof, until the earlier of such time as (i) as the Agreement and Plan of
Merger and Reorganization dated the date hereof among Parent, Rocket Kitty
Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary
of Parent, and the Company (the "Reorganization Agreement") shall be
terminated in accordance with its terms or (ii) the Merger is consummated.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares and any and all other shares or securities issued in
respect thereof on or after the date hereof are hereby revoked and no
subsequent proxies will be given with respect to the matters set forth below.
This proxy is irrevocable to the maximum extent permitted under the
California General Corporation Law and is granted in consideration of Parent
entering into the Reorganization Agreement and the consideration to be
received by the undersigned upon consummation of the Merger. The attorneys
and proxies named above will be empowered at any time prior to such
termination of the Reorganization Agreement to exercise all rights to vote or
consent with respect to the matters set forth below as such designees, or any
of them in their or its sole discretion, deem proper in respect of any
annual, special or adjourned meeting of the Company's shareholders, or any
written consent in lieu of such a meeting, or otherwise. All capitalized
terms used but not defined herein shall have the meanings ascribed thereto in
the Reorganization Agreement.
The attorneys and proxies named above may only exercise this proxy to
vote, or execute and deliver a written consent with respect to, the Shares
subject hereto in favor of approval and adoption of the Merger, the
Reorganization Agreement (as it may be amended by the parties thereto), the
transactions contemplated thereby and any other matter that could reasonably
be expected to facilitate the Merger and the transactions contemplated by the
Reorganization Agreement (as it may be amended by the parties thereto). The
undersigned retains the right to vote and execute consents with respect to
all matters other than those set forth above. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned.
Dated: December __, 1999
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Name of Shareholder: _________________________
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