EXHIBIT 3
SOFTWARE.COM VOTING AGREEMENT
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VOTING AGREEMENT (this "Voting Agreement"), dated as of
August 8, 2000, by and between Phone.com, Inc., a Delaware corporation
("Phone") and ______________________________ (the "Stockholder").
RECITALS:
WHEREAS, concurrently with the execution of this Voting
Agreement, Software.com, Inc., a Delaware corporation (the "Company") and
Phone have entered into an Agreement and Plan of Merger (the "Merger
Agreement"), pursuant to which the parties have agreed, upon the terms and
subject to the conditions set forth in the Merger Agreement, to a strategic
combination of Phone and the Company (the "Merger");
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 the
Company (the "Company Common Stock");
WHEREAS, as inducement and a condition to entering into the
Merger Agreement, Phone has required Stockholder to agree, and Stockholder
has agreed, to enter into this Voting Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals
and the mutual promises, representations, warranties, covenants and
agreements contained in this Voting Agreement, the parties, intending to be
legally bound, agree as follows:
Section 1. CERTAIN DEFINITIONS. In addition to the terms
defined elsewhere in this Voting Agreement, capitalized terms used and not
defined in this Voting Agreement have the respective meanings ascribed to
them in the Merger Agreement. For purposes of this Voting 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 securities of the same
issuer.
(b) "Existing Shares" means shares of Company Common
Stock Beneficially Owned by Stockholder as of the date of this Voting
Agreement provided that, 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,
other than pursuant to the Merger, the term "Existing Shares" will be
deemed to refer to and include the shares of Company 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 (as defined hereinafter) may be
changed or exchanged and appropriate adjustments shall be made to the terms
and provisions of this Voting Agreement.
(c) "Securities" means the Existing Shares together
with any shares of Company Common Stock or other securities of the Company
acquired by Stockholder in any capacity after the date of this Voting
Agreement and prior to its termination 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 Phone as follows:
(a) OWNERSHIP OF SHARES. Stockholder is the sole
record and Beneficial Owner of _________ Existing Shares. On the date of
this Voting Agreement, the Existing Shares constitute all of the shares of
Company 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 Company Common Stock. Stockholder has sole voting power and sole power
to issue instructions with respect to the matters set forth in Sections 5,
6 and 7 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 Voting 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 Voting 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 Voting Agreement. This Voting
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 for filings under the
Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended (the "HSR
Act"), and the Exchange Act, 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 Voting
Agreement by Stockholder and the consummation by Stockholder of the
transactions contemplated by this Voting Agreement. None of the execution
and delivery of this Voting Agreement by Stockholder, the consummation by
Stockholder of the transactions contemplated by this Voting Agreement or
compliance by Stockholder with any of the provisions of this Voting
Agreement 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.
(d) NO ENCUMBRANCE. Except as permitted by this
Voting Agreement, the Existing Shares are now and, at all times during the
term of this Voting Agreement, 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 by this Voting Agreement based upon
arrangements made by or on behalf of Stockholder.
(f) RELIANCE BY PHONE. Stockholder understands and
acknowledges that Phone is entering into the Merger Agreement in reliance
upon Stockholder's execution and delivery of this Voting Agreement.
Section 3. REPRESENTATIONS AND WARRANTIES OF PHONE. Phone
represents and warrants to Stockholder as follows:
(a) POWER; BINDING AGREEMENT. Phone has the corporate
power and authority to enter into and perform all of its obligations under
this Voting Agreement. This Voting Agreement has been duly and validly
executed and delivered by Phone and constitutes a valid and binding
agreement of Phone, enforceable against Phone 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 for filings under the HSR
Act and the Exchange Act, no filing with, and no permit, authorization,
consent, or approval of, any Governmental Entity is necessary for the
execution of this Voting Agreement by Phone and the consummation by Phone
of the transactions contemplated by this Voting Agreement. None of the
execution and delivery of this Voting Agreement by Phone, the consummation
by Phone of the transactions contemplated by this Voting Agreement, or
compliance by Phone with any of the provisions of this Voting Agreement
shall (i) conflict with or result in any breach of any organizational
documents applicable to either Phone, (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 either Phone is a party or by which either Phone 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 Phone or any of its properties or assets.
Section 4. DISCLOSURE. Stockholder agrees to permit Phone to
publish and disclose in all documents and schedules filed with the
Securities and Exchange Commission, and any press release or other
disclosure document that Phone, in its sole discretion, determines to be
necessary or desirable in connection with the Merger and any transactions
related to the Merger, Stockholder's identity and ownership of Company
Common Stock and the nature of Stockholder's commitments, arrangements and
understandings under this Voting Agreement.
Section 5. CERTAIN RESTRICTIONS.
(a) NO SOLICITATION. Stockholder (in his, her or its
capacity as such) will not, and will cause its subsidiaries, partners,
investment bankers, attorneys, accountants, and other agents and
representatives of Stockholder (such subsidiaries, partners, investment
bankers, attorneys, accountants, agents and representatives of any person
are collectively referred to as the "Representatives" of such person) not
to, directly or indirectly (i) initiate, solicit or encourage, or take any
action to facilitate the making of, any offer or proposal which constitutes
or is reasonably likely to lead to any Alternative Transaction (as defined
in the Merger Agreement) or any inquiry with respect thereto or (ii) in the
event of any unsolicited Alternative Transaction for the Company or any
affiliate of the Company, engage in negotiations or discussions with, or
provide any information or data to, any person (other than Phone, any of
its affiliates or representatives) relating to any Alternative Transaction;
provided, that Stockholder may engage in negotiations or discussions with
or provide any information or data to, any such person relating to an
Alternative Transaction to the extent that the Company is permitted to
engage in such activities pursuant to Section 4.2(a) of the Merger
Agreement. Stockholder will, notify Phone orally and in writing of any such
offers, proposals, or inquiries relating to the purchase or acquisition by
any person of Securities (including, without limitation, the terms and
conditions thereof and the identity of the person making it), within 24
hours of the receipt of such offers. Stockholder will, and will cause its
Representatives to, immediately cease and cause to be terminated any and
all existing activities, discussions or negotiations, if any, with any
parties conducted prior to the date of this Voting Agreement without
respect to any Alternative Transaction relating to the Company, other than
discussions or negotiations with Phone and its affiliates and their
Representatives.
(b) CERTAIN ACTIONS. Prior to the termination of this
Voting Agreement, Stockholder agrees not to, directly or indirectly, take
any other action that would make any representation or warranty of
Stockholder contained herein untrue or incorrect.
Section 6. VOTING OF COMPANY COMMON STOCK. Stockholder, in
his, her or its capacity as such, hereby agrees that, during the period
commencing on the date thirty (30) days prior to the Effective Time (as
defined in the Merger Agreement) and continuing until the first to occur of
(a) the Effective Time (as defined in the Merger Agreement) or (b)
termination of this Voting Agreement in accordance with its terms,
Stockholder will not sell or transfer any Securities or any interest
therein to any person unless each person to which any Securities, or any
interest in any of such Securities, is or may be transferred shall have (x)
executed a counterpart of this Voting Agreement (with such modifications as
Phone may reasonably request) and (y) agreed in writing to hold such
Securities (or interest in such Securities) subject to all of the terms and
provisions of this Voting Agreement. Stockholder, in his, her or its
capacity as such, hereby agrees that, during the period commencing on the
date hereof and continuing until the first to occur of (a) the Effective
Time (as defined in the Merger Agreement) or (b) termination of this Voting
Agreement in accordance with its terms, at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of the
holders of Company Common Stock, however called, or in connection with any
written consent of the holders of Company Common Stock, Stockholder will
appear at the meeting or otherwise cause the Securities to be counted as
present at the meeting for purposes of establishing a quorum and vote or
consent (or cause to be voted or consented) the Securities in favor of the
adoption of the Merger Agreement and the approval of other actions
contemplated by the Merger Agreement.
Section 7. DIRECTORS AND OFFICERS. Notwithstanding any
provision of this Voting Agreement to the contrary, nothing in this Voting
Agreement shall limit or restrict Stockholder from acting in Stockholder's
capacity as a director or officer of the Company (it being understood that
this Agreement shall apply to Stockholder solely in Stockholder's capacity
as a stockholder of the Company) or voting in Stockholder's sole discretion
on any matter other than those matters referred to in Section 6(ii).
Section 8. PROXY
(a) Stockholder hereby irrevocably grants to, and
appoints, ____________________________ and ___________________________ or
either of them in their respective capacities as officers of Phone and any
individual who shall hereafter succeed to any such office of Phone 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 favor of the Merger, as specified in Section
6.
(b) Stockholder represents that any proxies given
prior to this Voting Agreement regarding the Existing Shares are not
irrevocable, and that such proxies are revoked.
(c) Stockholder affirms that the irrevocable proxy
set forth in this Section 8 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 Voting Agreement.
Stockholder further affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked. Stockholder ratifies
and confirms all that such irrevocable proxy may lawfully do or cause to be
done by virtue hereof.
Section 9. 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 agreements to which the Stockholder is
a party or pursuant to any rights Stockholder may have.
Section 10. COMMERCIALLY REASONABLE EFFORTS. Subject to the
terms and conditions of this Voting Agreement, the Stockholder agrees to
use commercially reasonable efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, all things necessary under
applicable laws and regulations to consummate the transactions contemplated
by this Voting Agreement. Stockholder shall at all times publicly support
the Merger; provided, however, that in the event of a Phone Subsequent
Determination (as defined in the Merger Agreement), the Stockholder shall
have no obligation pursuant to this Section 10 other than to comply with
the Stockholder's obligations under Section 6 hereof. Notwithstanding the
foregoing, (i) if Stockholder is a director or officer of the Company,
nothing contained in this Voting Agreement shall prohibit such director or
officer from taking such action as a director or officer of the Company
that may be required on the part of such person as a director or officer of
the Company; and (ii) except as provided in Section 6 hereof, nothing
contained in this Voting Agreement shall prohibit the Stockholder from
exercising the voting rights of a stockholder of the Company.
Section 11. TERMINATION. This Voting Agreement and the proxy
granted herein shall terminate on the earliest of (i) the termination of
the Merger Agreement, (ii) the agreement of the parties hereto to terminate
this Voting Agreement, or (iii) the consummation of the Merger.
Section 12. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Voting 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 of this Voting Agreement.
(b) SUCCESSORS AND ASSIGNS. This Voting Agreement
shall not be assigned by operation of law or otherwise without the prior
written consent of the other parties. This Voting Agreement shall be
binding upon, inure to the benefit of, and be enforceable by each party and
each party's respective heirs, beneficiaries, executors, representatives,
and permitted assigns.
(c) AMENDMENT AND MODIFICATION. This Voting 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 upon (i)
transmitter's confirmation of a receipt of a facsimile transmission, (ii)
confirmed delivery by a standard overnight carrier or when delivered by
hand, or (iii) the expiration of five business days after the day when
mailed by certified or registered mail, postage prepaid, addressed at the
following addresses (or at such other address for a party as shall be
specified by like notice):
If to Phone to:
Phone.com, Inc.
800 Chesapeake Drive
Redwood City, CA 94603
Attention: General Counsel
with a copy to:
Skadden, Arps, Slate, Meagher & Flom LLP
525 University Avenue
Palo Alto, CA 94301
Attention: Kenton J. King, Esq.
Telecopy No.: (650) 470-4570
If to Stockholder, to:
________________________
________________________
________________________
________________________
with a copy to:
________________________
________________________
________________________
________________________
(e) SEVERABILITY. Any term or provision of this
Voting 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 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.
(f) SPECIFIC PERFORMANCE. Each of the parties
recognizes and acknowledges a breach by it of any covenants or agreements
contained in this Voting 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 to exercise
any right, power or remedy provided under this Voting Agreement or
otherwise available in respect of this Voting Agreement at law or in
equity, or to insist upon compliance by any other party with its obligation
under this Voting Agreement, and any custom or practice of the parties at
variance with the terms of this Voting Agreement, 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 Voting
Agreement is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(i) GOVERNING LAW. This Voting 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 Voting Agreement.
(k) EXPENSES. All costs and expenses incurred in
connection with this Voting Agreement and the transactions contemplated
hereby shall be paid by the party incurring the expenses.
(l) FURTHER ASSURANCES. From time to time, at any
other party's request and without further consideration, each party shall
execute and deliver any additional documents and take any 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 Voting Agreement.
(m) COUNTERPARTS. This Voting 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, Phone.com and Stockholder have caused
this Voting Agreement to be duly executed as of the day and year first
written above.
PHONE.COM, INC.
By: ____________________________
Name:
Title:
STOCKHOLDER:
________________________________
Name:
