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EXHIBIT 3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 24, 2000 (this "AGREEMENT"), among the
stockholders listed on the signature pages hereto (collectively, the
"STOCKHOLDERS" and each individually, a "STOCKHOLDER"), Bluestone
Software, Inc., a Delaware corporation (the "COMPANY"), and Hewlett-Packard
Company, a Delaware corporation ("PARENT"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them in
the Merger Agreement referred to below.
WHEREAS, as of the date hereof, each Stockholder owns of record and
beneficially shares of capital stock of the Company, as set forth opposite such
Stockholder's name on Schedule I hereto (such shares, or any other voting or
equity of securities of the Company hereafter acquired by any Stockholder prior
to the termination of this Agreement, being referred to herein collectively as
the "SHARES");
WHEREAS, concurrently with the execution of this Agreement, Parent and the
Company are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "MERGER AGREEMENT"), pursuant to which, upon the terms and subject
to the conditions thereof, a subsidiary of Parent will be merged with and into
the Company, and the Company will be the surviving corporation (the "MERGER");
and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that the Stockholders agree, and in order
to induce Parent to enter into the Merger Agreement, the Stockholders are
willing to agree, to vote in favor of adopting the Merger Agreement and
approving the Merger, upon the terms and subject to the conditions set forth
herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
SECTION 1. DEFINITIONS. For purposes of this Voting Agreement:
(a) As used in this Agreement, "TAKEOVER PROPOSAL" shall mean any tender
or exchange offer involving the Company or any Subsidiary of the Company, any
proposal for a merger, consolidation or other business combination involving the
Company or any Subsidiary of the Company, any proposal or offer to acquire in
any manner an interest in excess of 15% of the outstanding equity securities of,
or a substantial portion of the business or assets of, the Company or any
Subsidiary of the Company, any proposal or offer with respect to any
recapitalization or restructuring with respect to the Company or any Subsidiary
of the Company or any proposal or offer with respect to any other transaction
similar to any of the foregoing with respect to such the Company or any
Subsidiary of the Company, other than pursuant to the transactions to be
effected pursuant to the Merger Agreement.
(b) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities shall mean 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")), including pursuant to any agreement, arrangement
or understanding, whether or not in writing; provided that such beneficial
ownership shall be limited to securities (not including those that the Person
(as defined in the Exchange Act) has a right to acquire within 60 days unless so
acquired) over which such Person has sole or shared voting power. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d)(3) of the Exchange Act and over which such Person has
sole or shared voting power.
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SECTION 2. VOTING OF SHARES.
(a) Each Stockholder covenants and agrees that until the termination of
this Agreement in accordance with the terms hereof, at the meeting of the
Company's stockholders to consider the Merger Agreement and the Merger or any
other meeting of the stockholders of the Company, however called, and in any
action by written consent of the stockholders of the Company, such Stockholder
will vote, or cause to be voted, all of his, her or its respective Shares
(i) in favor of adoption of the Merger Agreement and approval of the Merger
contemplated by the Merger Agreement, as the Merger Agreement may be modified or
amended from time to time in a manner not adverse to such Stockholder, and
(ii) against any other Takeover Proposal.
(b) Each Stockholder hereby irrevocably grants to, and appoints, Parent,
and any individual designated in writing by it, and each of them individually,
as its proxy and attorney-in-fact (with full power of substitution), for and in
its name, place and stead, to vote his, her or its Shares at any meeting of the
stockholders of the Company called with respect to any of the matters specified
in, and in accordance and consistent with this Section 2. Each Stockholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon the Stockholder's execution and delivery of this Agreement.
Each Stockholder hereby affirms that the irrevocable proxy set forth in this
Section 2(b) 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 such Stockholder under this Agreement. Except as otherwise provided for
herein, each Stockholder hereby (i) affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked,
(ii) ratifies and confirms all that the proxies appointed hereunder may lawfully
do or cause to be done by virtue hereof and (iii) affirms that such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law.
Notwithstanding any other provisions of this Agreement, the irrevocable proxy
granted hereunder shall automatically terminate upon the termination of this
Agreement.
SECTION 3. TRANSFER OF SHARES. Each Stockholder covenants and agrees that
such Stockholder will not directly or indirectly, (a) sell, assign, transfer
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise by operation of law),
pledge, encumber or otherwise dispose of any of the Shares, (b) deposit any of
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares or grant any proxy or power of attorney with respect
thereto which is inconsistent with this Agreement or (c) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, assignment, transfer (including by merger, testamentary
disposition, interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law) or other disposition of any Shares.
Notwithstanding the foregoing, any Stockholder may sell, assign or transfer all
or any part of its Shares to any director, officer, stockholder, partner or
affiliate of such Stockholder provided that the transferee thereof agrees to and
becomes bound by this Agreement as a Stockholder by executing a counterpart
hereof.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder on its own behalf hereby severally (but not jointly) represents and
warrants to Parent with respect to itself and its, his or her ownership of the
Shares as follows:
(a) OWNERSHIP OF SHARES. On the date hereof, the Shares are Beneficially
Owned by Stockholder or its nominee. Stockholder has full voting power, with
respect to all of the Shares. Such Stockholder is the record and Beneficial
Owner.
(b) POWER, BINDING AGREEMENT. Stockholder 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
Stockholder will not violate any agreement to which Stockholder is a party,
including, without limitation, any voting agreement, stockholders' agreement,
partnership
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agreement or voting trust other than such violations which individually or in
the aggregate do not materially impair the ability of Stockholder to perform its
obligations hereunder. This Agreement has been duly and validly executed and
delivered by Stockholder and constitutes a valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting creditors' rights and
remedies generally and subject, as to enforceability, to general principles of
equity (regardless of whether enforcement is sought in a proceeding at law or in
equity).
(c) NO CONFLICTS. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby will not, conflict
with or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, any
provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Stockholder or any of its properties or assets, other than such conflicts,
violations or defaults or terminations, cancellations or accelerations which
individually or in the aggregate do not materially impair the ability of
Stockholder to perform its obligations hereunder.
SECTION 5. NO SOLICITATION. Prior to the termination of this Agreement in
accordance with its terms, each Stockholder agrees, in its individual capacity
as a stockholder of the Company, that it will not, nor will it authorize or
permit any of its employees, agents and representatives to, directly or
indirectly, (a) initiate, solicit or encourage any inquiries or the making of
any Takeover Proposal, (b) enter into any agreement with respect to any Takeover
Proposal, or (c) participate in any discussions or negotiations regarding, or
furnish to any person any information with respect to, or take any other action
to facilitate any inquiries or the making of any proposal that constitutes, or
may reasonably be expected to lead to, any Takeover Proposal, except to the
extent that any such action is permitted by Section 6.6(a) of the Merger
Agreement.
SECTION 6. TERMINATION. This Agreement, including without limitation the
representations and warranties in Section 4, shall terminate upon the earliest
to occur of (i) the Effective Time or (ii) any termination of the Merger
Agreement in accordance with the terms thereof; provided that no such
termination shall relieve any party of liability for a willful breach hereof
prior to termination.
SECTION 7. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable
damage would occur in the event any provision of this Agreement was 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.
SECTION 8. FIDUCIARY DUTIES. Each Stockholder is signing this Agreement
solely in such Stockholder's capacity as an owner of his, her or its respective
Shares, and nothing herein shall prohibit, prevent or preclude such Stockholder
or its affiliate from taking or not taking any action in his or her capacity as
an officer or director of the Company, including the recommendation of the
Merger Agreement, to the extent not in breach of the Merger Agreement.
SECTION 9. MISCELLANEOUS.
(a) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect thereto. This Agreement may not be amended, modified or rescinded except
by an instrument in writing signed by each of the parties hereto.
(b) If any term or other provision of this Agreement is invalid, illegal
or incapable of being enforced by any rule of law, or public policy, all other
conditions and provisions of this Agreement shall nevertheless remain in full
force and effect. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good
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faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in a mutually acceptable manner in order that the terms of this Agreement remain
as originally contemplated to the fullest extent possible.
(c) This Agreement shall be governed by and construed in accordance with
the laws of the State of Delaware without regard to the principles of conflicts
of law thereof.
(d) This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
(e) The obligations and liabilities of the Stockholders under this
Agreement shall be several and not joint.
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
<TABLE>
<S> <C>
HEWLETT-PACKARD COMPANY
By: --------------------------------------------
Name: -----------------------------------------
Title:
------------------------------------------
BLUESTONE SOFTWARE, INC.
By: --------------------------------------------
Name: -----------------------------------------
Title:
------------------------------------------
STOCKHOLDERS:
Signature --------------------------------------
Print Name: ------------------------------------
Signature --------------------------------------
Print Name: ------------------------------------
Signature --------------------------------------
Print Name: ------------------------------------
Signature --------------------------------------
Print Name: ------------------------------------
Signature --------------------------------------
Print Name: ------------------------------------
Signature --------------------------------------
Print Name: ------------------------------------
Signature --------------------------------------
Print Name: ------------------------------------
Signature --------------------------------------
Print Name: ------------------------------------
</TABLE>
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