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EXHIBIT 3
FORM OF VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
September 18, 2000 by and between Sun Microsystems, Inc., a Delaware corporation
("Parent"), and the undersigned stockholder and/or option holder (the
"Stockholder") of Cobalt Networks, Inc., a Delaware corporation (the "Company").
RECITALS:
A. Parent, the Company and Merger Sub (as defined below) have entered
into an Agreement and Plan of Merger and Reorganization (the "Reorganization
Agreement"), which provides for the merger (the "Merger") of a wholly-owned
subsidiary of Parent ("Merger Sub") with and into the Company, pursuant to which
all outstanding capital stock of the Company will be converted into the right to
receive common stock of Parent, as set forth in the Reorganization Agreement.
B. The Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of
such number of shares of the outstanding capital stock of the Company, and such
number of shares of capital stock of the Company issuable upon the exercise of
outstanding options and warrants, as is indicated on the signature page of this
Agreement.
C. In consideration of the execution of the Reorganization Agreement by
Parent, the Stockholder (in his or her capacity as such) has agreed to vote the
Shares (as defined below) and such other shares of capital stock of the Company
over which the Stockholder has voting power, so as to facilitate consummation of
the Merger.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Reorganization
Agreement. For all purposes of and under this Agreement, the following terms
shall have the following respective meanings:
(a) "Expiration Date" shall mean the earlier to occur of (i) such
date and time as the Reorganization Agreement shall have been validly terminated
pursuant to its terms, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and conditions set forth in the
Reorganization Agreement.
(b) "Person" shall mean any individual, any corporation, limited
liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
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(c) "Shares" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) owned by the Stockholder
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 the Stockholder acquires beneficial ownership during the
period commencing with the execution and delivery of this Agreement until the
Expiration Date.
(d) Transfer. A Person shall be deemed to have effected a "Transfer"
of a security if such person directly or indirectly (i) sells, pledges,
encumbers, grants an option with respect to, transfers or otherwise disposes of
such security or any interest therein, or (ii) enters into an agreement or
commitment providing for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or disposition of such security or any
interest therein.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement. The
Stockholder hereby agrees that, at all times during the period commencing with
the execution and delivery of this Agreement until the Expiration Date, the
Stockholder shall not cause or permit any Transfer of any of the Shares to be
effected, or discuss, negotiate or make any offer regarding any Transfer of any
of the Shares, unless each Person to which any such Shares, or any interest
therein, is or may be Transferred shall have (i) executed a counterpart of this
Agreement and a proxy in the form attached hereto as Exhibit A (with such
modifications as Parent may reasonably request), and (ii) agreed in writing to
hold such Shares, or such interest therein, subject to all of the terms and
conditions set forth in this Agreement.
(b) Transfer of Voting Rights. The Stockholder hereby agrees that,
at all times commencing with the execution and delivery of this Agreement until
the Expiration Date, the Stockholder shall not deposit, or permit the deposit
of, any Shares in a voting trust, grant any proxy in respect of the Shares, or
enter into any voting agreement or similar arrangement or commitment in
contravention of the obligations of the Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. Until the Expiration Date, at every meeting
of stockholders of the Company called with respect to any of the following, and
at every adjournment or postponement thereof, and on every action or approval by
written consent of stockholders of the Company with respect to any of the
following, the Stockholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy (as defined in Section 4 hereof), the Shares:
(a) in favor of approval of the Merger and the adoption and approval
of the Reorganization Agreement, and in favor of each of the other actions
contemplated by the Reorganization Agreement and the Proxy and any action
required in furtherance thereof;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions contemplated
by the Reorganization Agreement;
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(c) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by the
Reorganization Agreement): (A) any merger, consolidation, business combination,
sale of assets, reorganization or recapitalization of the Company or any
subsidiary of the Company with any party, (B) any sale, lease or transfer of any
significant part of the assets of the Company or any subsidiary of the Company,
(C) any reorganization, recapitalization, dissolution, liquidation or winding up
of the Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company, or the corporate
structure of the Company or any subsidiary of the Company, or (E) any other
action that 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; and
(d) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of
the Company with or into any other person.
Prior to the Expiration Date, the Stockholder shall not enter into any agreement
or understanding with any person to vote or give instructions in any manner
inconsistent with the terms of this Section 3.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to Parent a proxy in the form attached hereto
as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent
permissible by applicable law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent that, as of the date hereof and at all
times until the Expiration Date, the Stockholder (i) is (and will be, unless
Transferred pursuant to Section 2(a) hereof) the beneficial owner of the shares
of Company Common Stock, and the options, warrants and other rights to purchase
shares of Company Common Stock, set forth on signature page of this Agreement,
with full power to vote or direct the voting of the Shares for and on behalf of
all beneficial owners of the Shares; (ii) the Shares are (and will be, unless
Transferred pursuant to Section 2(a) hereof) free and clear of any liens,
pledges, security interests, claims, options, rights of first refusal, co-sale
rights, charges or other encumbrances of any kind or nature; (iii) does not
beneficially own any securities of the Company other than the shares of Company
Common Stock, and options, warrants and other rights to purchase shares of
Company Common Stock, set forth on the signature page of this Agreement; and
(iv) has (and will have, unless Transferred pursuant to Section 2(a) hereof)
full power and authority to make, enter into and carry out the terms of this
Agreement and the Proxy.
6. Legending of Shares. If so requested by Parent, the Stockholder
hereby agrees that the Shares shall bear a legend stating that they are subject
to this Agreement and to an irrevocable proxy. Subject to the terms of Section 2
hereof, the Stockholder hereby agrees that the Stockholder
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shall not Transfer the Shares without first having the aforementioned legend
affixed to the certificates representing the Shares.
7. Termination. This Agreement shall terminate and be of no further
force or effect as of the Expiration Date.
8. Miscellaneous.
(a) Waiver. No waiver by any party hereto of any condition or any
breach of any term or provision set forth in this Agreement shall be effective
unless in writing and signed by each party hereto. The waiver of a condition or
any breach of any term or provision of this Agreement shall not operate as or be
construed to be a waiver of any other previous or subsequent breach of any term
or provision of this Agreement.
(b) Severability. In the event that any term, provision, covenant or
restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is determined
to be invalid, unlawful, void or unenforceable, shall remain in full force and
effect, shall not be impaired, invalidated or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by
applicable law.
(c) Binding Effect; Assignment. This Agreement and all of the terms
and provisions hereof shall be binding upon, and inure to the benefit of, the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the Stockholder may be assigned to
any other Person without the prior written consent of Parent.
(d) Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
(e) Specific Performance; Injunctive Relief. Each of the parties
hereto hereby acknowledge that (i) the representations, warranties, covenants
and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of Parent and to preserve for Parent the benefits of
the Merger; (ii) such covenants relate to matters which are of a special,
unique, and extraordinary character that gives each such representation,
warranty, covenant and restriction a special, unique, and extraordinary value;
and (iii) a breach of any such representation, warranty, covenant or
restriction, or any other term or provision of this Agreement, will result in
irreparable harm and damages to Parent which cannot be adequately compensated by
a monetary award. Accordingly, Parent and the Stockholder hereby expressly agree
that in addition to all other remedies available at law or in equity, Parent
shall be entitled to the immediate remedy of specific performance, a temporary
and/or permanent restraining order, preliminary injunction, or such other form
of injunctive or equitable relief as may be used by any court of competent
jurisdiction to
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restrain or enjoin any of the parties hereto from breaching any representations,
warranties, covenants or restrictions set forth in this Agreement, or to
specifically enforce the terms and provisions hereof.
(f) Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of the
State of Delaware without giving effect to any choice or conflict of law
provision, rule or principle (whether of the State of Delaware or any other
jurisdiction) that would cause the application of the laws of any jurisdiction
other than the State of Delaware.
(g) Entire Agreement. This Agreement and the Proxy and the other
agreements referred to in this Agreement set forth the entire agreement and
understanding of Parent and the Stockholder with respect to the subject matter
hereof and thereof, and supersede all prior discussions, agreements and
understandings between Parent and the Stockholder, both oral and written, with
respect to the subject matter hereof and thereof.
(h) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
respective parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Parent: Sun Microsystems, Inc.
901 San Antonio Road
Palo Alto, CA 94303
Attention: General Counsel
Telephone No.: (650) 960-1300
Telecopy No.: (650) 336-0530
with a copy to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Attention: Larry W. Sonsini, Esq.
Katharine A. Martin, Esq.
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
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and to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market, Spear Street Tower
Suite 3300
San Francisco, California 94105
Attention: Michael S. Dorf, Esq.
Telephone: (415) 947-2000
Telecopy: (415) 947-2099
If to the Stockholder: To the address for notice set forth on the
signature page hereof.
with a copy to: Cobalt Networks, Inc.
555 Ellis Street
Mountain View, CA 94043
Attention: President
Telephone No.: (650) 623-2500
Telecopy No.: (650) 623-2546
and to: Brobeck, Phleger & Harrison LLP
Two Embarcadero Place
220 Geng Road
Palo Alto, California 94303
Attention: Rod Howard, Esq.
John Montgomery, Esq.
Telephone: (650) 424-0160
Telecopy: (650) 947-2099
(i) Further Assurances. The Stockholder (in his or her capacity as
such) shall execute and deliver any additional certificate, instruments and
other documents, and take any additional actions, as Parent may deem necessary
or desirable, in the reasonable opinion of Parent, to carry out and effectuate
the purpose and intent of this Agreement.
(j) Headings. The section headings set forth in this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement in any manner.
(k) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
duly executed as of the date first written above.
SUN MICROSYSTEMS, INC. STOCKHOLDER:
By: ___________________________________ By: ________________________________
Signature of Authorized Signatory Signature
Name:___________________________________ Name:_______________________________
Title:__________________________________ Title:______________________________
____________________________________
____________________________________
Print Address
____________________________________
Telephone
____________________________________
Facsimile No.
Share beneficially owned:
___________ shares of Company Common
Stock
___________ shares of Company Common
Stock issuable upon the exercise of
outstanding options, warrants or
other rights
* * * * * VOTING AGREEMENT * * * * *
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Cobalt Networks, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of Sun Microsystems,
Inc., a Delaware corporation ("Parent"), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned stockholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the execution of this Proxy by the undersigned, any and all prior
proxies given by the undersigned with respect to any Shares are hereby revoked
and the undersigned hereby agrees not to grant any subsequent proxies with
respect to the Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and between Parent and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger and Reorganization (the
"Reorganization Agreement"), by and among Parent, Blue Acquisition Corporation,
a Delaware corporation and a wholly-owned subsidiary of Parent ("Merger Sub"),
and the Company, which provides for the merger of Merger Sub with and into the
Company in accordance with its terms (the "Merger"). As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Reorganization Agreement shall have been validly terminated pursuant to its
terms, or (ii) such date and time as the Merger shall become effective in
accordance with the terms and conditions set forth in the Reorganization
Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger and the adoption and
approval of the Reorganization Agreement, and in favor of each of the other
actions contemplated by the Reorganization Agreement and any action required in
furtherance thereof;
(ii) against approval of any proposal made in opposition to, or
in competition with, consummation of the Merger and the transactions
contemplated by the Reorganization Agreement;
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(iii) against any of the following actions (other than those
actions that relate to the Merger and the transactions contemplated by the
Reorganization Agreement): (A) any merger, consolidation, business combination,
sale of assets, reorganization or recapitalization of the Company or any
subsidiary of the Company with any party, (B) any sale, lease or transfer of any
significant part of the assets of the Company or any subsidiary of the Company,
(C) any reorganization, recapitalization, dissolution, liquidation or winding up
of the Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company, or the corporate
structure of the Company or any subsidiary of the Company, or (E) any other
action that 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; and
(iv) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
other person, or any consolidation or merger of the Company or any subsidiary of
the Company with or into any other person.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. The undersigned stockholder may vote the
Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: September ____, 2000
Signature of Stockholder: ___________________________
Print Name of Stockholder: __________________________
Shares beneficially owned:
________ shares of the Company Common Stock
________ shares of the Company Common Stock
issuable upon the exercise of outstanding
options, warrants or other rights
