Exhibit 10.1
FORM OF VOTING AGREEMENT
THIS VOTING
AGREEMENT (this “ Agreement ”) is made and
entered into as of June 2, 2005, by and among Sun
Microsystems, Inc., a Delaware corporation (“ Parent
”), Storage Technology Corporation, a Delaware corporation
(the “ Company ”), and the undersigned
stockholder (“ Stockholder ”) of the
Company.
RECITALS
A. Concurrently
with the execution of this Agreement, Parent, Stanford Acquisition
Corporation, a Delaware corporation and a wholly owned subsidiary
of Parent (“ Merger Sub ”), and the Company have
entered into an Agreement and Plan of Merger (the “ Merger
Agreement ”), which provides for the merger (the “
Merger ”) of Merger Sub with and into the
Company.
B. Pursuant
to the Merger, all of the issued and outstanding shares of capital
stock of the Company will be canceled and converted into the right
to receive the consideration set forth in the Merger Agreement, all
upon the terms and subject to the conditions set forth in the
Merger Agreement.
C. In order
to induce Parent to execute the Merger Agreement, Stockholder
desires to vote the Shares, or any other shares of capital stock of
the Company acquired by Stockholder hereafter and prior to the
Expiration Date (as defined in Section 1(b) hereof) so
as to facilitate the consummation of the Merger. The execution and
delivery of this Agreement and of the attached form of proxy is a
material condition to Parent’s willingness to enter into the
Merger Agreement.
NOW, THEREFORE,
the parties hereto hereby agree as follows:
1.
Certain Definitions . Capitalized terms not defined
herein shall have the meanings ascribed to them in the Merger
Agreement. For purposes of this Agreement:
(a) A
Person shall be deemed to “ Beneficially Own ” a
security if such Person, directly or indirectly, through any
contract, arrangement, understanding, relationship, or otherwise,
has or shares: (i) voting power, which includes the power to
vote, or to direct the voting of, such security; and/or
(ii) investment power, which includes the power to dispose, or
to direct the disposition of, such security.
(b)
“ Expiration Date ” shall mean the earlier to
occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger
Agreement, or (ii) such date and time as the Merger Agreement shall
have been validly terminated pursuant to Article VII
thereof.
(c)
“ Options ” shall mean all securities
Beneficially Owned by Stockholder that are convertible into, or
exercisable or exchangeable for, shares of capital stock of
the
Company, including options,
warrants and other rights to acquire shares of Company Common Stock
or other shares of capital stock of the Company.
(d)
“ Person ” shall mean any (i) individual,
(ii) corporation, limited liability company, partnership or
other entity, or (iii) governmental authority.
(e)
“ Shares ” shall mean all shares of capital
stock of the Company Beneficially Owned by Stockholder, including
all shares of capital stock of the Company of which Stockholder
acquires Beneficial Ownership during the period from the date of
this Agreement through the Expiration Date, including, without
limitation, shares issued or issuable upon the conversion, exercise
or exchange, as the case may be, of Options.
(f)
“ Tender ” shall mean, with respect to any
security, the direct or indirect assignment, sale, transfer or
tender of such security or any right, title or interest therein to
any Person or “group” (as defined in
Section 13(d)(3) of the Securities Exchange Act of 1934)
advocating or making any proposal in opposition to, or in
competition with, consummation of the Merger and the transactions
contemplated by the Merger Agreement.
2. No
Tender of Shares or Options . Stockholder agrees that, at
all times during the period beginning on the date hereof and ending
on the Expiration Date, Stockholder shall not cause or permit any
Tender of any Shares or Options, or make any agreement relating
thereto.
3. No
Transfer of Voting Rights . Stockholder agrees that, during
the period from the date of this Agreement through the Expiration
Date, Stockholder shall not deposit (or permit the deposit of) any
Shares or Options in a voting trust or grant any proxy or enter
into any voting agreement or similar agreement in contravention of
the obligations of Stockholder under this Agreement with respect to
any of the Shares or Options.
4.
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,
Stockholder shall vote, to the extent not voted by the Person(s)
appointed under the Proxy (as defined below), the Shares or cause
the Shares to be voted:
(i) in
favor of adoption and approval of the Merger Agreement, in favor of
approval of the Merger and its principal terms and in favor of each
of the other actions contemplated by the Merger Agreement and the
Proxy 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 Merger Agreement, and against any action or agreement that
would result in a breach of any representation, warranty, covenant,
agreement or other obligation of the Company in the Merger
Agreement; and
2
(iii) against
any of the following actions (other than those actions that relate
to the Merger and the transactions contemplated by the Merger
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, license 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 Merger Agreement.
Prior to the
Expiration Date, Stockholder shall not enter into any agreement or
understanding with any person to vote or give instructions in any
manner inconsistent with this Section 4 .
5.
Irrevocable Proxy . Concurrently with the execution
of this Agreement, Stockholder agrees to deliver to Parent an
irrevocable proxy in the form attached hereto as
Exhibit A (the “ Proxy ”), which
shall be irrevocable to the fullest extent permitted by applicable
law, covering the total number of Shares, and shall automatically
terminate upon the Expiration Date.
6.
Representations, Warranties and Covenants of
Stockholder . Stockholder represents, warrants and
covenants to Parent as follows:
(i) Stockholder
has the full power to vote or direct the voting of the Shares for
and on behalf of all beneficial owners of the Shares.
(ii) As
of the date hereof, the Shares are, and at all times up until the
Expiration Date the Shares will be, free and clear of any rights of
first refusal, co-sale rights, security interests, liens, pledges,
claims, options, charges or other encumbrances of any kind or
nature, in each case that would impair Stockholder’s ability
to fulfill its obligations under Section 4 . The
execution and delivery of this Agreement by Stockholder do not, and
Stockholder’s performance of its obligations under this
Agreement will not conflict with or violate any order, decree,
judgment or agreement applicable to Stockholder or by which
Stockholder or any of Stockholder’s properties or Shares is
bound.
(iii) Stockholder
has full power and authority to make, enter into and carry out the
terms of this Agreement, the Proxy and any other related agreements
to which Stockholder is a party.
(iv) Stockholder
agrees that it will not bring, com
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