Exhibit 99.3
EXHIBIT 99.3
FORM OF VOTING AGREEMENT
This COMPANY VOTING AGREEMENT, is dated as of April 5, 2002, by and between
divine, inc., a Delaware corporation ("Parent"), and the undersigned holder of
shares of common stock, ________________ ("Stockholder"), par value $0.001 per
share ("Company Common Stock"), of Viant Corporation, a Delaware corporation
("Company").
WHEREAS, in order to induce Parent and DVC Acquisition Company, a Delaware
corporation, to enter into an Agreement and Plan of Merger and Reorganization,
dated as of the date hereof (the "Merger Agreement"), with Company, Parent has
requested Stockholder and Stockholder has agreed, to enter into this Voting
Agreement with respect to the shares of Company Common Stock beneficially owned
by Stockholder, and any shares of Company Common Stock hereafter acquired by
Stockholder upon the exercise of Company Options (collectively, the "Covered
Shares") so as to facilitate the consummation of the Merger.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
GRANT OF PROXY AND VOTING AGREEMENT
SECTION 1.1. VOTING AGREEMENT. In the event that any stockholder action is
to be taken at any time prior to the Expiration Date (as defined below) with
respect to the approval and adoption of the Merger Agreement and the Merger,
whether by written consent, vote of the stockholders of the Company at a meeting
or otherwise, Stockholder agrees to vote all of the Covered Shares in favor of
the approval and adoption of the Merger Agreement and the Merger. Stockholder
hereby agrees that Stockholder will not vote any Covered Shares in favor of the
approval of any (i) Company Acquisition Proposal or (ii) corporate action the
consummation of which would frustrate the purposes of, or prevent or delay the
consummation of the Merger or other transactions contemplated by the Merger
Agreement.
SECTION 1.2. IRREVOCABLE PROXY. Stockholder hereby revokes any and all
previous proxies granted with respect to the Covered Shares. By entering into
this Voting Agreement, Stockholder hereby grants a proxy appointing Parent, and
each duly elected officer thereof, as such Stockholder's attorney-in-fact and
proxy, with full power of substitution, for and in such Stockholder's name, to
vote, express, consent or dissent, or otherwise to utilize such voting power as
Parent or its proxy or substitute shall, in Parent's sole discretion, deem
proper with respect to the Covered Shares to effect any action described in
Section 1.1 above, including, without limitation, the right to sign its name (as
Stockholder) to any consent, certificate or other document relating to Company
that the law of the State of Delaware may permit or require in furtherance of
the approval and adoption of the Merger, the Merger Agreement, and the
transactions contemplated thereby, or with respect to any other proposed Company
Acquisition Proposal. Stockholder retains the right to vote or otherwise utilize
its voting power for all purposes not inconsistent with this Section 1.2. The
proxy granted by Stockholder pursuant to this Article I is irrevocable for the
term of this Voting Agreement and is granted in consideration of Parent entering
into this Voting Agreement and the Merger Agreement, and incurring certain
related fees and expenses.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder represents and warrants to Parent that:
SECTION 2.1. AUTHORIZATION. This Voting Agreement has been duly executed
and delivered by and the consummation of the transactions contemplated hereby
are within the powers of Stockholder. If this Voting Agreement is being executed
in a representative or fiduciary capacity, the person signing this Voting
Agreement has full power and authority to enter into and perform this Voting
Agreement. The obligations under this Voting Agreement constitute the legal,
valid and binding obligations of Stockholder.
SECTION 2.2. OWNERSHIP OF COVERED SHARES. Stockholder is the beneficial
owner of the Covered Shares, free and clear of any Encumbrance and any other
limitation or restriction that, in each case, would deprive Parent of the
benefits of this Agreement. None of the Covered Shares is subject to any voting
trust or other agreement or arrangement with respect to the voting of the
Covered Shares. As of the date hereof, Stockholder possesses the sole and
exclusive right to vote all of the Covered Shares in any vote of the
stockholders of the Company.
SECTION 2.3. TOTAL SHARES. Except for the shares of Company Common Stock
indicated on the signature page to this Agreement, Stockholder does not
beneficially own any (i) shares of capital stock or voting securities of
Company, (ii) securities of Company convertible into or exchangeable for shares
of capital stock or voting securities of the Company or (iii) options or other
rights to acquire from Company any capital stock, voting securities or
securities convertible into or exchangeable for capital stock or voting
securities of Company. If Stockholder acquires any additional shares of Company
Common Stock after the date hereof and prior to the record date of the
stockholder meeting of the Company, Stockholder will notify Parent in writing
within two business days of such acquisition.
ARTICLE III
COVENANTS OF STOCKHOLDER
Stockholder hereby covenants and agrees that:
SECTION 3.1. NO PROXIES FOR OR ENCUMBRANCES ON COVERED SHARES. Except
pursuant to the terms of this Voting Agreement, Stockholder shall not, without
prior written consent of Parent or except as required by court order or
operation of law, directly or indirectly, (i) grant any proxies or enter into
any voting trust or other agreement or arrangement with respect to the voting of
any Covered Shares with respect to any matter described in Section 1.1 of this
Voting Agreement or (ii) sell, assign, transfer, encumber or otherwise dispose
of, or enter into any contract, option or other arrangement or understanding
with respect to the direct or indirect sale, assignment, transfer, encumbrance
or other disposition of, any Covered Shares during the term of this Voting
Agreement other than pursuant to the Merger, unless each person to which any
such Covered Shares or any interest in any of such Covered Shares is or may be
sold, assigned, transferred, encumbered or disposed of shall have (i) executed a
counterpart of this Agreement and (ii) agreed to hold such Covered Shares and
interest in such Covered Shares subject to all of the terms and provisions of
this Agreemen Stockholder shall not seek or solicit any such sale, assignment,
transfer, encumbrance of other disposition or any such contract, option or
other arrangement or understanding except as permitted by this Section 3.1.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Stockholder that:
SECTION 4.1. AUTHORIZATION. This Voting Agreement has been duly executed
and delivered by, and the consummation of the transactions contemplated hereby
are within the powers of Parent. Parent has full power and authority to enter
and perform this Voting Agreement. The obligations under this Voting Agreement
constitute the legal, valid and binding obligations of Parent.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. TERMINATION. This Voting Agreement shall terminate and be of
no further force or effect upon the earlier to occur of (i) such date and time
of the termination of the Merger Agreement pursuant to Article VIII thereof or
(ii) such time as the Merger shall have become effective in accordance with the
terms of the Merger Agreement (the "Expiration Date").
SECTION 5.2. FURTHER ASSURANCES. Parent and Stockholder will each execute
and deliver, or cause to be executed and delivered, all further documents and
instruments and use all reasonable efforts to take, or cause to be taken, all
actions and to do, or cause to be done, all things necessary, proper or
advisable under applicable laws and regulations, to consummate and make
effective the transactions contemplated by this Voting Agreement.
SECTION 5.3. AMENDMENTS. Any provision of this Voting Agreement may be
amended or waived if, but only if, such amendment or waiver in writing is
signed, in the case of an amendment, by each party to this Voting Agreement or
in the case of a waiver, by the party against whom the waiver is to be
effective.
SECTION 5.4. DUTIES AS DIRECTOR OR OFFICER. Nothing contained in this
Voting Agreement shall be deemed to restrict Stockholder from taking actions in
his 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 Company) or voting in Stockholder's sole discretion on any matter
other than those matters referred to in Section 1.1.
SECTION 5.5. EXPENSES. All costs and expenses incurred in connection with
this Voting Agreement shall be paid by the party incurring such cost or expense,
except that Company may pay the reasonable costs and expenses incurred by
Company legal counsel on behalf of Stockholder.
SECTION 5.6. PARTIES IN INTEREST; SUCCESSORS AND ASSIGNS. The provisions
of this Voting Agreement shall be binding upon, inure to the benefit of, and be
enforceable by, each party hereto and their respective heirs, beneficiaries,
executors, representatives, successors and assigns; provided that no party may
assign, delegate or otherwise transfer any of its rights or obligations under
this Voting Agreement without the prior written consent of the other party
hereto, except that Parent may transfer or assign its rights and obligations to
any affiliate of Parent. Nothing in this Voting Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Voting Agreement.
SECTION 5.7. GOVERNING LAW. This Voting Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
SECTION 5.8. CONSENT TO JURISDICTION. Each of Parent and Stockholder
hereby irrevocably submits in any suit, action or proceeding arising out of or
related to this Voting Agreement or any other instrument, document or agreement
executed or delivered in connection herewith and the transactions
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contemplated hereby and thereby, whether arising in contract, tort, equity or
otherwise, to the exclusive jurisdiction of any state or federal court located
in the State of Delaware and waives any and all objections to jurisdiction that
it may have under the laws of the United States or of any state. Each of Parent
and Stockholder waives any objection that it may have (including, without
limitation, any objection of the laying of venue or based on FORUM NON
CONVENIENS) to the location of the court in any proceeding commenced in
accordance with this Section 5.8.
SECTION 5.9. COUNTERPARTS; EFFECTIVENESS. This Voting Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instruments. This Voting Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by the other party hereto.
SECTION 5.10. SEVERABILITY. If any term, provision or covenant of this
Voting Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Voting Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
SECTION 5.11. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Voting
Agreement is 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 to which they are entitled at law or in equity
without the posting of a bond or other security.
SECTION 5.12. CAPITALIZED TERMS. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Merger Agreement.
SECTION 5.13. NO STRICT CONSTRUCTION. The language used in this Voting
Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be used
against any person hereto.
SECTION 5.14 NOTICE. Any notice, request, instruction or other document to
be given hereunder by any party to the other party shall be deemed delivered
upon actual receipt and shall be in writing and delivered personally or sent by
registered or certified mail, postage prepaid, reputable overnight courier, or
by facsimile transmission (with a confirming copy sent by reputable overnight
courier), as follows:
If to Parent:
divine, inc.
0000 Xxxxx Xxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxx 00000
Attention: Xxxx Xxxxxxxx
Facsimile: (000) 000-0000
With a copy to:
Xxxxxx Xxxxxx Xxxxx Xxxxxxxx
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxx
Facsimile: (000) 000-0000
If to Stockholder: To the address for notice set forth on the signature
page hereof.
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With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
SECTION 5.15 PERMITTED TRANSFERS. Nothing in this Agreement shall be
construed to require Stockholder to exercise any option, warrant or other right
to acquire Company Common Stock, and nothing in this Agreement shall be
construed to prohibit Stockholder from engaging in a net exercise of any option,
warrant or other right to acquire Company Common Stock (if the contractual terms
of such option, warrant, or other right currently permit such a net exercise).
[END OF DOCUMENT;
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have cause this Voting Agreement to
be duly executed as of the day and year first above written.
DIVINE, INC.
By:
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Name:
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Title:
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STOCKHOLDER:
By:
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Name:
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Title:
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Print Address
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Print Telephone
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Print Fascimile
Shares beneficially owned:
shares of Company Common Stock
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shares of Company Common Stock
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issuable upon exercise of
outstanding options or warrants
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