Exhibit 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of March 1, 1998, by and
between SCOPUS TECHNOLOGY, INC. a California corporation ("COMPANY"), SIEBEL
SYSTEMS, INC., a Delaware corporation, and ___________________________
("SHAREHOLDER").
RECITALS
WHEREAS, Shareholder is a stockholder of Parent.
WHEREAS, Parent, Syracuse Acquisition Sub, Inc., a California
corporation and a wholly-owned subsidiary of Parent ("MERGER SUB"), and the
Company, are entering into an Agreement and Plan of Merger and Reorganization of
even date herewith (the "MERGER AGREEMENT") which provides (subject to the
conditions set forth therein) for the merger of Merger Sub with and into the
Company (the "MERGER").
NOW, THEREFORE, in order to induce Company to enter into the Merger
Agreement and consummate the transactions contemplated thereby, and for other
valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by Shareholder), Shareholder hereby covenants and agrees as
follows:
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement:
(a) "PARENT COMMON STOCK" shall mean the common stock, par value $.001
per share, of Parent.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon which
the Merger Agreement is validly terminated pursuant to Section 8 thereof, or
(ii) the date upon which the Merger becomes effective in accordance with the
terms and provisions of the Merger Agreement.
(c) Shareholder shall be deemed to "OWN" or to have acquired "OWNERSHIP"
of a security if Shareholder is the "beneficial owner" (within the meaning of
Rule 13d-3 under the Securities Exchange Act of 1934) of such security by virtue
of Shareholder, directly or indirectly, having or sharing voting power over such
security.
(d) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
1.
(e) "SUBJECT SECURITIES" shall mean: (i) all securities of Parent
(including all shares of Parent Common Stock and all options, warrants and other
rights to acquire shares of Parent Common Stock) Owned by Shareholder as of the
date of this Agreement; and (ii) all additional securities of Parent (including
all additional shares of Parent Common Stock and all additional options,
warrants and other rights to acquire shares of Parent Common Stock) of which
Shareholder acquires Ownership during the period from the date of this Agreement
through the Expiration Date.
(f) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; 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 SUBJECT SECURITIES.
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Shareholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Shareholder shall not cause or permit any Transfer
of any of the Subject Securities to be effected unless (i) such Transfer is in
accordance with any affiliate agreement between Shareholder of even date
herewith to which such Shareholder is bound ("AFFILIATE AGREEMENT") and (ii) in
the case of any transfer, directly or indirectly, to any member of Shareholder's
family, trust for the benefit of Shareholder or any member of Shareholder's
family or and any entity beneficially owned by any such Persons, each Person to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a counterpart of
this Agreement (with such modifications as Company may reasonably request); and
(b) agreed in writing to hold such Subject Securities (or interest in such
Subject Securities) subject to all of the terms and provisions of this
Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during the period
from the date of this Agreement through the Expiration Date, Shareholder shall
not deposit (or permit the deposit of) any Subject Securities in a voting trust
or grant any proxy or enter into any voting agreement or similar agreement in
contravention of the obligations of Shareholder under this Agreement with
respect to any of the Subject Securities.
3. VOTING OF SHARES.
3.1 VOTING AGREEMENT. Shareholder agrees that, during the period from the
date of this Agreement through the Expiration Date:
(a) at any meeting of shareholders of Parent, however called, and at
every adjournment thereof, Shareholder shall (unless otherwise directed in
writing by Company) cause all outstanding shares of Parent Common Stock that are
Owned by Shareholder as of the record date fixed for such meeting to be voted in
favor of the issuance of Parent Common Stock in connection with the Merger, and
in favor of each of the other actions contemplated by the Merger Agreement; and
2.
(b) in the event written consents are solicited or otherwise sought
from shareholders of Parent with respect to the approval or adoption of the
Merger Agreement, with respect to the approval of the Merger or with respect to
any of the other actions contemplated by the Merger Agreement, Shareholder shall
(unless otherwise directed in writing by Company) cause to be executed, with
respect to all shares of Parent Common Stock that are Owned by Shareholder as of
the record date fixed for the consent to the proposed action, a written consent
or written consents to such proposed action.
4. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER.
Shareholder hereby represents and warrants to Company as follows:
4.1 AUTHORIZATION, ETC. Shareholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy and to perform his obligations hereunder and thereunder. This
Agreement and the Proxy have been duly executed and delivered by Shareholder and
constitute legal, valid and binding obligations of Shareholder, enforceable
against Shareholder in accordance with their terms, subject to (i) laws of
general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
4.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement and the Proxy by
Shareholder do not, and the performance of this Agreement and the Proxy by
Shareholder will not: (i) conflict with or violate any order, decree or judgment
applicable to Shareholder or by which he or any of his properties is or may be
bound or affected; or (ii) result in or constitute (with or without notice or
lapse of time) any breach of or default under, or give to any other Person (with
or without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any encumbrance or restriction on any of the Subject
Securities pursuant to, any contract to which Shareholder is a party or by which
Shareholder or any of his affiliates or properties is or may be bound or
affected.
(b) The execution and delivery of this Agreement and the Proxy by
Shareholder do not, and the performance of this Agreement and the Proxy by
Shareholder will not, require any consent or approval of any Person.
4.3 TITLE TO SECURITIES. As of the date of this Agreement: (a) Shareholder
holds of record (free and clear of any encumbrances or restrictions that will
restrict or interfere in any way with the actions contemplated hereby or
Shareholder's obligations hereunder) the number of outstanding shares of Parent
Common Stock set forth under the heading "Shares Held of Record" on the
signature page hereof; (b) Shareholder holds (free and clear of any encumbrances
or restrictions that will restrict or interfere in any way with the actions
contemplated hereby or Shareholder's obligations hereunder) the options,
warrants and other rights to acquire shares of Parent Common Stock set forth
under the heading "Options and Other Rights" on the signature page hereof; (c)
Shareholder Owns the additional securities of Parent set forth under the heading
3.
"Additional Securities Beneficially Owned" on the signature page hereof; and (d)
Shareholder does not directly or indirectly Own any shares of capital stock or
other securities of Parent, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any shares of capital stock or other
securities of Parent, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
4.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Expiration
Date and will be accurate in all respects as of the date of the consummation of
the Merger as if made on that date except that Shareholder's beneficial or
record ownership of securities as represented in Section 6.3 hereof may differ
as of the Expiration Date in the event of acquisitions or Transfers of
securities not prohibited by the terms of this Agreement.
5. MISCELLANEOUS.
5.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Shareholder in
this Agreement shall survive the Expiration Date.
5.2 INDEMNIFICATION. Parent shall hold harmless and indemnify Company and
Company's affiliates from and against, and shall compensate and reimburse
Company and Company's affiliates for, any loss, damage, claim, liability, fee
(including reasonable attorneys' fees), demand, cost or expense (regardless of
whether or not such loss, damage, claim, liability, fee, demand, cost or expense
relates to a third-party claim) that is directly or indirectly suffered or
incurred by Company or any of Company's affiliates, or to which Company or any
of Company's affiliates otherwise becomes subject, and that arises directly or
indirectly from, or relates directly or indirectly to any inaccuracy in or
breach of any representation, warranty, covenant or obligation of Shareholder
contained in this Agreement or in the Proxy.
5.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
5.4 NOTICES. Any notice or other communication required or permitted to be
delivered under this Agreement shall be in writing and shall be deemed properly
delivered, given and received when delivered (by hand, by registered mail, by
courier or express delivery service or by facsimile confirmation obtained) to
the address or facsimile telephone number set forth beneath the name of such
party below (or to such other address or facsimile telephone number as such
party shall have specified in a written notice given to the other party):
IF TO SHAREHOLDER:
at the address or facsimile phone number set forth below Shareholder's
signature on the signature page hereof
WITH A COPY TO:
4.
Xxxxxx Godward LLP
0000 Xxxx Xxxx Xxxx
Xxxxxxxx 0, Xxxxx 000
Xxxxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxx
Fax: (000) 000-0000
IF TO COMPANY:
SCOPUS TECHNOLOGY, INC.
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Attn: Xxx Xxxxxx
Fax: (000) 000-0000
WITH A COPY TO:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxx, Esq.
Fax: (000) 000-0000
5.5 SEVERABILITY. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
5.6 ENTIRE AGREEMENT. This Agreement, the Proxy, and any other documents
delivered by the parties in connection herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto.
5.7 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Shareholder and any attempted or purported assignment or delegation
of any of such interests or obligations shall be void. Subject to the preceding
sentence, this Agreement shall be binding upon Shareholder and his heirs,
estate, executors, personal representatives, successors and assigns, and shall
inure
5.
to the benefit of Company and its successors and assigns. This Agreement
shall be binding upon any Person to whom any Subject Securities are transferred
to the extent provided in Section 2 hereof. Nothing in this Agreement is
intended to confer on any Person (other than Company and its successors and
assigns) any rights or remedies of any nature.
5.8 SPECIFIC PERFORMANCE. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or the Proxy was
not performed in accordance with its specific terms or was otherwise breached.
Shareholder agrees that, in the event of any breach or threatened breach by
Shareholder of any covenant or obligation contained in this Agreement or in the
Proxy, Company shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek and obtain (a) a decree or
order of specific performance to enforce the observance and performance of such
covenant or obligation, and (b) an injunction restraining such breach or
threatened breach.
5.9 NON-EXCLUSIVITY. The rights and remedies of Company under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Nothing in this Agreement shall limit
any of Shareholder's obligations, or the rights or remedies of Company, under
any Affiliate Agreement between Company and Shareholder; and nothing in any such
Affiliate Agreement shall limit any of Shareholder's obligations, or any of the
rights or remedies of Company, under this Agreement.
5.10 GOVERNING LAW. This Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws).
5.11 COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
5.12 CAPTIONS. The captions contained in this Agreement are for convenience
of reference only, shall not be deemed to be a part of this Agreement and shall
not be referred to in connection with the construction or interpretation of this
Agreement.
5.13 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against Shareholder, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
5.14 WAIVER. No failure on the part of Company to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Company in exercising any power, right, privilege or remedy under this
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Company shall not be deemed to have waived any claim
available to Company arising out of this Agreement, or any power, right,
privilege or remedy of Company
6.
under this Agreement, unless the waiver of such claim, power, right, privilege
or remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of Company; and any such waiver shall not be applicable or
have any effect except in the specific instance in which it is given.
[THIS SPACE INTENTIONALLY LEFT BLANK]
7.
IN WITNESS WHEREOF, the undersigned have caused this VOTING AGREEMENT to be
executed as of the date first written above.
SCOPUS TECHNOLOGY, INC.
By:_______________________________
Title:____________________________
SIEBEL SYSTEMS, INC.
By:_______________________________
Title:____________________________
SHAREHOLDER
__________________________________
Name:
Address:__________________________
__________________________________
__________________________________
Facsimile:________________________
Additional Securities
Shares Held of Record Options and Other Rights Beneficially Owned
-------------------- ------------------------ ------------------
8.
