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EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
March ___, 2000, among _______________, Inc., a Delaware corporation ("Parent"),
and the undersigned shareholder and/or option holder (the "Shareholder") of
_______________, Inc., a _______________ corporation (the "Company").
WHEREAS, the Company, Sub (as defined below), Parent and certain other
parties have entered into an Agreement and Plan of Reorganization (the
"Reorganization Agreement"), which provides for the merger of a wholly-owned
subsidiary of Parent ("Sub") into the Company (the "Merger"). Pursuant to the
Merger, all issued and outstanding capital stock of the Company shall be
converted into the right to receive common stock of Parent, as set forth in the
Reorganization Agreement;
WHEREAS, Shareholder 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 shares
subject to outstanding options and warrants as is indicated on the signature
page of this Agreement; and
WHEREAS, in consideration of the execution of the Reorganization
Agreement by Parent, Shareholder (in its, his or her capacity as such) agrees to
vote the Shares (as defined below), and other such shares of capital stock of
the Company over which Shareholder has voting power, so as to facilitate
consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions. Capitalized terms not defined herein shall
have the meanings ascribed to them in the Reorganization Agreement. For purposes
of this Agreement:
(a) "Expiration Date" shall mean the earlier to occur of (i)
such date and time as the Reorganization Agreement shall have been terminated
pursuant to Article VIII thereof, or (ii) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the
Reorganization Agreement.
(b) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(c) "Shares" shall mean: (i) all securities of the Company
(including all shares of Company Capital Stock and all options, warrants and
other rights to acquire shares of Company Capital Stock) owned by Shareholder as
of the date of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Capital Stock and all additional
options, warrants and other rights to acquire shares of Company Capital Stock)
of which Shareholder acquires ownership during the period from the date of this
Agreement through the Expiration Date.
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(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 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 Shares.
(a) Transferee of Shares 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 Shares to be effected unless such Transfer is in accordance with
any affiliate agreement between Shareholder and Parent contemplated by the
Reorganization Agreement and each Person to which any of such Shares, or any
interest in any of such Shares, is or may be transferred shall have: (a)
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 (b)
agreed in writing to hold such Shares (or interest in such Shares) subject to
all of the terms and provisions of this Agreement.
(b) 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 Shares 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 Shares.
3. Agreement to Vote Shares. At every meeting of the Shareholders of
the Company called, and at every adjournment thereof, and on every action or
approval by written consent of the Shareholders of the Company, Shareholder (in
its, his or her capacity as such) shall cause the Shares to be voted in favor of
approval of the Reorganization Agreement and the Merger, in favor of the
automatic conversion of Company Preferred Stock into Company Common Stock
immediately prior to Effective Time, in favor of each of the other transactions
contemplated by the Reorganization Agreement, in favor of any matter that could
reasonably be expected to facilitate the Merger and against any matter that is
inconsistent with the prompt consummation of the Merger and other transactions
contemplated by the Reorganization Agreement.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder 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 law, with respect to the Shares.
5. Irrevocable Election to Conversion. Shareholder hereby agrees and
elects to the automatic conversion immediately prior to Effective Time of the
Shares into Company Common Stock, as appropriate, pursuant to the terms of the
Company's Certificate of Incorporation, which agreement and election shall be
irrevocable to the fullest extent permissible by law.
6. Representations and Warranties of the Shareholder. Shareholder (a)
is the sole beneficial owner of the shares of Company Capital Stock and the
options and warrants to purchase shares of Company Capital Stock indicated on
the final page of this Agreement, free and clear of any liens, claims, options,
rights of first refusal (except as may be held by the Company), co-sale rights,
charges or other encumbrances; (b) does not beneficially own any securities of
the Company other than the shares of Company Capital Stock and options and
warrants to purchase shares of Company Capital Stock indicated on the final page
of this Agreement; and (c) has full power and authority to make, enter into and
carry out the terms of this Agreement and the Proxy.
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7. Additional Documents. Shareholder (in its, his or her capacity as
such) hereby covenants and agrees to execute and deliver any additional
documents necessary or desirable, in the reasonable opinion of Parent, to carry
out the intent of this Agreement.
8. Consent and Waiver. Shareholder (not in its, his or her capacity as
a director or officer of the Company) hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of
any agreements to which Shareholder is a party or pursuant to any rights
Shareholder may have.
9. Legending of Shares. If so requested by Parent, Shareholder 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,
Shareholder agrees that Shareholder shall not Transfer the Shares without first
having the aforementioned legend affixed to the certificates representing the
Shares.
10. Termination. This Agreement shall terminate and shall have no
further force or effect on such date and time as the Reorganization Agreement
shall have been terminated pursuant to Article VIII thereof.
11. Miscellaneous.
(a) Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) Binding Effect and Assignment. This Agreement and all of
the 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 parties hereto may be assigned by
either of the parties without prior written consent of the other.
(c) Amendments and Modification. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) Waiver. No waiver, alteration or modification of any of
the provisions of this Agreement shall be binding unless in writing and signed
by duly authorized representatives of the parties hereto. No failure or delay by
any party in executing any right, power or privilege hereunder shall operate as
a waiver hereof, nor shall any single or partial exercise hereof preclude any
other or future exercise hereof or the exercise of any other right, power or
privilege hereof.
(e) Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Shareholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any such
violation, Parent shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Parent at law or in equity.
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(f) 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
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Parent: ------------------------------------
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Attention: General Counsel
Telephone:
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Facsimile:
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With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx Xxxxx, Esq.
Xxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to Shareholder: To the address for notice set forth on the
signature page hereof.
(g) Governing Law. This Agreement shall be governed by the laws
of the State of Delaware, without reference to rules of conflicts of law.
(h) Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(i) Effect of Headings. The Section headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(j) Facsimile; Counterparts. This Agreement may be executed by
facsimile and in several counterparts, each of which shall be an original, but
all of which together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
E.piphany, Inc.
By:
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Name:
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Title:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
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SHAREHOLDER:
By:
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Name:
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Title:
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Address:
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Phone:
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Facsimile:
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Shares beneficially owned:
shares of Company Common Stock
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shares of Company Common Stock issuable upon exercise of
outstanding options or warrants
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shares of Company Series A Preferred Stock
shares of Company Series A Preferred Stock issuable upon
exercise of outstanding warrants
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shares of Company Series B Preferred Stock
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shares of Company Series B Preferred Stock issuable upon
exercise of outstanding warrants
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shares of Company Series C Preferred Stock
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shares of Company Series C Preferred Stock issuable upon
exercise of outstanding warrants
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[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Shareholder of _______________, a Delaware corporation
(the "Company"), hereby irrevocably (to the fullest extent permitted by law)
appoints ____________, ____________ and ____________, 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 Shareholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned 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 among _______________, a Delaware
corporation ("Parent") and the undersigned Shareholder (the "Voting Agreement"),
and is granted in consideration of Parent entering into that certain Agreement
and Plan of Reorganization (the "Reorganization Agreement"), among Parent,
_______________ Acquisition Corporation, a Delaware corporation and a
wholly-owned subsidiary of Parent ("Sub"), and the Company. The Reorganization
Agreement provides for the merger of 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 Article VIII thereof or
(ii) such date and time as the Merger shall become effective in accordance with
the terms and provisions of the Reorganization Agreement. Capitalized terms not
defined herein shall have the meanings ascribed to them 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 or adjourned meeting of Shareholders
of the Company and in every written consent in lieu of such meeting in favor of
approval of the Reorganization Agreement and the Merger, in favor of the
automatic conversion of Company Preferred Stock into Company Common Stock
immediately prior to Effective Time, in favor of each of the other transactions
contemplated by the Reorganization Agreement, in favor of any matter that could
reasonably be expected to facilitate the Merger and against any matter that is
inconsistent with the prompt consummation of the Merger or other transactions
contemplated by the Reorganization Agreement.
The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned Shareholder 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.
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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: , 1999
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SHAREHOLDER
By:
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Name:
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Title:
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Shares beneficially owned:
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shares of the Company Common Stock
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shares of the Company Common Stock issuable upon
exercise of outstanding options or warrants
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shares of the Company Series A Preferred Stock
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shares of the Company Series A Preferred Stock
issuable upon exercise of outstanding warrants
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shares of the Company Series B Preferred Stock
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shares of the Company Series B Preferred Stock
issuable upon exercise of outstanding warrants
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shares of the Company Series C Preferred Stock
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shares of the Company Series C Preferred Stock
issuable upon exercise of outstanding warrants
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