VOTING AGREEMENT
THIS VOTING AGREEMENT ("Agreement") is entered into as of October 2, 2005,
by and between SYNOPSYS, Inc., a Delaware corporation ("Parent"), and
____________________ ("Stockholder").
RECITALS
A. Stockholder is a holder of record and the "beneficial owner" (within
the meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of certain
shares of common stock of HPL Technologies, Inc., a Delaware corporation (the
"Company").
B. Parent, Snap Acquisition, Inc., a Delaware corporation ("Acquisition
Sub"), and the Company are entering into an Agreement of Merger of even date
herewith (the "Merger Agreement") which provides (subject to the conditions set
forth therein) for the merger of Acquisition Sub into the Company (the
"Merger").
C. In the Merger, each outstanding share of common stock of the Company
is to be converted into the right to receive $0.30 in cash.
D. Stockholder is entering into this Agreement in order to induce
Parent to enter into the Merger Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) "Company Common Stock" shall mean the common stock, par value $0.001 per
share, of the Company.
(b) Stockholder shall be deemed to "Own" or to have acquired "Ownership" of a
security if Stockholder: (i) is the record owner of such security; or (ii) is
the "beneficial owner" (within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of such security.
(c) "Person" shall mean any (i) individual, (ii) corporation, limited liability
company, partnership or other entity, or (iii) governmental authority.
(d) "Proxy Expiration Date" shall mean the earlier of (i) the date upon which
the Merger Agreement is terminated, or (ii) the date upon which the Merger
becomes effective.
(e) "Subject Securities" 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 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 Stockholder acquires Ownership during the period from the date of this
Agreement through the Proxy Expiration Date.
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(f) "Subject Shares" shall mean: (i) all shares of Company Common Stock Owned by
Stockholder as of the date of this Agreement; (ii) all additional shares of
Company Common Stock of which Stockholder acquires Ownership during the period
from the date of this Agreement through the Proxy Expiration Date; and (iii) all
securities into which any of the shares of Company Common Stock described in
clause "(i)" or clause "(ii)" above are exchanged or converted.
(g) 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 to any Person other than Parent; (ii) enters into an agreement
or commitment contemplating the possible sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein to any Person other than Parent; or (iii) reduces such
Person's beneficial ownership of, interest in or risk relating to such security.
The exercise of an option to purchase shares of Company Common Stock is not a
Transfer for purposes of this Agreement.
(h) Capitalized terms used but not otherwise defined in this Agreement have the
meanings assigned to such terms in the Merger Agreement.
SECTION 2. TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS
2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3,
during the period from the date of this Agreement through the Proxy Expiration
Date, Stockholder shall not, directly or indirectly, cause or permit any
Transfer of any of the Subject Securities to be effected.
2.2 Restriction on Transfer of Voting Rights. During the period from the date of
this Agreement through the Proxy Expiration Date, Stockholder shall ensure that:
(a) none of the Subject Securities is deposited into a voting trust; and (b) no
proxy is granted, and no voting agreement or similar agreement is entered into,
with respect to any of the Subject Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Subject
Securities by Stockholder (a) if Stockholder is an individual (i) to any member
of Stockholder's immediate family, or to a trust for the benefit of Stockholder
or any member of Stockholder's immediate family, or (ii) upon the death of
Stockholder, or (b) if Stockholder is a partnership or limited liability
company, to one or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder; provided, however, that a
transfer referred to in this sentence shall be permitted only if, as a
precondition to such transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Parent, to be bound by all of the terms of
this Agreement.
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SECTION 3. VOTING OF SHARES
3.1 Voting Covenant. Stockholder hereby agrees that, prior to the Proxy
Expiration Date, at any meeting of the stockholders of the Company, however
called, and in any written action by consent of stockholders of the Company,
unless otherwise directed in writing by Parent, Stockholder shall cause the
Subject Securities to be voted:
(a) in favor of the Merger, the execution and delivery by the Company of the
Merger Agreement and the adoption and approval of the Merger Agreement and the
terms thereof, in favor of each of the other actions contemplated by the Merger
Agreement and in favor of any action in furtherance of any of the foregoing;
(b) against any action or agreement that would result in a breach of any
representation, warranty, covenant or obligation of the Company in the Merger
Agreement; and
(c) against the following actions (other than the Merger and the transactions
contemplated by the Merger Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any subsidiary of the Company; (B) any sale, lease,
sublease, license, sublicense or transfer of a material portion of the rights or
other assets of the Company or any subsidiary of the Company; (C) any
reorganization, recapitalization, dissolution or liquidation of the Company or
any subsidiary of the Company; (D) any change in a majority of the board of
directors of the Company; (E) any amendment to the Company's certificate of
incorporation or bylaws; (F) any material change in the capitalization of the
Company or the Company's corporate structure; and (G) any other action which is
intended, or would 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 or this Agreement.
Prior to the Proxy Expiration Date, Stockholder shall not enter into any
agreement or understanding with any Person to vote or give instructions in any
manner inconsistent with clause "(a)", clause "(b)" or clause "(c)" of the
preceding sentence.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Agreement: (i) Stockholder
shall deliver to Parent a proxy in the form attached to this Agreement as
Exhibit A, which shall be irrevocable to the fullest extent permitted by law (at
all times prior to the Proxy Expiration Date) with respect to the shares
referred to therein (the "Proxy"); and (ii) Stockholder shall cause to be
delivered to Parent an additional proxy (in the form attached hereto as Exhibit
A) executed on behalf of the record owner of any outstanding shares of Company
Common Stock that are owned beneficially (within the meaning of Rule 13d-3 under
the Securities Exchange Act of 1934), but not of record, by Stockholder.
(b) Stockholder shall not enter into any tender, voting or other such agreement,
or grant a proxy or power of attorney, with respect to the Subject Shares that
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is inconsistent with this Agreement or otherwise take any other action with
respect to the Subject Shares that would in any way restrict, limit or interfere
with the performance of Stockholder's obligations hereunder or the transactions
contemplated hereby.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees
to cause to be waived and to prevent the exercise of, any rights of appraisal,
any dissenters' rights and any similar rights relating to the Merger or any
related transaction that Stockholder or any other Person may have by virtue of,
or with respect to, any shares of Company Common Stock Owned by Stockholder.
SECTION 5. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
5.1 Authorization, etc. Stockholder has the absolute and unrestricted right,
power, authority and capacity to execute and deliver this Agreement and the
Proxy and to perform Stockholder's obligations hereunder and thereunder. This
Agreement and the Proxy have been duly executed and delivered by Stockholder and
constitute legal, valid and binding obligations of Stockholder, enforceable
against Stockholder 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. If Stockholder is a corporation, then Stockholder
is a corporation duly organized, validly existing and in good standing under the
laws of the jurisdiction in which it was organized. If Stockholder is a general
or limited partnership, then Stockholder is a partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it was organized. If Stockholder is a limited liability company, then
Stockholder is a limited liability company duly organized, validly existing and
in good standing under the laws of the jurisdiction in which it was organized.
5.2 No Conflicts or Consents.
(a) The execution and delivery of this Agreement and the Proxy by Stockholder do
not, and the performance of this Agreement and the Proxy by Stockholder will
not: (i) conflict with or violate any law, rule, regulation, order, decree or
judgment applicable to Stockholder; or (ii) result in either (A) any breach of
or default under any Contract to which Stockholder is a party or (B) the
creation of any encumbrance or restriction on any of the Subject Securities, in
either case, which would prevent Stockholder from complying with the obligations
set forth in Section 3.1.
(b) The execution and delivery of this Agreement and the Proxy by Stockholder do
not, and the performance of this Agreement and the Proxy by Stockholder will
not, require any consent or approval of any Person. The execution and delivery
of any additional proxy pursuant to Section 3.2(a)(ii) with respect to any
shares of Company Common Stock that are owned beneficially but not of record by
Stockholder do not, and the performance of any such additional proxy will not,
require any consent or approval of any Person.
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5.3 Title to Securities. As of the date of this Agreement: (a) Stockholder holds
of record (free and clear of any encumbrances or restrictions) the number of
outstanding shares of Company Common Stock set forth under the heading "Shares
Held of Record" on the signature page hereof; (b) Stockholder holds (free and
clear of any encumbrances or restrictions) the options, warrants and other
rights to acquire shares of Company Common Stock set forth under the heading
"Options and Other Rights" on the signature page hereof; (c) Stockholder Owns
the additional securities of the Company set forth under the heading "Additional
Securities Beneficially Owned" on the signature page hereof; and (d) Stockholder
does not directly or indirectly Own any shares of capital stock or other
securities of the Company, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any shares of capital stock or other
securities of the Company, other than the shares and options, warrants and other
rights set forth on the signature page hereof.
5.4 Accuracy of Representations. The representations and warranties contained in
this Agreement are accurate in all respects as of the date of this Agreement,
and will be accurate in all respects at all times through and including the
Proxy Expiration Date as if made as of any such time or date.
SECTION 6. ADDITIONAL COVENANTS OF STOCKHOLDER
6.1 Stockholder Information. Stockholder hereby agrees to permit the Company,
Parent and Acquisition Sub to publish and disclose in the Proxy Statement
Stockholder's identity and ownership of shares of Company Common Stock and the
nature of Stockholder's commitments, arrangements and understandings under this
Agreement.
6.2 Further Assurances. From time to time and without additional consideration,
Stockholder shall (at Stockholder's sole expense) execute and deliver, or cause
to be executed and delivered, such additional transfers, assignments,
endorsements, proxies, consents and other instruments, and shall (at
Stockholder's sole expense) take such further actions, as Parent may request for
the purpose of carrying out and furthering the intent of this Agreement.
SECTION 7. MISCELLANEOUS
7.1 Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by Stockholder in
this Agreement shall survive the Proxy Expiration Date.
7.2 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.
7.3 Notices. Any notice or other communication required or permitted to be
delivered to either party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when received at the address or
facsimile telephone number set forth beneath the name of such party below (or at
such other address or facsimile telephone number as such party shall have
specified in a written notice given to the other party):
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if to Stockholder:
at the address set forth on the signature page hereof; and
if to Parent:
Synopsys, Inc.
000 Xxxx Xxxxxxxxxxx Xxxx
Xxxxxxxx Xxxx, XX 00000
Attn: General Counsel
Fax: (000) 000-0000
7.4 Severability. Any term or provision of this Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity
or enforceability of the remaining terms and provisions hereof or the validity
or enforceability of the offending term or provision in any other situation or
in any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Agreement shall be enforceable as so modified. In the event such court does
not exercise the power granted to it in the prior sentence, the parties hereto
agree to replace such invalid or unenforceable term or provision with a valid
and enforceable term or provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable term.
7.5 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. No addition to or modification of any provision of this
Agreement shall be binding upon either party unless made in writing and signed
by both parties.
7.6 Assignment; Binding Effect. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, 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 Stockholder and
Stockholder's heirs, estate, executors and personal representatives (as
applicable) and Stockholder's successors and assigns, and shall inure to the
benefit of Parent and its successors and assigns. Without limiting any of the
restrictions set forth in Section 2 or Section 5.1 or elsewhere in this
Agreement, this Agreement shall be binding upon any Person to whom any Subject
Securities are transferred. Nothing in this Agreement is intended to confer on
any Person (other than Parent and its successors and assigns) any rights or
remedies of any nature.
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7.7 Independence of Obligations. The covenants and obligations of Stockholder
set forth in this Agreement shall be construed as independent of any other
agreement or arrangement between Stockholder, on the one hand, and the Company
or Parent, on the other. The existence of any claim or cause of action by
Stockholder against the Company or Parent shall not constitute a defense to the
enforcement of any of such covenants or obligations against Stockholder.
7.8 Specific Performance. The parties agree that irreparable damage would occur
in the event that any of the provisions of this Agreement or the Proxy were not
performed in accordance with its specific terms or were otherwise breached.
Stockholder agrees that, in the event of any breach or threatened breach by
Stockholder of any covenant or obligation contained in this Agreement or in the
Proxy, Parent 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. Stockholder further agrees that neither Parent nor any other
Person shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any remedy referred
to in this Section 7.8, and Stockholder irrevocably waives any right he or it
may have to require the obtaining, furnishing or posting of any such bond or
similar instrument.
7.9 Non-Exclusivity. The rights and remedies of Parent 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). Without limiting the generality of the
foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of Stockholder under this Agreement, are in addition
to their respective rights, remedies, obligations and liabilities under common
law requirements and under all applicable statutes, rules and regulations.
Nothing in this Agreement shall limit any of Stockholder's obligations, or the
rights or remedies of Parent, under any Affiliate Agreement between Parent and
Stockholder; and nothing in any such Affiliate Agreement shall limit any of
Stockholder's obligations, or any of the rights or remedies of Parent, under
this Agreement.
7.10 Governing Law; Jurisdiction; Waiver of Jury Trial.
(a) This Agreement shall be governed by, and construed in accordance with, the
laws of the State of Delaware, regardless of the laws that might otherwise
govern under applicable principles of conflicts of laws thereof. In any action
between the parties arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement each of the parties irrevocably and
unconditionally consents and submits to the jurisdiction and venue of the state
and federal courts located in the Northern District of California and the State
of Delaware.
(b) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN CONNECTION WITH
ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR THE ENFORCEMENT
OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.
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7.11 Counterparts. This Agreement may be executed 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.
7.12 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.
7.13 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 Stockholder, 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).
7.14 Waiver. No failure on the part of Parent to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of Parent 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. Parent shall not be deemed to have waived any claim available to Parent
arising out of this Agreement, or any power, right, privilege or remedy of
Parent 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 Parent; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
7.15 Termination. This Agreement shall terminate on the Proxy Expiration
Date.
7.16 Construction.
(a) For purposes of this Agreement, whenever the context requires: the singular
number shall include the plural, and vice versa; the masculine gender shall
include the feminine and neuter genders; the feminine gender shall include the
masculine and neuter genders; and the neuter gender shall include masculine and
feminine genders.
(b) The parties agree that any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not be applied
in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including," and
variations thereof, shall not be deemed to be terms of limitation, but rather
shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement to
"Sections" and "Exhibits" are intended to refer to Sections of this Agreement
and Exhibits to this Agreement.
[Remainder of page intentionally left blank.]
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Signature Page to Stockholder Agreement
IN WITNESS WHEREOF, Parent and Stockholder have caused this Agreement
to be executed as of the date first written above.
SYNOPSYS, INC.
_____________________________________________
By
_____________________________________________
Title
STOCKHOLDER
______________________________________________
Signature
______________________________________________
Printed Name
Address: ___________________________
___________________________
___________________________
Facsimile: ___________________________
Additional Securities
Shares Held of Record Options and Other Rights Beneficially Owned
---------------------- ------------------------- ---------------------
Signature Page to Irrevocable Proxy
A-1
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder (the "Stockholder") of HPL TECHNOLOGIES,
INC., a Delaware corporation (the "Company"), hereby irrevocably (to the fullest
extent permitted by law) appoints and constitutes XXX X. XXXXXXX, XXXXX XXXXXXX
and SYNOPSYS, INC., a Delaware corporation ("Parent"), and each of them, the
attorneys and proxies of the Stockholder, with full power of substitution and
resubstitution, to the full extent of the Stockholder's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the Stockholder as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the Stockholder may acquire on or after the date hereof. (The
shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"Shares.") Upon the execution hereof, all prior proxies given by the Stockholder
with respect to any of the Shares are hereby revoked, and the Stockholder agrees
that no subsequent proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted
in connection with, and as security for, the Voting Agreement, dated as of the
date hereof, between Parent and the Stockholder (the "Voting Agreement"), and is
granted in consideration of Parent entering into the Agreement of Merger, dated
as of the date hereof, among Parent, Snap Acquisition, Inc. a wholly-owned
subsidiary of Parent, and the Company (the "Merger Agreement"). This proxy will
terminate on the Proxy Expiration Date (as defined in the Voting Agreement).
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
the Company, however called, and in connection with any written action by
consent of stockholders of the Company:
(i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the adoption and approval of the
Merger Agreement and the terms thereof, in favor of each of the other
actions contemplated by the Merger Agreement and in favor of any action
in furtherance of any of the foregoing; and
(ii) against any action or agreement that would result in a
breach of any representation, warranty, covenant or obligation of the
Company in the Merger Agreement; and
(iii) against the following actions (other than the Merger and
the other transactions contemplated by the Merger Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or any subsidiary of
the Company; (B) any sale, lease, sublease, license, sublicense or
transfer of a material portion of the rights or other assets of the
Company or any subsidiary of the Company; (C) any reorganization,
recapitalization, dissolution or liquidation of the Company or any
subsidiary of the Company; (D) any change in a majority of the board of
directors of the Company; (E) any amendment to the Company's
certificate of incorporation or bylaws; (F) any material change in the
capitalization of the Company or the Company's corporate structure; and
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(G) any other action which is intended, or would 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 or the Voting Agreement.
The Stockholder may vote the Shares on all other matters not referred
to in this proxy, and the attorneys and proxies named above may not exercise
this proxy with respect to such other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Stockholder (including any
transferee of any of the Shares).
Any term or provision of this proxy that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Stockholder agrees that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this proxy shall be enforceable as so modified. In the event such court does not
exercise the power granted to it in the prior sentence, the parties hereto agree
to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable term.
Dated: October 2, 2005
STOCKHOLDER
_________________________________________
Signature
_________________________________________
Printed Name
Number of shares of common stock of the
Company owned of record as of the
date of this proxy:
_________________________________________
