EXHIBIT 99.2
VOTING AGREEMENT
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THIS VOTING AGREEMENT is dated as of May 20, 2000 (this "Agreement"), among
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Active Software, Inc., a Delaware corporation (the "Company"), and each other
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party who is a signatory hereto (each a "Stockholder" and collectively the
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"Stockholders"). Capitalized words not otherwise defined in this Agreement
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shall have the meaning set forth in the Merger Agreement.
WHEREAS, each Stockholder desires that, the Company, Parent and Merger Sub
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the "Merger Agreement"), pursuant to which
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it is intended that the Company shall merge with Merger Sub ("Merger");
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WHEREAS, as of the date hereof, each Stockholder is beneficial owner of,
and has the right to vote and dispose of the number of shares of Parent Common
Stock which is set forth opposite such Stockholder's name in Schedule A hereto;
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WHEREAS, as the Company has solicited proxies from the individuals and
entities as indicated on Schedule A hereto; and
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WHEREAS, each Stockholder is executing this Agreement as an inducement to
the Company to enter into and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by the
Company of the Merger Agreement and the representations, warranties, covenants,
conditions and agreements contained herein and therein, the parties agree as
follows:
Section 1. Representations and Warranties of Stockholders. Each
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Stockholder, severally, and not jointly, represents, warrants and covenants to
the Company as of the date of this Agreement, as follows:
(a) Stockholder is the record holder and/or beneficial owner of the
number of shares of Parent Common Stock set forth opposite such
Stockholder's name in Schedule A hereto, as such Schedule is amended or
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modified pursuant to Section 5 hereof (the "Stockholder's Shares" or
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"Shares"). Except for the Stockholder's Shares, Stockholder is not the
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record or beneficial owner of any other shares of Parent Common Stock.
(b) This Agreement has been duly authorized, executed and delivered
by the Stockholder and, assuming due execution and delivery of this
Agreement by the other parties hereto, shall constitute the legal, valid
and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms (except as enforceability
may be limited by applicable bankruptcy, insolvency, moratorium or similar
laws affecting creditors' rights generally or by principles governing the
availability of equitable remedies). Neither the execution and delivery of
this Agreement nor the performance by the Stockholder of this Agreement
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which the Stockholder is a party or bound or to
which the Stockholder's Shares are subject. No trust of which the
Stockholder is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby. If the Stockholder is married and the
Stockholder's Shares constitute community property, this Agreement has been
duly authorized, executed and delivered by, and constitutes a valid and
binding agreement of, the Stockholder's spouse, enforceable against such
person in accordance with its terms (except as enforceability may be
limited by applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally or by principles governing the
availability of equitable remedies). The execution and delivery of the
Agreement by the Stockholder and performance of this Agreement will not
violate, or require any consent, approval, or notice under, any provision
of any judgment, order, decree, statute, law, rule or regulation applicable
to the Stockholder or the Stockholder's Shares.
(c) The Stockholder understands and acknowledges that the Company is
entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement.
(d) Each Stockholder is acting individually and not part of a "group"
in Section 13(d) of the Exchange Act.
Section 2. Representations and Warranties of the Company. The Company
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represents, warrants and covenants to each Stockholder, as of the date of this
Agreement, as follows:
(a) This Agreement and the Merger Agreement have been duly and
validly executed and delivered by the Company, as applicable, and assuming
due execution and delivery of this Agreement by the other parties thereto,
shall constitute the legal, valid and binding obligation of the Company, as
applicable, enforceable in accordance with their terms, except as
enforceability may be limited by bankruptcy and other similar laws and
general principles of equity. Neither the execution and delivery of this
Agreement or the Merger Agreement nor the consummation of the Merger or the
transactions contemplated hereby will result in the violation of, or a
default under, or conflict with, any contract, trust, commitment,
agreement, understanding, arrangement or restriction of any kind to which
the Company is a party or bound. Execution and delivery by the Company of
this Agreement and the Merger Agreement and performance of the transactions
contemplated thereby will not violate or require any consent, approval,
notice under any provision of any judgment, order, decree, statute, law,
rule or regulation applicable to the Company, except for (i) applicable
requirements, if any, of the
Exchange Act, the Securities Act, the Blue Sky Laws and the HSR Act, in
each case, including rules and regulations promulgated thereunder and (ii)
the Certificate of Merger.
(b) The Company understands and acknowledge that each Stockholder is
entering into this Agreement in reliance upon the covenant and agreement of
the Company to perform their respective covenants and obligations under the
Merger Agreement in accordance with its terms.
Section 3. Voting Agreement. Each Stockholder hereby agrees, severally
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and not jointly, that it shall, and shall cause the holder of record of any
Shares beneficially owned by such Stockholder on any applicable record date and
stockholder meeting date or the date the Shares are voted by written consent (as
the case may be) to, from time to time, at the request of the Company, at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of stockholders of the Parent, however called, or in connection with
any written consent of the holders of Parent Common Stock, (a) if a meeting is
held at which matters relating to approval of the issuance of shares of Parent
Common Stock in connection with the Merger are considered, appear at such
meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum, and (b) vote or consent (or cause to be voted
or consented), in person or by proxy, all Shares, and any other voting
securities of the Company (whether acquired heretofore or hereafter) that are
beneficially owned or held of record by such Stockholder or as to which such
Stockholder has, directly or indirectly, the right to vote or direct the voting,
in favor of the issuance of shares of Parent Common Stock in connection with the
Merger.
Section 4. Grant of Proxy. Each Stockholder indicated on Schedule A as
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having its proxy solicited, hereby irrevocably appoints and constitutes the
Company and R. Xxxxx Xxxxx, in his capacity as an officer of the Company,
agents, attorneys and proxies of the undersigned, from the date hereof until the
earlier to occur of the termination of this Agreement or the Effective Time,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the Shares then held by such Stockholder on
any applicable record date and stockholder meeting date or the date the Shares
are voted by written consent (as the case may be), to vote such Shares as
follows: the agents and proxies named above are empowered at any time prior to
termination of this proxy to exercise all voting and other rights (including,
without limitation, the power to execute and deliver written consents with
respect to such Shares) of the undersigned at every annual, special or adjourned
meeting of Company stockholders, and in every written consent in lieu of such a
meeting, or otherwise, in favor of the approval of the issuance of shares of
Parent Common Stock in connection with the Merger.
Section 5. Transfer Restrictions.
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(a) (a) Each Stockholder, indicated on Schedule A as agreeing to the
provisions of this Section 5, severally and not jointly, hereby agrees,
while this Agreement is in effect, and except as contemplated hereby, upon
any sale, transfer, pledge, or other disposition of any shares to any
person or entity, such person or entity shall agree to be
bound by all of the terms and conditions of this Agreement and the
Stockholder shall deliver a duly executed copy of the Agreement to the
Company to evidence such Agreement prior to any such sale, transfer, pledge
or other disposition.
(b) Except with respect to transfers permitted under Section 5(a),
each Stockholder shall not request that the Parent or its transfer agent
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of such Stockholder's Shares, and
hereby consents to the entry of stop transfer instructions by the Parent of
any transfer of such Stockholder's Shares, unless such transfer is made in
compliance with this Agreement.
Section 6. Further Assurances. Each Stockholder shall, upon request of
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the Company, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by the Company to be necessary or desirable
to carry out the provisions hereof.
Section 7. No Ownership Interest. Nothing contained in this Agreement
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shall be deemed to vest in the Company any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain vested in and
belong to the Stockholders, and the Company shall have no authority to manage,
direct, superintend, restrict, regulate, govern, or administer any of the
policies or operations of the Parent or exercise any power or authority to
direct the Stockholders in the voting of any of the Shares, except as otherwise
provided herein, or in the performance of the Stockholders' duties or
responsibilities as stockholders of the Parent
Section 8. Documents Delivered. Each Stockholder acknowledges receipt of
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copies of the Merger Agreement and all exhibits and schedules thereto. Each
Stockholder also acknowledges that such Stockholder possesses all the
information which such Stockholder deems relevant or material to such
Stockholder's entering into this Agreement.
Section 9. No Inconsistent Agreements. Each Stockholder hereby covenants
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and agrees that, except as contemplated by this Agreement and the Merger
Agreement, the Stockholder (a) has not entered, and shall not enter at any time
while this Agreement remains in effect, into any voting agreement or voting
trust with respect to the Shares and (b) has not granted, and shall not grant at
any time while this Agreement remains in effect, a proxy or power of attorney
with respect to the Shares, in either case, which is inconsistent with such
Stockholder's obligations pursuant to this Agreement.
Section 10. Termination. This Agreement shall terminate and no party
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shall have any rights or duties hereunder upon the earlier of (a) the Effective
Time or (b) the date termination of the Merger Agreement in accordance with its
terms. Nothing in this Section 5 shall relieve or otherwise limit any party of
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liability for breach of this Agreement.
Section 11. Survival of Representations, Warranties and Covenants. All
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representations, warranties and covenants made by each Stockholder in or
pursuant to this
Agreement or in any document delivered pursuant hereto shall be deemed to have
been made on the date of this Agreement (except as otherwise provided herein).
Section 12. Remedies Cumulative. Prior to the Effective Time, the
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remedies set forth in this Agreement shall be cumulative and shall not be
construed to restrict or otherwise affect any other remedies that may be
available to the parties under any other agreement or pursuant to statutory or
common law.
Section 13. Miscellaneous.
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(a) All notices, requests, claims, demands and other communications
under this Agreement shall be in writing and shall be deemed given if
delivered personally or sent by overnight courier (providing proof of
delivery) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice): (i) if to the
Company, to the address set forth in Section 8.2 of the Merger Agreement;
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and (ii) if to a Stockholder, to the address set forth in Schedule A
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hereto, or such other address as may be specified in writing by
Stockholder.
(b) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation
of this Agreement.
(c) This Agreement may be executed in two or more counterparts, all
of which shall be considered one and the same agreement and shall become
effective as to a Stockholder when one or more counterparts have been
signed by each of the Company and such Stockholder and delivered to each of
them.
(d) This Agreement (including the documents and instruments referred
to herein) constitutes the entire agreement, and supersedes all prior
agreements and understandings, both written and oral, among the parties
with respect to the subject matter hereof.
(e) 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.
(f) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in part, by
operation of law or otherwise, by any of the parties without the prior
written consent of the other parties, except by laws of descent.
(g) If any term, provision, covenant or restriction herein, or the
application thereof to any circumstance, shall, to any extent, be held by a
court of competent jurisdiction to be invalid, void or unenforceable, the
remainder of the terms, provisions, covenants and restrictions herein and
the application thereof to any other circumstances,
shall remain in full force and effect, shall not in any way be affected,
impaired or invalidated, and shall be enforced to the fullest extent
permitted by law.
(h) The Company and each Stockholder agree that irreparable damage
would occur and that the Company would not have any adequate remedy at law
in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the Company shall be entitled to
an injunction or injunctions to prevent breaches by Stockholder or the
Company of this Agreement and to enforce specifically the terms and
provisions of this Agreement in any court of the United States.
(i) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and
signed by such party. The Company agrees not to amend or modify the Merger
Agreement unless each Stockholder shall have consented to such amendment or
modification.
Section 14. Several Obligations; Capacity.
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(a) The representations, warranties, covenants, agreements and
conditions of this Agreement applicable to the Stockholders are several and
not joint.
(b) The obligations of the Stockholders hereunder are several and not
joint and the covenants and agreements of the Stockholders herein are made
only in their capacity as stockholders of the Parent and not as directors
or officers.
(Remainder of page intentionally left blank)
IN WITNESS WHEREOF, the Company and each Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
ACTIVE SOFTWARE, INC.
By: /s/ R. XXXXX XXXXX
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Title: President and CEO
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STOCKHOLDERS:
/s/ XXXXXXX XXXXX
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(i) Xxxxxxx Xxxxx
/s/ XXXXX XXXXXX
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Xxxxx Xxxxxx
/s/ XXXXXX X. XXXX
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Xxxxxx X. Xxxx
DELL USA L.P.
By: /s/ DELL USA L.P.
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Title:__________________________________
/s/ XXXXX XXXXXX
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Xxxxx XxXxxx
/s/ XXXX XXXXX
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Xxxx Xxxxx
FBR TECHNOLOGY VENTURE PARTNERS, L.P.
By: /s/ FBR TECHNOLOGY VENTURE PARTNERS, L.P.
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Title:__________________________________
THE XXXXXXX XXXXX GROUP, INC.
By:
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Title:________________________________
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
/s/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx
/s/ XXXX X. XXXXX
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Xxxx X. Xxxxx
XXXXXXXX ASSOCIATES FUND IV
By: /s/ XXXXXXXX ASSOCIATES FUND IV
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Title:________________________________
XXXXXXXX IX
By: /s/ XXXXXXXX IX
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Title:________________________________
/s/ XXXXXXX XXXXXXX
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Xxxxxxx Xxxxxxx
/s/ XXXXX XXXXXXXX
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Xxxxx Xxxxxxxx
/s/ XXXX XXXXXXXX
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Xxxx Xxxxxxxx
/s/ XXXXXX X. XXXXX
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Xxxxxx X. Xxxxx
SCHEDULE A
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Number of Agreed to
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Name and Address of Stockholder Stockholders Shares Proxy Solicited Section 5
------------------------------- ------------------- ---------------- ---------
Xxxxxxx Xxxxx 378,852 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxx Xxxxxx 68,933 x
000 Xxxxx Xxxxxxxxx, No. 802
XXX 000
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Xxxxxx X. Xxxx 1,178,197 x x
X.X. Xxx 0000
000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxx 00000
Dell USA L.P. 2,450,944 x
Xxx Xxxx Xxx
Xxxxx Xxxx, Xxxxx 00000
Attn:
Xxxxx XxXxxx 3,315,296 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxx 37,921 x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
FBR Technology Venture Partners, L.P. 2,746,822 x x
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
The Xxxxxxx Xxxxx Group, Inc. 1,816,758
00 Xxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of Agreed to
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Name and Address of Stockholder Stockholders Shares Proxy Solicited Section 5
------------------------------- ------------------- ---------------- ---------
Attn:
Xxxxxx X. Xxxxx 68,464 x
c/o FDX Corporation
000 Xxxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X. Xxxxxxxxx 5,625,817 x
c/x Xxxxxxxx Fund
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxx X. Xxxxx 1,163,776 x x
c/o Shaw Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Xxxxxxxx Associates Fund IV 5,608,978 x x
c/x Xxxxxxxx Fund
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Xxxxxxxx IX 5,608,978 x x
c/x Xxxxxxxx Fund
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx 3,315,296 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxx Xxxxxxxx 229,236 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxxxx 2,752,954 x
c/o FBR Technology Venture Partners, L.P.
00000 Xxxxxxx Xxxxxx Xxxxx
Number of Agreed to
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Name and Address of Stockholder Stockholders Shares Proxy Solicited Section 5
------------------------------- ------------------- ---------------- ---------
Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxx 5,786,256 x
c/x Xxxxxxxx Fund
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
