VOTING AGREEMENT
THIS VOTING AGREEMENT (“Agreement”) is entered into as of September 20, 2006, by and
between Vitria Technology, Inc., a Delaware corporation (the “Company”), and Xxxxx/Xxxxx
Investments, L.P. (“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 the Company.
B. Innovation Technology Group, Inc., a Delaware corporation (“Parent”), ITG
Acquisition, Inc., a Delaware corporation (“Merger Sub”), and the Company are entering into
an Agreement and Plan of Merger of even date herewith (the “Merger Agreement”) which
provides (subject to the conditions set forth therein) for the merger of Merger Sub into the
Company (the “Merger”).
C. Stockholder is entering into this Agreement in order to induce the Company 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) “Expiration Time” shall mean the earlier of: (i) such time as the Merger Agreement
is terminated in accordance with its terms, (ii) such time as the Merger becomes effective.
(c) 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.
(d) “Person” shall mean any: (i) individual; (ii) corporation, limited liability
company, partnership or other entity; or (iii) governmental authority.
(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 Expiration Time.
(f) A Person shall be deemed to have a effected a “Transfer” of a security if such
Person: (i) sells, encumbers, grants an option with respect to or disposes of such security or any
interest in such security to any Person; or (ii) enters into an agreement or commitment
contemplating the possible sale of, encumbrance of, grant of an option with respect to or
disposition of such security or any interest therein to any Person.
(g) Capitalized terms used but not otherwise defined in this Agreement have the meanings
assigned to such terms in the Merger Agreement.
SECTION 2. RESTRICTIONS ON 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 Expiration Time, Stockholder shall not 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 Expiration Time, Stockholder shall ensure that: (a) none of the Subject
Securities is deposited into a voting trust; and (b) no proxy is granted with respect to any of the
Subject Securities (other than in connection with Stockholder’s compliance with Section 3(a) and
other than the proxy in the form attached hereto as Exhibit A delivered to the Company pursuant to
Section 3(c)), no voting agreement or similar agreement is entered into with respect to any of the
Subject Securities and no power of attorney is granted with respect to the voting of the Subject
Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a Transfer of Subject Securities by
Stockholder (a) to Parent or to any wholly-owned subsidiary of Parent, (b) 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 (c) to XxXxx Xxxxx or Xxxx Xxxxx or to a trust for the benefit
of XxXxx Xxxxx or Xxxx Xxxxx or any member of their immediate families, provided, however, that, in
the case of each of clauses “(a)” and “(b)” above, a Transfer referred to in this sentence shall
be permitted only if, as a precondition to such Transfer, the transferee agrees in writing,
reasonably satisfactory in form and substance to the Company, to be bound by all of the terms of
this Agreement and delivers a duly executed proxy in the form attached hereto as Exhibit A with
respect to such transferred Subject Securities.
SECTION 3. VOTING OF SHARES.
(a) Stockholder hereby agrees that, prior to the Expiration Time, 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 the Company, Stockholder shall cause all
issued and outstanding shares of Company Common Stock Owned by
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Stockholder to be voted in favor of: (i) the adoption of the Merger Agreement; and (ii) the
Merger and each of the other transactions contemplated by the Merger Agreement.
(b) Notwithstanding anything to the contrary contained in this Agreement, nothing in this
Agreement (a) limits or affects, or gives rise to any liability of Stockholder by virtue of, any
actions taken by Stockholder in his or her capacity as an officer or director of the Company, as
applicable, including any actions taken in connection with the exercise of the rights of the
Company or its board of directors (or any committee thereof) under the Merger Agreement or (b)
obligates Stockholder to exercise any option, warrant or other right to acquire any Company Common
Stock.
(c) Stockholder has delivered to the Company a duly executed proxy in the form attached hereto
as Exhibit A (the “Proxy”), such Proxy covering the Subject Securities. Upon the execution
of this Agreement by Stockholder, Stockholder hereby revokes any and all prior proxies or powers of
attorney given by Stockholder with respect to voting of the Subject Securities on the matters
referred to in Section 3(a).
SECTION 4. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to the Company as follows:
4.1 Authorization, etc. Stockholder has the right, power and authority 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
the legal, valid and binding obligation of Stockholder, enforceable against Stockholder in
accordance with their respective terms, subject to: (a) laws of general application relating to
bankruptcy, insolvency and the relief of debtors; and (b) 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 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 by which
Stockholder or any of Stockholder’s 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 Stockholder is a party or by which Stockholder or any of Stockholder’s affiliates
or properties is or may be bound or affected.
(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.
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SECTION 5. MISCELLANEOUS
5.1 Termination. This Agreement shall terminate, and neither the Company nor any Stockholder
shall have any rights or obligations hereunder and this Agreement shall become null and void and
have no effect, at the Expiration Time.
5.2 Further Assurances. From time to time, Stockholder shall execute and deliver, or cause to
be executed and delivered, such additional instruments, and shall take such further actions, as the
Company may reasonably request for the purpose of carrying out and furthering the intent of this
Agreement and the Proxy.
5.3 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):
if to Stockholder:
at the address set forth on the signature page hereof; and
if to the Company:
Vitria Technology, Inc.
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
000 Xxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
5.4 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.
5.5 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.
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5.6 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 successors and assigns, and shall inure to the benefit of the Company and its
successors and assigns. Without limiting any of the restrictions set forth in Section 2 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 the Company and its successors and assigns) any rights or remedies of any nature.
5.7 Specific Performance. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Agreement were not performed in accordance with its specific
terms or were otherwise breached. Stockholder agrees that, in the event of any breach by
Stockholder of any covenant or obligation contained in this Agreement, the Company shall be
entitled to: (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.
5.8 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. Each of the parties hereto: (i) consents to submit itself to the
personal jurisdiction of the Court of Chancery of the State of Delaware, in the event any dispute
arises out of this Agreement; (ii) agrees that it will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court; and (iii) agrees that it
will not bring any action relating to this Agreement in any court other than the Court of Chancery
of 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 ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT.
5.9 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.
5.10 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.
5.11 Waiver. No failure on the part of the Company to exercise any power, right, privilege or
remedy under this Agreement, and no delay on the part of the 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. The Company shall not be deemed to have waived any claim
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available to the Company arising out of this Agreement, or any power, right, privilege or
remedy of the Company 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 the Company; and any such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
5.12 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” are intended
to refer to Sections of this Agreement.
[signature page follows]
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IN WITNESS WHEREOF, the Company and Stockholder have caused this Agreement to be executed as
of the date first written above.
| COMPANY: | ||||||
| VITRIA TECHNOLOGY, INC. | ||||||
| By: | /s/ Xxxxxxx X. Xxxxx | |||||
| Name: Xxxxxxx X. Xxxxx | ||||||
| Title: Senior Vice President and Chief Financial Officer | ||||||
| Address: | ||||||
| Vitria Technology, Inc. | ||||||
| 000 Xxxxxxx Xxxxx | ||||||
| Xxxxxxxxx, Xxxxxxxxxx 00000 | ||||||
| Attn: Chief Financial Officer | ||||||
| STOCKHOLDER: | ||||||
| XXXXX/XXXXX INVESTMENTS, L.P. | ||||||
| By: | /s/ XxXxx Xxxxx | |||||
| Name: XxXxx Xxxxx | ||||||
| Title: General Partner | ||||||
| Address: | ||||||
| 000 Xxxxx Xxxx, Xxxxx 000 | ||||||
| Xxxxx Xxxx, Xxxxxxxxxx 00000 | ||||||
| Facsimile No.: (000) 000-0000 | ||||||
EXHIBIT A
IRREVOCABLE PROXY TO VOTE STOCK OF VIKING, INC.
The undersigned stockholder of Vitria Technology, Inc., a Delaware corporation (the
“Company”), hereby irrevocably appoints the members of the Board of Directors of the Company, a
Delaware corporation, and each of them, or any other designee of the Company, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting rights (to the full extent that the undersigned is
entitled to do so) with respect to all of the issued and outstanding shares of capital stock of the
Company that now are owned of record by the undersigned and are owned of record by the undersigned
as of any record date relevant for a vote (collectively, the “Shares”), in accordance with
the terms of this Irrevocable Proxy. The Shares beneficially owned by the undersigned stockholder
of the Company as of the date of this Irrevocable Proxy are listed on the final page of this
Irrevocable Proxy. Upon the undersigned’s execution of this Irrevocable Proxy, any and all prior
proxies given by the undersigned with respect to the voting of any Shares on the matters referred
to in the third full paragraph of this Irrevocable Proxy are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to such matters (other than in connection
with Stockholder’s compliance with Section 3(a) of the Voting Agreement (as defined below)) until
after the Expiration Time (as defined in the Voting Agreement).
This Irrevocable Proxy is irrevocable, is coupled with an interest, and is granted in
connection with the Voting Agreement, dated as of the date hereof, between the Company and the
undersigned stockholder of the Company (the “Voting Agreement”) and is granted in
consideration of the Company entering into that certain Agreement and Plan of Merger (the
“Merger Agreement”) by and among Innovation Technology Group, Inc., a Delaware corporation
(“Parent”), ITG Acquisition, Inc., a Delaware corporation and a wholly owned subsidiary of
Parent (“Merger Sub”), and the Company, which Merger Agreement provides for the merger of
Merger Sub with and into the Company (the “Merger”). All capitalized terms not defined
herein shall have the meaning set forth in the Voting 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 Time, to act as the undersigned’s attorney and
proxy to vote the Shares, and to exercise all voting 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 the stockholders of the Company and in every written
consent in lieu of such meeting, in favor of:
| (i) | the adoption of the Merger Agreement; and | ||
| (ii) | the Merger and each of the other transactions contemplated by the Merger Agreement. |
The attorneys and proxies named above may not exercise this Irrevocable Proxy on any other
matter except as provided above. The undersigned stockholder may vote the Shares on all other
matters.
A-1
All authority herein conferred shall survive the death or incapacity of the undersigned and
any obligation of the undersigned hereunder shall be binding upon the heirs, personal
representatives, successors and assigns of the undersigned.
[signature page follows]
A-2
This Irrevocable Proxy is coupled with an interest as aforesaid and is irrevocable.
Dated: September 20, 2006
| XXXXX/XXXXX INVESTMENTS, L.P. | ||||||
| By: | /s/ XxXxx Xxxxx | |||||
| Name: XxXxx Xxxxx | ||||||
| Title: General Partner | ||||||
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