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EXHIBIT 3
VOTING AGREEMENT
This Voting Agreement dated as of October __, 1998 is between BMC
Software, Inc., a Delaware corporation ("BMC"), and
_____________________________ (the "Stockholder").
WHEREAS, BMC, Ranger Acquisition Corp., a Delaware corporation and
wholly owned subsidiary of BMC ("Merger Sub"), and Xxxxx & Xxxxxxx, Inc., a
Delaware corporation ("Xxxxx"), are entering into an Agreement and Plan of
Reorganization dated as of the date hereof (as amended from time to time
pursuant thereto, the "Reorganization Agreement");
WHEREAS, the Stockholder owns the number of issued and outstanding
shares of Common Stock, par value $0.001 per share, of Xxxxx (the "Xxxxx Common
Stock), set forth opposite his name on Schedule A attached hereto; and
WHEREAS, as a condition to the willingness of BMC to enter into the
Reorganization Agreement, and as an inducement to it to do so, the Stockholder
has agreed for the benefit of BMC as set forth in this Agreement;
NOW, THEREFORE, in consideration of the premises set forth above, the
mutual promises set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereby
agree as follows (terms defined in the Reorganization Agreement and used but not
defined herein having the meanings assigned to such terms in the Reorganization
Agreement):
ARTICLE 1.
COVENANTS OF THE STOCKHOLDER
Section 1.01. Agreement to Vote. At any meeting of the stockholders of
Xxxxx held after the date of this Agreement and prior to the Termination Date
(as defined hereinafter), however called, and at every adjournment or
postponement thereof after the date of this Agreement and prior to the
Termination Date, or in connection with any written consent of the stockholders
of Xxxxx given after the date of this Agreement and prior to the Termination
Date, the Stockholder shall vote or cause to be voted all Subject Shares (as
defined below) in favor of the approval of the Merger and each of the other
transactions contemplated by the Reorganization Agreement and in favor of the
approval and adoption of the Reorganization Agreement, and any actions required
in furtherance hereof and thereof. For purposes of this Agreement, "Subject
Shares" shall mean all issued and outstanding shares of Xxxxx Common Stock owned
(i) of record by the Stockholder or (ii) beneficially by the Stockholder, where
such Stockholder has sole voting power of such stock without consideration of
any duty (fiduciary or otherwise) to another person, in either case, as of the
record date fixed for such meeting or consent. Notwithstanding anything to the
contrary contained in this
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Agreement, the "Subject Shares" shall not include, and the Stockholder shall not
be deemed to be the beneficial owner of, any shares of Xxxxx Common Stock that
the Stockholder may acquire upon exercise of any stock options (unless such
option has been exercised and such shares have been issued to the Stockholder
and are held by the Stockholder as of such record date). From the date of this
Agreement through the Termination Date, the Stockholder hereby grants BMC an
irrevocable proxy coupled with an interest to vote the Subject Shares in favor
of the Merger and each of the other transactions contemplated by the
Reorganization Agreement and in favor of the approval and adoption of the
Reorganization Agreement, and any actions required in furtherance hereof and
thereof.
Section 1.02. Proxies and Voting Agreements. Except as described in
Section 1.01, the Stockholder hereby revokes any and all previous proxies
granted with respect to matters set forth in Section 1.01. Prior to the
Termination Date, the Stockholder shall not enter into any agreement or
understanding with any person other than BMC prior to the Termination Date,
directly or indirectly, to vote, grant any proxy or give instructions with
respect to the voting of any Subject Shares in any manner inconsistent with this
Agreement. This Agreement is intended to bind Stockholder only with respect to
the specific matters set forth herein. Stockholder will retain at all times the
right to vote the Stockholder's Subject Shares, in Stockholder's sole
discretion, on all matters other than those set forth in this Section 1.02 which
are at any time or from time to time presented to Xxxxx'x stockholders
generally.
Section 1.03. Transferee of Subject Shares to be Bound by this
Agreement. The Stockholder agrees that, during the period from the date of this
Agreement through the Termination Date, Stockholder shall not cause or permit
any transfer, assignment, conveyance or other disposition of any of the Subject
Shares to be effected unless each person to which any Subject Shares, or any
interest in any of such Subject Shares, is or may be transferred shall have: (a)
executed a counterpart of this Agreement; and (b) agreed to hold such Subject
Shares (or interest in such Subject Shares) subject to all of the terms and
provisions of this Agreement.
For purposes hereof, the "Termination Date" means the first to occur of
(i) the Effective Time of the Merger and (ii) the date the Reorganization
Agreement is terminated pursuant to the provisions thereof.
ARTICLE 2.
REPRESENTATIONS, WARRANTIES AND ADDITIONAL COVENANTS
OF THE STOCKHOLDER
The Stockholder represents, warrants and covenants as of the date
hereof to BMC that:
Section 2.01. Ownership. The Stockholder is as of the date hereof the
beneficial owner of the shares of Xxxxx Common Stock set forth opposite his name
on Schedule A attached hereto. The Stockholder has the sole right to vote such
shares, none of such shares are subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such shares, and no
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proxy, power of attorney or other authorization has been granted with respect to
any of such shares other than as set forth herein.
Section 2.02. Authority and Non-Contravention. The Stockholder has the
right, and capacity, to execute, deliver and perform this Agreement and
consummate the transactions contemplated hereby.
Such actions by the Stockholder (a) require no action by or in respect
of, or filing with, any governmental entity by the Stockholder on or before the
Termination Date, other than any required filings under the Exchange Act or
under the HSR Act, and (b) do not and will not contravene or constitute a
default under any provisions of applicable law or regulation or any agreement,
judgment, injunction, order, decree or other instrument binding on the
Stockholder or result in the imposition of any lien, pledge, security interest,
charge or other encumbrance or restriction on any of the Subject Shares (other
than as provided in this Agreement with respect to Subject Shares).
Section 2.03. Binding Effect. This Agreement has been duly executed and
delivered by the Stockholder and is the valid and binding agreement of the
Stockholder, enforceable against the Stockholder in accordance with its terms,
except as enforcement may be limited by bankruptcy, insolvency, moratorium or
other similar laws relating to creditors' rights generally and by equitable
principles to which the remedies of specific performance and injunctive and
similar forms of relief are subject.
ARTICLE III
MISCELLANEOUS
Section 3.01. Expenses. Each party hereto shall pay its own expenses
incident to preparing for entering into and carrying out this Agreement and the
consummation of the transactions contemplated hereby.
Section 3.02. Further Assurances. From time to time, at the request of
the other party, each party shall execute and deliver or cause to be executed
and delivered such additional documents and instruments and take all such
further reasonable action as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
Section 3.03. Specific Performance. The Stockholder on the one hand,
and BMC, on the other, acknowledge and agree that irreparable damage would occur
if for any reason the Stockholder fails to perform any of the Stockholder's
obligations under this Agreement, and that BMC would not have an adequate remedy
at law for money damages in such event. Accordingly, BMC shall be entitled to
seek specific performance and injunctive and other equitable relief to enforce
the performance of this agreement by the Stockholder without any requirement for
the securing or posting of any bond. This provision is without prejudice to any
other rights that BMC may have against the Stockholder for any failure to
perform its obligations under this Agreement.
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Section 3.04. Notices. Any notice or communication required or
permitted hereunder shall be in writing and shall be delivered by overnight
courier, sent by facsimile transmission or first class registered or certified
mail, postage prepaid. Any communication so addressed and mailed by first-class
registered or certified mail, postage prepaid, shall be deemed to be received on
the fifth business day after so mailed, and any communication so addressed and
if delivered by overnight courier or facsimile to such address shall be deemed
to be received (i) in the case of delivery by overnight courier, on the second
business day after such communication is delivered to the overnight courier
service, and (ii) in the case of delivery by facsimile, upon delivery during
normal business hours on any business day.
(a) if to BMC or Merger Sub, to:
BMC Software, Inc.
0000 Xxxx Xxxx Xxxx.
Xxxxxxx, XX 00000
Attention: Xxx Xxxx
Facsimile: 713/918-1110
with a copy to:
Xxxxxx & Xxxxxx L.L.P.
0000 Xxxxx Xxxx Xxxxx
Xxxxxxx, Xxxxx 00000
Attention: Xxxx X. Xxxxxx
Facsimile: 713/615-5236
(b) if to Stockholder, to:
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with a copy to:
Xxxxxx Godward L.L.P.
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxx Xxxxxxxxx and Xxxxx Xxxxx
Facsimile: 650/857-0663
Section 3.05. Interpretation. When a reference is made in this
Agreement to Sections, such reference shall be to a Section of this Agreement
unless otherwise indicated. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
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interpretation of this Agreement. Whenever the work "include," "includes" or
"including" are used in this Agreement, they shall be deemed to be followed by
the words "without limitation." Unless the context otherwise requires, "or" is
disjunctive but not necessarily exclusive, and words in the singular include the
plural and in the plural include the singular.
Section 3.06. Counterparts. 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 when two or more counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
all parties need not sign the same counterpart.
Section 3.07. Entire Agreement; No Third Party Beneficiaries. This
Agreement (a) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereto and (b) is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.
Section 3.08. Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of law thereof.
Section 3.09. Assignment. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
hereto (whether by operation of law or otherwise) except as permitted herein
without the prior written consent of the other party. Subject to the preceding
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by the parties and their respective successors and assigns. All
costs and expenses incurred in connection with this Agreement shall be paid by
the party incurring such cost or expense.
Section 3.10. Amendments; Terminations. 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.
Section 3.11. No Effect on Acting as a Director. Nothing in this
Agreement shall, and nothing in this Agreement shall be deemed to, prevent the
Stockholder from taking actions permitted by Section 4.3.6.1 of the
Reorganization Agreement.
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IN WITNESS WHEREOF, BMC and the Stockholder have caused this Agreement
to be duly executed as of the day and year first above written.
STOCKHOLDER:
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Name:
BMC:
BMC SOFTWARE, INC.
By:
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Name: X. Xxxxxxxx Xxxxx
Title: Senior Vice President
