EXHIBIT 99.2
VOTING AGREEMENT
This VOTING AGREEMENT (the "AGREEMENT") is made and entered into as of
September 26, 2004, between Progress Software Corporation, a Massachusetts
corporation ("PARENT"), and the undersigned shareholder ("SHAREHOLDER") of
Persistence Software, Inc., a Delaware corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the Company
and PSI Acquisition Sub, Inc., a Delaware corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), are entering into an Agreement and Plan of
Merger (the "MERGER AGREEMENT") which provides for the merger of Merger Sub with
and into the Company (the "MERGER"). Pursuant to the Merger, shares of common
stock of the Company, par value $0.001 per share ("COMPANY COMMON STOCK") will
be converted into the right to receive cash on the basis described in the Merger
Agreement. Capitalized terms used but not defined herein shall have the meanings
set forth in the Merger Agreement.
B. Shareholder is the record holder of such number of outstanding
shares of Company Common Stock as is indicated on the final page of this
Agreement.
C. As a material inducement to enter into the Merger Agreement, Parent
desires Shareholder to agree, and Shareholder is willing to agree, to vote the
Shares (as defined below), and such other shares of capital stock of the Company
over which Shareholder has voting power, so as to facilitate consummation of the
Merger.
In consideration of the foregoing and the representations, warranties,
covenants and agreements set forth in this Agreement, the parties agree as
follows:
1. AGREEMENT TO VOTE SHARES.
1.1 Definitions. For purposes of this Agreement:
(a) Shares. The term "SHARES" shall mean all issued and
outstanding shares of Company Common Stock owned of record or beneficially by
Shareholder or over which Shareholder exercises voting power, in each case, as
of the record date for persons entitled to receive notice of, and to vote at the
meeting of the shareholders of the Company called for the purpose of voting on
the matters referred to in Section 1.2. Shareholder agrees that any shares of
capital stock of the Company that Shareholder purchases or with respect to which
Shareholder otherwise acquires beneficial ownership or over which Shareholder
exercises voting power after the execution of this Agreement and prior to the
termination of this Agreement pursuant to
Section 3 below shall be subject to the terms and conditions of this Agreement
to the same extent as if they constituted Shares on the date hereof.
(b) Subject Securities. The term "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) beneficially owned by Shareholder 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 Shareholder
acquires ownership after the execution of this Agreement and prior to the
termination of this Agreement pursuant to Section 3 below.
(c) Transfer. Shareholder shall be deemed to have effected a
"TRANSFER" of a security if Shareholder directly or indirectly: (i) sells,
pledges, encumbers, transfers or disposes of, or grants an option with respect
to, such security or any interest in such security; or (ii) enters into an
agreement or commitment providing for the sale, pledge, encumbrance, transfer or
disposition of, or grant of an option with respect to, such security or any
interest therein.
1.2 Agreement to Vote Shares. Shareholder hereby covenants and
agrees that, during the period commencing on the date hereof and continuing
until the Expiration Date (as defined below), at any meeting (whether annual or
special and whether or not an adjourned or postponed meeting) of the
shareholders of the Company, however called, Shareholder will appear at the
meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum and vote (or cause to be voted) the Shares:
(1) in favor of the approval and adoption of the Merger
Agreement and the approval of the Merger and the other actions
contemplated by the Merger Agreement and any actions required in
furtherance thereof; and
(2) against approval of any proposal made in opposition to or
in competition with the consummation of the Merger, including, without
limitation, any Acquisition Proposal or Superior Offer (each as defined in
the Merger Agreement) or any action or agreement that would result in a
breach in any respect of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement or
of Shareholder under this Agreement.
Shareholder further agrees not to enter into any agreement or
understanding with any person the effect of which would be inconsistent with or
violative of any provision contained in this Section 1.2.
Shareholder may vote on all other matters in a manner
determined in Shareholder's sole discretion. This Agreement is intended to bind
Shareholder only with respect to the voting of Shares as Shareholder herein, and
shall not prohibit Shareholder from acting in accordance with Shareholder's
fiduciary duties as an officer or director of Company.
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1.3 Transfer and Other Restrictions.
(a) Prior to the termination of this Agreement pursuant to
Section 3 below, Shareholder agrees not to, directly or indirectly:
(i) except pursuant to the terms of the Merger Agreement,
offer for sale, Transfer or otherwise dispose of, or enter into any
contract, option or other arrangement or understanding with respect to or
consent to the offer for sale, Transfer or other disposition of any or all
of the Subject Securities or any interest therein except as provided in
Section 1.2 hereof;
(ii) grant any proxy, power of attorney, deposit any of the
Subject Securities into a voting trust or enter into a voting agreement or
arrangement with respect to the Subject Securities except as provided in
this Agreement; or
(iii) take any other action that would make any representation
or warranty of Shareholder contained herein untrue or incorrect or have
the effect of preventing or disabling Shareholder from performing its
obligations under this Agreement.
(b) This Section 1.3 shall not prohibit a Transfer of Subject
Securities by Shareholder (A) to any member of Shareholder's immediate family,
or to a trust for the benefit of Shareholder or any member of Shareholder's
immediate family, or (B) upon the death of Shareholder; provided however, that
Shareholder will not effect any such Transfer unless and until the transferee
agrees to be bound by and executes an agreement in the form of this Agreement
with respect to the Shares to be Transferred. To the extent Shareholder is, as
of the date hereof, party to a contract or agreement that requires Shareholder
to Transfer Shares to another person or entity (excluding a contract or
agreement pledging Shares to the Company), Shareholder will not effect any such
Transfer unless and until the transferee agrees to be bound by and executes an
agreement in the form of this Agreement with respect to the Shares to be
Transferred.
1.4 Irrevocable Proxy. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Parent a proxy in the form attached
hereto as Exhibit I (the "PROXY"), which shall be irrevocable, with respect to
the Shares, subject to the other terms of this Agreement.
2. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER.
(a) Shareholder is the record and beneficial owner of, or
Shareholder exercises voting power over, the shares of Company Common Stock
indicated on the final page of this Agreement, which, on and as of the date
hereof, are free and clear of any Encumbrances that would adversely affect the
ability of Shareholder to carry out the terms of this Agreement. The number of
Shares set forth on the signature pages hereto are the only Shares beneficially
owned by such Shareholder and, except as set forth on such signature pages, the
Shareholder holds no options or warrants to purchase or rights to subscribe for
or otherwise acquire any
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securities of the Company and has no other interest in or voting rights with
respect to any securities of the Company.
(b) Shareholder has the requisite capacity, power and
authority to enter into this Agreement and to consummate the transactions
contemplated by this Agreement. The execution and delivery of this Agreement by
Shareholder and the consummation by Shareholder of the transactions contemplated
by this Agreement have been duly authorized by all necessary action. This
Agreement has been duly executed and delivered by Shareholder and constitutes a
valid and binding obligation of Shareholder, enforceable against Shareholder in
accordance with its terms, except (i) as the same may be limited by applicable
bankruptcy, insolvency, moratorium or similar laws of general application
relating to or affecting creditors' rights, and (ii) for the limitations imposed
by general principles of equity. The execution and delivery of this Agreement
does not, and the consummation of the transactions contemplated by this
Agreement and compliance with the provisions of this Agreement will not,
conflict with, or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation which would result in the
creation of any Encumbrance (as defined in the Merger Agreement) upon any of the
Shares owned by Shareholder under, any provision of applicable law or regulation
or of any agreement, judgment, injunction, order, decree, or other instrument
binding on Shareholder or any Shares owned by Shareholder. No consent, approval,
order or authorization of any Governmental Entity is required by or with respect
to Shareholder in connection with the execution and delivery of this Agreement
by Shareholder or the consummation by Shareholder of the transactions
contemplated by this Agreement, except (i) for applicable requirements, if any,
of the Securities Exchange Act of 1934, as amended, and the rules and
regulations thereunder, and (ii) where the failure to obtain such consents,
approvals, orders or authorizations would not prevent or materially delay the
performance by Shareholder of his, her or its obligations under this Agreement.
If this Agreement is being executed in a representative or fiduciary capacity,
the person signing this Agreement has full power and authority to enter into and
perform such Agreement.
3. TERMINATION. This Agreement shall terminate and shall have no further
force or effect as of the first to occur of the following (such date, the
"EXPIRATION DATE"): (i) such date and time as the Merger shall become effective
in accordance with the terms and provisions of the Merger Agreement and (ii)
such date and time as the Merger Agreement shall have been validly terminated
pursuant to Article 7 thereof.
4. MISCELLANEOUS.
4.1 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.
4.2 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
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this Agreement nor any of the rights, interests or obligations of the parties
hereto may be assigned by either of the parties without the prior written
consent of the other. Any purported assignment in violation of this Section
shall be void.
4.3 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.
4.4 Specific Performance; Injunctive Relief; Attorneys Fees. The
parties hereto acknowledge that Parent will be irreparably harmed and that there
will 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 and Shareholder hereby irrevocably and
unconditionally waives any objection to Parent seeking so to enforce such
covenants and agreements by specific performance, injunctive relief and other
means. If any action, suit or other proceeding (whether at law, in equity or
otherwise) is instituted concerning or arising out of this Agreement or any
transaction contemplated hereunder, the prevailing party shall recover, in
addition to any other remedy granted to such party therein, all such party's
costs and attorneys fees incurred in connection with the prosecution or defense
of such action, suit or other proceeding.
4.5 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly given upon delivery either personally or by
commercial delivery service, or sent via facsimile (receipt confirmed) to the
parties at the following address or facsimile numbers (or at such other address
or facsimile numbers for a party as shall be specified by like notice):
If to Parent:
Progress Software Corporation
00 Xxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Chief Executive
Officer
with copies to:
Progress Software Corporation
00 Xxx Xxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxxxxx, Vice
President and General Counsel
and
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Xxxxx Xxxx LLP
Seaport World Trade Center West
000 Xxxxxxx Xxxxxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx, Esq. and
Xxxxxxx X. Xxxx, Esq.
If to Shareholder, to the address for notice set forth on the last
page hereof.
with a copy to:
Xxxxxx Xxxxxx - Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
Any party hereto may by notice so given provide and change its address for
future notices hereunder.
4.6 Governing Law; Submission to Jurisdiction. 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 law thereof. The parties hereby irrevocably and
unconditionally consent to submit to the exclusive jurisdiction of the courts of
the United States of America located in Boston, Massachusetts for any actions,
suits or proceedings arising out of or relating to this Agreement (and the
parties agree not to commence any action, suit or proceeding relating thereto
except in such courts), and further agree that service of any process, summons,
notice or document by U.S. certified mail shall be effective service of process
for any action, suit or proceeding brought against the parties in any such
court. The parties hereby irrevocably and unconditionally waive any objection to
the laying of venue of any action, suit or proceeding arising out of this
Agreement, in the courts of the United States of America located in Boston,
Massachusetts, and hereby further irrevocably and unconditionally waive and
agree not to plead or claim in any such court that any such action, suit or
proceeding brought in any such court has been brought in an inconvenient forum.
4.7 Entire Agreement. The Merger Agreement, this Agreement and the
Proxy granted hereunder constitute and contain the entire agreement and
understanding of the parties with respect to the subject matter hereof and
supersede any and all prior negotiations, correspondence, agreements,
understandings, duties or obligations between the parties respecting the subject
matter hereof.
4.8 Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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4.9 Captions. The captions to sections of this Agreement have been
inserted only for identification and reference purposes and shall not be used to
construe or interpret this Agreement.
* * * * *
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement
to be executed as of the date first above written.
PROGRESS SOFTWARE CORPORATION
By: ___________________________________
Name:
Title:
SHAREHOLDER:
(Shareholder Name)
Shareholder's Address for Notice:
_______________________________________
_______________________________________
Attention:
Outstanding Shares of Company Common
Stock Beneficially Owned by
Shareholder:
____________________________________
Options, Warrants or Rights to
purchase Company Common Stock
Beneficially Owned by Shareholder:
____________________________________
EXHIBIT I
IRREVOCABLE PROXY
The undersigned stockholder (the "SHAREHOLDER") of Persistence Software,
Inc., a Delaware corporation (the "COMPANY"), hereby irrevocably appoints and
constitutes the members of the Board of Directors of Progress Software
Corporation ("PARENT") and each such Board member (collectively, the
"PROXYHOLDERS"), the agents, attorneys-in-fact and proxies of the undersigned,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the shares of capital stock of the Company
which are listed below (the "SHARES"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof and
prior to the date this proxy terminates, to vote the Shares as follows: the
Proxyholders 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 the Shares) of
the undersigned at every annual, special or adjourned meeting of the Company
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, (i) in favor of adoption and approval of the Agreement and Plan of
Merger (the "MERGER AGREEMENT") among Parent, PSI Acquisition Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of Parent ("MERGER SUB") and
the Company, and the approval of the merger of Merger Sub with and into the
Company (the "MERGER") and the other actions contemplated by the Merger
Agreement and any actions required in furtherance thereof, and (ii) against
approval of any proposal made in opposition to or in competition with
consummation of the Merger, including, without limitation, any Acquisition
Proposal or Superior Offer (each as defined in the Merger Agreement) or any
action or agreement that would result in a breach in any respect of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or of the Shareholder under that certain
Voting Agreement, dated as of September 26, 2004, by and between Parent and the
Shareholder (the "VOTING AGREEMENT").
The Proxyholders may not exercise this proxy on any other matter. The
Shareholder may vote the Shares on all matters other than those set forth in the
immediately preceding paragraph. The proxy granted by the Shareholder to the
Proxyholders hereby is granted as of the date of this Irrevocable Proxy in order
to secure the obligations of the Shareholder set forth in Section 1 of the
Voting Agreement, and is irrevocable and coupled with an interest in such
obligations and in the interests in the Company to be purchased and sold
pursuant to the Merger Agreement.
This proxy will terminate upon the termination of the Voting Agreement in
accordance with its terms. Upon the execution hereof, all prior proxies given by
the undersigned with respect to the Shares and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof are
hereby revoked and no subsequent proxies will be given until such time as this
proxy shall be terminated in accordance with its terms. Any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned. The undersigned Shareholder authorizes the Proxyholders to file
this proxy and any substitution or revocation of substitution with the Secretary
of the Company and with any Inspector of Elections at any meeting of the
shareholders of the Company.
This proxy is irrevocable and shall survive the insolvency,
incapacity, death or liquidation of the undersigned. Dated: September
26, 2004.
______________________________________
Signature
Name (and Title)
Shares of Company Common Stock beneficially owned:
___________
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