VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of March 20, 2001 by and
among DIGITAL RIVER, INC., a Delaware corporation ("Buyer"), CALICO COMMERCE,
INC., a Delaware corporation and XXXXXXXXXX.XXX, CO., a Delaware corporation
(Calico Commerce, Inc. and XxxxxxxXxx.xxx, Co. collectively defined herein as,
"Stockholder").
RECITALS
A. Pursuant to an Asset Purchase Agreement, dated as of the date
hereof, by and between Buyer and Stockholder (the "Purchase Agreement"), Buyer
will purchase certain assets and assume certain liabilities of Stockholder in
exchange for shares of common stock of Buyer to be issued to Stockholder on the
date hereof, as well as after the date hereof pursuant to an earn-out, as set
forth in Section 1.4 of the Purchase Agreement.
B. In order to induce Buyer to enter into the Purchase Agreement,
Stockholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "BUYER COMMON STOCK" shall mean the common stock, par
value $0.01 per share, of Buyer.
(b) "CHANGE OF CONTROL" shall mean (i) a sale, exchange,
lease or other disposition of all or substantially all of the assets of
Stockholder, including the Subject Securities; (ii) a merger or consolidation of
Stockholder with or into any other entity or entities, or any other similar
corporate reorganization, in which the holders of capital stock of Stockholder
immediately prior to such event hold less than a majority of the voting power of
the securities of the controlling successor entity, or (iii) any other
transaction or series of related transactions in which securities representing a
majority of Stockholder's voting power is sold or otherwise transferred
(excluding any merger, consolidation or similar corporate reorganization
effected solely to change the domicile of Stockholder to a location within the
United States or in which the holders of capital stock of Stockholder
immediately prior to such transaction or series of transactions hold more than a
majority of the voting power of the securities of the controlling successor
entity).
(c) "EXPIRATION DATE" shall mean the earlier of (i) the
five-year anniversary of the date hereof and (ii) the sale of all the Subject
Securities in open market transactions, none of which are Restricted Open Market
Transactions.
(d) 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.
(e) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(f) "SUBJECT SECURITIES" shall mean: (i) all securities of Buyer
(including all shares of Buyer Common Stock and all options, warrants and other
rights to acquire shares of Buyer Common Stock) Owned by Stockholder as of the
date of this Agreement; and (ii) all additional securities of Buyer (including
all additional shares of Buyer Common Stock and all additional options, warrants
and other rights to acquire shares of Buyer Common Stock) issued to Stockholder
by Buyer in connection with the Purchase Agreement.
(g) A Person shall be deemed to have effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, grants an option with
respect to, transfers or disposes of such security or any interest in such
security; or (ii) enters into an agreement or commitment contemplating the
possible sale of, grant of an option with respect to, transfer of or disposition
of such security or any interest therein; PROVIDED, HOWEVER, that:
(a)any open market transaction shall not constitute a
Transfer (and the transferee in such an open market
transaction shall be free of any obligations under this
Agreement), unless such transaction is in the form of a
bulk trade of Subject Securities (1) to any transferee
engaged, as a principal part of its business, in
providing e-commerce services, or (2) that, when combined
with all other bulk trades of Subject Securities by
Stockholder to the same transferee and its affiliates (as
such term is defined under the rules promulgated under
the Securities Exchange Act of 1934), involves 5% or more
of Buyer's outstanding shares of common stock as shown by
the then most recent report or statement published by
Buyer (a "RESTRICTED OPEN MARKET TRANSACTION");
(b)any pledge or encumbrance of a Subject Security, or any
agreement or commitment contemplating the possible pledge
of or encumbrance of, any Subject Security, shall not
constitute a Transfer, provided that any foreclosure with
respect to 5% or more of Buyer's outstanding shares of
common stock as shown by the then most recent report or
statement published by Buyer thereon shall be deemed a
Transfer.
SECTION 2. TRANSFER OF SHARES
2.1 TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT. During the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall not cause or
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permit any Transfer of any of the Subject Securities to be effected unless each
Person to which any of such Subject Securities, or any interest in any of such
Subject Securities, is or may be Transferred shall have: (a) executed a
counterpart of this Voting Agreement and a proxy in the form attached hereto as
Exhibit A (with such modifications as Buyer may reasonably request); and (b)
agreed to hold such Subject Securities (or interest in such Subject Securities)
subject to all of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. During the period from the date of this
Voting Agreement through the Expiration Date, Stockholder shall ensure that: (a)
none of the Subject Securities is deposited into a voting trust; and (b) except
with respect to the voting of the Shares not restricted by this Voting
Agreement, no proxy is granted, and no voting agreement or similar agreement or
transfer of voting rights is entered into, with respect to any of the Subject
Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT.
(a) During the period from the date of this Voting Agreement
through the Expiration Date:
(i) at any meeting of stockholders of Buyer, however
called, Stockholder shall (unless otherwise directed in writing by Buyer)
cause all outstanding Subject Securities that are Owned by Stockholder as
of the record date fixed for such meeting to be voted in favor of those
nominees to Buyer's Board of Directors that have been designated by
Buyer's Board of Directors;
(ii) in the event written consents are solicited or
otherwise sought from stockholders of Buyer with respect to the election
of directors to Buyer's Board of Directors, Stockholder shall, with
respect to all Subject Securities that are Owned by Stockholder as of the
record date fixed for the consent to the proposed action, seek written
instruction from Buyer's Board of Directors in connection therewith, and
shall act in accordance with such written instructions with respect to
such written consent or written consents.
(b) Stockholder shall not effect a Change of Control prior to
the Expiration Date without ensuring that its successor ("Successor"),
immediately following such Change of Control, will execute a proxy substantially
in the form attached hereto as Exhibit B and will execute an amendment to this
Voting Agreement to provide that, during the period from the date of such Change
of Control through the Expiration Date:
(i) at any meeting of stockholders of Buyer, however
called, Successor shall (unless otherwise directed in writing by Buyer)
cause all outstanding Subject Securities that are Owned by Successor as of
the record date fixed for such meeting to be voted in accordance with the
written instructions of Buyer's Board of Directors;
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(ii) in the event written consents are solicited or
otherwise sought from stockholders of Buyer, Successor shall, with respect
to all Subject Securities that are Owned by Successor as of the record
date fixed for the consent to the proposed action, seek written
instruction from Buyer's Board of Directors in connection therewith, and
shall act in accordance with such written instructions with respect to
such written consent or written consents.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Voting
Agreement, Stockholder shall deliver to Buyer a proxy in the form attached to
this Voting Agreement as Exhibit A, which shall be irrevocable to the fullest
extent permitted by law, with respect to the shares referred to therein (the
"Proxy").
(b) Stockholder shall, at its own expense, perform such
further acts and execute such further documents and instruments as may
reasonably be required to vest in Buyer the power to carry out and give effect
to the provisions of this Voting Agreement.
SECTION 4. MISCELLANEOUS
4.1 SURVIVAL OF COVENANTS AND AGREEMENTS. The covenants and agreements
made by Stockholder and Buyer in Section 4 of this Voting Agreement shall
survive the Expiration Date.
4.2 INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to Buyer, Stockholder shall indemnify and hold
harmless Buyer against and from any loss, damage, injury, decline in value, lost
opportunity, liability, claim, demand, settlement, judgment, award, fine,
penalty, tax, fee (including reasonable attorneys' fees), charge, cost
(including reasonable costs of investigation) or expense of any nature (whether
or not relating to any third-party claim) that is directly or indirectly
suffered or incurred at any time (whether during or after the Expiration Period)
by Buyer, or to which Buyer otherwise becomes subject at any time (whether
during or after the Expiration Period), and that arises directly or indirectly
out of or by virtue of, or relates directly or indirectly to, any failure on the
part of Stockholder to observe, perform or abide by, or any other breach of, any
restriction, covenant, obligation or other provision contained in this Voting
Agreement
4.3 SEVERABILITY. If any provision of this Voting Agreement or any
part of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting
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Agreement is separable from every other provision of this Voting Agreement, and
each part of each provision of this Voting Agreement is separable from every
other part of such provision.
4.4 ENTIRE AGREEMENT. This Voting 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 Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
4.5 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither
this Voting 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 Voting Agreement shall be binding upon Stockholder
and, to the extent provided herein, its successors and assigns, and shall inure
to the benefit of Buyer and its successors and assigns. Without limiting any of
the restrictions set forth in Section 2 or elsewhere in this Voting Agreement,
this Voting Agreement shall be binding upon any Person to whom any Subject
Securities are Transferred. Nothing in this Voting Agreement is intended to
confer on any Person (other than Buyer and its successors and assigns) any
rights or remedies of any nature.
4.6 SPECIFIC PERFORMANCE. Irreparable damage would occur in the event
that any of the provisions of this Voting Agreement or the Proxy was not
performed in accordance with its specific terms or was otherwise breached. In
the event of any breach or threatened breach by Stockholder of any covenant or
obligation contained in this Voting Agreement or in the Proxy, Buyer 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 Buyer shall not 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 4.6, and Stockholder
irrevocably waives any right it may have to require Buyer to obtain, furnish or
post any such bond or similar
4.7 NON-EXCLUSIVITY. The rights and remedies of Buyer under this
Voting 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 Buyer under this Voting Agreement,
and the obligations and liabilities of Stockholder under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under all applicable common law requirements and statutes, rules and
regulations. Nothing in this Voting Agreement shall limit any of Stockholder's
obligations, or the rights or remedies of Buyer, under the Purchase Agreement;
and nothing in the Purchase Agreement shall limit any of Stockholder's
obligations, or any of the rights or remedies of Buyer, under this Voting
Agreement and no breach on the part of Buyer of any covenant or obligation
contained in the Purchase Agreement or any other agreement shall limit or
otherwise affect any right or remedy
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of Buyer under this Voting Agreement; provided that if Buyer breaches a
post-closing covenant in the Purchase Agreement and the result of such breach
materially adversely affects Seller's benefit of the bargain in entering into
the Purchase Agreement and the transactions contemplated thereby, then this
sentence shall have no effect.
4.8 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to
this Voting Agreement or the Proxy or the enforcement of any provision of this
Voting Agreement or the Proxy may be brought or otherwise commenced in any state
or federal court located in Santa Xxxxx County in the State of California. Each
party:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each state and federal court located in Santa Xxxxx County in
the State of California (and each appellate court therefor located in the State
of California), in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to Stockholder at the address set forth in
Section 4.9, or such other address with respect to which Buyer in given written
notice in accordance with Section 4.9, shall constitute effective service of
such process, summons, notice or document for purposes of any such legal
proceeding;
(iii) agrees that each such state and federal court located in
State of California shall be deemed to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any such state or federal
court located in the State of California any claim that Stockholder is not
subject personally to the jurisdiction of such court, that such legal proceeding
has been brought in an inconvenient forum, that the venue of such proceeding is
improper or that this Voting Agreement or the subject matter of this Voting
Agreement may not be enforced in or by such court.
(c) EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT OR THE
PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE PROXY.
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4.9 NOTICES. All notices and other communications required or
permitted under this Agreement and the transactions contemplated hereby shall be
in writing and shall be deemed to have been duly given, made and received on the
date when delivered by hand delivery with receipt acknowledged, or upon the next
"Business Day" (meaning a day other than a Saturday or a Sunday, or a federal
holiday upon which offices of the federal government are not open for business)
following receipt of facsimile transmission, or upon the fifth day after deposit
in the United States mail, registered or certified with postage prepaid, return
receipt requested, addressed as set forth below:
(a) If to Buyer:
DIGITAL RIVER, INC.
0000 Xxxx 00xx Xxxxxx, Xxxxx 000
Xxxx Xxxxxxx, Xxxxxxxxx 00000
Attention: Xxxx Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (not constituting notice) to:
XXXXXX GODWARD LLP
Xxx Xxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxxxxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(b) If to Seller:
CALICO COMMERCE, INC.
000 Xxxx Xxx Xxxxxx Xxxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attention: Xxxx X. Xxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy (not constituting notice) to:
XXXX XXXX XXXX & FREIDENRICH LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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Any party may alter the address to which its communications
are to be sent by giving notice of such change in conformity with the provisions
of this Section 4.9 for the giving of notice.
4.10 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
4.11 ATTORNEYS' FEES. If any action or other proceeding relating to
this Voting Agreement or the enforcement of any provision of this Voting
Agreement is brought against any party to this Voting Agreement, 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).
4.12 ELECTION OF DIRECTORS. Neither Stockholder, nor any successor or
assignee of Stockholder, nor any officer, director, stockholder, partner,
employee or agent of either, shall be deemed to have made any representation or
warranty as to the fitness or competence of a nominee to Buyer's Board of
Director in connection with the entering into of this Voting Agreement by
Stockholder or the voting in favor of such nominee as required by the provisions
of this Voting Agreement.
4.13 WAIVER.
(a) No failure on the part of Buyer to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Buyer in exercising any power, right, privilege or remedy under this Voting
Agreement, except to the extent such exercise is barred by the applicable
statute of limitations, 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.
(b) Buyer shall not be deemed to have waived any claim arising
out of this Voting Agreement, or any power, right, privilege or remedy under
this Voting 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 Buyer; and any such waiver shall not be applicable or
have any effect except in the specific instance in which it is given.
4.14. CONSTRUCTION.
(a) The parties hereto 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 Voting Agreement.
(b) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" are intended to refer to Sections of this Voting
Agreement.
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IN WITNESS WHEREOF, Buyer and Stockholder have caused this
Voting Agreement to be executed as of the date first written above.
"BUYER"
DIGITAL RIVER, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: CEO
-----------------------------
"STOCKHOLDER"
CALICO COMMERCE, INC.,
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: President & CEO
-----------------------------
XXXXXXXXXX.XXX, CO.
a Delaware corporation
By: /s/ Xxxx Xxxxxxx
-----------------------------
Name: Xxxx Xxxxxxx
-----------------------------
Title: President & CEO
-----------------------------
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned company, XXXXXXXXXX.XXX, CO., a Delaware corporation
(the "Stockholder"), is a stockholder of DIGITAL RIVER, INC., a Delaware
corporation (the "Buyer"), and hereby irrevocably (to the fullest extent
permitted by law) appoints and constitutes Xxxx X. Xxxxxxx and Xxxxxx X.
Xxxxxxxx, and each of them, the attorneys and proxies of the undersigned with
power of substitution and resubstitution in accordance with that certain Voting
Agreement, dated as of the date hereof, by and between the Stockholder and Buyer
(the "Voting Agreement"), to the full extent of the undersigned's rights, as
record holder, with respect to the election of directors to Buyer's board of
directors, to vote (i) the outstanding shares of capital stock of Buyer owned of
record by the undersigned 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 Buyer which the undersigned may acquire from Buyer on or after
the date hereof. (The shares of the capital stock of Buyer 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 undersigned with respect to any of the Shares are hereby revoked, and the
undersigned 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 the Voting Agreement, and is granted in consideration of
Buyer entering into the Asset Purchase Agreement, dated as of the date hereof,
by and between Buyer and Stockholder (the "Purchase Agreement").
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote any of the Shares at any time until the earlier to
occur of (i) the five-year anniversary of the date hereof and (ii) the sale of
all the Shares in open market transactions, none of which are Restricted Open
Market Transactions (as defined in the Voting Agreement) (the "Expiration
Date"), at any meeting of the stockholders of Buyer, however called, or in
connection with any solicitation of written consents from stockholders of Buyer,
in favor of those nominees to Buyer's Board of Directors that have been
designated by Buyer's Board of Directors.
The attorneys and proxies may not vote the Shares except as set forth
in the foregoing paragraph.
This proxy shall be binding upon the successors and assigns of the
undersigned (including any transferee of any of the Shares pursuant to a
Transfer (as defined in the Voting Agreement)).
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If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate on the Expiration Date.
Dated: March __, 2001
XXXXXXXXXX.XXX, INC.
a Delaware corporation
Address: 000 Xxxx Xxx Xxxxxx Xxxxxx
Xxxxx 000
Xxx Xxxx, XX 00000
By:
-----------------------------------------------
Name:
Title:
Number of shares of common stock of
Buyer owned of record as of the date of this
proxy:
--------------------------------------------------
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EXHIBIT B
FORM OF IRREVOCABLE PROXY
The undersigned company, [INSERT NAME OF SUCCESSOR, a ________
corporation (the "Stockholder")], is a stockholder of DIGITAL RIVER, INC., a
Delaware corporation (the "Buyer"), and hereby irrevocably (to the fullest
extent permitted by law) appoints and constitutes Xxxx X. Xxxxxxx and Xxxxxx X.
Xxxxxxxx, and each of them, the attorneys and proxies of the undersigned with
full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to (i) the outstanding shares of capital stock
of Buyer owned of record by the undersigned as successor to Calico Commerce,
Inc., a Delaware corporation ("Calico"), 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 Buyer which the undersigned may acquire from Buyer on
or after the date hereof. (The shares of the capital stock of Buyer 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 undersigned with respect to any of the Shares are hereby
revoked, and the undersigned agrees that no subsequent proxies will be given
with respect to any of the Shares at any time prior to the Expiration Date (as
defined below).
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Voting Agreement, dated as of the date hereof, between
Buyer and the undersigned (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 (i) March __, 2006 and (ii) the sale of all the Shares in open market
transactions, none of which are Restricted Open Market Transactions (as defined
in the Voting Agreement) (the "Expiration Date"), at any meeting of the
stockholders of Buyer, however called, or in connection with any solicitation of
written consents from stockholders of Buyer, on any matters.
This proxy shall be binding upon the successors and assigns of the
undersigned (including any transferee of any of the Shares pursuant to a
Transfer (as defined in the Voting Agreement)).
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If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate on the Expiration Date.
Dated: __________, 200_
[NAME AND ADDRESS OF SUCCESSOR]
By:
-----------------------------------------------
Name:
Title:
Number of shares of common stock of
Buyer owned of record as of the date of this
proxy:
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