FORM OF
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into as of
September __, 2001 by and among Warburg Pincus Private Equity VIII, L.P.
("INVESTOR"), the stockholder of Evolve Software, Inc. whose name appears on the
signature page of this Agreement (the "STOCKHOLDER"), and, if applicable, solely
for purposes of Article IV hereof, the individual identified on EXHIBIT "A"
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hereto (the "SPOUSE").
WHEREAS, as of the date hereof, the Stockholder owns beneficially, or
of record, or has the power to vote, or direct the vote of, the number of shares
of Common Stock, par value $0.001 per share ("COMPANY COMMON STOCK"), of Evolve
Software, Inc., a Delaware corporation (the "COMPANY") as set forth on EXHIBIT
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"B" hereto (all such Company Common Stock and any shares of Company Common Stock
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of which ownership of record or the power to vote is hereafter acquired by the
Stockholder prior to the termination of this Agreement being referred to herein
as the "SHARES").
WHEREAS, concurrently with the execution and delivery of this
Agreement, Investor and the Company are entering into a Series A Preferred Stock
Purchase Agreement of even date herewith (as the same may be amended from time
to time, the "PURCHASE AGREEMENT") which provides, upon the terms and subject to
the conditions thereof, for Investor's purchase of preferred stock to be issued
by the Company (the "INVESTMENT"). Capitalized terms used but not defined in
this Agreement shall have the respective meanings ascribed to them in the
Purchase Agreement.
WHEREAS, as a condition to the willingness of Investor to enter into
the Purchase Agreement, Investor has requested that the Stockholder agrees, and,
in order to induce Investor to enter into the Purchase Agreement, the
Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Purchase Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
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SECTION 1.01. Vote in Favor of Investment and Related Matters.
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During the period commencing on the date hereof and terminating at the earliest
to occur of (a) the approval by the Company's stockholders of each of the
matters described herein, (b) the termination of the Purchase Agreement
according to the terms set forth therein, (c) the repayment of any convertible
promissory notes issued pursuant to that certain side Letter Agreement between
the Investor and the Company dated September __, 2001, and (d) the termination
of this Agreement by mutual consent of the parties (the "TERM"), the
Stockholder, solely in the Stockholder's capacity as a stockholder of the
Company, agrees to vote (or cause to be voted) all of the Shares at any meeting
of the stockholders of the Company, and in any action by written consent of the
stockholders of the Company, (i) in favor of the approval of the transactions
contemplated by the Purchase Agreement including the issuance of capital stock
of the Company pursuant thereto, (ii) in favor, to the extent it is necessary,
of an increase in the number of authorized, but unissued, shares of Company
Common Stock, in an amount determined by the Company's Board of Directors, (iii)
in favor, if proposed by the Company's Board of Directors, of a reverse stock
split of the Company's Common Stock, and (iv) in favor of any other matter
directly relating to and in furtherance of consummation of the transactions
contemplated by the Purchase Agreement.
SECTION 1.02. Grant of Proxy; Further Assurances.
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(a) The Stockholder, by this Agreement, with respect to the Shares,
does hereby revoke any and all previous proxies granted with respect to the
Shares, and irrevocably constitute and appoint Investor, or any nominee of
Investor, with full power of substitution, as his, her or its true and lawful
attorney and proxy, for and in his, her or its name, place and stead, to vote
each of such Shares as the Stockholder's proxy, at every annual, special or
adjourned meeting of the stockholders of the Company (including the right to
sign his, her or its name (as shareholder) to any consent, certificate or other
document relating to the Company that may be permitted or required by applicable
law) in accordance with the provisions set forth in Section 1.01. The
Stockholder acknowledges receipt and review of a copy of the Purchase Agreement.
(b) The Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Investor the power to carry out the provisions of this Agreement.
(c ) The Stockholder will not, during the Term, sell or otherwise
dispose of the Shares unless each transferee of any Shares shall execute and
deliver to Investor an identical form of this Agreement prior to the
effectiveness of such transfer. The Stockholder also agrees and consents to the
entry of stop transfer instructions with the Company's transfer agent and
registrar against the transfer of the Shares except in compliance with the
foregoing restriction.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE STOCKHOLDERS
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The Stockholder hereby represents and warrants and covenants to
Investor as follows:
SECTION 2.01. Organization; Authorization. The Stockholder has all
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legal capacity to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. This Agreement has been duly executed and
delivered by or on behalf of the Stockholder and, assuming its due
authorization, execution and delivery by Investor, constitutes a legal, valid
and binding obligation of the Stockholder, enforceable against the Stockholder
in accordance with its terms.
SECTION 2.02. No Conflict; Required Filings and Consents.
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(a) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will not, (i)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which it or any of the Stockholder's
properties is bound or affected, or (ii) result in any breach of or constitute a
default (or an event that with notice or lapse of time or both would become a
default) under, or give to another party any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of the Stockholder, (including,
without limitation, the Shares) pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or any of the Stockholder's properties is bound or affected. There
is no beneficiary or holder of a voting trust certificate or other interest of
any trust of which the Stockholder is a trustee whose consent is required for
the execution and delivery of this Agreement or the consummation by the
Stockholder of the transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder
does not, and the performance of this Agreement by the Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or
materially delay the performance by the Stockholder of the Stockholder's
obligations under this Agreement. Except as set forth in the Amended and
Restated Stockholder Rights Agreement dated June 28, 2000 among the Company and
various Stockholders, the Stockholder does not have any understanding in effect
with respect to the voting or transfer of any Shares.
SECTION 2.03. Litigation. There is no private or governmental
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action, suit, proceeding, claim, arbitration or investigation pending before any
agency, court or tribunal, foreign or domestic, or, to the knowledge of the
Stockholder or any of the Stockholder's affiliates, threatened against the
Stockholder or any of the Stockholder's affiliates or any of the Stockholder's
properties or any of its officers or directors, in the case of a corporate
entity (in their capacities as such) that, individually or in the aggregate,
would reasonably be expected to materially delay or impair the Stockholder's
ability to consummate the transactions contemplated by this Agreement. There is
no judgment, decree or order against the Stockholder or any of the Stockholder's
affiliates, or, to the knowledge of the Stockholder of any of the Stockholder's
affiliates, any of its directors or officers, in the case of a corporate entity
(in their capacities as such), or any of its partners (in the case of a
partnership) that would prevent, enjoin, alter or materially delay any of the
transactions contemplated by this Agreement, or that would reasonably be
expected to have a material adverse effect on the Stockholder's ability to
consummate the transactions contemplated by this Agreement.
SECTION 2.04. Title to Shares. The Stockholder is the record or
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beneficial owner of the Shares free and clear of all encumbrances, proxies or
voting restrictions that would prevent the Stockholder from satisfying its
obligations pursuant to this Agreement. The Shares are all the securities of
the Company owned of record or beneficially by the Stockholder on the date of
this Agreement.
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SECTION 2.05. Finder's Fees. No investment banker, broker, finder or
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other intermediary is entitled to a fee or commission from Investor or the
Company in respect of this Agreement based upon any arrangement or agreement
made by or on behalf of the Stockholder.
ARTICLE III
GENERAL PROVISIONS
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SECTION 3.01. Notices. All notices and other communications given or
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made pursuant hereto shall be in writing and shall be given (and shall be deemed
to have been duly given upon receipt) by delivery in person, by cable, telecopy,
telegram or telex or by registered or certified mail (postage prepaid, return
receipt requested) to the respective parties at the following addresses (or at
such other addresses as shall be specified by notice given in accordance with
this Section 3.01):
(a) If to the Investor:
Warburg Pincus Private Equity VIII, L.P.
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxx X. Xxxxxxx, General Counsel
Facsimile No.: 000-000-0000
with a copy to:
Mr. Xxxxx Xxxxxx
Warburg Pincus LLC
000 Xxx Xxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Facsimile No.: 000-000-0000
and a copy to:
Xxxxx, Xxxx & Xxxxxxxx
0000 Xx Xxxxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx Xxxxxx
Facsimile No.: (000) 000-0000
(b) If to the Stockholder, to the address set forth as the signature
page hereto.
SECTION 3.02. Headings. The headings contained in this Agreement are
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for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
SECTION 3.03. Severability. If any term or other provision of this
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Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
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nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible to the fullest extent
permitted by applicable law in an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 3.04. Entire Agreement. This Agreement constitutes the
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entire agreement of the parties and supersedes all prior agreements and
undertakings, both written and oral, between the parties, or any of them, with
respect to the subject matter hereof. This Agreement may not be amended or
modified except in an instrument in writing signed by, or on behalf of, the
parties hereto.
SECTION 3.05. Assignment. The provisions of this Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, provided that no party may assign, delegate or
otherwise transfer any of its rights, interests or obligations under this
Agreement without the prior written consent of the other parties hereto, except
that Investor may assign, delegate or otherwise transfer any of its rights,
interests or obligations under this Agreement to an affiliate without the
consent of the Stockholder.
SECTION 3.06. Fees and Expenses. Except as otherwise provided
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herein, all costs and expenses (including, without limitation, all fees and
disbursements of counsel, accountants, investment bankers, experts and
consultants to a party) incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such costs
and expenses.
SECTION 3.07. Specific Performance. The parties hereto agree that
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irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 3.08. Governing Law. This Agreement shall be governed by,
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and construed in accordance with, the laws of the State of Delaware applicable
to contracts executed in and to be performed in that State. All actions and
proceeding arising out of or relating to this Agreement shall be heard and
determined in the courts located in the State of Delaware.
SECTION 3.09. No Waiver. No failure or delay by any party in
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exercising any right, power or privilege hereunder shall operate as a waiver
thereof nor shall any single or partial exercise thereof preclude any other or
further exercise thereof or the exercise of any other right, power or privilege.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 3.10. Counterparts. This Agreement may be executed in one or
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more counterparts, and by the different parties hereto in separate counterparts,
each of which when executed shall be deemed to be an original but all of which
taken together shall constitute one and the same agreement.
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ARTICLE IV
REPRESENTATIONS AND WARRANTIES:
COVENANTS OF THE SPOUSES
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The Spouse hereby represents and warrants and covenants to Investor as
follows:
SECTION 4.01. Waiver of Community Property Rights. The Spouse shall
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not assert or enforce, and does hereby waive, any rights granted under any
community property statute with respect the Shares which would adversely affect
the covenants made by the Stockholder pursuant to this Agreement; The Spouse
acknowledges receipt and review of a copy of the Purchase Agreement and this
Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WARBURG PINCUS PRIVATE EQUITY
VIII, L.P.
By: _______________________________
STOCKHOLDER
____________________________________
By: ________________________________
Address:
____________________________________
____________________________________
SPOUSE
____________________________________
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