EXHIBIT 2
FORM OF PARENT VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is entered into dated as of
March 4, 2002, by and between Captiva Software Corporation, a California
corporation ("the COMPANY"), and _________________ ("STOCKHOLDER").
W I T N E S S E T H:
WHEREAS, Company, Condor Merger Corp. a California corporation and
wholly owned subsidiary of Parent ("MERGER SUB"), and ActionPoint, Inc., a
Delaware corporation (the "PARENT"), propose to enter into an Agreement and Plan
of Merger and Reorganization dated as of the date hereof (as the same may be
amended from time to time, the "MERGER AGREEMENT"; capitalized terms used but
not defined in this Agreement shall have the meanings ascribed to them in the
Merger Agreement), which provides, upon the terms and subject to the conditions
thereof, for the merger (the "MERGER") of Merger Sub with and into the Company;
WHEREAS, as of the date hereof, Stockholder owns beneficially or of
record or has the power to vote, or direct the vote of, the number of shares of
common stock of the Company (the "PARENT COMMON STOCK"), as set forth opposite
such Stockholder's name on EXHIBIT A hereto (all such Parent Common Stock and
options, warrants or other rights to acquire shares of Parent Common Stock of
which ownership of record or beneficially or the power to vote is hereafter
acquired by Stockholder prior to the termination of this Agreement being
referred to herein as the "SHARES"); and
WHEREAS, as a condition to the willingness of the Company to enter into
the Merger Agreement, the Company has requested that Stockholder agree to enter
into this Agreement, and, in order to induce the Company to enter into the
Merger Agreement, 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 Merger Agreement and for
other good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, and intending to be legally bound hereby, the parties
hereto agree as follows:
ARTICLE I
TRANSFER, VOTING AND CONVERSION OF SHARES
SECTION 1.01 TRANSFER OF SHARES. Stockholder shall not, directly or
indirectly, (a) sell, pledge, encumber, assign, transfer or otherwise dispose of
any or all of Stockholder's Shares or any interest in such Shares, except
pursuant to the Merger Agreement or unless the transferee of such Shares shall
agree to hold such Shares subject to the terms of this Agreement by executing
counterpart signature pages hereto and to the Proxy (as defined below), or
(b) deposit any Shares or any interest in such Shares into a voting trust or
enter into a voting agreement or arrangement with respect to any Shares or grant
any proxy with respect thereto (other than as contemplated herein), or (c) enter
into any contract, commitment, option or other arrangement or undertaking (other
than the Merger Agreement) with respect to the direct or indirect acquisition or
sale, assignment, pledge, encumbrance, transfer or other disposition of any
Shares.
SECTION 1.02 VOTE IN FAVOR OF THE MERGER. During the period commencing
on the date hereof and terminating at the Effective Time, Stockholder, solely in
Stockholder's capacity as a Stockholder of Parent, agrees to vote (or cause to
be voted) all of the Shares at any meeting of the Stockholders of Parent or any
adjournment thereof, and in any action by written consent of the Stockholders of
the Company, (i) in favor of the approval of Share Issuance, the Charter
Amendment, the Merger Agreement (including the principal terms thereof) and the
Merger, and in favor of the other transactions contemplated by the Merger
Agreement, (ii) against any Parent Acquisition Transaction or any other action
that could reasonably be expected to delay or not to facilitate approval of the
Merger, (iii) against any action or agreement that could reasonably be expected
to result in a breach of any covenant, representation or warranty or any other
obligation or agreement of Parent under the Merger Agreement or that could
reasonably be expected to result in any of the conditions to the Parent's
obligations under the Merger Agreement not being fulfilled, and (iv) in favor of
any other matter relating to the consummation of the transactions contemplated
by the Merger Agreement.
SECTION 1.03 GRANT OF IRREVOCABLE PROXY. Concurrently with the execution
of this Agreement, Stockholder agrees to deliver to the Company a proxy with
respect to Stockholder's Shares in the form attached hereto as EXHIBIT B (the
"PROXY"), which shall be coupled with an interest and irrevocable to the fullest
extent permissible by law.
SECTION 1.04 TERMINATION. This Agreement, the Proxy granted hereunder
and the obligations of Stockholder pursuant to this Agreement shall terminate
upon the date of the termination of the Merger Agreement pursuant to Article
VIII thereof; provided, however, that the termination of this Agreement shall
not relieve Stockholder from any liability for any previous breach of this
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF STOCKHOLDER
Stockholder hereby represents and warrants to the Company as follows:
SECTION 2.01 AUTHORIZATION; BINDING AGREEMENT. Stockholder has all legal
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy, to perform his, her or its obligations hereunder and thereunder, and
to consummate the transactions contemplated hereby and thereby. This Agreement
and the Proxy have been duly and validly executed and delivered by or on behalf
of Stockholder and, assuming their due authorization, execution and delivery by
or on behalf of Parent, constitute a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with their terms,
subject to (i) the
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effect of any applicable bankruptcy, insolvency, moratorium or similar law
affecting creditors' rights generally and (ii) rules of law governing specific
performance, injunctive relief and other equitable remedies.
SECTION 2.02 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement and the grant of the
Proxy to the Company by Stockholder do not, and the performance of this
Agreement and the grant of the Proxy to the Company by Stockholder will not, (i)
conflict with or violate any statute, law, rule, regulation, order, judgment or
decree applicable to Stockholder or by which Stockholder or any of Stockholder's
properties or assets is bound or affected, (ii) violate or conflict with the
Certificate of Incorporation, Bylaws or other equivalent organizational
documents of Stockholder (if any), or (iii) result in or constitute (with or
without notice or lapse of time or both) any breach of or default under, or give
to another party any right of termination, amendment, acceleration or
cancellation of, or result in the creation of any lien or encumbrance or
restriction on any of the property or assets of Stockholder pursuant to, any
note, bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Stockholder is a party or
by which Stockholder or any of Stockholder's properties or assets is bound or
affected. There is no beneficiary or holder of a voting trust certificate or
other interest of any trust of which Stockholder is a trustee whose consent is
required for the execution and delivery of this Agreement or the consummation by
Stockholder of the transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement and the grant of the
Proxy to the Company by Stockholder do not, and the performance of this
Agreement and the grant of the Proxy to the Company by Stockholder will not,
require any consent, approval, authorization or permit of, or filing with or
notification to, any third party or any governmental or regulatory authority,
domestic or foreign, except (i) for applicable requirements, if any, of the
Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT") and (ii) where
the failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, could not prevent or materially delay the
performance by Stockholder of Stockholder's obligations under this Agreement.
Other than a Lock-Up Agreement with Parent dated as of even date herewith,
Stockholder does not have any understanding in effect with respect to the voting
or transfer of any Shares, other than any right of repurchase granted to Parent.
Stockholder is not required to make any filing with or notify any governmental
or regulatory authority in connection with this Agreement, the Merger Agreement
or the transactions contemplated hereby or thereby pursuant to the requirements
of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvement Act of 1976, as amended, and the
rules and regulations promulgated thereunder (the "HSR ACT").
(c) If Stockholder is a natural person and is married, and Stockholder's
Shares constitute community property or if the approval of Spouse is otherwise
needed for this Agreement to be legal, valid and binding on Stockholder, this
Agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding agreement of, Spouse, enforceable against Spouse in accordance
with its terms.
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SECTION 2.03 LITIGATION. There is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending or, to the
knowledge of Stockholder or any of Stockholder's affiliates, threatened before
any agency, administration, court or tribunal, foreign or domestic, against
Stockholder or any of Stockholder's affiliates or any of their respective
properties or any of their respective officers or directors, in the case of a
corporate entity (in their capacities as such), or any of their respective
partners (in the case of a partnership), that, individually or in the aggregate,
could reasonably be expected to materially delay or materially impair
Stockholder's ability to consummate the transactions contemplated by this
Agreement. There is no judgment, decree or order against Stockholder or any of
Stockholder's affiliates, or, to the knowledge of Stockholder or any of
Stockholder's affiliates, any of their respective directors or officers (in
their capacities as such), in the case of a corporate entity, or any of their
respective partners (in the case of a partnership), that, individually or in the
aggregate, could reasonably be expected to prevent, enjoin, alter or materially
delay any of the transactions contemplated by this Agreement, or that,
individually or in the aggregate, could reasonably be expected to have a
material adverse effect on Stockholder's ability to consummate the transactions
contemplated by this Agreement.
SECTION 2.04 TITLE TO SHARES. As of the date of this Agreement,
Stockholder is the record or beneficial owner of the Shares free and clear of
all liens, encumbrances, claims, proxies or voting restrictions other than
pursuant to this Agreement. The shares of Parent Common Stock, including the
options, warrants or other rights to acquire such stock, set forth on EXHIBIT A
hereto, are all of the securities of Parent owned, directly or indirectly, of
record or beneficially by Stockholder on the date of this Agreement.
SECTION 2.05 ABSENCE OF CLAIMS. Stockholder has no claims, actions,
causes of actions, suits, debts, liens, demands, contracts, liabilities,
agreements, costs, expenses, or losses of any type, whether known or unknown,
fixed or contingent, based on any fact or circumstance from the beginning of
time to the date of this Agreement, including, without limitation, any claims
arising from Stockholder's employment with Parent or Stockholders' ownership of
the Shares, whether based on contract, tort, statute, local ordinance,
regulation or any comparable law in any jurisdiction that he, she or it could
assert against Parent or its predecessors, successors, assigns, officers,
directors, Stockholders, employees or agents.
SECTION 2.06 ACCURACY OF REPRESENTATIONS. The representations and
warranties contained in this Agreement are accurate in all respects as of the
date of this Agreement.
ARTICLE III
COVENANTS OF STOCKHOLDER
SECTION 3.01 FURTHER ASSURANCES. From time to time and without
additional consideration, Stockholder shall (at Stockholder's sole expense)
execute and deliver, or cause to be executed and delivered, such additional
transfers, assignments, endorsements, proxies, consents and other instruments,
and shall (at Stockholder's sole expense) take such further actions, as the
Company may reasonably request for the purpose of carrying out and furthering
the intent of this Agreement.
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SECTION 3.02 CONFIDENTIALITY. Stockholder agrees to, and shall use
Stockholder's reasonable best efforts to cause its agents, representatives,
affiliates, employees, officers and directors, in the case of a corporate
entity, to:
(a) treat and hold as confidential (and not disclose or provide access
to any person other than the Company and its agents, representatives,
affiliates, employees, officers and directors) and to refrain from using any
information relating to trade secrets, patent and trademark applications,
product development, price, customer and supplier lists, pricing and marketing
plans, policies and strategies, details of client and consultant contracts,
operations methods, product development techniques, business acquisition plans,
new personnel acquisition plans and all other confidential information with
respect to the Company, Parent, any affiliates of Parent or their businesses;
(b) in the event that Stockholder or any agent, representative,
affiliate, employee, officer or director of Stockholder, in the case of a
corporate entity, becomes legally compelled to disclose any such information,
provide the Company with prompt written notice of such requirement so that the
Company or Parent may seek a protective order or other remedy or waive
compliance with this Section 3.02; and
(c) in the event that such protective order or other remedy is not
obtained, or the Company waives compliance with this Section 3.02 furnish only
that portion of such confidential information that is legally required to be
provided and exercise its reasonable best efforts to obtain assurances that
confidential treatment will be accorded such information; PROVIDED, HOWEVER,
that this Section 3.02 shall not apply to any information that, (i) at the time
of disclosure, is available publicly and was not disclosed in breach of this
Agreement by Stockholder or Stockholder's agents, representatives, affiliates,
employees, officers or directors, in the case of a corporate entity, (ii) must
be disclosed under applicable laws or regulations or judicial or administrative
proceedings (subject to clauses (b) and (c) above), or (iii) shall be disclosed
to Stockholder's legal advisors in connection with advising Stockholder as to
his, her or its legal rights and obligations. Stockholder agrees and
acknowledges that remedies at law for any breach of Stockholder's obligations
under this Section 3.02 are inadequate and that in addition thereto the Company
shall be entitled to seek equitable relief, including injunction and specific
performance, in the event of any such breach.
SECTION 3.03 NO SOLICITATION. If Stockholder is not an officer or
director of Parent, Stockholder will not, directly or indirectly, and will
instruct Stockholder's agents, representatives, affiliates, employees, officers
and directors, in case of a corporate entity, not to, directly or indirectly,
solicit, initiate or encourage (including, without limitation, by way of
furnishing public or nonpublic information), or take any other action to
facilitate, any inquiries or the making of any proposal or offer (including,
without limitation, any proposal or offer to the Stockholders of Parent) that
constitutes, or may reasonably be expected to lead to, any Parent Acquisition
Transaction, or enter into or maintain or continue discussion or negotiate with
any person or entity in furtherance of such inquiries or to obtain a Parent
Acquisition Transaction, or agree to or endorse any Parent Acquisition
Transaction, or authorize or permit any of such agents, representatives,
affiliates, employees, officers and directors to take any such action.
Stockholder shall notify Company immediately after receipt by Stockholder or any
of Stockholder's agents, representatives, affiliates, employees, officers and
directors, in the case of
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a corporate entity, of any proposal for, or inquiry respecting, any Parent
Acquisition Transaction or any request for nonpublic information in connection
with such a proposal or inquiry, or for access to the properties, books or
records of Parent by any person or entity that informs or has informed Parent or
Stockholder that it is considering making or has made such a proposal or
inquiry. Such notice to Company shall indicate in reasonable detail the identity
of the person making the proposal or inquiry and the terms and conditions of
such proposal or inquiry. Stockholder immediately shall cease and cause to be
terminated all existing discussions or negotiations with any parties conducted
heretofore with respect to a Parent Acquisition Transaction.
SECTION 3.04 WAIVER OF APPRAISAL RIGHTS. Stockholder hereby irrevocably
and unconditionally waives, and agrees to cause to be waived and to prevent the
exercise of, any rights of appraisal, any dissenters' rights and any similar
rights that Stockholder or any other person may have by virtue of the ownership
of any Shares with respect to the Merger and the other transactions contemplated
by the Merger Agreement.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01 ENTIRE AGREEMENT; AMENDMENTS. This Agreement, the Merger
Agreement and the other agreements referred to herein and therein constitute the
entire agreement of the parties and supersede all prior agreements and
undertakings, both written and oral, between the parties 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 4.02 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. All
representations and warranties made by Stockholder in this Agreement shall
survive any termination of the Merger Agreement and this Agreement.
SECTION 4.03 INDEMNIFICATION. Stockholder shall hold harmless and
indemnify the Company and the Company's affiliates from and against, and shall
compensate and reimburse the Company and the Company's affiliates for, any loss,
damage, claim, liability, fee (including attorneys' fees), demand, cost or
expense (regardless of whether or not such loss, damage, claim, liability, fee,
demand, cost or expense relates to a third-party claim) that is directly or
indirectly suffered or incurred by Company or any of the Company's affiliates,
or to which the Company or any of the Company's affiliates otherwise becomes
subject, and that arises directly or indirectly from, or relates directly or
indirectly to (i) any inaccuracy in or breach of any representation or warranty
contained in this Agreement or (ii) 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 Agreement.
SECTION 4.04 ASSIGNMENT. The provisions of this Agreement shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns; PROVIDED THAT any assignment, delegation or
attempted transfer of any rights, interests or
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obligations under this Agreement by Stockholder without the prior written
consent of the Company shall be void.
SECTION 4.05 FEES AND EXPENSES. Except as otherwise provided herein or
in the Merger Agreement, 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 4.06 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed effectively given: (i)
upon personal delivery to the party to be notified, (ii) when sent by confirmed
facsimile if sent during normal business hours of the recipient; if not, then on
the next business day, (iii) five (5) days after having been sent by registered
or certified mail, return receipt requested, postage prepaid, or (iv) one (1)
day after deposit with a nationally recognized overnight courier, specifying
next day delivery, with written verification of receipt. All communications
shall be sent 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 4.06):
(a) if to the Company:
Captiva Software Corporation
00000 Xxxxxxx Xxxxxxx Xxxx.
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxxxx Xxxx
with a copy to:
Xxxxxx Godward LLP
0000 Xxxxxxxx Xxxx
Xxx Xxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxxxx
(b) If to Stockholder:
The address of record maintained by ActionPoint, Inc. in its
stock records.
SECTION 4.07 HEADINGS. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
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SECTION 4.08 SEVERABILITY. If any term or other provision of this
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
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.
SECTION 4.09 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur in the event that any of the provisions of this Agreement is
not performed in accordance with its specific terms or is otherwise breached.
Stockholder agrees that, in the event of any breach or threatened breach by
Stockholder of any covenant or obligation contained in this Agreement, the
Company 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 neither the Company nor any other party
shall 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 4.09, and Stockholder irrevocably waives any right he, she or it may
have to require the obtaining, furnishing or posting of any such bond or similar
instrument.
SECTION 4.10 GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California applicable to
contracts executed in and to be performed in that state without regard to any
conflicts of laws. In any dispute arising out of or relating to this Agreement
or any of the transactions contemplated by this Agreement: (a) each of the
parties irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of either the state courts located in Santa Xxxxx County,
California or the United States District Court for the Northern District of
California, (b) each of the parties irrevocably consents to service of process
by first class certified mail, return receipt requested, postage prepaid and (c)
each of the parties irrevocably waives the right to a trial by jury.
SECTION 4.11 NO WAIVER. No failure or delay by any party in 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
Company shall not be deemed to have waived any claim available to it arising out
of this Agreement, or any right, power or privilege hereunder, unless the waiver
is expressly set forth in writing duly executed and delivered on behalf of the
Company. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 4.12 COUNTERPARTS. This Agreement may be executed in two or 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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IN WITNESS WHEREOF, each of Company and Stockholder has
executed or has caused this Agreement to be executed by their respective duly
authorized officers as of the date first written above.
COMPANY
By:
---------------------------------------
Name:
Title:
STOCKHOLDER
---------------------------------------
Name:
Title:
EXHIBIT A
SHARES OWNED
Number of Shares
of Company
Common Stock
Number of Shares Issuable upon
of Parent Exercise of
Common Stock Options, Warrants
Name of Owned Beneficially and Other Rights to
Stockholder and of Record Acquire Such Stock
------------ ----------------------- --------------------
Xxxx Xxxxxxxx 11,489 132,598
Xxxxxxx Xxxxxx 0 0
Xxxx Xxxxxxx 14,898 197,057
Xxxxxxx Xxxxxxx 93,579 218,125
Xxxxx Xxxxxx 57,575 275,876
Xxxxxx xxx Xxxxxxxx 181,449 125,000
Xxxx Xxxxx 12,971 33,150
Xxxxx Xxxxxx 2,100 15,000
Xxxx Xxxxxx 9,883 88,114
Xxx Xxxxxxxx 56,000 17,500
Xxx Xxxxxxx 0 0
EXHIBIT B
IRREVOCABLE PROXY
The undersigned Stockholder of ActionPoint, Inc., a Delaware corporation
("PARENT"), hereby irrevocably (to the fullest extent permitted by law) appoints
the President and Chief Financial Officer of the Captiva Software Corporation, a
California corporation (the "COMPANY"), and each of them, as the sole and
exclusive lawful attorneys-in-fact and proxies of the undersigned, with full
power of substitution and resubstitution, to vote and exercise all voting and
related rights (to the full extent that the undersigned is entitled to do so)
with respect to all of the shares of capital stock of the Company that now are
or hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Parent issued or issuable in respect thereof on or after
the date hereof (collectively, the "SHARES") in accordance with the terms of
this Proxy. The Shares beneficially owned by the undersigned as of the date of
this Proxy are listed on the final page of this Proxy. Upon the undersigned's
execution of this Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to grant
any subsequent proxies with respect to the Shares until after the Expiration
Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain
Voting
Agreement of even date herewith between the Company and the undersigned (the
"
VOTING AGREEMENT"), and is granted in consideration of the Company entering
into the Agreement and Plan of Merger and Reorganization (the "MERGER
AGREEMENT"), dated as of March 4, 2002, among Parent, Condor Merger Corp. a
California corporation and wholly owned subsidiary of Parent ("MERGER SUB"), and
the Company. The Merger Agreement provides for the merger of Merger Sub with and
into the Company (the "MERGER"). As used herein, the term "EXPIRATION DATE"
shall mean the earlier to occur of (i) such date and time as the Merger
Agreement shall have been validly terminated pursuant to Article VIII thereof or
(ii) such date and time as the Merger shall become effective in accordance with
the terms and provisions of the Merger Agreement.
The attorneys-in-fact and proxies named above, and each of them, are
hereby authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's true and lawful attorneys-in-fact
and proxies to vote the Shares, and to exercise all voting, consent and similar
rights of the undersigned with respect to the Shares (including, without
limitation, the power to execute and deliver in the undersigned's name any
consent, certificate or other document that may be required by law) at every
annual, special or adjourned meeting of Stockholders of Parent and in every
written consent in lieu of such meeting (i) in favor of adoption of the Merger
Agreement and the approval of the Merger, and in favor of each of the other
actions contemplated by the Merger Agreement, (ii) against any Parent
Acquisition Transaction (as defined in the Merger Agreement) or any other matter
that could reasonably be expected to delay or not to facilitate approval of the
Merger, (iii) against any action or agreement that could reasonably be expected
to result in a breach of any covenant, representation or warranty or any other
obligation or agreement of Parent under the Merger Agreement or which could
reasonably be expected to result in any of the conditions to Parent's
obligations under the Merger Agreement not being fulfilled, and (iv) in favor of
any other matter relating to the consummation of the transactions contemplated
by the Merger Agreement.
The attorneys-in-fact and proxies named above may not exercise this
Proxy on any other matter except as provided above. The undersigned may vote the
Shares on all other matters. Any obligation of the undersigned hereunder shall
be binding upon the successors and assigns of the undersigned.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: March 4, 2002
Signature of Stockholder:
-------------------
Print Name of Stockholder:
-------------------
Shares beneficially owned:
_________ shares of Parent Common Stock
_________ shares of Parent Common Stock
issuable upon exercise of outstanding
options or warrants
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