EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Voting Agreement") is entered into as of
January 4, 2002, by and among TIBCO Software Inc., a Delaware corporation
("TIBCO"), and the stockholders of Talarian Corporation, a Delaware corporation
("Talarian"), identified on the signature page hereto (each a "Stockholder" and,
collectively, the "Stockholders").
RECITALS
--------
A. TIBCO, Panther Acquisition Corp., a Delaware corporation and a wholly
owned subsidiary of TIBCO ("Merger Sub"), and Talarian have contemporaneously
with the execution of this Voting Agreement entered into an Agreement and Plan
of Merger dated as of the date hereof (the "Merger Agreement") which provides,
among other things, that Merger Sub shall be merged (the "Merger") with Talarian
pursuant to the terms and conditions thereof.
B. As an essential condition and inducement to TIBCO to enter into the
Merger Agreement and in consideration therefor, the Stockholders have agreed to
enter into this Voting Agreement.
C. As of the date hereof, each Stockholder owns of record and
beneficially the shares of common stock, par value $0.001 per share, of Talarian
("Talarian Common Stock") set forth on the signature page hereto and desires to
enter into this Voting Agreement with respect to such shares of Talarian Common
Stock.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein and in the Merger Agreement, the parties hereto
agree as follows:
ARTICLE I
1. Voting of Shares.
----------------
1.1 Voting Agreement. Each Stockholder hereby agrees to (a) appear,
----------------
or cause the holder of record on any applicable record date (the "Record
Holder") to appear, for the purpose of obtaining a quorum at any annual or
special meeting of stockholders of Talarian and at any postponement or
adjournment thereof at which matters relating to the Merger, the Merger
Agreement or any transaction contemplated thereby, or any Acquisition Proposal
or Frustrating Transaction (as defined below), are considered and (b) vote, or
cause the Record Holder to vote, in person or by proxy, all of the shares of
Talarian Common Stock owned by such Stockholder, or with respect to which such
Stockholder has or shares voting power or control, and all of the shares of
Talarian Common Stock which shall, or with respect to which voting power or
control shall, hereafter be acquired by such Stockholder (collectively, the
"Shares") (i) in favor of the Merger, the Merger Agreement and the transactions
contemplated by the Merger Agreement and (ii) against any Acquisition Proposal
or any amendment of Talarian's Second Amended and Restated Certificate of
Incorporation or Bylaws or other proposal, action or transaction involving
Talarian or any of its subsidiaries or stockholders which amendment or other
proposal, action or
-1-
transaction could reasonably be expected to prevent or materially impede or
delay the consummation of the Merger or the other transactions contemplated by
the Merger Agreement or the consummation of the transactions contemplated by
this Voting Agreement, or change in any manner the voting rights of the Talarian
Common Stock (collectively, the "Frustrating Transactions"). In the event
written consents are solicited or otherwise sought from stockholders of Talarian
with respect to approval or adoption of the Merger Agreement, with respect to
the approval of the Merger or with respect to any of the other actions
contemplated by the Merger Agreement, each Stockholder shall (unless otherwise
directed by TIBCO) execute, or cause the Record Holder to execute, with respect
to all Shares a written consent or written consents to such proposed action. In
the event written consents are solicited or otherwise sought from stockholders
of Talarian with respect to approval or adoption of any Acquisition Proposal or
Frustrating Transaction, no Stockholder shall (unless otherwise directed by
TIBCO) execute, or cause the Record Holder to execute, with respect to any
Shares any written consent or written consents to such proposed action. No
agreement to vote or provide a written consent is hereby made with respect to
any action not enumerated above.
1.2 Grant of Proxy. In furtherance of the foregoing, each Stockholder,
--------------
by this Agreement, with respect to all Shares now owned of record or that may
hereafter be acquired by such Stockholder at anytime prior to the Effective
Time, does hereby constitute and appoint TIBCO and Merger Sub, or any nominee of
TIBCO and Merger Sub, with full power of substitution, from the date hereof to
the earlier to occur of the termination of this Voting Agreement or the
Effective Time, as its true and lawful attorney and proxy (its "Proxy"), for and
in its name, place and stead, to demand that the Secretary of Talarian call a
special meeting of stockholders of Talarian for the purpose of considering any
action related to the Merger Agreement and to vote each of such Shares as its
Proxy at every annual, special or adjourned meeting of stockholders of Talarian,
including the right to sign its name (as stockholder) to any consent relating to
Talarian that the law of the State of Delaware may permit or require, in favor
of the Merger, the Merger Agreement and the transactions contemplated by the
Merger Agreement and against any Acquisition Proposal or Frustrating
Transaction. This Proxy and power of attorney is irrevocable to the fullest
extent permitted by the law of the State of Delaware and is coupled with an
interest. No proxy is hereby given with respect to any matters other than those
enumerated above.
1.3 Further Assurances. Each Stockholder shall use his, her or its
------------------
best efforts to perform such further acts and execute such further documents
and instruments as may reasonably be required to vest in TIBCO and Merger Sub
the power to carry out and give effect to the provisions of this Voting
Agreement.
1.4 No Ownership Interest. Nothing contained in this Voting Agreement
---------------------
shall be deemed to vest in TIBCO any direct or indirect ownership or incidence
of ownership of or with respect to any Shares. All rights, ownership and
economic benefits of and relating to the Shares shall remain and belong to the
Stockholders, and TIBCO shall have no authority to manage, direct, superintend,
restrict, regulate, govern, or administer any of the policies or operations of
Talarian or exercise any power or authority to direct the Stockholders in the
voting
-2-
of any of the Shares, except as otherwise provided herein, or the performance of
any Stockholder's duties or responsibilities as a stockholder of Talarian.
1.5 No Inconsistent Agreements. Each Stockholder hereby covenants and
--------------------------
agrees that, except as contemplated by this Voting Agreement and the Merger
Agreement, such Stockholder (a) has not entered, and shall not enter at any time
while this Voting Agreement remains in effect, into any voting agreement
relating to the subject matter hereof and (b) has not granted, and shall not
grant at any time while this Voting Agreement remains in effect, a proxy or
power of attorney, in either case which is inconsistent with this Voting
Agreement.
1.6 Waiver of Appraisal Rights. Each Stockholder hereby waives any rights
--------------------------
of appraisal, or rights to dissent from the Merger, that each such Stockholder
may have.
1.7 Investors Rights Agreement. If Stockholder is party to the Amended and
--------------------------
Restated Investors Rights Agreement dated as of February 3, 2000, as amended
March 10, 2000 (the "Investors Rights Agreement"), Stockholder hereby approves
of, and consents to, the termination of such agreement, conditioned upon, and
effective concurrently with, the Effective Time of the Merger. This approval and
consent shall be of no force and effect in the event that the Merger does not
close or this Agreement is terminated in accordance with its terms.
ARTICLE II
2. Restrictions on Transfer.
------------------------
(a) Each Stockholder hereby covenants and agrees that such Stockholder
will not, prior to the termination of this Voting Agreement, either directly or
indirectly, sell, assign, pledge, hypothecate, transfer, exchange, or dispose
("Transfer") of any Shares or options to purchase Talarian Common Stock
("Options") or any other securities or rights convertible into or exchangeable
for shares of Talarian Common Stock, owned either directly or indirectly by such
Stockholder or with respect to which such Stockholder has the power of
disposition, whether now or hereafter acquired, without the prior written
consent of TIBCO; provided that nothing contained herein will be deemed to
restrict (i) the exercise of Options, (ii) the entry by Stockholder into
"hedging" or similar economic transactions with respect to the Shares so long as
such "hedging" or similar economic transactions do not restrict or otherwise
inhibit Stockholder's ability to vote the Shares in accordance with the
requirements of this Voting Agreement, or (iii) the Transfer of any Shares to
any person who agrees in writing to be bound by the terms and conditions of this
Voting Agreement.
(b) Each Stockholder hereby agrees and consents to the entry of stop
transfer instructions by Talarian against the transfer of any Shares consistent
with the terms of Section 2.1(a) hereof.
-3-
ARTICLE III
3. Representations and Warranties of Stockholder. Each Stockholder hereby
---------------------------------------------
represents and warrants to TIBCO as follows:
3.1 Authority Relative to This Agreement. Stockholder is competent to
------------------------------------
execute and deliver this Voting Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. This Voting Agreement
has been duly and validly executed and delivered by Stockholder and, assuming
the due authorization, execution and delivery by TIBCO, constitutes a legal,
valid and binding obligation of Stockholder, enforceable against Stockholder in
accordance with its terms, except as the same may be limited by bankruptcy and
similar laws affecting the rights of creditors generally and the application of
principles of equity and equitable remedies.
3.2 No Conflict. The execution and delivery of this Voting Agreement
-----------
by Stockholder does not, and the performance of this Voting Agreement by
Stockholder shall not, 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 others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance, on any of
the Shares or Options 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 the Shares
or Options are bound or affected.
3.3 Title to the Shares. The Shares and Options held by Stockholder
-------------------
are owned free and clear of all security interests, liens, claims, pledges,
options, rights of first refusal, agreements, limitations on Stockholder's
voting rights, charges and other encumbrances of any nature that would adversely
affect the exercise or fulfillment of the rights and obligations of the parties
to this Voting Agreement (other than rights of Talarian to repurchase Shares
under certain circumstances), and Stockholder has not appointed or granted any
proxy, which appointment or grant remains effective, with respect to the Shares
(other than under this Voting Agreement).
3.4 Scope of Representations. TIBCO acknowledges that the
------------------------
representations made in this Article III are made by each Stockholder only as to
himself or itself, as the case may be.
ARTICLE IV
4. Miscellaneous.
-------------
4.1 No Solicitation. From the date hereof until the Effective Time or,
---------------
if earlier, the termination of the Merger Agreement, and subject in all respects
to Section 4.14 below and Sections 5.2 and 5.4 of the Merger Agreement (as to a
Stockholder's actions as an officer or director of Talarian), no Stockholder
shall (whether directly or indirectly through advisors, agents or other
intermediaries) (a) solicit, initiate or encourage any Acquisition
-4-
Proposal or Frustrating Transaction or (b) engage in discussions or negotiations
with, or disclose any non-public information relating to Talarian or its
subsidiaries to any person that has made an Acquisition Proposal or proposed a
Frustrating Transaction or has advised Stockholder, or to its knowledge,
Talarian or any other stockholder of Talarian, that such person is interested in
making an Acquisition Proposal or proposing a Frustrating Transaction.
4.2 Termination. This Agreement shall terminate upon the earliest to
-----------
occur of (a) the Effective Time or (b) the termination of the Merger Agreement
in accordance with its terms. Upon such termination, no party shall have any
further obligations or liabilities hereunder, provided that no such termination
--------
shall relieve any party from liability for any breach of this Voting Agreement
prior to such termination.
4.3 Enforcement of Agreement. The parties hereto agree that
------------------------
irreparable damage would occur in the event that any of the provisions of this
Voting Agreement were not performed in accordance with its specified terms or
were otherwise breached. It is accordingly agreed that the parties shall be
entitled to an injunction or injunctions to prevent breaches of this Voting
Agreement and to specific performance of the terms and provisions hereof in
addition to any other remedy to which they are entitled at law or in equity.
4.4 Successors and Affiliates. This Voting Agreement shall inure to
-------------------------
the benefit of and shall be binding upon the parties hereto and their respective
heirs, legal representatives and permitted assigns. If any Stockholder shall at
any time hereafter acquire ownership of, or voting power with respect to, any
additional Shares in any manner, whether by the exercise of any Options or any
securities or rights convertible into or exchangeable for shares of Talarian
Common Stock, by operation of law or otherwise, such Shares shall be held
subject to all of the terms and provisions of this Voting Agreement. Without
limiting the foregoing, each Stockholder specifically agrees that the
obligations of such Stockholder hereunder shall not be terminated by operation
of law, whether by death or incapacity of such Stockholder or otherwise.
4.5 Entire Agreement. This Voting Agreement constitutes the entire
----------------
agreement among TIBCO and the Stockholders with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and
oral, among TIBCO and the Stockholders with respect to the subject matter
hereof.
4.6 Captions and Counterparts. The captions in this Voting Agreement
-------------------------
are for convenience only and shall not be considered a part of or affect the
construction or interpretation of any provision of this Voting Agreement. This
Voting Agreement may be executed in several counterparts, each of which shall
constitute one and the same instrument.
4.7 Amendment. This Voting Agreement may not be amended except by an
---------
instrument in writing signed by the parties hereto.
4.8 Waivers. Except as provided in this Voting Agreement, no action
-------
taken pursuant to this Voting Agreement, including without limitation any
investigation by or on behalf of any party, shall be deemed to constitute a
waiver by the party taking such action of compliance
-5-
with any representations, warranties, covenants or agreements contained in this
Voting Agreement. The waiver by any party hereto of a breach of any provision
hereunder shall not operate or be construed as a wavier of any prior or
subsequent breach of the same or any other provision hereunder.
4.9 Severability. If any term or other provision of this Voting
------------
Agreement is invalid, illegal or incapable of being enforced by any rule of law,
or public policy, all other conditions and provisions of this Voting Agreement
shall nevertheless remain in full force and effect. 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 Voting Agreement
so as to effect the original intent of the parties as closely as possible to the
fullest extent permitted by applicable law in a mutually acceptable manner in
order that the terms of this Voting Agreement remain as originally contemplated
to the fullest extent possible.
4.10 Notices. All notices and other communications given or made
-------
pursuant hereto shall be in writing and shall be deemed to have been duly given
or made and shall be effective upon receipt, if delivered personally, upon
receipt of a transmission confirmation if sent by facsimile (with a confirming
copy sent by overnight courier) and on the next business day if sent by Federal
Express, United Parcel Service, Express Mail or other reputable overnight
courier to the parties at the following addresses (or at such other address for
a party as shall be specified by notice):
If to a Stockholder: At the address set forth opposite such
Stockholder's name on the signature page hereto
with a copy to:
Fenwick & West LLP
Xxx Xxxx Xxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Xxxxxxx X. Xxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
-6-
If to TIBCO
or Merger Sub: TIBCO Software Inc.
0000 Xxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
with a copy to:
Venture Law Group
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxx, Xx.
Xxxxxx X. Xxxxxxxxx
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
4.11 Governing Law. This Voting 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.
4.12 Interpretation. The parties have participated jointly in the
--------------
negotiation of this Voting Agreement. In the event that an ambiguity or question
of intent or interpretation arises, this Voting Agreement shall be construed as
if drafted jointly by the parties, and no presumption or burden of proof shall
arise favoring or disfavoring any party by virtue of the authorship of the
provisions of this Voting Agreement.
4.13 Definitions. Capitalized terms used and not defined herein shall
-----------
have the meaning set forth in the Merger Agreement.
4.14 Officers and Directors. No person who is or becomes (during the
----------------------
term hereof) a director or officer of Talarian makes any agreement or
understanding herein in his or her capacity as such director or officer, and
nothing herein will limit or affect, or give rise to any liability to any
Stockholder by virtue of, any actions taken by such Stockholder in his or her
capacity as an officer or director of Talarian in exercising his or her rights
or obligations under the Merger Agreement or applicable law.
[Signature page to follow]
-7-
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
------------------------------------
Title: Executive Vice President,
-----------------------------------
Marketing & Engineering
-----------------------------------
STOCKHOLDER
LAWRENCE, TYRRELL, XXXXXX
AND XXXXX II, L.P.
By: /s/ Xxxxx X. Xxxxx
--------------------------------------
Name: Xxxxx X. Xxxxx
------------------------------------
Title: General Partner
-----------------------------------
Address: 000 Xxxxxxx Xxxxxx
00xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Number of Shares of Talarian
Common Stock owned: 2,138,227
------------------
Number of Shares of Talarian
Common Stock as to which options
issued to Stockholder are
exercisable: _________________________
****VOTING AGREEMENT****
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Title: Executive Vice President,
----------------------------------
Marketing & Engineering
----------------------------------
STOCKHOLDER
NORTEL NETWORKS, INC.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Name: Xxxxx X. Xxxxxxx
-----------------------------------
Title: Lender, Corporate Dev.
----------------------------------
Address: 000 Xxxxxx Xxx
XX 510/06/A12
Xxxxxxxxx, XX 00000
Attn: Asst. Secretary
Number of Shares of Talarian
Common Stock owned: 1,571,055
-------------------
Number of Shares of Talarian
Common Stock as to which options
issued toStockholder are
exercisable: _________________________
****VOTING AGREEMENT****
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Executive Vice President,
---------------------------------
Marketing & Engineering
---------------------------------
STOCKHOLDER
STF II, L.P.
By: /s/ Xxxxx X. Gold
------------------------------------
Name: Xxxxx X. Gold
----------------------------------
Title: General Partner
---------------------------------
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Number of Shares of Talarian
Common Stock owned: 1,562,500
------------------
Number of Shares of Talarian
Common Stock as to which options
issued to Stockholder are
exercisable: _________________________
****VOTING AGREEMENT****
STOCKHOLDER
/s/ Xxxxx X. Gold
-------------------------------
Xxxxx X. Gold
Address: 0000 Xxxx Xxxx Xxxx
Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Number of Shares of Talarian
Common Stock owned: 42,500
-------------------
Number of Shares of Talarian
Common Stock as to which options
issued to Stockholder are
exercisable: 6,666
--------------------------
****VOTING AGREEMENT****
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
--------------------------------
Title: Executive Vice President,
-------------------------------
Marketing & Engineering
-------------------------------
STOCKHOLDER
THE XXXXXX FAMILY TRUST DATED
AUGUST 10, 1999
By: /s/ Xxxxx X. Xxxxxx
----------------------------------
Name: Xxxxx X. Xxxxxx
--------------------------------
Title: Trustee
-------------------------------
Address: 000 Xxxx Xxxx Xxxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Number of Shares of Talarian
Common Stock owned: 150,000
---------------------
Number of Shares of Talarian
Common Stock as to which options
issued to Stockholder are
exercisable: ____________________________
****VOTING AGREEMENT****
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
--------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
-------------------------------
Title: Executive Vice President,
------------------------------
Marketing & Engineering
------------------------------
STOCKHOLDER
/s/ Xxxxxx X. Xxxxxx
-------------------------------------
Xxxxxx X. Xxxxxx
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Number of Shares of Talarian
Common Stock owned: 470,245
---------------------
Number of Shares of Talarian
Common Stock as to which options
issued to Stockholder are
exercisable: 65,104
-----------------------------
****VOTING AGREEMENT****
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
---------------------------------
Title: Executive Vice President,
--------------------------------
Marketing & Engineering
--------------------------------
STOCKHOLDER
/s/ Xxxx X. Xxxxxx
---------------------------------------
Xxxx X. Xxxxxx
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Number of Shares of Talarian
Common Stock owned: 311,200
----------------------
Number of Shares of Talarian
Common Stock as to which options
issued to Stockholder are
exercisable: 169,270
-----------------------------
****VOTING AGREEMENT****
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
--------------------------------
Title: Executive Vice President,
-------------------------------
Marketing & Engineering
-------------------------------
STOCKHOLDER
/s/ Xxxx X. Xxxxxxxx
--------------------------------------
Xxxx X. Xxxxxxxx
Address: 29W 000 Xxxxxxxxxxx Xxxx
Xxxxx 000
Xxxxxxxxxxx, XX 00000
Number of Shares of Talarian
Common Stock owned: 241,703
---------------------
Number of Shares of Talarian
Common Stock as to which option
issued to Stockholder are
exercisable: 53,437
----------------------------
****VOTING AGREEMENT****
IN WITNESS WHEREOF, each of the parties hereto have caused this Voting
Agreement to be duly executed as of the date first written above.
TIBCO SOFTWARE INC.
By: /s/ Xxxxxx X. Xxxxxxxxxx
----------------------------------
Name: Xxxxxx X. Xxxxxxxxxx
--------------------------------
Title: Executive Vice President,
-------------------------------
Marketing & Engineering
-------------------------------
STOCKHOLDER
/s/ Xxxxxxx X. Xxxxxx
--------------------------------------
Xxxxxxx X. Xxxxxx
Address: 000 Xxxxxx Xxxxxx
Xxx Xxxxx, Xxxxxxxxxx 00000
Number of Shares of Talarian
Common Stock owned: 188,697
---------------------
Number of Shares of Talarian
Common Stock as to which options
issued to Stockholder are
exercisable: 7,430
----------------------------
****VOTING AGREEMENT****
