EXHIBIT 2
COMPANY VOTING AGREEMENT
VOTING AGREEMENT, dated as of January 29, 2001 (this "Agreement"), between
Ariba, Inc., a Delaware corporation ("Parent"), and ("Stockholder") of
Agile Software Corporation, a Delaware corporation (the "Company").
WITNESSETH :
WHEREAS, Parent, Silver Merger Corporation, a Delaware corporation and a
wholly owned subsidiary of Parent ("Merger Sub") and the Company propose to
enter into, simultaneously herewith, an Agreement and Plan of Merger and
Reorganization (the "Merger Agreement") pursuant to which the Merger Sub will
merge with and into the Company (the "Merger");
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, par value $0.001 per share, of the Company (the "Company Common Stock"),
as set forth on the signature page hereto (all such Company Common Stock and
any shares of Company 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")
(capitalized terms not otherwise defined in this Agreement shall have the same
meaning as in the Merger Agreement); and
WHEREAS, as a condition of and inducement to Parent's execution of the
Merger Agreement, Stockholder has agreed to enter into this Agreement;
NOW, THEREFORE, in consideration of the foregoing and the respective
representations, warranties, covenants and agreements set forth in this
Agreement and in the Merger Agreement, the parties hereto agree as follows:
ARTICLE I
Transfer and Voting of Shares
SECTION 1.01 Transfer of Shares. Stockholder shall not, directly or
indirectly, (a) sell, pledge, encumber, transfer or otherwise dispose of any or
all of Stockholder's Shares or any interest in such Shares, except pursuant to
the Merger Agreement, (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 hereunder), 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 (each of the above, a "Transfer").
SECTION 1.02 Vote in Favor of 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 the Company and without limiting any
action that the Stockholder might take as a director of the Company or a member
of any committee of the Board of Directors of the Company, agrees to vote (or
cause to be voted) all of the Shares at any meeting of the stockholders of the
Company or any adjournment thereof, and in any action by written consent of the
stockholders of the Company, (i) in favor of the adoption of the Merger
Agreement by the Company and approval of the Merger, and in favor of the other
transactions contemplated by the Merger Agreement, (ii) against any merger,
consolidation, sale of assets, recapitalization or other business combination
involving the Company (other than the Merger) or any other action or agreement
that would result in a breach
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of any covenant, representation or warranty or any other obligation or
agreement of the Company under the Merger Agreement or which would result in
any of the conditions to the Company's obligations under the Merger Agreement
not being fulfilled, and (iii) in favor of any other matter relating to
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 Parent a proxy with respect to
the Shares in the form attached hereto as Exhibit A (the "Proxy"), which shall
be irrevocable to the fullest extent permissible by law.
SECTION 1.04 Termination. The obligations of Stockholder pursuant to this
Article I shall terminate upon the earlier of (i) the Effective Time and (ii)
the date of the termination of the Merger Agreement pursuant to Section 8.01
thereof.
ARTICLE II
Representations and Warranties of Stockholder
Stockholder hereby represents and warrants to Parent as follows:
SECTION 2.01 Authorization; Binding Agreement. Stockholder has all legal
right, power, authority and capacity to execute and deliver this Agreement and
to consummate the transactions contemplated hereby. This Agreement has been
duly and validly authorized, executed and delivered by or on behalf of
Stockholder and constitutes a legal, valid and binding obligation of
Stockholder, enforceable against Stockholder in accordance with its terms,
subject to (i) the 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 Parent by Stockholder does not, and the performance of this
Agreement and the grant of the Proxy to Parent by Stockholder will not, (i)
conflict with or violate any law, rule, regulation, order, judgment or
decree applicable to Stockholder or by which Stockholder or any of
Stockholder's properties is bound or affected, (ii) if Stockholder is not a
natural person, 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 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 Parent by Stockholder does not, and the performance of this
Agreement and the grant of the Proxy to Parent 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. Stockholder does not have
any understanding in effect with respect to the voting or transfer of any
Shares. Stockholder is not required to
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make any filing with or notify any governmental or regulatory authority in
connection with this Agreement, the Merger Agreement or the transaction
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").
SECTION 2.03 Title to Shares. Stockholder is the record or beneficial owner
of the Shares free and clear of all encumbrances, proxies or voting
restrictions other than pursuant to this Agreement. The shares of Company
Common Stock, including options, warrants or other rights to acquire such
stock, set forth on the signature page hereto, are all the securities of the
Company owned, directly or indirectly, of record or beneficially by Stockholder
on the date of this Agreement.
SECTION 2.04 Accuracy of Representations. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times until termination of
this Agreement and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
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, waivers and other instruments,
and shall (at Stockholder's sole expense) take such further actions, as Parent
may reasonably request for the purpose of consummating the Merger.
SECTION 3.02 Legending of Shares. If so requested by Parent, Stockholder
agrees that the Shares shall bear a legend stating that they are subject to
this Agreement and to the Proxy. Subject to the terms of Section 1.01 hereof,
Stockholder agrees that Stockholder shall not Transfer any of the Shares
without first having the aforementioned legend affixed to the certificates
representing such Shares.
ARTICLE IV
General Provisions
SECTION 4.01 Entire Agreement. This Agreement, the Merger Agreement and the
other agreements referred to herein and therein constitute the 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 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 or this Agreement.
SECTION 4.03 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 any of rights, interests or obligations under this Agreement
by Stockholder without the prior written consent of Parent shall be void.
SECTION 4.04 Fees and Expenses. Except as otherwise provided 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.
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SECTION 4.05 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
electronic mail or 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 4.05):
(a) if to Parent:
Ariba, Inc.
0000 Xxxxxxxxxx Xx.
Xxxxxxxx Xxxx, XX 00000
Attention: General Counsel
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx and Xxxxxxxxxxx X. Xxxxxx
Facsimile No.: (000) 000-0000
(b) If to the Stockholder to:
______________________________________
______________________________________
______________________________________
Facsimile No.:
with a copy to:
Xxxx Xxxx Xxxx & Freidenrich LLP
000 Xxxxxxxx Xxxxxx
Xxxx Xxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Facsimile No.: (000) 000-0000
SECTION 4.06 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.
SECTION 4.07 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 4.08 Specific Performance. The parties agree that irreparable damage
would occur if any of the provisions of this Agreement is not performed in
accordance with its specific terms or is otherwise breached. Stockholder agrees
that, following any breach or threatened breach by Stockholder of any covenant
or obligation contained in this Agreement, Parent 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 Parent nor any other party shall be required to obtain,
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furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 4.08, and
Stockholder irrevocably waives any right he may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
SECTION 4.09 Governing Law. This Agreement 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. Each party hereby
irrevocably submits to the exclusive jurisdiction of the Court of Chancery in
the State of Delaware in any action, suit or proceeding arising in connection
with this Agreement, and agrees that any such action, suit or proceeding shall
be brought only in such court (and waives any objection based on forum non
conveniens or any other objection to venue therein); provided, however, that
such consent to jurisdiction is solely for the purpose referred to in this
Section 4.09 and shall not be deemed to be a general submission to the
jurisdiction of such court or in the State of Delaware other than for such
purposes.
SECTION 4.10 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. Parent
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
Parent. The rights and remedies herein provided shall be cumulative and not
exclusive of any rights or remedies provided by law.
SECTION 4.11 Counterparts. This Agreement may be executed in one 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.
IN WITNESS WHEREOF, each of Parent and Stockholder has executed or has
caused this Agreement to be executed by their duly authorized officer as of the
date first written above.
ARIBA, INC.
By: ____________________________________
Name:
Title:
STOCKHOLDER
________________________________________
Print Name of Stockholder: _____________
Shares beneficially owned:
shares of Agile Software
Corporation Common Stock
shares of Agile Software
Corporation Common Stock issuable
upon exercise of outstanding
options or warrants
Signature Page to Company Voting Agreement
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder ("Stockholder") of Agile Software Corporation, a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints the directors on the Board of Directors of Ariba,
Inc., a Delaware corporation ("Parent"), and each of them, as the sole and
exclusive attorneys 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 the Company 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 stockholder of
the Company 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 by and among Parent and Stockholder (the
"Voting Agreement"), and is granted in consideration of Parent entering into
that certain Agreement and Plan of Merger and Reorganization (the "Merger
Agreement"), among Parent, Silver Merger Corporation, a Delaware corporation
and a 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 in accordance with its terms (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 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 attorney and proxy 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 written consents) at every annual, special or
adjourned meeting of stockholders of the Company and in every written consent
in lieu of such meeting in favor of approval of the Merger, the execution and
delivery by the Company of the Merger Agreement and the adoption and approval
of the terms thereof and in favor of each of the other actions contemplated by
the Merger Agreement and any action required in furtherance hereof and thereof,
and against any Competing Transaction (as defined in the Merger Agreement) or
any other matter that could be reasonably be expected to delay or not to
facilitate approval of the Merger.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. Stockholder may vote the Shares on all
other matters. Any obligation of Stockholder hereunder shall be binding upon
the successors and assigns of Stockholder.
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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: January , 2001
Signature of Stockholder:_______________
Print Name of Stockholder:______________
Shares beneficially owned:______________
shares of Agile Software
Corporation Common Stock
shares of Agile Software
Corporation Common Stock issuable
upon exercise of outstanding
options or warrants
Signature Page to Irrevocable Proxy
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