Exhibit 2
FORM OF IRREVOCABLE PROXY AND VOTING AGREEMENT
FORM OF COMPANY
IRREVOCABLE PROXY
AND
VOTING AGREEMENT
THIS IRREVOCABLE PROXY AND VOTING AGREEMENT (this "AGREEMENT"), dated
as of June 1, 2003, is entered into by and between PeopleSoft, Inc., a Delaware
corporation ("PARENT"), and Jersey Acquisition Corporation, a Delaware
corporation and wholly-owned subsidiary of Parent ("ACQUISITION"), on the one
hand, and _________________ ("STOCKHOLDER") on the other hand, and, with respect
to Section 7(j) only, X.X. Xxxxxxx & Company, a Delaware corporation (the
"COMPANY").
RECITALS
WHEREAS, concurrently herewith, Parent, Acquisition, and the Company
have entered into an Agreement and Plan of Merger, of even date herewith (as
such agreement may hereafter be amended from time to time in conformity with the
provisions thereof, the "MERGER AGREEMENT"), pursuant to which Acquisition will
merge with and into the Company and the Company shall be the surviving
corporation and become a wholly-owned subsidiary of Parent (the "MERGER");
WHEREAS, Stockholder is the beneficial owner (as defined below) of
____________ (_________) shares of common stock, $0.001 par value per share, of
the Company (such shares, together with all other shares of capital stock or
other voting securities of the Company with respect to which the Stockholder has
beneficial ownership as of the date of this Agreement, and any shares of capital
stock or other voting securities of the Company, beneficial ownership of which
is directly or indirectly acquired after the date hereof, including, without
limitation, shares received pursuant to any stock splits, stock dividends or
distributions, shares acquired by purchase or upon the exercise, conversion or
exchange of any option, warrant or convertible security or otherwise, and shares
or any voting securities of the Company received pursuant to any change in the
capital stock of the Company by reason of any recapitalization, merger,
reorganization, consolidation, combination, exchange of shares or the like, are
referred to herein as the "STOCKHOLDER SHARES"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have requested that Stockholder agree, and
Stockholder has agreed, to enter into this Agreement.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, the parties hereto hereby agree as
follows:
1. Definitions. For the purposes of this Agreement, terms not
defined herein but used herein and defined in the Merger Agreement shall have
the meanings set forth in the Merger Agreement, unless the context clearly
indicates otherwise.
2. Voting Agreement. Stockholder hereby agrees with Parent and
Acquisition that, at any meeting of the Company's stockholders, however called,
Stockholder shall appear at each such meeting, in person or by proxy, or
otherwise cause all Stockholder Shares then outstanding to be counted as present
thereat for purposes of establishing a quorum, and Stockholder shall vote, or
cause to be voted (or in connection with any written consent of the Company's
stockholders, act, or cause to be acted, by written consent) with respect to all
Stockholder Shares that Stockholder is entitled to vote or as to which
Stockholder has the right to direct the voting, as of the relevant record date,
(i) in favor of approval of the Merger Agreement and the transactions
contemplated thereby; (ii) against any proposal that is intended to, or is
reasonably likely to result in any of the conditions of the Parent's or
Acquisition's obligations under the Merger Agreement not being fulfilled; and
(iii) against (A) any Third Party Acquisition Proposal (as defined in the Merger
Agreement), or (B) the election of a group of individuals to replace a majority
or more of the individuals presently on the Board of Directors of the Company;
provided that if one or more individuals presently on the Board of Directors
withdraws his or her nomination for reelection at any meeting of stockholders
for the election of directors, Stockholder may vote for a replacement director
nominated by the Company's Board of Directors for such individual(s).
3. Irrevocable Proxy.
(a) Stockholder hereby constitutes and appoints
Acquisition, which shall act by and through Xxxxx Xxxxxx and Xxxx Xxxxxx (each,
a "Proxy Holder"), or either of them, with full power of substitution, its true
and lawful proxy and attorney-in-fact to vote at any meeting (and any
adjournment or postponement thereof) of the Company's stockholders called for
purposes of considering whether to approve the Merger Agreement and transactions
contemplated thereby, any Third Party Acquisition Proposal or any other
transaction described in Section 2 hereof, or to execute a written consent of
stockholders in lieu of any such meeting (if so permitted), all Stockholder
Shares held by Stockholder of record as of the relevant record date in favor of
the approval of the Merger Agreement and transactions contemplated thereby and
against any Third Party Acquisition Proposal or any other action described in
Section 2(iii)(B) hereof.
(b) The proxy and power of attorney granted herein shall
be irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke all prior proxies granted by Stockholder which conflicts with the proxy
granted herein. Stockholder shall not grant any proxy to any person which
conflicts with the proxy granted herein, and any attempt to do so shall be void.
The power of attorney granted herein is a durable power of attorney and shall
survive the death or incapacity of Stockholder.
(c) If Stockholder fails for any reason to vote his, her
or its Stockholder Shares as required by Section 2 hereof, then the Proxy Holder
shall have the right to vote the Stockholder Shares at any meeting of the
Company's stockholders and in any action by written consent of the Company's
stockholders in accordance with this Section 3. The vote of a Proxy Holder shall
control in any conflict between a vote of such Stockholder Shares by a Proxy
Holder and a vote of such Stockholder Shares by Stockholder with respect to the
matters set forth in Section 3(a) hereof.
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4. Director and Officer Matters Excluded. Parent and Acquisition
acknowledge and agree that no provision of this Agreement shall limit or
otherwise restrict Stockholder with respect to any act or omission that
Stockholder may undertake or authorize in Stockholder's capacity as a director
or officer of the Company, including, without limitation, any vote that
Stockholder may make as a director or officer of the Company with respect to any
matter presented to the Company Board.
5. Other Covenants, Representations and Warranties. Stockholder
hereby represents and warrants to, and covenants with, Parent and Acquisition as
follows:
(a) Title to Stockholder Shares. Stockholder is the
beneficial owner (as defined in Rule 13(d)(3) promulgated under the Exchange
Act, "BENEFICIAL OWNER") of all the Stockholder Shares. Except as set forth in
Annex 1, attached hereto, Stockholder has sole voting power and the sole power
of disposition with respect to all of the Stockholder Shares outstanding on the
date hereof, and will have sole voting power and sole power of disposition with
respect to all of the Stockholder Shares acquired by such Stockholder after the
date hereof upon the exercise, conversion or exchange of any option, warrant or
convertible security owned or held by Stockholder as of the date hereof, with no
limitations, qualifications or restrictions on such rights. Stockholder is the
sole record holder (as reflected in the records maintained by the Company's
transfer agent) of the Stockholder Shares outstanding on the date hereof.
(b) Power; Binding Agreement. Stockholder has the legal
capacity, power and authority to enter into and perform all of Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by Stockholder will not violate any agreement or court order to
which Stockholder is a party or is subject, including, without limitation, any
voting agreement or voting trust. This Agreement has been duly and validly
executed and delivered by Stockholder and constitutes a valid and binding
agreement of Stockholder, enforceable against Stockholder in accordance with its
terms.
(c) Restriction on Transfer, Proxies and
Non-Interference; Stop Transfer. Except as expressly contemplated by this
Agreement, during the term of this Agreement, Stockholder shall not, directly or
indirectly: (i) offer for sale, sell, transfer, tender, pledge, encumber, assign
or otherwise dispose of, or enter into any contract, option or other arrangement
or understanding with respect to, or consent to the offer for sale, sale,
transfer, tender, pledge, encumbrance, assignment or other disposition of, any
or all of the Stockholder Shares or any interest therein; (ii) grant any proxies
or powers of attorney with respect to any Stockholder Shares which conflicts
with Section 3(a) hereof and the proxy granted herein or deposit any Stockholder
Shares into a voting trust or enter into a voting agreement with respect to any
Stockholder Shares; or (iii) take any action that would make any representation
or warranty of Stockholder contained herein untrue or incorrect or have the
effect of preventing or disabling Stockholder from performing any of
Stockholder's obligations under this Agreement. Stockholder further agrees with
and covenants to Parent that Stockholder shall not request that the Company
register the transfer of any certificate or uncertificated interest representing
any of the Stockholder Shares, unless such transfer is made in compliance with
this Agreement. Stockholder agrees that, in order to ensure compliance with the
restrictions referred to herein, the Company may issue appropriate "stop
transfer" instructions to its transfer agent.
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(d) No Consents. To his, her or its knowledge, the
execution and delivery of this Agreement by Stockholder does not, and the
performance by Stockholder of his, her or its obligations hereunder will not,
require Stockholder to obtain any consent, approval, authorization or permit of,
or to make any filing with or notification to, any Governmental Entity.
(e) Notification of Parent. Stockholder hereby agrees,
while this Agreement is in effect, to notify Parent and Acquisition promptly of
the number of any additional shares of capital stock and the number and type of
any other voting securities of the Company acquired by such Stockholder, if any,
after the date hereof.
(f) Reliance by Parent and Acquisition. Stockholder
understands and acknowledges that Parent and Acquisition are entering into the
Merger Agreement in reliance upon Stockholder's execution and delivery of this
Agreement.
(g) Sophistication. Stockholder acknowledges being an
informed and sophisticated investor and, together with Stockholder's advisors,
has undertaken such investigation as they have deemed necessary, including the
review of the Merger Agreement and this Agreement, to enable the Stockholder to
make an informed and intelligent decision with respect to the Merger Agreement
and this Agreement and the transactions contemplated thereby and hereby.
(h) Permitted Transfers. Notwithstanding Section 5(c),
Stockholder shall have the right to (A) transfer Stockholder Shares to (1) any
Family Member; (2) the trustee or trustees of a trust for the benefit of
Stockholder and/or one or more Family Members; (3) one or more charitable
foundations or charitable organizations or any trustee or trustees of a trust
for the benefit thereof; (4) a partnership of which Stockholder and/or Family
Members owns a majority of the partnership interests; (5) a limited liability
company of which Stockholder and/or any Family Members owns a majority of the
membership interests; (6) the executor, administrator or personal representative
of the estate of Stockholder; (7) any guardian, trustee or conservator appointed
with respect to the assets of Stockholder; or (8) any third party who agrees to
be bound by this Agreement; provided that in the case of any such transfer, the
transferee shall, as a condition to such transfer, execute an agreement to be
bound by the terms and conditions of this Agreement, except that a transferee
who receives Stockholder Shares pursuant to subsection (h)(3) hereof may sell
such shares through a broker or dealer on the Nasdaq Stock Market without regard
to the foregoing proviso insofar as it would require such transferee to obtain
an agreement from its transferee; and (B) sell up to 5% of the Stockholder
Shares owned as of the date hereof on the Nasdaq Stock Market. "FAMILY MEMBER"
means the Stockholder's spouse, father, mother, issue (if living with
Stockholder), brother or sister.
6. Termination. The voting agreement and irrevocable proxy
granted pursuant to Sections 2 and 3 hereof shall terminate immediately upon the
earlier to occur of (a) the termination of the Merger Agreement in accordance
with its terms, and (b) the Effective Time.
7. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the
entire agreement between the parties with respect to the subject matter hereof
and supersedes all other prior agreements and understandings, both written and
oral, among the parties with respect to the subject matter hereof.
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(b) Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
party, and any attempted assignment in violation hereof shall be void; provided,
however, that Parent may, in its sole discretion, assign its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Parent.
(c) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(d) Notices. All notices and other communications
pursuant to this Agreement shall be in writing and shall be deemed given if
delivered personally, sent by facsimile, sent by nationally-recognized overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the addresses set forth below or to such
other address as the party to whom notice is to be given may have furnished to
the other parties hereto in writing in accordance herewith. Any such notice or
communication shall be deemed to have been delivered and received (A) in the
case of personal delivery, on the date of such delivery, (B) in the case of
facsimile, on the date sent if confirmation of receipt is received and such
notice is also promptly mailed by registered or certified mail (return receipt
requested), (C) in the case of a nationally-recognized overnight courier in
circumstances under which such courier guarantees next business day delivery, on
the next business day after the date when sent, and (D) in the case of mailing,
on the third business day following that on which the piece of mail containing
such communication is posted:
if to Parent or Acquisition: PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: General Counsel
and
PeopleSoft, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Chief Financial Officer
with a copy to: Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xxx Xxxxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxx
if to Stockholder, to: such address for Stockholder as set forth on the
signature page hereto
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(e) Severability. Whenever possible, each provision of
this Agreement will be interpreted in such manner as to be effective and valid
under applicable law but if any provision of this Agreement is held to be
invalid, illegal or unenforceable in any respect under any applicable law or
rule in any jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(f) No Waiver. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of its right to exercise any such or other right, power
or remedy or to demand such compliance.
(g) Governing Law; Venue; Specific Performance; Waiver of
Jury Trial. THIS AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL RESPECTS
SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH THE LAWS
OF THE STATE OF DELAWARE WITHOUT REGARD TO THE CONFLICT OF LAW PRINCIPLES
THEREOF. THE PARTIES HEREBY IRREVOCABLY SUBMIT TO THE JURISDICTION OF THE COURTS
OF THE STATE OF DELAWARE AND THE FEDERAL COURTS OF THE UNITED STATES OF AMERICA
LOCATED IN THE STATE OF DELAWARE SOLELY IN RESPECT OF THE INTERPRETATION AND
ENFORCEMENT OF THE PROVISIONS OF THIS AGREEMENT AND OF THE DOCUMENTS REFERRED TO
IN THIS AGREEMENT, AND IN RESPECT OF THE TRANSACTIONS CONTEMPLATED HEREBY, AND
HEREBY WAIVE, AND AGREE NOT TO ASSERT, AS A DEFENSE IN ANY ACTION, SUIT OR
PROCEEDING FOR THE INTERPRETATION OR ENFORCEMENT HEREOF OR OF ANY SUCH DOCUMENT,
THAT IT IS NOT SUBJECT THERETO OR THAT SUCH ACTION, SUIT OR PROCEEDING MAY NOT
BE BROUGHT OR IS NOT MAINTAINABLE IN SAID COURTS OR THAT THE VENUE THEREOF MAY
NOT BE APPROPRIATE OR THAT THIS AGREEMENT OR ANY SUCH DOCUMENT MAY NOT BE
ENFORCED IN OR BY SUCH COURTS, AND THE PARTIES HERETO IRREVOCABLY AGREE THAT ALL
CLAIMS WITH RESPECT TO SUCH ACTION OR PROCEEDING SHALL BE HEARD AND DETERMINED
IN SUCH A DELAWARE STATE OR FEDERAL COURT. THE PARTIES HEREBY CONSENT TO AND
GRANT ANY SUCH COURT JURISDICTION OVER THE PERSON OF SUCH PARTIES AND OVER THE
SUBJECT MATTER OF SUCH DISPUTE AND AGREE THAT MAILING OF PROCESS OR OTHER PAPERS
IN CONNECTION WITH ANY SUCH ACTION OR PROCEEDING IN THE MANNER PROVIDED IN
SECTION 7(d) HEREOF OR IN SUCH OTHER MANNER AS MAY BE PERMITTED BY APPLICABLE
LAW, SHALL BE VALID AND SUFFICIENT SERVICE THEREOF.
THE PARTIES AGREE THAT IRREPARABLE DAMAGE WOULD OCCUR AND THAT
THE PARTIES WOULD NOT HAVE ANY ADEQUATE REMEDY AT LAW IN THE EVENT THAT ANY OF
THE PROVISIONS OF THIS AGREEMENT WERE NOT PERFORMED IN ACCORDANCE WITH THEIR
SPECIFIC TERMS OR WERE OTHERWISE BREACHED. IT IS ACCORDINGLY AGREED THAT THE
PARTIES SHALL BE ENTITLED TO SEEK AN INJUNCTION OR INJUNCTIONS TO PREVENT
BREACHES OF THIS AGREEMENT AND TO ENFORCE SPECIFICALLY THE TERMS AND PROVISIONS
OF THIS AGREEMENT IN ANY COURT OF THE STATE OF DELAWARE AND THE FEDERAL COURTS
OF THE UNITED STATES OF AMERICA LOCATED IN THE STATE OF DELAWARE, THIS BEING IN
ADDITION TO ANY OTHER REMEDY TO WHICH THEY ARE ENTITLED AT LAW OR IN EQUITY.
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EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY WHICH
MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT
ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY
WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT
OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND
ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE
EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY
UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH
PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED
TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND
CERTIFICATIONS IN THIS SECTION 7(g).
(h) Counterparts. This Agreement may be executed by
facsimile and in one or more counterparts, each of which shall be deemed to be
an original but all of which shall constitute one and the same agreement.
(i) Further Assurances. At the request of any party to
another party or parties to this Agreement, such other party or parties shall
execute and deliver such instruments or documents to evidence or further
effectuate (but not to enlarge) the respective rights and obligations of the
parties and to evidence and effectuate any termination of this Agreement.
(j) Company Stop Transfer Agreement. The Company hereby
acknowledges the restrictions on transfer of the Stockholder Shares contained in
Section 5(c) hereof. The Company agrees not to register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any
Stockholder Shares, unless such transfer is made pursuant to and in compliance
with this Agreement. The Company further agrees to instruct its transfer agent
(the "TRANSFER AGENT") not to transfer any certificate or uncertificated
interest representing any Stockholder Shares, until (i) the Transfer Agent has
received Parent's consent to such a transfer, or (ii) this Agreement has been
terminated pursuant to Section 6 hereof.
(Remainder of page intentionally left blank)
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IN WITNESS WHEREOF, Parent, Acquisition and Stockholder have caused
this Agreement to be duly executed as of the day and year first above written.
PEOPLESOFT, INC.
By: _______________________
Name:
Title:
JERSEY ACQUISITION CORPORATION
By: _______________________
Name:
Title:
STOCKHOLDER:
___________________________
Name: _____________________
Title _____________________
Address: __________________
___________________________
ACKNOWLEDGED AND AGREED TO
(with respect to Section 7(j)):
X.X. XXXXXXX & COMPANY
By: _______________________
Name:
Title:
