EXHIBIT 99.2
VOTING AGREEMENT
THIS VOTING AGREEMENT is made and entered into as of November 17, 1997 by
and between Borland International, Inc., a Delaware corporation ("Acquirer"),
and each of the undersigned individual stockholders (individually, a
"stockholder" and collectively, the "Stockholders") of Visigenic Software, Inc.,
a Delaware corporation ("Target").
RECITALS
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A. Concurrently with the execution of this Agreement, Acquirer, Target
and Vixen Acquisition Corporation, a Delaware corporation and a wholly-owned
subsidiary of Acquirer ("Sub"), have entered into an Agreement and Plan of
Merger, dated as of November 17, 1997 (the "Merger Agreement"), providing for
the merger of Sub with and into Target (the "Merger") pursuant to which Target
will become a wholly-owned subsidiary of Acquirer;
B. Each Stockholder is the beneficial holder of record of the number of
shares of the outstanding Common Stock of Target as is indicated on the final
page of this Agreement (the "Shares");
C. In connection with the Merger, Acquirer will acquire each
Stockholder's entire equity interest in Target and each Stockholder will receive
in exchange an equity interest in Acquirer; and
D. In consideration of and to induce the execution of the Merger
Agreement by Acquirer, each Stockholder is willing to agree to vote the Shares
in favor of the Merger, subject to the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and the mutual
covenants and agreements contained herein, the parties agree as follows:
1. Agreement on Transfer of Shares. Each Stockholder agrees that in the
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event of any pledge, sale, exchange or other disposition of or encumbrance of
any of the Shares at any time prior to the Expiration Date, as defined herein,
as a condition to any such transaction, any transferee or pledgee shall agree to
be bound by the terms of this Agreement in connection with such transfer or
pledge. The "Expiration Date" shall mean the earlier of (i) the date and time on
which the Merger shall become effective in accordance with the terms and
provisions of the Merger Agreement or (ii) the date on which the Merger
Agreement shall be terminated pursuant to Article VIII of the Merger Agreement.
Each Stockholder, as the holder of voting stock of Target agrees to be present,
in person or by proxy, at all meetings of stockholders of Target so that all
Shares are counted for the purposes of determining the presence of a quorum at
such meetings. This Agreement is intended to bind each Stockholder only with
respect to specific matters set forth herein, and shall not limit each
Stockholder from acting in accordance with fiduciary duties as an officer or
director of Target.
2. Agreement to Vote Shares. At any meeting of the Target stockholders
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called with respect to any vote on adoption of the Merger Agreement or approval
of the Merger, and at any adjournment thereof, and with respect to any written
consent solicited with respect thereto, each Stockholder agrees to vote the
Shares in favor of adoption of the Merger Agreement and approval of the Merger.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
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each Stockholder agrees to deliver to Acquirer a proxy in the form attached
hereto as Annex A (the "Proxy"), which shall be irrevocable to the extent
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provided therein; provided that the Proxy shall be revoked upon termination of
this Agreement in accordance with its terms. At any meeting at which each
Stockholder is present in person and at which Acquirer intends to vote the
Proxy, the Acquirer shall notify each Stockholder of its intention to vote the
Shares itself and each Stockholder shall have no obligation to vote the Shares
himself. The Acquirer agrees that the Proxy shall not limit each Stockholder's
power and authority to vote the Shares in accordance with Section 2 in the
absence of any vote by the Proxyholder.
4. Additional Purchases. For purposes of this Agreement, the term
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"Shares" shall include any shares of Target capital stock which each Stockholder
purchases or otherwise acquires after the execution of this Agreement and prior
to the Expiration Date.
5. Representations, Warranties and Covenants of each Stockholder. Each
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Stockholder hereby represents, warrants and covenants to Acquirer the following:
5.1. Ownership of Shares. Except as specifically described on Annex
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C to this Agreement and except for any repurchase option held by Target, each
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Stockholder (i) is the holder and beneficial owner of the Shares, which at the
date hereof and at all times until the Expiration Date will be free and clear of
any liens, claims, options, charges or other encumbrances, (ii) does not
beneficially own any shares of stock of Target other than the Shares and (iii)
has full power and authority to make, enter into, deliver and carry out the
terms of this Agreement and the Proxy.
5.2. Validity; No Conflict. This Agreement constitutes the legal,
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valid and binding obligation of each Stockholder. Neither the execution of this
Agreement by each Stockholder nor the consummation of the transactions
contemplated hereby will result in a breach or violation of the terms of any
agreement by which each Stockholder is bound or of any decree, judgment, order,
law or regulation now in effect of any court or other governmental body
applicable to each Stockholder.
5.3. No Voting Trusts and Agreements. Between the date of this
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Agreement and the Expiration Date, each Stockholder will not, and will not
permit any entity under each Stockholder's control to, deposit any shares of
Target capital stock held by each Stockholder or such entity in a voting trust
or subject any shares of Target capital stock held by each Stockholder or such
entity to any arrangement or agreement with respect to the voting of such shares
of capital stock, other than agreements entered into with Acquirer; provided,
however, that each Stockholder may deposit the Shares into a voting trust that
agrees to be bound by this Agreement.
5.4. [include each entity under the control of each individual
stockholder]
6. Representations, Warranties and Covenants of Acquirer. Acquirer
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represents, warrants and covenants to each Stockholder as follows:
6.1. Due Authorization. This Agreement has been authorized by all
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necessary corporate action on the part of Acquirer and has been duly executed by
a duly authorized officer of Acquirer.
6.2 Validity; No Conflict. This Agreement constitutes the legal,
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valid and binding obligation of Acquirer. Neither the execution of this
Agreement by Acquirer nor the consummation of the transactions contemplated
hereby will result in a breach or violation of the terms of any agreement by
which Acquirer is bound or of any decree, judgment, order, law or regulation now
in effect of any court or other governmental body applicable to Acquirer.
7. Consent of Spouse. If each Stockholder is married on the date of this
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Agreement, each Stockholder's spouse shall execute a Consent of Spouse in the
form of Annex B hereto, effective on the date hereof. Such consent shall not be-
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deemed to confer or convey to the spouse any rights in the Shares that do not
otherwise exist by operation of law or the agreement of the parties. If each
Stockholder should marry or remarry subsequent to the date of this Agreement,
each Stockholder shall within three (3) business days thereafter obtain his new
spouse's acknowledgment of and consent to the existence and binding effect of
all restrictions contained in this Agreement by signing an additional Consent of
Spouse in the form of Annex B hereto.
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8. Additional Documents. Each Stockholder and Acquirer hereby covenant
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and agree to execute and deliver any additional documents necessary or
desirable, in the reasonable opinion of Acquirer's legal counsel or each
Stockholder, as the case may be, to carry out the intent of this Agreement.
9. Consent and Waiver. Each Stockholder hereby gives any consent or
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waivers that are required for the consummation of the Merger under the terms of
any agreement to which each Stockholder is a party or pursuant to any other
rights each Stockholder may have.
10. Miscellaneous.
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10.1. Severability. If any term, provision, covenant or restriction
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of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
10.2. Binding Effect and Assignment. This Agreement and all of the
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provisions hereof shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and permitted assigns, but, except as
otherwise specifically provided herein, neither this Agreement nor any of the
rights, interests or obligations of the parties hereto may be assigned by any of
the parties without the prior written consent of the other.
10.3. Amendments and Modifications. This Agreement may not be
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modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
10.4. Specific Performance: Injunctive Relief. The parties hereto
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acknowledge that Acquirer will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
each Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies which may be available to Acquirer upon such violation,
Acquirer shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to it at
law or in equity.
10.5. Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and sufficient if delivered in
person, by commercial overnight courier service, by confirmed telecopy, or sent
by mail (registered or certified mail, postage prepaid, return receipt
requested) to the respective parties as follows:
If to Acquirer: Borland International, Inc.
000 Xxxxxxx Xxx
Xxxxxx Xxxxxx, XX 00000
Attention: General Counsel
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
If to each Stockholder: To the address for notice set forth
on the last page hereof.
With a copy to: Visigenic Software, Inc.
000 Xxxxxxx'x Xxxxxx Xxxxxxxxx
Xxx Xxxxx, XX 00000
Attention: President
Telecopy No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as either party may have furnished to the other in
writing in accordance herewith, except that notices of change of address shall
only be effective upon receipt.
10.6. Governing Law. This Agreement shall be governed by, construed
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and enforced in accordance with the laws of the State of Delaware without giving
effect to principles of conflicts of law.
10.7. Entire Agreement. This Agreement contains the entire
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understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
10.8. Counterparts. This Agreement may be executed in counterparts,
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each of which shall be an original, but all of which together shall constitute
one and the same agreement.
10.9. Effect of Headings. This Section headings herein are for
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convenience only and shall not affect the construction or interpretation of this
Agreement.
11. Termination. Notwithstanding anything else in this Agreement, this
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Agreement and the Proxy, and all obligations of each Stockholder under either of
them, shall automatically terminate as of the Expiration Date.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written.
BORLAND INTERNATIONAL, INC.
By: ___________________________________
_______________________________________
Name of Stockholder: __________________
Stockholder's Address for Notice:
_______________________________________
_______________________________________
_______________________________________
Shares beneficially owned:
______ shares of Common Stock
ANNEX A
IRREVOCABLE PROXY
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Each undersigned Stockholder of Visigenic Software, Inc., a Delaware
corporation ("Target") (including ___________), hereby irrevocably appoints and
constitutes the members of the Board of Directors of Borland International,
Inc., a Delaware corporation ("Acquirer"), and each of them (the
"Proxyholders"), the agents and proxies of the undersigned, with full power of
substitution and resubstitution, to the full extent of the undersigned's rights
with respect to the shares of capital stock of Target beneficially owned by the
undersigned, which shares are listed below (the "Shares"), and any and all other
shares or securities issued or issuable in respect thereof on or after the date
hereof and prior to the date this proxy terminates, to vote the Shares as
follows:
The agents and proxies named above are empowered at any time prior to
termination of this proxy to exercise all voting and other rights
(including, without limitation, the power to execute and deliver written
consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of Target Stockholders, and in every written
consent in lieu of such a meeting, or otherwise, in favor of approval of
the Merger (as defined in the Voting Agreement dated November 17, 1997
between each Stockholder and Acquirer (the "Voting Agreement") and that
certain Agreement and Plan of Merger dated as of November 17, 1997 by and
among Acquirer, Target and Vixen Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Acquirer ("Sub") (the "Merger
Agreement").
The Proxyholders may not exercise this proxy on any other matter. The
undersigned Stockholder may vote the Shares on all such other matters.
The proxy granted by each Stockholder to the Proxyholders hereby is granted
as of the date of this Agreement in order to secure the obligations of each
Stockholders set forth in Section 2 of the Voting Agreement, and is irrevocable
and coupled with an interest in such obligations and in the interests in Target
to be purchased and sold pursuant to the Reorganization Agreement. This proxy
will terminate upon the termination of the Voting Agreement in accordance with
its terms.
Upon the execution hereof, all prior proxies given by the undersigned with
respect to the Shares and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof are hereby revoked and
no subsequent proxies will be given until such time as this proxy shall be
terminated in accordance with its terms.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned. The undersigned Stockholder
authorizes the Proxyholders to file this proxy and any substitution or
revocation of substitution with the Secretary of Target and with any Inspector
of Elections at any meeting of each Stockholders of Target.
This proxy is irrevocable and shall survive the insolvency, incapacity,
death or liquidation of the undersigned.
Dated: November 17, 1997
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Signature of Stockholder
________________________________
Print name of Stockholder
Shares beneficially owned:
________ shares of Common Stock
ANNEX B
CONSENT OF SPOUSE
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I, ________________________________, spouse of______________________
acknowledge that I have read the Voting Agreement dated as of November 17, 1997
to which this Consent of Spouse is attached as Annex B (the "Agreement") and
that I know its contents. I am aware that by its provisions, shares of capital
stock of Visigenic Software, Inc. which my spouse owns (including any interest I
might have therein) are subject to certain transfer and voting restrictions.
I agree that my interest, if any, in the Stock subject to the Agreement
shall be bound by the Agreement and further understand and agree that any
community property interest I may have in such capital stock shall be similarly
bound by the Agreement.
Dated as of the 17th day of November, 1997.
_______________________________________
Printed Name: _________________________
