EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
December 19, 2002 by and between Sybase, Inc., a Delaware corporation
("Parent"), and the undersigned stockholder and/or option holder (the
"Stockholder") of AvantGo, Inc., a Delaware corporation (the "Company").
RECITALS:
A. Parent, the Company and Merger Sub (as defined below) have entered into
an Agreement and Plan of Merger (the "Merger Agreement"), which provides for the
merger (the "Merger") of a wholly-owned subsidiary of Parent ("Merger Sub") with
and into the Company, pursuant to which all outstanding capital stock of the
Company will be converted into the right to receive a cash payment, as set forth
in the Merger Agreement.
B. The Stockholder is the beneficial owner (as defined in Rule 13d-3 under
the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of such
number of shares of the outstanding capital stock of the Company, and such
number of shares of capital stock of the Company issuable upon the exercise of
outstanding options and warrants, as is indicated on the signature page of this
Agreement.
C. In consideration of the execution of the Merger Agreement by Parent,
the Stockholder (in his or her capacity as such) has agreed to vote the Shares
(as defined below) and such other shares of capital stock of the Company over
which the Stockholder has voting power, so as to facilitate consummation of the
Merger.
NOW, THEREFORE, intending to be legally bound hereby, the parties hereto
hereby agree as follows:
1. Certain Definitions. Capitalized terms used but not defined herein
shall have the respective meanings ascribed thereto in the Merger Agreement. For
all purposes of and under this Agreement, the following terms shall have the
following respective meanings:
(a) "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 its terms, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and conditions set forth in the Merger
Agreement.
(b) "person" shall mean any individual, corporation, limited
liability company, general or limited partnership, business trust,
unincorporated association or other business organization or entity, or any
governmental authority.
(c) "Shares" shall mean: (i) all securities of the Company
(including all shares of capital stock of the Company and all options, warrants
and other rights to acquire shares of capital stock of the Company) owned by the
Stockholder as of the date of this Agreement, and (ii) all additional securities
of the Company (including all additional shares of capital stock of the Company
and all additional options, warrants and other rights to acquire shares of
capital stock of the Company) of which the Stockholder acquires beneficial
ownership during the period commencing with the execution and delivery of this
Agreement until the Expiration Date.
(d) Transfer. A person shall be deemed to have effected a "Transfer"
of a security if such person directly or indirectly (i) sells, pledges,
encumbers, grants an option with respect to, transfers or otherwise disposes of
such security or any interest therein, or (ii) enters into an agreement or
commitment providing for the sale of, pledge of, encumbrance of, grant of an
option with respect to, transfer of or other disposition of such security or any
interest therein.
2. Transfer of Shares.
(a) Transfer of Shares. The Stockholder hereby agrees that, at all
times during the period commencing with the execution and delivery of this
Agreement until the Expiration Date, the Stockholder shall not cause or permit
any Transfer of any of the Shares to be effected or make any offer regarding any
Transfer of any of the Shares.
(b) Transfer of Voting Rights. The Stockholder hereby agrees that,
at all times commencing with the execution and delivery of this Agreement until
the Expiration Date, the Stockholder shall not deposit, or permit the deposit
of, any Shares in a voting trust, grant any proxy in respect of the Shares, or
enter into any voting agreement or similar arrangement, commitment or
understanding in a manner inconsistent with the terms of Section 3 hereof or
otherwise in contravention of the obligations of the Stockholder under this
Agreement, with respect to any of the Shares.
3. Agreement to Vote Shares. Until the Expiration Date, at every meeting
of stockholders of the Company called with respect to any of the following, and
at every adjournment or postponement thereof, and on every action or approval by
written consent of stockholders of the Company with respect to any of the
following, the Stockholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy (as defined in Section 4 hereof), the Shares:
(a) in favor of approval of the Merger and the adoption and approval
of the Merger Agreement, and in favor of each of the other actions contemplated
by the Merger Agreement;
(b) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions contemplated
by the Merger Agreement;
(c) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by the Merger
Agreement): (A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company, or the corporate
structure of the Company or any subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede,
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interfere with, delay, postpone, discourage or adversely affect the Merger or
any of the other transactions contemplated by the Merger Agreement; and
(d) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
person, or any consolidation or merger of the Company or any subsidiary of the
Company with or into any person.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
the Stockholder agrees to deliver to Parent a proxy in the form attached hereto
as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent
permissible by applicable law, with respect to the Shares.
5. No Solicitation. Except as permitted by the Merger Agreement,
Stockholder agrees that between the date of this Agreement and the Expiration
Date, Stockholder will not, nor will Stockholder authorize or permit any of its
officers, directors, controlled affiliates or employees or any of their
respective investment bankers, attorneys or other advisors or representatives
to, directly or indirectly: (i) solicit, initiate, encourage or take an action
intended to induce the making, submission or announcement of any Acquisition
Proposal; or (ii) engage or participate in any discussions or negotiations with
any person regarding, or furnish to any person any information with respect to,
or take any other action intended to facilitate any inquiries or the making of
any proposal that constitutes or may reasonably be expected to lead to, any
Acquisition Proposal. Stockholder will, and will direct or cause its officers,
directors, controlled affiliates and employees and their respective investment
bankers, attorneys or other advisors or representatives to, immediately cease
and cause to be terminated any discussions or negotiations with any parties that
may be ongoing with respect to any Acquisition Proposal. Stockholder will
promptly advise Parent orally and in writing of any Acquisition Proposal or any
request for information with respect to any Acquisition Proposal received by
Stockholder, the material terms and conditions of such Acquisition Proposal or
request and the identity of the person making such Acquisition Proposal or
request.
6. Representations and Warranties of the Stockholder. The Stockholder
hereby represents and warrants to Parent that, as of the date hereof and at all
times until the Expiration Date, the Stockholder (i) is (and will be) the
beneficial owner of the shares of capital stock of the Company, and the options,
warrants and other rights to purchase shares of capital stock of the Company,
set forth on signature page of this Agreement, with full power to vote or direct
the voting of the Shares for and on behalf of all beneficial owners of the
Shares; (ii) the Shares are (and will be) free and clear of any liens, pledges,
security interests, claims, options, rights of first refusal, co-sale rights,
charges or other encumbrances of any kind or nature (each an "Encumbrance")
(other than those Encumbrances which are in favor of the Company, provided
Parent shall have been provided with copies of the relevant documentation
related thereto); (iii) does not (and will not) beneficially own any securities
of the Company other than the shares of capital stock of the Company, and
options, warrants and other rights to purchase shares of capital stock of the
Company, set forth on the signature page of this Agreement; and (iv) has (and
will have) full power and authority to make, enter into and carry out the terms
of this Agreement and the Proxy.
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7. Consent and Waiver. The Stockholder (not in his or her capacity as a
director or officer of the Company) hereby gives any consents or waivers that
are reasonably required for the consummation of the Merger under the terms of
any agreements to which the Stockholder is a party, or pursuant to any rights
Stockholder may have.
8. Legending of Shares. If so requested by Parent, the Stockholder hereby
agrees that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy.
9. Termination. This Agreement shall terminate and be of no further force
or effect as of the Expiration Date.
10. Miscellaneous.
(a) Waiver. No waiver by any party hereto of any condition or any
breach of any term or provision set forth in this Agreement shall not be
effective unless in writing and signed by each party hereto. The waiver of a
condition or any breach of any term or provision of this Agreement shall not
operate as or be construed to be a waiver of any other previous or subsequent
breach of any term or provision of this Agreement.
(b) Severability. In the event that any term, provision, covenant or
restriction set forth in this Agreement, or the application of any such term,
provision, covenant or restriction to any person, entity or set of
circumstances, shall be determined by a court of competent jurisdiction to be
invalid, unlawful, void or unenforceable to any extent, the remainder of the
terms, provisions, covenants and restrictions set forth in this Agreement, and
the application of such terms, provisions, covenants and restrictions to
persons, entities or circumstances other than those as to which it is determined
to be invalid, unlawful, void or unenforceable, shall remain in full force and
effect, shall not be impaired, invalidated or otherwise affected and shall
continue to be valid and enforceable to the fullest extent permitted by
applicable law.
(c) Binding Effect; Assignment. This Agreement and all of the terms
and 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 Stockholder may be assigned to
any other person without the prior written consent of Parent.
(d) Amendments. This Agreement may not be modified, amended, altered
or supplemented, except upon the execution and delivery of a written agreement
executed by each of the parties hereto.
(e) Specific Performance; Injunctive Relief. Each of the parties
hereto hereby acknowledge that (i) the representations, warranties, covenants
and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of Parent and to preserve for Parent the benefits of
the Merger; (ii) such covenants relate to matters which are of a special,
unique, and extraordinary character that gives each such representation,
warranty, covenant and restriction a special, unique, and extraordinary value;
and (iii) a breach of any such representation, warranty, covenant or
restriction, or any other term or provision of this Agreement, will result in
irreparable
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harm and damages to Parent which cannot be adequately compensated by a monetary
award. Accordingly, Parent and the Stockholder hereby expressly agree that in
addition to all other remedies available at law or in equity, Parent shall be
entitled to the immediate remedy of specific performance, a temporary and/or
permanent restraining order, preliminary injunction, or such other form of
injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from breaching any
representations, warranties, covenants or restrictions set forth in this
Agreement, or to specifically enforce the terms and provisions hereof.
(f) Governing Law. This Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws of the State of
Delaware without giving effect to any choice or conflict of law provision, rule
or principle (whether of the State of Delaware or any other jurisdiction) that
would cause the application of the laws of any jurisdiction other than the State
of Delaware.
(g) Entire Agreement. This Agreement and the Proxy and the other
agreements referred to in this Agreement set forth the entire agreement and
understanding of Parent and the Stockholder with respect to the subject matter
hereof and thereof, and supersede all prior discussions, agreements and
understandings between Parent and the Stockholder, both oral and written, with
respect to the subject matter hereof and thereof.
(h) Notices. All notices and other communications pursuant to this
Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
respective parties at the following address (or at such other address for a
party as shall be specified by like notice):
If to Parent: Sybase, Inc.
Xxx Xxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxx Xxxx
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
with a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
One Market, Xxxxx Xxxxxx Xxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx X. Xxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Stockholder: To the address for notice set forth on the
signature page hereof.
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(i) Further Assurances. The Stockholder (in his or her capacity as
such) shall execute and deliver any additional certificate, instruments and
other documents, and take any additional actions, as Parent may deem necessary
or desirable, in the reasonable opinion of Parent, to carry out and effectuate
the purpose and intent of this Agreement.
(j) Headings. The section headings set forth in this Agreement are
for convenience of reference only and shall not affect the construction or
interpretation of this Agreement in any manner.
(k) Counterparts. This Agreement may be executed in several
counterparts, each of which shall be deemed an original, and all of which
together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to be duly
executed as of the date first written above.
SYBASE, INC. STOCKHOLDER:
By: __________________________________ By: ___________________________________
Signature of Authorized Signatory Signature
Name: ________________________________ Name: _________________________________
Title: _______________________________ Title: ________________________________
_______________________________________
_______________________________________
Print Address
_______________________________________
Telephone
_______________________________________
Facsimile No.
Share beneficially owned:
_______ shares of Company capital stock
_______ shares of Company capital stock
issuable upon the exercise of
outstanding options, warrants or other
rights
*****VOTING AGREEMENT*****
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of AvantGo, Inc., a Delaware corporation (the
"Company"), hereby irrevocably (to the fullest extent permitted by law) appoints
the directors of the Board of Directors of Sybase, 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 irrevocable proxy (the "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 execution of
this Proxy by the undersigned, any and all prior proxies given by the
undersigned with respect to any Shares are hereby revoked and the undersigned
hereby 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 between Parent and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger (the "Merger
Agreement"), by and among Parent, Seurat Acquisition Corporation, a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and the
Company, which 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 its terms,
or (ii) such date and time as the Merger shall become effective in accordance
with the terms and conditions set forth in 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, adjourned or postponed meeting of
stockholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger and the adoption and approval
of the Merger Agreement, and in favor of each of the other actions contemplated
by the Merger Agreement;
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the transactions contemplated
by the Merger Agreement;
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by the Merger
Agreement): (A) any merger, consolidation, business combination, sale of assets,
reorganization or recapitalization of the Company or any subsidiary of the
Company with any party, (B) any sale, lease or transfer of any significant part
of the assets of the Company or any subsidiary of the Company, (C) any
reorganization, recapitalization, dissolution, liquidation or winding up of the
Company or any subsidiary of the Company, (D) any material change in the
capitalization of the Company or any subsidiary of the Company, or the corporate
structure of the Company or any subsidiary of the Company, or (E) any other
action that is intended, or could reasonably be expected to, impede, interfere
with, delay, postpone, discourage or adversely affect the Merger or any of the
other transactions contemplated by the Merger Agreement; and
(iv) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company or any subsidiary of the
Company, any reclassification or recapitalization of the capital stock of the
Company or any subsidiary of the Company, or any sale of assets, change of
control, or acquisition of the Company or any subsidiary of the Company by any
person, or any consolidation or merger of the Company or any subsidiary of the
Company with or into any person.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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: December ____, 2002
Signature of Stockholder: ______________________
Print Name of Stockholder: _____________________
Shares beneficially owned: _____________________
________ shares of Company capital stock
________ shares of the Company capital
stock issuable upon the exercise of
outstanding options, warrants or other
rights
