EXHIBIT 7
FORM
OF
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of September
23, 2001 by and among Warburg Pincus Private Equity VIII, L.P. ("Investor"),
the stockholder of Evolve Software, Inc. whose name appears on the signature
page of this Agreement (the "Stockholder"), and, if applicable, solely for
purposes of Article IV hereof, the individual identified on Exhibit "A" hereto
(the "Spouse").
WHEREAS, as of the date hereof, the 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 ("Company Common Stock"), of Evolve
Software, Inc., a Delaware corporation (the "Company") as set forth on Exhibit
"B" hereto (all such Company Common Stock and any shares of Company Common
Stock of which ownership of record or the power to vote is hereafter acquired
by the Stockholder prior to the termination of this Agreement being referred to
herein as the "Shares").
WHEREAS, concurrently with the execution and delivery of this Agreement,
Investor and the Company are entering into a Series A Preferred Stock Purchase
Agreement of even date herewith (as the same may be amended from time to time,
the "Purchase Agreement") which provides, upon the terms and subject to the
conditions thereof, for Investor's purchase of preferred stock to be issued by
the Company (the "Investment"). Capitalized terms used but not defined in this
Agreement shall have the respective meanings ascribed to them in the Purchase
Agreement.
WHEREAS, as a condition to the willingness of Investor to enter into the
Purchase Agreement, Investor has requested that the Stockholder agrees, and, in
order to induce Investor to enter into the Purchase Agreement, the Stockholder
has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
agreements and covenants set forth herein and in the Purchase Agreement, and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01. Vote in Favor of Investment and Related Matters. During the
period commencing on the date hereof and terminating at the earliest to occur
of (a) the approval by the Company's stockholders of each of the matters
described herein, (b) the termination of the Purchase Agreement according to
the terms set forth therein, (c) the repayment of any convertible promissory
notes issued pursuant to that certain side Letter Agreement between the
Investor and the Company dated September __, 2001, and (d) the termination of
this Agreement
by mutual consent of the parties (the "Term"), the Stockholder, solely in the
Stockholder's capacity as a stockholder of the Company, agrees to vote (or
cause to be voted) all of the Shares at any meeting of the stockholders of the
Company, and in any action by written consent of the stockholders of the
Company, (i) in favor of the approval of the transactions contemplated by the
Purchase Agreement including the issuance of capital stock of the Company
pursuant thereto, (ii) in favor, to the extent it is necessary, of an increase
in the number of authorized, but unissued, shares of Company Common Stock, in
an amount determined by the Company's Board of Directors, (iii) in favor, if
proposed by the Company's Board of Directors, of a reverse stock split of the
Company's Common Stock, and (iv) in favor of any other matter directly relating
to and in furtherance of consummation of the transactions contemplated by the
Purchase Agreement.
SECTION 1.02. Grant of Proxy; Further Assurances.
(a) The Stockholder, by this Agreement, with respect to the Shares, does
hereby revoke any and all previous proxies granted with respect to the Shares,
and irrevocably constitute and appoint Investor, or any nominee of Investor,
with full power of substitution, as his, her or its true and lawful attorney
and proxy, for and in his, her or its name, place and stead, to vote each of
such Shares as the Stockholder's proxy, at every annual, special or adjourned
meeting of the stockholders of the Company (including the right to sign his,
her or its name (as shareholder) to any consent, certificate or other document
relating to the Company that may be permitted or required by applicable law) in
accordance with the provisions set forth in Section 1.01. The Stockholder
acknowledges receipt and review of a copy of the Purchase Agreement.
(b) The Stockholder shall perform such further acts and execute such
further documents and instruments as may reasonably be required to vest in
Investor the power to carry out the provisions of this Agreement.
(c ) The Stockholder will not, during the Term, sell or otherwise dispose
of the Shares unless each transferee of any Shares shall execute and deliver to
Investor an identical form of this Agreement prior to the effectiveness of such
transfer. The Stockholder also agrees and consents to the entry of stop
transfer instructions with the Company's transfer agent and registrar against
the transfer of the Shares except in compliance with the foregoing restriction.
ARTICLE II
REPRESENTATIONS AND WARRANTIES;
COVENANTS OF THE STOCKHOLDERS
The Stockholder hereby represents and warrants and covenants to Investor
as follows:
SECTION 2.01. Organization; Authorization. The Stockholder has all legal
capacity to execute and deliver this Agreement and to consummate the
transactions contemplated
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hereby. This Agreement has been duly executed and delivered by or on behalf of
the Stockholder and, assuming its due authorization, execution and delivery by
Investor, constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms.
SECTION 2.02. No Conflict; Required Filings and Consents.
(a) The execution and delivery of this Agreement by the Stockholder does
not, and the performance of this Agreement by the Stockholder will not, (i)
conflict with or violate any law, rule, regulation, order, judgment or decree
applicable to the Stockholder or by which it or any of the Stockholder's
properties is bound or affected, or (ii) 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 another party any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the property or assets of the Stockholder, (including,
without limitation, the Shares) pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which the Stockholder is a party or by which the
Stockholder or any of the 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 the Stockholder is a trustee whose consent is required for
the execution and delivery of this Agreement or the consummation by the
Stockholder of the transactions contemplated by this Agreement.
(b) The execution and delivery of this Agreement by the Stockholder does
not, and the performance of this Agreement by the Stockholder will not, require
any consent, approval, authorization or permit of, or filing with or
notification to, any governmental or regulatory authority, domestic or foreign,
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent or
materially delay the performance by the Stockholder of the Stockholder's
obligations under this Agreement. Except as set forth in the Amended and
Restated Stockholder Rights Agreement dated June 28, 2000 among the Company and
various Stockholders, the Stockholder does not have any understanding in effect
with respect to the voting or transfer of any Shares.
SECTION 2.03. Litigation. There is no private or governmental action,
suit, proceeding, claim, arbitration or investigation pending before any
agency, court or tribunal, foreign or domestic, or, to the knowledge of the
Stockholder or any of the Stockholder's affiliates, threatened against the
Stockholder or any of the Stockholder's affiliates or any of the Stockholder's
properties or any of its officers or directors, in the case of a corporate
entity (in their capacities as such) that, individually or in the aggregate,
would reasonably be expected to materially delay or impair the Stockholder's
ability to consummate the transactions contemplated by this Agreement. There is
no judgment, decree or order against the Stockholder or any of the
Stockholder's affiliates, or, to the knowledge of the Stockholder of any of the
Stockholder's affiliates, any of its directors or officers, in the case of a
corporate entity (in their capacities as such), or any of its partners (in the
case of a partnership) that would prevent, enjoin, alter or materially delay
any of the transactions contemplated by this Agreement, or that would
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reasonably be expected to have a material adverse effect on the Stockholder's
ability to consummate the transactions contemplated by this Agreement.
SECTION 2.04. Title to Shares. The Stockholder is the record or beneficial
owner of the Shares free and clear of all encumbrances, proxies or voting
restrictions that would prevent the Stockholder from satisfying its obligations
pursuant to this Agreement. The Shares are all the securities of the Company
owned of record or beneficially by the Stockholder on the date of this
Agreement.
SECTION 2.05. Finder's Fees. No investment banker, broker, finder or other
intermediary is entitled to a fee or commission from Investor or the Company in
respect of this Agreement based upon any arrangement or agreement made by or on
behalf of the Stockholder.
ARTICLE III
GENERAL PROVISIONS
SECTION 3.01. Notices. All notices and other communications given or made
pursuant hereto shall be in writing and shall be given (and shall be deemed to
have been duly given upon receipt) by delivery in person, by cable, telecopy,
telegram or telex or by registered or certified mail (postage prepaid, return
receipt requested) 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 3.01):
(a) If to the Investor:
Warburg Pincus Private Equity VIII, L.P.
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, General Counsel
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
with a copy to:
Mr. ▇▇▇▇▇ ▇▇▇▇▇▇
Warburg Pincus LLC
▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.: ▇▇▇-▇▇▇-▇▇▇▇
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and a copy to:
▇▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No.: (▇▇▇) ▇▇▇-▇▇▇▇
(b) If to the Stockholder, to the address set forth as the signature page
hereto.
SECTION 3.02. 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 3.03. 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 to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
SECTION 3.04. Entire Agreement. This Agreement constitutes 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 3.05. 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 no party may assign,
delegate or otherwise transfer any of its rights, interests or obligations
under this Agreement without the prior written consent of the other parties
hereto, except that Investor may assign, delegate or otherwise transfer any of
its rights, interests or obligations under this Agreement to an affiliate
without the consent of the Stockholder.
SECTION 3.06. 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 3.07. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
SECTION 3.08. Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of Delaware applicable to
contracts executed in and to be performed in that State. All actions and
proceeding arising out of or relating to this Agreement shall be heard and
determined in the courts located in the State of Delaware.
SECTION 3.09. 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. The
rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 3.10. 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.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES:
COVENANTS OF THE SPOUSES
The Spouse hereby represents and warrants and covenants to Investor as
follows:
SECTION 4.01. Waiver of Community Property Rights. The Spouse shall not
assert or enforce, and does hereby waive, any rights granted under any
community property statute with respect the Shares which would adversely affect
the covenants made by the Stockholder pursuant to this Agreement; The Spouse
acknowledges receipt and review of a copy of the Purchase Agreement and this
Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date first written above.
WARBURG PINCUS PRIVATE
EQUITY VIII, L.P.
By:
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[STOCKHOLDERS]
By:
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