Exhibit 99.1
FORM OF SHAREHOLDER VOTING AGREEMENT
SHAREHOLDER VOTING AGREEMENT, dated as of November 1, 2001 (this
"Agreement"), among the shareholders listed on the signature page(s) hereto
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(collectively, "Shareholders" and each individually, a "Shareholder") and
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divine, inc., a Delaware corporation ("Parent"). Capitalized terms used and not
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otherwise defined herein shall have the respective meanings assigned to them in
the Merger Agreement referred to below.
WHEREAS, as of the date hereof, the Shareholders collectively own of record
and beneficially shares of capital stock of the Company, as set forth on the
signature pages hereto (such shares, or any other voting or equity of securities
of the Company hereafter acquired by any Shareholder prior to the termination of
this Agreement, being referred to herein collectively as the "Shares");
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WHEREAS, concurrently with the execution of this Agreement, Parent and the
Company are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), pursuant to which, upon the terms and subject
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to the conditions thereof, a subsidiary of Parent will be merged with and into
the Company, and the Company will be the surviving corporation (the "Merger");
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and
WHEREAS, as a condition to the willingness of the Parent to enter into the
Merger Agreement, the Parent has required that the Shareholders agree, and in
order to induce the Parent to enter into the Merger Agreement, the Shareholders
are willing to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section 1. Voting of Shares.
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(a) Each Shareholder covenants and agrees that, until the termination of
this Agreement in accordance with the terms hereof, at the Company Shareholder
Meeting or any other meeting of the Shareholders of the Company, however called,
and in any action by written consent of the shareholders of the Company, such
Shareholder will vote, or cause to be voted, all of such Shareholder's
respective Shares in favor of the adoption and approval of the Merger Agreement,
the Merger, and the transactions contemplated by the Merger Agreement, as the
Merger Agreement may be modified or amended from time to time in a manner not
adverse to the Shareholders. Each Shareholder further covenants and agrees that
such Shareholder will not vote any Shares in favor of any of the following
(other than the Merger and the transactions contemplated by the Merger
Agreement): (i) any Company Acquisition Proposal, (ii) any merger,
consolidation, reorganization, recapitalization, sale of assets, liquidation,
dissolution, or other business combination transaction involving the Company,
(iii) any removal of members of the board of directors of the Company, (iv) any
amendment to the Company's articles of incorporation, (v) any other action that
is inconsistent with the Merger or 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 or this Shareholder Agreement.
(b) Each Shareholder hereby irrevocably grants to, and appoints, the
Parent, and any individual designated in writing by the Parent, and each of them
individually, as such Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in its name, place and stead, to vote his, her or its
Shares at any meeting of the shareholders of Company called with respect to any
of the matters specified in, and in accordance and consistent with this Section
1. Each Shareholder understands and acknowledges that the Parent is entering
into the Merger Agreement in reliance upon the Shareholder's execution and
delivery of this Agreement. Each Shareholder hereby affirms that the
irrevocable proxy set forth in this Section 1(b) is given in connection with the
execution of the Merger Agreement, and that such irrevocable proxy is given to
secure the performance of the duties of such Shareholder under this Agreement.
Except as otherwise provided for herein, each Shareholder hereby (i) affirms
that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked, (ii) ratifies and confirms all that the proxies
appointed hereunder may lawfully do or cause to be done by virtue hereof and
(iii) affirms that such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Article 2.29(c) of the Texas
Business Corporation Act. Notwithstanding any other provisions of this
Agreement, the irrevocable proxy granted hereunder shall automatically terminate
upon the termination of this Agreement.
Section 2. Transfer of Shares. Each Shareholder covenants and agrees that
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such Shareholder will not, directly or indirectly, (i) sell, assign, transfer
(including by merger, testamentary disposition, interspousal disposition
pursuant to a domestic relations proceeding or otherwise by operation of law),
pledge, encumber or otherwise dispose of any of the Shares; (ii) deposit any of
the Shares into a voting trust or enter into a voting agreement or arrangement
with respect to the Shares or grant any proxy or power of attorney with respect
thereto which is inconsistent with this Agreement; or (iii) enter into any
contract, option or other arrangement or undertaking with respect to the direct
or indirect sale, assignment, transfer (including by merger, testamentary
disposition, interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law) or other disposition of any Shares.
Section 3. Representations and Warranties of the Shareholders. Each
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Shareholder, on its own behalf, hereby severally represents and warrants to the
Parent with respect to itself and its, his or her ownership of the Shares,
except as otherwise disclosed on the applicable signature page hereto, as
follows:
(a) Ownership of Shares. The Shareholder beneficially owns all of the
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Shares as set forth on the applicable signature page hereto and has good and
marketable title to such Shares, free and clear of any claims, liens,
encumbrances and security interests whatsoever. The Shareholder owns no shares
of Company Common Stock other than the Shares as set forth on the signature
page. The Shareholder has sole voting power, without restrictions, with respect
to all of the Shares.
(b) Power, Binding Agreement. The Shareholder has the legal capacity and
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all requisite power and authority to enter into and perform all of its
obligations, under this Agreement. This Agreement has been duly and validly
executed and delivered by the
Shareholder and constitutes a valid and binding obligation of the Shareholder,
enforceable against the Shareholder in accordance with its terms.
(c) No Conflicts. The execution and delivery of this Agreement do not, and
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the consummation of the transactions contemplated hereby will not, conflict with
or result in any violation of, or default (with or without notice or lapse of
time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, any
provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to the Shareholder, the Shares or any of the Shareholder's properties or assets.
Except as expressly contemplated hereby and except as may be disclosed in the
Company SEC Reports, the Shareholder is not a party to, and the Shares are not
subject to or bound in any manner by, any contract or agreement relating to the
Shares, including without limitation, any voting agreement, option agreement,
purchase agreement, shareholders' agreement, partnership agreement or voting
trust. Except for the expiration or termination of the waiting period under the
HSR Act, if applicable, and informational filings with the Securities and
Exchange Commission, no consent, approval, order or authorization of, or
registration, declaration or filing with, any court, administrative agency or
commission or other governmental authority or instrumentality, domestic, foreign
or supranational, is required by or with respect to the Shareholder in
connection with the execution and delivery of this Agreement or the consummation
by the Shareholder of the transactions contemplated hereby.
Section 4. Termination. This Agreement shall terminate upon the
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termination of the Merger Agreement in accordance with its terms; provided that
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no such termination of this Agreement shall relieve any party of liability for a
willful breach hereof prior to termination.
Section 5. Specific Performance. The parties hereto agree that irreparable
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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 6. Fiduciary Duties. Each Shareholder is signing this Agreement
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solely in such Shareholder's capacity as an owner of his, her or its respective
Shares, and nothing herein shall prohibit, prevent or preclude such Shareholder
from taking or not taking any action in his or her capacity as an officer or
director of the Company, to the extent permitted by the Merger Agreement.
Section 7. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the entire agreement
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between the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral,
between the parties with respect thereto. This Agreement may not be amended,
modified or rescinded except by an instrument in writing signed by each of the
parties hereto.
(b) Severability. If any term or other provision of this Agreement is
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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.
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 a
mutually acceptable manner in order that the terms of this Agreement remain as
originally contemplated to the fullest extent possible.
(c) Governing Law. This Agreement shall be governed by and construed in
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accordance with the laws of the State of Texas without regard to the principles
of conflicts of law thereof.
(d) Counterparts. This Agreement may be executed in counterparts, each of
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which shall be deemed an original and all of which together shall constitute one
and the same instrument.
(e) Notices. All notices and other communications hereunder shall be in
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writing and shall be deemed duly delivered (i) four business days after being
sent by registered or certified mail, return receipt requested, postage prepaid,
or (ii) one business day after being sent for next business day delivery, fees
prepaid, via a reputable nationwide overnight courier service, in each case to
the intended recipient as set forth below:
(i) if to a Shareholder to the address set forth on the respective
signature page of this Agreement;
(ii) if to the Parent to:
divine, inc.
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▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: Chief Financial Officer and General Counsel
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
with a copy to:
▇▇▇▇, ▇▇▇▇ & ▇▇▇▇▇ LLC
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▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: D. ▇▇▇▇ ▇▇▇▇▇▇▇▇, Esq.
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
(f) No Third Party Beneficiaries. This Agreement is not intended, and
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shall not be deemed, to confer any rights or remedies upon any person other than
the parties hereto and their respective successors and permitted assigns, to
create any agreement of employment with any person or to otherwise create any
third-party beneficiary hereto.
(g) Assignment. Neither this Agreement nor any of the rights, interests or
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obligations under this Agreement may be assigned or delegated, in whole or in
part, by operation of law or
otherwise by any of the parties hereto without the prior written consent of the
other parties, and any such assignment without such prior written consent shall
be null and void, except that the Parent may assign this Agreement to any direct
or indirect wholly owned subsidiary of the Parent without consent of the Company
or the Shareholder, provided that the Parent shall remain liable for all of its
obligations under this Agreement. Subject to the preceding sentence, this
Agreement shall be binding upon, inure to the benefit of, and be enforceable by,
the parties hereto and their respective successors and permitted assigns.
(h) Interpretation. When reference is made in this Agreement to an Article
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or a Section, such reference shall be to an Article or Section of this
Agreement, unless otherwise indicated. The headings contained in this Agreement
are for convenience of reference only and shall not affect in any way the
meaning or interpretation of this Agreement. The language used in this
Agreement shall be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction shall be applied
against any party. Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa. Any reference to any federal, state, local or foreign statute or law
shall be deemed also to refer to all rules and regulations promulgated
thereunder, unless the context requires otherwise. Whenever the words
"include", "includes" or "including" are used in this Agreement, they shall be
deemed to be followed by the words "without limitation". No summary of this
Agreement prepared by the parties shall affect in any way the meaning or
interpretation of this Agreement.
(i) Submission to Jurisdiction. Each of the parties to this Agreement (a)
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consents to submit itself to the personal jurisdiction of any state or federal
court sitting in the State of Delaware in any action or proceeding arising out
of or relating to this Agreement or any of the transactions contemplated by this
Agreement, (b) agrees that all claims in respect of such action or proceeding
may be heard and determined in any such court, (c) agrees that it will not
attempt to deny or defeat such personal jurisdiction by motion or other request
for leave from any such court and (d) agrees not to bring any action or
proceeding arising out of or relating to this Agreement or any of the
transaction contemplated by this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto. Any
party hereto may make service on another party by sending or delivering a copy
of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 7(e). Nothing in this Section,
however, shall affect the right of any party to serve legal process in any other
manner permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF THE PARENT, THE COMPANY AND EACH
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SHAREHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF THE PARENT, THE COMPANY OR EACH SHAREHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.