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EXHIBIT 10.2
VOTING AGREEMENT
This VOTING AGREEMENT, is dated as of July 8 2001, by and between
divine, inc., a Delaware corporation ("Parent"), and Szlam Partners, L.P., a
Georgia limited partnership, holder of shares of common stock ("Shareholder"),
no par value ("Company Common Stock"), of eshare communications, Inc., a Georgia
corporation ("Company").
WHEREAS, in order to induce Parent and DES Acquisition Company, a
Delaware corporation, to enter into an Agreement and Plan of Merger, dated as of
the date hereof (the "Merger Agreement"), with Company, Parent has requested
Shareholder and Shareholder has agreed, to enter into this Voting Agreement with
respect to 10,745,969 shares of Company Common Stock beneficially owned by
Shareholder, and any shares of Company Common Stock hereafter acquired by
Shareholder or any affiliate of Shareholder upon the exercise of Company Options
(collectively, the "Covered Shares").
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I
GRANT OF PROXY AND VOTING AGREEMENT
SECTION 1.1. VOTING AGREEMENT. In the event that any shareholder action
is to be taken at any time with respect to the approval and adoption of the
Merger Agreement, the Merger and all agreements related to the Merger and any
actions related thereto or contemplated thereby (collectively, the "Transaction
Documents"), whether by written consent, vote of the shareholders of the Company
at a meeting or otherwise, Shareholder agrees to vote all of the Covered Shares
in favor of the approval and adoption of the Transaction Documents. Shareholder
hereby agrees that Shareholder will not vote any Covered Shares in favor of the
approval of any (i) Company Acquisition Proposal, (ii) reorganization,
recapitalization, liquidation or winding up of Company or any other
extraordinary transaction involving Company, (iii) corporate action the
consummation of which would frustrate the purposes of, or prevent or delay the
consummation of the Merger or other transactions contemplated by the Transaction
Documents or (iv) other matter relating to, or in connection with, any of the
foregoing matters.
SECTION 1.2. IRREVOCABLE PROXY. Shareholder hereby revokes any and all
previous proxies granted with respect to the Covered Shares. By entering into
this Voting Agreement, Shareholder hereby grants a proxy appointing Parent, and
each duly elected officer thereof, as such Shareholder's attorney-in-fact and
proxy, with full power of substitution, for and in such Shareholder's name, to
vote, express, consent or dissent, or otherwise to utilize such voting power as
Parent or its proxy or substitute shall, in Parent's sole discretion, deem
proper with respect to the Covered Shares to effect any action described in
Section 1.1 above, including, without limitation, the right to sign its name (as
Shareholder) to any consent, certificate or other document relating to Company
that the law of the State of Georgia may permit or require in furtherance of the
approval and adoption of the Merger, the Merger Agreement, and the transactions
contemplated thereby, or
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with respect to any other proposed Company Acquisition Proposal. Shareholder
retains the right to vote or otherwise utilize its voting power for all purposes
not inconsistent with this Section 1.2. The proxy granted by Shareholder
pursuant to this Article I is irrevocable for the term of this Voting Agreement
and is granted in consideration of Parent entering into this Voting Agreement,
the Merger Agreement and the Stockholder Agreement, of even date herewith, by
and among Parent, Shareholder and Aleksander Szlam, an individual resident of
Georgia (the "Stockholder Agreement"), and incurring certain related fees and
expenses.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
Shareholder represents and warrants to Parent that:
SECTION 2.1. AUTHORIZATION. This Voting Agreement has been duly
executed and delivered by and the consummation of the transactions contemplated
hereby are within the powers of Shareholder. If this Voting Agreement is being
executed in a representative or fiduciary capacity, the person signing this
Voting Agreement has full power and authority to enter into and perform this
Voting Agreement. The obligations under this Voting Agreement constitute the
legal, valid and binding obligations of Shareholder.
SECTION 2.2. NON-CONTREVENTION. The execution, delivery and, subject to
compliance with the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as
amended (the "HSR Act"), and securities laws, as applicable, performance by
Shareholder of this Voting Agreement, do not and will not (i) violate any
applicable law, rule, regulation, judgment, injunction, order or decree, (ii)
require any consent or other action by any person under, constitute a default
under or give rise to any right of termination, cancellation or acceleration
under any provision of any agreement or other instrument binding on Shareholder
or (iii) result in the imposition of any Encumbrance on the Covered Shares.
SECTION 2.3. OWNERSHIP OF COVERED SHARES. Shareholder is the record and
beneficial owner of the Covered Shares, free and clear of any Encumbrance and
any other limitation or restriction (including any restriction on the right to
vote or otherwise dispose of the Covered Shares) other than restrictions under
the Securities Act of 1933, as amended. None of the Covered Shares is subject to
any voting trust or other agreement or arrangement with respect to the voting of
the Covered Shares. Shareholder possesses the sole and exclusive right to vote
all of the Covered Shares in any vote of the shareholders of the Company.
SECTION 2.4. TOTAL SHARES. Except for an aggregate of 11,143,395 shares
of Company Common Stock, Shareholder does not beneficially own any (i) shares of
capital stock or voting securities of Company, (ii) securities of Company
convertible into or exchangeable for shares of capital stock or voting
securities of the Company or (iii) options or other rights to acquire from
Company any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of Company. If Shareholder
acquires any additional shares after the date hereof, Shareholder will notify
Parent in writing within two business days of such acquisition, but in any event
prior to the date of the shareholder meeting of the Company.
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ARTICLE III
COVENANTS OF SHAREHOLDER
Shareholder hereby covenants and agrees that:
SECTION 3.1. NO PROXIES FOR OR ENCUMBRANCES ON COVERED SHARES. Except
pursuant to the terms of this Voting Agreement or the Stockholder Agreement,
Shareholder shall not, without prior written consent of Parent, directly or
indirectly, (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Covered Shares with
respect to any matter described in Section 1.1 of this Voting Agreement or (ii)
acquire, sell, assign, transfer, encumber or otherwise dispose of, or enter into
any contract, option or other arrangement or understanding with respect to the
direct or indirect acquisition or sale, assignment, transfer, encumbrance or
other disposition of, any Covered Shares during the term of this Voting
Agreement other than pursuant to the Merger, the Stockholder Agreement or the
Transaction Documents. Shareholder shall not seek or solicit any such
acquisition or sale, assignment, transfer, encumbrance of other disposition or
any such contract, option or other arrangement or understanding and agrees to
notify Parent promptly, and to provide all details required by Parent, if
Shareholder shall be approached or solicited, directly or indirectly, by any
Person with respect to any of the foregoing.
SECTION 3.2. APPRAISAL RIGHTS. Shareholder agrees not to exercise any
rights (including, without limitation, under Section 14-2-1302 of the Georgia
Business Corporation Code) to demand appraisal of any Covered Shares which may
arise with respect to the Merger.
SECTION 3.3. LEGEND OF COVERED SHARES. Shareholder agrees that, within
five business days of the date of this Voting Agreement, the following legend
shall be placed on the certificates representing the Covered Shares:
"THE VOTING OF THE SHARES REPRESENTED BY THIS CERTIFICATE IS SUBJECT TO
CERTAIN TERMS AND CONDITIONS SET FORTH IN A VOTING AGREEMENT BETWEEN
DIVINE, INC. AND THE SHAREHOLDER, A COPY OF WHICH IS ON FILE WITH THE
SECRETARY OF THE COMPANY."
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT
Parent represents and warrants to Shareholder that:
SECTION 4.1. AUTHORIZATION. This Voting Agreement has been duly
executed and delivered by, and the consummation of the transactions contemplated
hereby are within the powers of Parent. If this Voting Agreement is being
executed in a representative or fiduciary capacity, the
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person signing this Voting Agreement has full power and authority to enter and
perform this Voting Agreement. The obligations under this Voting Agreement
constitute the legal, valid and binding obligations of Parent.
SECTION 4.2. NON-CONTRAVENTION. The execution, delivery and, subject to
compliance with the HSR Act and securities laws, as applicable, performance by
Parent of this Voting Agreement, do not and will not (i) violate any applicable
law, rule, regulation, judgment, injunction, order or decree, or (ii) require
any consent or other action by any person under, constitute a default under or
give rise to any right of termination, cancellation or acceleration under any
provision of any agreement or other instrument binding on Parent.
ARTICLE V
MISCELLANEOUS
SECTION 5.1. TERMINATION. This Voting Agreement shall terminate and be
of no further force or effect upon the termination of the Merger Agreement in
accordance with its terms.
SECTION 5.2. FURTHER ASSURANCES. Parent and Shareholder will each
execute and deliver, or cause to be executed and delivered, all further
documents and instruments and use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations, to consummate and make
effective the transactions contemplated by this Voting Agreement.
SECTION 5.3. AMENDMENTS. Any provision of this Voting Agreement may be
amended or waived if, but only if, such amendment or waiver in writing is
signed, in the case of an amendment, by each party to this Voting Agreement or
in the case of a waiver, by the party against whom the waiver is to be
effective.
SECTION 5.4. DUTIES AS DIRECTOR. Nothing contained in this Voting
Agreement shall be deemed to restrict Shareholder from taking actions in his
capacity as a director of the Company as may be permitted under the Merger
Agreement.
SECTION 5.5. EXPENSES. All costs and expenses incurred in connection
with this Voting Agreement shall be paid by the party incurring such cost or
expense.
SECTION 5.6. PARTIES IN INTEREST; SUCCESSORS AND ASSIGNS. The
provisions of this Voting Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, each party hereto and their respective heirs,
beneficiaries, executors, representatives, successors and assigns; provided that
no party may assign, delegate or otherwise transfer any of its rights or
obligations under this Voting Agreement without the consent of the other party
hereto, except that Parent may transfer or assign its rights and obligations to
any affiliate of Parent. Nothing in this Voting Agreement, express or implied,
is intended to or shall confer upon any other person any right, benefit or
remedy of any nature whatsoever under or by reason of this Voting Agreement.
SECTION 5.7. GOVERNING LAW. This Voting Agreement shall be construed in
accordance with and governed by the laws of the State of Delaware, without
giving effect to the principles of conflicts of law thereof.
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SECTION 5.8. CONSENT TO JURISDICTION. Each of Parent and Shareholder
hereby irrevocably submits in any suit, action or proceeding arising out of or
related to this Voting Agreement or any other instrument, document or agreement
executed or delivered in connection herewith and the transactions contemplated
hereby and thereby, whether arising in contract, tort, equity or otherwise, to
the exclusive jurisdiction of any state or federal court located in the State of
Delaware and waives any and all objections to jurisdiction that it may have
under the laws of the United States or of any state. Each of Parent and
Shareholder waives any objection that it may have (including, without
limitation, any objection of the laying of venue or based on FORUM NON
CONVENIENS) to the location of the court in any proceeding commenced in
accordance with this Section 5.8.
SECTION 5.9. COUNTERPARTS; EFFECTIVENESS. This Voting Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instruments. This Voting Agreement shall become effective when each party hereto
shall have received counterparts hereof signed by the other party hereto.
SECTION 5.10. SEVERABILITY. If any term, provision or covenant of this
Voting Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions and
covenants of this Voting Agreement shall remain in full force and effect and
shall in no way be affected, impaired or invalidated.
SECTION 5.11. SPECIFIC PERFORMANCE. The parties hereto agree that
irreparable damage would occur in the event any provision of this Voting
Agreement is 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 to which they are entitled at law or in equity
without the posting of a bond or other security.
SECTION 5.12. CAPITALIZED TERMS. Capitalized terms used but not defined
herein shall have the respective meanings set forth in the Merger Agreement.
SECTION 5.13. NO STRICT CONSTRUCTION. The language used in this Voting
Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be used
against any person hereto.
[END OF DOCUMENT;
SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties hereto have cause this Voting Agreement
to be duly executed as of the day and year first above written.
divine, inc.
By: /s/ Jude Sullivan
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Name: Jude Sullivan
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Its: Senior Vice-President
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Szlam Partners, L.P.
By: Szlam Management Company, LLC
Its: General Partner
By: /s/ Aleksander Szlam
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Name: Aleksander Szlam
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Title: Managing Member
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