Exhibit 2.3
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of March 1, 1998, by and between
SIEBEL SYSTEMS, INC., a Delaware corporation ("PARENT") and __________
("SHAREHOLDER").
RECITALS
WHEREAS, Shareholder is a shareholder of SCOPUS TECHNOLOGY, INC., a
California corporation. (the "COMPANY").
WHEREAS, Parent, Syracuse Acquisition Sub, Inc., a California corporation
and a wholly-owned subsidiary of Parent ("MERGER SUB"), and the Company, are
entering into an Agreement and Plan of Merger and Reorganization of even date
herewith (the "MERGER AGREEMENT") which provides (subject to the conditions set
forth therein) for the merger of Merger Sub with and into the Company (the
"MERGER").
NOW, THEREFORE, in order to induce Parent and Merger Sub to enter into the
Merger Agreement and consummate the transactions contemplated thereby, and for
other valuable consideration (the receipt and sufficiency of which are hereby
acknowledged by Shareholder), Shareholder hereby covenants and agrees as
follows:
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
1. CERTAIN DEFINITIONS.
For purposes of this Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock, par value
$.001 per share, of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the date upon
which the Merger Agreement is validly terminated pursuant to Section 8 thereof,
or (ii) the date upon which the Merger becomes effective in accordance with the
terms and provisions of the Merger Agreement.
(c) Shareholder shall be deemed to "OWN" or to have acquired
"OWNERSHIP" of a security if Shareholder is the "beneficial owner" (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such
security by virtue of Shareholder, directly or indirectly, having or sharing
voting power over such security.
(d) "PERSON" shall mean any (i) individual, (ii) corporation, limited
liability company, partnership or other entity, or (iii) governmental authority.
1.
(e) "SUBJECT SECURITIES" shall mean: (i) all securities of the Company
(including all shares of Company Common Stock and all options, warrants and
other rights to acquire shares of Company Common Stock) Owned by Shareholder as
of the date of this Agreement; and (ii) all additional securities of the Company
(including all additional shares of Company Common Stock and all additional
options, warrants and other rights to acquire shares of Company Common Stock) of
which Shareholder acquires Ownership during the period from the date of this
Agreement through the Expiration Date.
(f) A Person shall be deemed to have a effected a "TRANSFER" of a
security if such Person directly or indirectly: (i) sells, pledges, encumbers,
grants an option with respect to, transfers or disposes of such security or any
interest in such security; 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 disposition of such security or any interest therein.
2. TRANSFER OF SUBJECT SECURITIES.
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Shareholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Shareholder shall not cause or permit any Transfer
of any of the Subject Securities to be effected unless such Transfer is in
accordance with any affiliate agreement between Shareholder and Parent
contemplated by the Merger Agreement ("AFFILIATE AGREEMENT") to which
Shareholder is bound and each Person to which any of such Subject Securities, or
any interest in any of such Subject Securities, is or may be transferred shall
have: (a) executed a counterpart of this Agreement and a proxy in the form
attached hereto as Exhibit A (with such modifications as Parent may reasonably
request); and (b) agreed in writing to hold such Subject Securities (or interest
in such Subject Securities) subject to all of the terms and provisions of this
Agreement. Notwithstanding the foregoing, during the period from the date of
this Agreement through the Expiration Date, Shareholder may effect a Transfer or
Transfers of no more than an aggregate of 75,000 shares of Company Common Stock
without fulfilling the obligations set forth in (a) or (b) above, provided that
such Transfer or Transfers are in accordance with any Affiliate Agreement to
which Shareholder is bound.
2.2 TRANSFER OF VOTING RIGHTS. Shareholder agrees that, during the period
from the date of this Agreement through the Expiration Date, Shareholder shall
not deposit (or permit the deposit of) any Subject Securities in a voting trust
or grant any proxy or enter into any voting agreement or similar agreement in
contravention of the obligations of Shareholder under this Agreement with
respect to any of the Subject Securities.
3. VOTING OF SHARES.
3.1 VOTING AGREEMENT. Shareholder agrees that, during the period from the
date of this Agreement through the Expiration Date:
(a) at any meeting of shareholders of the Company, however called, and
at every adjournment thereof, Shareholder shall (unless otherwise directed in
writing by Parent)
2.
cause all outstanding shares of Company Common Stock that are Owned by
Shareholder as of the record date fixed for such meeting to be voted in favor of
the approval and adoption of the Merger Agreement and the approval of the
Merger, and in favor of each of the other actions contemplated by the Merger
Agreement; and
(b) in the event written consents are solicited or otherwise sought
from shareholders of the Company with respect to the approval or adoption of the
Merger Agreement, with respect to the approval of the Merger or with respect to
any of the other actions contemplated by the Merger Agreement, Shareholder shall
(unless otherwise directed in writing by Parent) cause to be executed, with
respect to all shares of Company Common Stock that are Owned by Shareholder as
of the record date fixed for the consent to the proposed action, a written
consent or written consents to such proposed action.
3.2 PROXY; FURTHER ASSURANCES.
(a) Contemporaneously with the execution of this Agreement: (i) Shareholder
shall deliver to Parent a proxy executed by Shareholder in the form attached to
this Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "PROXY");
and (ii) Shareholder shall cause to be delivered to Parent an additional proxy
(in the form attached hereto as Exhibit A) executed on behalf of the record
owner of any outstanding shares of Company Common Stock that are Owned by
Shareholder.
(b) From time to time and without additional consideration, Shareholder
shall execute and deliver, or cause to be executed and delivered, such
additional transfers, assignments, endorsements, proxies, consents and other
instruments (at Parent's expense, except with respect to any act that may be
required of Shareholder by Parent as the result of a Transfer), and shall (at
Shareholder's sole expense) take such further actions, as Parent may reasonably
request for the purpose of carrying out and furthering the intent of this
Agreement.
4. WAIVER OF DISSENTERS' RIGHTS.
Shareholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters' rights and any similar rights relating to the Merger that
Shareholder may have by virtue of the ownership of any outstanding shares of
Company Common Stock Owned by Shareholder
5. REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER.
Shareholder hereby represents and warrants to Parent as follows:
5.1 AUTHORIZATION, ETC. Shareholder has the absolute and unrestricted right,
power, authority and capacity to execute and deliver this Agreement and the
Proxy and to perform his obligations hereunder and thereunder. This Agreement
and the Proxy have been duly executed and delivered by Shareholder and
constitute legal, valid and binding obligations of Shareholder, enforceable
against Shareholder in accordance with their terms, subject to (i) laws of
general
3.
application relating to bankruptcy, insolvency and the relief of debtors, and
(ii) rules of law governing specific performance, injunctive relief and other
equitable remedies.
5.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Agreement and the Proxy by
Shareholder do not, and the performance of this Agreement and the Proxy by
Shareholder will not: (i) conflict with or violate any order, decree or judgment
applicable to Shareholder or by which he or any of his properties is or may be
bound or affected; or (ii) result in or constitute (with or without notice or
lapse of time) any breach of or default under, or give to any other Person (with
or without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any encumbrance or restriction on any of the Subject
Securities pursuant to, any contract to which Shareholder is a party or by which
Shareholder or any of his affiliates or properties is or may be bound or
affected.
(b) The execution and delivery of this Agreement and the Proxy by
Shareholder do not, and the performance of this Agreement and the Proxy by
Shareholder will not, require any consent or approval of any Person.
5.3 TITLE TO SECURITIES. As of the date of this Agreement: (a)
Shareholder holds of record (free and clear of any encumbrances or restrictions
that will restrict or interfere in any way with the actions contemplated hereby
or Shareholder's obligations hereunder) the number of outstanding shares of
Company Common Stock set forth under the heading "Shares Held of Record" on the
signature page hereof; (b) Shareholder holds (free and clear of any encumbrances
or restrictions that will restrict or interfere in any way with the actions
contemplated hereby or Shareholder's obligations hereunder) the options,
warrants and other rights to acquire shares of Company Common Stock set forth
under the heading "Options and Other Rights" on the signature page hereof; (c)
Shareholder Owns the additional securities of the Company set forth under the
heading "Additional Securities Beneficially Owned" on the signature page hereof;
and (d) Shareholder does not directly or indirectly Own any shares of capital
stock or other securities of the Company, or any option, warrant or other right
to acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options, warrants and
other rights set forth on the signature page hereof.
5.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Expiration
Date and will be accurate in all respects as of the date of the consummation of
the Merger as if made on that date except that Shareholder's beneficial or
record ownership of securities as represented in Section 5.3 hereof may differ
as of the Expiration Date in the event of acquisitions or Transfers of
securities not prohibited by the terms of this Agreement.
6. MISCELLANEOUS.
4.
6.1 SURVIVAL OF REPRESENTATIONS, WARRANTIES AND AGREEMENTS. All
representations, warranties, covenants and agreements made by Shareholder in
this Agreement shall survive the Expiration Date.
6.2 INDEMNIFICATION. Shareholder shall hold harmless and indemnify Parent
and Parent's affiliates from and against, and shall compensate and reimburse
Parent and Parent's affiliates for, any loss, damage, claim, liability, fee
(including reasonable attorneys' fees), demand, cost or expense (regardless of
whether or not such loss, damage, claim, liability, fee, demand, cost or expense
relates to a third-party claim) that is directly or indirectly suffered or
incurred by Parent or any of Parent's affiliates, or to which Parent or any of
Parent's affiliates otherwise becomes subject, and that arises directly or
indirectly from, or relates directly or indirectly to any inaccuracy in or
breach of any representation, warranty, covenant or obligation of Shareholder
contained in this Agreement or in the Proxy.
6.3 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Agreement shall be paid by the party incurring
such costs and expenses.
6.4 NOTICES. Any notice or other communication required or permitted to be
delivered to Parent or Shareholder under this Agreement shall be in writing and
shall be deemed properly delivered, given and received when delivered (by hand,
by registered mail, by courier or express delivery service or by facsimile
confirmation obtained) to the address or facsimile telephone number set forth
beneath the name of such party below (or to such other address or facsimile
telephone number as such party shall have specified in a written notice given to
the other party):
IF TO SHAREHOLDER:
at the address or facsimile phone number set forth below
Shareholder's signature on the signature page hereof
WITH A COPY TO:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, CA 94304
Attention: Howard Zeprun, Esq.
Fax: (650) 493-6811
IF TO PARENT:
Siebel Systems, Inc.
1885 South Grant Street
San Mateo, CA 94402
Attn: Vice President Legal Affairs
Fax: (650) 295-5116
WITH A COPY TO:
5.
Cooley Godward LLP
3000 Sand Hill Road
Building 3, Suite 230
Menlo Park, CA 94025
Attention: Eric C. Jensen
Fax: (650) 854-2691
6.5 SEVERABILITY. If any provision of this Agreement or any part of any such
provision is held under any circumstances to be invalid or unenforceable in any
jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
6.6 ENTIRE AGREEMENT. This Agreement, the Proxy, and any other documents
delivered by the parties in connection herewith constitute the entire agreement
between the parties with respect to the subject matter hereof and thereof and
supersede all prior agreements and understandings between the parties with
respect thereto.
6.7 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Shareholder and any attempted or purported assignment or delegation
of any of such interests or obligations shall be void. Subject to the preceding
sentence, this Agreement shall be binding upon Shareholder and his heirs,
estate, executors, personal representatives, successors and assigns, and shall
inure to the benefit of Parent and its successors and assigns. This Agreement
shall be binding upon any Person to whom any Subject Securities are transferred
to the extent provided in Section 2 hereof. Nothing in this Agreement is
intended to confer on any Person (other than Parent, the Company and their
successors and assigns) any rights or remedies of any nature.
6.8 SPECIFIC PERFORMANCE. The parties agree that irreparable damage would
occur in the event that any of the provisions of this Agreement or the Proxy was
not performed in accordance with its specific terms or was otherwise breached.
Shareholder agrees that, in the event of any breach or threatened breach by
Shareholder of any covenant or obligation contained in this Agreement or in the
Proxy, Parent shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek and obtain (a) a decree or
order of specific performance to enforce the observance and performance of such
covenant or obligation, and (b) an injunction restraining such breach or
threatened breach.
6.
6.9 NON-EXCLUSIVITY. The rights and remedies of Parent under this Agreement
are not exclusive of or limited by any other rights or remedies which it may
have, whether at law, in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative). Nothing in this Agreement shall limit any of
Shareholder's obligations, or the rights or remedies of Parent, under any
Affiliate Agreement between Parent and Shareholder; and nothing in any such
Affiliate Agreement shall limit any of Shareholder's obligations, or any of the
rights or remedies of Parent, under this Agreement.
6.10 GOVERNING LAW. This Agreement and the Proxy shall be construed in
accordance with, and governed in all respects by, the laws of the State of
California (without giving effect to principles of conflicts of laws).
6.11 COUNTERPARTS. This Agreement may be executed by the parties in
separate counterparts, each of which when so executed and delivered shall be an
original, but all such counterparts shall together constitute one and the same
instrument.
6.12 CAPTIONS. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
6.13 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is brought against Shareholder, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
6.14 WAIVER. No failure on the part of Parent to exercise any power, right,
privilege or remedy under this Agreement, and no delay on the part of Parent in
exercising any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no single or
partial exercise of any such power, right, privilege or remedy shall preclude
any other or further exercise thereof or of any other power, right, privilege or
remedy. Parent shall not be deemed to have waived any claim available to Parent
arising out of this Agreement, or any power, right, privilege or remedy of
Parent under this Agreement, unless the waiver of such claim, power, right,
privilege or remedy is expressly set forth in a written instrument duly executed
and delivered on behalf of Parent; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
[THIS SPACE INTENTIONALLY LEFT BLANK]
7.
IN WITNESS WHEREOF, the undersigned have caused this VOTING AGREEMENT to be
executed as of the date first written above.
Siebel Systems, Inc.
By:_________________________________
Title:______________________________
SHAREHOLDER
____________________________________
Name:
Address:____________________________
____________________________________
____________________________________
Facsimile:__________________________
Additional Securities
Shares Held of Record Options and Other Rights Beneficially Owned
- --------------------- ------------------------ ------------------
8.
EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned shareholder of SCOPUS TECHNOLOGY, INC., a California
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Thomas M. Siebel, Howard H. Graham and SIEBEL
SYSTEMS, INC., a Delaware corporation ("Parent"), and each of them, the
attorneys and proxies of the undersigned with full power of substitution and
resubstitution, to the full extent of the undersigned's rights with respect to
(i) the outstanding shares of capital stock of the Company owned of record by
the undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date hereof. (The
shares of the capital stock of the Company referred to in clauses "(i)" and
"(ii)" of the immediately preceding sentence are collectively referred to as the
"SHARES," and capitalized terms used but not defined herein shall have the
meanings set forth in the Voting Agreement, dated as of the date hereof, between
Parent and Shareholder (the "VOTING AGREEMENT").) Upon the execution hereof,
all prior proxies given by the undersigned with respect to any of the Shares are
hereby revoked, and the undersigned agrees that the undersigned shall not grant
any subsequent proxy at any time prior to the Expiration Date.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, and is granted in consideration of Parent
entering into the Agreement and Plan of Merger and Reorganization, dated as of
the date hereof, among Parent, Syracuse Acquisition Sub, Inc. and the Company
(the "MERGER AGREEMENT").
The attorneys and proxies named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the Expiration Date at any
meeting of the shareholders of the Company, however called, or in connection
with any solicitation of written consents from shareholders of the Company, in
favor of the approval and adoption of the Merger Agreement and the approval of
the Merger, and in favor of each of the other actions contemplated by the Merger
Agreement.
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or
A-1
9.
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate upon the Expiration Date.
Dated: March 1, 1998
-----------------------------------
Name:
Number of shares of common stock of
the Company owned of record as of
the date of this proxy:
-----------------------------------
2
10.