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EXHIBIT 9.1
VOTING AGREEMENT
THIS VOTING AGREEMENT is dated as of May 20, 2000 (this "Agreement"),
among Active Software, Inc., a Delaware corporation (the "Company"), and each
other party who is a signatory hereto (each a "Stockholder" and collectively the
"Stockholders"). Capitalized words not otherwise defined in this Agreement shall
have the meaning set forth in the Merger Agreement.
WHEREAS, each Stockholder desires that, the Company, Parent and Merger
Sub enter into an Agreement and Plan of Merger dated as of the date hereof (as
the same may be amended or supplemented, the "Merger Agreement"), pursuant to
which it is intended that the Company shall merge with Merger Sub ("Merger");
WHEREAS, as of the date hereof, each Stockholder is beneficial owner
of, and has the right to vote and dispose of the number of shares of Parent
Common Stock which is set forth opposite such Stockholder's name in Schedule A
hereto;
WHEREAS, as the Company has solicited proxies from the individuals and
entities as indicated on Schedule A hereto; and
WHEREAS, each Stockholder is executing this Agreement as an inducement
to the Company to enter into and execute the Merger Agreement;
NOW, THEREFORE, in consideration of the execution and delivery by the
Company of the Merger Agreement and the representations, warranties, covenants,
conditions and agreements contained herein and therein, the parties agree as
follows:
SECTION 1. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS. Each
Stockholder, severally, and not jointly, represents, warrants and covenants to
the Company as of the date of this Agreement, as follows:
(a) Stockholder is the record holder and/or beneficial owner
of the number of shares of Parent Common Stock set forth opposite such
Stockholder's name in Schedule A hereto, as such Schedule is amended or
modified pursuant to Section 5 hereof (the "Stockholder's Shares" or
"Shares"). Except for the Stockholder's Shares, Stockholder is not the
record or beneficial owner of any other shares of Parent Common Stock.
(b) This Agreement has been duly authorized, executed and
delivered by the Stockholder and, assuming due execution and delivery
of this Agreement by the other parties hereto, shall constitute the
legal, valid and binding obligation of the Stockholder, enforceable
against the Stockholder in accordance with its terms (except as
enforceability may be limited by applicable bankruptcy, insolvency,
moratorium or similar laws
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affecting creditors' rights generally or by principles governing the
availability of equitable remedies). Neither the execution and delivery
of this Agreement nor the performance by the Stockholder of this
Agreement will result in a violation of, or a default under, or
conflict with, any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which the
Stockholder is a party or bound or to which the Stockholder's Shares
are subject. No trust of which the Stockholder is a trustee requires
the consent of any beneficiary to the execution and delivery of this
Agreement or to the consummation of the transactions contemplated
hereby. If the Stockholder is married and the Stockholder's Shares
constitute community property, this Agreement has been duly authorized,
executed and delivered by, and constitutes a valid and binding
agreement of, the Stockholder's spouse, enforceable against such person
in accordance with its terms (except as enforceability may be limited
by applicable bankruptcy, insolvency, moratorium or similar laws
affecting creditors' rights generally or by principles governing the
availability of equitable remedies). The execution and delivery of the
Agreement by the Stockholder and performance of this Agreement will not
violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Stockholder or the Stockholder's Shares.
(c) The Stockholder understands and acknowledges that the
Company is entering into the Merger Agreement in reliance upon the
Stockholder's execution and delivery of this Agreement.
(d) Each Stockholder is acting individually and not part of a
"group" in Section 13(d) of the Exchange Act.
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE COMPANY. The Company
represents, warrants and covenants to each Stockholder, as of the date of this
Agreement, as follows:
(a) This Agreement and the Merger Agreement have been duly and
validly executed and delivered by the Company, as applicable, and
assuming due execution and delivery of this Agreement by the other
parties thereto, shall constitute the legal, valid and binding
obligation of the Company, as applicable, enforceable in accordance
with their terms, except as enforceability may be limited by bankruptcy
and other similar laws and general principles of equity. Neither the
execution and delivery of this Agreement or the Merger Agreement nor
the consummation of the Merger or the transactions contemplated hereby
will result in the violation of, or a default under, or conflict with,
any contract, trust, commitment, agreement, understanding, arrangement
or restriction of any kind to which the Company is a party or bound.
Execution and delivery by the Company of this Agreement and the Merger
Agreement and performance of the transactions contemplated thereby will
not violate or require any consent, approval, notice under any
provision of any judgment, order, decree, statute, law, rule or
regulation applicable to the Company, except for (i) applicable
requirements, if any, of the Exchange Act, the Securities Act, the Blue
Sky Laws and the HSR Act, in each case, including rules and regulations
promulgated thereunder and (ii) the Certificate of Merger.
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(b) The Company understands and acknowledge that each
Stockholder is entering into this Agreement in reliance upon the
covenant and agreement of the Company to perform their respective
covenants and obligations under the Merger Agreement in accordance with
its terms.
SECTION 3. VOTING AGREEMENT. Each Stockholder hereby agrees, severally
and not jointly, that it shall, and shall cause the holder of record of any
Shares beneficially owned by such Stockholder on any applicable record date and
stockholder meeting date or the date the Shares are voted by written consent (as
the case may be) to, from time to time, at the request of the Company, at any
meeting (whether annual or special and whether or not an adjourned or postponed
meeting) of stockholders of the Parent, however called, or in connection with
any written consent of the holders of Parent Common Stock, (a) if a meeting is
held at which matters relating to approval of the issuance of shares of Parent
Common Stock in connection with the Merger are considered, appear at such
meeting or otherwise cause the Shares to be counted as present thereat for
purposes of establishing a quorum, and (b) vote or consent (or cause to be voted
or consented), in person or by proxy, all Shares, and any other voting
securities of the Company (whether acquired heretofore or hereafter) that are
beneficially owned or held of record by such Stockholder or as to which such
Stockholder has, directly or indirectly, the right to vote or direct the voting,
in favor of the issuance of shares of Parent Common Stock in connection with the
Merger.
SECTION 4. GRANT OF PROXY. Each Stockholder indicated on Schedule A as
having its proxy solicited, hereby irrevocably appoints and constitutes the
Company and R. Xxxxx Xxxxx, in his capacity as an officer of the Company,
agents, attorneys and proxies of the undersigned, from the date hereof until the
earlier to occur of the termination of this Agreement or the Effective Time,
with full power of substitution and resubstitution, to the full extent of the
undersigned's rights with respect to the Shares then held by such Stockholder on
any applicable record date and stockholder meeting date or the date the Shares
are voted by written consent (as the case may be), to vote such Shares as
follows: the agents and proxies named above are empowered at any time prior to
termination of this proxy to exercise all voting and other rights (including,
without limitation, the power to execute and deliver written consents with
respect to such Shares) of the undersigned at every annual, special or adjourned
meeting of Company stockholders, and in every written consent in lieu of such a
meeting, or otherwise, in favor of the approval of the issuance of shares of
Parent Common Stock in connection with the Merger.
SECTION 5. TRANSFER RESTRICTIONS.
(a) Each Stockholder, indicated on Schedule A as agreeing to
the provisions of this Section 5, severally and not jointly, hereby
agrees, while this Agreement is in effect, and except as contemplated
hereby, upon any sale, transfer, pledge, or other disposition of any
shares to any person or entity, such person or entity shall agree to be
bound by all of the terms and conditions of this Agreement and the
Stockholder shall deliver a duly executed copy of the Agreement to the
Company to evidence such Agreement prior to any such sale, transfer,
pledge or other disposition.
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(b) Except with respect to transfers permitted under Section
5(a), each Stockholder shall not request that the Parent or its
transfer agent register the transfer (book-entry or otherwise) of any
certificate or uncertificated interest representing any of such
Stockholder's Shares, and hereby consents to the entry of stop transfer
instructions by the Parent of any transfer of such Stockholder's
Shares, unless such transfer is made in compliance with this Agreement.
SECTION 6. FURTHER ASSURANCES. Each Stockholder shall, upon request of
the Company, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by the Company to be necessary or desirable
to carry out the provisions hereof.
SECTION 7. NO OWNERSHIP INTEREST. Nothing contained in this Agreement
shall be deemed to vest in the Company any direct or indirect ownership or
incidence of ownership of or with respect to any Shares. All rights, ownership
and economic benefits of and relating to the Shares shall remain vested in and
belong to the Stockholders, and the Company shall have no authority to manage,
direct, superintend, restrict, regulate, govern, or administer any of the
policies or operations of the Parent or exercise any power or authority to
direct the Stockholders in the voting of any of the Shares, except as otherwise
provided herein, or in the performance of the Stockholders' duties or
responsibilities as stockholders of the Parent
SECTION 8. DOCUMENTS DELIVERED. Each Stockholder acknowledges receipt
of copies of the Merger Agreement and all exhibits and schedules thereto. Each
Stockholder also acknowledges that such Stockholder possesses all the
information which such Stockholder deems relevant or material to such
Stockholder's entering into this Agreement.
SECTION 9. NO INCONSISTENT AGREEMENTS. Each Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, the Stockholder (a) has not entered, and shall not enter at
any time while this Agreement remains in effect, into any voting agreement or
voting trust with respect to the Shares and (b) has not granted, and shall not
grant at any time while this Agreement remains in effect, a proxy or power of
attorney with respect to the Shares, in either case, which is inconsistent with
such Stockholder's obligations pursuant to this Agreement.
SECTION 10. TERMINATION. This Agreement shall terminate and no party
shall have any rights or duties hereunder upon the earlier of (a) the Effective
Time or (b) the date termination of the Merger Agreement in accordance with its
terms. Nothing in this Section 5 shall relieve or otherwise limit any party of
liability for breach of this Agreement.
SECTION 11. SURVIVAL OF REPRESENTATIONS, WARRANTIES AND COVENANTS. All
representations, warranties and covenants made by each Stockholder in or
pursuant to this Agreement or in any document delivered pursuant hereto shall be
deemed to have been made on the date of this Agreement (except as otherwise
provided herein).
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SECTION 12. REMEDIES CUMULATIVE. Prior to the Effective Time, the
remedies set forth in this Agreement shall be cumulative and shall not be
construed to restrict or otherwise affect any other remedies that may be
available to the parties under any other agreement or pursuant to statutory or
common law.
SECTION 13. MISCELLANEOUS.
(a) All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier
(providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as shall be specified by like
notice): (i) if to the Company, to the address set forth in Section 8.2
of the Merger Agreement; and (ii) if to a Stockholder, to the address
set forth in Schedule A hereto, or such other address as may be
specified in writing by Stockholder.
(b) 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.
(c) This Agreement may be executed in two or more
counterparts, all of which shall be considered one and the same
agreement and shall become effective as to a Stockholder when one or
more counterparts have been signed by each of the Company and such
Stockholder and delivered to each of them.
(d) This Agreement (including the documents and instruments
referred to herein) constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, among
the parties with respect to the subject matter hereof.
(e) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of
conflicts of laws thereof.
(f) Neither this Agreement nor any of the rights, interests or
obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by any of the parties without
the prior written consent of the other parties, except by laws of
descent.
(g) If any term, provision, covenant or restriction herein, or
the application thereof to any circumstance, shall, to any extent, be
held by a court of competent jurisdiction to be invalid, void or
unenforceable, the remainder of the terms, provisions, covenants and
restrictions herein and the application thereof to any other
circumstances, shall remain in full force and effect, shall not in any
way be affected, impaired or invalidated, and shall be enforced to the
fullest extent permitted by law.
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(h) The Company and each Stockholder agree that irreparable
damage would occur and that the Company would not have any adequate
remedy at law in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were
otherwise breached. It is accordingly agreed that the Company shall be
entitled to an injunction or injunctions to prevent breaches by
Stockholder or the Company of this Agreement and to enforce
specifically the terms and provisions of this Agreement in any court of
the United States.
(i) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in
writing and signed by such party. The Company agrees not to amend or
modify the Merger Agreement unless each Stockholder shall have
consented to such amendment or modification.
SECTION 14. SEVERAL OBLIGATIONS; CAPACITY.
(a) The representations, warranties, covenants, agreements and
conditions of this Agreement applicable to the Stockholders are several
and not joint.
(b) The obligations of the Stockholders hereunder are several
and not joint and the covenants and agreements of the Stockholders
herein are made only in their capacity as stockholders of the Parent
and not as directors or officers.
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IN WITNESS WHEREOF, the Company and each Stockholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
ACTIVE SOFTWARE, INC.
By: /s/ R. XXXXX XXXXX
----------------------------------------
Title: CEO
STOCKHOLDERS:
/s/ XXXXXXX XXXXX
--------------------------------------------
Xxxxxxx Xxxxx
/s/ XXXXX XXXXXX
--------------------------------------------
Xxxxx Xxxxxx
/s/ XXXXXX X. XXXX
--------------------------------------------
Xxxxxx X. Xxxx
DELL USA L.P.
By: /s/ XXXX X. XXXXX
----------------------------------------
Title: Vice President
/s/ XXXXX XXXXXX
--------------------------------------------
Xxxxx XxXxxx
/s/ XXXX XXXXX
--------------------------------------------
Xxxx Xxxxx
FBR TECHNOLOGY VENTURE PARTNERS, L.P.
By: /s/ XXXX XXXXXXXX
----------------------------------------
Title: Managing Director
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THE XXXXXXX SACHS GROUP, INC.
By:
----------------------------------------
Title:
-------------------------------------
/s/ XXXXXX X. XXXXX
--------------------------------------------
Xxxxxx X. Xxxxx
/s/ XXXXXXX X. XXXXXXXXX
--------------------------------------------
Xxxxxxx X. Xxxxxxxxx
/s/ XXXX X. XXXXX
--------------------------------------------
Xxxx X. Xxxxx
XXXXXXXX ASSOCIATES FUND IV
By: /s/ XXXXXXX X. XXXXXXXXX
----------------------------------------
Title: General Partner
XXXXXXXX IX
By: /s/ XXXXXXX X. XXXXXXXXX
----------------------------------------
Title: General Partner
/s/ XXXXXXX XXXXXXX
--------------------------------------------
Xxxxxxx Xxxxxxx
/s/ XXXXX XXXXXXXX
--------------------------------------------
Xxxxx Xxxxxxxx
/s/ XXXX XXXXXXXX
--------------------------------------------
Xxxx Xxxxxxxx
/s/ XXXXXX X. XXXXX
--------------------------------------------
Xxxxxx X. Xxxxx
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SCHEDULE A
----------
Number of Stockholder Agreed to
Name and Address of Stockholder Shares Proxy Solicited Section 5
------------------------------- ------ --------------- ---------
Xxxxxxx Xxxxx 378,852 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxx Xxxxxx 68,933 x
000 Xxxxx Xxxxxxxxx, No. 802
XXX 000
Xxxxxxx Xxxxxxx, Xxxxxx 00000
Xxxxxx X. Xxxx 1,178,197 x x
X.X. Xxx 0000
000 Xxxx Xxxxxx
Xxxx Xxxx, Xxxx 00000
Dell USA L.P. 2,450,944 x
Xxx Xxxx Xxx
Xxxxx Xxxx, Xxxxx 00000
Attn:
Xxxxx XxXxxx 3,315,296 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxx 37,921 x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
FBR Technology Venture Partners, L.P. 2,746,822 x x
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx Xxxxxxxx
The Xxxxxxx Sachs Group, Inc. 1,816,758
00 Xxxxx Xxxxxx
00xx Xxxxx
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Number of Stockholder Agreed to
Name and Address of Stockholder Shares Proxy Solicited Section 5
------------------------------- ------ --------------- ---------
Xxx Xxxx, Xxx Xxxx 00000
Attn:
Xxxxxx X. Xxxxx 68,464 x
c/o FDX Corporation
000 Xxxxx Xxxxx Xxxxx Xxxx
Xxxxxxx, Xxxxxxxxx 00000
Xxxxxxx X. Xxxxxxxxx 5,625,817 x
c/x Xxxxxxxx Fund
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Xxxx X. Xxxxx 1,163,776 x x
c/o Shaw Xxxxxxx
0000 Xxxxxxxxxxxxx Xxxxx
XxXxxx, Xxxxxxxx 00000
Xxxxxxxx Associates Fund IV
c/x Xxxxxxxx Fund 5,608,978 x x
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Xxxxxxxx IX
c/x Xxxxxxxx Fund 5,608,978 x x
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxxxx Xxxxxxxxx
Xxxxxxx Xxxxxxx 3,315,296 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxxx Xxxxxxxx 229,236 x x
c/o webMethods, Inc.
0000 Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Xxxx Xxxxxxxx 2,752,954 x
c/o FBR Technology Venture
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Number of Stockholder Agreed to
Name and Address of Stockholder Shares Proxy Solicited Section 5
------------------------------- ------ --------------- ---------
Partners, L.P. X
00000 Xxxxxxx Xxxxxx Xxxxx
Xxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxx 5,786,256 x
c/x Xxxxxxxx Fund
0000 Xxxx Xxxx Xxxx Xxxxx 000
Xxxxx Xxxx, Xxxxxxxxxx 00000