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FORM OF
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
June 20, 2000, among Commerce One, Inc., a Delaware corporation ("PARENT"), and
the undersigned stockholder and/or option holder (the "STOCKHOLDER") of Appnet,
Inc., a Delaware corporation (the "COMPANY").
WHEREAS, the Company, Sub (as defined below), Parent and certain other
parties have entered into an Agreement and Plan of Merger and Reorganization
(the "REORGANIZATION AGREEMENT"), which provides for the merger (the "Merger")
of Constitution Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Parent ("SUB") into the Company. Pursuant to the Merger, all
issued and outstanding capital stock of the Company shall be converted into the
right to receive common stock of Parent, as set forth in the Reorganization
Agreement;
WHEREAS, Stockholder is the beneficial owner (as defined in Rule 13d-3
under the Securities Exchange Act of 1934, as amended (the "EXCHANGE ACT")) of
such number of shares of the outstanding capital stock of the Company and shares
subject to outstanding options and warrants as is indicated on the signature
page of this Agreement; and
WHEREAS, in consideration of the execution of the Reorganization
Agreement by Parent, Stockholder (in his or her capacity as such) agrees to vote
the Shares (as defined below) and other such shares of capital stock of the
Company over which Stockholder has voting power so as to facilitate consummation
of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. CERTAIN DEFINITIONS. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Reorganization Agreement. For purposes of
this Agreement:
(a) "EXPIRATION DATE" shall mean the earlier to occur of (i)
twenty (20) days following such date and time as the Reorganization Agreement
shall have been terminated pursuant to Article VII thereof, or (ii) such date
and time as the Merger shall become effective in accordance with the terms and
provisions of the Reorganization Agreement.
(b) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(c) "SHARES" 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 Stockholder 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 Stockholder acquires ownership during the period from the date of this
Agreement through the Expiration Date.
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(d) TRANSFER. A Person shall be deemed to have 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 SHARES.
(a) TRANSFEREE OF SHARES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Stockholder shall not cause or permit any Transfer
of any of the Shares to be effected unless such Transfer is in accordance with
any affiliate agreement between Stockholder and Parent contemplated by the
Reorganization Agreement and each Person to which any of such Shares, or any
interest in any of such Shares, 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 Shares (or interest in such Shares) subject to
all of the terms and provisions of this Agreement; provided, however, that
following the record date for the Company Stockholders' Meeting, GTCR Fund VI,
L.P. may distribute Shares to its constituent partners without the consent of
Parent, and without the transferees of such Shares being bound by this Agreement
(except to the extent an individual has executed this Agreement in his or her
individual capacity) if at the time of such distribution there is no Acquisition
Proposal for the Company pending, announced or under consideration by the
Company.
(b) TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during
the period from the date of this Agreement through the Expiration Date,
Stockholder shall not deposit (or permit the deposit of) any Shares in a voting
trust or grant any proxy or enter into any voting agreement or similar agreement
in contravention of the obligations of Stockholder under this Agreement with
respect to any of the Shares.
3. AGREEMENT TO VOTE SHARES. At every meeting of the Stockholders of
the Company called, and at every adjournment thereof, and on every action or
approval by written consent of the Stockholders of the Company, Stockholder (in
its, his or her capacity as such) shall cause the Shares to be voted in favor of
approval of the Reorganization Agreement and the Merger, in favor of each of the
other transactions contemplated by the Reorganization Agreement, in favor of any
matter that could reasonably be expected to facilitate the Merger and against
any matter that is inconsistent with the prompt consummation of the Merger and
other transactions contemplated by the Reorganization Agreement.
4. AGREEMENT TO TENDER SHARES. Stockholder hereby agrees to tender,
upon the request of Parent (and agrees that it will not withdraw), pursuant to
and in accordance with the terms of the Reorganization Agreement, the Shares.
Within five business days after the request of Parent, Stockholder shall (x)
deliver to the depositary designated by Parent (i) a letter of transmittal with
respect to the Shares complying with the terms of the Reorganization Agreement,
(ii) certificates representing of the Shares and (iii) all other documents or
instruments required to be delivered pursuant to the terms
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of the Reorganization Agreement, and/or (y) instruct its broker or such other
person who is the holder of record of any Shares beneficially owned by such
Stockholder to tender such shares for exchange pursuant to the terms and
conditions of the Reorganization Agreement.
5. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Stockholder hereby revokes any and all previous proxies granted with
respect to the Shares and agrees to deliver to Parent a proxy in the form
attached hereto as EXHIBIT A (the "PROXY"), which shall be irrevocable to the
fullest extent permissible by law, with respect to the Shares.
6. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. Stockholder
hereby represents, warrants and covenants to Parent that such Stockholder (a) is
the sole beneficial owner of the shares of Company Common Stock of the Company
and the options and warrants to purchase shares of Common Stock of the Company
indicated on the final page of this Agreement, free and clear of any liens,
claims, options, rights of first refusal (except as may be held by the Company),
co-sale rights, charges or other encumbrances; (b) does not beneficially own any
securities of the Company other than the shares of Company Common Stock of the
Company and options and warrants to purchase shares of Capital Stock of the
Company indicated on the final page of this Agreement;(c) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy; and (d) the execution, delivery and performance of this Agreement by such
Stockholder and the consummation of the transactions contemplated hereby, will
not (i) require the consent, waiver, approval, or authorization of any
governmental authority or any other person or entity or (ii) violate, conflict
with, result in a breach of or the acceleration of any obligation under, or
constitute a default (or an event which with notice or the lapse of time or both
would become a default) under, or give to others any right of termination,
amendment, acceleration or cancellation of, or result in the creation of a lien
or other encumbrance on any property or asset of the Stockholder pursuant to any
provision of any indenture, mortgage, lien, lease, agreement, contract,
instrument, order, judgment, ordinance, regulation or decree to which the
Stockholder is subject or by which the Stockholder or any of Stockholder's
property or assets is bound.
7. ADDITIONAL DOCUMENTS. Stockholder (in its, his or her capacity as
such) hereby covenants and agrees to execute and deliver any additional
documents necessary or desirable, in the reasonable opinion of Parent, to carry
out the intent of this Agreement.
8. CONSENT AND WAIVER. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which such Stockholder is a party or pursuant to any rights
such Stockholder may have. Stockholder further agrees to give such additional
consents and waivers as may be reasonably required for the consummation of the
Merger under the terms of any agreement to which such Stockholder is a party or
pursuant to any rights such Stockholder may have. As further clarification, but
not limitation, of the foregoing, Stockholder further agrees to waive any
registration rights it may have with respect to Stockholder's Shares (including
piggyback registration rights) prior to the Expiration Date.
9. LEGENDING OF SHARES. If so requested by Parent, Stockholder agrees
that the Shares shall bear a legend stating that they are subject to this
Agreement and to an irrevocable proxy. Subject to the
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terms of Section 2 hereof, Stockholder agrees that Stockholder shall not
Transfer the Shares without first having the aforementioned legend affixed to
the certificates representing the Shares.
10. TERMINATION. This Agreement and the Proxies delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
11. MISCELLANEOUS.
(a) SEVERABILITY. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
(b) BINDING EFFECT AND ASSIGNMENT. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without prior written consent of the other.
(c) AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
(d) WAIVER. No waiver, alteration or modification of any of
the provisions of this Agreement shall be binding unless in writing and signed
by duly authorized representatives of the parties hereto. No failure or delay by
any party in executing any right, power or privilege hereunder shall operate as
a waiver hereof, nor shall any single or partial exercise hereof preclude any
other or future exercise hereof or the exercise of any other right, power or
privilege hereof.
(e) SPECIFIC PERFORMANCE; INJUNCTIVE RELIEF. The parties
hereto acknowledge that Parent shall be irreparably harmed and that there shall
be no adequate remedy at law for a violation of any of the covenants or
agreements of Stockholder set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Parent upon any such
violation, Parent shall have the right to enforce such covenants and agreements
by specific performance, injunctive relief or by any other means available to
Parent at law or in equity.
(f) NOTICES. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to Parent: Commerce One, Inc.
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1600 Riviera Avenue, Suite 200
Walnut Creek, California 94596
Attention: Robert Tarkoff
Telephone No.: (925) 941-6022
Facsimile No.: (925) 941-6066
With a copy to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Attention: N. Anthony Jeffries, Esq.
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
If to Stockholder: To the address for notice set forth
on the signature page hereof.
(g) GOVERNING LAW. This Agreement shall be governed by the
laws of the State of Delaware, without reference to rules of conflicts of law.
(h) ENTIRE AGREEMENT. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(i) EFFECT OF HEADINGS. The Section headings are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
(j) FACSIMILE; COUNTERPARTS. This Agreement may be executed by
facsimile and in several counterparts, each of which shall be an original, but
all of which together shall constitute one and the same agreement.
(k) NO LIMITATION ON ACTIONS OF STOCKHOLDER AS DIRECTOR.
Notwithstanding anything to the contrary in this Agreement, in the event
Stockholder is a director of the Company, nothing in this Agreement is intended
or shall be construed to require Stockholder, in Stockholder's capacity as a
director of the Company, to act or fail to act in accordance with Stockholder's
fiduciary duties in such capacity.
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly executed
on the day and year first above written.
COMMERCE ONE, INC. STOCKHOLDER
By: ___________________________________ By: _____________________________
Signature of Authorized Signatory Signature
Name: ___________________________________ Name:
Title: __________________________________ Title:
_________________________________
_________________________________
Print Address
_________________________________
Telephone
_________________________________
Facsimile No.
Shares beneficially owned:
_______________ shares of
Company Common Stock
_______________ shares of
Company Common Stock
issuable upon exercise of
outstanding options or warrants
[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned Stockholder of Appnet, Inc., a Delaware corporation
(the "COMPANY"), hereby irrevocably (to the fullest extent permitted by law)
appoints Mark Hoffman, Peter Pervere and Rob Tarkoff and each of them, as the
sole and exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of the Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of the Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "SHARES") in accordance with the terms
of this Proxy. The Shares beneficially owned by the undersigned Stockholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy. Upon the undersigned's execution of this Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Commerce One, Inc., a Delaware
corporation ("PARENT") and the undersigned Stockholder (the "VOTING AGREEMENT"),
and is granted in consideration of Parent entering into that certain Agreement
and Plan of Merger and Reorganization (the "REORGANIZATION AGREEMENT"), among
Parent, Constitution Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Parent ("SUB"), and the Company. The Reorganization
Agreement provides for the merger of the Sub with and into the Company in
accordance with its terms (the "MERGER"). As used herein, the term "EXPIRATION
DATE" shall mean the earlier to occur of (i) such date and time as the
Reorganization Agreement shall have been validly terminated pursuant to Article
VII thereof or (ii) such date and time as the Merger shall become effective in
accordance with the terms and provisions of the Reorganization Agreement.
Capitalized terms not defined herein shall have the meanings ascribed to them in
the Reorganization Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of Stockholders
of the Company and in every written consent in lieu of such meeting in favor of
approval of the Reorganization Agreement and the Merger, in favor of each of the
other transactions contemplated by the Reorganization Agreement, in favor of any
matter that could reasonably be expected to facilitate the Merger and against
any matter that is inconsistent with the prompt consummation of the Merger or
other transactions contemplated by the Reorganization Agreement.
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The attorneys and proxies named above may not exercise this Proxy on
any other matter except as provided above. The undersigned Stockholder may vote
the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
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This Proxy is irrevocable (to the fullest extent permitted by law).
This Proxy shall terminate, and be of no further force and effect, automatically
upon the Expiration Date.
Dated:___________________________, 2000
Signature of Stockholder:___________________
Print Name of Stockholder: ________________
Shares beneficially owned:
__________ shares of Company Common Stock
__________ shares of Company Common Stock
issuable upon exercise of outstanding
options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
