Exhibit 2.02
STOCKHOLDER VOTING
AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT
(this “ Agreement ”) is entered into as of the
day of August, 2005 between BEA
Systems, Inc., a Delaware corporation (“ Parent
”), and the undersigned Stockholder (“
Stockholder ”) of Plumtree Software, Inc., a Delaware
corporation (“ Company ”). Capitalized terms
used but not otherwise defined herein shall have the meanings given
to such terms in the Merger Agreement (as defined
below).
RECITALS
A. Parent, Baja Inc., a Delaware
corporation and a wholly-owned subsidiary of Parent (“
Merger Sub ”), and Company will enter into an
Agreement and Plan of Merger, dated as of August 22, 2005 (the
“ Merger Agreement ”), pursuant to which Merger
Sub will be merged with and into Company (the “ Merger
”).
B. In contemplation of executing the
Merger Agreement, the parties agreed that concurrently with the
execution of the Merger Agreement, Parent and Stockholder would
execute and deliver a Stockholder Voting Agreement containing the
terms and conditions set forth herein.
C. Stockholder understands and
acknowledges that Parent, Merger Sub, Company and their respective
Stockholders, as well as legal counsel to Parent, Merger Sub and
Company, are entitled to rely on (x) the truth and accuracy of
Stockholder’s representations contained herein and (y)
Stockholder’s performance of the obligations set forth
herein.
NOW, THEREFORE, in consideration of
the promises and the mutual agreements, provisions and covenants
set forth in the Merger Agreement and in this Agreement, it is
hereby agreed as follows:
1. Share Ownership; Agreement to
Retain Shares .
1.1 Transfer and Encumbrance
.
(a) Stockholder is the beneficial
owner of that number of shares of Company Capital Stock (as such
term is defined in the Merger Agreement) and that number of shares
of Company Capital Stock issuable upon the exercise in full of the
options for shares of Company Capital Stock set forth on the
signature page hereto (the “ Shares ”). These
Shares constitute Stockholder’s entire beneficial interest in
the outstanding capital stock of Company. No other person or entity
not a signatory to this Agreement has a beneficial interest in or a
right to acquire such Shares or any portion of such Shares (except
for such Stockholder’s spouse and to the extent such
Stockholder is a partnership; the partners thereof shall be deemed
to have a beneficial interest). As of the date hereof, except as
set forth on the signature page hereto, (i) the Shares are free and
clear of any liens, claims, options, charges or other encumbrances;
(ii) none of the Shares is deposited into a voting trust with
voting instructions inconsistent with any of the provisions of
Section 2; and (iii) other than the Proxy, as defined below, no
proxy is granted, and no voting agreement or similar agreement is
entered into, with respect to any of the Shares that is
inconsistent with any of the provisions of Section 2.
Stockholder’s principal residence or place of business is set
forth on the signature page hereto.
(b) Stockholder agrees not to
transfer (except as may be specifically required by court order or
by operation of law), sell, exchange, pledge or otherwise dispose
of or encumber the Shares, or deposit any Shares into a voting
trust or grant a proxy (except for the Proxy, as defined below) or
to make any offer or other agreement relating thereto, at any time
prior to the Expiration Date, unless the transferee of such Shares
agrees in writing to be bound by the terms hereof. Stockholder
agrees and consents to the entry of stop transfer instructions by
the Company consistent with the terms of this Section 1 against the
transfer of any Shares. As used herein, the term “
Expiration Date ” shall mean the earlier to occur of
(i) the Effective Time of the Merger, or (ii) termination of the
Merger Agreement.
1.2 New Shares . Stockholder
agrees that any shares of capital stock of Company that Stockholder
purchases or with respect to which Stockholder otherwise acquires
beneficial ownership after the date of this Agreement and prior to
the Expiration Date shall be subject to the terms and conditions of
this Agreement to the same extent as if they constituted Shares on
the date hereof.
2. Voting .
2.1 Agreement to Vote Shares
. Prior to the Expiration Date, Stockholder hereby agrees to
appear, or cause the holder of record of any Shares on any
applicable record date (the “ Record Holder ”)
to appear, in person or by proxy, for the purpose of obtaining a
quorum at any annual or special meeting of the stockholders of
Company and at any adjournment thereof (a “ Meeting
”) and on every action or approval by written consent or
resolution of the stockholders of Company for the purpose of voting
on the Merger Agreement and the transactions contemplated thereby.
Prior to the Expiration Date, at every Meeting or on any action or
approval taken by written consent, Stockholder shall vote the
Shares (solely in Stockholder’s capacity as a stockholder of
the Company):
(a) in favor of adoption of the
Merger Agreement and approval of the Merger;
(b) against any action or agreement
that would result in a breach of any representation, warranty,
covenant or obligation of the Company in the Merger
Agreement;
(c) against approval or adoption of
any transaction involving (i) the sale or transfer of all or
substantially all of the capital stock of the Company, whether by
merger, consolidation or other business combination, (ii) a sale or
transfer of all or substantially all of the assets of the Company
or its subsidiaries, (iii) a reorganization, recapitalization or
liquidation of the Company or its subsidiaries, or (iv) any
amendment to the Company’s governing instruments creating any
new class of securities of the Company or otherwise affecting the
rights of any class of security as currently in effect;
and
(d) against the following actions
(other than the Merger and the transactions contemplated by the
Merger Agreement): (i) any Takeover Proposal; (ii) any change in a
majority of the members of the board of directors of the Company;
or (iii) any other action which is intended to, or could reasonably
be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect the consummation of the Merger or any of the
other transactions contemplated by the Merger Agreement or this
Stockholder Voting Agreement.
2.2 Obligations as Director
and/or Officer . If at any time prior to the Expiration Date,
Stockholder is a member of the Board of Directors of Company
(“ Director ”) or an
2
officer of Company (“ Officer
”) of Company, nothing in this Agreement shall be deemed to
limit or restrict the Director or Officer in acting in his capacity
as a Director or Officer, as the case may be, of Company and
exercising his fiduciary duties and responsibilities, it being
agreed and understood that this Agreement shall apply to the
Stockholder solely in his capacity as a stockholder of Company and
shall not apply to his actions, judgments or decisions as a
Director or Officer of Company.
3. Irrevocable Proxy .
Contemporaneously with the execution of this Agreement, Stockholder
shall execute and deliver to Parent a duly executed proxy in the
form attached hereto as Exhibit A (the “ Proxy
”) with respect to each and every Meeting or action or
approval by written consent or resolution of the Stockholders of
Company, such Proxy to cover the total number of Shares in respect
of which Stockholder is entitled to vote at any such Meeting or in
connection with any such written consent which calls for the vote
of the Stockholders to adopt or approve the Merger, the Merger
Agreement and other actions which could reasonably be expected to
facilitate the Merger.
4. Representations, Warranties
and Covenants of Stockholder . Stockholder hereby represents,
warrants and covenants to Parent as follows:
(a) Stockholder has the legal
capacity and absolute and unrestricted right, power, authority and
capacity to execute and deliver this Agreement and the Proxy and to
perform its obligations hereunder and thereunder. This Agreement
and the Proxy have been duly executed and delivered by such
Stockholder and constitute legal, valid and binding obligations of
such Stockholder, enforceable against such Stockholder in
accordance with their terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance,
injunctive relief and other equitable remedies.
(b) The execution and delivery of
this Agreement and the Proxy by such Stockholder do not, and the
performance of this Agreement and the Proxy by such Stockholder
will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to such Stockholder or by
which it or any of its properties is or may be bound or affected;
or (ii) result in or constitute (with or without no
