Exhibit 10.1
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of June 27,
2005, by and among Sun Microsystems, Inc., a Delaware corporation
(“ Parent ”), the undersigned stockholder
(“ Stockholder ”) of
SeeBeyond Technology Corporation, a Delaware corporation (the
“ Company ”) and, solely for the purposes of
Sections 8 , 10, 11 and 14 hereof, the
Company.
RECITALS
A. Concurrently with the execution
of this Agreement, Parent, Big Bear Acquisition Corporation, a
Delaware corporation and a wholly owned subsidiary of Parent
(“ Merger Sub ”), and the Company have entered
into an Agreement and Plan of Merger (the “ Merger
Agreement ”), which provides for the merger (the “
Merger ”) of Merger Sub with and into the
Company.
B. Pursuant to the Merger, all of
the issued and outstanding shares of capital stock of the Company
will be canceled and converted into the right to receive the
consideration set forth in the Merger Agreement upon the terms and
subject to the conditions set forth in the Merger
Agreement.
C. As of the date hereof,
Stockholder Beneficially Owns (as defined below) the number of
Shares (as defined below) of capital stock of the Company as set
forth on the signature page of this Agreement.
D. In order to induce Parent and
Merger Sub to execute the Merger Agreement, Stockholder desires to
restrict the transfer or disposition of, and desires to vote, the
Shares as provided in this Agreement, and the execution and
delivery of this Agreement and the Proxy (as defined below) is a
material condition to Parent’s willingness to enter into the
Merger Agreement.
NOW, THEREFORE, the parties hereto
hereby agree as follows:
1. Certain Definitions
. Capitalized terms not defined herein shall have the meanings
ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) A Person shall be deemed to
“ Beneficially Own ” a security if such Person
has “beneficial ownership” of such securities (as
determined pursuant to Rule 13d-3 under the Securities Exchange Act
of 1934, as amended).
(b) “ Constructive Sale
” means, with respect to any security, a short sale or
entering into or acquiring an offsetting derivative contract with
respect to such security, entering into or acquiring a futures or
forward contract to deliver such security or entering into any
other hedging or other derivative transaction that has the effect
of materially changing the economic benefits and risks of ownership
of such security.
(c) “ Expiration Date
” means the earlier to occur of (i) such date and time as the
Merger shall become effective in accordance with the terms and
provisions of the Merger Agreement; and (ii) 5:00 p.m. Los Angeles
Time on such date that is six months after the Merger Agreement
shall have been validly terminated pursuant to Article VII
thereof.
(d) “ Options ”
means: (i) all securities Beneficially Owned by Stockholder as of
the date of this Agreement that are convertible into, or
exercisable or exchangeable for, shares of capital stock of the
Company, including, without limitation, options, warrants and other
rights to acquire shares of Company Common Stock or other shares of
capital stock of the Company; and (ii) all securities of which
Stockholder acquires Beneficial Ownership during the period from
the date of this Agreement through and including the Expiration
Date that are convertible into, or exercisable or exchangeable for,
shares of capital stock of the Company, including, without
limitation, options, warrants and other rights to acquire shares of
Company Common Stock or other shares of capital stock of the
Company.
(e) “ Person ”
means any (i) individual, (ii) corporation, limited liability
company, partnership or other entity, or (iii) Governmental
entity.
(f) “ Shares ”
means: (i) all shares of capital stock of the Company Beneficially
Owned by Stockholder as of the date of this Agreement; and (ii) all
shares of capital stock of the Company of which Stockholder
acquires Beneficial Ownership during the period from the date of
this Agreement through and including the Expiration Date,
including, without limitation, in each case, shares issued upon the
conversion, exercise or exchange of Options; provided that
from and after the date and time that the Merger Agreement shall
have been validly terminated pursuant to Article VII
thereof, the number of Shares subject to this Agreement shall be
16,423,245 shares of Company Common Stock and all other shares of
capital stock of the Company Beneficially Owned by the Stockholder
shall be no longer subject to this Agreement (including, without
limitation, with respect to any restrictions, voting obligations or
representations and warranties); provided , further that the
number of Shares subject to this Agreement (including for the
purposes of the preceding proviso) shall from time to time be
reduced by that number of Shares equal to the number of shares of
Company Common Stock that
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Parent or any of its Subsidiaries Beneficially
Owns as of the date Parent or such Subsidiary acquires such
Beneficial Ownership.
(g) “ Transfer ”
means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, pledge, hypothecation, gift,
placement in trust, Constructive Sale or other disposition of such
security (excluding transfers by testamentary or intestate
succession, of any right, title or interest in such security
(including, without limitation, any right or power to vote to which
the holder thereof may be entitled, whether such right or power is
granted by proxy or otherwise) or of the record or beneficial
ownership of such security, and each agreement, arrangement or
understanding, whether or not in writing, to effect any of the
foregoing, in each case, excluding any Transfer pursuant to a court
order.
2. No Transfer of Shares or
Options . Stockholder agrees that, at all times during the
period beginning on the date hereof and ending on the Expiration
Date, Stockholder shall not Transfer (or cause or permit any
Transfer of) any Shares or Options, or make any agreement relating
thereto, in each case, without the prior written consent of Parent;
provided , however , that the Stockholder may,
without consent of Parent, Transfer his Shares to members of his
family or a trust all of the beneficiaries of which are family
members if concurrently with such Transfer the transferee agrees to
be bound by the terms of this Agreement pursuant to a written
instrument reasonably satisfactory to the Parent; provided
further that any exercise of Options will not be considered a
Transfer of such Options. Stockholder agrees that any Transfer in
violation of this Agreement shall be void and of no force or
effect.
3. No Transfer of Voting
Rights . Stockholder agrees that, during the period from
the date of this Agreement through and including the Expiration
Date, Stockholder shall not deposit (or cause or permit the deposit
of) any Shares or Options in a voting trust or grant (or cause or
permit the grant of) any proxy or enter into (or cause or permit
the entry into) any voting agreement or similar agreement with
respect to any of the Shares or Options other than as contemplated
by this Agreement.
4. Agreement to Vote
Shares .
(a) Until the Expiration Date, at
every meeting of stockholders of the Company, however called, at
every adjournment or postponement thereof, and on every action or
approval by written consent of stockholders of the Company with
respect to any of the following, Stockholder shall vote, to the
extent not voted by the Person(s) appointed under the Proxy (as
defined below), all of the Shares or cause the Shares to be
voted:
(i) in favor of (1) adoption and
approval of the Merger Agreement, the Merger and all other actions
and transactions contemplated by the Merger Agreement or the Proxy
and (2) any other actions presented to holders of shares of capital
stock of the Company that are necessary, as determined by Parent
and the Company, in furtherance of the Merger Agreement, the Merger
and the other actions and transactions contemplated by the Merger
Agreement or the Proxy;
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(ii) against (1) approval of any
proposal made in opposition to, or in competition with, the Merger
Agreement or consummation of the Merger and the other transactions
contemplated by the Merger Agreement or the Proxy, and (2) any
action or agreement that would result in a breach of any
representation, warranty, covenant, agreement or other obligation
of the Company in the Merger Agreement; and
(iii) against (1) any merger
agreement or merger (other than the Merger Agreement and the
Merger), Acquisition Proposal, consolidation, business combination,
reorganization, recapitalization, dissolution, liquidation or
winding up of the Company or any Subsidiary of the Company, (2) any
sale, lease, license or transfer of any significant part of the
assets of the Company or any Subsidiary of the Company, except if
such action is permitted under the Merger Agreement, (C) any
material change in the capitalization of the Company or any
Subsidiary of the Company, or the corporate structure of the
Company or any Subsidiary of the Company, except if such action is
permitted under the Merger Agreement, or (D) any amendment of the
Company’s or any Subsidiary’s charter documents or any
other action that is intended, or could reasonably be expected, to,
in any manner impede, frustrate, prevent, nullify, interfere with,
delay, postpone, discourage or otherwise adversely affect the
Merger Agreement, the Merger or any of the other transactions
contemplated by the Merger Agreement.
(b) Stockholder shall not enter into
any agreement or understanding with any person to vote or give
instructions in any manner inconsistent with this Section 4
.
5. Irrevocable Proxy .
Concurrently with the execution of this Agreement, Stockholder
agrees to deliver to Parent an irrevocable proxy in the form
attached hereto as Exhibit A (the “ Proxy
”), which shall be irrevocable to the fullest extent
permitted by applicable law, covering all Shares.
6. Representations, Warranties
and Covenants of Stockholder . Stockholder represents,
warrants and covenants to Parent as follows:
(i) Except as otherwise permitted by
this Agreement, Stockholder is the Beneficial Owner of the Shares
and the Options indicated on the signature page of this
Agreement.
(ii) Stockholder does not
Beneficially Own any shares of capital stock of the Company or any
securities convertible into, or exchangeable or exercisable for,
shares of capital stock of the Company, other than the Shares and
Options set forth on the signature page hereto.
(iii) Stockholder has the full power
to vote or direct the voting of the Shares for and on behalf of all
beneficial owners of the Shares.
(iv) The Shares are, and at all
times up to and including the Expiration Date the Shares will be,
Beneficially Owned by Stockholder, free and clear of any rights of
first
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refusal, co-sale rights, security interests,
liens, pledges, claims, options, charges, proxies, voting trusts or
agreements, binding understandings or arrangement, or any other
encumbrances of any kind or nature (“ Encumbrances
”), excluding encumbrances created by this Agreement and
encumbrances that do not limit or impair the Stockholder’s
ability to perform his obligations under this Agreement.
(v) The execution and delivery of
this Agreement and the Proxy by Stockholder do not, and
Stockholder’s performance of its obligations under this
Agreement will not conflict with or violate or require any consent,
approval or notice under, any order, decree, judgment, statute,
law, rule, regulation or agreement applicable to Stockholder or by
which Stockholder or any of Stockholder’s properties or
assets, including, without limitation, the Shares and Options, is
bound.
(vi) Stockholder has full power and
authority to make, enter into and carry out the terms of this
Agreement, the Proxy and any other related agreements to which
Stockholder is a party.
(vii) Stockholder agrees that it
will not bring, commence, institute, maintain, prosecute,
participate in or voluntarily aid any action, claim, suit or cause
of action, in law or in equity, in any court or before any
governmental entity, which (a) challenges the validity of or seeks
to enjoin the operation of any provision of this Agreement or the
Proxy or (b) alleges that the execution and delivery of this
Agreement or the Proxy by Stockholder, either alone or together
with the other voting agreements and proxies to be delivered in
connection with the execution of the Merger Agreement, or the
approval of the Merger Agreement by the board of directors of the
Company, breaches any fiduciary duty of the board of directors of
the Company or any member thereof.
(viii) Stockholder hereby agrees and
covenants that, as soon as practicable after the date hereof,
Stockholder shall take any and all actions reasonably necessary to
suspend (until the Expiration Date) or terminate its participation
in any and all plans adopted pursuant to Rule 10b5-1 promulgated
under the Securities Exchange Act of 1934, as amended, to which
such Stockholder is a party that relate to the Shares.
7. Additional
Documents . Stockholder and the Company hereby covenant and
agree to execute and deliver any additional documents and
take
