EXHIBIT 2.2
Exhibit A
VOTING AGREEMENT
VOTING AGREEMENT, dated as of April 24, 2006 (this "Agreement"), among the
stockholders listed on the signature page(s) hereto (collectively, the
"Stockholders" and each individually, a "Stockholder"), Manugistics Group, Inc.,
a Delaware corporation (the "Company") and JDA Software Group, Inc., a Delaware
corporation (the "Parent"). Capitalized terms used and not otherwise defined
herein shall have the respective meanings assigned to them in the Merger
Agreement referred to below.
WHEREAS, as of the date hereof, the Stockholders own of record and
beneficially (within the meaning of Rule 13d-3 of the Exchange Act) the shares
of capital stock of the Company set forth on Schedule A hereto (the "Shares");.
WHEREAS, concurrently with the execution of this Agreement, Parent and the
Company are entering into an Agreement and Plan of Merger, dated as of the date
hereof (the "Merger Agreement"), pursuant to which, upon the terms and subject
to the conditions thereof, a subsidiary of Parent will be merged with and into
the Company, and the Company will be the surviving corporation (the "Merger");
and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that the Stockholders agree, and in order
to induce Parent to enter into the Merger Agreement the Stockholders are
willing, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
and agreements contained herein, and intending to be legally bound hereby, the
parties hereby agree, severally and not jointly, as follows:
Section 1. Agreement to Vote Shares.
(a) Each Stockholder covenants and agrees that until the termination
of this Agreement in accordance with the terms hereof, such Stockholder shall
(a) when a meeting of the Company's stockholders is held, appear at such meeting
(in person or by proxy) or otherwise cause all Shares and any New Shares (as
defined below) to be counted as present thereat for the purpose of establishing
a quorum and (b) vote (or cause to be voted) the Shares and any New Shares (i)
in favor of adoption of the Merger Agreement and approval of the transactions
contemplated thereby; (ii) against the approval of any proposal made in
opposition to or in competition with the consummation of the Merger and the
Merger Agreement, (iii) against any proposal that would reasonably lead to or
result in the conditions of Parent's or Merger Sub's obligations under the
Merger Agreement not being fulfilled; (iv) against any Takeover Proposal from
any party other than Parent or an affiliate of Parent; and (v) against the
election of a group of individuals to replace a majority or more of the
individuals presently on the Board of Directors of the Company (each item set
forth in the foregoing clauses (i) through (v), a "Proposed Matter") at every
meeting of stockholders of Company called with respect to any Proposed Matter
(and at every postponement or adjournment thereof). Prior to the termination of
this Agreement, each Stockholder covenants and agrees not to enter into any
agreement or
understanding with any person to vote or give instructions in any manner
inconsistent with the terms of this Agreement. The provisions of this Section 1
shall apply to all Shares and New Shares owned by each Stockholder as of the
record date for the vote on any Proposed Matter.
(b) Each Stockholder further agrees that, until the termination of
this Agreement, (Y) such Stockholder will not, and will not permit any entity
under such Stockholder's control to, (A) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Rule 14A under
the Exchange Act) with respect to an Opposing Proposal (as defined below), (B)
initiate a stockholders' vote with respect to an Opposing Proposal or (C) become
a member of a "group" (as such term is used in Section 13(d) of the Exchange
Act) with respect to any voting securities of the Company with respect to an
Opposing Proposal. For the purposes of this Agreement, an "Opposing Proposal"
means any action or proposal described in clauses (ii) through (iv) of Section
1.
(c) New Shares shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares. "New Shares" means:
(i) any shares of capital stock or voting securities of the
Company that Stockholder purchases or with respect to which Stockholder
otherwise acquires beneficial ownership (whether through the exercise of any
options, warrants or other rights to purchase shares of Company Common Stock or
otherwise) after the date of this Agreement and prior to the termination of this
Agreement; and
(ii) any shares of capital stock or voting securities of the
Company that Stockholder becomes the beneficial owner of as a result of any
change in Company Common Stock by reason of a stock dividend, stock split,
split-up, recapitalization, reorganization, business combination, consolidation,
exchange of shares, or any similar transaction or other change in the capital
structure of the Company affecting Company Common Stock.
Section 2. Irrevocable Proxy. Each Stockholder has delivered to Parent a
duly executed proxy in the form attached hereto as Exhibit A (the "Proxy"), such
Proxy covering the issued and outstanding Shares and all issued and outstanding
New Shares in respect of which such Stockholder is the record holder and is
entitled to vote at each meeting of the stockholders of the Company (including,
without limitation, each written consent in lieu of a meeting) prior to the
termination of this Agreement. Upon the execution of this Agreement by such
Stockholder, such Stockholder hereby revokes any and all prior proxies or powers
of attorney given by such Stockholder with respect to voting of the Shares on
the matters referred to in Section 1 and agrees not to grant any subsequent
proxies or powers of attorney with respect to the voting of the Shares on the
matters referred to in Section 1 until after the Expiration Date. Each
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement and the Proxy. Each Stockholder hereby affirms that the Proxy is given
in connection with the execution of the Merger Agreement, and that such Proxy is
given to secure the performance of the duties of such Stockholder under this
Agreement. Except as otherwise provided for herein, each Stockholder hereby (i)
affirms that the Proxy is coupled with an interest and may under no
circumstances be revoked prior to the Expiration Date, (ii) ratifies and
confirms all that the Proxies appointed hereunder may lawfully do or cause to be
done by virtue hereof, and (iii) affirms that such Proxy
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is executed and intended to be irrevocable to the extent permitted by the
provisions of Section 212 of the Delaware General Corporation Law. The power of
attorney granted by each Stockholder herein is a durable power of attorney and
shall survive the dissolution, bankruptcy, death or incapacity of such
Stockholder. Notwithstanding any other provisions of this Agreement, the Proxy
granted hereunder shall automatically terminate upon the termination of this
Agreement.
Section 3. Transfer of Shares.
(a) Until this Agreement is terminated, each Stockholder covenants and
agrees that such Stockholder will not directly or indirectly (i) sell, assign,
transfer (including by merger, testamentary disposition, interspousal
disposition pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber or otherwise dispose of any of the Shares or
New Shares, (ii) deposit any of the Shares or New Shares into a voting trust or
enter into a voting agreement or arrangement with respect to the Shares or New
Shares or grant any proxy or power of attorney with respect thereto that is
inconsistent with this Agreement or (iii) enter into any contract, option,
agreement, commitment, understanding or other arrangement or undertaking with
respect to the direct or indirect sale, assignment, transfer, pledge,
encumbrance or other disposition of any Shares or New Shares (each, a
"Transfer"). Any Transfer or purported Transfer of share of Company Common Stock
in violation of the foregoing restricts shall be null and void.
(b) Each Stockholder agrees to submit to the Company contemporaneously
with or promptly following execution of this Agreement all certificates
representing the Shares and upon delivery of such certificates representing the
New Shares, as soon as possible thereafter, so that the Company may place
thereon a legend referring to the transfer restrictions set forth in this
Agreement.
(c) Permitted Transfers. Section 3(a) shall not prohibit a transfer of
Shares or New Shares by a Stockholder (i) upon the death of such Stockholder,
interspousal disposition, (ii) for tax or estate planning or charitable gift or
if such Stockholder is a partnership or limited liability company, to one or
more partners or members of such Stockholder to an affiliated corporation under
common control with such Stockholder; provided, however, that a transfer
referred to in this Section 3(c) shall be permitted only if, as a precondition
to such transfer, the transferee agrees in a writing, reasonably satisfactory in
form and substance to Parent, to be bound by the terms of this Agreement and
delivers a Proxy to Parent in substantially the form of the Proxy attached
hereto.
Section 4. Representations and Warranties of the Stockholders. Each
Stockholder on his or her own behalf hereby severally represents and warrants to
Parent with respect to such Stockholder and such Stockholder's ownership of the
Shares as follows:
(a) Ownership of Shares. The Stockholder beneficially owns all of the
Shares and rights to Shares as set forth on Schedule A hereto and has good and
marketable title to such Shares, free and clear of any claims, liens, options,
charges, proxies, voting trusts, agreements, rights, understandings,
arrangements, encumbrances or security interests. The Stockholder owns no shares
of Company Common Stock other than the Shares as set forth on Schedule A hereto.
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The Stockholder and/or its affiliates have sole voting power, without
restrictions, with respect to all of the Shares. The Stockholder's principal
residence or place of business is accurately set forth on the Stockholder's
signature page hereto.
(b) Power, Binding Agreement. The Stockholder has the legal capacity
and all requisite power and authority to enter into and perform all of his or
her obligations under this Agreement. This Agreement has been duly and validly
executed and delivered by the Stockholder and constitutes a valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms.
(c) No Conflicts. The execution and delivery of this Agreement do not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to the Stockholder, the Shares, the New Shares or any of the
Stockholder's properties or assets. Except as expressly contemplated hereby, the
Stockholder is not a party to, and the Shares are not (and the New Shares will
not be) subject to or bound in any manner by, any contract or agreement relating
to the Shares or the New Shares, including without limitation, any voting
agreement, option agreement, purchase agreement, stockholders' agreement,
partnership agreement or voting trust. Except for the expiration or termination
of the waiting period under the HSR Act and informational filings with the
Securities and Exchange Commission, no consent, approval, order or authorization
of, or registration, declaration or filing with, any court, administrative
agency or commission or other governmental authority or instrumentality,
domestic, foreign or supranational, is required by or with respect to the
Stockholder in connection with the execution and delivery of this Agreement or
the consummation by the Stockholder of the transactions contemplated hereby.
Section 5. Termination. This Agreement shall terminate upon the earlier to
occur of (a) such date and time as the Merger Agreement shall have been
terminated in accordance with its terms (b) an amendment to the Merger Agreement
in a manner that reduces the aggregate consideration to be paid to any
Stockholder upon consummation of the Merger or changes the nature of the
consideration in any way other than a change that does not change the amount of
the cash consideration, and (c) the Effective Time.
Section 6. Fiduciary Duties. Each Stockholder is signing this Agreement
solely in such Stockholder's capacity as an owner of such Stockholder's
respective Shares, and nothing herein shall prohibit, prevent or preclude such
Stockholder from taking or not taking any action in such Stockholder's capacity
as an officer or director of the Company to the extent permitted by the Merger
Agreement, or as an officer or a director of any third party.
Section 7. Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement or the
Proxy were not performed in accordance with its specific terms or were otherwise
breached. Each Stockholder agrees that, in the event of any breach or threatened
breach by such Stockholder of any covenant or obligation contained in this
Agreement or in the Proxy, Parent shall be entitled (in addition to
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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. Each Stockholder further agrees
that neither Parent nor any other Person shall be required to obtain, furnish or
post any bond or similar instrument in connection with or as a condition to
obtaining any remedy referred to in this Section 7, and each Stockholder
irrevocably waives any right such Stockholder may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
Section 8. Miscellaneous.
(a) Entire Agreement. This Agreement and the Merger Agreement
constitutes the entire agreement between the parties hereto with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between the parties with respect thereto. This Agreement
may not be amended, modified or rescinded except by an instrument in writing
signed by each of the parties hereto.
(b) Severability. If any term or other provision of this Agreement is
invalid, illegal or incapable of being enforced by any rule of law, or public
policy, all other conditions and provisions of this Agreement shall nevertheless
remain in full force and effect, provided that, upon such determination that any
term or other provision is invalid, illegal or incapable of being enforced, the
parties hereto shall modify this Agreement so as to effect the original intent
of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
(c) Governing Law. This Agreement shall be governed by and construed
in accordance with the laws of the State of Delaware without regard to the
principles of conflicts of law thereof.
(d) Counterparts. This Agreement may be executed by facsimile
signature and in multiple counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same instrument.
(e) Notices. All notices and other communications hereunder shall be
in writing and shall be deemed duly delivered (i) three business days after
being sent by registered or certified mail, return receipt requested, postage
prepaid, or (ii) one business day after being sent for next business day
delivery, fees prepaid, via a reputable nationwide overnight courier service, in
each case to the intended recipient as set forth below:
(i) if to a Stockholder to the address set forth on the
respective signature page of this Agreement;
(ii) if to Parent to:
JDA Software Group, Inc.
00000 X. 00xx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
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Attn: G. Xxxxxxx Xxxxxx
Facsimile: (000) 000-0000
with a copy to:
DLA Xxxxx Xxxxxxx Xxxx Xxxx US LLP
0000 X. XxXxx Xxxxxxxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Attn: Xxxx Xxxxxxx, Esq.
Facsimile: (000) 000-0000
(iii) if to the Company to:
Manugistics Group, Inc.
0000 Xxx Xxxx Xxxxxx
Xxxxxxxxx, XX 00000
Attn: Xxxxxx X. Xxxxx
Facsimile: (000) 000-0000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP
Park Avenue Tower
00 X. 00xx Xxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxx X. Xxxxxx, III, Esq.
Facsimile: (000) 000-0000
(f) No Third Party Beneficiaries. This Agreement is not intended, and
shall not be deemed, to confer any rights or remedies upon any person other than
the parties hereto and their respective successors and permitted assigns, to
create any agreement of employment with any person or to otherwise create any
third-party beneficiary hereto.
(g) Assignment. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement may be assigned or delegated, in
whole or in part, by operation of law or otherwise by any of the parties hereto
without the prior written consent of the other parties, and any such assignment
without such prior written consent shall be null and void, except that Parent
may assign this Agreement to any direct or indirect wholly owned subsidiary of
Parent without the consent of the Company or the Stockholders. Subject to the
preceding sentence, this Agreement shall be binding upon, inure to the benefit
of, and be enforceable by, the parties hereto and their respective successors
and permitted assigns.
(h) Interpretation. When reference is made in this Agreement to a
Section, such reference shall be to a Section of this Agreement, unless
otherwise indicated. The headings contained in this Agreement are for
convenience of reference only and shall not affect in any way the meaning or
interpretation of this Agreement. The language used in this Agreement shall be
deemed to be the language chosen by the parties hereto to express their mutual
intent, and no
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rule of strict construction shall be applied against any party. Whenever the
context may require, any pronouns used in this Agreement shall include the
corresponding masculine, feminine or neuter forms, and the singular form of
nouns and pronouns shall include the plural, and vice versa. Any reference to
any federal, state, local or foreign statute or law shall be deemed also to
refer to all rules and regulations promulgated thereunder, unless the context
requires otherwise. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation." No summary of this Agreement prepared by the parties shall
affect in any way the meaning or interpretation of this Agreement.
(i) Submission to Jurisdiction. Each of the parties to this Agreement
(i) consents to submit itself to the personal jurisdiction of any state or
federal court sitting in the State of Delaware in any action or proceeding
arising out of or relating to this Agreement or any of the transactions
contemplated by this Agreement, (ii) agrees that all claims in respect of such
action or proceeding may be heard and determined in any such court, (iii) agrees
that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court and (iv) agrees not to bring any
action or proceeding arising out of or relating to this Agreement or any of the
transactions contemplated by this Agreement in any other court. Each of the
parties hereto waives any defense of inconvenient forum to the maintenance of
any action or proceeding so brought and waives any bond, surety or other
security that might be required of any other party with respect thereto. Any
party hereto may make service on another party by sending or delivering a copy
of the process to the party to be served at the address and in the manner
provided for the giving of notices in Section 10(e). Nothing in this Section
10(i), however, shall affect the right of any party to serve legal process in
any other manner permitted by law.
(j) WAIVER OF JURY TRIAL. EACH OF PARENT, THE COMPANY AND EACH
STOCKHOLDER HEREBY IRREVOCABLY WAIVES ALL RIGHTS TO TRIAL BY JURY IN ANY ACTION,
PROCEEDING OR COUNTERCLAIM (WHETHER BASED ON CONTRACT, TORT OR OTHERWISE)
ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY OR THE ACTIONS OF PARENT, THE COMPANY OR EACH STOCKHOLDER IN THE
NEGOTIATION, ADMINISTRATION, PERFORMANCE AND ENFORCEMENT OF THIS AGREEMENT.
(k) No Survival. The representation and warranties contained in the
Agreement shall not survive the termination of this Agreement.
[Signature Pages Follow.]
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IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to
be signed individually or by its respective duly authorized officer as of the
date first written above.
MANUGISTICS GROUP, INC.
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Xxxxxx X. Xxxxx
Chief Executive Officer
JDA SOFTWARE GROUP, INC.
By: /s/ Hamish X. Xxxxxx
-------------------------------------
Hamish X. Xxxxxx
President and Chief Executive Officer
(Signature Page to Voting Agreement)
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be validly
executed by a duly authorized officer thereof as of the date first above
written.
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(Signature of Stockholder)
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(Print name of Stockholder)
Address:
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Facsimile:
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(Signature Page to Voting Agreement)
SCHEDULE A
NUMBER SHARES OF COMPANY
COMMON STOCK ISSUABLE UPON
EXERCISE OF OUTSTANDING
NUMBER OF SHARES OF OPTIONS WARRANTS OR OTHER
STOCKHOLDER CERTIFICATE NUMBER COMMON STOCK OWNED RIGHTS
----------- ------------------ ------------------- --------------------------
EXHIBIT A
IRREVOCABLE PROXY
TO VOTE STOCK OF
MANUGISTICS GROUP, INC.
The undersigned stockholder of Manugistics Group, Inc., a Delaware corporation (
the "Company"), hereby irrevocably appoints the members of the Board of
Directors of JDA Software Group, Inc., a Delaware corporation ("Parent"), and
each of them, or any other designee of Parent, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
re-substitution, to vote and exercise all voting rights (to the full extent that
the undersigned is entitled to do so) with respect to all of the issued and
outstanding shares of capital stock of the Company that now are owned of record
by the undersigned (collectively, the "Shares") in accordance with the terms of
this Irrevocable Proxy. The Shares beneficially owned by the undersigned
stockholder of the Company as of the date of this Irrevocable Proxy are listed
on the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to the voting of any Shares on the matters referred to in the third full
paragraph of this Irrevocable Proxy are hereby revoked and the undersigned
agrees not to grant any subsequent proxies with respect to such matters until
after the Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable, is coupled with an interest, and is
granted in consideration of Parent entering into that certain Agreement and Plan
of Merger (the "Merger Agreement") by and among Parent, Xxxxxxx Acquisition
Corp., a Delaware corporation and a wholly owned subsidiary of Parent ("Merger
Sub"), and the Company, which Merger Agreement provides for the merger of Merger
Sub with and into the Company (the "Merger"). As used herein, the term
"Expiration Date" shall mean 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) the date of termination of the Merger Agreement.
Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger 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 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 the stockholders of the Company and in
every written consent in lieu of such meeting:
(a) in favor of adoption of the Merger Agreement and approval of the
transactions contemplated thereby;
(b) against the approval of any proposal made in opposition to or in
competition with the consummation of the Merger and the Merger Agreement;
Exhibit A-1
(c) against any proposal that would reasonably lead to, result in the
conditions of Parent's or Merger Sub's obligations under the Merger Agreement
not being fulfilled;
(d) against any Takeover Proposal from any party other than Parent or
an affiliate of Parent; and
(e) Against the election of a group of individuals to replace a
majority or more of the individuals presently on the Board of Directors of the
Company.
The attorneys and proxies named above may not exercise this Irrevocable Proxy on
any other matter except as provided above. The undersigned stockholder may vote
the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
(Remainder of page intentionally left blank)
Exhibit A-2
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
Dated: April ___, 2006
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(Signature of Stockholder)
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(Print name of Stockholder)
_____________ shares of Company Common
Stock owned on the date hereof:
____________ shares of Company Common
Stock issuable upon the exercise of
outstanding options, warrants or other
rights.
(Signature Page to Irrevocable Proxy)
