Exhibit 2.2
VOTING AGREEMENT
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VOTING AGREEMENT, dated as of April 12, 2004 (this "Agreement"), by
and among Pitney Xxxxx Inc., a Delaware corporation ("Parent"), Germanium
Acquisition Corporation, a Delaware corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), and Xxxxxx X. Xxxxx (the "Stockholder").
W I T N E S S E T H:
WHEREAS, simultaneously with the execution of this Agreement,
Parent, Merger Sub and Group 1 Software, Inc., a Delaware corporation (the
"Company"), have entered into that certain Agreement and Plan of Merger (the
"Merger Agreement"), pursuant to which Merger Sub shall be merged with and into
the Company (the "Merger"), upon the terms and subject to the conditions set
forth in the Merger Agreement;
WHEREAS, as of the date hereof, the Stockholder is the record and
beneficial owner of the number of shares of Common Stock, par value $0.50 per
share, of the Company (the "Common Stock"), the other options and rights to
purchase shares of Common Stock and any other shares of voting capital stock of
the Company, listed opposite the Stockholder's name on Schedule 1 (the "Existing
Shares"); and
WHEREAS, as a condition to the willingness of Parent and Merger Sub
to enter into the Merger Agreement, each of Parent and Merger Sub has required
that the Stockholder agree, and in order to induce Parent and Merger Sub to
enter into the Merger Agreement, the Stockholder has agreed, to enter into this
Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
promises, representations, warranties, covenants and agreements contained herein
and in the Merger Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined
herein shall have the respective meanings ascribed to them in the Merger
Agreement. In addition, for purposes of this Agreement:
"Affiliate" means, when used with respect to any Person, any other
Person directly or indirectly through one or more intermediaries controlling,
controlled by, or under common control with such Person. As used in the
definition of "Affiliate," the term "control" (including the terms "controlled
by" and "under common control with") means the possession, directly or
indirectly, of the power to direct or cause the direction of the management or
policies of such Person, whether through the ownership of voting securities, by
contract or otherwise.
"Beneficially Own" or "Beneficial Ownership" with respect to any
securities means having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement, arrangement or understanding, whether or not in writing. Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all Affiliates of such Person and all other Persons with whom such Person would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act and
the rules promulgated thereunder.
"Business Day" shall have the meaning given to such term in Rule
14d-1(g)(3) under the Exchange Act.
"Exchange Act" means the Securities Exchange Act of 1934 and the
rules and regulations promulgated thereunder, as amended.
"Governmental Entity" means any foreign, federal, state, municipal
or other court, administrative agency, commission or other governmental or
regulatory body or authority or instrumentality or political subdivision,
including tribal bodies, or any official thereof.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, encumbrance, lien (statutory or otherwise) or preference, priority,
right or other security interest or preferential arrangement of any kind or
nature whatsoever, other than Liens created by this Agreement.
"Owned Shares" means, with respect to the Stockholder, the Existing
Shares, whether Beneficially Owned or held of record, by the Stockholder on the
date hereof or any shares of Common Stock or other voting capital stock of the
Company which may hereafter be acquired by the Stockholder, whether upon the
exercise of warrants, Options, conversion of convertible securities or
otherwise.
"Options" means, with respect to the Stockholder, the options to
acquire shares of Common Stock now owned or which may hereafter be acquired by
the Stockholder.
"Person" or "person" means any natural person, firm, corporation,
business trust, joint venture, joint stock company, incorporated or
unincorporated association, company, partnership, limited liability company or
other entity, or any Governmental Entity, or any agency or political subdivision
thereof, and shall include any successor (by merger or otherwise) of such
entity.
"Representative" means, with respect to any Person, such Person's
officers, directors, employees, agents and representatives (including any
investment banker, financial advisor, accountant, attorney, agent, consultant,
representative or expert retained by or acting on behalf of such Person or its
subsidiaries).
"Transfer" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb, "Transfer"
shall have a correlative meaning.
2. Voting of Owned Shares. During the period commencing on the date
hereof and continuing until the termination of this Agreement in accordance with
Section 9 hereof, the Stockholder hereby agrees as follows:
(a) Attendance at Meetings. At any annual or special meeting
of the stockholders of the Company (including any adjournment or postponement
thereof), however called, or in connection with any written consent of the
stockholders of the Company, at which or in which matters relating to the
Merger, the Merger Agreement or any transaction contemplated thereby are
considered, the Stockholder shall appear, or cause the holder of record on any
applicable record date with respect to any Owned Shares of the Stockholder (the
"Record Holder") to appear, at each such meeting, in person or by proxy, or
otherwise cause the Owned Shares to be counted as present thereat for the
purposes of establishing a quorum.
(b) Voting. At any meeting of the stockholders of the Company
(including any adjournment or postponement thereof), however called, and in any
action by consent of the stockholders of the Company, the Stockholder shall
vote, or cause the Record Holder to vote, the Owned Shares (to the extent such
Person also has the right to vote such Owned Shares) of the Stockholder: (i) in
favor of the Merger, the Merger Agreement (as amended from time to time) and the
transactions contemplated by the Merger Agreement and (ii) against any proposal
for any extraordinary corporate transaction, such as a recapitalization,
dissolution, liquidation, or sale of assets of the Company or any merger,
consolidation or other business combination (other than the Merger) between the
Company and any Person (other than Parent or a Subsidiary of Parent) or any
other action or agreement that is intended or which reasonably could be expected
to impede, interfere with, delay, postpone or materially adversely affect the
Merger and the transactions contemplated by the Merger Agreement.
(c) No Ownership Interest. Nothing contained in this Agreement
shall be deemed to vest in Parent or Merger Sub any direct or indirect ownership
or incidence of ownership of, or with respect to, any Owned Shares. All rights,
ownership and economic benefits of and relating to the Owned Shares shall remain
vested in and belong to the Stockholder, and Parent and Merger Sub shall have no
authority to manage, direct, superintend, restrict, regulate, govern, or
administer any of the policies or operations of the Company or exercise any
power or authority to direct the Stockholder in the voting of any of the Owned
Shares, except as otherwise provided herein, or in the performance of the
Stockholder's duties or responsibilities as a stockholder of the Company.
3. Acknowledgment. The Stockholder hereby acknowledges the receipt
and his review of a copy of the Merger Agreement.
4. Representations and Warranties of the Stockholder. The
Stockholder hereby represents and warrants to Parent and Merger Sub, as follows:
(a) Authorization; Validity of Agreement; Necessary Action.
The Stockholder has the legal capacity to execute and deliver this Agreement and
to perform the Stockholder's obligations hereunder. This Agreement has been duly
executed and delivered by the Stockholder and, assuming this Agreement
constitutes a legal, valid and binding obligation of Parent and Merger Sub,
constitutes a legal, valid and binding obligation of the Stockholder,
enforceable against it in accordance with its terms, subject to applicable
bankruptcy, insolvency, moratorium or other laws relating to or affecting the
rights and remedies of creditors generally and to general principles of equity
(regardless of whether considered in a proceeding in equity or at law).
(b) No Conflict. Neither of the execution and delivery of this
Agreement by the Stockholder nor compliance by the Stockholder with any of the
provisions hereof shall (i) result in a violation or breach of, or constitute
(with or without notice or lapse of time or both) a default (or give rise to any
third party right of termination, cancellation, material modification or
acceleration) under any of the terms, conditions or provisions of any note, loan
agreement, bond, mortgage, indenture, license, contract, commitment, lease,
permit, franchise, arrangement, understanding, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of his properties or assets (including the Owned Shares) may
be bound, or (ii) violate any order, writ, injunction, decree, judgment, law,
statute, rule, regulation or administrative or arbitral order applicable to the
Stockholder or any of his properties or assets, excluding from the foregoing
such violations, breaches or defaults which has not had or would not reasonably
be expected to have, individually or in the aggregate, a material adverse effect
on the Stockholder or which would not materially impair or delay the performance
by the Stockholder of his obligations under this Agreement.
(c) No Consents or Approvals. The execution and delivery of
this Agreement by the Stockholder does not, and the performance of this
Agreement by the Stockholder shall not, require any consent, approval,
authorization or permit of, or filing with or notification to, any arbitrator or
any Governmental Entity, governmental agency or official, except for applicable
requirements, if any, of the Exchange Act, and except where the failure to
obtain such consents, approvals, authorizations or permits, or to make such
filings or notifications has not had or would not reasonably be expected to
have, individually or in the aggregate, a material adverse effect on the
Stockholder or which would not materially impair or delay the performance by the
Stockholder of his obligations under this Agreement.
(d) Title to the Owned Shares. The Stockholder's Existing
Shares are, and all of his Owned Shares from the date hereof through and on the
Closing Date will be, owned beneficially or held of record by the Stockholder
(subject to any dispositions of Owned Shares permitted by Section 5(b) hereof).
As of the date hereof, such Stockholder's Existing Shares constitute all of the
shares of Common Stock owned of record or beneficially by the Stockholder. All
of the Stockholder's Existing Shares are issued and outstanding, and, except as
set forth on the signature pages hereto, the Stockholder does not own, of record
or beneficially, any warrants, options or other rights to acquire any shares of
Common Stock or any other capital stock of the Company. The Stockholder has sole
voting power, sole power of disposition, sole power to issue instructions with
respect to the matters set forth in Section 1 hereof, and sole power to agree to
all of the matters set forth in this Agreement, in each case with respect to all
of the Stockholder's Existing Shares and will have sole voting power, sole power
of disposition, sole power to issue instructions with respect to the matters set
forth in Section 1 hereof, and sole power to agree to all of the matters set
forth in this Agreement, in each case with respect to all of such Stockholder's
Owned Shares on the Closing Date (subject to any dispositions of Shares
permitted by Section 5(b) hereof), with no limitations, qualifications or
restrictions on such rights, subject to applicable federal securities laws and
the terms of this Agreement. The Stockholder owns the Owned Shares (with the
exception of the Owned Shares which are not owned by the Stockholder, but for
which the Stockholder exercises relevant voting power), free and clear of all
Liens.
5. Covenants.
(a) No Inconsistent Agreements. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement, it shall
not enter into any agreement, arrangement or understanding with, or grant a
proxy or power of attorney to, any Person (other than Parent or Merger Sub) with
respect to the Owned Shares which would prevent the Stockholder from complying
with his obligations under this Agreement.
(b) Restriction on Transfer; Proxies. Except as otherwise
agreed to by Parent in writing, the Stockholder hereby covenants and agrees that
from the date hereof through and including the date of approval of the Merger
Agreement and the transactions contemplated by the Merger Agreement by the
Company's stockholders, or until this Agreement is terminated earlier in
accordance with Section 8 hereof, the Stockholder shall not, directly or
indirectly: (i) Transfer (whether by operation of law, by agreement or
otherwise) to any Person all or any portion of the Owned Shares; or (ii) grant
any proxies or powers of attorney (other than to Parent or Merger Sub) with
respect to the Owned Shares or deposit any Owned Shares into a voting trust or
enter into a voting agreement, understanding or arrangement with respect to such
Owned Shares. Notwithstanding the foregoing, the Stockholder may Transfer any or
all of his Owned Shares to one or more Persons; provided, that prior to
effecting such Transfer, each such Person shall agree in writing to be bound by
the terms and conditions of this Agreement pursuant to an instrument, in form
and substance reasonably satisfactory to Parent and Merger Sub.
(c) No Solicitation. From the date hereof until termination of
this Agreement in accordance with its terms, the Stockholder shall not, directly
or indirectly, (A) encourage, solicit or initiate any proposal or offer with
respect to an Acquisition Proposal or (B) participate in any discussions or
negotiations with, or provide any information to, or otherwise take any other
action to assist or facilitate any Person or group (other than Parent or Merger
Sub or any Affiliate, associate or Representative of Parent or Merger Sub)
concerning any Acquisition Proposal. Notwithstanding the foregoing, the
Stockholder or any of his Representatives may take any such actions in the
Stockholder's or any of his Representatives' capacity as a director or officer
of the Company to the extent permitted pursuant to and in accordance with the
terms of the Merger Agreement.
(d) Notification. The Stockholder hereby agrees to notify
Parent promptly of the number of any additional shares of Common Stock and the
number and type of any other shares of capital stock acquired by it, if any,
after the date hereof.
6. Stop Transfer. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Owned Shares, unless such
transfer is made in compliance with this Agreement.
7. Further Assurances. From time to time, at Merger Sub's or
Parent's reasonable request and without further consideration, the Stockholder
agrees that he shall use his reasonable best efforts to execute and deliver such
additional documents and take all such further lawful action as Parent may
reasonably request in connection with the performance of the Stockholder's
obligations under this Agreement.
8. Termination. This Agreement, and all rights and obligations of
the parties hereunder, shall terminate upon the earlier to occur of (i) the date
upon which the Merger Agreement is terminated in accordance with its terms or
(ii) the consummation of the Merger.
9. Miscellaneous.
(a) Entire Agreement. This Agreement constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof.
(b) Costs and Expenses. All costs and expenses incurred in
connection with this Agreement and the transactions contemplated hereby shall be
paid by the party incurring such expenses.
(c) Assignment. This Agreement and all of the provisions
hereof shall be binding upon and inure to the benefit of the parties and their
respective successors, personal or legal representatives, executors,
administrators, heirs, distributees, devisees, legatees and permitted assigns,
but neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by either party (whether by operation of law or
otherwise) without the prior written consent of the other party; provided, that
Parent and Merger Sub may assign their respective rights and obligations
hereunder to any direct or indirect Subsidiary of Parent which is an assignee of
such parties' rights and obligations under the Merger Agreement, but no such
assignment shall relieve Parent or Merger Sub, as the case may be, of its
obligations hereunder. Nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
(d) Amendments; Waiver. This Agreement may not be amended,
changed, supplemented or otherwise modified or terminated, except upon the
execution and delivery of a written agreement executed by each of the parties
hereto. The parties may waive compliance by the other parties hereto with any
representation, agreement or condition otherwise required to be complied with by
such other party hereunder, but any such waiver shall be effective only if in
writing executed by the waiving party.
(e) Notice. All notices and other communications hereunder
shall be in writing and shall be deemed given upon (i) transmitter's
confirmation of a receipt of a facsimile transmission, (ii) confirmed delivery
by a standard overnight carrier or when delivered by hand or (iii) the
expiration of five (5) Business Days after the day when mailed by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
If to Parent or Merger Sub: Pitney Xxxxx Inc.
Xxx Xxxxxxxx Xxxx XXX 65-15
Stamford, Connecticut 06926-0700
Attention: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Copy to: Pitney Xxxxx, Inc.
Xxx Xxxxxxxx Xxxx XXX 65-24
Stamford, CT 06926-0700
Attention: Senior Vice President
and General Counsel
Facsimile: (000) 000-0000
and a copy to: Xxxx, Weiss, Rifkind, Xxxxxxx &
Xxxxxxxx
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000-0000
Attention: Xxxxxxx X. Xxxx, Esq.
Facsimile: (000) 000-0000
If to the Xxxxxx X. Xxxxx
Stockholder: Group 1 Software, Inc.
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxx, XX 00000-0000
Copy to: Cadwalader, Xxxxxxxxxx & Xxxx LLP
000 Xxxxxx Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
or to such other address or facsimile number as the Person to whom notice is
given shall have previously furnished to the others in writing in the manner set
forth above.
(f) Severability. Any provision of this Agreement which is
prohibited or unenforceable in any jurisdiction shall, as to such jurisdiction,
be ineffective to the extent of such prohibition or unenforceability without
affecting the validity or enforceability of the remaining provisions hereof. Any
such prohibition or unenforceability in any jurisdiction shall not invalidate or
render unenforceable such provision in any other jurisdiction. If any provision
of this Agreement is so broad as to be unenforceable, the provision shall be
interpreted to be only so broad as is enforceable.
(g) Specific Performance. Each of the parties hereto
acknowledges and agrees that in the event of any breach of this Agreement, each
non-breaching party would be irreparably and immediately harmed and could not be
made whole by monetary damages. It is accordingly agreed that the parties hereto
(a) will waive, in any action for specific performance, the defense of adequacy
of a remedy at law and (b) shall be entitled, in addition to any other remedy to
which they may be entitled at law or in equity, to compel specific performance
of this Agreement.
(h) Remedies. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party. The failure of any party hereto to
exercise any right, power or remedy provided under this Agreement or otherwise
available in respect hereof at law or in equity, or to insist upon compliance by
any other party hereto with his or its obligations hereunder, and any custom or
practice of the parties at variance with the terms hereof, shall not constitute
a waiver by such party of his or its right to exercise any such or other right,
power or remedy or to demand such compliance.
(i) Directors' Fiduciary Duties. The Stockholder makes no
agreement or undertaking as a director or officer of the Company. The
Stockholder signs solely in his capacity as a record and beneficial owner of the
Owned Shares and nothing herein shall limit or affect in any way any actions
taken in his capacity as an officer or director. Notwithstanding anything herein
to the contrary, nothing set forth herein shall in any way restrict any
director, officer or employee in the exercise of his fiduciary or other duties
as a director, officer or employee of the Company.
(j) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware without giving
effect to the principles of conflicts of law thereof.
(k) JURISDICTION. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY AGREES THAT ANY LEGAL ACTION OR PROCEEDING ARISING OUT OF OR
RELATING TO THIS AGREEMENT OR ANY AGREEMENTS OR TRANSACTIONS CONTEMPLATED HEREBY
SHALL BE BROUGHT IN THE COURTS OF THE STATE OF DELAWARE OR THE UNITED STATES OF
AMERICA FOR THE DISTRICT OF DELAWARE AND HEREBY EXPRESSLY SUBMITS TO THE
PERSONAL JURISDICTION AND VENUE OF SUCH COURTS FOR THE PURPOSES THEREOF AND
EXPRESSLY WAIVES ANY CLAIM OF IMPROPER VENUE AND ANY CLAIM THAT SUCH COURTS ARE
AN INCONVENIENT FORUM.
(l) WAIVER OF JURY TRIAL. EACH PARTY TO THIS AGREEMENT HEREBY
IRREVOCABLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY LAW, 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 ANY OF THE
TRANSACTIONS CONTEMPLATED HEREBY.
(m) Headings; Interpretation. The descriptive headings used
herein are inserted for convenience of reference only and are not intended to be
part of or to affect the meaning or interpretation of this Agreement. Whenever
the context may require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. "Include," "includes," and "including" shall be
deemed to be followed by "without limitation" whether or not they are in fact
followed by such words or words of like import.
(n) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
IN WITNESS WHEREOF, Parent, Merger Sub and the Stockholder have
caused this Agreement to be duly executed as of the day and year first above
written.
PITNEY XXXXX INC.
By: /s/ Xxxxxxx X. Xxxxxxx
--------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Executive VP & Group
President--Global Enterprise Solutions
GERMANIUM ACQUISITION CORPORATION
By: /s/ Leslie Abi-Karam
--------------------------------------
Name: Leslie Abi-Karam
Title: President
/s/ Xxxxxx X. Xxxxx
------------------------------------------
Xxxxxx X. Xxxxx
Schedule 1
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Number of
Existing Number of
Name of Stockholder Shares Options owned
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Xxxxxx X. Xxxxx 599,703 1,188,433
