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EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is made and entered into as of
February 2, 2000 by and among VA Linux Systems, Inc., a Delaware corporation
("Parent"), Xxxxxxx.Xxx, Inc., a Delaware corporation (the "Company"), and the
undersigned shareholder (the "Shareholder") of the Company.
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Atlanta
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub") and, the Company have entered into an Agreement and Plan of
Reorganization dated as of February , 2000 (the "Merger Agreement"), which
provides for the merger (the "Merger") of 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 converted into the right to receive the
consideration set forth in the Merger Agreement, all upon the terms and subject
to the conditions set forth therein.
C. Shareholder is the beneficial owner (as defined in Rule 13d-3 under the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) of the number
of shares of outstanding capital stock of the Company and other securities
convertible into, or exercisable or exchangeable for, shares of capital stock of
the Company, all as set forth on the signature page of this Agreement
(collectively, the "Shares").
D. In consideration of the execution of the Merger Agreement by Parent,
Shareholder agrees to restrict the transfer or disposition of any of the Shares,
or any other shares of capital stock of the Company acquired by Shareholder
hereafter and prior to the Expiration Date (as defined in Section 1(a) hereof),
and hereby agrees to vote the Shares and any other such shares of capital stock
of the Company so as to facilitate the consummation of the Merger.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Agreement to Retain Shares.
(a) Transfer and Encumbrance. Shareholder agrees, during the period
beginning on the date hereof and ending on the Expiration Date (as defined
below), not to transfer, sell, exchange, pledge or otherwise dispose of or
encumber (collectively, "Transfer") any of the Shares or any New Shares (as
defined in Section 1(b) hereof), or to discuss, negotiate, or make any offer or
agreement relating thereto, other than to or with Parent, in each case without
the prior written consent of Parent. Shareholder acknowledges that the intent of
the foregoing sentence is to ensure that Parent retains the right under the
Proxy (as defined in Section 4 hereof) to vote the Shares and any New Shares in
accordance with the terms of the Proxy. As used herein, the term "Expiration
Date" shall mean the termination of the Merger Agreement in accordance with its
terms.
(b) New Shares. Shareholder agrees that any shares of capital stock of the
Company that Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership after the date of this Agreement and
prior to the Expiration Date, including, without limitation, shares issued or
issuable upon the conversion, exercise or exchange, as the case may be, of all
securities held by Shareholder which are convertible into, or exercisable or
exchangeable for, shares of capital stock of the Company ("New Shares"), shall
be subject to the terms and conditions of this Agreement to the same extent as
if they constituted Shares.
2. Agreement to Vote Shares. Until the Expiration Date, at every meeting of
shareholders of the Company called with respect to any of the following, and at
every adjournment or postponement thereof, and on every action or approval by
written consent of shareholders of the Company with respect to any of the
following, Shareholder shall vote, to the extent not voted by the person(s)
appointed under the Proxy
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(as defined in Section 3 hereof) the Shares and any New Shares (to the extent
any such New Shares may be voted):
(i) in favor of approval of the Merger, the execution and delivery by
the Company of the Merger Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by the
Merger Agreement and the Proxy and any action required in furtherance
thereof;
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the Merger Agreement;
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by the Merger
Agreement): (A) any merger, consolidation, business combination, sale of
assets, reorganization or recapitalization of the Company with any party;
(B) any sale, lease or transfer of any significant part of the assets of
the Company; (C) any reorganization, recapitalization, dissolution,
liquidation or winding up of the Company; (D) any material change in the
capitalization of the Company or the Company's corporate structure; or (E)
any other action that is intended, or could reasonably be expected to,
impede, interfere with, delay, postpone, discourage or adversely affect the
Merger or any of the other transactions contemplated by the Merger
Agreement with such powers, rights and obligations as are set forth in the
Merger Agreement; and
(iv) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company, any
reclassification or recapitalization of the capital stock of the Company or
any sale of assets, change of control, or acquisition of the Company by any
other person, or any consolidation or merger of the Company with or into
any other person.
Prior to the Expiration Date, Shareholder shall not enter into any
agreement or understanding with any person to vote or give instructions in any
manner inconsistent with this Section 2.
3. Irrevocable Proxy. Subject to the terms hereof relating to the
Expiration Date, concurrently with the execution of this Agreement, Shareholder
hereby is delivering to Parent an irrevocable proxy in the form attached hereto
as Exhibit A (the "Proxy"), which is irrevocable to the fullest extent permitted
by applicable law, covering the total number of Shares and New Shares of capital
stock of the Company beneficially owned (as such term is defined in Rule 13d-3
under the Exchange Act) by Shareholder as set forth therein.
4. Representations, Warranties and Covenants of Shareholder. Shareholder
represents, warrants and covenants to Parent as follows:
(i) Shareholder is the beneficial owner of the Shares, with full power
to vote or direct the voting of the Shares for and on behalf of all
beneficial owners of the Shares.
(ii) Except as set forth in any restricted stock purchase agreement(s)
by and between the Company and the Shareholder, copies of which have been
provided or made available to Parent, as of the date hereof the Shares are,
and at all times up until the Expiration Date the Shares will be, free and
clear of any rights of first refusal, co-sale rights, security interests,
liens, pledges, claims, options, charges or other encumbrances.
(iii) Shareholder does not beneficially own any shares of capital
stock of the Company other than the Shares.
(iv) Shareholder has full power and authority to make, enter into and
carry out the terms of this Agreement, the Proxy and that certain Company
Affiliate Agreement by and between the Shareholder and Parent on even date
herewith.
5. Additional Documents. Shareholder and the Company hereby covenant and
agree to execute and deliver any additional documents reasonably necessary or
desirable to carry out the purpose and intent of this Agreement and the Merger.
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6. Consents and Waivers. Shareholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreement to which Shareholder is a party or pursuant to any rights
Shareholder may have.
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate if the Merger Agreement is terminated in accordance
with its terms.
8. Legending of Shares. If so requested by Parent, Shareholder agrees that
the Shares and any New Shares shall bear a legend stating that they are subject
to this Agreement and to an irrevocable proxy. Subject to the terms of Section 1
hereof, Shareholder agrees that Shareholder will not Transfer the Shares or any
New Shares without first having the aforementioned legend affixed to the
certificates representing the Shares or any New Shares.
9. 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 any of the
parties without the prior written consent of the other parties.
(c) Amendments and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
(d) Waiver. No waiver by any party hereto of any condition or of any breach
of any provision of this Agreement shall be effective unless in writing.
(e) Specific Performance; Injunctive Relief. The parties acknowledge that
Parent will be irreparably harmed and that there will be no adequate remedy at
law for a violation of any of the covenants or agreements of Shareholder 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, to:
VA Linux Systems, Inc.
0000 Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attn: Chief Financial Officer
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
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With a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. XxXxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
If to Shareholder:
To the address for notice set forth on the signature page hereof.
With a copy to:
Xxxxxxxx, Xxxxxxx & Xxxxxxx
A Professional Corporation
000 Xxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxxx, Esq.
Telephone No.: (000) 000-0000
Facsimile No.: (000) 000-0000
(g) Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Delaware, without giving
effect to any choice or conflict of law provision or rule (whether of the State
of Delaware or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Delaware.
(h) Attorneys' Fees and Expenses. If any action or other proceeding
relating to the enforcement of any provision of this Agreement is brought by
either party, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
(i) 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.
(j) Counterparts. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall constitute
one and the same agreement.
(k) Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Agreement.
[Remainder of Page Intentionally Left Blank]
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IN WITNESS WHEREOF, the undersigned have executed this Agreement on the
date first above written.
VA LINUX SYSTEMS, INC. SHAREHOLDER:
By:
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Name: Xxxxx X. Xxxxxxxx Signature
Title: President and Chief Executive Officer
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Print Name
XXXXXXX.XXX, INC. ------------------------------------
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By:
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Address
Name: Xxxxx Xxxxxxxx
Title: President and Chief Executive Officer
Company Capital Stock:
Common Stock:
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Company Options:
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[SIGNATURE PAGE TO VOTING AGREEMENT]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned shareholder (the "Shareholder") of Atlanta, Inc., a
Delaware corporation (the "Company"), hereby irrevocably (to the fullest extent
permitted by law) appoints Xxxxx Xxxxxxxx and Xxxx Xxxxxx, each officers of VA
Linux Systems, Inc., a Delaware corporation ("Parent"), 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 shareholder of
the Company as of the date of this Proxy are listed on the final page of this
Proxy, along with the number(s) of the share certificate(s) which represent such
Shares. Upon the undersigned's execution of this Proxy, any and all prior
proxies given by each 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 dated as of February 2, 2000 by and among Parent, the Company and the
Shareholder (the "Voting Agreement"), and is granted in consideration of Parent
entering into that certain Agreement and Plan of Reorganization dated as of
February 2, 2000 (the "Merger Agreement"), by and among Parent, Atlanta
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
Parent ("Sub") and the Company. The Merger Agreement provides for the merger of
Sub with and into the Company in accordance with its terms (the "Merger") and
Shareholder is receiving a portion of the proceeds of the Merger. As used in
this Irrevocable Proxy, 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, or (ii) the
termination of the Merger Agreement in accordance with its terms.
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, adjourned or postponed meeting of
shareholders of the Company and in every written consent in lieu of such
meeting:
(i) in favor of approval of the Merger, the execution and delivery by
the Company of the Merger Agreement and the adoption and approval of the
terms thereof and in favor of each of the other actions contemplated by the
Merger Agreement and any action required in furtherance thereof;
(ii) against approval of any proposal made in opposition to, or in
competition with, consummation of the Merger and the Merger Agreement;
(iii) against any of the following actions (other than those actions
that relate to the Merger and the transactions contemplated by the Merger
Agreement): (A) any merger, consolidation, business combination, sale of
assets, reorganization or recapitalization of the Company with any party,
(B) any sale, lease or transfer of any significant part of the assets of
the Company, (C) any reorganization, recapitalization, dissolution,
liquidation or winding up of the Company, (D) any material change in the
capitalization of the Company or the Company's corporate structure, or (E)
any other action that is intended, or could reasonably be expected to,
impede, interfere with, delay, postpone, discourage or adversely affect the
Merger or any of the other transactions contemplated by the Merger
Agreement;
(iv) in favor of waiving any notice that may have been or may be
required relating to any reorganization of the Company, any
reclassification or recapitalization of the capital stock of the
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Company or any sale of assets, change of control, or acquisition of the
Company by any other person, or any consolidation or merger of the Company
with or into any other person.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided in clauses (i), (ii), (iii) or (iv) above. The
Shareholder 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.
[remainder of page intentionally left blank; signature page follows immediately
hereafter]
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This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date (as defined in the Voting Agreement).
Dated: February ,2000
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Signature
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Print Name
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Address
Company Capital Stock:
Common Stock:
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Company Options:
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[SIGNATURE PAGE TO PROXY]
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