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EXHIBIT 2.2
EXECUTION COPY
VOTING,
SUPPORT AND REDEMPTION AGREEMENT (this “ Agreement
”) dated as of March 28, 2008, between TU HOLDINGS,
INC., a Delaware corporation (“ Parent
”), MERISEL, INC., a Delaware corporation (the “
Company
”), STONINGTON CAPITAL APPRECIATION 1994 FUND, L.P., a
Delaware limited partnership (“ Stonington
”) and PHOENIX ACQUISITION COMPANY II, L.L.C., a
Delaware limited liability company (“ Phoenix
” and, collectively with Stonington, the “
Stockholder
”).
WHEREAS
Parent, TU Merger, Inc., a Delaware corporation (“
Sub
”), and the Company propose to enter into an Agreement
and Plan of Merger dated as of the date hereof (as the same
may be amended or supplemented, the “ Merger
Agreement ”; capitalized terms used but not
defined herein shall have the meanings set forth in the Merger
Agreement);
WHEREAS
the Stockholder owns the number of shares of Company Common
Stock and Company Convertible Preferred Stock set forth
opposite its name on Schedule
A hereto (such shares of Company Common Stock and
Company Convertible Preferred Stock, together with any other
shares of capital stock of the Company acquired by the
Stockholder after the date hereof and during the term of this
Agreement, being collectively referred to herein as the
“ Subject
Shares ”); and
WHEREAS,
as a precondition to its willingness to enter into the Merger
Agreement, Parent has requested that the Stockholder enter
into this Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1.
Representations and Warranties of the Stockholder
. The Stockholder hereby represents and warrants to
Parent as of the date hereof as follows:
(a)
Authority; Execution and Delivery; Enforceability
. The Stockholder is duly organized, validly existing
and in good standing under the laws of the jurisdiction of its
formation. The Stockholder has all requisite power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and
delivery by the Stockholder of this Agreement and consummation of
the transactions contemplated hereby have been duly authorized by
all necessary action on the part of the Stockholder. The
Stockholder has duly executed and delivered this Agreement, and
this Agreement constitutes the legal, valid and binding obligation
of the Stockholder, enforceable against the Stockholder in
accordance with its terms. The execution and delivery by
the Stockholder of this Agreement do not, and the consummation of
the transactions contemplated hereby and compliance with the terms
hereof will 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, or result in the creation of any Lien upon any of the
properties or assets of the Stockholder under, (i) any provision of
any contract or agreement to which the Stockholder is a party or by
which any properties or assets of the Stockholder are bound or (ii)
subject to the filings and other matters referred to in the next
sentence, any provision of any Order or Law applicable to the
Stockholder or the properties or assets of the
Stockholder. No consent or approval of, or registration,
declaration or filing with, any Governmental Entity is required to
be obtained or made by or with respect to the Stockholder in
connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated
hereby, other than such reports, if any, under Sections 13(d) and
16 of the Exchange Act as may be required in connection with this
Agreement and the transactions contemplated hereby.
(b)
The Subject Shares . Phoenix is the record and
beneficial owner of and has good and marketable title to, the
Subject Shares, free and clear of any Liens and any other material
limitation or restriction (including any restriction on the right
to vote or otherwise dispose of the Subject Shares), other than
pursuant to this Agreement and the Merger
Agreement. Phoenix does not own, of record or
beneficially, any shares of capital stock of the Company other than
the Subject Shares. Phoenix has the sole right to vote
the Subject Shares, and none of the Subject Shares is subject to
any voting trust or other agreement, arrangement or restriction
with respect to the voting of the Subject Shares, except as
contemplated by this Agreement. Stonington is the sole
member of Phoenix and there are no outstanding subscriptions,
options, warrants, calls, convertible securities or other rights,
agreements or commitments with respect to any membership interest
in Phoenix.
(c)
Alternative Proposals . The Stockholder is not
currently engaged in any discussions or negotiations with any
Person (other than Parent and Merger Sub) regarding any Alternative
Proposal.
SECTION
2.
Representations and Warranties of Parent . Parent
hereby represents and warrants to the Stockholder as follows:
Parent is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its
formation. Parent has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate
the transactions contemplated hereby. The execution and
delivery by Parent of this Agreement and consummation of the
transactions contemplated hereby have been duly authorized by all
necessary action on the part of Parent. Parent has duly
executed and delivered this Agreement, and this Agreement
constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its
terms. The execution and delivery by Parent of this
Agreement do not, and the consummation of the transactions
contemplated hereby and compliance with the terms hereof will 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, or result in the
creation of any Lien upon any of the properties or assets of Parent
under, (i) any provision of any contract or agreement to which
Parent is a party or by which any properties or assets of Parent
are bound or (ii) subject to the filings and other matters referred
to in the next sentence, any provision of any Order or Law
applicable to Parent or the properties or assets of
Parent. No consent or approval of, or registration,
declaration or filing with, any Governmental Entity is required to
be obtained or made by or with respect to Parent in connection with
the execution, delivery and performance of this Agreement or the
consummation of the transactions contemplated hereby, other than
such reports, if any, under Sections 13(d) and 16 of the Exchange
Act as may be required in connection with this Agreement and the
transactions contemplated hereby.
SECTION
3.
Representations and Warranties of the Company
. The Company hereby represents and warrants to the
Stockholder and Parent as follows: The Company is duly organized,
validly existing and in good standing under the laws of the
jurisdiction of its formation. The Company has all
requisite corporate power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated
hereby. The execution and delivery by the Company of
this Agreement and consummation of the transactions contemplated
hereby have been duly authorized by all necessary actions on the
part of the Company. The Company has duly executed and
delivered this Agreement, and this Agreement constitutes the legal,
valid and binding obligation of the Company, enforceable against
the Company in accordance with its terms. The execution
and delivery by the Company of this Agreement do not, and the
consummation of the transactions contemplated hereby and compliance
with the terms hereof will 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, or result in the creation of any Lien upon
any of the properties or assets of the Company under, (i) any
provision of any contract or agreement to which the Company is a
party or by which any properties or assets of the Company are bound
or (ii) any provision of any Order or Law applicable to the Company
or the properties or assets of the Company. No consent
or approval of, or registration, declaration or filing with, any
Governmental Entity is required to be obtained or made by or with
respect to the Company in connection with the execution, delivery
and performance of this Agreement or the consummation of the
transactions contemplated hereby.
SECTION
4.
Covenants of the Stockholder . The Stockholder
covenants and agrees as follows:
(a)
At
any meeting of the stockholders of the Company, and at any
adjournment or postponement thereof, called to seek the Company
Stockholder Approval or in any other circumstances upon which a
vote, consent or other approval (including by written consent) with
respect to the Merger Agreement, the Merger or any other
transaction contemplated by the Merger Agreement is sought, the
Stockholder shall, including by executing a written consent
solicitation if requested by Parent, vote (or cause to be voted),
in person or by proxy, the Subject Shares in favor of (i) granting
the Company Stockholder Approval and (ii) any proposal to adjourn
any meeting of the stockholders of the Company which Parent
supports.
(b)
At
any meeting of stockholders of the Company or at any adjournment
thereof or in any other circumstances upon which the
Stockholder’s vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares
against (i) any merger agreement or merger (other than the Merger
Agreement and the Merger), share exchange, consolidation,
combi
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