EXHIBIT 2.2
FORM OF VOTING
AGREEMENT
THIS VOTING AGREEMENT (this “
Agreement ”) is made and entered into as of May 9,
2005, by and among Sun Microsystems, Inc., a Delaware corporation
(“ Parent ”), Tarantella, Inc., a California
corporation (the “ Company ”), and the
undersigned shareholder (“ Shareholder ”) of the
Company.
RECITALS
A. Concurrently with the execution
of this Agreement, Parent, Merger Sub, a California 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, all upon the terms
and subject to the conditions set forth in the Merger
Agreement.
C. As of the date hereof,
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.
D. In order to induce Parent to
execute the Merger Agreement, Shareholder desires 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 desires to vote the Shares and any other such shares
of capital stock of the Company so as to facilitate the
consummation of the Merger. The execution and delivery of this
Agreement and of the attached form of proxy 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,
directly or indirectly, through any contract, arrangement,
understanding, relationship, or otherwise, has or shares: (i)
voting power, which includes the power to vote, or to direct the
voting of, such security; and/or (ii) investment power, which
includes the power to dispose, or to direct the disposition of,
such security.
(b) “ Constructive Sale
” shall mean, with respect to any security, a short sale with
respect to such security, 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.
(c) “ 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) such date and time
as the Merger Agreement shall have been validly terminated pursuant
to Article VII thereof.
(d) “ Options ”
shall mean: (i) all securities Beneficially Owned by Shareholder as
of the date of this Agreement that are convertible into, or
exercisable or exchangeable for, shares of capital stock of the
Company, including options, warrants and other rights to acquire
shares of Company Common Stock or other shares of capital stock of
the Company; and (ii) all additional securities of which
Shareholder acquires Beneficial Ownership during the period from
the date of this Agreement through the Expiration Date that are
convertible into, or exercisable or exchangeable for, shares of
capital stock of the Company, including options, warrants and other
rights to acquire shares of Company Common Stock or other shares of
capital stock of the Company.
(e) “ Person ”
shall mean any (i) individual, (ii) corporation, limited liability
company, partnership or other entity, or (iii) governmental
authority.
(f) “ Shares ”
shall mean: (i) all shares of capital stock of the Company
Beneficially Owned by Shareholder as of the date of this Agreement;
and (ii) all additional shares of capital stock of the Company of
which Shareholder acquires Beneficial Ownership during the period
from the date of this Agreement through the Expiration Date,
including, without limitation, shares issued or issuable upon the
conversion, exercise or exchange, as the case may be, of
Options.
(g) “ Transfer ”
shall mean, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, pledge, hypothecation, or the
gift, placement in trust, or the Constructive Sale or other
disposition of such security (excluding transfers by testamentary
or intestate succession or otherwise by operation of law) or any
right, title or interest therein (including, but not limited to,
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 the record or beneficial ownership thereof, the
offer to make such a sale, transfer, Constructive Sale or other
disposition, and each agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing,
excluding any Transfer pursuant to a court order.
2. No Transfer of Shares or
Options . Shareholder agrees that, at all times during the
period beginning on the date hereof and ending on the Expiration
Date, Shareholder shall not cause or permit any Transfer of any
Shares or Options, or make any agreement relating
thereto,
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in each case without the prior written consent
of Parent. Shareholder agrees that any Transfer in violation of
this Agreement shall be void and of no force or effect.
3. No Transfer of Voting
Rights . Shareholder agrees that, during the period from
the date of this Agreement through the Expiration Date, Shareholder
shall not deposit (or permit the deposit of) any Shares or Options
in a voting trust or grant any proxy or enter into any voting
agreement or similar agreement in contravention of the obligations
of Shareholder under this Agreement with respect to any of the
Shares or Options.
4. 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 (as defined below), the Shares or cause the Shares to be
voted:
(i) in favor of adoption and
approval of the Merger Agreement, in favor of approval of the
Merger and its principal terms 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 transactions contemplated by the
Merger Agreement, and against 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 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 or any subsidiary of the Company
with any party, (B) any sale, lease, license or transfer of any
significant part of the assets of the Company or any subsidiary of
the Company, (C) any reorganization, recapitalization, dissolution,
liquidation or winding up of the Company or any subsidiary of the
Company, (D) 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 other
than an August Financing in compliance with Section 5.3 of the
Merger Agreement, 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.
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 4 .
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5. Irrevocable Proxy .
Concurrently with the execution of this Agreement, Shareholder
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 the total number of
Shares.
6. Representations, Warranties
and Covenants of Shareholder . Shareholder represents,
warrants and covenants to Parent as follows:
(i) Shareholder is the Beneficial
Owner of the shares of Company Common Stock and the options and
warrants to purchase shares of Company Common Stock indicated on
the signature page of this Agreement.
(ii) Shareholder 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 as set forth on
the signature page hereto.
(iii) Shareholder 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) 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 of any kind or nature, in
each case that would impair Shareholder’s ability to fulfill
its obligations under Section 4 . The execution and delivery
of this Agreement by Shareholder do not, and Shareholder’s
performance of its obligations under this Agreement will not
conflict with or violate any order, decree, judgment or agreement
applicable to Shareholder or by whi
