Exhibit 2.2
VOTING AGREEMENT
This Voting Agreement (“
Agreement ”) is made and entered into as of December
10, 2006, by and among Trimble Navigation Limited, a California
corporation (“ Acquirer ”), Roadrunner
Acquisition Corp., a Delaware corporation and a wholly-owned
subsidiary of Acquirer (“ Merger Sub ”), and the
undersigned stockholder (the “ Stockholder ”) of
@Road, Inc., a Delaware corporation (the “ Company
”). Certain capitalized terms used in this Agreement
are defined in Section 6 hereof and certain other capitalized terms
used in this Agreement that are not defined herein shall have the
meaning given to such terms in the Merger Agreement (as defined
below).
RECITALS
WHEREAS , Stockholder is the holder of record and the
“beneficial owner” (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934) of certain common stock
of the Company;
WHEREAS , concurrently with the execution and delivery
of this Agreement, Acquirer, Merger Sub and the Company are
entering into an Agreement and Plan of Merger (the “
Merger Agreement ”) which provides, upon the terms and
subject to the conditions set forth therein, for the merger of
Merger Sub with and into the Company (the “ Merger
”); and
WHEREAS , as a condition and inducement to
Acquirer’s willingness to enter into the Merger Agreement,
the Stockholder has agreed to execute and deliver this
Agreement.
AGREEMENT
NOW, THEREFORE
, the parties to this Agreement,
intending to be legally bound, agree as follows:
1.
Agreement to Vote
Shares . Prior to
the Termination Date, at every meeting of the stockholders of the
Company (or of the holders of any class of stock of the
Company’s capital stock) called with respect to any of the
following, and at every adjournment or postponement thereof, with
respect to any of the following, the Stockholder shall vote with
respect to the Subject Securities: (a) in favor of
adoption of the Merger Agreement and approval of the Merger and the
other actions contemplated by the Merger Agreement or would
reasonably be expected to facilitate the Merger Agreement, the
Merger and the other actions and transactions contemplated by the
Merger Agreement, this Agreement or the Proxy (the “
Merger Proposals ”), (b) against any proposal for
any Acquisition Transaction between the Company and any Person
other than Acquirer or Merger Sub, and (c) against any other
action, agreement or proposal that could reasonably be expected to
result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger
Agreement or the related transactions or which could reasonably be
expected to result in any of the conditions to the consummation of
the Merger under the Merger Agreement not being fulfilled or which
could reasonably be expected to otherwise impede, interfere with,
delay, postpone or materially adversely affect the Merger or the
other transactions contemplated by the Merger Agreement.
2.
Irrevocable Proxy
. Concurrently with the
execution of this Agreement, the Stockholder agrees to deliver to
Acquirer a proxy in the form attached hereto as Exhibit A
(the “ Proxy ”), which is coupled with an
interest and shall be irrevocable to the fullest extent permitted
by law, with respect to the shares referred to therein, which Proxy
shall remain in effect until the Termination Date.
3.
Agreement to Retain
Shares .
(a)
Restriction on Transfer
. Except
pursuant to the terms of the Merger Agreement or otherwise provided
in Section 3(c) of this Agreement, during the period from the date
of this Agreement through the Termination Date, the Stockholder
shall not, directly or indirectly, cause or permit any Transfer of
any of the Subject Securities to be effected. Any Transfer of
any Subject Securities in violation of this Section 3 shall be void
and have no force or effect.
(b)
Restriction on Transfer of Voting
Rights. During the
period from the date of this Agreement through the Termination
Date, the Stockholder shall not: (a) grant any proxy or power
of attorney, deposit any of the Subject Securities into a voting
trust or enter into a voting agreement or similar arrangement with
respect to the Subject Securities except as provided in this
Agreement; or (b) take any other action that would make any
representation or warranty of the Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling
the Stockholder from performing its obligations under this
Agreement or the Transaction Documents.
(c)
Permitted Transfers
. Section
3(a) shall not prohibit a Transfer of Company Capital Stock by the
Stockholder upon the death of the Stockholder; provided,
however , that a Transfer referred to in this sentence shall be
permitted only if, as a precondition to such Transfer, the
transferee (i) agrees in a writing, reasonably satisfactory in form
and substance to Acquirer, to be bound by the terms of this
Agreement and refrain from any and all Transfers of the Subject
Securities, and (ii) delivers a Proxy to Acquirer in substantially
the form of Exhibit A . In addition, Section 3(a)
shall not prohibit a Transfer of Company Capital Stock by the
Stockholder pursuant to the terms of a trading plan adopted
pursuant to Rule 1065-1 under the Exchange Act in effect prior to
the date hereof.
4.
Representations, Warranties and
Covenants of Stockholder . The Stockholder hereby represents and
warrants to Acquirer as follows:
(a)
Due Authorization, Etc
. All consents, approvals,
authorizations, filings and orders necessary for the execution and
delivery by the Stockholder of this Agreement and the Proxy have
been obtained or made, and the Stockholder has legal capacity,
power and authority to enter into this Agreement and the
Proxy. This Agreement and the Proxy have been duly and
validly executed and delivered by the Stockholder and constitute
valid and binding agreements or instruments of the Stockholder
enforceable in accordance with their terms, except as the same may
be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws now or hereafter in effect relating to
creditors’ rights generally and subject to general principles
of equity.
2
(b)
No Conflict
. The execution and delivery
of this Agreement and the Proxy by the Stockholder do not, and the
performance of this Agreement and the Proxy by the Stockholder will
not conflict with, violate or result in a breach of or constitute
(with or without notice or the passage of time) a default (or give
rise to any third party right of termination, cancellation,
material modification or acceleration) under (i) the organizational
documents of the Stockholder, if any, (ii) any law, rule,
regulation, order, decree or judgment applicable to the
Stockholder, the Subject Securities held by the Stockholder or any
of the Stockholder’s other properties or assets or (iii) any
contract, indenture, guarantee, lease, mortgage, license or other
agreement, instrument, obligation or undertaking of any kind to
which Stockholder is a party or by which the Stockholder or any of
its properties or assets are bound.
(c)
Title to Securities
. As of the date of this
Agreement: (a) the Stockholder holds of record the outstanding
Company Common Stock set forth under the heading “Stock Held
of Record” on the signature page hereof; (b) the Stockholder
holds the options and other rights to acquire shares of Company
Common Stock set forth under the heading “Options and Other
Rights” on the signature page hereof; (c) the Stockholder
Owns the additional securities of the Company set forth under the
heading “Additional Securities Beneficially Owned” on
the signature page hereof; and (d) the Stockholder does not
directly or indirectly Own any capital stock or other securities of
the Company, or any option, warrant or other right to acquire (by
purchase, conversion or otherwise) any capital stock or other
securities of the Company, other than the stock and options,
warrants and other rights set forth on the signature page
hereof. The Stockholder has voting power and power to issue
instructions with respect to the matters set forth herein, power of
disposition, power of conversion, power to demand appraisal rights
and power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Subject
Securities with no limitations, qualifications or restrictions on
such rights. Except as permitted by this Agreement the
Subject Securities are now and, at all times during the term
hereof, the Subject Securities will be, held by the Stockholder or
by a nominee or custodian for the benefit of the Stockholder, free
and clear of all mortgages, claims, charges, liens, security
interests, pledges or options, proxies, voting trusts or
agreements, understandings or arrangements or any other rights
whatsoever.
(d)
Community Property.
The Stockholder either (i) is
not, and will not be during the term of this Agreement, subject to
community property laws or (ii) has delivered a Community Property
Waiver in the form of Exhibit B hereto with respect to each
person who has or who may acquire community property rights in any
of the Subject Securities.
(e)
Reliance by Acquirer.
The Stockholder understands
and acknowledges that Acquirer is entering into the Merger
Agreement in reliance upon the Stockholder’s execution and
delivery of this Agreement.
(f)
Stop Transfer.
The Stockholder hereby agrees
and covenants that it will not request that the Company register
the transfer of any certificate or uncertificated interest
representing any of the Subject Securities, unless such transfer is
made in compliance with this Agreement. In the event of a
stock dividend or distribution, or any change in the Common Stock
by reason of any stock dividend, split-up, recapitalization,
combination, exchange of stock or the like other than pursuant to
the Merger, the term “S
