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Exhibit
2.2
VOTING
AGREEMENT
THIS VOTING AGREEMENT (this
“Agreement”) is entered into as of March 3, 2008
by and among the stockholders listed on the signature page(s)
hereto (collectively, the “Stockholders” and each
individually, a “Stockholder”), Optio Software, Inc., a
Georgia corporation (the “Company”), and Bottomline
Technologies (de), Inc., a Delaware corporation
(“Parent”). Capitalized terms used and not otherwise
defined herein shall have the respective meanings assigned to them
in the Merger Agreement referred to below.
WHEREAS, as of the date
hereof, the Stockholders collectively own of record and
beneficially the shares of Company Stock (such shares being
referred to herein collectively as the “Shares” and,
for the avoidance of doubt, all references herein to a
Stockholder’s Shares shall include not only all the Shares
opposite such Stockholder’s name on Schedule I, but also all
additional shares of Company Stock that are owned directly or
indirectly by such Stockholder, subject in all cases to Transfers
(as defined herein) of such Shares that have been made to Permitted
Transferees (as defined herein) to the extent permitted by and in
accordance with Section 2(a)) set forth opposite their
respective names on Schedule I hereto;
WHEREAS, concurrently with
the execution of this Agreement, Parent, Olive Acquisition Corp., a
Delaware corporation and a wholly owned subsidiary of Parent
(“Merger Sub”), and the Company are entering into an
Agreement and Plan of Merger, dated as of the date hereof (as
amended, restated, supplemented or otherwise modified from time to
time in accordance with the terms thereof, the “Merger
Agreement”), pursuant to which, upon the terms and subject to
the conditions thereof, Merger Sub will be merged with and into the
Company, and the Company will be the surviving corporation (the
“Merger”); and
WHEREAS, as a condition to
the willingness of Parent to enter into the Merger Agreement,
Parent has required that the Stockholders enter into, and in order
to induce Parent to enter into the Merger Agreement, the
Stockholders are willing to enter into, this Agreement.
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as
follows:
Section 1. Voting of
Shares .
(a) Each Stockholder
covenants and agrees that until the termination of this Agreement
in accordance with the terms hereof, at the Company
Shareholders’ Meeting or any other meeting of the
stockholders of the Company, however called, and in any action by
written consent of the stockholders of the Company, such
Stockholder (i) will vote or consent to, or cause to be voted
or consented to, all of his, her or its Shares to approve the
Merger Agreement and (ii) will vote all of his, her or its
Shares against, and not provide consents to, any and all Competing
Transactions and agreements providing for Competing Transactions or
any proposal or nomination made by a Person who is, or whose
Affiliate is, making, or has communicated an
intention to make, a proposal for a
Competing Transaction. In the event the Merger Agreement is amended
in accordance with its terms to provide for a tender offer
structure, such Stockholder shall tender his, her or its Shares
before the scheduled expiration date for such tender offer by
Parent.
(b) Each Stockholder hereby
irrevocably grants to, and appoints, Parent, and any individual
designated in writing by it, and each of them individually, as its
proxy and attorney-in-fact (with full power of substitution), for
and in its name, place and stead, to vote his, her or its Shares at
the Company Shareholders’ Meeting or any other meeting of the
stockholders of the Company, however called, and in any action by
written consent of the stockholders of the Company with respect to
any of the matters specified in, and in accordance and consistent
with, Section 1(a). Each Stockholder understands and
acknowledges that Parent is entering into the Merger Agreement in
reliance upon the Stockholder’s execution and delivery of
this Agreement. Each Stockholder hereby affirms that the
irrevocable proxy set forth in this Section 1(b) is given in
connection with the execution of the Merger Agreement, and that
such irrevocable proxy is given to secure the performance of the
duties of such Stockholder under this Agreement. Except as
otherwise provided for herein, each Stockholder hereby
(i) affirms that the irrevocable proxy is coupled with an
interest and may under no circumstances be revoked,
(ii) ratifies and confirms all that the proxies appointed
hereunder may lawfully do or cause to be done by virtue hereof and
(iii) affirms that such irrevocable proxy is executed and
intended to be irrevocable in accordance with the applicable
provisions of the GBCC. Notwithstanding any other provisions of
this Agreement, the irrevocable proxy granted hereunder shall
automatically terminate upon the termination of this
Agreement.
Section 2. Transfer
of Shares; Non-Solicitation .
(a) Each Stockholder
covenants and agrees that, without the written consent of Parent,
such Stockholder will not directly or indirectly (i) sell,
assign, transfer (including by merger, interspousal disposition
pursuant to a domestic relations proceeding or otherwise by
operation of law), pledge, encumber, assign or otherwise dispose of
(“Transfer”) any Shares or the Beneficial Ownership (as
hereinafter defined) thereof (except to a Permitted Transferee),
(ii) deposit any Shares into a voting trust or enter into a
voting agreement or arrangement with respect to any Shares or the
Beneficial Ownership thereof or grant or agree to grant any proxy
or power of attorney with respect thereto which is inconsistent
with this Agreement or (iii) enter into any contract, option
or other arrangement or undertaking with respect to the direct or
indirect Transfer of any Shares or the Beneficial Ownership thereof
(except, in each case under clause (i) and this clause (iii),
to a Permitted Transferee). For purpose of this Agreement,
“Beneficial Ownership” shall have the meaning given to
such term in Rule 13d-3 under the Exchange Act (disregarding the
reference to “within 60 days” in Rule 13d-3(d)(1)(i)).
As used herein, a “Permitted Transferee” shall mean a
Person that (A) is a signatory to this Agreement as of the
date hereof, owns Shares continuously from the date hereof through
the time of the action proposed under Section 2(a)(i) or
Section 2(a)(iii), and has not violated this Agreement or
(B) before such action proposed under Section 2(a)(i) or
Section 2(a)(iii) occurs, agrees in writing, in form and
substance to the reasonable satisfaction of Parent, to be bound as
a Stockholder under this Agreement and has not violated this
Agreement. In connection with any Transfer of Shares
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to a Permitted Transferee, the
transferring Stockholder may transfer its rights and obligations
under this Agreement to the Permitted Transferee, but the
transferring Stockholder shall remain primarily liable for all
breaches of such obligations before such Transfer and shall remain
secondarily liable for all breaches of such transferred obligations
from and after such Transfer. Notwithstanding anything herein to
the contrary, nothing in this Agreement shall permit any Transfer
of Shares, Beneficial Ownership, rights or obligations or any other
action that would otherwise be permitted by this Section 2(a)
if such Transfer or other action would create any material
impediment or delay to the performance or consummation of the
Merger Agreement or this Agreement, including, without limitation,
triggering the applicability of any state takeover statute or
similar law to the Merger Agreement, this Agreement or any of the
transactions contemplated by the Merger Agreement or this
Agreement.
(b) Each Stockholder
undertakes that, while this Agreement is in effect, except as
contemplated by Section 8, such Stockholder shall not,
directly or indirectly, (i) solicit, initiate, propose or
knowingly encourage (including by way of furnishing information or
assistance) or take any other action to facilitate, any inquiries
or the making of any proposal which constitutes, or would
reasonably be expected to lead to, any Competing Transaction,
(ii) agree to, approve, endorse or recommend any Competing
Transaction, (iii) execute or enter into any letter of intent,
agreement in principle, memorandum of understanding, agreement,
option agreement, merger agreement, asset purchase or share
exchange or issuance agreement, voting agreement or similar
agreement or arrangement with respect to any Competing Transaction,
(iv) enter into, continue, participate, engage or knowingly
assist in any manner in negotiations or discussions with, or
provide any non-public information or data to, any person (other
than Parent or any of its affiliates or representatives) relating
to any Competing Transaction or (v) authorize any of such
Stockholder’s officers, directors or employees (where
applicable) or any investment banker, financial advisor, attorney,
accountant or other representatives retained by such Stockholder or
by any of its Affiliates to take any of the actions set forth in
clauses (i) through (iv) of this
Section 2(b).
Section 3. Waiver of
Appraisal Rights . Stockholder hereby irrevocably and
unconditionally waives any rights of appraisal, dissenters’
rights or similar rights that Stockholder may have in connection
with the transactions contemplated by the Merger.
Section 4. Reasonable
Efforts to Cooperate .
(a) Except as contemplated by
Section 8, each Stockholder will, without further
consideration, promptly provide any information reasonably
requested by the Company, Parent or Merger Sub for any regulatory
application or filing made or approval sought in connection with
the transactions contemplated by this Agreement or the Merger
Agreement (including filings with the SEC or any other Governmental
Entity).
(b) Each Stockholder hereby
consents to the publication and disclosure in the Proxy Statement,
statements of beneficial ownership filed by Parent and its
Affiliates (and any other documents or communications provided by
Parent, Merger Sub or the Company to any Governmental Entity or to
security holders of the Company) such Stockholder’s identity
and Beneficial Ownership of the Shares and the nature of such
Stockholder’s commitments, arrangements and understandings
under and relating to this Agreement.
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(c) Each Stockholder agrees,
while this Agreement is in effect, to notify Parent promptly in
writing (i) of the number of additional Shares, any options to
purchase Sha
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