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Exhibit 2.2
VOTING
AGREEMENT
This VOTING AGREEMENT (this
“Agreement”) is made and entered into as of
April 30, 2008 between Micro Focus (US), Inc., a Delaware
corporation (“Parent”), and MF Merger Sub, Inc., a
Delaware corporation and wholly-owned subsidiary of Parent
(“Newco”), on the one hand, and the undersigned
stockholders (“Stockholders”) of NetManage, Inc., a
Delaware corporation (the “Company”), on the other
hand. Capitalized terms used and not otherwise defined herein shall
have the respective meanings set forth in the Merger Agreement
described below.
W I T N E S S E T
H:
WHEREAS, pursuant to an
Agreement and Plan of Merger, dated as of April 30, 2008, by
and among Parent, Newco, and the Company (the “Merger
Agreement”), Parent has agreed to acquire the outstanding
securities of the Company pursuant to a statutory merger of Newco
with and into the Company in which outstanding shares of capital
stock of the Company will be converted into the right to receive
the Merger Consideration;
WHEREAS, as a condition to
the willingness of Parent and Newco to enter into the Merger
Agreement and as an inducement and in consideration therefor,
Stockholder has agreed to enter into this Agreement; and
WHEREAS, Stockholders are the
record or beneficial owners (within the meaning of Rule 13d-3 of
the Exchange Act) of that number of shares of capital stock of the
Company set forth on the signature page of this Agreement (the
“Shares”) (such Shares, together with any New Shares
(as defined in Section 1.2 hereof), being referred to herein
as the “Subject Shares”).
NOW, THEREFORE, in
consideration of the foregoing and the mutual covenants and
agreements herein contained, and intending to be legally bound
hereby, the parties hereby agree as follows:
1. Agreement
to Retain Subject Shares.
1.1. Prior to the
Expiration Date (as defined below), Stockholders shall not:
(a) transfer, assign, sell, gift-over, pledge or otherwise
dispose of, or consent to any of the foregoing, any or all of the
Subject Shares or any right or interest therein
(“Transfer”); provided, however, such restrictions
shall not be applicable to (i) a gift of the Subject Shares
made to the Stockholder’s spouse or issue, including adopted
children, or to a trust for the exclusive benefit of the
Stockholder or the Stockholder’s spouse or issue, provided
such transferee agrees to be bound by the terms of this Agreement
or (ii) a transfer of title to the Subject Shares effected
pursuant to the Stockholder’s will or the laws of intestate
succession; (b) enter into any contract, option or other
agreement, arrangement or understanding with respect to any
Transfer; (c) grant any proxy, power-of-attorney or other
authorization or consent with respect to any of the Subject Shares
(other than the proxy contemplated in Section 3 hereof); or
(d) deposit any of the Subject Shares into a voting trust, or
enter into a voting agreement or arrangement with respect to any of
the Subject Shares. As used herein, the term “Expiration
Date” shall mean the earlier to occur of (x) the Effective
Time or (y) termination of the Merger Agreement in accordance
with the terms thereof.
1.2. “ New
Shares ” means:
(a) any shares of capital
stock or voting securities of the Company that either Stockholder
purchases or with respect to which either Stockholder otherwise
acquires beneficial ownership (whether through the exercise of any
options, warrants or other rights to purchase Shares or otherwise)
after the date of this Agreement and prior to the Expiration Date;
and
(b) any shares of capital
stock or voting securities of the Company that either Stockholder
becomes the beneficial owner of as a result of any change in Shares
by reason of a stock dividend, stock split, split-up,
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recapitalization,
reorganization, business combination, consolidation, exchange of
shares, or any similar transaction or other change in the capital
structure of the Company affecting the Shares.
2. Agreement
to Vote Subject Shares and Take Certain Other
Action.
2.1. Prior to the
Expiration Date, at every meeting of the stockholders of the
Company, however called, at which any of the following matters is
considered or voted upon, and at every adjournment or postponement
thereof, and on every action or approval by written consent of the
stockholders of the Company with respect to any of the following
matters, each Stockholder shall vote or give written consent or,
using such Stockholder’s best efforts, cause the holder of
record to vote or give written consent with respect to the Subject
Shares:
(a) in favor of adoption of
the Merger Agreement and the transactions contemplated
thereby;
(b) against approval of any
proposal made in opposition to or competition with consummation of
the Merger and the Merger Agreement;
(c) against any Competing
Transaction from any party other than Parent or an Affiliate of
Parent as contemplated by the Merger Agreement;
(d) against any proposal that
is intended to, or is reasonably likely to, result in the
conditions of Parent’s or Newco’s obligations under the
Merger Agreement not being fulfilled;
(e) against any amendment of
the Company’s certificate of incorporation or by-laws that is
not requested or expressly approved by Parent; and
(f) against any dissolution,
liquidation or winding up of the Company.
2.2. Prior to the
Expiration Date, Stockholder, as the holder of voting stock of the
Company, shall be present, in person or by the proxy contemplated
in Section 3 hereof, or, using Stockholder’s best
efforts attempt to cause the holder of record to be present, in
person or by the proxy contemplated in Section 3 hereof, at
all meetings of Stockholders of the Company at which any of the
matters referred to in Section 2.1 hereof is to be voted upon
so that all Subject Shares are counted for the purposes of
determining the presence of a quorum at such meetings.
2.3. Between the date
of this Agreement and the Expiration Date, each Stockholder will
not, and will not permit any entity under Stockholder’s
control to, (a) solicit proxies or become a
“participant” in a “solicitation” (as such
terms are defined in Rule 14A under the Exchange Act) with respect
to an Opposing Proposal (as defined below), (b) initiate a
stockholders’ vote with respect to an Opposing Proposal or
(c) become a member of a “group” (as such term is
used in Section 13(d) of the Exchange Act) with respect to any
voting securities of the Company with respect to an Opposing
Proposal. For purposes of this Agreement, the term “Opposing
Proposal” means any of the actions or proposals described in
clauses (b) through (f) of Section 2.1, along with
any proposal or action which would, or could reasonably be expected
to, impede, frustrate, prevent, prohibit or discourage any of the
transactions contemplated by the Merger Agreement.
2.4. Each Stockholder
shall use such Stockholder’s commercially reasonable efforts
to take, or cause to be taken, all actions, and to do, or cause to
be done, and to assist and cooperate with the other parties in
doing, all things necessary, proper or advisable to consummate and
make effective, in the most expeditious manner practicable, the
Merger and the other transactions contemplated by the Merger
Agreement.
3. Grant of
Irrevocable Proxy Coupled with an Interest.
3.1. Solely in the
event of a failure by either Stockholder to act in accordance with
such Stockholder’s obligations as to voting or executing a
written consent pursuant to Section 2.1 of this Agreement,
each Stockholder hereby revokes any and all other proxies or powers
of attorney in respect of any Subject Shares and agrees that during
the period commencing on the date hereof and for so long as this
Agreement has not been terminated by its terms, each Stockholder
hereby irrevocably appoints Parent, Merger Sub or any
individual
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designated by Parent or Merger Sub as
such Stockholder’s agent, attorney-in-fact and proxy (with
full power of substitution), for and in the name, place and stead
of each Stockholder, to vote (or cause to be voted) the Subject
Shares held of record by each Stockholder, in the manner set forth
in Section 2, at any meeting of the stockholders of the
Company, however called, or in connection with any written consent
of the stockholders of the Company.
3.2. Each Stockholder
hereby affirms that the proxy set forth in this Section 3 is
irrevocable, is coupled with an interest, and is granted in
consideration of Parent and Merger Sub entering into the Merger
Agreement.
3.3. The vote of the
proxyholder shall control in any conflict between the vote by the
proxyholder of Stockholder’s Subject Shares and a vote by
either Stockholder of such Stockholder’s Subject
Shares.
4. No
Solicitation, etc. In consideration of Parent’s and
Merger Sub’s significant expenses incurred (and to be
incurred) in connection with the Merger, each Stockholder agrees
that until the Expiration Date, such Stockholder shall not and
shall cause such Stockholder’s agents, representatives,
advisors, employees, officers and directors, as applicable, not to
initiate, solicit, entertain, promote, negotiate, aid, accept, or
discuss, directly or indirectly, any proposal or offer regarding
(a) a Competing Transaction or that could lead to a Competing
Transaction (in each case, other than with Parent and its
Affiliates) or (b) Stockholder’s current or future
position with the Company or any of its Subsidiaries or any current
or future remuneration of such Stockholder from the Company or any
of its Subsidiaries (in each case, other than with Parent and its
Affiliates). Each Stockholder agrees to notify Parent and Merger
Sub promptly upon receipt of any such proposal, offer or indication
of interest thereof and shall relate to Parent the identity of the
maker of such proposal, offer or indication of interest as well the
terms and nature thereof.
5. Representations and
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