Exhibit 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this “Agreement”) is
entered into as of July 5, 2005, by and between Concerto
Software, Inc., a Delaware corporation (“Parent”), and
Vista Equity Fund II, L.P. (“Stockholder”).
RECITALS
A. Stockholder Owns certain shares of Series B
Convertible Preferred Stock of Aspect Communications Corporation, a
California corporation (the “Company”).
B. Parent, Ascend Merger Sub, Inc., a California
corporation (“Merger Sub”), and the Company are
entering into an Agreement and Plan of Merger, dated as of even
date herewith and as in effect on such date (including any
amendments thereto after the date hereof solely to eliminate, in
whole or in part, any condition to closing of Parent or Merger Sub
or to effect an increase (the “Common Consideration
Increase”), in cash, in the Company Common Consideration
which effects a concurrent increase, in cash, in the Company
Series B Merger Consideration in an amount that equals or
exceeds the product of (i) the Common Consideration Increase
and (ii) the Conversion Rate (as hereinafter defined) as in
effect at such time, the “Merger Agreement”) which
provides (subject to the conditions set forth therein) for the
merger of Merger Sub with and into the Company (the
“Merger”).
C. Stockholder is entering into this Agreement in
order to induce Parent to enter into the Merger
Agreement.
AGREEMENT
The
parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1.CERTAIN
DEFINITIONS
For
purposes of this Agreement:
(a) “ Company Common Stock ” shall mean
the common stock, par value $0.01 per share, of the
Company.
(b) “ Company Series B Preferred Stock
” shall mean the Series B Convertible Preferred
Stock, par value $0.01 per share, of the Company.
(c) “ Conversion Rate ” shall mean, at
any time, the quotient of (i) the Liquidation Value (as
defined in the Certificate of Determination of the Company
Series B Preferred Stock) at such time of a share of Company
Series B Preferred Stock divided by (ii) the Conversion
Price (as defined in such Certificate of Determination) at such
time.
(d) “Expiration Time” shall mean the
earliest to occur of: (i) such time as the Merger Agreement is
terminated in accordance with its terms, (ii) such time as the
Merger becomes effective, (iii) such time as the board of
directors of the Company, following due exercise of its fiduciary
duties in connection with its receipt and evaluation of a Superior
Proposal, formally recommends that the stockholders of the Company
vote against the approval and adoption of the Merger Agreement and
such recommendation is publicly announced to all of the
stockholders of the Company or (iv) December 31,
2005.
(e) Stockholder shall be deemed to “ Own
” or to have acquired “ Ownership ”
of a security if Stockholder: (i) is the record owner of such
security; or (ii) is the “beneficial owner”
(within the meaning of Rule 13d-3 under the Securities
Exchange Act of 1934) of such security.
(f) “ Person ” shall mean any:
(i) individual; (ii) corporation, limited liability
company, partnership, trust or other entity; or
(iii) governmental authority.
(g) “ Subject Securities ” shall mean:
(i) all securities of the Company (including all shares of
Company Series B Preferred Stock and all shares of Company
Common Stock and all options, warrants and other rights to acquire
shares of Company Common Stock) Owned by Stockholder as of the date
of this Agreement; and (ii) all additional securities of the
Company (including all additional shares of Company Series B
Preferred Stock and all additional shares of Company Common Stock
and all additional options, warrants and other rights to acquire
shares of Company Common Stock) of which Stockholder acquires
Ownership during the period from the date of this Agreement through
the Expiration Time.
(h) A Person shall be deemed to have effected a “
Transfer ” of a security if such Person: (i)
sells, transfers, encumbers, pledges, hypothecates, grants an
option with respect to or disposes of such security or any interest
in such security to any Person other than Parent; or
(ii) enters into an agreement or commitment contemplating the
possible sale or transfer of, encumbrance, pledge or hypothecation
of, grant of an option with respect to or disposition of such
security or any interest therein to any Person other than
Parent.
(i) Capitalized terms used but not otherwise defined in this
Agreement have the meanings assigned to such terms in the Merger
Agreement.
SECTION 2. RESTRICTIONS ON
TRANSFER OF SUBJECT SECURITIES AND VOTING RIGHTS
2.1 Restriction on Transfer of Subject Securities . During
the period from the date of this Agreement through the Expiration
Time, Stockholder shall not cause or permit any Transfer of any of
the Subject Securities to be effected, except for any Transfer to a
Person who explicitly agrees to be bound by all provisions
hereof.
2.2 Restriction on Transfer of Voting Rights . During the
period from the date of this Agreement through the Expiration Time,
Stockholder shall ensure that: (a) none of the Subject
Securities is deposited into a voting trust; and (b) no proxy
is granted with respect to any of the Subject Securities (other
than in connection with Stockholder’s compliance with Section
3(a) and other than the proxy in the form attached hereto as
Annex A delivered to Parent
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pursuant to Section 3(c)),
no voting agreement or similar agreement is entered into with
respect to any of the Subject Securities and no power of attorney
is granted with respect to the voting of the Subject
Securities.
SECTION 3. VOTING OF
SHARES.
(a) Stockholder hereby agrees that, prior to the Expiration
Time, at any meeting of the stockholders of the Company, however
called, and in any written action by consent of stockholders of the
Company, unless otherwise directed in writing by Parent,
Stockholder shall cause all issued and outstanding shares of the
Subject Securities Owned by Stockholder to be voted: (a) in
favor of: (i) the adoption of the Merger Agreement; and
(ii) the Merger and each of the other transactions
contemplated by the Merger Agreement; and (b) against the
following actions (other than the Merger and the transactions
contemplated by the Merger Agreement): (i) any merger,
consolidation or other business combination involving the Company
or any subsidiary of the Company; (ii) any sale or other
transfer of all or substantially all of the assets of the Company
and its subsidiaries taken as a whole; (iii) any Acquisition
Proposal (as defined in the Merger Agreement); (iv) any
liquidation, dissolution or winding up of the Company; (v) any
amendment to the Company’s articles of incorporation or
bylaws that is not expressly approved by Parent; and (vi) any
other action which is intended, or would reasonably be expected, to
interfere with or delay in any material respect the Merger or any
of the other transactions contemplated by the Merger
Agreement.
(b) Notwithstanding anything to the contrary contained in
this Agreement, nothing in this Agreement obligates Stockholder to
exercise any option, warrant, conversion right or other right to
acquire any Company Common Stock. Furthermore, nothing in this
Agreement shall in any manner require any individual serving, at
the request of or on behalf of Stockholder, on the board of
directors of the Company to take, or restrict any such individual
from taking, any action, including any action with respect to
Subject Securities, in his or her capacity as a director of the
Company.
(c) Stockholder has delivered to Parent a duly executed
proxy in the form attached hereto as Annex A (the
“Proxy”) covering the Subject Securities. Upon the
execution of this Agreement by Stockholder, Stockholder hereby
revokes any and all prior proxies or powers of attorney given by
Stockholder with respect to voting of the Subject Securities on the
matters referred to in Section 3(a).
SECTION 4.REPRESENTATIONS AND
WARRANTIES OF STOCKHOLDER
Stockholder hereby
represents and warrants to Parent as follows:
4.1 Authorization, etc . Stockholder has the right, power
and authority to execute and deliver this Agreement and the Proxy
and to perform Stockholder’s obligations hereunder and
thereunder. This Agreement and the Proxy have been duly executed
and delivered by Stockholder and constitute the legal, valid and
binding obligation of Stockholder, enforceable against Stockholder
in accordance with their respective terms, subject to bankruptcy,
insolvency, fraudulent transfer, reorganization, moratorium and
similar laws of general applicability relating to or affecting
creditors’ rights and to general equity
principles.
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4.2 No Conflicts or
Consents.
(a) The execution and delivery of this Agreement and the
Proxy by Stockholder do not, and the performance of this Agreement
and the Proxy by Stockholder will not: (i) conflict with or
violate any law, rule, regulation, order, decree or judgment
applicable to Stockholder or by which Stockholder or any of
Stockholder’s properties is or may be bound or affected; or
(ii) result in or constitute (with or without notice or lapse
of time) any breach of or default under, or give to any other
Person (with or without notice or lapse of time) any right of
termination, amendment, acceleration or cancellation of, or result
(with or without notice or lapse of time) in the creation of any
encumbrance or restriction on any of the Subject Securities
pursuant to, any Contract to which Stockholder is a party or by
which Stockholder or any of Stockholder’s properties is or
may be bound or affected.
(b) The execution and delivery of this Agreement and the
Proxy by Stockholder do not, and the performance of this Agreement
and the Proxy by Stockholder will not, require any consent or
approval of any Person, except for such consents and approvals as
have been obtained.
4.3 Title to Securities . As of the date of this Agreement:
(a) Stockholder holds of record (free and clear of any
encumbrances) the number of outstanding shares of
Company
