Exhibit 2.2
Execution Version
VOTING AGREEMENT
This VOTING AGREEMENT (this “
Agreement ”), dated as of April 19, 2009, is
entered into by and between the individual listed as
“Stockholder” on the signature pages hereof (“
Stockholder ”) and Oracle Corporation, a Delaware
corporation (“ Parent ”).
WHEREAS, contemporaneously with the
execution of this Agreement, Parent, Soda Acquisition Corporation,
a Delaware corporation (“ Merger Sub ”), and Sun
Microsystems, Inc., a Delaware corporation (the “
Company ”), are entering into an Agreement and Plan of
Merger, dated as of the date hereof (the “ Merger
Agreement ”), providing, among other things, for the
merger of Merger Sub with and into the Company (the “
Merger ”);
WHEREAS, Parent and Merger Sub, as a
precondition to its willingness to enter into the Merger Agreement,
have required assurances from the Stockholder regarding
Stockholder’s support for the transactions contemplated by
the Merger Agreement and agreement as to the other matters set
forth in this Agreement, and Stockholder has agreed to provide such
assurances by entering into this Agreement; and
WHEREAS, the Company has approved
the entry by Parent, Merger Sub and Stockholder into this Agreement
for purposes of Section 203 of the Delaware Law.
NOW, THEREFORE, in consideration of
the foregoing and the respective representations, warranties,
covenants and agreements set forth in this Agreement and in the
Merger Agreement, and intending to be legally bound hereby, the
parties hereto agree as follows:
1. Certain Definitions . For
the purposes of this Agreement, capitalized terms used and not
otherwise defined herein shall have the meanings ascribed to them
in this Section 1 . Other capitalized terms used and
not otherwise defined shall have the meanings ascribed to them in
the Merger Agreement.
“ Additional Owned
Shares ” means all shares of Company Common Stock and any
other equity securities of the Company which are Beneficially Owned
by Stockholder and are acquired after the date hereof and prior to
the termination of this Agreement.
“ Beneficially Owned
,” “ Beneficial Owner ” and “
Beneficial Ownership ” have the meanings set forth in
Rule 13d-3 promulgated under the Securities Act.
“ Covered Shares
” means the Owned Shares and Additional Owned
Shares.
“ Owned Shares ”
means all shares of Company Common Stock and any other equity
securities of the Company which are Beneficially Owned by
Stockholder as of the date hereof.
“ Representatives
” has the meaning assigned there to in
Section 3(b) hereof.
“ Term ” has the
meaning assigned thereto in Section 6
hereof.
“ Transfer ”
means, with respect to a security, the transfer, pledge,
hypothecation, encumbrance, assignment or other disposition
(whether by sale, merger, consolidation, liquidation, dissolution,
dividend, distribution or otherwise) of such security or the
Beneficial Ownership thereof, the offer to make such a transfer or
other disposition, and each option, agreement, arrangement or
understanding, whether or not in writing, to effect any of the
foregoing.
2. Stockholder Vote
.
(a) Voting Agreement . At any
meeting of the stockholders of the Company, however called, or at
any adjournment thereof, or in any other circumstance in which the
vote, consent or other approval of the stockholders of the Company
is sought with respect to the Merger Agreement or any Acquisition
Proposal or any proposal relating to the Merger Agreement or any
Acquisition Proposal, Stockholder shall, and shall cause any other
holder of record of any Covered Shares to (i) appear at each
such meeting or otherwise cause all Covered Shares to be counted as
present thereat for purposes of calculating a quorum and
(ii) vote (or cause to be voted), or execute and deliver a
written consent (or cause a written consent to be executed and
delivered) covering, all Covered Shares (A) in favor of the
Merger, the execution and delivery by the Company of the Merger
Agreement and the adoption and approval of the Merger Agreement and
the terms thereof, in favor of each of the other actions
contemplated by the Merger Agreement and in favor of any action in
furtherance of any of the foregoing; (B) against (i) any
Acquisition Proposal or any proposal relating to an Acquisition
Proposal, (ii) any merger agreement or merger (other than the
Merger Agreement and the Merger), consolidation, combination, sale
of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company, or
(iii) any amendment of the Company’s certificate of
incorporation or bylaws that, in the case of each of the foregoing
clauses (i) through (iii) would (1) impede,
frustrate, prevent or nullify any provision of this Agreement, the
Merger Agreement or the Merger, (2) result in a breach in any
respect of any covenant, representation, warranty or any other
obligation or agreement of the Company under the Merger Agreement,
or (3) change in any manner the voting rights of the Covered
Shares. Stockholder shall not commit or agree to take any action
inconsistent with the foregoing.
(b) Irrevocable Proxy .
Concurrently with the execution of this Agreement, Stockholder
agrees to deliver to Parent an irrevocable proxy in the form
attached as Exhibit A hereto (the “ Proxy
”), which shall be irrevocable to the extent permitted by
applicable law, covering all Covered Shares. Stockholder hereby
represents to Parent that any proxies heretofore given in respect
of the Covered Shares are not irrevocable and that any such proxies
are hereby revoked, and Stockholder agrees to promptly notify the
Company of such revocation. Stockholder hereby affirms that the
Proxy 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 Stockholder under this Agreement.
Stockholder hereby further affirms that the Proxy is coupled with
an interest and may under no circumstances be revoked. Without
limiting the generality of the foregoing, such irrevocable proxy is
executed and intended to be irrevocable in accordance with the
provisions of Section 212 of the Delaware General Corporation
Law. If for any reason the proxy granted herein is not irrevocable,
Stockholder agrees to vote the Covered Shares in accordance with
Section 2(a) hereof.
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3. No Disposition or
Solicitation; Communications
(a) No Disposition .
Stockholder hereby covenants and agrees that between the date
hereof and the termination of this Agreement pursuant to
Section 6 , except as contemplated by this Agreement
and the Merger Agreement, Stockholder shall not (a) offer to
Transfer, Transfer or consent to any Transfer of any or all of the
Covered Shares or any interest therein without the prior written
consent of Parent, (b) enter into any contract, option or
other agreement or understanding with respect to any Transfer of
any or all Covered Shares or any interest therein, (c) grant
any proxy, power-of-attorney or other authorization or consent in
or with respect to any or all of the Covered Shares,
(d) deposit any or all of the Covered Shares into a voting
trust or enter into a voting agreement or arrangement with respect
to any or all of the Covered Shares or (e) take any other
action that would make any representation or warranty of
Stockholder contained herein untrue or incorrect in any material
respect or in any way restrict, limit or interfere in any material
respect with the performance of Stockholder’s obligations
hereunder or the transactions contemplated hereby or by the Merger
Agreement. Any attempted Transfer of Covered Shares or any interest
therein in violation of this Section 3 shall be null
and void. This Section 3 shall not prohibit a Transfer
of the Covered Shares by Stockholder (i) to any member of
Stockholder’s immediate family, or to a trust for the benefit
of Stockholder or any member of Stockholder’s immediate
family, (ii) upon the death of Stockholder,
(iii) pursuant to the terms of a trading plan adopted pursuant
to Rule 10b5-1 under the Exchange Act in effect prior to the date
hereof or (iv) upon the vesting of any Company Compensatory
Award but only to the extent of such Stockholder’s income or
other tax liability with respect to such Company Compensatory
Award; provided , that, with the exception of 3(a)(iii) and
3(a) (iv) hereof, a Transfer referred to in this sentence
shall be permitted only if, as a precondition to such Transfer, the
transferee agrees in a writing, reasonably satisfactory in form and
substance to Parent, to be bound by all of the terms of this
Agreement.
(b) Non-Solicitation .
Stockholder (in Stockholder’s capacity as such) hereby agrees
that Stockholder shall not, and shall use reasonable efforts to
cause his representatives and agents (including its investment
bankers, attorneys and accountants) (collectively, its “
Representatives ”) to not, directly or indirectly,
solicit, initiate or knowingly take any action to facilitate or
encourage the submission of any Acquisition Proposal or the making
of any inquiry, offer or proposal that could reasonably be expected
to lead to any Acquisition Proposal, or (i) conduct or engage
in any discussions or negotiations with, disclose any non-public
information relating to the Company or any of its Subsidiaries to,
afford access to the business, properties, assets, books or records
of the Company or any of its Subsidiaries to, or knowingly assist,
participate in, facilitate or encourage any effort by, any Third
Party that is seeking to make, or has made, any Acquisition
Proposal or (ii) enter into any Contract relating to any
Acquisition Proposal.
(c) Communications . Unless
required by applicable law, Stockholder shall not, and shall cause
its Representatives not to, make any press release, public
announcement or other public communication that criticizes or
disparages this Agreement and the Merger Agreement and the
transactions contemplated hereby and thereby, without the prior
written consent of Parent. Stockholder hereby (i) consents to
and authorizes the publication and disclosure by Parent of
Stockholder’s identity and holding of Covered Shares, and the
nature of Stockholder’s commitments, arrangements and
understandings under this Agreement, and any other
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information that Parent reasonably determines to
be necessary in any SEC disclosure document in connection with the
Merger or any other transactions contemplated by the Merger
Agreement and (ii) agrees as promptly as practicable to notify
Parent of any required corrections with respect to any written
information supplied by it specifically for use in any such
disclosure document.
4. Additional Agreements
.
(a) Certain Events . In the
event of any stock split, stock dividend, merger, reorganization,
recapitalization or other change in the capital structure of the
Company affecting the Covered Shares or the acquisition of
Additional Owned Shares or other securities or rights of the
Company by Stockholder, (i) the type and number of Covered
Shares shall be adjusted appropriately and (ii) this Agreement
and the obligations hereunder shall automatically attach to any
additional Covered Shares or other securities or rights of the
Company issued to or acquired by Stockholder.
(b) Waiver of Appraisal and
Dissenters’ Rights and Actions . Stockholder hereby
(i) waives and agrees not to exercise any rights of appraisal
or rights to dissent from the Merger that Stockholder may have and
(ii) agrees not to commence or participate in, and to take all
actions necessary to opt out of any class in any class action with
respect to, any claim, derivative or otherwise, against Parent,
Merger Sub, the Company or any of their respective successors
relating to the negotiation, execution or delivery of this
Agreement or the Merger Agreement or the consummation of the
Merger, including any claim (x) challenging the validity of,
seeking to enjoin the operation of, any provision of this Agreement
or (y) alleging a breach of any
