VOTING AGREEMENT
Exhibit 2
This Voting Agreement (the “Agreement”) is made and entered into as of April 12, 2009,
by and between HAC Holding, Inc., a Delaware corporation (“Newco”) and the undersigned
shareholder (“Holder”) of Entrust, Inc., a Maryland corporation (the “Company”).
RECITALS
Pursuant to an Agreement and Plan of Merger, dated as of April 12, 2009 (the “Merger
Agreement”) by and among Newco, HAC Acquisition Corporation, a Maryland corporation and
wholly-owned subsidiary of Newco (“Merger Sub”), and the Company, Merger Sub is merging
with and into the Company (the “Merger”) and the Company, as the surviving corporation of
the Merger, will thereby become a wholly-owned subsidiary of Newco. Concurrently with the
execution and delivery of the Merger Agreement and as a condition and inducement to Newco and
Merger Sub to enter into the Merger Agreement, Newco has required that Holder enter into this
Agreement. The Holder is the record and beneficial owner (within the meaning of Rule 13d-3 of the
Exchange Act) of such number of shares of the outstanding Common Stock, par value $0.01 per share,
of the Company as is indicated beneath Holder’s signature on the last page of this Agreement (the
“Shares”). Capitalized terms used herein but not defined shall have the meanings ascribed
to them in the Merger Agreement.
AGREEMENT
The parties agree as follows:
1. Agreement to Retain Shares.
(a) Transfer. (1) Except as contemplated by the Merger Agreement, and except as
provided in Section 1(b) below, during the period beginning on the date hereof and ending
on the earlier to occur of (i) the Effective Time (as defined in the Merger Agreement) and (ii) the
Expiration Date (as defined below), Holder agrees not to, directly or indirectly, sell, transfer,
exchange or otherwise dispose of (including by merger, consolidation or other similar transaction)
the Shares or any New Shares (as defined below), (2) Holder agrees not to, directly or indirectly,
grant any proxies or powers of attorney, deposit any of such Holder’s Shares into a voting trust or
enter into a voting agreement with respect to any of such Holder’s Shares, or enter into any
agreement or arrangement providing for any of the actions described in this clause (2), and (3)
Holder agrees not to, directly or indirectly, take any action that would prevent or disable Holder
from performing Holder’s obligations under this Agreement at any time prior to the earlier to occur
of (i) the Effective Time and (ii) the Expiration Date. As used herein, the term “Expiration
Date” shall mean the earlier to occur of (i) the date of termination of the Merger Agreement in
accordance with the terms and provisions thereof and (ii) the date on which the Company’s Board of
Directors withdraws or modifies in a manner adverse to Newco or Merger Sub its approval or
recommendation of the Merger or the transactions contemplated thereby.
(b) Permitted Transfers. Section 1(a) shall not prohibit a transfer of Shares
or New Shares by Holder (i) to any family member, trust for the benefit of any family member or
charitable organization to which contributions are deductible for federal income tax, estate, or
gift purposes so long as the assignee or transferee agrees to be bound by the terms of this
Agreement and executes and delivers to the parties hereto a written consent memorializing such
agreement and (ii) upon the vesting of restricted stock awards of Company Common Stock but only to
the extent of such Holder’s income or other tax liability with respect to such vested restricted
stock awards.
(c) New Shares. Holder agrees that any shares of the Company Common Stock that Holder
purchases or with respect to which Holder otherwise acquires record or beneficial ownership after
the date of this Agreement and prior to the earlier to occur of (i) the Effective Time and (ii) the
Expiration Date (“New Shares”) shall be subject to the terms and conditions of this
Agreement to the same extent as if they constituted Shares.
(d) Stop Transfer. From and after the date of this Agreement through the term of this
Agreement, Holder agrees not to request the Company to register or otherwise recognize the transfer
(book-entry or otherwise) of any Shares or any certificate or uncertificated interest representing
any of Holder’s Shares, except as permitted by, and in accordance with, Section 1(b).
2. Agreement to Vote Shares.
(a) Until the earlier to occur of the Effective Time and the Expiration Date, at every meeting
of the shareholders of the Company called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the shareholders of the
Company with respect to any of the following, Holder shall appear at such meeting (in person or by
proxy) and shall vote or consent the Shares and any New Shares (i) in favor of adoption of the
Merger Agreement and the approval of the transactions contemplated thereby and (ii) against any
proposal for any recapitalization, merger, sale of assets or other business combination (other than
the Merger) between the Company and any person or entity other than Newco, or any other action or
agreement that would reasonably be expected to result in a breach of any covenant, representation
or warranty or other obligation or agreement of Holder under this Agreement or which is designed to
delay, prevent or frustrate the Merger. This Agreement is intended to bind Holder as a shareholder
of the Company only with respect to the specific matters set forth herein. Except as set forth in
clauses (i) and (ii) of this Section 2, Holder shall not be restricted from voting in favor
of, against or abstaining with respect to any other matter presented to the shareholders of the
Company. Prior to the termination of this Agreement, Holder covenants and agrees not to enter into
any agreement or understanding with any person to vote or give instructions in any manner
inconsistent with the terms of this Agreement.
(b) Holder further agrees that, until the termination of this Agreement, Holder will not, and
will not permit any entity under Holder’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 shareholders’ vote with respect to an
Opposing Proposal or (C) become a member of a “group” (as such term is used in
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Section 13(d) of the Exchange Act) with respect to any voting securities of the Company with
respect to an Opposing Proposal. For the purposes of this Agreement, an “Opposing
Proposal” means any action or proposal described in clause (ii) of Section 2(a) above.
(c) Subject to the provisions set forth in Section 5 hereof and as security for
Holder’s obligations under Section 2(a), Holder hereby irrevocably constitutes and appoints
Newco and its or his designees as his attorney and proxy in accordance with the MGCL, with full
power of substitution and resubstitution, to cause the Shares to be counted as present at the
Company Shareholder Meeting, to vote his Shares at the Company Shareholder Meeting, however called,
and to execute consents in respect of his Shares as and to the extent provided in Section
2(a). SUBJECT TO THE PROVISIONS SET FORTH IN SECTION 5 HEREOF, THIS PROXY AND POWER OF
ATTORNEY IS IRREVOCABLE AND COUPLED WITH AN INTEREST. Upon the execution of this Agreement, Holder
hereby revokes any and all prior proxies or powers of attorney given by Holder with respect to
voting of the Shares on the matters referred to in Section 2(a) and agrees not to grant any
subsequent proxies or powers of attorney with respect to the voting of the Shares on the matters
referred to in Section 2(a) until after the Expiration Date. Holder understands and
acknowledges that Newco is entering into the Merger Agreement in reliance upon the Holder’s
execution and delivery of this Agreement and Holder’s granting of the proxy contained in this
Section 2(c). Holder hereby affirms that the proxy granted in this Section 2(c) is
given in connection with the execution of the Merger Agreement, and that such proxy is given to
secure the performance of the duties of Holder under this Agreement. Newco acknowledges and agrees
that Holder may vote the Shares on all other matters not referred to in Section 2(a), and
the attorneys and proxies named above may not exercise the proxy with respect to such other
matters.
3. Representations, Warranties and Covenants of Holder. Holder hereby represents,
warrants and covenants to Newco that Holder (i) is the record and beneficial owner of the Shares,
which, at the date of this Agreement and at all times up until the earlier to occur of (A) the
Effective Time and (B) the Expiration Date, and will be free and clear of any liens, options,
charges or other encumbrances, and (ii) does not own of record or beneficially any shares of
capital stock of the Company other than the Shares (excluding shares as to which Holder currently
disclaims beneficial ownership in accordance with applicable law). Holder has the legal capacity,
power and authority to enter into and perform all of Holder’s obligations under this Agreement
(including under the proxy granted in Section 2(c) above). This Agreement (including the
proxy granted in Section 2(c) above) has been duly and validly executed and delivered by
Holder and constitutes a valid and binding agreement of Holder, enforceable against Holder in
accordance with its terms, subject to (a) laws of general application relating to bankruptcy,
insolvency and the relief of debtors and (b) rules of law governing specific performance,
injunctive relief and other equitable remedies.
4. Additional Documents. Holder hereby covenants and agrees to execute and deliver
any additional documents reasonably necessary to carry out the purpose and intent of this
Agreement.
5. Termination. This Agreement and the proxy delivered in connection herewith shall
terminate and shall have no further force and effect as of the earlier to occur of (i) the
Expiration Date and (ii) the day following the date of the Company Shareholder Meeting,
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including any adjournment or postponement thereof, without any notice or action by any Holder
or any other person.
6. Fiduciary Duties. Notwithstanding anything in this Agreement to the contrary: (i)
Holder makes no agreement or understanding herein in any capacity other than in Holder’s capacity
as a record holder and beneficial owner of the Shares, (ii) nothing in this Agreement shall be
construed to limit or affect any action or inaction by Holder acting in his capacity as a director
or fiduciary of the Company, and (iii) Holder shall have no liability to Newco, Merger Sub or any
of their Affiliates under this Agreement as a result of any action or inaction by Holder acting in
his capacity as a director or fiduciary of the Company.
7. Miscellaneous.
(a) Amendments and Waivers. Any term of this Agreement may be amended or waived with
the written consent of the parties or their respective successors and assigns. Any amendment or
waiver effected in accordance with this Section 7(a) shall be binding upon the parties and
their respective successors and assigns.
(b) Governing Law; Venue.
(i) This Agreement shall be governed by and construed in accordance with the laws of the
State of Delaware, regardless of the laws that might otherwise govern under applicable principles
of conflicts of law thereof.
(ii) Each of the parties hereto (a) irrevocably consents to the service of the summons and
complaint and any other process in any action or proceeding relating to the transactions
contemplated by this Agreement, for and on behalf of itself or any of its properties or assets, in
accordance with this Section 7 or in such other manner as may be permitted by applicable
law, and nothing in this Section 7 shall affect the right of any party to serve legal
process in any other manner permitted by applicable law, (b) irrevocably and unconditionally
consents and submits itself and its properties and assets in any action or proceeding to the
exclusive general jurisdiction of the State courts located within the State of Delaware (or, only
if a State court located in the State of Delaware declines to accept jurisdiction over a particular
matter, any federal court within the State of Delaware) in the event any dispute or controversy
arises out of this Agreement, or for recognition and enforcement of any judgment in respect
thereof, (c) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion
or other request for leave from any such court, (d) agrees that any actions or proceedings arising
in connection with this Agreement shall be brought, tried and determined only in the state courts
of the State of Delaware (or, only if the Delaware Court of Chancery state courts of the State of
Delaware declines to accept jurisdiction over a particular matter, any federal court within the
State of Delaware), (e) waives any objection that it may now or hereafter have to the venue of any
such action or proceeding in any such court or that such action or proceeding was brought in an
inconvenient court and agrees not to plead or claim the same and (f) agrees that it will not bring
any action relating to this Agreement in any court other than the aforesaid courts. Each of the
parties hereto agrees that a final judgment in any action or proceeding in such courts as provided
above shall be conclusive and may be enforced in other jurisdictions by suit on the judgment or in
any other manner provided by applicable law.
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(c) Counterparts. This Agreement may be executed in one or more counterparts, all of
which shall be considered one and the same agreement and shall become effective when one or more
counterparts have been signed by each of the parties and delivered to the other party, it being
understood that all parties need not sign the same counterpart.
(d) Titles and Subtitles. The titles and subtitles set forth in this Agreement are
for convenience of reference purposes only and shall not affect or be deemed to affect in any way
the meaning or interpretation of this Agreement or any term or provision hereof.
(e) Notices. All notices and other communications hereunder shall be in writing and
shall be deemed to have been duly delivered and received hereunder (i) four business days after
being sent by registered or certified mail, return receipt requested, postage prepaid, (ii) one
business day after being sent for next business day delivery, fees prepaid, via a reputable
nationwide overnight courier service, or (iii) immediately upon delivery by hand or by facsimile
(with a written or electronic confirmation of delivery), in each case at such party’s address or
facsimile number as set forth below, or as subsequently modified by written notice.
(f) Severability. In the event that any provision of this Agreement, or the
application thereof, becomes or is declared by a court of competent jurisdiction to be illegal,
void or unenforceable, the remainder of this Agreement will continue in full force and effect and
the application of such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree to replace such
void or unenforceable provision of this Agreement with a valid and enforceable provision that will
achieve, to the extent possible, the economic, business and other purposes of such void or
unenforceable provision.
(g) Specific Performance. Each of the parties hereto hereby agrees that irreparable
damage would occur in the event that any provision of this Agreement were not performed by Holder
in accordance with its specific terms or were otherwise breached, and that money damages or other
legal remedies would not be an adequate remedy for any such damages. Accordingly, the parties
hereto acknowledge and hereby agree that in the event of any breach or threatened breach by Holder
of any of its respective covenants or obligations set forth in this Agreement, Newco and Merger Sub
shall be entitled to an injunction or injunctions to prevent or restrain breaches or threatened
breaches of this Agreement, and to specifically enforce the terms and provisions of this Agreement
to prevent breaches or threatened breaches of, or to enforce compliance with, the covenants and
obligations of Holder under this Agreement
[SIGNATURE PAGE FOLLOWS]
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The parties have caused this Voting Agreement to be duly executed on the date first above
written.
| HAC HOLDING, INC. | ||||||
| By: | /s/ Seth Boro | |||||
| Name: | ||||||
| Title: | Secretary | |||||
| Address: | ||||||
| HAC Holding, Inc. | ||||||
| c/o Xxxxx Xxxxx, LLC | ||||||
| 000 Xxxxxxxxxx Xxxxxx, 00xx Xxxxx | ||||||
| Xxx Xxxxxxxxx, XX 00000 | ||||||
| Attention: Xxxxx Xxxxxxx and Xxxx Boro Facsimile No.: (000) 000-0000 |
||||||
Signature Page to Voting Agreement
| “HOLDER” | ||||||
| EMPIRE CAPITAL | ||||||
| /s/ Xxxxx Xxxxxxxx | ||||||
| Print Name: | Xxxxx Xxxxxxxx Managing Partner |
|||||
| Holder’s Address for Notice: Empire Capital Partners Xxx Xxxxxx Xxxxxx, Xxxxx 000 Xxxxxxxx, XX 00000 |
||||||
| Attention: Xxxxx Xxxxxxxx Facsimile No.: 000-000-0000 |
||||||
SHARE OWNERSHIP ATTACHED
Signature Page to Voting Agreement
EMPIRE CAPITAL PARTNERS, L.P.
| Shares owned of record: | Beneficially owned shares: | |||||||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||||||
Common Stock |
4,698,041 | Common Stock | 4,698,041 | |||||||||||
EMPIRE CAPITAL MANAGEMENT, L.L.C.
| Shares owned of record: | Beneficially owned shares: | |||||||||||||
| Class of Shares | Number | Class of Shares | Number | |||||||||||
Common Stock |
0 | Common Stock | 6,552,659 | |||||||||||
