Contract
EXHIBIT
2.2
EXECUTION
COPY
VOTING,
SUPPORT AND REDEMPTION AGREEMENT (this “Agreement”) dated as
of March 28, 2008, between TU HOLDINGS, INC., a Delaware corporation (“Parent”), MERISEL,
INC., a Delaware corporation (the “Company”), STONINGTON
CAPITAL APPRECIATION 1994 FUND, L.P., a Delaware limited partnership (“Stonington”) and
PHOENIX ACQUISITION COMPANY II, L.L.C., a Delaware limited liability company
(“Phoenix” and,
collectively with Stonington, the “Stockholder”).
WHEREAS
Parent, TU Merger, Inc., a Delaware corporation (“Sub”), and the
Company propose to enter into an Agreement and Plan of Merger dated as of the
date hereof (as the same may be amended or supplemented, the “Merger Agreement”;
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement);
WHEREAS
the Stockholder owns the number of shares of Company Common Stock and Company
Convertible Preferred Stock set forth opposite its name on Schedule A hereto
(such shares of Company Common Stock and Company Convertible Preferred Stock,
together with any other shares of capital stock of the Company acquired by the
Stockholder after the date hereof and during the term of this Agreement, being
collectively referred to herein as the “Subject Shares”);
and
WHEREAS,
as a precondition to its willingness to enter into the Merger Agreement, Parent
has requested that the Stockholder enter into this Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1. Representations and
Warranties of the Stockholder. The Stockholder hereby
represents and warrants to Parent as of the date hereof as follows:
(a) Authority; Execution and
Delivery; Enforceability. The Stockholder is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
formation. The Stockholder has all requisite power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Stockholder of
this Agreement and consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of the
Stockholder. The Stockholder has duly executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms. The execution and delivery by the Stockholder of this
Agreement do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to loss of a material benefit under, or result in the creation
of any Lien upon any of the properties or assets of the Stockholder under, (i)
any provision of any contract or agreement to which the Stockholder is a party
or by which any properties or assets of the Stockholder are bound or (ii)
subject to the filings and other matters referred to in the next sentence, any
provision of any Order or Law applicable to the Stockholder or the properties or
assets of the Stockholder. No consent or approval of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by or with respect to the Stockholder in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than such reports, if any, under
Sections 13(d) and 16 of the Exchange Act as may be required in connection with
this Agreement and the transactions contemplated hereby.
(b) The Subject
Shares. Phoenix is the record and beneficial owner of and has
good and marketable title to, the Subject Shares, free and clear of any Liens
and any other material limitation or restriction (including any restriction on
the right to vote or otherwise dispose of the Subject Shares), other than
pursuant to this Agreement and the Merger Agreement. Phoenix does not
own, of record or beneficially, any shares of capital stock of the Company other
than the Subject Shares. Phoenix has the sole right to vote the
Subject Shares, and none of the Subject Shares is subject to any voting trust or
other agreement, arrangement or restriction with respect to the voting of the
Subject Shares, except as contemplated by this Agreement. Stonington
is the sole member of Phoenix and there are no outstanding subscriptions,
options, warrants, calls, convertible securities or other rights, agreements or
commitments with respect to any membership interest in Phoenix.
(c) Alternative
Proposals. The Stockholder is not currently engaged in any
discussions or negotiations with any Person (other than Parent and Merger Sub)
regarding any Alternative Proposal.
SECTION
2. Representations and
Warranties of Parent. Parent hereby represents and warrants to
the Stockholder as follows: Parent is duly organized, validly existing and in
good standing under the laws of the jurisdiction of its
formation. Parent has all requisite corporate power and authority to
execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Parent of this
Agreement and consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of Parent. Parent
has duly executed and delivered this Agreement, and this Agreement constitutes
the legal, valid and binding obligation of Parent, enforceable against Parent in
accordance with its terms. The execution and delivery by Parent of
this Agreement do not, and the consummation of the transactions contemplated
hereby and compliance with the terms hereof will not, conflict with, or result
in any violation of, or default (with or without notice or lapse of time, or
both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or result
in the creation of any Lien upon any of the properties or assets of Parent
under, (i) any provision of any contract or agreement to which Parent is a party
or by which any properties or assets of Parent are bound or (ii) subject to the
filings and other matters referred to in the next sentence, any provision of any
Order or Law applicable to Parent or the properties or assets of
Parent. No consent or approval of, or registration, declaration or
filing with, any Governmental Entity is required to be obtained or made by or
with respect to Parent in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby, other than such reports, if any, under Sections 13(d) and
16 of the Exchange Act as may be required in connection with this Agreement and
the transactions contemplated hereby.
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SECTION
3. Representations and
Warranties of the Company. The Company hereby represents and
warrants to the Stockholder and Parent as follows: The Company is duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its formation. The Company has all requisite
corporate power and authority to execute and deliver this Agreement and to
consummate the transactions contemplated hereby. The execution and
delivery by the Company of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary actions on the
part of the Company. The Company has duly executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of the Company, enforceable against the Company in accordance with
its terms. The execution and delivery by the Company of this
Agreement do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under, or give rise to a right of termination, cancellation or acceleration of
any obligation or to loss of a material benefit under, or result in the creation
of any Lien upon any of the properties or assets of the Company under, (i) any
provision of any contract or agreement to which the Company is a party or by
which any properties or assets of the Company are bound or (ii) any provision of
any Order or Law applicable to the Company or the properties or assets of the
Company. No consent or approval of, or registration, declaration or
filing with, any Governmental Entity is required to be obtained or made by or
with respect to the Company in connection with the execution, delivery and
performance of this Agreement or the consummation of the transactions
contemplated hereby.
SECTION
4. Covenants of the
Stockholder. The Stockholder covenants and agrees as
follows:
(a) At any
meeting of the stockholders of the Company, and at any adjournment or
postponement thereof, called to seek the Company Stockholder Approval or in any
other circumstances upon which a vote, consent or other approval (including by
written consent) with respect to the Merger Agreement, the Merger or any other
transaction contemplated by the Merger Agreement is sought, the Stockholder
shall, including by executing a written consent solicitation if requested by
Parent, vote (or cause to be voted), in person or by proxy, the Subject Shares
in favor of (i) granting the Company Stockholder Approval and (ii) any proposal
to adjourn any meeting of the stockholders of the Company which Parent
supports.
(b) At any
meeting of stockholders of the Company or at any adjournment thereof or in any
other circumstances upon which the Stockholder’s vote, consent or other approval
is sought, the Stockholder shall vote (or cause to be voted) the Subject Shares
against (i) any merger agreement or merger (other than the Merger Agreement and
the Merger), share exchange, consolidation, combination, dual listed structure,
sale of substantial assets, issuance of securities, reorganization,
recapitalization, dissolution, liquidation, winding up or other extraordinary
transaction of or by the Company, (ii) any Alternative Proposal (other than a
Superior Proposal) and (iii) any amendment of the Company’s certificate of
incorporation or the Company’s by-laws or other proposal or transaction
involving the Company or any Subsidiary of the Company, which amendment or other
proposal or transaction would in any manner impede, frustrate, prevent or
nullify any provision of the Merger Agreement or any other agreement
contemplated by the Merger Agreement, the Merger or any other transaction
contemplated by the Merger Agreement or change in any manner the voting rights
of any class of Company Capital Stock. The Stockholder shall not
commit or agree to take any action inconsistent with the foregoing.
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(c) The
Stockholder hereby irrevocably grants to, and appoints, Parent, and any
individual designated in writing by Parent, and each of them individually, as
the Stockholder’s proxy and attorney-in-fact (with full power of substitution),
for and in the name, place and stead of the Stockholder, to vote the Subject
Shares, or grant a consent or approval in respect of the Subject Shares in a
manner consistent with this Section
4. The Stockholder understands and acknowledges that Parent is
entering into the Merger Agreement in reliance upon the Stockholder’s execution
and delivery of this Agreement. The Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 4(c) 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 the
Stockholder under this Agreement. The Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. The Stockholder hereby ratifies and
confirms all that such irrevocable proxy may lawfully do or cause to be done by
virtue hereof. Such irrevocable proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of the
DGCL. The irrevocable proxy granted hereunder shall automatically
terminate upon the termination of Sections 4(a) and
4(b).
(d) Other
than as expressly permitted by this Agreement, the Stockholder shall not (i)
sell, transfer, pledge, tender, assign or otherwise dispose of (including by
gift) (collectively, “Transfer”), or enter
into any contract, option, agreement, understanding or other arrangement
(including any profit sharing arrangement) with respect to the Transfer of, any
Subject Shares to any person other than pursuant to the Merger,
(ii) convert any of the shares of Company Convertible Preferred Stock
in accordance with the terms thereof or (iii) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, with respect to any Subject
Shares and shall not commit or agree to take any of the foregoing
actions.
(e) The
Stockholder shall not, nor shall it authorize or permit any shareholder,
affiliate or limited or general partner of the Stockholder or any of their
respective Representatives to, (i) solicit, initiate or knowingly encourage or
facilitate any Alternative Proposal, (ii) enter into any agreement or agreement
in principle with respect to an Alternative Proposal or enter into any agreement
requiring the Company to abandon, terminate or fail to consummate the Merger or
breach its obligations under Section 4.3 of the Merger Agreement or (iii) engage
in, participate in or continue in any way any negotiations or discussions
regarding, or furnish or disclose to any third party any information with
respect to, any Alternative Proposal. The Stockholder shall promptly,
and in any event within forty-eight (48) hours, advise Parent orally and in
writing of the receipt of any Alternative Proposal or any inquiry that would
reasonably be expected to lead to any Alternative Proposal, the identity of the
person making any such Alternative Proposal and a copy of such Alternative
Proposal (or, where no such copy is available, a written description of the
principal terms and conditions thereof).
(f) The
Stockholder shall use its reasonable best 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. The Stockholder shall not issue any press release or make
any other public statement with respect to the Merger or any other transaction
contemplated by the Merger Agreement without the prior consent of Parent, except
as may be required by Law.
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(g) The
Stockholder hereby consents to and approves the actions taken by the Company
Board in approving the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement. The Stockholder hereby waives,
and agrees not to exercise or assent, any appraisal rights under Section 262 of
the DGCL in connection with the Merger.
SECTION
5. Termination. This
Agreement shall terminate upon the earliest of (i) the mutual consent of the
parties hereto and (ii) the termination of the Merger Agreement in accordance
with its terms.
SECTION
6. Redemption of Company
Convertible Preferred Stock. The Stockholder agrees in favor
of Parent and the Company that, notwithstanding any provisions to the contrary
of the Certificate of Designation setting forth the terms of the Company
Convertible Preferred Stock (the “Certificate of
Designation”), at the Effective Time all outstanding shares of Company
Convertible Preferred Stock shall be redeemed by the Company in exchange for the
payment of the Change of Control Price (as such term is defined in the
Certificate of Designation) (such aggregate payment, the “Convertible Redemption
Payment. Without limiting the generality of the foregoing, the
Stockholder (i) hereby exercises its right pursuant to Section 6(c) of the
Certificate of Designation, conditional upon the occurrence of the Closing, to
require the Company to redeem all outstanding shares of the Company Convertible
Preferred Stock in cash at the Change of Control Price, (ii) waives receipt of
the Change of Control Notice (as defined in the Certificate of Designation) and
(iii) agrees that if the Closing shall occur, the “redemption date” referred to
in Section 6(c) of the Certificate of Designation shall be the Closing Date for
all purposes hereunder and under the Certificate of
Designation. Schedule B hereto
sets forth the Convertible Redemption Payment that would be payable if the
Closing were to take place on each day beginning on the date hereof and ending
on the Outside Date.
SECTION
7. Additional
Matters.
(a) The
Stockholder shall, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents, documents and other
instruments as Parent may reasonably request for the purpose of effectively
carrying out the transactions contemplated by this Agreement.
(b) Stockholder
acknowledges (i) the maximum aggregate liability of Parent and Merger Sub set
forth in Section 6.3(c) of the Merger Agreement and (ii) that neither it nor the
Company is a party to, or has any rights under, the equity commitment letter
entered into between ACAS and Parent. For the avoidance of doubt,
nothing in this paragraph or the Merger Agreement shall limit the obligations of
the Company and Parent to pay the Convertible Redemption Payment upon the
Closing of the Merger.
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SECTION
8. General
Provisions.
(a) Amendments. This
Agreement may not be amended except by an instrument in writing signed by each
of the parties hereto.
(b) Notice. All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier (providing
proof of delivery) to Parent in accordance with Section 7.3 of the Merger
Agreement and to the Stockholder at its address set forth on Schedule A hereto
(or at such other address for a party as shall be specified by like
notice).
(c) Interpretation. When
a reference is made in this Agreement to Sections, such reference shall be to a
Section of this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Each
party hereto has participated in the drafting of this Agreement, which each
party acknowledges and agrees is the result of extensive negotiations among the
parties. Wherever the words “include”, “includes” or “including” are
used in this Agreement, they shall be deemed to be followed by the words
“without limitation”.
(d) Severability. Any
term or provision of this Agreement which is invalid or unenforceable in any
jurisdiction shall, as to that jurisdiction, be ineffective to the sole extent
of such invalidity or unenforceability without rendering invalid or
unenforceable the remainder of such term or provision or the remaining terms and
provisions of this Agreement in any jurisdiction. If any provision of
this Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
(e) Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement. This Agreement shall become
effective against Parent when one or more counterparts have been signed by
Parent and delivered to the Stockholder. This Agreement shall become
effective against the Stockholder when one or more counterparts have been
executed by the Stockholder and delivered to Parent. Each party need
not sign the same counterpart.
(f) Entire Agreement; No
Third-Party Beneficiaries. This Agreement (i) constitutes
the entire agreement and supersedes all prior agreements and understandings,
both written and oral, among the parties with respect to the subject matter
hereof and (ii) is not intended to confer upon any person other than the parties
hereto any rights or remedies hereunder.
(g) Governing
Law. This Agreement shall be governed by and construed in
accordance with the Laws of the State of Delaware, without giving effect to any
choice or conflict of law provision or rule (whether of the State of Delaware or
any other jurisdiction) that would cause the application of the Laws of any
jurisdiction other than the State of Delaware.
(h) Assignment; Binding
Effect. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, by Parent without the prior written
consent of the Stockholder or by the Stockholder without the prior written
consent of Parent, and any purported assignment without such consent shall be
void. Subject to the preceding sentences, this Agreement will be
binding upon, inure to the benefit of, and be enforceable by, the parties and
their respective successors and assigns.
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(i) Enforcement. The
parties recognize and agree that if for any reason any of the provisions of this
Agreement are not performed in accordance with their specific terms or are
otherwise breached, immediate and irreparable harm or injury would be caused for
which money damages would not be an adequate remedy. Accordingly, each party
agrees that, in addition to other remedies, prior to any termination of this
Agreement, the parties shall be entitled to specific performance of the terms
hereof, in addition to any other remedy at law or equity. In
addition, each of the Parties hereto irrevocably agrees that any legal action or
proceeding with respect to this Agreement and the rights and obligations arising
hereunder, or for recognition and enforcement of any judgment in respect of this
Agreement and the rights and obligations arising hereunder brought by the other
party hereto or its successors or assigns, shall be brought and determined
exclusively in the Delaware Court of Chancery, or in the event (but only in the
event) that such court does not have subject matter jurisdiction over such
action or proceeding, in the United States District Court for the District of
Delaware. Each of the parties hereto hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and 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 hereby irrevocably waives, and agrees not to assert, by way of
motion, as a defense, counterclaim or otherwise, in any action or proceeding
with respect to this Agreement, (i) any claim that it is not personally subject
to the jurisdiction of the above-named courts for any reason other than the
failure to serve in accordance with this Section 8(i), (ii)
any claim that it or its property is exempt or immune from jurisdiction of any
such court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise) and (iii) to the fullest extent
permitted by the applicable Law, any claim that (x) the suit, action or
proceeding in such court is brought in an inconvenient forum, (y) the venue of
such suit, action or proceeding is improper or (z) this Agreement, or the
subject matter of this Agreement, may not be enforced in or by such
courts.
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IN
WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date
first written above.
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TU
HOLDINGS, INC.
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By:
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Name:
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Title:
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MERISEL,
INC.
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By:
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Name:
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Title:
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STONINGTON
CAPITAL APPRECIATION 1994 FUND, L.P.
By: Stonington
Partners, L.P., its general partner
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By: Stonington
Partners, Inc. II, its general partner
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By:
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Name:
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Title:
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PHOENIX
ACQUISITION COMPANY II, L.L.C.
By:
Stonington Capital Appreciation 1994 Fund,L.P., its sole
member
By:
Stonington Partners, L.P., its general partner
By:
Stonington Partners, Inc. II, its general partner
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By:
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Name:
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Title:
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