SHAREHOLDER VOTING AND ALLOCATION AGREEMENT
EXHIBIT 2.2
SHAREHOLDER VOTING AND ALLOCATION AGREEMENT
This Shareholder Voting and Allocation Agreement (the “Agreement”), effective the day of August, 2004, by and among those individuals and entities named as Shareholders (as defined below) on the signature pages hereto (each a “Shareholder” and collectively the “Shareholders”) and PRESCIENT SYSTEMS, INC., a Pennsylvania corporation (the “Company”).
WHEREAS, the Company, The viaLink Company, a Delaware corporation (“Parent”), and viaLink Acquisition, Inc., a Pennsylvania corporation have entered into an Agreement and Plan of Merger (as it has been and may be modified or amended from time to time, the “Merger Agreement”); and
WHEREAS, the Shareholders have reviewed the Merger Agreement; and
inter alia, that the Merger shall be deemed, at the election of the holders of 51% of the outstanding shares of Series B or Series C preferred stock, to be a liquidation, dissolution or winding up of the Company giving rise to the rights and privileges set forth in the Series B and C Designations in respect thereof for the benefit of the holders of the Series B and Series C preferred stock and, accordingly, the rights and privileges set forth in the Series A Statement of Designation, Preferences and Rights (“Series A Designation”) in respect thereof for the benefit of the holders of Series A preferred stock; and
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stock and options and warrants to purchase shares of common stock (the "Negotiated Allocation”), which Negotiated Allocation is embodied in Schedule A to this Agreement; and
(a) in favor of the approval of the Merger Agreement, including the Negotiated Allocation and the Merger contemplated thereby, and adoption of the Plan of Merger set forth therein at the Special Meeting and in connection with any written consent of shareholders in lieu of a meeting;
(b) against any other action or agreement (other than the Merger Agreement or the Merger contemplated thereby) that could reasonably be expected to impede, interfere with or delay the Merger, the Merger Agreement or this Agreement, including without limitation any attempt by any person to invoke or vote upon any clause of Prescient’s articles of incorporation or proposal which could cause the Merger to be
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deemed to be or treated as a liquidation, dissolution or winding up of the corporation under the terms and designations of any of Prescient’s classes or series of stock; and
(c) in favor of the amendment of the Company’s Articles of Incorporation (including the amendment of each of the Series A, Series B and Series C Designations) to eliminate the accrual of dividends beyond October 15, 2003 on the Series A, Series B and Series C preferred stock in the event the Merger is consummated.
(a) Each Shareholder approves in respect of themselves and all other Shareholders and agrees to accept and abide by the allocation and distribution of viaLink common stock, Series E preferred stock, Series F preferred stock and warrants to purchase shares of viaLink common stock (in the aggregate, together with the viaLink common stock to be issued in exchange for certain Prescient warrants and the viaLink common stock options to be issued to holders of certain Prescient common stock options, constituting the Merger Consideration as defined in the Merger Agreement) set forth as Schedule A of this Agreement, to be issued in connection with and upon consummation of the Merger.
(b) Each Shareholder understands and agrees that 180,510 shares of viaLink common stock, which constitute part of the Merger Consideration and which otherwise would be distributed to the shareholders of Prescient (including the Shareholders) pursuant to the Merger, shall be issued (i) 14,400 shares to the holders of Prescient warrants, which have exercise prices of $1.13 to $2.275 per share and expiration dates of September 30, 2005 to October 18, 2008, to purchase Prescient common stock in
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exchange for and extinguishment of said warrants and (ii) 166,110 shares to the holders of Prescient In-the-Money Options.
(c) Each Shareholder understands and agrees that prior to the effective date of the Merger the holders of Prescient $.01 warrants (being warrants to purchase Prescient common stock for and in consideration of the payment to Prescient of $.01 per share of Prescient common stock purchasable upon the exercise of said warrants) shall exercise such warrants and receive an aggregate of 3,374,910 shares of Prescient common stock, which, in turn, shall be converted pursuant to the Merger into viaLink common stock along with all other outstanding shares of Prescient common stock.
3. Not a Liquidation Event. The Shareholders expressly waive any right they may have, individually or collectively, to treat the Merger as, or to have it deemed to be or constitute, a dissolution, liquidation or winding up of the Company, whether under the Company’s Articles of Incorporation or otherwise. Each Shareholder understands and agrees that under the terms of this Agreement such Shareholder shall not be entitled to receive the Merger Consideration (or part thereof) such Shareholder otherwise would receive if the Merger Consideration were allocated in accordance with the terms of the Company’s Articles of Incorporation including, without limitation, any election by the holders of shares of any class or series to deem the Merger a liquidation, dissolution or winding up of the corporation.
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Each holder of Series A preferred stock, Series B preferred stock and Series C preferred stock understands and agrees that under the terms of this Agreement it shall not be entitled to accrual or receipt of any dividends of any kind including, without limitation, payment-in-kind dividends, that otherwise would accrue to the holders of Series A preferred stock, Series B preferred stock and Series C preferred stock after October 15, 2004.
(a) Ownership of Securities. Such Shareholder is the record and beneficial owner of the number of shares of Series A preferred stock, Series B preferred stock, Series C preferred stock, common stock or warrants to purchase shares of common stock of Prescient set forth on Schedule A attached hereto (together with any shares of any class or series of Prescient stock or warrants to purchase shares of any class or series of Prescient stock hereafter acquired by such Shareholder, the “Subject Securities”). Such Shareholder has and will maintain until the termination of this Agreement sole voting power and sole power to issue instructions with respect to the voting of the Subject Securities, sole power of disposition, sole power of exercise or conversion and the sole power to demand appraisal rights, in each case with respect to all of the Subject
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Securities. As of the date hereof, such Shareholder does not beneficially or of record own any Shares other than those set forth on Schedule A.
(b) Power; Binding Agreement. Such Shareholder has the legal capacity, power and authority to enter into and perform all of such Shareholder’s obligations under or in respect of this Agreement. The execution, delivery and performance of this Agreement by such Shareholder will not violate any agreement to which such Shareholder is a party including, without limitation, any trust agreement, voting agreement, shareholders’ agreement, loan agreement, security agreement or voting trust. This Agreement has been duly and validly authorized, executed and delivered by such Shareholder and constitutes the valid and binding agreement of such Shareholder, enforceable against such Shareholder in accordance with its terms, except to the extent that enforceability may be limited by applicable bankruptcy, reorganization, insolvency, moratorium or other laws affecting the enforcement of creditors’ rights generally and by general principles of equity, regardless of whether such enforceability is considered in a proceeding at law or in equity.
(c) No Conflicts. Neither the execution and delivery of this Agreement by such Shareholder nor the consummation by such Shareholder of the transactions contemplated hereby nor compliance by such Shareholder with any of the provisions hereof shall conflict with or result in any breach of any applicable partnership or other organizational documents applicable to such Shareholder, result in a violation or breach of, or constitute (with or without notice or lapse of time or both) a default (or give rise to any third-party right of termination, cancellation, material modification or acceleration) under any of the terms, conditions or provisions of any note, bond, mortgage, indenture,
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license, contract, commitment, arrangement, understanding, agreement or other instrument or obligation of any kind to which such Shareholder is a party or by which such Shareholder or such Shareholder’s properties or assets may be bound, or violate any order, writ, injunction, decree, judgment, statute, law, rule or regulation applicable to such Shareholder or any of such Shareholder’s properties or assets.
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(a) Any provision of this Agreement may be amended or waived prior to the Effective Time if, and only if, such amendment or waiver is in writing and signed, in the case of an amendment, by the Shareholders and the Company, or in the case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or privilege hereunder shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
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[SIGNATURE PAGES FOLLOW]
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PRESCIENT SYSTEMS, INC. a Pennsylvania corporation |
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By: | ||||
Name: | ||||
Title: | ||||
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Shareholder | ||||||
Name (Print) | ||||||
Number and Class of | ||||||
Shares Owned of Record | ||||||
Signature | ||||||
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