EXHIBIT 2.2
FORM OF COMPANY VOTING AGREEMENT
VOTING AGREEMENT, dated as of December 3, 2004 (this "AGREEMENT"), between
Selectica, Inc., a Delaware corporation ("PARENT"), and ________________
("STOCKHOLDER"), a stockholder of I-Many, Inc., a Delaware corporation (the
"COMPANY").
W I T N E S S E T H :
WHEREAS, Parent, Indigo Merger Corporation, a Delaware corporation and a
wholly owned subsidiary of Parent ("MERGER SUB"), and the Company have entered
into, simultaneously herewith, an Agreement and Plan of Merger (the "MERGER
AGREEMENT") pursuant to which the Merger Sub will merge with and into the
Company (the "MERGER");
WHEREAS, as of the date hereof, Stockholder owns of record or has the
power to vote, or direct the vote of, the number of shares of common stock, par
value $0.0001 per share, of the Company (the "COMPANY COMMON STOCK"), as set
forth on the signature page hereto (all such Company Common Stock and any shares
of Company Common Stock of which ownership of record or the power to vote is
hereafter acquired by Stockholder prior to the termination of this Agreement
being referred to herein as the "SHARES") (capitalized terms not otherwise
defined in this Agreement shall have the same meaning as in the Merger
Agreement); and
WHEREAS, as a condition of and inducement to Parent's execution of the
Merger Agreement, Stockholder has agreed to enter into this Agreement;
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, the parties hereto agree as follows:
ARTICLE I
TRANSFER AND VOTING OF SHARES
SECTION 1.01 TRANSFER OF SHARES. Except as otherwise consented to in
writing by Parent (which shall not be unreasonably withheld), Stockholder shall
not, directly or indirectly, (a) sell, pledge, encumber, transfer or otherwise
dispose of any or all of the Shares or any interest in such Shares, except
pursuant to the Merger Agreement and except pursuant to the terms of a trading
plan adopted pursuant to Rule 10b5-1 under the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT"), in effect prior to the date hereof, (b) deposit
any Shares or any interest in such Shares into a voting trust or enter into a
voting agreement or arrangement with respect to any Shares or grant any proxy
with respect thereto (other than as contemplated hereunder), or (c) enter into
any contract, commitment, option or other arrangement or undertaking (other than
as contemplated by the Merger Agreement) with respect to the direct or indirect
acquisition or sale, assignment, pledge, encumbrance, transfer or other
disposition of any Shares (each of the above, a "TRANSFER"); provided that the
foregoing shall not restrict Transfers
(i) to a member of Stockholder's immediate family or (ii) which occur by
operation of law, in either case so long as such transferee agrees to be bound
by this Agreement.
SECTION 1.02 VOTE IN FAVOR OF MERGER. During the period commencing on the
date hereof and terminating at the Effective Time, Stockholder, solely in
Stockholder's capacity as a Stockholder of the Company and without limiting any
action that the Stockholder might take as an officer or a director of the
Company or as a member of any committee of the Board of Directors of the
Company, agrees to vote (or cause to be voted) all of the Shares at any meeting
of the stockholders of the Company or any adjournment thereof (i) in favor of
the adoption of the Merger Agreement by the Company and in favor of the other
transactions contemplated by the Merger Agreement and (ii) against any merger,
consolidation, sale of assets, recapitalization or other business combination
involving the Company (other than the Merger) or any other action or agreement
that would result in a material breach of any covenant, representation or
warranty or any other obligation or agreement of the Company under the Merger
Agreement or which would result in any of the conditions to the Company's
obligations under the Merger Agreement not being fulfilled.
SECTION 1.03 GRANT OF IRREVOCABLE PROXY. Concurrently with the execution
of this Agreement, Stockholder agrees to deliver to Parent a proxy with respect
to the Shares in the form attached hereto as EXHIBIT A (the "PROXY"), which
shall be irrevocable to the fullest extent permissible by law.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
SECTION 2.01 AUTHORIZATION; BINDING AGREEMENT. Stockholder has all legal
right, power, authority and capacity to execute and deliver this Agreement and
the Proxy and to perform its obligations contemplated hereby and thereby. This
Agreement and the Proxy have been duly and validly executed and delivered by or
on behalf of Stockholder and each constitutes a legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms, subject to (i) the effect of any applicable bankruptcy, insolvency,
moratorium or similar law affecting creditors' rights generally and (ii) rules
of law governing specific performance, injunctive relief and other equitable
remedies.
SECTION 2.02 NO CONFLICT; REQUIRED FILINGS AND CONSENTS.
(a) The execution and delivery of this Agreement and the grant of
the Proxy to Parent by Stockholder does not, and the performance of this
Agreement and the exercise of the Proxy by Parent will not, (i) conflict with or
violate any Law applicable to Stockholder or by which Stockholder or any of
Stockholder's properties is bound or (ii) result in or constitute (with or
without notice or lapse of time or both) any breach of or default under, or give
to another party any right of termination, amendment, acceleration or
cancellation of, or result in the creation of any Lien (other than Permitted
Liens) on any of the property or assets of Stockholder pursuant
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to, any material note, bond, mortgage, indenture, contract, agreement, lease,
license, permit, franchise or other instrument or obligation to which
Stockholder is a party or by which Stockholder or any of Stockholder's
properties is bound. There is no beneficiary or holder of a voting trust
certificate or other interest of any trust of which Stockholder is a trustee
whose consent is required for the execution and delivery of this Agreement or
the consummation by Stockholder of the transactions contemplated by this
Agreement.
(b) The execution and delivery of this Agreement and the grant of
the Proxy to Parent by Stockholder does not, and the performance of this
Agreement and the exercise of the Proxy by Parent will not, require any consent,
approval, authorization or permit of, or filing with or notification to, any
third party or any Governmental Entity except (i) for applicable requirements,
if any, of the Exchange Act and (ii) where the failure to obtain such consents,
approvals, authorizations or permits, or to make such filings or notifications,
could not prevent or delay the performance by Stockholder of Stockholder's
obligations under this Agreement. Stockholder does not have any understanding in
effect with respect to the voting or transfer of any Shares.
SECTION 2.03 TITLE TO SHARES. Stockholder is the record owner of, or has
the power to vote, or direct the vote of, the Shares, free and clear of all
Liens (other than Permitted Liens), proxies or voting restrictions except (i) as
set forth on Schedule 2.03 hereof and (ii) pursuant to this Agreement. The
shares of Company Common Stock, including options, warrants or other rights to
acquire such stock, set forth on the signature page hereto are all the
securities of the Company owned, directly or indirectly, of record by
Stockholder, or as to which Stockholder has the power to vote, or direct the
vote of, on the date of this Agreement.
ARTICLE III
COVENANTS OF STOCKHOLDER
SECTION 3.01 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall execute and deliver, or cause to be executed
and delivered, such additional proxies and other instruments as Parent may
reasonably request for voting the Shares in accordance with Section 1.02 of this
Agreement.
SECTION 3.02 DISCLOSURE. Stockholder hereby agrees to permit the Company
and Parent to publish and disclose in the Proxy Statement (including all
documents and schedules filed with the SEC in connection with the Merger), and
in any press release or other disclosure document in connection with the Merger
in which the Company or Parent reasonably determines in its good faith judgment
that such disclosure is required by law, including the rules and regulations of
the SEC, or appropriate, in connection with the Merger and any transactions
related thereto, Stockholder's identity and ownership of the Shares and the
nature of Stockholder's commitments, arrangements and understandings under this
Agreement.
SECTION 3.03 PUBLIC ANNOUNCEMENT. Stockholder, solely in Stockholder's
capacity as a Stockholder and not as an officer or director of the Company,
agrees to not make any public announcement in opposition to, or in competition
with, the Merger Agreement or the consummation of the Merger.
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SECTION 3.04 ADDITIONAL SHARES. In the event that Stockholder becomes the record
holder of, or acquires the power to vote, or direct the vote of, any additional
Shares, such Shares shall, without further action of the parties, be subject to
the provisions of this Agreement and the Proxy, and the number of Shares set
forth on the signature page hereto and thereto will be deemed amended
accordingly. If Stockholder acquires additional Shares, Stockholder shall
promptly notify Parent in writing of such acquisition.
ARTICLE IV
GENERAL PROVISIONS
SECTION 4.01 LIMITATION. Notwithstanding anything herein to the contrary,
the covenants and agreements set forth herein shall not prevent Stockholder, if
Stockholder is serving on the Board of Directors of the Company, from exercising
his or her duties and obligations as a director of the Company, or otherwise
taking any action while acting in such capacity.
SECTION 4.02 ENTIRE AGREEMENT. This Agreement and the Proxy constitute the
entire agreement of the parties with respect of the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, between
the parties, or any of them, with respect to the subject matter hereof. This
Agreement may not be amended or modified except in an instrument in writing
signed by, or on behalf of, the parties hereto.
SECTION 4.03 SURVIVAL OF REPRESENTATIONS AND WARRANTIES. Claims arising
from breaches of the representations and warranties made by Stockholder in this
Agreement shall survive any termination of the Merger Agreement or this
Agreement for six months.
SECTION 4.04 TERMINATION. The obligations of Stockholder pursuant to this
Agreement and the Proxy shall terminate upon the earlier of (i) the Effective
Time and (ii) the date of the termination of the Merger Agreement pursuant to
Section 8.01 thereof.
SECTION 4.05 ASSIGNMENT. The provisions of this Agreement shall be binding
upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns; provided that except as otherwise provided
herein, any assignment, delegation or attempted transfer any of rights,
interests or obligations under this Agreement by Stockholder without the prior
written consent of Parent shall be void.
SECTION 4.06 FEES AND EXPENSES. All costs and expenses (including, without
limitation, all fees and disbursements of counsel, accountants, investment
bankers, experts and consultants to a party) incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such costs and expenses.
SECTION 4.07 NOTICES. All notices and other communications given or made
pursuant hereto shall be in writing and shall be deemed effectively given: (i)
upon personal delivery to the party to be notified, (ii) when sent by confirmed
electronic mail or facsimile if sent during normal business hours of the
recipient; if not, then on the next business day, (iii) five (5) days after
having been sent by registered or certified mail, return receipt requested,
postage prepaid, or (iv) one (1) day after deposit with a nationally recognized
overnight courier, specifying next
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day delivery, with written verification of receipt. All communications shall be
sent to the respective parties at the following addresses (or at such other
addresses as shall be specified by notice given in accordance with this Section
4.07):
(a) if to Parent:
Selectica, Inc.
0 Xxxx Xxxxxxxx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxxx, President and Chief Executive
Officer
Facsimile No.: (000) 000-0000
with a copy to:
Xxxxxxxxx Xxxxxxx Xxxxxx Xxxxxxxxxx Xxxxxxxx & Xxxxxxxxx, LLP
000 Xxxxxxxxxxxx Xxxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx Xxxxxx and Xxxxxxxxxxx X. Xxxxxx
Facsimile No.:(000) 000-0000
(b) If to the Stockholder to:
[__________________________________]
[__________________________________]
[__________________________________]
Facsimile No.:
with a copy to:
Proskauer Rose LLP
0000 Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx
Facsimile No.: (000) 000-0000
SECTION 4.08 HEADINGS. 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.
SECTION 4.09 SEVERABILITY. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in
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good faith to modify this Agreement so as to effect the original intent of the
parties as closely as possible to the fullest extent permitted by applicable law
in an acceptable manner.
SECTION 4.10 SPECIFIC PERFORMANCE. The parties agree that irreparable
damage would occur if any of the provisions of this Agreement is not performed
in accordance with its specific terms or is otherwise breached. Stockholder
agrees that, following any breach or threatened breach by Stockholder of any
covenant or obligation contained in this Agreement, Parent shall be entitled (in
addition to any other remedy that may be available to it, including monetary
damages) to seek and obtain (a) a decree or order of specific performance to
enforce the observance and performance of such covenant or obligation and (b) an
injunction restraining such breach or threatened breach. Stockholder further
agrees that neither Parent nor any other party shall be required to obtain,
furnish or post any bond or similar instrument in connection with or as a
condition to obtaining any remedy referred to in this Section 4.10, and
Stockholder irrevocably waives any right he may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
SECTION 4.11 GOVERNING LAW. This Agreement shall be construed in
accordance with, and governed in all respects by, the laws of the State of
Delaware, without giving effect to principles of conflicts of laws. Each party
hereby irrevocably submits to the exclusive jurisdiction of the Court of
Chancery in the State of Delaware in any action, suit or proceeding arising in
connection with this Agreement, and agrees that any such action, suit or
proceeding shall be brought only in such court (and waives any objection based
on forum non conveniens or any other objection to venue therein); provided,
however, that such consent to jurisdiction is solely for the purpose referred to
in this Section 4.11 and shall not be deemed to be a general submission to the
jurisdiction of such court or in the State of Delaware other than for such
purposes.
SECTION 4.12 NO WAIVER. 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. Parent shall not
be deemed to have waived any claim available to it arising out of this
Agreement, or any right, power or privilege hereunder, unless the waiver is
expressly set forth in writing duly executed and delivered on behalf of Parent.
The rights and remedies herein provided shall be cumulative and not exclusive of
any rights or remedies provided by law.
SECTION 4.13 COUNTERPARTS. This Agreement may be executed in one or more
counterparts, and by the different parties hereto in separate counterparts, each
of which when executed shall be deemed to be an original but all of which taken
together shall constitute one and the same agreement.
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IN WITNESS WHEREOF, each of Parent and Stockholder has executed or has
caused this Agreement to be executed by their duly authorized officer as of the
date first written above.
SELECTICA, INC.
By: ------------------------------------------
Name:
Title:
STOCKHOLDER
______________________________________________
Print Name of Stockholder:____________________
Shares owned of record, or as to which
Stockholder has the power to vote or direct
the vote of:
_____________ shares of Company Common Stock
_____________ shares of Company Common Stock
issuable upon exercise of
outstanding options or warrants
SIGNATURE PAGE TO COMPANY VOTING AGREEMENT
Schedule 2.03
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder ("STOCKHOLDER") of I-Many, Inc., a Delaware
corporation (the "COMPANY"), hereby irrevocably (to the fullest extent permitted
by law) appoints the directors on the Board of Directors of Selectica, Inc., a
Delaware corporation ("PARENT"), and each of them, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the full
extent that the undersigned is entitled to do so) with respect to all of the
shares of capital stock of the Company that now are or hereafter may be owned of
record by the undersigned, and as to which the undersigned now has or hereafter
may acquire the power to vote, or direct the vote of (collectively, the
"SHARES"), in accordance with the terms of this Proxy. The Shares owned of
record by the undersigned stockholder of the Company, and the Shares the
undersigned stockholder of the Company has the power to vote, or direct the vote
of, as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Voting
Agreement of even date herewith by and among Parent and Stockholder (the "VOTING
AGREEMENT"), and is granted to induce Parent to enter into that certain
Agreement and Plan of Merger (the "MERGER AGREEMENT"), among Parent, Indigo
Merger Corporation, a Delaware corporation and a wholly owned subsidiary of
Parent ("MERGER SUB"), and the Company. The Merger Agreement provides for the
merger of Merger Sub with and into the Company in accordance with its terms (the
"MERGER"). As used herein, the term "EXPIRATION DATE" shall mean the earlier to
occur of (i) such date and time as the Merger Agreement shall have been validly
terminated pursuant to Section 8.01 thereof or (ii) such date and time as the
Merger shall become effective in accordance with the terms and provisions of the
Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares at every annual, special or adjourned meeting of stockholders of
the Company (i) in favor of the adoption of the Merger Agreement by the Company
and in favor of the other transactions contemplated by the Merger Agreement and
(ii) against any merger, consolidation, sale of assets, recapitalization or
other business combination involving the Company (other than the Merger) or any
other action or agreement that would result in a material breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement or which would result in any of the
conditions to the Company's obligations under the Merger Agreement not being
fulfilled.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. Stockholder may vote the Shares on all
other matters. Any obligation of Stockholder hereunder shall be binding upon the
successors and assigns of Stockholder.
This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: December 3, 2004
Signature of Stockholder: ___________________________
Print Name of Stockholder: __________________________
Shares owned of record, or as to which Stockholder
has the power to vote or direct the vote of:
__________ shares of Company Common Stock
__________ shares of Company Common Stock issuable
upon exercise of outstanding options or
warrants
SIGNATURE PAGE TO IRREVOCABLE PROXY
