Contract
Exhibit
2.2
THIS
SHAREHOLDER VOTING AND SUPPORT AGREEMENT (this “Agreement”) is made and entered
into as of November 17, 2008, by and among Zones, Inc., a Washington corporation
(the “Company”) and the undersigned Shareholders, Xxxxx Xxxxx and Xxxxx Xxxxx
(each individually a “Shareholder” and collectively the
“Shareholders”).
RECITALS
WHEREAS,
the Company and Zones Acquisition Corporation, a Washington corporation (“Zac”)
previously entered into an Agreement and Plan of Merger dated July 30,
2008;
WHEREAS,
concurrent with the execution and delivery hereof, the Company and Zac, are
entering into the First Amendment to the Agreement and Plan of
Merger;
WHEREAS,
the Agreement and Plan of Merger, as amended by the First Amendment to the
Agreement and Plan of Merger, shall herein be referred to as the “Merger
Agreement” and the Merger as provided therein and as so amended therein shall be
referred to as the “Merger”;
WHEREAS,
as of the date hereof, the Shareholders and their respective Affiliates have
voting control over 6,683,540 shares of Company Common Stock (the “Minimum Share
Number”), and are the “beneficial owner” of all such shares within the meaning
of Rule 13d-3 under the Securities Exchange Act of 1934, as amended;
and
WHEREAS,
in consideration of the execution and delivery of the Merger Agreement by the
Company and in order to facilitate consummation of the Merger and the
transactions contemplated by the Merger Agreement, the Shareholders desire to
agree to vote all Shares (as defined below) over which each of them has voting
control in accordance with the terms hereof.
AGREEMENT
NOW,
THEREFORE, in consideration of the foregoing and the mutual covenants and
agreements herein and other good and valuable consideration, and intending to be
legally bound, the parties hereto hereby agree as follows:
1. Certain
Definitions.
(a) Capitalized
terms used herein without definition are used as defined in the Merger
Agreement, and, in addition:
“Constructive
Sale” means, with respect to any security, a short sale or entering into or
acquiring an offsetting derivative contract with respect to such security,
entering into or acquiring a futures or forward contract to deliver such
security or entering into any other hedging or other derivative transaction that
has the effect of materially changing the economic benefits and risks of
ownership of such security.
“Shares”
means: (i) all outstanding shares of Company Common Stock and other
voting securities of Company owned, beneficially or of record, by the
Shareholders and their respective Affiliates as of the date hereof, (ii) all
additional outstanding shares of Company Common Stock and other voting
securities of Company acquired by the Shareholders and their respective
Affiliates, beneficially or of record, during the period commencing with the
execution and delivery of this Agreement and expiring on the date on which this
Agreement terminates or is terminated pursuant to Section 6 hereof, and (iii)
such other outstanding shares of Company Common Stock and other voting
securities of Company over which each of the Shareholders and their respective
Affiliates has or will have voting power during the period commencing with the
execution and delivery of this Agreement and expiring on the date on which this
Agreement terminates or is terminated pursuant to Section 6 hereof.
“Transfer”
means, with respect to any security, the direct or
indirect: (i) assignment, sale, transfer, tender, pledge,
hypothecation, placement in voting trust, Constructive Sale or other disposition
of such security (excluding transfers by testamentary or intestate succession),
of any right, title or interest in such security (including, without limitation,
any right or power to vote to which the holder thereof may be entitled, whether
such right or power is granted by proxy or otherwise) or of the record or
beneficial ownership of such security, or (ii) offer to make any such sale,
transfer, tender, pledge, hypothecation, placement in voting trust, Constructive
Sale or other disposition, and each agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing, in each case,
excluding any (A) transfer, assignment, sale, pledge, hypothecation,
encumbrance or similar disposition pursuant to a court order, and (B) such
actions pursuant to which a Shareholder maintains all voting rights with respect
to such security.
(b) Any
singular term in this Agreement shall be deemed to include the plural, and any
plural term the singular. Whenever the words “include,” “includes” or
“including” are used in this Agreement, they shall be deemed followed by the
words “without limitation.” Zac is expressly acknowledged to be an Affiliate of
each of Xxxxx Xxxxx and Xxxxx Xxxxx. Any request or approval by the
Company provided for herein shall include any approval or request made by the
Special Committee of the Board of Directors of the Company.
2. Transfer
of Voting Rights. The Shareholders and their respective
Affiliates shall not Transfer (or permit the Transfer of), grant any proxy, or
enter into any voting agreement or similar agreement in contravention of the
obligations of the Shareholders under this Agreement with respect to any of the
Shares except for any Transfer by the Shareholder for estate planning purposes
to one or more transferees who expressly agree to be bound by the terms of this
Agreement.
3. Agreement
to Vote Shares. Each Shareholder, on behalf of the Shareholder
and each of their respective Affiliates, hereby agrees that until this Agreement
terminates or is terminated pursuant to Section 6 hereof, the Shareholders
shall:
(a) Appear
in person or by proxy at any meeting of shareholders of the Company, however
called, and at every adjournment or postponement thereof, or otherwise cause the
Shares to be counted as present for purposes of establishing a
quorum;
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(b) Vote
the Shares or cause the Shares to be voted at any meeting of shareholders of the
Company for the purpose of voting on the Merger, the Merger Agreement and the
transactions contemplated thereby, however called, and at every adjournment or
postponement thereof, in support of the Merger and in favor of adoption of the
Merger Agreement and the approval of the transactions contemplated thereby,
including any action reasonably necessary to waive any dissenters’ or appraisal
rights the Shareholder may have in respect of the transaction, and any action
required in furtherance thereof;
(c) Vote
the Shares or cause the Shares to be voted at any meeting of shareholders of the
Company, however called, and at every adjournment or postponement thereof,
against any action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Zac or the
Company under or in connection with the Merger or the Merger Agreement, and
against any amendment of the Company’s Articles of Incorporation or Bylaws or
other proposal, action or transaction involving the Company or any of its
Subsidiaries or any of its shareholders, which amendment or other proposal,
action or transaction would reasonably be expected to prevent, impede or delay:
(i) consummation of the Merger or the other transactions contemplated by the
Merger Agreement or (ii) consummation of the transactions contemplated herein or
thereby;
(d) Notwithstanding
the other provisions of this Section 3, upon the Company’s termination of
the Merger Agreement pursuant to and in accordance with the provisions of
Section 7.01(e) thereof in connection with a Superior Proposal, then, at
any meeting of the shareholders of the Company for the purpose of voting on the
Superior Proposal and the transactions contemplated thereby, however called, and
at every adjournment or postponement thereof, vote the Shares or cause the
Shares to be voted in favor of adoption of the Superior Proposal and approval of
the transactions contemplated thereby, including any action reasonably necessary
to waive any dissenters’ or appraisal rights the Shareholders may have in
respect of such transaction and any action required in furtherance
thereof.
(e) Upon
request by the Company: (i) furnish written confirmation, in form and substance
reasonably acceptable to the Company, of the Shareholders’ vote in favor of the
Merger and the Merger Agreement and the transactions contemplated thereby, or of
the Superior Proposal and the transactions contemplated thereby, as the case may
be, and (ii) prior to any vote contemplated by this Section 3, deliver promptly
to the Company an irrevocable proxy (with full power of substitution), for and
in the name, place and stead of the Shareholders, to vote, or cause to be voted,
the Shares, or grant a consent or approval in respect of the Shares, at every
meeting of shareholders of the Company (and at every adjournment and
postponement thereof), however called, with respect to the matters specified in
this Section 3. Each Shareholder hereby affirms that such irrevocable proxy is
given in connection with execution of the Merger Agreement, and to secure the
performance of the Shareholders’ obligations under this Agreement. The grant of
proxy contemplated hereby is coupled with an interest and may under no
circumstances be revoked, but shall automatically terminate and be of no further
force and effect upon termination pursuant to Section 6. Each Shareholder hereby
ratifies and confirms that such irrevocable proxy may lawfully do or cause to be
done in accordance herewith; and
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(f) At
any meeting of shareholders of the Company, however called, for the purpose of
voting on the Merger Agreement and the transactions contemplated thereby, vote
the Shares or cause the Shares to be voted for any adjournment of such meeting,
or other procedural action reasonably necessary to facilitate: (i) consummation
of the Merger or the other transactions contemplated by the Merger Agreement or
(ii) consummation of the transactions contemplated thereby.
4. Covenants
of the Shareholders. Each Shareholder, on behalf of the
Shareholder and each of their respective Affiliates, covenants and agrees with
the Company that, during the period commencing on the date hereof and ending on
the date this Agreement is terminated pursuant to Section 6 hereof:
(a) The
Shareholder and each of their respective Affiliates shall use reasonable best
efforts to take, or cause to be taken, all actions, and to do or cause to be
done, facilitate, and to assist and cooperate in doing, all things necessary,
proper and advisable to consummate and make effective, as promptly as
practicable, the Merger, the transactions and covenants of Zac under the Merger
Agreement, and the other matters contemplated by this Agreement;
(b) The
Shareholder and each of their respective Affiliates shall not: (i) take any
action which would make any representation or warranty of such Shareholder and
their Affiliates herein, or which would make any representation or warranty of
Zac in the Merger Agreement untrue or incorrect in any material respect, (ii)
knowingly take any action that would have the effect of preventing or disabling
the Shareholder and their Affiliates from performing their obligations under
this Agreement, nor (iii) take any action to frustrate the intent and purpose of
the Merger, the Merger Agreement, or this Agreement, including any action to
reconstitute the Board of Directors of the Company;
(c) Contemporaneous
with the Closing, Xxxxx hereby commits (i) subject to and in accordance with the
Xxxxx Commitment Letter (as defined in the Merger Agreement), to provide to Zac
up to $25 million, but no less than $20 million, for the purpose of funding a
portion of the required aggregate Merger Consideration and related expenses in
accordance with the Merger Agreement and (ii) to enter into the Remainder
Payment Guarantee with the Shareholder Representative;
(d)
The Shareholder shall take all actions necessary to adjourn the special meeting
of shareholders currently scheduled for November 19, 2008 to another date in
December 2008 as determined by the Company;
(e) The
Shareholder will, from time to time, execute and deliver, or cause to be
executed and delivered, such additional or further consents, documents and other
instruments, and take or cause to be taken all actions and do or cause to be
done all things, as are reasonably necessary for the purpose of effectively
carrying out the purposes of the transactions contemplated by this Agreement and
to ensure that the Company receives the benefit of this Agreement;
and
(f) The
Shares will be at all times free and clear of any liens, claims, encumbrances,
mortgages, security interests and charges of any nature whatsoever that could in
any way impair the ability of the Shareholders to perform their obligations
hereunder.
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5. Representations
and Warranties of the Shareholders. Each of the Shareholders,
and their respective Affiliates, hereby represents and warrants to the Company
as follows:
(a) The
Shareholders have the requisite power and authority to execute, deliver and
perform this Agreement and to consummate the transactions contemplated hereby.
The Shareholders are competent to execute and deliver this Agreement, to perform
their obligations hereunder and to consummate the transactions contemplated
hereby. The execution, delivery and performance of this Agreement by
the Shareholders and the consummation of the transactions contemplated hereby
have been duly authorized by all necessary action on the part of the
Shareholders and this Agreement has been duly executed and delivered by or on
behalf of the Shareholders and constitutes a valid and legally binding
obligation of the Shareholders, enforceable against each Shareholder in
accordance with its terms;
(b) The
Shareholders are the beneficial owner of 6,683,540 shares of Company Common
Stock and such Shares constitute the Shareholders’ entire interest in the
outstanding Company Common Stock. No person or entity not a signatory
to this Agreement has a beneficial interest in or a right to acquire the Shares
or any portion of the Shares. As of the date hereof, all of the Shares are free
and clear of any liens, claims, encumbrances, mortgages, security interests and
charges of any nature whatsoever; and
(c) The
execution and delivery of this Agreement by the Shareholders does not, and the
performance of this Agreement by the Shareholders will not, (i) require any
consent, approval, authorization or permit of, or filing with or notification
to, any Governmental Entity or any other person by the Shareholder, except (A)
as provided in the Merger Agreement, or (B) filings with the SEC of such reports
or other furnished or filed materials under the Exchange Act as may be required
in connection with the execution and delivery of this Agreement and the
transactions contemplated hereby; (ii) conflict with, or result in any violation
of, or default (with or without notice or lapse of time or both) under any
provision of, the Company’s Articles of Incorporation, Bylaws or any other
agreement to which any of the Shareholders are a party, including any prior
proxy, voting agreement, shareholder agreement, voting trust, trust agreement,
pledge agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise or license;
or (iii) conflict with or violate any judgment, order, notice, decree,
statute, law, ordinance, rule or regulation applicable to any of the
Shareholders or to any of the Shareholders’ property or assets, except in the
cases of (ii) and (iii) above where such conflicts or violations would not
reasonably be expected to prevent or materially impede or delay consummation of
the Merger or the other transactions contemplated by the Merger Agreement or
consummation of the transactions contemplated by this Agreement.
6. Termination. This
Agreement shall terminate and be of no further force or effect as of the earlier
to occur of: (i) the day after the receipt of the Company
Shareholder Approvals, and (ii) the expiration or termination of the Merger
Agreement in accordance with its terms. Notwithstanding the foregoing, if the
Company terminates the Merger Agreement pursuant to Section 7.01(e) thereof,
termination of this Agreement under this Section 6 shall not occur until the
earlier of: (i) the day after the receipt of all Company
Shareholder approvals required to approve the Superior Proposal, and
(ii) the expiration or termination of the alternative acquisition agreement
for the Superior Proposal in accordance with its terms.
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7. Severability. If
any term or other provision of this Agreement is held invalid, illegal or
incapable of being enforced by any court of competent jurisdiction, all other
terms and provisions of this Agreement shall nevertheless remain in full force
and effect so long as the legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any party hereto.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the parties shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner to ensure that the transactions contemplated
hereby are fulfilled to the fullest extent possible.
8. Shareholder
Capacity. Each Shareholder is hereby executing and performing this
Agreement solely in the Shareholder’s capacity as the record and/or beneficial
owner, as applicable, of the Shares and nothing in this Agreement shall limit or
restrict the exercise by such Shareholder, in his or her capacity as an officer
or director of the Company or any of its subsidiaries, from acting, omitting to
act or refraining from taking any action, solely in such person’s capacity as a
member of the Board of Directors or as an officer of the Company (or as an
officer or director of any of the Company’s subsidiaries) consistent with his or
her fiduciary duties in such capacity under applicable law.
9. Binding
Effect and Assignment. This Agreement and all of the
provisions hereof 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 specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
any of the parties hereto without prior written consent of the other parties
hereto.
10. Amendments
and Modification. This Agreement
may not be modified, amended, altered or supplemented except upon the execution
and delivery of a written agreement executed by each of the parties hereto;
provided that Xxxxx Xxxxx is hereby authorized and empowered to sign any such
modification or amendment on behalf of all of the Shareholders, and provided
further that any provision of this Agreement may be waived, or the time for its
performance may be extended, by the party or parties entitled to the benefit
thereof by a writing signed by such party or an authorized representative
thereof.
11. Remedies,
Specific Performance. Each Shareholder
acknowledges that the Company has entered into the Merger Agreement in reliance
upon such Shareholder’s execution, delivery and performance of this Agreement
and the Company shall be irreparably harmed and that there shall be no adequate
remedy at law for a violation of any of the covenants or agreements of the
Shareholders set forth in this Agreement. Therefore, the Shareholders hereby
agree that, in addition to any other remedies that may be available to the
Company upon any such violation, and which are not limited by any other document
or Agreement, the Company shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief without the posting of any
bond, or by any other means available to the Company at law or in equity, and
each Shareholder hereby waives any and all defenses which could exist in its
favor in connection with such enforcement.
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12. Attorney’s
Fees. The Shareholders
shall pay or reimburse the Company for all costs, expenses and attorneys’ fees
paid or incurred by the Company in endeavoring to enforce the obligations
Shareholders under this Agreement.
13. Notices. All notices and
other communications pursuant to this Agreement shall be in writing and deemed
to be sufficient if contained in a written instrument and shall be deemed given
if delivered personally, telecopied, sent by nationally recognized overnight
courier or mailed by registered or certified mail (return receipt requested),
postage prepaid, to the parties at the addresses (or at such other address for a
party as shall be specified by like notice) set forth on the signature page
hereto.
14. Governing
Law. This Agreement
shall be governed by the laws of the State of Washington, without reference to
its principles of conflicts of law.
15. Entire
Agreement. This Agreement,
together with the documents expressly referred to herein, contain the entire
understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
16. Effect of
Headings. The Section
headings are for convenience only and shall not affect the construction or
interpretation of this Agreement.
17. Counterparts. This Agreement
may be executed in several counterparts, each of which shall be an original, but
all of which together shall constitute one and the same
agreement.
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IN
WITNESS WHEREOF, the undersigned have caused this Agreement to be duly executed
as of the date first above written.
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SHAREHOLDERS
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ZONES,
INC.
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/s/ Xxxxx Xxxxx
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By:
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/s/ Xxxxxxx X. Xxxxxx
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Xxxxx
Xxxxx
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Name:
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Xxxxxxx X. Xxxxxx
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Title:
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Chair, Special Committee of the Board of Directors
of Zones, Inc.
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Address:
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0000
00xx Xxxxxx XX, Xxxxx 000
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Address:
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Xxxxxx,
XX 00000-0000
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Facsimile: (000)
000-0000
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Special
Committee of the Board of Directors
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c/o
Xxxx Xxxxxx PC
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0000
Xxxxx Xxxxxx, Xxxxx 0000
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Xxxxxxx,
XX 00000
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/s/ Xxxxx Xxxxx
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Facsimile: (000)
000-0000
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Xxxxx
Xxxxx
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Attention: Xxxxxxx
X. Xxxxxx
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Address:
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0000
00xx Xxxxxx XX, Xxxxx 000
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Xxxxxx,
XX 00000-0000
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Facsimile: (000)
000-0000
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8
ZONES,
INC.
PROXY
The
undersigned Shareholders of Zones, Inc. (the “Company”) hereby appoint Xxxx X.
Xxxxx and Xxxxxxx X. Xxxxxx, and each of them, proxies for the undersigned, with
full power of substitution, and authorizes them to attend the Special Meeting of
Shareholders for the Company on November 19, 2008, and any adjournments thereof,
and to vote thereat all shares of Common Stock of the Company that the
undersigned would be entitled to vote if personally present, to vote FOR the
proposal to approve the merger and to approve and adopt the Agreement and Plan
of Merger dated as of July 30, 2008, and as amended on November 17, 2008 as it
may be further amended from time to time, by and between the Company and Zones
Acquisition Corp., and the other transactions contemplated thereby, and FOR the
proposal to approve any motion to adjourn the special meeting, if necessary, to
solicit additional proxies if there are insufficient votes at the time of the
special meeting to approve the foregoing proposal, and to vote in their
discretion on any other matters presented at the meeting or any adjournments
thereof and FOR the appointment of the Shareholder Representatives to serve as
the agent and the attorney-in-fact for and on behalf of each of the Selling
Shareholders. This proxy is coupled with an interest
and irrevocable. This Proxy shall terminate as provided in Section 6
of that certain Shareholder Voting and Support Agreement dated as of November
17, 2008 by and among the undersigned shareholders and the
Company.
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/s/ Xxxxx Xxxxx
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Xxxxx
Xxxxx
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/s/ Xxxxx Xxxxx
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Xxxxx
Xxxxx
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0
