VOTING AGREEMENT
Exhibit 2.2
This VOTING AGREEMENT (this “Agreement”) is entered into as of April 1, 2007 by and
among (i) Quartzite Holdings, Inc., a Delaware corporation (“Acquiror”); and (ii) the
stockholders of Quovadx, Inc., a Delaware corporation (the “Company”), listed on the
signature pages hereto (collectively, “Stockholders” and each individually, a
“Stockholder”). Capitalized terms used and not otherwise defined herein shall have the
respective meanings assigned to them in the Merger Agreement referred to below.
RECITALS:
A. As of the date hereof, the Stockholders collectively own of record and beneficially shares
of capital stock of the Company, as set forth on Schedule I hereto (such shares, or any
other voting or equity of securities of the Company hereafter acquired by any Stockholder prior to
the termination of this Agreement, being referred to herein collectively as the “Shares”).
B. Concurrently with the execution of this Agreement, Acquiror and the Company are entering
into an Agreement and Plan of Merger dated as of the date hereof (the “Merger Agreement”),
pursuant to which, upon the terms and subject to the conditions thereof, Quartzite Acquisition Sub,
Inc., a Delaware corporation (“Merger Sub”), will be merged with and into the Company, and
the Company will be the surviving corporation (the “Merger”).
C. As a condition to the willingness of Acquiror to enter into the Merger Agreement, Acquiror
has required that the Stockholders agree, and in order to induce Acquiror to enter into the Merger
Agreement, the Stockholders are willing to agree, to vote in favor of adopting the Merger Agreement
and approving the Merger, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants and agreements
contained herein, and intending to be legally bound hereby, the parties hereby agree, severally and
not jointly, as follows:
1. Voting of Shares.
1.1. Voting. Each Stockholder covenants and agrees that until the termination of this
Agreement in accordance with the terms hereof, at the Special Meeting (including any adjournment or
postponement thereof) or any other meeting of the stockholders of the Company, however called, and
in any action by written consent of the stockholders of the Company, such Stockholder shall vote,
or use his or her best efforts to cause to be voted (or exercise his, her or its right of consent
with respect to) all of his or her respective Shares:
(a) in favor of the approval and adoption of the Merger Agreement and the approval of
the Merger contemplated by the Merger Agreement, as the Merger Agreement may be modified or
amended from time to time; and
Voting Agreement — Page 2
(b) against (i) any other Acquisition Proposal; or (ii) any action or agreement,
including any proposed amendment of the Company’s certificate of incorporation or bylaws or
other proposal or transaction involving the Company or any of its Subsidiaries which action,
agreement, amendment or other proposal or transaction is intended by the Stockholders to in
any manner impede, interfere with, delay, or attempt to frustrate, prevent or nullify the
Merger, the Merger Agreement or any of the other transactions contemplated by the Merger
Agreement including, without limitation, any action or agreement that would result in a
breach in any material respect of any covenant, representation, warranty or any other
obligation or agreement of the Company under the Merger Agreement.
1.2. Grant of Proxy. Other than pursuant to the terms of this Agreement or the Merger
Agreement, each Stockholder hereby irrevocably grants to, and appoints, Acquiror, and any
individual designated in writing by it, and each of them individually, as its proxy and
attorney-in-fact (with full power of substitution), for and in its name, place and stead, to vote
his, her or its Shares at any meeting of the stockholders of the Company called with respect to any
of the matters specified in, and in accordance and consistent with this Section 1. Each
Stockholder understands and acknowledges that Acquiror is entering into the Merger Agreement in
reliance upon the Stockholder’s execution and delivery of this Agreement. Each Stockholder hereby
affirms that the irrevocable proxy set forth in this Section 1.2 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 such Stockholder under this Agreement. Except as otherwise provided
for herein, each Stockholder hereby affirms that the irrevocable proxy is coupled with an interest
and may under no circumstances be revoked. Notwithstanding any other provisions of this Agreement,
the irrevocable proxy granted hereunder shall automatically terminate upon the termination of this
Agreement.
2. Transfer of Shares. Each Stockholder covenants and agrees that such Stockholder will
not directly or indirectly, (a) sell, assign, transfer (including by merger or otherwise by
operation of law, but excluding, testamentary disposition or interspousal disposition pursuant to a
domestic relations proceeding), pledge, encumber or otherwise dispose of any of the Shares, (b)
deposit any of the Shares into a voting trust or enter into a voting agreement or arrangement with
respect to the Shares or grant any proxy or power of attorney with respect thereto which is
inconsistent with this Agreement or (c) enter into any contract, option or other arrangement or
undertaking with respect to the direct or indirect sale, assignment, transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic relations proceeding or
otherwise by operation of law) or other disposition of any Shares.
3. Representations and Warranties of the Stockholders. Each Stockholder on his, her or its
own behalf hereby, severally and not jointly, represents and warrants to Acquiror with respect to
itself and its, his or her ownership of the Shares as follows:
3.1. Ownership of Shares. On the date hereof, the Shares are owned beneficially by
such Stockholder or its nominee, and the Shares represent all of the shares of Common Stock owned
(beneficially or of record) by such Stockholder. Such Stockholder has sole voting power, without
restrictions, with respect to all of the Shares. The Shares are free and clear of all liens,
Voting Agreement — Page 3
pledges, security interests, claims, options, rights of first refusal and any other similar
restrictions.
3.2. Power, Binding Agreement. Such Stockholder has (and will have) the legal
capacity, power and authority to enter into and perform all of its obligations under this
Agreement. The execution, delivery and performance of this Agreement by such Stockholder will not
violate any agreement to which such Stockholder is a party, including, without limitation, any
voting agreement, stockholders’ agreement, partnership agreement or voting trust. This Agreement
has been duly and validly executed and delivered by such Stockholder and constitutes a valid and
binding obligation of such Stockholder, enforceable against such Stockholder in accordance with its
terms, subject to applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and similar laws affecting creditors’ rights and remedies generally and subject, as to
enforceability, to general principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
3.3. No Conflicts. The execution and delivery of this Agreement do not, and the
consummation of the transactions contemplated hereby 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, any provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession, franchise, license, judgment, order,
decree, statute, law, ordinance, rule or regulation applicable to such Stockholder or any of its
properties or assets, other than such conflicts, violations or defaults or terminations,
cancellations or accelerations which individually or in the aggregate do not impair the ability of
such Stockholder to perform its obligations hereunder.
3.4. No Other Representations or Warranties. Except for the representations and
warranties expressly contained in this Section III, each such Stockholder makes no express or
implied representation or warranty with respect to such Stockholder, the Shares, or otherwise.
4. Representations and Warranties of the Acquiror. Acquiror, on its own behalf hereby
severally represents and warrants to each such Stockholder with respect to itself as follows:
4.1. Valid Existence. Acquiror is a corporation duly organized, validly existing and
in good standing under the laws of the State of Delaware and has the requisite corporate power and
authority to carry on its business as it is now being conducted.
4.2. Authority Relative to This Agreement. Acquiror has all necessary corporate power
and authority to execute and deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. This Agreement has been duly and validly
authorized, executed and delivered by Acquiror and, assuming the due authorization, execution and
delivery by the Stockholders hereto, constitutes a legal, valid and binding obligation of Acquiror,
enforceable against Acquiror in accordance with its terms, subject to applicable bankruptcy,
insolvency, fraudulent conveyance, reorganization, moratorium and similar laws affecting creditors’
rights and remedies generally and subject, as to enforceability, to general principles of equity
(regardless of whether enforcement is sought in a proceeding at law or in equity).
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5. No Solicitation. Prior to the termination of this Agreement in accordance with its
terms, each Stockholder agrees, in its individual capacity as a stockholder of the Company, that
(a) it will not, nor will it knowingly authorize or permit any of its agents and representatives
to, directly or indirectly, (i) initiate, solicit or encourage any inquiries or the making of any
Acquisition Proposal, (ii) enter into any agreement with respect to any Acquisition Proposal, or
(iii) participate in any discussions or negotiations regarding, or furnish to any person any
information with respect to, or take any other action to facilitate any inquiries or the making of
any proposal that constitutes, or may reasonably be expected to lead to, any Acquisition Proposal,
and (b) it will notify Acquiror as soon as possible if any such inquiries or proposals are received
by, any information or documents is requested from, or any negotiations or discussions are sought
to be initiated or continued with, it or any of its affiliates in its individual capacity.
6. Appraisal Rights. Each Stockholder agrees not to exercise any rights to demand
appraisal of any Shares (including under Section 262 of the DGCL) that may arise with respect to
the Merger.
7. Termination. This Agreement shall terminate upon the first to occur of (i) the
Effective Time or (ii) the termination of the Merger Agreement in accordance with its terms.
8. Specific Performance. The parties hereto agree that (i) the representations,
warranties, covenants and restrictions set forth in this Agreement are necessary, fundamental and
required for the protection of Acquiror and to preserve for Acquiror the benefits of the Merger
Agreement and the transactions contemplated thereby; (ii) such covenants relate to matters which
are of a special, unique, and extraordinary character that gives each such representation,
warranty, covenant and restriction a special, unique, and extraordinary value; and (iii) a breach
of any such representation, warranty, covenant or restriction, or any other term or provision of
this Agreement, will result in irreparable harm and damage to Acquiror that cannot be adequately
compensated by a monetary award. Accordingly, the parties hereby agree that in addition to all
other remedies available at law or in equity, Acquiror shall be entitled to the immediate remedy of
specific performance, a temporary and/or permanent restraining order, preliminary injunction, or
such other form of injunctive or equitable relief as may be used by any court of competent
jurisdiction to restrain or enjoin any of the parties hereto from breaching any representations,
warranties, covenants or restrictions set forth in this Agreement, or to specifically enforce the
terms and provisions hereof.
9. Fiduciary Duties. Each Stockholder is signing this Agreement solely in such
Stockholder’s capacity as an owner of his, her or its respective Shares, and nothing herein shall
prohibit, prevent, preclude or limit such Stockholder from taking or not taking any action in his
or her capacity as an officer or director of the Company, including, without limitation, any vote
that such individual may make as a director of the Company with respect to any matter presented to
the Board of the Company or any actions expressly permitted by Section 7.8 of the Merger
Agreement. No such action taken by such Stockholder in his or her capacity as a director or
officer of the Company shall be deemed to constitute a breach of any provision of this Agreement.
10. Miscellaneous
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10.1. Entire Agreement. This Agreement, together with the Merger Agreement,
constitutes the entire agreement between the parties hereto with respect to the subject matter
hereof and supersedes all prior agreements and understandings, both written and oral, between the
parties with respect thereto.
10.2. Invalidity. 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. Upon such
determination that any term or other provision is invalid, illegal or incapable of being enforced,
the parties hereto shall negotiate in 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 a mutually acceptable manner in order that the terms of this Agreement remain as originally
contemplated to the fullest extent possible.
10.3. Governing Law. This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of conflicts of law
thereof. Each of the parties hereto irrevocably submits to the exclusive jurisdiction of the state
courts of Delaware and to the jurisdiction of the United States District Court for the District of
Delaware for the purpose of any action arising out of or relating to this Agreement, and each of
the parties hereto irrevocably agrees that all claims in respect to such action may be heard and
determined exclusively in any Delaware state or federal court sitting in the State of Delaware.
Each of the parties hereto agrees that a final judgment in any action shall be conclusive and may
be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
10.4. Counterparts; Facsimile Signatures. This Agreement may be executed in
counterparts, each of which shall be deemed an original and all of which together shall constitute
one and the same instrument. This Agreement may be executed by facsimile signatures.
10.5. Amendment. This Agreement may not be amended, modified or rescinded except by
an instrument in writing signed by all the parties hereto.
10.6. Other Definitional and Interpretative Provisions. The captions herein are
included for convenience of reference only and shall be ignored in the construction or
interpretation hereof. Any singular term in this Agreement shall be deemed to include the plural,
and any plural term the singular. Any pronoun shall include the corresponding masculine, feminine
and neuter forms, as appropriate. Whenever the words “include”, “includes” or “including” are used
in this Agreement, they shall be deemed to be followed by the words “without limitation”, whether
or not they are in fact followed by those words or words of like import. References from or
through any date mean, unless otherwise specified, from and including or through and including,
respectively.
10.7. Further Assurances. Each party shall each execute and deliver, or cause to be
executed and delivered, all further documents and instruments and use his, her or its reasonable
best efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things
necessary, proper or advisable under applicable laws and regulations, to consummate and make
effective the transactions contemplated by this Agreement
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10.8. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally or by commercial messenger or courier service, or
mailed by registered or certified mail (return receipt requested) or sent via facsimile (with
acknowledgment of complete transmission) or sent via email (with acknowledgement of receipt) to the
parties hereto at the following addresses (or at such other address for a party as shall be
specified by like notice), provided, however, that notices sent by mail will not be deemed given
until received:
If to Acquiror:
|
In accordance with the notice provisions in the Merger Agreement. | |
If to a Stockholder:
|
To such Stockholder’s address, fax number or e-mail address as set forth on Schedule I. |
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, each of the parties hereto has caused this Agreement to be signed
individually or by its respective duly authorized officer as of the date first written above.
| QUARTZITE HOLDINGS, INC. |
||||
| By: | /s/ R. Xxxxx Xxxxxx | |||
| Name: | R. Xxxxx Xxxxxx | |||
| Title: | President | |||
[Remainder of Page Intentionally Left Blank]
[signature page to voting agreement]
| STOCKHOLDERS: |
||||
| /s/ Xxxxxx X. Xxxxxx | ||||
| Xxxxxx X. Xxxxxx | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
| /s/ Xxxxxx Xxxxxxxx | ||||
| Xxxxxx Xxxxxxxx | ||||
| /s/ Xxxx Xxxxxxxx | ||||
| Xxxx Xxxxxxxx | ||||
| /s/ Xxxxx X. Xxxxxxxx | ||||
| Xxxxx X. Xxxxxxxx | ||||
[signature page to voting agreement]
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| /s/ Xxxxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxx | ||||
| /s/ Xxxx X. Xxxxx | ||||
| Xxxx X. Xxxxx | ||||
| /s/ J. Xxxxxx Xxxxxxx | ||||
| J. Xxxxxx Xxxxxxx | ||||
| /s/ Xxxxx X. Xxxxxx | ||||
| Xxxxx X. Xxxxxx | ||||
| Xxxxxxx X. Xxxxxxxxx | ||||
[signature page to voting agreement]
| /s/ Xxxxx X. Xxxxxxx | ||||
| Xxxxx X. Xxxxxxx | ||||
[signature page to voting agreement]
Schedule I
| Number of | Number of Shares | |||||||||
| Shares of | of Common Stock- | |||||||||
| Common Stock- | Beneficially | |||||||||
| Stockholder | Address of Stockholder | Of Record | Owned | |||||||
Xxxxxx X. Xxxxxx
|
0000 X. Xxxxxxx Xx. | 94,183 | 1,012,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxxxx X. Xxxxxx
|
0000 X. Xxxxxxx Xx. | 35,535 | 210,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxxx Xxxxxxxx
|
0000 X. Xxxxxxx Xx. | 36,766 | 560,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxx Xxxxxxxx
|
0000 X. Xxxxxxx Xx. | 37,058 | 330,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxx X. Xxxxxxxx
|
0000 X. Xxxxxxx Xx. | 32,431 | 220,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxx X. Xxxxxx
|
0000 X. Xxxxxxx Xx. | 11,541 | 25,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxxxx X. Xxxxxx
|
0000 X. Xxxxxxx Xx. | 95,000 | 130,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxx X. Xxxxx
|
0000 X. Xxxxxxx Xx. | 53,500 | 145,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
| Number of | Number of Shares | |||||||||
| Shares of | of Common Stock- | |||||||||
| Common Stock- | Beneficially | |||||||||
| Stockholder | Address of Stockholder | Of Record | Owned | |||||||
J. Xxxxxx Xxxxxxx
|
0000 X. Xxxxxxx Xx. | 56,500 | 50,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxx X. Xxxxxx
|
0000 X. Xxxxxxx Xx. | 395,866 | 100,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxxxx X. Xxxxxxxxx
|
0000 X. Xxxxxxx Xx. | 53,500 | 100,000 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
Xxxxx X. Xxxxxxx
|
0000 X. Xxxxxxx Xx. | 62,299 | 110,500 | |||||||
| Suite 000 Xxxxx | ||||||||||
| Xxxxxxxxx Xxxxxxx, XX 00000 | ||||||||||
| Total | 969,167 | 3,027,000 | ||||||||
