Exhibit 99.2 Voting Agreement
VOTING Agreement
This Voting Agreement (this "Agreement"), dated as of 5 March, 2003, among
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the stockholders listed on the signature page hereto (each, a "Stockholder" and,
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collectively, the "Stockholders") and Alcan Inc., a Canadian corporation
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("Parent").
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WHEREAS, simultaneously with the execution of this Agreement, Baltek
Corporation, a Delaware corporation (the "Company"), and Parent are entering
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into an Agreement and Plan of Merger (the "Merger Agreement"), dated as of the
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date hereof, providing, among other things, for the merger of a subsidiary of
Parent with and into the Company and the exchange of shares of Company Common
Shares (as defined below) for the right to receive the Merger Consideration (as
defined in the Merger Agreement);
WHEREAS, the respective Boards of Directors of the Company, Parent and
Merger Sub have approved and adopted the Merger Agreement and the transactions
contemplated thereby;
WHEREAS, as a condition to, and in consideration for Parent's willingness
to enter into the Merger Agreement and to consummate the transactions
contemplated thereby, Parent has required that the Stockholders enter into this
Agreement;
NOW THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein and in the Merger Agreement, the parties hereto, intending to be
legally bound, hereby agree as follows:
1. Certain Definitions.
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(a) For purposes of this Agreement, all capitalized terms used but not
otherwise defined herein shall have the respective meanings given to such terms
in the Merger Agreement.
(b) For purposes of this Agreement, "beneficially own" or "beneficial
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ownership" with respect to any securities shall mean having "beneficial
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ownership" of such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act).
(c) For purposes of this Agreement, the following terms shall have the
following meanings:
"Company Common Shares" means the Company's shares of common stock, par
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value $1.00 per share.
"Stockholder's Subject Shares" shall mean, with respect to a particular
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Stockholder, the number of shares of Subject Shares set forth opposite such
Stockholder's name on the schedule attached hereto as Exhibit A.
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"Transfer" means, with respect to any security, the sale, transfer, pledge,
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hypothecation, assignment or constructive sale or other disposition of such
security or the record or beneficial ownership thereof, the offer to make such a
sale, transfer, pledge, hypothecation, assignment, constructive sale or other
disposition, and each agreement, arrangement or understanding, whether or not in
writing, to effect any of the foregoing. The term "constructive sale" means a
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short sale with respect to such security, 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 hedging, swap or other transaction that is designed to or which
reasonably could be expected to lead to or result in a sale or disposition of,
or reduction of economic risk with respect to, such security; provided, however,
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that the term "constructive sale" shall not include transactions involving the
purchase and sale of securities tracking a broad based stock index.
2. Representations, Warranties and Covenants of Stockholder. Each
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Stockholder, individually and not jointly or severally, hereby represents and
warrants as follows:
(a) Title. As of the date hereof, such Stockholder is the sole record or
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beneficial owner of such Stockholder's Subject Shares. Such Stockholder is the
lawful owner of such Stockholder's Subject Shares, free and clear of all liens,
claims, charges, security interests or other encumbrances.
(b) Right to Vote. Except as set forth in the agreement between the
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Company, Xxxxxxx Xxxx, Xxxx Xxxx and Xxxxxxx Xxxx, dated March 5, 2001 (the
"March 5 Agreement"), such Stockholder has, with respect to all such
Stockholder's Subject Shares, and will have at the Stockholders Meeting, sole
voting power, sole power of disposition, sole power to issue instructions with
respect to the matters set forth in Section 4 hereof and to fulfill such
Stockholder's obligations under such Section and sole power to agree to all
matters set forth in this Agreement, in each case with no limitations,
qualifications or restrictions on such rights. Such Stockholder shall not take
any action or grant any person any proxy (revocable or irrevocable) or
power-of-attorney with respect to such Stockholder's Subject Shares inconsistent
with such Stockholder's obligations as provided by Sections 4 and 5 hereof. Such
Stockholder hereby revokes any and all proxies with respect to such
Stockholder's Subject Shares.
(c) Authority. Except as set forth in the March 5 Agreement, such
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Stockholder has the legal power, authority, legal capacity and right to execute
and deliver, and to perform such Stockholder's obligations under, this
Agreement. No other proceedings or actions on the part of such Stockholder are
necessary to authorize the execution, delivery or performance of this Agreement
or the consummation of the transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by such Stockholder and constitutes
a valid and binding agreement of such Stockholder enforceable against such
Stockholder in accordance with its terms, subject to bankruptcy, insolvency,
fraudulent transfer, reorganization, moratorium and similar laws of general
applicability relating to or affecting creditors' rights and to general equity
and fiduciary principles.
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(d) Conflicting Instruments. As of the date hereof, neither the
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execution and delivery of this Agreement nor the performance by such Stockholder
of such Stockholder's agreements and obligations hereunder will result in any
breach or violation of, or be in conflict with or constitute a default under,
any term of any agreement, judgment, injunction, order, decree, law or
regulation to which such Stockholder is a party or by which such Stockholder (or
any of such Stockholder's assets) is bound or subject.
(e) Parent's Reliance. Such Stockholder understands and acknowledges
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that Parent is entering into the Merger Agreement in reliance upon such
Stockholder's execution, delivery and performance of this Agreement.
3. Restriction on Transfer; Other Restrictions. Each Stockholder hereby
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agrees that, without the prior written consent of Parent, it will not, from the
date hereof, Transfer or agree to Transfer (i) any of such Stockholder's Subject
Shares, except (A) as otherwise permitted by the Merger Agreement, (B) Transfers
by operation of law if the transferee remains, or agrees in writing to remain,
bound by the terms of this Agreement, (C) Transfers as a bona fide gift or gifts
if the donee or donees thereof agrees in writing to be bound by the terms of
this Agreement, (D) Transfers to any sibling or any other member of such
Stockholder's immediate family, any of such Stockholder's lineal descendants or
any trust for the benefit of any of them, if the recipient agrees in writing to
be bound by the terms of this Agreement and (E) to the extent such Stockholder
is a corporate entity, Transfers (x) not involving a change in beneficial
ownership, (y) involving the distribution without consideration of such
securities by such Stockholder to any of its partners, members or retired
partners or members or, to the estate of any of its partners, members or retired
partners or members, or any of its stockholders (z) to any individual or entity
controlled by, controlling or under common control with such Stockholder or any
individual or entity with respect to which such Stockholder (or any person
controlled by, controlling or under common control with such Stockholder) has
the power to direct investment decisions, in each case if the recipient agrees
in writing to be bound by the terms of this Agreement.
4. Agreement to Vote. Each Stockholder hereby irrevocably and
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unconditionally agrees to vote or to cause to be voted, or provide a consent
with respect to, all of such Stockholder's Subject Shares at the Stockholders
Meeting and at any other annual or special meeting of stockholders of the
Company or action by written consent where such matters arise (a) in favor of
the Merger and the Merger Agreement and approval of the terms thereof and (b)
against, and such Stockholder will not consent to, (i) approval of any
Acquisition Proposal or any acquisition agreement or similar agreement related
to an Acquisition Proposal, (ii) any change in the persons who constitute the
Board of Directors of the Company that is not approved in advance by at least a
majority of the persons who were directors of the Company as of the date hereof
(or their successors who were so approved) or (iii) any other action or proposal
involving the Company or any of its Subsidiaries that is intended, or could
reasonably be expected, to prevent, impede, interfere with, delay, postpone or
adversely affect the transactions contemplated by the Merger Agreement. Any such
vote shall be cast or consent shall be given in accordance with such procedures
relating thereto as shall ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote or consent. Notwithstanding anything to the contrary in this
Agreement or in the Merger
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Agreement, the obligations of the Stockholders specified in this Section 4 shall
not be limited or otherwise affected by the commencement, disclosure,
announcement or submission to the Company of any Acquisition Proposal, or by any
change of recommendation of the Company's Board of Directors.
5. Irrevocable Proxy. In furtherance of the transactions contemplated
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hereby and by the Merger Agreement, and in order to secure the performance of
each Stockholder's duties under this Agreement, each Stockholder hereby grants
to Parent and its designees, an irrevocable proxy, or, if applicable, a power of
attorney, and irrevocably appoints Parent or its designees, with full power of
substitution, such Stockholder's attorney and proxy to vote or, if applicable,
to give consent with respect to, all of such Stockholder's Subject Shares, with
regard to any of the matters referred to in Section 4 above at the Stockholders
Meeting, however called, or in connection with any action by written consent by
the stockholders of the Company. Each Stockholder acknowledges and agrees that
such proxy is coupled with an interest, constitutes, among other things, an
inducement for Parent to enter into the Merger Agreement, is irrevocable and
shall not be terminated by operation of law or otherwise upon the occurrence of
any event and that no subsequent proxies with respect to such Stockholder's
Subject Shares shall be given (and if given shall not be effective). The power
of attorney granted by each Stockholder is a durable power of attorney and shall
survive the dissolution, bankruptcy, death or incapacity of such Stockholder.
6. No Solicitation. From and after the date hereof, each Stockholder agrees
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that neither such Stockholder nor any of such Stockholder's agents or
representatives shall, and that such Stockholder shall direct and use such
Stockholder's best efforts to cause such Stockholder's agents and
representatives (including any investment banker, attorney or accountant
retained by Stockholder) not to, directly or indirectly, initiate, solicit,
encourage or otherwise facilitate any inquiries or the making of any Acquisition
Proposal. Such Stockholder further agrees that neither such Stockholder nor any
of such Stockholder's agents or representatives shall, and that such Stockholder
shall direct and use such Stockholder's best efforts to cause such Stockholder's
agents and representatives (including any investment banker, attorney or
accountant retained by Stockholder) not to, directly or indirectly, engage in
any negotiations concerning, or provide any confidential information or data to,
or have any discussions with, any Person relating to an Acquisition Proposal, or
otherwise entertain or facilitate any effort or attempt to make or implement an
Acquisition Proposal. Nothing in this Section 6 shall affect the ability of such
Stockholder or any of such Stockholder's agents or representatives to take any
action which is permissible for such Person to take under the Merger Agreement.
7. Fiduciary Duties of Directors. Notwithstanding anything herein to the
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contrary, nothing herein shall affect the ability of Stockholders who are
directors of the Company ("Stockholder Directors") to take any action as
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directors of the Company as such director may determine after consultation with
appropriate counsel to be necessary to comply with the fiduciary duties as
directors of the Company. Such Stockholder Directors are entering into this
Agreement solely in their capacity as stockholders of the Company, and not as
directors of the Company.
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8. Miscellaneous.
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(a) Entire Agreement. This Agreement constitutes the entire agreement
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among the parties with respect to the subject matter hereof and is not intended
to confer upon any person other than the parties hereto any rights or remedies
hereunder.
(b) Costs and Expenses. All costs and expenses incurred in connection
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with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring such expenses.
(c) Invalid Provisions. If any provision of this Agreement shall be
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invalid or unenforceable under applicable law, such provision shall be
ineffective to the extent of such invalidity or unenforceability only, without
it affecting the remaining provisions of this Agreement.
(d) Execution in Counterparts. This Agreement may be executed in
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counterparts transmitted and delivered by facsimile each of which shall be an
original with the same effect as if the signatures hereto and thereto were upon
the same instrument.
(e) Specific Performance. Each Stockholder agrees with Parent that if
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for any reason such Stockholder fails to perform any of such Stockholder's
agreements or obligations under this Agreement, irreparable harm or injury to
Parent would be caused as to which money damages would not be an adequate
remedy. Accordingly, such Stockholder agrees that, in seeking to enforce this
Agreement against such Stockholder, Parent shall be entitled, in addition to any
other remedy available at law, equity or otherwise, to specific performance and
injunctive and other equitable relief. The provisions of this Section 8(e) are
without prejudice to any other rights or remedies, whether at law or in equity,
that Parent may have against such Stockholder for any failure to perform any of
such Stockholder's agreements or obligations under this Agreement.
(f) Amendments; Termination.
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(i) This Agreement, including this Section 8(f), may not be
modified, amended, altered or supplemented, except that this Agreement
may be modified, amended, altered or supplemented, as between Parent
and any particular Stockholder, upon the execution and delivery of a
written agreement executed by Parent and such Stockholder.
(ii) The provisions of this Agreement (other than Sections 3 and
8) shall terminate upon the earliest to occur of (A) the consummation
of the Merger and (B) the termination of the Merger Agreement. The
provisions of Section 3 and 8 of this Agreement shall terminate upon
the termination of the Merger Agreement.
(g) Governing Law and Venue. EXCEPT AS REQUIRED BY MANDATORY
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PROVISIONS OF THE DELAWARE GENERAL CORPORATION LAW, AS AMENDED, THIS
AGREEMENT SHALL BE DEEMED TO BE MADE IN AND IN ALL
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RESPECTS SHALL BE INTERPRETED, CONSTRUED AND GOVERNED BY AND IN ACCORDANCE WITH
THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO THE CONFLICT OF LAW
PRINCIPLES THEREOF. The parties hereby irrevocably submit to the jurisdiction of
the courts of the State of New York, New York County, and the Federal courts of
the United States of America located in the State of New York, New York County,
solely in respect of the interpretation and enforcement of the provisions of
this Agreement and of the documents referred to in this Agreement, and in
respect of the transactions contemplated hereby, and hereby waive, and agree not
to assert, as a defense in any action, suit or proceeding for the interpretation
or enforcement hereof or of any such document, that it is not subject thereto or
that such action, suit or proceeding may not be brought or is not maintainable
in said courts or that the venue thereof may not be appropriate or that this
Agreement or any such document may not be enforced in or by such courts, and the
parties hereto irrevocably agree that all claims with respect to such action or
proceeding shall be heard and determined in such a New York State or Federal
court. The parties hereby consent to and grant any such court jurisdiction over
the person of such parties and over the subject matter of such dispute and agree
that mailing of process or other papers in connection with any such action or
proceeding in the manner provided in Section 8(k) or in such other manner as may
be permitted by law shall be valid and sufficient service thereof.
(h) Waiver of Jury Trial. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
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CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY
IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL
BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT.
EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR
ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH
OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING
WAIVER, (ii) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS
WAIVER, (iii) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH PARTY HAS
BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL
WAIVERS AND CERTIFICATIONS IN THIS SECTION 8(h).
(i) Successors and Assigns. The provisions of this Agreement shall be
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binding upon and inure to the benefit of the parties hereto and their respective
legal successors (including, in the case of each Stockholder, any executors,
administrators, estates, legal representatives and heirs of such Stockholder)
and permitted assigns; provided that, except as otherwise provided in this
Agreement, no party may assign, delegate or otherwise transfer any of its rights
or obligations under this Agreement.
(j) Further Assurances. From time to time, at the other party's request,
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and without further consideration, each party hereto shall execute and deliver,
or cause to be executed and delivered, such additional or further documents and
take lawful actions of
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a ministerial nature as may be necessary and appropriate for the purpose of
effectively carrying out the transactions contemplated by this Agreement.
(k) Notices. All notices and other communications given or made pursuant
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hereto shall be in writing and shall be deemed to have been duly given or made
as of the date of receipt and shall be delivered personally or sent by overnight
courier or sent by telecopy, to the Parties at the following addresses or
telecopy numbers (or at such other address or telecopy number for a party as
shall be specified by like notice):
(i) if to a Stockholder, at the address of such Stockholder set forth on
Exhibit A attached hereto or at such other address that such Stockholder may
have provided in writing to Parent; and
(ii) if to Parent:
Alcan Aluminum Corporation
0000 Xxxxxxxx Xxxx.
Xxxxxxxxx, Xxxx 00000-0000
X.X.X.
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxx
Facsimile: (000) 000-0000
(l) Effectiveness. Notwithstanding anything herein to the contrary, this
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Agreement shall only become effective upon the execution by the Company of the
Merger Agreement.
(m) Individual Obligations. Each Stockholder's obligations under this
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Agreement are individual and not joint or several obligations and no Stockholder
shall have any liability to Parent for the performance or non-performance by any
other Stockholder under this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Stockholders
Agreement as of the date first written above.
ALCAN INC.
By: /s/ Xxxxxx Xxxxxxx
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Name: Xxxxxx Xxxxxxx
Title:Deputy Chief Legal Officer
STOCKHOLDERS:
/s/ Xxxxxxx Xxxx
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Xxxxxxx Xxxx
/s/ Xxxx Xxxx
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Xxxx Xxxx
XXXXXXX XXXX REVOCABLE LIVING TRUST
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Trustee
By: /s/ Xxxxxxx Xxxx
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Name: Xxxxxxx Xxxx
Title: Trustee
EXHIBIT A
Number of Stockholder's
Stockholder Name and Address Subject Shares
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Xxxxxxx Xxxx 469,565
Xxxx Xxxx 469,565
Xxxxxxx Xxxx Revocable Living Trust 85,820
Xxxxxxx Xxxx Irrevocable Descendants Trust 47,057
All Stockholders' addresses are
X/x
Xxxxxx Xxxxxxxxxxx
00 Xxxxxxx Xxxxx
Xxxxxxxxx, X.X. 07647
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