EXHIBIT 2.3
VOTING AGREEMENT AND IRREVOCABLE PROXY
VOTING AGREEMENT (this "Agreement"), dated as of February 10, 2004, by and
between Allied Motion Technologies, Inc., a Colorado corporation ("Parent"),
and The Xxxx X. Xxxxxxxx, Xx. Trust ("Shareholder").
WHEREAS, concurrently herewith, Parent, AMOT, Inc., a Pennsylvania
corporation and wholly owned subsidiary of Parent ("Merger Sub") and Owosso
Corporation, a Pennsylvania corporation (the "Company"), are entering into an
Agreement and Plan of Merger of even date herewith (the "Merger Agreement"),
pursuant to which each share of Company Common Stock and Company Preferred Stock
will cease to be existing and outstanding and shall be automatically converted
into the right to receive the Common Merger Consideration or the Preferred
Merger Consideration, as applicable, and the Merger Sub will be merged with the
Company, with the Merger Sub being the surviving entity. Capitalized terms used
but not defined herein shall have the meanings set forth in the Merger
Agreement.
WHEREAS, as of the date hereof, Shareholder owns 687,949 shares of Company
Common Stock (the "Shares") (for purposes of this Agreement the "Shares" shall
also include any shares of the Company acquired by Shareholder after the date of
this Agreement but prior to the Effective Time, whether upon the exercise of
options, conversion of convertible securities or otherwise); and
WHEREAS, as a condition to their willingness to enter into the Merger
Agreement, Parent and the Merger Sub have required that Shareholder agree, and
Shareholder hereby agrees, to take the actions set forth herein;
WHEREAS, the Shareholder has agreed to enter into this Agreement strictly in
his capacity as owner of the Shares and not in any other capacity, including,
without limitation, as a director or officer of the Company.
NOW, THEREFORE, to induce Parent and Merger Sub to enter into the Merger
Agreement, and in consideration of the premises and for other good and valuable
consideration given to each party hereto, the receipt of which is hereby
acknowledged, the parties agree as follows:
1. Agreement to Vote.
1.1 Voting. Shareholder hereby agrees that during the period commencing on
the date hereof and continuing until this Agreement terminates pursuant to
Section 2 hereof, at any meeting of the Shareholders, however called,
Shareholder shall: (a) vote the Shares in favor of the Merger; (b) vote the
Shares against any action or agreement that would result in a breach of any
covenant, representation or warranty or any other obligation or agreement of the
Company under the Merger Agreement; and (c) vote the Shares against any action
or agreement (other than the Merger Agreement or the transactions contemplated
thereby) that
would impede, interfere with, delay, postpone or attempt to discourage the
Merger, including, but not limited to: (i) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any of its subsidiaries; (ii) a sale or transfer of a
material amount of assets of the Company or any of its subsidiaries or a
reorganization, recapitalization or liquidation of the Company and its
subsidiaries; (iii) any change in the management or board of directors of the
Company, except as otherwise agreed to in writing by the Parent and the Merger
Sub; (iv) any material change in the present capitalization or dividend policy
of the Company; or (v) any other material change in the Company's corporate
structure or business or (vi) any other action which is intended, or could be
reasonably expected, to impede, interfere with, delay, postpone or adversely
effect the merger and the transactions contemplated by this Agreement and the
Merger Agreement. In the event that any corporate action consistent with this
Agreement is taken by the shareholders of the company by written consent
(including any action to approve the Merger Agreement and the transactions
contemplated thereby), each Shareholder hereby waives any right to receive
notice of the taking of such corporate action without a meeting pursuant to
Section 1766 of the PBCL or otherwise.
1.2 Grant of Irrevocable Proxy; Appointment of Proxy.
(i) During the period commencing on the date hereof and continuing until
this Agreement terminates pursuant to Section 2 hereof, Shareholder hereby
irrevocably grants to, and appoints, Xxxxxxx Xxxxx and Xxxxxxx Xxxxxxx, or
either of them, in their respective capacities as officers of Parent, and any
individual who shall hereafter succeed to any such office of Parent, and each of
them individually, Shareholder's proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Shareholder, to vote (or
cause to be voted) the Shares at any meeting of the Shareholders, however
called: (a) in favor of the Merger; (b) against any action or agreement that
would result in a breach of any covenant, representation or warranty or any
other obligation or agreement of the Company under the Merger Agreement; and (c)
against any action or agreement (other than the Merger Agreement or the
transactions contemplated thereby) that would impede, interfere with, delay,
postpone or attempt to discourage the Merger, including, but not limited to: (i)
any extraordinary corporate transaction, such as a merger, consolidation or
other business combination involving the Company or any of its subsidiaries;
(ii) a sale or transfer of a material amount of assets of the Company or any of
its subsidiaries or a reorganization, recapitalization or liquidation of the
Company and its subsidiaries; (iii) any change in the management or board of
directors of the Company, except as otherwise agreed to in writing by the Parent
and the Merger Sub; (iv) any material change in the present capitalization or
dividend policy of the Company; or (v) any other material change in the
Company's corporate structure or business or (vi) any other action which is
intended, or could be reasonably expected, to impede, interfere with, delay,
postpone or adversely effect the merger and the transactions contemplated by
this Agreement and the Merger Agreement.
(ii) Shareholder represents that any proxies heretofore given in respect of
the Shares are not irrevocable, and that any such proxies are hereby revoked.
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(iii) Shareholder hereby affirms that the proxy set forth in this Section
1.2 is coupled with an interest and is irrevocable until such time as this
Agreement terminates in accordance with its terms. Shareholder understands and
acknowledges that Parent is entering into the Merger Agreement in reliance upon
Shareholder's execution and delivery of this Agreement. Shareholder 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 Shareholder under this
Agreement. Shareholder hereby further affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked. Shareholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable.
(iv) The vote of the proxyholder shall control in any conflict between the
vote by the proxyholder of such Shareholder's Shares and a vote by such
Shareholder of such Shareholder's Shares.
1.3 No Inconsistent Arrangements. Shareholder hereby covenants and agrees
that, except as contemplated by this Agreement and the Merger Agreement, he
shall not: (i) except to Parent or the Merger Sub, transfer (which term shall
include, without limitation, any sale, gift, pledge or other disposition), or
consent to any transfer of, any or all of the Shares or any interest therein;
(ii) enter into any contract, option or other agreement or understanding with
respect to any transfer of any or all of the Shares or any interest therein;
(iii) grant any proxy, power-of-attorney or other authorization, other than
pursuant to Section 1.2 of this Agreement, in or with respect to the Shares;
(iv) deposit any Shares into a voting trust or enter into a voting agreement or
arrangement with respect to the Shares; or (v) take any other action that would
in any way restrict, limit or interfere with the performance of his obligations
hereunder or the transactions contemplated hereby or by the Merger Agreement or
which would make any representation or warranty of Shareholder hereunder untrue
or incorrect. Notwithstanding the foregoing, nothing herein shall prevent or
prohibit: (i) bona fide gifts by the Shareholder; (ii) transfers by the
Shareholder to his or her family members; or (iii) transfers by the Shareholder
to its affiliates (as that term is defined in the Securities Act of 1933, as
amended), provided that in the case of each of (i), (ii) and (iii), the
transferee agrees in writing to the terms of this Agreement.
1.4 No Solicitation. Except as provided below, Shareholder hereby agrees
that he shall not, and shall not permit or authorize any of his affiliates,
representatives or agents to, directly or indirectly, encourage, solicit,
explore, participate in or initiate discussions or negotiations with, or provide
or disclose any information to, any corporation, partnership, person or other
entity or group (other than Parent, the Merger Sub or any of their affiliates or
representatives) concerning any Acquisition Transaction or Acquisition Proposal
or enter into any agreement, arrangement or understanding requiring the Company
to abandon, terminate or fail to consummate the Merger or any other transactions
contemplated by the Merger Agreement. Shareholder will immediately cease any
existing activities, discussions or negotiations with any parties conducted
heretofore with respect to any acquisition transaction with a party other than
Parent or Merger Sub. From and after the execution of this Agreement,
Shareholder shall immediately advise Parent in writing of the receipt, directly
or indirectly, of any inquiries, discussions, negotiations or proposals relating
to an acquisition transaction with a party other than Parent or Merger Sub,
identify the offeror and furnish to Parent a copy of any such proposal or
inquiry, if it is in writing, or a written summary of any oral proposal or
inquiry relating to an acquisition transaction with a party other than Parent or
Merger Sub. Shareholder shall promptly advise Parent in writing of any
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development relating to such proposal, including the results of any discussions
or negotiations with respect thereto. Any action taken by the Company or any
member of the Board of Directors of the Company including, if applicable,
Shareholder and any representative of Shareholder acting in accordance with the
proviso to Section 7.3(b) of the Merger Agreement shall be deemed not to violate
this Section 1.4.
1.5 Reasonable Best Efforts. Subject to the terms and conditions of this
Agreement, Shareholder hereby agrees to use all 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
and the Merger Agreement. Shareholder shall promptly consult with Parent and
provide Parent any necessary information and material with respect to all
filings made by Shareholder with any entity in connection with this Agreement
and the Merger Agreement and the transactions contemplated hereby and thereby.
1.6 Waiver of Appraisal Rights. Shareholder hereby irrevocably waives any
rights of appraisal of the fair value of such Shareholder's Shares, rights to
dissent from the Merger or other similar rights that such Shareholder may have
pursuant to the PBCL or otherwise.
2. Expiration. This Agreement and the parties' obligations hereunder shall
terminate on the earliest of: (i) the Effective Time; or (ii) the 90th day after
the termination of the Merger Agreement, provided, however, that this Agreement
shall be terminated immediately in the event that the Merger Agreement is
terminated pursuant to the clause (i) of Section 9.1(d) or Section 9.1(e)
thereof.
3. Representation and Warranties. Shareholder hereby represents and warrants
to Parent as follows:
(a) Title. Shareholder has good and valid title to the Shares, free and
clear of any lien, pledge, charge, encumbrance or claim of whatever nature.
(b) Ownership of Shares. The Shares are owned of record and, except as set
forth on Schedule 3(b) attached hereto, beneficially by Shareholder and, on the
date hereof, the Shares constitute all of the Shares owned of record or
beneficially by Shareholder. Shareholder has sole voting power and sole power of
disposition with respect to all of the Shares, with no restrictions, subject to
applicable federal securities laws, on Shareholder's rights of disposition
pertaining thereto.
(c) Power; Binding Agreement. Shareholder has the legal capacity, power and
authority to enter into and perform all of his obligations under this Agreement.
The execution, delivery and performance of this Agreement by Shareholder will
not violate any other agreement to which Shareholder is a party including,
without limitation, any voting agreement, shareholders agreement or voting
trust. This Agreement has been duly and validly executed and delivered by
Shareholder and constitutes a valid and binding agreement of Shareholder,
enforceable against Shareholder in accordance with its terms, subject to
applicable bankruptcy, insolvency, fraudulent conveyance, reorganization,
moratorium and
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similar laws affecting creditors' rights and remedies generally, and subject, as
to enforceability, to general principles of equity, including principles of
commercial reasonableness, good faith and fair dealing (regardless of whether
enforcement is sought in a proceeding at law or in equity).
(d) No Conflicts. Other than in connection with or in compliance with the
provisions of the Exchange Act, no authorization, consent or approval of, or
filing with, any court or any public body or authority is necessary for the
consummation by Shareholder of the transactions contemplated by this Agreement.
The execution, delivery and performance of this Agreement and the consummation
of the transactions contemplated hereby will not constitute a breach, violation
or default (or any event which, with notice or lapse of time or both, would
constitute a default) under, or result in the termination of, or accelerate the
performance required by, or result in a right of termination or acceleration
under, or result in the creation of any lien, encumbrance, pledge, charge or
claim upon any of the Shares of Shareholder under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to which
Shareholder is a party or by which his properties or assets are bound.
(e) No Finder's Fees. No broker, investment banker, financial advisor or
other person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated
hereby based upon arrangements made by or on behalf of Shareholder in his
capacity as a shareholder of the Company.
4. Further Assurances. From time to time, at the Parent's request and
without further consideration, Shareholder shall execute and deliver such
additional documents and take all such further action as may be reasonably
necessary or desirable to consummate and make effective the transactions
contemplated by Section 1 of this Agreement.
5. Miscellaneous.
5.1 Capacity of Shareholder. Each of Parent and Shareholder recognizes and
acknowledges that nothing in this Agreement shall limit or restrict the
Shareholder from acting in such Shareholder's capacity as an officer or director
of the Company, to the extent applicable, it being understood that this
Agreement shall apply to the Shareholder solely in his capacity as a Shareholder
of the Company.
5.2 Survival. The representations and warranties made herein shall terminate
upon Shareholder's sale of the Shares to the Merger Sub pursuant to the Merger
Agreement.
5.3 Entire Agreement; Assignment. This Agreement: (i) constitutes the entire
agreement between the parties with respect to the subject matter hereof and
supersedes all other prior agreements and understandings, both written and oral,
between the parties with respect to the subject matter hereof; and (ii) shall
not be assigned by operation of law or otherwise, provided that Parent may
assign its rights and obligations hereunder to any direct or indirect wholly
owned subsidiary of Parent, but no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such obligations, and
Shareholder may assign this Agreement in accordance with the last sentence of
Section 1.3 of this Agreement.
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5.4 Amendments. This Agreement may not be modified, amended, altered or
supplemented, except upon the execution and delivery of a written agreement
executed by the parties hereto.
5.5 Notices. All notices, requests, claims, demands and other communications
hereunder shall be in writing and shall be given by hand delivery, telecopier,
any courier guaranteeing overnight delivery or first class registered or
certified mail, return receipt requested, postage pre- paid, addressed as
follows (or at such other address as may hereafter be designated in writing in
accordance with the provisions of this Section):
If to Shareholder:
The Xxxx X. Xxxxxxxx, Xx. Trust
c/o First National Wealth Management
XX Xxx 000
Xxxxxxxxxx, XX 00000-0000
Telephone: 000-000-0000
xxxxxxxxxx@xxxxxxxxxx.xxx
If to Parent:
Allied Motion Technologies, Inc.
00 Xxxxxxxxx Xxx Xxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxx 00000
Attention: Mr. Xxxxxxx Xxxxx
Facsimile: (000) 000-0000
Telephone: (000) 000-0000
copy to:
Xxxxxxx Xxxxxxxxxxx & Mugel, LLP
800 Fleet Bank Building
00 Xxxxxxxx Xxxxx
Xxxxxxx, Xxx Xxxx 00000
Attention: Xxx X. Xxxxxx, Esq.
Facsimile: 000-000-0000
Telephone: 000-000-0000
All such notices and communications (and deliveries) shall be deemed to have
been duly given: at the time delivered by hand, if personally delivered; when
receipt is acknowledged, if telecopied; on the next business day, if timely
delivered to a courier guaranteeing overnight delivery; and five days after
being deposited in the mail, if sent first class or certified mail, return
receipt requested, postage pre-paid.
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5.6 Governing Law.
(a) This Agreement shall be governed and construed in accordance with the
laws of the Commonwealth of Pennsylvania, without regard to any applicable
conflicts of laws principles.
(b) Each party to this Agreement irrevocably submits to the jurisdiction of
any Pennsylvania state court or any federal court sitting in Philadelphia,
Pennsylvania and any action arising out of or relating to this Agreement and
hereby irrevocably agrees that all claims in respect of such action may be heard
and determined in such Pennsylvania state or federal court. Each party hereby
irrevocably waives, to the fullest extent it may effectively do so, the defense
of an inconvenient forum to maintenance of such action or proceeding. The
parties further agree, to the extent permitted by law, that filing an
unappealable judgment against any of them in any action or proceeding
contemplated above shall be conclusive and may be enforced in any other
jurisdiction within or outside the United States by suit on the judgment, a
certified copy of which shall be conclusive evidence of the fact and amount of
such judgment.
(c) To the extent that any party has or hereafter may apply any immunity
from jurisdiction from any court or from any legal process (whether through
service or notice, attachment prior to judgment, attachment in aid of execution,
execution or otherwise) with respect to itself or its property, each party
irrevocably waives such immunity in respect of its obligation with respect to
this Agreement.
(d) Each party waives, to the fullest extent permitted by applicable laws,
any right it may have to a trial by jury in respect of any action, suit or
proceeding arising out of or relating to this Agreement. Each party certifies
that it has been induced to enter into this Agreement by, among other things,
the mutual waivers and certifications set forth above in this Section 5.5.
5.7 Specific Performance. Each of Parent and Shareholder recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other to sustain damages for which it would not
have an adequate remedy at law, and therefore each of Parent and Shareholder
agrees that in the event of any such breach the other shall be entitled to the
remedy of specific performance of such covenants and agreements and injunctive
and other equitable relief in addition to any other remedy to which it may be
entitled, at law or in equity.
5.8 Counterparts. This Agreement may be executed by facsimile and in
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same Agreement.
5.9 Descriptive Headings. The descriptive headings used herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
5.10 Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any
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jurisdiction, such invalidity, illegality or unenforceability will
not affect any other provision or portion of any provision in such jurisdiction,
and this Agreement will be reformed, construed and enforced in such jurisdiction
as if such invalid, illegal or unenforceable provision or portion of any
provision had never been contained herein.
(Signature page follows)
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IN WITNESS WHEREOF, Parent and Shareholder have caused this Agreement to be
duly executed as of the day and year first above written.
ALLIED MOTION TECHNOLOGIES, INC.
/s/ Xxxxxxx X. Xxxxx
---------------------------------------
By: Xxxxxxx X. Xxxxx
Title: Chief Executive Officer
THE XXXX X. XXXXXXXX, XX. TRUST
By: /s/ Xxxxxxx X. Xxxxxx
---------------------------------------
Senior Vice President and Trust Officer,
First National Health Management (Co-Trustee)
(Signature page to Voting Agreement)
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