EXHIBIT 99.2
VOTING AGREEMENT
VOTING AGREEMENT, dated as of February 4, 2001 (the "Agreement"), between
the undersigned holder (the "Holder") of shares of the common stock, $0.10 par
value (the "Company Common Stock"), of Xxxxx Technologies, Inc., a Delaware
corporation (the "Company"), and Tyco Acquisition Corp. XVIII (NV) ("Parent"), a
Nevada corporation and a wholly-owned subsidiary of Tyco International Ltd.
("Guarantor").
RECITALS
The Company, Parent and R2 Mergersub Inc., a Delaware corporation and a
direct, wholly owned subsidiary of Parent ("Merger Sub"), propose to enter into
an Agreement and Plan of Merger dated the date hereof (the "Merger Agreement";
capitalized terms not otherwise defined herein being used herein as therein
defined), pursuant to which Merger Sub would be merged (the "Merger") with and
into the Company, and each outstanding share of Company Common Stock would be
converted into the right to receive common shares, $0.20 par value ("Guarantor
Common Shares"), of Guarantor; and
The Holder is the beneficial owner of the number of shares of Company Common
Stock and options or rights to acquire shares of Company Common Stock (such
securities and any other securities of the Company hereafter acquired by the
Holder, the "Subject Securities") set forth on the signature page to this
Agreement; and
As a condition of its entering into the Merger Agreement, Parent has
requested the Holder to agree, and the Holder has agreed, to enter into this
Agreement.
AGREEMENT
NOW, THEREFORE, the parties hereto agree as follows:
1. AGREEMENT TO VOTE SHARES. Prior to the Termination Date (as hereinafter
defined), at every meeting of the stockholders of the Company called with
respect to any of the following, and at every adjournment thereof, and on every
action or approval by written consent of the stockholders of the Company with
respect to any of the following, the Holder shall vote all Subject Securities
that are voting securities and that it beneficially owns at the time of any such
vote: (i) in favor of adoption of the Merger Agreement and (ii) against
(x) approval of any Acquisition Proposal made in opposition to or in competition
with the Merger, (y) any merger (including, without limitation, an Alternative
Transaction), consolidation, sale of assets requiring stockholder approval,
reorganization or recapitalization of the Company, with any other person other
than Parent or its affiliates, and (z) any liquidation or winding up of the
Company (each of the foregoing in this clause (ii) is hereinafter referred to as
an "Opposing Proposal").
2. AGREEMENT NOT TO SOLICIT. Prior to the Termination Date, the Holder
will not, and will use its reasonable best efforts not to permit any investment
banker, attorney or other adviser or representative acting on its behalf or any
other entity under its control to, directly or indirectly: (1) solicit proxies
or become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) with respect to an Opposing Proposal or otherwise encourage or
assist any person in taking or planning any action that would constitute an
Opposing Proposal; or (2) initiate a stockholders' vote or action by written
consent of the Company's stockholders with respect to an Opposing Proposal.
Notwithstanding the restrictions set forth in this Section 2, any designee or
representative of Holder or any of its affiliates serving on the Board of
Directors of the Company may exercise his fiduciary duties in his capacity as a
director or an officer with respect to the Company as opposed to taking action
with respect to the direct or indirect ownership of the Subject Securities, and
no such exercise of fiduciary duties shall be deemed a breach of, or a violation
of the restrictions contained in this Agreement, provided that such fiduciary
duties are exercised in accordance with Section 4.02 of the Merger Agreement.
3. TRANSFER OF SECURITIES. From and after the date hereof until the
conclusion of the meeting at which the Company's stockholders vote on the
adoption of the Merger Agreement and the Holder votes in favor of approval of
the Merger and the adoption of the Merger Agreement (the "Meeting Date"), the
Holder will not effect a sale, exchange, pledge, disposition or other transfer
or encumbrance (a "Sale") of any of the Subject Securities to or in favor of any
person, unless, prior to any such Sale, such person shall have agreed in a
writing, in form and substance reasonably acceptable to Parent, for the benefit
of and delivered to Parent, to be bound by all provisions of this Agreement
applicable to the Holder. Following the Meeting Date, the Holder shall not
consummate a Sale to or in favor of any person, unless (i) such sale is made in
the open market or (ii) prior to any such Sale, such person shall have agreed in
writing, in form and substance reasonably acceptable to Parent, for the benefit
of and delivered to Parent, to be bound by the provisions of Section 2
(Agreement Not to Solicit) of this Agreement.
4. BINDING AGREEMENT. This Agreement shall be binding upon, and shall
inure to the benefit of, the Holder, and his heirs, estate, personal
representatives and permitted assigns and Parent and its successors and
permitted assigns.
5. NOTICES. All notices and other communications given or made pursuant
hereto shall be in writing and shall be deemed to have been duly given or made
if and when delivered personally or by overnight courier or sent by electronic
transmission, with confirmation received, to the address or telecopy numbers
specified below:
If to the Holder, to the person at the address appearing on the signature
page beneath the Holder's name or to telecopier No. .
If to Parent:
Tyco Acquisition Corp. XVIII (NV)
Xxx Xxxx Xxxx
Xxxxxx, XX 00000
Telecopier No.: (000) 000-0000
Attn: President
With a copy to:
Kramer, Levin, Naftalis & Xxxxxxx LLP
000 Xxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telecopier No.: (000) 000-0000
Telephone No.: (000) 000-0000
Attention: Xxxx X. Xxxxxxxx, Esq.
or to such other address or telecopy number as any party may have furnished
to the other parties in writing in accordance herewith.
6. SPECIFIC PERFORMANCE. The parties hereto agree that irreparable harm
would occur in the event that any of the provisions of this Agreement were not
performed in accordance with its specific terms or were otherwise breached. It
is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions hereof in any court of the United States or any state
thereof having jurisdiction, this being in addition to any other remedy to which
they are entitled at law or in equity.
7. AMENDMENT. (a) This Agreement may not be amended or modified, except by
an instrument in writing signed on behalf of each of the parties hereto.
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(b) This Agreement may not be waived by either party hereto, except by an
instrument in writing signed on behalf of the party granting such waiver.
(c) This Agreement may not be assigned by any party without the prior
written consent of the other party, and any assignment without such consent
shall be void. The foregoing notwithstanding, this Agreement and the rights of
Parent hereunder may be assigned to Guarantor or any direct or indirect
wholly-owned subsidiary of Guarantor without the consent of the Holder.
8. GOVERNING LAW/CONSENT OF JURISDICTION. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. Each
party hereto hereby irrevocably submits to the jurisdiction of any New York
State or Federal court sitting in the City of New York in any action or
proceeding arising out of or related to this Agreement, and hereby irrevocably
agrees that all claims in respect of such action or proceeding may be heard and
determined in such State or Federal court. Each party hereto hereby irrevocably
consents to the service of process, which may be served in any such action or
proceeding by certified mail, return receipt requested, by delivering a copy of
such process to such party at its address specified in Section 5 or by any other
method permitted by law.
9. COUNTERPARTS. This Agreement may be executed in counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same agreement.
10. TERMINATION. (a) This Agreement shall terminate upon the earlier to
occur of (i) the Effective Time and (ii) the termination of the Merger Agreement
according to its terms. The date and time at which this Agreement is terminated
in accordance with this Section 10 is referred to herein as the "Termination
Date."
(b) Upon any termination of this Agreement as provided in this Section 10,
this Agreement shall thereupon become void and of no further force and effect,
and there shall be no liability in respect of this Agreement or of any
transactions contemplated hereby or by the Merger Agreement on the part of any
party hereto or any of its directors, officers, partners, stockholders,
employees, agents, advisors, representatives or affiliates; provided, however,
that nothing herein shall relieve any party from any liability for such party's
willful breach of this Agreement; and provided further that nothing herein shall
limit, restrict, impair, amend or otherwise modify the rights, remedies,
obligations or liabilities of any person under any other contract or agreement,
including, without limitation, the Merger Agreement.
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IN WITNESS WHEREOF, this Agreement has been executed by or on behalf of each
of the parties hereto, all as of the date first above written.
TYCO ACQUISITION CORP. XVIII (NV)
By:
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Name: Xxxx X. Xxxxxx
Title: Vice President
THE HOLDER:
By:
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Address: -------------------------------------
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Number of Shares of Company Common Stock:
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