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EXHIBIT 9.1
AMENDED AND RESTATED VOTING AGREEMENT
This Amended and Restated Voting Agreement (the "Agreement") is made and
entered into as of June 9, 1998, by and between Xxxxxx Instrument Corporation,
an Indiana corporation ("Xxxxxx"), and the undersigned stockholder (the
"Stockholder") of Electronic Designs, Inc., a Delaware corporation (the
"Company").
RECITALS
A. Concurrently with the execution of this Agreement, Xxxxxx, the
Company and Acquisition Subsidiary, a Delaware corporation and a wholly owned
subsidiary of Xxxxxx ("Sub"), have entered into an Agreement and Plan of Merger,
as amended June 9, 1998 (the "Merger Agreement") which provides for the merger
(the "Merger") of Sub with and into the Company. Pursuant to the Merger, shares
of common stock of the Company will be converted into common stock of Xxxxxx on
the basis described in the Merger Agreement.
B. The Stockholder is the record holder and beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such number of shares of the outstanding common stock,
stated value $.10 per share, of the Company as is indicated on the final page of
this Agreement (the "Shares").
X. Xxxxxx desires the Stockholder to agree, and the Stockholder is
willing to agree, not to transfer or otherwise dispose of any of the Shares, or
any other shares of capital stock of the Company acquired hereunder and prior to
the Expiration Date (as defined in Section 1.1 below, except as otherwise
permitted hereby), and to vote the Shares and any other such shares of capital
stock of the Company in a manner so as to facilitate consummation of the Merger,
as provided herein.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Other than as provided herein, until
the Expiration Date, Stockholder shall not hereafter (a) sell, tender, transfer,
pledge, encumber, assign or otherwise dispose of any of the Shares or New Shares
(as defined in Section 1.2 below), (b) deposit any Shares or New Shares into a
voting trust or enter into a voting agreement or arrangement with respect to
such Shares or New Shares or grant any proxy or power of attorney with respect
thereto, (c) enter into any contract, option or other arrangement or undertaking
with respect to the direct or indirect sale, transfer, pledge, encumbrance,
assignment or other disposition of any Shares or New Shares, or (d) take any
action that would make any representation or warranty of Stockholder contained
herein untrue or incorrect or have the effect of preventing or disabling
Stockholder from performing Stockholder's obligations under this Agreement. As
used herein, the term "Expiration Date" shall mean the earlier to occur of (i)
the
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Effective Time (as defined in the Merger Agreement); and (ii) such date and time
as the Merger Agreement shall be terminated pursuant to Article VII thereof.
1.2 Additional Purchases. Stockholder agrees that any shares of
capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. At every meeting of the stockholders of the
Company called with respect to any of the following matters, 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 matters,
Stockholder shall vote the Shares and any New Shares: (i) in favor of approval
of the Merger Agreement and the Merger and any matter necessary for consummation
of the Merger; and (ii) in favor of any other matter necessary for consummation
of the transactions contemplated by the Merger Agreement which is considered at
any such meeting of stockholders or in such consent, and in connection therewith
to execute any documents which are necessary or appropriate in order to
effectuate the foregoing or, at the request of Xxxxxx, to permit Xxxxxx to vote
such Shares and New Shares directly.
3. Irrevocable Proxy. By execution of this Agreement, Stockholder does
hereby appoint and constitute Xxxxxx, until the Expiration Date, with full power
of substitution and resubstitution, as Stockholder's true and lawful attorney
and irrevocable proxy, to the full extent of the undersigned's rights with
respect to the Shares and any New Shares, to vote each of such Shares and New
Shares solely with respect to the matters set forth in Section 2 hereof.
Stockholder intends this proxy to be irrevocable and coupled with an interest
hereafter until the Expiration Date and hereby revokes any proxy previously
granted by Stockholder with respect to the Shares.
4. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants to Xxxxxx as follows:
4.1 Due Authority. Stockholder has full power, corporate or
otherwise, and authority to execute and deliver this Agreement and to perform
its obligations hereunder. This Agreement has been duly executed and delivered
by or on behalf of Stockholder and constitutes a legal, valid and binding
obligation of Stockholder, enforceable against Stockholder in accordance with
its terms.
4.2 No Conflict; Consents. (a) The execution and delivery of this
Agreement by Stockholder do not, and the performance by Stockholder of the
obligations under this Agreement and the compliance by Stockholder with any
provisions hereof do not and will not, (i) conflict with or violate any law,
statute, rule, regulation, order, writ, judgment or decree applicable to
Stockholder or the Shares, (ii) conflict with or violate Stockholder's charter,
bylaws, partnership agreement or other organizational documents, if applicable,
or (iii) result in any breach of or constitute a default (or an event that with
notice or lapse of time or both would
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become a default) under, or give to others any rights of termination, amendment,
acceleration or cancellation of, or result in the creation of a lien or
encumbrance on any of the Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which Stockholder is a party or by which Stockholder
or the Shares are bound.
(b) The execution and delivery of this Agreement by Stockholder do
not, and the performance of this Agreement by Stockholder will not, require any
consent, approval, authorization or permit of, or filing with or notification
to, any governmental or regulatory authority by Stockholder except for
applicable requirements, if any, of the Exchange Act, and except where the
failure to obtain such consents, approvals, authorizations or permits, or to
make such filings or notifications, could not prevent or delay the performance
by Stockholder of his or her obligations under this Agreement in any material
respect.
4.3 Ownership of Shares. Stockholder (i) is the beneficial owner of
the Shares, which at the date hereof are, and at all times up until the
Expiration Date will be, free and clear of any liens, claims, options, charges,
proxies or voting restrictions or other encumbrances and (ii) does not
beneficially own any shares of capital stock of the Company other than the
Shares.
4.4 No Solicitations. Hereafter until the Expiration Date,
Stockholder shall not, nor, to the extent applicable to Stockholder, shall it
permit any of its affiliates to, nor shall it authorize any partner, officer,
director, advisor or representative of, Stockholder or any of its affiliates to,
(i) solicit, initiate or knowingly encourage the submission of, any inquiries,
proposals or offers from any person relating to an EDI Takeover Proposal, (ii)
enter into any agreement with respect to an EDI Takeover Proposal, (iii) solicit
proxies or become a "participant" in a "solicitation" (as such terms are defined
in Regulation 14A under the Exchange Act) with respect to an EDI Takeover
Proposal or otherwise encourage or assist any party in taking or planning any
action that would compete with, restrain or otherwise serve to interfere with or
inhibit the timely consummation of the Merger in accordance with the terms of
the Merger Agreement, (iv) initiate a stockholders' vote or action by consent of
the Company's stockholders with respect to an EDI Takeover Proposal, or (v)
become a member of a "group" (as such term is used in Section 13(d) of the
Exchange Act) with respect to any voting securities of the Company that takes
any action in support of an EDI Takeover Proposal.
5. No Limitation on Discretion as Director. Notwithstanding anything
herein to the contrary, the covenants and agreements set forth herein shall not
prevent Stockholder or its representatives or designees who are serving on the
Board of Directors of the Company from exercising its or their duties and
obligations as a Director of the Company or otherwise taking any action, subject
to the applicable provisions of the Merger Agreement, while acting in such
capacity as a director of the Company.
6. Additional Documents. Stockholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Xxxxxx to carry out the intent of the Agreement.
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7. Consent and Waiver. Stockholder hereby gives any consents or waivers
that are reasonably required for the consummation of the Merger under the terms
of any agreements to which Stockholder is a party or pursuant to any rights
Stockholder may have.
8. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
9. Miscellaneous.
9.1 Severability. If any term or other provision of this Agreement
is determined to be 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 so long as the economic or
legal substance of the transactions contemplated hereby is not affected in any
manner materially adverse to any party. 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 an acceptable manner to the end that the
transactions contemplated hereby are fulfilled to the extent possible.
9.2 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, but, 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 either
party without the prior written consent of the other.
9.3 Amendments and Modifications. 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.
9.4 Specific Performance; Injunctive Relief. The parties hereto
agree that irreparable damage would occur in the event any provision of this
Agreement was not performed in accordance with the terms hereof or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to
specific relief hereunder, including, without limitation, an injunction or
injunctions to prevent and enjoin breaches of the provisions of this Agreement
and to enforce specifically the terms and provisions hereof, in any state or
federal court in the State of Delaware, in addition to any other remedy to which
they may be entitled at law or in equity. Any requirements for the securing or
posting of any bond with respect to any such remedy are hereby waived.
9.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or facsimile (with confirmation of receipt), or sent
by mail (registered or certified mail, postage prepaid, return receipt
requested) or overnight courier (prepaid) to the respective parties as follows:
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If to Xxxxxx: Xxxxxx Instrument Corporation
0000 Xxxx Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
with a copy to:Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: XxXxxx Xxxxxx, Esq.
If to the Stockholder: To the address for notice set
forth on the last page hereof
with a copy to:Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, P.C.
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall be
effective upon receipt.
9.6 Governing Law; Jurisdiction and Venue. This Agreement shall be
governed by, and construed in accordance with, the internal laws of the State of
Delaware without regard to its rules of conflict of laws. The parties hereto
hereby irrevocably and unconditionally consent to and submit to the exclusive
jurisdiction of the courts of the State of Delaware and of the United States of
America located in such state (the "Delaware Courts") for any litigation arising
out of or relating to this Agreement and the transactions contemplated hereby
(and agree not to commence any litigation relating thereto except in such
courts), waive any objection to the laying of venue of any such litigation in
the Delaware Courts and agree not to plead or claim in any Delaware Court that
such litigation brought therein has been brought in any inconvenient forum.
9.7 Entire Agreement. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
9.8 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.
9.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
Agreement.
9.10 No Agreement Until Executed. Irrespective of negotiations among
the parties or the exchanging of drafts of this Agreement, this Agreement shall
not constitute or be deemed to evidence a contract, agreement, arrangement or
understanding between the parties
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hereto unless and until (i) the Board of Directors of the Company has approved,
for purposes of Section 203 of the Delaware General Corporation Law and any
applicable provision of the Company's Articles of Incorporation, the possible
acquisition of the Shares by Xxxxxx pursuant to this Agreement, (ii) the Merger
Agreement is executed by all parties thereto, and (iii) this Agreement is
executed by all parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
XXXXXX INSTRUMENT CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: President and Chief Executive Officer
STOCKHOLDER:
TECHNOLOGY FUNDING PARTNERS III, L.P.
By: Technology Funding Inc., its
Managing General Partner
By: /s/ Xxxxxx X. Toy
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Name: Xxxxxx X. Toy
Title: Vice President
Stockholder's Address for Notice:
0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Shares beneficially owned:
680,477 shares of Common Stock of
Electronic Designs, Inc.
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