EXHIBIT 2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "Agreement") is entered into as of
February __, 2005, by and among NATEL Engineering Company, Inc., a California
corporation ("Parent"), and the undersigned holder of shares, and/or options to
purchase shares, of Company Common Stock (as defined below) ("Shareholder").
RECITALS
A. Parent, Natel Merger Sub, a California corporation ("Merger Sub"), and
Hytek Microsystems, Inc., a California corporation (the "Company") are entering
into an Agreement and Plan of Merger of even date herewith (the "Merger
Agreement") pursuant to which (but subject to its conditions) Merger Sub will
merge with and into the Company (the "Merger").
B. Parent is unwilling to expend the substantial time, effort and expense
necessary to implement the Merger unless Shareholder enters into this Agreement.
C. Shareholder believes it is in Shareholder's best interest as well as
the best interest of the Company for Parent to consummate the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree as
follows:
1. Certain Definitions. For purposes of this Agreement:
1.1 "Company Common Stock" shall mean the common stock, no par value
per share, of the Company.
1.2 "Expiration Date" shall mean the earliest of: (i) the date upon
which the Merger Agreement is validly terminated pursuant to Article 8 thereof;
and (ii) the date upon which the Merger becomes effective.
1.3 Shareholder shall be deemed to "Own" or to have acquired
"Ownership" of a security if such Shareholder is the record and/or beneficial
owner (as defined in Rule 13d-3 under the Securities Exchange Act of 1934, as
amended) of such security.
1.4 "Person" shall mean any individual, corporation, limited
liability company, partnership, trust or other entity, or governmental
authority.
1.5 "Subject Securities" shall mean: (i) all Company Common Stock
Owned by Shareholder as of the date of this Agreement; and (ii) all additional
shares of Company Common Stock over which Shareholder acquires Ownership during
the period from the date of this Agreement through the Expiration Date, whether
by exercise of an option or otherwise.
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1.6 A Person shall be deemed to have a effected a "Transfer" of a
security if such Person directly or indirectly: (a) sells, pledges, encumbers,
grants an option with respect to, transfers, distributes or disposes of such
security or any interest in such security; or (b) enters into an agreement or
commitment contemplating the possible sale of, pledge of, encumbrance of, grant
of an option with respect to, transfer of or disposition of such security or any
interest therein.
1.7 "Voting Shares" shall mean all outstanding Subject Securities
with respect to which Shareholder has the power to direct voting.
Capitalized terms not otherwise defined herein shall have the respective
meanings ascribed to them in the Merger Agreement.
2. Transfer of Subject Securities.
2.1 Transferee of Subject Securities to be Bound by this Agreement.
Shareholder agrees that during the period from the date of this Agreement
through the Expiration Date, Shareholder shall not cause or permit any Transfer
of any of the Subject Securities to be effected unless each Person to which any
of such Subject Securities, or any interest in any of such Subject Securities,
is or may be Transferred shall have: (i) executed a counterpart of this
Agreement; and (ii) agreed to hold such Subject Securities (or interest in such
Subject Securities) subject to all of the terms and provisions of this Agreement
(except (a) as may be specifically required by court order or by operation of
law or (b) the Transfer, and all reasonably necessary action with respect to the
Transfer, of any of the Subject Securities in connection with the exercise
(cashless or otherwise) of options in an amount that is sufficient to satisfy
the payment of any transaction costs and any tax liability incurred by
Shareholder in connection with that exercise).
2.2 No Proxies with respect to Voting Shares; No Inconsistent
Actions. Shareholder agrees that during the period from the date of this
Agreement through the Expiration Date, Shareholder shall not (i) grant any
proxy, power-of-attorney or other authorization or consent with respect to any
of the Voting Shares or any interest therein; (ii) deposit any of the Voting
Shares or any interest therein into a voting trust, or enter into a voting
agreement or arrangement with respect to any of the Voting Shares or any
interest therein; or (iii) take any other action that would in any way restrict,
limit or interfere with the performance of Shareholder's obligations hereunder
or the transactions contemplated hereby, in each case, to the extent
inconsistent with Shareholder's obligations under this Agreement.
3. Voting of Shares.
3.1 Voting. Shareholder agrees that during the period from the date
of this Agreement through the Expiration Date:
(i) at any meeting of shareholders of the Company, however
called, and at every adjournment or postponement thereof, Shareholder shall (a)
appear at the meeting, or otherwise cause all Voting Shares Owned by
Shareholder, to be counted as present thereat for purposes of establishing a
quorum, (b) vote or cause all Voting
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Shares Owned by Shareholder to be voted in favor of the adoption of the Merger
Agreement and (c) vote or cause all Voting Shares Owned by Shareholder to be
voted, against (1) any Acquisition Proposal, (2) any amendment of the Company's
Articles of Incorporation or Bylaws or other proposal, action or transaction
involving the Company or any of its shareholders, which amendment or other
proposal, action or transaction would reasonably be expected to preclude
fulfillment of a condition precedent under the Merger Agreement to the Company's
or Parent's obligation to consummate the Merger and (3) any dissolution,
liquidation or winding up of the Company; and
(ii) in the event written consents are solicited or otherwise
sought from shareholders of the Company with respect to the approval or adoption
of the Merger Agreement or with respect to the approval of the Merger,
Shareholder shall cause to be validly executed, with respect to all Voting
Shares Owned by Shareholder as of the record date fixed for the consent to the
proposed action, a written consent or written consents to such proposed action.
3.2 Grant of Proxy; Appointment of Proxy. Shareholder:
(i) hereby irrevocably grants to, and appoints, Parent and any
nominee thereof, its proxy and attorney-in-fact (with full power of
substitution), for and in the name, place and stead of Shareholder, to vote all
Voting Shares Owned by Shareholder, or grant a consent or approval in respect of
such shares, in connection with any meeting of the shareholders of the Company
as specified in clauses (i) and (ii) of Section 3.1;
(ii) represents that any proxies heretofore given in respect
of the Voting Shares Owned by Shareholder, if any, are not irrevocable, and that
such proxies are hereby revoked;
(iii) hereby affirms that this proxy is coupled with an
interest and is intended to be irrevocable in accordance with applicable law;
and
(iv) hereby affirms that the proxy set forth in this Section
3.2 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.
4. Other Agreements.
4.1 Waiver of Dissenter's Rights. Shareholder agrees that
Shareholder will not exercise any rights to dissent from the Merger or demand
payment of Shareholder's Subject Securities pursuant to Chapter 13 of the CGCL
or any other similar provisions of law in connection with the Merger.
4.2 Disclosure. Shareholder hereby authorizes Parent and the Company
(which is a third party beneficiary of this provision) to publish and disclose
in the Proxy Statement (and all other documents and schedules filed with the SEC
in
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connection with the Merger) the nature of Shareholder's commitments,
arrangements and understandings under this Agreement.
4.3 Options under the Company's 1991 Directors' Stock Option Plan.
Shareholder hereby agrees that any unexpired and unexercised options under the
Company's 1991 Directors' Stock Option Plan which he holds immediately prior to
the Merger shall be cancelled, and consideration shall be paid therefor, on the
terms and subject to the conditions provided in Section 2.4 of the Merger
Agreement.
4.4 Further Assurances. At the reasonable request of Parent,
Shareholder shall execute and deliver, or cause to be executed and delivered,
such additional proxies, consents and other instruments, and shall take such
further actions for the purpose of carrying out and furthering the intent of
this Agreement.
5. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to Parent as follows:
5.1 Authorization, etc. Shareholder has all requisite power,
authority and legal capacity to execute and deliver this Agreement and to
perform Shareholder's obligations hereunder. This Agreement has been validly
executed and delivered by Shareholder and constitutes the legal, valid and
binding obligation of Shareholder, enforceable against Shareholder in accordance
with its terms, subject only to the effect, if any, of (a) applicable bankruptcy
and other similar laws affecting the rights of creditors generally and (b) rules
of law governing specific performance, injunctive relief and other equitable
remedies.
5.2 No Conflicts or Consents. The execution and delivery of this
Agreement by Shareholder does not, and the performance of this Agreement by
Shareholder will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Shareholder or by which Shareholder or
any of Shareholder's properties is bound; (ii) result in or constitute (with or
without notice or lapse of time) any breach of or default under, or give to any
other Person (with or without notice or lapse of time) any right of termination,
amendment, acceleration or cancellation of, or result (with or without notice or
lapse of time) in the creation of any encumbrance or restriction on any of the
Subject Securities pursuant to, any contract to which Shareholder is a party or
by which Shareholder or any of Shareholder's properties is bound; or (iii)
except for applicable requirements, if any, of the Exchange Act, require any
filing by Shareholder with, or any permit, authorization, consent or approval
of, any Governmental Entity or other Person, in the case of each of (ii) or
(iii) that, individually or in the aggregate, would adversely affect
Shareholder's ability to consummate any of the transactions contemplated hereby.
5.3 Title to Securities. (i) Shareholder holds of record, free and
clear of any liens, claims, options, rights of first refusal, co-sale rights,
charges or other encumbrances that would adversely affect the ability of Parent
and Company to consummate the Merger or the exercise or fulfillment of the
rights and obligations of the Company under the Merger Agreement or of the
parties to this Agreement (collectively,
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"Liens"), the number of outstanding shares of Company Common Stock set forth
under the heading "Shares Held of Record" on Exhibit A; (ii) Shareholder holds
(free and clear of any Liens) the options and other rights to acquire shares of
Company Common Stock set forth under the heading "Options and Other Rights" on
Exhibit A; (iii) Shareholder Owns the additional securities of the Company set
forth under the heading "Additional Securities Beneficially Owned" on Exhibit A;
and (iv) Shareholder does not directly or indirectly Own any shares of capital
stock or other securities of the Company, or any option, warrant or other right
to acquire (by purchase, conversion or otherwise) any shares of capital stock or
other securities of the Company, other than the shares and options and other
rights specified on Exhibit A. Exhibit A also identifies the social security
number of Shareholder and Shareholder's state of residence. As of the date
hereof, neither Shareholder nor any of Shareholder's properties or assets is
subject to any order, writ, judgment, injunction, decree, determination or award
that would prevent or materially delay the consummation of the transactions
contemplated hereby.
5.4 Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall limit or restrict Shareholder from acting in
Shareholder's capacity as a director or officer of the Company (it being
understood that this Agreement shall apply to Shareholder solely in
Shareholder's capacity as a shareholder of the Company) or voting in
Shareholder's sole discretion on any matter other than those matters
contemplated by Section 3.
6. Representations and Warranties of Parent. Parent hereby represents and
warrants to Shareholder as follows:
6.1 Authorization, etc. Parent has all requisite power, authority
and legal capacity to execute and deliver this Agreement and to perform Parent's
obligations hereunder. This Agreement has been validly executed and delivered by
Parent and constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms, subject only to the
effect, if any, of (a) applicable bankruptcy and other similar laws affecting
the rights of creditors generally and (b) rules of law governing specific
performance, injunctive relief and other equitable remedies.
7. Miscellaneous.
7.1 Notices. All notices, requests, claims, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally, by facsimile (which is confirmed) or sent by
overnight courier (providing proof of delivery) to the parties hereto at the
following addresses (or at such other address for a party as shall be specified
by like notice):
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(a) if to Parent, to:
Natel Engineering Co., Inc.
0000 Xxxxxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Sheppard, Mullin, Xxxxxxx & Hampton LLP
1901 Avenue of the Stars, 00xx xxxxx
Xxx Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx, Esq.
Facsimile: (000) 000-0000
(b) if to Shareholder: To the address set forth on Exhibit A
hereof.
7.2 Independence of Obligations. The covenants and obligations of
Shareholder set forth in this Agreement shall be construed as independent of any
other agreement or arrangement between Shareholder, on the one hand, and the
Company or Parent, on the other. The existence of any claim or cause of action
by Shareholder against the Company or Parent shall not constitute a defense to
the enforcement of any of such covenants or obligations against Shareholder.
7.3 Specific Performance. Shareholder agrees that in the event that
any of the provisions of this Agreement are not performed in accordance with
their specific terms or are otherwise breached, monetary damages, even if
available, would be an inadequate remedy. Shareholder accordingly agrees that
Parent shall be entitled to an injunction or injunctions to prevent breaches of
this Agreement and to enforce specifically the terms and provisions of this
Agreement, this being in addition to any other remedy in any California State
court or any Federal court of the United States of America sitting in the State
of California to which Parent is entitled at law or in equity.
7.4 Severability. 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 so long as the economic or legal substance of
the transactions contemplated hereby is not affected in any manner materially
adverse to either party hereto. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, Parent and
Shareholder shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties hereto as closely as possible in a
mutually acceptable manner in order that the transactions contemplated hereby be
consummated as originally contemplated to the greatest extent possible.
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7.5 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the State of California, regardless of
the laws that might otherwise govern under applicable principles of conflict of
laws thereof.
7.6 WAIVER OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT
ANY CONTROVERSY WHICH MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE
COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE IT HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF
ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (A) 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
EITHER OF SUCH WAIVERS, (B) IT UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS
OF SUCH WAIVERS, (C) IT MAKES SUCH WAIVERS VOLUNTARILY, AND (D) IT HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 7.6.
7.7 Waiver. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of
Parent in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any claim arising
out of this Agreement, or any power, right, privilege or remedy under this
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of Parent; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
7.8 Attorneys' Fees. If any legal action or other legal proceeding
relating to this Agreement or the enforcement of any provision of this Agreement
is commenced, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements (in addition to any other relief to
which the prevailing party may be entitled).
7.9 Captions. The captions contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement
7.10 Entire Agreement. This Agreement (including the documents and
instruments referred to herein) constitutes the entire agreement, and supersedes
all prior agreements and understandings, both written and oral, between Parent
and Shareholder with respect to the subject matter of this Agreement.
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7.11 Non-Exclusivity. The rights and remedies of Parent under this
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Agreement, and the
obligations and liabilities of Shareholder under this Agreement, are in addition
to their respective rights, remedies, obligations and liabilities under common
law requirements and under all applicable statutes, rules and regulations.
7.12 Amendments. This Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of Parent and Shareholder.
7.13 Assignment; Binding Effect. Neither this Agreement nor any of
the rights, interests or obligations under this Agreement shall be assigned, in
whole or in part, by operation of law or otherwise by Shareholder without the
prior written consent of Parent. This Agreement, together with any of the
rights, interests or obligations under this Agreement may be assigned, in whole
or in part, by operation of law or otherwise by Parent without the prior written
consent of Shareholder upon advance written notice to Shareholder. Any
assignments in violation of the preceding sentences shall be void. Subject to
the preceding sentences, this Agreement shall be binding upon, inure to the
benefit of, and be enforceable by, Parent and Shareholder and their respective
permitted successors and assigns.
7.14 Expenses. All costs and expenses incurred in connection with
the transactions contemplated by this Agreement shall be paid by the party
incurring such costs and expenses.
7.15 Termination. This Agreement shall automatically terminate on
the Expiration Date; provided, however, that the termination of this Agreement
shall not relieve Shareholder from any liability for any previous breach of this
Agreement.
7.16 No Exercise Requirement. Nothing in this Agreement shall
obligate Shareholder to exercise or convert any options or other rights to
acquire shares of Company Common Stock that are Owned by Shareholder.
7.17 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties hereto and delivered to the other parties hereto.
7.18 Construction. For purposes of this Agreement, the definitions
contained in this Agreement are applicable to the singular as well as the plural
forms of such terms and to the masculine as well as to the feminine and neuter
genders of such term. The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
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EXHIBIT 2
IN WITNESS WHEREOF, Parent and Shareholder have caused this
Agreement to be executed as of the date first written above.
NATEL ENGINEERING COMPANY, INC.
By: ____________________________________
Name:
Title:
SHAREHOLDER
By: ____________________________________
Name:
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Exhibit A
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