Contract
Exhibit
99.1
TENDER
AND VOTING AGREEMENT, dated as of February 23, 2009 (this “Agreement”), among
Exar Corporation, a Delaware corporation (“Parent”), and the
persons listed on Exhibit A hereto (each, a “Stockholder” and
collectively, the “Stockholders”).1
WHEREAS
Parent, Hybrid Acquisition Corp., a Delaware corporation (“Sub”) and hi/fn,
inc., a Delaware corporation (the “Company”) propose to
enter into an Agreement and Plan of Merger dated as of the date hereof (as the
same may be amended or supplemented, the “Merger Agreement”;
capitalized terms used but not defined herein shall have the meanings set forth
in the Merger Agreement) providing for the merger of Sub with and into the
Company;
WHEREAS
each Stockholder owns the number of shares of Company Common Stock set forth
opposite its name on Schedule A hereto
(such shares of Company Common Stock, together with any other shares of capital
stock of the Company acquired by the Stockholder after the date hereof and
during the term of this Agreement, being collectively referred to herein as the
“Subject
Shares”); and
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, Parent has
requested that the Stockholders enter into this Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
Section
1. Representations and
Warranties of the Stockholders. Each Stockholder hereby
represents and warrants to Parent as follows:
(a) Authority; Execution and
Deliver; Enforceability. The Stockholder has all requisite
power and authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by the Stockholder of
this Agreement and consummation of the transactions contemplated hereby have
been duly authorized by all necessary action on the part of such
Stockholder. The Stockholder has duly executed and delivered this
Agreement, and this Agreement constitutes the legal, valid and binding
obligation of the Stockholder, enforceable against the Stockholder in accordance
with its terms (subject to the effect of (i) applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in effect
relating to rights of creditors generally and (ii) rules of law and equity
governing specific performance, injunctive relief and other equitable
remedies). The execution and delivery by the Stockholder of this
Agreement do not, and the consummation of the transactions contemplated hereby
and compliance with the terms hereof will not, conflict with, or result in any
violation of, or default (with or without notice or lapse of time, or both)
under any provision of any Contract to which the Stockholder is a party or by
which any properties or assets of the Stockholder are bound or, subject to the
filings and other matters referred to in the next sentence, any provision of any
Judgment or applicable Law applicable to the Stockholder or the properties or
assets of the Stockholder. No Consent
of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by or with respect to the Stockholder in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than such reports under Sections 13(d)
and 16 of the Exchange Act as may be required in connection with this Agreement
and the transactions contemplated hereby.
(b) The Subject
Shares. The Stockholder is the record and beneficial owner of
and has good and marketable title to, the Subject Shares, free and clear of any
Liens. The Stockholder does not own, of record or beneficially, any
shares of capital stock of the Company other than the Subject
Shares. The Stockholder has the sole right to vote the Subject
Shares, and none of the Subject Shares is subject to any voting trust or other
agreement, arrangement or restriction with respect to the voting of the Subject
Shares, except as contemplated by this Agreement.
(c) Brokers. No
broker, investment banker, financial advisor or other person is entitled to any
broker’s, finder’s, financial advisor’s or other similar fee or commission in
connection with the Merger and the other Transactions based upon arrangements
made by or on behalf of the Stockholder.
(d) Merger
Agreement. The Stockholder understands and acknowledges
that Parent is entering into, and causing Sub to enter into, the Merger
Agreement in reliance upon the Stockholder’s execution and delivery of this
Agreement.
Section
2. Representations and
Warranties of Parent. Parent hereby represents and warrants to
the Stockholders as follows: Parent has all requisite corporate power and
authority to execute this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery by Parent of this
Agreement and consummation of the transactions contemplated hereby have been
duly authorized by all necessary action on the part of Parent. Parent
has duly executed and delivered this Agreement, and this Agreement constitutes
the legal, valid and binding obligation of Parent, enforceable against Parent in
accordance with its terms (subject to the effect of (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws now or hereafter in
effect relating to rights of creditors generally and (ii) rules of law and
equity governing specific performance, injunctive relief and other equitable
remedies). The execution and delivery by Parent of this Agreement do
not, and the consummation of the transactions contemplated hereby and compliance
with the terms hereof will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under any provision
of any Contract to which Parent is a party or by which any properties or assets
of Parent are bound or, subject to the filings and other matters referred to in
the next sentence, any provision of any Judgment or applicable Law applicable to
Parent or the properties or assets of Parent. No Consent of, or
registration, declaration or filing with, any Governmental Entity is required to
be obtained or made by or with respect to Parent in connection with the
execution, delivery and performance of this Agreement or the consummation of the
transactions contemplated hereby, other than such reports by Parent under
Sections 13(d) and 16 of the Exchange Act as may be required in connection with
this Agreement and the transactions contemplated hereby.
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Section
3. Agreement to Tender and
Vote; Other Covenants of the Stockholders. Each Stockholder
covenants and agrees as follows:
(a) Agreement to
Tender. The Stockholder shall accept the Offer with respect to
all the Subject Shares of the Stockholder and tender all the Subject Shares of
the Stockholder pursuant to the Offer as promptly as practicable after the
commencement of the Offer, but in any event not later than the 10th
business day after the commencement of the Offer. Such tender shall
be made within ten business days of commencement of the Offer. The Stockholder
shall not withdraw any Subject Shares tendered pursuant to the Offer unless the
Offer shall have been terminated in accordance with the terms of the Merger
Agreement.
(b) Agreement to Vote.
(1) In Favor of
Merger. At any meeting of the stockholders of the Company
called to seek the Company Stockholder Approval or at any postponement or
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval with respect to the Merger Agreement, any other Transaction
Agreement, the Offer or the Merger, or any other Transaction is sought, the
Stockholder (i) shall, if a meeting is held, appear at such meeting or otherwise
cause the Subject Shares to be counted as present at such meeting for purposes
of establishing a quorum and (ii) shall vote (or cause to be voted) the Subject
Shares in favor of granting the Company Stockholder Approval.
(2) Against Other
Transactions. At any meeting of stockholders of the Company or
at any postponement or adjournment thereof or in any other circumstances upon
which the Stockholder’s vote, consent or other approval is sought, the
Stockholder shall vote (or cause to be voted) the Subject Shares against (i) any
merger agreement or merger (other than the Merger Agreement and the Merger),
consolidation, combination, sale of substantial assets, reorganization,
recapitalization, dissolution, liquidation or winding up of or by the Company,
(ii) any Company Takeover Proposal and (iii) any amendment of the Company
Charter or the Company Bylaws or other proposal or transaction involving the
Company or any Company Subsidiary, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify any
provision of the Merger Agreement or any other Transaction Agreement, the
Merger, or any other Transaction or change in any manner the voting rights of
any class of Company Capital Stock. The Stockholder shall not take or
commit or agree to take any action inconsistent with the foregoing.
(3) Revoke Other
Proxies. The Stockholder represents that any proxies
heretofore given in respect of the Subject Shares that may still be in effect
are not irrevocable, and such proxies are hereby revoked.
(4) IRREVOCABLE
PROXY. The Stockholder hereby irrevocably grants to, and
appoints, Parent, and any individual designated in writing by Parent, and each
of them individually, as the Stockholder’s proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of the Stockholder,
to vote the Subject Shares, or grant a consent or approval in respect of the
Subject Shares in a manner consistent with this Section 3(b). The
Stockholder understands and
3
acknowledges
that Parent is entering into the Merger Agreement in reliance upon the
Stockholder’s execution and delivery of this Agreement. The
Stockholder hereby affirms that the irrevocable proxy set forth in this Section
3(b) 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 the
Stockholder under this Agreement. The Stockholder hereby further
affirms that the irrevocable proxy is coupled with an interest and may under no
circumstances be revoked. The Stockholder 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 in accordance with the provisions of Section 212(e) of the
DGCL. The irrevocable proxy granted hereunder shall automatically
terminate upon the termination of this Agreement. Upon delivery of
written request to do so by Parent, each such Stockholder shall as promptly as
practicable execute and deliver to Parent a separate written instrument or proxy
that embodies the terms of the irrevocable proxy set forth in this Section
3(b).
(c) No
Transfer. Other than pursuant to this Agreement, the
Stockholder shall not (i) sell, transfer, pledge, assign or otherwise dispose of
(including by gift, merger or operation of law), encumber, hedge or utilize a
derivative to transfer the economic interest in (collectively, “Transfer”), or enter
into any Contract, option or other arrangement (including any profit sharing
arrangement) with respect to the Transfer of, any Subject Shares to any person
other than pursuant to the Offer and the Merger, (ii) enter into any voting
arrangement, whether by proxy, voting agreement, voting trust or otherwise
(including pursuant to any loan of Subject Shares), with respect to any Subject
Shares, (iii) take any action that would make any representation or warranty of
such Stockholder herein untrue or incorrect or have the effect of preventing or
disabling the Stockholder from performing its obligations hereunder, or (iv)
commit or agree to take any of the foregoing actions.
(d) Public
Statement. The Stockholder shall not issue any press release
or make any other public statement with respect to any Transaction Agreement,
the Offer or the Merger or any other Transaction without the prior consent of
Parent and the Company, except as may be required by applicable
Law.
(e) Waiver of Appraisal
Rights. The Stockholder hereby consents to and approves the
actions taken by the Company Board in approving the Transaction Agreements, the
Offer and the Merger, and the other Transactions. The Stockholder
hereby waives, and agrees not to exercise or assert, any appraisal rights under
Section 262 of the DGCL in connection with the Merger.
Section
4. Termination. This
Agreement shall terminate upon the earliest of (i) the Effective Time or (ii)
the termination of the Merger Agreement in accordance with its terms, other than
with respect to the liability of any party for willful breach hereof prior to
such termination. Upon termination of this Agreement, the Stockholder
shall be permitted to withdraw, and shall be deemed to have validly and timely
withdrawn, the Shares pursuant to the Offer.
4
Section
5. Additional
Matters. The Stockholder shall, from time to time, execute and
deliver, or cause to be executed and delivered, such additional or further
consents, documents and other instruments as Parent may reasonably request for
the purpose of effectively carrying out the transactions contemplated by this
Agreement.
Section
6. General
Provisions. (a) Amendments. This
Agreement may not be amended except by an instrument in writing signed by each
of the parties hereto.
(b) Notice. All
notices and other communications hereunder shall be in writing and shall be
deemed given if delivered personally or sent by overnight courier (providing
proof of delivery) to Parent in accordance with Section 9.02 of the Merger
Agreement and to each Stockholder at its address set forth on Schedule A hereto (or
at such other address for a party as shall be specified by like
notice).
(c) Interpretation. When
a reference is made in this Agreement to Sections, such reference shall be to a
Section to this Agreement unless otherwise indicated. The headings
contained in this Agreement are for reference purposes only and shall not affect
in any way the meaning or interpretation of this Agreement. Wherever
the words “include”, “includes” or “including” are used in this Agreement, they
shall be deemed to be followed by the words “without limitation”.
(d) Severability. If
any term or other provision of this Agreement is invalid, illegal or incapable
of being enforced by any rule or 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 in an acceptable manner to the end
that transactions contemplated hereby are fulfilled to the extent
possible.
(e) Counterparts. This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement. This Agreement shall become
effective against Parent when one or more counterparts have been signed by
Parent and delivered to the Stockholder. This Agreement shall become
effective against the Stockholder when one or more counterparts have been
executed by the Stockholder and delivered to Parent. Each party need
not sign the same counterpart.
(f) Entire Agreement; No
Third-Party Beneficiaries. This Agreement (i) constitutes the
entire agreement and supersedes all prior agreements, understandings and
representations, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(g) Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the laws of the State of Delaware, without regard to the
conflicts of laws principles of such State.
5
(h) Assignment. 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 Parent without the prior written consent of the Stockholder or by
the Stockholder without the prior written consent of Parent, and any purported
assignment without such consent shall be void. Subject to the
preceding sentence, this Agreement will be binding upon, inure to the benefit
of, and be enforceable by, the parties and their respective successors and
assigns.
(i) Enforcement. The
parties agree that irreparable damage would occur in the event that any of the
provisions of this Agreement were not performed in accordance with their
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
of this Agreement in any federal court located in the State of Delaware or in
any Delaware state court, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the
parties hereto (a) consents to submit itself to the exclusive personal
jurisdiction of the Court of Chancery of the State of Delaware, New Castle
County, or, if that court does not have jurisdiction, a federal court sitting in
Wilmington, Delaware in the event any dispute arises out of this Agreement or
any Transaction, (b) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court,
(c) agrees that it will not bring any action relating to this Agreement or any
Transaction in any other court and (d) WAIVES ANY RIGHT TO TRIAL BY JURY WITH
RESPECT TO ANY ACTION RELATED TO OR ARISING OUT OF THIS AGREEMENT OR ANY
TRANSACTION CONTEMPLATED HEREBY.
(j) Directors and
Officers. Notwithstanding any provision of this Agreement to
the contrary, but subject to the limitations set forth in the Merger Agreement,
nothing in this Agreement shall limit or restrict the Stockholder from acting in
his capacity as a director or officer of the Company (it being understood that
this Agreement shall apply to the Stockholder solely in the Stockholder’s
capacity as a stockholder of the Company).
[Remainder
of Page Intentionally Blank]
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IN
WITNESS WHEREOF, each party has duly executed this Agreement, all as of the date
first written above.
| EXAR CORPORATION |
| By |
/s/ Xxxxx X.
Xxxxxxxxx
|
|
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Name:
Xxxxx (Xxxx) X. Xxxxxxxxx
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Title:
President and Chief Executive
Officer
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7
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STOCKHOLDERS:
|
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/s/
Xxxxxx X. Xxxxxxx
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Xxxxxx
X. Xxxxxxx
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/s/ Xxxxxxx X.
Xxxxxxx, Ph.D.
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Xxxxxxx
X. Xxxxxxx, Ph.D.
|
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/s/
Xxxxxx X. Xxxxx
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Xxxxxx
X. Xxxxx
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/s/
Xxxxxxx X. Xxxxxx
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Xxxxxxx
X. Xxxxxx
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/s/
Xxxx E. G. Xxxxx
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Xxxx
E. G. Matze
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/s/
Xxxxx Xxxxxxx
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Xxxxx
Xxxxxxx
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/s/
Xxxxxx Xxxx
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Xxxxxx
Xxxx
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/s/
Xxxxxxx Xxxxxx
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Xxxxxxx
Xxxxxx
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/s/
Xxxxxxx Xxxx, Ph.D.
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Xxxxxxx
Xxxx, Ph.D.
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/s/
Xxxxxxx X. Xxxxxxx
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Xxxxxxx
X. Xxxxxxx
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8
SCHEDULE
A
|
Name
and Address
of Stockholder
|
Number
of Shares of
Company
Common Stock Owned
|
||
|
Xxxxxx
X. Xxxxxxx
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
425,832
|
||
|
Xxxxxxx
X. Xxxxxxx, Ph.D.
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
215,565
|
||
|
Xxxxxx
X. Xxxxx
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
66,498
|
||
|
Xxxxxxx
X. Xxxxxx
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
54,746
|
||
|
Xxxx
E. G. Matze
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
49,167
|
||
|
Xxxxx
Xxxxxxx
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
0
|
||
|
Xxxxxx
Xxxx
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
1,667
|
||
|
Xxxxxxx
Xxxxxx
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
0
|
||
|
Xxxxxxx
Xxxx
c/o
hi/fn, inc.
|
2,500
|
9
|
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
|||
|
Xxxxxxx
X. Xxxxxxx
c/o
hi/fn, inc.
000
Xxxxxxxxxx Xxxxxx
Xxx
Xxxxx, XX 00000
|
1,917
|
10
