VOTING AGREEMENT
EXHIBIT
3
This
Voting Agreement (this
"Agreement") is dated as of June 15, 2007, by and among Admiral ▇▇▇▇
Acquisition Sub, Inc., a Delaware corporation ("Acquisition Corp."), AVX
Corporation, a Delaware corporation ("Parent", and together with
Acquisition Corp., the "Purchaser Parties"), and the Persons executing
this Agreement as "Stockholders" on the signature page hereto (each a
"Stockholder" and collectively the "Stockholders").
WHEREAS,
simultaneously with the
execution of this Agreement, the Purchaser Parties and American Technical
Ceramics Corp., a Delaware corporation (the "Company"), have entered into
an Agreement and Plan of Merger (without giving effect to any amendment,
supplement or modification not approved by the Stockholders) (the "Merger
Agreement"), which provides, among other things, for the merger of
Acquisition Corp. with and into the Company, upon the terms and subject to
the
conditions set forth therein (the "Merger"); and
Section
1.1 Capitalized
Terms. Capitalized terms used in this Agreement and not defined
herein have the meanings ascribed to such terms in the Merger
Agreement.
Section
1.2 Other
Definitions. For the purposes of this Agreement:
(a) "Beneficial
Owner" or "Beneficial Ownership" with respect to any securities means
having "beneficial ownership" of such securities (as determined pursuant to
Rule
13d-3 under the Exchange Act).
(b) "Expiration
Time" has the meaning set forth in Section 2.1.
(c) "Legal
Actions" means any claims, actions, suits, demand letters, judicial,
administrative or regulatory proceedings, or hearings, notices of violation
or
investigations.
(d) "Owned
Common Stock" has the meaning set forth in Section 2.1.
(e) “Permits”
means all authorizations, licenses, consents, certificates, registrations,
approvals, orders and other permits of any Governmental
Entity.
(f) "Representative"
means, with respect to any particular Person, any director, officer, employee,
agent or other representative of such Person, including any consultant,
accountant, legal counsel or investment banker.
(g) "Common
Stock" has the meaning ascribed thereto in the Merger Agreement, and will
also include for purposes of this Agreement all Common Stock or other voting
securities into which Common Stock may be reclassified, sub-divided,
consolidated or converted during the term of this Agreement and any rights
and
benefits arising therefrom, including any dividends or distributions of
securities which may be declared in respect of the Common Stock during the
term
of this Agreement and which are entitled to vote in respect of the matters
contemplated by Article II.
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(h) "Transfer"
means, with respect to a security, the sale, grant, assignment, transfer,
pledge, encumbrance, hypothecation or other disposition of such security or
the
Beneficial Ownership thereof (other than by operation of Law), or the entry
into
any Contract to effect any of the foregoing, including, for purposes of this
Agreement, the transfer or sharing of any voting power of such security or
other
rights in or of such security, the granting of any proxy with respect to such
security, depositing such security into a voting trust or entering into a voting
agreement with respect to such security.
Section
2.1 Agreement
to Vote. Subject to the terms and conditions hereof, each
Stockholder agrees that, from and after the date hereof and until the
termination of this Agreement in accordance with Section 5.1 (the
"Expiration Time"), at any meeting (whether annual or special, and at
each adjourned or postponed meeting) of the Company's stockholders, however
called, or in any other circumstances (including any action sought by written
consent) upon which a vote or other consent or approval is sought relating
to
any of the matters set forth in clause (z) below (any such meeting or other
circumstance, a "Stockholder's Meeting"), such Stockholder will (y)
appear, unless otherwise expressly consented to in writing by the Purchaser
Parties, in their sole and absolute discretion, at such a meeting, or at such
Stockholder's option otherwise cause its Owned Common Stock to be counted as
present thereat, for purposes of calculating a quorum and respond to any other
request by the Company for written consent, if any, and (z) vote, or cause
to be
voted (including by written consent, if applicable) all of the Common Stock
Beneficially Owned by such Stockholder and over which such Stockholder has
voting control as of the relevant time (collectively, the "Owned Common
Stock") (A) in favor of the adoption of the Merger Agreement and the
approval of the transactions contemplated thereby, including the Merger, (B)
in
favor of the approval of any other matter to be approved by the stockholders
of
the Company to facilitate the transactions contemplated by the Merger Agreement,
including the Merger, (C) against any Acquisition Proposal or any transaction
contemplated by such Acquisition Proposal, (D) against any proposal made in
opposition to, or in competition or inconsistent with, the Merger or the Merger
Agreement, including the adoption thereof or the consummation thereof, (E)
against any extraordinary dividend, distribution or recapitalization by the
Company or change in the capital structure of the Company (other than pursuant
to or as explicitly permitted by the Merger Agreement), and (F) against any
action or agreement that would reasonably be expected to result in any condition
to the consummation of the Merger set forth in Article VI of the Merger
Agreement not being fulfilled.
Section
2.2 Additional
Common Stock. Each Stockholder hereby agrees, while this
Agreement is in effect, promptly to notify the Purchaser Parties of the number
of any new shares of Common Stock or Stock Options with respect to which
Beneficial Ownership and voting control is acquired by such Stockholder, if
any,
after the date hereof and before the Expiration Time. Any such Common Stock
shall automatically become subject to the terms of this Agreement as though
owned by such Stockholder as of the date hereof.
Section
2.3 Restrictions
on Transfer, Etc. Except as expressly provided for herein or in
the Merger Agreement, each Stockholder agrees, from the date hereof until the
Expiration Time, not to (i) directly or indirectly Transfer any Owned Common
Stock or Stock Options; (ii) tender any Owned Common Stock or Stock Options
into
any tender or exchange offer or otherwise; or (iii) otherwise restrict the
ability of such Stockholder freely to exercise all voting rights with respect
thereto. Any action attempted to be taken in violation of the preceding sentence
will be null and void. Notwithstanding the foregoing, each
Stockholder may make Transfers of Owned Common Stock for estate planning or
similar purposes or to such Stockholder's Affiliates, stockholders, members
or
partners so long as either (i) such Stockholder retains control over the voting
of such Owned Common Stock and agrees in writing prior to such Transfer to
continue to vote such Owned Common Stock in accordance with this Agreement,
or
(ii) the transferee agrees to be bound by the provisions of this
Agreement. Each Stockholder further agrees to authorize, and hereby
authorizes, the Purchaser Parties and the Company to notify the Company's
transfer agent that there is a stop transfer order with respect to all of the
Owned Common Stock and that this Agreement places limits on the transfer of
the
Owned Common Stock.
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Section
2.4 Proxy. Each
Stockholder hereby revokes any and all previous proxies granted with respect
to
its Owned Common Stock. If and to the extent that a Stockholder fails
to abide by the provisions of Section 2.1 hereof, such Stockholder hereby
grants a proxy appointing Parent, with full power of substitution, as such
Stockholder's attorney-in-fact and proxy, for and in such Stockholder's name,
to
be counted as present and to vote (including by written consent, if applicable)
or otherwise to act on behalf of the Stockholder with respect to its Owned
Common Stock solely with respect to the matters set forth in, and in the manner
contemplated by, Section 2.1. The proxy granted by each
Stockholder pursuant to this Section 2.4 is, subject to the penultimate
sentence of this Section 2.4, irrevocable and is coupled with an
interest, in accordance with Section 212(e) of the DGCL and is granted in order
to secure such Stockholder's performance under this Agreement and also in
consideration of the Purchaser Parties entering into this Agreement and the
Merger Agreement. If and only if any Stockholder fails for any reason
to be counted as present or to vote (including by written consent, if
applicable) such Stockholder's Owned Common Stock in accordance with the
requirements of Section 2.1 above, then, subject to the terms and
conditions hereof, Parent shall have the right to cause to be present or vote
such Stockholder's Owned Common Stock in accordance with the provisions of
Section 2.1. The proxy granted by each Stockholder shall be automatically
revoked upon termination of this Agreement in accordance with its terms. Each
Stockholder agrees, from the date hereof until the Expiration Time, not to
attempt to revoke, frustrate the exercise of, or challenge the validity of,
the
irrevocable proxy granted pursuant to this Section 2.4.
Section
3.1 Representations
and Warranties of Stockholders. Each Stockholder, severally as to
such Stockholder only and not jointly, represents and warrants to the Purchaser
Parties as of the date of this Agreement and at all times during the term of
this Agreement, as follows:
(a) Such
Stockholder has the requisite capacity and authority to execute and deliver
this
Agreement and to fulfill and perform such Stockholder's obligations hereunder.
This Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a legal, valid and binding agreement of such
Stockholder enforceable by the Purchaser Parties against such Stockholder in
accordance with its terms.
(b) The
number of shares of Common Stock constituting Owned Common Stock of such
Stockholder as of the date hereof, and the number of votes which the holder
of
such Common Stock shall be entitled to cast in respect of any matter as to
which
holders of Common Stock are entitled to cast votes with a record date as of
the
date hereof, are set forth next to such Stockholder's name on Schedule A
of this Agreement. Except as provided in this Agreement, such
Stockholder has the power to vote all of such Stockholder's Owned Common Stock
with respect to any of the matters set forth in clause (z) of Section 2.1
without the consent or approval of, or any other action on the part of, any
other Person, and has not granted any proxy that is still effective or entered
into any voting or similar agreement with respect to such Stockholder's Owned
Common Stock which is inconsistent with this Agreement. The Owned
Common Stock set forth next to such Stockholder's name on Schedule A
hereto constitutes all of the capital stock of the Company that such Stockholder
has the right to vote as of the date hereof, and, except for the shares of
Common Stock shown as Beneficially Owned by such Stockholder on Schedule
A of this Agreement, as of the date hereof such Stockholder and such
Stockholder's Affiliates do not Beneficially Own or have any right to acquire
(whether currently, upon lapse of time, following the satisfaction of any
conditions, upon the occurrence of any event or any combination of the
foregoing) any Common Stock or any securities convertible into Common Stock
(including stock options).
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(c) Other
than the filing by such Stockholder of any reports with the SEC required by
Section 13(d) or 16(a) of the Exchange Act, none of the execution and delivery
of this Agreement by such Stockholder, the consummation by such Stockholder
of
the actions contemplated hereby or compliance by such Stockholder
with any of the provisions hereof (i) requires any consent or other Permit
of,
or filing with or notification to, any Governmental Entity or any other Person
by such Stockholder, (ii) results in a violation or breach of, or constitutes
(with or without notice or lapse of time or both) a default (or gives rise
to
any third party right of termination, cancellation, modification or
acceleration) under any of the terms, conditions or provisions of, any
organizational document or material Contract to which such Stockholder is a
party or by which such Stockholder or any of such Stockholder's properties
or
assets (including such Stockholder's Owned Common Stock) may be bound, (iii)
violates any Order or Law applicable to such Stockholder or any of such
Stockholder's properties or assets (including such Stockholder's Owned Common
Stock), or (iv) results in a Lien upon any of such Stockholder's properties
or
assets (including such Stockholder's Owned Common Stock), in each case where
the
failure to obtain such consent or Permit or make such filing or notification,
or
which violation, breach or default, or which Lien, would have the effect of
impeding, interfering with, or adversely affecting the performance by such
Stockholder of its obligations under this Agreement.
Section
4.1 Waiver
of Appraisal Rights. Each Stockholder hereby waives any rights of
appraisal (including, without limitation, under Section 262 of the DGCL) or
rights of dissent from the Merger that such Stockholder may have.
Section
4.2 Disclosure. Each
Stockholder, severally and not jointly, hereby authorizes the Purchaser Parties
and the Company to publish and disclose in any announcement or disclosure
required by the SEC or other Governmental Entity such Stockholder's identity
and
ownership of the Owned Common Stock and the nature of such Stockholder's
obligation under this Agreement; provided that the Purchaser Parties shall
first
provide each Stockholder with a copy of such announcement or disclosure and give
such Stockholders a reasonable period of time to review and comment on
same.
Section
4.3 Non-Interference;
Further Assurances. Each Stockholder agrees that, prior to the
termination of this Agreement, such Stockholder shall not take any action that
would make any representation or warranty of such Stockholder contained herein
materially untrue or incorrect or have the effect of preventing, impeding,
interfering with or adversely affecting the performance by such Stockholder
of
its obligations under this Agreement. Each Stockholder agrees, without further
consideration, to execute and deliver such additional documents and to take
such
further actions as necessary or reasonably requested by the Purchaser Parties
to
confirm and assure the rights and obligations set forth in this Agreement or
to
consummate the actions contemplated by this Agreement.
Section
4.4 No
Solicitation. Prior to the termination of this Agreement, subject
to Section 6.18, each Stockholder agrees that it shall not, and shall
direct its Representatives not to, directly or indirectly, (i) solicit,
initiate, encourage or take any other action to facilitate (including by way
of
furnishing or disclosing information) any Acquisition Proposal, (ii) enter
into
any agreement, arrangement or understanding with respect to any Acquisition
Proposal (including any letter of intent, memorandum of understanding or
agreement in principle) or enter into any agreement, arrangement or
understanding (including any letter of intent, memorandum of understanding
or
agreement in principle) which requires, or is intended to or which could
reasonably be expected to result in, the abandonment, termination or the failure
to consummate the Merger or any other transaction contemplated by the Merger
Agreement, (iii) initiate or participate in any way in any negotiations or
discussions regarding, or furnish or disclose to any Person (other than a party
to the Merger Agreement) any information with respect to any Acquisition
Proposal, or (iv) resolve, propose or agree to do any of the foregoing. If,
prior to the Expiration Time, a Stockholder receives a proposal with respect
to
the purchase of any Owned Common Stock, such Stockholder agrees that promptly
on
the date of receipt thereof, the Stockholder shall advise Parent orally and
in
writing of such proposal and the terms and conditions of such proposal
(including the identity of the Person making such proposal) and the Stockholder
shall promptly provide to Parent copies of any written materials received by
the
Stockholder in connection with the foregoing, and the identity of the Person
or
group making any such proposal or with whom any discussions or negotiations
are
taking place. The Stockholder agrees that it shall keep Parent reasonably
informed of the status and details (including amendments or proposed amendments)
of any such proposal and keep Parent reasonably informed as to the details
of
all discussions or negotiations with respect to any such proposal.
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V. TERMINATION
Section
5.1 Termination. This
Agreement shall terminate without further action upon the earliest to occur
of
the following: (a) the termination of the Merger Agreement in
accordance with its terms, (b) the written consent of the parties hereto, (c)
the Effective Time, and (d) the withdrawal or modification of the Company
Recommendation.
Section
5.2 Effect
of Termination. Upon termination of this Agreement, the rights
and obligations of all the parties will terminate and become void without
further action by any party, except that (a) the provisions of Section
5.1, this Section 5.2 and Article VI will survive such
termination and (b) the termination of this Agreement shall not relieve any
party of liability for any material breach of this Agreement prior to the time
of termination.
VI. GENERAL
Section
6.1 Notices. Any
notice, request, instruction or other communication under this Agreement shall
be in writing and delivered by hand or overnight courier service or by
facsimile, to the address and facsimile number set forth below such
Stockholder's or Purchaser Party's name on the signature page hereto, or to
such
other Persons, addresses or facsimile numbers as may be designated in writing
by
the Person entitled to receive such communication as provided above. Each such
communication, if to a Stockholder, will be effective (A) if delivered by hand
or overnight courier service, when such delivery is made at the address
specified in this Section 6.1, or (B) if delivered by facsimile, when
such facsimile is transmitted to the facsimile number specified in this
Section 6.1 and appropriate confirmation is received, and provided it is
also confirmed by some other means permitted by this Section 6.1.
Section
6.2 Parties
in Interest. Other than with respect to the parties to this
Agreement, and except as provided in Section 6.6, nothing in this Agreement,
express or implied, is intended to or shall confer upon any person any right,
benefit or remedy of any nature whatsoever under or by reason of this
Agreement.
Section
6.3 Governing
Law. This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without giving effect to
any
applicable principles of conflict of laws that would cause the Laws of another
state otherwise to govern this Agreement.
Section
6.4 Severability. The
provisions of this Agreement are severable and the invalidity or
unenforceability of any provision will not affect the validity or enforceability
of the other provisions of this Agreement. If any provision of this Agreement,
or the application of that provision to any Person or any circumstance, is
invalid or unenforceable in any jurisdiction, (i) a suitable and equitable
provision will be substituted for that provision in order to carry out, so
far
as may be valid and enforceable, the intent and purpose of the invalid or
unenforceable provision and (ii) the remainder of this Agreement and the
application of that provision, to other Persons or circumstances will not be
affected by such invalidity or unenforceability, nor will such invalidity or
unenforceability affect the validity or enforceability of that provision, or
the
application of that provision, in any other jurisdiction.
Section
6.5 Assignment. Neither
this Agreement nor any right, interest or obligation hereunder may be assigned,
in whole or part (other than by operation of Law), (a) by any Stockholder,
without the prior written consent of the Purchaser Parties, or (b) by any
Purchaser Party, without the prior written consent of the Stockholders, and
any
attempt to do so shall be null and void.
Section
6.6 Successors
and Assigns. This Agreement shall be binding upon and shall inure
to the benefit of and be enforceable by the parties and their respective
successors and permitted assigns, including, without limitation, in the case
of
each Stockholder, any trustee, executor, heir, legatee or personal
representative succeeding to the power to vote such Stockholder's Common Stock
or other securities subject to this Agreement by operation of Law (including
as
a result of the death, disability or incapacity of such
Stockholder).
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Section
6.7 Interpretation. The
headings in this Agreement are for reference only and do not affect the meaning
or interpretation of this Agreement. Definitions apply equally to both the
singular and plural forms of the terms defined. Whenever the context may
require, any pronoun includes the corresponding masculine, feminine and neuter
forms. All references in this Agreement to Articles and Sections refer to
Articles and Sections of this Agreement unless the context requires otherwise.
The words "include," "includes" and "including" are not limiting and will be
deemed to be followed by the phrase "without limitation." The phrases "herein,"
"hereof," "hereunder" and words of similar import shall be deemed to refer
to
this Agreement as a whole and not to any particular provision of this Agreement.
The word "or" shall be inclusive and not exclusive unless the context requires
otherwise. References herein to federal, state, local or other applicable Laws
refer to the laws of the United States. All references in this Agreement to
any
particular Law will be deemed to refer also to (i) any rules and regulations
promulgated under that Law and (ii) any comparable Law of any other jurisdiction
addressing the same subject matter and any rules and regulations promulgated
under such comparable Law.
Section
6.8 Amendments. This
Agreement may not be amended except by the express written agreement signed
by
the Purchaser Parties, on the one hand, and each Stockholder to which such
amendment is meant to apply, on the other hand.
Section
6.9 Extension;
Waiver. At any time prior to the Effective Time, the Purchaser
Parties, on the one hand, and each Stockholder, on the other hand, may (i)
extend the time for the performance of any of the obligations of the other
party, (ii) waive any inaccuracies in the representations and warranties of
the
other party contained in this Agreement or in any document delivered under
this
Agreement or (iii) waive compliance by the other party with any of the covenants
or conditions contained in this Agreement. Any agreement on the part of a party
to any extension or waiver will be valid only if set forth in an instrument
in
writing signed by such party. The failure of any party to assert any of its
rights under this Agreement or otherwise will not constitute a waiver of such
rights.
Section
6.10 Fees
and Expenses. Except as expressly provided in this Agreement or
the Merger Agreement, each party is responsible for its own fees and expenses
(including the fees and expenses of financial consultants, investment bankers,
accountants and legal counsel) in connection with the entry into of this
Agreement and the consummation of the actions contemplated hereby.
Section
6.11 Entire
Agreement. This Agreement constitutes the entire agreement, and
supersedes all other prior agreements, understandings, representations and
warranties, both written and oral, among the parties to this Agreement with
respect to the subject matter of this Agreement.
Section
6.12 No
Strict Construction. The parties to this Agreement have been
represented by counsel during the negotiation and execution of this Agreement
and waive the application of any Laws or rule of construction providing that
ambiguities in any agreement or other document will be construed against the
party drafting such agreement or other document.
Section
6.13 Remedies
Cumulative. Except as otherwise provided in this Agreement, any
and all remedies expressly conferred upon a party to this Agreement will be
cumulative with, and not exclusive of, any other remedy contained in this
Agreement, at law or in equity. The exercise by a party to this Agreement of
any
one remedy will not preclude the exercise by it of any other
remedy.
Section
6.14 Counterparts;
Effectiveness. This Agreement may be executed in two or more
identical counterparts, all of which shall be considered one and the same
agreement. This Agreement will become effective and binding upon each
Stockholder when executed by such Stockholder and the Purchaser Parties. In
the
event that any signature to this Agreement or any amendment hereto is delivered
by facsimile transmission or by e-mail delivery of a ".pdf' format data file,
such signature shall create a valid and binding obligation of the party
executing (or on whose behalf such signature is executed) with the same force
and effect as if such facsimile or ".pdf' signature page were an original
thereof. No party hereto shall raise the use of a facsimile machine or
e mail delivery of a ".pdf' format data file to deliver a signature
to this Agreement or any amendment hereto or the fact that such signature was
transmitted or communicated through the use of a facsimile machine or e-mail
delivery of a ".pdf' format data file as a defense to the formation or
enforceability of a contract and each party hereto forever waives any such
defense.
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Section
6.15 Specific
Performance. The parties to this Agreement 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 prior to the termination of this
Agreement in accordance with Article V the parties to this Agreement will
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 each case without the necessity of posting bond or other security
or showing actual damages, this being in addition to any other remedy to which
they are entitled at law or in equity.
Section
6.16 Submission
to Jurisdiction. Each of the parties hereto irrevocably agrees
that any Legal Action or proceeding with respect to this Agreement and the
rights and obligations arising hereunder, or for recognition and enforcement
of
any judgment in respect of this Agreement and the rights and obligations arising
hereunder brought by the other party hereto or its successors or assigns, shall
be brought and determined exclusively in the state or federal courts for the
State of Delaware. Each of the parties hereto hereby irrevocably submits with
regard to any such action or proceeding for itself and in respect of its
property, generally and unconditionally, to the personal jurisdiction of the
aforesaid courts and agrees that it will not bring any action relating to this
Agreement or any of the actions contemplated by this Agreement in any court
or
tribunal other than the aforesaid courts. Each of the parties hereto hereby
irrevocably waives, and agrees not to assert, by way of motion, as a defense,
counterclaim or otherwise, in any action or proceeding with respect to this
Agreement and the rights and obligations arising hereunder or for recognition
and enforcement of any judgment in respect of this Agreement and the rights
and
obligations arising hereunder, (a) any claim that it is not personally subject
to the jurisdiction of the above named courts for any reason other than the
failure to serve process in accordance with this Section 6.16, (b) any
claim that it or its property is exempt or immune from jurisdiction of any
such
court or from any legal process commenced in such courts (whether through
service of notice, attachment prior to judgment, attachment in aid of execution
of judgment, execution of judgment or otherwise), and (c) to the fullest extent
permitted by the applicable Law, any claim that (i) the suit, action or
proceeding in such court is brought in an inconvenient forum, (ii) the venue
of
such suit, action or proceeding is improper, or (iii) this Agreement, or the
subject matter hereof, may not be enforced in or by such courts. Each of the
parties hereto agrees that mailing of process or other papers in connection
with
any such action or proceeding in the manner provided in Section 6.1, or
in such other manner as may be permitted by applicable Laws, will be valid
and
sufficient service thereof.
Section
6.17 WAIVER
OF JURY TRIAL. EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY
CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED
AND DIFFICULT ISSUES AND, THEREFORE, EACH SUCH PARTY IRREVOCABLY AND
UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT
OF
ANY LITIGATION, CONTROVERSY OR OTHER LEGAL ACTION DIRECTLY OR INDIRECTLY ARISING
OUT OF OR RELATING TO THIS AGREEMENT OR THE ACTIONS CONTEMPLATED BY THIS
AGREEMENT. EACH PARTY TO THIS AGREEMENT CERTIFIES AND ACKNOWLEDGES THAT (A)
NO
REPRESENTATIVE OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE,
THAT
SUCH OTHER PARTY WOULD NOT SEEK TO ENFORCE THE FOREGOING WAIVER IN THE EVENT
OF
A LEGAL ACTION, (B) SUCH PARTY HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER,
(C) SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) SUCH PARTY HAS BEEN
INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS
AND CERTIFICATIONS IN THIS SECTION 6.17.
Section
6.18 Action
in Stockholder Capacity Only. The parties acknowledge that this
Agreement is entered into by each Stockholder solely in such Stockholder's
capacity as the Beneficial Owner of such Stockholder's Owned Common Stock and
nothing in this Agreement restricts or limits any action taken by such
Stockholder solely in its capacity as a director or officer of the Company
(but
not on its own behalf as a stockholder) and the taking of any actions (or
failure to act) solely in its capacity as an officer or director of the Company
will not be deemed to constitute a breach of this Agreement.
Section
6.19 Several
Obligations. Each of the representations, warranties, covenants,
agreements and obligations of the Stockholders contained in this Agreement
are
several as to each such Stockholder only and not joint.
Section
6.20 Additional
Stockholders. Additional Stockholders shall become a party to
this Agreement upon their execution of this Agreement. Any such additional
Stockholders who become parties to this Agreement shall not affect the rights
and obligations of any other party hereto.
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PURCHASER
PARTIES:
ADMIRAL
▇▇▇▇ ACQUISITION SUB, INC.
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
AVX
CORPORATION
By: /s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇▇▇
Title: President
STOCKHOLDERS:
/s/
▇▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇▇
▇▇▇▇▇▇▇
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇, as Trustee of the ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
2006
Annuity Trust u/a/d April 7, 2006
/s/
▇▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇▇
▇▇▇▇▇▇▇, as Trustee of the
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
2005Annuity
Trust u/a/d May
3, 2005
-8-
SCHEDULE
A
BENEFICIAL
OWNERSHIP OF COMPANY COMMON STOCK
|
Stockholder
|
Beneficial
Ownership (Including Owned
Common
Stock)
|
Owned
Common Stock
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇
|
4,017,8211
|
4,017,821
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ 2006 Annuity Trust u/a/d April 7, 2006
|
208,215
|
208,215
|
|
▇▇▇▇▇▇
▇▇▇▇▇▇▇ 2005 Annuity Trust u/a/d May 3, 2005
|
179,244
|
179,244
|