1
EXHIBIT 9.2
SECOND AMENDED AND RESTATED VOTING AGREEMENT
This Second Amended and Restated Voting Agreement (the "Agreement") is
made and entered into as of August 24, 1998, by and between Electronic Designs,
Inc., a Delaware corporation ("EDI"), and the undersigned stockholder (the
"Stockholder") of Xxxxxx Instrument Corporation, an Indiana corporation (the
"Company").
RECITALS
A. EDI, the Company and Acquisition Subsidiary, a Delaware
corporation and a wholly owned subsidiary of the Company ("Sub"), have entered
into an Agreement and Plan of Merger, dated May 3, 1998, as amended (the "Merger
Agreement"), which provides for the merger (the "Merger") of Sub with and into
EDI. Pursuant to the Merger, shares of common stock of EDI will be converted
into common stock of the Company 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").
C. EDI 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
2
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 EDI, to permit EDI to vote such
Shares and New Shares directly.
3. Irrevocable Proxy. By execution of this Agreement, Stockholder
does hereby appoint and constitute EDI, 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 EDI as follows:
4.1 Due Authority. Stockholder has full power, corporate or
otherwise, and authority to execute and deliver this Agreement and to perform
his 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
2
3
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, except as set forth on
Schedule A attached hereto, 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 a Xxxxxx Takeover Proposal, (ii)
enter into any agreement with respect to a Xxxxxx 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 a Xxxxxx
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 a Xxxxxx
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 a Xxxxxx 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 his representatives or designees who are
serving on the Board of Directors of the Company from exercising his 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 EDI to carry out the intent of the Agreement.
3
4
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:
4
5
If to EDI: Electronic Designs, Inc.
Xxx Xxxxxxxx Xxxxx
Xxxxxxxxxxx, XX
Attention: Xxxxxx X. XxXxxxxxxx
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, P.C.
If to the Stockholder: To the address for notice set forth on
the last page hereof
with a copy to: Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: XxXxxx Xxxxxx, Esq.
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
5
6
hereto unless and until (i) the Board of Directors of the Company has approved,
for purposes of Section 23-1-43-18 of the Indiana Business Corporation Law and
any applicable provision of the Company's Articles of Incorporation, the
possible acquisition of the Shares by EDI pursuant to this Agreement, (ii) the
Merger Agreement is executed by all parties thereto, and (iii) this Agreement is
executed by all parties hereto.
6
7
IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the date and year first above written.
ELECTRONIC DESIGNS, INC.
By: /s/ Xxxxxx X. XxXxxxxxxx
--------------------------------------------
Name: Xxxxxx X. XxXxxxxxxx
Title: President
STOCKHOLDER:
By: /s/ Xxxxxx X. Xxxxx
--------------------------------------------
Xxxxxx X. Xxxxx
Stockholder's Address for Notice:
0000 X. Xxxxxxxxxx Xxxxx
------------------------------------------------
Xxxxxxx, XX 00000
-----------------
Shares beneficially owned:
1,495,866 shares of Common Stock of Xxxxxx
Instrument Corporation
7
