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EXHIBIT 2.3
VOTING AGREEMENT
VOTING AGREEMENT made this ___ day of August, 1999 (the "AGREEMENT"), among
the Stockholder (as defined below) of Aavid Thermal Technologies, Inc., a
Delaware corporation (the "COMPANY"), Heat Holdings Corp., a Delaware
corporation ("PURCHASER"), and Heat Merger Corp., a Delaware corporation and a
wholly-owned subsidiary of Purchaser ("MERGERCO").
The term "STOCKHOLDER", as used herein, shall mean each of the Persons set
forth on the signature pages hereof as Owners, and each reference to the
Stockholder is intended to encompass each of such Persons. The term "SHARES", as
used in this Agreement, shall mean any and all shares of capital stock of the
Company which are entitled to vote in any election of the board of directors of
the Company now owned and/or subsequently acquired by the Stockholder through
purchase, gift, stock splits, stock dividends and the exercise of stock options.
R E C I T A L S
Concurrently with the execution of this Agreement, Purchaser, MergerCo and
the Company have entered into an Agreement and Plan of Merger dated as of the
date of this Agreement (the "MERGER AGREEMENT") pursuant to which MergerCo will
merge with and into the Company (the "MERGER"). The transactions contemplated by
the Merger Agreement are collectively referred to as the "TRANSACTIONS."
In order to induce Purchaser and MergerCo to enter into the Merger
Agreement with the Company, Purchaser and MergerCo have requested, and the
Stockholder has agreed, that the Stockholder enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and for other good and
valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
ARTICLE 1
VOTING AGREEMENT
The Stockholder hereby agrees with Purchaser and MergerCo as follows:
SECTION 1.1. Voting of Shares. (a) At any meeting of the stockholders of
the Company, however called, at every adjournment of any such meeting, and in
connection with any written consent of the stockholders of the Company, the
Stockholder will cause all of his Shares to be voted, during the term of this
Agreement, (A) in favor of (i) the Merger and the approval and adoption of the
Merger Agreement, and (ii) all other Transactions as to which stockholders of
the Company are called upon to vote, and (B) against any proposal submitted to
the Company's stockholders which could result in or would reasonably be expected
to lead to (i) any acquisition or purchase of 30% or more of the consolidated
assets of the Company and its Subsidiaries or of over 30% of any class of equity
securities of the Company or any of its Subsidiaries, (ii) any tender offer
(including a self tender offer) or exchange offer that if consummated would
result in any party other than Purchaser or MergerCo beneficially owning 30% or
more of any class of equity securities of the Company or any of its
Subsidiaries, (iii) any
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merger, consolidation, business combination, sale of substantially all assets,
recapitalization, liquidation, dissolution or similar transaction involving the
Company or any of its Subsidiaries whose assets, individually or in the
aggregate, constitute more than 30% of the consolidated assets of the Company
other than the Transactions, or (iv) any other transaction the consummation of
which would reasonably be expected to interfere with in a material way, prevent
or materially delay the Merger or which would reasonably be expected to
materially dilute the benefits to Purchaser of the Transactions, (each of the
matters referred to in clause (B) above, an "ACQUISITION PROPOSAL").
For purposes of this Agreement, (i) "CONTROL" and correlative terms shall
have the meanings ascribed to them in Rule 405 under the Securities Act of 1933;
(ii) "PERSON" shall mean an individual, partnership, limited liability company,
corporation, joint stock company, trust, estate, joint venture, association or
unincorporated organization, or any other entity or organization, including a
government or political subdivision or any agency or instrumentality thereof,
and (iii) "SUBSIDIARY" shall mean any corporation or other entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar functions
are directly or indirectly owned by a Person.
(b) The Stockholder agrees that during the term of this Agreement, the
Stockholder shall attend or otherwise participate in all duly called stockholder
meetings and any adjournments of such meetings and in all actions by written
consent of stockholders.
SECTION 1.2. No Proxies or Encumbrances. Other than as provided in this
Agreement, the Stockholder, until the termination of this Agreement, shall not
(i) grant any proxies or enter into any voting trust or other agreement or
arrangement with respect to the voting of any of the Shares (other than proxies
to vote in the manner set forth in Section 1.1), (ii) sell, assign, transfer,
encumber or otherwise dispose of or enter into any contract, option or other
arrangement or understanding with respect to, the direct or indirect sale,
assignment, transfer, encumbrance or other disposition of any of its Shares or
any interest therein except for Permitted Transfers to Permitted Transferees (as
such terms are defined below) or (iii) seek or solicit any of the foregoing. The
Stockholder shall notify Purchaser and MergerCo promptly and provide all details
requested by Purchaser and MergerCo if the Stockholder shall be approached or
solicited, directly or indirectly, by any Person with respect to any of the
foregoing.
For purposes of this Agreement, (i) "PERMITTED TRANSFEREE" means, with
respect to any particular Owner any Person controlled, directly or indirectly,
by the Stockholder and (ii) each transfer to a Permitted Transferee shall
constitute a "PERMITTED TRANSFER" only if it is a:
(i) transfer to a Permitted Transferee of such Owner and, in the case
of a Permitted Transferee, transfer to the Owner who transferred such
securities to the Permitted Transferee or to other Permitted Transferees of
such Owner; provided that, any such Permitted Transferee shall enter into a
supplement to this Agreement, consented to in writing by Purchaser and
MergerCo, agreeing to be bound by the terms of this Agreement; or
(ii) pledge to a bank or securities firm of such Owner's Shares
securing a bona fide loan; provided that the pledge agreement with the
pledgee shall provide that the transferring Owner shall continue at all
times to have the right, from time to time, to vote and to give consents,
ratifications and waivers with respect to such pledged Shares; and provided
further that any pledge agreement that any Owner enters into shall provide
that the pledgee shall give written
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notice to Purchaser and MergerCo at least 10 days prior to the date such
pledgee takes any action to exercise any remedies with respect to such
Shares;
provided that no such transfer is in violation of applicable federal or state
securities laws.
SECTION 1.3. No Solicitation. The Stockholder shall not, during the term of
this Agreement, directly or indirectly solicit, initiate or encourage (or
authorize any person to solicit, initiate or encourage) any Acquisition
Proposal.
ARTICLE 2
REPRESENTATIONS AND WARRANTIES
The Stockholder represents and warrants to Purchaser and MergerCo as
follows:
SECTION 2.1. Valid Title. The Stockholder is the true and lawful owner of
100% of the Shares set forth next on the Shares Schedule to this Agreement, with
full power to vote and dispose of such Shares, and there are no restrictions on
the Stockholder's voting rights or rights of disposition pertaining to such
Shares except as set forth in this Agreement, pursuant to bona fide pledge
agreements to secure loans to such Stockholder, or imposed by federal and state
securities law. None of the Shares is subject to any voting trust or other
agreement or arrangement with respect to the voting of such shares.
SECTION 2.2. Non-Contravention. The execution, delivery and performance by
the Stockholder of this Agreement and the consummation of the transactions
contemplated hereby, do not and will not contravene or constitute a default
under or give rise to a right of termination, cancellation or acceleration of
any material right or obligation of the Stockholder or to a loss of any material
benefit of the Stockholder under any provision of applicable law or regulation
or of any agreement, judgment, injunction, order, decree or other instrument
binding on the Stockholder.
SECTION 2.3. Authorization. The execution, delivery and performance by the
Stockholder of this Agreement and the consummation by the Stockholder of the
Transactions are within the Stockholder's powers and have been duly authorized
by all necessary actions.
SECTION 2.4. Binding Effect. This Agreement constitutes a valid and binding
agreement of the Stockholder, enforceable against the Stockholder in accordance
with its terms, except as enforcement may be limited by bankruptcy, insolvency,
moratorium or other similar laws relating to creditors' rights generally. If the
Stockholder is married and the Shares set forth on the signature pages hereto
next to the Stockholder's name constitute community property under applicable
laws, this Agreement has been duly authorized, executed and delivered by, and
constitutes the valid and binding agreement of, the Stockholder's spouse,
enforceable in accordance with its terms, except as enforcement may be limited
by bankruptcy, insolvency, moratorium or other similar laws relating to
creditors' rights generally. If this Agreement is being executed in a
representative or fiduciary capacity, the person signing this Agreement has full
power and authority to enter into and perform this Agreement and has obtained
any necessary consents in connection with execution of this Agreement.
SECTION 2.5. No Other Shares. The number of Shares set forth on the Shares
Schedule next to the name of the Stockholder are the only Shares owned by the
Stockholder. Except as set forth on the
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Shares Schedule, the Stockholder owns no options to purchase or rights to
subscribe for or otherwise acquire any securities of the Company and has or have
no other interest in or voting rights with respect to any securities of the
Company (other than the Shares set forth on the signature pages hereof).
SECTION 2.6. Finder's Fees. No investment banker, broker, finder or other
intermediary has been retained by or is authorized to act on behalf of the
Stockholder who is or may be entitled to a commission or fee from Purchaser,
MergerCo or the Company in respect of this Agreement based upon any arrangement
or agreement made by or on behalf of the Stockholder.
ARTICLE 3
MISCELLANEOUS
SECTION 3.1. Notices. All notices, requests and other communications to any
party hereunder shall be deemed to have been duly given when delivered in
person, by telegram, facsimile or by registered or certified mail (postage
prepaid, return receipt requested) to such party at its address set forth on the
signature pages hereto.
SECTION 3.2. Amendments; No Waivers. (a) Any provision of this Agreement
may be amended or waived if, and only if, such amendment or waiver is in writing
and signed, in the case of an amendment, by each of the parties hereto, or in
the case of a waiver, by the party against whom the waiver is to be effective.
(b) No failure or delay by any party in exercising any right, power or
privilege hereunder shall operate as a waiver thereof nor shall any single or
partial exercise thereof preclude any other or further exercise thereof or the
exercise of any other right, power or privilege. The rights and remedies herein
provided shall be cumulative and not exclusive of any rights or remedies
provided by law.
SECTION 3.3. Termination. This Agreement shall automatically terminate upon
termination of the Merger Agreement in accordance with its terms.
SECTION 3.4. Severability. If any provision of this Agreement or the
application of such provision to any party or set of circumstances shall, in any
jurisdiction and to any extent, be finally held invalid or unenforceable, such
term or provision shall only be ineffective as to such jurisdiction, and only to
the extent of such invalidity or unenforceability, without invalidating or
rendering unenforceable any other terms or provisions of this Agreement or under
any other circumstances, and the parties shall negotiate in good faith a
substitute provision which comes as close as possible to the invalidated or
unenforceable term or provision, and which puts each party in a position as
nearly comparable as possible to the position it would have been in but for the
finding of invalidity or unenforceability, while remaining valid and
enforceable.
SECTION 3.5. Entire Agreement. This Agreement constitutes the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersedes all prior agreements and undertakings, both written and oral, among
the parties with respect to the subject matter hereof.
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SECTION 3.6. Successors and Assigns. The provisions of this Agreement shall
be binding upon and inure to the benefit of the parties hereto and their
respective successors and assigns (and, in the case of the Stockholder, the
heirs and executors of the Stockholder); provided that, except as permitted by
Section 1.2 or by will or intestacy, no party may assign, delegate or otherwise
transfer all or any of its rights or obligations under this Agreement without
the consent of the other parties hereto.
SECTION 3.7. Counterparts; Effectiveness. This Agreement may be signed in
any number of counterparts, each of which shall be an original, with the same
effect as if the signatures thereto and hereto were upon the same instrument.
This Agreement shall become effective when each party shall have received
counterparts (or signature pages) hereof signed by all of the other parties.
SECTION 3.8. Governing Law; Jurisdiction; Specific Performance. (a)
Governing Law. The terms of this Agreement shall be construed in accordance with
and governed by the law of the State of Delaware (without regard to principles
of conflict of laws).
(b) Jurisdiction; Specific Performance. (i) Each of the parties hereto
agrees that any suit, action or proceeding seeking to enforce any provision of,
or based on any matter arising out of or in connection with, this Agreement or
the transactions contemplated hereby may be brought against any of the parties
in any state or federal court in the State of Delaware, and each of the parties
hereby consents to the exclusive jurisdiction of such courts (and of the
appropriate appellate courts) in any such suit, action, or proceeding and waives
any objection to venue laid therein. Process in any suit, action or proceeding
may be served on any party anywhere in the world, whether within or without the
State Delaware. Without limiting the foregoing, each of the parties hereto
agrees that service of process upon such party at the address referred to in
Section 3.1, together with written notice of such service to such party, shall
be deemed effective service of process upon such party, and (ii) each of the
parties acknowledges and agrees that the parties' respective remedies at law for
a breach or threatened breach of any of the provisions of this Agreement would
be inadequate and, in recognition of that fact, each agrees that, in the event
of a breach or threatened breach by any party of the provisions of this
Agreement, in addition to any remedies at law, each party, without posting any
bond, shall be entitled to obtain equitable relief in the form of specific
performance, a temporary restraining order, a temporary or permanent injunction
or any other equitable remedy which may then be available.
(c) Waiver of Jury Trial. Each of the parties irrevocably waives all
right to trial by jury in any action, proceeding or counterclaim (whether based
on contract, tort or otherwise) arising out of or relating to this Agreement or
the actions of any of them in the negotiation, administration, performance and
enforcement thereof.
SECTION 3.9. Expenses. All costs and expenses incurred in connection with
this Agreement shall be paid by the party incurring such cost or expense.
SECTION 3.10. Certain Events. The Stockholder agrees that this Agreement
and the obligations hereunder shall attach to its Shares and shall be binding
upon any person to which legal or beneficial ownership of such shares shall
pass, whether by operation of law or otherwise.
SECTION 3.11. No Revocation. The voting agreements contained herein are
coupled with an interest and may not be revoked prior to termination of this
Agreement in accordance with Section 3.3, except by written consent of Purchaser
and MergerCo.
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SECTION 3.12. Stockholder Capacity. No person executing this Agreement who
is or becomes an officer or director of the Company makes any agreement or
understanding herein in his capacity as an officer or director. The Stockholder
signs solely in his capacity as the record holder and beneficial owner of such
Stockholder's Shares and nothing in this Agreement shall limit or affect any
actions taken by the Stockholder in his capacity as an officer or director of
the Company.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement, or
caused this Agreement to be duly executed by their respective authorized
officers or representatives, as of the day and year first above written.
AAVID THERMAL TECHNOLOGIES, INC.
By:
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Name:
Title:
HEAT MERGER CORP.
By:
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Name:
Title:
HEAT HOLDINGS CORP.
By:
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Name:
Title:
OWNERS:
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SHARES SCHEDULE
Owners: NUMBER OF SHARES NUMBER OF OPTIONS
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