VOTING AGREEMENT
This
VOTING AGREEMENT (this “Agreement”) dated as of October 24, 2006, is entered
into among Microsemi Corporation, a Delaware corporation (the “Parent”), and the
undersigned shareholder (the “Shareholder”) of PowerDsine Ltd., an Israeli
company (the “Company”). Except as otherwise provided herein, capitalized terms
that are used but not otherwise defined herein shall have the meanings assigned
to them in the Merger Agreement (as defined below).
RECITALS
A. Contemporaneously
with the execution of this Agreement, the Company, the Parent and Pinnacle
Acquisition Corporation Ltd (“Merger Sub”) are entering into an Agreement and
Plan of Merger of even date herewith (the “Merger Agreement”), providing for,
among other things, the merger of Merger Sub with and into the Company, pursuant
to which Merger Sub will cease to exist and the Company will become a
wholly-owned subsidiary of the Parent (the “Merger”); and
B. As
a
condition to their willingness to enter into the Merger Agreement, the Parent
and Merger Sub have required that the Shareholder enter into this
Agreement.
AGREEMENT
NOW,
THEREFORE, in order to induce the Parent and Merger Sub to enter into the Merger
Agreement, the parties hereto, intending to be legally bound, agree as
follows:
1. Representations
of Shareholder.
The
Shareholder represents and warrants to the Parent that:
(a) As
of the
date hereof, the Shareholder lawfully owns beneficially (as such term is defined
in Rule 13d-3 of the 0000 Xxx) or of record each of the ordinary shares, par
value NIS 0.01 per share, of the Company (the “Company Shares”), set forth on
Schedule 1(a) (the “Shares”), free and clear of all Liens (other than as set
forth on Schedule 1(a) and proxies and other restrictions in favor of the Parent
and Merger Sub pursuant to this Agreement and except for such transfer
restrictions of general applicability as may be provided under securities laws,
including the 1933 Act and the “blue sky” laws of the various states of the
United States) and, except for this Agreement and as set forth on Schedule
1(a),
there are no options, warrants or other rights, agreements, arrangements or
commitments of any character to which the Shareholder is a party relating to
the
pledge, disposition or Voting (as defined below) of any shares of capital stock
of the Company and there are no Voting trusts or Voting agreements with respect
to such Shares;
(b) as
of the
date hereof, other than as set forth on Schedule 1(a), the Shareholder does
not
beneficially own (as such term is used in Rule 13d-3 of the 1934 Act, but
ignoring the 60-day limitation set forth therein) any Company Shares other
than
the Shares and does not have any options, warrants or other rights to acquire
any additional shares of capital stock of the Company or any security
exercisable for or convertible or exchangeable into shares of capital stock
of
the Company;
(c) the
Shareholder has full power and authority and has taken all actions necessary
to
enter into, execute and deliver this Agreement and to perform fully the
Shareholder’s obligations hereunder;
(d) this
Agreement has been duly executed and delivered by the Shareholder and
constitutes the legal, valid and binding obligation of the Shareholder
enforceable against the Shareholder in accordance with its terms, subject,
as to
enforcement, to applicable bankruptcy, insolvency, reorganization, fraudulent
conveyance and similar laws relating to creditors’ rights and to general
principles of equity;
(e) assuming
that all consents contemplated by the Merger Agreement have been obtained,
other
than filings under the 1934 Act and other than such as, if not made, obtained
or
given, would not reasonably be expected to prevent or materially delay the
performance by Shareholder of any of its obligations under this Agreement,
no
notices, reports or other filings are required to be made by the Shareholder
with, nor are any consents, registrations, approvals, permits or authorizations
required to be obtained by the Shareholder from, any Governmental Authority
or
any other Person or entity, in connection with the execution and delivery of
this Agreement by the Shareholder; and
(f) the
execution, delivery and performance of this Agreement by the Shareholder does
not, and the consummation by the Shareholder of the transactions contemplated
hereby will not, result in a violation or breach of, or constitute (with or
without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation, modification or acceleration) (whether
after
the giving of or the passage of time of both) under any contract, agreement,
arrangement or commitment to which the Shareholder is a party or which is
binding on it, him or her or its, his or her assets and will not result in
the
creation of any Lien on any of the assets or properties of the Shareholder
(other than the Shares), except for such violations, breaches, defaults,
terminations, cancellations, modifications, accelerations or Liens as would
not
reasonably be expected to prevent or materially delay the performance by
Shareholder of any of its obligations under this Agreement.
2. Voting.
From
the date hereof until any termination of this Agreement in accordance with
its
terms, Shareholder hereby agrees that at any meeting of the shareholders of
the
Company, however called, and in any written action by consent of shareholders
of
the Company, Shareholder shall cause to be counted as present thereat for
purposes of establishing a quorum and shall Vote, or cause to be Voted, any
and
all of the Shares (or, with respect to New Shares (as defined in Section 3),
owned hereafter) as follows:
(a) FOR
the
adoption and approval of the Merger Agreement and the transactions contemplated
thereby (the “Transactions”), including the Merger;
(b) AGAINST
any action or agreement that would compete with, or materially impede, or
interfere with or that would reasonably be expected to discourage the
Transactions; or inhibit the timely consummation of the Transactions,
and
(c) except
for the Merger, AGAINST any Acquisition Proposal, or merger, consolidation,
business combination, reorganization, recapitalization, liquidation or sale
or
transfer of any material assets of the Company or its Subsidiaries not permitted
pursuant to Section 6.01 of the Merger Agreement.
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For
purposes of this Agreement, “Vote” includes voting in person or by proxy in
favor of or against any action, otherwise consenting or withholding consent
in
respect of any action. “Voting” shall have a correlative meaning.
3. Proxy.
In
furtherance of the Shareholder’s agreement in Section 2 above, the Shareholder
hereby appoints __________ and ___________ and each of them as his, her or
its
proxies, with power of substitution and resubstitution, to Vote all of the
Shares and all Company Shares which the Shareholder purchases or otherwise
of
which the Shareholder acquires beneficial ownership (as such term is used in
Rule 13d-3 of the 1934 Act, but ignoring the 60-day limitation set forth
therein, and excluding any Company Shares that may be deemed to be beneficially
owned by the Shareholder as a result of the grant to the Shareholder of proxies
in connection with the Company Shareholder Meeting) after the execution of
this
Agreement (“New Shares”) in the manner described by Section 2 above.
This
proxy (this “Proxy”) applies to any Vote (i) at any meeting of the shareholders
of the Company, and any adjournment or postponement thereof, at which the
matters described above are considered, including the Company Shareholder
Meeting, and (ii) in connection with any written consent of the shareholders
of
the Company. THIS
PROXY IS COUPLED WITH AN INTEREST, IS GRANTED TO SECURE THE RIGHTS OF PARENT
AND
MERGER SUB, REVOKES ALL PRIOR PROXIES GRANTED BY THE SHAREHOLDER AND IS
IRREVOCABLE
(to the
fullest extent permitted by Israeli law and the Company Charter Documents)
until
such time as this Agreement terminates in accordance with its terms, at which
time this Proxy shall expire.
4. No
Voting Trusts.
From
the date hereof until any termination of this Agreement in accordance with
its
terms, the Shareholder will not, nor will the Shareholder permit any entity
under the Shareholder’s control to, deposit any of the Shares or New Shares in a
Voting trust or subject any of the Shares or New Shares to any arrangement
with
respect to the Voting of such Shares or New Shares other than agreements entered
into with the Parent.
5. No
Proxy Solicitations.
Except
in connection with activities permitted under Section 6.03(b) of the Merger
Agreement, from the date hereof until any termination of this Agreement in
accordance with its terms, the Shareholder will not, nor will the Shareholder
permit any entity under the Shareholder’s control, to:
(a) solicit,
initiate, or take an action intended to encourage or induce the making,
submission or announcement of any Acquisition Proposal;
(b) take
an
action intended to, directly or indirectly, encourage, or initiate or cooperate
in, a shareholders’ Vote or action by consent of the Company’s shareholders in
opposition to or in competition with the consummation of the Transactions,
including the Merger; or
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(c) become
a
member of a “group” (as such term is used in Section 13(d) of the 0000 Xxx) with
respect to any voting securities of the Company for the purpose of opposing
or
competing with the consummation of the Transactions, including the
Merger.
6. Transfer
and Encumbrance.
On or
after the date hereof and during the term of this Agreement, the Shareholder
agrees not to (a) directly or indirectly, sell, offer, contract or grant any
option to sell (including without limitation any short sale), pledge, transfer,
or otherwise dispose of any of the Shares or the New Shares, or (b) publicly
announce an intention to do any of the foregoing.
7. Shareholder
Capacity.
To the
extent that the Shareholder is an officer or director of the Company, nothing
in
this Agreement shall be construed as preventing or otherwise affecting any
actions taken by the Shareholder in his or her capacity as an officer or
director of the Company or any of its Subsidiaries or from fulfilling the
obligations of such office (including the performance of obligations required
by
the fiduciary duties of the Shareholder acting solely in his or her capacity
as
an officer or director) , including, without limitation, participating in any
such capacity in any discussions or negotiations in accordance with Section
6.03
of the Merger Agreement.
8. Specific
Performance.
The
parties acknowledge that there may be no adequate remedy at law for a breach
of
this Agreement and that money damages may not be an appropriate remedy for
breach of this Agreement. Therefore, the parties agree that each party has
the
right to seek injunctive relief and specific performance of this Agreement
in
the event of any breach hereof in addition to any rights it may have for
damages. The remedies set forth in this Section 8 are cumulative and shall
in no
way limit any other remedy any party hereto has at law, in equity or pursuant
hereto.
9. Entire
Agreement; Amendment; Waiver.
This
Agreement (including the schedule hereto) contains the entire agreement between
the parties hereto with respect to the subject matter hereof and thereof and
supersedes all prior agreements and understandings, oral or written, with
respect to such matters. 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 the parties, or in the case of a waiver, by the
party against whom the waiver is to be effective. 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.
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10. Notices.
All
notices, claims, demands and other communications hereunder shall be in writing
and shall be deemed given when delivered personally or by internationally
recognized overnight courier (providing proof of delivery), or sent via telecopy
(receipt confirmed) to the parties at the following addresses or telecopy
numbers (or at such other address or telecopy numbers for a party as shall
be
specified by like notice):
To
the
Parent:
Microsemi
Corporation
0000
Xxxxx Xxxxxx
Xxxxxx,
Xxxxxxxxxx 00000
Telecopy
No.: x0-000-000-0000
Attention:
Xxxxx
Xxxxxxxxxx
with
a
copy (which shall constitute notice) to :
O’Melveny
& Xxxxx LLP
0000
Xxxx
Xxxx Xxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
XXX
Telecopy
No.: x0 000.000.0000
Attention:
Xxxxxx
Xxxxxxx
Xxxxx
X.
Xxxxxxxx
and:
Xxxxx
Xxxxx & Xx.
00
Xxxxxx
Xxxxxx
Xxxxxxxxx
00000
Israel
Telecopy
No.: x000.0.000.0000
Attention:
Xxxxx Xxxxxxxxx, Adv.
If
to the
Shareholder, to the address or facsimile number set forth for the Shareholder
on
the signature page hereof:
with
a
copy to :
Xxxx,
Weiss, Rifkind, Xxxxxxx & Xxxxxxxx LLP
0000
Xxxxxx xx xxx Xxxxxxxx
Xxx
Xxxx,
Xxx Xxxx 00000
Telecopy
No.: x0.000.000.0000
Attention:
Xxxxxxx X. Xxxx
and:
Xxxxx
Xxxx & Xxxxxxxx
0000
Xx
Xxxxxx Xxxx
Xxxxx
Xxxx, Xxxxxxxxxx 00000
Telecopy
No.: x0 000.000.0000
Attention: Xxxx
X.
Xxxxxxxxx
5
and:
Gross,
Kleinherdler, Hodak, Halevy, Xxxxxxxxx & Co.
1
Azrieli
Center
Xxx
Xxxx
00000
Xxxxxx
Telecopy
No.: x000.0.000.0000
Attention:
Xxxx Xxxxxx, Adv.
11. Miscellaneous.
(a) 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 OTHER CHOICE OF LAW OR
CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF DELAWARE OR
OTHERWISE) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION,
OTHER THAN THE STATE OF DELAWARE.
(b) Venue;
Waiver of Jury Trial.
In
addition, each of the parties (a) consents to submit itself to the personal
jurisdiction of any Federal court (and if such Federal court finds that it
can
not exercise jurisdiction any Delaware state court) sitting in Newcastle County
in the State of Delaware and higher courts sitting in other locations with
jurisdiction with respect to any appeals from such courts, if any dispute arises
out of this Agreement, (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, including (i) any claim that it is not personally subject to the
jurisdiction of the above-named courts for any reason other than the failure
to
lawfully serve process, (ii) 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),
(iii) to the fullest extent permitted by applicable law, that (1) the suit,
action or proceeding in any such court is brought in an inconvenient forum,
(2)
the venue of such suit, action or proceeding is improper and (iii) this
Agreement, or the subject matter hereof, may not be enforced in or by such
courts and (c) agrees that it will not bring any action relating to this
Agreement in any court other than a Federal court (or if such Federal court
finds that it can not exercise jurisdiction) such Delaware state court sitting
in Newcastle County in the State of Delaware. EACH OF THE PARENT AND THE
SHAREHOLDER IRREVOCABLY AND UNCONDITIONALLY WAIVE ANY RIGHT IT MAY HAVE 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, THE NEGOTIATION
OR ENFORCEMENT HEREOF. Each party to this Agreement hereby agrees that in
connection with any such action process may be served in the same manner as
notices may be delivered under Section 11 and irrevocably waives any defenses
or
objections it may have to service in such manner
(c) Severability.
If any
term or other provision of this Agreement or the application hereof 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. If the final judgment of a court of competent
jurisdiction or other authority declares that any term or provision hereof
is
invalid, void or unenforceable, the parties agree that the court making such
determination shall have the power to and shall, subject to the discretion
of
such court, reduce the scope, duration, area or applicability of the term or
provision, to delete specific words or phrases, or to replace any invalid,
void
or unenforceable term or provision with a term or provision that is valid and
enforceable and that comes closest to expressing the intention of the invalid
or
unenforceable term or provision.
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(d) 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 or delegated by either of the parties without prior written
consent of the other.
(e) Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered (whether delivered by telecopy or otherwise) one and the same
agreement and shall become effective when one or more counterparts have been
signed by each of the parties and delivered to the other parties, it being
understood and agreed that all parties need not sign the same
counterpart.
(f) Termination.
This
Agreement shall terminate upon the earliest to occur of (i) the Closing and
(ii)
the termination of the Merger Agreement in accordance with its terms;
provided,
however,
that
termination of this Agreement shall not relieve any party from breach of its
obligations hereunder prior to such termination.
(g) Further
Assurances.
Each
party hereto shall execute and deliver such additional instruments and other
documents and shall take such further actions as may be reasonably necessary
or
desirable to effectuate, carry out and comply with all of the terms of this
Agreement and the transactions contemplated hereby.
(h) Headings.
The
heading references herein hereof are for convenience purposes only, and shall
not be deemed to limit or affect any of the provisions hereof.
(i) THIRD
PARTY BENEFICIARIES.
NOTHING
IN THIS AGREEMENT, EXPRESS OR IMPLIED, IS INTENDED TO CONFER UPON ANY PERSON
OTHER THAN THE PARENT, THE SHAREHOLDER AND THEIR RESPECTIVE SUCCESSORS AND
ASSIGNS, ANY RIGHTS OR REMEDIES UNDER OR BY REASON OF THIS
AGREEMENT.
(j) Rules
of Construction.
The parties hereto agree that they have been represented by counsel during
the
negotiation and execution of this Agreement and, therefore, waive the
application of any law, regulation, holding or rule of construction providing
that ambiguities in an agreement or other document will be construed against
the
party drafting such agreement or document.
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The
parties hereto have executed and delivered this Agreement as of the date first
written above.
MICROSEMI
CORPORATION
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By: | ||
Name:
Title:
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[SHAREHOLDER]
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By: | ||
Name:
Address:
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Facsimile:
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Schedule
1(a)
Shareholder:
Shares
Held of Record:
Shares
Beneficially Owned:
Options
and Other Rights:
Liens:
1(a)