EXHIBIT 7.5
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT (the "Agreement") dated as of July 22, 1997, among
Sanmina Corporation, a Delaware corporation ("Parent"), and the individual
identified on Schedule A attached hereto (the "Stockholder").
WHEREAS Sanmina Corporation, SANM Acquisition Subsidiary, Inc., a Delaware
corporation and a wholly owned subsidiary of Parent ("Sub"), and Elexsys
International, 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 (the
"Merger"), upon the terms and subject to the conditions set forth in the Merger
Agreement; and
WHEREAS the Stockholder owns of record the number of shares of common
stock, par value $1.00 per share, of the Company (the "Common Stock"), set forth
opposite his name on Schedule A attached hereto; and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that the Stockholder enter into this Agreement;
NOW, THEREFORE, to induce Parent to enter into, and in consideration of its
entering into, the Merger Agreement, and in consideration of the promises and
the representations, warranties and agreements contained herein, the parties
agree as follows:
1. Definition. For purposes of this Agreement, "Subject Shares" shall
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mean all issued and outstanding shares of Common Stock of the Company owned of
record or beneficially by the Stockholder as of the record date for persons
entitled (a) to receive notice of, and to vote at, a meeting of the stockholders
of the Company called for the purpose of voting on the matter referred to in
Section 4(a), or (b) to take action by written consent of the stockholders of
the Company with respect to the matter referred to in Section 4(a).
Notwithstanding anything to the contrary contained in this Agreement, the
"Subject Shares" shall not include, and the Stockholder shall not be deemed to
be the beneficial owner of, any shares of Common Stock of the Company that the
Stockholder may acquire upon the exercise of any stock option (unless such
option has been exercised and such shares have been issued to the Stockholder
and are held by the Stockholder as of such record date).
2. Representations and Warranties of the Stockholder. The Stockholder
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hereby represents and warrants to Parent as of the date hereof as follows:
(a) Authority. The Stockholder has all requisite capacity to enter
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into this Agreement and to consummate the transactions contemplated hereby.
This Agreement has been duly executed and delivered by the Stockholder and
constitutes a valid and binding obligation of the
Stockholder enforceable against the Stockholder in accordance with its terms.
Except for informational filings with the SEC, the execution and delivery of
this Agreement by the Stockholder do not, and the consummation by the
Stockholder of the transactions contemplated hereby and compliance by the
Stockholder with the terms hereof will not, (i) conflict with, or result in any
violation of, or default (with or without notice or lapse of time or both) under
any trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, judgment, order, notice, decree, statute,
law, ordinance, rule or regulation applicable to the Stockholder or to the
Stockholder's property or assets, (ii) require any filing by the Stockholder on
or before the Closing Date with, or require the Stockholder to obtain on or
before the Closing Date, any permit, authorization, consent or approval of, any
Federal, state or local government or any court, tribunal, administrative agency
or commission or other governmental or regulatory authority or agency, domestic
or foreign, or (iii) violate any order, writ, injunction, decree, statute, rule
or regulation applicable to the Stockholder or the Subject Shares.
(b) The Shares. The Stockholder is the record and beneficial owner
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of, and has good and valid title to, the shares of Common Stock set forth
opposite his name on Schedule A attached hereto, free and clear of any Liens
whatsoever. The Stockholder does not own, of record or beneficially, any shares
of capital stock of the Company other than the shares of Common Stock set forth
opposite his name on Schedule A attached hereto. The Stockholder has the sole
right to vote such shares, and none of such shares is subject to any voting
trust or other agreement, arrangement or restriction with respect to the voting
of such shares, except as contemplated by this Agreement.
3. Representations and Warranties of Parent. Parent hereby represents
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and warrants to the Stockholder that Parent has all requisite corporate power
and authority to enter into this Agreement and to consummate the transactions
contemplated hereby. This Agreement has been duly authorized, executed and
delivered by Parent and constitutes a valid and binding obligation of Parent
enforceable against Parent in accordance with its terms. Except for
informational filings with the SEC, the execution and delivery 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, the certificate of incorporation or bylaws of Parent, or any
trust agreement, loan or credit agreement, note, bond, mortgage, indenture,
lease or other agreement, instrument, permit, concession, franchise, license,
judgment, order, notice, decree, statute, law, ordinance, rule or regulation
applicable to Parent or to Parent's property or assets.
4. Covenants of the Stockholder. Until the termination of this Agreement
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in accordance with Section 11, the Stockholder agrees as follows:
(a) Subject to Section 5, at any meeting of stockholders of the
Company called to vote upon the Merger and the Merger Agreement or at any
adjournment thereof or in any other circumstances upon which a vote, consent or
other approval (including by written consent) with respect to the Merger and the
Merger Agreement is sought from the Company's stockholders in their capacities
as such, the Stockholder shall, including by executing a written consent if
requested by
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Parent, vote (or cause to be voted) the Subject Shares in favor of the Merger,
and the adoption and approval by the Company of the Merger Agreement.
(b) The Stockholder shall not (i) sell, transfer, pledge, assign or
otherwise dispose of (including by gift) (collectively, "Transfer"), consent to
any Transfer of, or enter into any contract, option or other arrangement
(including any profit sharing arrangement) with respect to the Transfer of, any
or all of the Subject Shares (or any interest therein) to any person other than
pursuant to the terms of the Merger or (ii) enter into any voting arrangement,
whether by proxy, voting agreement or otherwise, in connection with, directly or
indirectly, any Takeover Proposal, and agrees not to commit or agree to take any
of the foregoing actions; provided, however, that notwithstanding anything to
the contrary contained in this Agreement, the Stockholder may, without the
consent of Parent or any other person, transfer any or all of the Subject Shares
(or any interest therein) to one or more members of the Stockholder's family,
any trust for the benefit of the Stockholder or one or more members of the
Stockholder's family or any entity controlled by the Stockholder so long as the
transferee of such Subject Shares (or such interest therein) agrees to be bound
by the applicable provisions of this Agreement.
(c) The Stockholder shall not, nor shall he instruct any agent or any
investment banker, attorney or other adviser or representative of the
Stockholder to, directly or indirectly, (i) solicit, initiate or knowingly
encourage the submission to the Company of, any Takeover Proposal or (ii)
participate in any discussions or negotiations with any person (other than
Parent and its affiliates, agents and representatives) regarding, or furnish to
any such person any non-public information with respect to, or take any other
action intended to facilitate the making of any inquiry or proposal that
constitutes, or may reasonably be expected to lead to, any Takeover Proposal.
(d) If, at the time the Merger Agreement is submitted for approval to
the stockholders of the Company, the Stockholder is an "affiliate" of the
Company for purposes of Rule 145 under the Securities Act or for purposes of
qualifying the Merger for pooling of interests accounting treatment under
Opinion 16 of the Accounting Principles Board and applicable SEC rules and
regulations, the Stockholder shall deliver to Parent on or prior to the Closing
Date a written agreement substantially in the form attached as Exhibit A to the
Merger Agreement.
5. Grant of Irrevocable Proxy; Appointment of Proxy.
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(a) Until the termination of this Agreement in accordance with Section
11, the Stockholder hereby irrevocably grants to, and appoints, Parent and Jure
Sola and Xxxxx X. Xxxx, in their respective capacities as officers of Parent,
and any individual who shall hereafter succeed to any such office of Parent, and
each of them individually, 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 favor of approval of the Merger and the
adoption and approval of the Merger Agreement.
(b) The Stockholder represents that any proxies heretofore given in
respect of the
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Subject Shares are not irrevocable, and that all such proxies are hereby
revoked.
(c) The Stockholder hereby affirms that the irrevocable proxy set
forth in this Section 5 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 proxies and attorneys in fact 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 Delaware
General Corporation Law.
6. Further Assurances. The Stockholder will, from time to time, execute
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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.
7. Certain Events. The Stockholder agrees that this Agreement and the
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obligations hereunder shall attach to the Subject Shares and shall be binding
upon any person or entity to which legal or beneficial ownership of such Subject
Shares shall pass, whether by operation of law or otherwise, including such
Stockholder's heirs, guardians, administrators or successors. In the event of
any stock split, stock dividend, merger, reorganization, recapitalization or
other change in the capital structure of the Company affecting the Company's
Common Stock, or the acquisition of additional shares of Common Stock or other
voting securities of the Company by the Stockholder, the number of Subject
Shares shall be adjusted appropriately and this Agreement and the obligations
hereunder shall attach to any additional shares of Common Stock or other voting
securities of the Company issued to or acquired by the Stockholder.
8. Registration Rights. If the Stockholder determines in good faith
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after consultation with the Stockholder's counsel that any shares of common
stock of Parent received by the Stockholder in connection with the Merger
("Merger Shares") may be deemed to be "restricted securities" under Rule 144
promulgated under the Securities Act of 1933, as amended (the "Securities Act"),
or are otherwise subject to any restriction on resale (other than restrictions
imposed by Rule 145 promulgated under the Securities Act or restrictions imposed
by Accounting Series Release 135), then, as soon as practicable after the
Effective Time (and in any event within 30 days after the Effective Time),
Parent, at its sole expense, shall (a) file a registration statement permitting
the resale of the Merger Shares, (b) take all actions reasonably necessary to
cause such registration statement to be declared effective, (c) maintain the
effectiveness and availability of such registration statement until the first
anniversary of the Effective Time, (d) use commercially reasonable efforts to
register or qualify the Merger Shares under the Blue Sky laws of such
jurisdictions as the Stockholder shall reasonably request, and maintain the
effectiveness of such registrations and qualifications for as long as such
registration statement remains effective, and (e) take such other actions as are
reasonably necessary to enable the Stockholder to sell the Merger Shares without
restriction. To the extent permitted by law, Parent shall indemnify and hold
harmless
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the Stockholder against and from any costs, expenses (including reasonable
attorneys' fees), settlement payments, claims, demands, judgments, fines,
penalties, losses, damages and liabilities that arise out of or are related to
any inaccuracy in, or omission with respect to, such registration statement.
9. Indemnification. Parent shall indemnify and hold harmless the
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Stockholder and the Stockholder's affiliates, agents, advisers and
representatives (the "Indemnified Parties") against and from any costs, expenses
(including reasonable attorneys' fees), settlement payments, claims, demands,
judgments, fines, penalties, losses, damages and liabilities incurred in
connection with any claim, suit, action or proceeding (whether asserted,
commenced or arising before or after the Effective Time) that arises directly or
indirectly from or relates directly or indirectly to (a) the execution, delivery
or performance of this Agreement, or (b) any of the transactions contemplated by
this Agreement. In the event any such claim, suit, action or proceeding is
asserted or commenced against any Indemnified Party, (i) Parent shall advance
and pay the reasonable fees and expenses of any counsel retained by such
Indemnified Party in connection with such claim, suit, action or proceeding
promptly after receipt of a request therefor from such Indemnified Party, and
(ii) Parent shall cooperate with such Indemnified Party and such Indemnified
Party's counsel in the defense of such claim, suit, action or proceeding.
Parent agrees to pay all expenses, including attorneys' fees, that may be
incurred by any of the Indemnified Parties in enforcing the indemnity and other
obligations provided for in this Section 9.
10. Assignment. Except as otherwise provided in Section 4(b), neither
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this Agreement nor any of the rights, interests or obligations hereunder shall
be assigned by the Stockholder, on the one hand, without the prior written
consent of Parent nor by Parent, on the other hand, without the prior written
consent of the Stockholder, except that Parent may assign, in its sole
discretion, any or all of its rights, interests and obligations hereunder (other
than Parent's obligations under Sections 8 and 9) to any direct or indirect
wholly owned subsidiary of Parent (provided that in the case of any assignment
by Parent to any such subsidiary of Parent, Parent shall remain jointly and
severally liable for the due and timely performance of any obligations so
assigned) . 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 representatives, executors, administrators, estate, heirs, successors
and assigns.
11. Termination. This Agreement (including the proxy referred to in
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Section 5) and all rights of Parent and all obligations of the Stockholder
hereunder, shall terminate upon the first to occur of (i) the Effective Time or
(ii) the date on which the Merger Agreement is terminated in accordance with its
terms; provided, however, that notwithstanding anything to the contrary
contained in this Agreement, the rights of the Stockholder and the obligations
of Parent pursuant to Sections 8 and 9, and the provisions contained in Sections
12, 13 and 15, shall survive any termination of this Agreement..
12. General Provisions.
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(a) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto.
(b) Notice. All notices and other communications hereunder shall be
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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 8.2 of the Merger Agreement and to the Stockholder at his address set
forth on Schedule A attached 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 a
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Section, 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) Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be deemed to be one and the same agreement, and
shall become effective when one or more of the counterparts have been signed by
each of the parties and delivered to the other party, it being understood that
each party need not sign the same counterpart.
(e) Entire Agreement; No Third-Party Beneficiaries. The Agreement
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(including the documents and instruments referred to herein) (i) constitutes the
entire agreement and supersedes all prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof
and (ii) is not intended to confer upon any person other than the parties hereto
(and the other persons referred to in Section 9) any rights or remedies
hereunder.
(f) Governing Law. This Agreement shall be governed by, and construed
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in accordance with, the laws of the State of Delaware regardless of the laws
that might otherwise govern under applicable principles of conflicts of law
thereof.
(g) No Limitations. Nothing in this Agreement shall, and nothing in
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this Agreement shall be deemed to, prevent the Stockholder from acting in
accordance with his fiduciary duties as a director of the Company or otherwise
limit the ability of the Stockholder to take any action in his capacity as a
director or officer of the Company.
(h) Voidability. If prior to the execution hereof, the Board of
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Directors of the Company shall not have duly and validly authorized and approved
by all necessary corporate action, the Merger Agreement and the transactions
contemplated thereby, so that by the execution and delivery hereof Parent or Sub
would become, or could reasonably be expected to become an "interested
stockholder" within the meaning of Section 203 of the DGCL, then this Agreement
shall be void and unenforceable until such time as such authorization and
approval shall have been duly and validly obtained.
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13. Enforcement. The parties agree that irreparable damage would occur in
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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 court of the United States
located in the State of Delaware or in a 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 (i) consents to submit such party to the
personal jurisdiction of any court of the United States located in the State of
Delaware or any Delaware state court in the event any dispute arises out of this
Agreement or any of the transactions contemplated hereby, (ii) agrees that such
party will not attempt to deny or defeat such personal jurisdiction by motion or
other request for leave from any such court, (iii) agrees that such party will
not bring any action relating to this Agreement or the transactions contemplated
hereby in any court other than a court of the United States located in the State
of Delaware or a Delaware state court and (iv) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any of the transactions contemplated hereby.
14. Public Announcement. Except to the extent required by law or
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regulation, the Stockholder shall not issue any press release or other public
statement with respect to the transactions contemplated by this Agreement and
the Merger Agreement without the prior written consent of Parent.
15. Severability. If any term or other provision of this Agreement is
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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. 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.
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IN WITNESS WHEREOF, Parent has caused this Agreement to be signed by its
officer thereunto duly authorized and the Stockholder has signed this Agreement,
all as of the date first written above.
Parent,
By: /s/ Xxxxx X. Xxxx
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Name: Xxxxx X. Xxxx
Title: President
/s/ Xxxxx Xxxxxxxx
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Xxxxx Xxxxxxxx
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SCHEDULE A
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NAME AND ADDRESS OF STOCKHOLDER NUMBER OF SHARES
OF COMMON STOCK
OWNED OF RECORD
Xxxxx Xxxxxxxx 4,072,961
Elexsys International, Inc.
0000 Xxxxxxx Xxxxx
Xxx Xxxx, XX 00000
