Contract
Exhibit
99-1
EXECUTION
COPY
VOTING
AGREEMENT dated as of October 28, 2006, among Xxxxxxxxx Electric SA, a company
organized under the laws of France (“Parent”),
and
the individuals and other parties listed on Schedule A hereto (each, a
“Shareholder”
and,
collectively, the “Shareholders”).
WHEREAS
Parent, Trianon Inc., a Massachusetts corporation, and American Power Conversion
Corporation, a Massachusetts 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);
WHEREAS
each Shareholder owns the number of shares of Company Common Stock set forth
opposite such Shareholder’s name on Schedule A hereto (such shares of
Company Common Stock, together with any other shares of capital stock of
the
Company acquired by such Shareholder after the date hereof and during the
term
of this Agreement, being collectively referred to herein as the “Subject
Shares”
of
such
Shareholder); and
WHEREAS,
as a condition to its willingness to enter into the Merger Agreement, Parent
has
requested that each Shareholder enter into this Agreement.
NOW,
THEREFORE, the parties hereto agree as follows:
SECTION
1. Representations
and Warranties of Each Shareholder.
Each
Shareholder hereby, severally and not jointly, represents and warrants to Parent
as of the date hereof in respect of such Shareholder as follows:
(a) Authority;
Execution and Delivery; Enforceability.
Such
Shareholder has all requisite power and authority to execute and deliver this
Agreement and to consummate the transactions contemplated hereby. The execution
and delivery by such Shareholder of this Agreement and consummation of the
transactions contemplated hereby have been duly authorized by all necessary
action on the part of such Shareholder. Such Shareholder has duly executed
and
delivered this Agreement, and this Agreement constitutes the legal, valid and
binding obligation of such Shareholder, enforceable against such Shareholder
in
accordance with its terms. The execution and delivery by such Shareholder 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, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, or to
increased, additional, accelerated or guaranteed rights or entitlements of
any
person under, or result in the creation of any Lien upon any of the properties
or assets of such Shareholder under, any provision of any Contract to which
such
Shareholder is a party or by which any properties or assets of such Shareholder
are bound or, subject to the filings and other matters referred to in the next
sentence, any provision of any Judgment or Law applicable to such Shareholder
or
the properties or assets of such Shareholder. No Consent of, or registration,
declaration or filing with, any Governmental Authority is required to be
obtained or made by or with respect to such Shareholder in connection with
the
execution, delivery and performance of this Agreement or the consummation of
the
transactions contemplated hereby, other than such reports under
Sections 13(d) and 16 of the Exchange Act as may be required in connection
with this Agreement and the transactions contemplated hereby. If such
Shareholder is married and the Subject Shares of such Shareholder constitute
community property or otherwise need spousal or other approval to be legal,
valid and binding, this Agreement has been duly authorized, executed and
delivered by, and constitutes a valid and binding agreement of, such
Shareholder’s spouse, enforceable against such spouse in accordance with its
terms. No trust of which such Shareholder is a trustee requires the consent
of
any beneficiary to the execution and delivery of this Agreement or to the
consummation of the transactions contemplated hereby.
(b) The
Subject Shares.
Such
Shareholder is the record and beneficial owner of, or is the trustee of a trust
that is the record holder of, and whose beneficiaries are the beneficial owners
of, and has good and marketable title to, the Subject Shares set forth opposite
such Shareholder’s name on Schedule A attached hereto, free and clear of
any Liens. Such Shareholder does not own, of record or beneficially, any shares
of capital stock of the Company other than the Subject Shares set forth opposite
such Shareholder’s name on Schedule A attached hereto. Such Shareholder has
the sole right to vote such Subject Shares, and none of such Subject Shares
is
subject to any voting trust or other agreement, arrangement or restriction
with
respect to the voting of such Subject Shares, except as contemplated by this
Agreement.
SECTION
2. Representations
and Warranties of Parent.
Parent
hereby represents and warrants to each Shareholder as follows: Parent has all
requisite corporate power and authority to execute and delivery this Agreement
and to consummate the transactions contemplated hereby. The execution and
delivery by Parent of this Agreement and consummation of the transactions
contemplated hereby have been duly authorized by all necessary action on the
part of Parent. Parent has duly executed and delivered this Agreement, and
this
Agreement constitutes the legal, valid and binding obligation of Parent,
enforceable against Parent in accordance with its terms. The execution and
delivery by Parent 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, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, or to increased, additional, accelerated or guaranteed rights or
entitlements of any person under, or result in the creation of any Lien upon
any
of the properties or assets of Parent under, any provision of any Contract
to
which Parent is a party or by which any properties or assets of Parent are
bound
or, subject to the filings and other matters referred to in the next sentence,
any provision of any Judgment or Law applicable to Parent or the properties
or
assets of Parent. No Consent of, or registration, declaration or filing with,
any Governmental Authority is required to be obtained or made by or with respect
to Parent in connection with the execution, delivery and performance of this
Agreement or the consummation of the transactions contemplated hereby, other
than such reports under Sections 13(d) and 16 of the Exchange Act as may be
required in connection with this Agreement and the transactions contemplated
hereby.
2
SECTION
3. Covenants
of Each Shareholder.
Each
Shareholder, severally and not jointly, covenants and agrees as
follows:
(a) (1) At
any meeting of the shareholders of the Company called to seek the Company
Shareholders’ Approval or in any other circumstances upon which a vote, consent
or other approval (including by written consent) with respect to the Merger
Agreement, the Merger or any other transaction contemplated by the Merger
Agreement is sought, such Shareholder shall vote (or cause to be voted) the
Subject Shares of such Shareholder in favor of granting the Company
Shareholders’ Approval.
(2) Such
Shareholder hereby irrevocably grants to, and appoints, Parent and Xxxxxxxxx
Electric Holdings Inc., or any of them, and any individual designated in writing
by any of them, and each of them individually, as such Shareholder’s proxy and
attorney-in-fact (with full power of substitution), for and in the name, place
and stead of such Shareholder, to vote the Subject Shares of such Shareholder,
or grant a consent or approval in respect of the Subject Shares of such
Shareholder in a manner consistent with this Section 3. Such Shareholder
understands and acknowledges that Parent is entering into the Merger Agreement
in reliance upon such Shareholder’s execution and delivery of this Agreement.
Such Shareholder hereby affirms that the irrevocable proxy set forth in this
Section 3(a) 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 such Shareholder under this Agreement. Such Shareholder hereby
further affirms that the irrevocable proxy is coupled with an interest and
may
under no circumstances be revoked. Such Shareholder hereby ratifies and confirms
all that such irrevocable proxy 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 7.22 of Chapter 156D of the MBCA.
The proxy and power of attorney granted by each Shareholder is a durable power
of attorney and shall survive the bankruptcy, death or incapacity of such
Shareholder. The irrevocable proxy granted hereunder shall automatically
terminate upon the termination of Sections 3(a) and 3(b).
(b) At
any meeting of shareholders of the Company or at any adjournment thereof or
in
any other circumstances upon which such Shareholder’s vote, consent or other
approval is sought, such Shareholder shall vote (or cause to be voted) the
Subject Shares of such Shareholder against (i) any merger agreement or
merger (other than the Merger Agreement and the Merger), consolidation,
combination, sale of substantial assets, reorganization, recapitalization,
dissolution, liquidation or winding up of or by the Company, (ii) any
Acquisition Proposal and (iii) any amendment of the articles of
organization or bylaws of the Company or other proposal or transaction involving
the Company or any Company Subsidiary, which amendment or other proposal or
transaction would in any manner impede, frustrate, prevent or nullify any
provision of the Merger Agreement, the Merger or any other transaction
contemplated by the Merger Agreement or change in any manner the voting rights
of any class of Company Capital Stock. Such Shareholder shall not commit or
agree to take any action inconsistent with the foregoing.
3
(c) Other
than this Agreement, such Shareholder shall not (A) sell, transfer, pledge,
assign or otherwise dispose of (including by gift) (collectively, “Transfer”),
or
enter into any Contract, option or other arrangement (including any profit
sharing arrangement) with respect to the Transfer of, any Subject Shares to
any
person other than pursuant to the Merger or (B) enter into any voting
arrangement, whether by proxy, voting agreement or otherwise, with respect
to
any Subject Shares and shall not commit or agree to take any of the foregoing
actions, other than any such Transfer intended solely for the purpose of
planning for the orderly handling, disposition and administration of such
Shareholder’s estate; provided,
however,
that
any such transferee agrees to be bound by the terms of this
Agreement.
(d) Such
Shareholder shall not, nor shall it authorize or permit any officer, director
or
employee of, or any investment banker, attorney or other adviser or
representative of, such Shareholder to, (i) directly or indirectly solicit,
initiate or encourage the submission of, any Acquisition Proposal,
(ii) enter into any agreement with respect to any Acquisition Proposal or
(iii) directly or indirectly participate in any discussions or negotiations
regarding, or furnish to any person any information with respect to, or take
any
other action to facilitate any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any Acquisition Proposal.
Such Shareholder promptly shall advise Parent orally and in writing of any
Acquisition Proposal or inquiry made to such Shareholder with respect to or
that
could lead to any Acquisition Proposal, the identity of the person making any
such Acquisition Proposal or inquiry and the material terms of any such
Acquisition Proposal or inquiry.
(e) Such
Shareholder shall use its best efforts to take, or cause to be taken, all
actions, and to do, or cause to be done, and to assist and cooperate with the
other parties in doing, all things necessary, proper or advisable to consummate
and make effective, in the most expeditious manner practicable, the Merger
and
the other transactions contemplated by the Merger Agreement. Such Shareholder
shall not issue any press release or make any other public statement with
respect to the Merger or any other transaction contemplated by the Merger
Agreement without the prior consent of Parent, except as may be required by
applicable law.
(f)
Such
Shareholder hereby consents to and approves the actions taken by the Board
of
Directors of the Company in approving the Merger Agreement, the Merger and
the
other transactions contemplated by the Merger Agreement. Such Shareholder hereby
waives, and agrees not to exercise or assert, any appraisal rights under the
MBCA in connection with the Merger.
SECTION
4. Termination.
This
Agreement, shall terminate upon the earliest of (i) the Effective Time,
(ii) the termination of the Merger Agreement in accordance with its terms
and (iii) the Termination Date, other than with respect to the liability of
any party for breach hereof prior to such termination.
4
SECTION
5. Additional
Matters.
(a) Each Shareholder shall, from time to time, execute 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.
(b)
None
of the Shareholders makes any agreement or understanding herein in his or her
capacity as a director or officer of the Company. Each Shareholder signs solely
in his, her or its capacity as the record holder and beneficial owner of, or
the
trustee of a trust whose beneficiaries are the beneficial owners of, such
Shareholder’s Subject Shares and nothing herein shall limit or affect any
actions taken by any Shareholder in his capacity as an officer or director
of
the Company to the extent specifically permitted by the Merger
Agreement.
SECTION
6. General
Provisions.
(a) Amendments.
This
Agreement may not be amended except by an instrument in writing signed by each
of the parties hereto.
(b) Notice.
All
notices and other communications hereunder shall be 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 9.4 of the Merger
Agreement and to the Shareholders at their respective addresses set forth on
Schedule A 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 Sections, 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)
Severability.
If any
term or other provision of this Agreement is invalid, illegal or incapable
of
being enforced by any rule or 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 in an acceptable manner to the end that transactions contemplated
hereby are fulfilled to the extent possible.
(e) Counterparts.
This
Agreement may be executed in one or more counterparts, all of which shall be
considered one and the same agreement. This Agreement shall become effective
against Parent when one or more counterparts have been signed by Parent and
delivered to each Shareholder. This Agreement shall become effective against
any
Shareholder when one or more counterparts have been executed by such Shareholder
and delivered to Parent. Each party need not sign the same
counterpart.
5
(f) Entire
Agreement; No Third-Party Beneficiaries.
This
Agreement (i) constitutes the entire agreement and supersedes all prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof and (ii) is not intended to confer
upon any person other than the parties hereto any rights or remedies
hereunder.
(g) Governing
Law.
This
Agreement shall be governed by the laws of the State of New York without regard
to principles of conflicts of laws except to the extent the laws of the
Commonwealth of Massachusetts mandatorily apply to Section 3(a)(2) of this
Agreement or to the Merger.
(h)
Assignment.
Neither
this Agreement nor any of the rights, interests or obligations under this
Agreement shall be assigned, in whole or in part, by operation of law or
otherwise, by Parent without the prior written consent of each Shareholder
or by
any Shareholder without the prior written consent of Parent, and any purported
assignment without such consent shall be void. Subject to the preceding
sentences, this Agreement will be binding upon, inure to the benefit of, and
be
enforceable by, the parties and their respective successors and
assigns.
(i)
Enforcement.
The
parties 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. It is accordingly agreed that the parties shall be entitled
to
specific performance of the terms hereof, this being in addition to any other
remedy to which they are entitled at law or in equity. Each of the parties
hereto hereby irrevocably and unconditionally consents and agrees to submit
to
the exclusive jurisdiction of the New York Courts for any litigation arising
out
of or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any litigation relating thereto except in such courts),
waives any objection to the laying of venue of any such litigation in the New
York Courts and agrees not to plead or claim in any New York Court that such
litigation brought therein has been brought in an inconvenient forum;
provided,
however,
that
nothing in this Section 6(i) is intended to waive the right of any party to
remove any such action or proceeding commenced in any such state court to an
appropriate federal court that is a New York Court to the extent the basis
for
such removal exists under applicable Law.
(j)
Waiver
of Jury Trial.
Each
party hereto hereby waives, to the fullest extent permitted by applicable Law,
any right it may have to a trial by jury in respect of any suit, action or
other
proceeding arising out of this Agreement or the transactions contemplated
hereby. Each party hereto (a) certifies that no representative, agent or
attorney of any other party has represented, expressly or otherwise, that such
party would not, in the event of any action, suit or proceeding, seek to enforce
the foregoing waiver and (b) acknowledges that it and the other parties
hereto have been induced to enter into this Agreement, by, among other things,
the mutual waiver and certifications in this Section 6(j).
6
[Remainder
of page intentionally left blank]
7
IN
WITNESS WHEREOF, each party has duly executed this Agreement, all as of the
date
first written above.
|
XXXXXXXXX
ELECTRIC SA,
|
|
|
by
|
|
| /s/ Xxxx Xxxxx Xxxxxxx | |
| Name: Xxxx Xxxxx Xxxxxxx | |
| Title: Senior Vice President and General Counsel | |
|
XXXXX
X. XXXXXXX XX.,
|
| /s/ Xxxxx X. Xxxxxxx Xx. |
|
XXXX
X. XXXXXXXXX,
|
| /s/ Xxxx X. Xxxxxxxxx |
[SIGNATURE
PAGE TO VOTING AGREEMENT]
8
SCHEDULE
A
|
Name
and Address
of
Shareholder
|
Number
of Shares of
Company
Common
Stock Owned
|
|
Xxxxx
X. Xxxxxxx, Xx.
|
11,909,024
|
|
Xxxx
X. Xxxxxxxxx
|
6,241,244
|
