JOINT FILING AND SOLICITATION AGREEMENT
Exhibit 99.2
WHEREAS,
certain of the undersigned are stockholders, direct or beneficial, of Silicon
Storage Technology, Inc., a California corporation (the “Company”);
WHEREAS,
Xxxxx Investment Management LLC, a Delaware limited liability company (“RIM”),
Xxxxxx X. Xxxxx (“Xx. Xxxxx” and, together with RIM, the “Xxxxx Group”),
Dialectic Capital Partners LP, a Delaware limited partnership (“DCP”), Dialectic
Offshore, Ltd., a Cayman Islands exempted company (“DOF”), Dialectic Antithesis
Partners, LP, a Delaware limited partnership (“DAP”), Dialectic Antithesis
Offshore, Ltd., a Cayman Islands exempted company (“DAO”), Dialectic Capital
Management, LLC, a Delaware limited liability company (“DCM”), Xxxx Xxxxxxxxx
(“Xx. X. Xxxxxxxxx”), Xxxx Xxxxxxxxx (“Xx. X. Xxxxxxxxx” and, together with DCP,
DOF, DAP, DAO, DCM, and Xx. X. Xxxxxxxxx, the “Dialectic Group”) and Xxxxx X.
Xxxxxx, III (“Xx. Xxxxxx” and, together with the Xxxxx Group and the Dialectic
Group, the “Group”), wish to form a group for the purpose of (a) voting against
and soliciting proxies or written consents against a proposed merger
involving the Company, Technology Resources Holdings, Inc., and Technology
Resources Merger Sub, Inc., to be submitted to a vote of the shareholders of the
Company at a special meeting of shareholders (the “Proposed Merger”),
(b) calling a special meeting of shareholders for the purpose of removing up to
all of the existing directors serving on the Company’s Board of Directors and
replacing them with a slate of director nominees to be selected by the
undersigned, and voting in favor of and soliciting proxies or written consents
in favor of such proposals, and (c) taking all other action necessary to achieve
the foregoing (the “Solicitation”).
NOW, IT
IS AGREED, this 30th day
of December 2009 by the parties hereto:
1. In
accordance with Rule 13d-1(k)(1)(iii) under the Securities Exchange Act of 1934,
as amended (the “Exchange Act”), each of the undersigned agrees to the joint
filing on behalf of each of them of statements on Schedule 13D with respect to
the securities of the Company to the extent required under applicable securities
laws. Each of the undersigned agrees to the joint filing of any
necessary amendments to the Schedule 13D. Each member of the Group
shall be responsible for the accuracy and completeness of his/its own disclosure
therein, and is not responsible for the accuracy and completeness of the
information concerning the other members, unless such member knows or has reason
to know that such information is inaccurate.
2. Each
member of the Group, including its respective affiliates, agrees not to directly
or indirectly, sell, transfer, make any short sale of, loan, grant any option
for the purchase of or otherwise dispose of any securities of the Company except
to other members of the Group without the prior written consent of each of the
undersigned.
3. Each
of the undersigned agrees to form the Group for the purpose of (a) voting
against and soliciting proxies or written consents against the
Proposed Merger, (b) calling a special meeting of shareholders for the purpose
of removing up to all of the existing directors serving on the Company’s Board
of Directors and replacing them with a slate of director nominees to be selected
by the undersigned, and voting in favor of and soliciting proxies or
written consents in favor of such proposals, and (c) taking all other action
necessary to achieve the foregoing.
4. The
Dialectic Group and Xx. Xxxxxx shall have the right to pre-approve all expenses
incurred in connection with the Group’s activities and agree to pay directly all
such expenses on a pro rata basis between each member of the Dialectic Group and
Xx. Xxxxxx based on the number of shares of Common Stock of the Company
beneficially owned by such entities on the date hereof. In addition
to the other expenses to be shared by the Dialectic Group and Xx. Xxxxxx
pursuant to this Section 4, the reasonable legal fees and expenses of each
member of the Group shall be considered a Group expense.
5. Each
of the undersigned agrees that any SEC filing, press release or stockholder
communication proposed to be made or issued by the Group in connection with the
Group’s activities set forth in Section 3 shall be first reviewed by the Xxxxx
Group, or its respective representatives, before final approval by the Dialectic
Group and Xx. Xxxxxx, which approval shall not be unreasonably
withheld.
6. Should
any disagreement arise between any Group members concerning decisions to be made
or actions to be taken in connection with the Group’s activities set forth in
Section 3, including, but not limited to the activities identified in Section 5,
the Xxxxx Group shall have the sole authority to resolve any such disagreements
and take any such actions as it sees fit.
7. The
relationship of the parties hereto shall be limited to carrying on the business
of the Group in accordance with the terms of this Agreement. Such
relationship shall be construed and deemed to be for the sole and limited
purpose of carrying on such business as described herein. Nothing
herein shall be construed to authorize any party to act as an agent for any
other party, or to create a joint venture or partnership, or to constitute an
indemnification. Nothing herein shall restrict any party’s right to
purchase securities of the Company, as he/it deems appropriate, in his/its sole
discretion.
8. This
Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which, taken together, shall constitute but one and the same
instrument, which may be sufficiently evidenced by one counterpart.
9. In
the event of any dispute arising out of the provisions of this Agreement or
their investment in the Company, the parties hereto consent and submit to the
exclusive jurisdiction of the Federal and State Courts in the State of New
York.
10. Any
party hereto may terminate his/its obligations under this Agreement only after
the earlier of (a) the first business day following the conclusion of the
Solicitation, or (b) on 24 hours’ written notice to all other parties, with a
copy by fax to Xxxxx Xxxxxxx at Xxxxxx Xxxxxxxx Frome Xxxxxxxxxx & Xxxxxxx
LLP (“Xxxxxx”), Fax No. (000) 000-0000.
11. Each
party acknowledges that Xxxxxx shall act as counsel for both the Group and the
Xxxxx Group and its affiliates relating to their investment in the
Company.
12. Each
of the undersigned parties hereby agrees that this Agreement shall be filed as
an exhibit to the Schedule 13D pursuant to Rule 13d-1(k)(1)(iii) under the
Exchange Act.
13. This
Agreement, the Solicitation and the matters contemplated hereby as they relate
to the Group and its activities, exclude the shares of common stock of the
Company held by Trust A-4 and reported by Xxxxx X. Xxxxxx III on Schedule 13D.
With respect to the shares held by Trust A-4, Xx. Xxxxxx agrees to take
commercially reasonable efforts, consistent with his duties and responsibilities
as an investment advisor and otherwise consistent with applicable law, to
recommend to the trustee that the trustee vote the shares held by Trust A-4 in
accordance with the recommendations of the Group.
[Signature
page on next page]
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IN
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed as
of the day and year first above written.
Dated:
December 30, 2009
XXXXX
INVESTMENT MANAGEMENT LLC
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By:
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/s/
Xxxxxx X. Xxxxx
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Name:
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Xxxxxx
X. Xxxxx
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Title:
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Managing
Member
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/s/
Xxxxxx X. Xxxxx
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XXXXXX
X. XXXXX
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DIALECTIC
CAPITAL PARTNERS LP
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By:
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Dialectic
Capital, LLC, its general partner
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By:
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/s/ Xxxx Xxxxxxxxx | ||
Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Member
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DIALECTIC
OFFSHORE, LTD.
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By:
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Director
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DIALECTIC
ANTITHESIS PARTNERS, LP
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By:
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Dialectic
Capital, LLC, its general partner
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By:
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/s/ Xxxx Xxxxxxxxx | ||
Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Member
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DIALECTIC
ANTITHESIS OFFSHORE, LTD.
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By:
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/s/
Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Director
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3
DIALECTIC
CAPITAL MANAGEMENT, LLC
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By:
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/s/
Xxxx Xxxxxxxxx/s/ Xxxx Xxxxxxxxx
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Name:
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Xxxx
Xxxxxxxxx
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Title:
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Managing
Member
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/s/
Xxxx Xxxxxxxxx
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XXXX
XXXXXXXXX
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/s/
Xxxx Xxxxxxxxx
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XXXX
XXXXXXXXX
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/s/
Xxxxx X. Xxxxxx, III
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XXXXX
X. XXXXXX, III
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