EXHIBIT 99.8
VOTING AGREEMENT
This VOTING AGREEMENT (the "Agreement") is made and entered into this
2nd day of September 1997, by and between Computer Products, Inc., a Florida
corporation ("CPI"), Zytec Corporation, a Minnesota corporation ("Zytec"), and
those certain principal shareholders of Zytec executing this Agreement (each a
"Shareholder" and, collectively, the "Shareholders").
R E C I T A L S:
WHEREAS, CPI, CPI Acquisition Corp., a Minnesota corporation and
wholly-owned subsidiary of CPI ("CPI Sub"), and Zytec contemplate entering into
an Agreement and Plan of Merger (the "Merger Agreement") of even date herewith
providing, among other things, for the merger (the "Merger") of CPI Sub with and
into Zytec (capitalized terms not otherwise defined herein shall be as defined
in the Merger Agreement);
WHEREAS, a committee of disinterested directors of Zytec, separately,
and the entire Board of Directors of Zytec each has approved the transactions
contemplated by the Merger Agreement and this Agreement;
WHEREAS, each Shareholder is the owner of the number of shares of
common stock, no par value, of Zytec (the "Zytec Common Stock") set forth
opposite his name on Schedule A hereto (being collectively referred to herein as
the "Subject Shares");
WHEREAS, CPI wishes to consummate the Merger pursuant to the terms and
conditions of the Merger Agreement; however, before executing the Merger
Agreement, CPI requires certain assurances and commitments from the Shareholders
as set forth herein; and
WHEREAS, in order to induce CPI to enter into the Merger Agreement,
the Shareholders have agreed to enter into this Agreement, which provides for
certain voting agreements and resale restrictions with respect to the Subject
Shares.
NOW, THEREFORE, in consideration of the premises and the
representations, warranties and agreements contained herein, CPI and the
Shareholders agree as follows:
1. VOTING AGREEMENT. (a) Each Shareholder covenants and agrees that
until the earlier of the (i) consummation of the Merger and (ii) termination of
the Merger Agreement in accordance with Section 9.1 thereof (the "Restriction
Period"), at any meeting of shareholders of Zytec 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, the Shareholder shall vote (or cause to be
voted) the Subject Shares in favor of the Merger, the adoption of the Merger
Agreement and the approval of the terms thereof and each of the other
transactions contemplated by the Merger Agreement.
(b) Each Shareholder covenants and agrees that, during the
Restriction Period, at any meeting of shareholders of Zytec or at any
adjournment thereof or in any other circumstances upon which the Shareholder's
vote, consent or other approval is sought, the Shareholder shall vote (or cause
to be voted) the Subject Shares against (i) any Business Combination Proposal,
as such term is defined in Section 7.10(a) of the Merger Agreement or (ii) any
amendment of Zytec's Articles of Incorporation or By-laws or other proposal or
transaction involving Zytec, which amendment or other proposal or transaction
could be reasonably likely to impede, frustrate, prevent or nullify the Merger,
the Merger Agreement or any of the other transactions contemplated by the Merger
Agreement or change in any manner the voting rights of the Zytec Common Stock.
During the Restriction Period, the Shareholder further agrees not to enter into
any voting arrangement, whether by proxy, voting agreement or otherwise, in
connection with any Business Combination Proposal.
2. RESTRICTIONS ON TRANSFER. Each Shareholder covenants and agrees
that, during the Restriction Period, it shall not sell, tender, transfer, give,
pledge, assign or otherwise dispose of (including by gift) (collectively,
"Transfer"), consent to any Transfer of, any or all of such Subject Shares or
any interest therein or enter into any contract, option or other arrangement
with respect to the Transfer of, the Subject Shares to any person other than
pursuant to the terms of the Merger Agreement.
3. GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY. (a) Each
Shareholder hereby irrevocably grants to, and appoints, Xxxxxx X. X'Xxxxxxx and
Xxxxxxx X. Xxxxxxxx, in their respective capacities as officers of CPI, and any
individual who shall hereafter succeed to any such office of CPI, and each of
them individually, 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 such Shareholder's Subject Shares, or grant a consent or
approval in respect of such Subject Shares (i) in favor of the Merger, the
adoption of the Merger Agreement and the approval of the terms thereof and each
of the other transactions contemplated by the Merger Agreement and (ii) against
any Business Combination Proposal or amendment of Zytec's Articles
2
of Incorporation or By-laws, or other proposal or transaction (including any
consent solicitation to remove or elect any directors of Zytec) involving Zytec
which amendment or other proposal or transaction could be reasonably likely to
impede, frustrate, prevent or nullify, or result in a breach of any covenant,
representation or warranty or any other obligation or agreement of Zytec under
or with respect to, the Merger, the Merger Agreement or any of the other
transactions contemplated by the Merger Agreement.
(b) Such Shareholder represents that any proxies heretofore given in
respect of such Shareholder's Shares are not irrevocable, and that any such
proxies are hereby revoked.
(c) Such Shareholder hereby affirms that the irrevocable proxy set
forth in this Section 3 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 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 302A.449 of the
Minnesota Business Corporation Act. Notwithstanding the foregoing, such
irrevocable proxy shall terminate and be of no force and effect upon termination
of the Restriction Period.
4. REPRESENTATIONS AND WARRANTIES OF EACH SHAREHOLDER. Each
Shareholder hereby, severally and not jointly, represents and warrants to CPI as
of the date hereof in respect of himself as follows:
(a) CAPACITY. The Shareholder has all requisite legal capacity to
enter into this Agreement and to consummate the transactions contemplated
hereby. This Agreement constitutes a valid and binding obligation of the
Shareholder enforceable against such Shareholder in accordance with its terms.
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,
(i) conflict with, or result in any violation of, or default (with or without
notice or lapse of time or both) under any provision of, any agreement or
instrument applicable to the Shareholder, (ii) require any filing with, or
permit, authorization, consent or approval of, any federal, state or local
government or any court, tribunal, administrative agency or other governmental
authority, domestic, foreign or transnational, or (iii) violate any judgment,
order, writ, injunction, decree, statute, rule or regulation applicable to the
Shareholder or
3
any of the Shareholder's property or assets, including the Subject Shares.
(b) THE SUBJECT SHARES. The Shareholder is the record and beneficial
owner of, and has good and marketable title to, the Subject Shares set forth
opposite his name on Schedule A attached hereto, free and clear of any claims,
liens, encumbrances and security interests whatsoever. The Shareholder does not
own, of record or beneficially, any shares of capital stock of Zytec other than
the Subject Shares set forth opposite his or its name on Schedule A attached
hereto. The 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.
5. REPRESENTATIONS AND WARRANTIES OF CPI. CPI hereby represents and
warrants to each Shareholder that it has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution, delivery and performance of
this Agreement by CPI, and the consummation of the transactions contemplated
hereby, have been duly authorized by all necessary corporate action on the part
of CPI. This Agreement has been duly executed and delivered by CPI and
constitutes a valid and binding obligation of CPI enforceable against it in
accordance with its terms. 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, (i) 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 Articles of Incorporation or By-Laws of CPI, or any agreement or
instrument applicable to CPI, (ii) require any filing with, or permit,
authorization, consent or approval of, any federal, state or local government or
any court, tribunal, administrative agency or other governmental authority,
domestic, foreign or transnational, or (iii) violate any judgment, order, writ,
injunction, decree, statute, rule or regulation applicable to CPI or any of its
property or assets.
6. FURTHER ASSURANCES. Each Shareholder shall, at CPI's expense,
from time to time, execute and deliver, or cause to be executed and delivered,
such additional or further consents, documents and other instruments as CPI may
reasonably request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
7. CERTAIN EVENTS. (a) Each Shareholder agrees that this Agreement
and the obligations hereunder shall attach to such Shareholder's Subject Shares
and shall be binding upon
4
any person or entity to which legal or beneficial ownership of such Subject
Shares shall pass, whether by operation of law or otherwise, including without
limitation such Shareholder's heirs, guardians, administrators or legal
representatives. In the event of any stock split, stock dividend, merger,
reorganization, recapitalization or other change in the capital structure of
Zytec affecting the Zytec Common Stock, or the acquisition of additional shares
of the Zytec Common Stock or other voting securities of Zytec by any
Shareholder, the number of Subject Shares listed in Schedule A beside the name
of such Shareholder shall be adjusted appropriately and this Agreement and the
obligations hereunder shall attach to any additional shares of Zytec Common
Stock or other voting securities of Zytec issued to or acquired by such
Shareholder.
(b) Each Shareholder agrees that such Shareholder shall tender to
CPI, promptly upon CPI's request therefor, any and all certificates representing
such Shareholder's Subject Shares in order that CPI may inscribe upon such
certificates the following legend: "The Shares of Common Stock, no par value,
of Zytec are subject to a Voting Agreement, dated as of September 2, 1997, and
may not be sold or otherwise transferred in accordance therewith. Copies of
such Agreement may be obtained at the principal executive offices of Zytec."
8. SPECIFIC ENFORCEMENT. The Shareholder acknowledges and agrees
that CPI would be irreparably damaged in the event any of the provisions of this
Agreement were not performed by the Shareholder in accordance with their
specific terms or were otherwise breached. It is accordingly agreed that CPI
shall be entitled to an injunction or injunctions to prevent breaches of the
provisions of this Agreement and specifically to enforce the terms and
provisions hereof in any court of the United States or any state thereof having
jurisdiction, in addition to any other remedy to which CPI may be entitled at
law or equity.
9. ASSIGNMENT. Neither this Agreement nor any of the rights,
interests or obligations hereunder shall be assigned by any of the parties
without the prior written consent of the other parties, except that CPI may
assign any and all of its rights, interests and obligations hereunder to any
direct or indirect wholly owned subsidiary of CPI; PROVIDED, that CPI will
remain liable for its obligations hereunder. Subject to the preceding sentence,
this Agreement will be binding upon, and inure to the benefit of and be
enforceable by, the parties hereto and their respective successors, permitted
assigns, heirs, legal representatives and beneficiaries.
5
10. AMENDMENTS. This Agreement may not be amended or modified except
by an instrument in writing signed by each of the parties hereto.
11. NOTICES. All notices, requests, demands and other communications
hereunder shall be in writing and shall be deemed duly given when delivered by
hand, or when delivered if mailed by registered or certified mail or private
courier service, postage prepaid, to the respective addresses as follows:
If to CPI, to:
Computer Products, Inc.
0000 Xxxxxx Xxxx, Xxxxx 000
Xxxx Xxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxxx
Copy to:
Xxxxxxx, Calamari & Xxxxxxx
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: Xxxxxxx X. Xxxxxxxxxx, Esq.
If to the Shareholders, to their respective addresses set forth on
Schedule A attached hereto, or to such other address(es) as either party hereto
shall have designated by like notice to the other party hereto, with a copy to
Winthrop and Weinstine, P.A., 3200 Minnesota World Trade Center, 00 Xxxx Xxxxxxx
Xxxxxx, Xx. Xxxx, Xxxxxxxxx 00000, Attn: Sheman Winthrop, Esq.
12. COUNTERPARTS. This Agreement may be executed ln one or more
counterparts, all of which shall be considered 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.
13. GOVERNING LAW. This Agreement shall be governed by and construed
in accordance with the internal laws of the State of Minnesota.
14. ENTIRE AGREEMENT: NO THIRD-PARTY BENEFICIARIES. This Agreement
(including the documents and instruments referred to herein) (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.
6
IN WITNESS WHEREOF, CPI, Zytec, and the Shareholders have caused this
Agreement to be duly executed and delivered as of the date first written above.
COMPUTER PRODUCTS, INC.
By: /s/ Xxxxxx X. X'Xxxxxxx
-----------------------
Name:
Title:
ZYTEC CORPORATION
By: /s/ Xxxxxx X. Xxxxxxx
---------------------
Name:
Title:
SHAREHOLDERS:
/s/ Xxxxxx X. Xxxxxxx
---------------------
Xxxxxx X. Xxxxxxx
/s/ Xxxx X. Steel
-----------------
Xxxx X. Steel
/s/ Xxxxxxxx X. Xxxxxxxx
------------------------
Xxxxxxxx X. Xxxxxxxx
7
SCHEDULE A
OWNERSHIP OF ZYTEC COMMON STOCK
NAME AND ADDRESS OF SHAREHOLDER NUMBER OF SUBJECT SHARES
Xxxxxx X. Xxxxxxx 890,854
0000 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Xxxx X. Steel 757,606
0000 Xxxxxx Xxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Xxxxxxxx X. Xxxxxxxx 800,932
0000 Xxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Total
---------
2,449,392
8
