EXHIBIT 2.3
VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of May 18,
1998, between Quantum Corporation, a Delaware corporation ("Parent"), and the
undersigned stockholder ("Stockholder") of ATL Products, Inc., a Delaware
corporation ("Company").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, Company and
Quick Acquisition Corp., a Delaware corporation and a wholly owned subsidiary of
Parent ("Merger Sub"), have entered into an Agreement and Plan of Reorganization
(the "Merger Agreement") which provides for the merger (the "Merger") of Merger
Sub with and into the Company. Pursuant to the Merger, shares of capital stock
of the Company will be converted into Common Stock of Parent on the basis
described in the Merger Agreement.
B. The Stockholder is the record holder and beneficial owner (as defined
in Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the
"Exchange Act")) of such number of shares of the outstanding Class A Common
Stock and Class B Common Stock of the Company (collectively, the "Company Common
Stock") as is indicated on the final page of this Agreement (the "Shares").
C. Parent desires the Stockholder to agree, and the Stockholder is
willing to agree, not to transfer or otherwise dispose of any of the Shares, or
any other shares of capital stock of the Company acquired hereafter and prior to
the Expiration Date (as defined in Section 1.1 below, except as otherwise
permitted hereby), and to vote the Shares and any other such shares of capital
stock of the Company so as to facilitate consummation of the Merger.
NOW, THEREFORE, in consideration of the parties agree as follows:
1. Agreement to Retain Shares.
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1.1 Transfer and Encumbrance. Stockholder agrees not to transfer
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(except as may be specifically required by court order), sell, exchange, pledge
or otherwise dispose of or encumber any of the Shares or any New Shares as
defined in Section 1.2 below, or to make any offer or agreement relating
thereto, at any time
prior to the Expiration Date. As used herein, the term "Expiration Date" shall
mean the earlier to occur of (i) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement
and (ii) such date and time as the Merger Agreement shall be terminated pursuant
to Article VII thereof.
1.2 Additional Purchases. Stockholder agrees that any shares of
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capital stock of the Company that Stockholder purchases or with respect to which
Stockholder otherwise acquires beneficial ownership after the execution of this
Agreement and prior to the Expiration Date ("New Shares") shall be subject to
the terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. At every meeting of the stockholders of the
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Company called with respect to any of the following, and at every adjournment
thereof, and on every action or approval by written consent of the stockholders
of the Company with respect to any of the following, Stockholder shall vote the
Shares and any New Shares: (i) in favor of approval of the Merger Agreement and
the Merger and any matter that could reasonably be expected to facilitate the
Merger; and (ii) against approval of any proposal made in opposition to or
competition with consummation of the Merger and against any merger,
consolidation, sale of assets, reorganization or recapitalization, with any
party other than with Parent and its affiliates and against any liquidation or
winding up of the Company (each of the foregoing is hereinafter referred to as
an "Opposing Proposal"). Stockholder agrees not to take any actions contrary to
Stockholder's obligations under this Agreement.
3. Irrevocable Proxy. Concurrently with the execution of this Agreement,
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Stockholder agrees to deliver to Parent a proxy in the form attached hereto as
Exhibit A (the "Proxy"), which shall be irrevocable, with the total number of
shares of capital stock of the Company beneficially owned (as such term is
defined in Rule 13d-3 under the Exchange Act) by Stockholder set forth therein.
4. Representations, Warranties and Covenants of the Stockholder.
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Stockholder hereby represents, warrants and covenants to Parent as follows:
4.1 Ownership of Shares. Stockholder (i) is the beneficial owner of
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the Shares, which at the date hereof and at all times up until the Expiration
Date will be free and clear of any liens, claims, options, charges or other
encumbrances; (ii) does not beneficially own any shares of capital stock of the
Company other than the Shares (excluding shares as to which Stockholder
currently disclaims beneficial
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ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy.
4.2 No Proxy Solicitations. Stockholder will not, and will not
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permit any entity under Stockholder's control to: (i) solicit proxies or become
a "participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Opposing Proposal or otherwise
encourage or assist any party in taking or planning any action that would
compete with, restrain or otherwise serve to interfere with or inhibit the
timely consummation of the Merger in accordance with the terms of the Merger
Agreement; (ii) initiate a stockholders' vote or action by consent of the
Company stockholders with respect to an Opposing Proposal; or (iii) become a
member of a "group" (as such term is used in Section 13(d) of the Exchange Act)
with respect to any voting securities of the Company with respect to an Opposing
Proposal.
5. Additional Documents. Stockholder hereby covenants and agrees to
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execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent or Stockholder, as the case may be, to carry out
the intent of this Agreement.
6. Consent and Waiver. Stockholder hereby gives any consents or waivers
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that are reasonably required for the consummation of the Merger under the terms
of any agreements to which Stockholder is a party or pursuant to any rights
Stockholder may have.
7. Termination. This Agreement and the Proxy delivered in connection
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herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Miscellaneous.
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8.1 Severability. If any term, provision, covenant or restriction of
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this Agreement is held by a court of competent jurisdiction to be invalid, void
or unenforceable, then the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
8.2 Binding Effect and Assignment. This Agreement and all of the
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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
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specifically provided herein, either this Agreement nor any of the rights,
interests or obligations of the parties hereto may be assigned by either of the
parties without prior written consent of the other.
8.3 Amendments and Modification. This Agreement may not be modified,
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amended, altered or supplemented except upon the execution and delivery of a
written agreement executed by the parties hereto.
8.4 Specific Performance; Injunctive Relief. The parties hereto
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acknowledge that Parent will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreement of
Stockholder set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to Parent upon any such violation, Parent
shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity.
8.5 Notices. All notices, requests, claims, demands and other
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communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier (prepaid)
to the respective parties as follows:
If to Parent: Quantum Corporation
000 XxXxxxxx Xxxxxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
Attn: General Counsel
With a copy to: Wilson, Sonsini, Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxxx X. Xxxxxxx, Esq..
If to the Stockholder:
With copies to: Xxxxxxx, Phleger & Xxxxxxxx LLP
Spear Street Tower
Xxx Xxxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
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and:
Xxxxxxx, Phleger & Xxxxxxxx LLP
00 Xxxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxxx 00000-0000
Attention: Xxx Xxxxxxxxx, Esq.
or to such other address as any party may have furnished to the other in writing
in accordance herewith, except that notices of change of address shall only be
effective upon receipt.
8.6 Governing Law. This Agreement shall be governed by, and construed and
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enforced in accordance with, the internal laws of the State of [California].
8.7 Entire Agreement. This Agreement contains the entire understanding of
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the parties in respect of the subject matter hereof, and supersedes all prior
negotiations and understandings between the parties with respect to such subject
matter.
8.8 Counterparts. This Agreement may be executed in several counterparts,
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each of which shall be an original, but all of which together shall constitute
one and the same agreement.
8.9 Effect of Headings. The section headings herein are for convenience
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only and shall not affect the construction of interpretation of this Agreement.
8.10 Obligations of Stockholder. Stockholder makes no agreement or
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understanding herein in his or her capacity as a director or officer of Company,
and nothing herein will limit or affect any actions taken by Stockholder in his
or her capacity as an officer or director of Company in exercising its rights
under the Merger Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
QUANTUM CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
__________________________________
Title: CEO
_______________________________
STOCKHOLDER:
By: /s/ Xxxxx X. Xxxx
__________________________________
Xxxxx Xxxx
Stockholder's Address for Notice:
Shares beneficially owned:
___________________ shares of Class A
Common Stock and
___________________ shares of Class B
Common Stock
[Signature Page to Voting Agreement]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of ATL Products, Inc., a Delaware corporation
("Company"), hereby irrevocably appoints the directors on the Board of Directors
of Quantum Corporation, a Delaware corporation ("Parent"), and each of them, as
the sole and exclusive attorneys and proxies of the undersigned, with full power
of substitution and resubstitution, to the full extent of the undersigned's
rights with respect to the shares of capital stock of the Company beneficially
owned by the undersigned, which shares are listed on the final page of this
Proxy (the "Shares"), and any and all other shares or securities issued or
issuable in respect thereof on or after the date hereof, until such time as that
certain Agreement of Merger and Plan of Reorganization dated as of May 18, 1998
(the "Merger Agreement"), among Parent, Quick Acquisition Corp., a Delaware
corporation and a wholly-owned subsidiary of Parent ("Merger Sub"), and Company,
shall be terminated in accordance with its terms or the Merger (as defined in
the Merger Agreement) is effective. Upon the execution hereof, all prior
proxies given by the undersigned with respect to the Shares and any and all
other shares or securities issued or issuable in respect thereof on or after the
date hereof are hereby revoked and no subsequent proxies will be given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement
dated as of May 18, 1998 between Parent and the undersigned stockholder (the
"Voting Agreement"), and is granted in consideration of Parent entering into the
Merger Agreement. The attorneys and proxies named above will be empowered at
any time prior to termination of the Merger Agreement to exercise all voting and
other rights (including, without limitation, the power to execute and deliver
written consents with respect to the Shares) of the undersigned at every annual,
special or adjourned meeting of Company stockholders, and in every written
consent in lieu of such a meeting, or otherwise, in favor of approval of the
Merger and the Merger Agreement and any matter that could reasonably be expected
to facilitate the Merger, and against any proposal made in opposition to or
competition with the consummation of the Merger and against any merger,
consolidation, sale of assets, reorganization or recapitalization of the Company
with any party other than Parent and its affiliates and against any liquidation
or winding up of the Company.
The attorneys and proxies named above may only exercise this proxy to vote
the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the stockholders of
Company and in every written consent in lieu of such meeting, in favor of
approval of the Merger and the Merger Agreement and any matter that could
reasonably be expected to facilitate the Merger, and against any merger,
consolidation, sale of assets, reorganization or recapitalization of Company
with any party other than Parent and its affiliates, and
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against any liquidation or winding up of the Company, and may not exercise this
proxy on any other matter. The undersigned stockholder may vote the Shares on
all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: May 18, 1998
/s/ Xxxxx X. Xxxx
Signature of Stockholder:_________________________________________
Xxxxx X. Xxxx
Print Name of Stockholder:________________________________________
Shares beneficially owned:
______________ shares of Class A Common Stock
______________ shares of Class B Common Stock
[Signature Page to Proxy]
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