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EXHIBIT 2.3
SANMINA CORPORATION VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of July
13, 2001, by and between SCI Systems, Inc., a Delaware corporation ("SCI"), and
the undersigned affiliate ("Affiliate") of Sanmina Corporation, a Delaware
corporation ("Sanmina").
RECITALS
A. Concurrently with the execution of this Agreement, Sanmina,
SCI and Sun Acquisition Subsidiary, Inc., a Delaware corporation and a wholly
owned subsidiary of Sanmina ("Merger Sub"), have entered into an Agreement and
Plan of Reorganization dated as of July 13, 2001 (the "Merger Agreement") which
provides for the merger (the "Merger") of Merger Sub with and into SCI. Pursuant
to the Merger, shares of capital stock of SCI will be cancelled and, upon
surrender thereof, the holders will receive Common Stock of Sanmina on the basis
described in the Merger Agreement.
B. The Affiliate 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 capital stock of
Sanmina as is indicated on the final page of this Agreement (the "Shares").
C. SCI desires the Affiliate to agree, and the Affiliate is
willing to agree, not to transfer or otherwise dispose of any of the Shares, or
any other shares of capital stock of Sanmina 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
Sanmina so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Definitions.
1.1 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 Transfer. The Affiliate shall be deemed to have
effected a "Transfer" of a security if such person directly or indirectly: (i)
sells, pledges, encumbers, grants an option with respect to, transfers or
disposes of such security or any interest in such security; or (ii) enters into
an agreement or commitment providing for the sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein.
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2. Transfer of Shares.
2.1 Transferee of Shares to be Bound by this Voting
Agreement. Affiliate agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Affiliate shall not cause or permit any
Transfer of any of the Shares to be effected unless each transferee to which any
of such Shares, or any interest in any of such Shares, is or may be transferred
shall have: (X) executed a counterpart of this Voting Agreement and a proxy in
the form attached hereto as Exhibit A (with such modifications as SCI may
reasonably request); and (Z) agreed in writing to hold such Shares (or interest
in such Shares) subject to all of the terms and provisions of this Voting
Agreement; provided, however, that notwithstanding anything to the contrary
contained in this Agreement, each Affiliate may, without the consent of SCI or
any other person, and without compliance with (X) and (Y) above, transfer any or
all of the Shares (or any interest therein), on a cumulative basis, up to five
percent (5%) of the number of Shares owned by such Affiliate as of the date of
this Agreement.
2.2 Transfer of Voting Rights. Affiliate agrees that,
during the period from the date of this Voting Agreement through the Expiration
Date, Affiliate shall not deposit (or permit the deposit of) any Shares in a
voting trust or grant any proxy or enter into any voting agreement or similar
agreement in contravention of the obligations of Affiliate under this Voting
Agreement with respect to any of the Shares.
2.3 Additional Purchases. Affiliate agrees that any
shares of capital stock of Sanmina that Affiliate purchases or with respect to
which Affiliate 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.
3. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Affiliate agrees to deliver to SCI a proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the extent
provided in Section 212 of the Delaware General Corporation Law, with respect to
the total number of shares of capital stock of Sanmina beneficially owned (as
such term is defined in Rule 13d-3 under the Exchange Act) by Affiliate set
forth therein, provided, however, that the Proxy shall be revoked upon
expiration or termination of this Voting Agreement in accordance with its terms.
4. Representations, Warranties and Covenants of the Affiliate.
Affiliate hereby represents, warrants and covenants to SCI as follows: Affiliate
(i) is the beneficial owner of the Shares; (ii) does not beneficially own any
shares of capital stock of Sanmina other than the Shares (excluding shares as to
which Affiliate currently disclaims beneficial 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.
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5. No Limitation on Discretion as Director. This Agreement is
intended solely to apply to the exercise by Affiliate in his or her individual
capacity of rights attaching to ownership of the Shares, and nothing herein
shall be deemed to apply to, or to limit in any manner the discretion of
Affiliate with respect to, any action which may be taken or omitted by him or
her acting in his or her fiduciary capacity as a director of Sanmina.
6. Additional Documents. Affiliate hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of SCI or Affiliate, as the case may be, to carry out the
intent of this Agreement and the Proxy.
7. Consent and Waiver. Affiliate hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which Affiliate is a party or pursuant to any
rights Affiliate may have.
8. Termination. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect as
of the Expiration Date.
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9. Miscellaneous.
9.1 Severability. If any term, provision, covenant or
restriction of 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.
9.2 Binding Effect and Assignment. This Agreement and all
of the 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 specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either party without prior written consent of the other.
9.3 Amendments and Modification. This Agreement may not
be modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that SCI will be irreparably harmed and that there will be no
adequate remedy at law for a violation of any of the covenants or agreements of
Affiliate set forth herein. Therefore, it is agreed that, in addition to any
other remedies that may be available to SCI upon any such violation, SCI shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to SCI at law or in equity.
9.5 Notices. All notices, requests, claims, demands and
other communications hereunder shall be in writing and sufficient if delivered
in person, by cable, telegram or facsimile, or sent by mail (registered or
certified mail, postage prepaid, return receipt requested) or overnight courier
(prepaid) to the respective parties as follows:
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If to SCI: SCI Systems, Inc.
0000 Xxxx Xxxxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Telephone: (000) 000-0000
Facsimile: (256) ___-____
With a copy to its General Counsel at the same address, and
With a copy to: Xxxxxx Xxxxxxxxx Xxxxxx & Xxxxxx LLP
16th Floor, 000 Xxxxxxxxx Xxxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. XxXxxxx, Xx.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
If to the Affiliate: To the address for notice set forth on the
last page hereof.
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxxxxxxxx Xxxxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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.
9.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware.
9.7 Entire Agreement. This Agreement contains the entire
understanding of 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.
9.8 Counterparts. This Agreement may be executed in several
counterparts, each of which shall be an original, but all of which together
shall constitute one and the same agreement.
9.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of this
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.
SCI SYSTEMS, INC.
By:
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Title:
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AFFILIATE:
By:
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Affiliate's Address for Notice:
Shares beneficially owned:
_______________ shares of Common Stock
Shares subject to outstanding options:
_______________ shares of Common Stock
***VOTING AGREEMENT***
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Exhibit A
IRREVOCABLE PROXY
The undersigned stockholder of Sanmina Corporation, a Delaware
corporation ("Sanmina"), hereby irrevocably (to the extent provided in Section
212 of the Delaware General Corporation Law) appoints the directors on the Board
of Directors of SCI Systems, Inc., a Delaware corporation ("SCI"), and each of
them individually, 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 Sanmina 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 and Plan of Reorganization dated as of
July 13, 2001 (the "Merger Agreement"), among Sanmina, Sun Acquisition
Subsidiary, a Delaware corporation and a wholly owned subsidiary of Sanmina
("Merger Sub"), and SCI, 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 (to the extent provided in Section 212 of the
Delaware General Corporation Law), is granted pursuant to the Voting Agreement
dated as of July 13, 2001 between SCI and the undersigned stockholder (the
"Voting Agreement"), and is granted in consideration of SCI 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 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 Sanmina 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, the issuance of shares of Sanmina Common Stock by virtue of
the Merger and the change of Sanmina's corporate name.
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
Sanmina and in every written consent in lieu of such meeting, in favor of
approval of the Merger and the Merger Agreement, including the issuance of
shares of Sanmina Common Stock by virtue of the Merger and the change of
Sanmina's corporate name, and may not exercise this proxy on any other matter.
The undersigned stockholder may vote the Shares on all other matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: July 13, 2001
Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
shares of Common Stock
****IRREVOCABLE PROXY****
