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EXHIBIT 99.3
PARENT VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
April 26, 2000, among HMT Technology Corp., a Delaware corporation (the
"COMPANY"), and the undersigned stockholder (the "STOCKHOLDER") of Komag,
Incorporated, a Delaware corporation ("PARENT").
RECITALS
A. Parent, a subsidiary of Parent ("MERGER SUB") and the Company 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, all outstanding capital stock of the Company
shall be converted into the right to receive Parent Common Stock, as set forth
in the Merger Agreement (the "SHARE ISSUANCE").
B. Stockholder is the 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 Parent and shares subject
to outstanding options and warrants as is indicated on the signature page of
this Agreement.
C. In consideration of the execution of the Merger Agreement by the
Company, Stockholder (in his or her capacity as such) agrees to vote the Shares
(as defined below) and other such shares of capital stock of Parent over which
Stockholder has voting power so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties hereto agree
as follows:
1. Certain Definitions. Capitalized terms not defined herein shall have
the meanings ascribed to them in the Merger Agreement. For purposes of this
Agreement:
(a) "EXPIRATION DATE" shall mean the earlier to occur of (i) such
date and time as the Merger Agreement shall have been terminated pursuant to
Article VII thereof, or (ii) such date and time as the Merger shall become
effective in accordance with the terms and provisions of the Merger Agreement.
(b) "PERSON" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(c) "SHARES" shall mean: (i) all securities of Parent (including
all shares of Parent Common Stock and all options, warrants and other rights to
acquire shares of Parent Common Stock) owned by Stockholder as of the date of
this Agreement; and (ii) all additional securities of Parent (including all
additional shares of Parent Common Stock and all additional options, warrants
and other rights to acquire shares of Parent Common Stock) of which Stockholder
acquires ownership during the period from the date of this Agreement through the
Expiration Date.
(d) "TRANSFER." A Person 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
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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.
2. Transfer of Shares.
(a) Transferee of Shares to be Bound by this Agreement.
Stockholder agrees that, during the period from the date of this Agreement
through the Expiration Date, Stockholder shall not cause or permit any Transfer
of any of the Shares to be effected unless each Person to which any of such
Shares, or any interest in any of such Shares, is or may be transferred shall
have: (a) executed a counterpart of this Agreement and a proxy in the form
attached hereto as Exhibit A (with such modifications as the Company may
reasonably request); and (b) agreed in writing to hold such Shares (or interest
in such Shares) subject to all of the terms and provisions of this Agreement.
(b) Transfer of Voting Rights. Stockholder agrees that, during
the period from the date of this Agreement through the Expiration Date,
Stockholder 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 Stockholder under this Agreement with
respect to any of the Shares.
3. Agreement to Vote Shares. At every meeting of the stockholders of
Parent called, and at every adjournment thereof, and on every action or approval
by written consent of the stockholders of Parent, stockholder (in his or her
capacity as such) shall cause the Shares to be voted (to the extent such Shares
have voting rights and are entitled to vote thereon) in favor of the Share
Issuance. Notwithstanding the foregoing, and notwithstanding any other provision
of this Agreement, nothing in this Agreement shall limit or restrict stockholder
from acting in stockholder's capacity as a director or officer of Parent (it
being understood that this Agreement shall apply to stockholder solely in
stockholder's capacity as a stockholder of Parent) or voting in stockholder's
sole discretion on any matter other than those matters referred to in the
foregoing sentence of this Section 3.
4. Irrevocable Proxy. Concurrently with the execution of this Agreement,
Stockholder agrees to deliver to the Company a proxy in the form attached hereto
as Exhibit A (the "PROXY"), which shall be irrevocable to the fullest extent
permissible by law, with respect to the Shares.
5. Representations and Warranties of the Stockholder. Stockholder (i) is
the beneficial owner of the shares of Parent Common Stock indicated on the final
page of this Agreement, free and clear of any liens, claims, options, rights of
first refusal, co-sale rights, charges or other encumbrances; (ii) does not
beneficially own any securities of the Parent other than the shares of Parent
Common Stock and options and warrants to purchase shares of Common Stock of
Parent indicated on the final page of this Agreement; and (iii) has full power
and authority to make, enter into and carry out the terms of this Agreement and
the Proxy.
6. Additional Documents. Stockholder (in his or her capacity as such)
hereby covenants and agrees to execute and deliver any additional documents
necessary or desirable, in the reasonable opinion of the Company, to carry out
the intent of this Agreement.
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7. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
8. Miscellaneous.
(a) 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.
(b) 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
of the parties without prior written consent of the other.
(c) 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.
(d) Specific Performance; Injunctive Relief. The parties hereto
acknowledge that the Company shall be irreparably harmed and that there shall be
no adequate remedy at law for a violation of any of the covenants or agreements
of Stockholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to the Company upon any such violation,
the Company shall have the right to enforce such covenants and agreements by
specific performance, injunctive relief or by any other means available to the
Company at law or in equity.
(e) Notices. All notices and other communications pursuant to
this Agreement shall be in writing and deemed to be sufficient if contained in a
written instrument and shall be deemed given if delivered personally,
telecopied, sent by nationally-recognized overnight courier or mailed by
registered or certified mail (return receipt requested), postage prepaid, to the
parties at the following address (or at such other address for a party as shall
be specified by like notice):
If to the Company: HMT Technology Corp.
0000 Xxxx Xxxxxx
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx
With a copy to: Cooley Godward LLP
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Facsimile: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
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If to Stockholder: To the address for notice set forth on the
signature page hereof.
(f) Governing Law. This Agreement shall be governed by the laws
of the State of Delaware, without reference to rules of conflicts of law.
(g) Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
(h) Officers and Directors. To the extent that Stockholder is or
becomes (during the term hereof) a director or officer of Parent, he or she
makes no agreement or understanding herein in his or her capacity as such
director or officer, and nothing herein will limit or affect, or give rise to
any liability to Stockholder by virtue of, any actions taken by Stockholder in
his or her capacity as an officer or director of Parent in exercising its rights
under the Merger Agreement.
(i) Effect of Headings. The section headings are for convenience
only and shall not affect the construction or interpretation of this Agreement.
(j) 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.
[THE REMAINDER OF THIS PAGE HAS BEEN INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed on the day and year first above written. The undersigned is executing
this Agreement only in its capacity as a stockholder. Such signature in no way
affects its obligations as an officer or director of Parent.
HMT Technology Corp. STOCKHOLDER
By: By:
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Signature
Name: Name:
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Title: Title:
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Print Address
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Telephone
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Facsimile No.
Share beneficially owned:
___________ Parent Common Shares
___________ Parent Common Shares
issuable upon exercise of outstanding
options or warrants
[SIGNATURE PAGE TO PARENT VOTING AGREEMENT]
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EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Komag, Incorporated, a Delaware
corporation ("PARENT"), hereby irrevocably (to the fullest extent permitted by
law) appoints the directors on the Board of Directors of HMT Technology Corp., a
Delaware corporation (the "COMPANY"), and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Parent that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Parent issued or issuable in respect thereof on or after
the date hereof (collectively, the "SHARES") in accordance with the terms of
this Proxy. The Shares beneficially owned by the undersigned stockholder of
Parent as of the date of this Proxy are listed on the final page of this Proxy.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date (as defined below).
This Proxy is irrevocable (to the fullest extent permitted by law), is
coupled with an interest and is granted pursuant to that certain Parent Voting
Agreement of even date herewith by and among the Company and the undersigned
stockholder (the "VOTING AGREEMENT"), and is granted in consideration of the
Company entering into that certain Agreement and Plan and Reorganization (the
"MERGER AGREEMENT"), by and between Parent, a subsidiary of Parent ("MERGER
SUB") and the Company. The Merger Agreement provides for the merger of Merger
Sub with and into the Company in accordance with its terms (the "MERGER").
Pursuant to the Merger, all outstanding capital stock of the Company shall be
converted into the right to receive Parent Common Stock, as set forth in the
Merger Agreement (the "SHARE ISSUANCE"). As used herein, the term "EXPIRATION
DATE" shall mean the earlier to occur of (i) such date and time as the Merger
Agreement shall have been validly terminated pursuant to Article VII thereof or
(ii) such date and time as the Merger shall become effective in accordance with
the terms and provisions of the Merger Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents) at every annual, special or adjourned meeting of stockholders
of Parent and in every written consent in lieu of such meeting in favor of the
Share Issuance.
The attorneys and proxies named above may not exercise this Proxy on any
other matter except as provided above. 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. The undersigned is executing this
Proxy only in its capacity as a stockholder. Such signature in no way affects
its obligations as an officer or director of Parent.
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This Proxy is irrevocable (to the fullest extent permitted by law). This
Proxy shall terminate, and be of no further force and effect, automatically upon
the Expiration Date.
Dated: , 2000
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Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
__________ Parent Common Shares
__________ Parent Common Shares
issuable upon exercise of
outstanding options or warrants
[SIGNATURE PAGE TO IRREVOCABLE PROXY]
