EXHIBIT 2.2
VOTING AGREEMENT
THIS VOTING AGREEMENT (this "AGREEMENT") is made and entered into as of
July __, 2004 by and among Teledyne Wireless, Inc., a Delaware corporation
("TELEDYNE"), and the undersigned shareholder ("SHAREHOLDER") of Celeritek,
Inc., a California corporation (the "COMPANY").
W I T N E S S E T H:
WHEREAS, Teledyne and the Company are entering into an Asset Purchase
Agreement (the "PURCHASE AGREEMENT"), which provides for the Company's sale of
certain assets relating to its defense electronics division to Teledyne (the
"TRANSACTION"). The Company is seeking shareholder approval of the Transaction.
WHEREAS, each Shareholder is the beneficial owner of such number of shares
of the Company as is indicated on such Shareholder's signature page to this
Agreement.
WHEREAS, in consideration of the execution of the Purchase Agreement by
Teledyne, Shareholder (in his or her capacity as such) agrees to vote the Shares
and the New Shares (each as defined below) of the Company over which Shareholder
has voting power to approve of the Transaction as contemplated by the Purchase
Agreement.
NOW, THEREFORE, in consideration of the promises and the mutual covenants
and agreements herein contained, intending to be legally bound, the parties
hereto hereby agree as follows:
1. Capitalized Terms.
(a) The following capitalized terms shall have the respective
meanings ascribed thereto below:
"EXPIRATION DATE" shall mean the earlier to occur of (i) such date
and time as the Purchase Agreement shall have been terminated pursuant to
Article 11 thereof or (ii) such date and time as the Transaction shall be
consummated in accordance with the terms and provisions of the Purchase
Agreement.
"NEW SHARES" shall mean any shares of the Company that Shareholder
purchases or with respect to which Shareholder otherwise acquires
beneficial ownership after the date of this Agreement and prior to the
Expiration Date, including, without limitation, any shares issued or
issuable upon the conversion, exercise or exchange, as the case may be, of
any shares held by Shareholder which are convertible into, or exercisable
or exchangeable for, capital stock of the Company. New Shares shall be
subject to the terms and conditions of this Agreement to the same extent
as if they constituted Shares.
"PERSON" shall mean any individual, corporation, limited liability
company, partnership or other entity, or governmental authority.
"SHARES" shall mean all capital stock of the Company (including all
options, warrants and other rights to acquire shares) beneficially owned
by Shareholder as of the date of this Agreement.
"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 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.
(b) Capitalized terms used but not otherwise defined herein shall
have the meanings ascribed to them in the Purchase Agreement (as defined above).
2. Restrictions on Transfer of Shares.
(a) Transfer of Shares. During the period from the date of this
Agreement through the Expiration Date, Shareholder shall not cause or permit,
directly or indirectly, any Transfer of any of the Shares or New Shares to be
effected; provided, however, that notwithstanding the foregoing, Shareholder may
transfer Shares to a third party if the transferee shall have agreed in writing
to hold such Shares and New Shares (or interest in such Shares or New Shares)
subject to, and agree to abide by, all of the terms and conditions of this
Agreement.
(b) Transfer of Voting Rights. During the period from the date of
this Agreement through the Expiration Date, Shareholder shall not (i) deposit
(or permit the deposit of) any Shares or New Shares in a voting trust or (ii)
grant any proxy or power of attorney or enter into any voting agreement or
similar agreement in contravention of the obligations of Shareholder under this
Agreement with respect to any of the Shares or New Shares.
3. Proxy. Shareholder hereby revokes all prior proxies or powers of
attorney with respect to any and all of Shareholder's Shares. Through the
Expiration Date, Shareholder hereby constitutes and appoints Teledyne, or any
nominee designated by Teledyne, with the full power of substitution at any time
during the term of this Agreement, as Shareholder's true and lawful attorney and
proxy ("PROXY"), for and in its name, place, and stead, in the Proxy's
discretion, to demand that the Secretary of the Company call a special meeting
of the shareholders of the Company for the purpose of considering any matter
referred to in Article 2 of the Purchase Agreement and to vote each Share held
by Shareholder, as Shareholder's Proxy in respect of any such matter, at every
annual, adjourned or postponed meeting of the shareholders or the Company,
including, without limitation, the right to sign its name as Shareholder (or to
direct the recordowner to sign its name as Shareholder) to any consent,
certificate, or other document relating to the Company that the state of
California might permit or require. THE FOREGOING PROXY AND POWER OF ATTORNEY
ARE IRREVOCABLE AND COUPLED WITH AN INTEREST THROUGHOUT THE TERM OF THIS
AGREEMENT.
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4. Agreement to Vote Shares. During the period from the date of this
Agreement through the Expiration Date, at every meeting of the Shareholders of
the Company called, and at every adjournment or postponement thereof, and on
every action or approval by written consent of the Shareholders of the Company,
Shareholder (in his, her or its capacity as such) shall cause the Shares and any
New Shares to be voted (a) in favor of approval of the Purchase Agreement and
the Transactions; and (b) unless the Purchase Agreement has been terminated by
Buyer, against any Superior Proposal or against any proposal which would result
in a breach of any covenant, representation or warranty or any other agreement
of the Company under the Purchase Agreement or could reasonably be expected to
result in any breach of the Company's obligations under the Purchase Agreement.
5. No Solicitation. Shareholder covenants and agrees that, during the
term of this Agreement, it shall not, directly or indirectly, solicit, initiate,
knowingly encourage, or take any other action designed to facilitate any
inquiries or the making or any proposal from any person (other than from
Teledyne) relating to any transaction that constitutes a Superior Proposal.
Shareholder further covenants and agrees that it shall not participate in any
discussions or negotiations (except with Teledyne) regarding, or furnish to any
person (other than Teledyne) any information with respect to, or otherwise
cooperate in any way with, or assist or participate in or facilitate or
encourage, any effort or attempt by any person (other than Teledyne) to make or
effect any transaction that may constitute a Superior Proposal. Shareholder
immediately shall cease and cause to be terminated any existing discussions or
negotiations or Shareholder and Shareholder's agents or their representatives
with any person (other than Teledyne) with respect to any of the foregoing.
6. Representations and Warranties of Shareholder. Shareholder hereby
represents and warrants to Teledyne as follows:
(a) Shareholder is the beneficial owner and record holder of the
shares of the Company and the options, warrants and rights to purchase shares of
the Company indicated on the signature page of this Agreement, free and clear of
any liens, claims, options, rights of first refusal, co-sale rights, charges or
other encumbrances that, in each case, would deprive Teledyne of the benefits of
this Agreement. Shareholder does not beneficially own any securities of the
Company other than the shares of the Company and options and warrants to
purchase shares of the Company indicated on the signature page of this
Agreement.
(b) Shareholder has full power and authority to make, enter into
and carry out the terms of this Agreement and the Proxy. Shareholder has
identified on the signature page of this Agreement any nominee or agent or other
Person in whose name are held shares of the Company beneficially owned by
Shareholder, and contact information relating to such Person. This Agreement and
the Proxy have been duly executed and delivered by Shareholder and constitute
legal, valid and binding obligations of Shareholder, enforceable against
Shareholder in accordance with their terms, subject to (i) laws of general
application relating to bankruptcy, insolvency and the relief of debtors,
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and (ii) rules of law governing specific performance, injunctive relief and
other equitable remedies.
(c) The execution and delivery of this Agreement and the Proxy by
Shareholder do not, and the performance of this Agreement and the Proxy by
Shareholder will not: (i) conflict with or violate any law, rule, regulation,
order, decree or judgment applicable to Shareholder or by which it or any of its
properties is or may be bound or affected; or (ii) result in or constitute (with
or without notice or lapse of time) any breach of or default under, or give to
any other Person (with or without notice or lapse of time) any right of
termination, amendment, acceleration or cancellation of, or result (with or
without notice or lapse of time) in the creation of any encumbrance or
restriction on any of the Shares or New Shares pursuant to, any contract to
which Shareholder is a party or by which Shareholder or any of his affiliates or
properties is or may be bound or affected. The execution and delivery of this
Agreement and the Proxy by Shareholder do not, and the performance of this
Agreement and the Proxy by Shareholder will not, require any consent or approval
of any Person.
(d) None of the information relating to the Shareholder provided
in writing to the Company by or on behalf or the Shareholder specifically for
inclusion in the Proxy Statement will, at the times the Proxy Statement is filed
with the U.S. Securities and Exchange Commission or is first published, sent or
given to shareholders of the Company or at the time of the special meeting of
shareholders to consider the Transactions, contain any untrue statement of a
material fact or omit to state any material fact required to be stated therein
or necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading.
7. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
8. Miscellaneous.
(a) Voluntary Execution of Agreement. This Agreement is executed
voluntarily and without any duress or undue influence on the part or behalf of
the parties hereto. The parties acknowledge that: (i) they have read this
Agreement; (ii) they have been represented in the preparation, negotiation, and
execution of this Agreement by legal counsel of their own choice or that they
have voluntarily declined to seek such counsel; (iii) they understand the terms
and consequences of this Agreement; and (iv) they are fully aware of the legal
and binding effect of this Agreement.
(b) Severability. If any term, provision, covenant or restriction
of this Agreement or the Proxy 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.
(c) 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
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their respective successors and permitted assigns, but, except as otherwise
specifically provided herein or in the Purchase Agreement, 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. Shareholder agrees that this Agreement and the obligations hereunder
shall attach to Shareholder's Shares and shall be binding upon any Person to
which legal or beneficial ownership of such Shares shall pass, whether by
operation of law or otherwise. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement.
(d) 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.
(e) Notices. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice); provided, however,
that notices sent by mail will not be deemed given until received:
(i) If to Teledyne:
Teledyne Wireless, Inc.
c/o Teledyne Technologies Incorporated
00000 Xxxx Xxxxxxx Xxxxxxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
With a copy (which shall not constitute notice) to:
XxXxxxx Xxxxx LLP
Dominion Tower
000 Xxxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxx, XX 00000-0000
Attention: Xxxxx Xxxxxxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
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(ii) If to Shareholder: To the address for notice set
forth on the signature page hereof.
With a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxx, Esq.
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
(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) Specific Performance. The parties hereto acknowledge that
irreparable damage would occur in the event that any of the provisions of this
Agreement were not performed in accordance with their specific terms or were
otherwise breached. Accordingly, the parties hereto agree that an aggrieved
party shall be entitled to injunctive relief to prevent breaches of this
Agreement and to enforce specifically the terms and provisions hereof in any
court having jurisdiction, this being in addition to any other right or remedy
to which such party may be entitled under this Agreement at law or in equity.
(h) 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.
(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.
(k) Facsimile Execution. A facsimile, telecopy or other
reproduction of this Agreement may be executed by one or more parties hereto,
and an executed copy of this Agreement may be delivered by one or more parties
hereto by facsimile or similar electronic transmission device pursuant to which
the signature of or on behalf of such party can be seen, and such execution and
delivery shall be considered valid, binding and effective for all purposes. At
the request of any party hereto, all parties hereto agree to execute an original
of this Agreement as well as any facsimile, telecopy or other reproduction
hereof.
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(l) Permitted Activities. Nothing in this Agreement shall be
construed to require Shareholder to exercise any option, warrant or other right
to acquire shares of the Company, and nothing in this Agreement shall be
construed to prohibit Shareholder from engaging in a net exercise of any option,
warrant or other right to acquire shares of the Company (if the contractual
terms of such option, warrant, or other right currently permit such a net
exercise).
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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.
TELEDYNE WIRELESS, INC. SHAREHOLDER
By: ________________________________ By: ___________________________________
Name: ______________________________ Name: _________________________________
Title: _____________________________ Title: ________________________________
_______________________________________
_______________________________________
Address
_______________________________________
Telephone No.
_______________________________________
Facsimile No.
Shares beneficially owned:
__________________Shares of the Company
__________________Shares of the Company
issuable upon exercise of outstanding
Company Options or warrants
VOTING AGREEMENT
SPOUSAL CONSENT
I,______________ , spouse of [Name of Shareholder] ("SHAREHOLDER"), have
read and approve of the foregoing Voting Agreement, dated as of July __, 2004,
(the "AGREEMENT"), by and between my spouse and Teledyne Wireless, Inc., a
Delaware corporation. In consideration of Shareholder's agreement to vote the
Shares and the New Shares (each as defined in the Agreement) in accordance with
the terms of the Agreement, I hereby appoint Shareholder as my attorney-in-fact
with respect to any obligations under the Agreement, and agree to be bound by
the provisions of the Agreement insofar as I may have rights in any Shares or
New Shares under the community property laws of the State of California, or
under similar laws relating to marital property in effect in the state of our
residence as of the date of the signing of the foregoing Agreement.
Dated: July __, 2004
"SPOUSE OF SHAREHOLDER"
_______________________________________
(Signature)
_______________________________________
