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VOTING AGREEMENT
This Voting Agreement (the "agreement") is made and entered into as of
May 3, 1998, by and between Xxxxxx Instrument Corporation, an Indiana
corporation ("Xxxxxx"), and the undersigned stockholder (the "Stockholder") of
Electronic Designs, Inc., a Delaware corporation (the "Company").
RECITALS
A. Concurrently with the execution of this Agreement, Xxxxxx, the
Company and Acquisition Subsidiary, a Delaware corporation and a wholly-owned
subsidiary of Xxxxxx ("Sub"), have entered into an Agreement and Plan of Merger
(the "Merger Agreement") which provides for the merger (the "merger") of Sub
with and into the Company. Pursuant to the Merger, shares of common stock of
the Company will be converted into common stock of Xxxxxx 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 common stock,
stated value $.10 per share, of the Company as is indicated on the final page
of this Agreement (the "Shares").
X. Xxxxxx 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 hereunder 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 in a manner so as to facilitate consummation of
the Merger, as provided herein.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Other than as provided
herein, until the Expiration Date, Stockholder shall not hereafter (a) sell,
tender, transfer, pledge, encumber, assign or otherwise dispose of any of the
Shares or New Shares (as defined in Section 1.2 below), (b) deposit any Shares
or New Shares into a voting trust or enter into a voting agreement or
arrangement with respect to such Shares or New Shares or grant any proxy or
power of attorney with respect thereto, (c) enter into any contract, option or
other arrangement or undertaking with respect to the direct or indirect sale,
transfer, pledge, encumbrance, assignment or other disposition of any Shares or
New Shares, or (d) take any action that would make any representation or
warranty of Stockholder contained herein untrue or incorrect or have the effect
of preventing or disabling Stockholder from performing Stockholder's
obligations under this Agreement. As used herein, the term "Expiration Date"
shall mean the earlier to occur of (i) the Effective Time (as defined in the
Merger Agreement); and (ii) such date and time as the Merger Agreement shall be
terminated pursuant to Article VII thereof.
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1.2 Additional Purchases. Stockholder agrees that any
shares of 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 Company called with respect to any of the following
matters, 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 matters, Stockholder shall vote the Shares and any New Shares: (i) in
favor of approval of the Merger Agreement and the Merger and any matter
necessary for consummation of the Merger; (ii) against (x) approval of any Echo
Takeover Proposal (as defined in the Merger Agreement) and (y) any proposal for
any action or agreement that would result in a breach of any covenant,
representation or warranty or any other obligation or agreement of the Company
under the Merger Agreement or which could result in any of the conditions of
the Company's obligations under the Merger Agreement not being fulfilled, and
(z) any action which could reasonably be expected to impede, interfere with,
delay, postpone or materially adversely affect consummation of the transactions
contemplated by the Merger Agreement; and (iii) in favor of any other matter
necessary for consummation of the transactions contemplated by the Merger
Agreement which is considered at any such meeting of stockholders or in such
consent, and in connection therewith to execute any documents which are
necessary or appropriate in order to effectuate the foregoing or, at the
request of Xxxxxx, to permit Xxxxxx to vote such Shares and New Shares
directly.
3. Irrevocable Proxy. By execution of this Agreement,
Stockholder does hereby appoint and constitute Xxxxxx, until the Expiration
Date, with full power of substitution and resubstitution, as Stockholder's true
and lawful attorney and irrevocable proxy, to the full extent of the
undersigned's rights with respect to the Shares and any New Shares, to vote
each of such Shares and New Shares solely with respect to the matters set forth
in Section 2 hereof. Stockholder intends this proxy to be irrevocable and
coupled with an interest hereafter until the Expiration Date and hereby revokes
any proxy previously granted by Stockholder with respect to the Shares.
4. Representations, Warranties and Covenants of Stockholder.
Stockholder hereby represents, warrants and covenants to Xxxxxx as follows:
4.1 Due Authority. Stockholder has full power, corporate
or otherwise, and authority to execute and deliver this Agreement and to
perform its obligations hereunder. This Agreement has been duly executed and
delivered by or on behalf of Stockholder and constitutes a legal, valid and
binding obligation of Stockholder, enforceable against Stockholder in
accordance with its terms.
4.2 No Conflict; Consents. (a) The execution and
delivery of this Agreement by Stockholder do not, and the performance by
Stockholder of the obligations under this
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Agreement and the compliance by Stockholder with any provisions hereof do not
and will not, (i) conflict with or violate any law, statute, rule, regulation,
order, writ, judgment or decree applicable to Stockholder or the Shares, (ii)
conflict with or violate Stockholder's charter, bylaws, partnership agreement
or other organizational documents, if applicable, or (iii) result in any breach
of or constitute a default (or an event that with notice or lapse of time or
both would become a default) under, or give to others any rights of
termination, amendment, acceleration or cancellation of, or result in the
creation of a lien or encumbrance on any of the Shares pursuant to, any note,
bond, mortgage, indenture, contract, agreement, lease, license, permit,
franchise or other instrument or obligation to which Stockholder is a party or
by which Stockholder or the Shares are bound.
(b) The execution and delivery of this Agreement by
Stockholder do not, and the performance of this Agreement by Stockholder will
not, require any consent, approval, authorization or permit of, or filing with
or notification to, any governmental or regulatory authority by Stockholder
except for applicable requirements, if any, of the Exchange Act, and except
where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, could not prevent or delay
the performance by Stockholder of his or her obligations under this Agreement
in any material respect.
4.3 Ownership of Shares. Stockholder (i) is the
beneficial owner of the Shares, which at the date hereof are, and at all times
up until the Expiration Date will be, free and clear of any liens, claims,
options, charges, proxies or voting restrictions or other encumbrances and (ii)
does not beneficially own any shares of capital stock of the Company other than
the Shares.
4.4 No Solicitations. Hereafter until the Expiration
Date, Stockholder shall not, nor, to the extent applicable to Stockholder,
shall it permit any of its affiliates to, nor shall it authorize any partner,
officer, director, advisor or representative of, Stockholder or any of its
affiliates to, (i) solicit, initiate or knowingly encourage the submission of,
any inquiries, proposals or offers from any person relating to a Echo Takeover
Proposal, (ii) enter into any agreement with respect to a Echo Takeover
Proposal, (iii) solicit proxies or become a "participant" in a "solicitation"
(as such terms are defined in Regulation 14A under the Exchange Act) with
respect to a Echo Takeover 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, (iv) initiate a
stockholders' vote or action by consent of the Company's stockholders with
respect to a Echo Takeover Proposal, or (v) 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 that takes any action in support of a Echo
Takeover Proposal.
5. No Limitation on Discretion as Director. Notwithstanding
anything herein to the contrary, the covenants and agreements set forth herein
shall not prevent Stockholder or its representatives or designees who are
serving on the Board of Directors of the Company from exercising its or their
duties and obligations as a Director of the Company or otherwise taking any
action, subject to the applicable provisions of the Merger Agreement, while
acting in such capacity as a director of the Company.
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6. Additional Documents. Stockholder hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Xxxxxx to carry out the intent of the Agreement.
7. Consent and Waiver. Stockholder hereby gives any consents or
waivers 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.
8. Termination. This Agreement shall terminate and shall have no
further force or effect as of the Expiration Date.
9. Miscellaneous.
9.1 Severability. If any term or other provision of this
Agreement is determined to be invalid, illegal or incapable of being enforced
by any rule of law or public policy, all other conditions and provisions of
this Agreement shall nevertheless remain in full force and effect so long as
the economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such
determination that any term or other provision is invalid, illegal or incapable
of being enforced, the parties hereto shall negotiate in good faith to modify
this Agreement so as to effect the original intent of the parties as closely as
possible to the fullest extent permitted by applicable law in an acceptable
manner to the end that the transactions contemplated hereby are fulfilled to
the extent possible.
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 the prior written consent of the other.
9.3 Amendments and Modifications. 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 agree that irreparable damage would occur in the event any provision of
this Agreement was not performed in accordance with the terms hereof or was
otherwise breached. It is accordingly agreed that the parties shall be
entitled to specific relief hereunder, including, without limitation, an
injunction or injunctions to prevent and enjoin breaches of the provisions of
this Agreement and to enforce specifically the terms and provisions hereof, in
any state or federal court in the State of Delaware, in addition to any other
remedy to which they may be entitled at law or in equity. Any requirements for
the securing or posting of any bond with respect to any such remedy are hereby
waived.
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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 (with confirmation of receipt), 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 Xxxxxx: Xxxxxx Instrument Corporation
0000 Xxxx Xxxxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxx Xxxxxxxxxx
with a copy to: Xxxxx Xxxx LLP
000 Xxxxxxxxxx Xxxxxx, X.X.
Xxxxxxxxxx, XX 00000
Attention: XxXxxx Xxxxxx, Esq.
If to the Stockholder: To the address for notice set forth
on the last page hereof
with a copy to: Xxxxxxx, Procter & Xxxx XXX
Xxxxxxxx Xxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxx, P.C.
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
be effective upon receipt.
9.6 Governing Law; Jurisdiction and Venue. This
Agreement shall be governed by, and construed in accordance with, the internal
laws of the State of Delaware without regard to its rules of conflict of laws.
The parties hereto hereby irrevocably and unconditionally consent to and submit
to the exclusive jurisdiction of the courts of the State of Delaware and of the
United States of America located in such state (the "Delaware Courts") for any
litigation arising out of or relating to this Agreement and the transactions
contemplated hereby (and agree not to commence any litigation relating thereto
except in such courts), waive any objection to the laying of venue of any such
litigation in the Delaware Courts and agree not to plead or claim in any
Delaware Court that such litigation brought therein has been brought in any
inconvenient forum.
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.
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9.9 Effect of Headings. The section headings herein are
for convenience only and shall not affect the construction of interpretation of
this Agreement.
9.10 No Agreement Until Executed. Irrespective of
negotiations among the parties or the exchanging of drafts of this Agreement,
this Agreement shall not constitute or be deemed to evidence a contract,
agreement, arrangement or understanding between the parties hereto unless and
until (i) the Board of Directors of the Company has approved, for purposes of
Section 203 of the Delaware General Corporation Law and any applicable
provision of the Company's Articles of Incorporation, the possible acquisition
of the Shares by Xxxxxx pursuant to this Agreement, (ii) the Merger Agreement
is executed by all parties thereto, and (iii) this Agreement is executed by all
parties hereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to
be duly executed on the date and year first above written.
XXXXXX INSTRUMENT CORPORATION
By: /s/ Xxxxx Xxxxxxxxxx
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Name: Xxxxx Xxxxxxxxxx
Title: President and Chief Executive Officer
STOCKHOLDER:
TECHNOLOGY FUNDING PARTNERS III, L.P.
By: Technology Funding Inc., its
Managing General Partner
By: /s/ Xxxxxx X. Toy
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Name: Xxxxxx X. Toy
Title: Vice President
Stockholder's Address for Notice:
0000 Xxxxxxx xx xxx Xxxxxx, Xxxxx 000
Xxx Xxxxx, Xxxxxxxxxx 00000
Shares beneficially owned:
680,477 shares of Common Stock of
Electronic Designs, Inc.
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