VOTING AGREEMENT
EXHIBIT
7
EXECUTION VERSION
This Voting Agreement (“Voting Agreement”) is entered into as of August 12,
2007, by and between RF Micro Devices, Inc., a North Carolina corporation
(“Parent”), and Xxxxxx X. Xxxxxxxx (“Stockholder”).
Recitals
A. Stockholder is a holder of record and the “beneficial owner” (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934, as amended) of certain shares of common stock of
Sirenza Microdevices, Inc., a Delaware corporation (the “Company”).
B. Parent, Iceman Acquisition Sub, Inc., a Delaware corporation (“Merger Sub”), and the
Company are entering into an Agreement and Plan of Merger and Reorganization of even date herewith
(the “Merger Agreement”), which provides (subject to the conditions set forth therein) for the
merger of Merger Sub into the Company (the “Merger”). Capitalized terms used but not otherwise
defined in this Voting Agreement have the meanings assigned to such terms in the Merger Agreement.
C. In the Merger, each outstanding share of common stock of the Company is to be converted
into the right to receive a combination of cash and shares of Parent Common Stock, as provided in
the Merger Agreement.
D. Stockholder is entering into this Voting Agreement in order to induce Parent to enter into
the Merger Agreement and cause the Merger to be consummated.
Agreement
The parties to this Voting Agreement, intending to be legally bound, agree as follows:
SECTION
1. Certain Definitions
For purposes of this Voting Agreement:
(a) “Expiration Date” shall mean the earlier of: (i) the date on which the Merger Agreement is
validly terminated; or (ii) the date upon which the Merger becomes effective.
(b) Stockholder shall be deemed to “Own” or to have acquired “Ownership” of a security if
Stockholder: (i) is the record owner of such security; or (ii) is the “beneficial owner” (within
the meaning of Rule 13d-3 under the Exchange Act) of such security.
(c) “Subject Securities” shall mean: (i) all securities of the Company (including all shares
of Company Common Stock and all options, warrants and other rights to acquire
shares of Company Common Stock) Owned by Stockholder as of the date of this Voting
Agreement;
and (ii) all additional securities of the Company (including all additional shares of Company
Common Stock and all additional options, warrants and other rights to acquire shares of Company
Common Stock) of which Stockholder acquires Ownership during the Voting Period.
(d) A Person shall be deemed to have a 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 to any Person other than Parent; (ii)
enters into an agreement or commitment contemplating the possible sale of, pledge of, encumbrance
of, grant of an option with respect to, transfer of or disposition of such security or any interest
therein to any Person other than Parent; or (iii) reduces such Person’s beneficial ownership of,
interest in or risk relating to such security.
(e) “Voting Period” shall mean the period commencing on the date of this Voting Agreement and
ending on the earlier of: (i) the date on which the Merger Agreement is validly terminated; and
(ii) the date on which a final vote is taken by the stockholders of the Company on a proposal to
adopt the Merger Agreement.
SECTION 2. Transfer of Subject Securities and Voting Rights
2.1 Restriction on Transfer of Subject Securities. Subject to Section 2.3, during the Voting
Period, Stockholder shall not, directly or indirectly, cause or permit any Transfer of any of the
Subject Securities to be effected, other than pursuant to a written plan that meets all of the
requirements of Rule 10b5-1(c) under the Securities Exchange Act of 1934.
2.2 Restriction on Transfer of Voting Rights. During the Voting Period, Stockholder shall
ensure that: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy
is granted, and no voting agreement or similar agreement is entered into, with respect to any of
the Subject Securities.
2.3 Permitted Transfers. Section 2.1 shall not prohibit a transfer of Subject Securities by
Stockholder: (a) if Stockholder is an individual: (i) to any member of Stockholder’s immediate
family; or to a trust for the benefit of Stockholder or any member of Stockholder’s immediate
family; (ii) upon the death of Stockholder; (iii) pursuant to the terms of a trading plan adopted
pursuant to Rule 10b5-1 under the Exchange Act in effect prior to the date hereof; (iv) upon the
vesting of restricted stock awards of Company Common Stock but only to the extent of such
Stockholder’s income or other tax liability with respect to such vested restricted stock awards or
(v) in a Transfer not for value to one or more persons or organizations in an aggregate amount not
exceeding 100,000 shares of Company Common Stock; (b) if Stockholder is a partnership or limited
liability company, (i) to one or more partners or members of Stockholder or to an affiliated
corporation under common control with Stockholder or (ii) in a Transfer not for value to one or
more persons or organizations in an aggregate amount not exceeding 100,000 shares of Company Common
Stock; provided, however, that, except for the transfers listed in Section 2.3(a)(iii) and (iv),
hereof, a transfer referred to in this sentence shall be permitted only if, as a precondition to
such transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to
Parent, to be bound by all of the terms of this Voting Agreement.
2.
SECTION 3. Voting of Shares
3.1 Voting Covenant. Stockholder hereby agrees that, prior to the Expiration Date, at any
meeting of the stockholders of the Company, however called, and in any written action by consent of
stockholders of the Company, unless otherwise directed in writing by Parent, Stockholder shall
cause any issued and outstanding shares of Company Common Stock Owned by Stockholder as of the
record date with respect to such meeting or consent to be voted:
(a) in favor of: (i) the execution and delivery by the Company of the Merger Agreement; (ii)
the adoption of the Merger Agreement; and (iii) each of the other actions contemplated by the
Merger Agreement; and
(b) against the following actions (other than the Merger and the Contemplated Transactions):
(i) any extraordinary corporate transaction, such as a merger, consolidation or other business
combination involving any Acquired Corporation; (ii) any sale, lease, sublease, license, sublicense
or transfer of a material portion of the rights or other assets of any Acquired Corporation; (iii)
any reorganization, recapitalization, dissolution or liquidation of any Acquired Corporation; (iv)
any change in a majority of the board of directors of the Company; (v) any amendment to the
Company’s certificate of incorporation or bylaws; (vi) any material change in the capitalization of
the Company or the Company’s corporate structure; and (vii) any other action which is intended, or
would reasonably be expected, to impede, interfere with, delay, postpone, discourage or adversely
affect the Merger or any of the other Contemplated Transactions.
Prior to the Expiration Date, Stockholder shall not enter into any agreement or understanding with
any Person to vote or give instructions in any manner inconsistent with clause “(a)”, clause “(b)”
or clause “(c)” of the preceding sentence.
3.2 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Voting Agreement: (i) Stockholder shall
deliver to Parent a proxy in the form attached to this Voting Agreement as Exhibit A, which shall
be irrevocable to the fullest extent permitted by law (at all times during the Voting Period) with
respect to the shares referred to therein (the “Proxy”); and (ii) Stockholder shall cause to be
delivered to Parent an additional proxy (in the form attached hereto as Exhibit A) executed on
behalf of the record owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Exchange Act), but not of record, by
Stockholder. Notwithstanding anything else to the contrary contained in this Section 3.2, the Proxy
shall terminate and be revoked (or shall under no circumstances become effective) with respect to
the Subject Securities upon the Expiration Date, without any notice or action by Stockholders or
any other person.
(b) Stockholder shall, at Stockholder’s own expense, perform such further acts and execute
such further proxies and other documents and instruments as may reasonably be required to vest in
Parent the power to carry out and give effect to the provisions of this Voting Agreement.
3.
(c) Stockholder shall not enter into any tender, voting or other agreement, or grant a proxy
or power of attorney, with respect to the Subject Securities that is inconsistent with this Voting
Agreement or otherwise take any other action with respect to the Subject Securities that would in
any way restrict, limit or interfere with the performance of Stockholder’s obligations hereunder or
the transactions contemplated hereby.
SECTION 4. Waiver of Appraisal Rights
Stockholder hereby irrevocably and unconditionally waives, and agrees to cause to be waived
and to prevent the exercise of, any rights of appraisal, any dissenters’ rights and any similar
rights relating to the Merger or any related transaction that Stockholder or any other Person may
have by virtue of, or with respect to, any shares of Company Common Stock Owned by Stockholder.
SECTION 5. STOCKHOLDER CAPACITY.
So long as a Stockholder or a representative of such Stockholder is an officer or director of
the Company, nothing in this Agreement shall be construed as preventing or otherwise affecting any
actions, judgment or decisions taken by such Stockholder in his or her capacity as an officer or
director of the Company or any of its Subsidiaries or from fulfilling the obligations and
responsibilities of such office (including the performance of obligations required by the fiduciary
obligations and responsibilities of such Stockholder acting solely in his or her capacity as an
officer or director), it being agreed and understood that this Agreement shall apply to such
Stockholder solely in his or its capacity as a stockholder.
SECTION
6. Representations and Warranties of Stockholder
Stockholder hereby represents and warrants to Parent as follows:
6.1 Authorization, etc. Stockholder has the absolute and unrestricted power, authority and
capacity to execute and deliver this Voting Agreement and the Proxy and to perform Stockholder’s
obligations hereunder and thereunder. This Voting Agreement and the Proxy have been duly executed
and delivered by Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to: (a) laws of general
application relating to bankruptcy, insolvency and the relief of debtors; and (b) rules of law
governing specific performance, injunctive relief and other equitable remedies. If Stockholder is
a corporation, then Stockholder is a corporation duly organized, validly existing and in good
standing under the laws of the jurisdiction in which it was organized. If Stockholder is a general
or limited partnership, then Stockholder is a partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction in which it was organized. If Stockholder is a
limited liability company, then Stockholder is a limited liability company duly organized, validly
existing and in good standing under the laws of the jurisdiction in which it was organized.
4.
6.2 No Conflicts or Consents.
(a) The execution and delivery of this Voting Agreement and the Proxy by Stockholder do not,
and the performance of this Voting Agreement and the Proxy by Stockholder will not: (i) conflict
with or violate any Legal Requirement or Order applicable to Stockholder or by which Stockholder or
any of Stockholder’s 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 on any of the Subject Securities pursuant to, any Contract to which Stockholder is a
party or by which Stockholder or any of Stockholder’s affiliates or properties is or may be bound
or affected.
(b) The execution and delivery of this Voting Agreement and the Proxy by Stockholder do not,
and the performance of this Voting Agreement and the Proxy by Stockholder will not, require any
Consent of any Person. The execution and delivery of any additional proxy pursuant to Section
3.2(a)(ii) with respect to any shares of Company Common Stock that are owned beneficially but not
of record by Stockholder do not, and the performance of any such additional proxy will not, require
any Consent of any Person.
6.3 Title to Securities. As of the date of this Voting Agreement: (a) Stockholder holds of
record (free and clear of any Encumbrances) the number of outstanding shares of Company Common
Stock set forth under the heading “Shares Held of Record” on the signature page hereof; (b)
Stockholder holds (free and clear of any Encumbrances) the options, warrants and other rights to
acquire shares of Company Common Stock set forth under the heading “Options and Other Rights” on
the signature page hereof; (c) Stockholder Owns the additional securities of the Company set forth
under the heading “Additional Securities Beneficially Owned” on the signature page hereof; and (d)
Stockholder does not directly or indirectly Own any shares of capital stock or other securities of
the Company, or any option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of capital stock or other securities of the Company, other than the shares
and options, warrants and other rights set forth on the signature page hereof.
6.4 Accuracy of Representations. The representations and warranties contained in this Voting
Agreement are accurate in all respects as of the date of this Voting Agreement, and will be
accurate in all respects at all times prior to the Expiration Date as if made as of any such time
or date.
SECTION 7. Miscellaneous
7.1 Stockholder Information. Stockholder hereby agrees to permit Parent and Merger Sub to
publish and disclose in the Form S-4 Registration Statement Stockholder’s identity and ownership of
shares of Company Common Stock and the nature of Stockholder’s commitments, arrangements and
understandings under this Voting Agreement.
7.2 Further Assurances. From time to time and without additional consideration, Stockholder
shall execute and deliver, or cause to be executed and delivered, such additional
5.
transfers, assignments, endorsements, proxies, consents and other instruments, and shall take
such further actions, as Parent may reasonably request for the purpose of carrying out and
furthering the intent of this Voting Agreement.
7.3 Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Voting Agreement shall be paid by the party incurring such costs and expenses.
7.4 Notices. Any notice or other communication under this Voting Agreement shall be in
writing and shall be deemed to have been duly given or made as follows: (a) if sent by registered
or certified mail in the United States return receipt requested, upon receipt; (b) if sent by
nationally recognized overnight air courier (such as DHL or Federal Express), two business days
after mailing; (c) if sent by facsimile transmission before 5:00 p.m., when transmitted and receipt
is confirmed; (d) if sent by facsimile transmission after 5:00 p.m. and receipt is confirmed, on
the following business day; and (e) if otherwise actually personally delivered, when delivered,
provided that such notices, requests, demands and other communications are delivered to the address
set forth below, or to such other address as any party shall provide by like notice to the other
parties to this Voting Agreement:
if to Stockholder:
at the address set forth on the signature page hereof; and
with a copy (which shall not constitute notice) to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx PC
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000
Attn: Xxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx PC
Xxx Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
Xxx Xxxxxx Xxxxxx
Xxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxxx
Facsimile: (000) 000-0000
if to Parent:
RF Micro Devices, Inc.
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
0000 Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
Attn: Xxxxxxx Xxxx
Facsimile: (000) 000-0000
6.
with a copy (which shall not constitute notice) to:
Cooley Godward Kronish llp
5 Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxx, Esq. and Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
5 Palo Alto Square
0000 Xx Xxxxxx Xxxx
Xxxx Xxxx, XX 00000
Attention: Xxxx Xxxx, Esq. and Xxxxx X. Xxxxxx, Esq.
Facsimile: (000) 000-0000
7.5 Severability. Any term or provision of this Voting Agreement that is invalid or
unenforceable in any situation in any jurisdiction shall not affect the validity or enforceability
of the remaining terms and provisions hereof or the validity or enforceability of the offending
term or provision in any other situation or in any other jurisdiction. If the final judgment of a
court of competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination shall have the
power to limit the term or provision, to delete specific words or phrases, or to replace any
invalid or unenforceable term or provision with a term or provision that is valid and enforceable
and that comes closest to expressing the intention of the invalid or unenforceable term or
provision, and this Voting Agreement shall be enforceable as so modified. In the event such court
does not exercise the power granted to it in the prior sentence, the parties hereto agree to
replace such invalid or unenforceable term or provision with a valid and enforceable term or
provision that will achieve, to the extent possible, the economic, business and other purposes of
such invalid or unenforceable term.
7.6 Entire Agreement. This Voting Agreement, the Proxy, the Merger Agreement and any other
documents delivered by the parties in connection herewith constitute the entire agreement between
the parties with respect to the subject matter hereof and thereof and supersede all prior
agreements and understandings between the parties with respect thereto.
7.7 Amendments. This Voting Agreement may not be amended, modified, altered or supplemented
other than by means of a written instrument duly executed and delivered on behalf of Parent and
Stockholder.
7.8 Assignment; Binding Effect; No Third Party Rights. Except as provided herein, neither
this Voting Agreement nor any of the interests or obligations hereunder may be assigned or
delegated by Stockholder, and any attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Subject to the preceding sentence, this Voting Agreement
shall be binding upon Stockholder and Stockholder’s heirs, estate, executors and personal
representatives and Stockholder’s successors and assigns, and shall inure to the benefit of Parent
and its successors and assigns. Without limiting any of the restrictions set forth in Section 2,
Section 3 or elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon any
Person to whom any Subject Securities are transferred. Nothing in this Voting Agreement is
intended to confer on any Person (other than Parent and its successors and assigns) any rights or
remedies of any nature.
7.
7.9 Specific Performance. The parties agree that irreparable damage would occur in the event
that any of the provisions of this Voting Agreement or the Proxy were not performed in accordance
with its specific terms or were otherwise breached. Stockholder agrees that, in the event of any
breach or threatened breach by Stockholder of any covenant or obligation contained in this Voting
Agreement or in the Proxy, Parent shall be entitled (in addition to any other remedy that may be
available to it, including monetary damages) to seek and obtain: (a) a decree or order of specific
performance to enforce the observance and performance of such covenant or obligation; and (b) an
injunction restraining such breach or threatened breach. Stockholder further agrees that neither
Parent nor any other Person shall be required to obtain, furnish or post any bond or similar
instrument in connection with or as a condition to obtaining any remedy referred to in this Section
6.9, and Stockholder irrevocably waives any right he or it may have to require the obtaining,
furnishing or posting of any such bond or similar instrument.
7.10 Non-Exclusivity. The rights and remedies of Parent under this Voting Agreement are not
exclusive of or limited by any other rights or remedies which it may have, whether at law, in
equity, by contract or otherwise, all of which shall be cumulative (and not alternative).
7.11 Governing Law; Jurisdiction; Waiver of Jury Trial. This Voting Agreement shall be
governed by, and construed in accordance with, the laws of the State of Delaware, regardless of the
laws that might otherwise govern under applicable principles of conflicts of laws thereof. In any
action between any of the parties arising out of or relating to this Voting Agreement or any of the
transactions contemplated by this Voting Agreement, each of the parties: (a) irrevocably and
unconditionally consents and submits to the exclusive jurisdiction and venue of the Chancery Court
of the State of Delaware; (b) irrevocably waives the right to trial by jury; and (c) irrevocably
consents to service of process by first class certified mail, return receipt requested, postage
prepared, to the address at which Stockholder or Parent, as the case may be, is to receive notice
in accordance with Section 6.4.
7.12 Counterparts; Exchanges by Facsimile. This Voting Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original, but all such
counterparts shall together constitute one and the same instrument. The exchange of a fully
executed Voting Agreement (in counterparts or otherwise) by facsimile shall be sufficient to bind
the parties to the terms and conditions of this Voting Agreement.
7.13 Captions. The captions contained in this Voting Agreement are for convenience of
reference only, shall not be deemed to be a part of this Voting Agreement and shall not be referred
to in connection with the construction or interpretation of this Voting Agreement.
7.14 Waiver. No failure on the part of Parent to exercise any power, right, privilege or
remedy under this Voting Agreement, and no delay on the part of Parent in exercising any power,
right, privilege or remedy under this Voting Agreement, shall operate as a waiver of such power,
right, privilege or remedy; and no single or partial exercise of any such power, right, privilege
or remedy shall preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. Parent shall not be deemed to have waived any claim available to Parent
arising out of this Voting Agreement, or any power, right, privilege or remedy of Parent
8.
under this Voting Agreement, unless the waiver of such claim, power, right, privilege or
remedy is expressly set forth in a written instrument duly executed and delivered on behalf of
Parent; and any such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
7.15 Independence of Obligations. The covenants and obligations of Stockholder set forth in
this Voting Agreement shall be construed as independent of any other Contract between Stockholder,
on the one hand, and the Company or Parent, on the other. The existence of any claim or cause of
action by Stockholder against the Company or Parent shall not constitute a defense to the
enforcement of any of such covenants or obligations against Stockholder. Nothing in this Voting
Agreement shall limit any of the rights or remedies of Parent under the Merger Agreement, or any of
the rights or remedies of Parent or any of the obligations of Stockholder under any agreement
between Stockholder and Parent or any certificate or instrument executed by Stockholder in favor of
Parent; and nothing in the Merger Agreement or in any other such agreement, certificate or
instrument, shall limit any of the rights or remedies of Parent or any of the obligations of
Stockholder under this Voting Agreement.
7.16 Construction.
(a) For purposes of this Voting Agreement, whenever the context requires: the singular number
shall include the plural, and vice versa; the masculine gender shall include the feminine and
neuter genders; the feminine gender shall include the masculine and neuter genders; and the neuter
gender shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect that ambiguities are to be
resolved against the drafting party shall not be applied in the construction or interpretation of
this Voting Agreement.
(c) As used in this Voting Agreement, the words “include” and “including,” and variations
thereof, shall not be deemed to be terms of limitation, but rather shall be deemed to be followed
by the words “without limitation.”
(d) Except as otherwise indicated, all references in this Voting Agreement to “Sections” and
“Exhibits” are intended to refer to Sections of this Voting Agreement and Exhibits to this Voting
Agreement.
[Remainder of page intentionally left blank.]
9.
In Witness Whereof, the parties have caused this Voting Agreement to be executed as
of the date first written above.
| RF Micro Devices, Inc. | ||||||
| /s/ Xxxxxxx X. Xxxx | ||||||
| By Xxxxxxx X. Xxxx | ||||||
| VP Corporate Treasurer | ||||||
| Title | ||||||
| Stockholder | ||||||
| /s/ Xxxxxx X. Xxxxxxxx | ||||||
| Signature | ||||||
| Xxxxxx X. Xxxxxxxx | ||||||
| Printed Name | ||||||
| Address: | 0000 Xxxxxxxxx Xxxxx | |||||
| Xxx Xxxx, XX 00000 | ||||||
| Facsimile: | 000-000-0000 | |||||
| Additional Securities | ||||
| Shares Held of Record | Options and Other Rights | Beneficially Owned | ||
| 34,563 | 0 | 1,000 |
Signature Page to Voting Agreement
Exhibit A
Form of Irrevocable Proxy
Proxy
Irrevocable Proxy
The undersigned stockholder (the “Stockholder”) of Sirenza Microdevices, Inc., a
Delaware corporation (the “Company”), hereby irrevocably (to the fullest extent permitted by law)
appoints and constitutes Xxx Xxxxxxxxxxx, Xxxxx Xxxx and RF Micro Devices, Inc., a North
Carolina corporation (“Parent”), and each of them, the attorneys and proxies of the Stockholder,
with full power of substitution and resubstitution, to the full extent of the Stockholder’s rights
with respect to (i) the outstanding shares of capital stock of the Company owned of record by the
Stockholder as of the date of this proxy, which shares are specified on the final page of this
proxy, and (ii) any and all other shares of capital stock of the Company which the Stockholder may
acquire on or after the date hereof.. (The shares of the capital stock of the Company referred to
in clauses “(i)” and “(ii)” of the immediately preceding sentence are collectively referred to as
the “Shares.”) Upon the execution of this proxy, all prior proxies given by the Stockholder with
respect to any of the Shares are hereby revoked, and the Stockholder agrees that no subsequent
proxies will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in connection with, and
as security for, the Voting Agreement, dated as of the date hereof, between Parent and the
Stockholder (the “Voting Agreement”), and is granted in consideration of Parent entering into the
Agreement and Plan of Merger and Reorganization, dated as of the date hereof, among Parent, Iceman
Acquisition Sub, Inc., a wholly-owned subsidiary of Parent, and the Company (the “Merger
Agreement”). This proxy will terminate on the Expiration Date (as defined in the Voting
Agreement).
Prior to the Expiration Date, the attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote any Shares owned by the undersigned, at any meeting of the
stockholders of the Company, however called, and in connection with any written action by consent
of stockholders of the Company:
(a) in favor of: (i) the execution and delivery by the Company of the Merger Agreement;
(ii) the adoption of the Merger Agreement; and (iii) each of the other actions contemplated
by the Merger Agreement; and
(b) against the following actions (other than the Contemplated Transactions (as defined
in the Merger Agreement)): (i) any extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving any Acquired Corporation (as defined
in the Merger Agreement); (ii) any sale, lease, sublease, license, sublicense or transfer of
a material portion of the rights or other assets of any Acquired Corporation; (iii) any
reorganization, recapitalization, dissolution or liquidation of any Acquired Corporation;
(iv) any change in a majority of the board of directors of the Company; (v) any amendment to
the Company’s certificate of incorporation or bylaws; (vi) any material change in the
capitalization of the Company or the Company’s corporate structure; and (vii) any other
action which is intended, or would reasonably be expected to impede, interfere with, delay,
postpone, discourage or adversely affect the Contemplated Transactions.
Proxy
The Stockholder may vote the Shares on all other matters not referred to in this proxy, and
the attorneys and proxies named above may not exercise this proxy with respect to such other
matters.
This proxy shall be binding upon the heirs, estate, executors, personal representatives,
successors and assigns of the Stockholder (including any transferee of any of the Shares).
Any term or provision of this proxy that is invalid or unenforceable in any situation in any
jurisdiction shall not affect the validity or enforceability of the remaining terms and provisions
hereof or the validity or enforceability of the offending term or provision in any other situation
or in any other jurisdiction. If the final judgment of a court of competent jurisdiction declares
that any term or provision hereof is invalid or unenforceable, the Stockholder agrees that the
court making such determination shall have the power to limit the term or provision, to delete
specific words or phrases, or to replace any invalid or unenforceable term or provision with a term
or provision that is valid and enforceable and that comes closest to expressing the intention of
the invalid or unenforceable term or provision, and this proxy shall be enforceable as so modified.
In the event such court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the economic, business and
other purposes of such invalid or unenforceable term.
Dated: August 12, 2007
| Stockholder | ||||
| /s/ Xxxxxx X. Xxxxxxxx | ||||
| Signature | ||||
| Xxxxxx X. Xxxxxxxx | ||||
| Printed Name | ||||
| Number of shares of common stock of the | ||||||
| Company owned of record as of the date | ||||||
| of this proxy: | ||||||
| 34,563 | ||||||
Proxy