Exhibit 2.3
SECONDARY VOTING AGREEMENT
AGREEMENT made as of this 21st day of October, 2003 by and among Vision
Technologies Kinetics, Inc., a Delaware corporation ("PARENT"), VTK Merger
Subsidiary Corporation, an Alabama corporation ("MERGER SUBSIDIARY"), Miltope
Group Inc., a Delaware corporation (the "COMPANY"), and Great Universal
Incorporated, a Delaware corporation (the "STOCKHOLDER").
W I T N E S S E T H:
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WHEREAS, concurrently with the execution and delivery of this Agreement,
Parent, Merger Subsidiary, the Company and Miltope Corporation, an Alabama
corporation and wholly-owned subsidiary of the Company (the "DSS CLEARED
COMPANY"), have entered into an Agreement and Plan of Merger (as such agreement
may be amended from time to time, the "MERGER AGREEMENT"), pursuant to which the
Company and Merger Subsidiary will merge with and into the DSS Cleared Company
(the "MERGERS"); and
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent has required that the Stockholder agree, and the Stockholder
has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
representations, warranties, covenants and agreements herein set forth, the
parties hereto intending to be legally bound hereby agree as follows:
1. DEFINITIONS. For purposes of this Agreement:
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned by all other Persons with whom such Person would constitute a "group"
within the meaning of Section 13(d) of the Exchange Act.
(b) "COMPANY COMMON STOCK" shall mean at any time the Common
Stock, $0.01 par value per share, of the Company.
(c) "PROHIBITED ACT" shall have the meaning set forth in
Section 2(a).
(d) "SUBJECT SHARES" shall mean 1,577,560 shares of Company
Common Stock held by the Stockholder or its affiliates as set forth opposite the
Stockholder's name on Schedule I hereto, together with any shares acquired by
the Stockholder or its affiliates in any
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capacity after the date hereof and prior to the termination of the Agreement,
whether upon exercise of Options or by means of purchase, dividend, distribution
or otherwise, all of which are Beneficially Owned by the Stockholder.
Capitalized terms used and not otherwise defined herein have the respective
meanings ascribed to them in the Merger Agreement.
2. AGREEMENTS.
(a) VOTING AGREEMENT. The Stockholder shall, at any meeting
(whether annual or special and whether or not an adjourned or postponed meeting)
of the holders of Company Common Stock, however called, or in connection with
any written consent of the holders of Company Common Stock, vote (or cause to be
voted) the Subject Shares, (i) in favor of the Mergers, the execution, delivery
and performance by the Company of the Merger Agreement and the approval and
adoption of the terms thereof and each of the other actions contemplated by the
Merger Agreement and this Agreement and any actions required in furtherance
thereof and hereof, and (ii) against any Takeover Proposal (including any
Superior Proposal) and against any action or agreement that could reasonably be
expected to: (A) impede, frustrate, prevent, nullify or adversely affect, or
delay the consummation of the transactions contemplated under, this Agreement or
the Merger Agreement, (B) result in the breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company,
the DSS Cleared Company, Parent or the Merger Subsidiary under the Merger
Agreement or (C) result in any of the conditions set forth in Article VII of the
Merger Agreement not being fulfilled (collectively, the actions referred to in
(A) through (C), "PROHIBITED ACTS").
(b) NO INCONSISTENT AGREEMENTS. The Stockholder hereby
covenants and agrees that, except as contemplated by this Agreement and the
Merger Agreement, it shall not (i) transfer (which term shall include, without
limitation, any sale, gift, pledge or other disposition), or consent to any
transfer of, any or all of the Subject Shares, any Options Beneficially Owned by
the Stockholder or any interest therein, (ii) enter into any contract, option or
other agreement or understanding with respect to any transfer of any or all of
such Subject Shares, Options or any interest therein, (iii) grant any proxy,
power-of-attorney or other authorization in or with respect to such Subject
Shares or Options, (iv) deposit such Subject Shares of Options into a voting
trust or enter into a voting agreement or arrangement with respect to such
Subject Shares or Options, or (v) take any action that constitutes or results in
a Prohibited Act.
(c) GRANT OF IRREVOCABLE PROXY; APPOINTMENT OF PROXY.
(i) The Stockholder hereby irrevocably grants to, and
appoints, Parent and Merger Subsidiary, or either of them, in their respective
capacities as officers of Parent, and any individual who shall hereafter succeed
to any such office of Parent, and each of them individually, the Stockholder's
proxy and attorney-in-fact (with full power of substitution), for and in the
name, place and stead of the Stockholder, to vote the Subject Shares, or grant a
consent or approval in respect of the Subject Shares in favor of any or all of
the Mergers and the transactions contemplated by the Merger Agreement, and
against any Takeover Proposal (including any Superior Proposal) or action or
agreement that constitutes or results in a
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Prohibited Act. In addition, the Stockholder further agrees that, if the Board
of Directors fails or refuses to submit the Merger Agreement and the Mergers to
the stockholders of the Company as required under the Merger Agreement, then the
proxy granted hereby shall include the ability to vote all Subject Shares held
of record or Beneficially Owned by it to (A) call or cause to be called a
special meeting of stockholders of the Company to submit the Merger Agreement
and the Mergers to the stockholders of the Company for a vote, and (B) approve
all or any actions incident to the Merger Agreement and the Mergers or the other
matters referred to in this Section 3 by stockholder written consent.
(ii) The Stockholder represents that any proxies
heretofore given in respect of the Subject Shares are not irrevocable, and that
any such proxies are hereby revoked.
(iii) The Stockholder understands and acknowledges that
Parent is entering into the Merger Agreement in reliance upon the Stockholder's
execution and delivery of this Agreement. The Stockholder hereby affirms that
the irrevocable proxy set forth in this Section 2(c) is given in connection with
the execution of the Merger Agreement, and that such irrevocable proxy is given
to secure the performance of the duties of the Stockholder under this Agreement.
The Stockholder hereby further affirms that the irrevocable proxy is coupled
with an interest and may under no circumstances be revoked. The Stockholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the Delaware Law.
(d) NO SOLICITATION. The Stockholder hereby agrees, in the
capacity of stockholder or otherwise, that neither the Stockholder nor any of
its subsidiaries or affiliates shall (and the Stockholder shall use its best
efforts to cause its officers, directors, employees, representatives and agents,
including, but not limited to, investment bankers, attorneys and accountants,
not to), directly or indirectly, encourage, solicit, participate in or initiate
discussions or negotiations with, or provide any information to, any Person or
group (other than Parent, any of its affiliates or representatives) concerning
any Takeover Proposal or take any other action which the Company would be
prohibited from taking under Sections 5.2 and 5.3(a) of the Merger Agreement.
The Stockholder will, and will cause its subsidiaries, affiliates and the
respective officers, directors, employees, representatives, investment bankers,
attorneys, accountants and other agents of the Stockholder and its subsidiaries
and affiliates to, (i) immediately cease any existing activities, discussion or
negotiations with any parties conducted heretofore with respect to any
possibility of consideration of making a Takeover Proposal, (ii) immediately
request that all confidential information furnished on behalf of the Stockholder
with respect thereto be returned and (iii) promptly (and in any event within one
(1) business day) notify Parent in writing if any inquiries or proposals are
received by, any information is requested from, or any negotiations or
discussions are sought to be initiated or continued with the Stockholder in
connection with any Takeover Proposal including the identity of the Person and
its affiliates making such proposal, inquiry or offer and any information
requested from it or of any negotiations or discussions being sought to be
initiated with it, and shall furnish to Parent a written summary of the material
terms and conditions of any such proposal, inquiry or offer. The Stockholder
agrees that it shall keep Parent fully informed promptly of any developments in
the status and terms of any of the foregoing.
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(e) WAIVER OF APPRAISAL RIGHTS. The Stockholder hereby waives
any rights of appraisal or rights of dissent from the Mergers that the
Stockholder may have.
(f) PROXY STATEMENT. The Stockholder hereby permits Parent and
Merger Subsidiary to publish and disclose in the Proxy Statement (including all
documents and schedules filed with the SEC), its identity and ownership of the
Subject Shares and the nature of its commitments, arrangements and
understandings under this Agreement.
3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER. The Stockholder
hereby represents and warrants to Parent as follows:
(a) OWNERSHIP OF SUBJECT SHARES. The Stockholder is the record
and Beneficial Owners of the Subject Shares. On the date hereof, the Subject
Shares, together with the shares of Company Common Stock Beneficial Owned by
Stockholder which are subject to the Primary Voting Agreement, dated the date
hereof, by and among Parent, Merger Subsidiary, the Company and Stockholder,
constitute all of the shares of Company Common Stock owned of record or
Beneficially Owned by the Stockholder and its affiliates. The Stockholder has
sole voting power and sole power to issue instructions with respect to the
matters set forth in Section 2 hereof, sole power of disposition, sole power of
conversion, sole power to demand appraisal rights and sole power to agree to all
of the matters set forth in this Agreement, in each case with the respect to all
of the Subject Shares with no limitations, qualifications or restrictions of
such rights, subject to applicable securities laws and the terms of this
Agreement.
(b) POWER; BINDING AGREEMENT. The Stockholder has the corporate
power and authority to enter into and perform all of the Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by the Stockholder will not violate any other agreement to which
the Stockholder is a party including, without limitation, any voting agreement,
proxy arrangement, pledge agreement, shareholder agreement or voting trust. This
Agreement has been duly and validly executed and delivered by the Stockholder
and constitutes a valid and binding agreement of the Stockholder, enforceable
against the Stockholder in accordance with its terms. The Board of Directors of
the Company has approved, for purposes of Section 203 of the Delaware Law and
any applicable provision of the Company's certificate of incorporation, the
terms of this Agreement, including, without limitation, the irrevocable proxy
and voting provisions set forth in Section 2 hereof. There is no beneficiary or
holder of a voting trust certificate or other interest of any trust of which the
Stockholder is a trustee whose consent is required for the execution and
delivery of this Agreement or the consummation by the Stockholder of the
transactions contemplated hereby.
(c) NO CONFLICTS. Except for filings under the Exchange Act,
(i) no filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by the
Stockholder and the consummation by the Stockholder of the transactions
contemplated hereby and (ii) none of the execution and delivery of this
Agreement by the Stockholder, the consummation by the Stockholder of the
transactions contemplated hereby or compliance by the Stockholder with any of
the provisions hereof shall (A) conflict with or result in any breach of any
organizational documents applicable to the Stockholder, (B) result in a
violation or breach of, or constitute (with or without notice or lapse
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of time or both) a default (or give rise to any third party right of
termination, cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, loan agreement, bond, mortgage,
indentures, license, contract, arrangement, agreement or other instrument or
obligation of any kind to which the Stockholder is a party or by which the
Stockholder or any of its properties or assets may be bound, or (C) violate any
order, writ, injunction, decree, judgment, statute, rule or regulation
applicable to the Stockholder or any of its properties or assets.
(d) NO ENCUMBRANCES. Except as permitted by this Agreement, the
Subject Shares and the certificates representing such Subject Shares are now,
and at all times during the term hereof will be, held by the Stockholder, or by
a nominee or custodian for the benefit of the Stockholder, free and clear of all
Encumbrances, proxies, voting trusts or agreements, understandings or
arrangements or any other rights whatsoever, except for and such Encumbrances or
proxies arising hereunder.
(e) NO FINDER'S FEES. No broker, investment banker, financial
advisor or other Person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated hereby based upon arrangements made by or on behalf of the
Stockholder.
(f) RELIANCE BY PARENT. The Stockholder understands and
acknowledges that Parent is entering into, and causing Merger Subsidiary to
enter into, the Merger Agreement in reliance upon the Stockholder's execution
and delivery of this Agreement.
4. REPRESENTATION AND WARRANTIES OF PARENT AND MERGER SUBSIDIARY.
(a) POWER; BINDING AGREEMENT. Each of Parent and Merger
Subsidiary has the corporate power and authority to enter into and perform all
of its obligations under this Agreement. The execution, delivery and performance
of this Agreement by each of Parent and Merger Subsidiary will not violate any
other agreement to which either of them is a party. This Agreement has been duly
and validly executed and delivered by each of Parent and Merger Subsidiary and
constitutes a valid and binding agreement of each of Parent and Merger
Subsidiary, enforceable against the Stockholder in accordance with its terms.
(b) NO CONFLICTS. Except for filings under the Exchange Act,
(i) no filing with, and no permit, authorization, consent or approval of, any
Governmental Entity is necessary for the execution of this Agreement by each of
Parent and Merger Subsidiary and the consummation by each of Parent and Merger
Subsidiary of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by each of Parent and Merger
Subsidiary, the consummation by each of Parent and Merger Subsidiary of the
transactions contemplated hereby or compliance by each of Parent and Merger
Subsidiary with any of the provisions hereof shall (A) conflict with or result
in any breach of any organizational documents applicable to either Parent or
Merger Subsidiary, (B) result in a violation or breach of, or constitute (with
or without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, loan agreement,
bond, mortgage, indentures, license,
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contract, arrangement, agreement or other instrument or obligation of any kind
to which either Parent or Merger Subsidiary is a party or by which either of
Parent or Merger Subsidiary or any of their properties or assets may be bound,
or (C) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to either Parent or Merger Subsidiary or any of their
properties or assets.
5. FURTHER ASSURANCES. From time to time, at the other party's
request and without further consideration, each party hereto shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or desirable to consummate and make effective, in the most
expeditious manner practicable, the transactions contemplated by this Agreement.
6. STOP TRANSFER. The Stockholder shall not request that the Company
register the transfer (book-entry or otherwise) of any certificate or
uncertificated interest representing any of the Subject Shares, unless such
transfer is made in accordance with this Agreement. In the event of a stock
dividend or distribution, or any change in the Company Common Stock by reason of
any stock dividend, split-up, recapitalization, combination, exchange of shares
or the like, the term "SUBJECT SHARES" shall refer to and include the Subject
Shares as well as all such stock dividends and distributions and any shares into
which or for which any or all of the Subject Shares may be changed or exchanged.
7. TERMINATION. The covenants and agreements contained herein with
respect to the Subject Shares shall terminate upon the earlier to occur of (i)
the Closing Date and (ii) the termination of the Merger Agreement in accordance
with its terms; PROVIDED THAT, if the termination of the Merger Agreement gives
rise to, or, with the passing of time could give rise to, the requirement that a
Termination Fee be paid under the Merger Agreement, then this Agreement shall
not terminate until 24 months after the date hereof. Notwithstanding the
foregoing, in the event a Superior Proposal is made and the Board of Directors
makes a good faith determination to withdraw or modify its recommendation that
the stockholders of the Company adopt and approve the Merger Agreement and the
Merger, this Agreement shall be terminable by any party hereto upon such
withdrawal or modification occurring in accordance with Section 5.3(c) of the
Merger Agreement.
8. MISCELLANEOUS.
(a) ENTIRE AGREEMENT. This Agreement and the agreements and
documents referred to in this Agreement or delivered hereunder are the exclusive
statement of the agreement between the parties concerning the subject matter
hereof. All negotiations and prior agreements between the parties (other than
those incorporated herein) are merged into this Agreement, and there are no
representations, warranties, covenants, understandings, or agreements, oral or
otherwise, in relation thereto among the parties other than those incorporated
herein and to be delivered hereunder.
(b) BINDING AGREEMENT. This Agreement and the obligations
hereunder shall attach to the Subject Shares and shall be binding upon any
person or entity to which legal or beneficial ownership of such Subject Shares
shall pass, whether by operation of law or
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otherwise, including, without limitation, the Stockholder's successors.
Notwithstanding any transfer of Subject Shares, the transferor shall remain
liable for the performance of all obligations of the transferor under this
Agreement.
(c) ASSIGNMENT. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of the other
parties.
(d) AMENDMENTS, WAIVERS, ETC. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated,
except upon the execution and delivery of a written agreement executed by the
parties hereto.
(e) NOTICES. Any notice, request, instruction or other document
to be given hereunder by any party to the others shall be deemed given if in
writing and delivered personally or sent by overnight courier (providing proof
of delivery), postage prepaid or by facsimile (which is confirmed).
if to Parent or Merger Subsidiary:
225 Reineckers Lane, Suite 525
Alexandria, VA 22314
Attention: Misty Walsh
Facsimile: (703) 683-8979
with a copy to:
Michael W. Sturrock, Esq.
Latham & Watkins LLP
80 Raffles Place #14-20
UOB Plaza 2, Singapore 048624
Facsimile: (+65) 6536-1171
if to the Company:
3800 Richardson Road South
Hope Hull, AL 36043
Attention: President
Facsimile: (334) 613-6591
with a copy to:
Leonard Gubar, Esq.
Piper Rudnick LLP
1251 Avenue of the Americas
New York, New York 10020
Facsimile: (212) 835-6001
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if to the Stockholder:
153 East 53rd Street
59th Floor
New York, New York 10022
Facsimile: (212) 702-4666
with a copy to:
Leonard Gubar, Esq.
Piper Rudnick LLP
1251 Avenue of the Americas
New York, New York 10020
Facsimile: (212) 835-6001
or to such other address as may have been designated in a prior notice. Notices
shall be deemed to have been given when received.
(f) SPECIFIC PERFORMANCE. Each of the parties hereto recognizes
and acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore in the event
of any such breach the aggrieved party shall be entitled to the remedy of
specific performance of such covenants and agreements and injunctive and other
equitable relief in addition to any other remedy to which it may be entitled, at
law or in equity.
(g) REMEDIES CUMULATIVE. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative or exclusive, and the exercise
of any thereof by any party shall not preclude the simultaneous or later
exercise of any other such right, power or remedy by such party.
(h) NO WAIVER. The failure of any party hereto to exercise any
right, power or remedy provided under this Agreement or otherwise available in
respect hereof at law or in equity, or to insist upon compliance by any other
party hereto with its obligations hereunder, and any custom or practice of the
parties at variance with the terms hereof, shall not constitute a waiver by such
party of its right to exercise any such other right, power or remedy or to
demand such compliance.
(i) NO THIRD PARTY BENEFICIARIES. Subject to the provisions of
Section 9(b) hereof, this Agreement is not intended to be for the benefit of,
and shall not be enforceable by, any person or entity who or which is not a
party hereto.
(j) GOVERNING LAW. This Agreement, including all matters of
construction, validity and performance, shall be governed by and construed and
enforced in accordance with the laws of the State of Delaware, as applied to
contracts made, executed and to be fully performed in such state by citizens of
such state, without regard to conflict of laws principles.
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(k) DESCRIPTIVE HEADINGS. The descriptive headings used herein
used herein are inserted for convenience of reference only and are not intended
to be part of or to affect the meaning or interpretation of this Agreement.
(l) COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same instrument.
[Signature Page Follows]
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IN WITNESS WHEREOF, the undersigned have caused this Agreement to
be duly executed as of the day and year first above written.
VISION TECHNOLOGIES KINETICS, INC.
By: /s/ JOHN COBURN
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Name: John Coburn
Title: Authorized Representative
VTK MERGER SUBSIDIARY CORPORATION
By: /s/ ALFRED W. CLARK
--------------------------------------
Name: Alfred W. Clark
Title: President
MILTOPE GROUP INC.
By: /s/ THOMAS R. DICKINSON
--------------------------------------
Name: Thomas R. Dickinson
Title: President and CEO
GREAT UNIVERSAL INCORPORATED
By: /s/ HENRY LEE GUY
--------------------------------------
Name: Henry Lee Guy
Title: President and CEO
S-1
SCHEDULE I
SUBJECT SHARES
STOCKHOLDER SUBJECT SHARES
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GREAT UNIVERSAL INCORPORATED 1,577,560
Schedule - I