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EXHIBIT 2.2
SCI SYSTEMS, INC. VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of
July 13, 2001, by and between Sanmina Corporation, a Delaware corporation
("Sanmina"), and the undersigned affiliate ("Affiliate") of SCI Systems, Inc.,
a Delaware corporation ("SCI").
RECITALS
A. Concurrently with the execution of this Agreement, Sanmina,
SCI and Sun Acquisition Subsidiary, Inc., a Delaware corporation and a wholly
owned subsidiary of Sanmina ("Merger Sub"), have entered into an Agreement and
Plan of Reorganization dated as of July 13, 2001 (the "Merger Agreement") which
provides for the merger (the "Merger") of Merger Sub with and into SCI.
Pursuant to the Merger, shares of capital stock of SCI will be cancelled and,
upon surrender thereof, the holders will receive Common Stock of Sanmina on the
basis described in the Merger Agreement.
B. The Affiliate 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 capital stock
of SCI as is indicated on the final page of this Agreement (the "Shares").
C. Sanmina desires the Affiliate to agree, and the Affiliate is
willing to agree, not to transfer or otherwise dispose of any of the Shares, or
any other shares of capital stock of SCI acquired hereafter 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
SCI so as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. Definitions.
1.1 Expiration Date. As used herein, the term
"Expiration Date" shall mean the earlier to occur of (i) such date and time as
the Merger shall become effective in accordance with the terms and provisions
of the Merger Agreement and (ii) such date and time as the Merger Agreement
shall be terminated pursuant to Article VII thereof.
1.2 Transfer. The Affiliate 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.
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2. Transfer of Shares.
2.1 Transferee of Shares to be Bound by this Voting
Agreement. Affiliate agrees that, during the period from the date of this
Voting Agreement through the Expiration Date, Affiliate shall not cause or
permit any Transfer of any of the Shares to be effected unless each transferee
to which any of such Shares, or any interest in any of such Shares, is or may
be transferred shall have: (X) executed a counterpart of this Voting Agreement
and a proxy in the form attached hereto as Exhibit A (with such modifications
as Sanmina may reasonably request); and (Z) agreed in writing to hold such
Shares (or interest in such Shares) subject to all of the terms and provisions
of this Voting Agreement; provided, however, that notwithstanding anything to
the contrary contained in this Agreement, each Affiliate may, without the
consent of Sanmina or any other person, and without compliance with (X) and (Y)
above, transfer any or all of the Shares (or any interest therein), on a
cumulative basis, up to five percent (5%) of the number of Shares owned by such
Affiliate as of the date of this Agreement.
2.2 Transfer of Voting Rights. Affiliate agrees that,
during the period from the date of this Voting Agreement through the Expiration
Date, Affiliate shall not deposit (or permit the deposit of) any Shares in a
voting trust or grant any proxy or enter into any voting agreement or similar
agreement in contravention of the obligations of Affiliate under this Voting
Agreement with respect to any of the Shares.
2.3 Additional Purchases. Affiliate agrees that any
shares of capital stock of SCI that Affiliate purchases or with respect to
which Affiliate 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.
3. Agreement to Vote Shares. At every meeting of the
stockholders of SCI called with respect to any of the following, and at every
adjournment thereof, and on every action or approval by written consent of the
stockholders of SCI with respect to any of the following, Affiliate shall vote
the Shares and any New Shares in favor of approval of the Merger Agreement and
the Merger, including the issuance of shares of Sanmina Common Stock by virtue
of the Merger and the change of Sanmina's corporate name. Affiliate agrees not
to take any actions contrary to Affiliate's obligations under this Agreement.
4. Irrevocable Proxy. Concurrently with the execution of this
Agreement, Affiliate agrees to deliver to Sanmina a proxy in the form attached
hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the extent
provided in Section 212 of the Delaware General Corporation Law, with respect
to the total number of shares of capital stock of SCI beneficially owned (as
such term is defined in Rule 13d-3 under the Exchange Act) by Affiliate set
forth therein, provided, however, that the Proxy shall be revoked upon
expiration or termination of this Voting Agreement in accordance with its
terms.
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5. Representations, Warranties and Covenants of the Affiliate.
Affiliate hereby represents, warrants and covenants to Sanmina as follows:
Affiliate (i) is the beneficial owner of the Shares, which at the date hereof
and at all times up until the Expiration Date will be free and clear of any
liens, claims, options, charges or other encumbrances; (ii) does not
beneficially own any shares of capital stock of SCI other than the Shares
(excluding shares as to which Affiliate currently disclaims beneficial
ownership in accordance with applicable law); and (iii) has full power and
authority to make, enter into and carry out the terms of this Agreement and the
Proxy.
6. No Limitation on Discretion as Director. This Agreement is
intended solely to apply to the exercise by Affiliate in his or her individual
capacity of rights attaching to ownership of the Shares, and nothing herein
shall be deemed to apply to, or to limit in any manner the discretion of
Affiliate with respect to, any action which may be taken or omitted by him or
her acting in his or her fiduciary capacity as a director of SCI.
7. Additional Documents. Affiliate hereby covenants and agrees
to execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Sanmina or Affiliate, as the case may be, to carry out
the intent of this Agreement and the Proxy.
8. Consent and Waiver. Affiliate hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which Affiliate is a party or pursuant to any
rights Affiliate may have.
9. Termination. This Agreement and the Proxy delivered in
connection herewith shall terminate and shall have no further force or effect
as of the Expiration Date.
10. Miscellaneous.
10.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to
be invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
10.2 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 prior written consent of the other.
10.3 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.
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10.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Sanmina will be irreparably harmed and that there will
be no adequate remedy at law for a violation of any of the covenants or
agreements of Affiliate set forth herein. Therefore, it is agreed that, in
addition to any other remedies that may be available to Sanmina upon any such
violation, Sanmina shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Sanmina at law or in equity.
10.5 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, 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 Sanmina: Sanmina Corporation
2700 North First Street
San Jose, CA 95134
Attn: Randy Furr
Telephone: (408) 964-3500
Facsimile: (408) 964-3636
With a copy to its General Counsel at the
same address, and
With a copy to: Wilson Sonsini Goodrich & Rosati
Professional Corporation
Palo Alto, California 94304-1050
Attn: Christopher Mitchell
Telephone: (650) 493-9300
Facsimile: (650) 493-6811
If to the Affiliate: To the address for notice set forth on the
last page hereof.
With a copy to: Powell Goldstein Frazer & Murphy LLP
16th Floor, 191 Peachtree Street
Attn: James J. McAlpin, Jr.
Telephone: (404) 572-6600
Facsimile: (404) 572-6999
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
only be effective upon receipt.
10.6 Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
Delaware.
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10.7 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.
10.8 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.
10.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction of interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to
be duly executed on the date and year first above written.
SANMINA CORPORATION
By:
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Title:
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AFFILIATE:
By:
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Affiliate's Address for Notice:
Shares beneficially owned:
shares of Common Stock
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Shares subject to outstanding options:
shares of Common Stock
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***VOTING AGREEMENT***
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Exhibit A
IRREVOCABLE PROXY
The undersigned stockholder of SCI Systems, Inc., a Delaware
corporation ("SCI"), hereby irrevocably (to the extent provided in Section 212
of the Delaware General Corporation Law) appoints the directors on the Board of
Directors of Sanmina Corporation, a Delaware corporation ("Sanmina"), and each
of them individually, as the sole and exclusive attorneys and proxies of the
undersigned, with full power of substitution and resubstitution, to the full
extent of the undersigned's rights with respect to the shares of capital stock
of SCI beneficially owned by the undersigned, which shares are listed on the
final page of this Proxy (the "Shares"), and any and all other shares or
securities issued or issuable in respect thereof on or after the date hereof,
until such time as that certain Agreement and Plan of Reorganization dated as
of July 13, 2001 (the "Merger Agreement"), among Sanmina, Sun Acquisition
Subsidiary, Inc., a Delaware corporation and a wholly owned subsidiary of
Sanmina ("Merger Sub"), and SCI, shall be terminated in accordance with its
terms or the Merger (as defined in the Merger Agreement) is effective. Upon the
execution hereof, all prior proxies given by the undersigned with respect to
the Shares and any and all other shares or securities issued or issuable in
respect thereof on or after the date hereof are hereby revoked and no
subsequent proxies will be given.
This proxy is irrevocable (to the extent provided in Section 212 of
the Delaware General Corporation Law), is granted pursuant to the Voting
Agreement dated as of July 13, 2001 between Sanmina and the undersigned
stockholder (the "Voting Agreement"), and is granted in consideration of
Sanmina entering into the Merger Agreement. The attorneys and proxies named
above will be empowered at any time prior to termination of the Merger
Agreement to exercise all voting rights (including, without limitation, the
power to execute and deliver written consents with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of SCI
stockholders, and in every written consent in lieu of such a meeting, or
otherwise, in favor of approval of the Merger and the Merger Agreement and the
issuance of shares of Sanmina Common Stock by virtue of the Merger.
The attorneys and proxies named above may only exercise this proxy to
vote the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the stockholders of
SCI and in every written consent in lieu of such meeting, in favor of approval
of the Merger and the Merger Agreement, including the issuance of shares of
Sanmina Common Stock by virtue of the Merger, and may not exercise this proxy
on any other matter. The undersigned stockholder may vote the Shares on all
other matters.
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Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: July 13, 2001
Signature of Stockholder:
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Print Name of Stockholder:
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Shares beneficially owned:
shares of Common Stock
****IRREVOCABLE PROXY****