VOTING AGREEMENT
This Voting Agreement ("Agreement") is made and entered into as of December
26, l998 between The Fairchild Corporation, a Delaware corporation ("Parent"),
and the undersigned stockholder ("Stockholder") of Kaynar Technologies Inc., a
Delaware corporation (the "Company").
Recitals
A. Concurrently with the execution of this Agreement, Parent, Company and
Dah Dah, Inc., a Delaware corporation and a wholly owned subsidiary of Parent
("Merger Sub"), have entered into an Agreement and Plan of Reorganization of
even date herewith (the "Merger Agreement") which provides for the merger (the
"Merger") of Merger Sub with and into the Company. Pursuant to the Merger,
shares of capital stock of the Company will be converted into cash in the manner
set forth 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 (the "Shares") of the outstanding Common Stock
of the Company as is indicated on the final page of this Agreement.
C. Parent 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 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 the
Company so as to facilitate consummation of the Merger.
NOW, THEREFORE, in consideration of thc covenants, promises and
representations set forth herein, the parties agree as follows:
1. Agreement to Retain Shares.
1.1 Transfer and Encumbrance. Unless the transferee agrees to be bound by
the terms of this Agreement, Stockholder agrees not to transfer (except as may
be specifically required by court order), sell, exchange, pledge or otherwise
dispose of or encumber any of the Shares or any New Shares as defined in Section
1.2 below, or to make any offer or agreement relating thereto, at any time prior
to the 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 as the Merger Agreement shall be terminated pursuant to
Article VII thereof.
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 (as such term is defined in
Rule 13d-3 under the Exchange Act) 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, 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, Stockholder shall vote the
Shares and any New Shares: (i) in favor of approval of the Merger Agreement and
the Merger and any matter that could reasonably be expected to facilitate the
Merger; and (ii) against approval of any proposal made in opposition to or
competition with consummation of the Merger and against any merger,
consolidation, sale of assets, reorganization or recapitalization, with any
party other than with Parent and its affiliates and against any liquidation or
winding up of the Company (each of the foregoing is hereinafter referred to as
an "Opposing Proposal"); provided that the Merger Agreement and the transactions
contemplated therein shall not have been amended or modified in any material
respect. Stockholder agrees not to take any actions contrary to Stockholder's
obligations under this Agreement.
3. Representations, Warranties and Covenants of the Stockholder.
Stockholder hereby represents, warrants and covenants to Parent as follows:
3.1 Ownership of Shares. Stockholder (i) is the beneficial owner of the
Shares, (ii) does not beneficially own any shares of capital stock of the
Company other than the Shares (excluding shares as to which Stockholder
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.
3.2 No Proxy Solicitations. Stockholder will not, and will not permit any
entity under Stockholder's control to: (i) solicit proxies or become a
"participant" in a "solicitation" (as such terms are defined in Regulation 14A
under the Exchange Act) with respect to an Opposing 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; (ii) initiate a Stockholders' vote or action by consent of the
Company Stockholders with respect to an Opposing Proposal; or (iii) 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 with respect to an Opposing
Proposal.
4. Additional Documents. Stockholder hereby covenants and agrees to execute
and deliver any additional documents necessary or desirable, in the reasonable
opinion of Parent and Stockholder, as the case may be, to carry out the intent
of this Agreement.
5. Termination. This Agreement shall terminate and shall have no further
force or effect as of the Expiration Date.
6. Miscellaneous.
6.1 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
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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.
6.2 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 thc parties hereto may be assigned by either of the
parties without prior written consent of the other.
6.3 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.
6.4 Specific Performance; Injunctive Relief. The parties hereto acknowledge
that Parent 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 Stockholder set
forth herein. Therefore, it is agreed that, in addition to any other remedies
that may be available to Parent upon any such violation, Parent shall have the
right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Parent at law or in equity.
6.5 Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, 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 Parent:
The Fairchild Corporation
45025 Aviation Drive
Dulles, Virginia 20166
Attention: Donald Miller, Esq.
Telephone No.: (703) 478-5945
Telecopy No.: (703) 478-5995
with a copy to:
Cahill Gordon & Reindel
80 Pine Street
New York, New York 10005
Attention: James J. Clark, Esq.
Telephone No.: (212) 701-3849
Telecopy No.: (212) 269-5420
If to the Stockholder:
c/o Kaynar Technologies Inc.
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500 North State College Boulevard, Suite 1000
Orange, California 92831-1638
With a copy to:
O'Melveny & Myers LLP
400 South Hope Street
Los Angeles, California 90071
Attention: C. James Levin, Esq.
Telephone No.: (213) 430-6578
Telecopy No.: (213) 430-6407
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.
6.6 Governing Law. This Agreement shall be governed by, and construed and
enforced in accordance with, the internal laws of the State of Delaware.
6.7 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.
6.8 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.
6.9 Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction of interpretation of this Agreement.
[Balance of Page left Intentionally Blank]
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the day and year first above written.
THE FAIRCHILD CORPORATION
By: /s/ Donald E. Miller
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Name: Donald E. Miller
Title: Executive Vice President
DAVID A. WERNER
/s/ David A. Werner
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Shares beneficially owned:
341,564 shares of Common Stock
*** SIGNATURE PAGE FOR VOTING AGREEMENT ***
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