EXHIBIT 2.2
STOCKHOLDER SUPPORT AGREEMENT
THIS STOCKHOLDER SUPPORT AGREEMENT (the "Agreement") is entered into as
of December 2, 2002, by and among OLIN ACQUISITION CORPORATION, a Delaware
corporation ("Buyer"), VARI-L COMPANY, INC., a Colorado corporation ("Seller"),
and the undersigned stockholder of Seller ("Stockholder").
RECITALS
A. Buyer, Seller and Sirenza Microdevices, Inc., a Delaware corporation
and the corporate parent of Buyer ("Parent"), are entering into an Asset
Purchase Agreement of even date herewith (the "Purchase Agreement") which
provides (subject to the conditions set forth therein) for the sale by Seller of
the Acquired Assets (as defined in the Purchase Agreement), including
substantially all of the assets of the Business (as defined in the Purchase
Agreement) to Buyer in exchange for shares of common stock of Parent, cash and
the assumption of certain Seller liabilities by Buyer as specified in the
Purchase Agreement (the "Transaction").
B. Following the Closing of the Transaction, Seller intends to effect
the liquidation, dissolution and winding-up of the Seller in the manner
contemplated by the Purchase Agreement (the "Liquidation").
C. In order to induce Parent and Buyer to enter into the Purchase
Agreement, the Stockholder (solely in his, her or its capacity as such) is
entering into this Agreement.
AGREEMENT
The parties to this Agreement, intending to be legally bound, agree as
follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Agreement:
(a) All capitalized terms used but not otherwise defined in
this Agreement have the meanings given to them in the Purchase Agreement.
(b) "Seller Capital Stock" shall mean the shares of capital
stock of Seller, including, without limitation, the common stock, par value
$0.01 per share, of Seller.
(c) "Expiration Date" shall mean the earlier of (i) the date
upon which the Purchase Agreement is validly terminated in accordance with its
terms, or (ii) the Closing Date.
(d) The Stockholder shall be deemed to "Own" or to have
acquired "Ownership" of a security if the Stockholder: (i) is the record owner
of such security; or (ii) is the "beneficial owner" (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of such security.
-1-
(e) "Person" shall mean any (i) individual, (ii) corporation,
limited liability company, partnership or other entity, or (iii) governmental
authority.
(f) "Subject Securities" shall mean: (i) all securities of
Seller (including all shares of Seller Capital Stock and all options, warrants
and other rights to acquire shares of Seller Capital Stock) Owned by the
Stockholder as of the date of this Agreement; and (ii) all additional securities
of Seller (including all additional shares of Seller Capital Stock and all
additional options, warrants and other rights to acquire shares of Seller
Capital Stock) of which the Stockholder acquires Ownership during the period
from the date of this Agreement through the Expiration Date.
(g) A Person 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; (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, or (iii) enters into any contract, option, short sale, equity
swap, hedge or other arrangement or undertaking with respect to the direct or
indirect actual or potential sale, assignment, transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise by operation of law) or other disposition of
such security.
SECTION 2. RESTRICTIONS ON TRANSFER OF SUBJECT SECURITIES
2.1 Restriction on Transfer of Subject Securities. During the period
from the date of this Agreement through the Expiration Date, the Stockholder
shall not, directly or indirectly, cause or permit any Transfer of any of the
Subject Securities to be effected, unless each Person to which any such Subject
Securities, or any interest therein, is Transferred shall have first executed a
binding counterpart of this Agreement and a proxy in the form attached hereto as
Exhibit A, and shall have delivered copies of same to Buyer. Seller shall cause
its transfer agent to decline to transfer such Subject Securities and to note
stop transfer restrictions on the stock register and other pertinent Seller
records relating to the Subject Securities through the Expiration Date.
2.2 Transfer of Voting Rights. The Stockholder agrees that, during the
period from the date of this Agreement through the Expiration Date, the
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
(other than pursuant to this Agreement).
SECTION 3. COVENANTS OF THE STOCKHOLDER
3.1 Voting Agreement. The Stockholder hereby agrees that, during the
period from the date of this Agreement through the Expiration Date, at any
meeting of stockholders of Seller, however called, and in any written action by
consent of stockholders of Seller, the Stockholder shall cause all outstanding
shares of Seller Capital Stock that are Owned by the Stockholder as of the
record date fixed for such meeting to be voted:
(a) in favor of the approval and adoption of the Purchase
Agreement, in favor of the Transaction and each of the other transactions
contemplated by the Purchase Agreement (including the Liquidation), and in favor
of any action in furtherance of any of the foregoing;
(b) against approval of any proposal (including an Acquisition
Proposal) made in opposition to, or in competition with (i) the consummation of
the Transaction, or (ii) the consummation of any of the other actions
contemplated by the Purchase Agreement (including the Liquidation); and
(c) against any other action that is intended, or would
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect (i) the Transaction, or (ii) any of the other actions
contemplated by the Purchase Agreement (including the Liquidation).
3.2 Irrevocable Proxy. Concurrently with the execution of this
Agreement, the Stockholder agrees to deliver to Buyer, and shall cause any other
holders of record of Subject Securities beneficially owned by Stockholder to
deliver to Buyer, an executed proxy in the form attached hereto as Exhibit A
(the "Proxy") with respect to all of the issued and outstanding shares of Seller
Capital Stock that now or hereafter may be Owned by the Stockholder, which Proxy
shall be irrevocable to the fullest extent permissible by applicable law.
3.3 Non-Solicitation. The Stockholder hereby agrees not to directly or
indirectly take any action that if taken by the Seller would violate any
provision of Section 5.7 of the Purchase Agreement.
SECTION 4. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDER
The Stockholder hereby represents and warrants as follows:
4.1 Authorization, etc. The Stockholder has the absolute and
unrestricted right, power, authority and capacity to execute and deliver this
Agreement and the Proxy and to perform his, her or its obligations hereunder and
thereunder. This Agreement and the Proxy have been duly executed and delivered
by the Stockholder and constitute legal, valid and binding obligations of the
Stockholder, enforceable against the Stockholder in accordance with their
respective terms, subject to (i) laws of general application relating to
bankruptcy, insolvency and the relief of debtors, and (ii) rules of law
governing specific performance, injunctive relief and other equitable remedies.
4.2 No Conflicts or Consents. The execution and delivery of this
Agreement and the Proxy by the Stockholder do not, and the performance of this
Agreement and the Proxy by the Stockholder will not: (i) conflict with or
violate any law, rule, regulation, order, decree or judgment applicable to the
Stockholder or by which the Stockholder or any of the 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 or restriction on any of the
Subject Securities pursuant to, any contract to which the Stockholder is a party
or by which the Stockholder or any of the Stockholder's affiliates or properties
is or may be bound or affected. The execution and delivery of this Agreement and
the Proxy by the Stockholder do not, and the performance of this Agreement and
the Proxy by the Stockholder will not, require any consent or approval of any
Person.
4.3 Title to Securities. The Stockholder hereby represents and warrants
to Buyer that, as of the date hereof: (i) the Stockholder is the beneficial
owner of the number of issued and outstanding shares of Seller Capital Stock set
forth on signature page of this Agreement, (ii) the Stockholder is the record
owner of the number of issued and outstanding shares of Seller Capital
Stock set forth on signature page of this Agreement, with full power to vote or
direct the voting of such shares for and on behalf of all beneficial owners of
such shares; (iii) the Stockholder Owns the number of issued and outstanding
options, warrants and other rights to purchase shares of Seller Capital Stock
set forth on the signature page of this Agreement; (iv) all such shares of
Seller Capital Stock and rights to purchase such shares are and will be free and
clear of any liens, pledges, security interests, claims, options, rights of
first refusal, co-sale rights, charges or other encumbrances; and (v) the
Stockholder does not beneficially own any securities of Seller other than as
stated above.
SECTION 5. MISCELLANEOUS
5.1 Further Assurances. From time to time and without additional
consideration, the Stockholder shall execute and deliver, or cause to be
executed and delivered, such additional transfers, assignments, endorsements,
proxies, consents and other instruments, and shall take such further actions, as
Buyer may reasonably request for the purpose of carrying out and furthering the
intent of this Agreement.
5.2 Notices. All notices and other communications hereunder shall be in
writing and shall be deemed given if delivered personally or by commercial
messenger or courier service, or mailed by registered or certified mail (return
receipt requested) or sent via facsimile (with acknowledgment of complete
transmission) to the parties at the following addresses (or at such other
address for a party as shall be specified by like notice):
if to the Stockholder:
at the address set forth below the Stockholder's signature on
the signature page hereof
if to Buyer:
Sirenza Microdevices, Inc.
522 Alomar Avenue
Sunnyvale, CA 94085
Attention: Chief Financial Officer
Facsimile: (408) 739-0970
with copies to:
Wilson Sonsini Goodrich & Rosati
Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Attention: Steven V. Bernard, Esq.
Facsimile: (650) 493-6811
Wilson Sonsini Goodrich & Rosati
Professional Corporation
One Market, Spear Street Tower, Suite 3300
San Francisco, California 94105
Attention: Steve L. Camahort, Esq.
Facsimile: (415) 947-2099
if to Seller:
Vari-L Company, Inc.
4895 Peoria Street.
Denver, CO 80239
Attention: Chief Financial Officer
Facsimile: (303) 373-3868
with a copy to:
Cooley Godward LLP
380 Interlocken Crescent, Suite 900
Broomfield, CO 80021
Attention: James Linfield, Esq.
Facsimile: (720) 566-4099
5.3 Severability. If any provision of this Agreement or any part of any
such provision is held under any circumstances to be invalid or unenforceable in
any jurisdiction, then (a) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this Agreement. Each provision of this
Agreement is separable from every other provision of this Agreement, and each
part of each provision of this Agreement is separable from every other part of
such provision.
5.4 Entire Agreement; Amendment. This Agreement and the Proxy 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. No addition to or modification of any provision of
this Agreement shall be binding upon either party unless made in writing and
signed by both parties.
5.5 Assignment; Binding Effect. Neither this Agreement nor any of the
interests or obligations hereunder may be assigned or delegated by any party
hereto and any attempted or purported assignment or delegation of any of such
interests or obligations shall be void. Subject to the preceding sentence, this
Agreement shall be binding upon the Stockholder and his heirs, estate,
executors, personal representatives, successors and assigns, and shall inure to
the benefit of Buyer and its successors and assigns. Notwithstanding the
foregoing, Buyer may assign this Agreement to any direct or indirect parent
company or wholly owned subsidiary without the consent of any other party hereto
being required. Without limiting any of the restrictions set forth in Section 2
or elsewhere in this Agreement, this Agreement shall be binding upon any Person
to whom any Subject Securities are transferred. Nothing in this Agreement is
intended to confer on any Person (other than the parties hereto and their
respective successors and assigns) any rights or remedies of any nature.
5.6 Specific Performance. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Agreement or the
Proxy was not performed in accordance with its specific terms or was otherwise
breached. The Stockholder agrees that, in the event of any
breach or threatened breach by the Stockholder of any covenant or obligation
contained in this Agreement or in the Proxy, Buyer shall be entitled (in
addition to any other remedy that may be available to it, including monetary
damages) to seek (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. The Stockholder further agrees
that neither Buyer 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 5.6, and the Stockholder
irrevocably waives any right he may have to require the obtaining, furnishing or
posting of any such bond or similar instrument.
5.7 Governing Law; Waiver of Jury Trial. This Agreement and the Proxy
shall be construed in accordance with, and governed in all respects by, the laws
of the State of California (without giving effect to principles of conflicts of
laws). THE STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY TRIAL IN
CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS AGREEMENT OR THE PROXY OR
THE ENFORCEMENT OF ANY PROVISION OF THIS AGREEMENT OR THE PROXY.
5.8 Counterparts. This Agreement may be executed by the parties 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.
5.9 Captions. The captions contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
5.10 Waiver. No failure on the part of a party hereto to exercise any
power, right, privilege or remedy under this Agreement, and no delay on the part
of a party hereto in exercising any power, right, privilege or remedy under this
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. A party hereto shall not be deemed to have waived
any claim available to such party arising out of this Agreement, or any power,
right, privilege or remedy of such party under this 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 such party; and any
such waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
5.11 Capacity as Stockholder. The provisions of this Agreement shall
only bind the Stockholder in the Stockholder's capacity as a stockholder of
Seller and shall in no way affect any actions taken by the Stockholder or any
affiliate of the Stockholder in his or her capacity as an officer or director of
Seller.
5.12 Construction.
(a) For purposes of this 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 Agreement.
(c) As used in this 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
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Agreement and Exhibits to this Agreement.
[Remainder of Page Intentionally Left Blank]
IN WITNESS WHEREOF, Buyer, Seller and the Stockholder have caused this
Stockholder Support Agreement to be executed as of the date first written above.
<Table>
SELLER: BUYER:
VARI-L COMPANY, INC. OLIN ACQUISITION CORPORATION
By: /s/ Charles R. Bland By: /s/ Thomas J. Scannell
------------------------------------------------- ----------------------------------------------------
Name: Charles R. Bland Name: Thomas J. Scannell
Title: Chief Executive Officer Title: President
STOCKHOLDER:
- -----------------------------------------------------
(Signature)
- -----------------------------------------------------
(Print Name)
Address:
--------------------------------------------
- -----------------------------------------------------
Facsimile:
------------------------------------------
Seller Capital Stock Held of Record:
- -----------------------------------------------------
Seller Capital Stock Beneficially Owned:
- -----------------------------------------------------
Options and Other Rights Owned:
- -----------------------------------------------------
</Table>
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder of Vari-L Company, Inc. a Colorado
corporation (the "Seller"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Olin Acquisition Corporation, a Delaware
corporation (the "Buyer"), any individual designated in writing by Buyer, and
each of them, as the sole and exclusive attorneys-in-fact and proxies of the
undersigned with full power of substitution and resubstitution with respect to
all outstanding shares of capital stock of the Seller now or hereafter owned of
record by the undersigned (the "Shares"), which Shares (as of the date hereof)
are specified on the final page of this proxy. Upon the execution hereof, all
prior proxies given by the undersigned with respect to any of the Shares are
hereby revoked, and the undersigned agrees that no subsequent proxies will be
given with respect to any of the Shares until after the Expiration Date (as
defined in the Voting Agreement).
This proxy is irrevocable, is coupled with an interest and is granted
in connection with the Stockholder Support Agreement, dated as of the date
hereof, among Buyer, Seller and the undersigned (the "Voting Agreement"), and is
granted in consideration of Parent and the Buyer entering into the Asset
Purchase Agreement, dated as of the date hereof, among Parent, Buyer and Seller
(the "Purchase Agreement"). All capitalized terms used but not otherwise defined
in this proxy have the meanings given to them in the Voting Agreement.
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote or grant consents with respect to the Shares at any
time through and until the Expiration Date at any meeting of stockholders of
Seller, however called, or in connection with any solicitation of written
consents from stockholders of Seller:
(a) in favor of the approval and adoption of the Purchase
Agreement, in favor of the Transaction and each of the other transactions
contemplated by the Purchase Agreement (including the Liquidation), and in favor
of any action in furtherance of any of the foregoing;
(b) against approval of any proposal (including an Acquisition
Proposal) made in opposition to, or in competition with (i) the consummation of
the Transaction, or (ii) the consummation of any of the other actions
contemplated by the Purchase Agreement (including the Liquidation); and
(c) against any other action that is intended, or would
reasonably be expected to, impede, interfere with, delay, postpone, discourage
or adversely affect (i) the Transaction, or (ii) any of the other actions
contemplated by the Purchase Agreement (including the Liquidation).
The undersigned may vote the Shares on all other matters.
This proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the undersigned (including any
transferee of any of the Shares).
-1-
If any provision of this proxy or any part of any such provision is
held under any circumstances to be invalid or unenforceable in any jurisdiction,
then (a) such provision or part thereof shall, with respect to such
circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (b) the invalidity or unenforceability of such provision or part thereof
under such circumstances and in such jurisdiction shall not affect the validity
or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this proxy. Each provision of this
proxy is separable from every other provision of this proxy, and each part of
each provision of this proxy is separable from every other part of such
provision.
This proxy shall terminate upon the Expiration Date.
Dated: December 2, 2002
<Table>
STOCKHOLDER
--------------------------------------------------------
(Signature)
--------------------------------------------------------
(Print Name)
Shares Held of Record
Common Stock
----------------------------------------
</Table>