Sanmina Corporation Voting Agreement between SCI Systems, Inc. and Sanmina Affiliate (July 13, 2001)

Summary

This agreement is between SCI Systems, Inc. and an affiliate of Sanmina Corporation. It requires the Sanmina affiliate to retain ownership and voting rights of their Sanmina shares and to vote those shares in favor of a proposed merger between SCI and Sanmina. The affiliate cannot transfer or otherwise dispose of their shares, except in limited circumstances, until the merger is completed or the merger agreement is terminated. The agreement also requires the affiliate to provide an irrevocable proxy to SCI for voting purposes and ends automatically when the merger is finalized or abandoned.

EX-2.3 4 g70847ex2-3.txt FORM OF SANMINA CORPORATION VOTING AGREEMENT 1 EXHIBIT 2.3 SANMINA CORPORATION VOTING AGREEMENT This Voting Agreement ("Agreement") is made and entered into as of July 13, 2001, by and between SCI Systems, Inc., a Delaware corporation ("SCI"), and the undersigned affiliate ("Affiliate") of Sanmina Corporation, a Delaware corporation ("Sanmina"). 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 Sanmina as is indicated on the final page of this Agreement (the "Shares"). C. SCI 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 Sanmina 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 Sanmina 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. -1- 2 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 SCI 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 SCI 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 Sanmina 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. Irrevocable Proxy. Concurrently with the execution of this Agreement, Affiliate agrees to deliver to SCI 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 Sanmina 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. 4. Representations, Warranties and Covenants of the Affiliate. Affiliate hereby represents, warrants and covenants to SCI as follows: Affiliate (i) is the beneficial owner of the Shares; (ii) does not beneficially own any shares of capital stock of Sanmina 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. -2- 3 5. 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 Sanmina. 6. Additional Documents. Affiliate hereby covenants and agrees to execute and deliver any additional documents necessary or desirable, in the reasonable opinion of SCI or Affiliate, as the case may be, to carry out the intent of this Agreement and the Proxy. 7. 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. 8. 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. -3- 4 9. Miscellaneous. 9.1 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. 9.2 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. 9.3 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. 9.4 Specific Performance; Injunctive Relief. The parties hereto acknowledge that SCI 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 SCI upon any such violation, SCI shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to SCI at law or in equity. 9.5 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: -4- 5 If to SCI: SCI Systems, Inc. 2101 West Clinton Avenue Huntsville, AL 35805 Telephone: (256) 882-4800 Facsimile: (256) ___-____ With a copy to its General Counsel at the same address, and With a copy to: Powell Goldstein Frazer & Murphy LLP 16th Floor, 191 Peachtree Street Atlanta, GA 30303 Attn: James J. McAlpin, Jr. Telephone: (404) 572-6600 Facsimile: (404) 572-6999 If to the Affiliate: To the address for notice set forth on the last page hereof. With a copy to: Wilson Sonsini Goodrich & Rosati Professional Corporation 650 Page Mill Road Palo Alto, California ###-###-#### Attn: Christopher Mitchell Telephone: (650) 493-9300 Facsimile: (650) 493-6811 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. 9.6 Governing Law. This Agreement shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Delaware. 9.7 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. 9.8 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. 9.9 Effect of Headings. The section headings herein are for convenience only and shall not affect the construction of interpretation of this Agreement. -5- 6 IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be duly executed on the date and year first above written. SCI SYSTEMS, INC. By: ------------------------------------- Title: ---------------------------------- AFFILIATE: By: ------------------------------------- Affiliate's Address for Notice: Shares beneficially owned: _______________ shares of Common Stock Shares subject to outstanding options: _______________ shares of Common Stock ***VOTING AGREEMENT*** 7 Exhibit A IRREVOCABLE PROXY The undersigned stockholder of Sanmina Corporation, a Delaware corporation ("Sanmina"), hereby irrevocably (to the extent provided in Section 212 of the Delaware General Corporation Law) appoints the directors on the Board of Directors of SCI Systems, Inc., a Delaware corporation ("SCI"), 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 Sanmina 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, 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 SCI and the undersigned stockholder (the "Voting Agreement"), and is granted in consideration of SCI 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 Sanmina 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, the issuance of shares of Sanmina Common Stock by virtue of the Merger and the change of Sanmina's corporate name. 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 Sanmina 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 the change of Sanmina's corporate name, and may not exercise this proxy on any other matter. The undersigned stockholder may vote the Shares on all other matters. 8 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: ------------------------------------------ Print Name of Stockholder: ----------------------------------------- Shares beneficially owned: shares of Common Stock ****IRREVOCABLE PROXY****