EXHIBIT 3
VOTING AGREEMENT
FOR
CERTAIN STOCKHOLDERS OF
SUPERCONDUCTOR TECHNOLOGIES INC.
This VOTING AGREEMENT (the "Voting Agreement") is entered
into as of October 10, 2002, by and between Conductus, Inc., a
Delaware corporation ("Company"), and each of the parties that are
signatories hereto ("Stockholders").
Recitals
A. Company and Superconductor Technologies Inc., a
Delaware corporation (the "Parent"), are entering into an Agreement
and Plan of Merger dated as of October 9, 2002 (the "Merger
Agreement") which provides (subject to the conditions set forth
therein) for the merger of a wholly owned subsidiary of Parent with
and into the Company (the "Merger"). Capitalized terms not
otherwise defined in this Voting Agreement shall have the meanings
given to them in the Merger Agreement.
B. In order to induce Company to enter into the Merger
Agreement, each Stockholder, solely in his, her or its capacity as a
stockholder of Parent, is entering into this Voting Agreement.
Agreement
Each Stockholder, intending to be legally bound, severally
agrees on behalf of itself as follows:
1. Voting Of Shares. Stockholder agrees that, during the period
from the date of this Voting Agreement through the Expiration Date
(as defined in Section 6), at any meeting of stockholders of Parent,
however called, and in any action by written consent of the
stockholders of Parent, Stockholder shall vote the Subject
Securities (as defined in Section 6) or cause the Subject Securities
to be voted (to the extent such securities are entitled to be
voted):
1.1 in favor of the approval of the Merger and adoption of the
Merger Agreement and any matter that could reasonably be expected to
facilitate the Merger;
1.2 against any action or agreement that would result in a
breach of any representation, warranty, covenant or other obligation
or agreement of Parent under the Merger Agreement; and
1.3 against any action or agreement that would cause any
provision contained in Article VII of the Merger Agreement to not be
satisfied.
2. Transfer of Subject Securities.
2.1 Transfer of Subject Securities. Stockholder agrees that,
during the period from the date of this Voting Agreement through the
Expiration Date, Stockholder shall not (a) cause or permit any
Transfer of any of the Subject Securities to be effected; (b) tender
any of the Subject Securities to any Person or (c) create or permit
to exist any Encumbrance with respect to any Subject Securities
(other than Encumbrances which do not affect, directly or
indirectly, the right of Buyer to vote the Subject Securities as
provided in this Voting Agreement).
2.2 Transfer of Voting Rights. Stockholder agrees that,
during the period from the date of this Voting Agreement through the
Expiration Date, Stockholder shall ensure that: (a) none of the
Subject Securities are 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 proxies solicited by Parent in connection with the Merger,
which are not inconsistent with Sections 1.1 through 1.3 above.
3. Representations and Warranties of Stockholder. Each
Stockholder hereby represents and warrants severally (and not
jointly) to Company as follows:
3.1 Authorization, etc. Stockholder has the absolute and
unrestricted right, power, authority and capacity to execute and
deliver this Voting Agreement and to perform its obligations under
this Voting Agreement. This Voting Agreement has been duly executed
and delivered by Stockholder and constitute legal, valid and binding
obligations of Stockholder, enforceable against Stockholder in
accordance with their terms, except to the extent that
enforceability may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws affecting the enforcement
of creditors' rights generally or by general equitable principles.
3.2 Conflicts or Consents.
(a) The execution and delivery of this Voting Agreement by
Stockholder does not, and the performance of this Voting Agreement
by Stockholder will not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Stockholder or
by which it or any of its 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 Stockholder is a party or by which Stockholder or
any of his affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement by
Stockholder does not, and the performance of this Voting Agreement
by Stockholder will not, require any consent or approval of any
Person.
3.3 Title to Securities. As of the date of this Voting
Agreement: (a) Stockholder holds of record (free and clear of any
Encumbrances or restrictions except as specifically disclosed on the
signature page of this Voting Agreement) the number of outstanding
shares of Parent Common Stock set forth under the heading "Shares
Held of Record" on the signature page of this Voting Agreement; (b)
Stockholder holds (free and clear of any Encumbrances or
restrictions except as specifically disclosed on the signature page
of this Voting Agreement) the options, warrants and other rights to
acquire shares of Parent Common Stock set forth under the heading
"Options, Warrants and Other Rights" on the signature page of this
Voting Agreement; (c) Stockholder Owns the additional securities of
Parent set forth under the heading "Additional Securities
Beneficially Owned" on the signature page of this Voting Agreement;
and (d) Stockholder does not directly or indirectly Own any shares
of Parent Common Stock or other securities of Parent, or any option,
warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of Parent Common Stock or other securities of
Parent, other than the shares and options, warrants and other rights
set forth on the signature page of this Voting Agreement and other
than as contemplated by the Securities Purchase Agreement.
4. Representations and Warranties of Company. Company hereby
represents and warrants to each Stockholder as follows:
4.1 Authorization, etc. Company has the absolute and
unrestricted right, power, authority and capacity to execute and
deliver this Voting Agreement. This Voting Agreement has been duly
executed and delivered by Company, enforceable against Company in
accordance with its terms, except to the extent that enforceability
may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws affecting the enforcement of creditors'
rights generally or by general equitable principles.
4.2 No Conflicts or Consents.
(a) The execution and delivery of this Voting Agreement by
Company does not: (i) conflict with or violate any law, rule,
regulation, order, decree or judgment applicable to Company or by
which it or any of its 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 any contract to which
Company is a party or by which Company or any of its affiliates or
properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement by
Company does not require any consent or approval of any Person.
5. Miscellaneous.
5.1 Survival of Representations, Warranties and Agreements. All
representations, warranties, covenants and agreements made by
Stockholder in this Voting Agreement shall survive until the
Expiration Date.
5.2 Expenses. All costs and expenses incurred in connection
with the transactions contemplated by this Voting Agreement shall be
paid solely by the party incurring such costs and expenses.
5.3 Notices. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given if
delivered personally or if sent by overnight courier or similar
means or sent by facsimile with confirmation of receipt of
transmission, to the parties as follows:
if to Company:
Conductus, Inc.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Facsimile No.:
(▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇▇▇
with a copy
to:
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇
& Sutcliffe LLP
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇
▇▇▇▇▇
Facsimile No.:
▇▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇
▇. Grey
if to the Stockholders:
at the address set
forth below
Stockholder's
signature on the
signature page of
this Voting Agreement
with a copy to:
Parent at the
address set forth
in the Merger
Agreement.
Any such notice shall be effective (a) if
delivered personally, when received, (b) if sent by
overnight courier, when receipted for, and (d) if sent
by facsimile, when confirmation of receipt upon
receipt of transmission.
5.4 Severability. In case any one or more of the
provisions contained in this Voting Agreement should
be finally determined to be invalid, illegal or
unenforceable in any respect against a party to this
Voting Agreement, it shall be adjusted if possible to
effect the intent of the parties. In any event, the
validity, legality and enforceability of the remaining
provisions contained in this Voting Agreement shall
not in any way be affected or impaired thereby, and
such invalidity, illegality or unenforceability shall
only apply as to such party in the specific
jurisdiction where such final determination shall have
been made.
5.5 Agreement. This Voting Agreement and the
documents and instruments referred to in this Voting
Agreement embody the entire agreement and
understanding of the parties hereto in respect of the
subject matter contained in this Voting Agreement.
There are no representations, promises, warranties,
covenants, or undertakings, other than those expressly
set forth or referred to in this Voting Agreement
including the exhibits and the documents and
instruments referred to in this Voting Agreement.
5.6 Assignment; Binding Effect. Neither this
Voting Agreement nor any right, interest or obligation
hereunder shall be assigned by any of the parties
without the prior written consent of the other
parties. This Voting Agreement shall be binding upon
and inure to the benefit of the parties and their
respective successors and permitted assigns. This
Voting Agreement is not intended to confer any rights
or remedies upon any Person other than the parties.
5.7 Specific Performance. The parties agree that
irreparable damage would occur in the event that any
provision of this Voting Agreement was, or is, not
performed in accordance with its specific terms or
was, or is, otherwise breached. Stockholder agrees
that, in the event of any breach or threatened breach
by Stockholder of any covenant or obligation contained
in this Voting Agreement, Buyer shall be entitled (in
addition to any other remedy that may be available to
it, including monetary damages) to (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. 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 0, and Stockholder irrevocably waives any
right he may have to require the obtaining, furnishing
or posting of any such bond or similar instrument.
5.8 Counterparts. This Voting 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 Consent and Waiver. Stockholder hereby gives
any consents or waivers that are required for the
consummation of the Merger or the entering into of the
Merger Agreement under the terms of any agreement to
which Stockholder is a party or pursuant to any other
rights Stockholder may have to consent to or approve
the consummation of the Merger or the entering into of
the Merger Agreement.
6. Definitions. For purposes of this Voting
Agreement:
6.1 "Expiration Date" shall mean the earlier of
(i) the date upon which the Merger Agreement is
terminated, or (ii) the Effective Time.
6.2 Stockholder shall be deemed to "Own" or to
have acquired "Ownership" of a security if Stockholder
is the: (i) record owner of such security; or (ii)
"beneficial owner" (within the meaning of Rule 13d-3
under the Securities Exchange Act of 1934, as amended)
of such security; provided, however, that Stockholder
shall not be deemed to Own a security solely because
of Stockholder's status as an executive officer,
director, partner or member of a Person that owns such
security.
6.3 "Subject Securities" shall mean: (i) all
securities of Parent (including all shares of Parent
Common Stock and all options, warrants and other
rights to acquire shares of Parent Common Stock) Owned
by Stockholder as of the date of this Agreement; and
(ii) all additional securities of the Company
(including all additional shares of Parent Common
Stock and all additional options, warrants and other
rights to acquire shares of Parent Common Stock) of
which Stockholder acquires Ownership during the period
from the date of this Agreement through the Expiration
Date.
6.4 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)
reduces such Person's beneficial ownership interest in
or risk relating to any such security.
IN WITNESS WHEREOF, Company and Stockholder
have caused this Voting Agreement to be executed as of
the date first written above.
COMPANY CONDUCTUS, INC.
_______________________________________
Signature
_______________________________________
Name
_______________________________________
Title
Stockholders
Address for Notice: WILMINGTON SECURITIES, INC.
Wilmington Securities, Inc.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By ____________________________________
Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, President
Address for Notice: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ AND C. G.
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ GREFENSTETTE, TRUSTEES OF THE ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ TRUST
The ▇▇▇▇▇▇▇ Company U/A/T DATED NOVEMBER 18, 1985
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By ____________________________________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
Address for Notice: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇. ▇. ▇▇▇▇▇▇, TRUSTEES U/A/T
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ DATED DECEMBER 30, 1976 FOR THE CHILDREN OF ▇▇▇▇▇▇ ▇▇▇
The ▇▇▇▇▇▇▇ Company ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By ____________________________________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
By ____________________________________
▇. ▇. ▇▇▇▇▇▇, Trustee
Address for Notice: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇. ▇. ▇▇▇▇▇▇, TRUSTEES U/A/T
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ DATED DECEMBER 30, 1976 FOR THE CHILDREN OF ▇▇▇▇▇▇
The ▇▇▇▇▇▇▇ Company ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By ____________________________________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
By ____________________________________
▇. ▇. ▇▇▇▇▇▇, Trustee
Address for Notice: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇. ▇. ▇▇▇▇▇▇, TRUSTEES U/A/T
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ DATED DECEMBER 30, 1976 FOR THE CHILDREN OF ▇▇▇▇▇ ▇▇▇
The ▇▇▇▇▇▇▇ Company ▇▇▇▇▇▇▇, JR.
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By ____________________________________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
By ____________________________________
▇. ▇. ▇▇▇▇▇▇, Trustee
Address for Notice: ▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇ AND ▇. ▇. ▇▇▇▇▇▇, TRUSTEES U/A/T
c/o ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇ DATED DECEMBER 30, 1976 FOR THE CHILDREN OF ▇▇▇▇▇▇▇
The ▇▇▇▇▇▇▇ Company ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ By ____________________________________
▇. ▇. ▇▇▇▇▇▇▇▇▇▇▇▇, Trustee
By ____________________________________
▇. ▇. ▇▇▇▇▇▇, Trustee