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Exhibit 2.2
VOTING
AGREEMENT
THIS VOTING AGREEMENT (the
“ Agreement ”) dated March 26, 2008 among
S&G Company, Ltd. (“ S&G ”) and the
persons and entities listed in Schedule I hereto (each a “
Shareholder ,” and collectively, the “
Shareholders ”).
W I T N E S S E T
H:
WHEREAS, concurrently
herewith, S&G and Peak International Ltd., a company
incorporated under the laws of Bermuda (“ Peak
”), are entering into an Agreement and Plan of Amalgamation
(as such agreement may hereafter be amended from time to time, the
“ Amalgamation Agreement ”), pursuant to which
Peak and a wholly owned subsidiary of S&G will amalgamate and
merge with each other pursuant to Section 104 of the Bermuda
Act (the “ Amalgamation ”)
WHEREAS, as an inducement and
a condition to entering into the Amalgamation Agreement, S&G
has required that the Shareholders agree, and the Shareholders have
agreed, to enter into this Agreement;
NOW, THEREFORE, in
consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby
agree as follows:
1. Certain Definitions
. For purposes of this Agreement:
(a) Capitalized terms used
and not defined herein have the respective meanings ascribed to
them in the Amalgamation Agreement.
(b) “ Peak
Shares ” shall mean at any time, the Common Shares, par
value USD 0.01 per share, of Peak, as may be adjusted from
time to time to give effect to any stock dividend, distribution,
stock split, recapitalization, combination, exchange of shares or
the like.
(c) “ Person
” shall mean an individual, corporation, partnership, limited
liability company, joint venture, association, trust,
unincorporated organization or other entity.
2. Provisions Concerning
Peak Shares . Each Shareholder hereby agrees that during the
period commencing on the date hereof and continuing until the first
to occur of the Effective Time or termination of the Amalgamation
Agreement in accordance with its terms (such date being referred to
herein as the “ Expiration Date ”), at any
meeting of the holders of Peak Shares, however called, or in
connection with any written consent of the holders of Peak Shares,
such Shareholder shall vote (or cause to be voted) all Owned Shares
(as hereinafter defined) of which such Shareholder is the
registered holder and all Peak Shares such Shareholder may acquire
and become registered as the holder of such shares after the date
of this Agreement as a result of exercise of stock options or
otherwise (the “ Acquired Shares ”) in the
following manner: (i) in favor of the approval of the
Amalgamation and the Amalgamation Agreement and
the approval of the terms thereof and
each of the other actions contemplated by the Amalgamation
Agreement and this Agreement and any actions required in
furtherance thereof and hereof; (ii) against any action or
agreement that may result in or lead to or assist in causing a
material breach of any covenant, representation or warranty or any
other obligation or agreement of Peak under the Amalgamation
Agreement; and (iii) except as otherwise expressly agreed to
in writing in advance by S&G, against (A) any
extraordinary corporate transaction, such as a merger,
consolidation or other business combination involving Peak or its
subsidiaries (other than the Amalgamation and the transactions
contemplated by the Amalgamation Agreement); (B) a sale, lease
or transfer of a material amount of assets of Peak or its
subsidiaries, or a reorganization, recapitalization, dissolution or
liquidation of Peak or its Subsidiaries; (C) any change in the
present capitalization of Peak or any amendment of Peak’s
Memorandum of Association and Bylaws if such amendment is not
permitted by the Amalgamation Agreement; (D) any other
material change in Peak’s corporate structure or business if
such change is not permitted by the Amalgamation Agreement;
(E) any other action involving Peak or its subsidiaries which
is intended to impede, interfere with, delay, postpone, or
adversely affect the Amalgamation and the transactions contemplated
by this Agreement and the Amalgamation Agreement including, without
limitation, any action to approve or intended to facilitate any
other Acquisition Proposal (as defined in Section 5.5(a) of
the Amalgamation Agreement). No Shareholder shall enter into any
agreement or understanding with any person or entity or exercise
any rights (including appraisal rights) the effect of which would
be inconsistent with or violative of the provisions and agreements
referred to in this Section 2.
3. Appointment of
Proxy .
(a) Subject to
Section 7, each Shareholder hereby irrevocably grants to, and
appoints, Sungyuk Won and David Schulze, or any one of them, in
their respective capacities as officers of S&G, and any
individual who shall hereafter succeed to any such office of
S&G, and each of them individually, as such Shareholder’s
proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Shareholder, to vote the
Peak Shares held at the time of the relevant shareholder vote in
favor of the transactions contemplated by the Amalgamation
Agreement and otherwise in the manner set forth in Section 2
hereof. The grant shall be automatically revoked and of no further
force and effect from and after the Expiration Date.
(b) Each Shareholder
represents that any proxies heretofore given in respect of such
Shareholder’s Peak Shares are not irrevocable, and that any
such proxies are hereby revoked prior to the Expiration
Date.
(c) Each Shareholder
understands and acknowledges that S&G is entering into the
Amalgamation Agreement in reliance upon the Shareholder’s
execution and delivery of this Agreement.
4. Other Covenants,
Representations and Warranties of the Shareholders . Each
Shareholder hereby covenants, represents and warrants to S&G as
follows:
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(a) Ownership of
Shares . Such Shareholder is the registered holder of the
number of Peak Shares set forth opposite such Shareholder’s
name on Schedule I hereto under the heading “Owned
Shares” (collectively, the “ Owned Shares
”). On the date hereof, the number of shares set forth
opposite such Shareholder’s name on Schedule I hereto under
the heading “Owned Shares” constitute all of the Peak
Shares owned by such Shareholder. With respect to such
Shareholder’s Owned Shares, except as set forth on Schedule
I, such Shareholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in
Section 2 hereof, sole power of disposition and sole power to
agree to all of the matters set forth in this Agreement, with no
limitations, qualifications or restrictions on such rights, subject
to applicable securities laws and the terms of this
Agreement.
(b) Power; Binding
Agreement . Such Shareholder has the legal capacity (if an
individual) and power and authority (if an entity) to enter into
and perform all of such Shareholder’s obligations under this
Agreement. The execution, delivery and performance of this
Agreement by such Shareholder will not violate any other agreement
to which such Shareholder is a party which would adversely affect
such Shareholder’s ability to perform its obligations
hereunder, including, without limitation, any voting agreement,
partnership agreement, stockholders agreement or voting trust. This
Agreement has been duly and validly executed and delivered by such
Shareholder and constitutes a valid and binding agreement of such
Shareholder, enforceable against such Shareholder in accordance
with its terms, except to extent the enforcement thereof may be
limited by bankruptcy, insolvency, reorganization, moratorium and
similar laws affecting the enforcement of creditors’ rights
or the exercise by courts of equitable powers. There is no
beneficiary or holder of a voting trust certificate or other
interest of any trust of which such Shareholder is trustee whose
consent is required for the execution and delivery of this
Agreement or the consummation by such Shareholder of the
transactions contemplated hereby.
(c) No Conflicts .
Except for filings, permits, authorizations, consents and approvals
under the federal securities laws, (i) no filing with, and no
permit, authorization, consent or approval of, any state or federal
public body or authority is necessary for the execution of this
Agreement by such Shareholder and the consummation by such
Shareholder of the transactions contemplated hereby and
(ii) none of the execution and delivery of this Agreement by
such Shareholder, the consummation by such Shareholder of the
transactions contemplated hereby or compliance by such Shareholder
with any of the provisions hereof shall (A) conflict with or
result in any breach of any organizational documents applicable to
such Shareholder, (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a
default (or give rise to any third party right of termination,
cancellation, material modification or acceleration) under any of
the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement,
understanding, agreement or other instrument or obligation of any
kind to which such Shareholder is a party or by which such
Shareholder or any of such Shareholder’s properties or assets
may be bound, or (C) violate any order, writ, injunction,
decree, statute, rule or regulation applicable to such Shareholder
or any of such Shareholder’s properties or assets, in each
case which would adversely affect such Shareholder’s ability
to perform its obligations hereunder.
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(d) No Encumbrances .
Except as applicable in connection with the transactions
contemplated hereby, such Shareholder’s (i) Owned Shares
and the certificates representing such Owned Shares are now and
will be, and (ii) the Acquired Shares and the certificates
representing such Acquired Shares will be, at all times during the
term hereof, beneficially
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