EXHIBIT (C)(3)
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of January 18, 1999, by and
---------
among STEAG ELECTRONIC SYSTEMS GmbH, a German business entity ("Parent"), MIG
------
ACQUISITION CORPORATION, a Delaware corporation and a wholly-owned subsidiary of
Parent ("Newco"), and Arnon And ▇▇▇▇▇ Gat, ("Shareholder").
----- -----------
WHEREAS, Shareholder is, as of the date hereof, the record and beneficial
owner of 1,138,905 shares of common stock, no par value per share (the "Common
------
Stock") of , AG Associates, Inc., a California corporation (the "Company"); and
-----
WHEREAS, Parent, Newco and the Company concurrently herewith are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
------
Agreement"), which provides, among other things, for the acquisition of the
---------
Company by Parent by means of a cash tender offer (the "Offer") for any and all
-----
of the outstanding shares of Common Stock and for the subsequent merger (the
"Merger") of Newco with and into the Company upon the terms and subject to the
------
conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Newco to enter
into the Merger Agreement, and in order to induce Parent and Newco to enter into
the Merger Agreement, Shareholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Newco of the Merger Agreement and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
hereby represents and warrants to Parent and Newco as follows:
(a) Shareholder is the record and beneficial owner of 1,138,905
shares of Common Stock (as may be adjusted from time to time pursuant to Section
6 hereof, the "Shares").
------
(b) This Agreement has been duly executed and delivered by
Shareholder and constitutes the legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will result
in a violation of, or a default
1
under, or conflict with, any contract, trust, commitment, agreement,
understanding, arrangement or restriction of any kind to which Shareholder is a
party or bound or to which the Shares are subject. To the best of Shareholder's
knowledge, consummation by Shareholder of the transactions contemplated hereby
will not violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or regulation
applicable to Shareholder or the Shares, except for any necessary filing under
the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR
---
Act"), or state takeover laws.
---
(d) The Shares and the certificates representing Shares are now and
at all times during the term hereof will be held by Shareholder, or by a nominee
or custodian for the benefit of Shareholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever.
SECTION 2. Representations and Warranties of Parent and Newco. Each of
--------------------------------------------------
Parent and Newco hereby, jointly and severally, represents and warrants to
Shareholder as follows:
(a) Each of Parent and Newco is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by each of Parent and Newco and constitutes the legal, valid and binding
obligation of each of Parent and Newco, enforceable against each of them in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by each of Parent and Newco of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which each of Parent and Newco is a party or bound.
To the best knowledge of each of Parent and Newco, consummation by each of
Parent and Newco of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to each of Parent and
Newco except for any necessary filing under the HSR Act or state takeover laws.
SECTION 3. Purchase and Sale of Shares. Shareholder hereby agrees that
---------------------------
it shall, and direct any nominee, custodian or trustee to, tender the Shares
into the Offer; provided that Newco's obligation to accept for payment and pay
--------
for the Shares in the Offer is subject to all the terms and conditions of the
Offer set forth in the Merger Agreement and Annex II thereto. Simultaneously
with or prior to its tender of the Shares into the Offer, Shareholder shall, if
2
applicable, deliver to Newco an affidavit stating, under penalty of perjury, the
Shareholder's U.S. taxpayer identification number and that the Shareholder is
not a foreign person, pursuant to Section 1445(b)(2) of the Internal Revenue
Code of 1986, as amended.
SECTION 4. Transfer of Shares. Prior to the termination of this
------------------
Agreement, except as otherwise provided herein and in the Merger Agreement,
Shareholder shall not: (i) transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the Shares or any
interest therein; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Shares or any
interest therein; (iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to the Shares; or (iv) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby.
SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
------------------------------------------------
(a) Shareholder hereby irrevocably grants to, and appoints, Parent
and any nominee thereof, Shareholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of Shareholder, to
vote the Shares, or grant a consent or approval in respect of the Shares, in
connection with any meeting of the Shareholders of the Company, if applicable,
(i) in favor of the Merger and (ii) against any action or agreement which would
impede, interfere with or prevent the Merger, including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company and a third party or any other proposal of a third party to acquire
the Company.
(b) Shareholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that such proxies are hereby
revoked.
(c) Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of Shareholder under this Agreement. Shareholder hereby further
affirms that the irrevocable proxy is coupled with an interest and, except as
set forth in Section 8 hereof, is intended to be irrevocable in accordance with
the provisions of Section 418 of the California General Corporation Law.
SECTION 6. Certain Events. In the event of any stock split, stock
--------------
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock, or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by Shareholder, the number of Shares shall be adjusted appropriately,
and this Agreement and the obligations hereunder shall attach to any additional
shares of Common Stock or other securities or rights of the Company issued to or
acquired by Shareholder.
SECTION 7. Further Assurances. Shareholder shall, upon request of Parent
------------------
or Newco, execute and deliver any additional documents and take such further
actions as may reasonably be
3
deemed by Parent or Newco to be necessary or desirable to carry out the
provisions hereof and to vest the power to vote the Shares as contemplated by
Section 5 hereof in Parent.
SECTION 8. Covenants.
---------
(a) From and after the date hereof to the Effective Time, Shareholder
shall not, and shall not permit the Company to, make any elections, or change
any existing elections, with respect to Taxes (as that term is defined in the
Merger Agreement), without the prior written consent of Parent.
(b) From and after the date that Newco shall have purchased and paid
for all of the Shares of Shareholder pursuant to Section 3 hereof, Shareholder
shall make available to Parent any and all records and other materials in
Shareholder's possession or control that relate to any of the Company's filings
or returns relating to Taxes affecting the Company, or any other records
relating to Taxes of the Company or for which the Company may be responsible.
(c) Shareholder shall continue to reimburse the Company for any
foregone federal tax deductions relating to state income or franchise taxes for
any period ending on or before the Effective Time (as that term is defined in
the Merger Agreement) during which the Company was part of a California unitary
tax filing with Shareholder or any affiliate of Shareholder.
SECTION 9. Indemnification. From and after the Closing Date, Shareholder
---------------
shall protect, defend, indemnify and hold harmless Parent and Company from any
claims, liabilities, costs or expenses arising out of all Taxes (including
without limitation any obligation to contribute to the payment of any Taxes
determined on a consolidated, combined or unitary basis with respect to a group
of corporations that includes or included the Company to the extent that such
obligation to contribute exceeds an amount attributable to Taxes of or
attributable to the Company or its Subsidiaries) which are imposed on the
Shareholder or any member (other than the Company or its Subsidiaries) of the
consolidated, unitary or combined group which includes or included the Company
or its Subsidiaries that Parent or the Company or its Subsidiaries pay, or
otherwise satisfy in whole or in part, or that result in liens or encumbrances
on any assets of the Company or its Subsidiaries or Parent.
SECTION 10. Termination. This Agreement, and all rights and obligations
-----------
of the parties hereunder, shall terminate immediately upon the earlier of (a)
the date upon which the Merger Agreement is terminated in accordance with its
terms (i) by either Parent and Newco, on the one hand, or the Company, on the
other hand, or (ii) by mutual written consent of Parent, Newco and the Company,
or (b) the date that Newco shall have purchased and paid for all of the Shares
of Shareholder pursuant to Section 3 hereof; provided, however, that (A) the
indemnification obligation set forth in Section 9 hereof shall survive for a
period equal to (i) three years following the Effective Time and (ii) the
applicable statute of limitations, respectively and (B) the covenants set forth
in Sections 8(a) through (c) shall survive without limitation. The proxy given
pursuant to Section 5 hereof shall be automatically revoked and be of no further
force or effect, without further action on the part of any party hereto,
immediately upon the termination of this Agreement.
4
SECTION 11. Expenses. All fees and expenses incurred by any one party
--------
hereto shall be borne by the party incurring such fees and expenses.
SECTION 12. Public Announcements. Each of Parent, Newco and the Company
--------------------
agrees that it will not issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated hereby
without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure can be
-------- -------
made without obtaining such prior consent if (i) the disclosure is required by
law or by obligations imposed pursuant to any listing agreement with the Nasdaq
National Market and (ii) the party making such disclosure has first used its
best efforts to consult with the other party about the form and substance of
such disclosure.
SECTION 13. Miscellaneous.
-------------
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
business days after the day when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
(A) if to Shareholder to:
Arnon and ▇▇▇▇▇ Gat
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇. ▇▇▇▇▇ Gat
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and
5
(B) if to Parent or Newco, to:
STEAG Electronic Systems GmbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇
▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 011-49-201-801-6684
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to:
Northrop, Stradar & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall be considered one
and the same agreement.
(e) This Agreement (including the Merger Agreement and any other
documents and instruments referred to herein) constitutes the entire agreement,
and supersedes all prior agreements and understandings, whether written and
oral, among the parties hereto with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance
with, the laws of the State of California without giving effect to the
principles of conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding
6
sentence, this Agreement will be binding upon, inure to the benefit of and be
enforceable by, the parties and their respective successors and assigns, and the
provisions of this Agreement are not intended to confer upon any person other
than the parties hereto any rights or remedies hereunder.
(h) If any term, provision, covenant or restriction herein is held by
a court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against its regulatory policy, 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.
(i) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(ii) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement
in any action instituted in any state or federal court sitting in California.
The parties hereto consent to personal jurisdiction in any such action brought
in any state or federal court sitting in California and to service of process
upon it in the manner set forth in Section 11(b) hereof.
(j) No amendment, modification or waiver in respect of this Agreement
shall be effective against any party unless it shall be in writing and signed by
such party.
7
IN WITNESS WHEREOF, Parent, Newco and Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
STEAG Electronic Systems GmbH
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇
---------------------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer
STEAG Electronic Systems GmbH
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Officer with Statutory authority
MIG ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
---------------------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Chief Financial Officer
/s/ Arnon Gat
------------------------------------------
Name: Arnon Gat
/s/ ▇▇▇▇▇ Gat
------------------------------------------
Name: ▇▇▇▇▇ Gat
January 14, 1999
STEAG Electronic Systems GmbH
MIG Acquisition Corporation
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Ladies and Gentlemen:
We understand that you intend to enter into an Agreement and Plan of Merger
with AG Associates, Inc. (the "Company"), providing for a cash tender offer (the
"Offer") for the outstanding shares of common stock of the Company by MIG
Acquisition Corporation ("Newco"), and the subsequent merger (the "Merger") of
Newco with and into the Company. We further understand that you have asked
Poalim Investments LTD. ("Poalim") and certain other significant shareholders of
the Company (a) to agree to tender into the Offer any AG Associates shares such
person owns, and (b) to grant to STEAG Electronic Systems GmbH ("Parent") an
irrevocable proxy to vote such person's shares in favor of the Merger.
By delivering this letter, we hereby agree that, in the event you enter
into an Agreement and Plan of Merger with the Company providing for the Offer
and the Merger, Poalim will tender into the Offer 520,000 shares of which Poalim
has record or beneficial ownership (The "Shares"). Poalim will not, at any time
prior to June 30, 1999, transfer or consent to transfer any of the Shares to any
person, enter into any contract option or agreement with respect to the Shares
or take any other action that would in any way restrict, limit or interfere with
the tendering the Shares into the Offer.
Poalim has granted to ▇▇. ▇▇▇▇▇ Gat its proxy (which shall be irrevocable
prior to June 30, 1999) to vote the Shares in favor of the Merger and against
any action or agreement which would impede, interfere with or prevent the
Merger.
Very truly yours,
POALIM INVESTMENTS LTD.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
------------------ ------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Title: Chief executive Officer Title: Vice - President
PROXY
The undersigned hereby constitutes and appoints ▇▇. ▇▇▇▇▇ Gat, his lawful
agent and proxy with full power of substitution, to represent the undersigned,
and to vote 520,000 shares of common stock (the "Shares") of AG Associates,
Inc., a California corporation (the "Company"), of which the undersigned has
record or beneficial ownership or in respect of which the undersigned otherwise
may be entitled to vote at a shareholders' meeting (a) in favor of the merger of
MIG Acquisition Corporation ("Newco") with and into the Company, pursuant to an
Agreement and Plan of Merger made by and among STEAG Electronic Systems GmbH
("Parent"), Newco and the Company (the "Merger Agreement"), concurrently with
the delivery of this Proxy (the "Merger"); and (b) against any action or
agreement which would impede, interfere with or prevent the Merger.
This Proxy is coupled with an interest and is given to secure the
performance of the undersigned's obligations under that certain letter dated
January 14, 1999 from the undersigned to Parent and Newco. This Proxy shall
remain in effect and shall be irrevocable in accordance with the provisions of
Section 705 of the California General Corporation Law from the date it is
delivered by the undersigned to Dr. Gat until the earlier to occur of (a) the
Merger and (b) June 30, 1999.
Dated: January 14, 1999
POALIM INVESTMENTS LTD.
By: /s/ ▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
------------------------ -------------------
Name: ▇. ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Name: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Title: Vice - President Title: Chief Executive Officer
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of January 18, 1999, by and
---------
among STEAG ELECTRONIC SYSTEMS GMBH, a German business entity ("Parent"), MIG
------
ACQUISITION CORPORATION, a Delaware corporation and a wholly-owned subsidiary of
Parent ("Newco"), and Clal Electronics Industries Ltd. ("Shareholder").
----- -----------
WHEREAS, Shareholder is, as of the date hereof, the record and beneficial
owner of 550,000 shares of common stock, no par value per share (the "Common
------
Stock") of , AG ASSOCIATES, INC., a California corporation (the "Company"); and
-----
WHEREAS, Parent, Newco and the Company concurrently herewith are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
------
Agreement"), which provides, among other things, for the acquisition of the
---------
Company by Parent by means of a cash tender offer (the "Offer") for any and all
-----
of the outstanding shares of Common Stock and for the subsequent merger (the
"Merger") of Newco with and into the Company upon the terms and subject to the
------
conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Newco to enter
into the Merger Agreement, Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Newco of the Merger Agreement and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
hereby represents and warrants to Parent and Newco as follows:
(a) Shareholder is the record and beneficial owner of 550,000 shares
of Common Stock (as may be adjusted from time to time pursuant to Section 6
hereof, the "Shares").
------
(b) Shareholder is a corporation duly organized, validly existing and
in good standing under the laws of Israel has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(c) This Agreement has been duly authorized, executed and delivered
by Shareholder and constitutes the legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses
1
and would be subject to the discretion of the court before which any proceeding
therefor may be brought.
(d) Neither the execution and delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will result
in a violation of, or a default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Shareholder is a party or bound or to which the Shares are subject. To the
best of Shareholder's knowledge, consummation by Shareholder of the transactions
contemplated hereby will not violate, or require any consent, approval, or
notice under, any provision of any judgment, order, or decree or under any
Israeli law, statute, law, rule or regulation applicable to Shareholder or the
Shares, except for any necessary filing under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust
Improvements Act of 1976, as amended (the "HSR Act"), or state takeover laws.
-------
(e) The Shares and the certificates representing Shares are now and
at all times during the term hereof will be held by Shareholder, or by a nominee
or custodian for the benefit of Shareholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever, other than restrictions,
if any, under the Company's Article of Association and under the securities
laws.
SECTION 2. Representations and Warranties of Parent and Newco. Each of
--------------------------------------------------
Parent and Newco hereby, jointly and severally, represents and warrants to
Shareholder as follows:
(a) Each of Parent and Newco is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by each of Parent and Newco and constitutes the legal, valid and binding
obligation of each of Parent and Newco, enforceable against each of them in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by each of Parent and Newco of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which each of Parent and Newco is a party or bound.
To the best knowledge of each of Parent and Newco, consummation by each of
Parent and Newco of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any judgment,
order, decree, statute, law,
2
rule or regulation applicable to each of Parent and Newco except for any
necessary filing under the HSR Act or state takeover laws.
SECTION 3. Purchase and Sale of Shares. Shareholder hereby agrees that it
---------------------------
shall, and direct any nominee, custodian or trustee to, tender the Shares into
the Offer; provided that Newco's obligation to accept for payment and pay for
--------
the Shares in the Offer is subject to all the terms and conditions of the Offer
set forth in the Merger Agreement and Annex II thereto. Simultaneously with or
prior to its tender of the Shares into the Offer, Shareholder shall, if
applicable, deliver to Newco an affidavit stating, under penalty of perjury, the
Shareholder's U.S. taxpayer identification number. If the terms of the Offer are
amended and the price offered for the Shares in the Offer is increased,
Shareholder shall benefit from such amended terms and price.
SECTION 4. Transfer of Shares. Prior to the termination of this
------------------
Agreement, except as otherwise provided herein and in the Merger Agreement,
Shareholder shall not: (i) transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the Shares or any
interest therein; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Shares or any
interest therein; or (iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to the Shares.
SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
------------------------------------------------
(a) Shareholder hereby irrevocably grants to, and appoints, Parent
and any nominee thereof, Shareholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of Shareholder, to
vote the Shares, or grant a consent or approval in respect of the Shares, in
connection with any meeting of the Shareholders of the Company, if applicable,
(i) in favor of the Merger and (ii) against any action or agreement which would
impede, interfere with or prevent the Merger, including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company and a third party or any other proposal of a third party to acquire
the Company.
(b) Shareholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that such proxies are hereby
revoked.
(c) Shareholder hereby affirms that the irrevocable proxy set forth
in this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of Shareholder under this Agreement. Shareholder hereby further
affirms that the irrevocable proxy is coupled with an interest and, except as
set forth in Section 8 hereof, is intended to be irrevocable in accordance with
the provisions of Section 418 of the California General Corporation Law.
SECTION 6. Certain Events. In the event of any stock split, stock
--------------
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock, or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by Shareholder, the number of Shares shall be adjusted appropriately,
and this Agreement and the obligations hereunder shall attach to any additional
shares of
3
Common Stock or other securities or rights of the Company issued to or acquired
by Shareholder.
SECTION 7. Further Assurances. Shareholder shall, upon request of Parent
------------------
or Newco, execute and deliver any additional documents and take such further
actions as may reasonably be deemed to be necessary or desirable to carry out
the provisions hereof and to vest the power to vote the Shares as contemplated
by Section 5 hereof in Parent, provided such activities do not expose
Shareholder to any liability or expenditure.
SECTION 8. Covenants.
---------
From and after the date hereof to the Effective Time, Shareholder shall
not, and shall not permit the Company * to, make any
elections, or change any existing elections, with respect to Taxes (as that term
is defined in the Merger Agreement), without the prior written consent of
Parent.
SECTION 9. Termination. This Agreement, and all rights and obligations of
-----------
the parties hereunder, shall terminate immediately upon the earlier of (a) the
date upon which the Merger Agreement is terminated in accordance with its terms
(i) by either Parent and Newco, on the one hand, or the Company, on the other
hand, or (ii) by mutual written consent of Parent, Newco and the Company, or (b)
the date that Newco shall have purchased and paid for all of the Shares of
Shareholder pursuant to Section 3 hereof; or (c) on June 30, 1999, provided,
however, that the covenants set forth in Section 8 shall survive without
limitation. The proxy given pursuant to Section 5 hereof shall be automatically
revoked and be of no further force or effect, without further action on the part
of any party hereto, immediately upon the termination of this Agreement.
SECTION 10. Expenses. All fees and expenses incurred by any one party
--------
hereto shall be borne by the party incurring such fees and expenses.
SECTION 11. Public Announcements. Each of Parent, Newco and the Company
--------------------
agrees that it will not issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated hereby
without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure can be
-------- -------
made without obtaining such prior consent if (i) the disclosure is required by
law or by obligations imposed pursuant to any listing agreement with the Nasdaq
National Market or Israeli law and (ii) the party making such disclosure has
first used its best efforts to consult with the other party about the form and
substance of such disclosure.
SECTION 12. Miscellaneous.
-------------
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
business days after the day when mailed in the United States by
*(to the extent its holdings in the Company enable it to control the Company's
actions in this matter)
4
certified or registered mail, postage prepaid, addressed at the following
addresses (or at such other address for a party as shall be specified by like
notice):
(A) if to Shareholder to:
Clal Electronics Industries Ltd.
Clal Atidin Tower
Tel Aviv, Israel
Telephone: ▇▇▇-▇-▇▇▇-▇▇▇▇
Facsimile: 972-3-765-0360
Attention: ▇▇▇ ▇▇▇▇, General Counsel
(B) if to Parent or Newco, to:
STEAG Electronic Systems GmbH
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇
▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇▇-▇▇▇-▇▇▇▇
Facsimile: 011-49-201-801-6684
Attention: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
with a copy to:
Northrop, Stradar & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement
(d) This Agreement may be executed in two or more counterparts,
each of which shall be deemed an original but all of which shall be considered
one and the same agreement.
5
(e) This Agreement (including the Merger Agreement and any other
documents and instruments referred to herein) constitutes the entire agreement,
and supersedes all prior agreements and understandings, whether written and
oral, among the parties hereto with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in
accordance with, the laws of the State of California without giving effect to
the principles of conflicts of laws thereof
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns, and the provisions of this Agreement are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(h) If any term, provision, covenant or restriction herein is
held by a court of competent jurisdiction or other authority to be invalid, void
or unenforceable or against its regulatory policy, 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.
(i) Each of the parties hereto acknowledges and agrees that in
the event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(ii) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement
in any action instituted in any state or federal court sitting in California.
The parties hereto consent to personal jurisdiction in any such action brought
in any state or federal court sitting in California and to service of process
upon it in the manner set forth in Section 12(b) hereof.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
6
IN WITNESS WHEREOF, Parent, Newco and Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
STEAG ELECTRONIC SYSTEMS GMBH
By:/s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇
--------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇
Title:Chief Financial Officer
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Title: Officer with Statutory Authority
MIG ACQUISITION CORPORATION
By:/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
Title: Chief Financial Officer
CLAL ELECTRONICS INDUSTRIES LTD.
By:/s/ ▇▇▇ ▇▇▇▇
---------------------------
Name: ▇▇▇ ▇▇▇▇
Title: General Counsel
CLAL ELECTRONICS INDUSTRIES LTD.
By:/s/ ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇ ▇▇▇-▇▇▇▇▇▇
Title: Chairman of the Board of Directors
7
VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of December 16, 1998, by and
---------
among Steag Electronics Systems, GmbH, a German corporation ("Parent"), A.G.
------
Acquisition Corp., a Delaware corporation and a wholly-owned subsidiary of
Parent ("Newco"), and Canon Sales Co., Inc., a Japanese corporation and Nippon
-----
Typewriter Company Ltd., a Japanese corporation and a 52% owned subsidiary of
Canon Sales Co., Inc. ("Shareholder").
-----------
WHEREAS, Shareholder is, as of the date hereof, the record and beneficial
owner of 604,166 shares of common stock, no par value per share (the "Common
------
Stock") of A.G. Associates, Inc., a California corporation (the "Company"); and
-----
WHEREAS, Parent, Newco and the Company concurrently herewith are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
------
Agreement"), which provides, among other things, for the acquisition of the
---------
Company by Parent by means of a cash tender offer (the "Offer") for any and all
-----
of the outstanding shares of Common Stock at the price of $5.50 per share and
for the subsequent merger (the "Merger") of Newco with and into the Company upon
------
the terms and subject to the conditions set forth in the Merger Agreement; and
WHEREAS, as a condition to the willingness of Parent and Newco to enter
into the Merger Agreement, and in order to induce Parent and Newco to enter into
the Merger Agreement, Shareholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Newco of the Merger Agreement and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Shareholder. Shareholder
---------------------------------------------
hereby represents and warrants to Parent and Newco as follows:
(a) Shareholder is the record and beneficial owner of 604,166 shares of
Common Stock (as may be adjusted from time to time pursuant to Section 6 hereof,
the "Shares").
------
(b) Shareholder is a corporation duly organized, validly existing and
in good standing under the laws of Japan, has all requisite corporate power and
authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby, and has taken all necessary corporate action
to authorize the execution, delivery and performance of this Agreement.
(c) This Agreement has been duly authorized, executed and delivered by
Shareholder and constitutes the legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
1
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(d) Neither the execution and delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will result
in a violation of, or a default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Shareholder is a party or bound or to which the Shares are subject. To
the best of Shareholder's knowledge, consummation by Shareholder of the
transactions contemplated hereby will not violate, or require any consent,
approval, or notice under, any provision of any judgment, order, decree,
statute, law, rule or regulation applicable to Shareholder or the Shares, except
for any necessary filing under the ▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act
of 1976, as amended (the "HSR Act"), or state takeover laws.
-------
(e) The Shares and the certificates representing Shares are now and at
all times during the term hereof will be held by Shareholder, or by a nominee or
custodian for the benefit of Shareholder, free and clear of all liens, claims,
security interests, proxies, voting trusts or agreements, understandings or
arrangements or any other encumbrances whatsoever.
SECTION 2. Representations and Warranties of Parent and Newco. Each of
--------------------------------------------------
Parent and Newco hereby, jointly and severally, represents and warrants to
Shareholder as follows:
(a) Each of Parent and Newco is a corporation duly organized, validly
existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered by
each of Parent and Newco and constitutes the legal, valid and binding obligation
of each of Parent and Newco, enforceable against each of them in accordance with
its terms, except (i) as limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other laws of general application affecting
enforcement of creditors' rights generally and (ii) the availability of the
remedy of specific performance or injunctive or other forms of equitable relief
may be subject to equitable defenses and would be subject to the discretion of
the court before which any proceeding therefor may be brought.
2
(c) Neither the execution and delivery of this Agreement nor the
consummation by each of Parent and Newco of the transactions contemplated hereby
will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which each of Parent and Newco is a party or bound.
To the best knowledge of each of Parent and Newco, consummation by each of
Parent and Newco of the transactions contemplated hereby will not violate, or
require any consent, approval, or notice under, any provision of any judgment,
order, decree, statute, law, rule or regulation applicable to each of Parent and
Newco except for any necessary filing under the HSR Act or state takeover laws.
SECTION 3. Purchase and Sale of Shares. Shareholder hereby agrees that it
---------------------------
shall, and direct any nominee, custodian or trustee to, tender the Shares into
the Offer; provided that Newco's obligation to accept for payment and pay for
--------
the Shares in the Offer is subject to all the terms and conditions of the Offer
set forth in the Merger Agreement and Annex II thereto. Simultaneously with or
prior to its tender of the Shares into the Offer, Shareholder shall, if
applicable, deliver to Newco an affidavit stating, under penalty of perjury, the
Shareholder's U.S. taxpayer identification number.
SECTION 4. Transfer of Shares. Prior to the termination of this
------------------
Agreement, except as otherwise provided herein and in the Merger Agreement,
Shareholder shall not: (i) transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the Shares or any
interest therein; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Shares or any
interest therein; (iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to the Shares; or (iv) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby.
SECTION 5. Grant of Irrevocable Proxy; Appointment of Proxy.
------------------------------------------------
(a) Shareholder hereby irrevocably grants to, and appoints, Parent and
any nominee thereof, Shareholder's proxy and attorney-in-fact (with full power
of substitution), for and in the name, place and stead of Shareholder, to vote
the Shares, or grant a consent or approval in respect of the Shares, in
connection with any meeting of the Shareholders of the Company, if applicable,
(i) in favor of the Merger and (ii) against any action or agreement which would
impede, interfere with or prevent the Merger, including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company and a third party or any other proposal of a third party to acquire
the Company.
(b) Shareholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that such proxies are hereby
revoked.
(c) Shareholder hereby affirms that the irrevocable proxy set forth in
this Section 5 is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of Shareholder under this Agreement. Shareholder hereby further
affirms that the irrevocable proxy is coupled with an
3
interest and, except as set forth in Section 8 hereof, is intended to be
irrevocable in accordance with the provisions of Section 418 of the California
General Corporation Law.
SECTION 6. Certain Events. In the event of any stock split, stock
--------------
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock, or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by Shareholder, the number of Shares shall be adjusted appropriately,
and this Agreement and the obligations hereunder shall attach to any additional
shares of Common Stock or other securities or rights of the Company issued to or
acquired by Shareholder.
SECTION 7. Further Assurances. Shareholder shall, upon request of Parent
------------------
and Newco, execute and deliver any additional documents and take such further
actions as may reasonably be deemed by Parent and Newco to be necessary or
desirable to carry out the provisions hereof and to vest the power to vote the
Shares as contemplated by Section 5 hereof in Parent.
SECTION 8. Covenants.
---------
(a) From and after the date hereof to the Effective Time, Shareholder
shall not, and shall not permit the Company to, make any elections, or change
any existing elections, with respect to Taxes (as that term is defined in the
Merger Agreement), without the prior written consent of Parent.
(b) From and after the date that Newco shall have purchased and paid
for all of the Shares of Shareholder pursuant to Section 3 hereof, Shareholder
shall make available to Parent any and all records and other materials in
Shareholder's possession or control that relate to any of the Company's filings
or returns relating to Taxes affecting the Company, or any other records
relating to Taxes of the Company or for which the Company may be responsible.
SECTION 9. DELETED
SECTION 10. Termination. This Agreement, and all rights and obligations
-----------
of the parties hereunder, shall terminate immediately upon the earlier of (a)
the date upon which the Merger Agreement is terminated in accordance with its
terms (i) by either Parent and Newco, on the one hand, or the Company, on the
other hand, or (ii) by mutual written consent of Parent, Newco and the Company,
or (b) the date that Newco shall have purchased and paid for all of the Shares
of Shareholder pursuant to Section 3 hereof; provided, however, that (A) the
indemnification obligation set forth in Section 9 hereof shall survive for a
period equal to (i) three years following the Effective Time and (ii) the
applicable statute of limitations, respectively and (B) the covenants set forth
in Sections 8(a) through (c) shall survive without limitation. The proxy given
pursuant to Section 5 hereof shall be automatically revoked and be of no further
force or effect, without further action on the part of any party hereto,
immediately upon the termination of this Agreement.
SECTION 11. Expenses. All fees and expenses incurred by any one party
--------
hereto shall be borne by the party incurring such fees and expenses.
4
SECTION 12. Public Announcements. Each of Parent, Newco and the Company
--------------------
agrees that it will not issue any press release or otherwise make any public
statement with respect to this Agreement or the transactions contemplated hereby
without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure can be
-------- -------
made without obtaining such prior consent if (i) the disclosure is required by
law or by obligations imposed pursuant to any listing agreement with the Nasdaq
National Market and (ii) the party making such disclosure has first used its
best efforts to consult with the other party about the form and substance of
such disclosure.
SECTION 13. Miscellaneous.
-------------
(a) Capitalized terms used and not otherwise defined in this Agreement
shall have the respective meanings assigned to such terms in the Merger
Agreement.
(b) All notices and other communications hereunder shall be in writing
and shall be deemed given upon (i) transmitter's confirmation of a receipt of a
facsimile transmission, (ii) confirmed delivery by a standard overnight carrier
or when delivered by hand or (iii) the expiration of five business days after
the day when mailed in the United States by certified or registered mail,
postage prepaid, addressed at the following addresses (or at such other address
for a party as shall be specified by like notice):
(A) if to Shareholder to:
Canon Sales Company, Inc.
▇▇-▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
Telephone: ▇▇▇ ▇▇▇-▇-▇▇▇-▇▇▇▇-▇
Facsimile:_______________________
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇
with a copy to:
▇▇▇▇▇▇ ▇▇▇▇ & Priest LLP
▇▇▇ ▇. ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
and
(B) if to Parent or Newco, to:
STEAG ELECTRONIC SYSTEMs, GmbH
5
▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇-▇
▇-▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇
Telephone:______________________________
Facsimile:______________________________
Attention:______________________________
with a copy to:
Northrop, Stradar & ▇▇▇▇▇, P.C.
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Telephone:______________________________
Facsimile:______________________________
Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇., Esq.
and
▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
(c) The headings contained in this Agreement are for reference purposes
only and shall not affect in any way the meaning or interpretation of this
Agreement.
(d) This Agreement may be executed in two or more counterparts, each of
which shall be deemed an original but all of which shall be considered one and
the same agreement.
(e) This Agreement (including the Merger Agreement and any other documents
and instruments referred to herein) constitutes the entire agreement, and
supersedes all prior agreements and undertakings, whether written or oral, among
the parties hereto with respect to the subject matter hereof.
(f) This Agreement shall be governed by, and construed in accordance with,
the laws of the State of California without giving effect to the principles of
conflicts of laws thereof.
(g) Neither this Agreement nor any of the rights, interests or obligations
hereunder shall be assigned by any of the parties hereto (whether by operation
of law or otherwise) without the prior written consent of the other parties.
Subject to the preceding sentence, this Agreement will be binding upon, inure to
the benefit of and be enforceable by, the parties and their respective
successors and assigns, and the provisions of this Agreement are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
6
(h) If any term, provision, covenant or restriction herein is held by a
court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against its regulatory policy, 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.
(i) Each of the parties hereto acknowledges and agrees that in the event of
any breach of this Agreement, each non-breaching party would be irreparably and
immediately harmed and could not be made whole by monetary damages. It is
accordingly agreed that the parties hereto (i) will waive, in any action for
specific performance, the defense of adequacy of a remedy at law and (ii) shall
be entitled, in addition to any other remedy to which they may be entitled at
law or in equity, to compel specific performance of this Agreement in any action
instituted in any state or federal court sitting in California. The parties
hereto consent to personal jurisdiction in any such action brought in any state
or federal court sitting in California and to service of process upon it in the
manner set forth in Section 11(b) hereof.
(j) No amendment, modification or waiver in respect of this Agreement shall
be effective against any party unless it shall be in writing and signed by such
party.
7
IN WITNESS WHEREOF, Parent, Newco and Shareholder have caused this
Agreement to be duly executed and delivered as of the date first written above.
STEAG ELECTRONIC SYSTEMS GmbH
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇
-------------------------
Name: ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇
Title: Chief Executive Officer
MIG ACQUISITION CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇▇▇▇
-------------------------
Name:▇▇▇▇▇▇▇▇ ▇▇▇▇▇ - ▇▇▇▇▇▇▇
Title: Officer with Statutory Authority
CANON SALES COMPANY, INC.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇
Title: Managing Director
NIPPON TYPEWRITER COMPANY LTD.
By:/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
--------------------------
Name: ▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: President and Chief Executive Officer
8