EXHIBIT 3
SHAREHOLDER AGREEMENT
dated as of
January 31, 2002
among
MKS INSTRUMENTS, INC.
and
▇▇▇▇▇▇▇ ELECTRIC CO.
ARTICLE 1
DEFINITIONS
Definitions................................................................1
ARTICLE 2
CORPORATE GOVERNANCE
Composition of the Board...................................................4
Replacement of ▇▇▇▇▇▇▇ Designee............................................5
ARTICLE 3
STANDSTILL
Purchases of Shares........................................................6
No Appraisal...............................................................7
ARTICLE 4
RESTRICTIONS ON TRANSFER
Lock-Up Period.............................................................7
Lock-Up Expiration.........................................................7
Restrictions on Sale or Transfer of Shares.................................7
Resale Exceptions..........................................................8
ARTICLE 5
REGISTRATION RIGHTS
Demand Registration.........................................................8
Piggyback Registration.....................................................10
Reduction of Offering......................................................10
Filings; Information.......................................................11
Registration Expenses......................................................14
Indemnification by the Company.............................................15
Indemnification by ▇▇▇▇▇▇▇.................................................15
Conduct of Indemnification Proceedings.....................................16
Contribution...............................................................17
Other Indemnification......................................................18
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Rule 144...................................................................18
Participation in Public Offering...........................................18
Consolidation or Merger of the Company.....................................19
ARTICLE 7
MISCELLANEOUS
Binding Effect; Assignability; Benefit.....................................19
Notices....................................................................20
Waiver; Amendment..........................................................21
Fees and Expenses..........................................................21
Governing Law..............................................................21
Jurisdiction...............................................................21
Waiver of Jury Trial.......................................................22
Specific Enforcement.......................................................22
Counterparts; Effectiveness................................................22
Entire Agreement...........................................................22
Captions...................................................................22
Severability...............................................................22
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SHAREHOLDER AGREEMENT
AGREEMENT dated as of January 31, 2002 by and between MKS Instruments,
Inc., a Massachusetts corporation (the "Company"), and ▇▇▇▇▇▇▇ Electric Co., a
Missouri corporation ("Emerson").
W I T N E S S E T H :
WHEREAS, the Company and Emerson have entered into an Agreement and
Plan of Merger with respect to the Acquisition of the ENI Business Agreement
(the "Acquisition Agreement") dated as of October 30, 2001, pursuant to which,
among other things, ▇▇▇▇▇▇▇ and its Subsidiaries shall acquire twelve million
shares of common stock of the Company;
WHEREAS, simultaneously with the execution of the Acquisition
Agreement, ▇▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ have entered into a Voting Agreement
(the "Voting Agreement"), pursuant to which, among other things, ▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ has agreed to vote in favor of the transactions contemplated by the
Acquisition Agreement and the election of ▇▇▇▇▇▇▇'▇ designee as a director on
the Board of the Company in the circumstances specified in this Agreement;
WHEREAS, effective from the Closing Date (as defined below), ▇▇▇▇▇▇▇'▇
initial designee, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, has been appointed to serve as Director on
the Board of the Company; and
WHEREAS, pursuant to provisions of the Acquisition Agreement, ▇▇▇▇▇▇▇
and the Company have agreed to execute and deliver this Agreement on the
Closing Date;
NOW, THEREFORE, in consideration of the covenants and agreements
contained herein and in the Acquisition Agreement, the parties hereto agree as
follows:
ARTICLE 1
DEFINITIONS
Section 1.01 Definitions. (a) The following terms, as used herein,
have the following meanings:
"Adjustment Event" means any stock dividend (including any
distribution of securities convertible into Shares), stock split, reverse
split, rights
offering, reorganization, recapitalization, reclassification, combination or
other like change with respect to or affecting the Common Stock.
"Affiliate" means, with respect to any Person, any other Person
directly or indirectly controlling, controlled by or under common control with
such Person, provided that neither the Company nor any of its Subsidiaries
shall be deemed an Affiliate of ▇▇▇▇▇▇▇. For the purpose of this definition,
the term "control" (including, with correlative meanings, the terms
"controlling", "controlled by" and "under common control with"), as used with
respect to any Person, shall mean the possession, directly or indirectly, of
the power to direct or cause the direction of the management and policies of
such Person, whether through the ownership of securities, by contract or
otherwise.
"beneficial ownership" and "beneficially own" shall be determined in
accordance with Rules 13d-3 and 13d-5 under the Exchange Act.
"Board" means the board of directors of the Company.
"Business Day" means any day except a Saturday, Sunday or other day on
which commercial banks in New York City are authorized by law to close.
"Buyer Requisite Vote" shall have the meaning set forth in the
Acquisition Agreement.
"Buyer Voting Proposal" shall have the meaning set forth in the
Acquisition Agreement.
"Closing Date" means January 31, 2002.
"Common Stock" means the common stock, no par value, of the Company
and any stock of the Company into which such Common Stock may thereafter be
converted or changed.
"Confidentiality Agreement" means the confidentiality agreement by and
between the Company and ▇▇▇▇▇▇▇, dated as of September 6, 2001.
"Dilution Transaction" means any transaction involving the issuance or
sale of Shares that would have the possible effect of reducing ▇▇▇▇▇▇▇'▇ Common
Stock Interest below 20%, where ▇▇▇▇▇▇▇'▇ Common Stock Interest before the
earlier of the date of announcement of any such transaction and the date that
such transaction was effected was equal to or greater than 20%.
"Director" means a director of the Company.
"▇▇▇▇▇▇▇'▇ Common Stock Interest" means, for any date, the percentage
of (i) outstanding Shares beneficially owned by ▇▇▇▇▇▇▇ and its
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Subsidiaries on such date, to (ii) the total number of the then outstanding
Shares based upon the most recent Form 10-Q or Form 10-K filed by the Company
or any more recent notification from the Company to ▇▇▇▇▇▇▇ which specifically
references Section 2.01 of this Agreement.
"Exchange Act" means the Securities Exchange Act of 1934, as amended.
"Institutional Shareholder" means a Person described in Rule
13d-1(b)(1) promulgated under the Exchange Act (other than any such Person who
acquires Shares as part of such Person's market-making or broker-dealer
activities).
"NASD" means the National Association of Securities Dealers, Inc.
"NASDAQ" means the National Association of Securities Dealers
Automated Quotation System.
"Person" means an individual, corporation, limited liability company,
partnership, association, trust or other entity or organization, including a
government or political subdivision or an agency or instrumentality thereof.
"Public Offering" means an underwritten public offering of Registrable
Securities of the Company pursuant to an effective registration statement under
the Securities Act, other than pursuant to a registration statement on Form S-4
or Form S-8 or any similar or successor form.
"Reasonable Best Efforts" means best efforts, to the extent
commercially reasonable.
"Registrable Securities" means, at any time, all Shares held by
▇▇▇▇▇▇▇ or its Subsidiaries, including any Shares and any securities of the
Company issued or issuable in respect of such Shares by way of conversion,
exchange, stock dividend, split or combination, recapitalization, merger,
consolidation, other reorganization or otherwise.
"SEC" means the Securities and Exchange Commission.
"Securities Act" means the Securities Act of 1933, as amended.
"Shares" means shares of Common Stock.
"Standstill Period" means a period of three years commencing on the
Closing Date.
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"Subsidiary" means, with respect to any Person, any entity of which
securities or other ownership interests having ordinary voting power to elect a
majority of the board of directors or other persons performing similar
functions are at the time directly or indirectly owned by such Person.
Each of the following terms is defined in the Section set forth
opposite such term:
Term Section
---- -------
Acquisition Agreement........................................... Recitals
Announcement.................................................... 4.02
Company......................................................... Preamble
Damages......................................................... 5.06
Demand Registration............................................. 5.01(a)
▇▇▇▇▇▇▇......................................................... Preamble
Indemnified Party............................................... 5.08
Indemnifying Party.............................................. 5.08
Lock-Up Period.................................................. 4.01
New Registrable Securities...................................... 6.03
Piggyback Registration.......................................... 5.02
Registration Statement.......................................... 5.01(a)
Successor Entity................................................ 6.03
Transfer........................................................ 4.01
Voting Agreement................................................ Recitals
ARTICLE 2
CORPORATE GOVERNANCE
Section 2.01 Composition of the Board. (a) At all times from and
after the Closing Date, at the termination of the term of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ who
was appointed as a Director effective from the Closing Date, or at the
termination of the term of any subsequent designee of Emersion, or upon death,
disability, incapacity, retirement, resignation, disqualification, removal or
otherwise of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any subsequent designee of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
will have the right to designate one representative who is reasonably
acceptable to the Company, to serve as a Director, provided ▇▇▇▇▇▇▇ will no
longer have such right from after the first time that ▇▇▇▇▇▇▇'▇ Common Stock
Interest has been less than 12.5% for a period of thirty consecutive calendar
days.
(b) Subject to applicable law, if at any time after the Closing Date,
the Company notifies ▇▇▇▇▇▇▇ in writing that ▇▇▇▇▇▇▇'▇ Common Stock Interest
has been less than 12.5% for a period of thirty consecutive calendar days,
after the
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receipt of such notice, ▇▇▇▇▇▇▇ shall promptly direct the Director designated
by ▇▇▇▇▇▇▇ to resign from the Board.
Section 2.02 Replacement of ▇▇▇▇▇▇▇ Designee. (a) If prior to the
expiration of the term of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any subsequent designee of
▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or such subsequent designee of ▇▇▇▇▇▇▇ is no longer a
Director as a result of death, disability, incapacity, retirement, resignation,
disqualification, removal or otherwise, the Company will appoint a person
designated by ▇▇▇▇▇▇▇ in accordance with Section 2.01(a) as Director in the
same class of the Board as his or her predecessor (or if it is not permissible
under applicable law to appoint a Director to such class, then to another
class, or if more than one class is permissible, to the class of the Board with
the longest term outstanding), provided that if such appointment is not
permissible under applicable law (i) the Company shall take all actions in
accordance with applicable law and its Articles of Organization and by-laws to
promptly and duly call, give notice of, convene and hold as promptly as
practicable, a meeting of the Company's stockholders for the purposes of
electing ▇▇▇▇▇▇▇'▇ designee on the Board, (ii) the Board shall recommend such
designee for election to the Board and such recommendation shall be included in
any proxy statement, and (iii) the Company shall use Reasonable Best Efforts to
solicit from the stockholders of the Company eligible to vote for the election
of Directors proxies in favor of such designee.
(a) Upon the expiration of the term of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ or any
subsequent designee of ▇▇▇▇▇▇▇ (i) the Company shall nominate the person
designated by ▇▇▇▇▇▇▇ in accordance with Section 2.01(a) for election to the
Board, (ii) the Board shall recommend such designee for election to the Board
and such recommendation shall be included in any proxy statement, and (iii) the
Company shall use Reasonable Best Efforts to solicit from the stockholders of
the Company eligible to vote for the election of Directors proxies in favor of
the representative designated by ▇▇▇▇▇▇▇.
ARTICLE 3
STANDSTILL
Section 3.01 Purchases of Shares. Except as contemplated by the
Acquisition Agreement, during the Standstill Period, ▇▇▇▇▇▇▇ shall not, and
shall not permit its Subsidiaries to;
(a) directly or indirectly, acquire, announce an intention to
acquire, make any proposal (or except in a confidential and non-public manner,
request permission to make any proposal) to acquire, or agree or offer to
acquire ownership of any Shares, or any other security convertible into, or any
options, warrant or right to acquire any Shares or any property of the Company
(other than
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property acquired in the ordinary course of business) from the Company or any
other Person, except for:
(i) Shares or other property of the Company acquired after
the Closing Date pursuant to an Adjustment Event or any merger,
consolidation or similar transaction involving the Company; or
(ii) if prior approval of a majority of the members of the
Board other than the designee of ▇▇▇▇▇▇▇ has been obtained for such
acquisition proposal, agreement or offer;
(b) "solicit", or propose to "solicit", or participate in any
"solicitation" of, any "proxy" (as such terms are defined in Regulation 14A
under the Exchange Act) from any holder of Shares, become a "participant" in a
"solicitation" in opposition to any matter that has been recommended by a
majority of the members of the Board, propose or otherwise solicit stockholders
of the Company for approval of any stockholder proposals, or otherwise seek to
influence or control the management or policies of the Company or any of its
Affiliates;
(c) take any action to form, join in or in any way participate in any
partnership, limited partnership, syndicate or other Group (as such term is
defined in Rule 13d-5 under the Exchange Act) with respect to Shares;
(d) take any other action to seek control (as such term is defined in
Rule 12b-2 of the Exchange Act) of the Company;
(e) make any request or proposal to amend or waive any provision of
Article 3, except on a confidential and nonpublic manner; or
(f) assist or announce an intention to assist (including by knowingly
providing or arranging financing for that purpose) any other person in doing
any of the foregoing.
Section 3.02 No Appraisal. If, pursuant to any transaction, the
Shares purchased by Emerson pursuant to the Acquisition Agreement are converted
into stock of any publicly traded company, Emerson and its Subsidiaries shall
not exercise any appraisal rights that they might otherwise have under Sections
86 through 98 of Chapter 156B of the Massachusetts General Laws. In any event,
this Section 3.02 shall no longer apply from the date upon which ▇▇▇▇▇▇▇ no
longer has the right to designate a Director in accordance with Article 2 of
this Agreement.
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ARTICLE 4
RESTRICTIONS ON TRANSFER
Section 4.01 Lock-Up Period. Commencing on the Closing Date, for a
period of one year or such shorter period as determined pursuant to Section
4.02 below (the "Lock-Up Period"), except with prior approval of the Company or
as provided in Section 4.04, ▇▇▇▇▇▇▇ shall not, and shall not permit its
Subsidiaries to, directly or indirectly, sell, transfer, pledge, contract to
sell, sell any option or contract to purchase, purchase any option or contract
to sell, grant any option, right or warrant to purchase, transfer the economic
risk of ownership of or otherwise dispose of ("Transfer"), any Shares purchased
pursuant to the Acquisition Agreement (or Shares acquired as a result of an
Adjustment Event).
Section 4.02 Lock-Up Expiration. If during the period of one year
from the Closing Date, the Company makes a public announcement (an
"Announcement") of any Dilution Transaction or effects a Dilution Transaction
(regardless of whether publicly announced or not), the Lock-Up Period shall
expire on the later of (a) the date that is six months after the Closing Date,
or (b) the earlier of the date of such Announcement or the date such Dilution
Transaction is effected.
Section 4.03 Restrictions On Sale Or Transfer Of Shares. Subject to
the exceptions set forth in Section 4.04, ▇▇▇▇▇▇▇ shall not, and shall not
permit its Subsidiaries to, Transfer any Shares purchased pursuant to the
Acquisition Agreement:
(a) to any Person that competes in any of same principal markets in
which the Company competes; or
(b) to any Person (other than an Institutional Purchaser) if, ▇▇▇▇▇▇▇
has knowledge that after giving effect to such sale, such Person and any Group
of which such Person is a part would beneficially own (or, in the case of an
underwritten Public Offering, if the lead underwriter has knowledge such Person
and any Group of which such Person is a part would beneficially own) more than
5% of the then outstanding Shares,
provided that this Section 4.03 shall not preclude any bona fide transactions
conducted on NASDAQ or any national securities exchange on which the Shares are
then listed, and provided further that any block trade crossed through NASDAQ
or any national securities exchange on which the Shares are then listed will be
subject to Sections 4.03(a) and 4.03(b) to the extent the broker or
market-maker effecting such sale on behalf of ▇▇▇▇▇▇▇ has actual knowledge that
such sale is made to a Person referred to in Sections 4.03(a) and 4.03(b)
above.
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Section 4.04 Resale Exceptions. Notwithstanding Sections 4.01 and
4.03, ▇▇▇▇▇▇▇ and its Subsidiaries may Transfer any Shares purchased pursuant
to the Acquisition Agreement:
(a) to ▇▇▇▇▇▇▇ or its Subsidiaries; or
(b) pursuant to a tender or exchange offer made by the Company or any
Affiliate or recommended by the Board to the Company's stockholders.
ARTICLE 5
REGISTRATION RIGHTS
Section 5.01 Demand Registration. (a) The Company agrees that, at
any time after the Closing Date, upon the request of ▇▇▇▇▇▇▇ (a "Demand
Registration"), it will file a registration statement (a "Registration
Statement") under the Securities Act as to the number of shares of Registrable
Securities specified in such request subject to the limitations described in
Section 5.01(b); provided that (i) the Company shall not be required to file
more than three Registration Statements that become effective and remain
effective for the period referred to in Section 5.04(a), (ii) subject to the
second proviso in Section 5.01(b), ▇▇▇▇▇▇▇ shall not make more than one request
for a Demand Registration in any twelve month period, (iii) the Registrable
Securities for which a Demand Registration has been requested by ▇▇▇▇▇▇▇ must
be at least two million Shares (or, if less, all of the Shares then held by
▇▇▇▇▇▇▇ and its Subsidiaries), (iv) the proposed offering of Shares of
Registrable Securities must be an underwritten offering, (v) the Company shall
not be required to file a shelf registration statement pursuant to Rule 415 of
the Securities Act under this Section 5.01(a), (vi) prior to the first
anniversary of the Closing Date, no request to register any Registrable
Securities may be made prior to such time as the Company is required to file a
Registration Statement for such Registrable Securities pursuant to Section
5.01(b), (vii) the Company shall not be required to effect a Demand
Registration if within 10 days after receipt of a request, therefor the Company
provides written notice of its bona fide intention to file within 60 days a
registration statement for an underwritten public offering of securities for
its own account, and (viii) the Company shall not be required to effect a
Demand Registration during the period from the date of filing of, and ending 90
days after the effective date of, any registration statement for an
underwritten public offering of securities for the account of the Company. In
no event shall the Company's right to block or defer a Demand Registration
pursuant to this Article 5 permit a block or deferral of longer than a
cumulative period of six months, and following any such deferrals, ▇▇▇▇▇▇▇
shall have the right to have a Demand Registration effected at any time during
the six month period following such block or deferral without restriction
hereunder.
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(c) Pursuant to Demand Registrations the Company will not be required
to register more than (i) four million Shares prior to the date that is one
year after the expiration of the Lock-Up Period, (ii) eight million Shares
(less any Shares registered under clause (i)) prior to the date that is two
years after the expiration of the Lock-Up Period or (iii) twelve million Shares
(less any Shares registered under clause (i) and (ii)) prior to the date that
is three years after the expiration of the Lock-Up Period; provided that any of
the numbers shall be adjusted (x) based on the number of Shares in excess of
twelve million Shares delivered by the Company to ▇▇▇▇▇▇▇ and its Subsidiaries
at the Closing Date, (y) based on any Adjustment Event that occurs after the
Closing Date but before the effective date of the relevant Demand Registration,
and (z) if ▇▇▇▇▇▇▇ requests, and the Company consents, to increase the numbers
in the foregoing limitations (such consent not to be unreasonably withheld,
where it will be reasonable for the Company to refuse such consent if it would
be reasonably expected to have an adverse effect on the trading price of the
Shares), the numbers in clause (b)(i) and (b)(ii) above shall be increased by
no more than four million Shares multiplied by the proportion of the year that
has passed (as of the date of the request) from the date that is one year and
two years respectively after the expiration of the Lock-Up Period provided
further that the limitations described in Sections 5.01(a)(ii), (vii) and
(viii), this Section 5.01(b) and the proviso in Section 5.04(a) shall not apply
if ▇▇▇▇▇▇▇'▇ Common Stock Interest is equal to or greater than 12.5% and
notwithstanding that the Company has fully performed its obligations under
Article 2: (A) ▇▇▇▇▇▇▇ designates a representative to serve on the Board in
accordance with Section 2.01 of this Agreement and such designee is not elected
or appointed to the Board for any reason, or (B) ▇▇▇▇▇▇▇'▇ representative on
the Board is removed and not replaced by a representative designated by ▇▇▇▇▇▇▇
in accordance with Section 2.01 of this Agreement.
(d) ▇▇▇▇▇▇▇ shall select the lead underwriter, any additional
underwriters, and any additional investment bankers and managers to be used, in
connection with the offering resulting from a request for a Demand Registration
made pursuant to Section 5.01(a), subject to the Company's reasonable approval
(such approval not to be unreasonably withheld).
Section 5.02 Piggyback Registration. If the Company proposes to
register any Shares, whether for sale for its own account or for the account of
any of its holders of Shares, the Company shall each such time give prompt
notice to ▇▇▇▇▇▇▇ at least 15 Business Days prior to the anticipated filing
date of the registration statement relating to such registration, which notice
shall set forth ▇▇▇▇▇▇▇'▇ rights under this Section 5.02 and shall offer
▇▇▇▇▇▇▇ and its Subsidiaries the opportunity to register such number of shares
of Registrable Securities as ▇▇▇▇▇▇▇ may request on the same terms and
conditions as the Company or such holder of Shares (a "Piggyback
Registration"); provided, that ▇▇▇▇▇▇▇ shall not request the registration of a
greater number of Shares than that for which it could then demand a
registration under Section 5.01(b). No
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registration effected under this Section 5.02 shall relieve the Company of its
obligations to effect a Demand Registration to the extent required by Section
5.01, provided, however, that any Shares sold pursuant to this Section 5.02
shall be applied against the limitation set forth in Section 5.01(b).
Notwithstanding anything to the contrary herein, ▇▇▇▇▇▇▇ shall have no
Piggyback Registration rights under this Section 5.02 with respect to a
Registration Statement filed to sell Shares solely for the account of Mr. or
▇▇▇. ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (or trusts established by either of them) at any time
within 12 months after the death of Mr. and ▇▇▇. ▇▇▇▇▇▇▇▇.
Section 5.03 Reduction of Offering. Notwithstanding anything
contained herein, if the managing underwriter of an offering described in
Section 5.01 or Section 5.02 advises the Company in writing that (i) the size
of the offering that ▇▇▇▇▇▇▇, the Company and any other Persons intend to make
or (ii) the combination of securities that ▇▇▇▇▇▇▇, the Company and such other
Persons intend to include in such offering would jeopardize the success of the
offering, then (A) if the size of the offering is the basis of such
underwriter's advice, the amount of Registrable Securities to be offered for
the account of ▇▇▇▇▇▇▇ shall be reduced to the extent necessary to reduce the
total amount of securities to be included in such offering to the amount
recommended by such managing underwriter; provided that (x) in the case of a
Demand Registration, the amount of Registrable Securities to be offered for the
account of ▇▇▇▇▇▇▇ shall be reduced only after the amount of securities to be
offered for the account of the Company and such other Persons has been reduced
to zero, and (y) in the case of a Piggyback Registration, if securities are
being offered for the account of Persons other than the Company, then the
proportion by which the amount of such Registrable Securities intended to be
offered for the account of ▇▇▇▇▇▇▇ is reduced shall not exceed the proportion
by which the amount of such securities intended to be offered for the account
of such other Persons is reduced, provided that in the case of a Piggyback
Registration filed pursuant to the exercise of demand registration rights by a
Person other than ▇▇▇▇▇▇▇, Registrable Securities shall be included only if
there is no reduction in the amount of securities registered for the account of
the Persons demanding such registration; and (B) if the combination of
securities to be offered is the basis of such underwriter's advice, (x) the
Registrable Securities to be included in such offering shall be reduced as
described in clause (A) above (subject to the proviso in clause (A)), and (y)
in the case of a Piggyback Registration, if the actions described in sub-clause
(x) of this clause (B) would, in the judgment of the managing underwriter, be
insufficient substantially to eliminate the adverse effect that inclusion of
the Registrable Securities requested to be included would have on such
offering, such Registrable Securities will be excluded from such offering.
Section 5.04 Filings; Information. Whenever ▇▇▇▇▇▇▇ requests that any
Registrable Securities be registered pursuant to Section 5.01 hereof, the
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Company will use Reasonable Best Efforts to effect the registration of such
Registrable Securities as soon as is practicable, and in connection with any
such request:
(a) The Company will use its Reasonable Best Efforts to prepare and
file with the SEC as soon as practicable a Registration Statement on any form
for which the Company then qualifies and which counsel for the Company shall
deem appropriate and available for the sale of the Registrable Securities to be
registered thereunder in accordance with the intended method of distribution
thereof, and use Reasonable Best Efforts to cause such filed Registration
Statement to become and remain effective for a period as is reasonably required
to effect the proposed distribution of the Registrable Securities (but in any
event, not less than 90 days); provided that, subject to the second proviso in
Section 5.01(b), the Company's obligations to use Reasonable Best Efforts to
file the Registration Statement shall be suspended for up to 90 days if the
Company shall furnish to ▇▇▇▇▇▇▇ a certificate signed by the Company's Chief
Executive Officer stating that in his reasonable good faith judgment the
fulfillment of the foregoing obligations would (i) require the Company to make
a disclosure that would be detrimental to the Company and premature, or (ii)
occur at a time when the price or exchange ratio at which the Company is
obligated to issue securities (other than Company employee or officer and
director stock options or restricted stock grants) is being determined, except
that the foregoing obligations of the Company shall be reinstated upon the
making of such disclosure by the Company or expiration or termination of the
circumstances referred to in clause (ii) above (or, if earlier, when such
disclosure would no longer be necessary for the fulfillment of the foregoing
obligations or no longer be detrimental).
(b) The Company will, if requested, prior to filing such Registration
Statement or any amendment or supplement thereto, furnish to ▇▇▇▇▇▇▇ and each
applicable managing underwriter, if any, copies thereof, and thereafter furnish
to ▇▇▇▇▇▇▇ and each such underwriter, if any, such number of copies of such
Registration Statement, amendment and supplement thereto (in each case
including all exhibits thereto and documents incorporated by reference therein)
and the prospectus included in such Registration Statement (including each
preliminary prospectus) as ▇▇▇▇▇▇▇ or each such underwriter may reasonably
request in order to facilitate the sale of the Registrable Securities.
(c) After the filing of the Registration Statement, the Company will
promptly notify ▇▇▇▇▇▇▇ of any stop order issued or, to the Company's
knowledge, threatened to be issued by the SEC and take all reasonable actions
required to prevent the entry of such stop order or to remove it if entered.
(d) The Company will use Reasonable Best Efforts to qualify the
Registrable Securities for offer and sale under such other securities or blue
sky laws of such jurisdiction in the United States as ▇▇▇▇▇▇▇ reasonably
requests;
11
provided that the Company will not be required to (i) qualify generally to do
business in any jurisdiction where it would not otherwise be required to
qualify but for this Section 5.04(d), (ii) subject itself to taxation in any
such jurisdiction or (iii) consent to general service of process in any such
jurisdiction.
(e) The Company will as promptly as is practicable notify ▇▇▇▇▇▇▇, at
any time when a prospectus relating to the sale of the Registrable Securities
is required by law to be delivered in connection with sales by an underwriter
or dealer, of the occurrence of any event requiring the preparation of a
supplement or amendment to such prospectus so that, as thereafter delivered to
the purchasers of such Registrable Securities, such prospectus will not contain
an untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading and
promptly make available to ▇▇▇▇▇▇▇ and to the underwriters any such supplement
amendment. ▇▇▇▇▇▇▇ agrees that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in the preceding sentence,
▇▇▇▇▇▇▇ will forthwith discontinue the offer and sale of Registrable Securities
pursuant to the Registration Statement covering such Registrable Securities
until receipt by ▇▇▇▇▇▇▇ and the underwriters of the copies of such
supplemented or amended prospectus and, if so directed by the Company, ▇▇▇▇▇▇▇
will deliver to the Company all copies, other than permanent file copies then
in ▇▇▇▇▇▇▇'▇ possession, of the most recent prospectus covering such
Registrable Securities at the time of receipt of such notice. In the event the
Company shall give such notice, the Company shall extend the period during
which such Registration Statement shall be maintained effective as provided in
Section 5.04(a) hereof by the number of days during the period from and
including the date of the giving of such notice to the date when the Company
shall make available to ▇▇▇▇▇▇▇ such supplemented or amended prospectus.
(f) The Company will enter into customary agreements (including an
underwriting agreement in customary form) and take such other actions as are
reasonably required in order to expedite or facilitate the sale of such
Registrable Securities, including but not limited to attendance by the
Company's Chief Executive Officer and any other Company officers as may be
reasonably requested by ▇▇▇▇▇▇▇, at any analyst or investor presentation or any
"road shows" undertaken in connection with the marketing or selling of the
Registrable Securities provided that the Company's Chief Executive Officer and
such Company officers (if any) shall not be required to participate in any such
presentations or "road show" for more than three Business Days in connection
with each Demand Registration.
(g) The Company will furnish to each underwriter (i) an opinion or
opinions of counsel to the Company and (ii) a comfort letter or comfort letters
from the Company's independent public accountants, each in customary form and
12
covering such matters of the type customarily covered by opinions or comfort
letters, as the case may be, as the managing underwriter reasonably requests.
(h) The Company will make generally available to its security
holders, as soon as reasonably practicable, an earnings statement covering a
period of 12 months, beginning within three months after the effective date of
the Registration Statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the rules and regulations
of the SEC thereunder.
(i) The Company will use Reasonable Best Efforts to (i) to secure the
designation of all such Registrable Securities covered by such Registration
Statement as a NASDAQ "national market system security" within the meaning of
Rule 11Aa2-1 of the SEC or, failing that, to secure NASDAQ authorization for
such Registrable Securities, in each case if the Registrable Securities so
qualify, and, without limiting the generality of the foregoing, to arrange for
at least two market makers to register as such with respect to such Registrable
Securities with the NASD, or (ii) to cause all Registrable Securities covered
by such Registration Statement to be listed on any national securities exchange
(if such Registrable Securities are not already listed), and on each other
securities exchange on which similar securities issued by the Company are then
listed, if the listing of such Registrable Securities is then permitted under
the rules of such exchange.
The Company may require ▇▇▇▇▇▇▇ promptly to furnish in writing to the
Company such information regarding ▇▇▇▇▇▇▇, the plan of distribution of the
Registrable Securities and such other information as the Company may from time
to time reasonably request or as may be legally required in connection with
such registration.
Section 5.05 Registration Expenses. In connection with any Demand
Registration and in connection with any Piggyback Registration, the Company
shall pay the following expenses incurred in connection with such registration:
(i) registration and filing fees with the SEC, (ii) fees and expenses of
compliance with securities or blue sky laws (including reasonable fees and
disbursements of counsel in connection with blue sky qualifications of the
Registrable Securities), (iii) expenses in connection with the preparation,
printing, mailing and delivery of any registration statements, prospectuses and
other documents in connection therewith and any amendments or supplements
thereto, (iv) fees and expenses incurred in connection with the listing of the
Registrable Securities, (v) fees and expenses of counsel and independent
certified public accountants for the Company, (vi) the reasonable fees and
expenses of any additional experts retained by the Company in connection with
such registration, (vii) internal expenses of the Company (including, without
limitation, all salaries and expenses of its officers and employees performing
legal or accounting duties), (viii) for any Piggyback Registration fees and
expenses in connection with any review by the NASD of the underwriting
arrangements or other terms of the offering, and all
13
fees and expenses of any "qualified independent underwriter," including the
fees and expenses of any counsel thereto, (ix) costs of printing and producing
any agreements among underwriters, underwriting agreements, any "blue sky" or
legal investment memoranda and any selling agreements and other documents in
connection with the offering, sale or delivery of the Registrable Securities,
(x) transfer agents' and registrars' fees and expenses and the fees and
expenses of any other agent or trustee appointed in connection with such
offering, (xi) expenses incurred by the Company in connection with any analyst
or investor presentations or any "road shows" attended by the Company in
connection with the registration, marketing or selling of the Registrable
Securities, and (xii) fees and expenses payable in connection with any ratings
of the Registrable Securities, including expenses relating to any presentations
to rating agencies; provided, however, that the Company shall not be required
to pay, and ▇▇▇▇▇▇▇ shall reimburse the Company for, any such expenses for any
Demand Registration that is withdrawn at the request of ▇▇▇▇▇▇▇ unless such
withdrawn Registration Statement is counted toward the maximum number of Demand
Registrations to which ▇▇▇▇▇▇▇ is entitled under Section 5.01. ▇▇▇▇▇▇▇ shall
pay any underwriting fees, discounts or commissions attributable to the sale of
Registrable Securities and any out-of-pocket expenses of ▇▇▇▇▇▇▇.
Section 5.06 Indemnification by the Company. The Company agrees to
indemnify and hold harmless ▇▇▇▇▇▇▇, its officers, directors, employees, and
agents, and each Person, if any, who controls ▇▇▇▇▇▇▇ within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act from and
against any and all losses, claims, damages, liabilities and expenses
(including reasonable expenses of investigation and reasonable attorneys' fees
and expenses) ("Damages") caused by or relating to any untrue statement or
alleged untrue statement of a material fact contained in any registration
statement or prospectus relating to the Registrable Securities (as amended or
supplemented if the Company shall have furnished any amendments or supplements
thereto) or any preliminary prospectus (including documents incorporated by
reference therein), or caused by or relating to any omission or alleged
omission to state therein a material fact required to be stated therein or
necessary to make the statements therein not misleading, except insofar as such
Damages are caused by or related to any such untrue statement or omission or
alleged untrue statement or omission so made based upon information furnished
in writing to the Company by ▇▇▇▇▇▇▇ or on ▇▇▇▇▇▇▇'▇ behalf expressly for use
therein, provided that, with respect to any untrue statement or omission or
alleged untrue statement or omission made in any preliminary prospectus, or in
any prospectus, as the case may be, the indemnity agreement contained in this
paragraph shall not apply to the extent that any Damages result from the fact
that a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) was not sent or given to the Person asserting
any such Damages at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is
14
determined that the Company has provided such prospectus to ▇▇▇▇▇▇▇ and it was
the responsibility of ▇▇▇▇▇▇▇ to provide such Person with a current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be) and
such current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) would have cured the defect giving rise to such
Damages. The Company also agrees to indemnify any underwriters of the
Registrable Securities, their officers and directors and each Person who
controls such underwriters within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act on substantially the same basis as that
of the indemnification of ▇▇▇▇▇▇▇ provided in this Section 5.06.
Section 5.07 Indemnification by ▇▇▇▇▇▇▇. ▇▇▇▇▇▇▇ agrees to indemnify
and hold harmless the Company, its officers, directors and agents and each
Person, if any, who controls the Company within the meaning of either Section
15 of the Securities Act or Section 20 of the Exchange Act to the same extent
as the foregoing indemnity from the Company to ▇▇▇▇▇▇▇, but only (i) with
respect to information furnished in writing by ▇▇▇▇▇▇▇ or on ▇▇▇▇▇▇▇'▇ behalf
expressly for use in any registration statement or prospectus relating to the
Registrable Securities, or any amendment or supplement thereto, or any
preliminary prospectus or (ii) to the extent that any Damages result from the
fact that a current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) was not sent or given to the Person asserting
any such Damages at or prior to the written confirmation of the sale of the
Registrable Securities concerned to such Person if it is determined that it was
the responsibility of ▇▇▇▇▇▇▇ to provide such Person with a current copy of the
prospectus (or such amended or supplemented prospectus, as the case may be) and
such current copy of the prospectus (or such amended or supplemented
prospectus, as the case may be) would have cured the defect giving rise to such
loss, claim, damage, liability or expense. ▇▇▇▇▇▇▇ also agrees to indemnify and
hold harmless underwriters of the Registrable Securities, their officers and
directors and each Person who controls such underwriters within the meaning of
either Section 15 of the Securities Act or Section 20 of the Exchange Act on
substantially the same basis as that of the indemnification of the Company
provided in this Section 5.07. As a condition to including Registrable
Securities in any registration statement filed in accordance with Article 5,
the Company may require that it shall have received an undertaking reasonably
satisfactory to it from any underwriter to indemnify and hold it harmless to
the extent customarily provided by underwriters with respect to similar
securities. ▇▇▇▇▇▇▇ shall not be liable under this Section 5.07 for any Damages
in excess of the net proceeds realized by ▇▇▇▇▇▇▇ in the sale of Registrable
Securities of ▇▇▇▇▇▇▇ to which such Damages relate.
Section 5.08 Conduct of Indemnification Proceedings. If any
proceeding (including any governmental investigation) shall be instituted
involving any Person in respect of which indemnity may be sought pursuant to
15
this Article 5, such Person (an "Indemnified Party") shall promptly notify the
Person against whom such indemnity may be sought (the "Indemnifying Party") in
writing and the Indemnifying Party shall assume the defense thereof, including
the employment of counsel reasonably satisfactory to such Indemnified Party,
and shall assume the payment of all fees and expenses, provided that the
failure of any Indemnified Party so to notify the Indemnifying Party shall not
relieve the Indemnifying Party of its obligations hereunder except to the
extent that the Indemnifying Party is materially prejudiced by such failure to
notify. In any such proceeding, any Indemnified Party shall have the right to
retain its own counsel, but the fees and expenses of such counsel shall be at
the expense of such Indemnified Party unless (i) the Indemnifying Party and the
Indemnified Party shall have mutually agreed to the retention of such counsel
or (ii) in the reasonable judgment of such Indemnified Party representation of
both parties by the same counsel would be inappropriate due to actual or
potential differing interests between them. It is understood that, in
connection with any proceeding or related proceedings in the same jurisdiction,
the Indemnifying Party shall not be liable for the reasonable fees and expenses
of more than one separate firm of attorneys (in addition to any local counsel)
at any time for all such Indemnified Parties, and that all such fees and
expenses shall be reimbursed as they are incurred. In the case of any such
separate firm for the Indemnified Parties, such firm shall be designated in
writing by the Indemnified Parties. The Indemnifying Party shall not be liable
for any settlement of any proceeding effected without its written consent, but
if settled with such consent, or if there be a final judgment for the
plaintiff, the Indemnifying Party shall indemnify and hold harmless such
Indemnified Parties from and against any loss or liability (to the extent
stated above) by reason of such settlement or judgment. Without the prior
written consent of the Indemnified Party, no Indemnifying Party shall effect
any settlement of any pending or threatened proceeding in respect of which any
Indemnified Party is or could have been a party and indemnity could have been
sought hereunder by such Indemnified Party, unless such settlement includes an
unconditional release of such Indemnified Party from all liability arising out
of such proceeding.
Section 5.09 Contribution. If the indemnification provided for in
this Article 5 is unavailable to the Indemnified Parties in respect of any
Damages, then each such Indemnifying Party, in lieu of indemnifying such
Indemnified Party, shall contribute to the amount paid or payable by such
Indemnified Party as a result of such Damages in such proportion as is
appropriate to reflect the relative fault of the Company, ▇▇▇▇▇▇▇ and the
underwriters in connection with the statements or omissions that resulted in
such Damages, as well as any other relevant equitable considerations. The
relative fault of the Company, ▇▇▇▇▇▇▇ and the underwriters shall be determined
by reference to, among other things, whether the untrue or alleged untrue
statement of a material fact or the omission or alleged omission to state a
material fact relates to information supplied by such
16
party and the parties' relative intent, knowledge, access to information and
opportunity to correct or prevent such statement or omission.
The Company and ▇▇▇▇▇▇▇ agree that it would not be just and equitable
if contribution pursuant to this Section 5.09 were determined by pro rata
allocation (even if the underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in the immediately preceding paragraph.
Notwithstanding the provisions of this Article 5, no underwriter shall be
required to contribute any amount in excess of the amount by which the total
price at which the securities underwritten by it and distributed to the public
were offered to the public exceeds the amount of any Damages which such
underwriter has otherwise been required to pay by reason of such untrue or
alleged untrue statement or omission or alleged omission, and ▇▇▇▇▇▇▇ shall not
be required to contribute any amount in excess of the amount by which the net
proceeds of the offering (before deducting expenses) received by ▇▇▇▇▇▇▇
exceeds the amount of any Damages which ▇▇▇▇▇▇▇ has otherwise been required to
pay by reason of such untrue or alleged untrue statement or omission or alleged
omission. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11(f) of the Securities Act) shall be entitled to contribution from
any Person who was not guilty of such fraudulent misrepresentation.
Section 5.10 Other Indemnification. Indemnification similar to that
specified herein (with appropriate modifications) shall be given by the Company
and ▇▇▇▇▇▇▇ with respect to any required registration or other qualification of
securities under any federal or state law or regulation or governmental
authority other than the Securities Act.
ARTICLE 6
CERTAIN COVENANTS AND AGREEMENTS
Section 6.01 Rule 144. The Company covenants that it will file any
reports required to be filed by it under the Securities Act and the Exchange
Act and that it will take such further action as ▇▇▇▇▇▇▇ may reasonably request
to the extent required from time to time to enable ▇▇▇▇▇▇▇ or its Subsidiaries
to sell Registrable Securities without registration under the Securities Act
within the limitation of the exemptions provided by Rule 144 under the
Securities Act, as such Rule may be amended from time to time, or any similar
rule or regulation hereafter adopted by the SEC. Upon the request of ▇▇▇▇▇▇▇,
the Company will deliver to ▇▇▇▇▇▇▇ a written statement as to whether it has
complied with such reporting requirements.
Section 6.02 Participation in Public Offering. ▇▇▇▇▇▇▇ may not
participate in any Public Offering hereunder unless ▇▇▇▇▇▇▇ (a) agrees to sell
its
17
Registrable Securities on the basis provided in any underwriting arrangements
approved by the Persons entitled hereunder to approve such arrangements and (b)
completes and executes all questionnaires, powers of attorney, indemnities,
underwriting agreements and other documents reasonably required under the terms
of such underwriting arrangements and the provisions of this Agreement in
respect of registration rights.
Section 6.03 Consolidation or Merger of the Company. If the Company
considers any transaction in which the Company consolidates or merges with or
into any Person, as a result of which the Shares are converted into or become,
in whole or in part, securities of any other Person ("Successor Entity"), the
Company shall use its best efforts to cause the Successor Entity to agree with
▇▇▇▇▇▇▇ to file a registration statement under the Securities Act covering the
resale of all of the securities issued by the Successor Entity with respect to
the Registrable Securities in such merger or consolidation (and any other
securities issued or issuable in respect of such securities by way of
conversion, exchange, stock dividend, split or combination, recapitalization,
merger, consolidation, other reorganization or otherwise) (collectively, the
"New Registrable Securities") during the period commencing as soon as
practicable after the closing of such merger or consolidation and ending on the
first anniversary thereof, provided, however, that (a) the Successor Entity
shall not be required to register New Registrable Securities to the extent it
conflicts with other pre-existing contractual rights to which the Successor
Entity is a party, and (b) such registration obligation shall be subject to
reasonable customary deferral and suspension periods. ▇▇▇▇▇▇▇ agrees to
cooperate in executing and delivering any agreement reasonably necessary to
implement such registration rights. Notwithstanding the foregoing, the Company
shall not be required to use its best efforts to cause the Successor Entity to
grant any such registration rights if (i) ▇▇▇▇▇▇▇ would be able to sell all of
the New Registrable Securities within the 12-month period following the closing
of such merger or consolidation pursuant to the provisions of Rule 144 (based
on the combined (at the applicable exchange ratio) outstanding shares and
combined (at the applicable exchange ratio) average weekly trading volumes of
the Company and the Successor Entity during the three months prior to the
Closing), or (ii) ▇▇▇▇▇▇▇, in the opinion of its counsel, would not be
considered an affiliate of the Company for purposes of Rule 145 under the
Securities Act if its designee were to resign as a Director prior to mailing of
proxy materials to the Company's stockholders with respect to such transaction
and ▇▇▇▇▇▇▇ is given sufficient notice to be able to consider and take such
action.
18
ARTICLE 7
MISCELLANEOUS
SECTION 7.01 Binding Effect; Assignability; Benefit. (a) This
Agreement shall inure to the benefit of and be binding upon the parties hereto
and their respective heirs, successors, legal representatives and permitted
assigns, provided that no party may assign, delegate or otherwise transfer any
of its rights or obligations under this Agreement without the prior consent of
the other party hereto. Without limiting the foregoing, (i) ▇▇▇▇▇▇▇ and its
subsidiaries shall not sell or otherwise transfer any of the Shares to any
Subsidiary or Affiliate unless the transferee agrees in writing to be bound by
the provisions of Article 3 and Article 4 hereof to the same extent as ▇▇▇▇▇▇▇,
and (ii) the provisions of Articles 2 and 5 are not assignable under any
circumstances except to any Affiliate or Subsidiary of ▇▇▇▇▇▇▇.
(a) Nothing in this Agreement, expressed or implied, is intended to
confer on any Person other than the parties hereto, and their respective heirs,
successors, legal representatives and permitted assigns, any rights, remedies,
obligations or liabilities under or by reason of this Agreement.
SECTION 7.02 Notices. All notices, requests and other communications
to any party shall be in writing and shall be delivered in person, mailed by
certified or registered mail, return receipt requested, or sent by facsimile
transmission,
if to the Company to:
MKS Instruments, Inc.
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Chairman and CEO
with a copy to:
▇▇▇▇ and ▇▇▇▇ LLP
▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
if to Emerson:
▇▇▇▇▇▇▇ Electric Co.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇.▇. ▇▇▇ ▇▇▇▇
▇▇
▇▇. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: Senior Vice President, Secretary and General Counsel
with a copy to:
▇▇▇▇▇ ▇▇▇▇ & ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
All notices, requests and other communications shall be deemed
received on the date of receipt by the recipient thereof if received prior to
5:00 p.m. in the place of receipt and such day is a Business Day in the place
of receipt. Otherwise, any such notice, request or communication shall be
deemed not to have been received until the next succeeding Business Day in the
place of receipt. Any notice, request or other written communication sent by
facsimile transmission shall be confirmed by certified or registered mail,
return receipt requested, posted within one Business Day, or by personal
delivery, whether courier or otherwise, made within two Business Days after the
date of such facsimile transmissions.
SECTION 7.03 Waiver; Amendment. No provision of this Agreement may
be waived except by an instrument in writing executed and delivered by duly
authorized officers of the respective parties.
SECTION 7.04 Fees and Expenses. Except as otherwise provided in the
Acquisition Agreement, each party shall bear its own costs and expenses
incurred in connection with the preparation of this Agreement, or any amendment
or waiver hereof.
SECTION 7.05 Governing Law. This Agreement shall be governed by, and
construed in accordance with, the laws of the Commonwealth of Massachusetts,
without regard to the conflicts of laws rules of such state.
SECTION 7.06 Jurisdiction. The parties hereby agree that any suit,
action or proceeding seeking to enforce any provision of, or based on any
matter arising out of or in connection with, this Agreement or the transactions
contemplated hereby may be brought in the United States District Court for the
District of Boston or any Massachusetts court sitting in Boston, so long as one
of such courts shall have subject matter jurisdiction over such suit, action or
proceeding, and that any cause of action arising out of this Agreement shall be
deemed to have arisen from a transaction of business in the Commonwealth of
Massachusetts, and each of the parties hereby irrevocably consents to the
jurisdiction of such courts (and of the appropriate appellate courts therefrom)
in any such suit, action or proceeding
20
and irrevocably waives, to the fullest extent permitted by law, any objection
that it may now or hereafter have to the laying of the venue of any such suit,
action or proceeding in any such court or that any such suit, action or
proceeding which is brought in any such court has been brought in an
inconvenient form. Process in any such suit, action or proceeding may be served
on any party anywhere in the world, whether within or without the jurisdiction
of any such court. Without limiting the foregoing, each party agrees that
service of process on such party as provided in Section 7.02 shall be deemed
effective service of process on such party.
SECTION 7.07 Waiver of Jury Trial. EACH OF THE PARTIES HERETO HEREBY
IRREVOCABLY WAIVES ANY AND ALL RIGHT TO TRIAL BY JURY IN ANY LEGAL PROCEEDING
ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED
HEREBY.
SECTION 7.08 Specific Enforcement. Each party hereto acknowledges
that the remedies at law of the other party for a breach or threatened breach
of this Agreement would be inadequate and, in recognition of this fact, any
party to this Agreement, without posting any bond, and in addition to all other
remedies that may be available, shall be entitled to obtain equitable relief in
the form of specific performance, a temporary restraining order, a temporary or
permanent injunction or any other equitable remedy that may then be available.
SECTION 7.09 Counterparts; Effectiveness. This Agreement may be
executed in any number of counterparts, each of which shall be deemed to be an
original, with the same effect as if the signatures thereto and hereto were
upon the same instrument. This Agreement shall become effective when each party
hereto shall have received counterparts hereof signed by the other party
hereto.
SECTION 7.10 Entire Agreement. This Agreement, the Acquisition
Agreement and the Voting Agreement constitute the entire agreement among the
parties hereto and supersede all prior and contemporaneous agreements and
understandings, both oral and written, among the parties hereto with respect to
the subject matter hereof and thereof, provided that the Confidentiality
Agreement shall survive, except that the provisions of Article 3 of this
Agreement shall be deemed to supersede the standstill provisions contained in
paragraph 3 of the Confidentiality Agreement.
SECTION 7.11 Captions. The captions herein are included for
convenience of reference only and shall be ignored in the construction or
interpretation hereof.
SECTION 7.12 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions,
21
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated so long as the
economic or legal substance of the transactions contemplated hereby is not
affected in any manner materially adverse to any party. Upon such a
determination, the parties shall negotiate in good faith to modify this
Agreement so as to effect the original intent of the parties as closely as
possible in an acceptable manner so that the transactions contemplated hereby
be consummated as originally contemplated to the fullest extent possible.
22
IN WITNESS WHEREOF, the parties hereto have caused this Shareholder
Agreement to be duly executed by their respective authorized officers as of the
day and year first above written.
MKS INSTRUMENTS, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
Title: Chairman and
Chief Executive Officer
▇▇▇▇▇▇▇ ELECTRIC CO.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Senior Vice President-
Development