STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (the "Agreement") is dated as of June 10,
1999, by and among Ion Beam Applications S.A. ("Parent"), a corporation
organized under the laws of the Kingdom of Belgium, Ion Beam Applications G.P.
("GP"), a Delaware general partnership which is controlled by Parent, and IBA
Acquisition Corporation ("Acquisition"), a Delaware corporation which is
wholly-owned by GP, and the stockholders listed on Schedule I hereto (each, a
"Stockholder," and collectively, the "Stockholders") of SteriGenics
International, Inc. (the "Company"), a Delaware corporation. Capitalized terms
used and not defined herein have the respective meanings assigned to them in the
Merger Agreement (defined herein).
WHEREAS, concurrently herewith, Parent, GP, Acquisition and the Company are
entering into a Merger Agreement, the form of which is appended hereto as
Exhibit A (as such agreement may hereafter be amended from time to time, the
"Merger Agreement"), pursuant to which the Offer will be made by Acquisition for
the issued and outstanding Shares of the Company, and Acquisition will be merged
with and into the Company (the "Merger");
WHEREAS, each Stockholder Beneficially Owns (defined herein) the number of
shares, par value $0.01 per share, of common stock (the "Common Stock") of the
Company (the "Shares") set forth opposite each Stockholder's name on Schedule I
hereto;
WHEREAS, as an inducement and a condition to entering into the Merger
Agreement, Parent and Acquisition have required that each Stockholder agree, and
each Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual premises,
representations, warranties, covenants and agreements contained herein, the
parties hereby agree as follows:
Section 1. Agreement to Vote; Irrevocable Proxy.
(a) Each Stockholder hereby agrees that during the period commencing as of
the date of this Agreement and continuing until the first to occur of the
Closing Time or 45 days after the termination of the Merger Agreement in
accordance with its terms, at any meeting of the holders of the Shares, however
called, or in connection with any written consent of the holders of Shares, each
Stockholder shall vote (or cause to be voted) the Shares held of record or
Beneficially Owned (as defined herein) by each Stockholder, whether owned on the
date hereof or hereafter acquired, (i) in favor of approval of the Merger
Agreement, all transactions contemplated thereby, and any actions required in
furtherance thereof and hereof (including election of such directors of the
Company as Parent is entitled to designate pursuant to the Merger Agreement);
(ii) against any action or agreement that is intended, or could reasonably be
expected, to impede, interfere with, or prevent the Offer or the Merger or
result in a breach in any
respect of any covenant, representation or warranty or any other obligation or
agreement of the Company or any of its subsidiaries under the Merger Agreement
or this Agreement; and (iii) except as specifically requested in writing in
advance by Parent, against the following actions (other than the Merger and the
transactions contemplated by the Merger Agreement and this Agreement): (A) any
extraordinary corporate transaction, such as a merger, consolidation or other
business combination involving the Company or any of its subsidiaries or
affiliates; (B) a sale, lease, transfer or disposition by the Company or any of
its subsidiaries of any assets outside the ordinary course of business or any
assets which in the aggregate are material to the Company and its subsidiaries
taken as a whole, or a reorganization, recapitalization, dissolution or
liquidation of the Company or any of its subsidiaries or affiliates; (C)(1) any
change in the present capitalization of the Company or any amendment of the
Company's charter or By-Laws; (2) any other material change in the Company's or
any of its subsidiaries' corporate structure or business; or (3) any other
action that, in the case of each of the matters referred to in clauses (C)(1),
(2) or (3), is intended, or could reasonably be expected, to impede, interfere
with, delay, postpone or materially adversely affect the Offer, the Merger or
the transactions contemplated by this Agreement or the Merger Agreement. None of
the Stockholders shall enter into any agreement or understanding with any Person
(as defined herein) the effect of which would be inconsistent with or violative
of the provisions and agreements contained in Section 1 or 2 hereof.
(b) By his execution hereof and in order to secure his obligations
hereunder, each Stockholder hereby grants to, and appoints ▇▇▇▇▇▇ ▇▇▇▇▇▇ and
▇▇▇▇ ▇▇▇▇▇▇, in their respective capacities as officers of Parent, and any
individual who shall hereafter succeed to any such office of Parent, and any
other designee of Parent, and each of them individually, each Stockholder's true
and lawful irrevocable (until the earlier of the Closing Time or 45 days after
the termination of the Merger Agreement in accordance with its terms (the
"Termination Date")) proxy and attorney-in-fact (with full power of
substitution) to vote the Shares, or grant a consent or approval in respect of
such Shares, as indicated in Section 1(a) above; effective immediately upon the
execution of this Agreement. Each Stockholder intends this proxy to be
irrevocable (from the date of this Agreement until the Termination Date) and
coupled with an interest and will take such further action and execute such
other instruments as may be necessary to effectuate the intent of this proxy and
hereby represents that any proxy heretofore given in respect of his Shares is
not irrevocable, and hereby revokes any proxy previously granted by each
Stockholder with respect to the Shares. Each Stockholder understands and
acknowledges that Parent and Acquisition are entering into the Merger Agreement
in reliance on such Stockholder's execution and delivery of this irrevocable
proxy. Each Stockholder hereby affirms that this irrevocable proxy is given in
connection with the execution of this Agreement and the Merger Agreement, and
further affirms that this irrevocable proxy is coupled with an interest in this
Agreement for the term stated herein and may under no circumstances be revoked.
Each Stockholder hereby ratifies and confirms all that this irrevocable proxy
may
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lawfully do or cause to be done by virtue hereof. This proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the Delaware General Corporation Law. This proxy shall terminate
automatically on the Termination Date.
Section 2. Other Covenants, Representations and Warranties.
Each Stockholder hereby represents, warrants and covenants to Parent and
Acquisition as of the date hereof and as of the Closing Time as follows:
(a) Ownership of Shares. Each Stockholder is the record and Beneficial
Owner of the number of Shares set forth opposite each Stockholder's name on
Schedule I hereto. On the date hereof, the Shares set forth opposite each
Stockholder's name on Schedule I hereto constitute all of the Shares owned of
record or Beneficially Owned by each Stockholder. Each Stockholder owns such
Shares free and clear of all liens, claims, charges, security interests,
mortgages or other encumbrances, and such Shares are subject to no rights of
first refusal, put rights, other rights to purchase or encumber such Shares, or
to any agreements other than this Agreement as to the encumbrance or disposition
of such Shares. Such Shares are duly and validly issued, fully paid and
non-assessable. Each Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 1 hereof, sole
power of disposition, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares set forth opposite
each Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Each Stockholder has the legal capacity,
power and authority to enter into and perform all of such Stockholder's
obligations under this Agreement. The execution, delivery and performance of
this Agreement by each Stockholder will not violate any other agreement to which
each Stockholder is a party including, without limitation, any voting agreement,
shareholder agreement or voting trust. This Agreement has been duly and validly
executed and delivered by each Stockholder and constitutes a valid and binding
agreement of each Stockholder, enforceable against each Stockholder in
accordance with its terms, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and except as the
availability of equitable remedies may be limited by the application of general
principles of equity (regardless of whether such equitable principles are
applied in a proceeding at law or in equity). There is no beneficiary or holder
of a voting trust certificate or other interest of any trust of which each
Stockholder is trustee who is not a party to this Agreement and whose consent is
required for the execution and delivery of this Agreement or the consummation by
each Stockholder of the transactions contemplated hereby. If any Stockholder is
married and such Stockholder's Shares constitute community property, this
Agreement has been duly authorized, executed and delivered by, and constitutes a
valid and binding
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agreement of, such Stockholder's spouse, enforceable against such person in
accordance with its terms, except as such enforceability may be limited by any
applicable bankruptcy, insolvency, reorganization, moratorium or other similar
laws affecting the enforcement of creditors' rights generally, and except as the
availability of equitable remedies may be limited by the application of general
principles of equity (regardless of whether such equitable principles are
applied in a proceeding at law or in equity).
(c) No Conflicts. (i) Except for filings, permits, authorizations, consents
and approvals as may be required under and other applicable requirements of the
HSR Act, no filing with, and no permit, authorization, consent or approval of,
any state or federal public body or authority is necessary for the execution of
this Agreement by each Stockholder and the consummation by each Stockholder of
the transactions contemplated hereby and (ii) none of the execution or delivery
of this Agreement by each Stockholder, the consummation by each Stockholder of
the transactions contemplated hereby or compliance by each Stockholder with any
of the provisions hereof shall (A) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, bond, mortgage, indenture, license, contract, commitment,
arrangement, understanding, agreement or other instrument or obligation of any
kind to which each Stockholder is a party or by which each Stockholder or any of
such Stockholder's properties or assets may be bound, or (B) violate any order,
writ, injunction, decree, judgment, order, statute, rule or regulation
applicable to each Stockholder or any of each Stockholder's properties or
assets. This Agreement supersedes all prior agreements to which each Stockholder
is a party with respect to such Stockholder's Shares.
(d) No Finder's Fees. No broker, investment banker, financial adviser or
other person is entitled to any broker's, finder's, financial adviser's or other
similar fee or commission in connection with the transactions contemplated by
the Merger Agreement based upon arrangements made by or on behalf of any
Stockholder.
(e) Other Potential Acquirers. Each Stockholder (i) shall immediately cease
any existing discussions or negotiations, if any, with any parties conducted
heretofore with respect to any acquisition of all or any material portion of the
assets of, or any equity interest in, the Company or any of its subsidiaries or
any business combination with the Company or any of its subsidiaries, in his or
her capacity as such, and (ii) from and after the date hereof until termination
of the Merger Agreement in accordance with its terms, shall not, in its or his
capacity as a stockholder of the Company, directly or indirectly, initiate,
solicit or knowingly encourage (including by way of furnishing non-public
information or assistance), or take any other action to facilitate knowingly,
any inquiries or the making of any proposal that constitutes, or may reasonably
be expected to lead to, any such transaction or acquisition, or agree to or
endorse any such transaction or acquisition, or authorize or permit any of each
Stockholder's agents to do so, and each Stockholder shall promptly notify Parent
of any
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proposal and shall provide a copy of any such written proposal and a summary of
any oral proposal to Parent immediately after receipt thereof (and shall specify
the material terms and conditions of such proposal and identify the person
making such proposal) and thereafter keep Parent advised of any development with
respect thereto.
(f) Tender of Shares; Restriction on Transfer, Proxies and
Non-Interference. Each of the Stockholders shall tender his or its Shares in the
Offer (as defined in the Merger Agreement) and shall not withdraw such Shares
therefrom unless and until the Merger Agreement is terminated in accordance with
its terms without such Shares being purchased by Acquisition pursuant to the
Offer. None of the Stockholders shall, directly or indirectly: (i) tender his or
its Shares in any other tender offer or exchange offer for the Shares; (ii)
except as contemplated by this Agreement or the Merger Agreement, otherwise
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
any such Stockholder's Shares or any interest therein; (iii) grant any proxies
or powers of attorney, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iv) take any action that would
make any representation or warranty of any such Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling such
Stockholder from performing such Stockholder's obligations under this Agreement.
(g) Reliance by Parent and Acquisition. Each Stockholder understands and
acknowledges that Parent and Acquisition are relying upon the foregoing
representations, warranties and covenants by such Stockholder, and on each
Stockholder's execution and delivery of this Agreement in entering into the
Merger Agreement.
Section 3. Further Assurances; Merger Agreement Compliance.
From time to time, at Parent's request and without further consideration,
each Stockholder agrees to execute and deliver such additional documents and
take all such further lawful action as may be necessary or desirable to
consummate and make effective, and to cause the Company to consummate and make
effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement.
Section 4. Stop Transfer; Form of Legend.
(a) Each Stockholder agrees with, and covenants to, Parent that each
Stockholder shall not request that the Company register the transfer (book-entry
or otherwise) of any certificate or uncertificated interest representing any of
each Stockholder's Shares, without the consent of the Parent. In the event of a
stock dividend or distribution, or any change in the Shares by reason of any
stock dividend, split-up, recapitalization, combination, exchange of shares or
the like, the term "Shares"
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shall be deemed to refer to and include the Shares as well as all such stock
dividends and distributions and any shares into which or for which any or all of
the Shares may be changed or exchanged.
(b) If reasonably requested by Parent, all certificates representing any of
each Stockholder's Shares shall contain the following legend:
"The securities represented by this certificate
are subject to certain restrictions on transfer and
other terms of a Stockholders Agreement, dated as of
June 10, 1999, among Ion Beam Applications S.A., Ion
Beam Applications G.P., IBA Acquisition Corporation,
and the parties listed on the signatures pages thereto,
a copy of which is on file in the principal office of
Ion Beam Applications S.A."
Section 5. The Options.
Each Stockholder hereby agrees as follows:
(a) Grant of Options. Subject to the terms of this Section 5, each
Stockholder hereby grants to Parent (or its designee), effective upon the
execution hereof, an irrevocable option (each, an "Option") to purchase all
Shares held of record or Beneficially Owned by each such Stockholder at a
purchase price per Share equal to the greater of $27 or such higher price as may
be offered by Acquisition in the Offer (the "Option Price").
(b) Exercise of Options. Parent may exercise the Options, in whole or in
part, at any time and from time to time, following the occurrence of a Purchase
Event (as defined below); provided that any Options not theretofore exercised
shall expire and be of no further force and effect upon the earliest to occur
(the "Expiration Date") of (i) the Closing Time; (ii) forty-five days after the
first occurrence of a Purchase Event; or (iii) forty-five days after the
termination of the Merger Agreement in accordance with Section 9.1(c)(i), (ii)
or (iii) of the Merger Agreement; provided, however, that in the case of clauses
(ii) and (iii) above, the Expiration Date shall be extended for a period not to
extend beyond March 31, 2000 in the event that clearance under the
▇▇▇▇-▇▇▇▇▇-▇▇▇▇▇▇ Antitrust Improvements Act of 1976, as amended (the "HSR Act")
is required by Parent to acquire the Shares; provided, further that Parent is
using all reasonable efforts to obtain such clearance.
As used herein, a "Purchase Event" shall mean any of the following events
that occurs after the date hereof:
(i) Beneficial Ownership of more than 20% of the outstanding capital
stock of the Company (or rights to acquire such capital stock of the
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Company) shall have been acquired by any Person or "group" other than
Parent, Acquisition, or any affiliate of any of them;
(ii) the Company shall have entered into a definitive agreement or
approved or recommended any proposal which provides for the acquisition of
20% or more of the outstanding capital stock of the Company or
substantially all of the assets of the Company by any Person or group other
than Parent, Acquisition, or an affiliate of any of them;
(iii) (A) the failure of the Company's stockholders to approve the
Merger Agreement or the transactions contemplated thereby at a meeting
called to consider such Merger Agreement, if such meeting shall have been
preceded by (x) the public announcement by any Person or group (other than
Parent, Acquisition or an affiliate of any of them) of an offer or proposal
to acquire, merge or consolidate with the Company, or (y) the Board of
Directors of the Company publicly withdrawing or modifying, or publicly
announcing its intent to withdraw or modify, its recommendation that the
stockholders of the Company approve the transactions contemplated by the
Merger Agreement or (B) the acceptance by the Company' Board of Directors
of, or the public recommendation by the Company's Board of Directors that
the stockholders of the Company accept, an offer or proposal from any
Person or group (other than Parent, Acquisition or an affiliate of any of
them), to acquire 20% or more of the outstanding capital stock of the
Company or for a merger or consolidation or any similar transaction
involving the Company;
(iv) the making of an Acquisition Proposal as described in Section 5.3
of the Merger Agreement which would entitle Parent or the Company to
terminate the Merger Agreement pursuant to Section 9.1 of the Merger
Agreement; or
(v) any breach by the Stockholder of this Agreement.
(c) Notice of Exercise. To exercise an Option, Parent shall, prior to the
Expiration Date, give written notice to each Stockholder specifying the location
in Palo Alto, California and time for the closing (the "Option Closing") of such
purchase. The Option Closing shall be held on the date that is no later than
three business days after the date on which each of the conditions set forth in
Section 5(d) below has been satisfied or waived by Parent.
(d) Conditions to Option Closing Following Exercise of Options. The
occurrence of the Option Closing shall be subject to the satisfaction of each of
the following conditions:
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(i) to the extent necessary, any applicable waiting periods (and any
extension thereof) under the HSR Act with respect to the purchase of the
Shares following the exercise of an Option shall have expired or been
terminated; and
(ii) no preliminary or permanent injunction or other order, decree or
ruling issued by any court of governmental or regulatory authority,
domestic or foreign, of competent jurisdiction prohibiting the exercise of
an Option or the delivery of Shares shall be in effect.
The foregoing conditions may be waived solely by Parent, provided that no
Stockholder would incur any material liability as a result of such waiver.
(e) Transferability of Options. Parent may sell or transfer the Options and
any Shares acquired upon exercise of an Option at any time, without the written
consent of each Stockholder, to any affiliate or affiliates of Parent,
Acquisition or an affiliate of any of them.
(f) Payment for and Delivery of Certificates. At the Option Closing, (i)
Parent (or its designee) shall pay, by check, an amount equal to the product of
(x) the Option Price and (y) the number of Shares owned by each Stockholder; and
(ii) each Stockholder shall deliver or shall cause to be delivered to Parent a
certificate or certificates evidencing each Stockholder's Shares, and each
Stockholder agrees that such Shares shall be transferred free and clear of all
liens. All such certificates representing Shares shall be duly endorsed in
blank, or with appropriate stock powers, duly executed in blank, attached
thereto, in proper form for transfer, with the signature of each Stockholder
thereon guaranteed, and with all applicable taxes paid or provided for.
Section 6. Termination.
Except as otherwise provided herein, the covenants and agreements contained
herein with respect to the Shares shall terminate upon the earliest of (a)
termination of the Merger Agreement in accordance with its terms, or (b) the
Effective Time.
Section 7. Stockholder Capacity.
No person executing this Agreement who is or becomes during the term hereof
a director or executive officer of the Company makes any agreement or
understanding herein in his or her capacity as such director or executive
officer. Each Stockholder signs solely in his capacity as the record and/or
beneficial owner of each Stockholder's Shares.
Section 8. Waiver of Appraisal and Dissenter's Rights.
Each Stockholder hereby irrevocably waives any rights of appraisal or
rights to dissent from the Merger that each Stockholder may have.
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Section 9. Miscellaneous.
(a) Certain Definitions. As used in this Agreement, the following
capitalized terms shall have the following meanings:
(i) "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean having "beneficial ownership" of such securities (as
determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same
holder, securities Beneficially Owned by a Person shall include securities
Beneficially Owned by all other Persons with whom such Person would
constitute a "group" as within the meanings of Section 13(d)(3) of the
Exchange Act.
(ii) "Misstatement" means an untrue statement of a material fact or an
omission to state a material fact required to be stated in a publicly-filed
document necessary to make the statements in such a document not
misleading.
(iii) "Person" shall mean an individual, corporation, partnership,
joint venture, association, trust, unincorporated organization or other
entity.
(iv) "register," "registered," and "registration" refer to a
registration effected by preparing and filing with the SEC a registration
statement in compliance with the Securities Act and the declaration or
ordering by the SEC of effectiveness of such registration statement.
(v) "subsidiary" or "subsidiaries" of Parent, Acquisition, the Company
or any other person means any corporation, partnership, limited liability
company, association, trust, unincorporated association or other legal
entity of which the Parent, Acquisition, the Company or any such other
person, as the case may be, (either alone or through or together with any
other subsidiary) owns, directly or indirectly, 50% or more of the capital
stock the holders of which are generally entitled to vote for the election
of the board of directors or other governing body of such corporation or
other legal entity.
(b) Entire Agreement. This Agreement and the Merger Agreement constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersede all other prior agreements and understandings, both written
and oral, between the parties with respect to the subject matter hereof.
(c) Certain Events. Each Stockholder agrees that this Agreement and the
obligations hereunder shall attach to each Stockholder's Shares and shall be
binding upon any person or entity to which legal or beneficial ownership of such
Shares shall pass, whether by operation of law or otherwise, including, without
limitation, each
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Stockholder's heirs, guardians, administrators or successors. Notwithstanding
any transfer of Shares, the transferor shall remain liable for the performance
of all obligations under this Agreement of the transferor.
(d) Assignment. This Agreement may not be assigned by any Stockholder
without the consent of Parent. Parent may assign, in its sole discretion, its
rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of Parent, but no such assignment shall relieve Parent of its
obligations hereunder if such assignee does not perform such obligations.
(e) Amendments, Waivers, Etc. This Agreement may not be amended, changed,
supplemented, waived or otherwise modified or terminated, with respect to each
Stockholder, except upon the execution and delivery of a written agreement
executed by the relevant parties hereto; provided that Schedule I hereto may be
supplemented by Parent by adding the name and other relevant information
concerning any stockholder of the Company who agrees to be bound by the terms of
this Agreement (by executing a counterpart signature page hereof) without the
agreement of any other party hereto, and thereafter such added stockholder shall
be treated as a "Stockholder" for all purposes of this Agreement.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be addressed to the
respective parties at the following addresses:
If to each Stockholder: At the address set forth on Schedule I
hereto.
If to Parent or Acquisition: Ion Beam Applications S.A.
▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇, ▇
▇-▇▇▇▇ ▇▇▇▇▇▇▇-▇▇-▇▇▇▇▇, ▇▇▇▇▇▇▇
Telephone: ▇▇▇-▇▇-▇▇-▇▇-▇▇▇▇
Telecopier: 011-32-10-47-5810
Attention: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇, Chief
Executive Officer
with a copy to: ▇▇▇▇▇▇ & Whitney LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇, Esq.
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or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion of any
provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto recognizes and
acknowledges that a breach by it of any covenants or agreements contained in
this Agreement will cause the other party to sustain damages for which it would
not have an adequate remedy at law for money damages, and therefore each of the
parties hereto agrees that in the event of any such breach the aggrieved party
shall be entitled to the remedy of specific performance of such covenants and
agreements and injunctive and other equitable relief in addition to any other
remedy to which it may be entitled, at law or in equity.
(i) Remedies Cumulative. All rights, powers and remedies provided under
this Agreement or otherwise available in respect hereof at law or in equity
shall be cumulative and not alternative, and the exercise of any thereof by any
party shall not preclude the simultaneous or later exercise of any other such
right, power or remedy by such party.
(j) No Waiver. The failure of any party hereto to exercise any right, power
or remedy provided under this Agreement or otherwise available in respect hereof
at law or in equity, or to insist upon compliance by any other party hereto with
its obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof, shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
(k) No Third Party Beneficiaries. This Agreement is not intended to be for
the benefit of, and shall not be enforceable by, any person or entity who or
which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and construed in
accordance with the laws of the State of Delaware, without giving effect to the
principles of conflicts of laws thereof.
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(m) Descriptive Headings. The descriptive headings used herein are inserted
for convenience of reference only and are not intended to be part of or to
affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same Agreement.
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IN WITNESS WHEREOF, Parent and Acquisition have caused this Agreement to be
duly executed, and each Stockholder has duly executed this Agreement, as of the
day and year first above written.
ION BEAM APPLICATIONS S.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
ION BEAM APPLICATIONS G.P.
By: ION BEAM APPLICATIONS S.A.,
Its Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
Chief Executive Officer
IBA ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
---------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇
STOCKHOLDERS:
Schedule I
Number of
Name of Stockholder Address Shares Owned
------------------- ------- ------------
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇. Revocable ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ 20,962
Trust Dated December 17, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, III Trust ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ 81,050
Dated April 15, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ Trust ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ 81,050
Dated April 15, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇ Trust ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ 81,050
Dated April 15, 1983 Los Gatos, California 95032
KFFP II, L.P., a California ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ 400,000
Limited Partnership ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
KFFP III, L.P., a California ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ 1,800,000
Limited Partnership ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
The King Family Trust ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇ 30,200
Dated December 16, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
EXHIBIT A
MERGER AGREEMENT