Exhibit 99.D
VOTING AGREEMENT
VOTING AGREEMENT (the "Agreement"), dated as of October 23, 2001, between
Xxxxxxx XxXxxxx ("Stockholder"), who is a security holder of Xxxxxx Automation,
Inc., a Delaware corporation ("Xxxxxx"), and PRI Automation Inc. Corporation, a
Massachusetts corporation ("PRI").
WHEREAS, concurrently with the execution of this Agreement, PRI, Xxxxxx
and Pontiac Acquisition Corp, a Massachusetts corporation and wholly owned
subsidiary of Xxxxxx ("Merger Sub"), have entered into an Agreement and Plan of
Merger (as the same may be amended from time to time, the "Merger Agreement"),
providing for the merger of Merger Sub with and into PRI, wherein PRI will be
the surviving corporation and become a wholly owned subsidiary of Xxxxxx (the
"Merger") pursuant to the terms and conditions of the Merger Agreement or a
comparable transaction;
WHEREAS, Stockholder owns of record and beneficially the number of
outstanding shares of capital stock of Xxxxxx set forth as "Owned Shares" on
SCHEDULE A and has voting power over such additional number of outstanding
shares of capital stock of Xxxxxx, if any, set forth as "Controlled Shares" on
SCHEDULE A (collectively, the Owned Shares and the Controlled Shares are
referred to as the "Shares"), and wishes to enter into this Agreement with
respect to all of such Shares and any additional shares hereafter acquired; and
WHEREAS, in order to induce PRI to enter into the Merger Agreement,
Stockholder has agreed, upon the terms and subject to the conditions set forth
herein, to vote the Shares and any additional shares hereafter acquired, and to
grant an irrevocable proxy to PRI to vote the Shares and any additional shares
hereafter acquired, at every meeting of Xxxxxx' stockholders in favor of
approval and adoption of the Merger Agreement, the Merger and all agreements and
actions related to the Merger;
NOW THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. AGREEMENT TO VOTE SHARES. Stockholder agrees during the term of this
Agreement to vote all the Shares and any other capital stock that Stockholder
becomes entitled to vote, whether through contract, purchase, exercise of an
option or otherwise ("Additional Shares") to approve and adopt the Merger
Agreement, the Merger and all agreements and actions related to the Merger at
every meeting of the stockholders of Xxxxxx, and at every adjournment thereof,
at which such Merger Agreement and other related agreements (or any amended
version thereof), or such other related actions, are submitted for the
consideration and vote of the stockholders of Xxxxxx. Stockholder hereby agrees
that Stockholder will not vote any Shares or Additional Shares in favor of the
approval of any (i) reorganization, recapitalization, liquidation or winding up
of Xxxxxx or any other extraordinary transaction involving Xxxxxx, (ii)
corporate action the consummation of which would frustrate the purposes, or
prevent or delay the consummation, of the transactions contemplated by the
Merger Agreement, or (iii) other matter relating to, or in connection with, any
of the foregoing matters.
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2. IRREVOCABLE PROXY. Stockholder hereby revokes any and all previous
proxies granted with respect to the Shares and/or any Additional Shares.
Stockholder hereby grants a proxy appointing PRI as Stockholder's
attorney-in-fact and proxy, with full power of substitution, for and in
Stockholder's name, to vote, express consent or dissent, or otherwise to utilize
such voting power in such manner and upon such matters as PRI or its proxy or
substitute shall, in PRI's sole discretion, deem proper with respect to the
Shares and the Additional Shares. Simultaneously with the execution and delivery
of this Agreement, Stockholder is delivering to PRI a proxy in the form of Annex
A hereto. The proxy granted by Stockholder pursuant to this Section 2 is
irrevocable to the extent permitted by Delaware law, is coupled with an interest
and is granted in consideration of PRI's entering into the Merger Agreement and
incurring certain related fees and expenses, and in consideration of and
reliance upon certain other Xxxxxx stockholder's entering into agreements
substantially similar to this Agreement. The proxy hereby granted by Stockholder
shall terminate in accordance with Section 9.
3. VALID TITLE. Stockholder is the sole, true, lawful record and
beneficial owner of the Owned Shares, and there are no restrictions on
Stockholder's voting rights with respect thereto or contractual restrictions on
Stockholder's rights of disposition with respect thereto. None of the Owned
Shares is subject to any voting trust or other agreement or arrangement with
respect to the voting of such Owned Shares. Stockholder has the sole right to
vote the shares, if any, listed as Controlled Shares on SCHEDULE A hereto.
4. NON-CONTRAVENTION. Stockholder represents that the execution, delivery
and performance by Stockholder of this Agreement and the consummation by
Stockholder of the transactions contemplated hereby (i) are within Stockholder's
power and have been duly authorized by all necessary action (including any
approval or other action by or with any other person), (ii) require no action by
or in respect of, or filing with, any governmental body, agency, official or
authority (except as may be required under the Xxxx-Xxxxx-Xxxxxx Antitrust
Improvements Act ("HSR Act") or by Regulation 13D-G under the Securities
Exchange Act of 1934), (iii) do not and will not violate any statute, rule or
regulation applicable to Stockholder (except that the pre-merger notification
requirements of the HSR Act may apply), or any injunction, order or decree
binding on Stockholder, and (iv) will not result in the imposition of any lien
on any Shares or Additional Shares.
5. BINDING. Stockholder represents that this Agreement has been duly
executed and delivered by Stockholder and is the valid and binding agreement of
Stockholder, enforceable against Stockholder in accordance with its terms,
except (i) as such enforceability may be limited by bankruptcy, insolvency,
reorganization or similar laws affecting creditors' rights generally, and (ii)
that the remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the discretion of
the court before which any proceeding therefore may be brought. If this
Agreement is being executed in a representative or fiduciary capacity, the
person signing this Agreement has full power and authority to enter into and
perform this Agreement.
6. NO PROXIES FOR OR ENCUMBRANCES ON STOCKHOLDER'S SHARES. Except as
provided in this Agreement, Stockholder agrees that Stockholder shall not,
during the term of this Agreement, without the prior written consent of PRI,
directly or indirectly, (i) grant any proxies or enter into any voting trust or
other agreement or arrangement with respect to the voting of any
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Shares or Additional Shares or (ii) sell, assign, transfer, encumber or
otherwise dispose of, or solicit the sale, assignment, transfer, encumbrance or
other disposition of, or enter into any contract, option or other arrangement or
understanding with respect to the direct or indirect sale, assignment, transfer,
encumbrance or other disposition of, any Shares or Additional Shares; PROVIDED,
HOWEVER, that Stockholder may assign or transfer any Shares or Additional Shares
for estate planning or charitable purposes to any person who shall have executed
and delivered to PRI prior to such assignment or transfer a voting agreement
substantially identical to this Agreement with respect to any Shares and
Additional Shares to be received by such person in such assignment or transfer.
Stockholder agrees to notify PRI promptly and to provide all details
required by PRI if Stockholder shall be approached or solicited, directly or
indirectly, by any person with respect to any of the foregoing.
7. CONDUCT OF STOCKHOLDERS. Stockholder agrees that Stockholder will not
(i) take, or commit to take, any action that would make any representation and
warranty of Stockholder hereunder inaccurate in any respect as of any time prior
to the termination of this Agreement or (ii) omit, or commit to omit, to take
any reasonable action that is within Stockholder's power without undue expense
and that is necessary to prevent any such representation or warranty from being
inaccurate in any respect at any such time.
8. SPECIFIC PERFORMANCE. Stockholder acknowledges that it will be
impossible to measure in money the damage to PRI if Stockholder fails to comply
with the obligations imposed by this Agreement, and that, in the event of any
such failure, PRI will not have an adequate remedy at law or in damages.
Accordingly, Stockholder agrees that injunctive relief or other equitable
remedy, in addition to remedies at law or in damages, is the appropriate remedy
for any such failure, and will not oppose the granting of such relief on the
basis that PRI has an adequate remedy at law or in damages. Stockholder agrees
that Stockholder will not seek, and agrees to waive any requirement for, the
securing or posting of a bond in connection with PRI's seeking or obtaining such
equitable relief.
9. TERM OF AGREEMENT; TERMINATION. Subject to Section 13(e), the term of
this Agreement shall commence on the date hereof and such term, this Agreement
and the proxy(ies) granted in and pursuant to Section 2 hereof shall terminate
upon the earlier to occur of (i) the Effective Time (as defined in the Merger
Agreement), and (ii) the date on which the Merger Agreement is terminated in
accordance with its terms. Upon such termination, no party shall have any
further obligations or liabilities hereunder; PROVIDED, that such termination
shall not relieve any party from liability for any breach of this Agreement
prior to such termination.
10. FURTHER ASSURANCES. Except as otherwise provided in the Merger
Agreement, Stockholder will execute and deliver or cause to be executed and
delivered such further documents and instruments and use Stockholder's best
efforts to take such further actions as may be reasonably necessary in order to
consummate the transactions contemplated hereby or to enable PRI and any
assignee to exercise and enjoy all voting rights of Stockholder with respect to
the Shares and any Additional Shares.
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11. ENTIRE AGREEMENT. This Agreement supersedes all prior agreements,
written or oral, between the parties hereto with respect to the subject matter
hereof and contains the entire agreement between the parties with respect to the
subject matter hereof. This Agreement may not be amended, supplemented or
modified, and no provisions hereof may be modified or waived, except by an
instrument in writing signed by the parties hereto. No waiver of any provision
hereof by any party shall be deemed a waiver of any other provision hereof by
such party, nor shall any such waiver be deemed a continuing waiver of any
provision hereof by such party.
12. NOTICES. All notices, requests, claims, demands or other
communications hereunder shall be in writing and shall be deemed given when
delivered personally, upon receipt of a transmission confirmation if sent by
facsimile or like transmission (with confirmation) and on the next business day
when sent by Federal Express, Express mail or other reputable overnight courier
service to the parties at the following addresses (or at such other address for
a party as shall be specified by like notice):
If to PRI:
PRI Automation, Inc.
000 Xxxxxxxxx Xxxxxxxx
Xxxxxxxxx, XX 00000
Attention: President
Fax: (000) 000-0000
With a copy to:
Xxxxx, Xxxx & Xxxxx LLP
Xxx Xxxx Xxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxx, Xx., Esq.
Fax: (000) 000-0000
If to Stockholder:
Xxxxxxx XxXxxxx
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
Fax: ______________
With a copy to Xxxxxx:
Xxxxxx Automation, Inc.
00 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxxx
Fax: (000) 000-0000
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and a copy to:
Xxxxx Xxxxxxx Xxxxx & Gesmer
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxxxx, Esq.
Fax: (000) 000-0000
13. MISCELLANEOUS.
(a) This Agreement shall be deemed a contract made under, and for all
purposes shall be construed in accordance with, the laws of the State of
Delaware, without regard to its principles of conflicts of laws. Each of the
parties hereby: (a) irrevocably submits to the jurisdiction of the Courts of the
Commonwealth of Massachusetts and the federal courts of the United States of
America located in the Commonwealth of Massachusetts solely in respect of the
interpretation and enforcement of the provisions of this Agreement and in
respect of the transactions contemplated hereby; (b) waives, and agrees not to
assert, as a defense in any action, suit or proceeding for the interpretation or
enforcement hereof, that it is not subject to such jurisdiction or that such
action, suit or proceeding may not be brought or is not maintainable in said
courts or that the venue thereof may not be appropriate or that this Agreement
may not be interpreted or enforced in or by such courts; and (c) irrevocably
agrees that all claims with respect to such action, suit or proceeding shall be
heard and determined in such courts. Each party hereto hereby consents to and
grants any such court's jurisdiction over the person of such party and over the
subject matter of such dispute and agrees that mailing of process or other
papers in connection with any such action, suit or proceeding in the manner
provided in Section 12, or in such other manner as may be permitted by law,
shall be valid and sufficient service thereof.
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid or unenforceable
by a court of competent jurisdiction, such provision or application shall be
unenforceable only to the extent of such invalidity or unenforceability, and the
remainder of the provisions not held invalid or unenforceable and the
application of such provisions to persons or circumstances other than the party
as to which it is held invalid, and the remainder of this Agreement, shall not
be affected.
(c) This Agreement may be executed in one or more counterparts, each of
which shall be deemed to be an original but all of which together shall
constitute one and the same instrument.
(d) All Section headings herein are for convenience of reference only and
are not part of this Agreement, and no construction or reference shall be
derived therefrom.
(e) The obligations of Stockholder set forth in this Agreement shall not
be effective or binding upon Stockholder until after such time as the Merger
Agreement is executed and delivered by PRI, Xxxxxx and Merger Sub, and the
parties agree that there is not and has not been
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any other agreement, arrangement or understanding between the parties hereto
with respect to the matters set forth herein.
[Signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this
Agreement as of the date first written above.
PRI AUTOMATION, INC.
By: /s/ Xxxxx X. Xxxxxxx
--------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Treasurer and Chief Financial Officer
STOCKHOLDER
Name: /s/ Xxxxxxx XxXxxxx
------------------------------------------
Xxxxxxx XxXxxxx
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Annex A
PROXY
The undersigned, for consideration received, hereby appoints PRI
Corporation, a Massachusetts corporation ("PRI"), its proxy, with full power of
substitution, to vote all shares of capital stock owned or later acquired by the
undersigned, and all shares that the undersigned is or becomes entitled to vote
pursuant to contract, trust, deed or otherwise, at any meeting of stockholders
of Xxxxxx Corporation, a Delaware corporation ("Xxxxxx"), and at any adjournment
thereof, to be held for the purpose of voting upon a proposal to approve and
adopt the Agreement and Plan of Merger, dated as of October 23, 2001 (the
"Merger Agreement"), by and among PRI, Xxxxxx and Pontiac Acquisition Corp., a
Massachusetts corporation ("Merger Sub"), the Merger (as defined in the Merger
Agreement) and all agreements and actions related to the Merger FOR such
proposal. This proxy is subject to the terms of the Voting Agreement dated as of
October 23, 2001 between the undersigned and PRI, a copy of which is attached
hereto (the "Voting Agreement"), is coupled with an interest, revokes all prior
proxies granted by the undersigned with respect to such shares, is irrevocable
and shall terminate and be of no further force or effect automatically at such
time as the Voting Agreement terminates in accordance with its terms.
Dated: October 23, 2001
STOCKHOLDER
/s/ Xxxxxxx XxXxxxx
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Signature
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SCHEDULE A
NAME AND ADDRESS OF STOCKHOLDER OWNED SHARES CONTROLLED SHARES
------------------------------- ------------ -----------------
Xxxxxxx XxXxxxx 561
00 Xxxxxxx Xxxx
Xxxxxxx, XX 00000
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