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EXHIBIT (C)(5)
TENDER AND VOTING AGREEMENT
TENDER AND VOTING AGREEMENT, dated as of December 20, 1999
(this "Agreement"), between Oerlikon-Xxxxxx USA, Inc., a Delaware corporation
("Parent"), Volcano Acquisition Corp., a Florida corporation and a wholly owned
subsidiary of Parent ("Merger Sub") and each of the persons listed on Schedule
A hereto (each a "Shareholder" and, collectively, the "Shareholders").
RECITALS
WHEREAS, Parent, Merger Sub and Plasma-Therm, Inc., a Florida
corporation (the "Company") propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement") providing for, among other things, the making of the
Offer by Merger Sub for all of the issued and outstanding shares of common
stock, par value $0.01 per share, of the Company (referred to herein as either
the "Shares" or "Common Stock") and the merger of Merger Sub with and into the
Company on the terms and conditions set forth in the Merger Agreement (the
"Merger");
WHEREAS, each Shareholder is the beneficial owner of the
Shares and Company Options set forth opposite such Shareholder's name on
Schedule A hereto (collectively referred to herein as the "Shares" of such
Shareholder); such Shares, as such Shares may be adjusted by stock dividend,
stock split, recapitalization, combination or exchange of shares, merger,
consolidation, reorganization or other change or transaction of or by the
Company, together with Shares issuable upon the exercise of Company Options;
and
WHEREAS, as a condition to their willingness to enter into
the Merger Agreement, Parent and Merger Sub have requested that the
Shareholders enter into this Agreement;
NOW, THEREFORE, to induce Parent and Merger Sub to enter
into, and in consideration of their entering into, the Merger Agreement, and in
consideration of the premises and the representations, warranties and
agreements contained herein, the parties agree as follows:
Section 1. Certain Definitions. Capitalized terms used but not
otherwise defined herein have the meanings ascribed to such terms in the Merger
Agreement.
Section 2. Representations and Warranties of the Shareholders. Each
Shareholder, severally and not jointly, represents and warrants to Parent and
Merger Sub, as of the date hereof, as follows:
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(a) The Shareholder is the beneficial owner (as defined in
Rule 13d-3 under the Exchange Act) of, and has good title to, all of the Shares
(including the Company Options), free and clear of any mortgage, pledge,
hypothecation, rights of others, claim, security interest, charge, encumbrance,
title defect, title retention agreement, voting trust agreement, interest,
option, lien, charge or similar restriction or limitation, including any
restriction on the right to vote, sell or otherwise dispose of the Shares
(each, a "Lien"), except as set forth in this Agreement.
(b) The Shares (including the Company Options) constitute all
of the securities (as defined in Section 3(a)(10) of the Exchange Act), of the
Company beneficially owned, directly or indirectly, by the Shareholder.
(c) Except for the Shares (including the Company Options),
the Shareholder does not, directly or indirectly, beneficially own or have any
option, warrant or other right to acquire any securities of the Company that
are or may by their terms become entitled to vote or any securities that are
convertible or exchangeable into or exercisable for any securities of the
Company that are or may by their terms become entitled to vote, nor is the
Shareholder subject to any contract, commitment, arrangement, understanding,
restriction or relationship (whether or not legally enforceable), other than
this Agreement, that provides for such Shareholder to vote or acquire any
securities of the Company. The Shareholder holds exclusive power to vote the
Shares and has not granted a proxy to any other Person to vote the Shares,
subject to the limitations set forth in this Agreement.
(d) This Agreement has been duly executed and delivered by
the Shareholder and, assuming due authorization, execution and delivery of this
Agreement by Parent and Merger Sub, is a valid and binding obligation of the
Shareholder enforceable against the Shareholder in accordance with its terms,
except as such enforceability may be limited by (i) applicable bankruptcy,
insolvency, reorganization, moratorium or other similar laws affecting the
enforcement of creditors' rights generally; and (ii) general principles of
equity (regardless of whether such enforceability is considered in a proceeding
in equity or at law).
(e) Neither the execution and delivery of this Agreement nor
the performance by the Shareholder of the Shareholder's obligations hereunder
will conflict with, result in a violation or breach of, or constitute a default
(or an event that, with notice or lapse of time or both, would result in a
default) or give rise to any right of termination, amendment, cancellation, or
acceleration or result in the
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creation of any Lien on any Shares under, (i) any contract, commitment,
agreement, understanding, arrangement or restriction of any kind to which the
Shareholder is a party or by which the Shareholder is bound or (ii) any
injunction, judgment, writ, decree, order or ruling applicable to the
Shareholder; except for conflicts, violations, breaches, defaults,
terminations, amendments, cancellations, accelerations or Liens that would not
individually or in the aggregate be expected to prevent or materially impair or
delay the consummation by such Shareholder of the transactions contemplated
hereby.
(f) Neither the execution and delivery of this Agreement nor
the performance by the Shareholder of the Shareholder's obligations hereunder
will violate any Law applicable to the Shareholder or require any order,
consent, authorization or approval of, filing or registration with, or
declaration or notice to, any court, administrative agency or other
governmental body or authority, other than any required notices or filings
pursuant to the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as
amended, and the rules and regulations promulgated thereunder (the "HSR Act"),
foreign antitrust or competition laws, the Exon-Xxxxxx Amendment or the federal
securities laws.
(g) No investment banker, broker, finder or other
intermediary is, or will be, entitled to a fee or commission from Merger Sub,
Parent or the Company in respect of this Agreement based on any arrangement or
agreement made by or on behalf of such Shareholder in his or her capacity as a
shareholder of the Company.
(h) The Shareholder understands and acknowledges that Parent
is entering into, and causing Merger Sub to enter into, the Merger Agreement in
reliance upon the Shareholder's execution and delivery of this Agreement.
Section 3. Representations and Warranties of Parent and Merger Sub.
Parent and Merger Sub hereby make each of the representations and warranties
contained in Sections 7.3(a), 7.4 and 7.5 of the Merger Agreement, as of the
date hereof, as if such representations were set forth herein.
Section 4. Transfer of the Shares. During the term of this
Agreement, except as otherwise expressly provided herein, each Shareholder
agrees that such Shareholder will not (a) tender into any tender or exchange
offer or otherwise sell, transfer, pledge, assign, hypothecate or otherwise
dispose of, or encumber with any Lien, any of the Shares, (b) acquire any
shares of Common Stock or other securities of the Company (otherwise than in
connection with a transaction of the type described in Section 5 or by
exercising any of the Company Options), (c)
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deposit the Shares into a voting trust, enter into a voting agreement or
arrangement with respect to the Shares or grant any proxy or power of attorney
with respect to the Shares, (d) enter into any contract, option or other
arrangement (including any profit sharing arrangement) or undertaking with
respect to the direct or indirect acquisition or sale, transfer, pledge,
assignment, hypothecation or other disposition of any interest in or the voting
of any Shares or any other securities of the Company, (e) exercise any rights
(including, without limitation, under Section 607.1301 through 607.1320 of the
Florida Business Corporation Act) to demand appraisal of any Shares which may
arise with respect to the Merger, or (f) take any other action that would in
any way restrict, limit or interfere with the performance of such Shareholder's
obligations hereunder or the transactions contemplated hereby or which would
otherwise diminish the benefits of this Agreement to Parent or Merger Sub.
Section 5. Adjustments. (a) In the event (i) of any stock dividend,
stock split, recapitalization, reclassification, combination or exchange of
shares of capital stock or other securities of the Company on, of or affecting
the Shares or the like or any other action that would have the effect of
changing a Shareholder's ownership of the Company's capital stock or other
securities or (ii) a Shareholder becomes the beneficial owner of any additional
Shares of or other securities of the Company, then the terms of this Agreement
will apply to the shares of capital stock held by such Shareholder immediately
following the effectiveness of the events described in clause (i) or such
Shareholder becoming the beneficial owner thereof, as described in clause (ii),
as though they were Shares hereunder.
(b) Each Shareholder hereby agrees, while this Agreement is
in effect, to promptly notify Parent and Merger Sub of the number of any new
Shares acquired by such Shareholder, if any, after the date hereof.
Section 6. Tender of Shares. Each Shareholder hereby agrees that
such Shareholder will validly tender (or cause the record owner of such shares
to validly tender) and sell (and not withdraw) pursuant to and in accordance
with the terms of the Offer not later than the fifth business day after
commencement of the Offer (or the earlier of the expiration date of the Offer
and the fifth business day after such Shares are acquired by such Shareholder
if the Shareholder acquires Shares after the date hereof), or, if the
Shareholder has not received the Offer Documents by such time, within two
business days following receipt of such documents, all of the then outstanding
shares of Common Stock beneficially owned by such Shareholder (including the
shares of Common Stock outstanding as of the date hereof and set forth on
Schedule A hereto opposite such Shareholder's name). Upon the purchase by
Parent of all of such then outstanding shares of Common Stock beneficially
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owned by such Shareholder pursuant to the Offer in accordance with this Section
6, this Agreement will terminate as it relates to such Shareholder. In the
event, notwithstanding the provisions of the first sentence of this Section 6,
any Shares beneficially owned by a Shareholder are for any reason withdrawn
from the Offer or are not purchased pursuant to the Offer, such Shares will
remain subject to the terms of this Agreement. Each Shareholder acknowledges
that Parent's obligation to accept for payment and pay for the shares of Common
Stock tendered in the Offer is subject to all the terms and conditions of the
Offer.
Section 7. Voting Agreement. Each Shareholder, by this Agreement,
does hereby (a) agree to appear (or not appear, if requested by Parent or
Merger Sub) at any annual, special, postponed or adjourned meeting of the
stockholders of the Company or otherwise cause the Shares such Shareholder
beneficially owns to be counted as present (or absent, if requested by Parent
or Merger Sub) thereat for purposes of establishing a quorum and to vote or
consent, and (b) constitute and appoint Parent and Merger Sub, or any nominee
thereof, with full power of substitution, during and for the term of this
Agreement, as his true and lawful attorney and proxy for and in his name, place
and xxxxx, to vote all the Shares such Shareholder beneficially owns at the
time of such vote, at any annual, special, postponed or adjourned meeting of
the stockholders of the Company (and this appointment will include the right to
sign his or its name (as stockholder) to any consent, certificate or other
document relating to the Company that laws of the States of Delaware and
Florida may require or permit), in the case of both (a) and (b) above, (x) in
favor of approval and adoption of the Merger Agreement and approval and
adoption of the Merger and the other transactions contemplated thereby and (y)
against (1) any Acquisition Proposal, (2) any action or agreement that would
result in a breach in any respect of any covenant, agreement, representation or
warranty of the Company under the Merger Agreement and (3) the following
actions (other than the Merger and the other transactions contemplated by the
Merger Agreement): (i) any extraordinary corporate transaction, such as a
merger, consolidation or other business combination involving the Company or
any of its subsidiaries; (ii) a sale, lease or transfer of a material amount of
assets of the Company or any of its subsidiaries, or a reorganization,
recapitalization, dissolution or liquidation of the Company or any of its
Subsidiaries; (iii) (A) any change in a majority of the persons who constitute
the board of directors of the Company or any of its Subsidiaries as of the date
hereof; (B) any change in the present capitalization of the Company or any
amendment of the Company's or any of its Subsidiaries' certificate of
incorporation or bylaws, as amended to date; (C) any other material change in
the Company's or any of its Subsidiaries' corporate structure or business; or
(D) any other action that
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is intended, or could be expected, to impede, interfere with, delay, postpone,
or adversely affect the Offer, the Merger and the other transactions
contemplated by this Agreement and the Merger Agreement. This proxy and power
of attorney is a proxy and power coupled with an interest, and each Shareholder
declares that it is irrevocable until this Agreement shall terminate in
accordance with its terms. Each Shareholder hereby revokes all and any other
proxies with respect to the Shares that such Shareholder may have heretofore
made or granted. For Shares as to which a Shareholder is the beneficial but not
the record owner, such Shareholder shall use his or its best efforts to cause
any record owner of such Shares to grant to Parent a proxy to the same effect
as that contained herein. Each Shareholder hereby agrees to permit Parent and
Merger Sub to publish and disclose in the Offer Documents and the Proxy
Statement and related filings under the securities laws such Shareholder's
identity and ownership of Shares and the nature of his or its commitments,
arrangements and understandings under this Agreement.
Section 8. No Solicitation. Subject to Section 8.2 of the Merger
Agreement, each Shareholder agrees that neither such Shareholder nor any of
such Shareholder's officers, directors, employees, trustees, representatives,
agents or affiliates (including, without limitation, any investment banker,
attorney or accountant retained by any of them) will directly or indirectly
initiate, solicit or encourage (including by way of furnishing non-public
information or assistance), or take any other action to facilitate, any
inquiries or the making or submission of any Acquisition Proposal, or enter
into or maintain or continue discussions or negotiate with any person or entity
in furtherance of such inquiries or to obtain or induce any person to make or
submit an Acquisition Proposal or agree to or endorse any Acquisition Proposal
or assist or participate in, facilitate or encourage, any effort or attempt by
any other person or entity to do or seek any of the foregoing or authorize or
permit any of its officers, directors, employees, trustees or any of its
affiliates or any investment banker, financial advisor, attorney, accountant or
other representative or agent retained by any of them to take any such action.
Each Shareholder shall immediately advise Parent in writing of the receipt of
request for information or any inquiries or proposals relating to an
Acquisition Proposal.
Section 9. Termination. This Agreement will terminate (a) as to any
Shareholder upon the purchase of all the Shares beneficially owned by such
Shareholder pursuant to the Offer in accordance with Section 6, or (b) on the
earlier to occur of (i) the Effective Time or (ii) the date the Merger
Agreement is terminated in accordance with its terms.
Section 10. Fees and Expenses. Except as otherwise expressly provided
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herein or in the Merger Agreement, whether of not the Merger is consummated,
all costs and expenses incurred in connection with this Agreement and the
transactions contemplated hereby shall be paid by the party incurring such
costs and expenses.
Section 11. Further Assurances. Each party hereto will execute and
deliver all such further documents and instruments and take all such further
action as may be reasonably necessary in order to consummate the transactions
contemplated hereby.
Section 12. Publicity. A Shareholder shall not issue any press
release or otherwise make any public statements with respect to this Agreement
or the Merger Agreement or the other transactions contemplated hereby or
thereby without the consent of Parent and Merger Sub, except as may be required
by Law or applicable stock exchange rules.
Section 13. Shareholder Capacity. No person executing this Agreement
makes any agreement or understanding herein in such Shareholder's capacity as a
director or officer of the Company or any subsidiary of the Company. Each
Shareholder signs solely in such Shareholder's capacity as the beneficial owner
of such Shareholder's Shares and nothing herein shall limit or affect any
actions taken by a Shareholder in such Shareholder's capacity as an officer or
director of the Company or any subsidiary of the Company to the extent
specifically permitted by the Merger Agreement.
Section 14. Enforcement. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with its specific terms or was otherwise
breached. It is accordingly agreed that the parties shall be entitled to an
injunction or injunctions to prevent breaches of this Agreement and to enforce
specifically the terms and provisions hereof in any Florida Court, this being
in addition to any other remedy to which they are entitled at law or in equity.
Section 15. Miscellaneous.
(a) All representations and warranties contained herein will
survive for twelve months after the termination hereof. The covenants and
agreements made herein will survive in accordance with their respective terms.
(b) Any provision of this Agreement may be waived at any time
by the party that is entitled to the benefits thereof. No such waiver,
amendment or
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supplement will be effective unless in writing and signed by the party or
parties sought to be bound thereby. Any waiver by any party of a breach of any
provision of this Agreement will not operate as or be construed to be a waiver
of any other breach of such provision or of any breach of any other provision
of this Agreement. The failure of a party to insist upon strict adherence to
any term of this Agreement or one or more sections hereof will not be
considered a waiver or deprive that party of the right thereafter to insist
upon strict adherence to that term or any other term of this Agreement.
(c) This Agreement constitutes the entire agreement among the
parties hereto with respect to the subject matter hereof, and supersedes all
prior agreements among the parties with respect to such matters. This Agreement
may not be amended, changed, supplemented, waived or otherwise modified, except
upon the delivery of a written agreement executed by the parties hereto.
(d) This Agreement shall be governed by and construed in
accordance with the laws of the State of Florida without regard to its rules of
conflict of laws. Each of the Company, Parent and Merger Sub hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
Florida Courts for any litigation arising out of or relating to this Agreement
and the transactions contemplated hereby (and agrees not to commence any
litigation relating thereto except in such courts), waives any objection to the
laying of venue of any such litigation in the Florida Courts and agrees not to
plead or claim in any Florida Court that such litigation brought therein has
been brought in an inconvenient forum.
(e) The descriptive headings contained herein are for
convenience and reference only and will not affect in any way the meaning or
interpretation of this Agreement. In this Agreement, unless the context
otherwise requires, words describing the singular number shall include the
plural and vice versa, and words denoting any gender shall include all genders
and words denoting natural persons shall include corporations and partnerships
and vice versa. Whenever the words "include," "includes" or "including" are
used in this Agreement, they shall be understood to be followed by the words
"without limitation."
(f) All notices and other communications hereunder will be in
writing and will be given (and will be deemed to have been duly given upon
receipt) by delivery in person, by telecopy, or by registered or certified
mail, postage prepaid, return receipt requested, addressed as follows:
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If to Parent or Merger Sub to:
x/x Xxxxxxxx-Xxxxxx Xxxxxxx XX
Xxxxxxxxxxxxxxxx 000
XX-0000 Xxxxxx
Xxxxxxxxxxx
Attention:
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Fax: (____) ___-______
with copies to:
Fried, Frank, Harris, Xxxxxxx & Xxxxxxxx
Xxx Xxx Xxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx X. Xxxxxxxx, P.C.
Telecopy: (000) 000-0000
If to a Shareholder, at the address set forth on Schedule A hereto or
to such other address as any party may have furnished to the other parties in
writing in accordance herewith.
(g) This Agreement may be executed by the parties hereto in
separate counterparts, each of which, when so executed and delivered, shall be
an original. All such counterparts shall together constitute one and the same
instrument. Each counterpart may consist of a number of copies hereof, each
signed by less than all, but together signed by all, of the parties hereto.
(h) This Agreement is binding upon and is solely for the
benefit of the parties hereto and their respective successors, legal
representatives and assigns. Neither this Agreement nor any of the rights,
interests or obligations under this Agreement will be assigned by any of the
parties hereto without the prior written consent of the other parties, except
that Parent and Merger Sub will have the right to assign to any direct or
indirect wholly owned subsidiary of Parent or Merger Sub any and all rights and
obligations of Parent or Parent under this Agreement, provided that any such
assignment will not relieve either Parent or Merger Sub from any of its
obligations hereunder.
(i) Any term or provision of this Agreement that is invalid
or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting
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the validity or enforceability of any of the terms or provisions of this
Agreement in any other jurisdiction. If any provision of this Agreement is so
broad as to be unenforceable, the provision shall be interpreted to be only so
broad as is enforceable.
(j) All rights, powers and remedies provided under this
Agreement or otherwise available in respect hereof at law or in equity will be
cumulative and not alternative, and the exercise of any thereof by either party
will not preclude the simultaneous or later exercise of any other such right,
power or remedy by such party.
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IN WITNESS WHEREOF, each of the Parent and Merger Sub has
caused this Agreement to be signed by its officer or director thereunto duly
authorized and each Shareholder has signed this Agreement, all as of the date
first written above.
OERLIKON-XXXXXX USA, INC.
By: /s/ Beat Xxxxxxxxxxx
------------------------------------------------
Name: Beat Xxxxxxxxxxx
Title: Chairman and President
VOLCANO ACQUISITION CORP.
By: /s/ Xxxxx Xxxxxxx
------------------------------------------------
Name: Xxxxx Xxxxxxx
Title: Chief Operating Officer Balzers & Leybold
Chairman and President Volcano Acquisition Corp.
STOCKHOLDERS:
XXXXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------------------
XXXXXX X. XXXXXXXXX REVOCABLE TRUST
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: Trustee
R & C XXXXXXXXX FAMILY LIMITED PARTNERSHIP
By: R&C Management Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
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R & S XXXXXXXXX FAMILY LIMITED PARTNERSHIP
By: R&S Management Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
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Name: Xxxxxx X. Xxxxxxxxx
Title: President
R & X XXXXXXXXX FAMILY LIMITED PARTNERSHIP
By: R&D Management Inc., its general partner
By: /s/ Xxxxxx X. Xxxxxxxxx
--------------------------------------------
Name: Xxxxxx X. Xxxxxxxxx
Title: President
XXXXXX X. XXXXXXXXX
/s/ Xxxxxx X. Xxxxxxxxx
----------------------------------------------------
XXXXXX X XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
----------------------------------------------------
XXXXX X. XXXXXX
/s/ Xxxxx X. Xxxxxx
----------------------------------------------------
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SCHEDULE A
Number Number
Shareholder Address of Shares of Options
----------- ------- --------- ----------
Xxxxxx X. Xxxxxxxxx c/o Plasma-Therm, Inc. 438,300 0
10050 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxxxx c/o Plasma-Therm, Inc. 500,000 0
Revocable Trust 00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
R & C Xxxxxxxxx Family c/o Plasma-Therm, Inc. 390,000 0
Limited Partnership 00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
R & S Xxxxxxxxx Family c/o Plasma-Therm, Inc. 390,000 0
Limited Partnership 00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
R & X Xxxxxxxxx Family c/o Plasma-Therm, Inc. 320,000 0
Limited Partnership 00000 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Xxxxxx X. Xxxxxxxxx c/o Plasma-Therm, Inc. 21,892 560,000
10050 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Xxxxxx X Xxxxxxxx c/o Plasma-Therm, Inc. 16,000 265,000
10050 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000
Xxxxx X. Xxxxxx c/o Plasma-Therm, Inc. 38,000 180,000
10050 00xx Xxxxxx Xxxxx
Xx. Xxxxxxxxxx, Xxxxxxx 00000
Fax: (000) 000-0000