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EXHIBIT 2
STOCKHOLDER VOTING AGREEMENT
THIS STOCKHOLDER VOTING AGREEMENT (this "Agreement") is made this 31st
day of August, 2001, by and among KLA-Tencor Corporation, a Delaware corporation
("KLA-Tencor"), QC Optics, Inc., a Delaware corporation ("Company"), and the
stockholders of the Company listed on SCHEDULE A to this Agreement
(collectively, the "Stockholders" and each, individually, a "Stockholder").
WHEREAS, as of the date hereof, the Stockholders collectively own of
record shares of capital stock of the Company as set forth on SCHEDULE A
attached hereto (such shares, together with any other voting or equity of
securities of the Company hereafter acquired by any Stockholder prior to the
termination of this Agreement, being referred to herein collectively as the
"Shares");
WHEREAS, pursuant to a certain Agreement and Plan of Merger dated as of
the date of this Agreement (the "Merger Agreement"), by and among KLA-Tencor,
Katmandu Acquisition Corp., a Delaware corporation and wholly-owned subsidiary
of KLA-Tencor ("Merger Sub"), and the Company, KLA-Tencor has agreed to acquire
the Company through a merger transaction (the "Merger") involving the merger of
Merger Sub into the Company;
WHEREAS, as a condition to the willingness of KLA-Tencor to enter into
the Merger Agreement, KLA-Tencor has required that the Stockholders agree, and
in order to induce KLA-Tencor to enter into the Merger Agreement, the
Stockholders are willing to agree, during the term of this Agreement, to vote in
favor of the adoption of the Merger Agreement, the Merger and the transactions
contemplated thereby and to restrict the transfer or disposition of any of the
Shares;
WHEREAS, capitalized terms used in this Agreement without definition
shall have such meanings as ascribed to them under the Merger Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and for other good and valuable
consideration, the receipt of which is acknowledged by each party hereto, and
intending to be legally bound hereby, the parties hereby agree, severally and
not jointly, as follows:
Section 1. VOTING OF SHARES.
(a) Each Stockholder covenants and agrees that during the
period beginning on the date hereof and ending on the earlier to occur of (i)
the Effective Time and (ii) the termination of the Merger Agreement in
accordance with its terms (such period the "Expiration Date") (A) by the parties
pursuant to Section 6.3(a) of the Merger Agreement, (B) by KLA-Tencor pursuant
to any provision of the Merger Agreement, or (C) by the Company pursuant to
Section 6.3(c), (d), or (g) of the Merger Agreement, at any regular, special or
adjourned meeting
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of the stockholders of the Company, however called (a "Stockholders' Meeting"),
and in any action by written consent of the stockholders of the Company (a
"Written Consent"), such Stockholder will vote, or cause to be voted, all of its
respective Shares (i) in favor of the adoption of the Merger Agreement (as the
Merger Agreement may be modified or amended from time to time in a manner not
adverse to the Stockholders) and the approval of the Merger as contemplated by
the Merger Agreement, and (ii) against any Acquisition Proposal and against any
other action or transaction that may reasonably be construed to make the
consummation of the Merger by KLA-Tencor more difficult or expensive. Prior to
the Expiration Date, no Stockholder shall enter into any agreement or
understanding with any person or vote or give instructions in any manner
inconsistent with this Section 1.
(b) Each Stockholder hereby grants to, and appoints,
KLA-Tencor, and any individual designated in writing by KLA-Tencor, and each of
them individually, as its proxy and attorney-in-fact (with full power of
substitution), for and in its name, place and stead, to vote its Shares at any
Stockholders' Meeting and in any Written Consent with respect to any of the
matters specified in, and in accordance and consistent with, this Section 1.
Each Stockholder understands and acknowledges that KLA-Tencor is entering into
the Merger Agreement in reliance upon the Stockholder's execution and delivery
of this Agreement. Each Stockholder hereby affirms that the irrevocable proxy
set forth in this Section 1(b) is given in connection with the execution of the
Merger Agreement, and that such irrevocable proxy is given to secure the
performance of the duties of such Stockholder under this Agreement. Except as
otherwise provided for herein, each Stockholder hereby (i) affirms that the
proxy is coupled with an interest and may under no circumstances be revoked,
(ii) ratifies and confirms all that the proxies appointed hereunder may lawfully
do or cause to be done by virtue hereof and (iii) affirms that such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212 of the Delaware General Corporation Law.
Notwithstanding any other provisions of this Agreement, the proxy granted
hereunder shall automatically terminate upon the termination of this Agreement.
Section 2. TRANSFER OF SHARES.
(a) Each Stockholder covenants and agrees that during the
period beginning on the date hereof and ending on the Expiration Date that such
Stockholder will not directly or indirectly (i) sell, assign, transfer
(including by merger, interspousal disposition pursuant to a domestic relations
proceeding or otherwise by operation of law), pledge, encumber or otherwise
dispose of any of its Shares, (ii) deposit any of its Shares into a voting trust
or enter into a voting agreement or arrangement with respect to the Shares or
grant any proxy or power of attorney with respect thereto which is inconsistent
with this Agreement or (iii) enter into any contract, option or other voluntary
arrangement or undertaking with respect to the direct or indirect sale,
assignment, transfer (including by merger, interspousal disposition pursuant to
a domestic relations proceeding or otherwise by operation of law) or other
disposition of any Shares. In the event any party to this Agreement dies prior
to the Expiration Date, then this Agreement shall be binding on the descendants,
executors, administrators, heirs and assigns of such party. Any action or
attempted action in violation of this Agreement shall be null and void.
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(b) Promptly upon the execution of this Agreement, the Company
agrees to notify the transfer agent of its Common Stock, $.01 par value per
share ("Common Stock") of the existence of this Agreement and to impose
appropriate restrictions on such transfer agent against facilitating any
attempted transfer of any of the Shares. Promptly upon the termination of this
Agreement, the Company may notify the transfer agent of the termination of this
Agreement and instruct the transfer agent to remove all restrictions on such
transfer agent against facilitating any attempted transfer of any of the Shares,
and, if requested by the Company, KLA-Tencor agrees to promptly concur with such
notification and instructions.
Section 3. REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS. Each
Stockholder on its own behalf hereby severally represents and warrants to
KLA-Tencor, solely with respect to itself and its ownership of its Shares, but
not with respect to any other Stockholder, as follows:
(a) OWNERSHIP OF SHARES. On the date hereof, and except as
specifically set forth on SCHEDULE A attached hereto, such Shares are owned
beneficially by such Stockholder or its nominee. Such Stockholder has sole
voting power, without restrictions, with respect to all of such Shares.
Stockholder does not beneficially own any shares of capital stock of the Company
other than the Shares.
(b) POWER; BINDING AGREEMENT. Such Stockholder has the legal
capacity, power and authority to enter into and perform all of its obligations
under this Agreement. The execution, delivery and performance of this Agreement
by such Stockholder will not violate any material agreement to which such
Stockholder is a party, including, without limitation, any voting agreement,
stockholders' agreement, partnership agreement or voting trust. This Agreement
has been duly and validly executed and delivered by such Stockholder and
constitutes a valid and binding obligation of such Stockholder, enforceable
against such Stockholder in accordance with its terms.
(c) NO CONFLICTS. The execution and delivery of this Agreement
do not, and the consummation of the transactions contemplated hereby will not,
conflict with or result in any violation of, or default (with or without notice
or lapse of time, or both) under, or give rise to a right of termination,
cancellation or acceleration of any obligation or to loss of a material benefit
under, any provision of any loan or credit agreement, note, bond, mortgage,
indenture, lease, or other agreement, instrument, permit, concession, franchise,
license, judgment, order, decree, statute, law, ordinance, rule or regulation
applicable to such Stockholder or any of its properties or assets.
(d) NO ENCUMBRANCES. As of the date hereof the Shares are, and
at all times up until the Expiration Date the Shares will be, free and clear of
any rights of first refusal, co-sale rights, security interests, liens, pledges,
claims, options, charges or other encumbrances.
Section 4. NO SOLICITATION. Prior to the termination of this Agreement
in accordance with its terms, each Stockholder agrees, in its individual
capacity as a stockholder of the Company, that it will not, nor will it
authorize or permit any of its employees, agents and representatives to,
directly or indirectly, (a) initiate, solicit or encourage any inquiries or the
making of any Acquisition Proposal, (b) enter into any agreement with respect to
any Acquisition Proposal, or (c) participate in any discussions or negotiations
regarding, or furnish to
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any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any Acquisition Proposal. Notwithstanding the
foregoing, each Stockholder who serves as an officer or director of the Company
may take such actions as are allowed under the provisions of Section 4.6 of the
Merger Agreement.
Section 5. TERMINATION. This Agreement shall terminate upon the
earliest to occur of (i) the Effective Time, (ii) the written agreement of the
parties hereto to terminate this Agreement, or (iii) any termination of the
Merger Agreement in accordance with the terms thereof; provided, however, that
termination of the Merger Agreement in accordance with its terms shall not
relieve any party of liability for a breach hereof prior to termination.
Section 6. SPECIFIC PERFORMANCE. Each party expressly understands and
agrees that any breach of this Agreement would cause irreparable harm to the
other parties and that, in addition to any other remedy which such party might
have, an aggrieved party shall be entitled to injunctive relief for, and to
prevent, any such breach, without the necessity of posting any bond or other
security. The breaching party hereby agrees that should any aggrieved party
institute any action or proceeding for injunctive or similar equitable relief to
enforce these covenants, the breaching party waives and agrees not to assert the
claims or defenses that the aggrieved party has an adequate remedy at law or
that the aggrieved party will not suffer irreparable damage.
Section 7. FIDUCIARY DUTIES. Each Stockholder is signing this Agreement
solely in such Stockholder's capacity as an owner of its respective Shares or as
trustee of a voting trust, and nothing herein shall prohibit, prevent or
preclude such Stockholder from taking or not taking any action in his capacity
as an officer or director of the Company.
Section 8. MISCELLANEOUS.
(a) All notices, requests, demands, consents and other
communications which are required or permitted hereunder shall be in writing,
and shall be deemed given when actually received or if earlier, (i) immediately
upon sending by telecopy if the telecopier produces a legible record of such
notice, (ii) one business day after deposit with a nationally recognized
overnight courier, charges prepaid, or (iii) five days after deposit in the U.S.
mail by certified mail, return receipt requested, postage prepaid, addressed as
follows:
If to KLA-Tencor: KLA-Tencor Corporation
000 Xxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Vice President, Mergers & Acquisitions
Telecopy Number: 000-000-0000
with copies to:
KLA-Tencor Corporation
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000 Xxx Xxxxxx
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Vice President and General Counsel
Telecopy Number: 000-000-0000
and
Xxxxx, Xxxxxx-Xxxxx & Xxxxxxxxx, P.C.
Reservoir Place
0000 Xxxxxxx Xxxx
Xxxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telecopy Number: 000-000-0000
If to the Stockholders:
At the addresses set forth on SCHEDULE A attached hereto,
with copies to:
QC Optics, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Attention: President
Telecopy Number: 000-000-0000
and
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
Xxx Xxxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000
Attention: Xxxx X. Xxxxxxx, Esq.
Telecopy Number: 617-542-2241
or to such other address as any party hereto may designate in writing to the
other parties, specifying a change of address for the purpose of this Agreement.
(b) This Agreement and the agreements specifically referred to
herein, or in the Merger Agreement, supersede any and all oral or written
agreements or understandings heretofore made relating to the subject matter
hereof and constitute the entire agreement of the parties relating to the
subject matter hereof, except for the Non-Disclosure Agreement. This Agreement
may not be amended, modified or rescinded except by an instrument in writing
signed by each of the parties hereto.
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(c) If any provision of this Agreement shall be declared void
or unenforceable by any judicial or administrative authority, the validity of
any other provision shall not be affected thereby. The parties hereto further
agree to replace such void or enforceable provision of this Agreement with a
valid and enforceable provision that will achieve, to the extent possible, the
mutual economic, business and other purposes of such void or unenforceable
provision.
(d) This Agreement shall be binding upon and inure to the
benefit of the parties, their respective successors and permitted assigns.
(e) In this Agreement, unless the context requires otherwise
the singular includes the plural, the plural the singular, the masculine gender
includes the neuter, masculine and feminine genders and vice versa.
(f) This Agreement shall be governed by the law of the
Commonwealth of Massachusetts applicable to agreements made and to be performed
wholly within such jurisdiction, without regard to the conflicts of law
provisions thereof.
(g) Except as set forth in Section 8(h), any controversy,
dispute or claim arising out of or in connection with this Agreement, or the
breach, termination or validity hereof, shall be settled by final and binding
arbitration to be conducted by an arbitration tribunal in City of Boston,
Massachusetts, pursuant to the rules of the American Arbitration Association.
The arbitration tribunal shall consist of three arbitrators. The party
initiating arbitration shall nominate one arbitrator in the request for
arbitration and the other party shall nominate a second in the answer thereto
within 30 days of receipt of the request. The two arbitrators so named will then
jointly appoint the third arbitrator. If the answering party fails to nominate
its arbitrator within the thirty 30-day period, or if the arbitrators named by
the parties fail to agree on the third arbitrator within 60 days, the office of
the American Arbitration Association in City of Boston, Massachusetts shall make
the necessary appointments of such arbitrator(s). The decision or award of the
arbitration tribunal (by a majority determination, or if there is no majority,
then by the determination of the third arbitrator, if any), including any award
of fees and/or expenses, shall be final, and judgment upon such decision or
award may be entered in any competent court or application may be made to any
competent court for judicial acceptance of such decision or award and an order
of enforcement. In the event of any procedural matter not covered by the
aforesaid rules, the procedural law of the Commonwealth of Massachusetts shall
govern.
(h) Notwithstanding the provisions of, and in addition to the
rights set forth in, Section 8(g), in the event of a breach of the provisions of
this Agreement by a party to this Agreement prior to the Closing, any
non-breaching party shall have the right to specific performance and injunctive
relief, it being acknowledged and agreed that money damages will not provide an
adequate remedy.
(i) In the event litigation is maintained by a party to this
Agreement against any other party to enforce an arbitration award rendered under
Section 8(g) or to seek specific performance of injunctive relief under Section
8(h), then the party prevailing in such litigation shall be entitled to recover
from the non-prevailing party reasonable attorneys' fees and costs of suit.
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(j) No remedy conferred by any of the specific provisions of
this Agreement is intended to be exclusive of any other remedy, and each and
every remedy will be cumulative and will be in addition to every other remedy
given here or now or hereafter existing at law or in equity or by statute or
otherwise. The election of any one or more remedies will not constitute a waiver
of the right to pursue other available remedies.
(j) This Agreement may be executed in several counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
(k) No Stockholder shall have any liability for any
misrepresentation or breach by any other Stockholder hereunder.
[Signature Page to follow]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be duly
executed under seal as of the date first written above.
KLA-TENCOR CORPORATION QC OPTICS, INC.
By: /s/ Xxxx Xxxxxxx By: /s/ Xxxx X. Xxxxx
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Xxxx Xxxxxxx Xxxx X. Xxxxx
Chief Financial Officer President
STOCKHOLDERS:
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, in his capacity as
Trustee of the QC Optics Voting
Trust u/d/t dated as of
October 27, 1995
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx, in his individual
capacity
/s/ Xxxx X. Xxxxxxx
--------------------------------------
Xxxx X. Xxxxxxx, in his individual
capacity
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SCHEDULE A
TO
STOCKHOLDER VOTING AGREEMENT
STOCKHOLDER SHARES HELD
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Xxxx X. Xxxxx, in his capacity as 1,032,859 shares of Common Stock*
Trustee of the QC Voting Trust
u/d/t dated as of October 27, 1995
c/o QC Optics, Inc. *Beneficially owned as follows:
00 Xxxxxxx Xxxx Xxxx X. Xxxxx - 634,517 shares;
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000 Xxx X. Xxxxxx - 162,599 shares;
Xxxx X. Xxxxxxx - 78,581 shares;
Xxxxxx X. Xxxxx - 78,581 shares;
and Xxxx Xxxxxxx -78,581 shares.
Xxxx X. Xxxxx, in his individual capacity 100 shares of Common Stock
c/o QC Optics, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
Xxxx X. Xxxxxxx, in his individual capacity 100 shares of Common Stock
c/o QC Optics, Inc.
00 Xxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxxxxxxx 00000
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