EXHIBIT 1
VOTING AGREEMENT
This Voting Agreement ("Voting Agreement") is entered into as of December
8, 2008, by and among (i) The D3 Family Fund, L.P., The D3 Family Bulldog Fund,
L.P., The D3 Family Canadian Fund, L.P., The DIII Offshore Fund, L.P.,
Xxxxxxxxxx Investment Management Company, Inc., Xxxxxxxxxx Investment Management
Offshore, Inc. and Xxxxx Xxxxxxxxxx (collectively, the "Shareholders"), and (ii)
Electro Scientific Industries, Inc. (the "Company").
Recitals
A. The Shareholders Own (as defined below) shares of common stock of the
Company.
B. The Shareholders are entering into this Voting Agreement to provide for
the manner in which they will vote certain of their Subject Securities (as
defined below).
Agreement
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
SECTION 1. Certain Definitions
For purposes of this Voting Agreement:
(a) An "Affiliate" of, or Person "Affiliated" with, a specified
Person, is a Person that directly, or indirectly through one or more
intermediaries, Controls or is Controlled by, or is under common Control with,
the Person specified; provided, however, that, notwithstanding anything to the
contrary in this Voting Agreement, a publicly-held corporation shall not, for
purposes of Section 3.3, be deemed to be an "Affiliate" of a Shareholder by
virtue of being Controlled by such Shareholder, unless (i) a majority of the
members of the board of directors of such corporation consists of one or more of
the Shareholders, individually or collectively, directly or indirectly through
one or more intermediaries or other representatives or (ii) one or more of the
Shareholders, individually or collectively, directly or indirectly through one
or more intermediaries, is the beneficial owner of a majority of any class of
voting securities of such corporation.
(b) The term "Associate," when used to indicate a relationship with
any Person, means (1) a corporation or organization (other than the Company) of
which such Person is an officer, member or partner or is, directly or
indirectly, the beneficial owner of 20% or more of any class of equity
securities, (2) any trust or other estate for the benefit of such Person or as
to which such Person serves as trustee or in a similar capacity, or (3) any
relative or spouse of such Person, or any relative of such spouse, by blood,
marriage or adoption and not more remote than a first cousin; or a trust or
other estate for the benefit of any such relative or spouse or as to which such
relative or spouse serves as trustee or in a similar capacity; or a corporation
or organization (other than the Company) of which such relative or spouse is an
officer, member or partner or is, directly or indirectly, the beneficial owner
of 20% or more of any class of equity securities; provided, however, that, for
purposes of Section 3.3, the term "Associate," when used to indicate a
relationship with any Person, means (i) a privately-held corporation or
organization of which such Person is an officer, member or
partner or is, directly or indirectly, the beneficial owner of 20% or more of
any class of equity securities, (ii) any trust or other estate for the benefit
of such Person or as to which such Person serves as trustee or in a similar
capacity, or (iii) any relative or spouse of such Person, or any relative of
such spouse, by blood, marriage or adoption and not more remote than a first
cousin; or a trust or other estate for the benefit of any such relative or
spouse or as to which such relative or spouse serves as trustee or in a similar
capacity; or a corporation or organization (other than the Company) of which (x)
a majority of the members of the board of directors (or equivalent governing
body) of such entity consists of one or more of any such relatives or spouses or
such Person, individually or collectively, directly or indirectly through one or
more intermediaries or other representatives, or (y) one or more of any such
relatives or spouses or such Person, individually or collectively, directly or
indirectly through one or more intermediaries, is a managing partner (or general
partner) or a managing member (or manager) of such entity or is the beneficial
owner of a majority of any class of voting securities of such entity.
(c) The term "Control" (including the terms "Controlling,"
"Controlled by" and "under common Control with") means the possession, direct or
indirect, of the power to direct or cause the direction of the management and
policies of a Person, whether through the ownership of voting securities, by
contract, or otherwise; provided, however, that a corporation, partnership or
limited liability company shall not be deemed to be Controlled by a Shareholder,
unless one or more of the Shareholders, individually or collectively, directly
or indirectly through one or more intermediaries, serves on such entity's board
of directors (or equivalent governing body), has at least one representative on
such entity's board of directors (or equivalent governing body), is a managing
partner (or general partner) or a managing member (or manager) of such entity or
is the beneficial owner of 20% or more of any class of equity securities of such
entity.
(d) A Person shall be deemed to "Own" or to have acquired
"Ownership" of or to be the "Owner" of a security if such Person: (i) is the
record owner of such security; or (ii) is the "beneficial owner" (within the
meaning of Rule 13d-3 under the Securities Exchange Act of 1934) of such
security.
(e) The term "Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated association, corporation,
limited liability company, entity or governmental entity (whether foreign,
federal, state, county, city or otherwise and including any instrumentality,
division, agency or department thereof).
(f) "Subject Securities" shall mean: (i) all securities issued by
the Company (including all shares of Company common stock and all options,
restricted stock units, warrants and other rights to acquire shares of Company
common stock) that are Owned by each Shareholder as of the date of this Voting
Agreement; and (ii) all additional securities issued or to be issued by the
Company (including all additional shares of Company common stock and all
additional options, restricted stock units, warrants and other rights to acquire
shares of Company
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common stock) of which such Shareholder acquires Ownership after the date of
this Voting Agreement.
(g) A Person shall be deemed to have a effected a "Transfer" of a
security if any other Person directly or indirectly acquires Ownership of such
security because such transferor directly or indirectly: (i) sells, pledges,
encumbers, grants an option with respect to, transfers or disposes of such
security or any interest in such security to any Person other than the Company;
(ii) enters into an agreement or commitment contemplating the possible sale of,
pledge of, encumbrance of, grant of an option with respect to, transfer of or
disposition of such security or any interest therein to any Person other than
the Company; or (iii) reduces such transferor's beneficial ownership of,
interest in or risk relating to such security (other than any such reduction
that occurs because such security is repurchased by the Company).
SECTION 2. Voting of Shares
2.1 Voting Covenant. If, as of the record date with respect to any meeting
of the shareholders of the Company (however called) or any written action by
consent of shareholders of the Company, the Shareholders collectively Own issued
and outstanding shares of Company common stock that, in the aggregate, exceed
15% of the total issued and outstanding shares of Company common stock as of
such record date (the number of shares collectively Owned by the Shareholders as
of such record date less the number of shares that equals 15% of the total
issued and outstanding shares of Company common stock as of such record date
being referred to herein as the "Excess Shares"), then each Shareholder hereby
agrees that, at any such meeting or in any such consent, such Shareholder shall
cause the number of Excess Shares Owned by such Shareholder to be voted in
accordance with the recommendation of the Company's Board of Directors. For
example and not by way of limitation, if after the date of this Voting Agreement
the Company's Board of Directors recommends that shareholders of the Company
vote in favor of a certain proposal to be presented at a shareholders' meeting
and against a certain other proposal to be presented at such meeting, then each
Shareholder shall cause the number of Excess Shares with respect to that meeting
Owned by such Shareholder to be voted in favor of the former proposal and
against the latter proposal. With respect to any meeting of the shareholders of
the Company (however called) or any written action by consent of shareholders of
the Company, that portion of the Excess Shares deemed to be Owned by each
Shareholder shall be determined by the Company in good faith; provided, however,
that the number of Excess Shares determined by the Company to be Owned by a
Shareholder shall not exceed the number of issued and outstanding shares of
Company common stock Owned by such Shareholder on the applicable record date. In
addition, if some or all of the issued and outstanding shares of Company common
stock Owned by a Shareholder as of the applicable record date are owned of
record by one or more Persons other than the Shareholder, then the Company shall
determine which (if any) of the shares owned of record by each such Person shall
be included in that portion of the Excess Shares deemed to be Owned by such
Shareholder. No Shareholder shall enter into any agreement or understanding with
any Person to vote or give instructions in any manner inconsistent with the
foregoing provisions of this Section 2.1. For the avoidance of doubt, the
determination by the Company of the number of Excess Shares Owned by a
Shareholder shall be made for the purposes of this Voting Agreement only and not
for any other purpose.
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2.2 Proxy; Further Assurances.
(a) Contemporaneously with the execution of this Voting Agreement
(or, with respect to Persons who become "Shareholders" under this Voting
Agreement after the date hereof, at such time as such Person becomes a
"Shareholder"), each Shareholder shall deliver to the Company a proxy in the
form attached to this Voting Agreement as Exhibit A, which proxy is coupled with
an interest and shall be irrevocable to the fullest extent permitted by law (at
all times during the term of this Voting Agreement) with respect to the shares
referred to therein (the "Proxy").
(b) Each Shareholder shall, at such Shareholder's own expense,
perform such further acts and execute such further proxies and other documents
and instruments as may reasonably be required to vest in the Company the power
to carry out and give effect to the provisions of this Voting Agreement.
(c) No Shareholder shall enter into any tender, voting or other
agreement, or grant a proxy or power of attorney, with respect to the Subject
Securities that is inconsistent with this Voting Agreement or otherwise take any
other action with respect to the Subject Securities that would in any way
restrict, limit or interfere with the performance of any Shareholder's
obligations hereunder or the transactions contemplated hereby.
SECTION 3. Transfer of Subject Securities and Voting Rights; Affiliates and
Associates
3.1 Restriction on Transfer of Subject Securities. No Shareholder shall,
directly or indirectly, knowingly cause or permit any Transfer of any of the
Subject Securities to any Affiliate or Associate of any Shareholder (other than
any Affiliate or Associate who is already a Shareholder) or to any Person (not
already a Shareholder) who, together with any Shareholder or Shareholders, acts
as a group for the purpose of acquiring, holding, voting or disposing of
securities of the Company, unless, prior to such Transfer, the transferee agrees
in a writing, reasonably satisfactory in form and substance to the Company, to
be bound by all of the terms of this Voting Agreement as a "Shareholder"
hereunder.
3.2 Restriction on Transfer of Voting Rights. Each Shareholder shall
ensure that none of the Subject Securities is deposited into a voting trust.
3.3 Affiliates and Associates. Prior to such time (if any) as any
Affiliate or Associate of a Shareholder (other than any Affiliate or Associate
who is already a Shareholder) shall acquire Ownership of any securities of the
Company, such Shareholder shall cause such Affiliate or Associate, as
applicable, to agree in a writing, reasonably satisfactory in form and substance
to the Company, to be bound by all of the terms of this Voting Agreement as a
"Shareholder" hereunder. For example and without limiting the generality of the
foregoing, if after the date of this Voting Agreement a new, privately-held
corporation is formed and 20% of a class of equity securities of such
corporation is issued to a Shareholder, then, prior to such time as such
corporation acquires Ownership of any securities of the Company, such
Shareholder shall cause such corporation to agree in a writing, reasonably
satisfactory in form and substance to the Company, to be bound by all of the
terms of this Voting Agreement as a "Shareholder" hereunder. In addition, no
Shareholder, directly or indirectly through one or more
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intermediaries, shall agree or enter into any agreement, arrangement or
understanding with any Person (not already a Shareholder), whether or not in
writing, to act as a group for the purpose of acquiring, holding, voting or
disposing of securities of the Company unless such Shareholder first causes such
Person to agree in a writing, reasonably satisfactory in form and substance to
the Company, to be bound by all of the terms of this Voting Agreement as a
"Shareholder" hereunder.
SECTION 4. Representations and Warranties
4.1 Representations and Warranties of Shareholders. The Shareholders
hereby represent and warrant to the Company as follows:
(a) Authorization, etc. Each Shareholder has the absolute and
unrestricted power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform such Shareholder's obligations hereunder
and thereunder. This Voting Agreement and the Proxy have been duly executed and
delivered by each Shareholder and constitute legal, valid and binding
obligations of each Shareholder, enforceable against such Shareholder in
accordance with their terms, subject to: (i) laws of general application
relating to bankruptcy, insolvency and the relief of debtors; and (ii) rules of
law governing specific performance, injunctive relief and other equitable
remedies. If any Shareholder is a corporation, then such Shareholder is a
corporation duly organized, validly existing and in good standing under the laws
of the jurisdiction in which it was organized. If any Shareholder is a general
or limited partnership, then such Shareholder is a partnership duly organized,
validly existing and in good standing under the laws of the jurisdiction in
which it was organized. If any Shareholder is a limited liability company, then
such Shareholder is a limited liability company duly organized, validly existing
and in good standing under the laws of the jurisdiction in which it was
organized.
(b) No Conflicts or Consents.
(i) The execution and delivery of this Voting Agreement and
the Proxy by each Shareholder do not, and the performance of this Voting
Agreement and the Proxy by such Shareholder will not: (a) conflict with or
violate any law or order applicable to such Shareholder or by which such
Shareholder or any of such Shareholder's properties is or may be bound or
affected; or (b) result in or constitute (with or without notice or lapse of
time) any breach of or default under, or give to any other Person (with or
without notice or lapse of time) any right of termination, amendment,
acceleration or cancellation of, or result (with or without notice or lapse of
time) in the creation of any lien on any of the Subject Securities pursuant to,
any contract or agreement to which such Shareholder is a party or by which such
Shareholder or any of such Shareholder's affiliates or properties is or may be
bound or affected.
(ii) The execution and delivery of this Voting Agreement and
the Proxy by each Shareholder do not, and the performance of this Voting
Agreement and the Proxy by such Shareholder will not, require any consent or
approval of any Person.
(c) No Other Agreements. No Shareholder, directly or indirectly
through one or more intermediaries, has any agreement, arrangement or
understanding, whether or not in
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writing, with any Person that is not a party to this Voting Agreement to act as
a group for the purpose of acquiring, holding, voting or disposing of securities
of the Company.
4.2 Representations and Warranties of the Company. The execution and
delivery of this Voting Agreement by the Company, and the performance of this
Voting Agreement by the Company, has been approved by the Company's board of
directors. The execution and delivery of this Voting Agreement by the Company
does not, and the performance of this Voting Agreement by the Company will not,
result in the breach of or constitute a default under any other agreement to
which the Company is a party or by which the Company is bound.
SECTION 5. Miscellaneous
5.1 Term. This Voting Agreement shall terminate when the Shareholders
(including the Shareholders' respective Affiliates and Associates and other
Persons required to be made parties to this Voting Agreement pursuant to the
terms of Section 3.1 or Section 3.3), collectively, cease to Own at least 15% of
the then-total issued and outstanding shares of Company common stock; provided,
however, that this Voting Agreement shall in no event terminate sooner than the
third anniversary of the date of this Voting Agreement.
5.2 Further Assurances. From time to time and without additional
consideration, each Shareholder shall execute and deliver, or cause to be
executed and delivered, such additional transfers, assignments, endorsements,
proxies, consents and other instruments, and shall take such further actions
(including the provision to the Company of such information as the Company may
reasonably request regarding the record and beneficial ownership of the shares
of Company common stock Owned by the Shareholder and all other information that
the Company may reasonably request solely to facilitate the determinations to be
made by the Company under Section 2.1), as the Company may reasonably request
for the purpose of carrying out and furthering the intent of this Voting
Agreement.
5.3 Expenses. Subject to Section 5.9, all costs and expenses incurred in
connection with the transactions contemplated by this Voting Agreement shall be
paid by the party incurring such costs and expenses.
5.4 Notices. Any notice or other communication under this Voting Agreement
shall be in writing and shall be deemed to have been duly given or made as
follows: (a) if sent by registered or certified mail in the United States return
receipt requested, upon receipt; (b) if sent by nationally recognized overnight
air courier (such as DHL or Federal Express), two business days after mailing;
(c) if sent by facsimile transmission before 5:00 p.m., when transmitted and
receipt is confirmed; (d) if sent by facsimile transmission after 5:00 p.m. and
receipt is confirmed, on the following business day; and (e) if otherwise
actually personally delivered, when delivered, provided that such notices,
requests, demands and other communications are delivered to the address set
forth below, or to such other address as any party shall provide by like notice
to the other parties to this Voting Agreement:
if to a Shareholder:
at the address set forth on the signature page hereof; and
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with a copy (which shall not constitute notice) to:
DLA Piper US LLP
0000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx Xxxx, XX 00000
Attn: Xxxxx Xxxxxx
Facsimile: (000) 000-0000
if to the Company:
Electro Scientific Industries, Inc.
00000 XX Xxxxxxx Xxxx Xxxxx
Xxxxxxxx, XX 00000
Attn: Xxxx X. Xxxxxx
Facsimile: (000) 000-0000
with a copy (which shall not constitute notice) to:
Stoel Rives LLP
000 XX Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxxx and Xxxxxx X. Xxxx
Facsimile: (000) 000-0000
5.5 Severability. Any term or provision of this Voting Agreement that is
invalid or unenforceable in any situation in any jurisdiction shall not affect
the validity or enforceability of the remaining terms and provisions hereof or
the validity or enforceability of the offending term or provision in any other
situation or in any other jurisdiction. If the final judgment of a court of
competent jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the parties hereto agree that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Voting Agreement shall be enforceable as so modified. In the event such
court does not exercise the power granted to it in the prior sentence, the
parties hereto agree to replace such invalid or unenforceable term or provision
with a valid and enforceable term or provision that will achieve, to the extent
possible, the economic, business and other purposes of such invalid or
unenforceable term.
5.6 Entire Agreement. This Voting Agreement and the Proxies and any other
documents delivered by the parties in connection herewith constitute the entire
agreement among the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto.
5.7 Amendments. This Voting Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf
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of the Company and Shareholders holding a majority of the issued and outstanding
shares of Company common stock then held by all Shareholders.
5.8 Assignment; Binding Effect; No Third Party Rights. This Voting
Agreement shall be binding upon and inure to the benefit of each Shareholder and
such Shareholder's heirs, estate, executors and personal representatives and
such Shareholder's successors and permitted assigns, and this Voting Agreement
shall be binding upon and inure to the benefit of the Company and its successors
and assigns; provided, however, that neither this Voting Agreement nor any of
the interests or obligations hereunder may be assigned or delegated by any
Shareholder without the prior written consent of the Company (and any attempted
or purported assignment or delegation of any of such interests or obligations
without the prior written consent of the Company shall be void) and provided
further that, for the avoidance of doubt, nothing in the foregoing proviso shall
affect the provisions of Section 3.1 (it being understood that, following any
Transfer that meets the terms and conditions of Section 3.1, the transferring
Shareholder shall continue to have the rights and obligations as a "Shareholder"
under this Voting Agreement with respect to the remaining Subject Securities
Owned by such Shareholder and with respect to any and all Subject Securities as
to which such Shareholder subsequently acquires Ownership). This Voting
Agreement shall be binding upon any Person to whom any Subject Securities are
transferred only to the extent set forth in Section 3.1. Nothing in this Voting
Agreement is intended to confer on any Person (other than each Shareholder and
such Shareholder's heirs, estate, executors, personal representatives,
successors and permitted assigns and the Company and its successors and assigns)
any rights or remedies of any nature.
5.9 Specific Performance; Injunctive Relief; Attorneys' Fees. The parties
agree that irreparable damage would occur in the event that any of the
provisions of this Voting Agreement or the Proxies were not performed in
accordance with their specific terms or were otherwise breached. Each
Shareholder agrees that, in the event of any breach or threatened breach by any
Shareholder of any covenant or obligation contained in this Voting Agreement or
in any Proxy, the Company shall be entitled (in addition to any other remedy
that may be available to it, including monetary damages) to seek and obtain: (a)
a decree or order of specific performance to enforce the observance and
performance of such covenant or obligation; and (b) an injunction restraining
such breach or threatened breach. Each Shareholder further agrees that neither
the Company nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 5.9, and each Shareholder irrevocably
waives any right he or it may have to require the obtaining, furnishing or
posting of any such bond or similar instrument. If any action, suit, or other
proceeding (whether at law, in equity or otherwise) is instituted concerning or
arising out of this Voting Agreement or any transaction contemplated hereunder,
the prevailing party shall recover, in addition to any other remedy granted to
such party therein, all of such party's costs and attorneys' fees incurred in
connection with the prosecution or defense of such action, suit or other
proceeding.
5.10 Non-Exclusivity. The rights and remedies of the Company under this
Voting Agreement are not exclusive of or limited by any other rights or remedies
which it may have, whether at law, in equity, by contract or otherwise, all of
which shall be cumulative (and not alternative).
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5.11 Governing Law; Jurisdiction; Waiver of Jury Trial. This Voting
Agreement shall be governed by, and construed in accordance with, the laws of
the State of Oregon, regardless of the laws that might otherwise govern under
applicable principles of conflicts of laws thereof. In any action between any of
the parties arising out of or relating to this Voting Agreement or any of the
transactions contemplated by this Voting Agreement, each of the parties: (a)
irrevocably and unconditionally consents and submits to the exclusive
jurisdiction and venue of the federal or state courts of the State of Oregon;
(b) irrevocably waives the right to trial by jury; and (c) irrevocably consents
to service of process by first class certified mail, return receipt requested,
postage prepared, to the address at which such Shareholder or the Company, as
the case may be, is to receive notice in accordance with Section 5.4.
5.12 Counterparts. This Voting Agreement may be executed in separate
counterparts, each of which when so executed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
5.13 Captions. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
5.14 Waiver. No failure on the part of the Company to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of the Company in exercising any power, right, privilege or remedy under this
Voting Agreement, shall operate as a waiver of such power, right, privilege or
remedy; and no single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any other
power, right, privilege or remedy. The Company shall not be deemed to have
waived any claim available to the Company arising out of this Voting Agreement,
or any power, right, privilege or remedy of the Company under this Voting
Agreement, unless the waiver of such claim, power, right, privilege or remedy is
expressly set forth in a written instrument duly executed and delivered on
behalf of the Company; and any such waiver shall not be applicable or have any
effect except in the specific instance in which it is given.
5.15 Independence of Obligations. The covenants and obligations of each
Shareholder set forth in this Voting Agreement shall be construed as independent
of any other contract between such Shareholder, on the one hand, and the
Company, on the other. The existence of any claim or cause of action by such
Shareholder against the Company shall not constitute a defense to the
enforcement of any of such covenants or obligations against such Shareholder.
Nothing in this Voting Agreement shall limit any of the rights or remedies of
the Company or any of the obligations of any Shareholder under any agreement
between such Shareholder and the Company or any certificate or instrument
executed by such Shareholder in favor of the Company; and nothing in any such
agreement, certificate or instrument, shall limit any of the rights or remedies
of the Company or any of the obligations of any Shareholder under this Voting
Agreement.
5.16 Additional Shareholders. For the avoidance of doubt, the parties
acknowledge and agree that any Person that, pursuant to Section 3.1 or Section
3.3, agrees in a writing, reasonably satisfactory in form and substance to the
Company, to be bound by all of the terms of this Voting Agreement as a
"Shareholder" hereunder (it being understood that, by so agreeing to
9
be bound, such Person shall be deemed to be making as of the date of such
Person's execution of such writing, with respect to such Person (but not any
other Shareholder), the representations and warranties contained in Section 4.1
as if references therein to a Shareholder were references to such Person in such
Person's capacity as a Shareholder) shall have all of the rights and obligations
of a "Shareholder" hereunder and shall be a party hereto as a "Shareholder"
hereunder.
5.17 Construction.
(a) For purposes of this Voting Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa; the
masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the effect
that ambiguities are to be resolved against the drafting party shall not be
applied in the construction or interpretation of this Voting Agreement.
(c) As used in this Voting Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this Voting
Agreement to "Sections" and "Exhibits" are intended to refer to Sections of this
Voting Agreement and Exhibits to this Voting Agreement.
[Remainder of page intentionally left blank.]
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In Witness Whereof, the parties have caused this Voting Agreement to be
executed as of the date first written above.
THE D3 FAMILY FUND, L.P.
By: Xxxxxxxxxx Investment Management
Company, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxxx, President
Address: 00000 XX 0xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
THE D3 FAMILY BULLDOG FUND, L.P.
By: Xxxxxxxxxx Investment Management
Company, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxxx, President
Address: 00000 XX 0xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
THE D3 FAMILY CANADIAN FUND, L.P.
By: Xxxxxxxxxx Investment Management
Company, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxxx, President
Address: 00000 XX 0xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Signature Page to Voting Agreement
THE DIII OFFSHORE FUND, L.P.
By: Xxxxxxxxxx Investment Management
Offshore, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxxx, President
Address: 00000 XX 0xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
XXXXXXXXXX INVESTMENT MANAGEMENT
COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxxx, President
Address: 00000 XX 0xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
XXXXXXXXXX INVESTMENT MANAGEMENT
OFFSHORE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------
Xxxxx Xxxxxxxxxx, President
Address: 00000 XX 0xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
Signature Page to Voting Agreement
/s/ Xxxxx Xxxxxxxxxx
--------------------------------------------
Xxxxx Xxxxxxxxxx
Address: 00000 XX 0xx Xxxxxx
Xxxxx, XX 00000
Facsimile: (000) 000-0000
ELECTRO SCIENTIFIC INDUSTRIES, INC.
By: /s/ Xxxx X. Xxxxxx
--------------------------------------------
Name: Xxxx X. Xxxxxx
Title: Vice President of Administration,
Chief Financial Officer & Secretary
Signature Page to Voting Agreement
Exhibit A
Form of Irrevocable Proxy
Irrevocable Proxy
This Proxy is irrevocable (during the term of the Voting Agreement, as
hereinafter defined), is coupled with an interest and is granted in connection
with, and as security for, the Voting Agreement, dated as of the date hereof
(the "Voting Agreement"), between Electro Scientific Industries, Inc., an Oregon
corporation (the "Company"), and the undersigned Owner of shares of capital
stock of the Company (the "Shareholder"). This Proxy shall remain in effect for
so long as the Voting Agreement remains in effect. Capitalized terms used in
this Proxy and not otherwise defined shall have the meanings set forth in the
Voting Agreement.
With respect to any and all meetings of the shareholders of the Company
(however called) and any and all written actions by consent of shareholders of
the Company during the term of the Voting Agreement, the Shareholder, hereby
irrevocably (to the fullest extent permitted by law) appoints and constitutes
the Chief Executive Officer and the Chief Financial Officer of the Company, and
each of them, the attorneys and proxies of the Shareholder, with full power of
substitution and resubstitution, to the full extent of the Shareholder's rights
with respect to those shares of the capital stock of the Company now Owned or
hereafter Owned by the Shareholder that constitute Excess Shares as of the
record date with respect to such meeting or consent. Upon the execution of this
Proxy, all prior proxies given by the Shareholder with respect to any of the
Excess Shares are hereby revoked, and the Shareholder agrees that no subsequent
proxies will be given with respect to any of the Excess Shares. The Shareholder
acknowledges and agrees that any subsequent proxy given by the Shareholder with
respect to any shares of the capital stock of the Company Owned by the
Shareholder as of the record date for any meeting of the shareholders of the
Company (however called) or any written action by consent of shareholders of the
Company shall apply only to such of those shares that are not Excess Shares as
of such record date. The Shareholder further acknowledges and agrees that any
statement in any such subsequent proxy to the effect that such proxy revokes any
proxy or proxies previously given shall not apply to revoke this Proxy given
with respect to Excess Shares, as this Proxy is irrevocable (during the term of
the Voting Agreement). If the Shareholder is not the "beneficial owner" of the
Excess Shares (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934), the Shareholder acknowledges and agrees that this Proxy is
authorized by the beneficial owner of such Excess Shares.
During the term of the Voting Agreement, the attorneys and proxies named
above will be empowered, and may exercise this Proxy, to vote any Excess Shares
Owned by the undersigned, at any meeting of the shareholders of the Company
(however called) and in connection with any written action by consent of
shareholders of the Company, in accordance with the recommendation of the
Company's Board of Directors. For example and not by way of limitation, if
during the term of the Voting Agreement the Company's Board of Directors
recommends that shareholders of the Company vote in favor of a certain proposal
to be presented at any such meeting and against a certain other proposal to be
presented at such meeting, then the attorneys and proxies named above will be
empowered, and may exercise this Proxy, to vote any Excess Shares Owned by the
undersigned in favor of the former proposal and against the latter
Proxy
proposal. If the Shareholder is not the record owner of any such Excess Shares,
the Shareholder hereby authorizes the attorneys and proxies named above to
instruct each record owner of the Excess Shares to vote the Excess Shares, at
any meeting of the shareholders of the Company (however called) and in
connection with any written action by consent of shareholders of the Company, in
accordance with the recommendation of the Company's Board of Directors.
The Shareholder may vote all shares of the capital stock of the Company
Owned by the Shareholder that are not Excess Shares, and the attorneys and
proxies named above may not exercise this Proxy with respect to any such shares
that are not Excess Shares.
This Proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of the Shareholder.
Any term or provision of this Proxy that is invalid or unenforceable in
any situation in any jurisdiction shall not affect the validity or
enforceability of the remaining terms and provisions hereof or the validity or
enforceability of the offending term or provision in any other situation or in
any other jurisdiction. If the final judgment of a court of competent
jurisdiction declares that any term or provision hereof is invalid or
unenforceable, the Shareholder agrees that the court making such determination
shall have the power to limit the term or provision, to delete specific words or
phrases, or to replace any invalid or unenforceable term or provision with a
term or provision that is valid and enforceable and that comes closest to
expressing the intention of the invalid or unenforceable term or provision, and
this Proxy shall be enforceable as so modified. In the event such court does not
exercise the power granted to it in the prior sentence, the Shareholder agrees
to replace such invalid or unenforceable term or provision with a valid and
enforceable term or provision that will achieve, to the extent possible, the
economic, business and other purposes of such invalid or unenforceable term.
Dated: ________________
SHAREHOLDER
_______________________________________
Signature
_______________________________________
Printed Name
Proxy
