EXHIBIT 2
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Amended and Restated Shareholder Agreement
EXECUTION COPY
AMENDED AND RESTATED SHAREHOLDER AGREEMENT
THIS AMENDED AND RESTATED SHAREHOLDER AGREEMENT (this "Agreement") is
effective as of May 16, 2001 and is entered into on June 4, 2001, by and among
Credence Systems Corporation, a Delaware corporation ("Parent"), Iguana
Acquisition Corporation, an Oregon corporation and wholly owned subsidiary of
Parent ("Merger Sub"), and the undersigned shareholder ("Shareholder") of
Integrated Measurement Systems, Inc., a Oregon corporation ("Company").
RECITALS:
WHEREAS, Parent has agreed to acquire the outstanding securities of Company
pursuant to a statutory merger of Merger Sub with and into Company (the
"Merger") effected in part through the conversion of each outstanding share of
capital stock of Company (the "Company Capital Stock"), into shares of common
stock of Parent (the "Parent Shares") at the rate set forth in the Agreement
and Plan of Merger and Reorganization dated as of May 16, 2001 by and among
Parent, Merger Sub and Company (such agreement as it may be amended or restated
is hereinafter referred to as the "Reorganization Agreement") (the
"Transaction");
WHEREAS, Shareholder is the registered and beneficial owner of such number
of shares of the outstanding Company Capital Stock as is indicated on the
signature page of this Agreement (the "Shares");
WHEREAS, in order to induce Parent to enter into the Transaction, certain
shareholders of Company have agreed to vote the Shares and any other such
shares of Company Capital Stock so as to facilitate consummation of the
Transaction;
WHEREAS, concurrent with the execution of the Reorganization Agreement,
Parent, Merger Sub and Shareholder entered into the Shareholder Agreement,
dated as of May 16, 2001 (the "Prior Agreement"); and
WHEREAS, Parent, Merger Sub and Shareholder desire to amend and restate the
Prior Agreement and have agreed that (a) the Prior Agreement be of no further
force and effect and (b) this Agreement supercedes and replaces the Prior
Agreement in its entirety.
NOW, THEREFORE, in consideration of the promises and mutual agreements,
provisions and covenants set forth in the Reorganization Agreement, the parties
hereto agree as follows:
1. Share Ownership and Agreement to Retain Shares.
1.1 Encumbrance. Shareholder represents, warrants and, in subclause (v)
below, covenants to Parent that (i) Shareholder is the beneficial owner of
that number of Shares of Company Capital Stock set forth on the signature
page hereto; (ii) except as otherwise set forth on the signature page
hereto, Shareholder has held such Company Capital Stock at all times since
the date set forth on such signature page; (iii) the Shares constitute the
Shareholder's entire equity interest in the outstanding Company Capital
Stock; (iv) no other person or entity not a signatory to this Agreement has
a beneficial interest in or a right to acquire the Shares or any portion of
the Shares; and (v) the Shares are and will be at all times up until the
Expiration Date free and clear of any liens, claims, rights of first
refusal, options, charges or other encumbrances. For the avoidance of
doubt, nothing in this Agreement shall deem shares of outstanding Company
Capital Stock or options to acquire Company Capital Stock held by an
officer, director or employee of Shareholder to be beneficially owned by
Shareholder. As used herein, the term "Expiration Date" shall mean the
earlier to occur of (A) the Effective Time (as defined in the
Reorganization Agreement) of the Transaction, and (B) the termination of
the Reorganization Agreement pursuant to its terms.
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1.2 New Shares. Shareholder agrees that any shares of Company Capital
Stock that Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership after the date of this Agreement
and prior to the Expiration Date ("New Shares") shall be subject to the
terms and conditions of this Agreement to the same extent as if they
constituted Shares.
2. Agreement to Vote Shares. Prior to the Expiration Date, at every meeting
of the shareholders of Company called with respect to any of the following, and
at every adjournment thereof, and on every action or approval by written
resolution of the shareholders of Company with respect to any of the following,
Shareholder shall vote the Shares and any New Shares in favor of approval of
the Transaction and any matter or actions required to facilitate the
Transaction.
3. Irrevocable Proxy. Shareholder is hereby delivering to Parent a duly
executed proxy in the form attached hereto as Exhibit A (the "Proxy") with
respect to each meeting of shareholders of Company, such Proxy to cover the
total number of Shares and New Shares in respect of which Shareholder is
entitled to vote at any such meeting. Upon the execution of this Agreement by
the Shareholder, the Shareholder hereby revokes any and all prior proxies given
by the Shareholder with respect to the Shares and agrees not to grant any
subsequent proxies with respect to the Shares or any New Shares until after the
Expiration Date.
4. Representations, Warranties and Covenants of Shareholder. Shareholder
hereby represents, warrants and/or covenants to Parent as follows:
(a) Until the Expiration Date, the Shareholder will not (and will use
such Shareholder's commercially reasonable efforts to cause the Company,
its affiliates, officers, directors and employees and any investment
banker, attorney, accountant or other agent retained by such Shareholder,
not to): (i) initiate or solicit, directly or indirectly, any proposal,
plan of offer to acquire all or any substantial part of the business or
properties or Company Capital Stock, whether by merger, purchase of assets,
tender offer or otherwise, or to liquidate Company or otherwise distribute
to the Shareholders of Company all or any substantial part of the business,
properties or Company Capital Stock (each, an "Acquisition Proposal"); (ii)
initiate, directly or indirectly, any contact with any person in an effort
to or with a view towards soliciting any Acquisition Proposal; (iii)
furnish information concerning Company's business, properties or assets to
any corporation, partnership, limited liability company, limited
partnership, person or other entity or group (other than Parent or Merger
Sub, or any associate, agent or representative of Parent or Merger Sub),
under any circumstances that would reasonably be expected to relate to an
actual or potential Acquisition Proposal; or (iv) negotiate or enter into
discussions or an agreement, directly or indirectly, with any entity or
group with respect of any potential Acquisition Proposal provided that, in
the case of clauses (iii) and (iv), the foregoing shall not prevent
Shareholder, in Shareholder's capacity as a director or officer (as the
case may be) of Company, from taking any actions permitted under Section
4.3 of the Reorganization Agreement. In the event the Shareholder shall
receive or become aware of any Acquisition Proposal subsequent to the date
hereof, such Shareholder shall promptly inform Parent as to any such matter
and the details thereof to the extent possible without breaching any other
agreement to which such Shareholder is a party or violating its fiduciary
duties.
(b) Shareholder is competent to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and
delivered by Shareholder and, assuming the due authorization, execution and
delivery by Parent and Merger Sub, constitutes a legal, valid and binding
obligation of Shareholder, enforceable against Shareholder in accordance
with its terms except that (i) the enforceability thereof may be subject to
applicable bankruptcy, insolvency or other similar laws, now or hereinafter
in effect affecting creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of
equitable relief may be subject to equitable defenses and would be subject
to the discretion of the court before which any proceeding therefor may be
brought.
(c) The execution and delivery of this Agreement by Shareholder does
not, and the performance of this Agreement by Shareholder shall not, result
in any breach of or constitute a default (or an event that
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with notice or lapse of time or both would become a default) under, or give
to others any rights of termination, amendment, acceleration or
cancellation of, or result in the creation of a lien or encumbrance, on any
of the Shares or New Shares pursuant to, any note, bond, mortgage,
indenture, contract, agreement, commitment, lease, license, permit,
franchise or other instrument or obligation to which Shareholder is a party
or by which Shareholder or the Shares or New Shares are or will be bound or
affected.
5. Additional Documents. Shareholder hereby covenants and agrees to execute
and deliver any additional documents necessary, in the reasonable opinion of
Parent, to carry out the purpose and intent of this Agreement.
6. [Reserved].
7. Termination. This Agreement and the Proxy delivered in connection
herewith shall terminate and shall have no further force or effect as of the
Expiration Date.
8. Confidentiality. Shareholder agrees (i) to hold any information regarding
this Agreement and the Transaction in strict confidence, and (ii) not to
divulge any such information to any third person not subject to confidentiality
obligations, until such time as the Transaction has been publicly disclosed by
Parent, except as may otherwise be required by law.
9. Miscellaneous.
9.1 Severability. If any term, provision, covenant or restriction of
this Agreement or the Proxy is held by a court of competent jurisdiction to
be invalid, void or unenforceable, then the remainder of the terms,
provisions, covenants and restrictions of this Agreement shall remain in
full force and effect and shall in no way be affected, impaired or
invalidated.
9.2 Binding Effect and Assignment. This Agreement and all of the
provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement
nor any of the rights, interests or obligations of the parties hereto may
be assigned by either of the parties hereto without the prior written
consent of the other. This Agreement is binding upon Shareholder in
Shareholder's capacity as a shareholder of Company (and not in
Shareholder's capacity as a director or officer, as the case may be, of
Company) and only with respect to the specific matters set forth herein.
9.3 Amendment and Modification. This Agreement may not be modified,
amended, altered or supplemented except by the execution and delivery of a
written agreement executed by the parties hereto.
9.4 Specific Performance; Injunctive Relief. The parties hereto
acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or
agreements of Shareholder set forth herein. Therefore, it is agreed that,
in addition to any other remedies that may be available to Parent or Merger
Sub upon any such violation, Parent and Merger Sub shall have the right to
seek to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Parent or Merger Sub
at law or in equity, in connection with such enforcement and waives any
requirement for the security or posting of any bond in connection with such
enforcement.
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9.5 Notices. All notices, requests, demands or other communications that
are required or may be given pursuant to the terms of this Agreement shall
be in writing and shall be deemed to have been duly given if delivered by
hand or mailed by registered or certified mail, postage prepaid, as
follows:
(a) If to the Shareholder, at the address set forth below the
Shareholder's signature at the end hereof.
(b) if to Parent or Merger Sub, to:
Credence Systems Corporation
000 Xxxxxxx Xxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Telephone: (000) 000-0000
Facsimile: (000) 000-0000
with a copy to:
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
Two Embarcadero Place
0000 Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
(c) if to Shareholder, to its address set forth on the signature
page
with a copy to:
Xxxxxx, Xxxx & Xxxxxxxx LLP
Xxx Xxxxxxxxxx Xxxxxx
Xxxxxxx Xxxxx
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
9.6 Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the State of Oregon without regard
to any applicable conflicts of laws rules.
9.7 Entire Agreement. This Agreement and the Proxy contain the entire
understanding of the parties hereto in respect of the subject matter
hereof, and supersede all prior negotiations and understandings among the
parties hereto with respect to such subject matter.
9.8 Counterpart. This Agreement may be executed in several counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same agreement.
9.9 Effect of Headings. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this
Agreement.
9.10 Amendment and Restatement of Prior Agreement. Parent, Merger Sub
and Shareholder hereby agree that the Prior Agreement is hereby amended and
restated by this Agreement, which supercedes and replaces the Prior
Agreement in its entirety.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed as of the date first above written.
Credence Systems Corporation Cadence Design Systems, Inc.
/s/ Xxxx X. Xxxxxxxx /s/ X.X. Xxxxx XxXxxxxxx
By: ____________________________________ By: _________________________________
Xxxx X. Xxxxxxxx X.X. Xxxxx XxXxxxxxx
Name: __________________________________ Name: _______________________________
Senior V.P. & CFO Sr. Vice President & General
Title: _________________________________ Counsel
Title: ______________________________
Address: 0000 Xxxxx Xxxxxx, Xxxxxxxx
0
Xxx Xxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile No.: (408) 944-
6855
Telephone No.: (408) 944-
7748
Iguana Acquisition Corporation
/s/ Xxxx X. Xxxxxxxx
By: ____________________________________
Xxxx X. Xxxxxxxx
Name: __________________________________
CFO
Title: _________________________________
Total Number of Shares of Company Capital Stock owned on the date hereof:
Common Stock: 2,559,000
[SIGNATURE PAGE TO AMENDED AND RESTATED
SHAREHOLDER AGREEMENT]
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Exhibit A
IRREVOCABLE PROXY
TO VOTE STOCK OF
INTEGRATED MEASUREMENT SYSTEMS, INC.
The undersigned shareholder of Integrated Measurement Systems, Inc., a
Oregon corporation ("Company"), hereby irrevocably (to the full extent
permitted by the Oregon Business Corporation Act) appoints the members of the
Board of Directors of Credence Systems Corporation, a Delaware corporation
("Parent"), and each of them, or any other designee of Parent, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all of the shares of capital stock of Company that now are or
hereafter may be beneficially owned by the undersigned, and any and all other
shares or securities of Company issued or issuable in respect thereof on or
after the date hereof (collectively, the "Shares") in accordance with the terms
of this Irrevocable Proxy. The Shares beneficially owned by the undersigned
shareholder of Company as of the date of this Irrevocable Proxy are listed on
the final page of this Irrevocable Proxy. Upon the undersigned's execution of
this Irrevocable Proxy, any and all prior proxies given by the undersigned with
respect to any Shares are hereby revoked and the undersigned agrees not to
grant any subsequent proxies with respect to the Shares until after the
Expiration Date (as defined below).
This Irrevocable Proxy is irrevocable (to the extent provided in the Oregon
Business Corporation Act), is coupled with an interest, including, but not
limited to, that certain Amended and Restated Shareholder Agreement effective
as of May 16, 2001 and dated May 30, 2001, by and among Parent, Iguana
Acquisition Corporation ("Merger Sub") and the undersigned, and is granted in
consideration of Parent's entering into that certain Agreement and Plan of
Merger and Reorganization by and among Company, Parent and Merger Sub (the
"Reorganization Agreement"), which agreement provides for the merger of Merger
Sub with and into Company (the "Merger"). As used herein, the term "Expiration
Date" shall mean the earlier to occur of (i) such date and time as the Merger
shall become effective in accordance with the terms and provisions of the
Reorganization Agreement, and (ii) the date of termination of the
Reorganization Agreement pursuant to its terms. This Irrevocable Proxy shall
terminate on the Expiration Date.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the
Expiration Date, to act as the undersigned's attorney and proxy to vote the
Shares, and to exercise all voting and other rights of the undersigned with
respect to the Shares (including, without limitation, the power to execute and
deliver written consents pursuant to the Oregon Business Corporation Act), at
every annual, special or adjourned meeting of the shareholders of Company and
in every written consent in lieu of such meeting as follows:
[X]In favor of approval of the Merger and the Reorganization Agreement, in
favor of any matter or actions required to facilitate the Merger and
against any proposal for any recapitalization, merger, sale of assets or
other business combination relating to the Company (other than the
Merger).
The attorneys and proxies named above may not exercise this Irrevocable
Proxy on any other matter except as provided above. The undersigned shareholder
may vote the Shares on all other matters.
All authority herein conferred shall survive the death or incapacity of the
undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
This Irrevocable Proxy is coupled with an interest as aforesaid and is
irrevocable.
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Dated: May 16, 2001
Cadence Design Systems, Inc.
/s/ X.X. Xxxxx XxXxxxxxx
By: _________________________________
Name: X.X. Xxxxx XxXxxxxxx
Title: Sr. Vice President & General
Counsel
Shares beneficially owned:
2,559,000 shares of Company Common
Stock
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