STOCKHOLDERS’ AGREEMENT
Exhibit 10.4
STOCKHOLDERS’
AGREEMENT
This STOCKHOLDERS’ AGREEMENT (this “Agreement”),
is dated as of September 1, 2008, by and between Teradyne,
Inc., a Massachusetts corporation (“Parent”) and the
stockholders listed on the signature pages hereto (each a
“Stockholder” and collectively, the
“Stockholders”).
W I T N E
S S E T H:
WHEREAS, Parent, Turin Acquisition Corp., a Delaware corporation
and a direct wholly owned subsidiary of Parent (“Merger
Sub”), and Eagle Test Systems, Inc., a Delaware corporation
(the “Company”), are entering into an Agreement and
Plan of Merger, dated as of the date hereof (as it may be
amended from time to time in accordance with its terms, the
“Merger Agreement”), providing for, among other
things, the merger of Merger Sub with and into the Company with
the Company surviving the merger as a wholly owned subsidiary of
Parent, in each case, on the terms and subject to the conditions
set forth in therein (capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms
in the Merger Agreement); and
WHEREAS, as of the date hereof, each Stockholder is the record
and beneficial owner of the number of shares of Common Stock set
forth, and in the manner reflected, on Attachment A
hereto (the “Owned Shares”); and
WHEREAS, as a condition to each of Parent and Merger Sub’s
willingness to enter into and perform their respective
obligations under the Merger Agreement, Parent and Merger Sub
have required that each Stockholder agree, and each Stockholder
has agreed, (i) to vote all of such Stockholder’s
Owned Shares as well as any shares of Common Stock acquired by
such Stockholder after the execution of this Agreement (all of
which, after so acquired, shall constitute “Owned
Shares”), whether upon the exercise of options, conversion
of convertible securities or otherwise, and any other voting
securities of the Company (whether acquired heretofore or
hereafter) that are beneficially owned by such Stockholder or
over which such Stockholder has, directly or indirectly, the
right to vote (collectively, the “Voting Shares”) in
favor of any proposal in furtherance of the Merger Agreement or
the transactions contemplated thereby, including the Merger, and
(ii) to take the other actions described herein; and
WHEREAS, each Stockholder desires to express its support for the
Merger Agreement and the transactions contemplated thereby,
including the Merger, by executing this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration given to each party hereto, the
receipt of which is hereby acknowledged, the parties agree as
follows:
1. Agreement to Vote; Irrevocable Proxy.
1.1 Agreement to Vote. Each
Stockholder hereby agrees that, during the time this Agreement
is in effect, at any meeting of the stockholders of the Company,
however called, or any adjournment or postponement thereof, such
Stockholder shall be present (in person or by proxy) and vote
(or cause to be voted) all of its Voting Shares (a) in
favor of the adoption of the Merger Agreement and
(b) against any Alternative Proposal and against any action
or agreement that would delay, prevent, impede or impair the
ability of Parent and Merger Sub to complete the Merger or the
ability of the Company to consummate the Merger or the
transactions contemplated by the Merger Agreement.
1.2 Irrevocable Proxy. Solely with
respect to the matters described in Section 1.1, for so
long as this Agreement has not terminated in accordance with
Section 5.1, each Stockholder hereby irrevocably appoints
Parent (or any nominee of Parent) as its attorney and proxy with
full power of substitution and resubstitution, to the full
extent of such Stockholder’s voting rights with respect to
such Stockholder’s Voting Shares (which proxy is
irrevocable and which appointment is coupled with an interest,
including for purposes of Section 212 of the Delaware
General Corporation Law) to vote all such Stockholder’s
Voting Shares solely
on the matters described in Section 1.1, and in accordance
therewith. Each Stockholder hereby revokes any proxies
previously granted that would otherwise conflict with the proxy
contemplated pursuant to this Section 1.2 and agrees to
execute any further agreement or form reasonably necessary or
appropriate to confirm and effectuate the grant of the proxy
contained herein. Such proxy shall automatically terminate upon
the valid termination of this Agreement in accordance with
Section 5.1.
2. Representations and Warranties of
Stockholders. Each Stockholder hereby
represents and warrants to Parent as follows:
2.1 Due Organization. Such
Stockholder, if a corporation or other entity, has been duly
organized, is validly existing and is in good standing under the
laws of the state of its formation or organization.
2.2 Power; Due Authorization; Binding
Agreement. Such Stockholder has full legal
capacity, power and authority 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 such
Stockholder and constitutes a valid and binding agreement of
such Stockholder, enforceable against Stockholder in accordance
with its terms, except to the extent that enforceability may be
subject to the effect of any applicable bankruptcy,
reorganization, insolvency, moratorium or other similar laws
affecting or relating to the enforcement of creditors rights
generally and to general principles of equity.
2.3 Ownership of Shares. On the
date hereof, the Owned Shares set forth opposite such
Stockholder’s name on Attachment A hereto are owned
of record or beneficially by such Stockholder in the manner
reflected thereon and include all of the Voting Shares owned of
record or beneficially by such Stockholder, free and clear of
any claims, liens, encumbrances and security interests, except
(if applicable) as set forth on Attachment A hereto,
which encumbrances or other items do not affect in any respect
the ability of such Stockholder to perform such
Stockholder’s obligations hereunder. As of the date hereof
such Stockholder has, and at all times prior to the valid
termination of this Agreement in accordance with
Section 5.1 such Stockholder will have (except as otherwise
permitted by this Agreement), sole voting power (to the extent
such securities have voting power) and sole dispositive power
with respect to all of the Owned Shares, except as otherwise
reflected on Attachment A.
2.4 No Conflicts. The execution
and delivery of this Agreement by such Stockholder does not, and
the performance of the terms of this Agreement by such
Stockholder will not, (a) require such Stockholder to
obtain the consent or approval of, or make any filing with or
notification to, any governmental or regulatory authority,
domestic or foreign, (b) require the consent or approval of
any other person or entity pursuant to any agreement, obligation
or instrument binding on such Stockholder or its properties and
assets, (c) conflict with or violate any organizational
document or law, rule, regulation, order, judgment or decree
applicable to such Stockholder or pursuant to which any of its
or its affiliates’ respective properties or assets are
bound or (d) violate any other agreement to which such
Stockholder or any of its affiliates is a party including,
without limitation, any voting agreement, stockholders
agreement, irrevocable proxy or voting trust. The Voting Shares
are not, with respect to the voting or transfer thereof, subject
to any other agreement, including any voting agreement,
stockholders agreement, irrevocable proxy or voting trust.
2.5 Acknowledgment. Such
Stockholder understands and acknowledges that each of Parent and
Merger Sub is entering into the Merger Agreement in reliance
upon such Stockholder’s execution, delivery and performance
of this Agreement.
3. Representations and Warranties of
Parent. Parent hereby represents and warrants
to the Stockholders as follows:
3.1 Power; Due Authorization; Binding
Agreement. Parent is a corporation duly
organized, validly existing and in good standing under the laws
of the Commonwealth of Massachusetts. Parent has full corporate
power and authority to execute and deliver this Agreement, to
perform its obligations hereunder and to consummate the
transactions contemplated hereby. The execution and delivery of
this Agreement and the consummation by Parent of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of
Parent, and no other proceedings on the part of Parent are
necessary to authorize this Agreement or to consummate the
transactions contemplated hereby. This Agreement has been
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duly and validly executed and delivered by Parent and
constitutes a valid and binding agreement of Parent, except that
enforceability may be subject to the effect of any applicable
bankruptcy, reorganization, insolvency, moratorium or other
similar laws affecting or relating to the enforcement of
creditors rights generally and to general principles of equity.
3.2 No Conflicts. The execution
and delivery of this Agreement by Parent does not, and the
performance of the terms of this Agreement by Parent will not,
(a) require Parent to obtain the consent or approval of, or
make any filing with or notification to, any governmental or
regulatory authority, domestic or foreign or (b) conflict
with or violate any organizational document or law, rule,
regulation, order, judgment or decree applicable to Parent or
pursuant to which any of its or its subsidiaries’
respective assets are bound.
4. Certain Covenants of the
Stockholders. Each Stockholder hereby
covenants and agrees with Parent as follows:
4.1 Restriction on Transfer, Proxies and
Non-Interference. Each Stockholder hereby
agrees, while this Agreement is in effect, at any time prior to
the Effective Time, and otherwise as is contemplated by the
Merger Agreement, not to (a) other than as may be
specifically required by a court order, which such Stockholder
shall use its reasonable best efforts to avoid (including by
offering substitute consideration or property) and provided
further that such Stockholder shall use reasonable best efforts
to cause any such Voting Shares to be transferred subject to
this Agreement, sell, transfer, pledge, encumber (except as set
forth on Attachment A or due to this Agreement), assign
or otherwise dispose of (including, without limitation, by gift,
merger, consolidation or reorganization), or enter into any
contract, option or other arrangement or understanding with
respect to the sale, transfer, pledge, encumbrance, assignment
or other disposition of, or limitation on the voting rights of,
any of the Voting Shares (any such action, a
“Transfer”), provided that nothing in this Agreement
shall prohibit the exercise by such Stockholder of any options
to purchase Voting Shares, (b) grant any proxies or powers
of attorney, deposit any Voting Shares into a voting trust or
enter into a voting agreement with respect to any Voting Shares,
(c) take any action that would cause any representation or
warranty of such Stockholder contained herein to become untrue
or incorrect or have the effect of preventing or disabling
Stockholder from performing its obligations under this
Agreement, or (d) commit or agree to take any of the
foregoing actions. Any action taken in violation of the
foregoing sentence shall be null and void ab initio and each
Stockholder agrees that any such prohibited action may and
should be enjoined. If any involuntary Transfer of any of the
Voting Shares shall occur (including, but not limited to, a sale
by a Stockholder’s trustee in any bankruptcy, or a sale to
a purchaser at any creditor’s or court sale or any sale or
transfer by operation of law, including, without limitation, by
will or intestacy), the transferee (which term, as used herein,
shall include any and all transferees and subsequent transferees
of the initial transferee) shall take and hold such Voting
Shares subject to all of the restrictions, liabilities and
rights under this Agreement, which shall continue in full force
and effect until valid termination of this Agreement.
4.2 Additional Shares. Each
Stockholder hereby agrees, while this Agreement is in effect,
that any shares of Common Stock acquired by such Stockholder
after the date hereof shall be subject to the terms of this
Agreement as though owned by such Stockholder on the date hereof.
4.3 No Limitations on
Actions. Each Stockholder signs this
Agreement solely in its capacity as the record
and/or
beneficial owner, as applicable, of the Owned Shares; any
trustee who signs this Agreement on behalf of a Stockholder that
is a trust is signing only in his fiduciary capacity and not as
an individual; this Agreement shall not limit or otherwise
affect the actions of such Stockholder or any affiliate,
employee or designee of such Stockholder or any of its
affiliates in any other capacity, including such person’s
capacity, if any, as an officer of the Company or a member of
the board of directors of the Company; and nothing herein shall
limit or affect the Company’s rights in connection with the
Merger Agreement.
4.4 No Solicitation. Each
Stockholder agrees, while this Agreement is in effect, not to
directly or indirectly engage in any activity which would be
prohibited pursuant to Section 5.2(a) of the Merger
Agreement if engaged in by the Company.
4.5 Disclosure. Each Stockholder
hereby permits Parent or the Company to publish and disclose in
any proxy materials (including, but not limited to, all
documents and schedules filed with the Securities and
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Exchange Commission) its identity and ownership of shares of
Common Stock and the terms of this Agreement.
4.6 Further Assurances. From time
to time, at the request of Parent and without further
consideration, each Stockholder shall execute and deliver such
additional documents and take all such further action as may be
necessary or reasonably desirable to consummate and make
effective the transactions contemplated by this Agreement.
5. Miscellaneous.
5.1 Termination of this
Agreement. This Agreement shall terminate
upon the earlier to occur of (i) the termination of the
Merger Agreement in accordance with its terms, or (ii) the
consummation of the Merger.
5.2 Effect of Termination. In the
event of termination of this Agreement pursuant to
Section 5.1, this Agreement shall become void and of no
effect with no liability on the part of any party hereto;
provided, however, no such termination shall relieve any party
hereto from any liability for any breach of this Agreement
occurring prior to such termination; and provided, further, that
upon payment of the Termination Fee (as defined in the Merger
Agreement) Stockholder shall have no further liability with
respect to this Agreement or the transactions contemplated
hereby.
5.3 Non-Survival. The
representations and warranties made herein shall not survive the
termination of this Agreement.
5.4 Entire Agreement;
Assignment. This Agreement constitutes the
entire agreement among the parties with respect to the subject
matter hereof and supersedes all other prior agreements and
understandings, both written and oral, among the parties with
respect to the subject matter hereof. Nothing in this Agreement,
express or implied, is intended to or shall confer upon any
other person or entity any right, benefit or remedy of any
nature whatsoever under or by reason of this Agreement. This
Agreement shall not be assigned by operation of law or otherwise
and shall be binding upon and inure solely to the benefit of
each party hereto.
5.5 Amendments. This Agreement may
not be modified, amended, altered or supplemented, except upon
the execution and delivery of a written agreement executed by
each of the parties hereto.
5.6 Notices. Any notice required
to be given hereunder shall be sufficient if in writing, and
sent by facsimile transmission (provided that any notice
received by facsimile transmission or otherwise at the
addressee’s location on any Business Day after
5:00 p.m. (addressee’s local time) shall be deemed to
have been received at 9:00 a.m. (addressee’s local
time) on the next Business Day), by reliable overnight delivery
service (with proof of service), hand delivery or certified or
registered mail (return receipt requested and first-class
postage prepaid), addressed as follows:
If to the Stockholders:
Foxman Family LLC
c/o Eagle
Test Systems, Inc.
0000 Xxxxxxxxx Xxxxx
Xxxxxxx Xxxxx, XX 00000
Fax:
(000) 000-0000
If to Parent:
Teradyne, Inc.
000 Xxxxxxxxx Xxxxx
Xxxxx Xxxxxxx, Xxxx. 00000
Attention: Xxxxxx Xxxxx, V.P. & General Counsel
Fax:
(000) 000-0000
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with copy to:
WilmerHale LLP
00 Xxxxx Xxxxxx
Xxxxxx, Xxxx 00000
Attention: Xxx X. Xxxxxxxx, Esq.
Fax:
000-000-0000
or to such other address as any party shall specify by written
notice so given, and such notice shall be deemed to have been
delivered as of the date so telecommunicated, personally
delivered or received. Any party to this Agreement may notify
any other party of any changes to the address or any of the
other details specified in this paragraph; provided, however,
that such notification shall only be effective on the date
specified in such notice or two Business Days after the notice
is given, whichever is later. Rejection or other refusal to
accept or the inability to deliver because of changed address of
which no notice was given shall be deemed to be receipt of the
notice as of the date of such rejection, refusal or inability to
deliver.
5.7 Governing Law; Venue.
(a) This Agreement shall be governed by, and construed in
accordance with, the Laws of the State of Delaware, without
giving effect to conflicts of laws principles that would result
in the application of the Law of any other state.
(b) Each of the parties hereto hereby irrevocably and
unconditionally submits, for itself and its property, to the
exclusive jurisdiction of the Delaware Court of Chancery, or, if
no such state court has proper jurisdiction, the Federal court
of the United States of America, sitting in Delaware, and any
appellate court from any thereof, in any action or proceeding
arising out of or relating to this Agreement or the transactions
contemplated hereby or for recognition or enforcement of any
judgment relating thereto, and each of the parties hereby
irrevocably and unconditionally (i) agrees not to commence
any such action or proceeding except in such courts;
(ii) agrees that any claim in respect of any such action or
proceeding may be heard and determined in such Delaware Court of
Chancery or, if no such state court has proper jurisdiction,
then in such Federal court; (iii) waives, to the fullest
extent it may legally and effectively do so, any objection which
it may now or hereafter have to the laying of venue of any such
action or proceeding in any such Delaware Court of Chancery or
Federal court; and (iv) waives, to the fullest extent
permitted by Law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such Delaware
Court of Chancery or Federal court. Each of the parties hereto
agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions
by suit on the judgment or in any other manner provided by Law.
Each party to this Agreement irrevocably consents to service of
process in the manner provided for notices in Section 5.6.
Nothing in this Agreement will affect the right of any party to
this Agreement to serve process in any other manner permitted by
Law. Each party hereto agrees not to commence any legal
proceedings relating to or arising out of this Agreement or the
Transactions in any jurisdiction or courts other than as
provided herein.
5.8 WAIVER OF JURY TRIAL. EACH
PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT
MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION
DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS
AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT:
(A) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY
HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY
WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE SUCH
WAIVER; (B) IT UNDERSTANDS AND HAS CONSIDERED THE
IMPLICATIONS OF SUCH WAIVER; (C) IT MAKES SUCH WAIVER
VOLUNTARILY; AND (D) IT HAS BEEN INDUCED TO ENTER INTO THIS
AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND
CERTIFICATIONS IN THIS SECTION 5.8.
5.9 Specific Performance. The
parties 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 were
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otherwise breached. Each Stockholder agrees that, in the event
of any breach or threatened breach by such Stockholder of any
covenant or obligation contained in this Agreement, Parent 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 Stockholder further agrees that neither Parent nor
any other person or entity 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 Stockholder irrevocably waives any
right it may have to require the obtaining, furnishing or
posting of any such bond or similar instrument.
5.10 Counterparts. This Agreement
may be executed in two or more counterparts, each of which shall
be deemed an original but all of which together shall be
considered one and the same agreement and shall become effective
when counterparts have been signed by each of the parties hereto
and delivered to the other parties, it being understood that all
parties need not sign the same counterpart. This Agreement may
be executed and delivered by facsimile transmission.
5.11 Descriptive Headings. The
descriptive headings used herein are inserted for convenience of
reference only and are not intended to be part of or to affect
the meaning or interpretation of this Agreement.
5.12 Severability. Any term or
provision of this 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 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.
[Remainder
of Page Intentionally Blank]
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IN WITNESS WHEREOF, the parties hereto have caused this
Stockholders’ Agreement to be duly executed as of the day
and year first above written.
TERADYNE, INC.
| By: |
/s/ Xxxxxxx
X. Xxxxxxx
|
Name: Xxxxxxx X. Xxxxxxx
| Title: | President and CEO |
FOXMAN FAMILY LLC
| By: |
/s/ Xxxxxxx
X. Xxxxxx
|
Name: Xxxxxxx X. Xxxxxx
| Title: | Trustee |
ATTACHMENT
A
Details
of Ownership
|
Shares
|
Entity or Individual Name
|
|||
| 2,152,868 | Foxman Family LLC | |||
