Exhibit B
STOCKHOLDERS VOTING AGREEMENT
This STOCKHOLDERS VOTING AGREEMENT (this "AGREEMENT") is entered into
as of October 5, 2004, by and among Toppan Printing Co., Ltd., a Japanese
corporation ("TOPPAN"), E. I. du Pont de Nemours and Company, a Delaware
corporation ("DUPONT"), and DuPont Chemical and Energy Operations, Inc., a
Delaware corporation and wholly-owned subsidiary of DuPont ("DCEO", collectively
with DuPont, the "STOCKHOLDERS").
W I T N E S S E T H:
WHEREAS, as of the date hereof, each Stockholder "beneficially owns"
(as such term is defined in Rule 13d-3 promulgated under the Securities Exchange
Act of 1934, as amended) and is entitled to dispose of (or to direct the
disposition of) and to vote (or to direct the voting of) the number of Subject
Shares set forth opposite such Stockholder's name on Schedule I hereto;
WHEREAS, concurrently with the execution of this Agreement, Toppan,
Toppan Corporation, a Delaware corporation and a wholly-owned subsidiary of
Toppan ("MERGER SUB"), and DuPont Photomasks, Inc., a Delaware corporation (the
"COMPANY"), are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "MERGER AGREEMENT"), pursuant to which Merger Sub will merge
with and into the Company, with the Company surviving as a wholly-owned
subsidiary of Toppan (the "MERGER");
WHEREAS, as a material inducement to enter into the Merger Agreement
and to consummate the Merger, Toppan desires each Stockholder to agree, and each
Stockholder is willing to agree, to vote the Subject Shares and any other such
shares of capital stock of the Company acquired by such Stockholder so as to
facilitate consummation of the Merger.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound, hereby agree as
follows:
ARTICLE I
DEFINITIONS
Section 1.1 Capitalized Terms. For purposes of this Agreement,
capitalized terms used and not defined herein shall have the respective meanings
ascribed to them in the Merger Agreement.
Section 1.2 Other Definitions. For purposes of this Agreement:
(a) "Affiliate" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. For
purposes of this Agreement, with respect to each Stockholder, the term
"Affiliate" shall not include the Company and the Persons that directly, or
indirectly through one or more intermediaries, are controlled by the Company.
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(b) "Representative" means, with respect to any particular Person, any
director, officer, employee, accountant, consultant, legal counsel, investment
banker, advisor, agent or other representatives of such Person.
(c) "Subject Shares" means, with respect to any particular Stockholder,
(i) the number of shares of common stock, par value $0.01 per share (the "COMMON
STOCK"), of the Company set forth opposite such Stockholder's name on Schedule I
hereto, including any other shares of Common Stock the voting power over which
is acquired by such Stockholder during the period from and including the date
hereof through and including the date on which this Agreement is terminated in
accordance with its terms and (ii) any securities into which or for which any or
all of the Subject Shares may be changed or exchanged or which are received as a
result of any stock dividend or distribution, split-up, recapitalization,
combination, exchange of shares or the like.
ARTICLE II
VOTING AGREEMENT AND IRREVOCABLE PROXY
Section 2.1 Agreement to Vote the Subject Shares. Each Stockholder, in
its capacity as such, hereby agrees that, during the period commencing on the
date hereof and continuing until the termination of this Agreement (such period,
the "VOTING PERIOD"), at any meeting (or any adjournment or postponement
thereof) of the Company's stockholders, however called, or in connection with
any written consent of the Company's stockholders, such Stockholder shall vote
(or cause its controlled Affiliates to vote) the Subject Shares (x) in favor of
the adoption of the Merger Agreement, the Merger and the other transactions
contemplated by the Merger Agreement (and any actions required in furtherance
thereof), (y) against any action, proposal, transaction or agreement that would
result in a breach in any respect of any covenant, representation or warranty or
any other obligation or agreement of the Company contained in the Merger
Agreement, and (z) except with the written consent of Toppan, against the
following actions or proposals (other than the transactions contemplated by the
Merger Agreement): (i) any Takeover Proposal; and (ii) (A) any change in the
board of directors of the Company; (B) any amendment of the Company's
certificate of incorporation or bylaws; or (C) any other action or proposal
involving the Company or any of its Subsidiaries that, in the case of (A), (B)
or (C), is intended, or could reasonably be expected, to prevent, impede,
interfere with, delay, postpone or adversely affect the transactions
contemplated by the Merger Agreement; provided, however, that nothing in this
Agreement shall limit or affect any actions taken by any member of the board of
directors of the Company nominated by, or appointed at the request of, any
Stockholder solely in his or her capacity as a director of the Company. Any such
vote shall be cast or consent shall be given in accordance with such procedures
relating thereto so as to ensure that it is duly counted for purposes of
determining that a quorum is present and for purposes of recording the results
of such vote or consent. Each Stockholder agrees not to enter into any agreement
or commitment with any Person the effect of which would be inconsistent with or
violative of the provisions and agreements contained in this Article II.
Section 2.2 Grant of Irrevocable Proxy. Each Stockholder hereby
appoints any officer of Toppan and any designee of Toppan, and each of them
individually, as such Stockholder's proxy
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and attorney-in-fact, with full power of substitution and re-substitution, to
vote or act by written consent during the Voting Period with respect the Subject
Shares in accordance with Section 2.1. This proxy is given to secure the
performance of the duties of each Stockholder under this Agreement. Each
Stockholder shall promptly cause a copy of this Agreement to be deposited with
the Company at its principal place of business. Each Stockholder shall take such
further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy.
Section 2.3 Nature of Irrevocable Proxy. The proxy and power of
attorney granted pursuant to Section 2.2 by each Stockholder shall be
irrevocable during the term of this Agreement, shall be deemed to be coupled
with an interest sufficient in law to support an irrevocable proxy and shall
revoke any and all prior proxies granted by such Stockholder with respect to the
subject matter contemplated by Section 2.1. The power of attorney granted by
each Stockholder herein is a durable power of attorney and shall survive the
dissolution, bankruptcy, death or incapacity of such Stockholder. The proxy and
power of attorney granted hereunder shall terminate upon the termination of this
Agreement.
ARTICLE III
COVENANTS
Section 3.1 Generally.
(a) No Transfers. Except for pledges in existence as of the date
hereof, each Stockholder agrees that during the Voting Period, except as
contemplated by the terms of this Agreement, it shall not, and it shall cause
its controlled Affiliates not to, (i) sell, transfer, tender, pledge, encumber,
assign or otherwise dispose of (collectively, a "TRANSFER"), or enter into any
contract, option or other agreement with respect to, or consent to, a Transfer
of, any or all of the Subject Shares or (ii) take any action that would have the
effect of preventing, impeding, interfering with or adversely affecting its
ability to perform its obligations under this Agreement or the transactions
contemplated by the Merger Agreement or which would make any representation or
warranty of such Stockholder hereunder untrue or incorrect.
(b) No Exercise of Registration Rights. Each Stockholder agrees that it
shall not, and it shall cause its controlled Affiliates not to, directly or
indirectly, exercise any registration rights with respect to the Subject Shares,
including, without limitation, the registration rights set forth that certain
Registration Rights Agreement, dated December 31, 1995, by and among the Company
and DCEO.
Section 3.2 Standstill Obligations of Stockholders. Each Stockholder,
jointly and severally, covenants and agrees with Toppan that during the Voting
Period:
(a) Such Stockholder shall not, nor shall such Stockholder permit any
controlled Affiliate of such Stockholder to, nor shall such Stockholder act in
concert with or permit any controlled Affiliate to act in concert with any
Person to make, or in any manner participate in, directly or indirectly, a
"solicitation" of "proxies" (as such terms are used in the rules of the
Securities and Exchange Commission) or powers of attorney or similar rights to
vote, or seek to advise or
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influence any Person with respect to the voting of, any shares of Common Stock
in connection with any vote or other action on any matter, other than to
recommend that stockholders of the Company vote in favor of the adoption of the
Merger Agreement and otherwise as expressly provided by Article II of this
Agreement.
(b) Such Stockholder shall not, nor shall such Stockholder permit any
controlled Affiliate of such Stockholder to, nor shall such Stockholder act in
concert with or permit any controlled Affiliate to act in concert with any
Person to, deposit any shares of Common Stock in a voting trust or subject any
shares of Common Stock to any arrangement or agreement with any Person with
respect to the voting of such shares of Common Stock, except as provided by
Article II of this Agreement.
(c) Such Stockholder shall not, and shall direct its Representatives
not to, solicit or initiate any discussions or negotiations with, or knowingly
encourage any inquiries or proposals by, any Person, other than Toppan, relating
to any Takeover Proposal. Each Stockholder hereby represents that it is not
currently engaged in any discussions or negotiations with any party other than
Toppan with respect to any Takeover Proposal, and such Stockholder agrees not to
participate in any such discussions or negotiations, except to the same extent
permitted to the Company's Board of Directors by Section 5.3(a) of the Merger
Agreement.
(d) Notwithstanding any other provision of this Agreement, it is
understood and agreed that DuPont has one representative on the Company's Board
of Directors. Nothing in this Agreement shall require such Person to act (or
refrain from acting) in any manner in respect of such Person's capacity as a
director of the Company.
Section 3.3 Further Actions. Each Stockholder hereby covenants and
agrees to cooperate fully with Toppan and to execute and deliver any additional
documents necessary or desirable and to take such further actions that in the
reasonable opinion of Toppan may be necessary to carry out the intent of this
Agreement.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS
Each Stockholder hereby represents and warrants, jointly and severally,
to Toppan as follows:
Section 4.1 Due Organization, etc. Each Stockholder is a company duly
organized and validly existing under the laws of the jurisdiction of its
incorporation. Each Stockholder has all necessary corporate power and authority
to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby by each Stockholder have
been duly authorized by all necessary action on the part of such Stockholder.
Section 4.2 Ownership of Shares. Schedule I sets forth, opposite each
Stockholder's name, the number of shares of Common Stock over which such
Stockholder has record and
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beneficial ownership as of the date hereof. As of the date hereof, each
Stockholder is the lawful owner of the shares of Common Stock denoted as being
owned by such Stockholder on Schedule I and has the sole power to vote (or cause
to be voted) such shares of Common Stock. Other than pursuant to the Rights
Agreement, dated as of January 30, 2001, between the Company and EquiServe Trust
Company, N.A., as amended, no Stockholder or any Affiliate of a Stockholder owns
or holds any right to acquire any additional shares of any class of capital
stock of the Company or other securities of the Company or any interest therein
or any voting rights with respect to any securities of the Company. Each
Stockholder has good and valid title to the Subject Shares, free and clear of
any and all pledges, mortgages, liens, charges, proxies, voting agreements,
encumbrances, adverse claims, options, security interests and demands of any
nature or kind whatsoever, other than those created by this Agreement or as
could not reasonably be expected to impair any Stockholder's ability to perform
its obligations under this Agreement.
Section 4.3 No Conflicts. (i) No filing with any governmental
authority, and no authorization, consent or approval of any other Person is
necessary for the execution of this Agreement by any Stockholder and the
consummation by any Stockholder of the transactions contemplated hereby and (ii)
the execution and delivery of this Agreement by any Stockholder, the
consummation by any Stockholder of the transactions contemplated hereby or
compliance by any Stockholder with any of the provisions hereof shall not (A)
conflict with or result in any breach of the organizational documents of any
Stockholder, (B) result in, or give rise to, a violation or breach of or a
default (with notice or lapse of time, or both) under, or give to others any
rights of termination, amendment, acceleration or cancellation of, or result in
the creation of an encumbrance on or otherwise affecting any of the Subject
Shares pursuant to, any of the terms of any material contract, understanding,
agreement or other instrument or obligation to which any Stockholder is a party
or by which any Stockholder or any of the Subject Shares may be bound, or (C)
violate any applicable order, writ, injunction, decree, judgment, statute, rule
or regulation, except for any of the foregoing as could not reasonably be
expected to impair any Stockholder's ability to perform its obligations under
this Agreement.
Section 4.4 Enforceability. This Agreement has been duly executed and
delivered by each Stockholder and assuming the due authorization, execution and
delivery by Toppan, constitutes the legal, valid and binding obligations of each
Stockholder, enforceable against each Stockholder in accordance with its 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.
Section 4.5 Continuous Warranty. The representations and warranties
contained in this Agreement are accurate in all respects as of the date of this
Agreement, will be accurate in all respects at all times through the Expiration
Date (as defined in Section 6.1) and will be accurate in all respects as of the
date of the consummation of the Merger as if made on that date
Section 4.6 Reliance by Toppan. Each Stockholder understands and
acknowledges that Toppan is entering into the Merger Agreement in reliance upon
the execution and delivery of this Agreement by such Stockholder.
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ARTICLE V
REPRESENTATIONS AND WARRANTIES OF TOPPAN
Toppan hereby represents and warrants to the Stockholders as follows:
Section 5.1 Due Organization, etc. Toppan is a company duly organized
and validly existing under the laws of Japan. Toppan has all necessary corporate
power and authority to execute and deliver this Agreement and to consummate the
transactions contemplated hereby. The execution and delivery of this Agreement
and the consummation of the transactions contemplated hereby by Toppan have been
duly authorized by all necessary action on the part of Toppan.
Section 5.2 Conflicts. (i) No filing with any governmental authority,
and no authorization, consent or approval of any other Person is necessary for
the execution of this Agreement by Toppan and the consummation by Toppan of the
transactions contemplated hereby and (ii) none of the execution and delivery of
this Agreement by Toppan, the consummation by Toppan of the transactions
contemplated hereby shall (A) conflict with or result in any breach of the
organizational documents of Toppan, (B) result in, or give rise to, a violation
or breach of or a default under any of the terms of any material contract,
understanding, agreement or other instrument or obligation to which Toppan is a
party or by which Toppan or any of its assets may be bound, or (C) violate any
applicable order, writ, injunction, decree, judgment, statute, rule or
regulation, except for any of the foregoing as could not reasonably be expected
to impair Toppan's ability to perform its obligations under this Agreement.
Section 5.3 Enforceability. This Agreement has been duly executed and
delivered by Toppan and assuming the due authorization, execution and delivery
by the Stockholders, constitutes the legal, valid and binding obligations of
Toppan, enforceable against Toppan in accordance with its 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.
Section 5.4 Reliance by Stockholders. Toppan understands and
acknowledges that the Stockholders are entering into this Agreement in reliance
upon the execution and delivery of the Merger Agreement by Toppan.
ARTICLE VI
TERMINATION
Section 6.1 Termination. This Agreement shall terminate, and none of
Toppan or any Stockholder shall have any rights or obligations hereunder and
this Agreement shall become null and void and have no effect upon the earliest
to occur of (i) the mutual consent of Toppan and DuPont, (ii) the effective time
of the Merger, (iii) the date of termination of the Merger Agreement in
accordance with its terms, or (iv) the date of any amendment to the Merger
Agreement, without the consent of the Company's stockholders, that has the
effect of reducing the cash portion of the Merger Consideration to an amount
less than $27 per share (appropriately
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adjusted for any stock splits, stock dividends and the like) (the "EXPIRATION
DATE"); provided, however, that termination of this Agreement shall not prevent
any party hereunder from seeking any remedies (at law or in equity) against any
other party hereto for such party's breach of any of the terms of this
Agreement. Notwithstanding the foregoing, Sections 7.3, 7.4, 7.7 and 7.13,
inclusive, of this Agreement shall survive the termination of this Agreement.
ARTICLE VII
MISCELLANEOUS
Section 7.1 Appraisal Rights. To the extent permitted by applicable
law, each Stockholder hereby irrevocably and unconditionally waives any rights
of appraisal, dissenters' rights or similar rights that such Stockholder may
have in connection with the Merger. Each Stockholder shall cause to be
irrevocably and unconditionally waived any such rights that any Affiliate of
such Stockholder may have in connection with the Merger.
Section 7.2 Governmental Filings. Each Stockholder hereby permits
Toppan to file a copy of this Agreement with, and summarize its contents in, all
necessary filings with any governmental agency or organization.
Section 7.3 Indemnification. Without in any way limiting any of the
rights or remedies otherwise available to Toppan and Toppan's Affiliates, each
Stockholder shall, jointly and severally, hold harmless and indemnify Toppan and
Toppan's Affiliates from and against, and shall compensate and reimburse Toppan
and Toppan's Affiliates for, any loss, damage, injury, liability, exposure,
claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including
reasonable attorneys' fees), charge, cost or expense of any nature (whether or
not relating to a third party claim) which is directly or indirectly suffered or
incurred at any time by Toppan or any of Toppan's Affiliates, or to which Toppan
or any of Toppan's Affiliates otherwise becomes subject, and that arises from,
or relates to, any material inaccuracy in or material breach of any
representation, warranty, covenant, restriction or obligation of such
Stockholder contained in this Agreement.
Section 7.4 Fees and Expenses. Each of the parties shall be responsible
for its own fees and expenses (including, without limitation, the fees and
expenses of financial consultants, investment bankers, accountants and counsel)
in connection with the entering into of this Agreement and the consummation of
the transactions contemplated hereby and by the Merger Agreement.
Section 7.5 Amendments, Waivers, etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified, except upon the
execution and delivery of a written agreement executed by each of the parties
hereto. The failure of any party hereto to exercise any right, power or remedy
provided under this Agreement or otherwise available in respect hereof at law or
in equity, or to insist upon compliance by any other party hereto with its
obligations hereunder, and any custom or practice of the parties at variance
with the terms hereof shall not constitute a waiver by such party of its right
to exercise any such or other right, power or remedy or to demand such
compliance.
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Section 7.6 Specific Performance. The parties hereto acknowledge that
Toppan 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 the Stockholders
set forth herein. Therefore, it is agreed that, in addition to any other
remedies that may be available to Toppan upon any such violation, Toppan shall
have the right to enforce such covenants and agreements by specific performance,
injunctive relief or by any other means available to Toppan at law or in equity.
Section 7.7 Notices. Any notices or other communications required or
permitted under, or otherwise in connection with this Agreement shall be in
writing and shall be deemed to have been duly given when delivered in person or
upon confirmation of receipt when transmitted by facsimile transmission (with
confirmation) or on receipt after dispatch by registered or certified mail,
postage prepaid, addressed, or on the next business day if transmitted by
national overnight courier, in each case as follows:
If to Toppan or Merger Sub, addressed to:
Toppan Printing Co., Ltd.
1 Xxxxx Xxxxx-xxx,
Xxxxxxx-xx, Xxxxx 000-0000
Xxxxx
Fax: x00.0.0000.0000
Attn: General Manager of Legal Department
with a copy to:
Squire, Xxxxxxx & Xxxxxxx L.L.P.
Ebisu Prime Squire Tower, 16F
0-0-00 Xxxxx
Xxxxxxx-xx, Xxxxx 000-0000
Xxxxx
Fax: x00.0.0000.0000
Attn: Xxxxxxx X. Xxxxxxxx
If to Stockholders, addressed to:
E. I. du Pont de Nemours and Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Treasurer
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with a copy to:
E. I. du Pont de Nemours and Company
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Fax: (000) 000-0000
Attn: Corporate Secretary
Section 7.8 Headings. The headings contained in this Agreement are for
reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
Section 7.9 Severability. If any term or other provision of this
Agreement is invalid, illegal or incapable of being enforced by any rule of law
or public policy, all other conditions and provisions of this Agreement shall
nevertheless remain in full force and effect so long as the economic or legal
substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, the parties hereto
shall negotiate in good faith to modify this Agreement so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the end that transactions contemplated hereby are fulfilled to the extent
possible.
Section 7.10 Entire Agreement. This Agreement (together with the Merger
Agreement, to the extent referred to herein) constitutes the entire agreement of
the parties and supersedes all prior agreements and undertakings, both written
and oral, between the parties, or any of them, with respect to the subject
matter hereof.
Section 7.11 Assignment. This Agreement shall not be assigned by
operation of law or otherwise without the prior written consent of each of the
parties, except that each of Toppan and Merger Sub may assign and transfer its
rights and obligations hereunder to any direct or indirect wholly-owned
subsidiary of Toppan.
Section 7.12 Parties in Interest. This Agreement shall be binding upon
and inure solely to the benefit of each party hereto and their respective
successors and assigns, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any right, benefit or remedy
of any nature whatsoever under or by reason of this Agreement.
Section 7.13 Governing Law; Consent to Jurisdiction; Waiver of Trial by
Jury.
(a) This Agreement and any disputes arising from or relating thereto
shall be governed by and construed in accordance with the laws of the State of
Delaware, without regard to the principles of conflicts of laws thereof.
(b) Each of the parties hereto hereby irrevocably waives any and all
rights to trial by jury in any legal proceedings arising out of or related to
this Agreement or the Transactions.
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(c) Each of the parties hereto (i) consents to submit itself to the
personal jurisdiction of the Chancery Court located in the City of Wilmington,
State of Delaware, in the event any dispute arises out of this Agreement or any
of the Transactions, (ii) agrees that it will not attempt to deny or defeat such
personal jurisdiction by motion or other request for leave from any such court
and (iii) agrees that it will not bring any action relating to this Agreement or
any of the Transactions in any court other than the Chancery Court located in
the City of Wilmington, State of Delaware, and such court shall serve as the
exclusive venue for the resolution of all disputes arising out of or related to
this Agreement and the Transactions.
Section 7.14 Counterparts. This Agreement may be executed in
counterparts, each of which when executed shall be deemed to be an original but
all of which taken together shall constitute one and the same agreement.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, Toppan and the Stockholders have caused this
Agreement to be duly executed as of the day and year first above written.
Toppan Printing Co., Ltd.,
a Japanese corporation
By: /s/ XXXXX XXXXXX
_________________________________
Name: Xxxxx Xxxxxx
Title: President and CEO
E. I. du Pont de Nemours and Company,
a Delaware corporation
By: /s/ XXXX X. XXXXXX
_________________________________
Name: Xxxx X. Xxxxxx
Title: Vice President and Treasurer
DuPont Chemical and Energy Operations, Inc.,
a Delaware corporation
By: /s/ A. XXXXX XXXXX
_________________________________
Name: A. Xxxxx Xxxxx
Title: Vice President and Assistant Treasurer
[SIGNATURE PAGE TO STOCKHOLDERS VOTING AGREEMENT]
SCHEDULE I
OWNERSHIP OF COMMON STOCK
Name and address of Stockholder Number of Shares
------------------------------- ----------------
E. I. du Pont de Nemours and Company (1) 0*
0000, Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
DuPont Chemical and Energy Operations, Inc. 3,629,272
0000 Xxxxxx Xxxxxx
Xxxxxxxxxx, Xxxxxxxx 00000
----------
*DuPont does not directly own any shares of the Company, but is deemed to be the
beneficial owner of all the Company shares owned by DCEO.
