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Exhibit 4
Kulicke & Xxxxx Industries, Inc., has entered into Affiliate Tender
Agreements with each of the persons listed below, in the form of the Agreement
as set forth in this Exhibit 4, provided that the number of Shares referred to
in each Agreement as beneficially owned by each such person is as set forth
below:
Number of shares
Stockholder Name beneficially owned
---------------- ------------------
Xxxxxx Xxxxxx 46,000
Xxxx Xxxxxxx 549,500
Xxxxxxx Xxxxxx 155,500
Xxxx Close 192,100
Xxxxxxx Xxxxxx 110,914
Xxxxxxx Fresh 186,536
Xxxxxx Xxxxxx 102,000
XX Xxxx 80,000
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Total 1,422,550
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AFFILIATE
TENDER AGREEMENT
TENDER AGREEMENT ("Agreement") dated as of October __, 2000 between
KULICKE AND XXXXX INDUSTRIES, INC., a Pennsylvania corporation ("Acquiror"), and
the undersigned stockholder (solely in his capacity as a stockholder and in no
circumstances in his capacity as an officer or director, the "Stockholder") of
CERPROBE CORPORATION, a Delaware corporation (the "Company").
WITNESSETH:
WHEREAS, the Stockholder beneficially owns an aggregate of __________
shares (together with any additional shares as to which beneficial ownership is
acquired by any member of the Stockholder Group described below, the "Company
Shares") of Common Stock, par value $.05 per share ("Company Common Stock"), of
the Company;
WHEREAS, Acquiror is prepared to enter into an Agreement and Plan of
Merger with the Company (the "Merger Agreement") providing for, among other
things, (i) the commencement by Acquiror of an offer (as amended or supplemented
in accordance with the Merger Agreement (the "Offer") to purchase for cash all
of the issued and outstanding shares of Company Common Stock at a price per
share of $_____, net to the seller in cash, and (ii) the merger of a wholly
owned subsidiary of Acquiror with and into the Company and the conversion in
such merger of each share of Company Common Stock into $____ cash, as set forth
in the Merger Agreement (the "Merger");
WHEREAS, the Stockholder, in his capacity as a stockholder of the Company,
fully supports the Offer and the Merger and, in order to encourage Acquiror to
enter into the Merger Agreement with the Company, is willing to enter into
certain arrangements with respect to the Company Shares;
NOW THEREFORE, in consideration of the premises set forth above, the
mutual promises set forth below, and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged and intending to be
legally bound, the parties hereto agree as follows:
1. Stockholder's Support of the Offer and the Merger Agreement. From
the date hereof until termination of the Merger Agreement in accordance
with its terms:
(a) The Stockholder shall not, and each corporation and other person
controlled by the Stockholder or any affiliate or associate thereof
controlled by the Stockholder, other than the Company and its subsidiaries
(collectively, the "Stockholder Group") shall not, directly or indirectly,
sell, assign, transfer, pledge or otherwise dispose of, or grant a proxy
with respect to, any Company Shares to any person other than Acquiror or
its designee, or grant an option with respect to any of the foregoing, or
enter
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into any other agreement or arrangement with respect to any of the
foregoing, or otherwise designed to limit or transfer any of the benefits
or risks of ownership thereof.
(b) The Stockholder shall not, and shall cause each other member of
the Stockholder Group not to, solicit or knowingly encourage (including by
way of furnishing non-public information or assistance), or take any other
action to knowingly facilitate or induce, any inquiries or the making of
any proposal that constitutes, or that may reasonably be expected to lead
to, any Competing Transaction (as defined in the Merger Agreement), or
enter into discussions or negotiate with any person or entity in
furtherance of any inquiries in order to obtain a Competing Transaction,
or agree to, or endorse, any Competing Transaction. The Stockholder shall
promptly notify Acquiror of all material terms of any such inquiries or
proposals received by Stockholder, or any member of the Stockholder Group,
or relating to any Competing Transaction, and if such inquiry or proposal
is in writing, the Stockholder shall deliver or cause to be delivered to
Acquiror a copy of such inquiry or proposal.
(c) Stockholder shall, and shall cause each member of the
Stockholder Group to, validly tender (or cause the record owner of such
shares to validly tender) (and not withdraw) pursuant to and in accordance
with the terms of the Offer as promptly as reasonably possible and in any
event prior to the tenth business day after commencement of the Offer (or
the earlier of the expiration date of the Offer and the third business day
after beneficial ownership of any such Company Shares, as the case may be,
is acquired by Stockholder if Stockholder acquires Company Shares after
the date hereof), all of the Company Shares. Notwithstanding the
provisions of the first sentence of this Section 1(c), any Company Shares
are for any reason withdrawn from the Offer or are not purchased pursuant
to the Offer, such Company Shares will remain subject to the terms of this
Agreement; provided that Stockholder shall not be obligated to tender any
Company Shares into the Offer (and shall have the right to withdraw any
Company Shares previously tendered) if the Merger Agreement is terminated
for any reason. Stockholder acknowledges that Merger Sub's obligation to
accept for payment and pay for Shares tendered in the Offer is subject to
all the terms and conditions of the Offer.
(d) The Stockholder shall, if requested by Acquiror, not, and it
shall cause each member of the Stockholder Group not to, vote any Company
Shares beneficially owned by any such person at any annual or special
meeting of stockholders, or execute any written consent of stockholders,
during such period.
(e) The Stockholder shall take all affirmative steps reasonably
requested by Acquiror to indicate its full support for the Offer and the
Merger, and hereby consents to Acquiror's announcement in any press
release, public filing, advertisement or other document, that the
Stockholder, as a stockholder of the Company, fully supports the Offer and
the Merger. Nothing herein shall be deemed to limit or restrict
Stockholder's right to fully and unconditionally discharge his fiduciary
duties as a member of the Board of Directors, if applicable.
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(f) Acquiror and the Stockholder agree that they shall use all
reasonable efforts to seek the successful completion of the Offer and the
Merger in an expeditious manner.
(g) To the extent inconsistent with the provisions of this Section
1, each member of the Stockholder Group hereby revokes any and all proxies
with respect to such member's Company Shares or any other voting
securities of the Company.
This Agreement is being entered into by the Stockholder solely in his
capacity as a stockholder of the Company. Nothing in this Agreement shall be
deemed to prohibit any Stockholder from acting in his capacity of officer or
director of the Company.
2. Miscellaneous
(a) Stockholder, on the one hand, and Acquiror, on the other,
acknowledge and agree that irreparable damage would occur if any of the
provisions of this Agreement were not performed in accordance with their
specific terms or were otherwise breached, and that monetary damages would
not be adequate to compensate for such a breach. It is accordingly agreed
that the parties shall be entitled to an injunction or injunctions to
prevent breaches of the provisions of this Agreement and to enforce
specifically the terms and provisions hereof in any court of the United
States or any state thereof having jurisdiction, in addition to any other
remedy to which they may be entitled at law or equity.
(b) Descriptive headings are for convenience only and shall not
control or affect the meaning or construction of any provision of this
Agreement.
(c) All notices, consents, requests, instructions, approvals and
other communications provided for herein shall be validly given, made or
served, if in writing and delivered personally, or sent by registered
mail, postage prepaid, or by telecopy (with a required copy by registered
mail):
If to Acquiror:
with a copy to:
F. Xxxxxxx Xxxxxxx, III
Drinker Xxxxxx & Xxxxx LLP
One Xxxxx Square
00xx xxx Xxxxxx Xxxxxxx
Xxxxxxxxxxxx, XX 00000-0000
Telecopier No.: 000-000-0000
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If to the Stockholder:
with a copy to:
Xxxxx Xxxxxxx, Esq.
Xxxxxx Godward LLP
0000 Xxxxxxxxx Xxxxx, Xxxxx 0000
Xxx Xxxxx, XX 00000-0000
Telecopier No.: 858-453-3555
or to such other address or telecopier number as any party may, from time to
time, designate in a written notice given in a like manner. Notice given by
telecopier shall be deemed delivered on the day the sender receives telecopier
confirmation that such notice was received at the telecopier number of the
addressee. Notice given by mail as set out above shall be deemed delivered three
days after the date the same is postmarked.
(d) From and after the termination of this Agreement, the covenants
of the parties set forth herein shall be of no further force or effect and
the parties shall be under no further obligation with respect thereto.
(e) Definitions. For purposes of this Agreement, the following
terms shall have the following meanings:
(i) Affiliate. "Affiliate" shall have the meaning ascribed to
it in Rule 12b-2 of the General Rules and Regulations under the
Exchange Act, as in effect on the date hereof.
(ii) Beneficial Owner. A person shall be deemed a "beneficial
owner" of or to have "beneficial ownership" Company Shares in
accordance with the interpretation of the term "beneficial
ownership" as defined in Rule 13-d(3) under the Exchange Act, as in
effect on the date hereof, provided that, for purposes hereof, a
person shall be deemed to be the beneficial owner of, and to have
beneficial ownership of, Company Shares that such person or any
Affiliate of such person has the right to acquire (whether such
right is exercisable immediately or only after the passage of time)
pursuant to any agreement, arrangement or understanding or upon the
exercise of conversion rights, exchange rights, warrant or options,
or otherwise.
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(iii) Person. A "person" shall mean any individual, firm,
corporation, partnership, trust, limited liability company or other
entity.
(f) Due Authorization; No Conflicts. The Stockholder hereby
represents and warrants to Acquiror as follows: Stockholder has full power
and authority to enter into this Agreement. Stockholder is the beneficial
or record owner of the number of Company Shares set forth in the first
Whereas clause of this Agreement, free and clear of all liens, charges,
encumbrances, adverse claims, voting agreements and commitments of every
kind. Neither Stockholder nor any company, trust or other entity
controlled by him owns any additional shares of the capital stock of the
Company or any interest therein or has any voting rights with respect to
any additional shares of capital stock of the Company. Neither the
execution or delivery of this Agreement nor the consummation of the
transactions contemplated herein will (a) conflict with or result in a
breach, default or violation of (i) any of the terms, provisions or
conditions of the Certificate of Incorporation or Bylaws of any member of
the Stockholder Group or (ii) any agreement, proxy, document, instrument,
judgment, decree, order, governmental permit, certificate, license, law,
statute, rule or regulation to which any member of the Stockholder Group
is a party or to which it is subject, (b) result in the creation of any
lien, charge or other encumbrance on any shares of Company Common Stock or
(c) require any member of the Stockholder Group to obtain the consent of
any third party. No consent, action, approval or authorization of, or
registration, declaration or filing with, any governmental department,
commission, agency or other instrumentality or any other person or entity
is required to authorize, or is otherwise required in connection with, the
execution and delivery of this Agreement or the Stockholder's performance
of the terms of this Agreement or the validity or enforceability of this
Agreement.
(g) Successors and Assigns. This Agreement shall be binding upon,
and inure to the benefit of, the parties hereto and their respective
heirs, personal representatives, successors, assigns and Affiliates, but
shall not be assignable by any party hereto without the prior written
consent of the other parties hereto.
(h) Waiver. No party may waive any of the terms or conditions of
this Agreement except by a duly signed writing referring to the specific
provision to be waived.
(i) Governing Law. This Agreement shall be governed by, and
construed and enforced in accordance with, the laws of the State of
Delaware.
(j) Entire Agreement. This Agreement constitutes the entire
agreement, and supersedes all other and prior agreements and
understandings, both written and oral,
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among the parties hereto and their Affiliates.
(k) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same instrument.
IN WITNESS WHEREOF, the Stockholder and Acquiror have each caused this
Agreement to be duly executed by their respective officers, each of whom is duly
authorized, all as of the day and year firsts above written.
KULICKE AND XXXXX INDUSTRIES, INC.
By:
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STOCKHOLDER:
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Print Name
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