EXHIBIT 2.2
VOTING AGREEMENT
This Voting Agreement ("AGREEMENT") is made and entered into as of
September 9, 1997, between Silicon Valley Group, Inc., a Delaware corporation
("PARENT"), and the undersigned shareholder ("SHAREHOLDER") of Xxxxxxx
Laboratories, Inc., a California corporation (the "COMPANY").
RECITALS
A. Concurrently with the execution of this Agreement, Parent, the
Company and SV Acquisition, Inc., a California corporation and a wholly-owned
subsidiary of Parent ("MERGER SUB"), are entering into an Agreement and Plan
of Reorganization (the "MERGER AGREEMENT") which provides for the merger (the
"MERGER") of Merger Sub with and into the Company. Pursuant to the Merger,
shares of capital stock of the Company will be converted into Common Stock of
Parent on the basis described in the Merger Agreement.
B. The Shareholder is the record holder and beneficial owner (as
defined in Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "EXCHANGE ACT")), of such number of shares of the outstanding Common
Stock of the Company as is indicated on the final page of this Agreement
(the "SHARES").
C. As a material inducement to enter into the Merger Agreement, Parent
desires the Shareholder to agree, and the Shareholder is willing to agree, to
vote the Shares and any other such shares of capital stock of the Company so
as to facilitate consummation of the Merger.
NOW, THEREFORE, intending to be legally bound, the parties agree as
follows:
1. AGREEMENT TO VOTE SHARES; ADDITIONAL PURCHASES.
1.1 AGREEMENT TO VOTE SHARES. At every meeting of the
shareholders of the Company called with respect to any of the following, and
at every adjournment thereof, and on every action or approval by written
consent of the shareholders of the Company with respect to any of the
following, Shareholder shall vote the Shares and any New Shares in favor of
(x) approval of the Merger Agreement and the Merger and (y) any matter that
could reasonably be expected to facilitate the Merger.
1.2 ADDITIONAL PURCHASES. Shareholder agrees that any shares of
capital stock of the Company that Shareholder purchases or with respect to
which Shareholder otherwise acquires beneficial ownership after the execution
of this Agreement and prior to the date of termination of this Agreement
("NEW SHARES") shall be subject to the terms and conditions of this Agreement
to the same extent as if they constituted Shares.
2. IRREVOCABLE PROXY. Concurrently with the execution of this
Agreement, Shareholder agrees to deliver to Parent a proxy in the form
attached hereto as EXHIBIT A (the "PROXY"), which shall be irrevocable, with
the total number of shares of capital stock of the Company beneficially owned
(as such term is defined in Rule 13d-3 under the Exchange Act) by Shareholder
set forth therein.
3. REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDER. Shareholder (i)
is the beneficial owner of the Shares, which at the date hereof are free and
clear of any liens, claims, options, charges or other encumbrances; (ii) does
not beneficially own any shares of capital stock of the Company other than
the Shares (excluding shares as to which Shareholder currently disclaims
beneficial ownership in accordance with applicable law); and (iii) has full
power and authority to make, enter into and carry out the terms of this
Agreement.
4. ADDITIONAL DOCUMENTS. Shareholder hereby covenants and agrees to
execute and deliver any additional documents necessary or desirable, in the
reasonable opinion of Parent or Shareholder, as the case may be, to carry out
the intent of this Agreement.
5. CONSENT AND WAIVER. Shareholder hereby gives any consents or
waivers that are reasonably required for the consummation of the Merger under
the terms of any agreements to which Shareholder is a party or pursuant to
any rights Shareholder may have.
6. TERMINATION. This Agreement shall terminate and shall have no
further force or effect as of 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 Merger Agreement or (ii) such date and time as the Merger
Agreement shall have been terminated pursuant to Article VII thereof.
7. MISCELLANEOUS.
7.1 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, then the remainder of the terms, provisions, covenants
and restrictions
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of this Agreement shall remain in full force and effect and shall in no way
be affected, impaired or invalidated.
7.2 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 without prior written consent of the other.
7.3 AMENDMENTS AND MODIFICATION. This Agreement may not be
modified, amended, altered or supplemented except upon the execution and
delivery of a written agreement executed by the parties hereto.
7.4 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 upon any such
violation, Parent shall have the right to enforce such covenants and
agreements by specific performance, injunctive relief or by any other means
available to Parent at law or in equity.
7.5 NOTICES. All notices, requests, claims, demands and other
communications hereunder shall be in writing and sufficient if delivered in
person, by cable, telegram or telex, or sent by mail (registered or certified
mail, postage prepaid, return receipt requested) or overnight courier
(prepaid) to the respective parties as follows:
If to Parent: Silicon Valley Group, Inc.
000 Xxxxx Xxxxx, Xxxxx 000
Xxx Xxxx, XX 00000
Attn: Chief Executive Officer
With a copy to: Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, P.C.
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attn: Xxxxx X. Xxxxxxx, Esq.
Xxxxx X. Xxxxx, Esq.
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If to the Shareholder: To the address for notice set forth on the
last page hereof.
or to such other address as any party may have furnished to the other in
writing in accordance herewith, except that notices of change of address
shall only be effective upon receipt.
7.6 GOVERNING LAW. This Agreement shall be governed by, and
construed and enforced in accordance with, the internal laws of the State of
California (without regard to the principles of conflict of laws thereof).
7.7 ENTIRE AGREEMENT. This Agreement contains the entire
understanding of the parties in respect of the subject matter hereof, and
supersedes all prior negotiations and understandings between the parties with
respect to such subject matter.
7.8 COUNTERPARTS. This Agreement may be executed in counterparts,
each of which shall be an original, but all of which together shall
constitute one and the same agreement.
7.9 EFFECT OF HEADINGS. The section headings herein are for
convenience only and shall not affect the construction or interpretation of
this Agreement.
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IN WITNESS WHEREOF, the parties have caused this Voting Agreement to be
duly executed on the date and year first above written.
SILICON VALLEY GROUP, INC.
By:______________________________
Title:___________________________
SHAREHOLDER:
By:______________________________
Shareholder's Address for Notice:
_________________________________
_________________________________
_________________________________
__________ Shares of Common Stock
Beneficially Owned
***VOTING AGREEMENT***
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Exhibit A
IRREVOCABLE PROXY
The undersigned Shareholder of Xxxxxxx Laboratories, Inc., a California
corporation (the "COMPANY"), hereby irrevocably appoints the directors on the
Board of Directors of Silicon Valley Group, Inc., a Delaware corporation
("PARENT"), and each of them, as the sole and exclusive attorneys and proxies
of the undersigned, with full power of substitution and resubstitution, to
the full extent of the undersigned's rights with respect to the shares of
capital stock of the Company beneficially owned by the undersigned, which
shares are listed on the final page of this Proxy (the "SHARES"), and any and
all other shares or securities issued or issuable in respect thereof on or
after the date hereof, until such time as that certain Agreement of Merger
and Plan of Reorganization dated as of September 9, 1997 (the "MERGER
AGREEMENT"), among Parent, SV Acquisition, Inc., a California corporation and
a wholly-owned subsidiary of Parent ("MERGER SUB"), and the Company, shall be
terminated in accordance with its terms or the Merger (as defined in the
Merger Agreement) is effective. Upon the execution hereof, all prior proxies
given by the undersigned with respect to the Shares and any and all other
shares or securities issued or issuable in respect thereof on or after the
date hereof are hereby revoked and no subsequent proxies will be given.
This proxy is irrevocable, is granted pursuant to the Voting Agreement
dated as of September 9, 1997 between Parent and the undersigned Shareholder
(the "VOTING AGREEMENT"), and is granted in consideration of Parent entering
into the Merger Agreement. The attorneys and proxies named above will be
empowered at any time prior to termination of the Merger Agreement to
exercise all voting and other rights (including, without limitation, the
power to execute and deliver written consents with respect to the Shares) of
the undersigned at every annual, special or adjourned meeting of the Company
shareholders, and in every written consent in lieu of such a meeting, or
otherwise, in favor of approval of the Merger and the Merger Agreement and
any matter that could reasonably be expected to facilitate the Merger.
The attorneys and proxies named above may only exercise this proxy to
vote the Shares subject hereto at any time prior to termination of the Merger
Agreement at every annual, special or adjourned meeting of the shareholders
of the Company and in every written consent in lieu of such meeting, in favor
of approval of the Merger and the Merger Agreement and any matter that could
reasonably be expected to facilitate the Merger. The undersigned Shareholder
may vote the Shares on all other matters.
Any obligation of the undersigned hereunder shall be binding upon the
successors and assigns of the undersigned.
This proxy is irrevocable.
Dated: September __, 1997
Signature of Shareholder:_____________________________________
Print Name of Shareholder:____________________________________
_____________________________Shares of Common Stock Beneficially Owned
***PROXY***
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