EXHIBIT 4
VOTING AGREEMENT
AGREEMENT, dated as of October 30, 2001 between Xxxxxxx Electric Co.,
a Missouri corporation ("Xxxxxxx"), and Xxxx X. Xxxxxxxx, Xxxxxx X. Xxxxxxxx
and the trusts set forth on Schedule 1 ("Stockholders").
WHEREAS, in order to induce Xxxxxxx to enter into the Agreement and
Plan of Merger with respect to the Acquisition of the ENI Business (the
"Acquisition Agreement") with MKS Instruments, Inc., a Massachusetts
corporation (the "Company"), Xxxxxxx has requested that each Stockholder, and
each Stockholder has agreed, to enter into this Agreement with respect to all
shares of common stock, no par value, of the Company ("Common Stock") that each
Stockholder owns of record as set forth in Schedule 1 hereto (such shares,
together with any other voting or equity securities of the Company hereafter
acquired by each Stockholder prior to the termination of this Agreement, being
referred to herein collectively as the "Shares").
NOW, THEREFORE, the parties hereto agree as follows:
Article 1
DEFINITIONS
"Related Agreements" means this Agreement, and the Shareholder
Agreement to be entered into by the Company and Xxxxxxx at or prior to Closing.
Article 2
GRANT OF PROXY; VOTING AGREEMENT
Section 2.01 Buyer Voting Proposal. (a) Each Stockholder hereby
agrees to vote all Shares that each Stockholder is entitled to vote at the time
of any vote to approve the Buyer Voting Proposal, and any actions related
thereto at any meeting of the stockholders of the Company, and at any
adjournment thereof, and in any action by written consent of the stockholders
of the Buyer, at which such Buyer Voting Proposal, or such other actions, are
submitted for the consideration and vote of the stockholders of the Company,
until this Agreement is terminated in accordance with the terms hereof.
(a) Until the Buyer Voting Proposal shall have received the Buyer
Requisite Vote, each Stockholder hereby agrees that it will not vote any Shares
in
favor of the approval of any (i) Acquisition Proposal, or (ii) reorganization,
recapitalization, liquidation or winding up of the Company or any other
extraordinary transaction involving the Company which in each case set forth in
this clause (ii) would have the effect of preventing or delaying the
consummation of the transactions which are the subject of the Buyer Voting
Proposal.
Section 2.02 Election of Directors. (a) As long as Xxxxxxx is
entitled to designate a Director in accordance with Article 2 of the
Shareholder Agreement, each Stockholder hereby agrees to vote all shares that
each Stockholder is entitled to vote at the time of any vote in favor of any
person designated by Xxxxxxx in accordance with Section 2 of the Shareholder
Agreement (an "Xxxxxxx Designee") who has been nominated to serve on the Board
at the time of such vote at any meeting of the stockholders of the Company, and
at any adjournment thereof, and in any action by written consent of the
stockholders of the Company, at which the election of an Xxxxxxx Designee on
the Board is submitted for the consideration and vote of the stockholders of
the Company.
(b) As long as Xxxxxxx is entitled to designate a Director in
accordance with Article 2 of the Shareholder Agreement, each Stockholder agrees
it will vote (or will cause to be voted) any Shares against the removal of the
Xxxxxxx Designee from the Board (other than for fraud, dishonesty or similar
acts) unless Xxxxxxx shall have consented to such removal in writing.
Section 2.03 Proxy. Each Stockholder hereby irrevocably grants to,
and appoints, the Seller, and any individual designated in writing by the
Seller, and each of them individually, as his proxy and attorney-in-fact (with
full power of substitution), for and in his name, place and xxxxx, to vote his
Shares at the Buyer Stockholder Meeting or any other meeting of the
stockholders of the Buyer, however called, and in any action by written consent
of the stockholders of the Buyer with respect to any of the matters specified
in, and in accordance and consistent with, Section 2.01. Each Stockholder
hereby affirms that the irrevocable proxy set forth in this Section 2.03 is
given in connection with the execution of the Acquisition Agreement, and that
such irrevocable proxy is given to secure the performance of the duties of such
Stockholder under Section 2.01 of this Agreement. Except as otherwise provided
for herein, each Stockholder hereby (i) affirms that the irrevocable proxy is
coupled with an interest and may under no circumstances be revoked, (ii)
ratifies and confirms all that the proxies appointed hereunder may lawfully do
or cause to be done by virtue hereof and (iii) affirms that such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 41 of Chapter 156B of the Massachusetts General Laws.
Notwithstanding any other provisions of this Agreement, the irrevocable proxy
granted hereunder shall automatically terminate upon the earlier of (a) the
Closing, or (b) termination of this Agreement in accordance with the terms
thereof.
2
Section 2.04 Representation at Meetings of Stockholders. Each Stockholder shall
cause all Shares that each Stockholder is entitled to vote to be represented,
in person or by proxy, at all meetings of the Company's stockholders, so that
the Shares may be counted for the purpose of determining the presence of a
quorum at all such meetings (a) held from the date hereof until Closing, and
(b) held after Closing, at which the election of an Xxxxxxx Designee on the
Board is submitted for the consideration and vote of the stockholders of the
Company.
Article 3
REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Each Stockholder represents and warrants to Xxxxxxx that:
Section 3.01 Binding Effect. This Agreement has been duly and
validly executed and delivered by each Stockholder and constitutes a valid and
binding agreement enforceable against such Stockholder in accordance with its
terms except to the extent such enforcement may be limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
Section 3.02 Non-Contravention. The execution, delivery and
performance by each Stockholder of this Agreement and the consummation of the
transactions contemplated hereby do not and will not (i) violate any applicable
law, rule, regulation, judgment, injunction, order or decree, (ii) require any
consent or other action by any Person under, constitute a default under, or
give rise to any right of termination, cancellation or acceleration or to a
loss of any benefit to which Stockholder is entitled under any provision of any
agreement or other instrument binding on such Stockholder or (iii) result in
the imposition of any lien on any asset of such Stockholder, except pursuant to
the terms of this Agreement.
Section 3.03 Ownership of Shares. Each Stockholder is the record
owner of the Shares, free and clear of any lien and any other limitation or
restriction (including any restriction on the right to vote or otherwise
dispose of the Shares), except pursuant to the terms of this Agreement. None of
the Shares is subject to any voting trust or other agreement or arrangement
with respect to the voting of such Shares.
Section 3.04 Total Shares. Except for the Shares set forth on the
signature page hereto, each Stockholder does not beneficially own any (i)
shares of capital stock or voting securities of the Company, (ii) securities of
the
3
Company convertible into or exchangeable for shares of capital stock or voting
securities of the Company or (iii) options or other rights to acquire from the
Company any capital stock, voting securities or securities convertible into or
exchangeable for capital stock or voting securities of the Company other than
options to purchase the Company's Common Stock under the Company's employee or
officer and director stock options plans.
Section 3.05 Finder's Fees. No investment banker, broker, finder or
other intermediary is entitled to a fee or commission from Xxxxxxx in respect
of this Agreement based upon any arrangement or agreement made by or on behalf
of any Stockholder.
Section 3.06 Reliance by Xxxxxxx. Each Stockholder understands and
acknowledges that Xxxxxxx is entering into the Acquisition Agreement in
reliance upon each Stockholder's execution and delivery of this Agreement.
Article 4
REPRESENTATIONS AND WARRANTIES OF XXXXXXX
Xxxxxxx represents and warrants to each Stockholder:
Section 4.01 Corporate Authorization. The execution, delivery and
performance by Xxxxxxx of this Agreement and the consummation by Xxxxxxx of the
transactions contemplated hereby are within the corporate powers of Xxxxxxx and
have been duly authorized by all necessary corporate action. This Agreement
constitutes a valid and binding Agreement of Xxxxxxx.
Article 5
COVENANTS OF STOCKHOLDER
Each Stockholder hereby covenants and agrees that:
Section 5.01 No Proxies for or Encumbrances on Shares. Each
Stockholder shall not, without the prior written consent of Xxxxxxx, directly
or indirectly, (i) grant any proxies or enter into any voting trust or other
agreement or arrangement with respect to the voting of any Shares or (ii) sell,
assign, transfer, encumber or otherwise dispose of, or enter into any contract,
option or other arrangement or understanding with respect to the direct or
indirect acquisition or sale, assignment, transfer, encumbrance or other
disposition of, any Shares unless any transferee or security holder (as
applicable) agrees to be bound by all of the obligations of such Stockholder
under this Agreement; provided, that:
4
(i) the Shareholders may sell or make gifts of an aggregate of up to
750,000 Shares after the date hereof; and
(ii) if Xxxx X. Xxxxxxxx and/or Xxxxxx X. Xxxxxxxx transfer any
Shares to their children, grandchildren or any trusts for
their benefit, any such transferee shall, to the extent
permitted by applicable tax laws, agree to be bound by the
provisions of this Agreement except for Section 2.02.
Section 5.02 Other Offers. Until the Buyer Voting Proposal has
received the Buyer Requisite Vote, each Stockholder shall not, and will use his
Reasonable Best Efforts to cause his representatives not to, directly or
indirectly, (i) solicit, initiate, encourage or take any other action to
facilitate any inquiries or the making of any proposal or offer that
constitutes, or could reasonably be expected to lead to, any Acquisition
Proposal or (ii) enter into, continue or otherwise participate in any
discussions or negotiations regarding, furnish to any person any information
relating to the Company or any of its Subsidiaries or afford access to the
business, properties, assets, books or records of the Company or any of its
Subsidiaries to, or otherwise cooperate in any way with, or knowingly assist,
participate in, facilitate or encourage any effort by any person that is
seeking to make, or has made, an Acquisition Proposal.
Section 5.03 Termination. The provisions of this Article 5 shall
terminate and be of no further effect upon the earlier of (a) the Closing or
(b) termination of the Acquisition Agreement in accordance with the terms
thereof.
Article 6
MISCELLANEOUS
Section 6.01 Amendments; Termination. Any provision of this
Agreement may be amended or waived if, but only if, such amendment or waiver is
in writing and is signed, in the case of an amendment, by each party to this
Agreement or in the case of a waiver, by the party against whom the waiver is
to be effective. This Agreement shall terminate (i) upon the termination of the
Acquisition Agreement in accordance with its terms or (ii) at such time after
the Closing as Xxxxxxx no longer has the right to designate a Director in
accordance with Article 2 of the Shareholder Agreement, provided that no such
termination shall relieve any party of liability for willful breach hereof
prior to termination.
Section 6.02 Successors and Assigns. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto
and their respective successors and assigns; provided that no party may assign,
delegate or otherwise transfer any of its rights or obligations under this
5
Agreement without the consent of the other parties hereto, except that Xxxxxxx
may transfer or assign its rights and obligations to any Affiliate of Xxxxxxx.
Section 6.03 Governing Law. This Agreement shall be construed in
accordance with and governed by the laws of the Commonwealth of Massachusetts
without regard to the principles of conflicts of law thereof.
Section 6.04 Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective when each party hereto shall
have received counterparts hereof signed by all of the other parties hereto.
Section 6.05 Severability. If any term, provision or covenant of
this Agreement is held by a court of competent jurisdiction or other authority
to be invalid, void or unenforceable, the remainder of the terms, provisions
and covenants of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated. 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 to the
fullest extent permitted by applicable law in a mutually acceptable manner in
order that the terms of this Agreement remain as originally contemplated to the
fullest extent possible.
Section 6.06 Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement is
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof in addition to any other
remedy to which they are entitled at law or in equity.
Section 6.07 Capitalized Terms. Capitalized terms used but not
defined herein shall have the respective meanings set forth in the Acquisition
Agreement.
Section 6.08 Interpretation. Whenever the context may require, any
pronouns used in this Agreement shall include the corresponding masculine,
feminine or neuter forms, and the singular form of nouns and pronouns shall
include the plural, and vice versa.
Section 6.09 Fiduciary Duties. Each Stockholder is signing this
Agreement solely in such Stockholder's capacity as an owner of Shares, and
nothing herein shall prohibit, prevent or preclude such Stockholder from taking
or not taking any action in his capacity as an officer or director of the
Company (as applicable) or as a trustee, to the extent permitted by the
Acquisition Agreement.
6
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed as of the day and year first above written.
XXXXXXX ELECTRIC CO.
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Senior Vice President-Development
XXXX X. XXXXXXXX
/s/ Xxxx X. Xxxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxxx
XXXXXX X. XXXXXXXX
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx
Each of the following individuals
is executing this Agreement solely
in his or her capacity as a Trustee
of those trusts listed on Schedule
I hereto of which such person
serves as a Trustee, and not
individually
/s/ Xxxx X. Xxxxxxxx
-------------------------------------------
Xxxx X. Xxxxxxxx
/s/ Xxxxxx X. Xxxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxxx
/s/ Xxxxxxx X. Xxxxx
-------------------------------------------
Xxxxxxx X. Xxxxx
/s/ Xxxxxx X. Xxxxxxx
-------------------------------------------
Xxxxxx X. Xxxxxxx
SCHEDULE I
----------
Name Number of Shares
---- ----------------
Xxxx X. Xxxxxxxx 5,917,774
Xxxxxx X. Xxxxxxxx 6,092,236
Xxxxxx X. Xxxxxxxx & Xxxxxxx X. Xxxxx as Trustees 739,028
of the Xxxx X. Xxxxxxxx 2nd Family Trust of 12/15/86
FBO Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx & Xxxxxxx X. Xxxxx as Trustees 739,028
of the Xxxx X. Xxxxxxxx 2nd Family Trust of 12/15/86
FBOJanet X. Xxxxxxxx
Xxxx X. Xxxxxxxx & Xxxxxx X. Xxxxxxx as Trustees 739,028
of the Xxxxxx X. Xxxxxxxx 2nd Family Trust of 12/15/86
FBO Xxxxx X. Xxxxxxxx
Xxxx X. Xxxxxxxx & Xxxxxx X. Xxxxxxx, Trustees, 739,028
of the Xxxxxx X. Xxxxxxxx 2nd Family Trust of 12/15/86
FBO Xxxxx X. Xxxxxxxx
