EXHIBIT 2
Irrevocable Proxy
This Proxy is irrevocable (during the term of the Voting Agreement, as
hereinafter defined), is coupled with an interest and is granted in connection
with, and as security for, the Voting Agreement, dated as of the date hereof
(the "Voting Agreement"), between Electro Scientific Industries, Inc., an Oregon
corporation (the "Company"), and each of the undersigned Owners of shares of
capital stock of the Company (each, a "Shareholder"). This Proxy shall remain in
effect for so long as the Voting Agreement remains in effect. Capitalized terms
used in this Proxy and not otherwise defined shall have the meanings set forth
in the Voting Agreement.
With respect to any and all meetings of the shareholders of the Company
(however called) and any and all written actions by consent of shareholders of
the Company during the term of the Voting Agreement, each Shareholder, hereby
irrevocably (to the fullest extent permitted by law) appoints and constitutes
the Chief Executive Officer and the Chief Financial Officer of the Company, and
each of them, the attorneys and proxies of the Shareholder, with full power of
substitution and resubstitution, to the full extent of the Shareholder's rights
with respect to those shares of the capital stock of the Company now Owned or
hereafter Owned by the Shareholder that constitute Excess Shares as of the
record date with respect to such meeting or consent. Upon the execution of this
Proxy, all prior proxies given by each Shareholder with respect to any of the
Excess Shares are hereby revoked, and the Shareholder agrees that no subsequent
proxies will be given with respect to any of the Excess Shares. Each Shareholder
acknowledges and agrees that any subsequent proxy given by the Shareholder with
respect to any shares of the capital stock of the Company Owned by the
Shareholder as of the record date for any meeting of the shareholders of the
Company (however called) or any written action by consent of shareholders of the
Company shall apply only to such of those shares that are not Excess Shares as
of such record date. Each Shareholder further acknowledges and agrees that any
statement in any such subsequent proxy to the effect that such proxy revokes any
proxy or proxies previously given shall not apply to revoke this Proxy given
with respect to Excess Shares, as this Proxy is irrevocable (during the term of
the Voting Agreement). If a Shareholder is not the "beneficial owner" of the
Excess Shares (within the meaning of Rule 13d-3 under the Securities Exchange
Act of 1934), the Shareholder acknowledges and agrees that this Proxy is
authorized by the beneficial owner of such Excess Shares.
During the term of the Voting Agreement, the attorneys and proxies named
above will be empowered, and may exercise this Proxy, to vote any Excess Shares
Owned by any of the undersigned, at any meeting of the shareholders of the
Company (however called) and in connection with any written action by consent of
shareholders of the Company, in accordance with the recommendation of the
Company's Board of Directors. For example and not by way of limitation, if
during the term of the Voting Agreement the Company's Board of Directors
recommends that shareholders of the Company vote in favor of a certain proposal
to be presented at any such meeting and against a certain other proposal to be
presented at such meeting, then the attorneys and proxies named above will be
empowered, and may exercise this Proxy, to vote any Excess Shares Owned by any
of the undersigned in favor of the former proposal and against the latter
proposal. If no Shareholder is the record owner of any such Excess Shares, the
Shareholders hereby authorize the attorneys and proxies named above to instruct
each record owner of the Excess Shares to vote the Excess Shares, at any meeting
of the shareholders of the
Company (however called) and in connection with any written action by consent of
shareholders of the Company, in accordance with the recommendation of the
Company's Board of Directors.
Each Shareholder may vote all shares of the capital stock of the Company
Owned by the Shareholder that are not Excess Shares, and the attorneys and
proxies named above may not exercise this Proxy with respect to any such shares
that are not Excess Shares.
This Proxy shall be binding upon the heirs, estate, executors, personal
representatives, successors and assigns of each Shareholder.
Any term or provision of this Proxy 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, each Shareholder agrees 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 Proxy shall be enforceable as so modified. In the event such court does not
exercise the power granted to it in the prior sentence, each Shareholder agrees
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.
Dated: December 8, 2008
THE D3 FAMILY FUND, L.P.
By: Xxxxxxxxxx Investment Management
Company, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx, President
THE D3 FAMILY BULLDOG FUND, L.P.
By: Xxxxxxxxxx Investment Management
Company, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx Xxxxx
-----------------------------------------------
Xxxxxxxxxx, President
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THE D3 FAMILY CANADIAN FUND, L.P.
By: Xxxxxxxxxx Investment Management
Company, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx, President
THE DIII OFFSHORE FUND, L.P.
By: Xxxxxxxxxx Investment Management
Offshore, Inc.
Its: General Partner
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx, President
XXXXXXXXXX INVESTMENT MANAGEMENT COMPANY, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx, President
XXXXXXXXXX INVESTMENT MANAGEMENT OFFSHORE, INC.
By: /s/ Xxxxx Xxxxxxxxxx
-----------------------------------------------
Xxxxx Xxxxxxxxxx, President
/s/ Xxxxx Xxxxxxxxxx
--------------------------------------------------
Xxxxx Xxxxxxxxxx
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