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EXHIBIT NUMBER 2.2
STOCKHOLDERS' AGREEMENT
THIS STOCKHOLDERS' AGREEMENT (the "Agreement") is dated as of
June 10, 1999, by and among Ion Beam Applications s.a. ("Parent"), a corporation
organized under the laws of the Kingdom of Belgium, Ion Beam Applications G.P.
("GP"), a Delaware general partnership which is controlled by Parent, and IBA
Acquisition Corporation ("Acquisition"), a Delaware corporation which is
wholly-owned by GP, and the stockholders listed on Schedule I hereto (each, a
"Stockholder," and collectively, the "Stockholders") of SteriGenics
International, Inc. (the "Company"), a Delaware corporation . Capitalized terms
used and not defined herein have the respective meanings assigned to them in the
Merger Agreement (defined herein).
WHEREAS, concurrently herewith, Parent, GP, Acquisition and
the Company are entering into a Merger Agreement, the form of which is appended
hereto as Exhibit A (as such agreement may hereafter be amended from time to
time, the "Merger Agreement"), pursuant to which the Offer will be made by
Acquisition for the issued and outstanding Shares of the Company, and
Acquisition will be merged with and into the Company (the "Merger");
WHEREAS, each Stockholder Beneficially Owns (defined herein)
the number of shares, par value $0.01 per share, of common stock (the "Common
Stock") of the Company (the "the Shares") set forth opposite each Stockholder's
name on Schedule I hereto;
WHEREAS, as an inducement and a condition to entering into the
Merger Agreement, Parent and Acquisition have required that each Stockholder
agree, and each of each Stockholder has agreed, to enter into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the
mutual premises, representations, warranties, covenants and agreements contained
herein, the parties hereby agree as follows:
SECTION 1. AGREEMENT TO VOTE; IRREVOCABLE PROXY.
(a) Each Stockholder hereby agrees that during the period
commencing as of the date of this Agreement and continuing until the first to
occur of the Closing Time or 45 days after the termination of the Merger
Agreement in accordance with its terms, at any meeting of the holders of the
Shares, however called, or in connection with any written consent of the holders
of Shares, each Stockholder shall vote (or cause to be voted) the Shares held of
record or Beneficially Owned (as defined herein) by each Stockholder, whether
owned on the date hereof or hereafter acquired, (i) in favor of approval of the
Merger Agreement, all transactions contemplated thereby, and any actions
required in furtherance thereof and hereof (including
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election of such directors of the Company as Parent is entitled to designate
pursuant to the Merger Agreement); (ii) against any action or agreement that is
intended, or could reasonably be expected, to impede, interfere with, or prevent
the Offer or the Merger or result in a breach in any respect of any covenant,
representation or warranty or any other obligation or agreement of the Company
or any of its subsidiaries under the Merger Agreement or this Agreement; and
(iii) except as specifically requested in writing in advance by Parent , against
the following actions (other than the Merger and the transactions contemplated
by the Merger Agreement and this Agreement): (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any of its subsidiaries or affiliates; (B) a sale,
lease, transfer or disposition by the Company or any of its subsidiaries of any
assets outside the ordinary course of business or any assets which in the
aggregate are material to the Company and its subsidiaries taken as a whole, or
a reorganization, recapitalization, dissolution or liquidation of the Company or
any of its subsidiaries or affiliates; (C)(1) any change in the present
capitalization of the Company or any amendment of the Company's charter or
By-Laws; (2) any other material change in the Company's or any of its
subsidiaries' corporate structure or business; or (3) any other action that, in
the case of each of the matters referred to in clauses (C)(1), (2) or (3), is
intended, or could reasonably be expected, to impede, interfere with, delay,
postpone or materially adversely affect the Offer, the Merger or the
transactions contemplated by this Agreement or the Merger Agreement. None of the
Stockholders shall enter into any agreement or understanding with any Person (as
defined herein) the effect of which would be inconsistent with or violative of
the provisions and agreements contained in Section 1 or 2 hereof.
(b) By his execution hereof and in order to secure his
obligations hereunder, each Stockholder hereby grants to, and appoints Xxxxxx
Xxxxxx and Xxxx Xxxxxx, in their respective capacities as officers of Parent,
and any individual who shall hereafter succeed to any such office of Parent, and
any other designee of Parent, and each of them individually, each Stockholder's
true and lawful irrevocable (until the earlier of the Closing Time or 45 days
after the termination of the Merger Agreement in accordance with its terms (the
"Termination Date")) proxy and attorney-in-fact (with full power of
substitution) to vote the Shares, or grant a consent or approval in respect of
such Shares, as indicated in Section 1(a) above; effective immediately upon the
execution of this Agreement. Each Stockholder intends this proxy to be
irrevocable (from the date of this Agreement until the Termination Date) and
coupled with an interest and will take such further action and execute such
other instruments as may be necessary to effectuate the intent of this proxy and
hereby represents that any proxy heretofore given in respect of his Shares is
not irrevocable, and hereby revokes any proxy previously granted by each
Stockholder with respect to the Shares. Each Stockholder understands and
acknowledges that Parent and Acquisition are entering into the Merger Agreement
in reliance on such Stockholder's execution and delivery of this irrevocable
proxy. Each Stockholder hereby affirms that this irrevocable proxy is given in
connection with the execution of this Agreement and the Merger Agreement, and
further affirms that this irrevocable proxy is coupled with an interest in this
Agreement for the term stated herein and may under no circumstances be revoked.
Each Stockholder hereby ratifies and confirms all that this irrevocable proxy
may lawfully do or cause
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to be done by virtue hereof. This proxy is executed and intended to be
irrevocable in accordance with the provisions of Section 212(e) of the Delaware
General Corporation Law. This proxy shall terminate automatically on the
Termination Date.
SECTION 2. OTHER COVENANTS, REPRESENTATIONS AND WARRANTIES.
Each Stockholder hereby represents, warrants and covenants to
Parent and Acquisition as of the date hereof and as of the Closing Time as
follows:
(a) Ownership of Shares. Each Stockholder is the record and
Beneficial Owner of the number of Shares set forth opposite each Stockholder's
name on Schedule I hereto. On the date hereof, the Shares set forth opposite
each Stockholder's name on Schedule I hereto constitute all of the Shares owned
of record or Beneficially Owned by each Stockholder. Each Stockholder owns such
Shares free and clear of all liens, claims, charges, security interests,
mortgages or other encumbrances, and such Shares are subject to no rights of
first refusal, put rights, other rights to purchase or encumber such Shares, or
to any agreements other than this Agreement as to the encumbrance or disposition
of such Shares. Such Shares are duly and validly issued, fully paid and
non-assessable. Each Stockholder has sole voting power and sole power to issue
instructions with respect to the matters set forth in Section 1 hereof, sole
power of disposition, sole power of conversion, sole power to demand appraisal
rights and sole power to agree to all of the matters set forth in this
Agreement, in each case with respect to all of the Shares set forth opposite
each Stockholder's name on Schedule I hereto, with no limitations,
qualifications or restrictions on such rights.
(b) Power; Binding Agreement. Each Stockholder has the legal
capacity, power and authority to enter into and perform all of such
Stockholder's obligations under this Agreement. The execution, delivery and
performance of this Agreement by each Stockholder will not violate any other
agreement to which each Stockholder is a party including, without limitation,
any voting agreement, shareholder agreement or voting trust. This Agreement has
been duly and validly executed and delivered by each Stockholder and constitutes
a valid and binding agreement of each Stockholder, enforceable against each
Stockholder in accordance with its terms, except as such enforceability may be
limited by any applicable bankruptcy, insolvency, reorganization, moratorium or
other similar laws affecting the enforcement of creditors' rights generally, and
except as the availability of equitable remedies may be limited by the
application of general principles of equity (regardless of whether such
equitable principles are applied in a proceeding at law or in equity). There is
no beneficiary or holder of a voting trust certificate or other interest of any
trust of which each Stockholder is trustee who is not a party to this Agreement
and whose consent is required for the execution and delivery of this Agreement
or the consummation by each Stockholder of the transactions contemplated hereby.
If any Stockholder is married and such Stockholder's Shares constitute community
property, this Agreement has been duly authorized, executed and delivered by,
and constitutes a valid and binding agreement of, such Stockholder's spouse,
enforceable against such person in accordance with its terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium or other similar laws affecting the enforcement of
creditors' rights
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generally, and except as the availability of equitable remedies may be limited
by the application of general principles of equity (regardless of whether such
equitable principles are applied in a proceeding at law or in equity).
(c) No Conflicts. (i) Except for filings, permits,
authorizations, consents and approvals as may be required under and other
applicable requirements of the HSR Act, no filing with, and no permit,
authorization, consent or approval of, any state or federal public body or
authority is necessary for the execution of this Agreement by each Stockholder
and the consummation by each Stockholder of the transactions contemplated hereby
and (ii) none of the execution or delivery of this Agreement by each
Stockholder, the consummation by each Stockholder of the transactions
contemplated hereby or compliance by each Stockholder with any of the provisions
hereof shall (A) result in a violation or breach of, or constitute (with or
without notice or lapse of time or both) a default (or give rise to any third
party right of termination, cancellation, material modification or acceleration)
under any of the terms, conditions or provisions of any note, bond, mortgage,
indenture, license, contract, commitment, arrangement, understanding, agreement
or other instrument or obligation of any kind to which each Stockholder is a
party or by which each Stockholder or any of such Stockholder's properties or
assets may be bound, or (B) violate any order, writ, injunction, decree,
judgment, order, statute, rule or regulation applicable to each Stockholder or
any of each Stockholder's properties or assets. This Agreement supersedes all
prior agreements to which each Stockholder is a party with respect to such
Stockholder's Shares.
(d) No Finder's Fees. No broker, investment banker, financial
adviser or other person is entitled to any broker's, finder's, financial
adviser's or other similar fee or commission in connection with the transactions
contemplated by the Merger Agreement based upon arrangements made by or on
behalf of any Stockholder.
(e) Other Potential Acquirers. Each Stockholder (i) shall
immediately cease any existing discussions or negotiations, if any, with any
parties conducted heretofore with respect to any acquisition of all or any
material portion of the assets of, or any equity interest in, the Company or any
of its subsidiaries or any business combination with the Company or any of its
subsidiaries, in his or her capacity as such, and (ii) from and after the date
hereof until termination of the Merger Agreement in accordance with its terms,
shall not, in its or his capacity as a stockholder of the Company, directly or
indirectly, initiate, solicit or knowingly encourage (including by way of
furnishing non-public information or assistance), or take any other action to
facilitate knowingly, any inquiries or the making of any proposal that
constitutes, or may reasonably be expected to lead to, any such transaction or
acquisition, or agree to or endorse any such transaction or acquisition, or
authorize or permit any of each Stockholder's agents to do so, and each
Stockholder shall promptly notify Parent of any proposal and shall provide a
copy of any such written proposal and a summary of any oral proposal to Parent
immediately after receipt thereof (and shall specify the material terms and
conditions of such proposal and identify the person making such proposal) and
thereafter keep Parent advised of any development with respect thereto.
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(f) Tender of Shares; Restriction on Transfer, Proxies and
Non-Interference. Each of the Stockholders shall tender his or its Shares in the
Offer (as defined in the Merger Agreement) and shall not withdraw such Shares
therefrom unless and until the Merger Agreement is terminated in accordance with
its terms without such Shares being purchased by Acquisition pursuant to the
Offer. None of the Stockholders shall, directly or indirectly: (i) tender his or
its Shares in any other tender offer or exchange offer for the Shares; (ii)
except as contemplated by this Agreement or the Merger Agreement, otherwise
offer for sale, sell, transfer, tender, pledge, encumber, assign or otherwise
dispose of, or enter into any contract, option or other arrangement or
understanding with respect to or consent to the offer for sale, sale, transfer,
tender, pledge, encumbrance, assignment or other disposition of, any or all of
any such Stockholder's Shares or any interest therein; (iii) grant any proxies
or powers of attorney, deposit any Shares into a voting trust or enter into a
voting agreement with respect to any Shares; or (iv) take any action that would
make any representation or warranty of any such Stockholder contained herein
untrue or incorrect or have the effect of preventing or disabling such
Stockholder from performing such Stockholder's obligations under this Agreement.
(g) Reliance by Parent and Acquisition. Each Stockholder
understands and acknowledges that Parent and Acquisition are relying upon the
foregoing representations, warranties and covenants by such Stockholder, and on
each Stockholder's execution and delivery of this Agreement in entering into the
Merger Agreement.
SECTION 3. FURTHER ASSURANCES; MERGER AGREEMENT COMPLIANCE.
From time to time, at Parent's request and without further
consideration, each Stockholder agrees to execute and deliver such additional
documents and take all such further lawful action as may be necessary or
desirable to consummate and make effective, and to cause the Company to
consummate and make effective, in the most expeditious manner practicable, the
transactions contemplated by this Agreement.
SECTION 4. STOP TRANSFER; FORM OF LEGEND.
(a) Each Stockholder agrees with, and covenants to, Parent
that each Stockholder shall not request that the Company register the transfer
(book-entry or otherwise) of any certificate or uncertificated interest
representing any of each Stockholder's Shares, without the consent of the
Parent. In the event of a stock dividend or distribution, or any change in the
Shares by reason of any stock dividend, split-up, recapitalization, combination,
exchange of shares or the like, the term "Shares" shall be deemed to refer to
and include the Shares as well as all such stock dividends and distributions and
any shares into which or for which any or all of the Shares may be changed or
exchanged.
(b) If reasonably requested by Parent, all certificates
representing any of each Stockholder's Shares shall contain the following
legend:
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"The securities represented by this certificate are subject to
certain restrictions on transfer and other terms of a
Stockholders Agreement, dated as of June 10, 1999, among Ion Beam
Applications s.a., Ion Beam Applications G.P., IBA Acquisition
Corporation, and the parties listed on the signatures pages
thereto, a copy of which is on file in the principal office of
Ion Beam Applications s.a."
SECTION 5. THE OPTIONS.
Each Stockholder hereby agrees as follows:
(a) Grant of Options. Subject to the terms of this Section 5,
each Stockholder hereby grants to Parent (or its designee), effective upon the
execution hereof, an irrevocable option (each, an "Option") to purchase all
Shares held of record or Beneficially Owned by each such Stockholder at a
purchase price per Share equal to the greater of $27 or such higher price as may
be offered by Acquisition in the Offer (the "Option Price").
(b) Exercise of Options. Parent may exercise the Options, in
whole or in part, at any time and from time to time, following the occurrence of
a Purchase Event (as defined below); provided that any Options not theretofore
exercised shall expire and be of no further force and effect upon the earliest
to occur (the "Expiration Date") of (i) the Closing Time; (ii) forty-five days
after the first occurrence of a Purchase Event; or (iii) forty-five days after
the termination of the Merger Agreement in accordance with Section 9.1(c)(i),
(ii) or (iii) of the Merger Agreement; provided, however, that in the case of
clauses (ii) and (iii) above, the Expiration Date shall be extended for a period
not to extend beyond March 31, 2000 in the event that clearance under the
Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of 1976, as amended (the "HSR Act")
is required by Parent to acquire the Shares; provided, further that Parent is
using all reasonable efforts to obtain such clearance.
As used herein, a "Purchase Event" shall mean any of the following
events that occurs after the date hereof:
(i)Beneficial Ownership of more than 20% of the
outstanding capital stock of the Company (or rights to acquire such
capital stock of the Company) shall have been acquired by any Person or
"group" other than Parent, Acquisition, or any affiliate of any of
them;
(ii)the Company shall have entered into a definitive
agreement or approved or recommended any proposal which provides for
the acquisition of 20% or more of the outstanding capital stock of the
Company or substantially all of the assets of the Company by any Person
or group other than Parent, Acquisition, or an affiliate of any of
them;
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(iii) (A) the failure of the Company's stockholders
to approve the Merger Agreement or the transactions contemplated
thereby at a meeting called to consider such Merger Agreement, if such
meeting shall have been preceded by (x) the public announcement by any
Person or group (other than Parent, Acquisition or an affiliate of any
of them) of an offer or proposal to acquire, merge or consolidate with
the Company, or (y) the Board of Directors of the Company's publicly
withdrawing or modifying, or publicly announcing its intent to withdraw
or modify, its recommendation that the stockholders of the Company
approve the transactions contemplated by the Merger Agreement or (B)
the acceptance by the Company's Board of Directors of, or the public
recommendation by the Company's Board of Directors that the
stockholders of the Company accept, an offer or proposal from any
Person or group (other than Parent, Acquisition or an affiliate of any
of them), to acquire 20% or more of the outstanding capital stock of
the Company or for a merger or consolidation or any similar transaction
involving the Company;
(iv) the making of an Acquisition Proposal as
described in Section 5.3 of the Merger Agreement which would entitle
Parent or the Company to terminate the Merger Agreement pursuant to
Section 9.1 of the Merger Agreement; or
(v) any breach by the Stockholder of this Agreement.
(c) Notice of Exercise. To exercise an Option, Parent shall,
prior to the Expiration Date, give written notice to each Stockholder specifying
the location in Palo Alto, California and time for the closing (the "Option
Closing") of such purchase. The Option Closing shall be held on the date that is
no later than three business days after the date on which each of the conditions
set forth in Section 5(d) below has been satisfied or waived by Parent.
(d) Conditions to Option Closing Following Exercise of
Options. The occurrence of the Option Closing shall be subject to the
satisfaction of each of the following conditions:
(i) to the extent necessary, any applicable waiting
periods (and any extension thereof) under the HSR Act with respect to
the purchase of the Shares following the exercise of an Option shall
have expired or been terminated; and
(ii) no preliminary or permanent injunction or other
order, decree or ruling issued by any court of governmental or
regulatory authority, domestic or foreign, of competent jurisdiction
prohibiting the exercise of an Option or the delivery of Shares shall
be in effect.
The foregoing conditions may be waived solely by Parent,
provided that no Stockholder would incur any material liability as a result of
such waiver.
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(e) Transferability of Options. Parent may sell or transfer
the Options and any Shares acquired upon exercise of an Option at any time,
without the written consent of each Stockholder, to any affiliate or affiliates
of Parent, Acquisition or the an affiliate of any of them.
(f) Payment for and Delivery of Certificates. At the Option
Closing, (i) Parent (or its designee) shall pay, by check, an amount equal to
the product of (x) the Option Price and (y) the number of Shares owned by each
Stockholder; and (ii) each Stockholder shall deliver or shall cause to be
delivered to Parent a certificate or certificates evidencing each Stockholder's
Shares, and each Stockholder agrees that such Shares shall be transferred free
and clear of all liens. All such certificates representing Shares shall be duly
endorsed in blank, or with appropriate stock powers, duly executed in blank,
attached thereto, in proper form for transfer, with the signature of each
Stockholder thereon guaranteed, and with all applicable taxes paid or provided
for.
SECTION 6. TERMINATION.
Except as otherwise provided herein, the covenants and agreements
contained herein with respect to the Shares shall terminate upon the earliest of
(a) termination of the Merger Agreement in accordance with its terms, or (b) the
Effective Time.
SECTION 7. STOCKHOLDER CAPACITY.
No person executing this Agreement who is or becomes during the term
hereof a director or executive officer of the Company makes any agreement or
understanding herein in his or her capacity as such director or executive
officer. Each Stockholder signs solely in his capacity as the record and/or
beneficial owner of each Stockholder's Shares.
SECTION 8. WAIVER OF APPRAISAL AND DISSENTER'S RIGHTS.
Each Stockholder hereby irrevocably waives any rights of appraisal or
rights to dissent from the Merger that each Stockholder may have.
SECTION 9. MISCELLANEOUS.
(a) Certain Definitions. As used in this Agreement, the
following capitalized terms shall have the following meanings:
(i) "Beneficially Own" or "Beneficial Ownership" with
respect to any securities shall mean having "beneficial ownership" of
such securities (as determined pursuant to Rule 13d-3 under the
Exchange Act), including pursuant to any agreement, arrangement or
understanding, whether or not in writing. Without duplicative counting
of the same securities by the same holder, securities Beneficially
Owned by a Person shall include securities Beneficially Owned by all
other Persons with whom such Person would constitute a "group" as
within the meanings of Section 13(d)(3) of the Exchange Act.
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(ii) "Misstatement" means an untrue statement of a
material fact or an omission to state a material fact required to be
stated in a publicly-filed document necessary to make the statements in
such a document not misleading.
(iii) "Person" shall mean an individual, corporation,
partnership, joint venture, association, trust, unincorporated
organization or other entity.
(iv) "register," "registered," and "registration"
refer to a registration effected by preparing and filing with the SEC a
registration statement in compliance with the Securities Act and the
declaration or ordering by the SEC of effectiveness of such
registration statement.
(v) "subsidiary" or "subsidiaries" of Parent,
Acquisition, the Company or any other person means any corporation,
partnership, limited liability company, association, trust,
unincorporated association or other legal entity of which the Parent,
Acquisition, the Company or any such other person, as the case may be,
(either alone or through or together with any other subsidiary) owns,
directly or indirectly, 50% or more of the capital stock the holders of
which are generally entitled to vote for the election of the board of
directors or other governing body of such corporation or other legal
entity.
(b) Entire Agreement. This Agreement and the Merger Agreement
constitute the entire agreement between the parties with respect to the subject
matter hereof and supersede all other prior agreements and understandings, both
written and oral, between the parties with respect to the subject matter hereof.
(c) Certain Events. Each Stockholder agrees that this
Agreement and the obligations hereunder shall attach to each Stockholder's
Shares and shall be binding upon any person or entity to which legal or
beneficial ownership of such Shares shall pass, whether by operation of law or
otherwise, including, without limitation, each Stockholder's heirs, guardians,
administrators or successors. Notwithstanding any transfer of Shares, the
transferor shall remain liable for the performance of all obligations under this
Agreement of the transferor.
(d) Assignment. This Agreement may not be assigned by any
Stockholder without the consent of Parent. Parent may assign, in its sole
discretion, its rights and obligations hereunder to any direct or indirect
wholly-owned subsidiary of Parent, but no such assignment shall relieve Parent
of its obligations hereunder if such assignee does not perform such obligations.
(e) Amendments, Waivers, Etc. This Agreement may not be
amended, changed, supplemented, waived or otherwise modified or terminated, with
respect to each Stockholder, except upon the execution and delivery of a written
agreement executed by the relevant parties hereto; provided that Schedule I
hereto may be supplemented by Parent by adding the name and other relevant
information concerning any stockholder of the Company who agrees to be bound by
the terms of this Agreement (by executing a counterpart signature page hereof)
without the
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agreement of any other party hereto, and thereafter such added stockholder shall
be treated as a "Stockholder" for all purposes of this Agreement.
(f) Notices. All notices, requests, claims, demands and other
communications hereunder shall be in writing and shall be given (and shall be
deemed to have been duly received if so given) by hand delivery, telegram, telex
or telecopy, or by mail (registered or certified mail, postage prepaid, return
receipt requested) or by any courier service, such as Federal Express, providing
proof of delivery. All communications hereunder shall be addressed to the
respective parties at the following addresses:
If to each Stockholder: At the address set forth on Schedule I
hereto.
If to Parent or Acquisition: Ion Beam Applications s.a.
Xxxxxx xx Xxxxxxxxx, 0
X-0000 Xxxxxxx-xx-Xxxxx, Xxxxxxx
Telephone: 000-00-00-00-0000
Telecopier: 011-32-10-47-5810
Attention: Xx. Xxxxxx Xxxxxx, Chief
Executive Officer
with a copy to: Xxxxxx & Whitney LLP
000 Xxxx Xxxxxx
Xxx Xxxx, XX 00000
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
Attention: Xxxxx X. Xxxxx, Esq.
or to such other address as the person to whom notice is given may have
previously furnished to the others in writing in the manner set forth above.
(g) Severability. Whenever possible, each provision or portion
of any provision of this Agreement will be interpreted in such manner as to be
effective and valid under applicable law, but if any provision or portion of any
provision of this Agreement is held to be invalid, illegal or unenforceable in
any respect under any applicable law or rule in any jurisdiction, such
invalidity, illegality or unenforceability will not affect any other provision
or portion of any provision in such jurisdiction, and this Agreement will be
reformed, construed and enforced in such jurisdiction as if such invalid,
illegal or unenforceable provision or portion of any provision had never been
contained herein.
(h) Specific Performance. Each of the parties hereto
recognizes and acknowledges that a breach by it of any covenants or agreements
contained in this Agreement will cause the other party to sustain damages for
which it would not have an adequate remedy at law for money damages, and
therefore each of the parties hereto agrees that in the event of any
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such breach the aggrieved party shall be entitled to the remedy of specific
performance of such covenants and agreements and injunctive and other equitable
relief in addition to any other remedy to which it may be entitled, at law or in
equity.
(i) Remedies Cumulative. All rights, powers and remedies
provided under this Agreement or otherwise available in respect hereof at law or
in equity shall be cumulative and not alternative, and the exercise of any
thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.
(j) No Waiver. 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.
(k) No Third Party Beneficiaries. This Agreement is not
intended to be for the benefit of, and shall not be enforceable by, any person
or entity who or which is not a party hereto.
(l) Governing Law. This Agreement shall be governed and
construed in accordance with the laws of the State of Delaware, without giving
effect to the principles of conflicts of laws thereof.
(m) Descriptive Headings. The descriptive headings used herein
are inserted for convenience of reference only and are not intended to be part
of or to affect the meaning or interpretation of this Agreement.
(n) Counterparts. This Agreement may be executed in
counterparts, each of which shall be deemed to be an original, but all of which,
taken together, shall constitute one and the same Agreement.
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IN WITNESS WHEREOF, Parent and Acquisition have caused this
Agreement to be duly executed, and each Stockholder has duly executed this
Agreement, as of the day and year first above written.
ION BEAM APPLICATIONS S.A.
By: /s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
Chief Executive Officer
ION BEAM APPLICATIONS G.P.
By: ION BEAM APPLICATIONS S.A.,
Its Partner
By: /s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
Chief Executive Officer
IBA ACQUISITION CORP.
By: /s/ XXXXXX XXXXXX
Xxxxxx Xxxxxx
Stockholders' Agreement Signature Page
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STOCKHOLDERS:
Stockholders' Agreement Signature Page
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SCHEDULE I
NUMBER OF
NAME OF STOCKHOLDER ADDRESS SHARES OWNED
------------------- ------- ------------
The Xxxxxxx X. Xxxx, Xx. Revocable 000 Xxxxxxx Xxx, Xxxxx 0 20,962
Trust Dated December 17, 0000 Xxx Xxxxx, Xxxxxxxxxx 00000
The Xxxxxxx X. Xxxx, III Trust 000 Xxxxxxx Xxx, Xxxxx 0 81,050
Dated April 15, 0000 Xxx Xxxxx, Xxxxxxxxxx 00000
The Xxxxxxx Xxxxx Xxxx Trust 000 Xxxxxxx Xxx, Xxxxx 0 81,050
Dated April 15, 0000 Xxx Xxxxx, Xxxxxxxxxx 00000
The Xxxxxxxx X. Xxxx Trust 000 Xxxxxxx Xxx, Xxxxx 0 81,050
Dated April 15, 1983 Los Gatos, California 95032
KFFP II, L.P., a California 000 Xxxxxxx Xxx, Xxxxx 0 400,000
Limited Partnership Xxx Xxxxx, Xxxxxxxxxx 00000
KFFP III, L.P., a California 000 Xxxxxxx Xxx, Xxxxx 0 1,800,000
Limited Partnership Xxx Xxxxx, Xxxxxxxxxx 00000
The King Family Trust 000 Xxxxxxx Xxx, Xxxxx 0 30,200
Dated December 16, 0000 Xxx Xxxxx, Xxxxxxxxxx 00000
Stockholders' Agreement Schedule
15
EXHIBIT A
MERGER AGREEMENT