MICRION SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (the "Agreement") is entered into as
of December 3, 1998, between the undersigned _______________, a shareholder (the
"Shareholder") of Micrion Corporation, a Massachusetts corporation ("Micrion"),
and FEI Company, an Oregon corporation (the "Company").
WHEREAS, contemporaneously with the execution and delivery of this
Agreement, Micrion , the Company and MC Acquisition Corporation are entering
into an Agreement and Plan of Merger, dated as of the date hereof (the "Merger
Agreement"), pursuant to which Micrion will merge with MC Acquisition
Corporation, upon the terms and conditions set forth therein;
WHEREAS, the Shareholder desires that the merger occur and that the
Shareholder receive the Merger Consideration, as defined in the Merger
Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt,
sufficiency and adequacy of which are hereby acknowledged, the parties hereto
agree as follows:
1. Representations of Shareholder. The Shareholder represents that he
(a) is the holder of ______ shares of the Common Stock of Micrion (the
Shareholder's "Shares"), (b) does not beneficially own (as such term is defined
in the Securities Exchange Act of 1934, as amended (the "1934 Act")) any shares
of the Common Stock of Micrion other than his Shares, but excluding any shares
of the Common Stock which he has the right to obtain upon the exercise of stock
options outstanding on the date hereof and (c) has full power and authority to
make, enter into and carry out the terms of this Agreement.
2. Agreement to Vote Shares. The Shareholder agrees to vote his Shares
and any New Shares (as defined in Section 6 hereof), and shall cause any holder
of record of his Shares or New Shares to vote (a) to approve and adopt the
Merger Agreement and (b) against any proposal that would compete with or serve
to interfere or inhibit the timely consummation of the Merger. The Shareholder
agrees to deliver to Xxxxxxx X. Xxxxxxx, Chairman of the Board of the Company,
immediately upon request therefor a proxy substantially in the form attached
hereto as Exhibit A, which proxy shall be irrevocable to the extent permitted by
law (except that such proxy shall be deemed automatically revoked upon a
termination of this Agreement in accordance with Section 10(d)), with the total
number of his Shares and any New Shares correctly indicated thereon.
3. No Voting Trusts. After the date hereof, the Shareholder agrees
that he will not, nor will he permit any entity under his control to, deposit
any of his Shares in a
voting trust or subject any of his Shares to any arrangement with respect to the
voting of such Shares other than agreements entered into with the Company.
4. No Proxy Solicitations. The Shareholder agrees that he will not,
nor will he permit any entity under his control to, (a) solicit proxies or
become a "participant" in a "solicitation" (as such terms are defined in
Regulation 14A under the 0000 Xxx) in opposition to or competition with the
consummation of the Merger or otherwise encourage or assist any party in taking
or planning any action which would compete with or otherwise serve to interfere
with or inhibit the timely consummation of the Merger in accordance with the
terms of the Merger Agreement, (b) directly or indirectly encourage, initiate or
cooperate in a shareholders' vote or action by consent of Micrion 's
shareholders in opposition to or in competition with the consummation of the
Merger or (c) become a member of a "group" (as such term is used in Section
13(d) of the 0000 Xxx) with respect to any voting securities of Micrion for the
purpose of opposing or competing with the consummation of the Merger.
5. Transfer and Encumbrance. Except for gifts given without
consideration where the recipient thereof agrees to execute a voting agreement
in form and substance similar to this Agreement, on or after the date hereof,
the Shareholder agrees not to voluntarily transfer, sell, offer, pledge or
otherwise dispose of or encumber any of his Shares or New Shares prior to the
earlier of (a) the effective date of the Merger or (b) the date this Agreement
shall be terminated in accordance with its terms.
6. Additional Purchases. The Shareholder agrees that he will not
purchase or otherwise acquire beneficial ownership of any shares of the Common
Stock after the execution of this Agreement ("New Shares"), nor will he
voluntarily acquire the right to vote or share in the voting of any shares of
the Common Stock other than the Shares, unless he agrees to deliver to the
Company immediately after such purchase or acquisition a proxy substantially in
the form attached hereto as Exhibit A with respect to such New Shares, which
proxy shall be irrevocable to the extent permitted by law (except that such
proxy shall be deemed automatically revoked upon a termination of this Agreement
in accordance with Section 10(d)). The Shareholder also agrees that any New
Shares acquired or purchased by him shall be subject to the terms of this
Agreement to the same extent as if they constituted Shares.
7. Specific Performance. Each party hereto severally acknowledges that
it will be impossible to measure in money the damage to the other party if a
party hereto fails to comply with any of the obligations imposed by this
Agreement, that every such obligation is material and that, in the event of any
such failure, the other party will not have an adequate remedy at law or
damages. Accordingly, each party hereto severally agrees that injunctive relief
or other equitable remedy, in addition to remedies at law or damages, is the
appropriate remedy for any such failure and will not oppose the granting of such
relief on the basis that the other party has an adequate remedy at law. Each
party hereto severally agrees that it will not seek, and agrees to waive any
requirement for, the securing or posting of a bond in connection with any other
party's seeking or obtaining such equitable relief.
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8. Successors and Assigns. This Agreement shall be binding upon and
inure to the benefit of the parties hereto and their respective successors and
assigns and shall not be assignable without the written consent of all other
parties hereto.
9. Entire Agreement. This Agreement contains the entire agreement
between the parties hereto with respect to the subject matter hereof, and this
Agreement supersedes all prior agreements, written or oral, between the parties
hereto with respect to the subject matter hereof. This Agreement may not be
amended, supplemented or modified, and no provisions hereof may be modified or
waived, except by an instrument in writing signed by all the parties hereto. No
waiver of any provisions hereof by any party shall be deemed a waiver of any
other provisions hereof by any such party, nor shall any such waiver be deemed a
continuing waiver of any provision hereof by such party.
10. Miscellaneous.
(a) This Agreement shall be deemed a contract made under, and for
all purposes shall be construed in accordance with, the laws of the State
of Oregon.
(b) If any provision of this Agreement or the application of such
provision to any person or circumstances shall be held invalid by a court
of competent jurisdiction, the remainder of the provision held invalid and
the application of such provision to persons or circumstances, other than
the party as to which it is held invalid, shall not be affected.
(c) This Agreement may be executed in one or more counterparts,
each of which shall be deemed to be an original but all of which together
shall constitute one and the same instrument.
(d) This Agreement shall terminate upon the earliest to occur of
(i) the consummation of the Merger or (ii) termination of the Merger
Agreement.
(e) All Section headings herein are for convenience of reference
only and are not part of this Agreement, and no construction or reference
shall be derived therefrom.
(f) The obligations of the Shareholder set forth in this
Agreement shall not be effective or binding upon him until after such time
as the Merger Agreement is executed and delivered by the Company, Micrion
and MC Acquisition Corporation. The parties agree that there is not and has
not been any other agreement, arrangement or understanding between the
parties hereto with respect to the matters set forth herein.
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IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Agreement as of the date first written above.
FEI COMPANY
By:
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Name:
Title:
SHAREHOLDER:
By:
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Name:
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