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EXHIBIT 2
FORM OF STOCKHOLDER VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of June 27, 2000, by and
between CFM Technologies, Inc., a Pennsylvania corporation ("CFM"), and Xxxx
Xxxxxxx, an individual ("Stockholder").
RECITALS
X. Xxxxxxx Technology, Inc., a Delaware corporation ("Company"), M2C
Acquisition Corporation, a Delaware corporation and a wholly owned subsidiary of
the Company ("Merger Sub"), and CFM are entering into an Agreement and Plan of
Merger of even date herewith (the "Merger Agreement") which provides (subject to
the conditions set forth therein) for the merger of Merger Sub into CFM (the
"Merger").
B. In order to induce CFM to enter into the Merger Agreement,
Stockholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock,
$.001 par value, of the Company.
(b) "EXPIRATION DATE" shall mean the earlier of (i) the
date upon which the Merger Agreement is validly terminated or (ii) the date upon
which the Merger becomes effective.
(c) Stockholder shall be deemed to "OWN" or to have
acquired "Ownership" of a security if Stockholder: (i) is the record owner of
such security; or (ii) is the "beneficial owner" (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of such security.
(d) "PERSON" shall mean any (i) individual, (ii)
corporation, limited liability company, partnership or other entity, or (iii)
governmental authority.
(e) "SUBJECT SECURITIES" shall mean the securities of the
Company (including all shares of Company Common Stock and options, warrants and
other rights to acquire shares of Company Common Stock) Owned by Stockholder as
of the date of this Agreement, all of which are accurately listed on the
signature page hereof.
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(f) A Person shall be deemed to have a effected a
"TRANSFER" of a security if such Person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with respect to, transfers or disposes of
such security or any interest in such security; or (ii) enters into an agreement
or commitment contemplating the possible sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not cause or permit any
Transfer of any of the Subject Securities to be effected unless each Person to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a counterpart of
this Voting Agreement and a proxy in the form attached hereto as Exhibit A (with
such modifications as CFM may reasonably request); and (b) agreed to hold such
Subject Securities (or interest in such Subject Securities) subject to all of
the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) except pursuant to this Voting Agreement, no proxy
is granted, and no voting agreement or similar agreement is entered into, with
respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date:
(a) at any meeting of stockholders of the Company, however
called, Stockholder shall (unless otherwise directed in writing by Parent) cause
the Subject Securities that are Owned by Stockholder as of the record date fixed
for such meeting to be voted in favor of the Parent Corporation Proposal (as
defined in the Merger Agreement) (the "Parent Corporation Proposal"); and
(b) in the event written consents are solicited or
otherwise sought from stockholders of the Company with respect to the Parent
Corporation Proposal, Stockholder shall (unless otherwise directed in writing by
Parent) cause to be executed, with respect to the Subject Securities that are
Owned by Stockholder as of the record date fixed for the consent to the proposed
action, a written consent or written consents to such proposed action.
This Voting Agreement is intended to bind Stockholder only with respect
to the specific matters set forth herein, and shall not prohibit Stockholder
from acting in accordance with his fiduciary duties as an officer or director of
the Company. Stockholder will retain at all times the right to vote the
Stockholder's Subject Securities, in Stockholder's sole discretion, on all
matters
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other than those set forth in this Section 3.1 which are at any time or from
time to time presented to the Company's stockholders generally.
3.2 PROXY.
Contemporaneously with the execution of this Voting Agreement,
Stockholder shall deliver to Parent a proxy in the form attached to this Voting
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy");
and (ii) Stockholder shall cause to be delivered to Parent an additional proxy
(in the form attached hereto as Exhibit A) executed on behalf of the record
owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act
of 1934), but not of record, by Stockholder.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters rights and any similar rights relating to the Merger or any related
transaction that Stockholder or any other Person may have by virtue of the
ownership of any outstanding shares of Company Common Stock or other security
Owned by Stockholder.
SECTION 5. NO SOLICITATION
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that his representatives do not,
directly or indirectly: (i) solicit, initiate, encourage or induce the making,
submission or announcement of any Acquisition Proposal (as defined in the Merger
Agreement) or take any action that could reasonably be expected to lead to an
Acquisition Proposal; (ii) furnish any information regarding the Company or any
direct or indirect subsidiary of the Company to any Person in connection with or
in response to an Acquisition Proposal or potential Acquisition Proposal; or
(iii) engage in discussions with any Person with respect to any Acquisition
Proposal. Stockholder shall immediately cease and discontinue, and Stockholder
shall ensure that his representatives immediately cease and discontinue, any
existing discussions with any Person that relate to any Acquisition Proposal.
The restrictions and covenants in this Section 5 shall apply to Stockholder only
in his capacity as a stockholder and not to Stockholder in his capacity as a
director or officer of the Company.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to CFM as follows:
6.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
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debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
6.2 NO CONFLICTS OR CONSENTS
(a) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this Voting
Agreement and the Proxy by Stockholder will not: (i) conflict with or violate
any law, rule, regulation, order, decree or judgment applicable to Stockholder
or by which he or any of his properties is or may be bound or affected; or (ii)
result in or constitute (with or without notice or lapse of time) any breach of
or default under, or give to any other Person (with or without notice or lapse
of time) any right of termination, amendment, acceleration or cancellation of,
or result (with or without notice or lapse of time) in the creation of any
encumbrance or restriction on any of the Subject Securities pursuant to any
contract to which Stockholder is a party or by which Stockholder or any of his
affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this Voting
Agreement and the Proxy by Stockholder will not, require any consent or approval
of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any encumbrances or restrictions)
the number of outstanding shares of Company Common Stock set forth under the
heading "Shares Held of Record" on the signature page hereof; (b) Stockholder
holds (free and clear of any encumbrances or restrictions) the options, warrants
and other rights to acquire shares of Company Common Stock set forth under the
heading "Shares Subject to Options and Other Rights" on the signature page
hereof; (c) Stockholder Owns the additional securities of the Company set forth
under the heading "Additional Securities Beneficially Owned" on the signature
page hereof; and (d) Stockholder does not directly or indirectly own any shares
of capital stock or other securities of the Company, or any option, warrant or
other right to acquire (by purchase, conversion or otherwise) any shares of
capital stock or other securities of the Company, other than the shares and
options, warrants and other rights set forth on the signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
consummation of the Merger as if made on that date.
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Coor's expense) execute and deliver, or
cause to be executed and delivered, such additional transfers, assignments,
endorsements, proxies, consents and other instruments, and shall (at Coor's
expense) take such further actions, as CFM may reasonably request for the
purpose of carrying out and furthering the intent of this Voting Agreement.
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7.2 LEGEND. Prior to any transfer by Stockholder of the Subject
Securities, Stockholder shall submit to the Company's transfer agent each
certificate evidencing any Subject Securities Owned by Stockholder and instruct
that such certificate be imprinted with a legend in the following form: THE
SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
TERMS AND PROVISIONS OF THE VOTING AGREEMENT DATED AS OF JUNE 27, 2000, BETWEEN
THE CFM TECHNOLOGIES, INC. AND XXXX XXXXXXX, AS IT MAY BE AMENDED, A COPY OF
WHICH IS ON FILE AT THE PRINCIPAL EXECUTIVE OFFICES OF THE ISSUER.
SECTION 8. MISCELLANEOUS
8.1 EXPENSES. All costs and expenses incurred in connection with the
transactions contemplated by this Voting Agreement shall be paid by the party
incurring such costs and expenses.
8.2 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received (a) upon receipt when
delivered by hand, or (b) two business days after sent by courier or express
delivery service or by facsimile, provided that in each case the notice or other
communication is sent to the address or facsimile telephone number set forth
beneath the name of such party below (or to such other address or facsimile
telephone number as such party shall have specified in a written notice given to
the other party):
IF TO STOCKHOLDER:
(At the address set forth below Stockholder's signature on the
signature page hereof)
IF TO CFM:
CFM Technologies, Inc.
000 Xxxxxxxx Xxxxxxxxx
Xxxxx, XX 00000
Attention: Xxxxxxx X. Xxxxx, Controller
Facsimile: (000) 000-0000
With a copy to:
Xxxxxxx Xxxxx Xxxxxxx & Xxxxxxxxx, LLP
0000 Xxxxxx Xxxxxx, 00xx Xxxxx
Xxxxxxxxxxxx, XX 00000-0000
Attention: Xxxxxx X. Xxxxx, Esq.
8.3 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such
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jurisdiction, be deemed amended to conform to applicable laws so as to be valid
and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
Voting Agreement. Each provision of this Voting Agreement is separable from
every other provision of this Voting Agreement, and each part of each provision
of this Voting Agreement is separable from every other part of such provision.
8.4 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
8.5 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Stockholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of CFM and its successors and assigns.
Without limiting any of the restrictions set forth in Section 2 or elsewhere in
this Voting Agreement, this Voting Agreement shall be binding upon any Person to
whom any Subject Securities are transferred. Nothing in this Voting Agreement is
intended to confer on any Person (other than Parent and its successors and
assigns) any rights or remedies of any nature.
8.6 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in this
Voting Agreement or in the Proxy, CFM shall be entitled (in addition to any
other remedy that may be available to it, including monetary damages) to seek
and obtain (a) a decree or order of specific performance to enforce the
observance and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Stockholder further agrees that
neither CFM nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 8.6, and Stockholder irrevocably waives
any right he may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
8.7 NON-EXCLUSIVITY. The rights and remedies of CFM under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of CFM under this Voting Agreement, and
the obligations and liabilities of Stockholder under this Voting Agreement, are
in addition to their respective rights, remedies, obligations and liabilities
under
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common law requirements and under all applicable statutes, rules and
regulations. Nothing in this Voting Agreement shall limit any of Stockholder's
obligations, or the rights or remedies of CFM, under any Affiliate Agreement
between CFM and Stockholder; and nothing in any such Affiliate Agreement shall
limit any of Stockholder's obligations, or any of the rights or remedies of CFM,
under this Voting Agreement.
8.8 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed
in accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to
this Voting Agreement or the Proxy or the enforcement of any provision of this
Voting Agreement or the Proxy may be brought or otherwise commenced in any state
or federal court located in the County of New Castle, Delaware. Stockholder: (i)
expressly and irrevocably consents and submits to the jurisdiction of each state
and federal court located in the County of New Castle, Delaware (and each
appellate court located in the State of Delaware), in connection with any such
legal proceeding; (ii) agrees that service of any process, summons, notice or
document by U.S. mail addressed to him at the address set forth in Section 8.2
shall constitute effective service of such process, summons, notice or document
for purposes of any such legal proceeding; (iii) agrees that each state and
federal court located in the County of New Castle, Delaware, shall be deemed to
be a convenient forum; and (iv) agrees not to assert (by way of motion, as a
defense or otherwise), in any such legal proceeding commenced in any state or
federal court located in the County of New Castle, Delaware, any claim that
Stockholder is not subject personally to the jurisdiction of such court, that
such legal proceeding has been brought in an inconvenient forum, that the venue
of such proceeding is improper or that this Voting Agreement or the subject
matter of this Voting Agreement may not be enforced in or by such court. Nothing
contained in this Section 8.8(b) shall be deemed to limit or otherwise affect
the right of CFM to commence any legal proceeding or otherwise proceed against
Stockholder in any other forum or jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT
OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE
PROXY.
8.9 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
8.10 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
8.11 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought
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by one party against the other party, the prevailing party shall be entitled to
recover reasonable attorneys' fees, costs and disbursements (in addition to any
other relief to which the prevailing party may be entitled).
8.12 WAIVER. No failure on the part of CFM to exercise any power, right,
privilege or remedy under this Voting Agreement, and no delay on the part of CFM
in exercising any power, right, privilege or remedy under this Voting Agreement,
shall operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or remedy shall
preclude any other or further exercise thereof or of any other power, right,
privilege or remedy. CFM shall not be deemed to have waived any claim available
to CFM arising out of this Voting Agreement, or any power, right, privilege or
remedy of CFM under this Voting Agreement, unless the waiver of such claim,
power, right, privilege or remedy is expressly set forth in a written instrument
duly executed and delivered on behalf of CFM; and any such waiver shall not be
applicable or have any effect except in the specific instance in which it is
given.
8.13 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the
context requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Voting Agreement or the
Proxy.
(c) As used in this Voting Agreement, the words "include"
and "including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Voting Agreement to "Sections" and "Exhibits" are intended to refer to Sections
of this Voting Agreement and Exhibits to this Voting Agreement.
(Remainder of Page Intentionally Left Blank)
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IN WITNESS WHEREOF, CFM and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
CFM TECHNOLOGIES, INC.
By: /s/ XXXXX XXXXXXX
---------------------------------
Name:
Title:
STOCKHOLDER
By: /s/ XXXX XXXXXXX
---------------------------------
Xxxx Xxxxxxx,
Chairman and Chief Executive
Officer
Address:
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Facsimile:
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SHARES HELD OF RECORD: 3,535,516
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SHARES SUBJECT TO OPTIONS AND
OTHER RIGHTS: 316,500
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ADDITIONAL SECURITIES BENEFICIALLY OWNED:
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Exhibit A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Xxxxxxx Technology, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes Xxxxx X. Xxxxxxx and CFM Technologies, Inc., a
Commonwealth of Pennsylvania corporation ("CFM"), and each of them, the
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
(i) all outstanding shares of capital stock of the Company owned of record by
the undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date hereof and
which are Subject Securities (as defined in the Voting Agreement between the
undersigned and CFM of even date herewith). (The shares of the capital stock of
the Company referred to in clauses (i) and (ii) of the immediately preceding
sentence are collectively referred to as the "Shares.") Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares are hereby revoked, and the undersigned agrees that no subsequent proxies
will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between CFM
and the undersigned (the "Voting Agreement"), and is granted in consideration of
CFM entering into the Agreement and Plan of Merger, dated as of the date hereof,
among Company, M2C Acquisition Corporation, a Delaware corporation and a wholly
owned subsidiary of the Company, and the CFM (the "Merger Agreement").
The attorneys and proxies named above will be empowered, and may
exercise this proxy, to vote the Shares at any time until the earlier to occur
of the valid termination of the Merger Agreement or the effective time of the
merger contemplated thereby (the "Merger") at any meeting of the stockholders of
the Company, however called, or in connection with any solicitation of written
consents from stockholders of the Company, in favor of the Parent Corporation
Proposal, as defined in the Merger Agreement.
The undersigned may vote the Shares on all other matters. This proxy
shall be binding upon the heirs, estate, executors, personal representatives,
successors and assigns of the undersigned (including any transferee of any of
the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
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proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
This proxy shall terminate upon the earlier of the valid termination of
the Merger Agreement or the effective time of the Merger.
Dated: _______________, 2000.
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(Signature)
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(Print Name)
NUMBER OF SHARES OF COMMON STOCK OF
THE COMPANY OWNED OF RECORD AS OF
THE DATE OF THIS PROXY:
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