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Exhibit
10.4
TENDER AND SUPPORT
AGREEMENT
TENDER AND SUPPORT AGREEMENT
(this “ Agreement ”), dated as of July 9,
2008, by and among GSI Group Inc., a New Brunswick corporation
(“ Parent ”), Eagle Acquisition Corporation, a
Delaware corporation and wholly owned subsidiary of Parent (“
Purchaser ”), and each of the individuals or entities
listed on a signature page hereto (each, a “
Stockholder ”).
WHEREAS, each Stockholder
beneficially owns the shares of common stock, par value $0.001 per
share, of Excel Technology Inc., a Delaware corporation (the
“ Company ”), set forth opposite such
Stockholder’s name on Schedule A (all such shares set forth
on Schedule A, together with any shares of Company Common Stock
that are hereafter issued to or otherwise acquired or beneficially
owned by any Stockholder, including pursuant to the exercise of
Options by such Stockholders or the removal of restrictions on
Restricted Stock held by such Stockholders being referred to herein
as the “ Subject Shares ”);
WHEREAS, as a condition to
their willingness to enter into the Agreement and Plan of Merger
(the “ Merger Agreement ”) dated as of the date
hereof, among Parent, Purchaser and the Company, Parent and
Purchaser have required that each Stockholder, and in order to
induce Parent and Purchaser to enter into the Merger Agreement each
Stockholder (in such Stockholder’s capacity as a holder of
the Subject Shares) has agreed to, enter into this Agreement;
and
WHEREAS, capitalized terms
used but not otherwise defined herein shall have the respective
meanings ascribed to such terms in the Merger Agreement;
NOW, THEREFORE, in
consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below, and for other
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, do hereby agree as follows:
ARTICLE I
A GREEMENT
TO T ENDER
Section 1.1.
Agreement to Tender . Each Stockholder shall validly tender
or cause to be validly tendered in the Offer all of such
Stockholder’s Subject Shares pursuant to and in accordance
with the terms of the Offer. As promptly as practicable, but in any
event no later than ten Business Days after the commencement of the
Offer, each Stockholder shall (i) deliver to the depositary
designated in the Offer (the “ Depositary ”)
(A) a letter of transmittal with respect to its Subject Shares
complying with the instructions set forth therein and the terms of
the Offer, (B) a certificate or certificates representing such
Subject Shares or an “agent’s message” (or such
other evidence, if any, of transfer as the Depositary may
reasonably request) in the case of a book-entry transfer of any
uncertificated Subject Shares and (C) all other documents or
instruments required
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to be delivered by other stockholders of
the Company pursuant to the terms of the Offer, and/or
(ii) instruct its broker or such other Person that is the
holder of record of any Subject Shares beneficially owned by such
Stockholder to tender such Subject Shares pursuant to and in
accordance with the terms of the Offer. Each Stockholder agrees
that, once its Subject Shares are tendered, such Stockholder
(i) shall promptly notify Parent that such Subject Shares have
been tendered and (ii) will not withdraw any of such Subject
Shares from the Offer, unless and until (A) the Offer shall
have expired or been terminated by Purchaser in accordance with the
terms of the Merger Agreement or (B) this Agreement shall have
been terminated in accordance with its terms. The obligations of
each Stockholder under this Section 1.1 are several and not
joint with any other Stockholder.
ARTICLE II
R
EPRESENTATIONS AND W
ARRANTIES OF THE S
TOCKHOLDERS
Each Stockholder represents
and warrants to Parent and Purchaser as to itself, severally and
not jointly, as follows:
Section 2.1.
Authorization; Binding Agreement . Such Stockholder has full
power and authority to execute, deliver and perform this
Agreement.
Section 2.2.
Non-Contravention . The execution, delivery and performance
by such Stockholder of this Agreement and the consummation by such
Stockholder of the transactions contemplated hereby do not and will
not (i) violate any Law applicable to such Stockholder,
(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 such Stockholder is entitled under, any Law or 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, in the case of each of clauses
(i) through (iii) such as would impair or adversely
affect such Stockholder’s ability to perform its obligations
hereunder.
Section 2.3.
Ownership of Subject Shares; Total Shares . Such Stockholder
is the record or beneficial owner (as defined in Rule 13d-3
under the Exchange Act) of its Subject Shares and, as of the date
of Purchaser’s acceptance of the shares of Company Common
Stock in the Offer, such Subject Shares will be free and clear of
any Lien and any other limitation or restriction (including any
restriction on the right to vote or otherwise transfer such Subject
Shares), except as provided hereunder or pursuant to any applicable
restrictions on transfer under the Securities Act. The tender of
such Stockholder’s Subject Shares to Purchaser, and
Purchaser’s acceptance and payment for such Subject Shares,
pursuant to the terms of the Offer will effectively vest in
Purchaser good and marketable title to such Subject Shares. The
Subject Shares listed on Schedule A opposite such
Stockholder’s name constitute all of the shares of Company
Common Stock beneficially owed by such Stockholder as of the date
hereof.
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Section 2.4. Voting
Power . Such Stockholder has full voting power, and full power
of disposition, full power to issue instructions with respect to
the matters set forth herein and full power to agree to all of the
matters set forth in this Agreement, in each case with respect to
all of such Stockholder’s Subject Shares. None of such
Stockholder’s Subject Shares are subject to any voting trust
or other agreement or arrangement with respect to the voting of
such shares, except as provided hereunder.
Section 2.5. Absence
of Litigation . With respect to such Stockholder, as of the
date hereof, there is no action, suit, investigation or proceeding
pending against, or, to the knowledge of such Stockholder,
threatened against or affecting, such Stockholder or any of its
properties or assets (including such Stockholder’s Subject
Shares) that could reasonably be expected to impair the ability of
such Stockholder to perform its obligations hereunder or to
consummate the transactions contemplated hereby on a timely
basis.
Section 2.6.
Opportunity to Review; Reliance . Such Stockholder has had
the opportunity to review this Agreement and the Merger Agreement
with counsel of his or its own choosing. Such Stockholder
understands and acknowledges that Parent is entering into the
Merger Agreement in reliance upon such Stockholder’s
execution, delivery and performance of this Agreement.
Section 2.7.
Finders’ Fees . No investment banker, broker, finder
or other intermediary is entitled to a fee or commission from
Parent, Purchaser, the Company or the Surviving Corporation in
respect of this Agreement based upon any arrangement or agreement
made by or on behalf of such Stockholder in his capacity as
such.
ARTICLE III
A DDITIONAL C
OVENANTS OF THE S
TOCKHOLDERS
Each Stockholder hereby
covenants and agrees as to itself, severally and not jointly, as
follows:
Section 3.1. Voting
of Subject Shares . At every meeting of the stockholders of the
Company called, and at every adjournment or postponement thereof,
or as part of or in connection with any action by written consent
in lieu of meeting of stockholders of the Company, the Stockholders
shall, or shall cause the holder of record on any applicable record
date to, vote, or express consent or dissent with respect to, the
Subject Shares (to the extent that any of the Subject Shares are
not purchased in the Offer) (i) in favor of (A) approval
and adoption of the Merger Agreement and each of the other
transactions contemplated by the Merger Agreement, and
(B) approval of any proposal to adjourn or postpone the
meeting to a later date if there are not sufficient votes for the
approval and adoption of the Merger Agreement on the date on which
such meeting is held, and (ii) against (A) any agreement
or arrangement related to or in furtherance of any Acquisition
Proposal, (B) any liquidation, dissolution, recapitalization,
extraordinary dividend or other significant corporate
reorganization of the Company or any of its Subsidiaries,
(C) any other transaction the consummation of which would
reasonably be expected to
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impede, interfere with, prevent or
materially delay the Offer or the Merger or that would reasonably
be expected to dilute materially the benefits to Parent of the
transactions contemplated by the Merger Agreement, or (D) any
action, proposal, transaction or agreement that would reasonably be
expected to result in (x) a breach of any covenant,
representation or warranty or other obligation or agreement of the
Company under the Merger Agreement or of such Stockholder under
this Agreement or (y) the failure of any Offer Condition to be
satisfied, and (iii) in favor of any other matter necessary
for consummation of the transactions contemplated by the Merger
Agreement, which is considered at any such meeting of stockholders,
and in connection therewith to execute any documents reasonably
requested by Parent that are necessary or appropriate in order to
effectuate the foregoing.
Section 3.2.
Irrevocable Proxies . Each Stockholder, revoking (or causing
to be revoked) any proxies that he or it has heretofore granted,
hereby irrevocably appoints Parent as attorney-in-fact and proxy
for and on behalf of such Stockholder, for and in the name, place
and stead of such Stockholder, to: (i) attend any and all
stockholder meetings of the Company with respect to the matters set
forth in Section 3.1; (ii) vote, express consent or
dissent or issue instructions to the record holder to vote, express
consent or dissent with respect to such Stockholder’s Subject
Shares in accordance with the provisions of Section 3.1 at any such
meeting; a
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