Exhibit 2.1
VOTING AGREEMENT AND PROXY
This VOTING AGREEMENT AND PROXY (this “
Agreement ”) is dated as of August 16, 2004 by and
between Entegris, Inc., a Minnesota corporation (“
Shareholder ”) and Applied Materials, Inc., a Delaware
corporation (“ Purchaser ”).
RECITALS:
A. Concurrently herewith, Purchaser
and Metron Technology N.V., a corporation organized under the laws
of The Netherlands (the “ Company ”) have
entered into a Stock and Asset Purchase Agreement (as amended from
time to time, the “ Purchase Agreement ”).
Shareholder acknowledges receipt of a copy of the Purchase
Agreement. Unless otherwise defined herein, capitalized terms used
herein have the meanings ascribed to such terms in the Purchase
Agreement.
B. The Purchase Agreement provides
for, among other matters the sale by the Company to Purchaser of
the Purchased Assets which includes the Business which operates
through the ownership of all of the issued and outstanding shares
of capital stock of the Purchased Companies.
C. Following the completion of the
Transaction, the Company intends to wind up its affairs, satisfy
all valid claims of creditors and others having claims against the
Company and distribute any remaining assets to its
shareholders.
D. As of the date hereof,
Shareholder is the record and beneficial owner of that number of
common shares, par value 0.44 Euro per share (calculated as
permitted by Section 2:67c of the Dutch Civil Code), of the Company
set forth the signature page hereto (such shares, together with any
other capital stock of the Company acquired by Shareholder after
the date hereof, being collectively referred to herein as the
“ Shares ”).
E. The Company Shareholder Approval
(as defined in the Purchase Agreement) is a condition to the
consummation of the Transaction.
F. As an inducement to Purchaser to
enter into the Purchase Agreement, Purchaser and Shareholder have
agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the premises
and the mutual covenants and agreements hereinafter contained, the
parties hereby agree as follows:
Section 1. No Shop
(a) General. So long as this
Agreement remains in effect, Shareholder shall not, nor shall it
authorize or permit any of Shareholder’s Affiliates, any of
their respective directors, officers or employees or any investment
banker, financial advisor, attorney, accountant or other advisor,
agent or representative (collectively, “
Representatives ”) retained by Shareholder to,
directly or indirectly through another Person, (i) solicit,
initiate or knowingly encourage, or take any other action intended
to, or which could reasonably be expected to facilitate, any
inquiries or the making of any proposal that constitutes or is
reasonably likely to lead to a Company Takeover Proposal (as
defined in the Purchase Agreement)or (ii) participate in any
discussions or negotiations regarding, or furnish to any person any
information, or otherwise cooperate in any way with, any Company
Takeover Proposal.
(b) Notification. So long as
this Agreement remains in effect, Shareholder shall promptly (but
in any event within 24 hours of receipt thereof) advise Purchaser
orally and in writing of any Company Takeover Proposal or request
for information received by Shareholder that would reasonably be
expected to lead to or contemplates any Company Takeover Proposal,
or any inquiry that would reasonably be expected to lead to any
Company Takeover Proposal, the terms and conditions of any such
request, Company Takeover Proposal or inquiry (including any
changes thereto) and the identity of the person making any such
request, Company Takeover Proposal or inquiry, with a copy of any
written Company
Takeover Proposal or inquiry. Shareholder shall
(i) keep Purchaser informed of the status and details (including
any change to the terms thereof) of any such request, Company
Takeover Proposal or inquiry and (ii) provide to Purchaser as soon
as practicable after receipt or delivery thereof with copies of all
correspondence and other written material (or a written summary of
any oral request. Company Takeover Proposal or inquiry) sent or
provided to Shareholder from any person that describes any of the
terms or conditions of any such request, Company Takeover Proposal
or inquiry. Shareholder shall be deemed to have satisfied the
notice requirement of this Section 1(b) if notices containing the
information described herein are delivered by the Company in
accordance with Section 6.6(c) of the Purchase
Agreement.
(c) Ongoing Discussions.
Shareholder shall (and shall cause its Representatives to)
immediately cease and cause to be terminated any existing
discussions or negotiations with any Person conducted heretofore
with respect to any Company Takeover Proposal and request the
prompt return or destruction of all confidential information
previously furnished by Shareholder.
(d) Fiduciary Duties. This
Section 1 shall not apply to any action taken by Shareholder
in Shareholder’s the capacity as either an officer or
director of the Company and any actions taken by Shareholder in
such capacity shall be governed solely by the Purchase
Agreement.
Section 2. Agreement to Vote,
Restrictions on Voting and Dispositions, Irrevocable
Proxy.
(a) Agreement to Vote. At
every meeting of the shareholders of the Company called with
respect to any of the following, and at every adjournment thereof,
and in every action or approval by written consent of the
shareholders of the Company in lieu of such a meeting with respect
to any of the following, Shareholder shall vote or cause to be
voted the Shares, and shall execute and deliver written consents
and otherwise exercise all voting and other rights of Shareholder
with respect to the Shares (i) in favor of adoption and approval of
(x) the Purchase Agreement, the Transaction and the other matters
contemplated by the Purchase Agreement, (y) any matter in
furtherance of the Transaction and any of the other transactions
contemplated by the Purchase Agreement and this Agreement, and (z)
the waiver of any notice to Shareholder that may have been or may
be required relating to the Transaction or any of the other
transactions contemplated by the Purchase Agreement or this
Agreement, and (ii) against any (x) Company Takeover Proposal made
by any Person other than the Purchaser, without regard to any
recommendation from the Company Boards to shareholders concerning
such Company Takeover Proposal, and without regard to the terms of
such Company Takeover Proposal, (y) any agreement, amendment of any
agreement (including the Company’s articles of association or
other organizational documents), or any other action that is
intended or could reasonably be expected to prevent, impede,
interfere with, delay, postpone, or discourage the Transaction and
any of the other transactions contemplated by the Purchase
Agreement or this Agreement, and (z) any action, agreement,
transaction or proposal that would result in a material breach of
any representation, warranty, covenant, agreement or other
obligation of the Company, the Purchased Companies or their
Subsidiaries in the Purchase Agreement. Any such vote shall be cast
(or consent shall be given) by Shareholder in accordance with the
procedures relating thereto so as to ensure that it is duly
counted, including for purposes of determining that a quorum is
present and for the purposes of recording such vote (or
consent).
(b) Restrictions on
Dispositions. Shareholder hereby agrees that, without the prior
written consent of Purchaser (except as may be specifically
required by Order or applicable Law), Shareholder shall not,
directly or indirectly, sell, offer to sell, give, pledge,
encumber, assign, grant any option for the sale of or otherwise
transfer or dispose of, or enter into any agreement, arrangement or
understanding to sell, any Shares (collectively, “
Transfer ”) other than to its Affiliates, provided
that as a condition to such Transfer, such Affiliate shall execute
an agreement that is identical to this Agreement (except to reflect
the change of the Shareholder).
(c) Irrevocable Proxy.
Concurrently with the execution of this Agreement, Shareholder
shall deliver to Purchaser a duly executed proxy in the form
attached hereto as Exhibit A (the “ Proxy
”) with respect to each meeting of Company shareholders, such
Proxy to cover the total number of Shares in respect of which
Shareholder is entitled to vote at any such meeting. Upon the
execution of this Agreement by Shareholder, Shareholder hereby
revokes any and all prior proxies given by Shareholder with respect
to the Shares and agrees not to grant any subsequent proxies with
respect to the Shares (other than the Proxy) until after the
Expiration.
(d) Inconsistent Agreements.
Shareholder hereby agrees that, it shall not enter into any
agreement, contract or understanding with any Person prior to the
Expiration directly or indirectly to vote, grant a proxy or power
of attorney or give instructions with respect to the voting of the
Shares in any manner which is inconsistent with this
Agreement.
(e) Permitted Transfers. Section
2(b) shall not prohibit a transfer of Shares by Shareholder if
Shareholder is an individual upon the death of Shareholder;
provided , however , that a transfer referred to in
this sentence shall be permitted only if, as a precondition to such
transfer, the transferee agrees in a writing, reasonably
satisfactory in form and substance to Purchaser, to be bound by all
of the terms of this Agreement.
Section 3. Non-disclosure.
From and after the date hereof, Shareholder shall not and shall
cause its Representatives not to, directly or indirectly, disclose,
reveal, divulge or communicate to any Person other than authorized
officers, directors and employees of Purchaser or the Company or
use or otherwise exploit for his or its own benefit or for the
benefit of anyone other than the Purchaser or the Company, any
Confidential Information (as defined below). Shareholder and its
Representatives shall not have any obligation to keep confidential
any Confidential Information if, and to the extent, disclosure
thereof is specifically required by law; provided ,
however , Shareholder shall provide Purchaser with prompt
notice of such requirement prior to making any disclosure so that
Purchaser may seek an appropriate protective order. For purposes of
this Section 3(c) , “ Confidential Information
” shall mean any confidential information (whether or not in
writing) with respect to the Purchase Agreement, any of the
transactions contemplated thereby, and the Company, the Purchased
Companies or their Subsidiaries, including, methods of operation,
customers, customer lists, products, prices, fees, cost,
technology, inventions, trade secrets, know-how, software,
marketing methods, plans, personnel, suppliers, competitors,
markets, other specialized information or proprietary matters
(including, without limitation, information that was or will be
developed, created, discovered by or on behalf of the Company, the
Purchased Companies or their Subsidiaries or will become known by,
or was or is conveyed to the Company, the Purchased Companies or
their Subsidiaries) or information of any third party which the
Company, the Purchased Companies or their Subsidiaries is under an
obligation to keep confidential that is maintained by the Company
as confidential. “ Confidential Information ”
does not include, and there shall be no obligation hereunder with
respect to, information that (i) is generally available to the
public on the date of this Agreement or (ii) becomes generally
available to the public other than as a result of a disclosure not
otherwise permissible hereunder.
Section 4. Representations, and
Warranties and Covenants of Shareholder. Shareholder represents
and warrants to Purchaser as follows: (i) Shareholder has all
necessary power and authority to execute and deliver this Agreement
and to perform Shareholder’s obligations hereunder; (ii) this
Agreement has been duly executed and delivered by Shareholder and
the execution, delivery and performance of this Agreement by
Shareholder and the consummation of the transactions contemplated
hereby have been duly authorized by all necessary corporate action
on the part of Shareholder; (iii) assuming the due authorization,
execut
