Exhibit 2.3
SHAREHOLDER
AGREEMENT
THIS SHAREHOLDER AGREEMENT (this
“ Agreement ”) is entered into as of
January 24, 2006, by and between Nanometrics Incorporated, a
California corporation (the “ Parent ”), and
(the “ Shareholder ”) of Accent Optical
Technologies, Inc., a Delaware corporation (the “
Company ”).
W I T N E S S E T
H:
WHEREAS, Parent, Alloy Merger
Corporation, a Delaware corporation and a wholly owned subsidiary
of Parent (“ Merger Sub ”), the Company and
Sanford S. Wadler (the “ Stockholder Agent
”) are entering into an Agreement and Plan of Merger and
Reorganization (the “ Reorganization Agreement
”) concurrently herewith pursuant to which Merger Sub will
merge with and into the Company (the “ Merger
”), whereupon (A) the Company will become a wholly owned
subsidiary of Parent, and (B) all outstanding shares of
capital stock of the Company (the “ Company Capital
Stock ”) will be converted into the right to receive a
number of shares of common stock of Parent as set forth
therein.
WHEREAS, for all purposes of and
under this Agreement capitalized terms used but not otherwise
defined herein shall have the respective meanings ascribed thereto
in the Reorganization Agreement.
WHEREAS, the Shareholder is the
beneficial owner (as determined in accordance with Rule 13d-3
under the Securities Exchange Act of 1934, as amended) of the
shares of Company Capital Stock and options to acquire shares of
Company Capital Stock, each as set forth on the signature page of
this Agreement.
WHEREAS, in consideration of the
execution of the Reorganization Agreement by the Company, the
Shareholder is hereby agreeing to limit such Shareholder’s
dispositions of the Parent Common Stock that such Shareholder will
receive as consideration of such Shareholder’s interests in
Company Capital Stock or upon exercise of options, so as to
facilitate orderly market for the Parent’s common stock after
the consummation of the Merger.
NOW, THEREFORE, in consideration of
the premises and the covenants and agreements set forth in the
Reorganization Agreement and in this Agreement, and other good and
valuable consideration, the receipt and sufficiency of which are
hereby acknowledged and accepted, the parties hereto hereby agree
as follows:
1. Certain Definitions .
Capitalized terms used but not otherwise defined herein shall have
the respective meanings ascribed to them in the Reorganization
Agreement. For purposes of this Agreement, the following terms
shall have the following respective meanings:
(a) “ Expiration Date
” shall mean the earlier to occur of (i) such date and
time as the Reorganization Agreement shall have been validly
terminated in accordance with its terms and conditions or
(ii) the second anniversary of such date and time as the
Merger shall become effective in accordance with its terms and
conditions.
(b) “ Person ”
shall mean any individual, any corporation, limited liability
company, general or limited partnership, business trust,
unincorporated association or other business organization or
entity, or any governmental body or authority.
(c) “ Shares ”
shall mean (i) all voting securities of Parent beneficially
owned by the Shareholder as of the effective date of the Merger and
(ii) all voting securities of Parent which the Shareholder
purchases or acquires beneficial ownership of after the date of
this Agreement and prior to the Expiration Date, including, without
limitation, any shares issued or issuable upon the conversion,
exercise or exchange, as the case may
be, of any shares held by the
Shareholder which are convertible into, or exercisable or
exchangeable for, voting securities of Parent. Notwithstanding the
foregoing, however, shares shall not include any voting securities
of Parent acquired by Shareholder in open market purchases on the
Nasdaq National Market after the date of this Agreement.
(d) “ Transfer ”
shall mean a direct or indirect: (i) sale, pledge,
encumbrance, grant of an option with respect to, transfer or
disposal of a security or any interest in such security, or
(ii) entrance into an agreement or commitment providing for
the sale of, pledge of, encumbrance of, grant of an option with
respect to, transfer of or disposition of such security or any
interest therein.
(e) “ Unrestricted
Shares ” shall mean (a) initially one twenty fourth
(1/24 th ) of the Shares and on the
first day of each subsequent calendar month after the Effective
Time an additional one twenty fourth (1/24 th ) of the Shares; minus
(b) the number of Shares previously Transferred in accordance
with Section 2(b)(i), (ii), (v) or (vi) of this
Agreement (all as properly adjusted to reflect any Shares
Transferred pursuant to Sections 2(b)(iii) and 2(b)(iv) of this
Agreement).
2. Transfer of Shares
.
(a) No Transfer of Shares other
than Pursuant to this Agreement . The Shareholder hereby agrees
that, at all times during the period commencing with the date of
this Agreement until the Expiration Date, the Shareholder shall not
cause or permit any Transfer of any of the Shares (or any
securities convertible into or exercisable or exchangeable for
Shares), or any interest in the foregoing, to be effected unless in
accordance with the terms and conditions of this
Agreement.
(b) Orderly Disposition of
Shares . Notwithstanding the foregoing, the Shareholder may
Transfer Shares held by the Shareholder after the Effective Time:
(i) in transactions effected on a national securities exchange
or through the Nasdaq Stock Market so long as the number of Shares
so Transferred in any month does not exceed the lesser of
(x) the number of Unrestricted Shares and (y) one eighth
(1/8 th ) of the aggregate number of
Shares and options to acquire Shares received in the Merger by such
Shareholder in exchange for such Shareholder’s Company
Capital Stock and options to acquire Company Capital Stock,
(ii) any of the Shares in connection with the exercise
(cashless or otherwise) of options to acquire shares of the Parent
common stock in an amount that is sufficient to satisfy the payment
of any transaction costs and any tax liability incurred by that
Shareholder in connection with that exercise, (iii) to a
family member or trust for estate planning purposes, provided the
transferee has agreed in writing to be bound by the terms of this
Agreement (and any Shares Transferred by all such Persons shall be
aggregated with Transfers by such Shareholder for purposes of this
Section) and to hold such Shares subject to all the terms and
provisions of this Agreement, (iv) to a lender pursuant to a
margin loan or other secured lending obligation provided the lender
has agreed in writing to be bound by the terms of this Agreement
(and any Shares Transferred by such lender shall be aggregated with
Transfers by such Shareholder for purposes of this Section),
(v) pursuant to, and in accordance with, the terms of a
Shareholder’s 10b5-1 plan or arrangement with the Parent, if
any, with terms and conditions consistent with the provisions of
this Agreement, including the limitations set forth in this Section
(and any Shares Transferred to third parties under such 10b5-1 Plan
shall be aggregated with Transfers by such Shareholder for purposes
of this Section) or (vi) in a transaction approved in writing
by the Parent.
3. Representations, Warranties
and Covenants of the Shareholder . The Shareholder hereby
represents, warrants and covenants to Parent as follows:
(a) The Shareholder is the
beneficial or record owner of, or exercises voting power over, the
Shares. The Shares constitute the Shareholder’s entire
interest in the outstanding shares of voting securities of the
Company and the Shareholder does not hold any other outstanding
shares of Company Capital Stock or rights to acquire Company
Capital Stock. No Person not a signatory to this Agreement has a
beneficial interest in or a right to acquire or vote any of the
Shares (other than, (i) pursuant to a Voting Agreement dated
as of January , 2006 with Parent;
(ii) if the Shareholder is a partnership, the rights and
interest of persons and entities that own partnership interests in
the Shareholder under the partnership agreement
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