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Exhibit 10.1
STOCKHOLDERS’ AGREEMENT
This STOCKHOLDERS’ AGREEMENT (this "Agreement"), is dated
as of September 1, 2008, by and between Teradyne, Inc., a
Massachusetts corporation ("Parent") and the stockholders listed on
the signature pages hereto (each a "Stockholder" and collectively,
the "Stockholders").
W I T N E S S E T H:
WHEREAS, Parent, Turin Acquisition Corp., a Delaware corporation
and a direct wholly owned subsidiary of Parent ("Merger Sub"), and
Eagle Test Systems, Inc., a Delaware corporation (the "Company"),
are entering into an Agreement and Plan of Merger, dated as of the
date hereof (as it may be amended from time to time in accordance
with its terms, the "Merger Agreement"), providing for, among other
things, the merger of Merger Sub with and into the Company with the
Company surviving the merger as a wholly owned subsidiary of
Parent, in each case, on the terms and subject to the conditions
set forth in therein (capitalized terms used herein and not
otherwise defined shall have the meanings ascribed to such terms in
the Merger Agreement); and
WHEREAS, as of the date hereof, each Stockholder is the record
and beneficial owner of the number of shares of Common Stock set
forth, and in the manner reflected, on Attachment A hereto
(the "Owned Shares"); and
WHEREAS, as a condition to each of Parent and Merger Sub’s
willingness to enter into and perform their respective obligations
under the Merger Agreement, Parent and Merger Sub have required
that each Stockholder agree, and each Stockholder has agreed,
(i) to vote all of such Stockholder’s Owned Shares as
well as any shares of Common Stock acquired by such Stockholder
after the execution of this Agreement (all of which, after so
acquired, shall constitute "Owned Shares"), whether upon the
exercise of options, conversion of convertible securities or
otherwise, and any other voting securities of the Company (whether
acquired heretofore or hereafter) that are beneficially owned by
such Stockholder or over which such Stockholder has, directly or
indirectly, the right to vote (collectively, the "Voting Shares")
in favor of any proposal in furtherance of the Merger Agreement or
the transactions contemplated thereby, including the Merger, and
(ii) to take the other actions described herein; and
WHEREAS, each Stockholder desires to express its support for the
Merger Agreement and the transactions contemplated thereby,
including the Merger, by executing this Agreement; and
NOW, THEREFORE, in consideration of the foregoing and for other
good and valuable consideration given to each party hereto, the
receipt of which is hereby acknowledged, the parties agree as
follows:
1. Agreement to Vote; Irrevocable Proxy .
1.1 Agreement to Vote . Each Stockholder hereby agrees
that, during the time this Agreement is in effect, at any meeting
of the stockholders of the Company, however called, or any
adjournment or postponement thereof, such Stockholder shall be
present (in person or by
proxy) and vote (or cause to be voted) all of its
Voting Shares (a) in favor of the adoption of the Merger
Agreement and (b) against any Alternative Proposal and against
any action or agreement that would delay, prevent, impede or impair
the ability of Parent and Merger Sub to complete the Merger or the
ability of the Company to consummate the Merger or the transactions
contemplated by the Merger Agreement.
1.2 Irrevocable Proxy . Solely with respect to the
matters described in Section 1.1, for so long as this
Agreement has not terminated in accordance with Section 5.1,
each Stockholder hereby irrevocably appoints Parent (or any nominee
of Parent) as its attorney and proxy with full power of
substitution and resubstitution, to the full extent of such
Stockholder’s voting rights with respect to such
Stockholder’s Voting Shares (which proxy is irrevocable and
which appointment is coupled with an interest, including for
purposes of Section 212 of the Delaware General Corporation
Law) to vote all such Stockholder’s Voting Shares solely on
the matters described in Section 1.1, and in accordance
therewith. Each Stockholder hereby revokes any proxies previously
granted that would otherwise conflict with the proxy contemplated
pursuant to this Section 1.2 and agrees to execute any further
agreement or form reasonably necessary or appropriate to confirm
and effectuate the grant of the proxy contained herein. Such proxy
shall automatically terminate upon the valid termination of this
Agreement in accordance with Section 5.1.
2. Representations and Warranties of Stockholders . Each
Stockholder hereby represents and warrants to Parent as
follows:
2.1 Due Organization . Such Stockholder, if a corporation
or other entity, has been duly organized, is validly existing and
is in good standing under the laws of the state of its formation or
organization.
2.2 Power; Due Authorization; Binding Agreement . Such
Stockholder has full legal capacity, power and authority to execute
and deliver this Agreement, to perform its obligations hereunder
and to consummate the transactions contemplated hereby. This
Agreement has been duly and validly executed and delivered by such
Stockholder and constitutes a valid and binding agreement of such
Stockholder, enforceable against Stockholder in accordance with its
terms, except to the extent that enforceability may be subject to
the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting or relating
to the enforcement of creditors rights generally and to general
principles of equity.
2.3 Ownership of Shares . On the date hereof, the Owned
Shares set forth opposite such Stockholder’s name on
Attachment A hereto are owned of record or beneficially by
such Stockholder in the manner reflected thereon and include all of
the Voting Shares owned of record or beneficially by such
Stockholder, free and clear of any claims, liens, encumbrances and
security interests, except (if applicable) as set forth on
Attachment A hereto, which encumbrances or other items do
not affect in any respect the ability of such Stockholder to
perform such Stockholder’s obligations hereunder. As of the
date hereof such Stockholder has, and at all times prior to the
valid termination of this Agreement in accordance with
Section 5.1 such Stockholder will have (except as otherwise
permitted by this Agreement), sole voting power (to the extent such
securities have voting power) and sole dispositive power with
respect to all of the Owned Shares, except as otherwise reflected
on Attachment A .
2
2.4 No Conflicts . The execution and
delivery of this Agreement by such Stockholder does not, and the
performance of the terms of this Agreement by such Stockholder will
not, (a) require such Stockholder to obtain the consent or
approval of, or make any filing with or notification to, any
governmental or regulatory authority, domestic or foreign,
(b) require the consent or approval of any other person or
entity pursuant to any agreement, obligation or instrument binding
on such Stockholder or its properties and assets, (c) conflict
with or violate any organizational document or law, rule,
regulation, order, judgment or decree applicable to such
Stockholder or pursuant to which any of its or its
affiliates’ respective properties or assets are bound or
(d) violate any other agreement to which such Stockholder or
any of its affiliates is a party including, without limitation, any
voting agreement, stockholders agreement, irrevocable proxy or
voting trust. The Voting Shares are not, with respect to the voting
or transfer thereof, subject to any other agreement, including any
voting agreement, stockholders agreement, irrevocable proxy or
voting trust.
2.5 Acknowledgment . Such Stockholder understands and
acknowledges that each of Parent and Merger Sub is entering into
the Merger Agreement in reliance upon such Stockholder’s
execution, delivery and performance of this Agreement.
3. Representations and Warranties of Parent . Parent
hereby represents and warrants to the Stockholders as follows:
3.1 Power; Due Authorization; Binding Agreement . Parent
is a corporation duly organized, validly existing and in good
standing under the laws of the Commonwealth of Massachusetts.
Parent has full corporate power and authority to execute and
deliver this Agreement, to perform its obligations hereunder and to
consummate the transactions contemplated hereby. The execution and
delivery of this Agreement and the consummation by Parent of the
transactions contemplated hereby have been duly and validly
authorized by all necessary corporate action on the part of Parent,
and no other proceedings on the part of Parent are necessary to
authorize this Agreement or to consummate the transactions
contemplated hereby. This Agreement has been duly and validly
executed and delivered by Parent and constitutes a valid and
binding agreement of Parent, except that enforceability may be
subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or other similar laws affecting or relating
to the enforcement of creditors rights generally and to general
principles of equity.
3.2 No Conflicts . The execution and delivery of this
Agreement by Parent does not, and the performance of the terms of
this Agreement by Parent will not, (a) require Parent to
obtain the consent or approval of, or make any filing with or
notification to, any governmental or regulatory authority, domestic
or foreign or (b) conflict with or violate any organizational
document or law, rul
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