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Exhibit
10.1
EXECUTION
COPY
CREDENCE STOCKHOLDER
VOTING AGREEMENT
THIS STOCKHOLDER VOTING
AGREEMENT (this “ Agreement ”) is made and
entered into as of June 20, 2008, by and among LTX
Corporation, a Massachusetts corporation (“ LTX
”), Credence Systems Corporation, a Delaware corporation
(“ Credence ”) (only with respect to
Section 2(b) hereof), and the undersigned stockholder (“
Stockholder ”) of Credence.
RECITALS
A. Concurrently with the
execution and delivery hereof, LTX, Zoo Merger Corporation, a
Delaware corporation and a direct wholly owned subsidiary of LTX
(“ Merger Sub ”), and Credence are entering into
an Agreement and Plan of Merger of even date herewith (as it may be
amended or supplemented from time to time pursuant to the terms
thereof, the “ Merger Agreement ”), which
provides for the merger (the “ Merger ”) of
Merger Sub with and into Credence in accordance with its
terms.
B. Stockholder is the
beneficial owner (as defined in Rule 13d-3 under the Exchange Act)
of such number of shares of each class of capital stock of Credence
as is indicated below Stockholder’s signature to this
Agreement.
C. In consideration of the
execution and delivery of the Merger Agreement by LTX and Credence,
Stockholder desires to agree to vote the Shares (as defined herein)
over which Stockholder has voting power so as to facilitate the
consummation of the Merger.
NOW, THEREFORE, intending to
be legally bound, the parties hereto hereby agree as
follows:
1. Certain Definitions
.
(a) Each capitalized term
used but not otherwise defined herein shall have the meaning
ascribed to such term in the Merger Agreement. For all purposes of
and under this Agreement, the following terms shall have the
following respective meanings:
“ Affiliate
” means, with respect to any party hereto, any other Person
that controls, is controlled by, or is under common control with
such party.
“ Constructive
Sale ” means with respect to any security, a short sale
with respect to such security, entering into or acquiring an
offsetting derivative contract with respect to such security,
entering into or acquiring a futures or forward contract to deliver
such security or entering into any other hedging or other
derivative transaction that has the effect of either directly or
indirectly materially changing the economic benefits or risks of
ownership.
“ Shares ”
means (i) all shares of capital stock of Credence owned,
beneficially or of record, by Stockholder as of the date hereof,
and (ii) all additional shares of capital stock of Credence
acquired by Stockholder, beneficially or of record, during the
period commencing with the execution and delivery of this Agreement
and expiring on the Expiration Date (as such term is defined in
Section 9 below).
“ Transfer
” means, with respect to any security, the direct or indirect
assignment, sale, transfer, tender, exchange, pledge,
hypothecation, or the grant, creation or suffrage of a lien,
security interest or encumbrance in or upon, or the gift, placement
in trust, or the Constructive Sale or other disposition of such
security (including transfers by testamentary or intestate
succession or otherwise by operation of law) or any right, title or
interest therein (including, but not limited to, any right or power
to vote to which the holder thereof may be entitled, whether such
right or power is granted by proxy or otherwise), or the record or
beneficial ownership thereof, and each agreement, commitment, or
understanding, whether or not in writing, to effect any of the
foregoing.
2. Transfer and Voting
Restrictions .
(a) At all times during the
period commencing with the execution and delivery of this Agreement
and expiring on the Expiration Date, Stockholder shall not, except
(i) in connection with the Merger, (ii) pursuant to a
trading plan adopted pursuant to Rule 10b5-1 under the Exchange Act
prior to the date of this Agreement or (iii) as the result of
the death of Stockholder, Transfer any of the Shares, or enter into
an agreement, commitment or understanding with respect thereto,
unless each Person to which any of such Shares, or any interest in
any of such Shares, is or may be Transferred shall have executed a
voting agreement substantially identical to this
Agreement.
(b) Stockholder understands
and agrees that if Stockholder attempts to Transfer, vote or
provide any other person with the authority to vote any of the
Shares other than in compliance with this Agreement, Credence shall
not, and Stockholder hereby unconditionally and irrevocably
instructs Credence to not, (i) permit any such Transfer on its
books and records, (ii) issue a new certificate representing
any of the Shares or (iii) record such vote, in each case,
unless and until Stockholder shall have complied with the terms of
this Agreement.
(c) Except as otherwise
permitted by this Agreement or by order of a court of competent
jurisdiction, Stockholder will not commit any act that could
restrict or affect Stockholder’s legal power, authority or
right to vote all of the Shares then owned of record or
beneficially by Stockholder or otherwise prevent or disable
Stockholder from performing any of Stockholder’s obligations
under this Agreement. Without limiting the generality of the
foregoing, except for this Agreement and as otherwise permitted by
this Agreement, Stockholder will not enter into any voting
agreement with any person or entity with respect to any of the
Shares, grant any person or entity any proxy (revocable or
irrevocable) or power of attorney with respect to any of the
Shares, deposit any of the Shares in a voting trust or otherwise
enter into any agreement or arrangement with any person or entity
limiting or affecting Stockholder’s legal power, authority or
right to vote the Shares in favor of the approval of the Proposed
Transaction (as defined below).
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3. Agreement to Vote
Shares .
(a) Prior to the Expiration
Date, at every meeting of the stockholders of Credence called, and
at every adjournment or postponement thereof, and on every action
or approval by written consent of the stockholders of Credence,
Stockholder (in Stockholder’s capacity as such) shall appear
at the meeting or otherwise cause the Shares outstanding as of the
applicable record date to be present thereat for purposes of
establishing a quorum and, to the extent not voted by the persons
appointed as proxies pursuant to this Agreement, vote (i) in
favor of approval of the Merger, the Merger Agreement and the other
transactions contemplated thereby (collectively, the
“Proposed Transaction”), (ii) against the approval
or adoption of any proposal made in opposition to, or in
competition with, the Proposed Transaction, and (iii) against
any (A) Acquisition Proposal (other than the Proposed
Transaction) or (B) other action that is intended, or could
reasonably be expected, to result in a breach of any covenant,
representation or warranty or any other obligation or agreement of
Credence under the Merger Agreement or of Stockholder under this
Agreement (each of the matters described in either of (ii) and
(iii), an “ Alternative Transaction
”).
(b) If Stockholder is the
beneficial owner, but not the record holder, of the Shares,
Stockholder agrees to take all actions necessary to cause the
record holder and any nominees to vote all of the Shares in
accordance with Section 3(a).
4. Grant of Irrevocable
Proxy .
(a) Stockholder hereby
irrevocably (to the fullest extent permitted by law) grants to, and
appoints, LTX and each of its executive officers and any of them,
in their capacities as officers of LTX (the “ Grantees
”), as Stockholder’s proxy and attorney-in-fact (with
full power of substitution and re-substitution), for and in the
name, place and stead of Stockholder, to vote the Shares, to
instruct nominees or record holders to vote the Shares, or grant a
consent or approval in respect of such Shares in accordance with
Section 3 hereof and, in the discretion of the Grantees with
respect to any proposed adjournments or postponements of any
meeting of Stockholders at which any of the matters described in
Section 3 hereof is to be considered.
(b) Stockholder represents
that any proxies heretofore given in respect of the Shares that may
still be in effect are not irrevocable, and such proxies are hereby
revoked.
(c) Stockholder hereby
affirms that the irrevocable proxy set forth in this Section 4
is given in connection with the execution of the Merger Agreement,
and that such irrevocable proxy is given to secure the performance
of the duties of Stockholder under this Agreement. Stockholder
hereby further affirms that the irrevocable proxy is coupled with
an interest and may under no circumstances be revoked. Stockholder
hereby ratifies and confirms all that such irrevocable proxy may
lawfully do or cause to be done by virtue hereof. Such irrevocable
proxy is executed and intended to be irrevocable in accordance with
the provisions of Section 212 of the Delaware General
Corporation Law.
(d) The Grantees may not
exercise this irrevocable proxy on any other matter except as
provided above. Stockholder may vote the Shares on all other
matters.
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(e) LTX may terminate this
proxy with respect to Stockholder at any time at its sole election
by written notice provided to Stockholder.
5. No Solicitation .
Stockholder, in its capacity as a Stockholder, shall not directly
or indirectly, (a) solicit, initiate, knowingly encourage,
induce or knowingly facilitate the making, submission or
announcement of any Acquisition Proposal or take any action that
could reasonably be expected to lead to an Acquisition Proposal,
(b) furnish any information regarding any of Credence or any
of its Subsidiaries to any Person in connection with or in response
to an Acquisition Proposal or an inquiry or indication of interest
that could reasonably be expected to lead to an Acquisition
Proposal, (c) engage in discussions or negotiations with any
Person with respect to any Acquisition Proposal, (d) approve,
endorse or recommend any Acquisition Proposal or (e) enter
into any letter of intent or similar document or any agreement,
commitment, understanding or other arrangement contemplating or
other
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