|
Exhibit
10.2
EXECUTION
COPY
LTX STOCKHOLDER VOTING
AGREEMENT
THIS STOCKHOLDER VOTING
AGREEMENT (this “ Agreement ”) is made and
entered into as of June 20, 2008, by and among Credence
Systems Corporation, a Delaware corporation (“
Credence ”), LTX Corporation, a Massachusetts
corporation (“ LTX ”) (only with respect to
Section 2(b) hereof), and the undersigned stockholder (“
Stockholder ”) of LTX.
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 LTX 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 LTX owned,
beneficially or of record, by Stockholder as of the date hereof,
and (ii) all additional shares of capital stock of LTX
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, LTX shall not,
and Stockholder hereby unconditionally and irrevocably instructs
LTX 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); provided, however, this
Section 2(c) shall not restrict Stockholder from granting to
LTX a proxy to vote all or a portion of the Shares at any annual
meeting of LTX’s stockholders on any routine matter or
proposal that (i) is unrelated to the Proposed Transaction or
an Alternative Transaction and (ii) could not otherwise
reasonably be expected to adversely affect the consummation of the
Proposed Transaction.
- 2 -
3. Agreement to Vote
Shares .
(a) Prior to the Expiration
Date, at every meeting of the stockholders of LTX called, and at
every adjournment or postponement thereof, and on every action or
approval by written consent of the stockholders of LTX, 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 Charter Amendment and the Share Issuance
(each as defined in the Merger Agreement, and together with the
Merger and the other transactions contemplated by the Merger
Agreement, 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 LTX 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, Credence and each of its executive officers and any of
them, in their capacities as officers of Credence (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 7.22(d) of the Massachusetts
Business Corporation Act.
- 3 -
(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.
(e) Credence 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 LTX 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
P
|
