Exhibit 4.1
SHAREHOLDER VOTING AGREEMENT
THIS SHAREHOLDER VOTING AGREEMENT (this "Agreement") is entered into as of
the ___th day of August, 2002 between Novellus Systems, Inc., a California
corporation ("Parent"), and the undersigned Shareholder ("Shareholder") of
SpeedFam-IPEC, Inc., an Illinois corporation ("Company"). Capitalized terms used
but not otherwise defined herein shall have the meanings given to such terms in
the Merger Agreement (as defined below).
RECITALS
A. Parent, NHL Acquisition-Sub, Inc., a Delaware corporation and a
wholly-owned subsidiary of Parent ("Merger Sub"), and Company will enter into an
Agreement and Plan of Merger and Reorganization, dated as of August ___, 2002
(the "Merger Agreement"), pursuant to which Merger Sub will be merged with and
into Company (the "Merger").
B. Upon the consummation of the Merger and in connection therewith,
Shareholder will become the owner of shares of Common Stock of Parent (the
"Parent Shares").
C. In contemplation of executing the Merger Agreement, the parties agreed
that concurrently with the execution of the Merger Agreement, Parent and
Shareholder would execute and deliver a Shareholder Voting Agreement containing
the terms and conditions set forth in an exhibit to the Merger Agreement.
D. In order to induce Parent to enter into the Merger Agreement, Company
has agreed to use its commercially reasonable efforts to solicit the proxy of
certain Shareholders of Company on behalf of Parent, and to cause certain
Shareholders of Company to execute and deliver Shareholder Voting Agreements to
Parent.
E. Shareholder understands and acknowledges that Parent, Merger Sub,
Company and their respective Shareholders, as well as legal counsel to Parent,
Merger Sub and Company, are entitled to rely on (x) the truth and accuracy of
Shareholder's representations contained herein and (y) Shareholder's performance
of the obligations set forth herein.
F. The Shareholder Voting Agreements shall not be deemed to apply to more
than 19.9% of the outstanding shares of the Company.
NOW, THEREFORE, in consideration of the promises and the mutual
agreements, provisions and covenants set forth in the Merger Agreement and in
this Agreement, it is hereby agreed as follows:
1. Share Ownership; Agreement to Retain Shares.
1.1 Transfer and Encumbrance.
(a) Shareholder is the beneficial owner of that number of
shares of Company Capital Stock (as such term is defined in the Merger
Agreement) and that number of options for shares of Company Capital Stock set
forth on the signature page hereto (the "Shares") and did not acquire any of the
Shares in contemplation of the Merger. These Shares
constitute Shareholder's entire interest in the outstanding capital stock of
Company. No other person or entity not a signatory to this Agreement has a
beneficial interest in or a right to acquire such Shares of Company Capital
Stock or any portion of such Shares of Company Capital Stock (except with
respect to any Company Shareholders which are partnerships; the partners thereof
shall be deemed to have a beneficial interest). As of the date hereof, except as
set forth on the signature page hereto, the Shares are free and clear of any
liens, claims, options, charges or other encumbrances. Shareholder's principal
residence or place of business is set forth on the signature page hereto.
(b) Shareholder agrees not to transfer (except as may be
specifically required by court order or by operation of law), sell, exchange,
pledge or otherwise dispose of or encumber the Shares or any New Shares (as
defined below), or to deposit any Shares into a voting trust or grant a proxy
(except for the Proxy, as defined below) or to make any offer or other agreement
relating thereto, at any time prior to the Expiration Date (as defined below),
unless the transferee of such Shares agrees in writing to be bound by the terms
hereof. As used herein, the term "Expiration Date" shall mean the earlier to
occur of (i) the Effective Time of the Merger, or (ii) termination of the Merger
Agreement.
1.2 New Shares. Shareholder agrees that any shares of capital stock
of Company that Shareholder purchases or with respect to which Shareholder
otherwise acquires beneficial ownership after the date of this Agreement and
prior to the Expiration Date ("New Shares") shall be subject to the terms and
conditions of this Agreement to the same extent as if they constituted Shares on
the date hereof.
2. Voting.
2.1 Agreement to Vote Shares. Prior to the Expiration Date, at every
meeting of the Company's shareholders called with respect to any of the
following, and at every adjournment thereof, and on every action or approval by
written consent or resolution of the Company's shareholders with respect to any
of the following, Shareholder shall vote the Shares and any New Shares in favor
of (a) approval of the Merger and the Merger Agreement, and (b) any matter that
could reasonably be expected to facilitate the Merger.
2.2 Obligations as Director and/or Officer. If at any time prior to
the Expiration Date, Shareholder is a member of the Board of Directors of
Company ("Director") or an officer of Company ("Officer"), nothing in this
Agreement shall be deemed to limit or restrict the Director or Officer in acting
in his or her capacity as a Director or Officer of Company, as the case may be,
and exercising his or her fiduciary duties and responsibilities, it being agreed
and understood that this Agreement shall apply to Shareholder solely in his or
her capacity as a shareholder of Company and shall not apply to his actions,
judgements or decisions as a Director or Officer of Company.
3. Irrevocable Proxy. Contemporaneously with the execution of this
Agreement, Shareholder shall execute and deliver to Parent a duly executed proxy
in the form attached hereto as Exhibit A (the "Proxy") with respect to each and
every meeting of the Company's shareholders or action or approval by written
consent or resolution of the Company's shareholders, such Proxy to cover the
total number of Shares and New Shares in respect of which
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Shareholder is entitled to vote at any such meeting or in connection with any
such written consent which calls for the vote of the shareholders to approve the
Merger, the Merger Agreement or other actions which could reasonably be expected
to facilitate the Merger.
4. Representations, Warranties and Covenants of Shareholder. Shareholder
hereby represents, warrants and covenants to Parent as follows:
(a) Shareholder will observe and comply with the Securities
Act and the rules and regulations thereunder (the "General Rules and
Regulations"), as now in effect and as from time to time amended, including
those hereafter enacted or promulgated, in connection with any offer, sale,
exchange, transfer, pledge or other disposition of the Parent Shares or any part
thereof.
(b) Until the Expiration Date, Shareholder agrees that he, she
or it will (and will use commercially reasonable efforts to cause Company, its
affiliates, officers, directors and employees and any investment banker,
attorney, accountant or other agent retained by Shareholder or them, to) fully
comply with the provisions of Section 4.3 of the Merger Agreement. Shareholder
has carefully read this Agreement and Section 4.3 of the Merger Agreement and
discussed the requirements of such documents and other applicable limitations
upon Shareholder's ability to solicit, initiate or intentionally encourage any
Takeover Proposal (as defined in the Merger Agreement) to the extent Shareholder
felt necessary with Shareholder's counsel or counsel for Company.
5. Miscellaneous.
5.1 Severability. If any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction to be
invalid, void or unenforceable, then the remainder of the terms, provisions,
covenants and restrictions of this Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.
5.2 Binding Effect and Assignment. This Agreement and all of
the provisions hereof shall be binding upon and inure to the benefit of the
parties hereto and their respective successors and permitted assigns, but,
except as otherwise specifically provided herein, neither this Agreement nor any
of the rights, interests or obligations of the parties hereto may be assigned by
either of the parties without the prior written consent of the other. This
Agreement is intended to bind Shareholder as a Shareholder of Company only with
respect to the specific matters set forth herein.
5.3 Amendment and Modification. This Agreement may not be
modified, amended, altered or supplemented except by the execution and delivery
of a written agreement executed by the parties hereto.
5.4 Specific Performance; Injunctive Relief. The parties
hereto acknowledge that Parent will be irreparably harmed and that there will be
no adequate remedy at law for a violation of any of the covenants or agreements
of Shareholder set forth herein. Therefore, it is agreed that, in addition to
any other remedies that may be available to Parent upon any such violation,
Parent shall have the right to enforce such covenants and agreements by specific
performance, injunctive relief or by any other means available to Parent at law
or in equity and
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Shareholder hereby waives any and all defenses which could exist in its favor in
connection with such enforcement and waives any requirement for the security or
posting of any bond in connection with such enforcement.
5.5 Notices. All notices and other communications hereunder shall be
in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via facsimile (with confirmation of receipt) to the parties
at the following addresses (or at such other address as shall be specified by
like notice to the other party):
(a) If to Shareholder, at the address set forth below
Shareholder's signature on the signature page hereto with a copy to:
___________________________
___________________________
___________________________
___________________________
Facsimile No.: ____________
Telephone No.: ____________
(b) If to Parent:
Novellus Systems, Inc.
4000 North First Street
San Jose, CA 95134
Attention: Kevin Royal
Facsimile No.: (408) 943-3448
Telephone No.: (408) 943-2206
with a copy to:
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
Attention: William D. Sherman, Esq.
Facsimile: (650) 494-0792
Telephone: (650) 813-5602
or to such other address as any party hereto may designate for itself by notice
given as herein provided.
5.6 Governing Law. This Agreement shall be governed by, construed
and enforced in accordance with the laws of the State of California without
reference to such state's principles of conflicts of laws.
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5.7 Entire Agreement. This Agreement and the Proxy contain the
entire understanding of the parties in respect of the subject matter hereof, and
supersede all prior negotiations and understandings between the parties with
respect to such subject matter.
5.8 Counterparts; Delivery by Facsimile. This Agreement may be
executed in several counterparts, each of which shall be an original, but all of
which together shall constitute one and the same agreement. This Agreement may
be delivered by facsimile.
5.9 Effect of Headings. The section headings herein are for
convenience only and shall not affect the construction or interpretation of this
Agreement.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
NOVELLUS SYSTEMS, INC. SHAREHOLDER
By:________________________________ _____________________________________
Name:______________________________ (Signature)
Title:_____________________________
_____________________________________
(Print Name)
_____________________________________
(Print Address)
_____________________________________
(Print Address)
_____________________________________
(Print Telephone Number)
_____________________________________
(Print Facsimile Number)
_____________________________________
(Social Security or Tax I.D. Number)
Number of shares of Company capital stock owned on the date hereof:
Common Stock: ___________________________________
Stock Options: ___________________________________
State of Residence: ___________________________________
[SIGNATURE PAGE TO SHAREHOLDER VOTING AGREEMENT]
EXHIBIT A TO SHAREHOLDER VOTING AGREEMENT
IRREVOCABLE PROXY
TO VOTE STOCK OF
SPEEDFAM-IPEC, INC.
The undersigned Shareholder of SpeedFam-IPEC, Inc., an Illinois
corporation ("Company"), hereby irrevocably (to the fullest extent permitted by
the laws of the State of Illinois) appoints the members of the Board of
Directors of Novellus Systems, Inc., a California corporation ("Parent"), and
each of them, or any other designee of Parent, as the sole and exclusive
attorneys and proxies of the undersigned, with full power of substitution and
resubstitution, to vote and exercise all voting and related rights (to the
fullest extent that the undersigned is entitled to do so) until the Expiration
Date (as defined below) with respect to all of the shares of capital stock of
Company that now are or hereafter may be beneficially owned by the undersigned,
and any and all other shares or securities of Company issued or issuable in
respect thereof on or after the date hereof (collectively, the "Shares") in
accordance with the terms of this Irrevocable Proxy. The Shares beneficially
owned by the undersigned Shareholder of Company as of the date of this
Irrevocable Proxy are listed on the final page of this Irrevocable Proxy. Upon
the undersigned's execution of this Irrevocable Proxy, any and all prior proxies
given by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date.
This Irrevocable Proxy is irrevocable (to the fullest extent provided
under Illinois law), is coupled with an interest, including, but not limited to,
that certain Shareholder Voting Agreement dated as of even date herewith by and
among Parent and the undersigned, and is granted in consideration of Parent
entering into that certain Agreement and Plan of Merger and Reorganization dated
as of August ___, 2002, (the "Merger Agreement"), between Company, Parent and
NHL Acquisition-Sub, Inc., a Delaware corporation and a wholly-owned subsidiary
of Parent ("Merger Sub"), which agreement provides for the merger of Merger Sub,
with and into Company (the "Merger"). As used herein, the term "Expiration Date"
shall mean the earlier to occur of (i) such date and time as the Merger shall
become effective in accordance with the terms and provisions of the Merger
Agreement, or (ii) the date of termination of the Merger Agreement.
The attorneys and proxies named above, and each of them are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting and other rights of the undersigned with respect to the
Shares (including, without limitation, the power to execute and deliver written
consents pursuant to the State of Illinois Business Corporation Act), at every
annual, special or adjourned meeting of the Shareholders of Company and in every
written consent in lieu of such meeting as follows: (a) in favor of approval of
the Merger and the Merger Agreement and (b) in favor of any matter that could
reasonably be expected to facilitate the Merger.
THE ATTORNEYS AND PROXIES NAMED ABOVE MAY NOT EXERCISE THIS IRREVOCABLE
PROXY ON ANY OTHER MATTER EXCEPT AS PROVIDED ABOVE. THE UNDERSIGNED SHAREHOLDER
MAY VOTE THE SHARES ON ALL OTHER MATTERS.
All authority herein conferred shall survive the death or incapacity of
the undersigned and any obligation of the undersigned hereunder shall be binding
upon the heirs, personal representatives, successors and assigns of the
undersigned.
THIS IRREVOCABLE PROXY IS COUPLED WITH AN INTEREST AS AFORESAID AND IS
IRREVOCABLE.
Dated: August ___, 2002
_____________________________________
(Signature of Shareholder)
_____________________________________
(Print Name of Shareholder)
Number of shares beneficially owned by Shareholder:
Common Stock: _____________
Stock Options: _____________
[SIGNATURE PAGE TO IRREVOCABLE PROXY]