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EXHIBIT 99.2
FORM OF VOTING AGREEMENT
VOTING AGREEMENT (this "Agreement"), dated as of July 6, 2000, by and
among Advanced Energy Industries, Inc., a Delaware corporation ("Parent"), Flow
Acquisition Corporation, a Colorado corporation and a wholly-owned subsidiary of
Parent ("Merger Sub"), and _______________ ("Shareholder").
WHEREAS, Shareholder is, as of the date hereof, the record and
beneficial owner of _________ shares of common stock (the "Common Stock") of
Engineering Measurements Company, a Colorado corporation (the "Company"); and
WHEREAS, Parent, Merger Sub and the Company concurrently herewith are
entering into an Agreement and Plan of Merger, dated as of the date hereof (the
"Merger Agreement"), which provides, among other things, for the merger (the
"Merger") of Merger Sub with and into the Company upon the terms and subject to
the conditions set forth in the Merger Agreement; and
WHEREAS, Shareholder has agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the execution and delivery by Parent
and Merger Sub of the Merger Agreement and the foregoing and the mutual
representations, warranties, covenants and agreements set forth herein and
therein, and other good and valuable consideration, the receipt and sufficiency
of which are hereby acknowledged, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of Shareholder. Shareholder
hereby represents and warrants to Parent and Merger Sub as follows:
(a) Shareholder is the record and beneficial owner on the date of
execution hereof of __________ shares of Common Stock (as may be adjusted from
time to time pursuant to Section 5 hereof, the "Shares").
(b) This Agreement has been duly executed and delivered by
Shareholder and constitutes the legal, valid and binding obligation of
Shareholder, enforceable against Shareholder in accordance with its terms,
except (i) as limited by applicable bankruptcy, insolvency, reorganization,
moratorium and other laws of general application affecting enforcement of
creditors' rights generally, and (ii) the availability of the remedy of specific
performance or injunctive or other forms of equitable relief may be subject to
equitable defenses and would be subject to the discretion of the court before
which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by Shareholder of the transactions contemplated hereby will result
in a violation of, or a default under, or conflict with, any contract, trust,
commitment, agreement, understanding, arrangement or restriction of any kind to
which Shareholder is a party or bound or to which the Shares are subject. To the
best of Shareholder's knowledge, except for the
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obligation to file a Schedule 13D with the Securities and Exchange Commission,
consummation by Shareholder of the transactions contemplated hereby will not
violate, or require any consent, approval, or notice under, any provision of any
judgment, order, decree, statute, law, rule or regulation applicable to
Shareholder or the Shares.
(d) The Shares and the certificates representing Shares are now and
at all times during the term hereof will be held by Shareholder, or by a nominee
or custodian for the benefit of Shareholder, free and clear of all liens,
claims, security interests, proxies, voting trusts or agreements, understandings
or arrangements or any other encumbrances whatsoever.
SECTION 2. Representations and Warranties of Parent and Merger Sub. Each
of Parent and Merger Sub hereby, jointly and severally, represents and warrants
to Shareholder as follows:
(a) Each of Parent and Merger Sub is-a corporation duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
incorporation, has all requisite corporate power and authority to execute and
deliver this Agreement and to consummate the transactions contemplated hereby,
and has taken all necessary corporate action to authorize the execution,
delivery and performance of this Agreement.
(b) This Agreement has been duly authorized, executed and delivered
by each of Parent and Merger Sub and constitutes the legal, valid and binding
obligation of each of Parent and Merger Sub, enforceable against each of them in
accordance with its terms, except (i) as limited by applicable bankruptcy,
insolvency, reorganization, moratorium and other laws of general application
affecting enforcement of creditors' rights generally and (ii) the availability
of the remedy of specific performance or injunctive or other forms of equitable
relief may be subject to equitable defenses and would be subject to the
discretion of the court before which any proceeding therefor may be brought.
(c) Neither the execution and delivery of this Agreement nor the
consummation by each of Parent and Merger Sub of the transactions contemplated
hereby will result in a violation of, or a default under, or conflict with, any
contract, trust, commitment, agreement, understanding, arrangement or
restriction of any kind to which each of Parent and Merger Sub is a party or
bound. To the best knowledge of each of Parent and Merger Sub, except for the
obligation to file a Schedule 13D with the Securities and Exchange Commission,
consummation by each of Parent and Merger Sub of the transactions contemplated
hereby will not violate, or require any consent, approval, or notice under, any
provision of any judgment, order, decree, statute, law, rule or regulation
applicable to each of Parent and Merger Sub.
SECTION 3. Transfer of Shares. Prior to the termination of this
Agreement, except as otherwise provided herein and in the Merger Agreement,
Shareholder shall not: (i) transfer (which term shall include, without
limitation, for the purposes of this Agreement, any sale, gift, pledge or other
disposition), or consent to any transfer of, any or all of the Shares or any
interest therein; (ii) enter into any contract, option or other agreement or
understanding with respect to any transfer of any or all of the Shares or any
interest therein; (iii) grant any proxy, power-of-attorney or other
authorization or consent in or with respect to the Shares; or (iv) take any
other action that would in any way restrict, limit or interfere with the
performance of its obligations hereunder or the transactions contemplated
hereby.
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SECTION 4. Grant of Irrevocable Proxy; Appointment of Proxy.
(a) Shareholder hereby irrevocably grants to, and appoints, Parent
and any nominee thereof, Shareholder's proxy and attorney-in-fact (with full
power of substitution), for and in the name, place and stead of Shareholder, to
vote the Shares, or grant a consent or approval in respect of the Shares, in
connection with any meeting of the Shareholders of the Company, if applicable,
(i) in favor of the Merger and (ii) against any action or agreement which would
impede, interfere with or prevent the Merger, including any other extraordinary
corporate transaction, such as a merger, reorganization or liquidation involving
the Company and a third party or any other proposal of a third party to acquire
the Company. Parent agrees to so vote the Shares.
(b) Shareholder represents that any proxies heretofore given in
respect of the Shares are not irrevocable, and that such proxies are hereby
revoked.
(c) SHAREHOLDER 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 SHAREHOLDER UNDER THIS AGREEMENT. SHAREHOLDER HEREBY FURTHER
AFFIRMS THAT THE IRREVOCABLE PROXY IS COUPLED WITH AN INTEREST AND, EXCEPT AS
SET FORTH IN SECTION 8 HEREOF, IS INTENDED TO BE IRREVOCABLE IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 7-107-203(5) OF THE COLORADO BUSINESS CORPORATION ACT.
SECTION 5. Certain Events. In the event of any stock split, stock
dividend, merger, reorganization, recapitalization or other change in the
capital structure of the Company affecting the Common Stock, or the acquisition
of additional shares of Common Stock or other securities or rights of the
Company by Shareholder, the number of Shares shall be adjusted appropriately,
and this Agreement and the obligations hereunder shall attach to any additional
shares of Common Stock or other securities or rights of the Company issued to or
acquired by Shareholder.
SECTION 6. Further Assurances. Shareholder shall, upon request of Parent
or Merger Sub, execute and deliver any additional documents and take such
further actions as may reasonably be deemed by Parent or Merger Sub to be
necessary or desirable to carry out the provisions hereof and to vest the power
to vote the Shares as contemplated by Section 4 hereof in Parent.
SECTION 7. Termination. This Agreement, and all rights and obligations
of the parties hereunder, shall terminate immediately upon (A) the earlier of
the date upon which the Merger Agreement is terminated in accordance with its
terms (i) by either Parent and Merger Sub, on the one hand, or the Company, on
the other hand, or (ii) by mutual written consent of Parent, Merger Sub and the
Company or (B) December 31, 2000, whichever is earlier. The proxy given pursuant
to Section 4 hereof shall be automatically revoked and be of no further force or
effect, without further action on the part of any party hereto, immediately upon
the termination of this Agreement.
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SECTION 8. Expense. All fees and expenses incurred by any one party
hereto shall be borne by the party incurring such fees and expenses.
SECTION 9. Public Announcements. Each of Parent, Merger Sub and the
Company agrees that it will not issue any press release or otherwise make any
public statement with respect to this Agreement or the transactions contemplated
hereby without the prior consent of the other party, which consent shall not be
unreasonably withheld or delayed; provided, however, that such disclosure can be
made without obtaining such prior consent if (i) the disclosure is required by
law or by obligations imposed pursuant to any listing agreement with the Nasdaq
National Market and (ii) the party making such disclosure has first used its
best efforts to consult with the other party about the form and substance of
such disclosure.
SECTION 10. Director. Nothing in this Agreement shall prevent the
Shareholder from taking any action in his capacity as an officer, director or
employee of the Company.
SECTION 11. Miscellaneous.
(a) Capitalized terms used and not otherwise defined in this
Agreement shall have the respective meanings assigned to such terms in the
Merger Agreement.
(b) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (i) transmitter's confirmation of a
receipt of a facsimile transmission, (ii) confirmed delivery by a standard
overnight carrier or when delivered by hand or (iii) the expiration of five
business days after the day when mailed in the United States by certified or
registered mail, postage prepaid, addressed at the following addresses (or at
such other address for a party as shall be specified by like notice):
(A) if to Shareholder to:
[Name and address]
Telephone:
Facsimile:
with a copy to:
Chrisman, Bynum & Johnson, P.C.
1900 Fifteenth Street
Boulder, CO 80302
Attn: G. James Williams, Jr.
Facsimile: (303) 449-5426
and
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(B) if to Parent or Merger Sub, to:
Advanced Energy Industries, Inc.
1625 Sharp Point Drive
Fort Collins, CO 80525
Facsimile: (970) 407-5300
Attention: Richard P. Beck
with a copy to:
Thelen Reid & Priest LLP
333 W. San Carlos Street, 17th Floor
San Jose, California 95110
Telephone: (408) 292-5800
Facsimile: (408) 287-8040
Attention: Jay L. Margulies
(c) The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement.
(d) This Agreement may be executed in two or more counterparts, each
of which shall be deemed an original but all of which shall be considered one
and the same agreement.
(e) This Agreement (including the Merger Agreement and any other
documents and instruments referred to herein) constitutes the entire agreement,
and supersedes all prior agreements and understandings, whether written and
oral, among the parties hereto with respect to the subject matter hereof
(f) This Agreement-shall be governed by, and construed in accordance
with, the laws of the State of Colorado without giving effect to the principles
of conflicts of laws thereof
(g) Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by
operation of law or otherwise) without the prior written consent of the other
parties. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by, the parties and their respective
successors and assigns, and the provisions of this Agreement are not intended to
confer upon any person other than the parties hereto any rights or remedies
hereunder.
(h) If any term, provision, covenant or restriction herein is held
by a court of competent jurisdiction or other authority to be invalid, void or
unenforceable or against its regulatory policy, 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.
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(i) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (i) will waive, in any
action for specific performance, the defense of adequacy of a remedy at law and
(ii) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement
in any action instituted in any state or federal court sitting in Colorado. The
parties hereto consent to personal jurisdiction in any such action brought in
any state or federal court sitting in Colorado.
(j) No amendment, modification or waiver in respect of this
Agreement shall be effective against any party unless it shall be in writing and
signed by such party.
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IN WITNESS WHEREOF, Parent, Merger Sub and Shareholder have caused this
Agreement to bc duly executed and delivered as of the date first written above.
Advanced Energy Industries, Inc.
By: _______________________________
Name:
Title:
Flow Acquisition Corporation
By: _______________________________
Name:
Title:
Shareholder
_______________________________
Name:
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