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EXHIBIT 4
VOTING AGREEMENT
THIS VOTING AGREEMENT is entered into as of June 27, 2000, by and
between STEAG Electronic Systems AG, an Aktiengesellschaft organized and
existing under the laws of the Federal Republic of Germany ("Parent"), and Brad
Mattson, an individual ("Stockholder") who is a director and the Chief Executive
Officer of Mattson Technology, Inc., a Delaware corporation (the "Company").
RECITALS
A. On June 27, 2000, the Company and Parent entered into a Strategic
Business Combination Agreement (the "Combination Agreement") pursuant to which,
subject to satisfaction or waiver of the conditions therein, (i) Parent will
sell and transfer 100% of the issued and outstanding capital stock or other
equity ownership interests of certain direct and indirect wholly-owned
subsidiaries of Parent (the "Parent Entities") to the Company and (ii) the
Company shall issue to Parent 11,850,000 shares of restricted common stock, par
value $.001 per share ("Common Stock") of the Company (the "STEAG Transaction").
B. On June 27, 2000, the Company, CFM Technologies, Inc. a Pennsylvania
corporation ("CFM"), and M2C Acquisition Corporation, a Delaware corporation and
wholly-owned subsidiary of the Company ("M2C"), entered into an Agreement and
Plan of Merger (the "CFM Merger Agreement") pursuant to which, subject to
satisfaction or waiver of the conditions therein, (i) M2C will merge with and
into CFM, resulting in CFM continuing as the surviving corporation and M2C
ceasing to exist as a separate corporation (the "CFM Merger") and (ii) the
Company will issue approximately 4,100,000 shares of Common Stock to the
existing stockholders of CFM and assume outstanding CFM stock options in
accordance with the CFM Merger Agreement.
C. As of the date hereof, Stockholder owns approximately 17.0% of the
Company's outstanding Common Stock.
D. In order to induce Parent to enter into the Combination Agreement,
Stockholder is entering into this Voting Agreement.
AGREEMENT
The parties to this Voting Agreement, intending to be legally bound,
agree as follows:
SECTION 1. CERTAIN DEFINITIONS
For purposes of this Voting Agreement:
(a) "COMPANY COMMON STOCK" shall mean the common stock,
par value $.001 per share, of the Company.
(b) "EXPIRATION DATE" shall mean the earliest of (i) the
date upon which the Combination Agreement is validly terminated or (ii) the date
upon which the STEAG Transaction becomes effective.
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(c) Stockholder shall be deemed to "OWN" or to have
acquired "Ownership" of a security if Stockholder: (i) is the record owner of
such security; or (ii) is the "beneficial owner" (within the meaning of Rule
13d-3 under the Securities Exchange Act of 1934) of such security.
(d) "PERSON" shall mean any (i) individual, (ii)
corporation, limited liability company, partnership or other entity, or (iii)
governmental authority.
(e) "SUBJECT SECURITIES" shall mean the securities of the
Company (including all shares of Company Common Stock and options, warrants and
other rights to acquire shares of Company Common Stock) Owned by Stockholder as
of the date of this Agreement, all of which are accurately listed on the
signature page hereof, together with any additional shares, options, warrants
and other rights to acquire shares which additional securities become Owned by
Stockholder between the date hereof and the Expiration Date.
(f) A Person shall be deemed to have a effected a
"TRANSFER" of a security if such Person directly or indirectly: (i) sells,
pledges, encumbers, grants an option with respect to, transfers or disposes of
such security or any interest in such security; or (ii) enters into an agreement
or commitment contemplating the possible sale of, pledge of, encumbrance of,
grant of an option with respect to, transfer of or disposition of such security
or any interest therein.
SECTION 2. TRANSFER OF SUBJECT SECURITIES
2.1 TRANSFEREE OF SUBJECT SECURITIES TO BE BOUND BY THIS AGREEMENT.
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not cause or permit any
Transfer of any of the Subject Securities to be effected unless each Person to
which any of such Subject Securities, or any interest in any of such Subject
Securities, is or may be transferred shall have: (a) executed a counterpart of
this Voting Agreement and a proxy in the form attached hereto as Exhibit A (with
such modifications as Parent may reasonably request); and (b) agreed to hold
such Subject Securities (or interest in such Subject Securities) subject to all
of the terms and provisions of this Voting Agreement.
2.2 TRANSFER OF VOTING RIGHTS. Stockholder agrees that, during the
period from the date of this Voting Agreement through the Expiration Date,
Stockholder shall ensure that: (a) none of the Subject Securities is deposited
into a voting trust; and (b) except pursuant to this Voting Agreement, no proxy
is granted, and no voting agreement or similar agreement, arrangement or
understanding is entered into, with respect to any of the Subject Securities.
SECTION 3. VOTING OF SHARES
3.1 VOTING AGREEMENT. Stockholder agrees that, during the period from
the date of this Voting Agreement through the Expiration Date:
(a) at any meeting of stockholders of the Company, however
called, Stockholder shall (unless otherwise directed in writing by Parent) be
present (in person or by proxy) and voting and shall cause the Subject
Securities that are Owned by Stockholder as of the record date fixed for such
meeting to be voted in favor of the STEAG Transaction and the
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Mattson Stockholder Proposal (as defined in the Combination Agreement)
(collectively, the "Stockholder Proposal"); and
(b) in the event written consents are solicited or
otherwise sought from stockholders of the Company with respect to the
Stockholder Proposal, Stockholder shall (unless otherwise directed in writing by
Parent) cause to be executed, with respect to the Subject Securities that are
Owned by Stockholder as of the record date fixed for the consent to the proposed
actions, a written consent or written consents to such proposed actions.
This Voting Agreement is intended to bind Stockholder only with respect
to the specific matters set forth herein, and shall not prohibit Stockholder
from acting in accordance with his fiduciary duties as an officer or director of
the Company. Stockholder will retain at all times the right to vote the
Stockholder's Subject Securities, in Stockholder's sole discretion, on all
matters other than those set forth in this Section 3.1 which are at any time or
from time to time presented to the Company's stockholders generally.
Notwithstanding the foregoing, Stockholder agrees that during the period from
the date of this Voting Agreement through the Expiration Date, Stockholder shall
not cause or permit the Subject Securities that are Owned by Stockholder as of
the applicable record date to be voted in favor of, and shall not cause or
permit written consents to be executed with respect to such Subject Securities
consenting to, an Acquisition Transaction, or any other proposed transaction by
the Company which would result in a breach by the Company or give rise to a
right of termination on the part of Parent under the Combination Agreement.
3.2 PROXY.
Contemporaneously with the execution of this Voting Agreement, (i)
Stockholder shall deliver to Parent a proxy in the form attached to this Voting
Agreement as Exhibit A, which shall be irrevocable to the fullest extent
permitted by law, with respect to the shares referred to therein (the "Proxy");
and (ii) Stockholder shall cause to be delivered to Parent an additional proxy
(in the form attached hereto as Exhibit A) executed on behalf of the record
owner of any outstanding shares of Company Common Stock that are owned
beneficially (within the meaning of Rule 13d-3 under the Securities Exchange Act
of 1934), but not of record, by Stockholder.
SECTION 4. WAIVER OF APPRAISAL RIGHTS
Stockholder hereby irrevocably and unconditionally waives, and agrees to
cause to be waived and to prevent the exercise of, any rights of appraisal, any
dissenters rights and any similar rights relating to the STEAG Transaction or
any related transaction that Stockholder or any other Person may have by virtue
of the ownership of any outstanding shares of Company Common Stock or other
security Owned by Stockholder.
SECTION 5. NO SOLICITATION
Stockholder agrees that, during the period from the date of this Voting
Agreement through the Expiration Date, Stockholder shall not, directly or
indirectly, and Stockholder shall ensure that his representatives do not,
directly or indirectly solicit, initiate, seek, or encourage any inquiry,
proposal or offer (whether written or oral) from any Person (other than
discussions with Parent), or, except in response to an unsolicited inquiry,
proposal or offer (whether written
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or oral) from any such Person, furnish any information to, or participate in any
negotiations with any such Person, regarding (i) any acquisition of the Company,
any merger or consolidation with or involving the Company which results in the
stockholders of the Company prior to such transaction owning less than 50% of
the capital stock of the surviving corporation, or any acquisition of any
material portion of the stock or assets of the Company or (ii) any acquisition,
whether by merger, stock acquisition, asset acquisition, joint venture,
partnership or otherwise, by the Company of any business which competes with
Parent in the RTP, CVD, wet processing or copper business, other than potential
acquisitions that have been specifically disclosed to Parent in writing prior to
the date of this Voting Agreement, are approved by Parent in writing, or are
otherwise permitted under the terms of the Combination Agreement. The
restrictions and covenants in this Section 5 shall apply to Stockholder only in
his capacity as a stockholder and not to Stockholder in his capacity as a
director or officer of the Company.
SECTION 6. REPRESENTATIONS AND WARRANTIES OF STOCKHOLDER
Stockholder hereby represents and warrants to Parent as follows:
6.1 AUTHORIZATION, ETC. Stockholder has the absolute and unrestricted
right, power, authority and capacity to execute and deliver this Voting
Agreement and the Proxy and to perform his obligations hereunder and thereunder.
This Voting Agreement and the Proxy have been duly executed and delivered by
Stockholder and constitute legal, valid and binding obligations of Stockholder,
enforceable against Stockholder in accordance with their terms, subject to (i)
laws of general application relating to bankruptcy, insolvency and the relief of
debtors, and (ii) rules of law governing specific performance, injunctive relief
and other equitable remedies.
6.2 NO CONFLICTS OR CONSENTS.
(a) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this Voting
Agreement and the Proxy by Stockholder will not: (i) conflict with or violate
any law, rule, regulation, order, decree or judgment applicable to Stockholder
or by which he or any of his properties is or may be bound or affected; or (ii)
result in or constitute (with or without notice or lapse of time) any breach of
or default under, or give to any other Person (with or without notice or lapse
of time) any right of termination, amendment, acceleration or cancellation of,
or result (with or without notice or lapse of time) in the creation of any
encumbrance or restriction on any of the Subject Securities pursuant to any
contract to which Stockholder is a party or by which Stockholder or any of his
affiliates or properties is or may be bound or affected.
(b) The execution and delivery of this Voting Agreement
and the Proxy by Stockholder do not, and the performance of this Voting
Agreement and the Proxy by Stockholder will not, require any consent or approval
of any Person.
6.3 TITLE TO SECURITIES. As of the date of this Voting Agreement: (a)
Stockholder holds of record (free and clear of any liens, claims, encumbrances
or restrictions) the number of outstanding shares of Company Common Stock set
forth under the heading "Shares Held of Record" on the signature page hereof;
(b) Stockholder holds (free and clear of any liens, claims, encumbrances or
restrictions) the options, warrants and other rights to acquire shares of
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Company Common Stock set forth under the heading "Shares Subject to Options and
Other Rights" on the signature page hereof; (c) Stockholder Owns, free and clear
of any liens, claims, encumbrances or restrictions, the additional securities of
the Company set forth under the heading "Additional Securities Beneficially
Owned" on the signature page hereof; and (d) Stockholder does not directly or
indirectly own any shares of capital stock or other securities of the Company,
or any option, warrant or other right to acquire (by purchase, conversion or
otherwise) any shares of capital stock or other securities of the Company, other
than the shares and options, warrants and other rights set forth on the
signature page hereof.
6.4 ACCURACY OF REPRESENTATIONS. The representations and warranties
contained in this Voting Agreement are accurate in all respects as of the date
of this Voting Agreement, will be accurate in all respects at all times through
the Expiration Date and will be accurate in all respects as of the date of the
closing of the STEAG Transaction as if made on that date.
SECTION 7. ADDITIONAL COVENANTS OF STOCKHOLDER
7.1 FURTHER ASSURANCES. From time to time and without additional
consideration, Stockholder shall (at Parent's expense) execute and deliver, or
cause to be executed and delivered, such additional transfers, assignments,
endorsements, proxies, consents and other instruments, and shall (at Parent's
expense) take such further actions, as Parent may reasonably request for the
purpose of carrying out and furthering the intent of this Voting Agreement.
7.2 LEGEND. Prior to any transfer by Stockholder of the Subject
Securities, Stockholder shall submit to the Company's transfer agent each
certificate evidencing any Subject Securities Owned by Stockholder and instruct
that such certificate be imprinted with a legend in the following form: THE
SECURITY OR SECURITIES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
EXCHANGED OR OTHERWISE TRANSFERRED OR DISPOSED OF EXCEPT IN COMPLIANCE WITH THE
TERMS AND PROVISIONS OF THE VOTING AGREEMENT DATED AS OF JUNE 27 2000, BETWEEN
STEAG AND BRAD MATTSON AS IT MAY BE AMENDED, A COPY OF WHICH IS ON FILE AT THE
PRINCIPAL EXECUTIVE OFFICES OF THE COMPANY.
SECTION 8. MISCELLANEOUS
8.1 EXPENSES. Except as otherwise provided herein, all costs and
expenses incurred in connection with the transactions contemplated by this
Voting Agreement shall be paid by the party incurring such costs and expenses.
8.2 NOTICES. Any notice or other communication required or permitted to
be delivered to either party under this Voting Agreement shall be in writing and
shall be deemed properly delivered, given and received (a) upon receipt when
delivered by hand, or (b) three (3) business days after sent by courier or
express delivery service or by facsimile, provided that in each case the notice
or other communication is sent to the address or facsimile telephone number set
forth beneath the name of such party below (or to such other address or
facsimile telephone number as such party shall have specified in a written
notice given to the other party):
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IF TO STOCKHOLDER:
Brad Mattson
3550 West Warren Avenue
Fremont, California 94538
510-657-5900
Facsimile: 510-492-7052
With a copy to:
Gray Cary Ware & Freidenrich LLP
400 Hamilton Avenue
Palo Alto, CA 94301-1825
Attention: Bradley J. Rock, Esq.
IF TO PARENT:
STEAG Electronic Systems AG
Ruettenscheider Strasse 1-3
D-45128 Essen, Germany
Attention: Chief Executive Officer
Fax: 011-49-201-801-6630
Tel: 011-49-201-801-2193
Attention: General Counsel
Fax: 011-49-201-801-6684
Tel: 011-49-201-801-2510
With a copy to:
Dewey Ballantine LLP
1301 Avenue of the Americas
New York, NY 10019
Attention: Marc R. Packer, Esq.
Facsimile: 212-259-6333
8.3 SEVERABILITY. If any provision of this Voting Agreement or any part
of any such provision is held under any circumstances to be invalid or
unenforceable in any jurisdiction, then (a) such provision or part thereof
shall, with respect to such circumstances and in such jurisdiction, be deemed
amended to conform to applicable laws so as to be valid and enforceable to the
fullest possible extent, (b) the invalidity or unenforceability of such
provision or part thereof under such circumstances and in such jurisdiction
shall not affect the validity or enforceability of such provision or part
thereof under any other circumstances or in any other jurisdiction, and (c) the
invalidity or unenforceability of such provision or part thereof shall not
affect the validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Voting Agreement. Each
provision of this Voting Agreement is separable from every other provision of
this Voting Agreement, and each part of each provision of this Voting Agreement
is separable from every other part of such provision.
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8.4 ENTIRE AGREEMENT. This Voting Agreement, the Proxy and any other
documents delivered by the parties in connection herewith constitute the entire
agreement between the parties with respect to the subject matter hereof and
thereof and supersede all prior agreements and understandings between the
parties with respect thereto. No addition to or modification of any provision of
this Voting Agreement shall be binding upon either party unless made in writing
and signed by both parties.
8.5 ASSIGNMENT; BINDING EFFECT. Except as provided herein, neither this
Voting Agreement nor any of the interests or obligations hereunder may be
assigned or delegated by Stockholder and any attempted or purported assignment
or delegation of any of such interests or obligations shall be void. Subject to
the preceding sentence, this Voting Agreement shall be binding upon Stockholder
and his heirs, estate, executors, personal representatives, successors and
assigns, and shall inure to the benefit of Parent and its successors and
assigns. Without limiting any of the restrictions set forth in Section 2 or
elsewhere in this Voting Agreement, this Voting Agreement shall be binding upon
any Person to whom any Subject Securities are transferred. Nothing in this
Voting Agreement is intended to confer on any Person (other than Parent and its
successors and assigns) any rights or remedies of any nature.
8.6 SPECIFIC PERFORMANCE. The parties agree that irreparable damage
would occur in the event that any of the provisions of this Voting Agreement or
the Proxy was not performed in accordance with its specific terms or was
otherwise breached. Stockholder agrees that, in the event of any breach or
threatened breach by Stockholder of any covenant or obligation contained in this
Voting Agreement or in the Proxy, Parent shall be entitled (in addition to any
other remedy that may be available to it, including monetary damages) to seek
and obtain (a) a decree or order of specific performance to enforce the
observance and performance of such covenant or obligation, and (b) an injunction
restraining such breach or threatened breach. Stockholder further agrees that
neither Parent nor any other Person shall be required to obtain, furnish or post
any bond or similar instrument in connection with or as a condition to obtaining
any remedy referred to in this Section 8.6, and Stockholder irrevocably waives
any right he may have to require the obtaining, furnishing or posting of any
such bond or similar instrument.
8.7 NON-EXCLUSIVITY. The rights and remedies of Parent under this Voting
Agreement are not exclusive of or limited by any other rights or remedies which
it may have, whether at law, in equity, by contract or otherwise, all of which
shall be cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of Parent under this Voting Agreement,
and the obligations and liabilities of Stockholder under this Voting Agreement,
are in addition to their respective rights, remedies, obligations and
liabilities under common law requirements and under all applicable statutes,
rules and regulations.
8.8 GOVERNING LAW; VENUE.
(a) This Voting Agreement and the Proxy shall be construed
in accordance with, and governed in all respects by, the laws of the State of
Delaware (without giving effect to principles of conflicts of laws).
(b) Any legal action or other legal proceeding relating to
this Voting Agreement or the Proxy or the enforcement of any provision of this
Voting Agreement or the
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Proxy may be brought or otherwise commenced in any state or federal court
located in the County of New Castle, Delaware. Stockholder: (i) expressly and
irrevocably consents and submits to the jurisdiction of each state and federal
court located in the County of New Castle, Delaware (and each appellate court
located in the State of Delaware), in connection with any such legal proceeding;
(ii) agrees that service of any process, summons, notice or document by U.S.
mail addressed to him at the address set forth in Section 8.2 shall constitute
effective service of such process, summons, notice or document for purposes of
any such legal proceeding; (iii) agrees that each state and federal court
located in the County of New Castle, Delaware, shall be deemed to be a
convenient forum; and (iv) agrees not to assert (by way of motion, as a defense
or otherwise), in any such legal proceeding commenced in any state or federal
court located in the County of New Castle, Delaware, any claim that Stockholder
is not subject personally to the jurisdiction of such court, that such legal
proceeding has been brought in an inconvenient forum, that the venue of such
proceeding is improper or that this Voting Agreement or the subject matter of
this Voting Agreement may not be enforced in or by such court. Nothing contained
in this Section 8.8(b) shall be deemed to limit or otherwise affect the right of
Parent to commence any legal proceeding or otherwise proceed against Stockholder
in any other forum or jurisdiction.
(c) STOCKHOLDER IRREVOCABLY WAIVES THE RIGHT TO A JURY
TRIAL IN CONNECTION WITH ANY LEGAL PROCEEDING RELATING TO THIS VOTING AGREEMENT
OR THE PROXY OR THE ENFORCEMENT OF ANY PROVISION OF THIS VOTING AGREEMENT OR THE
PROXY.
8.9 COUNTERPARTS. This Voting Agreement may be executed by the parties
in separate counterparts, each of which when so executed and delivered shall be
an original, but all such counterparts shall together constitute one and the
same instrument.
8.10 CAPTIONS. The captions contained in this Voting Agreement are for
convenience of reference only, shall not be deemed to be a part of this Voting
Agreement and shall not be referred to in connection with the construction or
interpretation of this Voting Agreement.
8.11 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to this Voting Agreement or the enforcement of any provision of this
Voting Agreement is brought by one party against the other party, the prevailing
party shall be entitled to recover reasonable attorneys' fees, costs and
disbursements (in addition to any other relief to which the prevailing party may
be entitled).
8.12 WAIVER. No failure on the part of Parent to exercise any power,
right, privilege or remedy under this Voting Agreement, and no delay on the part
of Parent in exercising any power, right, privilege or remedy under this Voting
Agreement, shall operate as a waiver of such power, right, privilege or remedy;
and no single or partial exercise of any such power, right, privilege or remedy
shall preclude any other or further exercise thereof or of any other power,
right, privilege or remedy. Parent shall not be deemed to have waived any claim
available to Parent arising out of this Voting Agreement, or any power, right,
privilege or remedy of Parent under this Voting Agreement, unless the waiver of
such claim, power, right, privilege or remedy is expressly set forth in a
written instrument duly executed and delivered on behalf of Parent; and any such
waiver shall not be applicable or have any effect except in the specific
instance in which it is given.
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8.13 CONSTRUCTION.
(a) For purposes of this Voting Agreement, whenever the
context requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the feminine
gender shall include the masculine and neuter genders; and the neuter gender
shall include masculine and feminine genders.
(b) The parties agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Voting Agreement or the
Proxy.
(c) As used in this Voting Agreement, the words "include"
and "including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words "without
limitation."
(d) Except as otherwise indicated, all references in this
Voting Agreement to "Sections" and "Exhibits" are intended to refer to Sections
of this Voting Agreement and Exhibits to this Voting Agreement.
(The remainder of this page is intentionally left blank)
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IN WITNESS WHEREOF, Parent and Stockholder have caused this Voting
Agreement to be executed as of the date first written above.
STEAG ELECTRONIC SYSTEMS AG
By: /s/ Hans Betz
-------------------------------------------
Dr. Hans Betz, Chief Executive Officer
By: /s/ PPE Luetke-Daldrup
-------------------------------------------
Dr. Berthold Luetke-Daldrup
STOCKHOLDER
By: /s/ Brad Mattson
-------------------------------------------
Brad Mattson
SHARES HELD OF RECORD: 3,535,516
SHARES SUBJECT TO OPTIONS AND
OTHER RIGHTS: 316,500
ADDITIONAL SECURITIES BENEFICIALLY OWNED: 0
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EXHIBIT A
FORM OF IRREVOCABLE PROXY
The undersigned stockholder of Mattson Technology, Inc., a Delaware
corporation (the "Company"), hereby irrevocably (to the fullest extent permitted
by law) appoints and constitutes STEAG Electronic Systems AG, an
Aktiengesellschaft organized under the laws of Germany ("Parent") the attorney
and proxy of the undersigned with full power of substitution and resubstitution,
to the full extent of the undersigned's rights with respect to (i) all
outstanding shares of capital stock of the Company owned of record by the
undersigned as of the date of this proxy, which shares are specified on the
final page of this proxy, and (ii) any and all other shares of capital stock of
the Company which the undersigned may acquire on or after the date hereof and
which are Subject Securities (as defined in the Voting Agreement between the
undersigned and Parent of even date herewith). (The shares of the capital stock
of the Company referred to in clauses (i) and (ii) of the immediately preceding
sentence are collectively referred to as the "Shares.") Upon the execution
hereof, all prior proxies given by the undersigned with respect to any of the
Shares are hereby revoked, and the undersigned agrees that no subsequent proxies
will be given with respect to any of the Shares.
This proxy is irrevocable, is coupled with an interest and is granted in
connection with the Voting Agreement, dated as of the date hereof, between
Parent and the undersigned (the "Voting Agreement"), and is granted in
consideration of Parent entering into the Strategic Business Combination
Agreement, dated as of the date hereof, among Parent and the Company (the
"Combination Agreement").
The attorney and proxy named above will be empowered, and may exercise
this proxy, to vote the Shares at any time until the earlier to occur of the
valid termination of the Combination Agreement or the closing of the
transactions contemplated thereby (the "STEAG Transaction") at any meeting of
the stockholders of the Company, however called, or in connection with any
solicitation of written consents from stockholders of the Company, in favor of
the Stockholder Proposal (as defined in the Voting Agreement).
The undersigned may vote the Shares on all other matters subject,
however, to the voting restrictions set forth in the last sentence of Section
3.1 of the Voting Agreement. This proxy shall be binding upon the heirs, estate,
executors, personal representatives, successors and assigns of the undersigned
(including any transferee of any of the Shares).
If any provision of this proxy or any part of any such provision is held
under any circumstances to be invalid or unenforceable in any jurisdiction, then
(a) such provision or part thereof shall, with respect to such circumstances and
in such jurisdiction, be deemed amended to conform to applicable laws so as to
be valid and enforceable to the fullest possible extent, (b) the invalidity or
unenforceability of such provision or part thereof under such circumstances and
in such jurisdiction shall not affect the validity or enforceability of such
provision or part thereof under any other circumstances or in any other
jurisdiction, and (c) the invalidity or unenforceability of such provision or
part thereof shall not affect the validity or enforceability of the remainder of
such provision or the validity or enforceability of any other provision of this
proxy. Each provision of this proxy is separable from every other provision of
this proxy, and each part of each provision of this proxy is separable from
every other part of such provision.
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This proxy shall terminate upon the earlier of the valid termination of
the Combination Agreement or the closing of the STEAG Transaction.
Dated: _______________, 2000.
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(Signature)
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(Print Name)
NUMBER OF SHARES OF COMMON STOCK OF
THE COMPANY OWNED OF RECORD AS OF THE
DATE OF THIS PROXY:
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