VOTING AND SUPPORT AGREEMENT
Dated as of August 10, 2023
among
HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT
DR. ANAND RAGHAVAN
GRANITE PEAK VENTURES FUND IV, L.P.
and
NORDHAVEN CAPITAL PARTNERS III, L.P.
VOTING AND SUPPORT AGREEMENT
This VOTING AND SUPPORT AGREEMENT (this "Agreement") is made and entered into as of August 10, 2023, by and among:
(i) Halcyon Semiconductor Aktiengesellschaft, a German stock corporation (Aktiengesellschaft) registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Munich under HRB 178254 ("Parent");
(ii) Dr. Anand Raghavan, an individual ("Raghavan");
(iii) Granite Peak Ventures Fund IV, L.P., a Delaware limited partnership ("Granite Peak"); and
(iv) Nordhaven Capital Partners III, L.P., a Netherlands limited partnership (commanditaire vennootschap) ("Nordhaven").
Each of Raghavan, Granite Peak, and Nordhaven is sometimes referred to herein individually as a "Stockholder" and collectively as the "Stockholders." Parent and the Stockholders are each sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, Parent, Halcyon Acquisition Sub, Inc., a Delaware corporation and wholly owned subsidiary of Parent ("Merger Sub"), and Vectris Photonics, Inc., a Delaware corporation (the "Company"), have entered into that certain Agreement and Plan of Merger, dated as of August 10, 2023 (as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms, the "Merger Agreement"), pursuant to which, among other things, Merger Sub will merge with and into the Company (the "Merger"), with the Company surviving as a wholly owned subsidiary of Parent, upon the terms and subject to the conditions set forth therein;
WHEREAS, the Merger Agreement provides for all-cash merger consideration of Eight Hundred Million Dollars ($800,000,000) in the aggregate (approximately Thirteen Dollars and Seventy Cents ($13.70) per share on a fully diluted basis, based on 58,394,160 fully diluted shares of the Company's common stock outstanding as of the date hereof);
WHEREAS, as of the date hereof, Raghavan is the record and beneficial owner (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended (the "Exchange Act")) of shares of common stock, par value $0.001 per share, of the Company ("Common Stock") representing approximately 18.2% of the outstanding shares of Common Stock;
WHEREAS, as of the date hereof, Granite Peak is the record and beneficial owner of shares of Common Stock representing approximately 22.7% of the outstanding shares of Common Stock;
WHEREAS, as of the date hereof, Nordhaven is the record and beneficial owner of shares of Common Stock representing approximately 14.5% of the outstanding shares of Common Stock;
WHEREAS, collectively, the Stockholders beneficially own approximately 55.4% of the outstanding shares of Common Stock (such shares, together with any additional shares of Common Stock acquired by any Stockholder after the date hereof and prior to the Expiration Date, collectively, the "Subject Shares");
WHEREAS, as a condition and inducement to Parent's willingness to enter into the Merger Agreement, Parent has required that each Stockholder enter into this Agreement;
WHEREAS, each Stockholder acknowledges that Parent is entering into the Merger Agreement in reliance on the representations, warranties, covenants, and agreements of the Stockholders set forth in this Agreement; and
WHEREAS, each Stockholder desires to enter into this Agreement in order to induce Parent to enter into the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties, covenants, and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
Capitalized terms used but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement.
ARTICLE I — DEFINITIONS
Section 1.1 Definitions.
As used in this Agreement, the following terms shall have the following meanings:
"Agreement" has the meaning set forth in the preamble.
"Common Stock" means the common stock, par value $0.001 per share, of the Company.
"Company" means Vectris Photonics, Inc., a Delaware corporation (Delaware File No. 5918437), with its principal executive offices located at 4750 Ridgepoint Drive, Suite 300, San Jose, California 95134.
"Exchange Act" means the Securities Exchange Act of 1934, as amended, and the rules and regulations promulgated thereunder.
"Expiration Date" means the earliest to occur of (a) the Effective Time (as defined in the Merger Agreement), (b) the valid termination of the Merger Agreement in accordance with its terms, and (c) the date of any amendment, modification, or waiver of the Merger Agreement that (i) reduces the aggregate merger consideration payable in connection with the Merger below Eight Hundred Million Dollars ($800,000,000) (or reduces the per-share merger consideration below approximately Thirteen Dollars and Seventy Cents ($13.70) per share), or (ii) otherwise materially and adversely affects any Stockholder, in each case without the prior written consent of the affected Stockholder.
"Granite Peak" has the meaning set forth in the preamble.
"Merger" has the meaning set forth in the recitals.
"Merger Agreement" means the Agreement and Plan of Merger, dated as of August 10, 2023, by and among Parent, Merger Sub, and the Company, as the same may be amended, supplemented, or otherwise modified from time to time in accordance with its terms.
"Merger Sub" means Halcyon Acquisition Sub, Inc., a Delaware corporation (Delaware File No. 7634291) and a wholly owned subsidiary of Parent.
"Nordhaven" has the meaning set forth in the preamble.
"Parent" means Halcyon Semiconductor Aktiengesellschaft, a German stock corporation (Aktiengesellschaft) registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Munich under HRB 178254.
"Party" and "Parties" have the meanings set forth in the preamble.
"Raghavan" has the meaning set forth in the preamble.
"Stockholder" and "Stockholders" have the meanings set forth in the preamble.
"Subject Shares" means (a) all shares of Common Stock beneficially owned (within the meaning of Rule 13d-3 under the Exchange Act) by each Stockholder as of the date hereof, as set forth on Schedule A attached hereto, together with (b) any additional shares of Common Stock or other equity securities of the Company that are acquired by any Stockholder after the date hereof and prior to the Expiration Date, whether acquired by purchase, through the exercise of stock options or warrants, upon the conversion or exchange of any convertible securities, by operation of law, or otherwise.
"Transfer" means, with respect to any Subject Shares, any direct or indirect sale, assignment, transfer, pledge, hypothecation, gift, placement in trust, encumbrance, or other disposition of such Subject Shares (or any interest therein), whether voluntary or involuntary, by operation of law or otherwise, including (a) the creation of any lien, charge, security interest, option, right of first refusal, or other encumbrance, (b) any hedge, swap, or other arrangement that transfers, in whole or in part, the economic consequences of ownership of such Subject Shares, whether any such transaction is to be settled by delivery of securities, in cash, or otherwise, and (c) any public announcement of any intention to do any of the foregoing.
Section 1.2 Terms Defined in the Merger Agreement.
Capitalized terms used in this Agreement but not otherwise defined herein shall have the respective meanings ascribed to such terms in the Merger Agreement. To the extent any capitalized term is defined both herein and in the Merger Agreement, the definition set forth in this Agreement shall control for purposes of this Agreement.
Section 1.3 Rules of Construction.
The rules of construction set forth in Section 9.13 of this Agreement shall apply to this Agreement.
ARTICLE II — AGREEMENT TO VOTE; GRANT OF PROXY
Section 2.1 Agreement to Vote in Favor of the Merger.
Each Stockholder irrevocably and unconditionally agrees that, during the period commencing on the date hereof and continuing until the Expiration Date, at every meeting of the stockholders of the Company, however called (including any adjournment, postponement, or rescheduling thereof), and in connection with every action or approval by written consent of the stockholders of the Company, such Stockholder shall, or shall cause the holder of record of the Subject Shares to:
(a) appear at each such meeting in person or by proxy, or otherwise cause all Subject Shares beneficially owned by such Stockholder to be counted as present thereat for purposes of calculating a quorum; and
(b) vote (or cause to be voted), or deliver (or cause to be delivered) a written consent covering, all of the Subject Shares beneficially owned by such Stockholder:
(i) in favor of the adoption of the Merger Agreement and the approval of the Merger and the other transactions contemplated by the Merger Agreement, in each case on the terms and subject to the conditions set forth in the Merger Agreement;
(ii) in favor of any proposal to adjourn or postpone any meeting of the stockholders of the Company at which any of the foregoing matters is submitted for the consideration and vote of the stockholders of the Company to a later date if there are not sufficient votes for the adoption of the Merger Agreement on the date on which such meeting is held; and
(iii) in favor of any other matter necessary or desirable for the consummation of the Merger and the other transactions contemplated by the Merger Agreement that is considered at any such meeting of stockholders or in connection with any such written consent.
For the avoidance of doubt, as of the date hereof, the Subject Shares constitute approximately 55.4% of the outstanding shares of Common Stock of the Company (comprising Raghavan's approximately 18.2%, Granite Peak's approximately 22.7%, and Nordhaven's approximately 14.5%), which exceeds the affirmative vote of the holders of a majority of the outstanding shares of Common Stock required under Section 251(c) of the General Corporation Law of the State of Delaware (the "DGCL") for the adoption of the Merger Agreement.
Section 2.2 Agreement to Vote Against Competing Proposals.
Each Stockholder irrevocably and unconditionally agrees that, during the period commencing on the date hereof and continuing until the Expiration Date, at every meeting of the stockholders of the Company, however called (including any adjournment, postponement, or rescheduling thereof), and in connection with every action or approval by written consent of the stockholders of the Company, such Stockholder shall vote (or cause to be voted), or deliver (or cause to be delivered) a written consent covering, all of the Subject Shares beneficially owned by such Stockholder against each of the following:
(a) any Acquisition Proposal or Superior Proposal (each as defined in the Merger Agreement), and any agreement, arrangement, or transaction related thereto;
(b) any merger, consolidation, business combination, sale of all or substantially all of the assets, reorganization, recapitalization, dissolution, liquidation, or winding up of or involving the Company or any of its subsidiaries, other than the Merger and the transactions contemplated by the Merger Agreement;
(c) any action, proposal, transaction, or agreement that would reasonably be expected to (i) result in a breach of any covenant, representation, or warranty, or any other obligation or agreement, of the Company contained in the Merger Agreement, or (ii) impede, interfere with, delay, discourage, adversely affect, or inhibit the timely consummation of the Merger or the fulfillment of Parent's, Merger Sub's, or the Company's conditions under the Merger Agreement or otherwise change in any manner the voting rights of any class of shares of capital stock of the Company; and
(d) any action, proposal, transaction, or agreement that would result in any change in the present capitalization of the Company (including any stock split, stock dividend, recapitalization, or reclassification) or any amendment to the Company's Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws, except in each case as otherwise expressly contemplated by or permitted under the Merger Agreement.
Section 2.3 Irrevocable Proxy.
(a) Each Stockholder hereby irrevocably and unconditionally grants to, and appoints, Parent and any designee of Parent, and each of them individually, as such Stockholder's lawful agent, attorney-in-fact, and proxy, with full power of substitution and resubstitution, for and in the name, place, and stead of such Stockholder, to vote (or cause to be voted) or to execute and deliver written consents with respect to all of the Subject Shares beneficially owned by such Stockholder at any meeting of the stockholders of the Company (or any adjournment, postponement, or rescheduling thereof) or in connection with any written consent of the stockholders of the Company, in each case solely as and to the extent described in Section 2.1 and Section 2.2 of this Agreement (the "Proxy").
(b) Each Stockholder represents and warrants that any proxies heretofore given in respect of the Subject Shares are not irrevocable, and that all such proxies are hereby revoked. The Proxy granted pursuant to this Section 2.3 shall supersede any prior proxy granted by any Stockholder with respect to any of the Subject Shares.
(c) Each Stockholder hereby affirms that the Proxy is coupled with an interest and is irrevocable to the fullest extent permitted by Section 212 of the DGCL and other applicable law, and is granted pursuant to this Agreement and in consideration of Parent entering into the Merger Agreement. The Proxy shall automatically terminate upon the occurrence of the Expiration Date.
(d) If any Stockholder fails for any reason to vote (or cause to be voted) the Subject Shares in accordance with the requirements of Section 2.1 and Section 2.2 at any meeting of the stockholders of the Company (or any adjournment, postponement, or rescheduling thereof) or in connection with any written consent of the stockholders of the Company, then the Proxy shall, without further action by any Party, be deemed to have been exercised by Parent in accordance with Section 2.1 and Section 2.2, and Parent is hereby authorized and empowered to vote or act by written consent with respect to such Subject Shares in accordance with Section 2.1 and Section 2.2.
(e) Each Stockholder hereby revokes any and all previous proxies or powers of attorney granted with respect to the Subject Shares that would in any way conflict with the Proxy granted herein, and no subsequent proxy, power of attorney, or consent shall be given by any Stockholder (and if given, shall not be effective) with respect to any of the Subject Shares.
ARTICLE III — REPRESENTATIONS AND WARRANTIES OF THE STOCKHOLDERS
Each Stockholder, severally and not jointly, hereby represents and warrants to Parent as follows:
Section 3.1 Authority and Capacity.
(a) In the case of Raghavan, Raghavan has the legal capacity and full authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. This Agreement has been duly executed and delivered by Raghavan.
(b) In the case of Granite Peak, Granite Peak is a limited partnership duly organized, validly existing, and in good standing under the laws of the State of Delaware. Granite Peak Ventures Management IV, LLC, a Delaware limited liability company, is the sole general partner of Granite Peak and has all necessary power and authority to execute, deliver, and perform this Agreement on behalf of Granite Peak and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Granite Peak and Granite Peak Ventures Management IV, LLC, and no other action or proceeding on the part of Granite Peak or its partners is necessary to authorize the execution, delivery, or performance of this Agreement.
(c) In the case of Nordhaven, Nordhaven is a limited partnership (commanditaire vennootschap) duly organized and validly existing under the laws of the Netherlands. Nordhaven Capital GP III, LLC, a Delaware limited liability company, is the sole general partner (beherend vennoot) of Nordhaven and has all necessary power and authority to execute, deliver, and perform this Agreement on behalf of Nordhaven and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary action on the part of Nordhaven and Nordhaven Capital GP III, LLC, and no other action or proceeding on the part of Nordhaven or its partners is necessary to authorize the execution, delivery, or performance of this Agreement.
(d) This Agreement constitutes the legal, valid, and binding obligation of each Stockholder, enforceable against each Stockholder in accordance with its terms, except as such enforceability may be limited by (i) applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance, or other similar laws of general application relating to or affecting the enforcement of creditors' rights generally, and (ii) the availability of equitable remedies (including specific performance and injunctive relief) as may be limited by equitable principles of general applicability (regardless of whether enforcement is sought in a proceeding at law or in equity) (collectively, the "Bankruptcy and Equity Exceptions").
Section 3.2 Ownership of Subject Shares.
(a) As of the date hereof, Raghavan is the record and beneficial owner of the number of shares of Common Stock set forth opposite Raghavan's name on Schedule A hereto, representing approximately 18.2% of the outstanding shares of Common Stock. Such shares are owned by Raghavan free and clear of all liens, pledges, charges, mortgages, encumbrances, adverse claims, and restrictions on transfer of any kind, other than (i) restrictions imposed by applicable federal and state securities laws, (ii) restrictions arising under this Agreement, and (iii) any encumbrances or restrictions arising under the Company's Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws.
(b) As of the date hereof, Granite Peak is the record and beneficial owner of the number of shares of Common Stock set forth opposite Granite Peak's name on Schedule A hereto, representing approximately 22.7% of the outstanding shares of Common Stock. Such shares are owned by Granite Peak free and clear of all liens, pledges, charges, mortgages, encumbrances, adverse claims, and restrictions on transfer of any kind, other than (i) restrictions imposed by applicable federal and state securities laws, (ii) restrictions arising under this Agreement, and (iii) any encumbrances or restrictions arising under the Company's Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws.
(c) As of the date hereof, Nordhaven is the record and beneficial owner of the number of shares of Common Stock set forth opposite Nordhaven's name on Schedule A hereto, representing approximately 14.5% of the outstanding shares of Common Stock. Such shares are owned by Nordhaven free and clear of all liens, pledges, charges, mortgages, encumbrances, adverse claims, and restrictions on transfer of any kind, other than (i) restrictions imposed by applicable federal and state securities laws, (ii) restrictions arising under this Agreement, and (iii) any encumbrances or restrictions arising under the Company's Amended and Restated Certificate of Incorporation or Amended and Restated Bylaws.
(d) Collectively, the Stockholders beneficially own, as of the date hereof, approximately 55.4% of the outstanding shares of Common Stock of the Company, as set forth in further detail on Schedule A hereto.
(e) The Subject Shares set forth on Schedule A hereto constitute all of the shares of Common Stock (and all other equity securities of the Company) beneficially owned by each respective Stockholder as of the date hereof. No Stockholder beneficially owns any other equity securities of the Company, including any shares of preferred stock, options, warrants, convertible notes, restricted stock units, or other rights to acquire equity securities of the Company, except as specifically set forth on Schedule A hereto.
(f) Each Stockholder has, and will have at all times through the Expiration Date (except following a Transfer permitted by Section 5.2), the sole power (subject to applicable law) to vote and dispose of all Subject Shares beneficially owned by such Stockholder, and none of the Subject Shares is subject to any voting trust, stockholders' agreement, proxy, or other contract, arrangement, or understanding with respect to the voting of such Subject Shares, other than this Agreement.
Section 3.3 No Conflicts.
The execution, delivery, and performance by each Stockholder of this Agreement and the consummation by each Stockholder of the transactions contemplated hereby do not and will not (a) in the case of Granite Peak or Nordhaven, violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, or result in a right of termination or acceleration under, the partnership agreement, limited partnership agreement, operating agreement, or other governing or organizational documents of such Stockholder, (b) violate any applicable law, statute, ordinance, rule, regulation, order, judgment, injunction, or decree applicable to such Stockholder or by which any of the Subject Shares are bound, or (c) violate, conflict with, or result in a breach of any provision of, or constitute a default (or an event that, with notice or lapse of time or both, would constitute a default) under, or result in the termination of, or accelerate the performance required by, any contract, agreement, indenture, mortgage, deed of trust, license, permit, or other instrument or obligation to which such Stockholder is a party or by which such Stockholder or any of the Subject Shares may be bound or affected.
Section 3.4 No Litigation.
As of the date hereof, there is no action, suit, investigation, complaint, arbitration, or other proceeding pending against, or, to each Stockholder's knowledge, threatened against, such Stockholder or any of such Stockholder's assets or properties (including the Subject Shares) before or by any court, arbitrator, governmental body, agency, or official that would reasonably be expected to impair or adversely affect such Stockholder's ability to perform its obligations under this Agreement or to consummate the transactions contemplated hereby on a timely basis.
Section 3.5 No Finder's Fees.
No Stockholder has employed any broker, finder, investment banker, or financial advisor, or incurred any liability for any brokerage fees, commissions, finders' fees, or financial advisory fees, in connection with this Agreement or the transactions contemplated hereby. For the avoidance of doubt, the Parties acknowledge that Clearwater Zanthor & Co., LLC serves as financial advisor to the Company under a separate engagement letter entered into between Clearwater Zanthor & Co., LLC and the Company, and the fees payable thereunder are solely the obligation of the Company as provided in the Merger Agreement.
Section 3.6 Acknowledgment.
Each Stockholder acknowledges and confirms that such Stockholder has received, reviewed, and is familiar with the Merger Agreement (including all exhibits and schedules thereto), understands the terms and conditions thereof, and is entering into this Agreement voluntarily and with full knowledge of the commitments and obligations set forth herein.
ARTICLE IV — REPRESENTATIONS AND WARRANTIES OF PARENT
Parent hereby represents and warrants to each Stockholder as follows:
Section 4.1 Organization and Authority.
Parent is an Aktiengesellschaft duly organized and validly existing under the laws of the Federal Republic of Germany and is registered with the commercial register (Handelsregister) of the local court (Amtsgericht) of Munich under registration number HRB 178254. Parent has the corporate power and authority to execute, deliver, and perform this Agreement and to consummate the transactions contemplated hereby. The execution, delivery, and performance of this Agreement and the consummation of the transactions contemplated hereby have been duly authorized by all necessary corporate action on the part of Parent, including all actions required under the Aktiengesetz (German Stock Corporation Act) and Parent's Satzung (articles of association), and no other corporate proceedings on the part of Parent are necessary to authorize the execution, delivery, or performance of this Agreement.
Section 4.2 No Conflicts.
The execution, delivery, and performance by Parent of this Agreement and the consummation by Parent of the transactions contemplated hereby do not and will not (a) violate, conflict with, or result in a breach of any provision of Parent's Satzung (articles of association) or other organizational documents, or (b) violate any applicable law, statute, ordinance, rule, regulation, order, judgment, injunction, or decree applicable to Parent, in each case in any manner that would reasonably be expected to impair or adversely affect Parent's ability to perform its obligations under this Agreement.
Section 4.3 Enforceability.
This Agreement has been duly executed and delivered by Parent and constitutes the legal, valid, and binding obligation of Parent, enforceable against Parent in accordance with its terms, except as such enforceability may be limited by the Bankruptcy and Equity Exceptions.
ARTICLE V — TRANSFER RESTRICTIONS
Section 5.1 Prohibition on Transfer.
From the date hereof until the Expiration Date, no Stockholder shall, directly or indirectly:
(a) Transfer any Subject Shares or any interest therein, or consent to any Transfer of any Subject Shares or any interest therein;
(b) enter into any contract, option, commitment, or other arrangement or understanding (including any profit-sharing arrangement) with respect to, or relating to, any Transfer of any Subject Shares;
(c) grant any proxy, consent, or power of attorney with respect to any Subject Shares that is inconsistent with this Agreement;
(d) deposit any Subject Shares into a voting trust, or enter into any voting arrangement, pooling agreement, or similar arrangement, whether by proxy, voting agreement, or otherwise, with respect to any Subject Shares (other than this Agreement); or
(e) take any action that would make any representation or warranty of such Stockholder contained herein untrue or incorrect in any material respect or would reasonably be expected to have the effect of preventing, impeding, or interfering with the performance by such Stockholder of its obligations under this Agreement.
Any purported Transfer of Subject Shares or any interest therein in violation of this Section 5.1 shall be null and void ab initio, and neither the Company nor any transfer agent shall give any effect in the Company's stock records to any such attempted Transfer.
Section 5.2 Permitted Transfers.
Notwithstanding anything to the contrary in Section 5.1, a Stockholder may Transfer Subject Shares under the following circumstances, subject to the conditions set forth below:
(a) In the case of Raghavan (as an individual Stockholder), Raghavan may Transfer Subject Shares to a trust established for the benefit of Raghavan and/or members of his immediate family, or to a family limited partnership or family limited liability company in which Raghavan and/or members of his immediate family hold all of the beneficial interests; provided that (i) the transferee executes a joinder agreement in form and substance reasonably satisfactory to Parent, pursuant to which such transferee agrees to be bound by and subject to all of the terms and conditions of this Agreement as if such transferee were a Stockholder hereunder, and (ii) such Transfer shall not relieve Raghavan of any of his obligations hereunder.
(b) In the case of Granite Peak or Nordhaven (as limited partnership Stockholders), such Stockholder may Transfer Subject Shares to an affiliated fund, parallel fund, alternative investment vehicle, or successor entity under common management or common control with such Stockholder (for the avoidance of doubt, including any fund managed by Granite Peak Ventures Management IV, LLC or Nordhaven Capital GP III, LLC, as applicable); provided that (i) the transferee executes a joinder agreement in form and substance reasonably satisfactory to Parent, pursuant to which such transferee agrees to be bound by and subject to all of the terms and conditions of this Agreement as if such transferee were a Stockholder hereunder, and (ii) such Transfer shall not relieve the original Stockholder of any of its obligations hereunder.
(c) Any Stockholder may Transfer Subject Shares as required by applicable law or pursuant to a court order of competent jurisdiction; provided that such Stockholder shall provide Parent with prompt written notice of any such required Transfer, shall use commercially reasonable efforts to minimize the extent of any such required Transfer, and shall use commercially reasonable efforts to cause the transferee to execute a joinder agreement in form and substance reasonably satisfactory to Parent.
Any permitted transferee pursuant to this Section 5.2 must agree in writing, prior to and as a condition of such Transfer, to be bound by and subject to all of the terms and conditions of this Agreement as if such transferee were a Stockholder hereunder, and no Transfer shall be effective unless and until any required joinder agreement has been duly executed and delivered to Parent.
Section 5.3 Legend.
Each Stockholder hereby agrees that the Company may, at the request of Parent, place or cause to be placed a restrictive legend (or book-entry notation, as applicable) on the certificates or book-entry accounts representing the Subject Shares, in substantially the following form:
"THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO RESTRICTIONS ON TRANSFER AND CERTAIN VOTING OBLIGATIONS PURSUANT TO THE TERMS OF A VOTING AND SUPPORT AGREEMENT, DATED AS OF AUGUST 10, 2023, BY AND AMONG HALCYON SEMICONDUCTOR AKTIENGESELLSCHAFT, THE HOLDER OF THESE SHARES, AND CERTAIN OTHER PARTIES. A COPY OF SUCH AGREEMENT IS ON FILE AT THE OFFICES OF THE COMPANY."
Such legend (or notation) shall be removed promptly upon the termination of this Agreement in accordance with Article VIII.
ARTICLE VI — NO SOLICITATION
Section 6.1 Non-Solicitation by Stockholders.
Each Stockholder agrees that, from the date hereof until the Expiration Date, such Stockholder shall not (and shall direct and use its reasonable best efforts to cause its affiliates, officers, directors, employees, consultants, agents, advisors, and other representatives (collectively, "Representatives") not to), directly or indirectly:
(a) solicit, initiate, encourage, or knowingly facilitate (including by way of furnishing non-public information) any inquiry, proposal, indication of interest, or offer from any person or group of persons (other than Parent, Merger Sub, or their respective affiliates and Representatives) that constitutes, or could reasonably be expected to lead to, an Acquisition Proposal;
(b) participate or engage in any discussions or negotiations with, or provide or make available any non-public or confidential information or data concerning the Company or any of its subsidiaries to, any person or group of persons (other than Parent, Merger Sub, or their respective affiliates and Representatives) relating to any Acquisition Proposal or any inquiry, proposal, indication of interest, or offer that could reasonably be expected to lead to an Acquisition Proposal;
(c) enter into, approve, endorse, or recommend, or propose to enter into, approve, endorse, or recommend, any letter of intent, memorandum of understanding, merger agreement, acquisition agreement, or other agreement, arrangement, or understanding (whether binding or non-binding) with respect to any Acquisition Proposal; or
(d) take any action to make any "standstill," "don't ask, don't waive," or similar agreement or provision inapplicable to any person, or waive, terminate, modify, or release any person from any such agreement or provision, in each case in order to facilitate an Acquisition Proposal.
Section 6.2 Notification Obligation.
Each Stockholder shall promptly (and in any event within twenty-four (24) hours) notify Parent in writing if such Stockholder or any of such Stockholder's Representatives receives (a) any Acquisition Proposal, (b) any indication of interest or inquiry with respect to a potential Acquisition Proposal, or (c) any request for non-public or confidential information concerning the Company in connection with a potential Acquisition Proposal, in each case including the material terms and conditions thereof (including the proposed consideration, structure, and timing) and the identity of the person or group making such Acquisition Proposal, indication of interest, inquiry, or request. Each Stockholder shall keep Parent reasonably informed on a reasonably prompt basis of the status and any material developments relating to any such Acquisition Proposal, indication of interest, inquiry, or request.
Section 6.3 Relationship to Merger Agreement.
The obligations of the Stockholders under this Article VI are in addition to, and not in limitation of, any obligations of the Company under Article VI (Covenants Regarding Non-Solicitation) of the Merger Agreement, including the no-shop provisions and the fiduciary-out exception permitting the Company's board of directors to respond to bona fide unsolicited Superior Proposals, as set forth in the Merger Agreement. For the avoidance of doubt, nothing in this Agreement shall limit or restrict any Stockholder who serves as a director or officer of the Company — including, without limitation, Raghavan (in his capacity as a director and officer of the Company), Rhys Calloway (in his capacity as Granite Peak's board designee), and Simone Achterberg (in her capacity as Nordhaven's board designee) — from fulfilling his or her fiduciary duties to the Company and its stockholders in such capacity as a director or officer.
ARTICLE VII — ADDITIONAL COVENANTS
Section 7.1 No Inconsistent Agreements.
No Stockholder shall, during the period from the date hereof until the Expiration Date, enter into any agreement, arrangement, commitment, or understanding, whether written or oral, with any person, that would conflict with, restrict, limit, or interfere with the performance by such Stockholder of its covenants and obligations under this Agreement.
Section 7.2 Further Assurances.
From time to time and without additional consideration, each Party shall execute and deliver, or cause to be executed and delivered, such additional instruments, documents, conveyances, or assurances and take such further actions as may be reasonably necessary or desirable to carry out the intent and purpose of this Agreement and to vest in Parent the benefits contemplated hereunder.
Section 7.3 Waiver of Appraisal Rights.
Each Stockholder hereby irrevocably and unconditionally waives, and agrees not to exercise or assert (and agrees to cause any transferee of Subject Shares pursuant to Section 5.2 to waive and agree not to exercise or assert), any appraisal rights, rights of dissent, or similar rights (including any rights under Section 262 of the DGCL) with respect to the Subject Shares in connection with the Merger or any of the other transactions contemplated by the Merger Agreement. Each Stockholder agrees not to commence, join in, or facilitate, or assist any other person in commencing or prosecuting, any claim, derivative or otherwise, against the Company, Parent, Merger Sub, or any of their respective affiliates, officers, or directors relating to the negotiation, execution, or delivery of this Agreement or the Merger Agreement, or the consummation of the Merger, including any claim (i) challenging the validity of, or seeking to enjoin the operation of, any provision of this Agreement or (ii) alleging a breach of any fiduciary duty of the Company's board of directors in connection with the Merger Agreement or the transactions contemplated thereby.
Section 7.4 Stockholder Capacity.
Each Stockholder is entering into this Agreement solely in its capacity as the record and/or beneficial owner of the Subject Shares, and nothing in this Agreement is intended to or shall (a) limit or affect any actions or omissions taken by any Stockholder (or by any designee or affiliate of any Stockholder) in his, her, or its capacity as a director, officer, or employee of the Company (including, in the case of Raghavan, in his capacity as a director and/or officer of the Company, and in the case of Granite Peak's and Nordhaven's respective board designees) to the extent such actions or omissions are required by applicable law or fiduciary duties, or (b) be deemed to constitute a representation or warranty that any Stockholder has or will exercise any authority or influence over the Company's management, board of directors, or operations, except to the extent expressly set forth herein with respect to the voting and disposition of the Subject Shares. For the avoidance of doubt, nothing herein shall restrict any Stockholder's ability to vote, in his, her, or its capacity as a director of the Company, on any matter presented to the Company's board of directors.
Section 7.5 Confidentiality.
Each Stockholder shall keep confidential and shall not disclose, and shall direct and cause its Representatives to keep confidential and not disclose, the existence of this Agreement and the terms and conditions hereof, except to the extent that disclosure (a) is required by applicable law, statute, rule, or regulation (including the rules and regulations of any securities exchange on which the Company's or Parent's securities are listed), (b) is required in connection with any filing required under the Exchange Act (including any filing on Schedule 13D or Schedule 13D/A), (c) is required by any governmental authority or judicial or administrative process (including in response to a subpoena or court order), (d) is made to such Stockholder's legal, financial, tax, or other professional advisors who are under a duty of confidentiality, (e) is made in connection with the enforcement of rights under this Agreement, or (f) is otherwise consented to in writing by Parent. Each Stockholder shall provide Parent with prompt written notice of any disclosure required under clauses (a), (b), or (c) of the preceding sentence (to the extent permitted by law) and shall cooperate with Parent in seeking a protective order or other appropriate remedy to limit or prevent such disclosure.
Section 7.6 Stop Transfer Instructions.
Each Stockholder hereby authorizes the Company, and agrees to cause the Company, to notify the Company's transfer agent that there is a stop transfer order with respect to all of the Subject Shares beneficially owned by such Stockholder (and that this Agreement places limits on the Transfer of such Subject Shares), subject to the provisions of this Agreement, including the permitted Transfers set forth in Section 5.2. Such stop transfer instructions shall remain in effect until the Expiration Date, at which time Parent shall promptly instruct the Company (or the surviving corporation in the Merger, as applicable) to cause the transfer agent to remove any such stop transfer order.
ARTICLE VIII — TERMINATION
Section 8.1 Termination Events.
This Agreement shall automatically terminate, and none of the Parties shall have any further rights, liabilities, or obligations hereunder (except as set forth in Section 8.2), upon the earliest to occur of:
(a) the Effective Time of the Merger (at which point the obligations of the Stockholders hereunder shall be deemed to have been fully performed);
(b) the valid termination of the Merger Agreement in accordance with its terms, including, without limitation, termination pursuant to Section 8.1(d) thereof for failure to obtain required antitrust or regulatory approvals by the Outside Date (as defined in the Merger Agreement);
(c) the mutual written agreement of all of the Parties to terminate this Agreement; and
(d) any amendment, modification, supplement, or waiver of any provision of the Merger Agreement that (i) reduces the aggregate merger consideration payable in connection with the Merger below Eight Hundred Million Dollars ($800,000,000) (or reduces the per-share merger consideration below approximately Thirteen Dollars and Seventy Cents ($13.70) per share), or (ii) otherwise materially and adversely affects any Stockholder, in each case without the prior written consent of the affected Stockholder.
Section 8.2 Survival.
Upon termination of this Agreement pursuant to Section 8.1, all rights and obligations of the Parties hereunder shall terminate without any further liability of any Party to any other Party; provided, however, that (a) nothing herein shall relieve any Party from liability for any willful and intentional breach of this Agreement occurring prior to such termination, and (b) the provisions of this Article VIII and Article IX (Miscellaneous) shall survive any termination of this Agreement and shall remain in full force and effect.
ARTICLE IX — MISCELLANEOUS
Section 9.1 Notices.
All notices, requests, demands, consents, waivers, and other communications required or permitted to be given under this Agreement shall be in writing and shall be deemed to have been duly given (a) when delivered by hand (with written confirmation of receipt), (b) when sent by email (with receipt confirmed by non-automated reply from the recipient), or (c) one (1) Business Day after being sent by nationally recognized overnight courier (with written confirmation of receipt), in each case to the applicable Party at the following addresses (or at such other address for a Party as shall be specified in a notice given in accordance with this Section 9.1):
If to Parent:
Halcyon Semiconductor Aktiengesellschaft Halcyon-Platz 1 81739 München, Germany
Attention: Dr. Luisa Hartmann, General Counsel
Email: l.hartmann@halcyon-semi.de
with a copy (which shall not constitute notice) to:
Calderwood & Harkness LLP 599 Lexington Avenue, 38th Floor New York, New York 10022
Attention: Oliver Mackenzie
Email: omackenzie@calderwoodharkness.com
If to Raghavan:
Dr. Anand Raghavan c/o Vectris Photonics, Inc. 4750 Ridgepoint Drive, Suite 300 San Jose, California 95134
Email: araghavan@vectrisphotonics.com
with a copy (which shall not constitute notice) to:
Whitfield, Prager & Loomis LLP 2600 Sand Hill Road, Suite 250 Menlo Park, California 94025
Attention: Catherine Whitfield
Email: cwhitfield@wpllaw.com
If to Granite Peak:
Granite Peak Ventures Fund IV, L.P. 3000 El Camino Real, Suite 400 Palo Alto, California 94306
Attention: Rhys Calloway, Managing Partner
Email: rcalloway@granitepeakventures.com
with a copy (which shall not constitute notice) to:
Whitfield, Prager & Loomis LLP 2600 Sand Hill Road, Suite 250 Menlo Park, California 94025
Attention: Catherine Whitfield
Email: cwhitfield@wpllaw.com
If to Nordhaven:
Nordhaven Capital Partners III, L.P. Keizersgracht 452 1016 GD Amsterdam, Netherlands
Attention: Simone Achterberg, Managing Partner
Email: sachterberg@nordhavencapital.nl
with a copy (which shall not constitute notice) to:
Whitfield, Prager & Loomis LLP 2600 Sand Hill Road, Suite 250 Menlo Park, California 94025
Attention: Catherine Whitfield
Email: cwhitfield@wpllaw.com
Section 9.2 Governing Law.
This Agreement shall be governed by and construed in accordance with the internal laws of the State of Delaware, without giving effect to any choice or conflict of law provision or rule (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than the State of Delaware.
Section 9.3 Jurisdiction and Venue.
Each of the Parties irrevocably and unconditionally submits to the exclusive jurisdiction of the Court of Chancery of the State of Delaware (or, if the Court of Chancery of the State of Delaware declines to accept jurisdiction over a particular matter, any federal court of the United States of America sitting in the State of Delaware, and if no such federal court has subject matter jurisdiction, any other state court of the State of Delaware) for the purpose of any action, suit, or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, and each of the Parties irrevocably and unconditionally waives, and agrees not to assert by way of motion, defense, or otherwise, in any such action, suit, or proceeding, any claim that it is not subject personally to the jurisdiction of the aforesaid courts, that the action, suit, or proceeding is brought in an inconvenient forum, that the venue of the action, suit, or proceeding is improper, or that this Agreement or the transactions contemplated hereby may not be enforced in or by any of the aforesaid courts. Each of the Parties further irrevocably consents to the service of process in any such action, suit, or proceeding by means of any method permitted by applicable law, including by the delivery of copies of such process to such Party at its address as set forth in, or subsequently designated in accordance with, Section 9.1.
Section 9.4 Waiver of Jury Trial.
EACH OF THE PARTIES HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY AND ALL RIGHTS TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, SUIT, OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY. EACH OF THE PARTIES CERTIFIES AND ACKNOWLEDGES THAT (A) NO REPRESENTATIVE, AGENT, OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF ANY ACTION, SUIT, OR PROCEEDING, SEEK TO ENFORCE THE FOREGOING WAIVER, (B) EACH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (C) EACH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (D) EACH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE MUTUAL WAIVERS AND CERTIFICATIONS IN THIS SECTION 9.4.
Section 9.5 Entire Agreement.
This Agreement (together with the Merger Agreement and the other documents and instruments referred to herein and therein, including the Schedules hereto) constitutes the entire agreement among the Parties with respect to the subject matter hereof and thereof and supersedes all prior and contemporaneous agreements, understandings, negotiations, and discussions, whether oral or written, of the Parties with respect to such subject matter. No representations, warranties, covenants, agreements, or conditions, express or implied, whether by statute or otherwise, have been made by any Party except as specifically set forth herein or in the Merger Agreement.
Section 9.6 Amendment and Waiver.
This Agreement may not be amended, modified, supplemented, or restated in any manner except by a written instrument duly executed by Parent and each Stockholder. No waiver of any provision of this Agreement shall be effective unless set forth in a written instrument duly executed by the Party or Parties against whom enforcement of such waiver is sought. No failure or delay by any Party in exercising any right, power, or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided are cumulative and not exclusive of any rights or remedies provided by law.
Section 9.7 Severability.
If any provision of this Agreement is held to be invalid, illegal, or unenforceable under any applicable law or rule in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement or invalidate or render unenforceable such provision in any other jurisdiction, and this Agreement shall be reformed, construed, and enforced in such jurisdiction as if such invalid, illegal, or unenforceable provision had never been contained herein. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in an acceptable manner to the end that the transactions contemplated hereby are fulfilled to the greatest extent possible.
Section 9.8 Assignment.