-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, L2RPWNaDtciTllw7Z0KO3XLJUeaDzp+kd5zQCa5eaxtAqqB1MjIdzSAl6KLA/XzX O1r0mNJsWr6o/4mdsAJlqA== 0000893220-04-002150.txt : 20041015 0000893220-04-002150.hdr.sgml : 20041015 20041015173111 ACCESSION NUMBER: 0000893220-04-002150 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 20041015 DATE AS OF CHANGE: 20041015 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DUPONT PHOTOMASKS INC CENTRAL INDEX KEY: 0001012128 STANDARD INDUSTRIAL CLASSIFICATION: SPECIAL INDUSTRY MACHINERY, NEC [3559] IRS NUMBER: 742238819 STATE OF INCORPORATION: DE FISCAL YEAR END: 0630 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-46151 FILM NUMBER: 041081859 BUSINESS ADDRESS: STREET 1: 131 OLD SETTLERS BLVD CITY: ROUND ROCK STATE: TX ZIP: 78664 BUSINESS PHONE: 5122440024 MAIL ADDRESS: STREET 1: 100 TEXAS AVE CITY: ROUND ROCK STATE: TX ZIP: 78664 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: DUPONT E I DE NEMOURS & CO CENTRAL INDEX KEY: 0000030554 STANDARD INDUSTRIAL CLASSIFICATION: PLASTIC MAIL, SYNTH RESIN/RUBBER, CELLULOS (NO GLASS) [2820] IRS NUMBER: 510014090 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A BUSINESS ADDRESS: STREET 1: 1007 MARKET ST CITY: WILMINGTON STATE: DE ZIP: 19898 BUSINESS PHONE: 3027741000 MAIL ADDRESS: STREET 1: 1007 MARKET ST CITY: WILMINGTON STATE: DE ZIP: 19898 SC 13D/A 1 w03993sc13da.txt SC 13D AMENDMENT #5 DUPONT PHOTOMASKS, INC. SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 Schedule 13D/A Under the Securities Exchange Act of 1934 (Amendment No. 5) DUPONT PHOTOMASKS, INC. Common Stock, par value $0.01 (Title of Class of Securities) 26613X 10 1 (CUSIP Number) Peter C. Mester, Esq. E.I. du Pont de Nemours and Company 1007 Market St. Wilmington, DE 19898 (302) 774-6445 (Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications) October 5, 2004 (Date of Event which Requires Filing of this Statement) If the filing person has previously filed a statement on Schedule 13G to report the acquisition which is the subject of this Schedule 13D, and is filing this schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box [ ]. The information required on the remainder of this cover page shall not be deemed to be "filed" for the purpose of Section 18 of the Securities Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of that section of the Act but shall be subject to all other provisions of the Act (however, see the Notes). CUSIP NUMBER: 26613X 10 1 PAGE 2 OF 11 PAGES - -------------------------------------------------------------------------------- 1) Names of Reporting Persons; I.R.S. Identification Nos. (entities only) E.I. du Pont de Nemours and Company; 51-0014090 - -------------------------------------------------------------------------------- 2) Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) - -------------------------------------------------------------------------------- 3) SEC Use Only - -------------------------------------------------------------------------------- 4) Source of Funds (See Instructions) - -------------------------------------------------------------------------------- 5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6) Citizenship or Place of Organization Delaware - -------------------------------------------------------------------------------- Number of 7) Sole Voting Power 3,629,272 Shares ----------------------------------------------------- Beneficially Owned by 8) Shared Voting Power Each Reporting ----------------------------------------------------- Person With 9) Sole Dispositive Power 3,629,272 ----------------------------------------------------- 10) Shared Dispositive Power ----------------------------------------------------- 11) Aggregate Amount Beneficially Owned by Each Reporting Person 3,629,272 ----------------------------------------------------------------------- 12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) - -------------------------------------------------------------------------------- 13) Percent of Class Represented by Amount in Row (11) 19.64% - -------------------------------------------------------------------------------- 14) Type of Reporting Persons (See Instructions) CO - -------------------------------------------------------------------------------- 2 CUSIP NUMBER: 26613X 10 1 PAGE 3 OF 11 PAGES - -------------------------------------------------------------------------------- 1) Names of Reporting Persons; I.R.S. Identification Nos. (entities only) DuPont Chemical and Energy Corporation; 51-0313062 - -------------------------------------------------------------------------------- 2) Check the Appropriate Box if a Member of a Group (See Instructions) (a) (b) - -------------------------------------------------------------------------------- 3) SEC Use Only - -------------------------------------------------------------------------------- 4) Source of Funds (See Instructions) - -------------------------------------------------------------------------------- 5) Check if Disclosure of Legal Proceedings is Required Pursuant to Items 2(d) or 2(e) - -------------------------------------------------------------------------------- 6) Citizenship or Place of Organization Delaware - -------------------------------------------------------------------------------- Number of 7) Sole Voting Power 3,629,272 Shares -------------------------------------------------------------- Beneficially Owned by 8) Shared Voting Power Each Reporting -------------------------------------------------------------- Person With 9) Sole Dispositive Power 3,629,272 -------------------------------------------------------------- 10) Shared Dispositive Power -------------------------------------------------------------- 11) Aggregate Amount Beneficially Owned by Each Reporting Person 3,629,272 - -------------------------------------------------------------------------------- 12) Check if the Aggregate Amount in Row (11) Excludes Certain Shares (See Instructions) - -------------------------------------------------------------------------------- 13) Percent of Class Represented by Amount in Row (11) 19.64% - -------------------------------------------------------------------------------- 14) Type of Reporting Persons (See Instructions) CO - -------------------------------------------------------------------------------- 3 CUSIP NUMBER: 26613X 10 1 PAGE 4 OF 11 PAGES This Amendment No. 5 to Schedule 13D is filed pursuant to Rule 13d-1 of the Rules and Regulations under the Securities Exchange Act of 1934, as amended (the "Exchange Act") by E. I. du Pont de Nemours and Company, a Delaware corporation ("DuPont") and by Du Pont Chemical and Energy Operations, Inc., a Delaware corporation and wholly owned subsidiary of DuPont ("DCEO"), with respect to the common stock of DuPont Photomasks, Inc., a Delaware corporation ("DPI" or the "Issuer"): ITEM 1. SECURITY AND ISSUER. This Schedule 13D relates to the Common Stock, par value $0.01 per share ("Common Stock"), of DPI. The principal executive offices of DPI are located at 131 Old Settlers Boulevard, Round Rock, Texas 78664. ITEM 2. IDENTITY AND BACKGROUND. This Schedule 13D is filed by DuPont and by DCEO. The principal executive offices of both corporations are located at 1007 Market Street, Wilmington, Delaware 19898. DuPont was founded in 1802 and was incorporated in Delaware in 1915. DuPont is a world leader in science and technology in a range of disciplines including high-performance materials, specialty chemicals, pharmaceuticals and biotechnology. DuPont operates globally through some 20 strategic business units. Within the strategic business units, approximately 80 businesses manufacture and sell a wide range of products to many different markets, including the transportation, textile, construction, automotive, agricultural and hybrid seeds, nutrition and health, pharmaceuticals, packaging and electronics markets. DuPont's strategic business units have been aggregated into nine reportable segments Agriculture & Nutrition, Nylon Enterprise, Performance Coatings & Polymers, Pharmaceuticals, Pigments & Chemicals, Pioneer Hi-Bred International, Inc., Polyester Enterprise, Specialty Fibers and Specialty Polymers. DCEO was incorporated in Delaware in 1988 and is limited by its certificate of incorporation to the making, maintenance and management of its intangible investments and the collection and distribution of the income from such investments. DCEO is a wholly owned subsidiary of DuPont. Information concerning the directors and executive officers of DuPont and DCEO is contained in Schedule A attached hereto. During the last five years, none of DuPont or DCEO nor, to the best knowledge of DuPont and DCEO, any director or executive officer of DuPont or DCEO has been (i) convicted in a criminal 4 CUSIP NUMBER: 26613X 10 1 PAGE 5 OF 11 PAGES proceeding or (ii) a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding has been or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting or mandating activities subject to, federal or state securities laws or finding any violation with respect to such laws. ITEM 3. SOURCE AND AMOUNT OF FUNDS OTHER CONSIDERATION. Not applicable. ITEM 4. PURPOSE OF TRANSACTION. On October 5, 2004, the Issuer announced that it had entered into an agreement pursuant to which Toppan Printing Co., Ltd. ("Toppan") will acquire all of the outstanding shares of the Issuer for $27.00 in cash per share. DuPont has agreed to vote its shares of the Issuer in favor of the transaction and will sell all of its shares of the Issuer if the transaction is consummated. The transaction is subject to shareholder and regulatory approvals and other conditions and is expected to close in early 2005. In the event that the transaction is not consummated, DuPont intends to continue to reduce its ownership interest over time, subject to prevailing market and other conditions. On April 30, 2001, DuPont sold an aggregate of 2,000,000 shares of the Issuer's Common Stock pursuant to Rule 144 under the Securities Act of 1933, as amended. Prior thereto, during November 2000, DuPont sold an aggregate of 375,000 shares of the Issuer's Common Stock pursuant to sales under Rule 144 under the Securities Act of 1933, as amended. Prior thereto, on July 24, 2000, DuPont sold an aggregate of 1,777,778 shares of the Issuer's Common Stock pursuant to an underwritten public offering registered pursuant to the Securities Act of 1933, as amended. During May 2000, DuPont sold an aggregate of 55,000 shares of the Issuer's Common Stock pursuant to sales under Rule 144 under the Securities Act of 1933, as amended, for the purpose of allowing DuPont to obtain a tax benefit associated with a loss from an earlier sale of the Issuer's interest in DuPont Korea Ltd. to DuPont, which tax benefit would have expired on June 30, 2000. During March 1999, DuPont sold an aggregate of 2,100,000 shares of the Issuer's common stock pursuant to a registered underwritten public offering. During September 1999, DuPont sold an aggregate of 498,950 shares of the Issuer's common stock pursuant to sales under Rule 144. (a) DuPont has advised the Issuer that it expects to reduce its ownership interest in the Issuer over time, subject to prevailing market and other conditions. Consistent with this advice, DuPont made the sales described above and entered into the Stockholders Voting Agreement with Toppan described above. In the event that the Toppan transaction is not consummated, DuPont expects to continue to dispose of its holdings from time to time as conditions warrant. (b-j) Not applicable. ITEM 5. INTEREST IN SECURITIES OF THE ISSUER. (a) and (b) As of October 15, 2004, DuPont directly owns 3,629,272 shares of Common Stock of the Issuer. Such shares constitute approximately 19.64% percent of the total number of shares of Common Stock outstanding, based upon 18,482,544 shares outstanding as of August 27, 2004, as reported in the Issuer's Form 10-K for the fiscal year ended June 30, 2004. No director or executive officer of DuPont or DCEO beneficially owns any shares of Common Stock of the Issuer. (c) Not applicable. (d) No person other than DCEO and DuPont has the right to receive or the power to direct receipt of dividends from, or the proceeds from the sale of, the Common Stock of the Issuer. (e) Not applicable. 5 CUSIP NUMBER: 26613X 10 1 PAGE 6 OF 11 PAGES ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH RESPECT TO SECURITIES OF THE ISSUER. On October 5, 2004, DuPont and DCEO entered into a Stockholders Voting Agreement with the Issuer and Toppan pursuant to which DuPont agreed to vote all of its shares of the Issuer in favor of the proposed transaction between the Issuer and Toppan. That agreement is subject to shareholder and regulatory approvals and other conditions. Also on October 5, 2004, DuPont, the Issuer and Toppan entered into a Transition Agreement relating to the Corporate Name and Trademark Agreement between DuPont and the Issuer entered into May 7,1998, as amended. DCEO has entered into a Registration Rights Agreement dated December 31, 1995 (the "Registration Rights Agreement") with the Issuer under which it and its assignees will be entitled to certain rights with respect to the registration under the Securities Act of shares of Common Stock they hold. Subject to certain limitations (including a minimum registration of over 1,000,000 shares), each of DCEO and its assignees has the right to require the Issuer to register the sale of all or part of the shares it holds under the Securities Act (a "demand registration"). DCEO and its assignees, in the aggregate, initially were entitled to request up to five demand registrations, four of which remain available, and each is also entitled to include the shares of Common Stock it holds in a registered offering of securities by the Issuer for its own account, subject to certain conditions and restrictions. The Issuer will pay all expenses associated with a registration of shares of Common Stock by DCEO and its assignees pursuant to the Registration Rights Agreement, other than underwriting discounts and commissions, their out-of-pocket expenses or underwriters' counsel fees and disbursements, if any, relating to such shares. In addition, the Registration Rights Agreement contains certain indemnification provisions (i) by the Issuer for the benefit of DCEO and its assignees as well as any potential underwriter and (ii) by DCEO and its assignees for the benefit of the Issuer and related persons. DCEO and its assignees may transfer their registration rights under the Registration Rights Agreement without the prior approval of the Issuer. The Registration Rights Agreement also provides that while DCEO owns 50% or more of the Issuer's Common Stock, the Issuer may not grant registration rights to any other person without DCEO's prior consent. DuPont is the guarantor of $100,000,000 principal amount of the Issuer's convertible subordinated notes due 2004, which notes were issued pursuant to a registered public offering which was consummated on July 24, 2000. Except for the foregoing agreements, there are no other contracts, arrangements, understandings or relationships (legal or otherwise) among the persons named in Item 2 and between such persons and any person with respect to any securities of the Issuer. ITEM 7. MATERIAL TO BE FILED AS EXHIBITS. The following agreements are filed as exhibits to this Schedule 13D. A. Agreement dated May 1, 2001, between DuPont and DCEO pursuant to which both agree that this Schedule is filed on behalf of both of them. B. Stockholders Voting Agreement dated October 5, 2004. C. Transition Agreement dated October 5, 2004. 6 CUSIP NUMBER: 26613X 10 1 PAGE 7 OF 11 PAGES SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this Statement is true, complete and correct. E.I. DU PONT DE NEMOURS AND COMPANY By: /s/ JOHN P. JESSUP John P. Jessup Vice President and Treasurer DUPONT CHEMICAL AND ENERGY OPERATIONS, INC. By: /s/ A. LLOYD ADAMS A. Lloyd Adams Vice President and Assistant Treasurer 7 CUSIP NUMBER: 26613X 10 1 PAGE 8 OF 11 PAGES SCHEDULE A 1. Set forth below are the name and present principal occupation or employment with E. I. du Pont de Nemours and Company of each director and executive officer. The address of each of the persons listed is c/o DuPont at 1007 Market Street, Wilmington, Delaware 19898. With the exception of Messrs. Belda, Lindahl and Naitoh, who are citizens of Brazil, Sweden and Japan, respectively, each person listed below is a citizen of the United States of America. DIRECTORS: Alain J. P. Belda President and Chief Executive Officer, Alcoa Inc. Richard Brown Director Curtis J. Crawford President and Chief Executive Officer ZiLOG, Inc. John Dillon Director Louisa C. Duemling Director Charles O. Holliday, Jr. Chairman and Chief Executive Officer Deborah C. Hopkins Chief Financial Officer and Executive Vice President, Lucent Technologies Louis D. Juliber Chief Operating Officer, Colgate-Palmolive Company Masahisa Naitoh Executive Vice President, ITOCHU Corporation William K. Reilly President and Chief Executive Officer, Aqua International Partners, L.P. H. Rodney Sharp, III Director Charles M. Vest President, Massachusetts Institute of Technology 8 CUSIP NUMBER: 26613X 10 1 PAGE 9 OF 11 PAGES EXECUTIVE OFFICERS: C. O. Holliday, Jr. R. R. Goodmanson T. M. Connelly S. J. Mobley G. M. Pfeiffer W. Donald Johnson James C. Borel John C. Hodgson 9 CUSIP NUMBER: 26613X 10 1 PAGE 10 OF 11 PAGES 2. Set forth below are the name and principal occupation or employment with DuPont Chemical and Energy Operations, Inc. of each director and executive officer. The address of each of the persons listed is c/o DuPont at 1007 Market Street, Wilmington, Delaware 19898. Each person listed below is a citizen of the United States. NAME AND ADDRESS POSITION Karen K. Meneely President and Director Andrew R. Girardi Vice President, Treasurer and Director A. Lloyd Adams Vice President, Assistant Treasurer and Director Loriann Lea Secretary 10 EX-99.A 2 w03993exv99wa.txt AGREEMENT DATED MAY 1, 2001, BETWEEN DUPONT AND DCEO. CUSIP NUMBER: 26613X 10 1 PAGE 11 OF 11 PAGES EXHIBIT A AGREEMENT By this Agreement, the undersigned agree that this Schedule 13D being filed on or about this date with respect to the ownership by the undersigned of shares of Common Stock of DuPont Photomasks, Inc. is being filed on behalf of each of us. Dated: October 15, 2004 E.I. DU PONT DE NEMOURS AND COMPANY By: /s/ JOHN P. JESSUP Name: John P. Jessup Title: Vice President and Treasurer DUPONT CHEMICAL AND ENERGY OPERATIONS, INC. By: /s/ A. LLOYD ADAMS Name: A. Lloyd Adams Title: Vice President and Assistant Treasurer 11 EX-99.B 3 w03993exv99wb.txt STOCKHOLDERS VOTING AGREEMENT DATED OCTOBER 5, 2004. Exhibit B STOCKHOLDERS VOTING AGREEMENT This STOCKHOLDERS VOTING AGREEMENT (this "AGREEMENT") is entered into as of October 5, 2004, by and among Toppan Printing Co., Ltd., a Japanese corporation ("TOPPAN"), E. I. du Pont de Nemours and Company, a Delaware corporation ("DUPONT"), and DuPont Chemical and Energy Operations, Inc., a Delaware corporation and wholly-owned subsidiary of DuPont ("DCEO", collectively with DuPont, the "STOCKHOLDERS"). W I T N E S S E T H: WHEREAS, as of the date hereof, each Stockholder "beneficially owns" (as such term is defined in Rule 13d-3 promulgated under the Securities Exchange Act of 1934, as amended) and is entitled to dispose of (or to direct the disposition of) and to vote (or to direct the voting of) the number of Subject Shares set forth opposite such Stockholder's name on Schedule I hereto; WHEREAS, concurrently with the execution of this Agreement, Toppan, Toppan Corporation, a Delaware corporation and a wholly-owned subsidiary of Toppan ("MERGER SUB"), and DuPont Photomasks, Inc., a Delaware corporation (the "COMPANY"), are entering into an Agreement and Plan of Merger, dated as of the date hereof (the "MERGER AGREEMENT"), pursuant to which Merger Sub will merge with and into the Company, with the Company surviving as a wholly-owned subsidiary of Toppan (the "MERGER"); WHEREAS, as a material inducement to enter into the Merger Agreement and to consummate the Merger, Toppan desires each Stockholder to agree, and each Stockholder is willing to agree, to vote the Subject Shares and any other such shares of capital stock of the Company acquired by such Stockholder so as to facilitate consummation of the Merger. NOW, THEREFORE, in consideration of the foregoing and the mutual premises, representations, warranties, covenants and agreements contained herein, the parties hereto, intending to be legally bound, hereby agree as follows: ARTICLE I DEFINITIONS Section 1.1 Capitalized Terms. For purposes of this Agreement, capitalized terms used and not defined herein shall have the respective meanings ascribed to them in the Merger Agreement. Section 1.2 Other Definitions. For purposes of this Agreement: (a) "Affiliate" means, with respect to any specified Person, any Person that directly, or indirectly through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified. For purposes of this Agreement, with respect to each Stockholder, the term "Affiliate" shall not include the Company and the Persons that directly, or indirectly through one or more intermediaries, are controlled by the Company. 1 (b) "Representative" means, with respect to any particular Person, any director, officer, employee, accountant, consultant, legal counsel, investment banker, advisor, agent or other representatives of such Person. (c) "Subject Shares" means, with respect to any particular Stockholder, (i) the number of shares of common stock, par value $0.01 per share (the "COMMON STOCK"), of the Company set forth opposite such Stockholder's name on Schedule I hereto, including any other shares of Common Stock the voting power over which is acquired by such Stockholder during the period from and including the date hereof through and including the date on which this Agreement is terminated in accordance with its terms and (ii) any securities into which or for which any or all of the Subject Shares may be changed or exchanged or which are received as a result of any stock dividend or distribution, split-up, recapitalization, combination, exchange of shares or the like. ARTICLE II VOTING AGREEMENT AND IRREVOCABLE PROXY Section 2.1 Agreement to Vote the Subject Shares. Each Stockholder, in its capacity as such, hereby agrees that, during the period commencing on the date hereof and continuing until the termination of this Agreement (such period, the "VOTING PERIOD"), at any meeting (or any adjournment or postponement thereof) of the Company's stockholders, however called, or in connection with any written consent of the Company's stockholders, such Stockholder shall vote (or cause its controlled Affiliates to vote) the Subject Shares (x) in favor of the adoption of the Merger Agreement, the Merger and the other transactions contemplated by the Merger Agreement (and any actions required in furtherance thereof), (y) against any action, proposal, transaction or agreement that would result in a breach in any respect of any covenant, representation or warranty or any other obligation or agreement of the Company contained in the Merger Agreement, and (z) except with the written consent of Toppan, against the following actions or proposals (other than the transactions contemplated by the Merger Agreement): (i) any Takeover Proposal; and (ii) (A) any change in the board of directors of the Company; (B) any amendment of the Company's certificate of incorporation or bylaws; or (C) any other action or proposal involving the Company or any of its Subsidiaries that, in the case of (A), (B) or (C), is intended, or could reasonably be expected, to prevent, impede, interfere with, delay, postpone or adversely affect the transactions contemplated by the Merger Agreement; provided, however, that nothing in this Agreement shall limit or affect any actions taken by any member of the board of directors of the Company nominated by, or appointed at the request of, any Stockholder solely in his or her capacity as a director of the Company. Any such vote shall be cast or consent shall be given in accordance with such procedures relating thereto so as to ensure that it is duly counted for purposes of determining that a quorum is present and for purposes of recording the results of such vote or consent. Each Stockholder agrees not to enter into any agreement or commitment with any Person the effect of which would be inconsistent with or violative of the provisions and agreements contained in this Article II. Section 2.2 Grant of Irrevocable Proxy. Each Stockholder hereby appoints any officer of Toppan and any designee of Toppan, and each of them individually, as such Stockholder's proxy 2 and attorney-in-fact, with full power of substitution and re-substitution, to vote or act by written consent during the Voting Period with respect the Subject Shares in accordance with Section 2.1. This proxy is given to secure the performance of the duties of each Stockholder under this Agreement. Each Stockholder shall promptly cause a copy of this Agreement to be deposited with the Company at its principal place of business. Each Stockholder shall take such further action or execute such other instruments as may be necessary to effectuate the intent of this proxy. Section 2.3 Nature of Irrevocable Proxy. The proxy and power of attorney granted pursuant to Section 2.2 by each Stockholder shall be irrevocable during the term of this Agreement, shall be deemed to be coupled with an interest sufficient in law to support an irrevocable proxy and shall revoke any and all prior proxies granted by such Stockholder with respect to the subject matter contemplated by Section 2.1. The power of attorney granted by each Stockholder herein is a durable power of attorney and shall survive the dissolution, bankruptcy, death or incapacity of such Stockholder. The proxy and power of attorney granted hereunder shall terminate upon the termination of this Agreement. ARTICLE III COVENANTS Section 3.1 Generally. (a) No Transfers. Except for pledges in existence as of the date hereof, each Stockholder agrees that during the Voting Period, except as contemplated by the terms of this Agreement, it shall not, and it shall cause its controlled Affiliates not to, (i) sell, transfer, tender, pledge, encumber, assign or otherwise dispose of (collectively, a "TRANSFER"), or enter into any contract, option or other agreement with respect to, or consent to, a Transfer of, any or all of the Subject Shares or (ii) take any action that would have the effect of preventing, impeding, interfering with or adversely affecting its ability to perform its obligations under this Agreement or the transactions contemplated by the Merger Agreement or which would make any representation or warranty of such Stockholder hereunder untrue or incorrect. (b) No Exercise of Registration Rights. Each Stockholder agrees that it shall not, and it shall cause its controlled Affiliates not to, directly or indirectly, exercise any registration rights with respect to the Subject Shares, including, without limitation, the registration rights set forth that certain Registration Rights Agreement, dated December 31, 1995, by and among the Company and DCEO. Section 3.2 Standstill Obligations of Stockholders. Each Stockholder, jointly and severally, covenants and agrees with Toppan that during the Voting Period: (a) Such Stockholder shall not, nor shall such Stockholder permit any controlled Affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any controlled Affiliate to act in concert with any Person to make, or in any manner participate in, directly or indirectly, a "solicitation" of "proxies" (as such terms are used in the rules of the Securities and Exchange Commission) or powers of attorney or similar rights to vote, or seek to advise or 3 influence any Person with respect to the voting of, any shares of Common Stock in connection with any vote or other action on any matter, other than to recommend that stockholders of the Company vote in favor of the adoption of the Merger Agreement and otherwise as expressly provided by Article II of this Agreement. (b) Such Stockholder shall not, nor shall such Stockholder permit any controlled Affiliate of such Stockholder to, nor shall such Stockholder act in concert with or permit any controlled Affiliate to act in concert with any Person to, deposit any shares of Common Stock in a voting trust or subject any shares of Common Stock to any arrangement or agreement with any Person with respect to the voting of such shares of Common Stock, except as provided by Article II of this Agreement. (c) Such Stockholder shall not, and shall direct its Representatives not to, solicit or initiate any discussions or negotiations with, or knowingly encourage any inquiries or proposals by, any Person, other than Toppan, relating to any Takeover Proposal. Each Stockholder hereby represents that it is not currently engaged in any discussions or negotiations with any party other than Toppan with respect to any Takeover Proposal, and such Stockholder agrees not to participate in any such discussions or negotiations, except to the same extent permitted to the Company's Board of Directors by Section 5.3(a) of the Merger Agreement. (d) Notwithstanding any other provision of this Agreement, it is understood and agreed that DuPont has one representative on the Company's Board of Directors. Nothing in this Agreement shall require such Person to act (or refrain from acting) in any manner in respect of such Person's capacity as a director of the Company. Section 3.3 Further Actions. Each Stockholder hereby covenants and agrees to cooperate fully with Toppan and to execute and deliver any additional documents necessary or desirable and to take such further actions that in the reasonable opinion of Toppan may be necessary to carry out the intent of this Agreement. ARTICLE IV REPRESENTATIONS AND WARRANTIES OF STOCKHOLDERS Each Stockholder hereby represents and warrants, jointly and severally, to Toppan as follows: Section 4.1 Due Organization, etc. Each Stockholder is a company duly organized and validly existing under the laws of the jurisdiction of its incorporation. Each Stockholder has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by each Stockholder have been duly authorized by all necessary action on the part of such Stockholder. Section 4.2 Ownership of Shares. Schedule I sets forth, opposite each Stockholder's name, the number of shares of Common Stock over which such Stockholder has record and 4 beneficial ownership as of the date hereof. As of the date hereof, each Stockholder is the lawful owner of the shares of Common Stock denoted as being owned by such Stockholder on Schedule I and has the sole power to vote (or cause to be voted) such shares of Common Stock. Other than pursuant to the Rights Agreement, dated as of January 30, 2001, between the Company and EquiServe Trust Company, N.A., as amended, no Stockholder or any Affiliate of a Stockholder owns or holds any right to acquire any additional shares of any class of capital stock of the Company or other securities of the Company or any interest therein or any voting rights with respect to any securities of the Company. Each Stockholder has good and valid title to the Subject Shares, free and clear of any and all pledges, mortgages, liens, charges, proxies, voting agreements, encumbrances, adverse claims, options, security interests and demands of any nature or kind whatsoever, other than those created by this Agreement or as could not reasonably be expected to impair any Stockholder's ability to perform its obligations under this Agreement. Section 4.3 No Conflicts. (i) No filing with any governmental authority, and no authorization, consent or approval of any other Person is necessary for the execution of this Agreement by any Stockholder and the consummation by any Stockholder of the transactions contemplated hereby and (ii) the execution and delivery of this Agreement by any Stockholder, the consummation by any Stockholder of the transactions contemplated hereby or compliance by any Stockholder with any of the provisions hereof shall not (A) conflict with or result in any breach of the organizational documents of any Stockholder, (B) result in, or give rise to, a violation or breach of or a default (with notice or lapse of time, or both) under, or give to others any rights of termination, amendment, acceleration or cancellation of, or result in the creation of an encumbrance on or otherwise affecting any of the Subject Shares pursuant to, any of the terms of any material contract, understanding, agreement or other instrument or obligation to which any Stockholder is a party or by which any Stockholder or any of the Subject Shares may be bound, or (C) violate any applicable order, writ, injunction, decree, judgment, statute, rule or regulation, except for any of the foregoing as could not reasonably be expected to impair any Stockholder's ability to perform its obligations under this Agreement. Section 4.4 Enforceability. This Agreement has been duly executed and delivered by each Stockholder and assuming the due authorization, execution and delivery by Toppan, constitutes the legal, valid and binding obligations of each Stockholder, enforceable against each Stockholder in accordance with its 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. Section 4.5 Continuous Warranty. The representations and warranties contained in this Agreement are accurate in all respects as of the date of this Agreement, will be accurate in all respects at all times through the Expiration Date (as defined in Section 6.1) and will be accurate in all respects as of the date of the consummation of the Merger as if made on that date Section 4.6 Reliance by Toppan. Each Stockholder understands and acknowledges that Toppan is entering into the Merger Agreement in reliance upon the execution and delivery of this Agreement by such Stockholder. 5 ARTICLE V REPRESENTATIONS AND WARRANTIES OF TOPPAN Toppan hereby represents and warrants to the Stockholders as follows: Section 5.1 Due Organization, etc. Toppan is a company duly organized and validly existing under the laws of Japan. Toppan has all necessary corporate power and authority to execute and deliver this Agreement and to consummate the transactions contemplated hereby. The execution and delivery of this Agreement and the consummation of the transactions contemplated hereby by Toppan have been duly authorized by all necessary action on the part of Toppan. Section 5.2 Conflicts. (i) No filing with any governmental authority, and no authorization, consent or approval of any other Person is necessary for the execution of this Agreement by Toppan and the consummation by Toppan of the transactions contemplated hereby and (ii) none of the execution and delivery of this Agreement by Toppan, the consummation by Toppan of the transactions contemplated hereby shall (A) conflict with or result in any breach of the organizational documents of Toppan, (B) result in, or give rise to, a violation or breach of or a default under any of the terms of any material contract, understanding, agreement or other instrument or obligation to which Toppan is a party or by which Toppan or any of its assets may be bound, or (C) violate any applicable order, writ, injunction, decree, judgment, statute, rule or regulation, except for any of the foregoing as could not reasonably be expected to impair Toppan's ability to perform its obligations under this Agreement. Section 5.3 Enforceability. This Agreement has been duly executed and delivered by Toppan and assuming the due authorization, execution and delivery by the Stockholders, constitutes the legal, valid and binding obligations of Toppan, enforceable against Toppan in accordance with its 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. Section 5.4 Reliance by Stockholders. Toppan understands and acknowledges that the Stockholders are entering into this Agreement in reliance upon the execution and delivery of the Merger Agreement by Toppan. ARTICLE VI TERMINATION Section 6.1 Termination. This Agreement shall terminate, and none of Toppan or any Stockholder shall have any rights or obligations hereunder and this Agreement shall become null and void and have no effect upon the earliest to occur of (i) the mutual consent of Toppan and DuPont, (ii) the effective time of the Merger, (iii) the date of termination of the Merger Agreement in accordance with its terms, or (iv) the date of any amendment to the Merger Agreement, without the consent of the Company's stockholders, that has the effect of reducing the cash portion of the Merger Consideration to an amount less than $27 per share (appropriately 6 adjusted for any stock splits, stock dividends and the like) (the "EXPIRATION DATE"); provided, however, that termination of this Agreement shall not prevent any party hereunder from seeking any remedies (at law or in equity) against any other party hereto for such party's breach of any of the terms of this Agreement. Notwithstanding the foregoing, Sections 7.3, 7.4, 7.7 and 7.13, inclusive, of this Agreement shall survive the termination of this Agreement. ARTICLE VII MISCELLANEOUS Section 7.1 Appraisal Rights. To the extent permitted by applicable law, each Stockholder hereby irrevocably and unconditionally waives any rights of appraisal, dissenters' rights or similar rights that such Stockholder may have in connection with the Merger. Each Stockholder shall cause to be irrevocably and unconditionally waived any such rights that any Affiliate of such Stockholder may have in connection with the Merger. Section 7.2 Governmental Filings. Each Stockholder hereby permits Toppan to file a copy of this Agreement with, and summarize its contents in, all necessary filings with any governmental agency or organization. Section 7.3 Indemnification. Without in any way limiting any of the rights or remedies otherwise available to Toppan and Toppan's Affiliates, each Stockholder shall, jointly and severally, hold harmless and indemnify Toppan and Toppan's Affiliates from and against, and shall compensate and reimburse Toppan and Toppan's Affiliates for, any loss, damage, injury, liability, exposure, claim, demand, settlement, judgment, award, fine, penalty, tax, fee (including reasonable attorneys' fees), charge, cost or expense of any nature (whether or not relating to a third party claim) which is directly or indirectly suffered or incurred at any time by Toppan or any of Toppan's Affiliates, or to which Toppan or any of Toppan's Affiliates otherwise becomes subject, and that arises from, or relates to, any material inaccuracy in or material breach of any representation, warranty, covenant, restriction or obligation of such Stockholder contained in this Agreement. Section 7.4 Fees and Expenses. Each of the parties shall be responsible for its own fees and expenses (including, without limitation, the fees and expenses of financial consultants, investment bankers, accountants and counsel) in connection with the entering into of this Agreement and the consummation of the transactions contemplated hereby and by the Merger Agreement. Section 7.5 Amendments, Waivers, etc. This Agreement may not be amended, changed, supplemented, waived or otherwise modified, except upon the execution and delivery of a written agreement executed by each of the parties hereto. The failure of any party hereto to exercise any right, power or remedy provided under this Agreement or otherwise available in respect hereof at law or in equity, or to insist upon compliance by any other party hereto with its obligations hereunder, and any custom or practice of the parties at variance with the terms hereof shall not constitute a waiver by such party of its right to exercise any such or other right, power or remedy or to demand such compliance. 7 Section 7.6 Specific Performance. The parties hereto acknowledge that Toppan will be irreparably harmed and that there will be no adequate remedy at law for a violation of any of the covenants or agreements of the Stockholders set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to Toppan upon any such violation, Toppan shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to Toppan at law or in equity. Section 7.7 Notices. Any notices or other communications required or permitted under, or otherwise in connection with this Agreement shall be in writing and shall be deemed to have been duly given when delivered in person or upon confirmation of receipt when transmitted by facsimile transmission (with confirmation) or on receipt after dispatch by registered or certified mail, postage prepaid, addressed, or on the next business day if transmitted by national overnight courier, in each case as follows: If to Toppan or Merger Sub, addressed to: Toppan Printing Co., Ltd. 1 Kanda Izumi-cho, Chiyoda-ku, Tokyo 101-0024 Japan Fax: +81.3.3835.1447 Attn: General Manager of Legal Department with a copy to: Squire, Sanders & Dempsey L.L.P. Ebisu Prime Squire Tower, 16F 1-1-39 Hiroo Shibuya-ku, Tokyo 150-0012 Japan Fax: +81.3.5774.1818 Attn: Stephen E. Chelberg If to Stockholders, addressed to: E. I. du Pont de Nemours and Company 1007 Market Street Wilmington, Delaware 19898 Fax: (302) 774-7869 Attn: Treasurer 8 with a copy to: E. I. du Pont de Nemours and Company 1007 Market Street Wilmington, Delaware 19898 Fax: (302) 774-4031 Attn: Corporate Secretary Section 7.8 Headings. 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. Section 7.9 Severability. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any rule of law or public policy, all other conditions and provisions of this Agreement shall nevertheless remain in full force and effect so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party. Upon such determination that any term or other provision is invalid, illegal or incapable of being enforced, the parties hereto 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 transactions contemplated hereby are fulfilled to the extent possible. Section 7.10 Entire Agreement. This Agreement (together with the Merger Agreement, to the extent referred to herein) constitutes the entire agreement of the parties and supersedes all prior agreements and undertakings, both written and oral, between the parties, or any of them, with respect to the subject matter hereof. Section 7.11 Assignment. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of each of the parties, except that each of Toppan and Merger Sub may assign and transfer its rights and obligations hereunder to any direct or indirect wholly-owned subsidiary of Toppan. Section 7.12 Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. Section 7.13 Governing Law; Consent to Jurisdiction; Waiver of Trial by Jury. (a) This Agreement and any disputes arising from or relating thereto shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of laws thereof. (b) Each of the parties hereto hereby irrevocably waives any and all rights to trial by jury in any legal proceedings arising out of or related to this Agreement or the Transactions. 9 (c) Each of the parties hereto (i) consents to submit itself to the personal jurisdiction of the Chancery Court located in the City of Wilmington, State of Delaware, in the event any dispute arises out of this Agreement or any of the Transactions, (ii) agrees that it will not attempt to deny or defeat such personal jurisdiction by motion or other request for leave from any such court and (iii) agrees that it will not bring any action relating to this Agreement or any of the Transactions in any court other than the Chancery Court located in the City of Wilmington, State of Delaware, and such court shall serve as the exclusive venue for the resolution of all disputes arising out of or related to this Agreement and the Transactions. Section 7.14 Counterparts. This Agreement may be executed in counterparts, each of which when executed shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. [SIGNATURE PAGE FOLLOWS] 10 IN WITNESS WHEREOF, Toppan and the Stockholders have caused this Agreement to be duly executed as of the day and year first above written. Toppan Printing Co., Ltd., a Japanese corporation By: /s/ NAOKI ADACHI _________________________________ Name: Naoki Adachi Title: President and CEO E. I. du Pont de Nemours and Company, a Delaware corporation By: /s/ JOHN P. JESSUP _________________________________ Name: John P. Jessup Title: Vice President and Treasurer DuPont Chemical and Energy Operations, Inc., a Delaware corporation By: /s/ A. LLOYD ADAMS _________________________________ Name: A. Lloyd Adams Title: Vice President and Assistant Treasurer [SIGNATURE PAGE TO STOCKHOLDERS VOTING AGREEMENT] SCHEDULE I OWNERSHIP OF COMMON STOCK
Name and address of Stockholder Number of Shares - ------------------------------- ---------------- E. I. du Pont de Nemours and Company (1) 0* 1007, Market Street Wilmington, Delaware 19898 DuPont Chemical and Energy Operations, Inc. 3,629,272 1007 Market Street Wilmington, Delaware 19898
- ---------- *DuPont does not directly own any shares of the Company, but is deemed to be the beneficial owner of all the Company shares owned by DCEO. EX-99.C 4 w03993exv99wc.txt TRANSITION AGREEMENT DATED OCTOBER 5, 2004. Exhibit C TRANSITION AGREEMENT This Transition Agreement ("Agreement") is entered into this 5th day of October, 2004 among E. I. du Pont de Nemours and Company, a Delaware corporation ("DuPont"), DuPont Photomasks, Inc., a Delaware corporation (the "Company"), and Toppan Printing Co., Ltd., a Japanese corporation ("Toppan"). RECITALS WHEREAS, concurrently with the execution of this Agreement, the Company and Toppan are entering into an Agreement and Plan of Merger dated October 5, 2004 (the "Merger Agreement"), pursuant to which a wholly owned subsidiary of Toppan will merge with and into the Company and the Company will survive as a wholly owned subsidiary of Toppan (the "Merger"); WHEREAS, DuPont and the Company are parties to that certain Corporate Tradename and Trademark Agreement entered into May 7, 1998, as amended (the "Trademark Agreement"); WHEREAS, pursuant to the Trademark Agreement, DuPont granted (i) to the Company the non-assignable and non-exclusive license to use the tradename "DuPont" (the "Licensed Tradename") as part of the Company's Corporate Name (as such term is defined in the Trademark Agreement), or as part of the Corporate Name of an Affiliated Company (as such term is defined in the Trademark Agreement), and (ii) to the Company and its Affiliated Companies the non-exclusive and non-transferable right to use the trademark DuPont in Oval (the "Licensed Trademark") as part of its corporate logotype and for the sale of products manufactured by the Company, subject to the limitations set forth in the Trademark Agreement; WHEREAS, under Section 5.1(c) of the Trademark Agreement, upon consummation of the transactions contemplated by the Merger Agreement, DuPont will have the right to terminate the Trademark Agreement; and WHEREAS, in order to induce Toppan to enter into the Merger Agreement, DuPont, the Company and Toppan desire to enter into this Agreement. NOW, THEREFORE, the parties agree as follows: 1. Transition Period. Conditioned upon the effectiveness of the Merger in accordance with the terms of the Merger Agreement (the "Effective Date"), DuPont agrees to waive its right to terminate the Trademark Agreement during the period commencing on the Effective Date and ending on the six-month anniversary of the Effective Date (the "Transition Period"). 2. Termination Date of Trademark Agreement. Notwithstanding Article 6 of the Trademark Agreement, the parties agree that the Company and its Affiliated Companies shall have no further right to the use of the Licensed Tradename or Licensed Trademark from and after the end of the Transition Period and the Trademark Agreement shall terminate as of such date. No notice of termination of the Trademark Agreement or of the Company's right to use the Licensed Tradename or Licensed Trademark shall be required for such termination. Toppan and the Company shall provide written notice to DuPont promptly following completion of the 1 Transition Period, notifying DuPont of such completion and confirming that the Company has no further right to use the Licensed Tradename or Licensed Trademark and that the Company has (a) changed its tradename so that the word "DuPont" is omitted therefrom, (b) ceased using the word "DuPont" or any word similar thereto as, or as part of, its Corporate Name or in any other manner whatsoever, and (c) ceased using the Licensed Trademark. 3. Indemnity. Toppan shall indemnify and hold DuPont harmless from any and all losses, costs and liability (including, without limitation, attorney's fees, settlements, judgments and arbitration awards) that arise directly or indirectly from, or relate directly or indirectly to, the Company's use of the Licensed Tradename and Licensed Trademark following the Effective Date. This provision shall survive the termination of this Agreement. 4. Effectiveness. This Agreement shall be of no force or effect unless and until the execution of the Merger Agreement by each of the parties thereto. 5. Representations and Warranties. Each party represents and warrants to the other parties that: (a) this Agreement has been duly executed and delivered by such party and constitutes the legal, valid and binding obligation of the party, enforceable in accordance with its terms; (b) such party has the full right, power and authority to enter into this Agreement and to perform its obligations under this Agreement; (c) no consent, approval, authorization or order of, or filing with, any governmental agency or body or any court is required to be obtained or made by such party for the consummation of the transactions contemplated by this Agreement; and (d) the execution, delivery and performance of this Agreement and the consummation of the transactions herein contemplated will not violate or conflict with, result in the loss of any material benefit under, constitute a default (or an event which, with notice or lapse of time, or both, would constitute a default) under, result in the termination of or a right of termination or cancellation under, or accelerate the performance required by such party under any material agreement or instrument to which it is a party or by which it is bound, or result in the creation of any lien upon any of the properties or other assets of such party, except for such violations, conflicts, losses, defaults, terminations, cancellations or liens as, individually or in the aggregate, would not reasonably be expected to have a material adverse effect on the business, assets, results of operations or financial condition of the party. 6. Specific Performance. The parties hereto acknowledge that the parties will be irreparably harmed and that there will be no adequate remedy at law for a violation of any of the covenants or agreements set forth herein. Therefore, it is agreed that, in addition to any other remedies that may be available to any party upon any such violation, such party shall have the right to enforce such covenants and agreements by specific performance, injunctive relief or by any other means available to such party at law or in equity. 2 7. Notices. All notices, requests and other communications to any party hereunder shall be in writing and shall be deemed given if delivered personally, facsimiled (which is confirmed) or sent by overnight courier (providing proof of delivery) to the parties at the following addresses: If to DuPont, to: E. I. du Pont de Nemours and Company 1007 Market Street Wilmington, Delaware 19898 Attention: Treasurer Facsimile: (302)774-7869 with a copy (which shall not constitute notice) to: E. I. du Pont de Nemours and Company 1007 Market Street Wilmington, Delaware 19898 Attention: Corporate Secretary Facsimile: (302) 774-4031 If to the Company, to: DuPont Photomasks, Inc. 131 Old Settlers Boulevard Round Rock, Texas 78664 Attention: General Counsel Facsimile: (512) 310-6544 with a copy (which shall not constitute notice) to: Vinson & Elkins L.L.P. Terrace 7 2801 Via Fortuna, Suite 100 Austin, Texas 78746 Attention: J. Nixon Fox, III Facsimile: 512.236.3216 If to Toppan, to: Toppan Printing Co., Ltd. 1 Kanda Izumi-cho, Chiyoda-ku, Tokyo 101-0024 Japan Attention: General Manager of Legal Department Facsimile: +81.3.3835.1447 3 with copy (which shall not constitute notice) to: Squire, Sanders & Dempsey L.L.P. Ebisu Prime Squire Tower, 16F 1-1-39 Hiroo Shibuya-ku, Tokyo 150-0012 Japan Attention: Stephen E. Chelberg Facsimile: +81.3.5774.1818 or such other address or facsimile number as such party may hereafter specify for the purpose by notice to the other parties hereto. All such notices, requests and other communications shall be deemed received on the date of receipt by the recipient thereof if received prior to 5:00 P.M. in the place of receipt and such day is a business day in the place of receipt. Otherwise, any such notice, request or communication shall be deemed not to have been received until the next succeeding business day in the place of receipt. 8. Amendment and Waiver. This Agreement may not be changed orally and no waiver of compliance with any provision or condition hereof shall be effective unless evidenced by an instrument in writing duly executed by the proper party. Compliance with any of the covenants or conditions contained in this Agreement may be waived only by written instrument executed by the party entitled to enforce such compliance. No such waiver, however, shall be deemed to constitute the waiver of any such covenant or condition in any other circumstance or the waiver of any other covenant or condition. 9. Assignment. This Agreement shall not be assigned by operation of law or otherwise without the prior written consent of each of the parties. 10. Parties in Interest. This Agreement shall be binding upon and inure solely to the benefit of each party hereto and their respective successors and assigns, and nothing in this Agreement, express or implied, is intended to or shall confer upon any other person any right, benefit or remedy of any nature whatsoever under or by reason of this Agreement. 11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original, but all of which together shall constitute one and the same instrument. 12. Governing Law; Waiver of Jury Trial. This Agreement shall be governed by and construed in accordance with the laws of the State of Delaware, without regard to the principles of conflicts of laws thereof. Each of the parties hereto hereby irrevocably waives any and all rights to trial by jury in any legal proceeding arising out of or related to this Agreement. 13. Entire Agreement; Severability. This Agreement (i) constitutes the entire agreement and supersedes all prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof, and (ii) is not intended to confer upon any other persons any rights or remedies hereunder. In case any provision in this Agreement shall be 4 invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby. [SIGNATURE PAGE FOLLOWS] Execution Copy 5 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed and delivered as of the date first written above. E. I. du Pont de Nemours and Company By: /s/ JOHN P. JESSUP ------------------------------- Name: John P. Jessup Title: Vice President and Treasurer DuPont Photomasks, Inc. By: /s/ MARSHALL TURNER ------------------------------- Name: Marshall Turner Title: Chief Executive Officer Toppan Printing Co., Ltd. By: /s/ NAOKI ADACHI ------------------------------- Name: Naoki Adachi Title: President and CEO [SIGNATURE PAGE TO TRANSITION AGREEMENT] -----END PRIVACY-ENHANCED MESSAGE-----