exv10w1






Exhibit 10.1




VOTING AGREEMENT




          This VOTING AGREEMENT (this “Agreement”), dated as of September 29, 2010, is by and
among Danaher Corporation, a Delaware corporation (the “Parent”), Aegean Acquisition Corp.,
an Ohio corporation and an indirect wholly-owned subsidiary of the Parent (the “Merger
Sub”), and Keithley Investment Co. Limited Partnership, an Ohio limited partnership (the
“Stockholder”).




          WHEREAS, the Parent, the Merger Sub and Keithley Instruments, Inc. (the “Company”)
propose to enter into an Agreement and Plan of Merger dated as of the date hereof (as the same may
be amended or supplemented pursuant to the terms thereof, the “Merger Agreement”) providing
for the merger of the Company with and into Merger Sub (the “Merger”), upon the terms and
subject to the conditions set forth in the Merger Agreement;




          WHEREAS, as of the date hereof, the Stockholder beneficially owns the number of Class B Common
Shares set forth opposite the name of the Stockholder on Schedule A hereto (together with
any Common Shares, Class B Common Shares and any other voting securities of the Company that the
Stockholder acquires beneficial ownership of after the date hereof, the “Owned Shares”);




          WHEREAS, as an inducement and a condition to entering into the Merger Agreement, the Parent
has required that the Stockholder agree, and the Stockholder has agreed, to enter into this
Agreement;




          WHEREAS, the Stockholder and the Parent desire to set forth their agreement with respect to
the voting of certain Class B Common Shares upon the terms and subject to the conditions set forth
herein; and




          WHEREAS, capitalized terms used but not defined herein shall have the meanings set forth in
the Merger Agreement.




          NOW, THEREFORE, in consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth below, the parties agree as follows:




     1. Voting; Proxies; Etc.



          (a) Agreement to Vote. The Stockholder hereby agrees that, from and after the date
hereof and until this Agreement shall have been terminated in accordance with Section 6:







 









 








               (i) At any meeting of the stockholders of the Company called for purposes that include
approval of the Merger and adoption of the Merger Agreement, however called, or at any adjournment
or postponement thereof, or in connection with any written consent of the stockholders of the
Company or in any other circumstances in which the stockholders of the Company are entitled to
vote, consent or give any other approval with respect to the Merger and adoption of the Merger
Agreement, the Stockholder shall (a) appear at such meeting or otherwise cause its Covered Shares
(as defined below) to be counted as present thereat for purposes of calculating a quorum, and
respond to each request by the Company for written consent, if any, and (b) vote or cause to be
voted (including by written consent, if applicable) such number of Owned Shares beneficially owned
as of the relevant time that shall equal 19.99% of the voting power (as such term is used in
Chapter 1701 of the Ohio Revised Code) of the Company (the “Covered Shares”), in each case
to the extent such Covered Shares are entitled to be voted and are not so voted pursuant to the
proxy granted in Section 1(b), in favor of adoption of the Merger Agreement and the approval of the
terms thereof and each of the other actions contemplated by the Merger Agreement and this
Agreement. It is understood and agreed that in no event shall Parent or Merger Sub acquire,
directly or indirectly, voting power (as such term is used in Chapter 1701 of the Ohio Revised
Code) of the Company’s Common Shares and Class B Common Shares that, in aggregate, will entitle
Parent and Merger Sub, collectively, to exercise or direct the exercise of the voting power of the
Company in the election of the directors equaling more than 19.99% of such voting power. Nothing
herein shall restrict the right of the Stockholder to vote, consent or give any other approval for
any Owned Shares that are not Covered Shares with respect to any matter in which the Stockholder is
entitled to vote.



               (ii) At any meeting of the stockholders of the Company, however called, or at any adjournment
or postponement thereof, or in connection with any written consent of the stockholders of the
Company, or in any other circumstances in which the Stockholder is entitled to vote, consent or
give any other approval, the Stockholder shall vote or cause to be voted (including by written
consent, if applicable) the Covered Shares against the following actions:




     (1) any proposal that would result in a breach by the Company of the Merger Agreement
or by the Stockholder hereunder; or




     (2) any action or agreement that is intended to, or would be reasonably likely to,
impede, interfere with, delay, postpone or attempt to discourage the Merger, including, but
not limited to: (A) the adoption or approval by the Company of any Company Takeover
Proposal; (B) any amendment of the Company’s articles of incorporation or code of
regulations; (C) any material change in the present capitalization or dividend policy of the
Company; or (D) any other material change in the Company’s corporate structure or business.



          (b) Proxies. As security for the agreements of the Stockholder provided for herein,
the Stockholder hereby grants, in accordance with Section 1701.48 of the Ohio Revised Code, to the
Merger Sub a proxy for the term of this Agreement to vote the Covered Shares as






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indicated in Section 1(a) above. The Stockholder agrees that this proxy shall be irrevocable
during the term of this Agreement and coupled with an interest and each of the Stockholder and the
Merger Sub will take such further action or execute such other instruments as may be necessary to
effectuate the intent of this proxy and the Stockholder hereby revokes any proxy previously granted
by the Stockholder with respect to the Covered Shares. The irrevocable proxy granted hereunder
shall automatically terminate upon the termination of this Agreement.




          (c) Transfer Restrictions. The Stockholder agrees not to directly or indirectly (i)
sell, transfer, grant, pledge, encumber, assign or otherwise dispose of or hypothecate (including
by gift or by contribution or distribution to any trust or similar instrument (collectively,
“Transfer”)), or enter into any contract, option or other arrangement or understanding
(including any profit sharing arrangement) with respect to the Transfer of, any of the Owned Shares
other than pursuant to the terms hereof and the Merger Agreement, (ii) enter into any voting
arrangement or understanding with respect to the Owned Shares (other than this Agreement), whether
by proxy, voting agreement or otherwise, (iii) convert the Stockholder’s Class B Common Shares into
Common Shares or (iv) take any action that would reasonably be expected to make any of its
representations or warranties contained herein untrue or incorrect in any material respect or would
have the effect of preventing or disabling the Stockholder from performing any of its obligations
hereunder. Any action attempted to be taken in violation of the preceding sentence will be null and
void.




          (d) Appraisal Rights. The Stockholder hereby irrevocably waives any and all rights
which he or she may have as to appraisal, dissent or any similar or related matter with respect to
the Merger.




          (e) No Solicitation. The Stockholder acknowledges and agrees that it will be deemed a
Company Representative for purposes of Section 4.2(a) of the Merger Agreement and agrees to be
bound by and to comply with the provisions of Section 4.2(a) of the Merger Agreement as if the
Stockholder was a party to the Merger Agreement. Nothing in this Agreement shall restrict the
activities of Joseph P. Keithley in his capacity as a director of the Company.




          (f) Recommendation Change. The Stockholder acknowledges and agrees that, during the
term of this Agreement, the obligations of the Stockholder specified in this Section 1 shall not be
affected by any withdrawal, qualification or modification of the recommendation by the Company or
its board of directors relating to the Merger.




     2. Representations and Warranties of the Stockholder. The Stockholder hereby
represents and warrants to the Parent and the Merger Sub as of the date hereof as follows:



          (a) Authorization; Validity of Agreement; Necessary Action. The Stockholder has all
necessary power and authority to execute and deliver this Agreement, to






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perform the Stockholder’s obligations hereunder and to consummate the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by the
Stockholder, and constitutes the legal, valid and binding obligation of the Stockholder,
enforceable against the Stockholder in accordance with its terms, except as the enforcement thereof
may be limited by applicable bankruptcy, insolvency, reorganization, moratorium or similar Laws
affecting the rights of creditors generally and subject to general equity principles.




          (b) No Violations; Consents and Approvals.




               (i) Except for filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, any applicable Antitrust Laws and Sections 13(d) and
16 of the Exchange Act, neither the execution, delivery or performance of this Agreement by the
Stockholder nor the consummation by the Stockholder of the transactions contemplated hereby nor
compliance by the Stockholder with any of the provisions hereof will directly or indirectly (with
or without notice or lapse of time or both): (A) contravene, conflict with, or result in a
violation of, or give any Governmental Entity or other Person the right to exercise any remedy or
obtain any relief under, any governmental regulation or any order, injunction, writ or decree to
which the Stockholder, or any of the Stockholder’s assets, may be subject, or (B) require a
consent, approval, ratification, permission, order or authorization from any Person; except, in the
case of clauses (A) and (B), for any such conflicts, violations, breaches, defaults or other
occurrences that would not prevent or impair the ability of the Stockholder from consummating the
transactions contemplated hereby in any material respect, or otherwise prevent the Parent or the
Merger Sub from exercising their respective rights under this Agreement in any material respect.



               (ii) The execution and delivery of this Agreement by the Stockholder does not, and the
performance of this Agreement and the consummation of the transactions contemplated hereby will
not, require any consent, approval, license, permit, order, declaration or authorization of, or
registration or filing with or notification to, any Governmental Entity, except (A) for the
pre-merger notification requirements of applicable Antitrust Laws and applicable filings under
Sections 13(d) and 16 of the Exchange Act, and (B) where failure to obtain such consent, approval,
license, permit, order, declaration, authorization or registration, or to make such filings or
notifications, would not prevent or impair the ability of the Stockholder from consummating the
transactions contemplated hereby in any material respect, or otherwise prevent the Parent or the
Merger Sub from exercising their respective rights under this Agreement in any material respect.



          (c) Shares. The Owned Shares are owned of record by the Stockholder. Except as set
forth on Schedule A, the Stockholder does not own, of record or beneficially, any warrants,
options or other rights to acquire any other voting securities of the Company. The Stockholder has
and will continue to have during the term hereof, sole voting power, sole power of disposition,
sole power to issue instructions with respect to the matters set forth in Section 1 hereof, sole
power of conversion, sole power to demand appraisal rights and sole power to agree to all of the
matters set forth in this Agreement, in each case with respect to all of the Owned






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Shares with no limitations, qualifications or restrictions on such rights, subject to
applicable federal securities laws and the terms of this Agreement. The Stockholder has good and
valid title to the Owned Shares and at all times during the term hereof and on the Closing Date
will have good and valid title to the Covered Shares, free and clear of all liens, claims, security
interests or other charges or encumbrances.




          (d) No Broker’s Fees. Except as disclosed in the Merger Agreement, no broker, finder,
investment banker or other Person is entitled to any broker’s, finder’s or other fee or commission
in connection with the transactions contemplated hereby based upon arrangements made by or on
behalf of the Stockholder.




          (e) Reliance. The Stockholder acknowledges and agrees that each of the Parent and the
Merger Sub are entering into the Merger Agreement and the transactions contemplated therein in
reliance upon the Stockholder’s execution and delivery of this Agreement.




     3. Representations and Warranties of Parent and Merger Sub. The Parent and the Merger
Sub, jointly and severally, hereby represent and warrant to the Stockholder as of the date hereof
as follows:



          (a) Organization. Each of the Parent and the Merger Sub is a corporation duly
organized, validly existing and in good standing under the laws of the jurisdiction of its
incorporation.




          (b) Corporate Authorization; Validity of Agreement; Necessary Action. Each of the
Parent and the Merger Sub has all necessary corporate power and authority to execute and deliver
this Agreement, to perform its obligations hereunder and to consummate the transactions
contemplated hereby. The execution, delivery and performance by each of the Parent and the Merger
Sub of this Agreement and the consummation by them of the transactions contemplated hereby have
been duly and validly authorized by all necessary corporate action and no other corporate
proceedings on the part of the Parent or the Merger Sub are necessary to authorize the execution
and delivery by them of this Agreement and the consummation by them of the transactions
contemplated hereby. This Agreement has been duly and validly executed and delivered by the Parent
and the Merger Sub, and constitutes the legal, valid and binding obligation of the Parent and
Merger Sub, enforceable against each of them in accordance with its terms, except as the
enforcement thereof may be limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar Laws affecting the rights of creditors generally and subject to general equity
principles.




          (c) No Violations; Consents and Approvals.








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               (i) Except for filings, permits, authorizations, consents and approvals as may be required
under, and other applicable requirements of, any applicable Antitrust Laws, neither the execution,
delivery or performance of this Agreement by the Parent or the Merger Sub nor the consummation by
them of the transactions contemplated hereby nor compliance by them with any of the provisions
hereof will directly or indirectly (with or without notice or lapse of time or both): (i)
contravene, conflict with or result in a violation of (A) any provision of the charter, by-laws or
other organizational document of the Parent or the Merger Sub, or (B) any resolution adopted by the
board of directors or the stockholders of the Parent or the Merger Sub; (ii) contravene, conflict
with, or result in a violation of, or give any Governmental Entity or other Person the right to
exercise any remedy or obtain any relief under, any governmental regulation or any order,
injunction, writ or decree to which the Parent or the Merger Sub, or any of the respective assets
owned or used by each of them, may be subject, or (iii) require a consent, approval, ratification,
permission, order or authorization from any Person; except, in the case of clauses (ii) and (iii),
for any such conflicts, violations, breaches, defaults or other occurrences that would not prevent
or impair the ability of the Parent or the Merger Sub from consummating the transactions
contemplated hereby in any material respect, or otherwise prevent the Parent or the Merger Sub from
exercising their respective rights under this Agreement in any material respect.



               (ii) The execution and delivery of this Agreement by the Parent and the Merger Sub does not,
and the performance of this Agreement and the consummation of the transactions contemplated hereby
will not, require any consent, approval, license, permit, order, declaration or authorization of,
or registration or filing with or notification to, any Governmental Entity, except (i) for the
pre-merger notification requirements of applicable Antitrust Laws, and (ii) where failure to obtain
such consent, approval, license, permit, order, declaration, authorization or registration, or to
make such filings or notifications, would not prevent or impair the ability of the Parent or the
Merger Sub from consummating the transactions contemplated hereby in any material respect, or
otherwise prevent the Parent or the Merger Sub from exercising their respective rights under this
Agreement in any material respect.



     4. Further Agreement of the Stockholders. The Stockholder hereby authorizes and
requests the Company’s counsel to notify the Company’s transfer agent that there is a stop transfer
order with respect to all of the Covered Shares (and that this Agreement places limits on the
voting of the Covered Shares). The Stockholder agrees with, and covenants to, the Parent that the
Stockholder shall not request that the Company register the transfer (book-entry or otherwise) of
any certificate or uncertificated interest representing any of the Covered Shares, unless such
transfer is made in compliance with this Agreement. In the event of a stock dividend or
distribution, or any change in any of the Covered Shares by reason of any stock dividend or
distribution, or any change in any of the Covered Shares by reason of any stock dividend, split-up,
recapitalization, combination, exchange of shares or the like, the term “Covered Shares” shall be
deemed to refer to and include the Covered Shares as well as all such stock dividends and
distributions and any shares into which or for which any or all of the Covered Shares may be
changed or exchanged; provided, however, that in no event shall the Covered Shares, as adjusted by
reason of any stock dividend, distribution, split-up, recapitalization, combination, exchange of



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shares or the like, exceed 19.99% of the voting power (as such term is used in Chapter 1701 of
the Ohio Revised Code) of the Company.




     5. Further Assurances. From time to time prior to the Closing, at any other party’s
request and without further consideration, each party hereto shall execute and deliver such
additional documents and take all such further lawful action as may be necessary or desirable to
consummate and make effective, in the most expeditious manner practicable, the transactions
contemplated by this Agreement. Without limiting the generality of the foregoing, each party
hereto shall cooperate with the other parties hereto in preparing and filing any notifications
required under any applicable Antitrust Laws in connection with the transactions contemplated
hereby.



     6. Termination. The obligations of the parties under this Agreement shall terminate
upon the earliest to occur of (a) the Effective Time, (b) the termination of the Merger Agreement
in accordance with its terms and (c) at the option of the Stockholder, the execution or granting of
any amendment, modification, change or waiver with respect to the Merger Agreement subsequent to
the date of this Agreement that results in any decrease in the price to be paid per share for the
Common Shares and/or Class B Common Shares or any changes in the form of consideration to be
received by the holders of such shares in the Merger or is otherwise adverse to the stockholders of
the Company. Nothing in this Section 6 shall relieve any party of liability for failure to perform
its covenants under this Agreement.



     7. Costs and Expenses. All costs and expenses incurred in connection with this
Agreement and the consummation of the transactions contemplated hereby shall be paid by the party
incurring such expenses.



     8. Amendment and Modification. This Agreement may be amended, modified and
supplemented in any and all respects only by written agreement of the parties hereto.



     9. Notices. All notices and other communications hereunder shall be in writing and
shall be deemed given if delivered personally, telecopied (which is confirmed) or sent by an
overnight courier service (providing proof of delivery) to the parties at the following addresses
(or at such other address for a party as it may specify by like notice):



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            (i) if to the Parent or the Merger Sub, to:


Danaher Corporation

2099 Pennsylvania Avenue, 12th Floor

Washington, DC 20006-1813

Attention: Chief Counsel, Mergers & Acquisitions

Facsimile: (202) 828-0860



with a copy to:



Skadden, Arps, Slate, Meagher & Flom LLP

Four Times Square

New York, NY 10036

Attn: Joseph A. Coco, Esq.

Thomas W. Greenberg, Esq.

Facsimile: (212) 735-2000




            (ii) if to the Stockholder, to the address(es) set forth on Schedule A hereto.



     10. Interpretation. When a reference is made in this Agreement to Sections, such
reference shall be to a Section of this Agreement unless otherwise indicated. Whenever the words
“include,” “includes” or “including” are used in this Agreement they shall be deemed to be followed
by the words “without limitation.” The phrases “the date of this Agreement,” “the date hereof,”
and terms of similar import, unless the context otherwise requires, shall be deemed to refer to
September 29, 2010.



     11. Counterparts. This Agreement may be executed in two or more counterparts, all of
which shall be considered one and the same agreement and shall become effective when two or more
counterparts have been signed by each of the parties and delivered to the other parties, it being
understood that all parties need not sign the same counterpart.



     12. Entire Agreement; No Third Party Beneficiaries. This Agreement constitutes the
entire agreement and supersedes all prior agreements and understandings, both written and oral,
among the parties with respect to the subject matter hereof, and is not intended to confer upon any
person other than the parties hereto any rights or remedies hereunder.



     13. 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.



          All rights, powers and remedies provided under this Agreement or otherwise available in
respect hereof at law or in equity shall be cumulative and not alternative, and the






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exercise of any thereof by any party shall not preclude the simultaneous or later exercise of
any other such right, power or remedy by such party.




     14. Governing Law. This Agreement shall be governed and construed in accordance with
the laws of the State of Ohio without giving effect to the principles of conflicts of law thereof.



     15. Assignment. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any of the parties hereto (whether by operation of law
or otherwise) without the prior written consent of the other parties, except that the Parent and
the Merger Sub may assign, in the Parent’s sole discretion, any or all of their respective rights,
interests and obligations hereunder to any direct or indirect wholly owned Subsidiary of the
Parent; provided, however, that no such assignment shall relieve the Parent from any of its
obligations hereunder. Subject to the preceding sentence, this Agreement will be binding upon,
inure to the benefit of and be enforceable by the parties and their respective successors
(including the Company as successor to the Merger Sub pursuant to the Merger), heirs, agents,
representatives, trust beneficiaries, attorneys, affiliates and associates and all of their
respective predecessors, successors, permitted assigns, heirs, executors and administrators.



     16. Consent to Jurisdiction; Waiver of Jury Trial; Specific Performance.



          (a) In any action or proceeding between any of the parties arising out of or relating to this
Agreement or any of the transactions contemplated by this Agreement, each of the parties: (a)
irrevocably and unconditionally consents and submits to the exclusive jurisdiction and venue of the
federal or state courts located in Cleveland, Ohio, and (b) agrees that all claims in respect of
such action or proceeding may be heard and determined exclusively in such courts.




          (b) EACH PARTY HERETO HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL
ACTION OR PROCEEDING IN RELATION TO THIS AGREEMENT AND FOR ANY COUNTERCLAIM THEREIN.




          (c) The parties acknowledge and agree that the Parent, the Merger Sub and the Stockholder
would be irreparably damaged if any of the provisions of this Agreement are not performed in
accordance with their specific terms and that any breach of this Agreement could not be adequately
compensated in all cases by monetary damages alone. Accordingly, in addition to any other right or
remedy to which the Parent, the Merger Sub or the Stockholder may be entitled, at law or in equity,
it shall be entitled to enforce any provision of this Agreement by a decree of specific performance
and temporary, preliminary and permanent injunctive relief to prevent breaches or threatened
breaches of any of the provisions of this Agreement, without posting any bond or other undertaking.







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[Remainder of Page Intentionally Left Blank]




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          IN WITNESS WHEREOF, the Parent, the Merger Sub and the Stockholder have caused this Agreement
to be signed by their respective officers or other authorized person thereunto duly authorized as
of the date first written above.




	 	 	 	 	 
	 	KEITHLEY INVESTMENT CO. LIMITED PARTNERSHIP

 
	 	By:  	/s/ Joseph P. Keithley
 	 
	 	 	Name:  	Joseph P. Keithley 	 
	 	 	Title:  	General Partner 	 
	 
	 	DANAHER CORPORATION

 	 
	 	By:  	/s/ Daniel A. Raskas
 	 
	 	 	Name:  	Daniel A. Raskas 	 
	 	 	Title:  	Senior Vice President — Corporate Development 
	 
	 	AEGEAN ACQUISITION CORP.

 	 
	 	By:  	/s/ Daniel A. Raskas
 	 
	 	 	Name:  	Daniel A. Raskas 	 
	 	 	Title:  	Vice President	 
	 














 





Schedule A



Number of Owned Shares: 0 Common Shares; 1,954,816 Class B Common Shares.



Description of any warrants, options or other rights to purchase voting securities of the Company:



None





Address(es) for notices and other communications pursuant to Section 9 of the Agreement




Keithley Investment Co. Limited Partnership

28775 Aurora Road

Solon, OH 44139

Attention:       Joseph P. Keithley, General Partner

Facsimile:       (440) 542-8007




with a copy to:




Jones Day

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114

Attention: James P. Dougherty

Facsimile: 216-579-0212