EXHIBIT 5.2
COMPANY STOCKHOLDERS
VOTING AGREEMENT
COMPANY STOCKHOLDERS VOTING AGREEMENT (this "AGREEMENT"),
dated February 29, 2000, among each of the individuals and entities listed on
SCHEDULE A to this Agreement (each, a "COMPANY STOCKHOLDER" and collectively,
the "COMPANY STOCKHOLDERS") and Veeco Instruments Inc., a Delaware corporation
("VEECO").
WHEREAS, Veeco Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Veeco ("ACQUISITION"), and CVC, Inc., a Delaware
corporation (the "COMPANY") propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended, supplemented or
modified in accordance with its terms, the "MERGER AGREEMENT") providing for the
merger of Acquisition into the Company (the "MERGER");
WHEREAS, capitalized terms used in this Agreement but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement;
WHEREAS, this Agreement is the Company Stockholders Voting
Agreement contemplated by and referred to in the Merger Agreement;
WHEREAS, each Company Stockholder owns the number of Existing
Company Shares (as defined) set forth opposite such Company Stockholder's name
on SCHEDULE A hereto and the Company Stockholders collectively own in the
aggregate 6,086,749 Existing Company Shares (as defined);
WHEREAS, as a condition to the willingness of Veeco to enter
into the Merger Agreement, Veeco has requested that the Company Stockholders
enter into this Agreement.
NOW THEREFORE, to induce Veeco to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement, intending to be legally bound,
hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
1.1. "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned
by all other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d) of the Exchange Act with respect to securities of the
same issuer.
1.2. "COMPANY SHARES" with respect to any Company Stockholder,
shall mean such Company Stockholder's Existing Company Shares and any shares of
Company Common Stock and/or other Equity Securities of, or equity interest in,
the Company acquired by the Company Stockholder in any capacity after the date
of this Agreement and prior to the termination of this Agreement, whether upon
the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution, split-up, recapitalization, combination, exchange of shares or the
like, gift, bequest, inheritance or as a successor in interest in any capacity
or otherwise Beneficially Owned by such Company Stockholder, in each case, if
and to the extent entitled to be voted.
1.3. "EXISTING COMPANY SHARES" with respect to any Company
Stockholder, means all shares of Company Common Stock Beneficially Owned by such
Company Stockholder on the date of this Agreement, in each case, if and to the
extent entitled to be voted..
1.4. "IRREVOCABLE PROXY" shall mean a Company Stockholder
Power of Attorney and Irrevocable Proxy in the form of EXHIBIT A attached to
this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
2.1. ENTITY COMPANY STOCKHOLDER REPRESENTATIONS AND
WARRANTIES. Each Company Stockholder that is a legal entity, or otherwise not an
individual Person, hereby represents and warrants to Veeco as follows:
(a) AUTHORITY. Such Company Stockholder is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization. Such Company Stockholder has all power and authority necessary to
enable it to enter into this Agreement and to carry out the transactions
contemplated by this Agreement and such Company Stockholder's Irrevocable Proxy.
This Agreement and such Company Stockholder's Irrevocable Proxy have been duly
and validly authorized, executed and delivered by such Company Stockholder and
each constitutes such Company Stockholder's legal, valid and binding obligation,
enforceable against it in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement or such Company Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Company
Stockholder's Irrevocable Proxy or by any document to be delivered in accordance
herewith or therewith will violate, result in a breach of, or constitute a
default (or an event which, with notice or lapse of time or both would
constitute a default) under, (i) such Company Stockholder's certificate of
incorporation, limited partnership agreement or other organizational, governing
or constating documents, (ii) any agreement or instrument to which such Company
Stockholder is a party or by which it is bound, or (iii) any Law,
2
or any order, rule or regulation of any court or Governmental Authority or other
regulatory organization having jurisdiction over it.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is required
for (i) the execution and delivery of this Agreement and such Company
Stockholder's Irrevocable Proxy by such Company Stockholder, (ii) the
performance by such Company Stockholder of its obligations under this Agreement
and such Company Stockholder's Irrevocable Proxy or (iii) the consummation by
such Company Stockholder of the transactions contemplated by this Agreement and
such Company Stockholder's Irrevocable Proxy.
2.2. INDIVIDUAL COMPANY STOCKHOLDER REPRESENTATIONS AND
WARRANTIES. Each Company Stockholder that is an individual hereby represents and
warrants to Veeco as follows:
(a) AUTHORITY. Such Company Stockholder has full capacity and
authority to enter into this Agreement and such Company Stockholder's
Irrevocable Proxy, and to carry out the transactions contemplated hereby and
thereby. This Agreement and such Company Stockholder's Irrevocable Proxy have
been duly executed and delivered by such Company Stockholder and each
constitutes a legal, valid and binding obligation of such Company Stockholder
enforceable against such Company Stockholder in accordance with its terms.
(b) NON-CONTRAVENTION. None of the execution and delivery of
this Agreement or such Company Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Company
Stockholder's Irrevocable Proxy or by any document to be delivered in accordance
herewith or therewith will violate, result in a breach of, or constitute a
default (or an event which, with notice or lapse of time or both would
constitute a default) under, (i) any agreement or instrument to which such
Company Stockholder is a party or by which such Company Stockholder is bound,
(ii) any Law, or any order, rule or regulation of any court or Governmental
Authority or other regulatory organization having jurisdiction over such Company
Stockholder.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is necessary
or required (i) for the execution and delivery of this Agreement or such Company
Stockholder's Irrevocable Proxy by such Company Stockholder, (ii) the
performance by such Company Stockholder of such Company Stockholder's
obligations under this Agreement or such Company Stockholder's Irrevocable Proxy
or (iii) the consummation by such Company Stockholder of the transactions
contemplated hereby or by such Company Stockholder's Irrevocable Proxy.
2.3. COMPANY STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each
Company Stockholder hereby represents and warrants to Veeco as follows:
(a) OWNERSHIP OF EXISTING COMPANY SHARES. Such Company
Stockholder is the record and Beneficial Owner of the number of Existing Company
Shares set forth opposite such
3
Company Stockholder's name on SCHEDULE A to this Agreement. On the date of this
Agreement, such Existing Company Shares constitute all of the shares of Company
Common Stock owned of record or Beneficially Owned by such Company Stockholder.
(b) LIENS AND RESTRICTIONS ON EXISTING COMPANY SHARES. Such
Company Stockholder owns the number of Existing Company Shares set forth
opposite such Company Stockholder's name on SCHEDULE A hereto, free and clear of
any Liens, claims, security interests, proxies, voting trusts or agreements,
restrictions, qualifications, limitations, understandings or arrangements which
would in any way restrict or impair such Company Stockholder's right to vote
such Existing Company Shares in his, her or its sole discretion, or could
require such Company Stockholder to sell or transfer any of such Existing
Company Shares (whether upon default on a loan or otherwise) before the
Effective Time.
(c) VOTING POWER OVER EXISTING COMPANY SHARES. Such Company
Stockholder has sole voting power and sole power to issue instructions and sole
power to agree to the matters set forth in this Agreement with respect to all of
such Company Stockholder's Existing Company Shares.
(d) SURVIVAL. The obligations of such Company Stockholder
under this Agreement shall survive the death, disability or incapacity of such
Company Stockholder.
2.4. VEECO REPRESENTATIONS AND WARRANTIES. Veeco hereby
represents and warrants to the Company Stockholders as follows:
(a) AUTHORITY. Veeco is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Veeco has
all power and authority necessary to enable it to enter into this Agreement and
to carry out the transactions contemplated by this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by Veeco and
constitutes a legal, valid and binding obligation of Veeco enforceable against
Veeco in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement by Veeco nor the consummation of the transactions contemplated by
this Agreement will violate, result in a breach of, or constitute a default (or
an event which, with notice or lapse of time or both would constitute a default)
under, the certificate of incorporation or by-laws of Veeco.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is required
for (i) the execution and delivery of this Agreement by Veeco, (ii) the
performance by Veeco of its obligations under this Agreement or (iii) the
consummation by Veeco of the transactions contemplated by this Agreement.
4
SECTION 3. COVENANTS OF THE COMPANY STOCKHOLDERS.
3.1. VOTE FOR MERGER. At any meeting of stockholders of the
Company called to vote upon the Merger and the Merger Agreement or any of the
transactions contemplated by the Merger Agreement, or at any adjournment or
postponement thereof, or in any other circumstances upon which a vote, Consent
or other approval with respect to the Merger and the Merger Agreement is sought,
each Company Stockholder's Company Shares shall be counted as present thereat
for purposes of establishing a quorum and shall be voted or Consented (or caused
to be voted or Consented) in favor of the Merger, the adoption by the Company of
the Merger Agreement, other matters relating to the approval of the terms of the
Merger Agreement and each of the other transactions contemplated by the Merger
Agreement.
3.2. VOTE AGAINST CERTAIN MATTERS. Prior to the Effective
Time, at any meeting of stockholders of the Company or at any adjournment or
postponement thereof or in any other circumstances upon which a Company
Stockholder's vote, Consent or other approval is sought, such Company
Stockholder's Company Shares shall be counted as present thereat for purposes of
establishing a quorum and shall be voted or Consented (or caused to be voted or
Consented) against any proposal or transaction involving the Company or any of
its Subsidiaries if such transaction or proposal would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement; PROVIDED, that nothing
set forth in this Section 3.2 is intended or shall be construed to restrict or
impair the right of a Company Stockholder to vote or Consent (or cause to be
voted or Consented) any Company Shares owned of record or Beneficially Owned by
such Company Stockholder (i) in favor of any Company Acquisition Proposal or
related Company Acquisition Transaction or (ii) in the election of any director
of the Company.
3.3. EXECUTION AND DELIVERY OF IRREVOCABLE PROXIES. In order
to effectuate the voting arrangements contemplated by Section 3.1 and Section
3.2 hereof, contemporaneously with the execution and delivery by the parties
hereto of this Agreement, and as a condition to such execution and delivery by
Veeco, each Company Stockholder is delivering to Veeco an Irrevocable Proxy duly
executed by or on behalf of such Company Stockholder.
3.4. TRANSFERS; OTHER VOTING ARRANGEMENTS INCONSISTENT
ACTIONS.
(a) TRANSFEREES BOUND. It shall be a condition precedent to
any direct or indirect sale, transfer, pledge, assignment or other disposition
of, or entry into any Contract, option or other arrangement with respect to the
sale, transfer, pledge, assignment or other disposition of, any Company Shares
by a Company Stockholder (any of the foregoing, whether voluntary or
involuntary, by operation of Law or otherwise a "TRANSFER") to any Person (the
"TRANSFEREE") that (A) the Company Stockholder desiring to effect such Transfer
provide to the proposed Transferee in connection therewith a copy of this
Agreement and the Irrevocable Proxy and (B) such Transferee shall agree, prior
to the consummation of such Transfer, to become bound by this Agreement and such
Company Stockholder's Irrevocable Proxy and subject to the terms, conditions and
restrictions
5
hereof and thereof in the same manner as the Company Stockholder desiring to
effect such Transfer, by executing a writing to such effect in form and
substance satisfactory to Veeco.
(b) OTHER VOTING ARRANGEMENTS, ETC. No Company Stockholder
shall, directly or indirectly, enter into any voting arrangement, whether by
proxy, voting arrangement, voting agreement, voting trust or otherwise with
respect to any Company Shares owned of record or Beneficially Owned by such
Company Stockholder other than as contemplated under and as required by this
Agreement and such Company Stockholder's Irrevocable Proxy.
(c) INCONSISTENT ACTIONS; NON-INTERFERENCE. No Company
Stockholder shall, directly or indirectly, take any action that would or could
reasonably be expected to (A) make any representation or warranty of the Company
Stockholder contained herein untrue or incorrect, or (B) result in a breach by
the Company Stockholder of its obligations under this Agreement, or (C) result
in a breach by the Company of its obligations under the Merger Agreement, or (D)
invalidate or in any way limit the enforceability by the Proxyholders (as
defined in the Irrevocable Proxy) of such Company Stockholder's Irrevocable
Proxy, or (E) have an effect that would be inconsistent with, or violative of,
any provision or agreement contained in the Merger Agreement.
SECTION 4. COVENANTS RELATING TO CONFIDENTIALITY AND DISCLOSURE.
4.1. CONFIDENTIALITY. Each Company Stockholder recognizes that
successful consummation of the transactions contemplated by this Agreement and
the Merger Agreement may be dependent upon the maintenance of strict
confidentiality with respect to the matters referred to herein and therein. In
this connection, pending public disclosure thereof by Veeco or the Company, each
Company Stockholder hereby agrees not to disclose or discuss such matters with
anyone not a party to this Agreement or the Merger Agreement (other than to its
and to the Company's counsel and advisors) without the prior written consent of
Veeco, except for filings, if any, required pursuant to the Exchange Act and the
rules and regulations promulgated thereunder or disclosures that such Company
Stockholder's counsel advises are necessary in order to fulfill such Company
Stockholder's obligations imposed by Law, in which event such Company
Stockholder shall give prior notice of such disclosure to Veeco as promptly as
practicable so as to enable Veeco to seek a protective order from a court of
competent jurisdiction with respect thereto or similar relief in connection
therewith.
4.2. DISCLOSURE. Each Company Stockholder hereby agrees to
permit the Company and Veeco to publish and disclose in the Form S-4
Registration Statement and the Joint Proxy Statement (including all documents,
exhibits and schedules filed with the SEC), and any press release or other
disclosure document which Veeco or the Company determine to be necessary or
desirable in connection with the Merger and the transactions related thereto,
such Company Stockholder's identity and ownership of Company Common Stock or
Veeco Shares, as the case may be, and the nature of its commitments,
arrangements and understandings under this Agreement and such Company
Stockholder's Irrevocable Proxy.
6
SECTION 5. CERTAIN ADDITIONAL COVENANTS OF THE COMPANY
STOCKHOLDERS.
5.1. NO SOLICITATION. Each Company Stockholder shall not, and
shall cause its Affiliates and Representatives not to, directly or indirectly,
take any action to initiate, solicit, encourage or facilitate the making of any
Company Acquisition Proposal or any inquiry with respect thereto, or engage in
discussions or negotiations with any Person (other than Veeco or any of its
Affiliates or Representatives) relating to any Company Acquisition Proposal or
disclose any non-public information relating to the Company or any Subsidiary of
the Company or afford access to the properties, books or records of the Company
or any Subsidiary of the Company, to any Person that has made a Company
Acquisition Proposal. A Company Stockholder shall notify Veeco orally and in
writing of any offers, proposals or inquiries received by such Company
Stockholder relating to the purchase or acquisition by any Person of any Company
Shares and of any Company Acquisition Proposal actually known to such Company
Stockholder (including, in each case, the material terms and conditions thereof
and the identity of the Person making it), within 24 hours of receipt thereof.
Each Company Stockholder shall and shall cause its Representatives to,
immediately cease and cause to be terminated any and all existing activities,
discussions and negotiations, if any, with any parties conducted heretofore with
respect to any Company Acquisition Proposal, other than discussions or
negotiations with Veeco or its Affiliates or Representatives. Notwithstanding
the restrictions set forth in this Section 5.1, each of the Company and any
Person (including any Company Stockholder) who is an officer or director of the
Company may take any action in such capacity that is consistent with the terms
of the Merger Agreement.
5.2. RELIANCE. Each Company Stockholder understands and
acknowledges that Veeco is entering into the Merger Agreement in reliance upon
such Company Stockholder's execution and delivery of this Agreement and such
Company Stockholder's Irrevocable Proxy.
5.3. AFFILIATE AGREEMENT. Each Company Stockholder, if
requested by Veeco prior to the Effective Time, will duly execute and deliver to
Veeco a Company Affiliate Agreement contemplated by Section 5.21(a) of the
Merger Agreement.
SECTION 6. TERMINATION.
6.1. TERMINATION OF AGREEMENT. The provisions of this
Agreement shall terminate and be of no further force or effect upon the earlier
to occur of (a) the termination of the Merger Agreement in accordance with its
terms and (b) the Effective Time of the Merger.
SECTION 7. MISCELLANEOUS.
7.1 EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring the expense.
7
7.2 ENTIRE AGREEMENT. This Agreement and any documents to be
delivered in accordance with this Agreement (including the Irrevocable Proxies
of the Company Stockholders) contain the entire agreement among the parties
relating to the transactions which are the subject of this Agreement, and all
prior and contemporaneous negotiations, understandings and agreements among the
parties (whether written or oral) with regard to the subject matter of this
Agreement are superseded by this Agreement, and there are no representations,
warranties, understandings or agreements concerning the transactions which are
the subject of this Agreement or those other documents other than those
expressly set forth in this Agreement.
7.3 CAPTIONS. The captions of the articles and paragraphs of
this Agreement are for reference only, and do not affect the meaning or
interpretation of this Agreement.
7.4. BINDING AGREEMENT; ASSIGNMENT.
(a) BINDING AGREEMENT. Each Company Stockholder agrees that
this Agreement and the obligations hereunder shall attach to the Company Shares
and shall be binding upon any Person to which record or Beneficial Ownership of
such Company Shares shall pass, wether by operation of Law or otherwise,
including, without limitation, the Company Stockholder's heirs, distributees,
guardians, administrators, executors, legal representatives, or successors,
partners or other transferees (for value or otherwise) and any other successors
in interest. Notwithstanding any transfer of Company Shares, the transferor
shall remain liable for the performance of all obligations under this Agreement
of the transferor.
(b) ASSIGNMENT. Notwithstanding anything to the contrary set
forth herein, no party may assign any of its rights or obligations hereunder, by
operation of Law or otherwise, without the prior written consent of the other
party; provided, that Veeco may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Veeco, but no such assignment shall relieve Veeco of its obligations hereunder
if such assignee does not perform such obligations.
7.5. NOTICES AND OTHER COMMUNICATIONS. Any notice or other
communication under this Agreement must be in writing and will be deemed given
when delivered in person or sent by facsimile (with proof of receipt at the
number to which it is required to be sent), or on the third business day afer
the day on which mailed by first class mail from within the United States of
America, to the following addresses (or such other address as may be specified
after the date of this Agreement by the party to which the notice or
communication is sent):
8
If to Veeco:
Veeco Instruments Inc.
Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Chairman, President and Chief Executive Officer
Facsimile No: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to any Company Stockholder, to such Company Stockholder at
the address set forth under such Company Stockholder's signature on the
signature pages to this Agreement.
with a copy to:
Xxxxx Xxxxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
7.6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF
LAWS DOCTRINES.
7.7. AMENDMENTS. Prior to the Effective Time, this Agreement
may be amended only by a document in writing signed by Veeco and each Company
Stockholder.
7.8. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, some of which may contain the signatures of some, but not
all, the parties hereto. Each of those counterparts will be deemed an original,
but all of them together will constitute one and the same Agreement.
7.9. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will
9
be fully severable, (ii) this Agreement will be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part
hereof, (iii) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
7.10. ENFORCEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties hereto shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any Federal
court located in the State of Delaware or in a Delaware state court, this being
in addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in any action or proceeding relating to or arising out of
this Agreement (including, with respect to a Company Stockholder, such Company
Stockholder's Irrevocable Proxy) or any of the transactions contemplated hereby,
(ii) agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (iii)
agrees that such parties will not seek to change the venue of any such action or
proceeding or otherwise to move any such action or proceeding to another court,
whether because of inconvenience of the forum or otherwise (provided that
nothing in this Section will prevent a party from removing an action or
proceeding from a Delaware state court to a Federal court located in the State
of Delaware), (iv) agrees that such party will not bring any action relating to
this Agreement or any Irrevocable Proxy or any of the transactions contemplated
hereby or thereby in any court other than a Federal court sitting in the State
of Delaware or a Delaware state court and (v) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any Irrevocable Proxy or any of the transactions contemplated
hereby or thereby.
7.11. FURTHER ASSURANCES. From time to time, at the 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 and the Irrevocable Proxies.
10
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be signed by its officer thereunto duly authorized as of the date
in the first paragraph of this Agreement.
VEECO
VEECO INSTRUMENTS INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chief Executive Officer
COMPANY STOCKHOLDERS
SEAGATE TECHNOLOGY, INC.
By: /s/ Xxxxxx X. Xxxxx
---------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice Pres.
Seagate Technology, Inc.'s
Address for Notice:
000 Xxxx Xxxxx
------------------------------------
Xxxxxx Xxxxxx, XX 00000
------------------------------------
Attention: Xxxxxxx Xxxxxx
--------------------------
Facsimile No.: 000-000-0000
----------------------
11
NIKKO TECNO CO., INC.
By: /s/ Seiya Miyanishi
---------------------------------
Name: Seiya Miyanishi
Title: President
Nikko Tecno Co., Inc.
Address for Notice
X.X. Xxx 000
------------------------------------
Xxxxxxx Xxxxx, Xxxxx (550)
------------------------------------
Attention: Seiya Miyanishi
--------------------------
Facsimile No.: 00-0-0000-0000
----------------------
12
ADVENT INTERNATIONAL GROUP
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Advent International Group's
Address for Notice:
00 Xxxxx Xxxxxx
------------------------------------
Xxxxxx, XX 00000
------------------------------------
Attention: Xxxxx Xxxxxxxxx
--------------------------
Facsimile No.: 000-000-0000
----------------------
GLOBAL PRIVATE EQUITY III LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Global Private Equity III Limited
Partnership
Address for Notice:
00 Xxxxx Xxxxxx
------------------------------------
Xxxxxx, XX 00000
------------------------------------
Attention: Xxxxx Xxxxxxxxx
--------------------------
Facsimile No.: 000-000-0000
----------------------
13
ADVENT PGGM GLOBAL LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Advent PGGM Global Limited
Partnership
Address for Notice:
00 Xxxxx Xxxxxx
-------------------------------------
Xxxxxx, XX 00000
-------------------------------------
Attention: Xxxxx Xxxxxxxxx
---------------------------
Facsimile No.: 000-000-0000
-----------------------
ADVENT PARTNERS GPE III LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Advent Partners GPE III Limited
Partnership
Address for Notice:
00 Xxxxx Xxxxxx
-------------------------------------
Xxxxxx, XX 00000
-------------------------------------
Attention: Xxxxx Xxxxxxxxx
---------------------------
Facsimile No.: 000-000-0000
-----------------------
14
ADVENT PARTNERS (NA) GPE III LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
----------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Advent Partners (NA) GPE III Limited
Partnership
Address for Notice:
00 Xxxxx Xxxxxx
------------------------------------
Xxxxxx, XX 00000
------------------------------------
Attention: Xxxxx Xxxxxxxxx
--------------------------
Facsimile No.: 000-000-0000
----------------------
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Group, its
General Partner
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Senior Vice President
Advent Partners Limited Partnership
Address for Notice:
00 Xxxxx Xxxxxx
------------------------------------
Xxxxxx, XX 00000
------------------------------------
Attention: Xxxxx Xxxxxxxxx
--------------------------
Facsimile No.: 000-000-0000
----------------------
15
/s/ Xxxx X. Xxxxxxx
by Xxxxxxx X. Xxxxxxx
attorney in fact
------------------------------------
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx'x
Address for Notice:
Xxxxxx Xxxxx
------------------------
Xxxxx Peebody, LLP
------------------
Xxx Xxxxxxx Xxxxxx
------------------
Xxxxxxxxxx, XX 00000
----------------
Facsimile No.: 000-000-0000
----------------------
16
/s/ Xxxxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx'x
Address for Notice:
CVC, Inc.
------------------------------------
000 Xxx Xxxx
------------------------------------
Xxxxxxxxx, XX 00000
------------------------------------
Facsimile No.: 000-000-0000
----------------------
/s/ Xxxxxx X. XxXxxxxxx
------------------------------------
Xxxxxx X. XxXxxxxxx
Xxxxxx X. XxXxxxxxx'x
Address for Notice:
------------------------------------
CVC, Inc.
------------------------------------
000 Xxx Xxxx
------------------------------------
Xxxxxxxxx, XX 00000
------------------------------------
Facsimile No.: 000-000-0000
----------------------
/s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx'x
Address for Notice:
CVC, Inc.
------------------------------------
000 Xxx Xxxx
------------------------------------
Xxxxxxxxx, XX 00000
------------------------------------
Facsimile No.: 000-000-0000
----------------------
17
/s/ Xxxxxxxxxxx X. Xxxx
------------------------------------
Xxxxxxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxx'x
Address for Notice:
CVC, Inc.
------------------------------------
000 Xxx Xxxx
------------------------------------
Xxxxxxxxx, XX 00000
------------------------------------
Facsimile No.: 000-000-0000
----------------------
18
SCHEDULE A
COMPANY STOCKHOLDER NO. OF EXISTING COMPANY SHARES HELD
Seagate Technology, Inc. 2,428,313
Nikko Tecno Co., Inc. 1,412,316
Global Private Equity III Limited Partnership 853,658
Advent PGGM Global Limited Partnership 130,793
Advent Partners GPE III Limited Partnership 12,907
Advent Partners (NA) GPE III Limited Partnership 3,861
Advent Partners Limited Partnership 15,041
Xxxx X. Xxxxxxx 451,900
Xxxxxxxxx X. Xxxxxxx 368,000
Xxxxxx X. XxXxxxxxx 50,000
Xxxxxxx X. Xxxxxxx 304,000
Xxxxxxxxxxx X. Xxxx 55,960
Schedule A - Page 1
EXHIBIT A
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
Exhibit A - Page 1
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
-----------------------------------------------------
(Signature of Granting Stockholder)
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
----------------------------------
(Date)
Exhibit A - Page 2
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxx X. Xxxxx, Executive Vice President
-----------------------------------------------------
(Signature of Granting Stockholder)
SEAGATE TECHNOLOGY, INC
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2/29/2000
----------------------------------
(Date)
Exhibit A - Page 2
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Seiya Miyanishi
-----------------------------------------------------
(Signature of Granting Stockholder)
NIKKO TECHNO, INC.
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
Feb. 28, 2000
----------------------------------
(Date)
Exhibit A - Page 3
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
ADVENT INTERNATIONAL GROUP
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 4
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
GLOBAL PRIVATE EQUITY III LIMITED PARTNERSHIP
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 5
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
ADVENT PGGM GLOBAL LIMITED
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 6
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
ADVENT PARTNERS GPE III LIMITED PARTNERSHIP
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 7
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
ADVENT PARTNERS (NA) GPE III LIMITED PARTNERSHIP
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 8
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxx X. Xxxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
ADVENT PARTNERS LIMITED PARTNERSHIP
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 9
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxx X. Xxxxxxx by Xxxxxxx X. Xxxxxxx,
attorney-in-fact
-----------------------------------------------------
(Signature of Granting Stockholder)
XXXX X. XXXXXXX
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2/28/00
----------------------------------
(Date)
Exhibit A - Page 10
This durable Power of Attorney shall not be affected by my subsequent
disability of incompetence.
TO INDUCE ANY THIRD PARTY TO ACT HEREUNDER, I HEREBY AGREE THAT ANY
THIRD PARTY REEIVING A DULY EXECUTED COPY OR FACSIMILE OF THIS INSTRUMENT MAY
ACT HEREUNDER, AND THAT REVOCATION OR TERMINATION HEREOF SHALL BE INEFFECTIVE
AS TO SUCH THIRD PARTY UNLESS AND UNTIL ACTUAL NOTISE OR KNOWLEDGE OR SUCH
REVOCATION OR TERMINATION SHALL HAVE BEEN RECEIVED BY SUCH THIRD PARTY, AND I
FOR MYSELF AND FOR MY HEIRS, EXECUTORS, LEGAL REPRESENTATIVES AND ASSIGNS,
HEREBY AGREE TO INDEMNIFY AND HOLD HARMLESS ANY SUCH THIRD PARTY FROM AND
AGAINST ANY AND ALL CLAIMS THAT MAY ARISE AGAINST SUCH THIRD PARTY BY REASON
OF SUCH THIRD PARTY HAVING RELIED ON THE PROVISIONS OF THIS INSTRUMENT.
THIS DURABLE GENERAL POWER OF ATTORNEY MAY BE REVOKED BY ME AT ANY
TIME.
IN WITNESS WHEREOF, I have hereunto signed my name this 24 day of
March, 1999.
/s/ Xxxx X. Xxxxxxx
----------------------------
XXXX X. XXXXXXX
STATE OF NEW YORK :
:SS.
COUNTY OF MONROE :
On this 24th day of March, 1999, before me, the subscriber, personally
appeared XXXX X. XXXXXXX, to me personally known, and known to me to be the
same person described in and who executed the foregoing Power of Attorney,
and she acknowledged to me that she executed the same.
/s/ Xxxxx X. Xxxx-Xxxxx
----------------------------
Notary Public
State of New York
[Illegible]
-3-
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxx X. XxXxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
XXXXXX X. XXXXXXXXX
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 11
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxx Xxxxxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
XXXXXXX XXXXXXX
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2/27/2000
----------------------------------
(Date)
Exhibit A - Page 12
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
/s/ Xxxxxxxxxxx X. Xxxx
-----------------------------------------------------
(Signature of Granting Stockholder)
XXXXXXXXXXX X. XXXX
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
2-27-00
----------------------------------
(Date)
Exhibit A - Page 13
