EXHIBIT 2.3
VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 11, 2002 (this "AGREEMENT"),
between Philips Business Electronics International B.V., a company incorporated
under the laws of the Netherlands (the "STOCKHOLDER"), and Veeco Instruments
Inc., a Delaware corporation (the "COMPANY" and, collectively with the
Stockholder, the "Parties").
WHEREAS, as of the date of this Agreement, the Stockholder is the
Beneficial Owner (as herein defined) of 8,264,821 shares of Common Stock, no par
value (the "XXXXXXXX STOCK"), of FEI Company, an Oregon corporation
("XXXXXXXX"); and
WHEREAS, the Company, Venice Acquisition Corp., an Oregon corporation
("ACQUISITION"), and Xxxxxxxx have entered into an Agreement and Plan of Merger,
dated as of July 11, 2002 (the "MERGER AGREEMENT"), which provides that, among
other things, on the terms and subject to the conditions set forth therein,
Acquisition shall be merged with and into Xxxxxxxx (the "MERGER"), and each
share of Xxxxxxxx Stock will be converted into the right to receive 1.355 shares
of common stock, $0.01 par value per share (the "COMPANY Stock"), of the
Company; and
WHEREAS, the Stockholder and the Company have entered into an Investor
Agreement, dated as of July 11, 2002 (the "INVESTOR AGREEMENT") and the
Amendment Agreement, dated as of July 11, 2002 (the "AMENDMENT AGREEMENT"); and
WHEREAS, the Stockholder and the Company each desire to make certain
covenants and agreements concerning the manner in which the Stockholder Xxxxxxxx
Shares (as herein defined) will be voted in connection with the Merger and the
Merger Agreement.
NOW, THEREFORE, in consideration of the Company's execution and
delivery to the Stockholder of the Investor Agreement and the Amendment
Agreement and in consideration of the mutual covenants and agreements contained
herein, the Stockholder and the Company agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.01 As used in this Agreement, the following terms have the
respective meanings ascribed to them in this Section.
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to
any securities means 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 or entity shall include securities Beneficially Owned by all
other persons or entities with whom such person or entity would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act with respect to
securities of the same issuer.
(b) "EFFECTIVE TIME" has the meaning set forth in the Merger
Agreement.
(c) "EXCHANGE ACT" means the United States Securities Exchange Act
of 1934, as amended.
(d) "EXISTING XXXXXXXX SHARES" means all shares of Xxxxxxxx Common
Stock Beneficially Owned by the Stockholder on the date of this Agreement, in
each case, if and to the extent entitled to be voted.
(e) "FEI ACQUISITION PROPOSAL" has the meaning set forth in the
Merger Agreement.
(f) "FEI ACQUISITION TRANSACTION" has the meaning set forth in the
Merger Agreement.
(g) "NASDAQ" has the meaning set forth in the Merger Agreement.
(h) "PROXY" means a proxy in the form of Exhibit A attached to this
Agreement.
(i) "STOCKHOLDER XXXXXXXX SHARES" means the Existing Xxxxxxxx
Shares and any shares of Xxxxxxxx Stock and/or other equity securities of, or
equity interests in, Xxxxxxxx acquired by the 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 the Stockholder, in each case,
if and to the extent entitled to be voted.
(j) "SUPERIOR FEI PROPOSAL" has the meaning set forth in the Merger
Agreement.
(k) "TRANSFER" means 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 Stockholder Xxxxxxxx Shares by the Stockholder (in each of
the foregoing, whether voluntary or involuntary, by operation of law or
otherwise).
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(l) "TRANSFEREE" any person or entity to whom a Transfer is made.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 RECIPROCAL REPRESENTATIONS AND WARRANTIES. Each Party hereby
represents and warrants to the other as follows:
(a) Such Party is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. Such Party 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 (in the case of
the Stockholder) the Proxy. This Agreement and (in the case of the Stockholder)
the Proxy have been duly and validly authorized, executed and delivered by such
Party and constitutes such Party's legal, valid and binding obligation,
enforceable against it in accordance with its terms.
(b) Neither the execution and delivery of this Agreement or, in the
case of the Stockholder, the Proxy, nor the consummation of the transactions
contemplated by this Agreement or the Proxy 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 Party's certificate of incorporation
or similar organizational, governing or constating documents, (ii) any agreement
or instrument to which such Party is a party or by which it is bound, or (iii)
any law, or any order, rule or regulation of any court or governmental authority
or other regulatory organization having jurisdiction over it.
(c) Except as set forth in the Merger Agreement and the schedules
thereto, no governmental filings, authorizations, approvals or consents, or
other governmental action, is required for (i) the execution and delivery of
this Agreement or, in the case of the Stockholder, the Proxy, (ii) the
performance by such Party of its obligations under this Agreement and the Proxy,
or (iii) the consummation by such Party of the transactions contemplated by this
Agreement and the Proxy.
2.02 STOCKHOLDER REPRESENTATIONS AND WARRANTIES. The Stockholder
hereby represents and warrants to the Company as follows:
(a) The Stockholder is the record and Beneficial Owner of 8,264,821
Existing Xxxxxxxx Shares. On the date of this Agreement, such Existing Shares
constitute all of the shares of Xxxxxxxx Stock owned of record or Beneficially
Owned by the Stockholder.
(b) The Stockholder owns the Existing Xxxxxxxx Shares free and
clear of any liens, claims, security interests, proxies, voting trusts or
agreements, restrictions,
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qualifications, limitations, understandings or arrangements which would in any
way restrict or impair the Stockholder's right to vote Stockholder Xxxxxxxx
Shares in its sole discretion, or could require the Stockholder to sell or
transfer any Stockholder Xxxxxxxx Shares (whether upon default on a loan or
otherwise) before the Effective Time.
(c) The Stockholder has sufficient voting power and sufficient
power to issue instructions and sufficient power to agree to the matters set
forth in this Agreement with respect to the Stockholder Xxxxxxxx Shares.
ARTICLE III
AGREEMENTS IN RESPECT OF THE STOCKHOLDER XXXXXXXX SHARES
3.01 VOTE FOR MERGER.
(a) The Stockholder shall cause the Stockholder Xxxxxxxx Shares to
be counted as present for purposes of establishing a quorum at any meeting of
stockholders of Xxxxxxxx called to vote upon the Merger and 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, and shall cause the Stockholder
Xxxxxxxx Shares to be voted or consented in favor of the Merger; PROVIDED that
nothing set forth in this Section 3.01(a) or in the Proxy is intended or shall
be construed to restrict or impair the right of the Stockholder to vote or
consent (or cause to be voted or consented) any Stockholder Xxxxxxxx Shares in
favor of any Superior FEI Proposal or related FEI Acquisition Transaction.
(b) In order to effectuate the voting arrangements contemplated by
Sections 3.01(a) and 3.02, contemporaneously with the execution and delivery by
the Parties of this Agreement, and as a condition to such execution and delivery
by the Company, the Stockholder is delivering to the Company the Proxy, duly
executed by or on behalf of the Stockholder; PROVIDED that nothing set forth in
this Section 3.01(b) or in the Proxy is intended or shall be construed to
restrict or impair the right of the Stockholder to vote or consent (or cause to
be voted or consented) any Stockholder Xxxxxxxx Shares in favor of any Superior
FEI Proposal or related FEI Acquisition Transaction.
3.02 VOTE AGAINST CERTAIN MATTERS. Prior to the Effective Time, the
Stockholder shall cause the Stockholder Xxxxxxxx Shares to be counted as present
for purposes of establishing a quorum at any meeting of stockholders of Xxxxxxxx
called, or at any adjournment or postponement thereof, or in any other
circumstances upon which a vote, consent or other approval is sought, and shall
cause the Stockholder Xxxxxxxx Shares to be voted or consented against any
proposal or transaction involving Xxxxxxxx or any of its subsidiaries that would
prevent or nullify the Merger or the Merger Agreement (any such proposal or
transaction, a "PARTICULAR MATTER"); PROVIDED that nothing set forth
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in this Section 3.02 or such Proxy is intended or shall be construed to restrict
or impair the right of the Stockholder to vote or consent (or cause to be voted
or consented) any Stockholder Xxxxxxxx Shares in favor of any Superior FEI
Proposal or related FEI Acquisition Transaction.
3.03 TRANSFERS; OTHER VOTING ARRANGEMENTS.
(a) The Stockholder may not Transfer any Stockholder Xxxxxxxx
Shares except (i) to a Transferee that both (A) agrees, prior to the
consummation of such Transfer, to become bound by this Agreement and the Proxy
and subject to the terms, conditions and restrictions hereof and thereof in the
same manner as the Stockholder, by executing and delivering to the Company a
writing to such effect in form and substance satisfactory to the Company, and
(B) enters into, prior to the consummation of such Transfer, a "standstill"
agreement with respect to each of Xxxxxxxx and the Company, each of which
"standstill" agreements (I) shall be identical in substance to Section 4.01(a)
of the Investor Agreement and otherwise in form and substance satisfactory to
Xxxxxxxx or the Company, as the case may be, and (II) shall be effective only
for the period between the consummation of such Transfer and the Effective Time,
or (ii) to a Transferee that has made a Superior FEI Proposal in the FEI
Acquisition Transaction contemplated by such Superior FEI Proposal.
(b) The Stockholder shall not, directly or indirectly, enter into
any voting arrangement, whether by proxy, voting arrangement, voting agreement,
voting trust or otherwise with respect to any Stockholder Xxxxxxxx Shares, other
than this Agreement and the Proxy; PROVIDED that nothing set forth in this
Section 3.03 or in the Proxy is intended or shall be construed to restrict or
impair the right of the Stockholder to vote or consent (or grant a proxy causing
to be voted or consented) any Stockholder Xxxxxxxx Shares in favor of any
Superior FEI Proposal or related FEI Acquisition Transaction.
(c) The Stockholder shall not, directly or indirectly, take any
action that would or could reasonably be expected to invalidate or in any way
limit the enforceability by the Proxyholders (as defined in the Proxy) of the
Proxy.
(d) Notwithstanding any provision of this Agreement to the
contrary, nothing in this Agreement shall limit or restrict any employee of the
Stockholder from acting in his or her capacity as a director or officer of
Xxxxxxxx (it being understood that this Agreement shall apply to the Stockholder
solely in the Stockholder's capacity as a stockholder of Xxxxxxxx). No conduct
or action taken by any employee of the Stockholder who is also a director or
officer of Xxxxxxxx, in his capacity as such, shall be deemed to constitute a
breach of any provision of this Agreement.
3.04 CONFIDENTIALITY. Prior to the first public announcement by the
Company and Xxxxxxxx of the Merger Agreement, the Merger and the other
transactions contemplated thereby, the Stockholder shall not, and shall cause
its Affiliates (as defined in the Merger Agreement) and its and their respective
employees, counsel, advisors and
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representatives ("REPRESENTATIVES") not to, disclose to any person or entity any
information concerning the Merger Agreement, the Merger or the other
transactions contemplated thereby, or the discussions concerning the same,
PROVIDED, that such information may be disclosed to employees, counsel, advisors
and representatives of the Stockholder and its Affiliates who have been advised
of the foregoing obligations, and PROVIDED, FURTHER, that nothing set forth in
this Section 3.04 is intended or shall be construed to restrict or impair the
ability of the Stockholder or its Affiliates to comply with their respective
reporting obligations under applicable laws and stock exchange regulations, in
which event the Stockholder shall give prior notice of such disclosure to the
Company as promptly as practicable so as to enable the Company to seek a
protective order from a court of competent jurisdiction with respect thereto or
similar relief in connection therewith.
3.05 DISCLOSURE. Each Party acknowledges that the other Party is or
may be obligated to disclose in governmental and stock exchange (including
NASDAQ) filings the Stockholder's identity, facts concerning the Stockholder's
ownership of Xxxxxxxx Stock and the nature of the commitments, arrangements and
understandings set forth in this Agreement, the Proxy, the Investor Agreement,
the Amendment Agreement and any other agreements executed and delivered in
connection with the Merger, together with such other information as may be
required by applicable laws and stock exchange regulations. No Party shall issue
any press release naming the other Party or any of the other Party's Affiliates
unless such press release has been approved by such other Party, which approval
shall not be unreasonably withheld, delayed or conditioned.
3.06 NO SOLICITATION. Subject to Section 3.03(d), the Stockholder
shall not, and shall cause Koninklijke Philips Electronics N.V. ("PHILIPS") and
each other direct and indirect subsidiary of Philips not to, take any action to
solicit, initiate, encourage, induce or facilitate the making, submission or
announcement of any FEI Acquisition Proposal, or engage in discussions or
negotiations with any person or entity (other than with Xxxxxxxx and the Company
or any of their Affiliates or Representatives) with respect to any FEI
Acquisition Proposal, (other than any Superior FEI Proposal or related FEI
Acquisition Transaction) or disclose any nonpublic information relating to
Xxxxxxxx or any subsidiary of Xxxxxxxx. The Stockholder shall advise Xxxxxxxx
and the Company of any FEI Acquisition Proposal (including the identity of the
person or entity making or submitting such FEI Acquisition Proposal and the
terms thereof) that is made or submitted by any person or entity after the date
of this Agreement, reasonably promptly following its receipt thereof. The
Stockholder shall keep Xxxxxxxx and the Company reasonably informed with respect
to the status of any such FEI Acquisition Proposal. The Stockholder shall, and
shall cause Philips and each other direct and indirect subsidiary of Philips to,
immediately cease and cause to be terminated any discussions now pending with
any person or entity that relate to any FEI Acquisition Proposal or FEI
Acquisition Transaction, other than discussions or negotiations with Xxxxxxxx
and the Company or their Affiliates or Representatives.
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ARTICLE IV
MISCELLANEOUS
4.01 TERMINATION OF AGREEMENT. The provisions of this Agreement and
the Proxy shall automatically terminate upon, and be of no further force or
effect after, the earliest to occur of (i) the termination of the Merger
Agreement in accordance with its terms, (ii) the Effective Time, and (iii) the
execution and delivery by any party to the Merger Agreement of any amendment
thereto which would cause each share of Xxxxxxxx Stock to be converted into the
right to receive fewer than 1.355 shares of Company Stock (as adjusted for any
stock splits, reverse stock splits, stock dividends or similar events).
4.02 ENTIRE AGREEMENT. This Agreement and the Proxy 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.
4.03 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.
4.04 BINDING AGREEMENT; ASSIGNMENT.
(a) The Stockholder agrees that this Agreement and the obligations
hereunder shall attach to the Stockholder Xxxxxxxx Shares and shall be binding
upon any person to which record or Beneficial Ownership of such Stockholder
Xxxxxxxx Shares shall pass, whether by operation of law or otherwise, including,
without limitation, the Stockholder's successors, partners or Transferees (for
value or otherwise) and any other successors in interest. Notwithstanding any
transfer of Xxxxxxxx Stock, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(b) Notwithstanding anything to the contrary set forth herein,
except in accordance with Section 3.03(a), 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 the Company may assign, in its
sole discretion, its rights and obligations hereunder to any direct or indirect
wholly-owned subsidiary of the Company, but no such assignment shall relieve the
Company of its obligations hereunder if such assignee does not perform such
obligations.
4.05 NOTICES AND OTHER COMMUNICATIONS. Any notice or other
communication under this Agreement must be in writing and will be deemed given
when
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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 after 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):
If to the Company:
Veeco Instruments Inc.
000 Xxxxxxxxx Xxxxxxxxx
Xxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
with a copy to:
Xxxx Xxxxxxx LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and a copy to:
FEI Company
0000 X.X. Xxxxxxxxx Xxxxxxx
Xxxxxxxxx, Xxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
and a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. Xxxxxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
If to the Stockholder:
x/x Xxxxxxx Xxxxxxxxxxxxxx
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Xxxxx Xxxxxxxxxx
Xxxxxxxx X000-0
Xxxx. Xxxxxxxxx 0
0000XX Xxxxxxxxx
The Netherlands
Attention: Xxxxx Xxxxxxx
Telephone: x00 (00) 000-0000
Telecopier: x00 (00) 000-0000
with a copy to:
Xxxxxxxx & Xxxxxxxx
0000 Xxxxxxxxxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxxxx X. Xxxx
Telephone: (000) 000-0000
Telecopier: (000) 000-0000
4.06 GOVERNING LAW. THIS AGREEMENT AND THE PROXY SHALL BE GOVERNED
BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON APPLICABLE
TO AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS
OF LAWS DOCTRINES.
4.07 AMENDMENTS. Prior to the Effective Time, this Agreement may be
amended only by a document in writing signed by each of the Parties.
4.08 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.
4.09 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, 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 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.
4.10 ENFORCEMENT. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement and the
Proxy were
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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 the Proxy
and to enforce specifically the terms and provisions of this Agreement and the
Proxy 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 the Stockholder,
the 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 Party 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 the 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 the Proxy or any of the
transactions contemplated hereby or thereby.
4.11 FURTHER ASSURANCES. From time to time, at the Company's request
and without further consideration, the Stockholder shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or appropriate to effect the full and prompt performance of the
Stockholder's obligations pursuant to this Agreement and the validity and
enforceability of the Proxy.
(Signature page follows)
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
PHILIPS BUSINESS ELECTRONICS INTERNATIONAL B.V.
By: /s/ X.X. Xxxxxxxx
-------------------------------------------------------
Name: X.X. Xxxxxxxx
Title: Member Management Board
By: /s/ A.P.M. van der Poel
--------------------------------------------------------
Name: A.P.M. van der Poel
Title: Member Management Board
VEECO INSTRUMENTS INC.
By: /s/ Xxxxxx X. Xxxxx
-----------------------------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, Chief Executive Officer and President
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EXHIBIT A
PROXY
Reference is hereby made to that certain Voting Agreement, dated as of
July 11, 2002 (the "VOTING AGREEMENT"), of which this Proxy (this "PROXY") forms
a part. Capitalized terms used but not defined in this Proxy have the respective
meanings ascribed to such terms in the Voting Agreement. This Proxy is being
delivered by the undersigned Stockholder (the "GRANTING STOCKHOLDER") pursuant
to Section 3.01(b) of the Voting Agreement.
The undersigned Granting Stockholder hereby appoints Veeco Instruments
Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers and other
designees (each such person or entity, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of ORS
Section60.231 (2001), 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 Stockholder Xxxxxxxx Shares
which the Granting Stockholder is entitled to vote at any meeting of the
stockholders of Xxxxxxxx (whether annual or special and whether or not an
adjourned or postponed meeting) or consent in lieu of any such meeting or
otherwise FOR AND IN FAVOR OF the Merger; PROVIDED, HOWEVER, that nothing set
forth in this Proxy 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 Stockholder Xxxxxxxx Shares with respect to any Superior FEI
Proposal or related FEI Acquisition Transaction.
The Granting Stockholder hereby revokes all other proxies and powers
of attorney with respect to any Stockholder Xxxxxxxx Shares 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 purporting to grant the
specific voting powers specified herein. Any obligation of the Granting
Stockholder under this Proxy shall be binding upon the successors and assigns of
the Granting Stockholder.
THIS PROXY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL THE
EARLIEST TO OCCUR OF (I) THE TERMINATION OF THE MERGER AGREEMENT IN ACCORDANCE
WITH ITS TERMS, (II) THE EFFECTIVE TIME OF THE MERGER, AND (III) THE EXECUTION
AND DELIVERY BY ANY PARTY TO THE MERGER AGREEMENT OF ANY AMENDMENT THERETO WHICH
WOULD CAUSE EACH SHARE OF XXXXXXXX STOCK TO BE CONVERTED INTO THE RIGHT TO
RECEIVE FEWER THAN 1.355 SHARES OF COMPANY STOCK (AS ADJUSTED FOR ANY STOCK
SPLITS, REVERSE STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR EVENTS).
THIS PROXY WILL AUTOMATICALLY TERMINATE AND WILL BE AUTOMATICALLY
REVOKED, AND THE INTEREST WITH WHICH THIS PROXY IS COUPLED WILL BE AUTOMATICALLY
EXTINGUISHED, UPON THE EARLIEST TO OCCUR OF THE EVENTS SPECIFIED IN THE PREVIOUS
SENTENCE.
PHILIPS BUSINESS ELECTRONICS INTERNATIONAL B.V.
By: /s/ X.X. Xxxxxxxx
------------------------------------------------------
Name: X.X. Xxxxxxxx
Title: Member Management Board
By: /s/ A.P.M. van der Poel
------------------------------------------------------
Name: A.P.M. van der Poel
Title: Member Management Board
Dated: July 11, 2002
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