EXHIBIT 5.3
VEECO STOCKHOLDERS
VOTING AGREEMENT
VEECO 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 "VEECO STOCKHOLDER" and collectively, the "VEECO
STOCKHOLDERS") and CVC, Inc., a Delaware corporation (the "COMPANY").
WHEREAS, Veeco Acquisition Corp. ("ACQUISITION"), a Delaware
corporation and a wholly-owned subsidiary of Veeco Instruments Inc. ("VEECO"),
and 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 Veeco Stockholders Voting
Agreement contemplated by and referred to in the Merger Agreement;
WHEREAS, each Veeco Stockholder owns the number of Existing
Veeco Shares (as defined) set forth opposite such Veeco Stockholder's name on
SCHEDULE A hereto and the Veeco Stockholders collectively own in the aggregate
128,490 Existing Veeco Shares (as defined);
WHEREAS, as a condition to the willingness of the Company to
enter into the Merger Agreement, the Company has requested that the Veeco
Stockholders enter into this Agreement.
NOW THEREFORE, to induce the Company 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
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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. "VEECO SHARES" with respect to any Veeco Stockholder,
shall mean such Veeco Stockholder's Existing Veeco Shares and any Veeco Shares
and/or other Equity Securities of, or equity interest in, Veeco acquired by the
Veeco 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 Veeco Stockholder, in each case, if and to the extent
entitled to be voted.
1.3. "EXISTING VEECO SHARES" with respect to any Veeco
Stockholder, means all Veeco Shares Beneficially Owned by such Veeco 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 Veeco 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 VEECO STOCKHOLDER REPRESENTATIONS AND WARRANTIES.
Each Veeco Stockholder that is a legal entity, or otherwise not an individual
Person, hereby represents and warrants to the Company as follows:
(a) AUTHORITY. Such Veeco Stockholder is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization. Such Veeco 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 Veeco Stockholder's Irrevocable Proxy.
This Agreement and such Veeco Stockholder's Irrevocable Proxy have been duly and
validly authorized, executed and delivered by such Veeco Stockholder and each
constitutes such Veeco 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 Veeco Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Veeco 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 Veeco Stockholder's certificate of incorporation, limited
partnership agreement or other organizational, governing or constating
documents, (ii) any agreement or instrument to which such Veeco Stockholder 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.
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(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 Veeco
Stockholder's Irrevocable Proxy by such Veeco Stockholder, (ii) the performance
by such Veeco Stockholder of its obligations under this Agreement and such Veeco
Stockholder's Irrevocable Proxy or (iii) the consummation by such Veeco
Stockholder of the transactions contemplated by this Agreement and such Veeco
Stockholder's Irrevocable Proxy.
2.2. INDIVIDUAL VEECO STOCKHOLDER REPRESENTATIONS AND
WARRANTIES. Each Veeco Stockholder that is an individual hereby represents and
warrants to the Company as follows:
(a) AUTHORITY. Such Veeco Stockholder has full capacity and
authority to enter into this Agreement and such Veeco Stockholder's Irrevocable
Proxy, and to carry out the transactions contemplated hereby and thereby. This
Agreement and such Veeco Stockholder's Irrevocable Proxy have been duly executed
and delivered by such Veeco Stockholder and each constitutes a legal, valid and
binding obligation of such Veeco Stockholder enforceable against such Veeco
Stockholder in accordance with its terms.
(b) NON-CONTRAVENTION. None of the execution and delivery of
this Agreement or such Veeco Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Veeco 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 Veeco Stockholder is a
party or by which such Veeco 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 Veeco 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 Veeco
Stockholder's Irrevocable Proxy by such Veeco Stockholder, (ii) the performance
by such Veeco Stockholder of such Veeco Stockholder's obligations under this
Agreement or such Veeco Stockholder's Irrevocable Proxy or (iii) the
consummation by such Veeco Stockholder of the transactions contemplated hereby
or by such Veeco Stockholder's Irrevocable Proxy.
2.3. VEECO STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each
Veeco Stockholder hereby represents and warrants to the Company as follows:
(a) OWNERSHIP OF EXISTING VEECO SHARES. Such Veeco Stockholder
is the record and Beneficial Owner of the number of Existing Veeco Shares set
forth opposite such Veeco Stockholder's name on SCHEDULE A to this Agreement. On
the date of this Agreement, such Existing Veeco Shares constitute all of the
Veeco Shares owned of record or Beneficially Owned by such Veeco Stockholder.
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(b) LIENS AND RESTRICTIONS ON EXISTING VEECO SHARES. Such
Veeco Stockholder owns the number of Existing Veeco Shares set forth opposite
such Veeco 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 Veeco Stockholder's right to vote such Existing
Veeco Shares in his, her or its sole discretion, or could require such Veeco
Stockholder to sell or transfer any of such Existing Veeco Shares (whether upon
default on a loan or otherwise) before the Effective Time.
(c) VOTING POWER OVER EXISTING VEECO SHARES. Such Veeco
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 Veeco Stockholder's Existing Veeco Shares.
(d) SURVIVAL. The obligations of such Veeco Stockholder under
this Agreement shall survive the death, disability or incapacity of such Veeco
Stockholder.
2.4. COMPANY REPRESENTATIONS AND WARRANTIES. The Company
hereby represents and warrants to the Veeco Stockholders as follows:
(a) AUTHORITY. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Company 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
the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement by the Company 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 the Company.
(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 the Company, (ii) the
performance by the Company of its obligations under this Agreement or (iii) the
consummation by the Company of the transactions contemplated by this Agreement.
SECTION 3. COVENANTS OF THE VEECO STOCKHOLDERS.
3.1. VOTE FOR MERGER. At any meeting of stockholders of Veeco
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 Veeco Stockholder's Veeco Shares shall be counted as present thereat for
purposes of
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establishing a quorum and shall be voted or Consented (or caused to be voted or
Consented) in favor of the Merger, the adoption by Veeco of the Merger Agreement
and the issuance in the Merger of the Veeco Shares, 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 Veeco or at any adjournment or
postponement thereof or in any other circumstances upon which a Veeco
Stockholder's vote, Consent or other approval is sought, such Veeco
Stockholder's Veeco 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 Veeco 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 Veeco Stockholder to vote or Consent (or cause to be voted
or Consented) any Veeco Shares owned of record or Beneficially Owned by such
Veeco Stockholder (i) in favor of any Superior Veeco Proposal or related Veeco
Acquisition Transaction or (ii) in the election of any director of Veeco.
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
the Company, each Veeco Stockholder is delivering to the Company an Irrevocable
Proxy duly executed by or on behalf of such Veeco 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 Veeco Shares by
a Veeco 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 Veeco 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 Veeco Stockholder's
Irrevocable Proxy and subject to the terms, conditions and restrictions hereof
and thereof in the same manner as the Veeco Stockholder desiring to effect such
Transfer, by executing a writing to such effect in form and substance
satisfactory to the Company.
(b) OTHER VOTING ARRANGEMENTS, ETC. No Veeco 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 Veeco Shares owned of record or Beneficially Owned by such Veeco
Stockholder, other than as contemplated under and as required by this Agreement
and such Veeco Stockholder's Irrevocable Proxy.
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(c) INCONSISTENT ACTIONS; NON-INTERFERENCE. No Veeco
Stockholder shall, directly or indirectly, take any action that would or could
reasonably be expected to: (A) make any representation or warranty of the Veeco
Stockholder contained herein untrue or incorrect, or (B) result in a breach by
the Veeco Stockholder of its obligations under this Agreement, or (C) result in
a breach by Veeco 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 Veeco 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 Veeco 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
Veeco 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 Veeco's counsel and advisors) without the prior written consent of the
Company, except for filings, if any, required pursuant to the Exchange Act and
the rules and regulations promulgated thereunder or disclosures that such Veeco
Stockholder's counsel advises are necessary in order to fulfill such Veeco
Stockholder's obligations imposed by Law, in which event such Veeco 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.
4.2. DISCLOSURE. Each Veeco Stockholder hereby agrees to
permit Veeco and the Company 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 Veeco 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 Veeco Stockholder's Irrevocable
Proxy.
SECTION 5. CERTAIN ADDITIONAL COVENANTS OF THE VEECO STOCKHOLDERS.
5.1. NO SOLICITATION. Each Veeco 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
Veeco Acquisition Proposal or any inquiry with respect thereto, or engage in
discussions or negotiations with any Person relating to any Veeco Acquisition
Proposal or disclose any non-public information relating to Veeco or any
Subsidiary of Veeco or afford access to the properties, books or records of
Veeco or any Subsidiary of Veeco, to any Person
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that has made a Veeco Acquisition Proposal. A Veeco Stockholder shall notify the
Company orally and in writing of any offers, proposals or inquiries received by
such Veeco Stockholder relating to the purchase or acquisition by any Person of
any Veeco Shares and of any Veeco Acquisition Proposal actually known to such
Veeco 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 Veeco 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 Veeco Acquisition Proposal. Notwithstanding the restrictions set
forth in this Section 5.1, each of Veeco and any Person (including any Veeco
Stockholder) who is an officer or director of Veeco may take any action in such
capacity that is consistent with the terms of the Merger Agreement.
5.2. RELIANCE. Each Veeco Stockholder understands and
acknowledges that the Company is entering into the Merger Agreement in reliance
upon such Veeco Stockholder's execution and delivery of this Agreement and such
Veeco Stockholder's Irrevocable Proxy.
5.3. AFFILIATE AGREEMENT. Each Veeco Stockholder, if requested
by Veeco prior to the Effective Time, will duly execute and deliver to Veeco a
Veeco Affiliate Agreement contemplated by Section 5.21(b) 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.
7.2. ENTIRE AGREEMENT. This Agreement and any documents to be
delivered in accordance with this Agreement (including the Irrevocable Proxies
of the Veeco 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.
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7.4. BINDING AGREEMENT; ASSIGNMENT.
(a) BINDING AGREEMENT. Each Veeco Stockholder agrees
that this Agreement and the obligations hereunder shall attach to the Veeco
Shares and shall be binding upon any Person to which record or Beneficial
Ownership of such Veeco Shares shall pass, wether by operation of Law or
otherwise, including, without limitation, the Veeco 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 Veeco 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.
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):
If to the Company:
CVC, Inc.
000 Xxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Facsimile No: (000) 000-0000
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
If to any Veeco Stockholder, to such Veeco Stockholder at the
address set forth under such Veeco Stockholder's signature on the signature
pages to this Agreement.
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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
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 the Company and each
Veeco 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 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 Veeco Stockholder, such Veeco
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
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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.
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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.
THE COMPANY
CVC, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chairman, President
and CEO
VEECO STOCKHOLDERS
/s/ Xxxxxx X. Xxxxx
-----------------------------
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx'x
Address for Notice:
1 Malcolms Landing
-----------------------------
Northport, NY
-----------------------------
11768
-----------------------------
Facsimile No.:
--------------
/s/ Xxxx X. Xxxx, Xx
-----------------------------
Xxxx X. Xxxx, Xx.
Xxxx X. Xxxx'x
Address for Notice:
0 Xxxxxx Xxxx
-----------------------------
Rockville Centre
-----------------------------
N.Y. 11570
-----------------------------
Facsimile No.:
--------------
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/s/ Xxxxxxx X. Xxxxxx
-----------------------------
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx'
Address for Notice:
00 Xxxxxx Xxxx Xxxx
xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
Xx. Xxxxx, XX
===============================
Facsimile No.:___________________
/s/ Xxxxxx X. Xxxxxx
-----------------------------
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx'x
Address for Notice:
000X Xxxxxx Xxxxxx Xxxx
===============================
Oyster Bay, N.Y. 11771
===============================
Facsimile No.:___________________
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SCHEDULE A
VEECO STOCKHOLDER NO. OF EXISTING VEECO SHARES HELD
Xxxxxx X. Xxxxx 125,019
Xxxx X. Xxxx, Xx. 1,946
Xxxxxxx X. Xxxxxx 1,232
Xxxxxx X. Xxxxxx 293
-------
128,490
Schedule A - Page 1
EXHIBIT A
VEECO STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Veeco Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Veeco 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 Veeco
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints CVC,
Inc., a Delaware corporation ("CVC"), and each of CVC'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 Veeco 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 Veeco
(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 Veeco of the
Merger Agreement and the issuance of Veeco Shares in the Merger, 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 Veeco 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 Veeco Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Superior
Veeco Proposal or related Veeco Acquisition Transaction or (ii) in the
election of any director of Veeco.
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 Veeco 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 Veeco Shares)
----------------------------------
(Date)
Exhibit A - Page 2
VEECO STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Veeco Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Veeco 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 Veeco
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints CVC,
Inc., a Delaware corporation ("CVC"), and each of CVC'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 Veeco 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 Veeco
(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 Veeco of the
Merger Agreement and the issuance of Veeco Shares in the Merger, 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 Veeco 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 Veeco Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Superior
Veeco Proposal or related Veeco Acquisition Transaction or (ii) in the
election of any director of Veeco.
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 Veeco 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
----------------------------------------------------
(Signature of Granting Stockholder)
Xxxxxx X. Xxxxx
----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Veeco Shares)
Feb. 29, 2000
----------------------------------
(Date)
Exhibit A - Page 2
VEECO STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Veeco Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Veeco 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 Veeco
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints CVC,
Inc., a Delaware corporation ("CVC"), and each of CVC'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 Veeco 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 Veeco
(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 Veeco of the
Merger Agreement and the issuance of Veeco Shares in the Merger, 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 Veeco 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 Veeco Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Superior
Veeco Proposal or related Veeco Acquisition Transaction or (ii) in the
election of any director of Veeco.
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 Veeco 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. Xxxxxx
----------------------------------------------------
(Signature of Granting Stockholder)
Xxxxxx X. Xxxxxx
----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Veeco Shares)
2-29-2000
----------------------------------
(Date)
Exhibit A - Page 2
VEECO STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Veeco Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Veeco 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 Veeco
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints CVC,
Inc., a Delaware corporation ("CVC"), and each of CVC'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 Veeco 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 Veeco
(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 Veeco of the
Merger Agreement and the issuance of Veeco Shares in the Merger, 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 Veeco 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 Veeco Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Superior
Veeco Proposal or related Veeco Acquisition Transaction or (ii) in the
election of any director of Veeco.
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 Veeco 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. Xxxx, Xx.
----------------------------------------------------
(Signature of Granting Stockholder)
Xxxx X. Xxxx, Xx.
----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Veeco Shares)
Feb. 29, 2000
----------------------------------
(Date)
Exhibit A - Page 2
VEECO STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Veeco Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Veeco 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 Veeco
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints CVC,
Inc., a Delaware corporation ("CVC"), and each of CVC'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 Veeco 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 Veeco
(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 Veeco of the
Merger Agreement and the issuance of Veeco Shares in the Merger, 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 Veeco 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 Veeco Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Superior
Veeco Proposal or related Veeco Acquisition Transaction or (ii) in the
election of any director of Veeco.
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 Veeco 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/ Emanuelle X. Xxxxxx
----------------------------------------------------
(Signature of Granting Stockholder)
Emanuelle X. Xxxxxx
----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Veeco Shares)
2/29/2000
----------------------------------
(Date)
Exhibit A - Page 2
