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EXECUTION COPY
EXHIBIT 2
STOCKHOLDER AGREEMENT
STOCKHOLDER AGREEMENT, dated as of October 2, 2000 (this "Agreement"),
among the stockholders listed on the signature page(s) hereto (collectively,
"Stockholders" and each individually, a "Stockholder"), Applied Science and
Technology, Inc., a Delaware corporation (the "Company") and MKS Instruments,
Inc., a Massachusetts corporation ("Parent"). Capitalized terms used and not
otherwise defined herein shall have the respective meanings assigned to them in
the Merger Agreement referred to below.
WHEREAS, as of the date hereof, the Stockholders collectively own of
record and beneficially shares of capital stock of the Company as set forth on
Schedule I hereto (such shares, together with any other voting or equity of
securities of the Company hereafter acquired by any Stockholder prior to the
termination of this Agreement, being referred to herein collectively as the
"Shares");
WHEREAS, concurrently with the execution of this Agreement, Parent and
the Company are entering into an Agreement and Plan of Merger, dated as of the
date hereof (the "Merger Agreement"), pursuant to which, upon the terms and
subject to the conditions thereof, a subsidiary of Parent will be merged with
and into the Company, and the Company will be the surviving corporation as a
wholly-owned subsidiary of the Parent (the "Merger"); and
WHEREAS, as a condition to the willingness of Parent to enter into the
Merger Agreement, Parent has required that the Stockholders agree, and in order
to induce Parent to enter into the Merger Agreement the Stockholders are willing
to agree, to vote in favor of adopting the Merger Agreement and approving the
Merger, upon the terms and subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements contained herein, and intending to be legally bound
hereby, the parties hereby agree, severally and not jointly, as follows:
Section 1. Voting of Shares.
(a) Each Stockholder covenants and agrees that until the termination of
this Agreement in accordance with the terms hereof, at the Shareholders' Meeting
or any other meeting of the stockholders of the Company, however called, and in
any action by written consent of the stockholders of the Company, such
Stockholder will vote, or cause to be voted, all of his respective Shares in
favor of adoption of the Merger Agreement and approval of the Merger
contemplated by the Merger Agreement, as the Merger Agreement may be modified or
amended from time to time in a manner not adverse to the Stockholders.
(b) Each Stockholder hereby irrevocably grants to, and appoints,
Parent, and any individual designated in writing by Parent, and each of them
individually, as his proxy and
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attorney-in-fact (with full power of substitution), for and in his name, place
and stead, to vote his Shares at the Shareholders' Meeting or any other meeting
of the stockholders of the Company, however called, and in any action by written
consent of the stockholders of the Company with respect to any of the matters
specified in, and in accordance and consistent with, this Section 1. Each
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement. Each Stockholder hereby affirms that the irrevocable proxy set forth
in this Section 1(b) is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of such Stockholder under this Agreement. Except as otherwise
provided for herein, each Stockholder hereby (i) affirms that the irrevocable
proxy is coupled with an interest and may under no circumstances be revoked,
(ii) ratifies and confirms all that the proxies appointed hereunder may lawfully
do or cause to be done by virtue hereof and (iii) affirms that such irrevocable
proxy is executed and intended to be irrevocable in accordance with the
provisions of Section 212(e) of the Delaware General Corporation Law.
Notwithstanding any other provisions of this Agreement, the irrevocable proxy
granted hereunder shall automatically terminate upon the termination of this
Agreement.
Section 2. Representations and Warranties of the Stockholders.
Each Stockholder on his own behalf hereby severally represents and warrants to
Parent with respect to himself and his ownership of the Shares as follows:
(a) Ownership of Shares. On the date hereof, the Shares are owned
beneficially by Stockholder or his nominee. Stockholder has sole voting power,
without restrictions, with respect to all of the Shares.
(b) Power; Binding Agreement. Stockholder has the legal capacity, power
and authority to enter into and perform all of his obligations, under this
Agreement. The execution, delivery and performance of this Agreement by
Stockholder will not violate any material agreement to which Stockholder is a
party, including, without limitation, any voting agreement, stockholders'
agreement, partnership agreement or voting trust. This Agreement has been duly
and validly executed and delivered by Stockholder and constitutes a valid and
binding obligation of Stockholder, enforceable against Stockholder in accordance
with its terms, subject to applicable bankruptcy, insolvency, fraudulent
conveyance, reorganization, moratorium and similar laws affecting creditors'
rights and remedies generally and subject, as to enforceability, to general
principles of equity (regardless of whether enforcement is sought in a
proceeding at law or in equity).
(c) No Conflicts. The execution and delivery of this Agreement do not,
and the consummation of the transactions contemplated hereby will not, conflict
with or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of termination, cancellation or
acceleration of any obligation or to loss of a material benefit under, any
provision of any loan or credit agreement, note, bond, mortgage, indenture,
lease, or other agreement, instrument, permit, concession, franchise, license,
judgment, order, decree, statute, law, ordinance, rule or regulation applicable
to Stockholder or any of its properties or assets, other than such conflicts,
violations or defaults or terminations, cancellations or accelerations which
individually or in the aggregate do not materially impair the ability of
Stockholder to perform its obligations hereunder.
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Section 3. Termination. This Agreement shall terminate upon the
earliest to occur of (i) the Effective Time (as such term is defined in the
Merger Agreement) or (ii) any termination of the Merger Agreement in accordance
with the terms thereof; provided that no such termination shall relieve any
party of liability for a willful breach hereof prior to termination.
Section 4. Specific Performance. The parties hereto agree that
irreparable damage would occur in the event any provision of this Agreement was
not performed in accordance with the terms hereof and that the parties shall be
entitled to specific performance of the terms hereof, in addition to any other
remedy at law or in equity.
Section 5. Fiduciary Duties. Each Stockholder is signing this
Agreement solely in such Stockholder's capacity as an owner of his respective
Shares, and nothing herein shall prohibit, prevent or preclude such Stockholder
from taking or not taking any action in his capacity as an officer or director
of the Company, to the extent permitted by the Merger Agreement.
Section 6. Miscellaneous.
(a) This Agreement constitutes the entire agreement between the parties
hereto with respect to the subject matter hereof and supersedes all prior
agreements and understandings, both written and oral, between the parties with
respect thereto. This Agreement may not be amended, modified or rescinded except
by an instrument in writing signed by each of the parties hereto.
(b) If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other conditions and provisions of this Agreement shall nevertheless remain in
full force and effect. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereto shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated to the fullest extent possible.
(c) Whenever the context may require, any pronouns used in this
Agreement shall include the corresponding masculine, feminine or neuter forms,
and the singular form of nouns and pronouns shall include the plural, and vice
versa.
(d) This Agreement shall be governed by and construed in accordance
with the laws of the State of Delaware without regard to the principles of
conflicts of law thereof.
(e) This Agreement may be executed in counterparts, each of which shall
be deemed an original and all of which together shall constitute one and the
same instrument.
[Signature Page to follow]
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IN WITNESS WHEREOF, each of the parties hereto has caused this
Agreement to be signed individually or by its respective duly authorized officer
as of the date first written above.
APPLIED SCIENCE AND TECHNOLOGY, INC.
By: /s/ Richard S. Post
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Name: Richard S. Post
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Title: Chairman and Chief Executive Officer
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MKS INSTRUMENTS, INC.
By: /s/ John R. Bertucci
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Name: John R. Bertucci
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Title: Chairman and Chief Executive Officer
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STOCKHOLDERS:
/s/ Richard S. Post
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Richard S. Post
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/s/ John M. Tarrh
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John M. Tarrh
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