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As filed with the Securities and Exchange Commission on September 5, 1997
Registration No. 333-_____
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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VEECO INSTRUMENTS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2989601
(State or other jurisdiction (I.R.S. Employer
of incorporation or organization) Identification No.)
TERMINAL DRIVE, PLAINVIEW, NEW YORK 11803
(Address of principal executive offices)
STOCK OPTION AGREEMENT DATED JULY 25, 1997 BETWEEN VEECO
INSTRUMENTS INC. AND ESTHER J. DAVENPORT
STOCK OPTION AGREEMENT DATED JULY 25, 1997 BETWEEN VEECO
INSTRUMENTS INC. AND ROBERTO CONSTANTAKIS
EDWARD H. BRAUN
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
VEECO INSTRUMENTS INC.
TERMINAL DRIVE
PLAINVIEW, NEW YORK 11803
(Name and address of agent for service)
(516) 349-8300
(Telephone number, including area code, of agent for service)
Copies to:
RORY A. GREISS, ESQ.
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP
425 PARK AVENUE
NEW YORK, NEW YORK 10022
(212) 836-8000
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
========================================================================================================================
Title of securities to be Amount to be Proposed maximum Proposed maximum Amount of
registered registered offering price per unit (2) aggregate offering registration fee
price (2)
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<S> <C> <C> <C> <C>
Common Stock, par 30,547 shares $2.20 $67,203.40
value $.01 per share
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Common Stock, par 95,461 shares $1.27 $121,235.47
value $.01 per share
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Common Stock, par 10,182 shares $2.18 $22,196.76
value $.01 per share
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Totals 136,190 shares (1) $210,635.63 $63.83
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</TABLE>
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(1) This total represents (a) 126,008 shares of Common Stock which may be
issued upon exercise of stock options granted under the Stock Option
Agreement dated July 25, 1997 between the Registrant and Esther J.
Davenport and (b) 10,182 shares of Common Stock which may be issued upon
exercise of stock options granted under the Stock Option Agreement dated
July 25, 1997 between the Registrant and Roberto Constantakis
(collectively, the "Option Agreements").
(2) Computed in accordance with Rule 457(h) under the Securities Act of 1933,
as amended, based on the respective exercise prices of the options granted
under the Option Agreements.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents filed with the Securities and Exchange
Commission are incorporated herein by reference:
1. Veeco Instruments Inc.'s (the "Company") Annual Report on Form
10-K/A for the fiscal year ended December 31, 1996.
2. The Company's Current Report on Form 8-K, dated March 5, 1997.
3. The Company's Quarterly Report on Form 10-Q/A for the quarter
ended March 31, 1997.
4. The description of the common stock, par value $.01 per share, of
the Company ("Common Stock") contained in the Company's Registration Statement
on Form 8-A, dated November 18, 1994.
5. The Company's Current Report on Form 8-K, dated August 11, 1997.
6. The Company's Quarterly Report on Form 10-Q for the quarter
ended June 30, 1997.
All documents filed by the Company after the date hereof pursuant to
Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act of 1934, as
amended (the "Exchange Act"), prior to the filing of a post-effective amendment
which indicates that all securities offered have been sold or which deregisters
all securities then remaining unsold, shall be deemed incorporated by reference
herein and to be a part hereof from the date of filing such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Not applicable.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Paragraph 9 of the Company's Amended and Restated Certificate of
Incorporation ("Paragraph 9") permits the Company to indemnify to the fullest
extent permitted by Section 145 of the Delaware General Corporation Law (the
"DGCL") each person that such Section grants the Company the power to
indemnify. Paragraph 10 of the Company's Amended and Restated Certificate of
Incorporation ("Paragraph 10") eliminates the personal liability of directors
to the Company or its stockholders for monetary damages for breaches of
fiduciary duty as directors to the fullest extent permitted by Delaware law.
Paragraph 9 and Paragraph 10 are consistent with the DGCL, which
permits a Delaware corporation (i) to include in its certificate of
incorporation a provision limiting or eliminating a director's liability for
monetary damages for breach of the duty of care and (ii) to indemnify certain
individuals, including its directors, officers and employees.
Paragraph 10 protects the Company's directors against personal
liability for monetary damages resulting from breaches of their fiduciary duty
of care, except as set forth below. Under the DGCL, absent Paragraph 10,
directors could be held liable for gross negligence in the performance of their
duty of care but not for simple negligence. Paragraph 10 absolves directors of
liability for negligence in the performance of their duties, including gross
negligence. Directors remain liable for breaches of their duty of loyalty to
the Company and its stockholders, as well as acts or omissions not in good faith
or which involve intentional misconduct or a knowing violation of law and
transactions from which a director derives improper personal benefit. Paragraph
10 also does not absolve directors of
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liability under Section 174 of the DGCL, which makes directors personally liable
for unlawful dividends or unlawful stock repurchases or redemptions and
expressly sets forth a negligence standard with respect to such liability.
Under the DGCL, current and former directors and officers as well as
other employees and individuals (and persons serving at the request of the
Company as a director, officer, employee or agent for another entity) may be
indemnified against expenses (including attorneys' fees), judgments, fines and
amounts paid in settlement in connection with specified actions, suits or
proceedings, whether civil, criminal, administrative or investigative (other
than an action by or in the right of the corporation -- a "derivative action"),
if they acted in good faith and in a manner they reasonably believed to be in or
not opposed to the best interest of the Company and, with respect to any
criminal action or proceeding, had no reasonable cause to believe their conduct
was unlawful. A similar standard of care is applicable in the case of
derivative actions, except that indemnification only extends to expenses
(including attorneys' fees) actually and reasonably incurred in connection with
the defense or settlement of such an action and the DGCL requires court approval
before there can be any indemnification of expenses where the person seeking
indemnification has been found liable to the Company.
The DGCL provides that the indemnification and advancement of expenses
granted pursuant to it shall, unless otherwise provided when authorized,
continue as to each person who has ceased to be a director, officer, employee or
agent and shall inure to the benefit of the heirs, executors and administrators
of such a person.
The Company maintains insurance to cover directors and officers
against liability which they may incur in such capacity.
Except to the extent hereinabove set forth, there is no charter
provision, bylaw, contract, arrangement or statute under which any director or
officer of the Company is insured or indemnified in any manner against any
liability which he may incur in his capacity as such.
Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers or persons controlling
the Company pursuant to the foregoing provisions, the Company has been informed
that in the opinion of the Securities and Exchange Commission such
indemnification is against public policy as expressed in the Securities Act of
1933, as amended (the "Securities Act") and is therefore unenforceable.
ITEM 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
Exhibit
No. Description
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP with
respect to legality of securities being registered (filed
herewith).
10.1 Stock Option Agreement, dated July 25, 1997, between Veeco
Instruments Inc. and Esther J. Davenport.
10.2 Stock Option Agreement, dated July 25, 1997, between Veeco
Instruments Inc. and Roberto Constantakis.
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included
in Exhibit 5.1).
24 Powers of Attorney (included on the signature page of this
Registration Statement).
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ITEM 9. UNDERTAKINGS.
The undersigned registrant hereby undertakes:
A. 1. To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include any
material information with respect to the plan of distribution not previously
disclosed in the registration statement or any material change to such
information in the registration statement.
2. That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a new
registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed the initial bona fide
offering thereof.
3. To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at the
termination of the offering.
B. The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in this registration statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
C. Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Plainview, State of New York on August 28, 1997.
VEECO INSTRUMENTS INC.
By:/s/ Edward H. Braun
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Edward H. Braun
Chairman, Chief Executive
Officer and President
POWER OF ATTORNEY. Each person whose signature appears below hereby
authorizes each of Edward H. Braun and John F. Rein, Jr., as attorney-in-fact,
to sign and file on his or her behalf, individually and in each capacity stated
below, any post-effective amendment to this registration statement or any
registration statement relating to this offering.
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the date indicated:
Date
----
/s/ Edward H. Braun August 28, 1997
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Edward H. Braun
Chairman, Chief Executive Officer,
President and Director
(principal executive officer)
/s/ John F. Rein, Jr. August 28, 1997
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John F. Rein, Jr.
Vice President-Finance,
Chief Financial Officer,
Secretary and Treasurer
(principal financial officer)
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Date
----
/s/ Walter J. Scherr August 28, 1997
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Walter J. Scherr
Director
/s/ Richard A. D'Amore August 28, 1997
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Richard A. D'Amore
Director
/s/ Joel A. Elftmann August 28, 1997
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Joel A. Elftmann
Director
/s/ Paul R. Low August 28, 1997
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Paul R. Low
Director
/s/ James C. Wyant August 31, 1997
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James C. Wyant
Director
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EXHIBIT INDEX
EXHIBIT NO. DOCUMENT
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5.1 Opinion of Kaye, Scholer, Fierman, Hays &
Handler, LLP with respect to legality of
securities being registered (filed herewith).
10.1 Stock Option Agreement, dated July 25, 1997,
between Veeco Instruments Inc. and Esther J.
Davenport.
10.2 Stock Option Agreement, dated July 25, 1997,
between Veeco Instruments Inc. and Roberto
Constantakis.
23.1 Consent of Ernst & Young LLP (filed herewith).
23.2 Consent of Kaye, Scholer, Fierman, Hays & Handler,
LLP (included in Exhibit 5.1).
24 Powers of Attorney (included on signature
page of this Registration Statement).
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[Letterhead]
September 4, 1997
Veeco Instruments Inc.
Terminal Drive
Plainview, New York 11803
Ladies and Gentlemen:
We have acted as special counsel to Veeco Instruments Inc., a Delaware
corporation (the "Company"), in connection with the Company's registration
statement on Form S-8 (the "Registration Statement") to be filed pursuant to
the Securities Act of 1933, as amended. The Registration Statement relates to
an aggregate of 136,190 shares of the Company's common stock, par value $.01
per share (the "Common Stock"), 126,008 of which may be issued upon the
exercise of stock options granted pursuant to a Stock Option Agreement dated
as of July 25, 1997 between the Company and Esther J. Davenport and 10,182
of which may be issued upon the exercise of stock options granted pursuant to
a Stock Option Agreement dated as of July 25, 1997 between the Company and
Roberto Constantakis (collectively, the "Option Agreements"). The Option
Agreements have been entered into pursuant to the terms of the Agreement and
Plan of Merger (the "Merger Agreement") dated as of April 28, 1997, among the
Company, Veeco Acquisition Corp., Wyko Corporation ("Wyko"), Wyko's
stockholders and holders of options to purchase stock of Wyko.
In that connection, we have reviewed the Company's certificate of
incorporation, its by-laws, resolutions adopted by its Board of Directors,
the Registration Statement, the Merger Agreement, the Option Agreements and
such other documents and proceedings as we have deemed appropriate.
On the basis of such review, and having regard to legal considerations
that we deem relevant, we are of the opinion that the shares of Common Stock
to be offered pursuant to the Registration Statement have been duly
authorized and, when issued in accordance with the terms set forth in the
Option Agreements and in the Registration Statement, will be duly and validly
issued, fully paid and nonassessable.
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Veeco Instruments Inc. 2 September 4, 1997
Our opinion set forth above is based as to matters of law solely on
applicable provisions of the General Corporation Law of the State of
Delaware, and we express no opinions as to any other laws, statutes,
ordinances, rules or regulations.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement. In giving this opinion we do not thereby admit that
we are within the category of persons whose consent is required under Section
7 of the Act or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ Kaye, Scholer, Fierman, Hays & Handler, LLP
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Exhibit 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Stock Option Agreement Dated July 25, 1997
between Veeco Instruments Inc. and Esther Davenport and the Stock Option
Agreement Dated July 25, 1997 between Veeco Instruments Inc. and Roberto
Constantankis of our report dated February 7, 1997, with respect to the
consolidated financial statements and schedule of Veeco Instruments Inc.
included in its annual report (Form 10-K/A) for the year ended December 31,
1996, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
Melville, New York
September 2, 1997
