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Securities and Exchange Commission
Washington, D.C. 20549
SCHEDULE 13D
Under the Securities Exchange Act of 1934 (Amendment No. )*
Veeco Instruments Inc.
(Name of Issuer)
Common Stock
(Title of Class of Securities)
922417-100
(CUSIP Number)
Edward H. Braun
c/o Veeco Instruments Inc.
Terminal Drive
Plainview, New York 11803
(516) 349-8300
(Name, Address and Telephone Number of Person
Authorized to Receive Notices and Communications)
Copies to:
Rory A. Greiss, Esq.
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
(212) 836-8000
July 25, 1997
(Date of Event which Requires
Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is filing
this schedule because of Rule 13d-1(b)(3) or (4), check the following box [ ].
Note: Six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are to
be sent.
Page 1 of 9 pages
Exhibit Index on page 9
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*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which would
alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities Exchange
Act of 1934 ("Act") or otherwise subject to the liabilities of that section
of the Act but shall be subject to all other provisions of the Act (however,
see the Notes).
Page 2 of 9 pages
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SCHEDULE 13D
CUSIP No. 922417-100 Page 3 of 9 Pages
<TABLE>
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1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
John B. Hayes
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) / /
(b) / /
3 SEC USE ONLY
4 SOURCE OF FUNDS (See Instructions)
PF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS
2(d) OR 2(e) / /
6 CITIZENSHIP OR PLACE OF ORGANIZATION
USA
NUMBER OF 7 SOLE VOTING POWER
SHARES 763,683 shares of Common Stock
BENEFICIALLY 8 SHARED VOTING POWER
OWNED BY -0-
EACH 9 SOLE DISPOSITIVE POWER
REPORTING 763,683 shares of Common Stock
PERSON 10 SHARED DISPOSITIVE POWER
WITH -0-
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
763,683 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES
(See Instructions) / /
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
Approximately 8.6% (based on 8,837,634 shares reported outstanding on
July 25, 1997)
14 TYPE OF REPORTING PERSON (See Instructions)
IN
</TABLE>
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ITEM 1. SECURITY AND ISSUER
The securities to which this Statement on Schedule 13D relates are the
shares of common stock, $.01 par value per share (the "Common Stock"), of Veeco
Instruments Inc., a Delaware corporation (the "Issuer"). The address of the
principal executive offices of the Issuer is Terminal Drive, Plainview, NY
11803.
ITEM 2. IDENTITY AND BACKGROUND
This Statement on Schedule 13D is being filed by John B. Hayes (the
"Reporting Person"). Mr. Hayes's business address is c/o Wyko Corporation, 2650
East Elvira Road, Tucson, AZ 85706. Mr. Hayes has not, during the last 5 years,
been convicted in a criminal proceeding (excluding traffic violations or similar
misdemeanors) or been a party to a civil proceeding of a judicial or
administrative body of competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order enjoining future
violations of, or prohibiting or mandating activities subject to, federal or
state securities laws or finding any violation with respect to such laws. Mr.
Hayes is a citizen of the United States.
ITEM 3. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION
The Reporting Person acquired his shares of Common Stock pursuant to an
Agreement and Plan of Merger, dated as of April 28, 1997 (the "Merger
Agreement"), among the Issuer, Veeco Acquisition Corp., a Delaware corporation
and a wholly-owned subsidiary of the Issuer, Wyko Corporation, an Arizona
corporation ("Wyko"), the shareholders of Wyko, and the holders of options to
purchase shares of Wyko. The Reporting Person held 75,000 shares of Class A
Common Stock of Wyko, which were converted, pursuant to the terms of the Merger
Agreement, into the right to receive 763,683 shares of Common Stock of the
Issuer. Pursuant to the terms of the Merger Agreement, Wyko became a
wholly-owned subsidiary of the Issuer.
Page 4 of 9 pages
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ITEM 4. PURPOSE OF TRANSACTION
The Reporting Person acquired his shares of Common Stock for investment
purposes only. The Reporting Person has no present plans or proposals that
relate to or would result in: (a) the acquisition by any person of additional
securities of the Issuer, or the disposition of securities of the Issuer; (b) an
extraordinary corporate transaction, such as a merger, reorganization or
liquidation, involving the Issuer or any of its subsidiaries; (c) a sale or
transfer of a material amount of assets of the Issuer or of any of its
subsidiaries; (d) any change in the present board of directors or management of
the Issuer, including any plans or proposals to change the number or term of
such directors or to fill any existing vacancies on such board; (e) any material
change in the present capitalization or dividend policy of the Issuer; (f) any
other material change in the Issuer's business or corporate structure; (g)
changes in the Issuer's charter, by-laws or instruments corresponding thereto or
other actions that may impede the acquisition of control of the
Issuer by any person; (h) causing a class of securities of the Issuer to be
delisted from a national securities exchange or to cease to be authorized to be
quoted in an inter-dealer quotation system of a registered national securities
association; (i) a class of equity securities of the Issuer becoming eligible
for termination of registration pursuant to Section 12(g)(4) of the Securities
Exchange Act of 1934; or (j) any action similar to any of those enumerated
above.
ITEM 5. INTEREST IN SECURITIES OF THE ISSUER
(a) The Reporting Person may be deemed to beneficially own in the
aggregate 763,683 shares of Common Stock, representing approximately 8.6% of
the outstanding shares of Common Stock (based on the number of shares of Common
Stock outstanding as of July 25, 1997).
Page 5 of 9 pages
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(b) The Reporting Person holds sole power to vote or to direct the vote
and to dispose or to direct the disposition of the 763,683 shares of Common
Stock.
(c) During the past sixty (60) days, the Reporting Person has received
763,683 shares of Common Stock in exchange for 75,000 shares of Class A Common
Stock of Wyko pursuant to the terms of the Merger Agreement.
Except as set forth above, the Reporting Person beneficially owns no
shares of Common Stock and has effected no transaction in shares of Common
Stock during the preceding 60 days.
(d) To the best knowledge of the Reporting Person, no
person has the right to receive or the power to direct the receipt of dividends
from, or the proceeds from the sale of, the 763,683 shares of Common Stock.
(e) Not applicable.
ITEM 6. CONTRACTS, ARRANGEMENTS, UNDERSTANDINGS OR RELATIONSHIPS WITH
RESPECT TO THE COMMON STOCK OF THE ISSUER
1. Affiliates Agreements. As of May 5, 1997, the Reporting Person
entered into an Affiliates Agreement (the "Affiliates Agreement") with the
Issuer pursuant to the terms of the Merger Agreement. Pursuant to the
Affiliates Agreement, the Reporting Person has agreed not to sell, exchange,
transfer, pledge, dispose of or otherwise reduce his risk relative to the
shares of Common Stock or any part thereof until such time after the effective
date of the merger as financial results covering at least 30 days of the
combined operations of the Issuer and Wyko after such effective date have been,
within the meaning of Accounting Series Release No. 130 ("Release No. 130"), as
amended, of the Securities and Exchange Commission (the "SEC"), filed by the
Issuer with the SEC or published by the Issuer in a public filing or issuance
that includes combined sales and income of the Issuer and Wyko. The Reporting
Person has
Page 6 of 9 pages
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further agreed that he has no present plan or intent to engage in a
sale, exchange, transfer, pledge, disposition or any other transaction that
results in a reduction in the risk of ownership with respect to more than 50%
of the 763,683 shares of Common Stock. The Affiliates Agreement contains
certain other terms with respect to maintaining compliance with Release No. 130
and with the federal securities laws. (See Exhibit 1.)
2. Registration Rights Agreement. As of July 25, 1997, the Reporting
Person and James C. Wyant and Louise Wyant, former stockholders of Wyko,
entered into a Registration Rights Agreement (the "Registration Rights
Agreement") with the Issuer for the provision of certain registration rights
for the shares of Common Stock received by him pursuant to the Merger
Agreement. Pursuant to the terms of the Registration Rights Agreement,
under certain circumstances the Reporting Person may cause the Issuer to
register his shares of Common Stock with the SEC for public sale thereof.
The Reporting Person also received "piggyback" registration rights and
shelf registration rights pursuant to the Registration Rights Agreement.
(See Exhibit 2.)
ITEM 7. MATERIAL TO BE FILED AS EXHIBITS
1. Affiliates Agreement, dated as of May 5, 1997, between the Reporting
person and the Issuer.
2. Registration Rights Agreement, dated as of July 25, 1997, among the
Reporting Person, James C. Wyant, Louise Wyant and the Issuer.
Page 7 of 9 pages
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SIGNATURE
_________
After reasonable inquiry and to the best of my knowledge and belief, I
certify that the information set forth in this statement is true, complete and
correct.
Dated as of August 4, 1997
/s/ John B. Hayes
---------------------------------
John B. Hayes
Page 8 of 9 pages
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Index to Exhibits
_________________
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<CAPTION>
Exhibit
- -------
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1. Affiliates Agreement, dated as of May 5, 1997, between the
Reporting Person and the Issuer.
2. Registration Rights Agreement, dated as of July 25, 1997, among
the Reporting Person, James C. Wyant, Louise Wyant and the Issuer.
</TABLE>
Page 9 of 9 pages
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EXHIBIT 1
AFFILIATES AGREEMENT
THIS AFFILIATES AGREEMENT (the "Affiliates Agreement") is entered into as of
the 5th day of May, 1997 between Veeco Instruments Inc., a Delaware corporation
("Acquiror"), and the undersigned shareholder (the "Shareholder") of Wyko
Corporation, an Arizona corporation ("Target").
RECITALS
A. Target, Acquiror and Veeco Acquisition Corp., a Delaware corporation and
a wholly-owned subsidiary of Acquiror ("Merger Sub"), have entered into an
Agreement and Plan of Merger, dated April , 1997 (the "Merger Agreement"),
pursuant to which Merger Sub will be merged into Target (the "Merger"), and
Target will become a wholly-owned subsidiary of Acquiror.
B. Upon the consummation of the Merger and in connection therewith, the
undersigned Shareholder will become the owner of shares of common stock, $.01
par value per share, of Acquiror (the "Acquiror Shares").
C. The parties to the Merger Agreement intend to cause the Merger to be
accounted for as a pooling of interests pursuant to APB Opinion No. 16, Staff
Accounting Series Releases No. 130, 135 and 146 and Staff Accounting Bulletins
Topic Two.
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
provisions and covenants set forth in the Merger Agreement and in this
Affiliates Agreement, it is hereby agreed as follows:
1. The undersigned Shareholder hereby agrees that:
(a) The undersigned Shareholder may be deemed to be (but does not hereby
admit to be) an "affiliate" of Target within the meaning of Rule 144 under
the Securities Act of 1933, as amended (the "Securities Act"), and
Accounting Series Release No. 130, as amended, of the Securities and
Exchange Commission (the "SEC") ("Release No. 130").
(b) The undersigned Shareholder will not sell, exchange, transfer,
pledge, dispose of or otherwise reduce the undersigned Shareholder's risk
relative to the Acquiror Shares or any part thereof until such time after
the Effective Time of the Merger as financial results covering at least
thirty (30) days of the combined operations of Acquiror and Target after the
Effective Time of the Merger have been, within the meaning of said Release
No. 130, filed by Acquiror with the SEC or published by Acquiror in an
Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Current
Report on Form 8-K, a quarterly earnings report, a press release or other
public issuance that includes combined sales and income of Target and
Acquiror. Acquiror agrees to make such filing or publication as soon as
practicable and to notify the undersigned Shareholder promptly upon making
such filing or publication. The undersigned will not, during the thirty (30)
day period prior to the Effective Time of the Merger as determined in
Acquiror's reasonable discretion, sell, exchange, transfer, pledge, dispose
of or otherwise reduce the undersigned Shareholder's risk relative to the
Acquiror Shares or any part thereof (including any disposition, within such
period, of Shareholder's shares of Target Common Stock).
(c) The undersigned Shareholder has, and as of the Effective Time of the
Merger will have, no present plan or intent (a "Plan") to engage in a sale,
exchange, transfer, pledge, disposition or any other transaction (including
a distribution by a partnership to its partners or by a corporation to its
shareholders) that results in a reduction in the risk of ownership
(collectively, a "Sale") with respect to more than fifty percent (50%) of
the shares of Acquiror Common Stock to be acquired by the undersigned
Shareholder upon consummation of the Merger. The undersigned Shareholder is
not
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aware of, or participating in, any Plan on the part of Target's shareholders
to engage in Sales of the shares of Acquiror Common Stock to be issued in
the Merger such that the aggregate fair market value, as of the Effective
Time of the Merger, of the shares subject to such Sales would exceed fifty
percent (50%) of the aggregate fair market value of all shares of
outstanding Target Common Stock immediately prior to the Merger. A Sale of
Acquiror Common Stock shall be considered to have occurred pursuant to a
Plan if such Sale occurs in a transaction that is in contemplation of, or
related or pursuant to, the Merger Agreement (a "Related Transaction"). In
addition, shares of Target Common Stock (i) exchanged for cash in lieu of
fractional shares of Acquiror Common Stock and (ii) with respect to which a
Sale occurred in a Related Transaction prior to the Merger shall be
considered to have been shares of outstanding Target Common Stock that were
exchanged for Acquiror Common Stock in the Merger and then disposed of
pursuant to a Plan. If any of the undersigned Shareholder's representations
in this subsection (c) ceases to be true at any time prior to the Effective
Time of the Merger, the undersigned Shareholder shall deliver to each of
Target and Acquiror, prior to the Effective Time of the Merger, a written
statement to that effect. Except as otherwise set forth in Appendix A, the
undersigned Shareholder has not engaged in a sale of any shares of Target
Common Stock since . The undersigned Shareholder understands and
acknowledges that Target, Acquiror and their respective shareholders, as
well as legal counsel to Target and Acquiror, are entitled to rely on (i)
the truth and accuracy of the undersigned Shareholder's representations
contained therein and (ii) the undersigned Shareholder's performance of the
obligations set forth herein.
(d) Subject to paragraphs (b) and (c) of this Section 1, the undersigned
Shareholder agrees not to offer, sell, exchange, transfer, pledge or otherwise
dispose of any of the Acquiror Shares unless at that time the time period set
forth in paragraph (b) of this Section 1 has expired and either:
(i) such transaction is permitted pursuant to the provisions of Rule
145(d) under the Securities Act;
(ii) counsel representing the undersigned Shareholder, satisfactory to
Acquiror, shall have advised Acquiror in a written opinion letter
satisfactory to Acquiror and Acquiror's counsel, and upon which Acquiror and
its counsel may rely, that no registration under the Securities Act is
required in connection with the proposed sale, transfer or other
disposition;
(iii) a registration statement under the Securities Act covering the
Acquiror Shares proposed to be sold, transferred or otherwise disposed of,
describing the manner and terms of the proposed sale, transfer or other
disposition, and containing a current prospectus, is filed with the SEC and
made effective under the Securities Act; or
(iv) an authorized representative of the SEC shall have rendered written
advice to the undersigned Shareholder (sought by the undersigned Shareholder
or counsel to the undersigned Shareholder, with a copy thereof and of all
other related communications delivered to Acquiror) to the effect that the
SEC will take no action, or that the staff of the SEC will not recommend
that the SEC take action, with respect to the proposed offer, sale,
exchange, transfer, pledge or other disposition if consummated.
(e) All certificates representing the Acquiror Shares deliverable to the
undersigned Shareholder pursuant to the Merger Agreement and in connection with
the Merger and any certificates subsequently issued with respect thereto or in
substitution therefor shall, unless one or more of the alternative conditions
set forth in the subparagraphs of paragraph (d) of this Section 1 shall have
occurred, bear a legend substantially as follows:
"The shares represented by this certificate may not be offered,
sold, exchanged, transferred, pledged or otherwise disposed of
except in accordance with the requirements of the Securities Act
of 1933, as amended, and the other conditions specified in
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that certain Affiliates Agreement, dated as of April , 1997,
between Acquiror and , a copy of which Affiliates
Agreement may be inspected by the holder of this certificate at
the offices of Acquiror, or Acquiror will furnish, without charge,
a copy thereof to the holder of this certificate upon written
request therefor."
Acquiror, at its discretion, may cause stop transfer orders to be placed with
its transfer agent with respect to the certificates for the Acquiror Shares but
not as to the certificates for any part of the Acquiror Shares as to which said
legend is no longer appropriate when one or more of the alternative conditions
set forth in the subparagraphs of paragraph (d) of this Section 1 shall have
occurred.
(f) The undersigned Shareholder will observe and comply with the Securities
Act and the General Rules and Regulations thereunder, as now in effect and as
from time to time amended and including those hereafter enacted or promulgated,
in connection with any offer, sale, exchange, transfer, pledge or other
disposition of the Acquiror Shares or any part thereof.
(g) The undersigned Shareholder undertakes and agrees to indemnify and hold
harmless Acquiror, Target, and each of their respective current and future
officers and directors and each person, if any, who now or hereafter controls or
may control Acquiror or Target within the meaning of the Securities Act (an
"Indemnified Person") from and against any and all claims, demands, actions,
causes of action, losses, costs, damages, liabilities and expenses ("Claims")
based upon, arising out of or resulting from any breach or nonfulfillment of any
undertaking, covenant or agreement made by the undersigned Shareholder in
subsection (b), (c), (d) or (f) of this Section 1, or caused by or attributable
to the undersigned Shareholder, or the undersigned Shareholder's agents or
employees, or representatives, brokers, dealers and/or underwriters insofar as
they are acting on behalf of and in accordance with the instruction of or with
the knowledge of the undersigned Shareholder, in connection with or relating to
any offer, sale, pledge, transfer or other disposition of any of the Acquiror
Shares by or on behalf of the undersigned Shareholder, which claim or claims
result from any breach or nonfulfillment as set forth above. The indemnification
set forth herein shall be in addition to any liability that the undersigned
Shareholder may otherwise have to the Indemnified Persons.
(h) Promptly after receiving definitive notice of any Claim in respect of
which an Indemnified Person may seek indemnification under this Affiliates
Agreement, such Indemnified Person shall submit notice thereof to the
undersigned Shareholder. The omission by the Indemnified Person so to notify the
undersigned Shareholder of any such Claim shall not relieve the undersigned
Shareholder from any liability the undersigned Shareholder may have hereunder
except to the extent that (i) such liability was caused or increased by such
omission, or (ii) the ability of the undersigned Shareholder to reduce or defend
against such liability was adversely affected by such omission. The omission of
the Indemnified Person so to notify the undersigned Shareholder of any such
Claim shall not relieve the undersigned Shareholder from any liability the
undersigned Shareholder may have otherwise than hereunder. The Indemnified
Persons and the undersigned Shareholder shall cooperate with and assist one
another in the defense of any Claim and any action, suit or proceeding arising
in connection therewith.
2. REPORTS. From and after the Effective Time of the Merger and for so long
as necessary in order to permit the undersigned Shareholder to sell the Acquiror
Shares pursuant to Rule 145 and, to the extent applicable, Rule 144 under the
Securities Act, Acquiror will file on a timely basis all reports required to be
filed by it pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, referred to in paragraph (c)(1) of Rule 144 under the Securities Act (or,
if applicable, Acquiror will make publicly available the information regarding
itself referred to in paragraph (c)(2) of Rule 144), in order to permit the
undersigned Shareholder to sell, pursuant to the terms and conditions of Rule
145 and the applicable provisions of Rule 144, the Acquiror Shares.
3. WAIVER. No waiver by any party hereto of any condition or of any breach
of any provision of this Affiliates Agreement shall be effective unless in
writing.
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4. NOTICES. All notices, requests, demands or other communications that are
required or may be given pursuant to the terms of this Affiliates Agreement
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed by registered or certified mail, postage prepaid, as follows:
(a) If to the Shareholder, at the address set forth below the Shareholder's
signature at the end hereof.
(b) If to Acquiror, Target or the other Indemnified Persons:
Veeco Instruments Inc.
Terminal Drive
Plainview, New York 11803
Attention: Chairman, President and Chief Executive Officer
Facsimile No.: (516) 349-9079
Telephone No.: (516) 349-8300
with a copy (which shall not constitute notice) to:
Kaye, Scholer, Fierman, Hays & Handler, LLP
425 Park Avenue
New York, New York 10022
Attention: Rory Greiss, Esq.
Facsimile No.: (212) 836-7152
Telephone No.: (212) 836-8261
and
Wyko Corporation
2650 East Elvira Road
Tucson, Arizona 85706
Attention: James C. Wyant
Facsimile No.: (520) 294-1799
Telephone No.: (520) 741-1044
with a copy (which shall not constitute notice) to:
Morrison & Foerster LLP
755 Page Mill Road
Palo Alto, CA 94304-1018
Attention: Michael Phillips, Esq.
Facsimile No.: (415) 494-0792
Telephone No.: (415) 813-5600
or to such other address as any party hereto or any Indemnified Person may
designate for itself by notice given as herein provided.
5. COUNTERPARTS. For the convenience of the parties hereto, this Affiliates
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
document.
6. SUCCESSORS AND ASSIGNS. This Affiliates Agreement shall be enforceable
by, and shall inure to the benefit of and be binding upon, the parties hereto
and their respective successors and assigns. Moreover, this Affiliates Agreement
shall be enforceable by, and shall inure to the benefit of, the Indemnified
Persons and their respective successors and assigns. As used herein, the term
"successors and assigns" shall mean, where the context so permits, heirs,
executors, administrators, trustees and successor trustees, and personal and
other representatives.
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7. GOVERNING LAW. This Affiliates Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws of the State of
New York.
8. EFFECTIVENESS; SEVERABILITY. This Affiliates Agreement shall become
effective at the Effective Time of the Merger. If a court of competent
jurisdiction determines that any provision of this Affiliates Agreement is
unenforceable or enforceable only if limited in time and/or scope, this
Affiliates Agreement shall continue in full force and effect with such provision
stricken or so limited.
9. EFFECT OF HEADINGS. The section headings herein are for convenience only
and shall not affect the construction or interpretation of this Affiliates
Agreement.
10. DEFINITIONS. All capitalized terms used herein shall have the meaning
defined in the Merger Agreement, unless otherwise defined herein.
IN WITNESS WHEREOF, the parties have caused this Affiliates Agreement to be
executed as of the date first above written.
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ACQUIROR SHAREHOLDER
By: /s/ EDWARD H. BRAUN /s/ JOHN HAYES
----------------------------------------- ------------------------------------------
Edward H. Braun (Signature)
Chairman, President and
Chief Executive Officer ------------------------------------------
(Print Name)
------------------------------------------
(Print Address)
------------------------------------------
(Print Telephone Number)
</TABLE>
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EXHIBIT 2
REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of July 25, 1997, between Veeco
Instruments Inc., a Delaware corporation (the "Company"), and John Hayes and
James C. Wyant (collectively, the "Shareholders").
WHEREAS, the Company, Veeco Acquisition Corp., a Delaware corporation
("Acquisition"), Wyko Corporation ("Wyko"), the Shareholders and certain holders
of options to purchase shares of common stock of Wyko have entered into an
Agreement and Plan of Merger dated as of April , 1997 (the "Merger
Agreement"), pursuant to which Acquisition, a wholly-owned subsidiary of the
Company, will be merged with and into Wyko, and Wyko will become a wholly-owned
subsidiary of the Company (the "Merger"); and
WHEREAS, pursuant to the terms of the Merger, the Shareholders' shares of
common stock, par value $.01 per share of Wyko, will be converted into the right
to receive shares of the Company's common stock; and
WHEREAS, in connection with the Merger and pursuant to the Merger Agreement,
the Company has agreed to provide the Shareholders with certain registration
rights as set forth herein.
NOW, THEREFORE, the parties hereto agree as follows:
ARTICLE I.
CERTAIN DEFINITIONS
The following terms, as used in this Agreement, have the following
respective meanings:
"PERSON" means any natural person, corporation, limited partnership, general
partnership, a limited liability company, joint stock company, joint venture,
association, company, trust, bank, trust company, land trust, business trust or
other organization, whether or not a legal entity, and any government agency or
political subdivision thereof.
"REGISTRABLE SECURITIES" means (i) all or any Shares received by the
Shareholders in connection with the Merger (all such Shares, the "Merger
Shares"), and (ii) any Shares issued as a dividend or distribution or issuable
upon the conversion or exercise of any warrant, right or other security which is
issued as a dividend or other distribution with respect to, or in exchange for
or in replacement of, the Merger Shares.
"SHARES" means the Company's Common Stock, par value $.01 per share.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
ARTICLE II.
REGISTRATION RIGHTS
2.01 DEMAND REGISTRATION. (a) If on any occasion after the first
anniversary of the date hereof one or more of the Shareholders notifies the
Company in writing that he or they wish to offer or cause to be offered for
public sale a portion of the Registrable Securities at least equal to 25% of any
and all Registrable Securities held at such time by all of the Shareholders, the
Company will so notify all Shareholders holding Registrable Securities. Upon
written request (the "Shareholder Request") of any Shareholder given within 30
days after the receipt by such Shareholder from the Company of such
notification, the Company, subject to its obligations under the Registration
Rights Agreement, dated as of
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December 6, 1994 (the "Prior Registration Rights Agreement"), agrees promptly to
prepare and file a registration statement with the Securities and Exchange
Commission (the "Commission") to register under the Securities Act all
Registrable Securities requested to be registered by the requesting Shareholders
and to use its best efforts to have such registration statement declared
effective as promptly as practicable (but in any event within 90 days after
receipt of the Shareholder Request) as would permit or facilitate the sale and
distribution of such Shareholder's Registrable Securities as are specified in
such Shareholder Request. The Company shall not be required to effect more than
one registration pursuant to this Section 2.1.
(b) A Shareholder Request shall state the number of Registrable Securities
requested to be registered and the intended method of disposition thereof.
Promptly upon receipt of any Shareholder Request, the Company will send a notice
to all other holders of Registrable Securities, together with a copy of the
Shareholder Request and notice of such public offering. Such other holders may
elect to participate in the registration by notice to the Company given within
30 days following the date of the Company's notice of request for registration.
2.02 INCIDENTAL REGISTRATION. (a) If at any time after the date hereof the
Company proposes to register any equity securities under the Securities Act for
sale to the public (other than pursuant to a registration statement on Form S-4
or Form S-8 (or any successor forms) or any other forms not available for
registering Registrable Securities for sale to the public), either for the
Company's account or for the account of others, the Company shall, not less than
30 nor more than 90 days prior to the proposed date of filing a registration
statement under the Securities Act, give written notice to all holders of
Registrable Securities of its intention to do so. Upon the written request of
any holder of Registrable Securities given within 30 days after transmittal by
the Company of such notice, the Company, subject to its obligations under the
Prior Registration Rights Agreement, will use its best efforts to cause the
Registrable Securities requested to be registered to be so registered under the
Securities Act. A request pursuant to this Section 2.2(a) shall state the number
of Registrable Securities requested to be registered and the intended method of
disposition thereof. The rights granted in this Section 2.2(a) shall apply in
each case where the Company proposes to register equity securities regardless of
whether such rights may have been exercised previously.
(b) Nothing in this Agreement shall be deemed to require the Company to
proceed with any registration of its securities pursuant to Section 2.2 after
giving the notice provided in paragraph (a) above.
2.03 SHELF REGISTRATION. (a) At any time after January 1, 1998, a
Shareholder may submit a written request to the Company (in the manner provided
in Section 2.1(a)) requesting that, promptly after the expiration of the time
period set forth in Section 8.01 of the Merger Agreement, the Company file with
the Commission a registration statement under the Securities Act for the
offering on a continuous or delayed basis in the future of up to 1,500,000
Registrable Securities, as requested by the Shareholder(s) (collectively, the
"Shelf Registration"), and, subject to the provisions hereof, the Company shall
use its best efforts to comply with such request. The Shelf Registration shall
be on an appropriate form and the Shelf Registration and any form of prospectus
included therein or prospectus supplement relating thereto shall reflect such
plan of distribution or method of sale as the Shareholder(s) may from time to
time notify the Company, including the sale of some or all of the up to
1,500,000 Registrable Securities in a public offering or, if requested by the
Shareholder(s), subject to receipt by the Company of such information (including
information relating to purchasers) as the Company reasonably may require, in a
transaction constituting (i) a private placement under Section 3(b) or 4(2) of
the Securities Act or (ii) under Rule 144A under the Securities Act in
connection with which the Company undertakes to register such shares after the
conclusion of such placement to permit such shares freely to be tradeable by the
purchasers thereof. The Company shall use its best efforts to keep the Shelf
Registration continuously effective for the period beginning on the date on
which the Shelf Registration is declared effective and ending on the first to
occur of (1) ninety (90) days thereafter and (2) on the first date that all such
Registrable Securities have been sold. During the period during which the Shelf
Registration is effective, the Company shall supplement or make amendments to
the Shelf Registration, if required by the Securities Act or if reasonably
requested by the Shareholder or an underwriter of Registrable Securities,
including to reflect any specific plan of
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distribution or method of sale, and shall use its reasonable best efforts to
have such supplements and amendments declared effective, if required, as soon as
practicable after filing.
(b) Notwithstanding the provisions of the first sentence of Section 2.3(a)
hereof, the Company shall not be permitted to effect a Registration Statement on
Form S-4 without first having used its best efforts to effect a registration
relating to the Shelf Registration referred to in such Section 2.3(a).
2.04 LIMITATION ON REGISTRATION REQUIREMENT. (a) Except as provided in
Section 2.3(b) hereof, the Company shall have the right to postpone for up to 75
days any registration required pursuant to Section 2.1 or Section 2.3 hereof if
the Company determines in good faith (and so certifies to the Shareholders) that
the filing of such registration statement would require the disclosure of
non-public material information the disclosure of which would have a material
adverse effect on the Company or would otherwise adversely affect any proposal
or plan by the Company or any of its subsidiaries to engage in any acquisition
of assets (other than in the ordinary course of business) or any merger,
consolidation, tender offer or similar transaction (provided, however, that the
Company may not exercise its right to so delay a registration pursuant to
Section 2.1 or Section 2.3 hereof more than once in any twelve-month period).
(b) Except as provided in Section 2.3(b) hereof, the Company shall not be
obligated or required to effect any registration pursuant to Section 2.1(a) or
Section 2.3(a) hereof during the period commencing on the date falling thirty
(30) days prior to the Company's estimated date of filing of, and ending on the
date one hundred eighty (180) days following the effective date of, any
registration statement pertaining to any underwritten registration initiated by
the Company, for the account of the Company, if the Shareholder Request shall
have been received by the Company after the Company shall have advised holders
of Registrable Securities that the Company is contemplating commencing an
underwritten registration initiated by the Company (or, in the case of a
Shareholder Request pursuant to Section 2.3 hereof, if the Company shall advise
such holders of such intention prior to the expiration of the time period set
forth in Section 8.01 of the Merger Agreement); PROVIDED, HOWEVER, that the
Company will use reasonable efforts to cause any such registration statement to
be filed and to become effective as expeditiously as shall be reasonably
possible.
2.05 REGISTRATION PROCEDURES. If and whenever the Company is required by
the provisions of this Article II to use its best efforts to effect the
registration of any securities under the Securities Act, the Company will within
the time periods provided herein:
(a) prepare and file with the Commission a registration statement with
respect to such securities and use its best efforts to cause such
registration statement to become and remain effective for a period of time
required for the disposition of such securities by the holders thereof;
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
and to comply with the provisions of the Securities Act with respect to the
sale or other disposition of all securities covered by such registration
statement until the earlier of such time as all of such securities have been
disposed of and the date which is ninety (90) days after the date of initial
effectiveness of such registration statement and not file any amendment or
supplement to such registration statement or prospectus to which the
Shareholders shall have reasonably objected on the grounds that such
amendment or supplement does not comply in all material respects with the
requirements of the Securities Act, having been furnished with a copy
thereof at the earliest practicable date;
(c) furnish to each seller and to each duly authorized underwriter of
each seller such number of authorized copies of a prospectus, including
copies of a preliminary prospectus, in conformity with the requirements of
the Securities Act, and such other documents as such seller or underwriter
may reasonably request in order to facilitate the public sale or other
disposition of the securities owned by such seller;
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(d) use its best efforts to register or qualify the securities covered
by such registration statement under such securities or blue sky laws of
such jurisdictions as each seller shall request, and do any and all other
acts and things which may be necessary under such securities or blue sky
laws to enable such seller to consummate the public sale or other
disposition in such jurisdictions of the securities to be sold by such
seller, except that the Company shall not for any such purpose be required
to qualify to do business in any jurisdiction wherein it is not qualified or
to file any general consent to service of process in any such jurisdiction;
(e) before filing the registration statement or prospectus or amendments
or supplements thereto or any other documents related thereto, furnish to
counsel selected by the holders of Registrable Securities included in such
registration statement copies of all such documents proposed to be filed,
all of which shall be subject to the reasonable approval of such counsel;
(f) furnish, at the request of any seller, (1) to the underwriters, on
the date that such seller's securities are delivered to the underwriters for
sale pursuant to such registration, an opinion of the independent counsel
representing the Company for the purposes of such registration addressed to
such underwriters and to such seller, in such form and content as the
underwriters and such seller may reasonably request, or (2) if such
securities are not being sold through underwriters, then to the sellers, on
the date that the registration statement with respect to such securities
becomes effective, an opinion, dated such date, of the independent counsel
representing the Company for the purposes of such registration in such form
and content as such seller may reasonably request; and in the case of
clauses (1) and (2) above, a letter dated such date, from the independent
certified public accountants of the Company addressed to the underwriters,
if any, and if such securities are not being sold through underwriters, then
to the sellers and, if such accountants refuse to deliver such letter to
such sellers, then to the Company, stating that they are independent
certified public accountants within the meaning of the Securities Act and
that, in the opinion of such accountants, the financial statements and other
financial data of the Company included in the registration statement or the
prospectus, or any amendment or supplement thereto, comply as to form in all
material respects with the applicable accounting requirements of the
Securities Act and covering such other matters as are customarily covered in
accountant's "comfort" letters;
(g) enter into customary agreements (including an underwriting agreement
in customary form) and take such other actions as are reasonably required in
order to expedite or facilitate the disposition of such securities;
(h) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such registration
statement;
(i) notify the Shareholders, at any time when a prospectus relating
thereto covered by such registration statement is required to be delivered
under the Securities Act, of the happening of any event as a result of which
the prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in the light of the circumstances then existing and,
at the request of the Shareholders properly prepare and furnish to the
Shareholders a reasonable number of copies of a supplement to or an
amendment of such prospectus as may be necessary so that, as thereafter
delivered to purchasers of such securities, such prospectus shall not
include an untrue statement of a material fact or omit to state a material
fact required to be stated therein or necessary to make the statements
therein not misleading in light of the circumstances under which they were
made;
(j) use its best efforts to list all Registrable Securities covered by
such registration statement on any securities exchange on which any class of
Registrable Securities is then listed; and
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(k) otherwise use its best efforts to comply with all applicable rules
and regulations of the Commission, and make available to its security
holders, as soon as reasonably practicable, but not later than 18 months
after the effective date of the registration statement, an earnings
statement covering the period of at least 12 months beginning with the first
full calendar month after the effective date of such registration statement,
which earnings statements shall satisfy the provisions of Section 11(a) of
the Securities Act.
2.06 EXPENSES. All expenses incurred in effecting the registrations
provided for in this Article II (excluding underwriters' discounts and
commissions which shall be borne pro rata by those holders for whom Registrable
Securities are being registered and, other than as provided at the end of this
Section 2.6, fees of counsel to the holders of Registrable Securities),
including without limitation all registration and filing fees (including all
expenses incident to filing with the NASD Regulation, Inc. and any securities
exchange), printing expenses, fees and disbursements of counsel for the Company,
fees of the Company's independent auditors and accountants, expenses of any
audits incident to or required by any such registration and expenses of
complying with the securities or blue sky laws of any jurisdictions pursuant to
subsection 2.4(d) hereof, shall be paid by the Company, and the Company shall
pay the fees and disbursements of one counsel reasonably satisfactory to the
Company for the holders of Registrable Securities for performance of the normal
and customary functions of counsel for selling shareholders in each registration
provided for in this Article II.
2.07 MARKETING RESTRICTIONS. (a) If (i) any holder of Registrable
Securities wishes to register any Registrable Securities in a registration made
pursuant to Section 2.1, 2.2 or 2.3 hereof, (ii) the offering proposed to be
made by such holder or holders is to be an underwritten public offering, (iii)
the Company or one or more holders of securities other than Registrable
Securities to whom the Company has granted registration rights wish to register
securities in such registration and (iv) the managing underwriters of such
public offering furnish a written opinion that the total amount of securities to
be included in such offering would exceed the maximum amount of securities (as
specified in such opinion) which can be marketed in such offering at a price
which such holders of Registrable Securities are prepared to sell and without
materially and adversely affecting such offering; then the rights of holders of
Registrable Securities, the Company and the holders of other securities with
registration rights to participate in such offering shall be in the following
order of priority:
FIRST: Subject to the rights of the holders of Registrable Securities
(as defined in the Prior Registration Rights Agreement), the holders of
Registrable Securities requesting registration shall be entitled to
participate in proportion to the number of Registrable Securities so
requested to be registered by each such holder; and then
SECOND: The Company and all holders of securities other than Registrable
Securities having the right to include such securities in such registration
shall be entitled to participate pro rata among themselves in accordance
with the number of securities requested to be registered by the Company and
each such holder;
and no securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition by
the Company in a transaction which would require registration under the
Securities Act (including any additional offering which is to be registered
pursuant to Section 2.1) until the expiration of 180 days after the effective
date of the registration statement requested pursuant to this Article II or such
shorter period as may be acceptable to the holders of Registrable Securities
participating in such underwritten offering.
(b) If (i) any holder of Registrable Securities requests registration of
Registrable Securities under Section 2.2, (ii) the offering proposed to be made
is to be an underwritten public offering and (iii) the managing underwriters of
such public offering furnish a written opinion that the total amount of
securities to be included in such offering would exceed the maximum amount of
securities (as specified in such opinion) which can be marketed at a price
reasonably related to the then current market value of such
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securities and without materially and adversely affecting such offering; then
the rights of the Company and the holders of Registrable Securities and other
securities having the right to include such securities in such registration to
participate in such offering shall be in the following order of priority:
FIRST: The Company shall be entitled to participate in accordance with
the number of securities requested to be registered by the Company; and then
SECOND: Subject to the rights of the holders of Registrable Securities
(as defined in the Prior Registration Rights Agreement), all holders of
securities, including holders of Registrable Securities, having the right to
include such securities in such registration shall be entitled to
participate pro rata among themselves in accordance with the number of
securities requested to be registered by each such holder;
and no securities (issued or unissued) other than those registered and included
in the underwritten offering shall be offered for sale or other disposition by
the holders of Registrable Securities in a transaction which would require
registration under the Securities Act (including any additional offering which
is to be registered pursuant to Section 2.1) until the expiration of 180 days
after the effective date of the registration statement in which Registrable
Securities were included pursuant to Section 2.2 or such shorter period as may
be acceptable to the Company.
2.08 TIME LIMITATIONS; TERMINATION OF RIGHTS. Notwithstanding the
foregoing provisions of this Article II, the rights to registration shall
terminate as to any particular Registrable Securities when (i) such Registrable
Securities shall have been effectively registered under the Securities Act and
sold by the holder thereof in accordance with such registration, (ii) such
Registrable Securities shall have been sold in compliance with Rule 144
promulgated under the Securities Act or (iii) written opinions from counsel
reasonably acceptable to the Company and the Shareholders, to the effect that
such Registrable Securities may be sold without registration under the
Securities Act or applicable state law and without restriction as to the volume
and timing of such sales, shall have been received from either counsel to the
Company or counsel to the holders thereof.
2.09 COMPLIANCE WITH RULE 144. At the request of any holder of Registrable
Securities who proposes to sell Registrable Securities in compliance with Rule
144 promulgated under the Securities Act, assuming that at such time the
provisions of such Rule are applicable to such holder and, in the event such
holder is or could be deemed to be an "affiliate" of the Company within the
meaning of the Securities Act, and the Company is then required to file reports
under Section 13 or 15(d) of the Securities Exchange Act of 1934, as amended
(the "Exchange Act"), the Company shall (a) forthwith furnish to such holder a
written statement as to its compliance with the filing requirements of the
Commission as set forth in such Rule, as such Rule may be amended from time to
time, and (b) make such additional filings of reports with the Commission as
will enable the holders to make sales of Registrable Securities pursuant to such
Rule. At all times during which this Agreement is effective, the Company shall
file with the Commission and, if applicable, The NASDAQ Stock Market, Inc.
("NASDAQ"), in a timely manner, all reports and other documents required to be
filed by the Company, (i) with the Commission pursuant to the Exchange Act, and
(ii) with NASDAQ pursuant to its rules and regulations.
2.10 COMPANY'S INDEMNIFICATION. In the event of any registration under the
Securities Act of any Registrable Securities pursuant to this Article II, the
Company hereby agrees to execute an agreement with any underwriter participating
in the offering thereof containing such underwriter's standard representations
and indemnification provisions and to indemnify and hold harmless each holder
disposing of Registrable Securities, each Person, if any, who controls such
holder within the meaning of the Securities Act and each other Person (including
each underwriter and each Person who controls such underwriter) who participates
in the offering of Registrable Securities, against any losses, claims, damages
or liabilities, joint or several, to which such holder, controlling person or
participating person may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or proceedings in
respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any
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material fact contained in any registration statement under which the
Registrable Securities are registered under the Securities Act, in any
preliminary prospectus or final prospectus contained therein, or in any
amendment or supplement thereto, or arise out of or are based upon the omission
or alleged omission to state therein a material fact required to be stated
therein or necessary to make the statements therein not misleading, and will
reimburse each such holder, controlling person and participating person for any
legal or other expenses reasonably incurred in connection with investigating or
defending any such loss, claim, damage, liability or proceeding; PROVIDED,
HOWEVER, that the Company will not be liable in any case to any such holder,
controlling person or participating person to the extent that any loss, claim,
damage or liability results from any untrue statement or alleged untrue
statement or omission or alleged omission made in such registration statement,
preliminary or final prospectus or amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such holder or any other person who participates as an
underwriter in the offering or sale of such securities, in either case,
specifically stating that it is for use in the preparation thereof or
controlling or participating person, as the case may be, specifically for use in
the preparation thereof. Such indemnity shall remain in full force and effect
regardless of any investigation made by or on behalf of the Shareholders or any
such underwriter or controlling person and shall survive the transfer of such
securities by the Shareholders and the expiration or termination of this
Agreement.
2.11 INDEMNIFICATION BY HOLDER. As a condition of the Company's obligation
under this Article II to effect any registration under the Securities Act, there
shall be delivered to the Company an agreement or agreements duly executed by
each holder for whom Registrable Securities are to be so registered, whereby
such holder agrees to indemnify and hold harmless (in the same manner as set
forth in Section 2.09 above) the Company, each person referred to in clause (1),
(2) or (3) of Section 11(a) of the Securities Act in respect of the registration
statement and each other person, if any, who controls the Company within the
meaning of the Securities Act, with respect to any untrue statement or alleged
untrue statement of any material fact contained in the registration statement
under which the Registrable Securities are to be registered under the Securities
Act, in any preliminary prospectus or final prospectus contained therein or in
any amendment or supplement thereto, or arise out of or are based upon the
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
which, in each case, is made in or omitted from the registration statement,
preliminary or final prospectus or amendment or supplement in reliance upon and
in conformity with written information furnished to the Company by an instrument
duly executed by such holder specifically for use in the preparation thereof;
PROVIDED, HOWEVER, that the indemnification obligations of each such holder
shall be limited to the net proceeds received by such holder from the sale of
Registrable Securities pursuant to such registration. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of the Company or any such underwriter or controlling person and shall
survive the transfer of such securities by the Shareholders and the expiration
or termination of this Agreement.
(b) At the request of the managing underwriter in connection with any
underwritten offering of the Company's securities, each holder for whom
Registrable Securities are being registered shall enter into an indemnity
agreement in customary form with such underwriter.
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2.12 CONTRIBUTION. If the indemnification provided for in Section 2.9 or
2.10 from the indemnifying party is unavailable to an indemnified party
hereunder, or is insufficient to hold harmless an indemnified party, in respect
of any losses, claims, damages, liabilities or expenses referred to therein,
then the indemnifying party, in lieu of indemnifying such indemnified party,
shall contribute to the amount paid or payable by such indemnified party as a
result of such losses, claims, damages, liabilities or expenses in such
proportion as is appropriate to reflect the relative fault of the indemnifying
party and indemnified parties in connection with the actions which resulted in
such losses, claims, damages, liabilities or expenses, as well as any other
relevant equitable considerations. The relative fault of such indemnifying party
and indemnified parties shall be determined by reference to, among other things,
whether any action in question, including any untrue or alleged untrue statement
of a material fact or omission or alleged omission to state a material fact, has
been made by, or relates to information supplied by, such indemnifying party or
indemnified parties, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such untrue statement or
omission. The amount paid or payable by an indemnified party as a result of the
losses, claims, damages, liabilities and expenses referred to above shall be
deemed to include any legal or other fees or expenses reasonably incurred by
such party in connection with any investigation or proceeding.
The parties hereto agree that it would not be just and equitable if
contribution pursuant to this Section 2.11 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
No Person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any
indemnifying party who was not guilty of such fraudulent misrepresentation.
2.13 NOTIFICATION OF AND PARTICIPATION IN ACTIONS. Promptly after receipt
by an indemnified party under this Article II of oral or written notice of a
claim or the commencement of any proceeding against it, such indemnified party
shall, if a claim in respect thereof is to be made against an indemnifying party
under such Article, give written notice to the indemnifying party of the
commencement thereof, but the failure so to notify the indemnifying party shall
not relieve it of any liability that it may have to any indemnified party except
to the extent the indemnifying party demonstrates that the defense of such
action is prejudiced thereby. In case any such proceeding shall be brought
against an indemnified party and it shall give notice to the indemnifying party
of the commencement thereof, the indemnifying party shall be entitled to
participate therein and, to the extent that it shall wish (unless the
indemnifying party is also a party to such proceeding and the indemnified party
determines in good faith that joint representation would be inappropriate) to
assume the defense thereof with counsel reasonably satisfactory to such
indemnified party and, after notice from the indemnifying party to such
indemnified party of its election so to assume the defense thereof, the
indemnifying party shall not be liable to such indemnified party under such
Article for any fees of other counsel or any other expenses with respect to the
defense of such proceeding, in each case, subsequently incurred by such
indemnified party in connection with the defense thereof. If an indemnifying
party assumes the defense of such proceeding, (a) no compromise or settlement
thereof may be effected by the indemnifying party without the indemnified
party's reasonable consent unless (i) there is no finding or admission of any
violation of law or any violation of the rights of any Person and no effect on
any other claims that may be made against the indemnified party and (ii) the
sole relief provided is monetary damages that are paid in full by the
indemnifying party and (b) the indemnifying party shall have no liability with
respect to any compromise or settlement thereof effected without its consent. If
notice is given to an indemnifying party of the commencement of any proceeding
and it does not, within fifteen (15) business days after the indemnified party's
notice is given, give notice to the indemnified party of its election to assume
the defense thereof, the indemnifying party shall be bound by any determination
made in such action or any compromise or settlement thereof effected by the
indemnified party. Notwithstanding the foregoing, if an indemnified party
determines in good faith that there is a reasonable probability that a
proceeding may adversely affect it or its affiliates other than as a result of
monetary damages, such indemnified party may, by notice to the indemnifying
party, assume the
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exclusive right to defend, compromise or settle such proceeding, but the
indemnifying party shall not be bound by any determination of a proceeding so
defended or any compromise or settlement thereof effected without its consent
(which shall not be unreasonably withheld). All indemnification obligations of
the parties hereto shall survive any termination of this Agreement pursuant to
Section 2.7 hereof.
2.14 UNDERWRITING REQUIREMENTS. (a) In the event of an underwritten
offering of the Company's securities, each holder for whom Registerable
Securities are being registered pursuant to Section 2.1, Section 2.2 or Section
2.3 hereof shall, as a condition to inclusion of such Registrable Securities in
such registration, execute and deliver to the underwriter an underwriting
agreement in customary form. The underwriters shall be selected (i) by the
holders of Registrable Securities, in the case of a registration pursuant to
Section 2.1 or Section 2.3 (which underwriters shall be acceptable to the
Company) or (ii) by the Company, in the case of a registration pursuant to
Section 2.2.
(b) At the request of the managing underwriter in connection with any
underwritten offering of the Company's securities, the holders for whom
Registrable Securities are being registered shall enter into customary "lock-up"
agreements pursuant to which each such holder will agree to not effect any sale
or distribution of Registrable Securities for a period of no more than 180 days
beginning on the effective date of any such registration (except as part of such
registration).
2.15 FURNISH INFORMATION. It shall be a condition precedent to the
obligations of the Company to take any action pursuant to Article II that the
holders furnish to the Company such information regarding them, the Registrable
Securities held by them and the intended method of disposition of such
securities as the Company shall reasonably request and as shall be required in
connection with the action to be taken by the Company.
ARTICLE III.
BENEFITS OF AGREEMENT
3.01 PERMITTED TRANSFERS. The registration rights granted herein may only
be transferred to a transferee who acquires Registrable Securities from any
Shareholder that is (i) the spouse or member of the immediate family of a
Shareholder; (ii) a trust for the benefit of a Shareholder or any member of such
Shareholder's immediate family; or (iii) a corporation, partnership or other
entity the only owners of which are one or more Shareholders and members of
their immediate families; provided that any transferring Shareholder gives
written notice at the time of such transfer to the Company stating the name and
address of the transferee and identifying the Registrable Securities so
transferred, accompanied by a signature page to this Agreement pursuant to which
such transferee agrees to be bound by the terms and conditions hereof.
ARTICLE IV.
MISCELLANEOUS
4.01 NO INCONSISTENT AGREEMENTS. The Company will not, at any time after
the effective date of this Agreement, enter into, and is not now a party to or
otherwise bound by, any agreement or contract (whether written or oral) with
respect to any of its securities which is inconsistent in any respect with the
registration rights granted by the Company pursuant to this Agreement.
4.02 NO OTHER GRANT OF REGISTRATION RIGHTS. The Company will not at any
time grant to any other persons any rights with respect to the registration of
any securities of the Company which have priority over or are inconsistent with
the registration rights granted by the Company pursuant to this Agreement.
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4.03 NOTICES. Notices and other communications provided for herein shall
be in writing and shall be given in the manner and with the effect provided in
the Merger Agreement. Such notices and communications shall be addressed if to a
holder of Registrable Securities, to its address as shown on the transfer
records of the Company, unless such holder shall notify the Company that notices
and communications should be sent to a different address (or facsimile number),
in which case notices and communications shall be sent to the address (or such
facsimile number) specified by such holder.
4.04 WAIVERS; AMENDMENTS. No failure or delay of any holder of Registrable
Securities in exercising any power or right hereunder shall operate as a waiver
thereof, nor shall any single or partial exercise of any such right or power, or
any abandonment or discontinuance of steps to enforce such a right or power,
preclude any other or further exercise thereof or the exercise of any other
right or power. The rights and remedies of such holder are cumulative and not
exclusive of any rights or remedies which it would otherwise have. The
provisions of this Agreement may be amended, modified or waived only by an
agreement in writing and any such waiver shall be effective only in the specific
instance and for the purpose for which given. Notwithstanding the foregoing, no
amendment, modification or waiver of any provision of this Agreement shall be
effective against a holder of Registrable Securities unless (a) agreed to in
writing by such holder or (b) agreed to in writing by such holder's predecessor
in interest and notation thereof is set forth on the certificate evidencing such
holder's Registrable Securities as the case may be. No notice or demand on the
Company in any case shall entitle the Company to any other or further notice or
demand in similar or other circumstances.
4.05 GOVERNING LAW. This Agreement shall be construed in accordance with
and governed by the laws of the State of Delaware without giving effect to the
conflicts of law principles thereof.
4.06 COVENANTS TO BIND SUCCESSORS AND ASSIGNS. All the covenants,
stipulations, promises and agreements in this Agreement contained by or on
behalf of the Company shall bind its successors and assigns, whether so
expressed or not.
4.07 SEVERABILITY. In case any one or more of the provisions contained in
this Agreement shall be invalid, illegal or unenforceable in any respect, the
validity, legality and enforceability of the remaining provisions contained
herein and therein shall not in any way be affected or impaired thereby. The
parties shall endeavor in good faith negotiations to replace the invalid,
illegal or unenforceable provisions with valid provisions the economic effect of
which comes as close as possible to that of the invalid, illegal or
unenforceable provisions.
4.08 SECTION HEADINGS. The section headings used herein are for
convenience of reference only, are not part of this Agreement and are not to
affect the construction of or be taken into consideration in interpreting this
Agreement.
4.09 EXPENSES. Except as expressly otherwise provided herein, each party
shall bear its own expenses incurred in connection with the preparation,
execution and performance of this Agreement and the transactions contemplated
hereby, including all fees and expenses of agents, representatives, counsel and
accountants.
4.10 COUNTERPARTS. This Agreement may be executed in multiple
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that both
parties need not sign the same counterpart.
A-D-10
<PAGE>
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
executed, all as of the day and year above written.
VEECO INSTRUMENTS INC.
By: /s/ EDWARD H. BRAUN
-----------------------------------------
Name: Edward H. Braun
Title: Chief Executive Officer and
President
/s/ JOHN B. HAYES
-----------------------------------------
John B. Hayes
/s/ JAMES C. WYANT
-----------------------------------------
James C. Wyant
/s/ LOUISE WYANT
-----------------------------------------
Louise Wyant
A-D-11
