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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)
JOHN A. GURLEY
C/O DIGITAL INSTRUMENTS
112 ROBIN HILL ROAD
SANTA BARBARA, CA 93117
(805) 967-1400
(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
MAY 29, 1998
(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 that is the subject of this Schedule 13D, and is filing this
schedule because of Sections 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check
the following box [ ].
Note: Schedules filed in paper format shall include a signed original and five
copies of this schedule, including all exhibits. See Section 13d-7(b) for other
parties to whom copies are to be sent.
Page 1 of 8 pages.
Exhibit Index on page 8.
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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 8 pages.
Exhibit Index on page 8.
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SCHEDULE 13D
CUSIP NO. 922 417-100 Page 3 of 8 Pages
1 NAMES OF REPORTING PERSONS
S.S. OR I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS
John A. Gurley
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)
OO
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
1,594,681 shares of Common Stock
SHARES
8 SHARED VOTING POWER
BENEFICIALLY
-0-
OWNED BY
9 SOLE DISPOSITIVE POWER
EACH 1,594,681 shares of Common Stock
REPORTING
10 SHARED DISPOSITIVE POWER
PERSON -0-
WITH
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
1,594,681 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 11.0% (based on 8,966,243 shares outstanding on
May 11, 1998 and an additional 5,583,721 shares issued on May
29, 1998)
14 TYPE OF REPORTING PERSON (SEE INSTRUCTIONS)
IN
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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 A. Gurley (the
"Reporting Person"). Mr. Gurley's business address is c/o Digital Instruments,
112 Robin Hill Road, Santa Barbara, CA 93117. He is a director of the Issuer.
Mr. Gurley 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. Gurley 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 February 28, 1998, as amended (the
"Merger Agreement"), among the Issuer, Digital Instruments, Inc., a California
corporation ("Digital"), and the securityholders of Digital. Pursuant to the
terms of the Merger Agreement, Digital merged with and into the Issuer (the
"Merger"), with the Issuer being the surviving corporation. The Reporting
Person held 14,850 shares of common stock of Digital, which were converted,
pursuant to the terms of the Merger Agreement, into the right to receive
1,594,681 shares of Common Stock of the Issuer.
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
Page 4 of 8 pages.
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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 1,594,681
shares of Common Stock, representing approximately 11.0% of the outstanding
shares of Common Stock (based on the number of shares of Common Stock
outstanding as of May 11, 1998 and the number of shares of Common Stock issued
in the Merger).
(b) The Reporting Person became a director of the Issuer on May 29, 1998.
He holds the sole power to vote or to direct the vote and to dispose or to
direct the disposition of the 1,594,681 shares of Common Stock.
(c) During the past sixty (60) days, the Reporting Person has received
1,594,681 shares of Common Stock in exchange for 14,850 shares of common stock
of Digital pursuant to the terms of the Merger Agreement.
Except as set forth above, the Reporting Person does not beneficially own
any shares of Common Stock and has not effected any 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 1,594,681 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 AGREEMENT. As of May 8, 1998, 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 as financial results covering at least
30 days of the combined operations of the Issuer and Digital after the effective
date of the Merger 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
Page 5 of 8 pages.
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income of the Issuer and Digital. The Reporting Person has 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 1,594,681 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 May 29, 1998, the Reporting
Person and the other former shareholders of Digital, entered into a Registration
Rights Agreement (the "Registration Rights Agreement") with the Issuer which
provides the Reporting Person and such former Digital shareholders with certain
registration rights for the shares of Common Stock received by them pursuant to
the Merger Agreement. Pursuant to the terms of the Registration Rights
Agreement, under certain circumstances the Reporting Person, together with other
former shareholders of Digital, may cause the Issuer to register their shares of
Common Stock with the SEC for public sale thereof. The Reporting Person also
received "piggyback" 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 8, 1998, between John A. Gurley
and the Issuer.
2. Registration Rights Agreement, dated as of May 29, 1998, among the
Issuer, John A. Gurley and the other shareholders set forth on the
signature pages thereto.
Page 6 of 8 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 June 4, 1998
/s/ John A. Gurley
------------------------
John A. Gurley
Page 7 of 8 pages.
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INDEX TO EXHIBITS
EXHIBIT PAGE NO. IN
- ------- SEQUENTIAL
NUMBERING SYSTEM
----------------
1. Affiliates Agreement, dated as of May 8, 1998,
between John A. Gurley and the Issuer.
2. Registration Rights Agreement, dated as of
May 29, 1998, among the Issuer, John A. Gurley
and the other shareholders set forth on the
signature pages thereto.
Page 8 of 8 pages.
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AFFILIATES AGREEMENT
THIS AFFILIATES AGREEMENT (the "Affiliates Agreement") is entered into as
of the 8th day of May, 1998 between Veeco Instruments Inc., a Delaware
corporation ("Acquiror"), and the undersigned shareholder (the "Shareholder") of
Digital Instruments, Inc. a California corporation ("Target").
RECITALS
A. Target and Acquiror have entered into an Agreement and Plan of Merger,
dated February 28, 1998 (the "Merger Agreement"), pursuant to which Target will
be merged into Acquiror (the "Merger").
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 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
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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 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 January 1, 1996. 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
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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 that certain Affiliates Agreement,
dated as of May 8, 1998, between Acquiror and John Gurley, 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.
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(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.
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
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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
Digital Instruments, Inc.
112 Robin Hill Road
Santa Barbara, CA 93117
Attention: Virgil Elings and Richard Clark, Esq.
Tel: (805)-967-1400
Fax: (805)-967-7717
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
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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.
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.
ACQUIROR SHAREHOLDER
By:/s/ Edward H. Braun /s/ John Gurley
------------------------- ------------------------
Edward H. Braun (Signature)
Chairman, President and
Chief Executive Officer John Gurley
------------------------
(Print Name)
2991 Kenmore Place
Santa Barbara, CA 93105
------------------------
(Print Address)
805-687-9773
------------------------
(Print Telephone Number)
6
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REGISTRATION RIGHTS AGREEMENT
REGISTRATION RIGHTS AGREEMENT, dated as of May 29, 1998, among Veeco
Instruments Inc., a Delaware corporation (the "Company"), and the shareholders
set forth on the signature pages hereto (collectively, the "Shareholders").
WHEREAS, the Company, Digital Instruments, Inc., a California
corporation ("Digital") and the Shareholders have entered into an Agreement and
Plan of Merger dated as of February 28, 1998, as amended (the "Merger
Agreement"), pursuant to which Digital will merge with and into the Company with
the result that the Company will be the surviving corporation (the "Merger");
and
WHEREAS, pursuant to the terms of the Merger, the Shareholders' common
shares of Digital, 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.
<PAGE>
"SHARES" means shares of the Company's Common Stock, par value $.01
per share.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
ARTICLE II
REGISTRATION RIGHTS
2.1 DEMAND REGISTRATION. (a) If on any occasion after the first
anniversary of the date hereof one or more of the holders of Registrable
Securities 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 30% of any and all Registrable Securities then outstanding, the
Company will so notify all holders of Registrable Securities. Upon written
request (the "Shareholder Request") of any holder of Registrable Securities
given within 30 days after the receipt by such holder from the Company of such
notification, the Company, subject to its obligations under the Registration
Rights Agreement, dated as of December 6, 1994 among the Company and the
investors and management shareholders named therein and the Registration Rights
Agreement, dated as of June 25, 1997 between the Company and John Hayes, James
C. Wyant and Louise Wyant (collectively, the "Prior Registration Rights
Agreements"), 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 holder 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 last properly given Shareholder Request) as would
permit or facilitate the sale and distribution of such holder's Registrable
Securities as are specified in such Shareholder Request. Except as provided in
Section 2.6 hereof, 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.
2.2 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 or
any shelf registration effected pursuant to the Prior Registration Rights
Agreements), 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 of 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
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Prior Registration Rights Agreements, 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.
2.3 LIMITATION ON REGISTRATION REQUIREMENT. (a) The Company shall
have the right to postpone for up to 75 days any registration required pursuant
to Section 2.1 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 hereof more than once in any twelve-month
period).
(b) The Company shall not be obligated or required to effect any
registration pursuant to Section 2.1(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;
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.
2.4 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;
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(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;
(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;
(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
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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 holders of Registrable Securities included in
such registration statement, 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 such holders properly prepare and furnish to such holders 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 the
Shares are then listed; and
(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
statement shall satisfy the provisions of Section 11(a) of the Securities Act.
2.5 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 in the last sentence
of this Section 2.5, 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
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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. In addition, 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.
2.6 MARKETING RESTRICTIONS. (a) If (i) any holder(s) of Registrable
Securities wish(es) to register any Registrable Securities in a registration
made pursuant to Section 2.1 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: The holders of Registrable Securities (as defined herein)
and holders of Registrable Securities (as defined in the Prior Registration
Rights Agreements) having the right to include such securities in such
registration shall be entitled to participate in proportion to the number
of Registrable Securities (as defined herein and in the Prior Registration
Rights Agreements) requested to be registered by each such holder; and then
SECOND: The Company and all holders of securities other than
Registrable Securities (as defined herein and in the Prior Registration
Rights Agreements) 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) In the event the holders of Registrable Securities
requesting registration pursuant to Section 2.1 hereof are unable to register
and sell in such registration in the aggregate at least 75% of the Registrable
Securities so requested to be registered by reason of
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the operation of the priority rules set forth in paragraph (a) of this Section
2.6, the Company shall be required to effect an additional registration pursuant
to Section 2.1 upon the request of holders of Registrable Securities made in
accordance with such Section 2.1; PROVIDED, HOWEVER, (i) the Company shall not
be required to effect more than one additional registration pursuant to this
Section 2.6(b), (ii) the Company shall not be required to effect an additional
registration pursuant to this Section 2.6(b) unless the aggregate number of
Registrable Securities to be registered in connection therewith is greater than
750,000 and (iii) the Company shall not be required to effect an additional
registration pursuant to this Section 2.6(b) within a period of six months after
the effective date of the prior registration effected pursuant to Section 2.1.
(c) 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
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 Agreements), all
holders of securities, including holders of Registrable Securities (as
defined herein), 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.
2.7 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 holder of such Registrable
Securities, to the effect that such Registrable Securities may
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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.
2.8 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 holder 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.
2.9 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 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
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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 any holder
disposing of Registrable Securities or any such underwriter or controlling
person and shall survive the transfer of such securities by such holder and the
expiration or termination of this Agreement.
2.10 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 2.9 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 person indemnified by virtue of this Section 2.10
and shall survive the transfer of such securities by such holder 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.
2.11 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
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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.
2.12 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
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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 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.
2.13 UNDERWRITING REQUIREMENTS. (a) In the event of an underwritten
offering of the Company's securities, each holder for whom Registrable
Securities are being registered pursuant to Section 2.1 or Section 2.2 hereof
shall, as a condition to inclusion of such Registrable Securities in such
registration, execute and deliver to the underwriter(s) an underwriting
agreement in customary form. The underwriter(s) shall be selected (i) by the
holders requesting registration of Registrable Securities, in the case of a
registration pursuant to Section 2.1 (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).
2.14 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 requesting registration of Registrable Securities 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
3.1 PERMITTED TRANSFERS. The registration rights granted herein may
only be transferred to a transferee who acquires Registrable Securities from any
Shareholder and is (i) the spouse or member of the immediate family of a
Shareholder; (ii) a trust for the benefit of a
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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
4.1 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;
PROVIDED, HOWEVER, that the rights of the holders of Registrable Securities
hereunder are subject to the rights of holders of Registrable Securities (as
defined in the Prior Registration Rights Agreements to the extent provided in
the Prior Registration Rights Agreements).
4.2 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.
4.3 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.
4.4 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
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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.
4.5 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.
4.6 COVENANTS TO BIND SUCCESSORS AND ASSIGNS. All the covenants,
stipulations, promises and agreements in this Agreement made by or on behalf of
the Company shall bind its successors and assigns, whether so expressed or not.
4.7 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.
4.8 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.
4.9 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 parties, it being understood that all
parties need not sign the same counterpart.
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<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:
Title:
/s/ Virgil Elings
-------------------------------
VIRGIL ELINGS
/s/ Betty Elings Wells
------------------------------
BETTY ELINGS-WELLS
/s/ Jeffrey Elings
------------------------------
JEFFREY ELINGS
/s/ Michael Elings
------------------------------
MICHAEL ELINGS
/s/ John Gurley
------------------------------
JOHN GURLEY
/s/ Mathew Longmire
/s/ Pamela Wrobel Longmire
------------------------------
MATHEW LONGMIRE AND
PAMELA WROBEL LONGMIRE,
husband and wife, as community
property
14
<PAGE>
/s/ Peter Maivald
------------------------------
PETER MAIVALD
/s/ Mark Rodgers
------------------------------
MARK ROGERS
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