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.
"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 Xxxx Xxxxx, Xxxxx
X. Xxxxx and Xxxxxx Xxxxx (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
2
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;
3
(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
4
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
5
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
6
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
7
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
8
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
9
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
10
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
11
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
12
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.
13
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/ Xxxxxx X. Xxxxx
------------------------------
Name:
Title:
/s/ Xxxxxx Xxxxxx
-------------------------------
XXXXXX XXXXXX
/s/ Xxxxx Xxxxxx Xxxxx
------------------------------
XXXXX XXXXXX-XXXXX
/s/ Xxxxxxx Xxxxxx
------------------------------
XXXXXXX XXXXXX
/s/ Xxxxxxx Xxxxxx
------------------------------
XXXXXXX XXXXXX
/s/ Xxxx Xxxxxx
------------------------------
XXXX XXXXXX
/s/ Xxxxxx Xxxxxxxx
/s/ Xxxxxx Xxxxxx Xxxxxxxx
------------------------------
XXXXXX XXXXXXXX AND
XXXXXX XXXXXX XXXXXXXX,
husband and wife, as community
property
14
/s/ Xxxxx Xxxxxxx
------------------------------
XXXXX XXXXXXX
/s/ Xxxx Xxxxxxx
------------------------------
XXXX XXXXXX
15
