EXHIBIT 5.1
AGREEMENT AND PLAN OF MERGER
AMONG
VEECO INSTRUMENTS INC.,
VEECO ACQUISITION CORP.
AND
CVC, INC.
FEBRUARY 29, 2000
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TABLE OF CONTENTS
PAGE
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I. DEFINITIONS..................................................................1
1.01 Certain Definitions.....................................................1
II. THE MERGER..................................................................11
2.01 The Merger.............................................................11
2.02 Effective Time of the Merger...........................................11
2.03 Closing of the Merger..................................................11
2.04 Effects of the Merger..................................................12
2.05 Conversion of Shares...................................................12
2.06 Closing of the Company's Transfer Books................................13
2.07 Exchange of Certificates...............................................14
2.08 Tax Consequences.......................................................15
2.09 Accounting Consequences................................................15
2.10 Further Action.........................................................16
2.11 Subsequent Action......................................................16
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY...............................16
3.01 Due Organization; Subsidiaries; Etc....................................16
3.02 Capitalization.........................................................17
3.03 Authorization..........................................................17
3.04 Reports................................................................18
3.05 No Undisclosed Liabilities.............................................18
3.06 Compliance with Law; Governmental Authorizations.......................18
3.07 No Conflicts...........................................................19
3.08 Contracts..............................................................19
3.09 Litigation.............................................................21
3.10 Taxes..................................................................21
3.11 Absence of Certain Changes.............................................22
3.12 Employee Benefit Plans.................................................23
3.13 Intellectual Property..................................................26
3.14 Environmental Matters..................................................29
3.15 Labor Relations........................................................30
3.16 Brokers and Finders....................................................31
3.17 Accuracy of Representations and Warranties.............................31
3.18 Pooling of Interests; Reorganization...................................31
3.19 Board of Recommendation................................................31
3.20 Fairness Opinion.......................................................31
3.21 State Antitakeover Statutes............................................31
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IV. REPRESENTATIONS AND WARRANTIES OF VEECO AND ACQUISITION.....................32
4.01 Organization of Veeco and Acquisition..................................32
4.02 Capitalization.........................................................33
4.03 Non-Contravention......................................................33
4.04 Reports................................................................34
4.05 Absence of Certain Changes.............................................34
4.06 No Undisclosed Liabilities.............................................35
4.07 Litigation.............................................................35
4.08 Restrictions on Business Activities....................................35
4.09 Governmental Authorization.............................................35
4.10 Taxes..................................................................35
4.11 Pooling of Interests; Reorganization...................................36
4.12 Brokers and Finders....................................................36
4.13 Accuracy of Representations and Warranties.............................36
4.14 Board Recommendation...................................................36
4.15 Fairness Opinion.......................................................37
4.16 Compliance With Laws...................................................37
4.17 Environmental Matters..................................................37
4.18 Intellectual Property Rights...........................................38
V. COVENANTS...................................................................40
5.01 Access.................................................................40
5.02 Conduct of the Business of the Parties Pending the Closing Date........40
5.03 Conduct of Business of the Company and Veeco...........................41
(a) Charter Documents......................................41
(b) Dividends; Changes in Capital Stock....................41
(c) Pooling; Reorganization................................42
(d). Other.................................................42
5.04 Consents...............................................................42
5.05 Stock Options..........................................................43
5.06 Employee Benefits......................................................44
5.07 Indemnification of Officers and Directors..............................44
5.08 Pooling of Interests...................................................45
5.09 Environmental Transfer Laws............................................45
5.10 Tax Matters............................................................45
5.11 Letters of the Parties' Accountants....................................46
5.12 Listing................................................................46
5.13 Board of Directors; Xxxxxxx Employment Agreement.......................47
5.14 Notice of Breach; Disclosure...........................................47
5.15 Payment of Indebtedness by Affiliates..................................47
5.16 No Solicitation -- Company.............................................47
5.17 No Solicitation -- Veeco...............................................49
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5.18 Blue Sky Laws..........................................................50
5.19 Additional Agreements..................................................50
5.20 Disclosure.............................................................50
5.21 Affiliate Agreements...................................................51
5.22 Registration Statement; Joint Proxy Statement..........................51
5.23 Company Stockholders' Meeting..........................................52
5.24 Veeco Stockholders' Meeting............................................53
VI. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES .....................54
VII. CONDITIONS PRECEDENT TO VEECO'S AND ACQUISITION'S
OBLIGATIONS.................................................................55
7.01 Representations and Warranties.........................................55
7.02 Performance of Covenants...............................................55
7.03 Consents...............................................................55
7.04 Agreements and Documents...............................................55
7.05 Material Adverse Effect................................................56
7.06 Registration Rights Agreement..........................................56
VIII. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY..........................56
8.01 Representations and Warranties.........................................56
8.02 Performance of Covenants...............................................57
8.03 Consents and Approvals.................................................57
8.04 Material Adverse Effect................................................57
8.05 Documents..............................................................57
IX. TERMINATION.................................................................57
9.01 Termination............................................................57
9.02 Effect of Termination..................................................59
9.03 Expenses; Termination Fees.............................................59
X. MISCELLANEOUS...............................................................61
10.01 Successors............................................................61
10.02 Amendment.............................................................61
10.03 Waiver................................................................61
10.04 No Survival of Representations and Warranties; Survival of Tax
Comments....................................................................61
10.05 Entire Agreement; Counterparts........................................62
10.06 Governing Law.........................................................62
10.07 Disclosure Schedules..................................................62
10.08 Attorneys' Fees.......................................................62
10.09 Assignment............................................................62
10.10 Notices...............................................................62
10.11 Headings..............................................................63
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10.12 Exhibits and Schedules...............................................63
10.13 Severability.........................................................64
10.14 No Third-Party Beneficiaries.........................................64
EXHIBITS
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Exhibit A Company Stockholder Voting Agreement
Exhibit B Veeco Stockholder Voting Agreement
Exhibit C Certificate of Merger
Exhibit X Xxxxxxx Employment Agreement
Exhibit E Form of Company Affiliate Agreement
Exhibit F Form of Veeco Affiliate Agreement
SCHEDULES
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Schedule A Company Stockholders Subject to Company Stockholder Voting Agreement
Schedule B Veeco Stockholders Subject to Veeco Stockholder Voting Agreement
Schedule C Company Affiliates
Schedule D Veeco Affiliates
Schedule E Officers of Acquisition Immediately Prior to the Effective Time
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "MERGER AGREEMENT"), is made as of
February 29, 2000, by and among Veeco Instruments Inc., a Delaware corporation
("VEECO"), Veeco Acquisition Corp., a Delaware corporation and a newly-formed
wholly-owned first tier subsidiary of Veeco ("ACQUISITION"), and CVC, Inc., a
Delaware corporation (the "COMPANY").
WHEREAS, The Boards of Directors of the Company, Acquisition and Veeco have
determined that it is advisable and in the best interests of their respective
stockholders for Acquisition to merge with and into the Company, with the result
that the Company shall be the surviving corporation and shall become a
wholly-owned subsidiary of Veeco (the "MERGER"), all upon the terms and
conditions set forth herein and in accordance with the provisions of the
Delaware General Corporation Law (the "DGCL").
WHEREAS, Veeco has entered into that certain Voting Agreement in the form
attached hereto as EXHIBIT A (the "COMPANY STOCKHOLDER VOTING AGREEMENT"), dated
as of the date hereof, with the stockholders of the Company listed on SCHEDULE A
to this Merger Agreement. Pursuant to the Company Stockholder Voting Agreement,
such stockholders of the Company have granted to Veeco irrevocable proxies to
vote the shares of Company Common Stock (as defined) held by them in favor of
approving this Merger Agreement, the Merger and the other transactions
contemplated hereby, and against any action, any failure to act, or agreement
that would result in a breach of any covenant, representation or agreement of
the Company under this Merger Agreement.
WHEREAS, the Company has entered into that certain Voting Agreement in the
form attached hereto as EXHIBIT B (the "VEECO STOCKHOLDER VOTING AGREEMENT"),
dated as of the date hereof, with the stockholders of Veeco listed on SCHEDULE B
to this Merger Agreement. Pursuant to the Veeco Stockholder Voting Agreement,
such stockholders of Veeco have granted to the Company irrevocable proxies to
vote the Veeco Shares (as defined) held by them in favor of approving this
Merger Agreement, the Merger and the other transactions contemplated hereby, and
against any action, any failure to act, or agreement that would result in a
breach of any covenant, representation or agreement of Veeco under this Merger
Agreement.
WHEREAS, the Merger is intended to qualify as a reorganization, as
described in Section 368(a) of the Code (as defined below).
NOW, THEREFORE, in consideration of the mutual covenants set forth herein
and for other good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be legally
bound, hereby agree as follows:
I. DEFINITIONS.
1.01 CERTAIN DEFINITIONS. For purposes of this Merger Agreement, the
following terms shall have the following meanings:
"ACQUIRED CORPORATIONS" shall mean the Company, together with each of its
Subsidiaries.
"ACQUISITION" shall have the meaning set forth in the introductory
paragraph of this Merger Agreement.
"AFFILIATE" of any Person shall mean a Person which, directly or indirectly
through one or more intermediaries, controls, or is controlled by, or is under
common control with, such Person.
"BENEFIT PLANS" shall have the meaning set forth in Section 3.12(a).
"CERTIFICATE OF MERGER" shall have the meaning set forth in Section 2.02.
"CLOSING" shall have the meaning set forth in Section 2.03.
"CLOSING DATE" shall have the meaning set forth in Section 2.03.
"CLOSING PRICE PER SHARE" shall mean the closing price per Veeco Share as
reported by the NASDAQ on the trading day immediately preceding the Closing
Date.
"COBRA" shall have the meaning set forth in Section 3.12(g).
"CODE" shall mean the Internal Revenue Code of 1986, as amended, and the
rules and regulations promulgated thereunder.
"COMPANY" shall have the meaning set forth in the introductory paragraph to
this Merger Agreement.
"COMPANY ACQUISITION PROPOSAL" shall mean any offer, proposal, inquiry or
indication of interest (other than an offer, proposal, inquiry or indication of
interest by Veeco) contemplating or otherwise relating to any Company
Acquisition Transaction.
"COMPANY ACQUISITION TRANSACTION" shall mean any transaction or series of
transactions involving:
(a) any merger, consolidation, share exchange, business combination,
issuance of securities, acquisition of securities, tender offer, exchange offer
or other similar transaction (i) in which such the Company or any other Acquired
Corporation is a constituent corporation, (ii) in which a Person or "group" (as
defined in the Exchange Act and the rules promulgated thereunder) of Persons
directly or indirectly acquires beneficial or record ownership of securities
representing more than 20% of the outstanding securities of any class of voting
securities of the Company or another Acquired Corporation, or (iii) in which the
Company or an Acquired Corporation issues
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securities representing more than 20% of the outstanding securities of any class
of voting securities of the Company or such Acquired Corporation;
(b) any sale, lease, exchange, transfer, license, acquisition or
disposition of any business or businesses or assets that constitute or account
for 20% or more of the consolidated net revenues, net income or assets of the
Company or any other Acquired Corporation; or
(c) any liquidation or dissolution of the Company or any other Acquired
Corporation.
"COMPANY AFFILIATE" shall have the meaning set forth in Section 5.21(a).
"COMPANY AFFILIATE AGREEMENT" shall have the meaning set forth in Section
5.21(a).
"COMPANY AGENT" shall have the meaning set forth in Section 3.13(h).
"COMPANY BOARD RECOMMENDATION" shall have the meaning set forth in Sec-
tion 5.23(b).
"COMPANY BROKER" shall have the meaning set forth in Section 3.16.
"COMPANY COMMON STOCK" shall mean the common stock of the Company, par
value $0.01 per share.
"COMPANY DISCLOSURE SCHEDULE" shall mean the disclosure schedule that has
been prepared by the Company in accordance with the requirements of Section 9.07
hereof and that has been delivered by the Company to Veeco on the date of this
Merger Agreement and signed by the President of the Company.
"COMPANY FINANCIAL STATEMENTS" shall have the meaning set forth in Section
3.04.
"COMPANY INTELLECTUAL PROPERTY" shall have the meaning set forth in
Section 3.13(a).
"COMPANY-OWNED IP" shall have the meaning set forth in Section 3.13(g).
"COMPANY-OWNED IP REGISTRATIONS" shall have the meaning set forth in
Section 3.13(e).
"COMPANY SEC DOCUMENTS" shall mean each statement, report, registration
statement (including the related prospectus in the form filed pursuant to Rule
424(b) of the Securities Act) and definitive proxy statement, and all other
filings filed with the SEC by the Company since November 12, 1999 and prior to
the Effective Time.
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"COMPANY STOCK CERTIFICATE shall have the meaning set forth in Section
2.06.
"COMPANY STOCKHOLDER'S MEETING" shall have the meaning set forth in Sec-
tion 5.23(a).
"COMPANY STOCKHOLDER VOTING AGREEMENT" shall have the meaning set forth in
the second WHEREAS clause to this Merger Agreement.
"COMPANY TRIGGERING EVENT" shall be deemed to have occurred if: (i) the
Board of Directors of the Company shall have failed to recommend that the
Company's stockholders vote to adopt this Merger Agreement, or shall have
withdrawn or modified in a manner adverse to Veeco the Company Board
Recommendation; (ii) the Company shall have failed to include in the Joint Proxy
Statement, the Company Board Recommendation or a statement to the effect that
the Board of Directors of the Company has determined and believes that the
Merger is in the best interests of the Company's stockholders; (iii) the Board
of Directors of the Company shall have approved, endorsed or recommended any
Company Acquisition Proposal; (iv) the Company shall have entered into any
letter of intent or similar document or any Contract relating to any Company
Acquisition Proposal; (v) the Company shall have failed to hold the Company
Stockholders' Meeting as promptly as practicable and in any event within 45 days
after the Form S-4 Registration Statement is declared effective under the
Securities Act, unless a stop order shall have been issued by the SEC with
respect to the S-4 Registration Statement or an injunction shall have been
issued by a court of competent jurisdiction or other appropriate Governmental
Authority to restrain or prohibit the consummation of the Merger; or (vi) any of
the Acquired Corporations or any Representative of any of the Acquired
Corporations shall have violated in a material manner any of the restrictions
set forth in Section 5.16.
"CONFIDENTIAL COMPANY IP INFORMATION" shall have the meaning set forth in
Section 3.13(k).
"CONSENT" shall mean any approval, consent, ratification, permission,
waiver or authorization (including any License or governmental authorization).
"CONSTITUENT CORPORATIONS" shall have the meaning set forth in Section
2.01.
"CONTINUING EMPLOYEES" shall have the meaning set forth in Section 5.06.
"CONTRACT" shall mean any agreement, arrangement, commitment, indemnity,
indenture, instrument or lease, including any and all amendments, supplements,
and modifications (whether oral or written) thereto, whether or not in writing.
"DGCL" shall have the meaning set forth in the first WHEREAS clause to this
Merger Agreement.
"EFFECTIVE TIME" shall have the meaning set forth in Section 2.02.
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"ENVIRONMENT" shall mean the soil, land surface or subsurface strata,
surface waters (including navigable waters, ocean waters, streams, ponds,
drainage basins and wetlands), groundwaters, drinking water supply, stream
sediments; ambient air (including indoor air), plant and animal life, and any
other environmental medium or natural resource.
"ENVIRONMENTAL LAWS" shall mean any state, federal or local laws,
ordinances, codes, regulations, statutes, orders, judgments, decrees, permits or
licenses relating to pollution, natural resources, protection of the Environment
or public health and safety, including, without limitation, laws and regulations
relating to the use, treatment, storage, release, disposal or transportation of
Hazardous Substances or the handling and disposal of medical and biological
waste.
"EQUITY SECURITIES" shall mean any (i) capital stock or any securities
representing any other equity interest or (ii) any securities convertible into
or exchangeable for capital stock or any other equity interest, or any other
rights, warrants or options to acquire any of the foregoing securities.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended.
"ERISA AFFILIATE" shall mean, with respect to any Person, (i) any
corporation which is a member of a controlled group of corporations, within the
meaning of Section 414(b) of the Code, of which that Person is a member, (ii)
any trade or business (whether or not incorporated) which is a member of a group
of trades or businesses under common control, within the meaning of Section
414(c) of the Code, of which that Person is a member and (iii) any member of an
affiliated service group, within the meaning of Section 414(m) and (o) of the
Code, of which that Person or any Person described in clause (i) or (ii) is a
member.
"EXCHANGE ACT" shall mean the Securities Exchange Act of 1934, as amended.
"EXCHANGE AGENT" shall have the meaning set forth in Section 2.07(a).
"EXCHANGE FUND" shall have the meaning set forth in Section 2.07(a).
"EXCHANGE RATIO" shall have the meaning set forth in Section 2.05(a).
"EXISTING POLICY" shall have the meaning set forth in Section 5.07(b).
"FORM S-4 REGISTRATION STATEMENT" shall mean the registration statement on
Form S-4 to be filed with the SEC by Veeco in connection with issuance of Veeco
Shares in the Merger, as said registration statement may be amended prior to the
time it is declared effective by the SEC.
"GAAP" shall mean United States generally accepted accounting principles.
5
"GOVERNMENTAL AUTHORITY" shall mean any government or any agency, bureau,
board, commission, court, department, official, political subdivision, tribunal
or other instrumentality of any government, whether federal, state or local,
domestic or foreign.
"HAZARDOUS SUBSTANCES" shall mean (i) any hazardous or toxic waste,
substance or material defined as such in (or for the purposes of) any
Environmental Law, (ii) asbestos-containing material, (iii) medical and
biological waste, (iv) polychlorinated biphenyls, (v) petroleum products,
including gasoline, fuel oil, crude oil and other various constituents of such
products and (vi) any other chemicals, materials or substances, exposure of any
living organism to which is prohibited, limited, or regulated by any
Environmental Laws.
"HIPAA" shall have the meaning set forth in Section 3.12(g).
"HSR ACT" shall mean the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements Act of
1976, as amended.
"INCURABLE MATERIAL ADVERSE EFFECT" shall have the meaning set forth in the
paragraph following Section 9.01(k).
"INDEMNIFIED PERSONS" shall have the meaning set forth in Section 5.07(a).
"INFORMATION TECHNOLOGY" shall mean computer software, computer firmware,
computer hardware (whether general or specific purpose) and other similar or
related items of automated, computerized and/or software systems developed by or
for any Acquired Corporation.
"IRS" shall mean the Internal Revenue Service of the United States or any
successor agency, and, to the extent relevant, the United States Department of
the Treasury.
"JOINT PROXY STATEMENT" shall mean the joint proxy statement/prospectus to
be sent to the Company's stockholders in connection with the Company
Stockholders' Meeting and to Veeco's stockholders in connection with the Veeco
Stockholders' Meeting.
"KNOWLEDGE" shall mean, (i) with respect to an individual, the actual
knowledge of such individual and (ii) with respect to any Person other than an
individual, the actual knowledge of the officers and directors of a corporate
entity or other Persons performing similar functions for any other type of
non-individual Person.
"LAW" shall mean any constitutional provision or any statute or other law,
rule or regulation of any Governmental Authority and any decree, injunction,
judgment, order, ruling, assessment or writ.
"LEGAL PROCEEDING" shall mean any action, suit, litigation, arbitration,
proceeding (including any civil, criminal, administrative, investigative or
appellate proceeding), hearing, inquiry, audit, examination or investigation
commenced, brought, conducted or heard by or before,
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or otherwise involving, any court or other Governmental Authority or any
arbitrator or arbitration panel.
"LICENSED-IN AGREEMENTS" shall have the meaning set forth in Section
3.13(f)(i).
"LICENSES" shall have the meaning set forth in Section 3.06(b).
"LIEN" shall mean any lien, pledge, mortgage, deed of trust, security
interest, claim, lease, charge, option, right of first refusal, easement,
servitude, encroachment or other survey defect, transfer restriction or other
encumbrance of any nature whatsoever, except for liens for Taxes not yet due or
delinquent.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to the Company or Veeco
(as applicable), a material adverse effect in the business, financial condition
or results of operations of the Company or Veeco (as applicable) and their
respective Subsidiaries, taken as a whole, PROVIDED, that a Material Adverse
Effect shall not be deemed to have occurred primarily as a result of
fluctuations in (i) Veeco's or the Company's (as applicable) order rate,
revenues or net income for any fiscal period prior to the consummation of the
Merger or (ii) the number of full-time employees of Veeco or the Company (as
applicable).
"MATERIAL CONTRACT" shall mean any Contract required to be listed on
SCHEDULE 3.08(A) of the Company Disclosure Schedule.
"MERGER" shall have the meaning set forth in the first WHEREAS clause to
this Merger Agreement.
"MERGER AGREEMENT" shall mean this Agreement and Plan of Merger, as
amended, supplemented or otherwise modified from time to time.
"MERGER CONSIDERATION" shall have the meaning set forth in Section 2.05(a).
"MULTIEMPLOYER PLAN" shall have the meaning set forth in Section 3.12(a).
"NASDAQ" shall mean The NASDAQ Stock Market, Inc.
"PBGC" shall mean the Pension Benefit Guaranty Corporation, or any
successor thereto.
"PERSON" shall mean any individual, corporation, limited liability company,
partnership, firm, joint venture, association, joint-stock company, trust,
unincorporated organization, or other entity or organization, whether or not a
legal entity, and including, without limitation, any Governmental Authority.
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"REGISTRATION RIGHTS AGREEMENT" shall mean that certain Amended and
Restated Registration Rights Agreement, dated as of May 10, 1999, among the
Company and certain holders of its capital stock.
"RELEASE" shall mean any spilling, leaking, emitting, discharging,
depositing, escaping, leaching, dumping, or other releasing, whether intentional
or unintentional.
"REPRESENTATIVES" shall mean officers, directors, employees, agents,
attorneys, accountants, advisors and other representatives.
"REQUIRED COMPANY STOCKHOLDER VOTE" shall mean the affirmative vote of the
holders of a majority of the shares of Company Common Stock outstanding on the
record date for the Company Stockholders Meeting.
"REQUIRED VEECO STOCKHOLDER VOTE" shall mean the affirmative vote of the
holders of more than a majority of the Veeco Shares present and voting at the
Veeco Stockholders Meeting.
"SEC" shall mean the United States Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SUBSIDIARY" A Person shall be deemed to be a "Subsidiary" of another
Person if such Person directly or indirectly owns, beneficially or of record,
(a) an amount of voting securities or other interests in such Person that is
sufficient to enable such Person to elect at least a majority of the members of
such Person's Board of Directors or other governing body, or (b) at least 50% of
the outstanding entity or financial interests of such Person.
"SUPERIOR COMPANY PROPOSAL" shall mean an unsolicited, BONA FIDE written
offer made by a third party to purchase all outstanding Company Common Stock on
terms that the Board of Directors of the Company determines to be more favorable
to the Company's stockholders than the terms of the Merger, in its reasonable
judgment, after having taken into account, among other relevant considerations,
a written opinion of an independent financial advisor of nationally recognized
reputation; PROVIDED, HOWEVER, that any such offer shall not be deemed to be a
"Superior Proposal" if any financing required to consummate the transaction
contemplated by such offer is not committed and is not reasonably capable of
being obtained by such third party.
"SUPERIOR VEECO PROPOSAL" shall mean an unsolicited, BONA FIDE, written
offer made by a third party to purchase all outstanding Veeco Shares on terms
that the Board of Directors of Veeco determines make it more favorable to the
stockholders of Veeco for Veeco to consummate such Veeco Acquisition
Transaction, than for Veeco to consummate the Merger, in its reasonable
judgement, after having taken into account, among other relevant considerations,
a written opinion of an independent financial advisor of nationally recognized
reputation.
"SURVIVING CORPORATION" shall have the meaning set forth in Section 2.01.
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"TAX" or "TAXES" shall mean any and all taxes (whether Federal, state,
local or municipal, and whether domestic or foreign), including, without
limitation, income, profits, franchise, gross receipts, payroll, sales,
employment, use, property, withholding, excise, occupation, value added, ad
valorem, transfer and other taxes, duties or assessments of any nature
whatsoever, together with any interest, penalties or additions to tax imposed
with respect thereto.
"TAX RETURNS" shall mean any returns (including any information returns),
reports and forms required to be filed with any Governmental Authority in
connection with the determination, assessment, collection or payment of any
Taxes or in connection with the administration, implementation or enforcement of
or compliance with any Law relating to any Tax.
"THREATENED" A claim, proceeding, dispute, action or other matter will be
deemed to have been "Threatened" if any demand or statement has been made
(orally or in writing) or any notice has been given (orally or in writing) that
would lead a prudent Person to conclude that such a claim, proceeding dispute,
action or other matter is likely to be asserted, commenced, taken or otherwise
pursued in the future.
"VEECO" shall have the meaning set forth in the introductory paragraph of
this Merger Agreement.
"VEECO AFFILIATE" has the meaning set forth in Section 5.21(b).
"VEECO AFFILIATE AGREEMENT" has the meaning set forth in Section 5.21(b).
"VEECO ACQUISITION PROPOSAL" shall mean any offer, proposal, inquiry or
indication of interest contemplating or otherwise relating to any Veeco
Acquisition Transaction.
"VEECO ACQUISITION TRANSACTION" shall mean any transaction or series of
transactions involving:
(a) any merger, consolidation, share exchange, business combination,
issuance of securities, acquisition of securities, tender offer, exchange offer
or other similar transaction (i) in which Veeco is a constituent corporation,
(ii) in which a Person or "group" (as defined in the Exchange Act and the rules
promulgated thereunder) of Persons directly or indirectly acquires beneficial or
record ownership of securities representing more than 20% of the outstanding
securities of any class of voting securities of Veeco or a Subsidiary thereof,
or (iii) in which Veeco issues securities representing more than 20% of the
outstanding securities of any class of voting securities of Veeco or a
Subsidiary thereof;
(b) any sale, lease, exchange, transfer, license, acquisition or
disposition of any business or businesses or assets that constitute or account
for 20% or more of the consolidated net revenues, net income or assets of Veeco;
or
(c) any liquidation or dissolution of Veeco.
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"VEECO AUTHORIZATIONS" shall have the meaning set forth in Section 4.09.
"VEECO BALANCE SHEET" shall have the meaning set forth in Section 4.06.
"VEECO BALANCE SHEET DATE" shall have the meaning set forth in Section
4.06.
"VEECO BOARD RECOMMENDATION" shall have the meaning set forth in Sec-
tion 5.24(b).
"VEECO CONFIDENTIAL IP INFORMATION" shall have the meaning set forth in
Section 4.18(g).
"VEECO DISCLOSURE SCHEDULE" shall mean the disclosure schedule that has
been prepared by Veeco in accordance with the requirements of Section 9.07
hereof and that has been delivered by Veeco to the Company on the date of this
Merger Agreement and signed by the President of Veeco.
"VEECO FINANCIAL STATEMENTS" shall have the meaning set forth in Section
4.04.
"VEECO INTELLECTUAL PROPERTY" shall have the meaning set forth in Section
4.18(a).
"VEECO OPTIONS" shall have the meaning set forth in Section 4.02(b).
"VEECO-OWNED IP" shall have the meaning set forth in Section 4.18(e).
"VEECO-OWNED IP REGISTRATIONS" shall have the meaning set forth in
Section 4.18(c).
"VEECO SEC DOCUMENTS" shall mean each statement, report, registration
statement (including the related prospectus in the form filed pursuant to Rule
424(b) of the Securities Act) and definitive proxy statement, and other filings
filed with the SEC by Veeco since January 1, 1996 and prior to the Effective
Time.
"VEECO SHARES" shall mean the common stock, $.01 par value per share, of
Veeco.
"VEECO STOCKHOLDERS' MEETING" shall have the meaning set forth in Section
5.24(a).
"VEECO STOCKHOLDER VOTING AGREEMENT" shall have the meaning set forth in
the third WHEREAS clause to this Merger Agreement.
"VEECO TRIGGERING EVENT" shall be deemed to have occurred if: (i) the Board
of Directors of Veeco shall have failed to recommend that Veeco's stockholders
vote to adopt this Merger Agreement, or shall have withdrawn or modified in a
manner adverse to the Company the Veeco Board Recommendation; (ii) Veeco shall
have failed to include in the Joint Proxy Statement
10
the Veeco Board Recommendation or a statement to the effect that the Board of
Directors of Veeco has determined and believes that the Merger is in the best
interests of Veeco's stockholders; (iii) the Board of Directors of Veeco shall
have approved, endorsed or recommended any Veeco Acquisition Proposal; (iv)
Veeco shall have entered into any letter of intent or similar document or any
Contract relating to a Veeco Acquisition Proposal; (v) Veeco shall have failed
to hold the Veeco Stockholders Meeting on the date of the Company Stockholders
Meeting or as promptly as practicable thereafter and, in any event, within five
days after the date of the Company Stockholders Meeting; or (vi) Veeco or any
Representative of Veeco shall have violated in a material manner any of the
restrictions set forth in Section 5.17.
"VEECO'S BROKER" shall have the meaning set forth in Section 4.12.
"XXXXXXX EMPLOYMENT AGREEMENT" shall have the meaning set forth in Sec-
tion 5.13.
1.02 The words "hereof," "herein," "hereby" and "hereunder," and words of
like import, refer to this Merger Agreement as a whole and not to any particular
Section hereof. References herein to any Section, Schedule or Exhibit refer to
such Section of, or such Schedule or Exhibit to, this Merger Agreement, unless
the context otherwise requires. All pronouns and any variations thereof refer to
the masculine, feminine or neuter gender, singular or plural, as the context may
require. The word "including," when used herein, means "including, without
limitation."
II. THE MERGER.
2.01 THE MERGER. At the Effective Time of the Merger, Acquisition shall be
merged with and into the Company. The separate existence of Acquisition shall
thereupon cease and the Company shall continue its corporate existence as the
surviving corporation (the "SURVIVING CORPORATION") under the DGCL Laws of the
State of Delaware under its present name. The Company and Acquisition are
sometimes referred to collectively herein as the "CONSTITUENT CORPORATIONS."
2.02 EFFECTIVE TIME OF THE MERGER. At the Closing, the parties hereto shall
cause a certificate of merger substantially in the form of EXHIBIT C annexed
hereto (the "CERTIFICATE OF MERGER") to be executed and filed with the Secretary
of State of the State of Delaware, as provided in Section 252 of the DGCL, and
shall take all such other and further actions as may be required by Law to make
the Merger effective. The Merger shall become effective as of the date and time
of the filing of the Certificate of Merger. The date and time of such
effectiveness are referred to herein as the "EFFECTIVE TIME."
2.03 CLOSING OF THE MERGER. (a) Unless this Merger Agreement shall
theretofore have been terminated pursuant to the provisions of Section 9.01
hereof, the closing of the Merger (the "CLOSING") shall take place as promptly
as practicable, but no later than the second business day, following the day on
which the last of the conditions (other than conditions which, by their nature,
are to be satisfied at Closing, but subject to those conditions) set forth in
Articles VI, VII and
11
VIII hereof are fulfilled or waived (by the relevant party or parties), subject
to applicable Laws (the "CLOSING DATE"), at the offices of Xxxx, Scholer,
Fierman, Xxxx & Handler, LLP, 000 Xxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000, unless
another time, date or place is agreed to in writing by the parties hereto.
(b) Subject to the provisions of this Merger Agreement, Veeco,
Acquisition and the Company shall cause to be executed and filed at the
Closing the Certificate of Merger, and shall cause the Certificate of
Merger to be recorded in accordance with the provisions of the DGCL and
shall take any and all other lawful actions and do any and all other lawful
things to cause the Merger to become effective.
2.04 EFFECTS OF THE MERGER. At the Effective Time of the Merger:
(a) the separate existence of Acquisition shall cease and Acquisition
shall be merged with and into the Company, which shall be the Surviving
Corporation;
(b) the Certificate of Incorporation and By-Laws of the Company as in
effect immediately prior to the Effective Time shall be the Certificate of
Incorporation and By-Laws of the Surviving Corporation, until each shall
thereafter be amended in accordance with each of their terms and as
provided by Law;
(c) the directors and officers of the Surviving Corporation
immediately after the Effective Time shall be the respective individuals
who are directors and officers of Acquisition immediately prior to the
Effective Time;
(d) the Surviving Corporation shall possess all the rights,
privileges, immunities and franchises, of a public as well as of a private
nature, of each of the Constituent Corporations, and all property, real,
personal, and mixed, and all debts due on whatever account, and all other
choses in action, and all and every other interest of or belonging to or
due to each of the Constituent Corporations shall be taken and deemed to be
transferred to and vested in the Surviving Corporation without further act
or deed; and
(e) the Surviving Corporation shall thenceforth be responsible and
liable for all liabilities and obligations of each of the Constituent
Corporations, and any claim existing or action or proceeding pending by or
against either of the Constituent Corporations may be prosecuted as if the
Merger had not taken place or the Surviving Corporation may be substituted
in its place. Neither the rights of creditors nor Liens upon the property
of either of the Constituent Corporations shall be impaired by the Merger.
2.05 CONVERSION OF SHARES. As of the Effective Time, by virtue of the
Merger and without any further action on the part of Veeco, Acquisition, the
Company or any holder of any Equity Securities of the Constituent Corporations:
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(a) Each share of Company Common Stock issued and outstanding
immediately prior to the Effective Time shall be converted into the right
to receive 0.43 Veeco Shares (the "MERGER CONSIDERATION"). Accordingly,
0.43 is hereinafter referred to as the "EXCHANGE RATIO."
(b) Each share of common stock, par value $0.01 per share, of
Acquisition issued and outstanding immediately prior to the Effective Time
shall be converted into and exchanged for one validly issued, fully paid
and nonassessable share of common stock, par value $0.01 per share, of the
Surviving Corporation.
(c) The Merger Consideration shall be adjusted to reflect fully the
effect of any stock split, reverse split, stock dividend (including any
dividend or distribution of securities convertible into Veeco Shares or
Company Common Stock), reorganization, recapitalization or other like
change with respect to Veeco Shares or Company Common Stock occurring after
the date of this Merger Agreement and prior to the Effective Time or after
the Effective Time if the record date with respect thereto is set after the
date of this Merger Agreement and prior to the Effective Time.
(d) No fraction of a Veeco Share will be issued in exchange for
surrendered shares of Company Common Stock, but in lieu thereof each holder
of shares of Company Common Stock who would otherwise be entitled to a
fraction of a Veeco Share (after aggregating all fractional shares of Veeco
Shares to be received by such holder) shall receive from Veeco an amount of
cash (rounded to the nearest whole cent) equal to the product of (i) such
fraction, multiplied by (ii) the Closing Price Per Share.
(e) All Company Common Stock, by virtue of the Merger and without any
action on the part of the holders thereof, shall no longer be outstanding
and shall be canceled and retired and shall cease to exist, and each holder
of a Company Stock Certificate shall thereafter cease to have any rights
with respect to the shares of Company Common Stock represented thereby,
except the right to receive the Merger Consideration for such Company
Common Stock upon the surrender of such Company Stock Certificate in
accordance with this Section and Section 2.07 hereof.
(f) If any shares of Company Common Stock outstanding immediately
prior to the Effective Time are unvested or are subject to a repurchase
option, risk of forfeiture or other condition under any applicable
restricted stock purchase agreement or other agreement with the Company or
any other Acquired Corporation or under which the Company or any other
Acquired Corporation has any rights, then the Veeco Shares issued in
exchange for such shares of Company Common Stock will also be unvested and
subject to the same repurchase option, risk of forfeiture or other
condition, and the certificates representing such Veeco Shares may
accordingly be marked with appropriate legends. The Company shall take all
action that may be necessary to ensure that, from and after the Effective
Time, Veeco is entitled to exercise any such repurchase option or other
right set forth in any such restricted stock purchase agreement or other
agreement.
2.06 CLOSING OF THE COMPANY'S TRANSFER BOOKS. At the Effective Time, the
stock transfer books of the Company shall be closed with respect to all shares
of Company Common Stock
13
outstanding immediately prior to the Effective Time. No further transfer of any
such shares of Company Common Stock shall be made on such stock transfer books
after the Effective Time. If, after the Effective Time, a valid certificate
previously representing any shares of Company Common Stock (a "COMPANY STOCK
CERTIFICATE") is presented to the Exchange Agent or to the Surviving Corporation
or Veeco, such Company Stock Certificate shall be canceled, and shall be
exchanged as provided in Section 2.07 hereof.
2.07 EXCHANGE OF CERTIFICATES.
(a) On or prior to the Closing Date, Veeco shall select a reputable
bank or trust company to act as exchange agent in the Merger (the "EXCHANGE
AGENT"). Promptly after the Effective Time, Veeco shall deposit with the
Exchange Agent (i) certificates representing the Veeco Shares issuable
pursuant to this Article II and (ii) cash sufficient to make payments in
lieu of fractional shares in accordance with Section 2.05(d) hereof. The
Veeco Shares and cash amounts so deposited with the Exchange Agent,
together with any dividends or distributions received by the Exchange Agent
with respect to such shares, are referred to herein collectively as the
"EXCHANGE FUND."
(b) As soon as reasonably practicable after the Effective Time, the
Exchange Agent will mail to the record holders of Company Stock Certificates:
(i) a letter of transmittal in customary form and containing such provisions as
Veeco may reasonably specify (including a provision confirming that delivery of
Company Stock Certificates shall be effected, and risk of loss and title to
Company Stock Certificates shall pass, only upon delivery of such Company Stock
Certificates to the Exchange Agent), and (ii) instructions for use in effecting
the surrender of Company Stock Certificates in exchange for certificates
representing Veeco Shares as contemplated by this Article II. Upon surrender of
a Company Stock Certificate to the Exchange Agent for exchange, together with a
duly executed letter of transmittal and such other documents as may be
reasonably required by the Exchange Agent or Veeco, (1) the holder of such
Company Stock Certificate shall be entitled to receive in exchange therefor a
certificate representing the number of whole Veeco Shares that such holder has
the right to receive pursuant to the provisions of Section 2.05 hereof (and an
appropriate amount of cash in lieu of any fractional Veeco Share otherwise
issuable), and (2) the Company Stock Certificate so surrendered shall be
canceled. Until surrendered as contemplated by this Section 2.07, each Company
Stock Certificate shall be deemed, from and after the Effective Time, to
represent only the right to receive Veeco Shares (and an appropriate amount of
cash in lieu of any fractional Veeco Share otherwise issuable) as contemplated
by this Article II. If any Company Stock Certificate shall have been lost,
stolen or destroyed, Veeco may, in its discretion and as a condition precedent
to the issuance of any certificate representing Veeco Shares hereunder, require
the owner of such lost, stolen or destroyed Company Stock Certificate to provide
an appropriate affidavit and to deliver a bond (in such sum as Veeco may
reasonably direct) as indemnity against any claim that may be made against the
Exchange Agent, Veeco or the Surviving Corporation with respect to such Company
Stock Certificate.
(c) No certificates representing Veeco Shares shall be issued in
exchange for any Company Stock Certificate to any Person who may be a
Company Affiliate until such Person
14
shall have delivered to Veeco and the Company a duly executed Company Affiliate
Agreement or Veeco Affiliate Agreement (as applicable), as contemplated by
Section 5.21 hereof.
(d) No dividends or other distributions declared or made with respect
to Veeco Shares with a record date after the Effective Time shall be paid
to the holder of any unsurrendered Company Stock Certificate with respect
to the Veeco Shares that such holder has the right to receive in the Merger
until such holder surrenders such Company Stock Certificate in accordance
with this Section 2.07 (at which time such holder shall be entitled,
subject to the effect of applicable escheat or similar Laws, to receive all
such dividends and distributions, without interest).
(e) Any portion of the Exchange Fund that remains undistributed to
holders of Company Stock Certificates as of the date that is 180 days after the
Effective Time shall be delivered to Veeco upon demand, and any holders of
Company Stock Certificates who have not theretofore surrendered their Company
Stock Certificates in accordance with this Section 2.07 shall thereafter look
only to Veeco for satisfaction of their claims for Veeco Shares, cash in lieu of
fractional Veeco Shares and any dividends or distributions with respect to Veeco
Shares Common Stock.
(f) Each of the Exchange Agent, Veeco and the Surviving Corporation
shall be entitled to deduct and withhold from any consideration payable or
otherwise deliverable pursuant to this Merger Agreement to any holder or former
holder of Company Common Stock such amounts as may be required to be deducted or
withheld therefrom under the Code or any provision of state, local or foreign
Tax Law or under any other applicable Law. To the extent such amounts are so
deducted or withheld, such amounts shall be treated for all purposes under this
Merger Agreement as having been paid to the Person to whom such amounts would
otherwise have been paid.
(g) Neither Veeco nor the Surviving Corporation shall be liable to any
holder or former holder of Company Common Stock or to any other Person with
respect to any Veeco Shares (or dividends or distributions with respect
thereto), or for any cash amounts, delivered to any public official pursuant to
any applicable abandoned property Law, escheat Law or similar Law.
2.08 TAX CONSEQUENCES . For federal income tax purposes, the Merger is
intended to constitute a reorganization within the meaning of Section 368 of the
Code with respect to which no gain or loss will be recognized by a stockholder
of the Company upon the conversion of Company Common Stock into Veeco Shares
pursuant to the Merger (except with respect to any cash received in lieu of a
fractional share). The parties to this Merger Agreement hereby adopt this Merger
Agreement as a "plan of reorganization" as described in Sections 1.368-2(g) and
1.368-3(a) of the United States Treasury Regulations.
2.09 ACCOUNTING CONSEQUENCES . For financial reporting purposes, the Merger
is intended to be accounted for as a "pooling of interests."
15
2.10 FURTHER ACTION . If, at any time after the Effective Time, any further
action is determined by Veeco to be necessary or desirable to carry out the
purposes of this Merger Agreement or to vest the Surviving Corporation with full
right, title and possession of and to all rights and property of Acquisition and
the Company, the officers and directors of the Surviving Corporation and Veeco
shall be fully authorized (in the name and on behalf of Acquisition, in the name
and on behalf of the Company or otherwise) to take such action.
2.11 SUBSEQUENT ACTION. If, at any time after the Effective Time, the
Surviving Corporation shall consider or be advised that any deeds, bills of
sale, assignments, assurances and any other actions or things are necessary,
desirable or proper to vest, perfect or confirm, of record or otherwise, in the
Surviving Corporation its right, title or interest in, to or under any of the
rights, properties or assets of the Constituent Corporations as a result of, or
in connection with, the Merger, the officers and directors of the Surviving
Corporation shall be authorized to execute and deliver, in the name and on
behalf of the Constituent Corporations or otherwise, all such deeds, bills of
sale, assignments and assurances and to take and do, in the name and on behalf
of the Constituent Corporations or otherwise, all such other actions and things
as may be necessary or desirable to vest, perfect or confirm any and all right,
title and interest in, to and under such rights, properties or assets in the
Surviving Corporation or otherwise to carry out this Merger Agreement.
III. REPRESENTATIONS AND WARRANTIES OF THE COMPANY.
The Company hereby represents and warrants to Veeco and Acquisition that,
except as set forth in the Company SEC Documents, or in a specific subsection of
the Company Disclosure Schedule:
3.01 DUE ORGANIZATION; SUBSIDIARIES; ETC. (a) The Company has no
Subsidiaries, except for the corporations identified in SCHEDULE 3.01(A) of the
Company Disclosure Schedule (which together constitute all of the Acquired
Corporations); and neither the Company nor any of the other Acquired
Corporations owns any capital stock or Equity Securities of, or any equity
interest of any nature in, any other Person. None of the Acquired Corporations
has agreed or is obligated to make, or is bound by any Contract under which it
may become obligated to make, any future investment in or capital contribution
to any other Person. Since January 1, 1990, none of the Acquired Corporations
has, at any time, been a general partner of any general partnership, limited
partnership or other Person.
(b) Each of the Acquired Corporations is a corporation duly organized,
validly existing and in good standing (in jurisdictions that recognize such
concept) under the Laws of the jurisdiction of its incorporation and has all
necessary power and authority: (i) to conduct its business in the manner in
which its business is currently being conducted; (ii) to own and use its assets
in the manner in which its assets are currently owned and used; and (iii) to
perform its obligations under all Contracts by which it is bound.
16
(c) Each of the Acquired Corporations is qualified to do business as a
foreign corporation, and is in good standing (in jurisdictions that recognize
such concept), under the laws of all jurisdictions where the nature of its
business requires such qualification, other than such failures to be so
qualified as would not individually or in the aggregate reasonably be expected
to have a Material Adverse Effect on the Company.
3.02 CAPITALIZATION. (a) The authorized capital stock of the Company
consists of 50,000,000 shares of Company Common Stock, of which 11,604,819 were
issued and outstanding as of January 31, 2000. All of the outstanding shares of
Company Common Stock have been duly authorized and validly issued and are fully
paid and nonassessable and were issued in conformity with applicable Laws.
(b) As of January 31, 2000, 2,179,080 shares of Company Common Stock were
issuable upon the exercise of options granted under the stock option plans and
other options set forth on SCHEDULE 3.02(B) to the Company Disclosure Schedule
(collectively, the "COMPANY OPTIONS"). Except for the Company Options, there are
no outstanding Equity Securities, or other obligations to issue or grant any
rights to acquire any Equity Securities, of the Company, or any Contracts to
restructure or recapitalize the Company. There are no outstanding Contracts of
the Company to repurchase, redeem or otherwise acquire any Equity Securities of
the Company. All outstanding Equity Securities of each of the Acquired
Corporations have been duly authorized and validly issued in conformity with
applicable laws. The Company owns all issued and outstanding Equity Securities
of each other Acquired Corporation.
3.03 AUTHORIZATION. The Company has full corporate power and authority to
execute, deliver and perform this Merger Agreement and the Certificate of
Merger, and to consummate the transactions contemplated hereby. The execution,
delivery and performance of this Merger Agreement, the Certificate of Merger and
all other documents and agreements to be delivered pursuant hereto and the
consummation of the transactions contemplated hereby have been duly and validly
authorized by the Board of Directors of the Company, and no other corporate
proceedings on the part of the Company (other than the Required Company
Stockholder Vote and the filing of the Certificate of Merger) are necessary to
authorize this Merger Agreement, the Certificate of Merger and any such related
documents or agreements or to consummate the transactions contemplated hereby.
This Merger Agreement has been duly and validly executed and delivered by the
Company and the Certificate of Merger, when executed at the Closing, will be
duly and validly executed and delivered by the Company. This Merger Agreement,
assuming the due authorization, execution and delivery by each of the other
parties hereto, constitutes a legal, valid and binding agreement of the Company,
enforceable in accordance with its terms, and the Certificate of Merger, when
executed by the Company at the Closing, assuming the due authorization,
execution and delivery by each of the other parties hereto, will be legal, valid
and binding agreements of the Company, enforceable in accordance with their
respective terms except as such enforceability may be limited by applicable
bankruptcy, moratorium, insolvency, reorganization, fraudulent conveyance or
other Laws affecting the enforcement of creditors' rights generally or by
general equitable principles.
17
3.04 REPORTS. All documents required to be filed as exhibits to the Company
SEC Documents have been so filed. All Company SEC Documents were filed as and
when required by the Exchange Act or the Securities Act, as applicable. The
Company SEC Documents include all statements, reports and documents required to
be filed by the Company pursuant to the Exchange Act and the Securities Act. As
of their respective filing dates, the Company SEC Documents complied in all
material respects with the requirements of the Exchange Act and the Securities
Act, as applicable, and none of the Company SEC Documents, as of their
respective filing dates, contained any untrue statement of a material fact or
omitted to state a material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances in which they
were made, not misleading, except to the extent corrected by a subsequently
filed Company SEC Document. The financial statements of the Company and its
Subsidiaries, including the notes thereto, included in the Company SEC Documents
(the "COMPANY FINANCIAL STATEMENTS"), complied in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto as of their respective dates (except as may be
indicated in the notes thereto or, in the case of unaudited statements included
in Quarterly Reports on Form 10-Q, as permitted by Form 10-Q of the SEC). The
Company Financial Statements fairly present the consolidated financial
condition, operating results and cash flows of the Company and its Subsidiaries
at the dates and during the periods indicated therein in accordance with GAAP
consistently applied (subject, in the case of unaudited statements, to normal,
recurring year-end adjustments and additional footnote disclosures). There has
been no material change in the Company's accounting policies except as described
in the notes to the Company Financial Statements. At all times since November
12, 1999, the Company has (i) filed as and when due all documents required to be
filed with NASDAQ, and (ii) otherwise timely performed all of the Company's
obligations pursuant to the rules and regulations of NASDAQ.
3.05 NO UNDISCLOSED LIABILITIES. The Acquired Corporations do not have any
obligation or liability of any nature (matured or unmatured, fixed or
contingent) other than those (i) set forth or adequately provided for in the
balance sheet of the Company as at December 31, 1999, (ii) not required to be
set forth on such balance sheet under GAAP, (iii) incurred in the ordinary
course of business since December 31, 1999, and consistent with past practice or
(iv) which, individually or in the aggregate, would not have a Material Adverse
Effect on the Company.
3.06 COMPLIANCE WITH LAW; GOVERNMENTAL AUTHORIZATIONS. (a) Each of the
Acquired Corporations has complied in all material respects with, is not in
violation of, and has not received notices of violation with respect to, any Law
with respect to the conduct of its business, or the ownership or operation of
its business, except for instances of possible noncompliance which, individually
or in the aggregate, would not have a Material Adverse Effect on the Company.
(b) Each of the Acquired Corporations has obtained all licenses,
permits, certificates, consents and approvals from Governmental Authorities
(the "LICENSES") that are necessary for its business and operations except
where the failure to obtain such Licenses would not, individually or in the
aggregate, have a Material Adverse Effect on the Company. All such Licenses
are in full force and effect, and no notice of any material violation has
been received by any Acquired Corporation in respect of any such License.
The consummation of the transactions
18
contemplated hereunder and the operation of the business of the Acquired
Corporations by the Surviving Corporation in the manner in which it is currently
operated will not require the transfer of any such License that may not be
transferred to the Surviving Corporation without the Consent of any Governmental
Authority or other Person.
3.07 NO CONFLICTS. (a) No filing or registration with, or permit,
authorization, Consent or approval of, or notification or disclosure to, any
Governmental Authority is required by the Company in connection with the
execution and delivery of this Merger Agreement or the consummation by the
Company of the Merger and the other transactions contemplated hereby, except (i)
in connection with the applicable requirements of the HSR Act, (ii) in
connection with the provisions of the Securities Act and the rules and
regulations promulgated thereunder, the Exchange Act and the rules and
regulations promulgated thereunder and the rules and regulations of the NASDAQ,
(iii) the filing of appropriate merger documents as required by the DGCL
(including the Certificate of Merger) and (iv) such Consents, approvals, orders,
permits, authorizations, registrations, or declarations and filings as may be
required under the Blue Sky laws of various states.
(b) The execution, delivery and performance by the Company of this
Merger Agreement and the consummation of the Merger and the other
transactions contemplated hereby will not (i) violate any provision of the
Certificate of Incorporation or By-Laws or other organizational documents
of the Company, (ii) violate, or be in conflict with, or constitute a
default (or an event which, with notice or lapse of time or both, would
constitute a default) under, or result in, or provide the basis for, the
termination of, or accelerate the performance required by, or excuse
performance by any Person of any of its obligations under, or cause the
acceleration of the maturity of any debt or obligation pursuant to, or
result in the creation or imposition of any Lien upon any property or
assets of any Acquired Corporation under, any Material Contract to which
any Acquired Corporation is a party or by which any of its property or
assets is bound, or to which any of the property or assets of any Acquired
Corporation is subject, except for Contracts, the other party to which has
consented to the execution and delivery of this Merger Agreement or the
consummation of the Merger (as appropriate under the terms of such
Contract), (iii) violate any Law applicable to any Acquired Corporation or
(iv) violate or result in the revocation or suspension of any License.
3.08 CONTRACTS. (a) SCHEDULE 3.08(A) to the Company Disclosure
Schedule and the Company SEC Documents contain a complete and accurate
list, and the Company has delivered or made available to Veeco true and
complete copies (or, in the case of oral Contracts, summaries), of:
(i) each Contract that is executory in whole or in part and involves
performance of services or delivery of goods or materials by the Company or any
other Acquired Corporation of an amount or value in excess of $250,000;
(ii) each Contract that is executory in whole or in part and was not
entered into in the ordinary course of business and that involves expenditures
or receipts of the Company or any other Acquired Corporation in excess of
$250,000;
19
(iii) each lease, rental or occupancy agreement, license agreement,
installment and conditional sale agreement, and any other Contract affecting the
ownership of, leasing of, title to, use of, or any leasehold or other interest
in, any real or personal property of any Acquired Corporation (except personal
property leases and installment and conditional sales agreements having a value
per item or annual payments of less than $175,000);
(iv) other than licensing agreements entered into in connection with
product sales in the ordinary course of the Company's or the other Acquired
Corporations' business, each material licensing agreement or any other material
Contract with respect to patents, trademarks, copyrights or other Intellectual
Property, including material Contracts with current or former employees,
consultants or contractors regarding the appropriation or the non-disclosure of
any of the Intellectual Property;
(v) each collective bargaining agreement and any other Contract to or with
any labor union or other employee representative of a group of employees of any
Acquired Corporation;
(vi) each joint venture, partnership and any other material Contract
(however named) involving a sharing of profits, losses, costs or liabilities by
an Acquired Corporation with any other Person;
(vii) each Contract containing covenants that in any way purport to
restrict the business activity of an Acquired Corporation or limit the freedom
of an Acquired Corporation to engage in any line of business or to compete with
any Person;
(viii) each Contract providing for material payments to or by any Person
based on sales, purchases or profits, other than direct payments for goods;
(ix) each power of attorney that is currently effective and outstanding
granted by and relating to an Acquired Corporation;
(x) each Contract that contains or provides for an express undertaking by
an Acquired Corporation to be responsible for consequential damages;
(xi) each Contract that is executory in whole or in part and involves
capital expenditures by an Acquired Corporation in excess of $250,000;
(xii) each written warranty, guaranty and/or other similar undertaking with
respect to contractual performance extended by an Acquired Corporation other
than in the ordinary course of business; and
(xiii) each Contract with any employee, director or officer of an Acquired
Corporation.
20
(b) Each Material Contract is in full force and effect and
enforceable in accordance with its terms, except as such enforceability may be
limited by applicable bankruptcy, moratorium, insolvency, reorganization,
fraudulent conveyance and other Laws affecting the enforcement of creditors'
rights generally or by general principles of equity.
(c) Each Acquired Corporation has fulfilled in all material
respects all obligations required pursuant to each Material Contract to have
been performed by it.
(d) No Acquired Corporation has received any written notice of
default under any Material Contract, no default (beyond any applicable grace or
cure period) has occurred under any Material Contract on the part of an Acquired
Corporation or, to the Company's knowledge, on the part of any other party
thereto, nor has any event occurred which with the giving of notice or the lapse
of time, or both, would constitute any default on the part of an Acquired
Corporation under any Material Contract nor, to the Company's knowledge, has any
event occurred which with the giving of notice or lapse of time, or both, would
constitute any default on the part of any other party to any Material Contract.
(e) Except as set forth in SCHEDULE 3.08(E) to the Company
Disclosure Schedule, no Consent or approval of any party to any of the Material
Contracts is required for the execution, delivery or performance of this Merger
Agreement or the consummation of the Merger or the other transactions
contemplated hereby to which the Company is a party, except where the failure to
obtain such Consent or approval would not, individually or in the aggregate,
have a Material Adverse Effect on the Company.
(f) To the knowledge of the Company, no officer, director, agent
or employee of the Company is bound by any Contract that purports to limit the
ability of such officer, director, agent or employee to (i) engage in or
continue any conduct, activity or practice relating to the business of an
Acquired Corporation, or (ii) assign to the Company or an Acquired Corporation
to any other Person any rights to any invention, improvement or discovery.
3.09 LITIGATION. There are no actions, suits or legal,
administrative, arbitration or other Legal Proceedings or governmental
investigations pending or, to the Company's knowledge, Threatened against the
Company or any other Acquired Corporation before or by any Governmental
Authority, except for such as would not individually or in the aggregate either
impair the Company's or any other Acquired Corporation's ability to consummate
the Merger or have or reasonably be expected to have a Material Adverse Effect
on the Company. No Acquired Corporation is a party to or subject to any
judgment, order, writ, injunction, decree or award of any Governmental
Authority, except for those that, individually or in the aggregate, would not
have a Material Adverse Effect on the Company.
3.10 TAXES. Except as set forth in SCHEDULE 3.10 to the Company
Disclosure Schedule:
21
The Company and each of the Acquired Corporations has filed or
caused to be filed on a timely basis all Tax Returns that are or were required
to be filed by the Company and/or any of the other Acquired Corporations, either
separately or as part of an affiliated group of corporations, pursuant to the
Laws of any Governmental Authority with taxing power over any of the Acquired
Corporations or its assets and business. All Tax Returns filed by any of the
Acquired Corporations are true, correct and complete. The Company and each of
the Acquired Corporations has paid all Taxes that have become due by it pursuant
to those Tax Returns, or otherwise, or pursuant to any assessment received by
any of the Acquired Corporations, except such Taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided in
the Company Financial Statements. The Company has delivered to Veeco complete
copies of all Tax Returns that any of the Acquired Corporations has filed for
the past three years. All Taxes that the Company or any of the Acquired
Corporations is, or was, required by Law to withhold and collect have been duly
withheld and collected and, to the extent required, have been paid to the
appropriate Governmental Authority. There is no agreement, plan, arrangement or
other contract covering any employee or independent contractor of the Company or
any of the Acquired Corporations that could give rise to the payment of any
amount that could not be deductible by the Company or any of the Acquired
Corporations or Veeco pursuant to Section 280G or Section 162(m) of the Code.
The Company is not a "United States real property holding corporation," as
defined in Section 897(c)(2) of the Code. The charges, accruals and reserves
with respect to Taxes on the Company Financial Statements with respect to each
of the Acquired Corporations (excluding any provision for deferred income taxes
established to reflect timing differences between book and tax income) for all
tax periods (or portions thereof) ending on or before the Closing Date
(including any period for which no Tax Return has yet been filed) are adequate
for GAAP purposes.
3.11 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the
Company SEC Documents, since September 30, 1999, the Acquired Corporations have
conducted their business in the ordinary course consistent with past practice
and there has not occurred: (i) any change, event or condition (whether or not
covered by insurance) that has resulted in, or might reasonably be expected to
result in, a Material Adverse Effect to the Company; (ii) any acquisition, sale
or transfer of any material asset of the Acquired Corporations other than in the
ordinary course of business and consistent with past practice; (iii) any change
in accounting methods or practices (including any change in depreciation or
amortization policies or rates) by the Company or any revaluation by the Company
of any of its assets; (iv) any declaration, setting aside, or payment of a
dividend or other distribution with respect to the shares of the Company, or any
direct or indirect redemption, purchase or other acquisition by the Company of
any of its shares of capital stock; (v) any material Contract entered into by
any Acquired Corporation, other than in the ordinary course of business, or any
material amendment or termination of, or default under, any material Contract to
which any Acquired Corporation is a party or by which any of them is bound; (vi)
any action or failure to act that could reasonably be expected to cause the
Merger to fail to qualify as a reorganization as described in Section 368(a) of
the Code with respect to which no gain or loss will be recognized by a
stockholder of the Company on the conversion of Company Common Stock into Veeco
Shares pursuant to the Merger (except with respect to any cash received in lieu
of a fractional share); or (vii) any agreement by any Acquired Corporation to do
any of the things described in the preceding
22
clauses (i) through (vi) (other than negotiations with Veeco and its
Representatives regarding the transactions contemplated by this Merger
Agreement).
3.12 EMPLOYEE BENEFIT PLANS. (a) Neither the Company nor any ERISA
Affiliate thereof (i) maintains or contributes to or has any obligation with
respect to, and none of the current or former employees of the Company or any
ERISA Affiliate thereof is covered by, any bonus, deferred compensation,
severance pay, pension, profit-sharing, retirement, insurance, stock purchase,
stock option or other fringe benefit plan, arrangement or practice, written or
otherwise, or any other "employee benefit plan," as defined in Section 3(3) of
ERISA, whether formal or informal (collectively, the "BENEFIT PLANS"). None of
the Benefit Plans is, and the Company (or any of its ERISA Affiliates) has not
during the past five years maintained or had an obligation to contribute to, or
incurred any other obligation with respect to (i) a "multiemployer plan," as
defined in Section 3(37) of ERISA (a "MULTIEMPLOYER PLAN"), (ii) a "multiple
employer plan," as defined in ERISA or the Code or (iii) a funded welfare
benefit plan, as defined in Section 419 of the Code. Neither the Company nor any
ERISA Affiliate thereof has any agreement or commitment to create any additional
Benefit Plan, or to modify or change any existing Benefit Plan.
(b) With respect to each Benefit Plan, the Company has heretofore
delivered or caused to be delivered or made available to Veeco true, correct and
complete copies of (i) all documents which comprise the most current version of
each of such Benefit Plan, including any related trust agreements, insurance
contracts, or other funding or investment agreements and any amendments thereto,
and (ii) with respect to each Benefit Plan that is an "employee benefit plan,"
as defined in Section 3(3) of ERISA (A) the three most recent Annual Reports
(Form 5500 Series) and accompanying schedules for each of the Benefit Plans for
which such a report is required, (B) the most current summary plan description
(and any summary of material modifications), (C) the three most recent certified
financial statements and actuarial valuation for each of the Benefit Plans for
which such a statement or actuarial valuation is required or was prepared, (D)
the Forms PBGC-1 filed in each of the three most recent plan years for each of
the Benefit Plans for which such form was required to be filed, (E) for each
Benefit Plan that provides health or other non-pension benefits to retired or
former employees, shareholders or directors (or their beneficiaries), an
actuarial calculation of the liability of the Company and its Subsidiaries
prepared in accordance with Financial Accounting Standard 106 of the Financial
Accounting Standards Board, and (F) for each Benefit Plan intended to be
"qualified" within the meaning of Section 401(a) of the Code, all IRS
determination letters issued with respect to such Plan. Since the date of the
documents delivered, there has not been any material change in the assets or
liabilities of any of the Benefit Plans (other than any Benefit Plans under
which Company Options are issued) or any change in their terms and operations
which could reasonably be expected to affect or alter the tax status or
materially affect the cost of maintaining such Plan, other than any change that
would not have a Material Adverse Effect on the Company, and none of the Benefit
Plans has been or will be amended prior to the Closing Date, other than as
required by Law, regulation or tax qualification requirement.
(c) The Company or the relevant ERISA Affiliate thereof has
performed and complied in all material respects with all of its obligations
under and with respect to the Benefit Plans and each of the Benefit Plans has,
at all times, in form, operation and administration complied
23
in all material respects with its terms, and, where applicable, the requirements
of the Code, ERISA and all other applicable Laws. Except as set forth on
SCHEDULE 3.12(C) of the Company Disclosure Schedule, each Benefit Plan which is
intended to be "qualified" within the meaning of Section 401(a) of the Code has
been determined by the IRS to be so qualified and, to the knowledge of the
Company, nothing has occurred which could be expected to adversely affect such
qualified status.
(d) There are no material unpaid contributions due prior to the
date hereof with respect to any Benefit Plan that are required to have been made
under its terms and provisions, any related insurance contract or any applicable
Law, and there are no unfunded benefit obligations that have not been accounted
for by reserves, or otherwise property footnoted in the Company Financial
Statements as required in accordance with GAAP. No assets of the Company are
allocated or held in a trust or similar funding vehicle, and there are no
reserve assets, surpluses or prepaid premiums with respect to any Benefit Plan
that is a welfare plan.
(e) With respect to each Benefit Plan that is an "employee pension
benefit plan," as defined in Section 3(2) of ERISA, (i) neither the Company nor
any ERISA Affiliate has withdrawn from such Benefit Plan during a plan year in
which it was a "substantial employer," as defined in Section 4001(a)(2) of
ERISA, where such withdrawal could result in liability of such substantial
employer pursuant to Section 4062(e) or 4063 of ERISA, (ii) neither the Company
nor any ERISA Affiliate has filed a notice of intent to terminate any such
Benefit Plan or adopted any amendment to treat any such Benefit Plan as
terminated, (iii) the PBGC has not instituted proceedings to terminate any such
Benefit Plan, (iv) to the knowledge of the Company, no other event or condition
has occurred which might constitute grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any such Benefit
Plan, (v) all required premium payments to the PBGC have been paid when due,
(vi) no reportable event, as described in Section 4043 of ERISA (whether or not
waived), has occurred, or, to the knowledge of the Company, is reasonably
expected to occur, with respect to any such Benefit Plan, (vii) no material
excise taxes are payable under the Code, (viii) no amendment with respect to
which security is required under Section 307 of ERISA or Section 401(a)(29) of
the Code has been made or is reasonably expected to be made, and (ix) there has
been no event which could subject the Company or any ERISA Affiliate to
liability under Section 4064 or 4069 of ERISA.
(f) With respect to each Benefit Plan that is subject to the
provisions of Section 412 of the Code or Title I, Subtitle B, Part 3 of ERISA,
(i) there has occurred no failure to meet the minimum funding standards of
Section 412 of the Code (whether or not waived in accordance with Section 412(d)
of the Code) or failure to make by its due date a required installment under
Section 412(m) of the Code, (ii) the funding method used in connection with such
Benefit Plan is acceptable under ERISA and the actuarial assumptions used in
connection with funding such Benefit Plan meet the requirements of Section 302
of ERISA, (iii) no accumulated funding deficiency, whether or not waived, exists
with respect to any such Benefit Plan, and no condition has occurred or exists
which by the passage of time would be expected to result in an accumulated
funding deficiency as of the last day of the current plan year of any such
Benefit Plan, and (iv) since the most recent valuation date for each such
Benefit Plan, there has been no amendment or change
24
to such Benefit Plan that would increase the amount of benefit liabilities
thereunder and there has been no event or occurrence that would materially
increase or decrease the value of such assets or liabilities, other than as
would not have a Material Adverse Effect on the Company. Neither the Company nor
any ERISA Affiliate has incurred any liability or taken any action, and the
Company has no knowledge of any action or event, that could cause any one of
them to incur any liability under Section 412 of the Code or Title IV of ERISA
with respect to any "single-employer plan" (as defined in Section 4001(a)(15) of
ERISA) that is not a Benefit Plan.
(g) All group health plans covering employees of the Company have
been operated in material compliance with the continuation coverage requirements
of Section 4980B of the Code (and any predecessor provisions) and Part 6 of
Title I of ERISA ("COBRA"), the provisions of law enacted by the Health
Insurance Portability and Accountability Act of 1996 ("HIPAA") and any similar
state Law.
(h) Neither the Company nor any other "disqualified person" or
"party in interest," as defined in Section 4975 of the Code and Section 3(14) of
ERISA, respectively, has engaged in any "prohibited transaction," as defined in
Section 4975 of the Code or Section 406 of ERISA, with respect to any Benefit
Plan, nor have there been any fiduciary violations under ERISA which could
subject the Company, any ERISA Affiliate thereof (or any officer, director or
employee thereof) to any material penalty or Tax under Section 502(i) of ERISA
or Sections 4971 and 4975 of the Code.
(i) With respect to any Benefit Plan: (i) no filing, application
or other matter is pending with the IRS, the PBGC, the United States Department
of Labor or any other governmental body, (ii) there is no action, suit or claim
pending or, to the Company's knowledge, Threatened, other than routine claims
for benefits and (iii) there are no outstanding material liabilities for Taxes,
penalties or fees.
(j) Neither the Company nor any ERISA Affiliate has taken any
action, and the Company has no knowledge of any action or event, that could
cause any one of them to incur liability on account of a partial or complete
withdrawal, as defined in Sections 4203 and 4205 of ERISA, respectively, from
any Multiemployer Plan, or on account of any unpaid contributions to any
Multiemployer Plan.
(k) Neither the execution and delivery of this Merger Agreement
nor the consummation of any or all of the contemplated transactions will: (i)
entitle any current or former employee of the Company or any ERISA Affiliate
thereof to severance pay, unemployment compensation or any similar payment, (ii)
accelerate the time of payment or vesting or increase the amount of any
compensation due to any such employee or former employee or (iii) directly or
indirectly result in any payment made or to be made to or on behalf of any
person to constitute a "parachute payment" within the meaning of Section 280G of
the Code.
25
3.13 INTELLECTUAL PROPERTY. (a) Except as set forth in SCHEDULE
3.13(A) of the Company Disclosure Schedule: the Acquired Corporations own or
have the right to make, have made, use, sell and license all new and useful
inventions, discoveries and all letters patent (including, but not limited to,
all reissues, extensions, renewals, divisions and continuations thereof and
thereto (including continuations-in-part)) and all applications therefor; Use
(as such term is defined below), sell and license all copyrights, mask works,
trademarks and service marks and all registrations and applications for
registration thereof; Use, sell and license all trade secrets, know-how,
inventory, algorithms, methods, processes, protocols, methodologies, computer
software (including, but not limited to, source code in object code and source
code form), design, functional, technical and other specifications (for computer
software and other properties) and all other tangible and intangible proprietary
materials and information required for the conduct of the business of the
Company ("COMPANY INTELLECTUAL PROPERTY"). For the purposes of this Section 3.13
and of Section 4.18 hereof, "USE" (and, as the context requires, "USED") means
the right to use, execute, distribute, publish, reproduce, perform, display,
transmit, make available, make modifications and prepare derivative works.
(b) With respect to the Intellectual Property which any Acquired
Corporation owns, and to the extent of such Acquired Corporation's rights
therein, after the Merger, the Surviving Corporation shall have the right to (i)
xxx for (and otherwise assert claims for) and shall have no limitation on its
ability to recover damages and obtain any and all other appropriate remedies
available at law or equity for any past, present or future infringement,
misappropriation or other violation thereof (and settle all such suits, actions
and proceedings); (ii) seek appropriate protection therefor (including, where
appropriate, the right to seek copyright, trademark and service xxxx
registrations and letters patent in the United States and all other countries
and governmental divisions); and (iii) claim all rights and priority thereunder,
in each case, to the extent, if any, that such Acquired Corporation is entitled
to do so prior to the Merger notwithstanding any other provisions of this Merger
Agreement.
(c) SCHEDULE 3.13(C) of the Company Disclosure Schedule sets forth
a complete and accurate list (i) in subsection 1, of all letters patent owned by
any Acquired Corporation; (ii) in subsection 2, of all U.S. federal trademark
and service xxxx registrations owned by any Acquired Corporation; (iii) in
subsection 3, of all material U.S. common law trademarks and service marks owned
by any Acquired Corporation; (iv) in subsection 4, of all U.S. letters patent
owned by any Acquired Corporation which are, as of the date hereof, subject to a
reissue proceeding in the U.S. Patent and Trademark Office (the "PTO"); (v) in
subsection 5, of all applications for U.S. letters patent filed by and subject
to ongoing prosecution by any Acquired Corporation; (vi) in subsection 6, of all
applications for letters patent in jurisdictions other than the United States
filed by and subject to ongoing prosecution by any Acquired Corporation; (vii)
in subsection 7, of all applications for U.S. federal trademark or service xxxx
registrations filed by and subject to ongoing prosecution by any Acquired
Corporation; (viii) in subsection 8, of all applications for trademark or
service xxxx registrations in jurisdictions other than the United States filed
by and subject to ongoing prosecution by any Acquired Corporation; and (ix) in
subsection 9, of all patent interference and similar proceedings in which any
Acquired Corporation is involved, including, but not limited
26
to, interferences and the like asserted against any Acquired Corporation and
interferences and the like which any Acquired Corporation has provoked.
(d) Except as set forth in SCHEDULE 3.13(C) of the Company
Disclosure Schedule, to the knowledge of the Company, (i) all authorship in the
computer software, documentation, software design, technical and functional
software specifications created by any Acquired Corporation and Used in products
or services created by any Acquired Corporation is original or has not been
unlawfully copied or misappropriated and (ii) all computer software and related
documentation manuals contained or Used in products of (including documentation
and product and user manuals) or services to customers provided by any Acquired
Corporation are owned by or licensed to such Acquired Company, and such licenses
provide such Acquired Company with the right to sublicense or otherwise
authorize Use of the licensed subject matter to their customers and authorized
third party users.
(e) (i) Except for third parties which have rights pursuant to the
agreements set forth in SCHEDULE 3.13(F) of the Company Disclosure Schedule and
except for rights granted to the customers of any Acquired Corporation, each
Acquired Corporation has the sole and exclusive right to Use, sell and license
each of the copyrights owned by such Acquired Corporation and to make, Use, sell
and license each item of Intellectual Property listed in SCHEDULE 3.13 of the
Company Disclosure Schedule, subsections 1 and 2 hereto (the foregoing
collectively referred to as "COMPANY-OWNED IP REGISTRATIONS") and (ii) except as
set forth in SCHEDULE 3.13(C) of the Company Disclosure Schedule, the Company
has no knowledge that any of the Company-Owned IP Registrations are invalid,
unenforceable or not subsisting. With the exception of copyright rights, and
with the exception of Company-Owned IP Registrations no longer used by the
Company or an Acquired Corporation, all material Company-Owned IP Registrations
have been and currently remain duly registered with or issued by the appropriate
governmental agency of the United States or of foreign countries as indicated in
SCHEDULE 3.13(C) of the Company Disclosure Schedule, subsections 1 and 2 hereto,
and all required maintenance and annuity fees have been paid in full to and all
declarations required pursuant to 15 U.S.C. Sections 1058 and 1065 (and foreign
counterparts to the same) have been accepted by, or timely submitted to, the
proper Governmental Authority.
(f) (i) SCHEDULE 3.13(F) of the Company Disclosure Schedule sets
forth a complete and accurate list of the material agreements, including, but
not limited to, material license agreements, and of all parties thereto under
which any Acquired Corporation obtains or is the beneficiary of any license or
right to use any Intellectual Property right of any third party (singularly or
collectively, a "LICENSED-IN AGREEMENT" or the "LICENSED-IN AGREEMENTS") with
the exception of off-the-shelf software licensed by any Acquired Corporation and
(ii) SCHEDULE 3.13(F) of the Company Disclosure Schedule sets forth a complete
and accurate list of the material agreements, including, but not limited to,
license agreements, to which any Acquired Corporation is a party and pursuant to
which a third party is authorized to Use any of the Intellectual Property rights
of any Acquired Corporation.
(g) Except as set forth in SCHEDULE 3.13(G) to the Company
Disclosure Schedule, each of the copyrights owned by any Acquired Corporation
and each item of Intellectual
27
Property listed in the Schedules to the Company Disclosure Letter delivered
pursuant to Section 3.13(c) hereto (the "COMPANY-OWNED IP") (i) is free and
clear of any attachments, liens, security interests, UCC filings or any other
encumbrances; (ii) is not subject to any outstanding judicial order, decree,
judgment or stipulation or to any agreement restricting the scope of any
Acquired Corporation's Use thereof; and (iii) together with each item of
Intellectual Property which such Acquired Corporation has a right to Use or
practice pursuant to one or more Licensed-In Agreements, is not subject to any
suits, actions, claims or demands of any third party and no action or
proceeding, whether judicial, administrative or otherwise, has been instituted,
is pending or, to the Company's knowledge, Threatened which challenges or
affects the rights of such Acquired Corporation in the same.
(h) Except as set forth on SCHEDULE 3.13(H) of the Company
Disclosure Schedule, (i) no Acquired Corporation has received any claim or any
cease and desist or equivalent letter regarding, or any other notice of any
allegation to the effect that any of their products, software, apparatus,
methods or services which such Acquired Corporation makes, Uses, sells, offers
or provides infringes upon, misappropriates or otherwise violates the
intellectual property of any third party; (ii) the Company has no knowledge of
any unauthorized Use by, unauthorized disclosure to or by or infringement,
misappropriation or other violation of any Company Intellectual Property by any
current or former officer, employee, independent contractor, consultant or any
other agent of any Acquired Corporation (a "COMPANY AGENT" or the "COMPANY
AGENTS") or by any third party, other than, with respect to such third parties,
such disclosures, infringements, misappropriations and violations as would not,
individually or in the aggregate, have a Material Adverse Effect on the Company;
(iii) no Acquired Corporation has entered into any agreement to indemnify any
third party against any claim of infringement, misappropriation or other
violation of Intellectual Property rights other than indemnification provisions
contained in purchase orders, customer agreements, Licensed-In Agreements or
software licenses arising in the ordinary course of business; and (iv) since its
formation, no Acquired Corporation has been charged in any suit, action or
proceeding with, or has charged others with, unfair competition, infringement,
misappropriation, wrongful use of or any other violation or improper or illegal
activity with respect to or affecting Intellectual Property or with claims
contesting the validity, ownership or right to make, Use, sell, license or
dispose of Intellectual Property.
(i) To the knowledge of the Company, (a) all computer software
created by employees of the Acquired Corporations within the scope of their
employment by any such Acquired Corporation and used in the products or services
of any Acquired Corporation and all original copyrightable authorship therein is
owned by an Acquired Corporation; (b) all rights in all inventions and
discoveries made, developed or conceived by Company Agents during the course of
their employment (or other retention) by an Acquired Corporation and material to
the business of an Acquired Corporation or made, written, developed or conceived
with the use or assistance of an Acquired Corporation's facilities or resources
and which are the subject of one or more issued letters patent or applications
for letters patent have been assigned in writing to an Acquired Corporation; (c)
the policy of the Acquired Corporation requires each employee of an Acquired
Corporation to sign documents confirming that he or she assign to an Acquired
Corporation all Intellectual Property rights made, written, developed or
conceived by him or her during the course of his or her
28
employment (or other retention) by an Acquired Corporation and relating to the
business of an Acquired Corporation or made, written, developed or conceived
with the use or assistance of an Acquired Corporation's facilities or resources
to the extent that ownership of any such Intellectual Property rights does not
vest in an Acquired Corporation by operation of law, and to the extent that any
employee of an Acquired Corporation has not executed such documents, the Company
will require such employee to execute such documents at or before the Closing;
and (d) all Intellectual Property rights made, written, developed or conceived
by each Company Agent during the course of his or her retention by an Acquired
Corporation and material to the business of an Acquired Corporation have been
assigned or licensed to an Acquired Corporation.
(j) The Intellectual Property owned by, licensed to or Used by the
Acquired Corporations prior to the execution of this Merger Agreement will
enable the Surviving Corporation subsequent to the Effective Time to fully carry
on all aspects of the business of the Acquired Corporations as and to the extent
such business was carried on by the Acquired Corporations prior to the Merger.
(k) The Company believes that the Acquired Corporations have taken
all reasonable and practicable steps to protect and preserve the confidentiality
of all Intellectual Property (including, without limitation, trade secrets and
source codes, but excluding letters patent, inventory, copyrights, mask works,
trademarks and service marks and registrations and applications for registration
thereof) ("CONFIDENTIAL COMPANY IP INFORMATION"). The Company believes that all
Use by the Acquired Corporations of Confidential Company IP Information not
owned by the Acquired Corporations has been and is pursuant to the terms of a
written agreement between an Acquired Corporation and the owner of such
Confidential Company IP Information, or is otherwise lawful.
(l) The Company will do all acts necessary or reasonably requested
to be done by Veeco in order to perfect title to the Intellectual Property in
the Surviving Corporation, including, without limitation, to execute and deliver
any and all oaths, assignments, affidavits and other documents in form and
substance as may be requested by Veeco; to communicate all facts known to the
Company relating to the Intellectual Property; to furnish Veeco with any and all
information, documents, materials or records of any kind in its control relating
to the Intellectual Property; and to discharge its obligations under this
subsection (l) promptly but in any event within such time period(s) as is
required to allow the Surviving Corporation to timely preserve or assert its
rights in connection with the maintenance, enforcement or defense of the rights
in Intellectual Property assigned to the Surviving Corporation hereunder. The
rights provided in this subsection (l) are cumulative of any rights of Veeco in
this Merger Agreement and shall be deemed transferable in whole or in part by
Veeco to its successors and assigns.
3.14 ENVIRONMENTAL MATTERS. (a) The Acquired Corporations'
ownership and operation of their business is and has been in material compliance
with all Environmental Laws. The Acquired Corporations have obtained all
approvals necessary or required under all applicable Environmental Laws for the
ownership and operation of their business, all such approvals are in effect, the
Acquired Corporations have not received written notice of any action to revoke
or modify
29
any of such approvals, and, to the Company's knowledge the ownership and
operation of the Acquired Corporations' business is and has been in material
compliance with all terms and conditions thereof. The Acquired Corporations have
not received notice of any pending or Threatened claim or investigation by any
Governmental Authority or any other Person concerning potential liability of any
of the Acquired Corporations under Environmental Laws in connection with the
ownership or operation of its business. To the Company's knowledge, there has
not been a Release of any Hazardous Substance by any Acquired Corporation, nor
by any other Person at, upon, in, from or under any premises now or previously
owned or occupied by an Acquired Corporation or upon which its assets are or
were located at any time during an Acquired Corporation's ownership and/or
occupancy thereof. No Acquired Corporation's real properties (whether owned or
leased) is currently, and, to the Company's knowledge, no such real property has
been, used as a treatment, storage or disposal facility for Hazardous
Substances; and no Hazardous Substances are present on any such real property,
except in such quantities as are handled in material compliance with all
applicable manufacturer's instructions and in material compliance with all
applicable Environmental Laws and as are used in the operation of the Acquired
Corporations' business.
(b) The Company has (i) provided or made available to Veeco all
test results, records, notices, disclosures and reports in an Acquired
Corporation's possession with respect to an Acquired Corporation's real property
(whether owned or leased) and any real property previously owned or occupied by
an Acquired Corporation, including all correspondence with any Governmental
Authority, concerning health, safety and/or environmental issues or concerns and
(ii) made all disclosures, including notice of a Release or Threatened Release
of a Hazardous Substance, required of an Acquired Corporation under any
Environmental Law.
(c) No Acquired Corporation has received notice, or otherwise
obtained knowledge, of the existence of any circumstances or conditions that
have a reasonable likelihood of resulting in any damages for which it could be
liable arising pursuant to any Environmental Law.
(d) To the Company's knowledge, no Acquired Corporation has
material liability with respect to any Hazardous Substance which it has
transported or arranged for the transportation of to premises not owned or
operated by an Acquired Corporation.
3.15 LABOR RELATIONS. The Acquired Corporations are conducting
their businesses in material compliance with all applicable Laws relating to
employment or labor, including, without limitation, those Laws relating to
wages, hours, collective bargaining, unemployment insurance, workers'
compensation and equal employment opportunity, except where the failure to be in
compliance would not, individually or in the aggregate, have a Material Adverse
Effect on the Company. No union or other collective bargaining unit has been
certified as representing any of the employees of any Acquired Corporation, nor
has any Acquired Corporation agreed to recognize any union or other collective
bargaining unit. The Company has complied with all material terms of the
collective bargaining agreement between the Company and Local 342, International
Union of Electronic, Electrical, Salaried, Machine & Furniture Workers. There
are no labor disputes pending or Threatened involving strikes, work stoppages,
slowdowns or lockouts. There are no grievance proceedings or claims of unfair
labor practices filed or, to the Company's knowledge, Threatened
30
to be filed with the National Labor Relations Board against any Acquired
Corporation. There is no union representation or organizing effort pending or
Threatened against any Acquired Corporation.
3.16 BROKERS AND FINDERS. Except for Xxxxxx Brothers, Inc.
("COMPANY BROKER") previously disclosed to Veeco, no broker, finder, agent or
similar intermediary has acted on the Company's behalf in connection with this
Merger Agreement or the transactions contemplated hereby, and there are no
brokerage commissions, finders' fees or similar fees or commissions payable in
connection therewith based on any Contract with the Company or any action taken
by the Company. The Company shall pay all fees and disbursements of the Company
Broker.
3.17 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and war ranties of the Company set forth in this Merger
Agreement and in any agreement, certificate or other document required to be
delivered or given to Veeco or Acquisition by the Company pursuant to this
Merger Agreement will be true and correct at the Closing Date with the same
force and effect as if made on that date.
3.18 POOLING OF INTERESTS; REORGANIZATION. Neither the Company
nor, to the knowledge of the Company, any of its directors, officers or
stockholders has taken or failed to take any action which (i) would interfere
with Veeco's ability to account for the Merger as a "pooling of interests", or
(ii) could reasonably be expected to cause the Merger to fail to qualify as a
reorganization as described in Section 368(a) of the Code with respect to which
no gain or loss will be recognized by a stockholder of the Company on the
conversion of Company Common Stock into Veeco Shares pursuant to the Merger
(except with respect to any cash received in lieu of a fractional share).
3.19 BOARD OF RECOMMENDATION. The Board of Directors of the
Company has, by a unanimous vote of directors present at a meeting of such Board
or Directors duly held on February 28, 2000, approved and adopted this Merger
Agreement, the Merger and the other transactions contemplated hereby, and prior
to the date hereof has resolved to recommend that the holders of Company Common
Stock approve and adopt this Merger Agreement, the Merger and the other
transactions contemplated hereby.
3.20 FAIRNESS OPINION. The Company has received the opinion of
Xxxxxx Brothers, Inc. to the effect that on the date of delivery thereof, the
Merger Consideration was fair from a financial point of view to the stockholders
of the Company.
3.21 STATE ANTITAKEOVER STATUTES. The Company has granted all
approvals and taken all other steps necessary to exempt the Company Stockholder
Voting Agreement, the Merger and the other transactions contemplated hereby from
the requirements and provisions of Section 203 of the DGCL and other state
antitakeover statutes or regulations to the extent applicable such that none of
the provisions of such "business combination," "moratorium," "control share," or
other state antitakeover statute or regulation (x) prohibits or restricts the
Company's ability to perform its obligations under this Merger Agreement or its
ability to consummate the Merger and the other transactions contemplated hereby,
(y) would have the effect of invalidating or voiding this Merger
31
Agreement or any provisions hereof, or (z) would subject Veeco to any material
impediment or condition in connection with the exercise of any of their
respective rights under this Merger Agreement.
IV. REPRESENTATIONS AND WARRANTIES OF VEECO AND ACQUISITION.
Veeco and Acquisition, jointly and severally, hereby represent and
warrant to the Company that, except as set forth in the Veeco SEC Documents, or
in a specific subsection of the Veeco Disclosure Schedule:
4.01 ORGANIZATION OF VEECO AND ACQUISITION. (a) Each of Veeco and
Acquisition is a corporation duly organized, validly existing and in good
standing (in jurisdictions which recognize such concept) under the Laws of its
jurisdiction of incorporation, and is qualified or licensed as a foreign
corporation to do business in each other jurisdiction where the failure to so
qualify would have a Material Adverse Effect upon its business or operations.
Each of Veeco and Acquisition has all requisite corporate power to own, operate
and lease its assets and to carry on its business as now being conducted. Veeco
has made available to the Company complete and correct copies of its Certificate
of Incorporation and By-Laws and the Certificate of Incorporation and ByLaws of
Acquisition, in each case as amended to the date hereof.
(b) Each of Veeco and Acquisition has full corporate power and
authority to execute, deliver and perform this Merger Agreement and, in the case
of Acquisition, the Certificate of Merger, and to consummate the transactions
contemplated hereby. The execution, delivery and performance of this Merger
Agreement, the Certificate of Merger and all other documents and agreements to
be delivered pursuant hereto and the consummation of the transactions
contemplated hereby have been duly and validly authorized by the boards of
directors of Veeco and Acquisition, and, except for the approval by the
stockholders of Veeco of the issuance of the Veeco Shares pursuant to the
Merger, no other corporate proceedings on the part of Veeco or Acquisition are
necessary to authorize this Merger Agreement, the Certificate of Merger and any
related documents or agreements or to consummate the transactions contemplated
hereby. This Merger Agreement has been duly and validly executed and delivered
by Veeco and Acquisition, and the Certificate of Merger, when executed at the
Closing, will be duly and validly executed and delivered by Acquisition. This
Merger Agreement, assuming the due authorization, execution and delivery by each
other party hereto, constitutes a legal, valid and binding agreement of both
Veeco and Acquisition, enforceable in accordance with its terms, and the
Certificate of Merger, when executed by Veeco and Acquisition at the Closing,
assuming the due authorization, execution and delivery by each other party
hereto, will be legal, valid and binding agreements of Acquisition, enforceable
in accordance with their terms, except as such enforceability may be limited by
bankruptcy, moratorium, insolvency, reorganization, fraudulent conveyance or
other laws affecting the enforcement of creditors' rights generally or by
general equitable principles.
(c) Acquisition is a newly formed wholly-owned first tier
Subsidiary of Veeco and has conducted and will conduct no business or activity
or has incurred or will incur any liability or obligation, other than hereunder
or in accordance with the Merger.
32
4.02 CAPITALIZATION. (a) The authorized capital stock of Veeco
consists of 25,000,000 Veeco Shares, of which 17,627,701 were issued and
outstanding as of December 31, 1999, and 500,000 shares of preferred stock, none
of which are outstanding. All of the outstanding Veeco Shares have been duly
authorized and validly issued and are fully paid and nonassessable and were
issued in conformity with applicable laws.
(b) As of December 31, 1999, 2,119,155 Veeco Shares were issuable
upon the exercise of options granted under the Veeco Instruments Inc. Amended
and Restated 1992 Employees' Stock Option Plan and under the Amended and
Restated Veeco Instruments Inc. 1994 Stock Option Plan for Outside Directors,
and 5,182 Veeco Shares were issuable upon the exercise of options granted to
shareholders of Wyko Corporation in the merger of a wholly-owned subsidiary of
Veeco with and into Wyko Corporation in July 1997 (collectively, the "VEECO
OPTIONS"). Except for the Veeco Options and except pursuant to the Veeco
Instruments Inc. Employees Stock Purchase Plan, there are no outstanding Equity
Securities, or other obligations to issue or grant any rights to acquire any
Equity Securities, of Veeco, or any Contracts to restructure or recapitalize
Veeco. There are no outstanding Contracts of Veeco to repurchase, redeem or
otherwise acquire any Equity Securities of Veeco. All outstanding Equity
Securities of Veeco have been duly authorized and validly issued in conformity
with applicable laws.
4.03 NON-CONTRAVENTION. (a) Except as set forth on SCHEDULE
4.03(A) to the Veeco Disclosure Schedule, the execution, delivery and
performance by Veeco and Acquisition of this Merger Agreement and the
consummation of the transactions contemplated hereby will not (i) violate any
provision of the Certificate of Incorporation or By-Laws or other organizational
documents of Veeco or Acquisition, (ii) violate, or be in conflict with, or
constitute a default (or an event which, with notice or lapse of time or both,
would constitute a default) under, or result in or provide the basis for the
termination of, or accelerate the performance required by, or excuse performance
by any Person of any of its obligations under, or cause the acceleration of the
maturity of any debt or obligation pursuant to, or result in the creation or
imposition of any Lien upon any property or assets of Veeco under, any material
Contract to which Veeco or Acquisition is a party or by which any of their
respective property or assets are bound, or to which any of the property or
assets of Veeco or Acquisition is subject, except for Contracts wherein the
other party thereto has consented to the consummation of this transaction, (iii)
violate any Law applicable to Veeco or Acquisition or (iv) violate or result in
the revocation or suspension of any material license, permit, certificate,
consent or approval from a Governmental Authority that is necessary for the
business and operations of Veeco or Acquisition.
(b) No filing or registration with, or permit, authorization,
consent or approval of, or notification or disclosure to, any Governmental
Authority is required by Veeco or Acquisition in connection with the execution
and delivery of this Merger Agreement or the consummation by Veeco or
Acquisition of the Merger and the other transactions contemplated hereby, except
(i) in connection with the applicable requirements of the HSR Act, (ii) in
connection with the provisions of the Securities Act and the rules and
regulations promulgated thereunder, and the Exchange Act and the rules and
regulations promulgated thereunder, (iii) the filing of appropriate merger
documents as required by the DGCL, (iv) such consents, approvals, orders,
permits,
33
authorizations, registrations, or declarations and filings as may be required
under the Blue Sky laws of various states.
4.04 REPORTS. All documents required to be filed as exhibits to
the Veeco SEC Documents have been so filed. All Veeco SEC Documents were filed
as and when required by the Exchange Act or the Securities Act, as applicable.
The Veeco SEC Documents include all statements, reports and documents required
to be filed by Veeco pursuant to the Exchange Act and the Securities Act. As of
their respective filing dates, the Veeco SEC Documents complied in all material
respects with the requirements of the Exchange Act and the Securities Act, as
applicable, and, as of their respective filing dates, none of the Veeco SEC
Documents contained any untrue statement of a material fact or omitted to state
a material fact required to be stated therein or necessary to make the
statements made therein, in light of the circumstances in which they were made,
not misleading, except to the extent corrected by a subsequently filed Veeco SEC
Document. None of Veeco's subsidiaries is required to file any statements,
reports or documents with the SEC. The financial statements of Veeco and its
subsidiaries, including the notes thereto, included in the Veeco SEC Documents
(the "VEECO FINANCIAL STATEMENTS"), complied in all material respects with
applicable accounting requirements and with the published rules and regulations
of the SEC with respect thereto as of their respective dates (except as may be
indicated in the notes thereto or, in the case of unaudited statements included
in Quarterly Reports on Form 10-Q, as permitted by Form 10- Q of the SEC). The
Veeco Financial Statements fairly present the consolidated financial condition,
operating results and cash flows of Veeco and its subsidiaries at the dates and
during the periods indicated therein in accordance with GAAP consistently
applied (subject, in the case of unaudited statements, to normal, recurring
year-end adjustments and additional footnote disclosures). There has been no
material change in Veeco's accounting policies except as described in the notes
to the Veeco Financial Statements. At all times since January 1, 1999 Veeco has
(i) filed as and when due all documents required to be filed with NASDAQ, and
(ii) otherwise timely performed all of Veeco's obligations pursuant to the rules
and regulations of NASDAQ.
4.05 ABSENCE OF CERTAIN CHANGES. Except as disclosed in the Veeco
SEC Documents, since September 30, 1999 (the "VEECO BALANCE SHEET DATE"), Veeco
and its Subsidiaries have conducted their business in the ordinary course
consistent with past practice and there has not occurred: (i) any change, event
or condition (whether or not covered by insurance) that has resulted in, or
might reasonably be expected to result in, a Material Adverse Effect to Veeco;
(ii) any acquisition, sale or transfer of any material asset of Veeco or any of
its subsidiaries other than in the ordinary course of business and consistent
with past practice; (iii) any change in accounting methods or practices
(including any change in depreciation or amortization policies or rates) by
Veeco or any revaluation by Veeco of any of its assets; (iv) any declaration,
setting aside, or payment of a dividend or other distribution with respect to
the shares of Veeco, or any direct or indirect redemption, purchase or other
acquisition by Veeco of any of its shares of capital stock; (v) any material
contract entered into by Veeco or any of its subsidiaries, other than in the
ordinary course of business, or any material amendment or termination of, or
default under, any material contract to which Veeco or any of its subsidiaries
is a party or by which it or any of them is bound; (vi) any action or failure to
act that could reasonably be expected to cause the Merger to fail to qualify as
a reorganization as described in Section 368(a) of the Code with respect to
which no gain
34
or loss will be recognized by a stockholder of the Company on the conversion of
Company Common Stock into Veeco Shares pursuant to the Merger (except with
respect to any cash received in lieu of a fractional share); or (vii) any
agreement by Veeco or any of its subsidiaries to do any of the things described
in the preceding clauses (i) through (vi) (other than negotiations with the
Company and its representatives regarding the transactions contemplated by this
Merger Agreement).
4.06 NO UNDISCLOSED LIABILITIES. Neither Veeco nor any of its
subsidiaries has any obligations or liabilities of any nature (matured or
unmatured, fixed or contingent) which are material to Veeco and its
subsidiaries, taken as a whole, other than those (i) set forth or adequately
provided for in the Balance Sheet of Veeco and its subsidiaries included in
Veeco's Quarterly Report on Form 10-Q for the period ended September 30, 1999
(the "VEECO BALANCE SHEET"), (ii) not required to be set forth on the Veeco
Balance Sheet under GAAP, (iii) incurred in the ordinary course of business
since the Veeco Balance Sheet Date and consistent with past practice or (iv)
which individually, or in the aggregate would not have a Material Adverse Effect
on Veeco.
4.07 LITIGATION. Except as disclosed in the Veeco SEC Documents,
(i) there is no private or governmental action, suit, proceeding, claim,
arbitration or investigation pending before any agency, court or tribunal,
foreign or domestic, or, to the knowledge of Veeco or any of its Subsidiaries,
Threatened against Veeco or any of its Subsidiaries or any of their respective
properties or any of their respective officers or directors (in their capacities
as such) that, individually or in the aggregate, could reasonably be expected to
have a Material Adverse Effect on Veeco, and (ii) there is no judgment, decree
or order against Veeco or any of its Subsidiaries or, to the knowledge of Veeco
or any of its Subsidiaries, any of their respective directors or officers (in
their capacities as such) that could prevent, enjoin, alter or materially delay
any of the transactions contemplated by this Merger Agreement, or that could
reasonably be expected to have a Material Adverse Effect on Veeco.
4.08 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no material
agreement, judg ment, injunction, order or decree binding upon Veeco or any of
its Subsidiaries which has or reasonably could be expected to have the effect of
prohibiting or materially impairing any current or future business practice of
Veeco or any of its Subsidiaries, any acquisition of property by Veeco or any of
its Subsidiaries or the conduct of business by Veeco or any of its Subsidiaries
as currently conducted or as proposed to be conducted by Veeco or any of its
Subsidiaries.
4.09 GOVERNMENTAL AUTHORIZATION. Veeco and each of its
Subsidiaries have obtained each federal, state, county, local or foreign
governmental consent, license, permit, grant, or other authorization of a
Governmental Authority that is required for the operation of Veeco's or any of
its Subsidiaries' business or the holding of any interest in its properties
(collectively, the "VEECO AUTHORIZATIONS"), and all of such Veeco Authorizations
are in full force and effect, except where the failure to obtain or have any of
such Veeco Authorizations could not reasonably be expected to have a Material
Adverse Effect on Veeco.
4.10 TAXES. Veeco and each of its Subsidiaries have filed or
caused to be filed on a timely basis all Tax Returns that are or were required
to be filed by Veeco and/or any of its
35
Subsidiaries, either separately or as part of an affiliated group of
corporations, pursuant to the Laws of any Governmental Authority with taxing
power over Veeco and/or any of its Subsidiaries or their assets and business.
All Tax Returns filed by Veeco or any of its Subsidiaries are true, correct and
complete. Veeco and each of its Subsidiaries have paid all Taxes that have
become due by it any pursuant to those Tax Returns, or otherwise, or pursuant to
any assessment received by Veeco and/or any Subsidiary thereof, except such
Taxes, if any, as are being contested in good faith and as to which adequate
reserves have been provided on the Veeco Balance Sheet. All Taxes that Veeco or
any of its Subsidiaries is, or was, required by Law to withhold and collect have
been duly withheld and collected and, to the extent required, have been paid to
the appropriate Governmental Authority. There is no agreement, plan, arrangement
or other contract covering any employee or independent contractor of Veeco or
any of its Subsidiaries that could give rise to the payment of any amount that
could not be deductible by Veeco or such Subsidiary pursuant to Section 280G or
Section 162(m) of the Code. The charges, accruals and reserves with respect to
Taxes on the Veeco Balance Sheet with respect to Veeco and each of its
Subsidiaries (excluding any provision for deferred income taxes established to
reflect timing differences between book and tax income) for all tax periods (or
portions thereof) ending on or before the Closing Date (including any period for
which no Tax Return has yet been filed) are adequate for GAAP purposes.
4.11 POOLING OF INTERESTS; REORGANIZATION. Neither Veeco nor any
of its Subsidiaries nor, to the knowledge of Veeco, any of their respective
directors, officers or stockholders has taken or failed to take any action which
(i) would interfere with Veeco's ability to account for the Merger as a "pooling
of interests", or (ii) could reasonably be expected to cause the Merger to fail
to qualify as a reorganization as described in Section 368(a) of the Code with
respect to which no gain or loss will be recognized by a stockholder of the
Company on the conversion of Company Common Stock into Veeco Shares pursuant to
the Merger (except with respect to any cash received in lieu of a fractional
share).
4.12 BROKERS AND FINDERS. Except for Banc of America Securities
LLC ("VEECO'S BROKER") or as previously disclosed to the Company, no broker,
finder, agent or similar intermediary has acted on Veeco's or Acquisition's
behalf in connection with this Merger Agreement or the transactions contemplated
hereby, and there are no brokerage commissions, finders' fees or similar fees or
commissions payable in connection therewith based on any Contract with Veeco or
Acquisition or any action taken by Veeco or Acquisition. Veeco shall pay all
fees and disbursements of Veeco's Broker.
4.13 ACCURACY OF REPRESENTATIONS AND WARRANTIES. All
representations and war ranties of Veeco and Acquisition set forth in this
Merger Agreement and in any agreement, certificate or other document required to
be delivered or given to the Company by Veeco or Acquisition pursuant to this
Merger Agreement will be true and correct at the Closing Date with the same
force and effect as if made on that date.
4.14 BOARD RECOMMENDATION. The Board of Directors of Veeco has, by
a unanimous vote at a meeting of such Board of Directors duly held on February
28, 2000, approved and adopted this Merger Agreement, the Merger and the other
transactions contemplated hereby, and
36
prior to the date hereof has resolved to recommend that the holders of Veeco
Shares approve and adopt this Merger Agreement, the Merger and the other
transactions contemplated hereby.
4.15 FAIRNESS OPINION. Veeco has received the opinion of Banc of
America Securities LLC to the effect that on the date of delivery thereof, the
Merger Consideration was fair from a financial point of view to Veeco.
4.16 COMPLIANCE WITH LAWS. Each of Veeco and its Subsidiaries has
complied with, are not in violation of, and have not received any notices of
violation with respect to, any federal, state, local or foreign statute, Law or
regulation with respect to the conduct of its business, or the ownership or
operation of its business, except for such violations or failures to comply as
could not be reasonably expected to have a Material Adverse Effect on Veeco.
4.17 ENVIRONMENTAL MATTERS. (a) Veeco and its Subsidiaries'
ownership and operation of their business is and has been in material compliance
with all Environmental Laws. Veeco and its Subsidiaries have obtained all
approvals necessary or required under all applicable Environmental Laws for the
ownership and operation of their business, all such approvals are in effect,
they have not received written notice of any action to revoke or modify any of
such approvals, and, to Veeco's knowledge the ownership and operation of their
business is and has been in material compliance with all terms and conditions
thereof. Veeco and its Subsidiaries have not received notice of any pending or
Threatened claim or investigation by any Governmental Authority or any other
Person concerning potential liability of any of Veeco and its Subsidiaries under
Environmental Laws in connection with the ownership or operation of its
business. To Veeco's knowledge, there has not been a Release of any Hazardous
Substance by Veeco or its Subsidiaries, nor by any other Person at, upon, in,
from or under any premises now or previously owned or occupied by Veeco or its
Subsidiaries or upon which any of their assets are or were located at any time
during Veeco or its Subsidiaries' ownership and/or occupancy thereof. No real
properties of Veeco or any Subsidiary (whether owned or leased) is currently,
and, to Veeco's knowledge, no such real property has been, used as a treatment,
storage or disposal facility for Hazardous Substances; and no Hazardous
Substances are present on any such real property, except in such quantities as
are handled in material compliance with all applicable manufacturer's
instructions and in material compliance with all applicable Environmental Laws
and as are used in the operation of the business.
(b) Veeco has (i) provided or made available to the Company all
test results, records, notices, disclosures and reports in Veeco or its
Subsidiaries' possession with respect to real property of Veeco or any
Subsidiary (whether owned or leased) and any real property previously owned or
occupied by Veeco or its Subsidiaries, including all correspondence with any
Governmental Authority concerning health, safety and/or environmental issues or
concerns and (ii) made all disclosures, including notice of a Release or
Threatened Release of a Hazardous Substance, required of Veeco or its
Subsidiaries under any Environmental Law.
(c) Neither Veeco nor any Subsidiary thereof has received notice,
or otherwise obtained knowledge, of the existence of any circumstances or
conditions that have a
37
reasonable likelihood of resulting in any damages for which it could be liable
arising pursuant to any Environmental Law.
(d) To Veeco's knowledge, neither Veeco nor any Subsidiary thereof
has material liability with respect to any Hazardous Substance which it has
transported or arranged for the transportation of to premises not owned or
operated by Veeco or any such Subsidiary.
4.18 INTELLECTUAL PROPERTY RIGHTS. (a) Veeco or a Subsidiary
thereof owns or has the right to make, have made, use, sell and license all new
and useful inventions, discoveries and all letters patent (including, but not
limited to, all reissues, extensions, renewals, divisions and continuations
thereof and thereto (including continuations-in-part)) and all applications
therefor; Use, sell and license all copyrights, mask works, trademarks and
service marks and all registrations and applications for registration thereof;
Use, sell and license all trade secrets, know-how, inventory, algorithms,
methods, processes, protocols, methodologies, computer software (including, but
not limited to, source code in object code and source code form), design,
functional, technical and other specifications (for computer software and other
properties) and all other tangible and intangible proprietary materials and
information required for the conduct of the business of Veeco and its
Subsidiaries ("VEECO INTELLECTUAL PROPERTY").
(b) To the knowledge of Veeco (i) all authorship in the computer
software, documentation, software design, technical and functional software
specifications created by Veeco or any Subsidiary thereof and Used in products
or services created by Veeco or any such Subsidiary is original or has not been
unlawfully copied or misappropriated and (ii) all computer software and related
documentation manuals contained or Used in products of (including documentation
and product and user manuals) or services to customers provided by Veeco or any
Subsidiary are owned by or licensed to Veeco or such Subsidiary, and such
licenses provide Veeco or such Subsidiary with the right to sublicense or
otherwise authorize Use of the licensed subject matter to their customers and
authorized third party users.
(c) (i) Except for third parties which have rights pursuant to
license agreements and similar agreements relating to the Veeco Intellectual
Property, and except for rights granted to the customers of Veeco or any
Subsidiary thereof, Veeco or a Subsidiary thereof has the sole and exclusive
right to Use, sell and license each of the copyrights owned by Veeco or any
Subsidiary thereof and to make, Use, sell and license each of the letters patent
owned by Veeco or a Subsidiary and each of the U.S. federal trademark and
service xxxx registrations owned by Veeco or a Subsidiary thereof (the foregoing
collectively referred to as "VEECO-OWNED IP REGISTRATIONS") and (ii) Veeco has
no knowledge that any of the Veeco-Owned IP Registrations are invalid,
unenforceable or not subsisting. With the exception of copyright rights, and
with the exception of Veeco-Owned IP Registrations no longer used by Veeco or
any Subsidiary thereof, all material Veeco-Owned IP Registrations have been and
currently remain duly registered with or issued by the appropriate governmental
agency of the United States or of foreign countries, and all required
maintenance and annuity fees have been paid in full to, and all declarations
required pursuant to 15 U.S.C. Sections 1058 and 1065 (and foreign counterparts
to the same) have been accepted by, or timely submitted to, the proper
Governmental Authority.
38
(d) Each item of Veeco Intellectual Property owned by Veeco or a
Subsidiary thereof (the "VEECO-OWNED IP") (i) is free and clear of any
attachments, liens, security interests, UCC filings or any other encumbrances;
(ii) is not subject to any outstanding judicial order, decree, judgment or
stipulation or to any agreement restricting the scope of Veeco's or such
Subsidiary's Use thereof; and (iii) together with each item of Veeco
Intellectual Property which Veeco or such Subsidiary has a right to Use or
practice pursuant to one or more license or similar agreements, is not subject
to any suits, actions, claims or demands of any third party and no action or
proceeding, whether judicial, administrative or otherwise, has been instituted,
is pending or, to Veeco's knowledge, Threatened, which challenges or affects the
rights of Veeco or such Subsidiary in the same.
(e) (i) Except as set forth in SCHEDULE 4.18(C)(I) of the Veeco
Disclosure Schedule, neither Veeco nor any Subsidiary thereof has received any
claim or any cease and desist or equivalent letter regarding, or any other
notice of any allegation to the effect that any of their products, software,
apparatus, methods or services which Veeco or such Subsidiary makes, Uses,
sells, offers or provides infringes upon, misappropriates or otherwise violates
the intellectual property of any third party; (ii) Veeco has no knowledge of any
unauthorized Use by, unauthorized disclosure to or by or infringement,
misappropriation or other violation of any of Veeco's Intellectual Property by
any current or former officer, employee, independent contractor, consultant or
any other agent of Veeco or any Subsidiary thereof (a "VEECO AGENT" or the
"VEECO AGENTS") or by any third party, other than such third party disclosures,
infringements, misappropriations and violations as would not, individually or in
the aggregate, have a Material Adverse Effect on Veeco; (iii) neither Veeco nor
any Subsidiary thereof has entered into any agreement to indemnify any third
party against any claim of infringement, misappropriation or other violation of
Veeco Intellectual Property rights other than indemnification provisions
contained in purchase orders, customer agreements, license or similar agreements
or software licenses arising in the ordinary course of business; and (iv) since
its formation, none of Veeco or any Subsidiary thereof has been charged in any
suit, action or proceeding with, or has charged others with, unfair competition,
infringement, misappropriation, wrongful use of or any other violation or
improper or illegal activity with respect to or affecting Veeco Intellectual
Property or with claims contesting the validity, ownership or right to make,
Use, sell, license or dispose of Veeco Intellectual Property.
(f) To the knowledge of Veeco, (a) all computer software created
by employees of Veeco or a Subsidiary thereof within the scope of their
employment thereby and used in the products or services of Veeco or a Subsidiary
thereof and all original copyrightable authorship therein is owned by Veeco or a
Subsidiary thereof; (b) all rights in all inventions and discoveries made,
developed or conceived by Veeco Agents during the course of their employment (or
other retention) by Veeco or a Subsidiary thereof and material to the business
of Veeco or a Subsidiary thereof or made, written, developed or conceived with
the use or assistance of Veeco's or a Veeco Subsidiary's facilities or resources
and which are the subject of one or more issued letters patent or applications
for letters patent have been assigned in writing to Veeco or a Subsidiary
thereof; (c) the policy of Veeco or a Subsidiary thereof requires each employee
of Veeco or a Subsidiary thereof to sign documents confirming that he or she
assign to Veeco or a Subsidiary thereof all Veeco
39
Intellectual Property rights made, written, developed or conceived by him or her
during the course of his or her employment (or other retention) by Veeco or a
Subsidiary thereof and relating to the business of Veeco or a Subsidiary thereof
or made, written, developed or conceived with the use or assistance of Veeco's
or a Subsidiary's facilities or resources to the extent that ownership of any
such Veeco Intellectual Property rights does not vest in Veeco or a Subsidiary
thereof by operation of Law, and (d) all Veeco Intellectual Property rights
made, written, developed or conceived by each Veeco Agent during the course of
his or her retention by Veeco or a Subsidiary thereof and material to the
business of Veeco or a Subsidiary thereof have been assigned or licensed to
Veeco or such Subsidiary thereof.
(g) Veeco believes that Veeco and its Subsidiaries have taken all
reasonable and practicable steps to protect and preserve the confidentiality of
all Veeco Intellectual Property (including, without limitation, trade secrets
and source codes, but excluding letters patent, inventory, copyrights, mask
works, trademarks and service marks and registrations and applications for
registration thereof) ("VEECO CONFIDENTIAL IP INFORMATION"). Veeco believes that
all Use by Veeco and its Subsidiaries of Veeco Confidential IP Information not
owned by Veeco and its Subsidiaries has been and is pursuant to the terms of a
written agreement between Veeco or a Subsidiary thereof and the owner of such
Confidential Information, or is otherwise lawful.
V. COVENANTS.
5.01 ACCESS. Between the date hereof and the Closing Date, the
Company shall, and shall cause each of the other Acquired Corporations to,
provide Veeco, Acquisition and each of their authorized Representatives with
reasonable access to the properties, books, records, Tax Returns, Contracts,
information, documents and personnel of the Acquired Corporations as they relate
to the Acquired Corporations' business as Veeco or Acquisition may reasonably
request for the purpose of making such investigation of the business,
properties, financial condition and results of operations of the Acquired
Corporations' business as Veeco or Acquisition may deem appropriate or
necessary. Between the date hereof and the Closing Date, Veeco shall, and shall
cause its Subsidiaries to, provide the Company and each of its authorized
Representatives with reasonable access to the properties, books, records, Tax
Returns, Contracts, information, documents and personnel of Veeco and its
Subsidiaries as they relate to Veeco's and its Subsidiaries' businesses as the
Company may reasonably request for the purpose of making such investigation of
the business, properties, financial condition and results of operations of
Veeco's and its Subsidiaries' businesses as the Company may deem appropriate or
necessary. Notwithstanding anything to the contrary herein, if any party is
prohibited from disclosing confidential information to another party by Law or
by preexisting confidentiality obligations, then such party shall inform the
other party of such prohibition and the parties shall work together to resolve
any related due diligence matters without violating such Laws or confidentiality
obligations, including using reasonable best efforts to obtain third party
consents to such disclosure, if appropriate.
5.02 CONDUCT OF THE BUSINESS OF THE PARTIES PENDING THE CLOSING
DATE. (a) Except as otherwise expressly permitted by this Merger Agreement,
between the date hereof and the Closing Date, the Company shall not, and shall
cause the other Acquired Corporations not to, without the
40
prior consent of Veeco, take any affirmative action, or fail to take any
reasonable action within their control, as a result of which any of the changes
or events listed in Section 3.11 of this Merger Agreement is reasonably likely
to occur.
(b) Except as otherwise expressly permitted by this Merger
Agreement, between the date hereof and the Closing Date, Veeco and Acquisition
shall not, without the prior consent of the Company take any affirmative action,
or fail to take any reasonable action within their control, as a result of which
any of the changes or events listed in Section 4.05 of this Merger Agreement is
reasonably likely to occur.
5.03 CONDUCT OF BUSINESS OF THE COMPANY AND VEECO. During the
period from the date of this Merger Agreement and continuing until the earlier
of the termination of this Merger Agreement and the Effective Time, each of the
Company and Veeco agrees (except to the extent expressly contemplated by this
Merger Agreement or as consented to in writing by the other) to, and to cause
their respective Subsidiaries to, carry on its business in the usual, regular
and ordinary course in substantially the same manner as heretofore conducted, to
pay debts and Taxes when due (subject (i) to good faith disputes over such debts
or Taxes and (ii) in the case of Taxes of the Acquired Corporations, to Veeco's
consent (which consent will not be unreasonably withheld or delayed) to the
filing of material Tax Returns if applicable), to pay or perform other
obligations when due, and to use all reasonable efforts consistent with past
practice and policies to preserve intact its present business organization, use
its best efforts consistent with past practice to keep available the services of
its present officers and key employees and agents and use its best efforts
consistent with past practice to preserve its relationships and good will with
customers, suppliers, distributors, licensors, licensees, landlords, creditors,
employees, agents and others having business dealings with it, to the end that
its goodwill and ongoing businesses shall be unimpaired at the Effective Time.
The Company shall confer with Veeco concerning operational matters of the
Acquired Corporations of a material nature and otherwise report periodically to
Veeco concerning the status of the Acquired Corporations' business, operations
and finances. Without limiting the foregoing, except as expressly contemplated
by this Merger Agreement, neither the Company nor Veeco shall do, cause or
permit any of the following without the prior written consent of the other
(which consent will not be unreasonably withheld or delayed):
(a) CHARTER DOCUMENTS. Cause or permit any amendments to its
Certificate of Incorporation or Bylaws;
(b) DIVIDENDS; CHANGES IN CAPITAL STOCK. Declare or pay any
dividends on, or make any other distributions (whether in cash, stock or
property) in respect of, any of its capital stock, or split, combine or
reclassify any of its capital stock or issue or authorize the issuance of any
other securities in respect of, in lieu of or in substitution for shares of its
capital stock, or repurchase or otherwise acquire, directly or indirectly, any
shares of its capital stock except from former employees, directors and
consultants in accordance with currently effective agreements providing for the
repurchase of shares in connection with any termination of service to it or its
Subsidiaries, or sell or otherwise issue any shares of its capital stock or
securities exercisable or exchangeable for or convertible into shares of its
capital stock, other than in accordance with or
41
pursuant to existing option plans or upon the exercise or conversion of Company
Options or Veeco Options (as applicable) outstanding as of the date of this
Merger Agreement or other convertible or exchangeable securities outstanding as
of the date of this Merger Agreement.
(c) POOLING; REORGANIZATION. Take or fail to take any action
which (i) would interfere with Veeco's ability to account for the Merger as a
"pooling of interests", or (ii) could reasonably be expected to cause the Merger
to fail to qualify as a reorganization as described in Section 368(a) of the
Code with respect to which no gain or loss will be recognized by a stockholder
of the Company on the conversion of Company Common Stock into Veeco Shares
pursuant to the Merger (except with respect to any cash received in lieu of a
fractional share); or
(d) OTHER. Take, or agree in writing or otherwise to take, any
of the actions described in Sections 5.03(a) through (c) above, or any action
which would make any of its representations or warranties contained in this
Merger Agreement untrue or incorrect in any material respect or prevent it from
performing or cause it not to perform its covenants hereunder in any material
respect.
5.04 CONSENTS. (a) The Company, Veeco and Acquisition shall
cooperate and use their respective reasonable best efforts to obtain, prior to
the Effective Time, all licenses, permits, Consents, approvals, authorizations,
qualifications and orders of Governmental Authorities, parties to the Material
Contracts and any other Persons as are necessary for consummation of the
transactions contemplated by this Merger Agreement and for the Surviving
Corporation to enjoy all rights under such Material Contracts after the
consummation of the transactions contemplated by this Merger Agreement.
(b) The Company and Veeco shall use their respective
reasonable best efforts to file, as soon as practicable after the date of this
Merger Agreement, all notices, reports and other documents required to be filed
with any Governmental Authority with respect to the Merger and the other
transactions contemplated by this Merger Agreement, and to submit promptly any
additional information requested by any such Governmental Authority. Without
limiting the generality of the foregoing, the Company and Veeco shall, promptly
after the date of this Merger Agreement, prepare and file the notifications
required under the HSR Act (within fifteen days following the date of this
Merger Agreement) and any applicable foreign antitrust Laws or regulations in
connection with the Merger. The Company and Veeco shall respond as promptly as
practicable to (i) any inquiries or requests received from the Federal Trade
Commission or the Department of Justice for additional information or
documentation and (ii) any inquiries or requests received from any state
attorney general, foreign antitrust authority or other Governmental Authority in
connection with antitrust or related matters. Each of the Company and Veeco
shall (1) give the other party prompt notice of the commencement or threat of
commencement of any Legal Proceeding by or before any Governmental Authority
with respect to the Merger or any of the other transactions contemplated by this
Merger Agreement, (2) keep the other party informed as to the status of any such
Legal Proceeding or threat, and (3) promptly inform the other party of any
communication to or from the Federal Trade Commission, the Department of Justice
or any other Governmental Authority regarding the Merger. Except as may be
prohibited by any Governmental
42
Authority or by any Law, the Company and Veeco will consult and cooperate with
one another, and will consider in good faith the views of one another, in
connection with any analysis, appearance, presentation, memorandum, brief,
argument, opinion or proposal made or submitted in connection with any Legal
Proceeding under or relating to the HSR Act or any other foreign, federal or
state antitrust or fair trade Law. In addition, except as may be prohibited by
any Governmental Authority or by any Law, in connection with any Legal
Proceeding under or relating to the HSR Act or any other foreign, federal or
state antitrust or fair trade Law or any other similar Legal Proceeding, each of
the Company and Veeco will permit authorized Representatives of the other party
to be present at each meeting or conference relating to any such Legal
Proceeding and to have access to and be consulted in connection with any
document, opinion or proposal made or submitted to any Governmental Authority in
connection with any such Legal Proceeding. At the request of Veeco, the Company
shall agree to divest, sell, dispose of, hold separate or otherwise take or
commit to take any action that limits its freedom of action with respect to its
or its Subsidiaries' ability to retain, any of the businesses, product lines or
assets of the Company or any of its Subsidiaries, provided that any such action
is conditioned upon the consummation of the Merger and such action, when taken
together with any similar action by Veeco, would not have a Material Adverse
Effect on Veeco at and after the Effective Time. If requested by any
Governmental Authority, Veeco shall agree to divest, sell, dispose of, hold
separate or otherwise take or commit to take any action that limits its freedom
of action with respect to its or its Subsidiaries' ability to retain, any of the
businesses, product lines or assets of Veeco or any of its Subsidiaries,
provided, that (i) any such action is conditioned upon the consummation of the
Merger, (ii) in Veeco's reasonable judgment, absent the taking of such action a
required Consent or approval of such Governmental Authority to the consummation
of the Merger will not be obtained and (iii) in the reasonable judgment of
Veeco, such action will not materially affect the business or operations of
Veeco.
5.05 STOCK OPTIONS. (a) At the Effective Time, all rights with
respect to Company Common Stock under Company Options then outstanding shall be
converted into and become rights with respect to Veeco Shares, and Veeco shall
assume each such Company Option in accordance with the terms (as in effect as of
the date of this Merger Agreement) of the stock option plan or other arrangement
under which it was issued and the terms of the stock option agreement by which
it is evidenced. From and after the Effective Time, (i) each Company Option
assumed by Veeco may be exercised by the holder thereof solely for Veeco Shares,
(ii) the number of Veeco Shares subject to each such Company Option shall be
equal to the product of (A) the number of shares of Company Common Stock subject
to such Company Option immediately prior to the Effective Time multiplied by (B)
the Exchange Ratio, rounding to the nearest whole share, (iii) the per share
exercise price under each such Company Option shall be adjusted by dividing (x)
the per share exercise price under such Company Option by (y) the Exchange Ratio
and rounding to the nearest cent and (iv) any restriction on the exercise or
transfer of any such Company Option shall continue in full force and effect in
accordance with its terms and the term, exercisability, vesting schedule and
other provisions of or relating to such Company Option shall otherwise remain
unchanged; PROVIDED, HOWEVER, that each Company Option assumed by Veeco in
accordance with this Section 5.05(a) shall, in accordance with its terms, be
subject to further adjustment as appropriate to reflect any stock split, stock
dividend, reverse stock split, reclassification, recapitalization or other
similar transaction subsequent to the Effective Time. Veeco shall file with the
SEC, no later than the date on which the
43
Merger becomes effective, a registration statement on Form S-8 relating to the
Veeco Shares issuable with respect to the Company Options assumed by Veeco in
accordance with this Section 5.05(a).
(b) Prior to the Effective Time, the Company shall take all
action that may be necessary (under the plans pursuant to which Company Options
are outstanding and otherwise) to effectuate the provisions of this Section 5.05
and to ensure that, from and after the Effective Time, holders of Company
Options have no rights with respect thereto other than those specifically
provided in this Section 5.05.
5.06 EMPLOYEE BENEFITS. Veeco agrees that all employees of the
Company and its Subsidiaries who continue employment with Veeco, the Surviving
Corporation or any Subsidiary of the Surviving Corporation after the Effective
Time ("CONTINUING EMPLOYEES") shall be eligible to continue to participate in
the Surviving Corporation's health, vacation and other non-equity based employee
benefit plans; PROVIDED, HOWEVER, that (a) subject to the terms of any
applicable Collective Bargaining Agreement, nothing in this Section 5.06 or
elsewhere in this Merger Agreement shall limit the right of Veeco or the
Surviving Corporation to amend or terminate any such health, vacation or other
employee benefit plan at any time after the Effective Time, and (b) if Veeco or
the Surviving Corporation terminates any such health, vacation or other employee
benefit plan, then, subject to any necessary transition period, the affected
Continuing Employees shall be eligible to participate in Veeco's health,
vacation and other non-equity based employee benefit plans, to substantially the
same extent as employees of Veeco in similar positions and at similar grade
levels. Nothing in this Section 5.06 or elsewhere in this Merger Agreement shall
be construed to create a right in any employee to employment with Veeco, the
Surviving Corporation or any other Subsidiary of Veeco and, subject to any other
binding agreement between an employee and Veeco, the Surviving Corporation or
any other Subsidiary of Veeco, the employment of each Continuing Employee shall
be "at will" employment.
5.07 INDEMNIFICATION OF OFFICERS AND DIRECTORS. (a) All rights to
indemnification existing in favor of those Persons who are directors and
officers of the Company as of the date of this Merger Agreement (the
"INDEMNIFIED PERSONS") for acts and omissions occurring prior to the Effective
Time, as provided in the Company's By-Laws (as in effect as of the date of this
Merger Agreement), shall survive the Merger and shall be observed by the
Surviving Corporation to the fullest extent permitted by Delaware law for a
period of six years from the Effective Time.
(b) From the Effective Time until the sixth anniversary of the
Effective Time, the Surviving Corporation shall maintain in effect, for the
benefit of the Indemnified Persons, with respect to acts or omissions occurring
prior to the Effective Time, the existing policy of directors' and officers'
liability insurance maintained by the Company as of the date of this Merger
Agreement in the form disclosed by the Company to Veeco prior to the date of
this Merger Agreement (the "EXISTING POLICY"); PROVIDED, HOWEVER, that (i) the
Surviving Corporation may in its sole discretion determine to substitute for the
Existing Policy a policy or policies of comparable coverage, and (ii) the
Surviving Corporation shall not be required to pay annual premiums for the
Existing Policy (or for any such substitute policies) in excess of 150% of the
premium payable by the Company therefor as of the date of this Merger Agreement,
in the aggregate. In the event any future annual
44
premiums for the Existing Policy (or any such substitute policies) exceeds 150%
of the premium payable by the Company therefor as of the date of this Merger
Agreement, in the aggregate, the Surviving Corporation shall be entitled to
reduce the amount of coverage of the Existing Policy (or any such substitute
policies) to the amount of coverage that can be obtained for a premium equal to
150% of the premium payable by the Company therefor as of the date of this
Merger Agreement.
5.08 POOLING OF INTERESTS. Each of the Company and Veeco agrees,
and agrees to cause their respective Subsidiaries, (a) not to take any action
after the date of this Merger Agreement that would adversely affect the ability
of Veeco to account for the Merger as a "pooling of interests," and (b) to use
all reasonable efforts to attempt to ensure that none of its Affiliates take any
action that could adversely affect the ability of Veeco to account for the
Merger as a "pooling of interests." The Company agrees to provide to
PricewaterhouseCoopers LLP, independent public accountants to the Company, such
letters as shall be reasonably requested by PricewaterhouseCoopers LLP in
connection with the letters referred to in Section 6.03 hereof. Veeco agrees to
provide to Ernst & Young LLP, independent public accountants to Veeco, such
letters as shall be reasonably requested by Ernst & Young LLP, in connection
with the letters referred to in Section 6.03 hereof.
5.09 ENVIRONMENTAL TRANSFER LAWS. The Company shall comply in a
timely fashion with the material requirements of all Environmental Laws
applicable to the transfer of the business of the Acquired Corporations and any
licenses associated with the operation of the business of the Acquired
Corporations. The Company shall complete all necessary disclosure statements
required by Environmental Laws applicable to the transfer of the business of the
Acquired Corporations and provide the statements to Veeco prior to Closing, all
in proper form for appropriate recordation and filing.
5.10 TAX MATTERS. (a) Between the date hereof and the Closing
Date, the Company shall file or cause to be filed on a timely basis all Tax
Returns that are required to be filed by it or by any of the other Acquired
Corporations, either separately or as part of an affiliated group of
corporations, pursuant to the Laws of each Governmental Authority with taxing
power over it or any of the other Acquired Corporations or any of the Acquired
Corporations' assets and businesses. Each of such Tax Returns will be true,
correct and complete in all material respects when filed. Neither the Company
nor any Acquired Corporation shall make any election or file any amended Tax
Return reflecting any position that could result in a material adverse Tax
consequence to Veeco, Acquisition or the Company or any Acquired Corporation for
any period beginning on or after the Effective Time. All transfer, documentary,
gross receipts, sales, use and property gains Taxes, and liabilities similar in
nature, imposed or payable on the sale or transfer of the Acquired Corporations'
business pursuant to this Merger Agreement or the consummation of any of the
transactions contemplated hereby shall be paid by the Company. The Company shall
timely file all required transfer Tax Returns and/or notices of the transfer of
the Acquired Corporations' business with the appropriate Governmental Authority.
Veeco shall cooperate with the Company in connection with the matters
contemplated by this Section 5.10(a), which cooperation shall include, without
limitation, providing information and executing and delivering documents, in
connection with the Company's or any of the Acquired Corporations' obligations
under this Section 5.10(a).
45
(b) At or prior to the filing of the Form S-4 Registration
Statement, the Company and Veeco shall execute and deliver to Xxxx, Scholer,
Fierman, Xxxx & Handler, LLP, counsel to Veeco, and to Xxxxx Xxxxxxxxxx LLP,
counsel to the Company, tax representation letters in form and substance
satisfactory to such counsel. Veeco, Acquisition and the Company shall each
confirm to Xxxx, Scholer, Fierman, Xxxx & Handler, LLP and to Xxxxx Xxxxxxxxxx
LLP the accuracy and completeness as of the Effective Time of the tax
representation letters delivered pursuant to the immediately preceding sentence.
Following delivery of the tax representation letters contemplated pursuant to
the first sentence of this Section 5.10(b), each of Veeco and the Company shall
use its reasonable efforts to cause Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
to deliver to Violin, and Xxxxx Xxxxxxxxxx LLP to deliver to the Company, a tax
opinion to the effect that the Merger will qualify as a reorganization as
described in Section 368(a) of the Code and such other matters as are
appropriate for description, and inclusion as exhibits, in the S-4 Registration
Statement and the Joint Proxy Statement, such opinions to be substantially
similar in substance. In rendering such opinions, each of such counsel shall be
entitled to rely on the tax representation letters referred to in this Section
5.10(b).
(c) None of Veeco, Acquisition or the Company (i) have
knowledge of any action or failure to act, and/or (ii) will take or fail to take
any action prior or subsequent to the Effective Time that could reasonably be
expected to cause the Merger to fail to qualify as a reorganization as described
in Section 368(a) of the Code with respect to which no gain or loss will be
recognized by a stockholder of the Company on the conversion of Company Common
Stock into Veeco Shares pursuant to the Merger (except with respect to any cash
received in lieu of a fractional share).
5.11 LETTERS OF THE PARTIES' ACCOUNTANTS. (a) The Company shall
use all reasonable efforts to cause to be delivered to Veeco a letter of
PricewaterhouseCoopers LLP, independent public accountant for the Company, dated
no more than two business days before the date on which the Form S-4
Registration Statement becomes effective (and reasonably satisfactory in form
and substance to Veeco), that is customary in scope and substance for letters
delivered by independent public accountants in connection with registration
statements similar to the Form S-4 Registration Statement.
(b) Veeco shall use all reasonable efforts to cause to be
delivered to the Company a letter of Ernst & Young LLP, independent public
accountant for Veeco, dated no more than two business days before the date on
which the Form S-4 Registration Statement becomes effective (and reasonably
satisfactory in form and substance to the Company), that is customary in scope
and substance for letters delivered by independent public accountants in
connection with registration statements similar to the Form S-4 Registration
Statement.
5.12 LISTING. Veeco shall use reasonable efforts to cause the
Veeco Shares being issued in the Merger to be approved for listing (subject to
notice of issuance) on the Nasdaq National Market.
46
5.13 BOARD OF DIRECTORS; XXXXXXX EMPLOYMENT AGREEMENT. (a) Prior
to the Effective Time, Veeco shall appoint, as of the Effective Time, Xxxxxxxxx
Xxxxxxx and Xxxx Xxxxxxxx (or, in lieu of Xx. Xxxxxxxx, an individual designated
by the Company and mutually acceptable to Veeco and the Company), to become
directors of Veeco, and to cause Xxxxxxxxx Xxxxxxx to be appointed the President
of Veeco, reporting to the Chairman and Chief Executive Officer of Veeco
pursuant to an Employment Agreement, dated the Closing Date, in the form
attached as EXHIBIT D hereto (the "XXXXXXX EMPLOYMENT AGREEMENT"), which shall
be executed and delivered by Veeco at or prior to the Effective Time.
(b) Between the date hereof and the Effective Time, Veeco and
Acquisition shall take such actions as may be reasonably necessary to cause the
officers of Acquisition immediately prior to the Effective Time to be the
persons (holding the positions) set forth on SCHEDULE F hereto.
5.14 NOTICE OF BREACH; DISCLOSURE. Each party shall promptly
notify the other of (i) any event, condition or circumstance of which such party
becomes aware after the date hereof and prior to the Closing Date that would
constitute a violation or breach of this Merger Agreement (or a breach of any
representation or warranty contained herein) or, if the same were to continue to
exist as of the Closing Date, would constitute the non-satisfaction of any of
the conditions set forth in Article VI, VII or VIII hereof, as the case may be
or (ii) any event, occurrence, transaction, or other item of which such party
becomes aware which would have been required to have been disclosed on any
Schedule or statement delivered hereunder had such event, occurrence,
transaction or item existed as of the date hereof. The disclosure of any matter
as provided in this Section shall not affect the right of any party to terminate
this Merger Agreement under Section 9.01(g) or 9.01(h) on the basis thereof.
5.15 PAYMENT OF INDEBTEDNESS BY AFFILIATES. The Company shall
cause all indebtedness owed to any Acquired Corporation by any Company Affiliate
to be paid in full prior to Closing, other than advances of, or reimbursements
for, expenses incurred or anticipated to be incurred by officers, directors and
employees of the Acquired Corporations in the ordinary course of business and in
compliance with the relevant Acquired Corporation's policy, if any, relating
thereto.
5.16 NO SOLICITATION -- COMPANY. (a) The Company shall not
directly or indirectly, and shall not authorize or permit any of the other
Acquired Corporations or any Representative of any of the Acquired Corporations
directly or indirectly, to, (i) solicit, initiate, encourage, induce or
facilitate the making, submission or announcement of any Company Acquisition
Proposal or take any action that could reasonably be expected to lead to a
Company Acquisition Proposal, (ii) furnish any information regarding any of the
Acquired Corporations to any Person in connection with or in response to a
Company Acquisition Proposal or an inquiry or indication of interest that could
lead to a Company Acquisition Proposal, (iii) engage in discussions or
negotiations with any Person with respect to any Company Acquisition Proposal,
(iv) approve, endorse or recommend any Company Acquisition Proposal or (v) enter
into any letter of intent or similar document or any Contract contemplating or
otherwise relating to any Company Acquisition
47
Transaction; PROVIDED, HOWEVER, that prior to the adoption of this Merger
Agreement by the Required Company Stockholder Vote, this Section 5.16(a) shall
not prohibit the Company from engaging in discussions and taking such other
actions as may be reasonably required for the purpose of becoming informed with
respect to a BONA FIDE unsolicited written Company Acquisition Proposal that is
submitted to the Company (and not withdrawn) if the Board of Directors of the
Company reasonably determines in good faith after due consideration that such
Company Acquisition Proposal would reasonably be likely to result in a Superior
Company Proposal and (1) neither the Company nor any Representative of any of
the Acquired Corporations shall have violated any of the restrictions set forth
in this Section 5.16, (2) the Board of Directors of the Company concludes in
good faith that such action is required in order for the Board of Directors of
the Company to comply with its fiduciary obligations to the Company's
stockholders under applicable Law, after having taken into account, among other
relevant considerations, the written advice of its outside legal counsel, and
(3) prior to any such discussion or other action the Company receives from such
Person an executed confidentiality agreement containing customary limitations on
the use and disclosure of all nonpublic written and oral information furnished
to such Person by or on behalf of the Company and containing "standstill"
provisions no less favorable to the Company than the "standstill" provisions
contained in that certain Mutual Confidentiality Agreement, dated February 10,
2000, between the Company and Veeco. Without limiting the generality of the
foregoing, the Company acknowledges and agrees that any violation of any of the
restrictions set forth in the preceding sentence by any Representative of any of
the Acquired Corporations, whether or not such Representative is purporting to
act on behalf of any of the Acquired Corporations, shall be deemed to constitute
a breach of this Section 5.16 by the Company.
(b) The Company shall promptly (and in no event later than 24
hours after receipt of any Company Acquisition Proposal, any inquiry or
indication of interest that could lead to a Company Acquisition Proposal or any
request for nonpublic information) advise Veeco orally and in writing of any
Company Acquisition Proposal, any inquiry or indication of interest that could
lead to a Company Acquisition Proposal or any request for nonpublic information
relating to any of the Acquired Corporations (including the identity of the
Person making or submitting such Company Acquisition Proposal, inquiry,
indication of interest or request, and the terms thereof) that is made or
submitted by any Person after the date of this Merger Agreement. The Company
shall keep Veeco fully informed with respect to the status of any such Company
Acquisition Proposal, inquiry, indication of interest or request and any
modification or proposed modification thereto.
(c) On the date hereof, the Company shall immediately cease and
cause to be terminated any existing discussions with any Person that relate to
any Company Acquisition Proposal or Company Acquisition Transaction.
(d) The Company agrees not to release or permit the release of any
Person from, or to waive or permit the waiver of any provision of, any
confidentiality, "standstill" or similar agreement to which any of the Acquired
Corporations is a party, and will use its best efforts to enforce or cause to be
enforced each such agreement at the request of Veeco. The Company also will
promptly request each Person that has executed, within 12 months prior to the
date of this Merger Agreement, a confidentiality agreement in connection with
its consideration of a possible
48
Company Acquisition Transaction or equity investment, to return all confidential
information heretofore furnished to such Person by or on behalf of any of the
Acquired Corporations.
5.17 NO SOLICITATION -- VEECO. (a) Veeco shall not directly or
indirectly, and shall not authorize or permit any Subsidiary of Veeco or any
Representative of Veeco or a Subsidiary thereof, directly or indirectly, to (i)
solicit, initiate, encourage, induce or facilitate the making, submission or
announcement of any Veeco Acquisition Proposal or take any action that could
reasonably be expected to lead to a Veeco Acquisition Proposal, (ii) furnish any
information regarding Veeco to any Person in connection with or in response to a
Veeco Acquisition Proposal or an inquiry or indication of interest that could
lead to a Veeco Acquisition Proposal, (iii) engage in discussions or
negotiations with any Person with respect to any Veeco Acquisition Proposal ,
(iv) approve, endorse or recommend any Veeco Acquisition Proposal or (v) enter
into any letter of intent or similar document or any Contract contemplating or
otherwise relating to any Veeco Acquisition Transaction; PROVIDED, HOWEVER, that
prior to the adoption of this Merger Agreement by the Required Veeco Stockholder
Vote, this Section 5.17(a) shall not prohibit Veeco from engaging in discussions
and taking such other actions as may be reasonably required for the purpose of
becoming informed with respect to a BONA FIDE unsolicited written Veeco
Acquisition Proposal that is submitted to Veeco (and not withdrawn) if the Board
of Directors of Veeco reasonably determines in good faith after due
consideration that such Veeco Acquisition Proposal would reasonably be likely to
result in a Superior Veeco Proposal and (1) neither Veeco nor any Subsidiary of
Veeco or any Representative of Veeco or a Subsidiary of Veeco shall have
violated any of the restrictions set forth in this Section 5.17, and (2) prior
to any such discussion or other action Veeco receives from such Person an
executed confidentiality agreement containing customary limitations on the use
and disclosure of all nonpublic written and oral information furnished to such
Person by or on behalf of Veeco and containing "standstill" provisions no less
favorable to Veeco than the "standstill" provisions contained in that certain
Mutual Confidentiality Agreement, dated February 10, 2000, between the Company
and Veeco. Without limiting the generality of the foregoing, Veeco acknowledges
and agrees that any violation of any of the restrictions set forth in the
preceding sentence by any Representative of Veeco or a Subsidiary thereof,
whether or not such Representative is purporting to act on behalf of any of
Veeco or such Subsidiary thereof, shall be deemed to constitute a breach of this
Section 5.17 by Veeco.
(b) Veeco shall promptly (and in no event later than 24 hours
after receipt of any Veeco Acquisition Proposal, any inquiry or indication of
interest that could lead to a Veeco Acquisition Proposal or any request for
nonpublic information) advise the Company orally and in writing of any Veeco
Acquisition Proposal, any inquiry or indication of interest that could lead to a
Veeco Acquisition Proposal or any request for nonpublic information relating to
Veeco and its Subsidiaries (including the identity of the Person making or
submitting such Veeco Acquisition Proposal, inquiry, indication of interest or
request, and the terms thereof) that is made or submitted by any Person after
the date of this Merger Agreement. Veeco shall keep the Company fully informed
with respect to the status of any such Veeco Acquisition Proposal, inquiry,
indication of interest or request and any modification or proposal modification
thereto.
49
(c) On the date hereof, Veeco shall immediately cease and
cause to be terminated any existing discussions with any Person that relate to
any Veeco Acquisition Proposal or Veeco Acquisition Transaction.
(d) Veeco agrees not to release or permit the release of any
Person from, or to waive or permit the waiver of any provision of, any
confidentiality, "standstill" or similar agreement to which Veeco is a party,
and will use its best efforts to enforce or cause to be enforced each such
agreement at the request of the Company. Veeco also will promptly request each
Person that has executed, within 12 months prior to the date of this Merger
Agreement, a confidentiality agreement in connection with its consideration of a
possible Veeco Acquisition Transaction or equity investment, to return all
confidential information heretofore furnished to such Person by or on behalf of
Veeco.
5.18 BLUE SKY LAWS. Veeco shall take such steps as may be
reasonably necessary to comply with the securities and blue sky laws of all
jurisdictions which are applicable to the issuance of Veeco Shares in connection
with the Merger. The Company shall use its reasonable efforts to assist Veeco as
may be necessary to comply with the securities and blue sky laws of all
jurisdictions which are applicable in connection with the issuance of Veeco
Shares in connection with the Merger.
5.19 ADDITIONAL AGREEMENTS. Subject to Section 5.04(b), Veeco and
the Company shall use all reasonable efforts to take, or cause to be taken, all
actions necessary to consummate the Merger and make effective the other
transactions contemplated by this Merger Agreement, as promptly as practicable
following the execution and delivery of this Agreement. Without limiting the
generality of the foregoing, but subject to Section 5.04(b), each party to this
Merger Agreement (i) shall make all filings (if any) and give all notices (if
any) required to be made and given by such party in connection with the Merger
and the other transactions contemplated by this Merger Agreement, (ii) shall use
all reasonable efforts to obtain each Consent (if any) required to be obtained
(pursuant to any applicable Law or Contract, or otherwise) by such party in
connection with the Merger or any of the other transactions contemplated by this
Merger Agreement, and (iii) shall use all reasonable efforts to lift any
restraint, injunction or other legal bar to the Merger. The Company shall
promptly deliver to Veeco a copy of each such filing made, each such notice
given and each such Consent obtained by the Company following the date hereof.
5.20 DISCLOSURE. Veeco and the Company shall consult with each
other before issuing any press release or otherwise making any public statement
with respect to the Merger or any of the other transactions contemplated by this
Merger Agreement. Without limiting the generality of the foregoing, neither
Veeco nor the Company shall, and neither Veeco nor the Company shall permit any
of its Representatives to, make any disclosure regarding the Merger or any of
the other transactions contemplated by this Merger Agreement unless (a) the
other party shall have approved such disclosure or (b) such party shall have
been advised in writing by its outside legal counsel that such disclosure is
required by applicable Law.
5.21 AFFILIATE AGREEMENTS. (a) The Company shall use all
reasonable efforts to cause each Person identified in SCHEDULE C to this Merger
Agreement and each other Person who
50
is or becomes (or may be deemed to be) an Affiliate of the Company (each a
"COMPANY AFFILIATE") to execute and deliver to Veeco, prior to the date of the
mailing of the Joint Proxy Statement to the Company's stockholders, an Affiliate
Agreement in the form of EXHIBIT D hereto (a "COMPANY AFFILIATE AGREEMENT"). To
the fullest extent legally permissible, Veeco Shares and shares of Company
Common Stock beneficially owned by each Affiliate of the Company who has not
provided a signed Company Affiliate Agreement in accordance with this Section
5.21(a) shall not be transferable during any period prior to and after the
Effective Time if, as a result of the transfer during any such period, taking
into account the nature, extent and timing of the transfer and similar transfers
by all other Affiliates of Veeco and the Company, the transfer may, in the
reasonable judgment of the independent accountants to Veeco, prevent Veeco from
accounting for the Merger as a "pooling of interests" in accordance with GAAP,
Accounting Principles Board Opinion No. 16 and all published rules, regulations
and policies of the SEC. To the fullest extent legally permissible, neither
Veeco nor the Company shall register, or allow its transfer agent to register,
on its books any transfer of any shares of Veeco Shares or Company Common Stock
of any Company Affiliate who has not provided a signed Affiliate Agreement in
accordance with this Section 5.21(a).
(b) Veeco shall use all reasonable efforts to cause each
Person identified in SCHEDULE E to this Merger Agreement and each other Person
who is or becomes (or may be deemed to be) an Affiliate of Veeco (each a "VEECO
AFFILIATE") to execute and deliver to Veeco, prior to the date of the mailing of
the Joint Proxy Statement to Veeco's stockholders, an Affiliate Agreement in the
form of EXHIBIT E hereto (a "VEECO AFFILIATE AGREEMENT"). To the fullest extent
legally permissible, Veeco Shares and shares of Company Common Stock
beneficially owned by each Affiliate of Veeco who has not provided a signed
Veeco Affiliate Agreement in accordance with this Section 5.21(b) shall not be
transferable during any period prior to and after the Effective Time if, as a
result of the transfer during any such period, taking into account the nature,
extent and timing of the transfer and similar transfers by all other Affiliates
of Veeco and the Company, the transfer may, in the reasonable judgment of the
independent accountants to Veeco, prevent Veeco from accounting for the Merger
as a "pooling of interests" in accordance with GAAP, Accounting Principles Board
Opinion No. 16 and all published rules, regulations and policies of the SEC. To
the fullest extent legally permissible, neither Veeco nor the Company shall
register, or allow its transfer agent to register, on its books any transfer of
any shares of Veeco Shares or Company Common Stock of any Veeco Affiliate who
has not provided a signed Veeco Affiliate Agreement in accordance with this
Section 5.21(b).
5.22 REGISTRATION STATEMENT; JOINT PROXY STATEMENT. As promptly as
practicable after the date of this Merger Agreement, and in any event, within
twenty-five days thereafter, Veeco and the Company shall prepare and cause to be
filed with the SEC the Joint Proxy Statement and Veeco shall prepare and cause
to be filed with the SEC the Form S-4 Registration Statement, in which the Joint
Proxy Statement will be included as a prospectus. Each of Veeco and the Company
shall use all reasonable efforts to cause the Form S-4 Registration Statement
and the Joint Proxy Statement to comply with the rules and regulations
promulgated by the SEC, to respond promptly to any comments of the SEC or its
staff and to have the Form S-4 Registration Statement declared effective under
the Securities Act as promptly as practicable after it is filed with the SEC.
Veeco will use all reasonable efforts to cause the Joint Proxy Statement to be
mailed to Veeco's stockholders, and the Company will use all reasonable efforts
to cause the Joint Proxy Statement to
51
be mailed to the Company's stockholders, as promptly as practicable after the
Form S-4 Registration Statement is declared effective under the Securities Act.
The Company and Veeco shall promptly furnish to one another all information
concerning the Acquired Corporations and the Company's stockholders and Veeco
and Veeco's stockholders that may be required or reasonably requested in
connection with any action contemplated by this Section 5.22. If any event
relating to any of the Acquired Corporations occurs, or if the Company becomes
aware of any information, that should be disclosed in an amendment or supplement
to the Form S-4 Registration Statement or the Joint Proxy Statement, then the
Company shall promptly inform Veeco thereof and shall cooperate with Veeco in
filing such amendment or supplement with the SEC and, if appropriate, in mailing
such amendment or supplement to the stockholders of the Company. If any event
relating to Veeco occurs, or if Veeco becomes aware of any information, that
should be disclosed in an amendment or supplement to the Form S-4 Registration
Statement or the Joint Proxy Statement, then Veeco shall promptly inform the
Company thereof and shall cooperate with the Company in filing such amendment or
supplement with the SEC and, if appropriate, in mailing such amendment or
supplement to the stockholders of Veeco.
5.23 COMPANY STOCKHOLDERS' MEETING. (a) The Company shall take all
action necessary under all applicable Laws to call, give notice of and hold a
meeting of the holders of Company Common Stock to vote on a proposal to adopt
this Merger Agreement (the "COMPANY STOCKHOLDERS' MEETING"). The Company
Stockholders' Meeting shall be held (on a date selected by Veeco) as promptly as
practicable after the Form S-4 Registration Statement is declared effective
under the Securities Act. The Company shall ensure that all proxies solicited in
connection with the Company Stockholders' Meeting are solicited in compliance
with all applicable Laws.
(b) Subject to Section 5.23(c): (i) the Joint Proxy Statement
shall include a statement to the effect that the Board of Directors of the
Company unanimously recommends that the Company's stockholders vote to adopt
this Merger Agreement at the Company Stockholders' Meeting (such unanimous
recommendation of the Company's Board of Directors that the Company's
stockholders vote to adopt this Merger Agreement being referred to as the
"COMPANY BOARD RECOMMENDATION"); and (ii) the Company Board Recommendation shall
not be withdrawn or modified in a manner adverse to Veeco, and no resolution by
the Board of Directors of the Company or any committee thereof to withdraw or
modify the Company Board Recommendation in a manner adverse to Veeco shall be
adopted or proposed.
(c) Notwithstanding anything to the contrary contained in
Section 5.23(b), at any time prior to the adoption of this Merger Agreement by
the Required Company Stockholder Vote, the Company Board Recommendation may be
withdrawn or modified in a manner adverse to Veeco if: (i) a proposal to acquire
(by merger or otherwise) all of the outstanding shares of Company Common Stock
is made to the Company and is not withdrawn; (ii) the Company provides Veeco
with at least five business days' prior written notice of any meeting of the
Company's Board of Directors at which such Board of Directors will consider and
determine whether such offer is a Superior Proposal; (iii) the Company's Board
of Directors determines in good faith that such offer constitutes a Superior
Proposal (taking into account, among other relevant considerations, a written
opinion of an independent financial advisor of nationally recognized
reputation); (iv) the Company's Board of Directors determines in good faith,
after having taken into account, among other relevant
52
considerations, the written advice of the Company's outside legal counsel, that,
in light of such Superior Proposal, the withdrawal or modification of the
Company Board Recommendation is required in order for the Company's Board of
Directors to comply with its fiduciary obligations to the Company's stockholders
under applicable Law; and (v) neither the Company nor any of its Representatives
shall have violated any of the restrictions set forth in Section 5.16.
(d) The Company's obligation to call, give notice of and hold
the Company Stockholders' Meeting in accordance with Section 5.23(a) hereof
shall not be limited or otherwise affected by the commencement, disclosure,
announcement or submission of any Superior Proposal or other Acquisition
Proposal, or by any withdrawal or modification of the Company Board
Recommendation.
5.24 VEECO STOCKHOLDERS' MEETING. (a) Veeco shall take all action
necessary under all applicable Law to call, give notice of and hold a meeting of
the holders of Veeco Shares to vote on the issuance of Veeco Shares in the
Merger (the "VEECO STOCKHOLDERS' MEETING"). The Veeco Stockholders' Meeting will
be held on the date of the Company Stockholders' Meeting or as promptly
thereafter as is practicable. Veeco shall ensure that all proxies solicited in
connection with the Veeco Stockholders' Meeting are solicited in compliance with
all applicable Laws.
(b) Subject to Section 5.24(c), the Joint Proxy Statement
shall include a statement to the effect that the Board of Directors of Veeco
unanimously recommends that Veeco's stockholders vote to approve the issuance of
Veeco Shares in the Merger (such unanimous recommendation of Veeco's Board of
Directors that Veeco stockholders vote to approve the issuance of Veeco Shares
in the Merger being referred to as the "VEECO BOARD RECOMMENDATION"). The Veeco
Board Recommendation shall not be withdrawn or modified in a manner adverse to
the Company, and no resolution by the Board of Directors of Veeco or any
committee thereof to withdraw or modify the Veeco Board Recommendation in a
manner adverse to the Company shall be adopted or proposed.
(c) Notwithstanding anything to the contrary contained in
Section 5.24(b), at any time prior to the adoption of this Merger Agreement by
the Required Veeco Stockholder Vote, the Veeco Board Recommendation may be
withdrawn or modified in a manner adverse to the Company if: (i) a proposal to
acquire (by merger or otherwise) all of the outstanding Veeco Shares is made to
Veeco and is not withdrawn; (ii) Veeco provides the Company with at least five
business days' prior written notice of any meeting of Veeco's Board of Directors
at which such Board of Directors will consider and determine whether such offer
is a Superior Veeco Proposal; (iii) Veeco's Board of Directors determines in
good faith that such offer constitutes a Superior Veeco Proposal (taking into
account, among other relevant considerations, a written opinion of an
independent financial advisor of nationally recognized reputation); and (iv)
neither Veeco nor any of its Representatives shall have violated any of the
restrictions set forth in Section 5.17.
(d) Veeco's obligation to call, give notice of and hold Veeco
Stockholders' Meeting in accordance with Section 5.24(a) hereof shall not be
limited or otherwise affected by the commencement, disclosure, announcement or
submission of any Superior Veeco
53
Proposal or other Veeco Acquisition Proposal, or by any withdrawal or
modification of the Veeco Board Recommendation.
VI. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES .
The obligations of the parties to enter into and complete the
Closing are conditioned upon the satisfaction or waiver in writing by the
parties, on or before the Closing Date, of the following conditions:
6.01 EFFECTIVENESS OF REGISTRATION STATEMENT. The Form S-4
Registration Statement shall have become effective in accordance with the
provisions of the Securities Act, and no stop order shall have been issued, and
no proceeding for that purpose shall have been initiated or be Threatened, by
the SEC with respect to the Form S-4 Registration Statement.
6.02 STOCKHOLDER APPROVAL. This Merger Agreement shall have been
duly adopted by the Required Company Stockholder Vote and the issuance of Veeco
Shares in the Merger shall have been duly approved by the Required Veeco
Shareholder Vote.
6.03 POOLING LETTERS. The Company and Veeco shall have received
(a) a letter from PricewaterhouseCoopers, LLP dated as of the
Closing Date and addressed to each of Veeco, the Company and Ernst & Young LLP,
reasonably satisfactory in form and substance to Veeco and Ernst & Young LLP, to
the effect that, after reasonable investigation, PricewaterhouseCoopers, LLP is
not aware of any fact concerning the Company or any of the Company's
stockholders or affiliates that could preclude Veeco from accounting for the
Merger as a "pooling of interests" in accordance with GAAP, Accounting
Principles Board Opinion No. 16 and all published rules, regulations and
policies of the SEC; and
(b) a written opinion from Ernst & Young LLP, dated as of the
Closing Date and addressed to Veeco, reasonably satisfactory in form and
substance to Veeco and the Company, to the effect that the Merger can be
accounted for as a "pooling of interests".
6.04 LITIGATION. No suit, action or other Legal Proceeding by any
domestic Governmental Authority, or injunction or final judgment shall be
pending on the Closing Date before any court or Governmental Authority in which
it is sought to restrain or prohibit or to obtain damages or other relief in
connection with this Merger Agreement or the consummation of the transactions
contemplated hereby.
6.05 HSR ACT. (a) The waiting period applicable to the
consummation of the Merger under the HSR Act (as the same may be extended by the
agreement of Veeco or the Company or otherwise) shall have expired or been
terminated, and (b) any similar waiting period under any applicable foreign
antitrust law or regulation to the consummation of the Merger shall have expired
or been terminated, and any Consent required under any applicable foreign
antitrust law or regulation shall have been obtained, except where the failure
for such waiting period to have
54
expired or been terminated or for such Consent to have been obtained would not
be material to either Veeco or the Company.
6.06 LISTING. The Veeco Shares to be issued in the Merger shall
have been approved for listing (subject to notice of issuance) on the Nasdaq
National Market.
VII. CONDITIONS PRECEDENT TO VEECO'S AND ACQUISITION'S
OBLIGATIONS.
The obligations of Veeco and Acquisition to enter into and
complete the Closing are conditioned upon the satisfaction or waiver in writing
by Veeco (on behalf of Veeco and Acquisition), on or before the Closing Date, of
the following conditions:
7.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of the Company contained in this Merger Agreement shall be accurate
in all respects as of the Closing Date as if made on and as of the Closing Date,
except that any inaccuracies in such representations and warranties will be
disregarded if the circumstances giving rise to such inaccuracies do not
constitute, and would not reasonably be expected to have, a Material Adverse
Effect on the Company; PROVIDED, HOWEVER that, for purposes of determining the
accuracy of such representations and warranties, (i) all "Material Adverse
Effect" qualifications and other materiality qualifications, and any similar
qualifications, contained in such representations and warranties shall be
disregarded and (ii) any update of or modification to the Company Disclosure
Schedule made or purported to have been made after the date of this Merger
Agreement shall be disregarded.
7.02 PERFORMANCE OF COVENANTS. The Company shall have performed
and complied in all material respects with all of the agreements, covenants and
conditions required by this Merger Agreement to be performed and complied with
by it prior to or on the Closing Date.
7.03 CONSENTS. All Consents required to be obtained in connection
with the Merger and the other transactions contemplated by this Merger Agreement
(including the Consents identified in SCHEDULE 7.03 to the Company Disclosure
Schedule) shall have been obtained and shall be in full force and effect other
than such Consents, the failure of which to be obtained would not result,
individually or in the aggregate in a Material Adverse Effect on the Company or
Veeco.
7.04 AGREEMENTS AND DOCUMENTS. Veeco and Acquisition shall have
received the following agreements and documents, each of which shall be in full
force and effect:
(a) Company Affiliate Agreements executed by each Company
Affiliate;
(b) the Xxxxxxx Employment Agreement executed by Xxxxxxxxx
Xxxxxxx;
(c) a legal opinion of Xxxx, Scholer, Fierman, Xxxx &
Handler, LLP, counsel to Veeco, dated as of the Closing Date and addressed to
Veeco, confirming its opinion delivered pursuant to Section 5.10(b) (it being
understood that in rendering such opinion, Xxxx, Scholer, Fierman, Xxxx &
Handler, LLP may rely upon tax representation letters, dated the Closing
55
Date, substantially identical to the tax representation letters referred to in
Section 5.10(b) modified to reflect changes in law, if any, and such other
matters as Xxxx, Scholer, Fierman, Xxxx & Handler, LLP and Xxxxx Xxxxxxxxxx LLP
may reasonably request);
(d) a certificate, dated the Closing Date, executed on behalf
of the Company by its Chief Executive Officer, confirming that the conditions
set forth in Sections 7.01 and 7.02 hereof have been duly satisfied;
7.05 MATERIAL ADVERSE EFFECT. There shall not have been any
Material Adverse Effect with respect to the Company from the date hereof to the
Closing Date, nor shall there exist any condition which could reasonably be
expected to result in such a Material Adverse Effect.
7.06 REGISTRATION RIGHTS AGREEMENT. The Company shall have
informed each party to the Registration Rights Agreement, by delivery thereto of
a writing in form and substance reasonably satisfactory to Veeco, that the
Company believes that, upon the Closing such parties will no longer be entitled
to the rights provided for in the Registration Rights Agreement.
VIII. CONDITIONS PRECEDENT TO OBLIGATIONS OF THE COMPANY.
The Company's obligation to enter into and complete the
Closing is conditioned upon the satisfaction or waiver in writing by the
Company, on or before the Closing Date, of all of the following conditions:
8.01 REPRESENTATIONS AND WARRANTIES. The representations and
warranties of Veeco and Acquisition contained in this Merger Agreement shall be
accurate in all respects as of the Closing Date as if made on and as of the
Closing Date, except that any inaccuracies in such representations and
warranties will be disregarded if the circumstances giving rise to such
inaccuracies do not constitute, and would not reasonably be expected have, a
Material Adverse Effect on Veeco; PROVIDED, HOWEVER, that, for purposes of
determining the accuracy of such representations and warranties as of the
Closing Date, (i) all "Material Adverse Effect" qualifications and other
materiality qualifications, any similar qualifications, contained in such
representations and warranties shall be disregarded and (ii) any update of or
modification to the Veeco Disclosure Schedule hereto made or purported to have
been made after the date of this Merger Agreement shall be disregarded.
8.02 PERFORMANCE OF COVENANTS. Each of Veeco and Acquisition
shall have performed and complied in all material respects with all of the
agreements, covenants and conditions required by this Merger Agreement to be
performed and complied with by them prior to or on the Closing Date.
8.03 CONSENTS AND APPROVALS. All Consents or approvals of
Governmental Authorities required to be obtained in connection with the Merger
and the transactions contemplated by this Merger Agreement shall have been
obtained other than those Consents or approvals of Governmental Authorities, the
failure of which to obtain would not result, individually or in the aggregate,
in a Material Adverse Effect on Veeco.
56
8.04 MATERIAL ADVERSE EFFECT. There shall not have been any
Material Adverse Effect with respect to Veeco from the date hereof to the
Closing Date, nor shall there exist any condition which could reasonably be
expected to result in such a Material Adverse Effect.
8.05 DOCUMENTS. The Company shall have received the following
documents:
(a) a legal opinion of Xxxxx Xxxxxxxxxx LLP, counsel to the
Company, dated as of the Closing Date, confirming its opinion delivered pursuant
to Section 5.10(b) (it being understood that in rendering such opinion, Xxxxx
Xxxxxxxxxx LLP may rely upon tax representation letters dated as of the Closing
Date, and addressed to the Company substantially identical to the tax
representation letters referred to in Section 5.10(b) modified to reflect
changes in law, if any, and such other matters as Xxxx, Scholer, Fierman, Xxxx &
Handler, LLP and Xxxxx Xxxxxxxxxx LLP may reasonably request),
(b) a certificate executed on behalf of Veeco by an executive
officer of Veeco, confirming that conditions set forth in Sections 8.01 and 8.02
hereof have been duly satisfied, and
(c) Veeco Affiliate Agreements executed by each Veeco
Affiliate.
IX. TERMINATION.
9.01 TERMINATION. This Merger Agreement may be terminated
prior to the Effective Time (whether before or after adoption of this Merger
Agreement by the Company's stockholders and whether before or after approval of
the issuance of Veeco Shares in the Merger by Veeco's stockholders):
(a) by mutual written consent of Veeco and the Company;
(b) by either Veeco or the Company if the Merger shall not
have been consummated by August 31, 2000 or, if later, the day following the
last day of any cure period under Section 9.01(g) or 9.01(h) (unless the failure
to consummate the Merger is attributable to a failure on the part of the party
seeking to terminate this Merger Agreement to perform any material obligation
required to be performed by such party at or prior to the Effective Time);
(c) by either Veeco or the Company if (i) a court of competent
jurisdiction or other Governmental Authority shall have issued a final and
nonappealable order, decree or ruling, or shall have taken any other action,
having the effect of permanently restraining, enjoining or otherwise prohibiting
the Merger or (ii) if a suit or action by any domestic Governmental Authority
shall be pending, in which it is sought to restrain or prohibit or to obtain
damages in connection with, this Merger Agreement or the consummation of the
transactions contemplated hereby;
(d) by either Veeco or the Company if (i) the Company
Stockholders' Meeting (including any adjournments and postponements thereof)
shall have been held and
57
completed and the Company's stockholders shall have taken a final vote on a
proposal to adopt this Merger Agreement, and (ii) this Merger Agreement shall
not have been adopted at such meeting by the Required Company Stockholder Vote
(and shall not have been adopted at any adjournment or postponement thereof);
PROVIDED, HOWEVER, that (A) a party shall not be permitted to terminate this
Merger Agreement pursuant to this Section 9.01(d) if the failure to obtain such
stockholder approval is attributable to a failure on the part of such party to
perform any material obligation required to be performed by such party at or
prior to the Effective Time, and (B) the Company shall not be permitted to
terminate this Merger Agreement pursuant to this Section 9.01(d) unless the
Company shall have made the payment required to be made to Veeco pursuant to
Section 9.03(a) and shall have paid to Veeco any fee required to be paid to
Veeco pursuant to Section 9.03(b);
(e) by either Veeco or the Company if (i) the Veeco
Stockholders' Meeting (including any adjournments and postponements thereof)
shall have been held and completed and Veeco's stockholders shall have taken a
final vote on the issuance of Veeco Shares in the Merger, and (ii) the issuance
of Veeco Shares in the Merger shall not have been approved at such meeting (and
shall not have been approved at any adjournment or postponement thereof) by the
Required Veeco Stockholder Vote; PROVIDED, HOWEVER, that (A) a party shall not
be permitted to terminate this Agreement pursuant to this Section 9.01(e) if the
failure to obtain such stockholder vote is attributable to a failure on the part
of the party seeking to terminate this Merger Agreement to perform any material
obligation required to be performed by such party at or prior to the Effective
Time, and (B) Veeco shall not be permitted to terminate this Merger Agreement
pursuant to this Section 9.01(e) unless parent shall have made the payment
required to be made to the Company pursuant to Section 9.03(a);
(f) by Veeco (at any time prior to the adoption of the Merger
Agreement by the Required Company Stockholder Vote) if a Company Triggering
Event shall have occurred;
(g) by Veeco if (i) any of the Company's representations and
warranties contained in this Merger Agreement shall be inaccurate as of the date
of this Merger Agreement, or shall have become inaccurate as of a date
subsequent to the date of this Merger Agreement (as if made on such subsequent
date) (and such breach, if capable of cure, has not been cured within fifteen
days after notice thereof), such that the condition set forth in Section 7.01
would not be satisfied, or (ii) any of the Company's covenants contained in this
Merger Agreement shall have been breached (and any such breach shall not have
been cured within fifteen days after notice thereof) such that the condition set
forth in Section 7.02 would not be satisfied;
(h) by the Company if (i) any of Veeco's representations and
warranties contained in this Merger Agreement shall be inaccurate as of the date
of this Merger Agreement, or shall have become inaccurate as of a date
subsequent to the date of this Merger Agreement (as if made on such subsequent
date) (and such breach, if capable of cure, has not been cured within fifteen
days after notice thereof), such that the condition set forth in Section 8.01
would not be satisfied, or (ii) if any of Veeco's covenants contained in this
Merger Agreement shall have been breached (and any such breach shall not have
been cured within fifteen days after notice thereof) such that the condition set
forth in Section 8.02 would not be satisfied;
58
(i) (x) by Veeco if, there shall have been any Incurable
Material Adverse Effect (as defined) with respect to the Company from the date
hereof to the Closing Date or there shall exist any condition which could
reasonably be expected to result in such an Incurable Material Adverse Effect
(as defined); or (y) by the Company if from the date hereof to the Closing Date,
there shall have been any Incurable Material Adverse Effect (as defined) with
respect to Veeco from the date hereof to the Closing Date or there shall exist
any condition that could reasonably be expected to result in such an Incurable
Material Adverse Effect (as defined); or
(j) by the Company (at any time prior to the adoption of this
Merger Agreement by the Required Company Stockholder Vote) if a Veeco Triggering
Event shall have occurred.
(k) by Veeco in the event of a Superior Veeco Proposal.
As used in this Section 9.01, an "INCURABLE MATERIAL ADVERSE
EFFECT" shall mean a Material Adverse Effect on the Company or Veeco (as
applicable), which Material Adverse Effect is not reasonably capable of being
cured prior to August 31, 2000.
9.02 EFFECT OF TERMINATION. In the event of the termination of
this Merger Agreement as provided in Section 9.01, this Merger Agreement shall
be of no further force or effect; PROVIDED, HOWEVER, that (i) this Section 9.02,
Section 9.03 and Article 10 shall survive the termination of this Merger
Agreement and shall remain in full force and effect, and (ii) the termination of
this Merger Agreement shall not relieve any party from any liability for any
willful breach of any representation, warranty or covenant contained in this
Merger Agreement.
9.03 EXPENSES; TERMINATION FEES. (a) Except as set forth in this
Section 9.03, all fees and expenses incurred in connection with this Merger
Agreement and the transactions contemplated by this Merger Agreement shall be
paid by the party incurring such expenses, whether or not the Merger is
consummated; PROVIDED, HOWEVER, that: (i) Veeco and the Company shall share
equally all fees and expenses, other than attorneys' fees, incurred in
connection with (A) the filing, printing and mailing of the Form S-4
Registration Statement and the Joint Proxy Statement and any amendments or
supplements thereto and (B) the filing by the parties hereto of the premerger
notification and report forms relating to the Merger under the HSR Act and the
filing of any notice or other document under any applicable foreign antitrust
law or regulation; (ii) if this Merger Agreement is terminated by Veeco pursuant
to Section 9.01(g), then the Company shall make a nonrefundable cash payment to
Veeco, at the time specified in the next sentence, in an amount equal to the
aggregate amount of all fees and reasonable, documented, out-of-pocket expenses
(including with respect to fees, all attorneys' fees, accountants' fees,
financial advisory fees and filing fees) that have been paid or that may become
payable by or on behalf of Veeco in connection with the preparation and
negotiation of this Merger Agreement and otherwise in connection with the
Merger; and (iii) if this Merger Agreement is terminated by the Company pursuant
to Section 9.01(h), then Veeco shall make a nonrefundable cash payment to the
Company, at the time specified in the last sentence of this Section 9.03(a), in
an amount equal to the aggregate amount of all fees and reasonable, documented,
out-of-pocket expenses (including with respect to fees, all attorneys' fees,
accountants fees, financial advisory fees and filing fees) that have been paid
or that may become
59
payable by or on behalf of the Company in connection with the preparation and
negotiation of this Merger Agreement and otherwise in connection with the
Merger. In the case of termination of this Merger Agreement by Veeco pursuant to
Section 9.01(g), the nonrefundable payment referred to in clause "(ii)" of the
proviso to the first sentence of this Section 9.03(a) shall be made by the
Company within two business days after such termination. In the case of
termination of this Merger Agreement by the Company pursuant to Section 9.01(h),
the nonrefundable payment referred to in clause "(iii)" of the proviso to the
first sentence of this Section 9.03(a) shall be paid by Veeco within two
business days afer such termination.
(b) If (i) this Merger Agreement is terminated (A) by Veeco or the
Company pursuant to Section 9.01(d) or (B) by Veeco pursuant to Section 9.01(g)
and at or prior to the time of such termination a Company Acquisition Proposal
shall have been disclosed, announced, commenced, submitted or made, or (C) by
Veeco pursuant to Section 9.01(f) then the Company shall pay to Veeco (in lieu
of any payment required to be made pursuant to Section 9.03(a)), a nonrefundable
fee in the amount of $14,600,000 (the "TERMINATION FEE"). In the case of
termination of this Merger Agreement by the Company pursuant to Section 9.01(d),
the Termination Fee referred to in the preceding sentence shall be paid by the
Company prior to such termination, and in the case of termination of this Merger
Agreement by Veeco pursuant to Section 9.01(d), Section 9.01(f) or Section
9.01(g), the Termination Fee referred to in the preceding sentence shall be paid
by the Company within two business days after such termination.
(c) If this Merger Agreement is terminated by Veeco or the Company
pursuant to Section 9.01(e), then Veeco shall pay to the Company (in lieu of any
payment required to be made pursuant to Section 9.03(a)), a nonrefundable fee in
the amount of $4,000,000; provided, however, that if this Merger Agreement is
terminated by Veeco or the Company pursuant to Section 9.01(e), and at or prior
to the time of such termination, a Veeco Acquisition Proposal shall have been
disclosed, announced, commenced, submitted or made, then Veeco shall pay to the
Company (in lieu of any payment required to be made pursuant to Section 9.03(a)
and in lieu of the $4,000,000 payment referred to earlier in this sentence) the
Termination Fee. If this Merger Agreement is terminated by (A) Veeco pursuant to
Section 9.01(k), or (B) by the Company pursuant to Section 9.01(j), then Veeco
will pay to the Company (in lieu of any payment required to be made pursuant to
Section 9.03(a)), the Termination Fee. In the case of termination of this Merger
Agreement by Veeco pursuant to Section 9.01(e), the $4,000,000 fee referred to
in this Section 9.03(c) or the Termination Fee (as applicable) shall be paid by
Veeco prior to such termination, and in the case of termination of this Merger
Agreement by the Company pursuant to Section 9.01(e), such $4,000,000 fee or the
Termination Fee (as applicable) shall be paid by Veeco within two business days
after such termination. In the case of termination of this Merger Agreement by
Veeco pursuant to Section 9.01(k), the Termination Fee shall be paid by Veeco
prior to such termination. In the case of termination of this Merger Agreement
pursuant to Section 9.01(j), the Termination Fee shall be paid by Veeco within
two business days after such termination.
60
X. MISCELLANEOUS.
10.01 SUCCESSORS. This Merger Agreement shall be binding upon and
shall inure to the benefit of the parties hereto and their respective
successors and permitted assigns.
10.02 AMENDMENT. This Merger Agreement may be amended with the
approval of the respective Boards of Directors of the Company and Veeco at any
time (whether before or after adoption of this Merger Agreement by the
stockholders of the Company and whether before or after approval of the issuance
of Veeco Shares in the Merger by Veeco's stockholders); PROVIDED, HOWEVER, that
(i) after any such adoption of this Merger Agreement by the Company's
stockholders, no amendment shall be made which by Law requires further approval
of the stockholders of the Company without the further approval of such
stockholders, and (ii) after any such approval of the issuance of Veeco Shares
in the Merger by Veeco's stockholders, no amendment shall be made which by Law
or NASD regulation requires further approval of Veeco's stockholders without the
further approval of such stockholders. This Merger Agreement may not be amended
except by an instrument in writing signed on behalf of each of the parties
hereto.
10.03 WAIVER. (a) No failure on the part of any party to exercise
any power, right, privilege or remedy under this Merger Agreement, and no delay
on the part of any party in exercising any power, right, privilege or remedy
under this Merger Agreement, shall operate as a waiver of such power, right,
privilege or remedy; and no single or partial exercise of any such power, right,
privilege or remedy shall preclude any other or further exercise thereof or of
any other power, right, privilege or remedy.
(b) No party shall be deemed to have waived any claim arising
out of this Merger Agreement, or any power, right, privilege or remedy under
this Merger Agreement, unless the waiver of such claim, power, right, privilege
or remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such party; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
10.04 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES; SURVIVAL OF
TAX COMMENTS. None of the representations and warranties contained in this
Merger Agreement or in any certificate delivered pursuant to this Merger
Agreement shall survive the Merger. Notwithstanding any other provision of this
Merger Agreement, the covenants contained in Section 5.10(c) shall survive until
the termination or expiration of the relevant statute of limitations.
10.05 ENTIRE AGREEMENT; COUNTERPARTS. This Merger Agreement
(together with the agreements, certificates and other documents referred to
herein, the Schedules and Exhibits hereto and the Company Disclosure Schedule
and the Veeco Disclosure Schedule) constitutes the entire agreement among the
parties with respect to its subject matter and supersedes all other prior and
contemporaneous agreements and understandings, both written and oral, among or
between any of the parties with respect to the subject matter hereof, PROVIDED,
HOWEVER, that the certain Mutual Confidentiality Agreement dated February 10,
2000 between the Company and Veeco shall not be superseded and shall remain in
full force and effect. This Merger Agreement may be executed in
61
several counterparts, each of which shall be deemed an original and all of which
shall constitute one and the same instrument.
10.06 GOVERNING LAW. THIS MERGER AGREEMENT SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF
LAW DOCTRINES EXCEPT TO THE EXTENT THAT CERTAIN MATTERS ARE PREEMPTED BY FEDERAL
LAW OR ARE GOVERNED BY THE LAW OF THE JURISDICTION OF ORGANIZATION OF THE
RESPECTIVE PARTIES.
10.07 DISCLOSURE SCHEDULES. The Company Disclosure Schedule shall
be arranged in separate parts corresponding to the numbered and lettered
Sections contained in Article III, and the information disclosed in any numbered
or lettered part shall be deemed to relate to and to qualify only the particular
representation or warranty set forth in the corresponding number or lettered
Section in Article III, and shall not be deemed to relate to or to qualify any
other representation or warranty. The Veeco Disclosure Schedule shall be
arranged in separate parts corresponding to the numbered and lettered Sections
contained in Article IV, and the information disclosed in any numbered or
lettered part shall be deemed to relate to and to qualify only the particular
representation or warranty set forth in the corresponding numbered or lettered
Section in Article IV, and shall not be deemed to related to or to qualify any
other representation or warranty.
10.08 ATTORNEYS' FEES. In any action at law or suit in equity to
enforce this Merger Agreement or the rights of any of the parties hereunder, the
prevailing party in such action or suit shall be entitled to receive a
reasonable sum for its attorneys' fees and all other reasonable costs and
expenses incurred in such action or suit.
10.09 ASSIGNMENT. Neither Veeco, Acquisition nor the Company may
assign this Merger Agreement to any other Person without the prior written
consent of the other parties hereto.
10.10 NOTICES. All notices and other communications hereunder
shall be in writing and shall be deemed to have been duly given (a) when
delivered personally, (b) when transmitted by telecopy (transmission confirmed),
(c) on the fifth business day following mailing by registered or certified mail
(return receipt requested), or (d) on the next business day following deposit
with an overnight delivery service of national reputation, to the parties at the
following addresses and telecopy numbers (or at such other address or telecopy
number for a party as may be specified by like notice):
62
If to Veeco or Acquisition:
c/o Veeco Instruments Inc.
Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx,
Chairman, President and Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
If to the Company:
CVC, Inc.
000 Xxx Xxxx
Xxxxxxxxx, XX 00000
Attention: Xxxxxxxxx Xxxxxxx
Chief Executive Officer
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
With a copy to:
Xxxxx Xxxxxxxxxx LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Telephone: (000) 000-0000
Telecopy: (000) 000-0000
10.11 HEADINGS. The headings contained in this Merger Agreement
are for reference purposes only and shall not affect in any way the meaning or
interpretation of this Merger Agreement.
10.12 EXHIBITS AND SCHEDULES. The Exhibits and Schedules to this
Merger Agreement are incorporated by reference herein and are made a part hereof
as if they were fully set forth herein. References herein to "this Merger
Agreement," "herein," "hereof" and phrases of like
63
import are references to this Merger Agreement, together with the Exhibits and
Schedules hereto, including the Company Disclosure Schedule and the Veeco
Disclosure Schedule.
10.13 SEVERABILITY. The invalidity of any term or terms of this
Merger Agreement shall not affect any other term of this Merger Agreement, which
shall remain in full force and effect.
10.14 NO THIRD-PARTY BENEFICIARIES. Other than the Indemnified
Persons, there are no third party beneficiaries of this Merger Agreement or of
the transactions contemplated hereby and nothing contained herein shall be
deemed to confer upon anyone other than the parties hereto (and their permitted
successors and assigns) and, with respect to the obligations of Veeco pursuant
to Section 5.07 the Indemnified Persons, any right to insist upon or to enforce
the performance of any of the obligations contained herein.
* * * * *
64
IN WITNESS WHEREOF, the parties have executed this Merger
Agreement as of the date first above written.
VEECO INSTRUMENTS INC.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, CEO, President
CVC, INC.
By: /s/ Xxxxxxxxx X. Xxxxxxx
----------------------------------
Name: Xxxxxxxxx X. Xxxxxxx
Title: Chairman, President, & CEO
VEECO ACQUISITION CORP.
By: /s/ Xxxxxx X. Xxxxx
----------------------------------
Name: Xxxxxx X. Xxxxx
Title: Chairman, CEO, President
SCHEDULE A
Company Stockholders Party to
Company Stockholders Voting Agreement
Seagate Technology, Inc.
Niko Tecno Co., Inc.
Advent International Group
Global Private Equity III Limited Partnership
Advent PGGM Global Limited Partnership
Advent Partners GPE III Limited Partnership
Advent Partners (NA) GPE III Limited Partnership
Advent Partners Limited Partnership
Xxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxx
SCHEDULE B
Veeco Stockholders Party to
Veeco Stockholders Voting Agreement
Xxxxxx X. Xxxxx
Xxxx X. Xxxx, Xx.
Xxxxxxx Xxxxxx
Xxxxxx Xxxxxx
SCHEDULE C
Company Affiliates
Seagate Technology
Nikko Tecno, Inc.
Xxxxxxxxx X. Xxxxxxx
Xxxxxxxx Xxxxxxxx
Xxxxxx X. XxXxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxxxxxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxx
Xxxxxxx X. Xxxxxxx
Xxxx X. Xxxxxxxxx
Xxxxxx X. Xxxx
Xxxxxxx X. Xxxxxxxx
Seiya Xxxxxxxxx
Xxxxxx X. Xxxxx
Xxxxxxx X. Xxxxxx
SCHEDULE D
Veeco Affiliates
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxxx
Xxxxxxx X. X'Xxxxx
Xxxx X. Low
Xxxx X. Xxxxxxx
Xxxx X. Xxxx, Xx.
Xxxxxxx Xxxxxxxxx
Xxxxxxx X. Xxxxxx
Xxxxxx X. Xxxxx
Xxxx X. Xxxxxxx
Xxxxx X. Xxxxxxxx
Xxxxx X. XxXxxxxx
Xxxxx Xxxxxxx
Xxxxxx Xxxxxx, Ph. D.
Xxx X. Xxxxx, Ph. D.
Xxxxxx X. Xxxxxx
Xxxxx X. XxXxxx
Xxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxxxxx
Xxxxxx X. Xxxxx
SCHEDULE E
Officers of Acquisition Immediately
Prior to the Effective Time
OFFICERS OF ACQUISITION POSITION
Xxxxxx X. Xxxxx CEO
Xxxx X. Xxxx, Xx. Vice President and Treasurer
Xxxx Xxxxxxx Secretary
Xxxxxxxxx Xxxxxxx President
Xxxxxx XxXxxxxxx Senior Vice President and Chief Financial Officer
Xxxxxxxx Xxxxxxxx Executive Vice President, Sales & Service
Xxxxxxx X. Xxxxxxx Senior Vice President and Chief Technical Officer
Xxxxxxxxxxx X. Xxxx Senior Vice President, Marketing
Xxxxxxx X. Xxxxxxxx Vice President, Engineering
Xxxxxxx X. Xxxxxxx Vice President, Manufacturing
Xxxx X. Xxxxxxxxx Vice President, Quality and Human Resources
EXHIBIT A
COMPANY STOCKHOLDERS
VOTING AGREEMENT
COMPANY STOCKHOLDERS VOTING AGREEMENT (this "AGREEMENT"),
dated February 29, 2000, among each of the individuals and entities listed on
SCHEDULE A to this Agreement (each, a "COMPANY STOCKHOLDER" and collectively,
the "COMPANY STOCKHOLDERS") and Veeco Instruments Inc., a Delaware corporation
("VEECO").
WHEREAS, Veeco Acquisition Corp., a Delaware corporation and a
wholly-owned subsidiary of Veeco ("ACQUISITION"), and CVC, Inc., a Delaware
corporation (the "COMPANY") propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended, supplemented or
modified in accordance with its terms, the "MERGER AGREEMENT") providing for the
merger of Acquisition into the Company (the "MERGER");
WHEREAS, capitalized terms used in this Agreement but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement;
WHEREAS, this Agreement is the Company Stockholders Voting
Agreement contemplated by and referred to in the Merger Agreement;
WHEREAS, each Company Stockholder owns the number of Existing
Company Shares (as defined) set forth opposite such Company Stockholder's name
on SCHEDULE A hereto and the Company Stockholders collectively own in the
aggregate 6,086,749 Existing Company Shares (as defined);
WHEREAS, as a condition to the willingness of Veeco to enter
into the Merger Agreement, Veeco has requested that the Company Stockholders
enter into this Agreement.
NOW THEREFORE, to induce Veeco to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement, intending to be legally bound,
hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
1.1. "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned
by all other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d) of the Exchange Act with respect to securities of the
same issuer.
1.2. "COMPANY SHARES" with respect to any Company Stockholder,
shall mean such Company Stockholder's Existing Company Shares and any shares of
Company Common Stock and/or other Equity Securities of, or equity interest in,
the Company acquired by the Company Stockholder in any capacity after the date
of this Agreement and prior to the termination of this Agreement, whether upon
the exercise of options, warrants or rights, the conversion or exchange of
convertible or exchangeable securities, or by means of purchase, dividend,
distribution, split-up, recapitalization, combination, exchange of shares or the
like, gift, bequest, inheritance or as a successor in interest in any capacity
or otherwise Beneficially Owned by such Company Stockholder, in each case, if
and to the extent entitled to be voted.
1.3. "EXISTING COMPANY SHARES" with respect to any Company
Stockholder, means all shares of Company Common Stock Beneficially Owned by such
Company Stockholder on the date of this Agreement, in each case, if and to the
extent entitled to be voted..
1.4. "IRREVOCABLE PROXY" shall mean a Company Stockholder
Power of Attorney and Irrevocable Proxy in the form of EXHIBIT A attached to
this Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
2.1. ENTITY COMPANY STOCKHOLDER REPRESENTATIONS AND
WARRANTIES. Each Company Stockholder that is a legal entity, or otherwise not an
individual Person, hereby represents and warrants to Veeco as follows:
(a) AUTHORITY. Such Company Stockholder is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization. Such Company Stockholder has all power and authority necessary to
enable it to enter into this Agreement and to carry out the transactions
contemplated by this Agreement and such Company Stockholder's Irrevocable Proxy.
This Agreement and such Company Stockholder's Irrevocable Proxy have been duly
and validly authorized, executed and delivered by such Company Stockholder and
each constitutes such Company Stockholder's legal, valid and binding obligation,
enforceable against it in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement or such Company Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Company
Stockholder's Irrevocable Proxy or by any document to be delivered in accordance
herewith or therewith will violate, result in a breach of, or constitute a
default (or an event which, with notice or lapse of time or both would
constitute a default) under, (i) such Company Stockholder's certificate of
incorporation, limited partnership agreement or other organizational, governing
or constating documents, (ii) any agreement or instrument to which such Company
Stockholder is a party or by which it is bound, or (iii) any Law,
2
or any order, rule or regulation of any court or Governmental Authority or other
regulatory organization having jurisdiction over it.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is required
for (i) the execution and delivery of this Agreement and such Company
Stockholder's Irrevocable Proxy by such Company Stockholder, (ii) the
performance by such Company Stockholder of its obligations under this Agreement
and such Company Stockholder's Irrevocable Proxy or (iii) the consummation by
such Company Stockholder of the transactions contemplated by this Agreement and
such Company Stockholder's Irrevocable Proxy.
2.2. INDIVIDUAL COMPANY STOCKHOLDER REPRESENTATIONS AND
WARRANTIES. Each Company Stockholder that is an individual hereby represents and
warrants to Veeco as follows:
(a) AUTHORITY. Such Company Stockholder has full capacity and
authority to enter into this Agreement and such Company Stockholder's
Irrevocable Proxy, and to carry out the transactions contemplated hereby and
thereby. This Agreement and such Company Stockholder's Irrevocable Proxy have
been duly executed and delivered by such Company Stockholder and each
constitutes a legal, valid and binding obligation of such Company Stockholder
enforceable against such Company Stockholder in accordance with its terms.
(b) NON-CONTRAVENTION. None of the execution and delivery of
this Agreement or such Company Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Company
Stockholder's Irrevocable Proxy or by any document to be delivered in accordance
herewith or therewith will violate, result in a breach of, or constitute a
default (or an event which, with notice or lapse of time or both would
constitute a default) under, (i) any agreement or instrument to which such
Company Stockholder is a party or by which such Company Stockholder is bound,
(ii) any Law, or any order, rule or regulation of any court or Governmental
Authority or other regulatory organization having jurisdiction over such Company
Stockholder.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is necessary
or required (i) for the execution and delivery of this Agreement or such Company
Stockholder's Irrevocable Proxy by such Company Stockholder, (ii) the
performance by such Company Stockholder of such Company Stockholder's
obligations under this Agreement or such Company Stockholder's Irrevocable Proxy
or (iii) the consummation by such Company Stockholder of the transactions
contemplated hereby or by such Company Stockholder's Irrevocable Proxy.
2.3. COMPANY STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each
Company Stockholder hereby represents and warrants to Veeco as follows:
(a) OWNERSHIP OF EXISTING COMPANY SHARES. Such Company
Stockholder is the record and Beneficial Owner of the number of Existing Company
Shares set forth opposite such
3
Company Stockholder's name on SCHEDULE A to this Agreement. On the date of this
Agreement, such Existing Company Shares constitute all of the shares of Company
Common Stock owned of record or Beneficially Owned by such Company Stockholder.
(b) LIENS AND RESTRICTIONS ON EXISTING COMPANY SHARES. Such
Company Stockholder owns the number of Existing Company Shares set forth
opposite such Company Stockholder's name on SCHEDULE A hereto, free and clear of
any Liens, claims, security interests, proxies, voting trusts or agreements,
restrictions, qualifications, limitations, understandings or arrangements which
would in any way restrict or impair such Company Stockholder's right to vote
such Existing Company Shares in his, her or its sole discretion, or could
require such Company Stockholder to sell or transfer any of such Existing
Company Shares (whether upon default on a loan or otherwise) before the
Effective Time.
(c) VOTING POWER OVER EXISTING COMPANY SHARES. Such Company
Stockholder has sole voting power and sole power to issue instructions and sole
power to agree to the matters set forth in this Agreement with respect to all of
such Company Stockholder's Existing Company Shares.
(d) SURVIVAL. The obligations of such Company Stockholder
under this Agreement shall survive the death, disability or incapacity of such
Company Stockholder.
2.4. VEECO REPRESENTATIONS AND WARRANTIES. Veeco hereby
represents and warrants to the Company Stockholders as follows:
(a) AUTHORITY. Veeco is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware. Veeco has
all power and authority necessary to enable it to enter into this Agreement and
to carry out the transactions contemplated by this Agreement. This Agreement has
been duly and validly authorized, executed and delivered by Veeco and
constitutes a legal, valid and binding obligation of Veeco enforceable against
Veeco in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement by Veeco nor the consummation of the transactions contemplated by
this Agreement will violate, result in a breach of, or constitute a default (or
an event which, with notice or lapse of time or both would constitute a default)
under, the certificate of incorporation or by-laws of Veeco.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is required
for (i) the execution and delivery of this Agreement by Veeco, (ii) the
performance by Veeco of its obligations under this Agreement or (iii) the
consummation by Veeco of the transactions contemplated by this Agreement.
4
SECTION 3. COVENANTS OF THE COMPANY STOCKHOLDERS.
3.1. VOTE FOR MERGER. At any meeting of stockholders of the
Company called to vote upon the Merger and the Merger Agreement or any of the
transactions contemplated by the Merger Agreement, or at any adjournment or
postponement thereof, or in any other circumstances upon which a vote, Consent
or other approval with respect to the Merger and the Merger Agreement is sought,
each Company Stockholder's Company Shares shall be counted as present thereat
for purposes of establishing a quorum and shall be voted or Consented (or caused
to be voted or Consented) in favor of the Merger, the adoption by the Company of
the Merger Agreement, other matters relating to the approval of the terms of the
Merger Agreement and each of the other transactions contemplated by the Merger
Agreement.
3.2. VOTE AGAINST CERTAIN MATTERS. Prior to the Effective
Time, at any meeting of stockholders of the Company or at any adjournment or
postponement thereof or in any other circumstances upon which a Company
Stockholder's vote, Consent or other approval is sought, such Company
Stockholder's Company Shares shall be counted as present thereat for purposes of
establishing a quorum and shall be voted or Consented (or caused to be voted or
Consented) against any proposal or transaction involving the Company or any of
its Subsidiaries if such transaction or proposal would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement; PROVIDED, that nothing
set forth in this Section 3.2 is intended or shall be construed to restrict or
impair the right of a Company Stockholder to vote or Consent (or cause to be
voted or Consented) any Company Shares owned of record or Beneficially Owned by
such Company Stockholder (i) in favor of any Company Acquisition Proposal or
related Company Acquisition Transaction or (ii) in the election of any director
of the Company.
3.3. EXECUTION AND DELIVERY OF IRREVOCABLE PROXIES. In order
to effectuate the voting arrangements contemplated by Section 3.1 and Section
3.2 hereof, contemporaneously with the execution and delivery by the parties
hereto of this Agreement, and as a condition to such execution and delivery by
Veeco, each Company Stockholder is delivering to Veeco an Irrevocable Proxy duly
executed by or on behalf of such Company Stockholder.
3.4. TRANSFERS; OTHER VOTING ARRANGEMENTS INCONSISTENT
ACTIONS.
(a) TRANSFEREES BOUND. It shall be a condition precedent to
any direct or indirect sale, transfer, pledge, assignment or other disposition
of, or entry into any Contract, option or other arrangement with respect to the
sale, transfer, pledge, assignment or other disposition of, any Company Shares
by a Company Stockholder (any of the foregoing, whether voluntary or
involuntary, by operation of Law or otherwise a "TRANSFER") to any Person (the
"TRANSFEREE") that (A) the Company Stockholder desiring to effect such Transfer
provide to the proposed Transferee in connection therewith a copy of this
Agreement and the Irrevocable Proxy and (B) such Transferee shall agree, prior
to the consummation of such Transfer, to become bound by this Agreement and such
Company Stockholder's Irrevocable Proxy and subject to the terms, conditions and
restrictions
5
hereof and thereof in the same manner as the Company Stockholder desiring to
effect such Transfer, by executing a writing to such effect in form and
substance satisfactory to Veeco.
(b) OTHER VOTING ARRANGEMENTS, ETC. No Company Stockholder
shall, directly or indirectly, enter into any voting arrangement, whether by
proxy, voting arrangement, voting agreement, voting trust or otherwise with
respect to any Company Shares owned of record or Beneficially Owned by such
Company Stockholder other than as contemplated under and as required by this
Agreement and such Company Stockholder's Irrevocable Proxy.
(c) INCONSISTENT ACTIONS; NON-INTERFERENCE. No Company
Stockholder shall, directly or indirectly, take any action that would or could
reasonably be expected to (A) make any representation or warranty of the Company
Stockholder contained herein untrue or incorrect, or (B) result in a breach by
the Company Stockholder of its obligations under this Agreement, or (C) result
in a breach by the Company of its obligations under the Merger Agreement, or (D)
invalidate or in any way limit the enforceability by the Proxyholders (as
defined in the Irrevocable Proxy) of such Company Stockholder's Irrevocable
Proxy, or (E) have an effect that would be inconsistent with, or violative of,
any provision or agreement contained in the Merger Agreement.
SECTION 4. COVENANTS RELATING TO CONFIDENTIALITY AND DISCLOSURE.
4.1. CONFIDENTIALITY. Each Company Stockholder recognizes that
successful consummation of the transactions contemplated by this Agreement and
the Merger Agreement may be dependent upon the maintenance of strict
confidentiality with respect to the matters referred to herein and therein. In
this connection, pending public disclosure thereof by Veeco or the Company, each
Company Stockholder hereby agrees not to disclose or discuss such matters with
anyone not a party to this Agreement or the Merger Agreement (other than to its
and to the Company's counsel and advisors) without the prior written consent of
Veeco, except for filings, if any, required pursuant to the Exchange Act and the
rules and regulations promulgated thereunder or disclosures that such Company
Stockholder's counsel advises are necessary in order to fulfill such Company
Stockholder's obligations imposed by Law, in which event such Company
Stockholder shall give prior notice of such disclosure to Veeco as promptly as
practicable so as to enable Veeco to seek a protective order from a court of
competent jurisdiction with respect thereto or similar relief in connection
therewith.
4.2. DISCLOSURE. Each Company Stockholder hereby agrees to
permit the Company and Veeco to publish and disclose in the Form S-4
Registration Statement and the Joint Proxy Statement (including all documents,
exhibits and schedules filed with the SEC), and any press release or other
disclosure document which Veeco or the Company determine to be necessary or
desirable in connection with the Merger and the transactions related thereto,
such Company Stockholder's identity and ownership of Company Common Stock or
Veeco Shares, as the case may be, and the nature of its commitments,
arrangements and understandings under this Agreement and such Company
Stockholder's Irrevocable Proxy.
6
SECTION 5. CERTAIN ADDITIONAL COVENANTS OF THE COMPANY
STOCKHOLDERS.
5.1. NO SOLICITATION. Each Company Stockholder shall not, and
shall cause its Affiliates and Representatives not to, directly or indirectly,
take any action to initiate, solicit, encourage or facilitate the making of any
Company Acquisition Proposal or any inquiry with respect thereto, or engage in
discussions or negotiations with any Person (other than Veeco or any of its
Affiliates or Representatives) relating to any Company Acquisition Proposal or
disclose any non-public information relating to the Company or any Subsidiary of
the Company or afford access to the properties, books or records of the Company
or any Subsidiary of the Company, to any Person that has made a Company
Acquisition Proposal. A Company Stockholder shall notify Veeco orally and in
writing of any offers, proposals or inquiries received by such Company
Stockholder relating to the purchase or acquisition by any Person of any Company
Shares and of any Company Acquisition Proposal actually known to such Company
Stockholder (including, in each case, the material terms and conditions thereof
and the identity of the Person making it), within 24 hours of receipt thereof.
Each Company Stockholder shall and shall cause its Representatives to,
immediately cease and cause to be terminated any and all existing activities,
discussions and negotiations, if any, with any parties conducted heretofore with
respect to any Company Acquisition Proposal, other than discussions or
negotiations with Veeco or its Affiliates or Representatives. Notwithstanding
the restrictions set forth in this Section 5.1, each of the Company and any
Person (including any Company Stockholder) who is an officer or director of the
Company may take any action in such capacity that is consistent with the terms
of the Merger Agreement.
5.2. RELIANCE. Each Company Stockholder understands and
acknowledges that Veeco is entering into the Merger Agreement in reliance upon
such Company Stockholder's execution and delivery of this Agreement and such
Company Stockholder's Irrevocable Proxy.
5.3. AFFILIATE AGREEMENT. Each Company Stockholder, if
requested by Veeco prior to the Effective Time, will duly execute and deliver to
Veeco a Company Affiliate Agreement contemplated by Section 5.21(a) of the
Merger Agreement.
SECTION 6. TERMINATION.
6.1. TERMINATION OF AGREEMENT. The provisions of this
Agreement shall terminate and be of no further force or effect upon the earlier
to occur of (a) the termination of the Merger Agreement in accordance with its
terms and (b) the Effective Time of the Merger.
SECTION 7. MISCELLANEOUS.
7.1 EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring the expense.
7
7.2 ENTIRE AGREEMENT. This Agreement and any documents to be
delivered in accordance with this Agreement (including the Irrevocable Proxies
of the Company Stockholders) contain the entire agreement among the parties
relating to the transactions which are the subject of this Agreement, and all
prior and contemporaneous negotiations, understandings and agreements among the
parties (whether written or oral) with regard to the subject matter of this
Agreement are superseded by this Agreement, and there are no representations,
warranties, understandings or agreements concerning the transactions which are
the subject of this Agreement or those other documents other than those
expressly set forth in this Agreement.
7.3 CAPTIONS. The captions of the articles and paragraphs of
this Agreement are for reference only, and do not affect the meaning or
interpretation of this Agreement.
7.4. BINDING AGREEMENT; ASSIGNMENT.
(a) BINDING AGREEMENT. Each Company Stockholder agrees that
this Agreement and the obligations hereunder shall attach to the Company Shares
and shall be binding upon any Person to which record or Beneficial Ownership of
such Company Shares shall pass, wether by operation of Law or otherwise,
including, without limitation, the Company Stockholder's heirs, distributees,
guardians, administrators, executors, legal representatives, or successors,
partners or other transferees (for value or otherwise) and any other successors
in interest. Notwithstanding any transfer of Company Shares, the transferor
shall remain liable for the performance of all obligations under this Agreement
of the transferor.
(b) ASSIGNMENT. Notwithstanding anything to the contrary set
forth herein, no party may assign any of its rights or obligations hereunder, by
operation of Law or otherwise, without the prior written consent of the other
party; provided, that Veeco may assign, in its sole discretion, its rights and
obligations hereunder to any direct or indirect wholly-owned subsidiary of
Veeco, but no such assignment shall relieve Veeco of its obligations hereunder
if such assignee does not perform such obligations.
7.5. NOTICES AND OTHER COMMUNICATIONS. Any notice or other
communication under this Agreement must be in writing and will be deemed given
when delivered in person or sent by facsimile (with proof of receipt at the
number to which it is required to be sent), or on the third business day afer
the day on which mailed by first class mail from within the United States of
America, to the following addresses (or such other address as may be specified
after the date of this Agreement by the party to which the notice or
communication is sent):
8
If to Veeco:
Veeco Instruments Inc.
Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxx X. Xxxxx
Chairman, President and Chief Executive Officer
Facsimile No: (000) 000-0000
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
If to any Company Stockholder, to such Company Stockholder at
the address set forth under such Company Stockholder's signature on the
signature pages to this Agreement.
with a copy to:
Xxxxx Xxxxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
7.6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF
LAWS DOCTRINES.
7.7. AMENDMENTS. Prior to the Effective Time, this Agreement
may be amended only by a document in writing signed by Veeco and each Company
Stockholder.
7.8. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, some of which may contain the signatures of some, but not
all, the parties hereto. Each of those counterparts will be deemed an original,
but all of them together will constitute one and the same Agreement.
7.9. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will
9
be fully severable, (ii) this Agreement will be construed and enforced as if
such illegal, invalid or unenforceable provision had never comprised a part
hereof, (iii) the remaining provisions of this Agreement will remain in full
force and effect and will not be affected by the illegal, invalid or
unenforceable provision or by its severance herefrom and (iv) in lieu of such
illegal, invalid or unenforceable provision, there will be added automatically
as a part of this Agreement a legal, valid and enforceable provision as similar
in terms to such illegal, invalid or unenforceable provision as may be possible.
7.10. ENFORCEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties hereto shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any Federal
court located in the State of Delaware or in a Delaware state court, this being
in addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in any action or proceeding relating to or arising out of
this Agreement (including, with respect to a Company Stockholder, such Company
Stockholder's Irrevocable Proxy) or any of the transactions contemplated hereby,
(ii) agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (iii)
agrees that such parties will not seek to change the venue of any such action or
proceeding or otherwise to move any such action or proceeding to another court,
whether because of inconvenience of the forum or otherwise (provided that
nothing in this Section will prevent a party from removing an action or
proceeding from a Delaware state court to a Federal court located in the State
of Delaware), (iv) agrees that such party will not bring any action relating to
this Agreement or any Irrevocable Proxy or any of the transactions contemplated
hereby or thereby in any court other than a Federal court sitting in the State
of Delaware or a Delaware state court and (v) waives any right to trial by jury
with respect to any claim or proceeding related to or arising out of this
Agreement or any Irrevocable Proxy or any of the transactions contemplated
hereby or thereby.
7.11. FURTHER ASSURANCES. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement and the Irrevocable Proxies.
10
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be signed by its officer thereunto duly authorized as of the date
in the first paragraph of this Agreement.
VEECO
VEECO INSTRUMENTS INC.
By:
---------------------------------
Name:
Title:
COMPANY STOCKHOLDERS
SEAGATE TECHNOLOGY, INC.
By:
---------------------------------
Name:
Title:
Seagate Technology, Inc.'s
Address for Notice:
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
11
NIKKO TECNO CO., INC.
By:
---------------------------------
Name:
Title:
Nikko Tecno Co., Inc.
Address for Notice
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
12
ADVENT INTERNATIONAL GROUP
By:
---------------------------------
Name:
Title:
Advent International Group's
Address for Notice:
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
GLOBAL PRIVATE EQUITY III LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By:
---------------------------------
Name:
Title:
Global Private Equity III Limited
Partnership's
Address for Notice:
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
13
ADVENT PGGM GLOBAL LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By:
---------------------------------
Name:
Title:
Advent PGGM Global Limited
Partnership's
Address for Notice:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Facsimile No.:
-----------------------
ADVENT PARTNERS GPE III LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By:
----------------------------------
Name:
Title:
Advent Partners GPE III Limited
Partnership's
Address for Notice:
-------------------------------------
-------------------------------------
Attention:
---------------------------
Facsimile No.:
-----------------------
14
ADVENT PARTNERS (NA) GPE III LIMITED
PARTNERSHIP
By: Advent International Group, its
General Partner
By:
----------------------------------
Name:
Title:
Advent Partners (NA) GPE III Limited
Partnership's
Address for Notice:
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
ADVENT PARTNERS LIMITED PARTNERSHIP
By: Advent International Group, its
General Partner
By:
---------------------------------
Name:
Title:
Advent Partners Limited
Partnership's
Address for Notice:
------------------------------------
------------------------------------
Attention:
--------------------------
Facsimile No.:
----------------------
15
------------------------------------
Xxxx X. Xxxxxxx
Xxxx X. Xxxxxxx'x
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile No.:
----------------------
16
------------------------------------
Xxxxxxxxx X. Xxxxxxx
Xxxxxxxxx X. Xxxxxxx'x
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile No.:
----------------------
------------------------------------
Xxxxxx X. XxXxxxxxx
Xxxxxx X. XxXxxxxxx'x
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile No.:
----------------------
------------------------------------
Xxxxxxx X. Xxxxxxx
Xxxxxxx X. Xxxxxxx'x
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Facsimile No.:
----------------------
17
------------------------------------
Xxxxxxxxxxx X. Xxxx
Xxxxxxxxxxx X. Xxxx'x
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
Facsimile No.:
----------------------
18
SCHEDULE A
COMPANY STOCKHOLDER NO. OF EXISTING COMPANY SHARES HELD
Seagate Technology, Inc. 2,428,313
Nikko Tecno Co., Inc. 1,412,316
Global Private Equity III Limited Partnership 853,658
Advent PGGM Global Limited Partnership 130,793
Advent Partners GPE III Limited Partnership 12,907
Advent Partners (NA) GPE III Limited Partnership 3,861
Advent Partners Limited Partnership 15,041
Xxxx X. Xxxxxxx 451,900
Xxxxxxxxx X. Xxxxxxx 368,000
Xxxxxx X. XxXxxxxxx 50,000
Xxxxxxx X. Xxxxxxx 304,000
Xxxxxxxxxxx X. Xxxx 55,960
Schedule A - Page 1
EXHIBIT A
COMPANY STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Company Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Company Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Company
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints Veeco
Instruments Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers
and other designees (each such Person, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of Section
212 of the Delaware General Corporation Law, with full power of substitution, in
the Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Company Shares now
owned of record or Beneficially Owned by the Granting Stockholder and of which
the Granting Stockholder may hereafter acquire record or Beneficial Ownership,
and any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of the
Company (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by the Company of the
Merger Agreement, other matters relating to the approval of the terms
of the Merger Agreement and each of the other transactions contemplated
by the Merger Agreement; and
(b) against any proposal or transaction involving the Company
or any of its Subsidiaries if any such transaction or proposal would in
any manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Company Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Company
Acquisition Proposal or related Company Acquisition Transaction or (ii)
in the election of any director of the Company.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to the Company Shares and the Other Securities
that the Granting Stockholder may have heretofore granted, and no subsequent
proxy or power of attorney shall be given or written consent executed (and if
given or executed, shall not be effective) by the Granting Stockholder with
respect thereto. All authority herein conferred or agreed to be conferred shall
survive the death or incapacity of the Granting Stockholder and any obligation
of the Granting Stockholder under this Irrevocable Proxy shall be binding upon
the heirs, personal representatives, successors and assigns of the Granting
Stockholder.
Exhibit A - Page 1
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
-----------------------------------------------------
(Signature of Granting Stockholder)
-----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Company Shares)
----------------------------------
(Date)
Exhibit A - Page 2
EXHIBIT B
VEECO STOCKHOLDERS
VOTING AGREEMENT
VEECO STOCKHOLDERS VOTING AGREEMENT (this "AGREEMENT"), dated
February 29, 2000, among each of the individuals and entities listed on SCHEDULE
A to this Agreement (each, a "VEECO STOCKHOLDER" and collectively, the "VEECO
STOCKHOLDERS") and CVC, Inc., a Delaware corporation (the "COMPANY").
WHEREAS, Veeco Acquisition Corp. ("ACQUISITION"), a Delaware
corporation and a wholly-owned subsidiary of Veeco Instruments Inc. ("VEECO"),
and the Company propose to enter into an Agreement and Plan of Merger dated as
of the date hereof (as the same may be amended, supplemented or modified in
accordance with its terms, the "MERGER AGREEMENT") providing for the merger of
Acquisition into the Company (the "MERGER");
WHEREAS, capitalized terms used in this Agreement but not
otherwise defined herein shall have the respective meanings ascribed to such
terms in the Merger Agreement;
WHEREAS, this Agreement is the Veeco Stockholders Voting
Agreement contemplated by and referred to in the Merger Agreement;
WHEREAS, each Veeco Stockholder owns the number of Existing
Veeco Shares (as defined) set forth opposite such Veeco Stockholder's name on
SCHEDULE A hereto and the Veeco Stockholders collectively own in the aggregate
128,490 Existing Veeco Shares (as defined);
WHEREAS, as a condition to the willingness of the Company to
enter into the Merger Agreement, the Company has requested that the Veeco
Stockholders enter into this Agreement.
NOW THEREFORE, to induce the Company to enter into, and in
consideration of its entering into, the Merger Agreement, and in consideration
of the mutual covenants and agreements set forth herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Agreement, intending to be legally bound,
hereby agree as follows:
SECTION 1. CERTAIN DEFINITIONS.
1.1. "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect
to any securities shall mean having "beneficial ownership" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing. Without duplicative counting of the same securities by the same holder,
securities Beneficially Owned by a Person shall include securities Beneficially
Owned
1
by all other Persons with whom such Person would constitute a "group" within the
meaning of Section 13(d) of the Exchange Act with respect to securities of the
same issuer.
1.2. "VEECO SHARES" with respect to any Veeco Stockholder,
shall mean such Veeco Stockholder's Existing Veeco Shares and any Veeco Shares
and/or other Equity Securities of, or equity interest in, Veeco acquired by the
Veeco Stockholder in any capacity after the date of this Agreement and prior to
the termination of this Agreement, whether upon the exercise of options,
warrants or rights, the conversion or exchange of convertible or exchangeable
securities, or by means of purchase, dividend, distribution, split-up,
recapitalization, combination, exchange of shares or the like, gift, bequest,
inheritance or as a successor in interest in any capacity or otherwise
Beneficially Owned by such Veeco Stockholder, in each case, if and to the extent
entitled to be voted.
1.3. "EXISTING VEECO SHARES" with respect to any Veeco
Stockholder, means all Veeco Shares Beneficially Owned by such Veeco Stockholder
on the date of this Agreement, in each case, if and to the extent entitled to be
voted.
1.4. "IRREVOCABLE PROXY" shall mean a Veeco Stockholder Power
of Attorney and Irrevocable Proxy in the form of EXHIBIT A attached to this
Agreement.
SECTION 2. REPRESENTATIONS AND WARRANTIES.
2.1. ENTITY VEECO STOCKHOLDER REPRESENTATIONS AND WARRANTIES.
Each Veeco Stockholder that is a legal entity, or otherwise not an individual
Person, hereby represents and warrants to the Company as follows:
(a) AUTHORITY. Such Veeco Stockholder is duly organized,
validly existing and in good standing under the laws of the jurisdiction of its
organization. Such Veeco Stockholder has all power and authority necessary to
enable it to enter into this Agreement and to carry out the transactions
contemplated by this Agreement and such Veeco Stockholder's Irrevocable Proxy.
This Agreement and such Veeco Stockholder's Irrevocable Proxy have been duly and
validly authorized, executed and delivered by such Veeco Stockholder and each
constitutes such Veeco Stockholder's legal, valid and binding obligation,
enforceable against it in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement or such Veeco Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Veeco Stockholder's
Irrevocable Proxy or by any document to be delivered in accordance herewith or
therewith will violate, result in a breach of, or constitute a default (or an
event which, with notice or lapse of time or both would constitute a default)
under, (i) such Veeco Stockholder's certificate of incorporation, limited
partnership agreement or other organizational, governing or constating
documents, (ii) any agreement or instrument to which such Veeco Stockholder is a
party or by which it is bound, or (iii) any Law, or any order, rule or
regulation of any court or Governmental Authority or other regulatory
organization having jurisdiction over it.
2
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is required
for (i) the execution and delivery of this Agreement and such Veeco
Stockholder's Irrevocable Proxy by such Veeco Stockholder, (ii) the performance
by such Veeco Stockholder of its obligations under this Agreement and such Veeco
Stockholder's Irrevocable Proxy or (iii) the consummation by such Veeco
Stockholder of the transactions contemplated by this Agreement and such Veeco
Stockholder's Irrevocable Proxy.
2.2. INDIVIDUAL VEECO STOCKHOLDER REPRESENTATIONS AND
WARRANTIES. Each Veeco Stockholder that is an individual hereby represents and
warrants to the Company as follows:
(a) AUTHORITY. Such Veeco Stockholder has full capacity and
authority to enter into this Agreement and such Veeco Stockholder's Irrevocable
Proxy, and to carry out the transactions contemplated hereby and thereby. This
Agreement and such Veeco Stockholder's Irrevocable Proxy have been duly executed
and delivered by such Veeco Stockholder and each constitutes a legal, valid and
binding obligation of such Veeco Stockholder enforceable against such Veeco
Stockholder in accordance with its terms.
(b) NON-CONTRAVENTION. None of the execution and delivery of
this Agreement or such Veeco Stockholder's Irrevocable Proxy, nor consummation
of the transactions contemplated by this Agreement, by such Veeco Stockholder's
Irrevocable Proxy or by any document to be delivered in accordance herewith or
therewith will violate, result in a breach of, or constitute a default (or an
event which, with notice or lapse of time or both would constitute a default)
under, (i) any agreement or instrument to which such Veeco Stockholder is a
party or by which such Veeco Stockholder is bound, (ii) any Law, or any order,
rule or regulation of any court or Governmental Authority or other regulatory
organization having jurisdiction over such Veeco Stockholder.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is necessary
or required (i) for the execution and delivery of this Agreement or such Veeco
Stockholder's Irrevocable Proxy by such Veeco Stockholder, (ii) the performance
by such Veeco Stockholder of such Veeco Stockholder's obligations under this
Agreement or such Veeco Stockholder's Irrevocable Proxy or (iii) the
consummation by such Veeco Stockholder of the transactions contemplated hereby
or by such Veeco Stockholder's Irrevocable Proxy.
2.3. VEECO STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each
Veeco Stockholder hereby represents and warrants to the Company as follows:
(a) OWNERSHIP OF EXISTING VEECO SHARES. Such Veeco Stockholder
is the record and Beneficial Owner of the number of Existing Veeco Shares set
forth opposite such Veeco Stockholder's name on SCHEDULE A to this Agreement. On
the date of this Agreement, such Existing Veeco Shares constitute all of the
Veeco Shares owned of record or Beneficially Owned by such Veeco Stockholder.
3
(b) LIENS AND RESTRICTIONS ON EXISTING VEECO SHARES. Such
Veeco Stockholder owns the number of Existing Veeco Shares set forth opposite
such Veeco Stockholder's name on SCHEDULE A hereto, free and clear of any Liens,
claims, security interests, proxies, voting trusts or agreements, restrictions,
qualifications, limitations, understandings or arrangements which would in any
way restrict or impair such Veeco Stockholder's right to vote such Existing
Veeco Shares in his, her or its sole discretion, or could require such Veeco
Stockholder to sell or transfer any of such Existing Veeco Shares (whether upon
default on a loan or otherwise) before the Effective Time.
(c) VOTING POWER OVER EXISTING VEECO SHARES. Such Veeco
Stockholder has sole voting power and sole power to issue instructions and sole
power to agree to the matters set forth in this Agreement with respect to all of
such Veeco Stockholder's Existing Veeco Shares.
(d) SURVIVAL. The obligations of such Veeco Stockholder under
this Agreement shall survive the death, disability or incapacity of such Veeco
Stockholder.
2.4. COMPANY REPRESENTATIONS AND WARRANTIES. The Company
hereby represents and warrants to the Veeco Stockholders as follows:
(a) AUTHORITY. The Company is a corporation duly organized,
validly existing and in good standing under the laws of the State of Delaware.
The Company has all power and authority necessary to enable it to enter into
this Agreement and to carry out the transactions contemplated by this Agreement.
This Agreement has been duly and validly authorized, executed and delivered by
the Company and constitutes a legal, valid and binding obligation of the Company
enforceable against the Company in accordance with its terms.
(b) NON-CONTRAVENTION. Neither the execution and delivery of
this Agreement by the Company nor the consummation of the transactions
contemplated by this Agreement will violate, result in a breach of, or
constitute a default (or an event which, with notice or lapse of time or both
would constitute a default) under, the certificate of incorporation or by-laws
of the Company.
(c) APPROVALS AND CONSENTS. No governmental filings,
authorizations, approvals or Consents, or other governmental action is required
for (i) the execution and delivery of this Agreement by the Company, (ii) the
performance by the Company of its obligations under this Agreement or (iii) the
consummation by the Company of the transactions contemplated by this Agreement.
SECTION 3. COVENANTS OF THE VEECO STOCKHOLDERS.
3.1. VOTE FOR MERGER. At any meeting of stockholders of Veeco
called to vote upon the Merger and the Merger Agreement or any of the
transactions contemplated by the Merger Agreement, or at any adjournment or
postponement thereof, or in any other circumstances upon which a vote, Consent
or other approval with respect to the Merger and the Merger Agreement is sought,
each Veeco Stockholder's Veeco Shares shall be counted as present thereat for
purposes of
4
establishing a quorum and shall be voted or Consented (or caused to be voted or
Consented) in favor of the Merger, the adoption by Veeco of the Merger Agreement
and the issuance in the Merger of the Veeco Shares, other matters relating to
the approval of the terms of the Merger Agreement and each of the other
transactions contemplated by the Merger Agreement.
3.2. VOTE AGAINST CERTAIN MATTERS. Prior to the Effective
Time, at any meeting of stockholders of Veeco or at any adjournment or
postponement thereof or in any other circumstances upon which a Veeco
Stockholder's vote, Consent or other approval is sought, such Veeco
Stockholder's Veeco Shares shall be counted as present thereat for purposes of
establishing a quorum and shall be voted or Consented (or caused to be voted or
Consented) against any proposal or transaction involving Veeco or any of its
Subsidiaries if such transaction or proposal would in any manner impede,
frustrate, prevent or nullify the Merger, the Merger Agreement or any of the
other transactions contemplated by the Merger Agreement; PROVIDED, that nothing
set forth in this Section 3.2 is intended or shall be construed to restrict or
impair the right of a Veeco Stockholder to vote or Consent (or cause to be voted
or Consented) any Veeco Shares owned of record or Beneficially Owned by such
Veeco Stockholder (i) in favor of any Superior Veeco Proposal or related Veeco
Acquisition Transaction or (ii) in the election of any director of Veeco.
3.3. EXECUTION AND DELIVERY OF IRREVOCABLE PROXIES. In order
to effectuate the voting arrangements contemplated by Section 3.1 and Section
3.2 hereof, contemporaneously with the execution and delivery by the parties
hereto of this Agreement, and as a condition to such execution and delivery by
the Company, each Veeco Stockholder is delivering to the Company an Irrevocable
Proxy duly executed by or on behalf of such Veeco Stockholder.
3.4. TRANSFERS; OTHER VOTING ARRANGEMENTS INCONSISTENT ACTIONS.
(a) TRANSFEREES BOUND. It shall be a condition precedent to
any direct or indirect sale, transfer, pledge, assignment or other disposition
of, or entry into any Contract, option or other arrangement with respect to the
sale, transfer, pledge, assignment or other disposition of, any Veeco Shares by
a Veeco Stockholder (any of the foregoing, whether voluntary or involuntary, by
operation of Law or otherwise a "TRANSFER") to any Person (the "TRANSFEREE")
that (A) the Veeco Stockholder desiring to effect such Transfer provide to the
proposed Transferee in connection therewith a copy of this Agreement and the
Irrevocable Proxy and (B) such Transferee shall agree, prior to the consummation
of such Transfer, to become bound by this Agreement and such Veeco Stockholder's
Irrevocable Proxy and subject to the terms, conditions and restrictions hereof
and thereof in the same manner as the Veeco Stockholder desiring to effect such
Transfer, by executing a writing to such effect in form and substance
satisfactory to the Company.
(b) OTHER VOTING ARRANGEMENTS, ETC. No Veeco Stockholder
shall, directly or indirectly, enter into any voting arrangement, whether by
proxy, voting arrangement, voting agreement, voting trust or otherwise with
respect to any Veeco Shares owned of record or Beneficially Owned by such Veeco
Stockholder, other than as contemplated under and as required by this Agreement
and such Veeco Stockholder's Irrevocable Proxy.
5
(c) INCONSISTENT ACTIONS; NON-INTERFERENCE. No Veeco
Stockholder shall, directly or indirectly, take any action that would or could
reasonably be expected to: (A) make any representation or warranty of the Veeco
Stockholder contained herein untrue or incorrect, or (B) result in a breach by
the Veeco Stockholder of its obligations under this Agreement, or (C) result in
a breach by Veeco of its obligations under the Merger Agreement, or (D)
invalidate or in any way limit the enforceability by the Proxyholders (as
defined in the Irrevocable Proxy) of such Veeco Stockholder's Irrevocable Proxy,
or (E) have an effect that would be inconsistent with, or violative of, any
provision or agreement contained in the Merger Agreement.
SECTION 4. COVENANTS RELATING TO CONFIDENTIALITY AND DISCLOSURE.
4.1. CONFIDENTIALITY. Each Veeco Stockholder recognizes that
successful consummation of the transactions contemplated by this Agreement and
the Merger Agreement may be dependent upon the maintenance of strict
confidentiality with respect to the matters referred to herein and therein. In
this connection, pending public disclosure thereof by Veeco or the Company, each
Veeco Stockholder hereby agrees not to disclose or discuss such matters with
anyone not a party to this Agreement or the Merger Agreement (other than to its
and to Veeco's counsel and advisors) without the prior written consent of the
Company, except for filings, if any, required pursuant to the Exchange Act and
the rules and regulations promulgated thereunder or disclosures that such Veeco
Stockholder's counsel advises are necessary in order to fulfill such Veeco
Stockholder's obligations imposed by Law, in which event such Veeco Stockholder
shall give prior notice of such disclosure to the Company as promptly as
practicable so as to enable the Company to seek a protective order from a court
of competent jurisdiction with respect thereto or similar relief in connection
therewith.
4.2. DISCLOSURE. Each Veeco Stockholder hereby agrees to
permit Veeco and the Company to publish and disclose in the Form S-4
Registration Statement and the Joint Proxy Statement (including all documents,
exhibits and schedules filed with the SEC), and any press release or other
disclosure document which Veeco or the Company determine to be necessary or
desirable in connection with the Merger and the transactions related thereto,
such Veeco Stockholder's identity and ownership of Company Common Stock or Veeco
Shares, as the case may be, and the nature of its commitments, arrangements and
understandings under this Agreement and such Veeco Stockholder's Irrevocable
Proxy.
SECTION 5. CERTAIN ADDITIONAL COVENANTS OF THE VEECO STOCKHOLDERS.
5.1. NO SOLICITATION. Each Veeco Stockholder shall not, and
shall cause its Affiliates and Representatives not to, directly or indirectly,
take any action to initiate, solicit, encourage or facilitate the making of any
Veeco Acquisition Proposal or any inquiry with respect thereto, or engage in
discussions or negotiations with any Person relating to any Veeco Acquisition
Proposal or disclose any non-public information relating to Veeco or any
Subsidiary of Veeco or afford access to the properties, books or records of
Veeco or any Subsidiary of Veeco, to any Person
6
that has made a Veeco Acquisition Proposal. A Veeco Stockholder shall notify the
Company orally and in writing of any offers, proposals or inquiries received by
such Veeco Stockholder relating to the purchase or acquisition by any Person of
any Veeco Shares and of any Veeco Acquisition Proposal actually known to such
Veeco Stockholder (including, in each case, the material terms and conditions
thereof and the identity of the Person making it), within 24 hours of receipt
thereof. Each Veeco Stockholder shall and shall cause its Representatives to,
immediately cease and cause to be terminated any and all existing activities,
discussions and negotiations, if any, with any parties conducted heretofore with
respect to any Veeco Acquisition Proposal. Notwithstanding the restrictions set
forth in this Section 5.1, each of Veeco and any Person (including any Veeco
Stockholder) who is an officer or director of Veeco may take any action in such
capacity that is consistent with the terms of the Merger Agreement.
5.2. RELIANCE. Each Veeco Stockholder understands and
acknowledges that the Company is entering into the Merger Agreement in reliance
upon such Veeco Stockholder's execution and delivery of this Agreement and such
Veeco Stockholder's Irrevocable Proxy.
5.3. AFFILIATE AGREEMENT. Each Veeco Stockholder, if requested
by Veeco prior to the Effective Time, will duly execute and deliver to Veeco a
Veeco Affiliate Agreement contemplated by Section 5.21(b) of the Merger
Agreement.
SECTION 6. TERMINATION.
6.1. TERMINATION OF AGREEMENT. The provisions of this
Agreement shall terminate and be of no further force or effect upon the earlier
to occur of (a) the termination of the Merger Agreement in accordance with its
terms and (b) the Effective Time of the Merger.
SECTION 7. MISCELLANEOUS.
7.1. EXPENSES. All costs and expenses incurred in connection
with this Agreement and the transactions contemplated hereby shall be paid by
the party incurring the expense.
7.2. ENTIRE AGREEMENT. This Agreement and any documents to be
delivered in accordance with this Agreement (including the Irrevocable Proxies
of the Veeco Stockholders) contain the entire agreement among the parties
relating to the transactions which are the subject of this Agreement, and all
prior and contemporaneous negotiations, understandings and agreements among the
parties (whether written or oral) with regard to the subject matter of this
Agreement are superseded by this Agreement, and there are no representations,
warranties, understandings or agreements concerning the transactions which are
the subject of this Agreement or those other documents other than those
expressly set forth in this Agreement.
7.3. CAPTIONS. The captions of the articles and paragraphs of
this Agreement are for reference only, and do not affect the meaning or
interpretation of this Agreement.
7
7.4. BINDING AGREEMENT; ASSIGNMENT.
(a) BINDING AGREEMENT. Each Veeco Stockholder agrees
that this Agreement and the obligations hereunder shall attach to the Veeco
Shares and shall be binding upon any Person to which record or Beneficial
Ownership of such Veeco Shares shall pass, wether by operation of Law or
otherwise, including, without limitation, the Veeco Stockholder's heirs,
distributees, guardians, administrators, executors, legal representatives, or
successors, partners or other transferees (for value or otherwise) and any
other successors in interest. Notwithstanding any transfer of Veeco Shares,
the transferor shall remain liable for the performance of all obligations
under this Agreement of the transferor.
(b) ASSIGNMENT. Notwithstanding anything to the
contrary set forth herein, no party may assign any of its rights or
obligations hereunder, by operation of Law or otherwise, without the prior
written consent of the other party.
7.5. NOTICES AND OTHER COMMUNICATIONS. Any notice or other
communication under this Agreement must be in writing and will be deemed given
when delivered in person or sent by facsimile (with proof of receipt at the
number to which it is required to be sent), or on the third business day afer
the day on which mailed by first class mail from within the United States of
America, to the following addresses (or such other address as may be specified
after the date of this Agreement by the party to which the notice or
communication is sent):
If to the Company:
CVC, Inc.
000 Xxx Xxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Xxxxxxxxx Xxxxxxx
Facsimile No: (000) 000-0000
with a copy to:
Xxxxx Xxxxxxxxxx, LLP
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx X. Xxxxx, Esq.
Facsimile No.: (000) 000-0000
If to any Veeco Stockholder, to such Veeco Stockholder at the
address set forth under such Veeco Stockholder's signature on the signature
pages to this Agreement.
8
with a copy to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000-0000
Attention: Xxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
7.6. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF
LAWS DOCTRINES.
7.7. AMENDMENTS. Prior to the Effective Time, this Agreement
may be amended only by a document in writing signed by the Company and each
Veeco Stockholder.
7.8. COUNTERPARTS. This Agreement may be executed in two or
more counterparts, some of which may contain the signatures of some, but not
all, the parties hereto. Each of those counterparts will be deemed an original,
but all of them together will constitute one and the same Agreement.
7.9. SEVERABILITY. If any provision of this Agreement is held
to be illegal, invalid or unenforceable under any present or future Law, and if
the rights or obligations of any party hereto under this Agreement will not be
materially and adversely affected thereby, (i) such provision will be fully
severable, (ii) this Agreement will be construed and enforced as if such
illegal, invalid or unenforceable provision had never comprised a part hereof,
(iii) the remaining provisions of this Agreement will remain in full force and
effect and will not be affected by the illegal, invalid or unenforceable
provision or by its severance herefrom and (iv) in lieu of such illegal, invalid
or unenforceable provision, there will be added automatically as a part of this
Agreement a legal, valid and enforceable provision as similar in terms to such
illegal, invalid or unenforceable provision as may be possible.
7.10. ENFORCEMENT. The parties hereto agree that irreparable
damage would occur in the event that any of the provisions of this Agreement
were not performed in accordance with their specific terms or were otherwise
breached. It is accordingly agreed that the parties hereto shall be entitled to
an injunction or injunctions to prevent breaches of this Agreement and to
enforce specifically the terms and provisions of this Agreement in any Federal
court located in the State of Delaware or in a Delaware state court, this being
in addition to any other remedy to which they are entitled at law or in equity.
In addition, each of the parties hereto (i) consents to the personal
jurisdiction of any Federal court located in the State of Delaware or any
Delaware state court in any action or proceeding relating to or arising out of
this Agreement (including, with respect to a Veeco Stockholder, such Veeco
Stockholder's Irrevocable Proxy) or any of the transactions contemplated hereby,
(ii) agrees that such party will not attempt to deny or defeat such personal
jurisdiction by motion or other request for leave from any such court, (iii)
agrees that such parties will not seek to
9
change the venue of any such action or proceeding or otherwise to move any such
action or proceeding to another court, whether because of inconvenience of the
forum or otherwise (provided that nothing in this Section will prevent a party
from removing an action or proceeding from a Delaware state court to a Federal
court located in the State of Delaware), (iv) agrees that such party will not
bring any action relating to this Agreement or any Irrevocable Proxy or any of
the transactions contemplated hereby or thereby in any court other than a
Federal court sitting in the State of Delaware or a Delaware state court and (v)
waives any right to trial by jury with respect to any claim or proceeding
related to or arising out of this Agreement or any Irrevocable Proxy or any of
the transactions contemplated hereby or thereby.
7.11. FURTHER ASSURANCES. From time to time, at the other
party's request and without further consideration, each party hereto shall
execute and deliver such additional documents and take all such further lawful
action as may be necessary or desirable to consummate and make effective, in the
most expeditious manner practicable, the transactions contemplated by this
Agreement and the Irrevocable Proxies.
10
IN WITNESS WHEREOF, each party hereto has caused this
Agreement to be signed by its officer thereunto duly authorized as of the date
in the first paragraph of this Agreement.
THE COMPANY
CVC, INC.
By:
-------------------------
Name:
Title:
VEECO STOCKHOLDERS
-----------------------------
Xxxxxx X. Xxxxx
Xxxxxx X. Xxxxx'x
Address for Notice:
-----------------------------
-----------------------------
-----------------------------
Facsimile No.:
--------------
-----------------------------
Xxxx X. Xxxx, Xx.
Xxxx X. Xxxx'x
Address for Notice:
-----------------------------
-----------------------------
-----------------------------
Facsimile No.:
--------------
11
-----------------------------
Xxxxxxx X. Xxxxxx
Xxxxxxx X. Xxxxxx'
Address for Notice:
===============================
===============================
Facsimile No.:___________________
-----------------------------
Xxxxxx X. Xxxxxx
Xxxxxx X. Xxxxxx'x
Address for Notice:
===============================
===============================
Facsimile No.:___________________
12
SCHEDULE A
VEECO STOCKHOLDER NO. OF EXISTING VEECO SHARES HELD
Xxxxxx X. Xxxxx 125,019
Xxxx X. Xxxx, Xx. 1,946
Xxxxxxx X. Xxxxxx 1,232
Xxxxxx X. Xxxxxx 293
-------
128,490
Schedule A - Page 1
EXHIBIT A
VEECO STOCKHOLDERS
POWER OF ATTORNEY AND IRREVOCABLE PROXY
Reference is hereby made to that Certain Veeco Stockholders Voting
Agreement (the "VOTING AGREEMENT"), dated as of the date hereof, of which this
Veeco Stockholders Power of Attorney and Irrevocable Proxy (this "IRREVOCABLE
PROXY") forms a part. Capitalized terms used but not defined in this Irrevocable
Proxy have the respective meanings ascribed to such terms in the Voting
Agreement. This Irrevocable Proxy is being delivered by the undersigned Veeco
Stockholder (the "GRANTING STOCKHOLDER") pursuant to Section 3.3 of the Voting
Agreement.
The undersigned Granting Stockholder hereby irrevocably appoints CVC,
Inc., a Delaware corporation ("CVC"), and each of CVC's officers and other
designees (each such Person, a "PROXYHOLDER") as the Granting Stockholder's
attorney-in-fact and proxy pursuant to the provisions of Section 212 of the
Delaware General Corporation Law, with full power of substitution, in the
Granting Stockholder's name, place and stead, to vote and otherwise act (by
written consent or otherwise) with respect to all of the Veeco Shares now owned
of record or Beneficially Owned by the Granting Stockholder and of which the
Granting Stockholder may hereafter acquire record or Beneficial Ownership, and
any other securities, if any (the "OTHER SECURITIES"), which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of Veeco
(whether annual or special and whether or not an adjourned or postponed meeting)
or consent in lieu of any such meeting or otherwise:
(a) in favor of the Merger, the adoption by Veeco of the
Merger Agreement and the issuance of Veeco Shares in the Merger, other
matters relating to the approval of the terms of the Merger Agreement
and each of the other transactions contemplated by the Merger
Agreement; and
(b) against any proposal or transaction involving Veeco or any
of its Subsidiaries if any such transaction or proposal would in any
manner impede, frustrate, prevent or nullify the Merger, the Merger
Agreement or any of the other transactions contemplated by the Merger
Agreement; PROVIDED, HOWEVER, that nothing set forth in this paragraph
(b) is intended or shall be construed to grant to any Proxyholder the
right to vote or otherwise act (by written consent or otherwise) with
respect to any Veeco Shares or Other Securities owned of record or
Beneficially Owned by the Granting Stockholder (i) against any Superior
Veeco Proposal or related Veeco Acquisition Transaction or (ii) in the
election of any director of Veeco.
THIS POWER OF ATTORNEY AND IRREVOCABLE PROXY IS IRREVOCABLE AND COUPLED
WITH AN INTEREST. The Granting Stockholder hereby revokes all other proxies and
powers of attorney with respect to Veeco Shares and the Other Securities that
the Granting Stockholder may have heretofore granted, and no subsequent proxy or
power of attorney shall be given or written consent executed (and if given or
executed, shall not be effective) by the Granting Stockholder with respect
thereto. All authority herein conferred or agreed to be conferred shall survive
the death or incapacity of the Granting Stockholder and any obligation of the
Granting Stockholder under this Irrevocable Proxy shall be binding upon the
heirs, personal representatives, successors and assigns of the Granting
Stockholder.
Exhibit A - Page 1
This Irrevocable Proxy shall be valid and irrevocable until, and shall
terminate upon, the earlier to occur of (a) the termination of the Merger
Agreement in accordance with its terms and (b) the Effective Time of the Merger.
----------------------------------------------------
(Signature of Granting Stockholder)
----------------------------------------------------
(Printed Name of Granting Stockholder as it Appears
on Certificate Representing Veeco Shares)
----------------------------------
(Date)
Exhibit A - Page 2
EXHIBIT C
CERTIFICATE OF MERGER
OF
VEECO ACQUISITION CORP.
(A DELAWARE CORPORATION)
INTO
CVC, INC.
(A DELAWARE CORPORATION)
PURSUANT TO SECTION 251 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
--------------------------------------------------------------------------------
The undersigned corporations hereby certify as follows:
1. The names of the constituent corporations are Veeco Acquisition
Corp., a Delaware corporation ("ACQUISITION"), and a wholly-owned subsidiary of
Veeco Inc., a Delaware corporation ("VEECO"), and Veeco, Inc., a Delaware
corporation (the "COMPANY").
2. An Agreement and Plan of Merger, dated as of February 29, 2000 (the
"AGREEMENT AND PLAN OF MERGER"), among Veeco, Acquisition and the Company has
been approved, adopted, certified, executed and acknowledged by Acquisition and
the Company in accordance with Section 251 of the General Corporation Law of the
State of Delaware.
3. The Company shall be the surviving corporation, and as the surviving
corporation, shall keep the name Veeco, Inc. (the "SURVIVING CORPORATION").
4. The Certificate of Incorporation of the Company shall constitute the
Certificate of Incorporation of the Surviving Corporation, subject to the
following amendments which shall be effected by the merger:
(a) Article IV of the Certificate of Incorporation is hereby
amended and restated in its entirety to read as follows:
"ARTICLE IV
The Corporation is authorized to issue______shares of
common stock, $.01 par value per share."
1
(b) Article VIII of the Certificate of Incorporation is hereby
deleted in its entirety.
(c) The Articles of the Certificate of Incorporation are
hereby appropriately re-numbered to reflect the deletion of Article
VIII effected hereby.
5. The executed Agreement and Plan of Merger is on file at the office
of the Surviving Corporation located at 000 Xxx Xxxx, Xxxxxxxxx, Xxx Xxxx 00000.
A copy of the Agreement and Plan of Merger will be furnished by the Surviving
Corporation, without cost, to any stockholder of Acquisition or the Company who
sends a written request therefor to the Surviving Corporation at its address set
forth in the preceding sentence.
6. The Surviving Corporation agrees that it may be served with process
in the State of Delaware in any proceeding for enforcement of any obligation of
Acquisition, as well as for enforcement of any obligation of the Surviving
Corporation arising from the merger, including any suit or other proceeding to
enforce the right of any stockholders as determined in appraisal proceedings
pursuant to the provisions of Section 262 of the General Corporation Law of the
State of Delaware. The Surviving Corporation irrevocably appoints the Secretary
of State of the State of Delaware as its agent to accept service of process in
any such suit or other proceeding. A copy of such process shall be mailed by the
Secretary of State of the State of Delaware to Veeco, Inc., 000 Xxx Xxxx,
Xxxxxxxxx, Xxx Xxxx 00000, Attention: Secretary.
Dated: ___________ __, 2000.
CVC, INC.
By:
----------------------------------
Name:
Title:
VEECO ACQUISITION CORP.
By:
----------------------------------
Name:
Title:
2
Exhibit D
EMPLOYMENT AGREEMENT
This EMPLOYMENT AGREEMENT, dated as of February 29, 2000,
is by and between Xxxxxxxxx X. Xxxxxxx (the "Employee") and Veeco
Instruments, Inc., a Delaware corporation (the "Company").
The Company and the Employee hereby agree as follows:
1. EMPLOYMENT. The Company hereby employs the Employee, and the
Employee hereby accepts employment by the Company, upon the terms and
conditions hereinafter set forth.
2. TERM. Subject to the provisions for earlier termination as herein
provided, the employment of the Employee hereunder will be for the period
commencing at the Effective Time of the Agreement and Plan of Merger (the
"Merger Agreement") among CVC, Inc, a Delaware corporation, Veeco
acquisition corporation, and the Company, dated February 29, 2000 (the
"Effective Date") and ending on the third anniversary of such date.
Effective on the first anniversary of the date hereof and on each
successive anniversary date thereafter, the term shall automatically be
extended by an additional one year unless, no later than 90 days prior to
any such anniversary date, either the Company or the Employee gives
written notice to the other that the term will not be extended, in
which case the Employee's employment hereunder shall terminate upon the
expiration of the then-current-term. The period of the Employee's
employment under this Agreement, as it may be terminated or extended from
time to time as provided herein, is referred to hereafter as the "Employment
Period."
3. DUTIES AND RESPONSIBILITIES. The Employee will be employed by the
Company in the positions set forth on Annex A, a copy of which is
attached hereto and the terms of which are incorporated herein by
reference. The Employee will faithfully perform the duties and
responsibilities of each such office, as they may be assigned from time
to time by the Chief Executive Officer of the Company as specified on Annex
A. In addition, during the Employment Period, the Company will make best
efforts to ensure the Employee is a member of the Board.
4. TIME TO BE DEVOTED TO EMPLOYMENT. Except for vacation in accordance
with the Company's policy in effect from time to time and absences due to
temporary illness, the Employee shall devote full time, attention and
energy during the Employment Period to the business of the Company.
During the Employment Period, the Employee will not be engaged in any other
business activity which, in the reasonable judgment of the Board or its
designee, conflicts with the duties of the Employee hereunder, whether
or not such activity is pursued for gain, profit or other pecuniary advantage.
5. COMPENSATION; REIMBURSEMENT.
(a) BASE SALARY. The Company will pay to the Employee an annual
base salary of not less than the amount specified as the Initial Base Salary
on Annex A, payable in accordance with the Company's normal payroll
policy. The Employee's base salary shall be reviewed annually by
the Compensation Committee of the Board (the "Committee") and shall be
subject to increase at the option and sole discretion of the Committee.
(b) BONUS. The Employee shall be eligible to receive, at the sole
discretion of the Committee, an annual cash bonus, with a maximum
target as specified on Annex A, based on the Company's annual business
plan as approved by the board.
(c) BENEFITS; STOCK OPTIONS. In addition to the salary and cash
bonus referred to above, the Employee shall be entitled during the
Employment Period to participate in such employee benefit plans or
programs of the Company, and shall be entitled to such other fringe
benefits, as are from time to time made available by the Company
generally to employees of the Employee's position, tenure, salary, and
other qualifications. Without limiting the generality of the
foregoing, the Employee shall be eligible for such awards, if any, under
the Company's stock option plan as shall be granted to the Employee by the
Committee or other appropriate designee of the Board acting in its sole
discretion. During the Employment Period, the Company will lease an
automobile for the Employee comparable to the automobile leased by CVC,
Inc. for the Employee at the time of the execution of the Merger Agreement.
Except to the extent provided herein, the Employee acknowledges and
agrees that the Company does not guarantee the adoption or continuance
of any particular employee benefit plan or program or other fringe benefit
during the Employment Period, and participation by the Employee in any
such plan or program shall be subject to the rules and regulations applicable
thereto.
(d) EXPENSES. The Company will reimburse the Employee, in
accordance with the practices in effect from time to time for other
officers or staff personnel of the Company, for all reasonable and
necessary traveling expenses and other disbursements incurred by the
Employee for or on behalf of the Company in the performance of the
Employee's duties hereunder, upon presentation by the Employee to the
Company of appropriate vouchers or documentation. Such expenses shall
include, without limitation, reasonable expenses to maintain an apartment
in any city in which Employee is required to spend more than 30 days in any
calendar year.
6. DEATH; DISABILITY. If the Employee dies or is incapacitated or
disabled by accident, sickness or otherwise, so as to render the Employee
mentally or physically incapable of performing the services required
to be performed by the Employee under this Agreement for a period that would
entitle the Employee to qualify for long-term disability benefits under the
Company's then-current long-term disability insurance program or, in
the absence of such a program, for a period of 90 consecutive days or
longer (such condition being herein referred to as a "Disability"), then
(i) in the case of the Employee's death, the Employee's employment shall
be deemed to terminate on the date of the Employee's death or (ii) in the
case of a Disability, the Company, at its option, may terminate the
employment of the Employee under this Agreement immediately upon giving
the Employee notice to that effect. Disability shall be determined by
the Board or the Board's designee. In the case of a Disability,
until the Company shall have terminated the Employee's employment
hereunder in accordance with the foregoing, the Employee shall be
entitled to receive compensation provided for herein notwithstanding
any such physical or mental disability.
7. TERMINATION FOR CAUSE. The Company may, with the approval of a
majority of the Board, terminate the employment of the Employee hereunder
at any time during the Employment Period for "cause" (such termination
being hereinafter called a "Termination for Cause") by giving the Employee
notice of such termination, upon the giving of which such termination will
take effect immediately. For purposes of this Agreement, "cause" means
(i) the Employee's willful and substantial misconduct, (ii) the
Employee's repeated, after written notice from the Company, neglect of
duties or failure to act which can reasonably be expected to affect
materially and adversely the business or affairs of the Company or any
subsidiary or affiliate thereof, (iii) the Employee's material breach
of any of the agreements contained in Sections 13, 14, 15 or 16 hereof,
(iv) the commission by the Employee of any material fraudulent act with
respect to the business and affairs of the Company or any subsidiary or
affiliate thereof or (v) the Employee's conviction of (or plea of NOLO
CONTENDERE to) a crime constituting a felony.
8. TERMINATION WITHOUT CAUSE. The Company may terminate the employment
of the Employee hereunder at any time without "cause" (such termination
being hereinafter called a "Termination Without Cause") by giving the
Employee notice of such termination, upon the giving of which such
termination will take effect on the date specified on such notice which shall
not be later than 30 days from the date such notice is given.
9. GOOD REASON. For purposes of this Agreement, termination for "Good
Reason" shall mean termination by the Employee of her employment with the
Company hereunder based on:
(i) any diminution in the Employee's position, title,
responsibilities, authority or reporting responsibilities;
(ii) the Employee is not at any time during the Employment Period a
member of the Board;
(iii) any person other than the Employee succeeds Xxxxxx X. Xxxxx as
Chief Executive Officer of the Company; or
(iv) the breach by the Company of any of its material obligations
under this Agreement.
10. VOLUNTARY TERMINATION. Any termination of the employment of the
Employee hereunder, otherwise than as a result of death or Disability, a
Termination For Cause, a Termination Without Cause or a termination for Good
Reason will be deemed to be a "Voluntary Termination." A Voluntary
Termination will be deemed to be effective
5
immediately upon such termination or, at the Company's option, up to 30 days
following a notice of voluntary termination given by the Employee.
11. EFFECT OF TERMINATION OF EMPLOYMENT.
(a) TERMINATION FOR CAUSE, VOLUNTARY TERMINATION. Upon a Termination
for Cause or a Voluntary Termination, neither the Employee nor the Employee's
beneficiaries or estate will have any further rights or claims against the
Company under this Agreement except the right to receive (i) the unpaid
portion of the base salary provided for in Section 5(a) hereof, computed on a
PRO RATA basis to the date of termination, (ii) payment of her previously
accrued but unpaid rights that are then payable in accordance with the terms
of any incentive compensation, stock option, retirement, employee welfare or
other employee benefit plans or programs of the Company in which the
Executive is then participating in accordance with Sections 5(b) and 5(c)
hereof and (iii) reimbursement for any expenses for which the Employee shall
not have theretofore been reimbursed as provided in Section 5(d) hereof.
(b) TERMINATION WITHOUT CAUSE; TERMINATION FOR GOOD REASON. Upon a
Termination Without Cause or a termination for Good Reason, (i) the Employee
shall be entitled to receive the same payments and other rights as provided
for in Sections 11(a) hereof, (ii) the Employee shall be entitled to receive
a severance payment in the form a cash lump sum, paid within 15 days of the
date of termination, with the amount of such payment to be the aggregate
amount of the Employee's base salary as in effect immediately prior to such
termination payable over the period of months specified in Annex A, (iii) any
options held by the Employee as of such effective date to purchase shares of
the Company's stock that were not vested and exercisable as of such date of
termination shall become immediately and fully vested and exercisable as of
such date of termination and (iv) the
6
Employee shall retain the right to exercise any options to purchase shares of
the Company's stock until the earlier of (a) 12 months following the date of
such termination or (b) the expiration of the original full term of each such
option.
(c) DEATH; DISABILITY. In the event Employee employment is
termination hereunder on account of death or Disability, (i) the Employee
shall be entitled to receive the same payments and other rights as provided
for in Sections 11(a) hereof, (ii) the Employee shall be entitled to receive
a severance payment in the form a cash lump sum, paid within 15 days of the
date of termination, with the amount of such payment to be the aggregate
amount of the Employee's base salary as in effect immediately prior to such
termination payable over 12 months.
12. CHANGE IN CONTROL PROVISIONS.
(a) EFFECT OF CHANGE IN CONTROL. In the event of a Change in Control
during the Employment Period, all options held by the Employee to purchase
shares of the Company's stock that are not then vested and exercisable in
accordance with the terms of such options or the terms of any Company stock
option plan shall become immediately and fully vested and exercisable as of
the effective date of the Change in Control; PROVIDED, HOWEVER, that no such
vesting shall occur if provision has been made in writing in connection with
such transaction for (a) the continuation of such plan and/or the assumption
of such options by a successor corporation (or a parent or subsidiary
thereof) or (b) the substitution for such options of new options covering the
stock of a successor corporation (or a parent or subsidiary thereof), with
appropriate adjustments as to the number and kinds of shares and exercise
prices. In the event of any such continuation, assumption or substitution,
such plan and/or such options shall continue in the manner and under the
terms so provided.
7
(b) DEFINITION OF CHANGE IN CONTROL. For purposes of this Agreement,
a "Change in Control" shall be deemed to have occurred upon:
(i) an acquisition subsequent to the date hereof by any person,
entity or group (within the meaning of Section 13(d)(3) or 14(d)(2) of the
Securities Exchange Act of 1934, as amended (the "Exchange Act")) (a
"Person"), of beneficial ownership (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of 30% or more of either (A) the then
outstanding shares of common stock of the Company ("Common Stock") or (B) the
combined voting power of the then outstanding voting securities of the
Company entitled to vote generally in the election of directors (the
"Outstanding Company Voting Securities"); excluding, however, the following:
(1) any acquisition directly from the Company, other than an acquisition by
virtue of the exercise of a conversion privilege unless the security being so
converted was itself acquired directly from the Company, (2) any acquisition
by the Company and (3) any acquisition by an employee benefit plan (or
related trust) sponsored or maintained by the Company;
(ii) a change in the composition of the Board such that during
any period of two consecutive years, individuals who at the beginning of such
period constitute the Board, and any new director (other than a director
designated by a person who has entered into an agreement with the Company to
effect a transaction described in clause (i), (iii) or (iv) of this
paragraph) whose election by the Board or nomination for election by the
Company's stockholders was approved by a vote of at least two-thirds of the
directors then still in office who either were directors at the beginning of
the period or whose election or nomination for election was previously so
8
approved, cease for any reason to constitute at least a majority of the
members thereof;
(iii) the approval by the stockholders of the Company of a
merger, consolidation, reorganization or similar corporate transaction,
whether or not the Company is the surviving corporation in such transaction,
in which outstanding shares of Common Stock are converted into (A) shares of
stock of another company, other than a conversion into shares of voting
common stock of the successor corporation (or a holding company thereof)
representing 80% of the voting power of all capital stock thereof outstanding
immediately after the merger or consolidation or (B) other securities (of
either the Company or another company) or cash or other property;
(iv) the approval by the stockholders of the Company of (A) the
sale or other disposition of all or substantially all of the assets of the
Company or (B) a complete liquidation or dissolution of the Company; or
(v) the adoption by the Board of a resolution to the effect
that any person has acquired effective control of the business and affairs of
the Company.
13. NONDISCLOSURE OF INFORMATION. The Employee will not, at any time
during or after the Employment Period, disclose to any person, firm,
corporation or other business entity, except as required by law, any
non-public information concerning the business, products, clients or affairs
of the Company or any subsidiary or affiliate thereof for any reason or
purpose whatsoever, nor will the Employee make use of any of such non-public
information for personal purposes or for the benefit of any person, firm,
corporation or other business entity except the Company or any subsidiary or
affiliate thereof.
9
14. COMPANY RIGHT TO INVENTIONS. The Employee will promptly disclose,
grant and assign to the Company, for its sole use and benefit, any and all
inventions, improvements, technical information and suggestions relating in
any way to the business of the Company which the Employee may develop or
acquire during the Employment Period (whether or not during usual working
hours), together with all patent applications, letters patent, copyrights and
reissues thereof that may at any time be granted for or upon any such
invention, improvement or technical information. In connection therewith:
(i) the Employee shall, without charge, but at the expense of the
Company, promptly at all times hereafter execute and deliver such
applications, assignments, descriptions and other instruments as may be
necessary or proper in the opinion of the Company to vest title to any such
inventions, improvements, technical information, patent applications,
patents, copyrights or reissues thereof in the Company and to enable it to
obtain and maintain the entire right and title thereto throughout the world;
and
(ii) the Employee shall render to the Company, at its expense
(including a reasonable payment for the time involved in case the Employee is
not then in its employ), all such assistance as it may require in the
prosecution of applications for said patents, copyrights or reissues thereof,
in the prosecution or defense of interferences which may be declared
involving any said applications, patents or copyrights and in any litigation
in which the Company may be involved relating to any such patents,
inventions, improvements or technical information.
15. NON-COMPETITION.
10
(a) Employee hereby agrees that for the duration of Employee's
employment with the Company, Employee will not, without the consent of the
Company, directly or indirectly, engage or invest in, own, manage, operate,
finance, control or participate in the ownership, management, operation,
financing or control of, be employed by, associated with, or in any manner
connected with, lend Employee's name to, lend Employee's credit to or render
services or advice to, any business whose products or activities compete in
whole or in part with the former, current or currently contemplated products
or activities of the Company or any of its subsidiaries, in any country in
which the Company or any of its subsidiaries conducts business; PROVIDED,
HOWEVER, that Employee may purchase or otherwise acquire up to (but not more
than) one percent of any class of securities of any enterprise (but without
otherwise participating in the activities of such enterprise) if such
securities are listed on any national or regional securities exchange or have
been registered under Section 12(g) of the Securities Exchange Act of 1934,
as amended. Employee agrees that this covenant is reasonable with respect to
its duration, geographical area, and scope.
(b) Employee hereby agrees that for a period of two (2) years
following the termination of Employee's employment with the Company, Employee
will not, directly or indirectly, engage or invest in, own, manage, operate,
finance, control or participate in the ownership, management, operation,
financing, or control of, be employed by, associated with, or in any manner
connected with, lend Employee's name to, lend Employee's credit to or render
services or advice to, any business whose products or activities compete in
whole or in part with the former, current or currently contemplated products
or activities of the Company or any of its subsidiaries, in any state of the
United States or in any other country in which the Company or any of its
11
subsidiaries sells products or conducts business; PROVIDED, HOWEVER, that
Employee may purchase or otherwise acquire up to (but not more than) one
percent of any class of securities of any enterprise (but without otherwise
participating in the activities of such enterprise) if such securities are
listed on any national or regional securities exchange or have been
registered under Section 12(g) of the Securities Exchange Act of 1934, as
amended. Employee agrees that this covenant is reasonable with respect to its
duration, geographical area, and scope.
(c) In the event of a breach by Employee of any covenant set forth
in this Section 15, the term of such covenant will be extended by the period
of the duration of such breach.
(d) For a period of two (2) years following the termination of
Employee's employment with the Company, Employee will, within ten days after
accepting any employment, advise the Company of the identity of any employer
of Employee. The Company may serve notice upon each such employer that
Employee is bound by this Agreement and furnish each such employer with a
copy of this Agreement or relevant portions hereof.
16. NON-SOLICITATION.
(a) Employee hereby agrees that, for the duration of Employee's
employment with the Company and for a period of two (2) years following the
termination of Employee's employment with the Company:
(i) Employee will not, directly or indirectly, either for
itself or any other person: (A) induce or attempt to induce any employee of
the Company or any of its subsidiaries to leave the employ of the Company or
such subsidiary, (B) in any
12
way interfere with the relationship between the Company and its subsidiaries
and any employee of the Company or any of its subsidiaries, (C) employ, or
otherwise engage as an employee, independent contractor or otherwise, any
current or former employee of the Company or any of its subsidiaries, other
than such former employees who have not worked for the Company or any of its
subsidiaries for more than one year or (D) induce or attempt to induce any
customer, supplier, licensee or business relation of the Company or any of
its subsidiaries to cease doing business with the Company or such subsidiary,
or in any way interfere with the relationship between the Company and its
subsidiaries and any customer, supplier, licensee or business relation of the
Company or any of its subsidiaries; and
(ii) Employee will not, directly or indirectly, either for
herself or any other person, solicit the business of any person known to
Employee to be a customer of the Company or any of its subsidiaries, whether
or not Employee had personal contact with such person, with respect to
products or activities which compete in whole or in part with the former,
current or currently contemplated products or activities of the Company and
its subsidiaries or the products or activities of the Company and its
subsidiaries in existence or contemplated at the time of termination of
Employee's employment.
(b) In the event of a breach by Employee of any covenant set forth
in this Section 16, the term of such covenant will be extended by the period
of the duration of such breach.
17. ENFORCEMENT. It is the desire and intent of the parties hereto that
the provisions of this Agreement be enforceable to the fullest extent
permissible under the laws
13
and public policies applied in each jurisdiction in which enforcement is
sought. Accordingly, to the extent that a restriction contained in this
Agreement is more restrictive than permitted by the laws of any jurisdiction
where this Agreement may be subject to review and interpretation, the terms
of such restriction, for the purpose only of the operation of such
restriction in such jurisdiction, will be the maximum restriction allowed by
the laws of such jurisdiction and such restriction will be deemed to have
been revised accordingly herein.
18. REMEDIES; SURVIVAL. (a) A breach of the obligations imposed on
Employee in Sections 13, 14, 15, and 16 hereof may not be one which is
capable of being easily measured by monetary damages. Consequently, Employee
specifically agrees that Sections 13, 14, 15, and 16 may be enforced by
injunctive relief. Further, Employee specifically agrees that, in addition to
such injunctive relief, and not in lieu of it, the Company may also bring
suit for damages incurred by the Company as a result of a breach of
Employee's obligations under Sections 13, 14, 15, and 16.
(b) Notwithstanding anything contained in this Agreement to the
contrary, the provisions of Sections 13, 14, 15 and 16 hereof will survive
the expiration or other termination of this Agreement until, by their terms,
such provisions are no longer operative.
18. NOTICES. Notices and other communications hereunder will be in
writing and will be delivered personally or sent by air courier or first
class certified or registered mail, return receipt requested and postage
prepaid, addressed as follows:
if to the Employee: as specified in Annex A
14
and if to the Company: Veeco Instruments, Inc.
Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chief Executive Officer
All notices and other communications given to any party hereto in accordance
with the provisions of this Agreement will be deemed to have been given on
the date of delivery, if personally delivered; on the business day after the
date when sent, if sent by air courier; and on the third business day after
the date when sent, if sent by mail, in each case addressed to such party as
provided in this Section 18 or in accordance with the latest unrevoked
direction from such party.
19. BINDING AGREEMENT; BENEFIT. The provisions of this Agreement will
be binding upon, and will inure to the benefit of, the respective heirs,
legal representatives and successors of the parties hereto.
20. GOVERNING LAW. This Agreement will be governed by, and construed
and enforced in accordance with, the laws of the State of New York, without
reference to conflict of law principles.
21. WAIVER OF BREACH. The waiver by either party of a breach of any
provision of this Agreement by the other party must be in writing and will
not operate or be construed as a waiver of any subsequent breach by such
other party.
22. ENTIRE AGREEMENT; AMENDMENTS. This Amendment will be effective at
the Effective Time of the Merger Agreement (the "Effective Time") and, in the
case the Effective Time does not occur, this Agreement will be of no force or
effect. This Agreement (including Annex A) contains the entire agreement
between the parties with respect to the subject matter hereof and supersedes
all prior agreements or understandings among the parties with respect
thereof. This Agreement will not effect the employment agreement between the
Employee and CVC, Inc., dated December 15, 1997 (the "Employment Agreement")
prior to the Effective Time, but will supersede the Employment Agreement
following the Effective Time. This Agreement may be amended only by an
agreement in writing signed by the parties hereto.
15
23. HEADINGS. The section headings contained in this Agreement are
for reference purposes only and will not affect in any way the meaning or
interpretation of this Agreement.
24. SEVERABILITY. Any provision of this Agreement that is prohibited
or unenforceable in any jurisdiction will, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition or
unenforceability in any jurisdiction will not invalidate or render
unenforceable such provision in any other jurisdiction.
25. ASSIGNMENT. This Agreement is personal in its nature and the
parties hereto shall not, without the consent of the other, assign or
transfer this Agreement or any rights or obligations hereunder; PROVIDED,
that the provisions hereof (including, without limitation, Sections 13, 14,
15, and 16) will inure to the benefit of, and be binding upon, each successor
of the Company, whether by merger, consolidation, transfer of all or
substantially all of its assets or otherwise.
IN WITNESS WHEREOF, the parties have duly executed this Agreement as of the
date first above written.
EMPLOYEE VEECO INSTRUMENTS, INC.
------------------------- -------------------------
By:
Title:
16
ANNEX A
to
Employment Agreement
Name of Employee: Xxxxxxxxx X. Xxxxxxx
1. Position: President and Chief Operating Officer
2. Board of Directors' Initial
Designee to whom Employee
Shall Report: Chief Executive Officer
3. Initial Base Salary: $300,000
4. Target Bonus $150,000
4. Number of months used to
calculate lump sum severance
payment in the event of a
Termination Without Cause
or for Good Reason 24 months
5. Employee's address for notices: 000 Xxxx Xxxx
Xxxxxxxxx, XX 00000
EXHIBIT E
COMPANY
AFFILIATES AGREEMENT
This COMPANY AFFILIATES AGREEMENT (this "AFFILIATES AGREEMENT") is
entered into as of _________ ___, 2000, between Veeco Inc., a Delaware
corporation ("VEECO"), and the undersigned stockholder (the "STOCKHOLDER") of
CVC, Inc., a Delaware corporation (the "COMPANY").
RECITALS
A. Veeco, Veeco Acquisition Corp., a newly-formed subsidiary of Veeco
("ACQUISITION"), and the Company plan to enter into or have entered into an
Agreement and Plan of Merger (the "MERGER AGREEMENT"), pursuant to which
Acquisition will be merged with and into the Company (the "MERGER").
B. Upon consummation of the Merger and in connection therewith, the
undersigned Stockholder will become the owner of shares of common stock, $0.01
par value per share, of Veeco ("VEECO 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,
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 Company Affiliates Agreement, it is hereby agreed as follows:
1. The undersigned Stockholder hereby agrees that:
(a) The undersigned Stockholder may be deemed to be (but does
not hereby admit to be) an "affiliate" of the Company 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 ("RELEASE NO. 130"), of the
Securities and Exchange Commission (the "SEC").
(b) The undersigned Stockholder will not sell, exchange,
transfer, pledge, dispose of or otherwise reduce the undersigned Stockholder's
risk relative to the Veeco Shares or any part thereof until such time after the
Effective Time (as such term is defined in the Merger Agreement) of the Merger
as financial results covering at least thirty (30) days of the combined
operations of Veeco and the Company after the Effective Time of the Merger have
been, within the meaning of said Release No. 130, filed by Veeco with the SEC or
published by Veeco 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 the Company
and Veeco. Veeco agrees to notify the undersigned Stockholder
promptly upon making such filing or publication. The undersigned Stockholder
will not, during the thirty (30) day period prior to the Effective Time of the
Merger, sell, exchange, transfer, pledge, dispose of or otherwise reduce the
undersigned Stockholder's risk relative to the Veeco Shares or any part thereof
(including any disposition within such period of the undersigned Stockholder's
shares of Company Common Stock (as defined in the Merger Agreement)). Except as
otherwise set forth in APPENDIX A hereto, the undersigned Stockholder has not
engaged in a sale or other disposition of any shares of Company Common Stock
since January 31, 2000.
(c) The undersigned Stockholder undertakes and agrees to
indemnify and hold harmless Veeco, Acquisition, the Company and each of their
respective current and future officers and directors and each person, if any,
who now or hereafter controls or may control Veeco, Acquisition or the Company
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 Stockholder in subsection (b) of this Section
1, or caused by or attributable to the undersigned Stockholder, or the
undersigned Stockholder'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
Stockholder, in connection with or relating to any offer, sale, pledge, transfer
or other disposition of any of the Veeco Shares or shares of Company Common
Stock by or on behalf of the undersigned Stockholder, 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
Stockholder may otherwise have to the Indemnified Persons.
(d) 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 Stockholder. The omission by the Indemnified Person so to notify the
undersigned Stockholder of any such Claim shall not relieve the undersigned
Stockholder from any liability the undersigned Stockholder 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 Stockholder to reduce or defend
against such liability was actually adversely affected by such omission. The
omission of the Indemnified Person so to notify the undersigned Stockholder of
any such Claim shall not relieve the undersigned Stockholder from any liability
the undersigned Stockholder may have otherwise than hereunder. The Indemnified
Persons and the undersigned Stockholder shall cooperate with and assist one
another in the defense of any Claim and any action, suit or proceeding arising
in connection therewith.
2. 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.
3. NOTICES. All notices, requests, demands or other communications
that are required
2
or may be given pursuant to the terms of this Affiliates Agreement shall be in
writing and shall be deemed to have been duly given if delivered by hand or
mailed by registered or certified mail, postage prepaid, as follows:
(a) If to the Stockholder, at the address set forth below the
Stockholder's signature at the end hereof.
(b) If to Veeco, the Company or the other Indemnified Persons:
x/x Xxxxx Xxx.
Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman, President and Chief Executive
Officer
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
or to such other address as any party hereto or any Indemnified Person may
designate for itself by notice given as herein provided.
4. 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.
5. 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 successor and assigns. As used
herein, the term "successors and assigns" shall mean, where the context so
permits, heirs, executors, administrators, trustees and successor trustees, and
personal and other representatives.
6. GOVERNING LAW. This Affiliates Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of the
State of New York.
7. TERMINATION; SEVERABILITY. This Affiliates Agreement shall terminate
in the event that the Merger Agreement is terminated in accordance with its
terms. If a court of competent
3
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.
8. EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Company
Affiliates Agreement.
4
IN WITNESS WHEREOF, the parties have caused this Company Affiliates
Agreement to be executed as of the date first above written.
VEECO INC. STOCKHOLDER
By:--------------------------------------- --------------------------------
Name: Xxxxxxx X. Xxxxxxx (Signature)
Title: Vice President and General Counsel
---------------------------------
(Print Name)
---------------------------------
(Print Address)
---------------------------------
(Print Telephone Number)
5
APPENDIX A TO COMPANY AFFILIATES AGREEMENT
6
EXHIBIT F
VEECO
AFFILIATES AGREEMENT
This VEECO AFFILIATES AGREEMENT (this "AFFILIATES AGREEMENT") is
entered into as of ___________ ___, 2000, between Veeco Inc., a Delaware
corporation ("VEECO"), and the undersigned (the "STOCKHOLDER"), who is a
director, officer or holder of shares of common stock, $.01 par value per share
(the "VEECO SHARES"), of Veeco.
RECITALS
A. Veeco, Veeco Acquisition Corp., a newly-formed subsidiary of Veeco
("ACQUISITION"), and CVC, Inc., a Delaware corporation ("TARGET"), plan to enter
into or have entered into an Agreement and Plan of Merger (the "MERGER
AGREEMENT"), pursuant to which Acquisition will be merged with and into Target
(the "MERGER").
B. 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,
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 Veeco Affiliates Agreement, it is hereby agreed as follows:
1. The undersigned Stockholder hereby agrees that:
(a) The undersigned Stockholder may be deemed to be (but does
not hereby admit to be) an "affiliate" of Veeco 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 ("RELEASE NO. 130"), of the
Securities and Exchange Commission (the "SEC").
(b) The undersigned Stockholder will not sell, exchange,
transfer, pledge, dispose of or otherwise reduce the undersigned Stockholder's
risk relative to the Veeco Shares or any part thereof until such time after the
Effective Time (as such term is defined in the Merger Agreement) of the Merger
as financial results covering at least thirty (30) days of the combined
operations of Veeco and Target after the Effective Time of the Merger have been,
within the meaning of said Release No. 130, filed by Veeco with the SEC or
published by Veeco 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
Veeco. Veeco agrees to notify the undersigned Stockholder promptly upon making
such filing or publication. The undersigned Stockholder will not, during the
thirty (30) day period prior to the Effective Time of the Merger, sell,
exchange, transfer, pledge, dispose of or otherwise reduce the undersigned
Stockholder's risk relative to the Veeco Shares or any part thereof. Except as
otherwise set forth in APPENDIX A hereto, the undersigned
Stockholder has not engaged in a sale or other disposition of any Veeco Shares
since January 31, 2000.
(c) The undersigned Stockholder undertakes and agrees to
indemnify and hold harmless Veeco, Acquisition, 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 Veeco , Acquisition 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 Stockholder in subsection (b) of this Section
1, or caused by or attributable to the undersigned Stockholder, or the
undersigned Stockholder'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
Stockholder, in connection with or relating to any offer, sale, pledge, transfer
or other disposition of any of the Veeco Shares by or on behalf of the
undersigned Stockholder, 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 Stockholder may otherwise have
to the Indemnified Persons.
(d) 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 Stockholder. The omission by the Indemnified Person so to notify the
undersigned Stockholder of any such Claim shall not relieve the undersigned
Stockholder from any liability the undersigned Stockholder 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 Stockholder to reduce or defend
against such liability was actually adversely affected by such omission. The
omission of the Indemnified Person so to notify the undersigned Stockholder of
any such Claim shall not relieve the undersigned Stockholder from any liability
the undersigned Stockholder may have otherwise than hereunder. The Indemnified
Persons and the undersigned Stockholder shall cooperate with and assist one
another in the defense of any Claim and any action, suit or proceeding arising
in connection therewith.
2. 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.
3. NOTICES. All notices, requests, demands or other communications that
are required or may be given pursuant to the terms of this Affiliates Agreement
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed by registered or certified mail, postage prepaid, as follows:
(a) If to the Stockholder, at the address set forth below the
Stockholder's signature at the end hereof.
2
(b) If to Veeco, Target or the other Indemnified Persons:
x/x Xxxxx Xxx.
Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman, President and Chief Executive
Officer
Fax: (000) 000-0000
Tel: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxxxx, Esq.
Fax: (000) 000-0000
Tel: (000) 000-0000
or to such other address as any party hereto or any Indemnified Person may
designate for itself by notice given as herein provided.
4. 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.
5. 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 successor and assigns. As used
herein, the term "successors and assigns" shall mean, where the context so
permits, heirs, executors, administrators, trustees and successor trustees, and
personal and other representatives.
6. GOVERNING LAW. This Affiliates Agreement shall be governed by and
construed, interpreted and enforced in accordance with the internal laws of the
State of New York.
7. TERMINATION; SEVERABILITY. This Affiliates Agreement shall terminate
in the event that the Merger Agreement is terminated in accordance with its
terms. 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.
8. EFFECT OF HEADINGS. The section headings herein are for convenience
only and shall not affect the construction or interpretation of this Affiliates
Agreement.
3
IN WITNESS WHEREOF, the parties have caused this Veeco Affiliates
Agreement to be executed as of the date first above written.
VEECO INC. STOCKHOLDER
By:--------------------------------------- ---------------------------------
Name: Xxxxxxx X. Xxxxxxx (Signature)
Title: Vice President and General Counsel
---------------------------------
(Print Name)
---------------------------------
(Print Address)
---------------------------------
(Print Telephone Number)
4
APPENDIX A TO VEECO AFFILIATES AGREEMENT
5
