Exhibit 10.3
SUPPLEMENT NO. 1
TO THE
COLLATERAL PLEDGE
AND SECURITY AGREEMENT
Dated as of January 3, 2002
among
VEECO INSTRUMENTS INC.
as Pledgor,
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee,
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Collateral Agent, and
STATE STREET BANK AND TRUST COMPANY,
as Securities Intermediary
SUPPLEMENT NO. 1 dated as of January 3, 2002, to the COLLATERAL PLEDGE
AND SECURITY AGREEMENT, dated as of December 21, 2001 (as supplemented from time
to time, the "Pledge Agreement"), among Veeco Instruments Inc., a Delaware
corporation (the "Pledgor"), State Street Bank and Trust Company, N.A., a
national banking association, as trustee (in such capacity, the "Trustee") for
the holders (the "Holders") of the Notes (as defined below) issued by the
Pledgor under the Indenture (as defined below), State Street Bank and Trust
Company, N.A., a national banking association, as collateral agent (in such
capacity, the "Collateral Agent"), and State Street Bank and Trust Company, a
Massachusetts trust company, as securities intermediary (the "Securities
Intermediary"). Capitalized terms used herein and not otherwise defined herein
shall have the meanings assigned to such terms in the Pledge Agreement.
WHEREAS, the Pledgor and Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx
Incorporated, Xxxxxxx Xxxxx Barney Inc. and Xxxxxx Xxxxxx Partners LLC
(collectively, the "Initial Purchasers") are parties to a Purchase Agreement
dated December 18, 2001 (the "Purchase Agreement"), pursuant to which the
Pledgor has granted the Initial Purchasers an overallotment option to purchase
up to $20 million aggregate principal amount of the Pledgor's 4 1/8% Convertible
Subordinated Notes due 2008 (the "Notes");
WHEREAS, the Pledgor and the Trustee have entered into that certain
Indenture dated as of December 21, 2001 (as amended, restated, supplemented or
otherwise modified from time to time, the "Indenture"), pursuant to which the
Pledgor is issuing $20 million aggregate principal amount of Notes on the date
hereof;
WHEREAS, pursuant to the Indenture and the Pledge Agreement, the
Pledgor is required to purchase, or cause the purchase of, on or prior to the
relevant Date of Delivery (as defined in the Purchase Agreement), and pledge to
the Collateral Agent for the benefit of the Trustee and the Holders, on such
relevant Date of Delivery, Pledged Securities in an amount that will be
sufficient upon receipt of scheduled interest and principal payments of such
securities, as determined by the Pledgor and verified, as to mathematical
accuracy, in the written opinion of Ernst & Young LLP (in substantially the form
attached as Exhibit A to the Pledge Agreement) or another nationally recognized
firm of independent public accountants selected by the Pledgor and delivered to
the Trustee, to provide for payment in full of the first six scheduled interest
payments due on the Notes;
WHEREAS, the Pledgor, the Trustee, the Collateral Agent and the
Securities Intermediary have entered into the Pledge Agreement, pursuant to
which the Pledgor has previously pledged certain Pledged Securities to the
Collateral Agent for the benefit of the Holders in connection with the purchase
by the Initial Purchasers of $200 million aggregate principal amount of Notes;
WHEREAS, the Initial Purchasers have exercised their overallotment
option in full under the Purchase Agreement and are purchasing on the date
hereof $20 million aggregate principal amount of Notes;
WHEREAS, it is a condition precedent to the purchase of the Notes by
the Initial Purchasers pursuant to the overallotment option granted in the
Purchase Agreement that the
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Pledgor apply certain of the proceeds from the sale of such Notes to purchase
the Additional Pledged Securities (as defined below) and deliver such Additional
Pledged Securities to the Securities Intermediary for credit to the Collateral
Account to be held subject to the terms of the Pledge Agreement and shall have
granted the assignment and security interest and made the pledge and assignment
contemplated by the Pledge Agreement;
NOW, THEREFORE, in consideration of the premises herein contained, and
in order to induce the Initial Purchasers to purchase the Notes, the Pledgor,
the Trustee, the Collateral Agent and the Securities Intermediary hereby agree,
for the benefit of the Initial Purchasers and for the ratable benefit of the
Holders, as follows:
SECTION 1. PLEDGE AND GRANT OF SECURITY INTEREST. Pursuant to Section
1.3 of the Pledge Agreement, as security for the prompt and complete payment and
performance when due (whether at the stated maturity, by acceleration or
otherwise) of the Obligations, the Pledgor hereby assigns and pledges to the
Collateral Agent for the benefit of the Trustee and the ratable benefit of the
Holders, and hereby grants to the Collateral Agent for the benefit of the
Trustee and for the ratable benefit of the Holders, a lien on and security
interest in all of the Pledgor's right, title and interest in, to and under the
U.S. Government Obligations identified by CUSIP No. in Schedule I hereto (the
"Additional Pledged Securities") and the certificates representing the
Additional Pledged Securities, the scheduled payments of principal and interest
thereon which will be sufficient to provide for payment in full of the first six
scheduled interest payments due on the Notes being issued by the Pledgor to the
Initial Purchasers on the date hereof. The Pledge Agreement is hereby
incorporated herein by reference.
SECTION 2. SUPPLEMENT TO SCHEDULE I. The parties hereto agree that
Schedule I to the Pledge Agreement shall be supplemented by Schedule I hereto.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF THE PLEDGOR. The Pledgor
hereby represents and warrants to the Trustee, the Collateral Agent and the
Securities Intermediary that:
(a) Each of this Supplement and the Pledge Agreement as
supplemented hereby has been duly authorized, validly executed
and delivered by the Pledgor and (assuming the due
authorization and valid execution and delivery of this
Supplement and the Pledge Agreement by each of the Trustee,
the Collateral Agent and the Securities Intermediary)
constitutes a valid and binding agreement of the Pledgor,
enforceable against the Pledgor in accordance with its terms,
except as (i) the enforceability hereof and thereof may be
limited by bankruptcy, insolvency, fraudulent conveyance,
preference, reorganization, moratorium or similar laws now or
hereafter in effect relating to or affecting the rights or
remedies of creditors generally, (ii) the availability of
equitable remedies may be limited by equitable principles of
general applicability and the discretion of the court before
which any proceeding therefor may be brought, (iii) the
exculpation provisions and rights to indemnification under the
Pledge Agreement may be limited by U.S. federal and state
securities laws and public policy considerations and (iv) the
waiver of rights and defenses contained in Section 13(b),
Section 18.11 and Section 18.15 of the Pledge Agreement may be
limited by applicable law; and
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(b) the representations and warranties of the Pledgor set forth in
Section 7 of the Pledge Agreement are true and correct in all
material respects with the same effect as if made on and as of
the date hereof.
SECTION 4. EXECUTION IN COUNTERPARTS. This Supplement may be signed in
two or more counterparts, each of which shall be deemed an original, but all of
which shall together constitute one and the same agreement. This Supplement
shall become effective when the Collateral Agent shall have received
counterparts of this Supplement that, when taken together, bear the signatures
of the Pledgor, the Trustee, the Collateral Agent and the Securities
Intermediary.
SECTION 5. EFFECT OF SUPPLEMENT. Except as expressly supplemented
hereby, the Pledge Agreement shall remain in full force and effect in the form
initially executed and delivered by the parties thereto.
SECTION 6. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK, EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, AND, EXCEPT TO THE
EXTENT THAT THE VALIDITY OR PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK, ANY DISPUTE ARISING OUT
OF, CONNECTED WITH, RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED
BETWEEN THE PLEDGOR, THE TRUSTEE, THE COLLATERAL AGENT AND THE HOLDERS IN
CONNECTION WITH THIS PLEDGE AGREEMENT, AND WHETHER ARISING IN CONTRACT, TORT,
EQUITY OR OTHERWISE, SHALL BE RESOLVED IN ACCORDANCE WITH THE LAWS OF THE STATE
OF NEW YORK. NOTWITHSTANDING THE FOREGOING, THE MATTERS IDENTIFIED IN 31 C.F.R.
SECTIONS 357.10 AND 357.11 (AS IN EFFECT ON THE DATE OF THIS SUPPLEMENT) SHALL
BE GOVERNED SOLELY BY THE LAWS SPECIFIED THEREIN AND THE MATTERS IDENTIFIED IN
SECTION 9305(a)(3) OF THE N.Y. UNIFORM COMMERCIAL CODE WILL BE GOVERNED BY THE
LAWS OF THE STATE OF NEW YORK.
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IN WITNESS WHEREOF, the Pledgor, the Trustee, the Collateral Agent and
the Securities Intermediary have each caused this Supplement to be duly executed
and delivered as of the date first above written.
Pledgor:
VEECO INSTRUMENTS INC.
By: /s/ Xxxx X. Xxxx, Xx.
---------------------------------------------
Name: Xxxx X. Xxxx, Xx.
Title: Executive Vice President, Chief
Financial Officer and Secretary
Trustee:
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Trustee
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
Collateral Agent:
STATE STREET BANK AND TRUST COMPANY, N.A.,
as Collateral Agent
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
Securities Intermediary:
STATE STREET BANK AND TRUST COMPANY,
as Securities Intermediary
By: /s/ Xxxx Xxxxxx
---------------------------------------------
Name: Xxxx Xxxxxx
Title: Assistant Vice President
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SCHEDULE I TO
SUPPLEMENT NO. 1 TO
PLEDGE AGREEMENT
PLEDGED SECURITIES
Original Principal Cost at Date of
Description of Debt CUSIP No(s). Final Maturity Amount Delivery
------------------- ------------ -------------- ------ --------
Treasury Xxxx 000000XX0 06/20/02 $413,000 $ 409,607.89
Treasury Coupon Strip 000000XX0 11/15/02 412,000 405,667.56
Treasury Coupon Strip 000000XX0 05/15/03 413,000 399,015.82
Treasury Principal Strip 000000XX0 11/15/03 412,000 390,032.16
Treasury Principal Strip 000000XX0 05/15/04 413,000 381,174.22
Treasury Principal Strip 000000XX0 11/15/04 412,000 369,259.12
=============
$2,354,756.77
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