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Exhibit 4.1
AMENDMENT TO RIGHTS AGREEMENT
This AMENDMENT (the "Amendment") is being entered into as of
September 6, 2001, between Veeco Instruments Inc., a Delaware corporation (the
"Company"), and American Stock Transfer and Trust Company, a New York banking
corporation, as rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a
Rights Agreement, dated as of March 13, 2001, between the Company and the Rights
Agent (the "Rights Agreement");
WHEREAS, it is proposed that the Company enter into an
Agreement and Plan of Merger (the "AE Merger Agreement") by and among the
Company, Veeco Acquisition Corp., a Minnesota corporation and a wholly owned
subsidiary of the Company ("Veeco Acquisition"), Applied Epi, Inc., a Minnesota
corporation ("Applied Epi"), and certain Applied Epi security holders pursuant
to which Veeco Acquisition will merge with and into Applied Epi with the result
that Applied Epi will be the surviving corporation and shall become a wholly
owned subsidiary of the Company (the "AE Merger");
WHEREAS, pursuant to the AE Merger, Paul E. Colombo, Founder
and Chairman of Applied Epi, will receive 3,646,969 shares of common stock and
other securities of the Company, representing approximately 14.7% of the
outstanding shares of common stock of the Company as of September 6, 2001; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may supplement or amend the Rights Agreement in
accordance with the provisions of Section 27 thereof. The Company now desires to
amend the Rights Agreement as set forth in this Amendment and deems such
amendments to be necessary and desirable. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Rights Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
agreement herein set forth, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
for so long as Paul E. Colombo and/or any of his existing or
future Affiliates or Associates that have reported or are
required to report ownership on Schedule 13G or Schedule 13D
under the Exchange Act (or any comparable or successor report)
and do not state any intention to, or reserve the right to,
control or influence the management or policies of the Company
or engage in any of the actions specified in Item 4 of
Schedule 13D (other than the disposition of the Common Stock),
none of Paul E. Colombo or any of his existing or future
Affiliates or Associates shall be deemed to be an Acquiring
Person solely by virtue of: (i) the execution of the AE Merger
Agreement; (ii) the acquisition of Common Stock or other
securities of the Company by Paul E. Colombo or his existing
or future Affiliates or Associates
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pursuant to the AE Merger; (iii) the grant by the Company of
options to purchase Common Stock to Paul E. Colombo or his
existing or future Affiliates or Associates in their capacity
as consultants, employees or directors of the Company, or the
exercise of such options; (iv) the acquisition by Paul E.
Colombo or his existing or future Affiliates or Associates of
up to one percent (1%) of the shares of Common Stock then
outstanding in excess of the percentage of shares of Common
Stock beneficially owned by Paul E. Colombo or his existing or
future Affiliates or Associates under clauses (i), (ii) and
(iii) above; and/or (v) the transfer of shares of Common Stock
received pursuant to (ii), (iii) or (iv) above by and among
Paul E. Colombo and/or any of his existing or future
Affiliates or Associates."
2. AMENDMENT OF SECTION 1(kk). Section 1(kk) of the Rights
Agreement is hereby amended to add the following proviso at the end thereof:
"; PROVIDED, HOWEVER, that for so long as Paul E. Colombo
and/or any of his existing or future Affiliates or Associates
that have reported or are required to report ownership on
Schedule 13G or Schedule 13D under the Exchange Act (or any
comparable or successor report) and do not state any intention
to, or reserve the right to, control or influence the
management or policies of the Company or engage in any of the
actions specified in Item 4 of Schedule 13D (other than the
disposition of the Common Stock), no Triggering Event shall
result solely by virtue of: (i) the execution of the AE Merger
Agreement; (ii) the acquisition of Common Stock or other
securities of the Company by Paul E. Colombo or his existing
or future Affiliates or Associates pursuant to the AE Merger;
(iii) the grant by the Company of options to purchase Common
Stock to Paul E. Colombo or his existing or future Affiliates
or Associates in their capacity as consultants, employees or
directors of the Company, or the exercise of such options;
(iv) the acquisition by Paul E. Colombo or his existing or
future Affiliates or Associates of up to one percent (1%) of
the shares of Common Stock then outstanding in excess of the
percentage of shares of Common Stock beneficially owned by
Paul E. Colombo or his existing or future Affiliates or
Associates under clauses (i), (ii) and (iii) above; and/or (v)
the transfer of shares of Common Stock received pursuant to
(ii), (iii) or (iv) above by and among Paul E. Colombo and/or
any of his existing or future Affiliates or Associates."
3. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement
is hereby amended to add the following subparagraphs at the end thereof:
(ll) "Applied Epi" shall mean Applied Epi, Inc., a
Minnesota corporation.
(mm) "AE Merger" shall mean the merger of Veeco
Acquisition with and into Applied Epi pursuant to the AE
Merger Agreement with the result that Applied Epi will be the
surviving corporation and shall become a wholly owned
subsidiary of the Company.
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(nn) "AE Merger Agreement" shall have the meaning set
forth in Section 35 hereof.
(oo) "Veeco Acquisition" shall mean Veeco Acquisition
Corp., a Minnesota corporation and a wholly owned subsidiary
of the Company.
4. AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
for so long as Paul E. Colombo and/or any of his existing or
future Affiliates or Associates that have reported or are
required to report ownership on Schedule 13G or Schedule 13D
under the Exchange Act (or any comparable or successor report)
and do not state any intention to, or reserve the right to,
control or influence the management or policies of the Company
or engage in any of the actions specified in Item 4 of
Schedule 13D (other than the disposition of the Common Stock),
a Distribution Date shall not be deemed to have occurred
solely by virtue of: (i) the execution of the AE Merger
Agreement; (ii) the acquisition of Common Stock or other
securities of the Company by Paul E. Colombo or his existing
or future Affiliates or Associates pursuant to the AE Merger;
(iii) the grant by the Company of options to purchase Common
Stock to Paul E. Colombo or his existing or future Affiliates
or Associates in their capacity as consultants, employees or
directors of the Company, or the exercise of such options;
(iv) the acquisition by Paul E. Colombo or his existing or
future Affiliates or Associates of up to one percent (1%) of
the shares of Common Stock then outstanding in excess of the
percentage of shares of Common Stock beneficially owned by
Paul E. Colombo or his existing or future Affiliates or
Associates under clauses (i), (ii) and (iii) above; and/or (v)
the transfer of shares of Common Stock received pursuant to
(ii), (iii) or (iv) above by and among Paul E. Colombo and/or
any of his existing or future Affiliates or Associates."
5. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
for so long as Paul E. Colombo and/or any of his existing or
future Affiliates or Associates that have reported or are
required to report ownership on Schedule 13G or Schedule 13D
under the Exchange Act (or any comparable or successor report)
and do not state any intention to, or reserve the right to,
control or influence the management or policies of the Company
or engage in any of the actions specified in Item 4 of
Schedule 13D (other than the disposition of the Common Stock),
none of: (i) the execution of the AE Merger Agreement; (ii)
the acquisition of Common Stock or other securities of the
Company by Paul E. Colombo or his existing or future
Affiliates or Associates pursuant to the AE Merger; (iii) the
grant by the Company of options to purchase Common Stock to
Paul E. Colombo or his existing or future Affiliates or
Associates in their capacity as consultants, employees or
directors of the Company, or the exercise of such options;
(iv) the acquisition by Paul E. Colombo or his existing or
future Affiliates or Associates
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of up to one percent (1%) of the shares of Common Stock then
outstanding in excess of the percentage of shares of Common
Stock beneficially owned by Paul E. Colombo or his existing or
future Affiliates or Associates under clauses (i), (ii) and
(iii) above; and/or (v) the transfer of shares of Common Stock
received pursuant to (ii), (iii) or (iv) above by and among
Paul E. Colombo and/or any of his existing or future
Affiliates or Associates shall be deemed to be events that
cause the Rights to become exercisable pursuant to the
provisions of this Section 7 or otherwise."
6. AMENDMENT OF SECTION 11. Section 11 of the Rights Agreement
is hereby amended to add the following sentence after the first sentence of said
Section:
"Notwithstanding anything in this Agreement to the contrary,
for so long as Paul E. Colombo and/or any of his existing or
future Affiliates or Associates that have reported or are
required to report ownership on Schedule 13G or Schedule 13D
under the Exchange Act (or any comparable or successor report)
and do not state any intention to, or reserve the right to,
control or influence the management or policies of the Company
or engage in any of the actions specified in Item 4 of
Schedule 13D (other than the disposition of the Common Stock),
none of: (i) the execution of the AE Merger Agreement; (ii)
the acquisition of Common Stock or other securities of the
Company by Paul E. Colombo or his existing or future
Affiliates or Associates pursuant to the AE Merger; (iii) the
grant by the Company of options to purchase Common Stock to
Paul E. Colombo or his existing or future Affiliates or
Associates in their capacity as consultants, employees or
directors of the Company, or the exercise of such options;
(iv) the acquisition by Paul E. Colombo or his existing or
future Affiliates or Associates of up to one percent (1%) of
the shares of Common Stock then outstanding in excess of the
percentage of shares of Common Stock beneficially owned by
Paul E. Colombo or his existing or future Affiliates or
Associates under clauses (i), (ii) and (iii) above; and/or (v)
the transfer of shares of Common Stock received pursuant to
(ii), (iii) or (iv) above by and among Paul E. Colombo and/or
any of his existing or future Affiliates or Associates shall
be deemed to be events of the type described in this Section
11 or to cause the Rights to be adjusted or to become
exercisable in accordance with this Section 11."
7. ADDITION OF SECTION 35. The Rights Agreement is hereby
amended to add the following new Section 35:
"Section 35. MERGER WITH APPLIED EPI
The Company, Veeco Acquisition and Applied Epi have
entered into an Agreement and Plan of Merger, dated as of
September 6, 2001, as it may be amended from time to time (the
"AE Merger Agreement"). Notwithstanding anything in this
Agreement to the contrary, if the AE Merger Agreement shall be
terminated for any reason, then, effective as of the time of
such termination, the following provisions which were added to
this Agreement by the Amendment to Rights Agreement, dated as
of September 6, 2001, shall be deemed repealed and deleted
without any further action on the part of the Company or the
Rights
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Agent: (1) the last sentence of Section 1(a) hereof, (2) the
proviso at the end of Section 1(kk) hereof, (3) subsections
(ll), (mm), (nn) and (oo) of Section 1 hereof, (4) the last
sentence of Section 3(a) hereof, (5) the last sentence of
Section 7(a) hereof and (6) the second sentence of Section 11
hereof."
8. EFFECTIVENESS. This Amendment shall be deemed effective as
of the date first written above. Except as amended hereby, the Rights Agreement
shall remain in full force and effect and shall be otherwise unaffected hereby.
9. MISCELLANEOUS. This Amendment shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such state
applicable to contracts to be made and performed entirely within such state
without giving effect to the principles of conflict of laws thereof. This
Amendment may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument. If any
term or other provision of this Amendment is determined to be invalid, illegal
or incapable of being enforced by any rule of law, or public policy, all other
terms and provisions of this Amendment shall nevertheless remain in full force
and effect and upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, this Amendment and such term or
other provision shall be deemed to have been amended so as to effect the
original intent of the parties as closely as possible in an acceptable manner to
the board of directors of the Company.
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IN WITNESS WHEREOF, this Amendment to the Rights Agreement is
executed under seal as of the date first set forth above.
VEECO INSTRUMENTS INC.
By: /s/ Edward H. Braun
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Name: Edward H. Braun
Title: Chief Executive Officer and
President
AMERICAN STOCK TRANSFER AND
TRUST COMPANY
By: /s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Title: Vice President and General
Counsel
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