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Exhibit 2.1
AGREEMENT AND PLAN OF MERGER
AMONG
VEECO INSTRUMENTS INC.,
VENICE ACQUISITION CORP.
AND
FEI COMPANY
July 11, 2002
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TABLE OF CONTENTS
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I. DEFINITIONS.................................................................................1
1.01 CERTAIN DEFINITIONS................................................................2
II. THE MERGER.................................................................................13
2.01 THE MERGER........................................................................13
2.02 EFFECTIVE TIME OF THE MERGER......................................................13
2.03 CLOSING OF THE MERGER.............................................................13
2.04 EFFECTS OF THE MERGER.............................................................13
2.05 AMENDMENT OF VEECO'S CERTIFICATE OF INCORPORATION AND BYLAWS......................14
2.06 CONVERSION OF SHARES..............................................................14
2.07 CLOSING OF FEI'S TRANSFER BOOKS...................................................15
2.08 EXCHANGE OF CERTIFICATES..........................................................16
2.09 TAX CONSEQUENCES..................................................................17
2.10 SUBSEQUENT ACTION.................................................................17
III. REPRESENTATIONS AND WARRANTIES OF FEI......................................................17
3.01 CORPORATE ORGANIZATION............................................................17
3.02 CAPITALIZATION....................................................................18
3.03 AUTHORIZATION.....................................................................19
3.04 REPORTS...........................................................................19
3.05 NO UNDISCLOSED LIABILITIES........................................................20
3.06 COMPLIANCE WITH LAW; GOVERNMENTAL AUTHORIZATIONS..................................20
3.07 NO CONFLICTS......................................................................20
3.08 CONTRACTS.........................................................................21
3.09 LITIGATION........................................................................22
3.10 TAXES.............................................................................22
3.11 ABSENCE OF CERTAIN CHANGES........................................................22
3.12 EMPLOYEE BENEFIT PLANS; LABOR MATTERS.............................................23
3.13 INTELLECTUAL PROPERTY RIGHTS......................................................25
3.14 ABSENCE OF LIENS; TITLE TO PROPERTY...............................................26
3.15 ENVIRONMENTAL MATTERS.............................................................27
3.16 BROKERS AND FINDERS...............................................................28
3.17 REORGANIZATION....................................................................28
3.18 BOARD APPROVAL....................................................................28
3.19 OPINION OF FEI'S BROKER...........................................................28
3.20 RESTRICTIONS ON BUSINESS ACTIVITIES...............................................28
3.21 STATE ANTI-TAKEOVER STATUTES......................................................28
3.22 OWNERSHIP OF VEECO STOCK..........................................................29
3.23 FORM S-4 REGISTRATION STATEMENT; JOINT PROXY STATEMENT............................29
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IV. REPRESENTATIONS AND WARRANTIES OF VEECO AND ACQUISITION....................................29
4.01 CORPORATE ORGANIZATION............................................................29
4.02 CAPITALIZATION....................................................................30
4.03 AUTHORIZATION.....................................................................31
4.04 REPORTS...........................................................................31
4.05 NO UNDISCLOSED LIABILITIES........................................................31
4.06 COMPLIANCE WITH LAW; GOVERNMENTAL AUTHORIZATIONS..................................32
4.07 NO CONFLICTS......................................................................32
4.08 CONTRACTS.........................................................................33
4.09 LITIGATION........................................................................33
4.10 TAXES.............................................................................34
4.11 ABSENCE OF CERTAIN CHANGES........................................................34
4.12 EMPLOYEE BENEFIT PLANS; LABOR MATTERS.............................................35
4.13 INTELLECTUAL PROPERTY RIGHTS......................................................37
4.14 ABSENCE OF LIENS; TITLE TO PROPERTY...............................................38
4.15 ENVIRONMENTAL MATTERS.............................................................39
4.16 BROKERS AND FINDERS...............................................................40
4.17 REORGANIZATION....................................................................40
4.18 BOARD APPROVAL....................................................................40
4.19 OPINION OF VEECO'S BROKER.........................................................40
4.20 RESTRICTIONS ON BUSINESS ACTIVITIES...............................................40
4.21 STATE ANTI-TAKEOVER STATUTES......................................................40
4.22 OWNERSHIP OF FEI STOCK............................................................41
4.23 FORM S-4 REGISTRATION STATEMENT; JOINT PROXY STATEMENT............................41
4.24 VEECO RIGHTS AGREEMENT............................................................41
V. COVENANTS..................................................................................41
5.01 ACCESS............................................................................41
5.02 CONDUCT OF THE BUSINESS OF THE PARTIES PENDING THE CLOSING DATE...................42
5.03 RESTRICTED CONDUCT................................................................43
5.04 CONSENTS..........................................................................45
5.05 STOCK OPTIONS.....................................................................46
5.06 ESPP..............................................................................47
5.07 EMPLOYEE MATTERS..................................................................47
5.08 INDEMNIFICATION OF OFFICERS AND DIRECTORS.........................................48
5.09 REGISTRATION STATEMENT ON FORM S-3................................................49
5.10 TAX MATTERS.......................................................................49
5.11 LETTERS OF THE PARTIES' ACCOUNTANTS...............................................50
5.12 LISTING...........................................................................51
5.13 BOARD OF DIRECTORS; COMMITTEES; OFFICERS; HEADQUARTERS............................51
5.14 NOTICE OF BREACH; DISCLOSURE......................................................51
5.15 PAYMENT OF INDEBTEDNESS BY AFFILIATES.............................................51
5.16 NO SOLICITATION -- FEI............................................................52
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5.17 NO SOLICITATION -- VEECO..........................................................53
5.18 BLUE SKY LAWS.....................................................................54
5.19 ADDITIONAL AGREEMENTS.............................................................54
5.20 DISCLOSURE........................................................................54
5.21 REGISTRATION STATEMENT; JOINT PROXY STATEMENT.....................................54
5.22 FEI STOCKHOLDERS' MEETING.........................................................56
5.23 VEECO STOCKHOLDERS' MEETING.......................................................56
5.24 SECTION 16 MATTERS................................................................57
5.25 ACQUISITION COMPLIANCE............................................................58
5.26 CONVEYANCE TAXES..................................................................58
VI. CONDITIONS PRECEDENT TO THE OBLIGATIONS OF THE PARTIES.....................................58
6.01 EFFECTIVENESS OF REGISTRATION STATEMENT...........................................58
6.02 STOCKHOLDER APPROVAL..............................................................58
6.03 LITIGATION........................................................................58
6.04 NO ORDER..........................................................................58
6.05 HSR ACT...........................................................................58
6.06 LISTING...........................................................................59
VII. CONDITIONS PRECEDENT TO VEECO'S AND ACQUISITION'S OBLIGATIONS..............................59
7.01 REPRESENTATIONS AND WARRANTIES....................................................59
7.02 PERFORMANCE OF COVENANTS..........................................................59
7.03 MATERIAL ADVERSE EFFECT...........................................................59
7.04 AGREEMENTS AND DOCUMENTS..........................................................59
VIII.CONDITIONS PRECEDENT TO FEI'S OBLIGATIONS...................................................59
8.01 REPRESENTATIONS AND WARRANTIES....................................................60
8.02 PERFORMANCE OF COVENANTS..........................................................60
8.03 MATERIAL ADVERSE EFFECT...........................................................60
8.04 DOCUMENTS.........................................................................60
IX. TERMINATION................................................................................60
9.01 TERMINATION.......................................................................60
9.02 EFFECT OF TERMINATION.............................................................62
9.03 EXPENSES; TERMINATION FEES........................................................62
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X. MISCELLANEOUS..............................................................................64
10.01 SUCCESSORS........................................................................64
10.02 AMENDMENT.........................................................................64
10.03 WAIVER............................................................................64
10.04 NO SURVIVAL OF REPRESENTATIONS AND WARRANTIES.....................................65
10.05 ENTIRE AGREEMENT; COUNTERPARTS....................................................65
10.06 GOVERNING LAW.....................................................................65
10.07 DISCLOSURE SCHEDULES..............................................................65
10.08 ATTORNEYS' FEES...................................................................66
10.09 ASSIGNMENT........................................................................66
10.10 NOTICES...........................................................................66
10.11 HEADINGS..........................................................................67
10.12 EXHIBITS AND SCHEDULES............................................................67
10.13 SEVERABILITY......................................................................67
10.14 NO THIRD-PARTY BENEFICIARIES......................................................67
SCHEDULES
Schedule A FEI Stockholders Party to FEI Stockholder Voting Agreements
Schedule B Veeco Stockholders Party to Veeco Stockholder Voting Agreements
EXHIBITS
Exhibit A FEI Stockholder Voting Agreements
Exhibit B Veeco Stockholder Voting Agreements
Exhibit C Certificate of Amendment of the Amended and Restated Certificate of Incorporation
of Veeco Instruments Inc.
Exhibit D Articles of Merger
Exhibit E Fourth Amended and Restated Bylaws of Veeco Instruments Inc.
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AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER (this "MERGER AGREEMENT") is made as of
July 11, 2002, by and among Veeco Instruments Inc., a Delaware corporation
("VEECO"), Venice Acquisition Corp., an Oregon corporation and a wholly owned
subsidiary of Veeco ("ACQUISITION"), and FEI Company, an Oregon corporation
("FEI").
WHEREAS, upon the terms and subject to the conditions set forth herein and
in accordance with the provisions of the Delaware General Corporation Law (the
"DGCL") and the Oregon Business Corporation Act (the "OBCA"), Veeco, FEI and
Acquisition are entering into a business combination pursuant to which
Acquisition will merge with and into FEI, with the result that FEI 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.
WHEREAS, the Boards of Directors of FEI, Veeco and Acquisition have (i)
determined that the Merger is consistent with and in furtherance of their
long-term business strategies and fair to, advisable and in the best interests
of their respective stockholders; (ii) approved this Merger Agreement and all
other agreements and transactions contemplated by this Merger Agreement; and
(iii) in the case of the Board of Directors of FEI, determined to recommend that
its stockholders vote to approve the Merger, and, in the case of the Board of
Directors of Veeco, determined to recommend that its stockholders vote to
approve the issuance of the Veeco Shares in the Merger.
WHEREAS, Veeco has entered into those certain Voting Agreements in the
forms attached hereto as EXHIBIT A (the "FEI STOCKHOLDER VOTING AGREEMENTS"),
dated as of the date hereof, with the stockholders of FEI listed on SCHEDULE A
to this Merger Agreement. Pursuant to the FEI Stockholder Voting Agreements,
such stockholders of FEI have granted to Veeco irrevocable proxies to vote the
shares of FEI Common Stock (as defined below) held by them in favor of approving
the Merger, and against any alternative proposals, action, failure to act, or
agreement that would result in a breach of any covenant, representation or
agreement of FEI under this Merger Agreement.
WHEREAS, FEI has entered into those certain Voting Agreements in the forms
attached hereto as EXHIBIT B (the "VEECO STOCKHOLDER VOTING AGREEMENTS"), 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 Agreements, such
stockholders of Veeco have granted to FEI irrevocable proxies to vote the Veeco
Shares (as defined below) held by them in favor of approving the issuance of the
Veeco Shares in the Merger, and against any alternative proposals, action,
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 within the
meaning of 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
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1.01 CERTAIN DEFINITIONS. For purposes of this Merger Agreement, the
following terms shall have the following meanings:
"ACQUISITION" shall have the meaning set forth in the introductory
paragraph of this Merger Agreement.
"AFFILIATE" of any Person shall mean, with respect to any Person, an
affiliate of such Person within the meaning of Rule 405 promulgated under the
Securities Act.
"ARTICLES OF MERGER" shall have the meaning set forth in Section 2.02.
"ASSUMED PURCHASE RIGHT" shall have the meaning set forth in Section
5.06(a).
"BENEFIT PLAN" shall mean, with respect to any Person, any employee benefit
plan, program, policy, practice, agreement, contract or other arrangement
providing benefits to any current or former employee, officer or director of
such Person or any of its ERISA Affiliates or any beneficiary or dependent
thereof that is sponsored or maintained by such Person or any of its ERISA
Affiliates or to which such Person or any of its ERISA Affiliates contributes or
is obligated to contribute, whether or not written, including any employee
welfare benefit plan within the meaning of Section 3(1) of ERISA, any employee
pension benefit plan within the meaning of Section 3(2) of ERISA (whether or not
such plan is subject to ERISA), any employment or severance agreement, and any
bonus, incentive, deferred compensation, vacation, stock purchase, stock option,
severance, change of control or fringe benefit plan, program or policy.
"BUSINESS DAY" shall mean any day other than Saturday, Sunday or other day
on which commercial banks in New York, New York are authorized or required by
law to close.
"CLOSING" shall have the meaning set forth in Section 2.03(a).
"CLOSING DATE" shall have the meaning set forth in Section 2.03(a).
"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.
"CODE" shall mean the United States Internal Revenue Code of 1986, as
amended, and the rules and regulations promulgated thereunder or any successor
statute thereto.
"CONSENT" shall mean any approval, permit, consent, ratification,
permission, waiver or authorization (including any License or governmental
authorization).
"CONSTITUENT CORPORATIONS" shall have the meaning set forth in Section
2.01.
"CONTRACT" shall mean any agreement, arrangement, commitment,
understanding, indemnity, indenture, instrument or lease, including any and all
amendments, supplements, and modifications (whether oral or written) thereto,
whether or not in writing.
"CONTROLLED GROUP LIABILITY" shall mean any and all liabilities (a) under
Title IV of ERISA, other than for payment of premiums to the PBGC (including
without limitation on account of a
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complete or partial withdrawal from, or unpaid contribution to, a "multiemployer
plan" within the meaning of Section 4001(a)(3) of ERISA), (b) under Section 302
of ERISA, (c) under Sections 412 and 4971 of the Code, (d) for violation of the
continuation coverage requirements of Section 601 et seq. of ERISA and Section
4980B of the Code or the group health requirements of Section 701 et seq. of
ERISA, or the provisions of law enacted by the Health Insurance Portability and
Accountability Act of 1996, and (e) under corresponding or similar provisions of
foreign laws or regulations.
"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.
"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 foreign, state, federal or local laws,
ordinances, codes, regulations, statutes and orders promulgated by any
Governmental Authority relating to Hazardous Substances, 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.
"ENVIRONMENTAL PERMITS" shall have the meaning set forth in Section
3.15(a).
"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, and the rules and regulations promulgated thereunder.
"ERISA AFFILIATE" shall mean with respect to any Person (a) any corporation
that 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, (b) any trade or
business (whether or not incorporated) that 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 (c) 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 entity described in clause (a) or (b) 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 2.08(a).
"EXCHANGE FUND" shall have the meaning set forth in Section 2.08(a).
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"EXCHANGE RATIO" shall have the meaning set forth in Section 2.06(a).
"EXISTING POLICY" shall have the meaning set forth in Section 5.08(b).
"FEI" shall have the meaning set forth in the introductory paragraph to
this Merger Agreement.
"FEI 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 FEI Acquisition
Transaction.
"FEI ACQUISITION TRANSACTION" shall mean any transaction or series of
related transactions (other than the transactions contemplated by this Merger
Agreement) involving:
(a) any merger, reorganization, consolidation, share exchange,
recapitalization, business combination, issuance of securities, purchase or
acquisition of securities, tender offer, exchange offer or other similar
transaction (i) in which FEI or any other Material FEI Entity is a constituent
corporation, (ii) in which a Person or "group" (as defined and described under
Section 13(d) of the Exchange Act and the rules and regulations promulgated
thereunder) of Persons directly or indirectly acquires beneficial or record
ownership of securities representing more than 15% of the outstanding securities
of any class of voting securities of FEI or another Material FEI Entity, or
(iii) in which FEI or any other Material FEI Entity issues securities
representing more than 15% of the outstanding securities of any class of voting
securities of FEI or such Material FEI Entity;
(b) any sale, lease, exchange, transfer, license, acquisition or
disposition of any business or businesses or assets (other than in the ordinary
course of business) that constitute or account for 15% or more of the
consolidated net revenues, net income or assets (measured by fair market value)
of FEI and the other FEI Entities, on a consolidated basis; or
(c) any liquidation or dissolution of FEI.
"FEI AUTHORIZATIONS" shall have the meaning set forth in Section 3.06(b).
"FEI BALANCE SHEET" shall have the meaning set forth in Section 3.05.
"FEI BALANCE SHEET DATE" shall have the meaning set forth in Section 3.11.
"FEI BENEFIT PLAN" shall mean any Benefit Plan maintained or contributed to
by FEI, a Subsidiary of FEI or an ERISA Affiliate of either, or to which FEI, a
Subsidiary of FEI or an ERISA Affiliate of either is required to contribute.
"FEI BOARD RECOMMENDATION" shall have the meaning set forth in Section
5.22(b).
"FEI'S BROKER" shall have the meaning set forth in Section 3.16.
"FEI COMMON STOCK" shall mean the common stock of FEI, no par value per
share.
"FEI CONFIDENTIAL IP INFORMATION" shall have the meaning set forth in
Section 3.13(f).
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"FEI CONTRACT" shall have the meaning set forth in Section 3.08(a).
"FEI CONVERTIBLE DEBT" shall have the meaning set forth in Section 3.02(b).
"FEI DISCLOSURE SCHEDULE" shall mean the disclosure schedule that has been
prepared by FEI in accordance with the requirements of Section 10.07 hereof and
that has been delivered by FEI to Veeco on the date of this Merger Agreement.
"FEI ENTITIES" shall mean FEI and each of its Subsidiaries.
"FEI ESPP" shall have the meaning set forth in Section 5.06(a).
"FEI FINANCIAL STATEMENTS" shall have the meaning set forth in Section
3.04.
"FEI INSIDER" shall have the meaning set forth in Section 5.24.
"FEI INTELLECTUAL PROPERTY" shall mean all Intellectual Property used in or
necessary for the conduct of FEI's and its Subsidiaries' businesses as currently
conducted.
"FEI OPTIONS" shall have the meaning set forth in Section 3.02(b).
"FEI-OWNED IP" shall have the meaning set forth in Section 3.13(c).
"FEI RIGHTS AGREEMENT" shall mean any preferred stock rights agreement
(commonly known as a "poison pill") entered into or put in place by FEI.
"FEI SEC DOCUMENTS" shall mean each statement, report, form, schedule,
registration statement (including the related prospectus in the form filed
pursuant to Rule 424(b) of the Securities Act) and proxy statement or
information statement, and all other filings filed with the SEC by FEI since
January 1, 1999.
"FEI STOCK CERTIFICATE" shall have the meaning set forth in Section 2.07.
"FEI STOCKHOLDERS' MEETING" shall have the meaning set forth in Section
5.22(a).
"FEI STOCKHOLDER VOTING AGREEMENTS" shall have the meaning set forth in the
third WHEREAS clause to this Merger Agreement.
"FEI TRIGGERING EVENT" shall be deemed to have occurred if: (i) the Board
of Directors of FEI shall have failed to recommend that FEI's stockholders vote
to approve the Merger, or shall have withdrawn or modified in a manner adverse
to Veeco the FEI Board Recommendation; (ii) FEI shall have failed to include in
the Joint Proxy Statement the FEI Board Recommendation; (iii) the Board of
Directors of FEI shall have approved, endorsed or recommended any FEI
Acquisition Transaction; (iv) FEI shall have entered into any letter of intent
or similar document or any Contract providing for any FEI Acquisition
Transaction; (v) FEI shall have failed to hold the FEI Stockholders' Meeting in
accordance with Section 5.22; (vi) FEI shall have failed to prepare and mail to
its stockholders the Joint Proxy Statement in accordance with Section 5.21;
(vii) a tender or exchange offer relating to FEI's securities shall have been
commenced by a Person unaffiliated with
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Veeco, and FEI shall not have sent to its stockholders, pursuant to Rule 14e-2
promulgated under the Exchange Act, within ten business days after such tender
or exchange offer is first published, sent, given or otherwise commenced, a
statement disclosing that the Board of Directors of FEI recommends rejection of
such tender or exchange offer; (viii) the Board of Directors of FEI shall have
granted any approval or taken any other step to exempt any transaction (other
than the Merger and the other transactions with Veeco and Acquisition
contemplated by this Merger Agreement) from the requirements and provisions of
Section 835 of the OBCA or other state anti-takeover statutes or regulations;
(ix) FEI's Board of Directors shall have amended or resolved to amend the FEI
Rights Agreement, if in effect, in a manner so as to render it inapplicable to
any FEI Acquisition Transaction (other than with respect to the Merger and other
transactions contemplated by this Merger Agreement) or (x) any of the FEI
Entities shall have violated in a material manner any of the restrictions set
forth in Section 5.16.
"FOREIGN CONTINUING EMPLOYEES" shall have the meaning set forth in Section
5.07(d).
"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 the issuance of
Veeco Shares in the Merger, as said registration statement may be amended from
time to time prior to or after the time it is declared effective by the SEC.
"GAAP" shall mean United States generally accepted accounting principles.
"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 waste, substance or material that
is prohibited, limited, or regulated by any Environmental Law, or that has been
designated by any Governmental Authority to be radioactive, toxic, hazardous or
otherwise a danger to health, reproduction or the environment; (ii)
asbestos-containing material, (iii) medical and biological waste, (iv)
polychlorinated biphenyls, and (v) petroleum products, including gasoline, fuel
oil, crude oil and other various constituents of such products.
"HAZARDOUS SUBSTANCE ACTIVITIES" shall mean the transportation, transfer,
recycling, storage, use, treatment, manufacture, removal remediation, release,
exposure of others to, sale or distribution of any Hazardous Substance or any
product containing a Hazardous Substance.
"HSR ACT" shall mean the Hart-Scott-Rodino Antitrust Improvements Act of
1976, as amended.
"INDEMNIFIED PERSONS" shall have the meaning set forth in Section 5.08(a).
"INTELLECTUAL PROPERTY" means shall mean any or all of the following and
all rights in, arising out of, or associated therewith: (i) all United States,
international and foreign patents and applications therefor and all reissues,
divisions, renewals, extensions, provisionals, continuations and
continuations-in-part thereof; (ii) all inventions (whether patentable or not),
invention disclosures, improvements, trade secrets, proprietary information,
know how, technology, technical data and customer lists, and all documentation
relating to any of the foregoing; (iii) all copyrights, copyrights
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registrations and applications therefor, and all other rights corresponding
thereto throughout the world; (iv) all industrial designs and any registrations
and applications therefor throughout the world; (v) all mask works and any
registrations and applications therefor throughout the world (vi) all trade
names, logos, URLs, common law trademarks and service marks, trademark and
service mark registrations and applications therefor throughout the world; (vii)
all databases and data collections and all rights therein throughout the world;
(viii) all moral and economic rights of authors and inventors, however
denominated, throughout the world; and (ix) any similar or equivalent rights to
any of the foregoing throughout the world.
"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 FEI's stockholders in connection with the FEI 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 any officer or director of a corporate
entity or other Person 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, or otherwise involving, any
court or other Governmental Authority or any arbitrator or arbitration panel.
"LIEN" shall mean any lien, pledge, mortgage, deed of trust, security
interest, attachment, 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 and payable.
"MATERIAL ADVERSE EFFECT" shall mean, with respect to any Person, a
material adverse effect on (i) the business, assets, financial condition,
operations or results of operations of such Person and its Subsidiaries, taken
as a whole or (ii) the ability of such Person to consummate the transactions
contemplated by this Merger Agreement prior to the Termination Date; PROVIDED,
HOWEVER, that, for purposes of clause (i) above, in no event shall any of the
following, alone or in combination with one another, be deemed to constitute,
nor shall any of the following be taken into account in determining whether
there has been or will be, a Material Adverse Effect: (A) any effect resulting
from compliance with the express terms and conditions of this Agreement; (B) any
effect resulting from the announcement or pendency of the Merger (provided that
the exception in this clause (B) shall not apply to the use of the term
"Material Adverse Effect" in Sections 7.01 and 8.01 with respect to the
representations and warranties contained in Sections 3.03, 3.07, 3.08, 3.13(b),
4.03, 4.07, 4.08, and 4.13(b)); (C) any changes in the Person's stock price or
trading volume (but excluding the reasons
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for such changes in the stock price or trading volume); (D) any failure by the
Person to meet published revenue or earnings projections (but excluding the
reasons for failing to meet such projections); (E) any effect that results from
changes affecting any of the industries in which the Person operates generally
or the United States economy generally (including prevailing interest rate and
stock market levels); (F) any effect that results primarily from changes
affecting general worldwide economic or capital market conditions (which changes
in each case do not disproportionately affect the Person in any material
respect); or (G) stockholder class action litigation arising from allegations of
a breach of fiduciary duty relating to this Agreement.
"MATERIAL FEI ENTITY" shall mean any FEI Entity that is a "significant
subsidiary" (as such term is defined in Regulation 210.1-02(w) of Regulation S-X
of the SEC) of FEI.
"MATERIAL VEECO ENTITY" shall mean any Veeco Entity that is a "significant
subsidiary" (as such term is defined in Regulation 210.1-02(w) of Regulation S-X
of the SEC) of Veeco.
"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 2.06(a).
"NASDAQ" shall mean The NASDAQ Stock Market, Inc.
"OBCA" shall have the meaning set forth in the first WHEREAS clause to this
Merger Agreement.
"PARTY(IES)" shall mean FEI or Veeco and all of their respective
Subsidiaries, including Acquisition.
"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.
"PHILIPS" shall mean Philips Business Electronics International B.V.
"QUALIFYING AMENDMENT" shall mean an amendment or supplement to the Joint
Proxy Statement or Form S-4 Registration Statement (including by incorporation
by reference) to the extent it contains (a) a change in the Veeco Board
Recommendation or a change in the FEI Board Recommendation (as the case may be),
(b) a statement of the reasons of the Board of Directors of Veeco or FEI (as the
case may be) for making such change in the Veeco Board Recommendation or the FEI
Board Recommendation (as the case may be) and (c) additional information
reasonably related to the foregoing.
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"REGULATORY LAW" shall mean the HSR Act, and all other federal, state and
foreign, if any, statutes, rules, regulations, orders, decrees, administrative
and judicial doctrines and other laws that are designed or intended to prohibit,
restrict, or regulate (a) mergers, acquisitions or other business combinations,
(b) foreign investment or (c) actions having the purpose or effect of
monopolization or restraint of trade or lessening of competitions.
"RELEASE" shall mean any spilling, leaking, emitting, discharging,
depositing, escaping, leaching, dumping, or other releasing, whether intentional
or unintentional.
"REPRESENTATIVES" shall mean, with respect to any Person, its officers,
directors, attorneys, accountants, advisors and other representatives.
"REQUIRED FEI STOCKHOLDER VOTE" shall mean the affirmative vote of the
holders of a majority of the shares of FEI Common Stock entitled to vote at the
FEI Stockholders Meeting in which a quorum is present in conformance with the
requirements of OBCA, FEI's articles of incorporation, charter documents and
by-laws, and NASDAQ.
"REQUIRED VEECO STOCKHOLDER VOTE" shall mean the affirmative vote of the
holders of a majority of the outstanding Veeco Shares entitled to vote at the
Veeco Stockholders Meeting in which a quorum is present in conformance with the
requirements of DGCL, Veeco's certificate of incorporation, charter documents
and by-laws, and NASDAQ.
"SEC" shall mean the United States Securities and Exchange Commission.
"SECURITIES ACT" shall mean the Securities Act of 1933, as amended.
"SUBSIDIARY" shall mean 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 FEI PROPOSAL" shall mean an unsolicited, BONA FIDE, written offer
made by a third party (other than by Veeco or by a Veeco Entity) with respect to
a FEI Acquisition Transaction on terms that the Board of Directors of FEI
determines in good faith make it more favorable to the stockholders of FEI for
FEI to consummate such FEI Acquisition Transaction, than for FEI to consummate
the Merger, after, among other relevant considerations, consultation with an
independent financial advisor of nationally recognized reputation; PROVIDED,
HOWEVER, that any such offer shall not be deemed to be a "Superior FEI 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. For purposes of this definition, the term "FEI Acquisition
Transaction" shall have the meaning ascribed to such term in this Article I,
except that references to "15%" therein shall be deemed to read "50%."
"SUPERIOR VEECO PROPOSAL" shall mean an unsolicited, bona fide, written
offer made by a third party (other than by FEI or by a FEI Entity) with respect
to a Veeco Acquisition Transaction on terms that the Board of Directors of Veeco
determines in good faith make it more favorable to the stockholders of Veeco for
Veeco to consummate such Veeco Acquisition Transaction, than for
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Veeco to consummate the Merger, after, among other relevant considerations,
consultation with an independent financial advisor of nationally recognized
reputation; provided, however, that any such offer shall not be deemed to be a
"Superior Veeco 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. For purposes of this definition,
the term "Veeco Acquisition Transaction" shall have the meaning ascribed to such
term in this Article I, except that references to "15%" therein shall be deemed
to read "50%."
"SURVIVING CORPORATION" shall have the meaning set forth in Section 2.01.
"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.
"TERMINATION DATE" shall have the meaning set forth in Section 9.01(b).
"TERMINATION FEE" shall have the meaning set forth in Section 9.03(b).
"THREATENED" shall mean: 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 near future.
"TRANSACTION EXPENSES" shall have the meaning set forth in Section 9.03(b).
"U.S. CONTINUING EMPLOYEES" shall have the meaning set forth in Section
5.07(a).
"VEECO" shall have the meaning set forth in the introductory paragraph of
this Merger Agreement.
"VEECO ACQUISITION PROPOSAL" shall mean any offer, proposal, inquiry or
indication of interest (other than an offer, proposal, inquiry or indication of
interest by FEI) contemplating or otherwise relating to any Veeco Acquisition
Transaction.
"VEECO ACQUISITION TRANSACTION" shall mean any transaction or series of
related transactions (other than the transactions contemplated by this Merger
Agreement) involving:
(a) any merger, reorganization, consolidation, share exchange,
recapitalization, business combination, issuance of securities, purchase or
acquisition of securities, tender offer, exchange offer or other similar
transaction (i) in which Veeco or any other Material Veeco Entity is
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a constituent corporation, (ii) in which a Person or "group" (as defined and
described under Section 13(d) of the Exchange Act and the rules and regulations
promulgated thereunder) of Persons directly or indirectly acquires beneficial or
record ownership of securities representing more than 15% of the outstanding
securities of any class of voting securities of Veeco or another Material Veeco
Entity, or (iii) in which Veeco or any other Material Veeco Entity issues
securities representing more than 15% of the outstanding securities of any class
of voting securities of Veeco or such Material Veeco Entity;
(b) any sale, lease, exchange, transfer, license, acquisition or
disposition of any business or businesses or assets (other than in the ordinary
course of business) that constitute or account for 15% or more of the
consolidated net revenues, net income or assets (measured by fair market value)
of Veeco and the other Veeco Entities, on a consolidated basis; or
(c) any liquidation or dissolution of Veeco.
"VEECO AUTHORIZATIONS" shall have the meaning set forth in Section 4.06(b).
"VEECO BALANCE SHEET" shall have the meaning set forth in Section 4.05.
"VEECO BALANCE SHEET DATE" shall have the meaning set forth in Section
4.11.
"VEECO BENEFIT PLAN" shall mean any Benefit Plan maintained or contributed
to by Veeco, a Subsidiary of Veeco or an ERISA Affiliate of either, or to which
Veeco, a Subsidiary of Veeco or an ERISA Affiliate of either is required to
contribute.
"VEECO BENEFITS" shall have the meaning set forth in Section 5.07(a).
"VEECO BOARD RECOMMENDATION" shall have the meaning set forth in Section
5.23(b).
"VEECO'S BROKER" shall have the meaning set forth in Section 4.16.
"VEECO CERTIFICATE OF INCORPORATION AMENDMENT" shall mean the Certificate
of Amendment of the Amended and Restated Certificate of Incorporation of Veeco,
substantially in the form attached hereto as Exhibit C.
"VEECO CONFIDENTIAL IP INFORMATION" shall have the meaning set forth in
Section 4.13(f).
"VEECO CONTRACT" shall have the meaning set forth in Section 4.08(a).
"VEECO CONVERTIBLE DEBT" shall have the meaning set forth in Section
4.02(b).
"VEECO DISCLOSURE SCHEDULE" shall mean the disclosure schedule that has
been prepared by Veeco in accordance with the requirements of Section 10.07
hereof and that has been delivered by Veeco to FEI on the date of this Merger
Agreement.
"VEECO ENTITIES" shall mean Veeco and each of its Subsidiaries.
"VEECO ESPP" shall have the meaning set forth in Section 5.06(b).
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"VEECO FINANCIAL STATEMENTS" shall have the meaning set forth in Section
4.04.
"VEECO INVESTOR AGREEMENT" shall mean that certain Investor Agreement,
dated as of the date hereof, by and among Veeco, Philips and FEI.
"VEECO INTELLECTUAL PROPERTY" shall mean all Intellectual Property used in
or necessary for the conduct of Veeco's and its Subsidiaries' businesses as
currently conducted.
"VEECO OPTIONS" shall have the meaning set forth in Section 4.02(b).
"VEECO-OWNED IP" shall have the meaning set forth in Section 4.13(c).
"VEECO RIGHTS AGREEMENT" shall mean that certain Rights Agreement, dated as
of March 13, 2001, between Veeco and American Stock Transfer and Trust Company,
as amended.
"VEECO SEC DOCUMENTS" shall mean each statement, report, form, schedule,
registration statement (including the related prospectus in the form filed
pursuant to Rule 424(b) of the Securities Act) and proxy statement or
information statement, and all other filings filed with the SEC by Veeco since
January 1, 1999.
"VEECO SHARES" shall mean the common stock, $0.01 par value per share, of
Veeco.
"VEECO STOCKHOLDERS' MEETING" shall have the meaning set forth in Section
5.23(a).
"VEECO STOCKHOLDER VOTING AGREEMENTS" shall have the meaning set forth in
the fourth 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 approve the issuance of Veeco Shares in the Merger, or shall have
withdrawn or modified in a manner adverse to FEI the Veeco Board Recommendation;
(ii) Veeco shall have failed to include in the Joint Proxy Statement the Veeco
Board Recommendation; (iii) the Board of Directors of Veeco shall have approved,
endorsed or recommended any Veeco Acquisition Transaction; (iv) Veeco shall have
entered into any letter of intent or similar document or any Contract providing
for any Veeco Acquisition Transaction; (v) Veeco shall have failed to hold the
Veeco Stockholders' Meeting in accordance with Section 5.23; (vi) Veeco shall
have failed to prepare and mail to its stockholders the Joint Proxy Statement in
accordance with Section 5.21; (vii) a tender or exchange offer relating to
Veeco's securities shall have been commenced by a Person unaffiliated with FEI,
and Veeco shall not have sent to its stockholders, pursuant to Rule 14e-2
promulgated under the Exchange Act, within ten business days after such tender
or exchange offer is first published, sent, given or otherwise commenced, a
statement disclosing that the Board of Directors of Veeco recommends rejection
of such tender or exchange offer; (viii) the Board of Directors of Veeco shall
have granted any approval or taken any other step to exempt any transaction
(other than the Merger and the other transactions with FEI contemplated by this
Merger Agreement) from the requirements and provisions of Section 203 of the
DGCL or other state anti-takeover statutes or regulations; (ix) Veeco's Board of
Directors shall have amended or resolved to amend the Veeco Rights Agreement in
a manner so as to render it inapplicable to any Veeco Acquisition Transaction
(other than with respect to the Merger and other
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transactions contemplated by this Merger Agreement) or (x) any of the Veeco
Entities shall have violated in a material manner any of the restrictions set
forth in Section 5.17.
"VOTING DEBT" shall mean any bonds, debentures, notes or other indebtedness
having the right to vote on any matters on which holders of capital stock of the
same issuer may vote.
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 FEI. The separate existence of Acquisition shall thereupon
cease and FEI shall continue its corporate existence as the surviving
corporation (the "SURVIVING CORPORATION") under the Laws of the State of Oregon
under its present name. FEI 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 articles of merger substantially in the form of EXHIBIT D to be executed
and filed with the Secretary of State of the State of Oregon, as provided in
Section 481 of the OBCA (the "ARTICLES OF MERGER"), 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 Articles 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 VIII
hereof are fulfilled or waived (by the relevant party or parties), subject to
applicable Laws (the "Closing Date"), at the offices of Kaye Scholer LLP, 425
Park Avenue, New York, New York 10022, 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 FEI shall cause to be executed and filed at the Closing the
Articles of Merger, and shall cause the Articles of Merger to be recorded in
accordance with the provisions of the OBCA 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:
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(a) the separate existence of Acquisition shall cease and Acquisition
shall be merged with and into FEI, which shall be the Surviving Corporation;
(b) the Articles of Incorporation and By-Laws of Acquisition as in
effect immediately prior to the Effective Time shall be the Articles 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 individuals set forth on
SCHEDULE 2.04(C);
(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;
(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; and
(f) the FEI Convertible Debt shall become convertible solely into a
number of Veeco Shares equal to the number of Veeco Shares that would have been
issued if the FEI Convertible Debt had been converted into FEI Common Stock
immediately prior to the Effective Time.
2.05 AMENDMENT OF VEECO'S CERTIFICATE OF INCORPORATION AND BYLAWS.
(a) Immediately following the Effective Time, Article I of the Amended
and Restated Certificate of Incorporation of Veeco shall be amended in its
entirety to provide that "The name of the corporation is Veeco FEI Inc. (the
"Corporation")."
(b) Immediately following the Effective Time, the Bylaws of Veeco
shall be amended and restated as set forth in EXHIBIT E.
2.06 CONVERSION OF SHARES. As of the Effective Time, by virtue of the
Merger and without any further action on the part of Veeco, Acquisition, FEI or
any holder of any Equity Securities of the Constituent Corporations:
(a) Each share of FEI Common Stock issued and outstanding immediately
prior to the Effective Time shall be converted into the right to receive 1.355
Veeco Shares (the "MERGER CONSIDERATION"). Accordingly, 1.355 is hereinafter
referred to as the "EXCHANGE RATIO."
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(b) Each share of common stock 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 of
the Surviving Corporation.
(c) The Exchange Ratio 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 FEI Common Stock),
reorganization, recapitalization or other like change with respect to Veeco
Shares or FEI 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 FEI Common Stock, but in lieu thereof each holder of
shares of FEI 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), without interest, equal to the product of (i) such
fraction, multiplied by (ii) the Closing Price Per Share.
(e) All FEI 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 FEI
Stock Certificate shall thereafter cease to have any rights with respect to the
shares of FEI Common Stock represented thereby, except the right to receive the
Merger Consideration for such FEI Common Stock upon the surrender of such FEI
Stock Certificate in accordance with this Section and Section 2.08 hereof.
(f) If any shares of FEI 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 FEI or any other FEI Entity or under which FEI
or any other FEI Entity has any rights, then the Veeco Shares issued in exchange
for such shares of FEI 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. FEI shall use commercially reasonable efforts 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.
2.07 CLOSING OF FEI'S TRANSFER BOOKS. At the Effective Time, the stock
transfer books of FEI shall be closed with respect to all shares of FEI Common
Stock outstanding immediately prior to the Effective Time. No further transfer
of any such shares of FEI 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 FEI Common Stock (a "FEI STOCK
CERTIFICATE") is presented to the Exchange Agent or to the Surviving Corporation
or Veeco, such FEI Stock Certificate shall be canceled, and shall be exchanged
as provided in Section 2.08 hereof.
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2.08 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 (but in no event more than three business days) 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 2.06(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 (but in
no event more than three business days after the Effective Time), the Exchange
Agent will mail to the record holders of FEI 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 FEI Stock
Certificates shall be effected, and risk of loss and title to FEI Stock
Certificates shall pass, only upon delivery of such FEI Stock Certificates to
the Exchange Agent), and (ii) instructions for use in effecting the surrender of
FEI Stock Certificates in exchange for certificates representing Veeco Shares as
contemplated by this Article II. Upon surrender of a FEI 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 FEI Stock Certificates 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 2.06 hereof (and an appropriate amount of cash in lieu of
any fractional Veeco Share otherwise issuable), and (2) the FEI Stock
Certificate so surrendered shall be canceled. Until surrendered as contemplated
by this Section 2.08, each FEI 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 FEI Stock Certificate shall
have been lost, stolen or destroyed, Veeco may, in its reasonable 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 FEI 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 FEI Stock Certificate.
(c) 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 FEI Stock Certificate with respect to the Veeco
Shares that such holder has the right to receive in the Merger until such holder
surrenders such FEI Stock Certificate in accordance with this Section 2.08 (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).
(d) Any portion of the Exchange Fund that remains undistributed to
holders of FEI 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 FEI
Stock Certificates who have not theretofore surrendered their FEI Stock
Certificates in accordance with this Section 2.08 shall thereafter look
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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.
(e) 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 FEI 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.
(f) Neither Veeco nor the Surviving Corporation shall be liable to any
holder or former holder of FEI 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.
2.09 TAX CONSEQUENCES. For federal income tax purposes, the Merger is
intended to constitute a reorganization within the meaning of Section 368 of the
Code. 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.
2.10 SUBSEQUENT ACTION. If, at any time after the Effective Time, Veeco or
the Surviving Corporation shall determine 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, or to otherwise carry out the purposes of
Merger, the officers and directors of Veeco and the Surviving Corporation shall
be authorized (in the name and on behalf of Acquisition, in the name and on
behalf of FEI or otherwise) 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 the purposes of this Merger Agreement.
III. REPRESENTATIONS AND WARRANTIES OF FEI
FEI hereby represents and warrants to and covenants and agrees with Veeco
and Acquisition that, except as set forth in the FEI Disclosure Schedule:
3.01 CORPORATE ORGANIZATION.
(a) FEI is a corporation duly organized, validly existing and in good
standing under the laws of the State of Oregon. FEI has the corporate power and
authority to own or lease all of its properties and assets and to carry on its
business as it is now being conducted, and is duly licensed or qualified to do
business in each jurisdiction in which the nature of the business conducted by
it or the character or location of the properties and assets owned or leased by
it makes such licensing or qualification necessary, except where the failure to
be so licensed or qualified would
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not, either individually or in the aggregate, have a Material Adverse Effect on
FEI. True and complete copies of the Articles of Incorporation and By-Laws of
FEI, as in effect as of the date of this Merger Agreement, have been filed by
FEI as part of the FEI SEC Documents.
(b) Each Subsidiary of FEI (i) is duly organized and validly existing
under the laws of its jurisdiction of organization, (ii) is duly qualified to do
business and in good standing in all jurisdictions (whether federal, state or
local or foreign) where its ownership or leasing of property or the conduct of
its business requires it to be so qualified and (iii) has all requisite
corporate power and authority to own or lease its properties and assets and to
carry on its business as now conducted, in each case, except as would not have a
Material Adverse Effect on FEI. Section 3.01(b) of the FEI Disclosure Schedule
contains a complete and accurate list of each Subsidiary of FEI, indicating the
jurisdiction of incorporation or organization of each such Subsidiary and FEI's
percentage ownership interest therein (including each type of security held by
FEI of each Subsidiary).
3.02 CAPITALIZATION.
(a) The authorized capital stock of FEI consists of 45,000,000 shares
of FEI Common Stock, of which 32,393,766 were issued and outstanding as of June
30, 2002, and 500,000 shares of preferred stock, none of which are outstanding.
All of the outstanding shares of FEI Common Stock have been duly authorized and
validly issued and are fully paid and nonassessable, are free of preemptive
rights, with no personal liability attaching to the ownership thereof, and were
issued in conformity with applicable Laws.
(b) As of June 30, 2002, 3,080,783 shares of FEI Common Stock (in the
aggregate) were issuable upon the exercise of options previously granted, and
1,502,299 shares of FEI Common Stock (in the aggregate) were reserved for
issuance upon the exercise of options available for grant, under FEI's stock
option plans (collectively, the "FEI OPTIONS"), 3,533,926 shares of FEI Common
Stock (in the aggregate) were issuable upon the conversion of FEI's outstanding
$175 million 5.5% Convertible Subordinated Notes due August 15, 2008 (the "FEI
CONVERTIBLE DEBT") and 391,645 shares of FEI Common Stock (in the aggregate)
were reserved for issuance under the FEI ESPP. Except as set forth above, there
are no outstanding Equity Securities, or other obligations to issue or grant any
rights to acquire any Equity Securities, of FEI or any Contracts to restructure
or recapitalize FEI. Other than in connection with the FEI Convertible Debt,
there are no outstanding Contracts of FEI or any Subsidiary of FEI to
repurchase, redeem or otherwise acquire any Equity Securities of FEI or any
Subsidiary of FEI. From December 31, 2001 to the date of this Merger Agreement,
no shares of FEI capital stock have been issued except pursuant to the exercise
of FEI Options, the FEI Convertible Debt or under the FEI ESPP. As of June 30,
2002, no shares of FEI capital stock were reserved for issuance, except for
1,893,944 shares of FEI Common Stock reserved for issuance upon exercise of FEI
Options, the FEI Convertible Debt and under the FEI ESPP. FEI has no issued or
outstanding Voting Debt.
(c) FEI owns, directly or indirectly, all of the issued and
outstanding shares of capital stock or other equity ownership interests of each
Subsidiary of FEI, free and clear of any Liens, and all of such shares or equity
ownership interests are duly authorized and validly issued and are fully paid,
non-assessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. No Subsidiary of FEI has or is bound by any
outstanding subscriptions, options, warrants, calls, commitments or agreements
of any character calling for the purchase or issuance of
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any shares of capital stock or any other Equity Security of such Subsidiary or
any securities representing the right to purchase or otherwise receive any
shares of capital stock or any other equity security of such Subsidiary. Section
3.02(c) of the FEI Disclosure Schedule sets forth a list of each material
investment of FEI in the equity (or any security convertible or exchangeable
into equity) of any Person other than its Subsidiaries.
3.03 AUTHORIZATION. FEI has full corporate power and authority to execute,
deliver and perform this Merger Agreement and the Articles of Merger, and to
consummate the transactions contemplated hereby and thereby. The execution,
delivery and performance of this Merger Agreement, the Articles 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 FEI, and no other corporate proceedings
on the part of FEI (other than the Required FEI Stockholder Vote and the filing
of the Articles of Merger) are necessary to authorize this Merger Agreement, the
Articles 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 FEI and the Articles of Merger, when executed
at the Closing, will be duly and validly executed and delivered by FEI. 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
FEI, enforceable in accordance with its terms, and the Articles of Merger, when
executed by FEI at the Closing, assuming the due authorization, execution and
delivery by each of the other parties thereto, will be legal, valid and binding
agreements of FEI, enforceable in accordance with their respective terms except
as 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.
3.04 REPORTS. All FEI SEC Documents were filed as and when required by the
Exchange Act or the Securities Act, as applicable. All documents required to be
filed as exhibits to the FEI SEC Documents have been so filed. The FEI SEC
Documents include all statements, reports and documents required to be filed by
FEI pursuant to the Exchange Act and the Securities Act. The FEI SEC Documents
comply in all material respects with the requirements of the Exchange Act and
the Securities Act, as applicable, and none of the FEI 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. None of FEI's Subsidiaries is required to file any
statements, reports or documents with the SEC. The financial statements of FEI
and its Subsidiaries, including the notes thereto, included in the FEI SEC
Documents (the "FEI 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 FEI Financial Statements fairly present the consolidated financial
condition, operating results and cash flows of FEI 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
year-end adjustments and additional footnote disclosures). There has been no
material change in FEI's accounting policies except as described in the notes to
the FEI Financial Statements. At all times since January 1, 1999, FEI has (i)
filed as and
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when due all documents required to be filed with NASDAQ, and (ii) otherwise
timely performed all of FEI's obligations pursuant to the rules and regulations
of NASDAQ.
3.05 NO UNDISCLOSED LIABILITIES. The FEI Entities do not have any
obligations or liabilities of any nature (whether matured or unmatured,
absolute, accrued, fixed or contingent) other than those (i) set forth or
adequately provided for in the Balance Sheet of FEI and its Subsidiaries
included in FEI's Annual Report on Form 10-K for the year ended December 31,
2001 (the "FEI Balance Sheet"), (ii) not required to be set forth on the FEI
Balance Sheet under GAAP consistently applied, (iii) incurred in the ordinary
course of business since the FEI Balance Sheet Date, and consistent with past
practice or (iv) which, individually or in the aggregate, would not have a
Material Adverse Effect on FEI.
3.06 COMPLIANCE WITH LAW; GOVERNMENTAL AUTHORIZATIONS.
(a) Each of the FEI Entities has complied with, is not in violation
of, and has 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 FEI.
(b) Each of the FEI Entities has obtained each federal, state, county,
local or foreign governmental Consent, approval, certificate, license, permit,
grant, or other authorization of a Governmental Authority that is required for
the operation of its business or the holding of any interest in its properties
(collectively, the "FEI AUTHORIZATIONS"), and all of such FEI Authorizations are
in full force and effect, except where the failure to obtain or have any of such
FEI Authorizations could not reasonably be expected to have a Material Adverse
Effect on FEI.
3.07 NO CONFLICTS.
(a) The execution, delivery and performance by FEI of this Merger
Agreement and the consummation of the transactions contemplated hereby will not
(i) violate any provision of the Articles of Incorporation or By-Laws or other
organizational documents of FEI or any other FEI Entity, (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, or trigger any repurchase obligation, of any debt
or obligation pursuant to, or result in the creation or imposition of any Lien
upon any property or assets of FEI or any other FEI Entity under, any material
Contract to which FEI or any other FEI Entity is a party or by which any of
their respective properties or assets are bound, or to which any of the property
or assets of FEI or any other FEI Entity are subject, except for Contracts
wherein the other party thereto has consented to the consummation of the Merger
or irrevocably waived in writing its right to take any action contemplated in
this clause (ii), (iii) violate any Law applicable to FEI or any other FEI
Entity 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 FEI or any other FEI
Entity.
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(b) No filing or registration with, or permit, authorization, Consent
or approval of, or notification or disclosure to, any Governmental Authority is
required by FEI or any other FEI Entity in connection with the execution and
delivery of this Merger Agreement or the consummation of the Merger and the
other transactions contemplated hereby, except (i) in connection with the
applicable requirements of the HSR Act or any other Regulatory Law and any other
applicable anti-trust or competition approvals, (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 and OBCA, (iv) Consents, filings or exemptions in connection with
compliance with the rules of NASDAQ, (v) such Consents, orders, registrations,
declarations and filings as may be required under the laws of various states or
(vi) such other Consents, filings and registrations the failure of which to
obtain would not reasonably be expected to have a Material Adverse Effect on
FEI.
3.08 CONTRACTS.
(a) Neither FEI nor any of its Subsidiaries is a party to or is bound
by any written contract, arrangement or commitment (i) with respect to the
employment of any directors, officers or employees other than in the ordinary
course of business consistent with past practice, (ii) which, upon the
consummation or stockholder approval of the transactions contemplated by this
Merger Agreement, will (either alone or upon the occurrence of any additional
acts or events) result in any payment (whether of severance pay or otherwise)
becoming due from FEI, Veeco, the Surviving Corporation or any of their
respective Subsidiaries to any officer or employee thereof, (iii) which is a
"material contract" (as such term is defined in Item 601(b)(10) of Regulation
S-K of the SEC) to be performed, entirely or in part, after the date of this
Merger Agreement, but which has not been previously filed with the SEC, (iv)
which are of the type required to be disclosed under Item 404 of Regulation S-K
of the SEC, but which has not been previously filed with the SEC, (v) which
materially restricts the conduct of any line of business by FEI or any
Subsidiary thereof or, upon consummation of the Merger, will materially restrict
the ability of Veeco or the Surviving Corporation or any Subsidiary thereof to
engage in any proposed line of business or (vi) which, upon the consummation or
stockholder approval of the transactions contemplated by this Merger Agreement,
will result in any of the Veeco Entities or any of the FEI Entities, granting
any rights or licenses to any material Intellectual Property of any of the Veeco
Entities or any of the FEI Entities, to any third party. Each contract,
arrangement, commitment or understanding of the type described in this Section
3.08(a), whether or not set forth in the FEI Disclosure Schedule, is referred to
herein as a "FEI CONTRACT".
(b) (i) Each FEI Contract is valid and binding on FEI and any of its
Subsidiaries that is a party thereto, as applicable, and is in full force and
effect (except to the extent such contract has expired or terminated according
to its terms), (ii) FEI and each of its Subsidiaries has in all material
respects performed all obligations required to be performed by it to date under
each FEI Contract, except where such noncompliance, either individually or in
the aggregate, would not reasonably be expected to have a Material Adverse
Effect on FEI, and (iii) neither FEI nor any of its Subsidiaries, knows of, or
has received notice of, the existence of any event or condition which
constitutes, or, after notice or lapse of time or both, will constitute, a
material default on the part of FEI or any of its Subsidiaries under any such
FEI Contract, except where such default, either individually or in the
aggregate, would not reasonably be expected to have a Material Adverse Effect on
FEI.
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3.09 LITIGATION. Except as disclosed in the FEI SEC Documents prior to the
date hereof, (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 FEI, Threatened against
FEI or any other FEI Entity 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 FEI, and (ii) there is no judgment, decree or order
against FEI or any other FEI Entity or, to the knowledge of FEI, 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 FEI.
3.10 TAXES. FEI and each of the FEI Entities has filed or caused to be
filed on a timely basis all Tax Returns that are or were required to be filed by
FEI and/or any of the other FEI Entities, 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 FEI Entities or its assets and
business. All Tax Returns filed by any of the FEI Entities are true, correct and
complete. FEI and each of the FEI Entities has paid all Taxes that have become
due by it pursuant to those Tax Returns or pursuant to any assessment received
by any of the FEI Entities, except such Taxes, if any, as are being contested in
good faith and as to which adequate reserves have been provided in the FEI
Financial Statements. All Taxes that FEI or any of the FEI Entities 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 FEI or any of the FEI Entities that
would give rise to the payment of any amount that would not be deductible by
Veeco or any of the Veeco Entities or the Surviving Corporation pursuant to
Section 280G or Section 162(m) of the Code. FEI 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 FEI Financial
Statements with respect to each of the FEI Entities (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.
3.11 ABSENCE OF CERTAIN CHANGES. Except as disclosed in or filed as an
exhibit to the FEI SEC Documents prior to the date hereof, since December 31,
2001 (the "FEI Balance Sheet Date"), the FEI Entities 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 FEI; (ii) any acquisition, sale or transfer of any
material asset of the FEI Entities 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 FEI or any revaluation by FEI of any of its assets; (iv) any
declaration, setting aside, or payment of a dividend or other distribution with
respect to the shares of FEI Common Stock or any other FEI Equity Securities
(excluding interest payments on the FEI Convertible Debt contemplated by the
Indenture relating thereto), or any direct or indirect redemption, purchase or
other acquisition by FEI of any of its shares of capital stock; (v) any material
Contract entered into by any FEI Entity, other than in the ordinary course of
business, or any material amendment or termination of, or default under, any
material Contract to which any FEI Entity is a party or by which any of them is
bound; or (vi) any
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agreement by any FEI Entity to do any of the things described in the preceding
clauses (i) through (v) (other than negotiations with Veeco and its
Representatives regarding the transactions contemplated by this Merger
Agreement).
3.12 EMPLOYEE BENEFIT PLANS; LABOR MATTERS.
(a) There does not now exist any and, to the knowledge of FEI, there
are no existing circumstances that could reasonably be expected to result in,
any Controlled Group Liability to FEI or any of its Subsidiaries that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on FEI. No FEI Benefit Plan is (i) a "multiemployer
plan" within the meaning of Section 4001(a)(3) of ERISA, (ii) a "multiple
employer plan" as defined in ERISA or the Code, or (iii) a "funded welfare plan"
within the meaning of Section 419 of the Code. None of the FEI Benefit Plans
provides for any welfare or other non-pension benefits to retired or former
employees, except to the extent required by the continuation coverage
requirements of Section 601 et. seq. of ERISA, Section 4980B of the Code or
similar state law.
(b) Except as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on FEI, (i) each of the FEI Benefit
Plans has been operated and administered in all material respects in accordance
with applicable law and administrative rules and regulations of any Governmental
Authority, including, but not limited to, ERISA and the Code, and (ii) there are
no pending or, to the knowledge of FEI, Threatened claims (other than claims for
benefits in the ordinary course), lawsuits or arbitrations that have been
asserted or instituted, and, to the knowledge of FEI, no set of circumstances
exists, that may reasonably give rise to a claim or lawsuit, against the FEI
Benefit Plans, any fiduciaries thereof with respect to their duties to the FEI
Benefit Plans or the assets of any of the trusts under any of the FEI Benefit
Plans that could reasonably be expected to result in any material liability of
FEI or any of its Subsidiaries to the PBGC, the U.S. Department of the Treasury,
the U.S. Department of Labor, any FEI Benefit Plan, any participant in a FEI
Benefit Plan, or any other party. There are no unpaid contributions due prior to
the date hereof with respect to any FEI Benefit Plan that are required to have
been made under its terms and provisions, any related insurance contract or any
applicable law.
(c) Neither FEI nor any Subsidiary of FEI is a party to any collective
bargaining or other labor union contract applicable to individuals employed by
FEI or any Subsidiary of FEI, and no collective bargaining agreement or other
labor union contract is being negotiated by FEI or any Subsidiary of FEI. Except
as would not reasonably be expected to have a Material Adverse Effect on FEI,
(i) there is no labor dispute, strike, slowdown or work stoppage against FEI or
any Subsidiary of FEI pending or, to the knowledge of FEI, Threatened against
FEI or any Subsidiary of FEI and (ii) no unfair labor practice or labor charge
or complaint has occurred with respect to FEI or any Subsidiary of FEI.
(d) Neither the execution and delivery of this Merger Agreement nor
the consummation of the transactions contemplated hereby (either alone or in
conjunction with any other event) will (i) result in any payment or benefit
(including, without limitation, option acceleration, severance, unemployment
compensation, "excess parachute payment" (within the meaning of Section 280G of
the Code), forgiveness of indebtedness or otherwise) becoming due to any
director, consultant or any current or former employee of FEI or any
Subsidiaries of FEI under any FEI consultant Benefit Plan or otherwise; (ii)
increase any benefits otherwise payable under any FEI
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Benefit Plan; (iii) result in any acceleration of the time of payment or vesting
of any such benefits; (iv) require the funding of any trust or other funding
vehicle; or (v) limit or prohibit the ability to amend, merge, terminate or
receive a reversion of assets from any FEI Benefit Plan or related trust.
(e) There has been no disallowance of a deduction, or reasonable
expectation of a disallowance of a deduction, under Section 162(m) of the Code
for employee compensation of any amount paid or payable by FEI or any Subsidiary
of FEI that, either individually or in the aggregate, would reasonably be
expected to have a Material Adverse Effect on FEI.
(f) Section 3.12(f) of the FEI Disclosure Schedule sets forth a list
of each material FEI Benefit Plan.
(g) FEI has heretofore made available to Veeco true and complete
copies of each of the FEI Benefit Plans (and all related trust agreements,
insurance contracts and other ancillary documents) and, to the extent
applicable, (i)the actuarial report for such FEI Benefit Plan for each of the
last two years, (ii)the most recent determination letter from the IRS for such
FEI Benefit Plan, (iii)the summary plan description for such FEI Benefit Plan,
and (iv)the Form 5500 for such FEI Benefit Plan for each of the last two years,
and all schedules thereto. Since the date of the documents made available, there
has not been any material change in the assets or liabilities of any of the FEI
Benefit Plans or any change in their terms and operations that could reasonably
be expected to affect or alter the tax status or materially affect the cost of
maintaining such Plan, and none of the FEI Benefit Plans has been or will be
amended prior to the Closing Date to the extent such amendment will materially
affect the cost of maintaining such Plans. Each of the FEI Benefit Plans can be
amended, modified or terminated by FEI or a Subsidiary of FEI within a period of
30 days, without payment of any additional compensation or amount or the
additional vesting or acceleration of any such benefits, except to the extent
that such vesting is required under the Code upon the complete or partial
termination of any FEI Benefit Plan intended to be qualified within the meaning
of Section 401(a) of the Code.
(h) Each FEI Benefit Plan that is intended to be qualified under
Section 401 of the Code has received a favorable determination letter from the
IRS as to the qualification of such plan (or is a prototype plan entitled to
rely on a favorable determination, opinion or advisory letter issued to the
prototype sponsor), or has remaining a period of time under applicable Treasury
regulations or IRS pronouncements in which to receive such a determination. For
each FEI Benefit Plan that has received such a determination, such letter has
not been modified, revoked or limited by the failure to satisfy any condition
thereof or by a subsequent amendment thereto, or failure to amend such FEI
Benefit Plan.
(i) Except as, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on FEI, no individual
who has been classified by FEI as a non-employee (such as an independent
contractor, leased employee or consultant) would reasonably be expected to have
a claim against FEI for eligibility to participate in any FEI Benefit Plan, if
such individual is later reclassified as a FEI employee.
(j) Except as, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect on FEI, all FEI Benefit Plans
subject to the laws of any jurisdiction outside of the United States (i) have
been maintained in accordance with all applicable
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requirements, (ii) if they are intended to qualify for special tax treatment
meet all requirements for such treatment, and (iii) if they are intended to be
funded and/or book-reserved are fully funded and/or book reserved, as
appropriate, based upon reasonable actuarial assumptions.
3.13 INTELLECTUAL PROPERTY RIGHTS.
(a) FEI and its Subsidiaries own, or are licensed to use, all FEI
Intellectual Property. To the knowledge of FEI, the business and operations of
FEI and its Subsidiaries as they are currently conducted do not infringe on the
rights of any third party where such infringement, individually or in the
aggregate, would be reasonably expected to have a Material Adverse Effect on any
Material FEI Entity or any material business or product offering of FEI or any
of its Subsidiaries, and, to the extent material FEI Intellectual Property is
licensed from a third party, FEI's use of such Intellectual Property is in
accordance in all material respects with the applicable license pursuant to
which FEI acquired the right to use such Intellectual Property. To the knowledge
of FEI, no third party is challenging, infringing on or otherwise violating any
right of FEI in the FEI Intellectual Property where such infringement,
individually or in the aggregate, would be reasonably expected to have a
Material Adverse Effect on any Material FEI Entity or any material business or
product offering of FEI or any of its Subsidiaries. Neither FEI nor any of its
Subsidiaries has received any written notice of any pending claim, order or
proceeding with respect to any material FEI Intellectual Property, nor has FEI
received any written demand from any other party to cease and desist from
infringement of such other party's Intellectual Property. To the knowledge of
FEI, no material Intellectual Property owned or licensed by FEI is being used or
enforced by FEI or its Subsidiaries in a manner that would reasonably be
expected to result in the abandonment, estoppel, cancellation or
unenforceability of such Intellectual Property.
(b) The execution, delivery and performance of this Agreement by FEI
and the consummation by FEI of the transactions contemplated hereby will not (i)
constitute a breach by FEI or its Subsidiaries of any material instrument or
agreement governing any FEI Intellectual Property, (ii) pursuant to the terms of
any material license or agreement relating to any FEI Intellectual Property,
cause the material modification of any terms of any such license or agreement,
including but not limited to the modification of the effective rate of any
royalties or other payments provided for in any such license or agreement, (iii)
cause the forfeiture or termination of any FEI Intellectual Property under the
terms thereof, (iv) give rise to a right of forfeiture or termination of any FEI
Intellectual Property under the terms thereof or (v) impair the right of FEI,
its Subsidiaries or, to FEI's knowledge, Veeco to make, have made, offer for
sale, use, sell, export or license any products or processes used by FEI, its
Subsidiaries or, to FEI's knowledge, Veeco in the conduct of their business as
it is currently configured, except in each case for those matters that
individually or in the aggregate would not reasonably be expected to have a
Material Adverse Effect on FEI.
(c) Each item of material FEI Intellectual Property owned by FEI or a
Subsidiary thereof (the "FEI-OWNED IP") (i) is free and clear of any Liens or
filings required under the Uniform Commercial Code in effect in any
jurisdiction; (ii) is not subject to any outstanding judicial order, decree,
judgment or stipulation or to any agreement materially restricting the scope of
FEI's or such Subsidiary's use thereof; and (iii) together with each item of
material FEI Intellectual Property which FEI 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, written claims or demands of any third party and
no action or proceeding, whether judicial, administrative, has been instituted,
is pending or, to FEI's
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knowledge, Threatened, which challenges or affects the rights of FEI or such
Subsidiary in the same manner.
(d) Neither FEI nor any Subsidiary thereof has entered into any
agreement to indemnify any third party against any claim of infringement,
misappropriation or other violation of FEI Intellectual Property rights other
than indemnification provisions contained in purchase orders, customer
agreements or similar agreements arising in the ordinary course of business.
(e) To the knowledge of FEI and its Subsidiaries, (a) all rights in
all inventions and discoveries made, developed or conceived by any current or
former officer, employee, independent contractor, consultant or any other agent
of FEI or any Subsidiary thereof during the course of their employment (or other
retention) by FEI or a Subsidiary thereof and material to the business of FEI or
a Subsidiary thereof and which are the subject of one or more issued letters
patent or applications for letters patent have been assigned in writing to FEI
or a Subsidiary thereof; and (b) the policy of FEI or a Subsidiary thereof
requires each employee of FEI or a Subsidiary thereof to sign documents
confirming that he or she assign to FEI or a Subsidiary thereof all Intellectual
Property rights made, written, developed or conceived by him or her during the
course of his or her employment (or other retention) by FEI or a Subsidiary
thereof and relating to the business of FEI or a Subsidiary thereof to the
extent that ownership of any such Intellectual Property rights does not vest in
FEI or a Subsidiary thereof by operation of Law.
(f) FEI believes that FEI and its Subsidiaries have taken reasonable
and practicable steps to protect and preserve the confidentiality of any
material FEI Intellectual Property that it wishes to remain confidential ("FEI
CONFIDENTIAL IP INFORMATION"). FEI believes that all use by FEI and its
Subsidiaries of FEI Confidential IP Information not owned by FEI and its
Subsidiaries has been and is pursuant to the terms of a written agreement
between FEI or a Subsidiary thereof and the owner of such Confidential
Information, or is otherwise lawful.
3.14 ABSENCE OF LIENS; TITLE TO PROPERTY.
(a) For purposes of this Agreement, "FEI Real Property" means all
interests in real property including, fee estates, leaseholds and subleaseholds,
purchase options, easements, licenses, privileges, hereditaments, appurtenances,
rights to access and rights of way, and all fixtures, buildings, structures and
other improvements thereon, owned or used by FEI, together with any additions
thereto or replacements thereof.
(b) Section 3.14(b) of the Disclosure Schedule contains the true and
correct street address of all FEI Real Property owned by FEI (the "FEI Owned
Real Property") and contains the true and correct street address of all FEI Real
Property leased by FEI and exceeding 10,000 square feet of leased area,
excluding, however, any FEI Owned Real Property or leased FEI Real Property
identified in FEI's financial statements or the FEI SEC Documents (the "FEI
Leased Real Property"). There is no other material real property that is owned
or leased by FEI or used in or necessary for the conduct of business as
presently conducted.
(c) Except as would not reasonably be expected to have a Material
Adverse Effect on FEI, all leases for material FEI Leased Real Property (the
"FEI Leases") are in good standing, valid and effective in accordance with their
respective terms, and neither FEI nor any of its
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Subsidiaries, nor to FEI's knowledge, any other party to a FEI Lease, is in
material breach, violation or default under, and neither FEI nor any of its
Subsidiaries has received written notice that it has breached, violated or
defaulted under, any of the terms or conditions of any FEI Lease. FEI has
provided Veeco with true, complete and correct copies of each FEI Lease.
(d) Except as would not reasonably be expected to have a Material
Adverse Effect on FEI, the FEI Real Property and all present uses and operations
of the FEI Real Property comply with all applicable Laws, Court Orders,
Governmental Permits, restrictions of any Governmental Body having jurisdiction
over any portion of the FEI Real Property (including, those relating to zoning,
land use, safety, health, employment and employment practices and access by the
handicapped), covenants, conditions, restrictions, easements, disposition
agreements and similar matters affecting the FEI Real Property. Except as would
not reasonably be expected to have a Material Adverse Effect on FEI, FEI has
obtained all approvals of any Governmental Body (including, certificates of use
and occupancy, licenses and permits) required in connection with the
construction, ownership, use, and occupation of the FEI Real Property and
operation of its business. (e) FEI and each of its Subsidiaries has good and
valid title to, or, in the case of leased assets, valid leasehold interests in,
all of its material tangible assets used in its business, free and clear of any
Liens, except (i) Liens reflected in the FEI Financial Statements or the FEI SEC
Documents; (ii) Liens for Taxes not yet due and payable; and (iii) Liens which
are not material to FEI and its Subsidiaries taken as a whole.
3.15 ENVIRONMENTAL MATTERS.
Except as disclosed in the FEI SEC Documents:
(a) The FEI Entities have conducted all Hazardous Substance Activities
relating to the business in compliance in all material respects with all
applicable Environmental Laws. The Hazardous Substance Activities of the FEI
Entities prior to the Closing have not resulted in the exposure of any person to
a Hazardous Substance in a manner which could reasonably be expected to result
in a Material Adverse Effect on FEI. The FEI Entities have obtained all material
permits, licenses and approvals necessary or required under all applicable
Environmental Laws for the ownership and operation of their business
("Environmental Permits"). All such Environmental Permits are valid and in full
force and effect. The FEI Entities have not received written notice of any
action to revoke or modify any of such Environmental Permits, and, to FEI's
knowledge, the ownership and operation of the FEI Entities' business is and has
been in material compliance with all terms and conditions thereof. The FEI
Entities have not received notice of any pending or Threatened claim by any
Governmental Authority or any other Person concerning potential liability of any
of the FEI Entities under Environmental Laws in connection with the ownership or
operation of its business. Except in compliance with Environmental Laws and in a
manner that could not reasonably be expected to subject the FEI Entities to
material liability, to the knowledge of the FEI Entities, no Hazardous
Substances are present on any real property currently owned, operated, occupied,
controlled or leased by the FEI Entities or were present on any other real
property at the time it ceased to be owned, operated, occupied, controlled or
leased by the FEI Entities.
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(b) The FEI Entities have made all disclosures, including notice of a
Release or Threatened Release of a Hazardous Substance, required of any FEI
Entity under any Environmental Law.
(c) No FEI Entity has received written notice, or otherwise obtained
knowledge, of the existence of any circumstances or conditions that would
reasonably be expected to result in any material environmental liability.
(d) No FEI Entity has received written notice or otherwise obtained
knowledge of any 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 any FEI Entity.
3.16 BROKERS AND FINDERS. Except for Credit Suisse First Boston ("FEI'S
BROKER"), no broker, finder, agent or similar intermediary has acted on FEI'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 FEI or
any action taken by FEI. FEI shall pay all fees and disbursements of FEI's
Broker.
3.17 REORGANIZATION. Neither FEI nor any of its Subsidiaries has taken any
action or has knowledge of any fact or circumstance that would reasonably be
expected to cause the Merger to fail to qualify as a reorganization within the
meaning of Section 368(a) of the Code.
3.18 BOARD APPROVAL. The Board of Directors of FEI has unanimously (i)
determined that the Merger is advisable, consistent with and in the furtherance
of the long-term business strategy of FEI and fair to, and in the best interests
of, FEI and its stockholders, (ii) approved this Merger Agreement, the Merger
and the other transactions contemplated by this Merger Agreement and (iii)
determined to recommend approval of the Merger by the stockholders of FEI.
3.19 OPINION OF FEI'S BROKER. The Board of Directors of FEI has received
the opinion of FEI's Broker, dated the date of this Agreement, to the effect
that, as of such date, the Exchange Ratio was fair, from a financial point of
view, to the stockholders of FEI (other than Philips and its Affiliates).
3.20 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no material agreement,
judgment, injunction, order or decree binding upon FEI or any of its
Subsidiaries which has or, to its knowledge, reasonably could be expected to
have the effect of prohibiting or materially impairing any current or proposed
future business practice of FEI or any of its Subsidiaries, any proposed
acquisition of property by FEI or any of its Subsidiaries or the conduct of
business by FEI or any of its Subsidiaries as currently conducted or as proposed
to be conducted by FEI or any of its Subsidiaries.
3.21 STATE ANTI-TAKEOVER STATUTES. FEI has granted all approvals and taken
all other steps necessary to exempt the FEI Stockholder Voting Agreements, the
Merger and the other transactions contemplated hereby from the requirements and
provisions of Section 835 of the OBCA and other state anti-takeover statutes or
regulations to the extent applicable such that none of the provisions of such
"business combination," "moratorium," "control share," or other state
anti-takeover statute or regulation (a) applies to this Merger Agreement or any
of the transactions contemplated hereby, (b)
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prohibits or restricts FEI's ability to perform its obligations under this
Merger Agreement or its ability to consummate the Merger and the other
transactions contemplated hereby, (c) would have the effect of invalidating or
voiding this Merger Agreement or any provisions hereof or (d) would subject FEI
to any material impediment or condition in connection with the exercise of any
of its rights under this Merger Agreement.
3.22 OWNERSHIP OF VEECO STOCK. As of the date of this Merger Agreement,
neither FEI nor any of its Subsidiaries own any Veeco Shares. 3.23 FORM S-4
REGISTRATION STATEMENT; JOINT PROXY STATEMENT. None of the information to be
supplied by FEI or its Subsidiaries in (i) the Form S-4 Registration Statement
will, at the time it becomes effective under the Securities Act, contain any
untrue statement of a material fact or omit to state any material fact required
to be stated therein or necessary in order to make the statements therein not
misleading and (ii) the Joint Proxy Statement will, on the date of the mailing
of the Joint Proxy Statement and any amendments or supplements thereto, at the
time of each of the FEI Stockholders' Meeting and the Veeco Stockholders'
Meeting, and at the Effective Time, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the circumstances
under which they are made, not false or misleading, or omit to state any
material fact necessary to correct any statement in any earlier communication
with respect to the solicitation of proxies for the FEI Stockholders Meeting or
the Veeco Stockholders Meeting, which has become false or misleading. The Joint
Proxy Statement will comply, as of its mailing date, as to form in all material
respects with all applicable Laws, including the provisions of the Exchange Act,
except that no representation is made by FEI with respect to information
supplied by Veeco or Acquisition for inclusion therein.
IV. REPRESENTATIONS AND WARRANTIES OF VEECO AND ACQUISITION
Veeco and Acquisition, jointly and severally, hereby represent and warrant
to and covenant and agree with FEI that, except as set forth in the Veeco
Disclosure Schedule:
4.01 CORPORATE ORGANIZATION.
(a) Veeco is a corporation duly organized, validly existing and in
good standing under the laws of the State of Delaware. Veeco has the corporate
power and authority to own or lease all of its properties and assets and to
carry on its business as it is now being conducted, and is duly licensed or
qualified to do business in each jurisdiction in which the nature of the
business conducted by it or the character or location of the properties and
assets owned or leased by it makes such licensing or qualification necessary,
except where the failure to be so licensed or qualified would not, either
individually or in the aggregate, have a Material Adverse Effect on Veeco. True
and complete copies of the Certificate of Incorporation and By-Laws of Veeco, as
in effect as of the date of this Merger Agreement, have been filed by Veeco as
part of the Veeco SEC Documents.
(b) Each Subsidiary of Veeco (i) is duly organized and validly
existing under the laws of its jurisdiction of organization, (ii) is duly
qualified to do business and in good standing in all jurisdictions (whether
federal, state or local or foreign) where its ownership or leasing of property
or the conduct of its business requires it to be so qualified and (iii) has all
requisite corporate power and authority to own or lease its properties and
assets and to carry on its business as now conducted, in each case, except as
would not have a Material Adverse Effect on Veeco. Section 4.01(b) of the
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Veeco Disclosure Schedule contains a complete and accurate list of each
Subsidiary of Veeco, indicating the jurisdiction of incorporation or
organization of each such Subsidiary and Veeco's percentage ownership interest
therein (including each type of security held by Veeco of each Subsidiary).
(c) Acquisition is a wholly owned Subsidiary of Veeco and has
conducted and will conduct no business or activity, nor has incurred or will
incur any liability or obligation, other than hereunder or in accordance with
the Merger.
4.02 CAPITALIZATION.
(a) The authorized capital stock of Veeco consists of 60,000,000 Veeco
Shares, of which 29,134,679 were issued and outstanding as of June 30, 2002, 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, are free of preemptive rights, with no personal
liability attaching to the ownership thereof, and were issued in conformity with
applicable Laws.
(b) As of June 30, 2002, 6,122,330 Veeco Shares (in the aggregate)
were issuable upon the exercise of options previously granted, and 878,286 Veeco
Shares (in the aggregate) were reserved for issuance upon the exercise of
options available for grant, under Veeco's stock option plans (collectively, the
"VEECO OPTIONS"), 5,712,802 Veeco Shares (in the aggregate) were issuable upon
the conversion of Veeco's outstanding $220 million 4.125% Convertible
Subordinated Notes due December 21, 2008 (the "VEECO CONVERTIBLE DEBT") and
78,155 shares of Veeco Shares (in the aggregate) were reserved for issuance
under the Veeco ESPP. Except as set forth above, 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. Other than in connection with the Veeco Convertible Debt, there are no
outstanding Contracts of Veeco or any Subsidiary of Veeco to repurchase, redeem
or otherwise acquire any Equity Securities of Veeco or any Subsidiary of Veeco.
From December 31, 2001 to the date of this Merger Agreement, no shares of Veeco
capital stock have been issued except pursuant to the exercise of Veeco Options,
the Veeco Convertible Debt and under the Veeco ESPP. As of June 30, 2002, no
shares of Veeco capital stock were reserved for issuance, except for 7,000,616
Veeco Shares reserved for issuance upon exercise of Veeco Options, the Veeco
Convertible Debt and under the Veeco ESPP. Veeco has no issued or outstanding
Voting Debt.
(c) Veeco owns, directly or indirectly, all of the issued and
outstanding shares of capital stock or other equity ownership interests of each
Subsidiary of Veeco, free and clear of any Liens, and all of such shares or
equity ownership interests are duly authorized and validly issued and are fully
paid, non-assessable and free of preemptive rights, with no personal liability
attaching to the ownership thereof. No Subsidiary of Veeco has or is bound by
any outstanding subscriptions, options, warrants, calls, commitments or
agreements of any character calling for the purchase or issuance of any shares
of capital stock or any other Equity Security of such Subsidiary or any
securities representing the right to purchase or otherwise receive any shares of
capital stock or any other equity security of such Subsidiary. Section 4.02(c)
of the Veeco Disclosure Schedule sets forth a list of each material investment
of Veeco in the equity (or any security convertible or exchangeable into equity)
of any Person other than its Subsidiaries.
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4.03 AUTHORIZATION. Veeco has full corporate power and authority to
execute, deliver and perform this Merger Agreement and the Articles of Merger,
and to consummate the transactions contemplated hereby and thereby. The
execution, delivery and performance of this Merger Agreement, the Articles 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 Veeco, and no other corporate
proceedings on the part of Veeco (other than the Required Veeco Stockholder Vote
and the filing of the Articles of Merger) are necessary to authorize this Merger
Agreement, the Articles 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 Veeco and the Articles of
Merger, when executed at the Closing, will be duly and validly executed and
delivered by Veeco. 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 Veeco, enforceable in accordance with its terms,
and the Articles of Merger, when executed by Veeco at the Closing, assuming the
due authorization, execution and delivery by each of the other parties thereto,
will be legal, valid and binding agreements of Veeco, enforceable in accordance
with their respective terms except as 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.
4.04 REPORTS. All Veeco SEC Documents were filed as and when required by
the Exchange Act or the Securities Act, as applicable. All documents required to
be filed as exhibits to the Veeco SEC Documents have been so filed. 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. The Veeco SEC
Documents comply in all material respects with the requirements of the Exchange
Act and the Securities Act, as applicable, and none of the Veeco 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. 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 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 NO UNDISCLOSED LIABILITIES. The Veeco Entities do not have any
obligations or liabilities of any nature (whether matured or unmatured,
absolute, accrued, fixed or contingent) other than those (i) set forth or
adequately provided for in the Balance Sheet of Veeco and its Subsidiaries
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included in Veeco's Annual Report on Form 10-K for the year ended December 31,
2001 (the "Veeco Balance Sheet"), (ii) not required to be set forth on the Veeco
Balance Sheet under GAAP consistently applied, (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.
4.06 COMPLIANCE WITH LAW; GOVERNMENTAL AUTHORIZATIONS.
(a) Each of the Veeco Entities has complied with, is not in violation
of, and has 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.
(b) Each of the Veeco Entities has obtained each federal, state,
county, local or foreign governmental Consent, approval, certificate, license,
permit, grant, or other authorization of a Governmental Authority that is
required for the operation of its 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.
4.07 NO CONFLICTS.
(a) 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 or any other
Veeco Entity, (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, or
trigger any repurchase obligation, of any debt or obligation pursuant to, or
result in the creation or imposition of any Lien upon any property or assets of
Veeco or Acquisition or any other Veeco Entity under, any material Contract to
which Veeco or Acquisition or any other Veeco Entity is a party or by which any
of their respective properties or assets are bound, or to which any of the
property or assets of Veeco or Acquisition or any other Veeco Entity are
subject, except for Contracts wherein the other party thereto has consented to
the consummation of the Merger or irrevocably waived in writing its right to
take any action contemplated in this clause (ii), (iii) violate any Law
applicable to Veeco or Acquisition or any other Veeco Entity 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 or any other Veeco
Entity.
(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 or any other Veeco Entity in connection with
the execution and delivery of this Merger Agreement or the consummation of the
Merger and the other transactions contemplated hereby, except (i) in connection
with the applicable requirements of the HSR Act or any
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other Regulatory Law and any other applicable anti-trust or competition
approvals, (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 and OBCA, (iv) Consents, filings or exemptions
in connection with compliance with the rules of NASDAQ, (v) such Consents,
orders, registrations, declarations and filings as may be required under the
laws of various states or (vi) such other Consents, filings and registrations
the failure of which to obtain would not reasonably be expected to have a
Material Adverse Effect on Veeco.
4.08 CONTRACTS.
(a) Neither Veeco nor any of its Subsidiaries is a party to or is
bound by any written contract, arrangement or commitment (i) with respect to the
employment of any directors, officers or employees other than in the ordinary
course of business consistent with past practice, (ii) which, upon the
consummation or stockholder approval of the transactions contemplated by this
Merger Agreement, will (either alone or upon the occurrence of any additional
acts or events) result in any payment (whether of severance pay or otherwise)
becoming due from FEI, Veeco, the Surviving Corporation or any of their
respective Subsidiaries to any officer or employee thereof, (iii) which is a
"material contract" (as such term is defined in Item 601(b)(10) of Regulation
S-K of the SEC) to be performed, entirely or in part, after the date of this
Merger Agreement, but which has not been previously filed with the SEC, (iv)
which are of the type required to be disclosed under Item 404 of Regulation S-K
of the SEC, but which has not been previously filed with the SEC, (v) which
materially restricts the conduct of any line of business by Veeco or any
Subsidiary thereof or, upon consummation of the Merger, will materially restrict
the ability of Veeco or the Surviving Corporation or any Subsidiary thereof to
engage in any proposed line of business or (vi) which, upon the consummation or
stockholder approval of the transactions contemplated by this Merger Agreement,
will result in any of the FEI Entities or any of the Veeco Entities, granting
any rights or licenses to any material Intellectual Property of any of the FEI
Entities or any of the Veeco Entities, to any third party. Each contract,
arrangement, commitment or understanding of the type described in this Section
4.08(a), whether or not set forth in the Veeco Disclosure Schedule, is referred
to herein as a "VEECO CONTRACT".
(b) (i) Each Veeco Contract is valid and binding on Veeco and any of
its Subsidiaries that is a party thereto, as applicable, and is in full force
and effect (except to the extent such contract has expired or terminated
according to its terms), (ii) Veeco and each of its Subsidiaries has in all
material respects performed all obligations required to be performed by it to
date under each Veeco Contract, except where such noncompliance, either
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect on Veeco, and (iii) neither Veeco nor any of its
Subsidiaries, knows of, or has received notice of, the existence of any event or
condition which constitutes, or, after notice or lapse of time or both, will
constitute, a material default on the part of Veeco or any of its Subsidiaries
under any such Veeco Contract, except where such default, either individually or
in the aggregate, would not reasonably be expected to have a Material Adverse
Effect on Veeco.
4.09 LITIGATION. Except as disclosed in the Veeco SEC Documents prior to
the date hereof, (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,
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Threatened against Veeco or any other Veeco Entity 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 other Veeco Entity or, to the knowledge of Veeco,
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.
4.10 TAXES. Veeco and each of the Veeco Entities has 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 the other Veeco Entities, 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 Veeco Entities or its assets and
business. All Tax Returns filed by any of the Veeco Entities are true, correct
and complete. Veeco and each of the Veeco Entities has paid all Taxes that have
become due by it pursuant to those Tax Returns or pursuant to any assessment
received by any of the Veeco Entities, except such Taxes, if any, as are being
contested in good faith and as to which adequate reserves have been provided in
the Veeco Financial Statements. All Taxes that Veeco or any of the Veeco
Entities 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 the Veeco Entities that would give rise to the payment of any amount that
would not be deductible by Veeco or any of the Veeco Entities or the Surviving
Corporation pursuant to Section 280G or Section 162(m) of the Code. Veeco 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 Veeco Financial Statements with respect to each of the Veeco Entities
(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.
4.11 ABSENCE OF CERTAIN CHANGES. Except as disclosed in or filed as an
exhibit to the Veeco SEC Documents prior to the date hereof, since December 31,
2001 (the "VEECO BALANCE SHEET DATE"), the Veeco Entities 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 the Veeco Entities 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 Veeco Shares or any other Veeco Equity
Securities (excluding interest payments on the Veeco Convertible Debt
contemplated by the Indenture relating thereto), 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 any Veeco Entity, other
than in the ordinary course of business, or any material amendment or
termination of, or default under, any material Contract to which any Veeco
Entity is a party or by which any of them is bound; or (vi) any agreement by any
Veeco Entity to do any of the things described in the preceding clauses (i)
through (v) (other than negotiations with FEI and its Representatives regarding
the transactions contemplated by this Merger Agreement).
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4.12 EMPLOYEE BENEFIT PLANS; LABOR MATTERS.
(a) There does not now exist any and, to the knowledge of Veeco, there
are no existing circumstances that could reasonably be expected to result in,
any Controlled Group Liability to Veeco or any of its Subsidiaries that,
individually or in the aggregate, would reasonably be expected to have a
Material Adverse Effect on Veeco. No Veeco Benefit Plan is (i) a "multiemployer
plan" within the meaning of Section 4001(a)(3) of ERISA, (ii) a "multiple
employer plan" as defined in ERISA or the Code, or (iii) a "funded welfare plan"
within the meaning of Section 419 of the Code. None of the Veeco Benefit Plans
provides for any welfare or other non-pension benefits to retired or former
employees, except to the extent required by the continuation coverage
requirements of Section 601 et. seq. of ERISA, Section 4980B of the Code or
similar state law.
(b) Except as would not reasonably be expected, individually or in the
aggregate, to have a Material Adverse Effect on Veeco, (i) each of the Veeco
Benefit Plans has been operated and administered in all material respects in
accordance with applicable law and administrative rules and regulations of any
Governmental Authority, including, but not limited to, ERISA and the Code, and
(ii) there are no pending or, to the knowledge of Veeco, Threatened claims
(other than claims for benefits in the ordinary course), lawsuits or
arbitrations that have been asserted or instituted, and, to the knowledge of
Veeco, no set of circumstances exists, that may reasonably give rise to a claim
or lawsuit, against the Veeco Benefit Plans, any fiduciaries thereof with
respect to their duties to the Veeco Benefit Plans or the assets of any of the
trusts under any of the Veeco Benefit Plans that could reasonably be expected to
result in any material liability of Veeco or any of its Subsidiaries to the
PBGC, the U.S. Department of the Treasury, the U.S. Department of Labor, any
Veeco Benefit Plan, any participant in a Veeco Benefit Plan, or any other party.
There are no unpaid contributions due prior to the date hereof with respect to
any Veeco Benefit Plan that are required to have been made under its terms and
provisions, any related insurance contract or any applicable law.
(c) Neither Veeco nor any Subsidiary of Veeco is a party to any
collective bargaining or other labor union contract applicable to individuals
employed by Veeco or any Subsidiary of Veeco, and no collective bargaining
agreement or other labor union contract is being negotiated by Veeco or any
Subsidiary of Veeco. Except as would not reasonably be expected to have a
Material Adverse Effect on Veeco, (i) there is no labor dispute, strike,
slowdown or work stoppage against Veeco or any Subsidiary of Veeco pending or,
to the knowledge of Veeco, Threatened against Veeco or any Subsidiary of Veeco
and (ii) no unfair labor practice or labor charge or complaint has occurred with
respect to Veeco or any Subsidiary of Veeco.
(d) Neither the execution and delivery of this Merger Agreement nor
the consummation of the transactions contemplated hereby (either alone or in
conjunction with any other event) will (i) result in any payment or benefit
(including, without limitation, option acceleration, severance, unemployment
compensation, "excess parachute payment" (within the meaning of Section 280G of
the Code), forgiveness of indebtedness or otherwise) becoming due to any
director, consultant or any current or former employee of Veeco or any
Subsidiaries of Veeco under any Veeco consultant Benefit Plan or otherwise; (ii)
increase any benefits otherwise payable under any Veeco Benefit Plan; (iii)
result in any acceleration of the time of payment or vesting of any such
benefits; (iv) require the funding of any trust or other funding vehicle; or (v)
limit or prohibit the
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ability to amend, merge, terminate or receive a reversion of assets from any
Veeco Benefit Plan or related trust.
(e) There has been no disallowance of a deduction, or reasonable
expectation of a disallowance of a deduction, under Section 162(m) of the Code
for employee compensation of any amount paid or payable by Veeco or any
Subsidiary of Veeco that, either individually or in the aggregate, would
reasonably be expected to have a Material Adverse Effect on Veeco.
(f) Section 4.12(f) of the Veeco Disclosure Schedule sets forth a list
of each material Veeco Benefit Plan.
(g) Veeco has heretofore made available to FEI true and complete
copies of each of the Veeco Benefit Plans (and all related trust agreements,
insurance contracts and other ancillary documents) and, to the extent
applicable, (i) the actuarial report for such Veeco Benefit Plan for each of the
last two years, (ii) the most recent determination letter from the IRS for such
Veeco Benefit Plan, (iii) the summary plan description for such Veeco Benefit
Plan, and (iv) the Form 5500 for such Veeco Benefit Plan for each of the last
two years, and all schedules thereto. Since the date of the documents made
available, there has not been any material change in the assets or liabilities
of any of the Veeco Benefit Plans or any change in their terms and operations
that could reasonably be expected to affect or alter the tax status or
materially affect the cost of maintaining such Plan, and none of the Veeco
Benefit Plans has been or will be amended prior to the Closing Date to the
extent such amendment will materially affect the cost of maintaining such Plans.
Each of the Veeco Benefit Plans can be amended, modified or terminated by Veeco
or a Subsidiary of Veeco within a period of 30 days, without payment of any
additional compensation or amount or the additional vesting or acceleration of
any such benefits, except to the extent that such vesting is required under the
Code upon the complete or partial termination of any Veeco Benefit Plan intended
to be qualified within the meaning of Section 401(a) of the Code.
(h) Each Veeco Benefit Plan that is intended to be qualified under
Section 401 of the Code has received a favorable determination letter from the
IRS as to the qualification of such plan (or is a prototype plan entitled to
rely on a favorable determination, opinion or advisory letter issued to the
prototype sponsor), or has remaining a period of time under applicable Treasury
regulations or IRS pronouncements in which to receive such a determination. For
each Veeco Benefit Plan that has received such a determination, such letter has
not been modified, revoked or limited by the failure to satisfy any condition
thereof or by a subsequent amendment thereto, or failure to amend such Veeco
Benefit Plan.
(i) Except as, either individually or in the aggregate, would not
reasonably be expected to have a Material Adverse Effect on Veeco, no individual
who has been classified by Veeco as a non-employee (such as an independent
contractor, leased employee or consultant) would reasonably be expected to have
a claim against Veeco for eligibility to participate in any Veeco Benefit Plan,
if such individual is later reclassified as a Veeco employee.
(j) Except as, individually or in the aggregate, would not reasonably
be expected to have a Material Adverse Effect on Veeco, all Veeco Benefit Plans
subject to the laws of any jurisdiction outside of the United States (i) have
been maintained in accordance with all applicable requirements, (ii) if they are
intended to qualify for special tax treatment meet all requirements for
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such treatment, and (iii) if they are intended to be funded and/or book-reserved
are fully funded and/or book reserved, as appropriate, based upon reasonable
actuarial assumptions.
4.13 INTELLECTUAL PROPERTY RIGHTS.
(a) Veeco and its Subsidiaries own, or are licensed to use, all Veeco
Intellectual Property. To the knowledge of Veeco, the business and operations of
Veeco and its Subsidiaries as they are currently conducted do not infringe on
the rights of any third party where such infringement, individually or in the
aggregate, would be reasonably expected to have a Material Adverse Effect on any
Material Veeco Entity or any material business or product offering of Veeco or
any of its Subsidiaries, and, to the extent material Veeco Intellectual Property
is licensed from a third party, Veeco's use of such Intellectual Property is in
accordance in all material respects with the applicable license pursuant to
which Veeco acquired the right to use such Intellectual Property. To the
knowledge of Veeco, no third party is challenging, infringing on or otherwise
violating any right of Veeco in the Veeco Intellectual Property where such
infringement, individually or in the aggregate, would be reasonably expected to
have a Material Adverse Effect on any Material Veeco Entity or any material
business or product offering of Veeco or any of its Subsidiaries. Since Neither
Veeco nor any of its Subsidiaries has received any written notice of any pending
claim, order or proceeding with respect to any material Veeco Intellectual
Property, nor has Veeco received any written demand from any other party to
cease and desist from infringement of such other party's Intellectual Property.
To the knowledge of Veeco, no material Intellectual Property owned or licensed
by Veeco is being used or enforced by Veeco or its Subsidiaries in a manner that
would reasonably be expected to result in the abandonment, estoppel,
cancellation or unenforceability of such Intellectual Property.
(b) The execution, delivery and performance of this Agreement by Veeco
and the consummation by Veeco of the transactions contemplated hereby will not
(i) constitute a breach by Veeco or its Subsidiaries of any material instrument
or agreement governing any Veeco Intellectual Property, (ii) pursuant to the
terms of any material license or agreement relating to any Veeco Intellectual
Property, cause the material modification of any terms of any such license or
agreement, including but not limited to the modification of the effective rate
of any royalties or other payments provided for in any such license or
agreement, (iii) cause the forfeiture or termination of any Veeco Intellectual
Property under the terms thereof, (iv) give rise to a right of forfeiture or
termination of any Veeco Intellectual Property under the terms thereof or (v)
impair the right of Veeco, its Subsidiaries or, to Veeco's knowledge, FEI to
make, have made, offer for sale, use, sell, export or license any products or
processes used by Veeco, its Subsidiaries or, to Veeco's knowledge, FEI in the
conduct of their business as it is currently configured, except in each case for
those matters that individually or in the aggregate would not reasonably be
expected to have a Material Adverse Effect on Veeco.
(c) Each item of material Veeco Intellectual Property owned by Veeco
or a Subsidiary thereof (the "VEECO-OWNED IP") (i) is free and clear of any
Liens or filings required under the Uniform Commercial Code in effect in any
jurisdiction; (ii) is not subject to any outstanding judicial order, decree,
judgment or stipulation or to any agreement materially restricting the scope of
Veeco's or such Subsidiary's use thereof; and (iii) together with each item of
material 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, written claims or
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demands of any third party and no action or proceeding, whether judicial,
administrative, 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 manner.
(d) 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 or similar agreements arising in the ordinary course of business.
(e) To the knowledge of Veeco and its Subsidiaries, (a) all rights in
all inventions and discoveries made, developed or conceived by any current or
former officer, employee, independent contractor, consultant or any other agent
of Veeco or any Subsidiary thereof 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 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; and (b) 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
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
to the extent that ownership of any such Intellectual Property rights does not
vest in Veeco or a Subsidiary thereof by operation of Law.
(f) Veeco believes that Veeco and its Subsidiaries have taken
reasonable and practicable steps to protect and preserve the confidentiality of
any material Veeco Intellectual Property that it wishes to remain confidential
("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.
4.14 ABSENCE OF LIENS; TITLE TO PROPERTY.
(a) For purposes of this Agreement, "Veeco Real Property" means all
interests in real property including, fee estates, leaseholds and subleaseholds,
purchase options, easements, licenses, privileges, hereditaments, appurtenances,
rights to access and rights of way, and all fixtures, buildings, structures and
other improvements thereon, owned or used by Veeco, together with any additions
thereto or replacements thereof.
(b) Section 4.14(b) of the Disclosure Schedule contains the true and
correct street address of all Veeco Real Property owned by Veeco (the "Veeco
Owned Real Property") and contains the true and correct street address of all
Veeco Real Property leased by Veeco and exceeding 10,000 square feet of leased
area, excluding, however, any Veeco Owned Real Property or leased Veeco Real
Property identified in Veeco's financial statements or the Veeco SEC Documents
(the "Veeco Leased Real Property"). There is no other material real property
that is owned or leased by Veeco or used in or necessary for the conduct of
business as presently conducted.
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(c) Except as would not reasonably be expected to have a Material Adverse Effect
on Veeco, all leases for material Veeco Leased Real Property (the "Veeco
Leases") are in good standing, valid and effective in accordance with their
respective terms, and neither Veeco nor any of its Subsidiaries, nor to Veeco's
knowledge, any other party to a Veeco Lease, is in material breach, violation or
default under, and neither Veeco nor any of its Subsidiaries has received
written notice that it has breached, violated or defaulted under, any of the
terms or conditions of any Veeco Lease. Veeco has provided FEI with true,
complete and correct copies of each Veeco Lease.
(d) Except as would not reasonably be expected to have a Material
Adverse Effect on Veeco, the Veeco Real Property and all present uses and
operations of the Veeco Real Property comply with all applicable Laws, Court
Orders, Governmental Permits, restrictions of any Governmental Body having
jurisdiction over any portion of the Veeco Real Property (including, those
relating to zoning, land use, safety, health, employment and employment
practices and access by the handicapped), covenants, conditions, restrictions,
easements, disposition agreements and similar matters affecting the Veeco Real
Property. Except as would not reasonably be expected to have a Material Adverse
Effect on Veeco, Veeco has obtained all approvals of any Governmental Body
(including, certificates of use and occupancy, licenses and permits) required in
connection with the construction, ownership, use, and occupation of the Veeco
Real Property and operation of its business.
(e) Veeco and each of its Subsidiaries has good and valid title to,
or, in the case of leased assets, valid leasehold interests in, all of its
material tangible assets used in its business, free and clear of any Liens,
except (i) Liens reflected in the Veeco Financial Statements or the Veeco SEC
Documents; (ii) Liens for Taxes not yet due and payable; and (iii) Liens which
are not material to Veeco and its Subsidiaries taken as a whole.
4.15 ENVIRONMENTAL MATTERS.
Except as disclosed in the Veeco SEC Documents:
(a) The Veeco Entities have conducted all Hazardous Substance
Activities relating to the business in compliance in all material respects with
all applicable Environmental Laws. The Hazardous Substance Activities of the
Veeco Entities prior to the Closing have not resulted in the exposure of any
person to a Hazardous Substance in a manner which could reasonably be expected
to result in a Material Adverse Effect on Veeco. The Veeco Entities have
obtained all material Environmental Permits. All such Environmental Permits are
valid and in full force and effect. The Veeco Entities have not received written
notice of any action to revoke or modify any of such Environmental Permits, and,
to Veeco's knowledge the ownership and operation of the Veeco Entities' business
is and has been in material compliance with all terms and conditions thereof.
The Veeco Entities have not received notice of any pending or Threatened claim
by any Governmental Authority or any other Person concerning potential liability
of any of the Veeco Entities under Environmental Laws in connection with the
ownership or operation of its business. Except in compliance with Environmental
Laws and in a manner that could not reasonably be expected to subject the Veeco
Entities to material liability, to the knowledge of the Veeco Entities, no
Hazardous Substances are present on any real property currently owned, operated,
occupied, controlled or leased by the Veeco Entities or were present on any
other real property at the time it ceased to be owned, operated, occupied,
controlled or leased by the Veeco Entities.
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(b) The Veeco Entities have made all disclosures, including notice of
a Release or Threatened Release of a Hazardous Substance, required of any Veeco
Entity under any Environmental Law.
(c) No Veeco Entity has received written notice, or otherwise obtained
knowledge, of the existence of any circumstances or conditions that would
reasonably be expected to result in any material environmental liability.
(d) No Veeco Entity has received written notice or otherwise obtained
knowledge of any 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 any Veeco Entity.
4.16 BROKERS AND FINDERS. Except for Salomon Smith Barney Inc. ("VEECO'S
BROKER"), 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.
4.17 REORGANIZATION. Neither Veeco nor any of its Subsidiaries has taken
any action or has knowledge of any fact or circumstance that would reasonably be
expected to cause the Merger to fail to qualify as a reorganization within the
meaning of Section 368(a) of the Code.
4.18 BOARD APPROVAL. The Board of Directors of Veeco has unanimously (i)
determined that the Merger is advisable, consistent with and in the furtherance
of the long-term business strategy of Veeco and fair to, and in the best
interests of, Veeco and its stockholders, (ii) approved this Merger Agreement,
the Merger and the other transactions contemplated by this Merger Agreement and
(iii) approved and determined to recommend that the stockholders of Veeco vote
to approve the issuance of the Veeco Shares in the Merger.
4.19 OPINION OF VEECO'S BROKER. The Board of Directors of Veeco has
received the opinion of Veeco's Broker, dated as of the date of this Merger
Agreement, to the effect that, as of such date, the Exchange Ratio was fair,
from a financial point of view, to Veeco.
4.20 RESTRICTIONS ON BUSINESS ACTIVITIES. There is no material agreement,
judgment, injunction, order or decree binding upon Veeco or any of its
Subsidiaries which has or, to its knowledge, reasonably could be expected to
have the effect of prohibiting or materially impairing any current or proposed
future business practice of Veeco or any of its Subsidiaries, any proposed
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.
4.21 STATE ANTI-TAKEOVER STATUTES. Veeco has granted all approvals and
taken all other steps necessary to exempt the Veeco Stockholder Voting
Agreements, the Merger and the other transactions contemplated hereby from the
requirements and provisions of Section 203 of the DGCL and other state
anti-takeover statutes or regulations to the extent applicable such that none of
the provisions of such "business combination," "moratorium," "control share," or
other state anti-takeover statute or regulation (a) applies to this Merger
Agreement or any of the transactions
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contemplated hereby, (b) prohibits or restricts Veeco's ability to perform its
obligations under this Merger Agreement or its ability to consummate the Merger
and the other transactions contemplated hereby, (c) would have the effect of
invalidating or voiding this Merger Agreement or any provisions hereof or (d)
would subject Veeco to any material impediment or condition in connection with
the exercise of any of its rights under this Merger Agreement.
4.22 OWNERSHIP OF FEI STOCK. As of the date of this Merger Agreement,
neither Veeco nor any of its Subsidiaries own any shares of FEI Common Stock.
4.23 FORM S-4 REGISTRATION STATEMENT; JOINT PROXY STATEMENT. None of the
information to be supplied by Veeco or its Subsidiaries in (i) the Form S-4
Registration Statement will, at the time it becomes effective under the
Securities Act, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary in order to make
the statements therein not misleading and (ii) the Joint Proxy Statement will,
on the date of the mailing of the Joint Proxy Statement and any amendments or
supplements thereto, at the time of each of the Veeco Stockholders' Meeting and
the FEI Stockholders' Meeting, and at the Effective Time, contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary in order to make the statements therein, in light of
the circumstances under which they are made, not false or misleading, or omit to
state any material fact necessary to correct any statement in any earlier
communication with respect to the solicitation of proxies for the FEI
Stockholders Meeting or the Veeco Stockholders Meeting, which has become false
or misleading. The Joint Proxy Statement will comply, as of its mailing date, as
to form in all material respects with all applicable Laws, including the
provisions of the Exchange Act, except that no representation is made by Veeco
with respect to information supplied by FEI for inclusion therein.
4.24 VEECO RIGHTS AGREEMENT. The Board of Directors of Veeco has amended
(in the form provided to FEI) the Veeco Rights Agreement so that none of FEI or
its Affiliates shall become an "Acquiring Person," and no "Distribution Date" or
"Triggering Event" (as such terms are defined in the Veeco Rights Agreement)
will occur as a result of the approval, execution or delivery of this Merger
Agreement or the Veeco Stockholder Voting Agreements or the consummation of the
transactions contemplated hereby and thereby.
V. COVENANTS
5.01 ACCESS. Between the date hereof and the Closing Date, upon reasonable
notice, FEI shall, and shall cause each of the other FEI Entities to, provide
Veeco, Acquisition and each of their authorized Representatives with such
reasonable access to the properties, books, records, Tax Returns, Contracts,
information, documents and personnel of the FEI Entities as they relate to the
FEI Entities' business during normal business hours as Veeco or Acquisition may
reasonably request for the purpose of making such investigation of the business,
properties, financial condition, operations and results of operations of the FEI
Entities' business as Veeco or Acquisition may deem appropriate or necessary.
Between the date hereof and the Closing Date, upon reasonable notice, Veeco
shall, and shall cause each of the other Veeco Entities to, provide FEI and each
of its authorized Representatives with such reasonable access to the properties,
books, records, Tax Returns, Contracts, information, documents and personnel of
the Veeco Entities as they relate to the Veeco Entities' business during normal
business hours as FEI may reasonably request for the purpose of making such
investigation of the business, properties, financial condition, operations and
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results of operations of the Veeco Entities' business as FEI 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.
During the period commencing with the execution and delivery of this Merger
Agreement and continuing until the earlier to occur of the termination of this
Merger Agreement pursuant to its terms and the Closing Date, except (i) as
otherwise expressly permitted by this Merger Agreement, (ii) in the case of FEI
as provided in SCHEDULE 5.02 of the FEI Disclosure Schedule and in the case of
Veeco and Acquisition as provided in SCHEDULE 5.02 of the Veeco Disclosure
Schedule, or (iii) to the extent that the other party shall otherwise consent in
writing (which consent shall not be unreasonably withheld), each of FEI (which
for the purposes of this Section 5.02 shall include FEI and each of its
Subsidiaries) and Veeco (which for the purposes of this Section 5.02 shall
include Veeco and each of its Subsidiaries), shall (a) carry on its respective
businesses in the usual, regular and ordinary course consistent with past
practice in all material respects, in substantially the same manner as
heretofore conducted and in compliance with all applicable Laws, (b) shall use
its reasonable commercial efforts to keep available the services of its present
officers and key employees, consistent with past practice, preserve intact its
present lines of business, maintain its rights and franchises and preserve its
relationships with material customers, suppliers and others having business
dealings with it to the end that its ongoing businesses shall not be impaired in
any material respect on or after the Closing Date, (c) pay its debts and Taxes
when due (unless being contested or disputed in good faith), (d) pay or perform
other material obligations when due, (e) keep in force all insurance policies,
and (f) otherwise ensure that its ongoing businesses shall not be impaired in
any material respect on or after the Closing Date. Except as otherwise expressly
permitted by this Merger Agreement, during the period commencing with the
execution and delivery of this Merger Agreement and continuing until the earlier
to occur of the termination of this Merger Agreement pursuant to its terms and
the Closing Date, none of FEI, Veeco or Acquisition shall, without the prior
consent of the other Parties (which consent shall not be unreasonably withheld),
take any affirmative action, or fail to take any reasonable action within its
control, as a result of which any of the changes or events listed in Section
3.11 or 4.11, as applicable, of this Merger Agreement is reasonably likely to
occur. During the period commencing with the execution and delivery of this
Merger Agreement and continuing until the earlier to occur of the termination of
this Merger Agreement pursuant to its terms and the Closing Date, FEI shall
confer with Veeco concerning operational matters of the FEI Entities of a
material nature and otherwise report periodically to Veeco concerning the status
of the FEI Entities' business, operations and finances. During the period
commencing with the execution and delivery of this Merger Agreement and
continuing until the earlier to occur of the termination of this Merger
Agreement pursuant to its terms and the Closing Date, Veeco shall confer with
FEI concerning operational matters of the Veeco Entities of a material nature
and otherwise report periodically to FEI concerning the status of the Veeco
Entities' business, operations and finances. In furtherance of the foregoing and
subject to applicable Law, FEI and Veeco shall confer, as promptly as
practicable, prior to taking any material actions or making any material
management decisions with respect to the conduct of its business during the
foregoing period.
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5.03 RESTRICTED CONDUCT. Without limiting Section 5.02, except as expressly
contemplated by this Merger Agreement or as set forth on SCHEDULE 5.03 of the
FEI Disclosure Schedule or of the Veeco Disclosure Schedule, during the period
commencing with the execution and delivery of this Merger Agreement and
continuing until the earlier to occur of the termination of this Merger
Agreement pursuant to its terms and the Closing Date, neither FEI (which for the
purposes of this Section 5.03 shall include FEI and each of its Subsidiaries)
nor Veeco (which for the purposes of this Section 5.03 shall include Veeco and
each of its Subsidiaries) 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 Articles of Incorporation or Bylaws or other
governing documents;
(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 pursuant to existing option plans or upon the
exercise or conversion of Veeco Options outstanding as of the date of this
Merger Agreement, FEI Options outstanding as of the date of this Merger
Agreement, the Veeco Convertible Debt, the FEI Convertible Debt, under the Veeco
ESPP or under the FEI ESPP or other convertible or exchangeable securities
outstanding as of the date of this Merger Agreement;
(c) REORGANIZATION. Take or fail to take any action that would
reasonably be expected to cause the Merger to fail to qualify as a
reorganization within the meaning of Section 368(a) of the Code.
(d) NO ACQUISITIONS. Acquire or agree to acquire by merger or
consolidation, or by purchasing a substantial portion of the assets of, or by
any other manner, any business or any corporation, partnership, association or
other business organization or division thereof or otherwise acquire or agree to
acquire any assets which could be material to the acquiror (excluding the
acquisition of assets used in the operations of its and its Subsidiaries'
business in the ordinary course, which assets do not constitute a business unit,
division or all or substantially all of the assets of the transferor);
(e) ORDINARY COURSE. Other than in the ordinary course of business (i)
enter into any new material line of business or (ii) incur or commit to any
capital expenditures or any obligations or liabilities in connection therewith;
(f) ISSUANCE OF SECURITIES. Issue, deliver, sell, pledge, dispose of,
or otherwise encumber, or authorize or propose the issuance, delivery, sale,
pledge, disposition or encumbrance of, any shares of its capital stock of any
class, any Voting Debt or any securities convertible into or exercisable for, or
any rights, warrants, calls, or options to acquire, any such shares or Voting
Debt,
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or enter into any commitment, arrangement, undertaking or agreement with respect
to any of the foregoing, other than or in connection with (A) the issuance of
shares upon the exercise of Veeco Options or FEI Options (as applicable) or the
Veeco Convertible Debt or the FEI Convertible Debt (as applicable) in accordance
with their present terms or pursuant to Veeco Options or FEI Options (as
applicable) or other stock-based awards granted pursuant to clause (B) below,
(B) the granting of Veeco Options or FEI Options (as applicable) or other
stock-based awards, (excluding the granting of "reload" stock options (e.g.
stock options that, pursuant to the terms thereof require a new grant of options
to the holder upon the exercise of such initial options)), under Benefit Plans
outstanding on the date hereof in the ordinary course of business and in
individual and aggregate amounts consistent with past practice or (C) issuances,
sales or deliveries by a wholly owned Subsidiary to its parent;
(g) LIQUIDATION; DISSOLUTION. Adopt a plan of complete or partial
liquidation, dissolution, consolidation, restructuring, recapitalization or
other reorganization;
(h) CHANGES IN ACCOUNTING METHODS. Except as required by GAAP, make
any change in accounting methods, principles or practices;
(i) JOINT VENTURES. Enter into any material joint venture, partnership
or similar arrangement;
(j) NO DISPOSITIONS. Sell, lease or otherwise dispose of, or agree to
sell, lease or otherwise dispose of, any of its assets (including capital stock
of Subsidiaries) other than in the ordinary course of business consistent with
past practice;
(k) INVESTMENTS; INDEBTEDNESS. (A) Make any loans, advances or capital
contributions to, or investments in, any other Person, other than (I) loans or
investments in a Subsidiary or (II) in the ordinary course of business
consistent with past practice which are not, individually or in the aggregate,
material (provided that none of such transactions referred to in this Clause
(II) presents a material risk of making it more difficult to obtain any Consent
required in connection with the Merger under Regulatory Law) or (B) except in
the ordinary course consistent with past practice, incur any indebtedness for
borrowed money or guarantee any such indebtedness of another Person, issue or
sell any debt securities or warrants or other rights to acquire any debt
securities, guarantee any debt securities of another Person, enter into any
"keep well" or other agreement to maintain any financial statement condition of
another Person (other than a wholly owned Subsidiary) or enter into any
arrangement having the economic effect of any of the foregoing;
(l) COMPENSATION. Except as required by Law or by the terms of any
collective bargaining agreement or other agreement in effect as of the date of
this Merger Agreement, increase the amount of compensation of, or pay any
severance to (other than in the ordinary course consistent with past practice),
any director, officer or (other than in the ordinary course consistent with past
practice) key employee, or make any increase in or commitment to increase or
accelerate the payment of any employee benefits, grant any additional stock
options (except as permitted by Section 5.03(f)), adopt or amend or make any
commitment to adopt or amend any Benefit Plan or fund or make any contribution
to any Benefit Plan or any related trust or other funding vehicles, other than
regularly scheduled contributions to trust funding qualified plans; and shall
not accelerate the vesting of, or the lapsing of restrictions with respect to
any stock option, and any option granted
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or committed to be granted after the date of this Merger Agreement shall not
accelerate as a result of approval or consummation of any transaction
contemplated by this Merger Agreement;
(m) INTELLECTUAL PROPERTY. Transfer or license to any Person or
otherwise extend, amend or modify any rights to any intellectual property owned
by it or its Subsidiaries, other than in the ordinary course of business or
pursuant to any Contracts currently in place (that have been disclosed in
writing to the other party hereto prior to the date of this Merger Agreement);
(n) CERTAIN ACTIONS. Other than as expressly permitted by Section 5.16
in the case of FEI or 5.17 in the case of Veeco, take any action for the purpose
of preventing, delaying or impeding the consummation of the Merger or the other
transactions contemplated by this Merger Agreement; or
(o) OTHER. Take, or agree in writing or otherwise to take, any of the
actions described in Sections 5.03(a) through (n) above.
5.04 CONSENTS.
(a) FEI, 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 FEI Contracts and the Veeco
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 FEI Contracts and Veeco Contracts
after the consummation of the transactions contemplated by this Merger
Agreement.
(b) FEI 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, FEI and Veeco shall, promptly after the date of this Merger
Agreement, prepare and file the notifications required under the HSR Act (within
20 days following the date of this Merger Agreement) and any applicable foreign
antitrust Laws or regulations in connection with the Merger that are reasonably
determined by the parties to apply. FEI 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 FEI 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 Authority or by any Law, FEI 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,
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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
FEI and Veeco will permit authorized outside legal counsel of the other party,
to the extent necessary for any joint defense or mutually agreed to by FEI's and
Veeco's respective outside legal counsel, 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, briefing, opinion or proposal made or
submitted to any Governmental Authority in connection with any such Legal
Proceeding. Notwithstanding anything to the contrary in this Merger Agreement,
neither Veeco nor FEI nor any of their respective Subsidiaries shall be required
to hold separate (including by trust or otherwise) or to divest or agree to
divest any of their respective businesses or assets, or to take or agree to take
any action or agree to any limitation that would be reasonably likely to have a
Material Adverse Effect on Veeco (assuming the Merger has been consummated) or
would be reasonably likely to materially adversely impact the benefits expected
to be derived by Veeco and FEI from consummation of the Merger, and neither
Veeco nor FEI shall be required to agree to or effect any divestiture, hold
separate any business or take any other action that is not conditional on the
consummation of the Merger.
5.05 STOCK OPTIONS.
(a) At the Effective Time, all rights with respect to FEI Common Stock
under FEI Options then outstanding shall be converted into and become rights
with respect to Veeco Shares, and Veeco shall assume each such FEI 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 FEI 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 FEI Option shall be equal to the product of (A) the number of
shares of FEI Common Stock subject to such FEI 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 FEI Option shall
be adjusted by dividing (x) the per share exercise price under such FEI Option
by (y) the Exchange Ratio and rounding to the nearest cent and (iv) any
restriction on the exercise or transfer of any such FEI 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 FEI Option shall
otherwise remain unchanged. Veeco shall file with the SEC, no later than the
date on which the Merger becomes effective, a registration statement on Form S-8
relating to the Veeco Shares issuable with respect to FEI Options assumed by
Veeco in accordance with this Section 5.05(a).
(b) It is the intention of the parties that the FEI Options so assumed
by Veeco shall qualify, to the maximum extent permissible following the
Effective Time, as incentive stock options, as defined in Section 422 of the
Code, to the extent the FEI Options so assumed qualified as incentive stock
options prior to the Effective Time.
(c) Prior to the Effective Time, FEI shall take all action that may be
necessary (under the plans pursuant to which FEI 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 FEI
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Options have no rights with respect thereto other than those specifically
provided in this Section 5.05.
5.06 ESPP.
(a) At the Effective Time, the FEI Employee Stock Purchase Plan (the
"FEI ESPP") and each outstanding purchase right with respect to all open
offering periods under the FEI ESPP (each an "ASSUMED PURCHASE RIGHT") shall be
assumed by Veeco. Each Assumed Purchase Right shall continue to have, and be
subject to, the terms and conditions set forth in the FEI ESPP and the documents
governing the Assumed Purchase Right, except that the purchase price of Veeco
Shares under each Assumed Purchase Right shall be the lower of (i) the quotient
determined by dividing eighty-five percent (85%) of the fair market value of a
share of FEI Common Stock on the offering date of each assumed offering period
by the Exchange Ratio (with the purchase price rounded up to the nearest whole
cent) or (ii) eighty-five percent (85%) of the fair market value of a Veeco
Share on the applicable purchase date of each assumed offering period occurring
after the Effective Time. Subject to Section 5.06(b), the Assumed Purchase
Rights shall be exercised at such times following the Effective Time as set
forth in the FEI ESPP, and each participant shall, accordingly, be issued Veeco
Shares at such times.
(b) Prior to the Effective Time, FEI shall take any and all action
that may be necessary under the FEI ESPP (or otherwise) to ensure that (i) all
offering periods under the FEI ESPP that are open at the Effective Time and are
assumed by Veeco pursuant to Section 5.06(a), shall terminate, and the
applicable purchase date for all Assumed Purchase Rights shall occur, on or
before December 31, 2002, (ii) the FEI ESPP shall terminate on or before
December 31, 2002, and (iii) the offering period scheduled to begin on or about
September 1, 2002 shall be the last offering period to commence under the FEI
ESPP (the "September Offering"), and the September Offering shall terminate, and
the applicable purchase date shall occur, on December 31, 2002. Veeco agrees to
implement or continue, as applicable, the September Offering and all Assumed
Purchase Rights until the earlier of (i) December 31, 2002, or (ii) the date
that the applicable offering period would have otherwise terminated, without
additional corporate action, pursuant to the FEI ESPP.
(c) Veeco agrees that the employees of FEI who become employees of
Veeco or any Subsidiary of Veeco may participate in the employee stock purchase
plan sponsored by Veeco (the "VEECO ESPP"), subject to the terms and conditions
of the Veeco ESPP.
5.07 EMPLOYEE MATTERS.
(a) Until the first anniversary of the Effective Time, Veeco shall, or
shall cause a Subsidiary of Veeco to, (i) provide the employees of FEI who
remain employed with Veeco or any Subsidiary of Veeco in the U.S. after the
Effective Time (the "U.S. CONTINUING EMPLOYEES") with terms and conditions of
employment that are substantially comparable in the aggregate to those provided
to similarly situated employees of Veeco (the "VEECO BENEFITS") or (ii) continue
to provide the U.S. Continuing Employees with terms and conditions of employment
that are substantially comparable in the aggregate to those provided by FEI
immediately prior to the Effective Time. Nothing contained herein shall be
construed to limit the ability of Veeco or a Subsidiary of Veeco, following the
Effective Time, to terminate the employment of any employee or to amend or
terminate any Veeco or FEI Benefit Plan in accordance with its terms.
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(b) Except to the extent necessary to avoid duplication of benefits,
and, to the extent permitted under applicable law (after adoption of any
amendments necessary to implement the following), Veeco shall provide the U.S.
Continuing Employees with full credit, for purposes of eligibility and vesting
under any employee benefit plans or arrangements maintained by Veeco or any
Subsidiary of Veeco in which such employees are eligible to participate, for
such employees' service with FEI to the same extent recognized by FEI
immediately prior to the Effective Time. Veeco shall cause any and all
pre-existing condition (or actively-at-work or similar) limitations, eligibility
waiting periods and evidence of insurability requirements under any welfare plan
to be waived with respect to the U.S. Continuing Employees and their eligible
dependents and shall provide them with credit for any co-payments, deductibles
and offsets (or similar payments) made prior to the Effective Time for purposes
of satisfying any applicable deductible, out-of-pocket, or similar requirement
under any employee benefit plans or arrangements maintained by Veeco or any
Subsidiary of Veeco in which such employees are eligible to participate on and
after the Effective Time.
(c) Nothing herein expressed or implied shall confer upon any of the
U.S. Continuing Employees or any other current or former employee or legal
representative thereof, any rights or remedies, including, without limitation,
any right to employment, or continued employment for any specified period, of
any nature or kind whatsoever under or by reason of this Agreement.
(d) Veeco shall provide employees of FEI who remain employed with
Veeco or any Subsidiary of Veeco outside the U.S. after the Effective Time (the
"FOREIGN CONTINUING EMPLOYEES") with terms and conditions of employment that are
substantially similar to those provided by FEI or any Subsidiary of FEI
immediately prior to the Effective Time as and to the extent required by
applicable Law.
(e) Until such time as that certain Employment Agreement, dated as of
the date hereof, between Veeco and Vahe Sarkissian is terminated, Veeco will
continue in effect the FEI Non-Qualified Deferred Compensation Plan on
substantially the same terms and conditions as existing on the date of this
Agreement (or will put in place a successor plan with substantially the same
terms and conditions, which may permit participation by other employees of Veeco
and its Subsidiaries); provided, however, that in no event shall the Company be
required to make any contributions to such plan.
5.08 INDEMNIFICATION OF OFFICERS AND DIRECTORS.
(a) From and after the Effective Time, Veeco will, and will cause the
Surviving Corporation to, fulfill and honor in all respects the obligations of
FEI pursuant to any indemnification agreements between FEI and its directors and
officers immediately prior to the Effective Time (collectively, the "INDEMNIFIED
PERSONS"), subject to applicable law. The Articles of Incorporation and Bylaws
of the Surviving Corporation will contain provisions with respect to exculpation
and indemnification that are at least as favorable to the Indemnified Persons as
those provisions contained in the Articles of Incorporation and Bylaws of FEI as
in effect on the date of this Merger Agreement, which provisions will not be
amended, repealed or otherwise modified for a period of six years from the
Effective Time in any manner that would adversely affect the rights thereunder
of an Indemnified Person, unless such modification is required by law.
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(b) From the Effective Time until the sixth anniversary of the
Effective Time, the Surviving Corporation shall maintain in effect (and Veeco
shall cause the Surviving Corporation to 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 FEI as of the date of this Merger Agreement in the form
disclosed by FEI 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 200% of the premium payable by FEI therefor as
of the date of this Merger Agreement, in the aggregate. In the event any future
annual premium for the Existing Policy (or any such substitute policies) exceeds
200% of the premium payable by FEI 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
200% of the premium payable by FEI therefor as of the date of this Merger
Agreement.
(b) This Section 5.08 is intended to be for the benefit of, and shall
be enforceable by the Indemnified Persons and their heirs and personal
representatives and shall be binding on Veeco, the Surviving Corporation and
their successors and assigns. In the event Veeco, the Surviving Corporation or
their respective successors or assigns (i) consolidates with or merges into any
other Person and shall not be the continuing or surviving Person in such
consolidation or merger or (ii) transfers all or substantially all of its
properties and assets to any Person, then, and in each case, proper provision
shall be made so that the successor and assign of Veeco or the Surviving
Corporation, as applicable, honor the obligations set forth in this Section
5.08.
5.09 REGISTRATION STATEMENT ON FORM S-3. Veeco shall file with the SEC, no
later than the date on which the Merger becomes effective, a registration
statement on Form S-3, relating to the resale of the FEI Convertible Debt and
the common stock issuable upon conversion of the FEI Convertible Debt.
5.10 TAX MATTERS.
(a) (i) Between the date hereof and the Closing Date, FEI 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 FEI Entities, 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 FEI Entities or any of
the FEI Entities' assets and businesses. Each of such Tax Returns will be true,
correct and complete in all material respects when filed. Neither FEI nor any
FEI Entity shall (i) make any election or (ii) file any amended Tax Return
reflecting any position, in the case of each of (i) and (ii) that could result
in a material adverse Tax consequence to Veeco, Acquisition, FEI or any FEI
Entity or Veeco Entity for any period beginning on or after the Effective Time.
FEI shall timely file all required transfer Tax Returns and/or notices of the
transfer of the FEI Entities' business, if any, with the appropriate
Governmental Authority. Veeco shall cooperate with FEI in connection with the
matters contemplated by this Section 5.10(a)(i), which cooperation shall
include, without limitation, providing information and executing and delivering
documents, in connection with FEI's or any of the FEI Entities' obligations
under this Section 5.10(a)(i).
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(ii) Between the date hereof and the Closing Date, Veeco 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 Veeco Entities, 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 Veeco
Entities or any of the Veeco Entities' assets and businesses. Each of such Tax
Returns will be true, correct and complete in all material respects when filed.
Neither Veeco nor any Veeco Entity shall (i) make any election or (ii) file any
amended Tax Return reflecting any position, in the case of each of (i) and (ii)
that could result in a material adverse Tax consequence to Veeco, Acquisition,
FEI or any FEI Entity or any Veeco Entity for any period beginning on or after
the Effective Time. Veeco shall timely file all required transfer Tax Returns
and/or notices of the transfer of the Veeco Entities' business, if any, with the
appropriate Governmental Authority. FEI shall cooperate with Veeco in connection
with the matters contemplated by this Section 5.10(a)(ii), which cooperation
shall include, without limitation, providing information and executing and
delivering documents, in connection with Veeco's or any of the Veeco Entities'
obligations under this Section 5.10(a)(ii).
(b) At or prior to the filing of the Form S-4 Registration Statement,
FEI and Veeco shall execute and deliver to Kaye Scholer LLP, counsel to Veeco,
and to Wilson Sonsini Goodrich & Rosati, Professional Corporation, counsel to
FEI, tax representation letters in form and substance satisfactory to such
counsel. Further, Veeco, Acquisition and FEI shall execute and deliver to Kaye
Scholer LLP and to Wilson Sonsini Goodrich & Rosati, Professional Corporation,
tax representation letters substantially identical to the tax representation
letters delivered pursuant to the immediately preceding sentence dated as of the
Closing Date, and modified to reflect changes in law, if any, and such other
matters as Kaye Scholer LLP and Wilson Sonsini Goodrich & Rosati, Professional
Corporation, may reasonably request. Following delivery of the tax
representation letters contemplated pursuant to the first sentence of this
Section 5.10(b), each of Veeco and FEI shall use its reasonable best efforts to
cause Kaye Scholer LLP to deliver to Veeco, and Wilson Sonsini Goodrich &
Rosati, Professional Corporation, to deliver to FEI, a tax opinion with respect
to such matters as are appropriate for description, and inclusion as exhibits,
in the Form 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 FEI will take any action prior or
subsequent to the Effective Time that would reasonably be expected to cause the
Merger to fail to qualify as a reorganization as described in Section 368(a) of
the Code.
5.11 LETTERS OF THE PARTIES' ACCOUNTANTS.
(a) FEI shall use all reasonable efforts to cause to be delivered to
Veeco a letter of Deloitte & Touche LLP, independent public accountant for FEI,
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
FEI a letter of Ernst & Young LLP, independent public accountant for Veeco,
dated no more than two business
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days before the date on which the Form S-4 Registration Statement becomes
effective (and reasonably satisfactory in form and substance to FEI), 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 cause the Veeco Shares being issued, and those
being reserved for issuance, in the Merger to be approved for listing (subject
to notice of issuance) on NASDAQ.
5.12 BOARD OF DIRECTORS; COMMITTEES; OFFICERS; HEADQUARTERS.
(a) Veeco shall take all actions necessary such that, effective as of
immediately following the Effective Time, Veeco's Board of Directors shall
consist of thirteen (13) members, seven (7) of whom shall be nominated by Veeco
from the current members of its board of directors, five (5) of whom shall be
nominated by FEI from the current members of its board of directors, and one (1)
of whom shall be nominated by Philips in accordance with the terms of the Veeco
Investor Agreement. In addition, Veeco shall take all actions necessary such
that, effective as of immediately following the Effective Time, two (2) of the
Veeco nominees and two (2) of the FEI nominees shall serve as Class III
directors for terms expiring at Veeco's 2003 Annual Meeting of the Stockholders,
two (2) of the Veeco nominees and two (2) of the FEI nominees shall serve as
Class I directors for terms expiring at Veeco's 2004 Annual Meeting of the
Stockholders and three (3) of the Veeco nominees, one (1) of the FEI nominees
and the Philips nominee shall serve as Class II directors for terms expiring at
Veeco's 2005 Annual Meeting of the Stockholders.
(b) Veeco shall cause, as of the Effective Time, the individuals set
forth on SCHEDULE 5.13(B) to be appointed to the position(s) set forth opposite
their respective names.
(c) Prior to the Effective Time, Veeco shall use commercially
reasonable efforts to enter into employment agreements, to be effective as of
the Effective Time, with such senior officers of Veeco and FEI as are mutually
agreed by Veeco and FEI, which employment agreements shall have terms acceptable
to the board of directors of each of Veeco and FEI.
(d) Following the Effective Time, the headquarters for Veeco FEI Inc.
shall be located at the current headquarters of Veeco.
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 either
the FEI Disclosure Schedule or the Veeco Disclosure Schedule or any 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
5.14 shall not limit or otherwise affect the remedies available hereunder to the
party receiving such notice.
5.15 PAYMENT OF INDEBTEDNESS BY AFFILIATES. FEI shall use commercially
reasonable efforts to cause all indebtedness owed to any FEI Entity by any FEI
Affiliate to be paid in full prior to
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Closing, other than as provided in Sections 3.02(b) and 3.08 of the FEI
Disclosure Schedule, and advances of, or reimbursements for, expenses incurred
or anticipated to be incurred by officers, directors and employees of the FEI
Entities in the ordinary course of business and in compliance with the relevant
FEI Entity's policy, if any, relating thereto.
5.16 NO SOLICITATION -- FEI.
(a) During the period commencing with the execution of this Merger
Agreement and continuing until the earlier to occur of the termination of this
Merger Agreement pursuant to its terms and the Closing Date, FEI shall not
directly or indirectly, and shall use reasonable best efforts to cause the other
FEI Entities and their respective Representatives, employees and agents not
directly or indirectly, to (i) solicit, initiate, encourage, induce or
facilitate the making, submission or announcement of any FEI Acquisition
Proposal, (ii) furnish any information regarding any of the FEI Entities to any
Person in connection with or in response to a FEI Acquisition Proposal or an
inquiry or indication of interest that could reasonably be expected to lead to a
FEI Acquisition Proposal, (iii) engage in discussions or negotiations with any
Person with respect to any FEI Acquisition Proposal, (iv) approve, endorse or
recommend any FEI Acquisition Proposal or (v) enter into any letter of intent or
similar document or any Contract contemplating or otherwise relating to any FEI
Acquisition Transaction; PROVIDED, HOWEVER, that prior to the approval of the
Merger by the Required FEI Stockholder Vote, this Section 5.16(a) shall not
prohibit FEI 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 FEI Acquisition Proposal that is submitted to FEI
(and not withdrawn) if the Board of Directors of FEI reasonably determines in
good faith after due consideration that such FEI Acquisition Proposal would
reasonably be likely to result in a Superior FEI Proposal and (1) neither FEI
nor any Representative of any of the FEI Entities shall have violated any of the
restrictions set forth in this Section 5.16, (2) the Board of Directors of FEI
concludes in good faith that failure to take such action would be reasonably
likely to result in a breach of the fiduciary obligations of the Board of
Directors of FEI to FEI's stockholders under applicable Law, after consultation
with its outside legal counsel, and (3) prior to any such discussion or other
action FEI 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 FEI.
(b) FEI shall promptly advise Veeco of any FEI Acquisition Proposal
(including the identity of the Person making or submitting such FEI Acquisition
Proposal and the terms thereof) that is made or submitted by any Person after
the date of this Merger Agreement. FEI shall keep Veeco reasonably informed with
respect to the status of any such FEI Acquisition Proposal.
(c) On the date hereof, FEI shall immediately cease and cause to be
terminated any existing discussions with any Person that relate to any FEI
Acquisition Proposal or FEI Acquisition Transaction.
(d) FEI 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 FEI Entities is a party,
and will use its best efforts to enforce or cause to be enforced each such
agreement at the request of Veeco. FEI also will promptly request each Person
that has executed, within 12 months prior to the date of this Merger Agreement,
a confidentiality
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agreement in connection with its consideration of a possible FEI Acquisition
Transaction, to return all confidential information heretofore furnished to such
Person by or on behalf of any of the FEI Entities.
5.17 NO SOLICITATION -- VEECO.
(a) During the period commencing with the execution of this Merger
Agreement and continuing until the earlier to occur of the termination of this
Merger Agreement pursuant to its terms and the Closing Date, Veeco shall not
directly or indirectly, and shall use reasonable best efforts to cause the other
Veeco Entities and their respective Representatives, employees and agents not
directly or indirectly, to (i) solicit, initiate, encourage, induce or
facilitate the making, submission or announcement of any Veeco Acquisition
Proposal, (ii) furnish any information regarding any of the Veeco Entities to
any Person in connection with or in response to a Veeco Acquisition Proposal or
an inquiry or indication of interest that could reasonably be expected to 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 approval of the issuance of the Veeco Shares in the Merger 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 Representative of any of the Veeco Entities shall have violated
any of the restrictions set forth in this Section 5.17, (2) the Board of
Directors of Veeco concludes in good faith that failure to take such action
would be reasonably likely to result in a breach of the fiduciary obligations of
the Board of Directors of Veeco to Veeco's stockholders under applicable Law,
after consultation with its outside legal counsel, and (3) 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.
(b) Veeco shall promptly advise FEI of any Veeco Acquisition Proposal
(including the identity of the Person making or submitting such Veeco
Acquisition Proposal and the terms thereof) that is made or submitted by any
Person after the date of this Merger Agreement. Veeco shall keep FEI reasonably
informed with respect to the status of any such Veeco Acquisition Proposal.
(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 any of the Veeco Entities is a party,
and will use its best efforts to enforce or cause to be enforced each such
agreement at the request of FEI. Veeco also will promptly request each Person
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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, to return all confidential information heretofore
furnished to such Person by or on behalf of any of the Veeco Entities.
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. FEI 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 FEI shall
each use reasonable best 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 Merger 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, and (ii) shall use
reasonable best efforts to lift any restraint, injunction or other legal bar to
the Merger. Each of Veeco and FEI shall promptly deliver to the other a copy of
each such filing made, each such notice given and each such Consent obtained by
it following the date hereof.
5.20 DISCLOSURE. Veeco and FEI 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 FEI shall,
and neither Veeco nor FEI 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 by its outside legal
counsel that such disclosure is required by applicable Law.
5.21 REGISTRATION STATEMENT; JOINT PROXY STATEMENT. As promptly as
practicable after the date of this Merger Agreement, Veeco and FEI 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 FEI shall use reasonable best 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. Each of Veeco and FEI shall, as promptly as practicable after
receipt thereof, provide the other party with copies of any written comments and
advise each other of any oral comments with respect to the Joint Proxy Statement
or Form S-4 Registration Statement. Veeco will use reasonable best efforts to
cause the Joint Proxy Statement to be mailed to Veeco's stockholders, and FEI
will use reasonable best efforts to cause the Joint Proxy Statement to be mailed
to FEI's stockholders, as promptly as practicable after the Form S-4
Registration Statement is declared effective under the Securities Act. FEI and
Veeco shall promptly furnish to one another all information concerning the FEI
Entities and FEI's stockholders and Veeco and Veeco's stockholders that may be
required or
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reasonably requested in connection with any action contemplated by this Section
5.21. If any event relating to any of the FEI Entities occurs, or if FEI 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 FEI
shall promptly inform Veeco thereof and shall cooperate with Veeco in filing
such amendment or supplement with the SEC and provide Veeco with a reasonable
opportunity to comment on any such amendment or supplement prior to filing with
the SEC and, if appropriate, shall cooperate with Veeco in mailing such
amendment or supplement to the stockholders of FEI. If any event relating to any
of the Veeco Entities 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 FEI
thereof and shall cooperate with FEI in filing such amendment or supplement with
the SEC and provide FEI with a reasonable opportunity to comment on any such
amendment or supplement prior to filing with the SEC and, if appropriate,
cooperate with FEI in mailing such amendment or supplement to the stockholders
of Veeco. Notwithstanding any other provision herein to the contrary, no
amendment or supplement (including by incorporation by reference) to the Joint
Proxy Statement or the Form S-4 Registration Statement shall be made without the
approval of both Veeco and FEI, which approval shall not be unreasonably
withheld or delayed; PROVIDED, that, with respect to documents filed by a party
hereto that are incorporated by reference in the Form S-4 Registration Statement
or Joint Proxy Statement, this right of approval shall apply only with respect
to information relating to the other party or its business, financial condition,
or results of operations; and PROVIDED, FURTHER, that Veeco, in connection with
a change in the Veeco Board Recommendation (to the extent permitted by Section
5.23(c) hereof), and FEI, in connection with a change in the FEI Board
Recommendation (to the extent permitted by Section 5.22(c) hereof), may amend or
supplement the Joint Proxy Statement or Form S-4 Registration Statement
(including by incorporation by reference) pursuant to a Qualifying Amendment to
effect such a change, and in such event, this right of approval shall apply only
with respect to information relating to the other party or its business,
financial condition or results of operations, and shall be subject to the right
of each party to have its Board of Directors' deliberations and conclusions be
accurately described. Each party hereto will advise the other party, promptly
after it receives notice thereof, of the time when the Form S-4 Registration
Statement has become effective, the issuance of any stop order, the suspension
of the qualification of the Veeco Shares issuable in connection with the Merger
for offering or sale in any jurisdiction, or any request by the SEC for
amendment of the Joint Proxy Statement or Form S-4 Registration Statement. If,
at any time prior to the Effective Time, any information relating to Veeco or
FEI, or any of their respective Affiliates, officers or directors, is discovered
by Veeco or FEI and such information should be set forth in an amendment or
supplement to (i) the Form S-4 Registration Statement so that such document
would not contain any untrue statement of a material fact or omit to state any
material fact required to be stated therein or necessary in order to make the
statements therein not misleading or (ii) the Joint Proxy Statement so that such
document would not contain any untrue statement of a material fact or omit to
state any material fact required to be stated therein or necessary in order to
make the statements therein, in light of the circumstances under which they are
made, not false or misleading, or omit to state any material fact necessary to
correct any statement in any earlier communication with respect to the
solicitation of proxies for the FEI Stockholders Meeting or the Veeco
Stockholders Meeting, which has become false or misleading, the party hereto
discovering such information shall promptly notify the other parties hereto and,
to the extent required by Law, an appropriate amendment or supplement describing
such information shall be promptly filed with the SEC and disseminated to the
stockholders of Veeco and FEI.
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5.22 FEI Stockholders' Meeting.
(a) FEI shall take all action necessary under all applicable Laws to
call, give notice of and hold a meeting of the holders of FEI Common Stock to
vote on a proposal to approve the Merger (the "FEI STOCKHOLDERS' MEETING"). The
FEI Stockholders' Meeting shall be held as promptly as practicable after the
Form S-4 Registration Statement is declared effective under the Securities Act
on a date or dates determined in accordance with the mutual agreement of FEI and
Veeco, but in no event later than 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 Form 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. FEI shall ensure that all proxies solicited in
connection with the FEI Stockholders' Meeting are solicited in compliance with
all applicable Laws.
(b) Subject to Section 5.22(c): (i) the Joint Proxy Statement shall
include a statement to the effect that the Board of Directors of FEI recommends
that FEI's stockholders vote to approve the Merger at the FEI Stockholders'
Meeting (such recommendation of FEI's Board of Directors that FEI's stockholders
vote to approve the Merger being referred to as the "FEI BOARD RECOMMENDATION");
and (ii) the FEI Board Recommendation shall not be withdrawn or modified in a
manner adverse to Veeco, and no resolution by the Board of Directors of FEI or
any committee thereof to withdraw or modify the FEI Board Recommendation in a
manner adverse to Veeco shall be adopted.
(c) Notwithstanding anything to the contrary contained in Section
5.22(b), at any time prior to the approval of the Merger by the Required FEI
Stockholder Vote, the FEI Board Recommendation may be withdrawn or modified in a
manner adverse to Veeco if: (i) a FEI Acquisition Proposal is made and is not
withdrawn; (ii) FEI promptly provides Veeco prior written notice of any meeting
of FEI's Board of Directors at which such Board of Directors will consider and
determine whether such offer is a Superior FEI Proposal; (iii) FEI's Board of
Directors determines in good faith that such offer constitutes a Superior FEI
Proposal (after consultation with an independent financial advisor of nationally
recognized reputation); (iv) FEI's Board of Directors determines in good faith,
after consultation with FEI's outside legal counsel, that, in light of such
Superior FEI Proposal, the failure to withdraw or modify the FEI Board
Recommendation would be reasonably likely to result in a breach of the fiduciary
obligations of FEI's Board of Directors to FEI's stockholders under applicable
Law; and (v) neither FEI nor any of its Representatives shall have materially
violated any of the restrictions set forth in Section 5.16.
(d) FEI's obligation to call, give notice of and hold the FEI
Stockholders' Meeting in accordance with Section 5.22(a) hereof shall not be
limited or otherwise affected by the commencement, disclosure, announcement or
submission of any Superior FEI Proposal or other FEI Acquisition Proposal, or by
any withdrawal or modification of the FEI Board Recommendation.
5.23 VEECO STOCKHOLDERS' MEETING.
(a) Veeco shall take all action necessary under all applicable Laws
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 and the Veeco Certificate of
Incorporation Amendment (the "VEECO STOCKHOLDERS'
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MEETING"). The Veeco Stockholders' Meeting shall be held as promptly as
practicable after the Form S-4 Registration Statement is declared effective
under the Securities Act on a date determined in accordance with the mutual
agreement of FEI and Veeco (but on a date no more than two business days after
the FEI Stockholders' Meeting). 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 5.23(c): (i) the Joint Proxy Statement shall
include a statement to the effect that the Board of Directors of Veeco
recommends that Veeco's stockholders vote to approve the issuance of Veeco
Shares in the Merger and the Veeco Certificate of Incorporation Amendment (such
recommendation of Veeco's Board of Directors that Veeco's stockholders vote to
approve the issuance of Veeco Shares in the Merger and the Veeco Certificate of
Incorporation Amendment being referred to as the "VEECO BOARD RECOMMENDATION");
and (ii) the Veeco Board Recommendation shall not be withdrawn or modified in a
manner adverse to FEI, 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 FEI shall be adopted.
(c) Notwithstanding anything to the contrary contained in Section
5.23(b), at any time prior to the approval of the issuance of the Veeco Shares
in the Merger and the Veeco Certificate of Incorporation Amendment by the
Required Veeco Stockholder Vote, the Veeco Board Recommendation may be withdrawn
or modified in a manner adverse to FEI if: (i) a Veeco Acquisition Proposal is
made and is not withdrawn; (ii) Veeco promptly provides FEI 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 (after consultation with an independent
financial advisor of nationally recognized reputation); (iv) Veeco's Board of
Directors determines in good faith, after consultation with Veeco's outside
legal counsel, that, in light of such Superior Veeco Proposal, the failure to
withdraw or modify the Veeco Board Recommendation would be reasonably likely to
result in a breach of the fiduciary obligations of Veeco's Board of Directors to
Veeco's stockholders under applicable Law; and (v) neither Veeco nor any of its
Representatives shall have materially violated any of the restrictions set forth
in Section 5.17.
(d) Veeco's obligation to call, give notice of and hold the Veeco
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 Veeco Proposal or other Veeco Acquisition Proposal,
or by any withdrawal or modification of the Veeco Board Recommendation.
5.24 SECTION 16 MATTERS. Prior to the Effective Time, the Board of
Directors of each of FEI and Veeco shall adopt a resolution consistent with the
interpretative guidance of the SEC, if any, to the effect that (i) the
assumption of FEI Options held by FEI Insiders (as defined below) pursuant to
this Agreement, (ii) the acquisition or exercise of other rights to receive or
purchase equity securities of FEI or Veeco pursuant to agreements entered into
in connection with the execution and delivery of this Agreement, and (iii) the
receipt by FEI Insiders of Veeco Shares in exchange for FEI Common Stock
pursuant to the Merger, shall be exempt transactions for purposes of Section 16
of the Exchange Act by any officer or director (or any entity which may be
deemed to be a "director by
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deputization" as a result of its relationship with a director of FEI) of FEI who
may become a covered person for purposes of Section 16 of the Exchange Act (a
"FEI INSIDER").
5.25 ACQUISITION COMPLIANCE. Veeco shall cause Acquisition to comply with
all of Acquisition's obligations under or relating to this Merger Agreement.
Acquisition shall not engage in any business that is not in connection with the
Merger pursuant to this Merger Agreement.
5.26 CONVEYANCE TAXES. Veeco, Acquisition and FEI shall cooperate in the
preparation, execution and filing of all returns, questionnaires, applications
or other documents regarding any real property transfer or gains, sales, use,
transfer, value added, stock transfer or stamp taxes, any transfer, recording,
registration or other fees or any similar taxes, which become payable in
connection with the transactions contemplated by this Merger Agreement that are
required or permitted to be filed on or before the Effective Time. All such
taxes will be paid by the party bearing the legal responsibility for such
payment.
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. The Merger shall have been duly approved by the
Required FEI Stockholder Vote and the issuance of Veeco Shares in the Merger and
the Veeco Certificate of Incorporation Amendment shall have been duly approved
by the Required Veeco Stockholder Vote.
6.03 LITIGATION. No suit, action or other Legal Proceeding by any
Governmental Authority shall be pending in which it is sought to restrain or
prohibit the consummation of the transactions contemplated hereby, and no
injunction or final judgment shall have been entered on the Closing Date before
any court or Governmental Authority restraining or prohibiting the consummation
of the transactions contemplated hereby.
6.04 NO ORDER. No Governmental Authority shall have enacted, issued,
promulgated, enforced or entered any statute, rule, regulation or executive
order (whether temporary, preliminary or permanent), which is in effect and
which has the effect of making the Merger illegal or otherwise prohibiting
consummation of the Merger.
6.05 HSR ACT. (a) The waiting period applicable to the consummation of the
Merger under the HSR Act 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
expired or been terminated or for such Consent to have been obtained would not
have a Material Adverse Effect on Veeco (following the Merger).
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6.06 LISTING. The Veeco Shares to be issued in the Merger and such other
shares required to be reserved for issuance in connection with the Merger shall
be 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 all of the
following conditions:
7.01 REPRESENTATIONS AND WARRANTIES. The representations and warranties of
FEI contained in this Merger Agreement shall (i) be true and correct as of the
date of this Merger Agreement, except where the failure to be so true and
correct would not, in the aggregate, reasonably be expected to have a Material
Adverse Effect on FEI and (ii) be true and correct as of the Closing Date with
the same force and effect as if made on and as of the Closing Date (except to
the extent expressly made as of an earlier date), except where the failure to be
so true and correct would not, in the aggregate, reasonably be expected to have
a Material Adverse Effect on FEI; PROVIDED, HOWEVER, that, for purposes of
determining the accuracy of such representations and warranties as of the date
of this Merger Agreement or as of the Closing Date, (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 FEI Disclosure
Schedule hereto made or purported to have been made after the date of this
Merger Agreement shall be disregarded.
7.02 PERFORMANCE OF COVENANTS. FEI 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 MATERIAL ADVERSE EFFECT. There shall not have been any Material
Adverse Effect with respect to FEI from the date hereof to the Closing Date.
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) a legal opinion of Kaye Scholer LLP, counsel to Veeco, dated as
of the Closing Date and addressed to Veeco, to the effect that the Merger will
qualify as a reorganization within the meaning of Section 368(a) of the Code (it
being understood that in rendering such opinion, Kaye Scholer LLP may rely upon
tax representation letters, dated as of the Closing Date, and 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 Kaye
Scholer LLP and Wilson Sonsini Goodrich & Rosati, Professional Corporation, may
reasonably request); and
(b) a certificate, dated the Closing Date, executed on behalf of FEI
by its Chief Executive Officer, confirming that the conditions set forth in
Sections 7.01 and 7.02 hereof have been duly satisfied.
VIII. CONDITIONS PRECEDENT TO FEI'S OBLIGATIONS.
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FEI's obligation to enter into and complete the Closing is conditioned upon
the satisfaction or waiver in writing by FEI, 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 (i) be true and
correct as of the date of this Merger Agreement, except where the failure to be
so true and correct would not, in the aggregate, reasonably be expected to have
a Material Adverse Effect on Veeco and (ii) be true and correct as of the
Closing Date with the same force and effect as if made on and as of the Closing
Date (except to the extent expressly made as of an earlier date), except where
the failure to be so true and correct would not, in the aggregate, reasonably be
expected to have a Material Adverse Effect on Veeco; PROVIDED, HOWEVER, that,
for purposes of determining the accuracy of such representations and warranties
as of the date of this Merger Agreement or as of the Closing Date, (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 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 MATERIAL ADVERSE EFFECT. There shall not have been any Material
Adverse Effect with respect to Veeco from the date hereof to the Closing Date.
8.04 DOCUMENTS. FEI shall have received the following documents:
(a) a legal opinion of Wilson Sonsini Goodrich & Rosati, Professional
Corporation, counsel to FEI, dated as of the Closing Date, to the effect that
the Merger will qualify as a reorganization within the meaning of Section 368(a)
of the Code (it being understood that in rendering such opinion, Wilson Sonsini
Goodrich & Rosati may rely upon tax representation letters dated as of the
Closing Date, and 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 Kaye Scholer LLP and Wilson Sonsini Goodrich & Rosati,
Professional Corporation, may reasonably request); and
(b) a certificate, dated the Closing Date, executed on behalf of
Veeco by its Chief Executive Officer, confirming that the conditions set forth
in Sections 8.01 and 8.02 hereof have been duly satisfied.
IX. TERMINATION.
9.01 TERMINATION. This Merger Agreement may be terminated prior to the
Effective Time (whether before or after approval of the Merger by FEI'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 FEI;
(b) by either Veeco or FEI if the Merger shall not have been
consummated by December 31, 2002 (the "TERMINATION DATE") or, if later, the day
following the last day of any cure
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period under Section 9.01(h) or 9.01(i) (but in no event beyond January 30,
2002) (unless the failure to consummate the Merger is significantly 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 FEI if 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;
(d) by either Veeco or FEI if (i) the FEI Stockholders' Meeting
(including any adjournments and postponements thereof) shall have been held and
completed and FEI's stockholders shall have taken a final vote on a proposal to
approve the Merger, and (ii) the Merger shall not have been approved at such
meeting by the Required FEI 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) FEI shall not be permitted to terminate this Merger Agreement
pursuant to this Section 9.01(d) unless FEI shall have paid to Veeco any fee
required to be paid to Veeco pursuant to Section 9.03(b);
(e) by either Veeco or FEI 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 the Veeco Certificate of Incorporation
Amendment, and (ii) the issuance of Veeco Shares in the Merger or the Veeco
Certificate of Incorporation Amendment 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 Merger 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 Veeco shall have
paid to FEI any fee required to be paid to FEI pursuant to Section 9.03(b);
(f) by Veeco (at any time prior to the approval of the Merger by the
Required FEI Stockholder Vote) if a FEI Triggering Event shall have occurred;
(g) by FEI (at any time prior to the approval of the issuance of
Veeco Shares in the Merger and the Veeco Certificate of Incorporation Amendment)
by the Required Veeco Stockholder Vote) if a Veeco Triggering Event shall have
occurred;
(h) by Veeco if (i) any of FEI'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, except to the
extent expressly made as of an earlier date) and such breach has not
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been cured within 30 days after notice thereof, such that the condition set
forth in Section 7.01 would not be satisfied, or (ii) any of FEI's covenants or
agreements contained in this Merger Agreement shall have been breached (and any
such breach shall not have been cured within 30 days after notice thereof) such
that the condition set forth in Section 7.02 would not be satisfied; or
(i) by FEI 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, except to the
extent expressly made as of an earlier date) and such breach has not been cured
within 30 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 or
agreements contained in this Merger Agreement shall have been breached (and any
such breach shall not have been cured within 30 days after notice thereof) such
that the condition set forth in Section 8.02 would not be satisfied.
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) Sections 9.02 and 9.03 and
Article X 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
Veeco and FEI 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.
(b) Termination Fees.
(i) In the event that this Merger Agreement is terminated by
Veeco pursuant to Section 9.01(h) or FEI pursuant to Section 9.01(i), then the
non-terminating Party shall make a nonrefundable cash payment to the other
Party, within two business days after such termination, in an amount equal to
the aggregate amount of all fees and reasonable, documented, out-of-pocket
expenses (the "TRANSACTION 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 that Party in
connection with the preparation and negotiation of this Merger Agreement and
otherwise in connection with the Merger (such cash payment shall not exceed, in
the aggregate, five million dollars ($5,000,000)).
(ii) In the event that this Merger Agreement is terminated by FEI
or Veeco pursuant to Section 9.01(d) and at or prior to the time of such
termination a FEI Acquisition Proposal
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shall have been publicly disclosed, announced, commenced, submitted or made and
not subsequently unconditionally withdrawn, FEI shall pay to Veeco within two
business days after demand by Veeco an amount equal to Veeco's Transaction
Expenses, by wire transfer of immediately available funds to an account
designated in writing by Veeco.
(iii) In the event that this Merger Agreement is terminated by
FEI or Veeco pursuant to Section 9.01(e) and at or prior to the time of such
termination a Veeco Acquisition Proposal shall have been publicly disclosed,
announced, commenced, submitted or made and not subsequently unconditionally
withdrawn, Veeco shall pay to FEI within two business days after demand by FEI
an amount equal to FEI's Transaction Expenses, by wire transfer of immediately
available funds to an account designated in writing by FEI.
(iv) In the event that this Merger Agreement is terminated by FEI
pursuant to Section 9.01(g) or by Veeco pursuant to Section 9.01(f), the
non-terminating Party shall pay to the terminating party within two business
days after such termination a fee equal to thirty million dollars ($30,000,000)
by wire transfer of immediately available funds to an account designated in
writing by the recipient (the "TERMINATION FEE"); PROVIDED, HOWEVER, that if
this Merger Agreement is terminated (A) by FEI pursuant to Section 9.01(g)
because an event specified in clause (x) of the definition of Veeco Triggering
Event has occurred, the Termination Fee shall be payable only if within 12
months following the termination of this Merger Agreement, either a Veeco
Acquisition Transaction is consummated, or Veeco enters into a letter of intent
or Contract providing for a Veeco Acquisition Transaction and such Veeco
Acquisition Transaction is consummated within 24 months following the
termination of this Merger Agreement or (B) by Veeco pursuant to Section 9.01(f)
because an event specified in clause (ix) of the definition of FEI Triggering
Event has occurred, the Termination Fee shall be payable only if within 12
months following the termination of this Merger Agreement, either a FEI
Acquisition Transaction is consummated, or FEI enters into a letter of intent or
Contract providing for a FEI Acquisition Transaction and such FEI Acquisition
Transaction is consummated within 24 months following the termination of this
Merger Agreement. For purposes of this Section 9.03(b)(iv), the terms "FEI
Acquisition Transaction" and "Veeco Acquisition Transaction" shall have the
meanings ascribed to such terms in Article I, except that references to "15%"
therein shall be deemed to read "40%."
(v) In the event that this Merger Agreement is terminated by FEI
or Veeco pursuant to Section 9.01(d) and (A) at or prior to the time of such
termination a FEI Acquisition Proposal shall have been publicly disclosed,
announced, commenced, submitted or made and not subsequently unconditionally
withdrawn, and (B) within 12 months following the termination of this Merger
Agreement, either a FEI Acquisition Transaction is consummated, or FEI enters
into a letter of intent or Contract providing for a FEI Acquisition Transaction
and such FEI Acquisition Transaction is consummated within 24 months following
the termination of this Merger Agreement, FEI shall pay to Veeco within two
business days after demand by Veeco a fee equal to the Termination Fee, by wire
transfer of immediately available funds to an account designated in writing by
Veeco. For purposes of this Section 9.03(b)(v), the term "FEI Acquisition
Transaction" shall have the meaning ascribed to such term in Article I, except
that references to "15%" therein shall be deemed to read "40%."
(vi) In the event that this Merger Agreement is terminated by FEI
or Veeco pursuant to Section 9.01(e) and (A) at or prior to the time of such
termination a Veeco Acquisition
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Proposal shall have been publicly disclosed, announced, commenced, submitted or
made and not subsequently unconditionally withdrawn, and (B) within 12 months
following the termination of this Merger Agreement, either a Veeco Acquisition
Transaction is consummated, or Veeco enters into a letter of intent or Contract
providing for a Veeco Acquisition Transaction and such Veeco Acquisition
Transaction is consummated within 24 months following the termination of this
Merger Agreement, Veeco shall pay to FEI within two business days after demand
by Veeco a fee equal to the Termination Fee, by wire transfer of immediately
available funds to an account designated in writing by FEI. For purposes of this
Section 9.03(b)(vi), the term "Veeco Acquisition Transaction" shall have the
meaning ascribed to such term in Article I, except that references to "15%"
therein shall be deemed to read "40%."
(vii) Notwithstanding anything to the contrary in this Section
9.03, in no event shall any party hereto be entitled under this Section 9.03(b)
to receive (i) the Termination Fee or the Transaction Expenses more than once or
(ii) the Transaction Expenses if such party has received the Termination Fee. In
addition, if a party has received the Transaction Expenses and subsequently
becomes entitled to receive the Termination Fee, such party shall receive the
Termination Fee less any Transaction Expenses previously received.
(viii) The Parties acknowledge that the agreements contained in
this Section 9.03 are an integral part of the transaction contemplated by this
Merger Agreement, and that, without these agreements, neither Party would have
entered into this Merger Agreement. Accordingly, if either Party fails to pay in
a timely manner the amounts due pursuant to this Section 9.03 and, in order to
obtain such payment, either Party makes a claim that results in a judgment
against either Party for the amounts set forth in this Section 9.03, such Party
shall pay to the other its reasonable costs and expenses (including reasonable
attorneys' fees and expenses) in connection with such suit, together with
interest on the amounts set forth in this Section 9.03 at the prime rate of JP
Morgan Chase in effect on the date such payment was required to be made. Payment
of the fees described in this Section 9.03 shall not be in lieu of damages
incurred in the event of breach of this Agreement.
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 FEI and Veeco at any time
(whether before or after approval of the Merger by the stockholders of FEI 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 approval of
the Merger by FEI's stockholders, no amendment shall be made which by Law
requires further approval of the stockholders of FEI 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.
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(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. 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.
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 FEI 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 28, 2002 between FEI
and Veeco shall not be superseded and shall remain in full force and effect.
This Merger Agreement may be executed in 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 DELAWARE 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 FEI Disclosure Schedule shall be arranged
in separate parts corresponding to the numbered and lettered Sections contained
in Article III. Any matter or item disclosed pursuant to any Section of the FEI
Disclosure Schedule shall be deemed to be disclosed only for purposes of
disclosure under that Section; provided, that any matter or item disclosed in
one Section of the FEI Disclosure Schedule will be deemed disclosed with respect
to another Section of the FEI Disclosure Schedule if such disclosure is made in
such a way as to make its relevance with respect to such other Section
reasonably apparent. The Veeco Disclosure Schedule shall be arranged in separate
parts corresponding to the numbered and lettered Sections contained in Article
IV. Any matter or item disclosed pursuant to any Section of the Veeco Disclosure
Schedule shall be deemed to be disclosed only for purposes of disclosure under
that Section; provided, that any matter or item disclosed in one Section of the
Veeco Disclosure Schedule
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will be deemed disclosed with respect to another Section of the Veeco Disclosure
Schedule if such disclosure is made in such a way as to make its relevance with
respect to such other Section reasonably apparent. The inclusion of any
information in the FEI Disclosure Schedule or Veeco Disclosure Schedule shall
not be deemed to be an admission or acknowledgment, in and of itself, that such
information is required by the terms hereof to be disclosed, is material, has or
would have a Material Adverse Effect, or is outside the ordinary course of
business.
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 FEI 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):
If to Veeco or Acquisition:
c/o Veeco Instruments Inc.
100 Sunnyside Boulevard
Woodbury, New York 11797
Attention: Gregory Robbins
Telephone: (516) 677-0200
Telecopy: (516) 677-0380
With a copy to:
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Attention: Rory A. Greiss, Esq.
Telephone: (212) 836-8261
Telecopy: (212) 836-7152
If to FEI:
FEI Company
7425 NW Evergreen Parkway
Hillsboro, Oregon 97124
Attention: Bradley J. Thies
Telephone: (503) 640-7500
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Telecopy: (503) 640-7570
With a copy to:
Wilson Sonsini Goodrich & Rosati
650 Page Mill Road
Palo Alto, California 94304
Attention: Larry Sonsini, Esq.
Telephone: (650) 493-9300
Telecopy: (650) 493-6811
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 import are references to this Merger
Agreement, together with the Exhibits and Schedules hereto, including the FEI
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
5.08 the Indemnified Persons, any right to insist upon or to enforce the
performance of any of the obligations contained herein. Without limiting the
foregoing, it is expressly understood and agreed that the provisions of Sections
5.05, 5.06, 5.07, 5.09 and 5.13 are statements of intent and no U.S. Continuing
Employee, Foreign Continuing Employee or other Person (other than the parties
hereto) shall have any rights or remedies, including rights of enforcement, with
respect thereto and no U.S. Continuing Employee, Foreign Continuing Employee or
other Person is or is intended to be a third-party beneficiary thereof.
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IN WITNESS WHEREOF, the parties have executed this Merger Agreement as of
the date first above written.
VEECO INSTRUMENTS INC.
By: /s/ Edward H. Braun
--------------------------------------------
Name: Edward H. Braun
Title: Chairman, Chief Executive
Officer and President
FEI COMPANY
By: /s/ Vahe A. Sarkissian
--------------------------------------------
Name: Vahe A. Sarkissian
Title: President and Chief Executive Officer
VENICE ACQUISITION CORP.
By: /s/ EDWARD H. BRAUN
--------------------------------------------
Name: Edward H. Braun
Title: President
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SCHEDULE A
FEI Stockholders Party to
FEI Stockholder Voting Agreements
<Page>
SCHEDULE B
Veeco Stockholders Party to
Veeco Stockholder Voting Agreements
<Page>
EXHIBIT A
FEI Stockholder Voting Agreements
(ATTACHED HERETO)
<Page>
VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 11, 2002 (this "AGREEMENT"), between
Philips Business Electronics International B.V., a company incorporated under
the laws of the Netherlands (the "STOCKHOLDER"), and Veeco Instruments Inc., a
Delaware corporation (the "COMPANY" and, collectively with the Stockholder, the
"PARTIES").
WHEREAS, as of the date of this Agreement, the Stockholder is the
Beneficial Owner (as herein defined) of 8,264,821 shares of Common Stock, no par
value (the "FLORENCE STOCK"), of FEI Company, an Oregon corporation
("FLORENCE"); and
WHEREAS, the Company, Venice Acquisition Corp., an Oregon corporation
("ACQUISITION"), and Florence have entered into an Agreement and Plan of Merger,
dated as of July 11, 2002 (the "MERGER AGREEMENT"), which provides that, among
other things, on the terms and subject to the conditions set forth therein,
Acquisition shall be merged with and into Florence (the "MERGER"), and each
share of Florence Stock will be converted into the right to receive 1.355 shares
of common stock, $0.01 par value per share (the "COMPANY STOCK"), of the
Company; and
WHEREAS, the Stockholder and the Company have entered into an Investor
Agreement, dated as of July 11, 2002 (the "INVESTOR AGREEMENT") and the
Amendment Agreement, dated as of July 11, 2002 (the "AMENDMENT AGREEMENT"); and
WHEREAS, the Stockholder and the Company each desire to make certain
covenants and agreements concerning the manner in which the Stockholder Florence
Shares (as herein defined) will be voted in connection with the Merger and the
Merger Agreement.
NOW, THEREFORE, in consideration of the Company's execution and
delivery to the Stockholder of the Investor Agreement and the Amendment
Agreement and in consideration of the mutual covenants and agreements contained
herein, the Stockholder and the Company agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.01 As used in this Agreement, the following terms have the respective
meanings ascribed to them in this Section.
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities means having "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Exchange Act), including pursuant to any
agreement,
<Page>
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 or entity shall include securities Beneficially Owned by all
other persons or entities with whom such person or entity would constitute a
"group" within the meaning of Section 13(d) of the Exchange Act with respect to
securities of the same issuer.
(b) "EFFECTIVE TIME" has the meaning set forth in the Merger Agreement.
(c) "EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
(d) "EXISTING FLORENCE SHARES" means all shares of Florence Common
Stock Beneficially Owned by the Stockholder on the date of this Agreement, in
each case, if and to the extent entitled to be voted.
(e) "FEI ACQUISITION PROPOSAL" has the meaning set forth in the Merger
Agreement.
(f) "FEI ACQUISITION TRANSACTION" has the meaning set forth in the
Merger Agreement.
(g) "NASDAQ" has the meaning set forth in the Merger Agreement.
(h) "PROXY" means a proxy in the form of Exhibit A attached to this
Agreement.
(i) "STOCKHOLDER FLORENCE SHARES" means the Existing Florence Shares
and any shares of Florence Stock and/or other equity securities of, or equity
interests in, Florence acquired by the 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 the Stockholder, in each case, if and to the
extent entitled to be voted.
(j) "SUPERIOR FEI PROPOSAL" has the meaning set forth in the Merger
Agreement.
(k) "TRANSFER" means 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 Stockholder Florence Shares by the Stockholder (in each of
the foregoing, whether voluntary or involuntary, by operation of law or
otherwise).
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(l) "TRANSFEREE" any person or entity to whom a Transfer is made.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 RECIPROCAL REPRESENTATIONS AND WARRANTIES. Each Party hereby
represents and warrants to the other as follows:
(a) Such Party is duly organized, validly existing and in good standing
under the laws of the jurisdiction of its organization. Such Party 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 (in the case of the
Stockholder) the Proxy. This Agreement and (in the case of the Stockholder) the
Proxy have been duly and validly authorized, executed and delivered by such
Party and constitutes such Party's legal, valid and binding obligation,
enforceable against it in accordance with its terms.
(b) Neither the execution and delivery of this Agreement or, in the
case of the Stockholder, the Proxy, nor the consummation of the transactions
contemplated by this Agreement or the Proxy 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 Party's certificate of incorporation
or similar organizational, governing or constating documents, (ii) any agreement
or instrument to which such Party 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.
(c) Except as set forth in the Merger Agreement and the schedules
thereto, no governmental filings, authorizations, approvals or consents, or
other governmental action, is required for (i) the execution and delivery of
this Agreement or, in the case of the Stockholder, the Proxy, (ii) the
performance by such Party of its obligations under this Agreement and the Proxy,
or (iii) the consummation by such Party of the transactions contemplated by this
Agreement and the Proxy.
2.02 STOCKHOLDER REPRESENTATIONS AND WARRANTIES. The Stockholder hereby
represents and warrants to the Company as follows:
(a) The Stockholder is the record and Beneficial Owner of 8,264,821
Existing Florence Shares. On the date of this Agreement, such Existing Shares
constitute all of the shares of Florence Stock owned of record or Beneficially
Owned by the Stockholder.
(b) The Stockholder owns the Existing Florence Shares free and clear of
any liens, claims, security interests, proxies, voting trusts or agreements,
restrictions,
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qualifications, limitations, understandings or arrangements which would in any
way restrict or impair the Stockholder's right to vote Stockholder Florence
Shares in its sole discretion, or could require the Stockholder to sell or
transfer any Stockholder Florence Shares (whether upon default on a loan or
otherwise) before the Effective Time.
(c) The Stockholder has sufficient voting power and sufficient power to
issue instructions and sufficient power to agree to the matters set forth in
this Agreement with respect to the Stockholder Florence Shares.
ARTICLE III
AGREEMENTS IN RESPECT OF THE STOCKHOLDER FLORENCE SHARES
3.01 VOTE FOR MERGER.
(a) The Stockholder shall cause the Stockholder Florence Shares to be
counted as present for purposes of establishing a quorum at any meeting of
stockholders of Florence called to vote upon the Merger and 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, and shall cause the Stockholder
Florence Shares to be voted or consented in favor of the Merger; PROVIDED that
nothing set forth in this Section 3.01(a) or in the Proxy is intended or shall
be construed to restrict or impair the right of the Stockholder to vote or
consent (or cause to be voted or consented) any Stockholder Florence Shares in
favor of any Superior FEI Proposal or related FEI Acquisition Transaction.
(b) In order to effectuate the voting arrangements contemplated by
Sections 3.01(a) and 3.02, contemporaneously with the execution and delivery by
the Parties of this Agreement, and as a condition to such execution and delivery
by the Company, the Stockholder is delivering to the Company the Proxy, duly
executed by or on behalf of the Stockholder; PROVIDED that nothing set forth in
this Section 3.01(b) or in the Proxy is intended or shall be construed to
restrict or impair the right of the Stockholder to vote or consent (or cause to
be voted or consented) any Stockholder Florence Shares in favor of any Superior
FEI Proposal or related FEI Acquisition Transaction.
3.02 VOTE AGAINST CERTAIN MATTERS. Prior to the Effective Time, the
Stockholder shall cause the Stockholder Florence Shares to be counted as present
for purposes of establishing a quorum at any meeting of stockholders of Florence
called, or at any adjournment or postponement thereof, or in any other
circumstances upon which a vote, consent or other approval is sought, and shall
cause the Stockholder Florence Shares to be voted or consented against any
proposal or transaction involving Florence or any of its subsidiaries that would
prevent or nullify the Merger or the Merger Agreement (any such proposal or
transaction, a "PARTICULAR MATTER"); PROVIDED that nothing set forth
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in this Section 3.02 or such Proxy is intended or shall be construed to restrict
or impair the right of the Stockholder to vote or consent (or cause to be voted
or consented) any Stockholder Florence Shares in favor of any Superior FEI
Proposal or related FEI Acquisition Transaction.
3.03 TRANSFERS; OTHER VOTING ARRANGEMENTS.
(a) The Stockholder may not Transfer any Stockholder Florence Shares
except (i) to a Transferee that both (A) agrees, prior to the consummation of
such Transfer, to become bound by this Agreement and the Proxy and subject to
the terms, conditions and restrictions hereof and thereof in the same manner as
the Stockholder, by executing and delivering to the Company a writing to such
effect in form and substance satisfactory to the Company, and (B) enters into,
prior to the consummation of such Transfer, a "standstill" agreement with
respect to each of Florence and the Company, each of which "standstill"
agreements (I) shall be identical in substance to Section 4.01(a) of the
Investor Agreement and otherwise in form and substance satisfactory to Florence
or the Company, as the case may be, and (II) shall be effective only for the
period between the consummation of such Transfer and the Effective Time, or (ii)
to a Transferee that has made a Superior FEI Proposal in the FEI Acquisition
Transaction contemplated by such Superior FEI Proposal.
(b) The Stockholder shall not, directly or indirectly, enter into any
voting arrangement, whether by proxy, voting arrangement, voting agreement,
voting trust or otherwise with respect to any Stockholder Florence Shares, other
than this Agreement and the Proxy; PROVIDED that nothing set forth in this
Section 3.03 or in the Proxy is intended or shall be construed to restrict or
impair the right of the Stockholder to vote or consent (or grant a proxy causing
to be voted or consented) any Stockholder Florence Shares in favor of any
Superior FEI Proposal or related FEI Acquisition Transaction.
(c) The Stockholder shall not, directly or indirectly, take any action
that would or could reasonably be expected to invalidate or in any way limit the
enforceability by the Proxyholders (as defined in the Proxy) of the Proxy.
(d) Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall limit or restrict any employee of the
Stockholder from acting in his or her capacity as a director or officer of
Florence (it being understood that this Agreement shall apply to the Stockholder
solely in the Stockholder's capacity as a stockholder of Florence). No conduct
or action taken by any employee of the Stockholder who is also a director or
officer of Florence, in his capacity as such, shall be deemed to constitute a
breach of any provision of this Agreement.
3.04 CONFIDENTIALITY. Prior to the first public announcement by the
Company and Florence of the Merger Agreement, the Merger and the other
transactions contemplated thereby, the Stockholder shall not, and shall cause
its Affiliates (as defined in the Merger Agreement) and its and their respective
employees, counsel, advisors and
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representatives ("REPRESENTATIVES") not to, disclose to any person or entity any
information concerning the Merger Agreement, the Merger or the other
transactions contemplated thereby, or the discussions concerning the same,
PROVIDED, that such information may be disclosed to employees, counsel, advisors
and representatives of the Stockholder and its Affiliates who have been advised
of the foregoing obligations, and PROVIDED, FURTHER, that nothing set forth in
this Section 3.04 is intended or shall be construed to restrict or impair the
ability of the Stockholder or its Affiliates to comply with their respective
reporting obligations under applicable laws and stock exchange regulations, in
which event the 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.
3.05 DISCLOSURE. Each Party acknowledges that the other Party is or may
be obligated to disclose in governmental and stock exchange (including NASDAQ)
filings the Stockholder's identity, facts concerning the Stockholder's ownership
of Florence Stock and the nature of the commitments, arrangements and
understandings set forth in this Agreement, the Proxy, the Investor Agreement,
the Amendment Agreement and any other agreements executed and delivered in
connection with the Merger, together with such other information as may be
required by applicable laws and stock exchange regulations. No Party shall issue
any press release naming the other Party or any of the other Party's Affiliates
unless such press release has been approved by such other Party, which approval
shall not be unreasonably withheld, delayed or conditioned.
3.06 NO SOLICITATION. Subject to Section 3.03(d), the Stockholder shall
not, and shall cause Koninklijke Philips Electronics N.V. ("PHILIPS") and each
other direct and indirect subsidiary of Philips not to, take any action to
solicit, initiate, encourage, induce or facilitate the making, submission or
announcement of any FEI Acquisition Proposal, or engage in discussions or
negotiations with any person or entity (other than with Florence and the Company
or any of their Affiliates or Representatives) with respect to any FEI
Acquisition Proposal, (other than any Superior FEI Proposal or related FEI
Acquisition Transaction) or disclose any nonpublic information relating to
Florence or any subsidiary of Florence. The Stockholder shall advise Florence
and the Company of any FEI Acquisition Proposal (including the identity of the
person or entity making or submitting such FEI Acquisition Proposal and the
terms thereof) that is made or submitted by any person or entity after the date
of this Agreement, reasonably promptly following its receipt thereof. The
Stockholder shall keep Florence and the Company reasonably informed with respect
to the status of any such FEI Acquisition Proposal. The Stockholder shall, and
shall cause Philips and each other direct and indirect subsidiary of Philips to,
immediately cease and cause to be terminated any discussions now pending with
any person or entity that relate to any FEI Acquisition Proposal or FEI
Acquisition Transaction, other than discussions or negotiations with Florence
and the Company or their Affiliates or Representatives.
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ARTICLE IV
MISCELLANEOUS
4.01 TERMINATION OF AGREEMENT. The provisions of this Agreement and the
Proxy shall automatically terminate upon, and be of no further force or effect
after, the earliest to occur of (i) the termination of the Merger Agreement in
accordance with its terms, (ii) the Effective Time, and (iii) the execution and
delivery by any party to the Merger Agreement of any amendment thereto which
would cause each share of Florence Stock to be converted into the right to
receive fewer than 1.355 shares of Company Stock (as adjusted for any stock
splits, reverse stock splits, stock dividends or similar events).
4.02 ENTIRE AGREEMENT. This Agreement and the Proxy 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.
4.03 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.
4.04 BINDING AGREEMENT; ASSIGNMENT.
(a) The Stockholder agrees that this Agreement and the obligations
hereunder shall attach to the Stockholder Florence Shares and shall be binding
upon any person to which record or Beneficial Ownership of such Stockholder
Florence Shares shall pass, whether by operation of law or otherwise, including,
without limitation, the Stockholder's successors, partners or Transferees (for
value or otherwise) and any other successors in interest. Notwithstanding any
transfer of Florence Stock, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(b) Notwithstanding anything to the contrary set forth herein, except
in accordance with Section 3.03(a), 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 the Company may assign, in its
sole discretion, its rights and obligations hereunder to any direct or indirect
wholly-owned subsidiary of the Company, but no such assignment shall relieve the
Company of its obligations hereunder if such assignee does not perform such
obligations.
4.05 NOTICES AND OTHER COMMUNICATIONS. Any notice or other
communication under this Agreement must be in writing and will be deemed given
when
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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 after 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:
Veeco Instruments Inc.
100 Sunnyside Boulevard
Woodbury, New York 11797
Attention: Gregory A. Robbins
Telephone: (516) 677-0200
Telecopier: (516) 677-9125
with a copy to:
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Attention: Rory A. Greiss
Telephone: (212) 836-8261
Telecopier: (212) 836-7152
and a copy to:
FEI Company
7425 N.W. Evergreen Parkway
Hillsboro, Oregon 97124-5830
Attention: Bradley J. Thies
Telephone: (503) 640-7500
Telecopier: (503) 640-7509
and a copy to:
Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Attention: Larry W. Sonsini
Telephone: (650) 493-9300
Telecopier: (650) 493-6811
If to the Stockholder:
c/o Philips Semiconductors
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Legal Department
Building B460-1
Prof. Holstlaan 4
5656AA Eindhoven
The Netherlands
Attention: Guido Dierick
Telephone: +31 (40) 272-2041
Telecopier: +31 (40) 272-4005
with a copy to:
Sullivan & Cromwell
1870 Embarcadero Road
Palo Alto, California 94303
Attention: Matthew G. Hurd
Telephone: (650) 461-5600
Telecopier: (650) 461-5700
4.06 GOVERNING LAW. THIS AGREEMENT AND THE PROXY SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF
LAWS DOCTRINES.
4.07 AMENDMENTS. Prior to the Effective Time, this Agreement may be
amended only by a document in writing signed by each of the Parties.
4.08 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.
4.09 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, 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.
4.10 ENFORCEMENT. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement and the
Proxy were
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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 the Proxy
and to enforce specifically the terms and provisions of this Agreement and the
Proxy 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 the Stockholder,
the 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 Party 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 the 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 the Proxy or any of the
transactions contemplated hereby or thereby.
4.11 FURTHER ASSURANCES. From time to time, at the Company's request
and without further consideration, the Stockholder shall execute and deliver
such additional documents and take all such further lawful action as may be
necessary or appropriate to effect the full and prompt performance of the
Stockholder's obligations pursuant to this Agreement and the validity and
enforceability of the Proxy.
(Signature page follows)
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IN WITNESS WHEREOF, the Parties have executed this Agreement as of the
date first written above.
PHILIPS BUSINESS ELECTRONICS INTERNATIONAL B.V.
By:
-----------------------------------------------------------
Name: J.C. Lobbezoo
Title: Member Management Board
By:
-----------------------------------------------------------
Name: A.P.M. van der Poel
Title: Member Management Board
VEECO INSTRUMENTS INC.
By:
-----------------------------------------------------------
Name:
Title:
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EXHIBIT A
PROXY
Reference is hereby made to that certain Voting Agreement, dated as of
July 11, 2002 (the "VOTING AGREEMENT"), of which this Proxy (this "PROXY") forms
a part. Capitalized terms used but not defined in this Proxy have the respective
meanings ascribed to such terms in the Voting Agreement. This Proxy is being
delivered by the undersigned Stockholder (the "GRANTING STOCKHOLDER") pursuant
to Section 3.01(b) of the Voting Agreement.
The undersigned Granting Stockholder hereby appoints Veeco Instruments
Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers and other
designees (each such person or entity, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of ORS ss.
60.231 (2001), 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 Stockholder Florence Shares which the
Granting Stockholder is entitled to vote at any meeting of the stockholders of
Florence (whether annual or special and whether or not an adjourned or postponed
meeting) or consent in lieu of any such meeting or otherwise FOR AND IN FAVOR OF
the Merger; PROVIDED, HOWEVER, that nothing set forth in this Proxy 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 Stockholder Florence
Shares with respect to any Superior FEI Proposal or related FEI Acquisition
Transaction.
The Granting Stockholder hereby revokes all other proxies and powers of
attorney with respect to any Stockholder Florence Shares 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 purporting to grant the
specific voting powers specified herein. Any obligation of the Granting
Stockholder under this Proxy shall be binding upon the successors and assigns of
the Granting Stockholder.
THIS PROXY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL THE
EARLIEST TO OCCUR OF (I) THE TERMINATION OF THE MERGER AGREEMENT IN ACCORDANCE
WITH ITS TERMS, (II) THE EFFECTIVE TIME OF THE MERGER, AND (III) THE EXECUTION
AND DELIVERY BY ANY PARTY TO THE MERGER AGREEMENT OF ANY AMENDMENT THERETO WHICH
WOULD CAUSE EACH SHARE OF FLORENCE STOCK TO BE CONVERTED INTO THE RIGHT TO
RECEIVE FEWER THAN 1.355 SHARES OF COMPANY STOCK (AS ADJUSTED FOR ANY STOCK
SPLITS, REVERSE STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR EVENTS).
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THIS PROXY WILL AUTOMATICALLY TERMINATE AND WILL BE AUTOMATICALLY
REVOKED, AND THE INTEREST WITH WHICH THIS PROXY IS COUPLED WILL BE AUTOMATICALLY
EXTINGUISHED, UPON THE EARLIEST TO OCCUR OF THE EVENTS SPECIFIED IN THE PREVIOUS
SENTENCE.
PHILIPS BUSINESS ELECTRONICS INTERNATIONAL B.V.
By:
-----------------------------------------------------
Name:
Title:
By:
-----------------------------------------------------
Name:
Title:
Dated: July 11, 2002
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VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 11, 2002 (this "AGREEMENT"), among
each of the individuals listed on SCHEDULE A to this Agreement (each, an "FEI
STOCKHOLDER" and collectively, the "FEI STOCKHOLDERS"), and Veeco Instruments
Inc., a Delaware corporation (the "COMPANY" and, collectively with the FEI
Stockholders, the "PARTIES"). 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, FEI Company, an Oregon corporation ("FEI"), Venice Acquisition
Corp., an Oregon corporation and a wholly owned subsidiary of the Company
("ACQUISITION"), and the Company have entered into an Agreement and Plan of
Merger, dated as of July 11, 2002 (the "MERGER AGREEMENT"), which provides that,
among other things, on the terms and subject to the conditions set forth
therein, Acquisition shall be merged with and into FEI (the "MERGER"), and each
share of FEI Common Stock will be converted into the right to receive 1.355
shares of common stock, $0.01 par value per share (the "COMPANY STOCK"), of the
Company;
WHEREAS, each FEI Stockholder owns the number of Existing FEI Shares
(as defined herein) set forth opposite such FEI Stockholder's name on SCHEDULE A
hereto and the FEI Stockholders collectively own in the aggregate 607,648
Existing FEI Shares;
WHEREAS, this Agreement is the FEI Stockholders Voting Agreement
contemplated by and referred to in the third "WHEREAS" clause to the Merger
Agreement; and
WHEREAS, as a condition to the willingness of the Company to enter into
the Merger Agreement, the Company has requested that the FEI 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:
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ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.01 As used in this Agreement, the following terms have the respective
meanings ascribed to them in this Section.
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities means 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 or entity shall include securities Beneficially
Owned by all other persons or entities with whom such person or entity would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act
with respect to securities of the same issuer.
(b) "EFFECTIVE TIME" has the meaning set forth in the Merger Agreement.
(c) "EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
(d) "EXISTING FEI SHARES" means all shares of FEI Common Stock
Beneficially Owned by such FEI Stockholder on the date of this Agreement, in
each case, if and to the extent entitled to be voted.
(e) "FEI ACQUISITION PROPOSAL" has the meaning set forth in the Merger
Agreement.
(f) "FEI ACQUISITION TRANSACTION" has the meaning set forth in the
Merger Agreement.
(g) "NASDAQ" has the meaning set forth in the Merger Agreement.
(h) "PROXY" means a proxy in the form of EXHIBIT A attached to this
Agreement.
(i) "STOCKHOLDER FEI SHARES" means the Existing FEI Shares and any
shares of FEI Common Stock and/or other equity securities of, or equity
interests in, FEI acquired by such FEI 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
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any capacity or otherwise Beneficially Owned by such FEI Stockholder, in each
case, if and to the extent entitled to be voted.
(j) "TRANSFER" means 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 Stockholder FEI Shares by such FEI Stockholder (in each of
the foregoing, whether voluntary or involuntary, by operation of law or
otherwise).
(k) "TRANSFEREE" any person or entity to whom a Transfer is made.
(l) "SUPERIOR FEI PROPOSAL" has the meaning set forth in the Merger
Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 FEI STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each FEI
Stockholder represents and warrants to the Company as follows:
(a) Such FEI Stockholder has all power and authority necessary to
enable it to enter into this Agreement and the Proxy and to carry out the
transactions contemplated hereby and thereby. This Agreement and the Proxy have
been duly executed and delivered by such FEI Stockholder and each constitutes a
legal, valid and binding obligation, enforceable against such FEI Stockholder in
accordance with its terms.
(b) Neither the execution and delivery of this Agreement or the Proxy,
nor the consummation of the transactions contemplated by this Agreement, the
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 FEI Stockholder is a party or by which it
is bound, or (ii) any law, or any order, rule or regulation of any court or
governmental authority or other regulatory organization having jurisdiction over
it.
(c) Except as set forth in the Merger Agreement and the schedules
thereto, no governmental filings, authorizations, approvals or consents, or
other governmental action, is required for (i) the execution and delivery of
this Agreement or the Proxy, (ii) the performance by such FEI Stockholder of its
obligations under this Agreement and the Proxy, or (iii) the consummation by
such FEI Stockholder of the transactions contemplated by this Agreement and the
Proxy.
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(d) Such FEI Stockholder is the record and Beneficial Owner of the
number of Existing FEI Shares set forth opposite such FEI Stockholder's name on
SCHEDULE A hereto. On the date of this Agreement, such Existing FEI Shares
constitute all of the shares of FEI Common Stock owned of record or Beneficially
Owned by such FEI Stockholder.
(e) Such FEI Stockholder owns the number of Existing FEI Shares set
forth opposite such FEI 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 FEI Stockholder's right to vote such
Existing FEI Shares in its sole discretion, or could require such FEI
Stockholder to sell or transfer any of such Existing FEI Shares (whether upon
default on a loan or otherwise) before the Effective Time.
(f) Such FEI Stockholder has sufficient voting power and sufficient
power to issue instructions and sufficient power to agree to the matters set
forth in this Agreement with respect to all of such FEI Stockholder's Existing
FEI Shares.
(g) The obligations of such FEI Stockholder under this Agreement shall
survive the death, disability or incapacity of such FEI Stockholder.
2.02 COMPANY REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the FEI Stockholders as follows:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. The Company has
all power and authority necessary to enable it to enter into this Agreement and
to carry out the transactions contemplated hereby. This Agreement has been duly
and validly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
(b) Neither the execution and delivery of this Agreement 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 (i) the Company's
certificate of incorporation or similar organizational or governing documents,
(ii) any agreement or instrument to which the Company 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.
(c) Except as set forth in the Merger Agreement and the schedules
thereto, no governmental filings, authorizations, approvals or consents, or
other governmental action, is required for (i) the execution and delivery of
this Agreement, (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.
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ARTICLE III
AGREEMENTS IN RESPECT OF THE STOCKHOLDER FEI SHARES
3.01 VOTE FOR MERGER.
(a) Such FEI Stockholder shall cause its Stockholder FEI Shares to be
counted as present for purposes of establishing a quorum at any meeting of
stockholders of FEI called to vote upon the Merger, 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 is sought, and shall cause such
Stockholder FEI Shares to be voted or consented in favor of approving the
Merger; PROVIDED that nothing set forth in this Section 3.01(a) or in the Proxy
is intended or shall be construed to restrict or impair the right of such FEI
Stockholder to vote or consent (or cause to be voted or consented) any of its
Stockholder FEI Shares in favor of any Superior FEI Proposal or related FEI
Acquisition Transaction.
(b) In order to effectuate the voting arrangements contemplated by
Sections 3.01(a) and 3.02, contemporaneously with the execution and delivery by
the FEI Stockholders and the Company of this Agreement, and as a condition to
such execution and delivery by the Company, such FEI Stockholder is delivering
to the Company the Proxy, duly executed by or on behalf of such FEI Stockholder;
PROVIDED that nothing set forth in this Section 3.01(b) or in the Proxy is
intended or shall be construed to restrict or impair the right of such FEI
Stockholder to vote or consent (or cause to be voted or consented) any of its
Stockholder FEI Shares in favor of any Superior FEI Proposal or related FEI
Acquisition Transaction.
3.02 VOTE AGAINST CERTAIN MATTERS. Prior to the Effective Time, such
FEI Stockholder shall cause its Stockholder FEI Shares to be counted as present
for purposes of establishing a quorum at any meeting of stockholders of FEI
called, or at any adjournment or postponement thereof, or in any other
circumstances upon which a vote, consent or other approval is sought, and shall
cause its Stockholder FEI Shares to be voted or consented against any proposal
or transaction involving FEI or any of its subsidiaries that would prevent or
nullify the Merger or the Merger Agreement (any such proposal or transaction, a
"PARTICULAR MATTER"); PROVIDED that nothing set forth in this Section 3.02 or
such Proxy is intended or shall be construed to restrict or impair the right of
such FEI Stockholder to vote or consent (or cause to be voted or consented) any
of its Stockholder FEI Shares in favor of any Superior FEI Proposal or related
FEI Acquisition Transaction.
3.03 TRANSFERS; OTHER VOTING ARRANGEMENTS.
(a) Such FEI Stockholder may not Transfer any Stockholder FEI Shares
except to a Transferee that has made a Superior FEI Proposal in the FEI
Acquisition Transaction contemplated by such Superior FEI Proposal.
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(b) Such FEI Stockholder shall not, directly or indirectly, enter into
any voting arrangement, whether by proxy, voting arrangement, voting agreement,
voting trust or otherwise with respect to any of its Stockholder FEI Shares,
other than this Agreement and the Proxy; PROVIDED that nothing set forth in this
Section 3.03 or in the Proxy is intended or shall be construed to restrict or
impair the right of such FEI Stockholder to vote or consent (or grant a proxy
causing to be voted or consented) any of its Stockholder FEI Shares in favor of
any Superior FEI Proposal or related FEI Acquisition Transaction.
(c) Such FEI Stockholder shall not, directly or indirectly, take any
action that would or could reasonably be expected to invalidate or in any way
limit the enforceability by the Proxyholders (as defined in the Proxy) of the
Proxy.
(d) Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall limit or restrict such FEI Stockholder from
acting in his or her capacity as a director or officer of FEI (it being
understood that this Agreement shall apply to such FEI Stockholder solely in
such FEI Stockholder's capacity as a stockholder of FEI). No conduct or action
taken by such FEI Stockholder, if such FEI Stockholder is also a director or
officer of FEI (in his or her capacity as such), shall be deemed to constitute a
breach of any provision of this Agreement.
3.04 Confidentiality. Prior to the first public announcement by the
Company and FEI of the Merger Agreement, the Merger and the other transactions
contemplated thereby, such FEI Stockholder shall not disclose to any person or
entity any information concerning the Merger Agreement, the Merger or the other
transactions contemplated thereby, or the discussions concerning the same,
PROVIDED, that nothing set forth in this Section 3.04 is intended or shall be
construed to restrict or impair the ability of such FEI Stockholder to comply
with its reporting obligations under applicable laws and stock exchange
(including NASDAQ) regulations, in which event such FEI 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.
3.05 DISCLOSURE. Such FEI Stockholder acknowledges that the Company
and/or FEI may be obligated to disclose in governmental and stock exchange
(including NASDAQ) filings such FEI Stockholder's identity, facts concerning
such FEI Stockholder's ownership of Stockholder FEI Shares and the nature of the
commitments, arrangements and understandings set forth in this Agreement, the
Proxy, and any other agreements executed and delivered in connection with the
Merger, together with such other information as may be required by applicable
laws and stock exchange (including NASDAQ) regulations.
3.06 NO SOLICITATION. Subject to Section 3.03(d), such FEI Stockholder
shall not solicit, initiate, encourage, induce or facilitate the making,
submission or announcement of any FEI Acquisition Proposal, or engage in
discussions or negotiations
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with any person or entity (other than with FEI and the Company or any of their
Affiliates or Representatives) with respect to any FEI Acquisition Proposal,
other than any Superior FEI Proposal or related FEI Acquisition Transaction.
Such FEI Stockholder shall promptly advise FEI and the Company of any FEI
Acquisition Proposal (including the identity of the person or entity making or
submitting such FEI Acquisition Proposal and the terms thereof) that is made or
submitted by any person or entity after the date of this Agreement. Such FEI
Stockholder shall keep FEI and the Company reasonably informed with respect to
the status of any such FEI Acquisition Proposal. Such FEI Stockholder shall
immediately cease and cause to be terminated any existing discussions with any
person or entity that relate to any FEI Acquisition Proposal or FEI Acquisition
Transaction, other than discussions or negotiations with FEI and the Company or
their Affiliates or Representatives.
ARTICLE IV
MISCELLANEOUS
4.01 TERMINATION OF AGREEMENT. The provisions of this Agreement and the
Proxy shall automatically terminate upon, and be of no further force or effect
after, the earliest to occur of (i) the termination of the Merger Agreement in
accordance with its terms, (ii) the Effective Time, and (iii) the execution and
delivery by any party to the Merger Agreement of any amendment thereto which
would cause each share of FEI Stock to be converted into the right to receive
fewer than 1.355 shares of Company Stock (as adjusted for any stock splits,
reverse stock splits, stock dividends or similar events).
4.02 ENTIRE AGREEMENT. This Agreement and the Proxy 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.
4.03 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.
4.04 BINDING AGREEMENT; ASSIGNMENT.
(a) Such FEI Stockholder agrees that this Agreement and the obligations
hereunder shall attach to its Stockholder FEI Shares and shall be binding upon
any person to which record or Beneficial Ownership of such Stockholder FEI
Shares shall pass, whether by operation of law or otherwise, including, without
limitation,
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such FEI Stockholder's successors, partners or Transferees (for value or
otherwise) and any other successors in interest. Notwithstanding any transfer of
FEI Common Stock, the transferor shall remain liable for the performance of all
obligations under this Agreement of the transferor.
(b) Notwithstanding anything to the contrary set forth herein, except
in accordance with Section 3.03(a) hereto, no party hereto may assign any of its
rights or obligations hereunder, by operation of law or otherwise, without the
prior written consent of the other parties hereto; PROVIDED that the Company may
assign, in its sole discretion, its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of the Company, but no such
assignment shall relieve the Company of its obligations hereunder if such
assignee does not perform such obligations.
4.05 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 after
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 to:
Veeco Instruments Inc.
Corporate Headquarters
100 Sunnyside Boulevard
Woodbury, NY 11797
Attention: Greg Robbins
Telephone: (516) 677-0200
Telecopier: (516) 677-9125
with a copy to:
Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Attention: Rory A. Greiss, Esq.
Telephone: (212) 836-8261
Telecopier: (212) 836-7152
If to such FEI Stockholder:
Address set forth on the signature page hereto
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4.06 GOVERNING LAW. THIS AGREEMENT AND THE PROXY SHALL BE GOVERNED BY
AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF OREGON APPLICABLE TO
AGREEMENTS MADE AND PERFORMED IN SUCH STATE AND WITHOUT REGARD TO CONFLICTS OF
LAWS DOCTRINES.
4.07 AMENDMENTS. Prior to the Effective Time, this Agreement may be
amended only by a document in writing signed by each of the parties hereto.
4.08 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.
4.09 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, 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.
4.10 ENFORCEMENT. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement and the
Proxy 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 the Proxy and to enforce specifically the terms and provisions of this
Agreement and the Proxy 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 the
Stockholder, the 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 Party 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 the Proxy or any of the transactions contemplated hereby or
thereby in any court other than a Federal court sitting in the State
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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 the Proxy or any of the transactions contemplated hereby or
thereby.
4.11 FURTHER ASSURANCES. From time to time, at the Company's request
and without further consideration, such FEI Stockholder shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or appropriate to effect the full and prompt performance of such
FEI Stockholder's obligations pursuant to this Agreement and the validity and
enforceability of the Proxy.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
authorized and signed as of the date in the first paragraph of this Agreement.
THE "COMPANY"
VEECO INSTRUMENTS INC.
By:
--------------------------------
Name:
Title:
FEI STOCKHOLDER
By:
--------------------------------
Name:
Title:
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile No.:
----------------------
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SCHEDULE A
FEI STOCKHOLDER NO. OF EXISTING FEI SHARES HELD
- ---------------------------------- ------------------------------------
Name
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EXHIBIT A
PROXY
Reference is hereby made to that certain Voting Agreement, dated as of
July 11, 2002 (the "VOTING AGREEMENT"), of which this Proxy (this "PROXY") forms
a part. Capitalized terms used but not defined in this Proxy have the respective
meanings ascribed to such terms in the Voting Agreement. This Proxy is being
delivered by the undersigned Stockholder (the "GRANTING STOCKHOLDER") pursuant
to Section 3.01(b) of the Voting Agreement.
The undersigned Granting Stockholder hereby appoints Veeco Instruments
Inc., a Delaware corporation ("VEECO"), and each of Veeco's officers and other
designees (each such person or entity, a "PROXYHOLDER") as the Granting
Stockholder's attorney-in-fact and proxy pursuant to the provisions of ORS ss.
60.231 (2001), 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 Stockholder FEI Shares which the Granting
Stockholder is entitled to vote at any meeting of the stockholders of FEI
(whether annual or special and whether or not an adjourned or postponed meeting)
or consent in lieu of any such meeting or otherwise FOR AND IN FAVOR OF the
Merger; PROVIDED, HOWEVER, that nothing set forth in this Proxy 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 Stockholder FEI Shares
with respect to any Superior FEI Proposal or related FEI Acquisition
Transaction.
The Granting Stockholder hereby revokes all other proxies and powers of
attorney with respect to any Stockholder FEI Shares 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 purporting to grant the
specific voting powers specified herein. Any obligation of the Granting
Stockholder under this Proxy shall be binding upon the successors and assigns of
the Granting Stockholder.
THIS PROXY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL THE
EARLIEST TO OCCUR OF (I) THE TERMINATION OF THE MERGER AGREEMENT IN ACCORDANCE
WITH ITS TERMS, (II) THE EFFECTIVE TIME OF THE MERGER, AND (III) THE EXECUTION
AND DELIVERY BY ANY PARTY TO THE MERGER AGREEMENT OF ANY AMENDMENT THERETO WHICH
WOULD CAUSE EACH SHARE OF FEI STOCK TO BE CONVERTED INTO THE RIGHT TO RECEIVE
FEWER THAN 1.355 SHARES OF COMPANY STOCK (AS ADJUSTED FOR ANY STOCK SPLITS,
REVERSE STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR EVENTS). THIS PROXY WILL
AUTOMATICALLY TERMINATE AND WILL BE AUTOMATICALLY REVOKED, AND THE INTEREST WITH
WHICH THIS PROXY IS COUPLED WILL BE AUTOMATICALLY EXTINGUISHED, UPON THE
EARLIEST TO OCCUR OF THE EVENTS SPECIFIED IN THE PREVIOUS SENTENCE.
FEI STOCKHOLDER
By:
-------------------------------------------------
Name:
Title:
Dated:
-------------------------------------------------
<Page>
EXHIBIT B
Veeco Stockholder Voting Agreements
(ATTACHED HERETO)
<Page>
VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 11, 2002 (this "AGREEMENT"), among
each of the individuals listed on SCHEDULE A to this Agreement (each, a "VEECO
STOCKHOLDER" and collectively, the "VEECO STOCKHOLDERS"), and FEI Company, an
Oregon corporation (the "COMPANY" and, collectively with the Veeco Stockholders,
the "PARTIES"). 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, Veeco Instruments Inc. ("VEECO"), Venice Acquisition Corp., an
Oregon corporation and a wholly owned subsidiary of Veeco ("ACQUISITION"), and
the Company have entered into an Agreement and Plan of Merger, dated as of July
11, 2002 (the "MERGER AGREEMENT"), which provides that, among other things, on
the terms and subject to the conditions set forth therein, Acquisition shall be
merged with and into the Company (the "MERGER"), and each share of FEI Common
Stock will be converted into the right to receive 1.355 shares of Veeco common
stock, $0.01 par value per share (the "VEECO Stock");
WHEREAS, each Veeco Stockholder owns the number of Existing Veeco
Shares (as defined herein) set forth opposite such Veeco Stockholder's name on
SCHEDULE A hereto and the Veeco Stockholders collectively own in the aggregate
119,290 Existing Veeco Shares;
WHEREAS, this Agreement is a Veeco Stockholders Voting Agreement
contemplated by and referred to in the third "WHEREAS" clause to the Merger
Agreement; and
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:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
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1.01 As used in this Agreement, the following terms have the respective
meanings ascribed to them in this Section.
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities means 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 or entity shall include securities Beneficially
Owned by all other persons or entities with whom such person or entity would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act
with respect to securities of the same issuer.
(b) "EFFECTIVE TIME" has the meaning set forth in the Merger Agreement.
(c) "EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
(d) "EXISTING VEECO SHARES" means all shares of Veeco Stock
Beneficially Owned by such Veeco Stockholder on the date of this Agreement, in
each case, if and to the extent entitled to be voted.
(e) "NASDAQ" has the meaning set forth in the Merger Agreement.
(f) "PROXY" means a proxy in the form of EXHIBIT A attached to this
Agreement.
(g) "STOCKHOLDER VEECO SHARES" means the Existing Veeco Shares and any
shares of Veeco Stock and/or other equity securities of, or equity interests in,
Veeco acquired by such 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.
(h) "TRANSFER" means 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 Stockholder Veeco Shares by such Veeco Stockholder (in each
of the foregoing, whether voluntary or involuntary, by operation of law or
otherwise).
(i) "TRANSFEREE" any person or entity to whom a Transfer is made.
(j) "SUPERIOR VEECO PROPOSAL" has the meaning set forth in the Merger
Agreement.
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(k) "VEECO ACQUISITION PROPOSAL" has the meaning set forth in the
Merger Agreement.
(l) "VEECO ACQUISITION TRANSACTION" has the meaning set forth in the
Merger Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 VEECO STOCKHOLDER REPRESENTATIONS AND WARRANTIES. Each Veeco
Stockholder represents and warrants to the Company as follows:
(a) Such Veeco Stockholder has all power and authority necessary to
enable it to enter into this Agreement and the Proxy and to carry out the
transactions contemplated hereby and thereby. This Agreement and the Proxy have
been duly executed and delivered by such Veeco Stockholder and each constitutes
a legal, valid and binding obligation, enforceable against such Veeco
Stockholder in accordance with its terms.
(b) Neither the execution and delivery of this Agreement or the Proxy,
nor the consummation of the transactions contemplated by this Agreement, the
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
it is bound, or (ii) any law, or any order, rule or regulation of any court or
governmental authority or other regulatory organization having jurisdiction over
it.
(c) Except as set forth in the Merger Agreement and the schedules
thereto, no governmental filings, authorizations, approvals or consents, or
other governmental action, is required for (i) the execution and delivery of
this Agreement or the Proxy, (ii) the performance by such Veeco Stockholder of
its obligations under this Agreement and the Proxy, or (iii) the consummation by
such Veeco Stockholder of the transactions contemplated by this Agreement and
the Proxy.
(d) 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 hereto. On the date of this Agreement, such Existing Veeco Shares
constitute all of the shares of Veeco Stock owned of record or Beneficially
Owned by such Veeco Stockholder.
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(e) 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 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.
(f) Such Veeco Stockholder has sufficient voting power and sufficient
power to issue instructions and sufficient power to agree to the matters set
forth in this Agreement with respect to all of such Veeco Stockholder's Existing
Veeco Shares.
(g) The obligations of such Veeco Stockholder under this Agreement
shall survive the death, disability or incapacity of such Veeco Stockholder.
2.02 COMPANY REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Veeco Stockholders as follows:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. The Company has
all power and authority necessary to enable it to enter into this Agreement and
to carry out the transactions contemplated hereby. This Agreement has been duly
and validly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
(b) Neither the execution and delivery of this Agreement 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 (i) the Company's
articles of incorporation or similar organizational or governing documents, (ii)
any agreement or instrument to which the Company 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.
(c) Except as set forth in the Merger Agreement and the schedules
thereto, no governmental filings, authorizations, approvals or consents, or
other governmental action, is required for (i) the execution and delivery of
this Agreement, (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.
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ARTICLE III
AGREEMENTS IN RESPECT OF THE STOCKHOLDER VEECO SHARES
3.01 VOTE FOR MERGER.
(a) Such Veeco Stockholder shall cause its Stockholder Veeco Shares to
be counted as present for purposes of establishing a quorum at any meeting of
stockholders of Veeco called to vote upon the issuance of Veeco Stock in the
Merger or approval of the Veeco Certificate of Incorporation Amendment, or at
any adjournment or postponement thereof, or in any other circumstances upon
which a vote, consent or other approval with respect to the issuance of Veeco
Stock in the Merger or the Veeco Certificate of Incorporation Amendment is
sought, and shall cause such Stockholder Veeco Shares to be voted or consented
in favor of approving the issuance of Veeco Stock in the Merger and the Veeco
Certificate of Incorporation Amendment; PROVIDED that nothing set forth in this
Section 3.01(a) or in the Proxy is intended or shall be construed to restrict or
impair the right of such Veeco Stockholder to vote or consent (or cause to be
voted or consented) any of its Stockholder Veeco Shares in favor of any Superior
Veeco Proposal or related Veeco Acquisition Transaction.
(b) In order to effectuate the voting arrangements contemplated by
Sections 3.01(a) and 3.02, contemporaneously with the execution and delivery by
the Veeco Stockholders and the Company of this Agreement, and as a condition to
such execution and delivery by the Company, such Veeco Stockholder is delivering
to the Company the Proxy, duly executed by or on behalf of such Veeco
Stockholder; PROVIDED that nothing set forth in this Section 3.01(b) or in the
Proxy is intended or shall be construed to restrict or impair the right of such
Veeco Stockholder to vote or consent (or cause to be voted or consented) any of
its Stockholder Veeco Shares in favor of any Superior Veeco Proposal or related
Veeco Acquisition Transaction.
3.02 VOTE AGAINST CERTAIN MATTERS. Prior to the Effective Time, such
Veeco Stockholder shall cause its Stockholder Veeco Shares to be counted as
present for purposes of establishing a quorum at any meeting of stockholders of
Veeco called, or at any adjournment or postponement thereof, or in any other
circumstances upon which a vote, consent or other approval is sought, and shall
cause its Stockholder Veeco Shares to be voted or consented against any proposal
or transaction involving Veeco or any of its subsidiaries that would prevent or
nullify the Merger or the Merger Agreement (any such proposal or transaction, a
"PARTICULAR MATTER"); PROVIDED that nothing set forth in this Section 3.02 or
such Proxy is intended or shall be construed to restrict or impair the right of
such Veeco Stockholder to vote or consent (or cause to be voted or consented)
any of its Stockholder Veeco Shares in favor of any Superior Veeco Proposal or
related Veeco Acquisition Transaction.
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3.03 TRANSFERS; OTHER VOTING ARRANGEMENTS.
(a) Such Veeco Stockholder may not Transfer any Stockholder Veeco
Shares except to a Transferee that has made a Superior Veeco Proposal in the
Veeco Acquisition Transaction contemplated by such Superior Veeco Proposal.
(b) Such Veeco Stockholder shall not, directly or indirectly, enter
into any voting arrangement, whether by proxy, voting arrangement, voting
agreement, voting trust or otherwise with respect to any of its Stockholder
Veeco Shares, other than this Agreement and the Proxy; PROVIDED that nothing set
forth in this Section 3.03 or in the Proxy is intended or shall be construed to
restrict or impair the right of such Veeco Stockholder to vote or consent (or
grant a proxy causing to be voted or consented) any of its Stockholder Veeco
Shares in favor of any Superior Veeco Proposal or related Veeco Acquisition
Transaction.
(c) Such Veeco Stockholder shall not, directly or indirectly, take any
action that would or could reasonably be expected to invalidate or in any way
limit the enforceability by the Proxyholders (as defined in the Proxy) of the
Proxy.
(d) Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall limit or restrict such Veeco Stockholder from
acting in his or her capacity as a director or officer of Veeco (it being
understood that this Agreement shall apply to such Veeco Stockholder solely in
such Veeco Stockholder's capacity as a stockholder of Veeco). No conduct or
action taken by such Veeco Stockholder, if such Veeco Stockholder is also a
director or officer of Veeco (in his or her capacity as such), shall be deemed
to constitute a breach of any provision of this Agreement.
3.04 Confidentiality. Prior to the first public announcement by the
Company and Veeco of the Merger Agreement, the Merger and the other transactions
contemplated thereby, such Veeco Stockholder shall not disclose to any person or
entity any information concerning the Merger Agreement, the Merger or the other
transactions contemplated thereby, or the discussions concerning the same,
PROVIDED, that nothing set forth in this Section 3.04 is intended or shall be
construed to restrict or impair the ability of such Veeco Stockholder to comply
with its reporting obligations under applicable laws and stock exchange
(including NASDAQ) regulations, 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.
3.05 DISCLOSURE. Such Veeco Stockholder acknowledges that the Company
may be obligated to disclose in governmental and stock exchange (including
NASDAQ) filings such Veeco Stockholder's identity, facts concerning such Veeco
Stockholder's ownership of Stockholder Veeco Shares and the nature of the
commitments, arrangements and understandings set forth in this Agreement, the
Proxy, and any other agreements executed and delivered in connection with the
Merger, together
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with such other information as may be required by applicable laws and stock
exchange (including NASDAQ) regulations.
3.06 NO SOLICITATION. Subject to Section 3.03(d), such Veeco
Stockholder shall not solicit, initiate, encourage, induce or facilitate the
making, submission or announcement of any Veeco Acquisition Proposal, or engage
in discussions or negotiations with any person or entity (other than with Veeco
and the Company or any of their Affiliates or Representatives) with respect to
any Veeco Acquisition Proposal, other than any Superior Veeco Proposal or
related Veeco Acquisition Transaction. Such Veeco Stockholder shall promptly
advise Veeco and the Company of any Veeco Acquisition Proposal (including the
identity of the person or entity making or submitting such Veeco Acquisition
Proposal and the terms thereof) that is made or submitted by any person or
entity after the date of this Agreement. Such Veeco Stockholder shall keep Veeco
and the Company reasonably informed with respect to the status of any such Veeco
Acquisition Proposal. Such Veeco Stockholder shall immediately cease and cause
to be terminated any existing discussions with any person or entity that relate
to any Veeco Acquisition Proposal or Veeco Acquisition Transaction, other than
discussions or negotiations with Veeco and the Company or their Affiliates or
Representatives.
ARTICLE IV
MISCELLANEOUS
4.01 TERMINATION OF AGREEMENT. The provisions of this Agreement and the
Proxy shall automatically terminate upon, and be of no further force or effect
after, the earliest to occur of (i) the termination of the Merger Agreement in
accordance with its terms, (ii) the Effective Time, and (iii) the execution and
delivery by any party to the Merger Agreement of any amendment thereto which
would cause each share of FEI Common Stock to be converted into the right to
receive greater than 1.355 shares of Veeco Stock (as adjusted for any stock
splits, reverse stock splits, stock dividends or similar events).
4.02 ENTIRE AGREEMENT. This Agreement and the Proxy 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.
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4.03 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.
4.04 BINDING AGREEMENT; ASSIGNMENT.
(a) Such Veeco Stockholder agrees that this Agreement and the
obligations hereunder shall attach to its Stockholder Veeco Shares and shall be
binding upon any person to which record or Beneficial Ownership of such
Stockholder Veeco Shares shall pass, whether by operation of law or otherwise,
including, without limitation, such Veeco Stockholder's successors, partners or
Transferees (for value or otherwise) and any other successors in interest.
Notwithstanding any transfer of Veeco Stock, the transferor shall remain liable
for the performance of all obligations under this Agreement of the transferor.
(b) Notwithstanding anything to the contrary set forth herein, except
in accordance with Section 3.03(a) hereto, no party hereto may assign any of its
rights or obligations hereunder, by operation of law or otherwise, without the
prior written consent of the other parties hereto; PROVIDED that the Company may
assign, in its sole discretion, its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of the Company, but no such
assignment shall relieve the Company of its obligations hereunder if such
assignee does not perform such obligations.
4.05 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 after
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 to:
FEI Company
Corporate Headquarters
7451 NW Evergreen Parkway
Hillsboro, OR 97124
Attention: Bradley J. Thies
Telephone: (503) 640-7500
Telecopier: (503) 640-7570
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with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: Larry W. Sonsini, Esq.
Telephone: (650) 493-9300
Telecopier: (650) 493-6811
If to such Veeco Stockholder:
Address set forth on Schedule A hereto
4.06 GOVERNING LAW. THIS AGREEMENT AND THE PROXY 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.
4.07 AMENDMENTS. Prior to the Effective Time, this Agreement may be
amended only by a document in writing signed by each of the parties hereto.
4.08 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.
4.09 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, 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.
4.10 ENFORCEMENT. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement and the
Proxy 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 the Proxy and to enforce specifically the terms and provisions of this
Agreement and the Proxy 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
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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 the
Stockholder, the 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 Party 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 the 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 the
Proxy or any of the transactions contemplated hereby or thereby.
4.11 FURTHER ASSURANCES. From time to time, at the Company's request
and without further consideration, such Veeco Stockholder shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or appropriate to effect the full and prompt performance of such
Veeco Stockholder's obligations pursuant to this Agreement and the validity and
enforceability of the Proxy.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
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<Page>
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
authorized and signed as of the date in the first paragraph of this Agreement.
THE "COMPANY"
FEI COMPANY
By:
--------------------------------
Name:
Title:
VEECO STOCKHOLDER
By:
--------------------------------
Name:
Title:
Address for Notice:
------------------------------------
------------------------------------
------------------------------------
------------------------------------
Facsimile No.:
----------------------
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<Page>
SCHEDULE A
VEECO STOCKHOLDER NO. OF EXISTING VEECO SHARES HELD
- -------------------------------- ---------------------------------------
Name
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<Page>
EXHIBIT A
PROXY
Reference is hereby made to that certain Voting Agreement, dated as of
July 11, 2002 (the "VOTING AGREEMENT"), of which this Proxy (this "PROXY") forms
a part. Capitalized terms used but not defined in this Proxy have the respective
meanings ascribed to such terms in the Voting Agreement. This Proxy is being
delivered by the undersigned Stockholder (the "GRANTING STOCKHOLDER") pursuant
to Section 3.01(b) of the Voting Agreement.
The undersigned Granting Stockholder hereby appoints FEI Company, an
Oregon corporation ("FEI"), and each of FEI's officers and other designees (each
such person or entity, 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 Stockholder Veeco
Shares 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 FOR
AND IN FAVOR OF the issuance of Veeco Stock in the Merger and approval of the
Veeco Certificate of Incorporation Amendment; PROVIDED, HOWEVER, that nothing
set forth in this Proxy 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 Stockholder Veeco Shares with respect to any Superior Veeco
Proposal or related Veeco Acquisition Transaction.
The Granting Stockholder hereby revokes all other proxies and powers of
attorney with respect to any Stockholder Veeco Shares 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 purporting to grant the
specific voting powers specified herein. Any obligation of the Granting
Stockholder under this Proxy shall be binding upon the successors and assigns of
the Granting Stockholder.
THIS PROXY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL THE
EARLIEST TO OCCUR OF (I) THE TERMINATION OF THE MERGER AGREEMENT IN ACCORDANCE
WITH ITS TERMS, (II) THE EFFECTIVE TIME OF THE MERGER, AND (III) THE EXECUTION
AND DELIVERY BY ANY PARTY TO THE MERGER AGREEMENT OF ANY AMENDMENT THERETO WHICH
WOULD CAUSE EACH SHARE OF FEI COMMON STOCK TO BE CONVERTED INTO THE RIGHT TO
RECEIVE GREATER THAN 1.355 SHARES OF VEECO STOCK (AS ADJUSTED FOR ANY STOCK
SPLITS, REVERSE STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR EVENTS). THIS PROXY
WILL AUTOMATICALLY TERMINATE AND WILL BE AUTOMATICALLY REVOKED, AND THE INTEREST
WITH WHICH THIS PROXY IS COUPLED WILL BE AUTOMATICALLY EXTINGUISHED, UPON THE
EARLIEST TO OCCUR OF THE EVENTS SPECIFIED IN THE PREVIOUS SENTENCE.
VEECO STOCKHOLDER
By:
-----------------------------------------------
Name:
Title:
Dated:
-----------------------------------------------
<Page>
VOTING AGREEMENT
VOTING AGREEMENT, dated as of July 11, 2002 (this "AGREEMENT"), between
Chorus, L.P., a Minnesota limited partnership (the "VEECO STOCKHOLDER") and FEI
Company, an Oregon corporation (the "COMPANY" and, collectively with the Veeco
Stockholder, the "PARTIES"). 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, Veeco Instruments Inc. ("VEECO"), Venice Acquisition Corp., an
Oregon corporation and a wholly owned subsidiary of Veeco ("ACQUISITION"), and
the Company have entered into an Agreement and Plan of Merger, dated as of July
11, 2002 (the "MERGER AGREEMENT"), which provides that, among other things, on
the terms and subject to the conditions set forth therein, Acquisition shall be
merged with and into the Company (the "MERGER"), and each share of FEI Common
Stock will be converted into the right to receive 1.355 shares of common stock,
$0.01 par value per share (the "VEECO STOCK"), of Veeco;
WHEREAS, on the date hereof, the Veeco Stockholder Beneficially Owns
3,605,969 shares of Veeco Stock;
WHEREAS, this Agreement is a Veeco Stockholders Voting Agreement
contemplated by and referred to in the third "WHEREAS" clause to the Merger
Agreement; and
WHEREAS, as a condition to the willingness of the Company to enter into
the Merger Agreement, the Company has requested that the Veeco Stockholder 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:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.01 As used in this Agreement, the following terms have the respective
meanings ascribed to them in this Section.
(a) "BENEFICIALLY OWN" or "BENEFICIAL OWNERSHIP" with respect to any
securities means having "beneficial ownership" of such securities (as determined
<Page>
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 or entity shall include securities Beneficially
Owned by all other persons or entities with whom such person or entity would
constitute a "group" within the meaning of Section 13(d) of the Exchange Act
with respect to securities of the same issuer.
(b) "ESCROW SHARES" means the 206,625 shares of Veeco Stock owned of
record and Beneficially Owned by the Veeco Stockholder, which are subject to
that certain Escrow Agreement, dated as of September 17, 2001, among Veeco, Paul
E. Colombo, certain former stockholders of Applied Epi, Inc. and The Bank of
Cherry Creek, N.A.
(c) "EXCHANGE ACT" means the United States Securities Exchange Act of
1934, as amended.
(d) "EXISTING VEECO SHARES" means all shares of Veeco Stock
Beneficially Owned by the Veeco Stockholder on the Record Date, if and to the
extent entitled to be voted.
(e) "PROXY" means a proxy in the form of EXHIBIT A attached to this
Agreement.
(f) "RECORD DATE" means the record date established by the Veeco Board
of Directors with respect to the Veeco Stockholders' Meeting.
(g) "STOCKHOLDER VEECO SHARES" means the Existing Veeco Shares and any
shares of Veeco Stock and/or other equity securities of, or equity interests in,
Veeco acquired by the Veeco Stockholder in any capacity after the date of this
Agreement and Beneficially Owned by the Veeco Stockholder on the Record Date,
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 the Veeco Stockholder, in each
case, if and to the extent entitled to be voted.
(h) "TRANSFER" means 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 Stockholder Veeco Shares by the Veeco Stockholder (in each
of the foregoing, whether voluntary or involuntary, by operation of law or
otherwise).
(i) "TRANSFEREE" any person or entity to whom a Transfer is made.
<Page>
ARTICLE II
REPRESENTATIONS AND WARRANTIES
2.01 VEECO STOCKHOLDER REPRESENTATIONS AND WARRANTIES. The Veeco
Stockholder represents and warrants to the Company as follows:
(a) The Veeco Stockholder has all power and authority necessary to
enable it to enter into this Agreement and the Proxy and to carry out the
transactions contemplated hereby and thereby. This Agreement and the Proxy have
been duly executed and delivered by the Veeco Stockholder and each constitutes a
legal, valid and binding obligation, enforceable against the Veeco Stockholder
in accordance with its terms.
(b) Neither the execution and delivery of this Agreement or the Proxy,
nor the consummation of the transactions contemplated by this Agreement, the
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 the Veeco Stockholder is a party or by which it
is bound, or (ii)any law, or any order, rule or regulation of any court or
governmental authority or other regulatory organization having jurisdiction over
it.
(c) As of the date hereof, the Veeco Stockholder is the record owner
and Beneficial Owner of 3,605,969 shares of Veeco Stock, and such shares
constitute all of the shares of Veeco Stock owned of record by the Veeco
Stockholder.
(d) Other than that certain Escrow Agreement, dated as of September 17,
2001, among Veeco, Paul E. Colombo, certain former stockholders of Applied Epi,
Inc. and The Bank of Cherry Creek, N.A., the Veeco Stockholder owns the
3,605,969 shares of Veeco Stock free and clear of any liens, claims, security
interests, proxies, voting trusts or agreements, restrictions, qualifications,
limitations, understandings or arrangements that would in any way restrict or
impair the Veeco Stockholder's right to vote such shares of Veeco Stock in its
sole discretion, or could require the Veeco Stockholder to sell or transfer any
of such shares of Veeco Stock (whether upon default on a loan or otherwise)
before the Effective Time.
(e) The Veeco Stockholder has sufficient voting power and sufficient
power to issue instructions and sufficient power to agree to the matters set
forth in this Agreement with respect to all of the shares of Veeco Stock owned
by the Veeco Stockholder.
<Page>
2.02 COMPANY REPRESENTATIONS AND WARRANTIES. The Company hereby
represents and warrants to the Veeco Stockholder as follows:
(a) The Company is duly organized, validly existing and in good
standing under the laws of the jurisdiction of its organization. The Company has
all power and authority necessary to enable it to enter into this Agreement and
to carry out the transactions contemplated hereby. This Agreement has been duly
and validly authorized, executed and delivered by the Company and constitutes a
legal, valid and binding obligation, enforceable against it in accordance with
its terms.
(b) Neither the execution and delivery of this Agreement 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 (i) the Company's
articles of incorporation or similar organizational or governing documents,
(ii)any agreement or instrument to which the Company 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.
(c) Except as set forth in the Merger Agreement and the schedules
thereto, no governmental filings, authorizations, approvals or consents, or
other governmental action, is required for (i) the execution and delivery of
this Agreement, (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.
ARTICLE III
AGREEMENTS IN RESPECT OF THE STOCKHOLDER VEECO SHARES
3.01 VOTE FOR MERGER.
(a) The Veeco Stockholder shall cause its Stockholder Veeco Shares to
be counted as present for purposes of establishing a quorum at any meeting of
stockholders of Veeco called to vote upon the issuance of Veeco Stock in the
Merger or approval of the Veeco Certificate of Incorporation Amendment, or at
any adjournment or postponement thereof, or in any other circumstances upon
which a vote, consent or other approval with respect to the issuance of Veeco
Stock in the Merger or the Veeco Certificate of Incorporation Amendment is
sought, and shall cause such Stockholder Veeco Shares to be voted or consented
in favor of approving the issuance of Veeco Stock in the Merger and the Veeco
Certificate of Incorporation Amendment; PROVIDED that nothing set forth in this
Section 3.01(a) or in the Proxy is intended or shall be construed to restrict or
impair the right of the Veeco Stockholder to vote or consent (or cause to be
voted or consented) any of its Stockholder Veeco Shares in favor of any Superior
Veeco Proposal or related Veeco Acquisition Transaction.
<Page>
(b) In order to effectuate the voting arrangements contemplated by
Sections 3.01(a) and 3.02, contemporaneously with the execution and delivery by
the Veeco Stockholder and the Company of this Agreement, and as a condition to
such execution and delivery by the Company, the Veeco Stockholder is delivering
to the Company the Proxy, duly executed by or on behalf of the Veeco
Stockholder; PROVIDED that nothing set forth in this Section 3.01(b) or in the
Proxy is intended or shall be construed to restrict or impair the right of the
Veeco Stockholder to vote or consent (or cause to be voted or consented) any of
its Stockholder Veeco Shares in favor of any Superior Veeco Proposal or related
Veeco Acquisition Transaction.
3.02 VOTE AGAINST CERTAIN MATTERS. Prior to the Effective Time, the
Veeco Stockholder shall cause its Stockholder Veeco Shares to be counted as
present for purposes of establishing a quorum at any meeting of stockholders of
Veeco called, or at any adjournment or postponement thereof, or in any other
circumstances upon which a vote, consent or other approval is sought, and shall
cause its Stockholder Veeco Shares to be voted or consented against any proposal
or transaction involving Veeco or any of its subsidiaries that would prevent or
nullify the Merger or the Merger Agreement (any such proposal or transaction, a
"PARTICULAR MATTER"); PROVIDED that nothing set forth in this Section 3.02 or
such Proxy is intended or shall be construed to restrict or impair the right of
the Veeco Stockholder to vote or consent (or cause to be voted or consented) any
of its Stockholder Veeco Shares in favor of any Superior Veeco Proposal or
related Veeco Acquisition Transaction.
3.03 TRANSFERS; OTHER VOTING ARRANGEMENTS.
(a) The Veeco Stockholder may not Transfer any Escrow Shares except to
a Transferee that has made a Superior Veeco Proposal in the Veeco Acquisition
Transaction contemplated by such Superior Veeco Proposal.
(b) The Veeco Stockholder shall not, directly or indirectly, enter into
any voting arrangement, whether by proxy, voting arrangement, voting agreement,
voting trust or otherwise with respect to any of its Stockholder Veeco Shares,
other than this Agreement and the Proxy unless such arrangement, proxy
agreement, trust or other instrument provides for the voting of Stockholder
Veeco Shares in accordance with the terms of this Agreement; PROVIDED that
nothing set forth in this Section 3.03 or in the Proxy is intended or shall be
construed to restrict or impair the right of the Veeco Stockholder to vote or
consent (or grant a proxy causing to be voted or consented) any of its
Stockholder Veeco Shares in favor of any Superior Veeco Proposal or related
Veeco Acquisition Transaction.
(c) The Veeco Stockholder shall not, directly or indirectly, take any
action that would or could reasonably be expected to invalidate or in any way
limit the enforceability by the Proxyholders (as defined in the Proxy) of the
Proxy.
(d) Notwithstanding any provision of this Agreement to the contrary,
nothing in this Agreement shall limit or restrict the Veeco Stockholder from
directly or
<Page>
indirectly selling, transferring, pledging, assigning or otherwise disposing of
or entering into any contract, option, or other arrangement with respect to the
sale, transfer, pledge, assignment or other disposition of any Veeco Stock held
by the Veeco Stockholder, except the Escrow Shares, all without the attachment
of, or any obligation to be bound by, any provisions of this Agreement. 3.04
CONFIDENTIALITY. Prior to the first public announcement by the Company and Veeco
of the Merger Agreement, the Merger and the other transactions contemplated
thereby, the Veeco Stockholder shall not disclose to any person or entity any
information concerning the Merger Agreement, the Merger or the other
transactions contemplated thereby, or the discussions concerning the same,
PROVIDED, that nothing set forth in this Section 3.04 is intended or shall be
construed to restrict or impair the ability of the Veeco Stockholder to comply
with its reporting obligations under applicable laws and stock exchange
(including NASDAQ) regulations, in which event the 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.
3.05 DISCLOSURE. The Veeco Stockholder acknowledges that Veeco and/or
the Company may be obligated to disclose in governmental and stock exchange
(including NASDAQ) filings the Veeco Stockholder's identity, facts concerning
the Veeco Stockholder's ownership of Stockholder Veeco Shares and the nature of
the commitments, arrangements and understandings set forth in this Agreement,
the Proxy, and any other agreements executed and delivered in connection with
the Merger, together with such other information as may be required by
applicable laws and stock exchange (including NASDAQ) regulations.
3.06 NO SOLICITATION. Subject to Section 3.03(d), the Veeco Stockholder
shall not solicit, initiate, encourage, induce or facilitate the making,
submission or announcement of any Veeco Acquisition Proposal, or engage in
discussions or negotiations with any person or entity (other than with Veeco and
the Company or any of their Affiliates or Representatives) with respect to any
Veeco Acquisition Proposal, other than any Superior Veeco Proposal or related
Veeco Acquisition Transaction. The Veeco Stockholder shall promptly advise Veeco
and the Company of any Veeco Acquisition Proposal (including the identity of the
person or entity making or submitting such Veeco Acquisition Proposal and the
terms thereof) that is made or submitted by any person or entity after the date
of this Agreement. The Veeco Stockholder shall keep Veeco and the Company
reasonably informed with respect to the status of any such Veeco Acquisition
Proposal. The Veeco Stockholder shall immediately cease and cause to be
terminated any existing discussions with any person or entity that relate to any
Veeco Acquisition Proposal or Veeco Acquisition Transaction, other than
discussions or negotiations with Veeco and the Company or their Affiliates or
Representatives.
<Page>
ARTICLE IV
MISCELLANEOUS
4.01 TERMINATION OF AGREEMENT. The provisions of this Agreement and the
Proxy shall automatically terminate upon, and be of no further force or effect
after, the earliest to occur of (i) the termination of the Merger Agreement in
accordance with its terms, (ii) the Effective Time, and (iii) the execution and
delivery by any party to the Merger Agreement of any amendment thereto which
would cause each share of FEI Common Stock to be converted into the right to
receive greater than 1.355 shares of Veeco Stock (as adjusted for any stock
splits, reverse stock splits, stock dividends or similar events).
4.02 ENTIRE AGREEMENT. This Agreement and the Proxy 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.
4.03 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.
4.04 BINDING AGREEMENT; ASSIGNMENT.
(a) The Veeco Stockholder agrees that this Agreement and the
obligations hereunder shall attach to the Escrow Shares and shall be binding
upon any person to which record or Beneficial Ownership of such Escrow Shares
shall pass, whether by operation of law or otherwise, including, without
limitation, the Veeco Stockholder's successors, partners or Transferees (for
value or otherwise) and any other successors in interest. Notwithstanding any
transfer of any of the Escrow Shares, the transferor shall remain liable for the
performance of all obligations under this Agreement of the transferor.
(b) Notwithstanding anything to the contrary set forth herein, except
in accordance with Section 3.03(a) hereto, no party hereto may assign any of its
rights or obligations hereunder, by operation of law or otherwise, without the
prior written consent of the other parties hereto; PROVIDED that the Company may
assign, in its sole discretion, its rights and obligations hereunder to any
direct or indirect wholly owned subsidiary of the Company, but no such
assignment shall relieve the Company of its obligations hereunder if such
assignee does not perform such obligations.
<Page>
4.05 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 after
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 to:
FEI Company
Corporate Headquarters
7451 NW Evergreen Parkway
Hillsboro, OR 97124
Attention: Bradley J. Thies
Telephone: (503) 640-7500
Telecopier: (503) 640-7570
with a copy to:
Wilson Sonsini Goodrich & Rosati, P.C.
650 Page Mill Road
Palo Alto, CA 94304-1050
Attention: Larry W. Sonsini, Esq.
Telephone: (650) 493-9300
Telecopier: (650) 493-6811
If to the Veeco Stockholder:
Paul E. Colombo
4900 Constellation Drive
St. Paul, MN 55127
Telephone: (651) 482-0800
Telecopier: (651) 482-0600
with a copy to:
Robins, Kaplan, Miller & Ciresi L.L.P.
2800 LaSalle Plaza
800 LaSalle Avenue
Minneapolis, MN 55402-2015
Attention: John R. Houston, Esq.
Telephone: (612) 349-8285
Telecopier: (612) 339-4181
<Page>
4.06 GOVERNING LAW. THIS AGREEMENT AND THE PROXY 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.
4.07 AMENDMENTS. Prior to the Effective Time, this Agreement may be
amended only by a document in writing signed by each of the parties hereto.
4.08 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.
4.09 SEVERABILITY. If any provision of this Agreement is held to be
illegal, invalid or unenforceable, 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.
4.10 ENFORCEMENT. The parties hereto agree that irreparable damage
would occur in the event that any of the provisions of this Agreement and the
Proxy 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 the Proxy and to enforce specifically the terms and provisions of this
Agreement and the Proxy in any Federal court located in the State of Minnesota
or in a Minnesota 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 Minnesota or any Minnesota state court in any action or proceeding
relating to or arising out of this Agreement (including, with respect to the
Stockholder, the 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 Party 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 Minnesota state court to a Federal court located in the State
of Minnesota), (iv) agrees that such Party will not bring any action relating to
this Agreement or the Proxy or any of the transactions contemplated hereby or
thereby in any court other than a Federal court sitting in the State of
Minnesota or a Minnesota state court and (v) waives any right to trial by jury
with
<Page>
respect to any claim or proceeding related to or arising out of this Agreement
or the Proxy or any of the transactions contemplated hereby or thereby.
4.11 FURTHER ASSURANCES. From time to time, at the Company's request
and without further consideration, the Veeco Stockholder shall execute and
deliver such additional documents and take all such further lawful action as may
be necessary or appropriate to effect the full and prompt performance of the
Veeco Stockholder's obligations pursuant to this Agreement and the validity and
enforceability of the Proxy.
[REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]
<Page>
IN WITNESS WHEREOF, each party hereto has caused this Agreement to be duly
authorized and signed as of the date in the first paragraph of this Agreement.
THE "COMPANY"
FEI COMPANY
By:
--------------------------------
Vahe A. Sarkissian
President and Chief Executive
Officer
VEECO STOCKHOLDER
CHORUS, L.P.,
BY ITS GENERAL PARTNER
CHORUS MANAGEMENT, INC.
By:
--------------------------------
Name: Paul E. Colombo
Title: President
<Page>
EXHIBIT A
PROXY
Reference is hereby made to that certain Voting Agreement, dated as of
July __, 2002 (the "VOTING AGREEMENT"), of which this Proxy (this "PROXY") forms
a part. Capitalized terms used but not defined in this Proxy have the respective
meanings ascribed to such terms in the Voting Agreement. This Proxy is being
delivered by the undersigned Stockholder (the "GRANTING STOCKHOLDER") pursuant
to Section 3.01(b) of the Voting Agreement.
The undersigned Granting Stockholder hereby appoints FEI Company, an
Oregon corporation ("FEI"), and each of FEI's officers and other designees (each
such person or entity, 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 Stockholder Veeco
Shares 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 FOR
AND IN FAVOR OF the issuance of Veeco Stock in the Merger and approval of the
Veeco Certificate of Incorporation Amendment; PROVIDED, HOWEVER, that nothing
set forth in this Proxy 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 Stockholder Veeco Shares with respect to any Superior Veeco
Proposal or related Veeco Acquisition Transaction.
The Granting Stockholder hereby revokes all other proxies and powers of
attorney with respect to any Stockholder Veeco Shares 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 purporting to grant the
specific voting powers specified herein. Any obligation of the Granting
Stockholder under this Proxy shall be binding upon the successors and assigns of
the Granting Stockholder other than the transferees under Section 3.03(d).
THIS PROXY IS COUPLED WITH AN INTEREST AND IS IRREVOCABLE UNTIL THE
EARLIEST TO OCCUR OF (I) THE TERMINATION OF THE MERGER AGREEMENT IN ACCORDANCE
WITH ITS TERMS, (II) THE EFFECTIVE TIME OF THE MERGER, AND (III) THE EXECUTION
AND DELIVERY BY ANY PARTY TO THE MERGER AGREEMENT OF ANY AMENDMENT THERETO WHICH
WOULD CAUSE EACH SHARE OF FEI COMMON STOCK TO BE CONVERTED INTO THE RIGHT TO
RECEIVE GREATER THAN 1.355 SHARES OF VEECO STOCK (AS ADJUSTED FOR ANY STOCK
SPLITS, REVERSE STOCK SPLITS, STOCK DIVIDENDS OR SIMILAR EVENTS). THIS PROXY
WILL AUTOMATICALLY TERMINATE AND WILL BE AUTOMATICALLY REVOKED, AND THE INTEREST
WITH WHICH THIS PROXY IS COUPLED WILL BE AUTOMATICALLY EXTINGUISHED, UPON THE
EARLIEST TO OCCUR OF THE EVENTS SPECIFIED IN THE PREVIOUS SENTENCE.
VEECO STOCKHOLDER
By:
------------------------------------------------
Name:
Title:
Dated:
------------------------------------------------
<Page>
EXHIBIT C
Certificate of Amendment of the
Amended and Restated Certificate of Incorporation of Veeco Instruments Inc.
(ATTACHED HERETO)
-2-
<Page>
CERTIFICATE OF AMENDMENT
OF THE
AMENDED AND RESTATED
CERTIFICATE OF INCORPORATION
OF
VEECO INSTRUMENTS INC.
It is hereby certified that:
1. The name of the corporation (the "Corporation") is Veeco Instruments
Inc.
2. The Certificate of Incorporation of the Corporation was filed with
the Secretary of State on the 8th day of August, 1989. The Amended and Restated
Certificate of Incorporation was filed with the Secretary of State on December
1, 1994. Certificates of Amendment were filed with the Secretary of State on
each of November 20, 1989, January 17, 1990, January 19, 1990, March 25, 1992,
May 3, 1994, June 2, 1997, July 25, 1997 and May 5, 2000.
3. Article 4 of the Amended and Restated Certificate of Incorporation
of the Corporation, as amended to date, is hereby amended to read in its
entirety as follows:
"4. The corporation shall have authority to issue a total of
___________ shares, to be divided into ___________ shares of common
stock with par value of $0.01 per share and 500,000 shares of preferred
stock with par value of $0.01 per share."
4. The amendment to the Amended and Restated Certificate of
Incorporation effective hereby and herein certified has been duly adopted in
accordance with the provisions of Section 242 of the General Corporation Law of
the State of Delaware.
IN WITNESS WHEREOF, the Corporation has caused this Certificate of
Amendment to be executed by its duly authorized officer, who acknowledges and
affirms under the penalties of perjury that this certificate is the act and deed
of the Corporation and that the facts stated herein are true this __ day of
_______, 2002.
VEECO INSTRUMENTS INC.
By:
--------------------------
Name:
Title:
<Page>
EXHIBIT D
Articles of Merger
(ATTACHED HERETO)
<Page>
STATE OF OREGON
CORPORATION DIVISION
151 PUBLIC SERVICE BUILDING
255 CAPITOL STREET NE
SALEM, OR 97310-1237
REGISTRY NUMBER OF SURVIVING CORPORATION: ________________
ARTICLES OF MERGER
OF VENICE ACQUISITION CORP.
WITH AND INTO FEI COMPANY
These Articles of Merger are filed pursuant to ORS 60.481 and ORS
60.494 by FEI Company, an Oregon corporation ("FEI"), to be the surviving
corporation in the merger of Venice Acquisition Corp., an Oregon corporation
("Acquisition Corp."), with and into FEI (the "Merger").
PLAN OF MERGER. The plan of merger is attached hereto as EXHIBIT A and
is incorporated herein by reference.
SHAREHOLDER APPROVAL. The Merger required the approval of the
shareholders of FEI and Acquisition Corp.
Pursuant to ORS 60.487(5) and FEI's Second Amended and Restated
Articles of Incorporation, the holders of outstanding shares of FEI's common
stock were entitled to vote on the Merger. Pursuant to ORS 60.487(5) and
Acquisition Corp.'s Articles of Incorporation, the holders of outstanding shares
of Acquisition Corp.'s common stock were entitled to vote on the Merger. With
respect to the foregoing, the shareholders of FEI and Acquisition Corp. approved
the Merger, respectively, as follows:
(a) _______ shares of FEI common stock were outstanding and entitled to
vote on the Merger; _____ shares of common stock voted for the Merger and
____shares voted against the Merger.
(b) _______ shares of Acquisition Corp. common stock were outstanding
and entitled to vote on the Merger; _____ shares of common stock voted for the
Merger and ____shares voted against the Merger.
<Page>
EFFECTIVE DATE. The Merger shall be effective upon filing of the
Articles of Merger with the Secretary of State of the state of Oregon.
Dated: _____, 2002
FEI COMPANY
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
VENICE ACQUISITION CORP.
By:
-----------------------------
Name:
---------------------------
Title:
--------------------------
<Page>
EXHIBIT A
AGREEMENT AND PLAN OF MERGER
AMONG VEECO INSTRUMENTS INC., VENICE ACQUISITION CORP.
AND FEI COMPANY
<Page>
EXHIBIT E
Fourth Amended and Restated Bylaws of Veeco Instruments Inc.
(ATTACHED HERETO)
<Page>
FOURTH AMENDED AND RESTATED BYLAWS
OF
VEECO INSTRUMENTS INC.
(THE "CORPORATION")
EFFECTIVE ______ __, 2002
1. MEETINGS OF STOCKHOLDERS.
1.1 ANNUAL MEETING. The annual meeting of stockholders shall be held
at a place and time determined by the board of directors (the "Board").
1.2 SPECIAL MEETINGS. Special meetings of the stockholders may be
called by resolution of the Board or by the president or chief executive officer
and shall be called by the president, chief executive officer or secretary upon
the written request (stating the purpose or purposes of the meeting) of a
majority of the directors then in office or of the holders of 50% of the
outstanding shares entitled to vote. Only business related to the purposes set
forth in the notice of the meeting may be transacted at a special meeting.
1.3 PLACE AND TIME OF MEETINGS. Meetings of the stockholders may be
held in or outside Delaware at the place and time specified by the Board, the
chief executive officer of the Corporation or the directors or stockholders
requesting the meeting (as applicable).
1.4 NOTICE OF MEETINGS; WAIVER OF NOTICE. Written notice of each
meeting of stockholders shall be given to each stockholder entitled to vote at
the meeting, except that (a) it shall not be necessary to give notice to any
stockholder who submits a signed waiver of notice before or after the meeting,
and (b) no notice of an adjourned meeting need be given except when required
under Section 1.6 of these bylaws or by law. Each notice of a meeting shall be
given, personally or by mail, not less than 10 nor more than 60 days before the
meeting and shall state the time and place of the meeting, and unless it is the
annual meeting, shall state at whose direction or request the meeting is called
and the purposes for which it is called. If mailed, notice shall be considered
given when mailed to a stockholder at his address on the Corporation's records.
The attendance of any stockholder at a meeting, without protesting at the
beginning of the meeting that the meeting is not lawfully called or convened,
shall constitute a waiver of notice by him.
1.5 NATURE OF BUSINESS AT MEETINGS OF STOCKHOLDERS. No business may be
transacted at an annual or special meeting of stockholders, other than business
that is either (a) specified in the notice of meeting (or any supplement
thereto) given by or at the direction of the Board (or any duly authorized
committee thereof), (b) otherwise properly brought before the meeting by or at
the direction of the Board (or any duly authorized committee thereof) or (c)
otherwise properly brought before the meeting by any stockholder of the
Corporation (i) who is a stockholder of record on the date of the giving of the
notice provided for in this Section 1.5 and on the record date for the
determination of stockholders entitled to vote at such meeting and (ii) who
complies with the notice procedures set forth in this Section 1.5.
<Page>
In addition to any other applicable requirements, for business to
be properly brought before an annual or special meeting by a stockholder, such
stockholder must have given timely notice thereof in proper written form to the
secretary of the Corporation.
To be timely, a stockholder's notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (a) in the case of an annual meeting, not less than ninety (90) days
nor more than one hundred and twenty (120) days prior to the anniversary date of
the immediately preceding annual meeting of stockholders; PROVIDED, HOWEVER,
that in the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting, not less than ninety (90) days nor more than one hundred and
twenty (120) days prior to such special meeting.
To be in proper written form, a stockholder's notice to the
secretary must set forth as to each matter such stockholder proposes to bring
before the meeting (i) a brief description of the business desired to be brought
before the meeting and the reasons for conducting such business at the meeting,
(ii) the name and record address of such stockholder, (iii) the class or series
and number of shares of capital stock of the Corporation which are owned
beneficially or of record by such stockholder, (iv) a description of all
arrangements or understandings between such stockholder and any other person or
persons (including their names) in connection with the proposal of such business
by such stockholder and any material interest of such stockholder in such
business and (v) a representation that such stockholder intends to appear in
person or by proxy at the meeting to bring such business before the meeting.
At the same time or prior to the submission of any stockholder
proposal of business to be conducted at an annual or special meeting that, if
approved, could not be implemented by the Corporation without notifying or
obtaining the consent or approval of any federal, state, municipal or other
regulatory body, the proponent stockholder or stockholders shall submit to the
secretary of the Corporation an analysis, satisfactory to the Board,
demonstrating that the proposal will have no material detrimental effect on the
business and operations of the Corporation after making the requisite notices or
obtaining the requisite consents or approvals and after giving effect to the
potential responses thereto.
No business shall be conducted at a meeting of stockholders except
business brought before the meeting in accordance with the procedures set forth
in this Section 1.5; PROVIDED, HOWEVER, that, once business has been properly
brought before the meeting in accordance with such procedures, nothing in this
Section 1.5 shall be deemed to preclude discussion by any stockholder of any
such business. If the chairman of the meeting determines that business was not
properly brought before the meeting in accordance with such procedures, the
chairman shall declare to the meeting that the business was not properly brought
before the meeting and such business shall not be transacted.
1.6 QUORUM. At any meeting of stockholders, the presence in person or
by proxy of the holders of 50% of the shares entitled to vote shall constitute a
quorum for the transaction
2
<Page>
of any business. In the absence of a quorum, a majority in voting interest of
those present or, if no stockholders are present, any officer entitled to
preside at or to act as secretary of the meeting, may adjourn the meeting until
a quorum is present. At any adjourned meeting at which a quorum is present any
action may be taken which might have been taken at the meeting as originally
called. No notice of an adjourned meeting need be given if the time and place
are announced at the meeting at which the adjournment is taken except that, if
adjournment is for more than thirty days or if, after the adjournment, a new
record date is fixed for the meeting, notice of the adjourned meeting shall be
given pursuant to Section 1.4.
1.7 VOTING; PROXIES. Each stockholder of record shall be entitled to
one vote for every share registered in his name. Corporate action to be taken by
stockholder vote, other than the election of directors, shall be authorized by a
majority of the votes cast at a meeting of stockholders, except as otherwise
provided by law or by Section 1.9 of these bylaws. Directors shall be elected in
the manner provided in Section 2.1 of these bylaws. Voting need not be by ballot
unless ordered by the chairman of the meeting; however, all elections of
directors shall be by written ballot, unless otherwise provided in the
certificate of incorporation. Each stockholder entitled to vote at any meeting
of stockholders or to express consent to or dissent from corporate action in
writing without a meeting may authorize another person to act for him by proxy.
Every proxy must be signed by the stockholder or his attorney-in-fact. No proxy
shall be valid after three years from its date unless it provides otherwise.
1.8 LIST OF STOCKHOLDERS. Not less than 10 days prior to the date of
any meeting of stockholders, the secretary of the Corporation shall prepare a
complete list of stockholders entitled to vote at the meeting, arranged in
alphabetical order and showing the address of each stockholder and the number of
shares registered in his name. For a period of not less than 10 days prior to
the meeting, the list shall be available during ordinary business hours for
inspection by any stockholder for any purpose germane to the meeting. During
this period, the list shall be kept either (a) at a place within the city where
the meeting is to be held, if that place shall have been specified in the notice
of the meeting, or (b) if not so specified, at the place where the meeting is to
be held. The list shall also be available for inspection by stockholders at the
time and place of the meeting.
1.9 ACTION BY CONSENT WITHOUT A MEETING. No action required or
permitted to be taken at any meeting of stockholders may be taken by written
consent without a meeting.
2. BOARD OF DIRECTORS.
2.1 NUMBER, QUALIFICATION, ELECTION AND TERM OF DIRECTORS. The
business of the Corporation shall be managed by the Board. The Board shall
consist of not less than three nor more than fifteen members, the exact number
of which shall be determined from time to time by resolution adopted by a
majority vote of the directors then serving, but no decrease in the number of
directors that constitutes the Board may shorten the term of any incumbent
director. Subject to the rights of the holders of any series of preferred stock
to elect additional directors under specified circumstances, the directors shall
be divided into three (3) classes designated as Class I, Class II and Class III,
respectively, as nearly equal in size as possible. Unless otherwise provided in
the certificate of incorporation, directors shall be elected
3
<Page>
at each annual meeting of stockholders and shall hold office for a full term of
three (3) years to succeed the directors of the class whose terms expire at such
annual meeting. Each director shall also serve until the election and
qualification of their respective successors, subject to the provisions of
Section 2.10. As used in these bylaws, the term "entire Board" means the total
number of directors which the Corporation would have if there were no vacancies
on the Board.
2.2 NOMINATION OF DIRECTORS. Only persons who are nominated in
accordance with the following procedures shall be eligible for election as
directors of the Corporation, except as may be otherwise provided in the
Certificate of Incorporation with respect to the right of holders of preferred
stock of the Corporation, if any, to nominate and elect a specified number of
directors in certain circumstances. Nominations of persons for election to the
Board may be made at any annual meeting of stockholders, or at any special
meeting of stockholders called for the purpose of electing directors, (a) by or
at the direction of the Board (or any duly authorized committee thereof) or (b)
by any stockholder of the Corporation (i) who is a stockholder of record on the
date of the giving of the notice provided for in this Section 2.2 and on the
record date for the determination of stockholders entitled to vote at such
meeting and (ii) who complies with the notice procedures set forth in this
Section 2.2.
In addition to any other applicable requirements, for a nomination
to be made by a stockholder, such stockholder must have given timely notice
thereof in proper written form to the secretary of the Corporation.
To be timely, a stockholder's notice to the secretary must be
delivered to or mailed and received at the principal executive offices of the
Corporation (a) in the case of an annual meeting, not less than ninety (90) days
nor more than one hundred and twenty (120) days prior to the anniversary date of
the immediately preceding annual meeting of stockholders; PROVIDED, HOWEVER,
that in the event that the annual meeting is called for a date that is not
within thirty (30) days before or after such anniversary date, notice by the
stockholder in order to be timely must be so received not later than the close
of business on the tenth (10th) day following the day on which such notice of
the date of the annual meeting was mailed or such public disclosure of the date
of the annual meeting was made, whichever first occurs; and (b) in the case of a
special meeting of stockholders called for the purpose of electing directors,
not less than ninety (90) days nor more than one hundred and twenty (120) days
prior to such special meeting.
To be in proper written form, a stockholder's notice to the
secretary must set forth (a) as to each person whom the stockholder proposes to
nominate for election as a director (i) the name, age, business address and
residence address of the person, (ii) the principal occupation or employment of
the person, (iii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by the person and (iv)
any other information relating to the person that would be required to be
disclosed in a proxy statement or other filings required to be made in
connection with solicitations of proxies for election of directors pursuant to
Section 14 of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), and the rules and regulations promulgated thereunder; and (b) as to the
stockholder giving the notice (i) the name and record address of such
stockholder, (ii) the class or series and number of shares of capital stock of
the Corporation which are owned beneficially or of record by such stockholder,
(iii) a description of all arrangements or understandings
4
<Page>
between such stockholder and each proposed nominee and any other person or
persons (including their names) pursuant to which the nomination(s) are to be
made by such stockholder, (iv) a representation that such stockholder intends to
appear in person or by proxy at the meeting to nominate the persons named in its
notice and (v) any other information relating to such stockholder that would be
required to be disclosed in a proxy statement or other filings required to be
made in connection with solicitations of proxies for election of directors
pursuant to Section 14 of the Exchange Act and the rules and regulations
promulgated thereunder. Such notice must be accompanied by a written consent of
each proposed nominee to being named as a nominee and to serve as a director if
elected.
No person shall be eligible for election as a director of the
Corporation unless nominated in accordance with the procedures set forth in this
Section 2.2. If the chairman of the meeting determines that a nomination was not
made in accordance with the foregoing procedures, the chairman shall declare to
the meeting that the nomination was defective and such defective nomination
shall be disregarded.
2.3 QUORUM AND MANNER OF ACTING. A majority of the entire Board shall
constitute a quorum for the transaction of business at any meeting. Action of
the Board shall be authorized by the vote of a majority of the directors present
at the time of the vote if there is a quorum, unless otherwise provided by law
or these bylaws. In the absence of a quorum, a majority of the directors present
may adjourn any meeting from time to time until a quorum is present.
2.4 PLACE OF MEETINGS. Meetings of the Board may be held in or outside
Delaware.
2.5 ANNUAL AND REGULAR MEETINGS. Annual meetings of the Board, for the
election of officers and consideration of other matters, shall be held either
(a) without notice immediately after the annual meeting of stockholders and at
the same place, or (b) at such time and place as the chairman of the board shall
determine, on notice as provided in Section 2.7 of these Bylaws. Regular
meetings of the Board may be held without notice at such times and places as the
Board determines. If the day fixed for a regular is a legal holiday, the meeting
shall be held on the next business day.
2.6 SPECIAL MEETINGS. Special meetings of the Board may be called by
the chief executive officer of the Corporation or by a majority of the entire
Board.
2.7 NOTICE OF MEETINGS; WAIVER OF NOTICE. Notice of the time and place
of each special meeting of the Board, and of each annual meeting not held
immediately after the annual meeting of stockholders and at the same place,
shall be given to each director by mailing it to him at his residence or usual
place of business at least three days before the meeting, or by delivering or
telephoning or telecopying it to him at least two days before the meeting.
Notice of a special meeting shall also state the purpose or purposes for which
the meeting is called. Notice need not be given to any director who submits a
signed waiver of notice before or after the meeting or who attends the meeting
without protesting at the beginning of the meeting the transaction of any
business because the meeting was not lawfully called or convened. Notice of
5
<Page>
any adjourned meeting need not be given, other than by announcement at the
meeting at which the adjournment is taken.
2.8 BOARD OR COMMITTEE ACTION WITHOUT A MEETING. Any action required
or permitted to be taken by the Board or by any committee of the Board may be
taken without a meeting if all of the members of the Board or of the committee
consent in writing to the adoption of a resolution authorizing the action. The
resolution and the written consents by the members of the Board or the committee
shall be filed with the minutes of the proceeding of the Board or of the
committee.
2.9 PARTICIPATION IN BOARD OR COMMITTEE MEETINGS BY CONFERENCE
TELEPHONE. Any or all members of the Board or of any committee of the Board
may participate in a meeting of the Board or of the committee by means of a
conference telephone or similar communications equipment allowing all persons
participating in the meeting to hear each other at the same time.
Participation by such means shall constitute presence in person at the
meeting.
2.10 RESIGNATION AND REMOVAL OF DIRECTORS. Any director may resign at
any time by delivering his resignation in writing to the chief executive officer
of the Corporation or secretary of the Corporation, to take effect at the time
specified in the resignation; the acceptance of a resignation, unless required
by its terms, shall not be necessary to make it effective. Any or all of the
directors may be removed, but only for cause, by vote of the stockholders at a
meeting duly called for such purpose.
2.11 VACANCIES. Any vacancy in the Board, including one created by an
increase in the number of directors, may be filled for the unexpired term by a
majority vote of the remaining directors, though less than a quorum.
2.12 COMPENSATION. Directors who are not executive officers of the
Corporation shall receive such compensation as the Board determines, together
with reimbursement of their reasonable expenses in connection with the
performance of their duties. Directors who are also executive officers of the
Corporation shall receive no additional compensation for service as directors. A
director may also be paid for serving the Corporation, its affiliates or
subsidiaries in other capacities.
3. COMMITTEES.
3.1 EXECUTIVE COMMITTEE. The Board, by resolution adopted by a
majority of the entire Board, may designate an Executive Committee of one or
more directors which shall have such powers and duties as the Board shall
determine, except as limited by section 141(c) of the Delaware General
Corporation Law or any other applicable law. The members of the Executive
Committee shall serve at the pleasure of the Board. All action of the Executive
Committee shall be reported to the Board at its next meeting.
3.2 OTHER COMMITTEES. The Board, by resolution adopted by a majority
of the entire Board, may designate other committees of one or more directors,
which shall serve at the Board's pleasure and have such powers and duties as the
Board determines, except as limited by section 141(c) of the Delaware General
Corporation Law or any other applicable law.
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3.3 COMMITTEES. The following committees are hereby created, with the
powers and duties hereinafter set forth.
(A) COMPENSATION COMMITTEE. The Compensation Committee shall be
comprised of three (3) or more directors (as set from time to time by resolution
of a majority of the entire Board). The Compensation Committee shall fix the
compensation of the chairman, the chief executive officer and such other
executive officers as it shall determine and administer any stock option, stock
appreciation or other incentive compensation programs of the Corporation.
(B) AUDIT COMMITTEE. The Audit Committee shall be comprised of
three (3) or more directors (as set from time to time by resolution of the
majority of the entire Board) who are not employees of the Corporation. The
Audit Committee shall have full corporate power and authority to act in respect
of any matter which may develop or arise in connection with any audit or the
maintenance of internal accounting controls or any other matter relating to the
Corporation's financial affairs. The Audit Committee shall review, at least once
each fiscal year, the services performed and to be performed by the
Corporation's independent public accountants and the fees charged therefor, and,
in connection therewith, consider the effect of any nonaudit services on the
independence of such accountants. The Audit Committee shall also review with the
Corporation's independent public accountants and its internal audit department
the general scope of their respective audit coverages, the procedure and
internal accounting controls adopted by the Corporation and any significant
matters encountered by any of them.
(C) NOMINATING COMMITTEE. The Nominating Committee shall be
comprised of three (3) or more directors (as set from time to time by resolution
of a majority of the entire Board). The Nominating Committee shall provide to
the Board its recommendations regarding individuals to be considered for
election as directors of the Corporation at meetings of the stockholders of the
Corporation and shall have such other powers and duties as may be determined by
the Board from time to time.
3.4 RULES APPLICABLE TO COMMITTEES. The Board, by vote of a majority
of the entire Board, may designate one or more directors as alternate members of
any committee, who may replace any absent or disqualified member at any meeting
of the committee. In the absence or disqualification of any member of a
committee, the member or members present at a meeting of the committee and not
disqualified, whether or not a quorum, may unanimously appoint another director
to act at the meeting in place of the absent or disqualified member. All action
of a committee shall be reported to the Board at its next meeting.
4. OFFICERS.
4.1 NUMBER. The executive officers of the Corporation shall be the
chairman of the board and chief executive officer, the president, one or more
vice presidents, a secretary and a treasurer. Any two or more offices may be
held by the same person.
4.2 ELECTION; TERM OF OFFICE. The executive officers of the
Corporation shall be elected annually by the Board, and each such officer shall
hold office until the next annual
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meeting of the Board, and until the election of his successor, subject to the
provisions of Section 4.4.
4.3 SUBORDINATE OFFICERS. The Board and the chief executive officer
may appoint subordinate officers (including assistant secretaries and assistant
treasurers), agents or employees, each of whom shall hold office for such period
and have such powers and duties as the Board or the chief executive officer
determines. The chief executive officer may delegate to any executive officer
the power to appoint and define the powers and duties of any subordinate
officers, agents or employees.
4.4 RESIGNATION AND REMOVAL OF OFFICERS. Any officer may resign at any
time by delivering his resignation in writing to the chief executive officer or
secretary of the Corporation, to take effect at the time specified in the
resignation; the acceptance of a resignation, unless required by its terms,
shall not be necessary to make it effective. Any officer appointed by the Board
or appointed by an executive officer or by a committee may be removed by the
Board either with or without cause, and in the case of an officer appointed by
an executive officer or by a committee, by the officer or committee who
appointed him or by the chief executive officer of the Corporation; provided,
that, the chairman and president and chief executive officer may only be removed
by a two-thirds vote of the members of the Board other than the officer proposed
to be removed (if such officer is a member of the Board).
4.5 VACANCIES. A vacancy in any office may be filled for the unexpired
term in the manner prescribed in Sections 4.2 and 4.3 of these bylaws for
election or appointment to the office.
4.6 THE CHAIRMAN. The chairman shall preside at all meetings of the
Board and of the stockholders and shall have the powers and duties commensurate
with chairmen of publicly-traded entities. The chairman shall manage the
board-level governance of the Corporation. The chairman shall work with the
chief executive officer of the Corporation to plan and develop the strategy for
the Corporation and to set goals and financial performance measures of the
Corporation. The chairman shall co-chair the Corporation's Integration Steering
Committee and the Corporation's Strategic Review Board and shall also perform
such other duties and may exercise such other powers as may from time to time be
assigned to him by the Board.
4.7 THE PRESIDENT AND CHIEF EXECUTIVE OFFICER. The president and chief
executive officer of the Corporation shall be the chief executive officer of the
Corporation and shall be responsible for the general and active management of
the business of the Corporation and for seeing that all orders and resolutions
of the Board are carried into effect. The chief executive officer's role shall
be to run the Corporation and he shall be responsible for its operating results.
He shall also be the chief external representative of the Corporation. The chief
executive officer shall have general powers of supervision over the business of
the Corporation. The officers of the Corporation shall report to the chief
executive officer and the chief executive officer shall report to the Board. The
chief executive officer shall work with the chairman to plan and develop the
strategy for the Corporation and the setting of goals and financial performance
measures. The chief executive officer shall co-chair the Corporation's
Integration Steering Committee and the Corporation's Strategic Review Board and
shall also
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perform such other duties and may exercise such other powers as may from time to
time be assigned to him by the Board.
4.8 VICE PRESIDENT. Each vice president of the Corporation shall have
such powers and duties as the chief executive officer of the Corporation assigns
to him.
4.9 THE TREASURER. The treasurer of the Corporation shall be the chief
financial officer or the Corporation and shall be in charge of the Corporation's
books and accounts. The treasurer shall also perform such other duties and may
exercise such other powers as may from time to time be assigned to him by the
chief executive officer of the Corporation.
4.10 THE SECRETARY. The secretary of the Corporation shall be the
secretary of, and keep the minutes of, all meetings of the Board and of the
stockholders, shall be responsible for giving notice of all meetings of
stockholders and of the Board, and shall keep the seal and, when authorized by
the Board, apply it to any instrument requiring it. Subject to the control of
the Board, he shall have such powers and duties as the Board or the chief
executive officer of the Corporation assigns to him. In the absence of the
secretary of the Corporation from any meeting, the minutes shall be kept by the
person appointed for that purpose by the presiding officer.
4.11 SALARIES. Subject to the provisions of Section 3.3(A) hereof, the
chief executive officer may fix the officers' salaries.
5. SHARES.
5.1 CERTIFICATES. The Corporation's shares shall be represented by
certificates in the form approved by the Board. Each certificate shall be signed
by the chief executive officer, the president or a vice president and by the
secretary or an assistant secretary, or the treasurer or an assistant treasurer,
and shall be sealed with the Corporation's seal or a facsimile of the seal. Any
or all of the signatures on the certificate may be a facsimile.
5.2 TRANSFERS. Shares shall be transferable only on the Corporation's
books, upon surrender of the certificate for the shares, properly endorsed. The
Board may require satisfactory surety before issuing a new certificate to
replace a certificate claimed to have been lost or destroyed.
5.3 DETERMINATION OF STOCKHOLDERS OF RECORD. The Board may fix, in
advance, a date as the record date for the determination of stockholders
entitled to notice of or to vote at any meeting of the stockholders, or to
express consent to or dissent from any proposal without a meeting, or to receive
payment of any dividend or the allotment of any rights, or for the purpose of
any other action. The record date may not be more than 60 or less than 10 days
before the date of the meeting or more than 60 days before any other action.
6. MISCELLANEOUS.
6.1 SEAL. The Board shall adopt a corporate seal, which shall be in
the form of a circle and shall bear the Corporation's name and the year and
state in which it was incorporated.
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6.2 FISCAL YEAR. The Board may determine the Corporation's fiscal
year. Until changed by the Board, the Corporation's fiscal year shall be the
calendar year.
6.3 VOTING OF SHARES IN OTHER CORPORATIONS. Shares in other
corporations which are held by the Corporation may be represented and voted by
the chief executive officer, the president or a vice president of this
Corporation or by proxy or proxies appointed by one of them. The Board may,
however, appoint some other person to vote the shares.
6.4 AMENDMENTS. The affirmative vote of a majority of the entire Board
shall be required to adopt, amend, alter or repeal the Corporation's Bylaws
(other than Sections 4.4, 4.6 and 4.7, which shall require the affirmative vote
of two-thirds of the entire Board). The Corporation's Bylaws also may be
adopted, amended, altered or repealed by the affirmative vote of the holders of
at least two-thirds of the voting power of the shares entitled to vote at an
election of directors, at a meeting duly called for such purpose.
* * * *
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