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EXHIBIT 2.4
INVESTOR AGREEMENT
INVESTOR 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"), Veeco Instruments Inc., a
Delaware corporation (the "COMPANY") and FEI Company, an Oregon corporation
("FLORENCE"), solely with respect to Section 2.03(c).
WHEREAS, as of the date of this Agreement, the Stockholder is the
Beneficial Owner of 8,264,821 shares (the "STOCKHOLDER FLORENCE SHARES") of
Common Stock, no par value (the "FLORENCE STOCK"), of 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, 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 shares of common stock, $0.01 par
value per share, of the Company (the "COMPANY COMMON STOCK"); and
WHEREAS, the Stockholder and the Company have entered into the Voting
Agreement, dated as of July 11, 2002 (the "VOTING AGREEMENT") and the Amendment
Agreement, dated the date hereof (the "AMENDMENT AGREEMENT"); and
WHEREAS, the Stockholder and the Company each desire to make certain
covenants and agreements concerning, among other things, the registration from
time to time of Stockholder Company Shares (as herein defined) under the
Securities Act (as herein defined).
NOW, THEREFORE, in consideration of the Stockholder's execution and
delivery to the Company of the Voting 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) "AFFILIATE," with respect to any particular Person (as defined
below), means any other Person which directly or indirectly through one or more
intermediaries controls or is controlled by or is under direct or indirect
common control
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with such Person; PROVIDED, HOWEVER, that for purposes of Article IV of this
Agreement, the Stockholder and its Affiliates, on the one hand, and the Company
and its Affiliates, on the other, shall not be deemed to be "Affiliates" of one
another.
(b) "BASE SECURITIES" means the Initial Shares, collectively with
the Option Shares and any other shares of Company Common Stock of which the
Stockholder or any of its Affiliates at any time becomes the beneficial owner.
(c) "BENEFICIAL OWNER" has the meaning set forth in Rule 13d-3
under the Securities Act and the Commission's interpretive guidance issued in
connection therewith; and each of "BENEFICIALLY OWN," "BENEFICIALLY OWNED" AND
"BENEFICIAL OWNERSHIP" has a meaning correlative to the foregoing.
(d) "BOARD APPROVAL" means the affirmative vote of a majority of
the Disinterested Directors of the Company or a unanimous written consent of the
Board of Directors of the Company duly obtained in accordance with the
applicable provisions of the Company's certificate of incorporation, bylaws and
applicable law.
(e) "CHANGE IN CONTROL OF THE COMPANY" means any of the following:
(i) a merger, consolidation or other business combination or transaction to
which the Company is a party if the stockholders of the Company immediately
prior to the effective date of such merger, consolidation or other business
combination or transaction, as a result of such share ownership, have beneficial
ownership of voting securities representing less than 50% of the Total Current
Voting Power of the surviving entity following such merger, consolidation or
other business combination or transaction; (ii) an acquisition by any person,
entity or 13D Group (other than the Stockholder, or its Affiliates, or any 13D
Group of which the Stockholder or its Affiliates is a member) of direct or
indirect beneficial ownership of Voting Stock of the Company representing 50% or
more of the Total Current Voting Power of the Company; (iii) a sale of all or
substantially all of the assets of the Company; (iv) a liquidation or
dissolution of the Company; (v) the institution of any proceeding by or against
the Company under the provisions of any insolvency or bankruptcy law, which is
not dismissed within 90 days, the appointment of a receiver of a material
portion of the assets or property of the Company or the issuance of an order for
an execution on a material portion of the property of the Company pursuant to a
judgment that is not dismissed within 90 days; or (vi) during any period of two
consecutive years, individuals who at the beginning of such period constituted
the Board of Directors of the Company (together with any new directors whose
election by such Board of Directors or whose nomination for election by the
stockholders of the Company was approved by a vote of a majority of the
directors of the Company then still in office who were either directors at the
beginning of such period or whose election or nomination for election was
previously so approved (other than a director designated by a person who has
entered into an agreement with the Company to effect a transaction described in
the preceding clauses)) cease for any reason to constitute a majority of the
Board of Directors of the Company then in office.
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(f) "COMMISSION" means the United States Securities and Exchange
Commission, or any other United States federal agency at the time administering
the Securities Act or the Exchange Act, as applicable, whichever is the relevant
statute.
(g) "CONTROL," when used with respect to any particular Person,
means the power to direct the management and policies of such Person, directly
or indirectly, whether through the ownership of voting securities, by contract
or otherwise; and the terms "CONTROLLING" and "CONTROLLED" have meanings
correlative to the foregoing.
(h) "DISINTERESTED DIRECTOR" means a member of the Board of
Directors of the Company who is not (i) an employee, former employee or
consultant of the Stockholder or any of its Affiliates; (ii) a member of the
Board of Directors of the Stockholder or any of its Affiliates; or (iii) the
holder of more than five percent of the voting stock of the Stockholder or any
of its Affiliates.
(i) "EFFECTIVE TIME" has the meaning specified in the Merger
Agreement.
(j) "EXCHANGE ACT" means the United States Securities Exchange Act
of 1934, as it may be amended from time to time, and the rules and regulations
from time to time promulgated thereunder.
(k) "FLORENCE STOCK OPTIONS" means, collectively, (i) all options
to purchase Florence Stock that were outstanding on February 21, 1997 and
exercised subsequent to September 30, 2000 (collectively, the "1997 OPTIONS"),
(ii) all options to purchase Florence Stock that were granted on September 18,
1998 in replacement of stock options outstanding on February 21, 1997, and still
outstanding on September 30, 2000 (collectively, the "1998 OPTIONS"), and (iii)
all options to purchase Florence Stock that have been or shall be granted in
replacement of, in exchange for or in substitution for the 1997 Options or the
1998 Options.
(l) "INITIAL SHARES" means the total number of shares of Company
Common Stock issued to the Stockholder upon conversion of the Stockholder
Florence Shares.
(m) "KPENV ENTITIES" means, collectively, Koninklijke Philips
Electronics N.V., a company incorporated under the laws of the Netherlands, and
each entity controlled by Koninklijke Philips Electronics N.V.
(n) "MINIMUM NUMBER" means a number of Stockholder Company Shares
equal to the quotient of (i) the Initial Shares DIVIDED BY (ii) three.
(o) "NASDAQ" means the Nasdaq Stock Market, Inc.
(p) "OPTION SHARES" means securities issuable pursuant to
Section 2.03.
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(q) "PERSON" means any corporation, association, partnership,
organization, group (as such term is used in Rule 13d-5 under the Exchange Act),
business, individual, government or political subdivision thereof, governmental
agency or other entity.
(r) "REGISTERED SHARES" means the Stockholder Company Shares
registered by the Company in any Registration for resale by the Stockholder;
PROVIDED that any Registered Share shall cease to be deemed a Registered Share
after it has been initially transferred by the Stockholder, in a public offering
or otherwise.
(s) "RIGHTS" means any and all Rights, stockholder protection
rights, stock purchase rights or "poison pill rights" issued in accordance with
the Rights Plan.
(t) "RIGHTS PLAN" means, collectively, the Rights Agreement, dated
as of March 13, 2001, between the Company and American Stock Transfer and Trust
Company, as Rights Agent, and any stockholder protection rights plan or "poison
pill" adopted by or entered into by the Company and/or its successors by way of
merger.
(u) "SECURITIES ACT" means the United States Securities Act of 1933
as it may be amended from time to time, and the rules and regulations
promulgated from time to time thereunder.
(v) "STANDSTILL LIMIT" means a number of shares of Voting Stock
equal to the sum of (i) the number of Initial Shares, PLUS (ii) the number of
Option Shares, PLUS (iii) 1% of the total number of shares of Company Common
Stock from time to time outstanding, calculated on a primary basis.
(w) "STANDSTILL PERIOD" means the period beginning upon the
execution and delivery of the Merger Agreement by the parties thereto and ending
on the occurrence of a Standstill Termination Event.
(x) "STANDSTILL TERMINATION EVENT" means the earliest to occur of
the following: (i) the termination (prior to the Effective Time) of the Merger
Agreement in accordance with its terms, (ii) a Change in Control of the Company
(other than the Merger and other than any Change in Control of the Company
involving any KPENV Entity or a 13D Group of which any KPENV Entity is a
member), (iii) the date on which the KPENV Entities cease to beneficially own at
least 7.5% of the Total Current Voting Power, and (iv) the date of the 2005
Stockholders Meeting.
(y) "STOCK OPTIONS" means, collectively, (i) the Florence Stock
Options, (ii) all options to purchase securities that have been or shall be
granted in replacement of, in exchange for, or in substitution for the Florence
Stock Options, and (iii) all options to purchase securities that have been or
shall be granted in replacement of, in exchange for, or in substitution for the
options described in Section 2.03 hereof.
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(z) "STOCKHOLDER COMPANY SHARES" means the Base Securities,
collectively with (i) the Rights associated therewith, and (ii) any securities
received as a distribution or dividend thereon.
(aa) "TOTAL CURRENT VOTING POWER" means, with respect to the
Company, at the time of determination of Total Current Voting Power, the total
number of votes that may be cast in the election of members of the board of
directors of the Company if all securities entitled to vote in the election of
such directors are present and voted.
(bb) "UNREGISTERED OFFERING" has the meaning specified in Section
3.08.
(cc) "VOTING STOCK" means shares of the Company Common Stock and any
other securities of the Company having the power to vote in the election of
members of the Board of Directors of the Company.
(dd) "WRITTEN APPROVAL" means receipt of a certificate signed by the
Chief Executive Officer of the Company setting forth a resolution adopted by a
majority of the Disinterested Directors which provides consent to the matter for
which Written Approval is required.
(ee) "13D GROUP" means any group of persons formed for the purpose
of acquiring, holding, voting or disposing of Voting Stock which would be
required under Section 13(d) of the Exchange Act, and the rules and regulations
promulgated thereunder, to file a statement on Schedule 13D pursuant to Rule
13d-1(a) of the rules and regulations promulgated under the Exchange Act or a
Schedule 13G pursuant to Rule 13d-1(c) of the rules and regulations promulgated
under the Exchange Act.
(ff) "2005 STOCKHOLDERS MEETING" means the regular scheduled annual
meeting of the stockholders of the Company to be held in 2005.
1.02 HEADINGS. The descriptive headings of the several sections and
paragraphs of this Agreement are inserted for convenience only, do not
constitute a part of this Agreement and shall not affect in any way the meaning
or interpretation of this Agreement.
1.03 ADJUSTMENTS. All references in this Agreement to percentages or
numbers of shares, including but not limited to such references in the
definition of "Standstill Limit," shall be subject to adjustment for Company
reorganizations, stock splits, stock dividends, reverse stock splits and similar
events during the term of this Agreement.
ARTICLE II
INVESTMENT IN THE COMPANY
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2.01 REPRESENTATIONS AND WARRANTY. The Company hereby represents and
warrants to the Stockholder that it has amended its current Rights Plan to
provide that the Rights shall not be exercisable as a consequence of the
beneficial ownership by the KPENV Entities of (a) the Initial Shares, (b) the
Option Shares, or (c) a number of shares of Company Common Stock in addition to
the Initial Shares and the Option Shares equal to or less than 1% of the total
number of shares of Company Common Stock from time to time outstanding,
calculated on a primary basis.
2.02 COVENANTS. The Company hereby agrees that the Rights shall not
be exercisable as a consequence of the beneficial ownership by the KPENV
Entities of (a) the Initial Shares, (b) the Option Shares, or (c) a number of
shares of Company Common Stock in addition to the Initial Shares and the Option
Shares equal to or less than 1% of the total number of shares of Company Common
Stock from time to time outstanding, calculated on a primary basis.
2.03 STOCK OPTIONS.
(a) The Company shall, at the sole option of the Stockholder,
transfer to the Stockholder, no later than 30 calendar days following the close
of the calendar quarter of the Company in which the Effective Time occurs and
against payment by the Stockholder to the Company of the aggregate par value
thereof, (i) a number of shares of Company Common Stock equal to the product of
(A) 122.22%, MULTIPLIED BY (B) the product of (I) the number of shares of
Florence Stock issued and Stock Options "cashed out" prior to the Effective Time
during such quarter upon exercise of the Stock Options, MULTIPLIED BY (II) the
Exchange Ratio, as defined in the Merger Agreement, and (ii) a number of shares
of Company Common Stock equal to the product of (A) 122.22%, MULTIPLIED BY (B)
the number of shares of Company Common Stock issued and Stock Options "cashed
out" at or after the Effective Time during such quarter upon exercise of the
Stock Options.
(b) The Company shall, at the sole option of the Stockholder,
transfer to the Stockholder, no later than 30 calendar days following the close
of each calendar quarter following the calendar quarter of the Company in which
the Effective Time occurs and against payment by the Stockholder to the Company
of the aggregate par value (if any) thereof, a number of securities equal to the
product of (i) 122.22%, MULTIPLIED BY (ii) the number of securities issued and
Stock Options "cashed out" during such quarter upon exercise of the Stock
Options.
(c) The Combination Agreement, dated November 15, 1996, between
Florence and the Stockholder is hereby amended, effective as of the Effective
Time, to delete Sections 2.1 and 5.18 therefrom. The Agreement, effective as of
December 31, 2000, among Florence, the Stockholder and Koninklijke Philips
Electronics N.V. is hereby amended, effective as of the Effective Time, to
delete Section 4 therefrom.
(d) This Section 2.03 shall not entitle the Stockholder to purchase
a number of shares of Company Common Stock greater than the product of (A) the
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difference of (I) 331,866 MINUS (II) the number of shares of Florence Stock
issued after the date hereof and prior to the Effective Time pursuant to
Sections 2.1 and 5.18 of the Combination Agreement referred to in Section
2.03(c) and/or Section 4 of the Agreement referred to in the last sentence of
Section 2.03(c), MULTIPLIED BY (B) the Exchange Ratio (as defined in the Merger
Agreement). For all purposes of this Section 2.03, "cashed out" means cancelled
in exchange for a cash payment.
2.04 BOARD REPRESENTATION. For the period of time beginning on the
first calendar day following the Effective Time (the "DIRECTOR DATE") and
terminating on the earlier of (i) the first date on which the KPENV Entities
cease to beneficially own at least 7.5% of the Total Current Voting Power, and
(ii) the date of the 2005 Stockholders Meeting (such period, the "DIRECTOR
PERIOD"), the Stockholder shall be entitled to request that the Company include,
as a nominee or designee of the Company's board of directors recommended by said
board of directors, one person designated by the Stockholder and reasonably
satisfactory to the Company's board of directors (any such person, a
"STOCKHOLDER NOMINEE"). At, or as promptly as practicable after (but in no event
prior to), the Director Date, the Company shall cause one Stockholder Nominee to
be elected or appointed as a director of the Company to serve in Class II for a
term expiring at the 2005 Stockholders Meeting. During the Director Period, (i)
promptly following the death, incapacity, resignation or removal from the
Company's board of directors of any Stockholder Nominee, the Company shall cause
another Stockholder Nominee to be elected or appointed as a director to fill the
vacancy thereby created, and (ii) the Company shall take all such actions as may
be reasonably necessary to ensure that one director of the Company is a
Stockholder Nominee. Following the Director Period, (i) the Company may request
that the Stockholder Nominee then on the Company's board of directors resign as
a director of the Company, and (ii) promptly following the Stockholder's receipt
of such a request, the Stockholder shall cause such Stockholder Nominee to
resign immediately and relinquish all rights and privileges as a member of the
Company's board of directors.
ARTICLE III
AGREEMENTS IN RESPECT OF THE STOCKHOLDER COMPANY SHARES
3.01 DEMAND REGISTRATIONS.
(a) At any time following the Effective Time, to and including the
date on which the Stockholder shall have received a written opinion of legal
counsel reasonably satisfactory to the Stockholder and the Company and addressed
to the Company and the Stockholder stating that the Stockholder Company Shares
may be publicly offered for sale in the United States by the Stockholder without
restriction as to manner of sale and amount of securities sold and without
registration under the Securities Act (such period, the "DEMAND PERIOD"), the
Stockholder shall have the right on two occasions to require the Company to file
a registration statement under the Securities Act
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in respect of all or a portion of the Stockholder Company Shares held by it. As
promptly as practicable, but in no event later than 60 days after the Company
receives a written request from the Stockholder demanding that the Company so
register the number of Stockholder Company Shares specified in such request,
which number shall not be less than the Minimum Number, the Company shall file
with the Commission and thereafter use its reasonable best efforts to cause to
be declared effective promptly a registration statement (a "DEMAND
REGISTRATION") providing for the registration of such number of Stockholder
Company Shares as the Stockholder shall have demanded be registered.
(b) Anything in this Agreement to the contrary notwithstanding, the
Company shall not be required to file or otherwise effect any Demand
Registration during the period between the 16th day of each of March, June,
September and December and 48 hours following public release by the Company (by
means of a press release, 10-Q filing or other public announcement) of its
earnings for the quarter in which such 16th day occurs. In addition, anything in
this Agreement to the contrary notwithstanding, the Company shall be entitled to
postpone and delay the filing or effectiveness of a Demand Registration and,
following the effectiveness of any Demand Registration, may suspend the
performance of its obligations under Section 3.04 with respect to such Demand
Registration (the "SECTION 3.04 OBLIGATIONS"), in any such case for a reasonable
period of time (each, a "BLACKOUT PERIOD"), if at any time that the Company
shall determine that any such filing or the offering of any Registered Shares
would, in the good faith judgment of the Board of Directors of the Company,
require disclosure of (to the extent such a transaction has not been previously
publicly disclosed), impede, delay or otherwise interfere with any pending or
contemplated securities offering, sale, financing, acquisition, corporate
reorganization or other similar transaction involving the Company, at any time
that the Company shall determine that any such filing or the offering of any
Registered Shares would, in the good faith judgment of the Board of Directors of
the Company, after receipt of advice from the Company's investment bank or
outside financial advisor, adversely affect any pending or contemplated offering
or sale of any class of securities by the Company, or at any time that the
Company shall determine that any such filing or the offering of any Registered
Shares would, in the good faith judgment of the Board of Directors of the
Company, after receipt of advice from the Company's outside legal counsel,
require disclosure of material nonpublic information (other than information
relating to an event described in clause (ii) or (iii) of this sentence) which,
if disclosed at such time, would be materially harmful to the interests of the
Company and its stockholders; PROVIDED that in the case of a Blackout Period
pursuant to clause (i) or (ii) above, the Blackout Period shall earlier
terminate upon the completion or abandonment of the relevant securities offering
or sale, financing, acquisition, corporate reorganization or other similar
transaction; and PROVIDED, FURTHER, that in the case of a Blackout Period
pursuant to clause (iii) above, the Blackout Period shall earlier terminate upon
public disclosure by the Company or public admission by the Company of such
material nonpublic information or such time as such material nonpublic
information shall be publicly disclosed without breach of the last sentence of
this subsection (b); and PROVIDED, FURTHER, that in the case of any Blackout
Period, the Company shall furnish to the Stockholder a certificate of the
Secretary of the Company
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stating that an event permitting a Blackout Period has occurred and attaching a
certified copy of a resolution of the Board of Directors of the Company to such
effect. Notwithstanding anything herein to the contrary, the Company shall not
postpone or delay the filing or effectiveness of any Demand Registration and
shall not suspend the performance of the Section 3.04 Obligations pursuant to
the second sentence of this Section 3.01(b) for an aggregate of more than 30
days in the case of the first Demand Registration to which the Stockholder is
entitled or for an aggregate of more than 90 days in the case of the second
Demand Registration to which the Stockholder is entitled. Upon notice by the
Company to the Stockholder of any such determination, the Stockholder covenants
that it shall keep the fact of any such notice strictly confidential, and
promptly halt any offer, sale, trading or transfer by it or any of its
Affiliates of any Registered Shares for the duration of the Blackout Period set
forth in such notice (or until such Blackout Period shall be earlier terminated
in writing by the Company) and promptly halt any use, publication, dissemination
or distribution of the Demand Registration, each prospectus included therein,
and any amendment or supplement thereto by it and any of its Affiliates for the
duration of the Blackout Period set forth in such notice (or until such Blackout
Period shall be earlier terminated in writing by the Company). After the
expiration of any Blackout Period and without further request from the
Stockholder, the Company shall effect the filing of the relevant Demand
Registration (if not already filed) and shall use its reasonable best efforts to
cause any such Demand Registration to be declared effective (if not already
effective) as promptly as practicable unless the Stockholder shall have, prior
to the effective date of such Demand Registration, withdrawn in writing its
initial request.
(c) Any request by the Stockholder for a Demand Registration which
is subsequently withdrawn prior to the related registration statement becoming
effective shall not constitute a Demand Registration for purposes of determining
the number of Demand Registrations to which the Stockholder is entitled if the
out-of-pocket expenses incurred by the Company through the date of such request
in connection with such registration statement are reimbursed.
3.02 PIGGY-BACK REGISTRATIONS.
(a) If, at any time following the Effective Time, the Company
proposes to register any shares of the Company Common Stock under the Securities
Act on a registration statement on Form S-1, Form S-2 or Form S-3 (or any
equivalent general registration form then in effect) for purposes of a primary
offering, secondary offering or combined offering of the Company Common Stock,
the Company shall, at least 14 days prior to the date when any such registration
statement is filed with the Commission, give prompt written notice to the
Stockholder of its intention to do so. Such notice shall specify, at a minimum,
the number of shares of the Company Common Stock so proposed to be registered,
the proposed date of filing of such registration statement, any proposed means
of distribution of such shares, any proposed managing underwriter or
underwriters of such shares and a good faith estimate by the Company of the
proposed maximum offering price thereof, as such price is proposed to appear on
the
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facing page of such registration statement. Upon the written direction of the
Stockholder, given within seven days following the receipt by the Stockholder of
any such written notice (which direction shall specify the number of Stockholder
Company Shares intended to be disposed of by the Stockholder), the Company shall
include in such registration statement (a "PIGGY-BACK REGISTRATION" and,
collectively with a Demand Registration, a "REGISTRATION"), subject to the
provisions of this Section 3.02, such number of Stockholder Company Shares as
shall be set forth in such notice.
(b) In the event that the Company proposes to register shares of
the Company Common Stock in connection with an underwritten offering and any
managing underwriter thereof reasonably and in good faith shall have advised the
Company, any holder of shares of the Company Common Stock intending to offer
such shares in a secondary offering or combined offering (each, an "OTHER
HOLDER") and the Stockholder in writing that, in its opinion, including in the
registration statement some or all of the Stockholder Company Shares sought to
be registered by the Stockholder is reasonably likely to adversely affect the
price per share that the Company or any Other Holder will derive from such
registration or that the number of shares sought to be registered (including any
shares sought to be registered at the request of the Company and any Other
Holder and those sought to be registered by the Stockholder) is a greater number
of shares than can reasonably be sold, the Company shall include in such
registration statement such number of shares as the Company, any Other Holder
and the Stockholder are so advised can be sold in such offering without such an
effect (the "MAXIMUM NUMBER"), as follows and in the following order of
priority: FIRST, such number of shares as the Company intended to be registered
and sold by the Company, and (ii) SECOND, in the case of a secondary offering or
a combined offering and if and to the extent that the number of shares to be
registered under clause (i) is less than the Maximum Number, such number of
shares as the Stockholder and any Other Holder shall have intended to register
which, when added to the number of shares to be registered under clause (i), is
less than or equal to the Maximum Number; PROVIDED that if such number exceeds
the Maximum Number, the shares of the Stockholder and such Other Holders will be
excluded on a PRO RATA basis. No securities (issued or unissued) other than
those registered and included in the underwritten offering shall be offered for
sale or other disposition by the holders of Stockholder Company Shares in a
transaction which would require registration under the Securities Act until the
expiration of 180 days after the effective date of the registration statement in
which the Registered Shares were included.
(c) No Piggy-Back Registration effected under this Section 3.02
shall be deemed to have been effected pursuant to Section 3.01 hereof or shall
release the Company of its obligations to effect any Demand Registration upon
request as provided under Section 3.01 hereof.
3.03 ADDITIONAL AGREEMENT. Anything in this Agreement to the
contrary notwithstanding, following the expiration of the Demand Period, the
Company shall no longer be obligated to file or maintain a registration
statement with respect to the Stockholder Company Shares pursuant to this
Agreement.
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3.04 REGISTRATION PROCEDURES.
(a) In connection with each Registration, and in accordance with
the intended method or methods of distribution of the Registered Shares as
described in such Registration, the Company shall, as soon as reasonably
practicable (and, in any event, subject to the terms of this Agreement,
including, without limitation, Section 3.01(a), at or before the time required
by applicable laws and regulations):
(i) prepare and file with the Commission as provided herein a
registration statement with respect to such Registered Shares on a registration
form appropriate for such registration and use its reasonable best efforts to
cause such registration statement to become effective promptly; PROVIDED that
before filing a registration statement or prospectus or any amendments or
supplements thereto, the Company will furnish to the Stockholder and the
managing underwriter or underwriters (if the Demand Registration pertains to an
underwritten offering) draft copies of all such documents proposed to be filed
at least three days prior to such filing, which documents will be subject to the
reasonable review of the Stockholder, the managing underwriter or underwriters
(if the Demand Registration pertains to an underwritten offering), and their
respective agents and representatives. In the event that the Company proposes to
include in any Registration information concerning or relating to the
Stockholder to which the Stockholder shall reasonably object, the Company and
the Stockholder shall cause their respective senior executives to discuss the
Stockholder's objection and to negotiate in good faith an appropriate resolution
of such objection. The Company shall not be deemed to be in breach of the second
sentence of Section 3.01(a) as the result of the parties' failure to conclude
such discussions during the 60 day period referred to therein.
(ii) upon request by the Stockholder, furnish without charge
to the Stockholder and the managing underwriter or underwriters, if any,
thereof, a reasonable number of copies of the Registration and each amendment
and supplement thereto (in each case including all exhibits thereto), each
prospectus included in such Registration (including each preliminary prospectus)
and any amendments or supplements thereto and any documents incorporated therein
by reference;
(iii) use its reasonable best efforts to keep such Registration
effective for at least 90 days (the "EFFECTIVE PERIOD"); prepare and file with
the Commission such amendments, post-effective amendments and supplements to the
Registration and the prospectus as may be necessary to maintain the
effectiveness of the Registration for the Effective Period and to cause the
prospectus (and any amendments or supplements thereto) to be filed pursuant to
Rules 424 and 430A under the Securities Act and/or any successor rules that may
be adopted by the Commission, as such rules may be amended from time to time;
and comply with the provisions of the Securities Act with respect to the
disposition of all Registered Shares covered by such Registration during the
applicable period in accordance with the intended method or methods of
distribution thereof, as specified in writing by the Stockholder;
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(iv) make available for inspection by the Stockholder or by
any underwriter, attorney, accountant or other agent retained by the Stockholder
(collectively, the "INSPECTORS"), upon reasonable request during normal business
hours, financial and other records and pertinent corporate documents of the
Company, provide the Inspectors with opportunities to discuss the business of
the Company with its officers, and provide opportunities to discuss the business
of the Company with the independent public accountants who have certified its
most recent annual financial statements, in each case to the extent but only to
the extent reasonably necessary to enable the Stockholder or any underwriter
retained by the Stockholder to conduct a "reasonable investigation" for purposes
of Section 11(a) of the Securities Act. The Stockholder agrees, and the
Stockholder shall cause each Inspector to agree, that records that the Company
determines, in good faith, to be confidential and that it notifies the
Inspectors are confidential shall not be disclosed by the Stockholder or any
Inspector, or used by the Stockholder or an Inspector for a purpose other than
as described in the preceding sentence unless (1) the disclosure of such records
is necessary to avoid or correct a misstatement of a material fact or omission
to state a material fact in the Registration, (2) the disclosure of such records
is required by any court or governmental body with jurisdiction over the
Stockholder or such Inspector, or (3) all of the information contained in such
records has been made generally available to the public without any fault on the
part of the Inspector. The Stockholder agrees that it will, upon learning that
disclosure of such records is sought in a court of competent jurisdiction or by
any governmental body, promptly give prior notice to the Company and allow the
Company, at its expense, to undertake appropriate action (and the Stockholder
shall cooperate with and assist the Company as requested in taking such action)
to prevent disclosure of those records deemed confidential;
(v) promptly notify the Stockholder and the managing
underwriter or underwriters, if any, thereof, after becoming aware thereof, (1)
when the Registration or any related prospectus or any amendment or supplement
has been filed, and, with respect to the Registration or any post-effective
amendment, when the same has become effective, (2) of any request by the
Commission for amendments or supplements to the Registration or the related
prospectus or for additional information, (3) of the issuance by the Commission
of any stop order suspending the effectiveness of the Registration or the
initiation of any proceedings for that purpose, (4) of the receipt by the
Company of any notification with respect to the suspension of the qualification
of the Registered Shares for sale in any jurisdiction or the initiation of any
proceeding for such purpose, or after becoming aware thereof, within the
Effective Period, of the happening of any event which makes any statement in the
Registration or any post-effective amendment thereto, prospectus or any
amendment or supplement thereto, or any document incorporated therein by
reference untrue in any material respect or which requires the making of any
changes in the Registration or post-effective amendment thereto or prospectus or
amendment or supplement thereto so that they will not contain any untrue
statement of a material fact or omit to state any material fact required to be
stated therein or necessary to make the statements therein (in the case of any
prospectus, in the light of the circumstances under which they were made) not
misleading;
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(vi) during the Effective Period, use its reasonable best
efforts to obtain the withdrawal of any order suspending the effectiveness of
the Registration or any post-effective amendment thereto;
(vii) use its reasonable best efforts to register or qualify
the Registered Shares for offer and sale under such securities or "blue sky"
laws of such states or other U.S. jurisdictions as the Stockholder and the
managing underwriter or underwriters, if any, thereof shall reasonably request
in writing; PROVIDED that the Company shall not be required for any such purpose
to (1) qualify as a foreign corporation in any jurisdiction where it would not
otherwise be required to qualify but for the requirements of this Section
3.04(a)(vii), or (2) consent to general service of process in any such
jurisdiction;
(viii) use its reasonable best efforts to cause the Registered
Shares to be registered with or approved by such other governmental agencies or
authorities within the United States as may be necessary by virtue of the
markets on which the Registered Shares are listed or quoted to enable the
Stockholder to consummate the disposition of such Registered Shares;
(ix) cooperate with the Stockholder and the managing
underwriter or underwriters, if any, to facilitate the timely preparation and
delivery of certificates representing such Registered Shares to be sold, which
certificates shall not bear any restrictive legends except as required by law;
and enable such Registered Shares to be in such denominations and registered in
such names as the managing underwriter or underwriters may request in writing at
least two business days prior to any sale of the Registered Shares to the
underwriters;
(x) enter into such agreements (including, if the offering is
an underwritten offering, an underwriting agreement) containing such provisions
as are customary in transactions of such kind and are not materially
inconsistent with the terms of this Agreement, and take such other actions as
are reasonably necessary in connection therewith in order to expedite or
facilitate the disposition of such Registered Shares; and (1) obtain an opinion
or opinions of legal counsel to the Company (which counsel may be internal
counsel for the Company unless the managing underwriter or underwriters shall
otherwise reasonably request) in customary form and covering matters of the type
customarily covered by such opinions, addressed to such managing underwriter or
underwriters, if any, and to the Stockholder and dated the date of the closing
of the sale of the Registered Shares relating thereto; and (2) obtain a
"comfort" letter or letters from the independent certified public accountants
who have certified the Company's most recent audited financial statements that
are incorporated by reference in the Registration which is addressed to the
Stockholder and the managing underwriter or underwriters, if any, and is dated
the date of the prospectus used in connection with the offering of such
Registered Shares and/or the date of the closing of the sale of such Registered
Shares relating thereto, such letter or letters to be in customary form and
covering such matters of the type customarily covered by "comfort" letters of
such type;
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(xi) comply with all applicable rules and regulations of the
Commission and make available to its security holders an earnings statement, as
soon as reasonably practicable but in no event later than 18 months after the
effective date of the registration statement, which earnings statement shall
cover a period of at least 12 months, beginning with the first full calendar
month after the effective date of such registration statement and shall satisfy
the provisions of Section 11(a) of the Securities Act and may be prepared in
accordance with Rule 158 under the Securities Act; and
(xii) take all other steps reasonably necessary to effect the
registration, offering and sale of the Registered Shares covered by a
registration statement contemplated hereby and enter into any other customary
agreements and take such other actions (including making appropriate "Section
16" executives of the Company available for participation in "roadshows") as are
reasonably required in order to expedite or facilitate the disposition of such
Registered Shares.
(b) In the event that the Company would be required, pursuant to
Section 3.04(a)(v)(5), to notify the Stockholder and the managing underwriter or
underwriters, if any, thereof, the Company shall, subject to the provisions of
Section 3.01(b) hereof, as promptly as practicable, prepare and furnish to the
Stockholder and such managing underwriter or underwriters a reasonable number of
copies of a prospectus supplemented or amended so that, as thereafter delivered
to purchasers of Registered Shares, such prospectus shall not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein, in the light of the
circumstances under which they were made, not misleading. The Stockholder agrees
that, upon receipt of any notice from the Company pursuant to Section
3.04(a)(v)(5), the Stockholder shall, and shall use its reasonable best efforts
to cause, any sales or placement agent or agents for the Registered Shares and
the underwriters, if any, thereof, to forthwith discontinue disposition of
Registered Shares until such Person shall have received copies of such amended
or supplemented prospectus and, if so directed by the Company, to destroy or to
deliver to the Company all copies, other than permanent file copies, then in its
possession of the prospectus (prior to such amendment or supplement) covering
such Registered Shares as soon as practicable after the Stockholder's receipt of
such notice.
(c) It shall be a condition to the obligations of the Company to
take any action pursuant to Sections 3.01 and 3.02 that the Stockholder shall
furnish, at least five days prior to the effectiveness of the registration
statement, to the Company in writing such information regarding the Stockholder,
the Registered Shares and the Stockholder's intended method of distribution of
the Registered Shares as the Company may from time to time reasonably request in
writing. The Stockholder shall notify the Company as promptly as practicable of
any inaccuracy or change in information previously furnished by the Stockholder
to the Company or of the occurrence of any event, in either case as a result of
which any prospectus relating to the Registered Shares contains or would contain
an untrue statement of a material fact regarding the Stockholder or its intended
method of distribution of such Registered Shares or omits to
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state any material fact regarding the Stockholder or its intended method of
distribution of such Registered Shares required to be stated therein or
necessary to make the statements therein, in the light of the circumstances
under which they were made, not misleading, and promptly furnish to the Company
any additional information required to correct and update any previously
furnished information or required so that such prospectus shall not contain,
with respect to the Stockholder or the distribution of the Registered Shares, an
untrue statement of a material fact or omit to state a material fact required to
be stated therein or necessary to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
3.05 REGISTRATION EXPENSES. Except as set forth in the last
sentence of this Section 3.05, the Company agrees to bear and to pay, or cause
to be paid, promptly upon request being made therefor all expenses incident to
the Company's performance of or compliance with this Agreement, including,
without limitation: (a) all Commission and any National Association of
Securities Dealers registration and filing fees and expenses, (b) all fees and
expenses in connection with the qualification of the Registered Shares for
offering and sale under state securities or "blue sky" laws referred to in
Section 3.04(a)(vi) hereof, including reasonable fees and disbursements of
counsel for any underwriter in connection with such qualifications, (c) all
expenses relating to the preparation, printing, distribution and reproduction of
the Registration, each prospectus included therein or prepared for distribution
pursuant hereto, each amendment or supplement to the foregoing, the certificates
representing the Registered Shares and all other documents relating hereto, (d)
internal expenses (including, without limitation, all salaries and expenses of
the Company's officers and employees performing legal or accounting duties), (e)
fees, disbursements and expenses of the Company's counsel and its other advisors
and experts and independent certified public accountants of the Company
(including the expenses of any opinions or "comfort" letters required by or
incident to such performance and compliance), and (f) the fees and expenses
incurred in connection with the quotation of the Registered Shares on Nasdaq and
any stock exchange on which the Company Common Stock shall at such time be
listed or quoted (collectively, the "REGISTRATION EXPENSES"). To the extent that
any Registration Expenses are incurred, assumed or paid by the Stockholder and
the underwriters, if any, thereof, the Company shall reimburse such Person for
the full amount of the Registration Expenses so incurred, assumed or paid
promptly after receipt of a request therefor. Notwithstanding the foregoing, the
Stockholder shall pay or cause to be paid, as appropriate, (i) all agency fees
and commissions and underwriting discounts and commissions directly attributable
to the sale of the Registered Shares by or on behalf of the Stockholder, and
(ii) the fees, disbursements and expenses of its counsel in connection with the
offering and sale of the Registered Shares.
3.06 INDEMNIFICATION; CONTRIBUTION.
(a) INDEMNIFICATION BY THE COMPANY. The Company shall, and it
hereby agrees to, indemnify and hold harmless the Stockholder, and each Person
who participates as a placement or sales agent or as an underwriter in any
offering or sale of
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the Registered Shares, against any losses, claims, damages or liabilities to
which the Stockholder or such agent or underwriter may become subject, insofar
as such losses, claims, damages or liabilities (or actions or proceedings in
respect thereof) arise out of or are based upon an untrue statement or alleged
untrue statement of a material fact contained in any Registration, or any
preliminary or final prospectus contained therein, or any amendment or
supplement thereto, or any document incorporated by reference therein, or arise
out of or are based upon any omission or alleged omission to state therein a
material fact required to be stated therein or necessary to make the statements
therein not misleading, and the Company shall, and it hereby agrees to,
reimburse the Stockholder or any such agent or underwriter for any legal or
other out-of-pocket expenses reasonably incurred by them in connection with
investigating or defending any such action, proceeding or claim; PROVIDED that
the Company shall not be liable to any such Person in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such Registration, or preliminary or final prospectus,
or amendment or supplement thereto, in reliance upon and in conformity with
written information furnished to the Company by the Stockholder or any agent,
underwriter or representative of the Stockholder expressly for use therein, or
by the Stockholder's failure to furnish the Company, upon request, with the
information with respect to the Stockholder, or any agent, underwriter or
representative of the Stockholder, or the Stockholder's intended method of
distribution, that is the subject of the untrue statement or omission. The
foregoing indemnity is subject to the condition that, insofar as it relates to
any such untrue statement, alleged untrue statement, omission or alleged
omission made in a preliminary prospectus on file with the Commission at the
time the registration statement becomes effective or the amended prospectus
filed with the Commission pursuant to Rule 424(b), as amended from time to time
(the "FINAL PROSPECTUS"), such indemnity shall not inure to the benefit of (i)
the Stockholder if a copy of the Final Prospectus was not furnished by the
Stockholder to the person asserting the loss, liability, claim or damage at or
prior to the time such action as required by the Securities Act and such Final
Prospectus would have cured the defect giving rise to the loss, liability, claim
or damage, or (ii) any underwriter or agent if a copy of the Final Prospectus
was not furnished to the person asserting the loss, liability, claim or damage
at or prior to the time such action as required by the Securities Act and the
Final Prospectus would have cured the defect giving rise to the loss, liability,
claim or damage.
(b) INDEMNIFICATION BY THE STOCKHOLDER. The Stockholder shall, and
it hereby agrees to, indemnify and hold harmless the Company against any losses,
claims, damages or liabilities to which the Company may become subject, insofar
as such losses, claims, damages or liabilities (including any amounts paid in
settlement as provided herein), or actions or proceedings in respect thereof,
arise out of or are based upon an untrue statement or alleged untrue statement
of a material fact contained in such Registration, or any preliminary or final
prospectus contained therein, or any amendment or supplement thereto, or any
document incorporated by reference therein, or arise out of or are based upon
any omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading,
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in each case only to the extent that such untrue statement or alleged untrue
statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by the Stockholder
expressly for use therein.
(c) INDEMNIFICATION BY THE UNDERWRITER(S). The Company may require,
as a condition to entering into any underwriting agreement, that such
underwriting agreement provide in substance that the underwriters named in such
underwriting agreement shall, severally and not jointly, indemnify and hold
harmless the Company against any losses, claims, damages or liabilities to which
the Company may become subject, insofar as such losses, claims, damages or
liabilities (including any amounts paid in settlement as provided herein), or
actions or proceedings in respect thereof, arise out of or are based upon an
untrue statement or alleged untrue statement of a material fact contained in
such Registration, or any preliminary or final prospectus contained therein, or
any amendment or supplement thereto, or any document incorporated by reference
therein, or arise out of or are based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, in each case only to the extent that such
untrue statement or alleged untrue statement or omission or alleged omission was
made in reliance upon and in conformity with written information furnished to
the Company by such underwriter or underwriters expressly for use therein.
(d) NOTICE OF CLAIMS, ETC. Promptly after receipt by an indemnified
party under subsection (a) or (b) above of written notice of the commencement of
any action or proceeding for which indemnification under subsection (a) or (b)
may be requested, such indemnified party shall, without regard to whether a
claim in respect thereof is to be made against an indemnifying party pursuant to
the indemnification provisions of, or as contemplated by, this Section 3.06,
notify such indemnifying party in writing of the commencement of such action or
proceeding; but the omission so to notify the indemnifying party shall not
relieve it from any liability which it may have to any indemnified party in
respect of such action or proceeding on account of the indemnification
provisions of or contemplated by Section 3.06(a) or 3.06(b) hereof unless the
indemnifying party was materially prejudiced by such failure of the indemnified
party to give such notice, and in no event shall such omission relieve the
indemnifying party from any other liability it may have to such indemnified
party. In case any such action or proceeding shall be brought against any
indemnified party and it shall notify an indemnifying party of the commencement
thereof, such indemnifying party shall be entitled to participate therein and,
to the extent that it shall determine, jointly with any other indemnifying party
similarly notified, to assume the defense thereof, with counsel reasonably
satisfactory to such indemnified party, and, after notice from the indemnifying
party to such indemnified party of its election so to assume the defense
thereof, such indemnifying party shall not be liable to such indemnified party
for any legal or any other expenses subsequently incurred by such indemnified
party, in connection with the defense thereof other than reasonable costs of
investigation (unless such indemnified party reasonably objects to such
assumption on the grounds that there may be defenses available to it which are
different from or in addition to the defenses available to such
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indemnifying party, in which event the indemnified party shall have the right to
control its defense and shall be reimbursed by the indemnifying party for the
expenses incurred in connection with retaining separate counsel). If the
indemnifying party is not entitled to, or elects not to, assume the defense of a
claim, it will not be obligated to pay the fees and expenses of more than one
counsel for each indemnified party with respect to such claim. The indemnifying
party will not be subject to any liability for any settlement made without its
consent, which consent shall not be unreasonably withheld or delayed. No
indemnifying party will consent to entry of any judgment or enter into any
settlement agreement which does not include as an unconditional term thereof the
giving by the claimant or plaintiff to such indemnified party of a release from
all liability in respect of such claim or litigation.
(e) CONTRIBUTION. The Stockholder and the Company agree that if,
for any reason, the indemnification provisions contemplated by Section 3.06(a)
or 3.06(b) hereof are unavailable to or are insufficient to hold harmless an
indemnified party in respect of any losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) referred to therein, then each
indemnifying party shall contribute to the amount paid or payable by such
indemnified party as a result of such losses, claims, damages or liabilities (or
actions or proceedings in respect thereof) in such proportion as is appropriate
to reflect the relative fault of, and benefits derived by, the indemnifying
party and the indemnified party, as well as any other relevant equitable
considerations. The relative fault of such indemnifying party and indemnified
party shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or omission or alleged
omission to state a material fact relates to information supplied by such
indemnifying party or by such indemnified party, and the parties' relative
intent, knowledge, access to information and opportunity to correct or prevent
such statement or omission. The parties hereto agree that it would not be just
and equitable if contribution pursuant to this Section 3.06(e) were determined
(i) by PRO RATA allocation; or (ii) by any other method of allocation which does
not take account of the equitable considerations referred to in this Section
3.06(e). The amount paid or payable by an indemnified party as a result of the
losses, claims, damages or liabilities (or actions or proceedings in respect
thereof) referred to above shall be deemed to include (subject to the
limitations set forth in Section 3.06(d) hereof) any legal or other fees or
expenses reasonably incurred by such indemnified party in connection with
investigating or defending any such action, proceeding or claim. No Person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of
the Securities Act) shall be entitled to contribution from any Person who was
not guilty of such fraudulent misrepresentation with respect to an issue for
which contribution has been requested.
(f) BENEFICIARIES OF INDEMNIFICATION. The obligations of the
Company under this Section 3.06 shall be in addition to any liability that it
may otherwise have and shall extend, upon the same terms and conditions, to each
officer, director, partner and any other Affiliate of the Stockholder and each
agent and underwriter of the Registered Shares and each Person, if any, who
controls the Stockholder or any such agent or underwriter within the meaning of
the Securities Act, each of whom is an intended third
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party beneficiary of the covenants set forth in this Section 3.06; and the
obligations of the Stockholder and any agents or underwriters contemplated by
this Section 3.06 shall be in addition to any liability that the Stockholder or
its respective agent or underwriter may otherwise have and shall extend, upon
the same terms and conditions, to each officer and director and Affiliate of the
Company (including any Person who, with his consent, is named in any
registration statement as about to become a director of the Company) and to each
Person, if any, who controls the Company within the meaning of the Securities
Act, each of whom is an intended third party beneficiary of the covenants set
forth in this Section 3.06. The indemnity, contribution and expense
reimbursement obligations set forth in this Section 3.06 shall remain operative
and in full force and effect regardless of any investigation made by or on
behalf of any indemnified party.
(g) UNDERWRITING AGREEMENT CONTROLS. In the event of any conflict
between the indemnification and contribution terms as herein set forth and as
set forth in any underwriting agreement entered into pursuant hereto, the
underwriting agreement shall control.
3.07 UNDERWRITERS.
(a) If any of the Registered Shares are to be sold pursuant to an
underwritten offering, the investment banker or bankers and the managing
underwriter or underwriters thereof shall be selected by the Company except in
the case of a Demand Registration, in which case the managing underwriter or
underwriters shall be selected by the Stockholder from a group of not fewer than
three investment banks of recognized international standing designated by the
Company.
(b) At the request of the managing underwriter or underwriters in
connection with any underwritten offering in which Registered Shares are to be
offered, the Stockholder shall enter into a customary "lock-up" agreement
pursuant to which it will agree to not effect any sale or distribution of
Registered Shares for a period of no more than 180 days beginning on the
effective date of any such registration (except as part of such registration).
3.08 UNREGISTERED OFFERINGS. The Stockholder and the Company hereby
agree that, in the event that the Company or one or more of its stockholders
(including the Stockholder) proposes to make an underwritten offering of Company
Common Stock (a) that is exempt from, or not subject to, the registration
requirements of the Securities Act by virtue of Regulation S thereunder, and (b)
with respect to which such stockholder(s) requests the cooperation and
participation of the Company or the management of the Company in performing due
diligence and marketing such offering to potential investors (such an offering,
an "UNREGISTERED OFFERING"), the relevant notice provisions of Section 3.01 or
3.02 will apply and the required notice will state that the offering is proposed
to be made pursuant to Regulation S. In that event, the parties agree to proceed
with such an offering on an unregistered basis in good faith as and to the
extent provided herein with respect to a registered offering and that the
provisions of this
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Agreement will apply MUTATIS MUTANDIS to such Unregistered Offering, including,
without limitation, provisions relating to Blackout Periods, Piggy-Back
Registrations, allocations of securities included in an offering, the Company's
obligations with respect to an offering (including indemnification provisions
and procedures), selection of underwriters, expenses associated with an offering
and indemnification and contribution. An Unregistered Offering in which the only
securities being sold are the Stockholder Company Shares shall be deemed to
constitute one Demand Registration.
3.09 AGREEMENT OF THE STOCKHOLDER. The Stockholder agrees not to,
and it shall cause its Affiliates not to, make any sale, transfer or other
disposition of shares of the Company Common Stock except in compliance with the
registration requirements of the Securities Act and the rules and regulations
thereunder or in accordance with the terms of this Agreement.
3.10 LEGENDS.
(a) Stop transfer restrictions will be given to the Company's
transfer agent(s) with respect to the Stockholder Company Shares and there will
be placed on the certificates or instruments representing the Stockholder
Company Shares, and on any certificate or instrument delivered in substitution
therefor, legends stating in substance:
THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE UNITED STATES SECURITIES ACT OF 1933,
AS AMENDED (THE "SECURITIES ACT"), AND MAY NOT BE SOLD,
PLEDGED OR OTHERWISE TRANSFERRED EXCEPT PURSUANT TO SUCH
REGISTRATION OR IN ACCORDANCE WITH AN EXEMPTION FROM THE
REGISTRATION REQUIREMENTS OF THE SECURITIES ACT.
THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO
CERTAIN STANDSTILL AND OTHER RESTRICTIONS SET FORTH IN AN
INVESTOR AGREEMENT, DATED JULY 11, 2002 BETWEEN THE HOLDER
OF THE SHARES AND THE COMPANY. A COPY OF SUCH AGREEMENT MAY
BE OBTAINED UPON WRITTEN REQUEST TO THE SECRETARY OF THE
COMPANY.
(b) The Company hereby agrees that it will cause stop transfer
restrictions to be released with respect to any Stockholder Company Shares that
are transferred pursuant to an effective registration statement under the
Securities Act, pursuant to Rule 144 or 145 under the Securities Act, in
accordance with the requirements of Rule 903 or 904 of Regulation S under the
Securities Act, or pursuant to another exemption from the registration
requirements of the Securities Act
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and, in any such case, otherwise in accordance with this Agreement; PROVIDED
that in the case of any transfer pursuant to clause (ii) or (iii) above, the
request for transfer is accompanied by a written statement signed by the
Stockholder and, if the Company so requests, a written opinion of counsel in
customary form, confirming compliance with the requirements of the relevant
exemption from registration; and PROVIDED, FURTHER, that in the case of any
transfer pursuant to clauses (ii), (iii) or (iv) above, other than any transfer
by the Stockholder to one or more of its Affiliates, or among such Affiliates,
or by any such Affiliates to the Stockholder, the Company shall have received a
written opinion of legal counsel reasonably satisfactory to the Company. The
Company further agrees that it will cause the legends described in subsection
(a) of this Section 3.10 to be removed in the event of any transfer as provided
in clause (i), (ii) or (iii) above (other than a transfer to an Affiliate of the
Stockholder).
3.11 PUBLIC INFORMATION. The Company covenants to make available
"adequate current public information" concerning the Company within the meaning
of Rule 144(c) under the Securities Act.
ARTICLE IV
STANDSTILL AND OTHER OBLIGATIONS
4.01 THE STOCKHOLDER'S STANDSTILL OBLIGATIONS. During the Standstill
Period, the Stockholder shall not, and shall not permit any KPENV Entity to,
without first obtaining Written Approval:
(a) Beneficially own or acquire beneficial ownership of Voting
Stock or authorize or make a tender offer, exchange offer or other offer to
acquire Voting Stock, if the number of shares of Voting Stock beneficially owned
by the KPENV Entities exceeds (or would exceed following such an acquisition)
the Standstill Limit;
(b) "SOLICIT" or engage in any "SOLICITATION" of "PROXIES" with
respect to any Voting Stock (italicized terms in this Section 4.01(b) having the
respective meanings ascribed to them in Rule 14a-1 under the Exchange Act);
(c) Deposit any Voting Stock in a voting trust or subject any
Voting Stock to any arrangement or agreement with any third party with respect
to the voting of such Voting Stock;
(d) Join a 13D Group (other than a group comprised solely of KPENV
Entities);
(e) Publicly announce any intention to seek amendment or rescission
of the provisions of this Section 4.01 or make any proposal to amend or rescind,
support any proposal to amend or rescind, or publicly comment on any proposal to
amend or
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rescind, the Rights Plan, in the case of each of the foregoing, that has not
received Board Approval; or
(f) Publicly announce any intention or desire to (i) acquire the
Company or all or a material portion of assets of the Company (including,
without limitation, upon expiration of the Standstill Period), (ii) engage in a
transaction that would result in a Change of Control of the Company (including,
without limitation, upon expiration of the Standstill Period), (iii) increase
beyond the Standstill Limit the KPENV Entities' beneficial ownership of the
Company's equity securities (including, without limitation, upon expiration of
the Standstill Period), or (iv) take any other action that would otherwise be
prohibited under this Section 4.01.
4.02 STOCKHOLDER REPORTING OBLIGATIONS. The Stockholder shall
promptly (and in no case later than five business days of such event) notify the
Company of any acquisition by any KPENV Entity of Voting Stock other than such
an acquisition from the Company. Such notice shall specify the amount of Voting
Stock beneficially owned by the KPENV Entities as of the date of the notice.
Notwithstanding any provision of this Section 4.02 to the contrary, the
provisions of this Section 4.02 may be satisfied by the delivery by the
Stockholder to the Company of any Schedule 13D or Schedule 13G filed by the
Stockholder with the Commission in connection with such acquisition.
4.03 QUORUM OBLIGATION. During the Standstill Period, if and to the
extent the Company makes a telephonic request therefor (which request shall be
directed to Mr. Guido Dierick at +31 (40) 272-2041 or to Mr. Dierick's successor
as General Counsel to the KPENV Entities' global semiconductors business) the
Stockholder, as the holder of shares of Voting Stock, shall be present (and
shall cause any of its Affiliates holding Voting Stock to be so present), in
person or by proxy, at any meeting of stockholders of the Company as to which
such a request is made so that all such shares of Voting Stock may be counted
for purposes of determining the presence of a quorum at such meetings.
ARTICLE V
MISCELLANEOUS
5.01 TERM OF AGREEMENT; TERMINATION. The term of this Agreement
shall commence on the date hereof and such term and this Agreement shall
automatically terminate upon the earliest to occur of: (a) the termination
(prior to the Effective Time) of the Merger Agreement in accordance with its
terms, (b) the expiration of the Demand Period, and (c) when all of the
Stockholder Company Shares have been sold by the Stockholder either pursuant to
a registration statement or pursuant to a transaction or transactions exempt
from the registration provisions of the Securities Act.
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5.02 SPECIFIC PERFORMANCE AND OTHER EQUITABLE RIGHTS. Each of the
parties hereto recognizes and acknowledges that a breach by a party or by any
assignee thereof of any covenants or other commitments contained in this
Agreement will cause the other party to sustain injury for which it would not
have an adequate remedy at law for money damages. Therefore, each of the parties
hereto agrees that in the event of any such breach, the aggrieved party shall be
entitled to the remedy of specific performance of such covenants or commitments
and preliminary and permanent injunctive and other equitable relief in addition
to any other remedy to which it may be entitled, at law or in equity, and the
parties hereto further agree to waive any requirement for the securing or
posting of any bond in connection with the obtaining of any such injunctive or
other equitable relief.
5.03 NOTICES. All notices, requests, demands and other
communications hereunder shall be deemed to have been duly given and made if in
writing and if served by personal delivery upon the party for whom it is
intended or delivered by overnight courier, registered or certified mail, return
receipt requested, or if sent by telecopier, upon receipt of oral confirmation
that such transmission has been received, to the Person at the address set forth
below, or such other address as may be designated in writing hereafter, in the
same manner, by such Person:
(a) if to the Company, addressed as follows:
Gregory A. Robbins
c/o Veeco Instruments Inc.
100 Sunnyside Boulevard
Woodbury, New York 11797
Telephone: (516) 677-0200
Telecopier: (516) 677-9125
with a copy to:
Rory A. Greiss
c/o Kaye Scholer LLP
425 Park Avenue
New York, New York 10022
Telephone: (212) 836-8261
Telecopier: (212) 836-7152
(b) if to Florence, addressed as follows:
Bradley J. Thies
c/o FEI Company
7425 N.W. Evergreen Parkway
Hillsboro, Oregon 97124-5830
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Telephone: (503) 640-7500
Telecopier: (503) 640-7509
with a copy to:
Larry W. Sonsini
c/o Wilson Sonsini Goodrich & Rosati, Professional Corporation
650 Page Mill Road
Palo Alto, California 94304
Telephone: (650) 493-9300
Telecopier: (650) 493-6811
(c) if to the Stockholder, addressed as follows:
Guido Dierick
c/o Philips Semiconductors
Legal Department
Building B460-1
Prof. Holstlaan 4
5656AA Eindhoven
The Netherlands
Telephone: +31 (40) 272-2041
Telecopier: +31 (40) 272-4005
with a copy to:
Matthew G. Hurd
c/o Sullivan & Cromwell
1870 Embarcadero Road
Palo Alto, California 94303
Telephone: (650) 461-5600
Telecopier: (650) 461-5700,
or to such other address as the relevant party may from time to time advise by
notice in writing given pursuant to this Section 5.03. The date of receipt of
any such notice, request, consent, agreement or approval shall be deemed to be
the date of delivery thereof.
5.04 PARTIES IN INTEREST. This Agreement shall inure to the benefit
of and be binding upon the parties named herein and their respective successors,
assigns, officers, directors, partners, agents, underwriters and controlling
Persons. Except as provided in Section 3.06 and Section 5.08, nothing in this
Agreement, express or implied, is intended to confer upon any Person other than
the parties hereto, or their successors or assigns, any rights or remedies under
or by reason of this Agreement.
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5.05 SURVIVAL. The several indemnities, agreements, representations,
warranties and each other provision set forth in this Agreement or made pursuant
hereto shall remain in full force and effect regardless of any investigation (or
statement as to the results thereof) made by or on behalf of any party, any
director or officer of such party, or any controlling Person of any of the
foregoing, and shall survive the consummation of the Merger and the transfer of
any Registered Shares by the Stockholder, and the indemnification and
contribution provisions set forth in Section 3.06 hereof shall survive
termination of this Agreement.
5.06 SEVERABILITY. If any term, provision, covenant or restriction
of this Agreement is held by a court of competent jurisdiction to be invalid,
void or unenforceable, the remainder of the terms, provisions, covenants and
restrictions of this Agreement shall remain in full force and effect and shall
in no way be affected, impaired or invalidated.
5.07 ASSIGNMENT. No party to this Agreement may assign any of its
rights or obligations under this Agreement without the prior written consent of
the other parties hereto, which consent shall not be unreasonably withheld,
delayed or conditioned, and any such purported assignment shall be null and
void.
5.08 OTHER AGREEMENTS. The Company will not enter into any agreement
with respect to its securities which is in conflict with the rights granted in
this Agreement.
5.09 GOVERNING LAW; JURISDICTION; VENUE. This Agreement shall be
governed by and construed in accordance with the laws of the State of New York
(regardless of the laws that might otherwise govern under applicable New York
principles of conflicts of law). The parties hereto unconditionally and
irrevocably agree and consent to the exclusive jurisdiction of, and service of
process and venue in, the United States District Court and the courts of the
State of New York located in the County of New York, State of New York, and
waive any objection with respect thereto, for the purpose of any action, suit or
proceeding arising out of or relating to this Agreement or the transactions
contemplated hereby and further agree not to commence any such action, suit or
proceeding except in any such court. Each party irrevocably waives any
objections or immunities to jurisdiction to which it may otherwise be entitled
or become entitled (including sovereign immunity, immunity to pre-judgment
attachment, post-judgment attachment and execution) in any legal suit, action or
proceeding against it arising out of or relating to this Agreement or the
transactions contemplated hereby which is instituted in any such court.
5.10 ENTIRE AGREEMENT; AMENDMENTS. This Agreement and the other
writings referred to herein or delivered pursuant hereto which form a part
hereof contain the entire understanding of the parties with respect to its
subject matter. This Agreement supersedes all prior agreements and
understandings among the parties with respect to its subject matter. This
Agreement may be amended and the observance of any term of this
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Agreement may be waived (either generally or in a particular instance and either
retroactively or prospectively) only by a written instrument duly executed by
each of the parties, which shall be binding on all of the parties.
5.11 FURTHER ASSURANCES. Each party shall provide (at the expense of
the requesting party) such further documents or instruments reasonably requested
by any other party as may be necessary or desirable to effect the purpose and
intention of this Agreement and carry out its provisions, whether before or
after its termination.
5.12 DELAYS OR OMISSIONS. Except as expressly provided herein, no
delay or omission to exercise any right, power or remedy accruing to a party
under this Agreement shall impair any such right, power or remedy nor shall it
be construed to be a waiver of any such breach or default, or an acquiescence
therein, or of or in any similar breach or default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any other
breach or default theretofore or thereafter occurring.
5.13 EXPENSES. Except as otherwise specifically provided herein, the
Company and the Stockholder shall each bear their own expenses incurred with
respect to this Agreement and the transactions contemplated hereby.
5.14 COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which
together shall constitute one and the same instrument.
(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: /s/ J.C. Lobbezoo
--------------------------------------------------------------
Name: J.C. Lobbezoo
Title: Member Management Board
By: /s/ A.P.M. van der Poel
--------------------------------------------------------------
Name: A.P.M. van der Poel
Title: Member Management Board
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
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