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EXHIBIT 4.1
AMENDMENT NO. 2 TO RIGHTS AGREEMENT
This AMENDMENT NO. 2 (this "Amendment No. 2") is being entered
into as of July 11, 2002, between Veeco Instruments Inc., a Delaware corporation
(the "Company"), and American Stock Transfer and Trust Company, a New York
banking corporation, as rights agent (the "Rights Agent").
WHEREAS, the Company and the Rights Agent are parties to a
Rights Agreement, dated as of March 13, 2001, between the Company and the Rights
Agent, as previously amended pursuant to the Amendment to Rights Agreement dated
as of September 6, 2001 (the "Rights Agreement");
WHEREAS, simultaneously with the execution of this Amendment
No. 2, the Company is entering into an Agreement and Plan of Merger (the "FEI
Merger Agreement") by and among the Company, Venice Acquisition Corp., an Oregon
corporation and a wholly-owned subsidiary of the Company ("Acquisition") and FEI
Company, an Oregon corporation ("FEI"), pursuant to which Acquisition will merge
with and into FEI with the result that FEI will be the surviving corporation and
shall become a wholly-owned subsidiary of the Company (the "FEI Merger");
WHEREAS, pursuant to the FEI Merger, Philips Business
Electronics International B.V. ("Philips"), a significant stockholder of FEI,
will receive approximately 11,198,832 shares of common stock and other
securities of the Company, representing approximately 15% of the shares of
common stock of the Company expected to be outstanding as of the Effective Time
(as defined in the FEI Merger Agreement);
WHEREAS, simultaneously with the execution of this Amendment
No. 2, the Company is entering into that certain Investor Agreement dated the
date hereof between the Company, Philips and FEI; and
WHEREAS, pursuant to Section 27 of the Rights Agreement, the
Company and the Rights Agent may supplement or amend the Rights Agreement in
accordance with the provisions of Section 27 thereof. The Company now desires to
amend the Rights Agreement as set forth in this Amendment No. 2 and deems such
amendments to be necessary and desirable. Capitalized terms used but not defined
herein shall have the meanings ascribed to such terms in the Rights Agreement.
NOW THEREFORE, in consideration of the premises and the mutual
agreement herein set forth, the parties hereby agree as follows:
1. AMENDMENT OF SECTION 1(a). Section 1(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the contrary,
(A) for so long as none of the KPENV Entities that have
reported or
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are required to report ownership on Schedule 13G or Schedule
13D under the Exchange Act (or any comparable or successor
report) takes, or states any intention or desire to take, any
action prohibited under any of clauses (a) through (f) of
Section 4.01 of the Investor Agreement or (B) (I) if any of
the KPENV Entities that have reported or are required to
report ownership on Schedule 13G or Schedule 13D under the
Exchange Act (or any comparable or successor report) takes, or
states any intention or desire to take, any action prohibited
under any of clauses (a) through (f) of Section 4.01 of the
Investor Agreement and (II) the Board of Directors of the
Company in its sole discretion adopts a resolution approving
such action (which resolution may be adopted prior to, upon or
not later than 15 days following such time as a majority of
the Board of Directors of the Company becomes aware of the
taking of any such action by any KPENV Entity), none of the
KPENV Entities shall be deemed to be an Acquiring Person
solely as a consequence of: (i) the execution of the FEI
Merger Agreement; (ii) the beneficial ownership by the KPENV
Entities of Common Stock or other securities of the Company
acquired directly as a result of the FEI Merger; (iii) the
beneficial ownership by the KPENV Entities of the Philips
Option Shares; (iv) the acquisition by, or beneficial
ownership of, the KPENV Entities of a number of shares of
Common Stock, in addition to the shares described in clauses
(ii) and (iii), that is equal to or less than one percent (1%)
of the total number of shares of Common Stock from time to
time outstanding, calculated on a primary basis; and/or (v)
the transfer of shares of Common Stock received pursuant to
(ii), (iii) or (iv) above by and among the KPENV Entities."
2. AMENDMENT OF SECTION 1(kk). Section 1(kk) of the Rights
Agreement is hereby amended to add the following proviso at the end thereof:
"; PROVIDED FURTHER, HOWEVER, that (A) for so long as none of
the KPENV Entities that have reported or are required to
report ownership on Schedule 13G or Schedule 13D under the
Exchange Act (or any comparable or successor report) takes, or
states any intention or desire to take, any action prohibited
under any of clauses (a) through (f) of Section 4.01 of the
Investor Agreement or (B)(I) if any of the KPENV Entities that
have reported or are required to report ownership on Schedule
13G or Schedule 13D under the Exchange Act (or any comparable
or successor report) takes, or states any intention or desire
to take, any action prohibited under any of clauses (a)
through (f) of Section 4.01 of the Investor Agreement and (II)
the Board of Directors of
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the Company in its sole discretion adopts a resolution
approving such action (which resolution may be adopted prior
to, upon or not later than 15 days following such time as a
majority of the Board of Directors of the Company becomes
aware of the taking of any such action by any KPENV Entity),
no Triggering Event shall result solely by virtue of: (i) the
execution of the FEI Merger Agreement; (ii) the beneficial
ownership by the KPENV Entities of Common Stock or other
securities of the Company acquired directly as a result of the
FEI Merger; (iii) the beneficial ownership by the KPENV
Entities of the Philips Option Shares; (iv) the acquisition
by, or beneficial ownership of, the KPENV Entities of a number
of shares of Common Stock, in addition to the shares described
in clauses (ii) and (iii), that is equal to or less than one
percent (1%) of the total number of shares of Common Stock
from time to time outstanding, calculated on a primary basis;
and/or (v) the transfer of shares of Common Stock received
pursuant to (ii), (iii) or (iv) above by and among the KPENV
Entities."
3. AMENDMENT OF SECTION 1. Section 1 of the Rights Agreement
is hereby amended to add the following subparagraphs at the end thereof:
(pp) "Acquisition" shall mean Venice Acquisition Corp., an
Oregon corporation and a wholly-owned subsidiary of the
Company.
(qq) "FEI" shall mean FEI Company, an Oregon corporation.
(rr) "FEI Merger" shall mean the merger of Acquisition with
and into FEI pursuant to the FEI Merger Agreement with the
result that FEI will be the surviving corporation and shall
become a wholly-owned subsidiary of the Company.
(ss) "FEI Merger Agreement" shall have the meaning set
forth in Section 36 hereof.
(tt) "Investor Agreement"shall mean that certain Investor
Agreement, dated as of the date hereof, by and between the
Company, Philips Business Electronics International B.V. and
FEI.
(uu) "KPENV Entities" shall mean, 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.
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(vv) "Philips Option Shares" shall mean securities issuable
to Philips pursuant to Section 2.03 of the Investor Agreement.
4. AMENDMENT OF SECTION 3(a). Section 3(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary,(A) for so long as none of the KPENV Entities that
have reported or are required to report ownership on Schedule
13G or Schedule 13D under the Exchange Act (or any comparable
or successor report) takes, or states any intention or desire
to take, any action prohibited under any of clauses (a)
through (f) of Section 4.01 of the Investor Agreement or
(B)(I) if any of the KPENV Entities that have reported or are
required to report ownership on Schedule 13G or Schedule 13D
under the Exchange Act (or any comparable or successor report)
takes, or states any intention or desire to take, any action
prohibited under any of clauses (a) through (f) of Section
4.01 of the Investor Agreement and (II) the Board of Directors
of the Company in its sole discretion adopts a resolution
approving such action (which resolution may be adopted prior
to, upon or not later than 15 days following such time as a
majority of the Board of Directors of the Company becomes
aware of the taking of any such action by any KPENV Entity), a
Distribution Date shall not be deemed to have occurred solely
by virtue of: (i) the execution of the FEI Merger Agreement;
(ii) the beneficial ownership by the KPENV Entities of Common
Stock or other securities of the Company acquired directly as
a result of the FEI Merger; (iii) the beneficial ownership by
the KPENV Entities of the Philips Option Shares; (iv) the
acquisition by, or beneficial ownership of, the KPENV Entities
of a number of shares of Common Stock, in addition to the
shares described in clauses (ii) and (iii), that is equal to
or less than one percent (1%) of the total number of shares of
Common Stock from time to time outstanding, calculated on a
primary basis; and/or (v) the transfer of shares of Common
Stock received pursuant to (ii), (iii) or (iv) above by and
among the KPENV Entities."
5. AMENDMENT OF SECTION 7(a). Section 7(a) of the Rights
Agreement is hereby amended to add the following sentence at the end thereof:
"Notwithstanding anything in this Agreement to the
contrary,(A) for so long as none of the KPENV Entities that
have reported or are required to report ownership on Schedule
13G or Schedule 13D under the
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Exchange Act (or any comparable or successor report)
takes, or states any intention or desire to take, any action
prohibited under any of clauses (a) through (f) of Section
4.01 of the Investor Agreement or (B)(I) if any of the KPENV
Entities that have reported or are required to report
ownership on Schedule 13G or Schedule 13D under the Exchange
Act (or any comparable or successor report) takes, or states
any intention or desire to take, any action prohibited under
any of clauses (a) through (f) of Section 4.01 of the Investor
Agreement and (II) the Board of Directors of the Company in
its sole discretion adopts a resolution approving such action
(which resolution may be adopted prior to, upon or not later
than 15 days following such time as a majority of the Board of
Directors of the Company becomes aware of the taking of any
such action by any KPENV Entity), none of the following shall
be deemed to be events that cause the Rights to become
exercisable pursuant to the provisions of this Section 7 or
otherwise: (i) the execution of the FEI Merger Agreement; (ii)
the beneficial ownership by the KPENV Entities of Common Stock
or other securities of the Company acquired directly as a
result of the FEI Merger; (iii) the beneficial ownership by
the KPENV Entities of the Philips Option Shares; (iv) the
acquisition by, or beneficial ownership of, the KPENV Entities
of a number of shares of Common Stock, in addition to the
shares described in clauses (ii) and (iii), that is equal to
or less than one percent (1%) of the total number of shares of
Common Stock from time to time outstanding, calculated on a
primary basis; and/or (v) the transfer of shares of Common
Stock received pursuant to (ii), (iii) or (iv) above by and
among the KPENV Entities."
6. ADDITION OF SECTION 36. The Rights Agreement is hereby
amended to add the following new Section 36:
"Section 36. MERGER WITH FEI
The Company, Acquisition and FEI have entered into an
Agreement and Plan of Merger, dated as of July 11, 2002, as it
may be amended from time to time (the "FEI Merger Agreement").
Notwithstanding anything in this Agreement to the contrary, if
the FEI Merger Agreement shall be terminated for any reason,
then, effective as of the time of such termination, the
following provisions which were added to this Agreement by
Amendment No. 2 to Rights Agreement, dated as of July 11,
2002, shall be deemed repealed and deleted without any further
action on the part of the Company or the Rights Agent: (1) the
last sentence of Section 1(a) hereof, (2) the proviso at the
end of Section 1(kk) hereof, (3) subsections (pp), (qq), (rr),
(ss), (tt), (uu) and (vv) of Section 1 hereof, (4) the last
sentence of Section 3(a) hereof and (5) the last sentence of
Section 7(a) hereof."
7. EFFECTIVENESS. This Amendment No. 2 shall be deemed
effective as of the date first written above. Except as amended hereby, the
Rights Agreement shall remain in full force
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and effect and shall be otherwise unaffected hereby.
8. MISCELLANEOUS. This Amendment No. 2 shall be deemed to be a
contract made under the laws of the State of Delaware and for all purposes shall
be governed by and construed in accordance with the laws of such state
applicable to contracts to be made and performed entirely within such state
without giving effect to the principles of conflict of laws thereof. This
Amendment No. 2 may be executed in any number of counterparts, each of such
counterparts shall for all purposes be deemed to be an original, and all such
counterparts shall together constitute but one and the same instrument. If any
term or other provision of this Amendment No. 2 is determined to be invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all
other terms and provisions of this Amendment No. 2 shall nevertheless remain in
full force and effect and upon such determination that any term or other
provision is invalid, illegal or incapable of being enforced, this Amendment No.
2 and such term or other provision shall be deemed to have been amended so as to
effect the original intent of the parties as closely as possible in a manner
acceptable to the board of directors of the Company.
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IN WITNESS WHEREOF, this Amendment No. 2 to Rights Agreement
is executed under seal as of the date first set forth above.
VEECO INSTRUMENTS INC.
By: /s/ Greg Robbins
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Name: Greg Robbins
Title: Vice President and General Counsel
AMERICAN STOCK TRANSFER AND TRUST
COMPANY
By: /s/ Herbert J. Lemmer
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Name: Herbert J. Lemmer
Title: Vice President and General Counsel