AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JANUARY 29, 1999
REGISTRATION NO. 333-70417
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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VEECO INSTRUMENTS INC.
(Exact name of registrant as specified in its charter)
DELAWARE 11-2989601
(State or other jurisdiction of incorporation (I.R.S. Employer Identification No.)
or organization)
TERMINAL DRIVE
PLAINVIEW, NEW YORK 11803
(516) 349-8300
(Address, including zip code, and telephone number, including
area code, of registrant's principal executive offices)
EDWARD H. BRAUN
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND PRESIDENT
VEECO INDUSTRIES INC.
TERMINAL DRIVE
PLAINVIEW, NEW YORK 11803
(516) 349-8300
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
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COPIES TO:
RORY A. GREISS, ESQ. JEFFREY A. STEIN, ESQ.
KAYE, SCHOLER, FIERMAN, HAYS & HANDLER, LLP HALE AND DORR LLP
425 PARK AVENUE 60 STATE STREET
NEW YORK, NEW YORK 10022 BOSTON, MASSACHUSETTS 02109
(212) 836-8000 (617) 526-6000
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: AS SOON AS
PRACTICABLE AFTER THIS REGISTRATION STATEMENT BECOMES EFFECTIVE.
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
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PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
The following table sets forth the estimated (except for the Securities and
Exchange Commission registration fee, the National Association of Securities
Dealers, Inc. filing fee and The Nasdaq Stock Market filing fee) fees and
expenses (other than underwriting discounts and commissions) in connection with
the offering described in this registration statement:
Securities and Exchange Commission registration fee............... $ 61,861
National Association of Securities Dealers, Inc. filing fee....... 22,752
The Nasdaq National Market filing fee............................. 17,500
Blue Sky filing and counsel fees and expenses..................... 10,000
Printing and engraving costs...................................... 100,000
Legal fees and expenses........................................... 250,000
Accounting fees and expenses...................................... 75,000
Miscellaneous..................................................... 62,887
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Total......................................................... $ 600,000
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ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
Section 145 of the Delaware General Corporation Law ("DGCL") provides that a
Delaware corporation may indemnify any person who was or is a party or is
threatened to be made a party to any threatened, pending or completed action,
suit or proceeding whether civil, criminal, administrative or investigative
(other than an action by or in the right of the corporation) by reason of the
fact that he is or was a director, officer, employee or agent of the
corporation, or is or was serving at the request of the corporation as a
director, officer, employee or agent of another corporation, partnership, joint
venture, trust or other enterprise, against expenses (including attorneys'
fees), judgments, fines and amounts paid in settlement actually and reasonably
incurred by him in connection with such action, suit or proceeding if he acted
in good faith and in a manner he reasonably believed to be in or not opposed to
the best interests of the corporation, and, with respect to any criminal action
or proceeding, had no reasonable cause to believe his conduct was unlawful.
Section 145 further provides that a Delaware corporation similarly may indemnify
any such person serving in any such capacity who was or is a party or is
threatened to be made a party to any threatened, pending or completed action or
suit by or in the right of the corporation to procure a judgment in its favor,
against expenses actually and reasonably incurred in connection with the defense
or settlement of such action or suit if he acted in good faith and in a manner
he reasonably believed to be in or not opposed to the best interests of the
corporation and except that no indemnification shall be made in respect of any
claim, issue or matter as to which such person shall have been adjudged to be
liable to the corporation unless and only to the extent that the Delaware Court
of Chancery or such other court in which such action or suit was brought shall
determine upon application that, despite the adjudication of liability but in
view of all the circumstances of the case, such person is fairly and reasonably
entitled to indemnity for such expenses which the Court of Chancery or such
other court shall deem proper.
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Article 9 of the Company's Certificate of Incorporation entitles officers
and directors of the Company to indemnification to the fullest extent permitted
by Section 145 of the DGCL, as the same may be supplemented from time to time.
Section 102(b)(7) of the DGCL permits a corporation to include in its
certificate of incorporation a provision eliminating or limiting the personal
liability of a director to the corporation or its stockholders for monetary
damages for breach of fiduciary duty as a director, provided that such provision
shall not eliminate or limit the liability of a director (i) for any breach of
the director's duty of loyalty to the corporation or its stockholder, (ii) for
acts or omissions not in good faith or which involve intentional misconduct or a
knowing violation of law, (iii) under Section 174 of the DGCL (relating to
unlawful payment of dividends and unlawful stock purchase and redemption) or
(iv) for any transaction from which the director derived an improper personal
benefit.
The Company's Certificate of Incorporation provides that its directors shall
not be liable to the issuer or its stockholders for monetary damages for breach
of fiduciary duty as a director except to the extent that exculpation from
liabilities is not permitted under the DGCL as in effect at the time such
liability is determined. Such Certificate of Incorporation further provides that
the Company shall indemnify its directors and officers to the fullest extent
permitted by the DGCL.
Insofar as indemnification for liabilities arising under the Securities Act
may be permitted to directors, officers or persons controlling any registrant
pursuant to the foregoing provisions, the registrant has been informed that in
the opinion of the Commission, such indemnification is against public policy as
expressed in the Securities Act, and is therefore unenforceable.
Reference is made to the Company's Certificate of Incorporation, filed as an
exhibit to the Company's Annual Report on Form 10-K which is incorporated herein
by reference.
Reference is also made to Section 5 of the Underwriting Agreement, a form of
which is filed as Exhibit 1.1 hereto, which provides certain indemnification
rights to the directors and officers of the Company in connection with this
offering.
ITEM 16. EXHIBITS.
EXHIBIT
NUMBER EXHIBIT
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1.1 Form of Underwriting Agreement.*
4.1 Form of Certificate of Common Stock.(2)
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP regarding the legality of the securities being
registered.*
23.1 Consent of Ernst & Young LLP.(1)
23.2 Consent of Arthur Andersen LLP.(1)
23.3 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included in opinion).*
24.1 Power of Attorney (included on signature page).(1)
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* Filed herewith.
(1) Previously filed as an Exhibit to the Company's initial Registration
Statement on Form S-3 (Registration No. 333-70417)
(2) Previously filed as an Exhibit to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-85184) and incorporated herein by reference.
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ITEM 17. UNDERTAKINGS.
(a) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act of 1933, each filing of the
registrant's annual report pursuant to section 13(a) or section 15(d) of the
Securities Exchange Act of 1934 that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(b) Insofar as indemnification for liabilities arising under the Securities
Act of 1933 may be permitted to directors, officers and controlling persons of
the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the Act
and is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the registrant of expenses
incurred or paid by a director, officer or controlling person of the registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Act and will be governed by the final adjudication of
such issue.
(c) The undersigned registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act of
1933, the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form of
prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or 497(h)
under the Securities Act shall be deemed to be part of this registration
statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities Act of
1933, each post-effective amendment that contains a form of prospectus shall be
deemed to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
registrant has duly caused this Amendment No. 1 to be signed on its behalf by
the undersigned, thereunto duly authorized, in the City of New York, State of
New York, on January 29, 1999.
VEECO INSTRUMENTS INC.
By: /s/ EDWARD H. BRAUN
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Edward H. Braun
CHAIRMAN, CHIEF EXECUTIVE OFFICER AND
PRESIDENT
Pursuant to the requirements of the Securities Act of 1933, as amended, this
Amendment No. 1 has been signed below by the following persons in the capacities
and on the dates indicated.
SIGNATURES TITLE DATE
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Director, Chairman, Chief
/s/ EDWARD H. BRAUN Executive Officer and
- ------------------------------ President (principal January 29, 1999
Edward H. Braun executive officer)
*
- ------------------------------ Director January 29, 1999
Richard A. D'Amore
*
- ------------------------------ Director January 29, 1999
Joel A. Elftmann
*
- ------------------------------ Director January 29, 1999
Virgil Elings, Ph.D.
*
- ------------------------------ Director January 29, 1999
Heinz K. Fridrich
*
- ------------------------------ Director January 29, 1999
John A. Gurley
*
- ------------------------------ Director January 29, 1999
Dr. Paul R. Low
*
- ------------------------------ Director January 29, 1999
Roger D. McDaniel
*
- ------------------------------ Director January 29, 1999
Irwin H. Pfister
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SIGNATURES TITLE DATE
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*
- ------------------------------ Director January 29, 1999
Walter J. Scherr
*
- ------------------------------ Director January 29, 1999
James C. Wyant, Ph.D.
Vice President-Finance,
/s/ JOHN F. REIN, JR. Chief Financial Officer,
- ------------------------------ Treasurer and Secretary January 29, 1999
John F. Rein, Jr. (principal financial
officer)
Vice President and
/s/ JOHN P. KIERNAN Corporate Controller
- ------------------------------ (principal accounting January 29, 1999
John P. Kiernan officer)
*By: /s/ EDWARD H. BRAUN
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ATTORNEY-IN-FACT
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EXHIBIT INDEX
EXHIBIT NO. DOCUMENT PAGE
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1.1 Form of Underwriting Agreement.*
4.1 Form of Certificate of Common Stock.(2)
5.1 Opinion of Kaye, Scholer, Fierman, Hays & Handler, LLP regarding the legality of the
securities being registered.*
23.1 Consent of Ernst & Young LLP.(1)
23.2 Consent of Arthur Andersen LLP.(1)
23.3 Consent of Kaye, Scholer, Fierman, Hays & Handler, LLP (included in opinion).*
24.1 Power of Attorney (included on signature page).(1)
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* Filed herewith.
(1) Previously filed as an Exhibit to the Company's initial Registration
Statement on Form S-3 (Registration No. 333-70417)
(2) Previously filed as an Exhibit to the Registrant's Registration Statement on
Form S-1 (Registration No. 33-85184) and incorporated herein by reference.