EXHIBIT 2
AFFILIATES AGREEMENT
THIS AFFILIATES AGREEMENT (the "Affiliates Agreement") is entered into as
of the 5th day of May, 1997 between Veeco Instruments Inc., a Delaware
corporation ("Acquiror"), and the undersigned shareholder (the "Shareholder")
of Wyko Corporation, an Arizona corporation ("Target").
RECITALS
A. Target, Acquiror and Veeco Acquisition Corp., a Delaware corporation and
a wholly-owned subsidiary of Acquiror ("Merger Sub"), have entered into an
Agreement and Plan of Merger, dated April , 1997 (the "Merger Agreement"),
pursuant to which Merger Sub will be merged into Target (the "Merger"), and
Target will become a wholly-owned subsidiary of Acquiror.
B. Upon the consummation of the Merger and in connection therewith, the
undersigned Shareholder will become the owner of shares of common stock, $.01
par value per share, of Acquiror (the "Acquiror Shares").
C. The parties to the Merger Agreement intend to cause the Merger to be
accounted for as a pooling of interests pursuant to APB Opinion No. 16, Staff
Accounting Series Releases No. 130, 135 and 146 and Staff Accounting Bulletins
Topic Two.
NOW, THEREFORE, in consideration of the premises and the mutual agreements,
provisions and covenants set forth in the Merger Agreement and in this
Affiliates Agreement, it is hereby agreed as follows:
1. The undersigned Shareholder hereby agrees that:
(a) The undersigned Shareholder may be deemed to be (but does not hereby
admit to be) an "affiliate" of Target within the meaning of Rule 144 under
the Securities Act of 1933, as amended (the "Securities Act"), and
Accounting Series Release No. 130, as amended, of the Securities and
Exchange Commission (the "SEC") ("Release No. 130").
(b) The undersigned Shareholder will not sell, exchange, transfer,
pledge, dispose of or otherwise reduce the undersigned Shareholder's risk
relative to the Acquiror Shares or any part thereof until such time after
the Effective Time of the Merger as financial results covering at least
thirty (30) days of the combined operations of Acquiror and Target after the
Effective Time of the Merger have been, within the meaning of said Release
No. 130, filed by Acquiror with the SEC or published by Acquiror in an
Annual Report on Form 10-K, a Quarterly Report on Form 10-Q, a Current
Report on Form 8-K, a quarterly earnings report, a press release or other
public issuance that includes combined sales and income of Target and
Acquiror. Acquiror agrees to make such filing or publication as soon as
practicable and to notify the undersigned Shareholder promptly upon making
such filing or publication. The undersigned will not, during the thirty (30)
day period prior to the Effective Time of the Merger as determined in
Acquiror's reasonable discretion, sell, exchange, transfer, pledge, dispose
of or otherwise reduce the undersigned Shareholder's risk relative to the
Acquiror Shares or any part thereof (including any disposition, within such
period, of Shareholder's shares of Target Common Stock).
(c) The undersigned Shareholder has, and as of the Effective Time of the
Merger will have, no present plan or intent (a "Plan") to engage in a sale,
exchange, transfer, pledge, disposition or any other transaction (including
a distribution by a partnership to its partners or by a corporation to its
shareholders) that results in a reduction in the risk of ownership
(collectively, a "Sale") with respect to more than fifty percent (50%) of
the shares of Acquiror Common Stock to be acquired by the undersigned
Shareholder upon consummation of the Merger. The undersigned Shareholder is
not
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aware of, or participating in, any Plan on the part of Target's shareholders
to engage in Sales of the shares of Acquiror Common Stock to be issued in
the Merger such that the aggregate fair market value, as of the Effective
Time of the Merger, of the shares subject to such Sales would exceed fifty
percent (50%) of the aggregate fair market value of all shares of
outstanding Target Common Stock immediately prior to the Merger. A Sale of
Acquiror Common Stock shall be considered to have occurred pursuant to a
Plan if such Sale occurs in a transaction that is in contemplation of, or
related or pursuant to, the Merger Agreement (a "Related Transaction"). In
addition, shares of Target Common Stock (i) exchanged for cash in lieu of
fractional shares of Acquiror Common Stock and (ii) with respect to which a
Sale occurred in a Related Transaction prior to the Merger shall be
considered to have been shares of outstanding Target Common Stock that were
exchanged for Acquiror Common Stock in the Merger and then disposed of
pursuant to a Plan. If any of the undersigned Shareholder's representations
in this subsection (c) ceases to be true at any time prior to the Effective
Time of the Merger, the undersigned Shareholder shall deliver to each of
Target and Acquiror, prior to the Effective Time of the Merger, a written
statement to that effect. Except as otherwise set forth in Appendix A, the
undersigned Shareholder has not engaged in a sale of any shares of Target
Common Stock since . The undersigned Shareholder understands and
acknowledges that Target, Acquiror and their respective shareholders, as
well as legal counsel to Target and Acquiror, are entitled to rely on (i)
the truth and accuracy of the undersigned Shareholder's representations
contained therein and (ii) the undersigned Shareholder's performance of the
obligations set forth herein.
(d) Subject to paragraphs (b) and (c) of this Section 1, the undersigned
Shareholder agrees not to offer, sell, exchange, transfer, pledge or otherwise
dispose of any of the Acquiror Shares unless at that time the time period set
forth in paragraph (b) of this Section 1 has expired and either:
(i) such transaction is permitted pursuant to the provisions of Rule
145(d) under the Securities Act;
(ii) counsel representing the undersigned Shareholder, satisfactory to
Acquiror, shall have advised Acquiror in a written opinion letter
satisfactory to Acquiror and Acquiror's counsel, and upon which Acquiror and
its counsel may rely, that no registration under the Securities Act is
required in connection with the proposed sale, transfer or other
disposition;
(iii) a registration statement under the Securities Act covering the
Acquiror Shares proposed to be sold, transferred or otherwise disposed of,
describing the manner and terms of the proposed sale, transfer or other
disposition, and containing a current prospectus, is filed with the SEC and
made effective under the Securities Act; or
(iv) an authorized representative of the SEC shall have rendered written
advice to the undersigned Shareholder (sought by the undersigned Shareholder
or counsel to the undersigned Shareholder, with a copy thereof and of all
other related communications delivered to Acquiror) to the effect that the
SEC will take no action, or that the staff of the SEC will not recommend
that the SEC take action, with respect to the proposed offer, sale,
exchange, transfer, pledge or other disposition if consummated.
(e) All certificates representing the Acquiror Shares deliverable to the
undersigned Shareholder pursuant to the Merger Agreement and in connection with
the Merger and any certificates subsequently issued with respect thereto or in
substitution therefor shall, unless one or more of the alternative conditions
set forth in the subparagraphs of paragraph (d) of this Section 1 shall have
occurred, bear a legend substantially as follows:
"The shares represented by this certificate may not be offered,
sold, exchanged, transferred, pledged or otherwise disposed of
except in accordance with the requirements of the Securities Act
of 1933, as amended, and the other conditions specified in
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that certain Affiliates Agreement, dated as of April , 1997,
between Acquiror and , a copy of which Affiliates
Agreement may be inspected by the holder of this certificate at
the offices of Acquiror, or Acquiror will furnish, without charge,
a copy thereof to the holder of this certificate upon written
request therefor."
Acquiror, at its discretion, may cause stop transfer orders to be placed with
its transfer agent with respect to the certificates for the Acquiror Shares but
not as to the certificates for any part of the Acquiror Shares as to which said
legend is no longer appropriate when one or more of the alternative conditions
set forth in the subparagraphs of paragraph (d) of this Section 1 shall have
occurred.
(f) The undersigned Shareholder will observe and comply with the Securities
Act and the General Rules and Regulations thereunder, as now in effect and as
from time to time amended and including those hereafter enacted or promulgated,
in connection with any offer, sale, exchange, transfer, pledge or other
disposition of the Acquiror Shares or any part thereof.
(g) The undersigned Shareholder undertakes and agrees to indemnify and hold
harmless Acquiror, Target, and each of their respective current and future
officers and directors and each person, if any, who now or hereafter controls or
may control Acquiror or Target within the meaning of the Securities Act (an
"Indemnified Person") from and against any and all claims, demands, actions,
causes of action, losses, costs, damages, liabilities and expenses ("Claims")
based upon, arising out of or resulting from any breach or nonfulfillment of any
undertaking, covenant or agreement made by the undersigned Shareholder in
subsection (b), (c), (d) or (f) of this Section 1, or caused by or attributable
to the undersigned Shareholder, or the undersigned Shareholder's agents or
employees, or representatives, brokers, dealers and/or underwriters insofar as
they are acting on behalf of and in accordance with the instruction of or with
the knowledge of the undersigned Shareholder, in connection with or relating to
any offer, sale, pledge, transfer or other disposition of any of the Acquiror
Shares by or on behalf of the undersigned Shareholder, which claim or claims
result from any breach or nonfulfillment as set forth above. The indemnification
set forth herein shall be in addition to any liability that the undersigned
Shareholder may otherwise have to the Indemnified Persons.
(h) Promptly after receiving definitive notice of any Claim in respect of
which an Indemnified Person may seek indemnification under this Affiliates
Agreement, such Indemnified Person shall submit notice thereof to the
undersigned Shareholder. The omission by the Indemnified Person so to notify the
undersigned Shareholder of any such Claim shall not relieve the undersigned
Shareholder from any liability the undersigned Shareholder may have hereunder
except to the extent that (i) such liability was caused or increased by such
omission, or (ii) the ability of the undersigned Shareholder to reduce or defend
against such liability was adversely affected by such omission. The omission of
the Indemnified Person so to notify the undersigned Shareholder of any such
Claim shall not relieve the undersigned Shareholder from any liability the
undersigned Shareholder may have otherwise than hereunder. The Indemnified
Persons and the undersigned Shareholder shall cooperate with and assist one
another in the defense of any Claim and any action, suit or proceeding arising
in connection therewith.
2. REPORTS. From and after the Effective Time of the Merger and for so long
as necessary in order to permit the undersigned Shareholder to sell the Acquiror
Shares pursuant to Rule 145 and, to the extent applicable, Rule 144 under the
Securities Act, Acquiror will file on a timely basis all reports required to be
filed by it pursuant to Section 13 or 15(d) of the Securities Exchange Act of
1934, referred to in paragraph (c)(1) of Rule 144 under the Securities Act (or,
if applicable, Acquiror will make publicly available the information regarding
itself referred to in paragraph (c)(2) of Rule 144), in order to permit the
undersigned Shareholder to sell, pursuant to the terms and conditions of Rule
145 and the applicable provisions of Rule 144, the Acquiror Shares.
3. WAIVER. No waiver by any party hereto of any condition or of any breach
of any provision of this Affiliates Agreement shall be effective unless in
writing.
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4. NOTICES. All notices, requests, demands or other communications that are
required or may be given pursuant to the terms of this Affiliates Agreement
shall be in writing and shall be deemed to have been duly given if delivered by
hand or mailed by registered or certified mail, postage prepaid, as follows:
(a) If to the Shareholder, at the address set forth below the Shareholder's
signature at the end hereof.
(b) If to Acquiror, Target or the other Indemnified Persons:
Veeco Instruments Inc.
Xxxxxxxx Xxxxx
Xxxxxxxxx, Xxx Xxxx 00000
Attention: Chairman, President and Chief Executive Officer
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxx, Scholer, Fierman, Xxxx & Handler, LLP
000 Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx Xxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
and
Wyko Corporation
0000 Xxxx Xxxxxx Xxxx
Xxxxxx, Xxxxxxx 00000
Attention: Xxxxx X. Xxxxx
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
with a copy (which shall not constitute notice) to:
Xxxxxxxx & Xxxxxxxx LLP
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, XX 00000-0000
Attention: Xxxxxxx Xxxxxxxx, Esq.
Facsimile No.: (000) 000-0000
Telephone No.: (000) 000-0000
or to such other address as any party hereto or any Indemnified Person may
designate for itself by notice given as herein provided.
5. COUNTERPARTS. For the convenience of the parties hereto, this Affiliates
Agreement may be executed in one or more counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same
document.
6. SUCCESSORS AND ASSIGNS. This Affiliates Agreement shall be enforceable
by, and shall inure to the benefit of and be binding upon, the parties hereto
and their respective successors and assigns. Moreover, this Affiliates Agreement
shall be enforceable by, and shall inure to the benefit of, the Indemnified
Persons and their respective successors and assigns. As used herein, the term
"successors and assigns" shall mean, where the context so permits, heirs,
executors, administrators, trustees and successor trustees, and personal and
other representatives.
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7. GOVERNING LAW. This Affiliates Agreement shall be governed by and
construed, interpreted and enforced in accordance with the laws of the State of
New York.
8. EFFECTIVENESS; SEVERABILITY. This Affiliates Agreement shall become
effective at the Effective Time of the Merger. If a court of competent
jurisdiction determines that any provision of this Affiliates Agreement is
unenforceable or enforceable only if limited in time and/or scope, this
Affiliates Agreement shall continue in full force and effect with such provision
stricken or so limited.
9. EFFECT OF HEADINGS. The section headings herein are for convenience only
and shall not affect the construction or interpretation of this Affiliates
Agreement.
10. DEFINITIONS. All capitalized terms used herein shall have the meaning
defined in the Merger Agreement, unless otherwise defined herein.
IN WITNESS WHEREOF, the parties have caused this Affiliates Agreement to be
executed as of the date first above written.
ACQUIROR SHAREHOLDER
By: /s/ Xxxxxx X. Xxxxx /s/ Xxxxx X. Xxxxx
----------------------------------------- ------------------------------------------
Xxxxxx X. Xxxxx (Signature)
Chairman, President and
Chief Executive Officer ------------------------------------------
(Print Name)
------------------------------------------
(Print Address)
------------------------------------------
(Print Telephone Number)
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