Exhibit 10.37


 


AMENDMENT NO. 1 TO THE

VEECO INSTRUMENTS INC.

SENIOR EXECUTIVE CHANGE IN CONTROL POLICY


 


WHEREAS, Veeco
Instruments Inc. adopted and maintains the Veeco Instruments Inc. Senior
Executive Change in Control Policy (the “Policy”) for the benefit of eligible
executive employees;


 


WHEREAS, Section 13
of the Policy reserves to the Company the right to amend the Policy at any
time, subject to specific limitations set forth therein; and


 


WHEREAS, the
Company desires to amend the Policy as set forth below:


 


NOW, THEREFORE, the Policy is hereby amended as follows,
effective as of the date of its initial adoption, September 12, 2008:


 


1.             The
definition of Change in Control in Section 2 of the Policy is amended in
its entirety to state as follows:


 


“Change in Control” shall mean:


 


(i)            any person or group
acquires stock of the Company that, together with stock held by such person or
group, constitutes more than 50% of the total fair market value or total voting
power of the stock of the Company. However, if any person or group is
considered to own more than 50% of the total fair market value or total voting
power of the stock of the Company, the acquisition of additional stock by the
same person or group is not considered to cause a Change in Control of the Company.
An increase in the percentage of stock owned by any person or group as a result
of a transaction in which the Company acquires its stock in exchange for
property will be treated as an acquisition of stock for purposes of this
subsection. This subsection applies only when there is a transfer of stock of
the Company (or issuance of stock of such entity) and stock in such entity
remains outstanding after the transaction;


 


(ii)           any person or group
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or group) ownership of stock of the
Company possessing 30% or more of the total voting power of the stock of the
Company;


 


(iii)          a majority of
members of the Board is replaced during any 12-month period by Directors whose
appointment or election is not endorsed by a majority of the members of the
such entity’s Board or Directors prior to the date of the appointment or
election; or


 


(iv)          any person or group
acquires (or has acquired during the 12-month period ending on the date of the
most recent acquisition by such person or group) substantially all of the
assets of the Company immediately prior to such acquisition or acquisitions. However,
no Change in Control shall be deemed to occur under this subsection (iv) as
a result of a transfer to:


 

















 


(A)            A shareholder of the Company (immediately
before the asset transfer) in exchange for or with respect to its stock;


 


(B)            An entity, 50% or
more of the total value or voting power of which is owned, directly or
indirectly, by the Company;


 


(C)           A person or group
that owns, directly or indirectly, 50% or more of the total value or voting
power of all the outstanding stock of the Company; or


 


(D)          An entity, at least
50% of the total value or voting power of which is owned, directly or
indirectly, by a person described in clause (iii) above.


 


For purposes of
this definition, the term “person” shall mean an individual, corporation,
association, joint-stock company, business trust or other similar organization,
partnership, limited liability company, joint venture, trust, unincorporated
organization or government or agency, instrumentality or political subdivision
thereof (for clarification, other than the Company or any subsidiary of the
Company, or any employee benefit plan maintained by the Company or any
subsidiary thereof). The term “group” shall have the meaning set forth in Rule 13d-5
of the Securities Exchange Commission (“SEC”), modified to the extent necessary
to comply with Treasury Regulation Section 1.409A-3(g)(5)(v)(B), or any
successor thereto in effect at the time a determination of whether a Change in
Control has occurred is being made. If any one person, or persons acting as a
group, is considered to effectively control the Company as described in
subsections (ii) or (iii) above, the acquisition of additional
control by the same person or persons is not considered to cause a Change in
Control.


 


The term “Group
Change in Control” means a Change in Control described in paragraph (i) or
paragraph (iv) above, substituting the entity which owns the assets and
conducts the business of the relevant Group for the Company thereunder.


 


2.             Section 4(b)(ii) of
the Policy is amended by adding the following sentence to the end thereof:


 


Any tax gross-up
payment required under this paragraph shall be paid in a single lump sum
payment at the same time severance is otherwise payable under paragraph (i) above.


 


3.             Section 4(b)(iii) of
the Policy is amended by deleting the semicolon and adding the following clause
to the end thereof:


 


“... but in any
event within 21⁄2 months after the end of the performance period.”


 


4.             Section 14(b)(iii) of
the Policy is amended in its entirety to state as follows:


 


Each of the payments and benefits under Section 4(b) of this
Agreement are designated as separate payments for purposes of the short-term
deferral rules under Treasury Regulation Section 1.409A-1(b)(4)(i)(F),
the exemption for involuntary terminations under separation pay plans under
Treasury Regulation Section 1.409A-1(b)(9)(iii), and the exemption for
medical expense reimbursements under Treasury


 


2

















 


Regulation Section 1.409A-1(b)(9)(v)(B).
As a result, (1) any payments that become vested as a result of a
qualifying termination that are made on or before the 15th day of the third
month following the later of the end of the Company’s taxable year or the end
of the Executive’s taxable year in which occurs the Executive’s termination of
employment, (2) any additional payments that are made on or before the
last day of the second calendar year following the year of the Executive’s
termination and do not exceed the lesser of two times annual base salary or two
times the limit under Code Section 401(a)(17) then in effect, and (3) the
payment of medical expenses within the applicable COBRA period, are exempt from
the requirements of Code Section 409A. If the Executive dies prior to the
expiration of the Delay Period, payment of any amounts previously withheld
under Section 14(b)(i) above shall be paid to the Executive’s
beneficiary as soon as practicable following the Executive’s death.


 


*  * 
*  *  *


 


I hereby certify that the forgoing Policy was duly adopted by the
Committee as of the date first above written.


 


Executed on this 23rd day of December, 2008


 


	
   

  	
  /s/ Roger D. McDaniel

  
	
   

  	
  Chairman of the
  Compensation Committee

  



 


3