This case was last updated from Santa Clara County Superior Courts on 08/08/2019 at 02:04:18 (UTC).

Wolther v. Maheshwari, et al. (Consolidated Action/LEAD CASE)

Case Summary

On 06/08/2018 Wolther filed a Contract - Security lawsuit against Maheshwari, Consolidated Action/LEAD CASE. This case was filed in Santa Clara County Superior Courts, Downtown Superior Court located in Santa Clara, California. The Judges overseeing this case are Strickland, Elizabeth, Kuhnle, Thomas and Walsh, Brian C. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ******9690

  • Filing Date:

    06/08/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Security

  • Court:

    Santa Clara County Superior Courts

  • Courthouse:

    Downtown Superior Court

  • County, State:

    Santa Clara, California

Judge Details

Judges

Strickland, Elizabeth

Kuhnle, Thomas

Walsh, Brian C

 

Party Details

Plaintiffs and Not Classified By Court

Wolther, Matt

Construction Workers Pension Trust Fund - Lake County and Vicinity

Iron Workers District Council of New England Pension Fund

Defendants

Jackson, Keith D.

Hunter, Gordon

Bayless, Kathleen A.

D'Amore, Richard A.

Simone, Peter J.

Peeler, John R.

Kiernan, John P.

Maheshwari, Shubham

Veeco Instruments, Inc.

St. Dennis, Thomas

Not Classified By Court

Superior Court of California

Construction Workers Pension Trust Fund - Lake County and Vicinity

Iron Workers District Council of New England Pension Fund

Vladimir Gusinsky Revocable Trust

Attorney/Law Firm Details

Plaintiff and Not Classified By Court Attorneys

Bottini, Francis Alexander

Kolesnikov, Yury A

Chang, Albert Y.

Jaconette, James Ian

Buell, Guillaume

Hall, David William

Superior Court of CA, County of Santa Clara

Robbins, Brian James

Defendant Attorneys

Foran, Derek Francis

Webb, Robert L

Close, Matthew William

 

Court Documents

Order

Order and Notice of Reassignment of Case to D1 BCW; CMC reset to 11-16-18 at 10am in D1 BCW: Comment: Order & Notice of Reassignment of Case to D1, Hon. Brian C. Walsh presiding; CMC reset to 11/16/18 at 10am in D1 - signed/BCW

Notice

(2018-08-22) Notice re Waivers.pdf: Comment: Notice of Acknowledgments of Receipt

Notice

Notice CMC reset from 9-21-18 to 11-16-18: Comment: CMC reset from 9/21/18 to 11/16/18

Notice: Entry of Order

(2018-07-26) Notice of Entry of Order.pdf: Comment: Notice: Entry of Order

Proof of Service

2018-07-25 -Proof_of_Service.pdf: Comment: Proof of Service

Notice

2018-07-25-VECO_-_notice_of_appearance.pdf: Comment: Notice of Appearance

Notice

(2018-07-24) Notice of Payment.pdf: Comment: Notice of Payment of Complex Litigation Fee

Order: Deeming Case Complex

Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

Proof of Service: Summons DLR (Civil)

(2018-06-22) POS for Veeco.pdf: Comment: Proof of Service of Summons/Complaint

Statement: Case Management Conference

Joint CMC Statement: Comment: Joint Case Management Statement

Response/Reply

HRG 11.16.18 Reply.pdf: Comment: Reply in Further Support of Motion to Consolidate and Appoint Lead Counsel

Proof of Service: Mail

Proof of Service: Comment: Proof of Service: Mail

Response/Reply

Response to Mot to Consolidate Cases: Comment: Response to Motion to Consolidate Related Cases and Appoint Lead Counsel

Substitution: Attorney

Substitution Attorney: Comment: OLD: Derek F. Foran; Robert L. Webb NEW: Matthew W. Close

Authorities

Authorities: Comment: Compendium of Non-California Authorities

Declaration

Francis A Bottini Jr Declaration: Comment: Declaration of Francis A. Bottini, Jr. with Exhibits 1-5

Memorandum: Points and Authorities

Memorandum Points and Authorities:

Motion: Consolidate

HRG 11 16 18 Motion to Consolidate and Appoint Lead Counsel: Comment: HRG 11/16/18 Motion to Consolidate and Appoint Lead Counsel

40 More Documents Available

 

Docket Entries

  • 08/16/2019
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  • Conference: Case Management - Consolidated Complaint: Judicial Officer: Walsh, Brian C; Hearing Time: 10:00 AM; Comment: (3rd CMC) Proposed Class Action. Securities Litigation. Discovery and responsive pleading deadline stayed, as of 7/16/18, when the case was deemed complex. Reassigned from TEK to BCW on 8/28/18. Consolidated Complaint filed 12/11/18; time to respond extended to 5/31/19; Answer thereto filed 5/31/19.

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  • 05/31/2019
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  • Proof of Service - Proof of Service: Comment: Proof of Service

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  • 05/31/2019
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  • Answer/Response (No Fee) - Answer to Consolidated Complaint: Comment: Defendants' Answer To Plaintiffs' Consolidated Complaint

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  • 05/10/2019
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  • Order - Order Granting Stipulation and Request for Extension of Time to Answer Consolidated Complaint: Comment: Order Granting Stipulation and Request for Extension of Time to Answer Consolidated Complaint - signed/BCW

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  • 05/09/2019
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  • Proof of Service - Proof of Service: Comment: PROOF OF SERVICE

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  • 05/09/2019
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  • Stipulation and Order - Stipulation and Request for Extension of Time to Answer Consolidated Complaint: Comment: JOINT STIPULATION AND REQUEST FOR EXTENSION OF DEFENDANTS TIME TO ANSWER PLAINTIFFS CONSOLIDATED COMPLAINT

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  • 05/03/2019
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  • Order: Submitted Matter - Order After HRG 4-26-19 Demurrer to Consolidated Complaint: Judicial Officer: Walsh, Brian C; Comment: Order After Hearing on 4/26/19 (Demurrer to the Consolidated Complaint) - signed/BCW

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  • 05/01/2019
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  • Notice - Notice CMC 8-16-19 at 10am in D1: Comment: CMC set for 8/16/19 at 10am in D1

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  • 05/01/2019
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  • Stipulation and Order - Stipulation and Protective Order: Comment: Stipulation and Protective Order - signed/BCW

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  • 05/01/2019
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  • Minute Order - Minutes Non-Criminal:

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41 More Docket Entries
  • 08/07/2018
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  • Notice - Notice CMC reset from 9-21-18 to 11-16-18: Comment: CMC reset from 9/21/18 to 11/16/18

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  • 07/26/2018
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  • Notice: Entry of Order - (2018-07-26) Notice of Entry of Order.pdf: Comment: Notice: Entry of Order

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  • 07/25/2018
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  • Proof of Service - 2018-07-25 -Proof_of_Service.pdf: Comment: Proof of Service

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  • 07/25/2018
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  • Notice - 2018-07-25-VECO_-_notice_of_appearance.pdf: Comment: Notice of Appearance

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  • 07/24/2018
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  • Notice - (2018-07-24) Notice of Payment.pdf: Comment: Notice of Payment of Complex Litigation Fee

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  • 07/16/2018
  • View Court Documents
  • Order: Deeming Case Complex - Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline: Comment: Order Deeming Case Complex and Staying Discovery and Responsive Pleading Deadline signed/TEK

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  • 07/02/2018
  • View Court Documents
  • Proof of Service: Summons DLR (Civil) - (2018-06-22) POS for Veeco.pdf: Comment: Proof of Service of Summons/Complaint

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  • 06/08/2018
  • Summons: Issued/Filed - Comment: Summons

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  • 06/08/2018
  • Civil Case Cover Sheet - Comment: Civil Case Cover Sheet

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  • 06/08/2018
  • Complaint (Unlimited) (Fee Applies) - Comment: Class Action Complaint

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Complaint Information

18CV 329690

Santa Clara - Civil

Electronically Filed ROBBINS GELLER RUDMAN by Superior Court of CA,

& DOWD LLP

JAMES 1. JACONETTE (179565) §,‘,’ ‘1’;?{{}23{";‘ ?S?,ra' 655 West Broadway, Suite 1900 -

San Diego, CA 92101 Reviewed By: R. Walker Telephone: 619/231-1058 Case #18CV329690 619/231-7423 (fax) Envelope: 2266372

jamesj@rgrdlaw.com

BOTTINI & BOTTINI, INC. FRANCIS A. BOTTINIL JR. (175783) 7817 Ivanhoe Avenue, Suite 102

La Jolla, CA 92037

Telephone: 858/914-2001 858/914-2002 (fax) fbottini@bottinilaw.com

Co-Lead Counsel for Plaintiffs and the Class [Additional counsel appear on signature page.]

SUPERIOR COURT OF THE STATE OF CALIFORNIA COUNTY OF SANTA CLARA

Lead Case No. 18CV329690

(Consolidated with No. 18CV332463 and No. 18CV332644)

I|MATT WOLTHER, Individually and on Behalf of All Others Similarly Situated,

Plaintiff,

CLASS ACTION

VS.

CONSOLIDATED COMPLAINT FOR VIOLATIONS OF THE SECURITIES ACT OF 1933

SHUBHAN MAHESHWARI, et al.,

Defendants.

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Date Action Filed: June 8, 2018 N

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Plaintiffs Matt Wolther, Iron Workers District Council of New England Pension Fund and Construction Workers Pension Trust Fund - Lake County and Vicinity (“Plaintiffs”), individually and on behalf of all others similarly situated, by Plaintiffs’ undersigned attorney, for Plaintiffs’ complaint against defendants, alleges the following based upon personal knowledge as to Plaintiffs and Plaintiffs’ own acts and upon information and belief as to all other matters based on the investigation conducted by and through Plaintiffs’ attorneys, which included, among other things, a review of U.S. Securities and Exchange Commission (“SEC”) filings by Veeco Instruments, Inc. (“Veeco” or the “Company”), Company press releases and earnings calls, and analyst and media reports about the Company. Plaintiffs believe that substantial additional evidentiary support will exist for the allegations set forth herein after a reasonable opportunity for discovery.

NATURE OF THE ACTION

1. This is a securities class action on behalf of all persons and entities who purchased or acquired shares of Veeco stock pursuant or traceable to the Company’s Registration Statement and Prospectus issued in connection with the merger of Veeco with Ultratech, Inc. (“Ultratech™) and their subsidiaries (the “Merger”). 'This action asserts claims under the Securities Act of 1933 (“1933 Act”) against Veeco and certain members of the Company’s executive officers, directors and authorized representatives.

JURISDICTION AND VENUE

2. The claims alleged herein arise under §§11, 12(a)(2) and 15 of the 1933 Act, 15 U.S.C. §§77k, 771(a)(2) and 770. This Court has original subject-matter jurisdiction under the California Constitution, Article VI, §10. Removal is barred under §22 of the 1933 Act, which explicitly states that “[e]xcept as provided in section 16(c), no case arising under this title and brought in any State court of competent jurisdiction shall be removed to any court in the United States.” See Cyan, Inc. v. Beaver

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3 The violations of law complained of herein occurred in this County, including the dissemination of Veeco stock to Ultratech shareholders residing in this County as a result of the Merger. In addition, two of the individual defendants, Gordon Hunter and Kathleen A. Bayless, reside in this County, Ultratech is headquartered in this County at 3050 Zanker Road, San Jose, California 95134, and many of the Merger negotiations and due diligence occurred in this County. Furthermore, portions of the Offering Documents for the Merger alleged herein to be false and misleading relied on information, documents and witnesses maintained in this County, or that can be found in this County.

PARTIES

1. Plaintiff Matt Wolther acquired shares of Veeco stock in exchange for Ultratech stock pursuant to the Registration Statement and Prospectus issued in connection with the Merger and has been damaged thereby.

5. Plaintiff Iron Workers District Council of New England Pension Fund acquired shares of Veeco stock in exchange for Ultratech stock pursuant to the Registration Statement and Prospectus issued in connection with the Merger and has been damaged thereby.

6. Plaintiff Construction Workers Pension Trust Fund - Lake County and Vicinity acquired shares of Veeco stock in exchange for Ultratech stock pursuant to the Registration Statement and Prospectus issued in connection with the Merger and has been damaged thereby.

7. Defendant Veeco Instruments, Inc. is a corporation which designs and manufactures thin film equipment. Veeco’s equipment is used to make electronic devices, including light emitting diodes (“LEDs”), micro-electromechanical systems (“MEMS”), wireless devices, power electronics, hard disk drives and semiconductor devices. Veeco’s products are sold to semiconductor and advanced packaging device manufacturers. Veeco conducts substantial business in the United States, including within this County, through its now wholly-owned subsidiary Ultratech, which is headquartered in San Jose, California. Veeco is subject to liability as an issuer, seller and control person, and all the material misstatements and solicitations of Plaintiffs and the Class by the Individual Defendants was done in their official capacities and on behalf of Veeco. Veeco designated numerous personnel in the working group for the Merger, including its Chief Executive Officer (“CEO”), Chief Financial Officer (“CFO”).

and other executives, all of whom not only reviewed and approved the Offering Documents, but also participated in making presentations according to a PowerPoint that were reviewed and approved by them and other Veeco personnel. Veeco was motivated by the obvious financial implications of the Merger, including increasing the book value of Veeco and being able to issue marketable securities to further fund its capital structure.

8. Defendant Shubham Maheshwari (“Maheshwari”) served as CFO of Veeco at the time of the Merger. Defendant Maheshwari signed or authorized the signing of the false and misleading Registration Statement. As one of Veeco’s executives in the Merger working group, Maheshwari reviewed and approved, and participated in making statements in the Offering Documents, the false and misleading statements of which are alleged at §949-50. On behalf of Veeco, Maheshwari also reviewed, edited and approved the Merger’s PowerPoint presentation incorporated into the Registration Statement. Maheshwari was motivated by the financial implications of the Merger, given his financial stake in Veeco. As of the Merger, Maheshwari held over 1.4 million Veeco common shares pursuant to vested and unvested options, including 54,000 shares pursuant to exercisable options, with a strike price of $33.32 per share.

9. Defendant John R. Peeler (“Peeler”) served as Chairman, CEO and a director of Veeco at the time of the Merger. Defendant Peeler signed or authorized the signing of the false and misleading Registration Statement. As one of Veeco’s executives in the Merger working group, Peeler reviewed and approved, and participated in making statements in the Offering Documents, the false and misleading statements of which are alleged at §949-50. On behalf of Veeco, Peeler also reviewed, edited and approved the Merger’s PowerPoint presentation incorporated into the Registration Statement. Peeler was motivated by the financial implications of the Merger, given his financial stake in Veeco. As of the Merger, Peeler held over 2.7 million Veeco common shares pursuant to vested and unvested options, including over 275,000 shares pursuant to exercisable options, with strike prices between $30.47 and $51.70 per share.

10. Defendant John P. Kiernan (“Kiernan”) served as Senior Vice President, Finance and Corporate Controller (Principal Accounting Officer) of Veeco at the time of the Merger. Defendant Kiernan signed or authorized the signing of the false and misleading Registration Statement. As one of AN

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making statements in the Offering Documents. On behalf of Veeco, Peeler also reviewed, edited and approved the Merger’s PowerPoint presentation incorporated into the Registration Statement, the false and misleading statements of which are alleged at §949-50. Kiernan was motivated by the financial implications of the Merger, given his financial stake in Veeco. As of the Merger, Kiernan held over 430,000 Veeco common shares pursuant to vested and unvested options, including approximately 50,000 shares pursuant to exercisable options, with strike prices between $30.47 and $51.70 per share.

11. Defendant Kathleen A. Bayless (“Bayless”) served as a director of the Company at the time of the Merger. Defendant Bayless signed or authorized the signing of the false and misleading Registration Statement. Defendant Bayless is a resident of San Jose, California, in Santa Clara County. Bayless was motivated by the financial implications of the Merger, given her financial stake in Veeco. As of the Merger, Bayless beneficially owned over 18,000 Veeco common shares pursuant to vested and unvested options, including approximately 50,000 shares pursuant to exercisable options, with strike prices between $30.47 and $51.70 per share.

12. " Defendant Richard A. D’ Amore (“D’Amore”) served as a director of the Company at the time of the Merger. Defendant D’ Amore signed or authorized the signing of the false and misleading Registration Statement. D’ Amore was motivated by the financial implications of the Merger, given his financial stake in Veeco and hope to increase the value of his holdings in Veeco. As of the Merger, D’ Amore beneficially owned over 102,000 Veeco common shares.

13. Detendant Gordon Hunter (“Hunter”) served as a director of the Company at the time of the Merger. Defendant Hunter signed or authorized the si gning of the false and misleading Registration Statement. Defendant Hunter is a resident of Los Alto Hills, California, in Santa Clara County. Hunter was motivated by the financial implications of the Merger, given his financial stake in Veeco and hope to increase the value of his holdings in Veeco. As of the Merger, Hunter beneficially owned over 36,000 Veeco common shares.

14. Detfendant Keith D. Jackson (“Jackson™) served as a director of the Company at the time of the Merger. Defendant Jackson signed or authorized the signing of the false and misleading

Registration Statement. Jackson was motivated by the financial implications of the Merger, given his financial stake in Veeco and hope to increase the value of his holdings in Veeco. As of the Merger, Jackson beneficially owned over 32,000 Veeco common shares.

15. Defendant Peter J. Simone (“Simone”) served as a director of the Company at the time of the Merger. Defendant Simone signed or authorized the signing of the false and misleading Registration Statement. Simone was motivated by the financial implications of the Merger, given his financial stake in Veeco. As of the Merger, Simone beneficially owned over 31,000 Veeco common shares

16. Defendant Thomas St. Dennis (“St. Dennis™) served as a director of the Company at the time of the Merger. Defendant St. Dennis signed or authorized the signing of the false and misleading Registration Statement and is a resident of California. St. Dennis was motivated by the financial implications of the Merger, given his financial stake in Veeco. As of the Merger, St. Dennis beneficially owned over 18,000 Veeco common shares.

17. The defendants referenced above in §98-16 are collectively referred to as the “Individual Defendants.” The Individual Defendants signed or authorized the signing of the Registration Statement used to conduct the Merger. The defendants referenced above in §98-10 are executives of Veeco who pitched investors to sell the Merger at the behest of the Company by participating in the making of presentations alleged herein, the statements in which they reviewed and approved, and in so doing they participated in the solicitation and sale of Veeco stock to shareholders of Ultratech in the Merger. Those defendants are sometimes referred to herein as the “Executive Defendants.” Defendant Veeco and the Individual Defendants are strictly liable for the false and misleading statements in the Registration Statement.

CLASS ACTION ALLEGATIONS

19. Plaintiffs bring this action as a class action pursuant to §382 of the California Code of Civil Procedure on behalf of a class consisting of all persons or entities who purchased or acquired stock of Veeco pursuant or traceable to the Company’s Registration Statement and Prospectus (Registration No. 333-216661) issued in connection with the Merger and who were damaged thereby (the “Class”). Excluded from the Class are defendants and their families, the officers, directors and affiliates of the defendants, at all relevant times, members of their immediate families and their legal representatives, heirs, successors or assigns and any entity in which defendants have or had a controlling interest.

20. The members of the Class are so numerous that joinder of all members is impracticable. Veeco’s stock is actively traded on the NASDAQ Exchange under the ticker symbol “VECO” and millions of shares were sold in the Merger. While the exact number of Class members is unknown to Plaintiffs at this time and can only be ascertained through appropriate discovery, Plaintiffs believe that there are thousands of members in the proposed Class. Record owners and other members of the Class may be identified from records maintained by the Company or its transfer agent and may be notified of the pendency of this action by mail, using the form of notice similar to that customarily used in securities class actions.

21. Plaintiffs’ claims are typical of the claims of the members of the Class, as all members of the Class are similarly affected by defendants’ wrongful conduct in violation of federal law as complained of herein.

22. Plaintiffs will fairly and adequately protect the interests of the members of the Class and have retained counsel competent and experienced in class and securities litigation.

23. Common questions of law and fact exist as to all members of the Class and predominate over any questions solely affecting individual members of the Class. Among the questions of law and fact common to the Class are:

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(b) whether statements made by defendants to the investing public in the Offering Documents were materially false and misleading or misrepresented or omitted material facts about the Merger; and

(c) the proper measure of damages.

24, A class action is superior to all other available methods for the fair and efficient adjudication of this controversy since joinder of all members is impracticable. Furthermore, as the damages suffered by individual Class members may be relatively small, the expense and burden of individual litigation make it impracticable for members of the Class to individually redress the wrongs done to them. There will be no difficulty in the management of this action as a class action.

SUBSTANTIVE ALLEGATIONS

25. The Registration Statement described Veeco as follows:

Veeco designs, develops, manufactures, markets, and supports thin film equipment to

meet the demands of key global trends such as improving energy efficiency, enhancing

mobility, and increasing connectivity. Veeco’s equipment is used to make electronic

devices which enable these trends, including light emitting diodes (“LEDs”), micro- electromechanical systems (“MEMS”), wireless devices, power electronics, hard disk

drives (“HDDs”), and semiconductor devices. Veeco’s products are sold to

semiconductor and advanced packaging device manufacturers, and Veeco may also

license its technology to its customers or partners.

26. Ultratech is a recognized leader of lithography products for advanced packaging applications and for LEDs, and is a pioneer for laser spike anneal technology used for the production of semiconductor devices. In addition, Ultratech offers wafer inspection solutions, leveraging its proprietary coherent gradient sensing technology, which address a wide variety of semiconductor applications.

27. At the time of the Merger, Ultratech was the dominant vendor in the growing semiconductor advanced packaging market, with a promise of strong earnings and revenue synergies. As a result, Ultratech was a very promising merger candidate for Veeco. The Registration Statement claimed that “Veeco develops highly differentiated, ‘best-in-class’ equipment for critical performance steps in thin film processing. Veeco’s products provide leading technology at low cost-of-ownership.

Core competencies in advanced thin film technologies and decades of specialized process know-how

help Veeco stay at the forefront of these rapidly advancing industries.” According to the Registrationpage 8 can't be parsed

plan. Veeco stated that its gross margins exceeded expectations, having improved by 70 basis points. In announcing Veeco’s second quarter 2016 results, defendant Peeler stated:

“IW]e have taken decisive steps aimed at improving our through-cycle profitability by

reducing fixed costs and streamlining our operations. This plan will enable us to lower

our quarterly adjusted EBITDA breakeven level to between $75 and $80 million in

revenue, without compromising our ability to capitalize on growth opportunities.

Looking ahead, we see positive indications that should lead to a pick-up in demand for

our Metal Organic Chemical Vapor Deposition (‘MOCVD’) equipment over the near

term....”

Peeler announced that bookings had increased slightly to $68 million, supported by increased orders in the Company’s advanced packaging business.

30. In the August 1, 2016 Form 8-K, defendant Peeler caused Veeco to state: “The restructuring plan involves the consolidation of three manufacturing operations and streamlining of field and administrative functions. The plan is expected to be substantially completed by the end of 2016 and to result in annualized savings of approximately $20 million starting in the first quarter of 2017.”

31. Inresponse to these encouraging statements and Veeco’s improving financial condition, which analysts were told would “‘lead to a pick-up in demand for [Veeco’s] Metal Organic Chemical Vapor Deposition (“MOCVD”) equipment over the near term,”” Veeco’s stock rallied, climbing to above $29.00 per share by the end of 2016.

32. On February 2, 2017, Veeco and Ultratech entered into the Agreement and Plan of Merger (“Merger Agreement”) pursuant to which Veeco agreed to acquire Ultratech by way of amerger of a merger subsidiary with and into Ultratech, with Ultratech, as the surviving corporation, becoming a wholly-owned subsidiary of Veeco.

33. In announcing the Merger, defendant Peeler stated:

“The strategic combination will establish Veeco as a leading equipment supplier in the high growth Advanced Packaging industry. Ultratech’s leadership in lithography together with Veeco’s Precision Surface Processing (PSP) solutions form a strong technology portfolio to address the most critical Advanced Packaging applications. We believe our complementary end market exposure and customer relationships will create the ideal platform to accelerate growth . . . . Ultratech is a great fit with our strategy to profitably grow our business and diversity our revenue. We

expect this transaction to be immediately accretive to adjusted EBITDA and non- GAAP EPS.” 34, Pursuant to the Merger Agreement, Ultratech shareholders received the right to receive, for each Ultratech share they owned, an amount equal to: (i) $21.75 in cash without interest; (ii) 0.2675 of a share of Veeco stock; and (iii) cash in lieu of fractional shares of Veeco common stock.

35. Ultratech held a special meeting of its stockholders to vote on matters related to the proposed merger. The special meeting was held on May 25, 2017, at 2:00 p.m., local time, at the offices of O’Melveny & Myers LLP, located at 2765 Sand Hill Road, Menlo Park, California 94025.

36. To solicit Ultratech shareholders to vote in favor of the Merger, Veeco and the Individual Defendants prepared, reviewed and signed a Registration Statement on Form S-4 with the SEC on March 13, 2017 and an Amendment to the S-4 Registration Statement on April 21,2017 (also referred to herein as the “Registration Statement™). The Registration Statement informed Ultratech shareholders that:

This proxy statement/prospectus, which forms part of a registration statement on

Form S-4 filed here as amended with the United States Securities and Exchange

Commission (the “SEC”) by Veeco, constitutes a prospectus of Veeco under Section 5

of the Securities Act of 1933, as amended, . .. with respect to the shares of Veeco

common stock to be issued pursuant to the merger. . . .

You should rely only on the information contained in or incorporated by reference into this proxy statement/prospectus. No one has been authorized to provide

you with information that is different from that contained in, or incorporated by

reference into, this proxy statement/prospectus. Veeco and Ultratech take no

responsibility for, and can provide no assurances as to the reliability of, any other information that others may give you and, if given. such information must not be relied

on as having been authorized.

37. Based on the false and misleading Registration Statement, Ultratech shareholders voted to approve the Merger, which was completed on May 26, 2017.

38. The Offering Documents were negligently prepared by Veeco and the Individual Defendants, and as a result contained material misrepresentations and omissions.

39. This impression was misleading, as indicated herein, because the Offering Documents failed to disclose material facts existing at the time of the filing of the Prospectus alleged herein, including that Veeco was experiencing delays in orders for its and Ultratech’s advanced packaging

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Equipment Inc. (‘“AMEC”), regarding intellectual property and patent infringement, and that these material problems, events and trends would adversely affect its rate of growth and financial results.

40. Veeco, which had previously been the dominant player in Asia in its market, had seen its market share and margins in Asia decline as competition entered the market. AMEC was one of the Company’s biggest competitors and had gained market share in Asia by undercutting Veeco’s prices and selling Veeco’s technology.

41, Significantly, the Offering Documents did not disclose that AMEC was only able to gain market share and undercut Veeco’s prices by infringing Veeco’s intellectual property, that Veeco and AMEC were in an acrimonious dispute about intellectual property and patents, that AMEC, which was 25% owned by the Chinese government and thus had significant political and economic pull in China, intended to aggressively retaliate against Veeco in China in response to Veeco’s allegations of intellectual property infringement, and that these significant disputes were likely to continue to erode Veeco’s market share and margins in its key Chinese market.

42. The Offering Documents falsely stated that no third party had infringed Veeco’s intellectual property. In the “representations and warranties” clause of the Merger Agreement, in §5.14. “Intellectual Property,” Veeco represented that:

Section 5.14 Intellectual Property

(a) Parent and/or its Subsidiaries have valid title and ownership interest in the material Parent Owned [Intellectual Property], free and clear of any Liens (other than Permitted Liens).

(b) To the knowledge of the Parent, Parent and its Subsidiaries own, license or otherwise have the right to use all Intellectual Property used in the operation of their businesses as currently conducted, except as would not reasonably be excepted to result in, a material liability for or restriction on the Parent and its Subsidiaries, taken as a whole.

(c) As of the date of this Agreement, there are no legal disputes or claims pending or, to the knowledge of Parent, threatened alleging infringement, misappropriation or any other violation of any Intellectual Property of any Third Party by Parent or any of its Subsidiaries that would reasonably be expected to have a Parent Material Adverse Effect.

(d) To the knowledge of Parent, none of Parent or its Subsidiaries has infringed, misappropriated or otherwise violated any Intellectual Property of any Person, except for such infringements, misappropriations or violations that would not whn B W N

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(e) To the knowledge of Parent, no Parent Owned IP has been infringed, misappropriated or otherwise violated by any Third Party, except for such infringements, misappropriations or violations that would not reasonably be expected to have, individually or in the aggregate, a Parent Material Adverse Effect.

43. Those statements were false and misleading and omitted material facts. At the time of the Merger, Veeco was in fact asserting numerous patent and intellectual property violations being exploited by one of its major competitors, AMEC. After contentious private discussions broke down, on April 12,2017, Veeco filed a patent infringement complaint in the U.S. District Court for the Eastern District of New York (“EDNY”) against AMEC’s primary wafer carrier supplier — SGL Carbon, LLC and SGL Carbon SE (collectively, “SGL”) — alleging infringement of patents relating to wafer carrier technology used in MOCVD equipment (the “EDNY lawsuit™). The complaint alleged that SGL was infringing Veeco’s patents by making and selling certain wafer carriers to AMEC. Veeco’s lawsuit sought an injunction which included a request to prohibit SGL from selling wafer carriers for use in MOCVD systems made by AMEC. Contrary to what the Registration Statement stated, there were in fact material adverse infringements then occurring — infringements so significant litigation was justified. Indeed the infringements were so significant that AMEC’s competition against Veeco was then materially adversely affecting Veeco’s business, as later revealed.

44, The Registration Statement also touted that Veeco benefits from the regulatory environment in China, with “the Chinese Government . .. provid[ing] various incentives” and “subsidies,” which “have enabled and encouraged certain [Veeco] customers in [China] to purchase more of our [products] than [they] might have purchased without these subsidies.” Those statements were misleading for they omitted material facts regarding the Chinese government’s role in the Chinese market. Atthat time, Veeco’s primary competitor in the MOCVD market in China, AMEC, was selling Veeco’s technology which had been stolen by AMEC’s suppliers. AMEC was insulated from this conduct, for the Chinese government largely owned it. Not only was Veeco losing significant market share and sales as a result of this, it was apparent to Veeco that it would be hard pressed to prevent this conduct from occurring in China and that retaliation could occur if it tried to stop it. One of Veeco’s 45. The Registration Statement also repeated pages and pages of generalized “possible” “Risk Factors” related to each company in the Merger, the Merger and the combined companies, stating that “if’ a “risk” occurred at some point in the future, it “may” or “could” adversely affect the Company. But these statements were false and misleading and omitted material facts demonstrating that the purported “risks” that “could” occur in the future had already materialized at the time of the Merger. In this section of the Registration Statement, the reader’s attention was diverted to litigation “related to the merger,” where nearly half a page of text was expended describing the litigation and its risks even though the Registration Statement concluded “Ultratech and Veeco believe that the claims asserted in these actions are without merit.” This section was materially misleading, for it omitted material facts related to impending litigation that was much more threatening to the viability of the combined entity, namely that regarding the infringement of intellectual property rights of Veeco.

46. The Registration Statement continued with generalized “risk factors,” including generalized “Risk Factors Related to Veeco Following the Merger.” There, the Registration Statement diverted the reader’s attention with a number of purported conditions related to the “integration process” that could “adversely affect Veeco’s ability to maintain relationships with customers, suppliers, employees and other partners” following the merger, including the “loss of customers.” These statements were materially misleading because they omitted then-present material facts that were significantly harming Veeco’s relationships with customers and suppliers. Indeed, suppliers of one of Veeco’s primary competitors (AMEC) were infringing on Veeco’s wafer carrier technology patents critical to MOCVD equipment, which was materially harming Veeco’s MOCVD equipment sales in China. Also, due to the availability of similar technology in part a result of the patent infringement, Veeco’s customers were pursuing dual supplier strategies that were decimating Veeco’s sales.

47. The Registration Statement also stated that the “risks and uncertainties described” in its “Risk Factors” were “not the only risks and uncertainties the parties may face,” and it directed the reader to “other documents incorporated by reference . . . on page 143 of this . . . prospectus.” There the Registration Statement stated certain incorporated documents “contain important information about S~

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48. The Registration Statement also stated that the “risks and uncertainties described” in its “Risk Factors” were “not the only risks and uncertainties the parties may face,” and it directed the reader to “other documents incorporated by reference . . . on page 143 of this . . . prospectus.” There the Registration Statement stated “[t]his proxy statement/prospectus incorporates by reference” certain documents that “contain important information about Veeco, its financial condition or other matters,” and included a number of documents that touted the Merger. The Registration Statement further stated “[t]his information is considered to be a part of this proxy statement/prospectus.”

49. The Registration Statement incorporated a Report on Form 8-K dated February 2, 2017, which contained a PowerPoint presentation lauding the merger. It described the merger as “A Compelling Transaction — Strategically and Financially,” and stated that Veeco and Ultratech had “Complementary Markets, Cutting Edge Technologies,” which created a “Winning Combination.” Likewise, the presentation stated the merger was “A Compelling Combination for All Stakeholders” asserting that the combined company was “[b]etter positioned to continue addressing customers’ critical needs” and had “[c]Jomplementary skills to deliver innovative and cost-effective solutions.” Those statements were false and misleading and omitted material facts. The transaction was not a “[w]inning [cJombination” due to “[c]omplementary [m]arkets™ and “[c]utting [e]dge [tJechnologies,” for Veeco was being ravaged by intellectual property infringement as one of its primary competitors (AMEC) was selling its technology to Veeco customers and prospects. Indeed, Veeco was being substantially harmed because the MOCVD market in China was vulnerable to ruthless exploitation of stolen intellectual property by Chinese competitors. That was far from a “[cJomplementary [m]arket” and the so-called “[c]utting [e]dge [t]echnology” that purportedly provided Veeco an advantage was becoming ubiquitous as AMEC sold it to Veeco potential and actual customers. This in combination with dual seller strategies was significantly decreasing Veeco’s sales and eroding Veeco’s market share.

50. The Registration Statement incorporated a Report on Form 8-K dated February 16, 2017, which contained a PowerPoint presentation asserting the company was “Executing Well Against Strategic Objectives,” “Strengthening our Core,” “Enhancing Profitability,” and “Positioning for Profitable Growth.” According to the presentation, the company was experiencing “[s]olid sales across o N N n B

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“Veeco is poised to benefit as market leader in MOCVD?” stated the company was “[s]trengthening leadership in MOCVD,” and trumpeted the company was winning sales. In a Report on Form 8-K dated the same day, and that was also incorporated into the Registration Statement, a transcript recorded defendant Peeler’s statements to similar effect. When asked about competition in the Chinese market, Peeler stated that the competition was “normal,” the “dual supplier approach™ was the “normal approach” and there was nothing “new.” Those statements were false and misleading and omitted material facts. Veeco was not “poised to benefit as market leader in MOCVD,” and the notion that the competition in that market was “normal” and there was nothing “new” to report was absolutely false. Veeco was poised to be exploited, for its own supplier, SGL was taking Veeco’s technology and selling it to competitor AMEC. Competitor AMEC was selling Veeco’s stolen technology to Veeco customers and prospects, which was having a significantly negative effect on Veeco’s sales and market share. Indeed, when Veeco began to reveal this information later in the year (when it could no longer be avoided) securities analysts and investors recoiled and Veeco’s stock price plummeted.

51. The document immediately incorporated into the Registration Statement was Veeco’s “Annual Report on Form 10-K,” which had been filed with the SEC just two months prior (the “incorporated 10-K™). The incorporated 10-K stated Veeco faced “substantial competition” and identified “[s]ignificant factors for customer selection of our tools,” as well as AMEC as one of Veeco’s primary competitors. These statements were false and misleading and omitted then-present material facts, for a significant factor then influencing Veeco’s customer decisions to go with competitors’ products (including AMEC) was customer dual supplier strategies then being implemented due in part to the existence of similar technology from competitors. As a result, dual supplier strategies then being implemented were decimating Veeco’s sales.

52. The incorporated 10-K, like the Registration Statement, repeated pages and pages of oeneralized possible “Risk Factors” that it “may” or “could” adversely affect the Company in the “Future” if they occurred. But these statements were false and misleading and omitted material facts demonstrating that the purported “risks” that “may” or “could” occur in the future had already o N A

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53. The incorporated 10-K stated as a “risk factor[]” the possible “rescheduling and, to a lesser extent, cancellations of orders” due to potential “volatile” “market conditions” including “reduced demand,” “increased price competition,” “increased competition from sellers of used equipment,” and “disruptions in our supply chain.” It also stated “reduction or elimination of foreign government subsidies and economic incentives may adversely affect the future order rate for our MOCVD equipment . . . [which] could result in order cancellations™ or “a reduction in order backlog.” It also cited the possible “cyclicality” of industries and possible technological obsolescence or “unexpected product defects” as being a “risk” to order “demand.” But those statements were misleading and omitted material facts because in reality customer orders were then being significantly reduced as aresult of Veeco’s customers implementing dual supplier strategies as similar technology to Veeco’s was made available by competitors. Indeed, AMEC, largely owned by China, was selling Veeco’s technology that was stolen by AMEC’s suppliers. The problem was not “cyclicality,” “disruptions in [the] supply chain” or “competition from sellers of used equipment” — it was the fact Veeco’s technology had been stolen and was being sold by a major competitor (AMEC) that was insulated in the Chinese market by the Chinese government. Indeed, the foreign government “risk” was not about “reduction or elimination of foreign government subsidies” — it was about the fact a competitor exploiting Veeco’s technology was being backed by the Chinese government — an insurmountable foe if Veeco sought to force AMEC from stopping those practices in China.

54. The incorporated 10-K stated as a “risk factor[]” Veeco’s “significant competition” because of new “innovative” product “introductions” by unspecified “competitors” or “local competitors” or “intensified price competition.” According to the incorporated 10-K the “failure of our outsourcing partners to perform as anticipated” “could” affect Veeco’s “ability to bring new products to market.” “If we do not effectively manage our outsourcing strategy or if third party providers do not perform as anticipated, we may not realize the benefits of productivity improvements, and we may experience operational difficulties, increased costs, manufacturing and/or installation interruptions or delays, inefficiencies in the structure and/or operation of our supply chain, loss of intellectual property rights, quality issues, increased product time-to-market and/or inefficient allocation of human resources, false and misleading and omitted then-existing material facts because competition had already effectively stolen Veeco’s technology through a supplier infringing on Veeco’s patent rights and was significantly negatively impacting Veeco’s business as a result. Indeed, Veeco’s supplier SGL had already stolen Veeco’s technology and was selling it to competitor AMEC. That and customer dual supplier strategies was what was hurting Veeco — nof new “innovative” product introductions by competitors, merely “price competition” or “outsourcing” operational or productivity issues. Because AMEC had a product that was based on Veeco’s technology, Veeco was losing sales, and because customers were implementing dual supplier strategies when they had historically relied on only Veeco, Veeco was losing sales.

55. Theincorporated 10-K stated as a “risk factor|]” the possibility that Veeco’s “intellectual property rights may be circumvented, invalidated, or rendered obsolete by the rapid pace of technological change, or through efforts by others to reverse engineer our products or design around patents that we own.” It also stated Veeco’s

outsourcing strategy requires that we share certain portions of our technology with our

outsourcing partners, which poses additional risks of infringement and trade secret

misappropriation. Infringement of our rights by a third party, possibly for purposes of developing and selling competing products, could result in uncompensated lost market

and revenue opportunities.

Those statements were false and misleading and omitted material facts. “Infringement” was not a possibility that “could result in” negative consequences. It was then already happening as of the incorporated 10-K and Merger. Veeco’s supplier, SGL, had already stolen Veeco’s technology and was selling it to competitor AMEC. And, even worse, AMEC — backed by the Chinese government — was one of Veeco’s primary competitors, and was selling Veeco’s technology to Veeco’s customers and prospects. Veeco’s sales were suffering significantly because of that.

56. Due to the failure to resolve the parties’ ongoing material intellectual property disputes, on July 13,2017, less than three months after the Registration Statement was declared effective, AMEC filed a patent infringement complaint against Veeco Instruments Shanghai Co., Ltd. (*Veeco Shanghai”) with the Fujian High Court in China, alleging that Veeco’s MOCVD systems infringed a Chinese utility model patent relating to the synchronous movement engagement mechanism in a 57. The Offering Documents were materially false and misleading because, in addition to the reasons stated above, they omitted the following material facts:

(a) that Veeco was already experiencing, at the time of the Merger, delays in orders for its and Ultratech’s advanced packaging business and increased competition in China in Veeco’s MOCVD market;

(b) that Veeco was already experiencing, at the time of the Merger, pricing pressure and reduced margins in its MOCVD business in China, which trends were expected to persist and worsen going forward;

(c) that Veeco was already in an acrimonious dispute with its largest competitor in China, AMEC, and its supplier, SGL, regarding intellectual property and patent infringement, which was likely to result in lawsuits and imperil Veeco’s business in China;

(d) that AMEC was taking advantage of its infringement of Veeco’s intellectual property and patents to undercut Veeco’s prices in China in the MOCVD market, and that this conduct would continue to lead to increased pricing and reduced margins for Veeco in China;

(e) that AMEC, which is 25% owned by the Chinese government, would likely retaliate against Veeco in response to Veeco’s lawsuit against SGL (a supplier to Veeco that was stealing Veeco’s technology and selling to Veeco’s competitor AMEC), and that AMEC was likely to win any related dispute in China given the Chinese government’s ownership interest in AMEC; and

(H) that, as a result of (a)-(e), the Company’s business and financial prospects were materially misrepresented in the Offering Documents.

58. Moreover, Item 303 of SEC Regulation S-K, 17 C.F.R. §229.303(a)(3)(i1), requires defendants to “[d]escribe any known trends or uncertainties that have had or that the registrant reasonably expects will have a material favorable or unfavorable impact on the sales or revenues or income from continuing operations.” Veeco was experiencing increasing competition in China, including competition that was directly supported by the Chinese government, and delays in orders in the advanced packaging business and increased competition were likely to result in a further slowdown in the Company’s rate of growth of revenues. Indeed, Veeco’s technology was being stolen and sold by 59, Similarly, Item 503 of SEC Regulation S-K, 17 C.F.R. §229.503, requires, in the “Risk Factors” section of registration statements and prospectuses, “a discussion of the most significant factors that make the offering speculative or risky” and requires each risk factor to “adequately describe[] the risk.” The failure of the Registration Statement to disclose the facts listed in §57 and alleged herein at §939-56 violated 17 C.F.R. §229.303(a)(3)(ii), because these undisclosed facts would (and did) have an unfavorable impact on the Company’s sales, revenues and income from continuing operations. This failure also violated 17 C.F.R. §229.503 because these specific risks were not adequately disclosed, or not disclosed at all, even though they were some of the most significant factors that made an investment in Veeco stock speculative or risky.

60. The Merger was completed on May 26, 2017. As a result of the Merger, Veeco issued approximately 7,929,357 shares to Ultratech shareholders. On the first trading day, the Veeco stock issued in the Merger closed at $32.00 per share, representing over $253 million in total market value.

61. By December 8, 2017, just over six months after the Merger, Veeco’s stock declined to just $11.90 per share, 62.8% less than the Merger price, while during the same time the Dow Jones

Industrial Average gained 15.96%, as reflected in the following chart: Veeco Instruments, Inc. vs. S&P Small Cap 600 Index

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OO0 9 N ADDITIONAL FACTS DEMONSTRATING MATERIALITY

62. The facts omitted from the Registration Statement were material, as demonstrated by the response of investors and analysts as the omitted information began to be revealed. On August 3,2017, after the market closed, Veeco had a conference call with analysts to discuss its second quarter 2017 earnings. During the call, defendant Maheshwari, Veeco’s CFO, stated:

[ W]e are guiding revenues in the range of $125 million to $145 million. This is lower

than previously expected .... [W]e are seeing a temporary pause in the advanced

packaging market. This has resulted in several Ultratech advanced packaging

lithography tool shipments pushed out of Q3, which is impacting the quarter by approximately $15 million in revenue. During the August 3, 2017 call, defendant Peeler, the Company’s CEO, disclosed that “we are seeing signs of more competition in China [in the MOCVD market]” and that “[w]e have had some shipments push out and orders slow down for our advanced packaging lithography products over the last few months.”

63. Defendants’ revelations of increased competition in the MOCVD market and deferred orders from its customers in its advanced packaging business startled analysts, who were very concerned about Veeco’s financial results even though the results came in within consensus analyst expectations. The very first question from an analyst during the question and answer session that followed defendants’ prepared remarks was from an analyst who wanted to know more about increased competition in China in the MOCVD market:

[Sreekrishnan Sankar, BofA Merrill Lynch:] First and foremost, you guys mentioned about the competition in China on the MOCVD front. Can you elaborate

more on it? Because it seems like your largest customer in China, your share might be

weakening. And where is your share today and where do you think it might end up

being exiting 2017 for the MOCVD until now?

[Peeler:] Sure, Krish. So first of all, we’ve seen the China market heating up.

And there are more purchases from a variety of both first tier and second tier customers.

These customers have wanted to have two — a dual supplier approach for a long time.

And so they have been purchasing from Veeco, but there have also been some

purchases from competitors . . . obviously, there is a competitive battle going on.

64. Analysts also were concerned about Veeco’s disclosure that it had been experiencing delayed orders in its advanced packaging business. Inresponse to a question from an analyst, defendant

Peeler admitted the problem and stated that Veeco did not have visibility as to when the problem would 9

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[Sreekrishnan Sankar:] John, you mentioned about the advanced packaging push outs for Ultratech. Do you expect that to revenue at some — or, like, be shipped sometime in Q4 this year? Or do you think it’s more pushed out into next year?

[Peeler:] We’ve had some customers that were previously going to take product in Q3, push out to Q4. And so we have seen something of a pause. If you remember, we had very strong shipments in the second half of 2016 and Q1 0f2017. So [ think there’s a little bit of a digestion going on. We think the market will bounce back, but the timing’s little unclear at this point.

[Maheshwari:]| Krish, I'd also add that on the advanced packaging side and Ultratech, we get much less visibility. So the visibility into Q4 is less at this time.

¥ * *

[ Yeuk-Fai Mok, Needham & Company:] Just a follow-up on Krish’s question on advanced packaging. . . . [I]n terms of push out, anyway you can cost size that for us to kind of give us a better way to think about the factor?

[Peeler:] Sure, Edwin. As we mentioned, in Q3, we believe the impact of push out is about $15 million. Not sure if that answers your question, but that gives you a quantification of what we said.

65. During the conference call, defendant Peeler conceded in response to a question from an analyst that the increased competition in China was forcing Veeco to reduce its prices:

[Henry Constantine Elder, Goldman Sachs Group Inc.:] So with the competition in China, would you expect any impact on your own pricing if you try to defend market share?

[Peeler:] Yes, well, it’s obviously a more competitive market, so there is price pressure.

66. In response to this adverse information, and notwithstanding the fact that Veeco’s results for the second quarter of 2017 came in within consensus expectations, Veeco’s stock tanked, falling 24% on unusually heavy volume of 3 million shares, almost five times its normal volume. The stock, which had closed at $28.80 on August 3, 2017, closed at $21.85 on August 4, 2017.

67. On October 24, 2017, analyst KeyBanc Capital Markets (“KeyBanc”) downgraded shares of Veeco, citing a triple threat in the Company’s MOCVD business: share loss, pricing risk and potential market slowdown in 2018. Analysts Daniel Baksht and Weston Twigg said their checks with competitors and a component supplier for MOCVD equipment had left them worried about the competitive dynamics in the Company’s MOCVD business. The analysts said this would:

1. Have a sustainable impact on Veeco’s share.

2. Drive downside risk to pricing. 3. Set up market-slowdown risk in 2018.

68. Inits downgrade on Veeco, KeyBanc said it was unlikely Veeco could regain market share in 2018 up to its 2016 levels with its newly introduced EPIK 868 MOCVD systems, given the price-competitive environment and the recent success of new entrants such as AMEC and Tang Optoelectronics Equipment Co. Ltd. KeyBanc noted that these companies had achieved more than 50% market share for GaN-based MOCVD systems in China in 2017 from low-single-digit share in 2016.

69. In response to KeyBanc’s downgrade, Veeco stock dropped 13.8% on extremely heavy volume of 1.44 million shares, to close at $17.60 by October 25, 2017.

70. OnNovember 2,2017, the EDNY granted Veeco’s motion for a preliminary injunction prohibiting SGL from shipping wafer carriers using Veeco’s patented technology without Veeco’s express authorization. On November 16, 2017, the EDNY denied SGL’s motion to suspend the preliminary injunction prohibiting SGL’s sale of wafer carriers for use in MOCVD systems made by AMEC.,

71. OnNovember 3, 2017, Veeco filed its third quarter 2017 financial results and update for the period ended September 30, 2017 on Form 10-Q. The Form 10-Q stated that Veeco generated revenues of $131.9 million; generally accepted accounting principles (“GAAP”) net loss of $21.9 mullion, or $0.47 per share; and Non-GAAP net income of $4.3 million, or $0.09 per diluted share.

72. When Veeco reported its third quarter 2017 financial results, it also issued a press release

providing the following guidance for the fourth quarter 2017;

s Revenue is expected to be in the range of $135 million to $155 million GAAP net loss is expected to be in the range of ($15) million to ($8) million

o Non-GAAP operating income is expected to be in the range of $5 million to $12 million

o GAAP earnings (loss) per share are expected to be in the range of ($0.33) to ($0.17)

. Non-GAAP earnings (loss) per share are expected to be in the range of

$0.00 to $0.16

73. Based on Veeco’s reported results and financial guidance, Veeco stock declined further,

falling to just $16.30 per share on November 3, 2017. W

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74. Then, on December 7, 2017, after the market closed, Veeco issued a press release entitled “Veeco Provides Update on Patent Litigation” regarding its patent litigation with AMEC. In the press release, Veeco disclosed that “the Fujian High Court issued a ruling . . . applicable in China, that requires Veeco Shanghai to stop importing, making, selling and offering to sell Veeco EPIK 700 model MOCVD systems which contain the accused infringing synchronous movement engagement mechanism covered by AMEC utility model patent ZL 201220056049.5 and wafer carriers used as supplies for the EPIK 700 MOCVD system.”

75. Inresponse to this news, Veeco’s stock tanked, falling 18.9% from a closing price of $14.65 on December 7, 2017 to $11.90 on December 8, 2017, on extremely heavy volume of over 6.5 million shares, compared to volume of only 574,000 the day before. See Steve Symington, Why Veeco Instruments Inc. Stock Is Plummeting Today, The Motley Fool (Dec. 8, 2017) (“Shares of Veeco Instruments Inc. (NASDAQ:VECO) are plummeting today, down 18.9% as of 1:30 p.m. EDT, after the process equipment solutions company announced an unfavorable development in its ongoing patent infringement suit brought by Chinese rival Advanced Micro-Fabrication Equipment (AMEC) this past July.”).

76. Veeco’s stock has never fully recovered and, as of the initiation of this action, traded at approximately $14 per share, reflecting a more than 56% decline from its value at the time of the closing of the Merger. As of the filing of this Consolidated Complaint, Veeco, continuing its downward trajectory, trades in the range of $7 to $8 per share.

FIRST CAUSE OF ACTION

For Violation of §11 of the 1933 Act Against All Defendants

77. Plaintiffs repeat and reallege each preceding paragraph by reference.

78. This Cause of Action is brought pursuant to §11 of the 1933 Act, 15 U.S.C. §77k. on behalf of the Class, against all defendants.

79. This is a non-fraud cause of action. Plaintiffs do not assert that defendants committedpage 24 can't be parsed

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SECOND CAUSE OF ACTION

For Violation of §12(a)(2) of the 1933 Act Against the Executive Defendants

89. Plaintiffs repeat and reallege each preceding paragraph by reference.

90. This Cause of Action is brought pursuant to §12(a)(2) of the 1933 Act, 15 U.S.C. §771(a)(2), on behalf of the Class, against the Executive Defendants.

91. This is a non-fraud cause of action. Plaintiffs do not assert that defendants committed intentional or reckless misconduct or that defendants acted with scienter or fraudulent intent. Each of the defendants named in this Cause of Action was directly involved in the sale of Veeco stock to Plaintiffs, and in soliciting Plaintiffs was motivated by a desire to serve their own financial interests or the financial interests of the owners of Veeco.

92. By means of the defective Prospectus and the PowerPoint presentation alleged at 997-10 and 4949-50 herein (“PowerPoint Pitch”), the Executive Defendants promoted and sold Veeco stock to Plaintiffs and other members of the Class for the benefit of themselves and their associates. “Veeco” and 1ts “officers and directors” were repeatedly identified in Veeco SEC filings as those who “may be deemed to be participants in the solicitation” in connection with the Merger. At the behest of Veeco, the Executive Defendants solicited plaintiffs and the Class members by their participation in the preparation, and approval, of the Prospectus and the PowerPoint Pitch.

93. The Prospectus and the PowerPoint Pitch contained untrue statements of material fact and concealed and failed to disclose material facts, as detailed above. Defendants owed Plaintiffs and other members of the Class who purchased or acquired Veeco stock pursuant to the Prospectus and the PowerPoint Pitch the duty to make a reasonable and diligent investigation of the statements contained in the Prospectus to ensure that such statements were true and that there was no omission to state a material fact required to be stated in order to make the statements contained therein not misleading. Defendants, in the exercise of reasonable care, should have known of the misstatements and omissions 94. Plaintiffs and the other members of the Class did not know, nor in the exercise of reasonable diligence could they have known, of the untruths and omissions contained in the Prospectus and the PowerPoint Pitch at the time Plaintiffs and other Class members acquired Veeco stock.

95. Byreason of the conduct alleged herein, the Executive Defendants violated §12(a)(2) of the 1933 Act. As a direct and proximate result of such violations, Plaintiffs and the other members of the Class who purchased or acquired Veeco stock pursuant to the Prospectus and the PowerPoint Pitch sustained substantial damages. Accordingly, Plaintiffs and the other members of the Class who hold the Veeco stock issued pursuant to the Prospectus and the PowerPoint Pitch have the right to rescind and recover the consideration paid for their stock, and hereby tender their stock to Veeco. Class members who have sold their stock seek damages to the extent permitted by law.

THIRD CAUSE OF ACTION

For Violation of §15 of the 1933 Act Against All Defendants

96. Plaintiffs repeat and reallege each preceding paragraph by reference.

97. This Cause of Action is brought pursuant to §15 of the 1933 Act against all defendants.

98. The Individual Defendants each were control persons of Veeco by virtue of their positions as directors, senior officers and/or authorized representatives of the Company. The Individual Defendants each had a series of direct and/or indirect business and/or personal relationships with other directors and/or officers and/or major shareholders of Veeco and/or Ultratech. The Company controlled the Individual Defendants and all of its employees.

99. Defendants each not only controlled those subject to liability as primary violators of §§11 and 12(a)(2) of the 1933 Act alleged in the Causes of Action above, they directly participated in controlling Veeco by having signed or authorized the signing of the Registration Statement and having otherwise directed through their authority the processes leading to execution of the Merger and the issuance of Veeco stock to Plaintiffs and members of the class.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for relief and judgment, as follows:

A. Declaring this action to be a proper class action and certifying Plaintiffs as Class representatives under §382 of the California Code of Civil Procedure;

B. Awarding compensatory damages in favor of Plaintiffs and the other Class members against all defendants, jointly and severally, for all damages sustained as a result of defendants’ wrongdoing, in an amount to be proven at trial, including interest thereon;

C. Awarding Plaintiffs and the Class their reasonable costs and expenses incurred in this action, including counsel fees and expert fees;

D. Awarding rescission or a rescissory measure of damages; and

E. Awarding such equitable/injunctive or other relief as the Court may deem just and proper.

JURY DEMAND

Plaintiffs hereby demand a trial by jury.

DATED: December 11, 2018 ROBBINS GELLER RUDMAN

& DOWD LLP JMFSI JAFON A TE

QIS ‘Jflt;_.ntn—h.d&‘

JAMT% . IACONETTE 655 West BroadwaT‘S'ulte 1900 San Diego, CA 92101 Telephone: 619/231-1058 619/231-7423 (fax) DATED: December 11, 2018 TI'INI & BOTTINI, INC. CIS A. BOTTINJ. JR

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1508967 1

7817 Ivanhoe Avenue, Suite 102 La Jolla, CA 92037

Telephone: 858/914-2001 858/914-2002 (fax)

Co-Lead Counsel for Plaintiffs and the Class

HEDIN HALL LLP

DAVID W. HALL

Four Embarcadero Center, Suite 1400 San Francisco, CA 94104 Telephone: 415/766-3534 415/402-0058 (fax)

THORNTON LAW FIRM LLP GUILLAUME BUELL

1 Lincoln Street, 25th Floor Boston, MA 02111

Telephone: 617/531-3933

Additional Counsel for Plaintiffspage 29 can't be parsed

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