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EXHIBIT 5
FIRST AMENDMENT TO RIGHTS AGREEMENT
FIRST AMENDMENT TO RIGHTS AGREEMENT, dated as of December 2, 1998, between
Micrion Corporation, a Massachusetts corporation (the "COMPANY"), and
BankBoston, N.A. (the "Rights Agent"). Capitalized terms not defined herein
shall have the meanings assigned to such terms within the Rights Agreement (as
defined below).
RECITALS
A. The Company and the Rights Agent entered into a Rights Agreement dated
as of July 30, 1997 (the "RIGHTS AGREEMENT") relating to the declaration of a
dividend of one Preferred Share purchase right (a "RIGHT") for each Common Share
of the Company outstanding as of the Close of Business on August 4, 1997 and for
each Common Share of the Company that shall become outstanding between the
Record Date and the earlier of the Distribution Date and the Expiration Date,
and in certain circumstances after the Distribution Date.
B. The Rights Agreement sets forth, among other things, the terms and
conditions pursuant to which the holders of Rights may exercise such Rights.
C. The Company intends to enter into an Agreement and Plan of Merger
dated in December, 1998 (the "MERGER AGREEMENT") with FEI Company, an Oregon
corporation ("FEI"), and MC Acquisition Corp., a wholly owned subsidiary of FEI
(the "SUB"), pursuant to which the Company will merge with and into the Sub (or,
under certain circumstances, the Sub will be merged with and into the Company).
D. The Company and the Rights Agent have determined that the entering
into of the Merger Agreement by the Company and the transactions contemplated
thereby should not affect either party's rights under the Rights Agreement.
E. Pursuant to Section 27 of the Rights Agreement, the Company has
provided the Rights Agent with a certificate from an appropriate officer stating
that this Amendment is in compliance with such Section 27.
F. In connection with the transactions pursuant to the Merger Agreement,
the Company and the Rights Agent have agreed to amend the Rights Agreement as
set forth herein.
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For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged, the parties hereto agree to amend the Rights Agreement
as follows:
1. The definition of "Acquiring Person" appearing in Section 1(a) of the
Rights Agreement is hereby amended by inserting the phrase "or (vi) an
Exempt Person" at the end of the first sentence of such definition.
2. Section 1 of the Rights Agreement is hereby amended by inserting the
following definition immediately following the definition of
"Equivalent Shares" appearing in such Section (and re-lettering each
definition thereafter in Section 1):
(j) "EXEMPT PERSON" shall mean, collectively and each separately, FEI
Company, MC Acquisition Corp. and their respective Affiliates.
Notwithstanding the foregoing sentence, a Person who would otherwise
be an Exempt Person shall immediately lose its status as an Exempt
Person upon the occurrence of any of the following: (i) such Person
shall make a public announcement that such Person, directly or
indirectly, individually or collectively with a group, intends to
commence a tender or exchange offer for any Common Shares of the
Company then outstanding if, assuming the successful consummation
thereof, such Person would be the Beneficial Owner of 15% or more of
the shares of Common Stock then outstanding; (ii) such Person shall
enter into any voting agreement or voting trust pursuant to which such
Person agrees to vote its shares with or for any other holder of
Common Shares of the Company (other than any voting agreement or
voting trust that is with other Exempt Persons); and (iii) such Person
shall grant a proxy or power of attorney to any other Person (other
than an officer, director, agent or employee of the Company and other
than to another Exempt Person) for the purpose of voting such Person's
Common Shares. The assignee, transferee or successor to any Exempt
Person shall not constitute an Exempt Person (unless such assignee,
transferee or successor was an Exempt Person immediately prior to such
assignment, transfer or successor) without the prior written consent
of the Company, which consent may be withheld in the Company's
absolute discretion.
3. Except to the extent specifically amended hereby, all terms of the
Rights Agreement shall remain in full force and effect.
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4. This Amendment may be executed in any number of counterparts, all of
which taken together shall constitute one and the same instrument.
5. This Agreement shall be deemed to be a contract made under the laws of
The Commonwealth of Massachusetts and for all purposes shall be
governed by and construed in accordance with the laws of such
Commonwealth applicable to contracts to be made and performed entirely
within such Commonwealth.
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IN WITNESS WHEREOF, the parties hereto have duly executed and delivered
this Agreement as of the date first above written.
MICRION CORPORATION
By: /s/ Xxxxx X. Xxxxxx
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Xxxxx X. Xxxxxx
Vice President and
Chief Financial Officer
BANKBOSTON, N.A.
By: /s/ Xxxxx Xxxxxx
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Xxxxx Xxxxxx
Director, Client Services
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