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EXHIBIT 4.5
FORM OF
KEY TECHNOLOGY, INC.
AND
CHASEMELLON SHAREHOLDER SERVICES, L.L.C.
WARRANT AGREEMENT
DATED __________________, 2000
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WARRANT AGREEMENT
WARRANT AGREEMENT, dated as of _____________________, 2000, by
and between KEY TECHNOLOGY, INC., an Oregon corporation (the "Company"), and
CHASEMELLON SHAREHOLDER SERVICES, L.L.C., a New Jersey limited liability
company, as warrant and transfer agent (hereinafter called the "Warrant Agent").
WHEREAS, pursuant to the terms of an Agreement and Plan of Merger
dated February 15, 2000 between the Company and Advanced Machine Vision
Corporation ("AMVC") and KTC Acquisition Corp. ("Sub"), as amended on February
25, 2000 (the "Merger Agreement"), the parties have agreed that Sub shall merge
into AMVC and in connection therewith the shareholders of AMVC shall receive in
exchange cash, shares of the Company's Series B Convertible Preferred Stock,
$0.01 par value and warrants to purchase Common Stock (the "Warrants");
WHEREAS, the Company desires to appoint the Warrant Agent to act
on behalf of the Company in connection with the issuance, registration,
transfer, exchange and exercise of the Warrants, and the Warrant Agent is
willing to accept such appointment.
NOW, THEREFORE, in consideration of the premises and mutual
agreements herein set forth, the parties hereto agree as follows:
1. Appointment of Warrant Agent.
The Company hereby appoints the Warrant Agent to act as agent for
the Company in accordance with the instructions set forth herein, and the
Warrant Agent hereby accepts such appointment, upon the terms and conditions
hereinafter set forth.
2. Certain Definitions.
As used herein, the following terms shall have the following
meanings:
"BUSINESS DAY" shall mean any day other than a Saturday, a Sunday
or a day on which banking institutions in the State of Washington or the State
of New Jersey are authorized or obligated by law or executive order to close.
"CLOSING PRICE" means the closing price per share of Common Stock
on the principal national securities exchange on which the Common Stock is
listed or admitted to trading or, if not listed or traded on any such exchange,
on the Nasdaq National Market or if not listed or traded on any such exchange or
the Nasdaq National Market, the average of the last bid and asked prices per
share on the Nasdaq over-the-counter system or, if such quotations are not
available, the fair market value as reasonably determined by the board of
directors of the Company or any committee of such board.
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"COMMISSION" means the Securities and Exchange Commission or any
successor governmental organization or entity responsible for administration of
the Securities Act.
"COMMON STOCK" means (i) the class of stock designated as the
Common Stock, $0.01 par value per share, of the Company, on the date hereof or
(ii) any other class of stock resulting from successive changes or
reclassifications of such shares consisting solely of changes in par value, or
from par value to no par value, or from no par value to par value. Unless the
context requires otherwise, all references to Common Stock and Warrant Shares in
this Agreement and in the Warrant Certificates shall, in the event of an
adjustment pursuant to Section 12 hereof, be deemed to refer also to any other
securities or property then issuable upon exercise of the Warrants as a result
of such adjustment.
"ELIGIBLE INSTITUTION" shall have the meaning set forth in
Section 8.2 hereof.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended.
"EXERCISE PRICE" shall have the meaning set forth in Section 5.2
hereof.
"EXERCISE PERIOD" means the period during which the Warrants may
be exercised as set forth in Section 5.1 hereof.
"EXPIRATION DATE" shall mean, as to each Warrant, 5:00 p.m.,
Pacific Standard Time, on _____________, 2005 or such earlier date as the
Warrants shall be redeemed pursuant to Section 16 hereof; provided that if such
date shall in the State of Oregon be a holiday or a day on which banks are
authorized or required to close, then 5:00 p.m., Pacific Standard Time on the
next following day which in the State of Oregon is neither a holiday nor a day
on which banks are authorized or required to close.
"HOLDERS" shall have the meaning set forth in Section 4.2 hereof.
"NASD" means the National Association of Securities Dealers, Inc.
"REDEMPTION DATE" shall have the meaning set forth in Section
16.3 hereof.
"REDEMPTION NOTICE" shall have the meaning set forth in Section
16.2 hereof.
"REDEMPTION PRICE" shall mean the price at which a Holder may, at
its option in accordance with the terms hereof, require the Company to redeem
the Warrants, or the Company, may at its option in accordance with the terms
hereof, redeem the Warrants, which price, in each case, shall be $10.00 per
whole share of Common Stock purchasable upon exercise of such Warrants.
"SECURITIES ACT" means the Securities Act of 1933, as amended.
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"WARRANT CERTIFICATE" shall have the meaning set forth in Section
3.1 hereof.
"WARRANT REGISTER" means the books and records kept by the
Warrant Agent for the registration, and the registration of transfer, of the
Warrant Certificates in which shall be registered the names and addresses of
Holders of Warrants evidenced by Warrant Certificates in registered form and the
certificate numbers and denominations of such Warrant Certificates.
"WARRANT SHARES" means the shares of Common Stock issuable upon
the exercise of a Warrant.
3. Form of Warrant Certificate.
3.1 The certificates evidencing the Warrants (the "Warrant
Certificates"), and the forms of election to purchase Warrant Shares and of
assignment to be printed on the reverse thereof, shall be substantially in the
form set forth in Exhibit A hereto and may have such letters, numbers or other
marks of identification or designation and such legends, summaries or
endorsements printed, lithographed or engraved thereon as the Company reasonably
deems appropriate (but which do not affect the rights or duties of the Warrant
Agent) and as are not inconsistent with the provisions of this Agreement, or as
may be required to comply with any law, any rule or regulation related thereto,
or with any rule or regulation of the NASD, the Nasdaq National Market or any
securities exchange on which the Warrants may from time to time be listed.
3.2 Each Warrant shall entitle the Holder thereof to purchase the
number of Warrant Shares set forth on the face of each Warrant Certificate upon
the exercise thereof at the applicable Exercise Price, subject to adjustment as
provided in Section 12 hereof, during the Exercise Period; provided, however,
that the Warrants are exercisable only for whole shares; cash will be paid in
lieu of fractional shares in accordance with Section 5.5 hereof. Each Warrant
Certificate shall be executed on behalf of the Company by the manual or
facsimile signature of the present or any future Chairman of the Board, Chief
Executive Officer, President or any officer of the Company, under its corporate
seal, affixed or in facsimile, attested by the manual or facsimile signature of
the present or any future Secretary or Assistant Secretary of the Company.
Warrants shall be dated as of the date of their initial issue.
4. Registration and Countersignature.
4.1 The Warrant Agent shall maintain the Warrant Register. The
Warrant Certificates shall be countersigned by the Warrant Agent and shall not
be valid for any purpose unless so countersigned. The Warrant Certificates shall
be so countersigned, however, by the Warrant Agent and shall be delivered by the
Warrant Agent, notwithstanding whether the persons whose manual or facsimile
signatures appear thereon as proper officers of the Company shall have ceased to
be such officers at the time of such countersignature or delivery.
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4.2 Prior to due presentment for registration or transfer of the
Warrant Certificates, the Company and the Warrant Agent may deem and treat the
registered holder (a "Holder") thereof as the absolute owner of the Warrant
Certificates (notwithstanding any notation of ownership or other writing made
thereon by anyone other than the Company or the Warrant Agent), for the purpose
of any exercise thereof and for all other purposes, and neither the Company nor
the Warrant Agent shall be affected by any notice to the contrary.
5. Duration and Exercise of Warrants.
5.1 Each Warrant may be exercised by the Holder thereof at any
time on or after the date hereof, but not after the Expiration Date, upon the
terms and subject to the conditions set forth herein and in the applicable
Warrant Certificate. Upon the Expiration Date, all rights evidenced by the
Warrants shall cease and the Warrants shall become void.
5.2 Subject to the provisions of this Agreement, the Holder of
each Warrant shall have the right to purchase from the Company (and the Company
shall issue and sell to such Holder) the number (rounded down to the nearest
whole number) of fully paid and nonassessable Warrant Shares set forth on such
Holder's Warrant Certificate (or such number of Warrant Shares as may result
from adjustments made from time to time as provided in this Agreement) at the
price per share of $15.00 in lawful money of the United States of America (such
exercise price per Warrant Share, as adjusted from time to time as provided
herein, being referred to herein as the "Exercise Price"), upon (i) surrender of
the Warrant Certificates to the Company at the office of the Warrant Agent
designated by the Warrant Agent for such purpose with the exercise form on the
reverse thereof duly and properly completed and signed by the Holder or Holders
thereof or by a duly appointed legal representative thereof or by a duly
authorized attorney, such signature to be guaranteed by an Eligible Institution
(as defined in Section 8.2 hereof) and (ii) payment, in lawful money of the
United States of America, of the Exercise Price for the Warrant Share or Warrant
Shares in respect of which such Warrant is then exercised. The Exercise Price
payable upon exercise of any Warrant may be paid only by certified or, at the
option of the Holder, official bank check payable to the order of the Company,
or, in the alternative, if the Closing Price of one share of the Company's
Common Stock is greater than the Exercise Price on the date of surrender of the
Warrant for exercise, in lieu of exercising the Warrant for cash, a Holder may
exercise all or any part of the Warrant on a "cashless" basis by providing
written notice to the Warrant Agent of its intention to do so, together with the
properly endorsed Form of Subscription and stating the maximum number (the
"Maximum Number") of shares of Common Stock the Holder desires to purchase in
consideration of cancellation of Warrants in payment for such exercise. The
number of shares of Common Stock the Holder shall receive upon such exercise
pursuant to this Section 5.2 shall be equal to the number that is obtained when
the product of the Maximum Number and the difference between the Closing Price
per share on the date of surrender of the Warrant and the Exercise Price is
divided by the Closing Price per share. Upon request of the Warrant Agent, the
Company shall promptly inform in writing the Warrant Agent of the number of
shares of Common Stock that may be delivered to a Holder upon a "cashless"
exercise, and the Warrant Agent shall incur no liability and shall be fully
protected in relying on such information provided to it by the Company. The
Warrant Agent shall have no obligation to take any action under this Section
with respect to a "cashless" exercise, nor shall it incur any liability for
failing to take any such action, if it has not received all such relevant
information requested regarding such "cashless" exercise from the
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Company. Upon surrender of the Warrant Certificate, and payment of the Exercise
Price, the Company shall issue and cause to be delivered with all reasonable
dispatch to or upon the written order of the Holder of such Warrant and in such
name or names as such Holder may designate, a certificate or certificates for
the number of Warrant Shares so purchased upon the exercise of such Warrant,
together with a check in the amount of the value of any fraction of a Warrant
Share issuable upon such surrender pursuant to Section 5.5 hereof. The Warrant
Agent shall deliver on a weekly basis all funds received upon exercise of the
Warrants to the Company, 000 Xxxxx Xxxxxx, Xxxxx Xxxxx, Xxxxxxxxxx 00000,
Attention: Xxxxxx X. Xxxxxx, President.
5.3 Each person in whose name any certificate for Warrant Shares
is issued upon the exercise of Warrants shall for all purposes be deemed to have
become the holder of record of the Warrant Shares represented thereby, and such
certificate shall be dated the date upon which the Warrant Certificate
evidencing such Warrants was duly surrendered and payment of the Exercise Price
(and any applicable transfer taxes pursuant to Section 9 hereof) was made;
provided, however, that if the date of such surrender and payment is a date upon
which the Common Stock transfer books of the Company are closed, such person
shall be deemed to have become the record holder of such Warrant Shares on, and
such certificate shall be dated, the next succeeding Business Day on which the
Common Stock transfer books of the Company are open.
5.4 In the event that, during the Exercise Period, fewer than all
of the Warrants represented by a Warrant Certificate are exercised, a new
Warrant Certificate, duly executed by the Company, will be issued for the
remaining number of Warrant Shares purchasable pursuant to the Warrant
Certificate so surrendered, and the Warrant Agent shall countersign and deliver
such new Warrant Certificate to the Holder of such unexercised Warrants pursuant
to the provisions of this Section 5 and of Section 4 hereof.
5.5 No fractional shares of Common Stock or scrip shall be issued
to any Holder in connection with the exercise of a Warrant. Instead of any
fractional shares of Common Stock that would otherwise be issuable to such
Holder, the Company shall pay to such Holder a cash adjustment in respect of
such fractional interest in an amount equal to that fractional interest
multiplied by the sum of $10.00. The Warrant Agent shall have no duty or
obligation with regard to the payment, calculation or valuation of fractional
shares unless and until it has received written instructions from the Company
regarding fractional shares and the Company has otherwise complied with Section
18.2.4(C) of this Agreement.
5.6 The number of Warrant Shares to be received upon the exercise
of a Warrant and the price to be paid for a Warrant Share are subject to
adjustment from time to time as hereinafter set forth.
5.7 Warrants not exercised on or prior to the Expiration Date
shall become void and all rights in respect thereof shall cease as of such time.
6. Reservation of Warrant Shares; Stock Certificates.
The Company shall at all times reserve, for issuance and delivery
upon exercise of the Warrants, such number of Warrant Shares or other shares of
capital stock of the Company as may be issuable from time to time upon exercise
of the Warrants. All such shares shall be duly
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authorized and, when issued upon such exercise and receipt by the Company of
payment in full of the Exercise Price, shall be validly issued, fully paid and
nonassessable, free and clear of all liens, security interests, charges and
other encumbrances or restrictions on sale and free and clear of all preemptive
rights. The Warrant Agent is hereby irrevocably authorized to requisition, from
time to time from the transfer agent for the Common Stock, stock certificates
issuable upon exercise of outstanding Warrants. The Company will supply such
transfer agent with duly executed stock certificates for such purpose. All
Warrant Certificates surrendered upon exercise shall be cancelled by the Warrant
Agent and shall thereafter be delivered to the Company or otherwise disposed of
in a manner satisfactory to the Company. Unless all Warrants shall have been
exercised prior to 5:00 p.m., Pacific Standard Time, on the Expiration Date, the
Warrant Agent shall certify to the Company, as of the close of business on the
Expiration Date, the total aggregate number of Warrants then outstanding, and
thereafter no shares of Common Stock shall be subject to reservation in respect
of such Warrants. The Company shall keep a copy of this Agreement on file with
its transfer agent and with every transfer agent for any shares of Common Stock.
7. Transfer and Registration of the Warrants and Warrant Shares.
7.1 The Warrants and the Warrant Shares, and any interest in
either, may be sold, assigned, pledged, encumbered or in any other manner
transferred or disposed of, in whole or in part, only in accordance with Section
8 hereof and in compliance with applicable United States federal and state
securities laws and the terms and conditions hereof.
7.2 The Warrants and the Warrant Shares have been registered
under the Securities Act pursuant to a registration statement on Form S-4 (File
No. 333-36920) declared effective under the Securities Act (the "Registration
Statement"). The Company covenants and agrees:
7.2.1 it will prepare and file with the Commission such
amendments and supplements to the Registration Statement and the prospectus used
in connection therewith as may be necessary to keep the Registration Statement
effective through the termination of the Exercise Period or until such earlier
time as no Warrants remain outstanding;
7.2.2 as expeditiously as possible, to register or
qualify the Warrants and the Warrant Shares under the securities or "Blue Sky"
laws of each jurisdiction in which such registration or qualification is
necessary; and
7.2.3 to pay all expenses incurred by the Company in
complying with this Section 7.2, including, without limitation (A) all
registration and filing fees, (B) all printing expenses, (C) all fees and
disbursements of counsel and independent public accountants for the Company, (D)
all NASD and "Blue Sky" fees and expenses (including fees and expenses of
counsel in connection with any "Blue Sky" surveys) and (E) the entire expense of
any special audits incident to or required in connection with any such
registration.
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8. Exchange, Transfer of Assignment of Warrants.
8.1 Warrants may be exchanged, at the option of the Holder
thereof, upon presentation and surrender to the Warrant Agent of the Warrant
Certificate evidencing such Warrants, for other Warrant Certificates of
different denominations, entitling the Holder or Holders thereof to purchase in
the aggregate the same number of Warrant Shares as did such surrendered Warrant
Certificate. Subject to the preceding sentence, a Warrant Certificate may be
divided or combined with other Warrant Certificates that carry the same rights
upon presentation thereof at the office of the Warrant Agent, together with
written notice signed by the Holder or Holders thereof specifying the names and
denominations in which new Warrant Certificates are to be issued.
8.2 Warrants may be assigned or transferred, at the option of the
Holder thereof, upon surrender of the Warrant Certificates evidencing such
Warrants to the Warrant Agent, accompanied (if so required by the Company or the
Warrant Agent) by a written instrument or instruments of transfer in form
satisfactory to the Company and the Warrant Agent, duly and properly executed by
such Holder or by a duly authorized representative or attorney, such signature
to be guaranteed by a commercial bank or trust company having an office in the
United States, by a broker or a dealer that is a member of the NASD or by a
member of a national securities exchange (any such entity, an "Eligible
Institution"). Upon any such registration of transfer, a new Warrant Certificate
shall be issued to the transferee and the surrendered Warrant Certificate shall
be cancelled by the Warrant Agent. Warrant Certificates so cancelled shall be
delivered by the Warrant Agent to the Company from time to time or otherwise
disposed of by the Warrant Agent in a manner satisfactory to the Company.
8.3 Any transfer, exchange or assignment of Warrants (including
any new Warrants issued pursuant to Section 10 hereof) shall be without charge
(other than the cost of any transfer tax or governmental charge) to the Holder
and any new Warrant or Warrants issued pursuant to this Section 8 shall be dated
the date hereof.
9. Payment of Taxes.
The Company shall pay all documentary stamp taxes attributable to
the original issuance of the Warrants and of Warrant Shares; provided, however,
that the Company shall not be required to (a) pay any tax or other governmental
charge which may be payable in respect of any transfer involving the transfer
and delivery of Warrant Certificates or the issuance or delivery of certificates
for Warrant Shares in a name other than that of the Holder of the Warrant
Certificate surrendered upon the exercise of a Warrant or (b) issue or deliver
any certificate for Warrant Shares upon the exercise of any Warrants until any
such tax or charge required to be paid under clause (a) shall have been paid,
all such tax or charge being payable by the Holder of such Warrant at the time
of surrender.
10. Mutilated or Missing Warrant Certificates.
In the event that any Warrant Certificate shall be mutilated,
lost, stolen or destroyed, the Company may in its discretion issue, and the
Warrant Agent may countersign and deliver, upon the request of the Holder of the
Warrants evidenced by such Warrant Certificate, in
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exchange for and upon cancellation of any such mutilated Warrant Certificate, or
in substitution for any such lost, stolen or destroyed Warrant Certificate, a
new Warrant Certificate of like tenor and evidencing the same number of Warrant
Shares as were evidenced by such mutilated, lost, stolen or destroyed Warrant
Certificate, but only upon receipt of evidence satisfactory to the Company or
the Warrant Agent of such loss, theft or destruction of such Warrant Certificate
and an indemnity, if requested, satisfactory to the Company or the Warrant
Agent, as the case may be. An applicant for such substitute Warrant Certificate
shall also comply with such other reasonable regulations and pay such other
reasonable charges as the Company or the Warrant Agent may prescribe. Any such
new Warrant Certificate shall constitute an original contractual obligation of
the Company, whether or not the allegedly mutilated, lost, stolen or destroyed
Warrant Certificate shall be enforceable by any person at any time thereafter.
11. No Stock Rights; Limitation of Liability.
No Holder of any Warrant shall, by virtue thereof, be entitled to
the rights of a shareholder of the Company, unless and until exercise of such
Warrant has occurred. No provisions of any Warrant or of this Agreement, in the
absence of affirmative action by the Holder of any such Warrant to exercise such
Warrant, and no mere enumeration herein of the rights or privileges of such
Holder, shall give rise to any liability of such Holder for the Exercise Price
or as a shareholder of the Company, whether such liability is asserted by the
Company or by its creditors.
12. Antidilution Provisions.
12.1 The Exercise Price and the number of Warrant Shares that may
be purchased upon the exercise of a Warrant shall be subject to change or
adjustment from time to time as follows:
12.1.1 Stock Splits. If at any time during the Exercise
Period the number of outstanding shares of Common Stock shall have been
increased by a subdivision or split-up of shares of Common Stock, then, on the
record date fixed for the determination of holders of Common Stock immediately
after the effective date of such subdivision or split-up, the number of shares
to be delivered upon exercise of any Warrant will be appropriately increased so
that each Holder thereafter will be entitled to receive the number of shares of
Common Stock that such Holder would have owned immediately following such action
had such Warrant been exercised immediately prior thereto, and the Exercise
Price will be appropriately adjusted. The time of occurrence of an event giving
rise to an adjustment made pursuant to this Section 12.1.1 shall be deemed to be
the effective date thereof.
12.1.2 Combination of Stock. If the number of shares of
Common Stock outstanding at any time during the Exercise Period is decreased by
a combination of the outstanding shares of Common Stock, then, immediately after
the effective date of such combination, the number of shares of Common Stock to
be delivered upon exercise of any Warrant shall be appropriately decreased so
that the Holder of such Warrant thereafter will be entitled to receive the
number of shares of Common Stock that such Holder would have owned immediately
following such action had such Warrant been exercised immediately prior thereto,
and the Exercise Price shall be appropriately adjusted.
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12.1.3 No Adjustments to Exercise Price. No adjustment of
the Exercise Price in accordance with the provisions of paragraphs 12.1.1 or
12.1.2 above shall be made in an amount of less than $0.01; provided, however,
that the amount by which any adjustment is not made by reason of the provisions
of this Section shall be carried forward and taken into account at the time of
any subsequent adjustment in the Exercise Price.
12.1.4 Readjustments, Etc.. If an adjustment is made
under paragraphs 12.1.1 or 12.1.2 above, and the event to which the adjustment
relates does not occur, then any adjustments in the Exercise Price or Warrant
Shares that were made in accordance with such paragraphs shall be adjusted back
to the Exercise Price and the number of Warrant Shares that were in effect
immediately prior to the record date for such event.
12.2 No Impairment; Certain Events.
12.2.1 The Company shall not, by amendment of its
articles of incorporation or through any reorganization, reclassification,
consolidation, merger, sale, lease or transfer of assets, issuance or sale of
securities or any other action, avoid or seek to avoid the observance or
performance of any of the terms to be observed or performed under this Section
12 by the Company, but will at all times in good faith assist in the carrying
out of all the provisions of this Section 12 and in the taking of all such
action as may be necessary or appropriate in order to protect the rights of the
Holders against impairment.
12.2.2 If any event occurs as to which the provisions of
Section 12.1 are not strictly applicable but with respect to which, in the
reasonable, good faith opinion of the Company, an adjustment of the Exercise
Price, and the number of Warrant Shares issuable upon the exercise of a Warrant,
would fairly protect the exercise rights of the Holders in accordance with the
basic intent and principles of such provisions or as to which an adjustment
pursuant to such provisions, if strictly applied, would not fairly protect the
purchase rights of the Holders in accordance with the basic intent and
principles of such provisions, then the Company shall make any computation
required under this Section 12.2.2 with respect to any such adjustment on a
basis consistent with the basic intent and principles established by the
provisions of this Section 12, necessary to preserve, without dilution, the
exercise rights of the Holders. The Company shall appoint a firm of independent
certified public accountants (which may be the regular auditors of the Company)
of recognized national standing, which firm shall review the computation of the
Company prepared pursuant to this Section 12.2.2 and prepare a report signed by
such firm, which shall be provided to the Company and which shall acknowledge
that the adjustment calculation prepared by the Company is arithmetically
correct. Such report shall be conclusive evidence of the correctness of the
computation made under this Section 12.2.2. Upon receipt of such report, the
Company shall forthwith cause to be made, or shall act to prevent, the
adjustments described in such calculation.
13. Officer's Certificate.
Whenever the number of Warrant Shares that may be purchased upon
exercise of the Warrant is adjusted as required by the provisions of this
Agreement, the Company shall file forthwith with the Warrant Agent and with its
Secretary or Assistant Secretary at its principal office an officer's
certificate indicating the adjusted number of Warrant Shares that may be
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purchased upon exercise of a Warrant and the adjusted Exercise Price, determined
as herein provided, and setting forth in reasonable detail the facts requiring
such adjustment and the manner of computing such adjustment. Each such officer's
certificate shall be made available at all reasonable times for inspection by
the Holders. The Company shall, forthwith after each such adjustment, cause a
copy of such officer's certificate to be mailed to the Holders. The Warrant
Agent may rely on such certificate without further inquiry and shall not be
deemed to have knowledge of any adjustment unless and until it shall have
received such certificate.
14. Notice of Certain Events.
In the event that, at any time during the Exercise Period:
14.1 The Company shall pay any dividend on Common Stock that is
payable in stock, or make any distribution (other than regular cash dividends)
to the holders of Common Stock;
14.2 There shall be any capital reorganization or
reclassification of the capital stock of the Company; or consolidation or merger
of the Company with, or sale of all or substantially all of its assets to,
another corporation; or
14.3 There shall be a voluntary or involuntary dissolution,
liquidation or winding up of the Company;
Then, the Company will cause to be mailed to the Holder by first-class mail,
postage prepaid, addressed to such Holder at the address appearing in the
Warrant Register, (i) at least 10 days' prior written notice of the date on
which the books of the Company shall close or a record shall be taken for such
dividend or distribution or for determining rights to vote in respect of any
such reorganization, reclassification, consolidation, merger, sale, dissolution,
liquidation or winding up, and (ii) in the case of any such reorganization,
reclassification, consolidation, merger, sale, dissolution, liquidation, or
winding up, at least 10 days' prior written notice of the date when the same
shall take place. Any notice given in accordance with the foregoing clause (i)
shall also specify, in the case of any such dividend or distribution, the date
on which a shareholder shall be entitled thereto. Any notice given in accordance
with the foregoing clause (ii) shall also specify the date on which shareholders
shall be entitled to exchange their shares for securities or other property
deliverable upon such reorganization, reclassification, consolidation, merger,
sale, dissolution, liquidation, winding up or conversion, as the case may be.
15. Listing on Securities Exchanges.
15.1 Except as otherwise provided in Section 15.2, the Company
will, within 120 days of the issue date of the Warrants, list on each national
securities exchange or, if not so listed, will list for quotation on the Nasdaq
National Market, or such other over-the-counter quotation system on which any
Common Stock or Warrants may at any time be listed, all Warrants and shares of
the Common Stock from time to time issuable upon the exercise of the Warrants,
and will maintain such listing so long as any Warrants or other shares of Common
Stock are so listed; and the Company shall so list on each national securities
exchange or the Nasdaq National Market, or such other over-the-counter quotation
system, and shall maintain
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such listing of, any other shares of capital stock of the Company issuable
upon the exercise of the Warrants if and so long as any shares of capital stock
of the same class are listed on such national securities exchange or are traded
on the Nasdaq National Market or such over-the-counter quotation system. Any
such listing or quotation will be at the Company's expense.
15.2 The Company shall not be obligated or required to maintain
the listing or quotation of the Warrants under Section 15.1 above, and shall, in
its sole discretion, withdraw such listing or quotation when the number of
shares of Common Stock purchasable under all outstanding Warrants falls below
100,000 shares.
16. Rights of Redemption.
16.1 A Holder shall at all times prior to the Expiration Date,
and except to the extent exercised, have the right to require the Company to
redeem the Warrant at the Redemption Price. To exercise the right of redemption,
a Holder must surrender the Warrant, duly and properly endorsed by such Holder
or by a duly authorized representative or attorney, such signature to be
guaranteed by an Eligible Institution, to the Company's Warrant Agent, together
with the completed form of redemption notice attached thereto.
16.2 The Warrants shall be redeemable by and at the option of the
Company at the Redemption Price at any time when the number of shares of Common
Stock purchasable upon exercise of all outstanding Warrants is less than 100,000
shares, whether occurring by exercise or redemption, or both. If the Company
desires to exercise its right to redeem the remaining outstanding Warrants, it
shall instruct the Warrant Agent to mail, upon receipt by the Warrant Agent of
such form of notice, a notice of redemption (the "Redemption Notice") to each of
the Holders of the Warrants to be redeemed, by first class, postage prepaid, not
later than the thirtieth Business Day before the date fixed for redemption, at
his or its last address as it shall appear on the Warrant Register of the
Warrant Agent. Any notice mailed in the manner provided herein shall be
conclusively presumed to have been duly given whether or not the Holder receives
such notice.
16.3 The Redemption Notice shall specify (i) the Redemption
Price, (ii) the date fixed for redemption (the "Redemption Date"), (iii) the
place where the Warrant Certificates shall be delivered and the Redemption Price
paid, and (iv) that the right to exercise the Warrant shall terminate at 5:00
p.m., Pacific Standard Time on the Business Day immediately preceding the
Redemption Date. No failure to mail such notice nor any defect therein or in the
mailing thereof shall affect the validity of the proceedings for such redemption
except as to a Holder (a) to whom notice was not mailed or (b) whose notice was
defective. An affidavit of the Warrant Agent or of the Secretary or an Assistant
Secretary of the Company that notice of redemption has been mailed shall, in the
absence of fraud, be prima facie evidence of the facts stated therein.
16.4 Any right to exercise a Warrant shall terminate at 5:00
p.m., Pacific Standard Time on the Business Day immediately preceding the
Redemption Date. On and after the Redemption Date, Holders of the Warrants shall
have no further rights except to receive, upon surrender of the Warrant, the
Redemption Price.
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16.5 From and after the Redemption Date, the Company shall, at
the place specified in the notice of redemption, upon presentation and surrender
to the Company by or on behalf of the Holder thereof of one or more Warrant
Certificates evidencing Warrants to be redeemed, deliver or cause to be
delivered to or upon the written order of such Holder a sum in cash equal to the
Redemption Price of such Warrants. From and after the Redemption Date and upon
the deposit or setting aside by the Company of a sum sufficient to redeem all
the Warrants called for redemption, such Warrants shall expire and become null
and void and all rights hereunder and under the Warrant Certificates, except the
right to receive payment of the Redemption Price, shall cease. If the Company
shall purchase or acquire any Warrant or Warrants by redemption, the Warrant
Certificate or Warrant Certificates evidencing the same shall thereupon be
delivered to the Warrant Agent and canceled by it and retired.
17. Availability of Information.
The Company will comply with all applicable periodic public
information reporting requirements of the Commission to which it may from time
to time be subject.
18. Warrant Agent.
18.1 Merger, Consolidation or Change of Name of Warrant Agent.
18.1.1 Any entity into which the Warrant Agent may be
merged or with which it may be consolidated, or any entity resulting from any
merger or consolidation to which the Warrant Agent shall be a party, or any
entity succeeding to the business of the Warrant Agent, shall be the successor
to the Warrant Agent hereunder without the execution or filing of any paper or
any further act on the part of any of the parties hereto; provided, however,
that such successor entity must be otherwise eligible for appointment as a
Warrant Agent hereunder. In the event that at the time such successor to the
Warrant Agent shall succeed to the agency created by this Agreement any of the
Warrant Certificates shall have been countersigned but not delivered, any such
successor to the Warrant Agent may adopt the countersignature of such
predecessor Warrant Agent and deliver such Warrant Certificates so
countersigned; and in the event that at the time of such succession any of the
Warrant Certificates shall not have been countersigned, any such successor to
the Warrant Agent may countersign such Warrant Certificates either in the name
of such predecessor Warrant Agent or in the name of such successor Warrant
Agent; and in any event, all such Warrant Certificates shall have the full force
and effect provided in such Warrant Certificates and in this Agreement.
18.1.2 In the case that at any time the name of the
Warrant Agent shall be changed and at such time one or more of the Warrant
Certificates shall have been countersigned but not delivered, the Warrant Agent
may adopt the countersignature under its prior name and deliver Warrant
Certificates so countersigned; in the event that at that time one or more of the
Warrant Certificates shall not have been countersigned, the Warrant Agent may
countersign such Warrant Certificates either in its prior name or in its changed
name; and in all such cases such Warrant Certificates shall have the full force
and effect provided in such Warrant Certificates and in this Agreement.
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18.2 Duties of Warrant Agent. The Warrant Agent undertakes only
the duties and obligations expressly imposed by this Agreement upon the
following terms and conditions, by which the Holders, by their acceptance of
Warrants, and the Company, shall be bound:
18.2.1 The Warrant Agent shall not be responsible for any
failure of the Company to comply with any of the covenants to be complied with
by the Company that are contained in this Agreement or in the Warrant
Certificates.
18.2.2 The Warrant Agent may consult at any time with
counsel satisfactory thereto, and the Warrant Agent shall incur no liability or
responsibility to the Company or to any Holder in respect of any action taken,
suffered or omitted by the Warrant Agent hereunder in accordance with the
opinion or the advice of such counsel, provided that the Warrant Agent shall
have exercised reasonable care in the selection and continued employment of such
counsel. Whenever in the performance of its duties hereunder the Warrant Agent
is unsure of or has questions as to what action it is required to take under
this Warrant Agreement, the Warrant Agent shall promptly seek clarification
thereof from the Company, and the Warrant Agent shall be fully protected and
incur no liability in not taking any such action prior to receiving a written
response from the Company.
18.2.3 The Warrant Agent shall incur no liability or
responsibility to the Company or to any Holder for any action taken in reliance
on any notice, resolution, waiver, consent, order, certificate or other paper,
document or instrument believed by the Warrant Agent to be genuine and to have
been signed, sent or presented by the party or parties thereto.
18.2.4 The Company shall (A) pay to the Warrant Agent
reasonable compensation for all services rendered by the Warrant Agent in the
preparation, execution, delivery, amendment and administration of this Agreement
and the exercise and performance of its duties hereunder, (B) reimburse the
Warrant Agent for all expenses, disbursements, counsel fees, taxes (other than
taxes based on such Warrant Agent's net income), governmental charges, and other
charges of any kind and nature, incurred by the Warrant Agent in the performance
of this Agreement, (C) if the Warrant Agent has been instructed in writing to
pay out fractional shares, advance to the Warrant Agent, upon request, funds to
pay cash in lieu of fractional shares of Common Stock issuable upon exercise of
Warrants and (D) indemnify the Warrant Agent and save it harmless against any
and all losses, damages, judgments, fines, penalties, claims, demands,
settlements, costs, expenses or liabilities, including counsel fees, arising out
of or in connection with its agency under this Agreement, except as a result of
its negligence or bad faith. In no case shall the Warrant Agent be liable for
special, indirect, incidental or consequential loss or damage of any kind
whatsoever (including, but not limited to, lost profits). The costs and expenses
incurred in enforcing this right of indemnification shall be paid by the
Company. Any liability of the Warrant Agent under this Warrant Agreement will be
limited to the amount of fees paid by the Company to the Warrant Agent.
18.2.5 The Warrant Agent shall be under no obligation to
institute any action, suit or legal proceeding or to take any other action
likely to involve the incurrence by the Warrant Agent of expenses unless the
Company or one or more Holders shall have furnished the Warrant Agent with
security and indemnity for any costs and expenses which may be incurred. All
rights of action under this Agreement or under any of the Warrants may be
enforced by the
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18.2.6 Warrant Agent without the possession of any of the
Warrants or the production thereof at any trial or other proceeding relative
thereto, and any such action, suit or proceeding instituted by the Warrant Agent
shall be brought in its name as Warrant Agent, and any recovery of judgment
shall be for the ratable benefit of the Holders, as their respective rights or
interests may appear.
18.2.7 The Warrant Agent and any shareholder, affiliate,
director, officer or employee of the Warrant Agent may buy, sell or deal in any
of the Warrants or other securities of the Company, or become interested in any
transaction in which the Company may be interested or contract with or lend
money or otherwise act as fully and freely as though it were not the Warrant
Agent under this Agreement. Nothing herein shall preclude the Warrant Agent from
acting in any other capacity for the Company or for any other legal entity.
18.2.8 The Warrant Agent shall act hereunder solely as
agent, and its duties shall be determined solely by the provisions hereof. The
Warrant Agent shall not be liable for any actions which it may take, suffer or
refrain from taking, in connection with this Agreement, except as result from
its own gross negligence or bad faith.
18.2.9 The Warrant Agent shall make copies of this
Agreement available for inspection at its offices at ____________ during normal
business hours and shall provide copies to Holders upon their written request.
18.3 Change of Warrant Agent. The Warrant Agent may resign and be
discharged from its duties under this Agreement by providing 45 days' written
notice to the Company, and the Company upon 45 days' notice may discharge and
terminate the Warrant Agent, and in either instance the Warrant Agent shall send
written notice, sent at the Company's expense by first-class mail, postage
prepaid, to each Holder at such Holder's address appearing in the Warrant
Register, which notice shall specify a date when such termination of services
shall take effect and which shall be sent at least two weeks prior to the date
so specified. In all events that the Warrant Agent will cease to act as Warrant
Agent hereunder, the Company shall appoint a successor thereto. If the Company
shall fail to make such appointment within a period of 30 days after termination
of services by the Warrant Agent or by any Holder (which Holder shall, with such
notice, submit Warrant Certificates held thereby for inspection by the Company),
then any Holder may apply to any court of competent jurisdiction for the
appointment of a successor to the Warrant Agent. Pending appointment of a
successor to the Warrant Agent, either by the Company or by a court, the duties
of the Warrant Agent shall be carried out by the Company. After such
appointment, the successor Warrant Agent shall be vested with such powers,
rights, duties and responsibilities as such Warrant Agent would have been vested
had such Warrant Agent been named originally as Warrant Agent hereunder, without
further act or deed. Upon payment in full of all amounts owed to the former
Warrant Agent, the former Warrant Agent shall deliver and transfer to the
successor Warrant Agent any property at the time held by such former Warrant
Agent hereunder and shall execute and deliver any further assurance, conveyance,
act or deed necessary therefor. Failure to provide any notice called for in this
Section 18, however, or any defect therein, shall not affect the legality or
validity of the resignation or removal of the Warrant Agent or the appointment
of a successor Warrant Agent.
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19. Identity of New Transfer Agent.
Forthwith upon the appointment after the date hereof of any new
transfer agent for the Common Stock, the Company will file with the Warrant
Agent a statement setting forth the name and address of such transfer agent.
20. Successors.
All the covenants and provisions of this Agreement by or for the
benefit of the Company, the Warrant Agent or any of the Holders shall bind and
inure to the benefit of their respective successors, assigns, heirs and personal
representatives.
21. Termination.
This Agreement shall terminate at 5 p.m., Pacific Standard Time,
on the Expiration Date except that the Warrant Agent shall account to the
Company for all cash held by it at 5 p.m., Pacific Standard Time, on such
Expiration Date.
22. Headings.
The headings of sections of this Agreement have been inserted for
convenience of reference only, are not to be considered a part hereof, and shall
in no way modify or restrict any of the terms or provisions hereof.
23. Amendments.
This Agreement may be amended only by both (i) the written
consent of the Company and (ii) the affirmative vote or the written consent of
Holders holding not less than a majority in interest of the then outstanding
Warrants; provided, however, that, except as expressly provided herein, this
Agreement may not be amended to change (a) the Exercise Price, (b) the Exercise
Period, (c) the number or type of securities to be issued upon the exercise of
the Warrants, (d) the provisions of this Section 23, without the consent of each
Holder, or (e) any provisions which affect the rights, duties or obligations of
the Warrant Agent without the consent of the Warrant Agent.
24. Counterparts.
This Agreement may be executed in any number of counterparts each
of which when so executed shall be deemed to be an original, but all of which
taken together shall constitute one and the same agreement.
25. Notices.
Any notice required by the provisions of this Agreement to be
provided to the Company by the Warrant Agent or by any Holder shall be deemed
given if deposited in the United States mail, first class postage prepaid,
addressed (until another address is filed in writing by the Company with the
Warrant Agent) as follows:
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Key Technology, Inc.
000 Xxxxx Xxxxxx
Xxxxx Xxxxx, XX 00000
Attention: Corporate Secretary
Any notice required by the provisions of this Agreement to be
provided to the Warrant Agent by the Company or by any Holder shall be deemed
given if deposited in the United States mail, first class postage prepaid,
addressed (until another address is filed in writing by the Warrant Agent with
the Company or notice of the address of a successor Warrant Agent is provided
pursuant to this Agreement) as follows:
ChaseMellon Shareholder Services, L.L.C.
000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Attn: Relationship Manager
Any notice required by the provisions of this Agreement to be
provided to any Holder by the Company or by the Warrant Agent shall be deemed
given if deposited in the United States mail, first class postage prepaid,
addressed to such Holder at its address set forth in the Warrant Register. Any
notice given in conformity with this Section 25 shall be deemed effective three
days after mailing.
26. Benefits of this Agreement.
Nothing in this Agreement shall be construed to give to any
person or corporation, other than the Company, the Warrant Agent and the
Holders, any legal or equitable right, remedy or claim under this Agreement; but
this Agreement shall be for the sole and exclusive benefit of the Company, the
Warrant Agent and the Holders.
27. Governing Law.
This Agreement shall be governed by and construed in accordance
with the laws of the State of Oregon, without reference to principles of
conflict of laws; provided, however, that all provisions regarding the rights,
duties and obligations of the Warrant Agent shall be governed by and construed
in accordance with the laws of the State of New York applicable to contracts
made and to be performed entirely within such state.
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IN WITNESS WHEREOF, the parties hereto have duly caused this
Agreement to be signed by its duly authorized officers.
KEY TECHNOLOGY, INC.
By __________________________________
Name ________________________________
Title _______________________________
CHASEMELLON SHAREHOLDER
SERVICES, L.L.C. as Warrant Agent
By __________________________________
Name ________________________________
Title _______________________________
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