KEY TECHNOLOGY, INC. (an Oregon corporation) and AMERICAN STOCK TRANSFER & TRUST COMPANY Rights Agent Second Amended and Restated Rights Agreement Dated as of November 13, 2007
KEY
TECHNOLOGY, INC.
(an
Oregon corporation)
and
AMERICAN
STOCK TRANSFER & TRUST COMPANY
Rights
Agent
Second
Amended and Restated
Dated
as
of November 13, 2007
TABLE
OF
CONTENTS
Section
Page
1. Certain
Definitions
1
2. Appointment
of Rights
Agent
5
3. Issue
of Rights
Certificates
5
4. Form
of Rights
Certificates
6
5. Countersignature
and
Registration
7
6. Transfer,
Split Up, Combination and Exchange of Rights
Certificates;
Mutilated, Destroyed,
Lost or Stolen
Rights
Certificates
8
7. Exercise
of Rights; Purchase Price; Expiration Date
of
Rights
9
8. Cancellation
and Destruction of Rights
Certificates 11
9. Reservation
and Availability of Capital
Stock
11
10. Preferred
Stock Record
Date 13
11. Adjustment
of Purchase Price, Number and Kind of
Shares
or Number of
Rights 13
12. Certificate
of Adjusted Purchase Price or Number of
Shares
21
13. Consolidation,
Merger or Sale or Transfer
of
Assets or Earning
Power 22
14. Fractional
Rights and Fractional
Shares 24
15. Rights
of
Action 25
16. Agreement
of Rights
Holders 26
17. Rights
Holder and Rights Certificate Holder Not Deemed a
Shareholder 26
KEY
TECHNOLOGY, INC. PAGE
i
SECOND
AMENDED AND RESTATED RIGHTS PLAN
18. Concerning
the Rights
Agent
27
19. Merger
or Consolidation or Change of Name of Rights
Agent 27
20. Duties
of Rights
Agent
28
21. Change
of Rights Agent
30
22. Issuance
of New Rights
Certificates
31
23. Redemption
and
Termination 31
24. Exchange
32
25. Notice
of Certain
Events
33
26. Notices
34
27. Supplements
and
Amendments 35
28. Successors 35
29. Determinations
and Actions by the Board of Directors,
Etc. 35
30. Benefits
of This
Agreement 36
31. Severability 36
32. Governing
Law 36
33. Counterparts 37
34. Descriptive
Headings 37
Exhibit
A -- Designation of Terms of
Series A Junior
Participating
Preferred Stock
Exhibit
B -- Form of Rights
Certificate
KEY
TECHNOLOGY,
INC. PAGE
ii
SECOND AMENDED AND RESTATED RIGHTS
PLAN
TABLE
OF
DEFINED TERMS
|
Term
Defined
Section
Acquiring
Person .................................................................................................
1(a)
Adjustment
Shares ...............................................................................................
11(a)(ii)
Adverse
Person ....................................................................................................
1(b)
Affiliate ..................................................................................................................
1(c)
Agreement .............................................................................................................
Intro
Associate ...............................................................................................................
1(c)
Beneficial
Owner; beneficially
own ....................................................................
1(d)
Board
of Directors
.................................................................................................
Intro
Business
Day .........................................................................................................
1(e)
Close
of
Business ..................................................................................................
1(f)
Common
Stock ....................................................................................................... Intro; 1(g)
Common
Stock Equivalents
.................................................................................
11(a)(iii)
Company
(Key Technology,
Inc.) .......................................................................
Intro
Company
(following a
Section 13
Event) ...................................................................................................
13(a)
Current
Value .......................................................................................................... 11(a)(iii)
Current
Market
Price ..............................................................................................
20(b)
Distribution
Date ....................................................................................................
3(a)
equivalent
preferred stock
....................................................................................
11(b)
Exchange
Act ..........................................................................................................
1(a)
Exchange
Date ........................................................................................................
7(a)
Exchange
Ratio .......................................................................................................
24(a)
Expiration
Date .......................................................................................................
7(a)
Final
Expiration
Date .............................................................................................
7(a)
|
Term
Defined Section
Original
Rights ....................................................................................................
1(d)(i)
Person ..................................................................................................................
1(h)
Preferred
Stock ...................................................................................................
Intro; 1(i)
Principal
Party .....................................................................................................
13(b)
Purchase
Price1...........................................................................
(j); 4(a); 11(a)(ii); 13(a)
Qualifying
Offer .................................................................................................. 1(a)(ii)(A)
Record
Date ......................................................................................................... Intro
Redemption
Date ................................................................................................
7(a)
Redemption
Price ................................................................................................ 23(a)
Restated
Articles of
Incorporation ................................................................... 11(a)(iii)
Rights .................................................................................................................... Intro
Rights
Agent ........................................................................................................
Intro
Rights
Certificates ...............................................................................................
3(a)
Rights
Dividend Declaration
Date ....................................................................
Intro
Section
11(a)(ii) Event
......................................................................................... 11(a)(ii)
Section
11(a)(ii) Trigger Date
............................................................................. 11(a)(iii)
Section
13
Event ..................................................................................................
13(a)
Securities
Act .......................................................................................................
7(c)
Spread .................................................................................................................... 11(a)(iii)
Stock
Acquisition
Date ....................................................................................... 1(m)
Subsidiary ............................................................................................................. 1(n)
Substitution
Period ............................................................................................. 11(a)(iii)
Trading
Day ........................................................................................................
11(d)(i)
Triggering
Event ................................................................................................
1(o)
|
KEY
TECHNOLOGY, INC. PAGE
iii
SECOND
AMENDED AND RESTATED RIGHTS PLAN
SECOND
AMENDED AND RESTATED
SECOND
AMENDED AND RESTATED RIGHTS
AGREEMENT, dated as of November 13, 2007 (this "Agreement"), between Key
Technology, Inc., an Oregon corporation (the "Company"), and American Stock
Transfer & Trust Company, a New York banking corporation (the "Rights
Agent").
W
I T N E
S E T H
WHEREAS,
on May 4, 1998 (the "Rights
Dividend Declaration Date"), the Board of Directors of the Company (the "Board
of Directors") authorized and declared a dividend distribution of one Right
(as
defined below) for each share of the Company's common stock, par value $.01
per
share (the "Common Stock"), outstanding at the close of business on June 30,
1998 (the "Record Date"), and authorized the issuance of one Right (as such
number may hereinafter be adjusted pursuant to the provisions of
Section 11(p) hereof) for each share of Common Stock of the Company issued
between the Record Date and the Distribution Date (as defined below), each
Right
initially representing the right to purchase 1/1,000 of a share of the Company's
Series A Junior Participating Preferred Stock (the "Preferred Stock") having
the
rights, powers and preferences set forth in Exhibit A attached hereto, upon
the
terms and subject to the conditions hereinafter set forth (each a "Right" and
collectively, the "Rights");
WHEREAS,
the Company entered into a Rights Agreement with ChaseMellon Shareholder
Services, L.L.C., a New Jersey limited liability company ("ChaseMellon") dated
June 20, 1998 and appointed ChaseMellon as the initial rights
agent;
WHEREAS,
on April 1, 2001, the Company amended and restated the Rights Agreement (the
"First Amended and Restated Rights Agreement") whereby the Company removed
ChaseMellon as the rights agent and appointed American Stock Transfer &
Trust Company as the successor rights agent, and the Company appointed the
Rights Agent to act on behalf of the Company in connection with the
Rights;
WHEREAS,
the First Amended and Restated Rights Agreement provides for its amendment
from
time to time without the consent of the holders of the Rights; and
WHEREAS,
on or about October 8, 2007, the Board of Directors of the Company authorized
and directed the officers of the Company to amend and restate the First Amended
and Restated Rights Agreement on the terms and conditions set forth in this
Agreement.
NOW,
THEREFORE, in consideration of the
premises and the mutual agreements herein set forth, the parties hereby agree
as
follows:
KEY TECHNOLOGY, INC. PAGE
1
SECOND
AMENDED AND RESTATED RIGHTS PLAN
Section
1. Certain
Definitions.
For
purposes of this Agreement, the following terms have the meanings
indicated:
(a) "Acquiring
Person" shall mean any Person who or which, together with all Affiliates and
Associates of such Person, shall be the Beneficial Owner of 15% or more of
the
shares of Common Stock then outstanding, but shall not include:
(i) the
Company;
(ii) any
Subsidiary of the Company;
(iii) any
employee benefit plan of the Company or of any Subsidiary of the
Company;
(iv) any
Person or entity organized, appointed or established by the Company for or
pursuant to the terms of any such plan; or
(v) any
such Person who has reported or is required to report Beneficial Ownership
of
15% or more (but less than 25%) of the shares of Common Stock then outstanding
on Schedule l3G under the Exchange Act of 1934, as amended (the "Exchange Act")
(or any comparable or successor report), or on Schedule 13D under the Exchange
Act (or any comparable or successor report) which Schedule 13D does not state
any intention to or reserve the right to control or influence the management
or
policies of the Company or engage in any of the actions specified in Item 4
of
such Schedule (other than the disposition of the Common Stock) and, within
10
Business Days of being requested by the Company to advise it regarding the
same,
certifies to the Company that such Person acquired shares of Common Stock in
excess of l4.9% inadvertently or without knowledge of the terms of the Rights
or
consequences of such Beneficial Ownership under this Agreement and who, together
with all Affiliates and Associates, thereafter does not acquire additional
shares of Common Stock while the Beneficial Owner of 15% or more of the shares
of Common Stock then outstanding; provided, however, that if the
Person requested to so certify fails to do so within 10 Business Days, then
such
Person shall become an Acquiring Person immediately after such 10 Business
Day
Period.
Notwithstanding
the foregoing, no Person shall become an "Acquiring Person" solely as the result
of an acquisition of Common Stock by the Company which, by reducing the number
of shares outstanding, increases the proportionate number of shares beneficially
owned by a Person to l5% or more of the Common Stock of the Company then
outstanding as determined above; provided, however, that if a
Person becomes the Beneficial Owner of l5% or more of the Common Stock of the
Company then outstanding (as determined above) solely by reason of acquisitions
of Common Stock by the Company and shall, after such acquisitions by the
Company, become the Beneficial Owner of any additional shares of Common Stock
by
any means whatsoever, then such Person shall be deemed to be an "Acquiring
Person." Any
KEY TECHNOLOGY, INC. PAGE 2
SECOND
AMENDED AND RESTATED RIGHTS PLAN
determination
made by the Board of Directors as to whether any Person is or is not an
"Acquiring Person" shall be conclusive and binding upon all holders of
Rights.
(b) "Adverse
Person" shall mean any Person declared to be an Adverse Person by the Board
of
Directors upon determination that the criteria set forth in
Section 11(a)(ii)(B) apply to such Person; provided, however,
that the Board of Directors shall not declare any Person who is the Beneficial
Owner of 10% or more of the outstanding Common Stock of the Company to be an
Adverse Person if such Person has reported or is required to report such
ownership on Schedule 13G under the Exchange Act (or any comparable or successor
report) or on Schedule 13D under the Exchange Act (or any comparable or
successor report) which Schedule 13D does not state any intention to or reserve
the right to control or influence the management or policies of the Company
or
engage in any of the actions specified
in
Item 4
of such Schedule (other than the disposition of the Common Stock) so long as
such Person neither reports nor is required to report such ownership other
than
as described in this paragraph (b).
(c) "Affiliate"
and "Associate" shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under the Exchange Act, as
in
effect on the date of this Agreement.
(d) A
Person shall be deemed the "Beneficial Owner" of, and shall be deemed to
"beneficially own," any securities:
(i) which
such Person or any of such Person's Affiliates or Associates, directly or
indirectly, has the right to acquire (whether such right is exercisable
immediately or only after the passage of time) pursuant to any agreement,
arrangement or understanding (whether or not in writing) or upon the exercise
of
conversion rights, exchange rights, rights, warrants or options, or otherwise;
provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own:" (A) securities
tendered pursuant to a tender or exchange offer made by such Person or any
of
such Person's Affiliates or Associates until such tendered securities are
accepted for purchase or exchange; or (B) securities
issuable
upon exercise of Rights at any time prior to the occurrence of a Triggering
Event; or (C) securities issuable upon exercise of Rights from and after
the occurrence of a Triggering Event which Rights were acquired by such Person
or any of such Person's Affiliates or Associates prior to the Distribution
Date
or pursuant to Section 3(a) or Section 22 hereof (the "Original Rights") or
pursuant to Section 11(i) hereof in connection with an adjustment made with
respect to any Original Rights;
(ii) which
such Person or any of such Person's Affiliates or Associates, directly or
indirectly, has the right to vote or dispose of or has "beneficial ownership"
of
(as determined pursuant to Rule 13d-3 of the General Rules and Regulations
under
the Exchange Act, as in effect on the date of this Agreement), including
pursuant to any agreement, arrangement or understanding, whether or not in
writing; provided, however, that a Person shall not be deemed the
"Beneficial Owner" of, or to "beneficially own," any security under
this
KEY TECHNOLOGY, INC. PAGE 3
SECOND
AMENDED AND RESTATED RIGHTS PLAN
subparagraph
(ii) as a result of an agreement, arrangement or understanding to vote such
security if such agreement, arrangement or
understanding: (A) arises solely from a revocable proxy given in
response to a public proxy or consent solicitation made pursuant to, and in
accordance with, the applicable provisions of the General Rules and Regulations
under the Exchange Act, and (B) is not also then reportable by such Person
on Schedule 13D under the Exchange Act (or any comparable or successor report);
or
(iii) which
are beneficially owned, directly or indirectly, by any other Person (or an
Affiliate or Associate thereof) with which such Person (or any of such Person's
Affiliates or Associates) has any agreement, arrangement or understanding
(whether or not in writing), for the purpose of acquiring, holding, voting
(except pursuant to a revocable proxy as described in the proviso to
subparagraph (ii) of this paragraph (c)) or disposing of any voting securities
of the Company; provided, however, that nothing in this paragraph
(c) shall cause a person engaged in business as an underwriter of securities
to
be the "Beneficial Owner" of, or to "beneficially own," any securities acquired
through such person’s participation in good faith in a firm commitment
underwriting until the expiration of 40 days after the date of such
acquisition.
(e) "Business
Day" shall mean any day other than a Saturday, Sunday or a day on which banking
institutions in the State of Oregon are authorized or obligated by law or
executive order to close.
(f) "Close
of Business" on any given date shall mean 5:00 p.m., Pacific time, on such
date; provided, however, that if such date is not a Business Day
it shall mean 5:00 p.m., Pacific time, on the next succeeding Business
Day.
(g) "Common
Stock" shall mean the common stock, par value $.01 per share, of the Company,
except that "Common Stock" when used with reference to any Person other than
the
Company shall mean the capital stock of such Person with the greatest voting
power, or the equity securities or other equity interest having power to control
or direct the management, of such Person.
(h) "Person"
shall mean any individual, firm, corporation, partnership, limited liability
company or other entity.
(i) "Preferred
Stock" shall mean shares of Series A Junior Participating Preferred Stock of
the
Company, and, to the extent that there is not a sufficient number of shares
of
Series A Junior Participating Preferred Stock authorized to permit the full
exercise of the Rights, any other series of Preferred Stock of the Company
designated for such purpose containing terms substantially similar to the terms
of the Series A Junior Participating Preferred Stock.
(j) "Purchase
Price" shall mean the price to be paid for each 1/1,000 of a share of Preferred
Stock pursuant to the exercise of a Right, which price is, as of the
date
KEY TECHNOLOGY, INC. PAGE 4
SECOND
AMENDED AND RESTATED RIGHTS PLAN
hereof,
as set forth in Section 7(b) hereof. The Purchase Price is
subject to adjustment from time to time as set forth in Sections 11 and 13
hereof.
(k) "Section
11(a)(ii) Event" shall mean any event described in Section 11(a)(ii)
hereof.
(l) "Section
13 Event" shall mean any event described in clauses (i),(ii) or (iii) of Section
13(a) hereof.
(m) "Stock
Acquisition Date" shall mean the first date of public announcement (which,
for
purposes of this definition, shall include, without limitation, a report filed
pursuant to Section 13(d) under the Exchange Act) by the Company or an Acquiring
Person that an Acquiring Person has become such.
(n) "Subsidiary"
shall mean, with reference to any Person, any corporation of which an amount
of
voting securities sufficient to elect at least a majority of the directors
of
such corporation is beneficially owned, directly
or
indirectly, by such Person, or otherwise controlled by such Person.
(o) "Triggering
Event" shall mean any Section 11(a)(ii) Event or any Section 13
Event.
Section
2. Appointment
of Rights Agent.
The
Company hereby appoints the Rights
Agent to act as agent for the Company in accordance with the terms and
conditions hereof, and the Rights Agent hereby accepts such
appointment. The Company may from time to time appoint such Co-Rights
Agents as it may deem necessary or desirable. The Rights Agent shall
in no way be held responsible for the actions of any such Co-Rights
Agent.
Section
3. Issue
of Rights Certificates.
(a) Until
the earliest of: (i) the Close of Business on the twentieth
Business Day after the Stock Acquisition Date; (ii) the Close of Business
on the tenth Business Day (or such later date as the Board of Directors shall
determine) after the date that a tender or exchange offer by any Person (other
than the Company, any Subsidiary of the Company, any employee benefit plan
of
the Company or of any Subsidiary of the Company, or any Person or entity
organized, appointed or established by the Company for or pursuant to the terms
of any such plan) is first published or sent or given within the meaning of
Rule
14d-2(a) of the General Rules and Regulations under the Exchange Act, as in
effect on the date of this Agreement, if upon consummation thereof, such Person
would be the Beneficial Owner of l5% or more of the shares of Common Stock
then
outstanding; or (iii) the Close of Business on the tenth Business Day after
the Board of Directors determines, pursuant to the criteria set forth in
Section 11(a)(ii)(B) hereof, that a Person is an Adverse Person (the
earliest of (i), (ii) and (iii)
KEY
TECHNOLOGY, INC. PAGE 5
SECOND
AMENDED AND RESTATED RIGHTS PLAN
being
herein referred to as the "Distribution Date"), then the following shall
apply: (x) the Rights will be evidenced (subject to the
provisions of paragraph (b) of this Section 3) by the certificates for
the Common Stock registered in the names of the holders of the Common Stock
(which certificates for Common Stock shall be deemed also to be certificates
for
Rights) and not by separate certificates, and (y) the Rights will be
transferable only in connection with the transfer of the underlying shares
of
Common Stock (including a transfer to the Company). As soon as
practicable after the Distribution Date, the Rights Agent will send by
first-class, postage prepaid mail, to each holder of the Common Stock as of
the
Close of Business on the Distribution Date, at the address of such holder shown
on the records of the Company, one or more right certificates, in substantially
the form of Exhibit B hereto (the "Rights Certificates"), evidencing one Right
for each share of Common Stock so held, subject to adjustment as provided
herein. In the event that an adjustment in the number of Rights per
share of Common Stock has been made pursuant to Section 11(p) hereof, at
the time of distribution of the Rights Certificates, the Company shall make
the
necessary and appropriate rounding adjustments (in accordance with
Section 14(a) hereof) so that Rights Certificates representing only whole
numbers of Rights are distributed and cash is paid in lieu of any fractional
Rights. As of and after the Distribution Date, the Rights will be
evidenced solely by such Rights Certificates.
(b) With
respect to certificates for the shares of Common Stock outstanding as of the
Record Date, until the Distribution Date, the Rights will be evidenced by such
certificates for the Common Stock and the registered holders of the Common
Stock
shall also be the registered holders of the associated Rights. Until
the earlier of the Distribution Date or the Expiration Date (as such term is
defined in Section 7 hereof), the transfer of any certificates representing
shares of Common Stock in respect of which Rights have been issued shall also
constitute the transfer of the Rights associated with such shares of Common
Stock.
(c) Rights
shall be issued in respect of all shares of Common Stock which are issued
(whether originally issued or from the Company's treasury) after the Record
Date
but prior to the earlier of the Distribution Date or the Expiration Date or
in
certain circumstances provided in Section 22 hereof, after the Distribution
Date. Certificates representing such shares of Common Stock shall
also be deemed to be certificates for Rights, and shall bear the following
legend:
This
certificate also evidences and entitles the holder hereof to certain Rights
as
set forth in the Second Amended and Restated Rights Agreement between Key
Technology, Inc. (the "Corporation") and American Stock Transfer & Trust
Company (the "Rights Agent"), dated as of November 13, 2007, as amended from
time to time (the "Rights Agreement"), the terms of which are hereby
incorporated herein by reference and a copy of which is on file at the principal
offices of the Corporation. Under certain circumstances, as set forth
in the Rights Agreement, such Rights will be evidenced by separate certificates
and will no longer be evidenced by this certificate. The Corporation
will mail to the
KEY TECHNOLOGY, INC. PAGE 6
SECOND
AMENDED AND RESTATED RIGHTS PLAN
holder
of
this certificate a copy of the Rights Agreement, as in effect on the date of
mailing, without charge promptly after receipt of a written request
therefor. Under certain circumstances set forth in the Rights
Agreement, Rights issued to, or held by, any Person who is, was or becomes
an
Acquiring Person or an Adverse Person or any Affiliate or Associate thereof
(as
such terms are defined in the Rights Agreement), whether currently held by
or on
behalf of such Person or by any subsequent holder, may become null and
void.
With
respect to certificates containing the foregoing legend, until the earlier
of
(i) the Distribution Date or (ii) the Expiration Date, the Rights associated
with the Common Stock represented by such certificates shall be evidenced by
such certificates alone and registered holders of Common Stock shall also be
the
registered holders of the associated Rights, and the transfer of any of such
certificates shall also constitute the transfer of the Rights associated with
the Common Stock represented by such certificates.
Section
4. Form
of Rights Certificates.
(a) The
Rights Certificates (and the forms of election to purchase and of assignment
to
be printed on the reverse thereof), when, as and if issued, shall each be
substantially in the form set forth in Exhibit B hereto and may have such
marks of identification or designation and such legends, summaries or
endorsements printed thereon as the Company may deem appropriate and as are
not
inconsistent with the provisions of this Agreement, or as may be required to
comply with any applicable law or with any rule or regulation made pursuant
thereto or with any rule or regulation of any stock exchange or transaction
reporting system on which the Rights may from time to time be listed or traded,
or to conform to usage. Subject to the provisions of Sections 11
and 22 hereof, the Rights Certificates, whenever issued, which are issued in
respect of Common Stock which was issued and outstanding as of the Close of
Business on the Distribution Date, shall be dated as of the Distribution Date,
and on their face shall entitle the holders thereof to purchase such number
of
1/1,000s of a share of Preferred Stock as shall be set forth therein at the
price set forth therein (such exercise price per 1/1,000 of a share, the
"Purchase Price"), but the amount and type of securities purchasable upon the
exercise of each Right and the Purchase Price thereof shall be subject to
adjustment as provided herein.
(b) Any
Rights Certificate issued pursuant to Section 3(a) or 22 hereof that represents
Rights beneficially owned by: (i) an Acquiring Person or Adverse
Person or any Associate or Affiliate of an Acquiring Person or Adverse Person;
(ii) a transferee of an Acquiring Person or Adverse Person (or of any such
Associate or Affiliate) who becomes a transferee after the Acquiring Person
or
Adverse Person becomes such; or (iii) a transferee of an Acquiring Person
or Adverse Person (or of any such Associate or Affiliate) who becomes a
transferee prior to or concurrently with the Acquiring Person or Adverse Person
becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person or Adverse Person
to holders of equity interests in such Acquiring Person or
KEY TECHNOLOGY, INC. PAGE 7
SECOND
AMENDED AND RESTATED RIGHTS PLAN
Adverse
Person or to any Person with whom such Acquiring Person or Adverse Person has
any continuing agreement, arrangement or understanding regarding the transferred
Rights or (B) a transfer which the Board of Directors of the Company has
determined is part of a plan, arrangement or understanding which has as a
primary purpose or effect avoidance of Section 7(e) hereof, and any Rights
Certificate issued pursuant to Section 6 or 11 hereof upon transfer,
exchange, replacement or adjustment of any other Rights Certificate referred
to
in this sentence, shall contain (to the extent feasible) the following
legend:
The
Rights represented by this Rights Certificate are or were beneficially owned
by
a Person who was or became an Acquiring Person or Adverse Person or an Affiliate
or Associate of an Acquiring Person or Adverse Person (as such terms are defined
in the Rights Agreement). Accordingly, this Rights Certificate and
the Rights represented hereby may become null and void in the circumstances
specified in Section 7(e) of such Agreement.
Section
5. Countersignature
and Registration.
(a) The
Rights Certificates shall be executed on behalf of the Company by its Chairman
of the Board, its President or any Vice President, manually or by facsimile
signature, and shall have affixed thereto the Company's seal or a facsimile
thereof which shall be attested by the Secretary or an Assistant Secretary
of
the Company, either manually or by facsimile signature. The Rights
Certificates shall be countersigned by the Rights Agent, either manually or
by
facsimile signature, and shall not be valid for any purpose unless so
countersigned. In case any officer of the Company who shall have
signed any of the Rights Certificates shall cease to be such officer of the
Company before countersignature by the Rights Agent and issuance and delivery
by
the Company, such Rights Certificates, nevertheless, may be countersigned by
the
Rights Agent and issued and delivered by the Company with the same force and
effect as though the person who signed such Rights Certificates had not ceased
to be such officer of the Company; and any Rights Certificates may be signed
on
behalf of the Company by any person who, at the actual date of the execution
of
such Rights Certificate, shall be a proper officer of the Company to sign such
Rights Certificate, although at the date of the execution of this Rights
Agreement any such person was not such an officer.
(b) Following
the Distribution Date, the Rights Agent will keep or cause to be kept, at its
principal office or offices designated as the appropriate place for surrender
of
Rights Certificates upon exercise or transfer, books for registration and
transfer of the Rights Certificates issued hereunder. Such books
shall show the names and addresses of the respective holders of the Rights
Certificates, the number of Rights evidenced on its face by each of the Rights
Certificates and the date of each of the Rights Certificates.
KEY TECHNOLOGY, INC. PAGE 8
SECOND
AMENDED AND RESTATED RIGHTS PLAN
Section
6. Transfer,
Split Up, Combination and Exchange of Rights Certificates;
Mutilated,
Destroyed, Lost or Stolen Rights Certificates.
(a) Subject
to the provisions of Sections 4(b), 7(e) and l4 hereof, at any time after
the Close of Business on the Distribution Date, and at or prior to the Close
of
Business on the Expiration Date, any Rights Certificate (other than a Rights
Certificate representing Rights that have been exchanged pursuant to Section
24
hereof) may be transferred, split up, combined or exchanged for another Rights
Certificate, entitling the registered holder to purchase a like number of
1/1,000s of a share of Preferred Stock (or, following a Triggering Event, Common
Stock, other securities, cash or other assets, as the case may be) as the Rights
Certificate surrendered then entitled such holder (or former holder in the
case
of a transfer) to purchase. Any registered holder desiring to
transfer, split up, combine or exchange any Rights Certificate or Certificates
shall make such request in writing delivered to the Rights Agent, and shall
surrender the Rights Certificate to be transferred, split up, combined or
exchanged at the principal office or offices of the Rights Agent designated
for
such purpose. Neither the Rights Agent nor the Company shall be
obligated to take any action whatsoever with respect to the transfer of any
such
surrendered Rights Certificate until the registered holder shall have completed
and signed the certificate contained in the form of assignment on the reverse
side of such Rights Certificate and shall have provided such additional evidence
of the identity of the Beneficial Owner (or former Beneficial Owner) or
Affiliates or Associates thereof as the Company or Rights Agent shall reasonably
request. Thereupon the Rights Agent shall, subject to
Sections 4(b), 7(e), 14 and 24 hereof, countersign and deliver to the
Person entitled thereto a Rights Certificate or Rights Certificates, as the
case
may be, as so requested. The Company may require payment of a sum
sufficient to cover any tax or governmental charge that may be imposed in
connection with any transfer, split up, combination or exchange of Rights
Certificates.
(b) Upon
receipt by the Company and the Rights Agent of evidence reasonably satisfactory
to them of the loss, theft, destruction or mutilation of a Rights Certificate,
and, in case of loss, theft or destruction, of indemnity or security reasonably
satisfactory to them, and reimbursement to the Company and the Rights Agent
of
all reasonable expenses incidental thereto, and upon surrender to the Rights
Agent and cancellation of the Rights Certificate if mutilated, the Company
will
execute and deliver a new Rights Certificate of like tenor to the Rights Agent
for countersignature and delivery to the registered owner in lieu of the Rights
Certificate so lost, stolen, destroyed or mutilated.
Section
7. Exercise
of Rights; Purchase Price; Expiration Date of Rights.
(a) Subject
to Section 7(e) hereof, the registered holder of any Rights Certificate may
exercise the Rights evidenced thereby (except as otherwise provided herein
including, without limitation, the restrictions on exercisability set forth
in
Sections 9(c), 11(a)(iii) and 23(a) hereof) in whole or in part at any time
after the Distribution Date upon surrender of the Rights Certificate, with
the
form of election to purchase and the certificate on the reverse side thereof
duly executed, to the Rights Agent at the principal office or offices of the
Rights Agent
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AMENDED AND RESTATED RIGHTS PLAN
designated
for such purpose, together with payment of the aggregate Purchase Price with
respect to the total number of 1/1,000s of a share (or other securities, cash
or
other assets, as the case may be) as to which such surrendered Rights are then
exercisable, at or prior to the earliest of: (i) the Close of
Business on November 13, 2017 (the "Final Expiration Date"); (ii) the time
at which the Rights are redeemed (the "Redemption Date"), as provided in Section
23 hereof; or (iii) the time at which such Rights are exchanged (the
"Exchange Date"), as provided in Section 24 hereof (the earliest of (i),
(ii) and (iii) being herein referred to as the "Expiration Date").
(b) The
Purchase Price for each 1/1,000 of a share of Preferred Stock pursuant to the
exercise of a Right shall initially be $45.00, and shall be subject to
adjustment from time to time as provided in Sections 11 and 13(a) hereof and
shall be payable in accordance with paragraph (c) below.
(c) Upon
receipt of a Rights Certificate representing exercisable Rights, with the form
of election to purchase and the certificate duly executed, accompanied by
payment, with respect to each Right so exercised, of the Purchase Price per
1/1,000 of a share of Preferred Stock (or other shares, securities, cash or
other assets, as the case may be) to be purchased as set forth below and an
amount equal to any applicable transfer tax, the Rights Agent shall, subject
to
Section 20(k) hereof, thereupon promptly: (i)(A) requisition from any
transfer agent of the shares of Preferred Stock (or make available, if the
Rights Agent is the transfer agent for such shares) certificates for the total
number of 1/1,000s of a share of Preferred Stock to be purchased and the Company
hereby irrevocably authorizes its transfer agent to comply with all such
requests, or (B) if the Company shall have elected to deposit the total number
of shares of Preferred Stock issuable upon exercise of the Rights hereunder
with
a depository agent, requisition from the depository agent depository receipts
representing such number of 1/1,000s of a share of Preferred Stock as are to
be
purchased (in which case certificates for the shares of Preferred Stock
represented by such receipts shall be deposited by the transfer agent with
the
depository agent) and the Company will direct the depository agent to comply
with such request; (ii) requisition from the Company the amount of cash, if
any, to be paid in lieu of fractional shares in accordance with Section 14
hereof; (iii) after receipt of such certificates or depository receipts,
cause the same to be delivered to or upon the order of the registered holder
of
such Rights Certificate, registered in such name or names as may be designated
by such holder; and (iv) after receipt thereof, deliver such cash, if any,
to or upon the order of the registered holder of such Rights
Certificate. The payment of the Purchase Price (as such amount may be
adjusted pursuant to Section 11(a)(iii) hereof) shall be made in cash or by
certified bank check or bank draft payable to the order of the
Company. In the event that the Company is obligated to issue other
securities (including Common Stock) of the Company, pay cash and/or distribute
other property pursuant to Section 11(a) hereof, the Company will make all
arrangements necessary so that such other securities, cash and/or other property
are available for distribution by the Rights Agent, if and when
appropriate. The Company reserves the right to require prior to the
occurrence of a Triggering Event that, upon any exercise of Rights, a number
of
Rights be exercised so that only whole shares of Preferred Stock would be
issued. Notwithstanding the foregoing provisions of this
Section 7(c), the Company may suspend the issuance of
Preferred
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Stock
upon exercise of Rights for a reasonable period, not in excess of 120 days,
during which the Company seeks to register under the Securities Act of 1933,
as
amended (the "Securities Act"), and any applicable securities law of any
jurisdiction, the Preferred Stock to be issued pursuant to the Rights;
provided, however, that nothing contained in this
Section 7(c) shall relieve the Company of its obligations under
Section 9(c) hereof.
(d) In
case the registered holder of any Rights Certificate shall exercise less than
all the Rights evidenced thereby, a new Rights Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by the Rights
Agent and delivered to, or upon the order of, the registered holder of such
Rights Certificate, registered in such name or names as may be designated by
such holder, subject to the provisions of Section 14 hereof.
(e) Notwithstanding
anything in this Agreement to the contrary, from and after the first occurrence
of a Section 11(a)(ii) Event, any Rights beneficially owned by (i) an Acquiring
Person or Adverse Person or an Associate or Affiliate of an Acquiring Person
or
Adverse Person, (ii) a transferee of an Acquiring Person or Adverse Person
(or
of any such Associate or Affiliate) who becomes a transferee after the Acquiring
Person or Adverse Person becomes such, or (iii) a transferee of an Acquiring
Person or Adverse Person (or of any such Associate or Affiliate) who becomes
a
transferee prior to or concurrently with the Acquiring Person or Adverse Person
becoming such and receives such Rights pursuant to either (A) a transfer
(whether or not for consideration) from the Acquiring Person or Adverse Person
to holders of equity interests in such Acquiring Person or Adverse Person or
to
any Person with whom the Acquiring Person or Adverse Person has any continuing
agreement, arrangement or understanding regarding the transferred Rights or
(B)
a transfer which the Board of Directors of the Company has determined is part
of
a plan, arrangement or understanding which has as a primary purpose or effect
the avoidance of this Section 7(e), shall become null and void without any
further action, and no holder of such Rights (whether or not such holder is
an
Acquiring Person or an Adverse Person or an Affiliate or Associate of an
Acquiring Person or Adverse Person) shall have any rights whatsoever with
respect to such Rights, whether under any provision of this Agreement or
otherwise. The Company shall use all reasonable efforts to ensure
that the provisions of this Section 7(e) and Section 4(b) hereof are complied
with, but shall have no liability to any holder of Rights Certificates or other
Person as a result of the Company's failure to make any determination with
respect to an Acquiring Person or Adverse Person or any of their respective
Affiliates, Associates or transferees hereunder.
(f) Notwithstanding
anything in this Agreement to the contrary, neither the Rights Agent nor the
Company shall be obligated to undertake any action with respect to a registered
holder upon the occurrence of any purported exercise as set forth in this
Section 7 unless such registered holder shall
have: (i) completed and signed the certificate contained in the
form of election to purchase set forth on the reverse side of the Rights
Certificate surrendered for such exercise; and (ii) provided such
additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company or Rights
Agent shall reasonably request.
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AMENDED AND RESTATED RIGHTS PLAN
Section
8. Cancellation
and Destruction of Rights Certificates.
All
Rights Certificates surrendered for
the purpose of exercise, transfer, split up, combination or exchange shall,
if
surrendered to the Company or any of its agents, be delivered to the Rights
Agent for cancellation or in cancelled form, or, if surrendered to the Rights
Agent, shall be cancelled by it, and no Rights Certificates shall be issued
in
lieu thereof except as expressly permitted by any provision of this
Agreement. The Company shall deliver to the Rights Agent for
cancellation and retirement, and the Rights Agent shall so cancel and retire,
any other Rights Certificate purchased or acquired by the Company otherwise
than
upon the exercise thereof. The Rights Agent shall deliver all
cancelled Rights Certificates to the Company or shall, at the written request
of
the Company, destroy such cancelled Rights Certificates, and in such case shall
deliver a certificate of destruction thereof to the Company.
Section
9. Reservation
and Availability of Capital Stock.
(a) The
Company covenants and agrees that it will cause to be reserved and kept
available out of its authorized and unissued shares of Preferred Stock (and,
following the occurrence of a Triggering Event, out of its authorized and
unissued shares of Common Stock and/or other securities or out of its authorized
and issued shares held in its treasury), the number of shares of Preferred
Stock
(and, following the occurrence of a Triggering Event, Common Stock and/or other
securities) that, as provided in this Agreement including Section 11(a)(iii)
hereof, will be sufficient to permit the exercise in full of all outstanding
Rights.
(b) So
long as the shares of Preferred Stock (and, following the occurrence of a
Triggering Event, Common Stock and/or other securities) issuable and deliverable
upon the exercise of the Rights may be listed on any national securities
exchange or included for quotation on any transaction reporting system, the
Company shall use its best efforts to cause, from and after such time as the
Rights become exercisable (but only to the extent that it is reasonably likely
that the Rights will be exercised), all shares reserved for such issuance to
be
listed on such exchange or included for quotation on such transaction reporting
system upon official notice of issuance upon such exercise.
(c) The
Company shall use its best efforts to: (i) file, as soon as
practicable following the earliest date after the first occurrence of a Section
11(a)(ii) Event on which the consideration to be delivered by the Company upon
exercise of the Rights has been determined in accordance with
Section 11(a)(iii) hereof, a registration statement under the Securities
Act with respect to the securities purchasable upon exercise of the Rights
on an
appropriate form; (ii) cause such registration statement to become
effective as soon as practicable after such filing; and (iii) cause such
registration statement to remain effective (with a prospectus at all times
meeting the requirements of the Securities Act) until the earlier of
(A) the date as of which the Rights are no longer exercisable for such
securities, and (B) the Expiration Date. The Company may
temporarily suspend, for a period of time not to exceed 120 days after the
date
set forth in clause (i) of the first sentence of this Section 9(c), the
exercisability of the Rights in order to prepare and file such registration
statement and permit it to become effective. Upon any
such
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AMENDED AND RESTATED RIGHTS PLAN
suspension,
the Company shall issue a public announcement stating that the exercisability
of
the Rights has been temporarily suspended, as well as a public announcement
at
such time as the suspension is no longer in effect. In addition, if
the Company shall determine that a registration statement is required following
the Distribution Date, the Company may temporarily suspend the exercisability
of
the Rights until such time as a registration statement has been declared
effective. Notwithstanding any provision of this Agreement to the
contrary, the Rights shall not be exercisable in any jurisdiction if the
requisite qualification in such jurisdiction shall not have been obtained,
the
exercise thereof shall not be permitted under applicable law or a registration
statement shall not have been declared effective.
(d) The
Company covenants and agrees that it will take all such action as may be
necessary to ensure that all 1/1,000s of a share of Preferred Stock (and,
following the occurrence of a Triggering Event, Common Stock and/or other
securities) delivered upon exercise of Rights shall, at the time of delivery
of
the certificates for such shares (subject to payment of the Purchase Price),
be
duly and validly authorized and issued and fully paid and
nonassessable.
(e) The
Company further covenants and agrees that it will pay when due and payable
any
and all federal and state transfer taxes and charges which may be payable in
respect of the issuance or delivery of the Rights Certificates and of any
certificates for a number of 1/1,000s of a share of Preferred Stock (or Common
Stock and/or other securities, as the case may be) upon the exercise of
Rights. The Company shall not, however, be required to pay any
transfer tax which may be payable in respect of any transfer or delivery of
Rights Certificates to a Person other than, or the issuance or delivery of
a
number of 1/1,000s of a share of Preferred Stock (or Common Stock and/or other
securities, as the case may be) in respect of a name other than that of, the
registered holder of the Rights Certificates evidencing Rights surrendered
for
exercise or to issue or deliver any certificates for a number of 1/1,000s of
a
share of Preferred Stock (or Common Stock and/or other securities, as the case
may be) in a name other than that of the registered holder upon the exercise
of
any Rights until such tax shall have been paid (any such tax being payable
by
the holder of such Rights Certificate at the time of surrender) or until it
has
been established to the Company’s satisfaction that no such tax is
due.
Section
10. Preferred
Stock Record Date.
Each
Person in whose name any
certificate for a number of 1/1,000s of a share of Preferred Stock (or for
Common Stock and/or other securities, as the case may be) is issued upon the
exercise of Rights shall for all purposes be deemed to have become the holder
of
record of the Preferred Stock (or Common Stock and/or other securities, as
the
case may be) represented thereby on, and such certificate shall be dated, the
date upon which the Rights Certificate evidencing such Rights was duly
surrendered and payment of the Purchase Price (and all applicable transfer
taxes) was made; provided, however, that if the date of such
surrender and payment is a date upon which the Preferred Stock (or Common Stock
and/or other securities, as the case may be) transfer books of the Company
are
closed, such Person shall be deemed to have become the record holder of such
shares (fractional or otherwise) on, and such certificate shall
be
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AMENDED AND RESTATED RIGHTS PLAN
dated,
the next succeeding Business Day on which the Preferred Stock (or Common Stock
and/or other securities, as the case may be) transfer books of the Company
are
open. Prior to the exercise of the Rights evidenced thereby, the
holder of a Rights Certificate shall not be entitled to any rights of a
shareholder of the Company with respect to shares for which the Rights shall
be
exercisable, including, without limitation, the right to vote, to receive
dividends or other distributions or to exercise any preemptive rights, and
shall
not be entitled to receive any notice of any proceedings of the Company, except
as provided herein.
Section
11. Adjustment
of Purchase Price, Number and Kind of
Shares
or Number of Rights.
The
Purchase Price, the number and kind
of shares covered by each Right and the number of Rights outstanding are subject
to adjustment from time to time as provided in this Section 11.
(a) (i) In
the event the Company shall at any time after the date of this Agreement
(A) declare a dividend on the Preferred Stock payable in shares of
Preferred Stock, (B) subdivide the outstanding Preferred Stock,
(C) combine the outstanding Preferred Stock into a smaller number of
shares, or (D) issue any shares of its capital stock in a reclassification
of the Preferred Stock (including any such reclassification in connection with
a
consolidation or merger in which the Company is the continuing or surviving
corporation), then and in each such event, except as otherwise provided in
this
Section 11(a) and Section 7(e) hereof, the Purchase Price in effect at the
time
of the record date for such dividend or of the effective date of such
subdivision, combination or reclassification, and the number and kind of shares
of Preferred Stock or capital stock, as the case may be, issuable on such date,
shall be proportionately adjusted so that the holder of any Right exercised
after such time shall be entitled to receive, upon payment of the Purchase
Price
then in effect, the aggregate number and kind of shares of Preferred Stock
or
capital stock, as the case may be, which, if such Right had been exercised
immediately prior to such date and at a time when the Preferred Stock transfer
books of the Company were open, he or she would have owned upon such exercise
and been entitled to receive by virtue of such dividend, subdivision,
combination or reclassification. If an event occurs which would
require an adjustment under both this Section 11(a)(i) and
Section 11(a)(ii) hereof, the adjustment provided for in this
Section 11(a)(i) shall be in addition to, and shall be made prior to, any
adjustment required pursuant to Section 11(a)(ii) hereof.
(ii) In
the event that:
(A) any
Person (other than
the Company, any Subsidiary of the Company, any employee benefit plan of the
Company or of any Subsidiary of the Company, or any Person or entity organized,
appointed or established by the Company for or pursuant to the terms of any
such
plan), alone or together with its Affiliates and Associates, shall become an
Acquiring Person, unless the event causing the Person to become an Acquiring
Person is (l) a transaction set forth in Section 13(a) hereof or (2) an
acquisition of shares of Common Stock pursuant to
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AMENDED AND RESTATED RIGHTS PLAN
a
tender
offer or an exchange offer for all outstanding shares of Common Stock at a
price
and on terms determined by at least a majority of the members of the Board
of
Directors who are not officers of the Company and who are not representatives,
nominees, Affiliates or Associates of an Acquiring Person, after receiving
advice from one or more reputable investment banking firms, to be (a) at a
price
which is fair to shareholders (taking into account all factors which such
members of the Board of Directors deem relevant including, without limitation,
prices which could reasonably be achieved if the Company or its assets were
sold
on an orderly basis designed to realize maximum value) and (b) otherwise in
the
best interests of the Company and its shareholders (a "Qualifying Offer");
or
(B) the
Board of Directors
of the Company shall declare any Person to be an Adverse Person, upon a
determination that such Person, alone or together with its Affiliates and
Associates, has, at any time after this Agreement has been filed with the
Securities and Exchange Commission as an exhibit to a filing under the
Securities Act or Exchange Act, become the Beneficial Owner of a number of
shares of Common Stock which the Board of Directors of the Company determines
to
be substantial (which number of shares shall in no event represent less than
l0%
of the outstanding shares of Common Stock) and a determination by the Board
of
Directors of the Company, after reasonable inquiry and investigation, including
consultation with such persons as such directors shall deem appropriate and
consideration of such factors as are permitted by applicable law, that (a)
such
Beneficial Ownership by such Person is intended to cause the Company to
repurchase the shares of Common Stock beneficially owned by such Person or
to
cause pressure on the Company to take action or enter into a transaction or
series of transactions intended to provide such Person with short-term financial
gain under circumstances where the Board of Directors determines that the best
long-term interests of the Company would not be served by taking such action
or
entering into such transaction or series of transactions at the time or (b)
such
Beneficial Ownership is causing or reasonably likely to cause a material adverse
impact (including, but not limited to, impairment of relationships with
customers or impairment of the Company’s ability to maintain its competitive
position) on the business or prospects of the Company;
then,
promptly following the occurrence of any event described in Section 11(a)(ii)(A)
or (B) hereof (a "Section 11(a)(ii) Event"), proper provision shall be made
so that each holder of a Right (except as provided below and in
Section 7(e) hereof) shall thereafter have the right to receive, upon
exercise thereof at the then current Purchase Price in accordance with the
terms
of this Agreement, in lieu of a number of 1/1,000s of a share of Preferred
Stock, such number of shares of Common Stock of the Company as shall equal
the
result obtained by (x) multiplying the then current Purchase Price by the then
number of 1/1,000s of a share of Preferred Stock for which a Right was
exercisable immediately prior to the first occurrence of a Section 11(a)(ii)
Event, and (y) dividing that product (which, following such first occurrence,
shall thereafter be referred to as the "Purchase Price" for each Right and
for
all purposes of this Agreement) by 50% of the current
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AMENDED AND RESTATED RIGHTS PLAN
market
price (determined pursuant to Section 11(d) hereof) per share of Common Stock
on
the date of such first occurrence (such number of shares, the "Adjustment
Shares").
(iii) In
the event that the number of shares of Common Stock which are authorized by
the
Company's Restated Articles of Incorporation, as amended at the time (the
"Restated Articles of Incorporation"), but not outstanding or reserved for
issuance for purposes other than upon exercise of the Rights are not sufficient
to permit the exercise in full of the Rights in accordance with the foregoing
subparagraph (ii) of this Section 11(a), the Company
shall: (A) determine the value of the Adjustment Shares issuable
upon the exercise of a Right (the "Current Value"); and (B) with respect to
each Right (subject to Section 7(e) hereof), make adequate provision to
substitute for the Adjustment Shares, upon the exercise of a Right and payment
of the applicable Purchase Price: (l) cash, (2) a reduction in the
Purchase Price, (3) Common Stock or other equity securities of the Company
(including, without limitation, shares, or units of shares, of preferred stock,
such as the Preferred Stock, which the Board has deemed to have essentially
the
same value or economic rights as shares of Common Stock (such shares of
preferred stock being referred to as "Common Stock Equivalents")), (4) debt
securities of the Company, (5) other assets, or (6) any combination of
the foregoing, having an aggregate value equal to the Current Value (less the
amount of any reduction in the Purchase Price), where such aggregate value
has
been determined by the Board of Directors based upon the advice of a reputable
investment banking firm selected by the Board of Directors; provided,
however, that if the Company shall not have made adequate provision
to
deliver value pursuant to clause (B) above within 30 days following the
later of (x) the first occurrence of a Section 11(a)(ii) Event and (y) the
date
on which the Company's right of redemption pursuant to Section 23(a) expires
(the later of (x) and (y) being referred to herein as the "Section 11(a)(ii)
Trigger Date"), then the Company shall be obligated to deliver, upon the
surrender for exercise of a Right and without requiring payment of the Purchase
Price, shares of Common Stock (to the extent available) and then, if necessary,
cash, which shares and/or cash have an aggregate value equal to the
Spread. For purposes of the preceding sentence, the term "Spread"
shall mean the excess of (i) the Current Value over (ii) the Purchase
Price. If the Board determines in good faith that it is likely that
sufficient additional shares of Common Stock could be authorized for issuance
upon exercise in full of the Rights, the 30-day period set forth above may
be
extended to the extent necessary, but not more than 90 days after the
Section 11(a)(ii) Trigger Date, in order that the Company may seek shareholder
approval for the authorization of such additional shares (such 30-day period,
as
it may be extended, is herein called the "Substitution Period"). To
the extent that action is to be taken pursuant to the first and/or third
sentences of this Section 11(a)(iii), the Company (l) shall provide, subject
to
Section 7(e) hereof, that such action shall apply uniformly to all outstanding
Rights, and (2) may suspend the exercisability of the Rights until the
expiration of the Substitution Period in order to seek such shareholder approval
for such authorization of additional shares and/or to decide the appropriate
form of distribution to be made pursuant to such first sentence and to determine
the value thereof. In the event of any such suspension, the Company
shall issue a public announcement stating that the exercisability of the Rights
has been temporarily suspended, as well as a public announcement at such time
as
the suspension is no longer in effect. For purposes of this Section
11(a)(iii), the value of each Adjustment Share shall be the Current Market
Price
per share of the Common Stock on the Section 11(a)(ii) Trigger
Date
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AMENDED AND RESTATED RIGHTS PLAN
and
the
per-share or per-unit value of any Common Stock Equivalent shall be deemed
to
equal the Current Market Price per share of the Common Stock on such
date.
(b) In
case the Company shall fix a record date for the issuance of rights (other
than
the Rights), options or warrants to all holders of Preferred Stock entitling
them to subscribe for or purchase (for a period expiring within 45 calendar
days after such record date) Preferred Stock (or shares having the same rights,
privileges as the shares of Preferred Stock ("equivalent preferred stock"))
or
securities convertible into Preferred Stock or equivalent preferred stock at
a
price per share of Preferred Stock or per share of equivalent preferred stock
(or having a conversion price per share, if a security convertible into
Preferred Stock or equivalent preferred stock) less than the Current Market
Price (as determined pursuant to Section 11(d) hereof) per share of Preferred
Stock on such record date, the Purchase Price to be in effect after such record
date shall be determined by multiplying the Purchase Price in effect immediately
prior to such record date by a fraction, the numerator of which shall be the
number of shares of Preferred Stock outstanding on such record date, plus the
number of shares of Preferred Stock which the aggregate offering price of the
total number of shares of Preferred Stock and/or equivalent preferred stock
so
to be offered (and/or the aggregate initial conversion price of the convertible
securities so to be offered) would purchase at such Current Market Price, and
the denominator of which shall be the number of shares of Preferred Stock
outstanding on such record date, plus the number of additional shares of
Preferred Stock and/or equivalent preferred stock to be offered for subscription
or purchase (or into which the convertible securities so to be offered are
initially convertible). In case such subscription price may be paid
by delivery of consideration part or all of which may be in a form other than
cash, the value of such consideration shall be as determined in good faith
by
the Board of Directors of the Company, whose determination shall be described
in
a statement filed with the Rights Agent and shall be binding on the Rights
Agent
and the holders of the Rights. Shares of Preferred Stock owned by or
held for the account of the Company shall not be deemed outstanding for the
purpose of any such computation. Such adjustments shall be made
successively whenever such a record date is fixed, and in the event that such
rights or warrants are not so issued, the Purchase Price shall be adjusted
to be
the Purchase Price which would then be in effect if such record date had not
been fixed.
(c) In
case the Company shall fix a record date for a distribution to all holders
of
Preferred Stock (including any such distribution made in connection with a
consolidation or merger in which the Company is the continuing corporation)
of
evidences of indebtedness, cash (other than a regular quarterly cash dividend
out of the earnings or retained earnings of the Company), assets (other than
a
dividend payable in Preferred Stock, but including any dividend payable in
stock
other than Preferred Stock) or subscription rights or warrants (excluding those
referred to in Section 11(b) hereof), the Purchase Price to be in effect after
such record date shall be determined by multiplying the Purchase Price in effect
immediately prior to such record date by a fraction, the numerator of which
shall be the Current Market Price (as determined pursuant to Section 11(d)
hereof) per share of Preferred Stock on such record date, less the fair market
value (as determined in good faith by the Board of Directors of the Company,
whose determination shall be described in a statement filed with the Rights
Agent and shall be
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AMENDED AND RESTATED RIGHTS PLAN
binding
on the Rights Agent and the holders of the Rights) of the portion of the cash,
assets or evidences of indebtedness so to be distributed or of such subscription
rights or warrants applicable to a share of Preferred Stock and the denominator
of which shall be such Current Market Price (as determined pursuant to Section
11(d) hereof) per share of Preferred Stock. Such adjustments shall be
made successively whenever such a record date is fixed, and in the event that
such distribution is not so made, the Purchase Price shall be adjusted to be
the
Purchase Price which would have been in effect if such record date had not
been
fixed.
(d) (i) For
the purpose of any computation hereunder, other than computations made pursuant
to Section 11(a)(iii) hereof, the Current Market Price per share of Common
Stock on any date shall be deemed to be the average of the daily closing prices
per share of such Common Stock for the 30 consecutive Trading Days
immediately prior to such date, and for purposes of computations made pursuant
to Section 11(a)(iii) hereof, the Current Market Price per share of Common
Stock
on any date shall be deemed to be the average of the daily closing prices per
share of such Common Stock for the 10 consecutive Trading Days immediately
following such date; provided, however, that in the event that the
Current Market Price per share of the Common Stock is determined during a period
following the announcement by the issuer of such Common Stock of (A) a dividend
or distribution on such Common Stock payable in shares of such Common Stock
or
securities convertible into shares of such Common Stock (other than the Rights),
or (B) any subdivision, combination or reclassification of such Common Stock,
and the ex-dividend date for such dividend or distribution, or the record date
for such subdivision, combination or reclassification shall not have occurred
prior to the commencement of the requisite 30 Trading Day or 10 Trading Day
period, as set forth above, then, and in each such case, the Current Market
Price shall be properly adjusted to take into account ex-dividend trading or
the
subdivision, combination or reclassification, as the case may be. The
closing price for each day shall be the last sale price, regular way, or, in
case no such sale takes place on such day, the average of the closing bid and
asked prices, regular way, in either case as reported in the principal
consolidated transaction reporting system with respect to securities listed
or
admitted to trading on the principal national securities exchange on which
the
shares of Common Stock are listed or admitted to trading or, if on any such
date
the shares of Common Stock are not quoted by any such exchange, the average
of
the closing bid and asked prices as furnished by a professional market maker
making a market in the Common Stock selected by the Board of Directors of the
Company. If on any such date no market maker is making a market in
the Common Stock, the fair va1ue of the Common Stock on such date as determined
in good faith by the Board of Directors shall be used. The term
"Trading Day" shall mean a day on which the principal national securities
exchange on which the shares of Common Stock are listed or admitted to trading
is open for the transaction of business or, if the shares of Common Stock are
not listed or admitted to trading on any national securities exchange, a
Business Day. If the Common Stock is not publicly held or not so
listed or traded, Current Market Price per share shall mean the fair value
per
share as determined in good faith by the Board of Directors, whose determination
shall be described in a statement filed with the Rights Agent and shall be
conclusive for all purposes.
KEY TECHNOLOGY, INC. PAGE 18
SECOND
AMENDED AND RESTATED RIGHTS PLAN
(ii) For
the purpose of any computation hereunder, the Current Market Price per share
(or
per 1/1,000 of a share) of Preferred Stock shall be determined in the same
manner as set forth above for the Common Stock in clause (i) of this
Section 11(d) (other than the last sentence thereof). If the
Current Market Price per share of Preferred Stock cannot be determined in the
manner provided above or if the Preferred Stock is not publicly held or listed
or traded in a manner described in clause (i) of this Section 11(d), the Current
Market Price per share of Preferred Stock shall be conclusively deemed to be
an
amount equal to 1,000 (as such number may be appropriately adjusted for such
events as stock splits, stock dividends, combinations, reclassifications,
recapitalizations and similar transactions with respect to the Common Stock
occurring after the date of this Agreement) multiplied by the Current Market
Price per share of the Common Stock. If neither the Common Stock nor
the Preferred Stock is publicly held or so listed or traded, Current Market
Price per share of the Preferred Stock shall mean the fair value per share
as
determined in good faith by the Board of Directors, whose determination shall
be
described in a statement filed with the Rights Agent and shall be conclusive
for
all purposes.
(e) Anything
herein to the contrary notwithstanding, no adjustment in the Purchase Price
shall be required unless such adjustment would require an increase or decrease
of at least 1% in the Purchase Price; provided, however, that any
adjustments which by reason of this Section 11(e) are not required to be
made shall be carried forward and taken into account in any subsequent
adjustment. All calculations under this Section 11 shall be made to
the nearest cent or to the nearest 1/10,000 of a share of Common Stock or other
share or 1/1,000,000 of a share of Preferred Stock, as the case may
be.
(f) If,
as a result of an adjustment made pursuant to Section 11(a)(ii) or Section
13(a)
hereof, the holder of any Right thereafter exercised shall become entitled
to
receive any shares of capital stock other than Preferred Stock, thereafter
the
number of such other shares so receivable upon exercise of any Right and the
Purchase Price thereof shall be subject to adjustment from time to time in
a
manner and on terms as nearly equivalent as practicable to the provisions with
respect to the Preferred Stock contained in this Section 11, and the
provisions of Sections 7, 9, 10, 13 and 14 hereof with respect to the Preferred
Stock shall apply on like terms to any such other shares.
(g) All
Rights originally issued by the Company subsequent to any adjustment made to
the
Purchase Price hereunder shall evidence the right to purchase, at the adjusted
Purchase Price, the number of 1/1,000s of a share of Preferred Stock purchasable
from time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.
(h) Unless
the Company shall have exercised its election as provided in Section 11(i),
upon
each adjustment of the Purchase Price as a result of the calculations made
in
Sections 11(b) and (c), each Right outstanding immediately prior to the
making of such adjustment shall thereafter evidence the right to purchase,
at
the adjusted Purchase Price, that number of 1/1,000s of a share of Preferred
Stock (calculated to the nearest 1/1,000,000) obtained
KEY TECHNOLOGY, INC. PAGE 19
SECOND
AMENDED AND RESTATED RIGHTS PLAN
by
(i)
multiplying (x) the number of 1/1,000s of a share covered by a Right immediately
prior to this adjustment, by (y) the Purchase Price in effect immediately prior
to such adjustment of the Purchase Price, and (ii) dividing the product so
obtained by the Purchase Price in effect immediately after such adjustment
of
the Purchase Price.
(i) The
Company may elect on or after the date of any adjustment of the Purchase Price
to adjust the number of Rights, in lieu of any adjustment in the number of
1/1,000s of a share of Preferred Stock purchasable upon the exercise of a
Right. Each of the Rights outstanding after the adjustment in the
number of Rights shall be exercisable for the number of 1/1,000s of a share
of
Preferred Stock for which a Right was exercisable immediately prior to such
adjustment. Each Right held of record prior to such adjustment of the
number of Rights shall become that number of Rights (calculated to the nearest
1/10,000) obtained by dividing the Purchase Price in effect immediately prior
to
adjustment of the Purchase Price by the Purchase Price in effect immediately
after adjustment of the Purchase Price. The Company shall make a
public announcement of its election to adjust the number of Rights, indicating
the record date for the adjustment, and, if known at the time, the amount of
the
adjustment to be made. This record date may be the date on which the
Purchase Price is adjusted or any day thereafter, but, if the Rights
Certificates have been issued, shall be at least 10 days later than the date
of
the public announcement. If Rights Certificates have been issued,
upon each adjustment of the number of Rights pursuant to this
Section 11(i), the Company shall, as promptly as practicable, cause to be
distributed to holders of record of Rights Certificates on such record date
Rights Certificates evidencing, subject to Section 14 hereof, the
additional Rights to which such holders shall be entitled as a result of such
adjustment, or, at the option of the Company, shall cause to be distributed
to
such holders of record in substitution and replacement for the Rights
Certificates held by such holders prior to the date of adjustment, and upon
surrender thereof, if required by the Company, new Rights Certificates
evidencing all the Rights to which such holders shall be entitled after such
adjustment. Rights Certificates so to be distributed shall be issued,
executed and countersigned in the manner provided for herein (and may bear,
at
the option of the Company, the adjusted Purchase Price) and shall be registered
in the names of the holders of record of Rights Certificates on the record
date
specified in the public announcement.
(j) Irrespective
of any adjustment or change in the Purchase Price or the number of 1/1,000s
of a
share of Preferred Stock issuable upon the exercise of the Rights, the Rights
Certificates theretofore and thereafter issued may continue to express the
Purchase Price per 1/1,000 of a share and the number of 1/1,000s of a share
which were expressed in the initial Rights Certificates issued
hereunder.
(k) Before
taking any action that would cause an adjustment reducing the Purchase Price
below the then stated value, if any, of the number of 1/1,000s of a share of
Preferred Stock issuable upon exercise of the Rights, the Company shall take
any
corporate action which may, in the opinion of its counsel, be necessary in
order
that the Company may validly and legally issue fully paid and nonassessable such
number of 1/1,000s of a share of Preferred Stock at such adjusted Purchase
Price.
KEY TECHNOLOGY, INC. PAGE 20
SECOND
AMENDED AND RESTATED RIGHTS PLAN
(l) In
any case in which this Section 11 shall require that an adjustment in the
Purchase Price be made effective as of a record date for a specified event,
the
Company may elect to defer until the occurrence of such event the issuance
to
the holder of any Right exercised after such record date the number of 1/1,000s
of a share of Preferred Stock and other capital stock or securities of the
Company, if any, issuable upon such exercise over and above the number of
1/1,000s of a share of Preferred Stock and other capital stock or securities
of
the Company, if any, issuable upon such exercise on the basis of the Purchase
Price in effect prior to such adjustment; provided, however, that
the Company shall deliver to such holder a due xxxx or other appropriate
instrument evidencing such holder’s right to receive such additional shares
(fractional or otherwise) or securities upon the occurrence of the event
requiring such adjustment.
(m) Anything
in this Section 11 to the contrary notwithstanding, the Company shall be
entitled to make such further adjustments in the number of 1/1,000s of a share
of Preferred Stock which may be acquired upon exercise of the Rights, and such
adjustments in the Purchase Price, in addition to those adjustments expressly
required by this Section 11, as and to the extent that in its good faith
judgment the Board of Directors of the Company shall determine to be advisable
in order that any (i) consolidation or subdivision of the Preferred Stock,
(ii) issuance wholly for cash of any shares of Preferred Stock at less than
the current market price, (iii) issuance wholly for cash of shares of
Preferred Stock or securities which by their terms are convertible into or
exchangeable for shares of Preferred Stock, (iv) stock dividends or
(v) issuance of rights, options or warrants referred to in this Section 11,
hereafter made by the Company to holders of its Preferred Stock shall not be
taxable to such shareholders or shall reduce the taxes payable by such
holders.
(n) The
Company covenants and agrees that it shall not, at any time after the
Distribution Date, (i) consolidate with any other Person (other than a
Subsidiary of the Company in a transaction which complies with Section 11(o)
hereof), (ii) merge with or into any other Person (other than a Subsidiary
of the Company in a transaction which complies with Section 11(o) hereof),
or
(iii) sell or transfer (or permit any Subsidiary to sell or transfer), in
one transaction, or a series of related transactions, assets or earning power
aggregating more than 50% of the assets or earning power of the Company and
its
Subsidiaries (taken as a whole) to any other Person or Persons (other than
the
Company and/or any of its Subsidiaries in one or more transactions each of
which
complies with Section 11(o) hereof), if (x) at the time of or immediately after
such consolidation, merger or sale there are any rights, warrants or other
instruments or securities outstanding or agreements in effect which would
substantially diminish or otherwise eliminate the benefits intended to be
afforded by the Rights or (y) prior to, simultaneously with or immediately
after
such consolidation, merger or sale, the shareholders of the Person who
constitutes, or would constitute, the "Principal Party" for purposes of Section
13(a) hereof shall have received a distribution of Rights previously owned
by
such Person or any of its Affiliates and Associates; provided,
however, that this Section 11(n) shall not affect the ability of any
Subsidiary of the Company to consolidate with, merge with or into, or sell
or
transfer assets or earning power to, any other Subsidiary of the
Company.
KEY TECHNOLOGY, INC. PAGE 21
SECOND
AMENDED AND RESTATED RIGHTS PLAN
(o) The
Company covenants and agrees that, after the Distribution Date, it will not,
except as permitted by Section 23 or 27 hereof, take (or permit any
Subsidiary to take) any action if at the time such action is taken it is
reasonably foreseeable that such action will diminish substantially or otherwise
eliminate the benefits intended to be afforded by the Rights.
(p) Anything
in this Agreement to the contrary notwithstanding, in the event that the Company
shall at any time after the Rights Dividend Declaration Date and prior to the
Distribution Date (i) declare a dividend on the outstanding shares of
Common Stock payable in shares of Common Stock, (ii) subdivide the
outstanding shares of Stock, or (iii) combine the outstanding shares of
Common Stock into a smaller number of shares, the number of Rights associated
with each share of Common Stock then outstanding, or issued or delivered
thereafter but prior to the Distribution Date, shall be proportionately adjusted
so that the number of Rights thereafter associated with each share of Common
Stock following any such event shall equal the result obtained by multiplying
the number of Rights associated with each share of Common Stock immediately
prior to such event by a fraction the numerator which shall be the total number
of shares of Common Stock outstanding immediately prior to the occurrence of
the
event and the denominator of which shall be the total number of shares of Common
Stock outstanding immediately following the occurrence of such
event.
(q) The
failure of the Board of Directors of the Company to declare a Person to be
an
Adverse Person following such Person becoming the Beneficial Owner of shares
of
Common Stock representing 10% or more of the outstanding shares of Common Stock
shall not imply that such Person is not an Adverse Person or limit the Board
of
Directors’ right at any time in the future to declare such Person to be an
Adverse Person.
Section
12. Certificate
of Adjusted Purchase Price or Number of Shares.
Whenever
an adjustment is made as
provided in Sections 11 and 13 hereof, the Company
shall: (a) promptly prepare a certificate setting forth such
adjustment and a brief statement of the facts accounting for such adjustment;
(b) promptly file with the Rights Agent, and with each transfer agent for
the Preferred Stock and the Common Stock, a copy of such certificate; and
(c) mail a brief summary thereof to each holder of a Rights Certificate
(or, if prior to the Distribution Date, to each holder of a certificate
representing shares of Common Stock) in accordance with Section 26
hereof. The Rights Agent shall be fully protected in relying on any
such certificate and on any adjustment therein contained.
Section
13. Consolidation,
Merger or Sale or Transfer of Assets or Earning Power.
(a) In
the event that, following the Stock Acquisition Date, directly or indirectly,
(i) the Company shall consolidate with, or merge with and into, any other
Person (other than a Subsidiary of the Company in a transaction which complies
with Section 11(o) hereof), and the Company shall not be the continuing or
surviving corporation of such consolidation or merger, (ii) any Person
(other than a Subsidiary of the Company in a transaction
KEY TECHNOLOGY, INC. PAGE 22
SECOND
AMENDED AND RESTATED RIGHTS PLAN
which
complies with Section 11(o) hereof) shall consolidate with, or merge with or
into, the Company, and the Company shall be the continuing or surviving
corporation of such consolidation or merger and, in connection with such
consolidation or merger, all or part of the outstanding shares of Common Stock
shall be changed into or exchanged for stock or other securities of the Company
or any other Person or cash or any other property, or (iii) the Company
shall sell or otherwise transfer (or one or more of its Subsidiaries shall
sell
or otherwise transfer), in one transaction or a series of related transactions,
assets or earning power aggregating more than 50% of the assets or earning
power
of the Company and its Subsidiaries (taken as a whole) to any Person or Persons
(other than the Company or any Subsidiary of the Company in one or more
transactions each of which complies with Section 11(o) hereof) (any event
described in clauses (i), (ii) or (iii) of this Section 13(a) being a
"Section 13 Event"), then, and in each such case (except as may be
contemplated by Section 13(d) hereof), proper provision shall be made so
that: (A) each holder of a Right, except as provided in Section
7(e) hereof, shall thereafter have the right to receive, upon the exercise
thereof at the then current Purchase Price in accordance with the terms of
this
Agreement, such number of validly authorized and issued, fully paid,
nonassessable and freely tradable shares of Common Stock of the Principal Party
(as such term is hereinafter defined), not subject to any liens, encumbrances,
rights of first refusal or other adverse claims, as shall be equal to the result
obtained by (1) multiplying the then current Purchase Price by the number of
1/1,000s of a share of Preferred Stock for which a Right is exercisable
immediately prior to the first occurrence of a Section 13 Event (or, if a
Section 11(a)(ii) Event has occurred prior to the first occurrence of a Section
13 Event, multiplying the number of such 1/1,000s of a share for which a Right
was exercisable immediately prior to the first occurrence of such Section
11(a)(ii) Event by the Purchase Price in effect immediately prior to such first
occurrence), and dividing that product (which, following the first occurrence
of
a Section 13 Event, shall be referred to as the "Purchase Price" for each Right
and for all purposes of this Agreement) by (2) 50% of the Current Market Price
(determined pursuant to Section 11(d)(i) hereof) per share of the Common Stock
of such Principal Party on the date of consummation of such Section 13 Event;
(B) such Principal Party shall thereafter be liable for, and shall assume,
by virtue of such Section 13 Event, all the obligations and duties of the
Company pursuant to this Agreement; (C) the term "Company" shall thereafter
be deemed to refer to such Principal Party, it being specifically intended
that
the provisions of Section 11 hereof apply only to such Principal Party following
the first occurrence of a Section 13 Event; (D) such Principal Party shall
take such steps (including, but not limited to, the reservation of a sufficient
number of shares of its Common Stock) in connection with the consummation of
any
such transaction as may be necessary to assure that the provisions hereof shall
thereafter be applicable, as nearly as reasonably may be, in relation to its
shares of Common Stock thereafter deliverable upon the exercise of the Rights;
and (E) the provisions of Section 11(a)(ii) hereof shall be of no effect
following the first occurrence of any Section 13 Event.
(b) "Principal
Party" shall mean
|
(i)
|
in
the case of any transaction described in clause (i) or (ii) of the
first
sentence of Section 13(a) hereof, the Person that is the issuer of
any securities into which shares of Common Stock of the Company are
converted in such merger or
|
KEY TECHNOLOGY, INC. PAGE 23
SECOND
AMENDED AND RESTATED RIGHTS PLAN
|
|
consolidation,
and if no securities are so issued, the Person that is the other
party to
such consolidation or merger; and
|
|
(ii)
|
in
the case of any transaction described in clause (iii) of the first
sentence of Section 13(a) hereof, the Person that is the party receiving
the largest portion of the assets or earning power transferred pursuant
to
such transaction or transactions;
|
provided,
however, that in any such case, (1) if the Common Stock of such Person is
not at such time and has not been continuously over the preceding 12-month
period registered under Section 12 of the Exchange Act, and such Person is
a direct or indirect Subsidiary of another Person the Common Stock of which
is
and has been so registered, "Principal Party" shall refer to such other Person;
and (2) in case such Person is a Subsidiary, directly or indirectly, of more
than one Person, the Common Stocks of two or more of which are and have been
so
registered, "Principal Party" shall refer to whichever of such Persons is the
issuer of the Common Stock having the greatest aggregate market
value.
(c) The
Company shall not consummate any such consolidation, merger, sale or transfer
unless the Principal Party shall have a sufficient number of authorized shares
of its Common Stock which have not been issued or reserved for issuance to
permit the exercise in full of the Rights in accordance with this Section 13
and
unless prior thereto the Company and such Principal Party shall have executed
and delivered to the Rights Agent a supplemental agreement providing for the
terms set forth in paragraphs (a) and (b) of this Section 13 and further
providing that, as soon as practicable after the date of any consolidation,
merger, or sale or transfer mentioned in paragraph (a) of this
Section 13, the Principal Party will:
|
(i)
|
prepare
and file a registration statement under the Securities Act, with
respect
to the Rights and the securities purchasable upon exercise of the
Rights
on an appropriate form, and will use its best efforts to cause such
registration statement to (A) become effective as soon as practicable
after such filing and (B) remain effective (with a prospectus at
all times
meeting the requirements of the Securities Act) until the Expiration
Date,
and similarly comply with applicable state securities
laws;
|
|
(ii)
|
use
its best efforts to list (or continue the listing of) the Rights
and the
securities purchasable upon exercise of the Rights on a national
securities exchange or to meet the eligibility requirements for quotation
on Nasdaq or such other system then in use;
and
|
|
(iii)
|
will
deliver to holders of the Rights historical financial statements
for the
Principal Party and each of its Affiliates which comply in all respects
with the requirements for registration on Form 10 (or any successor
form)
under the Exchange Act.
|
KEY TECHNOLOGY, INC. PAGE 24
SECOND
AMENDED AND RESTATED RIGHTS PLAN
|
|
The
provisions of this Section 13 shall similarly apply to successive
consolidations, mergers, sales or other transfers. In the event
that a Section 13 Event shall occur at any time after the occurrence
of a
Section 11(a)(ii) Event, the Rights which have not theretofore been
exercised shall thereafter become exercisable in the manner described
in
Section 13(a).
|
(d) Notwithstanding
anything in this Agreement to the contrary, Section 13 shall not be
applicable to a transaction described in subparagraphs (i) and (ii) of
Section 13(a) if: (i) such transaction is consummated with a
Person or Persons who acquired shares of Common Stock pursuant to a Qualifying
Offer (or a wholly owned Subsidiary of any such Person or Persons);
(ii) the price per share of Common Stock offered in such transaction is not
less than the price per share of Common Stock paid to all holders of shares
of
Common Stock whose shares were purchased pursuant to such tender offer or
exchange offer; and (iii) the form of consideration being offered to the
remaining holders of shares of Common Stock pursuant to such transaction is
the
same as the form of consideration paid pursuant to such tender offer or exchange
offer. Upon consummation of any such transaction contemplated by this
Section 13(d), all Rights hereunder shall expire.
Section
14. Fractional
Rights and Fractional Shares.
(a) The
Company shall not be required to issue fractions of Rights, except prior to
the
Distribution Date as provided in Section 11(p) hereof, or to distribute Rights
Certificates which evidence fractional Rights (i.e., Rights to acquire less
than
1/1,000 of a share of Preferred Stock). In lieu of such fractional
Rights, there shall be paid to the registered holders of the Rights Certificates
with regard to which such fractional Rights would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a
whole
Right. For purposes of this Section 14(a), the current market value
of a whole Right shall be the closing price of the Rights for the Trading Day
immediately prior to the date on which such fractional Rights would have been
otherwise issuable. The closing price of the Rights for any day shall
be the last sale price, regular way, or, in case no such sale takes place on
such day, the average of the closing bid and asked prices, regular way, in
either case as reported in the principal consolidated transaction reporting
system with respect to securities listed or admitted to trading on the principal
national securities exchange on which the Rights are listed or admitted to
trading, or, if the Rights are not listed or admitted to trading on any national
securities exchange, the last quoted price or, if not so quoted, the average
of
the high bid and low asked prices, as reported by Nasdaq or such other system
then in use or, if on any such date the Rights are not quoted by any such
organization, the average of the closing bid and asked prices as furnished
by a
professional market maker making a market in the Rights selected by the Board
of
Directors of the Company. If on any such date no such market maker is
making a market in the Rights, the fair value of the Rights on such date as
determined in good faith by the Board of Directors of the Company shall be
used.
(b) The
Company shall not be required to issue fractions of shares of Preferred Stock
(other than fractions which are integral multiples of 1/1,000 of a share of
Preferred Stock) upon exercise of the Rights or to distribute certificates
which
evidence
KEY TECHNOLOGY, INC. PAGE 25
SECOND
AMENDED AND RESTATED RIGHTS PLAN
fractional
shares of Preferred Stock (other than fractions which are integral multiples
of
1/1,000 of a share of Preferred Stock). In lieu of fractional shares
of Preferred Stock that are not integral multiples of 1/1,000 of a share of
Preferred Stock, the Company may pay to the registered holders of Rights
Certificates at the time such Rights are exercised as herein provided an amount
in cash equal to the same fraction of the current market value of 1/1,000 of
a
share of Preferred Stock. For purposes of this Section 14(b),
the current market value of 1/1,000 of a share of Preferred Stock shall be
1/1,000 of the closing price of a share of Preferred Stock (as determined
pursuant to Section 11(d)(ii) hereof) for the Trading Day immediately prior
to
the date of such exercise.
(c) Following
the occurrence of a Triggering Event, the Company shall not be required to
issue
fractions of shares of Common Stock upon exercise of the Rights or to distribute
certificates which evidence fractional shares of Common Stock. In
lieu of fractional shares of Common Stock, the Company may pay to the registered
holders of Rights Certificates at the time such Rights are exercised as herein
provided an amount in cash equal to the same fraction of the current market
value of one share of Common Stock. For purposes of this
Section 14(c), the current market value of one share of Common Stock shall
be the closing price of one share of Common Stock (as determined pursuant to
Section 11(d)(i) hereof) for the Trading Day immediately prior to the date
of
such exercise.
(d) The
holder of a Right by the acceptance of the Rights expressly waives his or her
right to receive any fractional Rights or any fractional shares upon exercise
of
a Right, except as permitted by this Section 14.
Section
15. Rights
of Action.
All
rights of action in respect of this
Agreement are vested in the respective registered holders of the Rights
Certificates (and, prior to the Distribution Date, the registered holders of
the
Common Stock); and any registered holder of any Rights Certificate (or, prior
to
the Distribution Date, of the Common Stock), without the consent of the Rights
Agent or of the holder of any other Rights Certificate (or, prior to the
Distribution Date, of the Common Stock), may, in his or her own behalf and
for
his or her own benefit, enforce, and may institute and maintain any suit, action
or proceeding against the Company to enforce, or otherwise act in respect of,
his or her right to exercise the Rights evidenced by such Rights Certificate
in
the manner provided in such Rights Certificate and in this
Agreement. Without limiting the foregoing or any remedies available
to the holders of Rights, it is specifically acknowledged that the holders
of
Rights would not have an adequate remedy at law for any breach of this Agreement
and shall be entitled to specific performance of the obligations hereunder
and
injunctive relief against actual or threatened violations of the obligations
hereunder of any Person subject to this Agreement.
KEY TECHNOLOGY, INC. PAGE 26
SECOND
AMENDED AND RESTATED RIGHTS PLAN
Section
16. Agreement
of Rights Holders.
Every
holder of a Right by accepting
the same consents and agrees with the Company and the Rights Agent and with
every other holder of a Right that:
(a) prior
to the Distribution Date, the Rights will be evidenced by the certificates
for
shares of Common Stock registered in the name of the holders of the Common
Stock
(which certificates for Common Stock shall also constitute certificates for
Rights) and each Right will be transferable only in connection with the transfer
of Common Stock;
(b) after
the Distribution Date, the Rights Certificates are transferable only on the
registry books of the Rights Agent if surrendered at the principal office or
offices of the Rights Agent designated for such purposes, duly endorsed or
accompanied by a proper instrument of transfer and with the appropriate forms
and certificates fully executed;
(c) subject
to Sections 6(a) and 7(f) hereof, the Company and the Rights Agent may deem
and treat the Person in whose name a Rights Certificate (or, prior to the
Distribution Date, the associated Common Stock certificate) is registered as
the
absolute owner thereof and of the Rights evidenced thereby (notwithstanding
any
notations of ownership or writing on the Rights Certificates or the associated
Common Stock certificate made by anyone other than the Company or the Rights
Agent) for all purposes whatsoever, and neither the Company nor the Rights
Agent, subject to the last sentence of Section 7(e) hereof, shall be required
to
be affected by any notice to the contrary; and
(d) notwithstanding
anything in this Agreement to the contrary, neither the Company nor the Rights
Agent shall have any liability to any holder of a Right or other Person as
a
result of its inability to perform any of its obligations under this Agreement
by reason of any preliminary or permanent injunction or other order, decree
or
ruling issued by a court of competent jurisdiction or by a governmental,
regulatory or administrative agency or commission, or any statute, rule,
regulation or executive order promulgated or enacted by any governmental
authority, prohibiting or otherwise restraining performance of such obligation;
provided, however, the Company must use its best efforts to have
any such order, decree or ruling lifted or otherwise overturned as soon as
possible.
Section
17. Rights
Holder and Rights Certificate Holder Not Deemed a Shareholder.
No
holder, as such, of any Right or
Rights Certificate shall be entitled to vote, receive dividends or be deemed
for
any purpose the holder of the number of 1/1,000s of a share of Preferred Stock
or any other securities of the Company which may at any time be issuable on
the
exercise of the Rights represented thereby, nor shall anything contained herein
or in any Rights Certificate be construed to confer upon the holder of any
Right
or Rights Certificate, as such, any of the rights of a shareholder of the
Company or any right to vote for the election of directors or upon any matter
submitted to shareholders at any meeting thereof, or to give or withhold consent
to any corporate action, or to receive notice of meetings or other
actions
KEY TECHNOLOGY, INC. PAGE 27
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AMENDED AND RESTATED RIGHTS PLAN
affecting
shareholders (except as provided in Section 25 hereof), or to receive dividends
or subscription rights, or otherwise, until the Right or Rights evidenced by
such Rights Certificate shall have been exercised in accordance with the
provisions hereof.
Section
18. Concerning
the Rights Agent.
(a) The
Company agrees to pay to the Rights Agent reasonable compensation for all
services rendered by it hereunder and, from time to time, on demand of the
Rights Agent, its reasonable expenses and attorney fees and disbursements and
other disbursements incurred in the administration and execution of this
Agreement and the exercise and performance of its duties
hereunder. The Company also agrees to indemnify the Rights Agent for,
and to hold it harmless against, any loss, liability or expense, incurred
without negligence, bad faith or willful misconduct on the part of the Rights
Agent, for anything done or omitted by the Rights Agent in connection with
the
acceptance and administration of this Agreement, including the costs and
expenses of defending against any claim of liability arising
therefrom. Anything to the contrary notwithstanding, in no event
shall the Rights Agent be liable for special, indirect, consequential or
incidental loss or damage of any kind whatsoever (including but not limited
to
lost profits), even if the Rights Agent has been advised of the likelihood
of
such loss or damage.
(b) The
Rights Agent shall be protected and shall incur no liability for or in respect
of any action taken, suffered or omitted by it in connection with its
administration of this Agreement in reliance upon any Rights Certificate or
certificate representing Preferred Stock or Common Stock or other securities
of
the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, direction, consent, certificate,
statement, or other paper or document believed by the Rights Agent to be genuine
and to be signed, executed and, where necessary, verified or acknowledged,
by
the proper Person or Persons, or otherwise upon the advice of its counsel as
set
forth in Section 20 hereof.
Section
19. Merger
or Consolidation or Change of Name of Rights Agent.
(a) Any
corporation into which the Rights Agent or any successor Rights Agent may be
merged or with which it may be consolidated, or any corporation resulting from
any merger or consolidation to which the Rights Agent or any successor Rights
Agent shall be a party, or any corporation succeeding to the corporate trust
or
shareholder services business of the Rights Agent or any successor Rights Agent,
shall be the successor to the Rights Agent under this Agreement without the
execution or filing of any paper or any further act on the part of either of
the
parties hereto; provided, however, that such corporation would be
eligible for appointment as a successor Rights Agent under the provisions of
Section 21 hereof. If at the time such successor Rights Agent
shall succeed to the agency created by this Agreement, any of the Rights
Certificates shall have been countersigned but not delivered, any such successor
Rights Agent may adopt the countersignature of a predecessor Rights Agent and
deliver such Rights Certificates so countersigned; and if at that time any
of
the Rights Certificates shall not have been countersigned, any successor Rights
Agent may countersign such Rights Certificates
KEY TECHNOLOGY, INC. PAGE 28
SECOND
AMENDED AND RESTATED RIGHTS PLAN
either
in
the name of the predecessor or in the name of the successor Rights Agent; and
in
all such cases such Rights Certificates shall have the full force provided
in
the Rights Certificates and in this Agreement.
(b) If
at any time the name of the Rights Agent shall be changed and at such time
any
of the Rights Certificates shall have been countersigned but not delivered,
the
Rights Agent may adopt the countersignature under its prior name and deliver
Rights Certificates so countersigned; and if at that time any of the Rights
Certificates shall not have been countersigned, the Rights Agent may countersign
such Rights Certificates either in its prior name or in its changed name; and
in
all such cases such Rights Certificates shall have the full force provided
in
the Rights Certificates and in this Agreement.
Section
20. Duties
of Rights Agent.
The
Rights Agent undertakes the duties
and obligations imposed by this Agreement upon the following terms and
conditions, by all of which the Company and the holders of Rights Certificates,
by their acceptance thereof, shall be bound:
(a) The
Rights Agent may consult with legal counsel (who may be legal counsel for the
Company), and the opinion of such counsel shall be full and complete
authorization and protection to the Rights Agent as to any action taken or
omitted by it in good faith and in accordance with such opinion.
(b) Whenever
in the performance of its duties under this Agreement the Rights Agent shall
deem it necessary or desirable that any fact or matter (including, without
limitation, the identity of any Acquiring Person or Adverse Person and the
determination of "current market price") be proved or established by the Company
prior to taking or suffering any action hereunder, such fact or matter (unless
other evidence in respect thereof be herein specifically prescribed) may be
deemed to be conclusively proved and established by a certificate signed by
the
Chairman of the Board, the President, any Vice President, the Chief Financial
Officer or the Secretary of the Company and delivered to the Rights Agent;
and
such certificate shall be full authorization to the Rights Agent for any action
taken or suffered in good faith by it under the provisions of this Agreement
in
reliance upon such certificate.
(c) The
Rights Agent shall be liable hereunder only for its own negligence, bad faith
or
willful misconduct.
(d) The
Rights Agent shall not be liable for or by reason of any of the statements
of
fact or recitals contained in this Agreement or in the Rights Certificates
or be
required to verify the same (except as to its countersignature on such Rights
Certificates), but all such statements and recitals are and shall be deemed
to
have been made by the Company only.
(e) The
Rights Agent shall not be under any responsibility in respect of the validity
of
this Agreement or the execution and delivery hereof (except the due
execution
KEY TECHNOLOGY, INC. PAGE 29
SECOND
AMENDED AND RESTATED RIGHTS PLAN
hereof
by
the Rights Agent) or in respect of the validity or execution of any Rights
Certificate (except its countersignature thereof); nor shall it be responsible
for any breach by the Company of any covenant or condition contained in this
Agreement or in any Rights Certificate; nor shall it be responsible for any
change in the exercisability of the Rights (including the Rights becoming void
pursuant to Section 7(e) hereof); nor shall it be responsible for any adjustment
required under the provisions of Section 11, 13 or 24 hereof or responsible
for the manner, method or amount of any such adjustment or the ascertaining
of
the existence of facts that would require any such adjustment (except with
respect to the exercise of Rights evidenced by Rights Certificates after actual
notice of any such adjustment or change in exercisability); nor shall it by
any
act hereunder be deemed to make any representation or warranty as to the
authorization or reservation of any shares of Common Stock or Preferred Stock
to
be issued pursuant to this Agreement or any Rights Certificate or as to whether
any shares of Common Stock or Preferred Stock will, when so issued, be validly
authorized and issued, fully paid and nonassessable.
(f) The
Company agrees that it will perform, execute, acknowledge and deliver or cause
to be performed, executed, acknowledged and delivered all such further and
other
acts, instruments and assurances as may reasonably be required by the Rights
Agent for the carrying out or performing by the Rights Agent of the provisions
of this Agreement.
(g) The
Rights Agent is hereby authorized and directed to accept instructions with
respect to the performance of its duties hereunder from the Chairman of the
Board, the President, any Vice President, the Chief Financial Officer or the
Secretary of the Company, and to apply to such officers for advice or
instructions in connection with its duties, and it shall not be liable for
any
action taken or suffered to be taken by it in good faith in accordance with
instructions of any such officer.
(h) The
Rights Agent and any shareholder, director, officer, member or employee of
the
Rights Agent may buy, sell or deal in any of the Rights or other securities
of
the Company or become pecuniarily interested in any transaction in which the
Company may be interested, or contract with or lend money to the Company or
otherwise act as fully and freely as though it were not Rights Agent under
this
Agreement. Nothing herein shall preclude the Rights Agent from acting
in any other capacity for the Company or for any other legal
entity.
(i) The
Rights Agent may execute and exercise any of the rights or powers hereby vested
in it or perform any duty hereunder either itself or by or through its attorneys
or agents, and the Rights Agent shall not be answerab1e or accountable for
any
act, default, neglect or misconduct of any such attorneys or agents or for
any
loss to the Company resulting from any such act, default, neglect or misconduct;
provided, however, reasonable care was exercised in the selection
and continued employment thereof.
(j) No
provision of this Agreement shall require the Rights Agent to expend or risk
its
own funds or otherwise incur any financial liability in the performance of
any
of its duties hereunder or in the exercise of its rights if there shall be
reasonable grounds for
KEY TECHNOLOGY, INC. PAGE 30
SECOND
AMENDED AND RESTATED RIGHTS PLAN
believing
that repayment of such funds or adequate indemnification against such risk
or
liability is not reasonably assured to it.
(k) If,
with respect to any Rights Certificate surrendered to the Rights Agent for
exercise or transfer, the certificate attached to the form of assignment or
form
of election to purchase, as the case may be, has either not been completed
or
indicates an affirmative response to clause l and/or 2 thereof, the Rights
Agent
shall not take any further action with respect to such requested exercise of
transfer without first consulting with the Company.
Section
21. Change
of Rights Agent.
The
Rights Agent or any successor
Rights Agent may resign and be discharged from its duties under this Agreement
upon 30 days' notice in writing mailed to the Company and to each transfer
agent of the Common Stock and Preferred Stock, by registered or certified mail,
and to the holders of the Rights Certificates by first-class
mail. The Company may remove the Rights Agent or any successor Rights
Agent upon 30 days' notice in writing, mailed to the Rights Agent or
successor Rights Agent, as the case may be, and to each transfer agent of the
Common Stock and Preferred Stock, by registered or certified mail, and to the
holders of the Rights Certificates by first-class mail. If the Rights
Agent shall resign or be removed or shall otherwise become incapable of acting,
the Company shall appoint a successor to the Rights Agent. If the
Company shall fail to make such appointment within a period of 30 days
after giving notice of such removal or after it has been notified in writing
of
such resignation or incapacity by the resigning or incapacitated Rights Agent
or
by the holder of a Rights Certificate (who shall, with such notice, submit
his
or her Rights Certificate for inspection by the Company), then any registered
holder of any Rights Certificate may apply to any court of competent
jurisdiction for the appointment of a new Rights Agent. Any successor
Rights Agent, whether appointed by the Company or by such a court, shall be
either (a) a corporation organized and doing business under the laws of the
United States or any state of the United States, so long as such corporation
is
authorized to do business as a banking institution, is authorized to exercise
corporate trust powers, is in good standing, is subject to supervision or
examination by federal or state authority, and has at the time of its
appointment as Rights Agent a combined capital and surplus of at least $100
million, or (b) an affiliate of such a corporation. After
appointment, the successor Rights Agent shall be vested with the same powers,
rights, duties and responsibilities as if it had been originally named as Rights
Agent without further act or deed; but the predecessor Rights Agent shall
deliver and transfer to the successor Rights Agent any property at the time
held
by it hereunder, and execute and deliver any further assurance, conveyance,
act
or deed necessary for the purpose. Not later than the effective date
of any such appointment, the Company shall file notice thereof in writing with
the predecessor Rights Agent and each transfer agent of the Common Stock and
the
Preferred Stock, and mail a notice thereof in writing to the registered holders
of the Rights Certificates. Failure to give any notice provided for
in this Section 21, however, or any defect therein, shall not affect the
legality or validity of the resignation or removal of the Rights Agent or the
appointment of the successor Rights Agent, as the case may be.
KEY TECHNOLOGY, INC. PAGE 31
SECOND
AMENDED AND RESTATED RIGHTS PLAN
Section
22. Issuance
of New Rights Certificates.
Notwithstanding
any of the provisions
of this Agreement or of the Rights to the contrary, the Company may, at its
option, issue new Rights Certificates evidencing Rights in such form as may
be
approved by its Board of Directors to reflect any adjustment or change in the
Purchase Price and the number or kind or class of shares or other securities
or
property purchasable under the Rights Certificates made in accordance with
the
provisions of this Agreement. In addition, in connection with the
issuance or sale of shares of Common Stock following the Distribution Date
and
prior to the redemption or expiration of the Rights, the Company (a) shall,
with
respect to shares of Common Stock so issued or sold pursuant to the exercise
of
stock options or under any employee plan or arrangement, granted or awarded
as
of the Distribution Date, or upon the exercise, conversion or exchange of
securities hereinafter issued by the Company, and (b) may, in any other case,
if
deemed necessary or appropriate by the Board of Directors, issue Rights
Certificates representing the appropriate number of Rights in connection with
such issuance or sale; provided, however, that (i) no such Rights
Certificate shall be issued if, and to the extent that, the Company shall be
advised by counsel that such issuance would create a significant risk of
material adverse tax consequences to the Company or the Person to whom such
Rights Certificate would be issued, and (ii) no such Rights Certificate
shall be issued if, and to the extent that, appropriate adjustment shall
otherwise have been made in lieu of the issuance thereof.
Section
23. Redemption
and Termination.
(a) The
Board of Directors of the Company may, at its option, at any time prior to
the
earlier of (i) the Close of Business on the twentieth Business Day
following the Stock Acquisition Date, or (ii) the Close of Business on the
Final Expiration Date, redeem all, but not less than all, the then outstanding
Rights at a redemption price of $.01 per Right, as such amount may be
appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring after the date hereof (such redemption price being
hereinafter referred to as the "Redemption Price"). The Board of
Directors may not redeem any Rights following a determination pursuant to
Section 11(a)(ii)(B) that any Person is an Adverse
Person. Notwithstanding anything contained in this Agreement to the
contrary, the Rights shall not be exercisable after the first occurrence of
a
Section 11(a)(ii) Event until such time as the Company's right of
redemption hereunder has expired. The Company may, at its option, pay
the Redemption Price in cash, shares of Common Stock (based on the Current
Market Price, as defined in Section 11(d)(i) hereof, of the Common Stock at
the
time of redemption) or any other form of consideration deemed appropriate by
the
Board of Directors.
(b) Immediately
upon the action of the Board of Directors of the Company ordering the redemption
of the Rights, evidence of which shall have been filed with the Rights Agent
and
without any further action and without any notice, the right to exercise the
Rights will terminate and the only right thereafter of the holders of Rights
shall be to receive the Redemption Price for each Right so
held. Promptly after the action of the Board of
Directors
KEY TECHNOLOGY, INC. PAGE 32
SECOND
AMENDED AND RESTATED RIGHTS PLAN
ordering
the redemption of the Rights, the Company shall give notice of such redemption
to the Rights Agent and the holders of the then outstanding Rights by mailing
such notice to all such holders at each holder’s last address as it appears on
the registry books of the Rights Agent or, prior to the Distribution Date,
on
the registry books of the transfer agent for the Common Stock. Any
notice which is mailed in the manner herein provided shall be deemed given,
whether or not the holder receives the notice. Each such notice of
redemption will state the method by which the payment of the Redemption Price
will be made.
Section
24. Exchange.
(a) The
Board of Directors of the Company may, at its option, at any time after any
Person becomes an Acquiring Person or is determined to be an Adverse Person
pursuant to Section 11(a)(ii)(B), exchange all or part of the then outstanding
and exercisable Rights (which shall not include Rights that have become void
pursuant to the provisions of Section 7(e) hereof) for shares of Common
Stock at an exchange ratio of one share of Common Stock per Right, appropriately
adjusted to reflect any stock split, stock dividend or similar transaction
occurring after the date hereof (such exchange ratio being hereinafter referred
to as the "Exchange Ratio"). Notwithstanding the foregoing, the Board
of Directors of the Company shall not be empowered to effect such exchange
at
any time after any Person (other than the Company, any Subsidiary of the
Company, any employee benefit plan of the Company or any such Subsidiary, or
any
entity holding Common Stock for or pursuant to the terms of any such plan),
together with all Affiliates and Associates of such Person, becomes the
Beneficial Owner of 50% or more of the Common Stock then
outstanding.
(b) Immediately
upon the action of the Board of Directors of the Company ordering the exchange
of any Rights pursuant to Section 24(a) hereof and without any further
action and without any notice, the right to exercise such Rights shall terminate
and the only right thereafter of a holder of such Rights shall be to receive
that number of shares of Common Stock equal to the number of such Rights held
by
such holder multiplied by the Exchange Ratio. The Company shall
promptly give public notice of any such exchange; provided,
however, that the failure to give, or any defect in, such notice shall
not affect the validity of such exchange. The Company promptly shall
mail a notice of any such exchange to all of the holders of such Rights at
their
last addresses as they appear on the registry books of the Rights
Agent. Any notice which is mailed in the manner herein provided shall
be deemed given, whether or not the holder receives the notice. Each
such notice of exchange will state the method by which the exchange of the
Common Stock for Rights will be effected and, in the event of any partial
exchange, the number of Rights which will be exchanged. Any partial
exchange shall be effected pro rata based on the number of Rights (other than
Rights which have become void pursuant to the provisions of Section 7(e) hereof)
held by each holder of Rights.
(c) In
any exchange pursuant to this Section 24, the Company, at its option, may
substitute shares of Preferred Stock (or equivalent preferred stock, as such
term is defined in Section 11(b) hereof) for shares of Common Stock
exchangeable for Rights, at the initial rate of 1/1,000 of a share of Preferred
Stock (or equivalent preferred stock) for each share
KEY TECHNOLOGY, INC. PAGE 33
SECOND
AMENDED AND RESTATED RIGHTS PLAN
of
Common
Stock, as appropriately adjusted to reflect adjustments in the voting rights
of
the Preferred Stock pursuant to Section 3(A) of the rights, powers and
preferences attached hereto as Exhibit A, so that the fraction of a share
of Preferred Stock delivered in lieu of each share of Common Stock shall have
the same voting rights as one share of Common Stock.
(d) In
the event that there shall not be sufficient shares of Common Stock issued
but
not outstanding or authorized but unissued to permit any exchange of Rights
as
contemplated in accordance with this Section 24, the Company shall take all
such
action as may be necessary to authorize additional shares of Common Stock for
issuance upon exchange of the Rights.
(e) The
Company shall not be required to issue fractions of shares of Common Stock
or to
distribute certificates which evidence fractional shares of Common
Stock. In lieu of such fractional shares of Common Stock, there shall
be paid to the registered holders of the Right Certificates, with regard to
which such fractional share of Common Stock would otherwise be issuable, an
amount in cash equal to the same fraction of the current market value of a
whole
share of Common Stock. For the purposes of this paragraph (e),
the current market value of a whole share of Common Stock shall be the closing
price of a share of Common Stock (as determined pursuant to the second sentence
of Section 11(d)(i) hereof) for the Trading Day immediately prior to the date
of
exchange pursuant to this Section 24.
Section
25. Notice
of Certain Events.
(a) In
case the Company shall propose, at any time after the Distribution Date,
(i) to pay any dividend payable in stock of any class to the holders of
Preferred Stock or to make any other distribution to the holders of Preferred
Stock (other than a regular quarterly cash dividend out of earnings or retained
earnings of the Company), or (ii) to offer to the holders of Preferred
Stock rights or warrants to subscribe for or to purchase any additional shares
of Preferred Stock or shares of stock of any class or any other securities,
rights or options, or (iii) to effect any reclassification of its Preferred
Stock (other than a reclassification involving only the subdivision of
outstanding shares of Preferred Stock), or (iv) to effect any consolidation
or
merger into or with any other Person (other than a Subsidiary of the Company
in
a transaction which complies with Section 11(o) hereof), or to effect any sale
or other transfer (or to permit one or more of its Subsidiaries to effect any
sale or other transfer), in one transaction or a series of related transactions,
of more than 50% of the assets or earning power of the Company and its
Subsidiaries (taken as a whole) to, any other Person or Persons (other than
the
Company and/or any of its Subsidiaries in one or more transactions each of
which
complies with Section 11(o) hereof), or (v) to effect the liquidation,
dissolution or winding up of the Company, then, in each such case, the Company
shall give to each holder of a Rights Certificate, to the extent feasible and
in
accordance with Section 26 hereof, a notice of such proposed action, which
shall specify the record date for the purposes of such stock dividend,
distribution of rights or warrants, or the date on which such reclassification,
consolidation, merger, sale, transfer, liquidation, dissolution, or winding
up
is to take place and the date of participation therein by the holders of the
shares of Preferred Stock, if any such date is to be fixed, and such notice
shall be so given in the case of
KEY TECHNOLOGY, INC. PAGE 34
SECOND
AMENDED AND RESTATED RIGHTS PLAN
any
action covered by clause (i) or (ii) above at least 20 days prior to
the record date for determining holders of the shares of Preferred Stock for
purposes of such action, and in the case of any such other action, at least
20
days prior to the date of the taking of such proposed action or the date of
participation therein by the holders of the shares of Preferred Stock, whichever
shall be the earlier.
(b) If
any Section 11(a)(ii) Event shall occur, then, in any such case,
(i) the Company shall as soon as practicable thereafter give to each holder
of a Rights Certificate, to the extent feasible and in accordance with
Section 26 hereof, a notice of the occurrence of such event, which shall
specify the event and the consequences of the event to holders of Rights under
Section 11(a)(ii) hereof, and (ii) all references in the preceding
paragraph to Preferred Stock shall be deemed thereafter to refer to Common
Stock
and/or, if appropriate, other securities.
Section
26. Notices.
Notices
or demands authorized by this
Agreement to be given or made by the Rights Agent or by the holder of any Rights
Certificate to or on the Company shall be sufficiently given or made if sent
by
first-class mail, postage prepaid, addressed (until another address is filed
in
writing with the Rights Agent) as follows:
Key
Technology, Inc.
000
Xxxxx
Xxxxxx
Xxxxx
Xxxxx, XX 00000
Attention: Chief
Financial Officer
Subject
to the provisions of Section 21, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Rights
Certificate to or on the Rights Agent shall be sufficiently given or made if
sent by first-class mail, postage prepaid, addressed (until another address
is
filed in writing with the Company) as follows:
American
Stock Transfer & Trust Company
00
Xxxxxx
Xxxx
Xxxxx
Xxxxx
Xxx
Xxxx,
XX 00000
Attention: _________________________
Notices
or demands authorized by this Agreement to be given or made by the Company
or
the Rights Agent to the holder of any Rights Certificate (or, if prior to the
Distribution Date, to the holder of certificates representing shares of Common
Stock) shall be sufficiently given or made if sent by first-class mail, postage
prepaid, addressed to such holder at his or her address as shown on the registry
books of the Company.
KEY TECHNOLOGY, INC. PAGE 35
SECOND
AMENDED AND RESTATED RIGHTS PLAN
Section
27. Supplements
and Amendments.
Prior
to the Distribution Date and
subject to the penultimate sentence of this Section 27, the Company may by
action of the Board of Directors, and the Rights Agent shall if the Company
so
directs, supplement or amend any provision of this Agreement in any manner
without the approval of any holders of Common Stock. From and after
the Distribution Date and subject to the penultimate sentence of this
Section 27, the Company may by action of the Board of Directors, and the
Rights Agent shall if directed by the Company, from time to time, supplement
or
amend this Agreement without the approval of any holders of Rights Certificates
in order (i) to cure any ambiguity, (ii) to correct or supplement any
provision contained herein which may be defective or inconsistent with any
other
provisions herein, (iii) to shorten or lengthen any time period herein or
(iv) to change or supplement any other provisions herein in any manner
which the Board of Directors may deem necessary or desirable so long as the
interests of the holders of the Rights or Rights Certificates (other than an
Acquiring Person or Adverse Person or any Affiliate or Associate of an Acquiring
Person or Adverse Person) shall not be materially and adversely affected
thereby; provided, however, this Agreement may not be supplemented
or amended to lengthen, pursuant to clause (iii) of this sentence, (A) a
time period relating to when the Rights may be redeemed at such time and the
Rights are not then redeemable, or (B) any other time period unless such
lengthening is for the purpose of protecting, enhancing or clarifying the rights
of, and/or the benefits to, the holders of Rights (other than an Acquiring
Person or Adverse Person or any Affiliate or Associate of an Acquiring Person
or
Adverse Person). Upon the delivery of a certificate from an
appropriate officer of the Company, which states that the proposed supplement
or
amendment is in compliance with the terms of this Section 27, the Rights
Agent shall execute such supplement or amendment. Prior to the
Distribution Date, the interests of the holders of Rights shall be deemed
coincident with the interests of the holders of Common Stock of the
Company.
Section
28. Successors.
All
the covenants and provisions of
this Agreement by or for the benefit of the Company or the Rights Agent shall
bind and inure to the benefit of their respective successors and assigns
hereunder.
Section
29. Determinations
and Actions by the Board of Directors, Etc.
For
all purposes of this Agreement,
any calculation of the number of shares of Common Stock outstanding at any
particular time, including for purposes of determining the particular percentage
of such outstanding shares of Common Stock of which any Person is the Beneficial
Owner, shall be made in accordance with the last sentence of Rule 13d-3(d)(l)(i)
of the General Rules and Regulations under the Exchange Act, as in effect on
the
date of this Agreement. The Board of Directors of the Company have
the exclusive power and authority to administer this Agreement and to exercise
all rights and powers specifically granted to the Board of Directors or to
the
Company, or as may be necessary or advisable in the administration of this
Agreement, including, without limitation, the right and power to
(a) interpret provisions of this Agreement, and (b) make all
determinations deemed necessary or advisable for the
KEY TECHNOLOGY, INC. PAGE 36
SECOND
AMENDED AND RESTATED RIGHTS PLAN
administration
of this Agreement (including a determination to redeem or not redeem the Rights
or to amend this Agreement). All such actions, calculations,
interpretations and determinations (including, for purposes of clause (ii)
below, all omissions with respect to the foregoing) which are done or made
by
the Board of Directors in good faith, shall (i) be final, conclusive and binding
on the Company, the Rights Agent, the holders of the Rights and all other
parties, and (ii) not subject the Board of Directors to any liability to the
holders of the Rights.
Section
30. Benefits
of this Agreement.
Nothing
in this Agreement shall be
construed to give to any Person other than the Company, the Rights Agent and
the
registered holders of the Rights Certificates (and, prior to the Distribution
Date, registered holders of the Common Stock) 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 Rights Agent and the registered
holders of the Rights Certificates (and, prior to the Distribution Date,
registered holders of the Common Stock).
Section
31. Severability.
If
any term, provision, covenant or
restriction of this Agreement is held by a court of competent jurisdiction
or
other authority to be invalid, void or unenforceable, the remainder of the
terms, provisions, covenants and restrictions of this Agreement shall remain
in
full force and effect and shall in no way be affected, impaired or invalidated;
provided, however, that notwithstanding anything in this Agreement
to the contrary, if any term, provision, covenant or restriction is held by
such
court or authority to be invalid, void or unenforceable and the Board of
Directors of the Company determines in its good faith judgment that severing
the
invalid language from this Agreement would adversely affect the purpose or
effect of this Agreement, the right of redemption set forth in Section 23 hereof
shall be reinstated and shall not expire until the Close of Business on the
tenth Business Day following the date of such determination by the Board of
Directors. Without limiting the foregoing, if any provision requiring
a majority of the members of the Board of Directors who are not officers of
the
Company and who are not representatives, nominees, Affiliates or Associates
of
an Acquiring Person to act is held by any court of competent jurisdiction or
other authority to be invalid, void or unenforceable, such determination shall
be made by the Board of Directors of the Company in accordance with applicable
law and the Company's Restated Articles of Incorporation and Restated Bylaws,
as
in effect at that time.
Section
32. Governing
Law.
This
Agreement, each Right and each
Rights Certificate issued hereunder shall be deemed to be a contract made under
the laws of the State of Oregon and for all purposes shall be governed by and
construed in accordance with the laws of such state applicable to contracts
made
and to be performed entirely within such state, including, without limitation,
the provisions of ORS 60.157.
KEY TECHNOLOGY, INC. PAGE 37
SECOND
AMENDED AND RESTATED RIGHTS PLAN
Section
33. Counterparts.
This
Agreement may be executed in any
number of counterparts and each of such counterparts shall for all purposes
be
deemed to be an original, and all such counterparts shall together constitute
but one and the same instrument.
Section
34. Descriptive
Headings
Descriptive
headings of the several
sections of this Agreement are inserted for convenience only and shall not
control or affect the meaning or construction of any of the provisions
hereof.
IN
WITNESS WHEREOF, the parties hereto
have caused this Rights Agreement to be duly executed and attested as of the
date first written above.
KEY
TECHNOLOGY, INC.
Attest:
By__________________________
By ________________________________
Secretary
Title _______________________________
AMERICAN
STOCK TRANSFER & TRUST COMPANY
Attest:
By__________________________ By
________________________________
Secretary Title
_______________________________
KEY TECHNOLOGY, INC. PAGE 38
SECOND
AMENDED AND RESTATED RIGHTS PLAN
EXHIBIT
A
SERIES
A
JUNIOR PARTICIPATING PREFERRED STOCK
BY
DIRECTORS
PURSUANT
TO ARTICLES OF AMENDMENT TO
THE
RESTATED ARTICLES OF INCORPORATION
OF
KEY
TECHNOLOGY, INC.
Article
II of the Corporation's
Restated Articles of Incorporation is amended to add a section providing for
a
series of Series A Junior Participating Preferred Stock, and that the
designation and amount thereof and the voting powers, preferences, limitations
and relative and special rights of the shares of such series, and the
qualifications, limitations or restrictions thereof are as follows:
ARTICLE
II
SERIES
A
JUNIOR PARTICIPATING PREFERRED STOCK
Section
1. Designation,
Amount and Par Value.
The
shares of such series shall be
designated as "Series A Junior Participating Preferred Stock" and the number
of
shares constituting such series shall be 15,000. Such series is
hereinafter referred to as the "Series A Preferred Stock." The par
value of the Series A Preferred Stock shall be $.01 per share.
Section
2. Dividends
and Distributions.
(A) The
holders of shares of Series A Preferred Stock shall be entitled to receive,
when, as and if declared by the Board of Directors out of funds legally
available for the purpose, quarterly dividends payable in cash on the last
day
of March, June, September and December in each year (each such date being
referred to herein as a "Quarterly Dividend Payment Date"), commencing on the
first Quarterly Dividend Payment Date after the first issuance of a share or
fraction of a share of Series A Preferred Stock, in an amount per share (rounded
to the nearest cent) equal to the greater of (a) $.01 or (b) subject to the
provisions for adjustment hereinafter set forth, 1,000 times the aggregate
per
share amount of all cash dividends, and 1,000 times the aggregate per share
amount (payable in kind) of all non-cash dividends or other distributions other
than a dividend payable in shares of Common Stock or a subdivision of the
outstanding shares of Common Stock (by reclassification or otherwise), declared
on the Common Stock, par value $.01 per share, of the Corporation (the "Common
Stock") since the immediately preceding Quarterly Dividend Payment Date or,
with
respect to the first Quarterly Dividend Payment Date, since the first issuance
of any share or fraction of a share
SECOND
AMENDED AND RESTATED RIGHTS PLAN
EXHIBIT A
of
Series
A Preferred Stock. In the event the Corporation shall at any time
after May 4, 1998 (the "Rights Declaration Date") (i) declare any
dividend on Common Stock payable in shares of Common Stock, (ii) subdivide
the outstanding Common Stock, or (iii) combine the outstanding Common Stock
into a smaller number of shares, then in each such case the amount to which
holders of shares of Series A Preferred Stock were entitled immediately prior
to
such event under clause (b) of the preceding sentence shall be adjusted by
multiplying such amount by a fraction the numerator of which is the number
of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(B) The
Corporation shall declare a dividend or distribution on the Series A Preferred
stock as provided in Paragraph (A) above immediately after it declares a
dividend or distribution on the Common Stock (other than a dividend payable
in
shares of Common Stock).
(C) Dividends
shall begin to accrue and be cumulative on outstanding shares of Series A
Preferred Stock from the Quarterly Dividend Payment Date next preceding the
date
of issue of such shares of Series A Preferred Stock, unless the date of issue
of
such shares is prior to the record date for the first Quarterly Dividend Payment
Date, in which case dividends on such shares shall begin to accrue from the
date
of issue of such shares, or unless the date of issue is a Quarterly Dividend
Payment Date or is a date after the record date for the determination of holders
of shares of Series A Preferred Stock entitled to receive a quarterly dividend
and before such Quarterly Dividend Payment Date, in either of which events
such
dividends shall begin to accrue and be cumulative from such Quarterly Dividend
Payment Date. Accrued but unpaid dividends shall not bear
interest. Dividends paid on the shares of Series A Preferred Stock in
an amount less than the total amount of such dividends at the time accrued
and
payable on such shares shall be allocated pro rata on a share-by-share basis
among all such shares at the time outstanding. The Board of Directors
may fix a record date for the determination of holders of shares of Series
A
Preferred Stock entitled to receive payment of a dividend or distribution
declared thereon, which record date shall be no more than 30 days prior to
the
date fixed for the payment thereof.
Section
3. Voting
Rights.
The
holders of shares of Series A
Preferred stock shall have the following voting rights:
(A) Subject
to the provision for adjustment hereinafter set forth, each share of Series
A
Preferred Stock shall entitle the holder thereof to 1,000 votes (and each
1/1,000 of a share of Series A Preferred Stock shall entitle the holder thereof
to one vote) on all matters submitted to a vote of the shareholders of the
Corporation. In the event the Corporation shall at any time after the
Rights Declaration Date (i) declare any dividend on Common Stock payable in
shares of Common Stock, (ii) subdivide the outstanding Common Stock, or (iii)
combine the outstanding Common Stock into a smaller number of shares, then
in
each such case the number of votes per share to which holders of shares of
Series A Preferred Stock were entitled
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT A
immediately
prior to such event shall be adjusted by multiplying such number by a fraction
the numerator of which is the number of shares of Common Stock outstanding
immediately after such event and the denominator of which is the number of
shares of Common Stock that were outstanding immediately prior to such
event.
(B) Except
as otherwise provided herein or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock shall vote together
as
one class on all matters submitted to a vote of shareholders of the
Corporation.
(C) (i) If
at any time dividends on any Series A Preferred Stock shall be in arrears in
an
amount equal to six quarterly dividends thereon, the occurrence of such
contingency shall xxxx the beginning of a period (herein called a "default
period") which shall extend until such time when all accrued and unpaid
dividends for all previous quarterly dividend periods and for the current
quarterly dividend period on all shares of Series A Preferred Stock then
outstanding shall have been declared and paid or set apart for
payment. During each default period, all holders of Preferred Stock
(including holders of the Series A Preferred Stock) with dividends in arrears
in
an amount equal to six quarterly dividends thereon, voting as a class,
irrespective of series, shall have the right to elect two directors in addition
to any number of directors that the holders of any series of Preferred Stock
may
otherwise be entitled to elect.
(ii) During
any default period, such voting right of the holders of Series A Preferred
Stock
may be exercised initially at a special meeting called pursuant to subparagraph
(iii) of this Section 3(C) or at any annual meeting of shareholders, and
thereafter at annual meetings of shareholders, provided that such voting right
shall not be exercised unless the holders of 10% in number of shares of
Preferred Stock outstanding shall be present at the meeting in person or by
proxy. The absence of a quorum of the holders of Common Stock shall
not affect the exercise by the holders of Preferred Stock of such voting
right. At any meeting at which the holders of Preferred Stock shall
exercise such voting right initially during an existing default period, they
shall have the right, voting as a class, to elect directors to fill such
vacancies, if any, in the Board of Directors as may then exist up to two
directors or, if such right is exercised at an annual meeting, to elect two
directors. If the number which may be so elected at any special
meeting does not amount to the required number, the holders of the Preferred
Stock shall have the right to make such increase in the number of directors
as
shall be necessary to permit the election by them of the required
number. After the holders of the Preferred Stock shall have exercised
their right to elect directors in any default period and during the continuance
of such period, the number of directors shall not be increased or decreased
except by vote of the holders of Preferred Stock as herein provided or pursuant
to the rights of any equity securities ranking senior to or pari passu with
the
Series A Preferred Stock.
(iii) Unless
the holders of Preferred Stock shall, during an existing default period, have
previously exercised their right to elect directors, the Board of Directors
may
order, or any shareholder or shareholders owning in the aggregate not less
than
10% of the total number of shares of Preferred Stock outstanding, irrespective
of series, may request, the calling of a special meeting of the holders of
Preferred Stock, which meeting shall thereupon be called
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT A
by
the
Chairman, President, a Vice President or the Secretary of the
Corporation. Notice of such meeting and of any annual meeting at
which holders of Preferred Stock are entitled to vote pursuant to this paragraph
(C)(iii) shall be given to each holder of record of Preferred Stock by mailing
a
copy of such notice to the holder at the holder's last address appearing on
the
books of the Corporation. Such meeting shall be called for a time not
earlier than 10 days and not later than 50 days after such order or request
or
in default of the calling of such meeting within 50 days after such order or
request, such meeting may be called on similar notice by any shareholder or
shareholders owning in the aggregate not less than 10% of the total number
of
shares of Preferred Stock outstanding. Notwithstanding the provisions
of this paragraph (C)(iii), no such special meeting shall be called during
the
period within 50 days immediately preceding the date fixed for the next annual
meeting of the shareholders.
(iv) In
any default period, the holders of Common Stock, and other classes of stock
of
the Corporation, if applicable, shall continue to be entitled to elect the
whole
number of directors until the holders of Preferred Stock shall have exercised
their right to elect two directors voting as a class, after the exercise of
which right (x) the directors so elected by the holders of Preferred Stock
shall
continue in office until their successors shall have been elected by such
holders or until the expiration of the default period, and (y) any vacancy
in
the Board of Directors may, except as provided in paragraph (C)(ii) of this
Section 3, be filled by vote of a majority of the remaining directors
theretofore elected by the holders of the class of stock which elected the
director whose office shall have become vacant. References in this
paragraph (C) to directors elected by the holders of a particular class of
stock
shall include directors elected by such directors to fill vacancies, as provided
in clause (y) of the foregoing sentence.
(iv) Immediately
upon the expiration of a default period, (x) the right of the holders of
Preferred Stock as a class to elect directors shall cease, (y) the term of
any
directors elected by the holders of Preferred Stock as a class shall terminate,
and (z) the number of directors shall be such number as may be provided for
in
the Restated Articles of Incorporation or Restated Bylaws irrespective of any
increase made pursuant to the provisions of paragraph (C)(ii) of this Section
3
(such number being subject, however, to change thereafter in any manner provided
by law or in the Restated Articles of Incorporation or Restated
Bylaws). Any vacancies in the Board of Directors effected by the
provisions of clauses (y) and (z) in the preceding sentence may be filled by
a
majority of the remaining directors.
(D) Except
as set forth herein, holders of Series A Preferred Stock shall have no special
voting rights and their consent shall not be required (except to the extent
they
are entitled to vote with holders of Common Stock as set forth herein) for
taking any corporate action.
Section
4. Certain
Restrictions.
(A) Whenever
quarterly dividends or other dividends or distributions payable on the Series
A
Preferred Stock as provided in Section 2 are in arrears, thereafter and until
all
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT A
accrued
and unpaid dividends and distributions, whether or not declared, on shares
of
Series A Preferred Stock outstanding shall have been paid in full, the
Corporation shall not:
(i) declare
or pay dividends on, make any other distributions on, or redeem or
purchase or otherwise acquire for consideration any shares of stock ranking
junior (either as to dividends or upon liquidation, dissolution or winding
up)
to the Series A Preferred Stock;
(ii) declare
or pay dividends on or make any other distributions on any
shares of stock ranking on a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred Stock, except dividends
paid ratably on the Series A Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to the total amounts to which
the holders of all such shares are then entitled;
(iii) redeem
or purchase or otherwise acquire for consideration shares of any stock ranking
on a parity (either as to dividends or upon liquidation, dissolution or winding
up) with the Series A Preferred Stock, provided that the Corporation may
at any time redeem, purchase or otherwise acquire shares of any such parity
stock in exchange for shares of any stock of the Corporation ranking junior
(either as to dividends or upon dissolution, liquidation or winding up) to
the
Series A Preferred Stock; or
(iv) purchase
or otherwise acquire for consideration any shares of Series A Preferred Stock,
or any shares of stock ranking on a parity with the Series A Preferred Stock,
except in accordance with a purchase offer made in writing or by publication
(as
determined by the Board of Directors) to all holders of such shares upon such
terms as the Board of Directors, after consideration of the respective annual
dividend rates and other relative rights and preferences of the respective
series and classes, shall determine in good faith will result in fair and
equitable treatment among the respective series or classes.
(B) The
Corporation shall not permit any subsidiary of the Corporation to purchase
or
otherwise acquire for consideration any shares of stock of the Corporation
unless the Corporation could, under Section 4(A), purchase or otherwise acquire
such shares at such time and in such manner.
Section
5. Reacquired
Shares.
Any
shares of Series A Preferred Stock
purchased or otherwise acquired by the Corporation in any manner whatsoever
shall be retired and cancelled promptly after the acquisition
thereof. All such shares shall upon their cancellation become
authorized but unissued shares of Preferred Stock, without designation as to
series, and may be reissued as part of a new series of Preferred Stock to be
created by resolution or resolutions of the Board of Directors, subject to
the
conditions and restrictions on issuance set forth herein or in the Restated
Articles of Incorporation.
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT A
Section
6. Liquidation,
Dissolution or Winding Up.
(A) Upon
any liquidation (voluntary or otherwise), dissolution or winding up of the
Corporation, no distribution shall be made to:
(i) the
holders of shares of stock ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A Preferred Stock, unless,
prior thereto, the holders of shares of Series A Preferred Stock shall have
received the higher of (a) $0.01 per share, plus an amount equal to accrued
and unpaid dividends and distributions thereon, whether or not declared, to
the
date of such payment, or (b) an aggregate amount per share, subject to the
provision for adjustment hereinafter set forth, equal to 1,000 times the
aggregate amount to be distributed per share to holders of Common Stock;
or
(ii) the
holders of stock ranking on a parity (either as to dividends or upon
liquidation, dissolution or winding up) with the Series A Preferred Stock,
except distributions made ratably on the Series A Preferred Stock and all other
such parity stock in proportion to the total amounts to which the holders of
all
such shares are entitled upon such liquidation, dissolution or winding
up.
(B) In
the event the Corporation shall at any time (i) declare any dividend on
Common Stock payable in shares of Common Stock, or (ii) subdivide, combine
or
consolidate the outstanding shares of Common Stock (by reclassification or
otherwise) into a greater or smaller number of shares, then in each such case
the aggregate amount to which holders of shares of Series A Preferred Stock
are
entitled under clause (i)(b) of Section 6(A) hereof shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number
of
shares of Common Stock outstanding immediately after such event and the
denominator of which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
Section
7. Consolidation,
Merger, Etc.
In
case the Corporation shall enter
into any consolidation, merger, combination or other transaction in which shares
of Common Stock are exchanged for or changed into other stock or securities,
cash and/or any other property, then in any such case the shares of Series
A
Preferred Stock shall at the same time be similarly exchanged or changed in
an
amount per share (subject to the provision for adjustment hereinafter set forth)
equal to 1,000 times the aggregate amount of stock, securities, cash and/or
any
other property (payable in kind), as the case may be, into which or for which
each share of Common Stock is changed or exchanged. In the event the
Corporation shall at any time (i) declare any dividend on Common Stock payable
in shares of Common Stock, (ii) subdivide the outstanding Common Stock, or
(iii)
combine the outstanding Common Stock into a smaller number of shares, then
in
each such case the amount set forth in the preceding sentence with respect
to
the exchange or change of shares of Series A Preferred Stock shall be adjusted
by multiplying such amount by a fraction the numerator of which is the number
of
shares of Common Stock outstanding immediately after such event and
the
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT A
denominator
of which is the number of shares of Common Stock that were outstanding
immediately prior to such event.
Section
8. No
Redemption.
The
shares of Series A Preferred Stock
shall not be redeemable. Notwithstanding the foregoing, the
Corporation may acquire shares of Series A Preferred Stock in any other manner
permitted by law, the Restated Articles of Incorporation or this amendment
thereof.
Section
9. Rank.
Unless
otherwise provided in the
Restated Articles of Incorporation or an amendment thereof relating to a
subsequent series of Preferred Stock of the Corporation, the Series A Preferred
Stock shall rank junior to all other series of the Corporation's Preferred
Stock
as to the payment of dividends and the distribution of assets on liquidation,
dissolution or winding up, and senior to the Common Stock of the
Corporation.
Section
10. Amendment.
The
Restated Articles of Incorporation
shall not be further amended in any manner which would materially alter or
change the powers, preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the affirmative vote of the holders
of at least a majority of the outstanding shares of Series A Preferred Stock,
voting separately as a class.
Section
11. Fractional
Shares.
Series
A Preferred Stock may be issued
in fractions of a share which shall entitle the holder, in proportion to such
holder’s fractional shares, to exercise voting rights, receive dividends,
participate in distributions and to have the benefit of all other rights of
holders of Series A Preferred Stock.
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT A
EXHIBIT
B
Form
of
Rights Certificate
Certificate
No.
R-__ _______
Rights
NOT
EXERCISABLE AFTER November 13, 2017, OR EARLIER IF REDEEMED BY THE
COMPANY. THE RIGHTS ARE SUBJECT TO REDEMPTION, AT THE OPTION OF THE
COMPANY, AT $0.01 PER RIGHT ON THE TERMS SET FORTH IN THE RIGHTS
AGREEMENT. UNDER CERTAIN CIRCUMSTANCES, RIGHTS BENEFICIALLY OWNED BY
AN ACQUIRING PERSON OR ADVERSE PERSON (AS SUCH TERMS ARE DEFINED IN THE RIGHTS
AGREEMENT) AND ANY SUBSEQUENT HOLDER OF SUCH RIGHTS MAY BECOME NULL AND
VOID. {THE RIGHTS REPRESENTED BY THIS RIGHTS CERTIFICATE ARE OR WERE
BENEFICIALLY OWNED BY A PERSON WHO WAS OR BECAME AN ACQUIRING PERSON OR ADVERSE
PERSON OR AN AFFILIATE OR ASSOCIATE OF AN ACQUIRING PERSON OR ADVERSE PERSON
(AS
SUCH TERMS ARE DEFINED IN THE RIGHTS AGREEMENT). ACCORDINGLY, THIS
RIGHTS CERTIFICATE AND THE RIGHTS REPRESENTED HEREBY MAY BECOME NULL AND VOID
IN
THE CIRCUMSTANCES SPECIFIED IN SECTION 7(e) OF SUCH AGREEMENT.}1
Rights
Certificate
KEY
TECHNOLOGY, INC.
This
certifies that ________________________________, or registered assigns, is
the
registered owner of the number of Rights set forth above, each of which entitles
the owner thereof, subject to the terms, provisions and conditions of the Rights
Agreement, dated as of November 13, 2007 (the "Rights Agreement"), between
Key
Technology, Inc., an Oregon corporation (the "Company"), and American Stock
Transfer & Trust Company (the "Rights Agent"), to purchase from the Company
at any time prior to 5:00 p.m. (Pacific time) on November 13, 2017 at the
office or offices of the Rights Agent designated for such purpose, or its
successors as Rights Agent, 1/1,000 of a fully paid, nonassessable share of
Series A Junior Participating Preferred Stock (the "Preferred Stock") of the
Company, at a purchase price of $___ per 1/1,000 of a share (the "Purchase
Price"), upon presentation and surrender of this Rights
1
The portion of the
legend in brackets shall be inserted only if applicable and shall replace
the
preceding sentence.
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT B
Certificate
with the Form of Election to Purchase and related Certificate duly
executed. The number of Rights evidenced by this Rights Certificate
(and the number of shares which may be purchased upon exercise thereof) set
forth above, and the Purchase Price per share set forth above, are the number
and Purchase Price as of ___________, based on the Preferred Stock as
constituted at such date. The Company reserves the right to require
prior to the occurrence of a Triggering Event (as such term is defined in the
Rights Agreement) that a number of Rights be exercised so that only whole shares
of Preferred Stock will be issued.
Upon
the
occurrence of a Section 11(a)(ii) Event (as such term is defined in the Rights
Agreement), if the Rights evidenced by this Rights Certificate are beneficially
owned by (i) an Acquiring Person or Adverse Person or an Affiliate or Associate
of any such Acquiring Person or Adverse Person (as such terms are defined in
the
Rights Agreement), (ii) a transferee of any such Acquiring Person or Adverse
Person, Associate or Affiliate, or (iii) under certain circumstances specified
in the Rights Agreement, a transferee of a person who, after such transfer,
became an Acquiring Person or Adverse Person, or an Affiliate or Associate
of an
Acquiring Person or Adverse Person, such Rights shall become null and void
and
no holder hereof shall have any right with respect to such Rights from and
after
the occurrence of such Section 11(a)(ii) Event.
As
provided in the Rights Agreement, the Purchase Price and the number and kind
of
shares of Preferred Stock or other securities which may be purchased upon the
exercise of the Rights evidenced by this Rights Certificate are subject to
modification and adjustment upon the happening of certain events, including
Triggering Events. In certain circumstances described in the Rights
Agreement, the Rights evidenced hereby may entitle the holder hereof to purchase
capital stock of an entity other than the Company or receive cash or other
assets, all as prescribed in the Rights Agreement.
This
Rights Certificate is subject to all of the terms, provisions and conditions
of
the Rights Agreement, which terms, provisions and conditions are hereby
incorporated herein by reference and made a part hereof and to which Rights
Agreement reference is hereby made for a full description of the rights,
limitations of rights, obligations, duties and immunities hereunder of the
Rights Agent, the Company and the holders of the Rights Certificates, which
limitations of rights include the temporary suspension of the exercisability
of
such Rights under the specific circumstances set forth in the Rights
Agreement. Copies of the Rights Agreement are on file at the
principal executive offices of the Company and are also available upon written
request to the Rights Agent.
This
Rights Certificate, with or without other Rights Certificates, upon surrender
at
the principal office or offices of the Rights Agent designated for such purpose,
may be exchanged for another Rights Certificate or Rights Certificates of like
tenor and date evidencing Rights entitling the holder to purchase a like
aggregate number of 1/1,000s of a share of Preferred Stock as the Rights
evidenced by the Rights Certificate or Rights Certificates surrendered shall
have entitled such holder to purchase. If this Rights Certificate
shall be
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT B
exercised
in part, the holder shall be entitled to receive upon surrender hereof another
Rights Certificate or Rights Certificates for the number of whole Rights not
exercised.
Subject
to the provisions of the Rights Agreement, the Rights evidenced by this
Certificate may be redeemed by the Company at its option at a redemption price
of $0.01 per Right at any time prior to the earlier of the close of business
on
(i) the twentieth business day following the Stock Acquisition Date (as such
time period may be extended pursuant to the Rights Agreement), and (ii) the
Final Expiration Date. In addition, the Rights may be exchanged, in
whole or in part, for shares of the Common Stock, or shares of preferred stock
of the Company having essentially the same value or economic rights as such
shares. Immediately upon the action of the Board of Directors of the
Company authorizing any such exchange, and without any further action or any
notice, the Rights (other than Rights which are not subject to such exchange)
will terminate and the Rights will only enable holders to receive the shares
issuable upon such exchange.
No
fractional shares of Preferred Stock will be issued upon the exercise of any
Right or Rights evidenced hereby (other than fractions which are integral
multiples of 1/1,000 of a share of Preferred Stock, which may, at the election
of the Company, be evidenced by depository receipts), but in lieu thereof a
cash
payment will be made, as provided in the Rights Agreement.
No
holder
of this Rights Certificate shall be entitled to vote or receive dividends or
be
deemed for any purpose the holder of shares of Preferred Stock or of any other
securities of the Company which may at any time be issuable on the exercise
hereof, nor shall anything contained in the Rights Agreement or herein be
construed to confer upon the holder hereof, as such, any of the rights of a
shareholder of the Company or any right to vote for the election of directors
or
upon any matter submitted to shareholders at any meeting thereof, or to give
or
withhold consent to any corporate action, or, to receive notice of meetings
or
other actions affecting shareholders (except as provided in the Rights
Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Rights Certificate shall have been
exercised as provided in the Rights Agreement.
This
Rights Certificate shall not be valid or obligatory for any purpose until it
shall have been countersigned by the Rights Agent.
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT B
WITNESS
the facsimile signature of the proper officers of the Company and its corporate
seal.
Dated
as
of ______________________
ATTEST:
KEY TECHNOLOGY, INC.
By
___________________________ By
___________________________
Secretary
Title __________________________
Countersigned:
AMERICAN
STOCK TRANSFER
&
TRUST COMPANY
By
____________________________
Authorized
Signature
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT B
Form
of
Reverse Side of Rights Certificate
FORM
OF
ASSIGNMENT
(To
be
executed by the registered holder if such
holder
desires to transfer the Rights Certificate.)
FOR
VALUE
RECEIVED ______________________________________________ hereby sells, assigns
and transfer unto
______________________________________________________________
_________________________________________________________________________________________________
(Please
print name and address of transferee)
this
Rights Certificate, together with all right, title and interest therein, and
does hereby irrevocably constitute and appoint _________________ Attorney,
to
transfer the within Rights Certificate on the books of the within-named Company,
with full power of substitution.
Dated:
_________________
___________________________
Signature
Signature
Guaranteed:
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT B
CERTIFICATE
The
undersigned hereby certifies by checking the appropriate boxes
that:
(1) this
Rights Certificate [ ] is [ ] is not being sold, assigned
and transferred by or on behalf of a Person who is or was an Acquiring Person
or
Adverse Person or an Affiliate or Associate of any such Acquiring Person or
Adverse Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after
due inquiry and to the best knowledge of the undersigned, it [ ]
did
[ ] did
not acquire the Rights evidenced by this Rights Certificate from any Person
who
is, was or subsequently became an Acquiring Person or Adverse Person or an
Affiliate or Associate of an Acquiring Person or Adverse Person.
Dated: _____________________ _________________________________________
Signature
Signature
Guaranteed:
NOTICE
The
signature to the foregoing Assignment and Certificate must correspond to the
name as written upon the face of this Rights Certificate in every particular,
without alteration or enlargement or any change whatsoever.
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT B
FORM
OF
ELECTION TO PURCHASE
(To
be
executed if holder desires to
exercise
Rights represented by the
Rights
Certificate)
To: KEY
TECHNOLOGY, INC.
The
undersigned hereby irrevocably elects to exercise ____ Rights represented by
this Rights Certificate to purchase the shares of Preferred Stock issuable
upon
the exercise of the Rights (or such other securities of the Company or of any
other person which may be issuable upon the exercise of the Rights) and requests
that certificates for such shares be issued in the name of and delivered
to:
Please
insert social security
or
other
identifying number:
____________________________
__________________________________________________________________________________________________________________________________________
(Please print name and address)
(Please print name and address)
___________________________________________________________________________________________________________________________________________
If
such
number of Rights shall not be all the Rights evidenced by this Rights
Certificate, a new Rights Certificate for the balance of such Rights shall
be
registered in the name of and delivered to:
Please
insert social security
or
other
identifying
number: _____________________________
___________________________________________________________________________________________________________________________________________
(Please print name and address)
(Please print name and address)
___________________________________________________________________________________________________________________________________________
Dated: _______________________
Signature __________________________
Signature
Guaranteed:
SECOND AMENDED AND
RESTATED RIGHTS PLAN
EXHIBIT B
CERTIFICATE
The
undersigned hereby certifies by
checking the appropriate boxes that:
(1) the
Rights evidenced by this Rights Certificate [ ] are [ ]
are not being exercised by or on behalf of a Person who is or was an Acquiring
Person or Adverse Person or an Affiliate or Associate of any such Acquiring
Person or Adverse Person (as such terms are defined pursuant to the Rights
Agreement);
(2) after
due inquiry and to the best knowledge of the undersigned, it [ ]
did
[ ]
did not acquire the Rights evidenced by this Rights Certificate from any Person
who is, was or became an Acquiring Person or Adverse Person or an Affiliate
or
Associate of an Acquiring Person or Adverse Person.
Dated: _____________________ ___________________________________
Signature
Signature
Guaranteed:
NOTICE
The
signature to the foregoing Election to Purchase and Certificate must correspond
to the name as written upon the face of this Rights Certificate in every
particular, without alteration or enlargement or any change
whatsoever.
SECOND
AMENDED AND RESTATED RIGHTS PLAN
EXHIBIT B
