exv4w3






Exhibit 4.3




ASYST TECHNOLOGIES, INC.




and




COMPUTERSHARE TRUST COMPANY, N.A., as Rights Agent




AMENDED AND RESTATED RIGHTS AGREEMENT




Dated as of July 9, 2008




 









 





AMENDED AND RESTATED RIGHTS AGREEMENT




     This Amended and Restated Rights Agreement (the “Agreement”), is made as of July 9, 2008, by
and between Asyst Technologies, Inc., a California corporation (the “Company”), and Computershare
Trust Company, N.A., as Rights Agent (the “Rights Agent”).



RECITALS




     WHEREAS, the Board of Directors of the Company (the “Board of Directors”) previously approved
and the Company entered into a Rights Agreement with BankBoston, N.A., as the original rights
agent, dated as of June 25, 1998, which was amended on November 30, 2001 (as so amended, the “Prior
Agreement”);



     WHEREAS, in connection with the Prior Agreement, on June 22, 1998, the Board of Directors
authorized and declared a dividend of one preferred share purchase right (a “Right” and,
collectively, the “Rights”) with respect to each Common Share (as defined in Section 1.6 below)
outstanding as of the close of business on July 10, 1998 (the “Record Date”), each Right
representing the right to purchase a fraction of a share of Series A Junior Participating Preferred
Stock (the “Preferred Shares”) of the Company as set forth in the Prior Agreement;



     WHEREAS, the Board of Directors has determined that it is in the best interests of the Company
and its shareholders to amend and restate the Prior Agreement, including, without limitation, the
terms and conditions of the Rights as set forth herein and the rights, powers and preferences of
the Preferred Shares as set forth in the form of Certificate of Determination attached as
Exhibit A hereto;



     WHEREAS, the Company and the Rights Agent have agreed to the amendment and restatement of the
Prior Agreement as set forth herein; and



     WHEREAS, the Company has determined that, pursuant to Section 27 of the Prior Agreement, the
Prior Agreement may be amended and restated as set forth herein without the approval of the holders
of the Rights;



     NOW, THEREFORE, in consideration of the premises and the mutual agreements herein set forth,
the parties hereby amend and restate the Prior Agreement, including, without limitation, the terms
and conditions of the Rights previously granted, in its entirety as follows:



     Section 1. Certain Definitions. For purposes of this Agreement, the following terms
have the meanings indicated:



          1.1. “Acquiring Person” shall mean any Person (as such term is hereinafter defined) who or
which, together with all Affiliates and Associates (as such terms are hereinafter defined) of such
Person, shall be the Beneficial Owner (as such term is




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hereinafter defined) of fifteen percent (15%) or more of the Common Shares of the Company then
outstanding but shall not include an Exempt Person (as such term is hereinafter defined).
Notwithstanding the foregoing, no Person shall become an “Acquiring Person” as the result of an
acquisition of Common Shares by the Company which, by reducing the number of shares outstanding,
increases the proportionate number of shares Beneficially Owned by such Person to fifteen percent
(15%) or more of the Common Shares of the Company then outstanding; provided,
however, that if a Person shall become the Beneficial Owner of fifteen percent (15%) or
more of the Common Shares of the Company then outstanding solely by reason of share purchases by
the Company and shall, after such share purchases by the Company, become the Beneficial Owner of
one or more additional Common Shares of the Company (other than pursuant to a dividend or
distribution paid or made by the Company on the outstanding Common Shares in Common Shares or
pursuant to a split or subdivision of the outstanding Common Shares), then such Person shall be
deemed to be an “Acquiring Person” unless upon becoming the Beneficial Owner of such additional
Common Shares such Person does not Beneficially Own fifteen percent (15%) or more of the Common
Shares then outstanding. Notwithstanding the foregoing, if the Board of Directors determines in
good faith that a Person who would otherwise be an “Acquiring Person,” as defined pursuant to the
foregoing provisions of this Section 1.1, has become such inadvertently (including, without
limitation, because (A) such Person was unaware that it Beneficially Owned a percentage of the
Common Shares that would otherwise cause such Person to be an “Acquiring Person” or (B) such Person
was aware of the extent of its Beneficial Ownership of Common Shares but had no actual knowledge of
the consequences of such Beneficial Ownership under this Agreement), and without any intention of
changing or influencing control of the Company, and such Person divests, as soon as practicable (as
determined, in good faith, by the Board of Directors), a sufficient number of Common Shares so that
such Person would no longer be an Acquiring Person, as defined pursuant to the foregoing provisions
of this Section 1.1 (or, in the case solely of Derivative Common Shares (as such term is
hereinafter defined), such Person terminates the subject derivative transaction or transactions or
disposes of the subject derivative security or securities, or establishes to the satisfaction of
the Board of Directors that such Derivative Common Shares are not held with any intention of
changing or influencing control of the Company), then such Person shall not be deemed to be or have
become an “Acquiring Person” at any time for any purposes of this Agreement. For all purposes of
this Agreement, any calculation of the number of Common Shares outstanding at any particular time,
for purposes of determining the particular percentage of such outstanding Common Shares of which
any Person is the Beneficial Owner, shall include Common Shares deemed to be Beneficially Owned by
the Person in accordance with Section 1.3, but shall not include any other unissued Common Shares
which may be issuable pursuant to any agreement, arrangement or understanding, or upon exercise of
conversion rights, warrants or options, or otherwise.




          1.2. “Affiliate” and “Associate” shall have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations, under the Securities Exchange Act of 1934, as
amended (the “Exchange Act”), as in effect on the date of this Agreement.




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          1.3. A Person shall be deemed the “Beneficial Owner” of and shall be deemed to “Beneficially
Own” and have “Beneficial Ownership” of any securities:




               (i) which such Person or any of such Person’s Affiliates or Associates beneficially owns,
directly or indirectly (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);



               (ii) which such Person or any of such Person’s Affiliates or Associates, directly or
indirectly, has (A) the right to acquire (whether such right is exercisable immediately, or only
after the passage of time, compliance with regulatory requirements, fulfillment of a condition or
otherwise) pursuant to any agreement, arrangement or understanding, whether or not in writing
(other than customary agreements with and between underwriters and selling group members with
respect to a bona fide public offering of securities), 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, (w) securities
tendered pursuant to a tender or exchange offer made by or on behalf of such Person or any of such
Person’s Affiliates or Associates until such tendered securities are accepted for purchase or
exchange, (x) securities which such Person has a right to acquire upon the exercise of Rights at
any time prior to the time that any Person becomes an Acquiring Person, (y) securities issuable
upon the exercise of Rights from and after the time that any Person becomes an Acquiring Person if
such Rights were acquired by such Person or any of such Person’s Affiliates or Associates prior to
the Distribution Date or pursuant to Section 3.1 or Section 22 (the “Original Rights”) or pursuant
to Section 11.9 or Section 11.15 with respect to an adjustment to Original Rights or (z) securities
which such Person or any of such Person’s Affiliates or Associates may acquire, does or do acquire
or may be deemed to acquire or may be deemed to have the right to acquire, pursuant to any merger
or other acquisition agreement between the Company and such Person (or one or more of such Person’s
Affiliates or Associates) if prior to such Person becoming an Acquiring Person the Board of
Directors has approved such agreement and determined that such Person shall not be or be deemed to
be the Beneficial Owner of such securities within the meaning of this Section 1.3; or (B) through
any written or oral agreement, or arrangement, relationship, understanding or otherwise has or
shares the power to vote, or direct the voting of such securities; provided,
however, that a Person shall not be deemed the Beneficial Owner of, or to Beneficially Own,
any security under this clause (B) if the agreement, arrangement or understanding to vote such
security (1) arises solely from a revocable proxy or consent given to such Person in response to a
public proxy or consent solicitation made pursuant to, and in accordance with, the applicable rules
and regulations of the Exchange Act and (2) is not also then reportable on Schedule 13D under the
Exchange Act (or any comparable or successor report);



               (iii) which are Beneficially Owned, directly or indirectly, by any other Person (or any
Affiliate or Associate thereof) and with respect to which such Person or any of such Person’s
Affiliates or Associates has any agreement, arrangement or understanding (other than customary
agreements with and between underwriters and selling group



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members with respect to a bona fide public offering of securities), whether or not in writing,
for the purpose of acquiring, holding, voting (except voting pursuant to a revocable proxy or
consent as described in the proviso to Section 1.3(ii)(B)) or disposing of any securities of the
Company with any other Person that Beneficially Owns, or whose Affiliates or Associates
Beneficially Own, directly or indirectly, such securities; or




               (iv) after the date hereof, that are the subject of a derivative transaction entered into by
such Person, or derivative security acquired by such Person, which gives such Person the economic
equivalent of ownership of an amount of such securities due to the fact that the value of the
derivative is explicitly determined by reference to the price or value of such securities, without
regard to whether (a) such derivative conveys any voting rights in such securities to such Person,
(b) the derivative is required to be, or capable of being, settled through delivery of such
securities, or (c) such Person may have entered into other transactions that hedge the economic
effect of such derivative. In determining the number of Common Shares deemed Beneficially Owned by
virtue of the operation of this Section 1.3(iv), the subject Person shall be deemed to Beneficially
Own (without duplication) the number of Common Shares that are synthetically owned pursuant to such
derivative transactions or such derivative securities. Such Common Shares that are deemed so
Beneficially Owned pursuant to the operation of this Section 1.3(iv) shall be referred to herein as
“Derivative Common Shares.”



               No Person who is an officer, director or employee of an Exempt Person shall be deemed, solely
by reason of such Person’s status or authority as such, to be the “Beneficial Owner” of, to have
“Beneficial Ownership” of or to “Beneficially Own” any securities that are “Beneficially Owned” (as
defined in this Section 1.3), including, without limitation, in a fiduciary capacity, by an Exempt
Person or by any other such officer, director or employee of an Exempt Person.



          1.4. “Business Day” shall mean any day other than a Saturday, Sunday, or a day on which
banking institutions in the states of California, New York or the state in which the principal
office of the Rights Agent is located are authorized or obligated by law or executive order to
close.




          1.5. “close of business” on any given date shall mean 5:00 p.m., Massachusetts time, on such
date; provided, however, that if such date is not a Business Day it shall mean 5:00
p.m., Massachusetts time, on the next succeeding Business Day.




          1.6. “Common Shares” when used with reference to the Company shall mean the shares of common
stock, no par value per share, of the Company. “Common Shares” when used with reference to any
Person other than the Company shall mean the capital stock with the greatest voting power, or the
equity securities or other equity interest having power to control or direct the management, of
such other Person or, if such Person is a Subsidiary (as such term is hereinafter defined) of
another Person, the Person or Persons which ultimately control such first-mentioned Person, and
which has issued and outstanding such capital stock, equity securities or equity interest.




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          1.7. “Definitive Acquisition Agreement” shall mean any agreement entered into by the Company
that is conditioned on the approval by the holders of not less than a majority of the outstanding
shares of Common Shock at a meeting of stockholders with respect to (i) a merger, consolidation,
recapitalization, reorganization, share exchange, business combination or similar transaction
involving the Company or (ii) the acquisition in any manner, directly or indirectly, of more than
fifty percent (50%) of the consolidated total assets (including, without limitation, equity
securities of its subsidiaries) of the Company.




          1.8 “Exempt Person” shall mean the Company and any Subsidiary of the Company, in each case
including, without limitation, the officers and board of directors thereof acting in their
fiduciary capacity, or any employee benefit plan of the Company or of any Subsidiary of the Company
or any entity or trustee holding shares of capital stock of the Company for or pursuant to the
terms of any such plan, or for the purpose of funding other employee benefits for employees of the
Company or any Subsidiary of the Company.




          1.9. “Independent Directors” shall mean members of the Board of Directors of the Company who
are not officers, employees or Affiliates (or designees of Affiliates) of the Company.




          1.10. “Outside Meeting Date” shall have the meaning set forth in Section 23.2.




          1.11. “Person” shall mean any individual, partnership, joint venture, limited liability
company, firm, corporation, unincorporated association, trust or other entity, and shall include
any successor (by merger or otherwise) of such entity.




          1.12. “Qualified Offer” shall mean an offer determined by a majority of the Independent
Directors to have each of the following characteristics:




               (i) a fully-financed, all-cash tender offer, or an exchange offer offering shares of common
stock of the offeror, or a combination thereof, in each such case for all of the outstanding shares
of Common Shares at the same per-share consideration;



               (ii) an offer that has commenced within the meaning of Rule 14d-2(a) under the Exchange Act;



               (iii) an offer whose per-share offer price is greater than the highest reported market price
for the Common Shares in the immediately preceding eighteen (18) months, with, in the case of an
offer that includes shares of common stock of the offeror, such per-share offer price being
determined using the lowest reported market price for common stock of the offeror during the five
(5) trading days immediately preceding and the five (5) trading days immediately following the
commencement of such offer within the meaning of Rule 14d-2(a) under the Exchange Act;



               (iv) an offer that, within twenty (20) Business Days after the commencement date of the offer
(or within ten (10) Business Days after any increase in the offer consideration), does not result
in a nationally recognized investment banking firm



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retained by the Board of Directors rendering an opinion to the Board of Directors that the
consideration being offered to the shareholders of the Company is either unfair or inadequate;




               (v) if the offer includes shares of common stock of the offeror, an offer pursuant to which
(A) the offeror shall permit representatives of the Company (including a nationally-recognized
investment banking firm retained by the Board of Directors and legal counsel and an accounting firm
designated by the Company) to have access to such offeror’s books, records, management, accountants
and other appropriate outside advisors for the purposes of permitting such representatives to
conduct a due diligence review of the offeror in order to permit the Board of Directors to evaluate
the offer and make an informed decision and, if requested by the Board of Directors, to permit such
investment banking firm (relying as appropriate on the advice of such legal counsel) to be able to
render an opinion to the Board of Directors with respect to whether the consideration being offered
to the shareholders of the Company is fair from a financial point of view and (B) within ten (10)
Business Days after such representatives of the Company (including a nationally-recognized
investment banking firm retained by the Board of Directors and legal counsel and an accounting firm
designated by the Company) shall have notified the Company and the offeror that it has completed
such due diligence review to its satisfaction (or, following completion of such due diligence
review, within ten (10) Business Days after any increase in the consideration being offered), such
investment banking firm does not render an opinion to the Board of Directors that the consideration
being offered to the shareholders of the Company is either unfair or inadequate and such investment
banking firm does not, after the expiration of such ten (10) Business Day period, render an opinion
to the Board of Directors that the consideration being offered to the shareholders of the Company
has become either unfair or inadequate based on a subsequent disclosure or discovery of a
development or developments that have had or are reasonably likely to have a material adverse
effect on the value of the common stock of the offeror;



               (vi) an offer that is subject to only the minimum tender condition described below in
Section 1.12(ix) and other customary terms and conditions, which conditions shall not include any
financing, funding or similar conditions or any requirements with respect to the offeror or its
agents being permitted any due diligence with respect to the books, records, management,
accountants or other outside advisors of the Company;



               (vii) an offer pursuant to which the Company has received an irrevocable written commitment of
the offeror that the offer will remain open for at least one hundred twenty (120) Business Days
and, if a Special Meeting is duly requested in accordance with Section 23.2, for at least ten (10)
Business Days after the date of the Special Meeting or, if no Special Meeting is held within ninety
(90) Business Days following receipt of the Special Meeting Notice in accordance with Section 23.2,
for at least ten (10) Business Days following such ninety (90) Business Day period;



               (viii) an offer pursuant to which the Company has received an irrevocable written commitment
of the offeror that, in addition to the minimum time periods specified above in Section 1.12(vii),
the offer, if it is otherwise to expire prior thereto, will be



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extended for at least twenty (20) Business Days after any increase in the consideration being
offered or after any bona fide alternative offer is commenced within the meaning of Rule 14d-2(a)
under the Exchange Act; provided, however, that such offer need not remain open, as
a result of Section 1.12(vii) and this Section 1.12(viii), beyond (A) the time that any other offer
satisfying the criteria for a Qualified Offer is then required to be kept open under such
Section 1.12(vii) and this Section 1.12(viii) or (B) the expiration date, as such date may be
extended by public announcement (with prompt written notice to the Rights Agent) in compliance with
Rule 14e-1 under the Exchange Act, of any other tender offer for the Common Shares with respect to
which the Board of Directors has agreed to redeem the Rights immediately prior to acceptance for
payment of Common Shares thereunder (unless such other offer is terminated prior to its expiration
without any Common Shares having been purchased thereunder) or (C) one (1) Business Day after the
shareholder vote with respect to approval of any Definitive Acquisition Agreement has been
officially determined and certified by the inspectors of elections;




               (ix) an offer that is conditioned on a minimum of at least two-thirds (2/3rds) of the
outstanding shares of the Common Shares not held by the Person making such offer (and such Person’s
Affiliates and Associates) being tendered and not withdrawn as of the offer’s expiration date,
which condition shall not be waivable;



               (x) an offer pursuant to which the Company has received an irrevocable written commitment of
the offeror to consummate, as promptly as practicable upon successful completion of the offer, a
second step transaction whereby all shares of the Common Shares not tendered into the offer will be
acquired at the same consideration per share actually paid pursuant to the offer, subject to
shareholders’ statutory appraisal rights, if any;



               (xi) an offer pursuant to which the Company and its shareholders have received an irrevocable
written commitment of the offeror that no amendments will be made to the offer to reduce the
consideration being offered or to otherwise change the terms of the offer in a way that is adverse
to a tendering shareholder;



               (xii) an offer (other than an offer consisting solely of cash consideration) pursuant to which
the Company has received the written representation and certification of the offeror and, in their
individual capacities, the written representations and certifications of the offeror’s Chief
Executive Officer and Chief Financial Officer, that (A) all facts about the offeror that would be
material to making an investor’s decision to accept the offer have been fully and accurately
disclosed as of the date of the commencement of the offer within the meaning of Rule 14d-2(a) under
the Exchange Act, (B) all such new facts will be fully and accurately disclosed on a prompt basis
during the entire period during which the offer remains open, and (C) all required Exchange Act
reports will be filed by the offeror in a timely manner during such period; and



               (xiii) if the offer includes non-cash consideration, (A) the non-cash portion of the
consideration offered must consist solely of common stock of a Person that is a publicly-owned
United States corporation, (B) such common stock must be freely tradable



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and listed or admitted to trading on either the New York Stock Exchange or NASDAQ, (C) no
shareholder approval of the issuer of such common stock is required to issue such common stock, or,
if such approval required, such approval has already been obtained, (D) no Person (including such
Person’s Affiliates and Associates) beneficially owns more than fifteen percent (15%) of the voting
stock of the issuer of such common stock at the time of commencement of the offer or at any time
during the term of the offer, (E) no other class of voting stock of the issuer of such common stock
is outstanding and (F) the issuer of such common stock meets the registrant eligibility
requirements for use of Form S-3 for registering securities under the Securities Act, including the
filing of all required Exchange Act reports in a timely manner during the twelve (12) calendar
months prior to the date of commencement of such offer.




     For the purposes of this definition of “Qualified Offer,” “fully financed” shall mean that the
offeror has sufficient funds for the offer and related expenses which shall be evidenced by
(1) firm, unqualified, written commitments from responsible financial institutions having the
necessary financial capacity, accepted by the offeror, to provide funds for such offer subject only
to customary terms and conditions, (2) cash or cash equivalents then available to the offeror, set
apart and maintained solely for the purpose of funding the offer with an irrevocable written
commitment being provided by the offeror to the Board of Directors to maintain such availability
until the offer is consummated or withdrawn or (3) a combination of the foregoing; which evidence
has been provided to the Company prior to, or upon, commencement of the offer. If an offer becomes
a Qualified Offer in accordance with this definition, but subsequently ceases to be a Qualified
Offer as a result of the failure at a later date to continue to satisfy any of the requirements of
this definition, such offer shall cease to be a Qualified Offer and the provisions of Section 23.2
shall no longer be applicable to such offer, provided that the actual redemption of the Rights
pursuant to Section 23.2 shall not have already occurred.



          1.13. “Shares Acquisition Date” shall mean the first date of public announcement (which, for
purposes of this definition, shall include, without limitation, the filing of a report pursuant to
Section 13(d) of the Exchange Act or pursuant to a comparable successor statute) by the Company or
an Acquiring Person that an Acquiring Person has become such or that discloses information which
reveals the existence of an Acquiring Person or such earlier date as a majority of the Board of
Directors shall become aware of the existence of an Acquiring Person.




          1.14. “Subsidiary” of any Person shall mean any partnership, joint venture, limited liability
company, firm, unincorporated association, trust, corporation or other entity of which a majority
of the voting power of the voting equity securities or equity interests is owned, of record or
beneficially, directly or indirectly, by such Person.




          1.15. A “Trigger Event” shall be deemed to have occurred upon any Person becoming an Acquiring
Person.




          1.16. The following terms shall have the meanings defined for such terms in the Sections set
forth below:




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	Term	 	Section
	Adjustment Shares
	 	11.1.2
	 
	 	 
	Agreement
	 	Preamble
	 
	 	 
	Board of
Directors
	 	Recitals
	 
	 	 
	common stock equivalent
	 	11.1.3
	 
	 	 
	Company
	 	Preamble
	 
	 	 
	current per share market price
	 	11.4
	 
	 	 
	Current Value
	 	11.1.3
	 
	 	 
	Derivative Common Shares
	 	1.3
	 
	 	 
	Distribution Date
	 	3.1
	 
	 	 
	equivalent preferred stock
	 	11.2
	 
	 	 
	Exchange Act
	 	1.2
	 
	 	 
	Exchange Ratio
	 	27.1
	 
	 	 
	Expiration Date
	 	7.1
	 
	 	 
	Final Expiration Date
	 	7.1
	 
	 	 
	NASDAQ
	 	9
	 
	 	 
	NASDAQ GM
	 	9
	 
	 	 
	Original Rights
	 	1.3
	 
	 	 
	Outside
Meeting Date
	 	23.2
	 
	 	 
	Preferred Shares
	 	Recitals
	 
	 	 
	Principal Party
	 	13.2
	 
	 	 
	Prior
Agreement
	 	
Recitals
	 
	 	 
	Purchase Price
	 	7.2
	 
	 	 
	Record Date
	 	Recitals
	 
	 	 
	Redemption Date
	 	7.1
	 
	 	 
	Redemption Price
	 	23.1
	 
	 	 
	Redemption Resolution
	 	23.2
	 
	 	 
	Right
	 	Recitals
	 
	 	 
	Right Certificate
	 	3.1
	 
	 	 
	Rights Agent
	 	Preamble
	 
	 	 
	Security
	 	11.4
	 
	 	 
	Special Meeting
	 	23.2
	 
	 	 
	Special Meeting Notice
	 	23.2
	 
	 	 
	Special Meeting  Period
	 	23.2
	 
	 	 
	Spread
	 	11.1.3
	 
	 	 
	Substitution Period
	 	11.1.3
	 
	 	 
	Summary of Rights
	 	3.2
	 
	 	 
	Trading Day
	 	11.4






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     Section 2. Appointment of Rights Agent. The Company hereby appoints the Rights Agent
to act as rights 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, upon ten (10) days prior written notice to
the Rights Agent. The Rights Agent shall have no duty to supervise, and shall in no event be
liable for, the acts or omissions of any such co-Rights Agent. In the event the Company appoints
one or more co-Rights Agents, the respective duties of the Rights Agent and any co-Rights Agent
shall be as the Company shall determine.



     Section 3. Issuance of Right Certificates.



          3.1. Rights Evidenced by Share Certificates. Until the close of business on the
earlier of (i) the tenth day after the Shares Acquisition Date or (ii) the tenth Business Day after
the date of the commencement of, or first public announcement of the intent of any Person (other
than an Exempt Person) to commence, a tender or exchange offer the consummation of which would
result in any Person (other than an Exempt Person) becoming the Beneficial Owner of Common Shares
aggregating fifteen percent (15%) or more of the then outstanding Common Shares of the Company (the
earlier of (i) and (ii) being herein referred to as the “Distribution Date”), (x) the Rights
(unless earlier expired, redeemed or terminated) will be evidenced (subject to the provisions of
Section 3.2) by the certificates for Common Shares registered in the names of the holders thereof
(which certificates for Common Shares shall also be deemed to be Right Certificates) and not by
separate certificates, and (y) the Rights (and the right to receive certificates therefor) will be
transferable only in connection with the transfer of the underlying Common Shares. Notwithstanding
the preceding sentence, prior to the occurrence of a Distribution Date specified as a result of an
event described in clause (ii) (or such later Distribution Date as the Board of Directors may
select pursuant to this sentence), the Board of Directors may postpone, one or more times, the
Distribution Date which would occur as a result of an event described in clause (ii) beyond the
date set forth in such clause (ii). The Company shall promptly notify the Rights Agent of any such
postponement. As soon as practicable after the Distribution Date, the Company will prepare and
execute, the Rights Agent will countersign and the Company (or, if requested and provided with all
necessary information, the Rights Agent) will send, by first-class, insured, postage-prepaid mail,
to each record holder of Common Shares as of the close of business on the Distribution Date (other
than any Acquiring Person or any Associate or Affiliate of an Acquiring Person), at the address of
such holder shown on the records of the Company, one or more certificates for Rights, in
substantially the form of Exhibit B hereto (a “Right Certificate”), evidencing one Right
(subject to adjustment as provided herein) for each Common Share so held. As of the Distribution
Date, the Rights will be evidenced solely by such Right Certificates. The Company shall notify the
Rights Agent in writing upon the occurrence of the Distribution Date and, if such notification is
given orally, the Company shall promptly confirm same in writing to the Rights Agent.




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          3.2. Summary of Rights. Notwithstanding the amendment and restatement of the
Prior Agreement in its entirety by this Agreement, the summary of rights attached to the Prior
Agreement as exhibit C thereto shall remain extant as the Summary of Rights referenced herein (the
“Summary of Rights”). With respect to certificates for Common Shares outstanding as of the close
of business of the Record Date, until the Distribution Date (or the earlier Expiration Date), the
Rights will be evidenced by such certificates for Common Shares registered in the names of the
holders thereof together with a copy of the Summary of Rights. Until the Distribution Date (or the
earlier Expiration Date), the surrender for transfer of any certificate for Common Shares
outstanding at the close of business on the date hereof, with or without a copy of the Summary of
Rights, shall also constitute the transfer of the Rights associated with the Common Shares
represented thereby.




          3.3. New Certificates After the Date Hereof. Certificates for Common Shares which
become outstanding (whether upon issuance out of authorized but unissued Common Shares, disposition
out of treasury or transfer or exchange of outstanding Common Shares) after the date hereof but
prior to the earliest of the Distribution Date or the Expiration Date, shall have impressed,
printed, stamped, written or otherwise affixed onto them a legend in substantially the following
form:





This certificate also evidences and entitles the holder hereof to certain rights
as set forth in a Rights Agreement between Asyst Technologies, Inc. (the
“Company”) and BankBoston, N.A. as Rights Agent (the “Rights Agent”), dated as of
June 25, 1998, 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 executive offices of the Company. 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 Company will
mail to the holder of this certificate a copy of the Rights Agreement without
charge after receipt of a written request therefor. As described in the Rights
Agreement, Rights issued to any Person who becomes an Acquiring Person or an
Affiliate or Associate thereof (as defined in the Rights Agreement) and certain
related persons, whether currently held by or on behalf of such Person or by any
subsequent holder, shall become null and void.


With respect to such certificates containing the foregoing legend, until the Distribution Date (or
the earlier Expiration Date), the Rights associated with the Common Shares represented by such
certificates shall be evidenced by such certificates alone, and the surrender for transfer of any
such certificates, except as otherwise provided herein, shall also constitute the transfer of the
Rights associated with the Common Shares represented thereby. In the event that the Company
purchases or acquires any Common Shares after the date hereof but prior to the Distribution Date,
any Rights associated with such Common Shares shall be deemed canceled and retired so that the
Company shall not be entitled to exercise any Rights associated with the Common Shares which are no
longer outstanding.




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     Notwithstanding this Section 3.3, the omission of a legend shall not affect the enforceability
of any part of this Agreement or the rights of any holder of the Rights.



     Section 4. Form of Right Certificates. The Right Certificates (and the forms of
election to purchase shares, certification and assignment to be printed on the reverse thereof)
shall be substantially the same as 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 trading system on which the Rights
may from time to time be listed or quoted, or to conform to usage. Subject to the terms and
conditions hereof, the Right Certificates shall entitle the holders thereof to purchase such number
of one one-thousandths of a Preferred Share as shall be set forth therein at the price per one
one-thousandth of a Preferred Share set forth therein at the Purchase Price, but the number of such
one one-thousandths of a Preferred Share and the Purchase Price shall be subject to adjustment as
provided herein.



     Section 5. Countersignature and Registration. The Right Certificates shall be executed
on behalf of the Company by its Chairman of the Board of Directors, the Chief Executive Officer,
the President or any Vice President (regardless of designation), either manually or by facsimile
signature, which shall be attested by the Secretary or any Assistant Secretary of the Company or by
such officers as the Board of Directors shall designate, either manually or by facsimile signature.
The Right Certificates shall be countersigned, either manually or by facsimile signature, by an
authorized signatory of the Rights Agent, but it shall not be necessary for the same signatory to
countersign all of the Right Certificates hereunder. No Right Certificate shall be valid for any
purpose unless so countersigned. In case any officer of the Company who shall have signed any of
the Right Certificates shall cease to be such officer of the Company before countersignature by the
Rights Agent and issuance and delivery by the Company, such Right 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 Right Certificates had not ceased to be such
officer of the Company; and any Right Certificate may be signed on behalf of the Company by any
person who, at the actual date of the execution of such Right Certificate, shall be a proper
officer of the Company to sign such Right Certificate, although at the date of the execution of
this Agreement any such person was not such an officer.



     Following the Distribution Date, the Rights Agent will keep or cause to be kept, at its office
designated for such purpose, books for registration and transfer of the Right Certificates issued
hereunder. Such books shall show the names and addresses of the respective holders of the Right
Certificates, the number of Rights evidenced on its face by each of the Right Certificates, the
certificate number of each of the Right Certificates and the date of each of the Right
Certificates.



     Section 6. Transfer, Split Up, Combination and Exchange of Right Certificates; Mutilated,
Destroyed, Lost or Stolen Right Certificates. Subject to the provisions of



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Section 11.1.2 and Section 14, 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 Right Certificate or
Right Certificates (other than Right Certificates representing Rights that have become null and
void pursuant to Section 11.1.2 or that have been exchanged pursuant to Section 27) may be
transferred, split up or combined or exchanged for another Right Certificate or Right Certificates,
entitling the registered holder to purchase a like number of one one-thousandths of a Preferred
Share as the Right Certificate or Right Certificates surrendered then entitled such holder to
purchase. Any registered holder desiring to transfer, split up or combine or exchange any Right
Certificate shall make such request in writing delivered to the Rights Agent, and shall surrender,
together with any required form of assignment and certificate duly completed, the Right Certificate
or Right Certificates to be transferred, split up or combined or exchanged at the office of the
Rights Agent designated for such purpose. The Right Certificates are transferable only on the
registry books of the Rights Agent. Neither the Rights Agent nor the Company shall be obligated to
take any action whatsoever with respect to the transfer of any such surrendered Right Certificate
or Right Certificates until the registered holder shall have completed and signed the certificate
contained in the form of assignment on the reverse side of such Right Certificate or Right
Certificates 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 shall
reasonably request. Thereupon the Rights Agent shall countersign and deliver to the person
entitled thereto a Right Certificate or Right Certificates, as the case may be, as so requested.
The Company may require payment from the holders of Right Certificates of a sum sufficient to cover
any tax or governmental charge that may be imposed in connection with any transfer, split up or
combination or exchange of such Right Certificates. The Rights Agent shall have no duty or
obligation to take any action under any Section of this Agreement which requires the payment by a
holder of Rights of applicable taxes and governmental charges unless and until it is satisfied that
all such taxes and/or governmental charges have been paid.



     Subject to the provisions of Section 11.1.2, at any time after the Distribution Date and prior
to the Expiration Date, upon receipt by the Company and the Rights Agent of evidence reasonably
satisfactory to them of the loss, theft, destruction or mutilation of a Right Certificate, and, in
case of loss, theft or destruction, of indemnity or security reasonably satisfactory to them, and,
at the Company’s or the Rights Agent’s request, 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 Right Certificate if mutilated, the Company will make and deliver a new Right
Certificate of like tenor to the Rights Agent for countersignature and delivery to the registered
owner in lieu of the Right Certificate so lost, stolen, destroyed or mutilated.



     Section 7. Exercise of Rights; Purchase Price; Expiration Date of Rights.



          7.1. Exercise of Rights. Except as provided herein, the Rights shall become
exercisable on the Distribution Date, and thereafter the registered holder of any Right Certificate
may, subject to Section 11.1.2 and except as otherwise provided herein, exercise the Rights
evidenced thereby in whole or in part upon surrender of the Right




 - 14 - 









 




Certificate, with the form of election to purchase and certification on the reverse side
thereof duly and properly executed, to the Rights Agent at the office of the Rights Agent or agency
of the Rights Agent designated for such purpose, together with payment of the aggregate Purchase
Price for the total number of one one-thousandths of a Preferred Share (or other securities, cash
or other assets) as to which the Rights are exercised, at or prior to the time (the “Expiration
Date”) that is the earliest of (i) the close of business Eastern Daylight Time on July 8, 2009 (the
“Final Expiration Date”), (ii) the time at which the Rights are redeemed as provided in Section 23
(the “Redemption Date”), (iii) the closing of any merger or other acquisition transaction involving
the Company pursuant to an agreement of the type described in Section 13.3 at which time the Rights
are deemed terminated, or (iv) the time at which the Rights are exchanged as provided in
Section 27.




          7.2.
Purchase. The purchase price (the “Purchase Price”) for each one one-thousandth of a Preferred Share
pursuant to the exercise of a Right shall be initially $12.50, shall be subject to adjustment from
time to time as provided in Sections 11, 13 and 26 and shall be payable in lawful money of the
United States of America in accordance with Section 7.3.




          7.3. Payment Procedures. Upon receipt of a Right Certificate representing exercisable
Rights, with the form of election to purchase and certification properly completed and duly
executed, accompanied by payment of the aggregate Purchase Price for the total number of one
one-thousandths of a Preferred Share to be purchased and an amount equal to any applicable tax or
charge required to be paid by the holder of such Right Certificate in accordance with Section 9, in
cash or by certified or cashier’s check or money order payable to the order of the Company, the
Rights Agent shall thereupon promptly (i)(A) requisition from any transfer agent of the Preferred
Shares (or make available, if the Rights Agent is the transfer agent) certificates for the number
of Preferred Shares 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 Preferred Shares issuable upon exercise of the Rights hereunder with a depository
agent, requisition from the depositary agent depositary receipts representing interests in such
number of one one-thousandths of a Preferred Share as are to be purchased (in which case
certificates for the Preferred Shares represented by such receipts shall be deposited by the
transfer agent with the depositary agent) and the Company hereby directs the depositary agent to
comply with all such requests, (ii) when appropriate, requisition from the Company the amount of
cash to be paid in lieu of the issuance of fractional shares in accordance with Section 14 or
otherwise in accordance with Section 11.1.3, (iii) promptly after receipt of such certificates or
depositary receipts, cause the same to be delivered to or upon the order of the registered holder
of such Right Certificate, registered in such name or names as may be designated by such holder and
(iv) when appropriate, after receipt, promptly deliver such cash to or upon the order of the
registered holder of such Right Certificate. In the event that the Company is obligated to issue
other securities of the Company, pay cash and/or distribute other property pursuant to
Section 11.1.3, 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
necessary to comply with this Agreement.




 - 15 - 









 





          7.4. Partial Exercise. In case the registered holder of any Right Certificate shall
exercise less than all the Rights evidenced thereby, a new Right Certificate evidencing Rights
equivalent to the Rights remaining unexercised shall be issued by the Rights Agent and delivered to
the registered holder of such Right Certificate or to his duly authorized assigns, subject to the
provisions of Section 14.




          7.5. Full Information Concerning Ownership. 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 of Rights upon the occurrence of any purported exercise
as set forth in this Section 7 unless the certificate contained in the form of election to purchase
set forth on the reverse side of the Right Certificate surrendered for such exercise shall have
been duly and properly completed and signed by the registered holder thereof and the Company shall
have been provided with such additional evidence of the identity of the Beneficial Owner (or former
Beneficial Owner) or Affiliates or Associates thereof as the Company or the Rights Agent shall
reasonably request.




     Section 8. Cancellation and Destruction of Right Certificates. All Right Certificates
surrendered for the purpose of exercise, transfer, split up, combination or exchange shall, if
surrendered to the Company or to any of its agents, be delivered to the Rights Agent for
cancellation or in canceled form, or, if surrendered to the Rights Agent, shall be canceled by it,
and no Right Certificates shall be issued in lieu thereof except as expressly permitted by any of
the provisions 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 Right Certificate
purchased or acquired by the Company otherwise than upon the exercise thereof. Upon written
request of the Company (and at the expense of the Company), the Rights Agent shall provide to the
Company or its designee copies of such electronic records or physical records relating to rights
certificates cancelled or destroyed by the Rights Agent.



     Section 9. Reservation and Availability of Capital Stock. The Company covenants and
agrees that from and after the Distribution Date it will cause to be reserved and kept available
out of its authorized and unissued Preferred Shares (and, following the occurrence of a Trigger
Event, out of its authorized and unissued Common Shares or other securities or out of its shares
held in its treasury) the number of Preferred Shares (and, following the occurrence of a Trigger
Event, Common Shares and/or other securities) that will be sufficient to permit the exercise in
full of all outstanding Rights.



     So long as the Preferred Shares (and, following the occurrence of a Trigger Event, Common
Shares and/or other securities) issuable upon the exercise of Rights may be listed on the NASDAQ
Global Market (“NASDAQ GM”) or any other national securities exchange or traded in the
over-the-counter market and quoted on the National Association of Securities Dealers, Inc.
Automated Quotation System (“NASDAQ”), the Company shall use its best efforts to cause, from and
after such time as the Rights become exercisable, all shares reserved for such issuance to be
listed or admitted to trading on the NASDAQ GM or such other exchange or quoted on the NASDAQ upon
official notice of issuance upon




 - 16 - 









 





such exercise.



     The Company covenants and agrees that it will take all such action as may be necessary to
ensure that all Preferred Shares (and, following the occurrence of a Trigger Event, Common Shares
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 shares.



     From and after such time as the Rights become exercisable, the Company shall use its best
efforts, if then necessary to permit the issuance of Preferred Shares upon the exercise of Rights,
to register and qualify such Preferred Shares under the Securities Act and any applicable state
securities or “Blue Sky” laws (to the extent exemptions therefrom are not available), cause such
registration statement and qualifications to become effective as soon as possible after such filing
and keep such registration and qualifications effective until the earlier of the date as of which
the Rights are no longer exercisable for such securities and the Expiration Date. The Company may
temporarily suspend, for a period of time not to exceed one hundred twenty (120) days, the
exercisability of the Rights in order to prepare and file a registration statement under the
Securities Act and permit it to become effective. Upon 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.
Notwithstanding any provision of this Agreement to the contrary, the Rights shall not be
exercisable in any jurisdiction unless the requisite qualification in such jurisdiction shall have
been obtained and until a registration statement under the Securities Act (if required) shall have
been declared effective, unless an exemption therefrom is available.



     The Company further covenants and agrees that it will pay when due and payable any and all
taxes and governmental charges which may be payable in respect of the issuance or delivery of the
Right Certificates or of any Preferred Shares (or Common Shares and/or other securities, as the
case may be) upon the exercise of Rights. The Company shall not, however, be required to pay any
tax or charge which may be payable in respect of any transfer or delivery of Right Certificates to
a person other than, or the issuance or delivery of certificates for the Preferred Shares (or
Common Shares and/or other securities, as the case may be) in a name other than that of, the
registered holder of the Right Certificate evidencing Rights surrendered for exercise or to issue
or deliver any certificates for Preferred Shares (or Common Shares 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 any such tax or charge shall have been paid (any such tax or charge being payable by the
holder of such Right Certificate at the time of surrender) or until it has been established to the
Company’s satisfaction that no such tax or charge is due.



     Section 10. Preferred Shares Record Date. Each Person in whose name any certificate
for Preferred Shares (or Common Shares 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 Shares (or Common Shares and/or other securities, as the case may be) represented thereby
on, and such certificate shall be dated, the date upon



 - 17 - 









 







which the Right Certificate evidencing such Rights was duly surrendered and payment of the
Purchase Price (and any applicable taxes or governmental charges) was duly made; provided,
however , that if the date of such surrender and payment is a date upon which the Preferred
Shares (or Common Shares 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 dated, the next succeeding Business Day on which
the Preferred Shares (or Common Shares 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
Right Certificate shall not be entitled to any rights of a holder of Preferred Shares for which the
Rights shall be exercisable, including, without limitation, the right to vote or to receive
dividends or other distributions, 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 of Shares, Kind of Shares or Number of
Rights. The Purchase Price, the number of Preferred Shares or other securities or property
purchasable upon exercise of each Right and the number of Rights outstanding are subject to
adjustment from time to time as provided in this Section 11.



          11.1. Post-Execution Events.




               11.1.1. Corporate Dividends, Reclassifications, Etc. In the event the Company shall at
any time after the date of this Agreement (A) declare and pay a dividend on the Preferred Shares
payable in Preferred Shares, (B) subdivide the outstanding Preferred Shares, (C) combine the
outstanding Preferred Shares into a smaller number of Preferred Shares or (D) issue any shares of
its capital stock in a reclassification of the Preferred Shares (including any such
reclassification in connection with a consolidation or merger in which the Company is the
continuing or surviving corporation), except as otherwise provided in this Section 11.1, 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 capital
stock issuable on such date, shall be proportionately adjusted so that the holder of any Right
exercised after such time shall be entitled to receive the aggregate number and kind of shares of
capital stock which, if such Right had been exercised immediately prior to such date and at a time
when the Preferred Shares transfer books of the Company were open, he 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 Section 11.1.1
and Section 11.1.2, the adjustment provided for in this Section 11.1.1 shall be in addition to, and
shall be made prior to, the adjustment required pursuant to, Section 11.1.2.



               11.1.2. Acquiring Person Events; Triggering Events. Subject to Sections 23.1 and 27,
in the event that a Trigger Event occurs, then, from and after the first occurrence of such event,
each holder of a Right, except as provided below, shall thereafter have a right to receive, upon
exercise thereof at a price per Right equal to the then current Purchase Price multiplied by the
number of one one-thousandths of a Preferred Share for



 - 18 - 









 







which a Right is then exercisable (without giving effect to this Section 11.1.2), in
accordance with the terms of this Agreement and in lieu of Preferred Shares, such number of Common
Shares as shall equal the result obtained by (x) multiplying the then current Purchase Price by the
then number of one one-thousandths of a Preferred Share for which a Right is then exercisable
(without giving effect to this Section 11.1.2) and (y) dividing that product by fifty percent (50%)
of the current per share market price of the Common Shares (determined pursuant to Section 11.4) on
the first of the date of the occurrence of, or the date of the first public announcement of, a
Trigger Event (the “Adjustment Shares”); provided that the Purchase Price and the number
of Adjustment Shares shall thereafter be subject to further adjustment as appropriate in accordance
with Section 11.6. Notwithstanding the foregoing, upon the occurrence of a Trigger Event, any
Rights that are or were acquired or Beneficially Owned by (1) any Acquiring Person or any Associate
or Affiliate thereof, (2) a transferee of any Acquiring Person (or of any such Associate or
Affiliate) who becomes a transferee after the Acquiring Person becomes such, or (3) a transferee of
any Acquiring Person (or of any such Associate or Affiliate) who becomes a transferee prior to or
concurrently with the Acquiring Person becoming such and receives such Rights pursuant to either
(A) a transfer (whether or not for consideration) from the Acquiring Person to holders of equity
interests in such Acquiring Person or to any Person with whom the Acquiring Person has any
continuing agreement, arrangement or understanding regarding the transferred Rights or (B) a
transfer which the Board of Directors has determined is part of a plan, arrangement or
understanding which has as a primary purpose or effect avoidance of this Section 11.1.2, and
subsequent transferees, shall become null and void without any further action, and any holder
(whether or not such holder is an Acquiring Person or an Associate or Affiliate of an Acquiring
Person) of such Rights shall thereafter have no right to exercise such Rights under any provision
of this Agreement or otherwise. From and after the Trigger Event, no Right Certificate shall be
issued pursuant to Section 3 or Section 6 that represents Rights that are or have become null and
void pursuant to the provisions of this paragraph, and any Right Certificate delivered to the
Rights Agent that represents Rights that are or have become null and void pursuant to the
provisions of this paragraph shall be canceled.



     The Company shall notify the Rights Agent when this Section 11.1.2 applies and shall use all
reasonable efforts to ensure that the provisions of this Section 11.1.2 are complied with, but
neither the Company nor the Rights Agent shall have any liability to any holder of Right
Certificates or other Person as a result of the Company’s failure to make any determinations with
respect to any Acquiring Person or its Affiliates, Associates or transferees hereunder.



     From and after the occurrence of an event specified in Section 13.1, any Rights that
theretofore have not been exercised pursuant to this Section 11.1.2 shall thereafter be exercisable
only in accordance with Section 13 and not pursuant to this Section 11.1.2.



               11.1.3. Insufficient Shares. The Company may at its option substitute for a Common
Share issuable upon the exercise of Rights in accordance with the foregoing Section 11.1.2 a number
of Preferred Shares or fraction thereof such that the current per share market price of one
Preferred Share multiplied by such number or fraction is equal to



 - 19 - 









 







the current per share market price of one Common Share. In the event that upon the occurrence
of a Trigger Event there shall not be sufficient Common Shares authorized but unissued, or held by
the Company as treasury shares, to permit the exercise in full of the Rights in accordance with the
foregoing Section 11.1.2, the Company shall take all such action as may be necessary to authorize
additional Common Shares for issuance upon exercise of the Rights, provided,
however, that if the Company determines that it is unable to cause the authorization of a
sufficient number of additional Common Shares, then, in the event the Rights become exercisable,
the Company, with respect to each Right and to the extent necessary and permitted by applicable law
and any agreements or instruments in effect on the date hereof to which it is a party, shall:
(A) determine the excess of (1) the value of the Adjustment Shares issuable upon the exercise of a
Right (the “Current Value”), over (2) the Purchase Price (such excess, the “Spread”) and (B) with
respect to each Right (other than Rights which have become null and void pursuant to
Section 11.1.2), make adequate provision to substitute for the Adjustment Shares, upon payment of
the applicable Purchase Price, (1) cash, (2) a reduction in the Purchase Price, (3) Preferred
Shares or other equity securities of the Company (including, without limitation, shares, or
fractions of shares, of preferred stock which, by virtue of having dividend and liquidation rights
substantially comparable to those of the Common Shares, the Board of Directors has deemed in good
faith to have substantially the same value as Common Shares) (each such share of preferred stock or
fractions of shares of preferred stock constituting a “common stock equivalent”), (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, where such aggregate value has been determined by the
Board of Directors based upon the advice of a nationally recognized investment banking firm
selected in good faith 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
thirty (30) days following the occurrence of a Trigger Event, then the Company shall be obligated
to deliver, to the extent necessary and permitted by applicable law and any agreements or
instruments in effect on the date hereof to which it is a party, upon the surrender for exercise of
a Right and without requiring payment of the Purchase Price, Common Shares (to the extent
available) and then, if necessary, such number or fractions of Preferred Shares (to the extent
available) and then, if necessary, cash, which shares and/or cash have an aggregate value equal to
the Spread. If the Board of Directors shall determine in good faith that it is unlikely that
sufficient additional Common Shares could be authorized for issuance upon exercise in full of the
Rights, the thirty (30) day period set forth above may be extended and re-extended to the extent
necessary, but not more than ninety (90) days following the occurrence of a Trigger Event, in order
that the Company may seek shareholder approval for the authorization of such additional shares
(such period as may be extended, the “Substitution Period”). To the extent that the Company
determines that some action need be taken pursuant to the second and/or third sentences of this
Section 11.1.3, the Company (x) shall provide that such action shall apply uniformly to all
outstanding Rights, and (y) may suspend the exercisability of the Rights until the expiration of
the Substitution Period in order to seek any 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



 - 20 - 









 







been temporarily suspended as well as a public announcement at such time as the suspension is
no longer in effect and the Company shall promptly provide the Rights Agent copies of such
announcements. For purposes of this Section 11.1.3, the value of a Common Share shall be the
current per share market price (as determined pursuant to Section 11.4) on the date of the
occurrence of a Trigger Event and the value of any “common stock equivalent” shall be deemed to
have the same value as the Common Shares on such date. The Board of Directors may, but shall not be
required to, establish procedures to allocate the right to receive Common Shares upon the exercise
of the Rights among holders of Rights pursuant to this Section 11.1.3.



          11.2. Dilutive Rights Offering. In case the Company shall fix a record date for the
issuance of rights, options or warrants to all holders of Preferred Shares entitling them (for a
period expiring within forty-five (45) calendar days after such record date) to subscribe for or
purchase Preferred Shares (or securities having the same rights, privileges and preferences as the
Preferred Shares (“equivalent preferred stock”)) or securities convertible into Preferred Shares or
equivalent preferred stock at a price per Preferred Share or per share of equivalent preferred
stock (or having a conversion or exercise price per share, if a security convertible into or
exercisable for Preferred Shares or equivalent preferred stock) less than the current per share
market price of the Preferred Shares (as determined pursuant to Section 11.4) 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 Preferred Shares and shares of equivalent preferred stock outstanding
on such record date plus the number of Preferred Shares and shares of equivalent preferred stock
which the aggregate offering price of the total number of Preferred Shares and/or shares of
equivalent preferred stock to be offered (and/or the aggregate initial conversion price of the
convertible securities so to be offered) would purchase at such current per share market price and
the denominator of which shall be the number of Preferred Shares and shares of equivalent preferred
stock outstanding on such record date plus the number of additional Preferred Shares and/or shares
of 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 in a consideration part or all of which shall be in a form other than cash, the value
of such consideration shall be 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 binding on
the Rights Agent and the holders of the Rights. Preferred Shares and shares of equivalent preferred
stock owned by or held for the account of the Company or any Subsidiary 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.




          11.3. Distributions. In case the Company shall fix a record date for the making of a
distribution to all holders of the Preferred Shares (including any such distribution made in
connection with a consolidation or merger in which the Company is the continuing or surviving
corporation) of evidences of indebtedness, cash, securities or assets (other than a




 - 21 - 









 




regular periodic cash dividend or a dividend payable in Preferred Shares (which dividend, for
purposes of this Agreement, shall be subject to the provisions of Section 11.1.1)) or convertible
securities, or subscription rights or warrants (excluding those referred to in Section 11.2), 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 per share market price of the Preferred Shares (as determined pursuant
to Section 11.4) on such record date, less the fair market value (as determined in good faith by
the Board of Directors, whose determination shall be described in a statement filed with the Rights
Agent) of the portion of the cash, assets, securities or evidences of indebtedness so to be
distributed or of such subscription rights or warrants applicable to one Preferred Share and the
denominator of which shall be such current per share market price of the Preferred Shares (as
determined pursuant to Section 11.4). 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 again be adjusted to be the Purchase Price which would then be in effect if such record date
had not been fixed.




          11.4. Current Per Share Market Value.




               11.4.1. General. For the purpose of any computation hereunder, the “current per share
market price” of any security (a “Security” for the purpose of this Section 11.4.1) on any date
shall be deemed to be the average of the daily closing prices per share of such Security for the
thirty (30) consecutive Trading Days (as such term is hereinafter defined) immediately prior to but
not including such date; provided, however, that in the event that the current per
share market price of the Security is determined during any period following the announcement by
the issuer of such Security of (i) a dividend or distribution on such Security payable in shares of
such Security or securities convertible into such shares or (ii) any subdivision, combination or
reclassification of such Security, and prior to the expiration of thirty (30) Trading Days after
but not including the ex-dividend date for such dividend or distribution, or the record date for
such subdivision, combination or reclassification, then, and in each such case, the “current per
share market price” shall be appropriately adjusted to reflect the current market price per share
equivalent of such Security. 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 NASDAQ GM or, if the
Security is not listed or admitted to trading on the NASDAQ GM, as reported in the principal
consolidated transaction reporting system with respect to securities listed on the principal
national securities exchange on which the Security is listed or admitted to trading or, if the
Security is 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 in the
over-the-counter market, as reported by NASDAQ or such other system then in use, or, if on any such
date the Security is 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 Security selected by the
Board of Directors. If on any such date no such market maker is making a market in the Security,
the fair value of



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the Security 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 Security is listed or admitted to trading is open for the transaction of business or, if
the Security is not listed or admitted to trading on any national securities exchange, a Business
Day. If the Security is not publicly held or not so listed or traded, or if on any such date the
Security is not so quoted and no such market maker is making a market in the Security, “current per
share market price” shall mean the fair value per share as determined in good faith by the Board of
Directors or, if at the time of such determination there is an Acquiring Person, by a nationally
recognized investment banking firm selected by the Board of Directors, which shall have the duty to
make such determination in a reasonable and objective manner, whose determination shall be
described in a statement filed with the Rights Agent and shall be conclusive for all purposes.



               11.4.2. Preferred Shares. Notwithstanding Section 11.4.1, for the purpose of any
computation hereunder, the “current per share market price” of the Preferred Shares shall be
determined in the same manner as set forth above in Section 11.4.1 (other than the last sentence
thereof). If the current per share market price of the Preferred Shares cannot be determined in the
manner described in Section 11.4.1, the “current per share market price” of the Preferred Shares
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 and recapitalizations with respect to the
Common Shares occurring after the date of this Agreement) multiplied by the current per share
market price of the Common Shares (as determined pursuant to Section 11.4.1). If neither the Common
Shares nor the Preferred Shares are publicly held or so listed or traded, or if on any such date
neither the Common Shares nor the Preferred Shares are so quoted and no such market maker is making
a market in either the Common Shares or the Preferred Shares, “current per share market price” of
the Preferred Shares shall mean the fair value per share as determined in good faith by the Board
of Directors, or, if at the time of such determination there is an Acquiring Person, by a
nationally recognized investment banking firm selected by the Board of Directors, which shall have
the duty to make such determination in a reasonable and objective manner, which determination shall
be described in a statement filed with the Rights Agent and shall be conclusive for all purposes.
For purposes of this Agreement, the “current per share market price” of one one-thousandth of a
Preferred Share shall be equal to the “current per share market price” of one Preferred Share
divided by 1,000.



          11.5. Insignificant Changes. No adjustment in the Purchase Price shall be required
unless such adjustment would require an increase or decrease of at least one percent (1%) in the
Purchase Price. Any adjustments which by reason of this Section 11.5 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 one-hundred thousandth of
a Preferred Share or the nearest one-thousandth of a Common Share or other share or security, as
the case may be.




          11.6. Shares Other Than Preferred Shares. If as a result of an adjustment made
pursuant to Section 11.1, the holder of any Right thereafter exercised shall become entitled




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to receive any shares of capital stock of the Company other than Preferred Shares, thereafter
the number of such other shares so receivable upon exercise of any Right 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 Shares contained in Sections 11.1, 11.2, 11.3, 11.5, 11.8,
11.9 and 11.13, and the provisions of Sections 7, 9, 10, 13 and 14 with respect to the Preferred
Shares shall apply on like terms to any such other shares.




          11.7. Rights Issued Prior to Adjustment. 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 one one-thousandths of a Preferred Share
purchasable from time to time hereunder upon exercise of the Rights, all subject to further
adjustment as provided herein.




          11.8. Effect of Adjustments. Unless the Company shall have exercised its election as
provided in Section 11.9, upon each adjustment of the Purchase Price as a result of the
calculations made in Sections 11.2 and 11.3, 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 one one-thousandths of a Preferred Share (calculated to the nearest one-thousand
thousandth of a Preferred Share) obtained by (i) multiplying (x) the number of one one-thousandths
of a Preferred 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.




          11.9. Adjustment in Number of Rights. The Company may elect on or after the date of
any adjustment of the Purchase Price to adjust the number of Rights, in substitution for any
adjustment in the number of one one-thousandths of a Preferred Share issuable upon the exercise of
a Right. Each of the Rights outstanding after such adjustment of the number of Rights shall be
exercisable for the number of one one-thousandths of a Preferred Share 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
one-thousandth) 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 (with prompt written notice thereof to the
Rights Agent) 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 Right
Certificates have been issued, shall be at least ten (10) days later than the date of the public
announcement. If Right Certificates have been issued, upon each adjustment of the number of Rights
pursuant to this Section 11.9, the Company may, as promptly as practicable, cause to be distributed
to holders of record of Right Certificates on such record date Right Certificates evidencing,
subject to Section 14, 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 Right Certificates held by such holders prior to the
date of adjustment, and upon surrender




 - 24 - 









 




thereof, if required by the Company, new Right Certificates evidencing all the Rights to which
such holders shall be entitled after such adjustment. Right 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 Right Certificates on the record date specified in the public announcement.




          11.10. Right Certificates Unchanged. Irrespective of any adjustment or change in the
Purchase Price or the number of one one-thousandths of a Preferred Share issuable upon the exercise
of the Rights, the Right Certificates theretofore and thereafter issued may continue to express the
Purchase Price per share and the number of one one-thousandths of a Preferred Share which were
expressed in the initial Right Certificates issued hereunder.




          11.11. [Intentionally Omitted]




          11.12. Deferred Issuance. 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 (with notice thereof to the Rights Agent) until the
occurrence of such event the issuance to the holder of any Right exercised after such record date
of that number of Preferred Shares and shares of other capital stock or securities of the Company,
if any, issuable upon such exercise over and above the Preferred Shares and shares of other capital
stock or other securities, assets or cash 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 bill or other appropriate
instrument evidencing such holder’s right to receive such additional shares upon the occurrence of
the event requiring such adjustment.




          11.13. Reduction in Purchase Price. Notwithstanding anything in this Section 11 to the
contrary, the Company shall be entitled to make such reductions in the Purchase Price, in addition
to those adjustments expressly required by this Section 11, as and to the extent that it in its
sole discretion shall determine to be advisable in order that any consolidation or subdivision of
the Preferred Shares, issuance wholly for cash of any of the Preferred Shares at less than the
current market price, issuance wholly for cash of Preferred Shares or securities which by their
terms are convertible into or exchangeable for Preferred Shares, dividends on Preferred Shares
payable in Preferred Shares or issuance of rights, options or warrants referred to hereinabove in
this Section 11, hereafter made by the Company to holders of its Preferred Shares shall not be
taxable to such shareholders.




          11.14. Company Not to Diminish Benefits of Rights. The Company covenants and agrees
that after the earlier of the Shares Acquisition Date or Distribution Date it will not, except as
permitted by Section 23, Section 26 or Section 27, 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
substantially diminish or otherwise eliminate the benefits intended to be afforded by the Rights.




          11.15. Adjustment of Rights Associated with Common Shares. Notwithstanding




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anything contained in this Agreement to the contrary, in the event that the Company shall at
any time after the date hereof and prior to the Distribution Date (i) declare or pay any dividend
on the outstanding Common Shares payable in Common Shares, (ii) effect a subdivision or
consolidation of the outstanding Common Shares (by reclassification or otherwise than by the
payment of dividends payable in Common Shares), or (iii) combine the outstanding Common Shares into
a greater or lesser number of Common Shares, then in any such case, the number of Rights associated
with each Common Share then outstanding, or issued or delivered thereafter but prior to the
Distribution Date or in accordance with Section 22 shall be proportionately adjusted so that the
number of Rights thereafter associated with each Common Share following any such event shall equal
the result obtained by multiplying the number of Rights associated with each Common Share
immediately prior to such event by a fraction, the numerator of which shall be the total number of
Common Shares outstanding immediately prior to the occurrence of the event and the denominator of
which shall be the total number of Common Shares outstanding immediately following the occurrence
of such event. The adjustments provided for in this Section 11.15 shall be made successively
whenever such a dividend is declared or paid or such a subdivision, combination or consolidation is
effected.




     Section 12. Certificate of Adjusted Purchase Price or Number of Shares. Whenever an
adjustment is made or any event affecting the Rights or their exercisability (including without
limitation an event which causes Rights to become null and void) occurs as provided in Sections 11
or 13, the Company shall (a) promptly prepare a certificate setting forth such adjustment, and a
brief, reasonably detailed statement of the facts, computations and methodology accounting for such
adjustment, (b) promptly file with the Rights Agent and with each transfer agent for the Common
Shares or the Preferred Shares a copy of such certificate and (c) mail a brief summary thereof to
each holder of a Right Certificate in accordance with Section 25. The Rights Agent shall be fully
protected in relying on any such certificate and on any adjustment therein contained and shall not
be deemed to have knowledge of, any such adjustment or any such event unless and until it shall
have received such a certificate.



     Section 13. Consolidation, Merger or Sale or Transfer of Assets or Earning Power.



          13.1. Certain Transactions. In the event that, from and after the first occurrence of
a Trigger Event, directly or indirectly, (A) the Company shall consolidate with, or merge with and
into, any other Person and the Company shall not be the continuing or surviving corporation,
(B) any Person shall consolidate with the Company, or merge with and into the Company and the
Company shall be the continuing or surviving corporation of such merger and, in connection with
such merger, all or part of the Common Shares 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 (C) the Company
shall sell, exchange, mortgage or otherwise transfer (or one or more of its Subsidiaries shall
sell, exchange, mortgage or otherwise transfer), in one or more transactions, assets or earning
power aggregating fifty percent (50%) or more 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 or one or
more wholly-owned Subsidiaries of the Company in one or more transactions each of which




 - 26 - 









 




complies with Section 11.14), then, and in each such case, proper provision shall be made so
that (i) each holder of a Right (other than Rights which have become null and void pursuant to
Section 11.1.2) shall thereafter have the right to receive, upon the exercise thereof at a price
per Right equal to the then current Purchase Price multiplied by the number of one one-thousandths
of a Preferred Share for which a Right was exercisable immediately prior to the first occurrence of
a Trigger Event (as subsequently adjusted pursuant to Sections 11.1.1, 11.2, 11.3, 11.8, 11.9 and
11.12), in accordance with the terms of this Agreement and in lieu of Preferred Shares or Common
Shares, such number of validly authorized and issued, fully paid, non-assessable and freely
tradable Common Shares 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 (x) multiplying the then current Purchase Price by the number of one
one-thousandths of a Preferred Share for which a Right was exercisable immediately prior to the
first occurrence of a Trigger Event (as subsequently adjusted pursuant to Sections 11.1.1, 11.2,
11.3, 11.8, 11.9 and 11.12) and (y) dividing that product by fifty percent (50%) of the then
current per share market price of the Common Shares of such Principal Party (determined pursuant to
Section 11.4) on the date of consummation of such consolidation, merger, sale or transfer;
provided, however, that the price per Right so payable and the number of Common
Shares of such Principal Party so receivable upon exercise of a Right shall thereafter be subject
to further adjustment as appropriate in accordance with Section 11.6 to reflect any events covered
thereby occurring in respect of the Common Shares of such Principal Party after the occurrence of
such consolidation, merger, sale or transfer; (ii) such Principal Party shall thereafter be liable
for, and shall assume, by virtue of such consolidation, merger, sale or transfer, all the
obligations and duties of the Company pursuant to this Agreement; (iii) the term “Company” shall
thereafter be deemed to refer to such Principal Party; and (iv) such Principal Party shall take
such steps (including, but not limited to, the reservation of a sufficient number of its Common
Shares in accordance with Section 9) in connection with such consummation as may be necessary to
assure that the provisions hereof shall thereafter be applicable, as nearly as reasonably may be,
in relation to its Common Shares thereafter deliverable upon the exercise of the Rights;
provided that, upon the subsequent occurrence of any consolidation, merger, sale or
transfer of assets or other extraordinary transaction in respect of such Principal Party, each
holder of a Right shall thereupon be entitled to receive, upon exercise of a Right and payment of
the Purchase Price as provided in this Section 13.1, such cash, shares, rights, warrants and other
property which such holder would have been entitled to receive had such holder, at the time of such
transaction, owned the Common Shares of the Principal Party receivable upon the exercise of a Right
pursuant to this Section 13.1, and such Principal Party shall take such steps (including, but not
limited to, reservation of shares of stock) as may be necessary to permit the subsequent exercise
of the Rights in accordance with the terms hereof for such cash, shares, rights, warrants and other
property. The Company shall not consummate any such consolidation, merger, sale or transfer unless
prior thereto the Company and such Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement confirming that the requirements of this Section 13.1 and
Section 13.2 shall promptly be performed in
accordance with their terms and that such
consolidation, merger, sale or transfer of assets shall not result in a default by the Principal
Party under this Agreement as the same shall have been assumed


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 by the Principal Party pursuant to this Section 13.1 and Section 13.2 and providing that, as
soon as practicable after executing such agreement pursuant to this Section 13, the Principal
Party, at its own expense, shall:




               (1) prepare and file a registration statement under the Securities Act, if necessary, with
respect to the Rights and the securities purchasable upon exercise of the Rights on an appropriate
form, use its best efforts to cause such registration statement to become effective as soon as
practicable after such filing and use its best efforts to cause such registration statement to
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;



               (2) use its best efforts, if the Common Shares of the Principal Party shall be listed or
admitted to trading on the NASDAQ GM or on another national securities exchange, to list or admit
to trading (or continue the listing of) the Rights and the securities purchasable upon exercise of
the Rights on the NASDAQ GM or such securities exchange, or, if the Common Shares of the Principal
Party shall not be listed or admitted to trading on the NASDAQ GM or a national securities
exchange, to cause the Rights and the securities receivable upon exercise of the Rights to be
authorized for quotation on NASDAQ GM or on such other system then in use;



               (3) deliver to holders of the Rights historical financial statements for the Principal Party
which comply in all respects with the requirements for registration on Form 10 (or any successor
form) under the Exchange Act; and



               (4) obtain waivers of any rights of first refusal or preemptive rights in respect of the
Common Shares of the Principal Party subject to purchase upon exercise of outstanding Rights.



     In case the Principal Party has provision in any of its authorized securities or in its
articles or certificate of incorporation or by-laws or other instrument governing its corporate
affairs, which provision would have the effect of (i) causing such Principal Party to issue (other
than to holders of Rights pursuant to this Section 13), in connection with, or as a consequence of,
the consummation of a transaction referred to in this Section 13, Common Shares or common stock
equivalents of such Principal Party at less than the then current market price per share thereof
(determined pursuant to Section 11.4) or securities exercisable for, or convertible into, Common
Shares or common stock equivalents of such Principal Party at less than such then current market
price (other than to holders of Rights pursuant to this Section 13), or (ii) providing for any
special payment, taxes or similar provision in connection with the issuance of the Common Shares of
such Principal Party pursuant to the provision of Section 13, then, in such event, the Company
hereby agrees with each holder of Rights that it shall not consummate any such transaction unless
prior thereto the Company and such Principal Party shall have executed and delivered to the Rights
Agent a supplemental agreement providing that the provision in question of such Principal Party
shall have been canceled, waived or amended, or that the authorized securities shall be redeemed,
so that the applicable provision will have no effect in
connection with, or as a consequence of, the consummation of the proposed transaction.



 - 28 - 









 





     The Company covenants and agrees that it shall not, at any time after the Trigger Event, enter
into any transaction of the type described in clauses (A) through (C) of this Section 13.1 if
(i) at the time of or immediately after such consolidation, merger, sale, transfer or other
transaction 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, (ii) prior to, simultaneously with or immediately after such
consolidation, merger, sale, transfer or other transaction, the shareholders of the Person who
constitutes, or would constitute, the Principal Party for purposes of Section 13.2 shall have
received a distribution of Rights previously owned by such Person or any of its Affiliates or
Associates or (iii) the form or nature of organization of the Principal Party would preclude or
limit the exercisability of the Rights. The provisions of this Section 13 shall similarly apply to
successive transactions of the type described in clauses (A) through (C) of this Section 13.1.



          13.2. Principal Party. “Principal Party” shall mean:




               (i) in the case of any transaction described in (A) or (B) of the first sentence of
Section 13.1: (i) the Person that is the issuer of the securities into which the Common Shares are
converted in such merger or consolidation, or, if there is more than one such issuer, the issuer
the Common Shares of which have the greatest aggregate market value of shares outstanding, or
(ii) if no securities are so issued, (x) the Person that is the other party to the merger, if such
Person survives said merger, or, if there is more than one such Person, the Person the Common
Shares of which have the greatest aggregate market value of shares outstanding or (y) if the Person
that is the other party to the merger does not survive the merger, the Person that does survive the
merger (including the Company if it survives) or (z) the Person resulting from the consolidation;
and



               (ii) in the case of any transaction described in (C) of the first sentence in Section 13.1,
the Person that is the party receiving the greatest portion of the assets or earning power
transferred pursuant to such transaction or transactions, or, if each Person that is a party to
such transaction or transactions receives the same portion of the assets or earning power so
transferred or if the Person receiving the greatest portion of the assets or earning power cannot
be determined, whichever of such Persons is the issuer of Common Shares having the greatest
aggregate market value of shares outstanding; provided, however, that in any such
case described in the foregoing clause (i) or (ii) of this Section 13.2, if the Common Shares of
such Person are not at such time or have not been continuously over the preceding 12-month period
registered under Section 12 of the Exchange Act, then (1) if such Person is a direct or indirect
Subsidiary of another Person the Common Shares of which are and have been so registered, the term
“Principal Party” shall refer to such other Person, or (2) if such Person is a Subsidiary, directly
or indirectly, of more than one Person, the Common Shares of all of which are and have been so
registered, the term “Principal Party” shall refer to whichever of such Persons is the issuer of
Common Shares having the greatest aggregate market value of shares outstanding, or (3) if such
Person is owned, directly or indirectly, by a joint venture formed by two or



 - 29 - 









 







more Persons that are not owned, directly or indirectly, by the same Person, the rules set
forth in clauses (1) and (2) above shall apply to each of the owners having an interest in the
venture as if the Person owned by the joint venture was a Subsidiary of both or all of such joint
venturers, and the Principal Party in each such case shall bear the obligations set forth in this
Section 13 in the same ratio as its interest in such Person bears to the total of such interests.



          13.3. Approved Acquisitions. Notwithstanding anything contained herein to the
contrary, upon the consummation of any merger or other acquisition transaction of the type
described in clause (A), (B) or (C) of Section 13.1 involving the Company pursuant to a merger or
other acquisition agreement between the Company and any Person (or one or more of such Person’s
Affiliates or Associates) which agreement has been approved by the Board of Directors prior to any
Person becoming an Acquiring Person, this Agreement and the rights of holders of Rights hereunder
shall be terminated in accordance with Section 7.1.




     Section 14. Fractional Rights and Fractional Shares.



          14.1. Cash in Lieu of Fractional Rights. The Company shall not be required to issue
fractions of Rights or to distribute Right Certificates which evidence fractional Rights (except
prior to the Distribution Date in accordance with Section 11.15). In lieu of such fractional
Rights, there shall be paid to the registered holders of the Right 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 the purposes of this Section 14.1, 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 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 NASDAQ GM or, if the Rights are not listed or
admitted to trading on the NASDAQ GM, as reported in the principal consolidated transaction
reporting system with respect to securities listed 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 in the over-the-counter market, 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. If on any such date no such
market maker is making a market in the Rights, the current market value of the Rights on such date
shall be the fair value of the Rights as determined in good faith by the Board of Directors, or, if
at the time of such determination there is an Acquiring Person, by a nationally recognized
investment banking firm selected by the Board of Directors, which shall have the duty to make such
determination in a reasonable and objective manner, which determination shall be described in a
statement filed with the Rights Agent and shall be conclusive for all
purposes.




 - 30 - 









 





          14.2. Cash in Lieu of Fractional Preferred Shares. The Company shall not be required
to issue fractions of Preferred Shares (other than fractions which are integral multiples of one
one-thousandth of a Preferred Share) upon exercise or exchange of the Rights or to distribute
certificates which evidence fractional Preferred Shares (other than fractions which are integral
multiples of one one-thousandth of a Preferred Share). Interests in fractions of Preferred Shares
in integral multiples of one one-thousandth of a Preferred Share may, at the election of the
Company, be evidenced by depositary receipts, pursuant to an appropriate agreement between the
Company and a depositary selected by it; provided that such agreement shall provide
that the holders of such depositary receipts shall have all the rights, privileges and preferences
to which they are entitled as beneficial owners of the Preferred Shares represented by such
depositary receipts. In lieu of fractional Preferred Shares that are not integral multiples of one
one-thousandth of a Preferred Share, the Company shall pay to the registered holders of Right
Certificates at the time such Rights are exercised or exchanged as herein provided an amount in
cash equal to the same fraction of the current per share market price of one Preferred Share (as
determined in accordance with Section 14.1) for the Trading Day immediately prior to the date of
such exercise or exchange.




          14.3. Cash in Lieu of Fractional Common Shares. The Company shall not be required to
issue fractions of Common Shares or to distribute certificates which evidence fractional Common
Shares upon the exercise or exchange of Rights. In lieu of such fractional Common Shares, the
Company shall pay to the registered holders of the Right Certificates with regard to which such
fractional Common Shares would otherwise be issuable an amount in cash equal to the same fraction
of the current market value of a whole Common Share (as determined in accordance with Section 14.1)
for the Trading Day immediately prior to the date of such exercise or exchange.




          14.4. Waiver of Right to Receive Fractional Rights or Shares. The holder of a Right by
the acceptance of the Rights expressly waives his right to receive any fractional Rights or any
fractional shares upon exercise or exchange of a Right, except as permitted by this Section 14.




     Section 15. Rights of Action. All rights of action in respect of this Agreement,
except the rights of action given to the Rights Agent under Section 18, are vested in the
respective registered holders of the Right Certificates (and, prior to the Distribution Date, the
registered holders of the Common Shares); and any registered holder of any Right Certificate (or,
prior to the Distribution Date, of the Common Shares), without the consent of the Rights Agent or
of the holder of any other Right Certificate (or, prior to the Distribution Date, of the Common
Shares), may, in his own behalf and for his own benefit, enforce this Agreement, and may institute
and maintain any suit, action or proceeding against the Company to enforce this Agreement, or
otherwise enforce or act in respect of his right to exercise the Rights evidenced by such Right
Certificate in the manner provided in such Right 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



 - 31 - 









 







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 under, and injunctive relief against actual
or threatened violations of the obligations of any Person (including, without limitation, the
Company) subject to, this Agreement.



     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, judgment, decree or ruling (whether interlocutory or final)
issued by a court or by a governmental, regulatory, self-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, that the Company must use all reasonable efforts to have any
such injunction, order, judgment, decree or ruling lifted or otherwise overturned as soon as
possible.



     Section 16. Agreement of Right 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 transferable only in connection with
the transfer of the Common Shares;



     (b) as of and after the Distribution Date, the Right Certificates are transferable only on
the registry books of the Rights Agent if surrendered at the office of the Rights Agent designated
for such purpose, duly endorsed or accompanied by a proper instrument of transfer with all
required certifications completed; and



     (c) the Company and the Rights Agent may deem and treat the Person in whose name the Right
Certificate (or, prior to the Distribution Date, the associated Common Shares certificate) is
registered as the absolute owner thereof and of the Rights evidenced thereby (notwithstanding any
notations of ownership or writing on the Right Certificates or the associated Common Shares
certificate made by anyone other than the Company or the Rights Agent) for all purposes
whatsoever, and neither the Company nor the Rights Agent shall be affected by any notice to the
contrary.



     Section 17. Right Certificate Holder Not Deemed a Shareholder. No holder, as such, of
any Right Certificate shall be entitled to vote, receive dividends or be deemed for any purpose the
holder of the Preferred Shares 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 Right Certificate be construed to confer upon the holder of any Right 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
affecting shareholders (except as provided in Section 24), or to receive dividends or subscription
rights, or otherwise, until the Right



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or Rights evidenced by such Right Certificate shall have been exercised in accordance with the
provisions hereof.



     Section 18. Concerning the Rights Agent. The Company agrees to pay to the Rights Agent
reasonable compensation for all services rendered by it hereunder in accordance with a fee schedule
to be mutually agreed upon and, from time to time, on demand of the Rights Agent, its reasonable
expenses and counsel fees and disbursement and other disbursements incurred in the preparation,
delivery, amendment, 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, damage, judgment, fine, penalty, claim, demand,
settlement, cost or expense (including, without limitation, the reasonable fees and expenses of
legal counsel), incurred without gross negligence, bad faith or willful misconduct on the part of
the Rights Agent, for any action taken, suffered or omitted by the Rights Agent in connection with
the acceptance, administration, exercise and performance of its duties under this Agreement,
including the costs and expenses of defending against any claim of liability arising therefrom,
directly or indirectly. The provisions of this Section 18 and Section 20 below shall survive the
termination of this Agreement, the exercise or expiration of the Rights and the resignation,
replacement or removal of the Rights Agent.



     The Rights Agent shall be authorized and protected and shall incur no liability for or in
respect of any action taken, suffered or omitted by it in connection with its acceptance and
administration of this Agreement and the exercise and performance of its duties hereunder, in
reliance upon any Right Certificate or certificate for the Preferred Shares or the Common Shares or
for other securities of the Company, instrument of assignment or transfer, power of attorney,
endorsement, affidavit, letter, notice, instruction, direction, consent, certificate, statement, or
other paper or document believed by it 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 counsel as set forth in Section 20 hereof. The Rights Agent shall not be deemed to have
knowledge of any event of which it was supposed to receive notice thereof hereunder, and the Rights
Agent shall be fully protected and shall incur no liability for failing to take any action in
connection therewith unless and until it has received such notice.



     Section 19. Merger or Consolidation or Change of Name of Rights Agent. Any Person into
which the Rights Agent or any successor Rights Agent may be merged or with which it may be
consolidated, or any Person resulting from any merger or consolidation to which the Rights Agent or
any successor Rights Agent shall be a party, or any Person succeeding to the 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 any of the parties hereto, provided that such Person would be eligible for
appointment as a successor Rights Agent under the provisions of Section 21. In case at the time
such successor Rights Agent shall succeed to the agency created by this Agreement, any of the Right
Certificates shall have been countersigned but not delivered, any such successor Rights Agent may
adopt the countersignature of the predecessor Rights Agent and deliver such Right Certificates so



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countersigned; and in case at that time any of the Right Certificates shall not have been
countersigned, any successor Rights Agent may countersign such Right Certificates either in the
name of the predecessor Rights Agent or in the name of the successor Rights Agent; and in all such
cases such Right Certificates shall have the full force provided in the Right Certificates and in
this Agreement.



     In case at any time the name of the Rights Agent shall be changed and at such time any of the
Right Certificates shall have been countersigned but not delivered, the Rights Agent may adopt the
countersignature under its prior name and deliver Right Certificates so countersigned; and in case
at that time any of the Right Certificates shall not have been countersigned, the Rights Agent may
countersign such Right Certificates either in its prior name or in its changed name; and in all
such cases such Right Certificates shall have the full force provided in the Right Certificates and
in this Agreement.



     Section 20. Duties of Rights Agent. The Rights Agent undertakes to perform only the
duties and obligations expressly imposed by this Agreement (and no implied duties or obligations)
upon the following terms and conditions, by all of which the Company and the holders of Right
Certificates, by their acceptance thereof, shall be bound.



          20.1. Legal Counsel. The Rights Agent may consult with legal counsel selected by it
(who may be legal counsel for the Company or an employee of the Rights Agent), and the advice or
opinion of such counsel shall be full and complete authorization and protection to the Rights Agent
in respect of any action taken, suffered or omitted by it and in accordance with such opinion.




          20.2. Certificates as to Facts or Matters. 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 an Acquiring Person and the determination of the
current per share market price of any security) be proved or established by the Company prior to
taking, suffering or omitting to take 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 any one of the Chairman of the Board of
Directors, the Chief Executive Officer, the President, the Chief Financial Officer or the Secretary
of the Company and delivered to the Rights Agent; and such certificate shall be full and complete
authorization and protection to the Rights Agent and the Rights Agent shall incur no liability for
or in respect of any action taken, suffered or omitted by it under the provisions of this Agreement
in reliance upon such certificate.




          20.3. Standard of Care. The Rights Agent shall be liable hereunder to the Company and
any other Person only for its own gross negligence, bad faith or willful misconduct.




          20.4. Reliance on Agreement and Right Certificates. 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 Right Certificates (except as to its countersignature thereof) or be




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required to verify the same, but all such statements and recitals are and shall be deemed to
have been made by the Company only.




          20.5. No Responsibility as to Certain Matters. The Rights Agent shall not be under any
responsibility or have any liability in respect of the validity of this Agreement or the execution
and delivery hereof (except the due execution hereof by the Rights Agent) or in respect of the
validity or execution of any Right 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 Right Certificate; nor shall it be responsible for any change in the
exercisability of the Rights (including the Rights becoming null and void pursuant to
Section 11.1.2) or any change or adjustment required under the provisions of Sections 3, 11, 13, 23
or 27 or the ascertaining of the existence of facts that would require any such change or
adjustment (except with respect to the exercise of Rights evidenced by Right Certificates after
receipt of the certificate described in Section 12 hereof; nor shall it by any act hereunder be
deemed to make any representation or warranty as to the authorization or reservation of any
Preferred Shares or other securities to be issued pursuant to this Agreement or any Right
Certificate or as to whether any Preferred Shares will, when so issued, be validly authorized and
issued, fully paid and nonassessable.




          20.6. Further Assurance by Company. 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.




          20.7. Authorized Company Officers. The Rights Agent is hereby authorized and directed
to accept instructions with respect to the performance of its duties hereunder from any one of the
Chairman of the Board of Directors, the Chief Executive Officer, the 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 under this Agreement, and such instructions shall be full
authorization and protection to the Rights Agent and the Rights Agent shall not be liable for or in
respect of any action taken, suffered or omitted to be taken by it in accordance with instructions
of any such officer or for any delay in acting while waiting for those instructions. Any
application by the Rights Agent for written instructions from the Company may, at the option of the
Rights Agent, set forth in writing any action proposed to be taken or omitted to be taken by the
Rights Agent and the date on and/or after which such action shall be taken or such omission shall
be effective. The Rights Agent shall not be liable for any action taken, or omission of, the Rights
Agent in accordance with a proposal included in any such application on or after the date specified
in such application (which date shall not be less than five (5) Business Days after the date any
such officer of the Company actually receives such application, unless any such officer shall have
consented in writing to an earlier date) unless, prior to taking of any such action (or the
effective date in the case of an omission), the Rights Agent shall have received written
instructions in response to such application specifying the action to be taken or omitted.




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          20.8. Freedom to Trade in Company Securities. The Rights Agent and any shareholder,
affiliate, director, officer 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 the Rights Agent were not Rights Agent under this Agreement. Nothing
herein shall preclude the Rights Agent or any such shareholder, affiliate, director, officer or
employee from acting in any other capacity for the Company or for any other Person.




          20.9. Reliance on Attorneys and Agents. 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 answerable or accountable for
any act, default, neglect or misconduct of any such attorneys or agents or for any loss to the
Company or any other Person resulting from any such act, default, neglect or misconduct, in the
selection and continued employment thereof.




          20.10. Incomplete Certificate. If, with respect to any Rights Certificate surrendered
to the Rights Agent for exercise or transfer, the certificate contained in the form of assignment
or the form of election to purchase set forth on the reverse thereof, as the case may be, has not
been completed to certify the holder is not an Acquiring Person (or an Affiliate or Associate
thereof), the Rights Agent shall not take any further action with respect to such requested
exercise or transfer without first consulting with the Company.




          20.11. Rights Holders List. At any time and from time to time after the Distribution
Date, upon the request of the Company, the Rights Agent shall promptly deliver to the Company a
list, as of the most recent practicable date (or as of such earlier date as may be specified by the
Company), of the holders of record of Rights.




     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 thirty (30) days’ notice in
writing mailed to the Company and to each transfer agent of the Common Shares and/or Preferred
Shares known to the Rights Agent, as applicable, by registered or certified mail. Following the
Distribution Date, the Company shall promptly notify the holders of the Right Certificates by
first-class mail of any such resignation. In the event the transfer agency relationship in effect
between the Company and the Rights Agent terminates, the Rights Agent will be deemed to have
resigned automatically and be discharged from its duties under this Agreement as of the effective
date of such termination, and the Company shall be responsible for sending any required notice. The
Company may remove the Rights Agent or any successor Rights Agent upon thirty (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 Shares and/or Preferred Shares, as applicable, by registered or
certified mail, and to the holders of the Right 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 such Rights Agent. If the Company shall fail to make such



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appointment within a period of thirty (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 Right Certificate (who shall, with such notice, submit his Right
Certificate for inspection by the Company), then the registered holder of any Right 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 (i) a Person
organized and doing business under the laws of the United States or the State of California (or any
other state of the United States so long as such Person is authorized to do business in the State
of California) in good standing, having an office in the State of California, which is authorized
under such laws to exercise stock transfer powers and is subject to supervision or examination by
Federal or state authority and which has at the time of its appointment as Rights Agent a combined
capital and surplus of at least $10 million or (ii) an Affiliate of such Person. 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 Shares and/or Preferred Shares, as applicable, and, following the
Distribution Date, mail a notice thereof in writing to the registered holders of the Right
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.



     Section 22. Issuance of New Right Certificates. Notwithstanding any of the provisions
of this Agreement or of the Rights to the contrary, the Company may, at its option, issue new Right
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 Right Certificates made in accordance with the
provisions of this Agreement. In addition, in connection with the issuance or sale of Common Shares
following the Distribution Date and prior to the Expiration Date, the Company shall, with respect
to Common Shares so issued or sold pursuant to the exercise of stock options or under any employee
plan or arrangement, granted or awarded, or upon exercise, conversion or exchange of securities
hereinafter issued by the Company, in each case existing prior to the Distribution Date, issue
Right Certificates representing the appropriate number of Rights in connection with such issuance
or sale; provided, however , that (i) no such Right 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
Right Certificate would be issued and (ii) no such Right Certificate shall be issued if, and to the
extent that, appropriate adjustment shall otherwise have been made in lieu of the issuance thereof.



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     Section 23. Redemption.



          23.1. Right to Redeem. The Board of Directors may, at its option, at any time prior to
a Trigger Event, redeem all but not less than all of the then outstanding Rights at a redemption
price of $0.001 per Right, appropriately adjusted to reflect any stock split, stock dividend,
recapitalization or similar transaction occurring after the date hereof (such redemption price
being hereinafter referred to as the “Redemption Price”), and the Company may, at its option, pay
the Redemption Price in Common Shares (based on the “current per share market price,” determined
pursuant to Section 11.4, of the Common Shares at the time of redemption), cash or any other form
of consideration deemed appropriate by the Board of Directors. The redemption of the Rights by the
Board of Directors may be made effective at such time, on such basis and subject to such conditions
as the Board of Directors in its sole discretion may establish.




          23.2. Qualified Offer. If the Company receives a Qualified Offer and the Board of
Directors has not redeemed the outstanding Rights or exempted such offer from the terms of this
Agreement or called a special meeting of shareholders for the purpose of voting on whether or not
to exempt such Qualified Offer from the terms of this Agreement, in each case by the end of the
ninety (90) Business Days following the commencement of such Qualified Offer, and if the Company
receives, not earlier than ninety (90) Business Days nor later than one hundred twenty (120)
Business Days following the commencement of such Qualified Offer, a written notice complying with
the terms of this Section 23.2 (the “Special Meeting Notice”), properly executed by the holders of
record (or their duly authorized proxy) of ten percent (10%) or more of the shares of Common Shares
then outstanding (excluding shares of Common Shares beneficially owned by the Person making the
Qualified Offer and such Person’s Affiliates and Associates), directing the Board of Directors to
submit to a vote of shareholders at a special meeting of the shareholders of the Company (a
“Special Meeting”) a resolution authorizing the redemption of all, but not less than all, of the
then outstanding Rights at the Redemption Price (the “Redemption Resolution”), then the Board of
Directors shall take such actions as are necessary or desirable to cause the Redemption Resolution
to be submitted to a vote of shareholders within ninety (90) Business Days following receipt by the
Company of the Special Meeting Notice (the “Special Meeting Period”), including by including a
proposal relating to adoption of the Redemption Resolution in the proxy materials of the Company
for the Special Meeting; provided, however, that if the Company, at any time during
the Special Meeting Period and prior to a vote on the Redemption Resolution, enters into a
Definitive Acquisition Agreement, the Special Meeting Period may be extended (and any Special
Meeting called in connection therewith may be cancelled) if the Redemption Resolution will be
separately submitted to a vote at the same meeting as the Definitive Acquisition Agreement. For
purposes of a Special Meeting Notice, the record date for determining eligible holders of record of
the Common Shares shall be the ninetieth (90th) Business Day following the commencement of a
Qualified Offer. Any Special Meeting Notice must be delivered to the Secretary of the Company at
the principal executive offices of the Company and must set forth, as to the shareholders of record
executing such Special Meeting Notice, (i) the name and address of such shareholders, as they
appear on the Company’s books and records, (ii) the number of shares of Common Shares that are
owned




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of record by each of such shareholders and (iii) in the case of Common Shares that is owned
beneficially by another Person, an executed certification by the holder of record that such holder
has executed such Special Meeting Notice only after obtaining instructions to do so from such
beneficial owner. Subject to the requirements of applicable law, the Board of Directors may take a
position in favor of or opposed to the adoption of the Redemption Resolution, or no position with
respect to the Redemption Resolution, as it determines to be appropriate in the exercise of its
fiduciary duties. In the event that (A) no Person has become an Acquiring Person prior to the
effective date of redemption referred to below in this sentence, (B) the Qualified Offer continues
to be a Qualified Offer prior to the last day of the Special Meeting Period (the “Outside Meeting
Date”) and (C) either (1) the Special Meeting is not held on or prior to the ninetieth (90th)
Business Day following receipt of the Special Meeting Notice or (2) at the Special Meeting at which
a quorum is present, the holders of a majority of the shares of Common Shares outstanding as of the
record date for the Special Meeting selected by the Board of Directors (excluding shares of Common
Shares beneficially owned by the Person making the Qualified Offer and such Person’s Affiliates and
Associates), shall vote in favor of the Redemption Resolution, then all of the Rights shall be
deemed redeemed at the Redemption Price by such failure to hold the Special Meeting or as a result
of the adoption of the Redemption Resolution by the shareholders of the Company (or the Board of
Directors shall take such other action as may be necessary to prevent the existence of the Rights
from interfering with the consummation of the Qualified Offer), such redemption to be effective, as
the case may be, (x) as of the close of business on the Outside Meeting Date if a Special Meeting
is not held on or prior to such date or (y) if a Special Meeting is held on or prior to the Outside
Meeting Date, as of the date on which the results of the vote adopting the Redemption Resolution at
the Special Meeting are certified as official by the appointed inspectors of election for the
Special Meeting.




          23.3. Redemption Procedures. Immediately upon the action of the Board of Directors
ordering the redemption of the Rights pursuant to Section 23.1 (or at such later time as the Board
of Directors may establish for the effectiveness of such redemption) or the effectiveness of a
redemption of the Rights pursuant to Section 23.2, in either case, 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. The
Company shall promptly give public notice of any such redemption (with prompt notice thereof to the
Rights Agent); provided, however, that the failure to give, or any defect in, any
such notice shall not affect the legality or validity of such redemption. Within ten (10) days
after such action of the Board of Directors so ordering the redemption of the Rights pursuant to
Section 23.1 or Section 23.2, the Company shall mail a notice of redemption to all the holders of
the then outstanding Rights at their last addresses as they appear upon the registry books of the
Rights Agent or, prior to the Distribution Date, on the registry books of the transfer agent for
the Common Shares. 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 shall state the
method by which the payment of the Redemption Price will be made.




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     Section 24. Notice of Certain Events. In case the Company shall propose at any time
after the earlier of the Shares Acquisition Date and the Distribution Date (a) to pay any dividend
payable in stock of any class to the holders of Preferred Shares or to make any other distribution
to the holders of Preferred Shares (other than a regular periodic cash dividend), or (b) to offer
to the holders of Preferred Shares rights or warrants to subscribe for or to purchase any
additional Preferred Shares or shares of stock of any class or any other securities, rights or
options, or (c) to effect any reclassification of its Preferred Shares (other than a
reclassification involving only the subdivision of outstanding Preferred Shares), or (d) to effect
any consolidation or merger into or with, 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 or more transactions, of
fifty percent (50%) or more of the assets or earning power of the Company and its Subsidiaries
(taken as a whole) to, any other Person (other than pursuant to a merger or other acquisition
agreement of the type described in Section 1.3(ii)(A)(z)), or (e) to effect the liquidation,
dissolution or winding up of the Company, or (f) to declare or pay any dividend on the Common
Shares payable in Common Shares or to effect a subdivision, combination or consolidation of the
Common Shares (by reclassification or otherwise than by payment of dividends in Common Shares),
then, in each such case, the Company shall give to the Rights Agent and to each holder of a Right
Certificate, in accordance with Section 25, 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 Preferred Shares and/or Common Shares, if any such date is to be fixed, and such notice shall
be so given in the case of any action covered by clause (a) or (b) above at least ten (10) days
prior to the record date for determining holders of the Preferred Shares for purposes of such
action, and in the case of any such other action, at least ten (10) days prior to the date of the
taking of such proposed action or the date of participation therein by the holders of the Preferred
Shares and/or Common Shares, whichever shall be the earlier.



     In case any event set forth in Section 11.1.2 or Section 13 shall occur, then, in any such
case, (i) the Company shall as soon as practicable thereafter give to the Rights Agent and to each
holder of a Right Certificate, in accordance with Section 25, a notice of the occurrence of such
event, which notice shall describe the event and the consequences of the event to holders of Rights
under Section 11.1.2 and Section 13, and (ii) all references in this Section 24 to Preferred Shares
shall be deemed thereafter to refer to Common Shares and/or, if appropriate, other securities.



     Notwithstanding anything in this Agreement to the contrary, prior to the Distribution Date a
filing by the Company with the Securities and Exchange Commission shall constitute sufficient
notice to the holders of securities of the Company, including the Rights, for purposes of this
Agreement and no other notice need be given.



     Section 25. Notices. Notices or demands authorized by this Agreement to be given or
made by the Rights Agent or by the holder of any Right Certificate to or on the Company shall be
sufficiently given or made if sent by first-class mail, postage prepaid, addressed



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(until another address is filed in writing with the Rights Agent) as follows:



Asyst Technologies, Inc.

46897 Bayside Parkway

Fremont, CA 94538

Attention: General Counsel



with a copy to (such copy shall not constitute notice):



Baker & McKenzie LLP

Two Embarcadero Center, 11th Floor

San Francisco, CA 94111

Attention: Philip Bush, Esq.



Subject to the provisions of Section 21 and Section 24, any notice or demand authorized by this
Agreement to be given or made by the Company or by the holder of any Right 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:



Computershare Trust Company, N.A.

250 Royal Street

Canton, MA 02021

Attn: Client Administration



Notices or demands authorized by this Agreement to be given or made by the Company or the Rights
Agent to the holder of any Right Certificate (or, prior to the Distribution Date, to the holder of
any certificate representing Common Shares) shall be sufficiently given or made if sent by
first-class mail, postage-prepaid, addressed to such holder at the address of such holder as shown
on the registry books of the Company.




     Section 26. Supplements and Amendments. For so long as the Rights are then redeemable,
the Company may in its sole and absolute discretion, and the Rights Agent shall, if the Company so
directs but subject to the other provisions of this Section, supplement or amend any provision of
this Agreement in any respect without the approval of any holders of Rights or Common Shares. From
and after the time that the Rights are no longer redeemable, the Company may, and the Rights Agent
shall, if the Company so directs but subject to the other provisions of this Section, from time to
time supplement or amend this Agreement without the approval of any holders of Rights;
provided, however, that no such supplement or amendment shall adversely affect the
interests of the holders of Rights as such (other than an Acquiring Person or an Affiliate or
Associate of an Acquiring Person), and no such supplement or amendment may cause the Rights again
to become redeemable or cause this Agreement again to become amendable other than in accordance
with this sentence; provided further, that the right of the Board of Directors to
extend the Distribution Date shall not require any amendment or supplement hereunder. Upon the
delivery of a certificate from an appropriate officer of the Company which states that the



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proposed supplement or amendment is in compliance with the terms of this Section 26, the
Rights Agent shall execute such supplement or amendment. Notwithstanding anything contained in
this Agreement to the contrary, the Rights Agent may, but shall not be obligated to, enter into any
supplement or amendment that adversely affects the Rights Agent’s own rights, duties, obligations
or immunities under this Agreement.



     Section 27. Exchange.



          27.1. Exchange of Common Shares for Rights. The Board of Directors may, at its
option, at any time after the occurrence of a Trigger Event, exchange all or part of the then
outstanding and exercisable Rights (which shall not include Rights that have become null and void
pursuant to the provisions of Section 11.1.2) for Common Shares at an exchange ratio of one Common
Share per Right, appropriately adjusted to reflect any stock split, stock dividend or similar
transaction occurring in respect of the Common Shares after the date hereof (such amount per Right
being hereinafter referred to as the “Exchange Ratio”). Notwithstanding the foregoing, the Board
of Directors shall not be empowered to effect such exchange at any time after an Acquiring Person
shall have become the Beneficial Owner of Common Shares aggregating 50% or more of the Common
Shares then outstanding. From and after the occurrence of an event specified in Section 13.1
hereof, any Rights that theretofore have not been exchanged pursuant to this Section 27.1 shall
thereafter be exercisable only in accordance with Section 13 and may not be exchanged pursuant to
this Section 27.1. The exchange of the Rights by the Board of Directors may be made effective at
such time, on such basis and with such conditions as the Board of Directors in its sole discretion
may establish.




          27.2. Exchange Procedures. Immediately upon the effectiveness of the action of the
Board of Directors ordering the exchange of any Rights pursuant to paragraph (a) of this Section 27
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 Common Shares 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 shall promptly mail a notice of any such exchange to all of
the holders of the Rights so exchanged at their last addresses as they appear upon 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 Common Shares 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 null
and void pursuant to the provisions of Section 11.1.2 hereof) held by each holder of Rights.




          27.3. Insufficient Shares. The Company may at its option substitute, and, in the
event that there shall not be sufficient Common Shares issued but not outstanding or authorized but
unissued to permit an exchange of Rights for Common Shares as




 - 42 - 









 




contemplated in accordance with this Section 27, the Company shall substitute to the extent of
such insufficiency, for each Common Share that would otherwise be issuable upon exchange of a
Right, a number of Preferred Shares or fraction thereof (or equivalent preferred shares, as such
term is defined in Section 11.2) such that the current per share market price (determined pursuant
to Section 11.4) of one Preferred Share (or equivalent preferred share) multiplied by such number
or fraction is equal to the current per share market price of one Common Share (determined pursuant
to Section 11.4) as of the date of such exchange.




     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. 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
Right Certificates (and, prior to the Distribution Date, the Common Shares) 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 Right Certificates (and,
prior to the Distribution Date, the Common Shares).



     Section 30. Determination and Actions by the Board of Directors. The Board of
Directors shall have the exclusive power and authority to administer this Agreement and to exercise
the 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 (i) interpret the provisions of this Agreement and (ii) make all
determinations deemed necessary or advisable for the administration of this Agreement (including,
without limitation, a determination with respect to the redemption or exchange of the Rights or to
amend this Agreement). All such actions, calculations, interpretations and determinations that are
done or made by the Board of Directors in good faith shall (x) be final, conclusive and binding on
the Company, the Rights Agent, the holders of the Rights, as such, and all other Persons.



     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.



     Section 32. Governing Law. This Agreement and each Right Certificate issued hereunder
shall be deemed to be a contract made under the laws of the State of California and for all
purposes shall be governed by and construed in accordance with the laws of such State applicable to
contracts to be made and performed entirely within such State, provided, however,
that all provisions regarding the rights, duties and obligations of the Rights Agent shall be
governed by and construed in accordance with the laws of the State of Massachusetts applicable to
contracts made and to be performed entirely within such State.



 - 43 - 









 





     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.



     Section 35. Force Majeure. Notwithstanding anything to the contrary contained herein,
the Rights Agent shall not be liable for any delays or failures in performance resulting from acts
beyond its reasonable control including, without limitation, acts of God, terrorist acts, shortage
of supply, breakdowns or malfunctions, interruptions or malfunction of computer facilities, or loss
of data due to power failures or mechanical difficulties with information storage or retrieval
systems, labor difficulties, war, or civil unrest.



[This space intentionally left blank.]




 - 44 - 









 





     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly executed, as of
the day and year first above written.



	 	 	 	 	 
	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 
	By

	 	/s/ Stephen S. Schwartz
 

	 	 
	 
	 	 	 	 
	Name:

	 	Stephen S. Schwartz	 	 
	 
	 	 	 	 
	Title:

	 	Chairman of the Board of Directors, President and Chief
Executive Officer	 	 
	 
	 	 	 	 
	COMPUTERSHARE TRUST COMPANY, N.A.,


AS RIGHTS AGENT	 	 
	 
	 	 	 	 
	By

	 	/s/ Katherine S. Anderson
 

	 	 
	 
	Name:

	 	Katherine S. Anderson	 	 
	 
	 	 	 	 
	Title:

	 	Managing Director	 	 






Signature Page to Rights Agreement




 









 





EXHIBIT A




FORM OF




AMENDED AND RESTATED




CERTIFICATE OF DETERMINATION




OF




SERIES A JUNIOR PARTICIPATING PREFERRED STOCK




OF




ASYST TECHNOLOGIES, INC.




     The undersigned, Stephen S. Schwartz and Stephen M. Debenham, in accordance with provisions of
Section 401 of the California Corporations Code, do hereby certify that:


1. They are the duly elected and acting Chairman of the Board of Directors, President and Chief
Executive Officer and Vice-President, General Counsel and Secretary, respectively, of Asyst
Technologies, Inc., a corporation organized and existing under the laws of the State of California
(the “Corporation”).



2. Pursuant to authority given by the Corporation’s Amended and Restated Articles of
Incorporation, the Board of Directors of the Corporation (hereinafter called the “Board of
Directors”) has duly adopted the following resolutions at a meeting duly called and held on July 9,
2008, by which its Certificate of Determination of Series A Junior Participating Preferred Stock of
the Corporation is hereby amended and restated in its entirety as set forth herein.




     RESOLVED, that pursuant to the authority granted to and vested in the Board of Directors in
accordance with the provisions of the Amended and Restated Articles of Incorporation of this
Corporation, the Board of Directors hereby amends and restates the designation and number of shares
and fixes the relative rights, preferences, privileges and restrictions and preferences, and
qualifications, limitations and restrictions of its previously designated series of Preferred Stock
as follows:



Series A Junior Participating Preferred Stock




     SECTION 1. DESIGNATION AND AMOUNT. The shares of such series shall be designated as “Series A
Junior Participating Preferred Stock” (the “Series A Preferred Stock”) and the number of shares
constituting the Series A Preferred Stock shall be 250,000. Such number of shares may be increased
or decreased by resolution of the Board of Directors; provided that no decrease
shall reduce the number of shares of Series A Preferred Stock to a number less than the number of
shares then outstanding plus the number of shares reserved for issuance upon the exercise of
outstanding options, rights or warrants or upon the conversion of any outstanding securities issued
by the Corporation convertible into Series A Preferred Stock.



 









 





     SECTION 2. DIVIDENDS AND DISTRIBUTIONS.



     (A) Subject to the prior and superior rights of the holders of any shares of any class or
series of stock of this Corporation ranking prior and superior to the Series A Preferred Stock with
respect to dividends, the holders of shares of Series A Preferred Stock, in preference to the
holders of Common Stock, no par value (the “Common Stock”), of the Corporation, and of any other
stock ranking junior to the 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 first 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) $1.00 or (b) subject to the provision 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 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 of Series A Preferred Stock. In the
event the Corporation shall at any time declare or pay any dividend on the Common Stock payable in
shares of Common Stock, or effect a subdivision, combination or consolidation of the outstanding
shares of Common Stock (by reclassification or otherwise than by payment of a dividend in shares of
Common Stock) into a greater or lesser number of shares of Common Stock, 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) of this Section immediately after it declares a dividend or
distribution on the Common Stock (other than a dividend payable in shares of Common Stock);
provided that, in the event no dividend or distribution shall have been declared on the Common
Stock during the period between any Quarterly Dividend Payment Date and the next subsequent
Quarterly Dividend Payment Date, a dividend of $1.00 per share on the Series A Preferred Stock
shall nevertheless be payable on such subsequent Quarterly Dividend Payment Date.



     (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, 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 not more
than sixty (60) 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 on all matters submitted to a vote
of the shareholders of the Corporation. In the event the Corporation shall at any time declare or
pay any dividend on the Common Stock payable in shares of Common Stock, or effect a subdivision,
combination or consolidation of the outstanding shares of Common Stock (by reclassification or
otherwise than by payment of a dividend in shares of Common Stock) into a greater or lesser number
of shares of Common Stock, then in each such case the number of votes per share to which holders of
shares of Series A Preferred Stock were entitled 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, in any other Certificate of Determination creating a
series of Preferred Stock or any similar stock, or by law, the holders of shares of Series A
Preferred Stock and the holders of shares of Common Stock and any other capital stock of the
Corporation having general voting rights shall vote together as one class on all matters submitted
to a vote of shareholders of the Corporation.



     (C) Except as set forth herein, or as otherwise provided by law, 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 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, or make any other distributions, on 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, 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
junior (either as to dividends or upon liquidation, dissolution or winding up) to the Series A
Preferred Stock, provided that the Corporation may at any time redeem, purchase or
otherwise acquire shares of any such junior stock in exchange for shares of any stock of the
Corporation ranking junior (both as to dividends and upon dissolution, liquidation or winding up)
to the Series A Preferred Stock; or




          (iv) redeem or 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 paragraph (A) of this Section 4, 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 canceled promptly after
the acquisition thereof. All such shares shall upon their cancellation become authorized but
unissued shares of Preferred Stock and may be reissued as part of a new series of Preferred Stock
subject to the conditions and restrictions on issuance set forth herein, in the Amended and
Restated Articles of Incorporation, or in any other Certificate of Determination creating a series
of Preferred Stock or any similar stock or as otherwise required by law.



     SECTION 6. LIQUIDATION, DISSOLUTION OR WINDING UP.



     (A) Upon any liquidation, dissolution or winding up of the Corporation, voluntary or otherwise
no distribution shall be made (1) to 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 an amount per
share (the “Series A Liquidation Preference”) equal to $1,000 per share, plus an amount equal to
accrued and unpaid dividends and distributions thereon, whether or not declared, to the date of
such payment, provided that the holders of shares of Series A Preferred Stock shall be entitled to
receive 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 shares of Common Stock, or (2) to the holders of 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 distributions made ratably on the Series A Preferred Stock and all 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. In the event the Corporation shall at
any time declare or pay any dividend on the Common Stock payable in shares of Common Stock, or
effect a subdivision, combination or consolidation of the outstanding shares of Common Stock (by
reclassification or otherwise than by payment of a dividend in shares of Common Stock) into a
greater or lesser number of shares of Common Stock, then in each such case the aggregate amount to
which holders of shares of Series A Preferred Stock were entitled immediately prior to such event
under the proviso in clause (1) 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 are outstanding immediately prior to such event.



     (B) In the event, however, that there are not sufficient assets available to permit payment in
full of the Series A Liquidation Preference and the liquidation preferences of all other classes
and series of stock of the Corporation, if any, that rank on a parity with the Series A Preferred
Stock in respect thereof, then the assets available for such distribution shall be distributed
ratably to the holders of the Series A Preferred Stock and the holders of such parity shares in
proportion to their respective liquidation preferences.



     (C) Neither the merger or consolidation of the Corporation into or with another corporation
nor the merger or consolidation of any other corporation into or with the Corporation shall be
deemed to be a liquidation, dissolution or winding up of the Corporation within the meaning hereof.



     SECTION 7. CONSOLIDATION, MERGER, ETC. In case the Corporation shall enter into any
consolidation, merger, combination or other transaction in which the 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 each share of Series A Preferred Stock shall at the same time be similarly exchanged
or changed into 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 declare or pay any dividend on
the Common Stock payable in shares of Common Stock, or effect a subdivision, combination or
consolidation of the outstanding shares of Common Stock (by reclassification or otherwise than by
payment of a dividend in shares of Common Stock) into a greater or lesser number of shares of
Common Stock, 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 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 by
the Corporation.



     SECTION 9. RANK. The Series A Preferred Stock shall rank, with respect to the payment of
dividends and the distribution of assets upon liquidation, dissolution or winding up, junior to all
series of any other class of the Corporation’s Preferred Stock, except to the extent that any such
other series specifically provides that it shall rank on a parity with or junior to the Series A
Preferred Stock.



     SECTION 10. AMENDMENT. At any time any shares of Series A Preferred Stock are outstanding, the
Amended and Restated Articles of Incorporation of the Corporation shall not be 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 two-thirds of the outstanding shares of Series A Preferred Stock, voting together as a
single class.



     SECTION 11. FRACTIONAL SHARES. Series A Preferred Stock may be issued in fractions of a share
that 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.


3. The authorized number of shares of Preferred Stock of this corporation is 4,000,000, and the
number of shares of Preferred Stock constituting Series A Preferred Stock, none of which has been
issued, is 250,000.




[This space intentionally left blank.]




 









 





     IN WITNESS WHEREOF, the undersigned Stephen S. Schwartz, Chairman, President and Chief
Executive Officer of Asyst Technologies, Inc. and Stephen M. Debenham, Vice-President, General
Counsel and Secretary of said corporation, each certifies under penalty of perjury that the matters
set forth in the foregoing Certificate of Determination are true of their own knowledge.



                                                            




STEPHEN S. SCHWARTZ

CHAIRMAN OF THE BOARD OF DIRECTORS, PRESIDENT AND CHIEF

EXECUTIVE OFFICER




Executed at Fremont, California on July _, 2008.




                                                            




STEPHEN M. DEBENHAM

VICE-PRESIDENT, GENERAL COUNSEL AND SECRETARY




Executed at Fremont, California on July _, 2008.




 









 





EXHIBIT B




[Form of Right Certificate]




			
	 	 	 
	Certificate No. R-
	 	                     Rights





NOT EXERCISABLE AFTER JULY 8, 2009 OR EARLIER IF REDEMPTION OR EXCHANGE OCCURS. THE RIGHTS ARE
SUBJECT TO REDEMPTION AT $0.01 PER RIGHT, AND TO EXCHANGE ON THE TERMS SET FORTH IN THE AGREEMENT.
UNDER CERTAIN CIRCUMSTANCES (SPECIFIED IN SECTION 11.1.2 OF THE AGREEMENT), RIGHTS BENEFICIALLY
OWNED BY OR TRANSFERRED TO AN ACQUIRING PERSON (AS DEFINED IN THE AGREEMENT), OR ANY SUBSEQUENT
HOLDER OF SUCH RIGHTS WILL BECOME NULL AND VOID AND WILL NO LONGER BE TRANSFERABLE.




RIGHT CERTIFICATE




ASYST TECHNOLOGIES, 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 Amended and Restated Rights Agreement, dated as of July 9, 2008 as
the same may be amended from time to time (the “Agreement”), between Asyst Technologies, Inc., a
California corporation (the “Company”), and Computershare Trust Company, N.A., as Rights Agent (the
“Rights Agent”), to purchase from the Company at any time after the Distribution Date and prior to
5:00 P.M. (Massachusetts time) on July 8, 2009, at the offices of the Rights Agent, or its
successors as Rights Agent, designated for such purpose, one one-thousandth of a fully paid,
nonassessable share of Series A Participating Preferred Stock, no par value (the “Preferred
Shares”) of the Company, at a purchase price of $12.50 per one one-thousandth of a Preferred Share,
subject to adjustment (the “Purchase Price”), upon presentation and surrender of this Right
Certificate with the Form of Election to Purchase and certification duly executed. The number of
Rights evidenced by this Right Certificate (and the number of one one-thousandth of a Preferred
Share which may be purchased upon exercise thereof) set forth above, and the Purchase Price set
forth above, are the number and Purchase Price as of
                    
___, 200___ based
on the Preferred Shares as constituted at such date. Capitalized terms used in this Right
Certificate without definition shall have the meanings ascribed to them in the Agreement. As
provided in the Agreement, the Purchase Price and the number of Preferred Shares which may be
purchased upon the exercise of the Rights evidenced by this Right Certificate are subject to
modification and adjustment upon the happening of certain events.



     This Right Certificate is subject to all of the terms, provisions and conditions of the
Agreement, which terms, provisions and conditions are hereby incorporated herein by reference and
made a part hereof and to which 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 Right Certificates. Copies of the Agreement are on
file at the principal offices of the Company and the Rights Agent.



     This Right Certificate, with or without other Right Certificates, upon surrender at the
offices of the Rights Agent designated for such purpose, may be exchanged for another Right
Certificate or Right Certificates of like tenor and date evidencing Rights entitling the holder to
purchase a like aggregate number of one one-thousandth of a Preferred Share as the Rights evidenced
by the Right Certificate or Right Certificates surrendered shall have entitled such holder to
purchase. If this Right Certificate shall be exercised in part, the holder shall be entitled to
receive upon surrender hereof another Right Certificate or Right Certificates for the number of
whole Rights not exercised.



     Subject to the provisions of the Agreement, the Board of Directors may, at its option,
(i) redeem the Rights evidenced by this Right Certificate at a redemption price of $0.01 per Right
or (ii) exchange Common Shares for the Rights evidenced by this Certificate, in whole or in part.



     No fractional Preferred Shares will be issued upon the exercise of any Right or Rights
evidenced hereby (other than fractions of Preferred Shares which are integral multiples of one
one-thousandth of a Preferred Share, 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
Agreement.



     No holder of this Right Certificate, as such, shall be entitled to vote or receive dividends
or be deemed for any purpose the holder of the Preferred Shares 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 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 Agreement), or to receive dividends or subscription rights, or otherwise, until
the Right or Rights evidenced by this Right Certificate shall have been exercised as provided in
the Agreement.



     If any term, provision, covenant or restriction of the 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 the Agreement shall remain in full force and
effect and shall in no way be affected, impaired or invalidated.



     This Right Certificate shall not be valid or binding for any purpose until it shall have been
countersigned by the Rights Agent.



 









 





     WITNESS the facsimile signature of the proper officers of the Company and its corporate seal.
Dated as of                     , 200___.



	 	 	 	 	 	 	 	 	 	 	 
	Attested:	 	 	 	ASYST TECHNOLOGIES, INC.	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:

	 	 	 	 	 	By:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:

	 	 	 	 	 	Title:	 	 	 	 
	 

	 	 

	 	 	 	 	 	 

	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Countersigned:	 	 	 	 	 	 	 	 
	COMPUTERSHARE TRUST	 	 	 	 	 	 	 	 
	COMPANY, N.A., as Rights Agent	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	By:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Title:
	 	 	 	 	 	 	 	 	 	 
	 

	 	 

	 	 	 	 	 	 	 	 






 









 





[Form of Reverse Side of Right 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 transfers unto	 	 	 	 
	 

	 	 	 	 

	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 
	 
	 	 	 	 	 	 
	 	 	 




(Please print name and
address of transferee)




     Rights evidenced by this Right Certificate, together with all right, title and interest therein,
and does hereby irrevocably constitute and appoint
                     Attorney, to
transfer the within Right Certificate on the books of the within-named Company, with full power of
substitution.



Dated:                     




                                                            

Signature




Signature Medallion Guaranteed:




                                                            




     Signatures must be guaranteed by an “eligible guarantor institution” as defined in Rule
17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.



 









 





CERTIFICATE




The undersigned hereby certifies that:



     (1) the Rights evidenced by this Right Certificate are not Beneficially Owned by and are not
being assigned to an Acquiring Person or an Affiliate or an Associate thereof; and



     (2) after due inquiry and to the best knowledge of the undersigned, the undersigned did not
acquire the Rights evidenced by this Right Certificate from any person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate thereof.



Dated:                    




                                                            

Signature




 









 





FORM OF ELECTION TO PURCHASE




(To be executed if holder desires to

exercise the Right Certificate.)




To: Asyst Technologies, Inc.



     The undersigned hereby irrevocably elects to exercise                      Rights
represented by this Right Certificate to purchase the Preferred Shares issuable upon the exercise
of such Rights (or such other securities or property 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:



	 	 	 
	 

(Please print name and address)

	 	 
	 
	 	 
	 


	 	 






If such number of Rights shall not be all the Rights evidenced by this Right Certificate, a new
Right Certificate for the balance remaining 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)

	 	 
	 
	 	 
	 


	 	 






Dated:                     




                                                            

Signature




Signature Medallion Guaranteed:




                                                            




     Signatures must be guaranteed by an “eligible guarantor institution” as defined in Rule
17Ad-15 promulgated under the Securities Exchange Act of 1934, as amended.



 









 





CERTIFICATE




     The undersigned hereby certifies that:



     (1) the Rights evidenced by this Right Certificate are not Beneficially Owned by and are not
being assigned to an Acquiring Person or an Affiliate or an Associate thereof; and



     (2) after due inquiry and to the best knowledge of the undersigned, the undersigned did not
acquire the Rights evidenced by this Right Certificate from any person who is, was or subsequently
became an Acquiring Person or an Affiliate or Associate thereof.



Dated:                     




                                                            

Signature



NOTICE




     The signature in the foregoing Form of Assignment and Form of Election to Purchase must
conform to the name as written upon the face of this Right Certificate in every particular, without
alteration or enlargement or any change whatsoever.



     In the event the certification set forth above in the Form of Assignment or Form of Election
to Purchase is not completed, the Company will deem the beneficial owner of the Rights evidenced by
this Right Certificate to be an Acquiring Person or an Affiliate or Associate hereof and such
Assignment or Election to Purchase will not be honored.