Registration
No. 333-50130
Registration
No. 333-128512
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
________
POST-EFFECTIVE
AMENDMENT NO. 1
TO
FORM
S-8
REGISTRATION
STATEMENT
Under
THE
SECURITIES ACT OF 1933
(Exact
name of registrant as specified in its charter)
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Oregon
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93-0822509
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(State
or other jurisdiction of of incorporation or organization)
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(IRS
Employer Identification No.)
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150
Avery Street
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Walla
Walla, Washington
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99362
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(Address
of principal
executive offices)
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(Zip
Code)
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2003
Restated Employees' Stock Incentive Plan
(Full
title of the plan)
David
M.
Camp
150
Avery
Street
Walla
Walla, Washington 99362
(Name,
address and telephone number of agent for service)
Copies
to:
Thomas
P.
Palmer
Tonkon
Torp LLP
1600
Pioneer Tower
888
S.W.
Fifth Avenue
Portland,
Oregon 97204
(503)
221-1440
Explanatory
Note
On
November 1, 1993, 250,000 shares of
common stock under the Key Technology, Inc. (the "Company") 2003 Restated
Employees' Stock Incentive Plan (the "Plan"), then known as the 1989 Employees'
Stock Option Plan, were registered on a Form S-8 filed with the Securities
and
Exchange Commission (Registration No. 33-71108). The Plan was amended
in 1996 to increase the number of shares authorized under the Plan from 250,000
to 750,000 shares. The name of the Plan was changed at that time from
the 1989 Employees' Stock Option Plan to the 1996 Employees' Stock Option
Plan. The Plan was amended in 2000 to increase the number of shares
authorized under the Plan from 750,000 to 1,250,000 shares. On
November 17, 2000, the 1,000,000 shares added to the Plan in 1996 and 2000
were
registered on a Form S-8 (Registration No. 333-50130). The name of
the Plan was changed in 2004 from the 1996 Employees' Stock Option Plan to
the
2003 Restated Employees' Stock Incentive Plan. The Plan was further
amended at that time to extend its term through November 11, 2013, authorize
grants of restricted stock awards, and authorize the Compensation Committee
of
the Board of Directors to extend the exercise period of an option following
the
death or disability of an employee, as well as to increase the number of
shares
authorized under the Plan by 100,000, bringing the aggregate total shares
authorized under the Plan to 1,350,000. On September 23, 2005, the
additional 100,000 shares authorized under the Plan in 2004 were registered
on a
Form S-8 (Registration No. 333-128512).
Pursuant
to Rule 429(b) under the
Securities Act of 1933, as amended (the "Securities Act"), this document
constitutes Post-Effective Amendment No. 1 to Registration Statement Nos.
333-50130 and 333-128512. On the immediately following pages is a
reoffer prospectus prepared in accordance with General Instruction C of Form
S-8, in accordance with the requirements of Part I of Form S-3, and Pursuant
to
Rule 429(a). The reoffer prospectus is a combined prospectus which relates
to
(i) 1,000,000 shares of common stock registered on Registration Statement
No.
333-50130, and (ii) 100,000 shares of common stock registered on Registration
Statement No. 333-128512. The reoffer prospectus may be used for
reoffers of shares of common stock defined as "control securities" under
General
Instruction C to Form S-8 (as that term is defined in Rule 144(a)(3) of the
General Rules and Regulations under the Securities Act) pursuant to grants
made
under the Plan.
REOFFER
PROSPECTUS
KEY
TECHNOLOGY, INC.
61,338
Shares of Common Stock
This
reoffer prospectus (this
"prospectus" or "reoffer prospectus") is being used in connection with the
offering from time-to-time by certain directors and officers of Key Technology,
Inc. (the "selling shareholders") or their successors in interest of shares
of
restricted common stock (the "shares" or "common stock") of Key Technology,
Inc.
issued to or that may be issued to the selling shareholders pursuant to Key
Technology's 2003 Restated Employees' Stock Incentive Plan (the
"Plan"). The Plan was originally known as the 1989 Employees' Stock
Option Plan. Its name was changed in 1996 to the 1996 Employees'
Stock Option Plan, and in 2004 its name was changed to the 2003 Restated
Employees' Stock Incentive Plan. Unless the context clearly indicates
otherwise, the terms "we," "us," "our," "Key" or the "Company" refer to Key
Technology, Inc. and its operating subsidiaries.
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Shares
of common stock offered by selling shareholders
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61,338
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Offering
price
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The
shares will be sold from time-to-time by the selling shareholders
or by
their pledgees, donees, transferees or other successors in
interest. Such sales may be made on the Nasdaq Global Market at
prices and at terms then prevailing or at prices related to the
then
current market price, or in negotiated transactions. On
September 6, 2007, the closing sales price of the Company's common
stock
on the Nasdaq Global Market was $29.39 per share.
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Nasdaq
Global Market Symbol
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KTEC
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______________________________________________
The
common stock involves a high degree of risk. See "Risk Factors"
beginning on page 5.
______________________________________________
Neither
the Securities and Exchange
Commission nor any state securities commission has approved or disapproved
these
securities or passed upon the adequacy or accuracy of this
prospectus. Any representation to the contrary is a criminal
offense.
______________________________________________
The
date
of this prospectus is September 11, 2007.
______________________________________________
This
prospectus incorporates by
reference important business and financial information about us that is not
included in or delivered with this prospectus. You may request a copy
of all documents that are incorporated by reference into this prospectus
by
writing or calling Key Technology at the following
address: Attention: Gordon Wicher, Secretary, Key Technology, Inc.,
150 Avery Street, Walla Walla, Washington 99362, telephone (509)
529-2161. Copies of all documents requested will be provided without
charge (not including the exhibits to those documents, unless the exhibits
are
specifically incorporated by reference into those documents or this
prospectus).
This
summary highlights selected information from this prospectus and may not
contain
all the information that is important to you. Before making an
investment decision, you should read carefully the entire document, including
the "Risk Factors" section, and the information incorporated by
reference.
Key
Technology, Inc., headquartered in Walla Walla, Washington, is a worldwide
leader in the design and manufacture of process automation systems for
the food
processing and industrial markets. The Company’s products integrate
electro-optical inspection and sorting, specialized conveying and product
preparation equipment, which allow processors to improve quality, increase
yield
and reduce cost. Key has manufacturing facilities in Washington, Oregon
and the
Netherlands, and worldwide sales and service coverage.
Our
principal executive office is located at 150 Avery Street, Walla Walla,
Washington 99362. Our telephone number is (509)
529-2161. Our website is located at
http://www.key.net. Information contained on our website or
any other website does not constitute a part of this prospectus.
Where
You Can Find More Information
We
are
subject to the information reporting requirements of the Securities Exchange
Act
of 1934, as amended (the "Exchange Act"). In accordance with the
Exchange Act, we file annual, quarterly and periodic reports, proxy statements
and other information with the Securities and Exchange Commission (the "SEC"
or
the "Commission"). You may inspect and copy any document we file at
the SEC's public reference room at Room 1580, 100 F Street, N.E., Washington,
D.C. 20549. You may also purchase copies of our filings by writing to
the Public Reference Section of the SEC at Room 1580, 100 F Street, N.E.,
Washington, D.C. 20549. Information on the operation of the Public
Reference Room may be obtained by calling the SEC at
1-800-SEC-0330. Our SEC filings are also available on the SEC's
website at http://www.sec.gov.
Incorporation
Of Certain Documents By
Reference
This
prospectus is part of a
Registration Statement on Form S-8 that the Company filed with the SEC in
accordance with the requirements of Part I of Form S-3 and General Instruction
C
of the instructions to Form S-8. The SEC permits this filing to
"incorporate by reference" information that the Company previously filed
with
the SEC. This means the Company can disclose important information to
you by referring you to other documents that it has filed with the
SEC. The information that is incorporated by reference is considered
part of this prospectus, except for any information furnished to but not
filed
with the SEC. Information that the Company files later will
automatically update and may supersede this information. For further
information about the Company and the securities being offered, you should
refer
to the registration statement and the following documents that are incorporated
by reference:
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(a)
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The
Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 2006;
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(b)
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The
Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 2006, March 31, 2007, and June 30,
2007;
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(c)
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The
Company's Current Reports on Form 8-K filed on November 21, 2006,
December 22, 2006, January 31, 2007, February 8, 2007, February 12,
2007, March 21, 2007, April 30, 2007, May 3, 2007, July 9, 2007, and
August 9, 2007; and
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(d)
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The
description of the Company's common stock contained in the Company's
Registration Statement on Form 8-A filed with the Commission
on May 24,
1993 by which the Company's common stock was registered under
Section 12
of the Exchange Act, and the description of common stock incorporated
therein by reference to the Registration Statement on Form S-1
(Registration No. 333-6194) filed with the Commission on May
24, 1993, as
amended by Amendment No. 1 filed with the Commission on July 2, 1993
and Amendment No. 2 filed with the Commission on July 13, 1993
and
declared effective on July 15, 1993, under the caption "Description
of
Capital Stock" therein.
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All
documents filed by the Company
subsequent to those listed above with the SEC pursuant to Sections 13(a),
13(c),
14 or 15(d) of the Exchange Act (other than any report or portion thereof
furnished to but not filed with the SEC), prior to the filing of a
post-effective amendment which indicates that all securities offered hereby
have
been sold or which deregisters all securities then remaining unsold, shall
be
deemed to be incorporated by reference into this prospectus and to be a part
hereof from the date of filing of such documents. Any statement
contained in a document incorporated by reference herein shall be deemed
to be
modified or superseded for purposes of this prospectus to the extent that
a
statement contained herein or in any other subsequently filed document which
also is or is deemed to be incorporated by reference herein modifies or
supersedes such statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a
part
of this prospectus.
You
may request a copy of all
documents that are incorporated by reference into this prospectus by writing
or
calling us at the following address and
number: Attention: Gordon Wicher, Secretary, Key
Technology, Inc., 150 Avery Street, Walla Walla, Washington 99362, telephone
(509) 529-2161. We will provide copies of all documents requested
(not including exhibits to those documents, unless the exhibits are specifically
incorporated by reference into those documents or this prospectus) without
charge.
FORWARD-LOOKING
INFORMATION
This
reoffer prospectus and the documents incorporated herein by reference contain
forward-looking statements within the meaning of Section 27A of the Securities
Act of 1933, as amended (the "Securities Act"), and Section 21E of the Exchange
Act, including without limitation, statements as to expectations, beliefs
and
strategies regarding the future. Such forward-looking statements may
be included in, but are not limited to, press releases, oral statements made
with the approval of an authorized executive officer of the Company, or various
filings made by the Company with the SEC. These statements are only
predictions that are based, in part, on assumptions involving judgments about
future economic, competitive and market conditions and future business
decisions, all of which are difficult or impossible to predict accurately
and
many of which are beyond our control. Actual events or results may
differ materially. In evaluating these statements, you should
specifically consider various facts, including the risks outlined in the
"Risk
Factors" section. Although we believe that the expectations reflected
in the forward-looking statements are reasonable, we cannot guarantee future
results, levels of activity, performance or achievements. You are
cautioned not to place undue reliance on these forward-looking statements,
which
speak only as of the date on which they are made. We do not undertake
to update any of the forward-looking statements after the date of this
prospectus to conform these statements to actual results.
An
investment in our securities is
speculative and involves a high degree of risk. You should carefully consider
the risk factors described below, together with all of the other information
in
this prospectus, before making an investment decision. The trading price
of our
securities could decline due to any of these risks and uncertainties, and
you
may lose all or part of your investment.
Adverse
economic conditions in the food processing industry, either globally or
regionally, may adversely affect the Company’s revenues.
The
markets the Company serves,
particularly the food processing industry, are experiencing variable economic
conditions. The U.S. and European markets in the food processing industry
are
not growing and are experiencing consolidation. Additionally, varying consumer
demand, product supply, and plant capacity, most notably in the potato market,
could result in reduced or deferred capital equipment purchases for the
Company’s product lines. While the Company has reacted to these developments
with applications directed to the growing fresh vegetable and fruit industries
as well as the pharmaceutical and nutraceutical industries, loss of business,
particularly in the potato industry, would have a negative effect on the
Company’s sales and net earnings.
Competition
and advances in technology may adversely affect sales and
prices.
The
markets for the Company’s
products are highly competitive. Advances in technology may remove some barriers
to market entry, enabling additional competitors to enter the Company’s markets.
Such additional competition could force the Company to reduce prices to remain
competitive, and decrease the Company’s profits, having a material adverse
affect on the Company’s business and financial condition. There can be no
assurance that the Company will be able to continue to compete effectively
in
the future.
The
Company’s new products may not compete successfully in either existing or new
markets.
The
future success and growth of the
Company is dependent upon its ability to develop, market, and sell products
and
services in certain food processing markets as well as to introduce new products
into other existing and potential markets. There can be no assurance the
Company
can successfully penetrate these potential markets or expand into new
international markets with its current or new products.
The
limited availability and possible cost fluctuations of materials used in
the
Company’s products could adversely affect the Company’s
business.
Certain
of the components,
subassemblies and materials for the Company’s products are obtained from single
sources or a limited group of suppliers. Although the Company seeks to reduce
dependence on sole or limited source suppliers, the partial or complete loss
of
certain of these sources could have an adverse effect on the Company’s results
of operations and customer relationships. In addition, certain basic materials,
such as stainless steel, are used extensively in the Company’s product
fabrication processes. Such basic materials may also be subject to worldwide
shortages or price fluctuations related to the supply of or demand for raw
materials, such as nickel, which are used in their production by the Company’s
suppliers. A significant increase in the price or decrease in the availability
of one or more of these components, subassemblies or basic materials could
also
adversely affect the Company’s results of operations. In the recent past, the
high price of stainless steel worldwide resulted in higher component costs
and
reduced margins on certain product lines.
The
inability to protect its intellectual property, especially as the Company
expands geographically, may adversely affect the Company’s competitive
advantage.
The
Company’s competitive position may
be affected by its ability to protect its proprietary technology. The Company
has obtained certain patents and has filed a number of patent applications.
The
Company also anticipates filing applications for protection of its future
products and technology. There can be no assurance that any such patents
will
provide meaningful protection for the Company’s product innovations, or that the
issuance of a patent will give the Company any material advantage over its
competition in connection with any of its products. The Company may experience
additional intellectual property risks in international markets where it
may
lack patent protection. The patent laws of other countries, such as China,
may
differ from those of the U.S. as to the patentability of the Company’s products
and processes. Moreover, the degree of protection afforded by foreign patents
may be different from that of U.S. patents.
Intellectual
property-related litigation expenses and other costs resulting from infringement
claims asserted against the Company by third parties may adversely affect
the
Company’s results of operations and its customer
relations.
The
technologies used by the Company
may infringe the patents or proprietary technology of others. In the past,
the
Company has been required to initiate litigation to protect its patents.
The
cost of enforcing the Company’s patent rights in lawsuits that the Company may
bring against infringers or of defending the Company against infringement
charges by other patent holders or other third parties, including customers,
may
be high and could have an adverse effect on the Company’s results of operations
and its customer relations.
The
cost of compliance with the internal control requirements of Section 404
of the
Sarbanes-Oxley Act is expected to materially impact future
earnings.
The
Sarbanes-Oxley Act of 2002 as
well as rules subsequently implemented by the SEC and the NASDAQ Stock Market,
have required, and will require, changes to some of our accounting and corporate
governance practices, including a report on our internal controls as required
by
Section 404 of the Sarbanes-Oxley Act. Our compliance with Section 404 will
require that we incur substantial accounting expense and expend significant
management efforts. In addition to our current search for a Chief Financial
Officer, we may need to hire additional accounting and financial staff with
appropriate experience and technical accounting knowledge. The outcomes of
these
processes are uncertain. The increased costs associated with these compliance
activities will decrease our net income and may require us to reduce costs
in
other areas of our business. Additionally, if these requirements divert our
management’s attention from other business concerns, they could have a material
adverse effect on our business, financial condition and results of
operations.
We
are also required to evaluate our
internal controls under Section 404 of the Sarbanes-Oxley Act of 2002. Beginning
with the Annual Report on Form 10-K for the fiscal year ending September
30,
2007, we will be required to furnish a report by our management on our internal
control over financial reporting. Such report will contain, among other matters,
an assessment of the effectiveness of our internal control over financial
reporting as of the end of our fiscal year, including a statement as to whether
or not our internal control over financial reporting is effective. Such report
will also contain a statement that our independent registered public accounting
firm has issued an attestation report on management’s assessment of such
internal controls, and an independent opinion on the effectiveness of such
internal controls. We cannot predict with any certainty the outcome and content
of these reports.
Certain
selling shareholders may
offer and sell, from time to time, up to 61,338 shares of our common
stock. These shares of restricted stock were granted pursuant to the
Plan to the selling shareholders after the filing of the registration statements
of which this prospectus is a part, but prior to the filing of this
prospectus.
We
will pay the expenses of preparing
this prospectus and amending the related registration statement. All
brokerage commissions and other expenses incurred in connection with sales
by
the selling shareholders will be borne by such selling
shareholders.
We
will not receive any of the
proceeds from the sale of the shares covered by this prospectus.
The
table below sets forth the
following information regarding the beneficial ownership of common stock
held by
the selling shareholders as of August 31, 2007: (i) the name and
position of each selling shareholder who may sell common stock pursuant to
this
prospectus; (ii) the number of shares of common stock owned by each selling
shareholder as of the date above; (iii) the number of shares of common
stock offered under this prospectus, which includes shares of restricted
stock
granted to the selling shareholders pursuant to the Plan that are no longer
subject to restrictions or that may be subject to restrictions that have
not yet
lapsed; and (iv) the amount and percentage of common stock to be owned by
each such selling shareholder if such selling shareholder were to sell all
of
the shares of common stock which may offered pursuant to this
prospectus.
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Name
and Position of Selling Security Holder
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Number
of Shares
Owned
Prior to Offering(1)
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Number
of Shares to be Offered(2)
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Number
of Shares Owned/Percentage After Offering(3)
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Charles
H. Stonecipher, Chairman and Director
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14,331
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5,581
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8,750/*
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David
M. Camp, President and Chief Executive Officer, Director
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22,690
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21,602
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1,088/*
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John
E. Pelo, Director
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48,831
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5,581
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43,250/*
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Michael
L. Shannon, Director
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155,581
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5,581
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150,000/2.73%
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Donald
A. Washburn, Director
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51,781
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5,581
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46,200/*
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Richard
Lawrence, Director
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662
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662
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0/*
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Gordon
Wicher, Senior Vice President and General Manager of Americas and
Asia,
Secretary
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101,996
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12,500
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89,496/1.63%
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James
R. Brausen, Corporate Controller
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1,600
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1,000
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600/*
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Dennis
T. Hopwood, Director of Human Resources
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1,250
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1,250
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0/*
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James
D. Ruff, Vice President of Research and Development
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12,246
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2,000
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10,246/*
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Total
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410,968
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61,338
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N/A
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*
Less
than 1%
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(1)
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For
purposes of this table, the number of shares of common stock includes
all
shares of common stock that may be acquired upon the exercise of
options
or warrants that are exercisable within 60 days of the date of
this
prospectus.
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(2)
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For
purposes of this table, the number of shares of common stock offered
includes the number of shares of restricted stock granted to the
security
holder under the Plan, regardless of whether the restrictions on
such
shares of restricted stock have lapsed. The number of shares of
common stock offered does not include shares of common stock which
may be
acquired upon the exercise of options or shares of restricted stock
that
may be granted under the Plan in the future to the selling shareholders,
which information is not currently
known.
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(3)
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Applicable
percentage of ownership is based on 5,499,011 shares of common
stock
outstanding on August 31,
2007.
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The
selling shareholders have not
advised us of any specific plan for distribution of the shares offered hereby,
but it is anticipated that the shares will be sold from time-to-time by the
selling shareholders or by their pledgees, donees, transferees or other
successors in interest. Such sales may be made over-the-counter on
the Nasdaq Global Market at prices and at terms then prevailing or at prices
related to the then current market price, or in negotiated
transactions. In addition, any securities covered by this prospectus
which qualify for sale pursuant to Rule 144, promulgated under the
Securities Act, may be sold under Rule 144 rather than pursuant to this
prospectus. The shares may be sold by one or more of the
following: (i) a block trade in which the broker or dealer so
engaged will attempt to sell the shares as agent but may position and resell
a
portion of the block as principal to facilitate the transaction;
(ii) purchases by a broker or dealer for its account pursuant to this
prospectus; or (iii) ordinary brokerage transactions and transactions in
which the broker solicits purchases. In effecting sales, brokers or
dealers engaged by the selling shareholders may arrange for other brokers
or
dealers to participate. Brokers or dealers will receive commissions
or discounts from the selling shareholders in amounts to be negotiated
immediately prior to the sale. Such brokers or dealers may be deemed
to be "underwriters" within the meaning of the Securities Act in connection
with
such sales, and any commission received by them and any profit realized by
them
on the resales of shares as principals may be deemed underwriting compensation
under the Securities Act.
The
consolidated financial
statements incorporated into this prospectus by reference from the Company's
Annual Report on Form 10-K, filed with the SEC on December 13, 2006, have
been
audited by Grant Thornton LLP, an independent registered public accounting
firm,
as stated in their reports, which are incorporated herein by reference, and
have
been so incorporated in reliance upon the reports of such firm given upon
their
authority as experts in accounting and auditing. The consolidated
financial statements for the year ended September 30,
2004, incorporated in this prospectus by reference from the Company's
Annual Report on Form 10-K have been audited by Deloitte & Touche LLP, an
independent registered public accounting firm, as stated in their report,
which
is incorporated herein by reference, and has been so incorporated in reliance
upon the report of such firm given upon their authority as experts in accounting
and auditing.
DISCLOSURE
OF COMMISSION POSITION ON INDEMNIFICATION FOR SECURITIES
ACT LIABILITIES
Insofar
as indemnification for
liabilities arising under the Securities Act may be permitted to directors,
officers and controlling persons of the Company pursuant to the provisions
described in Part II, Item 6 of the Post-effective amendment to the Registration
Statement of which this reoffer prospectus forms a part, or otherwise, the
Company has been advised that in the opinion of the SEC such indemnification
is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable.
PART
II
INFORMATION
REQUIRED IN THE REGISTRATION STATEMENT
Item
3. Incorporation of Documents by Reference.
The
following documents filed by the
Company with the SEC are incorporated by reference into this registration
statement:
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(a)
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The
Company's Annual Report on Form 10-K for the fiscal year ended
September 30, 2006;
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(b)
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The
Company's Quarterly Reports on Form 10-Q for the quarters ended
December 31, 2006, March 31, 2007, and June 30,
2007;
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(c)
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The
Company's Current Reports on Form 8-K filed on November 21, 2006,
December 22, 2006, January 31, 2007, February 8, 2007,
February 12, 2007, March 21, 2007, April 30, 2007, May 3,
2007, July 9, 2007, and August 9, 2007;
and
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(d)
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The
description of common stock contained in the Company's Registration
Statement on Form 8-A filed with the Commission on May 24, 1993
by which
the Company's common stock was registered under Section 12 of the
Exchange
Act, and the description of common stock incorporated therein by
reference
to the Registration Statement on Form S-1 (Registration No. 333-6194)
filed with the Commission on May 24, 1993, as amended by Amendment
No. 1 filed with the Commission on July 2, 1993 and Amendment No. 2
filed with the Commission on July 13, 1993 and declared effective on
July 15, 1993, under the caption "Description of Capital Stock"
therein.
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All
documents filed by the Company subsequent to those listed above with the
Commission pursuant to Section 13(a), 13(c), 14 or 15(d) of the Exchange
Act,
prior to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference into
this
Registration Statement and to be a part hereof from the date of filing of
such
documents. Nothing in this Registration Statement shall be deemed to
incorporate by reference information furnished to but not filed with the
Commission. Any statement contained in a document incorporated by
reference herein shall be deemed to be modified or superseded for purposes
of
this Registration Statement to the extent that a statement contained herein
or
in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute a part of this
Registration Statement.
Item
4. Description of Securities.
Not
applicable.
Item
5. Interests of Named Experts and Counsel.
A
member of Tonkon Torp LLP, legal
counsel to the Company, is the Assistant Secretary of the Company and owns
17,500 shares of the Company's common stock.
Item
6. Indemnification of Directors and Officers
The
Oregon Business Corporation Act
(the "Act") authorizes the indemnification of a director or officer made
party
to a proceeding because the director or officer is or was a director or officer
against liability (including amounts paid in settlement) incurred in the
proceeding and against expenses with respect to the proceeding (including
attorney fees) if: (a) the conduct of the director or officer
was in good faith, (b) the director or officer reasonably believed that his
conduct was in the best interests of the corporation or at least not opposed
to
its best interests, (c) in the case of a criminal proceeding, the director
or officer had no reasonable cause to believe his conduct was unlawful,
(d) in the case of any proceeding by or in the right of the corporation,
unless a court otherwise determines, if such director or officer shall not
have
been adjudged liable, and (e) in connection with any other proceeding
charging improper personal benefit to the director or officer, unless a court
otherwise determines, in which the director or officer was not adjudged liable
on the basis that personal benefit was improperly received by the director
or
officer. The Company's Restated Articles of Incorporation, as
amended, and Restated Bylaws, as amended, allow the Company to indemnify
directors and officers to the fullest extent permissible by law.
The
Act further provides that the
articles of incorporation of a corporation may provide that no director shall
be
personally liable to a corporation or its shareholders for monetary damages
for
conduct as a director, except that such provision does not eliminate the
liability of a director (i) for any breach of the director's duty of
loyalty to the corporation or its shareholders, (ii) for acts or omissions
not in good faith or which involve intentional misconduct or a knowing violation
of the law, (iii) for any unlawful distribution as defined under the Act,
or (iv) for any transaction from which the director derived an improper
personal benefit. The Company's Restated Articles of Incorporation,
as amended, provide that, to the fullest extent permissible by law, no director
shall be personally liable to the Company or its shareholders for monetary
damages.
The
Company has entered into
indemnification agreements with each director and certain officers that
indemnify them to the full extent authorized or permitted by the
Act.
The
Company has purchased directors'
and officers' liability insurance. Subject to conditions, limitations
and exclusions in the policy, the insurance covers amounts required to be
paid
for a claim or claims made against directors and officers for any act, error,
omission, misstatement, misleading statement or breach of duty by directors
and
officers in their capacity as directors and officers of the
Company.
Item
7. Exemption from Registration Claimed.
Not
applicable.
Item
8. Exhibits.
The
Exhibit Index immediately
preceding the exhibits is incorporated herein by reference.
Item
9. Undertakings.
The
undersigned registrant hereby undertakes
(a) to
file, during any
period in which offers or sales are being made, a post-effective amendment
to
this registration statement to include any material information with respect
to
the plan of distribution not previously disclosed in the registration statement
or any material change to such information in the registration
statement;
(b) that,
for the purpose of
determining any liability under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration statement relating to
the
securities offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof;
(c) to
remove from
registration by means of a post-effective amendment any of the securities
being
registered which remain unsold at the termination of the offering.
The
undersigned registrant hereby undertakes that, for purposes of determining
any
liability under the Securities Act, each filing of the registrant's annual
report pursuant to Section 13(a) or Section 15(d) of the Exchange Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference
into the registration statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the offering of
such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
Insofar
as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the registrant
pursuant to the foregoing provisions, or otherwise, the registrant has been
advised that in the opinion of the Commission such indemnification is against
public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the registrant of expenses incurred
or paid by a director, officer or controlling person of the registrant in
the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being
registered, the registrant will, unless in the opinion of its counsel the
matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the registrant certifies
that
it has reasonable grounds to believe that it meets all of the requirements
for
filing on Form S-8 and has duly caused this Post-Effective Amendment No. 1
to the registration statements (Nos. 333-50130 and 333-128512) to be signed
on
its behalf by the undersigned, thereunto duly authorized, in the City of
Walla
Walla, State of Washington on September 11, 2007.
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KEY
TECHNOLOGY, INC.
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By
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/s/
David
M. Camp |
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David
M. Camp
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President
and Chief Executive Officer
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By
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/s/
James
R. Brausen |
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James
R. Brausen
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Corporate
Controller, Principal Financial and Accounting
Officer
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POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS that
each person whose signature appears below hereby constitutes and appoints
David
M. Camp his true and lawful attorney-in-fact and agent, with full power of
substitution, for him in any and all capacities, to sign any and all
registration statements on Form S-8 for the registration of the shares of
common
stock, no par value, of the Corporation to be issued pursuant to the 2003
Restated Employees' Stock Incentive Plan, and for the registration of the
shares
of common stock acquired by certain officers and directors of the Corporation
pursuant to the exercise of stock options, and to sign any and all amendments
or
post-effective amendments to such registration statement, including amendments
or supplements to the prospectus contained in any such registration statement
and the addition or amendment of exhibits and other documents in connection
therewith, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto such attorney and agent full power and authority to do any and all acts
and
things necessary or advisable in connection with such matters, and hereby
ratifying and confirming all that the attorney and agent, or his substitute
or
substitutes, may lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Post-Effective Amendment
No. 1 to registration statements Nos. 333-50130 and 333-128512 has been signed
by the following persons in the capacities and on the date
indicated.
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Signature
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Capacities
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Date
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Charles
H. Stonecipher |
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Chairman
and Director
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Charles
H. Stonecipher
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September
11, 2007
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David
M. Camp |
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President,
Chief Executive
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David
M. Camp
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Officer
and Director
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September
11, 2007
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| /s/
Richard
Lawrence |
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Director
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Richard
Lawrence
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September
11, 2007
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John
E. Pelo |
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Director
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John
E. Pelo
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September
11, 2007
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Director
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Michael
L. Shannon
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September
11, 2007
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Director
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Donald
A. Washburn
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September
11, 2007
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INDEX
TO
EXHIBITS
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Exhibit
Number
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Exhibit
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4.1
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Restated
Articles of Incorporation (filed as Exhibit 3.1 to the Registration
Statement on Form S-1 (Registration No. 33-63194) filed with the
Securities and Exchange Commission on May 24, 1993 and incorporated
herein
by reference)
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4.2
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Restated
Bylaws dated February 7, 2001 (filed as Exhibit 3.2 to the Form
10-Q filed
with the Securities and Exchange Commission on May 15, 2002 and
incorporated herein by reference)
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4.3
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2003
Restated Employees' Stock Incentive Plan (incorporated by reference
to
Appendix A to the Proxy Statement for the 2004 Annual Meeting of
Shareholders filed with the Securities and Exchange Commission
on January
5, 2004)
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Consent
of Deloitte & Touche LLP*
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Consent
of Grant Thornton LLP*
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24.1
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Power
of Attorney (included on the signature pages of this registration
statement)
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*
Filed
herewith
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