AGREEMENT
AGREEMENT, dated as of April 24, 2000 (this "AGREEMENT"),
among FMC Corporation, a Delaware corporation ("FMC"), Key Technology, Inc., an
Oregon corporation ("KEY"), KTC Acquisition Corp., an Oregon corporation and a
wholly owned subsidiary of Key ("SUB"), and Advanced Machine Vision Corporation,
a California corporation ("AMVC").
RECITALS
WHEREAS, Key, Sub and AMVC have entered into an Agreement and Plan of
Merger, made as of February 15, 2000, as amended as of February 25, 2000 (the
"MERGER AGREEMENT");
WHEREAS, FMC owns all of AMVC's Series B Preferred Stock, 119,106
shares of which are issued and outstanding (the "COMPANY SERIES B PREFERRED
STOCK"), owns an Option dated October 14, 1998 for the purchase of AMVC's Class
A Common Stock, has a right to designate a director on the AMVC board and has
rights under the Series B Purchase Agreement, the Registration Rights Agreement
and the Representative Agreement, in each case dated as of October 14, 1998;
WHEREAS, it is a condition to the obligations of the parties under the
Merger Agreement that the holder of the Company Series B Preferred Stock shall
have voted in favor of the Merger Agreement; and
WHEREAS, in order to, among other things, induce FMC to vote in favor
of the Merger Agreement and to relinquish its option and other valuable rights,
Key, Sub and AMVC have agreed to enter into this Agreement.
NOW, THEREFORE, in consideration of the promises and the covenants and
agreements set forth herein, the parties agree as follows:
1. MERGER AGREEMENT. (a) Key, Sub and AMVC hereby agree that,
effective with the execution and delivery of this Agreement, Sections 2.5 and
2.6 of the Merger Agreement are amended and restated to read as follows:
"2.5 CONVERSION AND EXCHANGE OF SHARES. The manner and basis of
converting at the Effective Time Company Common Stock into cash and shares
of Parent's Series B Convertible Preferred Stock, $10.00 par value, having
the rights and preferences set forth in the attached Exhibit 2.5A (the
"Series B Preferred") with the attached redeemable Warrant to purchase
shares of Parent's Common Stock in the form attached as Exhibit 2.5B, the
exchange of certificates therefor, the manner and basis of converting the
Company Series B Preferred Stock into Parent's Series C Convertible
Preferred Stock, $20.00 par value, having the rights and preferences set
forth in the attached Exhibit 2.5C (the "Series C Preferred") with the
attached redeemable Warrant to purchase shares of
Parent's Common Stock in the form attached as Exhibit 2.5B and the manner
and basis of converting Company Options outstanding at the Effective Time
shall be as set forth herein.
(a) CONVERSION OF SHARES.
(i) (A) Each share of Company Common Stock (both Class A and Class
B) issued and outstanding immediately prior to the Effective Time (except
Dissenting Shares) shall, by virtue of the Merger and without any action on
the part of the holder thereof, be converted into the right to receive
$1.00 in cash and one-tenth of a share of Series B Preferred, with each
share of Series B Preferred to be accompanied by a Warrant, redeemable at
any time by the holder for $2.50 in cash and exercisable at any time to
purchase .25 of a share of Parent's Common Stock at a price of $15.00 per
share (such Series B Preferred shares and attached Warrants to be issued
for each share of Company Common Stock constituting the "AMVC Common
Conversion Ratio").
(B) Each Dissenting Share shall be converted into the right to
receive payment from the Surviving Corporation with respect thereto in
accordance with the provisions of the CCL.
(ii) Each share of the Company Series B Preferred Stock outstanding
at the Effective Date shall, by virtue of the Merger and without any action
on the part of the holder thereof, be converted into the right to receive
one share of Series C Preferred, with each share of Series C Preferred to
be accompanied by a Warrant, redeemable at any time by the holder for $2.50
in cash and exercisable at any time to purchase .25 of a share of Parent's
Common Stock at a price of $15.00 per share (such Series C Preferred shares
and attached Warrants to be issued for each share of Company Series B
Preferred Stock constituting the "Series B Conversion Ratio" and, together
with the AMVC Conversion Ratio, the "Conversion Ratios").
(iii) Each share of Sub Common Stock issued and outstanding as of the
Effective Time, shall, by virtue of the Merger and without any action on
the part of Parent, the sole stockholder of Sub, be converted into one
share of legally and validly issued, fully paid and nonassessable Common
Stock, without par value, of the Surviving Corporation. The stock
certificate of Sub evidencing ownership of Sub Common Stock shall by virtue
of the Merger evidence ownership of Common Stock of the Surviving
Corporation.
(iv) In the event of any stock split, combination, reclassification,
recapitalization, exchange, stock dividend or other distribution payable in
Parent Common Stock with respect to shares of Parent Common Stock (or if a
record date with respect to any of the foregoing should occur) during the
period between the date of this Agreement and the Effective Time, then the
Conversion Ratios will be appropriately adjusted to reflect such stock
split, combination, reclassification, recapitalization, exchange, stock
dividend or other distribution.
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2.6 EXCHANGE OF CERTIFICATES; PAYMENT. Series B Preferred and
attached Warrants into which Company Common Stock shall be converted
pursuant to the Merger and Series C Preferred and attached Warrants into
which Company Series B Preferred Stock shall be converted pursuant to the
Merger shall be deemed to have been issued at the Effective Time. At the
Closing, Parent shall deliver to the Transfer Agent certificates evidencing
the number of shares of Series B Preferred and attached Warrants to which
that Stockholder is entitled under Section 2.5, together with the cash
payment applicable thereto. The Company will cause to be delivered such
transmittal letters, documents and instruments as Parent or Parent's
transfer agent may reasonably request, each in form reasonably acceptable
to Parent or such transfer agent. Parent shall also deliver to the Transfer
Agent certificates evidencing the number of shares of Series C Preferred
and attached Warrants to be issued pursuant to section 2.5(ii) above with
respect to any shares of Company Series B Preferred Stock outstanding on
the Effective Date."
(b) The parties agree that, at the Effective Time, the Option dated
October 14, 1998 for the purchase of Class A Common Stock of AMVC held by FMC
(the "FMC OPTION") shall be exchanged for an Option (the "KEY OPTION"),with an
identical term and an aggregate exercise price of $2.52 million, to receive
210,000 shares of Key's Series B Convertible Preferred Stock, par value $10 per
share (the "KEY SERIES B SHARES"), with an attached redeemable Warrant to
purchase 52,500 shares of Key's Common Stock at an exercise price of $15.00 per
share (the "KEY SERIES B WARRANTS"). The Key Series B Shares and the attached
Warrants shall be in the forms attached as Exhibits 2.5A and 2.5B, respectively,
to the Merger Agreement.
2. REPRESENTATIONS AND WARRANTIES.
(a) FMC represents and warrants to the other parties hereto as
follows:
(i) FMC is the record and beneficial owner of, and has good and
marketable title to, the Company Series B Preferred Stock. FMC has the sole
right to vote, and the sole power of disposition with respect to, the
Company Series B Preferred Stock, and none of the Company Series B
Preferred Stock is subject to any voting trust, proxy or other agreement,
arrangement or restriction with respect to the voting or disposition of
such Company Series B Preferred Stock, except as contemplated by the Series
B Preferred Stock Purchase Agreement dated as of October 14, 1998 (the
"SERIES B PURCHASE AGREEMENT") between AMVC and FMC and by this Agreement.
(ii) This Agreement has been duly authorized, executed and delivered
by FMC. Assuming the due authorization, execution and delivery of this
Agreement by the other parties hereto, this Agreement constitutes the valid
and binding agreement of FMC enforceable against FMC in accordance with its
terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application
which may affect the enforcement of creditors' rights generally and by
general equitable principles. The execution and delivery of this Agreement
by FMC does not and will not conflict with any agreement, order or other
instrument binding upon FMC, nor require FMC to make or obtain any
regulatory filing or approval other than
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filings, if any, required pursuant to the Securities Exchange Act of 1934,
as amended (the "EXCHANGE ACT").
(b) Key represents and warrants to FMC as follows:
(i) This Agreement has been duly authorized, executed and delivered
by Key and Sub. Assuming the due authorization, execution and delivery of
this Agreement by the other parties hereto, this Agreement constitutes the
valid and binding agreement of Key and Sub enforceable against Key and Sub
in accordance with its terms, except as may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium and other similar laws
of general application which may affect the enforcement of creditors'
rights generally and by general equitable principles. The execution and
delivery of this Agreement by Key and Sub does not and will not conflict
with any agreement, order or other instrument binding upon Key or Sub, nor
require Key or Sub to make or obtain any regulatory filing or approval
other than filings, if any, required pursuant to the Exchange Act.
(ii) The representations and warranties of Key contained in Article
4 of the Merger Agreement are true and correct in all respects as of the
date hereof and will be true and correct as of the Effective Time as if
made at the Effective Time. Key has delivered a true and correct copy of
the Parent Disclosure Letter to FMC.
(iii) Since September 30, 1999, there has not been a material adverse
change in the business, operations, properties, assets or condition of Key
and its subsidiaries (taken as a whole).
(iv) The Key Series C Convertible Preferred Stock, par value $20 per
share, to be issued to the holder of the Company Series B Preferred Stock
pursuant to the Merger (the "KEY SERIES C SHARES" and, together with the
Key Series B Shares, the "KEY PREFERRED SHARES"), the Warrants to purchase
Common Stock of Key attached to the Key Series C Shares (the "KEY SERIES C
WARRANTS" and, together with the Key Series B Warrants, the "KEY
WARRANTS"), the Key Option, the Key Series B Shares and the Key Series B
Warrants will be duly authorized, validly issued, fully paid and
non-assessable and free of preemptive rights. The shares of Common Stock of
Key issuable upon conversion of the Key Preferred Shares or exercise of the
Key Warrants (the "UNDERLYING SHARES") have been duly and validly
authorized and, upon conversion of the Key Preferred Shares or exercise of
the Key Warrants, will be validly issued, fully paid and nonassessable and
free of preemptive rights. As of the Effective Time, the Key Series B
Preferred Shares, the Key Warrants and the Underlying Shares shall have
been registered under the Securities Act of 1933, as amended (the
"SECURITIES ACT"), and freely tradeable in the hands of FMC. As of the
Effective Time, the Underlying Shares shall have been authorized for
listing on the Nasdaq National Market.
(v) The Board of Directors of Key in approving this Agreement and
the provisions contained herein has taken all action necessary or advisable
to render the restrictions contained in any "fair price," "business
combination," "control share acquisition," "super-majority voting" statute
or other similar anti-takeover statute or
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regulation or provision of Key's charter or by-laws that may be applicable
to FMC's right to receive Key securities at the Effective Time, and such
restrictions are, inapplicable to this Agreement, the provisions contained
herein and the transactions contemplated hereby.
(vi) The Board of Directors of Key will not declare FMC to be an
Adverse Person under that certain Rights Agreement, dated as of June 20,
1998 (the "RIGHTS AGREEMENT"), between Key and ChaseMellon Shareholder
Services, L.L.C., as rights agent, nor shall a Distribution Date or the
separation of the Rights occur thereunder as a result of the execution or
delivery of this Agreement, the public announcement of any such execution
and delivery or the performance or agreement by Key of its obligations and
covenants contained in this Agreement.
(c) AMVC represents and warrants to FMC as follows:
(i) This Agreement has been duly authorized, executed and delivered
by AMVC. Assuming the due authorization, execution and delivery of this
Agreement by the other parties hereto, this Agreement constitutes the valid
and binding agreement of AMVC enforceable against AMVC in accordance with
its terms, except as may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium and other similar laws of general application
which may affect the enforcement of creditors' rights generally and by
general equitable principles. The execution and delivery of this Agreement
by AMVC does not and will not conflict with any agreement, order or other
instrument binding upon AMVC, nor require AMVC to make or obtain any
regulatory filing or approval other than filings, if any, required pursuant
to the Exchange Act.
3. OTHER COVENANTS OF FMC, KEY AND AMVC. (a) Until the termination
of this Agreement in accordance with Section 6, FMC agrees and, with respect to,
(ii) and (iii) below, AMVC agrees as follows:
(i) At the AMVC Shareholders Meeting (including any adjournment or
postponement thereof), FMC shall vote (or cause to be voted) any AMVC
voting securities it may hold in favor of the Merger Agreement.
(ii) At the Effective Time, the Series B Purchase Agreement (except
for Section 8.4 thereof which shall survive indefinitely) and the
Registration Rights Agreement dated as of October 14, 1998 between AMVC and
FMC shall terminate and be of no further force or effect.
(iii) At the Effective Time, the Representative Agreement dated as of
October 14, 1998 (the "REPRESENTATIVE AGREEMENT") between AMVC and FMC
shall terminate and be of no further force or effect.
(b) Key agrees as follows:
(i) Key will cause the Key Series B Preferred Shares, the Key
Warrants and the Underlying Shares to be registered under the Securities
Act and freely tradeable in the hands of FMC. Key shall cause the
Underlying Shares to be authorized for listing on the
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Nasdaq National Market. Key shall, at all times, reserve and keep available
out of its authorized but unissued shares of Common Stock, such number of
shares of Common Stock as shall from time to time be sufficient to effect
the conversion of the Key Preferred Shares and the exercise of the Key
Warrants.
(ii) The Board of Directors of Key shall take all action necessary
or advisable to render the restrictions contained in (A) any "fair price,"
"business combination," "control share acquisition," "super-majority
voting" statute or other similar antitakeover statute or regulation or
provision of Key's charter or by-laws or (B) the Rights Agreement
inapplicable to this Agreement, the provisions contained herein and the
transactions contemplated hereby. Key shall not take any action to impede
or otherwise frustrate this Agreement, the provisions contained herein and
the transactions contemplated hereby or to any subsequent transactions by
FMC involving Common Stock of Key.
4. RELEASE AND WAIVER. Each of Key and AMVC, for itself and its
subsidiaries, predecessors, successors and assigns, and for each of its and
their respective directors, officers, employees, managers, agents, shareholders
and attorneys acting as such (collectively, the "Releasing Persons"), does
hereby forever and unconditionally release, acquit and discharge FMC and its
subsidiaries, stockholders, affiliates, directors, officers, employees, agents,
attorneys and consultants, and the predecessors, successors and assigns of each
of them (collectively, the "Released Persons"), and FMC for itself and all such
persons releases Key and AMVC and all such persons from any and all claims,
controversies, covenants, representations, warranties, demands, promises,
contracts, agreements, causes of action, suits, liabilities, obligations, debts
or other responsibility of whatever kind or nature, whether known or unknown,
whether in law or in equity, which the Releasing Persons ever had, now have or
may have against any Released Person for any matter, thing, event, action or
omission which in any way, directly or indirectly, relates to or arises out of
or is connected to (i) the Merger Agreement, the Company Series B Preferred
Stock or the Representative Agreement (including the provisions of Section 2(8)
thereof), (ii) any act or omission by any representative of FMC (including Xxx
Xxxxxx, Xxxxxxx Xxxxx and Xxxx X. Xxxxx) in respect of matters pertaining to
AMVC or (iii) the operation of the businesses operated by AMVC, or any other
acts, facts, omissions, transactions, occurrences or other subject matters
relating thereto, arising therefrom or in connection therewith; PROVIDED,
HOWEVER, that nothing contained herein shall release any obligation created
under this Agreement or claim to enforce it.
5. INDEMNIFICATION. Key agrees to pay, perform and discharge and
indemnify and hold harmless each FMC Group Member from and against any and all
Expenses incurred by such FMC Group Member in connection with or arising from:
(i) any claim, action, suit or proceeding made by stockholders or former
stockholders of AMVC in their capacities as such or putatively on behalf of
AMVC, in each case relating to or arising out of the Merger Agreement, this
Agreement or any of the transactions contemplated thereby or hereby or (ii) any
inaccuracy in or breach of any of the representations or warranties made by Key
herein or any breach by Key of its covenants or agreements contained herein,
including all efforts taken by FMC to collect payments due it under this Section
5. For purposes of this Agreement, "FMC Group Member" means FMC, its
subsidiaries and its and their respective directors, officers, employees,
agents, attorneys and consultants. "Expenses" means any and all reasonable
expenses incurred
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in connection with investigating, defending or asserting any claim, action, suit
or proceeding (including settlement costs, court filing fees, court costs,
arbitration fees or costs, witness fees and reasonable fees and disbursements of
legal counsel, investigators, expert witnesses, accountants and other
professionals).
6. TERMINATION. The obligations of the parties hereunder shall
terminate upon the termination of the Merger Agreement for any reason, except
for Sections 4 and 5 hereof which shall survive any termination of obligations
hereunder indefinitely. In addition, FMC shall have the right to terminate its
obligations hereunder if (a) a material Breach of any provision of this
Agreement has been committed by any other party hereto, and in any such case
such Breach has not been waived by FMC or is not cured by such other party
hereto within ten days following receipt of notice of the Breach, (b) the Merger
Agreement shall have been amended without the prior written approval of FMC or
any provision in the Merger Agreement shall have been waived by AMVC without the
prior written approval of FMC or (c) if the Merger is enjoined by the order of
any court of competent jurisdiction if such order remains in effect for a period
of 30 or more calendar days; provided, however, that, notwithstanding clause
(b), the Merger Agreement may be amended without the consent of FMC to increase
the consideration being paid to holders of AMVC Common Stock in the Merger so
long as there is a proportionate increase to the consideration being paid with
respect to the Company Series B Preferred Stock and in exchange for the FMC
Option.
7. FURTHER ASSURANCES. The parties hereto will, from time to time,
execute and deliver, or cause to be executed and delivered, such additional or
further consents, documents and other instruments as any party may reasonably
request for the purpose of effectively carrying out the transactions
contemplated by this Agreement.
8. SUCCESSORS, ASSIGNS AND TRANSFEREES BOUND. Any successor,
assignee or transferee (including a successor, assignee or transferee as a
result of the death of any party hereto who is an individual, such as an
executor or heir) shall be bound by the terms hereof, and the parties hereto
shall take any and all actions necessary to obtain the written confirmation from
such successor, assignee or transferee that it is bound by the terms hereof.
9. REMEDIES. Each of the parties hereto acknowledges that money
damages would be both incalculable and an insufficient remedy for any breach of
this Agreement by it, and that any such breach would cause the other parties
irreparable harm. Accordingly, each of the parties hereto agrees that in the
event of any breach or threatened breach of this Agreement, the other parties,
in addition to any other remedies at law or in equity it may have, shall be
entitled, without the requirement of posting a bond or other security, to
equitable relief, including injunctive relief and specific performance.
10. SEVERABILITY. The invalidity or unenforceability of any
provision of this Agreement in any jurisdiction shall not affect the validity or
enforceability of any other provision of this Agreement in such jurisdiction, or
the validity or enforceability of any provision of this Agreement in any other
jurisdiction.
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11. AMENDMENT. This Agreement may be amended only by means of a
written instrument executed and delivered by all of the parties hereto.
12. GOVERNING LAW. This Agreement shall be governed by, and
construed in accordance in accordance with, the laws of the State of Oregon,
regardless of the laws that might otherwise govern under applicable principles
of conflicts of laws thereof.
13. CAPITALIZED TERMS. Capitalized terms used in this Agreement
that are not defined herein shall have such meanings as set forth in the Merger
Agreement.
14. COUNTERPARTS. For the convenience of the parties, this
Agreement may be executed in counterparts, each of which shall be deemed an
original, but all of which together shall constitute one and the same
instrument.
15. NO LIMITATION ON ACTIONS OF XXXX X. XXXXX AS DIRECTOR.
Notwithstanding anything to the contrary in this Agreement, nothing in this
Agreement is intended or shall be construed to require Xxxx X. Xxxxx to take or
in any way limit any action that Xxxx X. Xxxxx may take to discharge his
fiduciary duties as a director of AMVC.
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IN WITNESS WHEREOF, FMC, Key, Sub and AMVC have caused this Agreement
to be duly executed as of the date first written above.
FMC CORPORATION
By: /s/ Xxxxxxx X. Xxxxxx, Xx.
----------------------------
Name: Xxxxxxx X. Xxxxxx, Xx.
Title: Vice President
KEY TECHNOLOGY, INC.
By: /s/ X. X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: Chairman, President, CEO
KTC ACQUISITION CORP.
By: /s/ X. X. Xxxxxx
----------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
ADVANCED MACHINE VISION
CORPORATION
By: /s/ Xxxx Xxxxx
----------------------------
Name: Xxxx Xxxxx
Title: CFO
