EXHIBIT 2.2
AGREEMENT REGARDING TENDER OFFER
KEY TECHNOLOGY, INC. ("Key"), KTC ACQUISITION CORP. and ADVANCED MACHINE
VISION CORPORATION ("AMVC") entered into an Agreement and Plan of Merger
effective February 15, 2000 (the "Merger Agreement"). In connection with the
merger, AMVC's Board of Directors has requested Key to make a tender offer for
outstanding shares of AMVC Common Stock, offering to each AMVC common
stockholder the consideration to be received in the merger. Key and AMVC wish to
enter into this Agreement in connection with the proposed tender offer.
Capitalized terms used herein which are not defined in this Agreement have the
meaning ascribed to them in the Merger Agreement.
The parties accordingly agree as follows:
1. Subject to the terms of this Agreement, Key agrees that if a commitment
to vote for the Merger Agreement cannot be obtained from the holder of AMVC's
outstanding Series B Preferred Stock by March 31, 2000, Key will promptly
thereafter make an offer for the outstanding shares of AMVC Common Stock (the
"Shares"), subject and pursuant to the terms and conditions of the offer
attached as Exhibit A (the "Offer").
2. AMVC agrees to pay all fees and costs associated with the Offer, whether
incurred by Key or by AMVC. All requests for reimbursement of such fees and
costs which are submitted to AMVC's chief financial officer by Key's chief
executive officer or its chief financial officer will be paid by AMVC within
five business days of receipt of the request. The parties will continue to pay
their own fees and costs in connection with the Merger Agreement, and the
related S-4 Registration Statement.
3. AMVC represents that its Board of Directors has authorized and approved
this Agreement by a vote which includes not more than one director voting
against or abstaining from the vote, and AMVC will supply Key a certificate of
the Secretary of AMVC certifying to such Board vote.
4. Nothing in this Agreement is meant to modify in any way the terms and
conditions of the Merger Agreement, including without limitation any of the
provisions of Section 11.1 of the Merger Agreement, except that the Offer by Key
will not constitute a tender offer for purposes of Section 10.1(d) of the Merger
Agreement. Sections 11.2 through 11.13 of the Merger Agreement are incorporated
herein by reference.
5. Unless the parties mutually otherwise determine, the parties will use
their best efforts to complete and file with the Securities and Exchange
Commission the Form S-4 Registration Statement contemplated in the Merger
Agreement as soon as practicable.
EXECUTED this 7th day of March, 2000.
KEY TECHNOLOGY, INC. ADVANCED MACHINE VISION CORPORATION
By ___________________________ By ________________________________
Xxxxxx X. Xxxxxx, President Xxxxxxx X. Xxxxx, President
EXHIBIT A TO
AGREEMENT REGARDING TENDER OFFER
1. The Offer.
(a) Subject to the provisions hereof and the Merger Agreement, Key
shall commence, within the meaning of Rule 14d-2 under the Securities
Exchange Act of 1934, as amended (together with the rules and regulations
promulgated thereunder, the "Exchange Act"), the Offer to purchase all
outstanding Shares with each Share to receive the consideration to be paid
pursuant to the terms of the Merger Agreement. The obligation to commence
the Offer and pay for any Shares tendered pursuant to the Offer shall be
subject to the conditions set forth herein (the "Conditions") and subject
to the rights of Key to terminate the Agreement Regarding Tender Offer in
the event of termination of the Merger Agreement. Key expressly reserves
the right to modify the terms of the Offer, except that, without the
consent of AMVC, Key shall not (i) reduce the number of Shares subject to
the Offer, (ii) impose any other conditions to the Offer other than the
Conditions or modify the Conditions (other than to waive any Conditions to
the extent permitted by this Agreement), (iii) except as provided in the
next sentence, extend the Offer, or (iv) change the form of consideration
payable in the Offer. Notwithstanding the foregoing, Key may (i) extend the
Offer, if at the scheduled or extended expiration date of the Offer any of
the Conditions shall not be satisfied or waived, until such time as such
conditions are satisfied or waived, (ii) extend the Offer for any period
required by any rule, regulation, interpretation or position of the
Securities and Exchange Commission (the "SEC") or the staff thereof
applicable to the Offer, and (iii) extend the Offer for any reason on one
or more occasions for an aggregate period of not more than 15 business days
beyond the latest expiration date that would otherwise be permitted under
clause (i) or (ii) of this sentence, in each case subject to the right of
Key or AMVC to terminate the Agreement Regarding Tender Offer pursuant to
the terms hereof. Key agrees that if at any scheduled expiration date of
the Offer, either of the conditions set forth in paragraphs 3(d) and 3(e)
below shall not have been satisfied, but at such scheduled expiration date
all the other conditions of Section 3 shall then be satisfied, at the
request of AMVC (confirmed in writing), Key shall extend the Offer for a
reasonable period to permit AMVC the right to cure such failure of
condition subject to the right of Key or AMVC to terminate the Offer and
the Merger Agreement pursuant to the terms hereof and thereof. Subject to
the terms and conditions of the Offer, Key shall pay for all Shares validly
tendered and not withdrawn pursuant to the Offer as soon as it is legally
permitted to do so under applicable law and pay for such Shares promptly.
Any obligations of Key under the terms of the Offer will not apply to any
transactions subsequent to the purchase of Shares tendered in the Offer.
(b) On the date of commencement of the Offer, Key shall file with the
SEC a tender offer statement on Schedule TO (together with any supplements
or amendments thereto, the "Schedule TO") with respect to the Offer, which
shall contain an offer to purchase and a related letter of transmittal and
summary advertisement (such Schedule TO and the documents included therein
pursuant to which the Offer will be made, together with any supplements or
amendments thereto, the "Offer Documents"), and Key shall cause to be
disseminated the Offer Documents to holders of Shares as and to the extent
required by applicable Federal securities laws. Key and AMVC each agrees
promptly to correct any information provided by it for use in the Offer
Documents if and to the extent that such information shall have become
false or misleading in any material respect, and Key further agrees to take
all steps necessary to cause the Schedule TO as so corrected to be filed
with the SEC and the other Offer Documents as so corrected to be
disseminated to holders of Shares, in each case as and to the extent
required by applicable Federal securities laws. AMVC and its counsel shall
be given reasonable opportunity to review and comment upon the Offer
Documents prior to their filing with the SEC or dissemination to the
shareholders of AMVC. Key agrees to provide AMVC and its counsel any
comments Key may receive from the SEC or its staff with respect to the
Offer Documents promptly after the receipt of such comments and to
cooperate with AMVC and its counsel in responding to any such comments.
2. Participation by AMVC.
(a) AMVC hereby approves of the Offer and represents and warrants that
the Board of Directors of AMVC has determined that this Agreement and the
transactions contemplated hereby, including each of the Offer and the
Merger, are fair to and in the best interests of the holders of the Shares,
and resolved to recommend that the shareholders of AMVC accept the Offer;
provided, however, that such recommendation may be withdrawn, modified or
amended in connection with a Superior Proposal as defined in the Merger
Agreement. AMVC hereby consents to the inclusion in the Offer Documents of
the recommendation of AMVC's Board of Directors.
(b) On the date the Offer Documents are filed with the SEC, AMVC shall
file with the SEC a Solicitation/Recommendation Statement on Schedule 14D-9
with respect to the Offer (such Schedule 14D-9, as amended from time to
time, the "Schedule 14D-9") containing the recommendation described in
Section 2(a), and AMVC shall cause to be disseminated the Schedule 14D-9 to
holders of Shares as and to the extent required by applicable Federal
securities laws. Each of AMVC and Key agrees promptly to correct any
information provided by it for use in the Schedule 14D-9 if and to the
extent that such information shall have become false or misleading in any
material respect, and AMVC further agrees to take all steps necessary to
amend or supplement the Schedule 14D-9 and to cause the Schedule 14D-9 as
so amended or supplemented to be filed with the SEC and disseminated to
holders of Shares, in each case as and to the extent required by applicable
Federal securities laws. Key and its counsel shall be given reasonable
opportunity to review and comment upon the Schedule 14D-9 prior to its
filing with the SEC or dissemination to shareholders of AMVC. AMVC agrees
to provide Key and its counsel any comments AMVC or its counsel may receive
from the SEC or its staff with respect to the Schedule 14D-9 promptly after
the receipt of such comments and to cooperate with Key and its counsel in
responding to any such comments.
(c) In connection with the Offer and the Merger, AMVC shall direct its
transfer agent or agents to furnish Key promptly with mailing labels
containing the names and addresses of the record holders of Shares as of a
recent date and of those persons becoming record holders subsequent to such
date, together with copies of all lists of shareholders, security position
listings and computer files and all other information in AMVC's possession
or control, to the extent reasonably available to AMVC, regarding the
beneficial owners of Shares and any securities convertible into Shares, and
shall furnish to Key such information and assistance (including updated
lists of shareholders, security position listings and computer files) as
Key may reasonably request in communicating the Offer to AMVC's
shareholders. Subject to the requirements of applicable law, and except for
such steps as are necessary to disseminate the Offer Documents and any
other documents necessary to consummate the Merger, Key and its agents
shall hold in confidence the information contained in any such labels,
listings and files, will use such information only in connection with the
Offer and the Merger and if the Merger Agreement shall be terminated, will,
upon request, deliver, and will use their best efforts to cause their
agents to deliver, to AMVC all copies of such information then in their
possession or control.
(d) Before commencing the Offer, all officers and all directors of
AMVC other than the FMC Corporation representative will have executed an
agreement in the form of the attached Schedule 1 agreeing to tender their
shares in the Offer and SRC Vision Inc. shall have sent a notice of
termination under the October 14, 1998 Representative Agreement previously
entered into with FMC Corporation.
3. Conditions of the Offer.
Notwithstanding any other term of the Offer or this Agreement, Key shall
not be required to accept for payment or, subject to any applicable rules and
regulations of the SEC, including Rule 14e-1(c) under the Exchange Act (relating
to Key's obligation to pay for or return tendered Shares after the termination
or withdrawal of the Offer), to pay for any Shares tendered pursuant to the
Offer unless there shall have been validly tendered and not withdrawn prior to
the expiration of the Offer not less than 9,590,000 Shares. Furthermore,
notwithstanding any other term of the Offer or this Agreement, Key shall not be
required to accept for payment or, subject as aforesaid, to pay for any Shares
not theretofore accepted for payment or paid for, and may terminate the Offer
if, at any time on or after the date of this Agreement and before the acceptance
of such Shares for payment or the payment therefor, any of the following
conditions exists (other than as a result of any action or inaction of Key or
any of its subsidiaries that constitutes a breach of this Agreement):
(a) There shall be pending by any governmental entity any suit, action
or proceeding (i) challenging the acquisition by Key of any Shares under
the Offer, seeking to restrain or prohibit the making or consummation of
the Offer or the Merger or the performance of any of the other transactions
contemplated by this Agreement, the Merger Agreement, or seeking to obtain
from AMVC or Key any damages that would have a Material Adverse Effect on
AMVC or Key, (ii) seeking to prohibit or materially limit the ownership or
operation of AMVC by Key or its subsidiaries or to compel AMVC or Key to
dispose of or hold separate any material portion of the business or assets
of AMVC or Key and their respective subsidiaries, taken as a whole, as a
result of the Offer or any of the other transactions contemplated by this
Agreement or the Merger Agreement, (iii) seeking to impose material
limitations on the ability of Key to acquire or hold, or exercise full
rights of ownership of, any Shares to be accepted for payment pursuant to
the Offer, including the right to vote such shares on all matters properly
presented to the shareholders of AMVC, (iv) seeking to prohibit Key or any
of its subsidiaries from effectively controlling in any material respect
any material portion of the business or operations of AMVC and its
subsidiaries or (v) which otherwise is reasonably likely to have a Material
Adverse Effect on AMVC.
(b) There shall be enacted, entered, enforced, promulgated or deemed
applicable to the Offer or the Merger by any Governmental Entity any
statute, rule, regulation, judgment, order or injunction, that is
reasonably likely to result, directly or indirectly, in any of the
consequences referred to in clauses (i) through (v) of paragraph (a) above.
(c) (i) The Board of Directors of AMVC or any committee thereof shall
have withdrawn or modified in a manner adverse to Key its approval or
recommendation of the Offer or the Merger or approved or recommended any
Superior Proposal or tender offer by a third party, or, upon the request of
Key, failed to reaffirm its approval or recommendation of the Offer or the
Merger, (ii) AMVC shall have entered into any agreement with respect to any
Superior Proposal, or (iii) the Board of Directors of AMVC or any committee
thereof shall have resolved to take any of the foregoing actions.
(d) Any of the representations and warranties of AMVC set forth in the
Merger Agreement shall not be true and correct at the scheduled or extended
expiration of the Offer, except where the failure of such representations,
individually or in the aggregate, to be so true and correct would not have
a Material Adverse Effect on AMVC.
(e) AMVC shall have failed to perform in any material respect any
material obligation or to comply in any material respect with any material
agreement or covenant of AMVC to be performed or complied with by it under
this Agreement or the Merger Agreement.
The foregoing conditions are for the sole benefit of Key and may, subject
to the terms of this Agreement, be waived by Key in whole or in part at any time
and from time to time in its sole discretion. The failure by Key at any time to
exercise any of the foregoing rights shall not be deemed a waiver of any such
right, the waiver of any such right with respect to particular facts and
circumstances shall not be deemed a waiver with respect to any other facts and
circumstances and each such right shall be deemed an ongoing right that may be
asserted at any time and from time to time.
Schedule 1 to Exhibit A to Agreement
Regarding Tender Offer
AGREEMENT TO TENDER SHARES
The undersigned is a director or officer of Advanced Machine Vision
Corporation. I have reviewed, and I approve of, the Agreement Regarding Tender
Offer entered into between Key Technology, Inc. ("Key") and Advanced Machine
Vision Corporation ("AMVC") dated the 29th day of February, 2000 (the "Tender
Offer Agreement").
As an inducement to Key to make the tender offer (the "Offer"), the
undersigned hereby individually represents and covenants that if the tender as
described in the Tender Offer Agreement is made by Key, the undersigned will (i)
recommend to the shareholders of AMVC to accept Key's offer, subject to the
provisions of Section 2(a) of Exhibit A to the Tender Offer Agreement and (ii)
tender in response to the Offer all AMVC shares owned by the undersigned at the
date hereof or any date prior to expiration of the Offer, and use his best
efforts to cause the tender in response to the Offer of all shares of AMVC owned
by any affiliate of the undersigned individual.
This document is being executed on the express understanding that the
execution of similar agreements by all of the AMVC directors [other than the FMC
representative on the Board] is a prerequisite to commencement of the tender
offer by Key pursuant to the terms of the Tender Offer Agreement, and that Key
is relying upon such agreements in initiating the tender.
In the event that Key terminates the Offer (other than due to the breach of
the terms of this Agreement by AMVC), or upon the expiration date of the Offer,
this Agreement will have no further force or effect.
EXECUTED this _______ day of March, 2000.
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