EXHIBIT 10
AGREEMENT DATED APRIL 24, 2000 AMONG AMVC, KEY, KTC AND FMC
AGREEMENT
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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.
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 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 tradable 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 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
tradable in the hands of FMC. Key shall cause the Underlying Shares to be
authorized for listing on the 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 ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇) 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 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.
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 ▇▇▇▇ ▇. ▇▇▇▇▇ as Director. Notwithstanding
anything to the contrary in this Agreement, nothing in this Agreement is
intended or shall be construed to require ▇▇▇▇ ▇. ▇▇▇▇▇ to take or in any way
limit any action that ▇▇▇▇ ▇. ▇▇▇▇▇ may take to discharge his fiduciary duties
as a director of AMVC.
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/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
KEY TECHNOLOGY, INC.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Chairman and CEO
KTC ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
ADVANCED MACHINE VISION CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Chief Executive Officer