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EXHIBIT 5
EXECUTION
THIRD AMENDMENT
THIS THIRD AMENDMENT (the "Amendment") is entered into as of October __,
1999 by and among MacDermid, Incorporated, a Connecticut corporation ("Buyer"),
MCD Acquisition Corp., a Delaware corporation and wholly owned subsidiary of
Buyer ("Merger Sub"), PTI, Inc., a Delaware corporation ("Seller"), and Citicorp
Venture Capital, Ltd., a New York corporation ("CVC"), to amend that certain
Plan and Agreement of Merger entered into as of February 18, 1999 and amended by
the First Amendment thereto (the "First Amendment") dated as of July 27, 1999
and the Second Amendment thereto (the "Second Amendment") dated as of September
13, 1999 (as further amended hereby, the "Merger Agreement"), by and among
Buyer, Merger Sub, Seller and CVC. Buyer, Merger Sub, Seller and CVC are
collectively referred to as the "Parties." Any capitalized term used in this
Amendment and not otherwise defined shall have the meaning ascribed to that term
in the Merger Agreement.
WHEREAS, the Parties desire to amend the Merger Agreement to, among other
things, adjust the number of Buyer Shares issuable in connection with the Merger
and to extend the date on which the Parties may terminate the Merger Agreement;
NOW THEREFORE, in consideration of the mutual agreements set forth herein
and other good and valuable consideration the receipt and sufficiency of which
is hereby acknowledged the Parties agree as follows:
A. The Merger Agreement is hereby amended, effective as of the date
hereof:
1. By deleting Section 2.4(e) of the Merger Agreement in its
entirety and substituting in the place thereof the following:
(e) Conversion of Seller Shares. Subject to the provisions of Section
2.4(h), at and as of the Effective Time, (i) each holder of Seller
Preferred Shares then outstanding shall by virtue of the Merger be
entitled to receive that number of Buyer Shares, rounded to the
nearest thousandth, equal to the quotient obtained by dividing (X) the
aggregate liquidation value of the Preferred Shares held by such
holder plus any and all accumulated and unpaid dividends thereon to
but not including the Effective Time by (Y) the Current Market Price
as of the Closing Date (the Buyer Shares delivered pursuant to this
Section 2.4(e)(i) to all holders of Seller Preferred Shares being
collectively referred to as the "Preferred Exchange Shares"); and (ii)
each holder of Seller Common Shares then outstanding, other than any
holder of Dissenting Shares, shall by virtue of the Merger be entitled
to receive that number of Buyer Shares, rounded to the nearest
thousandth, which is equal to the product of (X) the Seller Common
Ratio applicable to such holder of Seller Common Shares multiplied by
(Y) Seven Million (7,000,000) minus the aggregate number of the
Preferred Exchange Shares. After the Closing, there shall be no
transfers on the stock transfer books of Seller Shares which were
issued and
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outstanding at the Effective Time and converted pursuant to the
provisions of this Section 2.4(e). After the Effective Time,
holders of certificates of Seller Shares shall cease to be, and
shall have no rights as, stockholders of Seller, other than to
receive Buyer Shares into which such Seller Shares have been
converted and, if applicable, fractional share payments pursuant
to the provisions hereof. Schedule 2.4(e) to this Agreement
illustrates the distribution pursuant to this Agreement of the
Buyer Shares and the Buyer Warrants (including the Escrow Shares
and the Escrow Warrant) among, respectively, the Seller
Stockholders and holder of the CMP Warrant (which is the only
option, warrant or similar right to acquire Seller Shares that is
outstanding as of the date of this Agreement), assuming solely
for purposes of that presentation that (i) there are no
Dissenting Shares, (ii) there are no accrued and unpaid dividends
on the Seller Preferred Shares as of the Closing Date, and (iii)
the Current Market Price as of the Closing Date is equal to
$33.375.
2. By deleting Schedule 2.4(e) attached to the Merger Agreement in
its entirety and substituting in the place thereof the Schedule 2.4(e) attached
hereto.
3. By deleting Section 2.4(h) of the Merger Agreement in its
entirety and substituting in the place thereof the following:
(h) Escrow Shares. At the Closing, CVC and the Escrow Agent
shall enter into the Escrow Agreement, which Escrow Agreement is
intended to serve as an adjustment to the aggregate amount of
consideration payable to the holders of Seller Common Shares and
the CMP Warrant in connection with the Merger. At the Closing,
there shall be withheld from each holder of Seller Common Shares
a number of Buyer Shares (collectively, the "Escrow Shares")
equal to the product, rounded to the nearest whole share, of (X)
the number of Buyer Shares such holder would have otherwise
received pursuant to Section 2.4(e) multiplied by (Y) the Escrow
Ratio. The "Escrow Ratio" shall be the quotient obtained by
dividing (X) One Hundred Twenty-Seven Thousand (127,000) by (Y)
the arithmetic difference between Seven Million (7,000,000) and
the aggregate number of the Preferred Exchange Shares. At the
Closing, Buyer shall deposit with the Escrow Agent one or more
stock certificates representing the Escrow Shares.
4. By deleting Section 2.5(a) of the Merger Agreement in its
entirety and substituting in the place thereof the following:
(a) Warrant Shares. As used in this Agreement, the term
"Warrant Shares" means that number, rounded up to the nearest
whole integer, which is equal to the product of (X) the Seller
Common Ratio applicable to the CMP Warrant, treating
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CMP as a holder of Seller Common Shares, multiplied by (Y) Seven
Million (7,000,000) minus the aggregate number of the Preferred
Exchange Shares.
5. By deleting Section 7.2(g) of the Merger Agreement in its
entirety and substituting in the place thereof the following:
(g) The total number of Buyer Shares that potentially may not
be issued in the Merger as a consequence of one or more Seller
Stockholders having the right, as of the Closing, to exercise
dissenter's rights under the DGCL shall not exceed Three Hundred
Eighty-Five Thousand (350,000).
6. By deleting all references to the date "October 29, 1999" from
Section 9 of the Merger Agreement and substituting in the place thereof the date
"December 15, 1999."
B. Buyer and Seller shall use all commercially reasonable efforts to
(a) prepare a revised Joint Proxy Statement-Prospectus or a supplement to the
Joint Proxy Statement-Prospectus dated August 30, 1999, as Buyer with the advice
of counsel shall determine (which documents are collectively referred to as the
"Revised Proxy Statement") and (b) file the Revised Proxy Statement in one or
more post-effective amendments (collectively, the "Post-Effective Amendment") to
the S-4 Registration Statement (No. 333-86129) and have the Post-Effective
Amendment declared effective under the Securities Act as promptly as practicable
after the date of this Amendment. All references in the Merger Agreement to the
"Joint Proxy Statement-Prospectus" and the "S-4 Registration Statement" shall
include the "Revised Proxy Statement" and "Post-Effective Amendment,"
respectively, unless the context otherwise requires. Seller and, if required
pursuant to the NYSE Rule, Buyer shall cause the Revised Proxy Statement to be
mailed to their respective stockholders as promptly as practicable after the
Post-Effective Amendment is declared effective under the Securities Act. All
references in the Merger Agreement to "Seller Stockholder Approval" shall mean
the affirmative vote, in favor of a proposal to approve the Merger Agreement as
amended by this Amendment, at a meeting or by written consent after the
effective date of the Post-Effective Amendment, of the holders of a majority of
each class of Seller Voting Shares entitled to vote thereon in accordance with
the certificate of incorporation and bylaws of Seller and Section 251(c) of the
DGCL. To the extent Buyer is required pursuant to the NYSE Rule to resolicit
Buyer Stockholder Approval, all references in the Merger Agreement to Buyer
Stockholder Approval shall mean the affirmative vote, in favor of a proposal to
approve the Merger Agreement as amended by this Amendment, at a meeting after
the effective date of the Post-Effective Amendment, of the holders of a majority
of the outstanding shares of Buyer Common Stock in accordance with the
certificate of incorporation and bylaws of Buyer and Section 251(c) of the DGCL.
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C. Except as expressly provided by this Amendment, the First Amendment
and the Second Amendment, the Merger Agreement remains in full force and effect,
and except as expressly provided by this Amendment, this Amendment shall not
constitute a modification or waiver of any other provision of the Merger
Agreement, the First Amendment or the Second Amendment.
D. This Amendment may be executed in counterparts, all of which shall be
considered one and the same instrument, each being deemed to constitute an
original, and shall be effective when one or more counterparts have been signed
by each Party and delivered to the other Parties, which delivery may be made by
facsimile transmission.
E. This Agreement shall be governed by, and interpreted in accordance
with the laws of the State of Connecticut, without regard to any applicable
conflicts of law.
F. In the event of any inconsistency between the terms of this Amendment
and the Merger Agreement, the First Amendment or Second Amendment, this
Amendment shall govern.
G. At the request of any Party, the Parties shall amend and restate the
Merger Agreement in its entirety to reflect this Amendment and the First
Amendment and Second Amendment.
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IN WITNESS WHEREOF, the parties hereto have caused this instrument
to be executed, under seal, in counterparts by their duly authorized officers,
as of the date first above written.
MACDERMID, INCORPORATED
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: President
MCD ACQUISITION CORP.
By:/s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Secretary
PTI, INC.
By:/s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President/CEO
CITICORP VENTURE CAPITAL,
LTD.
By:/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: Vice President
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