1
EXHIBIT 2.1
AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 (the "Amendment"), dated as of January 10, 2000, is
entered into by and among Photronics, Inc., a Connecticut corporation
("Parent"), AL Acquisition Corp., a California corporation and a wholly owned
subsidiary of Parent ("Merger Sub"), and Align-Rite International, Inc., a
California corporation (the "Company").
WHEREAS, Parent, Merger Sub and the Company have previously executed and
delivered that certain Agreement and Plan of Merger, dated as of September 15,
1999, by and among Parent, Merger Sub and the Company (the "Merger Agreement");
WHEREAS, Parent, Merger Sub and the Company desire to amend the Merger
Agreement as set forth herein and pursuant to Section 7.3 of the Merger
Agreement; and
WHEREAS, the shareholders of Company who are party to the Voting
Agreement have reaffirmed the Voting Agreement in light of this Amendment.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and agreements herein contained, and intending to be legally bound
hereby, Parent, Merger Sub and Company hereby agree as follows:
1. Definitions. Capitalized terms used herein but not expressly defined
shall have the meanings accorded such terms in the Merger Agreement.
2. Amendment of Section 2.3 of the Merger Agreement. The first sentence
of Section 2.3 of the Merger Agreement is hereby amended and restated to read,
in its entirety, as follows:
"At the Effective Time, by virtue of the Merger and without any
action on the part of the holder of any shares of Company Common Stock
or any shares of capital stock of Merger Sub, subject to this Section
2.3 and Section 2.4(f), each share of Company Common Stock issued and
outstanding immediately prior to the Effective Time (other than shares
to be canceled in accordance with Section 2.2 (the "Canceled Shares")
and Dissenting Shares) shall be converted into 0.85 (the "Conversion
Number") of duly authorized, validly issued and nonassessable shares of
Parent Common Stock (the "Merger Consideration"), provided that, if
between the date of this Agreement and the Effective Time, the
outstanding shares of Parent Common Stock shall have been changed into a
different number of shares or a different class, by reason of any
declared or completed stock dividend, subdivision, reclassification,
recapitalization, split, combination or exchange of shares, the
Conversion Number shall be adjusted correspondingly to the extent
appropriate to reflect such stock dividend, subdivision,
reclassification, recapitalization, split, combination or exchange of
shares."
2
All references in the Merger Agreement to the Conversion Number or
the Merger Consideration shall be deemed to refer to the Conversion
Number or the Merger Consideration, as the case may be, as such terms
are defined in this Amendment.
3. Amendment of Section 3.11 of the Merger Agreement. Section 3.11 of
the Merger Agreement is hereby amended and restated to read, in its entirety, as
follows:
"SECTION 3.11 Proxy Statement; Registration Statement; Other
Information. None of the information with respect to the Company or its
Subsidiaries to be included in the Proxy Statement (as defined in
Section 5.2) or the Registration Statement (as defined in Section 5.2)
will, in the case of the Proxy Statement or any amendments thereof or
supplements thereto, at the time of the mailing of the Proxy Statement
or any amendments or supplements thereto, and at the time of the Company
Meeting (as defined in Section 5.3) or, in the case of the Registration
Statement, at the time it becomes effective or at the time of any
post-effective amendment, contain any untrue statement of a material
fact or omit to state any material fact required to be stated therein or
necessary in order to make the statements therein, in light of the
circumstances under which they were made, not misleading, except that no
representation is made by the Company with respect to information
supplied in writing by Parent or any affiliate of Parent specifically
for inclusion in the Proxy Statement. The Proxy Statement will comply as
to form in all material respects with the provisions of the Exchange Act
and the rules and regulations promulgated thereunder."
4. Amendment of Section 3.14 of the Merger Agreement. Section 3.14 of
the Merger Agreement is hereby amended and restated to read, in its entirety, as
follows:
"SECTION 3.14 Opinion of Financial Advisor. The Board of
Directors of the Company has received an opinion of CIBC World
Markets Corp., dated January 10, 2000, to the effect that, as of
such date, the Exchange Ratio (as defined therein) is fair to the
Company's shareholders from a financial point of view. A copy of
the written opinion of CIBC World Markets Corp. will be delivered
to Parent as soon as practicable after the date of this
Agreement."
5. Amendment of Section 4.3 of the Merger Agreement. Section 4.3(a) of
the Merger Agreement is hereby amended and restated to read, in its entirety, as
follows:
"(a) Each of Parent and Merger Sub has full corporate power and
authority to enter into this Agreement and to carry out its obligations
hereunder. The execution and delivery of this Agreement and the
consummation of the transactions contemplated hereby have been duly and
validly authorized by the Boards of Directors of Parent and Merger Sub
and by Parent as sole stockholder of Merger Sub, and no other corporate
or stockholder proceedings on the part of Parent or Merger Sub are
necessary to authorize this Agreement, the issuance of the Parent Common
Stock and the other transactions contemplated hereby. This Agreement has
been duly and validly executed and delivered by Parent and Merger Sub
and, assuming this Agreement has been duly and validly executed and
delivered by the other parties hereto, this Agreement constitutes the
valid and binding agreements of Parent and Merger Sub, enforceable
against each of them in
2
3
accordance with its terms (except insofar as enforceability may be
limited by applicable bankruptcy, insolvency, reorganization, moratorium
or similar laws affecting creditors' rights generally, or by principles
governing the availability of equitable remedies). Other than in
connection with or in compliance with the provisions of the CGCL, the
Securities Act, the Exchange Act, the HSR Act, any non-United States
competition, antitrust and investments laws and the securities or blue
sky laws of the various states and other jurisdictions, and, other than
the filing of this Agreement and a duly executed officers' certificate
by each of the Company and the Merger Sub with the California Secretary
of State and any necessary state filings to maintain the good standing
or qualification of the Surviving Corporation (collectively, the "Parent
Required Approvals"), no authorization, consent or approval of, or
filing with, any governmental body or authority is necessary on the part
of Parent or Merger Sub for the consummation by Parent or Merger Sub of
the transactions contemplated by this Agreement, except for such
authorizations, consents, approvals or filings, the failure to obtain or
make which would not in the aggregate have a Material Adverse Effect on
Parent or Merger Sub; provided that Parent makes no representation with
respect to such of the foregoing as are required by reason or facts
specifically pertaining to Company or any of its Subsidiaries."
6. Amendment of Section 4.14 of the Merger Agreement. Section 4.14 of
the Merger Agreement is hereby amended and restated to read, in its entirety, as
follows:
"SECTION 4.14 Vote of Parent Shareholders. Neither the
vote of the holders of the outstanding shares of Parent Common
Stock nor of any other class of the capital stock of Parent is
required to approve the issuance of Parent Common Stock in the
Merger."
7. Amendment of Section 4.15 of the Merger Agreement. Section 4.15 of
the Merger Agreement is hereby amended to read, in its entirety, as follows:
"SECTION 4.15 Opinion of Financial Advisor. The Board of
Directors of Parent has received the opinion of Banc of America
Securities LLC, dated January 10, 2000, to the effect that, as of
such date, the Exchange Ratio (as defined therein) is fair from a
financial point of view to Parent. A copy of the written opinion
of Banc of America Securities LLC will be delivered to the
Company as soon as practicable after the date of this Agreement."
8. Amendment of Section 5.2 of the Merger Agreement. Subsections (a) and
(b) of Section 5.2 of the Merger Agreement are hereby amended and restated to
read, in their entirety, as follows:
"(a) The Company will, as promptly as practicable following the
date of this Agreement, prepare and file with the SEC, will use
reasonable efforts to have cleared by the SEC and thereafter mail to its
shareholders as promptly as practicable, a proxy statement that will be
the same proxy statement/prospectus contained in the Registration
Statement (as hereinafter defined) and a form of proxy, in connection
with the vote of the Company's shareholders with respect to the matters
contemplated hereby (such proxy statement/prospectus, together with any
amendments thereof or supplements thereto, in
3
4
each case in the form or forms mailed to the Company's shareholders, is
herein called the "Proxy Statement").
(b) Parent will, as promptly as practicable following the date of
this Agreement, prepare and file with the SEC a registration statement
of the Parent on Form S-4 (such registration statement, together with
all and any amendments and supplements thereto, being herein referred to
as the "Registration Statement"). Such Registration Statement shall be
used for the purposes of registering with the SEC the issuance of Parent
Common Stock to holders of Company Common Stock in connection with the
Merger. In addition, each of Parent and the Company will upon reasonable
advance notice provide the other with all information and other data as
may be reasonably requested by Parent or the Company, as the case may
be, in connection with the preparation and filing of the Registration
Statement and the Proxy Statement."
9. Amendment of Section 5.3 of the Merger Agreement. Section 5.3 of the
Merger Agreement is hereby amended and restated to read, in its entirety, as
follows:
"SECTION 5.3 Shareholders' Meeting. The Company shall, in
accordance with applicable law and its articles of incorporation and by
laws, duly call, give notice of, convene and hold a meeting (which, as
may be duly adjourned, shall be referred to as the "Company Meeting") of
its shareholders as soon as practicable for the purpose of approving by
the holders of a majority of the outstanding shares of Company Common
Stock this Agreement and the Merger (the "Company Shareholder
Approval"). The Company agrees to use its reasonable best efforts to
cause the Company Meeting to occur within forty-five (45) days after the
date on which the Registration Statement becomes effective. The Company
shall include in the Proxy Statement the recommendation of its Board of
Directors that shareholders vote in favor of the Company Shareholder
Approval, subject to the duties of the Board of Directors of the Company
to make any further disclosure to the shareholders (which shall not,
unless expressly stated, constitute a withdrawal or adverse modification
of such recommendation) and to the right to change such recommendation
or terminate this Agreement following receipt of a Superior Proposal (as
defined in Section 5.10)."
10. Amendment of Section 6.1 of the Merger Agreement. Section 6.1(b) of
the Merger Agreement is hereby amended and restated to read, in its entirety, as
follows:
"(b) The Company Shareholder Approval shall have been obtained;"
11. Amendments of Section 7.1 of the Merger Agreement. All references in
subsections (c) and (e) of Section 7.1 of the Merger Agreement to "February 25,
2000" are hereby amended to read "March 31, 2000." Subsection (b) of Section 7.1
of the Merger Agreement is hereby amended and restated to read, in its entirety,
as follows:
"(b) by Parent (provided that Parent is not then in material
breach of any representation, warranty, covenant or other agreement
contained herein), (i) upon a breach of any representation, warranty,
covenant or agreement on the part of the Company set forth in this
Agreement, or (ii) if any representation or
4
5
warranty of the Company shall have become untrue, in either case
continuing ten (10) days following notice to the Company of such breach
or untruth and of a nature such that the conditions set forth in Section
6.2(a) or Section 6.2(b), as the case may be, would be incapable of
being satisfied by March 31, 2000;"
Subsection (g) of Section 7.1 of the Merger Agreement is hereby amended
and restated, in its entirety, to read: "[Intentionally Omitted]", and
subsection (j) of Section 7.1 of the Merger Agreement is hereby amended and
restated, in its entirety, to read as follows:
"(j) by the Company if the Average Parent Price is less than
$18.82."
12. Amendment of Section 7.5(a) of the Merger Agreement. Section 7.5(a)
of the Merger Agreement is hereby amended and restated to read, in its entirety,
as follows:
"(a) In the event (i) the Company terminates this Agreement
pursuant to Section 7.1(h) or (ii) Parent terminates this Agreement
pursuant to Section 7.1(b)(i) or 7.1(i), then the Company shall pay
Parent an amount equal to $3,640,000 (the "Termination Fee") by wire
transfer of immediately available funds upon the occurrence of such
event, and as a condition to termination in the case of termination
pursuant to Section 7.1(h). The Termination Fee shall be the sole remedy
of Parent for any breach of any representation, warranty, covenant or
agreement on the part of the Company set forth in this Agreement."
13. Amendment of Section 8.3 of the Merger Agreement. Section 8.3 of the
Merger Agreement is hereby amended by adding the following as a new subsection
(d), renumbering the current subsections (d) through (l) as subsections (e)
through (m) and deleting the reference to "Average Parent Price" in renumbered
subsection (m):
"(d) Average Parent Price" means the average of the daily average
per share high and low sales prices of one share of Parent Common Stock
as reported on the Nasdaq National Market (as reported in the New York
City edition of The Wall Street Journal or, if not reported thereby,
another authoritative source) for each of the 20 trading days ending on
the third trading day prior to the Company Meeting (as defined in
Section 5.3, so long as the Closing Date occurs within five business
days of the Company Meeting or, if the Closing Date is more than five
business days after the Company Meeting, the Closing Date) rounded to
the nearest cent."
Renumbered subsection (i) of Section 8.3 of the Merger Agreement is
hereby amended by adding the following at the end of that subsection:
; provided, however, that events, circumstances and prospects disclosed
by the Company to Parent in the Company Disclosure Letter, as amended as
of January 7, 2000, and any consequences thereof, shall not constitute
or form the basis of a Material Adverse Change or Material Adverse
Effect."
5
6
In addition, renumbered subsection (m) of Section 8.3 of the Merger
Agreement is hereby amended to delete the following defined terms: "Parent
Meeting," "Parent Shareholder Approval" and "Meetings" and to add the defined
term "Proxy Statement" and the accompanying section reference "5.2(a)". All
references to "Joint Proxy Statement" in the Table of Contents of the Merger
Agreement and in Section 4.11 of the Merger Agreement shall be to "Proxy
Statement."
14. Authority.
(a) Each of Parent and Merger Sub has full corporate power and
authority to enter into this Amendment. The execution and delivery of
this Amendment and the consummation by each of Parent and Merger Sub of
the transactions contemplated by the Merger Agreement, as amended
hereby, have been duly and validly authorized by the Boards of Directors
of Parent and Merger Sub. This Amendment has been duly and validly
executed and delivered by each of Parent and Merger Sub and constitutes
the valid and binding obligation of each of Parent and Merger Sub,
enforceable against each of Parent and Merger Sub in accordance with its
terms (except insofar as enforceability may be limited by bankruptcy,
insolvency, reorganization, moratorium or similar laws affecting
creditors' rights generally, or by principles governing the availability
of equitable remedies).
(b) The Company has full corporate power and authority to enter into
this Amendment. The execution and delivery of this Amendment and the
consummation by the Company of the transactions contemplated by the
Merger Agreement, as amended hereby, have been duly and validly
authorized by the Board of Directors of the Company. This Amendment has
been duly and validly executed and delivered by the Company and
constitutes the valid and binding obligation of the Company, enforceable
against the Company in accordance with its terms (except insofar as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally, or by
principles governing the availability of equitable remedies).
15. Governing Law. This Amendment shall be governed by and construed in
accordance with the laws of the State of California, without regard to any
applicable conflicts of law.
16. Counterparts; Effect. This Amendment may be executed in one or more
counterparts, each of which shall be deemed to be an original, but all of which
shall constitute one and the same agreement.
17. Merger Agreement Confirmed. Except as amended hereby, the Merger
Agreement is ratified and confirmed in all respects. Each reference in the
Merger Agreement or any other related document to the Merger Agreement, the
Agreement or this Amendment shall be deemed to a reference to the Merger
Agreement as amended hereby.
6
7
IN WITNESS WHEREOF, Parent, Merger Sub and the Company have caused this
Amendment to be signed by their respective officers thereunto duly authorized,
all as of the date first written above.
PHOTRONICS, INC.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice Chairman
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice President
Finance and Administration
AL ACQUISITION CORP.
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
By:
-----------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALIGN-RITE INTERNATIONAL, INC.
By:
-----------------------------------------
Name: Xxxxx X. Xxx Xxxxxx
Title: Chairman of the Board,
Chief Executive Officer
and President
By:
-----------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President of Finance,
Chief Financial Officer
7
