THIS THIRD AMENDMENT (the "Amendment") is entered into as of October 29,
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 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 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.
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.
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: Secretary
MCD ACQUISITION CORP.
By /S/
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Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice-President/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
