EXHIBIT 3
---------
Amendment No. 1 to the Agreement and Plan of Merger and Reorganization
AMENDMENT NO. 1 TO THE
AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
DATED MAY 16, 2001
This Amendment No. 1 (the "Amendment") is made as of June 1, 2001 by and
among Credence Systems Corporation, a Delaware Corporation ("Parent"), Iguana
Acquisition Corporation, an Oregon corporation ("Merger Sub") and wholly owned
subsidiary of Parent, and Integrated Measurement Systems, Inc., an Oregon
corporation ("Company"). This Amendment amends the Agreement and Plan of Merger
and Reorganization dated May 16, 2001, among Parent, Merger Sub and the Company
(the "Merger Agreement"). Capitalized terms used but not defined in this
Amendment shall have the meanings given to them in the Merger Agreement.
WHEREAS, Parent, Merger Sub and the Company have entered into the Merger
Agreement and Parent, Merger Sub and the Company mutually desire to amend the
Merger Agreement in accordance with Section 7.4 thereof;
NOW THEREFORE, in consideration of the premises and the covenants and
agreements contained herein, the parties hereto agree as follows:
1. Section 1.6(c) is deleted in its entirety and the following is
substituted in lieu thereof:
"(c) Company Stock Option Plans and Company ESPP. At the Effective
Time, Company's 1995 Stock Incentive Plan, 1995 Stock Option Plan for
Non-Employee Directors and 2000 Nonqualified Stock Option Plan
(collectively the "Company Stock Option Plans"), the Company ESPP (as
defined below) and all options to purchase Company Common Stock then
outstanding under the Company Stock Option Plans and all obligations of
Company under the Company ESPP shall be assumed by Parent in accordance
with Section 5.9."
2. The 11th and 12th sentences of Section 2.2 which state "The current
"Offering Period" (as defined in the Company ESPP) commenced under the
Company ESPP on February 1, 2000 and will end on the date provided for in
Section 5.9(c), and except for the purchase rights granted on such
commencement date to participants in the current Offering Period, there are
no other purchase rights or options outstanding under the Company ESPP. The
terms of the Company ESPP permit the Company to shorten and terminate
Offering Periods without the consent or approval of participants in the
ESPP, shareholders, or otherwise." are deleted in their entirety and the
following is substituted in lieu thereof:
"The current "Offering Period" (as defined in the Company ESPP)
commenced under the Company ESPP on February 1, 2000 and will end on
January 31, 2002, and except for the purchase rights granted on such
commencement date to participants in the current Offering Period, there
are no other purchase rights or options outstanding under the Company
ESPP."
3. Section 2.14(j) is hereby deleted in its entirety.
4. Section 5.9(c) is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"(c) Outstanding options under the Company ESPP shall be assumed by
the Parent and shall be exercised on January 31, 2002, for Parent
Common Stock. For purposes of such exercise, the per share Purchase
Price for a Participant, as such terms are defined in the Company ESPP,
is an amount equal to 85% of (i) the fair market value of a share of
Company Common Stock on the Participant's Enrollment Date, divided by
the Exchange Ratio and rounded up to the nearest whole cent, or (ii)
the fair market value of a share of Parent Common Stock on January 31,
2002, whichever is lower. The number of whole shares purchased by each
Participant will be based on the total amount of payroll deductions
accumulated for each Participant and retained in each Participant's
account divided by the Participant's Purchase Price, as adjusted above.
The Company ESPP shall terminate on January 31, 2002, immediately
following the purchase. Company employees who meet the eligibility
requirements for participation in the Parent Employee Stock Purchase
Plan shall be eligible to begin
A2-1
participation in the Parent Employee Stock Purchase Plan as of the
first Semi-Annual Entry Date, as such term is defined in the Parent
Employee Stock Purchase Plan, after January 31, 2002."
5. Section 5.10 is hereby deleted in its entirety and the following is
substituted in lieu thereof:
"5.10 Form S-8. Parent agrees to file, no later than 30 business
days after the Closing (provided, that, Parent has received within 10
business days after the Closing all option documentation it requires
relating to the outstanding options), a registration statement on Form
S-8 under the Securities Act covering the shares of Parent Common Stock
issuable pursuant to outstanding options and outstanding purchase
rights granted to individuals, for which a Form S-8 registration
statement is available hereto, under the Company Stock Option Plans and
Company ESPP assumed by Parent pursuant to this Agreement. Company
shall cooperate and assist Parent with the preparation of such
registration statement."
6. Each of the parties hereto shall execute such documents and take such
further actions as may be reasonably required or desirable to carry out the
provisions hereof and the transactions contemplated hereby.
7. Except as amended by this Amendment, all of the terms and conditions
of the Merger Agreement remain in full force and effect in all respects
and, except to the extent the context of the Merger Agreement otherwise
requires, each reference in the Merger Agreement to the Agreement shall be
deemed to refer to the Merger Agreement as amended hereby.
8. This Amendment shall be governed by and construed in accordance with
the laws of the State of California, without regard to the laws that might
otherwise govern under applicable principles of conflicts of laws (except
for matters required to be governed by, and construed in accordance with,
the corporate law of Delaware or Oregon (as applicable)).
9. This Amendment may be signed in original or by fax in counterparts,
each of which will be deemed to be an original, and the counterparts
together will constitute one complete document.
[signature page follows.]
A2-2
IN WITNESS WHEREOF, Company, Parent and Merger Sub have caused this
Amendment to be executed and delivered by their respective officers thereunto
duly authorized, all as of the date first written above.
Credence Systems Corporation
/s/ Xxxx X. Xxxxxxxx
By: _________________________________
Name: Xxxx X. Xxxxxxxx
Title: Senior V.P. & CFO
Integrated Measurement Systems, Inc.
/s/ Xxxxx X. Xxxxxx
By: _________________________________
Name: Xxxxx X. Xxxxxx
Title: Chairman & CEO
Iguana Acquisition Corporation
/s/ Xxxx X. Xxxxxxxx
By: _________________________________
Name: Xxxx X. Xxxxxxxx
Title: CFO
SIGNATURE PAGE TO AMENDMENT
TO AGREEMENT AND PLAN OF MERGER AND REORGANIZATION
A2-3
