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EXHIBIT 99.(d)(2)
AMENDMENT NO. 1
TO
AGREEMENT AND PLAN OF MERGER
This Amendment No. 1 to that certain Agreement and Plan of Merger (the
"Amendment") is entered into effective as of May 15, 2001, by and among 3D
Systems Corporation, a Delaware corporation ("Parent"), Tiger Deals, Inc., a
Delaware corporation ("Buyer"), and DTM Corporation, a Texas corporation (the
"Company"). Capitalized terms used herein without definition will have the same
meanings given to those terms in that certain Agreement and Plan of Merger dated
as of April 2, 2001 (the "Merger Agreement") among Parent, Buyer and the
Company.
RECITALS
A. Parent, Buyer and the Company entered into the Merger Agreement,
pursuant to which: (i) Buyer commenced a tender offer to acquire any and all of
the outstanding shares of the Company's common stock at $5.80 per share, net to
seller in cash, without interest, less any withholding taxes; and (ii) as soon
as practicable after the purchase of the shares pursuant to the tender offer and
after the satisfaction or waiver of certain conditions set forth in the Merger
Agreement, Buyer will be merged with and into the Company, with the Company as
the surviving corporation.
B. Section 9.3(a) of the Merger Agreement currently provides for, among
other matters, the payment by the Company to Parent, under certain conditions,
of a Termination Fee equal to $1,025,000, plus all actual out of pocket expenses
not to exceed $2,000,000.
C. A class action lawsuit (the "Lawsuit") was filed against the Company and
certain of its directors on August 31, 2000.
D. In connection with settling the Lawsuit, the respective board of
directors of Parent, Buyer and the Company have agreed, on behalf of their
respective corporations, to reduce the Termination Fee by amending, as set forth
below, Section 9.3(a) of the Merger Agreement.
E. The Boards of Directors of Parent, Buyer and the Company each has
determined that the business combination among Parent, the Company and Buyer is
in the best interests of their respective companies and stockholders, and
accordingly each has approved and adopted this Amendment, and the Company agrees
to recommend to its shareholders the adoption of the Merger Agreement as amended
hereby and the Offer and the Merger.
AGREEMENT
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
herein provided, the parties agree as follows:
1. Section 9.3 of the Merger Agreement is hereby amended by amending and
restating Section 9.3(a) thereof to read in its entirety as follows:
"(a) In the event that: (A) the Company terminates this Agreement
under Section 9.1(d) or (B) Parent terminates this Agreement under Section
9.1(c)(i), the Company shall pay to Parent a termination fee equal to
$750,000 plus all actual out of pocket expenses (including, but not limited
to, fees of legal counsel, accountants and financial and other advisors)
incurred by Parent and any of its Affiliates in connection with the
negotiation and execution of this Agreement and the exhibits hereto and the
planned consummation of the necessary financing therefor and the
Transactions ("Parent Expenses"), provided that such fee shall not exceed
One Million Five Hundred Thousand Dollars and No/100 ($1,500,000) in the
aggregate (the "Termination Fee")."
2. The Company hereby represents and warrants to Parent that the Board of
Directors of the Company has approved this Amendment, has determined that the
Merger Agreement, as amended, is in
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the best interests of the Company and its shareholders and has resolved to
recommend the acceptance of the Offer and adoption of the Merger Agreement, as
amended, by its shareholders.
3. Parent hereby represents and warrants to the Company that the Board of
Directors of Parent has approved this Amendment and has determined that the
Merger Agreement, as amended, is in the best interests of Parent and its
stockholders.
4. This Amendment may be executed in any number of counterparts, each of
which so executed shall be deemed to be an original, but all such counterparts
shall together constitute but one and the same instrument.
5. Except as expressly modified or amended by the terms hereof, each and
every one of the other provisions of the Merger Agreement shall remain in full
force and effect.
6. This Amendment and the Merger Agreement, together with the Exhibits,
Annexes and Disclosure Letters referred to in the Merger Agreement and the
certificates, documents, instruments and writings that are delivered pursuant to
the Merger Agreement, and the Confidentiality Agreement, constitutes the entire
agreement and understanding of the parties in respect of its subject matters and
supersedes all prior understandings, agreements, or representations by or among
the parties, written or oral, to the extent they relate in any way to the
subject matter of the Merger Agreement or the Transactions contemplated by the
Merger Agreement.
[Signature Page Immediately Follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 1 to
Agreement and Plan of Merger to be duly executed as of the date and year first
above written.
3D SYSTEMS CORPORATION,
a Delaware corporation
By: /s/ XXXXX X. SERVICE
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Xxxxx X. Service
Chief Executive Officer and
President
TIGER DEALS, INC.,
a Delaware corporation
By: /s/ XXXXX X. SERVICE
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Xxxxx X. Service
Chief Executive Officer and
President
DTM CORPORATION,
a Texas corporation
By: /s/ XXXX X. XXXXXXXXX, III
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Xxxx X. Xxxxxxxxx, III
Chief Executive Officer and
President
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