AMENDMENT NO. 1 TO AGREEMENT AND PLAN OF MERGER
Exhibit
2.1
AMENDMENT
NO. 1
TO
THIS
AMENDMENT NO. 1, dated as of August 14, 2008 (this “Amendment”),
to
the AGREEMENT AND PLAN OF MERGER (the “Agreement”)
dated
as of June 24, 2008, by and among (i) SAES GETTERS S.P.A., an Italian
corporation (“Parent”),
(ii)
SAES DEVICES CORP., a Delaware corporation and an indirect wholly-owned
subsidiary of Parent (“Merger
Sub”),
and
(iii) MEMRY CORPORATION, a Delaware corporation (the “Company”).
Capitalized terms not otherwise defined shall have the meanings set forth in
the
Agreement.
R
E C I T A L S
WHEREAS,
the Parties have agreed to amend the Agreement to provide for various matters
set forth herein.
WHEREAS,
the Board of Directors of the Company has approved this Amendment pursuant
to
Section 7.4 of the Agreement.
WHEREAS,
the Boards of Directors of Parent and Merger Sub have approved this Amendment
pursuant to Section 7.4 of the Agreement.
WHEREAS,
simultaneously herewith, Parent and Merger Sub shall execute and deliver to
the
Company the consent set forth in Exhibit
A
hereto.
NOW,
THEREFORE, in consideration of these premises, the mutual promises herein made,
and in consideration of the representations, warranties, and covenants herein
contained, the Parties hereto agree to amend the Agreement as
follows:
1. Section
1.7(a) of the Agreement is hereby amended and restated in its entirety as
follows:
(a) Conversion
of Company Common Stock.
Subject
to Sections
1.7(b),
1.7(d)
and
1.7(e),
each
issued and outstanding share of common stock, par value $0.01 per share, of
the
Company (“Company
Common Stock”)
outstanding immediately prior to the Effective Time, other than any Cancelled
Shares (to the extent provided in Section
1.7(b))
and any
Dissenting Shares (to the extent provided for in Section
1.7(e))
shall
thereupon be converted automatically into and shall thereafter represent the
right to receive an amount equal to $2.53 per share (the “Merger
Consideration”).
All
shares of Company Common Stock that have been converted into the right to
receive the Merger Consideration as provided in this Section
1.7(a)
shall be
automatically cancelled and shall cease to exist, and the holders of
certificates which immediately prior to the Effective Time represented such
shares of Company Common Stock shall cease to have any rights with respect
to
such shares of Company Common Stock other than the right to receive the Merger
Consideration.
2. Section
4.1(b)(vii) of the Agreement is hereby amended and restated to read in its
entirety as follows:
(vii) except
for transactions among the Company and its wholly owned Subsidiaries or among
the Company’s wholly owned Subsidiaries and except for purchases of shares of
Company Stock at a price per share less than $2.53 per share, shall not, and
shall not permit any of its Subsidiaries to, directly or indirectly, purchase,
redeem or otherwise acquire any shares of its capital stock or any rights,
warrants or options to acquire any such shares;
3. Section
4.1(b)(viii) of the Agreement is hereby amended and restated to read in its
entirety as follows:
(viii) shall
not, and shall not permit any of its Subsidiaries to, incur, assume, guarantee,
prepay or otherwise become liable for any indebtedness for borrowed money
(directly, contingently or otherwise), other than in the ordinary course of
business consistent with past practice and except for (A) any indebtedness
for
borrowed money among the Company and its wholly owned Subsidiaries or among
the
Company’s wholly owned Subsidiaries, (B) indebtedness for borrowed money
incurred to replace, renew, extend, refinance or refund any existing
indebtedness for borrowed money, so long as the principal amount thereof is
not
increased and the other terms and conditions thereof are not materially less
favorable than the existing terms of such indebtedness (C) guarantees by the
Company of indebtedness for borrowed money of Subsidiaries of the Company,
which
indebtedness is incurred in compliance with this Section 4.1(b), (D)
indebtedness for borrowed money incurred pursuant to agreements in effect prior
to the execution of this Agreement and (E) indebtedness for borrowed money
not
to exceed $4,000,000 in aggregate principal amount outstanding at any time
incurred by the Company or any of its Subsidiaries other than in accordance
with
clauses (A)-(D), inclusive; provided, however, that in the case of this clause
(E), $3,500,000 of such principal amount shall be used solely with respect
payments under the settlement agreements referred to on Exhibit
A
to the
Amendment No. 1 to this Agreement;
4. Section
4.1(b)(xi) of the Agreement is hereby amended and restated to read in its
entirety as follows:
(xi) except
as
set forth on Exhibit A to the Amendment No. 1 to the Agreement or as set forth
on Section 4.1(b)(xi) of the Company Disclosure Schedule, shall not, and shall
not permit any of its Subsidiaries to, enter into any Company Material Contracts
other than in the ordinary course of business;
5. Section
4.1(b)(xviii) of the Agreement is hereby amended and restated to read in its
entirety as follows:
(xviii) except
as
set forth on Exhibit A to the Amendment No. 1 to the Agreement, shall not settle
any material pending claim or other material disagreement resulting in any
payment of an amount in excess of $50,000 in the aggregate as to all such claims
or disagreements;
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6. Section
4.8(b)(i) of the Agreement is hereby amended and restated to read in its
entirety as follows:
(i)
promptly, but in no event later than August 1, 2008, make their respective
filings and thereafter make any other required submissions under the HSR
Act;
7. MISCELLANEOUS
(a) References
to the Agreement.
After
giving effect to this Amendment, each reference in the Agreement to "this
Agreement," "hereof," "hereunder," "herein," "hereby" or words of like import
referring to the Agreement shall refer to the Agreement, as amended by this
Amendment, and each reference in the Company Disclosure Schedules to "the
Agreement" shall refer to the Agreement as amended by this
Amendment.
(b) No
Further Amendment.
Except
as amended hereby, the Agreement shall remain in full force and
effect.
(c) Entire
Agreement.
The
Agreement and this Amendment and the other writings referred to herein or
delivered pursuant hereto contain the entire agreement among the parties with
respect to the subject matter hereof and thereof and supersede all prior and
contemporaneous arrangements or understandings with respect hereto and thereto.
(d) Governing
Law.
This
Amendment shall be governed and construed in accordance with the laws of the
State of Delaware.
(e) Counterparts;
Facsimile.
This
Amendment may be executed in any number of counterparts (each of which may
be
transmitted via facsimile or by pdf), and each such counterpart hereof shall
be
deemed to be an original instrument, but all such counterparts together shall
constitute but one agreement.
(f) Headings.
The
headings of the various sections of this Amendment have been inserted for
convenience of reference only and shall not be deemed to be a part of this
Amendment.
[Signature
Pages Follow]
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IN
WITNESS WHEREOF, the Parties have executed this Amendment No. 1 as of the date
first above written.
PARENT:
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SAES
GETTERS S.P.A
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By:
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/s/
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Managing
Director
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MERGER
SUB:
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SAES
DEVICES CORP.
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By:
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/s/
Massimo Xxxxx Xxxxx
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Name:
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Massimo
Xxxxx Xxxxx
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Title:
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President
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COMPANY:
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MEMRY
CORPORATION
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By:
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/s/
Xxxxxx Xxxxxxx
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Name:
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Xxxxxx
Xxxxxxx
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Title:
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Chief
Executive Officer
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B-1
EXHIBIT
A
CONSENT
THIS
CONSENT, dated as of August 14, 2008, (this “Consent”)
is
entered into in connection with that AGREEMENT AND PLAN OF MERGER dated as
of
June 24, 2008, by and among (i) SAES GETTERS S.P.A., an Italian group
(“Parent”),
(ii)
SAES DEVICES CORP., a Delaware corporation and an indirect wholly-owned
subsidiary of Parent (“Merger
Sub”)
and
(iii) Memry Corporation, a Delaware corporation (the “Company”),
as
amended by that certain Amendment No.1 dated on or about the date hereof (the
“Agreement”).
Capitalized terms not otherwise defined shall have the meanings set forth in
the
Agreement.
WHEREAS,
pursuant to the terms of the Agreement, the Company has covenanted that between
the date of the Agreement and the earlier of the Effective Time and the
Termination Date, the Company shall not take certain actions and not enter
into
certain agreements without the consent of Parent and Merger Sub.
WHEREAS,
the Parties desire to permit the Company to take certain actions otherwise
prohibited under the Agreement.
NOW,
THEREFORE, in consideration of these premises and the mutual promises herein
made, the Parent and Merger Sub hereby consent to the following:
(a)
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The
Company entering into the Settlement Agreement and Mutual Release
by and
among Memry Corporation, Kentucky Oil Technology, N.V., Memory Metal
Holland B.V., Xxxxx Besselink, Xx. Xxxxxxxx xxx Xxxxxxxxxx, and United
Stenting, Inc. substantially in the form provided to Parent (the
“Settlement
Agreement”);
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(b)
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The
Company carrying out the terms of the Settlement
Agreement;
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(c)
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The
Company entering into a Settlement Agreement and Mutual Release between
Memry Corporation and Schlumberger Technology Corporation substantially
in
the form provided to Parent (the “Schlumberger
Settlement Agreement”);
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(d)
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The
Company carrying out the terms of the Schlumberger Settlement Agreement;
and
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(e)
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The
Company entering into the Mutual Release and Agreement Xx. Xxxxxxxx
xxx
Xxxxxxxxxx and AMT, N.V. substantially in the form provided to Parent
(the
“WVM
Settlement Agreement”).
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(f)
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The
Company carrying out the terms of the WVM Settlement
Agreement.
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[Signature
Page Follows]
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IN
WITNESS WHEREOF, the Parent and Merger Sub have executed this consent as of
the
date first above written.
SAES
GETTERS S.P.A.
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By:
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/s
Xxxxxx Xxxxxx
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Name:
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Xxxxxx
Xxxxxx
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Title:
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Managing
Director
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MERGER
SUB:
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SAES
DEVICES CORP.
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By:
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/s/
Massimo Xxxxx Xxxxx
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Name:
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Massimo
Xxxxx Xxxxx
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Title:
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President
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