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."
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 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 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 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."
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 be a reference to the Merger Agreement as amended
hereby.
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: /s/ Xxxxxxx X. Xxxxxxx
-------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Vice Chairman
By: /s/ Xxxxxxx X. Xxxxxx
------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Executive Vice
President, Finance and
Administration
AL ACQUISITION CORP.
By: /s/ Xxxxxxx X. Xxxxxxx
----------------------
Name: Xxxxxxx X. Xxxxxxx
Title: President
By: /s/ Xxxxxxx X. Xxxxxx
---------------------
Name: Xxxxxxx X. Xxxxxx
Title: Vice President
ALIGN-RITE INTERNATIONAL, INC.
By: /s/ Xxxxx X. XxxXxxxxx
----------------------
Name: Xxxxx X. XxxXxxxxx
Title: Chairman of the Board,
Chief Executive Officer and
President
By: /s/ Xxxxx X. Xxxxxxxx
---------------------
Name: Xxxxx X. Xxxxxxxx
Title: Vice President of
Finance, Chief Financial Officer
