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EXHIBIT 2.3
IRREVOCABLE ACKNOWLEDGMENT AND WAIVER
THIS IRREVOCABLE ACKNOWLEDGMENT AND WAIVER (this "Waiver"), dated as of
December 15, 2000, is entered into by and among Mattson Technology, Inc., a
Delaware corporation ("Mattson") and CFM Technologies, Inc., a Pennsylvania
corporation ("CFM").
RECITALS
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A. Mattson, CFM and M2C Acquisition Corporation, a Delaware corporation
and a wholly owned subsidiary of Mattson, entered into an Agreement and Plan of
Merger dated as of June 27, 2000 (the "Merger Agreement").
B. Pursuant to Section 1.10(b) of the Merger Agreement, if certain
enumerated conditions are satisfied prior to the Closing, then Mattson and CFM
shall each execute and deliver to the other an irrevocable acknowledgment and
waiver, in form and substance reasonably satisfactory to the parties,
acknowledging or waiving satisfaction of certain conditions to such party's
obligations to consummate the Merger, and waiving certain termination rights of
such party otherwise provided in Section 8.1 of the Merger Agreement. This
Waiver is delivered in satisfaction of Section 1.10(b) of the Merger Agreement.
C. Concurrently with delivery of this Waiver, the parties are delivering
or causing delivery of various closing certificates, legal opinions and other
documents intended to satisfy the conditions set forth in Sections 7.2 and 7.3
of the Merger Agreement.
D. The STEAG Early Condition Satisfaction Date Actions are being taken
simultaneously with delivery of this Waiver and the taking of the other actions
contemplated by Section 1.10 of the Merger Agreement.
NOW, THEREFORE, in consideration of the foregoing, the undersigned agree as
follows:
1. Mattson and CFM hereby jointly and irrevocably acknowledge the
satisfaction of, and waive any further need to satisfy, the closing conditions
set forth in Sections 7.1(a), (c), and (d) of the Merger Agreement.
2. Mattson hereby irrevocably (i) acknowledges the satisfaction of, and
waives any further need to satisfy, the closing conditions set forth in Section
7.1(e) and Section 7.2 of the Merger Agreement, except to the extent of the
remaining conditions to the obligations of Mattson set forth in paragraph 4 of
this Waiver, and (ii) waives all of Mattson's termination rights set forth in
Section 8.1 of the Merger Agreement, with the exception of subsections (a), (b)
and (c) of Section 8.1.
3. CFM hereby irrevocably (i) acknowledges the satisfaction of, and waives
any further need to satisfy, the closing conditions set forth in Section 7.3 of
the Merger Agreement, except to the extent of the remaining conditions to the
obligations of CFM set forth in paragraph 5 of this Waiver, and (ii) waives all
of CFM's termination rights set forth in
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Section 8.1 of the Merger Agreement, with the exception of subsections (a), (b)
and (c) of Section 8.1.
4. The obligation of Mattson to consummate the Merger and the transactions
contemplated under the Merger Agreement shall remain subject to the condition
that Mattson receives the following at the Closing, except as may be waived by
Mattson in writing:
(a) The written resignations of the officers and directors of all
Company Subsidiaries required by Section 7.2(h) of the Merger Agreement.
(b) The executed Articles of Merger and Certificate of Merger required
by Section 7.2(i) of the Merger Agreement and written evidence reasonably
satisfactory to Mattson that (i) the Articles of Merger have been filed with the
Pennsylvania Department of State in accordance with Pennsylvania law, and (ii)
the Certificate of Merger has been filed with the Secretary of State of the
State of Delaware in accordance with Delaware law.
5. The obligation of CFM to consummate the Merger and the transactions
contemplated under the Merger Agreement shall remain subject to the condition
that CFM receives the following at the Closing, except as may be waived by CFM
in writing:
(a) The executed Articles of Merger and Certificate of Merger required
by Section 7.3(h) of the Merger Agreement and written evidence reasonably
satisfactory to CFM that (i) the Articles of Merger have been filed with the
Pennsylvania Department of State in accordance with Pennsylvania law, and (ii)
the Certificate of Merger has been filed with the Secretary of State of the
State of Delaware in accordance with Delaware law.
(b) Written evidence reasonably satisfactory to CFM that Mattson has
taken the actions required under Section 6.21 of the Merger Agreement, and that
Mattson has caused the amendments to its Certificate of Incorporation approved
by its stockholders at the special meeting of stockholders held on November 8,
2000 to become effective under Delaware law.
(c) Written evidence reasonably satisfactory to CFM that Mattson has
taken all action necessary to grant the options contemplated by Section 1.8(e)
of the Merger Agreement other than delivery of the Additional Parent Options and
Second Additional Parent Options (which shall be done as soon as reasonably
practicable following the Closing), and other than the granting of any
Additional Parent options and Second Additional Parent Options to individuals
located in Japan, Korea and the U.K., subject to the last sentence of Section
1.8(e) of the Merger Agreement.
(d) Written evidence reasonably satisfactory to CFM that the Parent
Common Stock issuable pursuant to the Merger and upon exercise of the Company
Stock Options assumed by Mattson pursuant to Section 1.8 of the Merger Agreement
have been approved for listing by NASDAQ upon official notice of issuance.
6. Notwithstanding the other provisions of this Waiver, each party remains
obligated to perform and comply with all of its covenants and obligations in the
Merger Agreement. Other
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than with respect to waivers of conditions to their respective obligations to
consummate the Merger and the waivers of the specified termination rights,
neither party waives any of its rights with respect to any breach by the other
party of any representation, warranty, covenant or obligation under the Merger
Agreement, or any of the remedies it would be entitled to seek for such breach
from and after the Closing.
7. Section 1.8(e) of the Merger Agreement is hereby amended by adding
after the last sentence thereof the following sentence: ''Notwithstanding the
foregoing, the Parent Corporation shall not be required to grant any Additional
Parent Options or Second Additional Parent Options to individuals located in
Japan, Korea or the United Kingdom to the extent such grants would violate
applicable laws in such countries; provided, that Parent Corporation shall use
its reasonable efforts to grant such options in compliance with applicable local
law as soon as practicable following the Closing; and provided, further, that
upon such grants being made, the respective vesting period for such grantee
shall begin as of the Closing Date, notwithstanding the date of option grant.''
8. Section 1.10 of the Merger Agreement is hereby amended by deleting from
the first sentence of the introductory paragraph thereof the words: "prior to
December 1, 2000."
9. Terms used in this Waiver and not otherwise defined herein have the
meanings set forth in the Merger Agreement.
[Remainder of Page Intentionally Left Blank]
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This Waiver may be executed in counterparts, each of which may be treated
as an original, but all of which together shall constitute one and the same
instrument.
IN WITNESS WHEREOF, the undersigned parties hereto have executed this
Irrevocable Acknowledgment and Waiver Agreement as of the day and year first
above written.
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MATTSON TECHNOLOGY, INC. CFM TECHNOLOGIES, INC.
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By:/s/ Brad Mattson By:/s/ Lorin J. Randall
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Brad Mattson Lorin J. Randall
Its: Chairman and Chief Executive Officer Its: Vice President and Chief Financial Officer
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