Agreement and Plan of Merger

Agreement and Plan of Merger
by and among


3D SYSTEMS, CORPORATION,
a Delaware corporation,


TIGER DEALS, INC.,
a Delaware corporation,


and


DTM CORPORATION,
a Texas corporation


Dated April 2, 2001


TABLE OF CONTENTS


ARTICLE 1. DEFINITIONS........................................................1


ARTICLE 2. THE TENDER OFFER..................................................10


2.1 THE TENDER OFFER...................................................10
2.2 COMPANY ACTIONS....................................................12
2.3 BOARD OF DIRECTORS.................................................14


ARTICLE 3. THE MERGER........................................................15


3.1 THE MERGER.........................................................15
3.2 MERGER CONSIDERATION AND CANCELLATION OF SHARES....................16
3.3 PAYMENT OF CASH FOR SHARES.........................................17
3.4 DISSENTING SHARES..................................................18
3.5 STOCK OPTIONS......................................................19
3.6 THE CLOSING........................................................20
3.7 DELIVERIES AT THE CLOSING..........................................20


ARTICLE 4. REPRESENTATIONS AND WARRANTIES CONCERNING PARENT
AND BUYER.........................................................21


4.1 ENTITY STATUS......................................................21
4.2 POWER AND AUTHORITY; ENFORCEABILITY................................21
4.3 CONSENTS AND APPROVALS; NO DEFAULTS................................21
4.4 CAPITALIZATION.....................................................22
4.5 LITIGATION.........................................................22
4.6 SHARE OWNERSHIP....................................................22
4.7 BUYER'S OPERATIONS.................................................22
4.8 BROKERS' FEES......................................................23
4.9 ABILITY TO CONSUMMATE THE TRANSACTIONS.............................23
4.10 STATEMENTS TRUE AND CORRECT........................................23
4.11 REGULATORY APPROVALS...............................................23


ARTICLE 5. REPRESENTATIONS AND WARRANTIES CONCERNING THE
ACQUIRED ENTITIES.................................................23


5.1 CORPORATE STATUS...................................................24
5.2 POWER AND AUTHORITY; ENFORCEABILITY................................24
5.3 CONSENTS AND APPROVALS; NO DEFAULTS................................24
5.4 BROKERS' FEES......................................................25
5.5 CAPITALIZATION.....................................................25
5.6 RECORDS............................................................25
5.7 ACQUIRED SUBSIDIARIES..............................................26
5.8 COMPANY REPORTS AND FINANCIAL STATEMENT............................26
5.9 SUBSEQUENT EVENTS..................................................27
5.10 INTENTIONALLY DELETED..............................................27
5.11 LEGAL COMPLIANCE...................................................27


Page i


5.12 TAX MATTERS........................................................28
5.13 TITLE TO ASSETS....................................................28
5.14 REAL PROPERTY AND LEASEHOLDS.......................................29
5.15 INTELLECTUAL PROPERTY..............................................29
5.16 INVENTORY..........................................................32
5.17 MATERIAL CONTRACTS; DEFAULTS.......................................32
5.18 RECEIVABLES........................................................33
5.19 INSURANCE..........................................................33
5.20 LITIGATION.........................................................33
5.21 PRODUCT WARRANTY...................................................33
5.22 PRODUCT LIABILITY..................................................34
5.23 LABOR; EMPLOYEES...................................................34
5.24 EMPLOYEE BENEFITS..................................................34
5.25 ENVIRONMENTAL, HEALTH, AND SAFETY MATTERS..........................36
5.26 STATEMENTS TRUE AND CORRECT........................................37
5.27 REGULATORY APPROVALS...............................................37
5.28 VOTE REQUIRED......................................................37
5.29 OPINION OF FINANCIAL ADVISOR.......................................38
5.30 TAKEOVER STATUTES..................................................38
5.31 REPRESENTATIONS COMPLETE...........................................38


ARTICLE 6. PRE-CLOSING COVENANTS.............................................38


6.1 NOTICES AND CONSENTS...............................................38
6.2 OPERATION OF BUSINESS..............................................39
6.3 ACCESS TO INFORMATION..............................................42
6.4 ACQUISITION PROPOSAL...............................................42
. 42
6.5 CHARGES, FEES, AND PREPAYMENT OBLIGATIONS..........................44
6.6 FINANCING..........................................................45
6.7 COVENANTS TO SATISFY CONDITIONS....................................45
6.8 DISCLOSURE PRIOR TO CLOSING........................................45
6.9 PUBLICITY..........................................................45
6.10 PREPARATION OF THE COMPANY PROXY STATEMENT;
COMPANY SHAREHOLDERS MEETING; MERGER WITHOUT A
COMPANY SHAREHOLDERS MEETING.......................................46
6.11 INDEMNIFICATION AND DIRECTORS' AND OFFICER'S INSURANCE.............46
6.12 EMPLOYEE BENEFITS..................................................48
6.13 WORKS IN PROGRESS/FINISHED GOODS...................................49


ARTICLE 7. INTENTIONALLY DELETED.............................................49


ARTICLE 8. CLOSING CONDITIONS................................................49


8.1 GENERAL CONDITIONS.................................................49


ARTICLE 9. TERMINATION.......................................................50


9.1 TERMINATION OF AGREEMENT...........................................50
9.2 MANNER AND EFFECT OF TERMINATION...................................52
9.3 CERTAIN PAYMENTS UPON TERMINATION..................................52


Page ii


ARTICLE 10. MISCELLANEOUS....................................................53


10.1 DISCLOSURE LETTERS.................................................53
10.2 ENTIRE AGREEMENT...................................................53
10.3 SUCCESSORS.........................................................53
10.4 ASSIGNMENTS........................................................54
10.5 NOTICES............................................................54
10.6 SPECIFIC PERFORMANCE...............................................55
10.7 TIME 55
10.8 COUNTERPARTS.......................................................55
10.9 HEADINGS...........................................................55
10.10 GOVERNING LAW......................................................56
10.11 AMENDMENTS AND WAIVERS.............................................56
10.12 SEVERABILITY.......................................................56
10.13 EXPENSES...........................................................56
10.14 CONSTRUCTION.......................................................56
10.15 NON-SURVIVAL OF REPRESENTATIONS AND WARRANTIES.....................57


ATTACHMENTS


Exhibits


Exhibit A Tender Agreement Exhibit B Certificates of Merger Exhibit C Form of the Company's Officers' Certificate Exhibit D Form of the Company's Secretary's Certificate Exhibit E Form of Parent's Officers' Certificate Exhibit F Form of Parent's Secretary's Certificate Exhibit G Form of Buyer's Officer's Certificate Exhibit H Form of Buyer's Secretary's Certificate


Annex A Offer Conditions


Page iii


AGREEMENT AND PLAN OF MERGER


This AGREEMENT AND PLAN OF MERGER (this "AGREEMENT") is entered into as of April 2, 2001 by and among 3D Systems Corporation, a Delaware corporation ("PARENT"), Tiger Deals, Inc., a Delaware corporation and an indirect wholly-owned subsidiary of Buyer ("BUYER"), and DTM Corporation, a Texas corporation (the "COMPANY," and together with its Subsidiaries from time to time (except as the context herein may otherwise require), the "ACQUIRED ENTITIES"), with respect to the facts and circumstances set forth below. Capitalized terms used herein without definition have the meanings set forth in ARTICLE 1 or elsewhere in this Agreement.


RECITALS


WHEREAS, the Company Board and the respective Board of Directors of each of Parent and Buyer each has approved and determined that it is fair, advisable and in the best interests of its respective stockholders to effect a merger of Buyer with and into the Company, with the Company as the surviving corporation, pursuant to the Certificates of Merger and upon the terms and subject to the conditions set forth herein;


WHEREAS, in furtherance thereof, it is proposed that Buyer shall, promptly following receipt by Parent of commitments in customary form from financial institutions or other equity or debt sources sufficient in amount to allow Buyer to consummate the Transactions (the "Financing Commitments"), commence a tender offer (the "OFFER") to acquire any and all of the outstanding shares of Company Common Stock at a price of $5.80 per share (such amount, or any greater amount per share paid pursuant to the Offer, being hereinafter referred to as the "OFFER PRICE"), net to the seller in cash, without interest, less any required withholding taxes, in accordance with the terms and subject to the conditions provided herein; and


WHEREAS, concurrently with the execution and delivery of this Agreement and as a condition and inducement to the willingness of Parent and Buyer to enter into this Agreement, certain Company Shareholders have entered into Tender and Voting Agreements, dated as of the date of this Agreement, in the form attached hereto as Exhibit A (the "TENDER AGREEMENT"), pursuant to which those shareholders have agreed to tender to Buyer all shares of Common Stock beneficially owned by those shareholders and to vote, if necessary, all voting securities of the Company beneficially owned by them in favor of approval and adoption of this Agreement and the Merger.


AGREEMENT


NOW, THEREFORE, in consideration of the foregoing and the mutual representations, warranties and covenants contained herein and intending to be legally bound, the parties hereto agree as follows:


ARTICLE 1.
DEFINITIONS


"14F-1 INFORMATION STATEMENT" is defined in SECTION 2.3(B).


Page 1


"ACQUIRED ENTITIES" is defined in the Preamble hereto.


"ACQUIRED SUBSIDIARY" means each wholly-owned subsidiary of the Company.


"ACQUISITION PROPOSAL" is defined in SECTION 6.4.


"ACTION" means any action, appeal, petition, plea, charge, complaint, claim, suit, litigation, arbitration, mediation, hearing, inquiry, investigation or similar event, occurrence or proceeding.


"AFFILIATE" with respect to any specified Person, means a Person that, directly or indirectly, through one or more intermediaries, controls or is controlled by, or is under common control with, such specified Person.


"AFFILIATED GROUP" means any affiliated group under Code Section 1504(a) or any similar group defined under provisions of applicable Law.


"BALANCE SHEET DATE" is defined in SECTION 5.8.


"BASIS" means any past or current fact, situation, circumstance, status, condition, activity, practice, plan, occurrence, event, incident, action, failure to act, or transaction about which the relevant Person has Knowledge that forms the Basis for any specified consequence.


"BREACH" means any Breach, inaccuracy, failure to perform, failure to comply, conflict with, default, violation, acceleration, termination, cancellation, modification, or required notification.


"BUSINESS DAY" means any day other than a day on which the NASDAQ is closed for trading.


"BUYER" is defined in the preamble to this Agreement.


"BUYER MEDICAL PLANS" is defined in Section 6.12(d).


"CASH AMOUNT" is defined in Section 3.5(a)


"CERTIFICATES OF MERGER" is defined in SECTION 3.1(B).


"CLOSING" is defined in SECTION 3.6.


"CLOSING DATE" is defined in SECTION 3.6.


"CODE" means the Internal Revenue Code of 1986, as amended.


"COMPANY" is defined in the preamble to this Agreement.


"COMPANY BOARD" means the Board of Directors of the Company.


"COMPANY COMMON STOCK" means the Company's common stock, $.0002 par value.


Page 2


"COMPANY DISCLOSURE LETTER" is defined in ARTICLE 5.


"COMPANY OPTION" is defined in SECTION 3.5.


"COMPANY PROXY STATEMENT" is defined in SECTION 6.10(A).


"COMPANY REPORTS" is defined in SECTION 5.8.


"COMPANY SHAREHOLDERS" means the shareholders of the Company as they may be constituted from time-to-time.


"CONFIDENTIALITY AGREEMENT" is defined in SECTION 6.3(C).


"CONFIDENTIAL INFORMATION" means any non-public information concerning the businesses and affairs of Parent or any Acquired Entity.


"CONSENT" means any consent, approval, notification, waiver, or other similar action required pursuant to a Contract.


"CONTRACT" means any Enforceable contract, agreement, arrangement, commitment, letter of intent, memorandum of understanding, promise, obligation, right, instrument, document, or other similar understanding, whether written or oral.


"COPYRIGHTS" means all copyrights in both published works and unpublished works including any registrations and applications therefor and whether registered or unregistered.


"CREDIT FACILITY" is defined in Section 6.3(f).


"DAMAGES" means all damages (including incidental and consequential damages), losses (including any diminution in value), Liabilities, payments, amounts paid in settlement, obligations, fines, penalties, costs, expenses (including reasonable fees and expenses of outside attorneys, accountants and other professional advisors and of expert witnesses and other costs (including the allocable portion of the Indemnitee's internal costs) of investigation, preparation and litigation in connection with any Action or Threatened Action) of any kind or nature whatsoever.


"DEVELOPERS" is defined in SECTION 5.15(D).


"DISCLOSURE LETTERS" means the Company Disclosure Letter and the Parent Disclosure Letter.


"DISSENTING SHARES" is defined in SECTION 3.4.


"DGCL" means the Delaware General Corporation Law.


"EFFECTIVE TIME" is defined in SECTION 3.1(B).


"EMPLOYEE BENEFIT PLANS" means all employee benefit plans or arrangements of any kind, including without limitation, bonus deferred compensation, incentive compensation, equity


Page 3


compensation, equity purchase, equity option, equity appreciation rights, restricted equity, severance or termination pay, fringe benefit, vacation, hospitalization, medical, life or other insurance, supplemental unemployment benefits, profit-sharing, savings, pension, retirement, or supplemental retirement plan, program, agreement or arrangement, whether or not a plan described in Section 3(3) of ERISA.


"EMPLOYEE PENSION BENEFIT PLAN" is defined in ERISA Section 3.2.


"EMPLOYEE WELFARE BENEFIT PLAN" is defined in ERISA Section 3.1.


"ENCUMBRANCE" means any Order, Security Interest, Contract, easement, covenant, community property interest, equitable interest, right of first refusal, or restriction of any kind, including any restriction on use, voting, transfer, receipt of income, or exercise of any other general attribute of ownership.


"ENFORCEABLE" - a Contract is "ENFORCEABLE" if it is the legal, valid, and binding obligation of the applicable Person, enforceable against such Person in accordance with its terms, except as such enforceability may be subject to the effects of bankruptcy, insolvency, reorganization, moratorium, or other Laws relating to or affecting the rights of creditors, and general principles of equity.


"ENVIRONMENT" means soil, land surface or subsurface strata, waters (including, navigable ocean, stream, pond, reservoirs, drainage, basins, wetland, ground, and drinking), sediments, ambient air (including indoor), plant life, animal life, and all other environmental media or natural resources.


"ENVIRONMENTAL, HEALTH, AND SAFETY REQUIREMENTS" means all Orders, Contracts and Laws concerning or relating to public health and safety, worker/occupational health and safety, and pollution or protection of the environment, including those relating to the presence, use, manufacturing, refining, production, generation, handling, transportation, treatment, transfer, storage, disposal, labeling, testing, processing, discharge, release, control, or other action or failure to act involving cleanup of any hazardous materials, substances or wastes, chemical substances or mixtures, pesticides, pollutants, contaminants, toxic chemicals, petroleum products or byproducts, asbestos, polychlorinated biphenyls or radiation, each as amended and as now in effect and in effect at Closing.


"EQUITY COMMITMENT" means (a) options, warrants, convertible securities, exchangeable securities, subscription rights, conversion rights, exchange rights, or other Contracts that could require a Person to issue any of its Equity Interests or to sell any Equity Interests it owns in another Person; (b) any other securities convertible into, exchangeable or exercisable for, or representing the right to subscribe for any Equity Interest of a Person or owned by a Person; (c) statutory pre-emptive rights or pre-emptive rights granted under a Person's Organizational Documents; and (d) stock appreciation rights, phantom stock, profit participation, or other similar rights with respect to a Person.


"EQUITY INTEREST" means (a) with respect to a corporation, any and all shares of capital stock and any Equity Commitments with respect thereto, (b) with respect to a partnership, limited liability company, trust or similar Person, any and all units, interests or other


Page 4


partnership/limited liability company interests, and any Equity Commitments with respect thereto, and (c) any other direct equity ownership or participation in a Person.


"ERISA" means the Employee Retirement Income Security Act of 1974, as amended.


"ERISA AFFILIATE" means each business or entity which is a member of a "controlled group of corporations," under "common control" or an "affiliated service group" with any Acquired Entity within the meaning of Sections 414(b), (c) or (m) of the Code, or required to be aggregated with any Acquired Entity under Section 414(o) of the Code, or is under "common control" with any Acquired Entity, within the meaning of Section 4001(a)(14) of ERISA.


"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.


"EXPENSES" is defined in SECTION 9.1. "EXPIRATION DATE" is defined in
SECTION 2.1(A).


"FINANCIAL ADVISOR" is defined in SECTION 2.2(A).


"FINANCIAL STATEMENTS" is defined in SECTION 5.8.


"FINANCING COMMITMENTS" is defined in the Recitals to this Agreement.


"FUNDING DATE" is defined in SECTION 6.10(A).


"GAAP" means United States generally accepted accounting principles.


"GOVERNMENTAL ENTITY" means any legislature, agency, bureau, branch, department, division, commission, court, tribunal, magistrate, justice, multi-national organization, quasi-governmental body, or other similar recognized organization or body of any federal, state, county, municipal, local, or foreign government or other similar recognized organization or body exercising similar powers or authority.


"HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.


"INDEMNIFIED LIABILITIES" is defined in SECTION 6.11(A).


"INDEMNIFIED PERSONS" is defined in SECTION 6.11(A).


"INDEPENDENT DIRECTORS" is defined in SECTION 2.3(C).


"INSURANCE POLICIES" is defined in SECTION 5.19.


"INSURED PARTIES" is defined in SECTION 6.11.


"INTELLECTUAL PROPERTY" means any Marks, Patents, Copyrights, Trade Secrets or rights, licenses, liens, security interests, charges, encumbrances, equities and other claims that any Person may have to claim ownership, authorship or invention, to use, to object to or prevent the


Page 5


modification of, to withdraw from circulation or control the publication or distribution of any Marks, Patents, Copyrights, or Trade Secrets.


"KNOWLEDGE" (i) when used in this Agreement with reference to the Company, shall be deemed to mean and refer to the actual knowledge of the Company's executive officers and directors after the Company's Chief Executive Officer and Chief Financial Officer have made due and diligent inquiry of those managerial employees of the Company whom such executive officers reasonably believe would have knowledge of the matters presented, and (ii) when used in this Agreement with reference to Parent or Buyer, shall be deemed to mean and refer to the actual knowledge of Parent's executive officers and directors after Parent's Chief Executive Officer and Chief Financial Officer have made due and diligent inquiry of those managerial employees of Parent whom such executive officers reasonably believe would have knowledge of the matters presented.


"LAW" means any law (statutory, common, or otherwise), constitution, treaty, convention, ordinance, code, rule, regulation, executive order, or other similar authority enacted, adopted, promulgated, or applied by any Governmental Entity, each as amended and now in effect.


"LEASED REAL ESTATE" is defined in SECTION 5.14(B).


"LIABILITY" means any liability or obligation, whether known or unknown, asserted or unasserted, absolute or contingent, matured or unmatured, conditional or unconditional, latent or patent, accrued or unaccrued, liquidated or unliquidated, or due or to become due.


"MARKS" means all fictitious business names, trading names, corporate names, registered and unregistered trademarks, service marks, designs and general intangibles of like nature and applications, together with all goodwill related to the foregoing.


"MATERIAL ADVERSE CHANGE (OR EFFECT)" means a change (or effect) that is materially adverse to the condition (financial or otherwise), properties, assets, Liabilities, rights, obligations, operations, results of operations or business of a Person, which in the case of the Company or Parent shall be viewed together with its respective Subsidiaries on a consolidated basis (other than, in the case of the Company, the following in and of themselves, either alone or in combination: (i) any effect or change occurring as a result of (A) general economic or financial conditions or (B) conditions affecting the Company's industry as a whole; (ii) any change or effect resulting from any announcement of the Agreement or Merger or the transactions contemplated in connection therewith, except that the termination or asserted termination or modification in any manner adverse to the Company, to any material Contract of the Company shall not fall within this subsection (ii); (iii) a change in the market price or trading volume of Company Common Stock; and (iv) a failure by the Company to meet the revenue or earnings predictions of equity analysts as reflected in any consensus estimate, or any other revenue or earnings predictions or expectations (other than those earnings predictions or expectations which have been disclosed publicly by the Company), for any period ending (or for which earnings are released) on or after the date of this Agreement and on or prior to the Closing Date).


Page 6


"MERGER" is defined in SECTION 3.1(A).


"MERGER CONSIDERATION" means the cash paid to the holders of the Shares pursuant to ARTICLE 3 hereof.


"MULTI-EMPLOYER PLAN" is defined in ERISA Section 3(37).


"NASD" means the National Association of Securities Dealers, Inc.


"NASDAQ" is defined in SECTION 3.5(B).


"ORDER" means any Order, ruling, decision, verdict, decree, writ, subpoena, mandate, precept, command, directive, consent, approval, award, judgment, injunction, or other similar determination or finding by, before, or under the supervision of any Governmental Entity, arbitrator or mediator.


"OFFER" is defined in the Recitals hereof.


"OFFER CONDITIONS" is defined in SECTION 2.1(A).


"OFFER DOCUMENTS" is defined in SECTION 2.1(B).


"OFFER PRICE" is defined in the Recitals hereof.


"OPTIONS" means the options to purchase shares of capital stock of the Company.


"ORDINARY COURSE OF BUSINESS" means, with respect to any Person, that Person's ordinary course of business consistent with past custom and practice (including with respect to quantity, quality and frequency).


"ORGANIZATIONAL DOCUMENTS" means the articles of incorporation, certificate of incorporation, charter, bylaws, articles of formation, regulations, operating agreement, certificate of limited partnership, partnership agreement, and all other similar documents, instruments or certificates executed, adopted, or filed in connection with the creation, formation, or organization of a non-natural Person, including any amendments thereto.


"OWNED REAL ESTATE" is defined in SECTION 5.14(A)


"PARENT" is defined in the preamble to this Agreement


"PARENT COMMON STOCK" means Parent's common stock, $.001 par value.


"PARENT DISCLOSURE LETTER" ...