SECOND AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This SECOND AMENDMENT TO AGREEMENT AND PLAN OF MERGER is dated as of July
30, 1997, by and among ADVANCED TECHNOLOGY MATERIALS, INC., a Delaware
corporation ("Buyer"), XXXX ACQUISITION CORPORATION, a Delaware corporation and
a wholly-owned subsidiary of Buyer ("Buyer Sub"), ATMI HOLDINGS, INC., a
Delaware corporation and wholly-owned subsidiary of Buyer ("Holdings") XXXXXXXX
SEMICONDUCTOR LABORATORIES, INC., an Arizona corporation ("LSL"), and XXXXXXXX
SEMICONDUCTOR LABORATORIES MARKETING AND SALES, INC., an Arizona corporation
("LSLMS"; LSL and LSLMS are referred to collectively as "Xxxxxxxx"); and all of
the parties are referred to collectively as the "Companies." Buyer Sub and
Xxxxxxxx are referred to collectively as the "Constituent Corporations" and
individually as a "Constituent Corporation."
The Companies are parties to that certain Agreement and Plan of Merger
dated May 17, 1997, as amended by First Amendment to Agreement and Plan of
Merger dated June 6, 1997 (as amended, the "Merger Agreement"), and wish to
amend further the Merger Agreement in order to limit the time period in which
certain claims for indemnification may be made.
In consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein, the parties agree as
follows:
1. Capitalized terms not otherwise defined herein shall have the meanings
provided in the Merger Agreement.
2. Section 10.1(f) is hereby amended to insert the following as a new final
sentence: "Notwithstanding the foregoing or anything in this Agreement to the
contrary, no claim seeking indemnification from the Shareholders or the
Indemnification Escrow may be brought after the date of issuance of the first
independent audit report with respect to the financial statements of Buyer (or
Holdings, if the closing of the transactions contemplated by the ADCS
Merger Agreement shall occur on or before the Effective Time) after the
Effective Time if such claim is of a type expected to be encountered in the
course of an audit performed in accordance with generally accepted auditing
standards."
3. Section 10.3 is hereby amended to insert the following as a new final
sentence: "Notwithstanding the foregoing or anything in this Agreement to the
contrary, no claim seeking indemnification from Buyer may be brought after the
date of issuance of the first independent audit report with respect to the
financial statements of Buyer (or Holdings, if the closing of the transactions
contemplated by the ADCS Merger Agreement shall occur on or before the Effective
Time) after the Effective Time if such claim is of a type expected to be
encountered in the course of an audit performed in accordance with generally
accepted auditing standards."
4. Section 5(d) of the form of Escrow Agreement attached to the Merger
Agreement as Exhibit D is hereby amended to insert the following as a new final
sentence: "Notwithstanding the foregoing or anything in this Agreement to the
contrary, no claim seeking indemnification from the Shareholders or the
Indemnification Escrow may be brought after the date of issuance of the first
independent audit report with respect to the financial statements of Buyer (or
Holdings, if the closing of the transactions contemplated by the ADCS Merger
Agreement shall occur on or before the Effective Time) after the Effective Time
if such claim is of a type expected to be encountered in the course of an audit
performed in accordance with generally accepted auditing standards."
5. Except as modified herein, the Agreement as originally executed and
previously amended is hereby ratified and affirmed and acknowledged to be the
legal, valid and binding obligations of each of the parties hereto.
6. This Amendment shall be governed by and construed in accordance with the
laws of the State of New York without giving effect to the provisions thereof
relating to conflicts of law.
7. This Amendment may be executed in two or more counterparts, each of
which shall be deemed to be an original but all of which shall constitute one
and the same agreement.
IN WITNESS WHEREOF, each of Buyer, Buyer Sub, Holdings and Xxxxxxxx has
caused this Amendment to be executed on its behalf by its officers thereunto
duly authorized, all as of the date first above written.
Advanced Technology Materials, Inc.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Vice President, Chief
Financial Officer
Xxxx Acquisition Corporation, a
Delaware corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
ATMI Holdings, Inc., a Delaware
corporation
By: /s/ Xxxxxx X. Xxxxxxx
---------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: Treasurer
Xxxxxxxx Semiconductor Laboratories,
Inc., an Arizona corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
Xxxxxxxx Semiconductor Laboratories
Marketing and Sales, Inc., an
Arizona corporation
By: /s/ Xxxxxxx X. Xxxxxxxx
---------------------------------
Name: Xxxxxxx X. Xxxxxxxx
Title: Chief Executive Officer
On May 30, 1997, the Company filed a Current Report on Form 8-K dated May
17, 1997 reporting in Item 5 thereof the execution of the LSL Agreement to
acquire all of the issued and outstanding equity interests in LSL. The LSL
Agreement is subject to shareholder approval and other customary conditions.
