EXHIBIT (a)
AGREEMENT AND PLAN OF MERGER
This AGREEMENT AND PLAN OF MERGER is dated as of May 17, 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."
Buyer and Holdings are parties to that certain Agreement and Plan of Merger
and Exchange dated April 7, 1997, by and among Buyer, Holdings, Advanced
Delivery & Chemical Systems Nevada, Inc., Advanced Delivery & Chemical Systems
Manager, Inc., Advanced Delivery & Chemical Systems Holdings, LLC, Advanced
Delivery & Chemical Systems Operating, LLC, and Advanced Delivery & Chemical
Systems, Ltd. (the "ADCS Merger Agreement").
In connection with the closing of the transactions contemplated by the ADCS
Merger Agreement, inter alia (i) all of the outstanding shares of Buyer common
stock, par value $.01 per share("Buyer Common Stock") will be converted into the
right to receive a like number of shares of Holdings common stock, par value
$.01 per share ("Holdings Common Stock"), and (ii) Buyer will become a
wholly-owned subsidiary of Holdings.
The respective Boards of Directors of the Companies deem it advisable and
in the best interests of their respective shareholders that Buyer acquire
Xxxxxxxx by the merger of Buyer Sub with and into Xxxxxxxx upon the terms and
subject to the conditions set forth in this Agreement (the "Merger").
The parties desire the Merger to be a tax-free reorganization under the
Internal Revenue Code of 1986, as amended, and for such transaction to be
accounted for as a pooling of interests.
In consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein, the parties agree as
follows:
ARTICLE I
THE MERGER
1.1 The Merger. Subject to the terms and conditions of this Agreement,
at the Effective Time (defined below) of the Merger, Buyer Sub shall be merged
with and into Xxxxxxxx, with Xxxxxxxx being the surviving corporation in such
Merger (the "Surviving Corporation"). The separate existence of Buyer Sub shall
thereupon cease. The Merger shall have the effects set forth in Section 10-1106
of the Arizona Business Corporation Act (the "ABCA") and Section 259 of the
Delaware General Corporation Law (the "DGCL"). Immediately following the
Effective Time, the Surviving Corporation shall be a wholly-owned subsidiary of
Buyer.
1.2 Effective Time of the Merger. The Merger shall become effective upon
the completion of the filing of properly executed Articles of Merger and a Plan
of Merger with the Arizona Corporation Commission and the Secretary of State of
the State of Delaware, which filing shall be made on the Closing Date (defined
below) after satisfaction of the conditions set forth in Article VIII. When used
in this Agreement, the term "Effective Time" shall mean the date and time at
which such Articles of Merger and Plan of Merger are accepted as filed.
ARTICLE II
BUYER AND THE SURVIVING CORPORATION
2.1 Articles of Incorporation of the Surviving Corporation. The Articles
of Incorporation of the Surviving Corporation shall be the Articles of
Incorporation of Xxxxxxxx, as amended in connection with the Merger to read in
its entirety (other than with respect to the name of the corporation) as the
Certificate of Incorporation of Buyer Sub in effect immediately prior to the
Effective Time, with such changes as Buyer may determine are necessary or proper
to comply with Arizona law, until thereafter amended as provided by law.
2.2 Bylaws of the Surviving Corporation. The Bylaws of the Surviving
Corporation shall be the Bylaws of Xxxxxxxx, as amended in connection with the
Merger to read in their entirety (other than with respect to the name of the
corporation) as the Bylaws of Buyer Sub in effect immediately prior to the
Effective Time, with such changes as Buyer may determine are necessary or proper
to comply with Arizona law, until thereafter amended as provided by law.
2.3 Directors and Officers of the Surviving Corporation.
(a) The directors of Buyer Sub at the Effective Time shall be
the initial directors of the Surviving Corporation and shall hold office from
the Effective Time until their respective successors are duly elected or
appointed and qualified in the manner provided in the Articles of Incorporation
and Bylaws of the Surviving Corporation, or as otherwise provided by law.
(b) The officers of Buyer Sub at the Effective Time shall be the
initial officers of the Surviving Corporation and shall hold office from the
Effective Time until removed or until their respective successors are duly
elected or appointed and qualified in the manner provided in the Articles of
Incorporation and Bylaws of the Surviving Corporation, or as otherwise provided
by law.
ARTICLE III
EXCHANGE OF SHARES
3.1 Disposition of Buyer Sub Shares; Xxxxxxxx Treasury Shares. At the
Effective Time, by virtue of the Merger and without any action on the part of
the holder thereof:
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(a) The shares of Buyer Sub common stock which shall be
outstanding immediately prior to the Effective Time shall be converted into a
number of shares of common stock of the Surviving Corporation equal to the
number of shares of common stock of Buyer Sub then outstanding.
(b) Each share of common stock of Xxxxxxxx ("Xxxxxxxx Share")
held in the treasury of Xxxxxxxx, if any, or by any subsidiary of Xxxxxxxx and
each such Xxxxxxxx Share held by Buyer or any subsidiary of Buyer immediately
prior to the Effective Time shall be canceled and retired and cease to exist,
and no consideration shall be given in exchange therefor.
3.2 Exchange of Xxxxxxxx Shares.
(a) Each Xxxxxxxx Share outstanding immediately prior to the
Effective Time (other than Xxxxxxxx Shares canceled as set forth in Subsection
3.1(b) above, if any) shall, at the Effective Time, by virtue of the Merger and
without any action on the part of the holder thereof, be converted into the
right to receive in shares of Buyer Common Stock, valued at the Average Closing
Price (defined in Section 3.9 below), an amount equal to that described in
Section 3.4 below divided by the number of Xxxxxxxx Shares outstanding
immediately prior to the Effective Time (subject to adjustment as provided in
Sections 3.4 and 3.5 and subject to reduction as provided in Article X and the
Escrow Agreement), ninety-five percent (95%) of which amount prior to adjustment
and reduction, if any (the "Preliminary Purchase Price Shares"), shall be issued
to the holder thereof upon the surrender of the certificate formerly
representing such Xxxxxxxx Share in accordance with this Section 3.2, and five
percent (5%) of which amount prior to adjustment and reduction, if any (the
"Indemnification Escrow Shares"), shall be held by the escrow agent (the "Escrow
Agent") as provided for in Subsection 10.1(c) hereof.
(b) Immediately following the Effective Time, each record holder
(a "Shareholder") of any certificate or certificates which, immediately prior to
the Effective Time, represented outstanding Xxxxxxxx Shares (the "Certificates")
whose Xxxxxxxx Shares were converted into the right to receive a portion of the
Purchase Price (defined below) shall be entitled to surrender his or its
Certificates to Buyer for cancellation in exchange for the Shareholder's pro
rata share of the Preliminary Purchase Price Shares, and Buyer hereby agrees to
cause such Shareholder's pro rata share of the Preliminary Purchase Price Shares
to be issued to such person at such time. If any Shareholder shall fail to
surrender his or its Certificates promptly following the Effective Time, Buyer
shall send to such Shareholder notice of the Merger and instructions for use in
effecting the surrender of the Certificates in exchange for the Shareholder's
pro rata share of the Purchase Price and the holder of such Certificates shall
be entitled to receive in exchange therefor solely the Shareholder's pro rata
share of the Purchase Price less any applicable stock transfer taxes, and such
Certificates shall forthwith be canceled. No interest shall be paid or accrued
for the benefit of holders of the Certificates on the consideration payable upon
the surrender of the Certificates. It shall be a condition of exchange that the
Certificate so surrendered shall be properly endorsed or otherwise in proper
form for transfer.
(c) From and after the Effective Time, there shall be no
transfers on the stock transfer books of the Surviving Corporation of the
Xxxxxxxx Shares which were outstanding immediately prior to the Effective Time.
If, after the Effective Time, Certificates are presented to the Surviving
Corporation for exchange, they shall be canceled and exchanged for a pro rata
share of the Preliminary Purchase Price Shares in accordance with the procedures
set forth in this Section and Section 3.4.
(d) At or prior to the Effective Time of the Merger, Buyer shall
deliver irrevocably to the Escrow Agent certificates evidencing the
Indemnification Escrow Shares, together with appropriate stock powers executed
by each Shareholder. As provided in Article X hereof, the Indemnification Escrow
Shares shall be held in escrow (the "Indemnification Escrow") by the Escrow
Agent. Income, dividends and earnings therefrom shall become funds of the
Indemnification Escrow to be disbursed as provided in Article X of this
Agreement and in the Escrow Agreement.
(e) Notwithstanding the foregoing, any Xxxxxxxx Shares issued
and outstanding immediately prior to the Effective Time which are held by
Shareholders who have not voted such shares in
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favor of the Merger and who have complied with all other relevant provisions of
Chapter 13 of the ABCA (the "Dissenting Shares") shall not be converted into
shares of Buyer Common Stock in the manner contemplated by Section 3.2(a) above,
and the rights of holders of the Dissenting Shares shall be governed by the
provisions of Chapter 13 of the ABCA; provided, however, that Shareholders that
own in the aggregate no greater than five percent (5%) of the issued and
outstanding Xxxxxxxx Shares who have not voted such shares in favor of the
Merger (the "Electing Shares") may elect, in lieu of following the provisions of
Chapter 13 of the ABCA, to receive from Buyer the Average Closing Price for each
share of Buyer Common Stock to which such Shareholder would have been entitled
had such Shareholder voted in favor of the Merger. Xxxxxxxx agrees to notify its
Shareholders in writing prior to the time the Merger is submitted to them for a
vote at any Shareholders' meeting or otherwise, of the foregoing election. To be
effective, such election must be made in writing to Xxxxxxxx and Buyer within
five (5) days of the date of such Shareholder meeting or other submission for a
vote.
(f) Notwithstanding the foregoing, if the closing of the
transactions contemplated by the ADCS Merger Agreement shall occur on or before
the Effective Time, in lieu of Buyer Common Stock each Xxxxxxxx Share shall be
converted into the right to receive Holdings Common Stock in the same ratio as
such Xxxxxxxx Shares would have been converted into shares of Buyer Common
Stock. In such event, all references to "Buyer Common Stock" in this Agreement
(other than in Article IV) shall be deemed to be references to "Holdings Common
Stock," unless the context clearly requires otherwise. The parties shall modify
the ancillary agreements to be entered into as of the Effective Time as
appropriate to reflect such change.
3.3 No Further Rights in Xxxxxxxx Shares. All shares of Buyer Common
Stock received by any Shareholder pursuant to this Agreement shall be deemed to
have been delivered and received in full satisfaction of all rights pertaining
to such Shareholder's Xxxxxxxx Shares. At the Effective Time, the holders of
certificates representing outstanding Xxxxxxxx Shares shall cease to have any
rights with respect to such shares (other than such rights as they may have as
dissenting shareholders under the ABCA), and their sole right shall be to
receive their pro rata share of the Purchase Price. Dissenting shareholders
shall have the rights accorded by the ABCA.
3.4 The Purchase Price. The aggregate merger consideration for all
outstanding Xxxxxxxx Shares shall be that number of shares of Buyer Common
Stock, valued at the Average Closing Price, having a value equal to Eighty
Million Dollars ($80,000,000) (the "Closing Price") plus an amount (the
Adjustment Amount, defined in Subsection 3.4(g) below), which may be a positive
or a negative number, as determined below, minus the amount of Two Million
Dollars ($2,000,000) required to be paid by LSL to Applied Materials, Inc.
("Applied") pursuant to LSL's settlement of its litigation with Applied (as
described in Section 5.7 and Schedule 5.7), minus any amounts owed to LSL by any
related parties as set forth in Schedule 5.26 and minus the cost to LSL of any
payment required to be made by LSL prior to the Effective Time to any third
party in connection with any other transaction contemplated by LSL, including
any payment in the nature of a required "break-up" fee (the "Specified Amount"),
subject to further reduction as provided in Article X and the Escrow Agreement
("Purchase Price").
(a) Within sixty (60) days after the Effective Time, the
Representative (defined in Subsection 3.6(a)(xix) below) shall cause to be
delivered to Buyer a combined balance sheet of Xxxxxxxx as of the close of
business at the Effective Time without inclusion of Xxxxxxxx Semiconductor
Research Laboratories, Inc. ("LSRL") or Xxxxxxxx Semiconductor Investments, Inc.
("LSI") (the "Effective Time Balance Sheet") together with the related combined
statements of income, shareholders' equity and cash flows for the time period
from January 1, 1997 to the Effective Time (the "Related Effective Time
Statements") audited by Lawrence's current independent accountants, which audit
shall include a physical inventory that representatives of Buyer may observe.
The Effective Time Balance Sheet and the Related Effective Time Statements shall
be prepared in accordance with generally accepted accounting principles applied
on a basis consistent with past practice, and the Effective Time Balance Sheet
shall fairly present the assets and liabilities and financial condition of
Xxxxxxxx at the Effective Time, including the tax savings to LSL as a result of
the payment of the Specified Amount, but not including the actual amount of the
Specified Amount. The reasonable cost of the audit pursuant to this Subsection
3.4(a) shall be borne by the Surviving Corporation. After the Effective Time,
Buyer agrees to give the Representative and
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Lawrence's current accountants reasonable access to Lawrence's books and records
and to make available to such parties such employees of Xxxxxxxx and the
Surviving Corporation as may be reasonably necessary in connection with the
preparation of the Effective Time Balance Sheet.
(b) The Effective Time Balance Sheet shall become final and
binding on Xxxxxxxx and Buyer thirty (30) days after its delivery to Buyer,
unless Buyer or Representative gives written notice to the other of his or its
disagreement with respect to any item included in such Effective Time Balance
Sheet. During said thirty (30) day period, Representative, Buyer and Buyer's
representatives shall be given reasonable access to all of the working papers of
Lawrence's current independent accountants for the purpose of its review of the
Effective Time Balance Sheet. The party making the objection shall notify the
other party in writing by the end of such thirty (30) day period of any
objection it may have to the Effective Time Balance Sheet, which objection shall
identify the basis of such objection and any adjustments to the Effective Time
Balance Sheet that it proposes be made (the "Proposed Adjustments").
(c) If written notice of objections to the Effective Time
Balance Sheet is given within the period specified in Subsection 3.4(b) above,
the party receiving the notice shall notify the party proposing the Proposed
Adjustment of his or its approval or disapproval of the Proposed Adjustments to
the Effective Time Balance Sheet contained in such written objection within
thirty (30) days of his or its receipt of such written objection. If the party
receiving the notice shall fail to notify the party proposing the Proposed
Adjustments in writing of his or its disapproval of the Proposed Adjustments
within said thirty (30) day period, such Proposed Adjustments shall be made to
the Effective Time Balance Sheet, and the Effective Time Balance Sheet, as so
adjusted, shall be final and binding upon all parties. If Representative and
Buyer cannot reach agreement with respect to the Proposed Adjustments and the
objections thereto within thirty (30) days of the date of receipt of the notice
of the Proposed Adjustments (or such longer period as may be acceptable to Buyer
and Representative), Buyer and Representative shall submit the Proposed
Adjustments in dispute to the Arbitrating Accountants (defined in Subsection
3.4(f) below) for resolution. The Arbitrating Accountants shall have no
authority (i) to decide any issues related to the Effective Time Balance Sheet
other than those issues expressly referred to them for arbitration pursuant to
the terms hereof, or (ii) to determine that any disputed Proposed Adjustment
shall be made in excess (negative or positive) of the amount originally proposed
by Buyer or Representative.
(d) If the parties submit a dispute to the Arbitrating
Accountants, the parties shall instruct the Arbitrating Accountants to resolve
the disputed Proposed Adjustments within thirty (30) business days after such
Proposed Adjustments are submitted to them, and such resolution shall be final
and binding upon all parties hereto. Upon such resolution, the adjustments to
the Effective Time Balance Sheet determined by the Arbitrating Accountants shall
be made and the Effective Time Balance Sheet, as so adjusted, shall be final and
binding upon all parties.
(e) The fees and expenses of the Arbitrating Accountants shall
be paid by Buyer; provided that the portion of such fees and expenses equal to
the lesser of (i) 100% or (ii) the percentage obtained by dividing (i) the
aggregate dollar amount of the adjustments to the Effective Time Balance Sheet
determined under Subsection 3.4(d) by (ii) the aggregate dollar amount of the
disputed Proposed Adjustments shall be reimbursed to Buyer from the
Indemnification Escrow. Representative shall have the right to retain legal
counsel of its choosing with regard to any dispute over the Adjustment Amount
(defined in Subsection 3.4(g) below), including Polese, Pietzsch, Xxxxxxxx &
Xxxxx, P.A., and the costs and expenses of such representation shall be paid
from the Adjustment Amount if that amount is a positive number and sufficient to
so pay the costs and expenses, or otherwise from the Indemnification Escrow.
(f) The "Arbitrating Accountants" shall be a "Big Six"
accounting firm that is mutually agreed to by Buyer and Representative.
(g) Upon the Effective Time Balance Sheet (including any
adjustments) becoming final and binding on all parties as set forth above, the
Adjustment Amount shall be determined by the Buyer. The "Adjustment Amount"
shall equal the difference between (x) the Net Worth (defined below) as shown on
the Effective Time Balance Sheet and (y) the Net Worth as shown on Lawrence's
unaudited balance sheet at December 31, 1996 without inclusion of LSRL or LSI.
"Net Worth" shall equal the amount
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by which assets exceed liabilities. Buyer and Representative shall provide
notice to the Shareholders of the Adjustment Amount and final Purchase Price
within two (2) business days of such amounts becoming final.
3.5 Adjustment of Purchase Price. If the Adjustment Amount is a positive
number, ninety-five percent (95%) of such amount shall be paid by Buyer to
Shareholders pro rata in shares of Buyer Common Stock valued at the Average
Closing Price and five percent (5%) to Escrow Agent (the "Escrow Adjustment") by
delivering appropriate certificates evidencing such shares within ten (10)
business days of determination. If the Adjustment Amount is a negative number,
it shall be paid to Buyer in shares of Buyer Common Stock valued at the Average
Closing Price from the Indemnification Escrow within ten (10) business days of
receipt of notice of determination.
3.6 Closing. The closing of the transactions contemplated by this
Agreement (the "Closing") shall take place at the offices of Xxxxxxx & Xxxxxxx
LLP, Xxx Xxxxxxxx Xxx, Xxxxxxxx, Xxxxxxxxxxx 00000, at 9:00 a.m., local time, on
the third business day after the day on which all of the conditions set forth in
Article VIII hereof are satisfied or waived, or such other date, time and place
as the Companies shall otherwise agree (the "Closing Date").
(a) At the Closing, Xxxxxxxx shall deliver to Buyer the following:
(i) Resolutions. Copies of resolutions of the Board of
Directors of Xxxxxxxx certified by a Secretary, Assistant Secretary or other
appropriate officer of Xxxxxxxx, plus certified copies of its Articles of
Incorporation and Bylaws, as amended to date, authorizing the execution,
delivery and performance of this Agreement and the transactions contemplated
hereby and copies of resolutions of the Shareholders of Xxxxxxxx (or written
consent in lieu thereof), certified by a Secretary, Assistant Secretary or other
appropriate officer of Xxxxxxxx, authorizing the execution, delivery and
performance of this Agreement and the transactions contemplated hereby.
(ii) Certificates, other than those held by any dissenting
shareholder, duly endorsed in blank or accompanied by appropriate stock powers.
(iii) Resignations of certain officers and all directors of
Xxxxxxxx effective as of the Effective Time, which Buyer shall request in
writing prior to the Closing.
(iv) Opinion of Polese, Pietzsch, Xxxxxxxx & Xxxxx, P.A.
in a form reasonably acceptable to Buyer.
(v) The Noncompete Agreement called for by Section 7.7.
(vi) The Consulting Agreement called for by Section 7.8.
(vii) Tax clearances from the Department of Economic
Security and the Arizona Department of Revenue, and all other jurisdictions in
which Xxxxxxxx has filed tax returns in the past three (3) years.
(viii) A certificate of good standing from the Arizona
Corporation Commission.
(ix) [Intentionally left blank]
(x) Releases substantially in the form of Exhibit
3.6(a)(x) hereto, executed by Xxxxxxx X. Xxxxxxxx and each other officer of
Xxxxxxxx, releasing Xxxxxxxx from any and all liabilities and obligations owed
by Xxxxxxxx to him, including but not limited to those owed to him in his
capacity as a director, officer, Shareholder and/or employee of Xxxxxxxx.
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(xi) Written evidence satisfactory to Buyer that the
Shareholders and Xxxxxxxx have obtained all necessary governmental or other
approvals for the Merger and the other transactions contemplated hereby.
(xii) Written evidence satisfactory to Buyer that all prior
outstanding options to purchase any capital stock of Xxxxxxxx have been properly
terminated.
(xiii) Each of the affiliates of Xxxxxxxx and Buyer shall
have entered into an Affiliate Agreement substantially in the form of Exhibit
3.6(a)(xiii)-A (the "Affiliate Agreements"), and Xxxxx X. Xxxxxxxx, Xxxxxx X.
XxXxxxxxxx, and Xxxxxxx X. Xxxxxx shall have entered into Employment Agreements
with the Surviving Corporation substantially in the form of Exhibit
3.6(a)(xiii)-B (the "Employment Agreements"). The existing employment
agreements listed on Schedule 5.8(b) shall have been terminated effective as of
the Closing.
(xiv) Written evidence satisfactory to Buyer that Xxxxxxxx
and LSLMS have been merged in accordance with applicable law, with Xxxxxxxx as
the surviving corporation, and that all consents and approvals necessary or
appropriate for such merger have been obtained.
(xv) Written evidence satisfactory to Buyer that Xxxxxxxx
has been reincorporated in Arizona in accordance with applicable law, and that
all consents and approvals necessary or appropriate for such reincorporation
have been obtained.
(xvi) A written amendment to the sublease of the Tempe
facility which causes the economic terms of such sublease to reflect accurately
Lawrence's current and intended future use of the Tempe facility, together with
the written consent of LSRL as sublessor to the Merger.
(xvii) (A) All amounts currently outstanding under that
certain Agreement by and among Xxxxxxxx, LSRL and LSLMS dated December 31, 1993
shall have been repaid in full or otherwise discharged in a manner satisfactory
to Buyer, and such Agreement terminated with no further liability thereunder;
(B) all other amounts currently outstanding by and among Xxxxxxxx, LSRL, LSLMS
and LSI shall have been repaid in full or otherwise discharged in a manner
satisfactory to Buyer; and (c) all amounts currently outstanding and owed by
Xxxxxxx X. Xxxxxxxx to Xxxxxxxx and LSLMS or from Xxxxxxxx and LSLMS to Xxxxxxx
X. Xxxxxxxx shall have been repaid in full or otherwise discharged in a manner
satisfactory to Buyer. In lieu of repayment of the net amount contemplated by
this Subsection 3.6(a)(xvii) in cash, the amounts may be satisfied by reducing
the Purchase Price, as contemplated by the second "minus" clause in the first
paragraph of this Section 3.4.
(xviii) Written releases of Xxxxxxxx and LSLMS from all
further obligations under those agreements, instruments, documents, etc.
identified prior to Closing by Buyer to which Xxxxxxxx and/or LSLMS are parties
or which either or both has guaranteed but which provide the principal benefit
to LSRL, LSI or Xxxxxxx X. Xxxxxxxx.
(xix) Each Shareholder shall have executed and delivered an
agreement and acknowledgment with respect to his or its liabilities and
obligations under Article X, in form and substance satisfactory to Buyer and its
counsel.
(xx) Each Shareholder shall have executed and delivered an
irrevocable power of attorney coupled with an interest constituting and
appointing Xxxxxxx X. Xxxxxxxx (the "Representative") as his or its true and
lawful agent and attorney-in-fact to enter into any agreement in connection with
the transactions contemplated by this Agreement and the Escrow Agreement, to
exercise all or any of the powers, authority and discretion conferred on him
under any such agreement, to waive any terms and conditions of any such
agreement, to give and receive notices on his or its behalf and to be his or its
exclusive representative with respect to any matter, suit, claim, action or
proceeding arising with respect to any transaction contemplated by any such
agreement, including, without limitation, the defense, settlement or compromise
of any claim, action or proceeding for which Buyer or any Indemnitee (defined in
Subsection 10.1(b) below) may be entitled to indemnification, and the
Representative shall have agreed to
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act as, and to undertake the duties and responsibilities of, such agent and
attorney-in-fact. The Representative shall not be liable for any action taken or
not taken by him in connection with his obligations under such power of attorney
(i) with the consent of Shareholders who, as of the date of this Agreement, own
a majority in number of the outstanding Xxxxxxxx Shares, or (ii) in the absence
of his own gross negligence or willful misconduct. If the Representative is
unable or unwilling to serve in such capacity, his successor shall be named by
those persons holding a majority of the outstanding Xxxxxxxx Shares as of the
Effective Time who shall serve and exercise the powers of the Representative.
(xxi) Such further instruments or documents as Buyer or
Buyer Sub or their counsel may reasonably request to assure the full and
effective completion of the Merger and to assure the effective carrying out of
the transactions contemplated hereby.
(b) At the Closing, Buyer shall deliver to Shareholders
certificates evidencing the Preliminary Purchase Price Shares in accordance with
Section 3.2 hereof.
(c) At the Closing, Buyer shall deliver to Escrow Agent
certificates evidencing the Indemnification Escrow Shares, in accordance with
Section 3.2 hereof.
(d) At the Closing, Buyer shall deliver to Xxxxxxxx the
following:
(i) Copies of resolutions of Buyer and Buyer Sub
certified by a Secretary, Assistant Secretary or other appropriate officer of
Buyer and Buyer Sub, authorizing the execution, delivery and performance of this
Agreement and the transactions contemplated hereby.
(ii) Opinion of Buyer's outside general counsel in a form
reasonably acceptable to Xxxxxxxx.
(iii) The Noncompete Agreement called for by Section 7.7.
(iv) The Consulting Agreement called for by Section 7.8.
(e) At the Closing, Buyer shall deliver to the Shareholders an
executed Registration Rights Agreement, in the form of Exhibit 3.6(e). If
Section 3.2(f) shall apply, in lieu of the foregoing, Holdings shall deliver to
the Shareholders an executed Registration Rights Agreement, in the form of
Exhibit 3.6(e) but substituting Holdings for Buyer as a party thereto.
3.7 Supplementary Actions. If, at any time after the Effective Time, any
further assignments or assurances in law or any other things are necessary or
desirable to vest or to perfect or confirm of record in the Surviving
Corporation the title to any property or rights of either Constituent
Corporation, or otherwise to carry out the provisions of this Agreement, the
officers and directors of the Surviving Corporation are hereby authorized and
empowered on behalf of the Constituent Corporations, in the name of and on
behalf of either Constituent Corporation as appropriate, to execute and deliver
any and all things necessary or proper to vest or to perfect or confirm title to
such property or rights in the Surviving Corporation and otherwise to carry out
the purposes and provisions of this Agreement.
3.8 No Fractional Securities. No fractional shares of Buyer Common Stock
shall be issuable by Buyer to any Shareholder in connection with the Merger. In
lieu of any such fractional shares, each Shareholder who would otherwise have
been entitled to receive a fraction of a share of Buyer Common Stock shall be
entitled to receive instead an amount in cash equal to such fraction multiplied
by the Average Closing Price.
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3.9 Average Closing Price.
(a) The term "Average Closing Price" shall mean the average
closing price of Buyer Common Stock on The Nasdaq National Market for each of
the twenty (20) trading days preceding (and including) the third trading day
prior to the date of Buyer's meeting of stockholders to approve the Merger;
provided that (i) in the event that the Average Closing Price is greater than
$21 per share, the Average Closing Price shall be deemed to be $21 per share;
and (ii) in the event that the Average Closing Price is less than $17 per share,
the Average Closing Price shall be deemed to be $17 per share.
(b) All per share prices or amounts referred to in this
Agreement shall be appropriately adjusted to reflect the effect of any stock
splits, stock dividends, or similar transactions.
3.10 Tax and Accounting Treatment. The parties intend that the Merger
will be treated as a reorganization within the meaning of Section 368 of the
Internal Revenue Code of 1986, as amended, and a pooling of interests for
accounting purposes.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF BUYER
4.1 Certain Definitions.
As used in Articles IV and V, the following terms shall have the
following meanings:
(a) The term "Material Adverse Effect" with respect to any party
hereto means any change or changes in, or effect or effects on, such party or
any of its subsidiaries that, individually or in the aggregate (i) is materially
adverse to the business, assets, or financial condition of such party and its
subsidiaries taken as a whole or (ii) may materially and adversely affect the
ability of such party to (A) operate or conduct its business substantially in
the manner in which it is currently operated or conducted or (B) substantially
perform its obligations hereunder and consummate the transactions contemplated
hereby.
(b) The word "subsidiary" when used with respect to any party
means any corporation or other organization, whether incorporated or
unincorporated, of which such party or any other subsidiary of such party is a
general partner (excluding partnerships the general partnership interests of
which held by such party or any subsidiary of such party do not have a majority
of the voting interests in such partnership) or of which at least a majority of
the securities or other interests having by their terms ordinary voting power to
elect a majority of the Board of Directors or others performing similar
functions with respect to such corporations or other organizations is directly
or indirectly owned or controlled by such party and/or by any one or more of the
subsidiaries, excluding in the case of Xxxxxxxx, LSRL and LSI.
(c) The term "Knowledge" with respect to Xxxxxxxx shall mean the
actual knowledge of any of the persons set forth on Schedule 4.1(c) and with
respect to Buyer shall mean the actual knowledge of Buyer's CEO and CFO, in each
case after conducting reasonable inquiry.
4.2 Buyer's and Buyer Sub's Representations and Warranties. Buyer and
Buyer Sub each represents and warrants to Xxxxxxxx as follows and acknowledges
that Xxxxxxxx is relying upon such representations and warranties in connection
with the execution, delivery, and performance of this Agreement and the
completion of the Merger, notwithstanding any investigation made by Xxxxxxxx or
on its own behalf.
(a) Each of Buyer and Buyer Sub is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has the corporate power to carry
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on its business as it is now being conducted or presently proposed to be
conducted and to own all of its properties and assets.
(b) Each of Buyer and Buyer Sub has the corporate power to enter
into this Agreement and to carry out its obligations hereunder. The execution
and delivery of this Agreement by Buyer and Buyer Sub and the consummation by
each of Buyer and Buyer Sub of the transactions contemplated hereby have been
duly authorized by the respective Boards of Directors of Buyer and Buyer Sub,
and this Agreement and each of the transactions contemplated hereby has been
approved by Buyer as the sole stockholder of Buyer Sub. No other corporate
proceedings on the part of either Buyer or Buyer Sub are necessary to approve
this Agreement or the transactions contemplated hereby, other than the approval
of Buyer's stockholders and this Agreement constitutes the valid and binding
obligation of Buyer and Buyer Sub, enforceable against each in accordance with
its terms.
(c) Except as set forth on Schedule 4.2(c) and except for
applicable requirements of state or foreign laws relating to takeovers, federal
and state securities or blue sky laws, filings with the Nasdaq Stock Market,
Inc. and filing of Agreement of Merger under the ABCA and the DGCL, no filing
with, and no permit, authorization, consent or approval of, any public body or
authority is necessary for the consummation by Buyer or Buyer Sub of the
transactions contemplated by this Agreement. Except as set forth on Schedule
4.2(c), neither the execution and delivery of this Agreement by Buyer or Buyer
Sub, nor the consummation by Buyer or Buyer Sub of the transactions contemplated
hereby, nor compliance by Buyer or Buyer Sub with any of the provisions hereof,
will (i) result in any breach of the Certificate of Incorporation or Bylaws of
Buyer or Buyer Sub, (ii) result in a violation or breach of, or constitute (with
or without due notice or lapse of time or both) a default (or give rise to any
right of termination, cancellation or acceleration) under, any of the terms,
conditions or provisions of any note, bond, mortgage, indenture, license,
contract, agreement or other instrument or obligation to which Buyer or any of
its subsidiaries is a party or by which any of them or any of their properties
or assets may be bound or (iii) violate any order, writ, injunction, decree,
statute, rule or regulation applicable to Buyer, any of its subsidiaries or any
of their properties or assets, except in the case of clauses (ii) and (iii) for
violations, breaches or defaults that would not have a Material Adverse Effect.
(d) Buyer agrees that, for a period of at least one year
following the Closing Date, the benefits provided under all Employee Benefit
Programs (defined in Subsection 5.9(a) below), with respect to participants who
are employed on the Closing Date, will be substantially similar to those
provided immediately prior to the Closing Date, provided that substantially
similar plans were provided by Buyer to its employees prior to the Effective
Time.
(e) Since November 23, 1993, Buyer has filed all forms, reports
and documents with the Securities and Exchange Commission ("SEC") required to be
filed by it pursuant to the federal securities laws and the rules and
regulations of the SEC (the "SEC Documents"). As of their respective filing
dates, the SEC Documents complied in all material respects with the requirements
of the Securities Exchange Act of 1934 (the "Exchange Act") or the Securities
Act of 1933 (the "Securities Act"), and none of the SEC Documents contained any
untrue statement of a material fact or omitted to state a material fact required
to be stated therein or necessary in order to make the statements made therein,
in light of the circumstances under which they were made, not misleading, except
to the extent corrected by a subsequently filed SEC Document.
(f) The authorized shares of capital stock of Buyer are as set
forth in its Annual Report on Form 10-K for the fiscal year ended December 31,
1996. All the issued and outstanding shares of Buyer Common Stock are and, upon
consummation of the transaction contemplated by this Agreement, will be duly
authorized, validly issued, fully paid and nonassessable. As of May 15, 1997,
Buyer had 8,804,820 shares of Common Stock outstanding, outstanding options to
purchase 1,142,806 shares of Buyer Common Stock under its option plans and
25,443 options available for issuance under such plans, and outstanding warrants
to purchase 161,250 shares of Buyer Common Stock.
(g) The audited consolidated balance sheets of Buyer and its
subsidiaries at December 31, 1994, 1995, and 1996 and the statements of
operations and changes in stockholders' equity and
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cash flows for the years ended December 31, 1994, 1995, and 1996, included in
the SEC Documents (the "Buyer Financial Statements") fairly present the
financial position and results of operations of Buyer and its subsidiaries as
for the periods then ended and the financial position of Buyer and its
subsidiaries at the dates thereof in accordance with generally accepted
accounting principles. Buyer has maintained its books of account in accordance
with applicable laws, rules and regulations of government authorities and with
generally accepted accounting principles consistently applied, and such books of
account are and, during the period covered by the Buyer Financial Statements,
were correct and complete in all material respects, fairly and accurately
reflect or reflected the income, expenses, assets and liabilities of Buyer,
including the nature thereof and the transactions giving rise thereto, and
provide or provided a fair and accurate basis for the preparation of the Buyer
Financial Statements
(h) Except as set forth in Schedule 4.2(h), neither the Buyer
nor any subsidiary has, nor at the Closing will have, any liabilities or
obligations, either absolute, accrued, contingent or otherwise, which
individually or in the aggregate are material to the financial condition and
business of the Buyer or any subsidiary and which (i) have not been reflected in
the Buyer Financial Statements, (ii) have not been described in this Agreement
or in any of the Schedules hereto, or (iii) have been incurred since December
31, 1996, other than in the ordinary course of its business consistent with past
practices.
(i) None of the information supplied or to be supplied by Buyer
for inclusion or incorporation by reference in (i) any registration statement
filed in connection with this Agreement will, at the time such registration
statement is filed with the SEC and at the time it becomes effective under the
Securities Act, contain any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the
statements therein, in light of the circumstances under which they are made, not
misleading and (ii) any proxy statement will, at the date mailed to stockholders
and at the times of the meetings of Buyer's stockholders to be held in
connection with the Merger, 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 are made, not misleading. Any proxy statement will comply as to form in all
material respects with the provisions of the Exchange Act and the rules and
regulations thereunder, and any registration statement will comply as to form in
all material respects with the provisions of the Securities Act and the rules
and regulations thereunder, except that no representation is made by Buyer with
respect to statements made therein based on information supplied by Xxxxxxxx or
any Shareholder for inclusion in any registration statement or proxy statement.
(j) Neither this Agreement nor any certificate or Schedule or
other information furnished by or on behalf of Buyer pursuant to this Agreement
contains any untrue statement of a material fact or, when this Agreement and
such certificates, Schedules and other information are taken in their entirety,
omits to state a material fact necessary to make the statements contained herein
or therein not misleading.
(k) Holdings was formed solely for the purpose of engaging in
the transactions contemplated by the ADCS Merger Agreement and this Agreement.
As of the date hereof and the Effective Time, except for obligations or
liabilities incurred in connection with its incorporation or organization and
the transactions contemplated by the ADCS Merger Agreement and this Agreement,
Holdings does not have and will not have incurred any obligations or liabilities
or engaged in any business activities of any type or kind whatsoever or entered
into any agreements or arrangements with any person.
ARTICLE V
REPRESENTATIONS AND WARRANTIES OF XXXXXXXX
Xxxxxxxx represents and warrants to Buyer and Buyer Sub as follows and
acknowledges and confirms that Buyer and Buyer Sub are relying upon such
representations and warranties in connection with the execution, delivery and
performance of this Agreement and the completion of the Merger, notwithstanding
any investigation made by Buyer or Buyer Sub or on their behalf:
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5.1 Organization; Permits. Xxxxxxxx is a corporation duly organized,
validly existing and in good standing under the laws of its jurisdiction of
incorporation and has the corporate power to carry on its business as it is now
being conducted and to own all of its properties and assets. True and complete
copies of the Articles of Incorporation and Bylaws of Xxxxxxxx with all
amendments and restatements thereto through the date hereof have been provided
to Buyer prior to the date hereof. Xxxxxxxx is duly qualified as a foreign
corporation to do business, and is in good standing in each jurisdiction where
the character of its properties owned or held under lease or the nature of its
activities makes such qualification necessary, except where the failure to be so
qualified will not have a Material Adverse Effect. Xxxxxxxx has all business
licenses, permits and approvals necessary to conduct its business as presently
conducted, except where the failure to have such permit or approval does not
have a Material Adverse Effect. Xxxxxxxx conducts its business under the trade
names and other assumed names set forth on Schedule 5.1.
5.2 Capitalization; Shareholders. As of the date hereof, the authorized
capital stock of Xxxxxxxx, the number and class of Xxxxxxxx Shares which are
issued and outstanding, and all persons having record or beneficial ownership of
shares of the capital stock of Xxxxxxxx or having any right to purchase, acquire
or obtain any of the capital stock of Xxxxxxxx are as set forth on Schedule 5.2.
Schedule 5.2 also sets forth the foregoing information on a pro forma basis
taking into account the merger of Xxxxxxxx and LSLMS. All of the issued and
outstanding Xxxxxxxx Shares are validly issued, fully paid and nonassessable and
not subject to any lien, charge or encumbrance, and were issued in compliance
with applicable federal and state securities laws. Xxxxxxxx is not, and prior to
the Effective Time will not become, a party to or subject to any contract or
obligation wherein any person has a right or option to purchase or acquire any
rights in any additional capital stock or other equity securities of Xxxxxxxx or
any of its subsidiaries, including any stock option plan, stock appreciation
rights plan, restricted stock plan or stock purchase plan. Xxxxxxxx does not
hold or own, directly or indirectly, any capital stock of any other corporation,
or have any direct or indirect equity or ownership interest in any association,
partnership, joint venture or other entity. To Lawrence's Knowledge, no officer,
director, or Shareholder of Xxxxxxxx would be unable to give the representation
that none of the events or circumstances described in Rule 262 of Regulation A
under the Securities Act have occurred.
5.3 Authority Relative to this Agreement. Xxxxxxxx has the corporate
power to enter into this Agreement and to carry out its obligations hereunder.
The execution and delivery of this Agreement by Xxxxxxxx and the consummation by
Xxxxxxxx of the transactions contemplated hereby have been duly authorized by
the Board of Directors of Xxxxxxxx, and no other corporate proceedings on the
part of Xxxxxxxx are necessary to approve this Agreement or the transactions
contemplated hereby. This Agreement constitutes the legal, valid and binding
obligation of Xxxxxxxx, enforceable against it in accordance with the
Agreement's terms.
5.4 Consents and Approvals; No Violations. Except as set forth on
Schedule 5.4 and except for applicable requirements of state or foreign laws
relating to takeovers, state securities or blue sky laws, and filing of
Agreement of Merger under the ABCA and the DGCL, no filing with, and no permit,
authorization, consent or approval of, any public body or authority is necessary
for the consummation by Xxxxxxxx of the transactions contemplated by this
Agreement. Except as set forth on Schedule 5.4, neither the execution and
delivery of this Agreement by Xxxxxxxx, nor the consummation by Xxxxxxxx of the
transactions contemplated hereby, nor compliance by Xxxxxxxx with any of the
provisions hereof, will (i) result in any breach of the Articles of
Incorporation or Bylaws of Xxxxxxxx, (ii) result in a violation or breach of, or
constitute (with or without due notice or lapse of time or both) a default (or
give rise to any right of termination, cancellation or acceleration) under, any
of the terms, conditions or provisions of any note, bond, mortgage, indenture,
license, contract, agreement or other instrument or obligation to which Xxxxxxxx
is a party or by which it or any of its properties or assets may be bound or
(iii) violate any order, writ, injunction, decree, statute, rule, regulation or
permit applicable to Xxxxxxxx or any of its properties or assets, except in the
case of clauses (ii) and (iii) for violations, breaches or defaults that would
not have a Material Adverse Effect.
5.5 Financial Statements. Xxxxxxxx has furnished to Buyer Lawrence's
audited combined financial statements (combined balance sheets, combined
statements of
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income, combined statements of shareholders' equity and combined statements of
cash flows) at and for each of the twelve-month periods ended December 31, 1993,
December 31, 1994, December 31, 1995, and December 31, 1996, and the three-month
period ended March 31, 1997, all restated so as to exclude LSRL and LSI
(collectively, the "Xxxxxxxx Financial Statements"). Except as set forth on
Schedule 5.5, each of the balance sheets (including the related notes) included
in the Xxxxxxxx Financial Statements fairly presents in all material respects
the financial position of Xxxxxxxx as of the respective dates thereof, and the
other related statements (including the related notes) included therein fairly
present in all material respects the results of operations and cash flows of
Xxxxxxxx for the respective periods or as of the respective dates set forth
therein, all in conformity with generally accepted accounting principles
consistently applied during the periods involved, except as otherwise noted
therein and subject, in the case of the interim financial statements, to normal
year-end adjustments and any other adjustments described therein and the absence
of any notes thereto.
5.6 Absence of Certain Changes or Events. Other than as permitted under
Section 6.1 and except as set forth on Schedule 5.6, since December 31, 1996 and
through the date hereof, Xxxxxxxx has not suffered a Material Adverse Effect and
Xxxxxxxx has not (i) declared any dividend or made any payment or other
distribution in respect of any shares of its capital stock, (ii) acquired or
disposed of any shares of its capital stock or granted any options, warrants or
other rights to acquire or convert any obligation into any shares of its capital
stock, (iii) entered into any material transaction with any officer, director,
employee or any known relative thereof or any entity in which such person has an
interest, except the payment of rent, salaries, wages and expense reimbursement
in the ordinary course of business, (iv) incurred any material obligation or
liability (contingent or otherwise), except for (A) this Agreement, (B) normal
trade and other obligations incurred in the ordinary course of business
consistent with past practice and (C) obligations under contracts, agreements
and leases incurred in the ordinary course of business consistent with past
practice, the performance of which has not and will not, individually or in the
aggregate, have a Material Adverse Effect on Xxxxxxxx, (v) discharged or
satisfied any material lien or other encumbrance or paid any material obligation
or liability (fixed or contingent), except in the ordinary course of business or
as contemplated by this Agreement, (vi) mortgaged, pledged or subjected to any
lien or other encumbrance any of its material assets (whether tangible or
intangible), (vii) sold, assigned, transferred, conveyed, leased or otherwise
disposed of or agreed to sell, lease or otherwise dispose of any of its material
assets except for sales of inventory or other assets for fair consideration in
the ordinary course of business or as contemplated by this Agreement, (viii)
canceled or compromised any material debt or claim, except in the ordinary
course of business, (ix) waived or released any material rights, except for
waivers or releases made in the ordinary course of business consistent with past
practice, (x) made any single capital expenditure in excess of One Hundred
Thousand Dollars ($100,000), or entered into any commitment therefor, or (xi)
suffered any material casualty loss or damage, whether or not covered by
insurance, or any adverse ruling, judgment or award, whether or not amounts were
reserved on Lawrence's books, which would have a Material Adverse Effect on
Xxxxxxxx.
5.7 Litigation. Except as set forth on Schedule 5.7, as of the date of
this Agreement, (a) there is no action, suit, judicial or administrative
proceeding, arbitration or investigation pending or, to Lawrence's Knowledge,
threatened against or involving Xxxxxxxx, or any of its properties or rights,
before any court, arbitrator, or administrative or governmental body; (b) there
is no judgment, decree, injunction, rule or order of any court, governmental
department, commission, agency, instrumentality or arbitrator outstanding
against Xxxxxxxx; and (c) Xxxxxxxx is not in violation of any term of any
judgments, decrees, injunctions or orders outstanding against it. An action,
suit, proceeding, arbitration or investigation shall be considered "threatened"
for purposes of this Article V if Xxxxxxxx has received written notice or
otherwise has Knowledge that such event may be commenced. Except as set forth on
Schedule 5.7, to Lawrence's Knowledge there are no existing facts or conditions
which reasonably would be expected to give rise to any charge, claim,
litigation, proceeding, or investigation.
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5.8 Contracts.
(a) Set forth on Schedule 5.8(a) is a list of all contracts,
instruments, mortgages, notes, security agreements, leases, agreements or
understandings to which Xxxxxxxx is a party and which are material to the
business of Xxxxxxxx or which exceed $50,000. Each of the contracts,
instruments, mortgages, notes, security agreements, leases, agreements or
understandings to which Xxxxxxxx is a party that relates to or affects the
assets or operations of Xxxxxxxx or to which Xxxxxxxx or its assets or
operations may be bound or subject is a valid and binding obligation of Xxxxxxxx
and, to Lawrence's Knowledge, of the other parties thereto and is in full force
and effect, except for where the failure to be in full force and effect would
not individually or in the aggregate have a Material Adverse Effect. Except to
the extent that the consummation of the transactions contemplated by this
Agreement may require the consent of third parties as identified on Schedule
5.4, there are no existing defaults by Xxxxxxxx thereunder or, to the Knowledge
of Xxxxxxxx, by any other party thereto, which defaults, individually or in the
aggregate, would have a Material Adverse Effect; and no event of default has
occurred, and no event, condition or occurrence exists, that (whether with or
without notice, lapse of time or the happening or occurrence of any other event)
would constitute a default by Xxxxxxxx thereunder which default would,
individually or in the aggregate, have a Material Adverse Effect.
(b) Except as set forth on Schedule 5.8(b), as of the date of
this Agreement, Xxxxxxxx is not a party to any oral or written (i) consulting
agreement not terminable on sixty (60) days or less notice involving the payment
of more than Fifty Thousand Dollars ($50,000) per annum, (ii) joint venture
agreement, (iii) noncompetition or similar agreement that restricts Xxxxxxxx
from engaging in a line of business, (iv) agreement with any executive officer
or other employee of Xxxxxxxx the benefits of which are contingent, or the terms
of which are materially altered, upon the occurrence of a transaction involving
Xxxxxxxx of the nature contemplated by this Agreement and which provides for the
payment of in excess of Fifty Thousand Dollars ($50,000), (v) agreement with
respect to any executive officer of Xxxxxxxx or any subsidiary providing any
term of employment or compensation guaranty in excess of Fifty Thousand Dollars
($50,000) per annum, (vi) agreement or plan, including any stock option plan,
stock appreciation rights plan, restricted stock plan or stock purchase plan,
any of the benefits of which will be increased, or the vesting of the benefits
of which will be accelerated, by the occurrence of any of the transactions
contemplated by this Agreement or the value of any of the benefits of which will
be calculated on the basis of any of the transactions contemplated by this
Agreement, (vii) (A) any agreement providing for disposition of any line of
business, material assets or securities of Xxxxxxxx, (B) any agreement with
respect to the acquisition of any line of business, material assets or
securities of any other business, or (C) any agreement of merger or
consolidation or letter of intent with respect to the foregoing, or (viii) any
agreement to indemnify any other party with respect to an adverse environmental
condition.
5.9 Employee Benefit Plans.
(a) Schedule 5.9(a) lists each "employee benefit plan" (within
the meaning of section 3(3) of the Employee Retirement Income Security Act of
1974, as amended ("ERISA")) that is maintained or otherwise contributed to by
Xxxxxxxx for the benefit of its employees (including, without limitation,
pension, profit sharing, stock bonus, medical reimbursement, life insurance,
disability and severance pay plans) (collectively, "Company Plans") and all
other employee benefit plans providing for deferred compensation, bonuses, stock
options, employee insurance coverage or any similar compensation or welfare
benefit plan (collectively, "Benefit Arrangements" and, together with Company
Plans, collectively referred to as "Employee Benefit Programs").
(b) With respect to each of the Company Plans, Xxxxxxxx has made
available to Buyer a current, accurate and complete copy (or, to the extent no
such copy exists, an accurate description) thereof (including all existing
amendments thereto that shall become effective at a later date) and, to the
extent applicable, (i) any related trust agreement, annuity contract or other
funding instrument; and (ii) any summary plan description.
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(c) (i) Each of the Employee Benefit Programs has been
established and administered in compliance with any applicable provisions of
ERISA, the Internal Revenue Code of 1986, as amended (the "Code"), and the terms
of all documents relating to such programs; (ii) each Company Plan that is
intended to be qualified within the meaning of section 401(a) of the Code has
received a favorable determination letter as to its qualification; (iii) as of
the date of this Agreement, no "reportable event" (as such term is used in
section 4043 of ERISA) other than an event of a type as to which the Pension
Benefit Guaranty Corporation has waived the reporting requirements, "prohibited
transaction" (as such term is used in section 4975 of the Code or section 406 of
ERISA) or "accumulated funding deficiency" (as such term is used in section 412
or 4971 of the Code) has heretofore occurred with respect to any Company Plan;
and (iv) there are no pending or, to Lawrence's Knowledge, threatened, actions,
claims or lawsuits which have been asserted or instituted against the Employee
Benefit Programs, the assets of any of the trusts under such plans or the plan
sponsor or the plan administrator, or against any fiduciary of the Employee
Benefit Programs with respect to the operation of such plans (other than routine
benefit claims).
(d) Xxxxxxxx does not maintain or contribute to any
"multiemployer plan" (as such term is defined in section 3(37) of ERISA) and has
not incurred any material liability that remains unsatisfied with respect to any
such plans.
(e) No Employee Benefit Program (other than one which is an
employee pension benefit plan within the meaning of Section 3(2)(A) of ERISA)
provides benefits (including, without limitation, death, health or medical
benefits, whether or not insured) with respect to current or former employees of
Xxxxxxxx beyond their retirement or other termination of service with Xxxxxxxx,
other than (a) coverage mandated by applicable law, (b) deferred compensation
benefits which have been accrued as liabilities on the books of Xxxxxxxx, (c)
benefits the full cost of which is borne by the current or former employees (or
their beneficiaries), or (d) benefits which have already been satisfied in full.
5.10 Regulatory Authority Matters.
(a) Except as set forth in Schedule 5.10(a), Xxxxxxxx is, and
the products sold by Xxxxxxxx are, in compliance in all material respects with
all applicable statutes, rules, regulations, standards, guides or orders
administered or issued by any federal, state or local agency or governmental
body having regulatory authority over such products (the "Regulatory Agencies").
(b) Except as set forth in Schedule 5.10(b), Xxxxxxxx has not
received from the Regulatory Agencies, and has no Knowledge of any facts that
would furnish any reasonable basis for, any notice of adverse findings,
regulatory letters, warning letters or other similar communications from the
Regulatory Agencies, and there have been no seizures conducted or threatened by
the Regulatory Agencies, and no recalls, field notifications or alerts
conducted, requested or threatened by the Regulatory Agencies relating to the
products sold by Xxxxxxxx or any of its subsidiaries.
(c) Except as set forth on Schedule 5.10(c), Xxxxxxxx is not
aware of any facts which are reasonably likely to cause (i) the denial,
withdrawal, recall or suspension of any products sold or intended to be sold by
Xxxxxxxx or any of its subsidiaries, or (ii) a change in the marketing
classification or labeling of any such products, or (iii) a termination or
suspension of marketing of any such products.
(d) Except as set forth on Schedule 5.10(d), none of the
products manufactured, marketed or sold by Xxxxxxxx has been recalled or subject
to a field notification (whether voluntarily or otherwise), and Xxxxxxxx has not
received notice (whether completed or pending) of any proceeding seeking recall,
suspension or seizure of any products sold or proposed to be sold by Xxxxxxxx or
any of its subsidiaries.
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5.11 Intellectual Property.
(a) Schedule 5.11(a) contains an accurate and complete list of
(i) all patents, applications for patents, registrations of trademarks
(including service marks) and applications therefor, registrations of copyrights
and applications therefor that are owned by Xxxxxxxx and that are part of the
business of Xxxxxxxx as presently conducted; (ii) all other intellectual
property rights that are owned by Xxxxxxxx and that are material to the conduct
of business as presently conducted; (iii) all unexpired licenses relating to
such of Lawrence's intellectual property rights that have been granted to or by
Xxxxxxxx and that are material to the conduct of the business of Xxxxxxxx as
presently conducted, but excluding end-user licenses granted to Xxxxxxxx
relating to standard "off-the-shelf" personal computer software that is
generally available on commercially reasonable terms from vendors that are
unaffiliated with Xxxxxxxx, including software made available from such vendors
on a "shrink wrap license" basis ("Non-Scheduled Licenses"); and (iv) all other
agreements relating to intellectual property rights that are material to the
conduct of the business of Xxxxxxxx as presently conducted, but excluding the
Non-Scheduled Licenses (collectively, items (i)-(iv) are referred to as
"Xxxxxxxx Intellectual Property Rights").
(b) Xxxxxxxx owns and has the right to use, and license others
to use, all Xxxxxxxx Intellectual Property Rights that are material to the
conduct of the business of Xxxxxxxx as presently conducted, and such ownership
and right to use, and license of others to use, are free and clear of, and
without liability under, all liens and security interests of third parties. Such
ownership and right to use, and license of others to use, are free and clear of,
and without liability under, all claims and rights of third parties that, if
determined to be legally protectable, could have a Material Adverse Effect.
(c) Xxxxxxxx has taken reasonable steps sufficient to safeguard
and maintain the secrecy and confidentiality of, and its proprietary rights in,
the unpatented know-how, technology, proprietary processes, formulae, and other
information that is material to the conduct of the business of Xxxxxxxx as
presently conducted. Without limiting the generality of the foregoing, Xxxxxxxx
has obtained confidentiality and inventions assignment agreements from all of
Lawrence's past and present employees and independent contractors involved in
the creation or development of Xxxxxxxx Intellectual Property Rights including,
without limitation, from all employees and contractors who are inventors,
authors, creators or developers of Xxxxxxxx Intellectual Property Rights that
are material to the conduct of the business as presently conducted. Schedule
5.11(c) lists all nondisclosure agreements to which Xxxxxxxx is a party or by
which it is bound.
(d) Except as set forth on Schedule 5.11(d) and except for
payments made with respect to patents and patent applications, there are no
royalties, honoraria, fees or other payments payable by Xxxxxxxx to any person
by reason of the ownership, use, license, sale or disposition of any Xxxxxxxx
Intellectual Property Right.
(e) Except as set forth on Schedule 5.11(e), Xxxxxxxx has not
received notice that Xxxxxxxx is infringing in the conduct of the business upon
the right or claimed right of any other party with respect to any Xxxxxxxx
Intellectual Property Rights, nor does Xxxxxxxx have any Knowledge of any
alleged or claimed infringement by any product or process manufactured, used,
sold or under development by or for Xxxxxxxx in the conduct of the business of
Xxxxxxxx as presently conducted.
(f) For purposes of this Section 5.11, "use" with respect to
intellectual property rights includes make, reproduce, display or perform
(publicly or otherwise), prepare derivative works based on, sell, distribute,
disclose and otherwise exploit such intellectual property rights and products
incorporating or subject to such intellectual property rights. No reference in
this Section 5.11 to Lawrence's right to use the Xxxxxxxx Intellectual Property
Rights shall be construed as a representation or warranty as to the validity of
an issued patent included in the Xxxxxxxx Intellectual Property Rights.
(g) To Lawrence's Knowledge, the Xxxxxxxx Intellectual Property
Rights are free of any unresolved ownership disputes with respect to any third
party, and there is no unauthorized use,
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infringement or misappropriation of any of such Xxxxxxxx Intellectual Property
Rights by any third party, including any employee or former employee of
Xxxxxxxx.
5.12 Owned Property; Xxxxxxxx Facilities.
(a) Schedule 5.12(a) sets forth, by address, owner and usage,
all real property owned by Xxxxxxxx.
(b) Schedule 5.12(b) sets forth, by address, owner and usage,
all material real property agreements (including any amendments thereto) (the
"Real Property Leases") pursuant to which Xxxxxxxx leases, subleases or
otherwise occupies or leased, sublet or otherwise occupied during the past five
(5) years any plants, offices, manufacturing facilities, warehouses,
improvements, administration buildings and all other real property (the
"Xxxxxxxx Facilities"). There are no defaults or events which, with the passage
of time, would constitute a default under the Real Property Leases, except in
either instance for defaults which individually or in the aggregate would not
have a Material Adverse Effect on Xxxxxxxx.
(c) Xxxxxxxx owns, leases or has the right to use all material
fixtures, furniture, improvements, machinery or equipment necessary to conduct
its business as currently conducted (the "Equipment Leases"). There are no
defaults or events which, with the passage of time, would constitute a default
under the Equipment Leases, except in either instance for defaults which
individually or in the aggregate would not have a Material Adverse Effect on
Xxxxxxxx.
5.13 Compliance With Legislation Regulating Environmental Quality.
(a) For the purposes of this Agreement, the term "Environmental
Laws" shall mean all federal, foreign, state and local environmental protection,
occupational, health and safety or similar laws, ordinances, restrictions,
licenses, rules, regulations and permit conditions, including but not limited to
the Federal Water Pollution Control Act, Resource Conservation & Recovery Act,
Safe Drinking Water Act, Toxic Substances Control Act, Clean Air Act,
Comprehensive Environmental Response, Compensation and Liability Act, Emergency
Planning and Community Right to Know or other United States or foreign, federal,
state, province, or local laws of similar effect, each as amended as of the
Effective Time, and the term "Hazardous Materials" shall mean any hazardous or
toxic substances, wastes or materials, including without limitation petroleum or
petroleum products, defined as such or regulated by any applicable Environmental
Law or governmental agencies.
(b) Except as set forth on Schedule 5.13(b), (i) Xxxxxxxx has
not received any written notices, directives, violation reports, actions or
claims from or by (A) any local, state, federal or foreign governmental agency
concerning Environmental Laws or (B) any person alleging that, in connection
with Hazardous Materials, conditions at any of the Xxxxxxxx Facilities or
Lawrence's acts or omissions have resulted in or caused or threatened to result
in or cause injury or death to any person or damage to any property, including
without limitation, damage to natural resources and, to Lawrence's Knowledge, no
such notices, directives, violation reports, actions, claims or allegations
exist; (ii) the Xxxxxxxx Facilities and the business operated by Xxxxxxxx are
in compliance with all applicable state, federal, foreign and local
Environmental Laws, except where any noncompliance with Environmental Laws would
not have a Material Adverse Effect on Xxxxxxxx; (iii) no underground storage
tanks have been installed by Xxxxxxxx and to Lawrence's Knowledge none either
are or have been located at any of the Xxxxxxxx Facilities; and (iv) to
Lawrence's Knowledge, no friable asbestos or PCBs have been located at any of
the Xxxxxxxx Facilities.
(c) Except as set forth on Schedule 5.13(c), (i) there has been
no spill, discharge, release, cleanup of or contamination by any Hazardous
Materials used, generated, treated, stored, disposed of or handled by Xxxxxxxx;
and (ii) Xxxxxxxx holds all necessary permits, licenses, approvals and consents
to conduct its business as currently being conducted and is not in violation of
any condition of any such permit, license or consent.
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5.14 Violations; Condemnation. Except as set forth on Schedule 5.14,
Xxxxxxxx has not received, with respect to any Xxxxxxxx Facility, any written or
oral notice of default or any written or oral notice of noncompliance with
respect to applicable state, federal or local laws or regulations relating to
zoning, building, fire, use restriction or safety or health codes which have not
been remedied in all respects, and noncompliance with which could have a
Material Adverse Effect. Xxxxxxxx has received no written or oral notice of any
pending or threatened condemnation or other governmental taking of any of the
Xxxxxxxx Facilities.
5.15 Taxes.
(a) Except as set forth on Schedule 5.15(a), (i) all Returns
(defined in Subsection 5.15(b) below) in respect of Taxes (defined in Subsection
5.15(b) below) required to be filed with respect to Xxxxxxxx (including any
consolidated federal income tax return and any state Tax return that includes
Xxxxxxxx or any of its related companies on a consolidated, combined or unitary
basis) have been timely filed, none of such Returns contains, or is required to
contain, a disclosure statement under section 6661 or 6662 of the Code or any
similar provision of state, local or foreign law, and no extension of time
within which to file any such Return has been requested, which Return has not
since been timely filed; (ii) all Taxes whether or not shown on such Returns
have been timely paid and all payments of estimated Taxes required to be made
with respect to Xxxxxxxx under section 6655 of the Code or any comparable
provision of state, local or foreign law have been made; (iii) all such Returns
are true, correct and complete in all material respects; (iv) no adjustment
relating to any of such Returns has been proposed formally or informally by any
Tax authority; (v) there are no outstanding subpoenas or requests for
information with respect to any Returns of Xxxxxxxx or the Taxes reflected on
such Returns; (vi) there are no pending or to Lawrence's Knowledge threatened
actions or proceedings for the assessment or collection of Taxes against
Xxxxxxxx or any corporation that was included in the filing of a Return with
Xxxxxxxx on a consolidated, combined or unitary basis; (vii) no consent under
section 341(f) of the Code has been filed with respect to Xxxxxxxx; (viii) there
are no Tax liens on any assets of Xxxxxxxx except liens for Taxes not yet due
and payable or being contested in good faith by appropriate proceedings for
which adequate reserves have been established; (ix) no acceleration of the
vesting schedule for any property that is nonvested within the meaning of the
regulations under section 83 of the Code will occur in connection with the
transactions contemplated by this Agreement; (x) Xxxxxxxx is not now nor has it
at any time been subject to any accumulated earnings tax or personal holding
company tax; (xi) Xxxxxxxx owes no amounts pursuant to any written or unwritten
Tax sharing agreement or arrangement and will not have any liability after the
date hereof in respect of any written or unwritten Tax sharing agreement or
arrangement executed or agreed to prior to the date hereof; (xii) all Taxes
required to be withheld, collected or deposited by Xxxxxxxx have been timely
withheld, collected or deposited and, to the extent required, have been paid to
the relevant Tax authority; (xiii) any adjustment of Taxes of Xxxxxxxx made by
the IRS that is required to be reported to any state, local or foreign Tax
authority has been so reported and any additional Tax due as a result thereof
has been paid in full; (xiv) there are no outstanding waivers or agreements
extending the statute of limitations for any period with respect to any Tax to
which Xxxxxxxx may be subject; (xv) to Lawrence's Knowledge there are no
requests for rulings or information currently outstanding that could affect the
Taxes of Xxxxxxxx, or any similar matters pending with respect to any Tax
authority; (xvi) no Tax authority has proposed reassessments of any property
owned or leased by Xxxxxxxx that could increase the amount of any Tax to which
Xxxxxxxx would be subject; (xvii) no power of attorney that is currently in
force has been granted with respect to any matter relating to Taxes that could
affect Xxxxxxxx and (xviii) with respect to each Return that has been examined
by the relevant Tax authority, such examination is closed and final without any
adjustment having been made to such Return (including adjustments not affecting
the amount of Tax due with respect to such Return).
(b) For purposes of this Agreement, "Tax" or "Taxes" shall mean
any and all taxes, charges, fees, levies, and other governmental assessments and
impositions of any kind, payable to any federal, state, local or foreign
governmental entity or taxing authority or agency, including, without
limitation, (i) income, franchise, profits, gross receipts, minimum, alternative
minimum, estimated, ad valorem, value added, sales, use, service, real or
personal property, capital stock, license, payroll, withholding, disability,
employment, social security, workers compensation, unemployment compensation,
utility, severance, production, excise, stamp, occupation, premiums, windfall
profits, transfer and gains
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taxes, (ii) customs duties, imposts, charges, levies or other similar
assessments of any kind, and (iii) interest, penalties and additions to tax
imposed with respect thereto; and "Returns" shall mean any and all returns,
reports, and information statements with respect to Taxes required to be filed
with the Internal Revenue Service or any other governmental entity or Tax
authority or agency, whether domestic or foreign including, without limitation,
consolidated, combined and unitary tax returns. For the purposes of this Section
5.15, references to Xxxxxxxx shall include former subsidiaries of Xxxxxxxx
identified on Schedule 5.15(b), if any, for the periods during which any such
corporations were owned, directly or indirectly, by Xxxxxxxx.
5.16 Product Liability Matters. Except as set forth on Schedule 5.16, as
of the date of this Agreement, Xxxxxxxx has not submitted to its product
liability insurance carriers any claims with respect to potential product
liability of Xxxxxxxx which claims could have a Material Adverse Effect on
Xxxxxxxx, nor does it know of any such claims which should have been submitted
to its product liability insurance carriers. Buyer has previously been afforded
access to all files containing, or been furnished with copies of, all pleadings,
claims, complaints and relevant documents in connection with the foregoing.
Neither Xxxxxxxx nor, to Lawrence's Knowledge, any employee or agent of
Xxxxxxxx, has made any untrue statement of a material fact or omitted to state a
material fact in connection with obtaining or renewing any insurance policy
providing product liability coverage in respect of the products of Xxxxxxxx
which could reasonably result in the loss of any material portion of such
coverage, and Xxxxxxxx has not received any written or oral notice from any
insurance company stating that any insurance policy of Xxxxxxxx may not provide
coverage up to the limits of such policy for any liability, loss or damage which
may be incurred or suffered by Xxxxxxxx in connection with product liability
claims other than the possible lack of coverage for punitive damages and claims
for deductible amounts.
5.17 No Undisclosed Liabilities. Except as set forth on Schedule 5.17 and
except to the extent specifically reflected or reserved against in the
Consolidated Balance Sheet of Xxxxxxxx as of December 31, 1996, Xxxxxxxx does
not have any material liabilities or obligations of any nature, whether
absolute, accrued, contingent or otherwise.
5.18 Construction of Certain Provisions. It is understood and agreed that
any dollar amount specified in the foregoing representations and warranties or
the inclusion of any specific items on the Schedules hereto is not intended to
imply that higher or lower amounts, or that the items that have been so
included, are or are not material, and neither party shall use the fact of the
setting of such amounts or the fact of the inclusion of any such items on the
Schedules hereto in any dispute or controversy between the parties on whether
any obligation, item or matter not described herein or included on a Schedule
hereto is or is not material for purposes of this Agreement.
5.19 Condition of the Assets. The assets of Xxxxxxxx, including real,
personal and mixed, tangible and intangible, necessary or useful to the
operation of its business (the "Assets") are in good condition and repair,
ordinary wear and tear excepted, and suitable for the uses intended. The Assets
comply with and are operated in conformity with all applicable laws, ordinances,
regulations, orders, permits and other requirements relating thereto adopted or
currently in effect. The leases and other agreements or instruments under which
Xxxxxxxx holds, leases, subleases or is entitled to the use of any of the Assets
are in full force and effect, and all rentals, royalties or other payments
payable thereunder have been duly paid or provided for by adequate reserves. No
default or event of default by Xxxxxxxx exists, and no event which, with notice
or lapse of time or both, would constitute a default by Xxxxxxxx, has occurred
and is continuing, under the terms or provisions of any such lease, agreement or
other instrument or under the terms or provisions of any agreement to which any
of such Assets is subject, nor has Xxxxxxxx received notice of any claim of such
default.
5.20 Title; Absence of Liens and Encumbrances, Etc. Except as set forth
on Schedule 5.20 and except for the restrictions imposed under the terms of its
capital and operating leases, Xxxxxxxx has good, valid, and marketable title to
the Assets, free and clear of all mortgages, security interests, claims, liens
(except inchoate construction liens), charges, title defects, encumbrances,
restrictions on use or transfer or other defects.
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5.21 Indebtedness. Except as set forth on Schedule 5.21, Xxxxxxxx does
not have any obligation for money borrowed or under any guarantee nor any
agreement or arrangement to borrow money or to enter into any such guarantee,
and as of the Closing Date, except as set forth on Schedule 5.21, Xxxxxxxx will
not have any obligation for money borrowed nor any agreement or arrangement to
borrow money, and Xxxxxxxx will not have any guarantee outstanding nor any
agreement or commitment to enter into any such guarantee.
5.22 Accounts Receivable. No amount included in the accounts receivable
of Xxxxxxxx in the Xxxxxxxx Financial Statements has been released for an amount
less than the value at which it was included or is or will be regarded as
unrecoverable in whole or in part except to the extent there shall have been an
appropriate bad debt reserve therefor. Such receivables are not, to Lawrence's
Knowledge, subject to any counterclaim, refusal to pay or setoff not reflected
in the reserves set forth on the Xxxxxxxx Financial Statements. Schedule 5.22
hereto sets forth a list of all accounts receivable of Xxxxxxxx as of the close
of business on December 31, 1996, none of which are owing from a debtor that, to
Lawrence's Knowledge, has become bankrupt or insolvent or have been pledged to
any third party.
5.23 No Sales or Conveyance Tax Due. No sales, use or other transfer or
conveyance taxes are or will become payable by any of the parties to this
Agreement as a consequence of the execution, delivery or performance of this
Agreement or any of the ancillary agreements, other than taxes based upon the
net income of the parties.
5.24 Books and Records. Xxxxxxxx has maintained its books of account in
accordance with applicable laws, rules and regulations and with generally
accepted accounting principles consistently applied, and such books of account
are and, during the period covered by the Xxxxxxxx Financial Statements, were
correct and complete in all material respects, fairly and accurately reflect or
reflected the income, expenses, assets and liabilities of Xxxxxxxx, including
the nature thereof and the transactions giving rise thereto, and provide or
provided a fair and accurate basis for the preparation of the Xxxxxxxx Financial
Statements. The minute books of Xxxxxxxx, as previously made available to Buyer
and its counsel, contain accurate records of all meetings and accurately reflect
all other corporate action of the Shareholder and directors (and committees
thereof) of Xxxxxxxx.
5.25 Employees. Schedule 5.25 sets forth a list of the names, employment
status, location of employment, and rates of compensation (including salaries,
wages, commissions and bonuses) of all employees of Xxxxxxxx. Except as
described on Schedule 5.25, Xxxxxxxx has no written or oral contract of
employment with any employee of Xxxxxxxx, and Xxxxxxxx is not a party to or
subject to any collective bargaining agreement nor has been a party to or
subject to any collective bargaining agreement or collective bargaining plan
during the last five (5) years. Except as described on Schedule 5.25, Xxxxxxxx
is not a party to any pending nor, to Lawrence's Knowledge, threatened labor
dispute affecting the business of Xxxxxxxx. Xxxxxxxx has complied in all
material respects with all applicable foreign, federal, state and local laws,
ordinances, rules and regulations and requirements relating to the employment of
labor, including, but not limited to, the provisions thereof relative to wages,
hours, collective bargaining, drug testing, personnel policies and practices,
payment of Social Security, unemployment and withholding taxes, and ensuring
equality of opportunity for employment and advancement of minorities and women.
To Lawrence's Knowledge, Xxxxxxxx is not liable for any arrears of wages or any
taxes or penalties for failure to comply with any of the foregoing. At the
Closing Date, all employees will be terminable at will by Xxxxxxxx and will be
free to become the employees of Buyer, the Surviving Corporation or an affiliate
or subsidiary of Buyer. Xxxxxxxx has not received notice from any employee
listed on Schedule 5.25 as earning an annual base salary in excess of $40,000
that such employee is terminating his or her employment with Xxxxxxxx, nor to
Lawrence's Knowledge, does any such employee intend to terminate his or her
employment with Xxxxxxxx.
5.26 Related Party Transactions. Schedule 5.26 sets forth the amounts and
other essential terms of indebtedness or other obligations, liabilities or
commitments (contingent or otherwise) of Xxxxxxxx to or from any Shareholder or
any other present officer, or director, or any person related to, controlling,
controlled by or under common control with any of the foregoing (other than for
employment services performed within the past month the payment for which is not
yet due), and all other transactions
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between such persons and Xxxxxxxx. Without limiting the generality of the
foregoing, as of the date hereof, none of the Shareholders or any other present
officer, or director, or any person related to, controlling, controlled by or
under common control with any of the foregoing (i) has any material direct or
indirect interest in any entity which does business with Xxxxxxxx, (ii) has any
direct or indirect interest in any property, asset or right which is used by
Xxxxxxxx in the conduct of its business, or (iii) has any contractual
relationship with Xxxxxxxx other than such relationships which occur from being
an employee, officer, director, etc.
5.27 Xxxx-Xxxxx-Xxxxxx. The "total assets" and the "annual net sales" of
the "ultimate parent entity" of Xxxxxxxx (as such terms are used within the
meaning of Section 7A.(a)(2)(A) of the Xxxx-Xxxxx-Xxxxxx Antitrust Improvements
Act of 1976) are shown on Schedule 5.27.
5.28 Customers and Suppliers. Except as set forth in Schedule 5.28,
Xxxxxxxx has not received any notice or has any Knowledge that any customer from
whom Xxxxxxxx received more than $50,000 in gross receipts during the 1995 or
1996 fiscal years (i) has ceased, or will cease, to use the products, goods or
services of its business, (ii) has substantially reduced, or will substantially
reduce, the use of products, goods or services of its business or (iii) has
sought, or is seeking, to reduce the price it will pay for products, goods or
services of its business. Xxxxxxxx has not received any notice or has any
Knowledge that any supplier from whom Xxxxxxxx purchased more than $50,000 in
goods during the 1995 or 1996 fiscal years will not sell raw materials,
supplies, merchandise and other goods to Xxxxxxxx at any time after the Closing
Date on terms and conditions similar to those used in the current sales to
Xxxxxxxx, subject to general and customary price increases and unforeseeable
supply or demand changes.
5.29 Stock Ownership. Other than through mutual funds or other similar
investment vehicles over which no investment discretion is retained, none of
Xxxxxxxx or any Shareholder owns any securities issued by Buyer and has no
warrants, options or other rights to purchase or otherwise acquire or convert
any obligations into securities issued by Buyer.
5.30 Insurance. All of the Assets are covered by such fire, casualty,
product liability, environmental liability and other insurance policies issued
by reputable companies as are customarily obtained to cover comparable
properties and assets by businesses in the region in which such Assets are
located, in amounts, scope and coverage which are reasonable in light of
existing conditions. Schedule 5.30 sets forth a list of the policies of
insurance and fidelity or surety bonds carried by Xxxxxxxx, including, but not
limited to, fire, flood, liability, workers' compensation, officers' life, and
directors' and officers' liability insurance policies. Xxxxxxxx has not failed
to give any notice or present any material claim under any insurance policy in
due and timely fashion, and all insurance premiums due and payable by Xxxxxxxx
in connection with the policies set forth on Schedule 5.30 prior to the Closing
Date have been or will be paid. There are no outstanding written requirements or
written recommendations by any insurance company that issued a policy with
respect to any of the properties and assets of Xxxxxxxx by any Board of Fire
Underwriters or other body exercising similar functions or by any governmental
authority requiring or recommending any repairs or other work to be done on or
with respect to any of the properties or Assets of Xxxxxxxx or requiring or
recommending any equipment or facilities to be installed on or in connection
with any of the properties or Assets. The unemployment insurance ratings and
contributions of Xxxxxxxx are also set forth on Schedule 5.30.
5.31 Information in Disclosure Documents and Registration Statement. None
of the information supplied or to be supplied by Xxxxxxxx for inclusion or
incorporation by reference in (i) any registration statement filed in connection
with this Agreement will, at the time such registration statement is filed with
the SEC and at the time it becomes effective under the Securities Act, contain
any untrue statement of a material fact or omit to state any material fact
required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they are made, not misleading, and (ii)
any proxy statement relating to the meeting of Buyer's stockholders to be held
in connection with the Merger will, at the date mailed to stockholders and at
the time of the meeting of stockholders to be held in connection with the
Merger, 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 are made, not
misleading.
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5.32 No Misrepresentation. Neither this Agreement nor any certificate or
Schedule or other information furnished by or on behalf of Xxxxxxxx or any
Shareholder pursuant to this Agreement contains any untrue statement of a
material fact or, when this Agreement and such certificates, Schedules and other
information are taken in their entirety, omits to state a material fact
necessary to make the statements contained herein or therein not misleading.
ARTICLE VI
CONDUCT OF BUSINESS PENDING THE MERGER
6.1 Conduct of Business Pending the Merger. Xxxxxxxx agrees that, except
as expressly contemplated by this Agreement, during the period from the date of
this Agreement and continuing until the Effective Time:
(a) The business of Xxxxxxxx shall be conducted only in the
ordinary and usual course of business and consistent with past practices;
(b) Xxxxxxxx shall not (i) amend its Articles of Incorporation
or Bylaws; or (ii) split, combine or reclassify any shares of its outstanding
capital stock, declare, set aside or pay any dividend or other distribution
payable in cash, stock or property in respect of its capital stock, or directly
or indirectly redeem, purchase or otherwise acquire any shares of its capital
stock or other securities;
(c) Xxxxxxxx shall not (i) authorize for issuance, issue, sell,
pledge, dispose of, encumber, deliver or agree or commit to issue, sell, pledge,
or deliver any additional shares of, or rights of any kind to acquire any shares
of, its capital stock of any class (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or otherwise),
(ii) acquire, dispose of, transfer, lease, or license, any fixed or other
substantial assets other than in the ordinary course of business and consistent
with past practices; (iii) incur, assume or prepay any material indebtedness,
liability or obligation or any other material liabilities or issue any debt
securities; (iv) assume, guarantee, endorse or otherwise become liable or
responsible (whether directly, contingently or otherwise) for the obligations of
any other person; (v) make any material loans, advances or capital contributions
to, or investments in, any other person; (vi) fail to maintain adequate
insurance consistent with past practices for its business; (vii) take any action
described in items (i) through (x) of Section 5.6 without the consent of the
Buyer; or (viii) enter into any contract, agreement, commitment or arrangement
with respect to any of the foregoing;
(d) Xxxxxxxx shall use reasonable efforts to maintain the
Assets, to preserve intact its business organization, to keep available the
services of its present officers and key employees, and to preserve the goodwill
of those having business relationships with it; provided, however, that no
breach of this covenant shall be deemed to have occurred as a result of any
matter arising out of the transactions contemplated by this Agreement or the
public announcement thereof;
(e) Xxxxxxxx shall use all reasonable efforts to prevent any
representation or warranty of Xxxxxxxx herein from becoming materially untrue or
incorrect in any material respect; and
(f) Notwithstanding anything to the contrary in subsections (a)
through (e) above, Xxxxxxxx shall be permitted to take the following actions:
(i) pay any judgment or settlement of pending legal claims (including penalties,
fees, or taxes related thereto) provided that Xxxxxxxx will not without Buyer's
written consent enter into any settlement which imposes upon Xxxxxxxx any
restrictions or limitations on its ability to operate its business consistent
with past practice; (ii) repay any guarantors of Lawrence's obligations or
pledgors of collateral to secure Lawrence's obligations (including collateral
pledged to secure letters of credit relating to such obligations) if and to the
extent such guarantors pay any amount under the guaranty, or such pledgors have
such collateral foreclosed upon, in connection with any of Lawrence's
obligations, on behalf of Xxxxxxxx, and (iii) pay compensation as permitted
under Section 6.2 below.
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6.2 Compensation Plans. During the period from the date of this
Agreement and continuing until the Effective Time, Xxxxxxxx agrees that it will
not, without the prior written consent of Buyer (except as required by
applicable law or pursuant to existing contractual arrangements or other plans
or commitments as otherwise disclosed in writing pursuant hereto) (a) enter
into, adopt or amend any Employee Benefit Programs as to increase the benefits
thereunder, (b) grant or become obligated to grant any increase in the
compensation or fringe benefits of directors, officers or employees (including
any such increase pursuant to any Employee Benefit Program) or any increase in
the compensation payable or to become payable to any officer, except for
increases in compensation in the ordinary course of business consistent with
past practice, or enter into any contract, commitment or arrangement to do any
of the foregoing, except for normal increases and non-stock benefit changes in
the ordinary course of business consistent with past practice, (c) institute any
new Employee Benefit Program, (d) make any material change in any Employee
Benefit Program arrangement or enter into any employment or similar agreement or
arrangement with any employee, or (e) enter into or renew any contract,
agreement, commitment or arrangement providing for the payment to any director,
officer or employee of compensation or benefits contingent, or the terms of
which are altered in favor of such individual, upon the occurrence of any of the
transactions contemplated by this Agreement. Notwithstanding anything to the
contrary in this Section 6.2, Xxxxxxxx shall be permitted to (i) pay fiscal
year-end cash bonuses to its employees in amounts consistent with past practice
and (ii) enter into staying bonus/severance agreements with the employees (the
"Designated Employees") listed on Exhibit "A-1" in the form attached as Exhibit
"A-2."
6.3 Legal Conditions to Merger. Each of Xxxxxxxx and Buyer shall use all
reasonable efforts (a) to take, or cause to be taken, all actions reasonably
necessary to comply promptly with all legal requirements which may be imposed on
such party or its subsidiaries with respect to the Merger and to consummate the
transactions contemplated by this Agreement, and (b) to obtain (and to cooperate
with the other party to obtain) any consent, authorization, order or approval
of, or any exemption by, any governmental entity and or any other public or
private third party which is required to be obtained or made by such party or
any of its subsidiaries in connection with the Merger and the transactions
contemplated by this Agreement; provided, however, that a party shall not be
obligated to take any action pursuant to the foregoing if the taking of such
action or such compliance or the obtaining of such consent, authorization,
order, approval or exemption would, in Buyer's reasonable opinion, result in the
imposition of a condition or restriction on such party or on the Surviving
Corporation of the type referred to in Section 8.1; and provided further that
neither party shall be obligated to take any action to obtain any third party
consent where a failure to obtain such consent would not in Buyer's reasonable
opinion have a Material Adverse Effect. Each party will cooperate with and
promptly furnish information to the other in connection with any such burden
suffered by, or requirement imposed upon, either of them in connection with the
foregoing.
ARTICLE VII
ADDITIONAL AGREEMENTS
7.1 Access and Information. Xxxxxxxx shall afford to Buyer and to
Buyer's financial advisors, legal counsel, accountants, consultants and other
representatives reasonable access during normal business hours throughout the
period from the date hereof to the Effective Time to all of its books, records,
properties, facilities, personnel, commitments and records (including but not
limited to tax returns) and, during such period, shall furnish promptly to Buyer
all information concerning its business, properties and personnel as Buyer may
reasonably request.
7.2 Pooling. None of Xxxxxxxx, Buyer and Buyer Sub shall take any action
which would jeopardize the treatment of the Merger as a tax-free reorganization
or which would prevent the Merger from being accounted for as a pooling of
interests.
7.3 Public Announcements. Xxxxxxxx understands that Buyer is a public
company, and that until the transactions contemplated by this Agreement are made
public, Xxxxxxxx and the Shareholders and those whom they advise of this
transaction (which shall only be on a "need to know basis") may be privy to
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material inside information; accordingly, Xxxxxxxx understands, and Xxxxxxxx has
apprized those of its officers, directors and employees who know of the
potential transaction, of the need for confidentiality and the potential
consequences of any trading in Buyer Common Stock. No public announcements shall
be made concerning the negotiations between the parties, this Agreement or the
transactions contemplated herein, without the prior mutual consent of Xxxxxxxx
and Buyer, except as may be required by law or the rules or regulations of The
Nasdaq Stock Market. The parties agree that, to the maximum extent feasible,
they will advise and confer with each other prior to the issuance of any
reports, statements or releases pertaining to this Agreement or the transactions
contemplated herein. In addition, the parties agree to respond to all inquiries
with respect to the Merger by stating that it is their policy not to comment on
such matters.
7.4 Additional Agreements.
(a) Subject to the terms and conditions hereof, each of the
parties hereto agrees to use all reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things necessary, proper
or advisable under applicable laws and regulations to consummate and make
effective the transactions contemplated by this Agreement, including using all
reasonable efforts to obtain all necessary waivers, consents and approvals, and
to effect all necessary registrations and filings. In case at any time after the
Effective Time any further action is necessary or desirable to carry out the
purposes of this Agreement, the proper officers and/or directors of the
Companies shall take all such necessary action.
(b) Subject to the terms and conditions hereof, Buyer and
Xxxxxxxx will cooperate with each other and use all reasonable efforts to
prepare all necessary documentation to effect promptly all necessary filings and
to obtain all necessary permits, consents, approvals, orders and authorizations
of or any exemptions by, all third parties and governmental bodies necessary to
consummate the transactions contemplated by this Agreement.
(c) Each party will keep the other party apprized of the status
of any inquiries made of such party by any governmental agency or authority or
members of their respective staffs with respect to this Agreement or the
transactions contemplated herein.
7.5 Confidentiality. All confidential information disclosed by any party
to this Agreement to any other party to this Agreement in connection with the
transactions contemplated hereby shall be kept confidential by such other party
and shall not be used by such other party otherwise than as herein contemplated,
except to the extent that (a) it is or becomes generally available to the public
other than as a result of a wrongful disclosure by a party receiving such
confidential information hereunder, (b) it was readily available to the party
receiving such information on a non-confidential basis prior to its disclosure
hereunder, (c) it was already lawfully in the receiving party's possession prior
to its disclosure hereunder, (d) it becomes available to the receiving party on
a non-confidential basis from a source other than the disclosing party hereunder
without violation of such source's confidentiality agreement with the disclosing
party or its representatives or of legal, fiduciary or ethical constraints on
disclosure of such information, (e) it may be required by law, or (f) such duty
as to confidentiality is waived by the other party. Such obligation as to
confidentiality and non-use shall survive the termination of this Agreement for
any reason. This Section 7.5 shall survive termination hereof or consummation of
the transactions hereunder, and shall replace any prior confidentiality
agreements, including the Confidentiality Agreement dated October 23, 1996,
entered into by Xxxxxxxx and Buyer.
7.6 Guarantees. Buyer shall cooperate with Xxxxxxxx and use Buyer's
reasonable efforts to obtain, prior to the Effective Time, the release of all
guarantees listed on Schedule 7.6 ("Guarantees") provided by individuals, LSI or
LSRL on behalf of Xxxxxxxx relating to Lawrence's bank financings or other
indebtedness (the "Releases"), provided that no modification to, or amendment
of, the terms of any such bank financing or other indebtedness shall be made in
connection with obtaining a Release without Buyer's prior written consent. In
the event that the parties are unable to obtain the release of any of the
Guarantees, the Buyer shall indemnify the guarantors against any losses incurred
by them under such Guarantees as a result of a default by Xxxxxxxx of its
obligations as provided in Section 10.3.
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7.7 Noncompete Agreement. At the Effective Time, Xxxxxxx X. Xxxxxxxx
shall enter into a Noncompete Agreement in the form attached hereto as Exhibit
"B."
7.8 Consulting Agreement. At the Effective Time, the Surviving
Corporation shall enter into Consulting Agreement with LSI in the form attached
hereto as Exhibit "C."
7.9 Notices of Certain Events. From the date hereof to and including the
Closing Date, Xxxxxxxx and Buyer covenant and agree to notify the other of (i)
any notice or other communication from any person alleging that the consent of
such person is or may be required in connection with the transactions
contemplated by this Agreement; (ii) any notice or other communication from any
foreign or domestic governmental authority in connection with the transactions
contemplated by this Agreement; and (iii) any matter arising and discovered
after the date of this Agreement that, if existing or known on the date of this
Agreement, would have been required to be disclosed pursuant to this Agreement,
or that constitutes a breach or prospective breach of this Agreement by the
notifying party or its affiliates.
7.10 No Solicitation. Xxxxxxxx will not, and Xxxxxxxx will use best
efforts to cause each Shareholder not to, directly or indirectly, solicit any
active discussions or negotiations with, or provide information to, any person,
other than Buyer, concerning any possible proposal regarding the acquisition of
Xxxxxxxx or any part thereof, or any merger or consolidation thereof or accept
any such proposal.
7.11 Preparation of S-4 and the Proxy Statement. Buyer shall prepare and
file as promptly as practicable after the execution of this Agreement with the
SEC a proxy statement and a registration statement on Form S-4 (in which the
proxy statement will be included as a prospectus) (the "S-4"). Buyer shall use
its best efforts to have the S-4 declared effective under the Securities Act as
promptly as practicable after such filing. Buyer shall also take any action
(other than qualifying to do business in any jurisdiction in which it is not now
so qualified) required to be taken under any applicable state securities laws in
connection with the issuance of Buyer Common Stock in the Merger, and Xxxxxxxx
shall furnish all information concerning Xxxxxxxx and the Shareholders as may be
reasonably requested in connection with any such action.
7.12 Nasdaq Listing. Buyer will make such filings as are necessary with
The Nasdaq Stock Market regarding the transactions contemplated hereby,
including filing a Notification Form for Listing of Additional Shares with
respect to the shares of Buyer Common Stock to be issued in the Merger.
7.13 Qualified Retirement Plan. The Xxxxxxxx Profit Sharing Plan and
Trust (the "Plan and Trust") shall be continued by Xxxxxxxx for at least twelve
months from the Effective Time (the "Continuation Period") with respect to the
Xxxxxxxx employees at the Effective Time (except for LSRL employees), and the
Xxxxxxxx employees shall continue to participate in the Plan and Trust during
such time. After the Continuation Period, neither Xxxxxxxx nor Buyer will have
any obligation to continue the Plan and Trust. At Buyer's discretion, after the
Continuation Period Xxxxxxxx may continue the Plan and Trust, freeze it,
terminate it, or merge it into any other qualified plan in which Buyer's
employees are eligible to participate. At the Effective Time, LSRL employees
shall cease to participate in the Plan and Trust. After the Continuation Period,
Xxxxxxxx employees shall be eligible to participate in Buyer's 401(k) plan,
except to the extent Buyer has elected to continue the Plan and Trust beyond the
Continuation Period in which case the Xxxxxxxx employees will remain eligible
under the Plan and Trust. When Xxxxxxxx employees do become eligible to
participate in Buyer's 401(k) plan, they shall be given credit for their service
with Xxxxxxxx toward eligibility requirements and vesting in Buyer's 401(k)
plan.
7.14 Name. It is Buyer's current intention that the Surviving Corporation
will continue to do business under the name "Xxxxxxxx Semiconductor
Laboratories, Inc." following the Closing.
7.15 Conduct of Buyer's Business Pending the Merger. Buyer agrees that,
except as expressly contemplated by this Agreement, and except as may be
necessary or required in connection with the consummation of the transaction
contemplated by the ADCS Merger Agreement, during the period from the date of
this Agreement and continuing until the Effective Time:
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(a) The business of Buyer shall be conducted only in the
ordinary and usual course of business and consistent with past practices;
(b) Buyer shall not (i) amend its Articles of Incorporation or
Bylaws; or (ii) split, combine or reclassify any shares of its outstanding
capital stock, declare, set aside or pay any dividend or other distribution
payable in cash, stock or property in respect of its capital stock, or directly
or indirectly redeem, purchase or otherwise acquire any shares of its capital
stock or other securities;
(c) Buyer shall not authorize for issuance, issue, sell, pledge,
dispose of, encumber, deliver or agree or commit to issue, sell, pledge, or
deliver any additional shares of, or rights of any kind to acquire any shares
of, its capital stock of any class (whether through the issuance or granting of
options, warrants, commitments, subscriptions, rights to purchase or otherwise),
provided, however, that Buyer may do any of the foregoing if the value of the
consideration per Share received by Buyer in such transaction is greater than
the greater of (i) $17 and (ii) the closing price of Buyer Common Stock on the
Nasdaq National Market on the trading day immediately preceding the date of the
consummation of such transaction. Notwithstanding the foregoing, Buyer may grant
additional options under its existing option plans consistent with past
practice, and may also issue additional shares upon the exercise of outstanding
options and warrants.
(d) Buyer shall use reasonable efforts to maintain its assets,
to preserve intact its business organization, to keep available the services of
its present officers and key employees, and to preserve the goodwill of those
having business relationships with it; provided, however, that no breach of this
covenant shall be deemed to have occurred as a result of any matter arising out
of the transactions contemplated by this Agreement or the public announcement
thereof;
(e) Buyer shall use all reasonable efforts to prevent any
representation or warranty of Buyer herein from becoming materially untrue or
incorrect in any material respect; and
(f) Notwithstanding anything to the contrary in subsections (a)
through (e) above, Buyer shall be permitted to take the following actions: (i)
pay any judgment or settlement of pending legal claims (including penalties,
fees, or taxes related thereto) provided that Buyer will not without Lawrence's
written consent enter into any settlement which imposes upon Buyer any
restrictions or limitations on its ability to operate its business consistent
with past practice; and (ii) repay any guarantors of Buyer's obligations or
pledgors of collateral to secure Buyer's obligations (including collateral
pledged to secure letters of credit relating to such obligations) if and to the
extent such guarantors pay any amount under the guaranty, or such pledgors have
such collateral foreclosed upon, in connection with any of Buyer's obligations,
on behalf of Buyer.
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ARTICLE VIII
CONDITIONS TO CONSUMMATION OF THE MERGER
8.1 Conditions to Both Lawrence's and Buyer's Obligation to Effect the
Merger. The respective obligations of Xxxxxxxx and Buyer to effect the
transactions contemplated in this Agreement shall be subject to the satisfaction
at or prior to the Effective Time of the following conditions, which may be
waived by mutual agreement: (a) no preliminary or permanent injunction or other
order by or before any federal, state or foreign court of competent jurisdiction
which prohibits the consummation of the Merger shall have been issued and remain
in effect; and (b) no statute, rule, regulation, executive order, stay, decree,
or judgment shall have been enacted, entered, issued, promulgated or enforced by
or before any court or governmental authority which prohibits or restricts the
consummation of the Merger. Other than the filing of Articles of Merger and Plan
of Merger with the Arizona Corporation Commission and the Secretary of State of
the State of Delaware, all authorizations, consents, orders or approvals of, or
declarations or filings with, and all expirations of waiting periods imposed by,
any governmental entity (all of the foregoing, "Consents") which are necessary
for the consummation of the Merger, other than Consents the failure to obtain
which would have no Material Adverse Effect on the consummation of the Merger or
on the Surviving Corporation, Buyer and their subsidiaries shall have been
filed, occurred or been obtained (all such permits, approvals, filings and
consents and the lapse of all such waiting periods being referred to as the
"Requisite Regulatory Approvals"), and all such Requisite Regulatory Approvals
shall be in full force and effect.
8.2 Conditions to Obligation of Each Company to Effect the Merger.
(a) The obligation of Xxxxxxxx to effect the Merger shall be
further subject to the following conditions: (i) Buyer and Buyer Sub shall
satisfy all of the obligations under this Agreement required to be performed by
Buyer and Buyer Sub at or prior to the Effective Time in all material respects,
(ii) the representations and warranties of Buyer and Buyer Sub contained in this
Agreement shall be true and correct in all material respects when made and at
and as of the Effective Time as if made at and as of such time, except as
contemplated by this Agreement, and (iii) Xxxxxxx X. Xxxxxxxx shall have been
elected to serve as a member of Buyer's six (6) person Board of Directors,
effective immediately following the Closing Date, provided that if Section
3.2(f) shall apply, in lieu of the foregoing, Xxxxxxx X. Xxxxxxxx shall have
been elected to serve as a member of the class of directors elected for a term
not to exceed two (2) years on Holdings' seven (7) person Board of Directors.
These conditions may be waived by Xxxxxxxx. Further, if and to the extent
Holdings is formed on or prior to the Effective Time, and Section 3.2(f) is
applicable, then at the Effective Time: (i) Holdings shall own directly all of
the issued and outstanding capital stock of Buyer; (ii) Holdings shall not have
incurred any liabilities of any nature whatsoever, except for the liabilities
described in Section 4.2(k); and (iii) the authorized, issued and outstanding
capital stock of Holdings shall be substantially identical to that of the Buyer
as of the Effective Time, subject only to changes therein necessary to
consummate the transactions contemplated by the ACDS Merger Agreement, and (iv)
evidence reasonably satisfactory to Xxxxxxxx that all conditions to Lawrence's
obligations hereunder have been satisfied in all material respects.
(b) The obligation of Buyer to effect the Merger shall be
further subject to the following conditions: (i) Xxxxxxxx shall satisfy all of
the obligations under this Agreement required to be performed by Xxxxxxxx at or
prior to the Effective Time in all material respects, (ii) the representations
and warranties of Xxxxxxxx contained in this Agreement shall be true and correct
in all material respects when made and at and as of the Effective Time as if
made at and as of such time, except as contemplated by this Agreement, and (iii)
evidence reasonably satisfactory to Buyer that all conditions to Buyer's
obligations hereunder have been satisfied in all material respects. These
conditions may be waived by Buyer.
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8.3 Additional Conditions to Obligations of Buyer. The obligation of
Buyer to effect the Merger shall be further subject to the following conditions:
(a) This Agreement and the consummation of the Merger shall have
been duly approved and adopted by the affirmative vote of the holders of at
least 95% of the voting securities of Xxxxxxxx. This Agreement and the
consummation of the Merger shall have been duly approved and adopted by the
stockholders of Buyer in accordance with the DGCL and its charter.
(b) Ernst & Young LLP, independent accountants to Buyer, shall
have rendered its opinion(s), addressed to Buyer, in form and substance
satisfactory to Buyer as to the appropriateness of pooling of interest
accounting for the Merger under Accounting Principles Board Opinion No. 16 and
Ernst & Young shall have rendered its opinion to Buyer to the effect that the
Merger has been structured in a manner which is tax-free with respect to Buyer
and its stockholders and Xxxxxxxx and the Shareholders.
(c) Xxxxxxxx shall have delivered (or cause to be delivered)
duly executed counterparts of Employee Proprietary Information and Inventions
Agreements with Buyer and the Surviving Corporation substantially in the form of
Exhibit 8.3(d) duly executed by each employee of Xxxxxxxx.
(d) The share certificates representing all of the issued and
outstanding Xxxxxxxx Shares as of the Closing Date (other than Dissenting
Shares), in each case duly endorsed in blank, shall have been surrendered for
cancellation.
(e) The S-4 registering the issuance and delivery of the shares
of Buyer Common Stock shall have been declared effective in accordance with the
provisions of the Securities Act, and no stop order suspending the effectiveness
of the S-4 shall have been issued by the SEC. All other filings necessary under
federal and state securities laws to permit the issuance and delivery of the
shares of Buyer Common Stock in compliance therewith shall have been made, and
any authorizations in connection therewith from all applicable securities
regulatory authorities shall have been obtained.
(f) There shall not have been a material adverse change in the
general affairs, business, business prospects, properties, management, condition
(financial or otherwise) or results of operations of Xxxxxxxx, whether or not
arising from transactions in the ordinary course of business, and Xxxxxxxx shall
not have sustained any material loss or interference with its business or
properties from fire, explosion, flood or other casualty, whether or not covered
by insurance, or from any labor dispute or any court or legislative or other
governmental action, order or decree.
(g) The Mesa real estate (both the developed and undeveloped
parcels) shall have been reconveyed to Xxxxxxxx from LSI, subject to the liens
and encumbrances existing on the date hereof, for an aggregate consideration no
greater than net book value.
(h) Buyer shall have received satisfactory Phase I and, if,
applicable, Phase II environmental site assessments of the Xxxxxxxx Facilities,
and all permits necessary for the operation of those facilities shall have been
appropriately transferred, if required by applicable law.
(i) That certain litigation currently pending in the United
States District Court, Northern District of California, San Xxxx Division,
captioned Applied Materials, Inc. x. Xxxxxxxx Semiconductor, Inc. (C-96 20591
EAI) shall have been dismissed with prejudice.
8.4 Additional Conditions to Obligations of Xxxxxxxx. The obligation of
Xxxxxxxx to effect the Merger shall be further subject to the following
conditions:
(a) There shall not have been a material adverse change in the
general affairs, business, business prospects, properties, management, condition
(financial or otherwise) or results of operations of Buyer, whether or not
arising from transactions in the ordinary course of business, and Buyer shall
not have sustained any material loss or interference with its business or
properties from fire,
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explosion, flood or other casualty, whether or not covered by insurance, or from
any labor dispute or any court or legislative or other governmental action,
order or decree.
(b) Price Waterhouse, LLP, independent accountants to Xxxxxxxx,
shall have rendered its opinion(s) addressed to Xxxxxxxx and Xxxxxxx X.
Xxxxxxxx, and dated the Closing Date, in form and substance satisfactory to
Xxxxxxxx as to the appropriateness of pooling interest accounting for the Merger
under Accounting Principles Board Opinion No. 16.
ARTICLE IX
TERMINATION, AMENDMENT AND WAIVER
9.1 Termination. This Agreement may be terminated and the Merger
contemplated hereby abandoned at any time prior to the Effective Time:
(a) By mutual written consent of Buyer and Xxxxxxxx.
(b) By Buyer or Xxxxxxxx if the Merger shall not have been
consummated within one hundred twenty (120) days of the date hereof, unless the
failure of the Effective Time to occur by such date shall be due to the failure
of the party seeking to terminate this Agreement to perform or observe the
covenants and agreements of such party set forth herein.
(c) By Buyer or Xxxxxxxx if there shall have been any material
misrepresentation or material breach of a material obligation of the other and,
if such breach is curable, such default shall have not been remedied within
thirty (30) days after receipt by the defaulting party of notice in writing from
the other party specifying such breach and requesting that it be remedied;
provided, that such thirty-day period shall be extended for so long as the other
party shall be making diligent attempts to cure such default, but not beyond an
additional thirty (30) days.
(d) By Buyer or Xxxxxxxx, if any court of competent jurisdiction
in the United States or other United States governmental body shall have issued
an order, decree or ruling or taken any other action restraining, enjoining or
otherwise prohibiting any Merger and such order, decree, ruling or any other
action shall have become final and non-appealable.
9.2 Termination; Termination Payment. In the event of termination of
this Agreement, this Agreement shall forthwith become void and there shall be no
liability on the part of any of the parties hereto or their respective
affiliates, directors, officers, or stockholders, except as provided below and
except for those obligations intended to survive termination. In the event that
either the Buyer or Xxxxxxxx shall terminate this Agreement because of a
material misrepresentation or a material breach of a material covenant by the
other party (subject to the 30-day notice and cure period provided in Section
9.1(c)), the breaching party shall be liable to and shall pay to the terminating
party by wire transfer the sum of $5,000,000 in full satisfaction of all claims
within fifteen (15) business days after the breaching party's receipt of written
notice of termination. It is agreed that the payments due hereunder are the
exclusive remedy for termination of this Agreement. Notwithstanding the
foregoing, in the event of a breach by Xxxxxxxx of Section 7.10, the Buyer may
pursue any and all remedies available to it at law or in equity. Recovery by the
Buyer of a termination payment under this Section 9.2 shall not bar any such
action for breach of Section 7.10, but the amount of any monetary damages
awarded to the Buyer in such action shall be reduced by the termination payment
actually received by the Buyer.
9.3 Amendment. This Agreement may not be amended except by an instrument
in writing signed on behalf of each of the parties hereto.
9.4 Waiver. At any time prior to the Effective Time, the parties hereto
may (a) extend the time for the performance of any of the obligations or other
acts of the other parties hereto, (b) waive any inaccuracies in the
representations and warranties contained herein or in any document delivered
pursuant
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hereto and (c) waive compliance with any of the agreements or conditions
contained herein. Any agreement on the part of a party hereto to any such
extension or waiver shall be valid only if set forth in an instrument in writing
signed on behalf of such party. Such waiver shall not operate as a waiver of, or
estoppel with respect to, any subsequent or other failure.
ARTICLE X
SURVIVAL OF REPRESENTATIONS
AND WARRANTIES: INDEMNIFICATION
10.1 Survival: Indemnification.
(a) No representations, warranties or agreements contained
herein shall survive beyond the Effective Time except that (i) the
representations, warranties and agreements contained in Sections 3.1, 3.2, 3.3,
3.4, 3.5, 3.7, 5.13, 5.15, 7.3, 7.4, 7.5, 7.6, 9.2, 9.3, 9.4, 11.1, 11.2, 11.5,
11.6, 11.7, 11.8, 11.9 and 11.10 and Article X hereof shall survive beyond the
Effective Time for the period of the applicable statute of limitations and (ii)
the other representations and warranties of Buyer and Xxxxxxxx in this Agreement
shall survive beyond the Effective Time for one (1) year (the end of such
one-year period, the "Termination Date") solely for the purpose of the
Indemnification Escrow as described below.
(b) Through the Indemnification Escrow described below, the
Surviving Corporation, Buyer, Buyer Sub, Holdings and each of their officers,
directors, employees, agents, representatives and affiliates (collectively, the
"Indemnitees" and, individually, each an "Indemnitee") (subject to the terms and
conditions below) will be entitled to be indemnified and held harmless by the
Shareholders against and in respect of any claims, damages, losses, costs,
expenses, liabilities (absolute, accrued, contingent or otherwise), and
reasonable legal fees and expenses (collectively, "Losses") incurred or suffered
by any Indemnitee, directly or indirectly, caused by or arising out of or
related to any untruth, inaccuracy, error in, or breach of, any representation
or warranty (when made or deemed to be made) or covenant of Xxxxxxxx contained
in this Agreement. The rights of Indemnitees to indemnification under this
Subsection 10.1(b) shall be limited to, and satisfied solely out of and to the
extent of, the Indemnification Escrow as it may be reduced or increased pursuant
to Subsections 3.2(d), 3.4(e), 3.5 this Section 10.1 and the Escrow Agreement,
and any Loss shall be reduced by any amounts actually received by the Indemnitee
under applicable insurance policies, if any. All indemnification requests of
Indemnitees hereunder shall be made by or through Buyer.
(c) By voting to approve this Agreement or by surrendering his
or its Certificate(s) evidencing Xxxxxxxx Shares at Closing, each Shareholder,
other than Shareholders who have perfected dissenter rights under the ABCA,
acknowledges and agrees that (i) the consideration to which such Shareholder is
entitled hereunder is subject to adjustment as contemplated in Articles III and
X, (ii) the Indemnification Escrow Shares and the Escrow Adjustment shall be
placed in the Indemnification Escrow provided for in an Escrow Agreement to be
entered into, as of the Effective Time, in the form of Exhibit "D" attached
hereto and (iii) the Escrow Agent shall be, and is hereby, authorized from time
to time to transfer all or any portion of the amounts so deposited in
satisfaction of the indemnity obligation and as otherwise provided pursuant to
Articles III and X and as contemplated in the Escrow Agreement. Except as
provided in Section 10.5, the Indemnitees agree to look solely to the
Indemnification Escrow for recourse in the event of a breach of any
representation or warranty or covenant of Xxxxxxxx contained in this Agreement
and will not look directly to any Shareholder or Shareholders for any
indemnification hereunder.
(d) If any Indemnitee shall have any liquidated claim of
indemnification pursuant to Subsection 10.1(b), it shall promptly request that
Buyer give written notice thereof to the Representative and the Escrow Agent,
including a brief description of the facts upon which such claim is based and
the amount thereof. Any Indemnitee may also request that Buyer provide written
notice to the Representative and the Escrow Agent of any unliquidated claim of
indemnification pursuant to Subsection 10.1(b), including a brief description of
the facts upon which such claim is based and a demand for a reserve
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amount to be created in respect of such claim. Any claim made by any Indemnitee
for Losses that are unliquidated shall not be paid, but shares of Buyer Common
Stock valued at the Average Closing Price equal to such claim shall be held in
the Indemnification Escrow until such Losses are fully liquidated.
Notwithstanding the foregoing, no amount will be delivered to an Indemnitee
pursuant to a written claim notice (with respect to either a liquidated or
unliquidated claim) pursuant to Subsection 10.1(b) above and Section 10.5 below
unless, and then only to the extent that, the aggregate amount of Losses
sustained by Indemnitees as a group and as to which written claim notices have
been given exceeds Two Hundred Fifty Thousand Dollars ($250,000) (taking into
account any reduction of prior noticed claims resulting from the dispute
resolution procedures of Section 10.2 below).
(e) If the Representative shall notify the Escrow Agent in
writing (within thirty (30) days of delivery to the Escrow Agent by Buyer of a
written notice of claim for indemnification) of his objection to a claim of
indemnification or a demand for the creation of a reserve against the
Indemnification Escrow for any unliquidated claim (or the amount thereof), the
Escrow Agent shall hold the disputed amount of funds in the Indemnification
Escrow until the rights of the Shareholders and the Indemnitees with respect
thereto have been agreed upon between the Representative and the claiming
Indemnitee. In the event such an agreement is reached, the claiming Indemnitee
shall request Buyer to provide to the Escrow Agent a written notice signed by
the Representative in the form specified in the Escrow Agreement. If no such
agreement has been reached, either the Indemnitee or the Representative may, not
earlier than thirty (30) days after the date of the initial claim notice, submit
the dispute to confidential, binding arbitration in New York, New York before a
panel of three arbitrators, one each to be selected by Buyer and the
Representative, and the third to be selected by the other two arbitrators,
pursuant to the procedures and rules for commercial arbitration of the American
Arbitration Association. The Escrow Agent may rely on the order or other
determination of such arbitrators. If such arbitrators shall determine that any
part of the Indemnification Escrow is to be delivered to an Indemnitee or is to
be set aside in a reserve for any unliquidated claim, the Escrow Agent shall
promptly following receipt of a copy of such determination establish such
reserve or deliver to such Indemnitee the lesser of (i) the amount of the claim
or claims as awarded to the Indemnitee to be satisfied, subject to the
limitation set forth in Subsection 10.1(d) or (ii) the entire amount remaining
in the Indemnification Escrow. Any disputed amounts not awarded to the
Indemnitee shall promptly be transferred to the unreserved portion of the
Indemnification Escrow. Buyer and the Representative shall bear their respective
costs and expenses of any such arbitration. Buyer expressly acknowledges that
Polese, Pietzsch, Xxxxxxxx & Xxxxx, P.A. can continue to represent
Representative in any such dispute and hereby waives any conflict of interest
which might otherwise exist.
(f) Promptly after the Termination Date, the Escrow Agent shall
distribute to the Shareholders on a pro rata basis all remaining unreserved
amounts in the Indemnification Escrow, less an amount equal to the dollar amount
of all claims pursuant to Subsection 10.1(c) that are still in process and (i)
that are then-payable liquidated claims, (ii) for which a reserve established
pursuant to Subsection 10.1(d) then exists, or (iii) that are still in the
process of resolution pursuant to this Section 10.1. No new claims may be
brought under this Section 10.1 after the Termination Date.
(g) After the Termination Date, (i) as each matter referred to
in Subsection 10.1(f) is resolved or otherwise concluded and (ii) as each
undisputed unliquidated claim which remains unliquidated as of the Termination
Date is liquidated, the Escrow Agent shall distribute to the Shareholders their
respective pro rata portion of the Escrow Fund (as defined in Exhibit D) then
determined by the Escrow Agent to be free of any rights of any Indemnitee and,
when all such matters are resolved and such claims are liquidated, the
obligations under Subsection 10.1(b) hereof shall terminate. The Indemnification
Escrow shall be terminated when all of the Escrow Fund in the Indemnification
Escrow shall have been disbursed by the Escrow Agent in accordance with the
provisions hereof and the Escrow Agreement.
(h) In taking any action whatsoever hereunder, the
Representative shall be protected in relying upon any notice, paper or other
document reasonably believed by him to be genuine, or upon any evidence
reasonably deemed by him to be sufficient. The Representative may consult with
counsel in connection with his duties hereunder and shall be fully protected in
any act taken, suffered or permitted by him in good faith or in accordance with
the advice of counsel. The Representative shall not be liable to the
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Shareholders for the performance of any act or the failure to act so long as he
acted or failed to act in good faith within what he reasonably believed to be
the scope of his authority and for a purpose which he reasonably believed to be
in the best interests of the Shareholders.
10.2 Procedure. In the event that, at any time or from time to time after
the Effective Time, a person indemnified under Section 10.1 or 10.3 (an
"Indemnified Party") shall sustain a loss of any nature whatsoever against which
such Indemnified Party is indemnified under this Agreement, such Indemnified
Party shall notify the party hereto obligated to provide such indemnification
(the "Indemnitor") of any such loss so sustained. If Indemnitor is Buyer,
Indemnitor shall within thirty (30) days after transmittal of such notice pay to
such Indemnified Party the amount of such loss so sustained, subject to the
right to contest any claim. If Indemnitor is the Shareholders, payment shall be
governed by the Escrow Agreement. The Indemnified Party shall promptly notify
the Indemnitor of the existence of any claim, demand, or other matter involving
liabilities to third parties to which the Indemnitor's indemnification
obligations would apply and shall give the Indemnitor (acting through the
Representative if Indemnitor is the Escrow Agent) a reasonable opportunity to
defend the same or prosecute such action to conclusion or settlement
satisfactory to the Indemnified Party at Indemnitor's own expense and with
counsel of Indemnitor's selection (who shall be approved by Indemnified Party,
which approval shall not be unreasonably withheld); provided that the
Indemnified Party shall at all times also have the right to fully participate in
the defense at its own expense. If the Indemnitor shall, within a reasonable
time after said notice, fail to defend, the Indemnified Party shall have the
right, but not the obligation, to undertake the defense of, and to compromise or
settle (exercising reasonable business judgment) the claim or other matter on
behalf, for the account, and at the risk and expense of Indemnitor. Except as
provided in the preceding sentence, the Indemnified Party shall not compromise
or settle the claim or other matter without the prior written consent of the
Indemnitor. If the claim is one that cannot by its nature be defended solely by
the Indemnitor, the Indemnified Party shall make available all information and
assistance that the Indemnitor may reasonably request; provided that any
associated expenses shall be paid by the Indemnitor. If the Losses relate to a
Loss or demand asserted by a third party, the Indemnified Party and Indemnitor
shall jointly control the defense and settlement thereof and any settlement
shall require the prior written consent of both parties, which consent shall not
be unreasonably withheld.
10.3 Buyer's Indemnification. Buyer agrees to indemnify and hold
Shareholders harmless from and against any and all Losses which may accrue or be
sustained by Shareholders arising out of or as a result of (a) the conduct of
the business or ownership of Xxxxxxxx or the Surviving Corporation after the
Effective Time, or (b) any of the warranties, representations or covenants of
Buyer contained in this Agreement being incorrect, untrue or breached. The term
"Losses" for purposes of this Section 10.3 shall not include any loss resulting
from a diminution in the value of Buyer Common Stock received in the Merger.
Buyer also agrees to indemnify and hold Xxxxxxx X. Xxxxxxxx, LSI and LSRL
harmless from and against any and all losses which may accrue or be sustained by
Xxxxxxx X. Xxxxxxxx, LSI and/or LSRL arising out of or as a result of the
parties' inability to obtain the Releases of all of the Guarantees and a breach
by Xxxxxxxx of the guaranteed obligation. Notwithstanding the foregoing, no
amount will be paid pursuant to a written claim notice for indemnification
pursuant to this Section 10.3 (with respect to either a liquidated or
unliquidated claim) unless, and then only to the extent that, the aggregate
amount of Losses sustained by Shareholders, Xxxxxxx X. Xxxxxxxx, LSI, or LSRL as
a group and as to which written claim notices have been given by any of
Shareholders, Xxxxxxx X. Xxxxxxxx, LSI and/or LSRL to Buyer exceeds Two Hundred
Fifty Thousand Dollars ($250,000).
10.4 Contest; Challenge. If Indemnitor contests or challenges any claim
or action asserted against Indemnified Party referred to in this Article, it
shall do so at its own cost and expense, holding Indemnified Party harmless from
all costs, fees, expenses, debts, liabilities and charges in connection with
such contest; shall diligently defend against any such claim; and shall hold
Indemnified Party's business and assets free and harmless from any attachment,
execution, judgment, lien or other legal process.
-32-
10.5 Special Indemnity.
(a) By voting to approve this Agreement or by surrendering his
or its Certificate(s) evidencing Xxxxxxxx Shares at Closing, each Shareholder,
other than Shareholders who have perfected dissenter rights under applicable
law, severally and not jointly, agrees to defend and indemnify the Indemnitees
against and hold each of them harmless from each Shareholder's Pro Rata Portion
(defined below) of any and all Losses which any such Indemnitee may suffer or
incur by reason of the inaccuracy or breach of any of the representations,
warranties and covenants of Xxxxxxxx contained in Section 5.13 or Section 5.15
of this Agreement or any documents, certificates or agreements delivered
pursuant hereto. The right of Indemnitees to indemnification under this Section
10.5 shall apply only to those claims for indemnification, notice of which is
given pursuant to this Agreement to the Shareholders on or before the running of
the applicable statute of limitations; provided that such limitations shall not
apply to any claim resulting from fraud or intentional misrepresentation. As
used herein, "Pro Rata Portion" shall mean with respect to each Shareholder his
or its percentage ownership of Xxxxxxxx after the merger of Xxxxxxxx and LSLMS
and immediately prior to the Effective Time.
(b) Each Shareholder, other than Shareholders who have perfected
dissenter rights under applicable law, acknowledges and agrees that its
obligations under this Section 10.5 are recourse obligations enforceable against
it personally. Each Shareholder waives any right to require Indemnitees to (i)
proceed against any person or entity including any other Shareholder, (ii)
proceed against or exhaust any collateral or security or any part thereof, or
(iii) pursue any other remedy in its power, and waives any defense arising by
reason of any inability of any other obligor to pay or any defense based on
bankruptcy or insolvency or other similar limitations on creditors' remedies
with respect to any other person. Indemnitees agree to use their reasonable
efforts to collect any Losses from any available insurer or third party
indemnitors before collecting from the Shareholders or the Escrow Fund, and to
use their reasonable efforts to collect from the Escrow Fund before collecting
from the Shareholders; however, nothing in the foregoing clauses shall preclude
any claiming party from filing a claim against either the Shareholders or the
Escrow Fund from the outset. If any amounts are recovered from an insurer or
third party after payment to an Indemnitee of all Losses suffered or incurred by
it, such Indemnitee shall promptly pay over to the indemnifying party the excess
amount so recovered. Any claims against the Escrow Fund shall be subject to the
procedures set forth in Section 10.2.
(c) Notwithstanding anything to the contrary in this Article X,
including without limitation any provision of Section 10.2, the Representative
shall have sole and complete power and authority (i) to settle any matter which
is the subject of a claim for indemnification pursuant to this Section 10.5
which can be settled solely with the payment of money (ii) to conduct and settle
any litigation which is the subject of a claim for indemnification pursuant to
this Section 10.5 which can be settled solely with the payment of money, and
(iii) to control and direct, subject to Buyer's approval, which shall not be
unreasonably withheld or delayed, any and all remediation or other clean-up or
mitigation of any environmental condition which is the subject of a claim for
indemnification pursuant to this Section 10.5.
10.6 Waiver. Each Shareholder irrevocably, knowingly and voluntarily
waives any claim which such Shareholder now has or may hereafter have against
Indemnitees, the Escrow Fund, and any collateral or security whatsoever now or
hereafter held by Indemnitees, arising out of or resulting from payment or
demand for payment of Losses, whether such claim is characterized as a claim for
contribution, indemnification, subrogation or otherwise; provided that the
foregoing shall not limit the Shareholders' ability to challenge the propriety
of any claim for Losses made by Indemnitee(s).
10.7 Average Closing Price. To the extent that the Indemnitees make a
claim against the Escrow Fund pursuant to the Escrow Agreement, and such claim
is paid in shares of Buyer Common Stock, then for purposes of such payment, the
shares of Buyer Common Stock shall be valued at the Average Closing Price.
10.8 Reduction of Losses. The amount of any Losses for which
indemnification is provided under this Article X shall be reduced to take
account of any net tax benefit realized arising from the
-33-
incurrence or payment of any such Losses or from the receipt of any such
indemnification payment and shall be reduced by the insurance proceeds received
and any other amount, if any, recovered from third parties by an Indemnitee (or
any of their affiliated entities) with respect to any Losses. The Indemnified
Party shall be obligated to use commercially reasonable efforts to prosecute
diligently and in good faith claims under any applicable insurance policies
(including, without limitation, any applicable insurance policies maintained by
either of the Companies or the Surviving Corporation) and against other third
parties who may be responsible for Losses prior to collecting indemnification
for such Losses under this Article X. If any Indemnitee (or any of their
affiliated entities) shall have received any payment pursuant to this Article X
with respect to any Loss and shall subsequently have received insurance proceeds
or other amounts with respect to such Loss, then such Indemnitee (or its
affiliated entities) shall promptly pay over to the Representative (for
distribution pro rata to the Shareholders) the amount so recovered but not in
excess of the amount previously so paid by the Shareholders.
10.9 Remedies. The sole and exclusive remedy of any party to this
Agreement for any claim arising under this Agreement against any other party
hereto shall be the indemnification provided in this Article X, and each party
agrees that it will not pursue any other remedy, except that either party may
seek specific performance or injunctive relief.
ARTICLE XI
GENERAL PROVISIONS
11.1 Brokers. Xxxxxxxx represents and warrants to Buyer and Buyer Sub
that, except for Lawrence's financial advisor, Alex. Xxxxx & Sons Incorporated,
no broker, finder or financial advisor is entitled to any brokerage, finder's or
other fee or commission in connection with the Merger or the transactions
contemplated by this Agreement based upon arrangements made by or on behalf of
Xxxxxxxx. Buyer represents and warrants to Xxxxxxxx that no broker, finder or
financial advisor is entitled to any brokerage, finder's or other fee or
commission in connection with the Merger or the transactions contemplated by
this Agreement based upon arrangements made by or on behalf of Buyer.
11.2 Notices. All notices, claims, demands and other communications
hereunder shall be in writing and shall be deemed given if delivered personally
or by facsimile or mailed by registered or certified mail (postage prepaid,
return receipt requested) to the respective parties at the following addresses
(or at such other address for a party as shall be specified by like notice):
(a) If to Xxxxxxxx, to:
Xxxxxxxx Semiconductor Laboratories, Inc.
0000 Xxxx Xxxxxxxxxx Xxxxx
Xxxxx, Xxxxxxx 00000
Attention: Xxxxxxx X. Xxxxxxxx, President
Facsimile Number: (000) 000-0000
with a copy to:
Polese, Pietzsch, Xxxxxxxx & Xxxxx, P.A.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Xxxxxxx X. Xxxxxx, Esq.
Facsimile Number: (000) 000-0000
-34-
(b) If to Buyer, or Buyer Sub or Holdings, to:
Advanced Technology Materials, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Attention: Xxxxxx X. Xxxxxxx, VP
Facsimile Number: (000) 000-0000
with a copy to:
Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Attention: Xxxxx X. Xxxxx, Esq.
Facsimile Number: (000) 000-0000
and
(c) If to the Representative, to:
Xxxxxxx X. Xxxxxxxx
000 Xxx Xxxxxxx Xxxxx Xxxx.
Xxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
with a copy to:
Polese, Pietzsch, Xxxxxxxx & Xxxxx, P.A.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxx 00000-0000
Attention: Xxxxxxx X. Xxxxxxxx, Esq.
Facsimile Number: (000) 000-0000
All such notices shall be deemed received on the date of delivery (if delivered
personally or by facsimile) or on the date shown on the return receipt (if
delivered by mail).
11.3 Descriptive Headings. The headings contained in this Agreement are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement.
11.4 Entire Agreement; Assignment. This Agreement (including the
Schedules, Exhibits and other documents and instruments referred to herein)
constitutes the entire agreement and supersedes all other prior agreements and
understandings, both written and oral, among the parties or any of them, with
respect to the subject matter hereof, and shall not be assigned by operation of
law or otherwise.
11.5 Governing Law. This Agreement 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.
11.6 Counterparts. This Agreement 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.
11.7 Validity. The invalidity or unenforceability of any provision of
this Agreement shall not affect the validity or enforceability of any other
provisions of this Agreement, which shall remain in full force and effect.
-35-
11.8 Investigation. The respective representations and warranties of
Buyer or Xxxxxxxx contained herein or in the certificates or other documents
delivered prior to the Effective Time shall not be deemed waived or otherwise
affected by any investigation made by the other.
11.9 Consents. For purposes of any provision of this Agreement requiring,
permitting or providing for the consent of any party, the written consent of the
Chief Executive Officer of such party shall be sufficient to constitute such
consent.
11.10 Jurisdiction. Each party hereby irrevocably: (1) agrees that any
suit, action, or other legal proceeding arising out of this Agreement or out of
any of the transactions contemplated hereby or thereby, may be brought in any
New York court or United States federal court located in the County of New York;
(2) consents to the jurisdiction of each such court in any such suit, action, or
legal proceeding; (3) waives any objection which such party may have to the
laying of venue of any such suit, action, or legal proceeding in any of such
courts; and (4) agrees that New York is the most convenient forum for litigation
of any such suit, action, or legal proceeding.
-36-
IN WITNESS WHEREOF, each of Buyer, Buyer Sub and Xxxxxxxx has caused this
Agreement 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
-------------------------------------------
-37-
EXHIBITS
3.6(a)(xiii)-A Affiliate Agreement Section 3.6(a)(xiii)-A
3.6(a)(xiii)-B Employment Agreement Section 3.6(a)(xiii)-B
3.6(a)(x) Release Section 3.6(a)(x)
3.6(e) Registration Rights Agreement Section 3.6(e)
A-1 Designated Employees Section 6.2
A-2 Staying Bonus and Severance Agreement Section 6.2
B Noncompete Agreement --
Xxxxxxx X. Xxxxxxxx Section 7.8
C Consulting Agreement --
Xxxxxxx X. Xxxxxxxx Section 7.9
8.3(d) Proprietary Information and
Inventions Agreement Section 8.3(d)
D Escrow Agreement Subsection 10.1(c)
-38-
SCHEDULES
Schedule Contents
Number Number
-------- --------
4.1(c) Persons whose knowledge constitute the "Knowledge" of Xxxxxxxx
4.2(c) Filings, permits, authorizations, consents and approvals required
for Buyer and/or Buyer Sub to consummate transaction
4.2(h) Material liabilities of Buyer
5.1 Trade names and assumed names
5.2 Authorized capital stock, number and class of issued and
outstanding stock, identity of owners of capital stock, and
identity of anyone with a right to acquire any capital stock; pro
forma following merger
5.4 Filings, permits, authorizations, consents and approvals required
for Xxxxxxxx to consummate transaction
5.5 Material errors in Xxxxxxxx financial statements
5.6 Material adverse changes and other specified information
occurring since date of unaudited financial statement
5.7 Litigation; expected litigation
5.8(a) Contracts and other instruments
5.8(b) Consulting agreements and other contracts with certain provisions
5.9(a) Employee benefits programs
5.10(a) Known non-compliance of products with laws, statutes, etc.
5.10(b) Notices received from regulatory agencies regarding possible
violations, or facts that might lead to such
5.10(c) Facts that might lead to recall of products, termination of
marketing of products, etc.
5.10(d) Recalls of products
5.11(a) Patents, applications for patents, registration of trademarks,
other intellectual property
5.11(c) Nondisclosure agreements to which Xxxxxxxx is a party or bound
5.11(d) Royalties, fees or other payments owed by reason of any
intellectual property
5.11(e) Notices of infringement
5.12(b) Property agreements (leases, etc.)
5.13(b) Environmental notices received, existence of USTs, asbestos, etc.
5.13(c) Environmental incidents
5.14 Notices of violations of city codes, condemnation actions, etc.
5.15(a) Tax information
5.15(b) Subsidiaries
5.16 Product liability insurance claims
5.17 Other material liabilities
5.20 Mortgages, liens, etc.
5.21 Debts
5.22 Accounts Receivable
5.25 Employee Names
5.26 Related Parties; Transactions
5.27 Xxxx-Xxxxx-Xxxxxx
5.28 Customers
5.30 Insurance; Unemployment insurance ratings
7.6 Guarantees
8.3(d) Proprietary Information and Inventions Agreements
-39-
FIRST AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This FIRST AMENDMENT TO AGREEMENT AND PLAN OF MERGER is dated as of June 6,
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 (the "Merger Agreement"), and wish to amend the Merger
Agreement in order to permit the following: (i) the possible transfer by Buyer
of the issued and outstanding shares of capital stock of Buyer Sub to Holdings,
(ii) the transfer by Xxxxxxx X. Xxxxxxxx of the issued and outstanding shares of
capital stock of LSLMS to LSL, and (iii) the adoption by Holdings or Buyer, as
appropriate, of a stock option plan for 900,000 shares of common stock. The
Companies also wish to amend the Merger Agreement in order to eliminate any
offset of the intercompany indebtedness against the purchase price.
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 1.1 is hereby amended to insert the following at the end of
the final sentence: "unless Buyer elects in its discretion to contribute prior
to the Effective Time all of the issued and outstanding shares of capital stock
of Buyer Sub to Holdings, in which case the Surviving Corporation shall be a
wholly-owned subsidiary of Holdings."
3. Section 3.1(b) is hereby amended and restated to read in its entirety
as follows: "Each share of common stock of LSL ("Xxxxxxxx Share") held in the
treasury of LSL, if any, or by any subsidiary of Xxxxxxxx and each such Xxxxxxxx
Share held by Buyer or any subsidiary of Buyer immediately prior to the
Effective Time shall be canceled and retired and cease to exist, and no
consideration shall be given in exchange therefor."
4. Section 3.4 is hereby amended to delete the following from the first
paragraph: "minus any amounts owed to LSL by any related parties as set forth in
Schedule 5.26."
5. Section 3.6(a)(xiv) is hereby amended and restated to read in its
entirety as follows: "Written evidence satisfactory to Buyer that Xxxxxxx X.
Xxxxxxxx, the sole stockholder of LSLMS, has contributed immediately prior to
the Effective Time all of the issued and outstanding shares of capital stock of
LSLMS to LSL, with LSLMS becoming a wholly-owned subsidiary of LSL and that all
consents and approvals necessary or appropriate for such contribution have been
obtained."
6. Section 3.6(a)(xvii) is hereby amended to delete the final sentence.
7. Section 4.2(k) is hereby amended to insert the following as a new
final sentence: "Notwithstanding the foregoing, Buyer may elect in its
discretion to contribute prior to the Effective Time all of the issued and
outstanding shares of capital stock of Buyer Sub to Holdings, in which case the
Surviving Corporation shall become a wholly-owned subsidiary of Holdings."
8. Section 5.2 is hereby amended to delete the second sentence.
-40-
9. Section 6.1(f) is hereby amended to insert the following as subsection
(iv): "(iv) Xxxxxxx X. Xxxxxxxx, the sole stockholder of LSLMS, may contribute
all of the issued and outstanding shares of capital stock of LSLMS to LSL, with
LSLMS becoming a wholly-owned subsidiary of LSL."
10. Section 7.15(f) is hereby amended to insert the following as
subsections (iii) and (iv): "(iii) "Buyer may in its discretion contribute
prior to the Effective Time all of the issued and outstanding shares of capital
stock of Buyer Sub to Holdings, in which case the Surviving Corporation shall be
a wholly-owned subsidiary of Holdings; and (iv) (A) Buyer may approve a new
stock option plan for up to 900,000 shares of Buyer Common Stock, if the closing
of the transactions contemplated by the ADCS Merger Agreement shall not have
occurred on or before the Effective Time, or (B) Holdings may increase the
authorized number of shares of Holdings Common Stock available in its existing
stock option plan from 750,000 to 900,000, if the closing of the transactions
contemplated by the ADCS Merger Agreement shall have occurred on or before the
Effective Time."
11. The final sentence of Section 10.5(a) is hereby amended and restated
to read in its entirety as follows: "As used herein, "Pro Rata Portion" shall
mean with respect to each Shareholder his or its percentage ownership of LSL
immediately prior to the Effective Time."
12. 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.
13. 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.
14. 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
-41-
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
----------------------------------------
-42-
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.
G-1
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
--------------------------------------
G-2
THIRD AMENDMENT TO
AGREEMENT AND PLAN OF MERGER
This THIRD AMENDMENT TO AGREEMENT AND PLAN OF MERGER is dated as of
August 19, 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 a wholly-owned subsidiary of Buyer ("Buyer Sub"), ATMI
HOLDINGS, INC., a Delaware corporation and wholly-owned subsidiary of Buyer
("Holdings"), XXXXXXXX SEMICONDUCTOR LABORABORIES, INC., an Arizona corporation
("LSL"), and XXXXXXXX SEMICONDUCTOR LABORATORIES MARKETING AND SALES, INC., an
Arizona corporation ("LSMS"; LSL and LSLMS are referred to collectively as
"Xxxxxxxx"); and all of the parties are referred to as the "Companies."
The Companies are parties to that certain Agreement and Plan of Merger
dated May 17, 1997, as amended by First and Second Amendments to Agreement and
Plan of Merger dated June 6, 1997 and as of July 30, 1997, respectively (as
amended, the "Merger Agreement"), and wish to amend further the Merger Agreement
as set forth herein.
In consideration of the foregoing and the respective representations,
warranties, covenants and agreements set forth herein, the parties agree as
follows:
1. Section 9.1(b) of the Merger Agreement is hereby amended to read
in its entirety as so amended as follows:
"By Buyer or Xxxxxxxx if the Merger shall not have been consummated by September
30, 1997, unless the failure of the Effective Time to occur by such date shall
be due to the failure of the party seeking to terminate this Agreement to
perform or observe the covenants and agreements of such party set forth herein.
"
2. Capitalized terms not otherwise defined herein shall have the
meanings provided in the Merger Agreement.
3. 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.
4. 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.
5. 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.
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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 ACQUSITION
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, 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
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