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.
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
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
