AGREEMENT AND PLAN OF MERGER Dated as of February 4, 2014, by and among ATMI, INC. ENTEGRIS, INC. and ATOMIC MERGER CORPORATION

of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by Applicable Law, waiver of those conditions), or at such other place, time and date as shall be agreed in writing between the Company and Parent; provided, however, that, notwithstanding the satisfaction or waiver of the conditions set forth in Article VII, Parent and Merger Sub shall not be obligated to effect the Closing prior to the third (3rd) Business Day following the final day of the Marketing Period, unless Parent shall request an earlier date on two (2) Business Days’ prior written notice (but, subject in such case, to the satisfaction or waiver of the conditions set forth in Article VII (other than those conditions that by their nature are to be satisfied at the Closing, but subject to the satisfaction or, to the extent permitted by Applicable Law, waiver of those conditions)).  The date on which the Closing occurs is referred to in this Agreement as the “Closing Date”.

Taxes have been paid.  Until surrendered as contemplated by this Section 2.02(c), each share of Company Common Stock, and any Certificate with respect thereto, shall be deemed at any time from and after the Effective Time to represent only the right to receive upon such surrender the Merger Consideration that the holders of shares of Company Common Stock are entitled to receive in respect of such shares pursuant to Section 2.01(c). No interest shall be paid or shall accrue on the cash payable upon surrender of any Certificate (or shares of Company Common Stock held in book-entry form).

Effective Time, the Company Board (or, if appropriate, any committee administering any Company Stock Plans) will take all actions as it deems necessary or appropriate to give effect to this Section 2.04 to provide that:

Life Sciences Business pursuant to the Life Sciences SAPA (except for the filing of the appropriate merger documents as required by the DGCL).  The Company has duly executed and delivered this Agreement and, assuming the due authorization, execution and delivery by Parent and Merger Sub, this Agreement constitutes its legal, valid and binding obligation, enforceable against it in accordance with its terms except as enforcement may be limited by bankruptcy, insolvency, reorganization or similar laws affecting creditors’ rights generally and by general principles of equity.

Awards or Company Restricted Stock Unit Awards), (B) provide any preemptive rights, subscription rights, anti-dilutive rights, rights of first refusal or similar rights with respect to any Company Securities, (C) obligate the Company or any of its Subsidiaries to provide funds or make investments (in the form of a loan, capital contribution or otherwise), (D) constitutes a stockholder rights plan (or similar plan commonly referred to as a “poison pill”) or (E) obligate the Company or any Subsidiary of the Company to grant, extend or enter into any such agreements relating to any Company Securities.  Neither the Company nor any of its Subsidiaries is a party to any stockholders’ agreement, voting trust agreement, registration rights agreement or other similar agreement or understanding relating to any Company Securities or any other agreement relating to the disposition, voting or dividends with respect to any Company Securities.  All outstanding shares of Company Common Stock and all outstanding shares of capital stock of each of the Company’s Subsidiaries have been duly authorized and validly issued and are fully paid, nonassessable and free and clear of all Liens other than any Liens resulting from restrictions on transfer under applicable securities laws.  Since the Capitalization Date through the date hereof, neither the Company nor any of its Subsidiaries has (A) issued any Company Securities or incurred any obligation to make any payments based on the price or value of Company Securities or dividends paid thereon, other than pursuant to Company Stock Options, Company Restricted Stock Awards and Company Restricted Stock Unit Awards that were outstanding as of the Capitalization Date as set forth in Section 3.03(a) or (B) established a record date for, declared, set aside for payment or paid any dividend on, or made any other distribution in respect of, any Company Securities.  Section 3.03(b) of the Company Disclosure Letter contains a correct and complete list, as of the Capitalization Date, of all outstanding Company Stock Options, Company Restricted Stock Awards and Company Restricted Stock Unit Awards, including the holder, date of grant number of shares of Company Common Stock underlying such award (with respect to Company Restricted Stock Unit Awards, assuming achievement of the maximum level of performance under such Company Restricted Stock Unit Awards), the type of Company Stock Option (incentive stock option or nonqualified stock option) and, where applicable, exercise price.

approvals, orders, authorizations, registrations, declarations and filings, the failure of which to be obtained, made or given have not had and would not reasonably be expected to have a Company Material Adverse Effect or prevent, materially delay or materially impair the consummation of the transactions contemplated by this Agreement.

 

Subsidiaries are bound, (ii) the Company and its Subsidiaries maintain commercially reasonable and industry standard policies and procedures regarding data security and privacy and maintain administrative, technical, and physical safeguards that are commercially reasonable, and (iii) there have been no material security breaches relating to, or violations of any security policy regarding, or any unauthorized access of, any data or information in the possession of the Company or any of its Subsidiaries.

Subsidiaries which the Company or its Subsidiaries reasonably expect will result in purchases or sales in the aggregate amount that exceed $5,000,000 in the 2013 or 2014 fiscal year;

(b) All of the Material Contracts are valid and binding and in full force and effect (except those that are terminated after the date of this Agreement in accordance with their respective terms and not as a result of a breach or default thereunder by the Company or any of its Subsidiaries). To the Knowledge of the Company, no Person is challenging the validity or enforceability of any Material Contract in any material respect. Neither the Company nor any of its Subsidiaries, nor to the Knowledge of the Company, any of the other parties thereto, has violated any provision of, or committed or failed to perform any act which (with or without notice, lapse of time or both) would constitute a default under any provision of, and neither the

Company nor any of its Subsidiaries has received notice that it has violated or defaulted under, any Material Contract, except for those violations and defaults which have not had and would not reasonably be expected to have a Company Material Adverse Effect.  No party to any Material Contract has given the Company or any of its Subsidiaries written notice of its intention to cancel, terminate, change the scope of its rights under or fail to renew any Material Contract.  To the Knowledge of the Company, no current or former officer or director of the Company (i) has (whether directly or indirectly through another entity in which such Person has a material interest, other than as the holder of less than 2% of a class of securities of a publicly traded company) any material interest in any property or assets of the Company (except as a stockholder) or any competitor, customer, supplier or agent of the Company or (ii) is currently a party to any Material Contract.

in compliance with all Applicable Laws respecting immigration, employment and employment practices, terms and conditions of employment, including but not limited to wages and hours and the classification of employees and independent contractors.

Sciences Liabilities.  The Company Disclosure Letter also sets forth beneath the addresses a true, accurate and complete list of all real property leases, including all amendments thereto, relating to the Owned Real Property and the Leased Real Property, specifying the lessor(s) and lessee(s) of such leased property and the date of such lease (each, a “Real Property Lease” and collectively, the “Real Property Leases”).  The Company has delivered to Parent true, correct and complete copies of the Real Property Leases in each case, as amended or otherwise modified and in effect.

and at the time of the Company Stockholders Meeting, 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 the light of the circumstances under which they are made, not misleading.  The Proxy Statement will comply as to form in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder.  Notwithstanding the foregoing, the Company makes no representation or warranty with respect to any statements made in the Proxy Statement based on written information supplied by or on behalf of Parent or Merger Sub expressly for inclusion in the Proxy Statement.

modification, under any Insurance Policy. There have been no changes to the terms, provisions or conditions of any Insurance Policy since December 31, 2013.

laundering laws, rules, regulations and orders.  The operations of the Company and its Affiliates have been conducted at all times in compliance with applicable financial recordkeeping and reporting requirements of the applicable money laundering-related laws.

Non-Life Sciences Subsidiary, except, in each case, for accounts receivables and accounts payables entered into the ordinary course of business and which will be settled in accordance with the Life Sciences SAPA.

do not and will not (i) contravene, conflict with, or result in any violation or breach of any provision of the Parent Charter or Parent By-laws or the certificate of incorporation or by-laws of Merger Sub, (ii) assuming compliance with the matters referred to in Section 4.03(a), contravene, conflict with or result in any violation or breach of any provision of any Applicable Law, (iii) require any consent or other action by any Person under, constitute a default, or an event that, with or without notice or lapse of time or both, would constitute a default, under, or cause or permit the termination, cancellation, acceleration or other change of any right or obligation or the loss of any benefit to which Parent or any of its Subsidiaries is entitled under any provision of any Contract binding upon Parent or any of its Subsidiaries or any governmental licenses, authorizations, Permits, consents (including consents required by Contract), approvals, variances, exemptions or Orders affecting, or relating in any way to, the assets or business of Parent and any of its Subsidiaries or (iv) result in the creation or imposition of any Lien on any asset of Parent or any of its Subsidiaries, with such exceptions, in the case of each of clauses (ii) through (iv), as have not had and would not reasonably be expected to have a Parent Material Adverse Effect.

included in the fee letter dated the date hereof referred to therein (the “Fee Letter”), a true and complete copy of which has been delivered to the Company with fees, economic terms and other customary provisions redacted), to provide the financing set forth in the Debt Commitment Letter (the “Debt Financing”).  The Debt Commitment Letter has not been amended or modified in any manner prior to the date of this Agreement and the respective commitments contained in the Debt Commitment Letter have not been withdrawn, terminated or rescinded in any respect.  Neither Parent nor Merger Sub has entered into any agreement, side letter, contract or other arrangement relating to the financing of the payments to be made by them at the Effective Time, other than as set forth in the Debt Commitment Letter and the Fee Letter and the engagement letter related thereto or as permitted under Section 6.11 (complete copies of each of which have been provided to the Company, with only fee and other economic amounts redacted).  The Debt Commitment Letter is in full force and effect and represents a valid, binding and enforceable obligation of Parent and, to the knowledge of Parent and Merger Sub, a valid, binding and enforceable obligation of the Commitment Party, to provide the financing contemplated thereby subject only to the satisfaction or waiver of the conditions precedent set forth in the Debt Commitment Letter and, in each case, subject to the qualification that such enforceability may be limited by bankruptcy, insolvency, reorganization or other laws of general application relating to or affecting rights of creditors.  Parent has fully paid (or caused to be paid) any and all commitment fees and other amounts, if any, that are due and payable on or prior to the date of this Agreement in connection with the Debt Financing.  As of the date of this Agreement, assuming the accuracy of the representations and warranties set forth in Article III such that the condition set forth in Section 7.02(a) is satisfied, no event has occurred which, with or without notice, lapse of time or both, would or would reasonably be expected to constitute a breach or default on the part of Parent, or, to the knowledge of Parent or Merger Sub, any other party thereto under the Debt Commitment Letter.  As of the date of this Agreement, assuming the accuracy of the representations and warranties set forth in Article III such that the condition set forth in Section 7.02(a) is satisfied, the performance by the Company of its obligations under this Agreement and the satisfaction of the other conditions set forth in Section 7.01 or Section 7.02, neither Parent nor Merger Sub has any reason to believe that Parent will be unable to satisfy on a timely basis any of the conditions to the Debt Financing to be satisfied pursuant to the Debt Commitment Letter (subject to any “market flex” provisions included in the Fee Letter) on or prior to the Closing Date. There are no conditions precedent or other contingencies related to the funding of the full amount of the Debt Financing (including pursuant to any “market flex” provisions included in the Fee Letter), other than the conditions precedent set forth in and contemplated by the Debt Commitment Letter and the payment of customary fees. Parent and Merger Sub understand and acknowledge that under the terms of this Agreement, Parent’s and Merger Sub’s obligations to consummate the Merger are not in any way contingent upon or otherwise subject to Parent’s or Merger Sub’s consummation of any financing arrangements, Parent’s or Merger Sub’s obtaining of any financing or the availability, grant, provision or extension of any financing to Parent or Merger Sub.

 

Section 4.07. No Ownership of Company Common Stock. None of Parent, Merger Sub or any of their Affiliates is or has been during the past three years an “interested stockholder” of the Company as defined in Section 203 of the DGCL. None of Parent, Merger Sub or any of their controlled Affiliates beneficially owns, directly or indirectly, or is the record holder of (or during the past three years has beneficially owned, directly or indirectly, or been the record holder of), or is (or during the past three years has been) a party to any Contract (other

than this Agreement and the Confidentiality Agreement), arrangement or understanding for the purpose of acquiring, holding, voting or disposing of, in each case, any shares of Company Common Stock or any option, warrant or other right to acquire any shares of Company Common Stock.

that no action or failure to take action with respect to matters specifically addressed by any of the provisions of the next sentence shall constitute a breach under this sentence unless such action or failure to take action would constitute a breach of such provision of the next sentence.  In addition, and without limiting the generality of the foregoing and to the fullest extent permitted by Applicable Law, from the date of this Agreement until the earlier of termination of this Agreement and the Effective Time, except (i) as set forth in Section 5.01 of the Company Disclosure Letter, (ii) for any actions required to be taken pursuant to the terms of the Life Sciences SAPA (including, without limitation, the Restructuring Transactions or pursuant to the Transition Services Agreement) or otherwise solely related to the Life Sciences Assets or any Life Sciences Liabilities (except as specifically provided for below), or (iii) with Parent’s prior written consent (which consent shall not be unreasonably withheld, conditioned or delayed), the Company shall not, and shall not permit any of its Subsidiaries to, do any of the following:

 

domestic Non-Life Sciences Subsidiaries or solely to the extent provided for in the Restructuring Transactions;

monetary payment by the Company or any of its Subsidiaries in an amount not to exceed $5,000,000 individually or $10,000,000 in the aggregate;

material amendment to an income or other material Tax Return; or (E) waive or extend any statute of limitations in respect of any material Taxes except as required by Applicable Law; or (2) fail to promptly notify Parent of any material audit, examination, investigation, written claim or other proceeding by any Governmental Entity relating to Taxes that arises prior to the Effective Time;

waive any provision in any Contract contemplating or otherwise relating to an Acquisition Proposal or (v) release or terminate or permit the release of any Person from, or termination of, or waive or modify or permit the waiver or modification of any provision of, or fail to enforce or cause not to be enforced, any confidentiality, standstill or similar agreement to which the Company or any of its Subsidiaries is a party except to the extent that the failure to so release, terminate, waive, modify or fail to enforce would be inconsistent with the fiduciary duties of the Company Board under Applicable Law. The Company shall, and shall cause its Subsidiaries and its and their directors and officers to, and shall use its reasonable best efforts to cause its and their respective Representatives (other than its and their directors and officers) to, immediately cease and cause to be terminated all discussions and negotiations with any Person that may be ongoing with respect to any Acquisition Proposal.  The Company shall promptly (but in no event later than forty-eight (48) hours following the execution of the Agreement) demand that each Person that has heretofore executed a confidentiality agreement with the Company with respect to consideration of a possible Acquisition Proposal at anytime after January 1, 2013 (other than agreements that have expired by their terms) immediately return or destroy all confidential information heretofore furnished by the Company, any of its Subsidiaries or any of its Representatives to such Person, its Subsidiaries or its Representatives.

non-public information relating to the Company or any of its Subsidiaries, including of the identity of the person making the Acquisition Proposal or other request and the material terms and conditions thereof, and shall promptly (and in no event later than twenty-four (24) hours after receipt) provide copies to Parent of any written proposals, indications of interest, and/or draft agreements relating to such Acquisition Proposal.  The Company shall keep Parent informed, on a prompt basis, as to the status of (including changes to any material terms of, and any other material developments with respect to) such Acquisition Proposal (including by promptly (and in no event later than twenty-four (24) hours after receipt) providing to Parent copies of any additional or revised written proposals, indications of interest, and/or draft agreements relating to such Acquisition Proposal).  The Company agrees that it and its Subsidiaries will not enter into any agreement with any person subsequent to the date of this Agreement which prohibits the Company from providing any information to Parent in accordance with this Section 5.02.

such Alternative Acquisition Agreement and pays the applicable Termination Fee in compliance with Section 8.03(b)(i) and (y) clauses (I) or (II) if:

statement that describes the Company’s receipt of an Acquisition Proposal and the operation of this Agreement with respect thereto (without including a reaffirmation) shall not be deemed an Adverse Recommendation Change.

any announcements, approvals, issuances, or regulations of any Governmental Entity, constitute an Intervening Event, or (E) any matter relating to the foregoing or consequence of the foregoing, constitute an Intervening Event.

reasonable opportunity to review and comment on such document or response or to participate in any meeting (telephonic or otherwise) with the SEC.  The Company agrees that the Company shall use its reasonable best efforts to cause the Proxy Statement to be disseminated to its stockholders as promptly as reasonably practicable after the resolution of any such comments.

all documentation to effect all necessary filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, (ii) obtain all approvals, consents, registrations, waivers, Permits, authorizations, orders and other confirmations from any Governmental Entity necessary, proper or advisable to consummate the transactions contemplated by this Agreement, (iii) execute and deliver any additional instruments necessary to consummate the Merger and the other transactions contemplated by this Agreement and (iv) defend or contest in good faith any Action brought by a third party that could otherwise prevent or impede, interfere with, hinder or delay in any material respect the consummation of the transactions contemplated by this Agreement, in the case of each of clauses (i) through (iv), other than with respect to filings, notices, petitions, statements, registrations, submissions of information, applications and other documents, approvals, consents, registrations, Permits, authorizations and other confirmations relating to Regulatory Laws, which are the subject of Section 6.03(c) and Section 6.03(d).

relationships, contractual rights or obligations of the Company or Parent or their respective Subsidiaries and (D) effectuating any other change or restructuring of the Company or Parent or their respective Subsidiaries, in each case, to the extent necessary to obtain all consents that may be required under the HSR Act or any other applicable Regulatory Laws or to resolve any objections asserted by any Governmental Entity with competent jurisdiction.  Nothing in this Section 6.03 shall (W) require Parent or Merger Sub to sell, divest, convey or hold separate or otherwise take any other action (and the Company will not undertake any such action without Parent’s prior written consent) that limits Parent’s and its Subsidiaries’ freedom of action with respect to, or their ability to retain, particular products, assets or businesses of Parent or the Company or their respective Subsidiaries, or agree to take any such action, other than, solely in respect of products, assets or businesses of the Company (and not, for the avoidance of doubt, any products, assets, or businesses of Parent), only to the extent that such action would not reasonably be expected to impact in any material respect the expected benefits to Parent and its Subsidiaries, taken as a whole, of the transactions contemplated hereby, (X) require Parent, the Company or their respective Subsidiaries to take or agree to take any action with respect to its business or operations unless the effectiveness of such agreement or action is conditioned upon the Closing, (Y) require any of the parties to this Agreement to compensate any third party, commence or participate in litigation or offer or grant any accommodation (financial or otherwise) to any third party to obtain any such consent or approval or (Z) permit the Company or any of its Subsidiaries to take or agree to any action or other matter pursuant to this Section 6.03 referred to in clauses (B)-(D) or (X) above without Parent’s prior written consent, not to be unreasonably withheld.  Other than with respect to the payment of all filing fees in connection therewith, which will be borne solely by Parent, the parties shall each bear their own costs and expenses of preparing such notifications and filings, including the fees of their respective legal counsel.

competitively sensitive material provided to the other parties under this Section 6.03(d) as “outside counsel only.”  Such materials and the information contained therein shall be given only to the outside legal counsel of the recipient and will not be disclosed by such outside counsel to employees, officers, or directors of the recipient, unless express written permission is obtained in advance from the source of the materials.

in effect on the date of this Agreement, to the fullest extent permitted from time to time under Applicable Law, which provisions shall not be amended except as required by Applicable Law or except to make changes permitted by Applicable Law that would enlarge the scope of the Company Indemnified Parties’ indemnification rights thereunder.

employee benefits (other than equity compensation) that are no less favorable in the aggregate than those provided under the applicable Company Benefit Plans in which such Continuing Employee participated immediately prior to the Closing Date.  From January 1, 2015 through at least the one-year anniversary of the Closing, Parent shall, or shall cause its Subsidiaries to, provide each Continuing Employee with base salary or base wages, annual cash bonus opportunities and employee benefits (other than equity compensation) that are no less favorable than the base salary or base wages and annual cash bonus opportunities and that are no less favorable in the aggregate than the employee benefits (other than equity compensation) provided to similarly situated employees of Parent or its Subsidiaries.

plan(s) have been terminated pursuant to the methodology set forth in the applicable plan not later than the day immediately preceding the Closing Date.

Financing and to consummate the Debt Financing at the Effective Time, including using reasonable best efforts to (i) maintain in effect the Debt Commitment Letter; (ii) satisfy on a timely basis all of the conditions precedent set forth in the Debt Commitment Letter; (iii) negotiate, execute and deliver definitive documentation for the Debt Financing that reflects the terms contained in the Debt Commitment Letter (subject to any “market flex” provisions included in the Fee Letter or any fee letter relating to an Alternative Financing); and (iv) in the event that the conditions set forth in Section 7.01 and Section 7.02 and the conditions precedent set forth in the Debt Commitment Letter have been satisfied or, upon funding would be satisfied, cause the financing providers to fund the Debt Financing in accordance with the terms of the Debt Commitment Letter.  Parent and Merger Sub shall have the right from time to time to amend, restate, replace, supplement or otherwise modify, or waive any of its rights under, the Debt Commitment Letter and/or substitute other debt or equity financing for all or any portion of the Debt Financing from the same and/or alternative financing sources (together with any alternative financing as described in clause (b) below, each an “Alternative Financing”); provided, that any such amendment, restatement, supplement, replacement or other modification to or waiver of any provision of the Debt Commitment Letter that amends the Debt Financing and/or substitution of all or any portion of the Debt Financing shall not, without the prior written consent of the Company, (A) reduce the aggregate amount of the Debt Financing (including by increasing the amount of fees to be paid or original issue discount, unless the Debt Financing is increased by a corresponding amount on substantially the same terms as provided in the applicable Debt Commitment Letter) to be funded at Closing, (B) impose new or additional conditions precedent or contingencies to the Debt Financing as set forth in the Debt Commitment Letter or otherwise amend, modify, or expand any conditions precedent to the funding of the Debt Financing (unless such conditions precedent or contingencies to the Alternative Financing would not be reasonably expected to (i) prevent or delay the Closing, (ii) make the funding of the Debt Financing (or the satisfaction of the conditions to obtaining the Debt Financing) less likely to occur, (iii) adversely affect the ability of Parent to consummate the transactions contemplated by this Agreement or (iv) adversely impact the ability of Parent or Merger Sub to enforce its respective rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto), (C) release or consent to the termination of the obligations of the lenders under the Debt Commitment Letter (except for assignments and replacements of an individual lender under the terms of or in connection with the syndication of the Debt Financing or as otherwise expressly contemplated by the Debt Commitment Letter), (D) otherwise prevent or delay the Closing or (E) reasonably be expected to adversely impact the ability of Parent or Merger Sub to enforce its rights against the other parties to the Debt Commitment Letter or the definitive agreements with respect thereto; provided, further, that Parent and Merger Sub may amend, restate, replace, supplement or otherwise modify the Debt Commitment Letter (or any Alternative Financing) on one or more occasions to add additional arrangers, bookrunners, agents and lenders in accordance with the terms of the Debt Commitment Letter (but not to make any other changes other than to the extent otherwise permitted under this Section 6.11(a)).  For purposes of this Agreement, the definition of “Debt Commitment Letter” shall include any amendment, restatement, supplement or other modification or waiver thereto, or any replacement thereof, and the definition of “Debt Financing” shall include any Alternative Financing, in each case permitted under this Section 6.11(a) or clause (b) below.

included in the Fee Letter and other than on account of any Alternative Financing referred to in clause (a) above having been completed) other than due to the failure of a condition to the consummation of the Debt Financing resulting from a material breach of any representation, warranty, or covenant of the Company set forth in this Agreement or the failure of any condition set forth in Section 7.01 or Section 7.02 of this Agreement, each of Parent and Merger Sub shall use its reasonable best efforts to obtain any such portion from alternative debt or equity sources as promptly as practicable following the occurrence of such event in an amount that will still enable Parent and Merger Sub to pay the aggregate Merger Consideration and any other amounts required to be paid by Parent or Merger Sub in connection with the consummation of the transactions contemplated hereby to which it is a party and to pay all related fees and expenses of Parent and Merger Sub.

participating in reasonable and customary due diligence, in each case with or by the Financing Sources (or prospective lenders or investors in any Debt Financing), (B) furnishing Parent and the Financing Sources, as promptly as reasonably practicable, with the Required Information, (C) assisting Parent and the Financing Sources in the preparation of (I) customary offering documents, syndication documents and materials (including assistance in creating usual and customary  “public versions” of the foregoing), including confidential information memoranda, private placement memoranda, offering memoranda, lender and investor presentations, rating agency presentations, business and financial projections and similar documents and materials, in connection with any Debt Financing (all of the foregoing, collectively, the “Offering Documents”), including providing the “MD&A” and business description to be contained therein, and providing customary authorization and representation letters with respect thereto, and (II) materials for any Offering Documents, including business projections and financial statements (including assisting the Parent in preparing pro forma financial statements; provided that neither the Company nor any of its Subsidiaries or Representatives shall be responsible in any manner for any pro forma adjustments relating to proposed debt and equity capitalization that is required to be made to the historical information for such pro forma financial information) and identifying any portion thereof as containing material, non-public information, (D) reasonably cooperating with the marketing and syndication efforts of Parent, Merger Sub and any Financing Sources for any portion of any Debt Financing, including cooperation in connection with the obtainment of ratings, (E) using its reasonable best efforts to cause its current or former independent accountants to provide assistance and cooperation in any Debt Financing, including (I) participating in a reasonable number of drafting sessions and accounting due diligence sessions, (II) providing any necessary written consents to use their audit reports relating to the Company and to be named as an “Expert” in any document related to any Debt Financing and (III) providing any customary “comfort letters” (including customary negative assurance comfort, including change period comfort), (F) executing and delivering as of (but not before) the Closing Date definitive financing documents, including credit agreements, indentures, intercreditor agreements, pledge and security documents, and certificates (including borrowing base certificates), or other documents, to the extent reasonably requested by Parent and otherwise facilitating the granting or perfection of collateral to secure any Debt Financing, including delivery of certificates representing equity interests constituting collateral, intellectual property filings with respect to intellectual property constituting collateral and mortgages with respect to owned real property constituting collateral and obtaining releases of existing Liens, provided that the effectiveness of any definitive documentation executed by the Company or any of its Subsidiaries shall be subject to the consummation of the Merger, (G) furnishing Parent and any Financing Sources promptly, and in any event at least five (5) days prior to the Closing Date, with all documentation and other information required by any Governmental Entity with respect to any Debt Financing under applicable “know your customer” and anti-money laundering rules and regulations, including the PATRIOT Act, in each case, to the extent that such documentation and information has been reasonably requested in writing (which may be by e-mail) at least ten (10) days prior to the Closing Date, (H) assisting in the delivery of inventory appraisals and field audits and obtaining surveys and title insurance reasonably requested by Parent and (I) taking all corporate actions, subject to and only effective upon the occurrence of the Effective Time, reasonably requested by Parent to permit the consummation of any Debt Financing and to permit the proceeds thereof to be made available to the Surviving Company immediately after the Effective Time; provided that, notwithstanding anything in this Agreement to the contrary, (A)

neither the Company nor any of its Subsidiaries shall be required to take any action that would cause it to bear any out-of-pocket cost or expense (not otherwise subject to reimbursement) or to pay any commitment or other similar fee or make any other similar payment or incur any other monetary liability or provide or agree to provide any indemnity in connection with the Debt Financing or any of the foregoing, in each case, to the extent effective prior to the Effective Time, (B) neither the Company nor any of its Subsidiaries or Representatives shall be required to take any action under this Section 6.11 that would interfere unreasonably with the business or operations of the Company or its Subsidiaries and (C) neither the Company nor any of its Subsidiaries shall be required to take any action that will conflict with or violate their respective organizational documents or result in the contravention of any contract to which the Company or any of its Subsidiaries is a party that is material to the business of the Company and its Subsidiaries taken as a whole prior to the Effective Time (it being agreed, however, that the foregoing clauses (B) and (C) shall not apply to (and shall not in any manner affect) the Company's obligations hereunder with respect to the delivery of the Required Information or with respect to the other actions under this Section 6.11(d) that are usual and customary with respect to syndicated credit facilities or high yield offerings).  The Company hereby consents to the reasonable use of its and its Subsidiaries’ logos in connection with the marketing of any Debt Financing; provided that such logos are used solely in a manner that is not intended to, and is not reasonably likely to harm or disparage the Company or any of its Subsidiaries or the reputation or goodwill of the Company, its Subsidiaries and its or their respective marks, products, services, offerings or intellectual property rights.

such Non-Life Sciences Subsidiary’s obligations and liabilities thereunder; provided that, for the avoidance of doubt, if the Company complies with the requirements of this Section 6.13, but is unable to obtain any such release, such failure shall not be deemed to be a breach of this Section 6.13.

Closing) and Parent and Merger Sub shall have failed to consummate the Closing on the date the Closing is required to have occurred pursuant to Section 1.02;

directly to the stockholders of the Company generally and not publicly withdrawn prior to the Company Stockholders Meeting; (B) thereafter this Agreement is terminated pursuant to Section 8.01(b)(i), Section 8.01(b)(iii), Section 8.01(b)(iv) or Section 8.01(f); and (C) within 12 months of such termination the Company or any of its Subsidiaries shall have entered into an Alternative Acquisition Agreement with respect to, or shall have approved or recommended to the Company’s stockholders or otherwise not opposed, an Acquisition Proposal that is subsequently consummated; provided, however, that for purposes of this Section 8.03(b)(ii), the references to 20% in the definition of “Acquisition Proposal” shall be deemed to be references to 50%.

attorneys’ fees and expenses) in connection with such Action, together with interest on the amount of such payment from the date such payment was required to be made until the date of payment at a rate per annum equal to the prime interest rate published in The Wall Street Journal on the date such interest begins accruing.  Except with respect to any fraud or willful or intentional breach of this Agreement by Parent or Merger Sub, the parties agree that the payment of the Parent Termination Fee shall be the sole and exclusive remedy available to the Company with respect to this Agreement and the transactions contemplated hereby in the event any such payment becomes due and payable; provided, however, that the right of the Company to receive the Parent Termination Fee if the Company terminates this Agreement pursuant to Section 8.01(e) shall not affect the Company’s right to specific performance as provided herein prior to any termination of this Agreement. Upon payment of the Parent Termination Fee, Parent, Merger Sub, their Affiliates and their respective directors, officers, employees, stockholders and Representatives shall have no further liability to the Company under this Agreement.  In no event shall Parent be obligated to pay the Parent Termination Fee on more than one occasion.

the Company unless such approval is required by Applicable Law.  Any agreement on the part of a party to any such extension or waiver shall be valid only if set forth in an instrument in writing signed on behalf of such party.  The failure of any party to this Agreement to assert any of its rights under this Agreement or otherwise shall not constitute a waiver of such rights.

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prevent or otherwise affect a determination that the underlying cause of any such change or failure referred to therein (to the extent not otherwise falling within any of the exceptions provided by clauses (A) through (H) hereof) is, may be, contributed to or may contribute to, a Company Material Adverse Effect); provided further, however, that any effect, change, event or occurrence referred to in clauses (A), (B), (C), (E) or (F) may be taken into account in determining whether or not there has been or may be a Company Material Adverse Effect to the extent such effect, change, event, circumstance or occurrence has a material disproportionate adverse effect on the Company and the Non-Life Sciences Subsidiaries, taken as a whole, as compared to other participants in the industries in which the Company and its Subsidiaries operate.  The determination of “Company Material Adverse Effect” shall in all events not take into account all effects, changes, events, circumstances or occurrences with respect to the Life Sciences Business or any Life Sciences Assets or Life Sciences Liabilities to be transferred or assumed pursuant to the Life Sciences SAPA except to the extent, and only to the extent, that the Company or any Non-Life Sciences Subsidiary retains any liability or obligation, whether direct, indirect, contingent or otherwise, in respect thereof.

Oversight Board in AU 722, and (iv) the financial statements and other financial information included in the Required Information are sufficient to permit the underwriters, placement agents or initial purchasers to receive customary comfort letters, including customary negative assurance comfort, including with respect to change period comfort, and the Company’s independent accountants (and, if applicable, the Company’s or its Subsidiaries former independent accountants) are prepared to issue such comfort letters in the form of the drafts thereof approved or accepted by the underwriters, placement agents and initial purchasers of the applicable debt securities in order to consummate any offering of debt securities on any day of the Marketing Period or within three (3) Business Days thereafter.  Reference herein to the Company’s independent accountants shall be to Ernst & Young LLP or another independent registered public accounting firm of nationally recognized standing engaged by the Company to be its independent accountants.

with GAAP, (C) any Required Information would not be Compliant at any time during such eighteen (18) consecutive Business Day period (it being understood that if any Required Information provided at the initiation of the Marketing Period ceases to be Compliant at any time during such eighteen (18) consecutive Business Day period, then the Marketing Period shall be deemed not to have commenced), or (D) the Company shall have failed to file any annual, quarterly or periodic report with the SEC that was required to be filed by it with the SEC by the date required under the Exchange Act containing all of the financial information required to be contained therein, in which case the Marketing Period will not be eligible to commence until such reports have been filed; and provided further, that the Marketing Period shall end on any earlier date that is the date on which the entire Debt Financing has been consummated in accordance with its terms.

established in accordance with GAAP, (vi) deposits made in the ordinary course of business to secure payments of worker’s compensation, unemployment insurance or other types of social security benefits or the performance of bids, tenders, sales, contracts (other than for the repayment of borrowed money), public or statutory obligations, and surety, stay, appeal, customs or performance bonds, or similar obligations arising in each case in the ordinary course of business consistent with past practices, (vii) Liens in favor of customs and revenue authorities arising as a matter of law and in the ordinary course of business, consistent with past practices, to secure payment of customs duties in connection with the importation of goods, (viii) Liens resulting from securities laws, (ix) Liens incurred in the ordinary course of business, consistent with past practices, in connection with any purchase money security interests, equipment leases or similar financing arrangements, (x) licenses granted to third parties in the ordinary course of business consistent with past practices by the Company or its Subsidiaries, (xi) such other Liens or imperfections of title that are not material in amount and do not materially detract from the value of or materially impair the existing use of the property affected by such Lien or imperfection of title, (xii) Liens that are disclosed on the most recent consolidated balance sheet of the Company, or the notes thereto, included in the Company SEC Documents filed prior to the date hereof and (xiii) Liens that do not materially detract from the value of such property or interfere in any material respect with the use, operation or occupancy by the Company or any of its Subsidiaries of such property.

(40) days before the Closing Date and for the comparable quarter of the prior fiscal year; provided, however, that in each such case such consolidated balance sheets of the Company and such consolidated statements of operations, comprehensive income (loss), stockholders’ equity and cash flows of the Company shall include information necessary for Parent to prepare pro forma financial statements under and in accordance with Article 11 of Regulation S-X and the relevant SEC rules and regulations applicable thereto for Form S-1 registration statements, (ii) all information and data regarding the Business and the Company and its Subsidiaries (A) of the type and form required by Regulation S-X and Regulation S-K under the Securities Act for offerings of debt securities on a registration statement on Form S-l (or any successor form) under the Securities Act (other than (x) consolidating and other financial statements and data that would be required by Sections 3-10 and 3-16 of Regulation S-X under the Securities Act, and (y) any information and data required by Item 402 of Regulation S-K under the Securities Act and information regarding executive compensation and related party disclosure related to SEC Release Nos. 33-8732A, 34-54302A and IC-27444A) (but including financial statements and schedules or footnotes satisfying Item 3-10(g) and including qualitative and quantitative disclosure with respect to assets, liabilities, revenue, operating income and adjusted EBITDA customarily included in Rule 144A offerings of high yield debt securities) and as otherwise necessary for the Financing Sources to receive customary “comfort” (including customary negative assurance comfort, including with respect to change period comfort) from the Company’s independent accountants (and, if applicable, the Company’s and is Subsidiaries’ former independent accountants) and (B) of the type and form customarily included in Offering Documents used to syndicate credit facilities of the type to be included in the Debt Financing or in Offering Documents used in private placements of high yield debt securities under Rule 144A under the Securities Act (including as necessary to permit Parent to prepare the offering memorandum required by paragraph 8 of Annex E to the Debt Commitment Letter), in each case, assuming that such syndication of credit facilities and offering(s) of debt securities were consummated at the same time during the Company’s fiscal year as such syndication and offering(s) of debt securities will be made; and (iii) such other information and data reasonably required by the underwriters, placement agents and initial purchasers that is usual and customary with respect to syndicated credit facilities or high yield offerings; it being understood and agreed that the foregoing provisions of this definition shall not obligate the Company with respect to pro forma financial statements or projections beyond the requirements of Section 6.11(d)(ii)(C)(II) and clause (i) of this definition.

which entity such first Person is not otherwise prohibited contractually or by other legally binding authority from exercising control.

Applicable Law defined or referred to herein means such agreement, instrument or Applicable Law as from time to time amended, modified or supplemented, unless otherwise specifically indicated; (l) references to a Person are also to its permitted successors and assigns; and (m) unless otherwise specifically indicated, all references to “dollars” and “ $” will be deemed references to the lawful money of the United States of America.

benefit of, and be enforceable by, the parties hereto and their respective successors and permitted assigns.  Any purported assignment not permitted under this Section 9.09 shall be null and void.

Agreement) or the transactions contemplated by this Agreement may be made only against (and are those solely of) the entities that are expressly identified as parties to this Agreement in the Preamble to this Agreement.  Notwithstanding anything herein to the contrary, the Company agrees, on behalf of itself and its Affiliates and each of its and its Affiliates’ respective former, current or future general or limited partners, stockholders, managers, members, controlling persons, agents or Representatives (collectively, the “Company Parties”) that the Financing Sources and each of their respective Financing Related Parties shall be subject to no liability or claims to the Company Parties in connection with the Debt Financing or in any way relating to this Agreement or any of the transactions contemplated hereby or thereby, whether at law, in equity, in contract, in tort or otherwise.