ATMI, INC. NON-QUALIFIED STOCK OPTION AGREEMENT
Exhibit 10.21
Date of Grant:
ATMI, INC.
1. | Grant of Option. |
ATMI, INC., a Delaware corporation (the “Company”), hereby grants to (the
“Participant”), an option, pursuant to the Company’s ___Stock Plan (the “Plan”),
to purchase an aggregate of shares of Common Stock, $.01 par value (“Common
Stock”), of the Company at a price of per share, purchasable as set forth in and subject
to the terms and conditions of this option agreement (this “Agreement”) and the Plan. The
date of grant of this option is hereinafter referred to as the “date of grant” and the date ending
twelve months thereafter and each subsequent successive twelve-month period is hereinafter referred
to as the “first anniversary date,” “second anniversary date,” “third anniversary date,” etc.
2. | Incorporation of Plan. |
All terms, conditions and restrictions of the Plan are incorporated herein and made part
hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan
and this Agreement, the terms and conditions of the Plan, as interpreted by the Board of Directors
of the Company or the Compensation Committee of the Board of Directors, shall govern. Except as
otherwise provided herein, all capitalized terms used herein but not otherwise defined shall have
the respective meanings given to such terms in the Plan.
3. | Exercise of Option and Provisions for Termination. |
(a) Vesting. Except as otherwise provided herein or in the Plan, and subject to the right of
cumulation provided herein, this option may be exercised, prior to the tenth anniversary date, as
to not more than the following number of shares covered by this option during the respective
periods set forth below:
No shares from and after the date of grant and prior to the first anniversary date;
___shares from and after the first anniversary date and prior to the second
anniversary date;
___shares from and after the second anniversary date and prior to the third
anniversary date;
___shares from and after the third anniversary date and prior to the fourth
anniversary date;
___shares from and after the fourth anniversary date.
The right of exercise provided herein shall be cumulative so that if this option is not
exercised to the maximum extent permissible during any such period it shall be exercisable, in
whole or in part, with respect to all shares not so purchased at any time during any
subsequent period prior to the expiration or termination of this option. This option may not be
exercised at any time after the tenth anniversary date.
(b) Method of Exercise. Subject to the conditions hereof, this option shall be exercisable
from time to time by the Participant giving written notice of exercise to the Company, specifying
the number of shares to be purchased and the purchase price to be paid therefor and accompanied by
payment in accordance with Section 4 hereof. Such exercise shall be effective upon receipt by the
Treasurer of the Company of the written notice together with the required payment. The Participant
shall be entitled from time to time to purchase less than the number of shares covered hereby,
provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) Termination of Employment. Except as provided in Section 3(f) below, if the Participant’s
employment with the Company or one of its subsidiaries terminates for any reason, other than
retirement, change of control, total disability or death, this option shall immediately terminate;
provided, however, that any portion of this option which was otherwise exercisable on the date of
such termination of employment may be exercised within the three-month period following the date of
termination, but in no event after the tenth anniversary date. If the Participant dies during such
three-month period, any portion of this option that was exercisable by the Participant on the date
of his or her death shall be exercisable by the Participant’s personal representatives, heirs or
legatees for the remainder of such three-month period.
(d) Death. If the Participant dies while an employee or otherwise in the service of the
Company or any subsidiary of the Company, any portion of this option that was exercisable by the
Participant on the date of death shall be exercisable by the Participant’s personal
representatives, heirs or legatees until the tenth anniversary date.
(e) Retirement/Disability. In the event the Participant’s employment with the Company or one
of its subsidiaries terminates by reason of the Participant’s (i) retirement or (ii) total
disability, any portion of this option that was exercisable by the Participant on the date of such
termination shall be exercisable by the Participant at any time prior to the tenth anniversary
date. If the Participant dies before the tenth anniversary date, this option shall be exercisable
by the Participant’s personal representatives, heirs or legatees until the tenth anniversary date,
to the same extent that the Participant could have exercised this option on the date of his or her
death. For purposes of this Section 3(e), “retirement” shall mean the Participant’s voluntary
termination of employment with the Company or any subsidiary of the Company at age 62 or above and
after a minimum of five years of service as an employee of the Company or any of its subsidiaries,
and “total disability” shall mean a disability which, in the reasonable opinion of the Board of
Directors, renders the Participant unable or incompetent to carry out the Participant’s duties,
responsibilities and assignments for a period of ninety (90) consecutive days.
(f) Voluntary Termination. In the event of the Participant’s voluntary termination of
employment with the Company or any subsidiary of the Company, other than as a result of retirement
or total disability, the Board of Directors may, by giving written notice to the Participant,
provide that any portion of this option that was otherwise exercisable on the date of termination
of the Participant’s employment may be exercised within a one year period
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following the date on which the Participant ceased to be so employed as set forth in written
notice to the Participant, but in no event after the tenth anniversary date. If the Participant
dies during such period, this option shall be exercisable by the Participant’s personal
representatives, heirs or legatees, to the same extent that the Participant could have exercised
this option on the date of his or her death. This option or any unexercised portion hereof shall
terminate unless so exercised prior to the expiration of ten years from the date of its grant. In
the event that a Participant ceases to be employed by the Company or a Company subsidiary,
incurring a termination of employment, and immediately is engaged by the Company or a Company
subsidiary as a consultant, any portion of this option that was not exercisable by the Participant
on the date of such termination shall immediately terminate on the date of the termination of
employment and any portion of this option that was exercisable by the Participant on the date of
such termination shall remain exercisable until the date determined under Section 3(c), (d), (e) or
(g) hereof, as if the Participant did not incur a termination of employment until the Participant
ceases to be a consultant.
(g) Change in Control. In the event the Participant’s employment with the Company or one of
the Company’s subsidiaries terminates by reason of a change of control, any portion of this option
that was exercisable by the Participant on the date of such change of control shall be exercisable
by the Participant at any time until the date one year after such change of control, but in no
event after the tenth anniversary date. If the Participant dies during such one-year period, this
option shall be exercisable by the Participant’s personal representatives, heirs or legatees for
the remainder of the one-year period, to the same extent that the Participant could have exercised
this option on the date of his or her death. The Participant’s employment will have terminated by
reason of the change of control if (i) the Participant continues to be engaged as an employee or
consultant with a Company subsidiary after the Company ceases to have effective voting control of
such subsidiary, or (ii) the Participant ceases to be employed or engaged as a consultant by the
Company or a Company subsidiary in connection with the sale or other disposition by the Company of
all or substantially all of the assets of a component of the Company or a Company subsidiary,
whether such component is a subsidiary, unit, work location, line of business or otherwise. The
Committee, in its sole discretion, shall determine whether a Participant’s termination of
employment is by reason of a change of control.
(h) Termination Date. For purposes of this Agreement, the Participant shall be deemed to have
a terminated employment or incurred a termination of employment upon (i) the date the Participant
ceases to be employed by, or to provide consulting services for, the Company, any Company
subsidiary, or any corporation (or any of its subsidiaries) which assumes the Participant’s award
in a transaction to which section 424(a) of the Code applies; or (ii) the date the Participant
ceases to be a Board member, provided, however, that if the Participant (x), at the time of
reference, is both an employee or consultant and a Board member, or (y) ceases to be engaged as an
employee, consultant or Board member and immediately is engaged in another of such relationships
with the Company or any Company subsidiary (other than an employee who becomes a consultant), the
Participant shall not be deemed to have a “termination of employment” until the last of the dates
determined pursuant to subparagraphs (i) and (ii) above. The Committee, in its discretion, may
determine whether any leave of absence constitutes a termination of employment for purposes of this
Agreement and the impact, if any, of any such leave of absence on this option.
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4. | Payment of Purchase Price. |
(a) Payment of the purchase price for shares purchased upon exercise of this option shall be
made by delivery to the Company of cash or check payable to the order of the Company in an amount
equal to the purchase price of such shares, or, if the Participant elects and the Company permits,
by delivery of shares of Common Stock of the Company having a fair market value equal in amount to
the purchase price of such shares.
(b) For the purposes hereof, the fair market value of any share of the Company’s Common Stock
to be delivered to the Company in exercise of this option shall be determined in good faith by the
Board of Directors of the Company, in accordance with the terms of the Plan.
(c) If the Participant elects to exercise options by delivery of shares of Common Stock of the
Company, the certificate or certificates representing the shares of Common Stock of the Company to
be delivered shall be duly executed in blank by the Participant or shall be accompanied by a stock
power duly executed in blank suitable for purposes of transferring such shares to the Company.
Fractional shares of Common Stock of the Company will not be accepted in payment of the purchase
price of shares acquired upon exercise of this option.
5. | Delivery of Shares. |
The Company shall, upon payment of the purchase price for the number of shares purchased and
paid for, make prompt delivery of such shares to the Participant, provided that if any law or
regulation requires the Company to take any action with respect to such shares before the issuance
thereof, then the date of delivery of such shares shall be extended for the period necessary to
complete such action. No shares shall be issued and delivered upon exercise of any option unless
and until, in the opinion of counsel for the Company, any applicable registration requirements of
the Securities Act of 1933, any applicable listing requirements of any national securities exchange
on which stock of the same class is then listed, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully
complied with.
6. | Non-transferability of Option. |
Except as provided in Sections 3(c), 3(d), 3(e), 3(f) and 3(g) hereof, this option is personal
and no rights granted hereunder shall be transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this option or of such rights contrary to the provisions hereof, or upon the
levy of any attachment or similar process upon this option or such rights, this option and such
rights shall become null and void.
7. | No Special Employment Rights. |
Nothing contained in the Plan or this Agreement shall be construed or deemed by any person
under any circumstances to bind the Company or any of its subsidiaries to continue the employment
or the service of the Participant for the period within which this option may be
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exercised or prevent the Company or any of its subsidiaries from changing the terms of
employment or service of the Participant. However, during the period of the Participant’s
employment, the Participant shall render diligently and faithfully the services which are assigned
to the Participant from time to time by the Board of Directors or by the executive officers of the
Company and its subsidiaries and shall at no time take any action which directly or indirectly
would be inconsistent with the best interests of the Company or of its subsidiaries.
8. | Rights as a Stockholder. |
The Participant shall have no rights as a stockholder with respect to any shares which may be
purchased by exercise of this option unless and until a certificate or certificates representing
such shares are duly issued and delivered to the Participant. Except as otherwise expressly
provided in the Plan, no adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
9. | Recapitalization. |
In the event that dividends are payable in shares of Common Stock or in the event there are
splits, sub-divisions or combinations of shares of Common Stock subsequent to the date of grant,
the number of shares subject to this option shall be increased or decreased proportionately, as the
case may be, and the number of shares deliverable upon the exercise thereafter of this option shall
be increased or decreased proportionately, as the case may be, without change in the aggregate
purchase price.
10. | Reorganization. |
In case the Company is merged or consolidated with another corporation and the Company is not
the surviving corporation, or in case the property or stock of the Company is acquired by any other
corporation, or in case of a reorganization or liquidation of the Company, prior to the termination
or expiration of this option, this option shall be treated in the manner set forth in Section 10 of
the Plan.
11. | Withholding Taxes. |
Whenever shares are to be issued upon exercise of this option, the Company shall have the right to
require the Participant to remit to the Company an amount sufficient to satisfy any federal, state
and local withholding tax requirement prior to the delivery of any certificate or certificates for
such shares.
12. | Miscellaneous. |
(a) Except as provided herein, this Agreement may not be amended or otherwise modified unless
evidenced in writing and signed by the Company and the Participant.
(b) All notices under this Agreement shall be mailed or delivered by hand to the parties at
their respective addresses set forth beneath their names below or at such other address as may be
designated in writing by either of the parties to one another.
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(c) This Agreement shall be governed by and construed in accordance with the laws of the State
of Delaware.
(d) No delay or omission to exercise any right, power or remedy accruing to any party hereto
upon any breach or default of any party under this Agreement, shall impair any such right, power or
remedy of such party, nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party or any provisions or conditions of this Agreement, must be in a writing
signed by such party and shall be effective only to the extent specifically set forth in such
writing.
(e) This Agreement contains the entire understanding of the parties with respect to its
subject matter. There are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than those expressly set
forth herein. This Agreement, including, without limitation, the Plan, supersedes all prior
agreements and understandings between the parties with respect to its subject matter.
(f) This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same instrument.
(g) The Participant hereby acknowledges receipt of a copy of the Plan. The Participant hereby
acknowledges that all decisions, determinations and interpretations of the Board of Directors and
the Compensation Committee in respect of the Plan, this Agreement and the option shall be final and
conclusive.
IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly
authorized officer, and the Participant has hereunto signed this Agreement on his own behalf,
thereby representing that he has carefully read and understands this Agreement and the Plan as of
the day and year first written above.
ATMI, INC. |
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By: | ||||
Name: | ||||
Title: | ||||
[Participant] |
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