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EXHIBIT B
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of October 10, 1997 (the
"Agreement") is entered into by and among ATMI, INC., a Delaware corporation
(the "Company"), and THE STOCKHOLDERS LISTED ON SCHEDULE 1 HERETO (the
"Stockholders").
1. Introduction. The Company, Advanced Technology Materials, Inc.,
Alamo Merger, Inc. and the ADCS Group (as defined in the Reorganization
Agreement which is defined below), entered into an Agreement and Plan of Merger
and Exchange dated April 7, 1997 (the "Reorganization Agreement"). At the
Closing, as defined in the Reorganization Agreement, the Stockholders received
an aggregate of 5,468,747 shares of common stock of the Company, par value $.01
per share (the "Company Common Stock"), in exchange for all of their Interests
in the ADCS Group, all in accordance with and subject to the provisions of the
Reorganization Agreement. In satisfaction of one of the conditions to Closing
set forth in the Reorganization Agreement, the Company and the Stockholders
desire to provide hereunder for the registration of the Company Common Stock
under the Securities Act upon the terms and conditions set forth herein.
2. Certain Definitions. As used herein, unless the context clearly
requires otherwise, the following terms have the meanings set forth below:
Commission: The Securities and Exchange Commission or any
other federal agency at the time administering the Securities Act.
Exchange Act: The Securities Exchange Act of 1934, as amended,
or any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time. Reference
to a particular section of the Exchange Act shall include a reference to the
comparable section, if any, of any such successor federal statute.
Holder: Each initial holder of Registrable Securities and each
assignee or transferee thereof which is assigned or transferred at least 20,000
shares of the Company Common Stock (as adjusted for stock dividends, stock
splits, combinations, recapitalizations and similar events).
Person: An individual, a corporation, an association, a
general, limited or limited liability partnership, a limited liability company,
an unincorporated organization, a business, a government or a political
subdivision thereof or a governmental agency.
Pooling Period: The period beginning at the Effective
Time of the Merger and running through such time as financial results covering
at least 30 days of
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combined operations of the Company and the ADCS Group (on a consolidated basis)
shall have been published by the Company within the meaning of Section 201.01 of
the Commission's Codification of Financial Reporting Policies, which the Company
shall file as promptly as practicable following the Closing.
Registrable Securities: (a) Any shares of the Company Common
Stock received by the Stockholders under the Reorganization Agreement and (b)
any securities issued or issuable with respect to such shares of the Company
Common Stock by way of a stock dividend or stock split or in connection with a
combination or reclassification of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. Notwithstanding the
foregoing, any particular Registrable Securities shall cease to be Registrable
Securities when (x) a registration statement with respect to the sale of such
securities shall have become effective under the Securities Act and such
securities shall have been disposed of in accordance with such registration
statement, or (y) they shall have been sold pursuant to Rule 144 (or any
successor provision) under the Securities Act.
Registration Expenses: As defined in Section 8 hereof.
Securities Act: The Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such successor federal statute.
Selling Expenses: As defined in Section 8 hereof.
All other capitalized terms not otherwise defined herein shall
carry the same definition as under the Reorganization Agreement.
3. Required Registration.
(a) Intentionally omitted.
(b) If the Registrable Securities were issued to the Stockholders
pursuant to a registration statement under the Securities Act, then, from the
first anniversary of the Closing Date until the third anniversary of the Closing
Date (as may be extended pursuant to Section 3(c) below), Stockholders holding
at least 70% of the Registrable Securities initially issued pursuant to the
Reorganization Agreement may request the Company to register up to 50% of the
Registrable Securities issued to such Stockholders pursuant to the
Reorganization Agreement on Form S-3 (or any successor form) or, if such form is
unavailable to the Company, on such other form as is available to the Company;
provided, however, that each such request relates to the registration of shares
having a market value of at least $5,000,000 if registered on Form S-1 or
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$1,000,000 if registered on Form S-3; provided, further, however, that the
maximum number of Registrable Securities which the Company is obligated to
register for a Stockholder under this Section 3(b) shall be reduced to the
extent that such Stockholder has sold Registrable Securities pursuant to Rule
145(d) or otherwise.
(c) No request made under Section 3(b) shall require a registration
statement requested therein to become effective (i) prior to the effective date
of a registration statement filed by the Company covering a firm commitment
underwritten public offering of the Company Common Stock being sold for the
account of the Company if the Company shall have given written notice in the
manner provided in Section 4 below of such registration statement to the
Stockholders prior to the Company's receipt of a demand notice from the Holders
pursuant to this Section 3 and shall have thereafter pursued the preparation,
filing and effectiveness of such registration statement with diligence (it being
understood by such Stockholders that advance notice of the pendency of such
registration may be material, non-public information); or (ii) if the Company
shall furnish to the Stockholders a certificate signed by the President of the
Company and prepared in good faith stating that, in the good faith judgment of
the Board of Directors of the Company, it would be seriously detrimental to the
Company and its stockholders for such registration to be effected at such time,
in which event the Company shall have the right to defer the filing of the
registration statement for a period of not more than sixty (60) days after
receipt of the request for registration, which right may not be exercised by the
Company on more than one occasion during any period of 12 consecutive months. If
the right of the Stockholders to request a registration is so suspended by the
Company pursuant to clause (i) or (ii) above, then the period specified in
Section 3(b) shall be increased by one day for each day such right is suspended.
(d) Following receipt of any notice under this Section 3, the Company
shall immediately notify all Stockholders from whom notice has not been received
and shall use its reasonable best efforts to register under the Securities Act,
for public sale in accordance with the method of disposition specified in such
notice from requesting Stockholders, the number of Registrable Securities
specified in such notice subject to the limitations specified in this Section 3
(and in all notices received by the Company from other Stockholders within 30
days after the giving of such notice by the Company). If such method of
disposition shall be an underwritten public offering, the Company may designate
the managing underwriter of such offering, subject to the approval of the
Stockholders holding a majority of the Registrable Securities to be sold in such
offering, which approval shall not be unreasonably withheld or delayed. The
Company shall be obligated to register Registrable Securities pursuant to
Section 3(b) on one occasion only; provided, however, that such obligation shall
be deemed satisfied only when a registration statement, which covers all
Registrable Securities specified in notices received as aforesaid and with
respect to which the request for registration has not been withdrawn and
provides for sale of such shares in accordance with the method of disposition
specified by the requesting Stockholders, shall have become effective and, if
such method of disposition is a firm commitment underwritten public offering,
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all such shares shall have been sold pursuant thereto; provided further, if, on
any one occasion, the Stockholders exercise a demand right and subsequently
inform the Company in writing that (i) they desire to withdraw such registration
or (ii) they are unable to sell in excess of 50% of the Registrable Shares
covered by such registration statement due to a deterioration in market
conditions or other bona fide reason and the Stockholders reimburse the Company
for all Registration Expenses incurred by the Company in connection with such
terminated registration, then the Stockholders shall be deemed not to have
exercised the demand right under this Agreement and shall be permitted to
exercise such right in accordance with the terms of Section 3(b) of this
Agreement on one additional occasion; and provided, further, that if such
withdrawal or inability to sell in excess of 50% of such shares is due to the
discovery by the Stockholders of a material adverse change in the condition,
business or prospects of the Company as determined by the managing
underwriter(s) of the related offering, if any, or by Stockholders holding at
least 70% of the Registrable Securities proposed to be included in the
registration, if there shall be no underwriters, from that known to any of the
Stockholders at the time of their request and the Stockholders shall have
withdrawn such request or terminated sales promptly following the disclosure by
the Company of such material adverse change, then the Stockholders shall not be
required to pay such expenses and shall retain their right to again request such
registration in the future.
(e) The Company shall be entitled, upon written notice to the Holders
within 30 days after receipt of their request to effect a registration pursuant
to this Section 3, to include in any registration statement referred to in this
Section 3, for sale in accordance with the method of disposition specified by
the requesting Stockholders, shares of Company Common Stock to be sold by the
Company for its own account, except as and to the extent that, in the opinion of
the managing underwriter (if such method of disposition shall be an underwritten
public offering), such inclusion would adversely affect the marketing of the
Registrable Securities to be sold. In the event the Company exercises such right
and includes shares in such registration statement equaling more than 50% of the
shares included in such registration, such registration shall be deemed to be
Company-initiated registration and the Holders shall not be deemed to have
exercised a demand right under Section 3.
4. Piggy-Back Registration.
(a) Notice. If the Company at any time after the expiration of the
Pooling Period proposes to register, other than pursuant to Section 3 hereof,
any of its securities under the Securities Act for sale to the public, whether
for its own account or for the account of securityholders other than the Holders
or both (except for registrations on Form S-4 or S-8 or another form not
available for registering the Registrable Securities for sale to the public),
each such time it will give written notice to all Holders of its intention to do
so and of the Holders' rights under this Section 4. Upon the written request of
any such Holder, received by the Company within 30 days after the giving of any
such notice by the Company, to register any of the Holder's Registrable
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Securities, the Company will cause the Registrable Securities as to which
registration shall have been so requested to be included in the securities to be
covered by the registration statement proposed to be filed by the Company, all
to the extent requisite to permit the sale or other disposition by the Holder
(in accordance with the Holder's written request) of such Registrable Securities
so registered.
(b) Underwriting. If (i) a registration described in this Section 4
involves an underwritten offering of the securities so being registered to be
distributed (on a firm commitment basis ) by or through one or more
underwriters, (ii) the Registrable Securities so requested to be registered for
sale for the account of the Holders are also to be included in such underwritten
offering, and (iii) the managing underwriter of such underwritten offering shall
inform the Company and the Holders by letter of its belief that the distribution
of all or a specified number of the Registrable Securities requested to be
included concurrently with the securities being distributed by such underwriters
would interfere with the successful marketing of the securities being
distributed by such underwriters, then the Company may, upon written notice to
all Holders, reduce (if and to the extent stated by such managing underwriter to
be necessary to eliminate such effect) the number of the Registrable Securities
requested to be included so that the resultant aggregate number of the
Registrable Securities requested to be included that will be included in such
registration shall be equal to the number of shares stated in such managing
underwriter's letter; provided, however, that the priority in such registration
shall be as follows: (i) first, securities offered for the account of the
Company or, if such registration is for a securityholder exercising a
contractual request for registration, then securities offered for the account of
such securityholder, (ii) second, the Registrable Securities and the securities
of other securityholders, if any, who are entitled by contract to have such
securities included in such registration, pro rata based on the number of shares
of Company Common Stock then held, and (iii) third, all other securities
proposed to be registered.
(c) Other Matters. Notwithstanding the foregoing provisions, the
Company may withdraw or delay any registration statement referred to in this
Section 4 without thereby incurring any liability to the Holders. Any such
withdrawal or delay shall be without prejudice to the rights of the Holders
under Section 3 hereof. No registration effected under this Section 4 shall
relieve the Company of its obligations under Section 3 hereof.
5. Termination of the Company's Registration Obligations. The Company's
registration obligations under (i) Section 3 shall terminate three years after
the Closing Date (subject to extension pursuant to Section 3(c) and the
penultimate paragraph of Section 6) and (ii) Section 4 shall terminate five
years after the Closing Date. In addition, the Company shall not be required to
effect a registration pursuant to Section 3 or 4 hereof for any Holder desiring
to participate in such registration or to maintain the effectiveness of any
registration statement for any Holder who, in any such case, may then dispose of
all of such Holder's shares of Registrable Securities pursuant to Rule 144
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within the three-month period following such proposed registration; provided,
however, no termination of the Company's registration obligations shall be
deemed to affect the parties' obligations under Sections 8, 9 and 10 of this
Agreement, which Sections shall survive the termination of such registration
obligations.
6. Registration Procedures. If and whenever the Company is required by
the provisions of Section 3 or 4 to effect the registration of any Registrable
Securities under the Securities Act, the Company shall, as expeditiously as
possible and until the Company's registration obligations terminate pursuant to
Section 5 hereof:
(a) prepare and file with the Commission the requisite registration
statement to effect such registration and thereafter use diligent efforts to
cause each such registration statement to become and remain effective until the
earlier of (A) the date on which all of the Registrable Securities covered by
such registration statement have been disposed of by the Holder or Holders
thereof in accordance with the intended methods of disposition thereof described
in the registration statement (each Holder or Holders thereof hereby agreeing to
inform the Company upon the completion of the disposition of their respective
Registrable Securities); or (B) the expiration of the following periods: (i) in
the case of any Holder, the period after which the Company's registration
obligations terminate as to such Holder pursuant to Section 5 hereof; and (ii)
in the case of a registration pursuant to Section 4 hereof, 180 days after the
effective date of such registration statement (as the periods specified in
clauses (i) and (ii) above may be extended pursuant to the penultimate paragraph
of this Section 6);
(b) prepare and file with the Commission such amendments and
supplements to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective for
the applicable period specified in Section 6(a) hereof and to comply during such
period with the obligations of a registrant under the Securities Act (including,
without limitation, provisions relating to the disposition of all securities
covered by such registration statement in accordance with the intended methods
of disposition by the Holders set forth in such registration statement);
(c) furnish to each Holder of Registrable Securities covered by such
registration statement and each underwriter thereof, if any, such number of
conformed copies of such registration statement and of each such amendment and
supplement thereto (in each case including all exhibits), such number of copies
of the prospectus contained in such registration statement (including each
preliminary prospectus and any summary prospectus) and of any other prospectus
filed under Rule 424 under the Securities Act, and such other documents, as such
Holder and underwriter may reasonably request in order to facilitate the public
sale or other disposition of such Registrable Securities;
(d) use diligent efforts to register or qualify all Registrable
Securities covered by such registration statement under such other securities
laws or blue sky laws of such jurisdictions as any Holder thereof and any
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underwriter thereof shall reasonably request, and to keep such registrations or
qualifications in effect for so long as such registration statement remains in
effect, and take any other action which may be reasonably necessary or advisable
to enable such Holder and underwriter to consummate the disposition in such
jurisdictions of the Registrable Securities owned by such Holder, except that
the Company shall not for any such purpose be required to qualify generally to
do business as a foreign corporation in any jurisdiction wherein it would not
but for the requirements of this Section 6(d) be obligated to be so qualified or
to consent to general service of process in any such jurisdiction (unless the
Company is subject to service in such jurisdiction and except as may be required
by the Securities Act);
(e) upon request, furnish each Holder of Registrable Securities a
signed counterpart, addressed to such Holder, of an opinion of counsel for the
Company, dated the effective date of such registration statement (or, if such
registration statement includes an underwritten public offering, dated the date
of closing under the underwriting agreement), with opinions of issuer's counsel
with respect to corporate and securities and patent issues as customarily
delivered in connection with public offerings;
(f) promptly notify each Holder of Registrable Securities covered by
such registration statement and each underwriter thereof, if any, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon the Company's discovery that, or upon the happening of any
event of which the Company has knowledge as a result of which, the prospectus
included in such registration statement, as then in effect, includes an untrue
statement of a material fact or omits to state any material fact required to be
stated therein or necessary to make the statements therein not misleading in the
light of the circumstances then existing, and at the request of any such Holder
or underwriter promptly prepare and furnish to such Holder or underwriter, if
any, a reasonable number of copies of a prospectus supplemented or amended so
that, as thereafter delivered to the purchasers of such Registrable Securities,
such prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing;
(g) otherwise use diligent efforts to comply with all applicable rules
and regulations of the Commission, and make generally available (within the
meaning of Section 11(a) of the Securities Act and the regulations thereunder)
to its securityholders, as soon as reasonably practicable, an earnings statement
covering a period of at least twelve months, beginning with the first month of
the first fiscal quarter after the effective date of such registration
statement, which earnings statement shall satisfy the provisions of Section
11(a) of the Securities Act and the regulations thereunder;
(h) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from and
after a date not later than the effective date of such registration statement;
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(i) use diligent efforts to list all Company Common Stock covered by
such registration statement on each securities exchange on which any of the
Company Common Stock is then listed or, if the Company Common Stock is not then
listed on any national securities exchange but is included in Nasdaq or the
Nasdaq National Market, use diligent efforts to have such Company Common Stock
included in Nasdaq or the Nasdaq National Market, as the case may be; and
(j) in connection with each such registration, give the Holders of
Registrable Securities to be registered therein, their underwriters, if any, and
up to one designated counsel and one designated accounting firm to represent the
interests of such Holders, at the expense of such Holders, the reasonable
opportunity to participate in the preparation prior to filing of the related
registration statement, each prospectus included therein or filed with the
Commission, and each amendment thereof or supplement thereto;
(k) upon receipt by the Company of reasonable confidentiality
agreements, make available for inspection by any underwriter participating in
any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company, and
cause the Company's officers, directors, employees and independent accountants
to be available on a reasonable basis and cooperate with such parties' "due
diligence" and to supply all information reasonably requested by any such
underwriter, attorney, accountant or agent in connection with such registration
statement, provided that the Company may refrain from disclosing any proprietary
or other information that is not material to the Company's financial condition
or results of operations; and
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification of
any Company Common Stock included in such registration statement for sale in any
jurisdiction, the Company will use diligent efforts promptly to obtain the
withdrawal of such order.
The Holders agree that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in Section 6(f) hereof, the
Holders will forthwith discontinue their disposition of Registrable Securities
pursuant to the registration statement relating to such Registrable Securities
until the Holders' receipt of the copies of the supplemented or amended
prospectus contemplated by Section 6(f) hereof and, if so directed by the
Company, will deliver to the Company (at the Company's expense) all copies,
other than permanent file copies, then in the Holders' possession of the
prospectus relating to such Registrable Securities current at the time of
receipt of such notice. In the event the Company shall give any such notice, the
three-year and 180-day periods referred to in Sections 5 and 6(a) hereof,
respectively, shall be extended by the length of the period from and including
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the date when each Holder of any Registrable Securities covered by such
registration statement shall have received such notice to the date on which each
such Holder has received the copies of the supplemented or amended prospectus
contemplated by Section 6(f) hereof.
In connection with each such registration, each Holder of Registrable
Securities to be named in the registration statement shall furnish to the
Company such information regarding such Holder and the proposed distribution of
such Registrable Securities as the Company may from time to time reasonably
request in writing, and the delivery of such information shall be a condition
precedent to the obligation of the Company to file any registration statement.
7. Underwritten Offerings.
(a) Underwritten Offerings Requested by Holders. If requested by the
underwriters for any underwritten offering by a Holder or Holders pursuant to a
registration requested under Section 3 hereof, the Company will enter into an
underwriting agreement with such underwriters for such offering, such agreement
to be reasonably satisfactory in substance and form to the Company, such Holder
or Holders and the underwriters, and to contain such representations and
warranties by the Company for the benefit of the underwriters and the Holders
and such other terms as are customarily contained in an underwriting agreement
with respect to such an offering, including, without limitation, representations
and warranties by the Company to the underwriters, provisions regarding the
delivery of opinions of counsel, a "cold comfort" letter and updates thereof and
other closing certificates and documents, in each case as customarily included
in underwritten public offerings, and indemnities substantially to the effect
and to the extent provided in Section 9 hereof. Such Holder or Holders will
cooperate with the Company in the negotiation of the underwriting agreement and
will give consideration to the reasonable suggestions of the Company regarding
the form thereof; provided, however, that nothing herein contained shall
diminish the foregoing obligations of the Company. Such Holder or Holders of
Registrable Securities to be distributed by such underwriters shall be parties
to such underwriting agreement, which may contain representations and warranties
of the Holders for the benefit of the underwriters and the Company as are usual
and customary and may require that any or all of the conditions precedent to the
obligations of such underwriters under such underwriting agreement be conditions
precedent to the obligations of such Holder or Holders.
(b) Underwritten Piggy-Back Offerings. The Holder or Holders of
Registrable Securities to be distributed by an underwritten offering described
in Section 4 hereof shall be parties to the underwriting agreement between the
Company and such underwriters and may require that any or all of the conditions
precedent to the obligations of such underwriters under such underwriting
agreement be conditions precedent to the obligations of such Holder or Holders.
No such Holder shall be required to make any representations or warranties to or
agreements with the Company or the underwriters other than representations,
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warranties or agreements regarding such Holder, such Holder's Registrable
Securities and such Holder's intended method of distribution customarily given
to underwriters and any other representation required by law.
8. Expenses. All expenses incurred by the Company in complying with
Sections 3, 4, 6 and 7 hereof, including, without limitation, all registration
and filing fees, printing expenses, fees and disbursements of counsel and
independent public accountants for the Company, reasonable fees and expenses of
one counsel for the holders of Registrable Securities participating in such
registration (not to exceed $25,000 for each registration pursuant to Section 4
or Section 3(b) hereof), fees and expenses incurred in connection with complying
with state securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., fees of transfer agents and registrars, and costs of
insurance, but excluding any Selling Expenses, are herein called "Registration
Expenses." All underwriting discounts, brokerage fees and selling commissions
applicable to the sale of Registrable Securities by a Holder or Holders are
herein called "Selling Expenses."
The Company will pay all Registration Expenses in connection with any
registration pursuant to this Agreement. All Selling Expenses in connection with
each such registration shall be borne by the participating Holders in proportion
to the number of shares of Registrable Securities sold by each, or as such
Holders may otherwise agree.
9. Indemnification.
(a) Indemnification by the Company. In the event of any registration,
qualification or compliance effected pursuant to Sections 3 or 4 hereof, the
Company shall indemnify and hold harmless the Holder of any Registrable
Securities covered by such registration statement, its directors and officers
and affiliates, if any, each underwriter of such Registrable Securities
thereunder, if any, each broker, dealer, or similar person acting on behalf of
any such Holder, and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act (each a "Company
Indemnitee" and collectively the "Company Indemnitees"), in each case, against
any losses, claims, damages or liabilities, joint or several, to which such
Company Indemnitee may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon any breach of any representation, warranty, agreement or
covenant of the Company contained in the underwriting agreement covering the
public offering of such Registrable Securities or untrue statement or alleged
untrue statement of any material fact contained in any registration statement
under which such Registrable Securities were registered under the Securities Act
pursuant to Sections 3 or 4, any preliminary prospectus, final prospectus or
summary prospectus contained therein, or any amendment or supplement thereto, or
any other document incident to any such registration, qualification or
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compliance, or any omission or alleged omission to state therein a material fact
required to be stated therein or necessary to make the statements therein not
misleading, or any violation by the Company of the Securities Act or any rule or
regulation thereunder applicable to the Company and relating to action or
inaction required of the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse such Company
Indemnitee for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be liable in
any such case if and to the extent that any such loss, claim, damage, liability
(or action or proceeding in respect thereof) or expense arises out of or is
based upon an untrue statement or alleged untrue statement or omission or
alleged omission made in such document in reliance upon and in conformity with
written information furnished to the Company by such Company Indemnitee,
specifically for use in such document; and provided further, that the foregoing
indemnity agreement is subject to the condition that, insofar as it relates to
any such untrue statement or alleged untrue statement or omission or alleged
omission made in the preliminary prospectus but eliminated or remedied in the
amended prospectus on file with the Commission at the time the registration
statement becomes effective or in the amended prospectus filed with the
Commission pursuant to Rule 424(b) or in the prospectus subject to completion
and term sheet under Rule 434 of the Securities Act, which together meet the
requirements of Section 10(a) of the Securities Act (the "Final Prospectus"),
such indemnity agreement shall not inure to the benefit of any such seller, any
such underwriter or any such controlling person, if a copy of the Final
Prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is required
by the Securities Act, but only if the Company had previously furnished a
sufficient number of copies of the Final Prospectus to such seller for
distribution to any underwriter or controlling person. Such indemnity shall
remain in full force and effect regardless of any investigation made by or on
behalf of such Holder, director, officer, underwriter or controlling person,
shall survive the transfer of such securities by any Holder or underwriter, and
shall be in addition to any liability which the Company may otherwise have.
(b) Indemnification by the Holders. In the event of any registration,
qualification or compliance effected pursuant to Sections 3 or 4 hereof, each
Holder selling Registrable Securities pursuant thereto shall indemnify and hold
harmless the Company, each director of the Company, each officer of the Company
and each other person, if any, who controls the Company within the meaning of
the Securities Act, each underwriter, if any, and each person who controls any
of the foregoing persons within the meaning of the Securities Act (each a
"Holder Indemnitee" and collectively the "Holder Indemnitees"), in each case,
against any losses, claims, damages or liabilities, joint or several, to which a
Holder Indemnitee may become subject under the Securities Act or otherwise,
insofar as such losses, claims, damages or liabilities (or actions or
proceedings, whether commenced or threatened, in respect thereof) arise out of
or are based upon (i) any breach of any representation, warranty, agreement or
covenant of such Holder contained in the underwriting agreement covering the
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public offering of such Registrable Securities or (ii) untrue statement or
alleged untrue statement of any material fact contained in any registration
statement under which such Registrable Securities were registered under the
Securities Act pursuant to Sections 3 or 4, any preliminary prospectus, final
prospectus or summary prospectus contained therein, or any amendment or
supplement thereto, or any other document incident to any such registration,
qualification or compliance, or any omission or alleged omission to state
therein a material fact required to be stated therein or necessary to make the
statements therein not misleading, and will reimburse each Holder Indemnitee for
any legal or other expenses reasonably incurred by them in connection with
investigating or defending any such loss, claim, damage, liability or action,
but only to the extent that any such loss, claim, damage or liability (or action
or proceeding in respect thereof) or expense arises out of or is based upon an
untrue statement or alleged untrue statement or omission or alleged omission
made in reliance upon and in conformity with information pertaining to such
Holder, as such, furnished in writing to the Company by such Holder specifically
for use in such document; provided, however, that the foregoing indemnity
agreement is subject to the condition that, insofar as it relates to any such
untrue statement or alleged untrue statement or omission or alleged omission
made in the preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the time the registration statement
becomes effective or in the Final Prospectus, such indemnity agreement shall not
inure to the benefit of the Company, any controlling person or any underwriter,
if the Company had an obligation under the Securities Act to deliver the Final
Prospectus to the person or entity asserting the loss, liability, claim or
damage and such Final Prospectus was not so furnished at or prior to the time
such furnishing is required by the Securities Act; and provided, further, that,
in the case of a registration pursuant to Section 3 or 4 hereof, in no event
shall any indemnity by a seller under this Section 9(b) exceed the gross
proceeds from the offering received by such seller. Such indemnity shall remain
in full force and effect, regardless of any investigation made by or on behalf
of the Company or any such director, officer, underwriter or controlling person,
shall survive the transfer of such Registrable Securities by any such Holder or
underwriter, and shall be in addition to any liability which any such Holder may
otherwise have.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding provisions of this Section 9, such
indemnified party shall, if a claim in respect thereof is to be made against an
indemnifying party, give written notice to the latter of the commencement of
such action; provided, however, that the failure of any indemnified party to
give notice as provided herein shall not relieve the indemnifying party of its
obligations under the preceding provisions of this Section 9, except to the
extent that the indemnifying party is actually prejudiced by such failure to
give notice. In case any such action or proceeding is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may exist
in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that the indemnifying party
may wish, with counsel reasonably satisfactory to such indemnified party, and
after notice from the indemnifying party to such indemnified party of its
election so to assume the defense thereof, the indemnifying party shall not be
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liable to such indemnified party under this Section 9 for any legal or other
expenses subsequently incurred by the latter in connection with the defense
thereof other than reasonable costs of investigation. No indemnifying party
shall, without the consent of the indemnified party, consent to entry of any
judgment or enter into any settlement of any such action which does not include
as an unconditional term thereof the giving by the claimant or plaintiff to such
indemnified party of a release from all liability, or a covenant not to xxx,
with respect to such claim or litigation. No indemnified party shall consent to
entry of any judgment or enter into any settlement of any such action the
defense of which has been assumed by an indemnifying party without the consent
of such indemnifying party (which consent shall not be unreasonably withheld).
(d) Indemnification Payments. The indemnification required by this
Section 9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
(e) Contribution. If for any reason the indemnification provided for in
the preceding provisions of this Section 9 is unavailable to an indemnified
party in respect of any losses, claims, damages or liabilities (or any action or
proceeding in respect thereof) referred to therein, then each indemnifying
party, in lieu of indemnifying an indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or any action or proceeding in respect thereof)
(i) as between the Company and the Holders on the one hand and the underwriters
on the other, in such proportion as is appropriate to reflect the relative
benefits received by the Company and the Holders on the one hand and the
underwriters on the other from the offering of the securities, or if such
allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Holders on the one hand and of the underwriters on
the other in connection with the statement or omissions which resulted in such
losses, claims, damages or liabilities (or action or proceeding), as well as any
other relevant equitable considerations and (ii) as between the Company on the
one hand and each Holder on the other, in such proportion as is appropriate to
reflect the relative fault of the Company and of each Holder in connection with
such statements or omissions, as well as any other relevant equitable
considerations. The relative benefits received by the Company and the Holders on
the one hand and the underwriters on the other shall be deemed to be in the same
proportion as the total proceeds from the offering (net of underwriting
discounts and commissions but before deducting expenses) received by the Company
and the Holders bear to the total underwriting discounts and commissions
received by the underwriters, in each case as set forth in the table on the
cover page of the prospectus. The relative fault of the Company and the Holders
on the one hand and of the underwriters on the other shall be determined by
reference to, among other things, whether the untrue or alleged untrue statement
of a material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company and the Holders or by the
underwriters. The relative fault of the Company on the one hand and of each
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Holder on the other shall be determined by reference to, among other things,
whether the untrue or alleged untrue statement of a material fact or the
omission or alleged omission to state a material fact relates to information
supplied by such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and
equitable if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account of
the equitable considerations referred to in the immediately preceding paragraph.
The amount paid or payable by an indemnified party as a result of the losses,
claims, damages or liabilities referred to in the immediately preceding
paragraph shall be deemed to include, subject to the limitations set forth
above, any legal or other expenses reasonably incurred by such indemnified party
in connection with investigating or defending any such action or claim. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Securities Act) shall be entitled to contribution from any person
who was not guilty of such fraudulent misrepresentation. Each Holder's
obligation to contribute pursuant to this Section 9 is several, and not joint,
in the proportion that the proceeds of the offering received by such Holder
bears to the total proceeds of the offering received by all the Holders.
10. Rule 144. With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use diligent efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities Act
and the Exchange Act;
(c) furnish to a Holder of Registrable Securities forthwith upon
request a written statement by the Company as to its compliance with the
reporting requirements of Rule 144 and of the Securities Act and the Exchange
Act a copy of the most recent annual or quarterly report of the Company, and
such other reports and documents previously filed as the Holder may reasonably
request in availing itself of any rule or regulation of the Commission allowing
the Holder to sell any such securities without registration; and
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(d) in accordance with the Company's current practices, pay the fees
and expenses of the Company's counsel in obtaining routine, appropriate opinions
of counsel (to the effect that registration under Securities Act will or will
not be required for any sale or transfer) if at any time or from time to time
any holder desires to sell or otherwise transfer any or all of the Registrable
Securities held by it pursuant to Rule 144 or Rule 145(d) under the Securities
Act.
11. Lock-Up.
(a) Company Lock-Up. The Company agrees not to effect any public sale
or public distribution of its equity securities, or any securities convertible
into or exchangeable or exercisable for such securities, during the 30-day
period prior to and during the 90-day period beginning on the commencement date
of any underwritten offering on behalf of the Holders (except pursuant to (i)
registrations on Form S-8 or any successor form, (ii) registrations on Form S-4
or any successor form and (iii) as part of such underwritten registration, if
permitted pursuant to Section 3(d)), unless the underwriters managing such
offering otherwise agree; provided, however, that the foregoing 30-day and
90-day periods shall be extended to the extent requested by such managing
underwriters, but not beyond a 60-day and 180-day period, respectively.
(b) Holder Lock-Up. Each Holder agrees not to effect any public sale or
other distribution of Company Common Stock, or any securities convertible into
or exchangeable or exercisable therefor, during the 30-day period prior to (or
if less, the period beginning on the date notice of such proposed offering is
received) and during the 90-day period beginning on the commencement of any
underwritten offering on the part of the Company of Company Common Stock being
sold for the account of the Company (except pursuant to (i) registrations on
Form S-8 or any successor form, (ii) registrations on Form S-4 or any successor
form and (iii) any part of such underwritten registration, if permitted pursuant
to Section 4(a)), unless the underwriters managing such offering otherwise
agree; provided, however, that the foregoing 30-day and 90-day periods shall be
extended to the extent requested by such managing underwriters, but not beyond a
60-day and 180-day period, respectively.
12. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act herein
required to be performed by it, if the Company shall have obtained the written
consent to such amendment, action or omission to act, of the holders of at least
seventy percent (70%) of the Registrable Securities initially issued pursuant to
the Reorganization Agreement.
13. Notices. All notices, consents, waivers, and other communications
under this Agreement must be in writing and will be deemed to have been duly
given when (a) delivered by hand (with written confirmation of receipt), (b)
sent by facsimile (if received during regular business hours; otherwise on the
next business day) (with written confirmation of receipt), provided that a copy
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is mailed by registered mail, return receipt requested, or (c) when received by
the addressee, if sent by certified mail or a nationally recognized overnight
delivery service (receipt requested), in each case to the appropriate addresses
and facsimile numbers set forth below (or to such other addresses and facsimile
numbers as a party may designate by notice to the other parties):
(a) If to the Company:
ATMI, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: President and CEO
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
(b) If to a Holder, at the Holder's address as set forth on Schedule 1.
with a copy to:
Xxxxxxx X. Xxxxxxx, Esq.
Xxxxxxx, Xxxxxxx & Xxxxxxxx LLP
000 Xxxxxxxx Xxxxxx
Xxxxx 0000
Xxxxxx XX 00000
Facsimile: (000) 000-0000
14. Miscellaneous.
(a) Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective heirs,
successors and assigns.
(b) Headings. The headings of the several sections and paragraphs of
this Agreement are inserted for reference only and shall not limit or otherwise
affect the meaning thereof.
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(c) Counterparts. This Agreement may be executed in counterparts, and
when so executed each counterpart shall be deemed to be an original, and said
counterparts together shall constitute one and the same instrument.
(d) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings with respect to
such subject matter.
(e) Singular and Plural Words; Gender. Unless the context otherwise
requires, all words used herein in the singular shall include the plural, all
words used herein in the plural shall include the singular, and all words used
herein in any gender shall include all genders.
(f) Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws of
the State of Delaware without reference to the principles of conflicts of laws.
[The signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered as of the date first above written.
ATMI, INC.
By: /s/ E. G. Banucci
-----------------------------
Its: President
STOCKHOLDERS:
/s/ Xxxxxxx X. Xxxxxxx
-------------------------------
Xxxxxxx X. Xxxxxxx
F.H.S. Investments, Ltd.
By /s/ Xxxxxxxxx X. Xxxxxxx
-----------------------------
General Partner
/s/ Xxxxxxxxx X. Xxxxxxx
--------------------------------
Xxxxxxxxx X. Xxxxxxx
/s/ Xxxxxxx XxXxxxx
--------------------------------
Xxxxxxx XxXxxxx
/s/ Xxxxxx X. Xxxxxxx
--------------------------------
Xxxxxx X. Xxxxxxx
19
SCHEDULE 1
STOCKHOLDERS
------------
INITIAL NO. OF
NAME: REGISTRABLE SECURITIES
----- ----------------------
Xxxxxxx X. Xxxxxxx 3,741,305
0000 Xxxxxxxxxxx Xxx
Xxxxxx, Xxxxx 00000
F.H.S. Investments, Ltd. 626,534
c/o Xxxxxxxxx X. Xxxxxxx
0000 Xxxxxx'x Xxxxx Xxxx
Xxxxxx, Xxxxx 00000
Xxxxxxxxx X. Xxxxxxx 179,009
0000 Xxxxxxxxx Xxxx
Xxxxxx, Xxxxx 00000
Xxxxxxx XxXxxxx 626,534
00000 Xxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Xxxxxx X. Xxxxxxx 89,504
000 Xxxxxx Xxxxx
Xxxxxx, Xxxxx 00000
