As filed with the Securities and Exchange Commission on May 29, 1998
Registration No. 333-
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
______________
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
______________
ATMI, INC.
(Exact name of registrant as specified in its charter)
Delaware 06-1481060
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
______________
7 Commerce Drive, Danbury, Connecticut 06810
(Address of Principal Executive Offices) (Zip Code)
______________
ATMI, Inc.
1998 Employee Stock Purchase Plan
(Full title of the plan)
______________
Eugene G. Banucci
Chief Executive Officer
ATMI, Inc.
7 Commerce Drive
Danbury, Connecticut 06810
(Name and address of agent for service)
______________
(203) 794-1100
(Telephone number, including area code, of agent for service)
______________
Copy to:
Donna L. Brooks, Esq.
Shipman & Goodwin LLP
One American Row
Hartford, Connecticut 06103
(860) 251-5000
<TABLE>
CALCULATION OF REGISTRATION FEE
<CAPTION>
<S> <C> <C> <C> <C>
- ------------------------------ --------------------- --------------------- --------------------- ---------------------
Proposed
Proposed maximum
Title of Securities Amount to be maximum offering aggregate offering Amount of
to be registered Registered price per unit (1) price (1) registration fee
- ------------------------------ --------------------- --------------------- --------------------- ---------------------
- ------------------------------ --------------------- --------------------- --------------------- ---------------------
Common Stock, par value
$.01....................... 500,000 $16.875 $8,437,500 $2,489.06
- ------------------------------ --------------------- --------------------- --------------------- ---------------------
<FN>
(1) Estimated solely for the purpose of calculating the registration fee. Pursuant to Rule 457(h), the
proposed maximum offering price per share is based on the average of the high and low price per share of
$16.875 on June 1, 1998, as reported by the Nasdaq National Market.
</FN>
</TABLE>
<PAGE>
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The Section 10(a) prospectus being delivered by ATMI, Inc. (the "Company")
to participants in the Company's 1998 Employee Stock Purchase Plan, as required
by Rule 428 under the Securities Act of 1933, as amended (the "Securities Act"),
has been prepared in accordance with the requirements of Form S-8 and relates to
shares of Common Stock, par value $.01 per share, issued or reserved for
issuance pursuant to options granted under the 1998 Employee Stock Purchase
Plan. The information with respect to options granted under the 1998 Employee
Stock Purchase Plan required in the Section 10(a) prospectus is included in
documents being maintained and delivered by the Company as required by Rule 428
under the Securities Act. The Company shall provide to participants a written
statement advising them of the availability without charge, upon written or oral
request, of documents incorporated by reference herein, as is required by Item 2
of Part I of Form S-8.
<PAGE>
II-4
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents are hereby incorporated by reference in this
registration statement:
(a) The Company's Annual Report on Form 10-K for the year ended
December 31, 1997;
(b) The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1998; and
(c) The description of the common stock of the Company's predecessor
registrant, Advanced Technology Materials, Inc. ("ATM"), contained in ATM's
registration statement on Form 8-A filed on October 29, 1993, which
description was amended on Form 8-A/A filed on November 11, 1993, and any
amendment or report filed for the purpose of further updating such
description.
All documents subsequently filed by the Company pursuant to Sections 13(a),
13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective
amendment which indicates that all securities offered hereby have been sold or
which deregisters all such securities then remaining unsold, shall be deemed to
be incorporated by reference in this registration statement and to be part
thereof from the date of filing of such documents. Any statement contained in a
document incorporated or deemed to be incorporated by reference in this
registration statement shall be deemed to be modified or superseded for purposes
of this registration statement to the extent that a statement contained herein
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such
statement so modified or superseded shall not be deemed, except as so modified
or superseded, to constitute a part of this registration statement.
Item 4. Description of Securities.
This Item is not applicable.
Item 5. Interests of Named Experts and Counsel.
As of the date of this registration statement, 7,000 shares of the
Company's Common Stock are beneficially owned by lawyers employed at Shipman &
Goodwin LLP, counsel to the Company.
Item 6. Indemnification of Directors and Officers.
The Company's Certificate of Incorporation provides that the personal
liability of the directors of the Company shall be limited to the fullest extent
permitted by the provisions of Section 102(b)(7) of the Delaware General
Corporation Law, as amended (the "DGCL"). Section 102(b)(7) of the DGCL
generally provides that no director shall be liable personally to the Company or
its stockholders for monetary damages for breach of fiduciary duty as a
director; however, the Certificate of Incorporation does not eliminate the
liability of a director for (i) any breach of the director's duty of loyalty to
the Company or its stockholders; (ii) acts or omissions not in good faith or
that involve intentional misconduct or a knowing violation of law; (iii) acts or
omissions in respect of certain unlawful dividend payments or stock redemptions
or repurchases; or (iv) any transaction from which such director derives
improper personal benefit. The effect of this provision is to eliminate the
rights of the Company and its stockholders (through stockholders' derivative
suits on behalf of the Company) to recover monetary damages against a director
for breach of his or her fiduciary duty of care as a director (including
breaches resulting from negligent or grossly negligent behavior) except in the
situations described in clauses (i) through (iv) above. The limitations
summarized above, however, do not affect the ability of the Company or its
stockholders to seek nonmonetary remedies, such as an injunction or rescission,
against a director for breach of his or her fiduciary duty.
In addition, the Company's Certificate of Incorporation provides that the
Company shall, to the fullest extent permitted by Section 145 of the DGCL,
indemnify all persons whom it may indemnify pursuant to Section 145 of the DGCL.
Section 145 of the DGCL permits a company to indemnify an officer or director
who was or is a party or is threatened to be made a party to any proceeding
because of his or her position, if the officer or director acted in good faith
and in a manner he or she reasonably believed to be in or not opposed to the
best interests of the Company and, with respect to any criminal action or
proceeding, had no reasonable cause to believe his or her conduct was unlawful.
Insofar as indemnification for liabilities arising under the Securities Act may
be permitted to directors, officers, or persons controlling the Company pursuant
to the foregoing provisions, the Company has been informed that in the opinion
of the Securities and Exchange Commission, such indemnification is against
public policy as expressed in the Securities Act and is therefore unenforceable.
The Company maintains insurance for officers and directors against certain
liabilities, including liabilities under the Securities Act. The effect of this
insurance is to indemnify any officer or director of the Company against
expenses, including, without limitation, attorneys' fees, judgments, fines and
amounts paid in settlement, incurred by an officer or director upon a
determination that such person acted in good faith.
Item 7. Exemption from Registration Claimed.
This Item is not applicable.
Item 8. Exhibits.
Exhibit No. Description
4.1(a) Certificate of Incorporation of the Company (Exhibit 3.01 to the
Company's Registration Statement on Form S-4, filed September 10,
1997, File No. 333-35323 (the "Form S-4 Registration Statement")). (1)
4.1(b) Certificate of Amendment to Certificate of Incorporation (Exhibit
4.1(b) to the Company's Post-Effective Amendment No. 1 to Registration
Statement on Form S-8, filed October 10, 1997, Registration No.
33-77060). (1)
4.2 Bylaws of the Company (Exhibit 3.02 to the Form S-4 Registration
Statement). (1)
5.1 Opinion of Shipman & Goodwin LLP as to the legality of the securities
being registered. (2)
23.1 Consent of Shipman & Goodwin LLP (included in Exhibit 5.1). (2)
23.2 Consent of Ernst & Young LLP. (2)
23.3 Consent of Price Waterhouse LLP. (2)
24.1 Power of Attorney (included in the signature page of this registration
statement). (2)
99.1 The Company's 1998 Employee Stock Purchase Plan. (2)
__________________________
(1) Incorporated by reference.
(2) Filed herewith.
Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement to include
any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change
to such information in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13 or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as in demnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the registrant pursuant to the foregoing provisions, or otherwise, the
registrant has been advised that in the opinion of the Securities and Exchange
Commission such indemnification is against public policy as expressed in the
Securities Act and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
registrant of expenses incurred or paid by a director, officer or controlling
person of the registrant in the successful defense of any action, suit or
proceeding) is asserted by such director, officer or controlling person in
connection with the securities being registered, the registrant will, unless in
the opinion of its counsel the matter has been settled by controlling precedent,
submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities
Act and will be governed by the final adjudication of such issue.
II-6
SIGNATURES
Pursuant to requirements of the Securities Act of 1933, the registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this registration
statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Danbury, State of Connecticut, on June 2, 1998.
ATMI, INC.
By: /s/ Eugene G. Banucci
Eugene G. Banucci,
President, Chief Executive Officer
and Chairman of the Board
POWER OF ATTORNEY
Know All Persons by These Presents, that each person whose signature
appears below constitutes and appoints Eugene G. Banucci, Ph.D. and Daniel P.
Sharkey, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution for him and in his name,
place and stead, in any and all capacities to sign any and all amendments
(including post-effective amendments) to this Registration Statement, and to
file same, with all exhibits thereto, and other documents in connection
therewith, with full power and authority to do and perform each and every act
and thing requisite or necessary to be done in and about the premises, as fully
to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents or any of them, of
their or his substitute or substitutes, may lawfully do or cause to be done by
virtue hereof.
___________________
Pursuant to the requirements of the Securities Act of 1933, this
registration statement has been signed by the following persons in the
capacities and on the dates indicated.
Signature Title Date
/s/Eugene G. Banucci President, Chief Executive Officer, June 2, 1998
Eugene G. Banucci, Ph.D. Chairman of the Board and
Director (principal executive
officer)
/s/Daniel P. Sharkey Vice President, Treasurer and Chief June 2, 1998
Daniel P. Sharkey Financial Officer (principal
financial and accounting officer)
/s/Mark A. Adley Director June 2, 1998
Mark A. Adley
/s/John A. Armstrong Director June 2, 1998
John A. Armstrong
/s/Lamonte H. Lawrence Director June 2, 1998
Lamonte H. Lawrence
/s/Robert S. Hillas Director June 2, 1998
Robert S. Hillas
/s/Stephen H. Mahle Director June 2, 1998
Stephen H. Mahle
/s/Stephen H. Siegele Director June 2, 1998
Stephen H. Siegele
Exhibit Index
Sequentially Numbered
Exhibit No. Description Page
4.1(a) Certificate of Incorporation of the Company
(Exhibit 3.01 to the Company's Registration
Statement on Form S-4, filed September 10,
1997, File No. 333-35323 (the "Form S-4
Registration Statement")). (1)
4.1(b) Certificate of Amendment to Certificate of
Incorporation (Exhibit 4.1(b) to the
Company's Post-Effective Amendment No. 1 to
Registration Statement on Form S-8, filed
October 10, 1997, Registration No. 33-77060).
(1)
4.2 Bylaws of the Company (Exhibit 3.02 to the
Form S-4 Registration Statement). (1)
5.1 Opinion of Shipman & Goodwin LLP as to the
legality of the securities being registered.
(2)
23.1 Consent of Shipman & Goodwin LLP (included in
Exhibit 5.1). (2)
23.2 Consent of Ernst & Young LLP. (2)
23.3 Consent of Price Waterhouse LLP. (2)
24.1 Power of Attorney (included in the signature
page of this registration statement). (2)
99.1 The Company's 1998 Employee Stock Purchase
Plan. (2)
______________________
(1) Incorporated by reference.
(2) Filed herewith.
Exhibit 5.1
Shipman & Goodwin LLP One American Row
Counselors at Law Hartford, CT 06103-2819
Tel: (860) 251-5000
June 1, 1998
ATMI, Inc.
7 Commerce Drive
Danbury, CT 06810
Re: Registration Statement on Form S-8
Relating to Shares of Common Stock of ATMI, Inc.
Issuable under its 1998 Employee Stock Purchase Plan
Ladies and Gentlemen:
As counsel for ATMI, Inc., a Delaware corporation (the "Company"), we are
furnishing you with this opinion in connection with the issuance of a maximum of
500,000 shares of Common Stock of the Company (the "Shares") pursuant to the
above-referenced Plan (the "Plan"), to which the above-referenced Registration
Statement relates.
We have examined such originals or copies of corporate records of the
Company, certificates of public officials and of officers of the Company and
other documents, have obtained such assurances from officers and representatives
of the Company, have made such other factual inquiries, and have made such
examination of law, as we have deemed proper and necessary to enable us to
render this opinion.
Based on the foregoing, it is our opinion that the Shares will, when issued
as contemplated by the Plan and said Registration Statement, be duly authorized
and legally issued, fully paid and non-assessable.
We hereby consent to the use of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Shipman & Goodwin LLP
Exhibit 23.2
Consent of Independent Auditors
We consent to the incorporation by reference in this Registration Statement
on Form S-8 of our report dated February 11, 1998, with respect to the
consolidated financial statements and schedule of ATMI, Inc. included in its
Annual Report on Form 10-K for the year ended December 31, 1997, filed with the
Securities and Exchange Commission.
/s/ Ernst & Young LLP
Stamford, CT
June 1, 1998
Exhibit 23.3
Consent of Independent Accountants
We hereby consent to the incorporation by reference in the Registration
Statement on Form S-8 of ATMI, Inc. of our report dated May 17, 1997, except for
the last paragraph of Note 3 which is as of July 29, 1997 and the last paragraph
of Note 6 which is as of December 18, 1997, pertaining to the combined financial
statements of Lawrence Semiconductor Laboratories, Inc. and Affiliate included
in ATMI, Inc.'s Annual Report on Form 10-K for the year ended December 31, 1997.
It should be noted, however, that such financial statement are not included
separately in the Form 10-K. We also consent to the application of such report
to the Financial Statement Schedule for the two years ended December 31, 1996
included in the Form 10-K when such schedule is read in conjunction with the
financial statements referred to in our report. The audits referred to in such
report also included this schedule.
/s/ Price Waterhouse LLP
Phoenix, Arizona
May 29, 1998
Exhibit 99.1
ATMI, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
1. PURPOSE
The purpose of the 1998 Employee Stock Purchase Plan (the "Plan") is to
provide eligible employees of the Company and its Designated Subsidiaries with
an opportunity to purchase Common Stock of the Company through accumulated
payroll deductions. It is the intention of the Company to have the Plan qualify
as an "Employee Stock Purchase Plan" under Section 423 of the Internal Revenue
Code of 1986, as amended. The provisions of the Plan, accordingly, shall be
construed so as to extend and limit participation in a manner consistent with
the requirements of that section of the Code.
2. DEFINITIONS
(a) "Administrator" shall mean the Board or a compensation committee or
other committee consisting of two or more Board members appointed by the Board
to administer the Plan.
(b) "Board" shall mean the Board of Directors of the Company.
(c) "Code" shall mean the Internal Revenue Code of 1986, as amended.
(d) "Common Stock" shall mean the Common Stock of the Company.
(e) "Company" shall mean ATMI, Inc. and any Designated Subsidiary of the
Company.
(f) "Compensation" shall mean all regular salary (base straight time gross
earnings).
(g) "Designated Subsidiaries" shall mean the Subsidiaries which have been
designated by the Board from time to time in its sole discretion as eligible to
participate in the Plan.
(h) "Employee" shall mean any individual who is an employee of the Company
for tax purposes whose customary employment with the Company is at least twenty
(20) hours per week and more than five (5) months in any calendar year. For
purposes of the Plan, the employment relationship shall be treated as continuing
intact while the individual is on sick leave or other leave of absence approved
by the Company. Where the period of leave exceeds 90 days and the individual's
right to reemployment is not guaranteed either by statute or by contract, the
employment relationship shall be deemed to have terminated on close of business
on the 90th day of such leave.
(i) "Enrollment Date" shall mean the first day of each Offering
Period.
(j) "Exercise Date" shall mean the last day of each Offering Period.
(k) "Fair Market Value" shall mean, as of any date, the value of
Common Stock determined as follows:
(1) If the Common Stock is listed on any national
securities exchange, its Fair Market Value shall be the
average of the high and low prices for such stock as
quoted on the principal national securities exchange on
which the Common Stock is then traded for the last
Trading Day prior to the time of determination, as
reported in The Wall Street Journal or such other
source as the Administrator deems reliable, or;
(2) If the Common Stock is quoted on the Nasdaq National
Market or the Nasdaq SmallCap Market of The Nasdaq
Stock Market, its Fair Market Value shall be the last
reported sales price for such stock (or the closing
bid, if no sales were reported) as quoted by the Nasdaq
National Market or the Nasdaq SmallCap Market for the
last Trading Day prior to the time of determination, as
reported in The Wall Street Journal or such other
source as the Administrator deems reliable, or;
(3) If the Common Stock is regularly quoted by an
established quotation service for over-the-counter
securities but selling prices are not reported, its
Fair Market Value shall be the closing bid price (or
average of bid prices) for the Common Stock for the
last Trading Day prior to the time of determination, as
reported in The Wall Street Journal or such other
source as the Administrator deems reliable, or;
(4) In the absence of an established market for the Common
Stock, the Fair Market Value thereof shall be
determined in good faith by the Administrator.
(l) "Offering Period" shall have the meaning set forth in Section 4 hereof.
(m) "Option Price" shall mean an amount equal to 85% of the Fair Market
Value of a share of Common Stock on the Enrollment Date or on the Exercise Date,
whichever is lower.
(n) "Participant" shall mean an Employee who has met the eligibility
requirements of Section 3 and who has elected to participate pursuant to an
election under Section 5(a).
(o) "Plan" shall mean this Employee Stock Purchase Plan.
(p) "Reserved Shares" shall mean the number of shares of Common Stock
covered by each option under the Plan which have not yet been exercised and the
number of shares of Common Stock which have been authorized for issuance under
the Plan but not yet placed under option.
(q) "Subsidiary" shall mean a corporation, domestic or foreign, whether or
not such corporation now exists or is hereafter organized or acquired by the
Company or a Subsidiary, which would be a "subsidiary corporation" of the
Company as such term is defined in Section 424(f) of the Code or any successor
provision thereto.
(r) "Trading Day" shall mean a day on which national stock exchanges and
The Nasdaq Stock Market are open for trading.
3. ELIGIBILITY
(a) Any Employee (as defined in Section 2(h)), who shall be employed by the
Company for at least six months on a given Enrollment Date shall be eligible to
participate in the Plan.
(b) Any provisions of the Plan to the contrary notwithstanding, no Employee
shall be granted an option under the Plan:
(i) to the extent that, immediately after the grant, such Employee (or
any other person whose stock would be attributed to such Employee pursuant
to Section 424(d) of the Code) would own capital stock of the Company
and/or hold outstanding options to purchase such stock possessing five
percent (5%) or more of the total combined voting power or value of all
classes of the capital stock of the Company (including any parent or
Subsidiary of the Company); or
(ii) to the extent that his or her rights to purchase stock under all
employee stock purchase plans of the Company (and its parent or
Subsidiaries) accrues at a rate which exceeds Twenty-Five Thousand Dollars
($25,000) of the Fair Market Value of such stock (determined at the time
such option is granted) for each calendar year in which such option is
outstanding at any time. If an Employee's payroll deductions during an
Offering Period exceed the purchase price for the maximum number of shares
of Common Stock that may be purchased under an option outstanding in any
calendar year, the excess shall be retained in such Employee's account and
applied in the next Offering Period.
4. OFFERING PERIODS
The Plan shall be implemented by consecutive, six-month periods ("Offering
Periods") with a new Offering Period commencing on the first Trading Day on or
after January 1 and July 1 each year, or on such other date as the Administrator
shall determine, and continuing thereafter until terminated in accordance with
Section 19 hereof. The Administrator shall have the power to change the duration
of Offering Periods (including the commencement dates thereof) with respect to
future offerings without stockholder approval if such change is announced at
least ten (10) days prior to the scheduled beginning of the first Offering
Period to be affected thereafter.
5. PARTICIPATION
(a) An eligible Employee may become a Participant in the Plan by completing
a subscription agreement authorizing payroll deductions in the form of Exhibit A
to this Plan and filing it with the Company's payroll office at least ten (10)
business days prior to the applicable Enrollment Date.
(b) Payroll deductions for a Participant shall commence on the first
payroll following the Enrollment Date and shall end on the last payroll in the
Offering Period to which such authorization is applicable, unless sooner
terminated by the Participant as provided in Section 10 hereof.
(c) A Participant's subscription agreement shall remain in effect for
successive Offering Periods unless terminated as provided in Section 10 hereof
or modified as provided in Section 6 hereof.
6. PAYROLL DEDUCTIONS
(a) At the time a Participant files his or her subscription agreement, he
or she shall elect to have payroll deductions made on each pay day during the
Offering Period in an amount not less than one percent (1%) and not exceeding
fifteen percent (15%) of the Compensation which he or she receives on each pay
day during the Offering Period, and the aggregate of such payroll deductions
during the Offering Period shall not exceed fifteen percent (15%) of the
Participant's Compensation during such Offering Period.
(b) All payroll deductions made for a Participant shall be credited to his
or her account under the Plan and shall be withheld in whole percentages only. A
Participant may not make any additional payments into such account.
(c) A Participant may discontinue his or her participation in the Plan as
provided in Section 10 hereof and may increase or decrease the rate of his or
her payroll deductions during the Offering Period by completing or filing with
the Company a new subscription agreement authorizing a change in payroll
deduction rate. The Administrator may, in its discretion, limit the number of
participation rate changes during any Offering Period. The change in rate shall
be effective with the first full payroll period following ten (10) business days
after the Company's receipt of the new subscription agreement unless the Company
elects to process a given change in participation more quickly.
(d) At the time the option is exercised, in whole or in part, or at the
time some or all of the Company's Common Stock issued under the Plan is disposed
of, the Participant must make adequate provision for the Company's federal,
state, or other tax withholding obligations, if any, which arise upon the
exercise of the option or the disposition of the Common Stock. At any time, the
Company may, but shall not be obligated to, withhold from the Participant's
compensation the amount necessary for the Company to meet applicable withholding
obligations, including any withholding required to make available to the Company
any tax deductions or benefits attributable to sale or early disposition of
Common Stock by the Employee.
7. GRANT OF OPTION
On the Enrollment Date of each Offering Period, each eligible Employee
participating in such Offering Period shall be deemed to have been granted an
option to purchase on each Exercise Date during such Offering Period (at the
applicable Option Price) up to a number of shares of the Company's Common Stock
determined by dividing such Employee's payroll deductions accumulated prior to
such Exercise Date and retained in the Participant's account as of the Exercise
Date by the applicable Option Price; provided that such purchase shall be
subject to the limitations set forth in Sections 3(b) and 12 hereof. Exercise of
the option shall occur as provided in Section 8 hereof, unless the Participant
has withdrawn pursuant to Section 10 hereof. The option shall expire on the last
day of the Offering Period.
8. EXERCISE OF OPTION
Unless a Participant withdraws from the Plan as provided in Section 10
hereof, his or her option for the purchase of shares with payroll deductions
shall be exercised automatically on the Exercise Date, and the maximum number of
full shares subject to such option shall be purchased for such Participant at
the applicable Option Price with the accumulated payroll deductions in his or
her account at that time. No fractional shares shall be purchased; any payroll
deductions accumulated in a Participant's account which are not sufficient to
purchase a full share shall be retained in the Participant's account for the
subsequent Offering Period, subject to earlier withdrawal by the Participant as
provided in Section 10 hereof. During a Participant's lifetime, a Participant's
option to purchase shares hereunder is exercisable only by him or her.
9. DELIVERY
As promptly as practicable after each Exercise Date on which a purchase of
shares occurs, the Company shall arrange the delivery to each Participant, as
appropriate, of a certificate representing the shares purchased upon exercise of
his or her option.
10. WITHDRAWAL; TERMINATION OF EMPLOYMENT
(a) A Participant may withdraw all but not less than all the payroll
deductions credited to his or her account and not yet used to exercise his or
her option under the Plan at any time by giving written notice to the Company in
the form of Exhibit B to this Plan. All of the Participant's payroll deductions
credited to his or her account shall be paid to such Participant promptly after
receipt of notice of withdrawal, and such Participant's option for the Offering
Period shall be automatically terminated, and no further payroll deductions for
the purchase of shares shall be made for such Offering Period. If a Participant
withdraws from an Offering Period, payroll deductions shall not resume at the
beginning of the succeeding Offering Period unless the Participant delivers to
the Company a new subscription agreement.
(b) Upon a Participant's ceasing to be an Employee (as defined in Section
2(h) hereof), for any reason, he or she shall be deemed to have elected to
withdraw from the Plan, and the payroll deductions credited to such
Participant's account during the Offering Period but not yet used to exercise
the option shall be returned to such Participant or, in the case of his or her
death, to the person or persons entitled thereto under Section 14 hereof, and
such Participant's option shall be automatically terminated.
(c) A Participant's withdrawal from an Offering Period shall not have any
effect upon his or her eligibility to participate in any similar plan which may
hereafter be adopted by the Company or in succeeding Offering Periods which
commence after the date of withdrawal from a prior Offering Period.
11. INTEREST
No interest shall accrue on the payroll deductions of a Participant in the
Plan, except where otherwise required by local law.
12. STOCK
(a) The stock purchasable under the Plan shall be shares of authorized but
unissued or reacquired Common Stock, including shares of Common Stock purchased
on the open market. The maximum number of shares of the Company's Common Stock
which shall be made available for sale under the Plan shall be 500,000 shares,
subject to adjustment upon changes in capitalization of the Company as provided
in Section 18 hereof. If, on a given Exercise Date, the number of shares with
respect to which options are to be exercised exceeds the number of shares then
available under the Plan, the Company shall make a pro rata allocation of the
shares remaining available for purchase in as uniform a manner as shall be
practicable and as it shall determine to be equitable.
(b) The Participant shall have no interest or voting right in shares
covered by his or her option until such option has been exercised.
(c) Shares to be delivered to a Participant under the Plan shall be
registered in the name of the Participant or in the name of the Participant and
his or her spouse.
13. ADMINISTRATION
(a) The Plan shall be administered by the Administrator. The Administrator
shall have full and exclusive discretionary authority to construe, interpret and
apply the terms of the Plan, to determine eligibility and to adjudicate all
disputed claims filed under the Plan. Every finding, decision and determination
made by the Administrator shall, to the full extent permitted by law, be final
and binding upon all parties.
(b) Notwithstanding the provisions of Subsection (a) of this Section 13, in
the event that Rule 16b-3 promulgated under the Securities Exchange Act of 1934,
as amended (the "Exchange Act"), or any successor provision ("Rule 16b-3")
provides specific requirements for the administrators of plans of this type, the
Plan shall be administered only by such a body and in such a manner as shall
comply with the applicable requirements of Rule 16b-3. Unless permitted by Rule
16b-3, no discretion concerning decisions regarding the Plan shall be afforded
to any person who is not a "non-employee director" as that term is used in Rule
16b-3.
14. DESIGNATION OF BENEFICIARY
(a) A Participant may file a written designation of a beneficiary who is to
receive any shares and cash, if any, from the Participant's account under the
Plan in the event of such Participant's death subsequent to an Exercise Date on
which the option is exercised but prior to delivery to such Participant of such
shares and cash. In addition, a Participant may file a written designation of a
beneficiary who is to receive any cash from the Participant's account under the
Plan in the event of such Participant's death prior to exercise of the option.
If a Participant is married and the designated beneficiary is not the spouse,
spousal consent shall be required for such designation to be effective.
(b) Such designation of beneficiary may be changed by the Participant at
any time by written notice. In the event of the death of a Participant and in
the absence of a beneficiary validly designated under the Plan who is living at
the time of such Participant's death, the Company shall deliver such shares
and/or cash to the executor or administrator of the estate of the Participant,
or if no such executor or administrator has been appointed (to the knowledge of
the Company), the Company, in its discretion, may deliver such shares and/or
cash to the spouse or to any one or more dependents or relatives of the
Participant, or if no spouse, dependent or relative is known to the Company,
then to such other person as the Company may designate.
15. TRANSFERABILITY
Neither payroll deductions credited to a Participant's account nor any
rights with regard to the exercise of an option or to receive shares under the
Plan may be assigned, transferred, pledged or otherwise disposed of in any way
(other than by will, the laws of descent and distribution or as provided in
Section 14 hereof) by the Participant. Any such attempt at assignment, transfer,
pledge or other disposition shall be without effect, except that the Company may
treat such act as an election to withdraw funds in accordance with Section 10
hereof.
16. USE OF FUNDS
All payroll deductions received or held by the Company under the Plan may
be used by the Company for any corporate purpose, and the Company shall not be
obligated to segregate such payroll deductions.
17. REPORTS
Individual accounts shall be maintained for each Participant in the Plan.
Statements of account shall be given to participating Employees at least
annually, which statements shall set forth the amounts of payroll deductions,
the Option Price, the number of shares purchased and the remaining cash balance,
if any.
18. ADJUSTMENTS UPON CHANGES IN CAPITALIZATION, DISSOLUTION, LIQUIDATION, MERGER
OR ASSET SALE
(a) Subject to any required action by the stockholders of the Company, the
Reserved Shares, as well as the price per share, shall be proportionately
adjusted for any increase or decrease in the number of issued shares of Common
Stock resulting from a stock split, reverse stock split, stock dividend,
combination or reclassification of the Common Stock, or any other increase or
decrease in the number of shares of Common Stock effected without receipt of
consideration by the Company; provided, however, that conversion of any
convertible securities of the Company shall not be deemed to have been "effected
without receipt of consideration." Such adjustment shall be made by the Board,
whose determination in that respect shall be final, binding and conclusive.
Except as expressly provided herein, no issuance by the Company of shares of
stock of any class, or securities convertible into shares of stock of any class,
shall affect, and no adjustment by reason thereof shall be made with respect to,
the number or price of shares of Common Stock subject to an option.
(b) In the event of the proposed dissolution or liquidation of the Company,
the Offering Period then in progress shall be shortened by setting a new
Exercise Date (the "New Exercise Date"), and shall terminate immediately prior
to the consummation of such proposed dissolution or liquidation, unless provided
otherwise by the Board. The New Exercise Date shall be before the date of the
Company's proposed dissolution or liquidation. The Board shall notify each
Participant in writing, at least ten (10) business days prior to the New
Exercise Date, that the Exercise Date for the Participant's option has been
changed to the New Exercise Date and that the Participant's option shall be
exercised automatically on the New Exercise Date, unless prior to such date the
Participant has withdrawn from the Offering Period as provided in Section 10
hereof.
(c) In the event of a proposed sale of all or substantially all of the
assets of the Company, or the merger of the Company with or into another
corporation, each option under the Plan shall be assumed or an equivalent option
shall be substituted by such successor corporation or a parent or subsidiary of
such successor corporation, unless the Board determines, in the exercise of its
sole discretion and in lieu of such assumption or substitution, to shorten any
Offering Period then in progress by setting a new Exercise Date (the "New
Exercise Date") or to cancel each outstanding right to purchase and refund all
sums collected from Participants during the Offering Period then in progress. If
the Board shortens the Offering Period then in progress in lieu of assumption or
substitution in the event of a merger or sale of assets, the Board shall notify
each Participant in writing, at least ten (10) business days prior to the New
Exercise Date, that the Exercise Date for his or her option has been changed to
the New Exercise Date and that his or her option will be exercised automatically
on the New Exercise Date, unless prior to such date he or she has withdrawn from
the Offering Period as provided in Section 10 hereof. For purposes of this
paragraph, an option granted under the Plan shall be deemed to be assumed if,
following the sale of assets or merger, the option confers the right to
purchase, for each share of Common Stock subject to the option immediately prior
to the sale of assets or merger, the consideration (whether stock, cash or other
securities or property) received in the sale of assets or merger by holders of
Common Stock for each share of Common Stock held on the effective date of the
transaction (and if such holders were offered a choice of consideration, the
type of consideration chosen by the holders of a majority of the outstanding
shares of Common Stock); provided, however, that if such consideration received
in the sale of assets or merger was not solely common stock of the successor
corporation or its parent (as defined in Section 424(e) of the Code), the Board
may, with the consent of the successor corporation and the Participant, provide
for the consideration to be received upon exercise of the option to be solely
common stock of the successor corporation or its parent equal in fair market
value to the per share consideration received by holders of Common Stock in the
sale of assets or merger.
The Board may, if it so determines in the exercise of its sole discretion,
also make provision for adjusting the Reserved Shares, as well as the price per
share of Common Stock covered by each outstanding option, in the event the
Company effects one or more reorganizations, recapitalization, rights offerings
or other increases or reductions of shares of its outstanding Common Stock, and
in the event of the Company being consolidated with or merged into any other
corporation.
19. AMENDMENT OR TERMINATION
(a) The Board may at any time and for any reason terminate or amend the
Plan, except that without the approval of the stockholders of the Company, the
Board may not (i) increase the number of shares available for sale under the
Plan (except for permissible adjustments provided in the Plan), or (ii)
materially modify the requirements as to eligibility for participation in the
Plan. Except as provided in Section 18 hereof, no such termination can affect
options previously granted. Except as provided in Section 18 hereof, no
amendment may make any change in any option theretofore granted which adversely
affects the rights of any Participant. To the extent necessary to comply with
Rule 16b-3 or Section 423 of the Code (or any successor rule or provision or any
other applicable law or regulation), the Company shall otherwise obtain
stockholder approval in such a manner and to such a degree as required.
(b) Without stockholder consent and without regard to whether any
Participant rights may be considered to have been "adversely affected," the
Board or the Administrator shall be entitled to change the Offering Period,
limit the frequency and/or number of changes in the amount withheld during an
Offering Period, permit payroll withholding in excess of the amount designated
by a Participant in order to adjust for delays or mistakes in the Company's
processing of properly completed withholding elections, establish reasonable
waiting and adjustment periods and/or accounting and crediting procedures to
ensure that amounts applied toward the purchase of Common Stock for each
Participant properly correspond with amounts withheld from the Participant's
Compensation, and establish such other limitations or procedures as the Board or
the Administrator determines in its sole discretion advisable, which are
consistent with the Plan.
20. NOTICES
All notices or other communications by a Participant to the Company under
or in connection with the Plan shall be deemed to have been duly given when
received in the form specified by the Company at the location, or by the person,
designated by the Company for the receipt thereof.
21. CONDITIONS UPON ISSUANCE OF SHARES
Shares shall not be issued with respect to an option unless the exercise of
such option and the issuance and delivery of such shares pursuant thereto shall
comply with all applicable provisions of law, domestic or foreign, including,
without limitation, the Securities Act of 1933, as amended (the "Securities
Act"), the Exchange Act, the rules and regulations promulgated thereunder, and
the requirements of any stock exchange upon which the shares may then be listed,
and shall be further subject to the approval of counsel for the Company with
respect to such compliance.
As a condition to the exercise of an option, the Company may require the
person exercising such option to represent and warrant at the time of any such
exercise that the shares are being purchased only for investment and without any
present intention to sell or distribute such shares if, in the opinion of
counsel for the Company, such a representation is required by any of the
aforementioned applicable provisions of law.
22. EFFECTIVE DATE AND TERM OF PLAN
(a) The Plan shall become effective as of April 14, 1998 (the date of
adoption of the Plan by the Board), provided no options granted under the Plan
shall be exercised, and no shares of Common Stock shall be issued hereunder,
until (i) the Plan shall have been approved by the stockholders of the Company
on or before April 13, 1999 and (ii) the Company shall have complied with all
applicable requirements of the Securities Act (including the registration of the
shares of Common Stock issuable under the Plan on a Form S-8 registration
statement filed with the Securities and Exchange Commission), all applicable
listing requirements of any stock exchange on which the Common Stock is listed
for trading and all other applicable requirements established by law or
regulation. In the event such stockholder approval is not obtained, or such
compliance is not effected, with twelve (12) months after the date on which the
Plan is adopted by the Board, the Plan shall terminate and have no further force
or effect, and all sums collected from Participants during the initial Offering
Periods hereunder shall be refunded.
(b) Unless sooner terminated by the Board, the Plan shall terminate upon
the earlier of (i) April 14, 2008 or (ii) the date on which all shares available
for issuance under the Plan have been sold pursuant to options exercised under
the Plan. No further options shall be granted or exercised, and no further
payroll deductions shall be collected, under the Plan following its termination.
23. GENERAL PROVISIONS
(a) All costs and expenses incurred in the administration of the Plan shall
be paid by the Company.
(b) Nothing in the Plan shall confer upon the Participant any right to
continue in the employ of the Company for any period of specific duration or
interfere with or otherwise restrict in any way the rights of the Company or of
the Participant, which rights are hereby expressly reserved by each, to
terminate such person's employment at any time for any reason, with or without
cause.
(c) The provisions of the Plan shall be governed by the laws of the State
of Delaware, without resort to that state's conflict-of-laws rules.
EXHIBIT A
ATMI, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
SUBSCRIPTION AGREEMENT
_________ Original Application Enrollment Date: _________
_________ Change in Payroll Deduction Rate
_________ Change of Beneficiary(ies)
1. ___________________________ hereby elects to participate in the ATMI, Inc.
1998 Employee Stock Purchase Plan (the "Employee Stock Purchase Plan") and
subscribes to purchase shares of the Company's Common Stock in accordance
with this Subscription Agreement and the Employee Stock Purchase Plan.
2. I hereby authorize payroll deductions from each paycheck in the amount of
___% of my Compensation on each payday (not to exceed 15%, including
amounts deferred under other employee stock purchase plans of the Company)
during the Offering Period in accordance with the Employee Stock Purchase
Plan. (Please note that no fractional percentages are permitted.)
3. I understand that these payroll deductions shall be accumulated for the
purchase of shares of Common stock at the applicable Option Price
determined in accordance with the Employee Stock Purchase Plan. I
understand that if I do not withdraw from an Offering Period, any
accumulated payroll deductions will be used to automatically exercise my
option.
4. I understand that the Internal Revenue Code limits the amount that may be
purchased under all employee stock purchase plans of the Company to a
maximum of $25,000 worth of Company stock, based on the fair market value
of the stock on the first day of the Offering Period, per calendar year.
5. I have received a copy of the complete Employee Stock Purchase Plan. I
understand that my participation in the Employee Stock Purchase Plan is in
all respects subject to the terms of the Plan. I understand that my ability
to exercise the option under this Subscription Agreement is subject to
stockholder approval of the Employee Stock Purchase Plan.
6. Shares purchased for me under the Employee Stock Purchase Plan should be
issued in the name(s) of (Employee or Employee and Spouse only):
__________________________________________________________________________
7. I understand that if I dispose of any shares received by me pursuant to the
Plan within two years after the Enrollment Date (the first day of the
Offering Period during which I purchased such shares) or one year after the
Exercise Date, I will be treated for federal income tax purposes as having
received ordinary income at the time of such disposition in an amount equal
to the excess of the fair market value of the shares at the time such
shares were purchased by me over the price which I paid for the shares. I
hereby agree to notify the Company in writing within 30 days after the date
of any disposition of my shares, and I will make adequate provision for
federal, state or other tax withholding obligations, if any, which arise
upon the disposition of the Common Stock. The Company may, but will not be
obligated to, withhold from my compensation the amount necessary to meet
any applicable withholding obligation including any withholding necessary
to make available to the Company any tax deductions or benefits
attributable to sale or early disposition of Common Stock by me. If I
dispose of such shares at any time after the expiration of the 2-year and
1-year holding periods, I understand that I will be treated for federal
income tax purposes as having received income only at the time of such
disposition, and that such income will be taxed as ordinary income only to
the extent of an amount equal to the lesser of (1) the excess of the fair
market value of the shares at the time of such disposition over the
purchase price which I paid for the shares, or (2) 15% of the fair market
value of the shares on the first day of the Offering Period. The remainder
of the gain, if any, recognized on such disposition will be taxed as
capital gain.
8. I hereby agree to be bound by the terms of the Employee Stock Purchase
Plan. The effectiveness of this Subscription Agreement is dependent upon my
eligibility to participate in the Employee Stock Purchase Plan.
9. In the event of my death, I hereby designate the following as my
beneficiary(ies) to receive all payments and shares due me under the
Employee Stock Purchase Plan:
NAME: (Please print) _________________________________________________________
(First) (Middle) (Last)
Relationship
Employee's Social
Security Number:
Employee's Address:
I UNDERSTAND THAT THIS SUBSCRIPTION AGREEMENT SHALL REMAIN IN EFFECT
THROUGHOUT SUCCESSIVE OFFERING PERIODS UNLESS TERMINATED BY ME.
Dated: ________________________
____________________________________________
Signature of Employee
____________________________________________
Spouse's Signature (If beneficiary other than spouse)
EXHIBIT B
ATMI, INC.
1998 EMPLOYEE STOCK PURCHASE PLAN
NOTICE OF WITHDRAWAL
The undersigned participant in the Offering Period of the ATMI, Inc. 1998
Employee Stock Purchase Plan which began on _________________, 19 ___ (the
"Enrollment Date") hereby notifies the Company that he or she hereby withdraws
from the Offering Period. He or she hereby directs the Company to pay to the
undersigned as promptly as practicable all the payroll deductions credited to
his or her account with respect to such Offering Period. The undersigned
understands and agrees that his or her option for such Offering Period will be
automatically terminated. The undersigned understands further that no further
payroll deductions will be made for the purchase of shares in the current
Offering Period and the undersigned shall be eligible to participate in
succeeding Offering Periods only by delivering to the Company a new Subscription
Agreement.
Name and Address of Participant:
__________________________________
__________________________________
__________________________________
Signature:
__________________________________
Date:
_______________________
