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EXHIBIT C
AFFILIATE AGREEMENT
October 10, 1997
ATMI, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
This Affiliate Agreement is being entered into pursuant to the terms
and conditions of that certain Agreement and Plan of Merger and Exchange dated
as of the 7th day of April, 1997 (the "Exchange Agreement"), by and among
Advanced Technology Materials, Inc, a Delaware corporation ("ATMI"), ATMI
Holdings, Inc. (n/k/a ATMI, Inc.), a Delaware corporation ("Holdings"), Alamo
Merger, Inc., a Delaware corporation, Advanced Delivery & Chemical Systems
Nevada, Inc., a Nevada corporation, Advanced Delivery & Chemical Systems
Manager, Inc., a Delaware corporation, Advanced Delivery & Chemical Systems
Holdings, LLC, a Delaware limited liability company, Advanced Delivery &
Chemical Systems Operating, LLC, a Delaware limited liability company and
Advanced Delivery & Chemical Systems, Ltd., a Texas limited partnership.
Capitalized terms used and not defined herein shall have the respective meanings
assigned to such terms in the Exchange Agreement.
The undersigned has been advised that as of the date hereof the
undersigned may be deemed to be an "affiliate" of the ADCS Group and may be
deemed to be an "affiliate" of Holdings, as the term "affiliate" is (i) defined
under Rule 144 ("Rule 144") of the Rules and Regulations (the "Rules and
Regulations") of the Securities and Exchange Commission (the "SEC") under the
Securities Act of 1933, as amended (the "Act"), and/or (ii) used in and for
purposes of Accounting Series Releases 130 and 135, as amended. The undersigned
understands that the representations, warranties and covenants set forth herein
will be relied upon by the ATMI Group, the ADCS Group, the ADCS Holders and
their respective counsel and accountants.
The undersigned represents and warrants to and agrees that:
1. The undersigned has full power to execute and deliver this Affiliate
Agreement and to make the representations and warranties herein and to perform
his or its obligations hereunder.
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2. The undersigned has carefully read this letter and the Exchange
Agreement and all schedules and exhibits thereto and discussed the requirements
and other applicable limitations upon the undersigned's ability to sell,
transfer or otherwise dispose of Holdings Common Stock to the extent the
undersigned has felt necessary with his or its counsel, counsel to the ATMI
Group or counsel to the ADCS Group.
3. The undersigned shall not make any sale, transfer or other
disposition of Holdings Common Stock in violation of the Act or the Rules and
Regulations.
4. The undersigned has been advised that the issuance of shares of
Holdings Common Stock to the undersigned in connection with the Exchange has
been registered with the SEC under the Act on a Registration Statement on Form
S-4. However, the undersigned has also been advised that, since the undersigned
may be deemed to be an affiliate of the ADCS Group and the distribution by the
undersigned of any Holdings Common Stock received in the Exchange has not been
registered under the Act, the undersigned may not sell, transfer or otherwise
dispose of Holdings Common Stock issued to the undersigned in the Exchange
unless (i) such sale, transfer or other disposition has been registered under
the Act, (ii) such sale, transfer or other disposition is made in conformity
with the requirements, to the extent applicable, of Rule 145 ("Rule 145") of the
Rules and Regulations under the Act and of Rule 144, or (iii) in the opinion of
counsel reasonably acceptable to Holdings, such sale, transfer or other
disposition is otherwise exempt from registration under the Act. The undersigned
hereby agrees to comply with such requirements.
5. From and after the Closing Date and for so long as and to the extent
necessary to permit the undersigned to sell any shares of Holdings Common Stock
pursuant to the applicable provisions of Rule 145 and Rule 144, Holdings shall
use best efforts to file, on a timely basis, all reports required to be filed by
it with the SEC pursuant to Section 13 or 15(d) of the Exchange Act (or, if
applicable, Holdings will make publicly available the information regarding
itself referred to in paragraph (c)(2) of Rule 144), and, so long as Holdings is
subject to such requirement, furnish to the undersigned upon request a written
statement as to whether Holdings has complied with such reporting requirements
during the twelve (12) months preceding any proposed sale under Rule 145 or Rule
144 and otherwise use its best efforts to permit such sales pursuant to Rule 145
or Rule 144. ATMI has filed, on a timely basis, all reports required to be filed
with the SEC under Section 13 of the Exchange Act during the twelve (12) months
preceding the date hereof.
6. Stop transfer instructions will be given to Holdings' transfer agent
with respect to the Holdings Common Stock received in the Exchange, and there
will be placed on the certificates for such Holdings Common Stock issued to the
undersigned, or any substitutions therefor, a legend stating in substance:
"THE SHARES REPRESENTED BY THIS CERTIFICATE MAY NOT BE SOLD,
TRANSFERRED OR OTHERWISE DISPOSED OF EXCEPT IN ACCORDANCE WITH
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THE REQUIREMENTS OF THE SECURITIES ACT OF 1933 AND THE TERMS
OF THAT CERTAIN AFFILIATE AGREEMENT DATED OCTOBER 10, 1997
BETWEEN THE REGISTERED HOLDER HEREOF AND ATMI, INC., A COPY OF
WHICH AFFILIATE AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICES
OF ATMI, INC. ATMI, INC. WILL FURNISH, WITHOUT CHARGE, A COPY
OF SUCH AGREEMENT TO THE HOLDER OF THIS CERTIFICATE UPON
WRITTEN REQUEST THEREFOR."
7. Unless the transfer by the undersigned of his or its Holdings Common
Stock has been registered under the Act or is a sale made in conformity with the
applicable provisions of Rule 145 or Rule 144, Holdings reserves the right to
put the following legend on the certificates issued to any transferee of the
undersigned:
"THE SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN
REGISTERED UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE
"ACT"), OR ANY OTHER SECURITIES LAWS AND MAY NOT BE OFFERED
FOR SALE, SOLD, TRANSFERRED, ASSIGNED, HYPOTHECATED OR
OTHERWISE DISPOSED EXCEPT (I) UPON EFFECTIVE REGISTRATION OF
THE SECURITIES UNDER THE ACT AND OTHER APPLICABLE SECURITIES
LAWS COVERING SUCH SECURITIES, OR (II) UPON ACCEPTANCE BY THE
COMPANY OF AN OPINION OF COUNSEL IN SUCH FORM AND BY SUCH
COUNSEL, OR OTHER DOCUMENTATION, AS IS SATISFACTORY TO COUNSEL
FOR THE COMPANY TO THE EFFECT THAT SUCH REGISTRATION IS NOT
REQUIRED."
8. The legends set forth in paragraphs 6 and 7 above shall be removed
and any stop transfer instructions terminated upon delivery of substitute
certificates without such legend if the undersigned shall have delivered to
Holdings a copy of a letter from the staff of the SEC, or an opinion of counsel
in form and substance reasonably satisfactory to Holdings, to the effect that
such legend is not required for purposes of the Act.
9. The undersigned is, as of the Closing, the beneficial owner of (i.e.
has sole or shared voting or investment power with respect to) all the shares of
Holdings Common Stock and options to purchase shares of Holdings Common Stock
indicated on the last page hereof. Except as set forth on the last page hereof,
the undersigned does not own beneficially any shares of Holdings Common Stock or
any other equity securities of Holdings or any options, warrants or other rights
to acquire any equity securities of Holdings.
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10. The undersigned agrees that during the period commencing on the
date hereof and ending at such time as financial results covering at least
thirty (30) days of combined results of operations of the ADCS Group and the
ATMI Group have been published by Holdings, in the form of a quarterly earnings
report, an effective registration statement filed with the SEC, a report to the
SEC on Form 10-K, 10-Q or 8-K, or any other public filing or announcement which
includes the combined results of operations, he or it will not engage in any
sale, exchange, transfer, pledge, disposition of or grant of any option, the
establishment of any "short" or put-equivalent position with respect to, or
enter into any similar transaction intended to reduce the risk of the
undersigned's ownership of, or investment in, any of the following:
(a) any shares of Holdings Common Stock which the undersigned
may acquire in connection with the Exchange, or any securities which
may be paid as a dividend or otherwise distributed thereon or with
respect thereto or issued or delivered in exchange or substitution
therefor (all such shares and other securities being referred to
herein, collectively, as "Restricted Securities"), or any option, right
or other interest with respect to any Restricted Securities; or
(b) any other shares of Holdings Common Stock or other
Holdings equity securities which the undersigned purchases or otherwise
acquires after the execution of this Affiliate Agreement;
provided that the foregoing shall not be deemed to limit the undersigned's right
to exercise any conversion, liquidation preference or similar rights that the
undersigned may have pursuant to Holdings' Certificate of Incorporation.
11. Holdings agrees to publish, as promptly as practicable following
the Reorganization, financial results covering at least thirty (30) days of
combined operations of the ADCS Group and the ATMI Group in the form of a
quarterly earnings report, an effective registration statement filed with the
SEC, a report to the SEC on Form 10-K, 10-Q or 8-K, or any other public filing
or announcement that includes the combined results of operations of Holdings,
the ATMI Group and the ADCS Group; provided, however, that Holdings shall be
under no obligation to publish any such financial information other than with
respect to a fiscal quarter of Holdings.
12. This Affiliate Agreement may not be amended or waived other than by
a writing signed by the undersigned and Holdings.
13. In the event they were to become available, the undersigned will
not exercise dissenters' rights in connection with the Merger or the Exchange.
14. The undersigned has no present plan or intention to engage in a
direct or indirect sale, exchange, transfer, redemption, disposition or
conveyance or any other transaction that would have the effect of reducing in
any way the undersigned's risk of ownership by short sale or otherwise
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including, but not limited to, distributions by a partnership to its partners
and by a corporation to its stockholders, of the shares of Holdings Common Stock
to be received by the undersigned in the Exchange, but without prejudice to his
or its right to sell into the public market consistent with ordinary investment
discretion based upon future circumstances of Holdings and the undersigned. The
undersigned acknowledges that the undersigned is giving this representation and
covenant to enable Ernst & Young LLP to opine that the Exchange constitutes a
tax-free transaction under Section 351 of the Code and further recognizes that
significant adverse tax consequences might result if such representation is not
true.
15. The undersigned is not aware of, or participating in, any plan of
any other stockholder of the Company to engage in a sale of shares of Holdings
Common Stock that will be received in the Exchange or otherwise.
16. Notices to the undersigned or Holdings hereunder shall be given in
the manner set forth in the Registration Rights Agreement. Any waiver, amendment
or modification of this Agreement shall be made in the manner set forth in the
Registration Rights Agreement.
[signature page follows]
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NUMBER OF SHARES OF HOLDINGS COMMON STOCK
BENEFICIALLY OWNED BY THE SIGNING STOCKHOLDER:
3,741,305
NUMBER OF SHARES OF HOLDINGS COMMON STOCK
SUBJECT TO OPTIONS
BENEFICIALLY OWNED BY THE SIGNING STOCKHOLDER:
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Very truly yours,
Xxxxxxx X. Xxxxxxx
------------------
(print name of stockholder above)
By: /s/ Xxxxxxx X. Xxxxxxx
-----------------------------
Name: Xxxxxxx X. Xxxxxxx
Title:
(if applicable)
Accepted this 10th day of
October, 1997
ATMI, Inc.
By: /s/ E. G. Banucci
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Name: E. G. Banucci
Title: President
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ADCS AFFILIATES
SHARES OF HOLDINGS
NAME COMMON STOCK
---- BENEFICIALLY OWNED
------------------
Xxxxxxx X. Xxxxxxx 3,741,305
F. H. S. Investments, Ltd. 626,534
Xxxxxxxxx X. Xxxxxxx 0
Xxxxxxx XxXxxxx 626,534
Xxxxxxxxx X. Xxxxxxx 179,009
Xxxxxx X. Xxxxxxx 89,504
Xxxxxx X. Xxxxx 0
