AFFILIATE AGREEMENT
October 10, 1997
ATMI, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Ladies and Gentlemen:
Pursuant to the terms and conditions of that certain Agreement and Plan
of Merger dated as of the 17th day of May, 1997, as amended by that certain
First Amendment to Agreement and Plan of Merger dated as of the 6th day of
June, 1997 and that certain Second Amendment to Agreement and Plan of Merger
dated as of the 30th day of July, 1997 (as amended, the "Merger Agreement"),
by and among Xxxx Acquisition Corporation, a Delaware corporation ("Merger
Sub"), Advanced Technology Materials, Inc., a Delaware corporation ("ATMI"),
Xxxxxxxx Semiconductor Laboratories, Inc., an Arizona corporation
("Xxxxxxxx"), Xxxxxxxx Semiconductor Laboratories Marketing and Sales, Inc.,
an Arizona corporation ("LSLMS") and you (f/k/a ATMI Holdings, Inc.)
("Holdings"), following the contribution of all of the issued and outstanding
shares of capital stock of LSLMS to Xxxxxxxx, Holdings will acquire Xxxxxxxx
through the merger of Merger Sub with and into Xxxxxxxx (the "Merger"), with
Xxxxxxxx continuing as the surviving corporation and as a wholly-owned
subsidiary of Holdings. Subject to the terms and conditions of the Merger
Agreement, at the Effective Time (as defined in the Merger Agreement), all of
the issued and outstanding shares of capital stock of Xxxxxxxx will be
converted into the right to receive shares of common stock, par value $.01
per share, of Holdings (the "Holdings Common Stock"), on the basis described
in the Merger Agreement.
The undersigned has been advised that as of the date hereof the
undersigned may be deemed to be an "affiliate" of Xxxxxxxx and may be deemed
to be an "affiliate" of Holdings, as the term "affiliate" is (i) defined for
purposes of 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 "Securities Act"), and/or (ii) used
in and for purposes of Accounting Series Releases 130 and 135, as amended,
and Staff Accounting Bulletins 65 and 76 of the SEC. The undersigned
understands that the representations, warranties and covenants set forth
herein will be relied upon by Holdings, ATMI, stockholders of ATMI, Lawrence,
other stockholders of Xxxxxxxx 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 obligations hereunder.
2. The undersigned has carefully read this letter and the Merger
Agreement and all schedules and exhibits thereto and discussed its
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 felt necessary, with his counsel or counsel to Xxxxxxxx.
3. The undersigned shall not make any sale, transfer or other
disposition of Holdings Common Stock in violation of the Securities 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 Merger has
not been registered with the SEC under the Securities Act on a registration
statement on Form S-4. Furthermore, the undersigned has also been advised
that, since the undersigned may be deemed to have been an affiliate of
Xxxxxxxx and may be deemed to be an affiliate of Holdings and the
distribution by the undersigned of any Holdings Common Stock has not been
registered, and is not exempt, under the Securities Act, the undersigned may
not sell, transfer or otherwise dispose of Holdings Common Stock issued to
the undersigned in the Merger unless (i) such sale, transfer or other
disposition has been registered under the Securities Act, (ii) such sale,
transfer or other disposition is made in conformity with the requirements of
Rule 144 promulgated by the SEC under the Securities Act, or (iii) in the
opinion of counsel reasonably acceptable to Holdings, such sale, transfer or
other disposition is otherwise exempt from registration under the Securities
Act. The undersigned hereby agrees to comply with such requirements.
5. From and after the Effective Time for so long as and to the extent
necessary to permit the undersigned to sell any shares of Holdings Common
Stock pursuant to Rule 144 under the Securities Act, Holdings shall use
reasonable efforts to file, on a timely basis, all reports required to be
filed by it with the SEC pursuant to Section 13 of the Exchange Act, so long
as it is subject to such requirement, and to 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 144 and otherwise use its reasonable efforts to permit such
sales pursuant to 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 Merger, and there
will be placed on the certificates for the 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 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
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COPY OF WHICH 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 Holdings Common Stock
has been registered under the Securities Act or is a sale made in conformity
with the applicable provisions of 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 Securities Act.
9. Subject to applicable community property laws, the undersigned is,
as of the Effective Time, the beneficial owner of (i.e., has sole or shared
voting or investment power with respect to) all the shares of Holdings Common
Stock indicated on the last page hereof. Except as set forth on the last
page hereof, the undersigned does not beneficially own 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.
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 operations of Xxxxxxxx and ATMI 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 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 the entry into any
similar transaction intended to reduce the risk of the undersigned's
ownership of, or investment in, any of the following:
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(a) any shares of Holdings Common Stock which the undersigned may
acquire in connection with the Merger, 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
Merger, financial results covering at least thirty (30) days of combined
operations of ATMI and Xxxxxxxx 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 ATMI and Xxxxxxxx; 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 Agreement may not be amended or waived other than by a writing
signed by both 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.
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 transaction that would have the effect of reducing in any
way the undersigned's risk of ownership by short sale or otherwise of the
shares of Holdings Common Stock to be received by the undersigned in the
Merger, except as contemplated by the Registration Rights Agreement between
the undersigned and Holdings of even date. The undersigned acknowledges that
the undersigned is giving this representation and covenant to enable Ernst &
Young LLP to opine that the Merger constitutes a reorganization within the
meaning of Section 368 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 Merger or otherwise.
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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 undersigned:
3,556,000
Very truly yours,
Xxxxxxx X. Xxxxxxxx
----------------------------------------
(print name of stockholder above)
By: /S/ XXXXXXX X. XXXXXXXX
------------------------------------
Name:
Title:
(if applicable)
Accepted this 10th day of
October, 1997, by
ATMI, Inc.
By: /S/ XXXXXX X. XXXXXXX
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President, Secretary, & Treasurer
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