ATMI, INC. NON-QUALIFIED STOCK OPTION AGREEMENT FOR NON-EMPLOYEE DIRECTORS
Exhibit 10.29
Date of Grant:
ATMI, INC.
NON-QUALIFIED STOCK OPTION AGREEMENT
FOR NON-EMPLOYEE DIRECTORS
FOR NON-EMPLOYEE DIRECTORS
1. | Grant of Option. |
ATMI, INC., a Delaware corporation (the “Company”), hereby grants to
(the “Participant”), an option, pursuant to the Company’s Stock Plan (the
“Plan”), to purchase an aggregate of shares of Common Stock, $.01 par value
(“Common Stock”), of the Company at a price of per share, purchasable as set forth
in and subject to the terms and conditions of this option agreement (this “Agreement”) and
the Plan. The date of grant of this option is hereinafter referred to as the “date of grant” and
the date ending twelve months thereafter and each subsequent successive twelve-month period is
hereinafter referred to as the “first anniversary date”, “second anniversary date”, “third
anniversary date”, etc.
2. | Incorporation of Plan. |
All terms, conditions and restrictions of the Plan are incorporated herein and made part
hereof as if stated herein. If there is any conflict between the terms and conditions of the Plan
and this Agreement, the terms and conditions of the Plan, as interpreted by the Board of Directors
of the Company or the Compensation Committee of the Board of Directors, shall govern. Except as
otherwise provided herein, all capitalized terms used herein but not otherwise defined shall have
the respective meanings given to such terms in the Plan.
3. | Exercise of Option and Provisions for Termination. |
(a) Vesting. Except as otherwise provided herein or in the Plan, this option shall first be
exercisable with respect to all of the shares of Common Stock subject hereto on the first
anniversary date, and shall remain exercisable until the tenth anniversary date. In no event may
this option be exercised at any time after the tenth anniversary date.
(b) Method of Exercise. Subject to the conditions hereof, this option shall be exercisable
from time to time by the Participant giving written notice of exercise to the Company, specifying
the number of shares to be purchased and the purchase price to be paid therefor and accompanied by
payment in accordance with Section 4 hereof. Such exercise shall be effective upon receipt by the
Treasurer of the Company of the written notice together with the required payment. The Participant
shall be entitled from time to time to purchase less than the number of shares covered hereby,
provided that no partial exercise of this option shall be for less than 10 whole shares.
(c) Termination of Service. Except as provided in Section 3(f) below, if the Participant’s
service as a director of the Company terminates for any reason other than retirement, change of
control, total disability or death, this option shall immediately terminate if the option is not
then exercisable. If the option is exercisable on the date of termination of
service as a director, the option shall remain exercisable during the three-month period following the date of
termination, at which time it shall terminate. Notwithstanding the foregoing, in no event may the
option be exercised after the tenth anniversary date. If the Participant dies during such
three-month period, this option shall be exercisable by the Participant’s personal representatives,
heirs or legatees for the remainder of such three-month period.
(d) Death. If the Participant dies while a director of the Company, this option shall
immediately terminate if the option is not then exercisable. If the option is exercisable on the
date of death, the option shall remain exercisable by the Participant’s personal representatives,
heirs or legatees until the tenth anniversary date.
(e) Retirement/Disability. In the event the Participant’s service as a director of the
Company terminates by reason of the Participant’s retirement or total disability, this option shall
immediately terminate if the option is not then exercisable. If the option is exercisable on the
date of termination of service, the option shall remain exercisable by the Participant until the
tenth anniversary date, or, if the Participant dies before the tenth anniversary date, by the
Participant’s personal representatives, heirs or legatees until the tenth anniversary date. For
purposes of this Section 3(e), “retirement” shall mean the Participant’s voluntary resignation from
the Company’s Board of Directors (including a decision not to stand for reelection) either (i) at
age 62 or above and after a minimum of five years of service as an employee or director of the
Company or any of its subsidiaries, or (ii) after a minimum of nine years of service as a director
of the Company; and “total disability” shall mean a disability which, in the reasonable opinion of
the Board of Directors, renders the Participant unable or incompetent to carry out the
Participant’s duties, responsibilities and assignments for a period of ninety (90) consecutive
days.
(f) Voluntary Termination. In the event of the Participant’s voluntary termination of
membership on the Board of Directors of the Company, other than as a result of retirement or total
disability, the Board of Directors may, by giving written notice to the Participant, provide that
any portion of this option that was otherwise exercisable on the date of termination of the
Participant’s directorship may be exercised within a one year period following the date on which
the Participant ceased to be a director, as set forth in written notice to the Participant, but in
no event after the tenth anniversary date. If the Participant dies during such period, this option
shall be exercisable by the Participant’s personal representatives, heirs or legatees, to the same
extent that the Participant could have exercised this option on the date of his or her death. This
option or any unexercised portion hereof shall terminate unless so exercised prior to the
expiration of ten years from the date of its grant.
(g) Change in Control. In the event the Participant is removed as a director of the Company
in connection with a change in control of the Company or at the first shareholder’s meeting at
which directors are elected following such a change in control, this option shall be immediately
exercisable on the effective date of such termination of service as a director. Unless the Board
of Directors determines otherwise pursuant to clauses (ii) or (iii) of the section of the
Plan titled “Reorganization,” this option shall remain exercisable until the first anniversary
of such change in control, but in no event after the tenth anniversary date. If the Participant
dies during such one-year period, this option shall be exercisable by the Participant’s personal
representatives, heirs or legatees for the remainder of the one-year period or until the tenth
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anniversary date, if earlier. For purposes of this Section 3(g), a “change in control” of the
Company shall be deemed to have taken place if: (i) a third person, including a “person” as defined
in Section 13(d)(3) of the Exchange Act becomes the beneficial owner (as defined in Rule 13d-3
under the Exchange Act) directly or indirectly, of securities of the Company representing
twenty-five percent (25%) or more of the total number of votes that may be cast for the election of
the directors of the Company; or (ii) as the result of, or in connection with, any tender or
exchange offer, merger, consolidation or other business combination, sale of assets or one or more
contested elections, or any combination of the foregoing transactions (a “Transaction”) the persons
who were directors of the Company immediately prior to the Transaction shall cease to constitute a
majority of the Board of Directors of the Company or of any successor to the Company; (iii) the
sale of all or substantially all of the assets of the Company (on a consolidated basis) in one or
more related transactions to a person other than such a sale to a subsidiary of the Company which
does not involve a change in the equity holdings of the Company; or (iv) the following individuals
cease, for any reason (other than an act of God), to constitute a majority of the number of
directors of the Company then serving: individuals who, on the date of grant, constitute the Board
of Directors of the Company and any new director (other than a director whose initial assumption of
office is in connection with an actual or threatened election contest, including but not limited to
a consent solicitation, relating to the election of directors of the Company) whose appointment or
election by the Board of Directors of the Company or nomination for election by the Company’s
shareholders was approved by a vote of at least two-thirds (2/3) of the directors then still in
office who either were directors on the date of grant or whose appointment or election or
nomination for election was previously so approved.
4. | Payment of Purchase Price. |
(a) Payment of the purchase price for shares purchased upon exercise of this option shall be
made by delivery to the Company of cash or check payable to the order of the Company in an amount
equal to the purchase price of such shares, or, if the Participant elects and the Company permits,
by delivery of shares of Common Stock of the Company having a fair market value equal in amount to
the purchase price of such shares.
(b) For the purposes hereof, the fair market value of any share of the Company’s Common Stock
to be delivered to the Company in exercise of this option shall be determined in good faith by the
Board of Directors of the Company, in accordance with the terms of the Plan.
(c) If the Participant elects to exercise options by delivery of shares of Common Stock of the
Company, the certificate or certificates representing the shares of Common Stock of the Company to
be delivered shall be duly executed in blank by the Participant or shall be accompanied by a stock
power duly executed in blank suitable for purposes of transferring such shares to the Company.
Fractional shares of Common Stock of the Company will not be accepted in payment of the purchase
price of shares acquired upon exercise of this option.
5. | Delivery of Shares. |
The Company shall, upon payment of the purchase price for the number of shares purchased and
paid for, make prompt delivery of such shares to the Participant, provided that if
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any law or regulation requires the Company to take any action with respect to such shares before the issuance
thereof, then the date of delivery of such shares shall be extended for the period necessary to
complete such action. No shares shall be issued and delivered upon exercise of any option unless
and until, in the opinion of counsel for the Company, any applicable registration requirements of
the Securities Act of 1933, any applicable listing requirements of any national securities exchange
on which stock of the same class is then listed, and any other requirements of law or of any
regulatory bodies having jurisdiction over such issuance and delivery, shall have been fully
complied with.
6. | Non-transferability of Option. |
Except as provided in Sections 3(c), 3(d), 3(e), 3(f) and 3(g) hereof, this option is personal
and no rights granted hereunder shall be transferred, assigned, pledged or hypothecated in any way
(whether by operation of law or otherwise) nor shall any such rights be subject to execution,
attachment or similar process. Upon any attempt to transfer, assign, pledge, hypothecate or
otherwise dispose of this option or of such rights contrary to the provisions hereof, or upon the
levy of any attachment or similar process upon this option or such rights, this option and such
rights shall become null and void.
7. | No Special Employment Rights. |
Nothing contained in the Plan or this Agreement shall be construed or deemed by any person
under any circumstances to entitle the Participant to remain as a member of the Board of Directors
or otherwise to remain in the service of the Company.
8. | Rights as a Stockholder. |
The Participant shall have no rights as a stockholder with respect to any shares which may be
purchased by exercise of this option unless and until a certificate or certificates representing
such shares are duly issued and delivered to the Participant. Except as otherwise expressly
provided in the Plan, no adjustment shall be made for dividends or other rights for which the
record date is prior to the date such stock certificate is issued.
9. | Recapitalization. |
In the event that dividends are payable in shares of Common Stock or in the event there are
splits, sub-divisions or combinations of shares of Common Stock subsequent to the date of grant,
the number of shares subject to this option shall be increased or decreased proportionately, as the
case may be, and the number of shares deliverable upon the exercise thereafter of this option shall
be increased or decreased proportionately, as the case may be, without change in the aggregate
purchase price.
10. | Reorganization. |
Subject to Section 3(g) hereof, in case the Company is merged or consolidated with another
corporation and the Company is not the surviving corporation, or in case the property or stock of
the Company is acquired by any other corporation, or in case of a reorganization or liquidation of
the Company, prior to the termination or expiration of this option, this option shall
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be treated in the manner set forth in Section 10 of the Plan.
11. | Withholding Taxes. |
Whenever shares are to be issued upon exercise of this option, the Company shall have the right to
require the Participant to remit to the Company an amount sufficient to satisfy any federal, state
and local withholding tax requirement prior to the delivery of any certificate or certificates for
such shares.
12. | Miscellaneous. |
(a) Except as provided herein, this Agreement may not be amended or otherwise modified unless
evidenced in writing and signed by the Company and the Participant.
(b) All notices under this Agreement shall be mailed or delivered by hand to the parties at
their respective addresses set forth beneath their names below or at such other address as may be
designated in writing by either of the parties to one another.
(c) This Agreement shall be governed by and construed in accordance with the laws of the State
of Delaware.
(d) No delay or omission to exercise any right, power or remedy accruing to any party hereto
upon any breach or default of any party under this Agreement, shall impair any such right, power or
remedy of such party, nor shall it be construed to be a waiver of any such breach or default, or an
acquiescence therein, or of or in any similar breach or default thereafter occurring, nor shall any
waiver of any single breach or default be deemed a waiver of any other breach or default
theretofore or thereafter occurring. Any waiver, permit, consent or approval of any kind or
character on the part of any party of any breach or default under this Agreement, or any waiver on
the part of any party or any provisions or conditions of this Agreement, must be in a writing
signed by such party and shall be effective only to the extent specifically set forth in such
writing.
(e) This Agreement contains the entire understanding of the parties with respect to its
subject matter. There are no restrictions, agreements, promises, representations, warranties,
covenants or undertakings with respect to the subject matter hereof other than those expressly set
forth herein. This Agreement, including, without limitation, the Plan, supersedes all prior
agreements and understandings between the parties with respect to its subject matter.
(f) This Agreement may be executed in two or more counterparts, each of which shall be deemed
an original, but all of which shall constitute one and the same instrument.
(g) The Participant hereby acknowledges receipt of a copy of the Plan. The Participant hereby
acknowledges that all decisions, determinations and interpretations of the Board of Directors and
the Compensation Committee in respect of the Plan, this Agreement and the option shall be final and
conclusive.
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IN WITNESS WHEREOF, the Company has caused this Agreement to be duly executed by its duly
authorized officer, and the Participant has hereunto signed this Agreement on his own behalf,
thereby representing that he has carefully read and understands this Agreement and the Plan as of
the day and year first written above.
ATMI, INC. |
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By: | Xxxxxxx X. Xxxxxxx | |||
Title: Chief Executive Officer | ||||
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