Exhibit 10.1
EMPLOYMENT AGREEMENT
December 31, 2004
Xxxxxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Dear Xxxxxxx:
ATMI, Inc., a Delaware corporation (the "Company"), wishes to obtain and
you wish to provide your services as an employee of the Company on the terms and
subject to the conditions set forth herein. As used herein, the "ATMI Group"
means the Company, Advanced Technology Materials, Inc., a Delaware corporation
("ATMI Sub"), and their respective subsidiaries and affiliates.
This Agreement is intended to supersede your Employment Agreement with
Advanced Technologies Materials, Inc., dated April 26, 2000. Upon the execution
of this Agreement and the Novation Agreement included below, your April 26, 2000
Employment Agreement with Advanced Technologies Materials, Inc. will be
superceded and have no further effect.
Accordingly, in consideration of the premises and the mutual promises
and covenants contained herein and for other good and valuable consideration,
the receipt and sufficiency of which are hereby expressly acknowledged, the
Company and you intending to be legally bound agree as follows:
1. Position and Responsibilities.
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1.1 You shall serve as President and Chief Executive Officer of the
Company and ATMI Sub. You shall perform your duties at the Company's Danbury,
Connecticut headquarters or at such other place as you and the Company shall
mutually agree. You shall travel from time to time as reasonably required in
connection with the performance of your duties. You shall report directly to the
Boards of Directors of the Company and ATMI Sub.
1.2 Subject to Section 5, you will, to the best of your ability, devote
your full business time and good faith efforts to the performance of your duties
hereunder and to the business and affairs of the ATMI Group. You agree to serve
as an officer of the Company and ATMI Sub, subject to being elected and
re-elected to such office by their respective Boards of Directors, and to
perform such executive duties consistent with your position as President and
Chief Executive
Officer of the Company and ATMI Sub as may reasonably be assigned to you by
their respective Boards of Directors from time to time.
1.3 You will duly, punctually and faithfully perform and observe any and
all reasonable rules and regulations that the ATMI Group may now or shall
hereafter establish (if and once communicated to you) governing the conduct of
the ATMI Group's business and generally applicable to similarly situated
employees or officers of the ATMI Group.
2. Term of Employment
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2.1 The term of your employment shall be two (2) years (the "Initial
Term") commencing on January 1, 2005 (the "Effective Date"), and ending on the
second anniversary thereof, provided your employment shall automatically
terminate upon your death and may be terminated at any time as provided in and
subject to the terms and conditions set forth in this Section 2. At the end of
the Initial Term, unless the parties mutually agree in writing to renew, extend,
or modify the provisions hereof, your employment shall continue "at will,"
subject to the Company's obligations as hereinafter provided in this Section 2,
and the other terms and conditions of this Agreement (as then in effect) shall
continue. Section 2.5, 2.6 and 2.7 will apply to termination of your employment
after the Initial Term by the Company without Cause (other than pursuant to
Section 2.2(c)) or by you pursuant to Section 2.3.
2.2 The Company shall have the right, on written notice to you specifying
the reason, to terminate your employment:
(a) immediately for Cause (as defined in Section 2.4), subject to the cure
rights set forth in Section 2.4 below, or
(b) subject to Section 2.5 hereof, at any time without Cause, or
(c) in the event of your total disability meaning that, in the reasonable
determination of the Board of Directors of the Company, a mental or physical
condition renders you unable or incompetent to carry out the essential functions
of your position (with reasonable accommodation to the extent required pursuant
to the Americans with Disabilities Act) for a period of ninety (90) consecutive
days; provided that, if the ATMI Group's long-term disability ("LTD") program
now or later requires a disability to continue for more than 90 days to be
eligible for LTD benefit coverage, you shall be allowed to take unpaid leave of
absence in lieu of termination under Section 2.2(b) or (c) until such time as
you qualify for LTD benefits if such leave will enable you to so qualify.
2.3 You shall have the right to terminate your employment for "Good
Reason," which shall mean a resignation of your employment following: (a) any
material reduction in your title, position, duties or authority as described
herein (except in connection with a termination pursuant to Section 2.2(a) or
(c)), including, without limitation, any failure by the Boards of Directors of
the Company or ATMI Sub to elect or re-elect you to your position as President
and Chief Executive Officer; (b) any reduction in your Base Salary under Section
3.1 below; (c) any relocation of your primary place of employment more than 50
miles without your consent, (d) any other material breach by the Company of any
of its obligations to you under this Agreement; or (e) any failure of the
Company to have any successor to all or substantially all of the business
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and properties of the Company assume all of the liabilities and obligations of
the Company under this Agreement (and any stock option or restricted stock
agreement referred to herein, unless such awards have fully vested) provided, in
each case, that a prior written notice specifying the reasons within one hundred
eighty (180) days after such breach, and an opportunity to cure such breach (if
curable), shall be afforded the Company and "Good Reason" shall exist only if
the Company shall fail to cure such breach within thirty (30) days after its
receipt of such prior notice.
2.4 The term "Cause" shall mean (i) your conviction of or plea of nolo
contendere with respect to any crime constituting a felony in the jurisdiction
involved (whether or not involving the ATMI Group but excluding traffic offenses
which do not bring you or the ATMI Group into disgrace or disrepute); (ii) your
engaging in any wrongful act or act of moral turpitude that would be reasonably
likely to materially harm the business or reputation or business relationships
of the ATMI Group or yourself; (iii) willful misconduct or gross neglect in the
performance of your duties; (iv) any willful failure or refusal to perform such
duties as may reasonably be assigned to you by the Board of Directors of ATMI or
ATMI Sub pursuant to this Agreement; or (v) a material breach by you of any
provision of this Agreement or the published policies of the ATMI Group, as
amended from time to time; provided, however, that with respect to clauses (ii),
(iii), (iv) or (v), you shall have received written notice from the Company
setting forth the alleged act or failure to act constituting "Cause" hereunder,
and, if such act or failure to act is susceptible of cure, you shall not have
cured such act or failure to act within thirty (30) days of such notice. For
purposes of this Section 2.4, an action or inaction shall not be treated as
"willful misconduct" if authorized by the Board of Directors of the Company or
taken in the good faith belief that it was in, or not opposed to, the best
interests of the ATMI Group.
2.5 Subject to Section 2.7 and in addition to any amounts specified in
Section 2.8, in the event of the termination of your employment pursuant to
either Section 2.2(b) or Section 2.3: (i) the Company shall pay to you an
aggregate of twenty-four (24) months' Base Salary at the time of termination and
(ii) if you elect COBRA continuation of your medical and/or dental insurance
benefits, the Company shall pay the premiums associated with such benefits on
the same basis the Company would have paid such premiums during such period had
you continued to be an employee of the Company. The amount described in clause
(i) above shall be payable in installments on such date or dates on which Base
Salary would have been paid to you had your employment not been terminated.
2.6 Subject to Section 2.7, in the event of the termination of your
employment pursuant to either Section 2.2(b) or Section 2.3 within 548 days
after a "change in control" of the Company (a) all stock options held by you to
purchase shares of the Company common stock shall become fully vested and
immediately exercisable and shall remain exercisable for no less than one year
after such termination, notwithstanding the vesting and exercise provisions of
any stock option award agreement concerning such options but subject to the
expiration date provided in such option agreement without regard to a
termination of employment, and all restricted stock issued to you in connection
with your employment shall be fully vested notwithstanding the vesting
provisions of any restricted stock agreement concerning such restricted stock;
and (b) you will be entitled at a minimum to the target amount under any bonus
plans then in effect as if fully earned. To the extent that the vesting of all
or some of your restricted stock, as provided in the preceding sentence, is not
permitted under Section 7.3 of the
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ATMI, Inc. 2003 Stock Plan (the "2003 Plan") or a comparable provision of any
other plan under which such shares are granted, such shares shall not vest. In
lieu thereof, the Company will pay you within ten (10) days after your
termination of employment an amount in cash equal to the fair market value as of
the date of your termination of employment of those restricted shares that do
not vest, determined pursuant to Section 6.1(c) of the 2003 Plan or a comparable
provision of any other plan under which such shares are granted. Benefits
payable under this Section 2.6 or Section 2.5 or Section 2.8 upon or following a
change in control may subject you to an excise tax on "excess parachute
payments" under Section 4999 of the Internal Revenue Code. The Company will
reimburse you for any such excise tax imposed on a "fully grossed up basis,"
such that you will receive the same net amount (after payment of all income,
employment and excise taxes imposed with respect to such benefits and such tax
reimbursements, and of any interest or penalties relating to any such excise
taxes or to the income tax due on any such tax reimbursements (other than
interest or penalties arising as a result of your failure to timely pay such
excise or income taxes with respect to which you had previously received
reimbursement)) as you would have received if such excise tax had not been
imposed in the first place. For purposes of this Section 2.6, 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 Securities
Exchange Act, becomes the beneficial owner (as defined in Rule 13d-3 under the
Securities 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; (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 Effective Date, 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 Effective
Date or whose appointment or election or nomination for election was previously
so approved.
2.7 As a condition to your receipt of any payments and benefits provided
for in Section 2.5, you must timely execute a general release agreement, in a
form reasonably satisfactory to the Company, releasing any and all claims
arising out of or related to your employment (subject to the limitations set
forth in this Section 2.7), provided that such requirement shall not apply after
a change in control of the Company as defined in Section 2.6 above. The form and
terms of such release shall not be unreasonable, and shall be no less favorable
to you than those applied to any other executive officer of the Company during
the preceding two year period. Such release shall not require you to waive any
payments or benefits due or other rights upon termination pursuant to Section
2.2(b) or Section 2.3 as expressly
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provided in this Agreement or in respect of stock options, restricted stock or
benefit plans and arrangements as expressly provided in this Agreement, or, as
expressly provided in the applicable documents governing such plans or
arrangements. The terms of such release shall not be inconsistent with the terms
of this Agreement, and shall not impose any financial, non-compete or
non-solicit obligations or conditions on you that are not already expressly
imposed by this Agreement.
2.8 Upon termination of your employment for any reason, (i) you shall be
entitled to receive accrued salary to the date of termination of employment plus
any previously awarded but not yet paid bonus for any completed fiscal year;
(ii) you shall be entitled to reimbursement for business expenses incurred
through the date of termination consistent with and subject to the Company's
policies and the terms of this Agreement; and (iii) your rights under employee
benefits plans and arrangements of any members of the ATMI Group shall be
determined in accordance with the provisions of such plans and arrangements and
applicable law except to the extent this Agreement expressly provides otherwise.
Upon termination of your employment, you shall not be entitled to any other
payment or compensation from any member of the ATMI Group in respect of your
employment or the termination thereof except (in the case termination pursuant
to Section 2.2(b) or 2.3) as provided in Sections 2.5 and 2.6 (if applicable).
No later than ten (10) days after the date of termination of your employment for
any reason, you shall return to the Company all records and other personal
property of the ATMI Group in your possession or control, including all
confidential, proprietary or trade secret information of the ATMI Group but you
shall not be required to return copies of this Agreement, any other agreements
between you and any member of the ATMI Group and any materials describing the
benefit plans or arrangements in which you are participating.
2.9 You shall have no duty to mitigate the severance amounts or any other
amounts payable to you hereunder, and such amounts shall not be subject to
reduction for any compensation or benefits received by you from employment in
any capacity or other source following the termination of your employment with
the ATMI Group.
3. Compensation
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3.1 The Company shall pay to you for the services to be rendered hereunder
a Base Salary at an annual rate of $475,000. Such Base Salary shall be payable
periodically in conformity with the Company's payroll practices for executives
as modified from time to time but not less frequently than monthly. Such Base
Salary may be increased but not decreased from time to time as determined by the
Company in its discretion (such base salary as it is so increased, your "Base
Salary").
3.2 You shall be entitled to participate in the ATMI Management Incentive
Compensation Plan and any other incentive compensation programs for similarly
situated executives of the ATMI Group. For calendar years 2005 and 2006, you
will have an incentive compensation award opportunity with a target of 90% of
Base Salary and a maximum bonus opportunity of 180% of Base Salary. In
connection with this incentive compensation opportunity, it is expected that you
will receive a letter on or about January 1 of each year, reflecting your MBO
goals for such year. The actual amount of any incentive compensation
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award to you will be in the discretion of the Board of Directors of the Company
or an appropriate committee thereof.
3.3 The Company's Compensation Committee has determined to grant to you as
of the Effective Date, the following grants pursuant to the ATMI 2003 Stock
Plan: (i) an option to purchase 30,000 shares of Company common stock at an
exercise price equal to the closing price on that day in the form of Annex A
(the "Option Grant Agreement"); and (ii) an award of 70,000 shares of restricted
stock in the form of Annex B (the "Restricted Stock Grant Agreement"), which
shall each be subject to Section 2.6 above.
4. Other Benefits
--------------
4.1 You shall be entitled to vacation in accordance with the vacation
policy of the ATMI Group applicable to similarly situated executives as the same
may be in effect from time to time, but no less than four weeks per year,
without loss of compensation or other benefits to which you are entitled under
this Agreement, to be taken at such times as you may reasonably select with
carryover to the extent permitted by Company policy.
4.2 You will be eligible to participate in all other employee benefits and
perquisites generally available to similarly situated officers or employees of
the ATMI Group, as the same may be in effect from time to time. In addition, you
shall have a perquisites allowance of $25,000 per calendar year to be applied
against the following types of expenses incurred by you during such year: car
allowance; personal financial planning; supplemental disability, life, or health
insurance; legal counseling; club membership; and first class travel.
4.3 You shall be eligible to receive additional compensation, including
grants of employee stock options and/or restricted stock, as determined by the
Compensation Committee of the Board of Directors of the Company in its
discretion.
4.4 You shall be entitled to be reimbursed for all reasonable and
necessary expenses incurred in connection with the performance of your duties
hereunder provided that you shall, as a condition of reimbursement, submit
verification of the nature and amount of such expenses in accordance with the
reimbursement policy from time to time adopted by the Company and/or ATMI Sub.
4.5 All compensation payable to you in connection with your employment
hereunder shall be subject to all legally required and customary withholdings.
5. Other Activities During Employment
----------------------------------
5.1 Except with the prior written consent of the Company's Board of
Directors, which consent shall not be unreasonably withheld, you will not during
the term of this Agreement undertake or engage in any other employment or
occupation. This provision shall not be deemed to preclude membership in
professional societies, lecturing or the acceptance of honorary positions, or
participation in charitable and other community activities that are in any case
incidental to your employment by the Company, which are not adverse or
antagonistic to or competitive with the ATMI Group, its business or prospects,
financial or otherwise and are
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consistent with your obligations regarding the confidential, proprietary and
trade secret information of the Company and its subsidiaries and affiliates.
5.2 Subject to Section 5.3, during the term of your employment by the
Company, except on behalf of the ATMI Group, you will not, directly or
indirectly, whether as an officer, director, stockholder, partner, proprietor,
associate, representative or otherwise, provide services to or have a financial
interest in any other person, corporation, firm, partnership or other entity
whatsoever that directly competes with the ATMI Group, in any part of the world,
in any line of business engaged in (or planned to be engaged in) by the ATMI
Group.
5.3 Notwithstanding the foregoing, this Section 5 shall not prohibit you
from owning (i) as a passive investor only, an aggregate of not more than one
percent (1%) of the total stock or equity interests or publicly-traded options
to purchase stock of any publicly-traded company or partnership (and employee
stock options of a former employer currently held by you), or (ii) stock or
equity interests owned in publicly-available mutual funds or other similar
investment vehicles.
6. Former Employment
-----------------
6.1 You represent and warrant that your employment by the Company and
performance of your obligations hereunder will not conflict with any agreement
to which you are a party.
6.2 You agree that you will not wrongfully use any confidential
information obtained from any prior employment or service relationship in
connection with your employment by the Company.
7. Confidentiality.
---------------
7.1 You recognize that during the course of your employment hereunder, you
will have access to confidential and proprietary information, including, but not
limited to, business documents or information, research and marketing data,
customer lists, computer programs, processes, techniques, know-how, trade
secrets, formulae, manufacturing processes and inventions, as well as certain
information concerning employees, partners or customers of the ATMI Group. This
information shall be known as "Confidential Information" and shall include all
information described in the preceding sentence, whether previously existing,
now existing or arising hereafter, whether conceived or developed by others or
by you alone or with others, and whether or not conceived or developed during
regular business hours. Confidential Information does not include information
that is publicly known or generally known within the ATMI Group's industry in
either case without wrongful disclosure by you.
7.2 Subject to Section 7.4, you will not, either during the term of your
employment with the Company or thereafter, remove, disclose or cause the
disclosure of any Confidential Information except as removal or disclosure may
be required or appropriate in connection with your work for the Company. You
will take all reasonable steps necessary to ensure that Confidential Information
in your possession will not become known to third parties without the Company's
prior approval except in the proper conduct of your duties.
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7.3 You will not, either during the term of your employment with the
Company or thereafter, directly or indirectly, without authorization which after
your term of employment shall be in writing, use or cause or permit the use of
Confidential Information either for your own benefit or for the benefit of
anyone other than the ATMI Group.
7.4 The provisions of this Section 7 shall not prohibit you from
disclosing Confidential Information to the extent required by law or regulation
or any court order or any government or administrative agency order provided
that, in the event that any such disclosure is required, you give the Company
prompt notice thereof and cooperate as reasonably requested by the Company with
any actions to limit or prevent such disclosure or to obtain a protective order
or similar arrangement.
8. Post-Employment Activities.
--------------------------
8.1 You understand and acknowledge that the provisions of this Section 8
are necessary to protect the legitimate business interests of the ATMI Group and
are fair and reasonable for numerous reasons, including your receipt of the
consideration expressed in this Agreement. In addition, as a result of your
executive position with the Company, you will have access to significant
confidential, proprietary or trade secret information of the ATMI Group, so
that, if you were employed by a competitor of the ATMI Group, there would be a
substantial risk to the ATMI Group of your use of its confidential, proprietary
or trade secret information. Likewise, you acknowledge that given your access to
confidential and proprietary information of the ATMI Group and access to the
employees and customers of the ATMI Group, solicitation of employees and other
activities of the type described in this Section could be particularly damaging
to the ATMI Group. Based on the foregoing, for a period of twenty-four (24)
months after the termination of your employment with the Company, absent the
prior approval of the Company's Board of Directors, you will not directly or
indirectly:
(a) render any services to, or engage in any activities for, any other
person, firm, corporation or business organization which is a supplier of
specialty materials to the semiconductor industry, which services or activities
relate to any product, process, technology or service in existence or under
development which substantially resembles or competes with a product, process,
or service of the ATMI Group in existence or under development;
(b) solicit, induce or encourage any employee of the ATMI Group to leave
his or her employ or offer or cause to be offered employment to any person who
is or was employed by the ATMI Group at any time during the six (6) months prior
to the termination of your employment with the ATMI Group; the foregoing does
not apply to employees who have been terminated by the ATMI Group or to your use
of general advertising which is not specifically directed at ATMI Group
employees;
(c) entice, induce or encourage any of the ATMI Group's other employees or
any other person or entity to engage in any activity which, were it done by you,
would violate any provision of this Section 8; or
(d) otherwise wrongfully interfere with or disrupt the business or
activities of the ATMI Group.
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8.2 Upon your written request to the Company specifying the activities
proposed to be conducted by you, the Company may in its discretion, subject to
the concurrence of the Board of Directors of the Company, give you written
approval(s) to engage personally in any activity or render services referred to
in Section 8.1 upon receipt of written assurances (satisfactory to the Company
and its counsel in their discretion) from you and from your prospective
employer(s) that the integrity of the provisions of Section 7 and Section 8.1
will not in any way be jeopardized or violated by such activities; provided,
however, the burden of so establishing the foregoing to the satisfaction of the
Company and said counsel shall be upon you and your prospective employer(s).
9. Remedies. Your duties under Section 7 and Section 8 shall survive
termination of your employment with the Company. You acknowledge and agree that
any breach by you of any of the provisions of Section 7 or Section 8.1 of this
Agreement will result in irreparable and continuing damage to the Company and
that a remedy at law for any breach or threatened breach by you of the
provisions of Section 7 or Section 8.1 would be inadequate, and you therefore
agree that the Company shall be entitled to temporary, preliminary and permanent
injunctive relief in case of any such breach or threatened breach, without any
requirement of proving actual damages or posting of bond. Nothing in this
Agreement shall be construed to prohibit the Company from pursuing any other
remedy available to it at law or in equity, the parties having agreed that all
remedies are cumulative.
10. Miscellaneous.
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10.1 This Agreement and the rights and obligations of the parties hereto
shall bind and inure to the benefit of any successor or successors of the
Company by reorganization, merger, consolidation or other business combinations
and any assignee of all or substantially all of its business and properties or
the business or properties of the Company or any subsidiary or division thereof,
but, except as to any such successor or assignee of the Company, neither this
Agreement nor any rights or benefits hereunder may be assigned by the Company or
you. The foregoing shall not limit the entitlement of your estate upon your
death (or your legal representative in the event of your disability) to enforce
your rights hereunder (including but not limited to your right to payment of
amounts provided hereunder) in accordance with the terms hereof.
10.2 In case any one or more of the provisions contained in this Agreement
shall, for any reason, be held to be invalid, illegal or unenforceable in any
respect, such invalidity, illegality or unenforceability shall not affect the
other provisions of this Agreement. If moreover, any one or more of the
provisions contained in this Agreement shall for any reason be held to be
excessively broad as to duration, geographical scope, activity or subject, the
parties expressly agree that a court may rewrite and modify such provisions so
as to be enforceable to the fullest extent compatible with the applicable law as
it shall then appear.
10.3 All notices, consents, waivers, and other communications under this
Agreement must be in writing and will be deemed to have been duly given when (a)
delivered by hand (with written confirmation of receipt); (b) sent by facsimile
(with written confirmation of receipt) provided that a copy is mailed by
registered mail, return receipt requested, or (c) when received by the
addressee, if sent by a nationally recognized overnight delivery service
(receipt
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requested), in each case to the appropriate addresses and facsimile numbers set
forth below (or to such other addresses and facsimile numbers as a party may
designate by notice to the other parties):
If to the Company:
ATMI, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile No.: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxx, CFO
If to you:
Xxxxxxx X. Xxxxxxx
000 Xxxx Xxxxx Xxxx
Xxxxxxxxx, XX 00000
Facsimile No.:
10.4 This Agreement may be waived only by a writing signed by the waiving
party. If either party shall waive any breach of any provision of this
Agreement, such party shall not thereby be deemed to have waived any preceding
or succeeding breach of the same or any other provision of this Agreement.
10.5 The headings of the sections hereof are inserted for convenience only
and shall not be deemed to constitute a part hereof nor to affect the meaning
hereof.
10.6 This Agreement shall be governed by and construed (both as to
validity and performance) and enforced in accordance with the laws of the State
of Connecticut applicable to agreements made and to be performed wholly within
such jurisdiction. Each party hereby agrees, to accept the non-exclusive
jurisdiction of the courts of the State of Connecticut, and those of the United
States of America situated in the State of Connecticut, for the adjudication of
any dispute arising out of this Agreement. Each party hereby irrevocably (1)
agrees that any suit, action or other legal proceeding arising out of this
Agreement may be brought in any Connecticut or United States federal court
located in Connecticut; (2) consents to the jurisdiction of each such court in
any such suit, action, or legal proceeding; (3) waives any objection which it
may have to the laying of venue of any such suit, action, or legal proceeding in
any of such courts; and (4) agrees that Connecticut is the most convenient forum
for litigation of any such suit, action or legal proceeding.
10.7 This Agreement, together with the Option Grant Agreement, the
Restricted Stock Grant, and the Proprietary Information and Inventions Agreement
represent the entire agreement of the parties with respect to the subject matter
hereof and thereof and may not be amended, supplemented, cancelled or discharged
except by written instrument executed by both parties hereto. This Agreement
supersedes any and all prior agreements between the Company and you with respect
to the matters covered hereby.
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10.8 This Agreement may be executed in counterparts, each of which when so
executed and delivered shall constitute a complete and original instrument but
all of which together shall constitute one and the same agreement, and it shall
not be necessary when making proof of this Agreement or any counterpart thereof
to account for any other counterpart.
10.9 You acknowledge that you had the opportunity to have this Agreement
reviewed by an attorney prior to your execution of this Agreement.
10.10 You will be entitled to full indemnification with respect to any and
all claims and liabilities (and all related legal fees and expenses reasonably
incurred by you or on your behalf) asserted against you in your capacity as an
officer or director of the Company or ATMI Sub or any member of the ATMI Group
to the maximum extent provided in their charter documents as amended from time
to time, copies of which (as to the Company and ATMI Sub) have been provided to
you, and in accordance with Delaware law. You will be entitled to coverage as an
officer of the Company and ATMI Sub pursuant to director and officer liability
insurance coverage obtained by members of the ATMI Group on the same basis as
such coverage is made available to similarly situated officers of ATMI Group
companies.
If you are in agreement with the foregoing, please so indicate by signing
and returning the enclosed copy of this letter.
ATMI, INC.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
Accepted and agreed
/s/ Xxxxxxx X. Xxxxxxx
-------------------------
Xxxxxxx X. Xxxxxxx
Date: December 31, 2004
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NOVATION AGREEMENT
Advanced Technology Materials, Inc., a Delaware corporation, agrees and accepts
that the Employment Agreement, dated October 10, 1997, between Advanced
Technology Materials, Inc. and Xxxxxxx X. Xxxxxxx is hereby superceded and of no
further force and effect.
Advanced Technology Materials, Inc.
By: /s/ Xxxx Xxxxxxx
--------------------------------
Name: Xxxx Xxxxxxx
Title: Chief Executive Officer
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