EXHIBIT (c)
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement dated as of October 10, 1997 (the
"Agreement") is entered into by and among ATMI, INC., a Delaware corporation
(the "Company"), and THE STOCKHOLDERS LISTED ON SCHEDULE 1 HERETO (the
"Stockholders").
1. Introduction. The Company, Advanced Technology Materials, Inc.,
Xxxx Acquisition Corporation and Xxxxxxxx (as defined in the Merger Agreement
which is defined below), entered into an Agreement and Plan of Merger dated
as of May 17, 1997, as amended by that certain First Amendment to Agreement
and Plan of Merger, dated as of June 6, 1997 and that certain Second
Amendment to Agreement and Plan of Merger dated as of July 30, 1997 (as
amended, the "Merger Agreement"). At the Closing, as defined in the Merger
Agreement, the Stockholders received an aggregate of 3,628,571 shares of
common stock of the Company, par value $.01 per share (the "Company Common
Stock"), in exchange for all of their Xxxxxxxx Shares, all in accordance with
and subject to the provisions of the Merger Agreement. In satisfaction of
one of the conditions to Closing set forth in the Merger Agreement, the
Company and the Stockholders desire to provide hereunder for the registration
of the Company Common Stock under the Securities Act upon the terms and
conditions set forth herein.
2. Certain Definitions. As used herein, unless the context clearly
requires otherwise, the following terms have the meanings set forth below:
Commission: The Securities and Exchange Commission or any other
federal agency at the time administering the Securities Act.
Exchange Act: The Securities Exchange Act of 1934, as amended, or
any successor federal statute, and the rules and regulations of the
Commission thereunder, all as the same shall be in effect at the time.
Reference to a particular section of the Exchange Act shall include a
reference to the comparable section, if any, of any such successor federal
statute.
Holder: Each initial holder of Registrable Securities and each
assignee or transferee thereof which is assigned or transferred at least
20,000 shares of the Company Common Stock (as adjusted for stock dividends,
stock splits, combinations, recapitalizations and similar events).
Person: An individual, a corporation, an association, a general,
limited or limited liability partnership, a limited liability company, an
unincorporated organization, a business, a government or a political
subdivision thereof or a governmental agency.
Pooling Period: The period beginning at the Effective Time of the
Merger and running through such time as financial results covering at least
30 days of combined operations of the Company and Xxxxxxxx (on a consolidated
basis) shall have been
published by the Company within the meaning of Section 201.01 of the
Commission's Codification of Financial Reporting Policies, which the Company
shall file as promptly as practicable following the Closing.
Registrable Securities: (a) Any shares of the Company Common Stock
received by the Stockholders under the Merger Agreement and (b) any
securities issued or issuable with respect to such shares of the Company
Common Stock by way of a stock dividend or stock split or in connection with
a combination or reclassification of shares, recapitalization, merger,
consolidation or other reorganization or otherwise. Notwithstanding the
foregoing, (i) any securities referred to in the preceding sentence which are
registered on Form S-4 in connection with the Merger Agreement shall not be
Registrable Securities for purposes of Section 3(a) hereof, and (ii) any
particular Registrable Securities shall cease to be Registrable Securities
when (x) a registration statement with respect to the sale of such securities
shall have become effective under the Securities Act and such securities
shall have been disposed of in accordance with such registration statement,
or (y) they shall have been sold pursuant to Rule 144 (or any successor
provision) under the Securities Act.
Registration Expenses: As defined in Section 8 hereof.
Securities Act: The Securities Act of 1933, as amended, or any
successor federal statute, and the rules and regulations of the Commission
thereunder, all as the same shall be in effect at the time. Reference to a
particular section of the Securities Act of 1933 shall include a reference to
the comparable section, if any, of any such successor federal statute.
Selling Expenses: As defined in Section 8 hereof.
All other capitalized terms not otherwise defined herein shall carry
the same definition as under the Merger Agreement.
3. Required Registration.
(a) If any Registrable Securities were issued to the Stockholders
pursuant to the Merger Agreement without registration under the Securities
Act, the Company shall use its reasonable best efforts to register
Registrable Securities under the Securities Act for sale as follows:
(i) the Company will register once, during each three-month
period in the one-year period commencing on the Closing Date, that number
of shares of Registrable Securities held by each such Stockholder that
does not exceed, for each such three-month period, one percent (1%) of
the then outstanding Company Common Stock; provided that the number of
shares permitted to be sold in such three-month periods shall be
cumulative, and any Stockholder that does not sell the full one percent
(1%) in a given three-month period may cumulate the number
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of shares not so sold and sell such unsold shares in a subsequent three-
month period;
(ii) from the first anniversary of the Closing Date until the third
anniversary of the Closing Date (as may be extended pursuant to Section
3(c) below), the Company will, upon a request from Stockholders holding
at least 70% of the Registrable Securities initially issued pursuant to
the Merger Agreement, register any Registrable Securities on Form S-3 (or
any successor form) or, if such form is unavailable to the Company, on
such other form as is available to the Company; provided each such
request relates to the registration of shares having a market value of at
least $5,000,000 if registered on Form S-1 or $1,000,000 if registered on
Form S-3; and
(iii) the Company shall use diligent efforts: (A) in the case of the
first registration pursuant to Section 3(a)(i), to cause such
registration statement to become effective under the Securities Act not
later than the business day next following the expiration of the Pooling
Period; (B) in the case of each other registration pursuant to Section
3(a)(i), to cause such registration statement to become effective under
the Securities Act not later than the first day of each successive
three-month period; and (C) in the case of the first registration
requested pursuant clause (a)(ii) of this Section 3, if such request is
delivered at least 45 days prior to the first anniversary of the Closing
Date, to cause such registration statement to become effective under the
Securities Act not later than the business day next following the first
anniversary of the Closing Date.
(b) If the Registrable Securities were issued to the Stockholders
pursuant to a registration statement under the Securities Act, then, from the
first anniversary of the Closing Date until the third anniversary of the
Closing Date (as may be extended pursuant to Section 3(c) below),
Stockholders holding at least 70% of the Registrable Securities initially
issued pursuant to the Merger Agreement may request the Company to register
up to 50% of the Registrable Securities issued to such Stockholders pursuant
to the Merger Agreement on Form S-3 (or any successor form) or, if such form
is unavailable to the Company, on such other form as is available to the
Company; provided, however, that each such request relates to the
registration of shares having a market value of at least $5,000,000 if
registered on Form S-1 or $1,000,000 if registered on Form S-3; provided,
further, however, that the maximum number of Registrable Securities which the
Company is obligated to register for a Stockholder under this Section 3(b)
shall be reduced to the extent that such Stockholder has sold Registrable
Securities pursuant to Rule 145(d) or otherwise.
(c) No registration pursuant to Section 3(a)(i) or request made under
Section 3(a)(ii) or Section 3(b) shall require a registration statement
requested therein to become effective (i) prior to the effective date of a
registration statement filed by the Company covering a firm commitment
underwritten public offering of the Company Common Stock being sold for the
account of the Company if the Company shall have given written notice in the
manner provided in Section 4 below of such registration statement to the
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Stockholders prior to the Company's obligation to register under Section
3(a)(i) or the receipt of a demand notice from the Holders pursuant to this
Section 3 and shall have thereafter pursued the preparation, filing and
effectiveness of such registration statement with diligence (it being
understood by such Stockholders that advance notice of the pendency of such
registration may be material, non-public information); or (ii) if the Company
shall furnish to the Stockholders a certificate signed by the President of
the Company and prepared in good faith stating that, in the good faith
judgment of the Board of Directors of the Company, it would be seriously
detrimental to the Company and its stockholders for such registration to be
effected at such time, in which event the Company shall have the right to
defer the filing of the registration statement for a period of not more than
sixty (60) days after receipt of the request for registration, which right
may not be exercised by the Company on more than one occasion during any
period of 12 consecutive months; provided, however, that if the obligation of
the Company under Section 3(a)(i) is so suspended by the Company pursuant to
clause (i) above, such suspension shall be effective only if the Stockholders
are permitted to include in the registration statement filed by the Company,
in addition to any shares included in such registration pursuant to Section 4
of this Agreement, no less than the number of shares which they would have
been permitted to sell pursuant to Section 3(a)(i) during the period of such
suspension and, if such Company registration involves an underwriting, any
lock-up period requested by the managing underwriter. If the right of the
Stockholders to request a registration is so suspended by the Company
pursuant to clause (i) or (ii) above, then the periods specified in Sections
3(a)(ii) and 3(b) shall be increased by one day for each day such right is
suspended.
(d) Following receipt of any notice under this Section 3, the Company
shall immediately notify all Stockholders from whom notice has not been
received and shall use its reasonable best efforts to register under the
Securities Act, for public sale in accordance with the method of disposition
specified in such notice from requesting Stockholders, the number of
Registrable Securities specified in such notice subject to the limitations
specified in this Section 3 (and in all notices received by the Company from
other Stockholders within 30 days after the giving of such notice by the
Company). If such method of disposition shall be an underwritten public
offering, the Company may designate the managing underwriter of such
offering, subject to the approval of the Stockholders holding a majority of
the Registrable Securities to be sold in such offering, which approval shall
not be unreasonably withheld or delayed. The Company shall be obligated to
register Registrable Securities pursuant to Section 3(a)(i) on four occasions
only, pursuant to Section 3(a)(ii) on two occasions only, and pursuant to
Section 3(b) on one occasion only; provided, however, that such obligation
shall be deemed satisfied only when a registration statement, which covers
all Registrable Securities specified in notices received as aforesaid and
with respect to which the request for registration has not been withdrawn and
provides for sale of such shares in accordance with the method of disposition
specified by the requesting Stockholders, shall have become effective and, if
such method of disposition is a firm commitment underwritten public offering,
all such shares shall have been sold pursuant thereto; provided further, if,
on any one occasion, the Stockholders exercise a demand right and
subsequently inform the Company in writing that (i) they desire to withdraw
such registration or (ii) they are unable to sell in
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excess of 50% of the Registrable Shares covered by such registration
statement due to a deterioration in market conditions or other bona fide
reason and the Stockholders reimburse the Company for all Registration
Expenses incurred by the Company in connection with such terminated
registration, then the Stockholders shall be deemed not to have exercised the
demand right under this Agreement and shall be permitted to exercise such
right in accordance with the terms of Section 3(a) of this Agreement on one
additional occasion; and provided, further, that if such withdrawal or
inability to sell in excess of 50% of such shares is due to the discovery by
the Stockholders of a material adverse change in the condition, business or
prospects of the Company as determined by the managing underwriter(s) of the
related offering, if any, or by Stockholders holding at least 70% of the
Registrable Securities proposed to be included in the registration, if there
shall be no underwriters, from that known to any of the Stockholders at the
time of their request and the Stockholders shall have withdrawn such request
or terminated sales promptly following the disclosure by the Company of such
material adverse change, then the Stockholders shall not be required to pay
such expenses and shall retain their right to again request such registration
in the future.
(e) The Company shall be entitled, upon written notice to the Holders
within 30 days after receipt of their request to effect a registration
pursuant to this Section 3, to include in any registration statement referred
to in this Section 3, for sale in accordance with the method of disposition
specified by the requesting Stockholders, shares of Company Common Stock to
be sold by the Company for its own account, except as and to the extent that,
in the opinion of the managing underwriter (if such method of disposition
shall be an underwritten public offering), such inclusion would adversely
affect the marketing of the Registrable Securities to be sold. In the event
the Company exercises such right and includes shares in such registration
statement equaling more than 50% of the shares included in such registration,
such registration shall be deemed to be Company-initiated registration and
the Holders shall not be deemed to have exercised a demand right under
Section 3.
4. Piggy-Back Registration.
(a) Notice. If the Company at any time after the expiration of the
Pooling Period proposes to register, other than pursuant to Section 3 hereof,
any of its securities under the Securities Act for sale to the public,
whether for its own account or for the account of securityholders other than
the Holders or both (except for registrations on Form S-4 or S-8 or another
form not available for registering the Registrable Securities for sale to the
public), each such time it will give written notice to all Holders of its
intention to do so and of the Holders' rights under this Section 4. Upon the
written request of any such Holder, received by the Company within 30 days
after the giving of any such notice by the Company, to register any of the
Holder's Registrable Securities, the Company will cause the Registrable
Securities as to which registration shall have been so requested to be
included in the securities to be covered by the registration statement
proposed to be filed by the Company, all to the extent requisite to permit
the sale or other disposition by the Holder (in accordance with the Holder's
written request) of such Registrable Securities so registered.
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(b) Underwriting. If (i) a registration described in this Section 4
involves an underwritten offering of the securities so being registered to be
distributed (on a firm commitment basis) by or through one or more
underwriters, (ii) the Registrable Securities so requested to be registered
for sale for the account of the Holders are also to be included in such
underwritten offering, and (iii) the managing underwriter of such
underwritten offering shall inform the Company and the Holders by letter of
its belief that the distribution of all or a specified number of the
Registrable Securities requested to be included concurrently with the
securities being distributed by such underwriters would interfere with the
successful marketing of the securities being distributed by such
underwriters, then the Company may, upon written notice to all Holders,
reduce (if and to the extent stated by such managing underwriter to be
necessary to eliminate such effect) the number of the Registrable Securities
requested to be included so that the resultant aggregate number of the
Registrable Securities requested to be included that will be included in such
registration shall be equal to the number of shares stated in such managing
underwriter's letter; provided, however, that the priority in such
registration shall be as follows: (i) first, securities offered for the
account of the Company or, if such registration is for a securityholder
exercising a contractual request for registration, then securities offered
for the account of such securityholder, (ii) second, the Registrable
Securities and the securities of other securityholders, if any, who are
entitled by contract to have such securities included in such registration,
pro rata based on the number of shares of Company Common Stock then held, and
(iii) third, all other securities proposed to be registered.
(c) Other Matters. Notwithstanding the foregoing provisions, the
Company may withdraw or delay any registration statement referred to in this
Section 4 without thereby incurring any liability to the Holders. Any such
withdrawal or delay shall be without prejudice to the rights of the Holders
under Section 3 hereof. No registration effected under this Section 4 shall
relieve the Company of its obligations under Section 3 hereof.
5. Termination of the Company's Registration Obligations. The
Company's registration obligations under (i) Section 3 shall terminate three
years after the Closing Date (subject to extension pursuant to Section 3(c)
and the penultimate paragraph of Section 6) and (ii) Section 4 shall
terminate five years after the Closing Date. In addition, the Company shall
not be required to effect a registration pursuant to Section 3 or 4 hereof
for any Holder desiring to participate in such registration or to maintain
the effectiveness of any registration statement for any Holder who, in any
such case, may then dispose of all of such Holder's shares of Registrable
Securities pursuant to Rule 144 within the three-month period following such
proposed registration; provided, however, no termination of the Company's
registration obligations shall be deemed to affect the parties' obligations
under Sections 8, 9 and 10 of this Agreement, which Sections shall survive
the termination of such registration obligations.
6. Registration Procedures. If and whenever the Company is required by
the provisions of Section 3 or 4 to effect the registration of any
Registrable Securities under
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the Securities Act, the Company shall, as expeditiously as possible and until
the Company's registration obligations terminate pursuant to Section 5 hereof:
(a) prepare and file with the Commission the requisite registration
statement to effect such registration and thereafter use diligent efforts to
cause each such registration statement to become and remain effective until
the earlier of (A) the date on which all of the Registrable Securities
covered by such registration statement have been disposed of by the Holder or
Holders thereof in accordance with the intended methods of disposition
thereof described in the registration statement (each Holder or Holders
thereof hereby agreeing to inform the Company upon the completion of the
disposition of their respective Registrable Securities); or (B) the
expiration of the following periods: (i) in the case of any Holder, the
period after which the Company's registration obligations terminate as to
such Holder pursuant to Section 5 hereof; and (ii) in the case of a
registration pursuant to Section 4 hereof, 180 days after the effective date
of such registration statement (as the periods specified in clauses (i) and
(ii) above may be extended pursuant to the penultimate paragraph of this
Section 6);
(b) prepare and file with the Commission such amendments and supplements
to such registration statement and the prospectus used in connection
therewith as may be necessary to keep such registration statement effective
for the applicable period specified in Section 6(a) hereof and to comply
during such period with the obligations of a registrant under the Securities
Act (including, without limitation, provisions relating to the disposition of
all securities covered by such registration statement in accordance with the
intended methods of disposition by the Holders set forth in such registration
statement);
(c) furnish to each Holder of Registrable Securities covered by such
registration statement and each underwriter thereof, if any, such number of
conformed copies of such registration statement and of each such amendment
and supplement thereto (in each case including all exhibits), such number of
copies of the prospectus contained in such registration statement (including
each preliminary prospectus and any summary prospectus) and of any other
prospectus filed under Rule 424 under the Securities Act, and such other
documents, as such Holder and underwriter may reasonably request in order to
facilitate the public sale or other disposition of such Registrable
Securities;
(d) use diligent efforts to register or qualify all Registrable
Securities covered by such registration statement under such other securities
laws or blue sky laws of such jurisdictions as any Holder thereof and any
underwriter thereof shall reasonably request, and to keep such registrations
or qualifications in effect for so long as such registration statement
remains in effect, and take any other action which may be reasonably
necessary or advisable to enable such Holder and underwriter to consummate
the disposition in such jurisdictions of the Registrable Securities owned by
such Holder, except that the Company shall not for any such purpose be
required to qualify generally to do business as a foreign corporation in any
jurisdiction wherein it would not but for the requirements of this Section
6(d) be obligated to be so qualified or to consent to general service of
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process in any such jurisdiction (unless the Company is subject to service in
such jurisdiction and except as may be required by the Securities Act);
(e) upon request, furnish each Holder of Registrable Securities a signed
counterpart, addressed to such Holder, of an opinion of counsel for the
Company, dated the effective date of such registration statement (or, if such
registration statement includes an underwritten public offering, dated the
date of closing under the underwriting agreement), with opinions of issuer's
counsel with respect to corporate and securities and patent issues as
customarily delivered in connection with public offerings;
(f) promptly notify each Holder of Registrable Securities covered by
such registration statement and each underwriter thereof, if any, at any time
when a prospectus relating thereto is required to be delivered under the
Securities Act, upon the Company's discovery that, or upon the happening of
any event of which the Company has knowledge as a result of which, the
prospectus included in such registration statement, as then in effect,
includes an untrue statement of a material fact or omits to state any
material fact required to be stated therein or necessary to make the
statements therein not misleading in the light of the circumstances then
existing, and at the request of any such Holder or underwriter promptly
prepare and furnish to such Holder or underwriter, if any, a reasonable
number of copies of a prospectus supplemented or amended so that, as
thereafter delivered to the purchasers of such Registrable Securities, such
prospectus shall not include an untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary to make
the statements therein not misleading in the light of the circumstances then
existing;
(g) otherwise use diligent efforts to comply with all applicable rules
and regulations of the Commission, and make generally available (within the
meaning of Section 11(a) of the Securities Act and the regulations
thereunder) to its securityholders, as soon as reasonably practicable, an
earnings statement covering a period of at least twelve months, beginning
with the first month of the first fiscal quarter after the effective date of
such registration statement, which earnings statement shall satisfy the
provisions of Section 11(a) of the Securities Act and the regulations
thereunder;
(h) provide and cause to be maintained a transfer agent and registrar
for all Registrable Securities covered by such registration statement from
and after a date not later than the effective date of such registration
statement;
(i) use diligent efforts to list all Company Common Stock covered by
such registration statement on each securities exchange on which any of the
Company Common Stock is then listed or, if the Company Common Stock is not
then listed on any national securities exchange but is included in Nasdaq or
the Nasdaq National Market, use diligent efforts to have such Company Common
Stock included in Nasdaq or the Nasdaq National Market, as the case may be;
and
(j) in connection with each such registration, give the Holders of
Registrable Securities to be registered therein, their underwriters, if any,
and up to one designated
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counsel and one designated accounting firm to represent the interests of such
Holders, at the expense of such Holders, the reasonable opportunity to
participate in the preparation prior to filing of the related registration
statement, each prospectus included therein or filed with the Commission, and
each amendment thereof or supplement thereto;
(k) upon receipt by the Company of reasonable confidentiality
agreements, make available for inspection by any underwriter participating in
any disposition pursuant to such registration statement and any attorney,
accountant or other agent retained by any such underwriter, all financial and
other records, pertinent corporate documents and properties of the Company,
and cause the Company's officers, directors, employees and independent
accountants to be available on a reasonable basis and cooperate with such
parties' "due diligence" and to supply all information reasonably requested
by any such underwriter, attorney, accountant or agent in connection with
such registration statement, provided that the Company may refrain from
disclosing any proprietary or other information that is not material to the
Company's financial condition or results of operations; and
(l) in the event of the issuance of any stop order suspending the
effectiveness of a registration statement, or of any order suspending or
preventing the use of any related prospectus or suspending the qualification
of any Company Common Stock included in such registration statement for sale
in any jurisdiction, the Company will use diligent efforts promptly to obtain
the withdrawal of such order.
The Holders agree that, upon receipt of any notice from the Company of
the occurrence of any event of the kind described in Section 6(f) hereof, the
Holders will forthwith discontinue their disposition of Registrable
Securities pursuant to the registration statement relating to such
Registrable Securities until the Holders' receipt of the copies of the
supplemented or amended prospectus contemplated by Section 6(f) hereof and,
if so directed by the Company, will deliver to the Company (at the Company's
expense) all copies, other than permanent file copies, then in the Holders'
possession of the prospectus relating to such Registrable Securities current
at the time of receipt of such notice. In the event the Company shall give
any such notice, the three-year and 180-day periods referred to in Sections 5
and 6(a) hereof, respectively, shall be extended by the length of the period
from and including the date when each Holder of any Registrable Securities
covered by such registration statement shall have received such notice to the
date on which each such Holder has received the copies of the supplemented or
amended prospectus contemplated by Section 6(f) hereof.
In connection with each such registration, each Holder of Registrable
Securities to be named in the registration statement shall furnish to the
Company such information regarding such Holder and the proposed distribution
of such Registrable Securities as the Company may from time to time
reasonably request in writing, and the delivery of such information shall be
a condition precedent to the obligation of the Company to file any
registration statement.
7. Underwritten Offerings.
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(a) Underwritten Offerings Requested by Holders. If requested by the
underwriters for any underwritten offering by a Holder or Holders pursuant to
a registration requested under Section 3 hereof, the Company will enter into
an underwriting agreement with such underwriters for such offering, such
agreement to be reasonably satisfactory in substance and form to the Company,
such Holder or Holders and the underwriters, and to contain such
representations and warranties by the Company for the benefit of the
underwriters and the Holders and such other terms as are customarily
contained in an underwriting agreement with respect to such an offering,
including, without limitation, representations and warranties by the Company
to the underwriters, provisions regarding the delivery of opinions of
counsel, a "cold comfort" letter and updates thereof and other closing
certificates and documents, in each case as customarily included in
underwritten public offerings, and indemnities substantially to the effect
and to the extent provided in Section 9 hereof. Such Holder or Holders will
cooperate with the Company in the negotiation of the underwriting agreement
and will give consideration to the reasonable suggestions of the Company
regarding the form thereof; provided, however, that nothing herein contained
shall diminish the foregoing obligations of the Company. Such Holder or
Holders of Registrable Securities to be distributed by such underwriters
shall be parties to such underwriting agreement, which may contain
representations and warranties of the Holders for the benefit of the
underwriters and the Company as are usual and customary and may require that
any or all of the conditions precedent to the obligations of such
underwriters under such underwriting agreement be conditions precedent to the
obligations of such Holder or Holders.
(b) Underwritten Piggy-Back Offerings. The Holder or Holders of
Registrable Securities to be distributed by an underwritten offering
described in Section 4 hereof shall be parties to the underwriting agreement
between the Company and such underwriters and may require that any or all of
the conditions precedent to the obligations of such underwriters under such
underwriting agreement be conditions precedent to the obligations of such
Holder or Holders. No such Holder shall be required to make any
representations or warranties to or agreements with the Company or the
underwriters other than representations, warranties or agreements regarding
such Holder, such Holder's Registrable Securities and such Holder's intended
method of distribution customarily given to underwriters and any other
representation required by law.
8. Expenses. All expenses incurred by the Company in complying with
Sections 3, 4, 6 and 7 hereof, including, without limitation, all
registration and filing fees, printing expenses, fees and disbursements of
counsel and independent public accountants for the Company, reasonable fees
and expenses of one counsel for the holders of Registrable Securities
participating in such registration (not to exceed $25,000 for all
registrations pursuant to Section 3(a)(i) hereof, each registration pursuant
to Section 4 hereof, and each registration pursuant to Sections 3(a)(ii) and
3(b) hereof), fees and expenses incurred in connection with complying with
state securities or "blue sky" laws, fees of the National Association of
Securities Dealers, Inc., fees of transfer agents and registrars, and costs
of insurance, but excluding any Selling Expenses, are herein called
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"Registration Expenses." All underwriting discounts, brokerage fees and
selling commissions applicable to the sale of Registrable Securities by a
Holder or Holders are herein called "Selling Expenses."
The Company will pay all Registration Expenses in connection with any
registration pursuant to this Agreement. All Selling Expenses in connection
with each such registration shall be borne by the participating Holders in
proportion to the number of shares of Registrable Securities sold by each, or
as such Holders may otherwise agree.
9. Indemnification.
(a) Indemnification by the Company. In the event of any registration,
qualification or compliance effected pursuant to Sections 3 or 4 hereof, the
Company shall indemnify and hold harmless the Holder of any Registrable
Securities covered by such registration statement, its directors and officers
and affiliates, if any, each underwriter of such Registrable Securities
thereunder, if any, each broker, dealer, or similar person acting on behalf
of any such Holder, and each other person, if any, who controls any of the
foregoing persons within the meaning of the Securities Act (each a "Company
Indemnitee" and collectively the "Company Indemnitees"), in each case,
against any losses, claims, damages or liabilities, joint or several, to
which such Company Indemnitee may become subject under the Securities Act or
otherwise, insofar as such losses, claims, damages or liabilities (or actions
or proceedings, whether commenced or threatened, in respect thereof) arise
out of or are based upon any breach of any representation, warranty,
agreement or covenant of the Company contained in the underwriting agreement
covering the public offering of such Registrable Securities or untrue
statement or alleged untrue statement of any material fact contained in any
registration statement under which such Registrable Securities were
registered under the Securities Act pursuant to Sections 3 or 4, any
preliminary prospectus, final prospectus or summary prospectus contained
therein, or any amendment or supplement thereto, or any other document
incident to any such registration, qualification or compliance, or any
omission or alleged omission to state therein a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
any violation by the Company of the Securities Act or any rule or regulation
thereunder applicable to the Company and relating to action or inaction
required of the Company in connection with any such registration,
qualification or compliance, and the Company will reimburse such Company
Indemnitee for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, liability,
action or proceeding; provided, however, that the Company shall not be liable
in any such case if and to the extent that any such loss, claim, damage,
liability (or action or proceeding in respect thereof) or expense arises out
of or is based upon an untrue statement or alleged untrue statement or
omission or alleged omission made in such document in reliance upon and in
conformity with written information furnished to the Company by such Company
Indemnitee, specifically for use in such document; and provided further, that
the foregoing indemnity agreement is subject to the condition that, insofar
as it relates to any such untrue statement or alleged untrue statement or
omission or alleged omission made in the preliminary prospectus but
eliminated or remedied in the amended
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prospectus on file with the Commission at the time the registration statement
becomes effective or in the amended prospectus filed with the Commission
pursuant to Rule 424(b) or in the prospectus subject to completion and term
sheet under Rule 434 of the Securities Act, which together meet the
requirements of Section 10(a) of the Securities Act (the "Final Prospectus"),
such indemnity agreement shall not inure to the benefit of any such seller,
any such underwriter or any such controlling person, if a copy of the Final
Prospectus was not furnished to the person or entity asserting the loss,
liability, claim or damage at or prior to the time such furnishing is
required by the Securities Act, but only if the Company had previously
furnished a sufficient number of copies of the Final Prospectus to such
seller for distribution to any underwriter or controlling person. Such
indemnity shall remain in full force and effect regardless of any
investigation made by or on behalf of such Holder, director, officer,
underwriter or controlling person, shall survive the transfer of such
securities by any Holder or underwriter, and shall be in addition to any
liability which the Company may otherwise have.
(b) Indemnification by the Holders. In the event of any registration,
qualification or compliance effected pursuant to Sections 3 or 4 hereof, each
Holder selling Registrable Securities pursuant thereto shall indemnify and
hold harmless the Company, each director of the Company, each officer of the
Company and each other person, if any, who controls the Company within the
meaning of the Securities Act, each underwriter, if any, and each person who
controls any of the foregoing persons within the meaning of the Securities
Act (each a "Holder Indemnitee" and collectively the "Holder Indemnitees"),
in each case, against any losses, claims, damages or liabilities, joint or
several, to which a Holder Indemnitee may become subject under the Securities
Act or otherwise, insofar as such losses, claims, damages or liabilities (or
actions or proceedings, whether commenced or threatened, in respect thereof)
arise out of or are based upon (i) any breach of any representation,
warranty, agreement or covenant of such Holder contained in the underwriting
agreement covering the public offering of such Registrable Securities or (ii)
any untrue statement or alleged untrue statement of any material fact
contained in any registration statement under which such Registrable
Securities were registered under the Securities Act pursuant to Sections 3 or
4, any preliminary prospectus, final prospectus or summary prospectus
contained therein, or any amendment or supplement thereto, or any other
document incident to any such registration, qualification or compliance, or
any omission or alleged omission to state therein a material fact required to
be stated therein or necessary to make the statements therein not misleading,
and will reimburse each Holder Indemnitee for any legal or other expenses
reasonably incurred by them in connection with investigating or defending any
such loss, claim, damage, liability or action, but only to the extent that
any such loss, claim, damage or liability (or action or proceeding in respect
thereof) or expense arises out of or is based upon an untrue statement or
alleged untrue statement or omission or alleged omission made in reliance
upon and in conformity with information pertaining to such Holder, as such,
furnished in writing to the Company by such Holder specifically for use in
such document; provided, however, that the foregoing indemnity agreement is
subject to the condition that, insofar as it relates to any such untrue
statement or alleged untrue statement or omission or alleged omission made in
the preliminary prospectus but eliminated or remedied in the amended
prospectus on file with the Commission at the
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time the registration statement becomes effective or in the Final Prospectus,
such indemnity agreement shall not inure to the benefit of the Company, any
controlling person or any underwriter, if the Company had an obligation under
the Securities Act to deliver the Final Prospectus to the person or entity
asserting the loss, liability, claim or damage and such Final Prospectus was
not so furnished at or prior to the time such furnishing is required by the
Securities Act; and provided, further, that, in the case of a registration
pursuant to Section 3 or 4 hereof, in no event shall any indemnity by a
seller under this Section 9(b) exceed the gross proceeds from the offering
received by such seller. Such indemnity shall remain in full force and
effect, regardless of any investigation made by or on behalf of the Company
or any such director, officer, underwriter or controlling person, shall
survive the transfer of such Registrable Securities by any such Holder or
underwriter, and shall be in addition to any liability which any such Holder
may otherwise have.
(c) Notices of Claims, etc. Promptly after receipt by an indemnified
party of notice of the commencement of any action or proceeding involving a
claim referred to in the preceding provisions of this Section 9, such
indemnified party shall, if a claim in respect thereof is to be made against
an indemnifying party, give written notice to the latter of the commencement
of such action; provided, however, that the failure of any indemnified party
to give notice as provided herein shall not relieve the indemnifying party of
its obligations under the preceding provisions of this Section 9, except to
the extent that the indemnifying party is actually prejudiced by such failure
to give notice. In case any such action or proceeding is brought against an
indemnified party, unless in such indemnified party's reasonable judgment a
conflict of interest between such indemnified and indemnifying parties may
exist in respect of such claim, the indemnifying party shall be entitled to
participate in and to assume the defense thereof, jointly with any other
indemnifying party similarly notified, to the extent that the indemnifying
party may wish, with counsel reasonably satisfactory to such indemnified
party, and after notice from the indemnifying party to such indemnified party
of its election so to assume the defense thereof, the indemnifying party
shall not be liable to such indemnified party under this Section 9 for any
legal or other expenses subsequently incurred by the latter in connection
with the defense thereof other than reasonable costs of investigation. No
indemnifying party shall, without the consent of the indemnified party,
consent to entry of any judgment or enter into any settlement of any such
action which does not include as an unconditional term thereof the giving by
the claimant or plaintiff to such indemnified party of a release from all
liability, or a covenant not to xxx, with respect to such claim or
litigation. No indemnified party shall consent to entry of any judgment or
enter into any settlement of any such action the defense of which has been
assumed by an indemnifying party without the consent of such indemnifying
party (which consent shall not be unreasonably withheld).
(d) Indemnification Payments. The indemnification required by this
Section 9 shall be made by periodic payments of the amount thereof during the
course of the investigation or defense, as and when bills are received or
expense, loss, damage or liability is incurred.
-13-
(e) Contribution. If for any reason the indemnification provided for in
the preceding provisions of this Section 9 is unavailable to an indemnified
party in respect of any losses, claims, damages or liabilities (or any action
or proceeding in respect thereof) referred to therein, then each indemnifying
party, in lieu of indemnifying an indemnified party, shall contribute to the
amount paid or payable by such indemnified party as a result of such losses,
claims, damages or liabilities (or any action or proceeding in respect
thereof) (i) as between the Company and the Holders on the one hand and the
underwriters on the other, in such proportion as is appropriate to reflect
the relative benefits received by the Company and the Holders on the one hand
and the underwriters on the other from the offering of the securities, or if
such allocation is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits but also the relative
fault of the Company and the Holders on the one hand and of the underwriters
on the other in connection with the statement or omissions which resulted in
such losses, claims, damages or liabilities (or action or proceeding), as
well as any other relevant equitable considerations and (ii) as between the
Company on the one hand and each Holder on the other, in such proportion as
is appropriate to reflect the relative fault of the Company and of each
Holder in connection with such statements or omissions, as well as any other
relevant equitable considerations. The relative benefits received by the
Company and the Holders on the one hand and the underwriters on the other
shall be deemed to be in the same proportion as the total proceeds from the
offering (net of underwriting discounts and commissions but before deducting
expenses) received by the Company and the Holders bear to the total
underwriting discounts and commissions received by the underwriters, in each
case as set forth in the table on the cover page of the prospectus. The
relative fault of the Company and the Holders on the one hand and of the
underwriters on the other shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or
the omission or alleged omission to state a material fact relates to
information supplied by the Company and the Holders or by the underwriters.
The relative fault of the Company on the one hand and of each Holder on the
other shall be determined by reference to, among other things, whether the
untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by
such party, and the parties' relative intent, knowledge, access to
information and opportunity to correct or prevent such statement or omission.
The Company and the Holders agree that it would not be just and equitable
if contribution pursuant to this Section 9 were determined by pro rata
allocation or by any other method of allocation which does not take account
of the equitable considerations referred to in the immediately preceding
paragraph. The amount paid or payable by an indemnified party as a result of
the losses, claims, damages or liabilities referred to in the immediately
preceding paragraph shall be deemed to include, subject to the limitations
set forth above, any legal or other expenses reasonably incurred by such
indemnified party in connection with investigating or defending any such
action or claim. No person guilty of fraudulent misrepresentation (within
the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any person who was not guilty of such fraudulent
misrepresentation. Each Holder's obligation to contribute pursuant to this
Section 9 is several, and not joint, in the proportion that the proceeds of
the offering
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received by such Holder bears to the total proceeds of the offering received
by all the Holders.
10. Rule 144. With a view to making available the benefits of certain
rules and regulations of the Commission which may permit the sale of the
Registrable Securities to the public without registration, the Company agrees
to:
(a) make and keep public information available, as those terms are
understood and defined in Rule 144 under the Securities Act;
(b) use diligent efforts to file with the Commission in a timely manner
all reports and other documents required of the Company under the Securities
Act and the Exchange Act;
(c) furnish to a Holder of Registrable Securities forthwith upon request
a written statement by the Company as to its compliance with the reporting
requirements of Rule 144 and of the Securities Act and the Exchange Act a
copy of the most recent annual or quarterly report of the Company, and such
other reports and documents previously filed as the Holder may reasonably
request in availing itself of any rule or regulation of the Commission
allowing the Holder to sell any such securities without registration; and
(d) in accordance with the Company's current practices, pay the fees and
expenses of the Company's counsel in obtaining routine, appropriate opinions
of counsel (to the effect that registration under Securities Act will or will
not be required for any sale or transfer) if at any time or from time to time
any holder desires to sell or otherwise transfer any or all of the
Registrable Securities held by it pursuant to Rule 144 or Rule 145(d) under
the Securities Act.
11. Lock-Up.
(a) Company Lock-Up. The Company agrees not to effect any public sale
or public distribution of its equity securities, or any securities
convertible into or exchangeable or exercisable for such securities, during
the 30-day period prior to and during the 90-day period beginning on the
commencement date of any underwritten offering on behalf of the Holders
(except pursuant to (i) registrations on Form S-8 or any successor form, (ii)
registrations on Form S-4 or any successor form and (iii) as part of such
underwritten registration, if permitted pursuant to Section 3(d)), unless the
underwriters managing such offering otherwise agree; provided, however, that
the foregoing 30-day and 90-day periods shall be extended to the extent
requested by such managing underwriters, but not beyond a 60-day and 180-day
period, respectively.
(b) Holder Lock-Up. Each Holder agrees not to effect any public sale or
other distribution of Company Common Stock, or any securities convertible
into or exchangeable or exercisable therefor, during the 30-day period prior
to (or if less, the period beginning on the date notice of such proposed
offering is received) and during the
-15-
90-day period beginning on the commencement of any underwritten offering on
the part of the Company of Company Common Stock being sold for the account of
the Company (except pursuant to (i) registrations on Form S-8 or any
successor form, (ii) registrations on Form S-4 or any successor form and
(iii) any part of such underwritten registration, if permitted pursuant to
Section 4(a)), unless the underwriters managing such offering otherwise
agree; provided, however, that the foregoing 30-day and 90-day periods shall
be extended to the extent requested by such managing underwriters, but not
beyond a 60-day and 180-day period, respectively.
12. Amendments and Waivers. This Agreement may be amended and the
Company may take any action herein prohibited, or omit to perform any act
herein required to be performed by it, if the Company shall have obtained the
written consent to such amendment, action or omission to act, of the holders
of at least seventy percent (70%) of the Registrable Securities initially
issued pursuant to the Merger Agreement.
13. Notices. 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 (if received during regular business hours; otherwise on
the next business day) (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 certified mail or a nationally
recognized overnight delivery service (receipt 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):
(a) If to the Company:
ATMI, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, Xxxxxxxxxxx 00000-0000
Attention: President and CEO
Facsimile: (000) 000-0000
with a copy to:
Xxxxx X. Xxxxx, Esq.
Xxxxxxx & Xxxxxxx LLP
Xxx Xxxxxxxx Xxx
Xxxxxxxx, XX 00000
Facsimile: (000) 000-0000
(b) If to a Holder, at the Holder's address as set forth on Schedule 1.
with a copy to:
Xxxxxxx X. Xxxxxxxx, Esq.
-00-
Xxxxxx, Xxxxxxxx, Xxxxxxxx & Xxxxx, P.A.
0000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000-0000
Facsimile: (000) 000-0000
14. Miscellaneous.
(a) Assignment. This Agreement shall be binding upon and inure to the
benefit of and be enforceable by the parties hereto and their respective
heirs, successors and assigns.
(b) Headings. The headings of the several sections and paragraphs of
this Agreement are inserted for reference only and shall not limit or
otherwise affect the meaning thereof.
(c) Counterparts. This Agreement may be executed in counterparts, and
when so executed each counterpart shall be deemed to be an original, and said
counterparts together shall constitute one and the same instrument.
(d) Entire Agreement. This Agreement embodies the entire agreement and
understanding between the parties hereto with respect to the subject matter
hereof, and supersedes all prior agreements and understandings with respect
to such subject matter.
(e) Singular and Plural Words; Gender. Unless the context otherwise
requires, all words used herein in the singular shall include the plural, all
words used herein in the plural shall include the singular, and all words
used herein in any gender shall include all genders.
(f) Governing Law. This Agreement shall be construed and enforced in
accordance with, and the rights of the parties shall be governed by, the laws
of the State of Delaware without reference to the principles of conflicts of
laws.
[The signature page follows.]
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IN WITNESS WHEREOF, the parties have caused this Registration Rights
Agreement to be executed and delivered as of the date first above written.
ATMI, INC.
By: /s/ XXXXXX X. XXXXXXX
---------------------
Name: Xxxxxx X. Xxxxxxx
------------------
Title: President, Treasurer, Secretary
----------------------------------------
STOCKHOLDERS:
/s/ XXXXXXX X. XXXXXXXX
-------------------------------------
Xxxxxxx X. Xxxxxxxx
The Arizona State University Foundation
By: /s/ XXXXXX X. XXXXXX
-----------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------
Title: President
----------------------------
SCHEDULE 1
Stockholders
Name: Initial No. of Registrable Securities
Xxxxxxx X. Xxxxxxxx 3,556,000
000 Xxx Xxxxxxx Xxxxx Xxxxxxxxx
Xxxx, XX 00000
The Arizona State University Foundation 72,571
000 Xxxxx Xxxxxxx
Xxxxx, XX 00000
