EMPLOYMENT AGREEMENT January 14, 2008
Exhibit 10.33
January 14, 2008
Xxxxx Xxxxxx
00 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxx Xxxx 00000
00 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxx Xxxx 00000
ATMI, Inc., a Delaware corporation, has agreed to enter into an employment agreement with you
on the terms and subject to the conditions herein. The “Company” or “ATMI”, as used in this
Agreement shall be defined as ATMI, Inc. and for purposes of Section 7 hereof shall include any of
its subsidiaries or affiliates for which you provide any product, process, technology or service to
or supervise or otherwise participate in during the two (2) years prior to the termination of your
employment with ATMI, Inc. You have agreed to enter into an employment agreement containing, among
other things, restrictions on your ability to compete with the business of the Company and its
subsidiaries and affiliates to the extent provided in the preceding sentence for a period of time
following your termination of employment.
Accordingly, in consideration of the premises and the mutual promises and covenants contained
herein and for other good and valuable consideration, including but not limited to (i) your receipt
of a term of employment pursuant to Section 2 of this Agreement; (ii) your access to and receipt of
the confidential, proprietary and trade secret information of the Company and its subsidiaries and
affiliates; (iii) your receipt of compensation pursuant to Section 3 of this Agreement; and (iv)
your receipt of other benefits, including without limitation, stock options and restricted stock,
pursuant to Section 4 of this Agreement, the receipt and sufficiency of which are hereby expressly
acknowledged, effective the date of this Agreement, the Company and you agree as follows:
1. Position and Responsibilities.
1.1 You shall serve as Chief Legal Officer, Executive Vice President and Secretary of the
Company and of Advanced Technology Materials, Inc., a Delaware corporation (“ATMI Sub”), or in such
other capacity as shall be mutually agreed upon by you and the Board of Directors of ATMI. You
shall perform such duties at Danbury, Connecticut or such other place as you and the Company shall
mutually agree. You shall report directly to the CEO of the Company and ATMI Sub.
1.2 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
Company. You agree to serve as an officer of the Company and/or ATMI Sub, if elected by their
respective Boards of Directors, and to perform such executive duties consistent with your positions
as set forth above as may be reasonably 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 which the Company and/or ATMI Sub may now or shall hereafter establish (if and once
communicated to you) governing the conduct of the Company’s business and generally applicable to
similarly situated employees or officers of ATMI.
2. Term of Employment.
2.1 The term of your employment shall be two (2) years (the “Initial Term”) commencing on or
about January 28, 2008, provided your employment shall automatically terminate upon your death and
may be terminated at any time as provided in Sections 2.2 and 2.3. At the end of the Initial Term,
unless the parties mutually agree to renew, extend or modify the provisions hereof, your employment
shall continue “at will,” subject to the Company’s obligations under this Section 2, and the other
terms and conditions of this Agreement (as then in effect) shall continue. Sections 2.6, 2.7 and
2.8 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) subject to Section 2.5 hereof, immediately for Cause (as defined in Section 2.4), subject
to the cure rights set forth in Section 2.4, or
(b) subject to Sections 2.6, 2.7, 2.8 and 2.9 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 ATMI, 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 ATMI’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, on written notice to the Company, to terminate your employment
for “good reason,” which shall mean a resignation of your employment following (a) any material
breach by the Company of any of its obligations to you under this Agreement; (b) a significant
decrease by the Board of Directors of ATMI or ATMI Sub of your titles, positions, duties or
authority as set forth herein (except in connection with a termination pursuant to Section 2.2(a)
or (c)), including without limitation any failure by the Board of Directors of the
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Company or ATMI Sub to elect or re-elect you to your positions as Executive Vice President, Chief
Legal Officer and/or Secretary thereof; (c) any reduction in your Base Salary under Section 3.1;
(d) any reduction in your 45% of Base Salary target incentive compensation opportunity; (e) any
relocation of your primary place of employment more than 50 miles without your consent; or (f) any
failure of the Company to have any successor to all or substantially all of the business 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 to which you are a party, unless the
awards covered thereby 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
notice.
2.4 The term “Cause” shall mean (i) your willful failure or refusal to render substantial
services to the Company in accordance with your obligations under this Agreement,; (ii) the
commission by you of an act of fraud or embezzlement against the Company or the commission by you
of any other criminal act committed with the intent to materially injure the Company; (iii) an act
of moral turpitude by you which is materially detrimental to the business or reputation of the
Company; or (iv) your having been convicted of, or pleading nolo contendere to, a felony (other
than traffic offenses which do not bring you or the Company into disgrace or disrepute); provided
that, with respect to clauses (i) or (iii) hereof, if your alleged failure, act or refusal is
capable of cure, a written notice within three (3) months of such alleged failure, act or refusal
and opportunity to cure shall be afforded you and, in such event, Cause shall exist if you fail to
cure such failure, act or refusal within a reasonable period of time not to exceed thirty (30)
days. For purposes of this Section 2.4, the term “Company” shall include the Company, ATMI Sub and
their respective subsidiaries and affiliates. For purposes of this Section 2.4, an action or
inaction shall not be treated as “willful failure or refusal” 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 Company or ATMI Sub or their respective subsidiaries or affiliates.
2.5 If you are terminated for Cause, neither the Company nor any affiliate of the Company
shall have any further obligation to you or your personal representatives under this Agreement,
except for salary and any previously awarded but not yet paid bonus for any completed fiscal year,
additional compensation and permitted business expenses, accrued hereunder and unpaid at the date
of termination. Further, your rights under employee benefit plans and arrangements of the Company
or ATMI Sub shall be determined in accordance with the provisions of such plans and arrangements
and applicable law except to the extent that this Agreement expressly provides otherwise. Within
ten (10) days of the date of termination of your employment, you shall return to the Company all
records and other personal property of the Company in your possession or control, including all
confidential, proprietary or trade secret information of the Company and its subsidiaries and
affiliates.
2.6 In the event of the termination of your employment pursuant to either Section 2.2(b) or
Section 2.3, in addition to any other amounts set forth in Section 2.5 hereof, the Company shall
pay to you an aggregate of twelve (12) months’ Base Salary at the time of termination, less
applicable taxes and withholding (the “Severance Payment”), in the manner and
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subject to the terms and conditions as hereinafter provided, plus any previously awarded but not
yet paid bonus for any completed fiscal year, and the Company shall provide you during such period
medical, dental, life and disability insurance benefits on the same basis the Company would have
provided you such benefits during such period had you continued to be an employee of the Company
(collectively, the “Severance Benefits”). The Severance Payment 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.
2.7 In the event of the termination of your employment pursuant to either Section 2.2(b) or
2.3 within 548 days after a “change in control” of ATMI , (a) all stock options held by you to
purchase shares of ATMI 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; provided that such acceleration of vesting shall not occur if and to the extent that
(i) ATMI’s independent accountant has advised the Board of Directors of ATMI that such acceleration
could prohibit the accounting treatment of the transaction which is a change in control as a
pooling of interests under Accounting Principles Board Opinion No. 16 (or any successor opinion)
and (ii) the Board of Directors of ATMI intends to treat such transaction as a pooling of
interests, in which case options would continue to vest as permitted within the terms of the
applicable stock plans and stock option award agreements; (b) all restricted stock issued to you in
connection with your employment shall become immediately fully vested notwithstanding the vesting
provisions of any restricted stock agreement concerning such restricted stock; and (c) 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 ATMI 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 the
termination of your employment an amount in cash equal to the fair market value as of the date of
termination of your 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 2.7 or 2.6 or 2.5 upon or following a change in
control may subject you to an excise tax as “excess parachute payments” under Section 280G of the
Internal Revenue Code. ATMI will reimburse you for all excise taxes paid 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.The reimbursement
will constitute an excess parachute payment and will be subject to further excise tax. Such
further excise tax will trigger further reimbursement by ATMI. For purposes of this Section 2.7, a
“change in control” of ATMI shall be deemed to have taken place if: (i) a third person, including a
“person” as defined in Section 13(d)(3) of the
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Securities and Exchange Act becomes the beneficial owner (as defined in Rule 13d-3 under the
Securities and Exchange Act) directly or indirectly, of securities of ATMI representing twenty-five
percent (25%) or more of the total number of votes that may be cast for the election of the
directors of ATMI; (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 ATMI immediately prior to the Transaction shall cease to constitute a majority of the
Board of Directors of ATMI or of any successor to ATMI; (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 hereof, 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 hereof or whose appointment or election or nomination for election was previously so approved.
2.8 You shall have no duty to mitigate the Severance Payment, Severance Benefits 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 Company.
2.9 As a condition to your receipt of any payments and benefits provided for in Section 2.6,
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 2.9), provided that such requirement shall not apply after a
change in control of the Company as defined in Section 2.7 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 2.3 as expressly 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 the 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.
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3. Compensation.
3.1 The Company shall pay to you for the services to be rendered hereunder a Base Salary at
an annual rate of not less than $290,000, subject to customary withholding for federal, state and
local taxes. Such Base Salary shall be payable periodically in conformity with the prevailing
practice of ATMI for executives’ compensation as such practice shall be established or modified
from time to time. Such Base Salary shall be subject to increase but not decrease from time to
time to take into account appropriate cost of living adjustments and general compensation
increases based on performance, in the discretion of the Board of Directors of ATMI (such base
salary, as so increased, shall be the “Base Salary” herein).
3.2 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 .
4. Other Benefits.
4.1 You shall be entitled to “time off” in accordance with the Executive Committee Time Off
Program of ATMI, as the same may be in effect from time to time, 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.
4.2 You shall be entitled to participate in the ATMI Incentive Compensation Plan and any other
compensation programs for employees of ATMI of equivalent position. You will be measured on
Financial (75%) and MBOs (25%). For calendar years 2008 and 2009, you will have an incentive
compensation award opportunity at target of not less than 45% of Base Salary and a maximum bonus
opportunity of not less than 90% of Base Salary, which percentages shall be reviewed by the
Compensation Committee of the Board of Directors of the Company for possible increase prior to the
end of 2008. In connection with this incentive compensation opportunity, it is expected that you
will receive a letter on or about January 31, 2008, reflecting your MBO goals for 2008 and a letter
on or about January 1, 2009, reflecting your MBO goals for 2009. The actual amount of any
incentive compensation award to you will be in the discretion of the Board of Directors of ATMI or
an appropriate committee thereof, and will be based on pre-established company, business unit and
individual goals.
4.3 You shall be entitled to participate in the ATMI Senior Executive Perquisite Policy, on
such terms as are established by ATMI in its sole discretion. For the calendar years 2008 and
2009, your allowance under this Policy shall be $10,000.00 per year (after tax).
4.4 You shall be entitled to participate in the ATMI Long Term Incentive Stock Award Program,
on such terms as are established at the discretion of the ATMI Board of Directors. ATMI’s
Compensation Committee of the Board of Directors has determined to grant to you an initial Long
Term Incentive Stock Award with a value of $400,000.00, evenly divided between stock options and
restricted stock. The restricted stock award and the stock option grant share prices and number
of shares will be established on your start date. Stock options
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shall vest 25% per year for four (4) years and expire on the tenth anniversary of the grant date.
Restricted stock shall vest 50% after three (3) years, 75% after four (4) years, and 100% after
five (5) years.
4.5 The Company will provide to you all other employee benefits and perquisites generally
available to employees of ATMI and ATMI’s subsidiaries of equivalent position, as the same may be
in effect from time to time.
4.6 You shall be eligible to receive additional compensation, including awards of performance
bonuses at levels commensurate with employees of ATMI and ATMI’s subsidiaries of equivalent
position and grants of employee stock options, in each case in the discretion of the Compensation
Committee of the Board of Directors of ATMI. Additional incentive compensation may be earned
pursuant to the conditions of the annual letter reflecting your “MBO” goals, typically sent on or
about January 1st of the applicable year, or on a later date pursuant to any change in your
responsibilities.
5. Other Activities During Employment.
5.1 Except with the prior written consent of the ATMI’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 except as permitted by Section 5.3. 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 Company or its subsidiaries or affiliates, their business or prospects,
financial or otherwise and are consistent with your obligations regarding the confidential,
proprietary and trade secret information of the Company and its subsidiaries and affiliates.
5.2 Except as permitted by Section 5.3, you will not assume or participate in, directly or
indirectly, any position or interest adverse or antagonistic to the Company or its subsidiaries or
affiliates, their business or prospects, financial or otherwise, or take any action towards any of
the foregoing.
5.3 During the term of your employment by the Company, except on behalf of the Company or its
subsidiaries or its affiliates, you will not, directly or indirectly, whether as an officer,
director, stockholder, partner, proprietor, associate, representative or otherwise, become or be
interested in any other person, corporation, firm, partnership or other entity whatsoever which
directly competes with the Company or its subsidiaries or affiliates, in any part of the world, in
any line of business engaged in (or planned to be engaged in) by the Company or its subsidiaries or
affiliates (or any successor to their business). With respect to any company or partnership which
directly competes with the Company or its subsidiaries or affiliates, in any part of the world, in
any line of business engaged in (or planned to be engaged in) by the Company or its subsidiaries or
affiliates (or any successor to their business), this Section 5.3
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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 of such company or partnership if the same
are publicly traded, or (ii) stock or equity interests of such company or partnership through
mutual funds or other similar investment vehicles over which you retain no investment discretion.
6. Former Employment.
6.1 You represent and warrant that your employment by the Company will not conflict with and
will not be constrained by any prior employment or consulting agreement or relationship. Subject
to Section 6.2, you represent and warrant that you do not possess confidential information arising
out of prior employment (other than with the Company) which, in your best judgment, would be
utilized in connection with your employment by the Company in the absence of Section 6.2.
6.2 If, in spite of the second sentence of Section 6.l, you should find that confidential
information belonging to any former employer might be usable in connection with the Company’s
business, you will not intentionally disclose to the Company or use on its behalf any confidential
information belonging to any of your former employers; but during your employment by the Company,
you will use in the performance of your duties all information which is generally known and used by
persons with training and experience comparable to your own and all information which is common
knowledge in the industry or otherwise legally in the public domain or is legally obtainable.
7. Confidentiality.
7.1 You recognize that during the course of your employment by the Company, you may have had
or may have in the future access to confidential or 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 Company. 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 part of the public domain or generally known
within the relevant industry through no fault of yours, or that has been lawfully disclosed to you
by a third party.
7.2 Subject to Section 7.4 hereof, 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
written approval except in the proper conduct of your duties.
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7.3 Subject to Section 7.4 hereof, you will not, either during the term of your employment
with the Company or thereafter, use or cause the use of Confidential Information either for the
benefit of yourself or for the benefit of anyone other than the Company, directly or indirectly,
unless you have prior authorization from the Company.
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 to 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 Company and are fair and reasonable for numerous
reasons, including your receipt of the specific consideration expressed in the second paragraph of
this Agreement. In addition, as a result of your executive position with the Company, you have
had, and will continue to have, access to significant confidential, proprietary or trade secret
information of the Company, so that, if you were employed by a competitor of the Company, there
would be a substantial risk to the Company of your use of its confidential, proprietary or trade
secret information. Based on the foregoing, for a period of twelve (12) months after the
termination of your employment with the Company, absent the Company’s prior written approval (with
concurrence from the Board of Directors of ATMI), 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 Company in existence or under
development upon which you worked or exercised supervisory responsibility at any time during
the two (2) years prior to the termination of your employment with the Company;
(b) solicit employees of the Company to leave their employ or offer or cause to be
offered employment to any person who is or was employed by the Company at any time during
the six (6) months prior to the termination of your employment with the Company; the
foregoing does not apply to employees who have been terminated by ATMI, its subsidiaries or
affiliates or to your use of general advertising which is not specifically directed at ATMI
employees;
(c) entice, induce or encourage any of the Company’s other employees to engage in any
activity which, were it done by you, would violate any provision of this Section 8; or
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(d) otherwise attempt to interfere with or disrupt the business or activities of the
Company or its subsidiaries or affiliates after written notice and a 60-day cure period.
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 ATMI, give you written approval(s) to engage personally in any activity or render
services referred to in Section 8.l 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.l 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). Failure of the Company to respond to such written request shall be deemed
a rejection of such request.
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. 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.
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 or
consolidation 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 of
the restrictions contained in Section 8.1 shall for any reason be held to be excessively broad as
to duration, geographical scope, activity or subject, and hence unenforceable as written, 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.
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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 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:
Advanced Technology Materials, Inc.
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile No. (000)-000-0000
Attention: Xxx Xxxxxxx, CFO
0 Xxxxxxxx Xxxxx
Xxxxxxx, XX 00000
Facsimile No. (000)-000-0000
Attention: Xxx Xxxxxxx, CFO
If to you:
Xxxxx Xxxxxx
00 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxx Xxxx 00000
Facsimile No.: (914) 934 — 8826
00 Xxxxxxxxxx Xxxx
Xxx Xxxxx, Xxx Xxxx 00000
Facsimile No.: (914) 934 — 8826
10.4 If either party shall waive any breach of any provision of this Agreement, he or it 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. You hereby agree 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. You hereby irrevocably (1) agree that any suit, action or other legal proceeding
arising out of this Agreement may be brought in any Connecticut state court or United States
federal court located in Connecticut; (2) consent to the jurisdiction of each such court in any
such suit, action, or legal proceeding; (3) waive any objection which you may have to the laying of
venue of any such suit, action, or legal proceeding in any of such courts; and (4) agree that
Connecticut is the most convenient forum for litigation of any such suit, action or legal
proceeding.
10.7 This Agreement, together with the Proprietary Information and Inventions Agreement, is
the entire agreement of the parties with respect to the subject matter hereof and
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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.
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 of your choosing 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
subsidiary or affiliate thereof 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 Company on the same basis as such coverage is made available to similarly situated
officers of the Company, ATMI Sub and their subsidiaries and affiliates.
If you are in agreement with the foregoing, please so indicate by signing and returning the
enclosed copy of this letter.
| ATMI, INC. |
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| By: | ||||
| Name: | ||||
| Title: | ||||
| Accepted and agreed: _________________________________________ Xxxxx Xxxxxx |
||||
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