EXHIBIT 10.1
AGREEMENT
THIS AGREEMENT ("Agreement") is entered into as of January 8, 2001 by
and among ENTEGRIS, INC., a Minnesota corporation ("Entegris"), FLUOROWARE,
INC., a Minnesota corporation and wholly owned subsidiary of Entegris
("Fluoroware"), and METRON TECHNOLOGY N.V. (successor to METRON SEMICONDUCTORS
EUROPA, B.V.), a Netherlands corporation ("Metron").
RECITALS
A. Fluoroware, Inc. and Metron Semiconductors Europa, B.V. are parties
to that certain Distribution Agreement, dated as of July 6, 1995 (the
"Distribution Agreement"), and Kyser Company, a wholly owned subsidiary of
Metron, and Fluoroware are parties to that certain U.S. Stocking Distributor
Five-Year Agreement dated September 1, 1997 ( the "Kyser Agreement").
B. On June 7,1999, Fluoroware was consolidated into Entegris as a
wholly owned subsidiary, and Entegris effectively assumed all rights and
obligations of the Distribution Agreement and the Kyser Agreement.
C. The parties hereto wish to terminate the Distribution Agreement and
the Kyser Agreement, enter into a new distribution agreement and enter into a
transition agreement during the interim period upon the terms and conditions set
forth herein.
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged by the parties hereto, the parties, intending to
be legally bound, hereby covenant and agree as follows:
1. TERMINATION OF DISTRIBUTION AGREEMENT; RELATED TRANSACTIONS.
1.1 Termination of Distribution Agreement. On the terms and subject to
the conditions stated in this Agreement, the parties hereby agree to terminate
the Distribution Agreement and the Kyser Agreement effective as of the close of
business on February 28, 2001 ("Effective Date"); provided, however, that the
Effective Date shall not occur and neither the Distribution Agreement nor the
Kyser Agreement shall terminate in the event that the Transition Agreement (as
defined below) and the Fluid Handling Group Distribution Agreement (as defined
below) have not been executed and delivered as of the close of business on
February 28, 2001, to be effective March 1, 2001.
1.2 Stock Transfer. Entegris agrees to assign and transfer to Metron on
the Effective Date One Million One Hundred Twenty-five Thousand (1,125,000)
common shares, par value NLG 0.96 per share, of Metron ("Metron Technology
Shares"). Entegris shall deliver to Metron the share certificates representing
the Metron Technology Shares, duly endorsed (or accompanied by duly executed
stock powers) and with signatures guaranteed by a commercial bank or by a member
firm of the New York Stock Exchange.
1.3 Termination Fee. If the Effective Date has occurred, Entegris
agrees to pay to Metron a termination fee in the amount of One Million Seven
Hundred Fifty Thousand Dollars ($1,750,000) (the "Termination Fee"). The
Termination Fee will be paid by wire transfer of immediately available funds to
an account designated in writing by Metron according to the following schedule:
May 31, 2001: $750,000
August 31, 2001: $500,000
November 30, 2001: $200,000
February 28, 2002: $150,000
May 31, 2002: $150,000
2. REPRESENTATIONS AND WARRANTIES OF ENTEGRIS. Entegris represents and warrants
to Metron at and as of the date of this Agreement and as of the Effective Date
as follows:
2.1 Ownership of Metron Technology Shares. Entegris is the owner of the
Metron Technology Shares, free and clear of all liens and encumbrances.
2.2 Authority; Binding Nature of Agreement. Entegris has the absolute
and unrestricted right, power and authority to enter into and to perform its
obligations under this Agreement; and the execution, delivery and performance by
Entegris of this Agreement have been duly authorized by all necessary action on
the part of Entegris and its stockholders, board of directors and officers. This
Agreement constitutes the legal, valid and binding obligation of Entegris,
enforceable against Entegris in accordance with its terms.
2.3 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement will not, with or without the
passage of time or giving of notice, result in any material violation, or be in
conflict with or constitute (with or without the passage of time or giving of
notice) a default under any term of its articles of incorporation, bylaws or
shareholder resolutions, or of any provision of any mortgage, indenture,
contract, agreement, instrument or contract to which Entegris is a party or by
which it is bound or of any judgment, decree, order, writ or, to the best of its
knowledge, any statute, rule or regulation applicable to it, or result in the
creation of any mortgage, pledge, lien, encumbrance or charge upon any of the
properties or assets of Entegris or the suspension, revocation, impairment,
forfeiture or nonrenewal of any permit license, authorization or approval
applicable to Entegris, its business or operations or any of its assets or
properties.
2.4 Accuracy of Representations and Warranties. The representations and
warranties of Entegris contained in this Agreement contain no untrue statement
of a material fact and do not omit or misstate a material fact necessary in
order to make the statements contained herein not misleading in the light of the
circumstances in which they are made.
3. REPRESENTATIONS AND WARRANTIES OF METRON. Metron represents and warrants to
Entegris at and as of the date of this Agreement and as of the Effective Date as
follows:
3.1 Authority; Binding Nature of Agreement. Metron has the absolute and
unrestricted right, power and authority to enter into and to perform its
obligations under this Agreement; and the execution, delivery and performance by
Metron of this Agreement have been duly authorized by all necessary action on
the part of Metron and its shareholders, supervisory
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board, managing board and officers. This Agreement constitutes the legal, valid
and binding obligation of Metron, enforceable against Metron in accordance with
its terms.
3.2 Compliance with Other Instruments. The execution, delivery and
performance of and compliance with this Agreement will not, with or without the
passage of time or giving of notice, result in any material violation, or be in
conflict with or constitute (with or without the passage of time or giving of
notice) a default under any term of its articles of association or shareholder
resolutions, or of any provision of any mortgage, indenture, contract,
agreement, instrument or contract to which Metron is a party or by which it is
bound or of any judgment, decree, order, writ or, to the best of its knowledge,
any statute, rule or regulation applicable to it, or result in the creation of
any mortgage, pledge, lien, encumbrance or charge upon any of the properties or
assets of Metron or the suspension, revocation, impairment, forfeiture or
nonrenewal of any permit license, authorization or approval applicable to
Metron, its business or operations or any of its assets or properties.
3.3 Accuracy of Representations and Warranties. The representations and
warranties of Metron contained in this Agreement contain no untrue statement of
a material fact and do not omit or misstate a material fact necessary in order
to make the statements contained herein not misleading in the light of the
circumstances in which they are made.
4. PRE-TERMINATION COVENANTS.
4.1 Transition Agreement. The parties shall negotiate in good faith to
enter into a Transition Agreement as soon as practicable after the date of this
Agreement, but no later than January 31, 2001 ("Transition Agreement"). The
Transition Agreement shall set forth the terms and conditions upon which the
parties shall conduct their relationships under the Distribution Agreement and
the Kyser Agreement during the period from the date of this Agreement through
the Effective Date, including, without limitation, order fulfillment, interim
order processing, payment of commissions, personnel matters and inventory
repurchase.
4.2 Fluid Handling Group Distribution Agreement. The parties shall
negotiate in good faith to enter into a Fluid Handling Group Distribution
Agreement as soon as practicable after the date of this Agreement, but no later
than February 15, 2001 ("Fluid Handling Group Distribution Agreement"). The
Fluid Handling Group Distribution Agreement shall set forth the terms and
conditions (it being understood that such terms and conditions shall be
generally consistent with the terms and conditions included in the Kyser
Agreement) upon which Metron and its subsidiaries shall act as distributors for
Entegris' Fluid Handling Group in Europe, Asia and the territories in the United
States currently covered by the Kyser Agreement for an initial 54 month term
beginning on the Effective Date. The Fluid Handling Group Distribution Agreement
shall include a provision that will restrict Metron from entering into any new
business that competes with any product or service group currently offered by
Entegris, with the terms of such restriction to be more explicitly described in
the Fluid Handling Group Distribution Agreement. The Fluid Handling Group
Distribution Agreement shall only be cancelable by mutual consent or for
material non-performance that is not cured after notification thereof and
expiration of an agreed upon correction period.
4.3 Disclosure. The parties shall consult with each other regarding a
joint press release announcing the termination of the Distribution Agreement and
before issuing any other
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public statement with respect to this Agreement or any of the other transactions
contemplated by this Agreement.
4.4 Restriction on Transfer of Metron Technology Shares. Entegris
agrees that it shall not directly or indirectly, offer, sell, offer to sell,
contract to sell, pledge, grant any option to purchase or otherwise sell or
dispose (or announce any offer, sale, offer of sale, contract of sale, pledge,
grant of any option to purchase or other sale or disposition) of the Metron
Technology Shares prior to the Effective Date.
4.5 No Hiring or Solicitation of Employees. Except as may be provided
in the Transition Agreement, Entegris agrees that, during the period from the
date of this Agreement through the Effective Date, Entegris shall not, and shall
not permit any of its representatives to: (a) hire any employee of Metron or (b)
directly or indirectly, personally or through others, encourage, induce, attempt
to induce, solicit or attempt to solicit any employee to leave his or her
employment with Metron or any of Metron's subsidiaries.
5. MISCELLANEOUS.
5.1 Severability. In the event that any provision of this Agreement, or
the application of any such provision to any party hereto or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to the parties hereto or circumstances other than
those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue to
be valid and enforceable to the fullest extent permitted by law.
5.2 Governing Law. This Agreement shall be construed in accordance
with, and governed in all respects by, the internal laws of the State of
California (without giving effect to principles of conflicts of laws).
5.3 Dispute Resolution.
(a) The parties agree to use prompt and commercially
reasonable efforts to resolve any disputes which may arise under this
Agreement in an amicable and good faith manner but otherwise agree
that, in the absent of such agreement, any claim, dispute, or
controversy of whatever nature arising out of or relating to this
Agreement, including, without limitation, any action or claim based on
tort, contract, or statute (including any claims of breach or violation
of statutory or common law protections from discrimination, harassment
and hostile working environment), or concerning the interpretation,
effect, termination, validity, performance and/or breach of this
Agreement ("Claim"), shall be resolved by final and binding arbitration
before a single arbitrator ("Arbitrator") selected from and
administered by the American Arbitration Association (the
"Administrator") in accordance with its then existing arbitration rules
or procedures regarding commercial or business disputes. The
arbitration shall be held in the County of Santa Clara or the County of
San Mateo, California.
(b) The Arbitrator shall, within fifteen (15) calendar days
after the conclusion of the Arbitration hearing, issue a written award
and statement of decision describing the essential findings and
conclusions on which the award is based, including the calculation of
any damages awarded. The Arbitrator shall be authorized to award
compensatory damages, but shall NOT be authorized (i) to award
non-economic damages, such as for emotional distress, pain and
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suffering or loss of consortium, (ii) to award punitive damages, or
(iii) to reform, modify or materially change this Agreement or any
other agreements contemplated hereunder; provided, however, that the
damage limitations described in parts (i) and (ii) of this sentence
will not apply if such damages are statutorily imposed. The Arbitrator
also shall be authorized to grant any temporary, preliminary or
permanent equitable remedy or relief he or she deems just and equitable
and within the scope of this Agreement, including, without limitation,
an injunction or order for specific performance.
(c) Each party shall bear its own attorney's fees, costs, and
disbursements arising out of the arbitration, and shall pay an equal
share of the fees and costs of the Administrator and the Arbitrator;
provided, however, the Arbitrator shall be authorized to determine
whether a party is the prevailing party, and if so, to award to that
prevailing party reimbursement for its reasonable attorneys' fees,
costs and disbursements (including, for example, expert witness fees
and expenses, photocopy charges, travel expenses, etc.), and/or the
fees and costs of the Administrator and the Arbitrator. Absent the
filing of an application to correct or vacate the arbitration award
under California Code of Civil Procedure sections 1285 through 1288.8,
each party shall fully perform and satisfy the arbitration award within
15 days of the service of the award.
(d) By agreeing to this binding arbitration provision, the
parties understand that they are waiving certain rights and protections
which may otherwise be available if a Claim between the parties were
determined by litigation in court, including, without limitation, the
right to seek or obtain certain types of damages precluded by this
Section 5.3, the right to a jury trial, certain rights of appeal, and a
right to invoke formal rules of procedure and evidence.
5.4 Counterparts. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
5.5 Entire Agreement. This Agreement, the Transition Agreement and the
Fluid Handling Group Distribution Agreement set forth the entire understanding
of the parties relating to the subject matter hereof and thereof and supersedes
all prior agreements and understandings among or between any of the parties
relating to the subject matter hereof or thereof.
5.6 Waiver.
(a) No failure on the part of any party to this Agreement to
exercise any power, right, privilege or remedy under this Agreement,
and no delay on the part of any party to this Agreement in exercising
any power, right, privilege or remedy under this Agreement, shall
operate as a waiver of such power, right, privilege or remedy; and no
single or partial exercise of any such power, right, privilege or
remedy shall preclude any other or further exercise thereof or of any
other power, right, privilege or remedy.
(b) No party to this Agreement shall be deemed to have waived
any claim arising out of this Agreement, or any power, right, privilege
or remedy under this Agreement, unless the waiver of such claim, power,
right, privilege or remedy is expressly set forth in a written
instrument duly executed and delivered on behalf of such party; and any
such waiver shall not be applicable or have any effect except in the
specific instance in which it is given.
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5.7 Successors and Assigns; Assignment. This Agreement shall be binding
upon and shall inure to the benefit of the parties' respective successors and
permitted assigns (if any). Neither party may assign any or all of its rights
under this Agreement in whole or in part, to any other party except in the case
of any tender offer, exchange offer, merger, business combination, asset sale,
recapitalization, restructuring, liquidation, dissolution or extraordinary
transaction involving either of the parties hereto or Metron Technology N.V.
5.8 Further Assurances. The parties agree to execute and/or cause to be
delivered to the other party such instruments and other documents, and shall
take such other actions, as such party may reasonably request at any time for
the purpose of carrying out or evidencing any of the provisions of this
Agreement.
5.9 Headings. The headings contained in this Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Agreement and shall not be referred to in connection with the construction or
interpretation of this Agreement.
5.10 Construction.
(a) For purposes of this Agreement, whenever the context
requires: the singular number shall include the plural, and vice versa;
the masculine gender shall include the feminine and neuter genders; the
feminine gender shall include the masculine and neuter genders; and the
neuter gender shall include the masculine and feminine genders.
(b) The parties hereto agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting
party shall not be applied in the construction or interpretation of
this Agreement.
(c) As used in this Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, but rather shall be deemed to be followed by the words
"without limitation."
(d) Except as otherwise indicated, all references in this
Agreement to "Sections" are intended to refer to Sections of this
Agreement.
5.11 Amendment. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of Entegris and Metron (or by their duly designated
successors).
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IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed as of the date first above written.
"ENTEGRIS": ENTEGRIS, INC.,
a Minnesota corporation
By: /s/ Stan Geyer
Name: Stan Geyer
Title: Chief Executive Officer
"FLUOROWARE": FLUOROWARE, INC.,
a Minnesota corporation
By: /s/ Stan Geyer
Name: Stan Geyer
Title: Chief Executive Officer
"METRON": METRON TECHNOLOGY, N.V.,
a Netherlands corporation
By: /s/ Edward Segal
Name: Edward Segal
Title: President and Chief Executive Officer
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