EXHIBIT 10.2
TRANSITION AGREEMENT
This TRANSITION AGREEMENT ("Agreement") is entered into as of February
13, 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., a Netherlands corporation
and its subsidiaries ("Metron").
RECITALS
A. Entegris, Inc., Fluoroware, Inc., a Minnesota corporation and wholly
owned subsidiary of Entegris, and Metron Technology N.V. are parties to that
certain Agreement, dated as of January 8, 2001, which provides the terms and
conditions upon which the parties would terminate their existing distribution
arrangements and further provides that the parties would use their commercially
reasonable best efforts to enter into a transition agreement and a new
distribution agreement.
B. Fluoroware, Inc. and Metron Semiconductors Europa, B.V. (predecessor
to Metron) are parties to that certain Distribution Agreement, dated as of July
6, 1995 (the "Metron 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").
C. The parties hereto wish to enter into an agreement to set forth the
terms and conditions upon which the parties will conduct their business
relationship from the date of this Agreement through April 30, 2001 (the
"Transition Period") and wind down their business relationship with respect to
Metron's distribution of Entegris' microelectronics materials management
products ("Microelectronics Group Products").
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. CONDUCT OF BUSINESS DURING TRANSITION PERIOD.
1.1 Current Order Fulfillment.
(a) Europe. Orders from customers located in Europe will be
handled in accordance with this Section 1.1(a). On or prior to April
1,2001, Metron shall prepare a list of outstanding orders as of March
31, 2001 and designate which orders are for delivery on or prior to
June 30, 2001 and which orders are for delivery on or after July 1,
2001. Metron shall receive full margin (pursuant to the Metron
Agreement or the Kyser Agreement, as applicable) on all orders
submitted by March 31, 2001 for delivery on or prior to June 30, 2001.
If after placement of an order, a customer delays an order such that
delivery is not scheduled to occur on or prior to
1.
June 30, 2001, Metron shall receive a ten percent (10%) sales
commission (or previously negotiated commission rate) on the order,
rather than its full margin. Metron shall receive a ten percent (10%)
sales commission (or previously negotiated commission rate) on all
orders submitted by March 31, 2001 for delivery scheduled from July 1,
2001 through September 30, 2001.
(b) Asia. Orders from customers located in Asia will be
handled in accordance with this Section 1.1(b). On or prior to May
1,2001, Metron shall prepare a list of outstanding orders as of April
30, 2001 and designate which orders are for delivery on or prior to
July 31, 2001 and which orders are for delivery on or after August 1,
2001. Metron shall receive full margin (pursuant to the Metron
Agreement or the Kyser Agreement, as applicable) on all orders
submitted by April 30, 2001 for delivery on or prior to July 31, 2001.
If after placement of an order, a customer delays an order such that
delivery is not scheduled to occur on or prior to July 31, 2001, Metron
shall receive a ten percent (10%) sales commission (or previously
negotiated commission rate) on the order, rather than its full margin.
Metron shall receive a ten percent (10%) sales commission (or
previously negotiated commission rate) on all orders submitted by April
30, 2001 for delivery scheduled from August 1, 2001 through October 31,
2001.
(c) Metron shall receive a commission of $828,487 for its work
on the Philips Principle Solution contract (the "Philips Commission").
Entegris will pay the Philips Commission by wire transfer of
immediately available funds to an account designated in writing by
Metron according to the following schedule:
November 15, 2001: $414,243
February 15, 2002: $414,244
(d) The parties agree to conduct their business in the
ordinary course from the date of this Agreement through March 31, 2001
with respect to customers located in Europe and April 30, 2001 with
respect to customers located in Asia. During the Transition Period,
Entegris agrees not to encourage customers to either postpone the
placement of orders until after March 31, 2001 with respect to
customers located in Europe or April 30, 2001 with respect to customers
located in Asia or to cancel current orders with Metron, and Metron
agrees not to encourage customers to accelerate the placement of orders
for scheduled delivery. In the event that a customer cancels an order
with Metron on or prior to March 31, 2001 with respect to customers
located in Europe or April 30, 2001 with respect to customers located
in Asia and places with Entegris on or prior to June 30, 2001 with
respect to customers located in Europe or July 31, 2001 with respect to
customers located in Asia an order substantially similar to, or smaller
than, the order originally placed with (and to be shipped by) Metron,
Metron shall receive full margin (pursuant to the Metron Agreement or
the Kyser Agreement, as applicable) on the order placed with Entegris.
1.2 New Orders. If Entegris receives an order from Metron on or prior
to March 31, 2001 with respect to customers located in Europe or April 30, 2001
with respect to customers located in Asia, Entegris shall process such order in
the ordinary course of business in accordance with the terms of the Metron
Agreement and the Kyser Agreement. Metron shall not accept any orders after
March 31, 2001 with respect to customers located in Europe and April 30,
2.
2001 with respect to customers located in Asia without the prior consent of
Entegris. In the event that Metron accepts any orders pursuant to the preceding
sentence, Metron shall receive full margin (pursuant to the Metron Agreement or
the Kyser Agreement, as applicable) on such orders.
1.3 Payment of Sales Commissions. On or prior to May 31, 2001, Metron
shall prepare a list of sales commissions owed to it by Entegris as of April 30,
2001. Entegris shall continue to provide Metron with copies of all ISS orders it
receives through the close of business on February 28, 2001, and Metron shall
receive a five percent (5%) sales commission (or previously negotiated
commission rate) on all ISS orders received by Entegris through the close of
business on February 28, 2001. Entegris shall pay Metron sales commissions owed
to it pursuant to the Metron Agreement or the Kyser Agreement, as applicable.
1.4 Payables. Except for any payables that Metron has identified as
disputed invoices, Metron will comply with the payment terms of the Metron
Agreement or the Kyser Agreement, as applicable, on all payables to Entegris
prior to Entegris making any payment to Metron in association with early
termination of the Metron Agreement and the Kyser Agreement.
1.5 Ongoing Support Obligations. From and after April 1, 2001 with
respect to customers located in Europe and May 1, 2001 with respect to customers
located in Asia, Entegris shall assume all ongoing support obligations for
Microelectronics Group Products, including all warranty obligations and first
call support. Notwithstanding the foregoing, Metron shall continue to provide
ongoing support for IMEC and Philips Hamburg.
1.6 Customer Receivables. Metron shall retain customer receivables with
respect to orders placed on or prior to March 31, 2001 with respect to customers
located in Europe and April 30, 2001 with respect to customers located in Asia;
provided, however, that Metron shall be entitled to sell to Entegris, at face
value, any receivables with respect to orders placed between January 1, 2001 and
March 31, 2001 with respect to customers located in Europe and between February
1, 2001 and April 30, 2001 with respect to customers located in Asia that remain
outstanding as of June 30, 2001 and July 31, 2001, respectively, to the extent
that a customer has indicated that it has not paid amounts due as a result of
product performance issues.
1.7 Employee Matters.
(a) A list of Metron employees involved with the
microelectronics group business is attached as Exhibit A hereto (the
"Employees"). On or before February 28, 2001, Entegris shall extend
offers of employment to the Employees, with such employment becoming
effective April 1, 2001 with respect to Employees located in Europe,
and May 1, 2001 with respect to Employees located in Asia. On or after
March 1, 2001, except for any of the Employees who accept employment
with Entegris after an offer is extended pursuant to the preceding
sentence (the "Entegris Employees"), Entegris shall not, and shall not
permit any of it representatives to (i) hire any employee of Metron or
(ii) 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 during the period from the date of this Agreement through
the first anniversary of the date hereof. Additional terms
3.
related to the possible employment by Entegris of the Employees,
including certain indemnification obligations of Metron, are set forth
on Annex (NL) attached hereto.
(b) Effective March 1, 2001, Entegris shall reimburse Metron
on a monthly and proportionate basis for all wages, salaries, holiday
pay, PAYE, income tax and national insurance contributions and other
periodic outgoings (including pension contributions) payable for the
remainder of the Transition Period to or in relation to any Entegris
Employees.
1.8 Automobile and other Leases; Personal Computers; Mobile Telephones.
Entegris shall reimburse Metron on a quarterly calendar basis for all payments
due on lease agreements for automobiles used by the Entegris Employees. In the
event that any of the Entegris Employees use the apartment leased by Metron in
Taiwan, Entegris shall reimburse Metron on a quarterly calendar basis for those
employees' pro rata share of the payments due on the lease agreement for the
apartment. As of the close of business on March 31, 2001, Entegris shall pay to
Metron a purchase price of $1,000 per person for the personal computers and
mobile telephones used by the Entegris Employees located in Europe, and title to
such personal computers and mobile telephones shall transfer to Entegris. As of
the close of business on April 30, 2001, Entegris shall pay to Metron a purchase
price of $1,000 per person for the personal computers and mobile telephones used
by the Entegris Employees located in Asia, and title to such personal computers
and mobile telephones shall transfer to Entegris.
2. OTHER COVENANTS OF THE PARTIES.
2.1 Inventory Repurchase. Metron shall prepare on or prior to June 30,
2001 a list of Microelectronics Group Products inventory that it desires to have
repurchased by Entegris. Within 30 days of receipt of the list referred to in
the preceding sentence, Entegris will perform an on-site inspection of such
inventory and provide Metron with return instruction for that inventory that is
approved for return under the terms of the existing distribution agreement
between Metron and Entegris, such approval not to be unreasonably withheld. In
accordance with Section 4.5 of the existing distribution agreement between
Metron and Entegris, within 30 days of any transfer of inventory to Entegris,
Entegris shall reimburse Metron for the purchase price paid for inventory
returned in good condition to Entegris.
2.2 Customer Contact. The parties shall issue a joint letter to
customers regarding the transition. During the Transition Period, each party
shall obtain the consent of the other party prior to any contact with customers
regarding the transition.
2.3 Disclosure. The parties shall consult with each other before
issuing any public statement with respect to this Agreement or any of the other
transactions contemplated by this Agreement.
3. MISCELLANEOUS.
3.1 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
4.
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.
3.2 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).
3.3 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
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.
5.
(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.
3.4 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.
3.5 Entire Agreement. This Agreement sets forth the entire
understanding of the parties relating to the subject matter hereof and
supersedes all prior agreements and understandings among or between any of the
parties relating to the subject matter hereof.
3.6 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.
3.7 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.
3.8 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.
3.9 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.
3.10 Construction.
6.
(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.
3.11 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).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7.
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: Chairman of the Board
"FLUOROWARE": FLUOROWARE, INC.
a Minnesota corporation
By: /s/ Stan Geyer
Name: Stan Geyer
Title: Chairman
"METRON": METRON TECHNOLOGY, N.V.,
a Netherlands corporation
By: /s/ Edward Segal
Name: Edward Segal
Title: President and Chief Executive Officer
8.
[Metron Letterhead]
February 23, 2001
Entegris, Inc.
Fluoroware, Inc.
3500 Lyman Boulevard
Chaska, MN 55318
Ladies and Gentlemen:
This letter sets forth the agreement between Metron Technology N.V., a
Netherlands corporation ("Metron"), Entegris, Inc., a Minnesota corporation
("Entegris"), and Fluoroware, Inc., a Minnesota corporation and wholly owned
subsidiary of Entegris ("Fluoroware") with respect to certain arrangements
contemplated in that certain Agreement dated as of January 8, 2001 (the
"Agreement"). Any capitalized terms not otherwise defined herein shall have the
meanings set forth in the Agreement. For good and valuable consideration, the
receipt of which is hereby acknowledged, and the parties hereto hereby agree as
follows:
1. Stock Transfer. Entegris agrees to assign and transfer to Metron as
of the close of business on February 28, 2001, or as soon as practicable
thereafter, the Metron Technology Shares.
2. Termination Fee. Entegris agrees to pay to Metron the Termination
Fee according to the following schedule:
June 15, 2001: $750,000
September 15, 2001: $500,000
December 15, 2001: $200,000
February 28, 2002: $150,000
May 31, 2002: $150,000
3. Governing Law. This letter 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).
4. Counterparts. This letter 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. Waiver/Modification. No modification or amendment to or waiver of
this letter agreement will be binding and valid unless it is in writing and
executed by the party against whom enforcement is sought. No waiver of any
breach of this letter agreement or of any default hereunder shall be deemed a
waiver of any other breach or default of this letter agreement.
If you are in agreement with the above terms and conditions, please
indicate your acceptance by signing the space provided below.
Entegris, Inc.
Fluoroware, Inc.
February 23, 2001
Page Two
Very truly yours,
METRON TECHNOLOGY N.V.
By: /s/ Edward Segal
Name: Edward Segal
Title: President and Chief and Executive
Officer
ACCEPTED AND AGREED TO THIS
23rd DAY OF FEBRUARY, 2001:
ENTEGRIS, INC.
By: /s/ Stan Geyer
Name: Stan Geyer
Title: Chairman of the Board
FLUOROWARE, INC.
By: /s/ Stan Geyer
Name: Stan Geyer
Title: Chairman of the Board