EXHIBIT 9.2
SHAREHOLDER AGREEMENT (EMPAK)
This Shareholder Agreement, dated as of June __, 1999, is made by and
between Entegris, Inc., a Minnesota corporation (the "Company"), and the
undersigned shareholders (collectively, "Shareholders" and each individually, a
"Shareholder") of Empak, Inc., a Minnesota corporation ("Empak"). Capitalized
terms used in this agreement and not defined herein shall have the meanings
ascribed to them in the Consolidation Agreement (as defined below).
WHEREAS, Empak and Fluoroware, Inc., a Minnesota corporation
("Fluoroware"), have agreed to consolidate their business operations pursuant to
a Consolidation Agreement, dated June 1, 1999 (the "Consolidation Agreement"),
by and among Flouroware, Empak and the Company, which provides for the exchange
(the "Exchange") of all of the outstanding equity interests in each of
Flouroware and Empak for all of the outstanding shares of common stock of the
Company (the "Company Shares");
WHEREAS, Shareholders are record and beneficial owners of all of the
outstanding common stock of Empak (the "Empak Shares") and intend to exchange
their Empak Shares for Company Shares on the terms set forth in the
Consolidation Agreement and in this agreement;
WHEREAS, the parties to the Consolidation Agreement have conditioned the
consummation of the Exchange on, among other things, the execution by
Shareholders and the Company of this agreement.
NOW, THEREFORE, in consideration of the receipt of the Company Shares, as
an inducement to Fluoroware and Empak and the other shareholders of Fluoroware
to complete the Exchange, and other good and valuable consideration, the receipt
and adequacy of which are hereby acknowledged, Shareholders and the Company
agree as follows:
1. Exchange of Shares. At the time and in the manner contemplated by the
Consolidation Agreement, each Shareholder shall assign and transfer to the
Company, in exchange for the number of Company Shares that is determined
pursuant to the Consolidation Agreement, all of such Shareholders's right, title
and interest in the Empak Shares owned by such Shareholder, which Empak Shares
shall be transferred to the Company free and clear of all liens, encumbrances
and restrictions. On or prior to the Closing Date, each
Shareholder will deliver to the Empak Representative for delivery to the Company
at the Closing of the Exchange the stock certificate(s) evidencing such
Shareholder's Empak Shares, which stock certificates(s) will be properly
endorsed or accompanied by a properly executed stock power. On the Closing Date,
and subject to the satisfaction or waiver of the closing conditions set forth in
the Consolidation Agreement, the Company shall issue and deliver to each
Shareholder a certificate evidencing the number of Company Shares issuable to
such Shareholder pursuant to section 2.1(b)(i) of the Consolidation Agreement.
On the first anniversary of the Closing Date, the Company shall also issue and
deliver to each Shareholder a certificate evidencing the additional number of
Company Shares issuable to such Shareholder pursuant to section 2.1(b)(ii) of
the Consolidation Agreement.
2. Shareholders Representations and Warranties. As a material inducement to
the Company and the other Shareholders of both Empak and Fluoroware to complete
the Exchange, each o f the Shareholders represents, warrants and acknowledges,
for itself, as follows:
2.1 Authorization. The execution of and the performance by it of its
obligations under this agreement have been validly authorized by all action
necessary to make this agreement the legal and binding obligation of such
Shareholder.
2.2 Share Ownership. Such Shareholder owns, beneficially and of
record, all of the Empak Shares set forth after its name on schedule A to
this agreement, which Empak Shares will be transferred to the Company on
the Closing Date free and clear of any claims, liens, charges, equities,
and encumbrances or other restrictions which would in any way impair such
Shareholders's right to effectively transfer such Empak Shares to the
Company.
2.3 Investment Representations. The Company Shares issuable to such
Shareholder pursuant to the Consolidation Agreement are being acquired by
such Shareholder for investment purposes and not with the view toward the
distribution or sale thereof in a public offering within the meaning of the
Securities Act of 1933 (the "Securities Act") or any rule or regulation
under the Securities Act. Such Shareholder has sufficient experience in
business, financial and investment matters to be able to evaluate the risks
involved in the Exchange of its Empak Shares for Company Shares and to make
an informed investment decision with respect to that transaction and is
able to bear the economic risk of holding the Shares for an indefinite
period. Such Shareholder acknowledges that (i) the Company Shares have not
been registered under either the Securities Act or applicable state
securities law, and the Company will be relying upon the
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foregoing investment representations in issuing the Company Shares to it
and the other shareholders of Empak and Fluoroware, (ii) the Company has no
obligation or current intention to register the Company Shares under the
Securities Act of 1933 (the "Securities Act") or any state securities laws,
(iii) the Company Shares cannot be sold, transferred or otherwise disposed
of unless they are subsequently registered under the Securities Act or
applicable state securities laws or exemptions from registration are then
available, (iv) and the transferability of the Company Shares will be
subject to restrictions imposed by all applicable federal and state
security laws and the certificates evidencing such Company Shares will be
imprinted with a legend setting forth such restrictions.
2.4. Empak Holdback Shares. Each Shareholder acknowledges that a
portion of the Company Shares that such Shareholder is entitled to receive
on the completion of the Exchange will be held back and delivered to such
Shareholder the first anniversary of the Closing Date, but that such
held-back shares will be subject to any prorata reductions which may result
from a Empak Adjustment, as defined in the Consolidation Agreement.
3. Negotiations. Until the Closing Date or such earlier date as the
transactions contemplated by the Consolidation Agreement are abandoned, each
Shareholder agrees that it will not enter into any negotiations or agreements,
or make any undertaking or commitment, (i) to sell, transfer or otherwise
dispose of any of the Empak Shares owned by such Shareholder on the date of this
agreement, (ii) take any action to cause or permit Empak to merger or
consolidate with, or acquire substantially all of the property and assets of,
any other corporation or person, (iii) take any action to cause or permit Empak
to sell, lease or exchange all or substantially all of its properties and assets
to any other corporation or person or (iv) otherwise cause or permit the
ownership or control of Empak to be transferred to any other party other than
the Company pursuant to the Consolidation Agreement.
4. Designation of Shareholders Representative.
4.1 Shareholders hereby designates Xxxxx Xxxxxxxx and Xxxxxx X. Xxxxx
as their representatives (the "Empak Representatives") for purposes (i) of
resolving, settling or otherwise dealing with any indemnification claims
made against the Empak Holdback Shares pursuant to the Consolidation
Agreement, (ii) of pursuing claims against the Empak Holdback Shares
pursuant to the Consolidation Agreement, and (iii) of otherwise acting as
the representative of Shareholders on matters specified in the
Consolidation Agreement and in this agreement.
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4.2 Shareholders acknowledges that, until such time as no Empak
Holdback Shares remain subject to the Consolidation Agreement, the Empak
Representatives may only be removed by a consent of the Empak Shareholderss
who before the Closing Date owned a Majority of the Empak Shares then
outstanding upon written notice to the Empak Representatives. If either
Empak Representative dies, becomes incapacitated, resigns or is removed by
a Majority, the Majority shall appoint a successor Empak Representative.
During any period during which there is no person serving as an Empak
Representative, except where due to the resignation or removal of a
representative, all time periods imposed upon the Empak Representatives
pursuant to the Consolidation Agreement shall be tolled.
4.3 Shareholders hereby authorizes the Empak Representatives to make
and deliver any certificate, notice, consent or instrument required or
permitted to be made or delivered under the Consolidation Agreement, this
agreement or the documents referred to in such agreements which the Empak
Representatives determine in their sole and absolute discretion to be
necessary, appropriate or desirable, and, in connection therewith, to hire
or retain such counsel, investment bankers, accountants, representatives,
and other professional advisors as they determine in their sole and
absolute discretion to be necessary, advisable or appropriate in order to
carry out and perform their rights and obligations under this agreement and
the Consolidation Agreement, and the Empak Representatives shall have the
right to rely in good faith upon the advise they receive from any such
persons.
4.4 The Empak Representatives may on behalf of Shareholders consent to
or object to any claim for indemnification by the Company or the Empak
Shareholders, and shall have the authority to initiate litigation or
arbitration pursuant to and subject to the terms of the Consolidation
Agreement.
4.5 Each Shareholder hereby releases the Empak Representatives from
any liability to such Shareholder for any act or omission to act in their
capacity as Empak Representatives unless such Shareholder is able to prove
that the Empak Representatives were guilty of willful misconduct or bad
faith.
4.6 The Empak Representatives shall be entitled to prorata
reimbursement by Shareholders of all out of pocket costs and/or expenses
incurred by them in carrying out their responsibilities under this
agreement or the Consolidation Agreement. In the event that the Empak
Representatives reasonably determines that it is necessary or desirable to
have the Shareholders advance
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funds to cover out of pocket costs or expenses incurred or to be incurred
by them, they may notify Shareholders of such request to participate
ratably in accordance with each Shareholder's respective interest in such
costs and expenses. The notice shall contain such other terms and
conditions as the Empak Representatives determines to be necessary or
desirable, and shall set forth the amount which they have reasonably
determined to be necessary to cover such costs and expenses and each
Shareholder's allocable share of such amount. Each Shareholder shall have
ten (10) business days to respond to the request and to deliver a check to
the Empak Representative for such Shareholder's allocable share of the
amount required, or such greater amount as such Shareholder desires to
advance. In no event shall the Company, Fluoroware or Empak be responsible
for the costs or expenses of the Empak Representatives.
5. Organizational Matters. Each Shareholder hereby consents to (a) the
organization, designation and removal provisions relating to the Board of
Directors of the Company that are described in section 1.2 of the Consolidation
Agreement, and (b) the appointment of, and designation of authority to, the
Board Integration Team which is described in section 1.3 of the Consolidation
Agreement.
6. Miscellaneous.
6.1 Complete Agreement. This agreement and the Consolidation Agreement
contain the complete agreement between Shareholders and the Company
relating to the matters discuss herein and therein and supersede any prior
understandings, agreements or representations by or between the parties,
written or oral, which may have related to the subject matter hereof in any
way. This agreement may not be amended or waived except in a writing
executed by the party against which such amendment or waiver is sought to
be enforced. No course of dealing between or among any persons having any
interest in this agreement will be deemed effective to modify or amend any
part of this agreement or any rights or obligations of any person under or
by reason of this agreement.
6.2 Notices. All notices, demands and other communications to be given
or delivered under or by reason of the provisions of this agreement will be
in writing and will be deemed to have been given when personally delivered
or three days after being mailed, if mailed by first class mail, return
receipt requested, or when receipt is acknowledged, if sent by facsimile,
telecopy or other electronic transmission device. Notices, demands and
communications will, unless another address is specified in writing, be
sent to
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Shareholders at their respective addresses set forth on schedule A to this
agreement and to the Company at its principal business offices.
6.3 Assignment. This agreement and all of the provisions hereof will
be binding upon and inure to the benefit of the parties hereto and their
respective successors and permitted assigns.
6.4 Counterparts. This agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than
one party, but all such counterparts taken together will constitute one and
the same instrument. This agreement shall not be binding until it is
executed by all of the parties hereto.
6.5 Governing Law. The internal law, without regard for conflicts of
laws principles, of the State of Minnesota will govern all -------------
questions concerning the construction, validity, interpretation and
enforcement of this agreement.
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IN WITNESS WHEREOF, an authorized representative of the Company and each of
the Shareholders have executed this agreement as of the date set forth in the
first paragraph.
MARUENI CORPORATION
By
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Title:
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MARUENI AMERICACORPORATION
By
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Title:
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WCB HOLDINGS, LLC
By
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Title:
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ENTEGRIS, INC.
By
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Title:
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SCHEDULE A
Shareholder Empak
Name & Address Shares
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WCB Holdings, LLC 5,890,303
000 Xxxx Xxxxx
Xxxxxx, XX 00000
Attn: Xxxx Xxxxxxxx, Chief Manager
(With a copy of notices to
Xxxxxx X. Xxxxx, Esq.
Xxxxxx X. Xxxxx & Associates, P.A.
000 Xxxxxxxxx Xxxxx III
0000 Xxxxxxx Xxxx
Xxxxxxxxxxx, XX 00000)
Marubeni Corporation 396,215
0-0,xxxxxxxxx 0-xxxxx
Xxxxxxx - xx
Xxxxx, Xxxxx
Attn: General Manager
Electric Materials Department
Marubeni America Corporation 264,144
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attn: General Manager
General Plastics Division
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