INDEMNIFICATION AGREEMENT
This INDEMNIFICATION AGREEMENT (this "Indemnification Agreement") is
made as of the ___day of _________, 1999, by and among Metron Technology
B.V., a corporation organized and existing under the laws of the Netherlands
(the "Company"), and the investors listed on the Schedule of Investors
attached hereto as Exhibit A (the "Investors").
RECITALS
WHEREAS, the Company and the Investors (as well as other shareholders of
the Company) are party to an Investor Rights Agreement dated as of July 6,
1995 (the "Investor Rights Agreement").
WHEREAS, the Company and the Investors desire to supplement the
indemnification provisions set forth in Section 1.8 of the Investor Rights
Agreement as set forth in this Indemnification Agreement.
WHEREAS, simultaneously with the execution of this Indemnification
Agreement, the Company and the Investors have executed the Underwriting
Agreement (referred to in Section 1(a) below).
AGREEMENT
Now therefore, in consideration of the foregoing premises and mutual
covenants set forth herein, the parties agree as follows:
1. INDEMNIFICATION.
(a) INDEMNIFICATION BY THE COMPANY. To the extent permitted by law, the
Company will indemnify and hold harmless each Investor, each of the officers,
directors and partners of such Investor, and each person, if any, who
controls such Investor within the meaning of the Securities Act of 1933, as
amended, or the Securities Exchange Act of 1934, as amended, against any
losses, claims, damages, or liabilities (joint or several) (or actions in
respect thereof) to which they may become subject under Section 8(a) of the
Underwriting Agreement dated as of ________ ___,____ by and among the
Company, the Investors and Banc of America Securities LLC, XX Xxxxx
Securities Corporation and U.S. Bancorp Xxxxx Xxxxxxx; and the Company will
reimburse each such Investor, officer, director or partner or controlling
person for any legal or other expenses reasonably incurred by them in
connection with investigating or defending any such loss, claim, damage,
liability or action; provided, however, that the indemnity agreement
contained in this Section 1(a) shall not apply to amounts paid in settlement
of any such loss, claim, damage, liability or action if such settlement is
effected without the consent of the Company (which consent shall not be
unreasonably withheld).
(b) INDEMNIFICATION MECHANICS. Promptly after receipt by an indemnified
party under this Section 1 of notice of the commencement of any action
(including any governmental action), such indemnified party will, if a claim in
respect thereof is to be made against any indemnifying
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party under this Section 1, notify the indemnifying party in writing of the
commencement thereof, and the indemnifying party shall have the right to
participate in, and, to the extent the indemnifying party so desires, jointly
with any other indemnifying party similarly noticed, to assume the defense
thereof with counsel mutually satisfactory to the parties; provided, however,
if the defendants in any action include both the indemnified party and the
indemnifying party and the indemnified party shall have reasonably concluded
that there may be legal defenses available to it and/or other indemnified
parties which are different from or additional to those available to the
indemnifying party, or if there is a conflict of interest which would prevent
counsel for the indemnifying party from also representing the indemnified
party, the indemnified party or parties shall have the right to select
separate counsel to participate in the defense of such action on behalf of
such indemnified party or parties. After notice from the indemnifying party
to such indemnified party of its election so to assume the defense thereof,
the indemnifying party will not be liable to such indemnified party pursuant
to the provisions of paragraph (a) above for any legal or other expense
subsequently incurred by such indemnified party in connection with the
defense thereof other than reasonable costs of investigation, unless (i) the
indemnified party shall have employed counsel in accordance with the proviso
of the preceding sentence, (ii) the indemnifying party shall not have
employed counsel satisfactory to the indemnified party to represent the
indemnified party within a reasonable time after the notice of the
commencement of the action or (iii) the indemnifying party has authorized the
employment of counsel for the indemnified party at the expense of the
indemnifying party. The failure of any indemnified party to notify an
indemnifying party within a reasonable time of the commencement of any such
action, if prejudicial to its ability to defend such action, shall relieve
such indemnifying party of liability to the indemnified party under this
Section 1 only to the extent that such failure to give notice shall
materially prejudice the indemnifying party in the defense of any such claim
or any such litigation, but the omission so to notify the indemnifying party
will not relieve it of any liability that it may have to any indemnified
party otherwise than under this Section 1.
2. MISCELLANEOUS.
(a) GOVERNING LAW. Section 1 of this Indemnification Agreement shall
be governed in all respects by the laws of the State of California applicable
to contracts entered into and wholly to be performed within California by
California residents. Sections 2(b)-(h) of this Indemnification Agreement
shall be governed in all respects by the laws of the Netherlands.
(b) ENTIRE AGREEMENT. This Indemnification Agreement constitutes the
entire agreement among the Company and the Investors with respect to the
subject matter hereof and supersedes all previous agreements and
understandings, written or oral, concerning the subject matter hereof.
(c) SUCCESSORS AND ASSIGNS. Subject to the exceptions and requirements
specifically set forth in this Indemnification Agreement, the terms and
conditions of this Indemnification Agreement shall inure to the benefit of
and be binding upon the respective heirs, successors, administrators,
executors and assigns of the parties hereto.
(d) NOTICES, ETC. All notices and other communications required or
permitted hereunder shall be in writing and shall be deemed effectively given
upon personal delivery or on
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the day sent by facsimile transmission if a true and correct copy is sent the
same day by first class mail, postage prepaid, or by dispatch by an
internationally recognized express courier service, and in each case
addressed (i) if to an Investor at the address set forth on Schedule A to the
Investor Rights Agreement, or at the such other address as such Investor
shall have furnished to the Company and to the other Investors by ten (10)
days' notice in writing, or (ii) if to the Company, at its principal office,
or at such other address as the Company shall have furnished to each Investor
in writing.
(e) AMENDMENTS; WAIVERS. Any provision of this Indemnification
Agreement may be amended and the observance thereof may be waived (either
generally or in a particular instance and either retroactively or
prospectively) by the written consent of the Company and each of the
Investors. Any Investor may waive any of his, her or its rights hereunder
without obtaining the consent of any other Investor. Any amendment or waiver
effected in accordance with the first sentence of this Section 2(e) shall be
binding upon each Investor, his, her or its successors and assigns, and the
Company. Any waiver effected in accordance with the second sentence of this
Section 2(e) shall be binding upon the waiving Investor and the successors
and assignees of such Investor.
(f) DELAYS OR OMISSIONS. No delay or omission to exercise any right,
power or remedy accruing to any Investor, upon any breach or default of the
Company or any other Investor under this Indemnification Agreement, shall
impair any such right, power or remedy of such Investor, nor shall it be
construed to be a waiver of any such breach or default, or any acquiescence
therein, or of or in any similar breach of default thereafter occurring; nor
shall any waiver of any single breach or default be deemed a waiver of any
other breach or default theretofore or thereafter occurring. Any waiver,
permit, consent or approval of any kind or character on the part of any
Investor of any breach or default under this Indemnification Agreement, or
any waiver on the part of any Investor of any provisions or conditions of
this Indemnification Agreement, must be in writing and shall be effective
only to the extent specifically set forth in such writing. All remedies
either under this Indemnification Agreement, or by law or otherwise afforded
to any Holder, shall be cumulative and not alternative.
(g) SEVERABILITY. If one or more provisions of this Indemnification
Agreement are held to be unenforceable under applicable law, such provision
shall be excluded from this Indemnification Agreement and the balance of this
Indemnification Agreement shall be interpreted as if such provision were so
excluded and shall be enforceable in accordance with its terms.
(h) COUNTERPARTS. This Indemnification Agreement may be executed in
two or more counterparts, each of which shall be deemed an original, and all
of which together shall constitute one and the same instrument.
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IN WITNESS WHEREOF, each of undersigned or their respective duly
authorized officers or representatives have executed this Indemnification
Agreement as of the date first above written.
COMPANY:
METRON TECHNOLOGY B.V.
By:
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Name:
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Title:
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INVESTORS:
ENTEGRIS, INC.
By:
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Name:
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Title:
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FSI INTERNATIONAL, INC.
By:
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Name:
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Title:
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J. XXXXXXXXXXX XXXXXX-PRINSEP
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