Exhibit 10.9
SHARE PURCHASE AGREEMENT
(CMK)
This Agreement, effective as of the 27th day of February, 1999 by and among
FSI INTERNATIONAL, INC. ("FSI"), a Minnesota corporation, and METRON TECHNOLOGY
B.V., a corporation incorporated under the laws of the Netherlands ("Metron").
RECITALS
WHEREAS, Metron is the sole registered and beneficial owner of 94,185
shares of the issued and outstanding capital stock (the "Shares") of FSI
Chemical Management Company-Korea, Ltd. ("CMK");
WHEREAS, FSI desires to acquire ownership from Metron of all the Shares and
Metron desires to sell such Shares;
WHEREAS, FSI and Metron upon the completion of the transfer of the Shares
intend that the Joint Venture Agreement relating to CMK between Metron and FSI
shall terminate and be of no further force and effect and that Metron's
representative, Xxxx Xxxxx Xxxxxxxx, shall resign as a Director of CMK;
NOW, THEREFORE in consideration of the above recitals and of the mutual
covenants and agreements contained in this Agreement, the parties hereby agree
as follows:
1. CONTRIBUTIONS OF SHARES. Subject to the terms and conditions set
forth in this Agreement, and in reliance on the representations and warranties
contained herein, Metron hereby agrees to sell and transfer to FSI with full
title guarantee, and FSI agrees to purchase from Metron the Shares in exchange
for Three Hundred Ten Thousand Dollars ($310,000) (U.S. Dollars) to be delivered
at Closing (as defined below).
2. REPRESENTATIONS AND WARRANTIES OF METRON. Metron represents and
warrants to FSI as follows:
2.1 ORGANIZATION AND AUTHORIZATION. Metron has the corporate power
and authority to execute, deliver, and perform this Agreement and the execution
and delivery of this Agreement and the consummation of the transactions
contemplated hereby have been duly authorized by the Supervisory Board of
Metron.
2.2 OWNERSHIP OF SHARES. Metron owns the Shares and such ownership
is free and clear of any agreements, liens, encumbrances, or other restrictions
which would in any way impair its right to transfer and deliver to FSI good
title to the Shares, including all rights which now are or at any time after the
date hereof become attached to them including any dividend or other distribution
declared, paid, or created after the date hereof. Each of the Shares is duly
issued, validly registered, fully paid, and non-assessable.
2.3 CAPITALIZATION. The issued share capital of CMK is as set forth
in Schedule 1 of this Agreement. There are no outstanding subscriptions,
options, rights, warrants,
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convertible securities, or other commitments or agreements obligating CMK to
issue or allot any additional shares of any class from its authorised share
capital. No person or entity, other than FSI, has any rights with respect to
the Shares that may be made effective by reason of Metron's entry into this
Agreement or the transfer of the Shares.
2.4 LITIGATION AND PROCEEDINGS. There is no legal action, suit,
or governmental proceeding or investigation pending or, to the best knowledge
of Metron, threatened against Metron or its Shares which in any way adversely
affects or prevents the sale and delivery of the Shares to FSI hereunder. To
the best knowledge of Metron, there is no suit, action, arbitration, or
legal, administrative, or other proceeding or governmental investigation
pending or threatened, against or affecting CMK, any of its businesses,
assets, or financial condition.
2.5 NO CONFLICTS AND CONSENTS. The execution, delivery, and
performance of this Agreement by Metron will not result in a breach or
violation by Metron of, or constitute a default by Metron under, any
agreement, instrument, or order to which Metron is a party or by which Metron
is bound. No consent of any third party is required in connection with the
execution and delivery of this Agreement and the performance of the
transactions contemplated hereby. Except as may be set forth in Schedule 2
of this Agreement, to the best knowledge of Metron, the execution, delivery,
and performance of this Agreement by Metron will not result in a breach or
violation by CMK under any agreement, instrument, or order to which it is
party or by which it is bound.
2.6 FULL DISCLOSURE. Metron has disclosed in writing to FSI all
information of which it is aware regarding CMK, the disclosure of which could
reasonably be expected to affect the willingness of FSI to purchase the Shares
or the price at or the terms upon which FSI would be willing to purchase them.
No representation or warranty of Metron contained herein contains any untrue
statement of a material fact or omits to state any material fact necessary to
make the statements herein not misleading.
3. SURVIVAL OF METRON'S REPRESENTATIONS AND WARRANTIES
3.1 RIGHTS CONTINUE. The rights and remedies of FSI in respect of
the foregoing warranties in Section 2 (the "Warranties") shall continue and
subsist and not be affected by Closing or by FSI rescinding or failing to
rescind this Agreement or by any other event or matter whatsoever except a
specific and duly authorized written waiver or release by FSI.
3.2 DEFICIENCIES. Without prejudice to any other remedy available to
FSI or its ability to claim damages on any basis which is available to it by
reason of any of the Warranties being untrue or misleading or being breached,
Metron undertakes with FSI (for itself and as trustee for CMK) that it shall, at
the direction of FSI, pay to FSI, the Company, or (in the case of liability to
another person which has not been discharged) the person to whom the liability
has been incurred an amount equal to any deficiency or liability of the Company
concerned which arises from any of the Warranties being untrue, misleading, or
breached and which would not have existed or arisen if the Warranty in question
had not been untrue,
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misleading, or breached plus an amount equal to the reasonable costs and
expenses incurred by FSI in connection therewith.
3.3 WAIVER OF CLAIMS AGAINST CMK. Metron waives and may not enforce a
right which it may have against CMK or a director, officer, or employee of or to
CMK in respect to a misrepresentation, inaccuracy, or omission in or from
information or advice supplied or given by any such persons for the purpose of
assisting Metron to give any of the Warranties.
4. REPRESENTATIONS AND WARRANTIES OF FSI. FSI represents and warrants to
Metron as follows:
4.1 ORGANIZATION AND AUTHORIZATION. FSI is a corporation duly
organized, validly existing, and in good standing under the laws of Minnesota
and has the corporate power and authority to execute, deliver, and perform this
Agreement and the execution and delivery of this Agreement and the consummation
of the transactions contemplated hereby have been duly authorized by its Board
of Directors.
4.2 LITIGATION AND PROCEEDINGS. There is no legal action or suit or
governmental proceeding or investigation pending or, to the knowledge of FSI
threatened, which in any way adversely affects or prevents the purchase by FSI
of the Shares from Metron.
4.3 NO CONFLICTS AND CONSENTS. The execution, delivery, and
performance of this Agreement by FSI will not result in a breach or violation by
FSI, or constitute a default by FSI under any agreement, instrument, or order to
which FSI is a party or by which FSI is bound. No consent of any third party is
required in connection with the execution and delivery of this Agreement by FSI
and the performance by FSI of the transactions contemplated hereby.
4.4 FULL DISCLOSURE. No representation or warranty of FSI contained
herein contains any untrue statement of a material fact or omits to state any
material fact necessary to make the statements herein not misleading.
4.5 FSI WARRANTIES. The representations and warranties of FSI
contained herein shall not expire at Closing.
5. PROTECTIVE COVENANTS
5.1 NON-COMPETE. Metron covenants with FSI (for itself and as
trustee of CMK) that neither Metron nor any member of its group including its
subsidiaries will:
(a) for a period of three (3) years from Closing (whether alone
or jointly or as manager, adviser, consultant, or agent for another person or
with another and whether directly or indirectly) carry on, be engaged, or
concerned in any business carrying on business in the territories listed in
Exhibit B, Part 1 to that certain Distribution Agreement entered into as of
March 31, 1998 between Metron and FSI which is competitive or likely to be
competitive with the business of CMK as carried on at Closing; or
3.
(b) for a period of two (2) years from Closing induce or attempt
to induce any person who was within the period of two (2) years prior to Closing
a supplier or customer of CMK to cease to supply, or to restrict or vary the
terms of supply, to CMK; or
(c) for a period of two (2) years from Closing induce or attempt
to induce any person who is at Closing an employee occupying a senior or
managerial position to leave the employment of CMK; or
(d) make use of or (except as required by law or any competent
regulatory body) disclose or divulge to any third party any information of a
secret or confidential nature relating to the business of CMK or its customers
or suppliers; or
(e) use or authorize any other person to use any trademark,
service xxxx, or trade name used in the business of CMK at Closing or any other
name or xxxx intended or likely to be confused with such a trademark, service
xxxx, or trade name.
5.2 ENFORCEABILITY OF COVENANTS. Each of the restrictions in each
paragraph or subclause above shall be enforceable independently of each of the
others and its validity shall not be affected if any of the others is invalid;
if any of those restrictions is void but would be valid if some part of the
restrictions were deleted the restriction in question shall apply with such
modification as may be necessary to make it valid.
5.3 REASONABLENESS. Metron acknowledges that the above provisions of
this clause are no more extensive than is reasonable to protect FSI as the
purchaser of the Shares.
6. CLOSING. Closing shall occur promptly following the signing of this
agreement at the offices of FSI in Chaska, Minnesota. At Closing, Metron shall
deliver to FSI the share certificates representing the Shares, a certificate of
Metron's Supervisory Board approving the transaction; the resignation of Xxxx
Xxxxx Xxxxxxxx per Schedule 3; and FSI shall wire transfer to Metron the amount
of Three Hundred Ten Thousand Dollars ($310,000).
In addition, at Closing, Metron and FSI shall execute whatever
documentation that FSI reasonably determines is necessary for the parties to
terminate the Joint Venture Agreement between FSI and Metron and in
consideration of the mutual covenants contained in this agreement FSI and Metron
hereby fully and finally release and forever discharge the other from any and
all outstanding claims and causes of action, directly or indirectly relating to
or arising out of or otherwise connected with the Joint Venture Agreement.
Following Closing, FSI and Metron agree that they will strive to identify
any obligations that exist between CMK and Metron and take appropriate action to
resolve or eliminate such obligations. In addition, Metron will provide all
assistance necessary for FSI to record the change in ownership or complete the
matters expressly contemplated by this Agreement. Metron will cooperate with
FSI and provide all assistance with regard to FSI's efforts to make all
necessary governmental filings for the transaction contemplated by this
Agreement.
7. EXPENSES. All transfer taxes, filing fees, and other registration
expenses incurred as a result of the sale and purchase of the Shares, including,
without limitation, applicable stamp duties imposed under the laws of Korea or
Minnesota ("Expenses") shall be borne by FSI; any
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such Expenses due under Dutch law or any income taxes of Metron due by reason
of the sale of the Shares shall be borne by Metron. Each party is
responsible for its own legal fees associated with this transaction.
8. SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon and
adhere to the benefit of the parties hereto and their respective heirs,
representatives, successors, and assigns and the benefit of each of the
obligations, undertakings, and warranties undertaken or given by Metron may be
assigned to the purchaser or transferee of the Shares or successor to the
business who may enforce them as if it had been named in this Agreement as FSI.
9. POST-CLOSING ADJUSTMENTS: Metron and FSI acknowledge and agree that
the price to be paid for the Shares has been established by reference to the
monthly financial statements of CMK for the period ending January 31, 1999.
Metron and FSI recognize that at the completion of the fiscal year-end there may
be adjustments to CMK's annual financial statements whether by the Company or by
CMK's auditors. In the event any of those adjustments are based upon or affect
the January 31, 1999 financial statements, the parties agree that the purchase
price should be adjusted prorata to reflect any such adjustments. FSI agrees to
notify Metron within ten (10) days following the issuance of the audited
financial results for the fiscal year-ending May 31, 1999 of the completion of
the audit. Metron and FSI also agree that unless adjustments exceed in the
aggregate Ten Thousand Dollars ($10,000) there shall be no revisions to the
purchase price and in no event shall the purchase price be adjusted by more than
Two Hundred Thousand Dollars ($200,000). The notice of the audit completion
from FSI shall also state whether there is an adjustment in the purchase price
and if the adjustment is to Metron's benefit, and subject to the limitations
above, shall pay such amount to Metron. Any request for such adjustment from
Metron shall be made in writing by FSI accompanied by sufficient detail to
substantiate the adjustment and contain a certification by CMK's auditors that
the adjustment is appropriate. Metron shall repay such amount within ten (10)
days of its receipt of the notice of adjustment from FSI or in lieu thereof FSI
may offset such amount against any obligations that FSI may then currently have
to Metron.
10. ONGOING RESPONSIBILITY FOR TAXES. As Metron and FSI are the primary
shareholders of CMK and as the tax obligations of CMK may require adjustments in
the future, FSI and Metron agree that in the event CMK becomes obligated to pay
a tax obligation which arises by reference to any event on or before Closing
(including the combined result of two or more events, the first of which
occurred on or before Closing) and during the period of time that Metron was the
owner of the Shares of CMK and such tax obligation (i) was not provided for in
CMK's accounts for the financial year ended 31 May 1998 (the "Accounts"); or
(ii) arises as a result of a loss, reduction or modification of a relief
included as an asset in the Accounts or taken into account in reducing or
eliminating any provision for tax which appears or but for such relief would
have appeared in the Accounts; or (iii) would have arisen under items (i) or
(ii) above but for the use of a relief accruing after Closing; or (iv) any tax
which would have been repaid to the Company but for the loss, reduction, set-off
or cancellation of any right to repayment of tax in consequence of an event
occurring on or before Closing (including the combined result of two or more
events, the first of which occurred on or before Closing) to the extent that
such repayment has been taken into account in the Accounts; then Metron agrees
it will be liable for thirty-five percent (35%) of the additional tax, to the
extent the additional tax in the aggregate exceeds Ten Thousand Dollars
($10,000), in an amount not to exceed One Hundred Thousand Dollars
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($100,000). Metron and FSI further agree that Metron shall promptly pay any
such amounts to FSI following written notice to Metron of the liability and
supporting documentation. Metron shall have no liability under this clause
10 to the extent that the liability of CMK to pay such tax arises as a result
of a voluntary act or omission by FSI or CMK after Closing otherwise than in
the normal course of business which could reasonably have been avoided, save
where such act or omission is a result of a legally binding obligation of CMK
entered into prior to Closing. If any payment pursuant to this clause is
subject to tax in the hands of the recipient then the sum payable shall be
increased by such amount as will ensure that, after payment of tax, FSI or
CMK, as the case may be, receives a net sum equal to the sum which it would
otherwise received had the payment not been subject to tax. Conversely, if
following Closing there is a reduction in the tax obligations of CMK from
that reflected in the Accounts for that portion of the 1999 fiscal year for
which Metron was owner of the Shares, then FSI shall promptly pay Metron
sixty-five percent (65%) of such reduction to the extent the aggregate
reduction exceeds Ten Thousand Dollars ($10,000), but in no event more than
One Hundred Thousand Dollars ($100,000).
11. ENTIRE AGREEMENT. This Agreement contains the entire agreement of the
parties hereto with respect to the transactions covered hereby and there are no
representations, warranties, agreements, undertakings, or conditions, express or
implied, between the parties hereto relating to the subject matter hereof,
except as set forth herein.
12. FURTHER ASSURANCES. At any time after Closing Metron shall at its own
expense execute all such documents and do such acts and things as FSI may
reasonably require for the purpose of vesting in FSI or its nominee the full
legal and beneficial title of the Shares and giving to FSI the full benefit of
this agreement.
13. HEADINGS. The headings in this agreement shall not affect its
interpretation.
14. NOTICES. Any notice or other document to be served under this
agreement may be delivered or sent by post or facsimile process to the party to
be served as follows:
(a) to Metron at
Metron Technology Corporation
0000 Xxx Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx 00000
Fax: 000-000-0000
marked for the attention
of the Chief Financial Officer
(b) to FSI at
FSI International, Inc.
000 Xxxx Xxxxxxxxx Xxxxx
Xxxxxx, Xxxxxxxxx 00000-0000
Fax: 000-000-0000
marked for the attention
of the General Counsel
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or at such other address or fax number as may be notified to the other in
accordance with this clause. Any notice or other document sent by post shall be
sent by prepaid first class recorded delivery post (if within Korea) or by
prepaid airmail (if elsewhere).
In proving service of a notice or document it shall be sufficient to prove
that delivery was made or that the envelope containing the notice or document
was properly addressed and posted (either by prepaid first class recorded
delivery post or by prepaid airmail, as the case may be) or that the fax was
properly addressed and dispatched, as the case may be.
15. GOVERNING LAW AND JURISDICTION. This Agreement shall be construed and
enforced in accordance with the laws of Korea and FSI and Metron hereby
irrevocably submit to non-exclusive jurisdiction of the Korean courts.
16. COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which shall
constitute but one instrument.
(REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.)
7.
IN WITNESS WHEREOF, the parties hereto have duly executed this Agreement as
a Deed as of the date first above written.
FSI INTERNATIONAL, INC. METRON TECHNOLOGY B.V.
By: \s\ Xxxxxxxx X. Xxxxxxxx By: \s\ Xx Xxxxx
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Xx Xxxxx
Its: CFO and Corprate Controller Its: Managing Director
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