Exhibit 10.8
SHARE PURCHASE AGREEMENT
(CME)
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 6,309
shares of the issued and outstanding capital stock (the "Shares") of FSI
Chemical Management Europe Limited ("CME");
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 dated December 31, 1996 between
Metron and FSI shall terminate and be of no further force and effect and the
Distribution Agreement between Metron and CME shall terminate and be of no
further force and effect (it being recognized that Metron and FSI are subject to
a Distribution Agreement entered into as of March 31, 1998) and that Metron's
representative, Xxxxx Xxxxxx-Prinsep, shall resign as a Director of CME;
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 Two Million Two Hundred Thousand Dollars $2,200,000 (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 CME is as set forth
in Schedule 1 of this Agreement. There are no outstanding subscriptions,
options, rights, warrants, convertible securities, or other commitments or
agreements obligating CME to issue or allot any additional shares of any
class from its authorized 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 CME, 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 CME 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 CME, 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
CME) 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
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which would not have existed or arisen if the Warranty in question had not
been untrue, 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 CME. Metron waives and may not
enforce a right which it may have against CME or a director, officer, or
employee of or to CME 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 CME) that neither Metron nor any member of its group (and "group"
shall have the meaning assigned to it in Section 207 of the Financial
Services Act 1986) 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 I 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 CME 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 CME to cease to supply, or to restrict
or vary the terms of supply, to CME; 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 CME; 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
CME 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 CME 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 and duly
executed Stock Transfer Form transferring the Shares to FSI together with a
power of attorney in respect of the voting rights attaching to the Shares as
per Schedule 5, a certificate of Metron's Supervisory Board approving the
transaction; the resignation of Xxxxx Xxxxxx-Prinsep per Schedule 3; and FSI
shall wire transfer to Metron the amount of Two Million Two Hundred Thousand
Dollars $2,200,000. Immediately following Closing, the Board of Directors
shall hold a meeting and transact hereto to approve the business set forth in
the Minutes attached hereto to as Schedule 4.
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 the
Distribution Agreement between Metron Technology and FSI Metron Europe Limited
(now known as CME) 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 CME 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.
4.
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 Great Britain or Minnesota ("Expenses") shall be borne by FSI; any 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 CME 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 CME's annual financial statements whether by the
Company or by CME'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 pro rata 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 Twenty-Five Thousand Dollars ($25,000)
there shall be no revisions to the purchase price and in no event shall the
purchase price be adjusted by more than Five Hundred Thousand Dollars
($500,000). 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 payment of an adjustment from Metron shall
be made in writing by FSI accompanied by sufficient detail to substantiate
the adjustment and contain a certification by CME'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
currently fifty (50%) percent owners each of CME and as the tax obligations
of CME may require adjustments in the future, FSI and Metron agree that in
the event CME 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 CME and
such tax obligation (i) was not provided for in CME'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
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extent that such repayment has been taken into account in the Accounts; then
Metron agrees it will be liable for one-half of the additional tax, to the
extent the additional tax in the aggregate exceeds Twenty-Five Thousand
Dollars ($25,000), in an amount not to exceed Two Hundred Fifty Thousand
Dollars ($250,000). 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 CME to pay such tax arises
as a result of a voluntary act or omission by FSI or CME 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 CME 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 CME, 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 CME 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 one-half of such reduction to the extent the aggregate
reduction exceeds Twenty-Five Thousand Dollars ($25,000), but in no event
more than Two Hundred Fifty Thousand Dollars ($250,000).
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
6.
(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
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 the United
Kingdom) 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 England and FSI and
Metron hereby irrevocably submit to non-exclusive jurisdiction of the English
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. Xxxxxxxxx By: /s/ Xx Xxxxx
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Xx Xxxxx
Its: CFO and Corporate Controller Its: Managing Director
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