EXHIBIT 10.44
WORLDWIDE STOCKING DISTRIBUTOR AGREEMENT
BETWEEN
FLUID HANDLING GROUP
ENTEGRIS, INC.
0000 XXXXX XXXXXXXXX
XXXXXX, XX 00000
AND
METRON TECHNOLOGY N.V.
0000 XXX XXXXXXXX XXXXXXX
XXXXX 000
XXXXXXXXXX, XX 00000
1. APPOINTMENT
Entegris, Inc. ("Entegris" or "we") hereby appoints Metron Technology
N.V., directly and/or through its subsidiaries, stocking distributor
(Metron Technology N.V. and its subsidiaries, "Distributor" or "you")
for the marketing and sale of those Entegris Fluid Handling Group gas
and liquid handling products set forth on Schedule A, attached.
2. TERM
The term of this Agreement shall be for a period of 54 months
commencing March 1, 2001, and ending August 31, 2005, renewing
automatically for successive five-year terms thereafter unless
terminated by either party for cause, at anytime, as provided in
Section 13 hereof.If either party gives the other party written notice
of its intent to terminate this agreement at the end of the
then-current term no later than one year prior to the expiration date
of the then-current term, then this agreement shall not renew.
3. AREA OF PRIMARY RESPONSIBILITY
Your area of primary responsibility shall include regions of the United
States, Europe and Asia as specified in Schedule B, attached (the
"Territories"). Entegris hereby appoints Distributor as the exclusive
distributor of the products set forth on Schedule A in the Territories.
Entegris reserves the right to enter into direct relationships with
customers in the "Territories" without compensation to Distributor.
4. ENTEGRIS OBLIGATIONS
(I) Entegris will make reasonable efforts to accomplish the following
on behalf of Distributor:
A. Deliver to you with reasonable diligence all products, price lists
and other literature reasonably required for performance of your
obligations under the Agreement.
B. Notify you of inquiries received by us from your primary area of
responsibility for our gas and liquid handling products.
C. Perform our duties within a reasonable time unless prevented by
circumstances beyond our control.
D. Conduct necessary training programs to aid Distributor's sales
personnel to better understand and market Entegris products.
E. Provide historical sales data by major product group and industry
as an aid in forecasting.
F. Prepare final plans and forecasts, and establish corrective action
plans if necessary (see section 6).
G. Provide semi-annual performance reports based on mutually agreed
upon criteria. Report timing is based on Entegris' fiscal year,
commencing September 1 of each year.
H. Work with the Distributor to implement the e-commerce support
strategy that is outlined in Schedule C, attached.
(II) During the term of this agreement, Entegris shall not, and shall
not permit any of its representatives to (i) hire any employee of Distributor 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 Distributor.
5. DISTRIBUTOR OBLIGATIONS
You, as Distributor, represent and warrant to Entegris that you will:
A. Perform as a stocking distributor or manufacturer's representative
as specified below and use your best efforts to stock, market and
sell products within your Area of Primary Responsibility.
B. Refer to us all inquiries received by you for the sale of the
products outside your Area of Primary Responsibility and otherwise
refrain from facilitation of sales through you outside of your
territory.
C. Not enter into any contracts or other commitments binding us
without our prior written consent.
D. Not make any representation or give any warranty relating to the
products other than those expressly stated in Entegris' written
sales documents. You will be exclusively liable for any other
representations and warranties and will indemnify and hold Entegris
harmless from any claims (including, without limitation, Entegris'
attorney fees) arising from any unauthorized representations and
warranties.
E. With reasonable notice make yourself available for instruction or
discussion as deemed necessary by Entegris.
F. During the term of this Agreement you will refrain from selling,
and refrain from having any involvement or connection with the sale
of, any products or services competitive with those of Entegris.
Entegris shall be entitled to enforce the provisions of this
Section by a temporary restraining order and temporary and
permanent injunctions (collectively, "specific performance").
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G. Not make any purchase on our behalf or pledge our credit.
H. Sell our products under the Entegris-Registered Trademark-, Inc.
label.
I. Keep your account current: Net 30 days from date of invoice. If
during a quarter the Distributor becomes delinquent in its payment
to Entegris, without approval, the Distributor will be subject to a
discount penalty. The penalty will be calculated as a 2% reduction
in the Distributor's discount for all of Distributor's purchases
during the subsequent quarter ("subsequent quarter"). If at the end
of the subsequent quarter the Distributor's payment performance is
current, the standard discount will be reactivated for the next
succeeding quarter. If Distributor's account is not brought current
by the end of the subsequent quarter, the Distributor may be
terminated immediately.
J. Report Distributor sales monthly. Reports must be submitted to
Entegris on or before the 20th day of the subsequent month. Subject
to Entegris' right to revise the reporting requirements at any
time, the reports will contain the following information for each
of Distributor's customers: ship-to address; part number; and
quantity for each customer.
K. Report inventory values monthly, submitted to Entegris by the 20th
day of the subsequent month, and reported on a Distributor cost
basis.
L. Work with Entegris to develop and update on a quarterly schedule an
eight (8) quarter rolling forecast. Forecasts are to be based on
Distributor cost.
6. DISTRIBUTOR CORRECTIVE ACTION PROGRAM
If following the semi-annual evaluation Distributor's performance does
not meet an acceptable performance level in relation to the semi-annual
performance reports based on mutually agreed upon criteria contemplated
by Section 4.G above, the Distributor will be notified. In the quarter
following this notification, an evaluation of the Distributor's
performance will be performed and if it still does not meet the
performance standard, the Distributor will participate in a corrective
action plan.
In the first phase of corrective action the Distributor meets with
Entegris sales territory manager to evaluate areas of unsatisfactory
performance and to create a plan to meet or exceed the performance
shortfalls. The plans must be developed and implemented within three
months of initial notification.
In the second phase the Distributor performance is monitored against
the corrective action plan for six (6) months. If performance improves
and meets the agreed upon performance levels in all material respects
by the end of six (6) months, the Distributor returns to normal status.
If at the end of six (6) months a Distributor does not meet in a
material respect the agreed upon performance levels, Entegris has the
right to extend the corrective action program or terminate the
relationship with the Distributor.
Following satisfactory completion of a corrective action program and
meeting the agreed upon performance standard, continued performance
above the performance standard for two (2) years without further
corrective action is expected and failure to meet the agreed upon
performance standard during any six month period within that two-year
period shall result in immediate termination of the Distributor.
The Distributor corrective action program will be enforced on a
regional level. Distributor branch or country locations may be put on
corrective action and terminated for non-performance without effecting
the remaining Distributor locations covered by this agreement.
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7. PRICES
A. Entegris agrees to sell Entegris-Registered Trademark-, Inc.
products to you as a distributor at the discounts from published
list price as indicated on Schedule D attached hereto. All
prices are based on delivery FOB Entegris factory.
Notwithstanding, Entegris shall have the right to retain title
to the products and bear the risk of loss until delivery FOB at
the Distributor's warehouse (or the place of acceptance by the
Distributor's customer). In any event, the Distributor (or the
Distributor's customer) shall, directly or indirectly, bear the
cost of any customs, duties, taxes, shipping, handling and
insurance with respect to the shipment of the products.
B. Entegris agrees that you shall have the right to establish the
final selling prices to your customers on all sales negotiated by
you as a stocking distributor. Entegris maintains the right to
establish final selling prices on all sales where the Distributor
is acting as a manufacturer's representative as provided in Section
12.
C. Entegris may change: (a) any published list prices by giving the
Distributor at least thirty (30) days written notice of said
changes; or (b) any terms of Schedules A-H (attached) with a twelve
(12) month written notice or written agreement by both parties at
any time.
8. ORDER REQUIREMENTS AND INFORMATION
A. Minimum order value is net $100.00, unless an alternate agreement
is made with Entegris sales management when an order is placed.
X. Xxxx orders are defined as those where the request is for same day
or next day shipment from Entegris. It is the Distributor's
responsibility to minimize these requests.
C. Drop shipments are defined as orders shipped directly from Entegris
to the Distributor's customers. Drop shipments will earn normal
discounts less 10%, unless an alternate agreement is made with
Entegris sales/regional management prior to the shipment.
D. UPS and all other shipping charges incurred by Entegris for any
rush orders or drop shipments will be prepaid by Entegris, added to
the Distributor's invoice and reimbursed to Entegris.
9. INVENTORY EXCHANGE
A. At the introduction of each new product, the potential for a future
inventory exchange will be addressed. Qualifying new product,
displaced product, if any, and the time period for the exchange
will be defined. A maximum of five percent (5%) of the total
combined sales of the new and displaced products during the
specified time period can be returned.
B. Entegris will accept a yearly inventory return from each
Distributor region (U.S., Europe and Asia) that amounts to 3% of
the respective regions total purchases from Entegris for a twelve
(12) month period per the following schedule:
U.S. - July 1st to June 30th
Europe - May 1st to April 30th
Asia - March 1st to February 28th
These returns must have a valid Return Authorization Number and be
completed within 30 days from the end of the twelve (12) month
period in question.
C. Inventory being returned must have a Return Authorization Number.
All items must be in resalable condition, unused, in the original
packaging and of current revision level. A packing
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list showing part numbers, quantities and the Return Authorization
Number must accompany returned inventory.
D. A credit memo will be issued for the exchange. The credit allowance
will be the maximum Distributor discount for each product from the
previous year's published price.
E. A purchase order must be entered before or at the same time of the
exchange.
F. The dollar amount of the purchase must be within $100.00 of the
credit allowance.
G. The Distributor will pay all freight charges.
10. RETURN FOR REPAIR POLICY PROCEDURES
A. Products returned for repair must be issued a Return Authorization
Number prior to shipping. Products returned without an approved
Return Authorization will not be accepted.
B. Defective products that are within Entegris' written warranty
period for that specific product will be replaced or repaired by
Entegris.
C. Products that have been altered or tampered with in any way will
void the warranty. Entegris reserves the right to refuse service on
any such part.
D. The return of products that have been exposed to hazardous media
must be approved by Entegris and a Entegris return tag must be
completed prior to product return. Entegris may require that the
product(s) be cleaned and neutralized to Entegris' satisfaction or
service may be refused.
11. RETURN FOR CREDIT
A. Full product credit will be issued on return if Entegris made a
product or shipping error. Freight charges for returning the
shipment will be paid by Entegris.
B. There will be a restocking charge of twenty-five percent (25%) of
the Distributor's purchase price on all resalable items returned
for credit when Distributor has made an order error. Shipping
charges to be paid by Distributor when Distributor has made an
order error. Charges on collect return will be deducted from the
allowable credit.
C. All items must be in resalable condition, unused, in the original
packaging and of the current revision level.
D. Claims for shortages or inaccurate filling of orders must be made
to Entegris within ten (10) days after receipt of shipment.
E. Returned goods will be accepted only with prior approval and Return
Authorization Number.
F. Goods ordered through a Distributor and returned to Entegris by the
end-user will not be accepted without prior approval.
12. MANUFACTURER'S SALES REPRESENTATIVE ROLE
A. Entegris may ask you to act as a manufacturer's sales
representative ("manufacturer's representative") instead of as a
stocking distributor in order to obtain or maintain a specific
customer's business for certain Fluid Handling Group products. In
such cases, Entegris shall
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provide a commission structure for sales credited to you in your
capacity as a manufacturer's representative. Commission will be
paid in the form of a credit memo on paid invoices.
B. Billing and shipping will occur between the customer and Entegris.
The manufacturer's representative role will include, but not be
limited to, local sales and support.
13. TERMINATION
A. This Agreement can be terminated by Entegris immediately upon
written notice if:
1) You attempt to assign or subcontract this Agreement or
rights or obligations hereunder without prior written
consent of Entegris.
2) There is a change in the control of Distributor which is
unacceptable to Entegris.
3) You cease to function as a going concern or cease to
conduct operations on behalf of Entegris in the normal
course of business.
4) You encounter serious financial difficulty, which
materially affects your performance under this Agreement.
5) Entegris receives information that you may be unable to
perform this Agreement in all material respects and you do
not provide Entegris adequate proof of your ability to
perform in all material respects within 30 days after
written notice from Entegris.
6) You misrepresent in a material respect a sales agreement
or sales report, or sell a material amount of samples.
7) You engage in activity which violates in a material
respect any of your obligations under Section 5.
8) You fail to keep your account current or cease to make
payment to Entegris or fail to pay the balance due on your
account immediately upon receipt of a second written
warning of failure to pay.
9) You fail to pay the balance due on your account promptly
upon receiving late payment notice as part of any
quarterly evaluation.
B. This Agreement may otherwise be terminated by Entegris according to
the corrective action plan referred to in Section 6.
C. In the event of termination by Entegris under Section 13.A or 13.B
or as a result of any other material breach of this agreement by
Distributor (collectively, "breach"), Distributor agrees: (1) to
pay Entegris all damages arising from the breach and all reasonable
attorney fees, costs and disbursements incurred by Entegris in
enforcing its rights under this Agreement; and (2) that it will
not, for a period of two years following the effective date of the
breach or termination (whichever is later), represent any
manufacturer of products competitive with Entegris, and that it
will not sell, or have any material involvement or connection with
the sale of, any products competitive with those of Entegris.
Entegris shall be entitled to enforce the provisions of this
Section by specific performance.
D. If Entegris terminates this agreement for any reason other than
pursuant to Section 13.A or 13.B or as a result of any other
material breach of this agreement by Distributor, the parties agree
that the actual damages resulting from the breach are not readily
ascertainable and that
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Entegris will pay the Distributor the following amount as
liquidated damages in lieu of any other damages or remedies: for
two (2) years commencing on the effective date of termination,
Entegris will pay the Distributor a commission of ten percent (10%)
of all sales of Entegris products in the Distributor's territory
during the two-year period of the Entegris products set forth on
Schedule A hereto as of the date of the event giving rise to the
termination. The commission shall only be paid on the same Entegris
products which the Distributor sold within the territory during the
twelve (12) months prior to the termination. The commission payable
under this clause 13.D shall be based exclusively on the price
Entegris charges its next distributor or on standard Entegris
distributor cost for such products (after subtracting any
discounts, credits or awards) and shall NOT include any other
customary charges, including without limitation taxes,
transportation, storage and returns. This commission shall be
payable on a quarterly basis within thirty (30) days after the date
of any quarter during such two-year period. The parties agree that
the remedy provided in this Section 13.D is not a penalty.
E. Upon receipt of written notice of termination covered by the
provisions in this section 13, Distributor will have 60 days to
cure the breach to the satisfaction of Entegris before the
termination becomes effective.
F. If Entegris makes material changes in this agreement pursuant to
Section 7.C paragraph(b) hereof without the written consent of
Distributor or Entegris materially breaches this agreement,
Distributor shall have the right to terminate this agreement
immediately upon written notice, and Distributor will not be bound
by the two (2) year non-competition agreement set forth elsewhere
in this agreement.
14. RIGHTS UPON TERMINATION
A. On termination of this Agreement, for any cause whatsoever, it is
hereby expressly agreed that Entegris shall deliver against all
Distributor orders previously accepted subject to payment on
delivery and will negotiate all outstanding credit memos with
Distributor.
B. If Entegris should terminate this Agreement or Distributor should
terminate this agreement as a result of material breach of this
agreement by Entegris or the making by Entegris of material changes
to this agreement pursuant to Section 7.C paragraph (b) hereof
without the written consent of Distributor, all stock may be
returned for full credit provided it is in resalable condition,
unused, in the original packaging and of current revision level. If
the distributor terminates the Agreement other than as a result of
material breach of this agreement by Entegris or the making by
Entegris of material changes to this agreement pursuant to Section
7.C paragraph (b) hereof without the written consent of
Distributor, Entegris is not responsible for taking back stock.
15. CONFIDENTIALITY
A. Any information provided between Entegris and Distributor which the
provider deems confidential or proprietary shall be labeled as such
at the time of disclosure if the disclosure is written, or if
verbal, shall be confirmed in writing as confidential within thirty
(30) days after disclosure. The receiving party shall treat such
information in confidence and shall take reasonable and customary
steps to assure that such information is not shared with any third
party. Information shall not be confidential if it is already known
to recipient at the time of disclosure or recipient otherwise
learns of it via a third party that is free to disclose it without
obligation. These obligations shall remain in effect during the
term of this Agreement and for a period of two (2) years
thereafter.
B. If the parties have signed any other non-disclosure or
confidentiality agreements, the terms of such agreements shall
supplement the terms of this agreement.
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C. All reports and documentation supplied to Entegris by the
Distributor pursuant to the requirements of Section 5.X-X shall be
considered confidential and shall be subject to the confidentiality
obligations identified in the paragraph above.
16. MODIFICATION
A. Except as provided in Section 7.C of this Agreement, this Agreement
may only be modified in writing, signed by the Distributor and
Entegris.
17. MERGER
A. This Agreement incorporates the full understanding of the parties
and replaces in its entirety any and all prior understandings
relating to distribution rights and any other contracts or
obligations between the parties. There are no other agreements
between the parties except as stated herein, all such prior or
other agreements being merged into this Agreement.
B. If Entegris waives any breach by this Distributor (or any other
distributor), such waiver shall not constitute a waiver of any
subsequent breach by this Distributor (or any other distributor).
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18. GOVERNING LAW
A. This Agreement shall be interpreted under the laws of the State of
Minnesota.
ENTEGRIS, INC.
Signed /s/ XXXX XXXXX Dated 3/1/01
---------------------------------------- ---------------------
Xxxx Xxxxx
Chairman
Entegris, Inc.
METRON TECHNOLOGY N.V.
Signed /s/ XXXX XXXXXX Dated 2/28/2001
---------------------------------------- ---------------------
Xxxx Xxxxxx
Vice President - Materials Group
Metron Technology N.V.
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