EXHIBIT 10.42
TRANSITION AGREEMENT
This TRANSITION AGREEMENT ("Agreement") is entered into as of February 13,
2001 by and among ENTEGRIS, INC., a Minnesota corporation ("Entegris"),
FLUOROWARE, INC., a Minnesota corporation and wholly owned subsidiary of
Entegris ("Fluoroware"), and METRON TECHNOLOGY N.V., a Netherlands corporation
and its subsidiaries ("Metron").
RECITALS
A. Entegris, Inc., Fluoroware, Inc., a Minnesota corporation and wholly
owned subsidiary of Entegris, and Metron Technology N.V. are parties to that
certain Agreement, dated as of January 8, 2001, which provides the terms and
conditions upon which the parties would terminate their existing distribution
arrangements and further provides that the parties would use their commercially
reasonable best efforts to enter into a transition agreement and a new
distribution agreement.
B. Fluoroware, Inc. and Metron Semiconductors Europa, B.V. (predecessor
to Metron) are parties to that certain Distribution Agreement, dated as of July
6, 1995 (the "Metron Agreement"), and Xxxxx Company, a wholly owned subsidiary
of Metron, and Fluoroware are parties to that certain U.S. Stocking Distributor
Five-Year Agreement dated September 1, 1997 (the "Xxxxx Agreement").
C. The parties hereto wish to enter into an agreement to set forth the
terms and conditions upon which the parties will conduct their business
relationship from the date of this Agreement through April 30, 2001 (the
"Transition Period") and wind down their business relationship with respect to
Metron's distribution of Entegris' microelectronics materials management
products ("Microelectronics Group Products").
AGREEMENT
For good and valuable consideration, the receipt and sufficiency of which
are hereby acknowledged by the parties hereto, the parties, intending to be
legally bound, hereby covenant and agree as follows:
1. CONDUCT OF BUSINESS DURING TRANSITION PERIOD.
1.1 CURRENT ORDER FULFILLMENT.
(a) EUROPE. Orders from customers located in Europe will be handled
in accordance with this Section 1.1(a). On or prior to April 1,2001, Metron
shall prepare a list of outstanding orders as of March 31, 2001 and designate
which orders are for delivery on or prior to June 30, 2001 and which orders are
for delivery on or after July 1, 2001. Metron shall receive full margin
(pursuant to the Metron Agreement or the Xxxxx Agreement, as applicable) on all
orders submitted by March 31, 2001 for delivery on or prior to June 30, 2001. If
after placement of an order, a customer delays an order such that delivery is
not scheduled to occur on or prior to June 30, 2001, Metron shall receive a ten
percent (10%) sales commission (or previously negotiated commission rate) on the
order, rather than its full margin. Metron shall receive a ten
1.
percent (10%) sales commission (or previously negotiated commission rate) on
all orders submitted by March 31, 2001 for delivery scheduled from July 1,
2001 through September 30, 2001.
(b) ASIA. Orders from customers located in Asia will be handled in
accordance with this Section 1.1(b). On or prior to May 1,2001, Metron shall
prepare a list of outstanding orders as of April 30, 2001 and designate which
orders are for delivery on or prior to July 31, 2001 and which orders are for
delivery on or after August 1, 2001. Metron shall receive full margin (pursuant
to the Metron Agreement or the Xxxxx Agreement, as applicable) on all orders
submitted by April 30, 2001 for delivery on or prior to July 31, 2001. If after
placement of an order, a customer delays an order such that delivery is not
scheduled to occur on or prior to July 31, 2001, Metron shall receive a ten
percent (10%) sales commission (or previously negotiated commission rate) on the
order, rather than its full margin. Metron shall receive a ten percent (10%)
sales commission (or previously negotiated commission rate) on all orders
submitted by April 30, 2001 for delivery scheduled from August 1, 2001 through
October 31, 2001.
(c) Metron shall receive a commission of $828,487 for its work on the
Philips Principle Solution contract (the "Philips Commission"). Entegris will
pay the Philips Commission by wire transfer of immediately available funds to an
account designated in writing by Metron according to the following schedule:
November 15, 2001: $414,243
February 15, 2002: $414,244
(d) The parties agree to conduct their business in the ordinary
course from the date of this Agreement through March 31, 2001 with respect to
customers located in Europe and April 30, 2001 with respect to customers located
in Asia. During the Transition Period, Entegris agrees not to encourage
customers to either postpone the placement of orders until after March 31, 2001
with respect to customers located in Europe or April 30, 2001 with respect to
customers located in Asia or to cancel current orders with Metron, and Metron
agrees not to encourage customers to accelerate the placement of orders for
scheduled delivery. In the event that a customer cancels an order with Metron on
or prior to March 31, 2001 with respect to customers located in Europe or April
30, 2001 with respect to customers located in Asia and places with Entegris on
or prior to June 30, 2001 with respect to customers located in Europe or July
31, 2001 with respect to customers located in Asia an order substantially
similar to, or smaller than, the order originally placed with (and to be shipped
by) Metron, Metron shall receive full margin (pursuant to the Metron Agreement
or the Xxxxx Agreement, as applicable) on the order placed with Entegris.
1.2 NEW ORDERS. If Entegris receives an order from Metron on or prior to
March 31, 2001 with respect to customers located in Europe or April 30, 2001
with respect to customers located in Asia, Entegris shall process such order in
the ordinary course of business in accordance with the terms of the Metron
Agreement and the Xxxxx Agreement. Metron shall not accept any orders after
March 31, 2001 with respect to customers located in Europe and April 30, 2001
with respect to customers located in Asia without the prior consent of Entegris.
In the event that Metron accepts any orders pursuant to the preceding sentence,
Metron shall receive
2.
full margin (pursuant to the Metron Agreement or the Xxxxx Agreement, as
applicable) on such orders.
1.3 PAYMENT OF SALES COMMISSIONS. On or prior to May 31, 2001, Metron
shall prepare a list of sales commissions owed to it by Entegris as of April 30,
2001. Entegris shall continue to provide Metron with copies of all ISS orders it
receives through the close of business on February 28, 2001, and Metron shall
receive a five percent (5%) sales commission (or previously negotiated
commission rate) on all ISS orders received by Entegris through the close of
business on February 28, 2001. Entegris shall pay Metron sales commissions owed
to it pursuant to the Metron Agreement or the Xxxxx Agreement, as applicable.
1.4 PAYABLES. Except for any payables that Metron has identified as
disputed invoices, Metron will comply with the payment terms of the Metron
Agreement or the Xxxxx Agreement, as applicable, on all payables to Entegris
prior to Entegris making any payment to Metron in association with early
termination of the Metron Agreement and the Xxxxx Agreement.
1.5 ONGOING SUPPORT OBLIGATIONS. From and after April 1, 2001 with respect
to customers located in Europe and May 1, 2001 with respect to customers located
in Asia, Entegris shall assume all ongoing support obligations for
Microelectronics Group Products, including all warranty obligations and first
call support. Notwithstanding the foregoing, Metron shall continue to provide
ongoing support for IMEC and Philips Hamburg.
1.6 CUSTOMER RECEIVABLES. Metron shall retain customer receivables with
respect to orders placed on or prior to March 31, 2001 with respect to customers
located in Europe and April 30, 2001 with respect to customers located in Asia;
PROVIDED, HOWEVER, that Metron shall be entitled to sell to Entegris, at face
value, any receivables with respect to orders placed between January 1, 2001 and
March 31, 2001 with respect to customers located in Europe and between February
1, 2001 and April 30, 2001 with respect to customers located in Asia that remain
outstanding as of June 30, 2001 and July 31, 2001, respectively, to the extent
that a customer has indicated that it has not paid amounts due as a result of
product performance issues.
1.7 EMPLOYEE MATTERS.
(a) A list of Metron employees involved with the microelectronics
group business is attached as Exhibit A hereto (the "Employees"). On or before
February 28, 2001, Entegris shall extend offers of employment to the Employees,
with such employment becoming effective April 1, 2001 with respect to Employees
located in Europe, and May 1, 2001 with respect to Employees located in Asia. On
or after March 1, 2001, except for any of the Employees who accept employment
with Entegris after an offer is extended pursuant to the preceding sentence (the
"Entegris Employees"), Entegris shall not, and shall not permit any of it
representatives to (i) hire any employee of Metron 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
Metron or any of Metron's subsidiaries during the period from the date of this
Agreement through the first anniversary of the date hereof. Additional terms
related to the possible employment by Entegris of the Employees, including
certain indemnification obligations of Metron, are set forth on Annex (NL)
attached hereto.
3.
(b) Effective March 1, 2001, Entegris shall reimburse Metron on a
monthly and proportionate basis for all wages, salaries, holiday pay, PAYE,
income tax and national insurance contributions and other periodic outgoings
(including pension contributions) payable for the remainder of the Transition
Period to or in relation to any Entegris Employees.
1.8 AUTOMOBILE AND OTHER LEASES; PERSONAL COMPUTERS; MOBILE TELEPHONES.
Entegris shall reimburse Metron on a quarterly calendar basis for all payments
due on lease agreements for automobiles used by the Entegris Employees. In the
event that any of the Entegris Employees use the apartment leased by Metron in
Taiwan, Entegris shall reimburse Metron on a quarterly calendar basis for those
employees' pro rata share of the payments due on the lease agreement for the
apartment. As of the close of business on March 31, 2001, Entegris shall pay to
Metron a purchase price of $1,000 per person for the personal computers and
mobile telephones used by the Entegris Employees located in Europe, and title to
such personal computers and mobile telephones shall transfer to Entegris. As of
the close of business on April 30, 2001, Entegris shall pay to Metron a purchase
price of $1,000 per person for the personal computers and mobile telephones used
by the Entegris Employees located in Asia, and title to such personal computers
and mobile telephones shall transfer to Entegris.
2. OTHER COVENANTS OF THE PARTIES.
2.1 INVENTORY REPURCHASE. Metron shall prepare on or prior to June 30,
2001 a list of Microelectronics Group Products inventory that it desires to have
repurchased by Entegris. Within 30 days of receipt of the list referred to in
the preceding sentence, Entegris will perform an on-site inspection of such
inventory and provide Metron with return instruction for that inventory that is
approved for return under the terms of the existing distribution agreement
between Metron and Entegris, such approval not to be unreasonably withheld. In
accordance with Section 4.5 of the existing distribution agreement between
Metron and Entegris, within 30 days of any transfer of inventory to Entegris,
Entegris shall reimburse Metron for the purchase price paid for inventory
returned in good condition to Entegris.
2.2 CUSTOMER CONTACT. The parties shall issue a joint letter to customers
regarding the transition. During the Transition Period, each party shall obtain
the consent of the other party prior to any contact with customers regarding the
transition.
2.3 DISCLOSURE. The parties shall consult with each other before issuing
any public statement with respect to this Agreement or any of the other
transactions contemplated by this Agreement.
3. MISCELLANEOUS.
3.1 SEVERABILITY. In the event that any provision of this Agreement, or
the application of any such provision to any party hereto or set of
circumstances, shall be determined to be invalid, unlawful, void or
unenforceable to any extent, the remainder of this Agreement, and the
application of such provision to the parties hereto or circumstances other than
those as to which it is determined to be invalid, unlawful, void or
unenforceable, shall not be impaired or otherwise affected and shall continue to
be valid and enforceable to the fullest extent permitted by law.
4.
3.2 GOVERNING LAW. This Agreement shall be construed in accordance with,
and governed in all respects by, the internal laws of the State of California
(without giving effect to principles of conflicts of laws).
3.3 DISPUTE RESOLUTION.
(a) The parties agree to use prompt and commercially reasonable
efforts to resolve any disputes which may arise under this Agreement in an
amicable and good faith manner but otherwise agree that, in the absent of such
agreement, any claim, dispute, or controversy of whatever nature arising out of
or relating to this Agreement, including, without limitation, any action or
claim based on tort, contract, or statute (including any claims of breach or
violation of statutory or common law protections from discrimination, harassment
and hostile working environment), or concerning the interpretation, effect,
termination, validity, performance and/or breach of this Agreement ("Claim"),
shall be resolved by final and binding arbitration before a single arbitrator
("Arbitrator") selected from and administered by the American Arbitration
Association (the "Administrator") in accordance with its then existing
arbitration rules or procedures regarding commercial or business disputes. The
arbitration shall be held in the County of Santa Xxxxx or the County of San
Mateo, California.
(b) The Arbitrator shall, within fifteen (15) calendar days after the
conclusion of the Arbitration hearing, issue a written award and statement of
decision describing the essential findings and conclusions on which the award is
based, including the calculation of any damages awarded. The Arbitrator shall be
authorized to award compensatory damages, but shall NOT be authorized (i) to
award non-economic damages, such as for emotional distress, pain and suffering
or loss of consortium, (ii) to award punitive damages, or (iii) to reform,
modify or materially change this Agreement or any other agreements contemplated
hereunder; provided, however, that the damage limitations described in parts (i)
and (ii) of this sentence will not apply if such damages are statutorily
imposed. The Arbitrator also shall be authorized to grant any temporary,
preliminary or permanent equitable remedy or relief he or she deems just and
equitable and within the scope of this Agreement, including, without limitation,
an injunction or order for specific performance.
(c) Each party shall bear its own attorney's fees, costs, and
disbursements arising out of the arbitration, and shall pay an equal share of
the fees and costs of the Administrator and the Arbitrator; PROVIDED, HOWEVER,
the Arbitrator shall be authorized to determine whether a party is the
prevailing party, and if so, to award to that prevailing party reimbursement for
its reasonable attorneys' fees, costs and disbursements (including, for example,
expert witness fees and expenses, photocopy charges, travel expenses, etc.),
and/or the fees and costs of the Administrator and the Arbitrator. Absent the
filing of an application to correct or vacate the arbitration award under
California Code of Civil Procedure sections 1285 through 1288.8, each party
shall fully perform and satisfy the arbitration award within 15 days of the
service of the award.
(d) By agreeing to this binding arbitration provision, the parties
understand that they are waiving certain rights and protections which may
otherwise be available if a Claim between the parties were determined by
litigation in court, including, without limitation, the right
5.
to seek or obtain certain types of damages precluded by this Section 5.3, the
right to a jury trial, certain rights of appeal, and a right to invoke formal
rules of procedure and evidence.
3.4 COUNTERPARTS. This Agreement may be executed in several
counterparts, each of which shall constitute an original and all of which, when
taken together, shall constitute one agreement.
3.5 ENTIRE AGREEMENT. This Agreement sets forth the entire understanding
of the parties relating to the subject matter hereof and supersedes all prior
agreements and understandings among or between any of the parties relating to
the subject matter hereof.
3.6 WAIVER.
(a) No failure on the part of any party to this Agreement to exercise
any power, right, privilege or remedy under this Agreement, and no delay on the
part of any party to this Agreement in exercising any power, right, privilege or
remedy under this Agreement, shall operate as a waiver of such power, right,
privilege or remedy; and no single or partial exercise of any such power, right,
privilege or remedy shall preclude any other or further exercise thereof or of
any other power, right, privilege or remedy.
(b) No party to this Agreement shall be deemed to have waived any
claim arising out of this Agreement, or any power, right, privilege or remedy
under this Agreement, unless the waiver of such claim, power, right, privilege
or remedy is expressly set forth in a written instrument duly executed and
delivered on behalf of such party; and any such waiver shall not be applicable
or have any effect except in the specific instance in which it is given.
3.7 SUCCESSORS AND ASSIGNS; ASSIGNMENT. This Agreement shall be binding
upon and shall inure to the benefit of the parties' respective successors and
permitted assigns (if any). Neither party may assign any or all of its rights
under this Agreement in whole or in part, to any other party except in the case
of any tender offer, exchange offer, merger, business combination, asset sale,
recapitalization, restructuring, liquidation, dissolution or extraordinary
transaction involving either of the parties hereto.
3.8 FURTHER ASSURANCES. The parties agree to execute and/or cause to be
delivered to the other party such instruments and other documents, and shall
take such other actions, as such party may reasonably request at any time for
the purpose of carrying out or evidencing any of the provisions of this
Agreement.
3.9 HEADINGS. The headings contained in this Agreement are for convenience
of reference only, shall not be deemed to be a part of this Agreement and shall
not be referred to in connection with the construction or interpretation of this
Agreement.
3.10 CONSTRUCTION.
(a) For purposes of this Agreement, whenever the context requires:
the singular number shall include the plural, and vice versa; the masculine
gender shall include the feminine and neuter genders; the feminine gender shall
include the masculine and neuter genders; and the neuter gender shall include
the masculine and feminine genders.
6.
(b) The parties hereto agree that any rule of construction to the
effect that ambiguities are to be resolved against the drafting party shall not
be applied in the construction or interpretation of this Agreement.
(c) As used in this Agreement, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, but
rather shall be deemed to be followed by the words "without limitation."
(d) Except as otherwise indicated, all references in this Agreement
to "Sections" are intended to refer to Sections of this Agreement.
3.11 AMENDMENT. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered on behalf of Entegris and Metron (or by their duly designated
successors).
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
7.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed
as of the date first above written.
"ENTEGRIS": ENTEGRIS, INC.,
a Minnesota corporation
By: /s/ XXXX XXXXX
----------------------------------
Name: Xxxx Xxxxx
--------------------------------
Title: Chairman
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"METRON": METRON TECHNOLOGY, N.V.,
a Netherlands corporation
By: /s/ X. XXXXX
----------------------------------
Name: X. Xxxxx
--------------------------------
Title: President & CEO
-------------------------------
"FLUOROWARE": FLUOROWARE, INC.,
a Minnesota corporation
By: /s/ XXXX XXXXX
----------------------------------
Name: Xxxx Xxxxx
--------------------------------
Title: Chairman
-------------------------------
8.
EXHIBIT A
LIST OF EMPLOYEES
Taiwan:
SALES
Xxx Xxxxx Working Manager - PRC/Taiwan
Xxxx Xxxx 300mm Sales Specialist
Xxxxxxx Xxxx TAP Sales Specialist
Xxxxxxx Xxx WHS/DSS Sales Specialist
Xxxxx Xxxx Applications Engineer 300mm
Xxxx Xx Senior Sales Support / Office Manager
CUSTOMER SERVICE
Xxxxx Xxx CSR
PRC:
SALES
Xxx Xxxx WHS/DSS Sales Specialist (Beijing)
Sun Jun WHS Sales Specialist (Shanghai)
Xxxxxxx Xxx WHS Sales Specialist (Tianjin)
Xxxxxxxxx Xxx TAP Sales Specialist (Shanghai)
Xxxxx Xxxx Sales Support - Beijing
Summer Hu Sales Support - Shanghai
Singapore:
SALES
Xxxxx Xxx WHS Sales Specialist
Abdullah Rizal TAP Sales Specialist
Xxxx Low TAP Sales Specialist
Xxxxxx Xxx Sales Support - Singapore
Malaysia:
SALES
Xxxxxx Xxxx Working Manager - SAsia
Italy:
SALES
Xxxxxxx Xxxxxxxx Account Manager (Italy)
Xxxxxxxxx Xxxxxxxx Admin Assistant / Sales Support (Italy)
Xxxxxx Xxxxxxx Working Manager - S.Europe (Italy)
Xxxxxx Xxxxxxx Sales Support (Italy)
Germany:
SALES
Xxxx Xxxxxxx Account Manager (Germany)
Xxxxxxxx Xxxxx Strategic Account Manager (Germany)
9.
Xxxxxxxx Xxxxxx Account Manager (Germany)
Xxxxx Xxxxxxx Account Manager (Germany)
Xxxxxxxxxx Molcik Sales Support (Germany)
Xxxxxx Xxxxxxxx Sales Support (Germany)
France:
SALES
Xxxxxxx Xxxxxxx Account Manager (France)
Israel:
SALES
Xxxx Xxxxxxx Account Manager (Israel)
UK / Ireland:
SALES
Xxxx Xxxxxxx Working Manager (UK)
Xxxx Xxxxxx Account Manager (Ireland)
Korea:
SALES
Xxxx Xxxx Account Manager (Korea)
Xxxxxxx Xxx Sales Support (Korea)
10.
ANNEX (NL)
1 The parties to the Transition Agreement dated February 13, 2001 (the
"Agreement") acknowledge that neither this Agreement nor the partial
termination of the Metron Agreement and the Xxxxx Agreement constitute a
transfer of undertaking as defined in the European Council Directive 77/187
and/or 98/50.
2 Therefore, there will be no automatic transfer to Entegris of any of the
Employees. Consequently, Metron will remain fully liable for the
fulfillment of any and all obligations in connection with or otherwise
arising from the employment contract of the Employees. Metron cannot in any
way make any claim whatsoever towards Entegris in relation to its
obligations in this respect.
3 Metron cannot exclude the possibility that it will not be able to maintain
the employment of some of the Employees.
4 In relation thereto, Entegris is prepared to consider offering, at its sole
discretion and only insofar as it has suitable positions available within
its organisation, a position to one or more of the Employees.
5 In light of Clauses 1 and 2 above, in making such offers as referred to in
Clause 4 above, Entegris is not bound in any way to the terms and
conditions of the employment between Metron and the Employees. Entegris
will be entirely free in its decision:
- to whom it will offer a position,
- which position this will be, and
- the terms and conditions of such offer.
6 The Employees who have been offered a position with Entegris will be under
no obligation to accept such offer. Metron will ensure that the employment
agreement it has with Employees who want to accept an offer made by
Entegris is terminated in accordance with the applicable law before the
Employee enters into employment with Entegris. Such employment between the
Employee and Entegris will not in any way be considered to be a
continuation of the employment of this employee with Metron.
7 Metron will at its own expense indemnify Entegris for and hold Entegris
harmless against the payment of any and all costs in connection with or
otherwise arising from actions, proceedings, claims, demands and/or other
legal recourse, of any former Employee of Metron and/or any third party
(such as, but not limited to, tax and social securities collecting
authorities, pension funds, etc.) in any way connected with and/or
resulting from:
- the termination of the employment of Employees who are not offered
and/or who have not accepted a position with Entegris and who claim to
have been automatically transferred to Entegris provided that such
termination takes place on or before July 1, 2001;
- any claims arising from any act or omission, breach or default by
Metron prior to the effective date of the Employee's employment by
Entegris made by any former Metron Employee who has accepted a
position with Entegris.
1.
