<PAGE>
EXHIBIT 10.39
TAX INDEMNIFICATION AGREEMENT
THIS AGREEMENT is made as of July 6, 1995 by and between EDWARD J.
SEGAL (the "Shareholder") and METRON TECHNOLOGY, INC., a California corporation
(the "Surviving Company").
RECITALS
A. Metron Semiconductors Europa B.V. (the "Company") has been
organized under the laws of The Netherlands and as of the date hereof is a
"controlled foreign corporation," as defined in Section 957(a) of the Internal
Revenue Code of 1986, as amended (the "Code");
B. The Shareholder owns a substantial percentage of the
outstanding voting stock of Transpacific Technology Corporation, a California
corporation ("Transpacific"), which as of the date hereof will be merged with
and into the Surviving Company, a wholly-owned subsidiary of the Company,
pursuant to. the terms of that certain Agreement and Plan of Reorganization
dated as of April 3, 1995, (the "Reorganization Agreement");
C. Pursuant to the terms of the Reorganization Agreement, the
Shareholder will receive 192,891 shares of the Company's capital stock with a
par value of NLG 0.10 and options to purchase 175,316 shares of the Company's
capital stock with a par value of NLG 0.10 (the "Shares") which in the
aggregate, taking into account the ownership attribution rules of Section 958(b)
of the Code, may cause the shareholder to be treated as a "United States
shareholder" (within the meaning of Section 951(b) of the Code) in the Company
immediately following the consummation of the merger and the related
transactions contemplated by the Reorganization Agreement;
D. As a "United States shareholder" by reason of Section 951(a)
of the Code the Shareholder would be required to recognize a share of certain
kinds of income of the Company (referred to herein as "Subpart F income") with
respect to all tax years of the Shareholder in which he is a "United States
shareholder" on the last day of the Company's fiscal year and has been a "United
States shareholder" in the Company for an uninterrupted period of 30 days or
more during such fiscal year of the Company (which is treated as the Company's
tax year for federal income tax purposes) ending within his own tax year; and
E. The Company and the Shareholder intend to have the Surviving
Company advance to or reimburse the Shareholder for the full amount of the
Shareholder's additional federal and state income tax liability arising from the
inclusion of Subpart F income of the Company in his gross income for tax
purposes, as well as any additional federal and state income tax liability and
any Dutch withholding tax liability arising from such advance or reimbursement
(collectively "Indemnification Payments").
<PAGE>
NOW, THEREFORE, the Company, the Surviving Company and the Shareholder
agree as follows:
1. ADVANCES. The Surviving Company will advance to the
Shareholder that amount by which the Shareholder's annual combined federal and
state income tax liability (on a joint or separate tax return) with respect to
any tax year of the Shareholder in which he was a "United States shareholder" of
the Company exceeds his annual combined federal and state income tax liability
(on a joint or separate tax return) determined as though he had not been a
"United States shareholder" of the Company with respect to such tax year. Such
advances will bear no interest and will be subject to repayment only as provided
in Section 3 hereof.
2. REIMBURSEMENT. In addition, the Surviving Company shall
reimburse the Shareholder for that amount by which the Shareholder's annual
combined federal and state income tax liability (on a joint or separate return)
and Dutch withholding tax liability with respect to any tax year of the
Shareholder exceeds his annual combined federal and state income tax liability
(on a joint or separate tax return) and Dutch withholding tax liability for any
such tax year determined as though he had never received any Indemnification
Payments under this Agreement. Such reimbursements shall include to the fullest
extent possible the tax consequences to the Shareholder of the Indemnification
Payments themselves under applicable income tax laws including any imputed
interest income on the advances made to the Shareholder. The Surviving Company
also shall reimburse the Shareholder for all additional tax return preparation
expense resulting from his status as a "United States shareholder" for any tax
year.
3. REPAYMENT OF ADVANCES.
(a) Upon the first sale (a "Sale") of any of the Shares by the
Shareholder after the tax year for which he has received
one or more advances pursuant to this Agreement, the
Shareholder shall be obligated to compute the total amount
of tax liability avoided as a result of the increase in
the aggregate basis of the Shares deemed sold attributable
to the Subpart F income of the Company that the
Shareholder was actually required to include in his gross
income through the year of the first Sale by assuming that
all of the Shares were sold at the same time and at the
same price. The amount of such avoided tax liability shall
be determined by comparing (A) the putative tax payable on
the total amount of gain computed with respect to such
deemed sale of all of the Shares at the highest marginal
income tax rate (federal, state and foreign rates combined
with appropriate effect given to deductible or creditable
taxes) then applicable to gains of the Shareholder from
the sale of an asset such as the Shares by taking into
account the aggregate basis increase described in the
preceding sentence to (B) the putative tax payable on such
total amount of gain computed in the same manner as in
clause (A) but without regard to such basis increase. Such
computations shall be based on the tax laws and tax rates
applicable at the time of such first Sale of Shares. As
repayment of such advance, the Shareholder shall remit the
amount of such decreased tax liability (net of any
reimbursement required pursuant to Subsection 2) to the
Company in readily available funds within thirty (30) days
following the Sale of such
2.
<PAGE>
Shares together with a supporting schedule for the amount
of the remittance prepared by the tax accountant or other
person who regularly prepares the Shareholder's income tax
returns which shall be subject to the Surviving Company's
review and reasonable approval of such schedule. Except as
provided in this Section 3, the Shareholder will not be
obligated to repay any advances or other Indemnification
Payments.
(b) For purposes of this Section 3, a gift of up to and
including 20% of the Shares shall not be considered a
sale. Gifts to the Shareholder's spouse (but not transfers
at death) shall be deemed a Sale. Sales by a donee shall
not be considered a Sale. All other dispositions for value
of the Shares shall be considered a Sale. The selling
price in the event of a gift or other disposition
constituting a Sale shall be equal to the fair market
value of the Shares at the time of gift or other
disposition.
4. MANNER AND TIME OF PAYMENT. The Surviving company shall pay
the full amount of any such advances and reimbursements to the Shareholder in
the form of immediately available funds upon receipt of the Shareholder's
written request and, in any event, no later than April 10 of the year following
the tax year of the Shareholder to which such advances or reimbursements apply.
All requests by the Shareholder for advances or reimbursements by the Surviving
Company hereunder shall be accompanied by a signed copy of the Shareholder's
final tax returns for the applicable year and all amendments thereto and a
supporting schedule for the amount requested prepared by the tax accountant or
other person who prepared such returns for the Shareholder which shall be
subject to the Surviving Company's review and reasonable approval of such
schedule. If the Surviving Company fails to pay any amount owed to the
Shareholder hereunder, the Company agrees to pay it immediately upon request by
the Shareholder.
5. NOTICES. All notices and other communications hereunder shall
be in writing and shall be deemed given if delivered personally or by commercial
delivery service, or mailed by registered or certified mail (return receipt
requested) or sent via telecopy to the parties at the following addresses (or at
such other address for a party as shall be specified by like notice):
(a) if to the Company
-------------------------------------------
322 Lake Hazeltine Drive
Chaska, MN 55318
Attention: Joel Elftmann
Telecopy No.: (612) 448-1300
(b) if to the surviving Company:
-------------------------------------------
770 Lucerne
Sunnyvale, California 94086-3844
Attention: Edward Segal
3.
<PAGE>
Telecopy No.: (408) 481-1020
(c) if to the Shareholder:
Edward Segal
770 Lucerne Drive
Sunnyvale, California 94086-3844
Telecopy No.: (408) 481-1020
6. COUNTERPARTS. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party, it being understood that all
parties need not sign the same counterpart.
7. ENTIRE AGREEMENT. This Agreement constitute the entire
agreement among the parties with respect to the subject matter hereof and
supersedes all prior agreements and understandings, both written and oral among
the parties with respect to the subject matter hereof; is not intended to confer
upon any other person any rights or remedies hereunder; and shall not be
assigned by operation of law or otherwise except as otherwise specifically
provided.
8. SEVERABILITY. In the event that any provision of this
Agreement or the application thereof, becomes or is declared by a court of
competent jurisdiction to be illegal, void or unenforceable, the remainder of
this Agreement will continue in full force and effect and the application of
such provision to other persons or circumstances will be interpreted so as
reasonably to effect the intent of the parties hereto. The parties further agree
to replace such void or unenforceable provision of this Agreement with a valid
and enforceable provision that will achieve, to the extent possible, the
economic, business and other purposes of such void or unenforceable provision.
9. GOVERNING LAW. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof. For purposes of this Agreement, all tax liabilities and other
obligations of the Shareholder shall be determined based upon the tax laws in
effect and applicable to the Shareholder with respect to the tax year for which
the Indemnification Payment is made, except as otherwise provided in Section 3.
10. DISPUTE RESOLUTION. Any dispute, controversy, or claim arising
between the parties, including without limitation under this Agreement, shall be
resolved in accordance with the procedures contained in Section 12.9 of the
Reorganization Agreement.
11. RULES OF CONSTRUCTION. The parties hereto agree that they have
been represented by counsel during the negotiation and execution of this
Agreement and, therefore, waive the application of any law, regulation, holding
or rule of construction providing that ambiguities in any agreement or other
document will be construed against the party drafting such agreement or
document.
12. REFERENCES TO UNITED STATES CURRENCY. All amounts payable
pursuant to the provisions of this Agreement shall be paid in United States
dollars.
4.
<PAGE>
13. TERMINATION. The obligation to make advances pursuant to
Section 1 and reimbursements pursuant to Section 2 shall cease as to all tax
years ending after the year in which the first Sale under Section 3 shall have
occurred, and this Agreement shall terminate immediately after the end of such
year except as to unsatisfied payment obligations.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
5.
<PAGE>
IN WITNESS WHEREOF, the Company, the Surviving company and the
Shareholder have caused this Agreement to be signed by themselves or their duly
authorized respective officers and to become effective, all as of the date first
written above.
METRON SEMICONDUCTORS EUROPA B.V. METRON TECHNOLOGY, INC.
By: /s/ James Dauwalter By: /s/ James Dauwalter
Its: Managing Director Its:President and Chief Executive Officer
EDWARD SEGAL
/s/ Edward Segal
6.
