<PAGE>
STOCK PURCHASE AGREEMENT
among:
METRON TECHNOLOGY N.V.,
a corporation organized under the laws of the Netherlands;
and
CHER LEW HIONG JAMES, CHIA CHIAP HENG BASIL, CHER LEW KWANG FRANCIS,
AND ELITE STAR ENTERPRISES PTE. LTD.,
a company organized under the laws of Singapore,
being all of the shareholders of Intec Technology (S) Pte. Ltd.
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Dated as of November 17, 2000
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<TABLE>
<CAPTION>
TABLE OF CONTENTS
PAGE
<S> <C> <C>
SECTION 1. SALE AND PURCHASE OF SHARES; RELATED TRANSACTIONS...............................................1
1.1 Sale and Purchase of Shares.....................................................................1
1.2 Consideration...................................................................................1
1.3 Closing.........................................................................................2
1.4 Escrow Arrangements.............................................................................4
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS......................................5
2.1 Due Organization; No Subsidiaries; Etc..........................................................5
2.2 Charter Documents; Records......................................................................5
2.3 Capitalization, Etc.............................................................................6
2.4 Authorization...................................................................................6
2.5 Financial Statements............................................................................6
2.6 Absence of Changes..............................................................................7
2.7 Assets..........................................................................................7
2.8 Bank Accounts...................................................................................7
2.9 Receivables; Major Customers....................................................................7
2.10 Inventory.......................................................................................8
2.11 Real Property...................................................................................8
2.12 Proprietary Assets..............................................................................8
2.13 Contracts.......................................................................................9
2.14 Liabilities.....................................................................................9
2.15 Compliance With Legal Requirements.............................................................10
2.16 Governmental Authorizations....................................................................10
2.17 Employee and Labor Matters.....................................................................10
2.18 Benefit Plans..................................................................................11
2.19 Tax Matters....................................................................................11
2.20 Environmental Matters..........................................................................12
2.21 Sale of Products; Performance of Services......................................................12
2.22 Insurance......................................................................................13
2.23 Related Party Transactions.....................................................................13
2.24 Proceedings; Orders............................................................................13
2.25 Authority; Binding Nature of Agreements........................................................14
<PAGE>
TABLE OF CONTENTS
(CONTINUED)
2.26 Non-Contravention; Consents....................................................................14
2.27 Brokers........................................................................................14
2.28 Representations and Warranties Concerning the Selling Stockholders.............................14
2.29 Regulation S Investor Representations..........................................................15
2.30 Buy-out of Minority Shareholders of ECS Industries Sdn. Bhd....................................16
2.31 Full Disclosure................................................................................16
2.32 Pooling of Interests...........................................................................16
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER....................................................16
3.1 Authorization..................................................................................16
3.2 Authority; Binding Nature of Agreement.........................................................16
3.3 Brokers........................................................................................17
3.4 Consideration Shares...........................................................................17
3.5 Pooling of Interests...........................................................................17
3.6 Non-Contravention; Consents....................................................................17
SECTION 4. POST-CLOSING COVENANTS OF SELLING STOCKHOLDERS.................................................18
4.1 Delivery of Documents..........................................................................18
4.2 Transfer Restrictions..........................................................................18
SECTION 5. POST-CLOSING COVENANTS OF PURCHASER............................................................19
5.1 Governmental Filings...........................................................................19
5.2 Registration of Consideration Shares...........................................................19
SECTION 6. [RESERVED].....................................................................................22
SECTION 7. [RESERVED].....................................................................................23
SECTION 8. [RESERVED].....................................................................................23
SECTION 9. [RESERVED].....................................................................................23
SECTION 10. INDEMNIFICATION, ETC...........................................................................23
10.1 Survival of Representations and Covenants......................................................23
10.2 Indemnification by Selling Stockholders........................................................23
10.3 Threshold and Maximum Amount of Indemnification and Payment Obligation.........................24
10.4 Right to Require Cure of Breach................................................................25
10.5 No Contribution................................................................................25
ii.
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TABLE OF CONTENTS
(CONTINUED)
10.6 Interest.......................................................................................25
10.7 Setoff.........................................................................................25
10.8 Remedies.......................................................................................25
10.9 Defense of Third Party Claims..................................................................25
10.10 Exercise of Remedies by Indemnitees Other Than Purchaser.......................................26
10.11 Claims Against Escrowed Shares.................................................................26
10.12 Release of Escrowed Shares.....................................................................27
SECTION 11. MISCELLANEOUS PROVISIONS.......................................................................27
11.1 Joint and Several Liability....................................................................27
11.2 Further Assurances.............................................................................27
11.3 Fees and Expenses..............................................................................27
11.4 Attorneys' Fees................................................................................27
11.5 Notices........................................................................................27
11.6 Publicity......................................................................................29
11.7 Time of the Essence............................................................................29
11.8 Headings.......................................................................................29
11.9 Counterparts...................................................................................29
11.10 Governing Law..................................................................................29
11.11 Consultation and Arbitration...................................................................29
11.12 Successors and Assigns.........................................................................30
11.13 Remedies Cumulative; Specific Performance......................................................30
11.14 Waiver.........................................................................................31
11.15 Amendments.....................................................................................31
11.16 Severability...................................................................................31
11.17 Entire Agreement...............................................................................31
11.18 Payment........................................................................................31
11.19 Construction...................................................................................31
11.17 Entire Agreement...............................................................................32
11.18 Payment........................................................................................32
11.19 Construction...................................................................................32
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iii.
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<TABLE>
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TABLE OF CONTENTS
(CONTINUED)
<S> <C>
Exhibit A: Certain Definitions
Exhibit B: Allocation of Consideration
Exhibit C: General Release
Exhibit D: Escrow Agreement
Exhibit E: Employment Agreement
Exhibit F: Noncompetition Agreement
</TABLE>
iv.
<PAGE>
STOCK PURCHASE AGREEMENT
THIS STOCK PURCHASE AGREEMENT Is entered into as of November 17, 2000, by
and among Metron Technology N.V., a Dutch corporation ("MTNV" or the
"PURCHASER"), and the following parties (collectively, the "SELLING
STOCKHOLDERS"): Cher Lew Hiong James, an individual; Chia Chiap Heng Basil, an
individual; Cher Lew Kwang Francis, an individual; and Elite Star Enterprises
Pte. Ltd., a private company limited by shares incorporated under the laws of
Singapore ("ELITE"). Certain capitalized terms used in this Agreement are
defined on Exhibit A.
RECITALS
A. The Selling Stockholders own 500,000 ordinary shares of One Singapore
Dollar (S$1.00) (the "Shares") each in the capital of Intec Technology (S) Pte.
Ltd., a private company limited by shares incorporated under the laws of
Singapore ("INTEC"), which constitute one hundred percent (100%) of the issued
and outstanding capital of Intec.
B. The Selling Stockholders wish to sell the Shares to the Purchaser on
the terms set forth in this Agreement.
AGREEMENT
The Purchaser and the Selling Stockholders, intending to be legally bound,
agree as follows:
SECTION 1. SALE AND PURCHASE OF SHARES; RELATED TRANSACTIONS
1.1 SALE AND PURCHASE OF SHARES. AT the Closing, the Selling Stockholders
shall sell, assign, transfer and deliver the Shares to the Purchaser, and the
Purchaser shall purchase the Shares from the Selling Stockholders, on the terms
and subject to the conditions set forth in this Agreement. Each of the Selling
Stockholders hereby waives all rights of pre-emption over the Shares to be
purchased by the Purchaser conferred by the Articles of Association of Intec or
in any other way.
1.2 CONSIDERATION.
(a) CONSIDERATION. The aggregate consideration payable by the
Purchaser to the Selling Stockholders for the sale of the Shares shall be
475,000 fully-paid shares of the common stock of MTNV (the "CONSIDERATION
SHARES").
(b) PAYMENT. At the Closing, the Purchaser shall deliver to the
Selling Stockholders certificates representing an aggregate of ninety-two
percent (92%) of the Consideration Shares (with adjustments for rounding of
partial shares).
(c) INDEMNIFICATION HOLDBACK. At the Closing, the Purchaser shall
deposit in escrow with Allen & Gledhill (the "ESCROW AGENT") certificates
constituting an aggregate of eight percent (8%) of the Consideration Shares
(with adjustments for rounding of partial shares) (the "ESCROWED SHARES")
pursuant to the provisions of SECTION 1.4. The Escrow Agent shall release the
Escrowed Shares only in accordance with the terms of an escrow agreement to be
executed and delivered at the Closing as set forth in SECTION 1.3 (the "ESCROW
AGREEMENT").
(d) ALLOCATION OF CONSIDERATION. The Consideration Shares will be
allocated among the Selling Stockholders in proportion to their ownership of the
Shares, as set forth in EXHIBIT B.
1.
<PAGE>
1.3 CLOSING.
(a) The closing of the sale of the Shares to the Purchaser (the
"CLOSING") shall take place at the offices of Allen & Gledhill at 9:00 a.m.
(Singapore time) on November 17, 2000, or at such other place or time as the
parties may jointly designate. "CLOSING DATE" shall mean the date of the
Closing.
(b) At the Closing:
(i) the Selling Stockholders shall deliver to the Purchaser the
share certificates representing the Shares, together with executed share
transfers and the Stamp Duty Documents and a duly certified copy of a board
resolution of Elite and a resolution of the shareholders of Elite approving the
entry into this Agreement and the other Transactional Agreements to which it is
a party, and the transactions contemplated herein and therein respectively;
(ii) the Purchaser shall deliver ninety-two percent (92%) of the
Consideration Shares to the Selling Stockholders as contemplated by SECTION
1.2(b), and shall deposit the Escrowed Shares with the Escrow Agent pursuant to
the Escrow Agreement contemplated by SECTION 1.2(c).
(iii) the Selling Stockholders shall deliver to the Purchaser the
resignations of Tay Siong Suanh, Cher Lew Hiong James, Chia Chiap Heng Basil and
Cher Lew Kwang Francis from their positions as directors and/or officers of
Intec, with confirmation by them that they have no claim against the Company for
compensation for loss of office or otherwise howsoever;
(iv) the Selling Stockholders shall deliver to the Purchaser the
resignation of Au Yeong Kok Chee as secretary of Intec, with confirmation by him
that he has no claim against the Company for compensation for loss of office or
otherwise howsoever;
(v) the Selling Stockholders shall deliver to the Purchaser the
resignation of Lo Hock Ling & Co. as auditors of Intec, with confirmation by
them that they have no claim against the Company for compensation for loss of
office or otherwise howsoever;
(vi) the Selling Stockholders shall procure the passing of Board
resolutions of Intec (in terms approved by the Purchaser prior to Closing):
(1) approving the registration of the share transfers
referred to in SECTION 1.3(b)(i);
(2) accepting the resignations referred to in SECTION
1.3(b)(iii) AND (iv) and appointing such persons as the
Purchaser may nominate as directors, officers and the
secretary of Intec;
(3) approving the Transactional Agreements to which it is a
party, and the transactions contemplated therein
respectively; and
(4) approving or ratifying the acquisition of all the
issued shares in the capital of ECS Industries Sdn.
Bhd. not already held by Intec for an aggregate
consideration not exceeding Malaysian Ringgit One
Hundred Fifty-One Thousand Eight Hundred (RM151,800).
and shall deliver to the Purchaser duly certified copies of
such Board resolutions;
2.
<PAGE>
(vii) the Selling Stockholders shall procure the passing of
resolutions in general meeting of Intec (in terms approved by the Purchaser
prior to Closing) accepting the resignations referred to in SECTION 1.3(b)(iv)
appointing such person as the Purchaser may nominate as auditors of Intec, and
shall deliver to the Purchaser duly certified copies of such resolutions;
(viii) the Selling Stockholders shall deliver to the Purchaser
the Certificate of Incorporation, Memorandum and Articles of Association, common
seal and statutory books of Intec (duly written and up-to-date);
(ix) the Selling Stockholders shall execute and deliver to the
Purchaser and Intec a General Release in the form of EXHIBIT C;
(x) the Selling Stockholders shall deliver evidence, in form
and substance satisfactory to Purchaser, of the payments and satisfaction in
full of all obligations of the Companies and the Selling Stockholders under the
Credit Facilities Agreement dated August 25, 1997 between Intec and the
Industrial & Commercial Bank Limited ("ICB FACILITY"), and the Banking
Facilities Agreement dated September 21, 1998 between Intec and RHB Bank Berhad
("RHB FACILITY") and the termination of such Agreements;
(xi) the Selling Stockholders shall deliver evidence, in form
an substance satisfactory to the Purchaser, of the complete release and
discharge of all guarantees, liens and charges (including, without limitation,
the Memorandum of Charge Over Deposit dated September 22, 1997 in favor of RHB)
with respect to the facilities described in SECTION 1.3(b)(x) hereof;
(xii) the Selling Stockholders shall deliver evidence, in form
and substance satisfactory to Purchaser, of the acquisition of all of the issue
shares in the capital of ECS Industries Sdn. Bhd. not already held by Intec for
an aggregate consideration not exceeding Malaysian Ringgit One Hundred Fifty-One
Thousand Eight Hundred (RM151,800);
(xiii) each of the parties hereto shall execute and deliver to
each other party the Escrow Agreement in the form of EXHIBIT D, duly executed by
the Escrow Agent and each Selling Stockholder shall deliver three original stock
transfer powers executed in blank to be delivered to the Escrow Agent in
connection with the Escrowed Shares;
(xiv) each of the Selling Stockholders (other than Elite) shall
deliver to the Purchaser an Employment Agreement in the form of EXHIBIT E, and
the Purchaser shall deliver the same to the Selling Stockholders (other than
Elite), signed by each other party thereto;
(xv) each of the Selling Stockholders shall deliver to the
Purchaser a Noncompetition Agreement in the form of EXHIBIT F, and the Purchaser
shall deliver the same to the Selling Stockholders, signed by each other party;
(xvi) the Purchaser shall deliver to the Selling Stockholders a
certified copy of the resolution of the Supervisory Board of the Purchaser
approving the entering into of this Agreement and the transactions contemplated
hereby, including issuance of the Consideration Shares; and
(xvii) the Purchaser shall deliver to the Selling Stockholders,
and the Selling Stockholders shall deliver the same to the Purchaser, signed by
each other party thereto, a side letter with respect to the representations and
warranties contained in Section 3.2(b) hereto.
3.
<PAGE>
1.4 ESCROW ARRANGEMENTS.
(a) The Escrowed Shares, and all proceeds from any sale, exchange,
conversion, reclassification or cancellation thereof (as further provided in
SECTION 1.4(b)(iv) hereof), shall be held in escrow by the Escrow Agent in
accordance with the Escrow Agreement in order to secure the indemnification
obligations of the Selling Stockholders under this Agreement. The fees of the
Escrow Agent shall be borne by Purchaser.
(b) As further provided in SECTION 10 hereof, the following provisions
shall apply with respect to the Escrowed Shares held in escrow:
(i) Except as set forth in SECTION 1.4(e) hereof, the Selling
Stockholders shall be deemed to be the record and beneficial holders of the
Escrowed Shares for all purposes and, except as hereinafter provided, shall have
the right to exercise all rights and privileges as a holder of common stock of
MTNV, including, without limitation, the right to exercise all voting rights
with respect to such shares and the right to receive all cash and non-cash
dividends and other distributions thereon.
(ii) Notwithstanding the foregoing, until released from escrow, all
cash and non-cash dividends or other distributions paid or payable on or with
respect to the Escrowed Shares shall become part of the escrow deposit and shall
be held by the Escrow Agent pursuant to SECTION 10 hereof.
(iii) Until the Escrowed Shares are released from escrow to the
Selling Stockholders, the Selling Stockholders shall not have the right,
directly or indirectly, to sell (except as set forth in SECTION 1.4(e) hereof),
assign, pledge, encumber, hypothecate or otherwise dispose of any such shares or
any interest therein.
(iv) If, at any time prior to the release of the Escrowed Shares from
escrow, there shall be a merger or consolidation of MTNV with or into another
entity and the then-issued and outstanding MTNV Common Stock is cancelled or
exchanged in connection therewith, then the proceeds thereof (whether in the
form of cash, securities or other property or assets) which a holder of the
Escrowed Shares is entitled to receive, shall be delivered to and held in escrow
by the Escrow Agent. If at any time prior to the release of the Escrowed Shares
from escrow, there shall occur a subdivision, combination, conversion or
reclassification of the MTNV Common Stock into a different class or kind of
security, then the number and kind of securities as are issuable to the record
holder of the Escrowed Shares as a result of such change with respect to the
Escrowed Shares shall be delivered to and held in escrow by the Escrow Agent.
Any proceeds or securities held in escrow by the Escrow Agent pursuant to this
SECTION 1.4(b)(iv) shall be subject to the same escrow arrangements and
provisions as are specified herein for the Escrowed Shares and any securities
shall be valued in like manner as the Escrowed Shares as set forth in the Escrow
Agreement.
(c) Notwithstanding anything to the contrary herein, no stock certificates
representing fractional shares of MTNV Common Stock shall be issued to the
Selling Stockholders. In lieu of such fractional shares, the Selling
Stockholders shall be paid instead an amount of cash equal to such fraction of a
share multiplied by the Closing Date Price (as adjusted for any subdivision,
combination, conversion or reclassification).
(d) As further provided in SECTION 3.4, the Consideration Shares are not
registered or qualified under any federal, foreign or state securities laws and
all certificates representing such shares shall bear appropriate legends
incorporating any applicable securities laws restrictions unless and until a
registration statement relating to such shares becomes effective, as provided
for in SECTION 5.2 hereof.
4.
<PAGE>
(e) Notwithstanding the restrictions set forth in SECTION 1.4(b)(iii), the
Selling Stockholders shall be permitted to sell any or all of the Escrowed
Shares (and upon such sale, the Selling Stockholders shall no longer be the
record and beneficial owner of such Escrowed Shares, and such Escrowed Shares
shall be released from escrow) provided that:
(i) The Selling Stockholders have notified MTNV at least five (5)
business days prior to the anticipated date of sale of such Escrowed Shares of
the Selling Stockholders' intention to sell such Escrowed Shares, and the total
number of Escrowed Shares to be sold;
(ii) such Escrowed Shares are covered by an effective registration
statement under the Securities Act, pursuant to SECTION 5.2 hereof or are
otherwise transferable pursuant to SECTION 4.2 hereof;
(iii) all proceeds of such sale are in cash and such cash is delivered
immediately upon sale to the escrow account specified in the Escrow Agreement;
and
(iv) except as otherwise permitted by the Escrow Agreement, such
Escrowed Shares are not subject to a Payment Notice (as defined in the Escrow
Agreement).
SECTION 2. REPRESENTATIONS AND WARRANTIES OF THE SELLING STOCKHOLDERS
Except as set forth in a part of the Disclosure Schedule having the number
of the section to which the exception is taken, the Selling Stockholders jointly
and severally represent and warrant, to and for the benefit of the Indemnitees,
as of the date of this Agreement, as follows:
2.1 DUE ORGANIZATION; NO SUBSIDIARIES; ETC.
(a) Each of the Companies is a corporation duly organized, validly
existing under the laws of Singapore and Malaysia, respectively, and has all
necessary power and authority: (i) to conduct its business in the manner in
which its business is currently being conducted; (ii) to own and use its assets
in the manner in which its assets are currently owned and used; and (iii) to
perform its obligations under all Intec Contracts.
(b) Neither of the Companies nor any of their respective shareholders
has ever approved, or commenced any proceeding or made any election
contemplating, the dissolution or liquidation of the Companies or the winding up
or cessation of the Companies' business or affairs.
(c) As of the Closing, Intec has no subsidiaries except ECS
Industries Sdn. Bhd., and has never owned, beneficially or otherwise, any shares
or other securities of, or any direct or indirect interest of any nature in, any
Entity other than ECS Industries Sdn. Bhd. Intec is the legal and beneficial
owner of one hundred percent (100%) of the issued and paid-up capital of ECS
Industries Sdn. Bhd., free and clear of any Encumbrances, in full compliance
with all applicable Legal Requirements.
2.2 CHARTER DOCUMENTS; RECORDS.
(a) Intec has delivered to the Purchaser accurate and complete copies
of: (i) each Company's Certificate of Incorporation, Memorandum and Articles of
Association, including all amendments thereto; (ii) the share register and other
statutory registers of the Companies; and (iii) the minutes and other records of
the meetings and other proceedings (including any actions taken by written
consent or otherwise without a meeting) of the shareholders of the Companies and
the board of directors of the Companies. There are no committees of the board of
directors of the Companies.
5.
<PAGE>
(b) There have been no meetings or other proceedings of the
shareholders of the Companies or the boards of directors of the Companies that
are not fully reflected in such minutes or other records.
(c) There has not been any violation of any of the provisions of each
Company's Memorandum and Articles of Association or of any resolution adopted by
the shareholders of either of the Companies, the Companies' boards of directors,
and no event has occurred, and no condition or circumstance exists, that might
(with or without notice or, with respect to deadlines under any Legal
Requirements or under any resolutions of the boards of directors or shareholders
of the Companies, lapse of time) constitute or result directly or indirectly in
such a violation.
(d) The books of account, share register and all other statutory
registers, minute books and other records of the Companies are accurate,
up-to-date and complete, and have been maintained in accordance with applicable
Legal Requirements and sound and prudent business practices.
2.3 CAPITALIZATION, ETC.
(a) The authorized share capital of Intec consists of 500,000 shares
having a par value of One Singapore Dollar (S$1.00), of which 500,000 ordinary
shares of One Singapore Dollar (S$1.00) have been issued and are fully paid up.
The authorized share capital of ECS Industries Sdn. Bhd. consists of 500,000
shares having a par value of Malaysian Ringgit One (RM1.00), of which 300,000
ordinary shares of Malaysian Ringgit One (RM1.00) have been issued and are fully
paid up. The Selling Stockholders have, and the Purchaser will acquire at the
Closing, good and valid title to the Shares free and clear of any Encumbrances.
The Shares are owned beneficially and of record as follows:
<TABLE>
<CAPTION>
SELLING STOCKHOLDER NUMBER OF SHARES
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<S> <C>
Cher Lew Hiong James 175,000
Chia Chiap Heng Basil 90,000
Cher Lew Kwang Francis 135,000
Elite 100,000
</TABLE>
(b) All of the Shares (i) have been duly authorized and validly
issued, (ii) are fully paid up, and (iii) have been issued in full compliance
with all applicable securities laws and other applicable Legal Requirements.
There are no options, warrants, rights outstanding, agreements or contracts that
could obligate Intec to issue additional shares or other securities of Intec.
The Selling Stockholders have delivered to the Purchaser accurate and complete
copies of the share certificates or other documentation evidencing the Shares.
2.4 AUTHORIZATION. All shareholder and corporate action necessary to
authorize the execution and delivery of this Agreement and all related documents
and instruments to be executed and delivered by the Selling Stockholders and by
Intec, and to authorize the performance by them of their obligations hereunder
and thereunder, has been duly taken.
2.5 FINANCIAL STATEMENTS. Intec has delivered to the Purchaser the
following financial statements and notes (collectively, the "INTEC FINANCIAL
STATEMENTS"), all of which are accurate and complete in all respects, present
fairly the consolidated financial position of the Companies as of their
respective dates and for the periods covered thereby, and have been prepared in
accordance with generally accepted accounting principles, applied on a
consistent basis throughout the periods covered:
(a) the audited consolidated balance sheet of the Companies as of
December 31, 1999, and the related audited consolidated statements of
operations, changes in shareholders' equity and
6.
<PAGE>
cash flows of the Companies for the year then ended, together with the notes
thereto and the unqualified report and certification of Lo Hock Ling & Co.
relating thereto; and
(b) the unaudited balance sheet (the "UNAUDITED INTERIM BALANCE
SHEET") of the Companies as of August 31, 2000 (the "UNAUDITED BALANCE SHEET
DATE"), and the related unaudited statements of operations, changes in
shareholders' equity and cash flows of the Companies for the eight months then
ended, together with the notes thereto.
2.6 ABSENCE OF CHANGES. Except as set forth in Part 2.6 of the Disclosure
Schedule, since the Unaudited Balance Sheet Date there has been no Material
Change to the business, operations, financial condition or prospects of the
Companies.
2.7 ASSETS.
(a) The Companies own, and have good, valid and marketable title to,
all assets purported to be owned by them. Part 2.7(a)(i) of the Disclosure
Schedule identifies (i) all assets having a book value equal to Fifty Thousand
Singapore Dollars (S$50,000) or more that are owned by the Companies, and (ii)
all assets that are being leased or licensed to the Companies. Except as set
forth in Part 2.7(a)(ii) of the Disclosure Schedule and except for inventory
subject to retention of title provisions in the Ordinary Course of Business, all
of the assets listed as owned by the Companies are owned free and clear of any
Encumbrances.
(b) Each item of equipment, furniture, fixtures, improvements and
other tangible assets identified or required to be identified in Part 2.7(a)(i)
of the Disclosure Schedule is structurally sound, free of defects and
deficiencies and in good condition and repair (ordinary wear and tear excepted),
complies in all respects with, and is being operated and otherwise used in full
compliance with, all applicable Legal Requirements; and is adequate for the uses
to which it is being put.
(c) Except as set forth in Part 2.7(c) of the Disclosure Schedule,
all charges, liens or security interests pursuant to any currently or previously
existing credit facilities of the Companies have been irrevocably released and
discharged in full. As of the Closing, neither Company is a party to any credit
banking facility with any Person, and no amounts are owed by the Companies or
the Selling Stockholders with respect to any credit facilities to which either
of the Companies was a party prior to the Closing. The ICB Facility was
satisfied and paid in full in the amount of S$137,995 and the RHB Facility was
satisfied and paid in full with no amount previously outstanding under the RHB
Facility.
2.8 BANK ACCOUNTS. Part 2.8 of the Disclosure Schedule accurately sets
forth, with respect to each account maintained by or for the benefit of the
Companies at any bank or other financial institution: (a) the name and location
of the institution at which such account is maintained; (b) the name in which
such account is maintained and the account number of such account; (c) a
description of such account and the purpose for which such account is used; (d)
the current balance in such account; (e) the rate of interest being earned on
the funds in such account; and (f) the names of all individuals authorized to
draw on or make withdrawals from such account. There are no safe deposit boxes
or similar arrangements maintained by or for the benefit of the Companies.
2.9 RECEIVABLES; MAJOR CUSTOMERS.
(a) Part 2.9 of the Disclosure Schedule provides an accurate and
complete breakdown and aging of all accounts receivable, notes receivable and
other receivables of the Companies as of August 31, 2000.
7.
<PAGE>
(b) Except as set forth in Part 2.9 of the Disclosure Schedule, all
notes and accounts receivable of the respective Companies reflected in the Intec
Financial Statements arose in connection with the sale of goods or services in
the Ordinary Course of Business, represent valid claims and legal obligations to
pay the respective Companies, are stated at net cash realizable value after
having made adequate provision as required by generally accepted accounting
principles for uncollectible amounts, bad debts, and rights of return, whether
or not in accordance with the Companies' respective customary and normal trade
terms or discounts, and for any other circumstances of which Selling
Stockholders are aware in which the accounts receivable are not collectible in
full. Except as disclosed in Part 2.9 of the Disclosure Schedule, none of those
accounts and notes receivable are due from any Person or Entity related by
ownership or otherwise to the Companies other than accounts and notes receivable
that are on arms-length commercial terms.
(c) Part 2.9 of the Disclosure Schedule accurately identifies, and
provides an accurate and complete breakdown of the revenues received from, each
customer or other Person that accounted for more than ten percent (10%) of the
consolidated gross revenues of each of the Companies in 1999 or for the period
ending on the Unaudited Balance Sheet Date. The Companies have not received any
notice or other communication (in writing or otherwise), and have not received
any other information, indicating that any customer or other Person identified
in Part 2.8 of the Disclosure Schedule may cease dealing with the Companies or
may otherwise reduce the volume of business transacted by such Person with the
Companies below historical levels.
2.10 INVENTORY.
(a) Part 2.10 of the Disclosure Schedule provides an accurate and
complete breakdown of all inventory (including raw materials, work in process
and finished goods) of the Companies as of August 31, 2000. All of the
Companies' existing inventory (including all inventory that is reflected on the
Unaudited Interim Balance Sheet and that has not been disposed of by the
Companies since the Unaudited Balance Sheet Date) except for amounts reflected
in the Unaudited Interim Balance Sheet: (a) is of such quality and quantity as
to be usable and saleable by the Companies in the Ordinary Course of Business;
(b) has been priced at the lower of cost or market value using the "first-in,
first-out" method; and (c) is free of any defect or deficiency.
(b) The inventory levels maintained by the Companies (i) are not in
the reasonable opinion of the Selling Stockholders excessive in light of the
Companies' respective normal operating requirements, and (ii) are adequate for
the conduct of the Companies' respective operations in the Ordinary Course of
Business.
2.11 REAL PROPERTY. The Companies do not own any real property or any
interest in real property, except for the leaseholds created under the real
property leases identified in Part 2.11 of the Disclosure Schedule. Part 2.11 of
the Disclosure Schedule provides an accurate and complete description of the
premises covered by said leases and the facilities located on such premises. The
Companies enjoy peaceful and undisturbed possession of such premises. Except for
real property interests pursuant to the contracts described in Items 1, 2 and 3
of Part 2.7(a) of the Disclosure Schedule, with respect to which title to the
real property has not passed to Intec, the Companies do not own and have never
owned any real property interests.
2.12 PROPRIETARY ASSETS. Part 2.12 of the Disclosure Schedule provides an
accurate and complete description of all Proprietary Assets that are owned by or
licensed to the Companies or that are otherwise used or useful in connection
with the Companies' businesses. The Companies are not, to the best of the actual
knowledge of the Selling Stockholders, infringing, and, to the best of the
actual knowledge of the Selling Stockholders, have never infringed, and the
Companies have not received any notice or other communication (in writing or
otherwise) of any actual, alleged, possible or potential infringement
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of, any Proprietary Asset owned or used by any other Person. The Selling
Stockholders are not aware that any other Person is infringing, and that any
Proprietary Asset owned or used by any other Person infringes or conflicts with,
any Proprietary Asset owned or used by the Companies. The Proprietary Assets
identified in Part 2.12 of the Disclosure Schedule constitute all of the
Proprietary Assets necessary to enable the Companies to conduct their businesses
in the manner in which their businesses are currently being conducted and in the
manner in which their businesses are proposed to be conducted.
2.13 CONTRACTS.
(a) Part 2.13(a) of the Disclosure Schedule identifies and provides
an accurate and complete description of each oral or written Intec Contract,
except for any Excluded Contract. Intec has delivered to the Purchaser accurate
and complete copies of all written Intec Contracts identified in Part 2.13(a) of
the Disclosure Schedule, including all amendments thereto.
(b) Each Intec Contract is valid and in full force and effect, and is
enforceable by Intec in accordance with its terms. To the best of the actual
knowledge of the Selling Stockholders and the directors and managers of the
Companies, each Person against which the Companies have or may acquire any
rights under any Intec Contract is solvent and is able to satisfy all of such
Person's current and future monetary obligations and other obligations and
Liabilities to the Companies. No Person is renegotiating, or has the right to
renegotiate, any amount paid or payable to the Companies under any Intec
Contract or any other term or provision of any Intec Contract.
(c) Except as set forth in Part 2.13(c) of the Disclosure Schedule,
(i) no Person has violated or breached, or declared or committed any default
under, any Intec Contract; (ii) no event has occurred, and no circumstance or
condition exists, that might (with or without notice or, with respect to
deadlines under any Legal Requirements or under any contracts of the Companies,
lapse of time) (A) result in a violation or breach of any of the provisions of
any Intec Contract, (B) give any Person the right to declare a default or
exercise any remedy under any Intec Contract, (C) give any Person the right to
accelerate the maturity or performance of any Intec Contract, or (D) give any
Person the right to cancel, terminate or modify any Intec Contract; (iii) none
of the Companies has received any notice or other communication (in writing or
otherwise) regarding any actual, alleged, possible or potential violation or
breach of, or default under, any Intec Contract; and (iv) Intec has not waived
any of its rights under any Intec Contract.
2.14 LIABILITIES.
(a) The Companies have no Liabilities, except for: (i) liabilities
identified as such in the "liabilities" column of the Unaudited Interim Balance
Sheet; (ii) accounts payable (of the type required to be reflected as current
liabilities in the "liabilities" column of a balance sheet prepared in
accordance with GAAP) incurred by the Companies in the Ordinary Course of
Business since December 31, 1999; (iii) the Companies' obligations under the
Contracts listed in Part 2.13(a) of the Disclosure Schedule and under Excluded
Contracts, to the extent that the existence of such obligations is ascertainable
solely by reference to such Contracts; and (iv) as disclosed in Part 2.13(a) of
the Disclosure Schedule.
(b) Part 2.14(b) of the Disclosure Schedule: (i) provides an accurate
and complete breakdown and aging of each of the Companies' accounts payable as
of the Unaudited Balance Sheet Date; (ii) provides an accurate and complete
breakdown of all customer deposits and other deposits held by each of the
Companies as of the date of this Agreement; and (iii) provides an accurate and
complete breakdown of each of the Companies' long-term debt as of the date of
this Agreement.
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2.15 COMPLIANCE WITH LEGAL REQUIREMENTS.
(a) Except as set forth in Part 2.15(a) of the Disclosure Schedule,
the Companies are in full compliance with each Legal Requirement that is
applicable to them or to the conduct of each of their businesses or the
ownership or use of any of their assets; and neither of the Companies has
received, at any time, any notice or other communication (in writing or
otherwise) from any Governmental Body or any other Person regarding (A) any
actual, alleged, possible or potential violation of, or failure to comply with,
any Legal Requirement, or (B) any actual, alleged, possible or potential
obligation on the part of the Companies to undertake, or to bear all or any
portion of the cost of, any cleanup or any remedial, corrective or response
action of any nature.
(b) To the best of the Knowledge of the Selling Stockholders, no
Governmental Body has proposed or is considering any Legal Requirement that, if
adopted or otherwise put into effect, (i) may have an adverse effect on the
Companies' businesses, condition, assets, liabilities, operations, financial
performance, net income or prospects or on the ability of the Companies or the
Selling Stockholders to comply with or perform any covenant or obligation under
any of the Transactional Agreements; or (ii) may have the effect of preventing,
delaying, making illegal or otherwise interfering with any of the Transactions.
2.16 GOVERNMENTAL AUTHORIZATIONS.
(a) Part 2.16 of the Disclosure Schedule identifies: (i) each
Governmental Authorization that is held by the Companies; and (ii) each other
Governmental Authorization that, to the best of the Knowledge of the Selling
Stockholders, is held by any of the Companies' employees and relates to or is
useful in connection with the Companies' businesses. The Companies have
delivered to the Purchaser accurate and complete copies of all of the
Governmental Authorizations identified in Part 2.16 of the Disclosure Schedule,
including all renewals thereof and all amendments thereto. Each Governmental
Authorization identified or required to be identified in Part 2.16 of the
Disclosure Schedule is valid and in full force and effect.
(b) Except as set forth in Part 2.16 of the Disclosure Schedule: (i)
the Companies and their employees are in full compliance with all of the terms
and requirements of each Governmental Authorization identified or required to be
identified in Part 2.16 of the Disclosure Schedule; and (ii) no event has
occurred, and no condition or circumstance exists, that might (with or without
notice or, with respect to deadlines under any Legal Requirements or under any
contracts of the Companies, lapse of time) (A) constitute or result directly or
indirectly in a violation of or a failure to comply with any term or requirement
of any Governmental Authorization identified or required to be identified in
Part 2.16 of the Disclosure Schedule, or (B) result directly or indirectly in
the revocation, withdrawal, suspension, cancellation, termination or
modification of any Governmental Authorization identified or required to be
identified in Part 2.16 of the Disclosure Schedule.
2.17 EMPLOYEE AND LABOR MATTERS.
(a) Part 2.17 of the Disclosure Schedule accurately sets forth, with
respect to each employee of the Companies (including any employee of the
Companies who is on a leave of absence or on layoff status): (i) the name, date
of birth and the date as of which such employee was originally hired by the
Companies or any predecessor Entity of the Companies; (ii) such employee's
title; (iii) the aggregate amount of the compensation (including wages, salary,
commissions, director's fees, fringe benefits, bonuses, profit-sharing payments
and other payments or benefits of any type) received by such employee from the
Companies with respect to services performed in the Companies' most recent
fiscal year; (iv) such employee's per annum compensation as of the date of this
Agreement; and (v) each Benefit Plan in which such employee participates or is
eligible to participate.
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(b) Except as set forth in Part 2.17 of the Disclosure Schedule, the
Companies are not a party to or bound by, and the Companies have not ever been a
party to or bound by, any employment agreement or any union contract, collective
bargaining agreement or similar Contract.
(c) The employment of each of the Companies' employees is subject
only to the requirements of the collective bargaining agreement (if any)
identified in Part 2.17 of the Disclosure Schedule and the requirements mandated
by applicable laws. Intec has delivered to the Purchaser accurate and complete
copies of all employee manuals and handbooks, disclosure materials, policy
statements and other such materials generally applicable to the employment of
the current and former employees of the Companies. The Companies have complied
at all times with applicable labor laws and regulations and with the provisions
of applicable collective bargaining agreements.
(d) The Companies are not engaged, and the Companies have not ever
been engaged, in any unfair labor practice of any nature under Singapore law.
There has never been any union-organized slowdown, work stoppage, labor dispute
or other union organizing activity, or any similar activity or dispute,
affecting the Companies or any of its employees. There is not now pending, and
no Person has threatened to commence, any such union-organized slowdown, work
stoppage, labor dispute or other union organizing activity or any similar
activity or dispute. No event has occurred, and no condition or circumstance
exists, that might directly or indirectly give rise to or provide a basis for
the commencement of any such union-organized slowdown, work stoppage, labor
dispute or other union organizing activity or any similar activity or dispute.
2.18 BENEFIT PLANS. Part 2.18 of the Disclosure Schedule identifies and
provides an accurate description of each Benefit Plan. The Selling Stockholders
have caused to be delivered to the Purchaser accurate and complete copies of all
documents relating to each Benefit Plan. Each Benefit Plan is being and has at
all times been operated and administered in full compliance with the provisions
thereof. Each contribution or other payment that is required to have been
accrued or made under or with respect to any Benefit Plan has been duly accrued
and made on a timely basis. Each Benefit Plan has at all times complied and been
operated and administered in full compliance with all applicable Legal
Requirements.
2.19 TAX MATTERS.
(a) Each Tax required to have been paid, or claimed by any
Governmental Body to be payable, by the Companies (whether pursuant to any Tax
Return or otherwise) has been duly paid in full or on a timely basis. Any Tax
required to have been withheld or collected by the Companies has been duly
withheld and collected; and (to the extent required) each such Tax has been paid
to the appropriate Governmental Body.
(b) Part 2.19 of the Disclosure Schedule accurately identifies all
Tax Returns required to be filed by or on behalf of the Companies with any
Governmental Body with respect to any taxable period ending on or before the
Closing Date (collectively, the "INTEC RETURNS"). All Intec Returns (i) have
been or will be filed when due, and (ii) have been, or will be when filed,
accurately and completely prepared in full compliance with all applicable Legal
Requirements. All amounts shown on the Intec Returns to be due on or before the
Closing Date, and all amounts otherwise payable in connection with the Intec
Returns on or before the Closing Date, have been or will be paid on or before
the Closing Date. Intec has delivered to the Purchaser accurate and complete
copies of all Intec Returns filed since December 31, 1999.
(c) The Intec Financial Statements fully accrue all actual and
contingent liabilities for Taxes with respect to all periods through the dates
thereof in accordance with GAAP. The Companies have established, in the Ordinary
Course of Business, reserves adequate for the payment of all Taxes for
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the period from December 31, 1999 to the Unaudited Balance Sheet Date and will
continue to do so through the Closing Date, and the dollar amount of such
reserves has been disclosed to the Purchaser.
(d) Each Intec Return relating to income Taxes that has been filed
with respect to any period ended on or prior to December 31, 1999 has either (i)
been accepted by all relevant Governmental Bodies, or (ii) by virtue of the
expiration of the limitation period under applicable Legal Requirements, is no
longer subject to examination or audit by any Governmental Body. Part 2.19 of
the Disclosure Schedule accurately identifies each examination or audit of any
Intec Return that has been conducted since December 31, 1994. Intec has
delivered to the Purchaser accurate and complete copies of all audit reports and
similar documents (to which the Companies have access) relating to Intec
Returns. Except as set forth in Part 2.19 of the Disclosure Schedule, no
extension or waiver of the limitation period applicable to any of the Intec
Returns has been granted (by the Companies or any other Person), and no such
extension or waiver has been requested from the Companies.
(e) No claim or other Proceeding is pending or has been threatened
against or with respect to the Companies in respect of any Tax. There are no
unsatisfied Liabilities for Taxes (including liabilities for interest, additions
to tax and penalties thereon and related expenses) with respect to any notice of
deficiency or similar document received by the Companies.
2.20 ENVIRONMENTAL MATTERS. The Companies are not liable or potentially
liable for any response cost or natural resource damages at or with respect to
any site. The Companies have not ever received any notice or other communication
(in writing or otherwise) from any Governmental Body or other Person regarding
any actual, alleged, possible or potential Liability arising from or relating to
the presence, generation, manufacture, production, transportation, importation,
use, treatment, refinement, processing, handling, storage, discharge, release,
emission or disposal of any Hazardous Material. No Person has ever commenced or
threatened to commence any contribution action or other Proceeding against the
Companies in connection with any such actual, alleged, possible or potential
Liability; and no event has occurred, and no condition or circumstance exists,
that may directly or indirectly give rise to, or result in the Companies
becoming subject to, any such Liability.
2.21 SALE OF PRODUCTS; PERFORMANCE OF SERVICES.
(a) To the best of the actual knowledge of the Selling Stockholders
and directors and managers of the Companies, each product that has been sold by
the Companies to any Person: (i) conformed and complied in all respects with the
terms and requirements of any applicable warranty or other Contract and with all
applicable Legal Requirements; and (ii) was free of any design defects,
construction defects or other defects or deficiencies at the time of sale. All
repair services and other services that have been performed by the Companies
were performed properly and in full conformity with the terms and requirements
of all applicable warranties and other Contracts and with all applicable Legal
Requirements.
(b) The Companies will not incur or otherwise become subject to any
Liability arising directly or indirectly from any product manufactured or sold,
or any repair services or other services performed by, the Companies on or at
any time prior to the Closing Date.
(c) Except as disclosed in Part 2.21 of the Disclosure Schedule, no
product manufactured or sold by the Companies has been the subject of any recall
or other similar action; and no event has occurred, and no condition or
circumstance exists, that might (with or without notice or, with respect to
deadlines under any Legal Requirements or under any contracts of the Companies,
lapse of time) directly or indirectly give rise to or serve as a basis for any
such recall or other similar action relating to any such product.
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(d) No customer or other Person has ever asserted or threatened to
assert any claim against the Companies (i) under or based upon any warranty
provided by or on behalf of the Companies, or (ii) under or based upon any other
warranty relating to any product sold by the Companies or any services performed
by either of them. To the best of the Knowledge of the Selling Stockholders, no
event has occurred, and no condition or circumstance exists, that might (with or
without notice or, with respect to deadlines under any Legal Requirements or
under any contracts of the Companies, lapse of time) directly or indirectly give
rise to or serve as a basis for the assertion of any such claim.
2.22 INSURANCE. Part 2.22 of the Disclosure Schedule accurately sets forth,
with respect to each insurance policy maintained by or at the expense of, or for
the direct or indirect benefit of, the Companies: (i) the name of the insurance
carrier that issued such policy and the policy number of such policy; (ii)
whether such policy is a "claims made" or an "occurrences" policy; (iii) a
description of the coverage provided by such policy; (iv) the annual premium
payable with respect to such policy, and the cash value (if any) of such policy;
and (v) a description of any claims pending, and any claims that have been
asserted in the past, with respect to such policy. Each of such policies is
valid, enforceable and in full force and effect. All of the information
contained in the applications submitted in connection with said policies was (at
the times said applications were submitted) accurate and complete, and all
premiums and other amounts owing with respect to said policies have been paid in
full or on a timely basis. The nature, scope and amounts of the insurance
coverage provided by said policies are sufficient to adequately insure the
Companies' businesses, assets, and operations.
2.23 RELATED PARTY TRANSACTIONS. Except as set forth in Part 2.23 of the
Disclosure Schedule: (a) no Related Party has, and no Related Party has at any
time since December 31, 1998 had, any direct or indirect interest of any nature
in any asset used in or otherwise relating to the business of the Companies; (b)
no Related Party is, or has at any time since December 31, 1998 been, indebted
to the Companies; (c) since December 31, 1998, no Related Party has entered
into, or has had any direct or indirect financial interest in, any Contract,
transaction or business dealing of any nature involving the Companies; (d) no
Related Party is competing, or has at any time since December 31, 1998 competed,
directly or indirectly, with the Companies in any market served by the
Companies; (e) no Related Party has any claim or right against the Companies;
and (f) no event has occurred, and no condition or circumstance exists, that
might (with or without notice or, with respect to deadlines under any Legal
Requirements or under any contracts of the Companies, lapse of time) directly or
indirectly give rise to or serve as a basis for any claim or right in favor of
any Related Party against the Companies.
2.24 PROCEEDINGS; ORDERS.
(a) Except as set forth in Part 2.24 of the Disclosure Schedule,
there is no pending Proceeding, and no Person has threatened to commence any
Proceeding: (i) that involves the Companies or that otherwise relates to or
might affect the Companies' businesses or any of the assets owned or used by the
Companies (whether or not any the Companies is named as a party thereto); or
(ii) that challenges, or that may have the effect of preventing, delaying,
making illegal or otherwise interfering with, any of the Transactions. Except as
set forth in Part 2.24 of the Disclosure Schedule, no event has occurred, and no
claim, dispute or other condition or circumstance exists, that might directly or
indirectly give rise to or serve as a basis for the commencement of any such
Proceeding.
(b) There is no Order to which the Companies, or any of the assets
owned or used by the Companies, is subject; and none of the Selling Stockholders
is subject to any Order that relates to the Companies' businesses or to any of
the assets owned or used by the Companies.
(c) To the best of the Knowledge of the Selling Stockholders, no
officer or employee of the Companies is subject to any Order that prohibits such
officer or employee from engaging in or continuing any conduct, activity or
practice relating to the Companies' business.
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2.25 AUTHORITY; BINDING NATURE OF AGREEMENTS.
(a) This Agreement constitutes the legal, valid and binding
obligation of the Selling Stockholders, enforceable against the Selling
Stockholders in accordance with its terms.
(b) Each Selling Stockholder has the absolute and unrestricted right,
power and capacity to enter into and to perform its obligations under each of
the Transactional Agreements to which it is or may become a party. This
Agreement constitutes the legal, valid and binding obligation of each of the
Selling Stockholders, enforceable against each of the Selling Stockholders in
accordance with its terms. Upon the execution of each of the other Transactional
Agreements at the Closing, each of such other Transactional Agreements will
constitute the legal, valid and binding obligation of each Selling Stockholder
who is a party thereto, and will be enforceable against such Selling Stockholder
in accordance with its terms.
2.26 NON-CONTRAVENTION; CONSENTS.
(a) Except as set forth in Part 2.26 of the Disclosure Schedule,
neither the execution and delivery of any of the Transactional Agreements, nor
the consummation or performance of any of the Transactions, will directly or
indirectly (with or without notice or, with respect to deadlines under any Legal
Requirements or under any contracts of the Companies, lapse of time) constitute
a Contravention Event.
(b) Except as set forth in Part 2.26 of the Disclosure Schedule,
neither the Companies nor the Selling Stockholders was, is or will be required
to make any filing with or give any notice to, or to obtain any Consent from,
any Person in connection with the execution and delivery of any of the
Transactional Agreements or the consummation or performance of any of the
Transactions.
2.27 BROKERS. Neither the Companies nor the Selling Stockholders have
agreed or become obligated to pay, or has taken any action that might result in
any Person claiming to be entitled to receive, any brokerage commission,
finder's fee or similar commission or fee in connection with any of the
Transactions.
2.28 REPRESENTATIONS AND WARRANTIES CONCERNING THE SELLING STOCKHOLDERS.
(a) Each of the Selling Stockholders has the capacity and financial
capability to comply with and perform all of its covenants and obligations under
each of the Transactional Agreements to which it is or may become a party.
(b) No Selling Stockholder has, at any time: (i) made a general
assignment for the benefit of creditors, (ii) filed, or had filed against it,
any bankruptcy petition or similar filing, (iii) suffered the attachment or
other judicial seizure of all or a substantial portion of its assets, (iv) been
convicted of, or pleaded guilty to, any felony, or (v) taken or been the subject
of any action that may have an adverse effect on its ability to comply with or
perform any of its covenants or obligations under any of the Transactional
Agreements.
(c) No Selling Stockholder is subject to any Order that may have an
adverse effect on its ability to comply with or perform any of its covenants or
obligations under any of the Transactional Agreements. There is no Proceeding
pending, and no Person has threatened to commence any Proceeding, that may have
an adverse effect on the ability of any Selling Stockholder to comply with or
perform any of its covenants or obligations under any of the Transactional
Agreements. No event has occurred, and no claim, dispute or other condition or
circumstance exists, that might directly or indirectly give rise to or serve as
a basis for the commencement of any such Proceeding.
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2.29 REGULATION S INVESTOR REPRESENTATIONS. The Selling Stockholders
understand that the Consideration Shares have not been registered under the
United States Federal Securities Act of 1933, as amended (the "SECURITIES ACT").
The Selling Stockholders also understand (i) that the Consideration Shares have
been issued by MTNV in reliance on one or more of the exemptions from
registration contained in Section 4(2) of the Securities Act or Regulation S
thereunder based in part upon the Selling Stockholders' representations
contained in this Agreement, and (ii) that the issuance of the Consideration
Shares has not been approved or reviewed by the United States Securities and
Exchange Commission or any other Governmental Body.
(a) SELLING STOCKHOLDERS BEAR ECONOMIC RISK. The Selling Stockholders
understand and agree that they must bear the economic risk of this investment,
including without limitation the risk that the economic value of the
Consideration Shares could decrease to zero, indefinitely unless the
Consideration Shares are registered pursuant to the Securities Act, or an
exemption from registration is available. The Selling Stockholders understand
that the Purchaser has no present intention of registering the Consideration
Shares except as set forth in SECTION 5.2. The Selling Stockholders also
understand that there is no assurance that any exemption from registration under
the Securities Act will be available and that, even if available, such exemption
may not allow the Selling Stockholders to transfer all or any portion of the
Consideration Shares under the circumstances, in the amounts or at the times the
Selling Stockholders might propose.
(b) ACQUISITION FOR OWN ACCOUNT. The Selling Stockholders are
acquiring the Consideration Shares for their own account for investment only,
and not with a view towards their distribution, and are not acquiring such Stock
for the account or benefit of any U.S. Person. None of the Selling Stockholders
has any contract, undertaking, agreement or arrangement with any Person to sell,
transfer or grant participations to any Person in the United States or to a U.S.
Person, or any hedging transaction with any Person in the United States or to a
United States resident, with respect to any of the Consideration Shares.
Further, the Selling Stockholders are aware of no publication of any
advertisement in connection with the transactions contemplated in the Agreement.
(c) COMPANY INFORMATION. The Selling Stockholders have had the
opportunity to review public filings made by the Purchaser and have had an
opportunity to discuss the Purchaser's business, management and financial
affairs with directors, officers and/or management of the Purchaser. The Selling
Stockholders have also had the opportunity to ask questions of and receive
answers from, the Purchaser and its management regarding the terms and
conditions of this investment.
(d) RULES 144 AND 145. The Selling Stockholders acknowledge and agree
that the Consideration Shares must be held indefinitely unless such Stock is
resold in accordance with the provisions of Regulation S or pursuant to a
subsequent registration under the Securities Act, or an exemption from such
registration is available. The Selling Stockholders further agree not to engage
in hedging transactions with regard to the Consideration Shares unless in
compliance with the Securities Act. The Selling Stockholders have been advised
or are aware of the provisions of Rules 144 and 145 promulgated under the
Securities Act as in effect from time to time, which permit limited resale of
shares purchased in a private placement subject to the satisfaction of certain
conditions, including, among other things: the availability of certain current
public information about the issuer, the resale occurring following the required
holding period under Rule 144 and/or 145, and the number of shares being sold
during any three-month period not exceeding specified limitations.
(e) RESIDENCE. If the Selling Stockholder is an individual, then the
Selling Stockholder resides in Singapore. If the Selling Stockholder is a
corporation, limited liability company or other entity, then the office or
offices of the Selling Stockholder in which its investment decision was made is
located in Singapore.
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2.30 BUY-OUT OF MINORITY SHAREHOLDERS OF ECS INDUSTRIES SDN. BHD.
On November 17, 2000, Intec purchased the outstanding shareholdings of Yeap
Guat Leh, Teh Kooi Hong, Ho Beng Sun and Ng Ah Lui@Ng Lee Leng, constituting the
shareholders of all the issued shares in the capital of ECS Industries Sdn. Bhd.
other than Intec (the "MINORITY SHAREHOLDERS"), for an aggregate consideration
not exceeding Malaysian Ringgit One Hundred Fifty-One Thousand Eight Hundred
(RM151,800) (the "SHARE REPURCHASE TRANSACTION"). Intec has made disclosure of
this Transaction to the Minority Shareholders in the context of the Share
Repurchase, and the Share Repurchase was conducted in full compliance with all
Legal Requirements (including, without limitation, all Malaysian securities
laws). Intec and ECS Industries Sdn. Bhd. have, and shall have, no Liabilities
arising out of the Share Repurchase Transaction, including, without limitation,
claims by the Minority Shareholders for any additional compensation in
connection with the Share Repurchase.
2.31 FULL DISCLOSURE.
(a) None of the Transactional Agreements contains or will contain any
untrue statement of fact.
(b) Except as set forth in Part 2.31 of the Disclosure Schedule,
there is no fact within the Knowledge of the Selling Stockholders (other than
publicly known facts relating exclusively to political or economic matters of
general applicability that will adversely affect all Comparable Entities) that
(i) may have a material adverse effect on the Companies' businesses, condition,
assets, liabilities, operations, financial performance, net income or prospects
(or on any aspect or portion thereof) or on the ability of Intec or the Selling
Stockholders to comply with or perform any covenant or obligation under any of
the Transactional Agreements, or (ii) may have the effect of preventing,
delaying, making illegal or otherwise interfering with any of the Transactions.
(c) All of the information set forth in the Disclosure Schedule, and
all other information regarding the respective Companies and their business,
condition, assets, liabilities, operations, financial performance, net income
and prospects that has been furnished to the Purchaser or any of its
Representatives by or on behalf of the Companies or any of the Companies'
Representatives, is accurate and complete in all respects.
(d) The Selling Stockholders have provided the Purchaser and the
Purchaser's Representatives with full and complete access to all of the
Companies' records and other documents and data.
2.32 POOLING OF INTERESTS. Neither the Companies nor any of their
respective directors, officers or shareholders has taken any action which could
reasonably be expected to preclude the Purchaser's ability to account for the
sale and purchase of the Shares as a Pooling of Interests.
SECTION 3. REPRESENTATIONS AND WARRANTIES OF PURCHASER
The Purchaser represents and warrants, to and for the benefit of the
Selling Stockholders, as of the date of this Agreement, as follows:
3.1 AUTHORIZATION. All shareholder and corporate action necessary to
authorize the execution and delivery by the Purchaser of this Agreement and the
other documents and instruments to be delivered by the Purchaser hereunder, and
to authorize the performance by the Purchaser of its obligations hereunder and
thereunder, has been duly taken.
3.2 AUTHORITY; BINDING NATURE OF AGREEMENT.
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(a) The Purchaser has the absolute and unrestricted right, power and
authority to enter into and perform its obligations under this Agreement, the
execution, delivery and performance of this Agreement by the Purchaser has been
duly authorized by all necessary action on the part of the Purchaser and its
board of directors, and this Agreement constitutes the legal, valid and binding
obligation of the Purchaser, enforceable against the Purchaser in accordance
with its terms.
(b) To the best of the Knowledge of the officers of Purchaser
executing this Agreement on behalf of Purchaser, such officers do not have a
conflict of interest with the Purchaser within the meaning of Section 2:256 of
the Netherlands Civil Code with respect to the execution of this Agreement. To
the best of the Knowledge of the officers of Purchaser executing this Agreement
on behalf of Purchaser, none of the terms of this Agreement infringe on the
terms of, or constitute a default under, any agreement or instrument to which
Purchaser is a party, which infringement or default would materially impair the
ability of Purchaser to perform its obligations under this Agreement.
3.3 BROKERS. The Purchaser has not agreed or become obligated to pay, and
has not taken any action that might result in any Person claiming to be entitled
to receive, any brokerage commission, finder's fee or similar commission or fee
in connection with any of the Transactions.
3.4 CONSIDERATION SHARES
(a) The Consideration Shares have been duly authorized and validly
issued by the Purchaser and are fully paid and nonassessable; PROVIDED, HOWEVER,
that the Consideration Shares may be subject to restrictions on transfer under
applicable securities laws as set forth herein or as otherwise required by such
laws at the time a transfer is proposed.
(b) The issue of the Consideration Shares by the Purchaser to the
Selling Stockholders will be made at Closing in compliance with all applicable
laws and any contractual restrictions on the transferability of such Stock,
assuming the accuracy of the representations and warranties of the Selling
Stockholders contained in SECTION 2.29, and assuming filing of any required
post-closing notice filings. Purchaser shall make any required post closing
notice filings, or shall cause such filings to be made.
(c) The Purchaser has materially complied with its obligations under
the United States federal securities laws with regard to the filing of its
annual and quarterly reports, and other periodic filings with the SEC.
3.5 POOLING OF INTERESTS To the Purchaser's knowledge, neither the
Purchaser, its Affiliates nor any of its directors, officers or shareholders has
taken any action which could reasonably be expected to preclude the Purchaser's
ability to account for the sale and purchase of the Shares as a Pooling of
Interests.
3.6 NON-CONTRAVENTION; CONSENTS.
(a) Neither the execution and delivery of any of the Transactional
Agreements, nor the consummation or performance of any of the Transactions, will
directly or indirectly (with or without notice or, with respect to deadlines
under any Legal Requirements or under any contracts of the Companies, lapse of
time):
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(i) contravene, conflict with or result in a violation of any of
the provisions of Purchaser's charter documents or any resolution adopted by
Purchaser's shareholders, Purchaser's supervisory board or any committee of
Purchaser's board of directors; or
(ii) contravene, conflict with or result in a violation of, or
give any Governmental Body or other Person the right to challenge any of the
Transactions or to exercise any remedy or obtain any relief under, any Legal
Requirement or any Order to which Purchaser is subject.
(b) Except in connection with the approval of the Supervisory Board
of Purchaser described in Section 1.3(b)(xvi), the Purchaser was not required to
make any filing with or give any notice to, or to obtain any Consent from, any
Person in connection with the execution and delivery of any of the Transactional
Agreements or the consummation or performance of any of the Transactions.
SECTION 4. POST-CLOSING COVENANTS OF SELLING STOCKHOLDERS
4.1 DELIVERY OF DOCUMENTS. After Closing, each of the Selling Stockholders
shall deliver to the Purchaser such other documents and shall take such actions
as the Purchaser may reasonably and in good faith request for the purpose of
ensuring that the Purchaser is vested with complete beneficial ownership and
control of the Shares and facilitating the consummation or performance of any of
the Transactions.
4.2 TRANSFER RESTRICTIONS. The Selling Stockholders acknowledge and agree
that the Consideration Shares are subject to restrictions on transfer as set
forth in this SECTION 4.2.
(a) Each Selling Stockholder agrees not to make any disposition of
all or any portion of the Consideration Shares unless and until:
(i) There is then in effect a registration statement under the
Securities Act covering such proposed disposition and such disposition is made
in accordance with such registration statement; or
(ii) (A) The transferee has agreed in writing to be bound by the
terms of this Agreement, (B) such Selling Stockholder shall have notified the
Purchaser of the proposed disposition and shall have furnished the Purchaser
with a detailed statement of the circumstances surrounding the proposed
disposition, and (C) if reasonably requested by the Purchaser, such Selling
Stockholder shall have furnished the Purchaser with an opinion of counsel,
reasonably satisfactory to the Purchaser, that such disposition will not require
registration of such shares under the Securities Act. It is agreed that the
Purchaser will not require opinions of counsel for transactions made pursuant to
Rule 144 and/or Rule 145 of the Securities Act except in unusual circumstances.
(iii) Notwithstanding the provisions of paragraphs (i) and (ii)
above, no such registration statement or opinion of counsel shall be necessary
for a transfer by a Selling Stockholder which is (A) a partnership to its
partners or former partners in accordance with partnership interests, (B) a
corporation to its shareholders in accordance with their interest in the
corporation, (C) a limited liability company to its members or former members in
accordance with their interest in the limited liability company, or (D) to the
Selling Stockholder's family member or trust exclusively for the benefit of an
individual Selling Stockholder; PROVIDED that in each case the transferee will
be subject to the terms of this Agreement to the same extent as if he were an
original Selling Stockholder hereunder.
(b) Each certificate representing the Consideration Shares shall
(unless otherwise permitted by the provisions of the Agreement) be stamped or
otherwise imprinted with a legend substan-
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tially similar to one or both of the following (in addition to any legend
required under applicable state securities laws):
"THE SECURITIES REPRESENTED HEREBY HAVE NOT BEEN REGISTERED UNDER
THE SECURITIES ACT OF 1933 (THE "ACT") AND MAY NOT BE OFFERED, SOLD OR
OTHERWISE TRANSFERRED, ASSIGNED, PLEDGED OR HYPOTHECATED UNLESS AND
UNTIL REGISTERED UNDER THE ACT OR UNLESS THE COMPANY HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO THE COMPANY AND ITS COUNSEL THAT
SUCH REGISTRATION IS NOT REQUIRED."
"THE SECURITIES REPRESENTED HEREBY HAVE BEEN ACQUIRED PURSUANT TO
REGULATION S OF THE SECURITIES ACT OF 1933, AS AMENDED (THE "ACT"),
AND MAY NOT BE SOLD, MORTGAGED, PLEDGED, HYPOTHECATED OR OTHERWISE
TRANSFERRED EXCEPT IN ACCORDANCE THEREWITH, PURSUANT TO A REGISTRATION
UNDER THE ACT OR PURSUANT TO AN AVAILABLE EXEMPTION FROM REGISTRATION.
THE ISSUER OF THESE SECURITIES MAY REQUIRE AN OPINION OF COUNSEL IN
FORM AND SUBSTANCE REASONABLY SATISFACTORY TO THE ISSUER TO THE EFFECT
THAT ANY PROPOSED TRANSFER OR RESALE IS IN COMPLIANCE WITH THE ACT AND
ANY APPLICABLE STATE SECURITIES LAWS. IN ADDITION, NO HEDGING
TRANSACTION MAY BE CONDUCTED WITH RESPECT TO THESE SECURITIES UNLESS
SUCH TRANSACTION IS IN COMPLIANCE WITH THE ACT."
(c) The Purchaser agrees to procure the reissuance by the Purchaser
of unlegended certificates at the request of any holder thereof if the holder
shall have obtained an opinion of counsel (which counsel may be counsel to the
Purchaser) reasonably acceptable to the Purchaser and the Purchaser to the
effect that the securities proposed to be disposed of may lawfully be so
disposed of without registration, qualification or legend.
(d) Any legend endorsed on an instrument pursuant to applicable state
securities laws and the stop-transfer instructions with respect to such
securities shall be removed upon receipt by the Purchaser of an order of the
appropriate blue sky authority authorizing such removal
SECTION 5. POST-CLOSING COVENANTS OF PURCHASER
5.1 GOVERNMENTAL FILINGS. As promptly as possible after the date of this
Agreement, the Purchaser shall file any notification forms required to be filed
by the Purchaser under applicable law with respect to the Transactions.
5.2 REGISTRATION OF CONSIDERATION SHARES.
(a) REGISTRABLE SECURITIES. For purposes hereof, "REGISTRABLE
SECURITIES" shall mean the Consideration Shares owned beneficially and of record
by the Selling Stockholders as of the Closing Date and any securities issued or
issuable with respect to the Consideration Shares by way of a conversion,
exchange, stock dividend, split in connection with a combination of shares,
recapitalization, merger, consolidation, reorganization or otherwise. For the
avoidance of doubt, it is acknowledged and agreed that each of the Consideration
Shares shall cease to be considered to be a "Registrable Security" when (i) it
has been effectively registered under the Securities Act or (ii) it is eligible
to be sold or distributed pursuant to Rule 144 under the Securities Act, as
amended. "REGISTRATION EXPENSES" shall mean all
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expenses incident to MTNV's compliance with SECTION 5.2(b) hereof, including,
without limitation, all registration, qualification and filing fees, printing
expenses, fees and disbursements of legal counsel to MTNV, Blue Sky fees and
expenses, and the expense of any special audits incident to or required by any
such registration but excluding Selling Expenses. "SELLING EXPENSES" shall mean
all discounts, selling commissions, share transfer taxes and fees and
disbursements of legal and other advisors to the Selling Stockholders.
(b) DEMAND REGISTRATION.
(i) On or after November 19, 2000, all of the Selling
Stockholders together jointly may notify MTNV that they intend to offer or cause
to be offered for public sale all of the Registrable Securities (a "DEMAND
REGISTRATION"). Upon receipt of the notice referred to in the preceding sentence
(the date of receipt being the "NOTIFICATION DATE"), MTNV will use commercially
reasonable efforts to cause such Registrable Securities to be registered under
the Securities Act, pursuant to a registration statement (the "REGISTRATION
STATEMENT") on Form S-3 (or any successor form) (but in no event shall MNTV be
required to cause such Registrable Securities to be registered sooner than the
date three business days after the date of public release of the first
post-Closing set of quarterly earnings of MNTV that includes at least 30 days of
combined operations of MTNV and Intec), and to keep such Registration Statement
effective (subject to SECTION 5.2(d) hereof) until the earlier of: (1) the first
anniversary of the Closing Date, or (2) the date on which all of the Registrable
Securities registered thereunder are sold or (3) the date on which Registrable
Securities cease to be Registrable Securities. The Selling Stockholders jointly
shall be entitled to one Demand Registration as provided herein. Notwithstanding
the foregoing, MTNV may postpone its obligation to use commercially reasonable
efforts to cause such Registrable Securities to be registered pursuant to a
Registration Statement to be declared effective by the SEC for a reasonable
period of time not to exceed 120 days from the Notification Date, if the
Supervisory Board of MTNV determines in good faith that (1) such registration
may have a material adverse effect on any plan or proposal by MTNV or any of its
affiliates (as defined under the Securities Act) with respect to any financing,
acquisition, sale, recapitalization, pending registrations of securities,
reorganization or other material transaction, or (2) MTNV is in possession of
material non-public information that, if publicly disclosed, could result in a
material disruption of a major corporate development or transaction then pending
or in other material adverse consequences to MTNV or any of its affiliates. MTNV
shall provide prompt written notification to the Selling Stockholders of its
exercise of such right to delay registration, and the duration of the delay.
(ii) The Selling Stockholders shall not effect the distribution
of the Registrable Securities by means of an underwritten offering.
(iii) All Registration Expenses shall be borne solely by MTNV.
All Selling Expenses shall be borne solely by the Selling Stockholders.
(c) REGISTRATION PROCEDURES.
(i) With respect to the registration obligation set forth in
SECTION 5.2 hereof, for the period of effectiveness of the Registration
Statement, MTNV will keep the Selling Stockholders advised in writing as to the
initiation of such filing and effectiveness of such Registration Statement. MTNV
will:
(1) furnish such number of copies of prospectuses and other
documents incident thereto as the Selling Stockholders from time to time may
reasonably request;
(2) use commercially reasonable efforts to register and
qualify the Registrable Securities covered by the Registration Statement under
such other U.S. securities or Blue Sky
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laws of such jurisdictions as shall be reasonably requested by the Selling
Stockholders, provided that MTNV shall not be required in connection therewith
or as a condition thereto to qualify to do business, to subject itself to
taxation in any jurisdiction where it is not so subject, or to file a general
consent to service of process in any such state or jurisdiction; and
(3) prepare and file with the SEC such amendments and
post-effective supplements to such Registration Statement as may be necessary to
keep such Registration Statement effective and current and to comply with the
provisions of the Securities Act or other applicable U.S. securities laws with
respect to the sale or other disposition of all shares covered by such
Registration Statement, including such amendments and supplements as may be
necessary to reflect the intended method of disposition from time to time of the
Registrable Securities;
(4) promptly notify each Selling Stockholder (a) when the
Registration Statement or post-effective amendment has been filed and, with
respect to the Registration Statement or any post-effective amendment thereof,
when the same has become effective, (b) of any request by any applicable
securities authority for amendments of or supplements to the Registration
Statement or for additional information, (c) of the issuance by any applicable
securities authority of any stop order suspending the effectiveness of the
Registration Statement or the initiation of any proceedings for that purpose,
(d) of the receipt by MTNV of any notification with respect to the suspension of
the qualification of the Registrable Securities for sale in any jurisdiction or
the initiation or threatening of any proceedings for such purpose, and (e) of
the happening of any event which makes any statement of a material fact made in
the Registration Statement, or any document incorporated therein by reference
untrue or which requires the making of any changes in the Registration Statement
or any document incorporated therein by reference in order to make the statement
of a material fact therein not misleading;
(5) use its commercially reasonable efforts to obtain the
withdrawal of any order suspending the effectiveness of the Registration
Statement;
(6) upon the occurrence of any event contemplated by clause
(4) above, prepare a supplement or post-effective amendment to the Registration
Statement or any document incorporated therein by reference or file any other
required document so that, as thereafter delivered to the purchasers of the
Registrable Securities, the Registration Statement will not contain an untrue
statement of a material fact or omit to state any material fact necessary to
make the statements therein not misleading.
(ii) The Selling Stockholders shall not (until further notice)
effect sales of the shares covered by the registration statement after receipt
of notice from the MTNV to suspend sales in order to permit MTNV to correct or
update the Registration Statement or documents incorporated therein by
reference.
(iii) The Selling Stockholders shall provide (in writing and
signed by the Selling Stockholders and stated to be specifically for use in the
Registration Statement, prospectus or other document incident thereto) all such
information and materials regarding the Selling Stockholders and the plan of
distribution of the Registrable Securities and take all such action as may be
required in order to permit MTNV to comply with all applicable requirements of
the SEC and any applicable requirements of state securities laws.
(d) BLACK-OUT PERIODS FOR REGISTRATION STATEMENT.
(i) Notwithstanding anything to the contrary in this Agreement,
commencing thirty (30) days after the effectiveness of the Registration
Statement, MTNV shall have the right, not more than three times, to direct the
Selling Stockholders to suspend sales of Registrable Securities regis-
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tered thereunder for a period not to exceed twenty (20) days, if the Supervisory
Board of MTNV determines in good faith that (1) such sales may have a material
adverse effect on any plan or proposal by MTNV or any of its affiliates (as
defined under the Securities Act) with respect to any financing, acquisition,
sale, recapitalization, reorganization or other material transaction, (2) MTNV
is in possession of material non-public information that, if publicly disclosed,
could result in a material disruption of a major corporate development or
transaction then pending or in other material adverse consequences to MTNV or
any of its affiliates or (3) such sale would render MTNV unable to comply with
applicable law (including without limitation the Securities Act or the United
States Securities Exchange Act of 1934, as amended) or U.S. Securities Exchange
Commission requirements or regulations.
(ii) In the event that MTNV exercises its right pursuant to
SECTION 5.4(d)(i) hereof, MTNV shall give written notice (a "SUSPENSION NOTICE")
to the Selling Stockholders to suspend sales of the Registrable Securities. Upon
receipt of such notice, the Selling Stockholders shall not effect any sales of
the Registrable Securities pursuant to such Registration Statement for the
period designated in the notice. If so directed by MTNV, the Selling
Stockholders will deliver to MTNV all copies of the prospectus covering the
Registrable Securities held by them at the time of receipt of the Suspension
Notice.
(e) SPECIAL INDEMNIFICATION OBLIGATION.
(i) In the event of any registration of the Registrable
Securities under the Securities Act pursuant to this SECTION 5.2, then to the
extent permitted by law, the Selling Stockholders shall jointly and severally
indemnify and hold harmless the Indemnitees against any Damages to which such
Indemnitees may become subject under the Securities Act, the Exchange Act, state
securities laws or otherwise, to the extent that such Damages arise out of or
are based upon any untrue statement or alleged untrue statement of a material
fact contained in such Registration Statement, or any amendment or supplement to
such Registration Statement, or arise out of or are based upon any omission or
alleged omission to state a material fact required to be stated therein or
necessary to make the statements therein not misleading to the extent that such
untrue or alleged untrue statement is contained in, or such omission or alleged
omission is required to be contained in, any information furnished in writing by
or on behalf of the Selling Stockholders for use in the preparation of such
Registration Statement which is relied upon by MTNV in conformity therewith.
(ii) In the event of any registration of any of the Registrable
Securities under the Securities Act pursuant to this SECTION 5.2, then to the
extent permitted by law MTNV shall indemnify and hold harmless the Selling
Stockholders against Damages to which such Selling Stockholders may become
subject under the Securities Act, Exchange Act, state securities laws or
otherwise, to the extent that such Damages arise out of or are based upon any
untrue statement or alleged untrue statement of any material fact contained in
such Registration Statement, or any amendment or supplement to such Registration
Statement, or arise out of or are based upon the omission or alleged omission to
state a material fact required to be stated therein or necessary to make the
statements therein not misleading; PROVIDED, HOWEVER, that MTNV shall not be
liable in any such case to the extent that any such Damages arise out of or are
based upon any untrue statement or omission made in such Registration Statement,
or any such amendment or supplement, in reliance upon and in conformity with
information furnished to MTNV, by or on behalf of the Selling Stockholders for
use in the preparation thereof.
(iii) The aforesaid indemnity obligations of MTNV and the Selling
Stockholders shall remain in full force and effect following any termination of
this Agreement or any sale or transfer of the Registrable Securities by the
Selling Stockholders pursuant to this Agreement.
(iv) If the indemnification provided for in this SECTION 5.2
shall for any reason be held by a court to be unavailable to an Indemnified
Party in respect of any Damages, then, in lieu
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of the amount paid or payable pursuant to such indemnification, the Indemnified
Party and the Indemnifying Party shall contribute to the aggregate Damages
(including legal or other expenses reasonably incurred in connection with
investigating the same) in such proportion as is appropriate to reflect the
relative fault of the Indemnifying Party and Indemnified Party which resulted in
such Damages, as well as any other relevant equitable considerations.
Notwithstanding the foregoing, no party guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the Securities Act) shall be entitled to
contribution from any party who was not guilty of such fraudulent
misrepresentation.
(f) TERMINATION OF REGISTRATION RIGHTS. Notwithstanding the
foregoing, the obligations imposed on MTNV pursuant to this SECTION 5.2 shall
terminate upon the earlier of (i) the date that all Registrable Securities have
been sold pursuant to the Registration Statement or (ii) the date that the
Selling Stockholders are able to qualify any of the Registrable Securities for
sale under Rule 144 under the Securities Act, or a successor rule.
SECTION 6. [RESERVED]
SECTION 7. [RESERVED]
SECTION 8. [RESERVED]
SECTION 9. [RESERVED]
SECTION 10. INDEMNIFICATION, ETC.
10.1 SURVIVAL OF REPRESENTATIONS AND COVENANTS.
(a) The representations, warranties, covenants and obligations of
each party shall survive (without limitation): (i) the Closing and the sale of
the Shares to the Purchaser; (ii) any sale or other disposition of any or all of
the Shares by the Purchaser; and (iii) any Acquisition Transaction effected by
or otherwise involving the Purchaser or Intec. Except as provided in SECTION
10.1(b) and except for SECTIONS 10.3 THROUGH 10.12 and SECTION 11 hereof, all of
said representations, warranties, covenants and obligations shall remain in full
force and effect and shall survive for a period from the date hereof until the
earlier of the date that the first post-Closing audit of MTNV that includes
Intec is released to the public (the "AUDIT DATE") or November 17, 2001 (the
earlier date being the "ESCROW TERMINATION DATE").
(b) The representations and warranties of the Selling Stockholders
contained in SECTION 2.29, and the covenants and obligations of the Purchaser
and the Selling Stockholders pursuant to SECTIONS 4.1, 4.2, 5.1, 5.2, hereof
(and the indemnification obligations set forth in SECTION 10.2 relating
thereto), shall survive for a period of three (3) years from the Closing Date.
(c) The representations, warranties, covenants and obligations of the
Selling Stockholders, and the rights and remedies that may be exercised by the
Indemnitees, shall not be limited or otherwise affected by or as a result of any
information furnished to, or any investigation made by or Knowledge of, any of
the Indemnitees or any of their Representatives.
(d) For purposes of this Agreement, each statement or other item of
information set forth in the Disclosure Schedule or in any update to the
Disclosure Schedule shall be deemed to be a representation and warranty made by
the Selling Stockholders in this Agreement.
(e) Notwithstanding anything to the contrary herein, any claim for
indemnification under this Agreement which is made in good faith and in writing
prior to the expiration of such claim on
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the dates set forth in SECTIONS 10.1(a) AND (b), as applicable, shall survive
such expiration until mutually resolved or otherwise determined hereunder, as
applicable, and the expiration date of such claims for all purposes hereunder
shall automatically be extended with respect to such claim (but not any other
claims) until such claim is so mutually resolved or otherwise determined
hereunder.
10.2 INDEMNIFICATION BY SELLING STOCKHOLDERS.
(a) The Selling Stockholders shall hold harmless and indemnify each
of the Indemnitees from and against, and shall compensate and reimburse each of
the Indemnitees for, any Damages which are suffered or incurred by any of the
Indemnitees or to which any of the Indemnitees may otherwise become subject at
any time (regardless of whether or not such Damages relate to any third-party
claim) and which arise from or as a result of, or are connected with:
(i) any Breach of any representation or warranty made by the
Selling Stockholders in this Agreement;
(ii) any Breach of any representation, warranty, statement,
information or provision contained in the Disclosure Schedule or in any other
document delivered or otherwise made available to the Purchaser or any of its
Representatives;
(iii) any Breach of any covenant or obligation of the Selling
Stockholders;
(iv) any Liability to which Intec or any of the other Indemnitees
may become subject and that arises directly or indirectly from or relates
directly or indirectly to (A) any product manufactured or sold, or any service
performed, by or on behalf of Intec on or at any time prior to the Closing Date,
but not including any products sold by Intec in the same condition in which such
product was received from Purchaser, (B) the presence of any Hazardous Material
at any site owned, leased, occupied or controlled by any of Intec on or at any
time prior to the Closing Date, or (C) the generation, manufacture, production,
transportation, importation, use, treatment, refinement, processing, handling,
storage, discharge, release or disposal of any Hazardous Material (whether
lawfully or unlawfully) by or on behalf of Intec on or at any time prior to the
Closing Date;
(v) any matter identified or referred to in Part 2.15
(Compliance with Legal Requirements) or Part 2.24 (Proceedings; Orders) of the
Disclosure Schedule; or
(vi) any Proceeding relating directly or indirectly to any
Breach, alleged Breach, Liability or matter of the type referred to in clause
"(i)," "(ii)," "(iii)," "(iv)," or "(v)" above (including any Proceeding
commenced by any Indemnitee for the purpose of enforcing any of its rights under
this SECTION 10).
(b) The Selling Stockholders acknowledge and agree that, if there is
any Breach of any representation, warranty or other provision relating to the
Companies or the Companies' businesses, condition, assets, liabilities,
operations, financial performance, net income or prospects (or any aspect or
portion thereof), or if Intec becomes subject to any Liability of the type
referred to in clause "(iv)" of SECTION 10.2(a), then the Purchaser itself shall
be deemed, by virtue of its ownership of the capital stock of Intec, to have
incurred Damages as a result of such Breach or Liability. Nothing contained in
this SECTION 10.2(b) shall have the effect of (i) limiting the circumstances
under which the Purchaser may otherwise be deemed to have incurred Damages for
purposes of this Agreement, (ii) limiting the other types of Damages that the
Purchaser may be deemed to have incurred (whether in connection with any such
Breach or Liability or otherwise), or (iii) limiting the rights of Intec or any
of the other Indemnitees under this SECTION 10.2.
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10.3 THRESHOLD AND MAXIMUM AMOUNT OF INDEMNIFICATION AND PAYMENT
OBLIGATION.
(a) Except as set forth in SECTION 10.3(b) hereof, the Selling
Stockholders shall not be required to make any payment for any Breach of any of
their representations and warranties under this Agreement until such time as the
total amount of all Damages (including the Damages arising from such Breach and
all other Damages arising from any other Breaches of any representations or
warranties under this Agreement) that have been directly or indirectly suffered
or incurred by any one or more of the Indemnitees, or to which any one or more
of the Indemnitees has or have otherwise become subject, exceeds Seventy-Five
Thousand United States Dollars (US$75,000) in the aggregate (the
"INDEMNIFICATION THRESHOLD"). At such time as the total amount of such Damages
exceeds the Indemnification Threshold in the aggregate, the Indemnitees shall be
entitled to be indemnified against the full amount of such Damages (and not
merely the portion of such Damages exceeding the Indemnification Threshold,
PROVIDED, HOWEVER, that the obligations of the Selling Stockholders to defend,
indemnify and hold harmless and pay the Indemnitees shall terminate when the
Selling Stockholders shall have paid an aggregate of Four Million Three Hundred
Forty Thousand Five Hundred Fifty United States Dollars (US$4,340,550) (the
"CAP") whether paid pursuant to this Agreement, at common law or in equity, in
respect of Damages arising under this Agreement (except as set forth in SECTION
10.3(b) hereof).
(b) Notwithstanding SECTION 10.3(a) hereof, in the case of (i) any
willful Breach of this Agreement by any or all of the Selling Stockholders or
(ii) any Breach of SECTIONS 2.29, 4.2, 5.2 by any or all of the Selling
Stockholders, then: (x) the Cap shall be deemed to be Eight Million Six Hundred
Eighty One Thousand One Hundred United States Dollars (US$8,681,100) and (y) the
Selling Stockholders shall be required to make payment for the Breaches set
forth in SECTIONS 10.3(b)(i) and 10.3(b)(ii) on a dollar-for-dollar basis and
claims therefor shall not be subject to the Indemnification Threshold.
Notwithstanding SECTION 10.3(a) hereof, the Selling Stockholders shall be
required to make payment for Breach of SECTIONS 10.12 (including, without
limitation, Section 4.2 of the Escrow Agreement), 11.3 and 11.4 on a
dollar-for-dollar basis and claims therefor shall not be subject to the
Indemnification Threshold.
10.4 RIGHT TO REQUIRE CURE OF BREACH. Without limiting the generality of
anything contained in SECTION 10.2 but subject to SECTION 10.3, if there is any
Breach of any representation or warranty made by the Selling Stockholders, then
the Selling Stockholders, jointly and severally, shall be obligated to pay such
amounts to Intec and take such other actions as the Purchaser may in good faith
request for the purpose of causing such Breach to be corrected, cured and
eliminated in all respects (at no cost to Intec or the Purchaser).
10.5 NO CONTRIBUTION. The Selling Stockholders waive, and acknowledge and
agree that they shall not have and shall not exercise or assert or attempt to
exercise or assert, any right of contribution or right of indemnity or any other
right or remedy against the Companies in connection with any indemnification
obligation or any other Liability to which the Selling Stockholders may become
subject under any of the Transactional Agreements or otherwise in connection
with any of the Transactions.
10.6 INTEREST. Any party that is required to indemnify any other Person
pursuant to this SECTION 10 with respect to any Damages shall also be required
to pay such other Person interest on the amount of such Damages (for the period
commencing as of the date on which such other Person first incurred or otherwise
became subject to such Damages and ending on the date on which the applicable
indemnification payment is made by such party) at such rate as may be prescribed
by the rules of court of Singapore from time to time or, in the event such rate
is no longer prescribed, at the rate of 6% per annum.
10.7 SETOFF. In addition to any rights of setoff or other rights that the
Purchaser or any of the other Indemnitees may have at common law or otherwise,
the Purchaser shall have the right to set off any
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amount that may be owed to any Indemnitee under this SECTION 10 against any
amount otherwise payable by any Indemnitee to the Selling Stockholders.
10.8 REMEDIES. The exercise by any Person of any of its rights under this
SECTION 10 shall not be deemed to be an election of remedies and shall not be
deemed to prejudice, or to constitute or operate as a waiver of, any other right
or remedy that such Person may be entitled to exercise (whether under this
Agreement, under any other Contract, under any statute, rule or other Legal
Requirement, at common law, in equity or otherwise); PROVIDED, HOWEVER, that the
aggregate limit of the Selling Stockholders' obligations to pay Damages arising
under or relating to this Agreement, whether paid pursuant to this Agreement, at
common law or in equity, shall be as prescribed in SECTIONS 10.3(a) and (b), as
the case may be; and the aggregate limit of the Purchaser's obligation to pay
Damages arising under or relating to this Agreement, whether paid pursuant to
this Agreement, at common law or in equity, shall be equal to the amount of
Eight Million Six Hundred Eighty One Thousand One Hundred United States Dollars
(US$8,681,100).
10.9 DEFENSE OF THIRD PARTY CLAIMS. In the event of the assertion or
commencement by any Person of any claim or Proceeding (whether against Intec,
against any other Indemnitee or against any other Person) with respect to which
the Selling Stockholders may become obligated to indemnify, hold harmless,
compensate or reimburse any Indemnitee pursuant to this SECTION 10, the
Purchaser shall have the right, at its election, to assume the defense of any
such claim or Proceeding on its own. If the Purchaser so proceeds with the
defense of any such claim or Proceeding on its own:
(a) all expenses relating to the defense of such claim or Proceeding
(whether or not incurred by the Purchaser) shall be borne and paid exclusively
by the Selling Stockholders;
(b) the Selling Stockholders shall make available to the Purchaser
any documents and materials in the possession or control of the Selling
Stockholders that may be necessary to the defense of such claim or Proceeding;
(c) the Purchaser shall keep the Selling Stockholders informed of all
material developments and events relating to such claim or Proceeding; and
(d) the Purchaser shall have the right to settle, adjust or
compromise such claim or Proceeding with the consent of the Selling
Stockholders; PROVIDED, HOWEVER, that the Selling Stockholders shall not
unreasonably withhold such consent.
10.10 EXERCISE OF REMEDIES BY INDEMNITEES OTHER THAN PURCHASER. No
Indemnitee (other than the Purchaser or any successor thereto or assign thereof)
shall be permitted to assert any indemnification claim or exercise any other
remedy under this Agreement unless the Purchaser (or any successor thereto or
assign thereof) shall have consented to the assertion of such indemnification
claim or the exercise of such other remedy.
10.11 CLAIMS AGAINST ESCROWED SHARES.
(a) Subject to the provisions of SECTION 10.12 below, all
indemnification claims by Indemnitees which become Payable Claims shall be
satisfied initially out of the Escrow Fund (as defined in the Escrow Agreement).
(b) For purposes hereof, any claim for indemnification by any
Indemnitee shall be deemed to have been "DEFINITIVELY RESOLVED" when any of the
following events has occurred:
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(i) a claim is settled by mutual written agreement of the
Selling Stockholders and the Purchaser;
(ii) a final judgment, order or award of a court of competent
jurisdiction or arbitrator deciding such claim has been rendered, as evidenced
by a certified copy of such judgment, order or award, provided that such
judgment, order or award is not appealable or the time for making an appeal has
expired;
(iii) the Selling Stockholders have not jointly responded to a
written notice from the Purchaser or an Indemnitee detailing such claim (a
"CLAIM NOTICE"), within 60 days of delivery of such notice.
(c) For purposes hereof, any indemnity claim for which a Claim Notice
has been submitted but which has not been Definitively Resolved is referred to
herein as a "PENDING CLAIM." For purposes hereof, any indemnity claim that has
been Definitively Resolved is referred to herein as A "SETTLED CLAIM." For
purposes hereof, a "PAYABLE CLAIM" shall mean any one of the following: (i) if
the Settled Claim is a Zero Threshold Claim, the full amount of such claim shall
be treated as a Payable Claim; and (ii) if the Settled Claim is a Non-Zero
Threshold Claim, such claim shall be treated as a Payable Claim only in the
event and to the extent that the amount of such claim, together with the
accumulated amount of all previous Settled Claims, that were Non-Zero Threshold
Claims, exceeds the Indemnification Threshold.
10.12 RELEASE OF ESCROWED SHARES.
(a) All Escrowed Shares, or the proceeds thereof, deposited by MTNV
in escrow pursuant to SECTION 1.2(c) shall be held in escrow pending further
disposition pursuant to Section 4.2 of the Escrow Agreement, incorporated herein
by reference. The Escrowed Shares and the proceeds thereof shall be held in
escrow until the Escrow Termination Date; provided, that if any Pending Claims
against the Selling Stockholders exist on the Escrow Termination Date, then that
number of Escrowed Shares (rounded up to the nearest whole number), as is
determined by dividing the amount of such Pending Claim by the Closing Date
Price, shall be held in escrow until such Pending Claims have been Definitively
Resolved.
(b) For purposes of Netherlands law, the legal basis (TITEL) for any
distribution of the Escrowed Shares, or the proceeds thereof, to Purchaser
pursuant to this Agreement and/or the Escrow Agreement shall be deemed to be
based on a partial dissolution of this Agreement as a preservation of a
defective performance under this Agreement against a reduction of the purchase
price (BEHOUD VAN EEN ONDEUGDELIJKE PRESTATIE TEGEN VERMINDERING VAN DE
KOOPPRIJS) pursuant to Article 270 of Book 6 of the Netherlands Civil Code
("NCC") and the obligation to undo (ONGEDAANMAKINGSVERPLICHTING) of the Selling
Stockholders pursuant to this Agreement and Article 271 of Book 6 of the NCC.
SECTION 11. MISCELLANEOUS PROVISIONS
27.
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11.1 JOINT AND SEVERAL LIABILITY. Each Selling Stockholder agrees that such
Selling Stockholder shall be jointly and severally liable with each of the other
Selling Stockholders for the due and timely compliance with and performance of
each of the covenants and obligations of such other Selling Stockholders set
forth in this Agreement.
11.2 FURTHER ASSURANCES. Each party hereto shall execute and/or cause to be
delivered to each other party hereto such instruments and other documents, and
shall take such other actions, as such other party may reasonably request (prior
to, at or after the Closing) for the purpose of carrying out or evidencing any
of the Transactions.
11.3 FEES AND EXPENSES. The parties shall each bear and pay all of their
own fees, costs and expenses, including all legal fees and expenses payable to
their respective legal, tax and accounting advisors ("EXPENSES") that have been
incurred or that are in the future incurred by them in connection with the
negotiation, consummation and performance of the Transactions and all
certificates, opinions and other instruments and documents delivered or to be
delivered in connection with the Transactions. Stamp duty payable on the
transfer of the Shares shall be borne by the Purchaser.
11.4 ATTORNEYS' FEES. If any legal action or other legal proceeding
relating to any of the Transactional Agreements or the enforcement of any
provision of any of the Transactional Agreements is brought against any party
hereto, the prevailing party shall be entitled to recover reasonable attorneys'
fees, costs and disbursements (in addition to any other relief to which the
prevailing party may be entitled).
11.5 NOTICES. Any notice or other communication required or permitted to be
delivered to any party under this Agreement shall be in writing and shall be
deemed properly delivered, given and received when delivered (by hand, by
registered mail, by courier or express delivery service or by facsimile) to the
address or facsimile number set forth beneath the name of such party below (or
to such other address or facsimile number as such party shall have specified in
a written notice given to the other parties hereto):
if to any of the Selling Stockholders, other than Elite:
Cher Lew Hiong James
Chia Chiap Heng Basil
Cher Lew Kwang Francis
c/o Intec Technology (S) Pte. Ltd.
12 Little Road #08-01/02
Lian Cheong Industrial Building
Singapore 536986
Telephone: +65 289-0511
Facsimile: +65 289-0522
WITH COPIES TO:
Drew & Napier
20 Raffles Place #17-00
Ocean Towers
Singapore 048620
Telephone: +65 531-2238
Facsimile: +65 535-4864
Attention: David Ang/Andrew Ang
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if to Elite:
Elite Star Enterprises Pte. Ltd.
61 South Bridge Road
Boon Building #04-00
Singapore 058691
Telephone: +65 535-5233
Facsimile: +65 533-0308
Attention: Tay Siong Suanh
WITH COPIES TO:
Drew & Napier
20 Raffles Place #17-00
Ocean Towers
Singapore 048620
Telephone: +65 531-2238
Facsimile: +65 535-4864
Attention: David Ang/Andrew Ang
if to the Purchaser:
Metron Technology N.V.
1350 Old Bayshore Hwy.
Suite 360
Burlingame, CA 94010
USA
Attention: Peter V. Leigh
Facsimile: (+1) 650-373-1135
WITH A COPY TO:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306
USA
Attention: Thomas M. Shoesmith
Facsimile: (+1) 650-849-7400
11.6 PUBLICITY. On and at all times after the Closing: (a) no press release
or other publicity concerning any of the Transactions shall be issued or
otherwise disseminated by or on behalf of the Selling Stockholders, and the
Selling Stockholders shall continue to keep the existence and terms of this
Agreement and the other Transactional Agreements strictly confidential; and (b)
each of the Selling Stockholders shall keep strictly confidential, and shall not
use or disclose to any other Person, any non-public document or other
information in its possession that relates directly or indirectly to the
business of Intec, the Purchaser or any affiliate of the Purchaser.
11.7 TIME OF THE ESSENCE. Time is of the essence in this Agreement.
29.
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11.8 HEADINGS. The underlined 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.
11.9 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.
11.10 GOVERNING LAW. This Agreement shall be construed in accordance with,
and governed in all respects by, the laws of Singapore (without giving effect to
principles of conflicts of laws).
11.11 CONSULTATION AND ARBITRATION.
(a) The parties hereto agree that they shall attempt to resolve in
good faith disputes arising in connection with this Agreement. A dispute shall
be referred by a party for consultation between the parties by delivering
written notice to the other party briefly stating the nature of the dispute and
requesting consultation.
(b) In the event that, upon the expiration of thirty (30) calendar
days after receipt of the notice referred to in subsection (a) of this SECTION
11.11, the parties are unable to resolve the matter in dispute, and if the
matter relates to any alleged breach of any representations, warranty,
agreement, covenant or understanding in this Agreement, then the dispute shall
be resolved in the manner provided in subsection (c) of this SECTION 11.11.
(c) Any dispute with respect to an alleged breach of any
representation, warranty, agreement or covenant in this Agreement, including any
dispute relating to the construction or interpretation of the rights and
obligations of any party, which is not resolved through consultation as provided
in subsection (a) and (b) of this SECTION 11.11, shall be resolved by an
arbitration proceeding conducted in accordance with the following:
(i) The arbitration proceeding shall be governed by the rules of
the International Chamber of Commerce;
(ii) The arbitrators shall be qualified by education and training
to pass upon the particular matter to be decided;
(iii) There shall be three (3) arbitrators, one of whom shall be
selected by the party seeking to initiate arbitration, one by the other party
and the third by the two arbitrators so selected;
(iv) The arbitration proceeding shall take place in San
Francisco, California where the arbitration proceeding is initiated by the
Selling Stockholders, and in Singapore where the arbitration proceeding is
initiated by the Purchaser.
(v) The parties shall endeavor to agree in advance as to the
manner in which the arbitration panel shall promptly hear witnesses and
arguments, review documents and otherwise conduct the arbitration proceedings.
Both parties shall receive notice of the subject of the arbitration and the
arbitration shall not be binding on the parties with respect to any matters not
specified in such notice. Should the parties fail to reach an agreement as to
the conduct of such proceedings, the arbitration panel shall formulate its own
procedural rules and promptly commence the arbitration proceedings;
30.
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(vi) The arbitration proceedings shall be conducted as
expeditiously as possible with due consideration for the complexity of the
dispute in question. The arbitration panel shall issue its decision in writing
within fifteen (15) calendar days from the hearing of final arguments by the
parties;
(vii) The arbitration award shall be given in writing and shall
be final and binding on the parties with respect to the subject matter
identified in the notice called for by subsection (c)(v) of this SECTION 11.11,
and not subject to any appeal and shall deal with the question of costs of
arbitration;
(viii) Judgment upon the award may be entered in any court having
jurisdiction, or application may be made to such court for a judicial
recognition of the award or an order of enforcement thereof, as the case may be;
(ix) The parties shall not submit a dispute subject to subsection
(c) of this SECTION 11.11 to any United States, federal, state, local or foreign
court or arbitration association except as may be necessary to enforce the
arbitration procedures of this subsection (c) of this SECTION 11.11 or to
enforce the award of the arbitration panel, and if court proceedings to stay
litigation or compel arbitration under the Federal Arbitration Act (Title 9,
U.S.C.) or similar state or foreign legislation are necessary, the party who
unsuccessfully opposes such proceedings shall pay all associated costs, expenses
and attorneys' fees which are reasonably and actually incurred by the other
party; and
(x) The parties shall keep confidential the arbitration
proceedings and the terms of any arbitration award, except as may be otherwise
required by law.
11.12 SUCCESSORS AND ASSIGNS. This Agreement shall be binding upon: the
Selling Stockholders and their respective personal representatives, executors,
administrators, estates, heirs, successors and permitted assigns (if any); and
the Purchaser and its successors and permitted assigns (if any). This Agreement
shall inure to the benefit of: the Selling Stockholders; the Purchaser; the
other Indemnitees (subject to SECTION 10.10); and the respective successors and
permitted assigns (if any) of the foregoing. Neither this Agreement nor any
rights, duties or obligations hereunder shall be assigned by any party hereto
without the prior written consent of the other and any attempted assignment or
transfer without such prior written consent shall be null and void; PROVIDED,
HOWEVER, that the Purchaser may freely assign any or all of its rights under
this Agreement (including its indemnification rights under SECTION 10), in whole
or in part, to any of its subsidiaries without obtaining the consent or approval
of any other party hereto or of any other Person.
11.13 REMEDIES CUMULATIVE; SPECIFIC PERFORMANCE. The rights and remedies of
the parties hereto shall be cumulative (and not alternative). Each Selling
Stockholder agrees that: (a) in the event of any Breach or threatened Breach by
such Selling Stockholder of any covenant, obligation or other provision set
forth in this Agreement, the Purchaser shall be entitled (in addition to any
other remedy that may be available to it) to (i) a decree or order of specific
performance or mandamus to enforce the observance and performance of such
covenant, obligation or other provision, and (ii) an injunction restraining such
Breach or threatened Breach; and (b) neither the Purchaser nor any other
Indemnitee shall be required to provide any bond or other security in connection
with any such decree, order or injunction or in connection with any related
action or Proceeding.
11.14 WAIVER.
(a) No failure on the part of any Person to exercise any power,
right, privilege or remedy under this Agreement, and no delay on the part of any
Person in exercising any power, right, privilege or remedy under this Agreement,
shall operate as a waiver of such power, right, privilege or
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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 Person 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
Person; and any such waiver shall not be applicable or have any effect except in
the specific instance in which it is given.
11.15 AMENDMENTS. This Agreement may not be amended, modified, altered or
supplemented other than by means of a written instrument duly executed and
delivered by or on behalf of each of the parties to this Agreement.
11.16 SEVERABILITY. In the event that any provision of this Agreement, or
the application of any such provision to any Person 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 Persons 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.
11.17 ENTIRE AGREEMENT. The Transactional Agreements set forth the entire
understanding of the parties relating to the subject matter thereof and
supersede all prior agreements and understandings among or between any of the
parties relating to the subject matter thereof.
11.18 PAYMENT. Except as otherwise set forth herein or agreed by the
parties hereto, all payments under this Agreement shall be made in U.S. Dollars.
The tender or payment of any amounts payable under this Agreement (whether or
not by recovery under a judgment) in any currency other than U.S. Dollars shall
not novate, satisfy or discharge the obligation of the paying party to pay in
U.S. Dollars all amounts payable by such party. To the extent that any indemnity
claim is expressed in Singapore Dollars, the amount of such claim shall be
deemed equal (in U.S. Dollars) to such number of Singapore Dollars multiplied by
the conversion rate of Singapore Dollars into U.S. Dollars as published in the
ASIAN WALL STREET JOURNAL as of the business day that is two business days
before the date of the Claim Notice relating to such indemnity claim.
11.19 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.
(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" and "Exhibits" are intended to refer to Sections of this Agreement
and Exhibits to this Agreement.
32.
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(e) All references to days, dates and times shall be to Singapore
time; provided, however, that all references to "trading days" shall be to New
York time.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
33.
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The parties hereto have caused this Agreement to be executed and delivered
as of the date first above written.
"PURCHASER": "THE SELLING STOCKHOLDERS":
METRON TECHNOLOGY N.V., CHER LEW HIONG JAMES
a Netherlands corporation
By: /s/ E. Segal By: /s/ Cher Lew Hiong James
----------------------------- -----------------------------
Its: Pres & CEO
By: /s/ Peter V. Leigh CHIA CHIAP HENG BASIL
-----------------------------
Its: Managing Director
By: /s/ Chia Chiap Heng Basil
-----------------------------
CHER LEW KWANG FRANCIS
By: /s/ Cher Lew Kwang Francis
-----------------------------
ELITE STAR ENTERPRISES PTE. LTD.,
A SINGAPORE COMPANY
By: /s/ Patrick Tay
------------------
Its:
34.
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EXHIBIT A
CERTAIN DEFINITIONS
For purposes of the Agreement (including this Exhibit A):
ACQUISITION TRANSACTION. "Acquisition Transaction" shall mean any
transaction involving:
(a) the sale or other disposition of all or any portion of Intec's
business or assets (other than in the Ordinary Course of Business);
(b) the issuance, sale or other disposition of (i) any shares in the
capital of Intec, (ii) any option, call, warrant or right (whether or not
immediately exercisable) to acquire any shares in the capital of Intec, or
(iii) any security, instrument or obligation that is or may become
convertible into or exchangeable for any shares in the capital of Intec; or
(c) any merger, consolidation, business combination, share exchange,
reorganization or similar transaction involving Intec.
AFFILIATES. "Affiliates" shall mean as to any person, a person that
directly, indirectly or through one or more direct or indirect intermediaries,
controls or is controlled by or is under common control with the person
specified.
AGREEMENT. "Agreement" shall mean the Stock Purchase Agreement to which
this Exhibit A is attached (including the Disclosure Schedule), as it may be
amended from time to time.
AUDIT DATE. "Audit Date" shall have the meaning specified in SECTION
10.1(a) of the Agreement.
BREACH. There shall be deemed to be a "Breach" of a representation,
warranty, covenant, obligation or other provision if there is or has been (a)
any inaccuracy in or breach of, or any failure to comply with or perform, such
representation, warranty, covenant, obligation or other provision, or (b) any
claim (by any Person) or other circumstance that is inconsistent with such
representation, warranty, covenant, obligation or other provision; and the term
"Breach" shall be deemed to refer to any such inaccuracy, breach, failure, claim
or circumstance.
CAP. "Cap" shall have the meaning specified in SECTION 10.3(a) of the
Agreement.
CLAIM NOTICE. "Claim Notice" shall have the meaning specified in SECTION
10.11(b)(iii) of the Agreement.
CLOSING. "Closing" shall have the meaning specified in SECTION 1.3(a) of
the Agreement.
CLOSING DATE. "Closing Date" shall have the meaning specified in SECTION
1.3(a) of the Agreement.
CLOSING DATE PRICE. "Closing Date Price" shall mean eight and six hundred
twenty five thousandths United States Dollars (US$8.625), representing the
per-share closing bid price on Nasdaq New York of the common stock of MTNV on
November 16, 2000. The parties agree that the aggregate number of shares of MTNV
Stock to be delivered to the Selling Stockholders is set forth in SECTIONS
1.2(b) and (c) of the Agreement.
COMPANIES. "Companies" shall mean Intec and ECS Industries Sdn. Bhd., which
term shall refer to the Companies together and to each of them individually.
1.
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COMPARABLE ENTITIES. "Comparable Entities" shall mean Entities (other than
Intec) that are engaged in businesses similar to Intec's business.
CONSENT. "Consent" shall mean any approval, consent, ratification,
permission, waiver or authorization (including any Governmental Authorization).
CONSIDERATION SHARES. "Consideration Shares" shall have the meaning
specified in SECTION 1.2 of the Agreement.
CONTRACT. "Contract" shall mean any written, oral, implied or other
agreement, contract, understanding, arrangement, instrument, note, guaranty,
indemnity, representation, warranty, deed, assignment, power of attorney,
certificate, purchase order, work order, insurance policy, benefit plan,
commitment, covenant, assurance or undertaking of any nature.
CONTRAVENTION EVENT. "Contravention Event" shall mean any event which
would:
(a) contravene, conflict with or result in a violation of (i) any of
the provisions of Intec's charter documents, or (ii) any resolution adopted
by Intec's shareholders, Intec's board of directors or any committee of
Intec's board of directors;
(b) contravene, conflict with or result in a violation of, or give
any Governmental Body or other Person the right to challenge any of the
Transactions or to exercise any remedy or obtain any relief under, any
Legal Requirement or any Order to which Intec or the Selling Stockholders,
or any of the assets owned or used by Intec, is subject;
(c) cause Intec, the Purchaser or any affiliate of the Purchaser to
become subject to, or to become liable for the payment of, any Tax;
(d) cause any of the assets owned or used by Intec to be reassessed
or revalued by any taxing authority or other Governmental Body;
(e) contravene, conflict with or result in a violation of any of the
terms or requirements of, or give any Governmental Body the right to
revoke, withdraw, suspend, cancel, terminate or modify, any Governmental
Authorization that is held by Intec or any of its employees or that
otherwise relates to Intec's business or to any of the assets owned or used
by Intec;
(f) contravene, conflict with or result in a violation or breach of,
or result in a default under, any provision of any Intec Contract;
(g) give any Person the right to (i) declare a default or exercise
any remedy under any Intec Contract, (ii) accelerate the maturity or
performance of any Intec Contract, or (iii) cancel, terminate or modify any
Intec Contract;
(h) contravene, conflict with or result in a violation or breach of
or a default under any provision of, or give any Person the right to
declare a default under, any Contract to which the Selling Stockholders are
a party or by which the Selling Stockholders are bound; or
(i) result in the imposition or creation of any Encumbrance upon or
with respect to any asset owned or used by Intec.
DAMAGES. "Damages" shall include any loss, damage, injury, decline in
value, lost opportunity, Liability, claim, demand, settlement, judgment, award,
fine, penalty, Tax, fee (including any legal fee,
2.
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expert fee, accounting fee or advisory fee), charge, cost (including any cost of
investigation) or expense of any nature, including without limitation interest
as provided in SECTION 10.6 of the Agreement.
DEFINITIVELY RESOLVED. "Definitively Resolved" shall have the meaning
specified in SECTION 10.11(b) of the Agreement.
DEMAND REGISTRATION. "Demand Registration" shall have the meaning specified
in SECTION 5.2(b)(i) of the Agreement.
DISCLOSURE SCHEDULE. "Disclosure Schedule" shall mean the schedule (dated
as of the date of the Agreement) delivered to the Purchaser on behalf of the
Selling Stockholders, a copy of which is attached to the Agreement and
incorporated in the Agreement by reference.
ELITE. "Elite" shall have the meaning specified in the introductory
paragraph of the Agreement.
ENCUMBRANCE. "Encumbrance" shall mean any lien, pledge, hypothecation,
charge, mortgage, security interest, encumbrance, equity, trust, equitable
interest, claim, preference, right of possession, lease, tenancy, license,
encroachment, covenant, infringement, interference, Order, proxy, option, right
of first refusal, preemptive right, community property interest, legend, defect,
impediment, exception, reservation, limitation, impairment, imperfection of
title, condition or restriction of any nature.
ENTITY. "Entity" shall mean any corporation (including any non-profit
corporation), general partnership, limited partnership, limited liability
partnership, joint venture, estate, trust, cooperative, foundation, society,
political party, union, company (including any limited liability company or
joint stock company), firm or other enterprise, association, organization or
entity.
ESCROW AGENT. "Escrow Agent" shall have the meaning specified in SECTION
1.2(c) of the Agreement.
ESCROW AGREEMENT. "Escrow Agreement" shall mean the Agreement in the form
of Exhibit D hereto.
ESCROW FUND. "Escrow Fund" shall have the meaning specified in the Escrow
Agreement.
ESCROWED SHARES. "Escrowed Shares" shall have the meaning specified in
SECTION 1.2(c) of the Agreement.
ESCROW TERMINATION DATE. "Escrow Termination Date" shall have the meaning
specified in SECTION 10.1(a) of the Agreement.
EXCHANGE ACT. "Exchange Act" shall mean the United States Securities
Exchange Act of 1934, as amended and the rules and regulations promulgated
thereunder, as amended.
EXCLUDED CONTRACT. "Excluded Contract" shall mean any Intec Contract that:
(a) Intec has entered into in the Ordinary Course of Business;
(b) is identical in all material respects to one of the forms of
agreement attached as appendices to the Disclosure Schedule and identified
therein as a "standard form agreement" of Intec;
(c) has a term of less than 90 days or may be terminated by
Intec (without penalty) within 90 days after the delivery of a termination
notice by Intec; and
3.
<PAGE>
(d) does not contemplate or involve the payment of cash or other
consideration in an amount or having a value in excess of S$25,000.
EXPENSES. "Expenses" shall have the meaning specified in SECTION 11.3 of
the Agreement.
GAAP. "GAAP" shall mean generally accepted accounting principles in
Singapore, applied on a basis consistent with the basis on which the Intec
Financial Statements were prepared.
GOVERNMENTAL AUTHORIZATION. "Governmental Authorization" shall mean any:
(a) permit, license, certificate, franchise, concession, approval,
consent, ratification, permission, clearance, confirmation, endorsement,
waiver, certification, designation, rating, registration, qualification or
authorization that is, has been or may in the future be issued, granted,
given or otherwise made available by or under the authority of any
Governmental Body or pursuant to any Legal Requirement; or
(b) right under any Contract with any Governmental Body.
GOVERNMENTAL BODY. "Governmental Body" shall mean any:
(a) nation, principality, state, commonwealth, province, territory,
county, municipality, district or other jurisdiction of any nature;
(b) federal, state, local, municipal, foreign or other government;
(c) governmental or quasi-governmental authority of any nature
(including any governmental division, subdivision, department, agency,
bureau, branch, office, commission, council, board, instrumentality,
officer, official, representative, organization, unit, body or Entity and
any court or other tribunal);
(d) multi-national organization or body; or
(e) individual, Entity or body exercising, or entitled to exercise,
any executive, legislative, judicial, administrative, regulatory, police,
military or taxing authority or power of any nature.
HAZARDOUS MATERIAL. "Hazardous Material" shall include: any petroleum,
waste oil, crude oil, asbestos, urea formaldehyde or polychlorinated biphenyl;
any waste, gas or other substance or material that is explosive or radioactive;
any "hazardous substance," "pollutant," "contaminant," "hazardous waste,"
"regulated substance," "hazardous chemical" or "toxic chemical" as designated,
listed or defined; any other substance or material (regardless of physical form)
or form of energy that is subject to any Legal Requirement which regulates or
establishes standards of conduct in connection with, or which otherwise relates
to, the protection of human health, plant life, animal life, natural resources,
property or the enjoyment of life or property from the presence in the
environment of any solid, liquid, gas, odor, noise or form of energy; and any
compound, mixture, solution, product or other substance or material that
contains any substance or material referred to in the foregoing clauses.
ICB. "ICB" shall mean the Industrial & Commercial Bank Limited.
ICB FACILITY. "ICB Facility" shall have the meaning specified in SECTION
1.3(b)(x) of the Agreement.
4.
<PAGE>
INDEMNIFICATION THRESHOLD. "Indemnification Threshold" shall have the
meaning specified in SECTION 10.3(a) of the Agreement.
INDEMNITEES. "Indemnitees" shall mean the Purchaser, the Companies and any
successor or permitted assign of Purchaser under SECTION 11.12 of the Agreement.
The Selling Stockholders shall not be deemed to be one of the
"Indemnitees."
INTEC. "Intec" shall have the meaning specified in Recital "A" to the
Agreement.
INTEC CONTRACT. "Intec Contract" shall mean any Contract:
(a) to which any of the Companies is a party;
(b) by which the Companies or any of their assets is or may become
bound or under which the Companies have or may become subject to any
obligation; or
(c) under which the Companies have or may acquire any right or
interest.
INTEC FINANCIAL STATEMENTS. "Intec Financial Statements" shall have the
meaning specified in SECTION 2.5 of the Agreement.
INTEC RETURNS. "Intec Returns" shall have the meaning specified in SECTION
2.19(b) of the Agreement.
KNOWLEDGE. An individual shall be deemed to have "Knowledge" of a
particular fact or other matter if: such individual is actually aware of such
fact or other matter; or a prudent individual could be expected to discover or
otherwise become aware of such fact or other matter in the course of conducting
a diligent and comprehensive investigation concerning the truth or existence of
such fact or other matter. The Selling Stockholders shall be deemed to have
"Knowledge" of a particular fact or other matter if any officer, employee or
other Representative of the Selling Stockholders or Intec has Knowledge of such
fact or other matter.
LEGAL REQUIREMENT. "Legal Requirement" shall mean any federal, state,
local, municipal, foreign or other law, statute, legislation, constitution,
principle of common law, resolution, ordinance, code, edict, decree,
proclamation, treaty, convention, rule, regulation, ruling, directive,
pronouncement, requirement, specification, determination, decision, opinion or
interpretation that is or has been (or, in respect to SECTION 2.15(b) or 10.8 of
the Agreement, may in the future be) issued, enacted, adopted, passed, approved,
promulgated, made, implemented or otherwise put into effect by or under the
authority of any Governmental Body.
LIABILITY. "Liability" shall mean any debt, obligation, duty or liability
of any nature (including any unknown, undisclosed, unmatured, unaccrued,
unasserted, contingent, indirect, conditional, implied, vicarious, derivative,
joint, several or secondary liability), regardless of whether such debt,
obligation, duty or liability would be required to be disclosed on a balance
sheet prepared in accordance with generally accepted accounting principles and
regardless of whether such debt, obligation, duty or liability is immediately
due and payable.
MATERIAL CHANGE. "Material Change," shall mean, with regard to Intec:
(a) any material adverse change in the Companies' businesses,
condition, assets, liabilities, operations, financial performance, net
income or prospects (or in any aspect or portion thereof), and no event has
occurred that might have a material adverse effect on the Companies'
5.
<PAGE>
businesses, condition, assets, liabilities, operations, financial
performance, net income or prospects (or on any aspect or portion thereof);
(b) any loss, damage or destruction to, or any interruption in the
use of, any of the Companies' assets (whether or not covered by insurance);
(c) any action by the Companies to (i) declare, accrue, set aside or
pay any dividend or any other distribution in respect of any shares of
capital stock, or (ii) repurchase, redemption or other reacquisition of any
shares of capital stock or other securities;
(d) any sale or other issuance of any shares of capital stock or any
other securities;
(e) any amendment of the Companies' charter documents and any
Acquisition Transaction, recapitalization, reclassification of shares,
stock split, reverse stock split or similar transaction;
(f) any purchase or other acquisition of any asset from any other
Person, except for supplies acquired in the Ordinary Course of Business,
and any lease or license of any asset from any other Person except for
leases of office equipment and similar items involving less than S$25,000
in the aggregate.
(g) any capital expenditures;
(h) any sale or other transfer, and any lease or license, of any
asset to any other Person except for products sold from inventory in the
Ordinary Course of Business;
(i) any writing off as uncollectible, or establishment of any
extraordinary reserve with respect to, any account receivable or other
indebtedness;
(j) any pledge or hypothecation of any assets or the subjection of
any assets to any Encumbrance;
(k) any loan or advance to any other Person except for the extension
of credit to customers in the Ordinary Course of Business;
(l) any (i) establishment or adoption of any Benefit Plan for its
employees, or (ii) payment of any bonus or any profit-sharing or similar
payment to, or material increase in the per annum wages, salaries,
commission rate, fringe benefits or other compensation or remuneration
payable to, any directors, officers or employees;
(m) any entering into, or the subjection of any assets (owned or
used) to the provisions of, any Contract that is not an Excluded Contract;
(n) any amendment or termination of any Contract by which the
Companies or any of the assets owned or used by the Companies, is or was
bound, or under which the Companies have or had any rights or interest, has
been amended or terminated;
(o) any incurrance or assumption by the Companies of, and any other
event as a result of which the Companies have become subject to, any
Liability, other than accounts payable (of the type required to be
reflected as current liabilities in the "liabilities" column of a balance
sheet prepared in accordance with GAAP) incurred by Intec in the Ordinary
Course of Business;
6.
<PAGE>
(p) any discharge by the Companies of any Encumbrance or discharge or
payment of any indebtedness or other Liability, except for accounts payable
that (i) are reflected as current liabilities in the "liabilities" column
of the Unaudited Interim Balance Sheet or have been incurred by the
Companies since December 31, 1998 in the Ordinary Course of Business, and
(ii) have been discharged or paid in the Ordinary Course of Business;
(q) any forgiveness by the Companies of any debt or other release or
waiver of any right or claim;
(r) any change in any respect in any of the Companies' methods of
accounting or accounting practices;
(s) any entry by the Companies into any transaction or taking of any
other action outside the Ordinary Course of Business; and
(t) any agreement, commitment or offer by the Companies (in writing
or otherwise), and any attempt, to take any of the actions referred to in
clauses "(a)" through "(s)" above.
MINORITY SHAREHOLDERS. "Minority Shareholders" shall have the meaning
specified in SECTION 2.30 of the Agreement.
MTNV. "MTNV" shall have the meaning specified in the introductory paragraph
of the Agreement.
MTNV STOCK. "MTNV Stock" shall mean the common stock of MTNV, par value NLG
0.96 each.
NON-ZERO THRESHOLD CLAIMS. "Non -Zero Threshold Claims" shall mean all
claims for indemnification by the Indemnitees under this Agreement that are not
Zero Threshold Claims.
NOTIFICATION DATE. "Notification Date" shall have the meaning specified in
SECTION 5.2(b)(i) of the Agreement.
ORDER. "Order" shall mean any:
(a) order, judgment, injunction, edict, decree, ruling,
pronouncement, determination, decision, opinion, verdict, sentence,
subpoena, writ or award that is, has been or may in the future be issued,
made, entered, rendered or otherwise put into effect by or under the
authority of any court, administrative agency or other Governmental Body or
any arbitrator or arbitration panel; or
(b) Contract with any Governmental Body that is, has been or may in
the future be entered into in connection with any Proceeding.
ORDINARY COURSE OF BUSINESS. An action taken by or on behalf of the
Companies shall not be deemed to have been taken in the "Ordinary Course of
Business" unless:
(a) such action is recurring in nature, is consistent with the
Companies' past practices and is taken in the ordinary course of the
Companies' normal day-to-day operations;
(b) such action is taken in accordance with sound and prudent
business practices;
7.
<PAGE>
(c) such action is not required to be authorized by the Companies'
shareholders, the Companies' board of directors or any committee of the
Companies' board of directors and does not require any other separate or
special authorization of any nature; and
(d) such action is similar in nature and magnitude to actions
customarily taken, without any separate or special authorization, in the
ordinary course of the normal day-to-day operations of other Entities that
are engaged in businesses similar to Intec's business.
PAYABLE CLAIM. "Payable Claim" shall have the meaning specified in SECTION
10.11(c) of the Agreement.
PENDING CLAIM. "Pending Claim" shall have the meaning specified in SECTION
10.11(c) of the Agreement.
PERSON. "Person" shall mean any individual, Entity or Governmental Body.
POOLING OF INTERESTS. "Pooling of Interests" shall mean pooling of
interests accounting treatment.
PROCEEDING. "Proceeding" shall mean any action, suit, litigation,
arbitration, proceeding (including any civil, criminal, administrative,
investigative or appellate proceeding and any informal proceeding), prosecution,
contest, hearing, inquiry, inquest, audit, examination or investigation that is,
has been or, with respect to SECTION 10 of the Agreement only, may in the
future, be commenced, brought, conducted or heard by or before, or that
otherwise has involved or may involve, any Governmental Body or any arbitrator
or arbitration panel.
PROPRIETARY ASSET. "Proprietary Asset" shall mean any patent, patent
application, trademark (whether registered or unregistered and whether or not
relating to a published work), trademark application, trade name, fictitious
business name, service mark (whether registered or unregistered), service mark
application, copyright (whether registered or unregistered), copyright
application, maskwork, maskwork application, trade secret, know-how, franchise,
system, computer software, invention, design, blueprint, proprietary product,
technology, proprietary right or other intellectual property right or intangible
asset.
PURCHASER. "Purchaser" shall have the meaning specified in the introductory
paragraph of the Agreement.
REGISTRABLE SECURITIES. "Registrable Securities" shall have the meaning
specified in SECTION 5.2(a) of the Agreement.
REGISTRATION EXPENSES. "Registration Expenses" shall have the meaning
specified in SECTION 5.2(a) of the Agreement.
REGISTRATION STATEMENT. "Registration Statement" shall have the meaning
specified in SECTION 5.2(a) of the Agreement.
RELATED PARTY. Each of the following shall be deemed to be a "Related
Party":
(a) the Selling Stockholders;
(b) each individual who is, or who has at any time been, an officer
of the Companies;
(c) each member of the family of each of the individuals referred to
in clause "(a)" above; and
8.
<PAGE>
(d) any Entity (other than the Companies) in which any one of the
individuals referred to in clauses "(a)" and "(b)" and "(c)" above holds
(or in which more than one of such individuals collectively hold),
beneficially or otherwise, a material voting, proprietary or equity
interest.
REPRESENTATIVES. "Representatives" shall mean officers, directors,
employees, agents, attorneys, accountants, advisors and representatives. The
Selling Stockholders and all other Related Parties shall not be deemed to be
"Representatives" of Intec.
RHB. "RHB" shall mean RHB Bank Berhad.
RHB FACILITY. "RHB Facility" shall have the meaning specified in SECTION
1.3(b)(x) of the Agreement.
SEC. "SEC" shall mean the United States Securities and Exchange Commission.
SECURITIES ACT. "Securities Act" shall mean the United States Securities
Act of 1933, as amended, and the rules and regulations promulgated thereunder,
as amended.
SELLING EXPENSES. "Selling Expenses" shall have the meaning specified in
SECTION 5.2(a) of the Agreement.
SELLING STOCKHOLDERS. "Selling Stockholders" shall have the meaning
specified in the introductory paragraph of the Agreement.
SETTLED CLAIM. "Settled Claim" shall have the meaning specified in SECTION
10.11(c) of the Agreement.
SHARES. "Shares" shall have the meaning specified in Recital "A" to the
Agreement.
SHARE REPURCHASE TRANSACTION. "Share Repurchase Transaction" shall have the
meaning specified in SECTION 2.30 of the Agreement.
STAMP DUTY DOCUMENTS. "Stamp Duty Documents" shall mean the statutory
declaration in relation to the transfer of Shares in the form prescribed by the
Stamp Duty Branch of the Inland Revenue Authority of Singapore and sworn by the
transferor of Shares, together with all documents required to be attached to
such statutory declaration and a working sheet computing the net asset value per
Share of the Company or, in lieu of such statutory declaration, a letter in the
form prescribed by the Stamp Duty Branch of the Inland Revenue Authority of
Singapore and signed by a Director or the secretary of the Company incorporating
a working sheet computing the net asset value per Share of the Company.
SUSPENSION NOTICE. "Suspension Notice" shall have the meaning specified in
SECTION 5.2(d)(ii) of the Agreement.
TAX. "Tax" shall mean any tax (including any income tax, franchise tax,
capital gains tax, estimated tax, gross receipts tax, value-added tax, surtax,
excise tax, ad valorem tax, transfer tax, stamp tax, goods and services tax,
sales tax, use tax, property tax, business tax, occupation tax, inventory tax,
occupancy tax, withholding tax or payroll tax), levy, assessment, tariff,
impost, imposition, toll, duty (including any customs duty), deficiency or fee,
and any related charge or amount (including any fine, penalty or interest), that
is, has been or may in the future be (a) imposed, assessed or collected by or
under the authority of any Governmental Body, or (b) payable pursuant to any
tax-sharing agreement or similar Contract.
9.
<PAGE>
TAX RETURN. "Tax Return" shall mean any return (including any information
return), report, statement, declaration, estimate, schedule, notice,
notification, form, election, certificate or other document or information that
is, has been or may in the future be filed with or submitted to, or required to
be filed with or submitted to, any Governmental Body in connection with the
determination, assessment, collection or payment of any Tax or in connection
with the administration, implementation or enforcement of or compliance with any
Legal Requirement relating to any Tax.
TRANSACTIONAL AGREEMENTS. "Transactional Agreements" shall mean this Stock
Purchase Agreement and the other agreements, documents, and certificates entered
into or exchanged between the parties as contemplated herein.
TRANSACTIONS. "Transactions" shall mean (a) the execution and delivery of
the respective Transactional Agreements, and (b) all of the transactions
contemplated by the respective Transactional Agreements, including:
(i) the sale of the Shares by the Selling Stockholders to
the Purchaser in accordance with the Agreement; and
(ii) the performance by the Selling Stockholders and the
Purchaser of their respective obligations under the Transactional
Agreements and the exercise by the Selling Stockholders and the Purchaser
of their respective rights under the Transactional Agreements.
UNAUDITED BALANCE SHEET DATE. "Unaudited Balance Sheet Date" shall have the
meaning specified in SECTION 2.5(b) of the Agreement.
UNAUDITED INTERIM BALANCE SHEET. "Unaudited Interim Balance Sheet" shall
have the meaning specified in SECTION 2.5(b) of the Agreement.
ZERO THRESHOLD CLAIMS. "Zero Threshold Claims" shall mean claims for
indemnification by the Indemnitees pursuant to SECTION 5.2(e) of the Agreement,
for willful Breach of this Agreement by the Selling Stockholders, or for Breach
of SECTIONS 10.12 (including, without limitation, Section 4.2 of the Escrow
Agreement), 11.3 and 11.4 of the Agreement by the Selling Shareholders, which
such claims shall be payable on a dollar-for-dollar basis.
10.
<PAGE>
EXHIBIT B
ALLOCATION OF CONSIDERATION
<TABLE>
<CAPTION>
NAME NUMBER OF
CONSIDERATION SHARES
ESCROWED SHARES CONSIDERATION SHARES PAID TOTAL
<S> <C> <C> <C>
Cher Lew Hiong James 13,300 152,950 166,250
Chia Chiap Heng Basil 6,840 78,660 85,500
Cher Lew Kwang Francis 10,260 117,990 128,250
Elite Star Enterprises Pte. Ltd. 7,600 87,400 95,000
</TABLE>
1.
<PAGE>
EXHIBIT C
FORM OF GENERAL RELEASE
THIS GENERAL RELEASE ("General Release") is being executed and delivered as
of November 17, 2000, by _________________ ("Releasor") to and in favor of, and
for the benefit of, INTEC TECHNOLOGY (S) PTE LTD., a company organized under the
laws of Singapore ("Target"), METRON TECHNOLOGY N.V., a corporation organized
under the laws of the Netherlands ("Purchaser"), and the other Releasees (as
defined in Section 2).
RECITALS
A. Contemporaneously with the execution and delivery of this General
Release, Releasor is selling his shares of the capital stock of Target to
Purchaser pursuant to a Stock Purchase Agreement dated as of November 17, 2000
(the "Stock Purchase Agreement").
B. Target has required, as a condition to consummating the transactions
contemplated by the Stock Purchase Agreement, that Releasor execute and deliver
this General Release.
AGREEMENT
In order to induce Purchaser to consummate the transactions contemplated by
the Stock Purchase Agreement, and for other valuable consideration (the receipt
and sufficiency of which are hereby acknowledged by Releasor), Releasor hereby
covenants and agrees as follows:
I. RELEASE. Releasor, for himself and for each of his Associated Parties (as
defined in Section 2), hereby generally, irrevocably, unconditionally and
completely releases and forever discharges each of the Releasees (as defined in
Section 2) from, and hereby irrevocably, unconditionally and completely waives
and relinquishes, each of the Released Claims (as defined in Section 2).
II. DEFINITIONS.
(a) The term "Associated Parties," when used herein with respect to
Releasor, shall mean and include: (i) Releasor's predecessors, successors,
executors, administrators, heirs and estate; (ii) Releasor's past, present and
future assigns, agents and representatives; (iii) each entity that Releasor has
the power to bind (by Releasor's acts or signature) or over which Releasor
directly or indirectly exercises control; and (iv) each entity of which Releasor
owns, directly or indirectly, at least 50% of the outstanding equity,
beneficial, proprietary, ownership or voting interests.
(b) The term "Releasees" shall mean and include: (i) Purchaser; (ii)
Target; (iii) each of the direct and indirect subsidiaries of Target; (iv) each
other affiliate of Target; and
1.
<PAGE>
(v) the successors and past, present and future assigns, directors, officers,
employees, agents, attorneys and representatives of the respective entities
identified or otherwise referred to in clauses "(i)" through "(iv)" of this
sentence, other than Releasor.
(c) The term "Claims" shall mean and include all past, present and
future disputes, claims, controversies, demands, rights, obligations,
liabilities, actions and causes of action of every kind and nature, including:
(i) any unknown, unsuspected or undisclosed claim; (ii) any claim or right that
may be asserted or exercised by Releasor in Releasor's capacity as a
shareholder, director, officer or employee of Target or in any other capacity;
and (iii) any claim, right or cause of action based upon any breach of any
express, implied, oral or written contract or agreement.
(d) The term "Released Claims" shall mean and include each and every
Claim that Releasor or any Associated Party of Releasor may have had in the
past, may now have or may have in the future against any of the Releasees which
has arisen or arises out of, or relates to, any circumstance, agreement,
activity, action, omission, event or matter occurring or existing at any time
prior to the execution of this General Release (including, without limitation,
any claims relating to the negotiation of amount of consideration under the
Stock Purchase Agreement and the other Transactional Agreements, as defined in
the Stock Purchase Agreement, but excluding always, for the avoidance of doubt,
any and all of such Releasor's rights and claims under the Stock Purchase
Agreement and the other Transactional Agreements).
III. REPRESENTATIONS AND WARRANTIES. Releasor represents and warrants that:
(a) Releasor has not assigned, transferred, conveyed or otherwise
disposed of any Claim against any of the Releasees, or any direct or indirect
interest in any such Claim, in whole or in part;
(b) to the best of Releasor's knowledge, no other person or entity
has any interest in any of the Released Claims;
(c) no Associated Party of Releasor has or had any Claim against any
of the Releasees;
(d) this General Release has been duly and validly executed and
delivered by Releasor;
(e) this General Release is a valid and binding obligation of
Releasor, and is enforceable against Releasor in accordance with its terms;
(f) there is no action, suit, proceeding, dispute, litigation, claim,
complaint or investigation by or before any court, tribunal, governmental body,
governmental agency or arbitrator pending or, to the best of the knowledge of
Releasor, threatened against Releasor or any of Releasor's Associated Parties
that challenges or would challenge the execution and delivery of this General
Release or the taking of any of the actions required to be taken by Releasor
under this General Release;
2.
<PAGE>
(g) neither the execution and delivery of this General Release nor
the performance hereof will (i) result in any violation or breach of any
agreement or other instrument to which Releasor or, to the best knowledge of
Releasor, any of Releasor's Associated Parties is a party or by which such
Releasor or any of Releasor's Associated Parties is bound, or (ii) result in a
violation or any law, rule, regulation, treaty, ruling, directive, order,
arbitration award, judgment or decree to which Releasor or , to the best
knowledge of Releasor, any of Releasor's Associated Parties is subject; and
(h) no authorization, instruction, consent or approval of any person
or entity is required to be obtained by Releasor or any of Releasor's Associated
Parties in connection with the execution and delivery of this General Release or
the performance hereof.
IV. INDEMNIFICATION. Without in any way limiting any of the rights or remedies
otherwise available to any Releasee, Releasor shall indemnify and hold harmless
each Releasee against and from any loss, damage, injury, harm, detriment,
liability, exposure, claim, demand, settlement, judgment, award, fine, penalty,
tax, fee, charge or expense (including reasonable attorneys' fees) that is
suffered or incurred at any time by such Releasee, or to which such Releasee
otherwise becomes subject at any time, and that arises out of or by virtue of,
or relates to, (a) any breach of any representation or warranty contained
herein, or (b) the assertion or purported assertion of any of the Released
Claims by Releasor or any of Releasor's Associated Parties.
V. MISCELLANEOUS.
(a) This General Release sets forth the entire understanding of the
parties relating to the subject matter hereof and supersedes all prior
agreements and understandings among or between Releasor and Releasees relating
to the subject matter hereof.
(b) If any provision of this General Release or any part of any such
provision is held under any circumstances to be invalid or unenforceable in any
jurisdiction, then (i) such provision or part thereof shall, with respect to
such circumstances and in such jurisdiction, be deemed amended to conform to
applicable laws so as to be valid and enforceable to the fullest possible
extent, (ii) the invalidity or unenforceability of such provision or part
thereof under such circumstances and in such jurisdiction shall not affect the
validity or enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (iii) such invalidity or
enforceability of such provision or part thereof shall not affect the validity
or enforceability of the remainder of such provision or the validity or
enforceability of any other provision of this General Release. If any provision
of this General Release or any part of such provision is held to be
unenforceable against Releasor, then the unenforceability of such provision or
part thereof against Releasor shall not affect the enforceability thereof
against any other Releasor. Each provision of this General Release is separable
from every other provision of this General Release, and each part of each
provision of this General Release is separable from every other part of such
provision.
(c) This General Release shall be construed in accordance with, and
governed in all respects by, the laws of Singapore (without giving effect to
principles of conflicts of laws).
3.
<PAGE>
(d) Any legal action or other legal proceeding relating to this
General Release or the enforcement of any provision of this General Release may
be brought or otherwise commenced by any Releasee in any court located in
Singapore. Releasor:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each court located in Singapore in connection with any such
legal proceeding;
(ii) agrees that each court located in Singapore shall be deemed
to be a convenient forum; and
(iii) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in court located in
Singapore, any claim that Releasor is not subject personally to the
jurisdiction of such court, that such legal proceeding has been brought in
an inconvenient forum, that the venue of such proceeding is improper or
that this General Release or the subject matter of this General Release may
not be enforced in or by such court.
Nothing contained in this General Release shall be deemed to limit or otherwise
affect the right of any Releasee (1) to commence any legal proceeding or to
otherwise proceed against Releasor or any other person or entity in any other
forum or jurisdiction, or (2) to raise this Release as a defense in any legal
proceeding in any other forum or jurisdiction.
(e) This General Release may be executed in several counterparts, each of
which shall constitute an original and all of which, when taken together, shall
constitute one agreement.
(f) Releasor shall execute and/or cause to be delivered to each Releasee
such instruments and other documents, and shall take such other actions, as such
Releasee may reasonably request for the purpose of carrying out or evidencing
any of the actions contemplated by this General Release.
(g) If any legal action or other legal proceeding relating to this General
Release or the enforcement of any provision hereof is brought by Releasor or
Releasee, the prevailing party shall be entitled to recover reasonable
attorneys' fees, costs and disbursements to the extent actually incurred (in
addition to any other relief to which the prevailing party may be entitled).
(h) This General Release shall be effective with respect to, and shall be
binding upon and enforceable against, Releasor.
(i) Whenever required by the context, the singular number shall include
the plural, and vice versa; the masculine gender shall include the feminine and
neuter genders; and the neuter gender shall include the masculine and feminine
genders.
(j) 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 General Release.
4.
<PAGE>
(k) As used in this General Release, the words "include" and "including,"
and variations thereof, shall not be deemed to be terms of limitation, and shall
be deemed to be followed by the words "without limitation."
[THIS SPACE INTENTIONALLY LEFT BLANK]
5.
<PAGE>
IN WITNESS WHEREOF, Releasor has caused this General Release to be executed as
of the date first above written.
RELEASOR
------------------------
Acknowledged and agreed:
METRON TECHNOLOGY N.V.
By:____________________________
Its:
By:____________________________
Its:
INTEC TECHNOLOGY (S) PTE. LTD.
By:____________________________
Its:
6.
<PAGE>
EXHIBIT D
FORM OF ESCROW AGREEMENT
<PAGE>
--------------------------------------------------------------------------------
INDEMNIFICATION ESCROW AGREEMENT
by and among:
METRON TECHNOLOGY N.V.,
a corporation organized under the laws of the Netherlands;
CHER LEW HIONG JAMES, CHIA CHIAP HENG BASIL, CHER LEW KWANG FRANCIS, AND
ELITE STAR ENTERPRISES PTE. LTD.,
a company organized under the laws of Singapore,
being all of the shareholders of Intec Technology (S) Pte. Ltd.;
and
ALLEN & GLEDHILL,
A SINGAPORE LAW FIRM ORGANIZED AS A PARTNERSHIP,
AS ESCROW AGENT
Dated as of November 17, 2000
--------------------------------------------------------------------------------
2.
<PAGE>
THIS INDEMNIFICATION ESCROW AGREEMENT, dated as of November 17, 2000, is
entered into by and among Metron Technology N.V., a corporation organized under
the laws of the Netherlands ("MTNV"), Allen & Gledhill, a Singapore law firm
organized as a partnership, as escrow agent ("ESCROW AGENT") and the following
parties (collectively, "SELLING STOCKHOLDERS"): Cher Lew Hiong James, an
individual; Chia Chiap Heng Basil, an individual; Cher Lew Kwang Francis, an
individual; and Elite Star Enterprises Pte. Ltd., a private company limited by
shares incorporated under the laws of Singapore. (MTNV and Selling Stockholders
are referred to herein together as the "DEPOSITORS" and each individually as a
"DEPOSITOR").
WITNESSETH:
----------
WHEREAS, the Depositors are parties to a certain Stock Purchase Agreement
dated as of the date hereof (the "STOCK PURCHASE AGREEMENT") providing for,
among other things, the purchase by MTNV of all of Selling Stockholders' shares
in Intec Technology (S) Pte. Ltd., a private company limited by shares
incorporated under the laws of Singapore;
WHEREAS, the Depositors wish to provide for the creation of an Escrow Fund
(as hereinafter defined) in order to implement the provisions of the Stock
Purchase Agreement and this Escrow Agreement; and
WHEREAS, the Depositors wish to appoint Escrow Agent, and Escrow Agent has
agreed to act, as a depository and administrator of the Escrow Fund upon the
terms, conditions and provisions hereinafter set forth.
NOW, THEREFORE, in consideration of the mutual promises and covenants
contained herein and other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, it is hereby agreed among the
parties hereto as follows:
1. DEFINED TERMS
1.1 All capitalized terms used herein, unless otherwise defined herein,
shall have the respective meanings ascribed to them in the Stock Purchase
Agreement, which definitions are incorporated herein by reference.
2. APPOINTMENT OF ESCROW AGENT
2.1 The Depositors hereby designate Escrow Agent and Escrow Agent hereby
agrees to act, as a depository and administrator of the Escrow Fund, upon the
terms and subject to the conditions set forth herein.
2.2 The duties, responsibilities and obligations of Escrow Agent, in its
capacity as such, shall be limited to those expressly set forth herein and no
duties, responsibilities or obligations shall be inferred or implied. Escrow
Agent shall not be subject to, nor required to comply with, any other agreement
between the Depositors or to which any Depositor is a party, even though
reference thereto may be made herein (except to the extent that definitions
contained in the Stock Purchase Agreement are incorporated in this Agreement),
or to comply with any direction or instruction (other than joint written
instructions of the Depositors,
3.
<PAGE>
instructions contained herein, written instructions delivered in accordance with
this Escrow Agreement, or pursuant to a Final Order (as herein defined)) from
any person. Escrow Agent shall not be required to, and shall not, expend or risk
any of its own funds or otherwise incur any financial liability in the
performance of any of its duties hereunder unless otherwise specifically set
forth herein.
2.3 If at any time Escrow Agent is served with an order, judgment, decree,
writ or other form of judicial process of a court of competent jurisdiction,
concerning which Escrow Agent either itself reasonably believes or is advised by
competent and experienced legal counsel of its own choosing (which may be legal
counsel to either Depositor) that such order, judgment, decree, writ or other
form of judicial process is not subject to further review or appeal (a "FINAL
ORDER"), which in any way affects the Escrow Fund (including but not limited to
orders of attachment or garnishment or other forms of levies or injunctions or
stays relating to the transfer of the Escrow Fund), Escrow Agent is authorized
to rely upon and comply therewith in any manner as it or its legal counsel of
its own choosing deems appropriate; and if Escrow Agent complies with any such
Final Order, Escrow Agent shall not be liable to any Depositor or to any other
person or entity even though such order, judgment, decree, writ or process may
be subsequently modified or vacated or otherwise determined to have been without
legal force or effect.
2.4 (a) Escrow Agent shall not be liable for any action taken or omitted
or for any loss or injury resulting from its actions or its performance or lack
of performance of its duties hereunder, except with respect to claims which are
successfully asserted against Escrow Agent based upon the bad faith, gross
negligence or willful misconduct of Escrow Agent. In no event shall Escrow Agent
be liable (i) for acting in accordance with or relying upon (x) any written
instruction, notice, demand, certificate or document from any Depositor (or any
entity acting on behalf of any Depositor) pursuant to the terms of this Escrow
Agreement or (y) the joint written instructions of the Depositors, (ii) for any
consequential, punitive or special damages, (iii) for the acts or omissions of
its nominees, correspondents, designees, subagents or subcustodians, or (iv) for
an amount in excess of the value of the Escrow Fund, valued as of the date of
deposit.
(b) Escrow Agent shall not incur any liability for not performing any
act or fulfilling any duty, obligation or responsibility hereunder by reason of
any occurrence beyond the control of Escrow Agent (including but not limited to
any act or provision of any present or future law or regulation or governmental
authority, any act of God or war, or the unavailability of the Federal Reserve
Bank wire or telex or other wire or communication facility).
2.5 Unless otherwise specifically set forth herein, Escrow Agent shall
proceed as soon as practicable to collect any checks or other collection items
at any time deposited hereunder. All such collections shall be subject to Escrow
Agent's usual collection practices or terms regarding items received by Escrow
Agent for deposit or collection. Escrow Agent shall not be required, or have any
duty, to notify anyone of any payment or maturity under the terms of any
instrument deposited hereunder, nor to take any legal action to enforce payment
of any check, note or security deposited hereunder or to exercise any right or
privilege which may be afforded to the holder of any such security.
4.
<PAGE>
2.6 Escrow Agent shall provide to Depositors such statements identifying
transactions, transfers or holdings with respect to the Escrow Fund as the
parties hereto shall from time to time agree. All such statements shall be
deemed to be correct and final upon receipt thereof by the Depositors unless
Escrow Agent is notified in writing to the contrary within thirty (30) business
days of the date of such statement.
2.7 Escrow Agent shall not be responsible in any respect for the form,
execution, validity, value or genuineness of documents or securities deposited
hereunder, or for any description therein, or for the identity, authority or
rights of persons executing or delivering or purporting to execute or deliver
any such document, security or endorsement.
2.8 Depositors shall indemnify, in the manner further provided in this
Section 2.8, Escrow Agent and hold Escrow Agent harmless from and against any
and all claims, losses, liabilities, costs, damages or expenses (including
reasonable attorneys' fees and expenses) (collectively, "LOSSES") arising from
or in connection with or related to this Escrow Agreement (including but not
limited to, Losses incurred by Escrow Agent in connection with its successful
defense, in whole or in part, of any claim of bad faith, gross negligence or
willful misconduct on its part); provided, however, that (i) Escrow Agent shall
not be indemnified for Losses arising from claims which are successfully
asserted against Escrow Agent based upon the bad faith, gross negligence or
willful misconduct of Escrow Agent; (ii) promptly after the receipt by Escrow
Agent of written notice of any demand or claim or the commencement of any such
action, suit or proceeding, Escrow Agent shall notify the Depositors in writing
of the existence of such demand, claim, action, suit or proceeding; (iii) the
Depositors shall be entitled severally and each at its own expense, to
participate in and assume the defense of any such action, suit or proceeding
through counsel of its own choosing if it gives written notice of its intention
to do so no later than twenty (20) days following notice thereof by Escrow Agent
or such shorter time period as Escrow Agent may specify if the interests of
Escrow Agent would be materially prejudiced if a defense to any such action,
suit or proceeding is not initiated within such shorter period; PROVIDED,
HOWEVER, that if the defendants in any action, suit or proceeding shall include
the Depositors (or any of them) as well as Escrow Agent and Escrow Agent shall
have reasonably concluded that counsel selected by any such Depositor has a
conflict of interest because of the availability of different or additional
defenses to Escrow Agent, Escrow Agent shall have the right to itself defend, or
to select separate counsel to participate in the defense of, such action, suit
or proceeding on its behalf, at the expense of the Depositors; and (iv) the
aforesaid indemnity obligations shall survive the termination of this Escrow
Agreement or the resignation of Escrow Agent. Notwithstanding anything to the
contrary herein, MTNV shall be responsible for, and shall promptly pay to Escrow
Agent when due, an amount equal to 50% of such Loss for which Escrow Agent is
entitled to be indemnified hereunder and Selling Stockholders shall be jointly
and severally responsible for, and shall promptly pay when due, an amount equal
to 50% of such Loss for which Escrow Agent is entitled to be indemnified
hereunder.
2.9 (a) The Depositors jointly may remove Escrow Agent at any time by
giving to Escrow Agent thirty (30) calendar days' prior notice in writing signed
by all Depositors. In such event, Escrow Agent shall promptly account for and
deliver to the successor escrow agent named in such notice the then current
balance of the Escrow Fund, including all investments thereof and
5.
<PAGE>
accrued income thereon. Upon acceptance thereof and of such accounting by such
successor escrow agent, and upon reimbursement to Escrow Agent of all expenses
due to it hereunder through the date of such accounting and delivery, Escrow
Agent, in its capacity as such, shall be released and discharged from all of its
duties and obligations hereunder, but without prejudice to any liability of
Escrow Agent for its bad faith, gross negligence or willful misconduct
hereunder.
(b) Without limiting the foregoing, Escrow Agent (and any successor
escrow agent hereunder) shall have the right at any time to resign as such by
delivering the Escrow Fund to any successor escrow agent jointly designated by
the Depositors in writing, or to any court of competent jurisdiction and the
costs and expenses (including reasonable attorneys' fees and expenses) incurred
by Escrow Agent in connection with such proceeding shall be paid by, and be
deemed an obligation of, the Depositors (with MTNV bearing 50% of such expenses
and Selling Stockholders jointly and severally bearing 50% of such expenses) and
Escrow Agent shall be discharged of and from any and all further obligations
arising in connection with this Escrow Agreement, except for any liability of
Escrow Agent arising out of its bad faith, gross negligence or willful
misconduct hereunder.
(c) The resignation of Escrow Agent will take effect on the earlier
to occur of (i) the appointment of a successor escrow agent (including a court
of competent jurisdiction) or (ii) the date which is thirty (30) days after the
date of delivery of its written notice of resignation to the other parties;
provided, however, that if at that time Escrow Agent has not received a
designation of a successor escrow agent hereunder, Escrow Agent shall continue
to serve as such but its sole responsibility after that time shall be to
safekeep the Escrow Fund until receipt of a designation of successor escrow
agent hereunder or a joint written disposition instruction by the Depositors or
a Final Order.
2.10 (a) In the event of any ambiguity or uncertainty hereunder or in any
notice, instruction or other communication received by Escrow Agent hereunder,
Escrow Agent may, in its sole discretion, refrain from taking any action other
than retaining possession of the Escrow Fund, unless Escrow Agent receives
written instructions, signed by all Depositors, which eliminates such ambiguity
or uncertainty, in which case Escrow Agent shall then take such action in
accordance with such instructions.
(b) Should any dispute arise with respect to the payment, ownership
or right of possession of any proposed disbursement from the Escrow Fund, Escrow
Agent is authorized and directed to retain in its possession, without liability
to anyone, all or any part of such proposed disbursement until such dispute
shall have been settled either by mutual agreement of the parties concerned or
by a Final Order, provided that Escrow Agent shall be under no duty whatsoever
to institute or defend any such proceedings, and, provided further, that if any
such dispute continues for more than forty-five (45) days, Escrow Agent may, in
its discretion, upon written notice to the Depositors, interplead the Escrow
Fund (or that portion thereof which is the subject of such dispute) to a court
of competent jurisdiction (subject to the provisions of Section 7.1(a) hereof).
The costs and expenses (including reasonable attorneys' fees and expenses)
incurred in connection with such proceeding shall be paid by, and shall be
deemed an obligation of, the Depositors (with MTNV bearing 50% of such expenses
and Selling Stockholders jointly and severally bearing 50% of such expenses).
6.
<PAGE>
2.11 (a) For its services hereunder, Escrow Agent shall be entitled to be
paid fees in the amount attached hereto as Exhibit A.
(b) Except as otherwise provided herein, the foregoing fees, together
with the reasonable out-of-pocket expenses incurred by Escrow Agent in
performing its duties under this Escrow Agreement, shall be borne by MTNV.
3. ESTABLISHMENT OF ESCROW FUND
3.1 (a) Simultaneously with the execution of this Agreement, MTNV has
deposited stock certificates registered in the names of Selling Stockholders and
representing the number of shares of the common stock of MTNV ("MTNV COMMON
STOCK") all as set forth in Exhibit B hereto, par value NLG 0.96 each (including
the proceeds thereof that are securities, as applicable, the "ESCROWED SHARES")
in escrow with Escrow Agent and Selling Stockholders have delivered to Escrow
Agent, for deposit in the Escrow Fund, stock powers (executed in blank) covering
the Escrowed Shares. Such Escrowed Shares, and all cash and non-cash dividends
or other distributions paid or payable on or with respect to the Escrowed
Shares, shall be deposited in escrow and shall be held by Escrow Agent in
accordance with the terms of this Escrow Agreement. Any amounts of cash held by
Escrow Agent at any time shall be held by Escrow Agent in a separate,
interest-bearing account with a licensed bank in Singapore established by Escrow
Agent and designated as such pursuant to the terms of this Escrow Agreement and
such amounts shall be invested in accordance with Section 3.1(c) hereof. If at
any time prior to the release of the Escrowed Shares from escrow, there shall be
a merger or consolidation of MTNV with or into another entity and the
then-issued and outstanding MTNV Common Stock is cancelled or exchanged in
connection therewith, then the proceeds thereof (whether in the form of cash,
securities or other property or assets) which a holder of the Escrowed Shares is
entitled to receive, shall be delivered to and held in escrow by Escrow Agent to
the extent that such Escrowed Shares are held in escrow at such time. If at any
time prior to the release of the Escrowed Shares from escrow, there shall occur
a subdivision, combination, conversion or reclassification of the MTNV Common
Stock into a different class or kind of security, then the number and kind of
securities as are issuable to the record holder of the Escrowed Shares as a
result of such change with respect to the MTNV Common Stock shall be delivered
to and held in escrow by Escrow Agent to the extent that such Escrowed Shares
are held in escrow at such time. Any proceeds or securities held in escrow by
Escrow Agent shall be subject to the same escrow arrangements and provisions as
are specified herein for the Escrowed Shares and any securities shall be valued
in like manner as the Escrowed Shares as set forth in Section 4.2(g). All such
Escrowed Shares, property, and/or cash referred to in this Section 3.1(a), less
any property and/or cash distributed or paid in accordance with this Escrow
Agreement, shall constitute the "ESCROW FUND".
(b) Selling Stockholders hereby (i) authorize MTNV to deliver
directly to Escrow Agent all dividends and other distributions made in respect
of any Escrowed Shares held in the Escrow Fund (whether paid in cash, securities
or other property), all of which dividends and distributions shall be added to
and become part of the Escrow Fund, and (ii) agree to deliver to Escrow Agent
such additional stock powers and other instruments of transfer (executed in
blank) as MTNV shall reasonably request from time to time in respect of all
securities and other
7.
<PAGE>
property deposited in the Escrow Fund pursuant to clause (i) of this sentence.
The parties acknowledge and agree that until the Escrowed Shares are released
from escrow to Selling Stockholders or sold pursuant to the Stock Purchase
Agreement and Section 4.3 hereof, Selling Stockholders shall have all rights
with respect thereto (including the right to vote the shares) except that
neither Selling Stockholders, nor any of its affiliates, shall have the right,
directly or indirectly, to sell, assign, pledge, encumber, hypothecate or
otherwise dispose of any such shares or any interest therein (except as
otherwise set forth in the Stock Purchase Agreement or Section 4.3(a) hereof).
(c) With respect to cash on deposit from time to time in the Escrow
Fund, Escrow Agent shall, pursuant to the written direction of Selling
Stockholders, invest such funds, including without limitation, all undistributed
income earned thereon, and shall, pursuant to the written direction of Selling
Stockholders, keep the same invested in certain instruments subject to the
restrictions and limitations hereinafter provided, and shall disburse the same
in accordance with the terms, conditions and provisions hereof. Escrow Agent
shall be instructed to invest the funds solely in an interest-bearing bank
account with a licensed bank in Singapore. Escrow Agent shall have no liability
for any loss arising from or related to any such investment other than in
accordance with Section 2.4(a) hereof.
4. DISPOSITION OF ESCROW FUND
4.1 The Escrow Fund shall be held (and invested and reinvested, as
applicable) by Escrow Agent pursuant to the terms of this Escrow Agreement until
the Escrow Fund is eligible for disbursement in accordance with the terms of
this Escrow Agreement.
4.2 Escrow Agent shall disburse the Escrow Fund, in whole or in part, as
set forth in this Section 4.2.
(a) The Escrow Fund shall be held by Escrow Agent in order to secure
the obligations of Selling Stockholders to indemnify the Indemnitees for any
claims for Damages arising under the Stock Purchase Agreement ("INDEMNITY
CLAIMS").
(b) A copy of any claim notice with respect to Indemnity Claims
("CLAIM NOTICE") submitted by MTNV (or other Indemnitee, as applicable) to
Selling Stockholders pursuant to Section 10.11 of the Stock Purchase Agreement
shall be simultaneously sent by MTNV (or other Indemnitee, as applicable) to
Escrow Agent. Each such Claim Notice shall specify whether an Indemnity Claim is
not subject to the Indemnification Threshold and is thus payable on a
dollar-for-dollar basis without any initial exclusion therefor ("ZERO THRESHOLD
CLAIM") or is subject to the Indemnification Threshold ("NON-ZERO THRESHOLD
CLAIM") and, if the latter, whether the amount of such claim, when combined with
all previous Non-Zero Threshold Claims that have been Definitively Resolved in
favor of Indemnitees, exceeds the indemnification threshold provided in Section
10.3 of the Stock Purchase Agreement ("INDEMNIFICATION THRESHOLD") and shall set
forth an estimated amount of Damages for such claim, which shall include,
without limitation, MTNV's good faith estimate of the costs and expenses
reasonably expected to be incurred by such Indemnitee in investigating and
disposing
8.
<PAGE>
of any such claim. Until they are Definitively Resolved in the manner
hereinafter provided, all unresolved Indemnity Claims shall be referred to
herein as "PENDING CLAIMS".
(c) Following its receipt of a Claim Notice from MTNV (or other
Indemnitee) pursuant to Section 4.2(b), Selling Stockholders shall have sixty
(60) days in which to provide a written notice to MTNV (with a copy to Escrow
Agent) as to whether it wishes to dispute the Indemnity Claim identified in such
Claim Notice, in whole or in part (a "DISPUTE NOTICE"); provided that, if Escrow
Agent has not received a written Dispute Notice from Selling Stockholders within
such sixty (60) day period (the "DISPUTE PERIOD"), then Selling Stockholders
shall be deemed to have consented to the full amount of the claim identified in
such Claim Notice. If, following the delivery of a Claim Notice from MTNV but
prior to the date the relevant indemnification period terminates pursuant to
Section 10.1(a) or (b) of the Stock Purchase Agreement for the claim covered by
such Claim Notice, MTNV determines, in good faith, that the amount of potential
Damages relating to such claim exceeds the estimated Damages initially set forth
in the Claim Notice, then MTNV shall have the right to submit an amended Claim
Notice, with a copy to Escrow Agent, to Selling Stockholders setting forth such
additional amount of estimated Damages. Notwithstanding the foregoing, if such
amended Claim Notice is delivered within the Dispute Period for the claim
relating to such Claim Notice, such Dispute Period shall automatically be
extended for a further thirty (30) days following Selling Stockholders' receipt
of such amended Claim Notice.
(d) For purposes hereof, any Indemnity Claim shall be deemed to have
been "DEFINITIVELY RESOLVED" when any of the following events has occurred:
(i) a claim is settled by mutual written agreement of MTNV and
Selling Stockholders; or
(ii) a final judgment, order or award of a court of competent
jurisdiction or arbitrator deciding such claim has been
rendered, as evidenced by a certified copy of such
judgment, order or award, provided that such judgment,
order or award is not appealable or the time for taking
an appeal has expired; or
(iii) during the Dispute Period Escrow Agent has not received a
written Dispute Notice from Selling Stockholders.
An Indemnity Claim that has been Definitively Resolved shall be referred to
herein as a "SETTLED CLAIM". Escrow Agent shall provide the Payment Notice
contemplated under Section 4.2 (h) with respect to a Indemnity Claim that has
been Definitively Resolved, five (5) business days after Escrow Agent has
received one of the following (a "SETTLEMENT NOTICE"): (A) with respect to
subparagraph (i) above, a copy of joint instructions duly signed by MTNV and
Selling Stockholders stating that a Indemnity Claim has been settled by mutual
written agreement of MTNV and Selling Stockholders; (B) with respect to
subparagraph (ii) above, a certified copy of the final judgment, order or award
of the relevant court or arbitrator, together with a certificate duly signed by
both the prevailing party and its counsel in such proceeding certifying that
such judgment, order or award is final and non-appealable for all purposes
hereof; and (C) with
9.
<PAGE>
respect to subparagraph (iii) above, written confirmation from MTNV to the
effect that MTNV delivered a copy of the relevant Claim Notice to Selling
Stockholders as required under Section 4.2(b) hereof and did not receive any
written Dispute Notice from Selling Stockholders within the aforesaid sixty (60)
day period. Each Settlement Notice shall stipulate the amount of the Settled
Claim described therein, and copies thereof shall be provided to each of the
parties hereunder at the same time it is provided to Escrow Agent. MTNV and
Selling Stockholders hereby acknowledge and agree that Escrow Agent shall have
the right to conclusively rely upon any Settlement Notice duly given jointly by
MTNV and Selling Stockholders under sub-clause (A) in the preceding sentence, by
either of MTNV or Selling Stockholders under sub-clause (B) in the preceding
sentence and by MTNV under sub-clause (C) in the preceding sentence, and shall
be authorized to act upon any such written notice.
(e) To the extent that a Settled Claim has been Definitively Resolved
in favor of MTNV, and as further provided in this Section 4.2(e) or in Section
4.2(h), Escrow Agent shall, following receipt of a Settlement Notice in
accordance with, and subject to the five (5) business days period provided for
in, Section 4.2(d) and following the ten (10) day notice period of Section
4.2(h), disburse the full amount (or the relevant portion, as applicable) of
such Settled Claim to MTNV (or such other person as MTNV shall direct in
writing) from the Escrow Fund as set forth in the Settlement Notice in either
cash or Escrowed Shares. In the event that Escrowed Shares are disbursed to
MTNV, such Escrowed Shares shall be deemed to be returned to MTNV by the Selling
Stockholders and shall be held by MTNV for its own account; PROVIDED FURTHER
THAT for purposes of Netherlands law, the legal basis (TITEL) for any
distribution of the Escrowed Shares (or the proceeds thereof) to MTNV pursuant
to the Purchase Agreement and/or this Agreement shall be deemed to be based on a
partial dissolution of the Purchase Agreement as a preservation of a defective
performance under the Purchase Agreement against a reduction of the purchase
price (BEHOUD VAN EEN ONDEUGDELIJKE PRESTATIE TEGEN VERMINDERING VAN DE
KOOPPRIJS) pursuant to Article 270 of Book 6 of the Netherlands Civil Code
("NCC") and the obligation to undo (ONGEDAANMAKINGSVERPLICHTING) of the Selling
Stockholders pursuant to the Purchase Agreement and Article 271 of Book 6 of the
NCC. For the avoidance of doubt, it is acknowledged and agreed that in the event
that both cash and Escrowed Shares are held in the Escrow Fund as of the date of
such proposed disbursement, then Escrow Agent shall disburse cash or Escrowed
Shares, or some combination thereof, at the election of the Selling
Stockholders, which shall be set forth in the applicable Settlement Notice or
other written notice by the Selling Stockholders to Escrow Agent and MTNV not
less than three (3) business days prior to the date of disbursement specified by
Escrow Agent pursuant to the Payment Notice. Notwithstanding the foregoing, if
the Settled Claim relates to any matter which is a Non-Zero Threshold Claim (as
identified in the relevant Settlement Notice), no amounts shall be disbursed to
MTNV hereunder in respect of such Settled Claim unless and until the amount of
such claim, together with the accumulated amount of all Non-Zero Threshold
Claims exceeds the Indemnification Threshold (i.e., $75,000), and, provided
further, that at such time as the Indemnification Threshold has been exceeded,
all previous withheld payments (if any) in respect of such Settled Claims shall
be distributed to MTNV. For the avoidance of doubt, the parties acknowledge and
agree that all Settled Claims that relate to matters which constitute Zero
Threshold Claims, as identified in the Settlement Notice, shall be immediately
payable by Escrow Agent without regard to the Indemnification Threshold.
Instructions as to the proper treatment of Zero Threshold Claims and Non-Zero
Threshold Claims shall be provided to
10.
<PAGE>
Escrow Agent in each Settlement Notice provided to Escrow Agent pursuant to
Section 4.2(d) above. Escrow Agent shall have the right to conclusively rely
upon any such Settlement Notice and shall have no liability with respect to any
such Settlement Notice.
(f) The Escrow Fund shall continue to be held by Escrow Agent until
the Escrow Termination Date (as defined in Section 6.1) and thereafter, to the
extent provided for herein, until all Pending Claims have been Definitively
Resolved and all amounts with respect to all Settled Claims have been disbursed
in accordance with the terms of this Escrow Agreement. On the Escrow Termination
Date, the following provisions shall apply with respect to the disbursement of
any cash or Escrowed Shares remaining in the Escrow Fund on that date:
(i) To the extent, if any, that cash and/or Escrowed Shares or
non-cash proceeds thereof, as applicable, remaining in the
Escrow Fund on the Escrow Termination Date exceed the total
amount of any then-existing Pending Claims (a "TERMINATION
SURPLUS"), as such amount is set forth in the relevant
Claim Notices, Escrow Agent shall disburse such Termination
Surplus to Selling Stockholders;
(ii) Escrow Agent shall retain cash and/or Escrowed Shares or
other non-cash proceeds thereof, as applicable, in an
amount equal to the remaining Pending Claims as set forth
in the relevant Claim Notices and shall disburse the same
to Selling Stockholders or to MTNV, as applicable, at such
time as such Pending Claims are Definitively Resolved;
(iii) For the avoidance of doubt, it is acknowledged and agreed
that in the event that both cash and Escrowed Shares are
held in the Escrow Fund as of the Escrow Termination Date,
then Escrow Agent shall first retain the cash and then, to
the extent that such cash is an amount less than the amount
of the remaining Pending Claims, such number of Escrowed
Shares as is determined by dividing (i) the aggregate
amount of such Pending Claims less the amount of cash then
in the Escrow Fund by (ii) the Closing Date Price, all as
set forth in a written notice given by MTNV or, if such
notice is not delivered as of the Escrow Termination Date,
as set forth in the relevant Claims Notice relating to such
Claim.
(g) For purposes of this Section 4.2, each Escrowed Share shall be
deemed to have a value equal to US$8.625, representing the Closing Date Price.
(h) Escrow Agent shall provide written notice (the "PAYMENT NOTICE")
to each of the Depositors of any distributions of funds to be made to MTNV or
Selling Stockholders hereunder ten (10) days before making any such
distributions pursuant to Section 4.2(e) or Section 4.2(f), as applicable. In
the event that such notice pertains to a distribution under Section 4.2(e), MTNV
shall within five (5) business days of receipt thereof provide written notice to
Escrow Agent and Selling Stockholders setting forth the number of Escrowed
Shares to be
11.
<PAGE>
disbursed pursuant to Section 4.2(e), which shall equal the sum of (i) the
amount of the relevant Settled Claim less (ii) the amount of any cash available
in the Escrow Fund to satisfy such claim, divided by the Closing Date Price. In
no event shall Escrow Agent be required to calculate the number of Escrowed
Shares to be disbursed pursuant to any provision of this Agreement. For purposes
hereof, such ten (10)-day period shall commence on the date on which the
relevant notice is given by Escrow Agent to MTNV and Selling Stockholders and
shall terminate at midnight on the tenth (10th) day thereafter.
4.3 (a) Notwithstanding anything to the contrary herein, it is
acknowledged and agreed that during the period that the Escrowed Shares are
held in the Escrow Fund, Selling Stockholders shall have the right to sell
any or all of the Escrowed Shares (and upon such sale, the Selling
Stockholders shall no longer be the record and beneficial owner of such
Escrowed Shares, and such Escrowed Shares shall be released from escrow)
PROVIDED THAT:
(i) the Selling Stockholders have notified MTNV at least
five (5) business days prior to the anticipated date of sale of such Escrowed
Shares, of the Selling Stockholders' intention to sell such Escrowed Shares,
and the total number of Escrowed Shares to be sold;
(ii) such Escrowed Shares are covered by an effective
registration statement under the Securities Act, pursuant to Section 5.2 of
the Stock Purchase Agreement or are otherwise transferable pursuant to
Section 4.2 of the Stock Purchase Agreement;
(iii) all proceeds of such sale are in cash and such cash is
delivered immediately upon sale to the escrow account specified herein; and
(iv) such Consideration Shares are not subject to a Payment
Notice as set forth herein (except as otherwise provided in Section
4.2(e)(ii) hereof).
Upon receipt of written notice from MTNV that all such conditions set forth
in this Section 4.3(a) have been met, Escrow Agent shall release the Escrowed
Shares from escrow (and shall deliver such certificates evidencing the
Escrowed Shares pursuant to the agreed-upon procedure, set forth in Section
4.3(b) below) for sale on the sale date. The parties acknowledge and agree
that during the term of this Agreement, the Escrowed Shares shall be deemed
not to have been released from escrow, and shall be available for purposes of
satisfying any Settled Claims, until the consummation of the sale of such
Escrowed Shares, provided further that Selling Stockholders shall, at any
time prior to the consummation of the sale of such Escrowed Shares and if
such Escrowed Shares are not then in possession of Escrow Agent, immediately
upon the request of MTNV with notice to Escrow Agent and at the expense of
Selling Stockholders, do, execute, acknowledge, deliver and file, or shall
cause to be done, executed, acknowledged, delivered and filed, all such
further acts, deeds, transfers, conveyances, assignments or assurances as may
be reasonably requested by MTNV to re-deposit in the Escrow Fund any such
Escrowed Shares as are required to satisfy any Settled Claims.
(b) At least ten (10) business days before the anticipated sale
date, Selling Stockholders and MTNV shall, after prior consultations with
Escrow Agent, jointly provide
12.
<PAGE>
Escrow Agent with written notice (the "PROCEDURE NOTICE") as to the procedure
with respect to: (i) the release of the stock certificates evidencing the
Escrowed Shares from safekeeping by Escrow Agent and delivery by Escrow Agent of
such certificate(s), and any other required documents, agreements or
certificates, to such third-parties as set forth in the Procedure Notice on the
sale date and (ii) the direct deposit of all proceeds of the sale of such
Escrowed Shares into the Escrow Fund. Upon receipt of the Procedure Notice,
Escrow Agent shall establish, as soon as possible but in no event later than
three (3) business days after receipt of such Procedure Notice, an
interest-bearing escrow account (as part of the Escrow Fund) with a licensed
bank in Singapore in which proceeds of the sale of Escrowed Shares are to be
deposited in accordance with Sections 3.1(a) and (c) hereof. For the avoidance
of doubt, it is acknowledged and agreed that the Escrow Agent need not establish
separate accounts for cash distributions on the Escrowed Shares and for the
proceeds of each sale of Escrowed Shares. Subject to Section 2.10 hereof, Escrow
Agent shall use its commercially reasonable efforts to follow the procedure set
forth in the Procedure Notice, and shall use its commercially reasonable efforts
to do, execute, acknowledge, deliver and file, or shall cause to be done,
executed, acknowledged, delivered and filed, at the cost and expense of Selling
Stockholders and MTNV (with MTNV bearing 50% of such cost and Selling
Stockholders jointly and severally bearing 50% of such cost), all such further
acts, agreements, instruments, documents and certificates reasonably necessary
in connection therewith.
4.4 Escrow Agent shall receive signed receipts or other written
confirmation of payment from any party that receives payments from Escrow Agent
hereunder.
5. DISPOSITION OF LNCOME
5.1 All income earned from time to time on the Escrow Fund shall be pooled
with all other funds held in the Escrow Fund for investment purposes. Any loss
realized upon any investment of the Escrow Fund shall be charged to the Escrow
Fund.
6. TERM
6.1 This Escrow Agreement shall become effective on the date hereof and
shall remain in full force and effect until the earlier of the (a) date that the
first post-Closing audit of MTNV that includes Intec is released to the public
as certified in writing by MTNV to the Selling Stockholders and the Escrow
Agent, and (b) November 17, 2001 (the earlier being the "ESCROW TERMINATION
DATE"), except as otherwise provided in Section 4.2(f), or, if occurring sooner,
until the entire Escrow Fund has been disbursed by Escrow Agent pursuant to the
provisions of this Escrow Agreement, whereupon this Escrow Agreement and the
escrow arrangements created hereunder shall terminate, and Escrow Agent shall be
released and discharged from all further duties and obligations hereunder,
except to the extent of any liability of Escrow Agent for its bad faith, gross
negligence or willful misconduct hereunder.
7. MISCELLANEOUS
13.
<PAGE>
7.1 This Agreement shall be construed in accordance with, and governed in
all respects by, the laws of Singapore (without giving effect to principles of
conflicts of laws). All references to days, dates and times shall be to
Singapore time.
7.2 Except as otherwise permitted herein, this Escrow Agreement may be
modified only by a written amendment signed by all the parties hereto, and no
waiver of any provision hereof shall be effective unless expressed in a writing
signed by the party to be charged.
7.3 (a) Any notice, direction, instruction or other communication required
or permitted hereunder shall be given in writing by hand delivery, by registered
or certified first class mail, return receipt requested, postage prepaid, or by
expedited courier service that regularly requires signed receipts evidencing
delivery, in each case addressed to the party to receive the same at its
respective address set forth below, or to such other address as such party may
have designated by notice to the others in accordance with the provisions of
this Section 7.3.
(i) If to MTNV:
1350 Old Bayshore Hwy.
Suite 360
Burlingame, CA 94010
USA
Telephone: +1 650-401-4600
Facsimile: +1 650-373-1135
Attention: Peter V. Leigh
with copies to:
Cooley Godward LLP
Five Palo Alto Square
3000 El Camino Real
Palo Alto, CA 94306-2155
USA
Telephone: +1 650-843-5183
Facsimile: +1 650-849-7000
Attention: Thomas M. Shoesmith
Allen & Gledhill
36 Robinson Road
#18-01 City House
Singapore 068877
Telephone: +65 225-1611
Facsimile: +65 224-1574
Attention: Lee Kim Shin
(ii) If to Selling Stockholders, other than Elite:
Cher Lew Hiong James
14.
<PAGE>
Chia Chiap Heng Basil
Cher Lew Kwang Francis
c/o Intec Technology (S) Pte. Ltd.
12 Little Road #08-01/02
Lian Cheong Industrial Building
Singapore 536986
Telephone: +65 289-0511
Facsimile: +65 289-0522
with copies to:
Drew & Napier
20 Raffles Place #17-00
Ocean Towers
Singapore 048620
Telephone: +65 531-2238
Facsimile: +65 535-4864
Attention: David Ang/Andrew Ang
(iii) If to Elite:
Elite Star Enterprises Pte. Ltd.
61 South Bridge Road
Boon Building #04-00
Singapore 058691
Telephone: +65 535-5233
Facsimile: +65 533-0308
Attention: Tay Siong Suanh
with copies to:
Drew & Napier
20 Raffles Place #17-00
Ocean Towers
Singapore 048620
Telephone: +65 531-2238
Facsimile: +65 535-4864
Attention: David Ang/Andrew Ang
(iv) If to Escrow Agent:
Allen & Gledhill
36 Robinson Road
#18-01 City House
Singapore 068877
Telephone: +65 225-1611
15.
<PAGE>
Facsimile: +65 224-1574
Attention: Lee Kim Shin
Copies of any written communications sent by either of MTNV or Selling
Stockholders to Escrow Agent relating to this Escrow Agreement shall be sent to
the other parties hereto, and copies of any written communications sent by
Escrow Agent relating to this Escrow Agreement shall be sent to MTNV and Selling
Stockholders. Notwithstanding the foregoing, MTNV and Selling Stockholders shall
have the right to engage in direct written communications between themselves
relating to this Escrow Agreement without providing copies thereof to Escrow
Agent, except to the extent otherwise required under the terms of this Escrow
Agreement.
7.4 All notices, directions, instructions and communications hereunder
shall be effective, and deemed given, if hand delivered, on and as of the date
of receipt thereof, as evidenced by a written receipt by or on behalf of the
party to which the same is so delivered, and, if mailed or sent by expedited
courier, on and as of the date of delivery, as evidenced by the acknowledgement
of delivery issued with respect thereto by the applicable postal authorities or
by the confirmation of delivery issued by the applicable courier service.
7.5 The rights and remedies conferred upon the parties hereto shall be
cumulative, and the exercise or waiver of any such right or remedy shall not
preclude or inhibit the exercise of any additional rights or remedies. The
waiver of any right or remedy hereunder shall not preclude the subsequent
exercise of such right or remedy.
7.6 Each Depositor hereby represents and warrants severally, and not
jointly, (a) that this Escrow Agreement has been duly authorized, executed and
delivered on its behalf and constitutes its legal, valid and binding obligation
and (b) that the execution, delivery and performance of this Escrow Agreement by
such Depositor do not and will not violate any applicable law or regulation.
7.7 The invalidity, illegality or unenforceability of any provision of
this Agreement shall in no way affect the validity, legality or enforceability
of any other provision; and if any provision is held to be enforceable as a
matter of law, the other provisions shall not be affected thereby and shall
remain in-full force and effect.
7.8 This Agreement shall constitute the entire agreement of the parties
with respect to the subject matter and supersedes all prior oral or written
agreements in regard thereto.
7.9 This Agreement shall terminate upon the distribution of the Escrow
Fund. The provisions of Sections 2.4, 2.8, 2.11, 7.1, 7.3, 7.8, 7.9 and 7.13
shall survive termination of this Escrow Agreement and/or the resignation or
removal of Escrow Agent.
7.10 No printed or other material in any language, including
prospectuses, notices, reports, and promotional material which mentions
"Allen & Gledhill" by name or the rights, powers, or duties of Escrow Agent
under this Agreement shall be issued by any other party hereto, or on such
party's behalf, without the prior written consent of Escrow Agent.
16.
<PAGE>
7.11 The headings contained in this Agreement are for convenience of
reference only and shall have no effect on the interpretation or operation
hereof. For purposes of this Agreement, and except as otherwise specified, any
fractional number of Escrowed Shares shall be rounded up to the nearest whole
number of shares.
7.12 This Escrow Agreement may be executed by each of the parties
hereto in any number of counterparts, each of which counterpart, when so
executed and delivered, shall be deemed to be an original and all such
counterparts shall together constitute one and the same agreement.
7.13 Escrow Agent shall not have any interest in the Escrow Fund
deposited hereunder but is serving as escrow holder only and having only
possession thereof. The Depositors shall pay or reimburse Escrow Agent upon
request for any transfer taxes or other taxes relating to the Escrow Fund
incurred in connection herewith and shall indemnify and hold harmless Escrow
Agent for any amounts that it is obligated to pay in the way of such taxes
(with MTNV bearing 50% of such expenses and Selling Stockholders jointly and
severally bearing 50% of such expenses). Any payments of income from this
Escrow Fund shall be subject to withholding regulations then in force with
respect to United States taxes. It is understood that Escrow Agent shall be
responsible for income reporting only with respect to income earned on
investment of funds that are a part of the Escrow Fund and is not responsible
for any other reporting. This paragraph shall survive notwithstanding any
termination of this Escrow Agreement or the resignation of Escrow Agent.
7.14 This Escrow Agreement shall inure to the benefit of, and shall be
binding upon, the parties hereto and their respective successors, heirs,
remaindermen, assigns, executors, administrators, personal representatives,
trustees and fiduciaries, as applicable. Escrow Agent shall be entitled, by
notice in writing to the Depositors, to assign its rights and obligations
under this Escrow Agreement to a law corporation established under the laws
of Singapore in connection with the corporatisation of the law practice of
Escrow Agent. Escrow Agent shall have the right to rely upon any proper
evidence of the authority of any such successors, heirs, remaindermen,
assigns, executors, administrators, personal representatives, trustees and
fiduciaries, as applicable. Notwithstanding anything to the contrary herein,
no beneficial interest of any person in the Escrow Fund shall be subject to
anticipation or assignment by such person, nor shall the Escrow Fund be
subject to the interference or control of any creditor of such person, or be
taken or reached by any legal or equitable process in satisfaction of any
debt or other liability of such person prior to disbursement, and each
Depositor hereby agrees to indemnify the other Depositor in connection with
any loss or diminution of such Depositor's interest in the Escrow Fund as a
result of any such matter.
7.15 Except as otherwise set forth herein or agreed by all of the
Depositors hereto, all payments under this Agreement shall be made in U.S.
Dollars. The tender or payment of any amounts payable under this Agreement
(whether or not by recovery under a judgment) in any currency other than U.S.
Dollars shall not novate, satisfy or discharge the obligation of the paying
party to pay in U.S. Dollars all amounts payable by such party. To the extent
that any Indemnity Claim is expressed in Singapore Dollars, the amount of
such claim shall be deemed equal (in U.S. Dollars) to such number of
Singapore Dollars multiplied by the conversion rate of
17.
<PAGE>
Singapore Dollars into U.S. Dollars as published in the ASIAN WALL STREET
JOURNAL as of the business day that is two business days before the date of
the Claim Notice relating to such Indemnity Claim.
7.16 Each of the Depositors hereby acknowledges and agrees that,
notwithstanding the appointment of Allen & Gledhill as the Escrow Agent
hereunder, (i) Allen & Gledhill shall be entitled to act for MTNV and/or its
Affiliates in any claim, action, suit or proceeding by or against the Sellers
arising out of, based upon or related in any manner to, the Stock Purchase
Agreement or any of the Transactional Agreements (but excluding any claim,
action, suit or proceeding by or against the Sellers under this Escrow
Agreement) and each of the Sellers hereby waives any actual or potential
conflict of interest that may exist or arise by reason of Allen & Gledhill so
acting for MTNV and/or its Affiliates.
[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK.]
18.
<PAGE>
IN WITNESS WHEREOF, each of the parties has caused this Escrow
Agreement to be executed by a duly authorized officer as of the day and year
first written above.
METRON TECHNOLOGY N.V.
By:__________________________________
Its:
By:__________________________________
Its:
CHER LEW HIONG JAMES
____________________________________
CHIA CHIAP HENG BASIL
____________________________________
CHER LEW KWANG FRANCIS
____________________________________
ELITE STAR ENTERPRISES PTE. LTD.
By:_________________________________
Its:
ALLEN & GLEDHILL
By:_________________________________
Its:
19.
<PAGE>
EXHIBIT A
ESCROW FEE
FOR
MTNV/INTEC TRANSACTION
NCE AND ADMINISTRATION FEE ..............................S$7,000.00
This one time fee is payable upon closing date and includes:
- Review of Agreement and supporting documents
- Establishment of accounts
- Administration of accounts
- Reporting
TERMS OF ARRANGEMENT
OUT-OF-POCKET
Fees set forth above do not include out-of-pocket expenses such as, but not
limited to, travel, expenses of foreign depositaries, stationery, postage,
telephone, telex, original issue delivery costs and retention of records
which will be billed to MTNV.
MISCELLANEOUS SERVICES
The charges for performing services not contemplated at the time of the
execution of the execution of the Agreement or not specifically covered
elsewhere in this proposal will be determined by appraisal in amounts
commensurate with the service.
20.
<PAGE>
EXHIBIT B
<TABLE>
<CAPTION>
------------------------------------------ ------------------------------------ ----------------------------
SELLER INITIAL SHARE CERTIFICATE # INITIAL NUMBER OF ESCROWED
SHARES/PERCENTAGE
OF AGGREGATE
------------------------------------------ ------------------------------------ ----------------------------
<S> <C> <C>
Elite Star Enterprises (Pte) Ltd. 7,600 / 20%
------------------------------------------ ------------------------------------ ----------------------------
Cher Lew Hiong James 13,300 / 35%
------------------------------------------ ------------------------------------ ----------------------------
Chia Chiap Heng Basil 6,840 / 18%
------------------------------------------ ------------------------------------ ----------------------------
Cher Lew Kwang Francis 10,260 / 27%
------------------------------------------ ------------------------------------ ----------------------------
</TABLE>
21.
<PAGE>
EXHIBIT E
FORMS OF EMPLOYMENT AGREEMENT
<PAGE>
17th November, 2000
Mr Cher Lew Hiong James
42A, Wan Tho Avenue,
Singapore 347604
Dear James
APPOINTMENT AS PRESIDENT
We are pleased to confirm the terms and conditions of your employment as
President of Intec Technology (S) Pte Ltd (the "COMPANY") as follows:-
1. DATE OF COMMENCEMENT
Your employment with the Company shall commence on the date hereof and
shall, subject to the provisions hereinafter contained on earlier termination,
continue for a period of two years from such date and thereafter until
terminated by either party giving to the other not less than six months' prior
notice in writing so as to expire on or at any time after the end of the said
two-year period or six months' salary in lieu thereof.
2. DUTIES
2.1 As President of the Company, you undertake to faithfully and diligently
perform and discharge such duties and exercise such powers in relation to the
businesses of the Company and its related corporations (collectively, the
"GROUP") or any of them as the Board of Directors of the Company shall from time
to time assign to or vest in you.
2.2 In the discharge of your duties and in the exercise of your powers, you
shall observe and comply with all rules, regulations, policies, procedures and
directions from time to time made by the Company and use your best skills and
endeavours and maintain at all times high standards of professionalism,
integrity and efficiency to further the businesses and interests of the Group.
2.3 You shall devote the whole of your time and attention during normal
business hours to the duties of your office and conform to such hours of
<PAGE>
2
work as may from time to time reasonably be required of you without being
entitled to receive any remuneration for work performed outside normal business
hours.
2.4 In pursuance of your duties hereunder, you shall be required from time
to time to perform such services for the related corporations of the Company
without further remuneration (unless otherwise agreed) and accept such offices
in such offices in such related corporations as the Company may from time to
time reasonably require.
3. SALARY AND OTHER BENEFITS
3.1 During the continuance of your employment, you shall be paid:-
(i) during the period commencing from the date hereof and ending
on 31st May, 2001, a salary at the rate of S$9,800 per month;
and
(ii) commencing from 1st June, 2001, a salary at the rate of
S$14,300 per month.
Such monthly salary is based on your annual salary, which includes an
annual wage supplement. Accordingly, you shall not be entitled to be paid any
other annual wage supplement by the Company in addition to such salary. Such
salary shall be payable monthly in arrears, on the last business day of each
month. There shall however be deducted from your salary such amount in respect
of your contribution to the Central Provident Fund, or any other amount the
Company may be entitled to deduct or as may be required by law.
3.2 Your salary shall be subject to periodic review by the Company and
adjusted at the discretion of the Company in accordance with your performance.
Such review shall be conducted at least once during each year of your
employment, generally in the month of February. The first adjustment of your
salary, if any is made, will take effect on 1st March, 2002.
3.3 During the continuance of your employment:-
(i) from the date hereof and ending on 31st May, 2001, you shall
be entitled to a vehicle allowance of S$900 per month,
<PAGE>
3
payable together with your monthly salary; and
(ii) commencing from 1st June, 2001, the Company shall provide you
with the use of a motor car comparable in value to those
provided by Metron Technology (Singapore) Pte Ltd to its
executives of similar seniority. The Company shall reimburse
you for all reasonable maintenance and running expenses,
registration and insurance (including the cost of repairs in
respect of such motor vehicle) upon such expenses and costs
being duly vouched by written evidence, subject however to the
regulations from time to time laid down by Metron Technology
(Singapore) Pte Ltd in respect of such reimbursement and the
use of company motor vehicles. You shall use the motor vehicle
in a responsible and proper manner and shall not do or omit to
do anything which might avoid, or preclude any claim under,
any policy of insurance in respect of the vehicle. You shall
use the motor vehicle for personal use only in accordance with
the regulations from time to time laid down by the Company.
3.4 You shall be reimbursed all approved travelling expenses (other than
travelling expenses incurred in Singapore), hotel expenses and other
out-of-pocket expenses reasonably incurred by you in or about the discharge of
your duties hereunder.
3.5 The Administrative Committee of the Metron Technology Employee Stock
Option Plan (the "STOCK OPTION PLAN") has approved the grant to you, during the
continuance of your employment, of options to purchase 8,800 shares of the
Common Stock of Metron Technology N.V. pursuant to the Stock Option Plan. Such
grant is subject in all respects to the terms of the grant and the terms of the
Stock Option Plan, a copy of which has been provided to you.
4. INCENTIVE BONUS
4.1 During the continuance of your employment, you shall be paid:-
(i) on or before 31st December, 2000, a fixed bonus in the sum of
S$29,400 and a sign-on bonus of not less than S$39,500; and
<PAGE>
4
(ii) on or before 31st July, 2001, the sum equivalent to 9 per
cent. of the amount by which the consolidated pre-tax profits
of the Company and its wholly-owned subsidiary, ECS Industries
Sdn. Bhd., for the 12-month period ending on 31st May, 2001
exceeds S$1,250,000.
4.2 During the continuance of your employment, the Company may (but shall
not obliged to) award you an annual bonus based on:-
(i) the achievement by the Company of enumerated financial
performance objectives (including, but not limited to, profit
as a percentage of revenue ("return on sales") and profit as a
percentage of assets ("return on assets")); and
(ii) the achievement by the Company, or by you, as the case may be,
of specific objectives agreed between the Company and you from
time to time.
In general, you can expect that, if any annual bonus is awarded,
approximately 70 per cent. of such annual bonus will be based on paragraph (i)
above and approximately 30 per cent. of such annual bonus will be based on
paragraph (ii) above. The maximum amount of such annual bonus for any financial
year (if awarded) will generally not exceed 40 per cent. of the sum equivalent
to 12 times your monthly salary specified in Clause 3.1 above. The date of
payment of such annual bonus (if awarded) shall generally be on or before 31st
July of that year, but such date shall be determined solely by the Board of
Directors.
5. LEAVE
5.1 ANNUAL LEAVE
(i) You shall be entitled to annual leave as follows:-
(a) during the period commencing from the date hereof and
ending on 31st May, 2001 - 21 working days; and
(b) for each financial year during the period commencing
from 1st June, 2001 - the number of working days
specified in column (2) below against the number of
<PAGE>
5
years of your service with the Company specified in
column (1) below.
<TABLE>
<CAPTION>
-----------------------------------------------
(1) (2)
-----------------------------------------------
YEARS OF SERVICE NUMBER OF WORKING DAYS
-----------------------------------------------
<S> <C>
1-3 15
-----------------------------------------------
4-5 17
-----------------------------------------------
6-10 21
-----------------------------------------------
more than 10 22
-----------------------------------------------
</TABLE>
(ii) Your leave shall be taken at such time or times as may be
approved by Mr Russ Bird, Worldwide Director of Cleanroom
Products of Metron Technology B.V.. Your leave entitlement
shall be exclusive of Saturdays, Sundays and public holidays
and shall be calculated on a financial year basis and should
be fully consumed by the end of each financial year. If you
are unable to clear your leave entitlement in any financial
year (including, without limitation, your leave entitlement
specified in sub-Clause 5.1(i)(a)), you may carry over a
maximum of half of your annual leave entitlement in that
financial year to the next financial year but you must inform
the Board of Directors and any unused leave in excess half of
your annual leave entitlement in that financial year shall be
forfeited. Should you resign within a financial year, your
entitlement shall be pro-rated accordingly and deductions
against your salary shall be made for excess leave taken.
5.2 SICK LEAVE
You are allowed paid sick leave not exceeding:-
(i) 14 days in each financial year if no hospitalisation is
necessary; and
(ii) 60 days in each financial year if hospitalisation is
necessary.
<PAGE>
6
Sick leave must be supported by a certificate issued by a registered
medical practitioner.
5.3 COMPASSIONATE LEAVE
Compassionate leave may be granted by the Company in accordance with
the policies of the Company in force at the time such leave is granted.
6. INSURANCE
You shall be accommodated under the Company's insurance scheme for its
senior executives and the Company shall be responsible for all premium payable
under such scheme.
7. INTELLECTUAL PROPERTY OWNERSHIP
7.1 The making, creation or discovery (or any participation thereof) of any
Intellectual Property by you during the period of your employment by the Company
(whether capable of being patented, registered or otherwise protected or not and
created, made or discovered in the course of your employment) in connection
with, or in any way affecting or relating to, the business of the Company or
capable of being used or adapted for use therein or in connection therewith
whether now or in the future, shall forthwith be disclosed to the Company and
such Intellectual Property shall belong to and be the absolute property of the
Company and shall not be disclosed or used by you for any purpose other than for
the benefit of the Company.
7.2 You shall, if and whenever required so to do (whether during or after
the termination of your employment), at the expense of the Company do such other
acts, including the execution of all applications, documents, forms,
authorisations, specifications, oaths, formal assignment documents and all other
instruments which may be necessary or which the Company may deem necessary in
any relevant country for securing, perfecting, completing or absolutely vesting
full right, title and
<PAGE>
7
interest to the Intellectual Property in favour of the Company, its successors
and assigns.
7.3 You hereby irrevocably appoint the Company as your attorney with full
power to act in your name and on your behalf in fulfilling all of the
obligations set out in sub-Clause 7.2 above as fully and effectually as you
could do personally.
7.4 For the purpose of this Clause 7, "INTELLECTUAL PROPERTY" shall
include, without limitation, patents, trade and service marks (whether
registered or unregistered), registered or unregistered designs, utility models,
copyrights (including design copyrights) applications for any of the foregoing
and the right to apply for them in any part of the world, discoveries,
creations, inventions or improvements upon or additions to an invention,
confidential information, know-how, and any research effort relating to any of
the foregoing, business names whether registrable or not, moral rights, and any
similar rights in any country.
8. TERMINATION
8.1 Notwithstanding anything contained in this letter agreement to the
contrary, your employment may be terminated forthwith by the Company by summary
notice, without prejudice to any other right or remedy of the Company, if you
shall at any time:-
(i) commit any serious or persistent breach of any of the terms of
your employment; or
(ii) be guilty of any grave misconduct or wilful neglect or gross
negligence in the discharge of your duties; or
(iii) become bankrupt or make any arrangement or composition with
your creditors; or
(iv) become of unsound mind; or
(v) be guilty of insobriety or dishonesty; or
(vi) be discovered to have a criminal record or be convicted of any
criminal offence involving dishonesty, fraud, violence or
moral turpitude.
<PAGE>
8
8.2 Your employment shall not, save as hereinbefore set out in sub-Clause
8.1 above, be subject to termination by notice or otherwise by either the
Company or you prior to the expiry of the two-year period specified in Clause 1
of this letter agreement.
9. EMPLOYEE'S OBLIGATIONS UPON TERMINATION
Upon the termination of your employment hereunder for any reason
whatsoever, you shall:-
(i) immediately deliver up to the Company all documents (including
correspondence, lists of clients, notes, memoranda, plans and
other documents of whatsoever nature), accounts, records,
programs, credit cards, keys and other items of whatsoever
nature or description which may be in your possession or under
your control which relates in any way to the business,
finances or affairs of the Group and no copies of any such
documents as aforesaid or any part thereof shall be retained
by you. For the avoidance of doubt, it is hereby declared that
the property and all such documents as aforesaid shall at all
times be vested in the Company and/or the relevant member of
the Group; and
(ii) at any time thereafter forthwith upon the request of the
Company resign without claims for compensation as a Director
of the Company and from all other offices (if any) held by you
in any member of the Group at the time of such request (to the
extent any of such offices is held by you) and should you fail
to do so the Company is hereby irrevocably authorised to
appoint some person in your name and on your behalf to sign
and do any documents or things which are required to give
effect thereto.
10. CONFLICTS OF DUTY
You shall not, without the Company's prior written consent, during the
continuance of your employment be engaged or interested either directly or
indirectly in any capacity in any trade, business or occupation or in any manner
take part in or lend your name, counsel or assistance to any person in any
capacity whatsoever for any purpose which
<PAGE>
9
would or could reasonably expected to be competitive with the business(es) of
the Group. In this Clause 10, the expression "OCCUPATION" shall include the
holding of any public or private office which in the Company's opinion may
hinder or otherwise interfere with the performance of your duties hereunder.
11. CONFIDENTIALITY AND SECRECY
You shall not, except as authorised or required by your duties, use,
divulge or communicate to any person any trade secret or other confidential
material or information relating to the business(es) of the Group or the
Company's associated companies (or any of them), which have or may hereafter
come to your knowledge during your employment. This restriction shall continue
to apply after the termination of your employment without limit in point of time
but shall cease to apply to information or knowledge which may have come into
the public domain otherwise than through your unauthorised disclosure.
12. NOTICES
Notices must be given by letter or by fax addressed to, in the case of
the Company, its registered office for the time being (with a copy to Metron
Technology, 1350, Old Bayshore Highway, Suite 360, Burlingame, CA 94010-1812,
United States of America) and, in your case, your last known address and any
such notice, given by letter or fax, shall be deemed to have been given at the
time at which the letter or fax would be delivered in the ordinary course of the
post or transmission as the case may be.
13. SURVIVAL
The termination of your employment howsoever arising shall not affect
such of the terms hereof as are expressed to operate or have effect thereafter
and shall be without prejudice to any right of action already accrued to the
Company in respect of any breach or default by you.
14. ENTIRE AGREEMENT
This letter agreement is in substitution for all previous contracts of
service between the Company and you (if any) which shall be deemed to
<PAGE>
10
have been terminated by mutual consent on the date on which this letter
agreement shall be deemed to have commenced.
15. GOVERNING LAW
This letter agreement shall be governed by, and construed in accordance
with, the laws of Singapore.
Please confirm your acceptance of the above terms and conditions of your
employment by signing and returning to us the duplicate copy of this letter.
Yours faithfully
for and on behalf of
Intec Technology (S) Pte Ltd
--------------------
Gregory Claeys
Director
I hereby confirm my acceptance of the above terms and conditions of my
employment.
--------------------
Cher Lew Hiong James
Date: 17th November, 2000
<PAGE>
17th November, 2000
Mr Cher Lew Kwang Francis
103, Ah Hood Road,
#12-07,
Singapore 320103
Dear Francis
APPOINTMENT AS SENIOR OPERATIONS MANAGER, SOUTH ASIA CLEANROOM PRODUCTS
We are pleased to confirm the terms and conditions of your employment as Senior
Operations Manager, South Asia Cleanroom Products of Intec Technology (S) Pte
Ltd (the "COMPANY") as follows:-
1. DATE OF COMMENCEMENT
Your employment with the Company shall commence on the date hereof and
shall, subject to the provisions hereinafter contained on earlier termination,
continue for a period of two years from such date and thereafter until
terminated by either party giving to the other not less than six months' prior
notice in writing so as to expire on or at any time after the end of the said
two-year period or six months' salary in lieu thereof.
2. DUTIES
2.1 As Senior Operations Manager, South Asia Cleanroom Products of the
Company, you undertake to faithfully and diligently perform and discharge such
duties and exercise such powers in relation to the businesses of the Company and
its related corporations (collectively, the "GROUP") or any of them as the Board
of Directors of the Company shall from time to time assign to or vest in you.
2.2 In the discharge of your duties and in the exercise of your powers, you
shall observe and comply with all rules, regulations, policies, procedures and
directions from time to time made by the Company and use your best skills and
endeavours and maintain at all times high standards of professionalism,
integrity and efficiency to further the businesses and interests of the Group.
<PAGE>
2
2.3 You shall devote the whole of your time and attention during normal
business hours to the duties of your office and conform to such hours of work as
may from time to time reasonably be required of you without being entitled to
receive any remuneration for work performed outside normal business hours.
2.4 In pursuance of your duties hereunder, you shall be required from time
to time to perform such services for the related corporations of the Company
without further remuneration (unless otherwise agreed) and accept such offices
in such offices in such related corporations as the Company may from time to
time reasonably require.
3. SALARY AND OTHER BENEFITS
3.1 During the continuance of your employment, you shall be paid:-
(i) during the period commencing from the date hereof and ending
on 31st May, 2001, a salary at the rate of S$7,520 per month;
and
(ii) commencing from 1st June, 2001, a salary at the rate of
S$11,500 per month.
Such monthly salary is based on your annual salary, which includes an
annual wage supplement. Accordingly, you shall not be entitled to be paid any
other annual wage supplement by the Company in addition to such salary. Such
salary shall be payable monthly in arrears, on the last business day of each
month. There shall however be deducted from your salary such amount in respect
of your contribution to the Central Provident Fund, or any other amount the
Company may be entitled to deduct or as may be required by law.
3.2 Your salary shall be subject to periodic review by the Company and
adjusted at the discretion of the Company in accordance with your performance.
Such review shall be conducted at least once during each year of your
employment, generally in the month of February. The first adjustment of your
salary, if any is made, will take effect on 1st March, 2002.
3.3 You shall be entitled to a vehicle allowance of S$900 per month,
payable together with your monthly salary.
<PAGE>
3
3.4 You shall be reimbursed all approved travelling expenses (other than
travelling expenses incurred in Singapore), hotel expenses and other
out-of-pocket expenses reasonably incurred by you in or about the discharge of
your duties hereunder.
3.5 The Administrative Committee of the Metron Technology Employee Stock
Option Plan (the "STOCK OPTION PLAN") has approved the grant to you, during the
continuance of your employment, of options to purchase 8,000 shares of the
Common Stock of Metron Technology N.V. pursuant to the Stock Option Plan. Such
grant is subject in all respects to the terms of the grant and the terms of the
Stock Option Plan, a copy of which has been provided to you.
4. INCENTIVE BONUS
4.1 During the continuance of your employment, you shall be paid:-
(i) on or before 31st December, 2000, a fixed bonus in the sum of
S$22,560 and a sign-on bonus of not less than S$26,000; and
(ii) on or before 31st July, 2001, the sum equivalent to 6 per
cent. of the amount by which the consolidated pre-tax profits
of the Company and its wholly-owned subsidiary, ECS Industries
Sdn. Bhd., for the 12-month period ending on 31st May, 2001
exceeds S$1,250,000.
4.2 During the continuance of your employment, the Company may (but shall
not obliged to) award you an annual bonus based on:-
(i) the achievement by the Company of enumerated financial
performance objectives (including, but not limited to, profit
as a percentage of revenue ("return on sales") and profit as a
percentage of assets ("return on assets")); and
(ii) the achievement by the Company, or by you, as the case may be,
of specific objectives agreed between the Company and you from
time to time.
In general, you can expect that, if any annual bonus is awarded,
approximately 70 per cent. of such annual bonus will be based on paragraph (i)
above and approximately 30 per cent. of such annual bonus will be based on
paragraph (ii) above. The maximum amount of such annual bonus for any financial
year (if awarded) will generally not exceed 40
<PAGE>
4
per cent. of the sum equivalent to 12 times your monthly salary specified in
Clause 3.1 above. The date of payment of such annual bonus (if awarded) shall
generally be on or before 31st July of that year, but such date shall be
determined solely by the Board of Directors.
5. LEAVE
5.1 ANNUAL LEAVE
(i) You shall be entitled to annual leave as follows:-
(a) during the period commencing from the date hereof and
ending on 31st May, 2001 - 23 working days; and
(b) for each financial year during the period commencing
from 1st June, 2001 - the number of working days
specified in column (2) below against the number of
years of your service with the Company specified in
column (1) below.
<TABLE>
<CAPTION>
-----------------------------------------------
(1) (2)
-----------------------------------------------
YEARS OF SERVICE NUMBER OF WORKING DAYS
-----------------------------------------------
<S> <C>
1-3 15
-----------------------------------------------
4-5 17
-----------------------------------------------
6-10 21
-----------------------------------------------
more than 10 22
-----------------------------------------------
</TABLE>
(ii) Your leave shall be taken at such time or times as may be
approved by Mr Cher Lew Hiong James, President of the Company.
Your leave entitlement shall be exclusive of Saturdays,
Sundays and public holidays and shall be calculated on a
financial year basis and should be fully consumed by the end
of each financial year. If you are unable to clear your leave
entitlement in any financial year (including, without
limitation, your leave entitlement specified in sub-Clause
5.1(i)(a)), you may carry over a maximum of half of your
annual leave entitlement in that financial year to the next
<PAGE>
5
financial year but you must inform the Board of Directors and
any unused leave in excess half of your annual leave
entitlement in that financial year shall be forfeited. Should
you resign within a financial year, your entitlement shall be
pro-rated accordingly and deductions against your salary shall
be made for excess leave taken.
5.2 SICK LEAVE
You are allowed paid sick leave not exceeding:-
(i) 14 days in each financial year if no hospitalisation is
necessary; and
(ii) 60 days in each financial year if hospitalisation is
necessary.
Sick leave must be supported by a certificate issued by a registered
medical practitioner.
5.3 COMPASSIONATE LEAVE
Compassionate leave may be granted by the Company in accordance with
the policies of the Company in force at the time such leave is granted.
6. INSURANCE
You shall be accommodated under the Company's insurance scheme for its
senior executives and the Company shall be responsible for all premium payable
under such scheme.
7. INTELLECTUAL PROPERTY OWNERSHIP
7.1 The making, creation or discovery (or any participation thereof) of any
Intellectual Property by you during the period of your employment by the Company
(whether capable of being patented, registered or otherwise protected or not and
created, made or discovered in the course of your employment) in connection
with, or in any way affecting or relating to, the business of the Company or
capable of being used or adapted for use therein or in connection therewith
whether now or in the future, shall forthwith be disclosed to the Company and
such Intellectual Property shall belong to and be the absolute property of the
Company and shall not be
<PAGE>
6
disclosed or used by you for any purpose other than for the benefit of the
Company.
7.2 You shall, if and whenever required so to do (whether during or after
the termination of your employment), at the expense of the Company do such other
acts, including the execution of all applications, documents, forms,
authorisations, specifications, oaths, formal assignment documents and all other
instruments which may be necessary or which the Company may deem necessary in
any relevant country for securing, perfecting, completing or absolutely vesting
full right, title and interest to the Intellectual Property in favour of the
Company, its successors and assigns.
7.3 You hereby irrevocably appoint the Company as your attorney with full
power to act in your name and on your behalf in fulfilling all of the
obligations set out in sub-Clause 7.2 above as fully and effectually as you
could do personally.
7.4 For the purpose of this Clause 7, "INTELLECTUAL PROPERTY" shall
include, without limitation, patents, trade and service marks (whether
registered or unregistered), registered or unregistered designs, utility models,
copyrights (including design copyrights) applications for any of the foregoing
and the right to apply for them in any part of the world, discoveries,
creations, inventions or improvements upon or additions to an invention,
confidential information, know-how, and any research effort relating to any of
the foregoing, business names whether registrable or not, moral rights, and any
similar rights in any country.
8. TERMINATION
8.1 Notwithstanding anything contained in this letter agreement to the
contrary, your employment may be terminated forthwith by the Company by summary
notice, without prejudice to any other right or remedy of the Company, if you
shall at any time:-
(i) commit any serious or persistent breach of any of the terms of
your employment; or
(ii) be guilty of any grave misconduct or wilful neglect or gross
negligence in the discharge of your duties; or
(iii) become bankrupt or make any arrangement or composition with
your creditors; or
<PAGE>
7
(iv) become of unsound mind; or
(v) be guilty of insobriety or dishonesty; or
(vi) be discovered to have a criminal record or be convicted of any
criminal offence involving dishonesty, fraud, violence or
moral turpitude.
8.2 Your employment shall not, save as hereinbefore set out in sub-Clause
8.1 above, be subject to termination by notice or otherwise by either the
Company or you prior to the expiry of the two-year period specified in Clause 1
of this letter agreement.
9. EMPLOYEE'S OBLIGATIONS UPON TERMINATION
Upon the termination of your employment hereunder for any reason
whatsoever, you shall:-
(i) immediately deliver up to the Company all documents (including
correspondence, lists of clients, notes, memoranda, plans and
other documents of whatsoever nature), accounts, records,
programs, credit cards, keys and other items of whatsoever
nature or description which may be in your possession or under
your control which relates in any way to the business,
finances or affairs of the Group and no copies of any such
documents as aforesaid or any part thereof shall be retained
by you. For the avoidance of doubt, it is hereby declared that
the property and all such documents as aforesaid shall at all
times be vested in the Company and/or the relevant member of
the Group; and
(ii) at any time thereafter forthwith upon the request of the
Company resign without claims for compensation as a Director
of the Company (if applicable) and from all other offices (if
any) held by you in any member of the Group at the time of
such request (to the extent any of such offices is held by
you) and should you fail to do so the Company is hereby
irrevocably authorised to appoint some person in your name and
on your behalf to sign and do any documents or things which
are required to give effect thereto.
<PAGE>
8
10. CONFLICTS OF DUTY
You shall not, without the Company's prior written consent, during the
continuance of your employment be engaged or interested either directly or
indirectly in any capacity in any trade, business or occupation or in any manner
take part in or lend your name, counsel or assistance to any person in any
capacity whatsoever for any purpose which would or could reasonably expected to
be competitive with the business(es) of the Group. In this Clause 10, the
expression "OCCUPATION" shall include the holding of any public or private
office which in the Company's opinion may hinder or otherwise interfere with the
performance of your duties hereunder.
11. CONFIDENTIALITY AND SECRECY
You shall not, except as authorised or required by your duties, use,
divulge or communicate to any person any trade secret or other confidential
material or information relating to the business(es) of the Group or the
Company's associated companies (or any of them), which have or may hereafter
come to your knowledge during your employment. This restriction shall continue
to apply after the termination of your employment without limit in point of time
but shall cease to apply to information or knowledge which may have come into
the public domain otherwise than through your unauthorised disclosure.
12. NOTICES
Notices must be given by letter or by fax addressed to, in the case of
the Company, its registered office for the time being (with a copy to Metron
Technology, 1350, Old Bayshore Highway, Suite 360, Burlingame, CA 94010-1812,
United States of America) and, in your case, your last known address and any
such notice, given by letter or fax, shall be deemed to have been given at the
time at which the letter or fax would be delivered in the ordinary course of the
post or transmission as the case may be.
13. SURVIVAL
The termination of your employment howsoever arising shall not affect
such of the terms hereof as are expressed to operate or have effect thereafter
and shall be without prejudice to any right of action already accrued to the
Company in respect of any breach or default by you.
<PAGE>
9
14. ENTIRE AGREEMENT
This letter agreement is in substitution for all previous contracts of
service between the Company and you (if any) which shall be deemed to have been
terminated by mutual consent on the date on which this letter agreement shall be
deemed to have commenced.
15. GOVERNING LAW
This letter agreement shall be governed by, and construed in accordance
with, the laws of Singapore.
Please confirm your acceptance of the above terms and conditions of your
employment by signing and returning to us the duplicate copy of this letter.
Yours faithfully
for and on behalf of
Intec Technology (S) Pte Ltd
----------------------
Cher Lew Hiong James
President and Director
I hereby confirm my acceptance of the above terms and conditions of my
employment.
----------------------
Cher Lew Kwang Francis
Date: 17th November, 2000
<PAGE>
17th November, 2000
Mr Chia Chiap Heng Basil
485, Yio Chu Kang Road,
#04-07,
Singapore 787058
Dear Basil
APPOINTMENT AS SENIOR SALES MANAGER, SOUTH ASIA CLEANROOM PRODUCTS
We are pleased to confirm the terms and conditions of your employment as Senior
Sales Manager, South Asia Cleanroom Products of Intec Technology (S) Pte Ltd
(the "COMPANY") as follows:-
1. DATE OF COMMENCEMENT
Your employment with the Company shall commence on the date hereof and
shall, subject to the provisions hereinafter contained on earlier termination,
continue for a period of two years from such date and thereafter until
terminated by either party giving to the other not less than six months' prior
notice in writing so as to expire on or at any time after the end of the said
two-year period or six months' salary in lieu thereof.
2. DUTIES
2.1 As Senior Sales Manager, South Asia Cleanroom Products of the Company,
you undertake to faithfully and diligently perform and discharge such duties and
exercise such powers in relation to the businesses of the Company and its
related corporations (collectively, the "GROUP") or any of them as the Board of
Directors of the Company shall from time to time assign to or vest in you.
2.2 In the discharge of your duties and in the exercise of your powers, you
shall observe and comply with all rules, regulations, policies, procedures and
directions from time to time made by the Company and use your best skills and
endeavours and maintain at all times high standards of professionalism,
integrity and efficiency to further the businesses and interests of the Group.
<PAGE>
2
2.3 You shall devote the whole of your time and attention during normal
business hours to the duties of your office and conform to such hours of work as
may from time to time reasonably be required of you without being entitled to
receive any remuneration for work performed outside normal business hours.
2.4 In pursuance of your duties hereunder, you shall be required from time
to time to perform such services for the related corporations of the Company
without further remuneration (unless otherwise agreed) and accept such offices
in such offices in such related corporations as the Company may from time to
time reasonably require.
3. SALARY AND OTHER BENEFITS
3.1 During the continuance of your employment, you shall be paid:-
(i) during the period commencing from the date hereof and ending
on 31st May, 2001, a salary at the rate of S$6,800 per month;
and
(ii) commencing from 1st June, 2001, a salary at the rate of
S$10,800 per month.
Such monthly salary is based on your annual salary, which includes an
annual wage supplement. Accordingly, you shall not be entitled to be paid any
other annual wage supplement by the Company in addition to such salary. Such
salary shall be payable monthly in arrears, on the last business day of each
month. There shall however be deducted from your salary such amount in respect
of your contribution to the Central Provident Fund, or any other amount the
Company may be entitled to deduct or as may be required by law.
3.2 Your salary shall be subject to periodic review by the Company and
adjusted at the discretion of the Company in accordance with your performance.
Such review shall be conducted at least once during each year of your
employment, generally in the month of February. The first adjustment of your
salary, if any is made, will take effect on 1st March, 2002.
3.3 You shall be entitled to a vehicle allowance of S$900 per month,
payable together with your monthly salary.
<PAGE>
3
3.4 You shall be reimbursed all approved travelling expenses (other than
travelling expenses incurred in Singapore), hotel expenses and other
out-of-pocket expenses reasonably incurred by you in or about the discharge of
your duties hereunder.
3.5 The Administrative Committee of the Metron Technology Employee Stock
Option Plan (the "STOCK OPTION PLAN") has approved the grant to you, during the
continuance of your employment, of options to purchase 7,000 shares of the
Common Stock of Metron Technology N.V. pursuant to the Stock Option Plan. Such
grant is subject in all respects to the terms of the grant and the terms of the
Stock Option Plan, a copy of which has been provided to you.
4. INCENTIVE BONUS
4.1 During the continuance of your employment, you shall be paid:-
(i) on or before 31st December, 2000, a fixed bonus in the sum of
S$20,400 and a sign-on bonus of not less than S$19,000; and
(ii) on or before 31st July, 2001, the sum equivalent to 5 per
cent. of the amount by which the consolidated pre-tax profits
of the Company and its wholly-owned subsidiary, ECS Industries
Sdn. Bhd., for the 12-month period ending on 31st May, 2001
exceeds S$1,250,000.
4.2 During the continuance of your employment, the Company may (but shall
not obliged to) award you an annual bonus based on:-
(i) the achievement by the Company of enumerated financial
performance objectives (including, but not limited to, profit
as a percentage of revenue ("return on sales") and profit as a
percentage of assets ("return on assets")); and
(ii) the achievement by the Company, or by you, as the case may be,
of specific objectives agreed between the Company and you from
time to time.
In general, you can expect that, if any annual bonus is awarded,
approximately 70 per cent. of such annual bonus will be based on paragraph (i)
above and approximately 30 per cent. of such annual bonus will be based on
paragraph (ii) above. The maximum amount of such annual bonus for any financial
year (if awarded) will generally not exceed 40
<PAGE>
4
per cent. of the sum equivalent to 12 times your monthly salary specified in
Clause 3.1 above. The date of payment of such annual bonus (if awarded) shall
generally be on or before 31st July of that year, but such date shall be
determined solely by the Board of Directors.
5. LEAVE
5.1 ANNUAL LEAVE
(i) You shall be entitled to annual leave as follows:-
(a) during the period commencing from the date hereof and
ending on 31st May, 2001 - 23 working days; and
(b) for each financial year during the period commencing
from 1st June, 2001 - the number of working days
specified in column (2) below against the number of
years of your service with the Company specified in
column (1) below.
<TABLE>
<CAPTION>
-----------------------------------------------
(1) (2)
-----------------------------------------------
YEARS OF SERVICE NUMBER OF WORKING DAYS
-----------------------------------------------
<S> <C>
1-3 15
-----------------------------------------------
4-5 17
-----------------------------------------------
6-10 21
-----------------------------------------------
more than 10 22
-----------------------------------------------
</TABLE>
(ii) Your leave shall be taken at such time or times as may be
approved by Mr Cher Lew Hiong James, President of the Company.
Your leave entitlement shall be exclusive of Saturdays,
Sundays and public holidays and shall be calculated on a
financial year basis and should be fully consumed by the end
of each financial year. If you are unable to clear your leave
entitlement in any financial year (including, without
limitation, your leave entitlement specified in sub-Clause
5.1(i)(a)), you may carry over a maximum of half of your
annual leave entitlement in that financial year to the next
<PAGE>
5
financial year but you must inform the Board of Directors and
any unused leave in excess half of your annual leave
entitlement in that financial year shall be forfeited. Should
you resign within a financial year, your entitlement shall be
pro-rated accordingly and deductions against your salary shall
be made for excess leave taken.
5.2 SICK LEAVE
You are allowed paid sick leave not exceeding:-
(i) 14 days in each financial year if no hospitalisation is
necessary; and
(ii) 60 days in each financial year if hospitalisation is
necessary.
Sick leave must be supported by a certificate issued by a registered
medical practitioner.
5.3 COMPASSIONATE LEAVE
Compassionate leave may be granted by the Company in accordance with
the policies of the Company in force at the time such leave is granted.
6. INSURANCE
You shall be accommodated under the Company's insurance scheme for its
senior executives and the Company shall be responsible for all premium payable
under such scheme.
7. INTELLECTUAL PROPERTY OWNERSHIP
7.1 The making, creation or discovery (or any participation thereof) of any
Intellectual Property by you during the period of your employment by the Company
(whether capable of being patented, registered or otherwise protected or not and
created, made or discovered in the course of your employment) in connection
with, or in any way affecting or relating to, the business of the Company or
capable of being used or adapted for use therein or in connection therewith
whether now or in the future, shall forthwith be disclosed to the Company and
such Intellectual Property shall belong to and be the absolute property of the
Company and shall not be
<PAGE>
6
disclosed or used by you for any purpose other than for the benefit of the
Company.
7.2 You shall, if and whenever required so to do (whether during or after
the termination of your employment), at the expense of the Company do such other
acts, including the execution of all applications, documents, forms,
authorisations, specifications, oaths, formal assignment documents and all other
instruments which may be necessary or which the Company may deem necessary in
any relevant country for securing, perfecting, completing or absolutely vesting
full right, title and interest to the Intellectual Property in favour of the
Company, its successors and assigns.
7.3 You hereby irrevocably appoint the Company as your attorney with full
power to act in your name and on your behalf in fulfilling all of the
obligations set out in sub-Clause 7.2 above as fully and effectually as you
could do personally.
7.4 For the purpose of this Clause 7, "INTELLECTUAL PROPERTY" shall
include, without limitation, patents, trade and service marks (whether
registered or unregistered), registered or unregistered designs, utility models,
copyrights (including design copyrights) applications for any of the foregoing
and the right to apply for them in any part of the world, discoveries,
creations, inventions or improvements upon or additions to an invention,
confidential information, know-how, and any research effort relating to any of
the foregoing, business names whether registrable or not, moral rights, and any
similar rights in any country.
8. TERMINATION
8.1 Notwithstanding anything contained in this letter agreement to the
contrary, your employment may be terminated forthwith by the Company by summary
notice, without prejudice to any other right or remedy of the Company, if you
shall at any time:-
(i) commit any serious or persistent breach of any of the terms of
your employment; or
(ii) be guilty of any grave misconduct or wilful neglect or gross
negligence in the discharge of your duties; or
(iii) become bankrupt or make any arrangement or composition with
your creditors; or
<PAGE>
7
(iv) become of unsound mind; or
(v) be guilty of insobriety or dishonesty; or
(vi) be discovered to have a criminal record or be convicted of any
criminal offence involving dishonesty, fraud, violence or
moral turpitude.
8.2 Your employment shall not, save as hereinbefore set out in sub-Clause
8.1 above, be subject to termination by notice or otherwise by either the
Company or you prior to the expiry of the two-year period specified in Clause 1
of this letter agreement.
9. EMPLOYEE'S OBLIGATIONS UPON TERMINATION
Upon the termination of your employment hereunder for any reason
whatsoever, you shall:-
(i) immediately deliver up to the Company all documents (including
correspondence, lists of clients, notes, memoranda, plans and
other documents of whatsoever nature), accounts, records,
programs, credit cards, keys and other items of whatsoever
nature or description which may be in your possession or under
your control which relates in any way to the business,
finances or affairs of the Group and no copies of any such
documents as aforesaid or any part thereof shall be retained
by you. For the avoidance of doubt, it is hereby declared that
the property and all such documents as aforesaid shall at all
times be vested in the Company and/or the relevant member of
the Group; and
(ii) at any time thereafter forthwith upon the request of the
Company resign without claims for compensation as a Director
of the Company (if applicable) and from all other offices (if
any) held by you in any member of the Group at the time of
such request (to the extent any of such offices is held by
you) and should you fail to do so the Company is hereby
irrevocably authorised to appoint some person in your name and
on your behalf to sign and do any documents or things which
are required to give effect thereto.
<PAGE>
8
10. CONFLICTS OF DUTY
You shall not, without the Company's prior written consent, during the
continuance of your employment be engaged or interested either directly or
indirectly in any capacity in any trade, business or occupation or in any manner
take part in or lend your name, counsel or assistance to any person in any
capacity whatsoever for any purpose which would or could reasonably expected to
be competitive with the business(es) of the Group. In this Clause 10, the
expression "OCCUPATION" shall include the holding of any public or private
office which in the Company's opinion may hinder or otherwise interfere with the
performance of your duties hereunder.
11. CONFIDENTIALITY AND SECRECY
You shall not, except as authorised or required by your duties, use,
divulge or communicate to any person any trade secret or other confidential
material or information relating to the business(es) of the Group or the
Company's associated companies (or any of them), which have or may hereafter
come to your knowledge during your employment. This restriction shall continue
to apply after the termination of your employment without limit in point of time
but shall cease to apply to information or knowledge which may have come into
the public domain otherwise than through your unauthorised disclosure.
12. NOTICES
Notices must be given by letter or by fax addressed to, in the case of
the Company, its registered office for the time being (with a copy to Metron
Technology, 1350, Old Bayshore Highway, Suite 360, Burlingame, CA 94010-1812,
United States of America) and, in your case, your last known address and any
such notice, given by letter or fax, shall be deemed to have been given at the
time at which the letter or fax would be delivered in the ordinary course of the
post or transmission as the case may be.
13. SURVIVAL
The termination of your employment howsoever arising shall not affect
such of the terms hereof as are expressed to operate or have effect thereafter
and shall be without prejudice to any right of action already accrued to the
Company in respect of any breach or default by you.
<PAGE>
9
14. ENTIRE AGREEMENT
This letter agreement is in substitution for all previous contracts of
service between the Company and you (if any) which shall be deemed to have been
terminated by mutual consent on the date on which this letter agreement shall be
deemed to have commenced.
15. GOVERNING LAW
This letter agreement shall be governed by, and construed in accordance
with, the laws of Singapore.
Please confirm your acceptance of the above terms and conditions of your
employment by signing and returning to us the duplicate copy of this letter.
Yours faithfully
for and on behalf of
Intec Technology (S) Pte Ltd
---------------------
Cher Lew Hiong James
President and Director
I hereby confirm my acceptance of the above terms and conditions of my
employment.
---------------------
Chia Chiap Heng Basil
Date: 17th November, 2000
<PAGE>
EXHIBIT F
FORM OF NONCOMPETITION AGREEMENT
THIS NONCOMPETITION AGREEMENT is being executed and delivered as of
November 17, 2000 by ______________ (the "Shareholder") in favor of, and for
the benefit of Metron Technology N.V., a corporation organized under the laws
of the Netherlands ("MTNV"); Intec Technology (S) Pte Ltd., a private company
limited by shares incorporated under the laws of Singapore ("Intec"); and the
other "Indemnitees" (as hereinafter defined). Certain capitalized terms used
in this Noncompetition Agreement are defined in Section XIX.
RECITALS
A. As a shareholder, director and employee of Intec, the Shareholder
has obtained extensive and valuable knowledge and confidential information
concerning the businesses of Intec and its subsidiaries. (Intec and its
subsidiaries are referred to collectively herein as the "Acquired Companies.")
B. Pursuant to a Stock Purchase Agreement dated as of November 17,
2000 among MTNV, the Shareholder and the other shareholders of Intec (the
"Stock Purchase Agreement"), Intec's shareholders are selling all of the
issued shares in the capital of Intec to MTNV contemporaneously with the
execution and delivery of this Noncompetition Agreement. As a result of
MTNV's acquisition of all of the issued shares in the capital of Intec, the
Acquired Companies will become subsidiaries of MTNV.
C. In connection with the acquisition by MTNV of all of the issued
shares in the capital of Intec pursuant to the Stock Purchase Agreement (and
as a condition to the consummation of such acquisition), and to enable MTNV
to secure more fully the benefits of such acquisition, MTNV has required that
the Shareholder enter into this Noncompetition Agreement; and the Shareholder
is entering into this Noncompetition Agreement in order to induce MTNV to
consummate the acquisition contemplated by the Stock Purchase Agreement.
D. Intec and the Shareholder are executing an Employment Agreement
(the "Employment Agreement") contemporaneously with the execution and
delivery of this Noncompetition Agreement. Pursuant to the Employment
Agreement, the Shareholder will become a key employee of Intec and will
accordingly obtain extensive and valuable knowledge and confidential
information concerning the businesses of MTNV and the Acquired Companies.
E. MTNV and the Acquired Companies have conducted and are conducting
their respective businesses on a national and international basis.
1.
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AGREEMENT
In order to induce MTNV to consummate the transactions contemplated by
the Stock Purchase Agreement, and for other good and valuable consideration,
the Shareholder agrees as follows:
I. RESTRICTION ON COMPETITION. The Shareholder agrees that, during the
Noncompetition Period, the Shareholder shall not, and shall not permit
any of his Affiliates to:
(a) engage directly or indirectly in Competition in any Restricted
Territory; or
(b) directly or indirectly be or become an officer, director,
shareholder, owner, co-owner, Affiliate, partner, promoter,
employee, agent, representative, designer, consultant, advisor,
manager, licensor, sublicensor, licensee or sublicensee of, for
or to, or otherwise be or become associated with or acquire or
hold (of record, beneficially or otherwise) any direct or
indirect interest in, any Person that engages directly or
indirectly in Competition in any Restricted Territory;
PROVIDED, HOWEVER, that the Shareholder may, without violating this
Section I, own, as a passive investment, shares in the capital of a
publicly-held corporation that engages in Competition if (i) such shares are
actively traded on an established internationally recognized securities
market, and (ii) the number of shares of such corporation's capital that are
owned beneficially (directly or indirectly) by the Shareholder and the number
of shares of such corporation's capital that are owned beneficially (directly
or indirectly) by the Shareholder's Affiliates collectively represent less
than one percent of the total number of shares of such corporation's capital
outstanding.
II. NO HIRING OR SOLICITATION OF EMPLOYEES. The Shareholder agrees that,
during the Noncompetition Period, the Shareholder shall not, and shall
not permit any of his Affiliates to: (a) hire any Specified Employee,
or (b) directly or indirectly, personally or through others, encourage,
induce, attempt to induce, solicit or attempt to solicit (on the
Shareholder's own behalf or on behalf of any other Person) any
Specified Employee to leave his or her employment with MTNV, any of the
Acquired Companies or any of MTNV's other subsidiaries. (For purposes
of this Section II, "Specified Employee" shall mean any individual who
(i) is or was a managerial or executive employee of any of the Acquired
Companies on the date of this Noncompetition Agreement or during the
180-day period ending on the date of this Noncompetition Agreement, and
(ii) remains or becomes an employee of MTNV, any of the Acquired
Companies or any of MTNV's other subsidiaries on the date of this
Noncompetition Agreement or at any time during the Noncompetition
Period.)
III. CONFIDENTIALITY. The Shareholder agrees that he shall hold all
Confidential Information in strict confidence and shall not at any time
(whether during or after the Noncompetition Period): (a) reveal, report,
publish, disclose or transfer any Confidential Information to any Person
(other than MTNV or Intec), except in the performance of his obligations
under the Employment Agreement; (b) use any Confidential Information for
any purpose, except in the performance of his obligations under the
Employment Agreement; or
2.
<PAGE>
(c) use any Confidential Information for the benefit of any Person (other
than MTNV or Intec).
IV. REPRESENTATIONS AND WARRANTIES. The Shareholder represents and
warrants, to and for the benefit of the Indemnitees, that: (a) he has
full power and capacity to execute and deliver, and to perform all of
his obligations under, this Noncompetition Agreement; and (b) neither
the execution and delivery of this Noncompetition Agreement nor the
performance of this Noncompetition Agreement will result directly or
indirectly in a violation or breach of (i) any agreement or obligation
by which the Shareholder or any of his Affiliates is or may be bound,
or (ii) any law, rule or regulation. The Shareholder's representations
and warranties shall survive the expiration of the Noncompetition
Period for a period of eighteen months thereafter.
V. SPECIFIC PERFORMANCE. The Shareholder acknowledges and agrees that, in
the event of any breach or threatened breach by the Shareholder of any
covenant or obligation contained in this Noncompetition Agreement, each
of MTNV, Intec and the other Indemnitees may suffer immediate and
irrevocable harm for which damages would be an inadequate remedy, and
accordingly each of MTNV, Intec and the other Indemnitees shall be
entitled (in addition to any other remedy that may be available to it)
to seek and obtain (a) a decree or order of specific performance to
enforce the observance and performance of such covenant or obligation,
and (b) an injunction restraining such breach or threatened breach. The
Shareholder further agrees that no Indemnitee shall be required to
obtain, furnish or post any bond or similar instrument in connection
with or as a condition to obtaining any remedy referred to in this
Section V, and the Shareholder irrevocably waives any right he may have
to require any Indemnitee to obtain, furnish or post any such bond or
similarly instrument.
VI. INDEMNIFICATION. Without in any way limiting any of the rights or
remedies otherwise available to any of the Indemnitees, the Shareholder
shall indemnify and hold harmless each Indemnitee against and from any
loss, damage, injury, harm, detriment, lost opportunity, liability,
exposure, claim, demand, settlement, judgment, award, fine, penalty,
tax, fee (including attorneys' fees), charge or expense (whether or not
relating to any third-party claim) that is suffered or incurred at any
time (whether during or after the Noncompetition Period) by such
Indemnitee, or to which such Indemnitee otherwise becomes subject at
any time (whether during or after the Noncompetition Period), and that
arises out of or by virtue of, or relates to (a) any inaccuracy in or
breach of any representation or warranty contained in this
Noncompetition Agreement, or (b) any failure on the part of the
Shareholder to observe, perform or abide by, or any other breach of,
any restriction, covenant, obligation or other provision contained in
this Noncompetition Agreement.
VII. NON-EXCLUSIVITY. The rights and remedies of MTNV, Intec and the other
Indemnitees under this Noncompetition Agreement are not exclusive of or
limited by any other rights or remedies which they may have, whether at
law, in equity, by contract or otherwise, all of which shall be
cumulative (and not alternative). Without limiting the generality of
the foregoing, the rights and remedies of MTNV, Intec and the other
Indemnitees under this Noncompetition Agreement, and the obligations
and liabilities of the Shareholder under
3.
<PAGE>
this Noncompetition Agreement, are in addition to their respective
rights, remedies, obligations and liabilities under the law of unfair
competition, under laws relating to misappropriation of trade secrets,
under other laws and common law requirements and under all applicable
rules and regulations. Nothing in this Noncompetition Agreement shall
limit any of the Shareholder's obligations, or the rights or remedies
of MTNV, Intec or any of the other Indemnitees, under the Stock
Purchase Agreement or the Employment Agreement; and nothing in the
Stock Purchase Agreement or the Employment Agreement shall limit any of
the Shareholder's obligations, or any of the rights or remedies of
MTNV, Intec, or any of the other Indemnitees, under this Noncompetition
Agreement.
VIII. SEVERABILITY. If any provision of this Noncompetition Agreement or any
part of any such provision is held under any circumstances to be invalid
or unenforceable in any jurisdiction, then (a) such provision or part
thereof shall, with respect to such circumstances and in such
jurisdiction, be deemed amended to conform to applicable laws so as to be
valid and enforceable to the fullest possible extent, (b) the invalidity
or unenforceability of such provision or part thereof under such
circumstances and in such jurisdiction shall not affect the validity or
enforceability of such provision or part thereof under any other
circumstances or in any other jurisdiction, and (c) the invalidity or
unenforceability of such provision or part thereof shall not affect the
validity or enforceability of the remainder of such provision or the
validity or enforceability of any other provision of this Noncompetition
Agreement. Each provision of this Noncompetition Agreement is separable
from every other provision of this Noncompetition Agreement, and each part
of each provision of this Noncompetition Agreement is separable from every
other part of such provision.
IX. GOVERNING LAW; VENUE.
(c) This Noncompetition Agreement shall be construed in accordance
with, and governed in all respects by, the laws of Singapore (without giving
effect to principles of conflicts of laws).
(d) Any legal action or other legal proceeding relating to this
Noncompetition Agreement or the enforcement of any provision of this
Noncompetition Agreement may be brought or otherwise commenced in any court
located in Singapore. The Shareholder:
(i) expressly and irrevocably consents and submits to the
jurisdiction of each court located in Singapore, in connection with any
such legal proceeding;
(ii) agrees that service of any process, summons, notice or
document by mail addressed to him at the address set forth on the signature
page of this Noncompetition Agreement shall constitute effective service of
such process, summons, notice or document for purposes of any such legal
proceeding;
(iii) agrees that each court located in Singapore shall be deemed
to be a convenient forum; and
(iv) agrees not to assert (by way of motion, as a defense or
otherwise), in any such legal proceeding commenced in any court located in
Singapore, any claim
4.
<PAGE>
that the Shareholder is not subject personally to the jurisdiction of
such court, that such legal proceeding has been brought in an
inconvenient forum, that the venue of such proceeding is improper or that
this Noncompetition Agreement or the subject matter of this
Noncompetition Agreement may not be enforced in or by such court.
Nothing contained in this Section IX shall be deemed to limit or otherwise
affect the right of any Indemnitee to commence any legal proceeding or otherwise
proceed against the Shareholder in any other forum or jurisdiction.
X. WAIVER. No failure on the part of MTNV, Intec or any other Indemnitee to
exercise any power, right, privilege or remedy under this Noncompetition
Agreement, and no delay on the part of MTNV, Intec or any other Indemnitee
in exercising any power, right, privilege or remedy under this
Noncompetition 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. No Indemnitee
shall be deemed to have waived any claim of such Indemnitee arising out of
this Noncompetition Agreement, or any power, right, privilege or remedy of
such Indemnitee under this Noncompetition 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
Indemnitee; and any such waiver shall not be applicable or have any effect
except in the specific instance in which it is given.
XI. SUCCESSORS AND ASSIGNS. Each of MTNV, Intec and the other Indemnitees may
freely assign any or all of its rights under this Noncompetition
Agreement, at any time, in whole or in part, to any of its subsidiaries or
successors without obtaining the consent or approval of the Shareholder or
of any other Person, provided that such subsidiary or successor has
succeeded to substantially all of the business of Intec. This
Noncompetition Agreement shall be binding upon the Shareholder and his
heirs, executors, estate, personal representatives, successors and
assigns, and shall inure to the benefit of MTNV, Intec and the other
Indemnitees.
XII. FURTHER ASSURANCES. The Shareholder shall (at the Shareholder's sole
expense) execute and/or cause to be delivered to each Indemnitee such
instruments and other documents, and shall (at the Shareholder's sole
expense) take such other actions, as such Indemnitee may reasonably
request at any time (whether during or after the Noncompetition Period)
for the purpose of carrying out or evidencing any of the provisions of
this Noncompetition Agreement.
XIII. ATTORNEYS' FEES. If any legal action or other legal proceeding relating to
this Noncompetition Agreement or the enforcement of any provision of this
Noncompetition Agreement is brought against the Shareholder, the
prevailing party shall be entitled to recover reasonable attorneys' fees,
costs and disbursements (in addition to any other relief to which the
prevailing party may be entitled).
XIV. CAPTIONS. The captions contained in this Noncompetition Agreement are for
convenience of reference only, shall not be deemed to be a part of this
Noncompetition
5.
<PAGE>
Agreement and shall not be referred to in connection with the construction
or interpretation of this Noncompetition Agreement.
XV. CONSTRUCTION. Whenever required by the context, the singular number shall
include the plural, and vice versa; the masculine gender shall include the
feminine and neuter genders; and the neuter gender shall include the
masculine and feminine genders. 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 Noncompetition
Agreement. Neither the drafting history nor the negotiating history of
this Noncompetition Agreement shall be used or referred to in connection
with the construction or interpretation of this Noncompetition Agreement.
As used in this Noncompetition Agreement, the words "include" and
"including," and variations thereof, shall not be deemed to be terms of
limitation, and shall be deemed to be followed by the words "without
limitation." Except as otherwise indicated in this Noncompetition
Agreement, all references in this Noncompetition Agreement to "Sections"
are intended to refer to Sections of this Noncompetition Agreement.
XVI. SURVIVAL OF OBLIGATIONS. Except as specifically provided herein, the
obligations of the Shareholder under this Noncompetition Agreement
(including his obligations under Sections III, VI and XII) shall survive
the expiration of the Noncompetition Period. The expiration of the
Noncompetition Period shall not operate to relieve the Shareholder of any
obligation or liability arising from any prior breach by the Shareholder
of any provision of this Noncompetition Agreement.
XVII. OBLIGATIONS ABSOLUTE. The Shareholder's obligations under this
Noncompetition Agreement are absolute and shall not be terminated or
otherwise limited by virtue of any breach (on the part of MTNV, Intec, any
other Indemnitee or any other Person) of any provision of the Stock
Purchase Agreement, the Employment Agreement or any other agreement, or by
virtue of any failure to perform or other breach of any obligation of
MTNV, Intec, any other Indemnitee or any other Person.
XVIII.AMENDMENT. This Noncompetition Agreement may not be amended, modified,
altered or supplemented other than by means of a written instrument duly
executed and delivered on behalf of the Shareholder, MTNV and Intec (or
any successor or permitted assign of MTNV or Intec).
XIX. DEFINED TERMS. For purposes of this Noncompetition Agreement:
(a) "AFFILIATE" means, with respect to any specified Person, any
other Person that, directly or indirectly, through one or more intermediaries,
Controls, is Controlled by or is under common Control with such specified
Person.
(b) "COMPETING PRODUCT" means any: (i) contamination control
product (including, without limitation, clean room garments) that has been
designed, developed, manufactured, assembled, promoted, sold, supplied,
distributed (including, without limitation, export and import), resold,
licensed, sublicensed, financed or rented by or on behalf of any of MTNV, MTNV's
subsidiaries or the Acquired Companies or any other Affiliate under MTNV's
6.
<PAGE>
Control (or any predecessor thereof) at any time on or prior to the date of the
termination of Shareholder's employment with any of the Acquired Companies.
(c) "COMPETING SERVICE" means any service that facilitates,
supports or otherwise relates to the design, development, manufacture, assembly,
promotion, sale, supply, distribution (including, without limitation, export and
import), resale, licensing, sublicensing, financing or renting of any Competing
Product.
(d) A Person shall be deemed to be engaged in "COMPETITION" if:
(a) such Person or any of such Person's subsidiaries or other Affiliates is
engaged directly or indirectly in the design, development, manufacture,
assembly, promotion, sale, supply, distribution (including, without limitation,
export and import), resale, licensing, sublicensing, financing, leasing,
subleasing or renting of any Competing Product; or (b) such Person or any of
such Person's subsidiaries or other Affiliates is engaged directly or indirectly
in providing, performing or offering any Competing Service.
(e) "CONFIDENTIAL INFORMATION" means any non-public information
(whether or not in written form and whether or not expressly designated as
confidential) relating directly or indirectly to MTNV, any of the Acquired
Companies or any of MTNV's other subsidiaries or relating directly or indirectly
to the business, operations, financial affairs, performance, assets, technology,
processes, products, contracts, customers, licensees, sublicensees, suppliers,
personnel, consultants or plans of MTNV, any of the Acquired Companies or any of
MTNV's other subsidiaries (including any such information consisting of or
otherwise relating to trade secrets, know-how, technology, inventions,
prototypes, designs, drawings, sketches, processes, license or sublicense
arrangements, formulae, proposals, research and development activities, customer
lists or preferences, pricing lists, referral sources, marketing or sales
techniques or plans, operations manuals, service manuals, financial information,
projections, lists of consultants, lists of suppliers or lists of distributors);
PROVIDED, HOWEVER, that "Confidential Information" shall not be deemed to
include information of Intec that was already publicly known and in the public
domain prior to the time of its initial disclosure to the Shareholder.
(f) "CONTROL" shall mean possession, directly or indirectly, of
the power to direct or cause the direction of the management of an entity
(whether through the ownership of securities, by contract or otherwise).
(g) "INDEMNITEES" shall mean: (i) MTNV; (ii) the Acquired
Companies; (iii) any Affiliates under MTNV's Control; and (iv) any successor or
permitted assign thereof.
(h) "NONCOMPETITION PERIOD" shall mean the period commencing on
the date of this Noncompetition Agreement and ending on the later of (i) the
third anniversary of the date of this Noncompetition Agreement or (ii) eighteen
months after the date of the termination of the Shareholder's employment with
Intec or its subsidiaries.
(i) "PERSON" means any: (i) individual; (ii) corporation, general
partnership, limited partnership, limited liability partnership, trust, company
(including any limited liability company or joint stock company) or other
organization or entity; or (iii) governmental body or authority.
7.
<PAGE>
(j) "RESTRICTED TERRITORY" means each of Republic of Singapore,
Malaysia, Republic of Indonesia, Kingdom of Thailand, Republic of the
Philippines, Democratic Socialist Republic of Sri Lanka, Republic of India,
People's Republic of China, Democratic People's Republic of Korea, Republic of
Korea and Taiwan (including, without limitation, each of the states,
prefectures, provinces or similar political subdivisions of such countries), and
each territory, protectorate or dependency thereof.
[The remainder of this page intentionally left blank.]
8.
<PAGE>
IN WITNESS WHEREOF, the Shareholder has duly executed and delivered this
Noncompetition Agreement as of the date first above written.
[NAME OF SHAREHOLDER]
Address:________________________________
Telephone No.:
Acknowledged and agreed:
METRON TECHNOLOGY N.V.
By:_____________________________
Its:
By:_____________________________
Its:
INTEC TECHNOLOGY (S) PTE. LTD.
By:_____________________________
Its:
9.
