EXHIBIT 10.20
AMENDED AND RESTATED DISTRIBUTORSHIP AGREEMENT
THIS AGREEMENT is made and entered into as of the 1st day of December,
1999, by and between ENTEGRIS, INC., a Minnesota corporation ("Entegris"),
EMPAK, INC., a Minnesota corporation ("Empak"), MARUBENI AMERICA CORPORATION, a
New York corporation (the "Exporter"), and MARUBENI CORPORATION, a Japanese
corporation (the "Distributor").
Recitals
WHEREAS, Entegris has acquired all of the issued and outstanding common
stock of Empak and Fluoroware, Inc., a Minnesota corporation ("Fluoroware"),
pursuant to that certain Consolidation Agreement under the terms of which both
Empak and Fluoroware will continue to independently manufacture some or all of
their respective product lines for a limited period of time until such time as
Entegris deems it appropriate to combine the manufacturing operations and
facilities of both entities, in which case each entity may cease to exist as
independent legal entities; and
WHEREAS, Empak, the Exporter and the Distributor have been and continue to
be parties to a distribution agreement for the distribution of products
manufactured by Empak in the territory of Japan pursuant to that certain
Distributorship Agreement dated February 28, 1997 (the "First Distributorship
Agreement"); and
WHEREAS, Entegris is now engaged in the manufacture and world-wide
distribution of products including, but not limited to, products of similar
design, function and application to products as defined in the First
Distributorship Agreement, directly or through its subsidiaries and affiliates;
and
WHEREAS, by virtue of the combination, Entegris has elected to distribute
products by business line rather than by manufacturer as contemplated in the
First Distributorship Agreement, according to the following business line
categories: Test Assembly and Packaging ("TAP"), Critical Fluid Management
("CFM"), Wafer Management ("WM") and Integrated Shipping Systems ("ISS"). The
foregoing business lines shall, for purposes of this Agreement, be referred to
individually and/or collectively as "Business Lines;" and
WHEREAS, the parties have agreed to modify the First Distributorship
Agreement to provide for the distribution of products manufactured by Entegris
and/or its subsidiaries and affiliates by Business Line.
Agreement
NOW, THEREFORE, in consideration of the foregoing premises and the mutual
covenants hereinafter set forth, the parties hereto hereby agree as follows:
Article I
Definitions
1.1) When used in this Agreement, the following terms shall have the
following meanings:
(a) "Products" shall mean ISS products (multiple wafer shippers,
disk shippers and disk process cassettes) manufactured by Entegris
and/or its subsidiaries and affiliates.
(b) "Territory" shall mean Japan.
(c) "Entegris" when used herein shall refer to Entegris and/or
Empak as the context requires until the latter's dissolution or the
assumption of manufacturing and sales operations by Entegris.
Article II
Appointment
2.1) Entegris hereby appoints the Exporter as its exclusive exporter
to purchase and export Products into the Territory during the term of this
Agreement. Entegris hereby appoints the Distributor as its exclusive
distributor to sell, market and distribute Products into the Territory
during the term of this Agreement. Provided, however, the Exporter and
Distributor shall cease the purchase and resale of SMIF type pods to all
customers as soon as possible, with the exception that the purchase and
resale of 200 mm SMIF type pods to Sony, Fujitsu and Dai Nippon Printing
may continue through August 31, 2000 at which time all sales of SMIF type
pods shall cease. Both the Exporter and the Distributor hereby accept such
appointment, upon the terms and conditions hereinafter set forth.
2.2) With respect to the disk shippers and disk process cassettes
("Disk Products"), the list of customers in the Territory for which the
Exporter and the Distributor shall have the exclusive right to sell the
Disk Products shall be as set forth in Exhibit A attached hereto and made
an integral part hereof.
Article III
Relationship
3.1) The relationship between Entegris, Empak and the Exporter and
between the Exporter and the Distributor, respectively, created hereby is
that of vendor and vendee only, and nothing contained in this Agreement
shall be deemed or construed as constituting one party as an agent or legal
representative of the other party for any purpose whatsoever, or as
conferring upon one party any right or authority to assume or create any
obligation or responsibility, express or implied, orally or in writing, on
behalf of or in the name of the other party or to bind the other party in
any manner whatsoever.
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Article IV
Prices; Minimum Order; Forecasts; Withdrawal from Manufacturing
4.1) The prices of Products purchased by the Exporter from Entegris
shall be as set forth in the price list attached hereto as Exhibit B and
made an integral part hereof. Entegris shall notify the Exporter of price
changes not later than thirty (30) days prior to the respective effective
date thereof.
4.2) All duties and taxes applicable to or levied on Products sold to
the Exporter hereunder by any level of government or any subdivision,
agency or instrumentality thereof outside the Territory shall be borne and
paid by the Exporter. All duties and taxes applicable to or levied on
Products sold to the Distributor hereunder by any level of government or
any subdivision, agency or instrumentality thereof in the Territory, except
as hereinafter specified, shall be borne and paid by the Distributor.
4.3) From time to time, Entegris shall furnish the Distributor with a
suggested list price of the Products (the "Suggested List Price"). Both
parties understand that the Suggested List Price shall have the character
of price recommendations only. The Distributor shall provide Entegris when
requested with a report describing: (i) the quantity of each type of
Product sold; (ii) the prices charged by the Distributor for each type of
Product; and (iii) a description of the costs incurred by the Distributor
related to the Products, including, but not limited to, delivery, handling
and document preparation charges.
4.4) Unless approved by Entegris in writing, the Distributor shall
purchase Products in case lots only; provided, however, the Distributor may
order less than a full case for the sole purpose of providing evaluation
samples of the Products, in which case the Distributor shall pay fifty
percent (50%) of Entegris' list price plus one hundred percent (100%) of
the shipping and handling charges.
4.5) The Distributor shall provide to Entegris, no later than thirty
(30) days prior to the beginning of each calendar quarter a forecast of
sales by Product for each of the next twelve (12) months. Such forecast
shall be updated on a rolling basis each month. The Distributor agrees to
purchase and take delivery of a minimum of three (3) months' forecasted
sales of each Product each calendar year.
4.6) Entegris shall receive all orders at least thirty (30) days prior
to the date specified in such order for delivery unless the specified
Products are already in Entegris' available-for-shipment inventory. Subject
to raw material availability, expected normal lead-time from order
acceptance to shipment date is three weeks. A lead-time report will be
provided by Entegris from time to time to reflect changes in capacity
loading. Entegris will ship earlier than three weeks if requested by a
customer on a best efforts basis. All such orders shall be subject to
acceptance and confirmation by Entegris.
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4.7) In the event the Exporter and/or the Distributor request
modifications or cancellations on an accepted order when the Cargo Ready
Date (C/R) is less than 30 days away, no cancellations will be allowed,
otherwise, the Distributor shall pay a fee equal to one hundred percent
(100%) of the aggregate purchase price of Products covered by the
cancellation through the Exporter. If the Cargo Ready Date is greater than
30 days but less than 60 days, the order may not be cancelled but may be
moved out by three weeks (21 days). If Entegris delays more than two (2)
weeks from the acknowledged Cargo Ready Date, the difference between air
and ocean freight costs shall be borne by Entegris.
4.8) The prices of Products sold by the Distributor in the Territory
shall be determined by the Distributor, subject to the Distributor
Covenants (Article VIII, 8.1, 8.5).
4.9) Entegris may withdraw a Product from manufacture or distribution
upon ninety (90) days notice to the Exporter and/or Distributor.
Article V
Payment Terms; Order Cancellation
5.1) Payment for Products purchased by the Exporter shall be made to
average net thirty (30) days after transfer to Exporter's designated
transfer agent or carrier, F.O.B. point of origin or Entegris' designated
manufacturing facility. Payments will be made each month by the 15th day of
the month for shipments occurring the previous month, provided that the
Exporter has received invoices for such Products by the 5th day of the
month when the payment is due and there exists no known written dispute
with respect to such invoices. If Entegris falls to receive a payment by
the 15th day of the month, then the Exporter shall pay a finance charge of
two percent (2%) per month in addition for the actual number of days
elapsed. Entegris shall provide to the Exporter a statement of any
outstanding finance charges on a quarterly basis.
Article VI
Delivery Terms; Risk of Loss
6.1) The terms of shipment of Products shall be F.O.B. point of origin
or Entegris' designated manufacturing facility, unless otherwise agreed
upon. Risk of loss shall pass to the Exporter upon transfer to the
Exporter's designated transfer agent or carrier.
Article VII
Individual Purchase Orders
7.1) Individual purchase orders shall be submitted on the Exporter's
purchase order (the "Purchase Order") bearing its standard terms and
conditions of sale. Notwithstanding the Exporter's published standard terms
and conditions, Entegris' standard terms and conditions shall apply. The
form
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of Entegris' or Empak's terms and conditions of purchase, as the case may
be, are attached hereto as Exhibit C and made an integral part hereof.
Entegris shall have, as soon as possible, but not more than seven (7) days
after receipt of each Purchase Order to note any exceptions thereto, which
shall be distributed to the Exporter and/or the Distributor via facsimile.
7.2) Each Purchase Order shall be deemed to incorporate all of the
terms and conditions of this Agreement to the extent applicable. In the
event of conflict between the terms and conditions of this Agreement and
the terms and conditions contained on the reverse side of said Purchase
Order, this Agreement shall control.
Article VIII
Distributor Covenants
8.1) The Distributor shall use its best efforts to actively promote
the sale and distribution of Products in the Territory, shall maintain the
highest standards of performance in sales, service, physical facilities,
financial responsibility and general conduct toward the public, and shall
otherwise carry out the terms of this Agreement. The Distributor shall
conduct its relationships with the Exporter and other affiliates in such a
manner that the competitiveness of Products in the marketplace will not be
negatively affected.
8.2) The Distributor shall designate whether a Product is ordered for
sale and delivery to a particular customer or to be held in the
Distributor's inventory. If a Product is ordered for sale and delivery to a
particular customer, then the Distributor covenants that it shall not sell
and deliver the Product to another customer without prior written notice to
Entegris. The Distributor agrees, that during the term of this Agreement,
it shall not sell Products to any customer who the Distributor knows or
should reasonably know intends to resell or otherwise distribute Products
outside the Territory. In the event empty Products sold by the Distributor
are shipped or consigned for delivery outside of the Territory without the
consent of Entegris, whether by a customer to a third party or to the
customer's facilities outside of the Territory, Entegris shall backcharge
the Distributor for all commissions or other compensation due Entegris'
local representatives or distributors, and/or Entegris may terminate this
Agreement if the Distributor knowingly violates the Territory restrictions
as described herein.
8.3) The Distributor shall establish a dedicated staff of sales and
technical personnel whose exclusive duties will involve selling, marketing
and distributing Products in the Territory, and otherwise fulfilling the
terms and intent of this Agreement. A schedule setting forth the names and
titles of each such persons shall be provided in writing to Entegris within
thirty (30) days of the date of this Agreement, and the Distributor shall
provide Entegris an amended schedule within thirty (30) days of any change
in the composition of such staff of sales and technical personnel. The
sales and technical personnel selected by the Distributor shall be
sufficient in expertise and number to sell, market and distribute Products
and otherwise fulfill the terms and intent of this Agreement. The
Distributor
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acknowledges that temporarily assigning personnel from its other operations
shall not be sufficient for purposes of fulfilling its obligations under
this Article 8.3.
8.4) During the term of this Agreement, the Distributor shall, by use
of its best efforts, prompt delivery, efficient service and otherwise,
actively builds, maintains and develops the full sales potential for
Products within the Territory. To the best of its efforts, the Distributor
shall devote time to expanding the sale of Products and the Distributor
shall cooperate with Entegris in Entegris' plans for the building,
maintenance and expansion of such sales. The Distributor shall regularly
solicit customers within the Territory. The Distributor shall keep Entegris
informed of the progress of the Distributor's marketing efforts, and shall
provide to Entegris: (i) continuous market feedback and forecasts; (ii)
monthly activity reports; and (iii) annual customer sales plans, so that
Entegris may schedule its manufacturing activities accordingly.
8.5) The Distributor shall not use subdistributors in connection with
fulfilling its obligations under this Agreement without informing Entegris
of the identity and affiliate relationship of the subdistributor to the
Distributor. The Distributor shall have responsibility for the actions and
performance of its subdistributors.
Article IX
Entegris Covenants
9.1) Entegris shall provide the Distributor, free of charge, from time
to time, basic information and illustrative materials for the preparation
of catalogs and advertising and promotional literature, together with
technical data, new Product releases, and all other sales materials
pertinent to Products. These illustrative materials may be supplied with
terms and conditions (including Entegris' warranty terms and disclaimers).
However, it shall be the responsibility of the Distributor to provide
translation and delivery of the warranty for Products as required by
Article X.
Product samples provided by Entegris to the Distributor shall be paid
for on a 50/50 basis between the parties with the Distributor paying for
the cost of shipping. Samples provided for the purpose of qualifying an
engineering change which accrue to the benefit of Entegris shall be
provided at no charge by Entegris.
9.2) Entegris reserves the right to communicate directly with
customers of Products regarding technical support or Product quality; or
for any reason if a customer requests to directly communicate with
Entegris.
9.3) Entegris agrees, that during the term of this Agreement, it shall
not sell Products to any Distributor or customer located outside the
Territory who Entegris knows or should reasonably know intends to resell or
otherwise distribute Products inside the Territory. In the event Products
sold by Entegris outside the Territory are shipped or consigned for
delivery inside the Territory, whether by a
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distributor or customer to a third party or to a distributor's or
customer's facilities inside the Territory, the Distributor shall receive a
commission equal to ten percent (10%) of Gross Sales of such Products. The
term "Gross Sales" means gross sales of Products net of freight and other
customarily deductible costs.
Article X
Warranty
10.1) Entegris warrants that Products sold and delivered to the
Exporter and/or the Distributor hereunder are in accordance with Entegris'
written warranty attached hereto as Exhibit D (the "Entegris' Written
Warranty").
10.2) The Distributor shall provide each customer of Products with a
copy of Entegris' Written Warranty (as translated into Japanese): (i) on
each occasion that it delivers Products to such customers or (ii) annually,
in a writing to the customer which contains Entegris' Written Warranty. The
Distributor shall provide, annually, certification of compliance with the
foregoing and a list of customers to whom the translated Written Warranty
was provided. The Distributor shall not warrant any Empak Product beyond
the scope of Entegris' Written Warranty, and agrees not to make any oral or
written representations concerning Products except as approved by Entegris
in writing from time to time.
10.3) In the event that any Product or part thereof are found to be
defective or not in conformity with the agreed specifications within the
written warranty period, Entegris' sole obligation shall be to replace such
defective or non-conforming Product(s) free of charge within sixty (60)
days or as soon as practicable after receipt of a claim from the
Distributor. In no event shall Entegris have any responsibility or bear any
liability for the cost of labor for the repair of any defective Product(s),
the removal of any defective Product(s) or the installation of any
replacement Product(s).
10.4) All transportation and other costs incurred in connection with
sorting or the return of any defective or non-conforming Products or part
thereof and the replacement therefor pursuant to the foregoing Article 10.2
shall be borne by Entegris; provided, however, that Entegris shall not be
responsible for any of the foregoing costs until it has issued an
authorization order, in writing to the Distributor, authorizing the
Distributor to (i) return such defective or non-conforming Products; or
(ii) take other remedial action.
10.5) Entegris shall indemnify and hold the Distributor harmless from
and against any loss, damage, cost, expense, claim or liability which may
be incurred by or asserted against the Distributor as a result of any
breach of the warranty contained in Article 10.1 above; provided, however,
that Entegris shall not be required to indemnify and hold the Distributor
harmless from any loss, damage, cost, expense, claim or liability which may
be incurred by or against the Distributor as a result the Distributor's
failure to comply with Article 10.2 above.
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10.6) ENTEGRIS WRITTEN WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES,
EXPRESS OR IMPLIED, WHICH ARE HEREBY DISCLAIMED AND EXCLUDED BY ENTEGRIS,
INCLUDING, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE OR USE AND ALL OBLIGATIONS OR LIABILITIES ON THE
PART OF ENTEGRIS FOR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE,
REPAIR OR PERFORMANCE OF THE PRODUCTS.
Article XI
Proprietary Information
11.1) It is expressly understood and agreed by the parties hereto that
all information furnished by or obtained from one party to the other party
during the term of this Agreement including, without limitation, all
drawings, plans, data, instructions, hardware and software, whether
furnished in writing, orally or in physical configuration, is the
proprietary information and constitute the trade secrets of the party who
furnished such information or from whom the same was obtained, and shall
not be disclosed to any third party, nor shall the same be used by the
other party for any purpose other than the performance of its obligations
hereunder without the prior written consent of the party who originally
furnished such information. This obligation of confidence shall extend for
a period of three (3) years from the date of receipt of such information.
11.2) As an exception to the obligation of confidence contained in the
foregoing Article 11.1, a party may disclose proprietary information to
such of its employees or third parties as may reasonably require access to
such information in order for the party to fulfill its obligations under
this Agreement; provided, however, that prior to any such disclosure, the
receiving party shall have agreed in writing to use and protect such
information in accordance with the terms of this Agreement.
11.3) The provisions of this Article XI shall survive the termination
of this Agreement for whatever reason.
Article XII
Intellectual Property Rights
12.1) Entegris warrants that the possession, use, sale or other
transfer of Products in the Territory by the Distributor, an end user or
any third party will not infringe any patent, trade name, trademark,
utility model, design, copyright or other intellectual property right
belonging to any third party in the Territory.
12.2) Entegris shall defend any legal action or other proceeding
brought against the Exporter and/or Distributor insofar as such legal
action or other proceeding is based upon a claim that Products or any part
thereof sold and delivered hereunder infringes any patent, trade name,
trademark, utility
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model, design, copyright or other intellectual property right belonging to
any third party in the Territory. The Exporter and/or Distributor shall
notify Entegris of such legal action or other proceeding, and shall provide
Entegris with such assistance and cooperation in the defense thereof as
Entegris may reasonably request. Entegris shall have sole control over any
such legal action or other proceeding and shall indemnify and hold the
Exporter and/or Distributor harmless from and against any loss, damage,
cost, expense, claim or liability which may be incurred by or asserted
against it as the result of an alleged or actual infringement of any
intellectual property right belonging to any third party in the Territory.
Article XIII
Term; Annual Review
13.1) This Agreement shall supercede the First Distributorship
Agreement and shall terminate on February 27, 2003 (the "Termination Date")
unless terminated by either party pursuant to Article 13.2 or 13.3. In the
event this Agreement is not renewed by mutual agreement of the parties,
Distributor shall receive a sales commission equal to four percent (4%) of
the Gross Sales Price of all Products sold in the Territory by Entegris,
its employees, agents or representatives during the twelve (12) month after
termination and two percent (2%) of the Gross Sales Price of all Products
sold in the Territory by Entegris during the second twelve (12) month
period after termination.
13.2) Either party hereto may terminate this Agreement by written
notice to such effect to the other party if the other party commits a
material breach of any material term or condition contained in this
Agreement and fails to initiate to remedy the same within thirty (30) days
after notice from the party not in breach setting out the nature of such
breach and demanding that the same be remedied.
13.3) Either party may terminate this Agreement upon notice to such
effect to the other party if bankruptcy, insolvency or reorganization
proceedings or any other proceedings analogous in nature or effect are
instituted by or against the other party; the other party is dissolved or
liquidated, whether voluntarily or involuntarily; a receiver or trustee is
appointed for all or a substantial part of the assets of the other party;
or the other party makes an assignment for the benefit of creditors.
13.4) On each annual anniversary of the Effective Date, the parties
shall conduct a mutual review of each other's performance under this
Agreement at such time and place as the parties mutually agree upon. The
Distributor shall be reviewed on the basis of its adherence to the
standards set forth in this Agreement, including, but not limited to, its
covenants set forth in Article VIII herein, the quality and accuracy of
market forecasts and other information required to be supplied, customer
satisfaction and market penetration. Entegris shall be reviewed on the
basis of its adherence to the standards set forth in this Agreement,
including, but not limited to, its covenants set forth in Article IX
herein, Product quality and customer service.
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13.5) No termination of this Agreement, for whatever reason, shall
affect any right or liability of either party which has accrued to the
other party prior to the date of such termination or which thereafter may
accrue in respect of any act or omission to act committed prior to such
termination, nor shall any such termination affect any right or obligation
of either party which is expressly stated elsewhere in the Agreement to
survive the termination hereof.
Entegris shall repurchase such Products from the Distributor at a
price equal to the original purchase price paid by the Distributor plus
transportation costs, duties, storage, interest and other costs incurred by
distributor importing Products in the Territory and reasonably verifiable
by Entegris, in which event, Distributor must refrain from further sales of
Products. Only those Products, which are new and unused, currently
manufactured, unopened and undamaged in their original packaging, are
eligible for repurchase. Upon termination hereunder, the Distributor shall
provide Entegris a detailed inventory of Products for repurchase under this
paragraph. Said inventory shall be provided within thirty (30) days and
contain the following information: (i) Product numbers; (ii) Product
quantities; (iii) dates of purchase; (iv) purchase price; and (v) verified
import costs.
13.6) Upon termination, Distributor agrees to use its best efforts to
transition customers to Entegris. Distributor's best efforts shall include,
but not be limited to, introducing an Entegris representative to each
customer, providing each customer's corporate name and buyer name, relevant
addresses, communications information, each customer's detailed purchase
history for the two (2) year period immediately preceding the date of
termination by date and Product number, buying volumes, historical prices
charged therefore and any other pertinent data which is available to
Distributor.
Article XIV
Force Majeure
14.1) Neither party shall be liable in any manner for failure to
perform or delay in performing all or any part of this Agreement or of any
individual purchase contract entered into pursuant hereto which is directly
or indirectly due to any cause or circumstance beyond the control of such
party including, without limitation, acts of God, fire, flood, storms,
earthquake, typhoon, tidal wave, plague or other epidemics, governmental
laws, orders, regulations, sanctions or restrictions, war (whether declared
or not), armed conflict or the serious threat of the same, hostilities,
mobilization, blockade, embargo, detention, revolution, riot, looting,
lockout, strike or other labor dispute, unavailability of transportation or
severe economic dislocation.
Article XV
Governing Law
15.1) This Agreement shall be governed by and construed in accordance
with the substantive laws (but not the laws of conflict) of the State of
Minnesota, USA.
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Article XVI
Arbitration
16.1) All disputes, controversies or differences which may arise
between the parties hereto, out of, in relation to or in connection with
this Agreement or any Purchase Order entered into pursuant hereto, or for
the breach hereof or thereof, which cannot be resolved amicably by the
parties shall be finally settled by arbitration in Minneapolis, Minnesota
before a panel of three (3) arbitrators. Each party shall select an
arbitrator, and the two arbitrators so chosen shall mutually choose the
third arbitrator. The arbitration and all proceedings related thereto shall
be conducted in the English language. Provided, however, Entegris may seek
injunctive relief to enjoin the threatened or actual disclosure of
proprietary information. Any attempt to seek injunctive relieve shall not
be deemed an election of remedies and shall not bar Entegris from seeking
other remedies or forms of relief provided by law or this Agreement.
16.2) The award rendered therein shall be final and binding upon all
the parties and may be reduced to a judgment in a court of competent
jurisdiction.
16.3) The arbitration and all proceedings related thereto and any
award of the arbitrators shall be held in strict confidence by the parties.
Article XVII
Covenant Not to Compete
17.1) The Distributor and the Exporter agree that Entegris would be
substantially harmed if the Distributor and/or the Exporter were to compete
with Entegris by manufacturing, selling, marketing or distributing items
which compete with Products in the Territory, except as provided by the
terms of this Agreement. In partial consideration for the benefits provided
to the Distributor and the Exporter hereunder, the Distributor and the
Exporter agree that:
(i) During the term of this Agreement and for a period of two (2)
years following the termination of this Agreement for whatever
reason and for such additional period during which either of
Marubeni Corporation or Marubeni America Corporation be and
remain shareholders of Entegris, the Distributor and/or the
Exporter shall not, directly or indirectly, manufacture, sell,
market or distribute Products which are in any way competitive to
the Products, including, but not limited to, items which are
alternatives or which are made of materials other than plastic
but which are marketed in competition with any of the Products;
and
(ii) During the term of this Agreement the Distributor and/or the
Exporter shall not, directly nor indirectly, manufacture, sell,
market or distribute, in the Territory,
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items which are alternatives or which are marketed in competition
with any of Products.
17.2) The Distributor and the Exporter agree that Entegris would
suffer irreparable injury if the Distributor and/or the Exporter were to
breach, or threaten to breach any provisions of Article 17.1. The
Distributor and the Exporter further agree that Entegris may seek to
enforce this covenant not to compete by applying to the United States
District Court, District of Minnesota, Fourth Division, for injunctive
relief pending completion of arbitration proceedings. The court shall refer
proceedings to the arbitrators selected under Article XVII to determine
whether any injunction issued shall remain in effect or be dissolved.
Article XVIII
Entire Agreement
18.1) This Agreement constitutes the entire agreement between the
parties hereto and wholly cancels, terminates and supersedes all previous
negotiations, agreements and commitments, whether formal or informal, oral
or written, with respect to the subject matter hereof.
Article XIX
Amendments
19.1) This Agreement shall not be amended, changed or modified in any
manner except by an instrument in writing signed by a duly authorized
representative of each of the parties hereto.
Article XX
Assignment
20.1) This Agreement shall be binding upon and inure to the benefit of
Entegris, the Exporter and the Distributor, and their respective successors
and permitted assigns.
20.2) Entegris may not assign, transfer or otherwise dispose of its
rights or obligations under this Agreement, in whole or in part, without
the prior written consent of the Exporter or the Distributor, which consent
shall not be unreasonably withheld.
Article XXI
No Waiver
21.1) No failure to exercise or delay in exercising any right or
remedy under this Agreement by a party shall operate as a waiver thereof or
of any other right or remedy which such party may have hereunder nor shall
any single or partial exercise of such right or remedy preclude any further
exercise thereof or of any other right or remedy which such party may have
hereunder.
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21.2) The rights and remedies provided herein are cumulative and not
exclusive of any rights and remedies provided by law, in equity or
otherwise.
Article XXII
Severability
22.1) In the event that any provision or any portion of any provision
of this Agreement is adjudged, by an arbitration panel or a court of
competent jurisdiction, to be invalid, illegal, or unenforceable under
either the laws of the United States of America or the Territory, such
provision or portion thereof shall be deemed to be deleted from this
Agreement and the validity of the remainder of this Agreement shall remain
unaffected thereby.
Article XXIII
Notices
23.1) Except as provided in Article 7.1 with regard to Purchase
Orders, all notices, requests or other communications required or permitted
to be given hereunder shall be sent by registered airmail letter, postage
prepaid, or by telecopy or telex (both with confirmation by registered
airmail letter, postage prepaid) to the other party at the respective
address set forth below or to such other address as may from time to time
be notified by a party to the other party in accordance with this Article
23.1:
If to Entegris:
Entegris, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attn.: Xx. Xxxx Xxxxx, Chief Executive Officer
Telecopy No.: 000-000-0000
and
Empak, Inc.
0000 Xxxxx Xxxxxxxxx
Xxxxxx, XX 00000
Attention: Mr. Del Xxxxxx, Chief Executive Officer
Telecopy No.: (000) 000-0000
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With a copy to:
Xxxxxx X. Xxxxx & Associates, P.A.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxxx, Xxxxxxxxx 00000
Attention: Xxxxxx X. Xxxxx, Esq.
Telecopy: 000-000-0000
If to the Distributor:
Marubeni Corporation
0-0, Xxxxxxxxx 0-xxxxx
Xxxxxxx-xx, Xxxxx, Xxxxx
Attention: General Manager, Electronic Materials
Department
Telecopy No.: 00-0000-0000
If to the Exporter:
Marubeni America Corporation
000 Xxxxxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: General Manager, Plastics Division
Telecopy No.: (000) 000-0000
23.2) All notices shall be deemed to have been given when duly
transmitted by telex or telecopy or deposited in the mail.
Article XXIV
Counterparts
24.1) This Agreement may be executed in one or more counterparts, each
of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their respective, duly authorized representatives as of the day and
year first above written.
ENTEGRIS, INC. EMPAK, INC.
By: /s/ Xxxx Xxxxx By: /s/ Xxxx Xxxxx
------------------------------ ------------------------------------
Its: President/CEO Its: President/CEO
-------------------------- -------------------------------
The Distributor: The Exporter:
MARUBENI CORPORATION MARUBENI AMERICA CORPORATION
By: /s/ Illegible By: /s/ Illegible
------------------------------- -----------------------------------
Its: General Manager Its: Senior Vice President
-------------------------- ------------------------------
Electronic Materials Dept.
--------------------------
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