EXHIBIT 10.38
SHARE PURCHASE AGREEMENT
THE 24TH DAY OF MAY, 2002
SHINKO ELECTRIC CO., LTD
ASYST JAPAN INC.
CONTENTS
1. INTERPRETATION 1
1.1 Definitions 1
1.2 Rules for Interpreting This Agreement 7
1.3 Business Days 8
1.4 Multiple Parties 8
2. AGREEMENT ON SALE AND PURCHASE OF SHARES 8
2.1 Sale and Purchase 8
2.2 Ownership and Risk 9
3. PURCHASE PRICE 9
3.1 Purchase Price Payable on Closing 9
3.2 Post Closing Purchase Price Adjustment 9
4. CLOSING 10
4.1 Time and Place of Closing 10
4.2 Obligations of Vendor to Deliver Documents at Closing 10
4.3 Other Obligations of Vendor at Closing 11
4.4 Payment Obligation of Purchaser at Closing 11
4.5 Obligations of Purchaser to Deliver Documents at Closing 11
4.6 Other Obligations of Purchaser at Closing 12
4.7 [Omitted] 12
4.8 Procedures immediately after Closing 12
4.9 Determination of Corporate Separation Effective Date Balance Sheet 12
5. OBLIGATIONS OF PARTIES BEFORE AND AFTER CLOSING 13
5.1 Conduct of Transferred Business 13
5.2 Conduct of the Company 14
5.3 Continuity of Relationship with Customers and Suppliers 15
5.4 Access to Information of Company by Purchaser 16
5.5 Vendor Assistance Pending Closing 16
5.6 Compliance with Laws Pending Closing 16
5.7 Perfection 17
5.8 Ensuring Satisfaction of Closing Conditions 17
5.9 Notice of Changes 17
5.10 Reports, Taxes 17
5.11 Approval of Transfer of the Shares 18
5.12 Obtaining Cooperation from Asyst Technologies 18
5.13 Faithful Negotiation regarding Conditions of Ancillary Agreements 18
5.14 Obligation of Vendor to Provide Information concerning Transferred
Business after Closing 18
5.15 Interpretation of Obligation of Vendor to Cause Company to Do
Certain Act 18
6. VENDOR'S REPRESENTATIONS AND WARRANTIES 19
6.1 Representations and Warranties 19
6.2 Exceptions 19
6.3 Repetition of Representations and Warranties 19
7. PURCHASER'S REPRESENTATIONS AND WARRANTIES 19
7.1 Representations and Warranties 19
7.2 Repetition of Representations and Warranties 20
8. CONDITIONS PRECEDENT 20
8.1 Conditions Precedent to Obligations of Vendor 20
8.2 Conditions Precedent to Obligations of Purchaser 21
8.3 Fulfillment by Waiver 22
9. OBLIGATION TO AVOID COMPETITIVE BUSINESS 23
9.1 Definitions 23
9.2 Restraint Obligation 23
9.3 Permitted Involvement 23
9.4 Non-Interference 23
9.5 Reasonableness of ▇▇▇▇▇▇▇▇▇ ▇▇
▇▇. TRANSFER OF TRANSFERRED BUSINESS UNDER CORPORATE
SEPARATION AND RELATED MATTERS 24
10.1 Transfer of Transferred Business 24
10.2 IT System of the Company 24
10.3 Transition Measures before Obtaining Permission under the
Construction Business Law 25
11. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS 25
11.1 Information Falling under Confidential Information 25
11.2 Treatment of Confidential Information 26
11.3 Return of Confidential Information 27
11.4 Exceptions 27
12. INDEMNITY 28
12.1 Indemnity by Vendor 28
12.2 Indemnity by Purchaser 29
12.3 Settlement of Disputes 30
12.4 Restriction of Damages 31
13. TERMINATION OF AGREEMENT 31
13.1 Termination Event 31
13.2 Termination by Force Majeure 32
13.3 Procedure and Effect of Termination 32
14. NOTICES 32
14.1 Method of Notice 32
14.2 Address for Notices 33
14.3 Change of Address 33
ii.
15. AMENDMENT AND ASSIGNMENT 33
15.1 Amendment 33
15.2 Assignment 33
16. GENERAL PROVISIONS 33
16.1 Governing Law 33
16.2 Language 34
16.3 Liability for Expenses 34
16.4 Giving Effect to This Agreement 34
16.5 Waiver of Rights 34
16.6 Operation of This Agreement 34
16.7 Survival of Representations and Warranties and Other Proceedings 35
16.8 Consents 35
16.9 Inconsistency with Other Documents 35
16.10 Matters not Contemplated in This Agreement 35
16.11 Counterparts 35
Schedules
1 VENDOR'S OBLIGATION PRIOR TO CLOSING
2 CONTRACTS
3 FORM OF BALANCE SHEET AS OF CORPORATE SEPARATION
EFFECTIVE DATE
4 CORPORATE SEPARATION PLAN
5 LIST OF TRANSFERRED EMPLOYEES
6 LIST OF TRANSFERRED ASSETS AND EXCLUDED ASSETS
7 LIST OF TRANSFERRED INTANGIBLE PROPERTY
8 NOTHING APPLICABLE
9 PLANT AND EQUIPMENT
10 DETAILS OF SHARES
11 VENDOR'S REPRESENTATIONS AND WARRANTIES
13 CORPORATE PROFILE OF COMPANY
15 EMPLOYEE BENEFIT PLANS
16 NOTHING APPLICABLE
iii.
17 ANCILLARY AGREEMENTS
18 BALANCE SHEET AS OF SUPPOSED CORPORATE SEPARATION
19 EXPECTED SUCCESSION PROCEDURES
iv.
SHARE PURCHASE AGREEMENT ("AGREEMENT")
DATE: MAY 24, 2002
PARTIES
SHINKO ELECTRIC CO., LTD., a corporation organized and existing under
the laws of Japan and having its registered office at ▇-▇▇ ▇▇▇▇ ▇-▇▇▇▇▇,
▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇ ("VENDOR")
ASYST JAPAN INC., a corporation organized and existing under the laws of
Japan and having its registered office at ▇▇▇▇▇▇ ▇▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇▇
▇▇▇▇▇, ▇-▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ 2-Chome, Kohoku-ku, Yokohama-shi, Kanagawa,
Japan ("PURCHASER")
RECITALS
A. The Vendor and the Purchaser entered into the basic agreement dated as
of April 16, 2002 regarding the corporate separation of the Vendor's
semiconductor and liquid crystal materials conveyance system businesses
into a newly created company to be incorporated and fully owned by the
Vendor ("COMPANY") and thereafter the purchase by the Purchaser of a
portion of the shares ("SHARES") of the Company from the Vendor
("TRANSACTION").
B. The Vendor and the Purchaser desire to sell and purchase, respectively,
the Shares subject to the terms and conditions of this Agreement.
OPERATIVE PROVISIONS
1. INTERPRETATION
1.1 DEFINITIONS
The following definitions apply in this Agreement unless otherwise
required by the context hereof.
"AGREEMENT", "HONKEIYAKU", has the meaning given to it in the recitals
and includes schedules attached hereto.
"ANCILLARY AGREEMENTS", "FUZUI KEIYAKU", means such agreements which the
Purchaser and the Vendor agree on being necessary and/or desirable for
the ongoing operation of the Transferred Business of the Company and as
set out in SCHEDULE 17, including but not limited to the following:
(a) service agreements between the Company and the Vendor and/or any
Vendor Related Company, as the case may be;
(b) New Leases;
(c) utility (gas, electricity, etc.) related agreements for the
Transferred Assets and the Leased Plant and Equipment between
the Company and the Vendor;
(d) parts-supply agreements between the Company and the Vendor
and/or any Vendor Related Company, as the case may be;
(e) license agreements between the Company, Kobe Steel and the
Vendor regarding the brand name "SHINKO" and "System Power
▇▇▇▇";
(f) license agreements between the Company and the Vendor or any
Vendor Related Company or any other party, as the case may be,
regarding the intellectual property rights currently used by the
Vendor in relation to the Transferred Business;
(g) IT service agreements between the Company and the Vendor or any
Vendor Related Company regarding the IT systems to be used by
the Company;
(h) basic agreement between the Company and the Vendor regarding
mutual consignment of business such as development, experiments,
etc., with respect to the Vendor's hospital conveyance system,
strength survey experiments and other related matters (such as
(1) consignment from the Company to the Vendor regarding the
experiments of strength survey, etc., products designs and other
matters and (2) consignment from the Vendor to the Company
regarding the hospital conveyance system, etc.); and
(i) all other agreements or contracts to be entered between the
Vendor and/or any Third Parties and the Company which the Vendor
and the Purchaser agree are necessary, advisable or desirable to
properly operate the Transferred Business.
"APPLICABLE LAW", "TEKIYOU HOUREI", means, as to any person, any
legislation (including subordinate legislation), rule, treaty, judgment,
decision, order, order or guidance of any administrative agency
(including any guide line) and other similar matters thereto,
irrespective of its place of establishment, that is applicable to or
binding upon such person or any of its properties.
"ASSIGNMENT LEASES", "SHOUKEI TAISHOU CHINTAISHAKU KEIYAKU", means the
leases for the Plant and Equipment, etc. currently leased by the Vendor
from Third Parties and which are to be assigned to the Company under the
Corporate Separation.
"ASSUMED CORPORATE SEPARATION BALANCE SHEET", "SOUTEI KAISHA BUNKATSUJI
TAISHAKU TAISHOU HYOU", means the balance sheet of the Company prepared
in accordance with the provisions hereof, which is expected to be the
balance sheet of the Company as of the Corporate Separation Effective
Date on the assumption that the Corporate Separation will be completed
as of the Corporate Separation Effective Date pursuant hereto, and which
is attached hereto as SCHEDULE 18.
"ASYST TECHNOLOGIES", "ASISUTO TEKUNOROJIZU", means Asyst Technologies,
Inc., a corporation organized and existing under the laws of U.S. and
having its registered office at ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇,
being the parent company of the Purchaser holding 96.85% of the
Purchaser's shares as of March 31, 2002.
2.
"AUTHORIZATION", "JUKEN TOU", means an authorization, consent,
acceptance, permission, approval or other similar matter thereto
(including any renewal or amendment) necessary for any person to conduct
matters concerned irrespective of the nature of the entity giving such
authorization etc.
"AUTHORIZED REPRESENTATIVE", "JUKEN DAIRININ", means, for a party:
(a) a representative director of the party; or
(b) an officer or an employee of the party or any other Third Party
properly authorized in writing by the board of directors or
other authorization organization of the party in respect of any
act concerned.
"BUSINESS DAY", "EIGYOUBI", means a day that is not a Saturday, Sunday
or public holiday in Tokyo, Japan and also excluding December 31,
January 2 and January 3.
"CLAIM", "SEIKYU", means a claim, action, proceeding or demand made
against the person concerned, however it arises and whether it is
present or future, fixed or unascertained, contingent or actual.
"CLOSING", "KUROJINGU", means the closing of the sale and purchase of
the Shares under CLAUSE 4.
"CLOSING DATE", "KUROJINGUBI", means October 15, 2002 being the date on
which the Closing is to be made or such other date which is agreed in
writing by the parties.
"COMMERCIAL CODE", "SHOUHOU", means the Commercial Code of Japan (Law
No. 48, March 9, 1899).
"COMPANY", "▇▇▇▇▇▇ ▇▇▇▇▇▇", means the company referred to in RECITAL A,
to be incorporated by the Vendor as a joint stock company with an
initial paid up share capital of JPY 495 million, under the laws of
Japan on the Scheduled Corporate Separation Effective Date and to be
called "Asyst Shinko Inc.," ("Ashisuto Shinko Kabushiki Kaisha" in
Japanese)(for the purpose of commercial register, "AshisutoShinko
Kabushiki Kaisha" in Japanese, with no "space" between "Ashisuto" and
"Shinko" for certain technical reasons) and to have its registered
office at ▇-▇▇ ▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇.
"CONTRACT", "▇▇▇▇▇▇ KEIYAKURUI", means any contract relating to the
Transferred Business existing at the Closing which the Vendor entered
into in the ordinary course of business of the Transferred Business and
which the Company will need to operate the Transferred Business and
including but not limited to the Assignment Leases (but not including
the New Leases), contracts for the maintenance of any asset or any
equipment, and contracts among manufacturers, sellers and suppliers of
Inventory, assets of Plant and Equipment, or Transferred Intangible
Property, being the contracts specified in SCHEDULE 2.
3.
"CORPORATE SEPARATION", "▇▇▇▇▇▇ ▇▇▇▇▇▇ BUNKATSU", means the corporate
separation of the Transferred Business from the Vendor into the Company,
pursuant to the Corporate Separation Plan in accordance with the
Commercial Code.
"CORPORATE SEPARATION APPROVAL DATE", "KAISHA BUNKATSU SHOUNINBI", means
the date on which the Corporate Separation is approved in the general
meeting of shareholders of the Vendor, and the "SCHEDULED CORPORATE
SEPARATION APPROVAL DATE" means June 27, 2002 or such other date which
is agreed by the parties.
"CORPORATE SEPARATION EFFECTIVE DATE", "KAISHA BUNKATSU KOURYOKU
HASSEIBI", means the date on which the Corporate Separation becomes
effective and the "Scheduled Corporate Separation Effective Date" means
October 1, 2002 or such other date which is agreed by the parties.
"CORPORATE SEPARATION EFFECTIVE DATE BALANCE SHEET", "KAISHA BUNKATSU
KOURYOKU HASSEIBI TAISHAKU TAISHOU HYOU", means the balance sheet
prepared pursuant to the provisions hereof including CLAUSES 3.2(b) AND
4.9, as of the Corporate Separation Effective Date of the Company. The
Corporate Separation Effective Date Balance Sheet shall be prepared in
substance in the form of the balance sheet attached hereto as SCHEDULE
3.
"CORPORATE SEPARATION PLAN", "KAISHA BUNKATSU KEIKAKUSHO", means the
corporate separation plan attached hereto as SCHEDULE 4.
"DIFFERENCE", "SAGAKU", has the meaning given to it in CLAUSE 3.2(b).
"EFFECTIVE DATE", "HONKEIYAKU KOURYOKU HASSEIBI", means the execution
date of this Agreement.
"ENCUMBRANCE", "SEIGENTEKI KENRI", means a mortgage, pledge, lien, other
statutory or stipulated security, a right of set-off or similar right to
withhold payment of a deposit or other money, or an easement, right of
lease or arrangement of restriction to use things concerned or an
agreement of creation or license of any of them.
"EXCLUDED ASSET", "BUNKATSU TAISHOUGAI SHISAN", means any of the assets
listed in SCHEDULE 6-2.
"EXISTING LEASES", "▇▇▇▇▇ NO CHINTAISHAKU", means all leases under which
the Vendor is a party as the lessee to be transferred by the Corporate
Separation and all leases under which the Vendor is a party as the
lessee to be sub-leased to the Company by the Vendor.
"FORCE MAJEURE", "FUKAKOURYOKU JIYUU", has the meaning given to it in
CLAUSE 13.2(a).
"GOVERNMENT AGENCY", "▇▇▇▇▇ KIKAN", means:
(a) a government or government department or other body; or
(b) an administrative agency or judicial agency.
4.
"INTANGIBLE PROPERTY", "MUTAI ZAISAN ▇▇▇", means trade names,
copyrights, patents, trademarks, service marks, designs, utility models,
know-how, trade secrets and any other similar industrial, commercial and
intellectual property rights (whether or not those have been applied for
or registered in any country), and specifications, drafts, drawings,
manuals, domain names and any other confidential information relating to
such intellectual property rights or the business.
"INVENTORY", "TANAOROSHI SHISAN", means the Raw Materials,
work-in-progress and finished goods used or to be used or to be sold in
connection with or as part of the Transferred Business, which are owned
or kept by the Vendor directly or indirectly, to be transferred to the
Company under the Corporate Separation.
"KOBE STEEL", "KOBE SEIKO", means Kobe Steel Ltd., ("Kabushiki Kaisha
Kobe Seikosho" in Japanese), a corporation organized and existing under
the laws of Japan and having its principal registered office at ▇-▇▇,
▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇, ▇▇▇▇▇, ▇▇▇▇▇ and beneficially
holding approximately 33% of the Vendor's shares as of March 31, 2002.
"LABOR CONTRACT SUCCESSION LAW", "ROUDOU KEIYAKU SHOUKEIHOU", means the
Law concerning Succession etc. of Labor Conditions upon Corporate
Separation of Japan (Law No. 103, 2000).
"LEASED PLANT AND EQUIPMENT", "CHINTAI TAISHOU KOUJOU SETSUBI", means
all the Plant and Equipment which are currently owned or leased by the
Vendor and which are to be leased to the Company under the New Leases or
the Assignment Leases.
"LEASED REAL PROPERTY", "▇▇▇▇▇▇ FUDOUSAN", means land (if any),
buildings and the fixtures thereon and the premises on which such
buildings and the fixtures thereon are established currently owned or
leased by the Vendor to be subject of the new leases (including
sub-leases) entered into between the Vendor and the Company.
"NEW LEASES", "SHIN CHINTAISHAKU KEIYAKU", means the new leases
(including sub-leases) to be entered between the Company and the Vendor
or a Third Party (as appropriate) for the Plant and Equipment, etc.
currently owned or leased by the Vendor, as listed in SCHEDULE 17.
"PLANT AND EQUIPMENT", "KOUJOU SETSUBI", means all the plant buildings,
company residences, equipment, machinery, vehicles, fixtures and
fittings used in the Transferred Business (including both the
Transferred Equipment and the Leased Plant and Equipment but excluding
the Excluded Assets listed in SCHEDULE 6), as described in SCHEDULE 9.
"POST CLOSING ADJUSTMENT AMOUNT", "KUROJINGU GO CHOUSEI KINGAKU", has
the meaning given to it in CLAUSE 3.2(c)
"POST CLOSING PURCHASE PRICE ADJUSTMENT", "KUROJINGU GO JOUTO KAKAKU
CHOUSEI", has the meaning given to it in CLAUSE 3.2(a).
5.
"PURCHASE PRICE", "▇▇▇▇▇▇ JYOUTO KAKAKU", has the meaning given to it in
CLAUSE 3.1(a).
"RAW MATERIALS", "GENZAIRYOU", means all materials (raw or processed)
purchased by the Vendor to use in the Transferred Business and parts
produced by the Vendor and includes:
(a) components, parts, raw materials and ingredients purchased from
Third Parties;
(b) parts produced by the Vendor; and
(c) indirect materials such as consumables, spare parts and supplies
used generally in the Transferred Business.
"REAL PROPERTY", "FUDOUSAN", means land, buildings and the fixtures
thereon.
"SHAREHOLDERS AGREEMENT", "KABUNUSHIKAN KEIYAKU", means the shareholders
agreement dated May 24, 2002 entered into by and between the Vendor and
the Purchaser with respect to matters relating to the Company.
"SHARES", "▇▇▇▇▇▇ KABUSHIKI", means 51% of the total outstanding shares
in the Company to be sold to the Purchaser by the Vendor under this
Agreement, as referred to in RECITAL A and described in detail in
SCHEDULE 10.
"TAX", "ZEIKIN", means a tax, levy, rate, duty, fee, royalty, charge,
additional tax, deduction or withholding imposed by law or by a
Government Agency, together with any related interest, surcharge or
other charge.
"THIRD PARTY/IES", "DAISANSHA", means any party other than the Vendor or
the Purchaser, but including any Vendor Related Company.
"TRANSACTION", "▇▇▇▇▇▇ TORIHIKI", has the meaning given to it in RECITAL
A.
"TRANSFERRED ASSETS", "BUNKATSU TAISHOU SHISAN", means each asset
forming part of the Transferred Business or used in connection with the
Transferred Business to be transferred to the Company pursuant to the
Corporate Separation, as listed in SCHEDULE 6-1.
"TRANSFERRED BUSINESS", "BUNKATSU TAISHOU JIGYOU", means the business of
the Vendor to be transferred to the Company by the Vendor before the
Closing Date, pursuant to the Corporate Separation Plan and to be
operated by the Company after the Corporate Separation Effective Date,
being the following businesses relating to the Vendor's semiconductor
wafer and liquid ▇▇▇▇▇▇▇ ▇▇▇▇▇ materials conveyance system business:
(a) development, design (including software);
(b) manufacturing, assembly;
(c) sales;
(d) installation work; and
6.
(e) service.
For the avoidance of doubt, the Transferred Business will NOT include
the Vendor's (i) hospital conveyance system business and (ii)
semiconductor and liquid crystal manufacturing equipment businesses,
which consist of the EFEM business and the liquid crystal material
loader and robot business.
"TRANSFERRED EMPLOYEE", "BUNKATSU TAISHOU JUUGYOUIN", means each of the
employees, officers and directors of the Vendor related to the
Transferred Business who are to be transferred to the Company under the
Corporate Separation, as listed in SCHEDULE 5, or as otherwise agreed in
writing between the parties.
"TRANSFERRED INTANGIBLE PROPERTY", "BUNKATSU TAISHOU MUTAI ZAISANKEN",
means all Intangible Property to be used in the Transferred Business as
listed in SCHEDULE 7.
"TRANSFERRED EQUIPMENT", "BUNKATSU TAISHOU KOUJOU SETSUBI", means all
the plant buildings and equipment owned by the Vendor in respect of
which the ownership is to be transferred to the Company pursuant to the
Corporate Separation, including all those so described in SCHEDULE 9.
"VALUER", "KANTEININ", means:
(a) an independent certified public accountant acceptable to all
Shareholders; or
(b) failing their agreement within 10 Business Days of commencing
negotiations in relation to the value which the Valuer is to
determine, a Japanese audit corporation with an association with
an internationally accepted accounting firm nominated by the
auditing corporation conducting audit of the Company at that
time.
"VENDOR RELATED COMPANY", "URINUSHI KANREN KAISHA", means any subsidiary
or related company ("subsidiary" and "related company" as defined in the
Regulations Concerning Terminology, Form and Method of Preparation of
Financial Statements, etc. (Ministry of Finance Ordinance No.59, 1963))
of the Vendor.
1.2 RULES FOR INTERPRETING THIS AGREEMENT
Headings are for convenience only, and do not affect interpretation
hereof. The following rules also apply in interpreting this Agreement,
except where the context makes it clear that a rule is not intended to
apply.
(a) A reference to:
(i) legislation (including subordinate legislation) is to
that legislation as amended, re-enacted or replaced, and
includes any subordinate legislation issued under it;
7.
(ii) a document or agreement, or a provision of a document or
agreement, is to that document, agreement or provision
as amended, supplemented, replaced or novated;
(iii) a "person" includes any type of entity or body of
persons, whether or not it is incorporated or has a
separate legal identity, and any administrator or
successor in law of the person; and
(iv) anything (including a right, obligation or concept)
includes each part of it.
(b) A singular word includes the plural, and vice versa.
(c) If an example is given of anything (including a right,
obligation or concept), such as by saying it includes something
else, the example does not limit the scope of that thing.
(d) The word "contract" includes an undertaking or other binding
arrangement or understanding, whether or not in writing.
(e) A reference to "Yen" or "JPY" is to an amount in the legal
currency of Japan.
1.3 BUSINESS DAYS
If the day on or by which a person must do something under this
Agreement is not a Business Day, the person must do it on or by the next
Business Day.
1.4 MULTIPLE PARTIES
If a party to this Agreement consists of more than one person, or a term
is used in this Agreement to refer to more than one party:
(a) an obligation of those persons is joint and several;
(b) a right of those persons is held by each of them severally; and
(c) any other reference to that party or term is a reference to each
of those persons separately, so that (for example) a
representation, warranty or undertaking is given by each of them
separately.
2. AGREEMENT ON SALE AND PURCHASE OF SHARES
2.1 SALE AND PURCHASE
Subject to CLAUSE 8, the Vendor as beneficial owners agree to sell to
the Purchaser, and the Purchaser agrees to buy from the Vendor, the
Shares (together with all rights accrued or attaching to the Shares)
free from any Encumbrance, for the Purchase Price and otherwise on the
terms of this Agreement.
8.
2.2 OWNERSHIP AND RISK
Ownership and risk of the Shares until the Closing, remain solely with
the Vendor and pass to the Purchaser on Closing.
3. PURCHASE PRICE
3.1 PURCHASE PRICE PAYABLE ON CLOSING
(a) The Purchase Price payable by the Purchaser to the Vendor for
the Shares on the Closing Date in accordance with CLAUSE 4.4
shall be JPY 8,160 million ("PURCHASE PRICE"), being the amount
determined in accordance with the following formula:
Purchase Price = enterprise value (JPY 16 billion being the
enterprise value of the Transferred Business) x 51%
3.2 POST CLOSING PURCHASE PRICE ADJUSTMENT
(a) The Purchase Price paid by the Purchaser on the Closing Date in
accordance with CLAUSE 3.1 shall be subject to post-Closing
adjustment ("POST CLOSING PURCHASE PRICE ADJUSTMENT") as
described in this CLAUSE 3.2.
(b) As a result of the Post Closing Purchase Price Adjustment, the
Purchase Price shall be adjusted to reflect any net difference
("DIFFERENCE") between the amount referred to at (i) below and
the amount referred to at (ii) below:
(i) the net asset value calculated in accordance with the
Corporate Separation Effective Date Balance Sheet; and
(ii) the net asset value of JPY 4,325 million (made up of JPY
495 million of capital and JPY 3,830 million of capital
reserve) calculated in accordance with the Assumed
Corporate Separation Balance Sheet attached hereto as
SCHEDULE 18;
with such Difference to be determined pursuant to CLAUSE 4.9.
(c) Subject to CLAUSE 3.2(d), the Post Closing Purchase Price
Adjustment shall be made by way of the Vendor (if the Difference
is a negative amount), or the Purchaser (if the Difference is a
positive amount), paying the other, the amount of 51 % of the
absolute value of such Difference (the "POST CLOSING ADJUSTMENT
AMOUNT"), by wire transfer in immediately available funds to the
bank account, designated by the other party, no later than 7
Business Days after the Difference is determined pursuant to
CLAUSE 4.9.
(d) The Post Closing Purchase Price Adjustment shall only be made by
the relevant Party if the absolute value of the Difference is
greater than JPY 10 million. The exact amount payable by the
relevant Party as a result of the Post Closing Purchase Price
Adjustment shall be determined by rounding the value of the Post
Closing
9.
Adjustment Amount up or down (as appropriate) to the nearest
multiple of JPY 1 million.
4. CLOSING
4.1 TIME AND PLACE OF CLOSING
Closing is to take place at 1 p.m. or such other time which is agreed by
the parties, on the Closing Date at the head office of the Company.
4.2 OBLIGATIONS OF VENDOR TO DELIVER DOCUMENTS AT CLOSING
At Closing, the Vendor must deliver to the Purchaser:
(a) the share certificates for the Shares;
(b) any other documents which are necessary to vest full legal and
beneficial ownership of the Shares in the Purchaser (if any);
(c) a certified copy of the commercial registry (tokibo-tohon) of
the Company issued by the Japanese Legal Affairs Bureau as to
the legal existence of the Company;
(d) a certificate prepared by the representative director of the
Company stating that any and all permissions, licenses,
registration documents, account books, records and other
documents and materials relating to transactions and finance and
which are reasonably necessary for the conduct of the
Transferred Business are held by the Company, and that the
access of shareholders of the Company to such documents and
materials pursuant to the provisions of the Shareholders
Agreement is being approved;
(e) certified copies of the minutes of general meetings of
shareholders and the board of directors of the Vendor
authorising the performance of the transactions contemplated
herein;
(f) certified copies of the minutes of the board of directors of the
Company approving the transfer of the Shares hereunder;
(g) copies of any permissions and licenses issued to the Company
under any Applicable Law relating to its business activities (if
any);
(h) copies of the written resignations of all but 3 of the
directors(being ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ and ▇▇.
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) of the Company, which resignations must
acknowledge that they take effect without any entitlement to
compensation (for loss of office or otherwise) as a result;
(i) a certificate signed by a representative director of the Vendor,
dated the Closing Date, which certifies that the representations
and warranties of the Vendor hereunder are, by reference to the
facts subsisting on the Closing Date, complete
10.
and correct in all material respects as if given on that date,
and that there has been no material breach by the Vendor of its
obligations under this Agreement or the Shareholders Agreement;
and
(j) where required under the terms and conditions of any agreements,
including but not limited to leases for Real Property or
buildings, which are being transferred to the Company as part of
the Corporate Separation, certificates from each creditor or
lessor having granted consent to the transfer of the said lease
to the Company and the acquisition of the Shares by the
Purchaser (if necessary) and the other transactions contemplated
hereby, and representing that there are no outstanding Claims or
litigation against the Vendor for the reason of not obtaining
any such consent.
4.3 OTHER OBLIGATIONS OF VENDOR AT CLOSING
The Vendor shall conduct any other matters necessary to complete the
Transaction reasonably requested by the Purchaser.
4.4 PAYMENT OBLIGATION OF PURCHASER AT CLOSING
(a) The Purchaser must pay the whole Purchase Price, to the Vendor,
or as the Vendor may in writing direct, by immediately available
funds in Japanese yen.
(b) Payment by the Purchaser of the Purchase Price pursuant to
CLAUSES 4.4(a) above shall be made by way of wire transfer into
the bank account designated by the Vendor to the Purchaser.
Designation of the bank account by the Vendor shall be made by
written notice to the Purchaser at least 10 Business Days before
the Closing Date.
4.5 OBLIGATIONS OF PURCHASER TO DELIVER DOCUMENTS AT CLOSING
At the Closing, the Purchaser must deliver to the Vendor:
(a) certified copies of the minutes of its board of directors
authorising the performance of the transactions contemplated
hereby;
(b) a notice of receipt of share certificates; and
(c) a certificate signed by a representative director of the
Purchaser, dated the Closing Date, which certifies that the
representations and warranties of the Purchaser hereunder are,
by reference to the facts subsisting on the Closing Date,
complete and correct in all material respects as if given on
that date, and that there has been no material breach by the
Purchaser of its obligations under this Agreement or the
Shareholders Agreement.
11.
4.6 OTHER OBLIGATIONS OF PURCHASER AT CLOSING
The Purchaser shall conduct any other matters necessary to complete the
Transaction reasonably requested by the Vendor.
4.7 [OMITTED]
4.8 PROCEDURES IMMEDIATELY AFTER CLOSING
(a) Immediately after the Closing, the Purchaser shall request that
the registered shareholder concerning the Shares in the
shareholders' register of the Shares be transferred to it and
the Vendor shall cause the Company to make such transfer. After
the Closing and until such transfer has been made to the
Purchaser, the Vendor shall do any reasonable act required by
prior written notice of the Purchaser in its capacity as
shareholder listed in the shareholders' register of the Shares.
(b) Immediately after the Closing, the Vendor shall, in order for
the persons designated by the Purchaser pursuant to the
provisions of the Shareholders Agreement to be appointed as
directors or auditors of the Company, cause the Company to hold
an extraordinary general meeting of shareholders and take any
action necessary for such appointment.
4.9 DETERMINATION OF CORPORATE SEPARATION EFFECTIVE DATE BALANCE SHEET
(a) As soon as possible after the Closing, the Vendor and the
Purchaser shall cause the Valuer to determine the Corporate
Separation Effective Date Balance Sheet in accordance with the
method agreed by the Vendor and the Purchaser. Such
determination of the Corporate Separation Effective Date Balance
Sheet shall be planned to be completed within 7 Business Days
after commencement by the Valuer and must be completed in any
case within 30 Business Days following the Corporate Separation
Effective Date.
(b) The Vendor and the Purchaser shall cause the Valuer, if there
exists any difference between the real net asset value and the
assumed net asset value, to issue a written document stating
each amount and the reason for the difference, to the Purchaser
and the Vendor. Such determination of the Valuer shall be
binding on the Purchaser and the Vendor.
(c) Any expenses arising relating to the Valuer in respect of the
provisions of this CLAUSE 4.9 shall be borne by the Vendor and
the Purchaser equally.
12.
5. OBLIGATIONS OF PARTIES BEFORE AND AFTER CLOSING
5.1 CONDUCT OF TRANSFERRED BUSINESS
The Vendor must ensure that, until the Corporate Separation Effective
Date it:
(a) conducts the Transferred Business as a going concern with all
due care and in accordance with normal and prudent practice
(having regard to the nature of the Transferred Business and its
past practice);
(b) uses its commercially reasonable best endeavors to:
(i) maintain or enhance the profitability and value of the
Transferred Business;
(ii) properly transfer to the Company and thereafter retain
all Transferred Employees;
(iii) reasonably maintain and protect all Transferred Assets
in the ordinary course of business; and
(iv) reasonably maintain and protect all property which is
the subject of New Leases or Assignment Leases in the
ordinary course of business.
(c) does not, without giving prior written notice to the Purchaser,
in relation to the Transferred Business (provided that if the
Purchaser objects to such notice, the Vendor shall not carry out
such acts, however, the Purchaser may not unreasonably object to
such notice):
(i) enter into any material contract or terminate or alter
any term of any contract other than in the ordinary
course of business;
(ii) incur any expenditure or liability more than JPY 40
million or commitment longer than 1 year or, except in
the ordinary course of business, any other expenditure,
liability or commitment;
(iii) other than in the ordinary course of business:
(A) dispose of;
(B) grant an option over; or
(C) grant an Encumbrance (excluding any rights
naturally incurred pursuant to the law in
respect of movable property) over,
any of the Transferred Assets or any of the property
which is the subject of New Leases or Assignment Leases;
(iv) make any new investment, the amount of which is more
than JPY 40 million, including the purchase or lease of
Plant and Equipment or furniture;
13.
(v) other than in the ordinary course of employee relations,
hire new employees in relation to the Transferred
Business or terminate the employment or service
agreement, of any Transferred Employee or alter the
terms of employment or service (including the terms of
pensions or any other benefit) of any Transferred
Employee; or
(vi) agree to do any of those things specified in (i) through
(v); and
(d) maintains insurance at the same level as that established at the
date of this Agreement in relation to the Transferred Business.
5.2 CONDUCT OF THE COMPANY
The Vendor must, for the period from (and including) the Corporate
Separation Effective Date to the Closing Date, cause the Company:
(a) to conduct the Transferred Business as a going concern with all
due care and in accordance with normal and prudent practice
(having regard to the nature of the Transferred Business and its
past practice);
(b) to use its commercially reasonable best endeavors to:
(i) maintain or enhance the profitability and value of the
Transferred Business;
(ii) retain all Transferred Employees; and
(iii) maintain and protect its assets in reasonable condition
in the ordinary course of business;
(c) not to, without the prior written consent of the Purchaser:
(i) enter into any material contract, terminate or alter any
term of any contract, other than in the ordinary course
of business;
(ii) incur any expenditure or liability more than JPY 40
million or commitment longer than 1 year or, except in
the ordinary course of business, any other expenditure,
liability or commitment;
(iii) other than in the ordinary course of business:
(A) dispose of;
(B) grant an option over; or
(C) grant an Encumbrance (except for any rights
naturally incurred pursuant to the law in
respect of movable property) over,
any of the assets of the Company;
14.
(iv) make any new investment, the amount of which is more
than JPY 40 million, including the purchase or lease of
Plant and Equipment or furniture;
(v) other than in the ordinary course of employee relations,
hire new employees in relation to the Transferred
Business or terminate the employment or service
agreement of any Transferred Employee, or alter the
terms of employment or service (including the terms of
pensions or any other benefit) of any employee;
(vi) make, accrue or become liable for any bonus, profit
sharing or incentive payment or other similar payment,
except for accruals under existing plans, if any, and
increase the salary, bonus or other similar payment
payable or to become payable by it to any of its
officers or employees, other than increases in the
ordinary course of business;
(vii) waive any rights of material value (other than in the
ordinary course of business);
(viii) allot or issue any share, any securities convertible
into or exchangeable with any share, or any securities
or any rights which may entitle the holder thereof to
undertake any share;
(ix) declare or pay any dividend or make any other
distribution of its assets or profits;
(x) alter its articles of incorporation;
(xi) pass any special resolution relating to the Company
(except for approval of the transfer of the Shares
hereunder); or
(xii) agree to do any of those things specified in (i) through
(xi) with any person other than the Purchaser.
5.3 CONTINUITY OF RELATIONSHIP WITH CUSTOMERS AND SUPPLIERS
(a) Without in any way limiting CLAUSE 5.1, until the Corporate
Separation Effective Date, the Vendor shall continue to accept
customer orders in the ordinary course of business for all
products of the Transferred Business and, from (and including)
the Corporate Separation Effective Date to the Closing Date,
shall cause the Company to continue to accept such customer
orders; provided that ceasing to accept customer orders for
reasonable management reasons of the Vendor or the Company shall
not be hereby prevented.
(b) The Vendor shall reasonably cooperate as necessary in
communications with suppliers and customers to advise them of
the Corporate Separation and transfer of the Transferred
Business to the Company and to facilitate continuity in the
existing relationships with suppliers and customers.
15.
(c) The Vendor shall provide the Purchaser with reasonable
facilities and other support to access the customers of the
Transferred Business in order to enable the Purchaser to conduct
reviews ("CUSTOMER REVIEWS") in respect of the customers'
current relationship with the Vendor and anticipated future
relationships with the Company.
5.4 ACCESS TO INFORMATION OF COMPANY BY PURCHASER
During the period from (and including) the Corporate Separation
Effective Date until the Closing, the Vendor shall arrange for the
Purchaser or its representative to have the following rights in respect
of the Company during normal business hours, subject to the prior
consent of the Vendor (provided that the Vendor may not unreasonably
withhold such consent); further provided that the Purchaser or its
representative may not unreasonably restrict the Vendor or the Company
from conducting their respective business in the exercise of such
rights:
(i) access to any of the facilities used by the Company;
provided that the Purchaser shall follow the reasonable
directions of the Vendor and the Company (including the
safety management regulations and security rules of such
facilities);
(ii) the right to examine and, if desired, copy any records,
assets and affairs of the Company (provided that if the
transaction relating to the transfer of the Shares has
not reached the Closing, any copies of such records etc.
shall be destroyed or returned to the Company); and
(iii) the right to consult either its auditor or other
officers or any of the employees connected with the
Company, concerning the Company.
5.5 VENDOR ASSISTANCE PENDING CLOSING
During the period from (and including) the Corporate Separation
Effective Date until the Closing, the Vendor must comply with all
reasonable requests from the Purchaser; provided that such requests may
not unreasonably prevent the Vendor from conducting its business:
(a) to the extent reasonable, supply to the Purchaser or its
representative any information in its possession or control in
relation to the Transferred Business; and
(b) to the extent reasonable, assist the Purchaser to gain knowledge
of the Transferred Businesses and the operation and conduct of
the Transferred Businesses.
5.6 COMPLIANCE WITH LAWS PENDING CLOSING
The Vendor shall,
(a) until the Corporate Separation Effective Date, comply in all
material respects with all Applicable Law which is applicable to
it in relation to the conduct of the
16.
Transferred Business and perform and comply in all material
respects with all contracts, commitments and obligations by
which it is bound in relation to the Transferred Business; and
(b) during the period from (and including) the Corporate Separation
Effective Date until the Closing, cause the Company to comply in
all material respects with all Applicable Law which is
applicable to it and exercise its authority to cause the Company
to perform and comply in all material respects with all
contracts, commitments and obligations by which it is bound.
5.7 PERFECTION
The Vendor shall perfect the transfer of all the assets, liabilities and
contracts relating to the Transferred Business to the Company (including
but not limited to the transfer of all the rights, obligations, assets
and any other things to be transferred relating to or constituting any
part of the Transferred Business) within 90 days after the Corporate
Separation Effective Date to the satisfaction of the Purchaser and shall
cause the Company to effect such perfection (including cooperation for
perfection by the Vendor); provided that perfection to be effected by
the Vendor earlier than this date pursuant to CLAUSE 8.2(g), shall be
subject to that provision.
5.8 ENSURING SATISFACTION OF CLOSING CONDITIONS
(a) Each party shall use its commercially reasonable best endeavors
to satisfy or cause Third Parties to satisfy each condition
listed in CLAUSE 8 not later than the Closing Date; and
(b) Each party shall notify the other party in writing if there
occurs any event that has or is likely to cause any of the
conditions listed in CLAUSE 8 to fail to be satisfied by the
Corporate Separation Effective Date or the Closing Date (as the
case may be).
5.9 NOTICE OF CHANGES
If during the period before the Closing the Vendor becomes aware of an
event which has or may have a material effect on the profitability of
the Transferred Business, the Company or the value of the Shares or may
cause a breach of any of the representations and warranties, the Vendor
must immediately give a written notice to the Purchaser reasonably
describing that event.
5.10 REPORTS, TAXES
During the period before the Closing, the Vendor shall duly and timely
file, or cause the Company to duly and timely file, all reports or
returns concerning any business and taxation required to be filed with
any Government Agency in relation to the Transferred Business and until
the Corporate Separation Effective Date will pay on the statutory due
date, or cause the Company to pay thereafter, all Tax levied upon
either, in any way associated with the Transferred Business or any of
the Transferred Assets.
17.
5.11 APPROVAL OF TRANSFER OF THE SHARES
The Vendor shall, not later than the Closing Date, cause the Company to
pass a resolution approving transfer of the Shares from the Vendor to
the Purchaser hereunder at a meeting of the board of directors duly
convened.
5.12 OBTAINING COOPERATION FROM ASYST TECHNOLOGIES
The Purchaser shall issue a document consented to by the Vendor (which
consent shall not be unreasonably withheld) ensuring the payment of the
Purchase Price on the Closing Date not later than the Closing Date to
the Vendor, independently or jointly with Asyst Technologies or
otherwise. Any such document issued jointly by the Purchaser and Asyst
Technologies shall include (amongst other things) a joint and several
guarantee.
5.13 FAITHFUL NEGOTIATION REGARDING CONDITIONS OF ANCILLARY AGREEMENTS
The Vendor and the Purchaser shall, not later than the Corporate
Separation Effective Date, negotiate in good faith based on SCHEDULE 17
to agree on the substance of the Ancillary Agreements between the
parties. The Vendor shall, in respect of the Ancillary Agreements to
which the Vendor Related Company or other Third Parties and the Company
become parties, not later than the Corporate Separation Effective Date,
take measures necessary to cause the Vendor Related Company and/or such
Third Parties to accept the negotiations with the Company regarding the
substance of such Ancillary Agreements in good faith. SCHEDULE 17 is a
draft of the Ancillary Agreements reflecting the basic policy of the
parties as of the execution date hereof but in relation to which neither
party has finally agreed.
5.14 OBLIGATION OF VENDOR TO PROVIDE INFORMATION CONCERNING TRANSFERRED
BUSINESS AFTER CLOSING
During the period from (and including) the Closing Date to the date 12
months after the following month of the calendar month including the
Closing Date (including such month), if the Purchaser requests in
writing to the Vendor, the Vendor shall, to the extent commercially
reasonable, do the following acts:
(a) provide, to the extent reasonable, the Purchaser with
information held or managed by the Vendor in respect of the
Company or matters relating to the Transferred Business as
specified in such written request (if any); and
(b) if so requested in writing, take any reasonable measures
necessary for the Purchaser to gain knowledge of the Company and
the Transferred Business, at the time specified in such written
request and at the head office of the Company.
5.15 INTERPRETATION OF OBLIGATION OF VENDOR TO CAUSE COMPANY TO DO CERTAIN
ACTS
In this Agreement, in respect of the obligations of the Vendor to cause
the Company to do certain acts, if the Vendor exercises all rights
exercisable by it in relation to the Company, it shall not constitute a
breach of the Vendor's obligations, if the Company fails to do such act.
18.
6. VENDOR'S REPRESENTATIONS AND WARRANTIES
6.1 REPRESENTATIONS AND WARRANTIES
In consideration of the Purchaser agreeing to buy the Shares, the Vendor
represents and warrants to the Purchaser that each of the
representations and warranties listed in SCHEDULE 11 are complete and
accurate as of the date of this Agreement (except those representations
and warranties concerning the Company, the Shares and any other rights
to be created pursuant to the Corporate Separation which shall be
subject to representations and warranties of the Vendor as of the
Closing Date).
6.2 EXCEPTIONS
The representations and warranties are subject to any exceptions
specified in SCHEDULE 12.
6.3 REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in this CLAUSE 6 (including those
representations and warranties concerning the Company, the Shares and
any other rights to be created pursuant to the Corporate Separation) are
taken to be repeated on the Closing Date on the basis of the facts and
circumstances at that date even if any time other than the Closing Date
is determined as the time when such representations and warranties shall
be made.
7. PURCHASER'S REPRESENTATIONS AND WARRANTIES
7.1 REPRESENTATIONS AND WARRANTIES
The Purchaser represents and warrants to the Vendor that:
(a) it is a corporation duly incorporated and validly existing under
the Applicable Law of Japan;
(b) it has full legal capacity:
(i) to own its property and assets and to carry on its
business; and
(ii) to enter into this Agreement and to carry out the
transactions contemplated herein;
(c) all corporate action (including the approval of Asyst
Technologies) that is necessary for the Authorization of its
entry into this Agreement and its carrying out the transactions
contemplated hereby has been completed;
(d) it holds each Authorization that is necessary to:
(i) execute this Agreement and to carry out the transactions
contemplated herein; or
19.
(ii) ensure that this Agreement is legal, valid, binding and
admissible in evidence,
and it is complying with any conditions to which any of these
Authorizations is subject;
(e) it has the financial capacity to raise the funds necessary to
pay the Purchase Price, either in its own right, or with the
support of Asyst Technologies and at the Closing Date it will
already have procured all necessary funds.
(f) this Agreement constitutes its legal, valid and binding
obligations, and is enforceable against it in accordance with
its terms hereof (except to the extent limited by the Applicable
Law or general provisions affecting creditors' rights
generally);
(g) neither its execution of this Agreement nor the carrying out by
it of the transactions contemplated herein, does or will:
(i) contravene any Applicable Law which is applicable to it
or any of its property;
(ii) contravene any Authorization;
(iii) contravene any undertaking or instrument binding on it
or any of its property; or
(iv) contravene its articles of association.
7.2 REPETITION OF REPRESENTATIONS AND WARRANTIES
The representations and warranties in this CLAUSE 7 are taken to be
repeated on the Closing Date on the basis of the facts and circumstances
as at that date.
8. CONDITIONS PRECEDENT
8.1 CONDITIONS PRECEDENT TO OBLIGATIONS OF VENDOR
All the obligations of the Vendor to sell the Shares and to do any other
acts at the Closing shall, at or before the Closing, be subject to the
following conditions:
(a) no preliminary or final injunction or any other order which
determines the completion of the transactions contemplated
herein to be illegal shall have been made;
(b) the Purchaser shall have fully performed all its obligations
which are required to be performed hereby prior to the Closing
except for those which do not materially and adversely affect
this Agreement or the completion of transaction contemplated
20.
herein generally, and the Purchaser shall have provided payment
of the Purchase Price and shall have issued the documents
required in CLAUSE 4.5;
(c) each of the representations and warranties made by the Purchaser
in this Agreement or the Shareholders Agreement shall be true
and correct in all material respects as of the date of this
Agreement, the Corporate Separation Approval Date and the
Closing Date, respectively, as if made on each of these dates
(except to the extent that any such representation and warranty
is specifically provided only as of an earlier date, in which
case such representation and warranty shall be true and correct
in all material respect on such earlier date);
(d) the agreement of Asyst Technologies to provide financial support
to the Purchaser to enable it to carry out the transactions
contemplated herein shall be valid and enforceable as of the
Closing Date; and
(e) agreement on the conditions of the Ancillary Agreements shall
have been established between the Vendor and the Purchaser.
8.2 CONDITIONS PRECEDENT TO OBLIGATIONS OF PURCHASER
All the obligations of the Purchaser to pay the Purchase Price and to do
any other acts at the Closing shall, at or before the Closing, be
subject to the following conditions:
(a) the Corporate Separation Plan shall be approved by the
shareholders of the Vendor in accordance with the articles of
incorporation of the Vendor and the Applicable Law;
(b) any and all the procedures which need to be performed or
satisfied on or before the approval of the Corporate Separation
Plan under the Commercial Code, the Labor Contract Succession
Law and other Applicable Law shall have been fully performed or
satisfied by the Vendor to the reasonable satisfaction of the
Purchaser, including but not limited to:
(i) the Vendor consulting with certain employees of the
Vendor conducting the Transferred Business, as required
under the Commercial Code; and
(ii) the Vendor giving notice to certain employees of the
Vendor conducting the Transferred Business and to any
relevant labor unions, as required under the Labor
Contract Succession Law;
(c) all obligations of the Vendor which must be performed prior to
the Closing Date under the Shareholders Agreement (if any) shall
have been performed in all material respects prior to the
Closing Date;
(d) each of the representations and warranties made by the Vendor in
this Agreement or the Shareholders Agreement shall be true and
correct in all material respects as of the date of this
Agreement, the Corporate Separation Approval Date and the
Closing Date, respectively, as if made on each of these dates
(except to the extent
21.
that any such representation and warranty is specifically
provided only as of an earlier date, in which case such
representation and warranty shall be true and correct in all
material respect on such earlier date);
(e) the Company shall be duly incorporated and operated by or on
behalf of the Vendor under the laws of Japan in accordance with
the substance of SCHEDULE 1;
(f) no preliminary or final injunction or any other order which
determines completion of the transactions contemplated herein to
be illegal shall have been made;
(g) the perfection, to the reasonable satisfaction of the Purchaser,
of the transfer of the assets, liabilities and contracts
relating to the Transferred Business to the Company (including
but not limited to, the transfer of all the rights, obligations,
assets and any other things to be transferred relating to or
constituting any part of the Transferred Business) agreed by the
parties hereto prior to the Closing;
(h) all the Ancillary Agreements shall have been entered into by and
between the Vendor, any Vendor Related Company, the Purchaser,
the Company and any other party, as the case may be, on or
before the Closing Date and, all obligations, if any, of the
Vendor, the Vendor Related Company, the Company or other party
which shall be performed on or before the Closing Date under the
relevant Ancillary Agreement shall have been performed in all
material respects; and
(i) the Vendor shall have fully performed all its obligations which
are required to be performed by it hereby prior to the Closing
(including matters set out in SCHEDULE 1) except for those which
do not materially or adversely affect this Agreement or the
completion of the transactions contemplated herein generally,
and the Vendor shall have provided the share certificates and
documents required in CLAUSE 4.2.
8.3 FULFILLMENT BY WAIVER
A condition referred to in CLAUSES 8.1 and 8.2 is only waived if the
Purchaser or the Vendor gives a written notice of waiver of the
condition to the Vendor or the Purchaser, as the case may be.
22.
9. OBLIGATION TO AVOID COMPETITIVE BUSINESS
9.1 DEFINITIONS
The following definitions apply in this CLAUSE 9.
"RESTRAINT PERIOD" means the period from the Corporate Separation
Effective Date to the Closing.
"RESTRAINT AREA" means Japan or any other area where the Transferred
Business is carried out by the Company at any time during the Restraint
Period.
"RESTRAINED BUSINESS" means any business directly competitive with the
business of the Company but does not include any other business other
than the Transferred Business currently operated by the Vendor (being
the hospital conveyance system business and semiconductor and liquid
crystal manufacturing equipment businesses). The semiconductor and
liquid crystal manufacturing equipment businesses consist of the EFEM
business and the liquid crystal material loader and robot business.
9.2 RESTRAINT OBLIGATION
Except as permitted by CLAUSE 9.3, the Vendor must not, and must not
cause any Vendor Related Companies to, during the Restraint Period, in
the Restraint Area:
(a) promote or participate in any Restrained Business (whether on
their own account, in partnership or joint venture or
otherwise); or
(b) have any interest in the Restrained Business (directly or
indirectly, or through any interposed body corporate, trust,
principal, agent, shareholder, beneficiary, or as an independent
contractor, consultant or in any other capacity).
9.3 PERMITTED INVOLVEMENT
CLAUSE 9.2 shall not prevent the Vendor, together with any Vendor
Related Companies, being the holders in aggregate of less than 5% of the
issued shares or units of a body corporate or unit trust listed on a
stock market.
9.4 NON-INTERFERENCE
The Vendor must not, and must not cause any Vendor Related Company to,
in relation to the Restrained Business during the Restraint Period:
(a) disclose, or use to its advantage or to the disadvantage of the
Company:
(i) confidential information (excluding widely known
information) about any customer of the Vendor relating
to the Restrained Business as of the Corporate
Separation Effective Date or any person who has been the
customer of the Vendor relating to the Restrained
Business within the 2 year
23.
period prior to the Corporate Separation Effective Date
(collectively, the "CUSTOMER"); or
(ii) any Transferred Intangible Property of, or other
confidential information about, the Company or its
organization, finances, transactions or business; or
(b) employ or solicit to employ any employee of the Company.
9.5 REASONABLENESS OF RESTRAINT
The Vendor agrees that each of the restraint obligations imposed by
CLAUSE 9.2:
(a) is reasonable in its extent (as to duration, geographical area
and conduct) having regard to the interests of each party to
this Agreement;
(b) extends no further (in any respect) than is reasonably
necessary; and
(c) is solely to protect the Purchaser as purchaser of the Shares in
respect of the goodwill of the Company and the Transferred
Business.
10. TRANSFER OF TRANSFERRED BUSINESS UNDER CORPORATE SEPARATION AND RELATED
MATTERS
10.1 TRANSFER OF TRANSFERRED BUSINESS
The Vendor shall, unless otherwise provided for in this Agreement or the
Shareholders Agreement, use its best endeavors to take all necessary
procedures to properly transfer the assets and rights and obligations
constituting the Transferred Business to the Company. Specific methods
relating to the above shall be agreed upon between the Vendor and the
Purchaser by the Corporate Separation Effective Date, however the
procedures listed in SCHEDULE 19 are expected at the present time.
10.2 IT SYSTEM OF THE COMPANY
The Vendor shall satisfy, by the Corporate Separation Effective Date,
the technical requirements reasonably necessary for the smooth
performance of the Transferred Business and from (and including) the
Corporate Separation Effective Date, take all necessary measures to
establish an IT system usable by the Company independently, including
but not limited to the use by the Company of the Vendor's IT system
and/or the development by the Vendor of an appropriate IT system for the
Company. Usage fees and other usage conditions relating to such IT
system shall be determined separately in the Ancillary Agreements
relating to such IT system, agreed upon between the Vendor and the
Purchaser.
24.
10.3 TRANSITION MEASURES BEFORE OBTAINING PERMISSION UNDER THE CONSTRUCTION
BUSINESS LAW
Until the Company obtains the permission provided for in Article 3 of
the Construction Business Law, the Vendor shall, in order to transfer
the Transferred Business smoothly to the Company, use commercially
reasonable endeavors to:
(a) obtain the consent of the customers of the Transferred Business
to the transfer of the Transferred Business from the Vendor to
the Company;
(b) with respect to the customers of the Transferred Business,
remain after the Corporate Separation Effective Date as the
counterparty to any agreements in respect of the construction
related part of each such agreement only, and if the
construction under any such contract is required before the
Company obtains the construction business permission, the Vendor
shall carry out such construction. After the Company has
obtained the construction business permission, the Vendor shall
assign its rights under the agreement to the Company and shall
lose the same;
(c) if the Company enters into any new agreements with customers
before it obtains the construction business permission, it shall
request customers to place orders not related to the
construction (such as purchase or production of machinery)
separately as much as possible, and the Vendor shall cooperate
in the negotiations with such customers; and
(d) if customers do not agree to place orders in the manner
described in (c) above, the customer and the Vendor and the
Company shall enter into an agreement, and if construction is
necessary before the Company obtains the construction business
permission, the Vendor shall undertake such construction and
after the Company obtains the construction business permission,
the Vendor shall lose its position as the party thereto and the
Vendor shall cooperate in negotiations with such customer in
relation to the entering into of such agreements.
11. CONFIDENTIALITY AND PUBLIC ANNOUNCEMENTS
11.1 INFORMATION FALLING UNDER CONFIDENTIAL INFORMATION
"CONFIDENTIAL INFORMATION" in this Agreement means (1) whether it is
conveyed in writing, orally or by electronic media, any information
(including but not limited to information, proprietary information,
trade secrets, inventions, patents, designs, opinions, forecasts
(financial or otherwise), project related information, drawings,
financial statements, know-how and technology which require careful
treatment for competitive reasons) provided or disclosed by either party
or a company related to it or the Company (including but not limited to
the directors of the Company) ("DISCLOSING PARTY") to the other party or
a company related to it ("RECEIVING PARTY") in relation to this
Agreement, the Company or the Transferred Business and (2) tangible or
intangible items containing
25.
such information; provided that Confidential Information shall not
include that which falls under any of the following items (a) through
(c);
(a) any information which was publicly known at the time of
disclosure due to reasons other than the breach of this
Agreement and any information which becomes publicly known after
disclosure due to reasons other than the breach of this
Agreement;
(b) any information which was already obtained legally from any
source other than the Disclosing Party without breaching the
confidentiality obligations of the Receiving Party owed to the
Disclosing Party hereunder, and any information which is
hereafter obtained legally from any source other than the
Disclosing Party without breaching the confidentiality
obligations of the Receiving Party to the Disclosing Party
hereunder; or
(c) any information independently developed by the Receiving Party
without reference to or use of Confidential Information
disclosed by the Disclosing Party.
11.2 TREATMENT OF CONFIDENTIAL INFORMATION
A Receiving Party agrees to comply with the following provisions in
respect of Confidential Information unless otherwise consented in
writing before or after the fact by the Disclosing Party:
(a) the Receiving Party shall not use Confidential Information
directly or indirectly, in any respect or for any reason, for
itself or any third party except for the purpose of carrying out
the transactions contemplated in this Agreement (the "PERMITTED
PURPOSE") and shall not allow any third party to use the same;
(b) in handling Confidential Information, the Receiving Party shall
pay attention as if protecting its own proprietary information,
useful information for competitive purposes or information
relating to trade secrets, and keep the same confidential (in
any case, at least to the extent considered reasonable);
(c) the Receiving Party shall not copy or reproduce Confidential
Information except as required to carry out the Permitted
Purpose unless it obtains the prior written approval of the
Disclosing Party in respect of that specific Confidential
Information which it is necessary to copy or reproduce. In such
case, the Disclosing Party shall not unreasonably withhold such
written approval. The Receiving Party shall, on any such copy or
reproduction, indicate that such Confidential Information is
proprietary and confidential; and
(d) In respect of disclosure of Confidential Information, disclosure
by the Receiving Party shall be limited to those persons who
have a "need to know" for the Permitted Purpose, employees of
the Receiving Party subjected to a binding written obligation to
keep the Confidential Information confidential, and any other
person who is
26.
bound by enforceable regulations relating to professional
responsibility in respect of the confidentiality of the
Confidential Information.
11.3 RETURN OF CONFIDENTIAL INFORMATION
If any transaction contemplated in this Agreement fails to be completed
by Closing, the Receiving Party shall promptly:
(a) Return to the Disclosing Party or destroy any and all
Confidential Information disclosed to it;
(b) Return to the Disclosing Party any and all Confidential
Information distributed to any third parties by the Receiving
Party or ensure that such third parties destroy any Confidential
Information distributed to them, by taking all reasonable
measures;
(c) To the extent reasonably possible, delete any and all
Confidential Information from the computers in which such
Confidential Information is installed or programmed, and ensure
that any third parties who received Confidential Information
delete such Confidential Information from the computer in which
the same is installed or programmed, to the extent reasonably
possible by taking all reasonable measures; and
(d) Destroy any and all reproductions, memos, reports, analysis
results or memorandums prepared by or for the Receiving Party,
which contains Confidential Information except for those
required to be kept to comply with professional or legal
obligations.
11.4 EXCEPTIONS
A Party may make such disclosures in relation to this Agreement as it
may think necessary:
(a) to its professional advisers upon those persons undertaking to
keep confidential any information so disclosed; or
(b) Notwithstanding CLAUSE 11., the Receiving Party may disclose
Confidential Information if so required by an order of a
competent court or the Applicable Law then valid; provided that
the Receiving Party shall promptly notify the Disclosing Party
of such requirement so that the Disclosing Party may file a
protective order or take other appropriate relief prior to such
disclosure. The Receiving Party shall take any reasonable
measures required by the Disclosing Party to support the filing
of such protective order or other appropriate relief at the
Disclosing Party's expense.
27.
12. INDEMNITY
12.1 INDEMNITY BY VENDOR
(a) Subject to the terms and conditions of this Agreement, the
Vendor shall defend, indemnify and hold the Purchaser harmless
from and against all Claims, losses, liabilities, damages and
expenses (including but not limited to reasonable fees and
expenses of attorneys incurred in investigation or defense of
any proceeding taken by third parties) ("DAMAGES") arising out
of or related to the breach of a representation and warranty or
covenant of the Vendor in this Agreement.
(b) When the Purchaser comes to recognize that an event entitling
the Purchaser to seek indemnity against the Vendor hereunder has
occurred (including an event whereby a third party has initiated
any proceeding against the Purchaser on grounds stated in the
immediately preceding paragraph), the Purchaser shall notify the
Vendor of the details of such event in writing without delay;
provided that the Vendor will not be released from its liability
against the Purchaser even if such notice is delayed, except to
the extent of damages actually suffered by the Vendor due to
such delay, which damages shall be deducted from the amount of
the Vendor's liability.
(c) With respect to a proceeding initiated by a third party, the
Vendor shall have the right to assume the defense of such
proceeding brought by the third party, at the Vendor's own
expense, with counsel chosen by the Vendor, by giving written
notice to such effect to the Purchaser within 30 days following
the Vendor's receipt of notice to such effect from the
Purchaser. If the Purchaser claims for indemnity against the
Vendor, the Purchaser will promptly provide the Vendor with (1)
copies of any notices and documents served upon the Purchaser
and (2) all reasonable cooperation which the Vendor deems
necessary to defend such claim by the Purchaser, including,
without limitation, providing the Vendor and its outside legal
counsel with access to any potentially-relevant documents,
information, or individuals within the control of the Purchaser,
other than any privileged documents. If any Confidential
Information of the Purchaser is included in such documents or
information, the Vendor and the Purchaser shall enter into
appropriate confidentiality commitments to protect such
documents or information. Notwithstanding that the Vendor may
have elected by written notice to assume the defense of any
claim by the Purchaser, the Purchaser will have the right to
participate in the investigation and defense thereof, with
separate counsel chosen by the Purchaser, but in such event, the
fees and expenses incurred by the Purchaser for such separate
counsel will be paid by the Purchaser.
(d) Notwithstanding anything in this CLAUSE 12.1 to the contrary,
with respect to any proceedings initiated by a third party, (1)
the Vendor will have no obligation with respect to any Damages
if the Purchaser, without the written consent of the Vendor,
settles or compromises such proceedings or consents to the entry
of any judgment and (2) the Vendor will not, without the written
consent of the Purchaser with respect to any Damages (A) settle
or compromise such proceeding or consent to the
28.
entry of any judgment (which does not include as an
unconditional term thereof the delivery to the Purchaser of a
written release of the Purchaser from all liability in respect
of such proceeding duly signed by the relevant third party,
which release will be reasonably satisfactory in form and
substance to counsel for the Purchaser) or (B) settle or
compromise any such proceeding in any manner that, in the
reasonable judgment of the Purchaser or its counsel, will
adversely affect the Purchaser other than as a result of
monetary damages or other monetary payments.
(e) Upon the payment of any settlement or judgment pursuant to this
CLAUSE 12.1 with respect to any assertion by the Purchaser, the
Vendor will be subrogated to all rights and remedies of the
Purchaser against any third party in respect of such Purchaser's
assertion to the extent of the amount so paid by the Vendor.
(f) The indemnity provided for in this CLAUSE 12.1 will be the
Purchaser's exclusive source of recovery against the Vendor with
respect to the matters covered hereby.
12.2 INDEMNITY BY PURCHASER
(a) Subject to the terms and conditions of this Agreement, the
Purchaser shall defend, indemnify and hold the Vendor harmless
from and against all Damages arising out of or related to the
breach of a representation and warranty or covenant of the
Purchaser in this Agreement.
(b) When the Vendor comes to recognize that an event entitling the
Vendor to seek indemnity against the Purchaser hereunder has
occurred (including an event whereby a third party has initiated
any proceeding against the Vendor on grounds stated in the
immediately preceding paragraph), the Vendor shall notify the
Purchaser of the details of such event in writing without delay;
provided that the Purchaser will not be released from its
liability against the Vendor even if such notice is delayed,
except to the extent of damages actually suffered by the
Purchaser due to such delay, which damages shall be deducted
from the amount of the Purchaser's liability.
(c) With respect to a proceeding initiated by a third party, the
Purchaser shall have the right to assume the defense of such
proceeding brought by the third party, at the Purchaser's own
expense, with counsel chosen by the Purchaser. If the Vendor
claims for indemnity against the Purchaser, the Vendor will
promptly provide the Purchaser with (1) copies of any notices
and documents served upon the Vendor and (2) all reasonable
cooperation which the Purchaser deems necessary to defend such
claim by the Vender, including, without limitation, providing
the Purchaser and its outside legal counsel with access to any
potentially-relevant documents, information, or individuals
within the control of the Vendor, other than any privileged
documents. If any Confidential Information of the Vendor is
included in such documents or information, the Purchaser and the
Vendor shall enter into appropriate confidentiality commitments
to protect such documents or information. Notwithstanding that
the Purchaser may have elected by written notice to assume the
defense of any claim by the Vender, the Vendor will have the
right to participate
29.
in the investigation and defense thereof, with separate counsel
chosen by the Vendor, but in such event, the fees and expenses
incurred by the Vendor for such separate counsel will be paid by
the Vendor.
(d) Notwithstanding anything in this CLAUSE 12.2 to the contrary,
with respect to any proceedings initiated by a third party, (1)
the Purchaser will have no obligation with respect to any claim
by the Vender if the Vendor, without the written consent of the
Purchaser, settles or compromises such proceedings or consents
to the entry of any judgment and (2) the Purchaser will not,
without the written consent of the Vendor with respect to any
claim by the Vendor (A) settle or compromise such proceeding or
consent to the entry of any judgment (which does not include as
an unconditional term thereof the delivery to the Vendor of a
written release of the Vendor from all liability in respect of
such proceeding duly signed by the relevant third party, which
release will be reasonably satisfactory in form and substance to
counsel for the Vendor) or (B) settle or compromise any such
proceeding in any manner that, in the reasonable judgment of the
Vendor or its counsel, will adversely affect the Vendor other
than as a result of monetary damages or other monetary payments.
(e) Upon the payment of any settlement or judgment pursuant to this
CLAUSE 12.2 with respect to any claim by the Vendor, the
Purchaser will be subrogated to all rights and remedies of the
Vendor against any third party in respect of such claim by the
Vendor to the extent of the amount so paid by the Purchaser.
(f) The indemnity provided for in this CLAUSE 12.2 will be the
Vendor's exclusive source of recovery against the Purchaser with
respect to the matters covered hereby.
12.3 SETTLEMENT OF DISPUTES
(a) If there occurs any dispute, conflict or claim in respect of the
following matters between the Vendor and the Purchaser, they
shall use their respective reasonable endeavors to settle such
dispute pursuant to this CLAUSE 12.3:
(i) interpretation of this Agreement;
(ii) rights or obligations of the parties under this
Agreement; or
(iii) any other matters which arise in relation to this
Agreement.
(b) The chief executive officer (or equivalent senior
representative) of the Vendor and the Purchaser shall discuss to
settle such dispute within 10 Business Days after the occurrence
thereof. If such dispute is settled thereby, the resolution
shall be described in a statement signed by each party or
representative thereof.
(c) The Vendor and the Purchaser shall each not commence proceedings
in respect of any dispute arising herefrom unless they comply
with the provisions of this clause and except for requesting a
provisional remedy; provided that if either the Vendor
30.
or the Purchaser fails to comply with the provisions of this
clause, the other party may immediately commence proceedings in
respect of such dispute.
(d) The Vendor and the Purchaser shall pay for their own respective
expenses and costs in relation to the proceedings provided in
this clause.
(e) Notwithstanding the provisions of this clause, until a dispute
is settled, the parties shall perform their obligations under
this Agreement without delay except to the extent that the
subject matter of the dispute and matters inevitably dependent
on the dispute may not be performed until such dispute is
settled, further subject to both parties acting reasonably and
faithfully in respect of such dispute (including but not limited
to the subject matter of the dispute and the conditions which
caused the dispute).
12.4 RESTRICTION OF DAMAGES
(a) Notwithstanding the form of any Claim or proceedings (including
but not limited to any indemnity, illegal act, breach of
agreement, Claim or proceeding in relation to the
representations and warranties), the Vendor's obligations
arising from or in connection with a breach of the
representations and warranties listed in this Agreement shall be
limited to the amount by which the cumulative liabilities exceed
JPY 5 millions and in any case, the total amount of the Vendor's
obligations shall not exceed 50% of the Transfer Price.
(b) Notwithstanding the form of any Claim or proceedings (including
but not limited to any indemnity, illegal act, breach of
agreement, Claim or proceeding in relation to the
representations and warranties), the Purchaser's obligations
arising from or in connection with a breach of the
representations and warranties listed in this Agreement shall be
limited to the amount by which the Purchaser's obligations
exceed JPY 5 million, and in any case, the total amount of the
Purchaser's obligations shall not exceed 50% of the Transfer
Price.
13. TERMINATION OF AGREEMENT
13.1 TERMINATION EVENT
This Agreement may be terminated at any time before Closing:
(a) by mutual consent of the Vendor and the Purchaser;
(b) if the conditions in CLAUSE 8.1 or 8.2 are determined not to be
satisfied (and the Vendor or the Purchaser shall not have waived
such conditions pursuant to CLAUSE 8.3) before the Closing Date,
by the Vendor or the Purchaser;
(c) in the case that Closing shall not have occurred by October 31,
2002 and if the terminating party is not in default under this
Agreement or has not attributed to the delay or postponement of
the Closing and does not have any part therein, by the Vendor or
the Purchaser; or
31.
(d) if a Government Agency has made a final and unappealable order,
decision or judgment to prohibit or restrict the completion of
the transaction contemplated in this Agreement for good, by the
Vendor or the Purchaser.
13.2 TERMINATION BY FORCE MAJEURE
(a) Each party hereto shall, if default of a part or all of this
Agreement by such party is due to any event which is beyond the
reasonable control of such party (including but not limited to
an act of God, war, riot, revolution, abandonment of workplace,
measure by a Government Agency, laws and regulations, order of
embargo on export, fire, strike or other labor dispute) ("FORCE
MAJEURE EVENT"), have no responsibility for such default in
relation to the other party; provided that if any delay or
impossibility of performance of obligations under this Agreement
by a party occurs or is threatened to occur as a result of the
occurrence of a Force Majeure Event, that party shall promptly
notify the other party to such effect in writing of the effect
or, estimated effect of such occurrence. In such case, the party
giving the notice shall use its commercially reasonable best
endeavors to keep the effect of the suspended performance of
obligations hereunder to the minimum and restart performance
thereof as soon as possible.
(b) Notwithstanding any other provisions of this Agreement, if there
occurs any Force Majeure Event, the affected party shall notify
the other party in writing and propose consultation pursuant to
CLAUSE 16.10. If such consultation ends in failure, this
Agreement shall terminate in relation to which neither party
shall be responsible.
13.3 PROCEDURE AND EFFECT OF TERMINATION
If this Agreement terminates pursuant to the preceding 2 clauses and the
transactions contemplated herein are waived, a written notice of such
termination and waiver shall promptly be given to the parties. Upon such
notice, neither the Vendor nor the Purchaser shall be required to carry
out any further acts and none of the parties or their related companies,
directors, officers, shareholders, employees, contractors or agents
shall have any further liabilities and this Agreement shall terminate
and the transaction contemplated herein shall be waived; provided that
CLAUSES 1, 7, 9, 11, 12, 15 and 16 shall be binding on the parties for
good (in respect of CLAUSE 11, only for 5 years after the termination of
this Agreement) if necessary for their stated purpose. The provisions of
this clause shall not exempt the Vendor or the Purchaser from their
respective responsibilities in relation to any breach of this Agreement
made prior to the termination hereof.
14. NOTICES
14.1 METHOD OF NOTICE
A notice, consent or other communication ("NOTICE" in this CLAUSE 14)
under this Agreement is only effective if it is in writing, signed and
either given in person at the addressee's address or sent to the
addressee by mail, fax or e-mail. Any party who gives a notice pursuant
to the provisions of this CLAUSE 14.1 shall, after such notice is sent,
32.
confirm whether or not the other party has received the notice using a
method other than the method used to send the original notice. If it is
thereby (or otherwise) discovered that such notice has not reached the
other party by the time on which it would normally do so, the party
giving the notice shall promptly give another notice to the other party.
14.2 ADDRESS FOR NOTICES
The addresses for notices under this Agreement shall be the following or
as otherwise separately notified by a party to the other party in
accordance with the method prescribed herein:
THE VENDOR: SHINKO ELECTRIC CO., LTD.
Address: Toyo MK Building, 2-14 Toyo ▇-▇▇▇▇▇, ▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇
E-mail Address: ▇▇▇▇▇▇▇▇▇-▇@▇▇▇▇▇.▇▇▇▇▇▇-▇▇▇▇.▇▇.▇▇
Fax number: ▇▇-▇-▇▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Chief of Planning Section,
Management Planning Division
THE PURCHASER: ASYST JAPAN INC.
Address: ▇▇▇▇▇▇ ▇▇▇-▇ ▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇-▇▇ ▇▇▇▇-▇▇▇▇▇▇▇▇ ▇- ▇▇▇▇▇, ▇▇▇▇▇▇-▇▇,
▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇▇-▇▇▇▇, ▇▇▇▇▇
E-mail Address: ▇▇▇▇▇▇▇▇@▇▇▇▇▇.▇▇▇
Fax Number: ▇▇-▇▇-▇▇▇-▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Head of Administration
Department
14.3 CHANGE OF ADDRESS
If the address or other contact details of any party as set out in
CLAUSE 14.2 is changed, that party shall give prior written notice to
the other party of such change.
15. AMENDMENT AND ASSIGNMENT
15.1 AMENDMENT
This Agreement can only be amended, supplemented or novated by another
agreement signed by the parties.
15.2 ASSIGNMENT
A party shall not assign, create a security or otherwise dispose of its
rights and obligations or position under this Agreement without the
written consent of the other party.
16. GENERAL PROVISIONS
16.1 GOVERNING LAW
33.
This Agreement and the rights and obligations hereunder are governed by
and construed in accordance with the laws of Japan. Each of the parties
hereto upon execution hereof agrees to submit to the exclusive
jurisdiction of the Tokyo District Court.
16.2 LANGUAGE
This Agreement shall be executed in the Japanese language which shall be
the official text hereof. Any translation of this Agreement into other
languages shall be used only for the purpose of convenience and shall
not affect the interpretation of the provisions of this Agreement.
16.3 LIABILITY FOR EXPENSES
Each party must pay its own expenses incurred in negotiating and
executing this Agreement.
16.4 GIVING EFFECT TO THIS AGREEMENT
Each party must do anything (including sign any document) that the other
party may reasonably require to give full effect to this Agreement.
16.5 WAIVER OF RIGHTS
A right hereunder may only be waived in writing, expressly stating that
the party who has such right thereby waives it, and shall be signed by
such party, and:
(a) no other conduct of a party (including but not limited to any
examination undertaken by the Purchaser or the obtaining of any
information by the Purchaser) operates as a waiver of the right
or otherwise prevents the exercise of the right;
(b) a waiver of a certain right on one or more occasions does not
operate as a waiver of that right if it arises again; and
(c) the exercise of a certain right does not prevent any further
exercise of such right or of any other right.
16.6 OPERATION OF THIS AGREEMENT
(a) Any right that a person may have under this Agreement is in
addition to, and does not replace or limit, any other right that
the person may have.
(b) Any provision of this Agreement which is unenforceable or partly
unenforceable is, where possible, to be severed to the extent
necessary to make this Agreement enforceable, unless this would
materially change the intended effect of this Agreement.
34.
16.7 SURVIVAL OF REPRESENTATIONS AND WARRANTIES AND OTHER PROCEEDINGS
(a) The representations and warranties made by the Vendor and the
Purchaser respectively in this Agreement shall survive all
examinations and shall not cease to exist on Closing; provided
that the term of survival of such representations and warranties
shall be 1 year from the Closing. In respect of any Claims or
proceedings arising from or in connection with the breach of any
representations or warranties under this Agreement, neither
party may make any Claim nor shall have any responsibility for
proceedings unless such Claim or proceeding has been filed prior
to the expiration of the relevant representation or warranty,
irrespective of the form thereof (including but not limited to
indemnities, illegal acts, breach of agreement, representations
and warranties).
(b) Any Claims for indemnity under this Agreement must be made
within 1 year from Closing or in respect of any breach of
obligations after Closing, within 1 year from the breach
thereof.
(c) The parties hereto may not terminate this Agreement after
Closing and if a party incurs any damage due to breach of CLAUSE
6 VENDOR'S REPRESENTATIONS AND WARRANTIES, CLAUSE 7 PURCHASER'S
REPRESENTATIONS AND WARRANTIES, CLAUSE 8 CONDITIONS PRECEDENT or
any other provisions, by the other party, it shall only be
entitled to those remedies listed in and pursuant to CLAUSE 12
INDEMNITY.
16.8 CONSENTS
Where a party waives, agrees or consents under this Agreement, the party
may:
(a) waive, agree or consent, or not agree or consent, in its
absolute discretion; and
(b) waive, agree or consent subject to conditions,
16.9 INCONSISTENCY WITH OTHER DOCUMENTS
If this Agreement is inconsistent with any other document or agreement
between the parties, this Agreement prevails to the extent of the
inconsistency.
16.10 MATTERS NOT CONTEMPLATED IN THIS AGREEMENT
If there occurs any doubt in relation to any matters not stipulated in
this Agreement or in the interpretation hereof, the parties hereto shall
settle the same upon consultation in good faith.
16.11 COUNTERPARTS
If this Agreement is executed in counterparts, each copy shall be
considered as an original.
(hereafter intentionally left blank)
35.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in duplicate
and affixed their names and seals, each retaining one copy.
May 24, 2002
Shinko Electric Co., Ltd.
Hirobumi Saeki, President and Director (Seal)
Asyst Japan Inc.
Josui Nashimoto, Representative Director (Seal)
36.
Schedule 17
[Brand Name License Agreement executed as of 2002.10.01]
(Translation)
BRAND NAME LICENSE AGREEMENT
This Agreement is made and entered into by and among Kobe Steel, Ltd.
(hereinafter referred to as "Kobe"), Shinko Electric Co., Ltd., (hereinafter
referred to as "Shinko") and Asyst Shinko, Inc. (hereinafter referred to as
"Asyst Shinko") in connection with licensing to Asyst Shinko, the right to use
the trademark "SHINKO" held by Kobe and the trademark "System Power ▇▇▇▇" held
by Shinko (hereinafter collectively referred to as the "Brand Names") which are
contained in the List attached hereto, as follows:
(LICENSE)
Article 1 Upon the corporate separation taking effect under the corporate
separation plan approved by special resolution at the shareholders'
meeting of Shinko held on June 27th, 2002, Kobe and Shinko shall, in
respect of the semiconductor wafer and liquid ▇▇▇▇▇▇▇ ▇▇▇▇▇
substrate conveyance system (hereinafter referred to as the
"Products") which are the subject products of the business
transferred from Shinko to Asyst Shinko, grant Asyst Shinko without
charge a non-exclusive right to use the Brand Names pursuant to the
shareholders agreement (hereinafter referred to as the "Shareholders
Agreement") executed by Shinko and Asyst Japan Inc. (hereinafter
referred to as "Asyst Japan") on May 24th, 2002.
(ii) Asyst Shinko shall not use the Brand Names in connection with any
products other than the Products without the prior written consent
of Kobe and Shinko.
(iii) Asyst Japan shall obtain the consent of Kobe and Shinko if it
intends to use the Brand Names as a domain name.
(MANNER OF USE)
Article 2 When Asyst Shinko uses the Brand Names for the Products or in
advertisements, catalogues, transaction documents, advertising
displays, envelopes, business cards or other display media
(hereinafter referred to as the "Display Media") for the Products,
it shall use them in accordance with the manner of use (hereinafter
referred to as the "Manner of Use") described in Annex 1 as a
suitable manner for the use of the Brand Names employed by Shinko
prior to the execution date hereof, except when the Brand Names are
used in the text of Display Media.
(ii) If Asyst Shinko wishes to use the Brand Names in a manner different
from the Manner of Use, it shall obtain the prior written consent of
Kobe and Shinko. In addition, if Kobe or Shinko require Asyst Shinko
to submit the Display Media in which the Brand Names are used in
order to check the manner in which they are used, Asyst Shinko shall
promptly submit to Kobe or Shinko either the Display Media or
pictures or copies thereof.
(iii) Asyst Shinko shall, as a general rule, use its trade name or
abbreviated trade name in place on all Products or Display Media in
which the Brand Names are used.
(iv) Asyst Shinko may not, when using the Brand Names, link the Brand
Names (other than as a generic name of the Products) to any
trademark, emblem, ornament, symbol or letter without the prior
written consent of Kobe and Shinko except in the manner permitted by
the Manner of Use, such as use with the trade name of Asyst Shinko.
(QUALITY CONTROL)
Article 3 Asyst Shinko shall strictly control the quality of the Products on
which the Brand Names are used.
(ii) Shinko may, if necessary, request Asyst Shinko to permit it access
to the facilities, offices and warehouses of Asyst Shinko for
inspection in order to confirm the quality control of the Products.
In this case, Shinko and Asyst Shinko shall consult with each other
in good faith about such inspection; provided, however, that Asyst
Shinko may not, without reasonable reason, refuse such inspection by
Shinko. If Shinko determines that the Products
have any defects, it shall notify the same and the detailed reason
for such determination to Asyst Shinko in writing. Asyst Shinko
shall immediately stop using the Brand Names on the Products which
are so determined to have any defects by Shinko unless Asyst Shinko
demonstrates on reasonable grounds that the determination notified
by Shinko pursuant to the above is not rational and that the
Products determined to have defects have no substantial adverse
effect on the value of the Brand Names.
(iii) If Asyst Shinko is held liable for the Products as the manufacturer
thereof or if any dispute arises in connection therewith, it shall
settle such dispute at its own responsibility and expense.
(iv) If any warning, claim, suit or other legal proceedings are brought
against Kobe or Shinko in connection with the Products on which the
Brand Names are used, Asyst Shinko shall defend them at its own
responsibility and expense and compensate them for any damages
incurred by them.
(MAINTENANCE OF BRAND NAME RIGHT)
Article 4 Kobe and Shinko shall maintain at their own discretion the
trademark rights (in the classification to which the Products
belong) to the Brand Names contained in List 1 attached hereto;
provided, however, that if Kobe or Shinko intends to cease
maintaining the Brand Names, it shall notify the same to Asyst
Shinko in advance and if Asyst Shinko wishes to maintain those Brand
Names, it shall notify the same to Kobe or Shinko. Kobe or Shinko
shall thereafter, after due consultation with Asyst Shinko, maintain
the right to the Brand Names under the name of either Kobe or Shinko
in accordance with the terms to be mutually agreed.
(ii) If Asyst Shinko wishes to make a trademark application in any
country in which such application for the Brand Names has not been
filed, it shall notify the same to Kobe or Shinko. Kobe or Shinko
shall, after due consultation with Asyst Shinko, apply for
registration of the Brand Names under the name of Kobe or Shinko in
accordance with the terms to be mutually agreed. Asyst Shinko shall,
at the request of Kobe or Shinko, cooperate with Kobe or Shinko in
the acquisition and maintenance of any
such trademark rights to the Brand Names.
(iii) Subject to the provisions of the preceding paragraph, if Kobe or
Shinko make an application in the name of Kobe or Shinko with
respect to the registration of the Brand Names in any country in
which such application of the Brand Names has not been filed, the
trademarks for which the application for registration is made in
that country shall be included in the Brand Names covered by the
license granted hereunder from the date of such application by Kobe
or Shinko, and Asyst Shinko shall not be required to make any
additional payment in relation to the licensing of such trademarks
to Kobe and/or Shinko.
(IDENTICAL OR SIMILAR BRAND NAMES)
Article 5 Asyst Shinko may not, for any reason, use any trademark, emblem or
▇▇▇▇ similar to the Brand Names and may not apply for registration
of any trademark, emblem or ▇▇▇▇ identical or similar to the Brand
Names.
(ii) Asyst Shinko may not assign, pledge or license to any third person,
the use of any trademark, emblem or ▇▇▇▇ similar to the Brand Names.
(INFRINGEMENT OF THE BRAND NAME RIGHT)
Article 6 If Asyst Shinko becomes aware of the use or threatened use of the
Brand Names or any trademark, emblem or ▇▇▇▇ similar thereto by any
third person, it shall promptly notify the same to Kobe or Shinko.
Asyst Shinko shall, if Kobe or Shinko take any measures to stop such
infringement of the trademark right by such third person, cooperate
with Kobe or Shinko at their request.
(ii) If Asyst Shinko becomes aware that the use of the Brand Names
infringes or is likely to infringe any trademark of any third
person, or receives an infringement notice from or is sued by any
third person for use of the Brand Names which infringes his/her
trademark right, Asyst Shinko shall immediately notify the same to
Kobe and Shinko, providing copies of any
related materials obtained thereby.
(iii) In respect to the infringement of any trademark due to the use of
the Brand Names, Asyst Shinko shall settle such issue at its own
liability and expense. In such a case, Kobe or Shinko shall
cooperate as necessary as requested by Asyst Shinko and Asyst Shinko
shall bear any cost required for such cooperation.
(iv) Kobe and Shinko hereby represent and warrant that, as of the
execution date hereof, they have not received any infringement
notice or claim to the effect that any of the Brand Names infringe
any trademark right of any third person in the designated
classification of the Products in any country in which such Brand
Names are registered and, to the best of their knowledge, the Brand
Names do not infringe any trademark right of any third person.
Except for the above representations and warranties, Kobe and Shinko
make no warranty as to the infringement by the Brand Names of any
trademark right or other rights of any third person.
(CANCELLATION AND TERMINATION)
Article 7 If Asyst Shinko fails to perform its obligations hereunder, Kobe
and Shinko may demand in writing that Asyst Shinko perform such
obligations within one (1) month and if Asyst Shinko does not
perform those obligations within that period, Kobe and Shinko may
cancel this Agreement at any time thereafter by giving notice to
that effect.
(ii) When the Shareholders Agreement terminates or when the equity
proportion of shares of Asyst Shinko held by Shinko or its related
companies becomes less than one third of the total outstanding
shares issued by Asyst Shinko, Kobe, Shinko and Asyst Shinko shall
consult in good faith as to the handling of this Agreement, and if
agreement is reached within thirty (30) days from the date of
occurrence of the relevant event, this Agreement shall be handled
pursuant to such agreement; provided, however, that if no agreement
is reached with respect to the handling of this Agreement between
Kobe, Shinko and Asyst Shinko within thirty (30) days from the date
of occurrence of the relevant event, this Agreement shall terminate
upon expiration of thirty (30) days from such date. For the purpose
of this paragraph, "related companies of Shinko" means subsidiaries
or affiliates (as defined in the Regulation Concerning Terminology,
Forms and Method of Preparation of Financial Statements (Ministerial
Ordinance of the Ministry of Finance, No.59 of 1963) of Shinko.
(iii) If this Agreement is cancelled or terminated, Asyst Shinko shall
immediately stop using the Brand Names unless otherwise agreed
between Kobe, Shinko and Asyst Shinko, other than to the extent
necessary for performance of any agreements relating to the Products
existing at the time of such cancellation or termination.
(iv) If Asyst Shinko notifies Kobe and Shinko of its intention to
terminate this Agreement in writing upon giving a period of not less
than 180 days notice, this Agreement shall be terminated upon
expiration of such period. In this case, Asyst Shinko shall not be
obliged to pay any amount to Kobe and/or Shinko.
(TERM)
Article 8 Unless this Agreement is canceled or terminated in accordance with
the foregoing provisions, this Agreement shall remain effective for
a period of ten (10) years from the execution date hereof; provided,
however, that this Agreement shall automatically be extended for
additional five (5) year periods (with the same applying
thereafter), unless a notice stating their intention not to renew
this Agreement is given by any of Kobe, Shinko or Asyst Shinko with
reasonable grounds not later than thirty (30) days prior to the
expiration of the term hereof.
(ASSIGNMENT)
Article 9 Neither Kobe, Shinko nor Asyst Shinko may assign to any third
person their respective rights or obligations hereunder without
obtaining the consent of all the parties hereto.
(ii) Asyst Shinko may not assign, pledge or license to any third person,
the use
of the Brand Names.
(CONSULTATION)
Article 10 Any matters not stipulated herein shall be subject to the
Trademark Law, Commercial Code, Civil Code or other laws and
regulations and any doubt arising in connection with the provisions
hereof shall be settled upon separate consultation between Kobe,
Shinko and Asyst Shinko pursuant to the doctrine of good faith.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement in
triplicate as of the date hereof, each party retaining one (1) copy.
October 1, 2002
(Kobe) Kobe Steel, Ltd.
3-18, Wakinohama-cho 1-chome
Chuo-ku, Kobe
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Director, Intellectual Property Division
(Shinko) Shinko Electric Co., Ltd.
▇-▇▇ ▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Representative Director
(Asyst Shinko) Asyst Shinko, Inc.
2-14 Toyo 7-chome, Koto-ku, Tokyo
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Representative Director
[List]
LIST OF REGISTRATION APPLICATIONS FOR THE BRAND NAMES
1 SHINKO
-----------------------------------------------------------------------------------------
Application Registration
No Brand Name Country Classification Number Number
-----------------------------------------------------------------------------------------
1 SHINKO Japan 69 S28-027116 449381
-----------------------------------------------------------------------------------------
2 SHINKO Japan 09 S37-017907 631798
[Japanese
characters]
-----------------------------------------------------------------------------------------
3 SHINKO Japan 07 2001-016613 4598572
-----------------------------------------------------------------------------------------
4 SHINKO Taiwan 07 85036517 857130
-----------------------------------------------------------------------------------------
Brand Name applications and registration in the classification to which the
Products belong.
2 System Power ▇▇▇▇
---------------------------------------------------------------------------------------------------
Application Registration
No Brand Name Country Classification Number Number
---------------------------------------------------------------------------------------------------
1 System Power ▇▇▇▇ Japan 12 S37-010790 00617617
---------------------------------------------------------------------------------------------------
2 System power ▇▇▇▇ Japan 12 S57-014023 01801994
/Shinko Electric
/Shinko Electric Co., Ltd.
---------------------------------------------------------------------------------------------------
3 System power ▇▇▇▇ Japan 12 S57-014026 01801995
/Shinko Electric
/Shinko Electric Co., Ltd.
---------------------------------------------------------------------------------------------------
4 System Power ▇▇▇▇ Japan 12 S57-034598 01814534
---------------------------------------------------------------------------------------------------
5 System Power ▇▇▇▇ Japan 12 S57-034601 01814535
---------------------------------------------------------------------------------------------------
6 System Power ▇▇▇▇ Japan 12 S61-033338 02044064
---------------------------------------------------------------------------------------------------
7 System Power ▇▇▇▇ Japan 12 H04-231071 03296987
---------------------------------------------------------------------------------------------------
8 System Power ▇▇▇▇ Taiwan 90 (69)1218 134109
---------------------------------------------------------------------------------------------------
9 System Power ▇▇▇▇ Taiwan 90 (69)1219 134110
---------------------------------------------------------------------------------------------------
10 System Power ▇▇▇▇ Taiwan 95 (69)10477 143077
---------------------------------------------------------------------------------------------------
11 System Power ▇▇▇▇ U.S.A. 7,9 668262 1511521
---------------------------------------------------------------------------------------------------
12 System Power ▇▇▇▇ U.S.A. 12 668259 1508018
---------------------------------------------------------------------------------------------------
13 System Power ▇▇▇▇ Canada 585889 359329
---------------------------------------------------------------------------------------------------
---------------------------------------------------------------------------------------------------
14 System Power ▇▇▇▇ Germany 7,9,11,12 S44865/9WZ 1120434
---------------------------------------------------------------------------------------------------
15 System Power ▇▇▇▇ U.K. 7 1310343A 1310343
---------------------------------------------------------------------------------------------------
16 System Power ▇▇▇▇ U.K. 12 1310345A 1310345
---------------------------------------------------------------------------------------------------
17 System Power ▇▇▇▇ France 7,9,12 858395 1410978
---------------------------------------------------------------------------------------------------
18 System Power ▇▇▇▇ Italy 7,9,12 34744C/87 506093
---------------------------------------------------------------------------------------------------
19 System Power ▇▇▇▇ ▇▇▇▇▇ Korea 7,12 87-10922 161625
---------------------------------------------------------------------------------------------------
20 System Power ▇▇▇▇ ▇▇▇▇▇ Korea 7,(11),12 87-10923 164229
---------------------------------------------------------------------------------------------------
21 System Power ▇▇▇▇ Taiwan 84 (76)32487 401784
---------------------------------------------------------------------------------------------------
22 System Power ▇▇▇▇ China 7,12 94060585 0852788
---------------------------------------------------------------------------------------------------
[Agreement on Use and Development Support of Information Systems
executed as of 2002.10.01]
(Translation)
AGREEMENT ON USE AND DEVELOPMENT SUPPORT OF INFORMATION SYSTEMS
This Agreement on Use and Development Support of Information Systems
(hereinafter referred to as the "Agreement") is made and entered into by and
between Shinko Electric Co., Ltd. (hereinafter referred to as "Shinko Electric")
and Asyst Shinko, Inc. (hereinafter referred to as "Asyst Shinko") in connection
with the use, development and structuring of information systems by Asyst Shinko
(see Attachment 1) and the expenses thereof, as follows:
Article 1 (Definition)
The following terms used in the Agreement shall have the meanings set
forth in this Article:
1. "Sales and Production System" means a system which processes businesses
ranging from order entry, production and materials management to cost
management. "Permanent Sales and Production System" means a new Sales and
Production System structured with a new package to be operating from the
Permanent System Operation Date, and "Temporary Sales and Production
System" means a Sales and Production System structured by remodelling the
existing Sales and Production System of Shinko Electric, which operates
temporarily from October 1, 2002 until the Permanent Sales and Production
System goes into operation;
2. "Personnel and Salary System" means a system which processes businesses of
management of personnel information, employment, payroll accounting and
welfare and social insurance. "Permanent Personnel and Salary System"
means a new Personnel and Salary System structured with a new package to
be operating from the Permanent System Operation Date, and "Temporary
Personnel and Salary System" means a Personnel and Salary System
structured by remodelling the existing Personnel and Salary System of
Shinko Electric, which operates temporarily from October 1, 2002 until the
Permanent Personnel and Salary System goes into operation;
3. "Accounting System" means a system which processes accounting services
such as general accounting, management of funds and fixed assets, which
are not processed by the Sales and Production System, Personnel and Salary
System or the Engineering Systems. "Permanent Accounting System" means a
new Accounting System structured with a new package to be operating from
the Permanent System Operation Date and "Temporary Accounting System"
means an Accounting System temporarily operating from October 1, 2002
until the Permanent Accounting System operates, consisting of (i) a system
for accounting and fixed assets which is customized by Shinko Electric for
Asyst Shinko with a new package software purchased in the market by Shinko
Electric (hereinafter referred to as the "Accounting Services System") and
(ii) an Accounting System structured by remodelling the existing system of
Shinko Electric for management of receivables and payables and fund
management (hereinafter referred to as the "Receivables and Payables
Management System");
4. "Engineering Systems" means systems which processes businesses relating to
technology, which are composed of the CAD System for Mechanical Design
(including electronic drawing cabinet; the same shall apply hereafter),
the automatic drawing support system and the print board production
support system (Speed Net). "Permanent CAD System for Mechanical Design"
included in the Engineering Systems means a new CAD System for Mechanical
Design to be operating from the Permanent System Operation Date and
"Temporary CAD System for Mechanical Design" means a CAD System for
Mechanical Design structured by remodelling the existing CAD System for
Mechanical Design, which operates temporarily from October 1, 2002 until
the Permanent CAD System for Mechanical Design goes into operation;
5. "Each System" means the Sales and Production System (including both the
Temporary Sales and Production System and the Permanent Sales and
Production System), the Personnel and Salary System (including both the
Temporary Personnel and Salary System and the Permanent Personnel and
Salary System), the Accounting System (including both the Temporary
Accounting System and the Permanent Accounting System) and the Engineering
Systems (including all the Temporary CAD System for Mechanical Design, the
Permanent CAD System for Mechanical Design, the automatic drawing support
system and the print board
production support system (Speed Net));
6. "Development Support" means a business to support the development of the
Permanent Sales and Production System, the Permanent Personnel and Salary
System, the Permanent Accounting System and the Permanent CAD System for
Mechanical Design, which is entrusted by Asyst Shinko to Shinko Electric
pursuant to Article 2, paragraph 3 hereof;
7. "Management and Operation" means to carry out scheduling, operation and
data storage of systems, etc. in order to put the systems into operation;
8. "Use" means the use of the systems by each officer and employee (including
part-time workers, inducted outside suppliers and loaned workers who are
treated similarly to the employees) of Asyst Shinko as the user thereof in
order to carry out his/her duties;
9. "Each Permanent System" means the Permanent Sales and Production System,
the Permanent Personnel and Salary System and the Permanent CAD System for
Mechanical Design;
10. "Each Temporary System" means the Temporary Sales and Production System,
the Temporary Personnel and Salary System and the Temporary CAD System for
Mechanical Design; and
11. "Permanent System Operation Date" means October 1, 2003 or any other day
agreed by both parties hereto on which Each Permanent System goes into
operation.
Article 2 (Rules for Structuring and Operation of Each System)
The substance of structuring and operation and Development Support of Each
System are as follows. For the avoidance of doubt, Schedule 2 merely sets forth
an image of the development schedule pursuant to this Article and Schedule 2
itself shall not have any legal enforceability:
1. The Permanent Sales and Production System, the Permanent Personnel and
Salary
System, the Permanent Accounting System and the Permanent CAD System for
Mechanical Design shall be newly developed by Asyst Shinko at its expenses
and on its responsibility not later than the Permanent System Operation
Date, and shall be operated by Asyst Shinko at its expenses and on its
responsibility from the Permanent System Operation Date;
2. Shinko Electric shall deliver to Asyst Shinko on the execution date hereof
the business flow sheet for Each Permanent System drawn up for Asyst
Shinko and any other flow sheet agreed between the parties hereto
(hereinafter referred to as the "Business Flows, etc.");
3. Shinko Electric shall, upon development by Asyst Shinko of Each Permanent
System, elect one (1) person from among employees of Shinko Electric as
the development supporter who supports development of Each Permanent
System of Asyst Shinko and cause such person to provide certain support to
the possible extent such as giving instructions, providing information
etc. and operation of computer terminal which are necessary for the
relevant development, and Asyst Shinko shall, in consideration of such
support, pay to Shinko Electric the development support fees provided for
in Article 7, paragraph 1, item (1);
4. Each Temporary System (excluding the Accounting Services System; the same
shall apply hereafter in this paragraph) shall be developed by Shinko
Electric at its expenses and on its responsibility not later than
September 30, 2002, by remodeling the existing system of Shinko Electric.
Shinko Electric shall, during the period from the execution date hereof to
the date on which Each Permanent System goes into operation, license Asyst
Shinko to use Each Temporary System (which means to simply use such system
and does not include copying or alteration thereof) and Asyst Shinko
shall, in consideration of such license, pay to Shinko Electric the user
fees provided for in Article 7, paragraph 1, item (2)(i). Shinko Electric
shall, at its expenses and on its responsibility, manage and operate Each
Temporary System;
5. Shinko Electric shall license Asyst Shinko to use the automatic drawing
support system and the print board production support system (Speed Net)
(which means to simply use such system and does not include copying or
alteration thereof) of the Engineering Systems for one (1) year from the
execution date hereof (provided
that this shall not prevent the application of Article 10, paragraph 2
hereof), and Asyst Shinko shall, in consideration of such license, pay to
Shinko Electric the user fees provided for in Article 7, paragraph 1, item
(2)(ii). Shinko Electric shall, at its expenses and on its responsibility,
manage and operate the automatic drawing support system and the print
board production support system (Speed Net); and
6. Shinko Electric shall transfer the Accounting Services System to Asyst
Shinko on the execution date hereof. Upon such transfer of the Accounting
Services System, Shinko Electric shall deliver to Asyst Shinko the
transubstantiated media of the Accounting Services System, manuals and
other documents necessary to operate such system. Asyst Shinko shall, in
consideration of such transfer, pay the transfer price provided for in
Article 7, paragraph 1, item (3) complying with the due date and manner of
payment set forth therein.
Article 3 (System Users)
The users of the Temporary Sales and Production System, the Temporary
Personnel and Salary System, the Receivables and Payables Management System, the
Temporary CAD System for Mechanical Design, the automatic drawing support system
and the print board production support system (Speed Net) shall be officers and
employees of Asyst Shinko (including part-time workers, inducted outside
suppliers and loaned workers who are treated similarly to the employees) and
Asyst Shinko may not permit any other third person to use each of the above
systems.
Article 4 (Contact Person Handling Troubles and Other Request)
The contact person at Shinko Electric at the time of occurrence of
troubles and for any request made by Asyst Shinko for handling any other matters
in connection with the Temporary Sales and Production System, the Temporary
Personnel and Salary System, the Receivables and Payables Management System, the
Temporary CAD System for Mechanical Design, is as follows:
▇▇▇▇▇▇▇▇▇ ▇▇▇▇, Manager
Information Systems Office, Management Planning Division (at Ise Plant)
Phone:▇▇▇▇-▇▇-▇▇▇▇
e-mail: ▇▇▇▇-▇@▇▇▇.▇▇▇▇▇▇-▇▇▇▇.▇▇.▇▇
Article 5 (System Operation Time)
The time of operation of the Temporary Sales and Production System, the
Temporary Personnel and Salary System, the Receivables and Payables Management
System, the Temporary CAD System for Mechanical Design, the automatic drawing
support system and the print board production support system (Speed Net) shall
be, in principle, subject to the schedules determined by Shinko Electric in
advance; provided that Shinko Electric and Asyst Shinko shall consult with each
other in respect of handling of any operation requested in advance by Asyst
Shinko.
Article 6 (System Alteration)
Asyst Shinko may not request Shinko Electric to make any alteration to the
Temporary Sales and Production System, the Temporary Personnel and Salary
System, the Receivables and Payables Management System, the Temporary CAD System
for Mechanical Design, the automatic drawing support system and the print board
production support system (Speed Net); provided that if it becomes necessity to
alter above systems for any reason on the part of Shinko Electric, the
alteration may be made after consultation with Asyst Shinko.
Article 7 (System User Fees, Development Support Fee and System Transfer Price)
1. Asyst Shinko shall pay to Shinko Electric each of the following fees and
price in consideration of the Development Support, use of systems and
transfer of system provided for in paragraphs 3 through 6 of Article 2:
(1) Development support fee for Each Permanent System
JPY 660,000 per month (for the period from October 1, 2002 to
September 30, 2003. Such development support fee shall include any
expenses which Asyst Shinko is obliged to pay under Article 2,
paragraph 3, for the dispatch of a development supporter);
(2) System user fee
(i) Temporary Sales and Production System, Temporary Personnel and
Salary System, Receivables and Payables Management System and
Temporary CAD System for Mechanical Design
System user fee: JPY 5130,000 per month (for the period from
October 1, 2002 to September 30, 2003);
(ii) Automatic drawing support system and print board production
support system (Speed Net)
System user fee: JPY 710,000 per month (for the period from
October 1, 2002 to September 30, 2003); and
(3) Transfer price of the Accounting Services System
JPY 360,000 (which includes purchase price of the new package
software and annual maintenance fees, subject to certain
excise tax.).
2. The fees set forth in items (1) and (2) above shall be due on the end of
each month, and Asyst Shinko shall pay the equivalent amount to Shinko
Electric by way of bank transfer to the account designated by Shinko
Electric by the date reasonably prior to such due date. The due date of
the transfer price set forth in item (3) above shall be October 30, 2002,
and Asyst Shinko shall pay the equivalent amount to Shinko Electric by way
of bank transfer to the account designated by Shinko Electric by the date
reasonably prior to such due date.
Article 8 (Compensation for Damages and Indemnification)
1. If either of Shinko Electric or Asyst Shinko breaches any of the
provisions hereof due to willful misconduct or gloss negligence of such
party, the other party may claim for damages arising out of such breach.
2. Notwithstanding the preceding paragraph, Shinko Electric shall not, unless
it is attributable to the willful misconduct or gross negligence of Shinko
Electric, be responsible to Asyst Shinko for the substance of the Business
Flows, etc. delivered
in accordance with Article 2, paragraph 2 in connection with Each
Permanent System and for defect in any permanent system developed by Asyst
Shinko.
3. Notwithstanding paragraph 1 above, Shinko Electric shall not, unless it is
attributable to the willful misconduct or gross negligence of Shinko
Electric, be liable to Asyst Shinko for damages incurred by Asyst Shinko
due to non-operation, improper operation or any other defect in Each
Temporary System for any reason.
Article 9 (Security Measures)
Shinko Electric and Asyst Shinko shall separately consult with each other
on the specific security measures for Each System, sharing of costs, etc.
Article 10 (Term and Termination of Agreement)
1. With respect to the Development Support of Each Temporary System and Each
Permanent System set forth in Article 2, paragraph 3, the term of this
Agreement shall be from the date of this Agreement until the Permanent
System Operation Date, except for the cases where it is otherwise
specifically provided for in paragraph 3 or 5 of this Article or any other
provisions hereof, or where it is otherwise agreed between both parties.
2. In the case of the automatic drawing support system and the print board
production support system (Speed Net), the term of this Agreement shall
be, except for the cases where it is otherwise specifically provided for
in the proviso of this paragraph, paragraph 4 or 5 of this Article or any
other provisions hereof, or where it is otherwise agreed between both
parties, one (1) year from the date of this Agreement, and it shall be
renewed for the additional period of one (1) year commencing from the date
immediately following the expiration, with the same conditions as those
provided for in this Agreement, and the same shall apply to any terms
thereafter (subject to the provision of paragraph 4 of this Article);
provided, however, that each party may, unless otherwise agreed, terminate
this Agreement on or after October 1, 2003, by giving six months prior
notice to the other party.
3. If by the operation date of Each Permanent System it becomes certain that
the number of voting rights of Asyst Shinko held by Shinko Electric or its
affiliated
companies becomes one third or less of the total voting rights of all the
shareholders of Asyst Shinko, Shinko Electric and Asyst Shinko shall have
consultation in good faith with respect to handling of this Agreement
relating to the Development Support of Each Temporary System and Each
Permanent System set forth in Article 2, paragraph 3, and where the
parties have reached an agreement within thirty (30) days from the actual
occurrence of such event, this Agreement shall be handled in accordance
with the detail of such agreement; provided, however, where no agreement
was made between Shinko Electric and Asyst Shinko concerning the handling
of this Agreement within such thirty (30) days period, this Agreement
shall inevitably be terminated with a lapse of six months after occurrence
of such event, or prior thereto when Asyst Shinko has ceased to use Each
Temporary System and declared that it needs no Development Assistance
referred to in Article 2, paragraph 3.
4. If after the execution of this Agreement it becomes certain that the
number of voting rights of Asyst Shinko held by Shinko Electric or its
affiliated companies becomes one third or less of the total voting rights
of all the shareholders of Asyst Shinko, the preceding paragraph shall
apply mutatis mutandis to the handling of this Agreement with respect to
the automatic drawing support system and the print board production
support system (Speed Net).
5. If either Asyst Shinko or Shinko Electric failed to perform the
obligations hereunder and even after giving written demand for the
performance of obligations within a reasonable period such failing party
has not performed same within the said period, then the other party may
terminate this Agreement at any time by giving a notice.
6. Notwithstanding paragraph 5 above, provisions of Articles 8, 12, 13 and 15
shall survive the termination of this Agreement.
Article 11 (Confidentiality)
Shinko Electric and Asyst Shinko shall keep confidential all technical and
business information provided to them in the course of execution and performance
of this Agreement in accordance with the provisions of the "Comprehensive
Confidentiality Agreement" dated October 1, 2002 between Shinko Electric and
Asyst Shinko.
Article 12 (Consultation)
Matters not stipulated herein or any doubt arising with respect to the
interpretation hereof shall be determined at each time upon consultation between
the parties hereto.
Article 13 (Jurisdiction and Governing Law)
This Agreement shall be governed by and construed in accordance with the
laws of Japan. Shinko Electric and Asyst Shinko hereby agree to submit to the
exclusive jurisdiction of the Tokyo District Court with respect to any dispute
arising out of or in connection with this Agreement.
Article 14 (Assignment of Contractual Position)
Each of Shinko Electric and Asyst Shinko shall not assign to any third
person or otherwise dispose of all or any part of its rights and obligations or
its contractual position hereunder without obtaining a prior written consent of
the other party.
Article 15 (Entire Agreement)
This Agreement constitutes the entire and final agreement between the
parties, and replaces and supersedes any and all prior consents or agreements
between the parties relating to the matters stipulated herein. This Agreement
may be amended only by a written agreement between the parties hereto.
IN WITNESS WHEREOF, Shinko Electric and Asyst Shinko have executed this
Agreement in duplicate by placing their signatures and seals thereon, each
retaining one original copy.
October 1, 2002
Shinko Electric Co., Ltd.
Toyo MK Building, Toyo ▇-▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
by: Saeki Hirobumi [seal]
President
Asyst Shinko, Inc.
Toyo MK Building, Toyo ▇-▇-▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
by: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ [seal]
Representative Director
[Intellectual Property Rights Mutual License Agreement
executed as of 2002.10.01]
(Translation)
INTELLECTUAL PROPERTY RIGHTS MUTUAL LICENSE AGREEMENT
This Agreement is made and entered into by and between SHINKO ELECTRIC CO., LTD.
("SHINKO") and ASYST SHINKO INC. ("ASYST SHINKO") with respect to the treatment
of the intellectual property rights held by Shinko in connection with the
hospital conveyance system business and semiconductor liquid crystal hardware
business (the semiconductor liquid crystal hardware business consisting of the
EFEM business and robot business) ("SDK BUSINESS ") and of the intellectual
property rights held by Asyst Shinko in connection with the semiconductor wafer
and liquid ▇▇▇▇▇▇▇ ▇▇▇▇▇ platform conveyance system business ("ASI BUSINESS"),
as follows:
Article 1 Definitions
The terms used herein shall have the respective meanings indicated below:
1. "LICENSOR" means a party which grants an ordinary license of Intellectual
Property Rights in accordance with Article 2.
2. "LICENSEE" means a party which acquires an ordinary license of Intellectual
Property Rights in accordance with Article 2.
3. "INTELLECTUAL PROPERTY RIGHTS" means patents, patents under application,
utility models, designs, trademarks, rights concerning software, Know How,
and all other intellectual property rights and other technical information
relating to such intellectual property rights, etc.
4. "KNOW HOW" means any information and knowledge, whether tangible or
intangible, required to be kept confidential as a business secret, which
are held and controlled by the Licensor as of the date hereof.
5. "IMPROVED TECHNIQUE" means any improvements or modifications relating to
the Intellectual Property Rights defined above and any other techniques
which have a technical operative effect identical or similar to such
Intellectual Property Rights.
6. "RELATED COMPANIES" means "Related Companies" and "Subsidiaries" as defined
in the
-1-
Regulations Concerning Terminology, Forms and Method of Preparation of
Financial Statements (Ministerial Ordinance of Ministry of Finance, No. 59
of 1963) (according to which, Kobe Steel, Ltd. shall not be treated as a
Related Company of Shinko, and Asyst Japan Inc. and its parent company,
Asyst Technologies, Inc. shall not be treated as Related Companies of Asyst
Shinko herein).
Article 2 Mutual License without Royalty
With respect to the treatment of the Intellectual Property Rights held by Shinko
and Asyst Shinko as of the date hereof, it is agreed that:
1. Shinko shall grant, without royalty, to Asyst Shinko, for use in relation
to ASI Business only, an ordinary license to the Intellectual Property
Rights listed in Annex A (collectively the ""A" INTELLECTUAL PROPERTY
RIGHTS") which have not been transferred or assigned to Asyst Shinko and
have been held by Shinko since the date before the effective date of the
split off (the "SPLIT OFF") under the split off program approved by a
special resolution passed at the shareholders meeting of Shinko held on
June 27, 2002; provided, however, that only a restrictive right to use as
described in Annex 1 shall be granted with respect to the rights concerning
software of the "A" Intellectual Property Rights.
2. Asyst Shinko shall grant, without royalty, to Shinko, for use in relation
to SDK Business only, an ordinary license to the Intellectual Property
Rights listed in Annex B (collectively the ""B" INTELLECTUAL PROPERTY
RIGHTS") which have been transferred and assigned to Asyst Shinko by way of
the Split Off; provided, however, that only a restrictive right to use as
described in Annex 1 shall be granted with respect to the rights concerning
software of the "B" Intellectual Property Rights.
Article 3 Grant of Sublicense to Third Parties
1. The Licensee shall not, without the written consent of the Licensor, with
respect to the "A" and "B" Industrial Property Rights, sublicense, transfer
or assign the ordinary license granted to it or create a security interest
thereon to or in favor of any third party other than a company, 50% or more
of the shares of which are held by Shinko or Asyst Shinko; provided,
however, that the Licensee shall be entitled to grant a sublicense with
respect the "A" and "B" Industrial Property Rights to a third party, but
only if the Licensee has consigned its production work to such third party
in connection with the SDK Business or ASI Business conducted by it and
such third party assumes obligations equal to that of the Licensee
hereunder.
2. The Licensor shall not, grant, transfer or assign any exclusive license
with respect to the
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"A" or "B" Intellectual Property Rights owned by the Licensor or create any
security interest thereon to or in favor of a third party, unless the
Licensor gives notice of the same to the Licensee and enters into an
agreement with such third party to the effect that the ordinary license
without royalty held by the Licensee remains in effect.
3. If either party hereto grants any license to a third party, such party
shall make the relevant third party approve and comply with each provision
herein.
Article 4 Registration of License
The Licensee shall, at any time upon making a request to the Licensor, be
entitled to register the "A" and "B" Intellectual Property Rights with respect
to which an ordinary license has been granted, at its own cost, and the other
party shall corporate therewith.
Article 5 Technical Information
The Licensor shall disclose to the Licensee all Know How and technical
documents which relate to any of the following:
1. all drawings, designs, specifications, material lists, other technical
information and details and related information concerning such technical
information necessary for the implementation of the license of the
Intellectual Property Rights with respect to which an ordinary license has
been granted to the Licensee; and
2. copies of all documents relating to applications for industrial properties
such as patent rights, utility model rights, design rights and trademark
rights which are included under the ordinary license, registrations of
copyright, circuit layout rights or other rights or any other procedures
similar thereto made by or on behalf of the Licensor, a list of the
countries in which such applications, registrations, etc. have been made
and a detailed description of the status of all such applications,
registrations, etc.
Article 6 Improved Techniques
1. If either party hereto develops or acquires any Improved Technique (but
only where the party develops or acquires all of the rights concerning the
Improved Technique; with the same to apply hereafter) in relation to the
"A" or "B" Intellectual Property Rights owned by them respectively or in
relation to the ordinary license granted to them by the other party in
accordance with Article 2 hereof, such party shall disclose to the other
party, in relation to any and all such Improved Techniques, all drawings,
designs, specifications, material lists and other technical information,
and all details and related information
-3-
concerning such technical information (including the date of completion of
the development or acquisition of such Improved Technique or information on
the developer) after the completion of the development or acquisition of
such Improved Technique without delay. For the purpose of this Article 6,
the party which acquires the Improved Technique shall be referred to as the
Improved Technique Licensor and the party which receives disclosure of
information concerning the Improved Technique shall be referred to as the
Improved Technique Licensee.
2. Any and all Improved Techniques acquired by a party in relation to the "A"
and "B" Intellectual Property Rights during the term hereof shall be
included in the Intellectual Property Rights subject to the license granted
hereunder from the day on which the Improved Technique Licensor makes such
disclosure regarding the relevant Improved Technique to the Improved
Technique Licensee pursuant to the preceding paragraph, and the Improved
Technique Licensee shall not be obliged to make any additional payments
concerning the license of the Improved Technique to the Improved Technique
Licensor or any other person.
3. If the Improved Technique is developed or acquired by the Improved
Technique Licensor based on developments or commissions, etc., made to its
Related Companies or if the Improved Technique relates to joint
developments or acquisitions between the Improved Technique Licensor and
its Related Companies, the provisions of the preceding two (2) paragraphs
shall apply only when the approval of such Related Companies is obtained,
and the Improved Technique Licensor shall exert its best efforts to obtain
such approval from those Related Companies.
4. If the Improved Technique is developed or acquired by the Improved
Technique Licensor based on developments or commissions, etc., made to any
third persons other than its Related Companies or if the Improved Technique
relates to joint developments or acquisitions between the Improved
Technique Licensor and any third person other than its Related Companies,
the provisions of paragraphs 1 and 2 above shall apply only when the
approval of such third person is obtained, and the Improved Technique
Licensor shall exert commercially reasonable efforts to obtain such
approval from such third person.
Article 7 Technical Guidance
1. If the Licensee makes a written request from time to time during the term
of this Agreement and the Licensor considers such request appropriate, the
Licensor shall dispatch a reasonable number of engineers (the "ENGINEERS")
to the Licensee for the purpose of technical advice and guidance necessary
for the implementation by the Licensee of the license with respect to the
"A" and "B" Intellectual Property Rights or for other purposes mutually
agreed between the parties hereof. The maximum term of the
-4-
dispatching of such Engineers shall not exceed 30 days per annum for each
Engineer; provided, however, that such maximum term may be extended for not
more than 30 days subject to agreement between the parties, and the same
shall apply thereafter.
2. The Licensee shall pay to the Licensor a dispatching fee in the amount per
one Engineer agreed between the parties, and shall bear all the lodging
expenses, traveling expenses and other expenses incidental thereto
(including any amounts equivalent to consumption tax and local consumption
tax necessary for the relevant expenses) which the Licensor reasonably
requires in connection with the dispatching of its personnel.
3. The Licensee shall have the entire responsibility for undertaking all
activities necessary to protect the life and property of the Engineers.
Upon the reasonable request of the Engineers, the Licensee shall arrange at
its own expense appropriate doctor and/or hospital facilities.
Article 8 Non Registration of Technical Information and Know How
The Licensee shall not apply for any industrial property rights such as patents,
utility models, designs or trademark on the basis of the technical information
or the Know How provided by the Licensor nor shall it register any copyrights,
circuit layout rights or other rights without the prior written consent of the
Licensor.
Article 9 Records and Reports
The Licensee shall report to the Licensor the status of the implementation and
availability of the "A" and "B" Intellectual Property Rights upon the request by
the Licensor without delay.
Article 10 Infringement Measures
If either party discovers that any third party is infringing or is likely to
infringe any of the intellectual property rights under this Agreement, such
party shall immediately notify the same to the other party, giving a description
of such infringement (including of any likely infringement) by the third party
and any related information obtained thereby, and the Licensor shall take
measures to prevent such infringement at its own expense and the Licensee shall
corporate therewith.
Article 11 No Responsibility for Infringement of Third Party's Right
1. If the Licensee becomes aware that the use of the "A" and "B" Intellectual
Property
-5-
Rights infringes or is likely to infringe the Intellectual Property Rights
of any third party or receives a warning from or is sued by a third party
to the effect that the use of the "A" and "B" Intellectual Property Rights
by the Licensee infringes the Intellectual Property Rights of such third
party, it shall notify the Licensor of the same, sending any related
documents obtained thereby.
2. The Licensee shall be liable for and must bear the cost of settling the
infringement of any Intellectual Property Rights resulting from the use of
the "A" and "B" Intellectual Property Rights, (provided that each of the
Licensor and the Licensee shall separately consult with each other in
respect to the proportion of their respective burden of the costs incurred
pursuant to the above and the conclusive proportion thereof shall be
subject to the agreement reached by the parties at such separate
consultation). In this case, each Licensor of the "A" and "B" Intellectual
Property Rights shall provide all necessary cooperation at the reasonable
request of each Licensee; provided, however, that, if such infringement
results only from the willful misconduct or gross negligence of the
Licensor, the Licensee shall not be required to meet the obligations
provided for in this paragraph and each Licensor shall settle the matter at
its own liability and expense.
3. Shinko represents and warrants as of the date hereof that it has not
received any warnings or claims, other than the facts as described in Annex
2, to the effect that the "A" and "B" Intellectual Property Rights infringe
any patent, etc. of any third party and that, to the best of its knowledge,
it is not in infringement of any patent rights of any third party. Except
for the above-mentioned representation and warranty, Shinko makes no
representations or warranties with respect to the non-existence of
infringement by the "A" and "B" Intellectual Property Rights of any
Intellectual Property Rights of any third party or the validity of the "A"
and "B" Intellectual Property Rights.
4. In no event shall the Licensor assume any liability with respect to any
damages caused by or resulting from those rights provided to the Licensee
hereunder or the use thereof.
5. The provision of the Technological Information or the grant of the licenses
hereunder shall not be deemed to be a guarantee of the non-existence of
infringement of the Intellectual Property Rights held by any third party,
or of the validity of the "A" and "B" Intellectual Property Rights.
Article 12 Confidentiality
Shinko and Asyst Shinko shall keep confidential the Know How making up the "A"
and "B" Intellectual Property Rights and any the technical and business
information provided on a confidential basis in accordance with the
Comprehensive Confidentiality Agreement dated October 1, 2002 between Shinko and
Asyst Shinko.
-6-
Article 13 Term
1. Except as provided for in Article 14, this Agreement shall be effective
during the period from the date hereof to the date on which both of the "A"
and "B" Intellectual Property Rights are extinguished, provided however
that the provisions of Article 11, 12 and 14, 15, and 17 shall continue in
force thereafter.
2. Notwithstanding the provisions of the preceding paragraph, if it becomes
certain that the proportion of the number of voting rights of shares of
Asyst Shinko held by Shinko or its Related Companies will become less than
one third of the number of voting rights of all the shareholders of Asyst
Shinko, the parties hereto shall consult with each other in good faith as
to the handling of the Improved Technique, and if agreement is reached
within thirty (30) days from the date of occurrence of the relevant event,
the Improved Technique shall be handled pursuant to such agreement;
provided, however, that if no such agreement concerning the handling of the
Improved Technique is reached within thirty (30) days from the occurrence
of such event, the provisions of Article 6 hereof shall lose effect as from
the expiration of thirty (30) days from the occurrence of the relevant
event.
Article 14 Unilateral Cancellation and Damage Compensation
1. If any of the events set forth in items (i) through (iii) and (iv) below
occurs with respect to a party and if, after the other party demands to the
first such party, the cure of such event within a period of no less than 10
days and such event is not cured within that period, or if the event set
forth in item (iv) occurs, then Shinko and Asyst Shinko shall be entitled
to cancel that part of this Agreement (but only that part) which consists
of the grant of the ordinary license to the other party (the "UNILATERAL
AGREEMENT"):
(i) if the party makes false reports or commits any unlawful act with
respect to the implementation of this Agreement;
(ii) if the party becomes involved in any dispute, directly or indirectly,
with respect to the validity of the "A" or "B" Intellectual Property
Rights;
(iii) If the party fails to cooperate in measures to prevent infringement
set forth in Article 10 without reasonable grounds;
(iv) If it becomes clear that the representations and warranties provided
for in Article 11 hereof are not true; or
(v) if the party breaches the confidentiality obligation set forth in
Article 12.
-7-
In this case, the Unilateral Agreement (only) shall terminate as of the
date on which the cancellation notice reaches the other party, at which
time such other party shall also cease to have the ordinary license granted
hereunder.
2. In addition to the preceding provisions, if a party fails to perform any of
its obligations hereunder and if, after the other party demands the
performance of such obligation within a period of no less than 10 days, the
first mentioned party does not perform such obligation within such period,
then Shinko or Asyst Shinko shall be entitled to cancel the Unilateral
Agreement by written notice. In this case, the Unilateral Agreement shall
terminate as of the date on which such notice reaches the other party.
3. In the event of the preceding two (2) paragraphs, Shinko or Asyst Shinko
shall be entitled to claim damages against the other party in case of the
willful misconduct or negligence of the other party.
4. The provisions of the proviso of Article 13, paragraph 1 shall be applied
even after this Agreement is terminated or cancelled under this Article.
Article 15 Obligation to Return and Restriction on Use of Know How after
Termination
If the Licensee loses the ordinary license granted hereunder upon the expiration
of the term set forth in Article 13 or upon the unilateral cancellation set
forth in Article 14, then, for all purposes, the Licensee shall immediately
suspend the use of the Know How, business secrets and technical information
provided by the Licensor, and shall return or destroy (if the Licensor so
consents) the documents or data containing such Know How within fourteen (14)
days of the loss of such ordinary license.
Article 16 Consultation
Matters not stipulated herein or any doubts arising with respect to the
interpretation of this Agreement shall be determined from time to time upon
consultation between the parties.
Article 17 Jurisdiction and Governing Law
This Agreement shall be governed by and construed in accordance with the laws of
Japan. Shinko and Asyst Shinko agree to submit to the exclusive jurisdiction of
the Tokyo District Court over any dispute arising out of or in connection with
this Agreement.
-8-
Article 18 Assignment of Contractual Position
Neither Shinko nor Asyst Shinko shall transfer, assign or otherwise dispose of
all or any part of their respective rights or obligations or contractual
position hereunder to any third party without the prior written consent of the
other party.
Article 19 Entire Agreement
This Agreement shall constitute the entire and conclusive agreement between the
parties and replaces and supercedes any prior agreement and understanding
between the parties relating to the provisions hereof. This Agreement may be
modified only by written agreement by the parties hereto.
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IN WITNESS WHEREOF, this deed is executed in two originals to which Shinko and
Asyst affix their name and seal, each retaining one original.
October ▇, ▇▇▇▇
▇-▇▇, ▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇
SHINKO ELECTRIC, CO., LTD.
President and Representative Director: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇-▇▇, ▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇, ▇▇▇▇▇
ASYST SHINKO, INC.
President and Representative Director: ▇▇▇▇▇▇▇ ▇▇▇▇
-10-
Annex A
[A list of the Intellectual Property Rights held by Shinko and with respect to
which a license will be granted to Asyst Shinko will be inserted here.]
-11-
Annex B
[A list of the Intellectual Property Rights which will be transferred to Asyst
Shinko and with respect to which a license will be granted to Shinko will be
inserted here.]
-12-
Annex 1
Special Provisions concerning Rights to Use Software
1. Definitions
In this Annex 1, the following terms have the respective meanings
indicated below:
(1) "SOFTWARE" means what is described in each following provisions;
(i) computer programs (including Object Codes and Source Codes,
and amended versions, extended versions and/or updated or
secondary works thereof, and all the reproductions of the
above-mentioned matters)
(ii) Software Documents regarding the preceding provision.
(2) "OBJECT CODE" means a program which is generated by compiling a
Source Code and which is possible to be directly loaded to
computer system and executed.
(3) "SOURCE CODE" means a program described in programming language
to be recognized by human, which programmers with skills are able
to understand, and which is impossible to be executed without
compiling or interpreting into an Object Code.
(4) "SOFTWARE DOCUMENTS" means technical materials related to
software and general technical materials (such as instruction
manuals, data sheets, design specifications, design drawings and
logic diagrams) and information included in these materials.
2. Delivery of Software
In relation to the software relating to which a license is granted
under this Agreement, the Licensor shall deliver Object Codes, Source
Codes (excluding Source Codes belonging to third parties' rights in
relation to which the Licensor is imposed any limitation) and Software
Documents.
3. License of Software
The content of the license of the rights concerning software set forth
in Article 2, paragraph 1 and 2 herein shall be as follows.
(1) The Licensor shall grant the Licensee the nonexclusive licenses
as follows:.
-13-
(a) use
(b) reproduction and alteration (including diversion into other
Software)
(c) sale (excluding disclosure of Source Codes)
(d) license to a third party a right to use as mentioned in (a)
above
(2) Notwithstanding the preceding paragraph, the Licensee shall not
disclose to any third party the Source Code of Software relating
to which a license is granted without the written authorization
by the Licensor
4. Version Control
(1) Versions of Software shall be controlled by the Licensor,
provided however that new versions which the Licensee alters,
etc. independently shall be controlled by the Licensee and in
relation to such new version, the Licensor shall have no
liability.
(2) Notwithstanding the preceding paragraph, the Licensee may consign
the control of new versions which the Licensee alters, etc.
independently to the Licensor for value.
-14-
Annex 2
Exceptions to the Representation and Warranties
provided for in Article 11, paragraph 3
As exceptions to the representation and warranties provided for in Article 11,
paragraph 3, the following facts exist as of the execution date hereof.
1. By the content-certified mail as of August 8, 2002, Auckland UniServices
Limited and DAIFUKU CO., LTD. lodged the following protest through their
counsel, Mori Sogo Law Office.
(1) The overhead feed device (OHS) which Shinko sold NEC Yamagata Ltd. and
UMC of Taiwan, etc. infringes the patent number 2667054, claim 22
(invention regarding aluminum rail) regarding "Inductive power
distribution system" owned by Uniservices Limited.
(2) The overhead feed devices (OHT, OHS and Super Rim Liner F3) which
Shinko produces and sells infringes the above-mentioned patent number
2667054, claim 30 (control regarding circuit structure) in light with
the circuit structure used in these devices.
2. The patents in relation to the products of Shinko regarding which the
above-mentioned protest was lodged are the following three (3) patents,
which are to be licensed to Asyst Shinko pursuant to this Agreement.
[Related Patents]
Annex A List No. 124 overhead feed device Public Registration Number: JP10-248108
Annex A List No. 329 overhead feed trans Public Registration Number: JP2002-134340
Annex A List No. 330 overhead feed device Application Number: JP10-248108
3. It is Shinko intention to protect the Related Patents as described in
Article 2 above at its own expense and liability.
-15-
[Parts Supply Agreement executed as of 2002.10.01]
(Translation)
PARTS SUPPLY AGREEMENT
This Agreement is entered into by and between Shinko Electric Co., Ltd.
(hereinafter referred to as "Shinko") and Asyst Shinko, Inc. (hereinafter
referred to as "Asyst Shinko"), as follows:
Article 1 (Purpose of this Agreement)
The purpose of this Agreement is to provide for the transaction terms under
which Shinko will supply Parts (as defined in Article 2) to Asyst Shinko
pursuant to the shareholders agreement dated May 24, 2002 (hereinafter referred
to as the "Shareholders Agreement") entered into by and between Shinko and Asyst
Japan, Inc. (hereinafter referred to as "Asyst Japan").
Article 2 (Target Products of this Agreement)
This agreement shall apply to the parts to be supplied to Asyst Shinko by
Shinko, including those currently manufactured by Shinko which are set out in
Attachment 1 (hereinafter referred to as the "Existing Parts") and those to be
newly manufactured by Shinko (hereinafter referred to as the "New Parts") (both
the Existing Parts and the New Parts hereinafter collectively referred to as the
"Parts").
Article 3 (Term of this Agreement and Supply Period)
1. The term of this Agreement shall be one (1) year from the execution date
hereof.
2. This Agreement shall be automatically renewed for additional periods of
one (1) year from the day immediately following the expiration of the term
hereof under the same conditions and the same shall apply thereafter;
provided, however, that if the parties agree otherwise, such other
agreement shall be complied with.
1
3. If the Shareholders Agreement is terminated or if it becomes certain that
the voting rights of Asyst Shinko held by Shinko or its related companies
will become one third or less of the total voting rights held by all the
shareholders of Asyst Shinko, the parties hereto shall consult with each
other in good faith as to the handling of this Agreement and if agreement
is reached within thirty (30) days from the date of occurrence of the
relevant event, this Agreement shall be handled pursuant to such
agreement; provided, however, that if no such agreement is reached between
the parties within thirty (30) days from the occurrence of the relevant
event, this Agreement shall be terminated upon the expiration of
one-hundred and fifty (150) days from such date. For the purpose of this
paragraph, "related companies" means subsidiaries or affiliates (as
defined in the Regulation Concerning Terminology, Forms and Method of
Preparation of Financial Statements (Ministerial Ordinance of the Ministry
of Finance, No.59 of 1963) of Shinko.
4. Notwithstanding the preceding three (3) paragraphs, the provisions of
Article 8, Articles 10 through 14 and Article 16 hereof shall remain in
full force after the expiration of the term of this Agreement.
5. Shinko may, by giving a written notice to Asyst Shinko of its intention to
discontinue to supply certain parts specified therein, discontinue
supplying such parts after a period of half a year [from the date of the
notice]. In this case, Shinko may exclude those specified parts from those
items which make up the Parts after the half year period from the delivery
date of such notice, unless both parties otherwise agree upon consultation
in cases where such discontinuance may have a material adverse effect on
the management of Asyst Shinko.
Article 4 (Individual Transactions)
1. The name, specifications, quantity, unit price, date of delivery, place of
delivery, terms of inspection upon receipt and payment conditions of the
Parts or any other terms necessary for the sale and purchase of the Parts
other than those provided for herein shall be specified by Asyst Shinko in
the relevant purchase order each time an individual sales transaction is
entered.
2. The time of conclusion of an individual transaction in respect of Parts
ordered by Asyst
2
Shinko as provided for in the preceding paragraph shall be as follows:
(i) If Asyst Shinko places an order with Shinko for Parts pursuant to
the conditions for price and base delivery period of the Parts set
forth in Attachment 2, an individual transaction shall be concluded
upon receipt of such order by Shinko.
(ii) If Asyst Shinko places an order with Shinko for Parts on conditions
different from those for price and base delivery period set forth in
Attachment 2, an individual transaction shall be concluded when an
agreement in writing is reached on the relevant conditions pursuant
to consultations between the parties hereto after the receipt of
such order by Shinko.
3. Upon the conclusion of an individual transaction, Shinko shall be obliged
to manufacture the Parts which are the subject of such individual
transaction and to supply the same to Asyst Shinko, and Asyst Shinko shall
be obliged to purchase the same.
4. Even after the individual transaction was effected pursuant to paragraph 3
above, Asyst Shinko may terminate such individual transaction by giving
written notice to Shinko. In this case, the termination shall be effective
upon delivery of the said notice to Shinko, and Shinko may purchase the
materials and parts from Asyst Shinko which it has procured up to that
time for the relevant individual transaction at the procurement cost plus
three percent (3%) thereof as the management fee then applicable to the
price of the Parts, and may claim Asyst Shinko payment of the expenses
including personnel costs, etc., which Shinko has incurred in relation to
the relevant individual transaction.
5. Prior to the last date of the delivery period set forth in each individual
transaction, Asyst Shinko may propose to Shinko a negotiation over the
extension of the delivery period and Shinko shall accept such negotiation
in good faith; provided, however, that if the parties fail to reach an
agreement within thirty (30) days from the date of said proposal of
negotiation, the termination shall be deemed to come into effect and the
provision of the second sentence of the preceding paragraph shall apply
mutatis mutandis.
6. Both parties shall separately consult each other and prepare an operating
manual in respect of the detailed manner of operation of the business
relating to this Agreement.
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Article 5 (Price)
1. The prices of the Parts shall be those determined pursuant to the
following conditions unless otherwise agreed between the parties hereto:
(i) The prices of the Existing parts shall be the internal transfer
prices of Shinko as of May 2002 which are specified as the "Transfer
Price" in Attachment 2 hereto, plus three percent (3%) thereof as
the management fees.
(ii) The prices of the New Parts shall be determined through consultation
between the parties upon Shinko's proposal of an estimate based on
the technical drawings. The same shall apply to any parts to be
ordered on case-by-case basis.
(iii) The prices of the Parts need to be determined by Asyst Shinko prior
to placing its order. If, in view of the delivery period, Asyst
Shinko has no choice but to place the order before the agreement on
the prices, both parties shall determine the price upon consultation
in good faith prior to the completion of shipment by Shinko.
2. The prices of the Parts shall, in principle, be adjusted only once a year
in accordance with fluctuations in costs regarding the Parts, pursuant to
prior consultations between the parties, and such adjustment shall be made
not later than the end of January in a calendar year in respect of the
period from April of the relevant year to March of the next year;
provided, however, that if at any other time a party makes a request to
the other party for an adjustment of the prices of the Parts due to a
substantial fluctuation in the cost of the Parts or a great discrepancy in
the forecasted manufacturing based on the sales prospects, the other party
shall agree to consult with that first party.
Article 6 (Delivery and Inspection)
The terms of delivery of the Parts shall be as follows:
1. Unless otherwise agreed between the parties, Shinko shall deliver the
Parts to Asyst Shinko on such date and at such place of delivery as set
forth in the relevant individual agreement.
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2. Asyst Shinko shall, upon receipt of the Parts, inspect the quantity,
specifications, quality, etc. of the Parts and notify Shinko of the result
thereof within ten (10) days from and including the day of such receipt.
If Asyst Shinko fails to notify the result of such inspection within ten
(10) days from receipt by it of the Parts, the Parts shall be deemed to
have passed the inspection.
3. The delivery of the Parts shall be deemed to have been completed and the
ownership thereof shall be transferred to Asyst Shinko, once the Parts
have passed the inspection pursuant to the preceding paragraph.
Article 7 (Charge for and Payment of Prices)
Shinko shall calculate the price of the Parts payable on the last day of the
month in which it delivers the Parts to Asyst Shinko (the "Calculation Day")
based on the parts delivered to Asyst Shinko by the Calculation Day and passed
the inspection, and issue an invoice, and Asyst Shinko shall make the relevant
payment by drawing a draft with a maturity of one-hundred and fifty days after
the payment due date which is the end of the month being the three (3) month
following the month of inspection.
Article 8 (Late Payment Charges)
If Asyst Shinko fails to pay any amount payable for the Parts, it shall pay
Shinko a late payment charge of 14% per annum for the period from the day
immediately following the original payment date to the day on which such payment
is completed.
Article 9 (Specifications of Parts)
The specifications of the Parts supplied by Shinko to Asyst Shinko shall be
subject to any agreements reached between Shinko and Asyst Shinko from time to
time based, in principal, on the specifications for the Parts manufactured by
Shinko at the time of execution of this Agreement.
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Article 10 (Guarantee of Parts, etc.)
1. In the event that any hidden defect is found in any of the Parts during
the period of twelve (12) months from the delivery thereof and Asyst
Shinko notifies the existence of such defect to Shinko, Shinko shall, at
its discretion, take either measure to reduce the price or make repair of
the relevant Parts; provided, however, that this provision shall not apply
to any defect in the Parts attributable to Asyst Shinko.
2. If Asyst Shinko finds any hidden defect in relation to the Parts before
the expiration of twelve (12) months from the delivery thereof to Shinko
and fails to give notification describing the same to Shinko, or if Asyst
Shinko finds any defect in relation to the Parts after the expiration of
twelve (12) months from the delivery thereof to Asyst Shinko, Shinko shall
repair the relevant Parts for value.
Article 11 (Product Liability)
1. In case any damage occurs or is likely to occur in relation to life, body,
property, etc. of any person due to defect, etc. of the Parts or any
product manufactured using the Parts, Asyst Shinko may, at its option,
suspend the performance of or cancel the whole or a part of this Agreement
and any individual sales agreement hereunder upon notification to Shinko
of its intention to so suspend or cancel.
2. If any dispute arises between Asyst Shinko and a third party in connection
with the defect of any products manufactured by Asyst Shinko using the
Parts which have passed inspection pursuant to Article 6, Asyst Shinko
shall settle such dispute at its own expense; provided, however, that if
such dispute arises due to the willful misconduct or gross negligence of
Shinko or results mainly from any defect of the Parts which occurred in
the manufacturing process at Shinko, Asyst Shinko may claim Shinko with a
damage incurred by Asyst Shinko, to the extent of the aggregate price of
the Parts in which the defect was found, which has been paid to Shinko by
Asyst Shinko. Determination of any defects in the Parts shall be made upon
consultation in good faith between the departments of both parties which
are in charge of quality assurance.
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Article 12 (Confidentiality)
Shinko and Asyst Shinko shall, in respect of any and all technical and business
information provided by the other party hereunder on a confidential basis, keep
such information confidential pursuant to the provisions of the "Comprehensive
Confidentiality Agreement" dated October 1, 2002, entered into by and between
Shinko and Asyst Shinko.
Article 13 (Default of Contractual Obligations, etc.)
1. In the event that either Shinko or Asyst Shinko becomes the subject of any
of the following events, the full amount of any outstanding liabilities
owed to the other party shall become due and payable and the relevant
party shall pay any monetary liabilities in cash and perform any other
liabilities immediately in accordance with the purpose of such
liabilities:
(i) it has delayed payment or otherwise breached any obligation
hereunder or under any individual transaction;
(ii) an application is made against it for attachment or compulsory
execution in respect of its material assets or it has become subject
to disposition for failure to pay taxes;
(iii) an application is made by or against it for corporate reorganization
proceedings, civil rehabilitation proceedings, bankruptcy, company
arrangement or special liquidation and such application is not
withdrawn within sixty (60) days, or any resolution of or judgment
ordering its dissolution is made; or
(iv) when any ▇▇▇▇ or check drawn or accepted by it is dishonored or when
it suspends payment or is unable to pay its debts.
2. In the event that either Shinko or Asyst Shinko become the subject of any
of the events set out in paragraph 1, item 1 above, if the other party
gives a written demand to the relevant party stating a reasonable deadline
and the relevant default is not remedied by
7
such deadline, such other party may terminate this Agreement.
3. In the event that either Shinko or Asyst Shinko becomes the subject of any
of the events set out in paragraph 1, items 2 through 4 above, the other
party may immediately terminate this Agreement.
4. If Asyst Shinko determines that continuance of this Agreement is
inappropriate for carrying out of its business or lacks reasonability from
an economic point of view, and notifies Shinko in writing to that effect,
then both parties shall consult each other concerning the handling of this
Agreement. If such consultation will not be adequately conditioned after
one (1) month from the commencement thereof, and Asyst Shinko notifies
Shinko of its intention to terminate this Agreement in writing upon
providing a period of not less than ninety [90] days, this Agreement shall
be terminated upon expiration of such period. In this case, Asyst Shinko
shall remain liable to perform its obligations hereunder which are already
in effect at the time of the termination hereof.
5. The provision of Article 3, paragraph 4 shall apply mutatis mutandis even
if this Agreement is terminated by cancellation or termination pursuant to
this Article.
Article 14 (Immunity in case of Force Majeure)
In case of any delay in performance of all or any part of any agreement or in
case of any inability to deliver the Parts due to natural disaster, accident of
transportation facilities or any other reason not attributable to Shinko, Shinko
shall not be responsible therefor.
Article 15 (Doubt about Agreement)
Any doubt arising in terms of the interpretation of this Agreement shall be
determined upon consultation between the parties in accordance with commercial
practice, the Commercial Code, the Civil Code, any other laws and ordinances and
the purpose of this Agreement.
Article 16 (Jurisdiction and Governing Law)
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This Agreement shall be governed by and construed in accordance with the laws of
Japan. Shinko and Asyst Shinko hereby agree to submit to the exclusive
jurisdiction of the Tokyo District Court in respect of any dispute arising from
or in connection with this Agreement.
Article 17 (Transfer of Contractual Position)
Neither Shinko nor Asyst Shinko may transfer or otherwise dispose of all or any
part of their respective rights and obligations hereunder or their contractual
position hereunder to a third party without the prior written consent of the
other party.
Article 18 (Entire Agreement)
This Agreement constitutes the entire and final agreement of the parties hereto
and replaces or supersedes any and all prior agreements and arrangement between
the parties relating to the matters stipulated herein. This Agreement shall be
amended only by written agreement of the parties.
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IN WITNESS WHEREOF, this Agreement has been made in duplicate and executed by
the parties by affixing their names and seals hereto, each retaining one copy.
October 1, 2002
Shinko Electric Co., Ltd.
▇-▇▇, ▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
President and Representative Director
Asyst Shinko, Inc.
▇-▇▇, ▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇
President and Representative Director
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Attachment 1
The Parts
[To be replaced by Attachment 1 to the Parts Supply Agreement]
11
Attachment 2
Price List and Base Delivery Period of the Parts
[To be replaced by Attachment 2 to the Parts Supply Agreement]
12