Exhibit 10.4
MANAGEMENT AGREEMENT
This Management Agreement (the "Agreement") is made and entered into as of the
30th day of November, 2000, by and between PRI Automation Inc., a corporation
duly organized and existing under the laws of the State of Massachusetts,
U.S.A., with its registered office at 805 Middlesex Turnpike, Billerica, MA
01821 U.S.A., (the "PRI"), and Wan Keun Lee, ("WK Lee"), a citizen of the
Republic of Korea and the majority shareholder of Shinsung Eng Co., Ltd., a
corporation duly organized and existing under the laws of the Republic of Korea
(the "Company").
WHEREAS, on or before the execution of this Agreement, PRI shall enter into a
Share Subscription Agreement with the Company for the subscription and purchase
of shares in the Company;
WHEREAS, as a condition of its subscription and purchase of shares in the
Company, PRI shall be entitled to representation on the Board of Directors of
the Company in accordance with the terms and conditions provided hereunder;
NOW, THEREFORE, in consideration of the premises and the mutual agreements
hereunder, the Parties agree as follows:
ARTICLE 1. INTERPRETATION
Capitalized terms used herein shall have the same meaning as defined in the
Share Subscription Agreement.
ARTICLE 2. MANAGEMENT OF THE COMPANY
2.1 MANAGEMENT. Responsibility for the management, direction and control of
the Company shall be vested in the Board of Directors of the Company. The Board
of Directors may delegate authority for the management of the Company to
officers of the Company in accordance with resolutions duly passed and
consistent with the Company's Articles of Incorporation and mandatory provisions
of law.
2.2 BOARD OF DIRECTORS. WK Lee shall be obligated to take all actions
necessary, including, but not limited to, exercising all his voting rights in
the Company, to ensure that, on and after the closing date of the Share
Subscription Agreement:
(i) the Board of Directors of the Company shall consist of five
(5) members;
(ii) among the members of the Board of Directors, such number of
the nominees of PRI as is proportionate to the shareholding
ratio of PRI in
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the Company (but in no event less than one) shall be elected
as the member(s) of the Board of Directors of the Company; and
(iii) the directors of the Company, including such directors
nominated by PRI, shall be indemnified and held harmless to
the maximum extent permitted by law for any claims, losses or
damages arising in connection with any action taken by them as
directors of the Company.
2.3 MEETINGS AND NOTICE. Meetings of the Board of Directors shall be held
at least once every calendar quarter in Seoul or such other place as the Parties
may otherwise agree and all expenses incurred by the directors or observers in
attending the board meetings shall be reimbursed, free of withholding taxes, by
the Company. Meetings of the Board of Directors may be called at any time by the
Representative Director provided that notice is provided to the Directors as
required by this Article 2.3, and meetings of the Board of Directors shall be
called by the Representative Director or any Director then in office. The
Representative Director of the Company shall send written notice of meetings of
the Board of Directors by not later than fourteen (14) days prior to the date of
the meeting, setting forth the date, time and place of the meeting and the
agenda to be discussed at the meeting.
2.4 RESOLUTIONS. Subject to the provisions of Article 2.5 hereof, unless
otherwise provided by applicable law, all actions taken and resolutions adopted
at a meeting of the Board of Directors shall be taken or adopted by the
affirmative vote of a majority of the Directors present at a meeting at which a
quorum is present.
2.5 RESERVED MATTERS. Notwithstanding the provisions of Article 2.4, in
relation to any of the matters set forth below in this Article 2.5, WK Lee and
PRI shall cast, and/or shall have their respective nominee(s) at the Board of
Directors of the Company cast, their votes at a meeting of the Board of
Directors only in accordance with the mutual prior written agreement by and
between WK Lee and PRI:
(a) The incurrence of indebtedness other than indebtedness
incurred in the Ordinary Course of Business in accordance with
the business plan approved by the Board of Directors,
repurchase of indebtedness or payment of indebtedness prior to
the applicable due date therefor;
(b) Investments amounting to thirty per cent (30%) of the total
paid-in capital amount of the Company or more;
(c) The sale or disposition of assets having a value in excess of
twenty per cent (20%) of the book value of the whole assets of
the Company; and
(d) The creation of any committee of the Board of Directors or the
delegation of any power to the Board of Directors.
ARTICLE 3. MAXIMUM SHAREHOLDING RATIO OF PRI
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PRI hereby agrees that it shall exercise the warrants under the Subject Bond
with Warrants only to the extent that its shareholding ratio in the Company, on
a fully diluted basis after its exercise of the warrants, reaches 19.5% of the
total issued and outstanding shares of the Company. WK Lee shall have the right
to purchase any remaining warrants from PRI at the fair market value as
determined by using the Black Scholes option model.
PRI further agrees that, except for (a) its subscription of the Subject Shares
and the acquisition of the additional shares upon exercise of the warrants as
set forth in the Subscription Agreement and this Agreement and (b) acquisition
of additional shares from the Company upon bonus issue of shares, stock
dividends, stock division or issue of new shares to the existing shareholders of
the Company, PRI shall not purchase any additional shares of the Company from
the securities market or the over-the-counter market to the extent that its
shareholding ratio in the Company exceeds 19.5% of the total issued and
outstanding shares of the Company.
ARTICLE 4. TERM
This Agreement shall be effective upon its execution by the Parties and shall
continue in full force and effect so long as PRI shall remain a shareholder of
the Company with not less than five percent (5%) of the total issued and
outstanding shares of the Company.
ARTICLE 5. ARTICLES OF INCORPORATION OF THE COMPANY
The Articles of Incorporation of the Company shall be in conformity with the
terms and conditions of this Agreement. If any discrepancy is found between this
Agreement and the Articles of Incorporation of the Company, the parties shall
promptly amend the Articles of Incorporation of the Company to make them
consistent with this Agreement.
ARTICLE 6. MISCELLANEOUS
6.1 GOVERNING LAW. This Agreement and all disputes arising out of or in
connection with this Agreement shall be governed by, interpreted under, and
construed and enforced in accordance with the laws of the Republic of Korea.
6.2 DISPUTE RESOLUTION. Any dispute, controversy, claim or disagreement
arising under, from or relating to this Agreement or the breach thereof shall be
finally settled by an arbitration in Seoul, Korea by three (3) arbitrators in
accordance with the ICC Rules for International Arbitration then in effect.
6.3 ASSIGNMENT. Neither party may assign this Agreement or any of the
rights or obligations hereunder to any third party.
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6.4 WAIVER. The failure of either party to enforce at any time any
provision of this Agreement shall not constitute a waiver thereof, or a waiver
of the right to thereafter enforce such provision, or to claim damages or to
terminate this Agreement for any subsequent or continuing breach or default of
such or any other provision.
6.5 ENTIRETY AND MODIFICATION. This Agreement constitutes the entire
agreement between the Parties hereto with respect to the subject matter hereof,
and supersedes any and all prior agreements, understandings, and representations
concerning the subject matter hereof. No modification of, addition to, or waiver
of any of the terms of this Agreement shall be effective unless set forth in
writing signed by each of the Parties hereto.
6.6 SEVERABILITY. If any provision hereof is or becomes invalid, illegal or
unenforceable, the validity, legality and enforceability of the remaining
provisions hereof shall not in any way be affected or impaired thereby.
IN WITNESS WHEREOF, the Parties hereto have entered into this Agreement as of
the day and year first above written
Wan Keun Lee PRI Automation Inc.
/s/ W.K. LEE /s/ MITCHELL G. TYSON
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Name: Wan Keun Lee Name: Mitchell G. Tyson
Title: President Title: President and CEO
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