1
CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission]
Exhibit 10.6
ORGANIZATION AGREEMENT
THIS AGREEMENT made as of the 3rd day of December, 1982, by and between
EATON CORPORATION, a corporation organized and existing under the laws of the
State of Ohio, United States of America, having its principal place of business
at 100 Erieview Plaza, Cleveland, Ohio, U.S.A. (hereinafter referred to as
"EATON"), and SUMITOMO HEAVY INDUSTRIES, LTD., a corporation organized and
existing under the laws of Japan and having its principal place of business at
2-1, Ohtemachi 2-chome, Chiyoda-ku, Tokyo 100, Japan (hereinafter referred to as
"SUMITOMO"),
WITNESSETH:
WHEREAS, EATON has, throughout the world, been active in the
engineering, manufacture and sale of certain high current ion implantation
products (hereinafter defined as "the Products"); and
WHEREAS, EATON has acquired and now possesses, through the expenditure
of considerable time, effort and money, certain industrial property rights,
including (a) letters patent and applications therefor, (b) technical
information and (c) trademark and applications therefor, pertaining to the
development, manufacture and marketing of the Products, and
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WHEREAS, EATON and SUMITOMO desire to enter into a joint venture in
Japan for the manufacture, use and sale of the Products by organizing a limited
liability stock company, i.e., a Kabushiki Kaisha, named SUMITOMO EATON NOVA
KABUSHIKI KAISHA (SUMITOMO EATON NOVA CORPORATION) (hereinafter called "SEN")
under the laws of Japan for such purpose and to utilize said industrial property
rights of EATON in connection therewith.
NOW, THEREFORE, in consideration of the mutual agreements, promises and
undertakings hereinafter set forth, the parties hereto agree as follows:
ARTICLE I - DEFINITIONS
-----------------------
SEN as used herein shall mean SUMITOMO EATON NOVA KABUSHIKI KAISHA (SUMITOMO
EATON NOVA CORPORATION), the limited liability stock company (KABUSHIKI KAISHA)
to be formed in Japan by SUMITOMO and EATON in accordance with this Agreement.
AFFILIATED COMPANY as used herein shall mean any corporation or other legal
entity in which EATON, SUMITOMO or a Related Company (as defined later in this
Article I) of either owns less than the majority of the outstanding voting
stock.
ARTICLES OF INCORPORATION as used herein shall mean the Articles of
Incorporation in the form attached hereto to be
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adopted by SEN pursuant to Section 1 of Article III of this Agreement.
ASSOCIATED AGREEMENTS as used herein shall mean those agreements related to this
Organization Agreement which are to be executed between any two or more parties
of or among SUMITOMO, EATON and SEN, as the case may be, pursuant to Article V
of this Agreement.
BY-LAWS as used herein shall mean the By-Laws in the form attached hereto to be
adopted by SEN pursuant to Section 1 of Article III of this Agreement.
EFFECTIVE DATE as used herein shall mean the date of issuance by the appropriate
Japanese governmental authorities of the last to be issued of the several
approvals, validations and rulings under the Foreign Exchange and Foreign Trade
Control Law referred to in this Agreement and the Associated Agreements.
PRODUCTS as used herein shall have the same meaning as "Products" defined in the
Associated Agreement annexed hereto entitled "License Agreement."
RELATED COMPANY as used herein shall mean any corporation or other legal entity
(a) which owns, directly or indirectly, the majority of the outstanding voting
stock of a party hereto, (b) the majority of the outstanding voting stock of
which is owned by a party hereto, or (c) the
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majority of the outstanding voting stock of which is owned, directly or
indirectly, by any corporation or other legal entity described in clauses (a)
and (b) of this sentence.
TERRITORY as used herein shall have the same meaning as the terms "Exclusive
Territory" and "Non-Exclusive Territory", as defined in the Associated Agreement
annexed hereto entitled "License Agreement."
ARTICLE II - AUTHORIZATION
--------------------------
Section 1. Approval by the Japanese Government
- ----------------------------------------------
Promptly after execution of this Organization Agreement, SUMITOMO, on
behalf of EATON, shall make, without any cost to EATON, application(s) to the
appropriate authorities of the Japanese Government for validations and
approvals, under the Foreign Exchange and Foreign Trade Control Law of Japan and
all other applicable laws, of (1) the acquisition by EATON of shares of SEN, (2)
the granting by EATON to SEN of license rights under certain EATON industrial
property rights pursuant to the Associated Agreements, and (3) any and all of
the other Associated Agreements as may be necessary. Such validations and
approvals must include assurance by the Japanese Government of the
convertibility and remittance to a bank or other depository designated by EATON
in United States Dollars or other currency, whichever EATON specifies, of any
and all cash distributions of any kind which may be paid by SEN to EATON,
including but not limited to
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(1) fees, (2) royalties, (3) reimbursable costs, (4) dividends, (5)
distributions which may be made upon liquidation, dissolution or reorganization,
(6) monies payable to EATON from the sale or other disposition of shares of SEN
and (7) any other payment to EATON contemplated under this Agreement and all the
Associated Agreements, during any period in which this Agreement and the
Associated Agreements are in effect.
EATON shall reserve the right to participate with SUMITOMO in the
making and conduct of said application(s) for validations and approvals to the
Japanese Government authorities. SUMITOMO shall promptly provide EATON copies of
any documents filed with the Japanese Government related to said application(s)
for validation and approvals, plus English translations of (i) the fundamental
presentations of such documents and (ii) any correspondence received from the
Japanese Government relating to said application(s) for validations and
approvals.
Section 2. Suspension of Obligations
- ------------------------------------
Except with respect to the obligation hereby acknowledged by the
parties to cooperate in good faith in the diligent prosecution of the
application(s) referred to in Section 1 of this Article II, this Agreement shall
remain wholly executory and conditional until such time as validations and
approvals required by the provisions of this Article II have been obtained.
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ARTICLE III - ORGANIZATION OF COMPANY
-------------------------------------
Section 1. Organization of SEN
- ------------------------------
Subsequent to the Effective Date and prior to the execution of the
Associated Agreements by the parties thereto, SUMITOMO, on behalf of EATON,
shall cause, without any cost to EATON, a limited liability stock company
(Kabushiki Kaisha) to be organized and registered under the laws of Japan, for
the purpose of import, manufacture, assembly and marketing of the Products and
activities incidental thereto. The name of said company shall be SUMITOMO EATON
NOVA KABUSHIKI KAISHA (SUMITOMO EATON NOVA CORPORATION) ("SEN"). The Articles of
Incorporation of SEN shall be as stated in the document attached hereto entitled
"ARTICLES OF INCORPORATION OF SUMITOMO EATON NOVA KABUSHIKI KAISHA" (SUMITOMO
EATON NOVA CORPORATION). The By-Laws of SEN shall be as stated in the document
attached hereto entitled "BY-LAWS OF SUMITOMO EATON NOVA KABUSHIKI KAISHA
(SUMITOMO EATON NOVA CORPORATION)".
EATON shall reserve the right to participate with SUMITOMO in the
organization and registration of SEN. SUMITOMO shall promptly provide EATON
copies and English translations of any documents filed with relation to the
organization and registration of SEN pursuant to this Section 1 of Article III.
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Section 2. Capital on Organization
- ---------- -----------------------
At the time of organization and registration of SEN pursuant to Section
1 of Article III of this Agreement, SEN shall have an authorized capital of ONE
THOUSAND MILLION YEN (YEN1,000,000,000), consisting of TWENTY THOUSAND (20,000)
shares of common stock having a par value of FIFTY THOUSAND YEN (YEN50,000)
each.
As of the time of organization and registration of SEN in accordance
with Section 1 of this Article III, the common stock of SEN shall have been
subscribed for and issued as follows:
TO SUMITOMO - SIX THOUSAND (6,000) shares in
consideration of and exchange
for payment by SUMITOMO in the
amount of (YEN)300,000,000.
TO EATON - SIX THOUSAND (6,000) shares in
consideration of and exchange
for payment by EATON in the
amount of (YEN)300,000,000.
It is the intent of EATON and SUMTOMO that EATON and SUMITOMO shall
each own and control a Fifty percent (50%) equity interest in SEN unless
mutually agreed otherwise.
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ARTICLE IV - FUTURE FINANCING OF SEN
------------------------------------
Section 1. Additional Capital Requirements
- ------------------------------------------
SUMITOMO and EATON anticipate that SEN may require capital in the
future in addition to the share capital provided pursuant to Article III hereof
and any such additional capital shall be obtained from any of the following
sources as may be mutually agreed upon by the parties:
(a) Loans to be obtained by SEN from Japanese banks and other such
independent sources. In such event, SUMITOMO and EATON shall
exert their best efforts to assist SEN in obtaining any such
loans. The parties agree that they will provide guarantees of
loans made to SEN in proportion to their respective
shareholdings in SEN.
(b) Retained profits of SEN.
(c) Increases in the capital of SEN provided that such increases
shall be subject to the provisions of Sections 2 and 3 of this
Article IV.
(d) Loans to be made to SEN by (i) its shareholders and/or (ii) a
Related Company to any of the shareholders, provided that all
such loans shall be subject to the provisions of Section 3 of
this Article IV.
Section 2. Pre-emptive Rights
- -----------------------------
The shareholders of SEN shall have pre-emptive rights to subscribe to
any shares which may be newly issued by SEN in accordance with the Articles of
Incorporation.
Section 3. Government Authorizations
- ------------------------------------
Anything to the contrary in this Article IV notwithstanding, neither
EATON nor SUMITOMO shall be required to
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provide any part of the additional funds for SEN, whether in the form of equity
or loans pursuant to Section 1 of this Article IV, unless EATON and/or SUMITOMO
shall first obtain the appropriate authorization(s) under Japanese law and
regulations in force at the time such funds are to be provided, including
authorization enabling EATON to receive dividends or interest, as the case may
be, deriving from the investment of such funds, or to repatriate such funds, in
United States Dollars or whatever currency EATON specifies.
ARTICLE V - ASSOCIATED AGREEMENTS
---------------------------------
Section 1. Agreements
- ---------------------
EATON, SEN and/or SUMITOMO, as the case may be, shall adopt or enter
into the documents and agreements annexed hereto, which documents and agreements
are entitled as follows:
(a) "Articles of Incorporation of Sumitomo Eaton Nova Kabushiki
Kaisha (Sumitomo Eaton Nova Corporation)";
(b) "By-Laws of Sumitomo Eaton Nova Kabushiki Kaisha (Sumitomo
Eaton Nova Corporation)",
(c) "License Agreement";
(d) "Trademark Agreement (Eaton)";
(e) "Trademark Agreement (Sumitomo)";
(f) "Export Control Agreement";
(g) "Export Sales Agreement";
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(h) "Corporate Name Agreement (Eaton)";
(i) "Corporate Name Agreement (Sumitomo)".
Section 2. Accession by SEN
- ---------------------------
The parties hereto shall cause SEN to accede in writing to all of the
provisions of this Agreement.
ARTICLE VI - OPERATION OF SEN
-----------------------------
Section 1. General Intention
- ----------------------------
It is the intention of EATON and SUMITOMO that the Products to be
manufactured by or for SEN shall (a) conform with EATON's basic designs of the
Products, and (b) be of substantially the same quality and serviceability as the
Products manufactured outside the Territory by EATON, its subsidiaries,
licensees and Affiliated Companies.
Section 2. Export Sales
- -----------------------
Any and all sales outside the Territory of the Products manufactured by
SEN shall be conducted exclusively through EATON in accordance with the
Associated Agreement annexed hereto entitled "Export Sales Agreement."
Section 3. Personnel of SEN
- ---------------------------
Unless otherwise agreed, it is the intention of the parties that
SUMITOMO shall be responsible for the initial
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CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission]
staffing of SEN with appropriate management personnel, it being understood that
the key personnel thereof shall be subject to the consent of EATON. Thereafter,
EATON and SUMITOMO shall jointly review from time to time the desirability of
continuing SUMITOMO's furnishing personnel to SEN.
It is the further intention of the parties hereto that SEN shall
develop marketing and servicing organizations capable of selling and servicing
the Products effectively.
Section 4. Management Fee
- -------------------------
SEN will pay SUMITOMO a management assistance fee of [*] of SEN'S Net
Sales (as defined in the License Agreement annexed hereto) of the Products for
fifteen (15) years from the incorporation of SEN.
ARTICLE VII - MANAGEMENT OF SEN
-------------------------------
Section 1. Directors
- --------------------
Except as otherwise provided in the Articles of Incorporation or
required by mandatory provisions of Japanese law, responsibility for the
management, direction and control of SEN shall be vested in the Board of
Directors of SEN. So long as EATON and SUMITOMO each own Fifty percent (50%),
respectively, of the issued and outstanding shares of SEN, SUMITOMO and EATON
agree to vote their respective shares in SEN so that at all times the directors
of SEN shall be persons nominated by SUMITOMO and
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EATON in the same ratio as their respective shareholdings in SEN.
Section 2. Officers
- -------------------
From among the persons constituting the Board of Directors of SEN, the
following officers of SEN shall be nominated and elected:
A President and a Vice President. The President shall be a director
nominated by SUMITOMO; the Vice President shall be a director nominated
by EATON.
Section 3. Representative Directors
- -----------------------------------
The President and the Vice President of SEN shall be appointed the
Representative Directors and shall act in accordance with the resolutions and
instructions of the Board of Directors.
Section 4. Accounting and Auditors
- ----------------------------------
The annual accounting period of SEN shall end on December 31 of each
year. Complete books of account and records shall be kept by SEN according to
sound accounting practices. SEN shall have two (2) statutory auditors, one of
which shall be nominated by SUMITOMO and one of which shall be nominated by
EATON. The parties agree to vote their respective shareholdings in SEN for the
statutory auditor nominated from time to time by the other party.
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Section 5. Audit of SEN's Books
- -------------------------------
An audit of the books and records of SEN shall be conducted, from time
to time, by a firm of independent public accountants upon the written request of
EATON or SUMITOMO. The party requesting such audit of the books and records of
SEN shall select said independent public accountants and assume all expenses
related to said audit.
Section 6. Remuneration for Non-Standing Directors
- --------------------------------------------------
It is understood that SEN shall not pay the salaries, retirement
allowances and traveling and lodging expenses for any non-standing directors of
SEN. These expenses shall be borne by the parties which nominate such
non-standing directors.
ARTICLE VIII - RECOGNITION OF RIGHTS AND
----------------------------------------
ENCUMBRANCE AND SALE OF SHARES
------------------------------
Section 1. Recognition of Rights
- --------------------------------
EATON, SUMITOMO and SEN shall not, nor shall any Related Company of
EATON, SUMITOMO or SEN consent to or aid others in contesting or do anything
which might impair the validity, scope or ownership of any letters patent,
secret processes and technical information, trademarks, tradenames, or other
similar rights owned by EATON, SUMITOMO or SEN, any Related Company or
Affiliated Company of EATON, SUMITOMO or SEN, which are the subject matter of
this Agreement or any of the Associated Agreements.
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Section 2. Encumbrance and Sale of Shares
- -----------------------------------------
EATON and SUMITOMO agree not to encumber nor to sell their shares in
SEN other than with the prior written consent of the other party or in
accordance with the terms of the Articles of Incorporation.
ARTICLE IX - NONDISCLOSURE OF INFORMATION
-----------------------------------------
Section 1. Secrecy
- ------------------
SUMITOMO and EATON each agree to keep strictly secret and confidential
and not to disclose to any third party, except to the extent that disclosures to
SEN may be required by (a) this Agreement, (b) the Associated Agreements annexed
hereto and (c) participation as a shareholder in SEN, any of the technical,
economic, financial or marketing information acquired from the other(s) or from
SEN, unless disclosure of such information is expressly permitted by this
Agreement or an Associated Agreement, required by law or permitted by
supplemental agreement of the parties hereto. To that end, without limiting the
generality of the foregoing provision, SUMITOMO and EATON agree to cause all
written materials relating to or containing such information obtained from the
other or from SEN, including all sketches, drawings, reports and notes, and all
copies, reproductions, reprints and translations, to be plainly marked to
indicate the secret and confidential nature thereof and to prevent unauthorized
use or reproduction thereof.
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Section 2. Use of Information
- -----------------------------
SUMITOMO and EATON agree that they shall not use any information
described in Section 1 of this Article IX and obtained from the other or SEN for
any purpose whatsoever except in a manner expressly provided for in this
Agreement, the Associated Agreements or as shareholders of SEN under the laws of
Japan.
Section 3. Survival of Obligations
- ----------------------------------
The obligations undertaken by SUMITOMO and EATON pursuant to this
Article IX shall not apply to any such information obtained from the other or
SEN which is or becomes published or otherwise generally available to the public
or which is, at the time of disclosure, in the possession or the party to which
the information is furnished, and such obligations shall, as so limited, survive
termination of this Agreement.
ARTICLE X - PAYMENTS
--------------------
Section 1. Currency
- -------------------
Except as otherwise provided in Section 1 of Article II hereof, any and
all payments to be made by SEN to EATON pursuant to this Agreement, or any of
the Associated Agreements shall be made in United States Dollars or such other
currency as may be specified by EATON, at banks designated by EATON. Conversion
between Japanese Yen and
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United States Dollars or other foreign currency shall be made at the exchange
rate of an authorized foreign exchange bank in Japan favourable to EATON
prevailing on the date of remittance.
Section 2. Taxes
- ----------------
All taxes under the laws of Japan required to be paid by SEN, SUMITOMO
and EATON, including all taxes imposed under the Income Tax Law and Corporation
Tax Law of Japan, shall be for the respective accounts of and paid by or on
behalf of SEN, SUMITOMO or EATON. SUMITOMO and EATON agree to furnish, or to
cause SEN to furnish, when available, to the appropriate party the official tax
receipt or other evidence issued by the Japanese tax authorities sufficient to
enable EATON and SUMITOMO, as the case may be, to support a claim for United
States, Japanese or other national income tax credit in respect of any sum
required under Japanese tax laws to be withheld by SEN for the account of EATON
or SUMITOMO.
ARTICLE XI - TERMINATION
------------------------
Section 1. Early Termination
- ----------------------------
In the event that the requisite validations and rulings under the
Foreign Exchange and Foreign Trade Control Law pursuant to Article II shall not
have been obtained within twelve (12) months following the date of execution
hereof, EATON may declare this Agreement, the
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Associated Agreements and all rights, duties and obligations of the parties,
except as they relate to those established by Article IX, to be null and void
AB INITIO upon giving SUMITOMO written notice of such declaration. Upon such
declaration, copies of all records, reports and other written information
resulting from this Agreement shall be made available by SUMITOMO to EATON
without charge to EATON.
Section 2. Default
- ------------------
In the event that any of the parties hereto should default in the
performance of any of the terms, conditions, obligations, undertakings,
covenants or liabilities set forth in this Agreement and such default shall not
have been remedied within ninety (90) days after written notice thereof from the
other party, such other party may terminate this Agreement and the Associated
Agreements, effective immediately by written notice to the defaulting party.
Section 3. Dissolution, Liquidation or Bankruptcy
- -------------------------------------------------
Either party may terminate this Agreement and the Associated Agreements
by written notice to the other party hereto in the event that such other party
shall be dissolved or liquidated or be declared bankrupt and its shares in SEN
thereby assigned to an individual or company other than a Related Company.
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Section 4. Survival of Obligation
- ---------------------------------
Termination of this Agreement and the Associated Agreements for any
cause shall not release either party from any other liability which at the time
of termination has already accrued to the other party, nor affect in any way the
survival of the rights, duties and obligations of either party provided for in
Article IX of this Agreement, provided that nothing in this Section 4 shall
affect, be construed to be or operate as a waiver of the right of the party
aggrieved by any breach of this Agreement to be compensated for any injury or
damage incurred before the time of termination resulting from a breach hereof.
ARTICLE XII - INTERPRETATION
----------------------------
Section 1. Governing Law
- ------------------------
Insofar as is consistent with the governmental laws of Japan, the
validity, construction and performance of this Agreement shall be governed by
and interpreted in accordance with the laws of the State of Ohio, United States
of America, and/or the Federal Laws of the United States in a like manner as an
agreement made and wholly to be performed in the State of Ohio.
Section 2. Language
- -------------------
This Agreement is in the English language, executed in duplicate
originals by the parties hereto. In the event that this Agreement is translated
into the Japanese or any
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other language, and any inconsistency or contradiction in meaning or
interpretation results therefrom, the English language version shall prevail and
be controlling as between the parties hereto.
Section 3. Headings
- -------------------
The headings to Articles and Sections of this Agreement are for
convenience only, do not form a part of this Agreement, and shall not in any way
affect the interpretation hereof.
Section 4. Construction and Amendment
- -------------------------------------
No oral explanation of or oral information relating to this Agreement
offered by either party hereto shall alter the meaning or interpretation of this
Agreement. No change in the terms hereof shall be binding on either party hereto
unless reduced to writing and duly executed by the parties.
ARTICLE XIII - ARBITRATION
--------------------------
Section 1. Arbitration
- ----------------------
Any and all disputes and differences pertaining to or arising out of
this Agreement or the breach thereof shall finally be settled by arbitration to
be held in Tokyo, Japan, if EATON shall demand arbitration, or in Cleveland,
Ohio, United States of America, if SUMITOMO or SEN shall demand arbitration.
Such arbitration proceedings shall proceed in accordance with the provisions of
the
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Japan-American Trade Arbitration Agreement of 1952, under the rules specified in
said agreement in effect upon the date that one party or SEN serves notice upon
the other or SEN of a demand for arbitration. The award rendered by the
arbitrator, shall be final, binding and enforceable by any court of competent
jurisdiction. The dispute shall be arbitrated by one arbitrator (who shall not
be a national of Japan or the United States of America) selected by mutual
agreement of the disputants; provided, however, that in the event the disputants
cannot agree upon an arbitrator within sixty (60) days following the demand for
an arbitrator, the arbitrator shall be appointed by the Chairman of the Japan
Commercial Arbitration Association, if arbitration is to be in Japan, or of the
American Arbitration Association, if arbitration is to be in the United States
of America.
ARTICLE XIV - MISCELLANEOUS
---------------------------
Section 1. Assignments
- ----------------------
Subject to such governmental approval as may be required by applicable
law then in effect, this Agreement shall inure to the benefit of and be binding
upon each of the parties hereto and their respective successors and assigns, but
it may not be voluntarily assigned in whole or in part by either party without
the prior written consent of the other party.
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Section 2. Notices
- ------------------
All notices and other communications required or permitted to be given
or made under this Agreement shall be given or made in writing dispatched by
registered airmail, postage prepaid, in any post office in the United States of
America or in Japan, as the case may be, addressed as follows:
If to SUMITOMO: Sumitomo Heavy Industries, Ltd.
2-1, Ohtemachi 2-chome
Chiyoda-ku, Tokyo 100, Japan
If to EATON: Office of the Secretary
Eaton Corporation
100 Erieview Plaza
Cleveland, Ohio 44114
U.S.A.
Any party may change its address for the purpose of this Section 2 of
Article XIV by notice to the other given in the manner set forth above.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
executed by their duly authorized representatives as of the day and year first
set forth above.
EATON CORPORATION
By: /s/ [signature illegible]
----------------------------------------
Title: President - Defense and Systems Group
--------------------------------------
ATTEST:
By: /s/ S. L. Sherlein
--------------------------
Title: Vice Pres. & Gen. Csl.
-----------------------
SUMITOMO HEAVY INDUSTRIES, LTD.
By: /s/ S. Gohde
----------------------------------------
Title: Executive Vice President
--------------------------------------
ATTEST:
By: /s/ [signature illegible]
------------------------------
General Manager
Title: Industrial Machinery & Plant Sales
------------------------------------
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AMENDMENT OF ORGANIZATION AGREEMENT
THIS AGREEMENT AMENDMENT is made as of the 1st day of April, 1983, by
and between EATON CORPORATION, a corporation organized and existing under the
laws of the State of Ohio, United States of America, having its principal place
of business at 100 Erieview Plaza, Cleveland, Ohio, U.S.A. (hereinafter referred
to as "EATON"), and SUMITOMO HEAVY INDUSTRIES, LTD., a corporation organized
and existing under the laws of Japan and having its principal place of business
at 2-1, Ohtemachi 2-chome, Chiyoda-ku, Tokyo 100, Japan (hereinafter referred to
as "SUMITOMO"),
WITNESSETH:
WHEREAS, SUMITOMO and EATON have entered into that certain Organization
Agreement, dated as of December 3, 1982, concerning SUMITOMO EATON NOVA
KABUSHIKI KAISHA (SUMITOMO EATON NOVA CORPORATION) (hereinafter referred to as
"SEN"); and
WHEREAS, SUMITOMO and EATON wish to amend the Organization Agreement to
provide that the annual accounting period of SEN shall end on March 31 of each
year, rather than December 31 of each year,
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NOW, THEREFORE, in consideration of the mutual agreements, promises and
undertakings hereinafter and other good and valuable consideration, the receipt
and sufficiency of which are hereby acknowledged, the parties hereto do hereby
agree as follows:
Section 1.
- ----------
SUMITOMO and EATON hereby agree that the first sentence of Article VII,
Section 4 of the Organization Agreement is hereby amended to provide that the
annual accounting period of SEN shall end on March 31 of each year, rather than
on December 31 of each year. It is further agreed that this amendment shall be
deemed controlling over any other express or implied references to the annual
accounting period of SEN that may exist in the Organization Agreement or in any
of the Associated Agreements or in the Articles of Incorporation or in the
By-Laws as those terms are defined in the Organization Agreement.
Section 2.
- ----------
SUMITOMO and EATON hereby agree that the amendment set forth in Section
1 above is the only amendment made hereby, and that the other terms and
conditions of the Organization Agreement remain unchanged.
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25
IN WITNESS WHEREOF, the parties hereto have caused this AMENDMENT OF
ORGANIZATION AGREEMENT to be executed by their duly authorized representatives
as of the day and year first set forth above.
EATON CORPORATION
By: /s/ [signature illegible]
------------------------------
Title: President
--------------------------
Defense and Systems Group
ATTEST:
By: /s/ L. E. Davis
------------------------------
Title: V. P. Eaton Japan Co. Ltd.
---------------------------
SUMITOMO HEAVY INDUSTRIES, LTD.
By: /s/ S. Gohde
------------------------------
Title: Executive Vice President
--------------------------
ATTEST:
By: F. Yamasaki
------------------------------
Title: General Manager
---------------------------
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26
SECOND AMENDMENT OF ORGANIZATION AGREEMENT
------------------------------------------
THIS AGREEMENT is made as of the ____ day of ____________, 1989, by and
between EATON CORPORATION, a corporation organized and existing under the laws
of the State of Ohio, United States of America, having its principal place of
business at Eaton Center, 1111 Superior Avenue, Cleveland, Ohio 44114, U.S.A.
(hereinafter referred to as "EATON"), and SUMITOMO HEAVY INDUSTRIES, LTD., a
corporation organized and existing under the laws of Japan with its principal
place of business located at 2-1 Ohtemachi 2-chome, Chiyoda-ku, Tokyo 100 Japan
(hereinafter referred to as "SUMITOMO").
WITNESSETH
WHEREAS, SUMITOMO and EATON have entered into that certain Organization
Agreement, dated as of 3 December 1982, concerning SUMITOMO EATON NOVA KABUSHIKI
KAISHA (SUMITOMO EATON NOVA CORPORATION) (hereinafter referred to as "SEN"), as
amended by that certain Amendment of Organization Agreement, dated as of 1 April
1983 (the Organization Agreement and the Amendment thereto are collectively
referred to hereinafter as the "Organization Agreement");
WHEREAS, SUMITOMO, EATON, and SEN, as applicable, have entered into
certain agreements pursuant to which SEN will manufacture, use, and sell
medium-current ion implantation products; and
WHEREAS, SUMITOMO and EATON wish to amend the Organization Agreement to
reflect the terms of said additional agreements.
27
NOW, THEREFORE, in consideration of the mutual agreements, promises,
and undertakings hereinafter and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree to amend the Organization Agreement as follows:
SECTION 1
- ---------
The term "Effective Date," in Article I, at page 3, is hereby amended
by deleting the period at the end of the present sentence and inserting the
following text at the end of the present sentence:
"listed in Article V, Section 1, hereof as items (a) through (i)
inclusive."
SECTION 2
- ---------
The definition of "Products" in Article I at page 3, is hereby amended
by deleting the period at the end of the present sentence, inserting a comma
therefor, and adding the following text immediately thereafter:
"as supplemented by the definition of "Products" contained in the
Associated Agreement annexed hereto entitled "License Agreement
(1989)"."
SECTION 3
- ---------
The definition of "Territory" in Article I, at page 4, is hereby
deleted in its entirety and the following text is hereby inserted therefor:
"Territory as used herein shall have the same meaning as the terms
"Exclusive Territory" and "Non-Exclusive Territory", as defined in the
Associated Agreement annexed hereto entitled "License Agreement," as
supplemented by the definition of "Territory" contained in the
Associated Agreement annexed hereto entitled "License Agreement
(1989)"."
-2-
28
SECTION 4
- ---------
Article II, Section 2, at page 5, is hereby amended by deleting the
phrase, "this Article II have been obtained," at the end of the present
sentence, and by inserting the following text therefor:
"this Article II, exclusive of such validations and approvals as may
be required in connection with the Associated Agreements referred to
herein in Article V, Section 1, as items (j) through (n) inclusive,
have been obtained."
SECTION 5
- ---------
Article V, Section 1, at page 10, is hereby amended by deleting the
period at the end of the sentence, following item (i), inserting a
semicolon therefor, and adding the following text immediately
thereafter:
"(j) "License Agreement (1989)";
(k) "Trademark Agreement (Eaton-1989)";
(l) "Trademark Agreement (Sumitomo-1989)";
(m) "Export Control Agreement (1989)";
(n) "Export Sales Agreement (1989)"."
SECTION 6
- ---------
Article VI, Section 2, at page 10, is hereby amended by deleting the
present period at the end of the sentence, inserting a comma therefor, and
adding the following text immediately thereafter:
"and the Associated Agreement annexed hereto entitled "Export Sales
Agreement (1989)"."
-3-
29
CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission]
SECTION 7
- ---------
Article VI, Section 4, at page 11, is hereby deleted in its entirety
and the following text is hereby inserted therefor:
"SEN will pay SUMITOMO a management assistance fee of [*] of SEN's Net
Sales, as defined in the License Agreement annexed hereto, of the
Products referred to in said License Agreement, for fifteen (15) years
from the incorporation of SEN. As to the Associated Agreements
referred to in Article V, Section 1 as items (j) through (n),
inclusive, SEN will pay SUMITOMO, pursuant to this Section 4 of
Article VI, a management assistance fee of [*] of SEN's Net Sales
attributable to those Products referred to in the License Agreement
(1989)."
SECTION 8
- ---------
SUMITOMO and EATON hereby agree that the amendments herein set forth
are the only amendments made hereby and that the other terms and conditions of
the ORGANIZATION AGREEMENT remain unchanged.
IN WITNESS WHEREOF, the parties hereto have caused this SECOND
AMENDMENT OF ORGANIZATION AGREEMENT to be executed by their duly authorized
representatives as of the day and year first set forth above.
ATTEST: EATON CORPORATION
By By
------------------------------- --------------------------------
Title Title
---------------------------- -----------------------------
ATTEST: SUMITOMO HEAVY INDUSTRIES, LTD.
By By
------------------------------- --------------------------------
Title Title
---------------------------- -----------------------------
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30
THIRD AMENDMENT OF ORGANIZATION AGREEMENT
-----------------------------------------
THIS AGREEMENT is made as of 16 January 1996, by and between EATON
CORPORATION, a corporation organized and existing under the laws of the State of
Ohio, United States of America, having its principal place of business at Eaton
Center, 1111 Superior Avenue, Cleveland, Ohio 44114, U.S.A. (hereinafter
referred to as "EATON"), and SUMITOMO HEAVY INDUSTRIES, LTD., a corporation
organized and existing under the laws of Japan with its principal place of
business located at 9-11, 5 Chome, Kitashinagawa, Shinagawa-ku, Tokyo 141, Japan
(hereinafter referred to as "SUMITOMO").
WITNESSETH
WHEREAS, SUMITOMO and EATON have entered into an Organization
Agreement, dated as of 3 December 1982, concerning SUMITOMO EATON NOVA KABUSHIKI
KAISHA (SUMITOMO EATON NOVA CORPORATION) (hereinafter referred to as "SEN"), as
amended by that certain Amendment of Organization Agreement, dated as of 1 April
1983, and as further amended by that certain Second Amendment of Organization
Agreement, dated as of 4 April 1990, (the Organization Agreement, Amendment,
and Second Amendment thereto are collectively referred to hereinafter as the
"Organization Agreement");
WHEREAS, SUMITOMO, EATON, and SEN, as applicable, have entered into
certain agreements pursuant to which SEN will manufacture, use, and sell ion
implantation products; and
WHEREAS, SUMITOMO and EATON wish to amend the Organization Agreement
to reflect the terms of said additional agreements.
31
NOW, THEREFORE, in consideration of the mutual agreements, promises,
and undertakings hereinafter and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto do
hereby agree to amend the Organization Agreement as follows:
SECTION 1
- ---------
The term "Effective Date," in Article I, at page 3, is hereby amended
by deleting the period at the end of the present sentence and inserting the
following text at the end of the present sentence:
"listed in Article V, Section 1, hereof as items (a) through (o)
inclusive."
SECTION 2
- ---------
The definition of "Products" in Article I at page 3, is hereby amended
by deleting the period at the end of the present sentence, inserting a comma
therefor, and adding the following text immediately thereafter:
"as supplemented by the definition of "Products" contained in the
Associated Agreement annexed hereto entitled "Master License
Agreement"."
SECTION 3
- ---------
The definition of "Territory" in Article I, at page 4, is hereby
deleted in its entirety and the following text is hereby inserted therefor:
"TERRITORY as used herein shall have the same meaning as the terms
"Exclusive Territory" and "Non-Exclusive
-2-
32
Territory", as defined in the Associated Agreement annexed hereto
entitled "Master License Agreement," as supplemented by the definition
of "Territory" contained in the Associated Agreement annexed hereto
entitled "Master License Agreement"."
SECTION 4
- ---------
Article II, Section 2, at page 5, is hereby amended by deleting the
phrase, "this Article II have been obtained," at the end of the present
sentence, and by inserting the following text therefor:
"this Article II, exclusive of such validations and approvals as may
be required in connection with the Associated Agreements referred to
herein in Article V, Section 1, as items (j) through (o) inclusive,
have been obtained."
SECTION 5
- ---------
Article V, Section 1, at page 10, is hereby amended by deleting the
existing items (j) through (n) at the end of the sentence, following item (i),
and inserting the following text:
"(j) "Master License Agreement";
(k) "Trademark Agreement (Eaton)";
(l) "Trademark Agreement (Sumitomo)";
(m) "Export Sales Agreement";
(n) "Marketing Agreement";
(o) "Sales Assistance Agreement"."
-3-
33
CONFIDENTIAL TREATMENT
*****[Deleted pursuant to a request for confidential treatment and filed
separately with the Securities and Exchange Commission]
SECTION 6
- ---------
Article VI, Section 2, at page 10, is hereby amended by deleting the
present period at the end of the sentence, inserting a comma therefor, and
adding the following text immediately thereafter:
"and the Associated Agreement annexed hereto entitled "Export Sales
Agreement"."
SECTION 7
- ---------
Article VI, Section 4, at page 11, is hereby deleted in its entirety
and the following text is hereby inserted therefor:
"SEN will pay SUMITOMO a management assistance fee of [*] of SEN's Net
Sales (as defined in the Master License Agreement) of those High
Current Products referred to in Appendix A of said Master License
Agreement until April 30, 1998 and [*] of such Net Sales of such High
Current Products until Termination (as defined in the Master License
Agreement) of said Master License Agreement. SEN will pay SUMITOMO
management assistance fee of [*] of SEN's Net Sales (as defined in the
Master Sales Agreement) of those Medium Current and High Energy
Products referred to in Appendix A of the Master License Agreement
from the effective date of said Master License Agreement until its
Termination (as defined in the Master License Agreement)."
SECTION 8
- ---------
SUMITOMO and EATON hereby agree that the amendments herein set forth
are the only amendments made hereby and that the other terms and conditions of
the ORGANIZATION AGREEMENT remain unchanged.
-4-
34
IN WITNESS WHEREOF, the parties hereto have caused this THIRD AMENDMENT
OF ORGANIZATION AGREEMENT to be executed by their duly authorized
representatives as of the day and year first set forth above.
ATTEST: EATON CORPORATION
By By
----------------------------- -------------------------------------
Title Title
-------------------------- ----------------------------------
ATTEST: SUMITOMO HEAVY INDUSTRIES, LTD.
By By
----------------------------- -------------------------------------
Title Title
-------------------------- ----------------------------------
-5-