EXHIBIT 10.1
AMENDMENT NO. 2 TO
UMBRELLA AGREEMENT
This Amendment No. 2 to the Umbrella Agreement dated as of June 14, 1999
("UMBRELLA AGREEMENT") is dated as of April 7, 2003 ("AMENDMENT NO. 2") and is
by and between The Goodyear Tire & Rubber Company, a company organized and
existing under the laws of the State of Ohio of the United States of America
("GOODYEAR") and Sumitomo Rubber Industries, Ltd., a company organized and
existing under the laws of Japan ("SRI").
WITNESSETH:
WHEREAS, the parties have agreed that notwithstanding the provisions of
Article 10.02 of the Umbrella Agreement, Goodyear shall be permitted to sell
some or all of its shares of Common Stock in SRI on the terms hereinafter
mentioned.
WHEREAS, the parties have agreed that, notwithstanding such provisions,
Goodyear shall be permitted, following any such sale, to purchase shares of
Common Stock in SRI.
WHEREAS, the parties have agreed to make a number of consequential
amendments to the Umbrella Agreement to allow such sales and purchases of shares
of Common Stock in SRI by Goodyear, and to govern their relationship following
any such sales.
NOW, THEREFORE, IT IS AGREED AS FOLLOWS:
1. AMENDMENT OF MAINTENANCE OF CROSS INVESTMENTS
1.1 The parties hereby amend Article 10.02 of the Umbrella Agreement so as
to delete the existing Article 10.02(a) in its entirety and to restate
such Article as follows:
"10.02 Maintenance of Cross Investments. (a) Subject to the provisions
of clauses (a)(i) to (a)(vii) and paragraphs (b) and (c) of this
Article 10.02 and so long as no Global Exit shall have occurred,
Goodyear shall not purchase, sell, or dispose of or otherwise transfer
(whether for cash or other consideration) its interest (including any
beneficial interest as defined under the 1934 Act), in any shares of
SRI Common Stock or other voting securities of SRI without the prior
written consent of SRI and SRI shall not purchase, sell, or dispose of
or otherwise transfer (whether for cash or other consideration) its
interest in any shares of Goodyear Common Stock or
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other voting securities of Goodyear without the prior written consent
of Goodyear; provided that:
(i) Goodyear may agree to sell, in one or more transactions or
instalments, its interest (including any beneficial interest
as defined under the 1934 Act), in any shares of SRI Common
Stock provided that any such sales are completed between 31
March 2003 and 30 June 2003 (inclusive);
(ii) following any sale by Goodyear of any interest in any shares
of SRI Common Stock pursuant to clause (a)(i) above, Goodyear
may in the period up to and including 30 June 2008 purchase
(by such method as may be agreed between the parties from time
to time), in one or more transactions or instalments, such
number of shares of SRI Common Stock as is necessary to
restore Goodyear's percentage interest in SRI's total issued
and outstanding shares of Common Stock (from time to time)
from the percentage interest following such sale or sales (the
"POST-SALE PERCENTAGE") to ten percent (10%) (the "ORIGINAL
PERCENTAGE");
(iii) if, by purchases made pursuant to clause (a)(ii) above,
Goodyear restores its percentage interest in SRI's total
issued and outstanding shares of Common Stock to the Original
Percentage, Goodyear may from time to time thereafter purchase
such shares of SRI's Common Stock as is necessary to maintain
Goodyear's percentage interest in SRI's total issued and
outstanding shares of Common Stock at the Original Percentage.
If Goodyear makes a purchase pursuant to this clause (a)(iii)
it shall promptly give written notice thereof to SRI;
(iv) notwithstanding any restriction imposed by the confidentiality
agreement between Goodyear and SRI dated 19 January 2003 (the
"CONFIDENTIALITY AGREEMENT"), following any sale by Goodyear
of any interest in any shares of SRI Common Stock pursuant to
clause (a)(i) above, upon 14 calendar days prior written
notice, SRI may (subject to clause (a)(v) below) sell its
interest (including any beneficial interest as defined under
the 1934 Act), in one or more transactions or installments, in
any shares of Goodyear Common Stock until the earlier of 30
June 2008 or such date as Goodyear restores its percentage
interest in SRI's total issued and outstanding shares of
Common Stock to the Original Percentage. If SRI makes a sale
pursuant to this clause (a)(iv) it shall promptly give written
notice thereof to Goodyear;
(v) SRI may only sell its interest in shares of Goodyear Common
Stock pursuant to clause (a)(iv) above to the extent such
interest to be sold does not reduce SRI's percentage interest
in Goodyear's total issued and outstanding shares of
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Common Stock as existed immediately following conversion of
the Goodyear Note by more than the fraction given by the
following calculation:
10 minus Post Sale Percentage
/
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(vi) notwithstanding any restriction imposed by the Confidentiality
Agreement, following any sale by SRI of any interest in any
shares of Goodyear Common Stock pursuant to clause (a)(iv)
above, SRI may in the period up to and including 30 June 2008
purchase (by such method as may be agreed between the parties
from time to time), in one or more transactions or
instalments, such number of shares of Goodyear Common Stock as
is necessary to restore SRI's percentage interest in
Goodyear's total issued and outstanding shares of Common Stock
(from time to time) to the same percentage interest as existed
immediately following conversion of the Goodyear Note. If, by
purchases made pursuant to clause (a)(ii) above, Goodyear
restores its percentage interest in SRI's total issued and
outstanding shares of Common Stock to the Original Percentage
on a date before 30 June 2008, SRI will endeavour to restore
its percentage interest in Goodyear's total issued and
outstanding shares of Common Stock (from time to time) to the
same percentage interest as existed immediately following
conversion of the Goodyear Note as soon as reasonably
practicable after such date; and
(vii) notwithstanding any restriction imposed by the Confidentiality
Agreement, SRI may from time to time purchase such shares of
Goodyear's Common Stock as is necessary to maintain SRI's
percentage interest in Goodyear's total issued and outstanding
shares of Common Stock as existed immediately following the
conversion of the Goodyear Note. If SRI makes a purchase
pursuant to this clause (a)(vii) it shall promptly give
written notice thereof to Goodyear."
1.2 The parties hereby amend Article 10.02 of the Umbrella Agreement so as
to delete Article 10.02(c) in its entirety and to restate such Article
as follows:
"(c) In the event SRI issues additional shares of its Common Stock and if,
as a result of such issuance, Goodyear's percentage interest in SRI
Common Stock is reduced, Goodyear shall be entitled to purchase, on the
open market or in negotiated private transactions, such additional
shares as shall allow it to obtain such number of shares of SRI Common
Stock as would increase its percentage shareholding in SRI to the
Original Percentage. SRI shall furnish to Goodyear (i) within 45 days
of the close of
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each calendar quarter, notice of the total number of issued and
outstanding shares of SRI Common Stock and (ii) promptly following
recommendation by the SRI Board of Directors of a date on which a
dividend on SRI Common Stock will be paid, but not later than fourteen
(14) days preceding such dividend payment date, notice of such dividend
payment date and of the total number of shares of SRI Common Stock (x)
issued and outstanding on the date of such recommendation and (y),
unless prohibited by law, projected to be issued and outstanding on the
forthcoming dividend payment date. In the event that Goodyear notifies
SRI that Goodyear is unable to purchase on the open market or in
negotiated private transactions, such additional shares as shall allow
it to maintain its shareholding at the Original Percentage, then SRI
shall, to the extent permitted by applicable law, at SRI's election,
either:
(i) issue to Goodyear at the then current market price such
additional shares as shall allow Goodyear to maintain its
shareholding at the Original Percentage; or
(ii) use its best efforts (but without the incurrence of
unreasonable cost or liability) to arrange for Goodyear to
purchase at the then current market price from a third party
such additional shares as shall allow Goodyear to maintain its
shareholding at the Original Percentage; or
(iii) use its best efforts (but without the incurrence of
unreasonable cost or liability) to take such other measures,
as shall allow Goodyear to maintain its shareholding at the
Original Percentage.
In addition, SRI shall promptly (and in any event within five working
days) upon a request from Goodyear, furnish Goodyear with the total
number of issued and outstanding shares of SRI Common Stock on the date
of such request.
The foregoing provisions of this Article 10.02(c) shall only apply:
(A) before the date of the first sale (if any) by Goodyear of any
interest in any shares of SRI Common Stock pursuant to clause
(a)(i) above; and
(B) after such time (being no later than 30 June 2008) as
Goodyear's percentage interest in any shares of SRI Common
Stock (from time to time) is restored to the Original
Percentage pursuant to purchases made in accordance with
clause (a)(ii) above."
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2. AMENDMENT TO GOODYEAR'S RIGHT TO NOMINATE SRI DIRECTOR
2.1 The parties hereby amend Article 10.03 of the Umbrella Agreement so as
to add, at the end of Article 10.03(a), the following:
"If the Alliance is terminated at any time pursuant to a Global Exit
Right, Goodyear shall procure that the director appointed pursuant to
this Article 10.03(a) shall resign from the SRI Board of Directors
(without compensation)."
2.2 The parties hereby amend Article 10.03 of the Umbrella Agreement so as
to delete Article 10.03(d) in its entirety and to restate such Article
as follows:
"(d) Following any sale by Goodyear of any interest in any shares of SRI
Common Stock pursuant to clause (a)(i) of Article 10.02 (as a
consequence of which Goodyear will own less than ten percent (10%) of
the total issued and outstanding shares of SRI Common Stock), SRI may,
until the earlier of 30 June 2008 and such time as Goodyear restores
its shareholding to ten percent (10%) of the total issued and
outstanding shares of SRI Common Stock (from time to time), at its sole
discretion, invite a Goodyear executive (or another person reasonably
satisfactory to SRI) as Goodyear may nominate to stand for election to
its Board of Directors (and SRI shall use its reasonable efforts (but
without the incurrence of unreasonable cost or liability) to ensure
such person will be elected to its Board of Directors (or any successor
governing board)). Following such person's appointment to the Board of
Directors paragraphs (b) and (c) of this Article 10.03 shall apply in
relation to such director.
If, at any time on or before 30 June 2008, Goodyear restores its
shareholding to ten percent (10%) of the total issued and outstanding
shares of SRI Common Stock (from time to time), this Article 10.03(d)
shall cease to have effect and the director appointed pursuant to this
Article 10.03(d) shall be deemed to have been appointed pursuant to
Article 10.03(a), which shall continue to apply thereafter.
If, by 30 June 2008, Goodyear has not restored its shareholding to ten
percent (10%) of the total issued and outstanding shares of SRI Common
Stock (from time to time), or, if the Alliance is terminated at any
time pursuant to a Global Exit Right, Goodyear shall procure that the
director appointed pursuant to this Article 10.03(d) shall resign from
the SRI Board of Directors (without compensation) and Article 10.03(a)
shall cease to apply."
2.3 The parties hereby amend Article 10.03 of the Umbrella Agreement so as
to add, at the end of Article 10.03(e), the following:
"The foregoing provisions of this Article 10.03(e) shall not apply from
the date of the first sale (if any) by Goodyear of any interest in any
shares of SRI Common Stock pursuant to clause (a)(i) of Article 10.02
until such time (if any) as Goodyear's
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percentage interest in any shares of SRI Common Stock (from time to
time) is restored to the Original Percentage pursuant to purchases made
in accordance with clause (a)(ii) of Article 10.02."
3. GENERAL
3.1 The parties hereby amend the Umbrella Agreement to give effect to the
provisions of this Amendment No. 2 but in all other respects the other
terms and conditions of the Umbrella Agreement shall continue without
change.
3.2 The parties hereby acknowledge that expressions used in this Amendment
No. 2 will have the same meanings as are ascribed thereto in the
Umbrella Agreement unless otherwise specifically defined herein.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment No. 2
to the Umbrella Agreement to be duly executed as of the day and year first above
written in this Amendment No. 2.
THE GOODYEAR TIRE & RUBBER COMPANY
By: /s/ Xxxxx X. Xxxxxx
-----------------------------------------
Xxxxx X. Xxxxxx
Title: Senior Vice President
Business Development and Integration
Attest: /s/ Xxxxxxx X. Xxxxxx
-------------------------------------
Xxxxxxx X. Xxxxxx
Assistant Secretary
SUMITOMO RUBBER INDUSTRIES, LTD.
By: /s/ Ryochi Sawada
-----------------------------------------
Ryochi Sawada
Title: Representative Director and
Executive Director
Attest: /s/ Xxxxxx Xxxxxxx
-------------------------------------
Xxxxxx Xxxxxxx
General Manager
Legal Department
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