Exhibit 10.1
SHARE SALE AGREEMENT
This Share Sale Agreement (this "Agreement") is made and entered into
as of the 30th day of August, 2004 by and between PREFORMED LINE PRODUCTS
COMPANY, a corporation duly organized and existing under the laws of the State
of Ohio, U. S. A, having its principal office at 000 Xxxx Xxxxx, Xxxxxxxxx, Xxxx
00000 U. S. A. (the "Seller"), FUJIKURA LTD., a corporation duly organized and
existing under the laws of Japan, having its principal office at 0-0-0 Xxxx,
Xxxx-xx, Xxxxx 000-0000, Xxxxx (hereinafter referred to as the "Purchaser"), and
JAPAN PLP CO., LTD., a corporation duly organized and existing under the laws of
Japan, having its principal office at 0-0-0 Xxxx, Xxxx-xx, Xxxxx 000-0000, Xxxxx
(the "Company").
WITNESSETH:
WHEREAS, the Seller owns thirty five thousand two hundred eighty
(35,280) shares in the Company, and the Seller desires to sell all of those
shares (the "Shares") to the Purchaser upon and subject to the terms and
conditions set forth below.
NOW, THEREFORE, the parties hereto agree as follows:
Article 1. Sale and Purchase of Shares
1.1 Subject to the terms and conditions set forth below, on the Closing
Date (as defined in Section 1.2 below), the Seller shall sell to the Purchaser
and the Purchaser shall purchase from the Seller the shares for the aggregate
purchase price (the "Price") of TWO HUNDRED FOURTEEN MILLION EIGHT HUNDRED
THOUSAND JAPANESE YEN (JPY214,800,000), which is JPY6,088.4354 per share.
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1.2 The consummation of the purchase and sale of the Shares
(hereinafter referred to as the "Closing") shall take place on September 28,
2004 (the "Closing Time") at the offices of the Purchaser, or such other time,
date and/or place as the parties hereto may agree in writing in advance. (The
date of the Closing is hereinafter referred to as the "Closing Date").
Article 2. Conditions to Closing
As conditions precedent to the Closing:
(a) all steps required by corporate law or regulations to be taken by
the Seller to authorize the sale of the Shares as contemplated
hereby shall have been duly and properly taken; and
(b) all steps required by corporate law or regulations to be taken by
the Purchaser to authorize the purchase of the Shares and the
payment of the Price as contemplated hereby shall have been duly
and properly taken.
Article 3. Closing Procedures
3.1 Subject to the (i) satisfaction of the foregoing conditions
precedent, (ii) compliance with all other requirements set forth herein, (iii)
payment of the Price, at or before the Closing Time, by the Purchaser by
remitting such in Japanese Yen in immediately available funds to the following
account:
Attn: Mizuho Corporate Bank Ltd.
Tokyo, Japan
SWIFT CODE: XXXXXXXX
F/A/O: Bank One, NA Chicago
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Account No.: 0000000
Ref: Acct Name/Acct Number: Preformed Line Products /1002283-1-01
(iv) the Purchaser's delivery of a SWIFT message to Bank One, NA Chicago ("Bank
One") as follows to advise Bank One that the payment set forth in clause (iii)
has been made:
Bank One, NA Chicago
Foreign Exchange Department, Attn: FX Services
Ref: Acct. Name A/C No.: Preformed Line Products/A/C # 1002283-1-01
Use Swift Code: XXXXXX00
at the Closing the Seller shall deliver to the Purchaser (v) the certificates of
the Shares, and (vi) the respective written resignations as director, executed
by Messrs. Xxxxxx X. Xxxxxxx and Xxxxxxx X. Xxxx.
3.2 Upon completion of the Closing the Purchaser, the Company, and the
Seller agree that:
(i) Pursuant to Article XV(a) of the Formation Agreement dated
April 18, 1966 between the Seller and the Purchaser (the "Formation Agreement"),
the obligations of the Seller under the Formation Agreement shall cease; and
each party, for itself and on behalf of its affiliates, and its and such
affiliates' respective officers, directors, employees, representatives, agents,
affiliates, legal counsel, successors, and assigns (the "Releasing Parties"),
shall release, dismiss, and discharge every other party, each such other party's
affiliates, and each such other party's and such affiliates' respective
officers, directors, employees, representatives, agents, affiliates, legal
counsel, successors, and assigns (the "Released Parties") from any and all
claims and actions which any of the Releasing Parties has or could have asserted
as of the date first above written against any of the Released Parties.
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(ii) The Know-How and Licensing Agreement dated March 23, 1967 and
any and all amendments thereof between the Seller and the Company (the "License
Agreement") shall terminate; provided, however, that (a) the confidentiality
obligations set forth in paragraph 10 of the License Agreement shall survive for
3 (three) years from the date of this Agreement and (b) the Company, Taiwan PLP
Co., Ltd. ("Taiwan PLP"), Nishi Nippon PLP Co., Ltd. ("NN PLP"), and Kyoei High
Opt Co., Ltd. ("Kyoei") (collectively "Licensees") shall have the right to
freely use the know-how that has been disclosed (under the License Agreement) to
the Company by the Seller or to Taiwan PLP, NN PLP or Kyoei by the Company,
subject only to the confidentiality obligations stipulated hereinabove. The
Licensees may, after imposing confidentiality obligations similar to those
stipulated in paragraph 10 of the License Agreement, disclose to affiliates of
the Licensees the know-how so disclosed by the Seller or the Company, as the
case may be. For the avoidance of doubt, the parties hereby specifically
confirmed that the parties hereto have agreed that the Seller and the Licensees
each have the right to make, use or sell helically-shaped products anywhere in
the world; provided, however, that subject to the stipulations in this Agreement
the Seller and Licensees shall, at all times, each be entitled to enforce
against the other any patent, trademarks or trade names of its own, if any. The
confidentiality obligations owed by the Licensees shall not be applicable to
information that is in or enters the public domain by any method other than a
breach of the confidentiality obligation owed by the Licensees.
(iii) The Company shall return to the Seller all drawings,
specifications, designs, layout plans, and all other documents of a technical
and confidential nature (including any and all copies and translations thereof
made by the Company) relating in any way to the License Agreement (including
without limitation PLP Material Specifications and Product Drawings,
Manufacturing Specifications, Machine Drawings, and all information, documents,
and materials relating in any way to paragraph 2 of the License Agreement) in
the possession of any of the Company, the Purchaser, Taiwan PLP, NN PLP,
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and Kyoei and which were furnished by the Seller.
(iv) Except to the extent expressly set forth above in Article
3.2(ii)(b), all licenses granted under the License Agreement (including without
limitation those set forth in paragraphs 3, 5(b), 7, and 9 of the License
Agreement and which shall include, without limitation, the trademarks and
non-expired patents set forth in the attached Exhibit 1 and all
third-party-developed-information that the Seller has licensed to the Company)
shall automatically cease and terminate, provided, however, that for the six (6)
month period following the Closing Date, the Company, Taiwan PLP, NN PLP and
Kyoei may use the trademarks set forth in Exhibit 1 without being obliged to pay
royalties and, provided further, that such use during such 6-month period shall
be limited to the distribution of those quantities of product literature and the
consumption of those quantities of product labels that existed as of the date
first above written.
(v) The permission set forth in paragraph 7(c) of the License
Agreement shall be revoked.
(vi) Not later than the date that falls six (6) months after the
Closing Date, the Purchaser shall cause the name of the Company (and the names
of the Company's affiliates, which affiliates shall include, without
limitation, Taiwan PLP, NN PLP, and Kyoei) to be amended such that no such name
includes any of the terms "PLP" or "Preformed".
(vii) Not later than the date that falls six (6) months after the
Closing Date, the Company shall cease (and shall procure that the Company's
affiliates (which affiliates shall include, without limitation, Taiwan PLP, NN
PLP, and Kyoei) shall cease) to use the Seller's corporate logo and, as the
case may be, the corporate logo of the Company and of Taiwan PLP.
Article 4. Representations and Warranties; Covenant; and Indemnity
4.1 Each of the parties hereto hereby, represents and warrants to the
others that as of the Closing Time it has obtained, or (in the case of any
authorization or approval which
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need not be obtained until after the Closing Time) it will obtain in a timely
fashion, all corporate, governmental and/or other authorizations and approvals
of whatsoever kind which may be required to be obtained to enable this Agreement
to be duly performed.
4.2 Except as expressly set forth otherwise herein, the Seller does not
make, and the Purchaser does not rely upon, any representation, warranty or
condition (express or implied) about, and the Seller shall have no liability or
responsibility to the Purchaser for, the Shares.
4.3 The Purchaser and the Company, for themselves and on behalf of
their affiliates, and their and such affiliates' respective officers, directors,
employees, representatives, agents, affiliates, legal counsel, successors, and
assigns (collectively, the "Purchaser Parties") shall, on a joint and several
basis, indemnify, defend, and hold harmless Xxx X. Xxxxxxx, Xxxxxx X. Xxxxxxx,
Xxxxxxx X. Xxxx, the Seller, the Seller's affiliates, and the Seller's, such
individuals', and such affiliates' respective officers, directors, employees,
representatives, agents, affiliates, legal counsel, successors, assigns,
personal representatives, and heirs of such individuals, the Seller, and the
Seller's affiliates (collectively, the "Seller Parties") from and against any
and all claims, losses, damages, and expenses (including without limitation
attorneys' fees) suffered by any Seller Party that relates in any way to any
claim that may be brought at any time after (and including) the date first above
written by a third party in connection with services rendered or not rendered to
the Company by persons nominated by the Seller as directors of the Company or
based on the fact that the Seller has been the shareholder of the Company.
4.4 The Seller shall indemnify, defend, and hold harmless the Purchaser
and the Company from and against any and all claims, losses, damages, and
expenses (including without limitation attorneys' fees) suffered by the
Purchaser or the Company that relates in any way to any claim that may be
brought at any time after (and including) the date first above written by any or
all of the Seller Parties based on the
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fact that some of the Seller Parties served as directors of the Company;
provided, however, that notwithstanding anything to the contrary in this Article
4.4, the Seller shall have no obligation under this Section 4.4 in respect of
any claim, loss, damage, and expense (including without limitation attorneys'
fees) that relates in any way to the
Purchaser Parties' obligations under Section 4.3.
Article 5. Expenses
The Purchaser shall bear expenses of remittance of the price to the
Seller.
Article 6. General Provisions
6.1 This Agreement constitutes the entire understanding between the
parties hereto pertaining to the subject matter hereof, and is made solely in
the English language.
6.2 This Agreement may be executed in three or more counterparts, each
of which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
6.3 This Agreement and the rights hereunder are nonassignable.
6.4 This Agreement may be amended or modified only in writing and only
when signed by the duly authorized representatives of each of the parties
hereto; provided, however, that the time and the place of the Closing may be
altered as provided in Section 1.2 above.
6.5 Nothing in this Agreement shall be construed to prohibit any party
from disclosing to any other person the existence, contents, or terms of this
Agreement. For the avoidance of doubt, and without prejudice to the generality
of the immediately preceding sentence, any party may make any disclosure that is
required by law, regulation, ordinance, court order, or any rule of any stock
exchange.
6.6 Each party agrees to maintain a friendly relationship among all the
parties, including each party's respective affiliates, which relationship shall
include the exchange of
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business information and the supply of each party's products on a case by case
basis under commercially reasonable terms.
6.7 This Agreement shall be governed by and interpreted in accordance
with the laws of Japan, and the Tokyo District Court shall have exclusive
jurisdiction over any disputes which may arise in relation to it.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed by their duly authorized representatives as of the day and year
first above written.
Seller: Purchaser:
Preformed Line Products Company: Fujikura Ltd.
By: /s/ XXXX X. XXXXX By: /s/ XXXXXXXXX XXX
-------------------------- -------------------------------
Name: Xxxx X. Xxxxx Name: Xxxxxxxxx Xxx
Title: Vice President Finance Title: Managing Director
Seller: Company:
Preformed Line Products Company: Japan PLP Co., Ltd.:
By: /s/ XXXXXXX X. XXXX By: /s/ XXXXX XXXXXX
-------------------------- -------------------------------
Name: Xxxxxxx X. Xxxx Name: Xxxxx Xxxxxx
Title: Vice President, Title: President
International Operations
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EXHIBIT 1
PATENTS AND TRADEMARKS
JAPAN-PLP TRADEMARKS
XXXX REG. NO. SERIAL NO.
---- --------- ----------
PLP and Design
(2 circles) 1,112,389 74,298
PLP and Design
(1 circle) 1,251,906 224614/86
ARMOR-GRIP 613866 3263/1962
ARMORGRIP 752160 27658/60
GUYGRIP 901,874 27660/60
GUY-GRIP 643,548 3266/62
GUY-GRIP 613,867 3265/62
AGS (work xxxx) 645,008 11823/74
PREFORMED
(word xxxx) 601,757 27659
PREFORMED
(word xxxx) 624,436 3262/62
PREFORMED
(word xxxx) 613,865 3261/62
COYOTE 4383561 38869/1998
TAIWAN TRADEMARKS
XXXX REG. NO. SERIAL NO.
---- --------- ------------
PLP and Design
(2 circles) 579,625 (81) 34,954
PLP and Design
(2 circles) 583,918 (81) 34,955
GUY-GRIP 583,917 (81) 34,951
PARROT-XXXX 579,624 (81) 34,952
PREFORMED
(word xxxx) 579,621 (81) 34,947
PREFORMED
(word xxxx) 583,916 (81) 34,948
END OF EXHIBIT 1
