EXHIBIT 10.34
December 7, 1992
SUPPLEMENTAL FORMATION AGREEMENT
THIS AGREEMENT, made as of the 7th day of December 1992 between
NISHIKAWA RUBBER CO., LTD., a corporation organized under the laws of Japan and
having its principal office in Hiroshima, Japan (hereinafter called
"Nishikawa"), and THE STANDARD PRODUCTS COMPANY, a corporation organized under
the laws of the State of Ohio, United States of America, and having its
principal office in Cleveland, Ohio (hereinafter called "Standard"),
WITNESS AS FOLLOWS:
WHEREAS, Nishikawa and Standard executed on October 9, 1986 a Formation
Agreement relating to the organization and operation of an Indiana corporation
to be known as Nishikawa Standard Company and owned 60% by Nishikawa and 40% by
Standard (the "Formation Agreement"); and
WHEREAS, Nishikawa and Standard subsequently agreed that Nishikawa
Standard Company should be reorganized as a general partnership and caused to be
established on March 23, 1989 a Delaware general partnership as evidenced by a
Partnership Agreement (the "Partnership Agreement"), which on March 31, 1989
pursuant to the terms of an Asset Purchase Agreement acquired substantially all
of the assets and assumed substantially all of the liabilities of the Indiana
corporation known as Nishikawa Standard Company (the Delaware general
partnership is hereinafter referred to as "NISCO"); and
WHEREAS, Nishikawa of America, Inc., a Delaware corporation wholly
owned by Nishikawa presently owns a 60% partnership capital interest in XXXXX
and XXXXX Holding Company, a Delaware corporation wholly owned by Standard, owns
a 40% partnership capital interest in XXXXX; and
WHEREAS, the partnership capital of XXXXX was originally established in
the Partnership Agreement at $25,000,000, which capital was increased by an
amendment to the Partnership Agreement dated November 1, 1990 ("Amendment No.
1") to $28,500,000; and
WHEREAS, Amendment No. 1 granted to the Policy Committee authority to
further increase XXXXX'x capitalization to $30,000,000, which increase was
approved by the Policy Committee by action taken on March 20, 1991; and
WHEREAS, the parties agreed on July 31, 1992 to increase the capital of
XXXXX to $32,000,000 and have contributed to XXXXX the cash required, although a
formal amendment to the Partnership Agreement has not yet been executed; and
WHEREAS, by this agreement the parties have agreed to further increase
the capital of XXXXX to an aggregate of $38,400,000 and to authorize a further
increase in capital up to $41,400,000.
WHEREAS, XXXXX has been advised by Ford Motor Company, a substantial
customer, that products now being produced by XXXXX for Ford and additional Ford
products scheduled for future production by XXXXX over the next several years
will be removed from XXXXX and awarded to another supplier as long as XXXXX is
controlled by a Japan based manufacturer, i.e., Nishikawa; and
WHEREAS, the parties have agreed that the partnership interest of
Standard held by XXXXX Holding, Inc. should be increased to 50%, so that each
party will have an equal equitable interest, and that, subject to certain
limitations, Standard will be in primary charge of overall management of XXXXX
for at least five years, as hereinafter provided; and
WHEREAS, as a result of such change in percentage of ownership and of
management, as well as the parties' experience in operating XXXXX and its
predecessor
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corporation for the past six years, the parties hereto have agreed
that certain matters relating to the management and operation of XXXXX as set
forth in the Formation Agreement should be revised or clarified, all as
hereinafter provided.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and intending to be legally bound hereby, the parties hereto, who are
hereinafter jointly called "the partners", hereby agree as follows:
1. Overall Philosophy.
1.1 During the period when it owned 60% of NISCO, Xxxxxxxxx
assumed a responsibility and fully supported the growth of XXXXX. To enhance
customer relationships with United States automobile manufacturers, particularly
Ford Motor Company, the parties are in agreement that equal ownership of XXXXX
is now essential. The advent of 50-50 ownership creates a different relationship
between the partners.
1.2 Standard recognizes that, as an equal partner, its obligation
to assist and support XXXXX has increased to a level equal to that of Nishikawa.
With equal ownership it is also appropriate that neither partner be obliged to
financially subsidize XXXXX; instead there should be an effort at equalization
and normalization so that each of the partners is fairly reimbursed for any
significant expenditure made by it on behalf of XXXXX. Further, it remains the
long-term goal of XXXXX to be a complete "stand alone" operation as stated in
Paragraph 6.4 of the Formation Agreement.
1.3 It is to the best interests of both Nishikawa and Standard
that XXXXX emerge as a successful and profitable entity. The partners have
agreed that for the next five years Standard shall be primarily in charge of
overall management of XXXXX, subject to certain limitations as subsequently
provided. Nevertheless, the partners have also agreed that they will jointly
cooperate and use their experience and expertise, in a spirit of friendship and
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unity, to make XXXXX a solid and profitable company while simultaneously seeking
to reduce the cost of parent company support. Such mutual cooperation relates to
all aspects of XXXXX'x operations including technology, research and
development, sales, production, purchasing, finance and administration.
1.4 The partners believe it is in the best interests of XXXXX to
serve both Japanese transplant and domestic automobile manufacturers and that
XXXXX should strive to balance its sales evenly between these two types of
customers.
1.5 In order to achieve the goals set forth above, the partners
have agreed that continued growth of XXXXX should be controlled as contemplated
by this Agreement.
2. Increase in Capital.
2.1 As noted above, the present partnership capital of XXXXX is
$32 million, of which Nishikawa through Nishikawa of America has contributed
$19.2 million and Standard through XXXXX Holding Company has contributed $12.8.
To bring its partnership equity to 48.10%, Standard agrees promptly after
execution of this agreement to contribute through XXXXX Holding Company $6.4
million to the partnership capital of XXXXX, bringing XXXXX'x total capital to
$38.4 million.
2.2 XXXXX has been awarded by Ford Motor Company contracts for
future production which will require establishment of a third plant. In
anticipation of the need for further capital, the partners have agreed to
authorize the Policy Committee to call from time to time for an increase in the
capital of XXXXX to $41,400,000. The partners will subsequently determine how
the remainder of the cost of the third plant will be financed.
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3. Purchase of 1.9% Partnership Interest.
3.1 Standard agrees promptly after the execution of this Agreement
to cause XXXXX Holding Company to purchase from Nishikawa of America a 1.90%
equity interest in XXXXX at a price of $1,500,000, and Nishikawa agrees to cause
Nishikawa of America to sell such 1.90% interest at such price.
3.2 Section 3.1 "Capital Contributions" of the Partnership
Agreement shall be amended to reflect the matters set forth in subparagraphs
2.1, 2.2 and 3.1 above. In addition, all references in the Partnership Agreement
to "60%" and "40%" shall be changed to "50%."
4. Change in Policy Committee.
4.1 In view of the fact that Nishikawa and Standard are to become
equal partners in XXXXX, it has been agreed that the Policy Committee should be
reduced to six members and that both Nishikawa and Standard should designate
three members of the Policy Committee. They have also agreed that the Chairman
of the Policy Committee, who pursuant co the provisions of Article IV, Section 1
of the Bylaws of the Policy Committee shall be the Chief Executive Officer of
the partnership and shall preside at all meetings of the Policy Committee,
should have a second or casting vote. Section 5.1 of the Partnership Agreement
shall be revised accordingly. In addition, Section 9.4 of the Partnership
Agreement shall designate the partner represented by the Chairman of the Policy
Committee as the "Tax Matters" partner, provided that XXXXX'x current
independent accounting firm shall not be changed without the consent of both
partners.
4.2 The partners have agreed that for the five-year period
beginning with the execution of this agreement Standard shall be entitled to
designate one of its Policy Committee representatives as the Chairman of the
Policy Committee of XXXXX. Standard's
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initial designee as Chairman is Xxxxxxxx X. Xxxxxxxx. If for any reason Xx.
Xxxxxxxx is unable to serve for the full five-year term, his designated
successor shall be subject to the approval of Nishikawa.
4.3 The partners have also agreed that the right to designate the
Chairman of the Policy Committee will basically be provided to each party for
five years alternatively. At the end of the five-year period referred to in
subparagraph 4.2 above, the partners shall discuss in good faith whether
Standard should continue to be authorized to designate the Chairman of XXXXX or
whether the Chairman shall be designated by Nishikawa. In deciding this issue,
the partners will consider, inter alia, the following factors:
(i) The position of Ford Motor Company at that time regarding
purchases from Japanese-controlled parts suppliers and the significance
of Ford as a customer of XXXXX. If approximately half of XXXXX'x
business is at that time with Ford and/or other traditional North
American automakers, then the partners shall favorably consider that
Standard continue to designate the Chairman unless Ford has changed its
policy as to Japanese-controlled parts suppliers.
(ii) XXXXX'x financial success, or lack thereof, during the
five-year period referred to above.
If after consideration of the foregoing factors and of all other factors which
either partner may consider relevant in determining whether the right to appoint
the Chairman of XXXXX should remain with Standard or pass to Nishikawa, no
factor is controlling and the partners are unable in good faith to reach
agreement on the matter, Nishikawa shall have the right to designate the
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Chairman of the Policy Committee of XXXXX for the next ensuing five-year period,
provided that the designated representative of Nishikawa shall be subject to the
approval of Standard.
4.4 During the five-year period referred to in subparagraph 4.2
above and for any additional period in which Standard is entitled to designate
the Chairman of the Policy Committee, Nishikawa shall be entitled to designate
one of its Policy Committee representatives as the President of XXXXX, who,
pursuant to Article IV, Section 2 of the Bylaws, shall serve as its Chief
Operating Officer. Nishikawa's initial designee as President is Xxxxxx Xxxxxxx.
If for any reason Xx. Xxxxxxx is unable to serve for such period, his designated
successor shall be subject to the approval of Standard.
4.5 During any period in which Nishikawa is entitled to designate
the Chairman of the Policy Committee, Standard shall be entitled to designate
the President of XXXXX under the same conditions, mutatis mutandis, set forth in
Section 4.4 above.
5. Limits on Authority of Chairman of Policy Committee.
5.1 During the period when one partner has the right to designate
the Chairman of the Policy Committee and is therefore in primary charge of the
overall management of XXXXX, the following limitations will apply to the second
or "casting" vote granted to the Chairman of the Policy Committee:
(a) The Chairman shall not exercise his second or casting vote:
(i) to discharge the President of XXXXX (so long as such
President was designated by the other partner from one of its
representatives on the Policy Committee);
(ii) to amend the Bylaws of the partnership;
(iii) to approve borrowing from banks or other third parties
beyond the borrowings in place at the time this agreement is executed;
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(iv) to license to anyone any of XXXXX'x technical
information.
(v) to determine whether to accept an order and to determine
pricing for an order.
(b) On matters other than those specified in subparagraph (a)
above, if the Chairman exercises such casting vote and the Policy Committee
representatives of the other partner (i.e., the partner which did not
designate the Chairman) request a review, the action encompassed by such
casting vote shall not take effect until the matter is reviewed in
face-to-face discussions between top management of Nishikawa and Standard,
during which discussions every effort will be made to reach an agreement to
resolve the matter to the satisfaction of both parties.
5.2 The partners acknowledge that neither the Chairman nor the
Policy Committee as a whole can amend the Partnership Agreement. The Partnership
Agreement can be amended only by a writing signed by both partners. It is
further understood that since the Partnership Agreement establishes the equity
capital of the partnership, the equity capital of XXXXX cannot be increased
beyond the amount provided for in this Agreement without the approval of both
partners.
6. Services Furnished to XXXXX.
6.1 The partners confirm that Sections 4.1 and 4.2 of the
Formation Agreement remain appropriate. However, it is deemed advisable to
clarify herein how those sections should be applied in practice.
6.2 Effective upon the execution of this Agreement, or at such
later date as may be mutually agreed, when either partner is required to expend
substantial design and development efforts on products to be manufactured by
XXXXX, such partner shall be
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compensated for its cost in performing such services through a cash payment
and/or a mutually agreed royalty. As used in the preceding sentence "cost" means
such partner's hourly salary cost (including fringe benefits) for employees of
such partner working on the design and development project, plus any material
and out-of-pocket expenses reasonably incurred by such partner.
6.3 Whenever employees of Nishikawa or Standard (other than
executive officers) are required to spend significant time on matters other than
those specifically described in 6.2 above but which are solely for the benefit
of XXXXX, the direct cost (as defined in 6.2 above) of such efforts will also be
billed to NISCO. Nishikawa and Standard will continue to furnish XXXXX normal
and routine technical and business assistance without charge.
6.4 Detailed statements for services described in paragraphs 6.2
and 6.3 above shall be promptly submitted to XXXXX on a monthly basis, with a
copy furnished by XXXXX to the partner not invoicing such services.
6.5 XXXXX shall reimburse Nishikawa and Standard for basic salary,
fringe benefits and travel and, in the case of short-term employees, living
expenses, of their respective employees who are transferred on either a short or
long term basis to XXXXX. However, the respective partners will be directly
responsible, and not seek reimbursement from XXXXX, for bonuses and similar
payments which the partners elect to award to such transferred employees, since
such bonuses are deemed to be made for the benefit of the partner's long term
relationship with its transferred employee.
6.6 The partners agree to discuss in good faith the fairness of
requests by either party for reimbursement from XXXXX of payments not
specifically described in paragraph 6.5 above which are incurred by the partners
in respect of their transferred employees.
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6.7 A renewed effort will be made to reduce the number of
"trainers" sent from Japan on a temporary basis to train local employees of
XXXXX
6.8 At the present time no technology fee or royalty is being
charged XXXXX by Xxxxxxxxx because, while fees are charged for the design of
specific products, the manufacturing process of XXXXX uses Nishikawa existing
technology. Nishikawa and Standard reserve the right to request in the future a
fee or royalty for new technology as contemplated by the last sentence of
Paragraph 4.1 of the Formation Agreement.
7. Purchases from Nishikawa and Standard.
7.1 The partners confirm that Section 5 of the Formation Agreement
remains appropriate. However, it is deemed advisable to clarify herein how those
sections should be applied in practice.
7.2 XXXXX (along with Nishikawa) is a participant in Standard's
worldwide purchasing group and as such is entitled to receive the full benefit
of any price reduction in raw materials or other products which may result from
these joint purchasing efforts. XXXXX is also entitled to directly benefit from
Standard's specially bargained volume discounts for computer hardware and
software, and any similar purchasing programs developed in the future by either
Standard or Nishikawa. No handling fee or commission will be charged XXXXX under
such group purchasing arrangements so long as the raw materials or other
products are shipped directly to and paid for by XXXXX.
7.3 While direct purchasing by XXXXX is in all cases encouraged,
in the event it is necessary for Nishikawa or Standard to purchase equipment or
materials on behalf of XXXXX, the handling fee for the transaction shall not
exceed 5.05% plus actual shipping costs. To comply with Section 5.2 of the
Formation Agreement, XXXXX shall furnish to the other partner a copy of each
handling fee invoiced to XXXXX by a partner.
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7.4 For materials or products to which Standard has added value,
as exemplified by "master batch" furnished XXXXX by Xxxxxx and "U-COAT"
furnished XXXXX by Standard's Rocky Mount plant, the parties confirm that
Section 5.3 of the Formation Agreement remains applicable. If any materials or
products to which Nishikawa has added value are sold to XXXXX, the same pricing
formula shall be applicable.
8. Expansion of XXXXX; License to Standard.
8.1 The partners agree that, unless they subsequently decide
otherwise, XXXXX'x production capacity shall not be expanded during the next
five years beyond that already planned for business currently booked or
anticipated except to the extent such expansion is financed with funds generated
by XXXXX'x internal operations.
8.2 In view of the limitation set forth in Section 8.1 above and
in recognition of the need from time to time for Standard to offer to its United
States OEM customers a complete line of automotive sealing products, including
sponge and multi-durometer extruded and molded rubber products, Nishikawa agrees
that, if a customer opportunity arises with one of Standard's United States OEM
customers which cannot be satisfied through XXXXX, Xxxxxxxxx will provide
Standard an appropriate license, as agreed by Nishikawa, to use Nishikawa's
technology in the United States. Such license will be modeled after the present
agreements between Nishikawa and Standard Products (Canada) Ltd. and Silent
Channel Ltd., with such modifications as Nishikawa and Standard may deem
appropriate to make such license applicable to the United States market.
9. Nishikawa of America Engineering Unit.
9.1 Standard has been advised by Nishikawa that it intends to
establish through Nishikawa of America, Inc. ("NOA") an engineering unit which
will be staffed with
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permanent and temporary engineers transferred from Hiroshima. Eiso Tamaki will
serve initially as President.
9.2 The basic function of the NOA engineering unit will be to
furnish engineering services to Nishikawa, NISCO and Standard and the
subsidiaries of Standard which Nishikawa has licensed, as well as to observe
first hand automotive engineering developments in the United. States at both
Japanese transplant and domestic OEMs. It is contemplated that some initial
design and development work will be performed by this unit.
9.3 In appropriate cases the NOA engineering unit may also furnish
contract engineering services to third parties; however, Nishikawa has assured
Standard that no such engineering services will be furnished a third party which
could have an adverse effect, directly or indirectly, on XXXXX, Standard or the
subsidiaries of Standard which Nishikawa has licensed. The engineering unit will
not be engaged in commercial manufacture of automotive parts, although it may
engage in experimental production.
9.4 Any design or development work performed by the NOA unit on
behalf of XXXXX will be billed to XXXXX pursuant to the provisions of Section
6.1 above.
9.5 Space will be made available for the NOA engineering unit at
Standard's Dearborn facility under lease terms which are to be mutually agreed.
Nishikawa's targeted effective date is January 1993, although there may be some
delay.
10. Technical Cooperation.
10.1 The partners agree to establish a Technological Exchange
Committee whose function shall be to collect, distribute and coordinate
technical and marketing data among Nishikawa, NOA, Standard and Standard's
subsidiaries.
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11. Documents Required to Implement this Agreement.
11.1 The partners shall execute an appropriate "Amendment No. 2"
to the Partnership Agreement to incorporate those matters agreed to herein which
customarily appear in a partnership agreement. They shall also execute such
further supplemental letters and documents as they may deem necessary fully to
implement the agreements contained herein.
12. Consolidation of Financial Statements.
12.1 If at some future time either Standard or Nishikawa wish to
discuss consolidating XXXXX'x financial statements, the partners will consider
in good faith such a proposal.
13. Non-Substantive Changes to This Agreement.
13.1 The partners reserve the right to request non-substantive
changes to this Agreement and/or the supplemental documentation referred to in
Section 11 above to reflect such advice as the partners may receive from their
respective tax, accounting and legal advisors. In the event the terms of this
Agreement create problems in obtaining appropriate visas for Japanese citizens
who are or have been employed by Nishikawa and are needed as employees of XXXXX,
the parties agree to work together to resolve such problems for the benefit of
XXXXX.
14. Effect of This Agreement.
14.1 In all other respects the Formation Agreement shall remain in
force to the extent it relates to the continuing business, rather than the
initial formation, of XXXXX. To the extent any provision of the Formation
Agreement is inconsistent with this Agreement, this Agreement shall control. To
the extent any provision of this Agreement is inconsistent with the Partnership
Agreement as amended from time to time, this Agreement shall control and the
Partnership Agreement shall be amended to conform to this Agreement. Where there
is no specific provision in any of the foregoing documents and there is a
question as to the intention of
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the partners, the spirit expressed basically in Article I, "Overall Philosophy"
of this Supplemental Formation Agreement shall control.
