EXHIBIT 10.1
JOINT VENTURE AGREEMENT
-----------------------
THIS AGREEMENT entered into the 23 day of May, 1988 by and among STAAR
Surgical Company, a corporation organized and existing under the laws of the
State of Delaware, with head office at 0000 Xxxxxx Xxxxxx, Xxxxxxxx, Xxxxxxxxxx
00000, X.X.X. (hereinafter referred to as "STAAR"), Canon Inc., a corporation
organized and existing under the laws of Japan, with head office at 00-0,
Xxxxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx, Xxxxx (hereinafter referred to as "CANON")
and Canon Sales Co., Inc., a corporation organized and existing under the laws
of Japan, with head office at 00-00, Xxxx 0-xxxxx, Xxxxxx-xx, Xxxxx, Xxxxx
(hereinafter referred to as "CANON SALES").
WITNESSETH:
WHEREAS, STAAR, CANON and CANON SALES desire to form a new company which will
engage in the business of manufacturing in Japan and selling in Japan and other
countries certain intraocular lenses and other products.
NOW, THEREFORE, in consideration of the mutual promises herein contained it is
agreed among the parties hereto as follows:
1. Formation of New Company
------------------------
1.1 Formation and purpose
By June 1, 1988 or as soon thereafter as is practicable, a Japanese
joint stock company (Kabushiki Kaisha) shall be formed which shall have
as its principal purpose the design, manufacture and sale in Japan of
intraocular lenses, surgical packs, phaco emulsification machines and
ophthalmic drugs and other medical products (hereinafter referred to as
the "New Company"). Unless hereafter approved by the shareholders of
the New Company, the New Company shall not market directly its
products. Instead, it is the intention of the parties hereto that the
New Company shall market its products worldwide through CANON, CANON
SALES, their subsidiaries and/or STAAR or such other distributors as
the Board of Directors of the New Company may approve. The terms of any
----------------
such distribution arrangement shall be subject to the unanimous
---------------------------------------------------------------
approval of the Board of Directors of the New Company.
-----------------------------------------------------
1.2 Name
The name of the New Company shall be Canon Staar Kabushiki Kaisha (in
English, Canon Staar Co., Inc.) or
such other name as is agreed to by resolution of the shareholder.
1.3 Articles of Incorporation
The Articles of Incorporation of the New Company to be adopted at the
time of formation shall be, in form and in substance, substantially
identical to those attached hereto as Exhibit A, provided that the
original copies of the Articles of Incorporation of the New Company
shall be prepared in the Japanese language.
2. Capitalization
--------------
2.1 Initial Capital
The New Company shall have an authorized capital of one billion
(1,000,000,000) Japanese Yen consisting of twenty thousand (20,000)
------------------------
shares of voting common stock, having a par value of fifty thousand
-----------------------------
(50,000) Japanese Yen each. The total number of shares to be issued by
------------------------------------------
the New Company at the time of formation shall be seven thousand and
--------------------------------------------------------------------
five hundred (7,500) shares. The shares to be issued at the time of
---------------------------
formation shall be subscribed to and paid for in cash by the below-
mentioned parties as follows (the terms and conditions of the
subscriptions, other than those provided by this Agreement, shall be
determined by a separate agreement of all the parties hereto.):
Number of Shares Subscription Amount
---------------- -------------------
STAAR 3,750 shares Yen 187,500,000
CANON 1,875 shares Yen 93,750,000
CANON SALES 1,875 shares Yen 93,750,000
The subscription by each party of the relevant shares of the New
Company shall be made on the condition that the Notification concerning
Domestic Direct Investment to be filed by STAAR with respect to the
shares of the New Company to be subscribed by STAAR as aforesaid has
been filed with and duly accepted by the Japanese Government under the
Foreign Exchange and Foreign Trade Control Law and STAAR's acquisition
of such shares has been duly authorized thereunder.
2.2 Promoters
It is understood and agreed that CANON shall nominate seven (7)
promoters including CANON for the purpose of the formation of the New
Company (as required by Japanese law) and that all shares subscribed
for by such promoters other than CANON immediately after the formation
of the New Company.
3. Management
----------
-2-
3.1 Board of Directors
The New Company will have three (3) directors on the Board of
Directors, one of whom shall be appointed by STAAR, one by CANON and
one by CANON SALES respectively. Initially the New Company shall have
a President, an Executive Vice President and another Director with
specific titles. All of them shall be representative directors with
authority to represent the New Company. The President shall be
designated by STAAR, and the Executive Vice President and the Director
with specific titles shall be designated by CANON and CANON SALES. It
is understood that pursuant to Japanese law, no remuneration shall be
paid to the directors of the New Company unless remuneration is
authorized by the shareholders of the New Company.
3.2 Statutory Auditor
Upon its formation, the New Company will have one (1) statutory
auditor who shall be designated by CANON and CANON SALES. It is
understood that pursuant to Japanese law, no remuneration shall be
paid to the statutory auditor of the New Company unless remuneration
is authorized by the shareholders of the New Company.
3.3 Independent Auditors
The New Company's independent auditors shall be an international
independent accountant firm having an office in Tokyo, Japan, which
shall conduct audits in accordance with generally accepted auditing
standards. Neither STAAR, CANON nor CANON SALES should have any
obligation to pay said auditing firm.
3.4 Board of Director's Decisions
In addition to the matters provided by the Japanese Commercial Code
and the matter set forth in the Section 1.1, the following important
items concerning the management and the business operation of the New
Company shall be decided by the Board of Directors of the New Company,
provided that the below-mentioned (a), (d), (e) and (f) shall require
unanimous approval of the Board of Directors of the New Company.
(a) Appointment or removal of the position of President,
Executive Vice President or other Directors with
specific titles;
(b) Expansion or important changes of the New Company's
facilities, and manufacture of new products;
(c) Investment to or advance of a new business (including
establishment of a subsidiary or participation in the
management of other businesses than that handle by
the New Company);
(d) Acquisition or disposal of assets of which value exceed 20% of
total book value ^^ all the New Company's assets per single
transaction;
(e) Granting of any mortgage, pledge, charge, or encumbrance in
respect of any part of the assets or legal property or contractual
rights of the New Company in case such part exceeds 20 % of total
book value of all the New Company's assets, or entering into any
agreement to do so;
(f) Borrowing in the principal amount of more than 20 % of total book
value of all the New Company's assets per single borrowing;
(g) Guarantee of any indebtedness owed by any third party;
(h) Acquisition, disposal or licensing of industrial property right or
its license;
(i) Organization of the New Company, salary payment policy of the New
Company, and personnel matters regarding key personnel of the New
Company;
(j) Determination of a basic policy concerning manufacture or sales;
(k) Determination of a budget or a long-term business plan;
(l) Conclusion or amendments of an important agreement concerning
design, manufacture and sales of products, and of an agreement
entered into by or among the New Company and the parties; and
(m) Determination of any other important matters than those specified
in the preceding paragraphs (a) through (l) which affect
management or administration of the New Company.
4. Agreements
----------
4.1 Technical Assistance and License Agreement
Upon the formation of the New Company, the parties shall cause the
--------------------------------------------------------------------
New Company to enter into a technical assistance and license agreement
----------------------------------------------------------------------
with STAAR, which agreement shall be substantially in the form attached
-----------------------------------------------------------------------
hereto as Exhibit B.
-------------------
4.2 Distribution Agreement
Upon the formation of the New Company, STAAR will grant to the New
------------------------------------------------------------------
Company a right of first refusal with respect to any distribution of
--------------------------------------------------------------------
its products in Japan. If the New Company exercise such right, STAAR
---------------------
and the
-4-
New Company shall enter into an agreement providing for detail terms
and conditions of distribution of such products.
4.3 Purchase Agreement
Upon the formation of the New Company, STAAR will grant to the New
------------------------------------------------------------------
Company the right to purchase from STAAR such manufacturing equipment
---------------------------------------------------------------------
and tooling as is necessary to manufacture both soft and hard
-------------------------------------------------------------
intraocular lenses. If the New Company exercise such right, STAAR and
------------------
the New Company shall enter into an agreement providing for detail
terms and conditions of purchase of such manufacturing equipment and
tooling.
4.4 Company's Name License Agreement
Upon the formation of the New Company, the parties will grant to the
New Company a license to use their names as part of the New Company's
name.
5. Partners Continuing Assistance
------------------------------
STAAR, CANON and CANON SALES shall endeavor to assist the New Company
until such time as the New Company is operated on its own. To that
end, CANON and CANON SALES shall provide to the New Company its initial
Production Technicians and (on a part-time basis) its initial
Administrative Manager, and STAAR shall provide to the New Company its
initial Technical Manager or Managers. All such personnel shall be
employees of the New Company. The New Company has no responsibility to
reimburse the shareholders of the New Company for costs and expenses
(including, but not limited to, accounting, consulting and attorneys'
fees) incurred by them.
6. Restrictions on Assignment, Etc. of Shares
------------------------------------------
No party shall assign, transfer, offer as a security or otherwise
-----------------------------------------------------------------
dispose of the whole or any portion of the shares of the New Company
--------------------------------------------------------------------
owned by STAAR, CANON and CANON SALES without the prior written consent
-----------------------------------------------------------------------
of the other parties.
--------------------
7. Termination of Agreement
----------------------------
7.1 Prior to the formation of the New Company, STAAR, CANON or CANON SALES
--- -----------------------------------------
may terminate this Agreement immediately upon the occurrence of any of
the following events (provided that in the case of paragraph (2), (3)
or (4), the party in respect of which the relevant event has occurred
may not terminate this Agreement):
(1) The Notification concerning Domestic Direct Investment referred to
in Section 2.1 is not accepted by the Japanese Government.
-5-
(2) One of the parties cannot pay its debts, or applies for commencement
of proceedings in bankruptcy, composition, reorganization or other
similar proceedings, or such application is made against such party,
or such party decides that it will be dissolved or be put into
liquidation proceedings, or terminate its business activities.
(3) In the event that one of the other parties defaults in performing its
obligations hereunder, such default is not cured within ninety (90)
days from the date such party receives a notice of such default from
STAAR, CANON or CANON SALES.
(4) One of the parties hereto merges or consolidates with any other
person (who is not a party hereto) or disposes of substantially all of
its assets to any other person (who is not a party hereto) or any
material change occurs in the management of one of the parties hereto,
or any person (who is not a party hereto) attempts to acquire all or a
substantial portion of the issued and outstanding shares of any party
hereto by way of tender offer or otherwise or attempts to acquire all
or substantial portion of the business or assets or property of any
party hereto.
(5) An event set forth in Section 8.5 occurs and the continuance thereof
has a material adverse effect on the formation or business operation
of the New Company.
(6) In the event that any problem which materially affects the New Company
or continuance of the New Company's business activities is not
resolved among STAAR, CANON and CANON SALES after they negotiated
fully in order to resolve such problem for a period of six (6) months.
7.2 After the formation of the New Company, this Agreement shall remain in
effect until all of shares of the New Company owned by STAAR, CANON or
CANON SALES are assigned to one of the parties or until the New Company is
dissolved.
7.3 After the formation of the New Company, if paragraph (5) of Section 7.1
occurs, STAAR, CANON and CANON SALES shall dissolve the New Company and put
into the liquidation proceedings.
7.4 After the formation of the New Company, if any event referred to in
paragraph (2) or (3) or (4) of Section 7.1 occurs in respect of any party
hereto (such party being hereinafter referred to as the "Defaulting
Party"), any of the other parties may request the
-6-
Defaulting Party to assign within sixty (60) days after such request at
a book value all of the shares of the New Company held by the Defaulting
Party to the requesting party or any person other than the Defaulting
Party designated by the requesting party, and upon receipt by the
Defaulting Party of such request, the Defaulting Party shall become
obligated forthwith to assign the shares of the New Company as
aforesaid.
7.5 After the formation of the New Company, if paragraph (6) of Section 7.1
occurs, STAAR, CANON and CANON SALES shall negotiate about the
assignment of all of the shares of the New Company owned by STAAR, CANON
or CANON SALES to the other parties, and if such negotiation ends in
failure, the New Company shall be dissolved and put into the liquidation
proceedings.
8. General Provisions
------------------
8.1 Reimbursement of Expenses
The expenses arising from the formation of the New Company, such as the
cost of registration of the New Company, etc., shall be reimbursed by
the New Company.
8.2 Modification, Etc. of Agreement
This Agreement shall not be amended, varied or added without the prior
written consent of STAAR, CANON and CANON SALES.
8.3 Assignment
STAAR, CANON and CANON SALES shall not assign or transfer all or any
part of their rights and obligations under this Agreement to a third
party without the prior written consent of other parties.
8.4 Non-disclosure
Each party agrees not to disclose to any third party the fact that
STAAR, CANON and CANON SALES have made this Agreement or its contents
unless the parties mutually agree for a disclosure.
8.5 Force Majeure
No party shall be responsible for its non-performance or delay of
performance of all or a part of its obligations hereunder directly or
indirectly due to natural calamities, orders issued or restrictions
imposed by any government, wars, rebellions, strikes, lock-outs, fires,
floods or such other causes or accidents as are deemed to be beyond the
parties' reasonable control; provided, however, that the affected party
shall inform the other parties of such event of force majeure
immediately after the occurrence of such event.
-7-
8.6 Notice
Any notice which is required to be given under this Agreement
shall be in writing and shall be given by personal service or by
prepaid registered mail addressed to the following addresses or
such other addresses as the applicable party may designate:
To STAAR:
STAAR Surgical Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000, X.X.X.
Attn: Chairman
To CANON:
Xxxxxx Inc.
00 Xxxxxxxx-xxx
Xxxxxxxx-xx, Xxxxxxxx-xxx
Xxxxxxxx Xxxx. 000, Xxxxx
Attn: Chief Executive
Optical Products Operations
To CANON SALES:
Canon Sales Co., Inc.
00-00, Xxxx 0-xxxxx
Xxxxxx-xx, Xxxxx 000, Xxxxx
Attn: Director and Headquarters' Chief
Optical Products Sales Headquarters
All notices specified hereunder shall be deemed effective when
actually received.
8.7 Governing Law
The validity, construction and performance of this Agreement shall
be governed by and interpreted in accordance with the laws of
Japan.
8.8 Arbitration
All disputes, controversies or differences which may arise among
STAAR, CANON and CANON SALES, out of, in relation to or in
connection with this Agreement, shall be finally settled by
arbitration in Tokyo, Japan in accordance with the Commercial
Arbitration Rules of The Japan Commercial Arbitration
Association. The award rendered by arbitrator(s) shall be final
and binding upon the parties.
8.9 Entire Agreement
This Agreement constitutes the entire agreement among the parties
hereto and supersedes all previous negotiations, agreements and
commitments in respect thereto.
- 8 -
In witness whereof, the parties have caused this Agreement to be executed in
triplicate, and each of the parties has one original.
STAAR Surgical Company
By: /s/ Xxx Xxxxxxxx
-------------------------
Xxxxxx X. Xxxxxxxx
Chairman
Canon, Inc.
By: /s/ Torakiyo Yamanaka
-------------------------
Torakiyo Yamanaka
Managing Director and
Chief Executive
Optical Products Operations
Canon Sales Co., Inc.
By: /s/ X. Xxxxxxxx
-------------------------
Hirosuko Fujiwara
Director and Headquarters' Chief
Optical Products Sales Headquarters
-9-
Exhibit A
---------
ARTICLES OF INCORPORATION
OF
CANON STAAR KABUSHIKI KAISHA
Chapter I. General Provisions
Article 1. Name
---------------
The name of the Company shall be Canon Staar Kabushiki Kaisha, and, in
English, Canon Staar Co., Inc.
Article 2. Objects
------------------
The objects of the Company shall be to engage in the following business:
(1) Manufacture and sale of intraocular lenses, surgical packs, phaco
emulsification machines, ophthalmic solutions and other
pharmaceuticals and medical equipment.
(2) Any and all business incidental to the preceding item.
Article 3. Location of Head Office
---------------------------------
The Company shall have its principal office at Minato-ku, Tokyo.
Article 4. Method of Public Notices
-----------------------------------
Public notices of the Company shall be made in the
Kampo, the official __azette.
Chapter II. Shares
Article 5. Total Number of Shares
---------------------------------
The total number of shares authorized to be issued by the Company shall
be twenty thousand (20,000) shares.
Article 6. Par Value Shares
---------------------------
All shares to be issued by the Company shall be par value voting common
shares and the par value of each share shall be fifty thousand (50,000) yen.
Article 7. New Shares
---------------------
The Shareholders of the Company shall have the preemptive right to
subscribe to all new shares of the Company.
Article 8. Share Certificates
-----------------------------
The share certificates to be issued by the Company shall all be in
registered nominative form, in three (3) denominations, of one (1) share, ten
(10) shares and one hundred (100) shares. Provided, however, that whenever
necessary, other denominations of share certificates may be issued by
resolution of the Board of Directors.
Article 9. Registration of Transfer
-----------------------------------
(1) In the case of an application for registration of a transfer of
shares because of assignment, an application shall be submitted to the Company
in the Company prescribed form together with the applicant's seal impression or
the signature in the case of a foreigner accustomed to using a signature,
together with the share certificate if such has been issued.
(2) In the case of an application for registration of transfer of shares
in cases other than assignment, the procedures under the preceding paragraph
shall be followed and in addition, a document evidencing the acquisition shall
be submitted at the request of the Company; provided, however, that when the
share certificate has not been issued, it is not necessary to submit the share
certificate.
Article 10. Notification
------------------------
(1) Each shareholder, registered pledgee or his legal representative
shall notify the Company of his name and address, and present his
seal-impression. Provided, however, that a copy of his signature can be
substituted for the seal impression.
(2) Each shareholder, registered pledgee or his legal representative
residing abroad shall establish a provisional address or appoint an agent in
Japan, and shall notify the Company of such provisional address or the name and
address of such agent in Japan.
(3) In the case of changes in matters for which notification has been
made in accordance with the preceding two paragraphs, the Company shall be
notified.
Article 11. Registration of Pledge or Indication of Trust
---------------------------------------------------------
Property or Cancellation Thereof
--------------------------------
In the case of an application for registration of a pledge or for
indication of trust property, the application shall be submitted in the Company
prescribed form together with the applicant's seal impression or the signature
in the case of a foreigner accustomed to using a signature, together with the
share certificate, if such has been issued. The same shall
-3-
also apply in the case of an application for cancellation of such registration
or indication.
Article 12. Notice of Non-possession of Share Certificates and
--------------------------------------------------
Application for Delivery of Non-possessed Share
-----------------------------------------------
Certificates
------------
(1) In the case of notice of non-possession of share certificates the
written notice shall be submitted in the Company prescribed form, together with
the share certificate; provided, however, that when the share certificate has
not been issued, it is not necessary to submit the share certificate.
(2) In order for a shareholder who has given notice of non-possession of
share certificates to apply for the issuance of such share certificates, he
shall submit the application in the prescribed form.
Article 13. Representatives of Corporate and Joint-owned Share
--------------------------------------------------------------
(1) If a shareholder is a corporation, such shareholder shall not
file notification of its representative with the Company. In case of a change
in the such representative, notification shall be filed with the Company in the
Company prescribed form, together with a certified extract of the corporate
register.
(2) Shareholders who own shares jointly shall select a representative
and file notification of such representative in the prescribed form. The same
shall also apply with regard to any change occurring in such representative.
Article 14. Re-issuance of Share Certificates
---------------------------------------------
(1) In the case of an application for issuance of a new share
certificate due to division or consolidation of share certificates, the
application shall be submitted to the Company in the prescribed form, together
with the share certificates.
-4-
(2) In the case of an application for issuance of a new share
certificate due to loss of share certificate, the application shall be submitted
to the Company in the prescribed form, together with an original or an
authenticated copy or a certified copy of the judgment of nullification.
(3) In the case of an application for issuance of a new share
certificate due to defacement or destruction of share certificate, the
application shall be submitted in the prescribed form, together with the share
certificate; provided, however that if it is difficult to ascertain the
information on the share certificate concerned or the genuineness thereof, the
procedures under the preceding paragraph (2) shall be followed.
Article 15. Fee
---------------
Any person making any request under Articles 9, 10 and 13 shall pay to
the Company such fees as the Company may from time to time determine.
Article 16. Restrictions of Transfer
------------------------------------
The Shareholders shall not assign any of the shares of this Company held
by them, or any pre-emptive right to new shares allotted to them without
obtaining the approval by resolution of the Board of Directors thereto in
advance.
Article 17. Record Date
-----------------------
(1) The shareholders who are entitled to exercise their rights as
shareholders at the ordinary general meeting of shareholders for each fiscal
year shall be those shareholders entitled to vote and appearing in the register
of shareholders as of the last day of such fiscal year.
(2) In addition to the preceding paragraph, the Company
-5-
may, whenever the need arises and by giving two (2) weeks prior notice thereof
suspend the register of shareholders as of a certain date in which case only
those shareholders or registered pledges appearing in the register of
shareholders as of said date shall be shareholders or pledgees who are entitled
to exercise the rights thereof.
Chapter III. General Meeting of Shareholders
Article 18. Holding of General Meeting
--------------------------------------
(1) The ordinary general meeting of shareholders shall be convened
within three (3) months after the end of each fiscal year and an extraordinary
general meeting of shareholders shall be convened whenever necessary.
(2) A general meeting of shareholders of the Company shall be held at
the head office of the Company or at such place to which all shareholders agree
in writing.
(3) Notice of any general meeting of shareholders shall be dispatched at
least fourteen (14) days before the day set for such meeting. The notice shall
set forth the agenda of the meeting and shall be handed, mailed (by postage
prepaid registered airmail to the shareholders with addresses outside of Japan),
or cabled by prepaid telegram. Said fourteen (14) days period of notice may be
shortened by written agreement of all the shareholders.
(4) Unless otherwise provided by laws or ordinances, a general meeting
of shareholders shall be convened by the Representative Director in accordance
with the resolution of the Board of Directors.
(5) If the Representative Director is unable to act, such meeting shall
be convened by another Director in
-6-
accordance with the order prescribed in advance by resolution of the Board of
Directors.
Article 19. Chairmanship
------------------------
(1) The chairmanship of a general meeting of shareholders shall be assumed
by the Representative Director, provided that if the Company has more than one
Representative Director, such chairmanship shall be assumed in accordance with
the order prescribed in advance by resolution of the Board of Directors.
(2) If the Representative Director is unable to act, such chairmanship
shall be assumed by another Director in accordance with the order prescribed in
advance by resolution of the Board of Directors.
Article 20. Method of adopting resolutions
------------------------------------------
Unless otherwise provided by mandatory provisions of laws or ordinances or
by these Articles of Incorporation, the presence of shareholders representing a
majority of all the issued shares shall be required to make a quorum, and
resolutions at a general meeting of shareholders shall be adopted by the
affirmative vote of a majority of shareholders present at a meeting where a
majority of all shareholders is present or represented.
Article 21. Exercise of Voting Rights by Proxy
----------------------------------------------
Shareholders may exercise their votes by proxy. In such case, the proxy
shall file with the Company a document evidencing his authority prior to each
general meeting of shareholders.
- 7 -
Article 22. Minutes of General Meeting
---------------------------------------
The substance of the proceedings at a general meeting of shareholders
and the results thereof shall be recorded in minutes of the meeting, which shall
bear the signatures or the names and seals of the Chairman and of the Directors
present at the meeting, and shall be kept in the Company's principal office. An
English translation of all such minutes shall be made and shall bear the
signatures or the names and seals of the Chairman and of the Directors present.
Chapter IV. Directors, Auditors and Board of Directors
Article 23. Number of Directors and Auditors
---------------------------------------------
The Company shall have three (3) Directors and one (1) Auditor.
Article 24. Election
---------------------
The election of Directors shall not be made by cumulative voting.
Article 25. Term of Office
---------------------------
(1) The term of office of Directors and Auditors shall expire upon
conclusion of the ordinary general meeting of shareholders for the last fiscal
year within two (2) years after their assumption of office.
(2) The term of office of Directors and/or Auditors elected to fill a
vacancy shall expire with the expiration of the remaining term of office of the
retired Director and/or Auditor.
(3) The term of office of Directors elected by reason of
- 8 -
an increase in the number of Directors shall expire with the expiration of the
remaining term of office of the other Directors presently in office.
Article 26. Representative Directors
------------------------------------
(1) Not more than three (3) Representative Directors to represent the
Company shall be elected by resolution of the Board of Directors.
(2) Each Representative Director is authorized to represent the
Company.
Article 27. Directors with Specific Titles
------------------------------------------
By resolution of the Board of Directors, the Company shall have a
President and other Directors with specific titles.
Article 28. Convening and Presiding
-----------------------------------
(1) Unless otherwise provided by laws or ordinances, a meeting of the
Board of Directors shall be convened and presided over by the President.
(2) If the President is unable to act, such meeting shall be convened
and presided over by another Director in accordance with the order prescribed in
advance by resolution of the Board of Directors.
(3) Notice of convocation of a meeting of the Board of Directors shall
be dispatched to each Director and each Statutory Auditor at least ten (10) days
before the date of such meeting; provided, however, that such period may be
shortened to three (3) days in case of necessity and that, with the consent of
all directors, the convocation procedures may be omitted.
-9-
Article 29. Board of Directors
------------------------------
(1) The Board of Directors shall be composed of the Directors and, in
addition to the matters provided by laws or ordinances or by these Articles
of Incorporation, shall make decisions regarding the execution of important
business of the Company.
(2) The Board of Directors shall supervise the execution by Directors of
their duties.
(3) The Board of Directors shall receive reports on the progress of
execution of business from the President or a Director named by him, at least
once every three months.
Article 30. Resolutions
-----------------------
(1) Resolutions at a meeting of the Board of Directors shall be adopted
by the majority vote of the Directors present, who shall constitute at least two
(2) Directors.
(2) Directors having special interest in any resolution under the
preceding paragraph shall not participate in the voting on such resolution.
(3) The number of Directors who can not participate in the voting on a
resolution in accordance with the provision of the preceding paragraph shall not
be counted in number of Directors under paragraph 1.
Article 31. Minutes of Meetings
-------------------------------
The substance of proceedings at a meeting of the Board of Directors and
the results thereof shall be recorded in minutes of the meeting, which shall
bear the signatures or the names and seals of the Chairman and of the Directors
present at
-10-
the meeting, and shall be preserved in the Company's head office. An English
translation of all such minutes shall be made and shall bear the signatures or
the names and seals of the Chairman and of the Directors present.
Chapter V. Accounting
Article 32. Fiscal Year
-----------------------
The fiscal year of the Company shall be from January 1 to December 31 of
the same year each year, and the settlement of accounts of the Company shall be
made at the end of the fiscal year.
Article 33. Dividends and Interim Dividends
-------------------------------------------
(1) Dividends shall be paid to the shareholders or pledgees appearing on
the register of shareholders as of the last day of each fiscal year.
(2) By resolution of the Board of Directors, the Company may distribute
interim dividends to the shareholders or pledgees appearing on the register of
shareholders as of June 30 each year.
(3) Dividends and/or interim dividends shall revert to the company when not
received within three (3) years after the day when they first become payable.
(4) No interest shall accrue on dividends and/or interim dividends.
Chapter VI. Supplementary Provisions
Article 34. Shares to be Issued at the Time of Incorporation
------------------------------------------------------------
-11-
The number of shares to be issued by the Company at the time of
incorporation shall be seven thousand and five hundred (7,500) common par value
shares, and the issuing price shall be fifty-thousand (50,000) yen per share.
Article 35. Term of Office of the First Directors and the First Statutory
-------------------------------------------------------------------------
Auditors
--------
Notwithstanding the provisions of Article 25, the term of office of the
first Directors and the first Statutory Auditors shall expire at the conclusion
of the first ordinary general meeting of shareholders after their assumption of
office.
Article 36. First Fiscal Year
-----------------------------
The first fiscal year of the Company shall be from the day of its
incorporation until the 31st day of December of the year of its incorporation.
Article 37. Promoters
---------------------
The names and addresses of the promoters as well as the number of shares
subscribed to by each of them are as follows:
Number of Shares Name and Address of Promoter
---------------- ----------------------------
(1) share
(2) share
(3) share
(4) share
(5) share
(6) share
(7) share
- 12 -
The undersigned promoters for Canon Sta____ Co., Inc. have made these
Articles of Incorporation in accordance with the provisions of the Commercial
Code of Japan and have hereunto affixed their signatures or names and seals,
with their respective addresses, this ____ day of _____________, 1988.
(1) _________________________________________
(2) _________________________________________
(3) _________________________________________
(4) _________________________________________
(5) _________________________________________
(6) _________________________________________
(7) _________________________________________
-13-
Exhibit B
---------
TECHNICAL ASSISTANCE AND LICENSE AGREEMENT
------------------------------------------
THIS AGREEMENT, entered into as of the ____ day of _________, 1988, by and
between STAAR Surgical Company, a corporation organized and existing under the
laws of the State of Delaware, U.S.A., with head office at 0000 Xxxxxx Xxxxxx,
Xxxxxxxx, Xxxxxxxxxx 00000, X.X.X. (hereinafter referred to as "STAAR") and
Canon Staar Co., Inc., a company organized and existing under the laws of Japan,
with head office at __________________________________, Japan (hereinafter
referred to as the "JV").
WITNESSETH:
WHEREAS, STAAR, Canon Inc., a Japanese corporation with head office at 00-
0, Xxxxxxxxxxx 0-xxxxx, Xxxx-xx, Xxxxx, Xxxxx and Canon Sales Co., Inc., a
Japanese corporation with head office at 00-00, Xxxx 0-xxxxx, Xxxxxx-xx, Xxxxx,
Xxxxx have jointly organized the JV pursuant to the Joint Venture Agreement of
______________, 1988; and
WHEREAS, the JV desires to obtain a fully paid-up, license under the
patent applications, patents, technical information, knowhow and other
intellectual property owned or controlled by STAAR to manufacture and market
throughout the world certain intraocular and other products; and
WHEREAS, STAAR agrees to grant the JV subject to agreements previously made
by STAAR with third parties, such a license under the patent applications,
patents, technical information, knowhow and other intellectual property owned or
controlled by STAAR.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants herein contained, the parties hereto agree as follows:
ARTICLE 1 - DEFINITIONS
-----------------------
1.1 The term "LICENSED PATENTS" as used herein shall mean any and all
patents, applications for patent (including utility models) throughout the
world owned or controlled by STAAR now and hereafter or under which STAAR has
the right to license now and hereafter, any and all corresponding patents in any
country of the world, any and all patents (including utility models) resulting
from continuations, continuations-in-part, divisions and changes of application
of any such applications for patent, and any and all reissues, reexaminations or
extensions of any such patents, including, but not limited to, Japanese patent
applications in the Appendix attached to this Agreement.
1.2 The term "LICENSED TECHNOLOGY" as used herein shall mean any and all
intellectual property, including but not limited to, the LICENSED PATENTS,
copyright rights, software, drawings, knowhow, inventions, technical
documentation and specifications relating to intraocular lenses, surgical packs,
phaco emulsification machines, ophthalmic solutions, other pharmaceuticals and
medical equipment, owned or controlled by STAAR now and hereafter or under
which STAAR has the right to license now and hereafter.
1.3 The term "EFFECTIVE DATE" as used herein shall mean the day on which
this Agreement becomes effective in accordance with ARTICLE 5, Paragraph 5.1 of
this Agreement.
ARTICLE 2 - GRANT
-----------------
2.1 STAAR grants to the JV under the LICENSED TECHNOLOGY a royalty free
and payment free, fully paid-up, irrevocable, exclusive license to make, have
made, use, sell, lease or otherwise dispose of any products in Japan, and grants
to the JV under the LICENSED TECHNOLOGY a royalty free and payment free, fully
paid-up, irrevocable, non-exclusive license to use, sell, lease
2
The JV has the right to use the LICENSED TECHNOLOGY to make any products
pursuant to the licenses granted in this Paragraph 2.1.
2.2 The JV is authorized to apply to the Japanese Patent Office for the
creation of the registration of the exclusive-license granted herein under the
laws of Japan at any time during the term of this Agreement. STAAR agrees, upon
request by the JV, to execute all necessary documents and to take all reasonable
steps to assist the JV in the creation of such registration.
ARTICLE 3 - TRANSFER AND TRAINING
---------------------------------
3.1 Transfer - Within a certain period from the EFFECTIVE DATE which such
--------
period shall be agreed upon between the parties, STAAR agrees to provide to the
JV the LICENSED TECHNOLOGY in written or other tangible form to enable the JV to
make, sell and service products, pursuant to the licenses set forth in ARTICLE
2, Paragraph 2.1 hereof.
3.2 Training - Within a certain period from the EFFECTIVE DATE which such
--------
period shall be agreed upon between the parties, STAAR agrees to provide the
following training program at the JV's premises to engineers and/or employees of
the JV:
(a) General. Explanations of the LICENSED TECHNOLOGY;
(b) Basic manufacturing and service trainings for products in
utilizing the LICENSED TECHNOLOGY.
3.3 Consulting Services - Within a period beginning on the EFFECTIVE DATE
-------------------
of this Agreement, STAAR agrees to give the continuing assistance in starting up
the JV's manufacture of the products.
ARTICLE 4 - PAYMENT
-------------------
4.1 In consideration of the licenses and right granted herein, the JV
agrees to pay STAAR the sum of Three Million
3
from the EFFECTIVE DATE of this Agreement.
4.2 The payment by the JV to STAAR shall, except in the case where STAAR
specifically designates, be made in the United States currency to the bank
account designated by STAAR. In the event the JV is required to withhold income
tax imposed by the Government of Japan at the source on the payment to be made
by the JV to the STAAR hereunder, the JV may as of the time of payment deduct
the sum of the Japanese income tax from the payment to be made to STAAR, which
sum shall not exceed the rate stipulated in the Convention between Japan and the
United States of America for the Avoidance of Double Taxation and the Prevention
of Fiscal Evasion with Respect to Taxes on Income. In the event the JV withheld
and paid such income tax, the JV shall transmit to STAAR official tax receipt or
other evidence issued by the appropriate Japanese tax authorities sufficient to
enable STAAR to support a claim for United States tax credit, in respect of any
such tax withheld and paid, against income taxes which may be levied by the
United States Government.
ARTICLE 5 - TERM AND TERMINATION
--------------------------------
5.1 This Agreement shall become effective on the day on which governmental
clearance hereof is obtained under the foreign exchange and foreign trade
control law of Japan, and shall continue in effect until such time when the
parties agree to terminate.
ARTICLE 6 - WARRANTY AND INDEMNIFICATION
----------------------------------------
6.1 STAAR represents and warrants that it has the right to grant the right
and licenses granted by it herein, and that it has not granted any right or
license to any third party which will prevent STAAR from granting such right or
licenses to the JV.
4
patent or utility model or to maintain any patent or utility model in force.
STAAR agrees to consult with the JV prior to abandoning any application for
patent or utility model, or any patent or utility model by giving the JV prior
written notice thereof and granting to the JV a first right of refusal for
obtaining such application, patent or utility model at the JV's expense.
6.3 If any claim that the manufacture, use, sell, lease and/or other
disposition of the products under the LICENSED TECHNOLOGY license granted
hereunder constitutes infringement of any third party's patent, utility model or
other intellectual property is brought against the JV, its agents, distributors
and/or customers, STAAR shall, at its own expense, defend such claim and hold
the JV, its agents, distributors and/or customers harmless from any loss,
expense, cost or damage suffered from or incurred by the JV, its agents,
distributors and/or customers, provided the JV shall promptly notify STAAR of
such claim and shall cooperate in the defense thereof. STAAR's liability to the
JV under this Paragraph 6.3 shall not exceed One Million United States Dollars
(U.S. $1,000,000).
ARTICLE 7 - GENERAL PROVISIONS
------------------------------
7.1 Modification, Etc. of Agreement - This Agreement shall not be
-------------------------------
amended, varied or added without the prior written consent of STAAR and the JV.
7.2 Assignment - This Agreement may not be assigned or transferred in
----------
whole or in part by any party to any third party without the prior written
consent of the other party.
7.3 Non-Disclosure - Neither party shall, without first securing the
--------------
written consent of the other, disclose any of the terms and conditions hereof to
any third party, except as required by law or government regulation.
5
^^^ is required to be given under this Agreement shall be in writing
and shall be given by personal service or by prepaid registered air mail
addressed to the following addresses or such other addresses as the applicable
party may designate:
To STAAR: STAAR Surgical Company
0000 Xxxxxx Xxxxxx
Xxxxxxxx, Xxxxxxxxxx 00000
X.X.X.
Attn: Chairman
To the JV:
All notices specified hereunder shall be deemed effective when actually
received.
7.5 Governing Law - The validity, construction and performance of this
-------------
Agreement shall be governed by and interpreted in accordance with the laws of
Japan.
7.6 Entire Agreement - This Agreement constitutes the entire agreement
----------------
between the parties hereto and supercedes all previous negotiations, agreements
and commitments in respect thereto.
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed in duplicate, and each of the parties has one original.
STAAR SURGICAL COMPANY CANON STAAR CO., INC.
By: /s/ Xxx Xxxxxxxx By:
------------------------- ------------------------
Xxxxxx X. Xxxxxxxx
Chairman
6
APPENDIX
--------
Japanese Patent Application No. 18005/1983
Filed: February 5, 1983
Laid Open: August 31, 1983 (No. 146346/1983)
Japanese Patent Application No. 134221/1983
Filed: July 22, 1983
Laid Open: March 6, 1984 (No. 40860/1984)
Japanese Patent Application No. 134222/1983
Filed: July 22, 1983
Laid Open: April 17, 1984 (No. 67944/1984)
Japanese Patent Application No. 225057/1986
Filed: September 25, 1986
Laid Open: May 20, 1987 (No 109563/1987)
Japanese Patent Application No. 226364/1986
Filed: September 26, 1986
Laid Open: May 20, 1987 (No. 109564/1987)
