Joint Venture Agreement

EXHIBIT 10.4









JOINT VENTURE AGREEMENT

-----------------------



THIS AGREEMENT entered into this 27th day of May 1992, by and among Rofin Sinar Laser GmbH, a corporation duly organized and existing under the laws of the Federal Republic of Germany, with its principal office at Berzeliusstrasse 87, Postfach 740360, 2000 Hamburg 74, Billbrookdeich 186, the Federal Republic of Germany (hereinafter called "RSL"), Marubeni Corporation, a corporation duly organized and existing under the laws of Japan, with its principal office at 4 - 2, Ohtemachi 1-chome, Chiyoda-ku, Tokyo, Japan (hereinafter called "MARUBENI"), and Nippei Toyama Corporation, a corporation duly organized and existing under the laws of Japan, with its principal office at World Trade Center, 33rd Floor, 2-4-1, Hamamatsucho, Minato-ku, Tokyo, Japan (hereinafter called "NTC"),



WITNESSETH:



WHEREAS, RSL is engaged in, among other things, the business of development, manufacturing and sale of laser systems and related products;



WHEREAS, MARUBENI is engaged in, among other things, the business of promoting the sale and distribution of various goods throughout the world; WHEREAS, NTC is engaged in, among other things, the business of development and research of application of various engineering and technical matters;



WHEREAS, RSL, MARUBENI and Nippei Toyama institute, an AFFILIATE of NTC, entered into a Joint Venture Agreement dated August 20, 1985 (hereinafter called the "Original Joint Venture Agreement") pursuant to which they established a new company in Japan called "Marubeni Rofin Laser Kabushiki Kaisha" in Japanese and "Rofin Marubeni Laser Corporation" in English (hereinafter called the "Company") for the principal purpose of manufacturing and selling power supplies for a certain C02 Laser;



WHEREAS, the parties have agreed to change their shareholding ratio in the Company; and



WHEREAS, the parties have also agreed that the activities of the Company will be expanded to include the manufacture and sale of other equipment such as laser heads.



NOW, THEREFORE, for and in consideration of the premises and mutual covenants herein contained, the parties hereto hereby set forth their agreement as follows:



SECTION 1. DEFINITIONS - ----------------------- When used in this Agreement, each of the terms set forth in this SECTION 1 shall have the respective meaning indicated:





1.1 "EFFECTIVE DATE"

----------------



The date on which the last of the approvals provided for in SECTION 13

hereof has been obtained or, as the case may be, the period for comment by

the relevant governmental authority has expired, but in any event not

earlier than October 1, 1992.



1.2 "ASSOCIATED AGREEMENTS"

-----------------------



The agreements relating to this Agreement and set forth in SECTION 3 hereof

which previously have been entered into or which are to be entered into

hereafter between the Company and the respective party to this Agreement.



1.3 "SHARES"

--------



Those shares of par value common voting stock which were issued by the

Company to the parties hereto in exchange for their respective

contributions made pursuant to the Original Joint Venture Agreement and

which are to be made pursuant to SECTION 2 hereof, as well as any

additional shares of par value common voting stock of the Company which may

be issued from time to time.



1.4 "PRODUCTS"

----------

Lasers for industrial applications.



1.5 "AFFILIATE"

-----------

Any corporation, other juridical entity, partnership or other business

enterprise which qualifies under any of the following:



(1) Which owns or controls, directly or indirectly, fifty percent (50%) or

more of the voting rights with respect to the election of directors of

any party hereto;



(2) Of which fifty percent (50%) or more of the voting rights with

respect to the election of directors is owned or controlled, directly

or indirectly, by any party hereto; or



(3) Of which fifty percent (50%) or more of the voting rights with respect

to the election of directors is owned or controlled, directly or

indirectly, by any corporation, other juridical entity, partnership or

other business enterprise qualifying under either item (1) or (2)



SECTION 2. RESTRUCTURING OF THE COMPANY - ---------------------------------------- 2.1 Authorized Capital and Paid-In Capital of the Company

-----------------------------------------------------



At the time of the organization and registration of the Company, the

Company had an initial authorized capital of fifty million Yen

((Yen)50,000,000) and a total paid-in capital of fifty million Yen

((Yen)50,000,000). Such capital shall be increased as follows:









The Company shall have an authorized capital of two hundred million Yen

((Yen)200,000,000) and a total paid-in capital of two hundred million Yen

((Yen)200,000,000).



2.2 Capital Contributions by MARUBENI, RSL and NTC of Initial Authorized

--------------------------------------------------------------------

-------



Of the initial paid-in capital of the Company, MARUBENI has contributed in

cash the sum of twenty five million five hundred thousand Yen

((Yen)25,500,000) in exchange for the issuance by the Company of five

hundred ten (510) SHARES of the Company having a par value of fifty

thousand Yen ((Yen)50,000) per SHARE. RSL has contributed in cash the sum

of fifteen million Yen ((Yen)I5,000,000) in exchange for the issuance by

the Company of three hundred (300) SHARES of the Company having a par value

of fifty thousand Yen ((Yen)50,000) per SHARE. NTC has contributed in cash

the sum of nine million five hundred thousand Yen ((Yen)9,500,000) in

exchange for the issuance by the Company of one hundred ninety (190) SHARES

of the Company having a par value of fifty thousand Yen ((Yen)50,000) per



2.3 Capital Increase

----------------



As soon as practically possible after the EFFECTIVE DATE, the parties

hereto shall cause an extra-ordinary meeting of the shareholders of the

Company to be held. At such meeting each party hereto undertakes to vote

its SHARES so as to increase the Company's authorized capital by one

hundred fifty million Yen







((Yen)150,000,000) to hundred million Yen ((Yen)200,000,000).



Such increased capital shall be subscribed to by the parties hereto (and

each SHARE shall be fully paid up in cash) in the following manner.



RSL shall contribute the sum of one hundred two million Yen

((Yen)102,000,000) in exchange for the issuance by the Company of two

thousand forty (2,040) SHARES of the Company having a par value of fifty

thousand Yen ((Yen)50,000) per SHARE. MARUBENI shall contribute the sum of

seventy four million Yen ((Yen)74,000,000) in exchange for the issuance by

the Company of one thousand four hundred eighty (1,480) SHARES of the

Company having a par value of fifty thousand Yen ((Yen)50,000) per SHARE.

NTC shall contribute the sum of twenty four million Yen ((Yen)24,000,000)

in exchange for the issuance by the Company of four hundred eighty (480)

SHARES of the Company having a par value of fifty thousand Yen

((Yen)50,000) per SHARE.



After the parties' aforementioned contributions, the parties' respective

shareholding ratio in the Company shall be as follows:



RSL - fifty one percent (51%);



MARUBENI - thirty seven percent (37%); and



NTC - twelve percent (12%).



2.4 Change of the Company's Name

----------------------------



At the extra-ordinary meeting of shareholders referred to in Paragraph 2.1

above, each party hereto also undertakes to vote its SHARES to change the

Company's name (as set forth in Paragraph 1.1 of the original Joint Venture

Agreement) so that henceforth the Company's name in Japanese and English

shall be "Rofin Marubeni Laser Kabushiki Kaisha" and "Rofin Marubeni Laser

Corporation", respectively.



2.5 Amendment of the Company's Articles of Incorporation



At the extra-ordinary meeting of shareholders referred to in Paragraph 2.1

above, each party hereto also undertakes to vote its SHARES to amend the

Company's articles of incorporation to conform to that attached hereto as

Exhibit 1. Said amended articles of incorporation shall be filed (and any

necessary related procedures shall be taken) by the Company with the

relevant Japanese governmental authorities.



2.6 Organizational Costs

--------------------



All costs and expenses of the registration of the capital increase and the

amendment of the Company's article of incorporation shall, to the extent

permitted by applicable law, be borne by the Company. Expenses incurred by

each party hereto up to the time of execution of this Agreement, including

travel expenses and legal fees, shall be borne by the party so incurring

such expenses.



SECTION 3. ASSOCIATED AGREEMENTS - ----------------------------------



3.1 On or before the EFFECTIVE DATE, the following agreements shall be entered

into between the relevant parties substantially in the forms annexed

hereto:



(1) Distributorship Agreement between RSL and the Company (Exhibit II).



(2) Local Distributorship Agreement between MARUBENI and the Company

(Exhibit III), which, when entered into, shall supersede the Sole

Distributorship Agreement between the Company and MARUBENI dated

September 1, 1985;



(3) Real Property Lease Agreement between RSL and the Company (Exhibit

IV);



(4) Building and Equipment Purchase Agreement between RSL and the

Company (Exhibit V); and



(5) Application Laboratory Purchase/Lease Agreement between MARUBENI and

the Company (Exhibit VI).



3.2 The following already existing agreements shall be amended in the forms

annexed hereto:



(6) License Agreement between RSL and the Company (Exhibit VII) together

with the amendment; and



(7) Plant and Equipment Lease Agreement between Nippei Toyama Institute,

NTC and the Company which shall expire on December 31st, 1994.



SECTION 4. MANAGEMENT OF THE COMPANY - -------------------------------------



4.1 The Board of Directors of the Company

-------------------------------------



Except as otherwise required by mandatory provisions of law or provided for

in the articles of incorporation of the Company, responsibility for the

management, direction and control of the Company shall be vested in the

board of directors of the Company. The articles of incorporation of the

Company shall provide for the election of seven (7) directors of the



4.2 Election of Directors

---------------------



The directors of the Company shall be elected at a general meeting of

shareholders. It is understood and agreed by the parties hereto that four

(4) of the directors of the Company shall be individuals nominated by RSL,

two (2) of the directors shall be individuals nominated by MARUBENI and one

(1) of the directors shall be an individual nominated by NTC. The right to

so nominate includes the right to replace the nominated individual.



4.3 Meetings of the Board of Directors of the Company

--------------------------------------------------



Meetings of the board off directors of the Company shall be convened and

conducted at regular intervals during each fiscal year of the Company.

Meetings of the board of directors shall be called by the President of the





4.4 Matters to be Submitted to a General Shareholders Meeting

---------------------------------------------------------



The parties hereto shall cause the directors of the Company nominated by

them in accordance with Paragraph 4.2 hereof to submit the following

matters to a general meeting of shareholders for approval by an affirmative

vote of seventy-five percent (75%) of the shareholders present in person or

by proxy:



(1) Amendment of the articles of incorporation of the Company;



(2) Plan of assignment or sale etc. of an important part of the assets of

the Company, including its good will;



(3) All major new contracts or modifications of contracts to which the

Company and any of the parties hereto is a party;



(4) Approval of the Company's financial statements, i.e. , balance sheets

and profit and loss statements, and annual forecasts; and



(5) Any increase in the authorized capital of the Company or other capital



4.5 Representative Director

-----------------------



The Company shall have one (1) representative director, who shall be

elected by the board of directors of the Company from among the members of

the board nominated by RSL.



4.6 Remuneration of the Directors of the Company

--------------------------------------------



The remuneration of the directors of the Company shall be determined by a

resolution of the general meeting of shareholders.



4.7 President

---------



The Company shall have a President who shall be the representative director

elected in accordance with Paragraph 4.5 hereof. The President shall serve

as the chief executive officer of the Company and, subject to the authority

of the board of directors, shall carry out the daily business of the

Company and shall preside at meetings of the board of directors.



4.8 Statutory Auditors

------------------



The Company shall have two (2) statutory auditors (Kansayaku), one of whom

shall be nominated by RSL and the other of whom shall be nominated by

MARUBENI and both of whom shall be elected at a general meeting of



4.9 Cooperation in Election of Directors, Representative Director and Statutory

---------------------------------------------------------------------------

--------



Each party hereto hereby covenants and agrees to vote its SHARES of the

Company, and to cause the directors of the Company nominated by it to cast

their votes, so as to appoint as directors, representative director and

statutory auditors of the Company, as the case may be, individuals who

qualify under the foregoing





provisions of this SECTION 4. In the event of the death, incapacity,

resignation or other removal of a director, representative director or

statutory auditor prior to the end of his term of office, each party hereto

agrees to vote its SHARES of the Company, or to cause the directors of the

Company nominated by it to cast their votes, so as to appoint as his

replacement a nominee who qualifies under the said foregoing provisions of

this SECTION 4.



4.10 Fiscal Year and Books of Account

--------------------------------



4.10.1 Fiscal Year

-----------

The accounting period of the Company shall commence on October 1

of each year and end on September 30 of the following year.

Accordingly, the current accounting period of the Company shall

end on September 30, 1992.



4.10.2 Books of Account

------ ----------------



The Company shall keep accurate books of account and financial and

related records in accordance with generally accepted Japanese

accounting practices, standards and procedures as prescribed by

the firm of certified public accountants to be designated pursuant

to Paragraph 4.11 hereof.





4.11 Certified Public Accountants

----------------------------



At the end of each accounting period of the Company, the books of account

and records of the Company shall be audited, at the expense of the Company,

by a firm of certified public accountants licensed to practice in Japan,

and mutually acceptable to the parties hereto. Such firm of certified

public accountants shall prepare and supply to each party hereto certified

financial reports consisting of a balance sheet and profit and loss

statement suitable for use by each of the parties hereto in connection with

its financial and tax reports.



4.12 Additional Audits

-----------------



Any party hereto may request that an additional audit be performed by an

accountant of its choice who must be certified in Japan. The cost of the

additional audit will be borne by the party requesting the audit.



4.13 Reporting and Inspection of the Company's Records

-------------------------------------------------



Promptly after the close of each semi-annual period, the Company shall,

submit to each party hereto in the Japanese and English languages the

unaudited balance sheet and profit and loss statement of the Company in

respect of such semi-annual period. Further, the Company shall make

available at its principal place of business during normal business hours

to each party hereto and/or to its designated rep ...