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Exhibit 10.46
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MASTER AGREEMENT
BY AND BETWEEN
ADFLEX SOLUTIONS, INC.
A DELAWARE CORPORATION,
OR ITS NOMINEE,
AND
HANA MICROELECTRONICS PUBLIC CO., LTD.,
A THAILAND PUBLIC LIMITED COMPANY,
OR ITS NOMINEE
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MASTER AGREEMENT
MASTER AGREEMENT (the "Agreement") made this 16th day of
April, 1996, by and between ADFlex Solutions, Inc., a Delaware corporation or
its nominee ("ADFlex"), and Hana Microelectronics Public Co., Ltd., a Thailand
public limited company or its nominee ("Hana").
WITNESSETH:
WHEREAS, ADFlex engages in the business of the design and
manufacture of flexible circuits, and desires to engage in flexible circuit
finishing and assembly in Thailand; and
WHEREAS, Hana owns a facility in the ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
suitable or capable of being made suitable for the finishing and assembly of
flexible circuits; and
WHEREAS, ADFlex and Hana desire to form a private limited
company under Thai law (the "Company") to engage in the finishing and assembly
of flexible circuits and all other activities related thereto in Thailand; and
WHEREAS, Hana desires to provide certain facilities and
administrative services to the Company on the terms and subject to the
conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
mutual covenants of the parties hereinafter set forth, ADFlex and Hana agree as
follows:
1. DEFINITIONS.
1.1 "Administrative Agreement" shall mean the Administrative Agreement
among the Company, Hana and ADFlex described in Section 7 hereof.
1.2 "Affiliate" shall mean a person that directly or indirectly through
one or more intermediaries, controls or is controlled by, or is under common
control with the person specified. For purposes of this definition, "control"
means the possession, direct or indirect, of the power to direct or cause the
direction of the management and policies of a person, whether through the
ownership of voting securities, by contract or otherwise.
1.3 "Agreement" shall mean this Master Agreement.
1.4 "Bring Down Certificate" shall mean a certificate delivered at the
Closing in which a party reiterates the truth and accuracy in all material
respects of the representations and warranties of the party as of the date of
the certificate and the Closing.
1.5 "Business Day" shall mean any day other than a Saturday, Sunday or
national holiday in the United States or Thailand or a day on which either state
or national banks in the State of Arizona or in Thailand are not open for (or
are permitted to close) the conduct of normal banking business.
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1.6 "Closing" shall mean the closing of this Agreement.
1.7 "Closing Date" shall mean the date on which the Closing shall
occur.
1.8 "Facilities Agreement" shall mean the Facilities Agreement among
the Company, Hana and ADFlex described in Section 6 hereof.
1.9 "License Agreements" shall mean the License Agreement and the
Trademark License Agreement to be dated as of the Closing Date among the
Company, ADFlex and Hana described in Section 8 hereof.
1.10 "Operative Agreements" shall mean collectively this Agreement, the
Facilities Agreement, the Administrative Agreement and the License Agreements.
1.11 "Territory" shall mean Thailand.
2. REGISTRATION OF THE COMPANY.
2.1 Hana shall initiate arrangements for the registration of the
Company in accordance with the terms of this Agreement and pursuant to the
Memorandum and Articles of Association in the form attached to this Agreement as
Exhibit A. All direct expenses in connection therewith shall be reimbursed to
Hana by the Company when formed.
2.2 The name of the Company shall be "ADFlex Thailand Limited."
2.3 The purpose of the Company shall be to perform flexible circuit
finishing and assembly and all other activities necessary or incidental thereto.
2.4 The Company shall have an initial registered capital of Baht 75
million represented by 7,500,000 common shares of Baht 10 par value each.
2.5 The auditors of the Company shall be Ernst & Young, L.L.P.
3. MANAGEMENT STRUCTURE OF THE COMPANY.
3.1 The Company shall be managed by a Board of Directors consisting of
five members. ADFlex shall nominate three of the Board members, Hana shall
nominate one Board member and the final Board member shall be the General
Manager of the Company. The initial directors of the Company shall be ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ and ▇▇▇▇ ▇. ▇▇▇▇▇▇, as the ADFlex nominees,
______________ as the Hana nominee and ______________ as the General Manager.
The powers of the authorized directors shall be any three directors signing
jointly. ADFlex and Hana agree to vote their shares of the Company as described
in Section 4 hereof in favor of the election of the foregoing members to the
Board of Directors at
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each annual ordinary general meeting and any extraordinary general meeting at
which Directors are to be elected.
4. SHARE OWNERSHIP.
4.1 The Company shall be authorized to issue 7,500,000 shares of the
Company with a par value of Baht 10. At the Closing, one share shall be issued
to each of the Directors and the remaining shares of the Company shall be issued
80% to ADFlex and 20% to Hana. In consideration of the issuance of such shares,
ADFlex shall contribute the Baht equivalent of $2.4 million (U.S.) to the
capital of the Company, Hana shall contribute the Baht equivalent of $.6 million
(U.S.) to the capital of the Company and the Directors shall each contribute the
Baht equivalent of $1.00 (U.S.) to the capital of the Company. ADFlex, Hana and
the Directors shall each pay in to the Company 25% of their respective capital
contributions for their shares set forth in this Section 4.1 at the Closing and
the remaining balance of such contributions in accordance with Section 12.5.
4.2 Should the Board of Directors determine that the Company requires
additional capital after its formation for future expansion or to otherwise
operate its business, ADFlex and Hana shall each have the right to acquire
additional shares at the price and on the terms determined by the shareholders
so as to preserve their percentage ownership in the Company. Neither ADFlex nor
Hana shall be obligated to contribute such additional capital to purchase
additional shares.
4.3 Cash payments for shares shall be made by wire transfer of
immediately available funds to the bank account of the Company established at
Standard Chartered bank in Bangkok, Thailand.
5. COMPANY DISTRIBUTIONS.
5.1 The Company shall retain its operating profits to meet ongoing
capital needs and to fund anticipated growth until such time or times as the
Board of Directors or shareholders determine to make dividends or other
distributions to ADFlex and Hana on account of their share ownership in the
Company.
5.2 Dividends or other distributions, if any, shall be paid equally on
each share.
6. FACILITIES AGREEMENT.
6.1 At the Closing, each party shall take all appropriate action to
cause the Board of Directors of the Company to enter into a Facilities Agreement
(the "Facilities Agreement") with Hana (and to which ADFlex also is a party) in
the form attached to this Agreement as Exhibit B.
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7. ADMINISTRATIVE AGREEMENT.
7.1 At the Closing, each party shall take all appropriate action to
cause the Board of Directors of the Company to enter into an Administrative
Agreement (the "Administrative Agreement") with Hana (and to which ADFlex also
is a party) in the form attached to this Agreement as Exhibit C.
8. LICENSE AGREEMENTS.
8.1 ADFlex will provide to the Company all technology transfer for
flexible circuit finishing and assembly pursuant to a License Agreement in the
form attached to this Agreement as Exhibit D and shall provide the Company with
a nonexclusive, royalty-free license from ADFlex to use the name "ADFlex" and
the corporate trademark of ADFlex in the conduct of the Company's business
pursuant to a Trademark License Agreement in the form attached to this Agreement
as Exhibit E (collectively, the "License Agreements"). At the Closing, each
party shall take all appropriate action to cause the Board of Directors of the
Company to enter into the License Agreements with ADFlex (and to which Hana also
is a party).
9. RIGHT OF FIRST REFUSAL.
9.1 Hana may not transfer, sell or otherwise dispose of any shares of
the Company without the prior written consent of ADFlex. In the event that Hana
desires to sell any shares and solicit a purchaser therefor, Hana shall give
ADFlex written notice of such fact at least six months prior to seeking a
purchaser for its shares. In the event of a proposed sale of shares, Hana shall
first offer to ADFlex the shares that Hana desires to sell to each proposed
buyer as provided in this Section 9.
9.2 Hana shall notify ADFlex in writing of its desire to sell shares of
the Company, with the notice setting forth (i) the number of shares Hana
proposes to sell, (ii) a statement that Hana has received a bona fide offer to
purchase the shares, and that Hana is willing to accept the offer, (iii) the
name and address of the offeror and the terms of the offer, and (iv) an offer
("Offer") to sell the shares to ADFlex at the same price and on the same terms
as have been offered to Hana. At the request of ADFlex, Hana shall provide a
copy of the offer received by it, in addition to such financial information or
other evidence as may be reasonably requested evidencing the ability and intent
of the bona fide offeror to complete the proposed purchase transaction.
9.3 ADFlex shall have 30 days after the receipt of the notice within
which to accept the Offer. ADFlex may not elect to purchase less than all of the
shares offered. If ADFlex accepts the Offer, ADFlex shall have 20 days after it
delivers notice of such acceptance within which to purchase the shares on the
terms and subject to the conditions set forth in the Offer.
9.4 If written consent to a transfer pursuant to this Section is
granted, or if the option to purchase is not exercised by ADFlex, Hana shall be
free for a period of 60 days after
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the consent, the failure to exercise the purchase option, or the written
notification by ADFlex of its rejection of the Offer, or until the expiration of
the original offer, whichever first occurs, to sell, transfer, or otherwise
dispose of the shares; provided that in the event of a sale, such sale shall be
made only for consideration not less than, and on terms no more favorable to the
buyer than, those specified in Hana's notice; and provided further that in all
cases the shares so transferred shall remain subject to the restrictions in this
Agreement and the transferee thereof shall be bound by the terms and conditions
of this Agreement. Any sale or transfer not made in accordance with the terms of
this Section shall automatically be deemed null and void.
10. OPTION TO PURCHASE.
10.1 ADFlex shall have the right in its sole and absolute discretion to
purchase all of the shares then owned by Hana at any time from and after the
Closing. To exercise such right, ADFlex shall give written notice to Hana, which
notice shall set forth in reasonable detail a computation of the purchase price
of the shares.
10.2 The purchase price for the shares to be acquired by ADFlex from
Hana shall be the net income of the Company for the most recent fiscal year as
certified by the Company's independent auditors multiplied by 6.5 and further
multiplied by a fraction, the numerator of which is the number of shares then
owned by Hana and the denominator of which is the total number of shares then
outstanding (the "Formula Purchase Price"). Notwithstanding the foregoing: (i)
if ADFlex elects pursuant to this Section 10 to purchase Hana's shares in the
first year after the Closing Date, the purchase price shall be the greater of
the Formula Purchase Price or $2 million (U.S.), including as part of such $2
million all prior dividends and other distributions received by Hana on account
of its shares in the Company (the "Prior Distributions"); and (ii) if ADFlex
elects pursuant to this Section 10 to purchase Hana's shares in the second year
after the Closing Date, the purchase price shall be the greater of the Formula
Purchase Price or $4 million (U.S.), including as part of such $4 million the
Prior Distributions. Such purchase price shall be paid on the closing date
specified in ADFlex's notice of election of the option to purchase described in
this Section 10, which shall be not later than 60 days after the date of such
notice, at the sole option of ADFlex (i) in full in immediately available funds,
or (ii) 25% in immediately available funds at the closing, an additional 25% in
immediately available funds not later than three months following the closing
date, and the balance pursuant to a promissory note bearing interest at the
applicable federal rate published by the Internal Revenue Service payable not
later than twelve months following the closing date. To illustrate the
foregoing, if the Company's net income for its first year of operations is
$500,000, the Company has paid dividends of $100,000 from inception to Hana, and
ADFlex elects to purchase the shares from Hana during the 18th month following
the closing, the purchase price for the shares shall be $4 million, of which
$100,000 was paid through distributions from the Company and of which the
remaining $3.9 million shall be paid by ADFlex as provided in this Section 10.2.
10.3 At the closing, Hana shall deliver to ADFlex certificates
representing all of the shares then owned by Hana, free and clear of any and all
pledges, liens, claims and
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encumbrances whatsoever, against payment of the purchase price for such shares
by ADFlex; provided, however, that if ADFlex elects to pay a portion of the
purchase price for such shares by the promissory note described in Section 10.2,
the shares so purchased shall be deemed pledged by ADFlex to Hana to secure
payment of the note. ADFlex and Hana each agree to deliver to the other at the
closing a full and complete release.
10.4 Whenever in this Agreement ADFlex elects to purchase the shares of
Hana, the Director appointed by Hana and the General Manager shall also tender
their shares to ADFlex for purchase at the price of $1.00 per share.
11. REPRESENTATIONS AND WARRANTIES.
11.1 ADFlex represents and warrants to Hana as follows:
11.1.1 ADFlex is a corporation duly organized, validly
existing and in good standing under the laws of the State of Delaware, United
States of America, and has all requisite corporate power and authority to own
its properties, to carry on its business as it is now being conducted and to
execute and deliver this Agreement and the other Operative Agreements to which
it is a party and perform its obligations hereunder and thereunder.
11.1.2 The execution, delivery and performance of this
Agreement has been, and the execution, delivery and performance of the other
Operative Agreements will be, duly authorized by all requisite corporate action
on the part of ADFlex.
11.1.3 The execution, delivery and performance of this
Agreement and the other Operative Agreements to which ADFlex is a party will not
(i) violate any provision of the Certificate of Incorporation or Bylaws of
ADFlex, (ii) violate any provision of applicable law or regulation or any writ,
judgment, order or decree of any court or governmental authority applicable to
ADFlex, or (iii) violate or cause a default under any mortgage, loan agreement,
indenture or other contract, agreement, license or commitment to which ADFlex is
a party or by which ADFlex is bound which would have a material adverse effect
on the ability of ADFlex to consummate the transactions contemplated by the
Operative Agreements.
11.1.4 This Agreement and the other Operative Agreements to
which ADFlex is a party have been or at the Closing will be duly executed and
delivered by ADFlex and constitute, or at the Closing will constitute, legal,
valid and binding obligations of ADFlex, enforceable against ADFlex in
accordance with their respective terms, except that: (i) enforceability thereof
may be limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, arrangement, or laws or court decisions affecting the enforcement of
creditors' rights generally; and (ii) enforceability of certain rights and
remedies may be restricted by the doctrines of waiver, estoppel, election of
remedies, commercial reasonableness or by the application of other equitable
principles, whether remedies are sought in equity or at law.
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If ADFlex nominates a wholly-owned subsidiary to hold the shares of the Company
as permitted by Section 17.1 hereof, the above representations and warranties
shall be deemed to also be made by such nominee.
11.2 Hana represents and warrants to ADFlex as follows:
11.2.1 Hana is a public limited company duly organized,
validly existing and in good standing under the laws of Thailand, and has all
requisite corporate power and authority to own its properties, to carry on its
business as it is now being conducted and to execute and deliver this Agreement
and the other Operative Agreements to which it is a party and perform its
obligations hereunder and thereunder.
11.2.2 The execution, delivery and performance of this
Agreement has been, and the execution, delivery and performance of the other
Operative Agreements to which it is a party will be, duly authorized by all
requisite corporate action on the part of Hana.
11.2.3 The execution, delivery and performance of this
Agreement and the other Operative Agreements to which Hana is a party will not
(i) violate any provision of the Memorandum or Articles of Association of Hana,
(ii) violate any provision of applicable law or regulation or any writ,
judgment, order or decree of any court or governmental authority applicable to
Hana, or (iii) violate or cause a default under any mortgage, loan agreement,
indenture or other contract, agreement or commitment to which Hana is a party or
by which Hana is bound which would have a material adverse effect on the ability
of Hana to consummate the transactions contemplated by the Operative Agreements.
11.2.4 This Agreement and the other Operative Agreements to
which Hana is a party have been or at the Closing will be duly executed and
delivered by Hana and constitute, or at the Closing will constitute, legal,
valid and binding obligations of Hana, enforceable against Hana in accordance
with their respective terms, except that: (i) enforceability thereof may be
limited by bankruptcy, insolvency, fraudulent transfer, reorganization,
moratorium, arrangement, or laws or court decisions affecting the enforcement of
creditors' rights generally; and (ii) enforceability of certain rights and
remedies may be restricted by the doctrines of waiver, estoppel, election of
remedies, commercial reasonableness or by the application of other equitable
principles, whether remedies are sought in equity or at law.
11.2.5 Hana has all requisite licenses, permits and
approvals necessary to operate the facility as described in the Facilities
Agreement (the "Facility") and to provide the services described in the
Administrative Agreement for the purposes described herein and therein.
If Hana nominates a wholly-owned subsidiary to hold the shares of the Company as
permitted by Section 17.1 hereof, the above representations and warranties shall
be deemed to also be made by such nominee.
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12. CONDITIONS TO CLOSING; THE CLOSING; TERMINATION OF THIS
AGREEMENT; POST CLOSING COVENANT.
12.1 The Closing of the transactions contemplated by this Agreement
shall take place at the offices of the Company to be established at the Facility
on the fifth Business Day following the satisfaction of the conditions described
in this Section 12.
12.2 The obligations of ADFlex and Hana to execute and deliver the
Operative Agreements (other than this Agreement) to which they are parties, are
subject to the satisfaction or waiver, as of the Closing Date, of the following
conditions:
12.2.1 No injunction restraining or preventing the
consummation and performance of this Agreement and the other Operative
Agreements shall be in effect, and no litigation shall be pending or threatened
by or before any governmental authority that would restrain or prevent the
execution or performance of this Agreement and the other Operative Agreements.
12.2.2 The parties to each Operative Agreement (other than
this Agreement) shall have executed and delivered all such other Operative
Agreements, each of which shall be in full force and effect.
12.2.3 The Board of Investment shall have granted promotion
to the Company's project on terms and conditions satisfactory to ADFlex. ADFlex
acknowledges that it is aware of the present Zone 3 privileges and that such
privileges are satisfactory to ADFlex.
12.3 The obligations of ADFlex to execute and deliver the Operative
Agreements (other than this Agreement) to which it is to be a party are subject
to the satisfaction or waiver, as of the Closing Date, of the following
conditions:
12.3.1 Hana shall have delivered to ADFlex a Bring Down
Certificate dated the Closing Date as to the continuing accuracy of Hana's
representations and warranties made herein.
12.3.2 Hana shall have delivered to ADFlex a certificate to
the effect that Hana is in compliance with all of its covenants set forth in
this Agreement.
12.3.3 ADFlex shall be satisfied in its sole and absolute
judgment as to any due diligence investigation it conducts concerning Hana or
the business of the Company.
12.4 The obligations of Hana to execute and deliver the Operative
Agreements (other than this Agreement) to which it is to be a party are subject
to the satisfaction or waiver, as of the Closing Date, of the following
conditions:
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12.4.1 ADFlex shall have delivered to Hana a Bring Down
Certificate dated the Closing Date as to the continuing accuracy at the Closing
of the representations and warranties made by ADFlex herein.
12.4.2 ADFlex shall have delivered to Hana a certificate to
the effect that ADFlex is in compliance with all of its covenants set forth in
this Agreement.
12.5 Promptly following the Closing, Hana shall use its best efforts to
obtain all requisite licenses, permits and governmental approvals necessary for
compliance with the terms and conditions of this Agreement and the other
Operative Agreements and for the conduct of the business by the Company in
Thailand, and ADFlex shall reasonably cooperate in connection with the same. At
such time as such licenses, permits and approvals have been obtained, ADFlex,
Hana and the Directors shall pay in the remaining 75% of their respective
capital contributions to the Company in the amounts set forth in Section 4.1.
12.6 This Agreement may be terminated at any time prior to the Closing
Date (i) by the mutual consent of ADFlex and Hana, (ii) by either ADFlex or Hana
if the Closing shall not have taken place by October 1, 1996, or (iii) by either
ADFlex or Hana if the other party hereto shall, contrary to the terms of this
Agreement, intentionally fail or refuse to consummate the transactions
contemplated hereby, after affording such defaulting party a ten day period
after notice in which to cure. After the Closing, either ADFlex or Hana may
terminate this Agreement upon 30 days' written notice if the necessary licenses,
permits and governmental approvals in Section 12.5 have not been obtained by
July 1, 1996. In the event of termination of this Agreement, this Agreement
shall forthwith become wholly void and of no further force and effect and, other
than in the event of termination pursuant to clause (iii), there shall be no
liability on the part of ADFlex, Hana or their respective officers, directors or
Affiliates.
13. CONFIDENTIALITY; NO PUBLIC ANNOUNCEMENTS.
13.1 Neither ADFlex nor Hana nor their respective officers, directors,
employees or agents shall divulge to any third person (other than those whose
province it is to know it or with proper authority) or use for any purpose any
of the trade secrets, know-how or confidential or proprietary information
relating to the other except pursuant to the License Agreements in furtherance
of the business of the Company; provided, however, that either party may divulge
any such information (i) in a proceeding to enforce its rights under this
Agreement, or (ii) as required by applicable law or the rules and regulations of
a securities exchange or automated quotation system. This restriction shall
continue to apply after the expiration or termination of this Agreement and the
other Operative Agreements without limit in point of time but shall cease to
apply to secrets or information which come into the public domain through no
fault of the party concerned.
13.2 ADFlex and Hana will consult with each other before issuing any
press release or other public statements with respect to the transactions
contemplated by this Agreement, and shall not issue any such press release or
make any such public statement prior to such
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consultation except as may be required by applicable law, court process or by
obligations pursuant to any listing agreement with any national securities
exchange or automated quotation system upon which ADFlex or Hana, as the case
may be, has a class of registered equity securities.
14. NON-COMPETITION AND RELATED RESTRICTIONS.
14.1 Except as provided in Sections 14.2 and 14.3, neither ADFlex nor
Hana shall, while this Agreement and the other Operative Agreements shall remain
in effect, and ADFlex and Hana shall not, for a period of two years following
the termination of this Agreement, do or permit any of the following without the
prior written consent of the other:
14.1.1 Either individually or on behalf of any other person
or entity directly or indirectly carry on or be interested (except as the
holder, for investment, of securities dealt on a recognized stock exchange not
exceeding 3% of the total outstanding amount thereof) in any business competing
in the Territory with the other party;
14.1.2 Solicit or endeavor to solicit in the Territory a
customer of the other or any of its Affiliates for the purpose of offering to
that customer goods or services similar to or competing with those of the other
party or its Affiliates;
14.1.3 Solicit or entice away, or endeavor to solicit or
entice away, any director, officer or employee of the other or of any Affiliate
of such other party or the Company; or
14.1.4 Cause or permit any person or entity directly or
indirectly under its control to do any of the acts or things specified above.
Notwithstanding the foregoing, the restrictions in Section 14.1.1 shall not
apply to ADFlex following the termination of this Agreement with respect to flex
and flex-related assembly businesses and operations in the Territory, but shall
apply with respect to all other businesses competing in the Territory with Hana.
14.2 If ADFlex acquires the shares owned by Hana pursuant to Section 10
hereof and vacates the Facility at any time within the two-year period following
the Closing Date, then the restrictions set forth in Section 14.1 shall cease to
apply to Hana at such time.
14.3 The restrictions set forth in Section 14.1.3 shall not apply
following the termination of this Agreement with respect to any current
director, officer or employee of Hana who is assigned or transferred to the
Company.
14.4 ADFlex shall provide the Company with flexible circuit assembly
business from time to time as selected by ADFlex in its discretion. Hana hereby
grants to the Company a right of first refusal on all assemblies involving
flexible circuits obtained by Hana on and after the
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Closing Date. The Company shall either exercise or decline to exercise such
right from time to time within 14 days after receiving written notice from Hana
describing the proposed assembly contract in reasonable detail. If the Company
does not affirmatively respond to a proposed assembly contract within such
14-day period, the Company shall be deemed to have rejected the assembly
contract and Hana shall be free to engage in the same for its own account.
14.5 Each undertaking in this Section 14 shall be treated as
independent of the other undertakings so that, if one or more is held to be
invalid as an unreasonable restraint of trade or for any other reason, the
remaining undertakings shall be valid to the extent that they are not affected.
14.6 While the undertakings in this Section 14 are considered by the
parties to be reasonable under all the circumstances, if one or more is held
invalid as an unreasonable restraint of trade or for any other reason, but would
have been held valid if part of the wording had been deleted, the period reduced
or the range of activities or territory dealt with reduced in scope, the
undertaking shall apply with such modification as may be necessary to make it
valid.
14.7 This Section 14 shall not apply if this Agreement is terminated
under Section 12.6.
15. MEDIATION AND ARBITRATION.
15.1 If a dispute, controversy or claim arises out of or relates to
this Agreement or the breach, termination or validity hereof, and if such
dispute, controversy or claim cannot be settled through direct good faith
discussions between the parties, the parties shall first endeavor to settle the
dispute in an amicable manner by mediation under the Commercial Mediation Rules
of the American Arbitration Association ("AAA") before having recourse to
arbitration. If either party believes, for any reason whatsoever, after the
mediation process has begun that it will not lead to a satisfactory resolution
of the matter, it may give written notice of that belief to the other party, and
proceed to arbitration pursuant to the following provisions of this Section 15.
15.2 To the extent not settled as provided in Section 15.1, any
dispute, controversy or claim arising out of or relating to this Agreement or
the breach, termination, or validity hereof, shall be settled by arbitration in
accordance with the International Arbitration Rules of the AAA in effect on the
date of this Agreement. The arbitration shall be the sole and exclusive forum
for resolution of the dispute, controversy or claim and the award shall be final
and binding to the extent permitted by law.
15.3 There shall be three arbitrators, each of whom shall be
disinterested in the dispute, controversy or claim and shall have no connection
with either party. ADFlex and Hana shall each name an arbitrator and shall
promptly, but no later than 30 days after delivery of the arbitration demand,
file with the AAA a notice of appointment as provided in the International
Arbitration Rules specified above. The two arbitrators so chosen shall select a
third arbitrator
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who shall act as chairperson of the arbitration. If either party entitled to
name an arbitrator should abstain from doing so, or should the two arbitrators
named as provided above fail to select a third arbitrator, then at the request
of either party, the President of the AAA shall select an arbitrator to fill the
vacant position within ten days of such request.
15.4 The place of arbitration shall be Chandler, Arizona. The
arbitration shall be conducted in the English language and any foreign language
documents presented at such arbitration shall be accompanied by an English
translation thereof. The arbitrators shall apply the law of Arizona. The parties
consent that the United States District Court for the District of Arizona in
Phoenix, Arizona and courts in Thailand shall each have non-exclusive
jurisdiction with respect to all aspects of the enforcement of the arbitration
provisions of this Agreement. Judgment upon the award rendered may be entered
into any court having jurisdiction, or application may be made to such court for
judicial recognition of the award or an order of enforcement thereof, as the
case may be.
15.5 Arbitration awards rendered pursuant to this Section 15 shall be
paid in United States dollars.
16. GOVERNING LAW.
16.1 This Agreement shall be construed, enforced and governed by the
laws of the State of Arizona without regard to principles of conflicts of law.
17. ASSIGNMENT.
17.1 No party shall assign or transfer, or purport to assign or
transfer, any of its rights or obligations under this Agreement or any other
Operative Agreement without the prior written consent of the other party;
provided, however, that ADFlex and Hana shall each have the right to nominate a
wholly-owned subsidiary entity to hold their respective shares of the Company
described herein.
17.2 Except as set forth in this Section 17, this Agreement shall be
binding upon and shall inure to the benefit of the successors and permitted
assigns of the respective parties hereto.
18. WAIVER, FORBEARANCE AND VARIATION.
18.1 The rights of the parties under this Agreement shall not be
prejudiced or restricted by any indulgence or forbearance extended by one party
to the other party. No waiver by either party in respect of a breach shall
operate as a waiver in respect of any subsequent breach.
18.2 This Agreement shall not be varied, cancelled or modified unless
the variation, cancellation or modification is expressly agreed to in writing by
a duly authorized representative of each party.
12
14
19. SEVERABILITY.
19.1 If any provision of this Agreement is found by a court or other
competent authority to be void or unenforceable, it shall be deemed to be
deleted from this Agreement and the remaining provisions shall continue to
apply. The parties shall negotiate in good faith in order to agree to the terms
of a mutually satisfactory provision to be substituted for the provision found
to be void or unenforceable.
20. MISCELLANEOUS PROVISIONS.
20.1 This Agreement and the other Operative Agreements constitute the
entire agreement between the parties hereto with respect to the subject matter
hereof and thereof and supersede all prior oral and written discussions and
understandings.
20.2 Any notice, advice, election, request, or order, demand or other
direction required or permitted to be given under this Agreement shall be in
writing and in the English language, and (unless some other notice giving the
same is specified or accepted in writing by the recipient) shall be effective
(i) when personally delivered during normal business hours to the addressee at
the address designated for such delivery, (ii) on the date of receipt specified
on any return receipt if it shall have been deposited in the mails, certified or
registered with return receipt requested and postage thereon fully prepaid,
addressed to such address, or (iii) on the day it shall have been given by
facsimile transmission (with written confirmation of receipt) to such address,
whichever the foregoing shall first occur. Until otherwise specified by notice,
the addresses for any such notice, advise, election, request, order, demand or
other direction shall be:
If to ADFlex:
ADFlex Solutions, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Hana:
Hana Microelectronics Public Co. Ltd.
c/o ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇//▇ ▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
T. ▇▇▇ ▇▇▇▇▇, ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Telephone: 66 2/▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇▇/9
Facsimile: 66 2/552-4906, 551-1299
13
15
20.3 The headings in this Agreement are inserted for convenience only
and do not affect its construction.
20.4 In the event of any ambiguity or conflict arising between the
terms of this Agreement and the terms of any other Operative Agreement, the
terms of this Agreement shall prevail as between the parties.
20.5 In the event of any ambiguity or conflict arising between the
terms of this Agreement and the Articles of Association, the terms of this
Agreement shall prevail as between the parties, and the parties shall amend the
Articles of Association accordingly.
20.6 Time is of the essence of this Agreement.
20.7 ADFlex and Hana represent to each other that neither has incurred
any obligation or liability, contingent or otherwise, for brokerage or finder's
fees or agent's commissions or other like payment in connection with this
Agreement, the other Operative Agreements or the transactions contemplated
hereby or thereby.
21. COSTS.
21.1 Except as provided in Section 2.1 hereof, ADFlex and Hana shall
each bear their own costs in connection with the negotiation, preparation,
execution, delivery and performance of this Agreement.
22. NOT A PARTNERSHIP.
22.1 None of the provisions of this Agreement shall be deemed to
constitute or create a partnership between ADFlex and Hana and neither ADFlex
nor Hana has the authority to bind the other in any way except as expressly
contemplated herein.
22.2 ADFlex and Hana hereby expressly agree and acknowledge that each
of them (either directly, or through Affiliates) is involved in transactions,
investments and business ventures and undertakings of every nature, which
include, without limitation, activities which are associated with flexible
circuit manufacture and assembly (all such investments and activities being
referred to hereinafter as the "Independent Activities").
22.3 Except as expressly provided in Section 14 hereof, nothing in this
Agreement shall be construed to: (i) prohibit any party or its Affiliates from
continuing, acquiring, owning or otherwise participating in any Independent
Activity that is not owned or operated by the Company, even if such Independent
Activity is or may be in competition with the Company; or (ii) require any party
to allow the Company or the other party to participate in the ownership or
profits of any such Independent Activity. To the extent any party would have any
rights or claims against the other party as a result of the Independent
Activities of such party or its
14
16
Affiliates, whether arising by statute, common law or in equity, the same are
hereby waived with respect to the operation and business of the Company.
22.4 ADFlex and Hana hereby expressly acknowledge, represent and
warrant that they are sophisticated businesses and investors, they understand
the terms, conditions and waivers set forth in this Agreement (including without
limitation Sections 14 and 22 hereof), and that the provisions of this Agreement
are reasonable, taking into account the relative sophistication and bargaining
position of the parties.
23. THIRD PARTY BENEFICIARIES.
23.1 Nothing in this Agreement, express or implied, is intended to
confer any rights or remedies under or by reason of this Agreement on any
persons other than the parties to it, nor is anything in this Agreement intended
to relieve or discharge the obligation or liability of any third person to
either party to this Agreement.
IN WITNESS WHEREOF, parties hereto have caused this Agreement to be
duly executed as of the day and year first above written.
ADFlex Solutions, Inc., a Delaware corporation
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇
-------------------------
Title: Chairman, President & CEO
-------------------------
Hana Microelectronics Public Co., Ltd., a
Thailand public limited company
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
-------------------------
Title: Executive Vice Chairman,
President, Chief Executive
Officer & C.O.O.
-------------------------
15
17
EXHIBIT A
ARTICLES OF ASSOCIATION
OF
ADFlex (Thailand) Limited
***************
CHAPTER I
General
1. These regulations shall be called the Articles of ADFlex (Thailand) Limited.
2. Unless otherwise specified, the "Company" shall mean ADFlex (Thailand)
Limited.
3. Unless otherwise stipulated, the provisions in the Civil and Commercial
Code regarding limited companies shall apply.
4. Any addition to or amendment of these Articles or the provisions in the
Memorandum of Association must be approved by a special resolution of the
general meeting.
CHAPTER II
Shares and Shareholders
5. The Company's shares shall consist of Ordinary Shares entered in a named
certificate and shall be fully paid-up in money.
6. The shares of the Company shall be divided as follows:
(1) Class A shares, i.e., shares numbered 1 to 6,000,000 inclusive
(ADflex).
(2) Class B shares, i.e., shares numbered 6,000,001 to 7,500,000
inclusive (Hana).
Unless otherwise provided by these Articles, all shares shall have the same
rights and status.
7. Transfers of shares, assignments, pledges, or other dispositions of shares
require prior consent by the Board of Directors of the Company. Transfers
of shares shall be effected by amending the register of shareholders.
8. In the case when a shareholder dies or is adjudged bankrupt, the recipient
of his estate or administrator of his estate, or person who is entitled to
the shares must produce legitimate evidence before the Company, and when
the Board of Directors is satisfied
18
with the validity of such evidence and that it is not contrary to the
Articles of Association of the Company, the person upon whom the shares
devolved shall be registered as a shareholder of the Company.
*[9. (1) Class B Shareholder may not transfer, sell or otherwise dispose of
any shares of the Company without the prior consent of Class A
Shareholder. In the event that Class B Shareholder desires to sell any
shares, Class B Shareholder shall give Class A Shareholder written
notice of such fact at least 6 months in advance. In the event of a
proposed sale of shares, Class B Shareholder shall first offer to
Class A Shareholder the shares that desired to sell to any third person.
(2) Class B Shareholder shall notify Class A Shareholder in writing of
its desire to sell shares of the Company, with the notice setting forth
(i) the number of shares Class B Shareholder proposes to sell, (ii) a
statement that Class B Shareholder has received a bona fide offer to
purchase the shares, and the Class B Shareholder is willing to accept
the offer, (iii) the name and address of the offeror and the terms of
the offer, and (iv) an offer ("Offer") to sell the shares to Class A
Shareholder at the same price and on the same terms as have been
offered to Class B Shareholder. At the request of Class A Shareholder,
Class B Shareholder shall provide a copy of the Offer received by it, in
addition to such financial information or other evidence as may be
reasonably requested evidencing the ability and intent of the bona fide
offeror to complete the proposed purchase transaction.
(3) Class A Shareholder shall have thirty (30) days after the receipt of
the notice within which to accept the Offer. Class A Shareholder may
not elect to purchase less than all of the shares offered. If Class A
Shareholder accepts the Offer, Class A Shareholder shall have twenty
(20) days after its delivers notice of such acceptance within which to
purchase the shares on the terms and subject to the conditions set forth
in the Offer.
(4) If written consent to a transfer pursuant to this Article is
granted, or if the option to purchase is not exercised by Class A
Shareholder, Class B Shareholder shall be free for a period of sixty
(60) days after the consent, the failure exercise the purchase option,
or written notification by Class A Shareholder of its rejection of the
Offer, or until the expiration of the original offer, whichever first
occurs, to sell, transfer, or otherwise dispose of the shares: provided
that in the event of a sale, such sale shall be made only for
consideration not less than, and on terms no more favorable to the buyer
than, those specified in Class B Shareholder's notice. Any sale or
transfer not made in accordance with the terms of this Article shall
automatically be deemed null and void.]
CHAPTER III
General Meetings
10. A general meeting of Shareholders shall be held within six months after
registrations and shall subsequently be held at least once every twelve
months. Such meeting is called an "Ordinary Meeting". All other
general meetings are called "Extraordinary
19
General Meetings". The Board of Directors may summon Extraordinary
General Meetings, whenever they think fit.
11. Seven (7) days notice of every general meeting shall be given to all
shareholders whose names appear in the register of shareholders. Notice
to shareholders in Thailand shall be given by registered post, and
notice to shareholders abroad shall be sent by telefax and confirmed by
airmail at least ______( ) days prior to the date of the meeting. The
notice shall specify the place, the day and the hour of the meeting, and
the nature of business to be transacted.
12. Ordinary Meetings shall be summoned for the purpose of:
(1) Reviewing the report of the Board of Directors covering work done
during the previous period and suggestions as to future courses
of action.
(2) Considering the Balance Sheet and the Profit and Loss Account of
the preceding fiscal year and approving the same.
(3) Approving payment of dividends and remunerations to directors and
the apportionment of amounts as reserve capital.
(4) Election of new directors in place of those who must retire on
the expiration of their terms.
(5) Appointment of an auditor and the fixing of his/her remuneration.
(6) Other business.
13. Shareholders or their authorized representatives representing at least
___________ per cent (%) of the Company's shares shall constitute a
quorum for all general meetings.
14. In casting votes at a general meeting, each shareholder of ordinary
shares shall have one vote for each share of which he is the holder.
All voting shall be conducted by poll. All ordinary resolutions shall
require a _______per cent (%) of the votes except as provided below.
Decisions on the following matters shall be made by special resolution
only, which requires approval by 75% of the votes at a general meeting,
and 66-2/3% of the votes at a subsequent general meeting according to
procedures prescribed in the Civil and Commercial Code:
(1) To amend the Memorandum or Articles of Association.
(2) To increase registered capital.
(3) To reduce registered capital.
(4) To dissolve the Company.
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(5) To amalgamate with another company.
15. Any shareholder may vote by proxy, provided the power given to such proxy
is in writing. The instrument appointing a proxy shall be dated and signed
by the shareholder and shall contain the following particulars:
(1) The number of shares held by the shareholders.
(2) The name of the proxy.
(3) The meeting or meetings or the period for which the proxy is
appointed.
A Shareholder being a juristic person registered outside of Thailand may
appoint a proxy by telex and he same shall be accepted if it purports to
be sent by an officer of that juristic person. The appointment of proxy by
telex shall be confirmed in due course by an instrument under seal or
under the hand of an officer of the juristic person duly authorized.
Subject to the foregoing, instruments appointing proxies shall be in such
form and be executed in such manner as the Board of Directors may from
time to time determine or in particular cases accept.
If a proxy proposes to vote at a meeting, the instrument of appointment of
the proxy must be deposited with the Chairman at or before the beginning
of that meeting.
16. The Chairman of the Board of Directors shall preside at every general
meeting. If there is no such Chairman or if he is not present within
fifteen (15) minutes after the time appointed for holding the meeting, the
shareholders present may elect one of the other directors to be Chairman.
17. The Chairman may postpone a general meeting with the consent of the
shareholders. But in the succeeding meeting no other business may be
discussed except that pending from the previous meeting.
CHAPTER IV
Directors and Auditors
18. A Board of Directors shall be elected by the general meeting to carry out
the Company business under the control of the general meeting of
Shareholders and subject to these Articles.
A director need not be a shareholder in the Company.
A director can be removed for any reason by the general meeting.
A director shall not be personally liable for any acts or omissions except
those involving fraud or willful wrongdoing.
21
19. The Company's directors shall be five (5) in number.
At all times, the directors shall include three (3) directors who have been
nominated by a simple majority (based on voting rights) of the Class A
Shareholder, and two (2) directors who have been nominated by a simple
majority (based on voting rights) of Class B Shareholder.
20. The Board of Directors may elect one of the directors as Chairman.
21. At the first Ordinary Meeting after the registration of the Company and at
the first Ordinary Meeting in every subsequent year, one-third of the
directors, or, if their number is not a multiple of three, then the number
nearest to one-third must retire from office. A retiring director is
eligible for re-election.
22. Any vacancy among the members of the Board of Directors occurring
otherwise than under Article 18 or 21 may be filled by the Board of
Directors upon nomination by the shareholders which nominated the director
whose office is vacated. Any person so appointed shall retain office only
during such time as the director whom he replaces would have been entitled
to retain the same.
23. Any director may vote by proxy, provided the power given to such proxy is
in writing. An instrument appointing a proxy shall specify the meeting or
meetings or the period for which the proxy is appointed and shall be in
such form and be executed in such manner as the Board of Directors may from
time to time determine.
24. Regular meetings of the Board of Directors shall be held at such times and
places as the Board may determine. In addition, special meetings of the
Board may be called by the Chairman or by the Managing Director at the
registered office of the company or such other place as a majority of the
directors may agree. Not less than seven (7) days notice of a special
meeting shall be given to each director by letter, telefax or telex as
appropriate. Such notice to any director may be waived or shortened by that
director and shall be deemed waived by his presence at the meeting.
25. Whenever any notice whatsoever is required to be given to any director or
whenever a matter is submitted at any meeting of directors and such matters
were omitted from the proposed agenda for such meeting in the notice
therefore, a written waiver of such notice or of such omission, signed by
the person or persons entitled to any such notice whether before or after
the time of the meeting stated herein, shall be deemed the equivalent to
the timely giving of such notice or the including of such matter in the
proposed agenda, as the case may be.
26. At all meetings of the Board of Directors, a quorum shall consist of a
majority of directors. A proxy appointed under Article 23 shall be counted
in determining the presence of a quorum.
27. All actions, appointments and decisions of the Board of Directors shall be
decided by a simple majority vote.
22
The Board of Directors may adopt a resolution without holding a meeting
if all directors approve the action by placing their signatures on the
original copy of the resolution. Any such resolution shall be binding
on the Company only after all of the directors have signed the
resolution. The duly signed resolution shall be delivered to the
Chairman and placed in the Minutes Book of the Company. Such resolution
may consist of several documents in the like form each signed by one or
more of the directors.
28. An auditor shall be elected and his remuneration fixed every year at an
Ordinary Meeting. A retiring auditor is eligible of a re-election. No
Company's director, representative nor employee may be elected as
auditor during the period of his office.
CHAPTER V
Books and Accounts
29. The annual accounting year of the Company shall commence and terminate
on the 1st January and 31st of December respectively.
30. The Company's books and accounts shall be maintained according to
international accounting practice and procedures generally acceptable
in Thailand.
31. The directors shall cause true and complete accounts to be kept:
(1) of the sums received and expended by the Company and of the
matters in respect of which each receipt or expenditure takes
place;
(2) of the assets and liabilities of the Company, and
(3) of the shareholder's equity and capital reserves.
32. The directors shall make a balance sheet at least once in every twelve
months, at the end of such twelve months as constitute the accounting
year of the Company. It must contain a summary of the assets and
liabilities of the Company and a profit and loss account.
33. The directors shall have the balance sheet examined by the company's
auditor and submitted to a general meeting for adoption within four
months after the end of the accounting year. A copy of the balance
sheet must be sent to every person entered in the register of
shareholders at least three (3) days before the general meeting.
34. The directors must cause minutes of all proceedings and resolutions of
meeting of shareholders and directors to be duly entered in the books
which shall be kept at the registered office of the Company. Any such
minutes signed by the Chairman of the meeting at which such resolutions
were passed or proceedings held, or by the Chairman of the next
succeeding meeting, are presumed correct evidence of the matters therein
contained, and all resolutions and proceedings of the meeting so
recorded in the minutes are presumed to have been duly passed.
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CHAPTER VI
Dividends and Reserves
35. Except for interim dividends, as provided in Article 41, no dividend may be
declared except by a resolution passed in a general meeting.
Notice of any dividend that may have been declared shall be published at
least twice in a local paper or given by letter to each shareholder whose
name appears in the register of shareholders.
36. The Company must appropriate to a reserve fund at each distribution of
dividends, at least one-twentieth of the profits, until the reserve fund
reaches one-tenth of the capital of the Company. Notwithstanding the
foregoing, the director may submit to the general meeting a resolution to
appropriate amounts to other reserve funds as may seem desirable in
executing the Company's business.
37. The Board of Directors may from time to time pay to the shareholders such
interim dividends as are recommended by the Board of Directors to be
justified by the profit of the Company.
CHAPTER VII
Increases in Registered Capital
38. All new shares issues by the Company, must be offered to the shareholders
in proportion to the shares held by them.
Such offer must be made by notice specifying the number of shares to which
the shareholder is entitled, and fixing a date after which the offer, if
not accepted shall be deemed to be declined.
After such date or on the receipt of an intimation from the shareholder
that he declines to accept the shares offered, the director may offer
such shares for subscription to the other shareholder or subscribe for
such shares himself.
**************
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(Draft)
MEMORANDUM OF ASSOCIATION
OF
ADFLEX (THAILAND) LIMITED
****************
The contents of the Memorandum of Association of the Company are as follows:
Clause 1. The name of the Company is "ADFLEX (THAILAND) LIMITED".
Clause 2. The registered office of the Company will be situated in
[insert locations, e.g., Bangkok].
Clause 3. The objects for which the Company is to be established total 12
in number, as set forth on the attached form.
Clause 4. The liability of each shareholder is limited to the amount, if
any, unpaid on the shares held by him.
Clause 5. The capital of the Company shall be Baht 75,000,000 (Seventy-
Five Million), divided into 7,500,000 (Seven Million Five
Hundred Thousand) shares of Baht 10 (Ten) each.
Clause 6. The name, address, occupation, signature and number of shares
subscribed by each of the 7 promoters are as follows:
(1) I, ▇▇. ▇▇▇▇▇ Phancharoenworakul; Occupation: Lawyer; Age: 45;
Residing at: ▇/▇▇ ▇▇▇ ▇▇, ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇,
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Talingchan, Bangkok.
Subscribed: 1 share. (Signed) _______________________________
(2) I, ▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇; Occupation: Lawyer; Age: 33;
Residing at: ▇▇. ▇▇/▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇ ▇▇ (▇▇▇ ▇▇▇▇▇▇) Suksawar Road,
Tambol Krunai; Amphur Prapadaeng, Changwad Samutprakarn.
Subscribed: 1 share. (Signed) _______________________________
(Signed) _________________ Promoter who applied
( ) for the Registration
--------------------------------------------------------------------------------
Page 1 of the total 3 pages (Signed) Registra
Document attached to the ---------------------
( )
25
Memorandum of Association of ADFlex (Thailand) Limited Page 2
--------------------------------------------------------------------------------
(3) I, ▇▇. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇; Occupation: Lawyer; Age 29;
Residing at: ▇▇. ▇▇▇/▇ ▇▇▇ ▇▇▇▇▇▇ ▇▇, ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇ Dusit, Bangkok
Subscribed: 1 share. (Signed)________________________
(4) I, Miss Chadaporn Ruangtoowagoon; Occupation: Lawyer; Age 30;
Residing at: ▇▇. ▇▇/▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ Haiya, Amphur
Muang, Changwad Chiengmai
Subscribed: 1 share. (Signed)________________________
(5) I, Miss Prisna Suangwanna; Occupation: Lawyer; Age 31;
Residing at: ▇▇▇/▇ ▇▇▇ ▇, ▇▇▇▇▇▇▇▇ ▇▇. ▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇
Bangkhen, Bangkok
Subscribed: 1 share. (Signed)________________________
(6) I, Mr. Veerapoj Visessinlapanond; Occupation: Lawyer; Age 28;
Residing at: No. ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Happy Land Road, Kwaeng
Klongjun, Khet Bangkapi, Bangkok.
Subscribed: 1 share. (Signed)________________________
(7) I, Mr. Kulchai Chungsathaporn; Occupation: Lawyer; Age 22;
Residing at: ▇▇. ▇▇/▇ ▇▇▇ ▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇
Bangkhen, Bangkok.
Subscribed: 1 share. (Signed)________________________
(Signed)____________________________ Promoter who applied
() for the Registration
--------------------------------------------------------------------
Page 2 of the total 4 pages (Signed)________________Registrant
Document attached to the ( )
application No. ___/___
26
ATTESTATION
I, Mr. Panom Jaisaen; Age: 27 years;
Residing at: ▇▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ Donmuang, Bangkok.
I, ▇▇. ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Age: 28 years;
Residing at: ▇▇▇▇/▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇ Donmuang, Bangkok.
Do hereby certify that the above-mentioned promoters have given their hands in
our presence.
(Signed) ________________________ Witness
(Mr. Panom Jaisaen)
(Signed) ________________________ Witness
(Mr. Yutthapong Poosuwan
This Memorandum of Association is made on
Stamp Duty
Original: 200 Baht
Copy: 5 Baht
(Signed) ________________________ Promoter who applied
() for the Registration
_______________________________________________________________________________
Page 4 of the total 4 pages (Signed) _____________Registrant
Document attached to the ( )
application No. ..../....
27
DETAILS OF OBJECTS
OF
ADFlex (Thailand) Limited
The objectives for which the Company is established are:
1. To design, fabricate and manufacture flexible circuits and related
products, including finishing and assembly of flexible circuits.
2. To render services in finishing and assembly of flexible circuits and
related products.
3. To lease, construct, occupy and operate warehouses, factories, workshops,
laboratories and other facilities relating to the activities described in
(1) and (2) above; and to import, store, sell by wholesale or retail and
export the materials, supplies and products of the Company.
4. To import, buy, hire, hire-purchase, register, sell, sell with right of
redemption, exchange, mortgage, pledge, accept pledge, or otherwise
acquire and dispose of machinery, equipment, parts and tools for the
Company's business.
5. To lease land and other immovable property and to build and own any
construction thereon for use in the Company's business. [to be amended if
BOI grants permission to own land]
6. To apply for, acquire, hold, license, transfer and dispose of patents,
trademarks, copyrights, know-how, tradenames and other intellectual
property rights which are necessary or useful to the Company's business.
7. To contact public bodies, municipalities, localities, and other official
offices in order to acquire rights, permits, concessions and privileges
which are necessary or desirable for the Company's business and to
administer and observe such rights, permits, concessions or privileges.
8. For the Company's business, to borrow and lend money, with or without
interest and with or without security, except in such a way as to
constitute finance or securities company activity, to guarantee the
payment of loans by any natural or juristic person, and accept and give
pledges and other security.
9. To have an interest in any other limited companies or partnerships whose
objectives are similar to or different from those of the Company, and
establish agents, brokers, commission agents and branch offices of the
Company anywhere in the world.
10. To bring and defend actions before any court, submit any dispute to
mediation or arbitration and enter into any agreement or settlement in
carrying out the objectives of the Company.
11. To issue guarantees for the purposes of the Company and its employees to
the Immigration, Customs, Revenue and Police authorities of Thailand, and
to provide bail and security in criminal or civil cases.
12. The Company is empowered to issue shares at or above par value.
28
EXHIBIT B
FACILITIES AGREEMENT
FACILITIES AGREEMENT (the "Agreement") made this ___ day of __________,
1996, by and between ADFlex Thailand Limited, a Thailand private limited company
(the "Company"), Hana Microelectronics Public Co., Ltd., a Thailand public
limited company ("Hana"), and ADFlex Solutions, Inc., a Delaware corporation
("ADFlex").
WITNESSETH:
WHEREAS, Hana and ADFlex have formed the Company pursuant to the Master
Agreement between Hana and ADFlex dated _____________, 1996 (the "Master
Agreement"); and
WHEREAS, the Company engages in the business of finishing and assembly
of flexible circuits and all other activities related thereto in Thailand; and
WHEREAS, Hana owns certain facilities in the ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
suitable or capable of being made suitable for the finishing and assembly of
flexible circuits; and
WHEREAS, Hana desires to provide the facilities to the Company and the
Company desires to use such facilities on the terms and subject to the
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants of the parties hereinafter set forth, it is agreed as follows:
1. DEFINITIONS.
1.1 "Agreement" shall mean this Facilities Agreement.
1.2 "Facilities" shall mean the existing manufacturing area of
approximately 10,000 square feet, common parking, playground and cafeteria, and
such other facilities necessary to support the manufacturing area to be
constructed by Hana in accordance with the provisions of Section 2.1.1, all
owned by Hana and located in the ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇.
1.3 "Lease" shall mean the form of lease between Hana and the Company
attached hereto as Exhibit A.
2. FACILITIES
2.1 Hana covenants to the Company and ADFlex that it shall provide the
Facilities in accordance with the following terms and conditions:
2.1.1 Hana shall lease the Facilities to the Company in
accordance with the terms of this Agreement and the Lease, which Lease shall be
executed by the Parties simultaneously with this Agreement and shall be
effective upon delivery of the Facilities to the Company in accordance with
Section 2.1.2. Hana represents and warrants that the Facilities are or will be,
upon delivery to the Company, comparable in quality to other electronic
29
manufacturing facilities in the ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇. Hana shall be
responsible for preparing the Facilities for occupancy by the Company, including
the construction of additions to the Facilities support structure as necessary
to support the Company's business. Hana shall permit the Company to install
signage on the building to display the Company's name. The Company shall be
responsible for the cost of any additional environmental systems determined to
be necessary for operation of the Company's specific manufacturing processes and
the cost of signage to display the Company's name. All other costs of preparing
the Facilities for occupancy and manufacturing shall be borne by Hana.
2.1.2 Hana shall deliver the Facilities ready for occupancy
and in compliance with Section 2.1.1 and Section 4 not later than October 1,
1996. The Company will notify Hana in writing at least three months prior to the
date the Facilities are required of such start date (the "Start Date").
2.1.3 The Company shall have the option to expand the
Facilities' manufacturing space up to 20,000 square feet. Upon notice from the
Company exercising this option, Hana shall on a best efforts basis endeavor to
expand the Facilities and shall deliver the expanded Facilities ready for
occupancy within four months of receipt of such notice. The Company shall be
responsible for the cost of any additional environmental systems determined to
be necessary for operation of the Company's specific manufacturing processes in
connection with the expansion. All other costs of the expanding the Facilities
shall be borne by Hana.
2.1.4 Hana shall be responsible for the cost of all routine
maintenance and repairs to the Facilities, including the buildings and the
building support equipment. The Company shall report all maintenance and repair
problems in writing to Hana. If Hana does not correct the problem within 30 days
of receipt of written notice from the Company (or such longer time as agreed to
by the Company), the Company may take necessary action to correct the problem
and submit a statement for such services to Hana for payment.
2.2 The Company shall be responsible for the payment of all utilities
required for the Facilities from and after delivery of the Facilities for
occupancy in accordance with Section 2.1.2.
3. PAYMENT.
3.1 Commencing on the Start Date, the Company shall pay Hana $2.00 U.S.
per square foot of manufacturing space per month, which amount shall be paid
monthly to Hana at the address set forth in Section 12.2 or such other address
designated by Hana. ADFlex shall guarantee the payment to Hana by the Company in
accordance with this Section 3.
2
30
4. COMPLIANCE.
4.1 Hana shall ensure that the Facilities, including any additional
construction or expansion, comply with all government codes, rules and
regulations governing land use, zoning, and manufacturing and shall be
responsible for making any required modifications to the Facilities to meet such
codes, rules and regulations. Prior to occupancy by the Company, Hana shall
certify to the Company that the Facilities comply with all applicable government
codes, rules, and regulations for facilities of this kind and for their intended
use.
5. TERM.
5.1 This Agreement will become effective as of the date hereof and will
remain in effect for a period of two years. This Agreement will automatically
renew for additional one year terms unless either party provides notice to the
other of its intent to terminate the Agreement not less than 180 days prior to
the expiration of the initial or any renewal term; provided that for each
renewal term the parties shall negotiate in good faith the payment to made by
the Company pursuant to Section 3.1 hereof, taking into consideration the
effects of inflation and current market conditions.
6. MEDIATION AND ARBITRATION.
6.1 If a dispute, controversy or claim arises out of or relates to this
Agreement or the breach, termination or validity hereof, and if such dispute,
controversy or claim cannot be settled through direct good faith discussions
between the parties, the parties shall first endeavor to settle the dispute in
an amicable manner by mediation under the Commercial Mediation Rules of the
American Arbitration Association ("AAA") before having recourse to arbitration.
If either party believes, for any reason whatsoever, after the mediation process
has begun that it will not lead to a satisfactory resolution of the matter, it
may give written notice of that belief to the other party, and proceed to
arbitration pursuant to the following provisions of this Section 6.
6.2 To the extent not settled as provided in Section 6.1, any dispute,
controversy or claim arising out of or relating to this Agreement or the breach,
termination, or validity hereof, shall be settled by arbitration in accordance
with the International Arbitration Rules of the AAA in effect on the date of
this Agreement. The arbitration shall be the sole and exclusive forum for
resolution of the dispute, controversy or claim and the award shall be final and
binding to the extent permitted by law.
6.3 There shall be three arbitrators, each of whom shall be
disinterested in the dispute, controversy or claim and shall have no connection
with either party. ADFlex and Hana shall each name an arbitrator and shall
promptly, but no later than 30 days after delivery of the arbitration demand,
file with the AAA a notice of appointment as provided in the International
Arbitration Rules specified above. The two arbitrators so chosen shall select a
third arbitrator who shall act as chairperson of the arbitration. If either
party entitled to name an arbitrator should abstain from doing so, or should the
two arbitrators named as provided above fail to select a third arbitrator, then
at the request of either party, the President of the AAA shall select an
arbitrator to fill the vacant position within ten days of such request.
3
31
6.4 The place of arbitration shall be Chandler, Arizona. The
arbitration shall be conducted in the English language and any foreign language
documents presented at such arbitration shall be accompanied by an English
translation thereof. The arbitrators shall apply the law of Arizona. The parties
consent that the United States District Court for the District of Arizona in
Phoenix, Arizona and courts in Thailand shall each have non-exclusive
jurisdiction with respect to all aspects of the enforcement of the arbitration
provisions of this Agreement. Judgment upon the award rendered may be entered
into any court having jurisdiction, or application may be made to such court for
judicial recognition of the award or an order of enforcement thereof, as the
case may be.
6.5 Arbitration awards rendered pursuant to this Section 6 shall be
paid in United States dollars.
7. GOVERNING LAW.
7.1 This Agreement shall be construed, enforced and governed by the
laws of the State of Arizona without regard to principles of conflicts of law.
8. ASSIGNMENT.
8.1 No party shall assign or transfer, or purport to assign or
transfer, any of its rights or obligations under this Agreement without the
prior written consent of the other party.
8.2 Except as set forth in this Section 8, this Agreement shall be
binding upon and shall inure to the benefit of the successors and permitted
assigns of the respective parties hereto.
9. WAIVER, FORBEARANCE AND VARIATION.
9.1 The rights of the parties under this Agreement shall not be
prejudiced or restricted by any indulgence or forbearance extended by one party
to the other party. No waiver by either party in respect of a breach shall
operate as a waiver in respect of any subsequent breach.
9.2 This Agreement shall not be varied, cancelled or modified unless
the variation, cancellation or modification is expressly agreed to in writing by
a duly authorized representative of each party.
10. SEVERABILITY.
10.1 If any provision of this Agreement is found by a court or other
competent authority to be void or unenforceable, it shall be deemed to be
deleted from this Agreement and the remaining provisions shall continue to
apply. The parties shall negotiate in good faith in order to agree to the terms
of a mutually satisfactory provision to be substituted for the provision found
to be void or unenforceable.
4
32
11. FORCE MAJEURE.
11.1 The parties understand and agree that, in the event that an act of
the national or local government (including without limitation currency
restrictions), or war conditions, or fire, flood or labor trouble or any other
circumstance beyond the parties' control, should prevent, curtail or delay the
performance by the parties of the provisions of this Agreement, then such
non-performance or delay shall not be considered a breach of this Agreement and
shall be excused, provided that the party so excused shall, promptly after
cessation of the force majeure circumstance, resume performance of its duties
under the Agreement and, to the extent reasonably practicable, perform the
duties previously prevented. Any force majeure circumstance that persists for
more than 180 days will be ground for termination.
12. MISCELLANEOUS PROVISIONS.
12.1 This Agreement and the Master Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersede all prior oral and written discussions and understandings. In the
event of any conflict between the terms of this Agreement and the terms of the
Master Agreement, the terms of the Master Agreement shall control.
12.2 Any notice, advice, election, request, or order, demand or other
direction required or permitted to be given under this Agreement shall be in
writing and in the English language, and (unless some other notice giving the
same is specified or accepted in writing by the recipient) shall be effective
(i) when personally delivered during normal business hours to the addressee at
the address designated for such delivery, (ii) on the date of receipt specified
on any return receipt if it shall have been deposited in the mails, certified or
registered with return receipt requested and postage thereon fully prepaid,
addressed to such address, or (iii) on the day it shall have been given by
facsimile transmission (with written confirmation of receipt) to such address,
whichever the foregoing shall first occur. Until otherwise specified by notice,
the addresses for any such notice, advise, election, request, order, demand or
other direction shall be:
If to the Company:
ADFlex Thailand Limited
Attention:
Telephone:
Facsimile:
If to ADFlex:
ADFlex Solutions, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
5
33
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Hana:
Hana Microelectronics Public Co. Ltd.
c/o ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇//▇ ▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
T. ▇▇▇ ▇▇▇▇▇, ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Telephone: 66 2/▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇▇/9
Facsimile: 66 2/552-4906, 551-1299
12.3 The headings in this Agreement are inserted for convenience only
and do not affect its construction.
12.4 Time is of the essence of this Agreement.
13. ADFLEX PURCHASE OF EQUITY INTEREST.
13.1 If ADFlex exercises its option to purchase Hana's equity interest
in the Company, as provided in the Master Agreement, and if Hana so requests,
the parties agree to renegotiate this Agreement in good faith. Any changes to
the terms and conditions set forth herein shall not be effective for six months
from the date upon which such changes are mutually agreed to in writing by the
parties.
IN WITNESS WHEREOF, parties hereto have caused this
Agreement to be duly executed as of the day and year first above written.
ADFlex Thailand Limited,
a Thailand private limited company
By___________________________________________
Title________________________________________
Hana Microelectronics Public Co., Ltd.,
a Thailand public limited company
By___________________________________________
Title________________________________________
6
34
ADFlex Solutions, Inc., a Delaware corporation
By___________________________________________
Title________________________________________
7
35
FINAL LEASE ARRANGEMENTS
LEASE BETWEEN HANA AND ATL:
- Premises of 14655 sq. ft. (Original agreement calls for up to 20,000)
- Term: Two years, renewable for a three year term.
- Rent: 185,386 Baht per month ($7,242 at 25.6 Baht, or $7,415 at 25 Baht to
the dollar).
- Deposit of two months' rent.
- Lessee to pay its portion of the insurance.
LEASE BETWEEN HIREL AND ADFLEX SOLUTIONS
- Premises of 14655 sq. ft.
- Term: Two years, renewable for three year term.
- Rent: $21,982.50 per month. With ATL payment this approximates $2 per foot.
- Deposit of two months' rent.
36
LEASE AGREEMENT
THE LEASE AGREEMENT is made this 16th day of April, 1996 at Hana
Microelectronics Public Co., Ltd. Lamphun, Thailand BETWEEN
HANA MICROELECTRONICS PUBLIC COMPANY LIMITED, represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ and Mr. Voraphoj Thepvanaprasiddhi, its authorized directors, having
registered office at ▇▇/▇ ▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇-▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇,
▇▇▇▇ Donmuang, Bangkok Metropolis, Thailand (hereinafter referred to the
"Lessor") of one part and
ADFLEX (THAILAND) LTD., represented by ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, its authorized
director, having registered office at ▇▇▇/▇ ▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇. Muang
Lamphun, Lamphun Province (hereinafter referred to as the "Lessee") of another
part.
NOW THEREFORE, the parties agree as follows:
1. LEASED PREMISES
The Lessor hereby grants to the Lessee and the Lessee does hereby accept
from the Lessor a lease of a facilities, manufacturing area of
approximately 14655 square feet located at ▇▇▇/▇ ▇▇▇ ▇, ▇▇▇▇▇▇ ▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇ Muang Lamphun, Lamphun Province, the detailed list of
property is attached herewith (hereinafter referred to as the "Leased
Premises")
2. PURPOSE
2.1 The purpose of the lease is for the manufacturing and assembling
of flexible circuits by the Lessee and other related trade
activities. The Lessee agrees not to possess the Leased Premises
for any purpose which is against or contradictory to any law and
not to use said Leased Premises for purposes other than those
specified above, without a prior written consent from the Lessor
2.2 Upon termination of this lease and/or the expiration of the
lease term, the right to possess the Leased Premises shall be
immediately returned to the Lessor.
3. LEASE TERM
Subject to the provisions hereof, the term of this Agreement shall be 2
years, commencing on the 1st day of June, 1996 and expiring on 31st day
of May, 1998. Upon the expiration of this lease term, should the Lessee
wish to renew the lease, the Lessor agrees to renew this lease as
stipulated under Clause 4.
4. RENEWAL OF THE LEASE TERM
Except for Clause 5 below the Lessor grants to the Lessee the option to
renew this lease for a further 3 year term upon the same terms and
conditions prescribed hereunder. In exercising this option, the Lessee
shall provide to the Lessor not less than 30-day written notice prior to
the expiration of the lease term.
37
5. THE RENT
The Lessor agrees to lease to the Lessee and the Lessee
agrees to take the lease from the Lessor of the Leased Premises at an
initial rental rate of Baht 185,386 (One Hundred Eighty Five Thousand
and Three Hundred Eighty Six Baht Only) per month payable in advance
on the 1st day of every month at the Lessor's office commencing on....
1st June...., 1996. In the event that the Lessee shall vacate the Leased
Premised prior to the expiry of the lease term, the Lessee shall remain
liable to pay the rent until expiry of the said term. The Lessor shall
issue to the Lessee a receipt of such payment.
6. THE DEPOSIT
The Lessee shall pay to the Lessor on the execution of this Agreement a
deposit in the sum of 370,772 (2 months) to secure the due performance
of this Agreement. The said deposit shall be retained by the Lessor
throughout the lease term free of any interest and shall not be deemed
to be or treated as payment of the rental. The said deposit shall be
refunded to the Lessee or subsequent to the termination of this
Agreement, when the Lessee has settled all water, electricity, telephone
bills and other expenses and has produced the receipts thereof to the
Lessor and settled any and all outstanding debts owed to the Lessor
including any payment for damages incurred to the Leased Premises and
when the Lessee has yielded up the Leased Premises in good condition,
normal wear and tear excepted.
7. THE LESSOR'S COVENANTS
The Lessor covenants to the Lessee as follows:
7.1 The Lessor owns the Leased Premises and has the right to lease
the Leased Premises to the Lessor evidenced.
7.2 The Lessor agrees that the Lessee duly observing and performing
the covenants herein contained may possess and peaceably enjoy
the Leased Premises without any intervention from the Lessor or
any third person acting on behalf of the Lessor, throughout the
lease term and the renewal thereof.
7.3 Throughout the lease term, if the Lessor defaults on its
obligations with any relevant lenders or mortgagors or any
person who may or has rights or encumbrances against the Leased
Premises in respect of the Leased Premises, the Lessor hereby
agrees to indemnify the Lessee against forfeiture of the
premises resulting from such default and shall compensate the
Lessee for any loss or damage directly resulting from such
forfeiture.
7.4 To facilitate the moving of the Lessee's property after the
termination or expiration of the lease term, the Lessor grants
to the Lessee the access to said Leased Premises within
reasonable specified period without any written consent from
the Lessor.
38
8. THE LESSEE'S COVENANTS
The Lessee covenants to the Lessor as follows:
8.1 Throughout the Lease term and including the renewal hereof, the
Lessee agrees to be responsible for payment of the signboard tax,
if any, and any expenses concerning the Lessee's business
operation.
8.2 The Lessee shall be responsible to pay the water, electricity,
telephone charges and any other fees incurred from the use of
said Leased Premises.
8.3 The Lessee agrees to let the Lessor or its authorized
representatives to enter and inspect the Leased Premises during
normal office hours, upon reasonable prior notice and within one
month after the Lessor shall have given written notice to the
Lessee of any defects, decays or want of reparation, to repair
and make good the same.
8.4 The Lessee agrees not to erect any structure, nor to make or
suffer to be made any alteration or improvement in or additions
to or upon the Leased Premises nor to commit or permit or suffer
any waste spoilage or destruction in or upon the Leased Premises
without the written consent of the Lessor.
During the lease period the Lessee shall have the right to
install, operate and remove, regardless of how attached or fixed
to the Leased Premises, all machinery, equipment, fixtures,
materials, and things as are required for its business, subject
to any necessary prior governmental approvals.
8.5 Upon termination hereof and/or upon expiration of the lease term
or renewal hereof (if any), it shall be deemed that the immovable
properties obtained after this lease is executed e.g. any
building constructed thereon, including permanent fixtures such
as air pipes, electrical wires and other similar kind of property
shall all become the Lessor. Subject to Clause 8.7 hereof, all
movable properties brought and installed within the Leased
Premises after this lease is in force e.g. machinery and
accessories installed thereon, irrespective of whether permanent
or temporary shall be deemed as belonging to the Lessee and the
Lessee is entitled to move those properties whether before or
after the termination hereof within reasonable time, without
obtaining written consent from the Lessor.
8.6 The parties agreed that the Lessor shall keep insure the Leased
Premises to its full value throughout the lease term by
specifying the Lessor as beneficiary and the Lessor shall have
the duty to pay the premium. The Lessee will be charged in
proportion of the leased space and will pay the Lessor the
premium as calculated.
39
In additional, the Lessee shall be entitled to insure the
machineries and equipment brought onto or installed by the
Lessee throughout the Lease term, and the Lessee shall be named
as the sole beneficiary and the Lessee shall have the duty to
pay the premiums directly to its appointed insurance company.
8.7 The parties agree that in the event that the Lessee's property
is attached by the Court's judgment or order or becomes
bankrupt, or the property is subject to any temporary
receivership, the Lessee agrees that the Lessor may immediately
terminate this Agreement without giving to the Lessee any prior
notice.
8.8 The Lessee shall not overload the concrete floors of the
Leased Premises in excess of its designed capacity nor use the
roof structure steel trusser and supporting columns for
excessive weight lifting or weight supporting purpose.
8.9 The Lessee shall not assign, sublet or otherwise part with or
share possession of the whole or any part of the Leased
Premises at any time during the term of the lease without the
written consent of the Lessor.
9. TERMINATION
9.1 If all or part of the Leased Premises are seized or expropriated
under any law or regulations which results in the Lessee's
inability to utilize the Leased Premises according to its
purpose as specified under Clause 2 hereof, the Lessee is
entitled to terminate the lease by providing the Lessor with
written notice within thirty (30) days following the date such
incident occurs and all the Lessee's obligations shall be deemed
to cease from the date such notice becomes effective. In the
event that compensation is granted by any government agency or
organization concerning such seizure or expropriation and the
compensation is granted directly for the Leased Premises, such
compensation amount shall become the Lessor's.
9.2 If a party (the "Default Party") hereto commits or fails to
commit any act which is deemed a breach to the provisions
hereof, the other party (the "Affected Party") must notify the
Default Party in writing to comply with provision of the
Agreement within fifteen (15) days. If the Default Party fails
to take any remedial action within the prescribed period without
giving due notice of the cause thereof to the Affected Party,
the Affected Party is entitled to terminate the agreement by
giving fifteen (15) days prior written notice, unless otherwise
mutually agreed.
10. NOTICE
Unless any one party shall change the address by written notice to the
other party, all notices or communications to or upon the respective
parties hereto shall be deemed to have been duly given or made by
registered mail at such
40
addresses of the parties specified herein.
A notice period of 180 days required to terminate this agreement,
failing which this agreement will automatically renew after mutual
agreement on terms.
11. TERMS
The term "Lessor" and "Lessee" in this Agreement shall include their
successors and assigns. This Agreement shall be binding upon and inure
to the benefit of said persons.
12. FORCE MAJEURE
Neither party shall be responsible to the other for any loss or damage,
resulting from force majeure.
13. WAIVER
The failure of either party to enforce or to exercise at any time any
term of or right arising pursuant to this Agreement does not constitute
and shall not be construed as a waiver of such term or right and shall
in no way affect the party's right late to enforce or exercise it.
14. GOVERNING LAW
This Agreement shall be governed by and construed in accordance with
the laws of the Kingdom of Thailand.
This Agreement is made in duplicate with identical text. Each party retains one
copy of the Agreement. Both parties have thoroughly read and understood the
provisions hereof and have set their hands hereunder.
LESSOR:
HANA MICROELECTRONICS PUBLIC CO.,LTD.
[LOGO] BY: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇
------------------------------------
(▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇)
DIRECTOR
/s/ Voraphoj Thepvanaprasiddhi
------------------------------------
(MR. VORAPHOJ THEPVANAPRASIDDHI)
DIRECTOR
IN THE PRESENCE OF:
/s/ Kanyarat Jarawiwat WITNESS /s/ Warintorn Busapun WITNESS
---------------------- ----------------------
(Miss. Kanyarat Jarawiwat) (Miss. Warintorn Busapun)
41
Lessee:
ADFlex (Thailand) Ltd.
[ADFlex (Thailand) LOGO]
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
-------------------------------
(▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇)
Director
In the presence of:
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ Witness /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ Witness
------------------- ----------------------
(▇▇▇▇▇▇ ▇. ▇▇▇▇▇) (▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇)
42
EXHIBIT C
ADMINISTRATIVE AGREEMENT
ADMINISTRATIVE AGREEMENT (the "Agreement") made this ___ day of
__________, 1996, by and among ADFlex Thailand Limited, a Thailand private
limited company (the "Company"), Hana Microelectronics Public Co., Ltd., a
Thailand public limited company ("Hana"), and ADFlex Solutions, Inc., a Delaware
corporation ("ADFlex").
WITNESSETH:
WHEREAS, Hana and ADFlex have formed the Company pursuant to the Master
Agreement between Hana and ADFlex dated ___________, 1996 (the "Master
Agreement"); and
WHEREAS, the Company engages in the business of finishing and assembly of
flexible circuits and all other activities related thereto in Thailand; and
WHEREAS, Hana owns certain facilities in the ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇
suitable or capable of being made suitable for the finishing and assembly of
flexible circuits and wishes to provide administrative services in connection
with the facilities and to assist the Company's business; and
WHEREAS, the Company desires to retain Hana's services on the terms and
subject to the conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of the parties hereinafter set forth, it is agreed as follows:
1. DEFINITIONS.
1.1 "Agreement" shall mean this Administrative Agreement.
1.2 "Dormitory Complex" shall mean the housing facility operated and
leased by Hana and located in the ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇.
1.3 "Facilities" shall mean the existing manufacturing area of
approximately 10,000 square feet, common parking, playground and cafeteria, and
such other facilities necessary to support the manufacturing area to be
constructed by Hana in accordance with the provisions of Section 2.1.1, all
owned by Hana and located in the ▇▇▇▇ ▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇.
1.4 "License Agreements" shall mean the License Agreement and the
Trademark License Agreement among the Company, ADFlex and Hana dated __________,
1996.
2. SERVICES. Hana covenants to the Company and ADFlex that it shall provide
administrative support services to the Company in connection with operation of
the Company's business at the Facilities as follows:
2.1 Hana shall be responsible for recruiting employees for the Company in
accordance with personnel qualifications and guidelines provided by the Company
and shall
43
maintain all employee files. Hana shall assist the Company in obtaining any
documents necessary for the Company to employ personnel at the Facilities. Hana
shall maintain a personnel administrator on site during normal working hours,
who will be responsible for handling routine personnel issues.
2.2 Hana shall provide not less than one week of training in basic
employment skills to each employee of the Company within ten days after the
employee is hired by the Company. Hana shall not be responsible for any
technical training of the Company's employees but agrees to assist the Company
as necessary in connection with technical or any other training of the Company's
employees.
2.3 Hana shall assist the Company in obtaining all necessary customs or
other regulatory approvals for the Company to transact business in Thailand and
to transport the Company's products and materials into and out of Thailand.
2.4 Hana shall assist the Company in its relations with the Board of
Investment, including preparation of any application, reports, or other
documents required by the Board.
2.5 Hana shall make available to the Company's employees housing for not
less than 450 individuals in Hana's Dormitory Complex. Individual employees will
be responsible for arranging for housing directly with Hana and paying all
associated costs, including rent. Hana shall operate and manage the Dormitory
Complex.
2.6 Hana shall be responsible for processing and distributing the payroll
for all of the Company's employees and for all reporting requirements. Hana
shall maintain all books and records relating to payroll on behalf of the
Company.
2.7 The parties agree that the compensation package for the Company's
employees shall be similar to that currently prevailing at Hana Lamphun, and the
Company and Hana shall reasonably cooperate at all times during the term of this
Agreement to ensure such similarity.
3. PAYMENT.
3.1 The Company shall pay Hana $200,000 U.S. per year for the services
described in Section 2, which amount shall be paid in equal monthly payments to
Hana at the address set forth in Section 11.2 or such other address designated
by Hana. ADFlex shall guarantee the payment to Hana by the Company in accordance
with this Section 3.
4. TERM.
4.1 This Agreement will become effective as of the date hereof and will
remain in effect for a period of two years. This Agreement will automatically
renew for additional one year terms unless either party provides notice to the
other of its intent to terminate the Agreement not less than 180 prior to the
expiration of the initial or any renewal term.
2
44
5. CONFIDENTIALITY.
5.1 Neither ADFlex, Hana nor the Company nor their respective employees or
agents shall divulge to any third person (other than those whose province it is
to know it or with proper authority) or use for any purpose any of the trade
secrets, know-how or confidential or proprietary information relating to the
others except pursuant to the License Agreements in furtherance of the business
of the Company; provided, however, that a party may divulge any such information
(i) in a proceeding to enforce its rights under this Agreement, or (ii) as
required by applicable law or the rules and regulations of a securities exchange
or automated quotation system. This restriction shall continue to apply after
the expiration or termination of this Agreement without limit in point of time
but shall cease to apply to secrets or information which come into the public
domain through no fault of the party concerned.
6. MEDIATION AND ARBITRATION.
6.1 If a dispute, controversy or claim arises out of or relates to this
Agreement or the breach, termination or validity hereof, and if such dispute,
controversy or claim cannot be settled through direct good faith discussions
between the parties, the parties shall first endeavor to settle the dispute in
an amicable manner by mediation under the Commercial Mediation Rules of the
American Arbitration Association ("AAA") before having recourse to arbitration.
If either party believes, for any reason whatsoever, after the mediation process
has begun that it will not lead to a satisfactory resolution of the matter, it
may give written notice of that belief to the other party, and proceed to
arbitration pursuant to the following provisions of this Section 6.
6.2 To the extent not settled as provided in Section 6.1, any dispute,
controversy or claim arising out of or relating to this Agreement or the breach,
termination, or validity hereof, shall be settled by arbitration in accordance
with the International Arbitration Rules of the AAA in effect on the date of
this Agreement. The arbitration shall be the sole and exclusive forum for
resolution of the dispute, controversy or claim and the award shall be final and
binding to the extent permitted by law.
6.3 There shall be three arbitrators, each of whom shall be disinterested
in the dispute, controversy or claim and shall have no connection with either
party. ADFlex and Hana shall each name an arbitrator and shall promptly, but no
later than 30 days after delivery of the arbitration demand, file with the AAA a
notice of appointment as provided in the International Arbitration Rules
specified above. The two arbitrators so chosen shall select a third arbitrator
who shall act as chairperson of the arbitration. If either party entitled to
name an arbitrator should abstain from doing so, or should the two arbitrators
named as provided above fail to select a third arbitrator, then at the request
of either party, the President of the AAA shall select an arbitrator to fill the
vacant position within ten days of such request.
6.4 The place of arbitration shall be Chandler, Arizona. The arbitration
shall be conducted in the English language and any foreign language documents
presented at such arbitration shall be accompanied by an English translation
thereof. The arbitrators shall apply the law of Arizona. The parties consent
that the United States District Court for the District of Arizona in Phoenix,
Arizona and courts in Thailand shall each have non-exclusive jurisdiction with
respect to all aspects of the enforcement of the arbitration provisions of this
Agreement.
3
45
Judgment upon the award rendered may be entered into any court having
jurisdiction, or application may be made to such court for judicial recognition
of the award or an order of enforcement thereof, as the case may be.
6.5 Arbitration awards rendered pursuant to this Section 6 shall be paid
in United States dollars.
7. GOVERNING LAW.
7.1 This Agreement shall be construed, enforced and governed by the laws
of the State of Arizona without regard to principles of conflicts of law.
8. ASSIGNMENT.
8.1 No party shall assign or transfer, or purport to assign or transfer,
any of its rights or obligations under this Agreement without the prior written
consent of the other party.
8.2 Except as set forth in this Section 8, this Agreement shall be binding
upon and shall inure to the benefit of the successors and permitted assigns of
the respective parties hereto.
9. WAIVER, FORBEARANCE AND VARIATION.
9.1 The rights of the parties under this Agreement shall not be prejudiced
or restricted by any indulgence or forbearance extended by one party to the
other party. No waiver by either party in respect of a breach shall operate as a
waiver in respect of any subsequent breach.
9.2 This Agreement shall not be varied, cancelled or modified unless the
variation, cancellation or modification is expressly agreed to in writing by a
duly authorized representative of each party.
10. SEVERABILITY.
10.1 If any provision of this Agreement is found by a court or other
competent authority to be void or unenforceable, it shall be deemed to be
deleted from this Agreement and the remaining provisions shall continue to
apply. The parties shall negotiate in good faith in order to agree to the terms
of a mutually satisfactory provision to be substituted for the provision found
to be void or unenforceable.
11. FORCE MAJEURE.
11.1 The parties understand and agree that, in the event that an act of
the national or local government (including without limitation currency
restrictions), or war conditions, or fire, flood or labor trouble or any other
circumstance beyond the parties' control, should prevent, curtail or delay the
performance by the parties of the provisions of this Agreement, then such
non-performance or delay shall not be considered a breach of this Agreement and
shall be excused, provided that the party so excused shall, promptly after
cessation of the force majeure circumstance, resume performance of its duties
under the Agreement and, to the extent
4
46
reasonably practicable, perform the duties previously prevented. Any force
majeure circumstance that persists for more than 180 days will be ground for
termination.
12. MISCELLANEOUS PROVISIONS.
12.1 This Agreement and the Master Agreement constitute the entire
agreement among the parties hereto with respect to the subject matter hereof and
supersede all prior oral and written discussions and understandings. In the
event of any conflict between the terms of this Agreement and the terms of the
Master Agreement, the terms of the Master Agreement shall control.
12.2 Any notice, advice, election, request, or order, demand or other
direction required or permitted to be given under this Agreement shall be in
writing and in the English language, and (unless some other notice giving the
same is specified or accepted in writing by the recipient) shall be effective
(i) when personally delivered during normal business hours to the addressee at
the address designated for such delivery, (ii) on the date of receipt specified
on any return receipt if it shall have been deposited in the mails, certified or
registered with return receipt requested and postage thereon fully prepaid,
addressed to such address, or (iii) on the day it shall have been given by
facsimile transmission (with written confirmation of receipt) to such address,
whichever the foregoing shall first occur. Until otherwise specified by notice,
the addresses for any such notice, advise, election, request, order, demand or
other direction shall be:
If to the Company:
ADFlex Thailand Limited
Attention:
Telephone:
Facsimile:
If to ADFlex:
ADFlex Solutions, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Hana:
Hana Microelectronics Public Co. Ltd.
c/o ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇//▇ ▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
T. Ban Klang, A. Muang,
5
47
Lamphun ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Telephone: 66 2/▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇▇/9
Facsimile: 66 2/552-4906, 551-1299
12.3 The headings in this Agreement are inserted for convenience only and
do not affect its construction.
12.4 Time is of the essence of this Agreement.
13. ADFLEX PURCHASE OF EQUITY INTEREST.
13.1 If ADFlex exercises its option to purchase Hana's equity interest in
the Company, as provided in the Master Agreement, and if Hana so requests, the
parties agree to renegotiate this Agreement in good faith. Any changes to the
terms and conditions set forth herein shall not be effective for six months from
the date upon which such changes are mutually agreed to in writing by the
parties.
IN WITNESS WHEREOF, parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
ADFlex Thailand Limited,
a Thailand private limited company
By ____________________________________
Title _________________________________
Hana Microelectronics Public Co., Ltd.,
a Thailand public limited company
By ____________________________________
Title _________________________________
ADFlex Solutions, Inc., a Delaware corporation
By ____________________________________
Title _________________________________
6
48
EXHIBIT D
LICENSE AGREEMENT
LICENSE AGREEMENT (the "Agreement") made this ___ day of __________, 1996,
by and among ADFlex Thailand Limited (the "Company"), a Thailand private limited
company and ADFlex Solutions, Inc., a Delaware corporation ("ADFlex"), and Hana
Microelectronics Public Co., Ltd., a Thailand public limited company ("Hana").
WITNESSETH:
WHEREAS, ADFlex engages in the business of the design and manufacture of
flexible circuits and owns certain technology for flexible circuit finishing and
assembly (the "ADFlex Technology"); and
WHEREAS, ADFlex and Hana have formed the Company to engage in the
finishing and assembly of flexible circuits and all other activities related
thereto in Thailand; and
WHEREAS, the Company desires to license the ADFlex Technology on the terms
and subject to the conditions hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of the parties hereinafter set forth, the parties agree as follows:
1. DEFINITIONS.
1.1 "ADFlex Technology" shall mean the technology for flexible circuit
finishing and assembly owned by ADFlex including all patents, trade secrets,
know-how, processes, formulae, techniques, procedures, and other technical
information relating to the technology.
1.2 "Agreement" shall mean this License Agreement.
2. LICENSE.
2.1 ADFlex hereby grants to the Company a royalty-free, nontransferable,
nonexclusive license to use the ADFlex Technology and any improvements thereto
in its business. ADFlex shall provide the Company with the ADFlex Technology and
all documentation necessary for use of the ADFlex Technology. For a period of 90
days following delivery of the ADFlex Technology, ADFlex shall provide the
Company with training and otherwise assist the Company in implementing the
ADFlex Technology. The Company shall pay any out-of-pocket costs incurred by
ADFlex in connection with the training, including reasonable travel expenses.
ADFlex shall be responsible for personnel or any other costs associated with the
training. Thereafter, ADFlex shall provide additional support in the use of the
ADFlex Technology at its then current hourly rates, or if ADFlex has no current
rate, at a reasonable rate for the support.
49
2.2 ADFlex shall provide to the Company, at no additional cost, any
improvements to its Technology and shall provide additional training to the
Company as necessary for the Company to implement the improvements.
3. OWNERSHIP.
3.1 The ADFlex Technology and any improvements thereto embody trade
secrets and confidential know-how and other confidential information of ADFlex,
which shall remain the exclusive property of ADFlex, subject only to rights
granted to the Company under this Agreement. It is expressly understood that no
title to or ownership of the ADFlex Technology, or any part thereof, is hereby
transferred to the Company.
4. CONFIDENTIALITY.
4.1 Neither ADFlex, Hana or the Company nor their respective employees or
agents shall divulge to any third person (other than those whose province it is
to know it or with proper authority) or use for any purpose any of the trade
secrets, know-how or confidential or proprietary information relating to the
other or contained in the ADFlex Technology except pursuant to this Agreement in
furtherance of the business of the Company. This restriction shall continue to
apply after the expiration or termination of this Agreement without limit in
point of time.
4.2 Notwithstanding Section 4.1, the ADFlex Technology will not be deemed
confidential if the Technology is (i) in the public domain at the time of
disclosure; (ii) published or otherwise becomes part of the public domain
through no fault of the receiving party after disclosure; or (iii) was received
from a third party who did not acquire it, directly or indirectly, from the
disclosing party under an obligation of confidence except where required by law.
5. TERM AND TERMINATION.
5.1 This Agreement and the license granted hereunder shall terminate upon
dissolution of the Company or if the Company ceases to use the ADFlex
Technology. Upon termination of this Agreement, the Company shall return to
ADFlex all materials relating to the ADFlex Technology provided to it and shall
cease use of the ADFlex Technology.
6. MEDIATION AND ARBITRATION.
6.1 If a dispute, controversy or claim arises out of or relates to this
Agreement or the breach, termination or validity hereof, and if such dispute,
controversy or claim cannot be settled through direct good faith discussions
between the parties, the parties shall first endeavor to settle the dispute in
an amicable manner by mediation under the Commercial Mediation Rules of the
American Arbitration Association ("AAA") before having recourse to arbitration.
If either party believes, for any reason whatsoever, after the mediation process
has begun that it will not lead to a satisfactory resolution of the matter, it
may give written notice of that belief to the other party, and proceed to
arbitration pursuant to the following provisions of this Section 6.
2
50
6.2 To the extent not settled as provided in Section 6, any dispute,
controversy or claim arising out of or relating to this Agreement or the breach,
termination, or validity hereof, shall be settled by arbitration in accordance
with the International Arbitration Rules of the AAA in effect on the date of
this Agreement. The arbitration shall be the sole and exclusive forum for
resolution of the dispute, controversy or claim and the award shall be final and
binding to the extent permitted by law.
6.3 There shall be three arbitrators, each of whom shall be disinterested
in the dispute, controversy or claim and shall have no connection with either
party. ADFlex and Hana shall each name an arbitrator and shall promptly, but no
later than 30 days after delivery of the arbitration demand, file with the AAA a
notice of appointment as provided in the International Arbitration Rules
specified above. The two arbitrators so chosen shall select a third arbitrator
who shall act as chairperson of the arbitration. If either party entitled to
name an arbitrator should abstain from doing so, or should the two arbitrators
named as provided above fail to select a third arbitrator, then at the request
of either party, the President of the AAA shall select an arbitrator to fill the
vacant position within ten days of such request.
6.4 The place of arbitration shall be Chandler, Arizona. The arbitration
shall be conducted in the English language and any foreign language documents
presented at such arbitration shall be accompanied by an English translation
thereof. The arbitrators shall apply the law of Arizona. The parties consent
that the United States District Court for the District of Arizona in Phoenix,
Arizona and courts in Thailand shall each have non-exclusive jurisdiction with
respect to all aspects of the enforcement of the arbitration provisions of this
Agreement. Judgment upon the award rendered may be entered into any court having
jurisdiction, or application may be made to such court for judicial recognition
of the award or an order of enforcement thereof, as the case may be.
6.5 Arbitration awards rendered pursuant to this Section 6 shall be paid
in United States dollars.
7. GOVERNING LAW.
7.1 This Agreement shall be construed, enforced and governed by the laws
of State of Arizona without regard to principles of conflicts of law.
8. ASSIGNMENT.
8.1 No party shall assign or transfer, or purport to assign or transfer,
any of its rights or obligations under this Agreement without the prior written
consent of the other party.
8.2 Except as set forth in this Section 8, this Agreement shall be binding
upon and shall inure to the benefit of the successors and permitted assigns of
the respective parties hereto.
3
51
9. WAIVER, FORBEARANCE AND VARIATION.
9.1 The rights of the parties under this Agreement shall not be prejudiced
or restricted by any indulgence or forbearance extended by one party to the
other party. No waiver by either party in respect of a breach shall operate as a
waiver in respect of any subsequent breach.
9.2 This Agreement shall not be varied, cancelled or modified unless the
variation, cancellation or modification is expressly agreed to in writing by a
duly authorized representative of each party.
10. SEVERABILITY.
10.1 If any provision of this Agreement is found by a court or other
competent authority to be void or unenforceable, it shall be deemed to be
deleted from this Agreement and the remaining provisions shall continue to
apply. The parties shall negotiate in good faith in order to agree to the terms
of a mutually satisfactory provision to be substituted for the provision found
to be void or unenforceable.
11. MISCELLANEOUS PROVISIONS.
11.1 This Agreement and the Master Agreement constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof and supersede all prior oral and written discussions and
understandings.
11.2 Any notice, advice, election, request, or order, demand or other
direction required or permitted to be given under this Agreement shall be in
writing and in the English language, and (unless some other notice giving the
same is specified or accepted in writing by the recipient) shall be effective
(i) when personally delivered during normal business hours to the addressee at
the address designated for such delivery, (ii) on the date of receipt specified
on any return receipt if it shall have been deposited in the mails, certified or
registered with return receipt requested and postage thereon fully prepaid,
addressed to such address, or (iii) on the day it shall have been given by
facsimile transmission (with written confirmation of receipt) to such address,
whichever the foregoing shall first occur. Until otherwise specified by notice,
the addresses for any such notice, advise, election, request, order, demand or
other direction shall be:
If to the Company:
ADFlex Thailand Limited
Attention:
4
52
Telephone:
Facsimile:
If to ADFlex:
ADFlex Solutions, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Hana:
Hana Microelectronics Public Co. Ltd.
c/o ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇//▇ ▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
T. ▇▇▇ ▇▇▇▇▇, ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Telephone: 66 2/▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇▇/9
Facsimile: 66 2/552-4906, 551-1299
11.3 The headings in this Agreement are inserted for convenience only and
do not affect its construction.
11.4 In the event of any ambiguity or conflict arising between the terms
of this Agreement and the terms of the Master Agreement, the terms of the Master
Agreement shall prevail as between the parties.
11.5 Time is of the essence of this Agreement.
IN WITNESS WHEREOF, parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
ADFlex Thailand Limited,
a private limited company
By _____________________________________
Title __________________________________
5
53
ADFlex Solutions, Inc., a Delaware corporation
By _____________________________________
Title __________________________________
Hana Microelectronics Public Co., Ltd., a
Thailand public limited company
By _____________________________________
Title __________________________________
6
54
EXHIBIT E
TRADEMARK LICENSE AGREEMENT
TRADEMARK LICENSE AGREEMENT (the "Agreement") made this ___ day of
__________, 1996, by and among ADFlex Thailand Limited (the "Company"), a
Thailand private limited company, and ADFlex Solutions, Inc., a Delaware
corporation ("ADFlex"), and Hana Microelectronics Public Co., Ltd., a Thailand
public limited company ("Hana").
WITNESSETH:
WHEREAS, ADFlex and Hana have formed the Company to engage in the
finishing and assembly of flexible circuits and all other activities related
thereto in Thailand; and
WHEREAS, the Company desires to use the ADFlex name and its corporate logo
in connection with its business on the terms and subject to the conditions
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the mutual covenants
of the parties hereinafter set forth, the parties agree as follows:
1. DEFINITIONS.
1.1 "ADFlex Trademark" shall mean the ADFlex corporate logo in the form
attached hereto as Exhibit A.
1.2 "Agreement" shall mean this Trademark License Agreement.
2. LICENSE.
2.1 ADFlex grants to the Company a royalty-free, nontransferable,
nonexclusive license to use the name "ADFlex" and the ADFlex Trademark in the
conduct of the Company's business.
3. OWNERSHIP.
3.1 The ADFlex name and the ADFlex Trademark shall remain the exclusive
property of ADFlex, subject only to rights granted to the Company under this
Agreement. It is expressly understood that no title to or ownership of the
ADFlex name or the ADFlex Trademark is hereby transferred to the Company.
4. TERM AND TERMINATION.
4.1 This Agreement and the license granted hereunder shall terminate upon
dissolution of the Company or if the Company ceases to use the ADFlex name and
ADFlex Trademark. Upon termination of this Agreement for any reason, the Company
shall cease use of the ADFlex name and ADFlex Trademark.
55
5. MEDIATION AND ARBITRATION.
5.1 If a dispute, controversy or claim arises out of or relates to this
Agreement or the breach, termination or validity hereof, and if such dispute,
controversy or claim cannot be settled through direct good faith discussions
between the parties, the parties shall first endeavor to settle the dispute in
an amicable manner by mediation under the Commercial Mediation Rules of the
American Arbitration Association ("AAA") before having recourse to arbitration.
If either party believes, for any reason whatsoever, after the mediation process
has begun that it will not lead to a satisfactory resolution of the matter, it
may give written notice of that belief to the other party, and proceed to
arbitration pursuant to the following provisions of this Section 5.
5.2 To the extent not settled as provided in Section 5, any dispute,
controversy or claim arising out of or relating to this Agreement or the breach,
termination, or validity hereof, shall be settled by arbitration in accordance
with the International Arbitration Rules of the AAA in effect on the date of
this Agreement. The arbitration shall be the sole and exclusive forum for
resolution of the dispute, controversy or claim and the award shall be final and
binding to the extent permitted by law.
5.3 There shall be three arbitrators, each of whom shall be disinterested
in the dispute, controversy or claim and shall have no connection with either
party. ADFlex and Hana shall each name an arbitrator and shall promptly, but no
later than 30 days after delivery of the arbitration demand, file with the AAA a
notice of appointment as provided in the International Arbitration Rules
specified above. The two arbitrators so chosen shall select a third arbitrator
who shall act as chairperson of the arbitration. If either party entitled to
name an arbitrator should abstain from doing so, or should the two arbitrators
named as provided above fail to select a third arbitrator, then at the request
of either party, the President of the AAA shall select an arbitrator to fill the
vacant position within ten days of such request.
5.4 The place of arbitration shall be Chandler, Arizona. The arbitration
shall be conducted in the English language and any foreign language documents
presented at such arbitration shall be accompanied by an English translation
thereof. The arbitrators shall apply the law of Arizona. The parties consent
that the United States District Court for the District of Arizona in Phoenix,
Arizona and courts in Thailand shall each have non-exclusive jurisdiction with
respect to all aspects of the enforcement of the arbitration provisions of this
Agreement. Judgment upon the award rendered may be entered into any court having
jurisdiction, or application may be made to such court for judicial recognition
of the award or an order of enforcement thereof, as the case may be.
5.5 Arbitration awards rendered pursuant to this Section 5 shall be paid
in United States dollars.
6. GOVERNING LAW.
6.1 This Agreement shall be construed, enforced and governed by the laws
of the State of Arizona without regard to principles of conflicts of law.
2
56
7. ASSIGNMENT.
7.1 No party shall assign or transfer, or purport to assign or transfer,
any of its rights or obligations under this Agreement without the prior written
consent of the other party.
7.2 Except as set forth in this Section 7, this Agreement shall be binding
upon and shall inure to the benefit of the successors and permitted assigns of
the respective parties hereto.
8. WAIVER, FORBEARANCE AND VARIATION.
8.1 The rights of the parties under this Agreement shall not be prejudiced
or restricted by any indulgence or forbearance extended by one party to the
other party. No waiver by either party in respect of a breach shall operate as a
waiver in respect of any subsequent breach.
8.2 This Agreement shall not be varied, cancelled or modified unless the
variation, cancellation or modification is expressly agreed to in writing by a
duly authorized representative of each party.
9. SEVERABILITY.
9.1 If any provision of this Agreement is found by a court or other
competent authority to be void or unenforceable, it shall be deemed to be
deleted from this Agreement and the remaining provisions shall continue to
apply. The parties shall negotiate in good faith in order to agree to the terms
of a mutually satisfactory provision to be substituted for the provision found
to be void or unenforceable.
10. MISCELLANEOUS PROVISIONS.
10.1 This Agreement and the Master Agreement constitute the entire
agreement between the parties hereto with respect to the subject matter hereof
and thereof and supersede all prior oral and written discussions and
understandings.
10.2 Any notice, advice, election, request, or order, demand or other
direction required or permitted to be given under this Agreement shall be in
writing and in the English language, and (unless some other notice giving the
same is specified or accepted in writing by the recipient) shall be effective
(i) when personally delivered during normal business hours to the addressee at
the address designated for such delivery, (ii) on the date of receipt specified
on any return receipt if it shall have been deposited in the mails, certified or
registered with return receipt requested and postage thereon fully prepaid,
addressed to such address, or (iii) on the day it shall have been given by telex
(with appropriate answer back received), or facsimile transmission (with written
confirmation of receipt) to such address, whichever the foregoing shall
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first occur. Until otherwise specified by notice, the addresses for any such
notice, advise, election, request, order, demand or other direction shall be:
If to the Company:
ADFlex Thailand Limited
Attention:
Telephone:
Facsimile:
If to ADFlex:
ADFlex Solutions, Inc.
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
If to Hana:
Hana Microelectronics Public Co. Ltd.
c/o ▇▇▇▇▇▇▇ ▇▇▇
▇▇▇//▇ ▇▇▇ ▇, ▇▇▇
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
T. ▇▇▇ ▇▇▇▇▇, ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇
Telephone: 66 2/▇▇▇-▇▇▇▇, ▇▇▇-▇▇▇▇/9
Facsimile: 66 2/552-4906, 551-1299
10.3 The headings in this Agreement are inserted for convenience only and
do not affect its construction.
10.4 In the event of any ambiguity or conflict arising between the terms
of this Agreement and the terms of the Master Agreement, the terms of the Master
Agreement shall prevail as between the parties.
10.5 Time is of the essence of this Agreement.
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IN WITNESS WHEREOF, parties hereto have caused this Agreement to be duly
executed as of the day and year first above written.
ADFlex Thailand Limited,
a Thailand private limited company
By ________________________________________
Title _____________________________________
ADFlex Solutions, Inc., a Delaware corporation
By ________________________________________
Title _____________________________________
Hana Microelectronics Public Co., Ltd.,
a Thailand public limited company
By ________________________________________
Title _____________________________________
5
