Exhibit-4.18
Private & Confidential
Dated 8th April 2005
NAM TAI ELECTRONICS, INC.
ASANO COMPANY LTD.
AS VENDORS
NAM TAI ELECTRONIC & ELECTRICAL
PRODUCTS LIMITED
AS PURCHASER
NAM TAI ELECTRONICS, INC.
ASANO COMPANY LTD.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ QING
AS WARRANTORS
----------
AGREEMENT
relating to the sale and purchase of
the entire issued share capital of
NAMTEK SOFTWARE DEVELOPMENT
COMPANY LIMITED
----------
(▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & MASTER LOGO)
THIS AGREEMENT is dated 8th April 2005 and is made BETWEEN:
(1) NAM TAI ELECTRONICS, INC., a company incorporated in the British Virgin
Islands with its registered office at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ("▇▇▇ Inc.") and ASANO COMPANY LTD., a company
incorporated in the British Virgin Islands with its registered office at
P.O. Box 957, Offshore Incorporations Centre, Road Town, Tortola, British
Virgin Islands ("Asano Company", together with NTE Inc., the "Vendors");
(2) NAM TAI ELECTRONIC & ELECTRICAL PRODUCTS LIMITED, a company incorporated in
the Cayman Islands with its Hong Kong Office at 15th Floor China Merchants
Tower, Shun Tak Centre, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the
"Purchaser"); and
(3) The Vendors, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ of ▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇-▇▇▇,
▇▇▇▇▇-▇▇▇, ▇▇▇▇▇ ("▇▇. ▇▇▇▇▇") and ▇▇▇ ▇▇▇ QING of Room 701, 8B Haiqin
Garden, Shekou, Nanshan District, Shenzhen, Guangdong Province, P.R.C.
("▇▇. ▇▇▇") (▇▇. ▇▇▇ together with Vendors and ▇▇. ▇▇▇▇▇, collectively, the
"Warrantors").
NOW IT IS HEREBY AGREED as follows:-
1. INTERPRETATION
1.01 In this Agreement unless the context otherwise requires:-
(a) the following expressions shall have the following meanings.
Expression Meaning
---------- -------
"Accounts" the unaudited management accounts of the
Company and each of the Subsidiaries as at
31 December 2004 and the unaudited
consolidated management accounts of the
Company as at 31 December 2004 in the
approved forms marked "A"
"business day" a day that is not a Saturday, Sunday or
public holiday in Hong Kong
"Companies Ordinance" the Companies Ordinance (Chapter 32, as
amended, of the Laws of Hong Kong)
"Company" Namtek Software Development Company
Limited, a company incorporated in the
Cayman Islands, certain basic information
about which is set out in Schedule 2
Page 1
"Completion" completion of the sale and purchase of the
Sale Shares in accordance with the terms
and conditions of this Agreement
"Completion Date" the date on which Completion occurs
"Conditions" the conditions set out in Clause 2.01
"Consideration Shares" the 81,670,588 new Shares of the Purchaser
to be allotted and issued to the Vendors
(or as they may direct) pursuant to this
Agreement
"Group" the Company and the Subsidiaries
"Hong Kong" the Hong Kong Special Administrative
Region of the People's Republic of China
"Namtek Staff" employees of the Namtek Group as set out
in Schedule 6 and who remains an employee
of the Namtek Group on the second
anniversary of the Completion Date
"Non-disposal Undertakings" the undertakings to be given by Asano
Company in Clause 6.01
"PRC" People's Republic of China
"Sale Shares" 100 common shares of $1.00 each of the
Company beneficially owned by the Vendors
as set out in Part B of Schedule 1
"Share(s)" ordinary share(s) of $0.01 each in the
capital of the Purchaser
"Shareholder(s)" holder(s) of the Shares
"Stock Exchange" The Stock Exchange of Hong Kong Limited
"Subsidiaries" Namtek Japan Company Limited and Shenzhen
Namtek Co., Ltd., short particulars of
which are set out in Schedule 3
Page 2
"Subsidiary" any one of the Subsidiaries
"Supplemental Letters the supplemental letter agreements to be
Regarding Service" entered into between the Purchaser and
each of ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇ in relation
to their service with the Group and
containing, among others, such terms as
set out in Schedule 7
"Taxation" (a) any liability to any form of taxation
whenever created or imposed and of
any part of the world and without
prejudice to the generality of the
foregoing includes profits tax,
provisional profits tax, interest
tax, salaries tax, property tax,
taxes on income, estate duty, capital
duty, stamp duty, payroll tax,
withholding tax, rates, customs and
excise duties and generally any tax,
duty, impost, levy or rate or any
amount payable to the revenue,
customs or fiscal authorities of any
part of the world; and
(b) an amount equal to any deprivation of
any relief, allowance, set off,
deduction in computing profits or
right to repayment of taxation
granted by or pursuant to any
legislation concerning or otherwise
relating to taxation; and
(c) all costs, interest, penalties,
charges and expenses incidental or
relating to taxation or to any
relief, allowance, set off or
deduction in computing profits or
right to repayment of taxation
"the Tax Indemnity" the tax indemnity in the form of the deed
set out in Schedule 5 and referred to in
Clause 4.01(b)
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"the Warranties" the representations, warranties and
undertakings set out in Schedule 4
"$" Hong Kong dollars, the lawful currency of
Hong Kong
"RMB" Renminbi, the lawful currency of the PRC
"US$" United States dollars, the lawful currency
of the United States of America
(b) words and expressions defined in the Companies Ordinance shall bear
the same respective meanings herein;
(c) reference to any statute or statutory provision shall include any
statute or statutory provision which amends or replaces, or has
amended or replaced, it and shall include any subordinate
legislation made under the relevant statute;
(d) a body corporate shall be deemed to be associated with another body
corporate if it is a holding company or a subsidiary of that other
body corporate or a subsidiary of a holding company of that body
corporate;
(e) references to Clauses and sub-clauses and Schedules are to Clauses
and sub-clauses of and Schedules to this Agreement;
(f) references to writing shall include typewriting, printing,
lithography, photography, telecopier and telex messages and any
mode of reproducing words in a legible and non-transitory form;
(g) words importing the singular include the plural and vice versa,
words importing a gender include every gender and references to
persons include bodies corporate or unincorporate; and
(h) any document expressed to be "in the approved form" means a
document approved by the parties hereto and (for the purpose of
identification) signed on behalf of the Vendors and the Purchaser.
1.02 Headings are for convenience only and shall not affect the construction
of this Agreement.
1.03 In construing this Agreement:-
(a) the rule known as the ejusdem generis rule shall not apply and
accordingly general words introduced by the word "other" shall not
be given a restrictive meaning by reason of the fact that they are
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preceded by words indicating a particular class of acts, matters or
things; and
(b) general words shall not be given a restrictive meaning by reason of
the fact that they are followed by particular examples intended to
be embraced by the general words.
1.04 The Schedules form part of this Agreement and shall have the same force
and effect as if expressly set out in the body of this Agreement and any
reference to this Agreement shall include the Schedules.
2. CONDITIONS
2.01 Completion of this Agreement is subject to and conditional upon the
following conditions being fulfilled and remaining satisfied as at
Completion:-
(a) the passing of all requisite resolutions by the independent
Shareholders at the extraordinary general meeting of the Purchaser
to approve this Agreement and the mandate to be granted to the
directors of the Purchaser to issue the Consideration Shares;
(b) the Listing Committee of the Stock Exchange granting listing of and
permission to deal in the Consideration Shares; and
(c) the entering into by ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇ of the Supplemental
Letters Regarding Service.
2.02 The Purchaser shall use all reasonable endeavours to ensure that the
Conditions are fulfilled as soon as is reasonably practicable. In the
event that the Conditions are not fulfilled (or, in relation to the
condition in Clause 2.01(c), waived by the Purchaser) on or before 31
December 2005 (or such later date as the parties hereto may agree), the
rights and obligations of the parties hereunder will lapse and this
Agreement shall thereupon terminate and be of no further effect, in
which event the parties hereto shall be released from all their
obligations hereunder without liability, save for any liability for
antecedent breach of any obligation.
2.03 The Purchaser reserves the right to waive (to such extent as it may
think fit) compliance with the conditions set out in Clause 2.01(c) but
without prejudice to any other rights which the Purchaser may have under
this Agreement.
3. SALE AND PURCHASE
3.01 On the terms set out in this Agreement and subject to the Conditions,
the Vendors as beneficial owners shall sell the Sale Shares to the
Purchaser free from all liens, charges, encumbrances, equities and
adverse interests and with all rights attached or accruing thereto at
the Completion Date (including the
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right to receive all dividends and other distributions declared, made or
paid on or after the Completion Date) and the Purchaser relying on the
representations, warranties, undertakings and indemnities of the
Warrantors contained or referred to herein shall purchase the Sale
Shares with effect from Completion. The said obligations of the Vendors
shall be several and shall, as regards each Vendor, relate to the Sale
Shares beneficially owned by it as set out in column (2) of Part B of
Schedule 1.
3.02 The consideration for the sale of the Sale Shares is US$26,700,000 and
shall be satisfied by the allotment and issue to the Vendors (or as they
may direct) of the number of Consideration Shares, credited as fully
paid at HK$2.55 per Share, set against the respective Vendor's name in
column (3) of Part B of Schedule 1.
3.03 The Consideration Shares shall rank pari passu in all respects with the
existing Shares of the Purchaser, and shall carry the right to receive
in full all dividends and other distributions declared, made or paid
after the Completion Date.
3.04 The Purchaser shall not be obliged to complete the purchase of the Sale
Shares agreed to be acquired hereunder unless the purchase of all of the
Sale Shares is completed simultaneously.
4. COMPLETION
4.01 Completion of the sale and purchase of the Sale Shares shall take place
on the second business day after the fulfilment of the Conditions at
such time as may be agreed between the parties hereto (or on such other
date and at such time as may be agreed between the parties hereto) at
15th Floor China Merchants Tower, Shun Tak Centre, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇, when all (but not part only) of the following
business shall be transacted:-
(a) the Vendors shall deliver to or to the order of the Purchaser:-
(i) instruments of transfer in respect of the Sale Shares duly
executed by or on behalf of the Vendors (as the registered and
beneficial holders and transferors of the Sale Shares) in
favour of the Purchaser and/or its nominee(s);
(ii) all share certificates in respect of the Sale Shares; and
(iii) such other documents as may be required to give a good title
to the Sale Shares and to enable the Purchaser and/or its
nominee(s) to be registered as the holders thereof;
(b) the Warrantors shall seal and deliver the Tax Indemnity to the
Purchaser;
Page 6
(c) the Vendors shall deliver to or to the order of the Purchaser the
following documents as the Purchaser may require:-
(i) copies of minutes of a meeting of the directors of each of the
Vendors authorising the execution of, and the performance of
its obligations under this Agreement, certified as true copies
by a director or the secretary of such Vendor; and
(ii) the statutory books (which shall be written up to but not
including the Completion Date), certificate of incorporation,
each certificate of incorporation on change of name,
certificate of business registration and common seal of each
company of the Group;
(d) all books and accounts and other records of each company of the
Group;
(e) the Vendors shall procure a board meeting of the Company to be held
at which:-
(i) the Purchaser and/or its nominee shall be approved for
registration as the holder(s) of the Sale Shares subject only
to the relevant instruments of transfer being presented for
registration;
(ii) signed resignation of ▇▇▇ ▇▇▇▇ Kei ▇▇▇▇▇▇ as company secretary
shall be tendered;
(iii) the person(s) nominated by the Purchaser (if any) shall be
appointed directors of the Company;
(iv) ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ shall be appointed company secretary of
the Company; and
(iv) such other matters as the Purchaser may reasonably require
shall be dealt with and resolved upon;
(f) the Vendors shall procure a board meeting of Namtek Japan Company
Limited to be held at which:-
(i) signed resignations of Lei ▇▇▇ ▇▇▇▇ Patinda as director and
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ as statutory auditor shall be tendered;
(ii) the persons nominated by the Purchaser (if any) shall be
appointed directors and statutory auditor of Namtek Japan
Company Limited; and
(iii) such other matters as the Purchaser may reasonably require
shall be dealt with and resolved upon;
Page 7
(g) the Vendors shall procure a board meeting of Shenzhen Namtek Co.,
Ltd. to be held at which:-
(i) the persons nominated by the Purchaser (if any) shall be
appointed directors of Shenzhen Namtek Co., Ltd.; and
(ii) such other matters as the Purchaser may reasonably require
shall be dealt with and resolved upon;
(h) the Purchaser shall procure a board meeting to be held at which ▇▇.
▇▇▇▇▇ shall be appointed a director of the Purchaser;
(i) the Purchaser shall allot and issue to the Vendors (or as they may
by at least 5 business days' prior written notice to the Purchaser
specify and direct) such number of Consideration Shares as shall be
set against their names in column (3) of Part B of Schedule 1 and
shall deliver to the Vendors share certificates in respect of the
Consideration Shares; and
(j) the Purchaser shall enter into the Supplemental Letters Regarding
Service with ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇ respectively.
4.02 The obligations of the Vendors shall be several (and in relation to the
matters provided for in Clause 4.01 shall relate only to the Sale Shares
beneficially owned by the particular Vendor) but no party shall be
obliged to complete this Agreement or perform any obligations under
Clause 4.01 unless the other parties hereto demonstrate that they are
able to comply fully with the requirements of Clause 4.01.
5. UNDERTAKINGS PENDING COMPLETION AND POST-COMPLETION
5.01 The Vendors hereby jointly and severally undertake to the Purchaser to
procure that, pending Completion, each company of the Group will not do
any act or thing save such as may be necessary in order for it to carry
on its business in the ordinary course after consultation with the
Purchaser and, where such act or thing is material, only with the
Purchaser's prior written consent and in particular will not, save as
contemplated in this Agreement:-
(a) appoint any director, secretary or (pursuant to any power of
attorney or similar authority) attorney; or
(b) declare, make or pay any dividend or other distribution, save for
the dividend to be declared before Completion (i) by Shenzhen
Namtek Co., Ltd. to the Company of not exceeding RMB22,131,591; and
(ii) by the Company to its shareholders of not exceeding
US$2,362,014; or
Page 8
(c) make any change in its authorised or issued share capital or the
rights attaching thereto or do or permit to be done any act, deed
or thing which might result in any such change; or
(d) save as aforesaid, acquire or dispose of any assets or enter into
any contract; or
(e) create or permit to arise any lien, charge, encumbrance, pledge or
other third party right or interest on or in respect of any of its
undertaking, property or assets.
5.02 The Vendors further jointly and severally undertake to the Purchaser to
procure that immediately after Completion, the bank mandates of each of
the bank accounts in the name of each company of the Group will be
altered so that nominees of the Purchaser will be appointed additional
authorised signatories of each of such bank accounts.
6. NON-DISPOSAL UNDERTAKINGS
6.01 Asano Company undertakes to the Purchaser that:
(a) it shall not distribute or dispose of or enter into any agreement
to dispose of any of its interests in the Consideration Shares it
received on Completion (together with any other shares or other
securities of the Purchaser derived therefrom as a result of any
capitalisation issue, scrip dividend or otherwise) (the "Relevant
Shares") during the two-year period commencing on the Completion
Date (the "Lock-up Period"); and
(b) Asano Company shall distribute or transfer the Relevant Shares to
and among the Namtek Staff (i.e. those persons being beneficial
owners of the shares of Asano Company and employees identified in
Schedule 6 and who remains an employee of the Namtek Group on the
second anniversary of the Completion Date) or as they may direct
according to their entitlements as set out in Schedule 6 as soon as
practicable after the second anniversary of the Completion Date.
6.02 For the avoidance of doubt,
(a) Asano Company shall be responsible for all cost and expenses
incurred in connection with the distribution or transfer under
Clause 6.01(b) and shall ensure that such distribution or transfer
is properly made in accordance with the applicable laws and
regulations;
(b) any Relevant Shares not distributed or transferred to the Namtek
Staff in accordance with Clause 6.01(b) may be dealt with by Asano
Company at its discretion after the Lock-up Period; and
Page 9
(c) the Consideration Shares allotted and issued to NTE Inc. are not
subject to any restrictions on disposal.
7. WARRANTIES
7.01 The Warrantors hereby jointly and severally:-
(a) represent, warrant and undertake to the Purchaser in the terms set
out in Schedule 4 and accept that the Purchaser is entering into
this Agreement in reliance upon each of the Warranties
notwithstanding any investigations which the Purchaser or any of
its directors, officers, employees, agents or advisors may have
made and notwithstanding any information regarding the Group which
may otherwise have come into the possession of any of the
foregoing;
(b) undertake to indemnify the Purchaser against any costs (including
all legal costs), expenses or other liabilities which it may incur
in connection with:-
(i) the settlement of any claim that any of the Warranties are
untrue or misleading or have been breached;
(ii) any legal proceedings in which the Purchaser claims that any
of the Warranties are untrue or misleading or have been
breached and in which judgment is given for the Purchaser; or
(iii) the enforcement of any such settlement or judgment.
7.02 Without prejudice to any other remedy available to the Purchaser or its
ability to claim damages on any basis which is available by reason of
any of the Warranties being untrue or misleading or being breached, the
Warrantors jointly and severally undertake to pay to the Purchaser or
(in the case of a liability to another person which has not been
discharged) to the person to whom the liability has been incurred an
amount equal to any deficiency or liability of the Group which arises
from any of the Warranties being untrue, misleading or breached and
which would not have existed or arisen if the Warranty in question had
not been untrue, misleading or breached.
7.03 Each of the Warranties shall be construed as a separate Warranty and
(save as expressly provided to the contrary) shall not be limited or
restricted by reference to or inference from the terms of any other
Warranty or any other terms of this Agreement.
7.04 Each of the Warrantors hereby undertakes that it/he will from time to
time and at any time after Completion, forthwith disclose in writing to
the Purchaser any event, fact or circumstance which may become known to
it/him after the date hereof and which is materially inconsistent with
any of the Warranties or which could reasonably be expected materially
to affect a
Page 10
purchaser for value of any of the Sale Shares or which may entitle the
Purchaser to make any claim under this Agreement.
8. ANNOUNCEMENTS
Subject to any applicable statutory or regulatory rules, or otherwise as
may be required by the Stock Exchange or other relevant regulatory
authorities, none of the parties hereto shall make any public
announcement in relation to the transactions the terms of which are set
out in this Agreement or the transactions or arrangements hereby
contemplated or herein referred to or any matter ancillary hereto or
thereto without the prior consent of the other parties (which consent
shall not be unreasonably withheld or delayed).
9. COSTS
Each party hereto shall pay its own costs in relation to the
negotiations leading up to the sale and purchase of the Sale Shares and
to the preparation, execution and carrying into effect of this
Agreement.
10. FURTHER ASSURANCE
Each of the parties hereto undertakes to the other parties that it will
do all such acts and things and execute all such deeds and documents as
may be necessary or desirable to carry into effect or to give legal
effect to the provisions of this Agreement and the transactions
contemplated hereunder.
11. MISCELLANEOUS
11.01 Any provision of this Agreement which is capable of being performed
after but which has not been performed at or before Completion and all
warranties and indemnities and other undertakings contained in or
entered into pursuant to this Agreement shall remain in full force and
effect notwithstanding Completion.
11.02 This Agreement shall be binding on and enure for the benefit of the
successors of each of the parties but shall not be assignable without
the prior written consent of the other parties.
11.03 Any remedy conferred on any party hereto for breach of this Agreement
(including the breach of any Warranty) or under the Tax Indemnity shall
be in addition and without prejudice to all other rights and remedies
available to it and the exercise of or failure to exercise any remedy
shall not constitute a waiver by such party of any of its rights or
remedies.
11.04 This Agreement constitutes the whole agreement between the parties
hereto relating to the transactions hereby contemplated (no party having
relied on any representation or warranty made by any other party which
is not a term of this Agreement) and no future variation shall be
effective unless made in writing and signed by each of the parties
hereto.
Page 11
11.05 This Agreement shall supersede all and any previous agreements or
arrangements between the parties hereto or any of them relating to the
Group or to any other matter referred to in this Agreement and all or
any such previous agreements or arrangements (if any) shall cease and
determine with effect from the date hereof.
11.06 If at any time any provision of this Agreement is or becomes illegal,
invalid or unenforceable in any respect, the remaining provisions hereof
shall in no way be affected or impaired thereby.
11.07 This Agreement may be executed in any number of counterparts and by the
parties to this Agreement on separate counterparts, each of which, when
so executed and delivered, shall be an original but all the counterparts
shall together constitute one and the same agreement.
12. NOTICES
Any notice required or permitted to be given by or under this Agreement
may be given by delivering the same to the party in question by
delivering it to such party in person or in the case of a body corporate
by delivering it to its principal place of business in Hong Kong for the
time being or as notified to the other parties from time to time or by
sending it in a prepaid envelope by registered mail to the party
concerned at its address shown in this Agreement or to such other
address in Hong Kong as the party concerned may have notified to the
others in accordance with this Clause and any such notice shall be
deemed to be served when the same would first be received at the address
of the party to whom it is addressed in the normal course of such method
of delivery.
13. GOVERNING LAW
13.01 This Agreement shall be governed by and construed in accordance with the
laws of Hong Kong and each party hereby submits to the non-exclusive
jurisdiction of the courts of Hong Kong as regards any claim or matter
arising under this Agreement.
13.02 Each of NTE Inc., Asano Company, ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇ hereby appoints
Nam Tai Group Management Limited of 15th Floor China Merchants Tower,
Shun Tak Centre, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (or such
other person, being resident or incorporated in Hong Kong, as it/he may
by notice to all other parties hereto substitute) to accept service of
all legal process arising out of or connected with this Agreement and
service on Nam Tai Group Management Limited (or such substitute) shall
be deemed to be service on NTE Inc., Asano Company, ▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇
(as the case may be).
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IN WITNESS whereof this Agreement has been entered into the day and year first
above written.
Page 13
SCHEDULE 1
Part A - The Vendors
(1) (2)
Name Address
---- ---------------------------------------------
Nam Tai Electronics, Inc. ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Asano Company Ltd. P.O. Box 957, Offshore Incorporations Centre,
Road Town, Tortola, British Virgin Islands
Part B - The Sale Shares
(1) (2) (3)
Registered and Beneficial owner No. of Sale Shares Consideration
------------------------------- ------------------ -----------------
Nam Tai Electronics, Inc. 80 65,336,470 Shares
Asano Company Limited 20 16,334,118 Shares
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SCHEDULE 2
The Company
Company name : Namtek Software Development Company Limited
Place of Incorporation : Cayman Islands
Date of Incorporation : 21 May 2002
Certificate of Incorporation No. : CR 117828
Registered Office : Century Yard, Cricket Square, ▇▇▇▇▇▇▇▇ Drive,
P.O. Box 2681GT, ▇▇▇▇▇▇ Town, Grand Cayman,
British West Indies
Authorized Capital : HKD100,000 divided into 10,000,000 common
shares with a par value of HKD0.01 each.
Issued Capital : 100 common shares (HK$1.00)
Director : ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Chairman)
▇▇▇ ▇▇▇ Qing
▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Koo ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Secretary : ▇▇▇ ▇▇▇▇ Kei, ▇▇▇▇▇▇*#
Shareholders : Nam Tai Electronics, Inc. 80 shares
Asano Company Limited 20 shares
Quorum of Shareholders' meeting : 2 members
Quorum of directors' meeting : 2 directors
Auditor : Deloitte Touche Tohmatsu
Financial year end : December 31
Tax residence : Cayman Islands
* to resign upon or as soon as practicable after Completion
# ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ to be appointed upon or as soon as practicable after
Completion
Page 15
SCHEDULE 3
The Subsidiaries
Company name : Namtek Japan Company Limited
(Kabushiki Kaisha Namtek Japan)
Place of incorporation : Japan
Date of incorporation : 30 June 2003
Certificate of incorporation no. : ▇▇▇▇-▇▇-▇▇▇▇▇▇
Registered Office : ▇-▇▇-▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇, ▇▇▇▇▇,
▇▇▇▇▇ 103-0004
Correspondence Address : ▇/▇., ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇-▇▇-▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇
Tel No. : ▇▇-▇-▇▇▇▇-▇▇▇▇
Fax No. : ▇▇-▇-▇▇▇▇-▇▇▇▇
Authorized Capital : 500,000 common shares
Issued Capital : 100,000 common shares
at issued price per share is Y100
Directors : ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Representative Director)
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Lei ▇▇▇ ▇▇▇▇, Patinda*
Statutory Auditor : ▇▇▇▇▇ ▇▇▇▇▇▇▇▇*#
Shareholder : Namtek Software Development Company Limited
(100%)
Minimum No. of Directors : 3
Minimum No. of Statutory Auditor : 1
Minimum No. of
Representative Director : 1
Financial year end : December 31
Tax residence : Japan
* to resign upon or as soon as practicable after Completion
# nominee of Purchaser to be appointed as statutory auditor as required
Page 16
SCHEDULE 3
The Subsidiaries
Company name : Shenzhen Namtek Co., Ltd.
Place of incorporation : China
Date of incorporation : December 20, 1995
Registration no. : (CHINESE CHARACTERS) 308938
(CHINESE CHARACTERS)
Duration of business licence : 15 years: 20 December, 1995 - 20 December,
2010
Securities & Exchange Commission
File No. : N/A
Registered Office : C1204-1206 Ming Wah International Convention
Centre, 8 Gui Shan Road, Shekou, Shenzhen
Total Investment : US$1,000,000
Registered Capital : US$800,000
Paid Up Capital : US$800,000
Directors : ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (Chairman)
▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
Fu Xiao ▇▇▇▇▇, ▇▇▇▇▇▇▇
Authorised Representative : ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Shareholder : Namtek Software Development Company Limited
(100%)
Quorum of Shareholders' meeting : N/A
Quorum of directors' meeting : N/A
Auditor : Yongming Certified Public Accountants
Shenzhen
Financial year end : December 31
Tax residence : Shenzhen, China
Page 17
SCHEDULE 4
The Warranties
Subject to paragraph 1(F) of this Schedule, the Warrantors hereby jointly and
severally warrant and represent to and undertake with the Purchaser in respect
of the Group that all the information contained in Part A of Schedule 1 and
Schedules 2 and 3 is correct and that:-
1. The Sale Shares
(A) The Vendors are the sole beneficial owners of the number of Sale
Shares set out in column (2) of Part B of Schedule 1, and are entitled
to sell and transfer the full legal and beneficial ownership of the
same to the Purchaser.
(B) There is no option, right to acquire, mortgage, charge, pledge, lien
or other form of security or encumbrance on, over or affecting any of
the Sale Shares or any part of the unissued share capital of the
Company and there is no agreement or commitment to give or create any
of the foregoing and no claim has been made by any person to be
entitled to any of the foregoing which has not been waived in its
entirety or satisfied in full.
(C) The Sale Shares represent the entire issued share capital of the
Company, are fully paid up and rank pari passu in all respects.
(D) There is no agreement or commitment outstanding which calls for the
allotment or issue of or accords to any person the right to call for
the allotment or issue of any shares or debentures in the Company.
(E) No consent of any third party is required for the sale of any of the
Sale Shares.
(F) Each of the warranties given by the Vendors under sub-paragraphs (A),
(B) and (E) above are given by the Vendors on a several basis and
relate only to the Sale Shares owned by such Vendor.
2. Accuracy and adequacy of information
(A) The copy of the constitutional documents of each company of the Group
produced to the Purchaser is complete and accurate in all respects,
has attached to it copies of all resolutions and other documents
required by law to be so attached and fully sets out the rights and
restrictions attaching to each class of share capital of the relevant
company.
(B) All the accounts books ledgers and financial and other records of
whatsoever kind of each company of the Group have been properly kept
in accordance with normal business practice and are in its possession
or under its control and all transactions relating to its business
have been duly and correctly recorded therein, and at the date hereof
they give and reflect a true and fair
Page 18
view of the financial, contractual and trading position of the
relevant company.
3. Compliance with legal requirements
(A) Compliance has been made in all material respects with all legal and
procedural requirements and other formalities in connection with each
company of the Group concerning; (a) its constitutional documents
(including all resolutions passed or purported to have been passed);
(b) the filing of all documents required by the Companies Ordinance or
other appropriate legislation to be filed with the Registrar of
Companies or other appropriate regulatory bodies; (c) issues of shares
debentures or other securities; (d) payments of interest and dividends
and making of other distributions and; (e) Directors and other
officers.
(B) There has been no material breach by any company of the Group or any
of its officers (in his capacity as such) of any legislation or
regulations affecting it or its business.
4. Accounts
(A) The Accounts:
(i) were prepared in accordance with accounting practices generally
accepted in Hong Kong at the time they were prepared and commonly
adopted by companies carrying on businesses similar to that
carried on by the relevant company;
(ii) are complete and accurate in all material respects and in
particular make full provision for all established liabilities or
make proper provision for (or contain a note in accordance with
good accounting practice respecting) all deferred or contingent
liabilities (whether liquidated or unliquidated) at the date
thereof;
(iii) give a true and fair view of the state of affairs and financial
position of the Group as at 31 December 2004 and of the results
of the Group for the financial period ended on such date; and
(iv) are not affected by any unusual or non-recurring items which are
not disclosed therein.
(B) The Group does not have any outstanding liability for taxation of any
kind which has not been provided for in the Accounts.
(C) Each company of the Group does not have any capital commitment nor is
it engaged in any scheme or project requiring the expenditure of
capital.
Page 19
(D) Each company of the Group owns free from encumbrance all its
undertaking and assets shown or comprised in the Accounts and all such
assets are in its possession or under its control.
(E) In relation to all financing arrangements to which any company of the
Group is a party:-
(i) there has been no contravention of or non-compliance with any
provision of any such document, and nothing has been done or
omitted to be done whereby the continuance of the said
arrangements and facilities in full force and effect might be
affected or prejudiced; and
(ii) no steps for the enforcement of any encumbrances have been taken
or threatened.
(F) Having regard to the existing facilities available to it, each company
of the Group has sufficient working capital for the purposes of
continuing to carry on its businesses in their present form and at
present levels of turnover for the foreseeable future and for the
purposes of carrying out and fulfilling in accordance with their terms
all orders, projects and other contractual obligations which have been
placed with or undertaken by the relevant company.
5. Events since Accounts Date
Since 31 December 2004:-
(i) there has been no material adverse change in the financial condition
or prospects of the Group and each company of the Group has entered
into transactions and incurred liabilities only in the normal ordinary
course of its business;
(ii) no resolution of any company of the Group in general meeting has been
passed;
(iii) each company of the Group has not declared, paid or made nor is
proposing to declare, pay or make any dividend or other distribution
save as expressly set out in Clause 5.01(b);
(iv) the financial year end of each company of the Group has continued to
be and has not changed from 31 December;
(v) no event has occurred which would entitle any third party (with or
without the giving of notice) to call for the repayment of
indebtedness prior to its normal maturity date;
Page 20
(vi) the business of each company of the Group has been carried on in the
ordinary and usual course and in the same manner (including nature and
scope) as in the past; and
(vii) no asset of any company of the Group has been acquired or disposed of
on capital account, or has been agreed to be acquired or disposed of,
and no liability has been created or has otherwise arisen, other than
in the ordinary course of business as previously carried on.
6. Contracts, commitments and financial and other arrangements
(A) There are not now outstanding, nor will there be outstanding at
Completion:-
(i) any contracts of service with directors or employees which cannot
be terminated by three months' notice or less or by reasonable
notice without giving rise to any claim for damages or
compensation (other than a statutory redundancy payment);
(ii) any contract to which any company of the Group is a party which
is of a long-term and non-trading nature or contains any unusual
or unduly onerous provision disclosure of which could reasonably
be expected to influence the decision of a purchaser for value of
any or all of the Sale Shares;
(iii) any material arrangements (contractual or otherwise) between any
company of the Group and any party which will or may be
terminated or materially and prejudicially affected as a result
of the sale of the Sale Shares or of compliance with any other
provision of this Agreement;
(iv) any contract which materially restricts the freedom of any
company of the Group to carry on the business now carried on by
it in any part of the world.
(B) No charges, rights of security or third party rights of any kind
whatsoever have been created or agreed to be created or permitted to
arise over any of the assets of any company of the Group.
(C) No company of the Group is a party to nor has it any liability
(present or future) under any loan agreement, debenture, guarantee,
indemnity or letter of credit or leasing, hiring, hire purchase,
credit sale or conditional sale agreement nor has it entered into any
contract or commitment involving, or likely to involve, obligations or
expenditure of an unusual or exceptional nature or magnitude.
(D) Save for any guarantee or warranty implied by law, no company of the
Group has given any guarantee or warranty, or made any representation,
in respect of goods or services supplied or contracted to be supplied
by it or accepted
Page 21
any liability or obligation that would apply after any such goods or
services had been supplied by it.
7. Insurance
Each company of the Group has effected and maintains valid policies of
insurance in an amount and to the extent that it is prudent to do so in the
business carried on by it. All premiums due in respect of such policies of
insurance have been paid in full and all the other material conditions of
the said policies have been performed and observed in full. No claim is
outstanding either by the insurer or the insured under any of the said
policies.
8. Litigation
No company of the Group is engaged whether as plaintiff, defendant or
otherwise in any material litigation or arbitration, administrative or
criminal or other proceeding and no litigation or arbitration,
administrative or criminal or other proceedings against any company of the
Group is pending.
9. Insolvency
No receiver has been appointed of the whole or any part of the assets or
undertaking of any company of the Group. No petition has been presented, no
order has been made and no resolution has been passed for the winding-up or
dissolution of any company of the Group.
10. Delinquent acts
No company of the Group has committed nor is liable for any criminal,
illegal, unlawful or unauthorised act or breach of any obligation whether
imposed by or pursuant to statute, contract or otherwise.
11. Tax returns, deductions and withholdings
(A) Each company of the Group has, in respect of all years of assessment
since incorporation falling before the date of this Agreement, made or
caused to be made all proper returns, and has supplied or caused to be
supplied all information regarding taxation matters which it is
required to make or supply to any revenue authority (whether in Hong
Kong or elsewhere) and there is no dispute or disagreement nor is any
contemplated with any such authority regarding liability or potential
liability to any tax or duty (including in each case penalties and
interest) recoverable from any company of the Group or regarding the
availability to any company of the Group of any relief from tax or
duty.
(B) Each company of the Group has made all deductions in respect, or on
account, of any tax from any payments made by it which it is obliged
or entitled to make and has accounted in full to the appropriate
authority for all amounts so deducted.
Page 22
12. Stamp and other duties
Each company of the Group has paid promptly all sums payable by it under
the Stamp Duty Ordinance, the Companies Ordinance and any other Ordinance
or legislation and no sums are presently payable by any company of the
Group under any such Ordinance or legislation.
13. Employment
(A) No employee or consultant or former employee or consultant has made or
has any claims whatsoever against any company of the Group. Full
provision has been made in the Accounts for all and any compensation
or severance payment for which any company of the Group is liable in
respect of loss of office, wrongful dismissal, redundancy or unfair
dismissal.
(B) No company of the Group has outstanding undischarged liability to pay
to any governmental or regulatory authority in any jurisdiction any
contribution, taxation or other impost arising in connection with the
employment or engagement of personnel by it.
(C) The details of remuneration payable to every Director and senior
employee have been supplied to the Purchaser and are complete and
correct.
14. Interests in companies, partnerships or joint ventures
Save for the Subsidiaries, the Company has no interest in the share capital
of any company or in any partnership or joint venture.
15. Patents and trade marks, etc.
To the best of the knowledge and belief of the Warrantors after making due
and careful enquiries,
(A) the processes employed and the products and services dealt in by the
Group do not use, embody or infringe any Hong Kong or foreign patents,
registered designs, know-how or trade secrets, copyrights, trade marks
or similar intellectual property rights (whether registered or not)
("IP Rights") and no claims for infringement have been made and no
applications are pending of which the Warrantors are aware which if
pursued or granted might be material thereto;
(B) all Hong Kong or foreign IP Rights, and all pending applications
therefor which are or are likely to be material to the business of the
Group, are (or where appropriate in the case of pending applications
will be):-
(i) legally and beneficially vested in the Company or the relevant
Subsidiary;
(ii) valid and enforceable;
Page 23
(iii) not being infringed;
(iv) not subject to any licence or authority in favour of another;
(v) in the case of such rights as are registered or the subject of
applications for registration fully disclosed in writing to the
Purchaser.
18. Repetition at Completion
All warranties and representations contained in the foregoing provisions of
this Schedule shall be deemed to be repeated immediately before Completion
and to relate to the facts then existing.
Page 24
SCHEDULE 5
The Tax Indemnity
Dated _______________ 2005
NAM TAI ELECTRONICS, INC.
ASANO COMPANY LTD.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇ QING
AS WARRANTORS
NAM TAI ELECTRONIC & ELECTRICAL
PRODUCTS LIMITED
AS PURCHASER
NAMTEK SOFTWARE DEVELOPMENT
COMPANY LIMITED
AS COMPANY
NAMTEK JAPAN COMPANY LIMITED
SHENZHEN NAMTEK CO., LTD.
AS SUBSIDIARIES
----------
DEED OF INDEMNITY
in respect of
TAXATION
----------
(▇▇▇▇▇▇▇ ▇▇▇▇▇▇ & MASTER LOGO)
Page 25
THIS DEED OF INDEMNITY is dated ________ 2005 and is made
BETWEEN:-
(1) NAM TAI ELECTRONICS, INC., a company incorporated in the British Virgin
Islands with its registered office at ▇.▇. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ASANO COMPANY LTD., a company incorporated in the
British Virgin Islands with its registered office at P.O. Box 957, Offshore
Incorporations Centre, Road Town, Tortola, British Virgin Islands, ▇▇▇▇▇▇▇▇
▇▇▇▇▇ of ▇-▇▇-▇▇, ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇-▇▇▇, ▇▇▇▇▇-▇▇▇, ▇▇▇▇▇ and ▇▇▇ ▇▇▇
QING of Room 701, 8B Haiqin Garden, Shekou, Nanshan District, Shenzhen,
Guangdong Province, P.R.C. (together, the "Warrantors"); and
(2) NAM TAI ELECTRONIC & ELECTRICAL PRODUCTS LIMITED, a company incorporated in
the Cayman Islands with its Hong Kong Office at 15th Floor China Merchants
Tower, Shun Tak Centre, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (the
"Purchaser");
(3) NAMTEK SOFTWARE DEVELOPMENT COMPANY LIMITED whose registered office is at
Codan Trust Company (Cayman) Limited, Century Yard, Cricket Square,
▇▇▇▇▇▇▇▇ Drive, P.O. Box 2681GT, ▇▇▇▇▇▇ Town, Grand Cayman, British West
Indies ("the Company");
(4) The companies whose names and registered offices are set out in columns (1)
and (2) of the Schedule hereto ("the Subsidiaries")
1. DEFINITIONS
1.01 In this Deed, in addition to the above definitions, the following words
and expressions shall have the following meanings:-
"Taxation" means (i) any liability to any form of taxation, duty,
impost, levy, rate, or other amount payable to any revenue, customs or
fiscal authorities whenever created or imposed and of any part of the
world, including, without limitation, profits tax, provisional profits
tax, interest tax, salaries tax, property tax, taxes on income, estate
duty, capital duty, stamp duty, payroll tax, rates, customs and excise
duties and other similar liabilities, (ii) such an amount or amounts as
is referred to in Clause 1.03 and (iii) all interest, penalties, costs,
charges and expenses incidental or relating to the liability to Taxation
or the deprivation of any Relief which is the subject of this indemnity
to the extent that the same is payable or suffered by the Company or any
Subsidiary;
"Claim" includes any assessment, notice, demand or other document issued
or action taken by or on behalf of the Inland Revenue Department of Hong
Kong or any other statutory or central, provincial, regional or local
governmental authority whatsoever in Hong Kong or in any other part of
the world from which it appears that the Company or any Subsidiary is
liable or is sought to be made liable for any payment of any form of
Taxation or to be
Page 26
deprived of any Relief which Relief would, but for the Claim, have been
available to the Company or any Subsidiary;
"Hong Kong" means the Hong Kong Special Administrative Region of the
People's Republic of China;
"Relief" includes any relief, allowance, set-off or deduction in
computing profits or credit or right to repayment of Taxation available
to the Company or any Subsidiary granted by or pursuant to any
legislation concerning or otherwise relating to Taxation;
"the Agreement" means the Agreement made on 8th April 2005 between the
Vendors, the Purchaser and the Warrantors relating to the sale and
purchase of shares of the Company.
1.02 In this Deed, references to Clauses and Schedules are to clauses and
schedules of this Deed, words importing the singular include the plural
and vice versa, words importing a gender include any gender, references
to persons include bodies corporate or unincorporate and the headings to
the Clauses in this Deed are for convenience only and have no legal
effect.
1.03 In the event of any deprivation of any Relief, there shall be treated as
an amount of Taxation for which liability has arisen the amount of such
Relief, applying the relevant rates of Taxation in force in the period
or periods in respect of which Relief would have applied or (where the
rate has at the relevant time not been fixed) the last known rate and
assuming that Relief was capable of full utilisation by the relevant
company .
1.04 Words and phrases defined in the Agreement shall have the same meaning
when used in this Deed.
2. INDEMNITY
2.01 Subject as hereinafter provided, the Warrantors hereby jointly and
severally covenant and agree with each of the Purchaser, the Company and
the Subsidiaries that they will fully and effectually indemnify and at
all times keep fully and effectually indemnified each of the Purchaser,
the Company and the Subsidiaries from and against:-
(a) the amount of any and all Taxation falling on the Group resulting
from or by reference to any income, profits, gains, transactions,
events, matters or things earned, accrued, received, entered into
or occurring up to the date hereof, whether alone or in conjunction
with any other circumstances whenever occurring and whether or not
such Taxation is chargeable against or attributable to any other
person, firm or company, including any and all Taxation resulting
from the receipt by the Group or the Purchaser of any amounts paid
by the Warrantors under this Deed of Indemnity; and
Page 27
(b) any and all costs (including all legal costs) or expenses which the
Purchaser or the Group may incur in connection with:-
(i) the settlement of any claim under this Tax Indemnity;
(ii) any legal proceedings in which the Purchaser or any company of
the Group claims under or in respect of this Tax Indemnity but
only if the Purchaser or the relevant company of the Group has
first made a demand under this Tax Indemnity and the relevant
Warrantor has neglected or defaulted under such demand, and in
which judgment is given for the Purchaser or any company of
the Group; or
(iii) the enforcement of any such settlement or judgment.
2.02 This Tax Indemnity does not cover any Claim and the Warrantors shall be
under no liability under this indemnity in respect of Taxation:-
(a) to the extent that provision has been made for such Taxation in the
Accounts; or
(b) which would not have arisen but for any act or omission by the
Purchaser or any company of the Group voluntarily effected without
the prior written consent or agreement of the Warrantors, otherwise
than in the ordinary course of business after the date hereof; or
(c) for which any company of the Group is primarily liable as a result
of transactions in the ordinary course of normal day to day trading
operations since 31 December 2004; or
(d) to the extent that such Claim arises or is incurred as a result of
the imposition of Taxation as a consequence of any retrospective
change in the law or Inland Revenue practice coming into force
after the date hereof or to the extent such Claim arises or is
increased by an increase in rates of Taxation after the date hereof
with retrospective effect.
2.03 No claim under this Tax Indemnity shall be made by more than one of the
Purchaser, the Company and the Subsidiaries in respect of the same
Taxation.
2.04 No claim under this Tax Indemnity shall be made if a claim in respect
thereof has been made under the Agreement.
2.05 The Warrantors shall not be liable in respect of any claim under this
Tax Indemnity after the sixth anniversary of Completion except for
claims notice of which has been given to the Warrantors on or prior to
such sixth anniversary.
Page 28
3. CLAIMS
3.01 In the event of any Claim arising, the Purchaser shall, by way of covenant
but not as a condition precedent to the liability of the Warrantors
hereunder, give or procure that notice thereof is given, as soon as
reasonably practicable, to the Warrantors and, as regards any Claim, the
Company or the relevant Subsidiary and/or the Purchaser shall take such
action to cause the Claim to be withdrawn, or to dispute, resist, appeal
against, compromise or defend the Claim and any determination in respect
thereof, but subject to prior notice being given to the Warrantors and
subject to it being indemnified and secured to its reasonable satisfaction
by the Warrantors from and against any and all losses, liabilities
(including additional Taxation), damages, interest, penalties, costs,
charges and expenses which may be thereby sustained or incurred.
3.02 Without the prior approval of the Purchaser (whose approval shall not be
unreasonably withheld), the Warrantors shall make no settlement of any
Claim nor agree any matter in the course of disputing any Claim likely to
affect the amount thereof or the future taxation liability of the Group.
4. REFUNDS
If, after the Warrantors have made any payment pursuant to this Deed, any
company of the Group shall receive a refund of all or part of the relevant
Taxation, the relevant company shall repay to the Warrantors a sum
corresponding to the balance of the refund remaining after deducting the
aggregate of (i) any costs, charges and expenses payable or sustained or
incurred by the Group and/or the Purchaser in recovering such refund, and
(ii) the amount of any additional Taxation which may be suffered or
incurred by the Group in consequence of such refund.
5. NOTICES
The provisions of Clause 12 of the Agreement (mutatis mutandis) shall be
incorporated in and be deemed to be part of this Deed.
6. BINDING EFFECT
This Deed shall enure to the benefit of and be binding on each party and
its respective successors and assigns.
7. ENTIRETY OF DEED AND SEVERABILITY
7.01 The terms and conditions herein contained constitute the entire agreement
between the parties hereto relating to the subject matter hereof and shall
supersede all previous communications, oral or written, between the parties
hereto with respect to the subject matter hereof which are inconsistent
with the provisions of this Deed.
Page 29
7.02 Any provision of this Deed prohibited by or unlawful or unenforceable under
any applicable law actually applied by any court of competent jurisdiction
shall, to the extent required by such law, be severed from this Deed and
rendered ineffective so far as is possible without modifying the remaining
provisions of this Deed. Where, however, the provisions of any such
applicable law may be waived, they are hereby waived by the parties hereto
to the full extent permitted by such law to the end that this Deed shall be
valid, binding and enforceable in accordance with its terms.
8. AMENDMENT
This Deed may be varied, amended or modified only by agreement under seal
of all parties.
9. RELEASE OF OBLIGATIONS
Any liability of the Warrantors under this Deed may, in whole or in part,
be released, compounded or compromised by any company of the Group and/or
the Purchaser, in its sole and absolute discretion, or time or other
indulgence may be granted to the Warrantors by any company of the Group
and/or the Purchaser, in its sole and absolute discretion, without in any
way prejudicing or affecting any of its other rights, powers or remedies
against the Warrantors under any other liability hereunder PROVIDED ALWAYS
that any release or any time or indulgence, if made or given, shall only be
made or given to all of the Warrantors and not one of them only.
10. TIME
Time shall be of the essence of this Deed.
11. COUNTERPARTS
This Deed may be executed in any number of counterparts and by the parties
to this Deed on separate counterparts, each of which, when so executed and
delivered, shall be an original but all the counterparts shall together
constitute one and the same deed.
12. LAW AND JURISDICTION
12.01 This Deed shall be governed by and construed in all respects in accordance
with the laws of Hong Kong and the parties irrevocably submit to the
non-exclusive jurisdiction of the Hong Kong courts in relation to any
proceedings arising out of or in connection with this Deed, but this Deed
may be enforced in any other courts of competent jurisdiction.
12.02 Each of NTE Inc., Asano Company, ▇▇. ▇▇▇▇▇ and ▇▇. ▇▇▇ hereby appoints Nam
Tai Group Management Limited of 15th Floor China Merchants Tower, Shun Tak
Centre, ▇▇▇-▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇ (or such other person,
being resident or incorporated in Hong Kong, as it/he
Page 30
may by notice to all other parties hereto substitute) to accept service of
all legal process arising out of or connected with this Deed and service on
Nam Tai Group Management Limited (or such substitute) shall be deemed to be
service on NTE Inc., Asano Company, ▇▇. ▇▇▇▇▇ or ▇▇. ▇▇▇ (as the case may
be).
IN WITNESS whereof this Deed has been executed under seal on the date first
above written.
Page 31
SCHEDULE
The Subsidiaries
(1) (2)
Name Address
---- -------
Namtek Japan Company Limited Registered Office :
▇-▇▇-▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇▇▇ 103-0004
Correspondence Address :
▇/▇., ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇-▇▇-
▇▇ ▇▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇-▇▇,
▇▇▇▇▇, ▇▇▇▇▇ 103-0004
Shenzhen Namtek Co., Ltd. C1204-1206 Ming Wah International
Convention Centre, 8 Gui Shan Road,
Shekou, Shenzhen
Page 32
[Execution Clause of the Tax Indemnity]
SEALED with the COMMON SEAL of )
NAM TAI ELECTRONICS, INC. )
and signed by )
in the presence of:- )
SEALED with the COMMON SEAL of )
ASANO COMPANY LTD. )
and signed by )
in the presence of:- )
SIGNED, SEALED and DELIVERED )
by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of:- )
SIGNED, SEALED and DELIVERED )
by ▇▇▇ ▇▇▇ QING )
in the presence of:- )
Page 33
SCHEDULE 6
NAMTEK STAFF
SERVICE NO. OF
# NAME PINYIN DEPT POSITION JOINED BY 2004/E PERCENTAGE SHARES
-- ---- ------ ---- -------- ------- --------- ---------- ------
1 (CHINESE CHARACTERS) ▇▇▇ ▇▇▇▇▇▇▇ V.M.D 1996.06 8.06 44.50% 7268683
2 Asano Kazuhiro M.D 1995.02 9.10 26.70% 4361210
3 ▇▇▇▇▇ ▇▇▇▇▇▇ N/A N/A N/A 17.80% 2907473
4 (CHINESE CHARACTERS) ▇▇▇▇ ▇▇▇▇ Dict.Grp Manager 1999.01 5.11 4.00% 653365
5 (CHINESE CHARACTERS) ▇▇▇▇▇ ▇▇▇▇▇ QA Supervisor 1997.05 7.07 0.80% 130673
6 (CHINESE CHARACTERS) ▇▇▇▇ ▇▇▇▇▇▇▇ QA Supervisor 1999.12 5.00 0.80% 130673
7 (CHINESE CHARACTERS) Yan Cunqiang Dict.Grp Supervisor 2001.03 3.09 0.80% 130673
8 (CHINESE CHARACTERS) ▇▇▇▇ ▇▇▇▇▇▇▇▇ Dict.Grp Supervisor 2001.03 3.09 0.80% 130673
9 ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Sr. Mktg. Mgr/NKJP 2002.06 2.06 0.80% 130673
10 (CHINESE CHARACTERS) Wang Qien Dict.Grp Leader 1996.04 8.08 0.60% 98005
11 (CHINESE CHARACTERS) Luo Yuandong Dict.Grp Leader 1999.12 5.00 0.60% 98005
12 (CHINESE CHARACTERS) Jian Weijian R&D Supervisor 2003.04 1.08 0.40% 65336
13 (CHINESE CHARACTERS) He Hai Dict.Grp Leader 2001.07 3.05 0.40% 65336
14 (CHINESE CHARACTERS) Zhao Yu R&D Supervisor 2004.03 0.09 0.30% 49002
15 (CHINESE CHARACTERS) Luo Dehua R&D Leader 2003.05 1.07 0.15% 24501
16 (CHINESE CHARACTERS) Li Shijun R&D Leader 2003.09 1.03 0.15% 24501
17 (CHINESE CHARACTERS) ▇▇ ▇▇▇ R&D Leader 2004.03 0.09 0.10% 16334
18 (CHINESE CHARACTERS) ▇▇▇▇ ▇▇▇▇▇▇ R&D Leader 2004.04 0.08 0.10% 16334
19 (CHINESE CHARACTERS) Zhao Zhongwei R&D Leader 2004.04 0.08 0.10% 16334
20 (CHINESE CHARACTERS) ▇▇▇▇▇ ▇▇▇▇ R&D Leader 2004.07 0.05 0.10% 16334
------ --------
Total 100.00% 16334118
====== ========
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SCHEDULE 7
TERMS OF SUPPLEMENTAL LETTERS REGARDING SERVICE
As one of the conditions to Completion as set out in Clause 2.01(c) and in
consideration of the Purchaser entering into the Agreement, each of ▇▇. ▇▇▇▇▇
and ▇▇. ▇▇▇ (the "Employee") shall enter into a supplemental letter agreement
with the Purchaser regarding his service with the Group containing, among others
(but not limited to), the following terms:
1. An unconditional and irrevocable undertaking to the Purchaser to the effect
that in the event of the Employee terminating his employment with the Group
or serving notice to the Group to terminate his employment ("Termination
Event") at any time before the third anniversary of the Completion Date,
the Employee shall pay compensation to the Purchaser. The amount of such
compensation shall be equal to the Employee's income under such employment
for the period commencing on the date of the Termination Event to the third
anniversary of the Completion Date.
2. A confidentiality undertaking during and after the termination of his
employment in respect of all business, technical and client information
received by the Employee in the course of his employment, and an indemnity
in favour of the Group in connection with any losses incurred by the Group
as a result of a breach of such undertaking.
3. A non-competition and non-solicitation undertaking covering the term of his
employment and the 6-month period after the termination of his employment.
4. A confirmation that any invention or intellectual property rights or
information created or discovered by the Employee during the course of his
employment in any way relating to the business of the Group or the group
companies of the Purchaser shall irrespective of any termination of his
employment belong to and be the absolute property of the Group or the group
companies of the Purchaser (as the case may be).
5. A confirmation that such supplemental letter agreement is entered into on a
fair and equitable basis and voluntarily by the Employee in reliance of his
own judgement and knowledge.
Page 35
SIGNED by ▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ )
for and on behalf of )
NAM TAI ELECTRONICS, INC. )
in the presence of:- )
▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
SIGNED by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ )
for and on behalf of )
ASANO COMPANY LTD. )
in the presence of:- )
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED by ▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇ )
for and on behalf of )
NAM TAI ELECTRONIC & )
ELECTRICAL PRODUCTS LIMITED )
and signed by )
in the presence of:- )
Chuang ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇ 36
SIGNED, SEALED and DELIVERED )
by ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ )
in the presence of:- )
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
SIGNED, SEALED and DELIVERED )
by ▇▇▇ ▇▇▇ QING )
in the presence of:- )
▇▇▇ Kar ▇▇▇▇, ▇▇▇▇▇▇
Page 37
