June 24th, 2004
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ASSET PURCHASE AGREEMENT
by and between
International DisplayWorks (Hong Kong) Limited
and
Grand Pacific Petrochemical Corporation
June 24th , 2004
▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇, ONE ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
June 24, 2004
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TABLE OF CONTENTS
Article 1. Transfer of Assets...............................................1
1.1 Transfer of Assets............................................1
Article 2. Purchase Price...................................................2
2.1 Amount........................................................2
2.2 Manner of Payment.............................................2
Article 3. Closing..........................................................3
3.1 Closing.......................................................3
3.2 General Procedure.............................................3
Article 3A. Possession, Title and Loss.....................................4
Article 4. Representations and Warranties of Seller.........................5
4.1 Incorporation and Corporate Power.............................5
4.2 Execution, Delivery; Valid and Binding Agreement..............5
4.3 Authority; No Breach..........................................5
4.4 Condition.....................................................5
4.5 Governmental Authorities; Consents............................6
4.6 Absence of Undisclosed Liabilities............................6
4.7 Assets........................................................6
4.8 Insurance.....................................................6
4.9 Preservation of Conditions....................................6
4.10 Taxes.........................................................6
4.11 Intellectual Property Rights..................................7
4.12 Litigation....................................................7
Article 5. Representations and Warranties of Buyer..........................7
5.1 Incorporation and Corporate Power.............................7
5.2 Execution, Delivery; Valid and Binding Agreement..............7
Article 6. Covenants of Seller..............................................8
6.1 Conduct of the Business; Assistance; Insurance................8
6.2 Conditions....................................................8
Article 7. Covenants of Buyer...............................................8
7.1 Packaging Documentation.......................................8
7.2 Conditions....................................................8
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Article 8. Conditions to Closing............................................9
8.1 Conditions to Buyer's Obligations.............................9
8.2 Conditions to Seller's Obligations............................11
Article 9. Termination......................................................11
9.1 Termination...................................................11
9.2 Effect of Termination.........................................11
Article 10. Survival; Indemnification.......................................12
10.1 Survival, Indemnification.....................................12
10.2 Legal Proceedings.............................................12
Article 11. Miscellaneous...................................................12
11.1 Press Releases and Announcements..............................12
11.2 Taxes and Expenses............................................12
11.3 Further Assurances............................................13
11.4 Amendment and Waiver..........................................13
11.5 Notices.......................................................13
11.6 Assignment....................................................14
11.7 Severability..................................................15
11.8 Complete Agreement............................................15
11.9 Counterparts..................................................15
11.10 Governing Law.................................................15
11.11 Dispute Resolution............................................15
SCHEDULE 1..................................................................17
SCHEDULE 2..................................................................18
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ASSET PURCHASE AGREEMENT
This ASSET PURCHASE AGREEMENT (this "Agreement"), dated as of June 24th,
2004, is made and entered into BY AND BETWEEN:
(1) INTERNATIONAL DISPLAYWORKS (HONG KONG) LIMITED, a company incorporated
under the laws of Hong Kong whose registered office is at ▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ City, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, Special
Administrative Region of Hong Kong ("Hong Kong") ("Buyer"); and
(2) GRAND PACIFIC PETROCHEMICAL CORPORATION, a corporation incorporated
under the laws of Taiwan whose registered official office is at ▇▇. ▇, ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ of China ("Taiwan")
("Seller").
WHEREAS:
A. Buyer wishes to purchase from Seller and Seller wishes to sell to
Buyer all the assets identified in Section 1 of this Agreement in the
manufacture of Liquid Crystal Display and Module ("LCM") subject to the
conditions set forth in this Agreement; and
B. Seller wishes to allow Buyer to remove the abovementioned assets from
the premises at the third, fourth and fifth floors of ▇▇. ▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇
▇▇▇▇, Science-Based Industrial Park, Hsinchu 300, Taiwan, Republic of China
("Premises"). Buyer shall, at its own expense, appoint (a) packaging and
shipping contractor(s) acceptable to the Seller for the purposes of delivering
the assets on board an ocean going cargo vessel(s) at a port in Taiwan, as
selected by the shipper of the buyer ("Remove" and "Removal").
NOW, THEREFORE, in consideration of the mutual covenants, representations,
warranties and agreements and the conditions set forth in this Agreement, Buyer
and Seller hereby agree as follows:
Article 1. Transfer of Assets
1.1 Transfer of Assets. On the terms and subject to the conditions set
forth in this Agreement, Seller shall, at the Closing (as defined in Section 3.1
hereof), sell, transfer and assign to Buyer, and Buyer shall purchase and
acquire from Seller, all of Seller's right, title and interest, as of the
Closing Date (as defined in Section 3.1 hereof), in and to all of the assets of
Seller (collectively, the "Assets") identified below:
(a) All of the equipment used in the manufacture of LCM disclosed to
Buyer in inspection visits conducted in March, April and May 2004 and
located at the Premises on the date of this Agreement including, but not
limited to, the items listed in Part A of Schedule 1;
(b) All spare parts and consumable items (such as specialist oils,
lubricants and seals) located at the Premises on the date of this Agreement
including, but not limited to, the items listed in Part B of Schedule 1;
(c) All documents or other tangible materials, if any, embodying
technology or intellectual property rights used in connection with each
Asset, located at the Premises on the date of this Agreement including,
without limitation, all software
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programs (including both source and object codes) and related
documentation for software used in or developed for support of each Asset;
(d) All other intellectual property rights, if any, used in, developed
for use in or necessary to the use of each Asset as now used and located at
the Premises on the date of this Agreement; and
(e) All specialist tools or equipment, if any, supplied with, and
required for the maintenance of each Asset and located at the Premises on
the date of this Agreement.
1.2 No Liabilities Assumed. Buyer shall not assume, and nothing contained
in this Agreement shall be construed as an assumption by Buyer of, any
liabilities, obligations or undertakings of Seller or any other party of any
nature whatsoever, whether accrued, absolute, fixed or contingent, known or
unknown due or to become due, unliquidated or otherwise.
Article 2. Purchase Price
2.1 Amount. The purchase price (the "Purchase Price") for the Assets shall
be Six Million United States Dollars (US$6,000,000).
2.2 Manner of Payment.(a) Upon presentation by Seller to Buyer of a
registration record in respect of the Assets issued by the Science Park
Administration, Hsinchu Science Park ("HSPA") indicating that the Assets are
unencumbered by any chattel mortgages of any sort, including those in favor of
Chinatrust Commercial Bank and Far Glory Life Insurance Co., Ltd. securing the
original respective amounts of Six Hundred Sixty Million New Taiwan Dollars
(NT$660,000,000) and Two Hundred Forty Million New Taiwan Dollars
(NT$240,000,000), Buyer shall pay Six Million United States Dollars
(US$6,000,000) representing the Purchase Price, to a joint account in the name
of both Seller and Buyer ("Escrow Account") maintained with The Hongkong and
Shanghai Banking Corporation Limited acting as escrow agent as contemplated by
this Agreement ("Escrow Agent").
(b) The monies held in the Escrow Account shall be held with the Escrow
Agent in accordance with the Escrow Agreement. Before and during Removal of the
Assets, the following shall occur:
(1) Buyer shall instruct its shipper to provide an estimate of the
number of containers required to Remove each Asset;
(2) The Buyer and Seller shall allocate the Purchase Price among the
Assets as set forth in Schedule 1 prior to the Commencement of Closing, and
the allocation shall be updated in such a manner as determined by Buyer
with the prior consent of Seller, which shall not be unreasonably withheld;
(3) On Removal of a container containing part of an Asset, Buyer and
Seller shall forthwith give joint instructions to the Escrow Agent to pay
to the Seller that fraction of the allocated price referred to in Section
2.2(b)(2) represented by the number of containers estimated to be required
in subsection 2.2(b)(1) above;
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(4) On Removal of a container containing one or more Assets in their
entirety, Buyer and Seller shall forthwith give joint instructions to the
Escrow Agent to pay to the Seller the value of the Assets in subsection
2.2(b)(2) above;
(5) If the actual number of containers required to Remove an Asset
exceeds the number estimated by the shipper in subsection 2.2(b)(1), Buyer
may Remove the remainder of the Asset at will; and
(6) If the actual number of containers required to Remove an Asset is
less than the number estimated by the shipper in subsection 2.2(b)(1),
Buyer and Seller shall forthwith instruct the Escrow Agent to pay the
balance attributable as calculated in subsection 2.2(b)(2) when the last
container containing the Asset is Removed.
Article 3. Closing
3.1 Closing. Closing of the transactions contemplated by this Agreement
(the "Closing") shall commence at the offices of Formosa Transnational Attorneys
at Law in Taiwan and simultaneously at the Premises, on or before July 31st 2004
or three business days after all conditions to the parties' obligations set
forth in Article 8 hereof have been satisfied or waived by the party entitled to
the benefit of such condition, which ever is the earlier, or at such other place
and on such other date as is mutually agreeable to Buyer and Seller. Closing
shall end at the time the Assets are totally Removed. The date(s) on which the
Closing commences and ends shall be referred to herein as the "Commencement of
Closing Date" and "Completion of Closing Date" and the date(s) between therein
shall be referred to herein as the "Closing Date".
3.2 General Procedure. On the Commencement of Closing Date, each party
shall deliver to the party entitled to receipt thereof the documents required to
be delivered pursuant to Article 8 hereof and such other documents, instruments
and materials (or complete and accurate copies thereof, where appropriate) as
may be reasonably required in order to effectuate the intent and provisions of
this Agreement, and all such documents, instruments and materials shall be
proper in form and substance. The conveyance, transfer, assignment and delivery
of the Assets shall be effected by Seller's execution and delivery to Buyer of a
▇▇▇▇ of sale substantially in the form attached hereto as Schedule 2 (the "▇▇▇▇
of Sale") and such other instruments of conveyance, transfer, assignment and
delivery as Buyer shall reasonably request to cause Seller to transfer, convey,
assign and deliver the Assets to Buyer.
Article 3A. Possession, Title and Loss
3A.1 Possession.
(a) Buyer shall take possession of the Assets by their Removal.
(b) Upon execution of this Agreement and confirmation by Seller that all
necessary inspections on the Assets have been completed by the Taiwan customs
authorities, Buyer, Buyer's agents, shippers and logistics service providers
shall have the right to commence de-installation, de-commissioning,
disassembling, packaging or any other action required for the Removal of the
Assets. Buyer shall be responsible for any damage to the Assets caused by the
Buyer's agents, shippers, and logistic service providers in such Removal.
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(c) Buyer shall totally Remove the Assets no later than 77 days after the
date under subsection 3A.1(b) above.
(d) Buyer shall, with the prior written consent of Seller, which shall not
be unreasonably withheld and which shall be issued expeditiously, have the right
to effect such demolitions or alterations to the Premises, including to its
entrances and walls, as necessary to permit Removal of the Assets in a whole or
semi-assembled state. Buyer shall take reasonable steps not to damage the
Premises as a result of such demolitions or alterations but shall not be liable
to make good or repair the Premises subsequently.
(e) The following events shall delay the Removal of the Assets without any
liabilities (save as to costs under subsection 3A.1(e)(2) below) to the parties:
(1) In the event of riots, civil commotion or civil unrest, shipping
or other transportation strikes within Taiwan, the deadlines for Removal of
the Assets may be extended until a normal state of affairs is
re-established.
(2) In the event of the imposition of an export ban from Taiwan or an
import ban to Hong Kong or any other location that Buyer may elect, the
parties shall apply best efforts in good faith to establish an alternative
arrangement, and shall bear the additional costs equally.
(f) In the event of a material misrepresentation, breach of warranty or
breach of covenant by Seller regarding the Removal of the Assets, Buyer may
reasonably delay the Removal of the Assets without prejudice to any of its
rights under this Agreement.
3A.2 Title. Title of each Asset shall pass to Buyer from Seller on Removal.
3A.3 Loss. In an event of loss to Assets due to fire, theft, explosion,
water damage (including from flood or typhoon) or earthquake and Buyer elects
not to terminate this Agreement prior to the Completion of Closing Date, Buyer
shall not be required to pay to the Seller the value of the Assets which are the
subject of an event of loss. Seller agrees to:
(a) prosecute or pursue with the insurer such insurance claim;
(b) pay fifty per cent. (50%) of the value of the Assets in subsection
2.2(b) which are the subject of an event of loss; and
(c) make such payment within the earlier of 60 days of the date of the
event of loss, or the date of receipt of the net proceeds of claim under the
insurance.
Article 4. Representations and Warranties of Seller
Seller hereby represents and warrants to Buyer that, except as set forth in
the Disclosure Schedule delivered by Seller to Buyer on the date hereof (the
"Disclosure Schedule") (which Disclosure Schedule sets forth the exceptions to
the representations and warranties contained in this Article 4):
4.1 Incorporation and Corporate Power. Seller is a corporation duly
incorporated, validly existing and in good standing under the laws of Taiwan,
has all requisite corporate
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power and authority under its Article of Association and By-laws to own the
Assets and to sell, transfer and assign them to Buyer and has and shall have
good and marketable title to the Assets at the Closing.
4.2 Execution, Delivery; Valid and Binding Agreement. The execution,
delivery and performance of this Agreement by Seller and the consummation of the
transactions contemplated hereby have been duly and validly authorized by the
board of directors of Seller, and by the chargors referred to in Section 2.2(a).
No other proceedings on the part of the Seller are necessary to authorize the
execution, delivery and performance of this Agreement. This Agreement has been
duly executed and delivered by Seller and, assuming that this Agreement is the
valid and binding agreement of Buyer, constitutes the valid and binding
obligation of Seller, enforceable in accordance with its terms, except as such
enforcement may be limited by applicable bankruptcy, insolvency, reorganization,
moratorium or other laws of general application affecting enforcement of
creditors' rights or by general principles of equity.
4.3 Authority; No Breach. Seller has the requisite corporate power and
authority to execute and deliver this Agreement and to perform its obligations
hereunder. The execution, delivery and performance of this Agreement by Seller
and the consummation of the transactions contemplated hereby do not conflict
with or result in any breach of any of the provisions of, or constitute a
default under, result in a violation of, result in the creation of a right of
termination or acceleration or any lien, security interest, charge or
encumbrance upon any assets of Seller, or require any authorization, consent,
approval, exemption or other action by or notice to any court or other
governmental body, under the provisions of the Articles of Incorporation or
By-laws of Seller or any indenture, mortgage, lease, loan agreement or other
agreement or instrument by which Seller or the Assets are bound or affected
(other than consents required under Section 8.1(c) hereof, which Seller
undertakes to obtain prior to the Commencement of Closing Date), or any law,
statute, rule or regulation or order, judgment or decree to which Seller or the
Assets are subject. No consent, approval or authorization of any governmental or
regulatory authority is required to be obtained by Seller in connection with its
execution, delivery and performance of this Agreement.
4.4 Condition. The Assets being sold to Buyer is in its "As Is" and "Where
Is" conditions, without any express or implied warranties as to the fitness,
function or condition of the Assets.
4.5 Governmental Authorities; Consents. Seller is not required to submit
any notice, report or other filing with any governmental authority in connection
with the execution or delivery by it of this Agreement or the consummation of
the transactions contemplated hereby. No consent, approval or authorization of
any governmental or regulatory authority is required to be obtained by Seller in
connection with its execution, delivery and performance of this Agreement.
4.6 Absence of Undisclosed Liabilities. Save for the charges on the Assets
referred to in Section 2.2(a), which shall be discharged on or before the
Commencement of Closing Date, Seller has no liabilities to any third parties
(whether accrued, absolute, contingent, unliquidated or otherwise, whether due
or to become due, whether known or unknown, and regardless of when asserted) on
the Assets or arising out of this transaction.
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4.7 Assets. Save for charges referred to in Section 2.2(a), Seller owns
good and marketable title to the Assets which are free and clear of all claims,
liens, encumbrances, security interests, equities, charges or restriction on
transfer of any sort.
4.8 Insurance. The Disclosure Schedule lists and briefly describes each
insurance policy maintained by Seller with respect to the Assets and sets out
the date of expiration of each such insurance policy. All of such insurance
policies are in full force and effect and are issued by insurers of recognized
responsibility. Seller is not in default with respect to its obligations under
any of any insurance policies relating to the Assets.
4.9 Preservation of Conditions. Seller shall take all reasonable steps to
preserve the condition of the Assets until Removal. The steps shall include the
provision of air-conditioning with humidity control, operation of fire
protection systems and provision of security. The steps shall not include the
provision of specialist "decommissioning" such as drainage of oils and
lubricants or packing with silica gel or similar desiccant. Seller shall allow
Buyer's agents, shippers, and logistics service providers the unrestricted right
of access within the Premises to the Assets to conduct preservation, security or
such steps as required for the Removal of the Assets.
4.10 Taxes. Seller warrants that there is no information in its possession,
and there is no information Seller could not reasonably have been expected to
have known, which indicates taxes (including value added tax), duty clawbacks or
other amount payable to the Government of Taiwan or its agencies that would
become the liability of Buyer and would exceed ten percent. (10%) of the
Purchase Price.
4.11 Intellectual Property Rights. The Disclosure Schedule describes all
intellectual property rights in connection with the use of the Assets or used
in, developed for use in or necessary to the use of the Assets as now used or
planned to be used. All necessary action to protect the intellectual property
rights set forth under such caption has been taken. No likelihood exists of any
infringement or misappropriation by, or conflict from, any third party with
respect to the intellectual property rights listed in the Disclosure Schedule;
no claim by any third party contesting the validity of any intellectual property
rights listed under such caption has been made, is currently outstanding or is
threatened; no notice of any infringement, misappropriation or violation of any
intellectual property rights of any third parties has been given and no
infringement, misappropriation or otherwise violation of any such intellectual
property rights has occurred; and no infringement, illicit copying,
misappropriation or violation has occurred or will occur with respect to the
Assets.
4.12 Litigation. There are no actions, suits, proceedings, orders or
investigations threatened, pending or instituted before or by any court,
governmental department, commission, board, bureau, or agency, in Taiwan or
elsewhere, directly or indirectly,
(a) Against Seller and/or the associated or subsidiary companies in respect
of the Assets;
(b) Which challenges or seeks to make illegal, or to delay or otherwise
restrict or prohibit, the consummation of the transactions contemplated under
this Agreement; or
(c) Which seeks to obtain damages in connection with the transactions
contemplated under this Agreement.
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Article 5. Representations and Warranties of Buyer
Buyer hereby represents and warrants to Seller that:
5.1 Incorporation and Corporate Power. Buyer is a company duly
incorporated, validly existing and in good standing under the laws of Hong Kong,
with the requisite corporate power and authority to enter into this Agreement
and perform its obligations hereunder.
5.2 Execution, Delivery; Valid and Binding Agreement. The execution,
delivery and performance of this Agreement by Buyer and the consummation of the
transactions contemplated hereby have been duly and validly authorized by all
requisite corporate action, and no other corporate proceedings on its part are
necessary to authorize the execution, delivery or performance of this Agreement.
This Agreement has been duly executed and delivered by Buyer and constitutes the
valid and binding obligation of Buyer, enforceable in accordance with its terms,
except as such enforcement may be limited by applicable bankruptcy, insolvency,
reorganization, moratorium or other laws of general application affecting
enforcement of creditors' rights or by general principles of equity.
Article 6. Covenants of Seller
6.1 Conduct of the Business; Assistance; Insurance. Seller agrees to
observe each term set forth in this Section 6.1 and agrees that, from the date
hereof until Completion of the Closing Date, unless otherwise consented to by
Buyer in writing:
(a) Seller shall not, directly or indirectly, sell, pledge, dispose of
or encumber any of the Assets;
(b) Seller shall procure the bailment of the Assets at the Premises
until Removal of the Assets;
(c) Seller shall assist Buyer and shall procure any necessary
assistance, in the preparation of all necessary documents and applications
to the Investment Commission, Bureau of Foreign Trade and other relevant
authorities in Taiwan for the export of the Assets to Hong Kong or any
other location that Buyer may elect;
(d) Seller shall assist Buyer to contest any payment of taxes
(including value added tax), duty clawbacks or other amount payable to the
Government of Taiwan or its agencies that would become the liability of
Buyer or to prosecute any claims for refund of such taxes (including value
added tax), duty clawbacks or other amounts payable to Buyer;
(e) Seller shall transfer, or procure the transfer of, any licenses,
contracts or agreements to which Seller is a party to Buyer, which contain
warranties with respect to the Assets; and
(f) Seller shall maintain or procure insurance to cover the risk of
fire, theft, explosion, water damage (including from flood or typhoon),
earthquake to the Assets at an insurance coverage and value of one hundred
and fifty percent (150%) of the Purchase Price until title to all Assets is
passed to Buyer pursuant to Section 3A.2.
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6.2 Conditions. Seller shall take all commercially reasonable actions
necessary to cause the conditions set forth in Section 8.1 to be satisfied and
to consummate the transactions contemplated herein as soon as reasonably
possible after the satisfaction thereof.
Article 7. Covenants of Buyer
Buyer covenants and agrees with Seller as follows:
7.1 Packaging Documentation
Buyer shall provide seller with copies of the packaging documentation in
respect of the removal of the assets7.2 Conditions Buyer shall take all
commercially reasonable actions necessary to cause the conditions set forth in
Section 8.2 to be satisfied and to consummate the transactions contemplated
herein as soon as reasonably possible after the satisfaction thereof.
Article 8. Conditions to Closing
8.1 Conditions to Buyer's Obligations The obligation of Buyer to
consummate the transactions contemplated by this Agreement is subject to the
satisfaction of the following conditions on or before the Commencement of
Closing Date:
(a) The representations and warranties set forth in Article 4 hereof
shall be true and correct in all material respects at and as of the Closing
Date as though then made.
(b) Seller shall have performed in all material respects all of the
covenants and agreements required to be performed and complied with by it
under this Agreement prior to the Closing Date.
(c) Seller shall have obtained, or caused to be obtained, each consent
and approval required in order to complete the transactions contemplated
hereby.
(d) The board of directors of Seller shall have approved the
execution, delivery and performance of this Agreement by Seller and the
consummation of the transactions contemplated hereby.
(e) There shall be no actions, suits, proceedings, orders or
investigations threatened, pending or instituted before or by any court,
governmental department, commission, board, bureau, or agency, in Taiwan or
elsewhere, directly or indirectly,
(1) Against Seller and/or the associated or subsidiary companies
in respect of the Assets;
(2) Which challenges or seeks to make illegal, or to delay or
otherwise restrict or prohibit, the consummation of the transactions
contemplated under this Agreement; or
(3) Which seeks to obtain damages in connection with the
transactions contemplated under this Agreement.
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(f) There shall not be any action taken, or any statute, rule,
regulation, judgment, order or injunction enacted, entered, enforced,
promulgated, issued or deemed applicable to the transactions contemplated
hereby by any federal, state or foreign court, government or governmental
authority or agency, in Taiwan or elsewhere, which would reasonably be
expected to result, directly or indirectly, in any of the consequences
referred to in Section 8.1(e) hereof.
(g) Buyer shall not have discovered any fact or circumstance existing
as of the date of this Agreement which has not been disclosed to Buyer as
of the date of this Agreement regarding the Assets, which is, individually
or in the aggregate with other such facts and circumstances, materially
adverse to the value or the Assets, as determined by the Buyer in its
reasonable discretion.
(h) There shall have been no damage, destruction or loss of or to any
of the Assets, save pursuant to Section 3A.1(b), whether or not covered by
insurance, which, in the aggregate, has, or would be reasonably likely to
have, a material adverse effect on the Assets.
(i) On the Commencement of Closing Date, Seller shall have delivered
to Buyer the following:
(1) the ▇▇▇▇ of Sale and such other instruments of conveyance,
transfer, assignment and delivery as Buyer shall have reasonably
requested pursuant to Section 3.2 hereof and in compliance with the
relevant laws of Taiwan;
(2) certificates dated the Commencement of Closing Date, stating
that the conditions set forth in subsections 8.1(a), (b), (c), (d),
(e), (f), (g) and (h) above have been satisfied;
(3) the registration record in respect of the Assets issued by
the HSPA referred to in Section 2.2(a);
(4) written export approvals, if any, issued by the Investment
Commission, Bureau of Foreign Trade, HSPA and other relevant
authorities in Taiwan in respect of the transactions contemplated by
this Agreement;
(5) all manuals for operation, maintenance and calibration of the
Assets whether supplied by the manufacturer or purchased from a third
party including specialist advice and recommendations from consultants
or written by in-house staff which are located at the Premises on the
date of this Agreement;
(6) service records, certificates of calibration issued by
standard agencies in relation to the Assets which are located at the
Premises on the date of this Agreement;
(7) warranty certificates, service records, logs of modifications
and other such documentation that may be associated with the Assets
which are located at the Premises on the date of this Agreement;
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(8) copy of original purchase invoice and original of the
Certificate of Origin or similar paper that may satisfy import and
export documentation requirements for Hong Kong or any other location
that Buyer may elect which are located at the Premises on the date of
this Agreement;
(9) a copy of the text of the resolution adopted by the board of
directors of Seller authorizing the execution, delivery and
performance of this Agreement and the consummation of all the
transactions contemplated by this Agreement, affixed with Seller's
registered corporate and chairman seals and certifying to Buyer that
such copy is true, correct and complete copy of such resolution, and
that such resolution was duly adopted and has not been amended or
rescinded.
8.2 Conditions to Seller's Obligations. The obligations of Seller to
consummate the transactions contemplated by this Agreement are subject to the
satisfaction of the following conditions on or before the Commencement of
Closing Date:
(a) The representations and warranties set forth in Article 5 hereof
shall be true and correct in all material respects at and as of the
Commencement of Closing as though then made;
(b) Buyer shall have performed, and complied with, in all material
respects all the covenants and agreements required to be performed by it
under this Agreement prior to the Commencement of Closing;
(c) On the Commencement of Closing Date, Buyer shall have delivered to
Seller a certificate dated the Closing Date, stating that the conditions
set forth in subsections 8.2(a) and (b) above have been satisfied.
Article 9. Termination
9.1 Termination. This Agreement may be terminated at any time prior to the
Completion of Closing Date:
(a) by the mutual consent of Buyer and Seller;
(b) by either Buyer or Seller if there has been a material
misrepresentation, breach of warranty or breach of covenant on the part of
the other in the representations, warranties and covenants set forth in
this Agreement;
(c) by either Buyer or Seller if the transactions contemplated hereby
have not been consummated by December 31st 2004; provided that, neither
Buyer nor Seller shall be entitled to terminate this Agreement pursuant to
this Section 9.1(c) if such party's willful breach of this Agreement has
prevented the consummation of the transactions contemplated hereby; or
(d) by Buyer if, after the date hereof, there shall have been a
material adverse change in the condition of the Assets or if, after the
date hereof, an event shall have occurred which, so far as reasonably can
be foreseen, would result in any such change, except to the extent such
change is directly caused by Buyer.
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9.2 Effect of Termination. In the event of termination of this Agreement
by either Buyer or Seller as provided in Section 9.1(a), (b), (c) and (d), this
Agreement shall become void and there shall be no liability on the part of
either Buyer or Seller, or their respective stockholders, officers, or
directors, except that Sections 11.1, 11.2, 11.6, 11.7, 11.10 and 11.11 hereof
shall survive indefinitely, and except with respect to willful or negligent
breaches of this Agreement prior to the time of such termination.
Article 10. Survival; Indemnification
10.1 Survival, Indemnification. The covenants, representations and
warranties contained in this Agreement shall survive the Closing. Seller agrees
to indemnify Buyer with respect to, and hold Buyer harmless from, any losses,
liabilities, judgments, fines, claims, damages or expenses (including, but not
limited to, reasonable legal fees) which Buyer may directly or indirectly incur
or suffer by reason of, or which results, arises out of or is based upon (a) the
inaccuracy of any representation or warranty made by Seller in this Agreement,
or (b) the failure of Seller to comply with any covenants or other commitments
made by Seller in this Agreement.
Buyer agrees to indemnify Seller with respect to, and hold Seller harmless
from, any losses, liabilities, judgments, fines, claims, damages or expenses
(including, but not limited to, reasonable legal fees) which Seller may directly
or indirectly incur or suffer by reason of, or which results, arises out of or
is based upon (a) the inaccuracy of any representation or warranty made by Buyer
in this Agreement, or (b) the failure of Buyer to comply with any covenants or
other commitments made by Buyer in this Agreement.
10.2 Legal Proceedings. In the event Buyer or Seller become involved in any
legal, governmental or administrative proceeding which may result in
indemnification claims hereunder, such party shall promptly notify the other
party in writing and in full detail of the filing, and of the nature of such
proceeding. The other party may, at its option and expense, defend any such
proceeding if the proceeding could give rise to an indemnification obligation
hereunder. If the other party elects to defend any proceeding, it shall have
full control over the conduct of such proceeding, although the party being
indemnified shall have the right to retain legal counsel at its own expense and
shall have the right to approve any settlement of any dispute giving rise to
such proceeding, provided that such approval may not be withheld unreasonably by
the party being indemnified. The party being indemnified shall reasonably
cooperate with the indemnifying party in such proceeding.
Article 11. Miscellaneous
11.1 Press Releases and Announcements. Prior to the Closing Date, Buyer and
its holding company shall have the right to issue any press release (or make any
other public announcement) related to this Agreement or the transactions
contemplated hereby. Seller shall, have the right to issue any press release (or
make any other public announcements), that may be necessary to comply with
applicable law or regulations governing disclosure.
11.2 Taxes and Expenses. Except as otherwise expressly provided for herein
and the cost of the agreement with the Escrow Agent which shall be shared
equally by Seller and Buyer, Seller and Buyer shall pay all of their own taxes
and expenses (including legal counsel's and accountants' fees) in connection
with the negotiation of this Agreement, the performance of their respective
obligations hereunder and the consummation of the transactions contemplated by
this Agreement (whether consummated or not).
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11.3 Further Assurances. Buyer and Seller agree that, on and after the
Closing Date, they shall take all appropriate action (without incurring any
out-of-pocket expenses) and execute any documents, instruments or conveyances of
any kind which may be reasonably necessary or advisable to carry out any of the
provisions hereof.
11.4 Amendment and Waiver. This Agreement may not be amended or waived
except in a writing executed by the party against which such amendment or waiver
is sought to be enforced. No course of dealing between or among any persons
having any interest in this Agreement shall be deemed effective to modify or
amend any part of this Agreement or any rights or obligations of any person
under or by reason of this Agreement.
11.5 Notices. All notices, demands and other communications to be given or
delivered under or by reason of the provisions of this Agreement shall be in
writing and shall be deemed to have been given when personally delivered or
three business days after being mailed by registered mail, return receipt
requested, or when receipt is acknowledged, if sent by facsimile, telecopy or
other electronic transmission device. Notices, demands and communications to
Buyer and Seller shall, unless another address is specified in writing, be sent
to the address indicated below
Notices to Buyer:
International DisplayWorks (Hong Kong) Limited
▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇,
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ City
▇▇ ▇▇▇▇▇▇ ▇▇▇▇
▇▇▇▇ ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇▇. ▇▇▇ ▇▇▇▇▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇▇ ▇▇▇▇
With a copy to:
International DisplayWorks, Inc.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇
Stanford Ranch
Atherton Centre
Rocklin
California 95769
United States of America
Attention: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Facsimile number: ▇ (▇▇▇) ▇▇▇ ▇▇▇▇
And with a copy to:
▇▇▇▇▇▇ & Whitney
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June 24, 2004
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Suite 3008, ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇▇▇▇▇
Facsimile number: (▇▇▇) ▇▇▇▇ ▇▇▇▇
Notices to Seller:
Grand Pacific Petrochemical Corporation
Head ▇▇▇▇▇▇
▇▇ ▇▇. ▇▇. ▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇
Republic of China
Attention: ▇▇. ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇
Facsimile number: (▇▇▇) ▇ ▇▇▇▇-▇▇▇▇
With a copy to:
Ting & ▇▇
▇▇▇▇▇▇▇▇▇-▇▇-▇▇▇
▇▇▇▇▇ ▇▇-▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ of China
Attention: ▇▇. ▇▇▇▇▇ ▇.▇. ▇▇▇▇
Facsimile number: (▇▇▇) ▇ ▇▇▇▇-▇▇▇▇
11.6 Assignment. This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties hereto and their respective
successors and permitted assigns, except that neither this Agreement nor any of
the rights, interests or obligations hereunder may be assigned by either party
hereto without the prior written consent of the other party hereto.
Notwithstanding the aforesaid, Seller shall permit Buyer to transfer,
assign or substitute any one or more of its subsidiaries the rights, interests
or obligations hereunder at any time at Buyer's discretion without the need for
prior written consent from Seller and Buyer shall guarantee the performance of
the subsidiary with the respect to the performance of its obligations to the
Seller.
11.7 Severability. Whenever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is held to be prohibited
by or invalid under applicable law, such provision shall be ineffective only to
the extent of such prohibition or invalidity, without invalidating the remainder
of such provision or the remaining provisions of this Agreement.
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11.8 Complete Agreement. This Agreement and the Exhibits hereto, the
Disclosure Schedule and the other documents referred to herein contain the
complete agreement between the parties and supersede any prior understandings,
agreements (including the memorandum of understanding between International
DisplayWorks, Inc and a subsidiary of Seller dated April 12, 2004 and subsequent
extensions or representations by or between the parties, written or oral, which
may have related to the subject matter hereof in any way).
11.9 Counterparts. This Agreement may be executed in one or more
counterparts, any one of which need not contain the signatures of more than one
party, but all such counterparts taken together shall constitute one and the
same instrument.
11.10 Governing Law. The internal law, without regard to conflicts of laws
principles, of the State of California, United States of America shall govern
all questions concerning the construction, validity and interpretation of this
Agreement and the performance of the obligations imposed by this Agreement.
11.11 Dispute Resolution. The parties attorn to the non-exclusive
jurisdiction of the courts of the State of California, United States of America
on all questions concerning the construction validity and interpretation of this
Agreement and the performance of the obligations imposed by this Agreement.
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
INTERNATIONAL DISPLAYWORKS
(HONG KONG) LIMITED
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------
Title: Chairman
--------------------------------
GRAND PACIFIC PETROCHEMICAL CORPORATION
By:
--------------------------------
Name:
--------------------------------
Title:
--------------------------------
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June 24, 2004
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SCHEDULE 1
PART A
[List of Assets to be inserted]
PART B
[List of spare parts to be inserted]
16
June 24, 2004
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SCHEDULE 2
▇▇▇▇ OF SALE
FOR VALUE RECEIVED, GRAND PACIFIC PETROCHEMICAL CORPORATION, a corporation
incorporated under the laws of Taiwan whose registered official office is at ▇▇.
▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇-▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇ ("Seller"), does hereby
sell, assign and transfer to INTERNATIONAL DISPLAY WORKS (HONG KONG) LIMITED, a
company incorporated under the laws of Hong Kong whose registered office is at
▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ City, ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇, Special Administrative Region of Hong Kong ("Hong Kong")
("Buyer"), its successors and permitted assigns all of its right, title and
interest in and to those assets sold, transferred and assigned by Seller (the
"Assets") under Section 1.1 of the Asset Purchase Agreement dated as of June
24th , 2004 between Seller and Buyer ("Agreement").
TO HAVE AND TO HOLD the Assets to and for the use of Buyer and its
successors and permitted assigns forever, free and clear of any chattel
mortgages.
This ▇▇▇▇ of Sale is being delivered subject to the Agreement and neither
expands nor diminishes either party's rights or obligations thereunder.
WITNESS the due execution hereof as of the 24th day of June, 2004.
GRAND PACIFIC PETROCHEMICAL
CORPORATION
By:
----------------------------
Name:
Title:
17