EXHIBIT A
STOCK PURCHASE AGREEMENT
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THIS STOCK PURCHASE AGREEMENT (this "Agreement"), dated as of June 28,
2007, is by and among SINO-JP FUND CO., LTD., a company incorporated under the
laws of the Cayman Islands ("Seller") whose registered office is located at ▇.▇.
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ Church Street, ▇▇▇▇▇▇ Town, Grand Cayman, Cayman
Islands, SOF INVESTMENTS, L.P., a Delaware limited partnership ("Purchaser")
with offices located at ▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ and MSD
Capital, L.P., a Delaware limited partnership ("Guarantor") with offices located
at ▇▇▇ ▇▇▇▇▇ ▇▇▇., ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇.
WHEREAS, Purchaser desires to purchase from Seller, and Seller desires to
sell to Purchaser, 2,766,154 shares of the issued and outstanding common stock
of Asia Pacific Wire & Cable Corporation Limited, a company incorporated under
the laws of Bermuda ("APWC"), upon the terms and subject to the conditions set
forth herein; and
WHEREAS, Seller requires the guaranty of Guarantor as inducement to enter
into, and perform its obligations under, this Agreement;
NOW, THEREFORE, in consideration of the respective representations,
warranties, covenants and agreements set forth herein, the parties hereto agree
as follows:
Article I.
Certain Definitions
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As used in this Agreement the following terms shall have the following
respective meanings:
Section 1.01 "BALANCE DUE" shall mean USD$11,741,154.50, representing the
Purchase Price of USD$11,756,154.50 less the USD$15,000 previously paid by
Purchaser on behalf of Seller to one of Seller's advisors.
Section 1.02 "EFFECTIVE TIME" shall mean the consummation of Seller's sale,
and Purchaser's purchase, of the Subject Shares, in accordance with Section
2.02.
Section 1.03 "PURCHASE PRICE" shall mean $4.25 per Share in United States
dollars, representing an aggregate purchase price of $11,756,154.50.
Section 1.04 "SHARES" shall mean shares of the issued and outstanding
shares of common stock of APWC, par value $0.01 per share.
Section 1.05 "SHARE TRANSFER DOCUMENTS" shall mean (i) original share
certificate No. AP10, representing 2,766,154 shares of APWC registered in the
name of Seller together with a stock power relating to such certificate duly
executed by Seller, (ii) original share certificate No. AP 2056, representing
10,074,102 shares of APWC registered in the name of Seller, (iii) a stock power
(the "Stock Power") relating to original share certificate No. AP 2056 signed by
Seller and transferring Seller's interest in 2,766,154 Shares of APWC to
Purchaser, on which is affixed with
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a "Z" level medallion signature guarantee by JPMorgan Chase & Co. or an
affiliate thereof; and (iv) a Secretary's Certificate duly executed on behalf of
Seller, certifying to resolutions adopted by the Board of Directors of Seller
authorizing ▇▇. ▇▇▇▇▇▇ Sham to execute and deliver the Stock Power and to take
certain other actions on behalf of Seller.
Section 1.06 "SUBJECT SHARES" shall mean 2,766,154 Shares of APWC to be
sold by Seller to Purchaser pursuant hereto.
Article II.
Purchase and Sale
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Section 2.01 Purchase and Sale. On the basis of the representations,
warranties, covenants and agreements set forth herein, at the Effective Time,
Seller will sell and transfer the Subject Shares to Purchaser and Purchaser will
purchase the Subject Shares from Seller, free and clear of any liens, claims,
charges, security interest or other legal or equitable encumbrances, limitations
or restrictions (collectively, "Liens").
Section 2.02 Closing. The closing shall take at the offices of Purchaser at
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ at 9:00 am local time on the
date of this Agreement. On the basis of the representations, warranties,
covenants and agreements set forth herein, upon execution and delivery of this
Agreement, Purchaser shall instruct ▇▇▇▇▇▇▇ Sachs & Co. or an affiliate thereof
("GS") to effect a wire transfer of immediately available funds in U.S. Dollars
in an amount equal to the Balance Due to such account as may be designated by
Seller in writing (including e-mail). Upon receipt by Purchaser and Seller of an
e-mail confirmation from GS that it has sent such wire transfer (the
"Confirmation"), the Share Transfer Documents shall be deemed to be released to
Purchaser and the Effective Time shall be deemed to have occurred. For the
avoidance of doubt, the release of the Share Transfer Documents shall in no way
affect, impair or relieve Purchaser of its obligation to pay the Balance Due to
Seller and Seller shall be deemed paid hereunder only upon delivery of the
Balance Due to the account designated by Seller pursuant hereto. Notwithstanding
anything contained herein to the contrary, if the Confirmation is not received
by Purchaser and Seller by 5:00 PM (EST) on the date hereof, this Agreement
shall be deemed void ab initio, the Effective Time shall not have been deemed to
occur and no party hereunder shall have any liability to any other party
hereunder for any reason or under any legal theory.
Article III.
Guarantee
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Section 3.01 Guarantor, for value received, does hereby irrevocably, fully
and unconditionally guarantee to Seller the due and punctual payment of the
Balance Due by Purchaser. Guarantor further agrees that the payment of the
Balance Due to Seller pursuant to this guarantee will be made without
withholding or deduction for, or on account of, any taxes, duties, levies, costs
or other charges of any nature whatsoever, and the obligations of Guarantor
hereunder shall not be affected or impaired by any actions or failures to act on
the part of Purchaser, or by the insolvency or any other disability affecting
Purchaser. The foregoing guarantee shall be deemed to be a guarantee of payment
and not of collectibility, and Seller shall not be obligated to provide any
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notice to, or to assert any claims against, Purchaser as a condition to the
assertion of claims against Guarantor pursuant to this Guarantee.
Article IV.
Representations and Warranties of Seller
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Section 4.01 Seller hereby represents and warrants to Purchaser as follows:
(a) Seller is a company duly incorporated, validly existing and in good
standing under the laws of the Cayman Islands and has all requisite corporate
power and authority to own the Subject Shares.
(b) Seller has full corporate power to execute and deliver this Agreement
and to perform its obligations hereunder and to consummate the transactions
contemplated hereby.
(c) The execution and delivery of this Agreement, the performance of
Seller's obligations hereunder and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
corporate proceedings on the part of Seller.
(d) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict or
violate any provision of Seller's charter or by-laws or similar organizational
instrument and do not and will not conflict with or constitute a breach of any
term, default or permit acceleration of maturity under any instrument, agreement
or document to which Seller is a party or by which it is bound, or require any
notice or consent under any law, or regulation, judgment or order of any court
applicable to Seller.
(e) This Agreement has been duly executed and delivered by Seller, and,
assuming the due execution hereof by Purchaser, this Agreement constitutes the
legal, valid and binding obligation of Seller, enforceable against Seller in
accordance with its terms.
(f) Seller is the lawful beneficial owner of the Subject Shares and has
complete and unrestricted right to sell, transfer, assign and convey the Subject
Shares to Purchaser. Upon consummation of the transaction as contemplated by
this Agreement, Seller will deliver to Purchaser good title to the Subject
Shares free and clear of any Liens created by Seller. Assuming Purchaser has the
requisite power and authority to be the lawful owner of such Subject Shares,
upon delivery to Purchaser at the Effective Time of certificates representing
such Subject Shares, Purchaser will acquire all of Seller's right, title and
interest in and to the Subject Shares and will receive good and valid title to
the Subject Shares, free and clear of any and all Liens created by Seller, it
being understood that following the registration of the Subject Shares on the
books and records of Computershare, the registrar and transfer agent of APWC, it
will be necessary for the registration of the Subject Shares to be reflected in
the share register of APWC maintained by ▇▇▇▇ Management Limited, the company
secretary of APWC in Bermuda. Notwithstanding the foregoing, Seller makes no
representations or warranties whatsoever with respect to the authenticity or
validity of Share Certificate No. AP 10 of APWC.
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Article V.
Representations and Warranties of Purchaser and Guarantor
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Section 5.01 Each of Purchaser and Guarantor hereby jointly represents and
warrants to Seller as follows:
(a) Such entity is a limited partnership that is duly organized, validly
existing and in good standing under the laws of the state of Delaware. Such
entity has full power to execute and deliver this Agreement, to perform its
obligations hereunder and to consummate the transactions contemplated hereby.
(b) The execution and delivery of this Agreement, the performance of such
entity's obligations hereunder and the consummation of the transactions
contemplated hereby have been duly and validly authorized by all necessary
proceedings on its part.
(c) The execution, delivery and performance of this Agreement and the
consummation of the transactions contemplated hereby will not conflict or
violate any provision of such entity's organizational documents and do not and
will not conflict with or constitute a breach of any term, default or permit
acceleration of maturity under any instrument, agreement or document to which
such entity is a party or by which it is bound, or require any notice or consent
under any law, or regulation, judgment or order of any court applicable to such
entity.
(d) This Agreement has been duly executed and delivered by such entity,
and, assuming the due execution hereof by Seller, this Agreement constitutes
such entity's legal, valid and binding obligation.
Section 5.02 Purchaser and Guarantor hereby jointly represent and warrant
to Seller that (i) Purchaser is purchasing the Subject Shares for investment and
not with a view to any public resale or other distribution thereof, except in
compliance with applicable securities laws; (ii) Purchaser's financial condition
and investments are such that it is in a position to bear the economic risks of
the investment and withstand the complete loss of the investment; (iii)
Purchaser has extensive knowledge and experience in financial and business
matters and has the capability to evaluate the merits and risks of an investment
in the Subject Shares.
Article VI.
Covenants and Agreements of Seller and Purchaser
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Section 6.01 Further Assurances. Seller and Purchaser agree that, from time
to time, whether at or after the Effective Time, each of them will execute and
deliver such further instruments of conveyance and transfer and take such other
action as may be reasonably required to carry out the purposes and intents of
this Agreement.
Article VII.
Miscellaneous
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Section 7.01 Notices. All notices, requests, demands and other
communications made under or by reason of this Agreement shall be in writing and
shall be given by hand delivery, certified or registered mail, return receipt
requested, facsimile or next day courier to the affected
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party at the address set forth below. Such notices shall be deemed given (a) at
the time personally delivered, if delivered by hand with receipt acknowledged;
(b) at the time received, if sent by certified or registered mail; (c) upon
issuance by the transmitting machine of a confirmation slip that the number of
pages constituting the notice has been transmitted without error, if sent by
facsimile; and (d) the first day after timely delivery to the courier, if sent
by next day courier specifying next day delivery (or, in the case of
international delivery, if sent by the most expedited delivery by means of a
commercial courier service such as FedEx):
if to Purchaser or Guarantor, to:
▇▇▇▇ ▇. ▇▇▇▇▇▇
c/o MSD Capital, L.P.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇
Tel.: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
if to Seller, to:
Sino-JP Fund Co., Ltd.
c/o Sino-JP Asset Management Co. Ltd.
Attention: ▇▇. ▇▇▇▇▇▇ Sham
Room 1108-1109, Bank of America Tower
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇
Tel.: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
with a copy (which shall not constitute notice) to:
▇▇▇▇▇ ▇▇▇▇, Esq.
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇
35th Floor ▇▇▇▇▇▇ Kong Center
▇ ▇▇▇▇▇'▇ ▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇
Tel.: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Fax: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
Section 7.02 Governing Law; Jurisdiction. This Agreement shall be governed
by and construed in accordance with the laws of the State of New York. Each of
the parties hereto hereby irrevocably and unconditionally consents to submit to
the exclusive jurisdiction of the courts of the State of New York and of the
United States of America, in each case located in the County of New York, for
any claim, action, suit, investigation or proceeding ("Litigation") arising out
of or relating to this Agreement and the transactions contemplated hereby (and
agrees not to commence any Litigation relating hereto except in such courts),
and further agrees that service of any process, summons, notice or document by
U.S. registered mail or internationally recognized courier to its
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respective address set forth in this Agreement shall be effective service of
process for any Litigation brought against it in any such court. Each of the
parties hereto hereby irrevocably and unconditionally waives any objection to
the laying of venue of any Litigation arising out of this Agreement or the
transactions contemplated hereby in the courts of the State of New York or the
United States of America, in each case located in the County of New York, and
hereby further irrevocably and unconditionally waives and agrees not to plead or
claim in any such court that any such Litigation brought in any such court has
been brought in an inconvenient forum. THE PARTIES HERETO HEREBY WAIVE ANY RIGHT
THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY ACTION, PROCEEDING OR
LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF, UNDER OR IN CONNECTION WITH
THIS AGREEMENT.
Section 7.03 Successors and Assigns. This Agreement shall be binding upon
and inure to the benefit of the parties hereto and their respective successors
and assigns. Neither this Agreement nor any of the rights, interests or
obligations hereunder shall be assigned by any party hereto (whether by
operation of Law or otherwise) without the prior written consent of the other
party.
Section 7.04 No Third Party Beneficiaries. This Agreement is for the sole
benefit of the parties hereto. Nothing herein express or implied shall give or
be construed to give any person or entity, other than the parties hereto, any
legal or equitable rights hereunder. All references herein to any agreements,
arrangements or understandings with third parties, the existence or
non-existence of third party rights, or similar matters or statements, are not
intended to give rise to any claim or benefit to any third party.
Section 7.05 Counterparts. This Agreement may be executed in one or more
counterparts, all of which shall be considered one and the same agreement, and
shall become effective when one or more counterparts have been signed by each of
the parties and delivered to the other party.
Section 7.06 Severability. Any term or provision of this Agreement which is
invalid or unenforceable in any jurisdiction shall, as to that jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, the provision shall be interpreted
to be only so broad as is enforceable.
Section 7.07 Headings; Definitions. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated. All capitalized terms defined herein are
equally applicable to both the singular and plural forms of such terms.
Section 7.08 Amendments and Waivers. This Agreement may not be modified or
amended except by an instrument or instruments in writing signed by the party
against whom enforcement of any such modification or amendment is sought. Either
party hereto may, only by
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an instrument in writing, waive compliance by the other party hereto with any
term or provision of this Agreement on the part of such party hereto to be
performed or complied with. The waiver by any party hereto of a breach of any
term or provision of this Agreement shall not be construed as a waiver of any
subsequent breach.
Section 7.09 Entire Agreement. This Agreement represents the entire
agreement between the parties with respect to the subject matter hereof and
shall not be modified or affected by any offer, proposal, statement or
representation, oral or written, made by or for any party in connection with the
negotiation of the terms hereof. Should any term, provision or clause hereof, or
of any other agreement or document which is required by this Agreement, be held
to be invalid, such invalidity shall not affect any other provisions or clauses
hereof or thereof which can be given effect without such invalid provision, all
of which shall remain in full force and effect.
******
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IN WITNESS WHEREOF, this Agreement has been signed by or on behalf of each
of the parties as of the day first above written.
SINO-JP FUND CO., LTD.
By: /s/ ▇▇▇▇▇▇ Sham
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Name: ▇▇▇▇▇▇ Sham
Title: Chairman
SOF INVESTMENTS, L.P.
By: MSD Capital, L.P., its General Partner
By: MSD Capital Management LLC, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager and General Counsel
MSD CAPITAL, L.P.
By: MSD Capital Management LLC, its general
partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
------------------
Name: ▇▇▇▇ ▇. ▇▇▇▇▇▇
Title: Manager and General Counsel
