Supplementary Agreement to Asset Purchase Agreement
Exhibit 2.2
Supplementary Agreement to Asset Purchase Agreement
This supplement agreement to the Asset Purchase Agreement (hereinafter referred to “Supplementary Agreement”) is entered into and effective on the date last signed below (the “Effective Date”) by and between:
NeoPhotonics Dongguan Co., Ltd., (“ Neo DG ”) a wholly owned enterprise incorporated under the laws of China with its registered address at Section B of X0, Xxxxxx Xxxx-Xxxx Xxxx, Xxxxx Section of Xxxxx Xxx Road, Shangsha Village, Zhen’an, Xxxxx’Xx Xxxx, Xxxxxxxx Xxxx, Xxxxxxxxx Xxxxxxxx 000000, Xxxxx (each a “Seller” and collectively with Neo China the “Sellers”); and
NeoPhotonics (China) Co. Ltd., (“Neo China”) a wholly foreign owned enterprise incorporated under the laws of China with its registered address at NeoPhotonics Building, 0 Xxxx Xxxxx 00xx Xxxx, Xxxxx Xxxx-Xxxx Xxxxxxxx Xxxx, Xxxxxxxx 000000, China (each a “Seller” and collectively with Neo DG the “Sellers”); and
APAT OptoElectronics Components Ltd., a limited liability company incorporated under the laws of China with its registered address at Room 1503, Unit 2, COFCO Business Garden, Second Liuxian Road, Bao’an Xxxxxxxx, Xxxxxxxx 000000, Xxxxx (the “Purchaser”)
The Sellers and the Purchaser are hereinafter collectively referred as the “Parties” and each individually as a “Party”.
All capitalized terms herein shall have the meaning ascribed to them in the APA.
WHEREAS:
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2. |
Whereas, the Purchaser has already completed Phase One Due Diligence and Phase Two Due Diligence and has not found any Material Deviation of the Seller. |
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3. |
Whereas, the Parties hereto agree and acknowledge that the Pre-Closing Arrangement as prescribed in Section 8.3(d) of the APA with respect to the obligations of the Sellers to procure CMI to enter into a contract with the Purchaser is the only condition that the Sellers have not satisfied yet for Closing and the Purchaser hereby waives the right to require the Sellers to satisfy such Pre-Closing Arrangement prior to Closing. |
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4. |
Whereas，the Parties desire to sign this Supplementary Agreement to confirm the Purchaser will transfer the US$25,000,000 (the “Purchase Price”) to the Seller on January 6, 2017(“Closing Date”) and final transferring price shall be adjusted subject to Section 6.2 of the APA upon agreement by both parties. |
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Whereas，the Parties desire to sign this Supplementary Agreement to confirm the final transferring price subject to the post-closing adjustments based on count of inventories pursuant to the APA. |
NOW, THEREFORE, after friendly negotiation Sellers and Purchaser agree as follows.
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1. |
Subject to the provisions of Section 6.1 of the APA, the Parties hereto agree that the aggregate purchase price of the Purchased PRC Assets, the Purchased Non-PRC Assets and the Assumed Liabilities which shall be paid by the Purchaser to the Sellers is US$25,000,000 (the “Purchase Price”). |
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2. |
The Parties agree that the Purchase Price is constituted by 2 parts: |
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i) |
US$ 19,403,118 is payable by the Purchaser to the account designated by the Sellers in RMB equivalent in a lump sum on January 6, 2017 and shall be paid to Neo Dongguan and Neo China separately as below: |
NeoPhotonics Dongguan Co., Ltd.
Bank Account No.: 7442610182400010941
Beneficiary Bank：CITIC Bank Shenzhen Houhai Sub-branch
Transfer Amount: RMB75,000,000
NeoPhotonics (China) Co., Ltd.
Bank Account No.: 7442610182400001273
Beneficiary Bank：CITIC Bank Shenzhen Houhai Sub-branch
Transfer Amount:RMB59,467,246
ii) With respect to the RMB 6,900,000 which has already been put into the Escrow Account according to the Section 12.1(f) in the APA by Neo Dongguan and The Purchaser respectively, Parties agree to such amounts and repossess their funds.
iii) US$5,596,882 is payable by the Purchaser or its non-PRC Affiliate to the bank account in Hong Kong as below of which is Affiliated Company of the Seller and the owner of the Purchased Non-PRC Assets in US dollars as the consideration for transfer of the Purchased Non-PRC Assets.
NEOPHOTONICS CORPORATION
East West Bank, Hong Kong Branch
Beneficiary's Bank A/C No.: 3582023069001
STIFT Code: EWBKHKHH
Beneficiary’s Bank address: Suite 1108, 11/F, Two International Finance Centre
0 Xxxxxxx Xxxxxx, Xxxxxxx, Xxxx Xxxx
As Purchaser intends to get a loan from the Sellers and the aggregate amount of which is US$2,000,000 according to the Section 6.1 in the APA, the Parties will enter into a loan agreement separately with the similar condition as prescribed in the Appendix XIII of the APA and in the meantime the Purchaser shall pay US$ 3,596,882 on January 6, 2017 to the Hong Kong bank account as above mentioned. The Parties agree and acknowledge that payment time is an essential element of the APA and Supplementary Agreement. Therefore, in the event Purchaser fails to make the payment to the Sellers and the Affiliated Company of the Sellers according to Section 2 herein, the Sellers and Purchaser agree to postpone the Closing date to one month later after the signing date hereof.
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3. |
The Parties agree and acknowledge that Purchase Price will be adjusted according to the Section 6.2 as prescribed in the APA after Closing Date. |
4． The Parties agree and acknowledge that the Pre-Closing Arrangement as prescribed in Section 8.3(d) of the APA with respect to the obligations of the Sellers to procure CMI to enter into a contract with the Purchaser is the only condition that the Sellers have not satisfied yet for Closing. The Purchaser hereby waives the right to require the Sellers to satisfy such Pre-Closing Arrangement prior to Closing. The Parties agree and acknowledge that such Pre-Closing Arrangement related to CMI will be completed on or before February 15, 2017.
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The Parties agree and acknowledge that the Pre-Closing Arrangement as prescribed in Section 8.2 of the APA with respect to the obligations of the Purchaser has satisfied. |
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5. |
The Parties agree and acknowledge that a form of product warranty and service agreement as prescribed in Section 9.3 of the APA to be entered into before Closing is no longer necessary as the Parties already set forth the major terms in Section 9.3 of the APA. |
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6. |
Except for any provisions confirmed, modified and supplemented by the Parties as set forth in this Supplementary Agreement, all other terms and conditions in the APA shall survive and remain valid and binding upon both Parties. |
Signature page
In witness thereof, the Parties have signed this Agreement on the date written above.
NeoPhotonics Dongguan Co., Ltd. (chop)
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Legal or authorized representative (signature): |
/s/ Xxxxxx Xxx Xx |
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Xxxxxx Xxx Xx |
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NeoPhotonics (China) Co., Ltd. (chop)
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Legal or authorized representative (signature): |
/s/ Xxxxxx Xxx Xx |
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Xxxxxx Xxx Xx |
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Purchaser: APAT Optoelectronics Components Co., Ltd. (chop)
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Legal or authorized representative (signature): |
/s/ Rengxian Gu |
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Rengxian Gu |
