July 8, 2009 Mototech, Inc. No. 9, Park, Avenue II Science-Based Industrial Park Hsin-Chu, Taiwan, R.O.C. Attention: K.Y. Chou, General Manager Dear Mr. Chou:
![](https://www.sec.gov/Archives/edgar/data/1030058/000114420409036845/logo.jpg)
July 8,
2009
Mototech,
Inc.
Xx. 0,
Xxxx, Xxxxxx XX
Xxxxxxx-Xxxxx
Xxxxxxxxxx Xxxx
Xxxx-Xxx,
Taiwan, R.O.C.
Attention:
X.X. Xxxx, General Manager
Dear Xx.
Xxxx:
The
purpose of this letter (the “Letter”) is to set
out certain agreements between Mototech, Inc. (“Mototech”) and
WorldGate Communications, Inc. (“WGAT”, and together
with Mototech, the “Parties”) to settle
all of the WGAT Persons’ payment obligations to the Mototech Persons under the
Current Agreements. Certain capitalized terms used in this
Letter but not defined at first use have the meanings ascribed to them in
paragraph 12 of this Letter.
For good
and valuable consideration, receipt of which is hereby acknowledged, and
intending to be legally bound, the Parties hereby agree as follows:
1. Payments by WGAT to
Mototech.
(a) On
or prior to July 20, 2009, WGAT shall pay to Mototech fifty thousand dollars
($50,000), in cash by wire transfer of immediately available funds to the
account or accounts designated by Mototech in accordance with this
Letter.
(b) On
or prior to August 30, 2009, WGAT shall pay to Mototech one hundred thousand
dollars ($100,000), in cash by wire transfer of immediately available funds to
the account or accounts designated by Mototech in accordance with this
Letter.
(c) On
or prior to September 30, 2009, WGAT shall pay to Mototech one hundred fifty
thousand dollars ($150,000), in cash by wire transfer of immediately available
funds to the account or accounts designated by Mototech in accordance with this
Letter.
(d) On
or prior to October 30, 2009, WGAT shall pay to Mototech three hundred thousand
dollars ($300,000), in cash by wire transfer of immediately available funds to
the account or accounts designated by Mototech in accordance with this
Letter.
July 8, 2009
Page 2
(e) On
or prior to the date seven (7) days after the date of this Letter, WGAT shall
issue to Mototech the Settlement Shares, which shall be subject to the
restrictions contained in paragraph 6 of this Letter.
(f) On
or prior to the date seven (7) days after the date of this Letter, WGAT shall
issue to Mototech an unregistered warrant to purchase 1,000,000 shares of common
stock, par value $0.01, of WGAT, in the form attached as Exhibit B to this
Letter (the “Warrant”).
2. Mototech Wire
Instructions. For purposes of any payments to be made to
Mototech pursuant to this Letter, unless Mototech otherwise notifies WGAT in
writing seven (7) days in advance of any payment due date, all wire transfers to
Mototech of immediately available funds contemplated by this Letter shall be
made to the following account:
Beneficial’s
Bank: First Commercial Bank H.S.I.P. Branch
Beneficial’s
Bank Address: Xx. 000, XXX.0, Xxxxx-Xx Xx., Xxxx Xxx ,Taiwan R.O.C.
XXXXXXXXXXX:
Mototech Inc..
Account
No.: 30340003683
Swift
Code: XXXXXXXXXXX
3. Termination of WGAT
Obligations under the Current Agreements. Immediately upon
execution of this Letter by the Parties, (a) all obligations of the WGAT Persons
to the Mototech Persons under each of the Current Agreements shall be deemed
terminated, void and of no further force and effect, and the WGAT Persons shall
not have any further liabilities or obligations to the Mototech Persons under
the Current Agreements whatsoever and (b) the Mototech Persons shall release the
WGAT Persons from, and shall credit the account of the WGAT Persons with respect
to, all amounts due or owing to the Mototech Persons under the Current
Agreements. Other than as contemplated by the prior sentence, all
rights and obligations of the WGAT Persons and the Mototech Persons under the
Current Agreements shall remain in full force and effect.
4. Representations and
Warranties of the Parties. Each Party represents and warrants
to the other Party that the statements contained in this paragraph 4 of this
Letter are true and correct.
(a) Status. Such
Party is an entity validly existing and in good standing under the laws of the
jurisdiction in which it was formed.
(b) Authorization. Such
Party has the requisite power and authority to execute and deliver this Letter
and to perform the transactions to be performed by it hereunder. Such
execution, delivery and performance shall have been duly authorized by all
necessary action on the part of such Party. This Letter constitutes
the valid and binding obligation of such Party, enforceable against such Party
in accordance with its terms.
July 8, 2009
Page 3
(c) Consents and
Approvals. Neither the execution and delivery by such Party of
this Letter, nor the performance of the transactions performed hereunder by such
Party, will require any filing, consent, renegotiation or approval, or conflict
with, result in any breach of or constitute a default under (i) any provision of
any law, statute, rule or regulation, or any ruling, writ, injunction, order,
judgment or decree of any court order or other governmental authority to which
such Party is subject, (ii) the constituent documents of such Party, or (iii)
any contract, governmental permit or other document to which such Party is
subject.
5. Securities
Representations. Mototech represents and warrants to the WGAT
Persons that the statements contained in this paragraph 5 of this Letter are
true and correct.
(a) Mototech
understands that the Settlement Shares, the Warrant and any shares issued upon
exercise of the Warrant (the “Warrant Shares”) have
not been registered under the Securities Act of 1933, as amended (the “Securities
Act”). Mototech must bear the economic risk of an investment
in the Settlement Shares, the Warrant and the Warrant Shares indefinitely unless
such securities are registered pursuant to the Securities Act or an exemption
from registration is available. Mototech understands that WGAT has no
present intention of registering the Settlement Shares, the Warrant or the
Warrant Shares. Mototech also understands that there is no assurance
that any exemption from registration under the Securities Act will be available
and that, even if available, such exemption may not allow the Mototech to
transfer all or any portion of the Settlement Shares, the Warrant or the Warrant
Shares under the circumstances, in the amounts or at the times the Mototech
might propose. Mototech has been advised of or is aware of the
provisions of Rule 144 promulgated under the Securities Act as in effect from
time to time, which permits limited resale of securities purchased in a private
placement subject to the satisfaction of certain conditions, including, without
limitation, the availability of certain current public information about WGAT,
the resale occurring following the required holding period under Rule 144 and
the number of securities being sold during any three month period not exceeding
specified limitations.
(b) Mototech
has substantial experience in evaluating and investing in private placement
transactions of securities similar to WGAT so that Mototech is capable of
evaluating the merits and risks of its investment in WGAT and has the capacity
to protect its own interests. Mototech understands and agrees that
the Settlement Shares and the Warrant are being offered and will be sold in
transactions in compliance with or exempt from the registration requirements of
the Securities Act based in part upon Mototech’s representations contained in
this Letter and, as a result, that the Settlement Shares, the Warrant and the
Warrant Shares may only be transferred if such securities are registered under
the Securities Act or if the transfer is exempt from registration.
(c) The
Settlement Shares and the Warrant are being acquired for Mototech’s own account
and not with the view to, or for resale in connection with, any distribution
other than resales made in compliance with the Securities
Act. Mototech is an “accredited investor” within the meaning of
Regulation D, Rule 501(a), promulgated by the Securities and Exchange
Commission. Mototech represents that by reason of its or its
management’s business or financial experience, Mototech has the capacity to
protect its own interests in connection with the transactions contemplated in
this Letter. Further, Mototech is aware of no publication of any advertisement
in connection with the transactions contemplated in this
Letter. Mototech acknowledges that its investment in WGAT
is highly speculative and entails a substantial degree of risk and Mototech is
in a position to lose the entire amount of such investment.
July 8, 2009
Page 4
(d) Mototech
acknowledges that it has received any information that it has requested for
Mototech to make an investment decision. Mototech has had an opportunity to
discuss WGAT’s business, management and financial affairs with WGAT and their
respective representatives and has had the opportunity to review WGAT’s
operations and facilities. Mototech has also had the opportunity to
ask questions of and receive answers from WGAT and its management regarding the
terms and conditions of this investment. Except as expressly set
forth in this Letter, Mototech acknowledges and agrees that no WGAT Person has
made any other representation or warranty regarding the operations, business,
prospects or condition (financial or otherwise) of any WGAT Person.
(e) Mototech
has had full opportunity to seek the advice of independent counsel respecting
the transactions contemplated by this Letter and the tax risks and implications
thereof. Mototech maintains its domicile (and is not a transient or
temporary resident) at the address shown in paragraph 11 of Exhibit C to this
Letter. There are no claims for brokerage commission, finders’ fees
or similar compensation in connection with the transactions contemplated by this
Letter or related documents based on any arrangement or agreement binding upon
any Mototech Person.
6. Restrictions on Settlement
Shares.
(a) Mototech
acknowledges and agrees that the Settlement Shares shall not be offered for
sale, sold, transferred, pledged or hypothecated by any Mototech Person prior to
the date that is nine (9) months after the issuance of the Settlement
Shares. When and if Mototech is permitted to offer for sale, sell,
transfer, pledge or hypothecate any WGAT Shares, Mototech acknowledges and
agrees that Mototech will not offer for sale, sell, transfer, pledge or
hypothecate more than 25,000 WGAT Shares in any single day.
(b) Mototech
acknowledges and agrees (i) that neither the Warrant nor any WGAT Shares shall
be offered for sale, sold, transferred, pledged or hypothecated by any Mototech
Person at any time that any Mototech Person is in possession of material
non-public information regarding any WGAT Person and (ii) that the Settlement
Shares, the Warrant and the Warrant Shares may only be offered for sale, sold,
transferred, pledged or hypothecated in accordance with any restrictive legends
applicable to such securities.
(c) Mototech
acknowledges and agrees that the certificates representing the Settlement
Shares, the Warrant and the Warrant Shares shall be issued in the name of
Mototech and, unless Mototech otherwise notifies WGAT in writing seven (7) days
in advance of any delivery date, such certificates shall be delivered to
Mototech at its address provided in this Letter. Mototech
acknowledges and agrees that WGAT shall effect delivery of the Settlement Shares
and the Warrant Shares by delivering to Mototech or its nominee a physical
certificate representing such Settlement Shares or Warrant Shares, as
applicable, and that such certificate representing such Settlement Shares or
Warrant Shares shall contain the following restrictive legend:
July 8, 2009
Page 5
THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN AND WILL NOT BE REGISTERED
UNDER THE SECURITIES ACT OF 1933, AS AMENDED (THE “SECURITIES ACT”), OR ANY
STATE SECURITIES LAW, AND MAY NOT BE OFFERED FOR SALE, SOLD, TRANSFERRED,
PLEDGED OR HYPOTHECATED UNLESS A REGISTRATION STATEMENT UNDER THE SECURITIES ACT
AND APPLICABLE STATE SECURITIES LAWS SHALL BE EFFECTIVE WITH RESPECT THERETO, OR
AN EXEMPTION FROM REGISTRATION UNDER THE SECURITIES ACT AND APPLICABLE STATE
SECURITIES LAWS IS AVAILABLE IN CONNECTION WITH SUCH OFFER, SALE, TRANSFER,
PLEDGE OR HYPOTHECATION AND THE CORPORATION RECEIVES AN OPINION OF COUNSEL (BOTH
SUCH OPINION AND SUCH COUSEL BEING REASONABLY ACCEPTABLE TO THE CORPORATION) TO
SUCH EFFECT.
7. Certification of Review and
Drafting. Each Party certifies that it has read the terms of
this Letter, that it understands the terms of this Letter, and that it is
entering into this Letter of its own volition. Each Party warrants
and represents that it has received independent legal advice from its attorney
regarding its decision with respect to the advisability of making and entering
into this Letter. Each Party and its counsel has reviewed this Letter
and has participated in its drafting and, accordingly, no Party shall attempt to
invoke the normal rule of construction to the effect that ambiguities are to be
resolved against the drafting party in any interpretation of this
Letter.
8. Expenses. Except
as otherwise explicitly provided in this Letter (including the Exhibits), each
of the Parties shall bear all of their own expenses in connection with the
negotiation and closing of this Letter and the transactions contemplated
hereby.
9. Cooperation. Each
Party agrees to execute any and all documents reasonably requested by the other
Party in order to give effect to the agreements concluded or contained in this
Letter (including the Exhibits).
July 8, 2009
Page 6
10. Non-Disclosure,
Confidentiality and Other Provisions. The Parties agree that
the provisions attached to this Letter as Exhibit C are hereby
incorporated by reference and made a part of this Letter.
11. Release.
(a) Mototech,
for itself and for each Mototech Person, hereby forever fully, irrevocably and
unconditionally releases and discharges the WGAT Persons from any and all Claims
which any Mototech Person can, shall or may have against any WGAT Person
(collectively, the “Mototech Released
Claims”), except that the Mototech Released Claims shall not include the
obligations of WGAT under this Letter. Mototech, for itself and for
each Mototech Person, hereby irrevocably agrees to refrain from directly or
indirectly asserting any claim or demand or commencing (or causing to be
commenced) any suit, action, or proceeding of any kind, in any court or before
any tribunal, against any WGAT Person based upon any Mototech Released
Claim. It is understood and agreed by the Parties that the release in
this paragraph 11(a) of this Letter is a general release of the WGAT Persons,
and it is to be construed in the broadest possible manner consistent with
applicable law. Mototech shall take all such actions as will
ensure that each Mototech Person complies with the terms of this
Letter. Mototech will be responsible for any breach of this Letter by
any Mototech Person.
(b) Mototech
represents and warrants that the Mototech Persons are the exclusive owners of
the WGAT Released Claims and that, as of the date of its full execution of this
Letter, none of the Mototech Persons have assigned, sold, transferred or
otherwise conveyed those claims to any other persons or
entities. Mototech represents and warrants that, as of the date of
their execution of this Letter, none of the Mototech Persons have filed with any
court, tribunal or alternative dispute resolution organization any claim,
demand, action, joinder or cause of action against any WGAT
Person. If this warranty and representation should later be found to
be untrue, then, in addition to any other relief or damages to which any WGAT
Person may be entitled, Mototech shall, at no cost or expense to any WGAT
Person, immediately file all documents and take all action necessary to have the
claim, action or cause of action dismissed or discontinued with
prejudice.
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12.
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Definitions. For
purposes of this Letter,
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(a) “Claims” mean actions,
suits, claims, demands, debts, dues, complaints, sums of money, accounts,
reckonings, bonds, bills, specialities, covenants, contracts (whether oral or
written, express or implied from any source), agreements, warranties,
controversies, promises, judgments, extents, executions, variances, trespasses,
liabilities or obligations of any kind whatsoever, in law or equity, and causes
of action of every kind and nature, or otherwise (including, without limitation,
claims for damages, costs, expenses, and attorneys’, brokers’ and accountants’
fees and expenses) arising out of or related, directly or indirectly, to events,
facts, conditions or circumstances existing or arising from the beginning of the
world, through and until the day of date of this Letter, whether arising in law,
admiralty, or equity or by statute, by regulation, or otherwise, whether known
or unknown, suspected or unsuspected, unanticipated as well as anticipated,
groundless or otherwise, and that now exist or may hereafter accrue based on
matters now unknown as well as known, including, without limitation, any and all
claims and demands under, related to, arising from, or in any way connected with
any payment obligations of the WGAT Persons under the Current
Agreements.
July 8, 2009
Page 7
(b) “Current Agreements”
mean all agreements, contracts, licenses, leases, commitments, arrangements or
understandings, written or oral, including, without limitation, any sales orders
or purchase orders, to which any WGAT Person and any Mototech Person is a party,
dated prior to the date of this Letter, including, without limitation, the
agreements listed on Exhibit A of this
Letter.
(c) “Mototech Persons”
mean, collectively, jointly and severally, Mototech and its Related
Persons.
(d) “Related Persons”
means, collectively, jointly and severally, a Party’s predecessors, successors,
affiliates, subsidiaries (direct and indirect), successors-in-interest,
executors, heirs, administrators, receivers, trustees, assigns, assignees and
its and their insurers, officers, directors, members (direct and indirect),
partners (direct and indirect), owners, past and present shareholders, past and
present stockholders, direct or indirect subsidiaries, employees, agents,
attorneys, lenders (and agents related thereto), financial and other advisors,
accountants, consultants and/or representatives.
(e) “Settlement Shares”
means 3,200,000 unregistered WGAT Shares.
(f) “WGAT Persons” mean,
collectively, jointly and severally, WGAT and its Related Persons.
(g) “WGAT Shares” means
shares of common stock, par value $0.01, of WGAT.
[Signature Page
Follows]
Please
indicate your agreement to the terms of this Letter by executing the enclosed
copy of this Letter. This Letter will be null and void if it has not
been executed by Mototech and returned to WGAT before 5:00 p.m., New York time,
on July 9, 2009.
WorldGate
Communications, Inc.
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By:
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/s/
Xxxxxxxxxxx X.
Xxxxxx
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Name:
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Xxxxxxxxxxx
X. Xxxxxx
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Title:
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Senior
Vice President, Legal and
Regulatory,
General Counsel and
Secretary
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Acknowledged
and agreed to as of
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this
8th day of July, 2009:
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Mototech,
Inc.
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By:
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/s/ X.X. Xxxx |
Name:
X.X. Xxxx
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Title:
General Manager
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EXHIBIT A OF
LETTER
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1.
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Reseller
Agreement, dated as of March 6, 2006, between Ojo Service, LLC and
Mototech, Inc.
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2.
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Ojo
Service Affiliation Agreement, dated November 24, 2005, between WorldGate
Service, Inc. and Mototech, Inc.
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3.
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Manufacturing
Services Agreement, dated as of July 28, 2004, between WorldGate Service,
Inc. and Mototech, Inc.
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4.
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Manufacturing
Agreement, dated September 11, 2003, between WorldGate Communications,
Inc. and Mototech, Inc.
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5.
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Non-Disclosure
Agreement, dated April 9, 2003, between WorldGate Communications, Inc. and
Mototech, Inc.
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EXHIBIT B OF
LETTER
[Form of
Warrant]
EXHIBIT C OF
LETTER
1. Definitions. For
purposes of this Letter, “Confidential
Information” means (i) any and all information concerning either Party or
its Related Persons which has been or is, in the future, furnished by such Party
(the “Provider”) or any of
its Related Persons to the other Party (the “Recipient”) or any of
its Related Persons, orally or in writing (whatever the form or storage medium),
including, without limitation, information concerning its Related Persons,
businesses, operations, markets, products, product specifications, designs,
documentation, technical data, trade secrets, processes, computer programs (in
object or source code form), know-how, research and development, financial
condition, results of operations, projections, strategies, marketing
information, contracts, customers, employees and prospects, and (ii) any and all
notes, analyses, compilations, studies or other documents prepared by the
Recipient or any of its Related Persons containing or reflecting any
Confidential Information described in clause (i). The term “Confidential
Information” does not include information which the Recipient demonstrates: (A)
was or becomes generally available to or known by the public (other than as a
result of a disclosure directly or indirectly by the Recipient or any of its
Related Persons who received such information pursuant hereto); or (B) was or
becomes available to the Recipient or any of its Related Persons on a
non-confidential basis, prior to its disclosure to the Recipient by the Provider
or its Related Persons; provided that the source of
such information is not otherwise known by the Recipient after reasonable
investigation to be bound by a confidentiality agreement with the Provider or
any of its Related Persons, or to be under a contractual, legal, fiduciary or
other obligation to the Provider or any of its Related Persons not to transmit
the information to the Recipient.
2. Use of Confidential
Information.
(a) Any
Confidential Information provided to the Recipient hereunder will be used by
such Party and its Related Persons solely for the purpose of performing
their responsibilities under this Letter and to provide service and support to
the WGAT Persons as requested and shall not be used by such Party for any other
purpose, including, without limitation, use in any way detrimental to the other
Party. The Recipient shall maintain the strict confidentiality of any
Confidential Information provided to it or any of its Related Persons by
the other Party or any of its Related Persons and shall not disclose any
part of it to any other person; provided that (i) it may disclose any such
Confidential Information or portions thereof to its Related Persons subject
at all times to paragraph 3 of this Exhibit C, and (ii) it may disclose any such
Confidential Information in accordance with paragraph 4 of this Exhibit
C. The Recipient shall treat the Confidential Information with the
same degree of care as it would its own, but in no event with less than
reasonable care.
(b) The
Provider shall retain the entire right, interest and title to its Confidential
Information. No license under any patent, copyright, trademark, other
intellectual property right or any application therefor, is hereby granted or
implied by the provision of Confidential Information to the
Recipient. The Recipient shall not alter or obliterate any trademark
or any other proprietary xxxx or notice thereof of the Provider on any copy of
the Confidential Information, and shall reproduce any such xxxx or notice on all
copies of the Confidential Information. In the event product samples
are furnished hereunder, such samples shall only be use as reasonably required
in accordance with this Letter, and the Recipient shall not de-compile,
disassemble or otherwise attempt to reverse engineer the samples.
3. Related Persons. Each
Party may disclose Confidential Information to those of its Related
Persons who have a reasonable need to know such information in order to
assist the Recipient in performing their responsibilities under this Letter;
provided that, prior to any such disclosure, (a) the Recipient informs any such
Related Person of the terms of this Letter and (b) such Related
Person agrees to preserve the confidentiality of the Confidential
Information. Each Party shall take all such actions as will ensure
that its Related Persons comply with the terms of this Letter. Each Party will
be responsible for any breach of this Letter by any of its Related
Persons.
4. Subpoenas,
etc. If the Recipient or any of its Related Persons becomes
required by law or applicable legal process to disclose any Confidential
Information furnished by the Provider, the Recipient shall provide the Provider
with prompt prior written notice of such requirement and the terms of and
circumstances surrounding such requirement so that such Provider may seek an
appropriate protective order or other remedy, or waive compliance with the terms
of this Letter, and the Recipient shall provide such cooperation with respect to
obtaining a protective order or other remedy as the Provider shall reasonably
request. If, in the absence of protective order or other remedy or
the receipt of a waiver by Provider, the Recipient or any of its Related Persons
are nonetheless, in the written opinion of its counsel, reasonably acceptable to
the Provider, legally compelled to disclose Confidential Information to any
tribunal or else stand liable for contempt or suffer other censure or penalty,
the Recipient or its Related Persons may, without liability hereunder, disclose
to such tribunal only that portion of the Confidential Information which such
counsel advises the Recipient is legally required to be disclosed; provided that, the Recipient
exercises its best efforts to obtain an appropriate protective order or other
reasonable assurance that confidential treatment will be accorded such
Confidential Information by such tribunal.
5. Effect of Termination on
Confidential Information. At the request of either Party, the
Recipient shall immediately (a) cease using the Confidential Information, (b)
return to the Provider any Confidential Information furnished by the Provider or
any of its Related Persons and (c) destroy any and all copies of such
Confidential Information and any and all notes, analyses, compilations, studies
or other documents prepared by the Recipient or any of its Related Persons
containing or reflecting any Confidential Information. Any
destruction required pursuant to this paragraph 5 of this Exhibit C shall, upon
request of the Provider, be certified in writing to the Provider by an
authorized officer supervising such destruction. Notwithstanding the
return or destruction of the Confidential Information, each Party and its
Related Persons will continue to be bound by its obligations of confidentiality
and other obligations hereunder.
6. Non-Disclosure. Without
the prior written consent of the other Party, each Party will not, and will
cause its Related Persons not to, disclose to any person (a) that any Party has
requested or received Confidential Information from the other Party or (b) the
terms, conditions or other facts concerning this Letter or the rights and
obligations of the Parties under this Letter, including, without limitation, the
status thereof; provided that, either Party
may make such disclosure if required by law, accounting rule or the rules of any
securities exchange or market. The term “person” as used in this Letter shall be
broadly interpreted to include, without limitation, the media and any
corporation, partnership, group, individual or other entity.
7. Accuracy of
Materials. Neither Party makes any representation or warranty, express or
implied, as to the accuracy or completeness of the Confidential Information
provided or to be provided by it or any of its Related Persons. No
Party nor any of its Related Persons will have any liability to the other Party
or any other person resulting from any action taken or any inaction occurring in
reliance on any Confidential Information provided by the other Party or any of
its Related Persons or the contents thereof.
8. Remedies. Each Party
agrees to indemnify and hold the other Party and its stockholders harmless from
any damages, loss, liabilities, diminution in value of property, costs and
expenses (including, without limitation, attorney fees and expenses) arising out
of any breach of this Letter by such Party or its Related
Persons. Each Party acknowledges that money damages are an
inadequate remedy for breach of the confidentiality and nonsolicitation
provisions of this Letter because of the difficulty of ascertaining the amount
of damage that will be suffered in the event that this Letter is
breached. Therefore, each Party shall be entitled to equitable
relief, including, without limitation, an injunction and specific performance,
in the event of any breach of the confidentiality and nonsolicitation provisions
of this Letter by the other Party or any of its Related Persons, in addition to
all other remedies available to such Party at law or in equity.
9. Nonsolicitation. In
consideration of Confidential Information being furnished to Mototech by WGAT,
Mototech hereby agrees that, from the date of the Letter until two years after
the date of termination of all agreements to which any WGAT Person and any
Mototech Person is a party, without obtaining the prior written consent of WGAT,
Mototech will not, nor will any of its Related Persons, employ or solicit for
employment any employee of any WGAT Person, or induce any employee of any WGAT
Person to terminate such employee’s employment with such WGAT Person; provided that, advertisements
by way of newspapers, magazines, trade publications, internet or general media
or non-directed executive search shall not constitute a violation of this
provision.
10. Compliance with
Law. Recipient agrees that it will not indirectly (a) export
any technical Confidential Information acquired under this Letter or any
commodities using such Confidential Information to any country to which the
United States government forbids export or, at the time of export, requires an
export license or approval, without first obtaining such license or approval, or
(b) use any such Confidential Information to engage in or facilitate the trading
of any securities, in either case, in violation of any prevailing laws and
regulations in any applicable jurisdiction. Each Party acknowledges
that such Party and its Related Persons are aware (i) that the United States
securities laws prohibit any person who has material non-public information
about a company from purchasing or selling securities of such company, or from
communicating such information to any other person under circumstances, which it
is reasonably foreseeable that such person is likely to purchase or sell such
securities, and (ii) that each of WGAT and the Accton Group (the parent company
of Mototech) is a publicly traded company and that some of the information
received by Recipient and its Related Persons may be material non-public
information that would prohibit such Recipient and its Related Persons (A) from
entering into transactions with respect to the securities of WGAT or the Accton
Group, as applicable, until such material non-public information is fully
disseminated in the public domain and (B) from communicating such information to
any other person under circumstances in which it is reasonably foreseeable that
such person is likely to purchase or sell such securities
11. Notices. Notices
given pursuant to this Letter shall be in writing and shall be deemed to have
been duly given on the date established by the sender as having been delivered
personally, upon confirmation of receipt if sent by facsimile, on the date
delivered by a private courier as established by the sender by evidence obtained
from the courier, or on the third day after the date mailed, if mailed by
certified or registered mail, return receipt requested, postage prepaid, to the
Party being notified at its address or facsimile number set forth below or such
other address as the addressee may subsequently notify the other Party of in
writing:
If
to Mototech:
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Xx.0,
Xxxx, Xxxxxx XX
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Xxxxxxx-Xxxxx
Xxxxxxxxxx Xxxx
|
||
Xxxx-Xxx,
Taiwan, R.O.C.
|
||
Attention: General
Manager
|
||
Facsimile:
00886-3-577-0978
|
||
If
to WGAT:
|
|
|
0000
Xxxxxxx Xxxxxx
|
||
Xxxxxxx,
Xxxxxxxxxxxx 00000
|
||
Attn:
General Counsel
|
||
Facsimile:
000-000-0000
|
12. Miscellaneous.
(a) No
failure or delay by any Party in exercising any right, power or privilege
hereunder will operate as a waiver thereof, nor will any single or partial
exercise thereof preclude any other or further exercise thereof or the exercise
of any other right, power or privilege hereunder. Each representation
or warranty of the Parties shall survive the closing of the transactions
contemplated by this Letter.
(b) This
Letter embodies the entire agreement and understanding of the Parties with
respect to the subject matter hereof and supersedes all prior discussions,
negotiations, agreements and understandings among the Parties with respect to
the subject matter hereof. This Letter may be amended, and any
provisions hereof may be waived, only by a writing signed by the
Parties.
(c) This
Letter shall be governed by and construed in accordance with the laws of the
Commonwealth of Pennsylvania, without giving effect to any choice of law or
conflicts of laws provisions or rule of any jurisdiction that would cause the
substantive laws of any other jurisdiction to apply. Mototech hereby irrevocably
and unconditionally consents to submit to the exclusive jurisdiction of the
courts of either the Court of Common Pleas of Bucks County, Pennsylvania or of
the United States of America located in the Eastern District of Pennsylvania for
any actions, suits or proceedings arising out of or relating to this Letter.
Mototech hereby irrevocably and unconditionally waives any objection to the
laying of venue of any action, suit or proceeding arising out of this Letter, in
the courts of either the Court of Common Pleas of Bucks County, Pennsylvania or
of the United States of America located in the Eastern District of Pennsylvania
and hereby further irrevocably and unconditionally waives and agrees not to
plead or claim in any such court that any such action, suit or proceeding
brought in any such court has been brought in an inconvenient
forum.
(d) Neither
Party may assign this Letter or any of its rights hereunder without the written
consent of the other Party. This Letter shall be binding upon and
inure to the benefit of the Parties and their respective successors and
assigns.
(e) If
any portion or provision of this Letter shall to any extent be declared illegal
or unenforceable by a court of competent jurisdiction, then the remainder of
this Letter, or the application of such portion or provision in circumstances
other than those as to which it is so declared illegal or unenforceable, shall
not be affected thereby, and each portion and provision of this Letter shall be
valid and enforceable to the fullest extent permitted by applicable
law.
(f) This
Letter may be executed in multiple counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the same
instrument. This Letter, any and all agreements and instruments
executed and delivered in accordance herewith, along with any amendments hereto
or thereto, to the extent signed and delivered by means of E-mail, a facsimile
machine or other means of electronic transmission, shall be treated in all
manner and respects and for all purposes as an original signature, agreement or
instrument and shall be considered to have the same binding legal effect as if
it were the original signed version thereof delivered in person.
[End of Exhibit
C]