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Execution Copy
EXHIBIT 10.23
ADDENDUM TO
STOCK PURCHASE AGREEMENT
(QOI)
This ADDENDUM is made as of this 16th day of June, 2000 by and among
MRV Communications, Inc., a corporation organized and existing under the
laws of Delaware, U.S.A. with its principal executive office located at
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇.▇.▇. ("MRV"), and
Quantum Optech Inc., a corporation organized and existing under the laws of
the Republic of China ("QOI"), with its principal executive office located
at ▇▇. ▇▇-▇ ▇▇▇▇ ▇▇, ▇▇▇ ▇▇▇ ▇▇., ▇▇▇ ▇▇▇ City, Hsinchu Hsine, Taiwan, ROC.
Each person listed in the schedule of QOI shareholders attached to the
Stock Purchase Agreement as Schedule 1 (individually, a "Signing
Shareholder" and collectively the "Signing Shareholders"), represented by
their attorney-in-fact, Mr. Keh-▇▇▇▇▇ ▇▇▇ ("Attorney-in-Fact").
MRV, QOI and the Signing Shareholders are referred to herein individually
as the "Party" and collectively as the "Parties".
in reference to that certain Stock Purchase Agreement entered into amongst QOI,
the Signing Shareholders and MRV on April 26, 2000 (the "Stock Purchase
Agreement").
WHEREAS, the shareholders' meeting of MRV has approved a 2 for 1 stock split of
MRV shares which has become effective on May 26, 2000, and the Parties desire to
facilitate the conclusion of the Closing;
WHEREAS, pursuant to Article 13.10 and Article 13.19 of the Stock Purchase
Agreement, the Parties desire to modify and amend Article 7.17 and Article
10.2.2 and add Article 8.1.12, Article 13.20 and Article 13.21 to the Stock
Purchase Agreement;
NOW THEREFORE, in consideration of the mutual agreement herein contained, the
Parties hereby agree to amend and modify said Articles to the Stock Purchase
Agreement to be as follows:
7.17 QOI and the Selling Shareholders shall cause ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇ and other
employees of QOI to assign and transfer, at no charge, title to all patents
and other Intellectual Property rights (including, but not limited to, all
registrations and applications for such patents and other Intellectual
Property Rights registered or applied to the Intellectual Property Office
of the Republic of China) set forth in Schedule 25 hereto to QOI, within
twenty (20) days of execution of this Agreement. QOI and the Selling
Shareholders shall further cause ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇ and other employees of
QOI to assign and transfer at no charge all future registrations and
applications for other Intellectual Property rights to QOI and other party
designated by MRV with respect to all operations of DWDM (Dense
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Wavelength Division Multiplexer) and OLPF (Optical Low Pass Filter)
business, which are the inventions or designs developed or conceived by ▇▇.
▇▇▇▇-▇▇▇▇ ▇▇▇▇ and/or other employees of QOI as of the Closing and in the
course of performing their duties at QOI. QOI shall bear the expenses in
connection with the registration of the transfer of the above Intellectual
Property rights. ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇ agrees to provide QOI and other party
designated by MRV at reasonable charge but no more than USD750 per day with
any technical assistance required by MRV or QOI for the use and application
of the Intellectual Property rights as described above currently possessed
by QOI or subsequently assigned and transferred to QOI and other party
designated by MRV. MRV has the option to offer MRV shares to ▇▇. ▇▇▇▇-▇▇▇▇
▇▇▇▇ in lieu of the said charge for any technical assistance so provided.
To the extent that the Intellectual Property rights related to DWDM and
OLPF are owned and/or controlled by ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇ within two (2) years
from the date of the Closing, ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇ agrees to license the
Intellectual Property rights to QOI or other party designated by MRV
without charge and without limitation of period.
8.1.12 QOI and Selling Shareholders confirm that QOI's sales volume of OLPF in
the year 1999 represents 18% and DWDM represents 0% of the total sales
volume in Taiwan, falling below the 25% threshold set by the FTC. QOI
and Selling Shareholders further confirm that as a result thereof the
FTC approval stipulated in Article 8.1.11 is not required.
10.2.2 In the event that QOI or any of the Selling Shareholders breaches any of
their covenants in Sections 7 and 9 above or any of its representations
and warranties in Section 5 above or any other obligations set forth in
this Agreement other than those contained in Sections 5.1.1, 5.1.2 and
13.18 for which the relevant Party shall be responsible, and, if there
is an applicable survival period pursuant to Section 10.1 above,
provided that MRV makes a written claim for indemnification against the
Selling Shareholders and/or QOI, then the Selling Shareholders (or, in
the case of Sections 5.1.1, 5.1.2 and 13.18, the relevant responsible
Party only), and QOI agree to jointly and severally indemnify MRV from
and against the entirety of any Adverse Consequences MRV may suffer
through and after the date of the claim for indemnification (including
any Adverse Consequences MRV may suffer after the end of any applicable
survival period) resulting from, arising out of, relating to, in the
nature of, or caused by the breach. The Parties further agree that MRV
shall first look to the Escrowed Shares to satisfy any indemnity claim.
The Parties agree that the maximum indemnification of liabilities of
each Selling Shareholder shall be capped at the value of MRV Shares each
Selling Shareholders received, determined by the closing price for MRV
Shares on the date SEC registration of the shares (as referred to in
Section 9.5) becomes effective; provided, however, that in no event
shall the value per share for the purpose of determining the cap Thirty
Five
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United States Dollars (US$35) per share, nor shall the value for said
purpose fall below Twenty-Nine United States Dollars (US$29) per share.
13.20 The Parties agree that in light of the recent 2 for 1 stock split of MRV
common shares, the number of the MRV Shares issued, delivered and sold
to the Selling Shareholders under the Stock Purchase Agreement shall be
two times that as described in the Stock Purchase Agreement and the
purchase price of the MRV Shares shall be changed to USD 35 per share.
13.21 Concurrent with the signing of this Addendum, QOI and the Selling
Shareholders will provide MRV with a list of Principal Employees as
agreed by MRV whose involvement is required for the purposes of
operating the DWDM and OLPF machines and business respectively, together
with the Letters of Consent as signed by the Principal Employees
pursuant to Article 13.18.2 of the Stock Purchase Agreement as attached
to this Addendum. It is acknowledged and agreed that ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇
is hereby removed from the list of the Principal Employees and is not
considered a Principal Employee.
13.22 The parties recognize that MRV may designate its subsidiary Luminent
Inc. to purchase the QOI shares.
▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇ confirms that Mr. Keh-▇▇▇▇▇ ▇▇▇ retains full and irrevocable
power and authority to act on behalf of QOI and the Selling Shareholders when
dealing with matters relating to the Share Purchase Agreement and Escrow and
Stock Pledge Agreement. ▇▇. ▇▇▇▇-▇▇▇▇ ▇▇▇▇ further agrees that concurrent with
the signing of this Agreement he will execute on behalf of QOI all the necessary
documents and agreements (including without limitation to Deed of Assignment) to
assign and sell the DWDM machine (involving Leybold and Pan Ocean corporations)
and one set of Precision Optical machine to the party designated by MRV. ▇▇.
▇▇▇▇-▇▇▇▇ ▇▇▇▇ agrees that he will continue to cooperate with and render all
assistance (out-of-pocket expenses will be borne by QOI) to MRV relating to such
DWDM operations without charge.
The above being the entire amendment made to the Stock Purchase Agreement agreed
to between the Parties under this Amendment. The remainder of the Stock Purchase
Agreement which has not been modified or amended hereof shall remain unchanged
and in full force unless further amended in writing by the Parties. The Parties
further agree that this Amendment sets forth the entire understanding of the
Parties and supersedes all prior agreements, arrangements, understanding or
communication in whatever forms relating to the subject matter hereof.
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IN WITNESS WHEREOF, the Parties have caused this Addendum to be executed as of
the day and year first above written.
MRV QOI
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇ By: /s/ Wang-▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Name: Wang-▇▇▇▇ ▇▇▇▇
Title: C.F.O. Title: Chairman
SIGNING SHAREHOLDERS
By: /s/ Keh-▇▇▇▇▇ ▇▇▇ By: /s/ Keh-▇▇▇▇▇ ▇▇▇
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Name: Keh-▇▇▇▇▇ ▇▇▇ Name: Keh-▇▇▇▇▇ ▇▇▇
Title: Deputy Chairman
WANG-▇▇▇▇ ▇▇▇▇
By: /s/ Wang-▇▇▇▇ ▇▇▇▇
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Name: Wang-▇▇▇▇ ▇▇▇▇
