EXHIBIT 2.13
AGREEMENT RE GUANGZHOU JOINT VENTURE
This Agreement ("Agreement") is entered into as of the 13th day of August, 1999,
by and between Xxxxxx Advanced Technology (Malaysia) Sdn. Bhd., a corporation
existing under the laws of Malaysia, with a principal place of business at Xx.
00 Xxxxxx Xxxxxxx, Xxx Xxxxxx Free Trade Xxxx, 00000 Xxxxx Xxxxxx, Xxxxxxxx
("HAT"), and Xxxxxx Airport Systems (M) Sdn. Bhd., a corporation existing under
the laws of Malaysia, with its principal place of business at Xx. 00 Xxxxxx
Xxxxxxx, Xxx Xxxxxx, Free Trade Xxxx, 00000 Xxxxx Xxxxxx, Xxxxxxxx ("HAS").
RECITALS
A. HAT is the owner of a 41% equity interest in Guangzhou Xxxxxx
Telecommunications Company Ltd., a Sino-foreign equity joint venture under the
laws of the People's Republic of China, with its registered office at 181 Xin
Gang Road, West Guangzhou, Guangdong Province, People's Republic of China (such
company, "Guangzhou Xxxxxx," and such equity interest, the "Guangzhou Equity
Interest").
B. HAT and HAS are, directly or indirectly, wholly-owned subsidiaries of
Xxxxxx Corporation ("Xxxxxx"), and Xxxxxx desires to reorganize certain of its
operations, including the ownership of the Guangzhou Equity Interest.
C. HAT and HAS have entered into an Equity Purchase Agreement dated July 5,
1999 (the "Purchase Agreement"), pursuant to which HAT has agreed to sell the
Guangzhou Equity Interest to HAS.
D. HAS desires to transfer to HAT the economic benefits and obligations of
the Guangzhou Equity Interest as provided herein.
NOW, THEREFORE, for and in consideration of the covenants, terms, and
conditions set forth herein, the parties agree as follows:
1. Assignment of Net Proceeds.
HAT hereby transfers to HAS the right to any Net Proceeds realized by HAT
from the ownership of the Guangzhou Equity Interest or from the sale, rental or
other disposition to a third-party not affiliated with Xxxxxx of the Guangzhou
Equity Interest or any of the assets of Guangzhou Xxxxxx. No such sale shall
take place without the consent of HAS. HAT agrees to promptly transfer to HAS
any such Net Proceeds. For purposes of this Agreement, Net Proceeds shall mean
the proceeds arising from such ownership or from any such sale, rental or other
disposition net of all expenses and other liabilities associated with such
ownership, sale, rental or other disposition and net of all taxes, of whatever
type, including taxes imposed by the People's Republic of China and by the
Republic of Malaysia, in connection with such ownership, sale, rental or other
disposition and in connection with the distribution of any proceeds arising from
such ownership or from any such sale, rental or other disposition to Xxxxxx
Malaysia and the further distribution to HAS.
2. Consideration.
a. HAS shall pay HAT the amount of Malaysian Ringgit 15,000,000 as
compensation for the transfer of the rights set forth herein, including the
right to Net Proceeds as provided in Section 1 and the rights set forth in
Section 4. Such payment shall be made concurrently with the execution of this
Agreement.
b. The Malaysian Ringgit 15,000,000 payment made by HAS to HAT pursuant to
Section 2.b. shall be considered a prepayment of and shall be credited against
the obligation to HAT under Article 2 of the Purchase Agreement.
3. Taxes.
HAS shall pay any and all stamp taxes, value added taxes, or other taxes,
if any, required to be paid on the transfer and assignment of the beneficial
ownership interests in and to the Guangzhou Equity Interest, other than income
taxes, if any, contemplated by this transaction, whether such taxes are levied
in Malaysia, the People's Republic of China or the United States of America.
4. Authority of HAS.
HAT hereby agrees to take such action with respect to its ownership of the
Guangzhou Equity Interest as HAS, in its sole discretion, shall direct,
including, without limitation, action with respect to the sale of the Guangzhou
Equity Interest, the selection or removal of officers, directors, or managers of
Guangzhou Xxxxxx, the acquisition, disposition or rental of any assets of
Guangzhou Xxxxxx, and any vote by HAT as the owner of the Guangzhou Equity
Interest. If requested by HAS, HAT agrees to cause the existing officers,
directors and managers of Guangzhou Xxxxxx which have been selected by HAT to
resign and to replace them with persons selected by HAS. HAT agrees not to take
any action with respect to its ownership of the Guangzhou Equity Interest except
as directed by HAS. To the extent permitted by applicable law, HAT hereby
appoints HAS as HAT's exclusive agent for purposes of exercising HAT's rights in
the Guangzhou Equity Interest and with respect to selling the Guangzhou Equity
Interest or liquidating Guangzhou Xxxxxx, as HAS shall, in its sole discretion,
determine. HAT shall cause Guangzhou Xxxxxx, to the extent HAT is able to do so,
to appoint HAS as Guangzhou Xxxxxx' exclusive agent for purposes of selling or
renting the assets of Guangzhou Xxxxxx to third parties.
5. Indemnification.
HAS agrees to pay, and to indemnify, defend and hold harmless, HAT, and any
direct or indirect owner of HAT, from all costs, losses, liabilities, claims and
expenses (excluding any loss of investment value in Guangzhou Xxxxxx) related
to, or in any way resulting from, (i) the ownership or transfer by HAT of the
Guangzhou Equity Interest, or (ii) the ownership or operation or transfer by
Guangzhou Xxxxxx of its assets, including any taxes incurred by HAT in
connection with such ownership, and any contributions or payments HAT, or any
direct or indirect owner of HAT, is legally obligated to make in connection with
such ownership, provided that any taxes or other expenses or liabilities arising
as a result of the sale of Guangzhou Xxxxxx or any assets thereof, or the
distribution of funds from Guangzhou Xxxxxx as a result of liquidation or
otherwise, shall be paid, in the first instance, from such proceeds or
distributions.
6. Limitation of Liabilities.
IN NO EVENT SHALL ANY PARTY TO THIS AGREEMENT BE LIABLE TO ANY OTHER PARTY,
OR TO ANY PARTY CLAIMING UNDER ANY OF THE PARTIES TO THIS AGREEMENT, WHETHER AS
A RESULT OF BREACH OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE OR
OTHERWISE), FAILURE OF A REMEDY TO ACCOMPLISH ITS PURPOSE OR OTHERWISE, FOR
SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES.
7. Remedies.
Any disputes between the parties to this Agreement shall not be submitted
to any judicial, arbitral, governmental or semi-governmental body, but shall be
decided in accordance with the provisions of Section 6 of Exhibit B of the
Master Transaction Agreement dated June 2, 1999, among Intersil Corporation,
Intersil Holding Corporation and Xxxxxx.
8. Governing Law.
This Agreement shall be construed in accordance with the laws of Malaysia.
9. Headings.
The headings in this Agreement are for convenience only and shall have no
effect on the interpretation hereof.
10. Counterparts.
This Agreement may be executed in several counterparts, each of which shall
be an original, but all of which shall constitute one instrument.
11. Entire Agreement.
The terms and conditions herein shall contain and constitute the entire
agreement between the parties, and shall supersede all previous communications,
either oral or written, between the parties with respect to the subject matter
hereof, and no agreement or understanding, varying or modifying the same, shall
be binding upon any other party unless in writing and signed by a duly
authorized officer or representative of each party.
IN WITNESS WHEREOF the parties have hereto set their hand as of the date
first above written.
Xxxxxx Airport Systems Xxxxxx Advanced Technology
(M) Sdn. Bhd. (Malaysia) Sdn. Bhd.
by: /s/ Xxxxxxx X. Xxxxxxxxxx by: /s/ Xxxxx X. Xxxx
--------------------------- -------------------
Name: Xxxxxxx X. Xxxxxxxxxx Name: Xxxxx X. Xxxx
Title: Director Title: Director
