Execution Copy
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SHARE PURCHASE AGREEMENT
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BY AND BETWEEN
LUMINENT, INC.
AND
THE INDIVIDUALS LISTED ON EXHIBIT A
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TABLE OF CONTENT
PAGE
1. DEFINITIONS........................................................................... 1
2. SALE AND PURCHASE OF THE SHARES....................................................... 2
2.1 SALES OF SHARES................................................................... 2
2.2 PURCHASE PRICE AND PAYMENT........................................................ 3
2.3 TRANSFER OF CREDIT................................................................ 3
2.4 TRANSFER TAX...................................................................... 4
3. ESCROW ARRANGEMENTS................................................................... 4
4. CLOSING............................................................................... 4
4.1 DELIVERIES PRIOR TO THE CLOSING................................................... 4
4.2 DELIVERIES AT THE CLOSING......................................................... 5
4.3 MUTUAL RELEASE.................................................................... 5
4.4 LONGSTOP DATE..................................................................... 5
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER.......................................... 5
5.1 POWER, AUTHORITY AND OWNERSHIP.................................................... 5
5.2 NO CONFLICT....................................................................... 6
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS........................... 6
6.1 POWER AND AUTHORITY............................................................... 6
6.2 NO CONFLICT....................................................................... 6
6.3 DUE DILIGENCE..................................................................... 6
6.4 EMPLOYEE OPTIONS.................................................................. 6
7. CONDITIONS PRECEDENT TO CLOSING....................................................... 7
7.1 CONDITIONS TO OBLIGATIONS OF THE PURCHASERS....................................... 7
7.2 CONDITIONS TO OBLIGATIONS OF THE SELLER........................................... 8
8. TAG-ALONG RIGHT....................................................................... 8
9. GENERAL............................................................................... 9
9.1 BROKERAGE......................................................................... 9
9.2 ASSIGNMENT........................................................................ 9
9.3 NOTICES........................................................................... 9
9.4 COSTS............................................................................. 10
9.5 SEVERABILITY...................................................................... 10
9.6 COUNTERPARTS...................................................................... 10
9.7 HEADINGS.......................................................................... 10
9.8 GOVERNING LAW..................................................................... 10
9.9 DISPUTE RESOLUTION................................................................ 11
9.10 ENTIRE AGREEMENT AND AMENDMENTS................................................... 11
EXHIBIT A................................................................................. 1
EXHIBIT B................................................................................. 1
ARTICLE 1 APPOINTMENT OF ESCROW AGENT................................................. 1
ARTICLE 2 ESCROW ACCOUNT.............................................................. 2
ARTICLE 3 DELIVERY TO ESCROW AGENT.................................................... 2
3.1 Delivery by the Seller.......................................................... 2
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3.2 Delivery by the Purchasers...................................................... 3
ARTICLE 4 RELEASE OF ESCROWED PROPERTY................................................ 3
ARTICLE 5 GENERAL PROVISIONS.......................................................... 3
ANNEX A................................................................................. 9
ANNEX B................................................................................. 10
EXHIBIT C................................................................................. 1
EXHIBIT D................................................................................. 1
EXHIBIT E................................................................................. 1
ARTICLE 1 PROVISION OF INFORMATION.................................................... 1
ARTICLE 2 USE OF DOCUMENTS AND INFORMATION............................................ 1
ARTICLE 3 CONFIDENTIALITY............................................................. 1
ARTICLE 4 PERMITTED DISCLOSURE........................................................ 2
ARTICLE 5 PUBLIC ANNOUNCEMENTS........................................................ 2
ARTICLE 6 RETURN OF INFORMATION....................................................... 3
ARTICLE 7 MISCELLANEOUS PROVISIONS.................................................... 3
ANNEX A................................................................................. 7
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SHARE PURCHASE AGREEMENT
THIS SHARE PURCHASE AGREEMENT (this "Agreement"), is made and entered into on
September 30, 2002, by and amongst:
(1) Luminent, Inc., a corporation organized and existing under the laws of
the State of Delaware, the United States of America, with its registered
office located at 0000 Xxxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000, New Castle County, Delaware, the United States of America
("Seller"); and
(2) The individuals listed in Exhibit A hereof (each a "Purchaser",
collectively the "Purchasers").
The Seller and the Purchasers are hereinafter collectively referred to as
"Parties".
W I T N E S S E T H:
WHEREAS, the Seller is the registered holder and beneficial owner of
67,022,010 shares of common stock in FOCI Fiber Optic Communications, Inc.
("FOCI"), representing approximately 97.155% of the total issued and outstanding
share capital of FOCI.
WHEREAS, the Seller is the registered holder and beneficial owner of
18,999,815 hares of common stock in Quantum Optech Inc. ("QOI"), representing
approximately 99.9% of the total issued and outstanding share capital of QOI.
WHEREAS, the Purchasers wish to purchase from Seller, and Seller wishes
to sell to Purchasers, Shares (as defined herein) on the terms and subject to
the conditions of this Agreement.
WHEREAS, unless otherwise stated in this Agreement, all references to
time shall be referred to US time.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and conditions set forth herein, the Parties agree as follows:
1. DEFINITIONS
For purposes of this Agreement, the following terms shall have the following
meanings:
"Applicable Law" shall include all laws, ordinances,
rules, regulations, administrative or
judicial orders, injunctions, notices,
approvals or judgment of any federal,
national, state, provincial or local
government or governmental department,
agency or instrumentality.
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"Closing" shall have the meaning set out in Section 4.
"Closing Date" shall have the meaning set out in Section 4.
"Contract" shall mean any agreement, contract,
obligation, promise, or understanding
(whether written or oral and whether express
or implied) that is legally binding on
either of the Parties.
"Escrow Account" shall have the meaning set out in Section 3.
"Escrow Agent" shall have the meaning set out in Section 3.
"Escrow Agreement" shall mean the Escrow Agreement attached
hereto in Exhibit B.
"Loss" shall mean any liability, loss, damage,
claim, cost, deficiency, obligation, or
expense (including any penalty and any
reasonable legal fees and costs) incurred by
a party.
"MRV" shall mean MRV Communications, Inc.
"New Taiwan Dollars" or "NT$" shall mean the lawful currency of the ROC.
"Purchase Price" shall be as defined in Section 2.2 hereof.
"ROC" shall mean Taiwan, the Republic of China.
"Shares" shall have the meaning set out in Section 2.1.
"United States Dollars" or "US$" shall mean the lawful currency of the United
States of America.
2. SALE AND PURCHASE OF THE SHARES
2.1 SALES OF SHARES
Upon the terms and subject to the conditions hereinafter set forth, the
Seller hereby agrees to sell, transfer, assign and deliver to the Purchasers at
the Closing (as defined below), and the Purchasers hereby agree to purchase and
acquire from the Seller and pay therefor at the Closing, the following number of
shares of common stock in FOCI and QOI, respectively, each with a par value of
Ten New Taiwan Dollars (NT$10) per share
(a). FOCI: 53,570,000 shares of common stock, representing
approximately 77.655 % of the total issued and outstanding share
capital of FOCI (collectively "FOCI Shares"); and
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(b). QOI: 18,999,815 shares of common stock, representing
approximately 99.99 % of the total issued and outstanding share
capital of QOI (collectively "QOI Shares")
The FOCI Shares and the QOI Shares are hereinafter collectively referred
to as the "Shares". The number of Shares to be transferred to the Purchasers on
the Closing Date shall be as set forth in Exhibit C hereof.
2.2 PURCHASE PRICE AND PAYMENT
The Purchasers hereby agree to pay to the Seller the total amount of
US$8,000,000 (Eight Million United States Dollars) as consideration for the
Shares ("Purchase Price"), and the Purchase Price shall be deposited in the
Escrow Account on or prior to September 30, 2002.
2.3 TRANSFER OF CREDIT
FOCI, the Seller and MRV agree that the aggregate amount of all
inter-company loans and net accounts payables previously extended to FOCI by the
Seller and/or MRV as of September 30, 2002 shall be US$7,100,000 (Seven Million
and Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars) ("Total Credit Amount"). As part
of the sale and purchase of Shares and subject to the Closing of the
transactions contemplated herein, the Seller and the Purchasers agree to deal
with the Total Credit Amount in the manner set forth below:
(a) On the Closing Date Seller will assign to the Purchasers the
right to collect the credit amount of US$5,100,000 (Five Million
and Xxx Xxxxxxx Xxxxxxxx Xxxxxx Xxxxxx Dollars) ("Transferred
Credit Amount") out of the Total Credit Amount ("Credit
Transfer"). Upon execution of this Agreement, the Seller and the
Purchasers will execute a transfer notice substantially in the
form attached hereto as Exhibit D ("Credit Transfer Notice") for
the purposes of the transfer of the Transferred Credit Amount
hereunder. The Credit Transfer Notice will be delivered to FOCI
on the Closing Date thereby giving FOIC notice of the Credit
Transfer and the Credit Transfer shall become effective and be
binding on the Seller, the Purchasers and FOCI upon receipt of
the aforesaid Credit Transfer Notice by FOCI on the Closing
Date.
(b) The US$2,000,000 (Two Million United States Dollars) which
remains outstanding and due and payable to the Seller and/or MRV
after the Credit Transfer ("Remaining Credit Amount") will be
repaid in lieu of cash by FOCI by delivery to the Seller, MRV or
any of MRV's subsidiaries ("Transaction Parties") products of
FOCI then currently in production or being marketed by FOCI.
HOWEVER, the Parties agree that, provided that FOCI offers and
agrees to deliver products to the Transaction Parties on terms
most favorable to the Transaction Parties and at least not less
favorable to the terms then offered by FOCI to its customers,
the Transaction Parties will treat such products produced by
FOCI as their first source supplier. Should any of the
Transaction Parties place order for FOCI's aforesaid products in
accordance with the above ("Products"), the amount payable by
the Transaction Parties for the Products shall be set off
against the Remaining Credit Amount upon delivery of the
Products to such Transaction Parties in accordance with the
relevant purchase
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order(s). If at any time FOCI is unable or unwilling to provide
and deliver the Products in accordance with the relevant
purchase order(s), the balance of Remaining Credit Amount which
remains outstanding and unutilized by the Transaction Parties
("Balance") shall become due and payable to the Seller or any
third party designated by the Seller. The Balance shall be paid
in full within 60 days of the Seller's notice demanding payment
therefor, and the Balance shall be jointly and severally
guaranteed by FOCI, Lin Song-Fure (Xxxxx), Xxxx Xxxx Hsien
(Xxxxxxx) and Hou Janpu.
(c) Provided that the Remaining Credit Amount is setoff or paid in
full in accordance with paragraph (b) above, the Parties agree
that the Total Credit Amount represents all open balances
between FOCI and the Seller, MRV or any of MRV's other
subsidiaries as of September 30, 2002 ("Open Balances") and
neither FOCI, QOI, the Seller, MRV, nor any of MRV's other
subsidiaries shall have any claims against each other or any of
them for any Open Balances.
2.4 TRANSFER TAX
Any and all taxes which are payable under the Applicable Law with
respect to the purchase and sale of the Shares ("Transfer Tax"), including
without limitation the securities transaction tax payable under the ROC law,
shall be borne by the Purchasers and shall be timely paid to the competent tax
authority(ies).
3. ESCROW ARRANGEMENTS
The Purchasers and the Seller have appointed Xxxxx Xxxx of Xxxxx &
XxXxxxxx, Attorneys-at-Law, Taipei as escrow agent ("Escrow Agent") pursuant to
the Escrow Agreement for the purposes of (i) establishing a trust account
("Escrow Account") to hold the Purchase Price, (ii) holding and delivering the
certificates representing the Shares ("Certificates") and the accompanying share
transfer forms ("Transfer Forms"), and (iii) holding and delivering the Credit
Transfer Notice at the Closing. The Escrow Agent shall have the sole authority
to access the Escrow Account and shall manage the Purchase Price, the
Certificates, the Transfer Forms, and the Credit Transfer Notice (collectively
"Escrowed Property") in accordance with the Escrow Agreement.
4. CLOSING
The consummation of the sale and purchase of the Shares hereunder
("Closing") shall take place at the offices of Xxxxx & XxXxxxxx, Attorneys at
Law, at 15/F., 000 Xxx Xxx X. Xxxx, Xxxxxx 000, Xxxxxx, on the date when all the
conditions precedent to Closing stated in Section 7 have been duly satisfied or
waived ("Closing Date"), all in accordance with the terms of this Agreement and
the Escrow Agreement. The Seller and the Purchasers will execute a closing
memorandum to document and serve as evidence of the Closing.
4.1 DELIVERIES PRIOR TO THE CLOSING
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The Seller shall deliver to the Escrow Agent, on or before September 30,
2002, the Certificates, the Transfer Forms and the Credit Transfer Notice; and
the Purchasers shall wire the full amount of the Purchase Price to the Escrow
Account in accordance with Section 2.2(b) hereof.
4.2 DELIVERIES AT THE CLOSING
On the Closing Date and upon notice from both the Seller and the
Purchasers, the Escrow Agent shall instruct the Seller to endorse the
Certificates and Transfer Forms for transfer of the Shares to the Purchasers.
Upon completion of such endorsement of the Certificates and the Transfer Forms,
the Escrow Agent shall disburse the Purchase Price to the Seller, and
simultaneous therewith the Escrow Agent shall deliver the Credit Transfer Notice
and the duly endorsed Certificates and Transfer Forms to the Purchasers.
4.3 MUTUAL RELEASE
Except as provided in Section 2.3 hereof, immediately after the Closing
Date, each of the Purchasers, FOCI, QOI, the Seller, MRV or any of MRV's other
subsidiaries shall forever release the other party or parties, including any of
its past and present officers, directors, employees, agents or affiliates, from
any and all claims, actions, causes of action, suits, demands, damages,
attorneys' fees, liabilities, indemnities, costs and obligations of any kind and
character, whether direct or indirect, known or unknown, suspected or
unsuspected in law or in equity or otherwise which it has asserted or could have
asserted against any of them and which have arisen prior to the Closing Date
("Claims"). Each of the Purchasers, FOCI, QOI, the Seller, MRV or any of MRV's
other subsidiaries expressly waives any provision of the law of any jurisdiction
that might form the basis of an argument that the Claims have not been released.
4.4 LONGSTOP DATE
The Closing shall take place no later than October 15, 2002 ("Longstop
Date"), unless otherwise extended by the Seller in its sole discretion. In the
event that the Closing does not take place on or before the Longstop Date, as
may be extended, this Agreement will be terminated with immediate effect with
mutual consent of the Parties. In the event that this Agreement is terminated in
accordance herewith, the Escrow Agent shall return the Purchase Price to the
Purchasers, and the Certificates, the Transfer Forms and the Credit Transfer
Notice to the Seller.
5. REPRESENTATIONS AND WARRANTIES OF THE SELLER
As of the date hereof and again as of the Closing Date, the Seller
hereby represents and warrants to the Purchasers as follows:
5.1 POWER, AUTHORITY AND OWNERSHIP
The Seller has the absolute and unrestricted right, power and authority
to execute and deliver this Agreement and to perform its obligations hereunder
with respect to the Shares. This Agreement has been duly executed and delivered
by the Seller and, assuming the due
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authorization, execution and delivery by the Purchasers, constitutes the legal,
valid and binding obligation of the Seller enforceable against the Sellers in
accordance with its terms. The Seller has good title to the Shares and owns the
Shares of record and beneficially, free and clear of any liens, claims,
encumbrances or restrictions.
5.2 NO CONFLICT
Neither the entering into nor the delivery of this Agreement nor the
performance of the transactions contemplated therein by the Seller will result
in the violation of any of the provisions of the Articles of Incorporation, or
other constitutional or formation documents of the Seller or any Contract to
which the Seller is a party, or any Applicable Law or permits.
6. REPRESENTATIONS, WARRANTIES AND COVENANTS OF THE PURCHASERS
As of the date hereof and as of the Closing Date, each of the Purchasers
represents and warrants to the Seller as follows:
6.1 POWER AND AUTHORITY
Each of the Purchasers has sufficient power and authority to execute and
deliver this Agreement and to perform its obligations hereunder. This Agreement
has been duly authorized, executed, and delivered by the Purchasers and,
assuming the due authorization, execution and delivery hereof by the Seller,
constitutes the legal, valid and binding obligation of each of the Purchasers
enforceable against each of them in accordance with its terms.
6.2 NO CONFLICT
Neither the entering into nor the delivery of this Agreement nor the
performance of the transactions contemplated hereby by each of the Purchasers
will result in the violation of or default under any agreement or other
instrument to which any of the Purchasers is a party or by which any of the
Purchasers is bound, or any Applicable Law.
6.3 DUE DILIGENCE
The Purchasers have conducted due diligence exercises on FOCI and QOI
respectively, and each of them is satisfied with the results of their due
diligence exercise. The Purchasers agree and acknowledge that they have formed
their decision to purchase the Shares on the basis of the said due diligence
exercises and that the Seller has not made any representations or warranties to
any of them in relation to any aspects of the operations of either FOCI or QOI
(financial, operational, technical or otherwise).
6.4 EMPLOYEE OPTIONS
The Seller and MRV will terminate, on or about the Closing Date, any and
all options previously granted to the employees of QOI and FOCI which remain
outstanding as of the Closing Date ("Option Termination"). Each of the
Purchasers agrees to cooperate fully with the Seller and MRV in their dealings
with the Option Termination and to use their best efforts to
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carry out any instructions of the Seller and MRV in connection therewith. Each
of the Purchasers acknowledges that for purposes of the applicable stock option
plans and individual options previously granted by the Seller and/or MRV to the
employees of QOI and FOCI: (a) effective upon the Closing, the employment by
Seller and/or MRV of each of the optionees who have received options from MRV
and/or Seller will terminate for reasons other than the death or disability of
the respective optionees and that such termination will be for cause within the
meaning any applicable option in that QOI and FOCI will, upon the Closing, cease
to be direct or indirect majority-owned subsidiaries of MRV or Seller; and (b)
as a result of such termination, such options shall expire and become
unexercisable 30 or 90 days following the Closing (the "Option Termination
Date"), depending upon the pertinent provisions of the applicable stock option
agreement dealing with the expiration of the option upon such termination of
optionee's employment by Seller or MRV. Each of the Purchasers agrees to
indemnify and hold harmless Seller or MRV from and against any losses, claims,
damages or liabilities arising from or as a result of any attempt to exercise
any such option previously granted by the Seller and/or MRV to the employees of
QOI and FOCI following the Option Termination Date, and from and against any
losses, claims, damages or liabilities arising from or as a result of the Option
Termination.
7. CONDITIONS PRECEDENT TO CLOSING
7.1 CONDITIONS TO OBLIGATIONS OF THE PURCHASERS
All obligations of the Purchasers hereunder to be performed on the
Closing Date are subject to, and conditioned upon, the fulfillment of each of
the following conditions on or before the Closing Date unless waived in writing
by the Seller in its sole discretion:
(a) The representations and warranties of the Seller as set forth in
this Agreement shall be true, correct and complete on the
Closing Date with the same force and effect as if made at and as
of such date;
(b) The Seller shall have delivered to the Escrow Agent the duly
endorsed Certificates and the Transfer Forms, and the duly
executed Credit Transfer Notice;
(c) The Purchasers shall have received any and all consents,
approvals or authorizations (governmental or otherwise) and make
any declaration or filing with any governmental authority, or
any other person, firm, corporation or other entity in
connection with the execution or delivery of this Agreement or
the consummation of the transactions contemplated hereby;
(d) The Seller shall have performed or complied with all of the
terms, covenants and conditions of this Agreement to be
performed or complied with by the Seller on or prior to the
Closing Date;
(e) The Seller shall have paid in full its share of the Escrow Fee
(as defined in the Escrow Agreement) in accordance with the
Escrow Agreement; and
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(f) The Seller shall have executed the following documents:
i. Escrow Agreement as shown on Exhibit B;
ii. Credit Transfer Notice as shown on Exhibit D; and
iii. Confidentiality Agreement as shown on Exhibit E.
7.2 CONDITIONS TO OBLIGATIONS OF THE SELLER
All obligations of the Seller hereunder to be performed on the Closing
Date are subject to, and conditioned upon, the fulfillment of each of the
following conditions on or before the Closing Date unless waived in writing by
the Seller in its sole discretion:
(a) The representations and warranties of the Purchasers as set
forth in this Agreement shall be true, correct and complete at
the Closing Date with the same force and effect as if made at
and as of such date;
(b) The Purchasers shall have remitted the full amount of the
Purchase Price to the Escrow Agent and duly executed the Credit
Transfer Notice delivered to the Escrow Agent;
(c) The Seller shall have received any and all consents, approvals
or authorizations (governmental or otherwise) and make any
declaration or filing with any governmental authority, or any
other person, firm, corporation or other entity in connection
with the execution or delivery of this Agreement or the
consummation of the transactions contemplated hereby;
(d) The Purchasers shall have performed or complied with all of the
terms, covenants and conditions of this Agreement to be
performed or complied with by the Purchasers at or prior to the
Closing Date;
(e) The Purchasers shall have paid in full its share of the Escrow
Fee (as defined in the Escrow Agreement) in accordance with the
Escrow Agreement;
(f) The Purchasers shall have paid in full the Transfer Tax; and
(g) The Purchasers shall have executed the following documents:
i. Escrow Agreement as shown on Exhibit B;
ii. Credit Transfer Notice as shown on Exhibit D; and
iii. Confidentiality Agreement as shown on Exhibit E.
8. TAG-ALONG RIGHT
The Parties agree that the following provisions shall apply to the
Purchasers from the Closing Date:
(a) If, at any time on or after the Closing Date, any of the
Purchasers
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("Participating Purchaser") desires to sell, directly or indirectly, all or part
of its shares in FOCI to any third party or parties ("Proposed Sale") and within
any period of 6 months the number of shares in FOCI to be sold by the
Participating Purchaser (whether in a single transaction or a series of
transactions) shall exceed more than 10% of the total issued and outstanding
share capital of FOCI as of the Closing Date, then the Seller shall have the
right to include in the Proposed Sale all or a number of the shares in FOCI
beneficially owned by the Seller and its affiliates ("Tag-Along Right") in
proportion to the respective shareholding of the Seller (and its affiliates, if
applicable) and the Participating Purchaser in FOCI. This Tag-Along Right is
exercisable by the Seller by delivering a written notice to the Participating
Purchaser within 20 business days after the Participating Purchaser's receipt of
the purchase offer from such third party or parties, irrevocably stating the
number of shares to be sold by the Seller (and its affiliates, if applicable).
The Parties agree to apply the customary terms and conditions of tag-along
rights in good faith.
(b) Paragraph (a) of this Section 8 shall not apply to the Purchasers
for a period of 9 months from the Closing Date ("Free Transfer Period") if
during the Free Transfer Period (i) the Proposed Sale involves a transfer of
shares in FOCI by the Purchasers to other employees of FOCI, or (ii) the
Proposed Sale involves a transfer of shares in FOCI by the Purchasers to their
affiliates; provide, however that paragraph (a) of this Section 8 shall not
apply to Xxx, Xxx Xxx (Rio) with regard to any transfer of shares in FOCI during
the Free Transfer Period from Xxx, Xxx Xxx (Rio) to X. X. Xxxxx or to X. X.
Xxxxx'x designees. For the avoidance of doubt, paragraph (a) above shall
continue to apply to the Purchasers at and from the end of the Free Transfer
Period.
9. GENERAL
9.1 BROKERAGE
The Seller and each of the Purchasers represent and warrant to the other
that they have retained no broker or other person entitled to a commission,
finder's fee or other like payment with respect to the transactions contemplated
herein.
9.2 ASSIGNMENT
The respective rights and obligations of the Purchasers and the Seller
under this Agreement may not be assigned or delegated by the Purchasers or the
Seller without the prior written consent of the other. Nothing herein expressed
or implied shall confer upon any person, other than the Parties or their
respective successors, assigns, heirs and legal representatives, any rights,
remedies, obligations or liabilities under or by reason of this Agreement.
9.3 NOTICES
All notices, reports and other communications among the Parties shall be
in writing and shall be sent by registered air mail, postage prepaid and return
receipt requested, by international air courier, or by facsimile, with a
confirmation copy sent by registered air mail or international air courier
within twenty-four (24) hours after the time and date of facsimile transmission,
addressed as follows:
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If to the Purchasers, to:
Attention: Xxxx, Xxxx Hsien (Xxxxxxx)
Facsimile: 886-3-563-9081
Address: Xx. 00, Xxxxxxxxxx Xx. II,
Science-Based Industrial Park,
Hsinchu, Taiwan, ROC
If to the Seller, to:
Attention: Xxxx Xxxxx, President
Facsimile: 0-000-000-0000
Address: 00000 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
X.X.X.
or to such other address as a party may from time to time
designate by notice to the other.
9.4 COSTS
Unless it is stipulated otherwise in this Agreement or the Escrow
Agreement, the Seller and the Purchasers shall bear their own costs and expenses
incurred in connection with this Agreement, the preparation thereof and the
preparation for the Closing, including professional fees and costs of their
attorneys and accountants; provided that the banking charge will be borne by the
Purchasers.
9.5 SEVERABILITY
In the event any provision of this Agreement is deemed by a court of
competent jurisdiction to be invalid or unenforceable, such determination shall
have no impact on the validity or enforceability of the remaining provisions
hereof, and the unenforceable provision shall be severed as if not originally
included herein.
9.6 COUNTERPARTS
This Agreement may be executed in any number of counterparts, each of
which shall be deemed an original, but all of which together shall constitute
one and the same instrument.
9.7 HEADINGS
The subject headings of this Agreement are included for purposes of
convenience only, and shall not affect the construction or interpretation of any
provision hereof.
9.8 GOVERNING LAW
This Agreement shall be governed by, and interpreted, in accordance with
the substantive law of Taiwan, ROC, excluding its conflicts of law rules.
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9.9 DISPUTE RESOLUTION
The Parties agree to negotiate in good faith to resolve any dispute
between them regarding this Agreement. If the disputes cannot be resolved by
such good faith negotiation, the Parties agree to submit the dispute to the
Arbitration Association of Taiwan, the Republic of China for arbitration. The
arbitration shall be made in Taipei, Taiwan according to the Arbitration Law of
the ROC and the arbitral award rendered thereby shall be final, binding and
enforceable against the Parties involved.
9.10 ENTIRE AGREEMENT AND AMENDMENTS
This Agreement, together with the Exhibits attached hereto and all other
agreements referred to herein, set forth the entire agreement between and among
the Parties relating to the subject matter hereof and supersede all prior
agreements, understandings and communications, whether oral or written. This
Agreement may not be modified, amended or terminated except by written agreement
of the Parties.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized representatives on the day and year first
above written.
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SELLER:
LUMINENT, INC.
By: /s/ XXXX XXXXX Sept 30, 2002
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Name: Xxxx Xxxxx
Title: President
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FOCI FIBER OPTIC COMMUNICATIONS, INC.
PURCHASERS - signed only in relation to Section 2.3
of this Agreement
LIN, SONG-FURE (XXXXX)
/s/ Lin, Song-Xxxx Xxxxx
-------------------------------
Name: Lin, Song-Xxxx Xxxxx
By: /s/ Lin, Song-Fure (Xxxxx) Title: General Manager
-------------------------------
XXX, XXX XXX (RIO)
By: /s/ Xxx, Xxx Xxx
------------------------------
XXXX, XXXX HSIEN (XXXXXXX)
By: /s/ Xxxx, Xxxx Hsien (Xxxxxxx)
------------------------------
HOU, JANPU
By: /s/ Janpu Hou
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EXHIBIT A
LIST OF PURCHASERS
1. Lin, Song-Fure (Xxxxx)
2. Xxxx, Xxxx Hsien (Xxxxxxx)
3. Hou, Janpu
4. Xxx, Xxx Xxx (Rio)
Exhibit A-1
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EXHIBIT B
ESCROW AGREEMENT
This ESCROW AGREEMENT ("Agreement") is entered into as of September 30, 2002 by
and among:
(1) Luminent, Inc., a company organized under the laws of the State of
Delaware, the United States of America, and having its registered office
at 0000 Xxxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx 00000, New
Castle County, Delaware, the United States of America("Seller");
(2) Individuals listed in Annex A attached hereto (each a "Purchaser" and
collectively the "Purchasers"); and
(3) Xxxxx & XxXxxxxx, Attorneys-at-Law, Taipei, as represented by Xx. Xxxxx
Xxxx acting as the escrow agent ("Escrow Agent").
W I T N E S S E T H:
WHEREAS, the Seller and the Purchasers are parties to a Share Purchase
Agreement ("SPA") dated September 30, 2002 and pursuant to the SPA the Seller
has agreed to sell and the Purchasers have agreed to buy certain number of the
issued shares of common stock of FOCI Fiber Optic Communications, Inc. ("FOCI")
and Quantum Optech Inc. ("QOI"), subject to the terms and conditions of the SPA
(collectively "Shares");
WHEREAS, pursuant to the SPA, the Seller and the Purchasers shall enter
into this Agreement with the Escrow Agent for the purposes of consummating the
transactions contemplated under the SPA;
WHEREAS, capitalized terms used herein and not otherwise defined have
the meanings assigned to them in the SPA; and
WHEREAS, pursuant to SPA, the Purchasers and the Seller shall deliver
the Escrowed Property (as defined below) to the Escrow Agent in accordance with
the terms therewith and herewith.
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the Seller, the Purchasers and the Escrow Agent agree as
follows:
ARTICLE 1 APPOINTMENT OF ESCROW AGENT
1.1 The Purchasers and the Seller hereby appoint and designate the Escrow
Agent as escrow agent for the purposes set forth herein and the Escrow
Agent hereby accepts such appointment to act in such capacity and to
perform in accordance with this Agreement.
Exhibit B-1
Execution Copy
1.2 The Escrow Agent agrees to discharge its responsibilities and perform
its tasks as prescribed in and in accordance with this Agreement in a
diligent manner. The scope of the Escrow Agent's responsibilities shall
be as expressly set forth in this Agreement.
1.3 The Escrow Agent covenants that at all times during the term of this
Agreement the Escrowed Property will be segregated from its other
assets.
1.4 The Escrow Agent will hold the Escrowed Property for distribution to the
Seller and the Purchasers in accordance with the procedures set forth in
this Agreement.
1.5 The Seller and the Purchasers agree that an escrow fee in the amount of
US$33,000 ("Escrow Fee") is payable to the Escrow Agent under this
Agreement, and that fifty percent (50%) of the Escrow Fee will be paid
by the Seller to the Escrow Agent whilst the remaining fifty percent
(50%) will be paid by the Purchasers. The Escrow Fee will not be
refundable in any event. For the avoidance of doubt, the Escrow Fee only
covers the services of taking custody of the Escrowed Property from the
date of this Agreement until the Closing Date. In the event that the
Closing does not take place in accordance with the SPA, the Seller and
the Purchasers shall nevertheless pay the Escrow Fee to the Escrow Agent
in accordance with this Article 1.5.
1.6 This Agreement shall terminate upon termination of the SPA and the
Escrow Agent shall be promptly notified by both the Seller and the
Purchasers in writing of the termination of the SPA. In the event of
termination of this Agreement, the Escrow Agent shall return the
Purchase Price to the Purchasers, and the Certificates, the Transfer
Forms and the Credit Transfer Notice to the Seller.
ARTICLE 2 ESCROW ACCOUNT
The Seller agrees to open a bank account with the Taiwan Branch of Bank of
America, N.A. ("Escrow Account") to be managed by the Escrow Agent in accordance
with this Agreement.
ARTICLE 3 DELIVERY TO ESCROW AGENT
3.1 DELIVERY BY THE SELLER
3.1.1 The Seller shall, on or prior to September 30, 0000 , xxxxx the
Certificates, the Transfer Forms, and the Credit Transfer Notice
in escrow with the Escrow Agent.
3.1.2 Upon receipt of the Certificates, Transfer Forms and the Credit
Transfer Notice from the Seller, the Escrow Agent shall promptly
examine the Certificates and the Transfer Forms and inform the
Seller and the Purchasers of the number of the Certificates and
Transfer Forms it receives and whether the Certificates and the
Transfer Forms are valid.
Exhibit B-2
Execution Copy
3.2 DELIVERY BY THE PURCHASERS
3.2.1 The Purchasers shall, on or prior to September 30, 2002, deposit
in the Escrow Account the full amount of the Purchase Price in
immediately available funds.
3.2.2 Upon receipt of the Purchase Price from the Purchasers, the
Escrow Agent shall promptly inform the Seller and the Purchasers
of the total amount of money deposited in the Escrow Account.
ARTICLE 4 RELEASE OF ESCROWED PROPERTY
4.1 On the Closing Date and upon receipt of a joint notice in a form
substantially similar to that attached in Annex B hereof and issued by
the Purchasers and the Seller instructing the Escrow Agent to release
the Purchase Price to the Seller and the Certificates, the Transfer
Forms and the Credit Transfer Notice to the Purchasers, the Escrow Agent
shall immediately instruct the Seller to endorse the Certificates and
the Transfer Forms for transfer of the Shares to the Purchasers.
4.2 As soon as the endorsement of the Certificates and the Transfer Forms
has been duly completed, the Escrow Agent will release the Certificates
together with the Transfer Forms as well as the Credit Transfer Notice
to the Purchasers.
4.3 Simultaneously with the release of the Certificates, the Transfer Forms
and the Credit Transfer Notice to the Purchasers, the Escrow Agent shall
immediately wire the Purchase Price deposited in the Escrow Account to a
bank account designated in writing to the Escrow Agent by the Seller.
ARTICLE 5 GENERAL PROVISIONS
5.1 The terms and conditions set forth in this Agreement shall constitute
both an agreement among the Seller, the Purchasers, and the Escrow Agent
in respect of the subject matter hereof and the escrow instructions for
the Escrow Agent. The SPA is incorporated into, and made a part of, this
Agreement by reference.
5.2 No amendment, change or modification of this Agreement shall be valid
unless in writing and signed by the Seller and the Purchasers, and
received by the Escrow Agent before the Escrowed Property is released to
the parties as provided herein.
5.3 The Escrow Agent's liability as an escrow agent shall be confined to the
obligations specifically provided for in this Agreement.
5.4 The Seller and the Purchasers agree, jointly and severally, to indemnify
and hold the Escrow Agent harmless from and against all costs, damages,
judgments, attorney's fees, expenses, obligations and liabilities of
every kind and nature suffered or incurred in connection with, or
arising out of this Agreement.
Exhibit B-3
Execution Copy
5.5 This Agreement shall become effective upon the date hereof and shall
remain in full force and effect unless terminated upon the occurrence of
any of the followings:
(1) all the obligations of the parties have been duly performed; or
(2) the parties agree in writing to terminate this Agreement.
The termination of this Agreement shall be without prejudice to any
rights and claims of any party against the other party under this
Agreement or any Applicable Law, and each party shall be relieved of all
future obligations toward each other, unless otherwise provided herein,
except for such liabilities and obligations which have occurred prior to
the termination.
5.6 All notices and other communications under this Agreement shall be in
writing and shall be effective upon actual receipt, to the following
addresses, or fax numbers:
If to the Purchasers, to:
Attention: Xxxx, Xxxx Hsien (Xxxxxxx)
Facsimile: 886-3-563-9081
Address: Xx. 00, Xxxxxxxxxx Xx. II,
Science-Based Industrial Park,
Hsinchu, Taiwan, ROC
If to the Seller, to:
Attention: Xxxx Xxxxx, President
Facsimile: 0-000-000-0000
Address: 00000 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
U.S.A.
If to Escrow Agent, to:
Xxxxx & XxXxxxxx, Attorneys-at-Law
Attention: Xxxxx Xxxx
Facsimile: 886-2-2716-9250
Address: 00X, 000,Xxx Xxx Xxxxx Xxxx
Xxxxxx, Xxxxxx
Notice of any change in any such address or fax number shall also be
given in the manner set forth above.
5.7 Except as otherwise provided for in this Agreement, attorney's fees and
costs incurred by the Seller and the Purchasers relating to the
compliance with this Agreement and the preparation thereof shall be
borne separately by each party incurring the same. Any charges levied as
bank fees for the Escrow Account and the transfer of funds shall be paid
by the Purchasers.
Exhibit B-4
Execution Copy
5.8 This Agreement constitutes the entire agreement among the Seller, the
Purchasers and the Escrow Agent with respect to the subject matter
contained herein and supersedes any prior understandings and agreements
among them respecting such subject matter.
5.9 Neither the Seller, the Purchasers nor the Escrow Agent may assign its
rights or delegate its obligations under this Agreement without the
prior written consent of the other parties.
5.10 This Agreement is to be governed by and construed in accordance with the
laws of Taiwan, the Republic of China ("ROC"), without regard to its
conflicts of law principles.
5.11 The parties agree to negotiate in good faith to resolve any dispute
between them regarding this Agreement. If the disputes cannot be
resolved by such good faith negotiation, the parties agree to submit the
dispute to the Arbitration Association of Taiwan, the Republic of China
for arbitration. The arbitration shall be made in Taipei, Taiwan
according to the Arbitration Law of the ROC and the arbitral award
rendered thereby shall be final, binding and enforceable against the
parties involved.
IN WITNESS WHEREOF, the parties hereto have caused their representatives
to execute this Agreement on the day and year first above written.
Exhibit B-5
Execution Copy
SELLER
Luminent, Inc.
-------------------------
By: Xxxx Xxxxx
Title: President
Exhibit B-6
Execution Copy
PURCHASERS
LIN, SONG-FURE (XXXXX)
By:
-------------------------
XXX, XXX XXX (RIO)
By:
-------------------------
XXXX, XXXX HSIEN (XXXXXXX)
By:
-------------------------
HOU, JANPU
By:
-------------------------
Exhibit B-7
Execution Copy
ESCROW AGENT
Xxxxx & XxXxxxxx, Attorneys-at-Law, Taipei
--------------------------
Name: Xxxxx Xxxx
Title: Senior Partner
Exhibit B-8
Execution Copy
ANNEX A
LIST OF PURCHASERS
1. Lin, Song-Fure (Xxxxx)
2. Xxxx, Xxxx Hsien (Xxxxxxx)
3. Hou, Janpu
4. Xxx, Xxx Xxx (Rio)
Exhibit B-9
Execution Copy
ANNEX B
JOINT NOTICE TO RELEASE THE ESCROWED PROPERTY
DATE:
------
Reference is made to the Share Purchase Agreement dated September 30, 2002 and
the Escrow Agreement dated September 30, 2002.
Capitalized terms used herein and not otherwise defined shall have the meanings
assigned to them in the Share Purchase Agreement and the Escrow Agreement.
We, the undersigned, hereby give you, the Escrow Agent, the notice to release
the Purchase Price to the Seller, and the duly completed and endorsed
Certificates and Transfer Forms as well as the duly executed Credit Transfer
Notice to the Purchasers. Please proceed to release the aforesaid Escrowed
Property immediately upon receipt of this notice.
By signing this notice, you acknowledge receipt of this notice.
SELLER PURCHASERS
LUMINENT, INC.
LIN, SONG-FURE (XXXXX)
--------------------
Name: Xxxx Xxxxx
Title: President
By:
-------------------------
RECEIVED BY: XXX, XXX XXX (RIO)
ESCROW AGENT
Xxxxx & XxXxxxxx, Attorneys-at-Law By:
-------------------------
-------------------------------
Name: Xxxxx Xxxx
Title: Senior Partner XXXX, XXXX HSIEN (XXXXXXX)
By:
-------------------------
HOU, JANPU
By:
-------------------------
Exhibit B-10
Execution Copy
EXHIBIT C
THE SHARES TO BE PURCHASED BY THE PURCHASERS
No. Name. # of Shares Acquired Total # of Shares Owned after Closing
QOI
1. Lin, Song-Fure (Xxxxx) 5,000,000 5,000,000
2. Xxxx, Xxxx Hsien (Xxxxxxx) 4,649,815 4,649,835
3. Hou, Janpu 4,650,000 4,650,000
4. Xxx, Xxx Xxx (Rio) 4,700,000 4,700,000
FOCI
1. Lin, Song-Fure (Xxxxx) 13,000,000 13,000,000
2. Xxxx, Xxxx Hsien (Xxxxxxx) 11,800,000 11,800,000
3. Hou, Janpu 11,770,000 11,770,000
4. Xxx, Xxx Xxx (Rio) 17,000,000 17,000,000
Exhibit C-1
Execution Copy
EXHIBIT D
CREDIT TRANSFER NOTICE
We, the undersigned, do hereby give you, FOCI FIBER OPTIC COMMUNICATIONS, INC.
(FOCI), notice of the transfer of the credit from Luminent, Inc. to the
individuals whose names appear below ("Credit Transfer") in the amount of
US$5,100,000 (FIVE XXXXXXX XXX XXX XXXXXXX XXXXXXXX XXXXXX XXXXXX DOLLARS)
pursuant to the Share Purchase Agreement dated September 30, 2002 and in
accordance with Article 297 of the Civil Code of the Republic of China.
The Credit Transfer will become effective and be binding on you and the
undersigned when this notice is delivered to you.
This notice is duly delivered to you on ___[date]___ and by signing on this
notice you acknowledge receipt of this notice and the effectiveness thereof.
LUMINENT, INC. LIN, SONG-FURE (XXXXX)
By:
-----------------------------
Name: Xxxx Xxxxx
Title: President By:
--------------------------
Acknowledged, approved and received by: XXX, XXX XXX (RIO)
FOCI FIBER OPTIC COMMUNICATIONS, INC.
By:
---------------------------- --------------------------
Name: Lin, Song-Xxxx Xxxxx
Title: President and Director of the Board
of Directors
XXXX, XXXX HSIEN (XXXXXXX)
By:
--------------------------
HOU, JANPU
BY:
--------------------------
Exhibit D-1
Execution Copy
EXHIBIT E
CONFIDENTIALITY AGREEMENT
THIS CONFIDENTIALITY AGREEMENT (this "Agreement"), is made and entered into on
September 30, 2002, by and amongst:
(1) Luminent, Inc., a corporation organized and existing under the laws of
the State of Delaware, the United States of America, with its registered
office located at 0000 Xxxxxxxxxxx Xx., Xxxxx 000, Xxxxxxxxxx, Xxxxxxxx
00000, New Castle County, Delaware, the United States of America
("Seller"); and
(2) The individuals listed in Annex A hereof (each a "Purchaser",
collectively the "Purchasers").
W I T N E S S E T H:
WHEREAS, the Seller and the Purchasers have entered into a Share Purchase
Agreement ("SPA") dated September 30, 2002 and other contracts and documents
referenced therein in connection with a sale of shares transaction involving
shares of common stock in FOCI Fiber Optic Communications, Inc. and Quantum
Optech Inc. ("Transaction").
NOW, THEREFORE, in consideration of the premises and mutual covenants
hereinafter set forth, the Seller and the Purchasers agree as follows:
ARTICLE 1 PROVISION OF INFORMATION
For the purposes of entering into and consummating the Transaction, the parties
have executed and will in the future execute various contracts, documents, and
instruments ("Documents") and the Seller has provided and will in the future
provide information relating to the Seller ("Information") for use by the
Purchasers in connection with the Transaction.
ARTICLE 2 USE OF DOCUMENTS AND INFORMATION
2.1 Each of the Purchasers agrees to use the Documents and the Information
only to the extent reasonably necessary to consummate the Transaction,
and that all such use will be made by the Purchasers alone.
2.2 Each of the Purchasers agrees, save as expressly permitted under this
Agreement, not to disclose, use, copy in whole or in part or modify or
adapt the Documents or the Information in any way.
ARTICLE 3 CONFIDENTIALITY
Each of the Purchasers agrees to keep the content and the existence of the
Transaction, the Documents and the Information confidential and, save as
expressly permitted under this
Exhibit E-1
Execution Copy
Agreement, not to disclose the content and the existence thereof to any third
party(ies).
ARTICLE 4 PERMITTED DISCLOSURE
4.1 Any of the Purchasers ("Disclosing Party") may disclose, in whole or in
part, the content and the existence of the Transaction, the Documents
and the Information if:-
a. the information relating to any of the Transaction, the
Documents or the Information has entered the public domain
otherwise than as a result of publication or disclosure by the
Disclosing Party; or
b. the Disclosing Party is required by law, regulation or order of
a court of competent jurisdiction to make such disclosure.
4.2 At the occurrence of the event stated in Article 4.1(b), the Disclosing
Party shall immediately notify the Seller in writing of that fact and of
all relevant surrounding circumstances. If the Disclosing Party is
unable to notify the Seller before such disclosure is required it shall
notify the Seller immediately after the disclosure has been made.
4.3 Each of the Purchasers will use its best endeavours to resist disclosure
and to maintain the confidentiality of any of the Transaction, the
Documents and the Information.
ARTICLE 5 PUBLIC ANNOUNCEMENTS
5.1 The Seller has the right to make any Public Announcements (as defined
below) at its discretion, provided that it will notify and discuss with
the Purchasers prior to making such Public Announcements.
5.2 Each of the Purchasers agrees not to make any Public Announcements in
relation to, or publicly comment on, any of the Transaction, the
Documents or the Information without the prior written consent of the
Seller. Where the Seller has consented to the Public Announcements to be
made by any of the Purchasers and to the time for making such Public
Announcements, the Purchaser making the Public Announcements shall,
before the Public Announcements are made, provide a copy of its draft
Public Announcements to the Seller for its review and approval.
5.3 The term "Public Announcements" include any and all publicity press
releases and other comments, announcements, disclosures or statements
relating to any of the Transaction, the Documents or the Information.
5.4 Notwithstanding the foregoing, the parties agree to cooperate to create
any and all appropriate Public Announcements relating to the
Transaction, the Documents, the Information or any matters in connection
therewith.
5.5 The provisions of this Article 5 apply to both oral and written Public
Announcements.
Exhibit E-2
Execution Copy
ARTICLE 6 RETURN OF INFORMATION
The Seller may at any time in its sole discretion request any of the Purchasers
or all of them to return or destroy (as the Seller may direct), copies of any
Information that are in its or their possession.
ARTICLE 7 MISCELLANEOUS PROVISIONS
7.1 The validity, construction and performance of this Agreement shall be
governed by the law of Taiwan, the Republic of China, without regard to
any principles of conflict of laws thereof.
7.2 This Agreement contains all the terms agreed by the parties regarding
the subject matter hereof and supersedes any prior agreements,
understandings or arrangements between them, whether oral or in writing.
7.3 No variation or amendment to this Agreement shall be effective unless in
writing signed by authorised representatives of the parties.
7.4 All notices and other communications under this Agreement shall be in
writing and shall be effective upon actual receipt, to the following
addresses, or fax numbers:
If to the Purchasers, to:
Attention: Xxxx, Xxxx Hsien (Xxxxxxx)
Facsimile: 886-3-563-9081
Address: Xx. 00, Xxxxxxxxxx Xx. II,
Science-Based Industrial Park,
Hsinchu, Taiwan, ROC
If to the Seller, to:
Attention: Xxxx Xxxxx, President
Facsimile: 0-000-000-0000
Address: 00000 Xxxxxxxx Xx.
Xxxxxxxxxx, XX 00000
U.S.A.
Notice of any change in any such address or fax number shall also be
given in the manner set forth above.
7.5 The failure of either party to enforce or to exercise, at any time or
for any period of time, any term of or any right arising pursuant to
this Agreement does not constitute, and shall not be construed as, a
waiver of such term or right and shall in no way affect that party's
right later to enforce or exercise it.
7.6 The invalidity or unenforceability of any term of or any right arising
pursuant to this Agreement shall not in any way affect the remaining
terms or rights.
Exhibit E-3
Execution Copy
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives on the day and year first above written.
Exhibit E-4
Execution Copy
SELLER:
LUMINENT, INC.
By:
-------------------------
Name: Xxxx Xxxxx
Title: President
Exhibit E-5
Execution Copy
PURCHASERS
LIN, SONG-FURE (XXXXX)
By:
-------------------------
XXX, XXX XXX (RIO)
By:
-------------------------
XXXX, XXXX HSIEN (XXXXXXX)
By:
-------------------------
HOU, JANPU
By:
-------------------------
Exhibit E-6
Execution Copy
ANNEX A
LIST OF PURCHASERS
1. Lin, Song-Fure (Xxxxx)
2. Xxxx, Xxxx Hsien (Xxxxxxx)
3. Hou, Janpu
4. Xxx, Xxx Xxx (Rio)
Exhibit E-7
