MASTER SALE AND PURCHASE AGREEMENT

EXHIBIT 10.30

 

 

 

 

 

DATED April 14, 2005

 

 

 

 

 

 

 

 

EASTERN PACIFIC CIRCUITS HOLDINGS LIMITED

 

AND

 

MERIX CORPORATION

 

 

 

 

 

 

 

 

MASTER SALE AND PURCHASE AGREEMENT

 

 

 

 

 

 

 

 

 

 

 

 

 

Baker & McKenzie, Hong Kong

14th Floor, Hutchison House

10 Harcourt Road

Hong Kong

CONTENTS

 

 

i

 

ii

THIS AGREEMENT is made on April 14, 2005

 

BETWEEN :

 

(1)	EASTERN PACIFIC CIRCUITS HOLDINGS LIMITED , a company incorporated under the laws of the Cayman Islands, whose registered office is at Century Yard, Cricket Square, Hutchins Drive, P.O. Box 2681GT, George Town, Grand Cayman, British West Indies (the “ Seller ”); and

 

(2)	MERIX CORPORATION , a company incorporated in the State of Oregon, whose registered office is at 1521 Poplar Lane, P.O. Box 3000, F4-234, Forest Grove, OR 97116, United States of America (the “ Buyer ”).

 

RECITALS:

 

(A)

Each of the companies listed in part 1 of schedule 1 (the “ Business Sellers ”), Eastern Pacific Circuits (Cayman) Limited (“ EPC Cayman ”), a company incorporated under the laws of the Cayman Islands, and Eastern Pacific Circuits Limited (“ EPCL ”), a company incorporated under the laws of the Cayman Islands, is a direct or indirect wholly-owned subsidiary of the Seller.

 

(B)

EPC Cayman is the beneficial owner of all of the issued shares in the capital of Eastern Pacific Circuits Investments Limited (“ EPCI HK ”), a company incorporated under the laws of Hong Kong, and EPCL is the registered holder and beneficial owner of all of the issued shares in the capital of Eastern Pacific Circuits Investments (Singapore) Pte Ltd (“ EPCI Singapore ”), a company incorporated under the laws of Singapore.

 

(C)

The Seller has agreed to procure (a) the sale by each of the Business Sellers of its business and assets, (b) the sale by EPC Cayman of all of the issued shares in the capital of EPCI HK (the “ HK Shares ”) and (c) the sale by EPCL of all of the issued shares in the capital of EPCI Singapore (the “ Singapore Shares ”), in each case on the terms and subject to the conditions set forth in this Agreement.

 

THE PARTIES AGREE as follows:

 

1.         INTERPRETATION

 

1.1       In this Agreement:

 

“ Accepting Employees -HK ” has the meaning set forth in clause 17.2.4 ;

 

“ Accounts Receivable ” means, in relation to each Business, all the book and trade debts, notes, receivables and other debts and amounts owing to the relevant Business Seller in connection with the relevant Business (and whether or not yet due and payable) at Completion (including, without limitation, trade debts, deposits, prepayments, retrospective rebates and overpayments) all rights in relation thereto and the benefit of all guarantees or other security in respect thereof and interest thereon;

“ Acquiring Buyer Company ” has the meaning set forth in clause 11.1.2 ;

 

“ Actual Closing Cash Amount ” means the aggregate amount of the bank balances, cash, cash on deposit, short-term securities and investment accounts, including amounts for which cheques have been received by the relevant member of the EPCI HK Group and the EPCI Singapore Group or deposited in the bank accounts of the relevant member of the EPCI HK Group and the EPCI Singapore Group for which cheques have not cleared the drawer’s bank accounts at Completion and which were collected prior to the delivery of the Completion Statement, of each member of the EPCI HK Group and the EPCI Singapore Group as at the close of business on the day immediately before the Completion Date provided that there shall be deducted from such aggregate amount amounts for which cheques have been written by the relevant member of the EPCI HK Group and the EPCI Singapore Group, which cheques have not cleared the bank account as of Completion;

 

“ Actual Adjusted 2005 EBITDA ” means the audited consolidated profit before taxation, interest, depreciation and amortisation in respect of each Business and each member of the EPCI Hong Kong Group and EPCI Singapore Group for the financial year ended 31 December 2005 determined in accordance with clause 8.3 and adjusted in accordance with Part A of schedule 14 ;

 

“ Amount Claimed ” has the meaning set out in clause 7.1.1 ;

 

“ Approval ” has the meaning set forth in paragraph 8 of Schedule 3 ;

 

“ Assumed Liabilities ” means all Liabilities of the Business Sellers as at Completion (including accounts payable) in connection with the relevant Business and/or the Business Assets, including, without limitation, those Liabilities set out in part 4 of schedule 1 and excluding the Excluded Liabilities;

 

“ Auditors ” means PricewaterhouseCoopers, the auditors of the Group and the Buyer;

 

“ Available Records ” has the meaning set out in clause 21.1 ;

 

“ Borrowings ” means all sums outstanding under (a) the credit agreement dated 10 August 2000 (as amended and supplemented from time to time) between, inter alia, (i) Eastern Pacific Circuits Limited (formerly known as Pacific Circuits Limited) as parent borrower, (ii) Eastern Pacific Circuits (HK) Ltd (formerly known as Wong’s Circuits Limited) as subsidiary borrower, (iii) Standard Chartered Bank (Hong Kong) Limited as administrative agent and a group of lenders, pursuant to which the lenders agreed to provide US$150,000,000 to Eastern Pacific Circuits Limited and Eastern Pacific Circuits (HK) Limited; and (b) a facility agreement dated 28 April 2004 between Eastern Pacific Investments (Singapore) Pte Limited and Standard Chartered Bank (Hong Kong) Limited as administrative agent, and a group of lenders pursuant to which the lenders agreed to provide a US$5,100,000 facility to Eastern Pacific Circuits

 

2

Investments (Singapore) Pte Limited, being all interest bearing borrowings and Indebtedness in the nature of borrowings of the Group from financial institutions;

 

“ Business ” means, in relation to each Business Seller, the business carried on by that Business Seller as at Completion, and excluding only the Excluded Assets;

 

“ Business Assets ” means, in relation to each Business, all the property, undertaking, benefits, title, rights and assets of the relevant Business Seller, including, without limitation, the categories of assets set out in part 2 of schedule 1 and excluding only the Excluded Assets;

 

“ Business Claims ” means the benefit of all rights and claims arising from, or coming into existence as a result of, the carrying on of any Business by a Business Seller whether arising on, prior to or after Completion, other than rights and claims relating to the Excluded Assets or the Excluded Liabilities;

 

“ Business Goodwill ” means the goodwill relating to each Business, together with the right for the Buyer or relevant Buyer’s Group Company to represent itself as carrying on that Business in succession to the relevant Business Seller;

 

“ Business IP ” means, in relation to each Business, the Intellectual Property owned by the relevant Business Seller which is used in connection with the Business;

 

“ Business Contracts ” means, in relation to each Business Seller, all the contracts, engagements, licences, guarantees, sale and purchase orders and other commitments relating to the relevant Business at Completion, which have been entered into or undertaken by or on behalf of, or the benefit of which are held on trust for or have been assigned to, that Business Seller which in any case are current uncompleted or unperformed or in respect of which that Business Seller has any rights, claims, benefits entitlements, Liabilities or obligations relating to the Business, including the Business Insurance Policies, the Hong Kong Lease (provided that consent of assignment of the Hong Kong Lease is obtained from the Hong Kong Science and Technology Park Corporation) and agreements or other documents relating to ownership or occupation of the Business Properties, but excluding all employment contracts;

 

“ Business Day ” means a day other than a Saturday or Sunday or public holiday in Hong Kong, Canada, Singapore, the Cayman Islands or the United States of America;

 

“ Business Insurance Policies ” means the insurance policies set out in part 8 of schedule 1 ;

 

“ Business Motor Vehicles ” means, in relation to each Business, the motor vehicles owned by the relevant Business Seller and used by it for the purposes of that Business;

 

“ Business Plant and Equipment ” means, in relation to each Business, all the loose plant, machinery, equipment, tooling and furniture of the relevant Business Seller (not

 

3

being business fixtures and fittings forming part of the Business Properties) used for the purposes of that Business;

 

“ Business Properties ” means the properties owned by and occupied by the Business Sellers, details of which are set out in part 6A of schedule 1 ;

 

“ Business Records ” means, in relation to each Business, any lists of present and former customers and suppliers, business plans and forecasts, notices, enquiries, orders, correspondence, computer disks, tapes or other machine readable or other records of a financial or marketing nature to the extent that they relate to the Business and are owned by the Business Seller but excluding any of the foregoing to the extent that they are Excluded Assets;

 

“ Business Sellers ” has the meaning set forth in Recital (A) ;

 

“ Business Tax ” means, all forms of taxation, deductions, withholdings, duties, imposts, levies, fees, charges and rates imposed, levied, collected, withheld or assessed by any Government Authority and any interest, additional taxation penalty, surcharge or fine in connection therewith payable by any Business Seller relating to the use and ownership of the Business Assets and the operation of the Business prior to the Completion Date;

 

“ Buyer MPF Scheme ” means the mandatory provident fund scheme established by the Buyer or the relevant Buyer’s Group Company for its Hong Kong employees;

 

“ Buyer Obligation ” means any representation, warranty or undertaking to indemnify given by the Buyer to the Seller under this Agreement or any of the Other Documents;

 

“ Buyer’s Completion Documents ” has the meaning set out in clause 11.1.4 ;

 

“ Buyer’s Group ” means the Buyer or a company which is its ultimate parent company and each subsidiary of the Buyer and of its ultimate parent company from time to time and includes, for the avoidance of doubt, after Completion, each of EPCI HK, EPCI Singapore and their subsidiaries, and “ Buyer’s Group Company ” means any one of them;

 

“ Canadian Property ” means all of Eastern Pacific Circuits (Canada) Limited’s rights, title and interest in the property situated at Units 37, 38 and 39, Level 1, York Region Condominium Corporation No. 711, 145 Royal Crest Court, Markham, Ontario, Canada;

 

“ Cash ” means, in relation to each Business, all cash (including cash in-hand and cash at bank), cash on deposit and short-term securities and investment accounts held by the relevant Business Seller for the purposes of the Business;

 

“ Closing Working Capital ” means Working Capital as at the Completion Date;

 

4

“ Completion ” means completion of the sale and purchase of the Businesses, the Business Assets, the HK Shares and the Singapore Shares in accordance with this Agreement;

 

“ Completion Date ” means the later of: (i) 15 June 2005; and (ii) the date which is five (5) Business Days after the date on which the last of the Conditions is satisfied or waived provided that this date shall not be earlier than the date which is 60 days after the date on which the Condition in clause 4.1.1(a) is satisfied or waived or such other date as may be agreed by both parties in writing;

 

“ Completion Statement ” has the meaning set out in clause 6.1 ;

 

“ Condition ” means a condition set out in clause 4.1 and “ Conditions ” means all those conditions;

 

“ Consent ” has the meaning set out in clause 16.3 ;

 

“ Costs ” means obligations, Liabilities, losses, damages, costs (including reasonable legal costs) and expenses (including interest and Tax), actions, proceedings, claims, demands, penalties and compensation awards in each case of any nature whatsoever;

 

“ Debt Amount ” means the Borrowings of the Group on the Completion Date, as determined by the Lenders and notified in writing to the parties no later than three (3) Business Days before the Completion Date and, for the avoidance of doubt, such amount shall be expressed in US$;

 

“ Deduction ” has the meaning set out in clause 7.1.1 ;

 

“ Defaulting Party ” has the meaning set out in clause 5.4 ;

 

“ Depreciation Claw-back Shortfall ” has the meaning set out in clause 20.2 ;

 

“ Desay Land Premium Payment ” means 50% of RMB5,915,133 being the amount payable to