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Exhibit
10.1
STOCK PURCHASE
AGREEMENT
AMONG
Strong Tops Limited as
Seller
AND
Strong Ace Limited as BVI
Holdco
AND
InterVideo Digital Technology
Corp., as Purchaser
Dated as of March 12,
2005
STOCK PURCHASE
AGREEMENT
This STOCK PURCHASE AGREEMENT, dated as
of March 12, 2005 (this “ Agreement ”), is made
by and among:
Strong Tops Limited, a company organized
pursuant to the laws of the British Virgin Islands (the “
Seller );
Strong Ace Limited, a company organized
pursuant to the laws of the British Virgin Islands (the “
BVI Holdco ”); and
InterVideo Digital Technology Corp., a
company organized pursuant to the laws of the Republic of China
(the “ Purchaser ”).
WITNESSETH:
WHEREAS, the Purchaser wishes to acquire
control of at least a majority of the common stock, par value NT
$10 per share (“ Common Shares ”), of
Ulead Systems Inc. (the “ Target Company
”);
WHEREAS, on the date hereof, BVI Holdco
is the record and beneficial owner of 1,000,000 shares of the
Common Shares of the Target Company;
WHEREAS, on the date hereof, all of the
shares of BVI Holdco are owned by the Seller (collectively, the
“ Target Shares ”);
WHEREAS, the Seller wishes to sell or
caused to be sold, all of the Target Shares to the Purchaser and
the Purchaser wishes to purchase all of the Target Shares from
Seller on the terms and subject to the conditions of this
Agreement;
NOW, THEREFORE, in consideration of the
premises and the mutual covenants and agreements set forth
hereinafter, the Parties hereby agree as follows:
Article 1. Transfer, and Purchase
Price
| 1.1 |
Transfer of Target Shares . Upon the terms and subject
to the conditions set forth herein, and relying on the
representations, warranties and covenants contained herein, at the
Closing (as defined in Article 2.1), the Seller shall sell or cause
to be sold, all of the Target Shares to the Purchaser, free and
clear of any liens or encumbrances, and the Purchaser or its
designated person shall purchase all of the Target Shares from
Seller in accordance with Article 2. The number of the Target
Shares to be sold by the Seller is set forth on Schedule
1 hereto. |
| 1.2 |
Purchase Price . The price for the sale and purchase of
the Target Shares hereunder shall be NT$30 per Common Share of the
Target Company held by BVI Holdco and the aggregate purchase price
for all Target Shares (the “ Purchase Price
”) shall be NT$30,000,000. |
| 1.3 |
Form of Consideration . The Purchase Price shall be
payable by the Purchaser in cash with equivalent US dollars
adopting the applicable exchange rate of US dollar to NT dollar on
the Closing Date, in accordance with Article 2. |
Article 2. Closing
| 2.1 |
Upon the satisfaction (or waiver in writing by the Party
entitled to waive the applicable condition) of all of the
conditions precedent set forth in Articles 7.1(a), 7.1(b) and
7.1(c), the Purchaser shall deliver a written notice to the Seller
for transfer of the Target Shares (“ Closing
Notice ”). The transfer of all of the Target Shares
(the “ Closing ”) shall occur at the
office of Tsar and Tsai, at 11:00 a.m. (Taipei time), no later than
three (3) Taipei business days after delivery of the Closing
Notice, or at such other place, date and time as the Seller and the
Purchaser may agree (the “ Closing Date
”). |
| 2.2 |
Unless otherwise specified herein, at the Closing: |
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(a) |
the Assignment Documents (as defined in Article 6.3) and the
Taiwan Securities Central Depositary Co., Ltd. (“
TSCD ”) securities deposit book (“
Deposit Book ”) representing BVI Holdco’s
ownership of not less than 1,000,000 Common Shares of the Target
Company shall be delivered to the Purchaser; |
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(b) |
the Seller shall cause all directors and officers of BVI Holdco
to resign or be removed from such position and confirm that they
have no claim against BVI Holdco; |
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(c) |
the Purchaser shall send, by wire transfer of immediately
available funds in equivalent US Dollars, to an account designated
by the Seller in writing at least two Taipei business days prior to
the Closing Date, the Purchase Price, net of any applicable tax,
against the transfer of all title to, rights and interests in, the
Target Shares. |
Article 3. Representations and
Warranties of Seller
The Seller hereby makes the
representations and warranties to the Purchaser on the date hereof
and throughout the Closing Date:
| (a) |
Organization and Good Standing . The Seller is a
corporation duly organized, validly existing and in good standing
under the laws of its jurisdiction of incorporation. The Seller has
all requisite power and authority to own, lease and operate its
properties and to carry on its business as now
conducted. |
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| (b) |
Authorization of Agreements . The Seller has all
requisite corporate power, authority and legal capacity to execute,
deliver and perform this Agreement, and each other agreement,
document, instrument or certificate contemplated by this Agreement
or to be executed by Seller in connection with the consummation of
the transactions contemplated by this Agreement (collectively,
together with this Agreement the “ Seller
Documents ”), and to consummate the transactions
contemplated hereby and thereby. The execution, delivery and
performance by Seller of this Agreement and the Seller Documents
have been, and at the Closing, will have been, duly authorized,
this Agreement and each of the Seller Documents (when executed)
constitutes legal, valid and binding obligations of the Seller,
enforceable against it in accordance with their respective
terms. |
| (c) |
Conflicts . Neither the execution and delivery by the
Seller of this Agreement and the Seller Documents, nor the
compliance by the Seller with any of the provisions hereof or
thereof, including, without limitation, the consummation of the
transactions contemplated hereby, will ( i ) conflict with,
or result in the breach of, any provision of the articles of
incorporation or by-laws of the Seller, or ( ii ) violate
any statute, rule, regulation, order or decree of any governmental
body by which the Seller is bound. |
| (d) |
Consents. No consent, waiver, order or permit of, or
declaration or filing with, or notification to, any person or any
government agency or stock exchange is required on the part of the
Seller in connection with the execution and delivery by the Seller
of this Agreement or the Seller Documents, or the compliance by the
Seller with any of the provisions hereof or thereof, including,
without limitation, the consummation of the transactions
contemplated hereby. Neither the Seller nor BVI Holdco is a party
or subject to any agreement or understanding which affects or
relates to the voting or giving of written consents by any
director, supervisor or security holder of the Target Company with
respect to any security of the Target Company, other than as
provided in this Agreement. |
| (e) |
Ownership of Target Shares . The Seller owns on the date
hereof, free and clear of all liens or encumbrances, such number of
the Target Shares as set forth in Schedule 1 hereto
and it has the power and authority to sell, transfer, assign and
deliver the Target Shares as provided in this Agreement, and the
transfer of the Target Shares to the Purchaser or its designated
person at the Closing will convey to the Purchaser legal and
beneficial title and ownership of the Target Shares, free and clear
of any and all liens or encumbrances. BVI Holdco owns on the date
hereof, free and clear of all liens or encumbrance and such number
of the Common Shares of the Target Company as set forth in
Schedule 1 hereto. |
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Article 4. Representations And
Warranties of the Purchaser
The Purchaser hereby makes the
representations and warranties to Seller on the date hereof and
throughout the Closing Date.
| (a) |
Organization and Good Standing . The Purchaser is a
corporation duly organized, and validly existing and in good
standing under the laws of the ROC and has all requisite corporate
power and authority to own, lease and operate its properties and to
carry on its business as now conducted. |
| (b) |
Authorization of Agreement . The Purchaser has all
requisite corporate power, authority and legal capacity to execute,
deliver and perform this Agreement and each other agreement,
document, instrument or certificate contemplated by this Agreement
or to be executed by the Purchaser in connection with the
consummation of the transactions contemplated by this Agreement
(collectively, together with this Agreement, the “
Purchaser Documents ”), and to consummate the
transactions contemplated hereby and thereby. The execution,
delivery and performance by the Purchaser of this Agreement and the
Purchaser Documents have been and at the Closing, will have been,
duly authorized and this Agreement and each of the Purchaser
Documents (when executed) constitutes legal, valid and binding
obligations of the Purchaser, enforceable against it in accordance
with their respective terms. |
| (c) |
Conflicts. Neither the execution and delivery by the
Purchaser of this Agreement and the other Purchaser Documents, nor
the compliance by the Purchaser with any of the provisions hereof
or thereof will (i) conflict with, or result in the breach of, any
provision of the Purchaser’s organizational documents, (ii)
violate any statute, rule, regulation, order or decree of any
governmental body by which the Purchaser is bound. |
Article 5. Representations and
Warranties of the Seller and BVI Holdco
The Seller and BVI Holdco hereby,
jointly and severally, make the representations and warranties as
set forth in Schedule 2 to the Purchaser in respect of BVI
Holdco on the date hereof and throughout the Closing
Date.
Article 6. Covenants
| 6.1 |
Other
Actions . Each of the Parties shall use its reasonable best
efforts to ( i ) take all actions necessary or appropriate
to consummate the transactions contemplated
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by this Agreement, (
ii ) procure that its representations and warranties set
forth in this Agreement remain true and accurate through and on the
Closing Date and ( iii ) cause the fulfillment at the
earliest practicable date of all of the conditions precedent to the
Parties’ obligations to consummate the transactions
contemplated by this Agreement.
Without limiting the
generality of Article 6.1, it is understood and agreed that
promptly following the annual general meeting of shareholders of
the Target Company scheduled to be held on March 29, 2005 (together
with adjournment or substitute meetings, “ 2005
AGM ), BVI Holdco shall cause the Target Company to make
all necessary filings with the Taiwan Stock Exchange (“
TSE ”) and the TSCD in order for facilitating
the release by TSCD of certain Common Shares currently under
lock-up requirements of TSE (“ Lock-up Shares
”) and owned by certain shareholders named in Schedule 3 who
have decided to tender their Common Shares in the Qualifying Tender
Offer to be commenced by the Purchaser as indicated in Article
7.1(c)(iv).
| 6.2 |
Election of New Directors and Supervisors . Seller and
BVI Holdco shall cause the supervisor appointed by BVI Holdco to
the Target Company to resign or removed from his appointed position
as of the 2005 AGM. All Parties shall use their respective
reasonable best effort to support that two (2) new directors out of
seven (7) board seats are nominated by BVI Holdco, two (2) new
directors (including one independent director) are nominated by the
Purchaser at the election for directors in 2005 AGM. All Parties
shall also use their respective reasonable best effort to support
that two (2) supervisors (including one independent supervisor) out
of three (3) supervisors are nominated by the Purchaser at the
election for supervisors in 2005 AGM. BVI Holdco shall, and the
Seller shall cause BVI Holdco to, and the Purchaser shall cause its
affiliates to, vote in favor of the foregoing directors and
supervisors in 2005 AGM. |
| 6.3 |
Delivery of Documents and Seals. Within five (5) Taipei
business days after the execution of this Agreement, BVI Holdco
shall, and the Seller shall cause BVI Holdco to, delver ( 1
) the TSCD Deposit Book representing BVI Holdco’s ownership
of not less than 1,000,000 Common Shares of the Target Company and
all corporate seals used by BVI Holdco, and ( 2 ) all
corporate documents, share certificates, books, records, account
statements, instruments of conveyance and such other instruments as
are necessary or appropriate to transfer, convey and assign the
Target Shares duly completed, executed and endorsed by the Seller
(“ Assignment Documents ”) for the
transfer of the Target Shares to the escrow agent designated by the
Purchaser and the Seller (“Escrow Agent”) for hold in
escrow. On the Closing Date, if the Escrow Agent shall have
received a copy of (i) the Closing Notice and (ii) irrevocable
remittance instruction for payment of the Purchase Price according
to Article 2.2(c), the Escrow Agent shall release the Assignment
Documents to the Purchaser. |
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If the Escrow Agent does not
receive the Closing Notice and the irrevocable remittance
instruction for payment of the Purchase Price according to Article
2.2(c) prior to the date specified in Article 9.2(a)(ii) or this
Agreement has been terminated according to Article 9.2(a), within
three (3) Taipei business days after the date specified in Article
9.2(a)(ii) or the date of the termination of this Agreement
(whichever is applicable), the Escrow Agent shall return the
Assignment Documents to the Seller.
| 6.4 |
Covenants With Respect to the Lock-up Shares
. |
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(a) |
BVI Holdco undertakes to, and the Seller shall cause BVI Holdco
to, issue a consent letter promptly following the 2005 AGM,
consenting to provide 1,000,000 Common Shares of the Target Company
to the TSCD for the replacement of certain Lock-up Shares as set
out in Schedule 3 to facilitate the tender of such Lock-up
Shares by certain shareholders named in Schedule 3 in the
Qualifying Tender Offer. |
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(b) |
Promptly following the 2005 AGM, the Purchaser shall issue a
consent letter consenting to provide 6,665,750 Common Shares of the
Target Company to the TSCD for the replacement of the Lock-up
Shares as set out in Schedule 3 , provided that ( i )
new directors and supervisors in the Target Company shall have been
elected pursuant to Article 6.2, and ( ii ) BVI Holdco shall
have issued the consent letter pursuant to Article 6.4(a)
consenting to provide up to 1,000,000 Common Shares of the Target
Company to the TSCD for the replacement of the Lock-up Shares and
(iii) the Seller and the BVI Holdco are not in default of Article
6.6. |
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(c) |
Promptly following the receipt by the Target Company of TSE
Approval, BVI Holdco shall, and the Seller shall cause BVI Holdco
to, and the Purchaser shall deposit their respective applicable
Replacement Shares with TSCD as set out in Schedule 3 as
soon as possible. |
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| 6.5 |
Covenant with Respect to the BVI Holdco. BVI Holdco
undertakes, and the Seller shall cause BVI Holdco, (a) not to take
any action that could reasonably be expected to result in diluting
or concentrative effective on BVI Holdco’s’ ownership
percentage in the Target Company between the date hereof and the
Closing Date, (b) to carry on its business in an ordinarily manner
and consistent with the past practice and in compliance in all
aspects with all applicable laws and regulations, including but not
limited to any tax related laws, regulations, or any other similar
government orders. |
| 6.6 |
No Shop . From the date hereof and until the Closing
Date or the date of the termination of this Agreement, whichever is
earlier, Seller and BVI Holdco shall not, directly or indirectly,
solicit, initiate or participate in any way in discussions or
negotiations with, or provide any information or assistance to, any
person, firm, corporation or other entity (other than Purchaser)
concerning any purchase, sale or other disposition of the Target
Shares or any other Common Shares of the Target Company held by the
Seller or BVI Holdco (if any) or assist or participate in,
facilitate, negotiate or encourage any offer, effort or attempt by
any other person to purchase, sell or dispose of the Target Shares
or any other Common Shares of the Target Company held by the Seller
or BVI Holdco (if any), except as expressly contemplated by this
Agreement. Seller and BVI Holdco shall promptly communicate to
Purchaser the terms of any offer, proposal or contract which it may
receive or which it may become aware with respect to any such
transaction. |
Article 7. Conditions To the
Closing
| 7.1 |
Conditions to the Closing, etc . |
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(a) |
Conditions to the Obligations of Each Party . The
obligations of the Parties to consummate the transactions
contemplated by this Agreement in connection with the transfer of
the Target Shares shall be subject to the fulfillment, or waiver by
the Parties, on or prior to the Closing Date of each of the
following conditions: |
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(i) |
all government approvals, authorizations, filings required for
consummation of the transactions contemplated by this Agreement
shall have been obtained; and |
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(ii) |
there shall not be in effect any injunction or restraining
order or other similar order issued by any governmental body
restraining or prohibiting the consummation of the transactions
contemplated by this Agreement. |
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(b) |
Conditions to the Obligation of Seller . The obligation
of Seller to consummate the transactions contemplated by this
Agreement in connection with the tra |
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