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
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1.1
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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.
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1.2
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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.
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1.3
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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.
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Article 2. Closing
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2.1
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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 ”).
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2.2
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Unless
otherwise specified herein, at the Closing:
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(a)
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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)
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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)
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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.
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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:
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(a)
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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)
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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.
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(c)
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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.
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(d)
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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.
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(e)
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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.
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(a)
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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.
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(b)
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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.
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(c)
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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.
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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
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6.1
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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).
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6.2
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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.
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6.3
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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.
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6.4
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Covenants
With Respect to the Lock-up Shares .
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(a)
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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)
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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)
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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
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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.
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6.6
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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.
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Article 7. Conditions To the
Closing
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7.1
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Conditions
to the Closing, etc .
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(a)
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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)
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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)
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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
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