UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-K
CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) OF
THE SECURITIES ACT OF 1934
Date of Report (Date of earliest event reported) April 13, 1998
PRAEGITZER INDUSTRIES, INC.
Oregon 34-027932 93-0790158
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(State or other jurisdiction of (Commission (IRS Employer
incorporation or organization) File No.) Identification No.)
1270 SE Monmouth Cut Off Rd., Dallas, OR 97338-9532
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(Address of principal executive offices) (Zip Code)
(503) 623-1000
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(Registrant's telephone number, including area code)
No Change
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(Former name, former address and former fiscal year, if changed since
last report)
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Item 2. Acquisition or Disposition of Assets
Pursuant to a Stock Purchase Agreement (the "Stock Purchase Agreement")
dated September 24, 1997, between Praegitzer Industries, Inc., an Oregon
corporation ("Praegitzer") and Likom PCB Sdn. Bhd., a Malaysian private company
limited by shares ("Likom"), Praegitzer acquired 51% of the outstanding capital
stock (the "Acquisition") of Likom, a printed circuit board manufacturer located
in Malaysia. This transaction closed on April 13, 1998.
The purchase price for the assets is up to $5.2 million Malaysian Ringgit
($1,432,500) based on the currency exchange rate on April 27, 1998, which will
consist of the transfer and contribution to Likom over an eighteen-month period
ending in October, 1999 of third-party software license rights, machinery and
equipment currently owned by Praegitzer. At its option, Praegitzer may
contribute cash in lieu of this property. If cash is contributed, Praegitzer may
draw on its line of credit with KeyBank National Association. The amount of
consideration paid in connection with the transaction was determined in
arm's-length negotiations between Praegitzer and Likom.
Praegitzer intends to continue using the Acquisition assets in the line of
business previously operated by Likom.
For a more complete description of the terms of the Acquisition, reference
is made to the Stock Purchase Agreement, which is incorporated by reference as
Exhibit 2.1 to this Current Report on Form 8-K as indicated in Item 7 below.
Item 7. Financial Information, Pro Forma Financial Information and Exhibits
(a) Financial Statements of Business Acquired.
The Registrant has determined that it is impracticable to provide the
financial statements of Likom at the time this Current Report on Form 8-K is
filed with the Securities and Exchange Commission (the "Commission"). Such
financial statements will be filed with the Commission by an amendment of this
report no later than 60 days after the date on which this report must be filed
with the Commission.
(b) Pro Forma Financial Information.
The Registrant has determined that it is impracticable to provide this pro
forma financial information at the time this Current Report on Form 8-K is filed
with the Commission. Such information will be filed with the Commission by an
amendment of this report no later than 60 days after the date on which this
report must be filed with the Commission.
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(c) Exhibits.
2.1 Stock Purchase Agreement, dated as of September 24, 1997, between
Praegitzer Industries, Inc. and Likom PCB Sdn. Bhd.
2.2 List of omitted schedules to Stock Purchase Agreement, dated as of
September 24, 1997, between Praegitzer Industries, Inc. and Likom PCB
Sdn. Bhd.
*23.1 Consent of Deloitte & Touche LLP, independent auditors
*99.1 Press Release dated April 23, 1998.
SIGNATURE
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
Dated: April 28, 1998
PRAEGITZER INDUSTRIES, INC.
By: SCOTT GILBERT
--------------------------------------
Scott Gilbert
Treasurer
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*To be filed by amendment.
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EXHIBIT INDEX
Sequential
Exhibit No. Description Page
----------- ----------- No.
----------
2.1 Stock Purchase Agreement, dated as of September
24, 1997, between Praegitzer Industries, Inc. and
Likom PCB Sdn. Bhd.
2.2 List of omitted schedules to Stock Purchase
Agreement, dated as of September 24, 1997, between
Praegitzer Industries, Inc. and Likom PCB Sdn.
Bhd.
*23.1 Consent of Deloitte & Touche LLP, independent
auditors
*99.1 Press release dated April 23, 1998
- ----------------------
*To be filed by amendment.
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STOCK PURCHASE AGREEMENT
This AGREEMENT, dated as of September 24, 1997, is by and among PRAEGITZER
INDUSTRIES, INC., an Oregon corporation with its principal place of business at
1270 S.E. Monmouth Cutoff, Dallas, OR 97338, U.S.A. ("Buyer"), LIKOM PCB SDN.
BHD., a Malaysian private company limited by shares ("Company") and RIBUTASI
HOLDINGS SDN. BHD., a private company limited by shares which is incorporated in
Malaysia and having its registered office at Level 46, Menara Lion, 165 Jalan
Ampang, 50450 Kuala Lumpur ("Seller").
Seller is the owner of 42,740,000 shares, with a nominal value of RM 1.00
per share (the "Shares") of the Company, which represent 100 percent of the
issued and outstanding stock of the Company. Pursuant to the terms and
conditions of this Agreement, Buyer wishes to acquire 21,797,400 of the Shares
(the "Acquisition Shares"), representing 51% of the Shares, from Seller and
Seller wishes to sell and deliver the Acquisition Shares to Buyer.
The parties agree as follows:
1. Purchase and Sale. Buyer agrees to acquire the Acquisition Shares and
Seller agrees to sell and deliver the Acquisition Shares to Buyer, all in
accordance with the terms and conditions of this Agreement.
2. Consideration. As consideration for the purchase of the Acquisition
Shares, and at the request of the Seller, Buyer agrees to transfer and
contribute to the Company third-party software license rights, machinery and
equipment for use in the business of the Company, having a value (to be
calculated on the basis of replacement cost in Malaysia, which may be greater
than or different from fair market value) of up to RM 5.2 million. Any or all of
such contributions may represent software, machinery or equipment previously
acquired or used by Buyer or services rendered to the Company by or on behalf of
Buyer. At its option, Buyer may, in lieu of all or part of these contributions,
contribute cash in an equivalent amount to be applied to the purchase from Buyer
of the same software license rights, machinery and equipment, or make cash
expenditures for the account of the Company. Such transfers, contributions and
expenditures will be made at such times and in such amounts as the Buyer shall
in its sole discretion determine. The parties contemplate that such
contributions and expenditures will be made over a period beginning July 1, 1997
and ending eighteen months after the Closing (as hereinafter defined).
3. Closing and Effective Date.
3.1 Closing Date. The closing ("Closing") shall be held fifteen days
after the Buyer receives notice from the Seller that all of the consents and
approvals referred to in Section 8.1 below have been obtained, or if that day is
not a business day in Kuala Lumpur, on the next succeeding business day, but not
in any event later than
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March 31, 1998 ("Closing Date") at the offices of Chooi & Company in Kuala
Lumpur, or at such other time and place as is agreed by the parties.
3.2 Actions prior to Closing. Upon the execution of this Agreement,
the Seller shall deliver the following to the Buyer's solicitors in Malaysia, as
stakeholders pending completion of this Agreement:
(a) undated circular resolutions of the existing board of
directors of the Company ("Completion Resolutions"), which
will take immediate effect upon dating, for the following:
(i) to authorize the acceptance and registration of the
transfer of all the Acquisition Shares to the Buyer or
its nominees which are its subsidiaries; and
(ii) to approve in accordance with the Articles of
Association of the Company the appointments of the
nominees of the Buyer to the board of directors of the
Company on the Closing date.
(b) if required by the Buyer, undated letters of resignation
from each of the directors (which will take immediate effect
upon dating) without any entitlement to any compensation,
damages and/or any payment whatsoever and letter from each
of the directors confirming that he has no claim whatsoever
against the Company.
(c) if required by the Buyer, an undated letter of resignation
of the company secretary of the Company (which will upon
dating take immediate effect) which shall also confirm that
the company secretary has no claim whatsoever against the
Company arising from the duties and office as company
secretary of the Company for whatever reasons.
3.3 The Closing. The Closing shall take place in the following manner:
(a) The Seller shall deliver to the Buyer the following:
(i) the original share certificates (whether jointly or
severally) in respect of the Acquisition Shares
beneficially owned by the Seller;
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(ii) the valid, registrable but unstamped transfers duly
executed by the Seller in respect of the Acquisition
Shares in favor of the Buyer;
(iii) the Form PDS6 (adjudication form) duly completed and
executed by the secretary of the Company for purposes
of stamp duty adjudication (in the event that there is
no relief from stamp duty) including the audited
accounts of the Company for the past one (1) year; and
(iv) such waivers, consents or other documents as may be
required to give good title to the Acquisition Shares
and to enable the Buyer to become the registered holder
of the Acquisition Shares;
(b) The Buyer's solicitors shall deliver to the Buyer the
following:
(i) the undated letter of resignation of each of the
directors of the Company without any entitlement to any
compensation, damages and/or any payment whatsoever and
letter from each of the directors confirming that he
has no claim whatsoever against the Company, if
required by the Buyer; and
(ii) the Completion Resolutions.
3.4 Post-Closing. The Seller acknowledges that the Acquisition Shares
may not be registered in the name of the Buyer on the Closing Date as
adjudication of the stamp duty payable on the transfers of the Acquisition
Shares from the Seller to the Buyer may take some time after the Closing Date.
In view of the foregoing, after Closing, the Seller, as bare trustee, agrees to
vote in the manner as directed by the Buyer as the beneficial owner of the
Acquisition Shares in the Buyer's absolute discretion in relation to any matters
concerning the Company which would have been done by the Buyer if it were a
registered shareholder of the Company. The Seller further agrees to grant and
deliver to the Buyer's solicitors as stakeholders, upon execution of this
Agreement, an irrevocable power of attorney in favor of the Buyer (a) to vote
the Acquisition Shares in the name and on behalf of the Seller from and after
the Closing, and (b) to vote on any and all special resolutions (as that term is
used in the Companies Act, 1965, as the same may be amended from time to time)
all Shares held by the Seller from and after the Closing, together with
authorization to the Buyer's solicitors to have the power of attorney filed at
the Kuala Lumpur High Court for registration on the Closing Date.
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4. Representations and Warranties of Seller and the Company . Seller and
the Company represent and warrant to Buyer, subject to the exceptions set forth
in Schedule 1 hereto, that:
4.1 Organization of Seller. Seller is a private company limited by
shares duly organized and validly existing under the laws of Malaysia.
4.2 Authority. Seller has all requisite corporate power and authority
to sell the Acquisition Shares, enter into this Agreement and to perform its
obligations hereunder. This Agreement has been duly executed and delivered by
Seller and is a legal, valid and binding obligation of Seller, enforceable in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by equitable remedies.
4.3 No Conflict or Approval. The execution, delivery and performance
of this Agreement by Seller do not conflict with or result in any breach of any
provision or the creation of any lien or encumbrance upon any of the property of
Seller or the Company pursuant to their respective charters or bylaws or any
law, regulation, order, judgment, writ, injunction, license, permit, agreement
or instrument binding on Seller or the Company, the noncompliance with which
would materially adversely affect the property, business or financial condition
of Seller or the Company. The execution, delivery and performance by Seller of
this Agreement and the consummation of the transactions contemplated hereby do
not require the approval or consent of, or any filing with, any third party,
including without limitation, any governmental authority or agency, except the
approval of the Ministry of International Trade and Industry, and (b) to the
extent applicable, the approval of the Controller of Foreign Exchange
4.4 Title to Shares. Seller is the beneficial, legal and record owner
of the Shares and has good and valid title thereto, free and clear of any lien,
pledge, charge, encumbrance, option or limitation, including limitations
affecting their ability to vote the Shares or to transfer the Acquisition Shares
to Buyer. At the Closing, Buyer will acquire good title to the Acquisition
Shares, free and clear of all pledges, security interests, liens, charges,
encumbrances, equities, claims, options or limitations of whatever nature. All
governmental approvals, licenses and authorizations which were necessary or
desirable in connection with the allotment or transfer of shares to the present
and former holder thereof and the activation of the Company (including the
appointment of directors) were duly obtained and true and complete copies of all
such approvals, licenses and authorizations (and of all amendments and
supplements thereto) have been supplied to the Buyer.
4.5 Organization and Standing of Company; Memorandum and Articles of
Association of Company. The Company is a private company limited by shares and
is duly organized and validly existing under the laws of Malaysia. The Company
has all
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requisite corporate power to own and operate its properties and assets and to
carry on its business as currently conducted. The Company has furnished Buyer or
Buyer's counsel with true and complete copies of its Memorandum and Articles of
Association, as amended through the Closing Date. The Company is not in
receivership or liquidation, no steps have been taken to put the Company into
receivership or liquidation, no petition has been presented or resolution passed
or proposed for winding-up the Company and there are no grounds on which a
petition or application or other step could be based or taken to the winding up
or appointment of a receiver or receiver and manager of the Company.
4.6 Capitalization of the Company. The authorized capital stock of the
Company consists of 50,000,000 shares, with a nominal value of RM 1.00 per
share, of which 42,740,000 shares are issued and outstanding. All issued and
outstanding shares of the Company have been duly authorized and validly issued
and are fully paid and nonassessable. There are no options or warrants or other
privileges or rights outstanding to purchase or subscribe any of the authorized
but unissued stock of the Company. There are no securities, debentures or
obligations which are convertible into shares.
4.7 Subsidiaries; Investments. The Company has no subsidiaries, and no
other investments in any corporation, partnership, association, joint venture or
other entity.
4.8 Compliance with Laws. The Company has at all relevant times
conducted its business in material compliance with its Memorandum and Articles
of Association and all applicable laws and regulation, rules, by-laws, orders,
guidelines or notices. The Company is not subject to any outstanding order,
writ, injunction or decree which materially and adversely affects its business,
results of operations, financial condition or prospects, and the Company has not
been charged with, or threatened with a charge of, a violation of any provision
of law or regulation. All matters contemplated by all such approvals, licenses
and authorizations (and all amendments and supplements thereto) have been put
into effect in accordance with the terms thereof, and the Company and the Seller
have not been and are not in breach of any of the terms thereof and the
continued holding by the Seller of the shares in the Company and the present
composition of the board of directors are in accordance with the terms thereof.
All such approvals, licenses and authorizations (and all amendments and
supplements thereto) are valid and subsisting and the Company knows of no reason
why any of such approvals, licenses and authorization should be suspended,
canceled or revoked.
4.9 Employment Matters.
(a) Labor Matters. The Company is not a party or otherwise
subject to any collective bargaining or other agreement
governing the wages, hours or terms of employment of its
employees. The Company is and has been in material
compliance with all applicable laws regarding employment
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and employment practices, terms and conditions of
employment, wages and hours and is not and has not been
engaged in any unfair labor practice. There is no existing
or threatened or pending (a) unfair labor practice complaint
against the Company pending before any governmental
authority, (b) labor strike, slowdown or work stoppage
actually occurring or, to the best of the knowledge of
Company and the Seller, threatened against the Company, (c)
grievance or any arbitration proceeding pending arising out
of or under collective bargaining agreements applicable to
the Company. The Company has not experienced any primary
work stoppage or other organized work stoppage involving its
employees in the past two years. The Company has not given
notice of redundancy or retrenchment to any of its employees
or any other person nor has it started consultations with
any governmental agency or any trade or labor union with
regard to redundancy or retrenchment. No circumstances have
arisen under which the Company may be required to pay
damages for wrongful or unfair dismissal or to reinstate or
re-engage any former employee or to make any payment under
any statute dealing with matters relating to employment and
workmen's compensation. The Company is in full compliance
with all such statutes and the contracts of employment of
its employees are likewise in compliance therewith.
(b) Employee Benefits. Seller has provided to Buyer copies of
all pension, retirement, profit sharing, deferred
compensation, bonus, commission, incentive, life insurance,
health and disability insurance, hospitalization and all
other employee benefit plans or arrangements (including,
without limitation, any contracts or agreements with
trustees, insurance companies or others relating to any such
employee benefit plans or arrangements) established or
maintained by the Company, The Company has no obligation of
any kind (whether under the terms of a plan or under any
understanding with employees) to make payments under, or to
pay contributions to, any plan, agreement or other
arrangement for deferred compensation of employees, whether
or not tax qualified, including, without limitation, an
individual employment or compensation agreement or a
commitment to provide medical benefits to retirees. Forms of
employment agreements used by the Company have been provided
to Buyer and there are no material variations from
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those forms among individual employees. All the Company's
employment or supervisory manuals, employment or supervisory
policies and written information generally provided to
employees (such as applications or notices) have been
provided to Buyer. The Company does not have any agreements
or understandings with its employees except as reflected in
the documents provided to Buyer.
(c) Compensation. Schedule 2 contains a complete and accurate
list of all management and other employees and consultants
of the Company as of July 1, 1997, specifying their names
and job designations, the total amount paid or payable as
compensation to each such person, the basis of such
compensation, whether fixed or commission or a combination
thereof, and accrued benefits for such persons as of July 1,
1997. There have been no changes to this list other than
non-material changes in the ordinary course of business.
(d) Other Employee Obligations. The Company and the Sellers are
not aware that any employee of the Company is obligated
under any contract (including any license, covenant or
commitment of any nature), or subject to any judgment,
decree or order of any court or administrative agency, that
would interfere with the use of such employee's best efforts
to promote the interests of the Company.
4.10 Tangible Assets.
(a) Real Property. The Company owns no real property. The
Company leases its manufacturing facility/premises located
in Melaka, Malaysia (the "Real Property").
(b) Personal Property. Schedule 3 includes a complete and
accurate list of all the material tangible personal property
owned by the Company ("Tangible Personal Property"). There
have been no changes to this list other than non- material
changes in the ordinary course of business. To the best of
the Seller's and the Company's knowledge, the Company owns
or leases all of its assets and properties free and clear of
all mortgages, pledges, security interests, claims, charges
or other encumbrances or restrictions of any kind, except
liens for taxes not yet due or being contested in good faith
(and for which adequate accruals or reserves have been
established on the Balance Sheet).
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4.11 Intellectual Property.
(a) Seller has provided to Buyer a complete and accurate list of
the Company's patents, trademarks, trademark registrations,
trade names, service marks, copyrights, trade secrets, know-
how, technology and other intellectual property used in its
business ("Intellectual Property"). Seller has also provided
to Buyer copies of, or written summaries of the material
terms of, all agreements, licenses, permits and other
instruments under which the Company has (a) acquired or been
granted or (b) sold or granted a right to use any
Intellectual Property, together with a brief description of
such Intellectual Property. The Company owns or has the
right to use all of its Intellectual Property with no
conflict with or infringement upon any patents, trademarks,
trade names, copyrights, licenses to the same or other
rights or property of others. The Company and the Seller
reasonably believe that the Intellectual Property owned by
the Company constitutes all of the intellectual property
necessary to the conduct of the Company's business as
presently conducted. The Company holds or has obtained all
necessary export licenses to export its products to those
countries in which it is distributing its products.
(b) Where the Intellectual Property is registered, the Company
is the registered proprietor thereof. The Company has not
entered into any agreements or arrangements with third
parties (including the Seller and affiliated companies)
relating to the Intellectual Property or to the disclosure,
use, assignment or patenting of inventions, discoveries,
improvements, processes, formulae or other know-how, other
than as disclosed to Buyer.
(c) To the best of Seller's and the Company's knowledge, no
third party has any right, title or interest in any
Intellectual Property owned by the Company other than as
disclosed to Buyer. To the best of Seller's and the
Company's knowledge, none of the processes or products of
the Company infringe any right of any other person relating
to intellectual property or involve the unlicensed use of
confidential information disclosed to the Company by any
person in circumstances which might entitle that person to a
claim against the Company and none of the Intellectual
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Property is being used, claimed, opposed or attacked by any
person.
(d) To the best of Seller's and the Company's knowledge, the
Intellectual Property is presently not infringed by any
third party. There are no outstanding claims against the
Company or the Seller for infringement of any Intellectual
Property used (or which has been used) by them and no such
claims have been settled by the giving of any undertakings
which are still in force.
(e) Confidential information and know-how used by the Company is
strictly confidential according to the rules and regulations
containing secrecy clauses adopted by the Company for its
employees and the Company operates and fully complies with
procedures which maintain such confidentiality. The Company
has not breached such confidentiality obligations.
(f) All application and renewal fees, costs and charges relating
to the Intellectual Property have been duly paid on time.
The amounts of remuneration paid to employee inventors are
usual and cannot be increased by unilateral action of the
employee inventors, unless imposed by a court of law.
4.12 Status of Contracts.
(a) General. To the best of the Seller's and the Company's
knowledge, each of the contracts, agreements, commitments
and instruments of the Company (collectively, the
"Contracts") is valid, binding and enforceable by the
Company in accordance with its terms and is in full force
and effect, except as enforceability may be limited by
winding- up, bankruptcy, insolvency, reorganization,
moratorium or other such laws concerning the rights of
creditors. There is no existing default or violation by the
Company under any Contract and no event has occurred which
(whether with or without notice, lapse of time or both)
would constitute a default of the Company under any
Contract. Neither Seller nor the Company is aware of any
default by any other party to any Contract or of any event
which (whether with or without notice, lapse of time or
both) would constitute a default by any other party with
respect to obligations of that party under any Contract,
and, to the knowledge of the Seller
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and the Company, there are no facts that exist indicating
that any of the Contracts may be totally or partially
terminated or suspended by the other parties. The Company is
not a party to, nor is it bound by, any contract or
agreement that: (a) the Company or any Seller can reasonably
foresee will result in any material loss to the Company upon
the performance thereof (including any liability for
penalties or damages, whether liquidated, direct, indirect,
incidental or consequential) and (b) is not terminable by
the Company on 60 or fewer days notice at any time without
penalty.
(b) Credit Arrangements of the Company. All loans and credit
arrangements are fully and properly disclosed in the
Financial Statements. Since June 30, 1997, there have been
no material adverse changes in the Company's credit
arrangements.
(c) Substantial Customers and Suppliers. Seller has no knowledge
or information that any substantial customer or supplier of
the Company has ceased or will cease purchasing or supplying
goods or services as the case may be, or may substantially
reduce its purchases from or sales to the Company or will be
unable to fulfill its obligations under existing agreements.
4.13 Insurance. Schedule 4 includes a complete and accurate list of
all policies and endorsements for fire, liability, worker's compensation and
other forms of insurance insuring the Company, its assets or its operations (the
"Policies") and sets forth the applicable deductible amounts for each of the
Policies. All the Policies are valid, enforceable and in full force and effect,
all premiums with respect to the Policies covering all periods up to and
including the date as of which this representation is being made have been paid
and no notice of cancellation or termination has been received with respect to
any Policy. The Policies are sufficient for compliance with all requirements of
law and of agreements to which the Company is a party. Nothing has been done or
omitted to be done by or on behalf of the Company that would make any policy of
insurance void or voidable or enable the insurers to avoid the same and there is
no claim outstanding under any such policy and the Seller is not aware of any
circumstances likely to give rise to such a claim or result in an increased rate
of premium on their next renewal.
4.14 Taxes and Related Liabilities.
(a) Returns. The Company has (i) filed all tax returns, fiscal
reports, information returns, social security returns and
other documents required to be filed on or prior to the
Closing
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Date in any jurisdiction to which it is or has been subject
(collectively, the "Returns"), (ii) has made timely payment
of all Taxes (as defined below) shown to be due on the
Returns or the relevant tax assessments, (iii) is not
engaged in any disputes with any tax or social security
authorities and (iv) no unexpired waivers by the Company of
any statute of limitation with respect to the Taxes are in
effect. No extensions of time have been requested with
respect to any Returns. All Returns filed are complete and
accurate in all material respects, and no additional Taxes
are owed by the Company with respect to the periods covered
by the Returns. The Company has provided the Buyer with
complete and accurate copies of the Company's Returns
through 1996.
(b) Taxes Paid or Reserved. All deficiencies in Taxes asserted
or assessments made by any taxing authority have been fully
paid or finally settled. The reserves for Taxes reflected in
the Balance Sheet are adequate for payment of Taxes with
respect to the Company in respect of the period ending on or
before the date of the Balance Sheet. All reserves for Taxes
are and will be determined in accordance with generally
accepted accounting principles in Malaysia consistently
applied. All Taxes which the Company has been required to
collect or withhold have been withheld or collected and, to
the extent required, have been paid to the proper taxing
authority.
(c) Definition. "Taxes" means all taxes, charges, fees, levies,
duties, fiscal, social security or other similar charges or
assessments including, without limitation, income, excise,
property, capital, net worth, sales, use, franchise and
payroll taxes, imposed by any country or any state, county
or local government or subdivision or agency thereof, and
including any interest, penalties, administrative fines or
additions with respect thereto.
(d) Cooperation. After the Closing Date, Seller shall, upon
request of Buyer, (i) assist Buyer in the preparation of any
Return for taxes which the Company is responsible for
preparing and filing, (ii) cooperate fully in preparing for
any audits of, or disputes with taxing authorities regarding
any Returns for Taxes of the Company, (iii) make available
to Buyer and to any taxing authority as reasonably
requested, timely access to the information, records and
documents
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relating to Taxes of the Company and (iv) furnish Buyer with
copies of all correspondence from any taxing authority in
connection with any audit or information requested with
respect to any prior taxable period.
4.15 Certain Interests. Seller and Seller's affiliated companies (a)
do not have any interest in any property, real or personal, tangible or
intangible, used in or pertaining to the Company's business, except for the
Company's manufacturing facility/premises in Melaka, Malaysia, which is owned by
LIKOM Computer Systems Sdn Bhd, and (b) are not indebted to the Company. The
Company is not indebted to Seller (or any entity owned or controlled by Seller
or any of Seller's affiliated companies) except for (a) amounts due under normal
salary arrangements and for reimbursement of ordinary business expenses, and (b)
indebtedness listed in Schedule 5 hereof. The consummation of the transactions
contemplated by this Agreement will not (either alone or upon the occurrence of
any act or event, or with the lapse of time, or both) result in any payment
(severance or other) becoming due from the Company to any of the Sellers or any
employees of the Company (or any entity owned or controlled by one or more of
such parties).
4.16 No Restrictions. No contract or agreement to which the Company is
a party or is bound or to which any of its properties or assets is subject
limits the freedom of the Company to compete in any line of business or with any
person.
4.17 Financial Statements. The Company has previously furnished to
Buyer a finally approved balance sheet of the Company as of June 30, 1997 (the
"Balance Sheet") and the related statement of income, shareholders' equity and
cash flows for the period then ended (the "Financial Statements"). The Balance
Sheet discloses and makes provision or reserve for all actual liabilities,
capital or burdensome commitments and all deferred taxation. The book debts
shown in the Balance Sheet have realized or will in aggregate realize the
nominal amount thereof less any provision or reserve for bad or doubtful debts
included in the Balance Sheet. The Financial Statements show a net asset value
of the Company at June 30, 1997 of not less than RM 5.0 million, calculated in
accordance with generally accepted accounting principles in the United States.
The Financial Statements are in conformity with generally accepted accounting
principles in Malaysia consistently applied, and present fairly the financial
position of the Company as of the dates indicated, and the results of operations
for the periods then ended.
4.18 Undisclosed Liabilities. As of June 30, 1997, the Company did not
have any liability or obligation (whether absolute, accrued, contingent or
otherwise, and whether due or to become due) which was not accrued, reserved
against, or disclosed in the Balance Sheet which was required to be accrued,
reserved against or disclosed under generally accepted accounting principles in
Malaysia.
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4.19 Absence of Certain Changes or Events. Since June 30, 1997, there
has not been:
(a) Any change that has resulted, will result or is likely to
result in a material adverse effect or any event,
occurrence, development or state of circumstances or facts
which could reasonably be expected to have a material
adverse effect;
(b) Any direct or indirect declaration, setting aside or payment
of any dividend or other distribution (whether in cash,
property or any combination thereof) in respect of the
Company's shares, or any bonus or rights issue, or any
direct or indirect repurchase, redemption or other
acquisition by the Company of any of its shares, or any
payment by the Company to or for the account of Seller;
(c) Any damage, destruction or casualty loss, whether insured
against or not, to any of Company's assets or properties,
having a material adverse effect on the business of the
Company;
(d) Other than in the ordinary course of business, any increase
in the rate or terms of compensation payable or to become
payable by the Company to its Managing Director or key
employees; any increase in the rate or terms of any bonus,
insurance, pension or other employee benefit plan, payment
or arrangement made to, for or with the Managing Director or
key employees; any special bonus or remuneration paid; or
any written employment contract executed or amended;
(e) Any entry into any agreement, commitment or transaction
(including, without limitation, any borrowing, capital
expenditure or capital financing or any amendment,
modification or termination of any existing agreement,
commitment or transaction) by the Company that is material
to the business, results of operations, financial condition
or prospects of the Company, except agreements, commitments
or transactions in the ordinary course of business and
consistent with good business practice or as expressly
contemplated in this Agreement;
(f) Any change by the Company in accounting methods, principles
or practices;
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(g) Any increase in share capital of the Company or issuance of
any securities convertible into shares or any reorganization
of its capital;
(h) Any grant or sale by the Company of any option or right to
purchase any shares of the Company or to convert any
securities into shares, alter any of the rights attached to
any of the issued shares, or reduce any share capital;
(i) Any conduct of business which is outside the ordinary course
of business;
(j) Any purchase or other acquisition of property, any sale,
lease or other disposition of property, or any expenditure,
except in the ordinary course of business;
(k) Any incurrence of any liability which, either singly or in
the aggregate is material to the business, results of
operations, financial condition or prospects of the Company;
(l) Any charges, mortgages, debentures, liens or other
encumbrance or consent to charges, mortgages, debentures,
liens or other encumbrance of any property or assets except
in the ordinary course of business; or
(m) Any change in the assets, liabilities, licenses, permits or
franchises of the Company, or in any agreement to which the
Company is a party or is bound, which has had or reasonably
could be expected to have a material adverse effect.
4.20 Environmental Conditions.
(a) Compliance. The Company's business and assets, including
without limitation the Real Property, are in compliance with
all applicable Malaysian or other environmental laws,
regulations, administrative orders, technical rules and
industry guidelines regarding environmental protection and
technical safety. All wastes generated in connection with
the Company's business are and have been stored or treated
or transported and disposed of off site in compliance with
all environmental laws.
(b) Hazardous Substances. No substance hazardous to human health
or the environment (including any hazardous, toxic,
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radioactive or infectious substance, material or waste as
defined, listed or regulated under any applicable
environmental law) has been disposed of, spilled, leaked or
otherwise released on, in, under or from the Real Property
or has otherwise come to be located in the soil or water
(including surface and ground water) on or under the Real
Property. None of the Company's assets or the improvements
on the Real Property have incorporated into them any
hazardous substance which is prohibited, restricted or
regulated when present in buildings, structures, fixtures or
equipment. Except as disclosed to Buyer, no hazardous
substance is or has been generated, manufactured, treated,
stored, transported, used or otherwise handled on the Real
Property or in connection with Company's business. There are
no underground storage tanks on the Real Property (whether
or not regulated and whether or not out of service, closed
or decommissioned).
4.21 Books and Records. All accounts, books, ledgers, minute books,
financial and other records, including without limitation the register of
members, records of share issuance and transfers of the Company (the "Records")
(a) have been fully, properly and accurately maintained, (b) are in the
possession of the Company and (c) are kept according to the requirements of law,
generally accepted accounting principles and bookkeeping practice. The Records
do not contain or reflect any material inaccuracies or discrepancies and they
give and reflect a fair view of the matters which ought to appear therein, and
no notice or allegation that any of the records is incorrect or should be
rectified by the Company has been received. All annual or other returns required
to be filed with the relevant Registry of Companies have been properly filed
within any applicable time limit and all legal requirements relating to the
formation of the Company and the issue and transfer of shares and other
securities have been complied with.
4.22 Title to Properties and Assets. The Company has good and
marketable title to all properties and assets reflected on the June 30, 1997
balance sheet, a true and complete copy of which has been provided to Buyer (the
"Balance Sheet"), free and clear of mortgages, pledges, security interests,
liens, claims, restrictions or other encumbrances, other than (i) the lien of
current taxes not yet due and payable, and (ii) possible minor liens and
encumbrances that do not in any case materially detract from the value of the
property subject thereto or materially impair the operations of the Company and
that have not arisen otherwise than in the ordinary course of business. With
respect to the property and assets leased by the Company, the Company is in
compliance in all material respects with such leases and, to the best of
Seller's knowledge, the Company holds valid leasehold interests free and clear
of any liens, claims or encumbrances.
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4.23 No Litigation. There is no arbitration, action, suit, proceeding
or investigation pending, or, to Seller's knowledge, threatened, against the
Company which if adversely determined would, in any single case or in the
aggregate, materially and adversely affect its properties, existence, financial
condition or business.
4.24 No Brokers or Finders. No finder, broker, agent or other
intermediary has acted for or on behalf of Seller or the Company in connection
with the negotiation or consummation of the transactions contemplated hereby.
4.25 Disclosure. No representation, warranty or statement made by
Seller in this Agreement contains any untrue statement of material fact or omits
to state a material fact necessary in order to make the statements contained
herein, in light of the circumstances in which they were made, not misleading.
5. Representations and Warranties of Buyer. Buyer represents and warrants
to Seller as follows:
5.1 Organization of Buyer. Buyer is a corporation duly organized and
validly existing under the laws of the state of Oregon. Buyer has all requisite
corporate power to own and operate its properties and assets and to carry on its
business as presently conducted.
5.2 Authority. Buyer has all requisite corporate power and authority
to purchase the Acquisition Shares, enter into this Agreement and perform its
obligations hereunder. This Agreement has been duly executed and delivered by
Buyer and is a legal, valid and binding obligation of Buyer, enforceable in
accordance with its terms, except as enforcement may be limited by applicable
bankruptcy, insolvency, reorganization, moratorium or similar laws affecting the
enforcement of creditors' rights generally and by equitable remedies.
5.3 No Conflict or Approval. The execution, delivery and performance
of this Agreement by Buyer do not conflict with or result in any breach of any
provision or the creation of any lien or encumbrance upon any of the property of
Buyer pursuant to its charter or bylaws or any law, regulation, order, judgment,
writ, injunction, license, permit, agreement or instrument binding on Buyer, the
noncompliance with which would materially adversely affect the property,
business or financial condition of Buyer. The execution, delivery and
performance by Buyer of this Agreement and the consummation of the transactions
contemplated hereby do not require the approval or consent of, or any filing
with, any third party, including without limitation, any governmental authority
or agency.
5.4 No Brokers or Finders. No finder, broker, agent or other
intermediary has acted for or on behalf of Buyer in connection with the
negotiation or consummation of the transactions contemplated hereby.
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5.5 Disclosure. No representation, warranty or statement made by Buyer
in this Agreement contains any untrue statement of material fact or omits to
state a material fact necessary in order to make the statements contained
herein, in light of the circumstances in which they were made, not misleading.
6. Covenants of Seller.
6.1 Consents. Seller shall obtain prior to the Closing Date all
material licenses, permits, consents, approvals, authorizations, qualifications
and orders of governmental authorities and parties to contracts with Seller or
the Company as may be necessary for consummation of the transactions
contemplated hereby including, without limitation, an extension of time to apply
for the pioneer status certificate for the Company.
6.2 Best Efforts. Seller shall use its best efforts to effectuate the
transactions contemplated by this Agreement and to fulfill all of the conditions
of Seller's obligations under this Agreement.
6.3 Confidentiality. Seller shall hold in confidence, for a period of
five years from the Closing Date, and use its best efforts to have all of its
officers, directors and personnel hold in confidence, all knowledge and
information of a secret or confidential nature with respect to the business of
Buyer, and shall not disclose, publish or make use of the same without the
consent of Buyer, except to the extent that such information shall have become
public knowledge other than by breach of this Agreement by Seller and except to
Seller's lenders, attorneys or accountants having a need to know in order to
perform Seller's obligations under this Agreement or to file tax returns with
respect to the Company's business for periods prior to the Closing Date;
provided that each such person shall be bound to the confidentiality provisions
hereof. Seller agrees that the remedy at law for any breach of this Section 6.3
would be inadequate and that each of Buyer and the Company shall be entitled to
injunctive relief in addition to any other remedy it may have upon breach of any
provision of this Section 6.3.
6.4 Interim Operations. Seller and the Company covenant and agree that
after June 30, 1997 and prior to the Closing (unless Buyer shall otherwise
approve in writing, which approval shall not be unreasonably withheld or
delayed), except as otherwise expressly contemplated by this Agreement:
(a) the Company's business shall be conducted in the ordinary
and usual course and the Company shall use its best efforts
to preserve its business organizations, manufacturing
license, pioneer status and manufacturing warehouse license
intact and maintain its existing relations and goodwill with
customers, suppliers, distributors, creditors, lessors,
employees and business associates;
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(b) the Company shall not (i) issue, sell, pledge, dispose of or
encumber any shares of, or securities convertible into or
exchangeable or exercisable for, or options, warrants,
calls, commitments or rights of any kind to acquire, any
shares of its capital stock of any class or any voting debt
or any other property or assets; (ii) amend its Memorandum
and Articles of Association or by-laws; (iii) split, combine
or reclassify its outstanding shares of capital stock; (iv)
declare, set aside or pay any dividend or make any
distribution payable in cash, stock or property in respect
of any capital stock; or (v) repurchase, redeem or otherwise
acquire any shares of its capital stock or any securities
convertible into or exchangeable or exercisable for any
shares of its capital stock;
(c) the Company shall not, other than in the ordinary and usual
course of business, transfer, lease, license, guarantee,
sell, mortgage, pledge, dispose of or encumber any other
property or assets or incur or modify any material
indebtedness or other liability; (iii) except as disclosed
in budgets provided to the other party hereto prior to the
date hereof, make any commitments for, make or authorize any
capital expenditures other than in the ordinary and usual
course of business and in amounts less than the equivalent
of US $5,000 individually and US $25,000 in the aggregate
or, by any means, make any acquisition of, or investment in,
assets or stock of any other person or entity; or (iv) enter
into any joint venture, merger or other similar agreement
with any person;
(d) the Company shall not terminate, establish, adopt, enter
into, make any new grants or awards under, amend or
otherwise modify, any compensation or benefit plan, or
increase the salary, wage, bonus or other compensation of
any employee except increases occurring in the ordinary and
usual course of business in accordance with established past
practice (which shall include normal periodic performance
reviews and related compensation and benefit increases);
(e) the Company shall not settle or compromise any material
claims or litigation or, except in the ordinary and usual
course of business modify, amend or terminate any of its
material contracts or waive, release or assign any material
rights or claims;
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(f) the Company shall not make any tax election or permit any
insurance policy naming it as a beneficiary or loss-payable
payee to be canceled or terminated except in the ordinary
and usual course of business; and
(g) the Company shall not authorize or enter into an agreement
to do any of the foregoing.
6.5 Status. Seller shall keep Buyer apprised of the status of matters
relating to completion of the transactions contemplated hereby, including
promptly furnishing Buyer with copies of notices or other communications
received by Seller or the Company from any third party and/or any governmental
entity with respect to the transaction contemplated by this Agreement. Seller
shall give prompt notice to Buyer of any change that is reasonably likely to
result in a material adverse effect on the Company or its operations.
6.6 Access. Upon reasonable notice, Seller and the Company shall
afford Buyer, its officers, employees, counsel, accountants and other authorized
representatives ("Representatives") access, during normal business hours
throughout the period prior to the Closing, to the properties, books, contracts
and records of the Company and, during such period, Seller and the Company shall
furnish promptly to Buyer all information concerning the business, properties
and personnel of the Company as may reasonably be requested, provided that no
investigation pursuant to this Section shall affect or be deemed to modify any
representation or warranty made by Seller or the Company, and provided, further,
that the foregoing shall not require Seller or the Company to permit any
inspection, or to disclose any information, that in the reasonable judgment of
the Company would result in the disclosure of any trade secrets of third parties
or violate any of its obligations with respect to confidentiality if the Company
shall have used reasonable efforts to obtain the consent of such third party to
such inspection or disclosure.
6.7 Publicity. Buyer and Seller shall consult with each other prior to
issuing any press releases or otherwise making public announcements with respect
to the transaction contemplated by this Agreement and prior to making any
filings with any third party and/or any Governmental Entity with respect
thereto, except as may be required by law.
6.8 Non-Competition. For as long as it remains a shareholder of the
Company and for a period of five years thereafter, Seller shall not, directly or
through any affiliated entity, engage in any business activity that competes
with any product or service offered by the Company.
6.9 Working Capital Loan. Seller agrees to provide an interest-free
revolving credit loan to the Company, the maximum outstanding amount of which
will be
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RM 5.0 million at any time. Funds shall be provided under this loan for a period
of at least eighteen months from the Closing Date. At the end of this
eighteen-month period, the Seller and Buyer agree that the amount of the loan
then outstanding and unpaid will be converted to equity shares of the company at
their nominal value of RM 1.00 per share, which shall be issued to Seller at
such time. At the time of such conversion, Buyer shall have the right and the
obligation to subscribe to that number of newly issued shares necessary to
maintain its 51% equity in the Company, with such subscription to be made, at
par, to be paid in cash or through contributions in kind in accordance with
Section 7.3 below.
6.10 Management of the Company After the Closing. Seller shall take
such action as may be necessary to ensure that from and after the Closing, Buyer
shall have sole responsibility for overseeing the day-to-day operation and
management of the Company, including (without limitation) the power to employ
and dismiss executive management and personnel, to set levels of compensation
for both, to select suppliers of goods and services, to determine selling prices
for products, to establish operating and capital budgets and plans, to make
elections for tax purposes, to engage or dismiss sales representatives and
distributors, and generally to conclude contracts and commitments in the
ordinary course of business. No business with regard to any matters shall be
transacted at any meeting of the board unless there shall be present a quorum
comprising not less than two (2) directors of whom there shall be at least one
(1) director appointed by Seller and at least one (1) director appointed by
Buyer. No meeting of the members of the Company shall constitute a quorum or be
validly constituted unless there are present at least two (2) members, at least
one of whom shall be a representative of Seller and at least one of whom shall
be a representative of Buyer. Urgent matters requiring board approval may be
decided by unanimous approval of the directors evidenced by a signed circular
resolution. Seller shall render, or cause its affiliated companies to render,
certain essential services to the Company in accordance with a Services
Agreement referred to in Section 8 below.
6.11 Waste Storage on Adjacent Property. Seller will cause the
removal, prior to Closing, of all industrial waste stored on the adjacent
property immediately to the east of the chemical storage building.
7. Covenants of Buyer.
7.1 Best Efforts. Buyer shall use its best efforts to effectuate the
transactions contemplated by this Agreement and to fulfill all of the conditions
of Buyer's obligations under this Agreement.
7.2 Confidentiality. Buyer shall hold in confidence, for a period of
five years from the Closing Date, and use its best efforts to have all of its
officers, directors and personnel hold in confidence, all knowledge and
information of a secret or confidential nature with respect to the business of
Seller and shall not disclose, publish or
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make use of the same without the consent of Seller, except to the extent that
such information shall have become public knowledge other than by breach of this
Agreement by Buyer and except to Buyer's lenders, attorneys or accountants
having a need to know in order to perform Buyer's obligations under this
Agreement; provided that each such person shall be bound to the confidentiality
provisions hereof. Buyer agrees that the remedy at law for any breach of this
Section 7.2 would be inadequate and that Seller shall be entitled to injunctive
relief in addition to any other remedy it may have upon breach of any provision
of this Section 7.2.
7.3 Additional Capital. At the time of conversion of Seller's
revolving credit loan into equity shares in the Company, as contemplated in
Section 6.9 above, Buyer shall have the right and the obligation to subscribe to
that number of newly issued equity shares of the Company, at their nominal value
of RM 1.00 per share, necessary to maintain its 51% equity in the Company. Such
subscriptions may be paid in cash or in kind in the manner described with
respect to the contributions contemplated by Section 2 above. For the purposes
of this Section 7.3, it is agreed that upon the request of at least two members
of the board of directors of the Company, any such contributions in kind may be
valued by an independent appraiser.
7.4 Management of the Company After the Closing. Buyer will second at
least three individuals to perform, at the Company's risk and expense, the
functions and responsibilities of Managing Director, Process Engineer and
Marketing Manager of the Company after the Closing, upon terms to be approved by
the board of directors of the Company.
8. Conditions to Buyer's Obligations. Buyer's obligations to consummate the
transactions contemplated under this Agreement are subject to the fulfillment
(or written waiver), prior to or at the Closing Date, of each of the following
conditions:
8.1 Third-party Consents and Governmental Approvals. Any and all
material consents or approvals required from third parties entities shall have
been obtained, all required filings under applicable laws, regulations and
licenses shall have been made, all necessary approvals shall have been obtained
(including, without limitation, approval by the Registrar of Companies of the
change of the name of the Company, effective as of the Closing, to Praegitzer
Asia Sdn. Bhd.), and any required waiting period under the laws applicable to
the transactions contemplated hereby shall have expired or been earlier
terminated; the Company shall be entitled to the continued benefit after the
Closing of the following incentives and tax holidays: (a) pioneer status; (b)
manufacturing license; and (c) manufacturing warehouse license.
8.2 Representations. All representations and warranties of Seller and
the Company contained herein shall be true on and as of the Closing Date, with
the same force and effect as though made on and (except with respect to the
representations in Section 4.16 above) as of the Closing Date.
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8.3 Performance. Seller and the Company shall have performed all
obligations and agreements, and complied with all covenants and conditions,
contained in this Agreement to be performed or complied with by Seller or the
Company, as the case may be, prior to or at the Closing Date.
8.4 Changes. Between June 30, 1997 and the Closing Date there shall
not have been any material adverse change in the assets, financial condition or
business of the Company.
8.5 Directors. Seller shall have obtained the board resolutions for
the appointment of new directors and the letters of resignation of all current
directors of the Company, without any claim for compensation, effective as of
the Closing Date and shall have delivered evidence thereof satisfactory to
Buyer.
8.6. Other Agreements. The following additional agreements shall have
been executed and delivered by the parties thereto, to take effect as of the
Closing:
(a) Services Agreement. A Services Agreement, substantially in
the form attached as Exhibit A hereto, between the Company
and LION PLASTIC INDUSTRIES SDN. BHD., pertaining to
administrative services;
(b) Lease. A Lease, substantially in the form attached as
Exhibit B hereto, between the Company and LIKOM Computer
Systems Sdn Bhd, for the lease of the Company's
manufacturing facility/premises in Melaka, Malaysia;
(c) Trademark License and Name Use Agreement. A Trademark
License and Name Use Agreement, substantially in the form
attached as Exhibit C hereto, between the Company and Buyer,
as licensor, relating to the use of the name "Praegitzer
Asia"; and
(d) Shareholder Agreement. A Shareholder Agreement,
substantially in the form of Exhibit D hereto, between
Seller and Buyer relating to the transfer and voting of
shares of the Company.
(e) Distribution Agreement. A Distribution Agreement,
substantially in the form attached as Exhibit E hereto,
between the Company and Buyer for the exclusive distribution
by Buyer of the Company's products.
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8.7 The Seller shall have delivered to the Buyer's solicitors as
stakeholders the Completion Resolutions and the letters of resignation referred
to in Section 3.2 above.
8.8 The Memorandum and Articles of Association of the Company shall
have been duly amended as necessary to give effect to the provisions of this
Agreement and the other agreements referred to herein.
8.9 The Board of Directors of Buyer shall have duly approved this
Agreement and the transactions contemplated hereby.
9. Conditions to Seller's Obligations. Seller's obligations to consummate
the transactions contemplated by this Agreement are subject to the fulfillment
(or written waiver), prior to or at the Closing Date, of each of the following
conditions:
9.1 Consents. Any and all material consents or approvals required from
third parties shall have been obtained.
9.2 Representations. All representations and warranties of Buyer
contained herein shall be true on and as of the Closing Date, with the same
force and effect as though such representations and warranties had been made on
and as of the Closing Date.
9.3 Performance. Buyer shall have performed all obligations and
agreements, and complied with all covenants and conditions, contained in this
Agreement to be performed or complied with by Buyer prior to or at the Closing
Date.
9.4 Agreements. Seller shall have executed and delivered the
agreements referred to in Section 8.6 above to which it is a party.
10. Survival and Indemnification.
10.1 Survival. The representations, warranties and covenants of the
parties hereto contained in this Agreement shall survive the execution and
delivery of this Agreement, any investigation by or on behalf of any party, and
the completion of the transactions contemplated hereby.
10.2 Indemnification. Notwithstanding any investigation made by the
parties prior to or after the Closing, Buyer will defend, indemnify and hold
harmless Seller from and against and reimburse Seller with respect to, and
Seller will defend, indemnify and hold harmless Buyer from and against and
reimburse Buyer with respect to, any and all claims, demands, debts,
liabilities, obligations, costs, expenses, damages and losses of any kind or
nature whatsoever (including reasonable attorneys' fees) (collectively, the
"Claims"), incurred by the indemnified party by reason of or arising out
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of or in any way connected with the breach or inaccuracy of any representation
or warranty of the indemnifying party under this Agreement or the nonfulfillment
of any covenant or agreement on the part of the indemnifying party under this
Agreement, subject to the conditions in Section 10.3.
10.3 Conditions. The obligations of any indemnifying party under
Section 10.2 are subject to the conditions in this Section 10.3. Each
indemnifying party shall give each indemnified party prompt notice of any Claim
and full authority to assume control of the defense of such Claim.
10.4 Right of Set-off. Buyer shall have the right, at its option, to
set off any claims for indemnification under this Article 10 against its payment
obligation for additional share subscriptions made by Buyer pursuant to Section
7.3 above.
11. Expenses. Each of Seller and Buyer shall pay its own expenses and costs
incidental to the preparation of this Agreement and to the consummation of the
transactions contemplated hereby.
12. Miscellaneous.
12.1 Entire Agreement. This Agreement (including documents delivered
pursuant hereto) embodies the entire agreement and understanding of the parties
hereto in relation to the subject matter hereof and supersedes any and all prior
understandings, and agreements, whether written or oral, including without
limitation the Confidentiality Agreement between Buyer and the Company executed
in December 1996, and the Letter of Intent between Buyer and Seller executed in
June 1997, in regard to such matters.
12.2 Binding Agreement; Succession. This Agreement shall be binding
upon and shall inure to the benefit of the parties and their respective
successors and permitted assigns. Neither Buyer nor Seller may assign any of its
rights or interest in this Agreement without the express written consent of the
other. Notwithstanding the foregoing, Buyer may designate a subsidiary company
wholly owned by it, to receive and hold the Acquisition Shares in whole or part,
as well as any additional shares in the Company that Buyer has the right or the
obligation to subscribe to or otherwise acquire pursuant to this Agreement. For
this purpose, the term "Buyer" as used in this Agreement shall include the
subsidiary of Buyer designated in accordance with the preceding sentence.
12.3 Waiver. No party shall be deemed to have waived any rights
hereunder or under any other agreement unless such waiver shall be in writing.
No delay or omission on the part of any party in exercising any right shall
operate as a waiver of such right or any other right. A waiver by any party of a
breach of a provision of this Agreement shall not constitute a waiver of or
prejudice the party's right otherwise to demand strict compliance with that
provision or any other provision.
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12.4 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts together
shall constitute one and the same instrument.
12.5 Attorneys' Fees. If any legal action or any arbitration or other
proceeding is brought for the enforcement of this Agreement, or because of any
alleged dispute, breach, default, or misrepresentation in connection with any of
the provisions of this Agreement, the successful or prevailing party or parties
shall be entitled to recover reasonable attorneys' fees and other costs incurred
in connection with that action or proceeding, and in any petition for appeal or
appeals therefrom, in addition to any other relief to which it or they may be
entitled.
12.6 Notices. All notices, requests, demands and other communications
given by Buyer or Seller shall be in writing and shall be deemed to have been
duly given when delivered personally or when deposited into the United States
mail, postage prepaid, as certified or registered mail, to the following
addresses:
If to Buyer:
Praegitzer Industries, Inc.
1270 S.E. Monmouth Cutoff
Dallas, OR 97338-9532
USA
Attention: Matt Bergeron,
Executive Vice President and Chief Operating Officer
With a copy to:
Stoel Rives LLP
900 SW Fifth Avenue
Portland, Oregon 97204
USA
Attention: Stephen E. Babson
If to Seller:
Ributasi Holdings Sdn. Bhd.
Level 46, Menara Lion
165 Jalan Ampang
50450 Kuala Lumpur
Malaysia
Attention: ______________________
or to such other address as Buyer or Seller may designate by notice to the
other.
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12.7 Governing Law. This Agreement shall be interpreted under and
enforced in accordance with the laws of the state of Oregon, exclusive of choice
of law rules.
12.8 Arbitration. All disputes arising out of or in connection with
this Agreement or in respect of any defined legal relationship associated
herewith or derived herefrom shall be referred to and finally resolved by
arbitration under the rules of the British Columbia International Arbitration
Centre. Arbitration shall take place in Vancouver, British Columbia and shall be
conducted in the English language. The case shall be administered by the British
Columbia International Commercial Arbitration Centre in accordance with its
"Procedures for Cases under the BCICAC Rules."
12.9 Further Assurances. From time to time after the Closing Date,
upon the request of any other party, each party will execute, deliver and
acknowledge all such further instruments of transfer and conveyance and do and
perform all such other acts and things as the requesting party may reasonably
require to further the purpose and intent of this Agreement.
IN WITNESS WHEREOF, the parties have signed this Agreement as of the
date first above written.
SELLER: RIBUTASI HOLDINGS SDN. BHD.
By
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BUYER: PRAEGITZER INDUSTRIES, INC.
By
--------------------------------------
COMPANY: LIKOM PCB SDN. BHD.
By
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26
<PAGE>
Schedule 1 - Exceptions to Representations and Warranties Schedule 2 - List of
employees Schedule 3 - List of tangible assets Schedule 4 - List of insurance
policies Schedule 5 - List of obligations to Seller and affiliates
Exhibit A - Services Agreement
Exhibit B - Lease
Exhibit C - Trademark License and Name Use Agreement
Exhibit D - Shareholder Agreement
Exhibit E - Distribution Agreement
27
EXHIBIT 2.2
List of omitted schedules to Stock Purchase Agreement,
dated as of September 24, 1997, between
Praegitzer Industries, Inc. and Likom PCB Sdn. Bhd.
Schedule 1 - Exceptions to Representations and Warranties
Schedule 2 - List of employees
Schedule 3 - List of tangible assets
Schedule 4 - List of insurance policies
Schedule 5 - List of obligations to Seller and affiliates
Exhibit A - Services Agreement
Exhibit B - Lease
Exhibit C - Trademark License and Name Use Agreement
Exhibit D - Shareholder Agreement
Exhibit E - Distribution Agreement
