Exhibit 10.1


	
  

 	
  

 	
  

 
	
 DATED 9 MARCH 2012

 
	
  

 
	
 TOMEN DEVICES CORPORATION

 
	
  

 
	
 and

 
	
  

 
	
 ACL INTERNATIONAL HOLDINGS
 LIMITED

 
	
  

 	
  

 	
  

 
	
  

 	

 


 	
  

 
	
 
SHAREHOLDERS’ AGREEMENT



 
	
  

 	

 


 	
  

 


Deacons
5th Floor

Alexandra House

18 Chater Road

Hong Kong


Fax: 28100431

Tel: 28259211





INDEX


	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Parties

 	
  

 	
  

 	
  

 	
 Page

 
	
  

 	
  

 	
  

 	
  

 	

 


 
	
 Clause No. 

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 l

 	
  

 	
 Interpretation

 	
  

 	
 3

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 2

 	
  

 	
 Organisation
 of the Company

 	
  

 	
 5

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 3

 	
  

 	
 Establishment
 of the PRC Subsidiary

 	
  

 	
 6

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 4

 	
  

 	
 Business of
 the Companies and Contributions of the Parties

 	
  

 	
 7

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 5

 	
  

 	
 Management
 and Administration of the Company

 	
  

 	
 8

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 6

 	
  

 	
 Management
 and Administration of the PRC Subsidiary

 	
  

 	
 9

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 7

 	
  

 	
 Executive Officers

 	
  

 	
 9

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 8

 	
  

 	
 Shareholders’
 Meetings

 	
  

 	
 10

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 9

 	
  

 	
 Accounting
 and Books of Account

 	
  

 	
 10

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 10

 	
  

 	
 Finance

 	
  

 	
 11

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 11

 	
  

 	
 Dividend
 Policy

 	
  

 	
 11

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 12

 	
  

 	
 Restrictions
 and Undertakings

 	
  

 	
 11

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 13

 	
  

 	
 Confidentiality
 and Announcements

 	
  

 	
 12

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 14

 	
  

 	
 Termination

 	
  

 	
 12

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 15

 	
  

 	
 Termination
 Notice

 	
  

 	
 14

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 16

 	
  

 	
 Special Liabilities of the Shareholders

 	
  

 	
 14

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 17

 	
  

 	
 Indemnity

 	
  

 	
 15

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 18

 	
  

 	
 Transfer of
 Shares and No Security

 	
  

 	
 15

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 19

 	
  

 	
 General

 	
  

 	
 17

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 20

 	
  

 	
 Notices

 	
  

 	
 17

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 21

 	
  

 	
 Agreement to
 prevail

 	
  

 	
 18

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 22

 	
  

 	
 Counterparts

 	
  

 	
 18

 	
  

 


1









	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 23

 	
  

 	
 Legal Expenses

 	
  

 	
 18

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
  

 	
 24

 	
  

 	
 Governing
 Law and Jurisdiction

 	
  

 	
 18

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Appendix
 “A”: proposed Articles of Association of the Company

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 	
  

 
	
 Appendix
 “B”: Authorisation Table

 	
  

 	
  

 	
  

 


2





SHAREHOLDERS’
AGREEMENT


DATED
9 March 2012 


PARTIES


	
  

 	
  

 	
  

 	
  

 
	
 (l)

 	
 TOMEN DEVICES CORPORATION,
 a company incorporated in Japan, the registered office of which is at 8-12,
 Harumi 1-chome, Chuo-ku, Tokyo, Japan (“Tomen”);

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 and

 
	
  

 	
  

 	
  

 	
  

 
	
 (2)

 	
 ACL INTERNATIONAL HOLDINGS
 LIMITED, a company incorporated in Hong Kong, the registered
 office of which is at Room 1701, 17/F., Tower 1, Enterprise Square, 9 Sheung
 Yuet Road, Kowloon Bay, Kowloon, Hong Kong (“ACL”).

 
	
  

 	
  

 	
  

 	
  

 
	
 (hereinafter individually a “Party” and collectively the “Parties”).

 
	
  

 	
  

 	
  

 	
  

 
	
 RECITALS

 
	
  

 	
  

 	
  

 	
  

 
	
 (A)

 	
 Tomen has been one of the authorised
 distributors of Samsung Japan Corporation (“SJC”) in Japan (which is
 also one of Tomen’s shareholders as at the date of this Agreement) with
 regard to certain semi-conductors and electronics parts manufactured by
 Samsung group. 

 
	
  

 	
  

 	
  

 	
  

 
	
 (B)

 	
 ACL’s subsidiary Atlantic
 Components Limited (“Atlantic”) has been one of the authorised
 distributors of Samsung Electronics Co., Ltd. (“SECC”) in Hong Kong and
 Shenzhen, China with regard to similar products manufactured by Samsung
 group. 

 
	
  

 	
  

 	
  

 	
  

 
	
 (C)

 	
 SECC now wishes to strengthen
 its distribution network in Hong Kong, Macau and China and ACL wishes Tomen
 to join it in such distributorship business in Hong Kong, Macau and China and
 Tomen desires to do so.

 
	
  

 	
  

 	
  

 	
  

 
	
 (D)

 	
 Tomen and ACL wish to
 establish a joint venture by establishing and operating a company in Hong
 Kong and establishing its wholly owned subsidiary in Shenzhen, China for the
 above purpose upon the terms set out in this Agreement.

 
	
  

 	
  

 	
  

 	
  

 
	
 PROVISIONS

 
	
  

 	
  

 	
  

 	
  

 
	
 1.

 	
 INTERPRETATION

 
	
  

 	
  

 	
  

 	
  

 
	
 1.1

 	
 In this Agreement including the Recitals the following expressions
 shall have the following meanings except where the context otherwise
 requires:-

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Authorisation
 Table”

 
	
  

 	
  

 	
 the Authorisation Table referred to in Clause 7.2, the current one of
 which as

 


3









	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 at the date of this Agreement is attached in Appendix “B”;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Articles of
 Association”

 
	
  

 	
  

 	
 the Articles of Association of the Company adopted or altered as the
 case may by pursuant to Clause 2.1(d);

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Board”

 
	
  

 	
  

 	
 the Board of Directors of the Company;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Business”

 
	
  

 	
  

 	
 the business of the Company referred to in Clause 4.1;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “China”

 
	
  

 	
  

 	
 the People’s Republic of China excluding Hong Kong, Macau and Taiwan;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Companies”

 
	
  

 	
  

 	
 the Company and the PRC Subsidiary;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Company”

 
	
  

 	
  

 	
 a company to be established in accordance with Clause 2.1, the
 intended name of which is “ATMD (Hong Kong) Ltd.”;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Directors”

 
	
  

 	
  

 	
 the directors of the Company (and “Director” shall be
 construed accordingly);

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Encumbrance”

 
	
  

 	
  

 	
 a mortgage, charge, pledge, lien, option, restriction, hypothecation,
 assignment, right to acquire or of pre-emption, third-party right or
 interest, other encumbrance, priority or security interest of any kind, or
 any other type of preferential arrangement (including, without limitation, a
 title transfer or retention arrangement) having similar effect, and any
 agreement or obligation to create or grant any of the aforesaid;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Hong Kong”

 
	
  

 	
  

 	
 Hong Kong Special Administrative Region of the People’s Republic of
 China;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Macau”

 
	
  

 	
  

 	
 Macau Special Administrative Region of the People’s Republic of
 China;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Notice of
 Termination”

 
	
  

 	
  

 	
 a notice of termination to be served by a Party in accordance with
 Clause 14.1;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “PRC Subsidiary”

 
	
  

 	
  

 	
 a wholly owned foreign enterprise wholly owned by the Company to be
 established in Shenzhen in accordance with the terms of this Agreement;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Products”

 
	
  

 	
  

 	
 Semi-conductors and electronics parts manufactured by Samsung group
 and/or any other products that the meeting of the Board may decide that the
 Companies are to sell in the Territory from time to time, as provided in
 Clause 4.1;

 


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  “Shares” or “Share”

 
	
  

 	
  

 	
 the issued shares from time to time in the capital of the Company or
 any one of them;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Shareholder”

 
	
  

 	
  

 	
 Tomen and ACL or either of them and, where the context permits, any
 holder(s) or transferee(s) of Shares; and

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
  “Territory”

 
	
  

 	
  

 	
 China, Hong Kong and Macau.

 
	
  

 	
  

 	
  

 	
  

 
	
 1.2

 	
 For the purposes of Clauses 15
 and 18, the following expressions shall have the following meanings:

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “Net Asset Value”

 
	
  

 	
  

 	
 the net asset value (stated as
 a price per Share) as conclusively reported by the Referee (acting as an
 expert and not as an arbitrator and whose costs shall be borne by the
 Company) by reference to the latest audited balance sheets but without taking
 into account goodwill;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 “Referee”

 
	
  

 	
  

 	
 the Auditors or if they are
 unable or unwilling to act such other firm of certified public accountants in
 Hong Kong qualified to act as auditors of the Company agreed between the
 Parties, failing which such firm of certified public accountants as the
 President for the time being of the Hong Kong Society of Accounts may select
 on the application of the Directors;

 
	
  

 	
  

 	
  

 	
  

 
	
 1.3

 	
 References to Clauses are references to clauses or sub-clauses of
 this Agreement.

 
	
  

 	
  

 	
  

 	
  

 
	
 1.4

 	
 Headings are for ease of reference only and do not form part of this
 Agreement.

 
	
  

 	
  

 	
  

 	
  

 
	
 1.5

 	
 The Appendices form part of this Agreement.

 
	
  

 	
  

 	
  

 	
  

 
	
 1.6

 	
 Reference to any Ordinance, regulation or other statutory provision
 includes reference to such Ordinance or regulation or provision as modified
 codified or re-enacted.

 
	
  

 	
  

 	
  

 	
  

 
	
 2.

 	
 ORGANISATION OF THE COMPANY

 
	
  

 	
  

 	
  

 	
  

 
	
 2.1

 	
 As soon as practicable after execution of this Agreement each of the
 Parties shall or cause to take the following steps:-

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 the establishment of the Company in Hong Kong (to be called “ATMD (Hong
 Kong) Ltd.” or such other name as the Parties may agree) with an
 authorised share capital of US$10,000,000 divided into 10,000,000 ordinary
 shares of US$1.00 each; 

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 the subscription by Tomen for 7,000,000 ordinary shares of US$1.00
 each in the Company at par and the allotment and issue of such shares by the
 Company to Tomen against payment in full in cash and the entry of Tomen 

 


5









	
  

 	
  

 	
  

 	
  

 
	
  

 	
  

 	
 into the register of members in the books of the Company;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (c)

 	
 the subscription by ACL for 3,000,000 ordinary shares of US$1.00 each
 in the Company at par and the allotment and issue of such shares by the
 Company to ACL against payment in full in cash and the entry of ACL into the
 register of members in the books of the Company;

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (d)

 	
 the adoption by the Company of the Articles of Association reflecting
 the terms of this Agreement or the alteration by the Company of the Articles
 of the Association reflecting the terms of this Agreement if the Articles of
 Association do not reflect them as at the date hereof, as the case may be and
 in either event, in the form of Appendix “A”, which for the purpose of
 identification has been signed on behalf of the Parties; and

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (e)

 	
 the holding of the first Board meeting of the Company to resolve the
 appointment of additional and/or new Directors. 

 
	
  

 	
  

 	
  

 	
  

 
	
 2.2

 	
 The auditors of the Company shall be PricewaterhouseCoopers or such
 other accounting firm as may be appointed by the Company from time to time (“Auditors”).

 
	
  

 	
  

 	
  

 	
  

 
	
 2.3

 	
 The financial year end shall be from 1 April and 31 March in each
 year or such other period as the Board may from time to time determine.

 
	
  

 	
  

 	
  

 	
  

 
	
 2.4

 	
 The registered office of the Company shall be at Room 1701, 17/F.,
 Tower 1, Enterprise Square, 9 Sheung Yuet Road, Kowloon Bay, Kowloon, Hong
 Kong or as otherwise determined by the Board.

 
	
  

 	
  

 	
  

 	
  

 
	
 2.5

 	
 The Secretary of the Company shall be PYCO Limited or as otherwise
 determined by the Board from time to time.

 
	
  

 	
  

 	
  

 	
  

 
	
 2.6

 	
 If either Party fails to subscribe for the relevant shares in the
 Company in full in cash in accordance with Clause 2.1 above within 30 days of
 the date of the Certificate of Incorporation of the Company or any other
 later date that the Parties may agree, this Agreement shall automatically
 terminate forthwith. 

 
	
  

 	
  

 	
  

 	
  

 
	
 2.7

 	
 The number of Shares held by Tomen and the number of Shares held by
 ACL shall at all times be in the proportion of 7:3.

 
	
  

 	
  

 	
  

 	
  

 
	
 2.8

 	
 All future issues of Shares shall be simultaneously subscribed for in
 cash by Tomen and ACL in the proportion of 7:3.

 
	
  

 	
  

 	
  

 	
  

 
	
 3.

 	
 ESTABLISHMENT OF
 THE PRC SUBSIDIARY

 
	
  

 	
  

 	
  

 	
  

 
	
 3.1

 	
 The Parties shall procure that the Company shall establish the PRC
 Subsidiary as soon as practicable after the incorporation of the Company.

 
	
  

 	
  

 	
  

 	
  

 
	
 3.2

 	
 The Parties shall procure that the PRC Subsidiary shall establish
 branch offices in Beijing and Shanghai and other places in China as soon as
 practicable as the Parties may agree from time to time. The PRC Subsidiary
 shall include such branch offices 

 


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 for the purpose of this Agreement unless otherwise specifically
 provided herein.

 
	
  

 	
  

 	
  

 	
  

 
	
 4.

 	
 BUSINESS OF THE
 COMPANIES AND CONTRIBUTIONS OF THE PARTIES

 
	
  

 	
  

 	
  

 	
  

 
	
 4.1

 	
 The business of the Companies shall be to carry on the business of
 purchasing semi-conductors and electronics parts from SECC and selling them
 onto customers in the Territory as a SECC’s distributor. The Companies may
 also purchase other products from other supplier(s) including SJC and sell
 them in the Territory as the Board may decide from time to time. 

 
	
  

 	
  

 	
  

 	
  

 
	
 4.2

 	
 ACL shall procure Atlantic integrate its entire business relating to
 purchasing semi-conductors and electronics parts from SECC and selling them
 onto customers in Hong Kong and Shenzhen as a SECC’s distributor with that of
 the Company by transferring all of its business (including its customers but
 excluding employees) to the Company for no consideration with effect from 1
 April 2012 (provided that any outstanding contracts with customers as at the
 date of such transfer will not be transferred to the Company and remain with
 Atlantic), failing which Tomen shall be entitled to terminate this Agreement
 forthwith by serving a Notice of Termination on ACL. 

 
	
  

 	
  

 	
  

 	
  

 
	
 4.3

 	
 Tomen shall transfer some or all of its non-Japanese customers as it
 thinks appropriate and those agreed by ACL to the Company with effect from 1
 April 2012 (provided that any outstanding contracts with such non-Japanese
 customers as at the date of such transfer will not be transferred to the
 Company and remain with Tomen), failing which ACL shall be entitled to
 terminate this Agreement forthwith by serving a Notice of Termination on
 Tomen.

 
	
  

 	
  

 	
  

 	
  

 
	
 4.4

 	
 During the continuance in force of this Agreement:-

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (a)

 	
 Tomen shall be responsible for arranging finance for the Companies as
 and when necessary in accordance with Clause 10.

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 (b)

 	
 ACL shall be responsible for promoting the sale of the Products and
 developing new customers for the Companies in the Territory. 

 
	
  

 	
  

 	
  

 	
  

 
	
 4.5

 	
 The Parties hereby acknowledge and agree that subject to the terms of
 this Agreement, neither of them shall be entitled to any fee, charge or other
 payment, compensation or reimbursement in connection with the provision of
 services or other assistance to the Companies except that subject to the
 Board approval, fees shall be payable by the Company or the PRC Subsidiary as
 the case may be to any executive Director(s) who takes care of the Companies’
 day to day operation on a full time basis.

 
	
  

 	
  

 	
  

 	
  

 
	
 4.6

 	
 The Parties shall use their best endeavours to promote and extend the
 operation of the Company and the Business. The Parties shall consider the
 possibility of an initial public offering of shares in the Company on any
 appropriate stock exchange when the Company’s financial situation reaches the
 position where it may be able to satisfy the relevant listing criteria. In
 making the decision on such initial public offering the Parties shall take
 into account the merit of doing so from the Company’s perspective as well as
 from the Shareholders’ interest perspective. 

 


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 5.

 	
 MANAGEMENT AND ADMINISTRATION OF THE
 COMPANY

 
	
  

 	
  

 	
  

 	
  

 
	
 5.1

 	
 The business of the Company shall be managed by the Board. 

 
	
  

 	
  

 	
  

 	
  

 
	
 5.2

 	
 Except as otherwise provided herein, at any meeting of the Board,
 each Director shall have one vote, and all decisions of the Board shall be by
 a majority vote cast.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.3

 	
 The maximum number of Directors shall be 7. Tomen shall have the
 right to appoint up to 5 Directors and ACL shall have the right to appoint up
 to 2 Directors. 

 
	
  

 	
  

 	
  

 	
  

 
	
 5.4

 	
 The Parties shall procure the appointment as Directors of the
 appropriate persons as soon as practicable after establishment of the
 Company.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.5

 	
 Tomen may, by written notice to the Company, remove any person it
 nominated as Director and appoint another person to be a Director in his
 stead.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.6

 	
 ACL may, by written notice to the Company, remove any person
 nominated by it as Director and appoint another person to be a Director in
 his stead.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.7

 	
 A Shareholder removing a Director shall be responsible for and shall
 indemnify the other Shareholder against any claim of whatever nature arising
 out of such removal. If a Shareholder ceases to hold any Shares, it shall
 procure the resignation of all the Director(s) appointed by it and shall
 indemnify the other Shareholder against any claims which may be brought by
 such Director(s).

 
	
  

 	
  

 	
  

 	
  

 
	
 5.8

 	
 Each of the Shareholders agrees to immediately remove any person
 nominated by it as a Director who is convicted of any criminal offence (wherever
 committed) involving dishonesty or who is otherwise disqualified as a Director
 pursuant to the Articles of Association. 

 
	
  

 	
  

 	
  

 	
  

 
	
 5.9

 	
 Each Director shall be entitled to appoint one alternate (who need
 not be a Director) and each alternate shall have one vote for every Director
 whom he/she represents in addition to any vote of his/her own if he or she
 were a Director or a duly appointed alternate of another Director.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.10

 	
 The Chairman of the Board shall be appointed by Tomen and shall be
 entitled to a second or casting vote.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.11

 	
 The quorum for meetings of the Board (or any committee thereof) shall
 be three Directors or their nominated alternates present at the commencement and throughout
 the whole of the meeting provided that at least one Director appointed
 by each of Tomen and ACL are present. If within half an hour from the time
 appointed for a Board meeting a quorum is not present, the meeting shall be
 adjourned to such time and place as the chairman of the Board may determine
 or failing which, to the same day of the next week at the same time and place. At the adjourned meeting any two Directors
 present shall be a quorum. 

 
	
  

 	
  

 	
  

 	
  

 
	
 5.12

 	
 Meetings of the Board (or any committee thereof) shall be held in
 Hong Kong or such other places and at such times as the Board (or any
 committee thereof) shall determine. 

 


8









	
  

 	
  

 	
  

 	
  

 
	
  

 	
 Not less than seven (7) days’ notice (or such other period of notice
 as may be agreed from time to time by all the Directors) of each meeting of
 the Board (or any committee thereof) specifying the date, time and place of
 the meeting and the business to be transacted thereat shall be given to all
 Directors and alternate Directors provided that if Directors who would
 constitute a quorum at any meeting agree to a shorter period of notice then
 such meeting shall be deemed to be properly called.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.13

 	
 Directors may participate in Board meetings by means of conference
 telephone or similar communications equipment whereby all persons
 participating in the meeting can hear each other and such participation shall
 constitute presence in person.

 
	
  

 	
  

 	
  

 	
  

 
	
 5.14

 	
 Resolutions of the Board may be passed by written resolutions signed
 by all Directors.

 
	
  

 	
  

 	
  

 	
  

 
	
 6.

 	
 MANAGEMENT AND
 ADMINISTRATION OF THE PRC SUBSIDIARY

 
	
  

 	
  

 	
  

 	
  

 
	
  

 	
 The provisions of Clause 5 above shall also apply to the management
 and administration of the PRC Subsidiary to the extent that is practicable.
 Any matters that are related to the management and administration of the PRC
 Subsidiary and that are not provided for in this Agreement shall be decided
 by the Board.

 
	
  

 	
  

 	
  

 	
  

 
	
 7.

 	
 EXECUTIVE OFFICERS

 
	
  

 	
  

 	
  

 	
  

 
	
 7.1

 	
 The Company shall have two
 executive officers, namely one of the Directors shall be appointed as “Chief
 Executive Officer/CEO” of the Company (“CEO”) from time to time and one of the
 Directors (who is not the CEO) shall be appointed as “Chief Financial Officer
 (“CFO”)
 of the Company from time to time. ACL shall be entitled to appoint a person from
 Directors nominated by it to be CEO of the Company from time to time and
 Tomen shall be entitled to appoint a person from Directors nominated by it to
 be CFO of the Company from time to time. 

 
	
  

 	
  

 	
  

 	
  

 
	
 7.2

 	
 ACL agrees and acknowledges
 that the running and operation of the Companies shall be subject to the
 authorisation table designated by Tomen from time to time, the current one of
 which as at the date of this Agreement is attached in Appendix “B” (the “Authorisation
 Table”). The Parties shall procure (i) that the Board/CEO/CFO
 shall comply with the Authorisation Table when discharging their duties; (ii)
 that the Board/CEO/CFO as the case may be shall submit the relevant proposal
 to the relevant personnel at Tomen or the board of Tomen as the case may be
 before making any decision; and (iii) that the Board/CEO/CFO shall comply
 with any reasonable suggestion made by Tomen.

 
	
  

 	
  

 	
  

 	
  

 
	
 7.3

 	
 The Directors appointed as CEO
 and CFO shall be obliged to provide the Board with any information with
 regard to anything they do on behalf of the Company and to take any action as
 instructed by the Board, once such request has been made by the Board. 

 
	
  

 	
  

 	
  

 	
  

 
	
 7.4

 	
 The Parties shall procure that
 each of the Directors appointed as CEO and CFO shall enter into a service
 agreement with the Company to ensure that they will comply with the
 provisions of this Clause.

 


9









	
 

	
 


	
8.

	
SHAREHOLDERS’ MEETINGS


	
 

	
 


	
8.1

	
The quorum for meetings of the Shareholders shall be two (2). 


	
 

	
 


	
8.2

	
The voting shall be by poll.


	
 

	
 


	
8.3

	
Unless otherwise agreed by all the Shareholders, all Shareholders’
meetings will be held in Hong Kong.


	
 

	
 


	
8.4

	
At least 14 days’ written notice of each Shareholders’ meeting must
be given to each Shareholder specifying the date, time and place of the
meeting and the business to be transacted thereat provided that if all the
Shareholders agree to a shorter period of notice, then such meeting shall be
deemed to be properly called. 


	
 

	
 


	
8.5

	
Shareholders’ resolutions may be passed by written resolutions signed
by all Shareholders. 


	
 

	
 


	
8.6

	
If within 30 minutes of the time fixed for any general meeting of the
Company a quorum is not present, the meeting shall be adjourned for two weeks
to the same time and place and if a quorum is not present at such adjourned
meeting the quorum shall be deemed to have been satisfied with any
Shareholder present at the adjourned meeting, and any resolutions passed at
such adjourned meeting shall be deemed to be validly made.


	
 

	
 


	
9.

	
ACCOUNTING AND BOOKS OF ACCOUNT  


	
 

	
 


	
9.1

	
The Parties shall procure that
the Company shall keep true and accurate books of account and financial and
related records in accordance with the Hong Kong generally accepted
accounting principles (“HKGAAP”).


	
 

	
 


	
9.2

	
At the end of each financial year, the books of account and records
of the Company shall be audited, at the expense of the Company, by the Auditors. 


	
 

	
 


	
9.3

	
Within twenty (20) days after
the end of each half of the Company’s financial year, the Shareholders shall
cause the Company to submit, at the Company’s own costs, to each of the
Shareholders an unaudited interim management accounts on the Company’s financial
position (consolidated as well as unconsolidated if the Company has any
subsidiaries and is required by HKGAAP to prepare consolidated accounts) in
respect of such period.


	
 

	
 


	
9.4

	
Within six weeks after the end
of each financial year of the Company, the Shareholders shall cause the
Company to submit, at the Company’s own costs, to each of the Shareholders
the annual business plan and the unaudited management accounts on the
Company’s financial position (consolidated as well as unconsolidated if the
Company has any subsidiaries and is required by HKGAAP to prepare
consolidated accounts) in respect of such period. 


	
 

	
 


	
9.5

	
Within ten weeks after the end
of each financial year of the Company, the Shareholders shall cause the
Company to submit, at the Company’s own costs, to each of the Shareholders
draft accounts for the Company (consolidated as well as 





10









	
 

	
 

	
 


	
 

	
unconsolidated if the Company
is required by HKGAAP to prepare consolidated accounts) and for the PRC
Subsidiary as at the end of and for that period (the audited accounts for
each financial year to be completed within six months of the end of the
financial year), such accounts to include a detailed profit and loss account,
balance sheet and cash flow statement, and movements on shareholders’ funds (in
each case) with comparative figures for the preceding financial year, if
applicable), to be prepared in accordance with the HKGAAP.


	
 

	
 


	
10.

	
FINANCE


	
 

	
 


	
10.1

	
If, in order to obtain borrowings for the Company (or the PRC
Subsidiary as the case may be) on terms acceptable to the Company, it is
necessary for such borrowings to be wholly or partially guaranteed, Tomen may
(but is not obliged to) guarantee such borrowings provided that the Company
(or the PRC Subsidiary) shall pay a fee acceptable to Tomen for providing
such guarantee.


	
 

	
 


	
10.2

	
The Shareholders shall not be obliged to make loans to the Companies.


	
 

	
 


	
11.

	
DIVIDEND POLICY 


	
 

	
 


	
 

	
Subject to the relevant laws and accounting requirements, profits of
the Company will be distributed to the Shareholders by way of dividend
provided that the Company has sufficient financial resources available in
order to meet its normal working capital requirements, in particular, for the
first three years of its commencement of the business.


	
 

	
 


	
12.

	
RESTRICTIONS AND UNDERTAKINGS


	
 

	
 


	
12.1

	
While both Shareholders are beneficially interested in any Share,
each of them undertakes to the other that it will not directly or indirectly
within the Territory:


	
 

	
 

	
 


	
 

	
(a)

	
carry on or be engaged or interested (except as the holder for
investment of securities dealt in on a recognised stock exchange) in any
business dealing with the existing suppliers of the Company competing with
the Business;


	
 

	
 

	
 


	
 

	
(b)

	
solicit or entice away, or attempt to solicit or entice away, the
customer or any person who is or was within the previous one year a customer
of the Business for the purpose of offering to such customer goods or
services similar to or competing with those of the Business; or 


	
 

	
 

	
 


	
 

	
(c)

	
solicit or entice away or endeavour to solicit or entice away any
Director or employee of the Companies, but without prejudice to the right of
such Shareholder to terminate arrangements under which any of its staff are
seconded to the Company or the PRC Subsidiary;


	
 

	
 

	
 


	
 

	
provided that nothing herein shall preclude or restrict either
Shareholder from:


	
 

	
 

	
 


	
 

	
(i)

	
carrying on any activity carried on by it during the period of 12
months





11









	
 

	
 

	
 

	
 


	
 

	
 

	
immediately preceding the date of this Agreement; or


	
 

	
 

	
 


	
 

	
(ii)

	
offering any service or goods similar to those previously supplied as
part of the Business but subsequently discontinued and not supplied by the
Company and/or the PRC Subsidiary at the time when such similar service or
goods are offered. 


	
 

	
 

	
 


	
13.

	
CONFIDENTIALITY AND ANNOUNCEMENTS


	
 

	
 

	
 


	
13.1

	
Save as required by any
applicable law, no Party shall disclose or communicate to any person (other
than those with proper authority of the Company or the PRC Subsidiary for the
purpose of a Party obtaining legal or other professional advice) or use or
exploit for any purpose whatever knowledge or information
concerning the business, finance or affairs relating to the other Party or
the Company or the PRC Subsidiary or of any of their customers, clients or
suppliers which the
relevant Party may receive or acquire as a result of entering into this
Agreement or its holding Shares, and each Party shall use all reasonable
endeavours to prevent its officers and employees and any person under its
direct or indirect control from so acting provided that Tomen may share such
information with its group companies. This restriction shall continue to
apply after the expiration or termination of this Agreement or such Party
ceasing to be a Shareholder without limit in point of time, but shall cease
to apply to information or knowledge which may properly come into the public
domain through no fault of the Party so restricted and provided that a Party
shall be released from the above confidentiality obligations with regard to
the Companies if it purchases the other Party’s Shares pursuant to the terms
of this Agreement.


	
 

	
 

	
 


	
13.2

	
No public announcement or
communication other than required by the relevant stock exchange and if so to
the extent required by such stock exchange concerning this Agreement shall be
made or despatched without the consent of the other Party.


	
 

	
 

	
 


	
13.3

	
ACL shall ensure that Atlantic
shall comply with the provisions of 13.1 and 13.2 above.


	
 

	
 

	
 


	
14.

	
TERMINATION


	
 

	
 

	
 


	
14.1

	
The Parties may terminate this
Agreement forthwith by serving a Notice of Termination in the following
circumstances and in such event Clause 15 shall apply.


	
 

	
 

	
 


	
 

	
(a)

	
Either Party may serve a
Notice of Termination on the other at any time after the occurrence of any of
the following events:


	
 

	
 

	
 

	
 


	
 

	
 

	
(i)

	
a distress or execution or
other legal process is levied or enforced upon or against any material part
of the property, assets or revenues of the Company or the PRC Subsidiary or
the other Party;


	
 

	
 

	
 

	
 


	
 

	
 

	
(ii)

	
an encumbrancer takes
possession of, or a liquidator, administrator, receiver, manager or other similar
officer is appointed of, the whole or any material part of the undertaking,
property, assets or revenues of the Company or the PRC Subsidiary or the
other Party;





12









	
 

	
 

	
 

	
 


	
 

	
 

	
(iii)

	
the Company or the PRC
Subsidiary or the other Party becomes insolvent or is unable to pay its debts
as they fall due within Section 178 of the Companies Ordinance; or takes any
proceeding under any law for a readjustment or deferment of its obligations
or any material part of them or makes or enters into a general assignment or
an arrangement or composition with or for the benefit of its creditors or
ceases or proposes to cease to carry on its business or any material part of
its business;


	
 

	
 

	
 

	
 


	
 

	
 

	
(iv)

	
an order is made or an
effective resolution passed for winding-up the Company or the PRC Subsidiary
or the other Party or it is otherwise dissolved other than for the purposes
of amalgamation or reconstruction with prior approval of the Party serving a
Notice of Termination;


	
 

	
 

	
 

	
 


	
 

	
 

	
(v)

	
proceedings shall have been
initiated against the Company, the PRC Subsidiary or the other Party under
any applicable bankruptcy, insolvency or reorganization law and such
proceedings shall not have been discharged within a period of 14 days of
initiation; 


	
 

	
 

	
 

	
 


	
 

	
 

	
(vi)

	
any event occurs which under
the laws of any country has an analogous effect to any of the events referred
to above; 


	
 

	
 

	
 

	
 


	
 

	
 

	
(vii)

	
the Products cease to be
available to the Companies for any reason;


	
 

	
 

	
 

	
 


	
 

	
 

	
(viii)

	
the profitability of the
business of the Company and/or the PRC Subsidiary is not satisfactory in the
opinion of either Party provided that a Party may not terminate this
Agreement based on this ground on or before the third anniversary of this
Agreement;


	
 

	
 

	
 

	
 


	
 

	
 

	
(ix)

	
any of the events set out in Clause 14.2 occurs; or


	
 

	
 

	
 

	
 


	
 

	
 

	
(x)

	
pursuant to Clause 4.2 or 4.3.


	
 

	
 

	
 

	
 


	
 

	
(b)

	
A Party may serve a Notice of
Termination on the other Party, if the other Party:


	
 

	
 

	
 

	
 


	
 

	
 

	
(i)

	
is in material breach of its obligations
hereunder; or


	
 

	
 

	
 

	
 


	
 

	
 

	
(ii)

	
persistently commits breaches
of its obligations hereunder which are not themselves material.


	
 

	
 

	
 

	
 


	
14.2

	
In the event that either of the Parties in good faith shall consider
that, as a result of disagreement between them whatsoever (including a
Party’s breach or possible breach of any terms of this Agreement), no
satisfactory resolution of material points can be achieved, then such Party
may serve upon the other a Notice of Termination. 


	
 

	
 

	
 

	
 


	
14.3

	
This Agreement shall terminate and all rights and obligations of the
Parties shall cease to have effect forthwith upon a Notice of Termination
being served on a Party by the other Party, save that such termination shall
be without prejudice to the accrued rights and liabilities of the Parties
hereunder and without prejudice to the continued 





13









	
 

	
 

	
 

	
 


	
 

	
existence and validity of their respective rights and obligations
under Clauses 13, 16 and 17 and any provisions of this Agreement necessary
for the interpretation or enforcement thereof.


	
 

	
 

	
 

	
 


	
14.4

	
This Agreement shall terminate in relation to any Party after such
Party has ceased to be a Shareholder of the Company.


	
 

	
 

	
 

	
 


	
15.

	
TERMINATION NOTICE


	
 

	
 

	
 

	
 


	
15.1

	
If either Party is to serve a Notice of Termination for any reason it
shall be entitled the serving Party either to offer to sell its entire Shares
(and not only part) in the Company to the other Party or to offer to purchase
the other Party’s Shares. The Parties shall as soon as possible and in any
event within 30 days of the date of such Notice of Termination procure that
the Referee shall certify to the Board in writing the Net Asset Value (the “Certified
Price” for the purpose of this Clause 15) and the Referee shall
act as experts and not as arbitrators and their certificate shall, in the
absence of manifest error, be final, conclusive and binding on the Parties. 


	
 

	
 

	
 

	
 


	
15.2

	
The Board shall notify the Parties of the Certified Price once it has
received from the Referee upon which the relevant Party shall deliver a
irrevocable offer to sell its Shares or to purchase the other Party’s Shares,
as the case may be, to the other Party specifying the purchase or sale price
equivalent to such Certified Price multiplied by the relevant number of the
Shares to be sold or purchased (the “Sale Shares”) and the time and place for
such transfer (the “Sale Notice”). Each of the Parties shall
use its commercially reasonable endeavours to complete such transfer on or
before the time specified in the Sale Notice. 


	
 

	
 

	
 

	
 


	
15.3

	
If the Parties fail to sell or purchase the Sale Shares, as the case
may be, within two months from the date of the Sale Notice (or any longer
period as the Parties may agree in writing) howsoever and for any reason
whatsoever, each of the Parties agrees that it shall thereupon procure that the Company shall
(unless already in liquidation) be placed (and thereafter remain) in
voluntary liquidation and each undertakes with the other to procure
that the Board shall convene a meeting of shareholders to wind-up the Company
within one month of the expiry of such two months period and each Party
undertakes with the other to vote in favour of the resolution for winding up.



	
 

	
 

	
 

	
 


	
16.

	
SPECIAL LIABILITIES
OF THE SHAREHOLDERS


	
 

	
 

	
 

	
 


	
 

	
In case the Company and/or the PRC Company are placed in liquidation
for any reason, the Parties acknowledge that it is important that liabilities
of the Company and the PRC Subsidiary (as the case may be) should be all
settled to have a solvent liquidation to protect the Parties’ reputation and
their other business and/or future business in the Territory. The Parties
therefore hereby agree that if the Company and/or the PRC Subsidiary (as the
case may be) do not have sufficient assets to pay off all its liabilities in
the relevant liquidation each of the Parties shall bear such excess
liabilities in proportion to its shareholding and with a view to having such
liquidation completed as soon as possible.





14









	
 

	
 

	
 

	
 


	
17.

	
INDEMNITY


	
 

	
 

	
 

	
 


	
17.1

	
ACL shall not and shall procure that the Director nominated by it
from time to time shall not, enter into any agreement whatsoever on behalf of
the Company without prior approval of the Board (and of Tomen where
applicable), failing which ACL hereby undertakes that it shall indemnify the
Company and/or Tomen against any loss, damage and expense that they suffer
arising from such failure. 


	
 

	
 

	
 

	
 


	
17.2

	
Tomen shall not and shall procure that the Director nominated by it
from time to time shall not, enter into any agreement whatsoever on behalf of
the Company without prior approval of the Board (and of Tomen where
applicable), failing which Tomen hereby undertakes that it shall indemnify
the Company and/or ACL against any loss, damage and expense that they suffer
arising from such failure. 


	
 

	
 

	
 

	
 


	
18.

	
TRANSFER OF SHARES
AND NO SECURITY


	
 

	
 

	
 

	
 


	
18.1

	
Neither Shareholder shall have
the right to transfer any of its Shares unless in accordance with the
provisions of this Agreement and the Articles of Association.


	
 

	
 

	
 

	
 


	
18.2

	
Save and except any transfers
as a result of any call option granted to Tomen being exercised, a
Shareholder who wishes to sell, transfer or otherwise dispose of its Shares
shall be entitled to do so only, unless with the consent of the other
Shareholder, in accordance with the following provisions.


	
 

	
 

	
 

	
 


	
18.3

	
In case a Shareholder (the “Offeror
Shareholder”) wishes to sell, transfer or otherwise dispose of any
Share or Shares (or any interest therein) the other Shareholder shall have
the first priority right to purchase the Shares desired to be transferred
(the “Offer
Shares”). The Offeror Shareholder shall be entitled to sell,
transfer or otherwise dispose of the Offer Shares only, unless with the
consent of the other Shareholder, in accordance with the following
provisions.


	
 

	
 

	
 

	
 


	
18.4

	
The Offeror Shareholder shall
give notice in writing to the Company of such desire stating the number of
Offer Shares and stating the price at which the Offeror Shareholder wishes to
sell the Offer Shares or whether the sale is to be at the Net Asset Value (the
“Transfer
Notice”).


	
 

	
 

	
 

	
 


	
18.5

	
The Transfer Notice shall
constitute the Company the Offeror Shareholder’s agent to offer and sell the
Offer Shares to the other Shareholder (the “Offeree Shareholder”) at
the price so fixed by the Offeror Shareholder, save that no transfer shall in
any case be at more than such price as would (if calculated) be the Net Asset
Value. If the Transfer Notice specifies the Net Asset Value, or the Directors
deem appropriate, they shall forthwith instruct the Referee to determine the
Net Asset Value. Such Net Asset Value determined by the Referee shall be
final, conclusive and binding on the Shareholders.


	
 

	
 

	
 

	
 


	
18.6

	
If the Referee is instructed
to determine the Net Asset Value the Company shall as soon as it receives the
Referee’s report on the Net Asset Value serve a copy thereof on the Offeror
Shareholder who may within 14 days after such service withdraw the Transfer
Notice and cancel the Company’s authority to sell the Offer Shares by serving
upon the Company written notice of withdrawal (provided that the foregoing 





15









	
 

	
 

	
 

	
 


	
 

	
shall not apply if the
Transfer Notice has been deemed to have been served in accordance with Clause
18.4) or request the Company to change the offer price contained in the
Transfer Notice to the Net Asset Value determined by the Referee. An Offeror
Shareholder may not otherwise withdraw a Transfer Notice or cancel the
Company’s authority to sell except with the consent of the Directors.


	
 

	
 

	
 

	
 


	
18.7

	
Within 14 days after the
receipt of the Referee’s report or, in the circumstance that no Referee’s
report is required, within 14 days after the receipt of the Transfer Notice,
the Company shall give notice in writing (the “Offer Notice”) to the
Offeree Shareholder of the number and transfer price of the Offer Shares
(which is the price stated in the Transfer Notice or the Net Asset Value as
the case may be) (the “Transfer Price”), inviting the Offeree
Shareholder to state in writing (the “Acceptance Notice” (if the offer is
accepted)) within 28 days from the date of the said notice whether it is
willing to purchase at the Transfer Price, and if so what maximum number, of
the Offer Shares (the “Offer Period”).


	
 

	
 

	
 

	
 


	
18.8

	
The Offeror Shareholder shall
be bound to transfer the Offer Shares once the offer contained in the Offer
Notice is accepted. Completion for the sale and purchase of the Offer Shares
shall be taken place at the time and place agreed between the parties or
failing which, at 12 noon on the first business day after 30 days from the
date of the Acceptance Notice. 


	
 

	
 

	
 

	
 


	
18.9

	
If the Offeror Shareholder,
after becoming bound to transfer the Offer Shares, shall fail or refuse to do
so, the Company may receive the purchase money and the Directors may
authorise some person to execute a transfer of such Shares in favour of the
Offeree Shareholder, and may cause the name of the Offeree Shareholder to be
entered in the register of members as the holder of such Shares, and the
Company shall hold the purchase money in trust for the Offeror Shareholder.
The receipt of the Company for the purchase money shall be a good discharge
to the Offeree Shareholder and after its name has been entered in the
Register in purported exercise of the aforesaid power the validity of the
proceedings shall not be questioned by any person. The Offeror Shareholder
shall in such case be bound to deliver up its certificate(s) for the Offer
Shares, and on such delivery shall be entitled to receive the said purchase
price, without interest, and if such certificate comprises any Shares which
it has not become bound to transfer as aforesaid the Company shall issue to
it a balance certificate for such Shares.


	
 

	
 

	
 

	
 


	
18.10

	
If the offer for sale of the
Offer Shares comprised in the Offer Notice is not accepted by the Offeree
Shareholder within the Offer Period the Offeror Shareholder shall (at any
time within 6 calendar months after the expiry of the Offer Period) be at
liberty, subject to any other provisions of this Clause, to sell and complete
the sale of all (but not only part of) the Offer Shares to any person and at
any price not being less than the Transfer Price and on terms not more
favourable than those offered to the Offeree Shareholder.


	
 

	
 

	
 

	
 


	
18.11

	
Notwithstanding the foregoing
provisions of this Clause 18, the Directors may, in their absolute discretion
and without assigning any reason therefor, decline to register a transfer of
any Offer Shares to a person of whom they do not approve.


	
 

	
 

	
 

	
 


	
18.12

	
Unless with the prior written consent of the other Party, a Party
shall not be entitled to create any mortgage, pledge, lien, charge or any
other encumbrance on or with respect 





16









	
 

	
 

	
 

	
 


	
 

	
of any of its Shares, or its interest in any of its Shares.


	
 

	
 

	
 

	
 


	
19.

	
GENERAL


	
 

	
 

	
 

	
 


	
19.1

	
This Agreement contains the entire understanding between the Parties
and supersedes any prior understanding and/or agreements between the Parties
respecting the subject matter of this Agreement. There are no representations
agreements arrangements or understandings oral or written between the Parties
relating to the subject matter of this Agreement which are not fully
expressed herein.


	
 

	
 

	
 

	
 


	
19.2

	
Any variation to this Agreement shall be binding only if it is
recorded in a document signed by all the Parties.


	
 

	
 

	
 

	
 


	
19.3

	
This Agreement shall be binding on and enure to the benefit of each
Party and its successors and assigns but is personal to each Party.
Accordingly, a Party may not, except with the prior written consent by the
other Party, assign or transfer all or any of its rights, benefits, duties,
undertakings or obligations hereunder.


	
 

	
 

	
 

	
 


	
19.4

	
Nothing herein shall be taken to constitute a partnership between the
Parties or the appointment of one of the Parties as agent for the other.


	
 

	
 

	
 

	
 


	
19.5

	
The failure of a Party at any time or times to require performance by
the other Party of any provision of this Agreement shall in no way affect the
right of such Party to require performance of that or any other provision and
any waiver by a Party of any breach of this Agreement shall not be construed
as a waiver of any continuing or succeeding breach of such provision, a
waiver of the provision itself or a waiver of any other right under this Agreement.


	
 

	
 

	
 

	
 


	
19.6

	
Should any provision of this Agreement be declared void or
unenforceable by any competent authority or court this shall not affect the
other provisions of this Agreement which are capable of severance, which
shall continue unaffected.


	
 

	
 

	
 

	
 


	
20.

	
NOTICES


	
 

	
 

	
 

	
 


	
20.1

	
Any notice or other communication under or in connection with this
Agreement shall be in writing and shall be left at or sent by pre-paid
registered mail or facsimile transmission to the respective addresses set out
below or to such other address and/or number as may have been last notified
in writing by such Party to the other Party hereto.








	
 

	
 

	
 

	
 


	
 

	
To

	
:

	
Tomen Devices Corporation


	
 

	
 

	
 

	
 


	
 

	
Address

	
:

	
8-12, Harumi 1-chome, Chuo-ku


	
 

	
 

	
 

	
Tokyo, 104-6230


	
 

	
 

	
 

	
Japan


	
 

	
Attention

	
:

	
Mr. Tsumaki Ichiro


	
 

	
Facsimile

	
:

	
(81)3 3536 7871


	
 

	
 

	
 

	
 


	
 

	
To

	
:

	
ACL International Holdings Limited





17









	
 

	
 

	
 

	
 


	
 

	
Address

	
:

	
Room 1701, 17/F, Tower 1, Enterprise Square


	
 

	
 

	
 

	
9 Sheung Yuet Road


	
 

	
 

	
 

	
Kowloon Bay, Kowloon


	
 

	
 

	
 

	
Hong Kong


	
 

	
Attention

	
:

	
Mr. Kenneth L Y Chan


	
 

	
Facsimile

	
:

	
(852)3666 9713








	
 

	
 


	
20.2

	
Any such notice or other document shall be deemed to have been duly
given upon receipt if left or sent by facsimile transmission and in the case
of notice sent by post it shall be deemed to have been given 3 days after posting.
In proving the giving of a notice it shall be sufficient to prove that the
notice was left or that the envelope containing such notice was properly
addressed and posted or that the applicable means of telecommunication was
properly received (as the case may be).


	
 

	
 


	
21.

	
AGREEMENT TO PREVAIL


	
 

	
 


	
 

	
In the event of any ambiguity or conflict arising between the terms
of this Agreement and those of the Memorandum and/or the Articles of
Association for the time being in force, the terms of this Agreement shall
prevail.


	
 

	
 


	
22.

	
COUNTERPARTS


	
 

	
 


	
 

	
This Agreement may be executed in any number of counterparts and by
the Parties hereto on separate counterparts each of which when so executed
and delivered shall be an original but all the counterparts together shall constitute
one and the same instrument.


	
 

	
 


	
23.

	
LEGAL EXPENSES


	
 

	
 


	
 

	
Each Party shall bear its own costs and expenses (including legal
fees and expenses) incidental to the preparation and completion of this
Agreement provided that the costs and expenses in relation to incorporation
of the Company shall be borne by the Parties in equal shares. The costs and
expenses (including legal fees and expenses) incurred by the Parties in
relation to or the incorporation of the Companies shall be borne by the
Company as its expense.


	
 

	
 


	
24.

	
GOVERNING LAW AND JURISDICTION


	
 

	
 


	
24.1

	
This Agreement shall be governed by and construed in accordance with
the laws of Hong Kong.





18









	
 

	
 


	
24.2

	
The Parties hereto hereby submit to the non-exclusive jurisdiction of
the courts of Hong Kong in relation to any claim, dispute or difference which
may arise hereunder.





AS
WITNESS whereof the Parties have caused this Agreement
to be duly executed.


	
 

	
 

	
 

	
 


	
SIGNED by
Shizuka Ishikawa

	
)

	
/s/ Shizuka Ishikawa


	
for and on
behalf of

	
)

	
 


	
TOMEN DEVICES
CORPORATION

	
)

	
 


	
in the
presence of:- Ichiro Tsumaki

	
)

	
/s/ Ichiro
Tsumaki


	
 

	
 

	
 


	
SIGNED by Yang
Chung Lun

	
)

	
/s/
Chung-Lun Yang


	
for and on
behalf of

	
)

	
 


	
ACL
INTERNATIONAL HOLDINGS 

	
)

	
 


	
LIMITED

	
)

	
 


	
in the
presence of:-

	
)

	
/s/ Raymond
N. M. Ng


	
 

	
Raymond N.
M. Ng

	
 

	
 


	
 

	
Solicitor,
Hong Kong SAR

	
 

	
 


	
 

	
Fung, Wong,
Ng & Lam

	
 

	
 


	
 

	
Solicitors
& Notaries

	
 

	
 





19