exv4w53



 





Exhibit 4.53




Execution Version




DATED February 6, 2008




HONG KONG ENERGY (HOLDINGS) LIMITED




and




NAM TAI ELECTRONICS, INC.




 



EXCLUSIVITY AGREEMENT

 






Baker & McKenzie

14th Floor Hutchison House

Hong Kong




Tel: (852) 2846-1888

Fax: (852) 2845-0476




Ref.: LKL/RCC/HOL




 









 





THIS AGREEMENT is made on the 6th day of February 2008




BETWEEN:





	(1)	 	HONG KONG ENERGY (HOLDINGS) LIMITED, a company incorporated in Bermuda, whose principal
office in Hong Kong is situated at 9th Floor, Tower 1, South Seas Centre, 75 Mody
Road, Tsim Sha Tsui East, Kowloon, Hong Kong (“HKE”); and
	 
	(2)	 	NAM TAI ELECTRONICS, INC., a company incorporated in the British Virgin Islands, whose
principal office in Hong Kong is situated at Suites 1506-1508, 15th Floor, One
Exchange Square, 8 Connaught Place, Central, Hong Kong (“Nam Tai”).





WHEREAS:





	(A)	 	HKE is a wholly-owned subsidiary of HKC (Holdings) Limited, a company incorporated in Bermuda
whose shares are listed on the main board of The Stock Exchange of Hong Kong Limited.
	 
	(B)	 	HKC (Holdings) Limited and Nam Tai have been negotiating on a potential sale of shares in
J.I.C. Technology Company Limited (the “Company”) by Nam Tai to HKC who intends to transact
through HKE (the “Transaction”). For this purpose, Nam Tai is to allow due diligence and a
more detailed investigation of the Company and its subsidiaries (the “Group”) by HKE to the
extent permitted under applicable laws and regulations and on the terms and conditions set out
in this Agreement. Nam Tai has also agreed to negotiate with HKE on an exclusive and
confidential basis on the terms and conditions set out in this Agreement.





THE PARTIES AGREE THAT:





	1.	 	EXCLUSIVITY
	 
	1.1	 	The parties acknowledge that the due diligence exercise of the Group is likely to involve
considerable time on the part of the management of HKE, Nam Tai and their professional
advisers, and accordingly Nam Tai has agreed to negotiate with HKE on an exclusive basis in
relation to the Transaction for a period commencing on the date hereof and ending on 15 March
2008 or such later date as the parties may otherwise agree in writing (the “Exclusivity
Period”).
	 
	1.2	 	During the Exclusivity Period, Nam Tai shall ensure that none of its directors, officers,
employees, professional advisers or agents will, and shall procure that the Company will not:






	 	1.2.1	 	directly or indirectly solicit, initiate or participate in discussions or
negotiations with any third party, or entertain proposals from any third party, in
relation to the Transaction or disposal of substantial assets by the Group; or
	 
	 	1.2.2	 	provide any information to any third party with a view to that third party
acquiring shares in the Company from Nam Tai or acquiring substantial assets from the
Group.




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	1.3	 	In consideration of Nam Tai granting HKE negotiation exclusivity under this Agreement, HKE
shall pay Nam Tai an amount of HK$1,000,000 in cash (the “Earnest Money”) upon the signing of
this Agreement.
	 
	1.4	 	The obligations of Nam Tai in this Clause 1 will terminate upon the earlier of:






	 	1.4.1	 	Nam Tai and HKE (or a person it may nominate) failing to enter into a
definitive agreement relating to the Transaction before the expiry of the Exclusivity
Period; and
	 
	 	1.4.2	 	HKE having notified to Nam Tai in writing that it no longer wishes to continue
with the negotiations relating to the Transaction.






	1.5	 	In relation to the Earnest Money:






	 	1.5.1	 	where Nam Tai and HKE (or a person it may nominate) fail to enter into a
definitive agreement relating to the Transaction before the expiry of the Exclusivity
Period, Nam Tai shall forthwith return 50 per cent. of the Earnest Money (being
HK$500,000) to HKE in cash without any interest, cost or compensation, and Nam Tai
shall be entitled to forfeit absolutely the remaining balance of the Earnest Money
(being HK$500,000) paid to Nam Tai under this Agreement;
	 
	 	1.5.2	 	where Nam Tai and HKE (or a person it may nominate) have entered into a
definitive agreement relating to the Transaction before the expiry of the Exclusivity
Period, the Earnest Money shall be applied as part of the payment to be made by HKE to
Nam Tai with respect to the Transaction upon completion; but where the Transaction is
not completed in the absence of any default of Nam Tai, Nam Tai shall forthwith return
50 per cent. of the Earnest Money (being HK$500,000) to HKE in cash without any
interest, cost or compensation, and Nam Tai shall be entitled to forfeit absolutely the
remaining balance of the Earnest Money (being HK$500,000) paid to Nam Tai under this
Agreement; and where the Transaction is not completed due to a default of Nam Tai, Nam
Tai shall forthwith return the whole of the Earnest Money (being HK$1,000,000) to HKE
in cash without any interest, cost or compensation under this Agreement.






	2.	 	OBLIGATIONS
	 
	2.1	 	During the Exclusivity Period, the parties shall conduct negotiation in good faith with a
view to entering into a definitive agreement relating to the Transaction.
	 
	2.2	 	Subject to the requirements of applicable laws and regulations and having regard, in
particular, to those relating to equality information to the shareholders of the Company, and
subject to Clause 3 of this Agreement, Nam Tai would assist HKE in its due diligence on the
Group. In particular, Nam Tai agrees that immediately after the execution of this Agreement,
it shall provide HKE reasonable access to (a) the books, records, properties and assets of the
Group, (b) all staff of Nam Tai who can provide information relating to the Group, and (c) Nam
Tai’s records and evidence in relation to its stake in the Group, in order to enable HKE to
conduct a due diligence investigation of the Group’s business operations and assets.




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	3.	 	CONFIDENTIALITY
	 
	3.1	 	The parties agree that (a) the content and existence of this Agreement, and (b) in respect of
a party receiving information (the “Receiving Party”), all information disclosed by the other
party (the “Disclosing Party”) or any of its officers, employees, professional advisers or
agents to the Receiving Party or its officers, employees, professional advisers or agents
relating to the Transaction (in particular in respect of HKE, all information relating to the
Group) and the Disclosing Party (the “Confidential Information”), shall be treated as strictly
confidential and shall not be disclosed by them to any third party (including employees of the
Group who are not also senior employees of Nam Tai involving in the discussion of the
Transaction) except:






	 	3.1.1	 	required by law or any order of any court of competent jurisdiction or any
rule or regulation of any recognised stock exchange; or
	 
	 	3.1.2	 	disclosed to their respective senior employees, legal and financial advisers
for the sole purpose of evaluating or advising on the Transaction (the “Permitted
Purpose”).






	3.2	 	The parties undertakes with each other that it will:






	 	3.2.1	 	keep in safe custody all documentation and other papers and all discs, tapes
and other media recording or storing any of the Confidential Information, so as to
avoid all unauthorised access;
	 
	 	3.2.2	 	not, without the prior written consent of the other party, make any use of the
Confidential Information except for the Permitted Purpose, and, in particular, but
without limitation, not use the Confidential Information to procure any commercial
advantage over the Group or the other party;
	 
	 	3.2.3	 	not disclose or reveal the Confidential Information to any person or to
reproduce or make copies of it in any form (including electronically readable or
hardcopy form) unless this Agreement allows a party to, and where a party becomes aware
or suspect that any Confidential Information has been disclosed to an unauthorised
person, to inform the other party immediately to that effect;
	 
	 	3.2.4	 	ensure that anyone to whom a party disclose the Confidential Information to is
made fully aware that the Confidential Information is confidential; and
	 
	 	3.2.5	 	procure that the persons to which the Confidential Information is disclosed
will comply with the obligations contained in this Clause as if they were a party to
this Agreement (other than in relation to the disclosures under Clauses 3.1.1 or
3.1.2).






	4.	 	GOVERNING LAW AND JURISDICTION






	4.1	 	This Agreement shall be governed by and construed in accordance with the laws of the





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Hong Kong Special Administrative Region of the People’s Republic of China (“Hong Kong”).




	4.2	 	The parties hereby irrevocably submit to the non-exclusive jurisdiction of the Hong Kong
courts for the purpose of enforcing any claim arising under this Agreement.




IN WITNESS WHEREOF this Agreement has been executed on the day and year first above written.




	 	 	 	 	 
	SIGNED by Michael Ng
	 	)	 	 
	for and on behalf of
	 	)	 	 
	HONG KONG ENERGY
	 	)	 	 
	(HOLDINGS) LIMITED
	 	)	 	 






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	in the presence of:
	 	)	 	 
	 
	 	                    /s/ Michael Ng	 	 
	 
	 	 	 
	[Witness signature illegible]




SIGNED by John Farina
	 	)	 	 
	for and on behalf of
	 	)	 	 
	NAM TAI ELECTRONICS, INC.
	 	)	 	 
	in the presence of:
	 	)	 	 
	 
	 	                    /s/ John Q. Farina	 	 
	 
	 	 	 
	[Witness signature illegible]
	 	 	 	 







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