SHARES BUY-BACK AGREEMENT
THIS SHARES EXCHANGE AGREEMENT (this "Agreement") is made and
entered into as of August ___, 2007, by and between Sysview Technology, Inc., a
Delaware corporation (the "Company"), and Syscan Imaging Limited (the
"Investor"), a British Virgin Islands corporation.
RECITALS
WHEREAS, the Investor holds among other things, 8,000,000
shares of Common Stock (the "Sale Shares") of the Company. Pursuant to the terms
and subject to the conditions herein, the Investor wishes to sell to Company the
Sale Shares, and the Company wishes to purchase the Sale Shares from the
Investor; and
WHEREAS, the Company desires to pay to the Investor and the
Investor desires to purchase and receive from the Company: (i) a portion of any
equity interests in Gloria Display Technology Co., Ltd., a Cayman Islands
exempted company ("Gloria"), acquired by the Company and (ii) $2,000,000 in cash
(the "Cash Consideration") as consideration for the Company's purchase of the
Sale Shares on the terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the premises and mutual
covenants hereinafter set forth and other good and valuable consideration, the
parties hereto, on the basis of, and in reliance upon, the representations,
warranties, covenants, obligations and agreements set forth in this Agreement,
and upon the terms and subject to the conditions contained herein, hereby agree
as follows:
ARTICLE I
PURCHASE AND SALE OF THE SHARES
1.1 Purchase and Sale of the Sale Shares.
(a) The Investor hereby agrees to exchange, sell, assign,
transfer and deliver to the Company, and the Company hereby agrees to purchase
and acquire from the Investor, on the Closing Date (as hereinafter defined), the
Sale Shares, free from any charge, lien, encumbrance or adverse claim of any
kind whatsoever.
(b) The Company hereby agrees to pay and to issue to the
Investor, and the Investor hereby agree to purchase and acquire from Company, on
the Closing Date, the Cash Consideration.
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1.2 Delivery of Sale Shares and Cash Consideration. At the Closing, (i)
the Investor shall deliver to Company the stock certificates representing all of
the Sale Shares, duly endorsed in favor of Company or accompanied by stock
powers duly executed in favor of and in a form reasonably acceptable to Company,
free from any charge, lien, encumbrance or adverse claim of any kind whatsoever,
and (ii) the Company shall (A) pay the Cash Consideration to the Investor by (a)
check payable to the Investor, (b) wire transfer in accordance with the
Investor's instructions, (c) cancellation of indebtedness, (d) issuance of
promissory notes or (e) any combination of the foregoing in the Company's sole
discretion.
1.3 The Closing. The consummation of the transactions contemplated
hereunder (the "Closing") shall take place on August 31, 2007, at the offices of
Richardson & Patel, LLP, 405 Lexington Avenue, 26th floor, New York, NY 10174,
at 5 p.m. local time or at such other time and place as the parties may mutually
agree (the "Closing Date").
1.4 Gloria Equity. In the event that: (a) the Company sells or
otherwise transfers ownership of its HD display business to Gloria and (b) in
consideration of said sale or transfer receives common stock of Gloria, then
Company shall transfer a portion of its common stock of Gloria to Investor. Said
portion shall be equal to the lesser of: (x) 12% of the outstanding common stock
of Gloria or (y) 50% of the common stock of Gloria received by Company in
consideration of said sale or transfer. Nothing herein shall be deemed to
obligate Company to consummate any transaction with Gloria or to require Company
to accept common stock of Gloria in consideration of said sale or transfer.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF THE COMPANY
The Company hereby represents and warrants to the Investor as of the
Closing that:
2.1 The Company is a corporation duly organized, validly existing and
in good standing under the laws of Deleware. The Company has the requisite
corporate power and authority to own and operate its properties and assets, to
carry on its business as presently conducted.
2.2 This Agreement is a legal, valid and binding obligation of the
Company, enforceable against the Company in accordance with its terms. This
Agreement, when performed in accordance with its terms, will not cause the
Company to be in breach of any agreement, law, rule, regulation or government
policy to which it is subject.
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ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE INVESTOR
The Investor hereby represents and warrants to the Company as of the
date hereof and as of the Closing as follows:
3.1 The Investor is a corporation duly organized, validly existing and
in good standing under the laws of the British Virgin Islands. The Investor has
the requisite corporate power and authority to own and operate its properties
and assets, to carry on its business as presently conducted,., has the power and
authority, has obtained all requisite corporate authorizations and has taken all
actions necessary to execute and deliver this Agreement and to perform its
obligations hereunder. This Agreement is a legal, valid and binding obligation
of the Investor, enforceable against the Investor in accordance with its terms.
This Agreement, when performed in accordance with its terms, will not cause the
Investor to be in breach of any agreement, law, rule, regulation or government
policy to which it is subject. No consents, approvals, authorizations, orders,
filings, registrations or qualifications of or with any court, governmental
authority or third parties ("Consents") is required to be obtained by the
Investor in connection with the execution and delivery of this Agreement by the
Investor or the performance of the Investor's obligations, other than such
Consents which have been obtained and are in full force and effect. There is no
action, suit, claim, investigation or proceeding pending or threatened against
the Investor that questions the validity of this Agreement or the transactions
contemplated hereby or any action taken or to be taken pursuant hereto.
3.2 The Investor represents and warrants that it is, at the date hereof
and upon the delivery of the Sale Shares to the Company at the Closing, the
original and registered owner of such shares, free and clear of any security
interests, liens, pledges or other encumbrances, and has good and marketable
title to such shares.
3.3 The Investor has reviewed all tax laws applicable to the Investor
such consequences of the sale of the Sale Shares to the Company and the
transactions contemplated by this Agreement with its or his own tax advisors.
The Investor is relying solely on such advisors and not on any statements or
representations of the Company or any of their agents. The Investor understands
that it shall be responsible for its or his own tax liability that may arise as
a result of the transactions contemplated by this Agreement.
ARTICLE IV
CLOSING CONDITIONS
The Closing shall occur upon the satisfaction of all the following
conditions, unless waived in writing by the applicable party or parties:
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4.1 Certificates for Shares. The Company shall have received stock
certificates for the Sale Shares prior to or upon the Closing.
4.2 Representations and Warranties True. All representations and
warranties of Company and the Investor in this Agreement shall be true and
correct on and as of the Closing Date as if made on the date thereof, if
applicable.
4.3 Consents. Investor shall have provide evidence that all Consents or
notifications to any third parties (including governmental agencies), if any,
required to sell and exchange the Sale Shares and to consummate the transactions
contemplated hereby have been obtained by the Investor.
4.4 Legal Opinion. The Company shall have received a legal opinion from
the counsel to the Investor, in such form and substance as are reasonably
acceptable the Company.
ARTICLE V
MISCELLANEOUS.
5.1 Governing Law. This Agreement shall be governed in all respects by
the internal laws of the State of Deleware as applied to agreements entered
into.
5.2 Dispute Resolution. Any dispute, controversy or claim arising out
of or relating to this Agreement, or breach thereof, shall be submitted to and
finally resolved by arbitration. The arbitration shall be administered by the
American Arbitration Association ("AAA") according to the Commercial Arbitration
Rules (excluding the Optional Procedures for Large, Complex Commercial Disputes)
and the Optional Rules for Emergency Measures of Protection of the AAA. The
Federal Arbitration Act shall govern the interpretation and enforcement of this
arbitration provision. Arbitration shall take place in the County of Santa
Clara, California, and shall be the exclusive forum for resolving such dispute,
controversy or claim. The arbitration shall be heard by one (1) arbitrator who
must be disinterested, experienced in commercial transactions. The arbitrator
shall be appointed jointly by the parties within thirty (30) days following the
date on which the arbitration is instituted. If the parties are unable to agree
upon an arbitrator within such thirty (30)-day period, the AAA shall select such
arbitrator within thirty (30) days thereafter. The decision of the arbitrator
shall be executory, final and binding upon the parties hereto and judgment on
the award rendered by the arbitrator may be entered in any court having
jurisdiction thereof.
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5.3 Amendments and Waivers. No amendment shall be valid unless the same
shall be in writing and signed, by each party to this Agreement.
5.4 Delays or Omissions. No delay or omission to exercise any right,
power or remedy accruing to the Company or to the Investor, upon any breach or
default of any party hereto under this Agreement, shall impair any such right,
power or remedy of the Company, or of the Investor nor shall it be construed to
be a waiver of any such breach or default, or an acquiescence therein, or of any
similar breach of default thereafter occurring; nor shall it be construed to be
any waiver of any other breach or default theretofore or thereafter occurring.
5.5 Entire Agreement. This Agreement and the schedules and exhibits
hereto which are hereby expressly incorporated herein by this reference
constitute the entire understanding and agreement between the parties with
regard to the subjects hereof and thereof; provided, however, that nothing in
this Agreement shall be deemed to terminate or supersede the provisions of any
confidentiality and nondisclosure agreements executed by the parties hereto
prior to the Effective Date, which agreements shall continue in full force and
effect until terminated in accordance with their respective terms.
5.6 Survival. The representations, warranties, covenants and agreements
made herein shall survive any investigation made by any party hereto and the
Closing of the transactions contemplated hereby.
5.7 Successors and Assigns. Except as otherwise expressly provided
herein, the provisions hereof shall inure to the benefit of, and be binding
upon, the successors, assigns, heirs, executors and administrators of the
parties hereto whose rights or obligations hereunder are affected by such
amendments. This Agreement and the rights and obligations therein may not be
assigned by a party without the written consent of the other party.
5.8 Notices. Except as may be otherwise provided herein, all notices,
requests, waivers and other communications made pursuant to this Agreement shall
be in writing and shall be conclusively deemed to have been duly given (a) when
hand delivered to the other party; (b) when received when sent by electronic
mail or facsimile at the email address, address and number set forth in Schedule
II; or (c) three (3) business days after deposit with internationally recognized
overnight delivery service, postage prepaid, addressed to the parties as set
forth below with next-business-day delivery guaranteed, provided that the
sending party receives a confirmation of delivery from the delivery service
provider.
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Each person making a communication hereunder by facsimile or email
shall promptly confirm by telephone to the person to whom such communication was
addressed. Each communication made by it by facsimile or email pursuant hereto
but the absence of such confirmation shall not affect the validity of any such
communication. A party may change or supplement the addresses given above, or
designate additional addresses, for purposes of this Section 4.8 by giving the
other party written notice of the new address in the manner set forth above.
5.9 Finder's Fees. Each party (a) represents and warrants to the other
party hereto that it has retained no finder or broker in connection with the
transactions contemplated by this Agreement, and (b) hereby agrees to indemnify
and to hold harmless the other party hereto from and against any liability for
any commission or compensation in the nature of a finder's fee of any broker or
other person or firm (and the costs and expenses of defending against such
liability or asserted liability) for which the indemnifying party or any of its
employees or representatives are responsible.
5.10 Titles and Subtitles. The titles of the sections and subsections
of this Agreement are for convenience of reference only and are not to be
considered in construing this Agreement.
5.11 Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but all of which together
shall constitute one instrument.
5.12 Severability. If one or more provisions of this Agreement are held
to be invalid or unenforceable under applicable law, then such provision(s)
shall be excluded from this Agreement and the balance of this Agreement shall be
interpreted as if such provision(s) were so excluded and shall be enforceable in
accordance with its terms.
5.13 Confidentiality and Non-Disclosure. The parties hereto agree to be
bound by the confidentiality and non-disclosure provisions of Section 9 of that
certain Shareholders Agreement entered into by and between the Investor and
Company and such other parties to that agreement.
5.14 Termination. This Agreement may be terminated and the transactions
contemplated by this Agreement may be abandoned at any time prior to the
Closing, notwithstanding any requisite approval and adoption of this Agreement
and the transactions contemplated by this Agreement, as follows:
(i) by written consent of the parties hereto;
(ii) by the Company, by delivery of a written notice to the
Investor if any of the conditions to the Company's obligations to consummate the
transactions contemplated hereunder as set forth in Section 4 hereof shall not
have occurred on or before the date that is forty-five (45) days from the date
of this Agreement.
[SIGNATURE PAGE TO FOLLOW]
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[SIGNATURE PAGE TO SHARE EXCHANGE AGREEMENT]
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
"COMPANY"
SYSVIEW TECHNOLOGY, INC
By: /s/ Darwin Hu
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Name: Darwin Hu
Title: President & CEO
"INVESTOR"
SYSCAN IMAGING LIMITED
By: /s/ Cheung Wai
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Name: Cheung Wai
Title: Chairman
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EXHIBIT A
LIST OF CONSENTS