Undertaking Agreement: Definition, Terms, Example

Exhibit 10.23

Letter of Undertaking

November 2006

Confidential treatment has been requested for portions of this exhibit. The copy filed herewith omits the information subject to the confidentiality request. Omissions are designated as ****. A complete version of this exhibit has been filed separately with the Securities and Exchange Commission.

Letter of Undertaking

November 2006

Newegg Inc.

Tekhill Information Technologies (Shanghai) Inc.

Attn: Mr. Fred Faching Chang

16839 East Gale Avenue

City of Industry, CA 91745

Telephone: 626-271-9700

Facsimile: 626-271-9464

Mr. Chang:

Whereas:

NOW, THEREFORE, in consideration of the representations, warranties and covenants set forth herein, the Promisers hereby jointly and severally undertake, in their capacity as the shareholders of the Domestic Co, to Newegg (Newegg and the Promisers are each hereinafter individually referred to as a “Party” and collectively the “Parties”) as follows:

Article 1. Operation and Management of the Domestic Co

Section 1.01 Each Promiser hereby undertakes and warrants to Newegg that:

Section 1.02 Each Promiser hereby undertakes and warrants that it will not, without the prior written consent of Newegg, allow any party to provide any security in whatever form to any creditor of the Domestic Co for any debt or liability borne by the Domestic Co.

Section 1.03 Each Promiser hereby undertakes and warrants that it will not, without Newegg’s prior written consent, take or permit to be taken any of the following actions with respect to the Domestic Co:

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Article 2. Performance of Agreements

Section 2.01 The Promisers hereby undertake that they will execute and perform all agreements between them or any of them and Newegg strictly according to the terms and conditions thereof, including without limitation:

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Section 2.02 Each Promiser hereby undertakes that it will exert its best efforts, as a shareholder of the Domestic Co, to cause the Domestic Co to execute and perform the Commercial Agreement between the Domestic Co and Newegg strictly according to the terms and conditions thereof.

Article 3. Qualifications and Capacity

Section 3.01 Each Promiser hereby undertakes and warrants that, as of the date of this Letter:

Section 3.02 Each Promiser hereby acknowledges that its execution of this Letter is fully based on its own will, and that it has agreed to perform all of its undertakings contained herein fully and solely based on its own will without being coerced in any way or imposed upon any improper pressure. Each Promiser further acknowledges that:

Section 3.03 The obligations and liabilities of the Promisers set forth hereunder are several and not joint.

Article 4. Other Undertakings

Section 4.01 The Parties hereby further undertake to keep the content of this Letter in strict confidence and not to disclose to any third party without the prior written consent of the other Party/Parties, other than seeking its legal, financial or tax advisors.

Section 4.02 The Promisers hereby acknowledge that Newegg may, at any time it deems necessary, assign its rights hereunder to any third party without needing to obtain the consent of

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the Promisers thereon and will only need to give a written notice to the Promisers for such assignment. The Promisers shall have the right to assign this Letter only with the prior written consent of Newegg.

Section 4.03 The Promisers hereby undertake that they will sign all necessary documents and take all necessary actions within their capacity required to keep the provisions hereof in full force and fully performed.

Section 4.04 Should any of the Promisers breach any provision of this Letter, such breach shall not affect the rights and obligations of other Promisers to this Letter and any other relevant agreements as well as the performance and the enforcement of this Letter and such other agreements.

Section 4.05 This Letter shall inure to and be binding upon the Promisers and their respective successors and assigns.

Section 4.06 This Letter has been signed by the Promisers, and shall come into full force and effect, on the date first above written. This Letter shall remain effective until and unless all the Equity Interest has been transferred to Newegg and/or its designee(s).

Section 4.07 This Letter has been negotiated and drafted in the English language. If reference to a foreign language translation is required, any ambiguity in the text of the foreign language translation or any disagreement concerning the foreign language translation shall be resolved by reference to the English text.

Article 5. Governing Law; Arbitration

Section 5.01 This Letter shall be governed by, and construed and enforced in accordance with, the internal laws of the State of California as such laws are applied to agreements between California residents entered into and to be performed within California without regard to principles of conflicts of laws.

Section 5.02 Each of the Parties irrevocably (i) agrees that any dispute or controversy arising out of, relating to, or concerning any interpretation, construction, performance or breach of this Letter, shall be settled by arbitration to be held in Los Angeles County, California, in accordance with the Commercial Arbitration Rules and Mediation Procedures (including Procedures for Large, Complex Commercial Disputes) then in effect of the American Arbitration Association, (ii) waives, to the fullest extent it may effectively do so, any objection which it may now or hereafter have to the laying of venue of any such arbitration, and (iii) submits to the exclusive jurisdiction of the State of California in any such arbitration. The decision of the arbitrator shall be final, conclusive and binding on the parties to the arbitration. Judgment may be entered on the arbitrator’s decision in any court having jurisdiction. The parties to the arbitration shall each pay an equal share of the costs and expenses of such arbitration, and each party shall separately pay for its respective counsel fees and expenses; provided, however, that the prevailing party in any such arbitration shall be entitled to recover from the non-prevailing party its reasonable costs and attorney fees.

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Section 5.03 The Parties agree that irreparable damage would occur in the event that any of the provisions of this Letter were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to seek an injunction or injunctions to prevent breaches of this Letter and to enforce specifically the terms and provisions hereof as permitted by Rule 43 of the Rules, this being in addition to any other remedy to which they are entitled at law or in equity.

[Rest of Page Intentionally Blank]

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SIGNATURE PAGE TO LETTER OF UNDERTAKING

EXHIBIT A

Reference:
Security Exchange Commission - Edgar Database, EX-10.23 4 dex1023.htm LETTER OF UNDERTAKING, Viewed April 26, 2022, View Source on SEC.