EXHIBIT 10.87
[***] DENOTES CONFIDENTIAL MATERIALS OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION PURSUANT TO
A REQUEST FOR CONFIDENTIAL TREATMENT
NTC/MICRON CONFIDENTIAL
AMENDED AND RESTATED JOINT VENTURE AGREEMENT
This AMENDED AND
RESTATED JOINT VENTURE AGREEMENT, dated this 11 th day of January, 2010, is made and
entered into by and between MICRON SEMICONDUCTOR B.V. (hereinafter
“ MNL ”), a private limited liability company
organized under the laws of the Netherlands and NANYA TECHNOLOGY
CORPORATION ( Nanya Technology Corporation [Translation from
Chinese] ) (hereinafter “ NTC ”), a company
incorporated under the laws of the Republic of China (“
ROC ” or “ Taiwan ”) (MNL and NTC
are each referred to individually as a “ JV Party,
” and collectively as the “ JV Parties
”).
RECITALS
A. NTC
and Infineon Technologies AG, a company incorporated under the laws
of Germany (hereinafter “ Infineon ”), have
previously formed Inotera Memories, Inc. ( Inotera Memories,
Inc. [Translation from Chinese] ), a company incorporated under
the laws of the ROC (the “ Joint Venture Company
”).
B. Infineon
subsequently assigned to Qimonda AG, a company incorporated under
the laws of Germany (hereinafter “ Qimonda ”),
all of Infineon’s Shares in the Joint Venture Company.
C. In
accordance with that certain Share Purchase Agreement, dated
October 11, 2008 (the “ Qimonda/MNL Share
Purchase Agreement ”), by and between Micron Technology,
Inc., a Delaware corporation (“ Micron ”), MNL,
Qimonda and Qimonda Holding B.V., a private limited company
organized under the laws of the Netherlands (“ Qimonda
B.V. ”), MNL acquired from Qimonda and Qimonda B.V.
Shares in the Joint Venture Company.
D. The
JV Parties previously entered into that certain Joint Venture
Agreement, dated November 26, 2008 (the “ Original Joint
Venture Agreement ”), to set forth certain agreements
regarding the ownership, governance and operation of the Joint
Venture Company.
E. The
JV Parties now desire to amend and restate the Original Joint
Venture Agreement in order to, among other things, reflect certain
changes the JV Parties deem appropriate in light of the recently
completed public sale of Shares (as defined hereinafter) by the
Joint Venture Company.
NOW, THEREFORE, for
good and valuable consideration, the receipt and sufficiency of
which are hereby acknowledged, the parties hereto, intending to be
legally bound, do hereby agree to amend and restate the Original
Joint Venture Agreement in its entirety to read as follows:
ARTICLE 1
DEFINITIONS; INTERPRETATION
Section 1.1
Definitions . In addition to the terms defined
elsewhere in this Agreement, capitalized terms used in this
Agreement shall have the respective meanings set forth below:
“ 2
nd Closing ”
shall have the meaning set forth in the Qimonda/MNL Share Purchase
Agreement.
“
Accountants ” shall have the meaning set forth in
Section 10.2(c)(ii) of this Agreement.
“
Affiliate ” means, with respect to any specified
Person, any other Person that, directly or indirectly, including
through one or more intermediaries, controls, is controlled by, or
is under common control with such specified Person; and the term
“ affiliated ” has a meaning correlative to the
foregoing.
“
Agreement ” means this Amended and Restated Joint
Venture Agreement.
“ Annual
Budget ” shall have the meaning set forth in Section
7.5(a)(ii) of this Agreement.
“ Annual
Business Plan ” shall have the meaning set forth in
Section 7.5(a)(i) of this Agreement.
“ Answer
Notice ” shall have the meaning set forth in Section
7.3(b) of this Agreement.
“ Applicable
Law ” means any applicable laws, statutes, rules,
regulations, ordinances, orders, codes, arbitration awards,
judgments, decrees or other legal requirements of any Governmental
Entity.
“ Articles
of Incorporation ” means the Articles of Incorporation of
the Joint Venture Company in the form and substance as Exhibit A
attached to this Agreement, and as amended from time to time.
“ Baseline
Flow ” shall have the meaning set forth in Section
7.2(b)(v) of this Agreement.
“ Board of
Directors ” means the board of directors of the Joint
Venture Company.
“ Boundary
Conditions ” means, with respect to any fab, the Trench
DRAM Boundary Conditions and Stack DRAM Boundary Conditions.
“ Business
Day ” means a day that is not a Saturday, Sunday or other
day on which commercial banking institutions in either the ROC or
the State of New York are authorized or required by Applicable Law
to be closed.
“ Business
Plan ” means any Annual Business Plan.
“ Buyout
Notice ” shall have the meaning set forth in Section
13.1(a) of this Agreement.
“ Buyout
Price ” shall have the meaning set forth in Section
12.3(a) of this Agreement.
“ Buyout
Shares ” shall have the meaning set forth in Section
13.1(a) of this Agreement.
“ Buyout
Subsidiary ” shall have the meaning set forth in Section
13.2 of this Agreement.
“
Chairman ” means the Chairman of the Board of
Directors.
“ Change
Notice ” shall have the meaning set forth in Section
7.3(b) of this Agreement.
“
Closing ” means the consummation of the 2nd
Closing.
“ Closing
Date ” means November 26, 2008, the date on which the
Closing occurred. For purposes of this Agreement and the
other agreements and instruments referenced herein, the Closing
shall be deemed to have occurred at 12:01 a.m. in Taipei, Taiwan on
such date.
“
Competitively Sensitive Information ” means any
information, in whatever form, that has not been made publicly
available relating to products and services that Micron or a
Subsidiary of Micron, on the one hand, and NTC or a Subsidiary of
NTC, on the other hand, sells in competition with the other at the
execution of this Agreement or thereafter, including DRAM Products,
to the extent such information of the Person selling such products
and services includes price or any element of price, customer terms
or conditions of sale, seller-specific costs, volume of sales,
output (but not including the Joint Venture Company’s
output), bid terms of the foregoing type and such similar
information as is specifically identified electronically or in
writing to the Joint Venture Company by Micron or a Subsidiary of
Micron, on the one hand, and NTC or a Subsidiary of NTC, on the
other hand, as competitively sensitive information.
“ Compliant
JV Party ” shall have the meaning set forth in Section
13.1(a) of this Agreement.
“
Confidentiality Agreement ” shall have the meaning set
forth in Section 15.13(a) of this Agreement.
“
Control ” (whether or not capitalized) means the power
or authority, whether exercised or not, to direct the business,
management and policies of a Person, directly or indirectly,
whether through the ownership of voting securities, by contract or
otherwise, which power or authority shall conclusively be presumed
to exist upon possession of beneficial ownership or power to direct
the vote of [***] of the votes entitled to be cast at a
meeting of the members, shareholders or other equity holders of
such Person or power to control the composition of a majority of
the board of directors or like governing body of such Person; and
the terms “ controlling ” and “
controlled ” have meanings correlative to the
foregoing.
“ COSL
” shall have the meaning set forth in Section 11.6 of this
Agreement.
“ Cure
Period ” shall have the meaning set forth in Section 12.5
of this Agreement.
“
Deadlock ” shall have the meaning set forth in Section
12.1 of this Agreement.
“ Defaulting
JV Party ” shall have the meaning set forth in Section
12.4 of this Agreement.
“
Design ID ” means a part number that is assigned to a
unique DRAM Design of a particular DRAM Product, which may include
a number or letter designating a specific device revision.
“ Design
SOW ” means any [***] .
“ Dilutive
Transaction ” means a transaction in which the Joint
Venture Company issues Shares and a JV Party does not purchase 100%
of the Shares that such JV Party would be entitled to purchase with
respect to such transaction as a result of fully exercising its
pre-emptive right with respect to the issuance of the Shares;
provided, however, that such transaction shall not be a Dilutive
Transaction if neither JV Party exercises any of its pre-emptive
rights with respect to such issuance of Shares.
“
Divestiture Action ” shall have the meaning set forth
in Section 2.4(c)(v) of this Agreement.
“ DRAM
Design ” means an Trench DRAM Designs or Stack DRAM
Design.
“ DRAM
Product ” means a Trench DRAM Product or Stack DRAM
Product.
“ Employee
Restriction Period ” means the period commencing on the
Closing Date and ending on the date that is two (2) years after the
later of (i) the sale, exchange, transfer, or disposal of all of
the ordinary shares of the Joint Venture Company owned by one JV
Party and its Subsidiaries to the other JV Party, its Affiliates or
to a Third Party that was not in contravention of this Agreement
and (ii) the termination of the JDP Agreement.
“ Equity
Interest ” means a JV Party’s percentage ownership
of the Shares as determined by dividing the number of Shares owned
by such JV Party at the time of determination by the total issued
and outstanding Shares at the time of determination.
“ Event of
Default ” shall have the meaning set forth in Section
12.4 of this Agreement.
“ Executive
Vice President ” shall have the meaning set forth in
Section 5.4(b) of this Agreement.
“ Exercise
Notice ” shall have the meaning set forth in Section
12.6(a) of this Agreement.
“ Fair
Value ” means (i) if the Joint Venture Company is listed
on the Taiwan Stock Exchange, [***] of the Shares
immediately prior to the date of the Exercise Notice or the Buyout
Notice, as applicable; or (ii) if the Joint Venture Company is not
then listed on the Taiwan Stock Exchange, the fair value
immediately prior to the date of the Exercise Notice or Buyout
Notice, as applicable, as determined by independent appraisers
selected as follows: each JV Party shall appoint one independent
appraiser, which shall be an internationally recognized accounting,
valuation or investment banking firm, and these two independent
appraisers shall mutually select a third independent
appraiser. Each such appraiser shall in good faith
conduct its own
independent appraisal to determine the fair
value of the Shares (ignoring any applicable minority discounts or
effects of illiquidity that may be associated with the Shares of
the Joint Venture Company), and [***] that are the closest
in value shall be the Fair Value of the Shares.
[***]
“ Filing
” shall have the meaning set forth in Section 2.4 of this
Agreement.
“ Filing
Event ” shall have the meaning set forth in Section 2.4
of this Agreement.
“ Fiscal
Quarter ” means any of the four financial accounting
quarters within the Fiscal Year.
“ Fiscal
Year ” shall have the meaning set forth in Section 10.1
of this Agreement.
“ GAAP
” means generally accepted accounting principles,
consistently applied for all periods at issue.
“
Governmental Entity ” means any governmental authority
or entity, including any agency, board, bureau, commission, court,
municipality, department, subdivision or instrumentality thereof,
or any arbitrator or arbitration panel.
“ ICDR
” means the International Centre for Dispute Resolution of
the American Arbitration Association.
“ Imaging
Product ” means any (i) semiconductor device having a
plurality of photo elements (e.g., photodiodes, photogates, etc.)
for converting impinging light into an electrical representation of
the information in the light, (ii) image processor or other
semiconductor device for balancing, correcting, manipulating or
otherwise processing such electrical representation of the
information in the impinging light, or (iii) combination of the
devices described in clauses (i) and (ii).
“
Infineon ” shall have the meaning set forth in the
Recitals of this Agreement.
“ Initiating
JV Party ” shall have the meaning set forth in Section
7.3(b) of this Agreement.
“ JDP
Agreement ” means that certain Joint Development Program
Agreement between NTC and Micron, dated as of April 21, 2008, as
amended.
“ JDP
Committee ” means the committee formed and operated by
Micron and NTC to govern the performance of Micron and NTC under
the JDP Agreement in accordance with the JDP Committee Charter.
“ JDP
Committee Charter ” means the charter attached as
Schedule 2 to the JDP Agreement.
“ Joint
Venture Company ” shall have the meaning set forth in the
Recitals to this Agreement.
“ Joint
Venture Documents ” means the documents identified on
Schedule A to this Agreement.
“ Joint
Venture Reportable Events ” shall have the meaning set
forth in Section 10.3 of this Agreement.
“ JV
Party ” shall have the meaning set forth in the preamble
to this Agreement.
“
Manufacturing Capacity ” means Trench DRAM
Manufacturing Capacity and Stack DRAM Manufacturing Capacity.
“
Manufacturing Committee ” shall have the meaning set
forth in Section 7.2(b)(i) of this Agreement.
“
Manufacturing Plan ” shall have the meaning set forth
in Section 7.2(c) of this Agreement.
“ Maximum
Output Percentage Adjustment ” means the
[***].
“ Micron
” shall have the meaning set forth in the Recitals to this
Agreement.
“ Micron
Assigned Employee Agreement ” means that certain Micron
Assigned Employee Agreement between Micron and the Joint Venture
Company, dated as of the Closing Date.
[***].
“ Minimally
Restored Position ” has the meaning set forth in Section
11.5(c) of this Agreement.
“ MNL
” shall have the meaning set forth in the preamble to this
Agreement.
“ MTT
” shall mean Micron Technology Asia Pacific, Inc., an Idaho
corporation.
“ NAND Flash
Memory Product ” means a non-volatile semiconductor
memory device containing memory cells that are electrically
programmable and electrically erasable whereby the memory cells
consist of one or more transistors that have a floating gate,
charge trapping regions or any other functionally equivalent
structure utilizing one or more different charge levels (including
binary or multi-level cell structures), with or without any on-chip
control, I/O and other support circuitry, in wafer, die or packaged
form.
“
Non-compliant JV Party ” shall have the meaning set
forth in Section 13.1(a) of this Agreement.
“
Non-Defaulting JV Party ” shall have the meaning set
forth in Section 12.5 of this Agreement.
“ Non-SOW
Product ” means a class of Stack DRAM Product that does
not result from a SOW.
“ Notice of
Default ” shall have the meaning set forth in Section
12.5 of this Agreement.
“ NT$
” means the lawful currency of the ROC.
“ NTC
” shall have the meaning set forth in the preamble to this
Agreement.
“ NTC
Assigned Employee Agreement ” means that certain NTC
Assigned Employee Agreement between NTC and the Joint Venture
Company, dated as of the Closing Date.
[***].
“ Offered
Shares ” means the Shares as defined in Section 9.3(a) of
this Agreement.
“ Option
Period ” shall have the meaning set forth in Section
9.3(b) of this Agreement.
“ Original
Joint Venture Agreement ” shall have the meaning set
forth in the Recitals to this Agreement.
“ Other JV
Party ” shall have the meaning set forth in Section
7.3(b) of this Agreement.
“ Output
Percentage ” means [***].
“ Output
Percentage Adjustment ” means, [***].
“ Permitted
Transfer ” shall have the meaning set forth in Section
9.2 of this Agreement.
“ Person
” means any natural person, corporation, joint stock company,
limited liability company, association, partnership, firm, joint
venture, organization, business, trust, estate or any other entity
or organization of any kind or character.
“
Plastics ” shall have the meaning set forth in Section
11.5(b) of this Agreement.
“
President ” shall have the meaning set forth in
Section 5.4(a) of this Agreement.
“ Process
Node ” means [***].
“ Prohibited
Employees ” shall have the meaning set forth in
Section 8.4(a) of this Agreement.
“ Proposing
JV Party ” shall have the meaning set forth in Section
12.3(a) of this Agreement.
“
Purchaser ” shall mean any Person for and to whom the
Joint Venture Company manufactures and delivers DRAM Products under
the Supply Agreement, currently NTC or Micron.
“
Qimonda ” shall have the meaning set forth in the
Recitals to this Agreement.
“ Qimonda
B.V. ” shall have the meaning set forth in the Recitals
to this Agreement.
“
Qimonda/MNL Share Purchase Agreement ” shall have the
meaning set forth in the Recitals to this Agreement.
“ Restricted
Employees ” shall have the meaning set forth in
Section 8.4(a) of this Agreement.
“ Receiving
Party ” shall have the meaning set forth in Section
9.3(a) of this Agreement.
“ Receiving
JV Party ” shall have the meaning set forth in Section
12.3(a) of this Agreement.
“ Regulatory
Law ” shall have the meaning set forth in Section 2.4 of
this Agreement.
“ Restored
Position ” shall have the meaning set forth in Section
11.5(b) of this Agreement.
“ ROC
” shall have the meaning set forth in the preamble to this
Agreement.
“ ROC
Company Law ” means the Company Law of the ROC,
promulgated on December 26, 1929, and as last amended on February
3, 2006.
“ ROC
Securities Exchange Law ” means the Securities and
Exchange Law of the ROC, promulgated on April 30, 1968, and as last
amended on May 30, 2006.
“ Sale
Offer ” shall have the meaning set forth in Section
9.3(a) of this Agreement.
“ Share
Decrease Percentage ” means [***].
“ Share
Disposition ” shall have the meaning set forth in Section
7.3(b) of this Agreement.
“
Shareholders’ Meeting ” or “
Shareholders’ Meetings ” shall have the meaning
set forth in Section 6.2 of this Agreement.
“ Shares
” means the ordinary shares of the Joint Venture Company,
each having a par value of [***].
“ SOW
” means a statement of the work that describes research and
development work to be performed under the JDP Agreement and that
has been adopted by the JDP Committee pursuant to Section 3.2 of
the JDP Agreement.
“ Stack
DRAM ” means dynamic random access memory cell that
functions by using a capacitor arrayed predominantly
above the semiconductor substrate.
“ Stack DRAM
Boundary Conditions ” means, with respect to any fab, a
requirement that, at any point in time:
[***].
“ Stack DRAM
Design ” means, with respect to a Stack DRAM Product, all
of the design elements, components, specifications and information
required to manufacture the subject Stack DRAM Product, including
some or all of the elements, components, specifications and
information listed on Schedule 3 to the JDP Agreement or
others.
“ Stack DRAM
Manufacturing Capacity ” means, with
respect to each of the Joint Venture Company’s fabs, the
total work minutes available for each Process Node to manufacture
Stack DRAM Products at such fab.
“ Stack DRAM
Module ” means one or more Stack DRAM Products in a
JEDEC-compliant package or module (whether as part of a SIMM, DIMM,
multi chip package, memory card or other memory module or
package).
“ Stack DRAM
Product ” means any memory comprising Stack DRAM, whether
in die or wafer form.
“
Subsidiary ” means with respect to any specified
Person, any other Person that, directly or indirectly, including
through one or more intermediaries, is controlled by such specified
Person.
“ Supply
Agreement ” means that certain Supply Agreement among
NTC, Micron and the Joint Venture Company, dated as of November 26,
2008, as subsequently amended and restated effective as of April 1,
2009, as the same may be amended from time-to-time.
“ Taiwan
” shall have the meaning set forth in the preamble to this
Agreement.
“ Taiwan
GAAP ” means GAAP used in the ROC, as in effect from time
to time, consistently applied for all periods at issue.
“ Technology
Transfer Agreement ” means that certain Technology
Transfer Agreement among NTC, Micron and the Joint Venture Company,
dated as of the Closing Date.
“ Third
Party ” means any Person other than NTC, Micron, the
Joint Venture Company or any of their respective Subsidiaries.
“
Transfer ” shall have the meaning set forth in Section
9.1(a) of this Agreement.
“ Transfer
Notice ” shall have the meaning set forth in Section
9.3(a) of this Agreement.
“ Transfer
Period ” shall have the meaning set forth in Section
9.3(d) of this Agreement.
“
Transferor ” shall have the meaning set forth in
Section 9.3(a) of this Agreement.
“ Transition
Period ” shall have the meaning set forth in Section
2.1(b) of this Agreement.
“ Trench
Contract Process ” means the 90nm and 70nm trench based
DRAM process technology previously transferred to the Joint Venture
Company under that certain Know How
Transfer Agreement among the Joint Venture
Company, NTC and Qimonda, dated November 13, 2002, as
amended.
“ Trench
DRAM ” means a dynamic random access memory cell that
functions employing a capacitor arrayed predominantly below the
surface of the semiconductor substrate.
“ Trench
DRAM Boundary Conditions ” means, with respect to any
fab, a requirement that, at any point in time:
[***].
“ Trench
DRAM Designs ” means, with respect to a Trench DRAM
Product, the corresponding design components, materials and
information.
“ Trench
DRAM Exception Products ” means [***].
“ Trench
DRAM Manufacturing Capacity ” means, with respect to each
of the Joint Venture Company’s fabs, the total work minutes
available for each Process Node to manufacture Trench DRAM Products
at such fab.
“ Trench
DRAM Products ” means trench based dynamic random access
memory products manufactured by the Joint Venture Company in
accordance with the Trench Contract Process.
“ TTA
68-50 ” means that certain Technology Transfer Agreement
for 68-50 nm Process Nodes between Micron and the Joint Venture
Company dated as of October 11, 2008.
“ TTLA
” shall have the meaning set forth in Section 11.5(a) of this
Agreement.
“ [***]
” shall have the meaning set forth in Section 11.5(a) of this
Agreement.
“ U.S.
GAAP ” means GAAP used in the United States, as in effect
from time to time.
“
Vice-Chairman ” means the Vice Chairman of the Board
of Directors.
“ Wafer
Start ” means the initiation of manufacturing services
with respect to a wafer.
“
Wholly-Owned Subsidiary ” of a Person means a
Subsidiary, all of the shares of stock or other ownership interests
of which are owned, directly or indirectly through one or more
intermediaries, by such Person, other than a nominal number of
shares or a nominal amount of other ownership interests issued in
order to comply with requirements that such shares or interests be
held by one or more other Persons, including requirements for
directors’ qualifying shares or interests, requirements to
have or maintain two or more stockholders or equity owners or other
similar requirements.
Section 1.2
Certain Interpretive Matters .
(a)
Unless the context requires otherwise, (i) all references to
Sections, Articles, Exhibits, Appendices or Schedules are to
Sections, Articles, Exhibits, Appendices or
Schedules of or to this Agreement, (ii) each
accounting term not otherwise defined in this Agreement has the
meaning commonly applied to it in accordance with Taiwan GAAP,
(iii) words in the singular include the plural and vice versa, (iv)
the term “ including ” means “
including without limitation, ” and (v) the terms
“ herein, ” “ hereof, ”
“ hereunder ” and words of similar import shall
mean references to this Agreement as a whole and not to any
individual section or portion hereof. Unless otherwise
denoted, all references to “ $ ” or dollar
amounts will be to lawful currency of the United States of
America. All references to “ day ” or
“ days ” mean calendar days.
(b)
No provision of this Agreement will be interpreted in favor of, or
against, either JV Party by reason of the extent to which (i) such
JV Party or its counsel participated in the drafting thereof, or
(ii) such provision is inconsistent with any prior draft of this
Agreement or such provision.
(c)
For purposes of the definition of Boundary Conditions, the
following fabs collectively shall constitute a single
fab: (i) the existing fabs commonly referred to as
“Fab 1” and “Fab 2” at Hwa Ya Technology
Park, Taoyuan, Taiwan, and (ii) the fab leased as of the Closing
Date by MeiYa Technology Corporation ( MeiYa Technology
Corporation [Translation from Chinese] ), a company
incorporated under the laws of the ROC, and located at Hwa Ya
Technology Park, Taoyuan, Taiwan, so long as such fab is operated
by the Joint Venture Company.
ARTICLE 2
THE JOINT VENTURE COMPANY
Section 2.1
General Matters .
(a)
Name . The JV Parties shall use best efforts to
cause the Joint Venture Company to be named Inotera Memories,
Inc. [Translation from Chinese] in Chinese and “
Inotera Memories, Inc. ” in English. The JV
Parties acknowledge and agree to use best efforts to cause the
Joint Venture Company to be continued as a
company-limited-by-shares under the laws of the ROC.
(b)
Purpose . During the period commencing on the
date hereof and ending on the date that the Joint Venture
Company’s fabs are fully converted (as determined based on
the delivery of the final Trench DRAM Product manufactured by the
Joint Venture Company) from the manufacture of Trench DRAM Products
to the manufacture of Stack DRAM Products (the “
Transition Period ”), the JV Parties shall use best
efforts to cause the purpose of the Joint Venture Company to be the
manufacture and sale of certain Trench DRAM Products and Stack DRAM
Products exclusively for and to Micron and NTC. After
the Transition Period, the JV Parties shall use best efforts to
cause the purpose of the Joint Venture Company to be the
manufacture and sale of certain Stack DRAM Products exclusively for
and to Micron and NTC; and the entry of, or engagement in, any such
lawful transactions or activities in furtherance of the foregoing
purpose.
(c)
Business Scope . Subject to amendment by the JV
Parties from time to time and any necessary approval from the
relevant Governmental Entities, the JV Parties shall use best
efforts to cause the registered business scope of the Joint Venture
Company to be as set forth in its business license, other
incorporation documents and the Articles of Incorporation, all as
mutually agreed upon by the JV Parties.
(d)
Principal Place of Business . The JV Parties
shall use best efforts to cause the registered address and the
principal place of business of the Joint Venture Company to be at
Hwa-Ya Technology Park, Taoyuan, Taiwan, ROC, unless the Board of
Directors changes the registered address or the principal place of
business of the Joint Venture Company to such other place as the
Board of Directors may from time to time determine. The
Joint Venture Company may maintain offices and places of business
at such other place or places within or outside of Taiwan as the
Board of Directors may deem to be advisable.
Section 2.2
Articles of Incorporation . In case of any
conflict or inconsistency between the provisions of the Articles of
Incorporation and the terms of this Agreement, the terms of this
Agreement shall prevail as between the JV Parties to the extent
permitted under the Applicable Laws. The JV Parties
shall exercise all rights available to them to give effect to the
terms of this Agreement to the extent permissible under the
Applicable Laws and to take such reasonable steps to amend the
Articles of Incorporation as soon as practicable to the extent
necessary to remove any such conflict or inconsistency.
Section 2.3
Maintenance of Joint Venture Company . The JV
Parties shall use best efforts to cause the Board of Directors, or
officers of the Joint Venture Company, to make or cause to be made,
from time to time, filings and applications to the relevant
Governmental Entities in the ROC to amend any registration, license
or permit of the Joint Venture Company as the Board of Directors
reasonably considers necessary or appropriate under the Applicable
Laws so as to ensure (a) the continuation of the Joint Venture
Company as a company-limited-by-shares under the laws of the ROC
and (b) compliance with the terms of this Agreement.
Section 2.4
Governmental Approvals . In the event that either
JV Party takes or desires to take any action contemplated by this
Agreement that could reasonably be expected to result in an event
or transaction, including the purchase by either JV Party of Shares
pursuant to Section 9.3, 12.3, 12.6 or 13.1, which event or
transaction, as to each of the foregoing, would require either JV
Party to make a filing, notification or any other required or
requested submission under antitrust, competition, foreign
investment, company or fair trade law (any such event or
transaction, a “ Filing Event ” and any such
filing, notification, or any such other required or requested
submission, a “ Filing ” and any such law, a
“ Regulatory Law ”), then:
(a)
the JV Party taking such action, in addition to complying with any
other applicable notice provisions under this Agreement, shall
promptly notify the other JV Party of such Filing Event, which
notification shall include an indication that Filings under the
Regulatory Law will be required;
(b)
notwithstanding any provision to the contrary in this Agreement, a
Filing Event may not occur or close until after any applicable
waiting period (including any extension thereof) under the
Regulatory Law, as applicable to such Filing Event, shall have
expired or been terminated, and all approvals
under regulatory Filings in any jurisdiction that shall be
necessary for such Filing Event to occur or close shall have been
obtained, and any applicable deadline for the occurrence or closing
of such Filing Event contained in this Agreement shall be delayed,
so long as both JV Parties are proceeding diligently in accordance
with this Section 2.4 to seek any such expiration, termination or
approval, and so long as there are no other outstanding conditions
preventing the occurrence or closing of the Filing Event;
(c)
the JV Parties shall, and shall cause any of their relevant
Affiliates to:
(i)
as promptly as practicable, make their respective Filings under the
applicable Regulatory Law;
(ii)
promptly respond to any requests for additional information from
the applicable Governmental Entity;
(iii)
subject to applicable Regulatory Laws, use commercially reasonable
efforts to cooperate with each other in the preparation of, and
coordinate, such Filings (including the exchange of drafts between
each party’s outside counsel) so as to reduce the length of
any review periods;
(iv)
subject to applicable Regulatory Laws, cooperate and use their
respective commercially reasonable efforts to take, or cause to be
taken, all actions and to do, or cause to be done, all things
necessary under Regulatory Law in connection with such Filing
Event, including using commercially reasonable efforts to provide
information, obtain necessary exemptions, rulings, consents,
clearances, authorizations, approvals and waivers, and effect
necessary registrations and filings;
(v)
subject to applicable Regulatory Laws, use their commercially
reasonable efforts to (a) take actions that are necessary to
prevent the applicable Governmental Entity from filing an action
with a court or Governmental Entity that, if the Governmental
Entity prevailed, would restrict, enjoin, prohibit or otherwise
prevent or materially delay the consummation of the Filing Event,
including an action by any such Governmental Entity seeking a
requirement to (i) sell, license or otherwise dispose of, or hold
separate and agree to sell or otherwise dispose of, assets,
categories of assets or businesses of either JV Party, the Joint
Venture Company, or any of their respective Subsidiaries; (ii)
terminate existing relationships and contractual rights and
obligations of either JV Party, the Joint Venture Company or any of
their respective Subsidiaries; (iii) terminate any relevant joint
venture or other arrangement; or (iv) effectuate any other change
or restructuring of either JV Party or the Joint Venture Company
(as to each of the foregoing, a “ Divestiture Action
”), and (b) contest and resist any action, including any
legislative, administrative or judicial action, and to have
vacated, lifted, reversed or overturned any order that restricts,
enjoins, prohibits or otherwise prevents or materially delays the
occurrence or closing of such Filing Event; and
(vi)
subject to applicable Regulatory Laws, prior to the making or
submission of any analysis, appearance, presentation, memorandum,
brief, argument, opinion or proposal by or on behalf of either JV
Party in connection with proceedings under or relating to
the applicable Regulatory Law, consult and
cooperate with one another, and consider in good faith the views of
one another, in connection with any such analyses, appearances,
presentations, memoranda, briefs, arguments, opinions and
proposals, and provide one another with copies of all material
communications from and filings with, any Governmental Entities in
connection with any Filing Event;
(d)
notwithstanding anything to the contrary in this Section 2.4,
nothing in this Section 2.4 shall require either JV Party or its
respective Affiliates, or the Joint Venture Company, to take any
Divestiture Action; and
(e)
if the Filing Event is prevented from occurring or closing as a
result of any applicable Regulatory Laws, after exhausting all
efforts required under this Section 2.4 to obtain the necessary
approval of any applicable Governmental Entity, then the JV Parties
shall negotiate in good faith to agree upon an alternative event or
transaction that would be permissible under applicable Regulatory
Laws, and would approximate, as closely as possible, the intent and
contemplated effect of the original Filing Event.
ARTICLE 3
CAPITALIZATION; CONTRIBUTION OF CAPITAL
Section 3.1
Authorized Capital . In accordance with Section
6.5, the JV Parties shall use best efforts to cause the authorized
capital of the Joint Venture Company to be amended from time to
time, as may be necessary or desirable to consummate the
transactions contemplated herein and in accordance with the
Applicable Laws of the ROC.
Section 3.2
Capital Contributions .
(a)
No Obligation . Unless otherwise agreed by the JV
Parties in writing, neither JV Party shall be obligated to make any
contribution of capital to the Joint Venture Company.
(b)
Future Cash Requirements . Until the second
anniversary of the Closing, the JV Parties shall use commercially
reasonable efforts consistent with their fiduciary duties to the
Joint Venture Company, to cause the Joint Venture Company to fund
future cash requirements through cash flow generated by operations
of the Joint Venture Company or external debt financing rather than
the issuance of Shares or other equity or equity-linked securities
of the Joint Venture Company.
Section 3.3
Unilateral Purchase of Shares . Except as
otherwise provided herein, MNL shall not, and shall not permit
Micron or its Subsidiaries to, and NTC shall not, and shall not
permit its Subsidiaries to, directly or indirectly acquire Shares
or any other equity-linked securities of the Joint Venture Company
from any Person other than the Joint Venture Company, without the
prior written consent of the other JV Party. MNL and NTC
shall use their respective best efforts to prevent the Joint
Venture Company from issuing Shares or any other equity-linked
security of the Joint Venture Company, directly or indirectly, to
an Affiliate of MNL or NTC without the prior written consent of
both JV Parties. If an Affiliate of MNL or of NTC
acquires Shares or any other equity-linked security of the Joint
Venture Company, whether from the Joint
Venture Company or otherwise (except as a
result of a Permitted Transfer as contemplated by Section 9.2), the
JV Parties shall, notwithstanding anything to the contrary in
Sections 5.1(b) or (c), use their respective commercially
reasonable efforts to cause the directors on the Board of Directors
to be allocated between them, consistent with the principles set
forth in Sections 5.1(b) and (c), as if the Shares or equity-linked
securities owned by such Affiliates were owned one half by MNL and
one half by NTC (and treating, for purposes of this sentence, any
director whose election was controlled by an Affiliate of a JV
Party as being a director designated by such JV
Party). Notwithstanding the foregoing, if the JV Parties
fail to achieve the foregoing result after using such commercially
reasonable efforts, no JV Party shall be in breach of this section
or have any liability for such failure.
ARTICLE 4
BANK LOANS
If the Board of
Directors shall at any time determine that there is a need for the
Joint Venture Company to obtain external financing, the JV Parties
will assist the Joint Venture Company to seek and obtain commercial
loans or other financing arrangements from banks and other
financial institutions on competitive market terms and otherwise as
the Joint Venture Company may reasonably require. None
of the JV Parties (or any of their representatives) shall be
obligated under this Agreement or otherwise to provide any
guarantee or security for any such loans in favor of the Joint
Venture Company, unless specifically agreed in writing by such JV
Party (or its duly authorized representative).
ARTICLE 5
MANAGEMENT OF THE JOINT VENTURE COMPANY
Section 5.1
Board of Directors .
(a)
Power and Authority . The JV Parties shall use
best efforts to cause the Board of Directors to be responsible for
the overall management of the business, affairs and operations of
the Joint Venture Company. The JV Parties shall use best
efforts to cause the Board of Directors to have all the rights and
powers given to it under the Articles of Incorporation and the
Applicable Laws of the ROC, including without limitation, the ROC
Company Law.
(b)
Number of Directors . The JV Parties shall use
best efforts to cause the Articles of Incorporation to provide for
the Joint Venture Company to have a Board of Directors consisting
of twelve (12) directors (provided that the JV Parties shall use
best efforts to reduce such number for each director withdrawn in
accordance with Section 5.1(b)(iv)). The JV Parties
shall use best efforts to cause the directors to be designated and
elected as follows (subject, and giving effect, to any prior
withdraw of one or more directors in accordance with Section
5.1(b)(iv)):
(i)
The JV Parties agree to vote, in any meeting of the shareholders
where directors are elected, in a coordinated manner, to elect all
of the Persons designated by the JV Parties in accordance with
Section 5.1(b) above.
(ii)
If for any reason the JV Parties shall be unable to elect twelve
(12) Persons (or such lesser number of Persons as is applicable
after taking into account the application of Section 5.1(b)(iv)) to
be their representatives to serve as directors pursuant to Section
5.1(b), the JV Parties shall vote, in a coordinated manner, to
elect as many of such Persons as possible, consistent with the
principles set forth in Section 5.1.
(d)
Removal and Replacement . Any of the
representatives serving as directors on the Board of Directors may
be removed or replaced for any reason by the JV Party that
designated him or her. If any such representative
serving on the Board of Directors is so removed or replaced or
otherwise ceases to serve as a director on the Board of Directors,
the JV Party that designated such representative shall be entitled
to designate another Person to fill such vacancy, and the JV
Parties shall use best efforts to have such replacement elected as
a director.
(e)
Compensation . The directors, except for the
independent directors, if any, shall not receive any compensation
for serving as such, although the Board of Directors may authorize
the reimbursement of expenses reasonably incurred in connection
with the performance of their duties.
(f)
Meetings of the Board of Directors; Notice . The
JV Parties shall use best efforts to cause or affect the
following:
(i)
The Board of Directors shall meet from time to time but at least
once per Fiscal Quarter in Taiwan (or such other place as the Board
of Directors may decide) by not less than fourteen (14) days notice
in writing. Emergency meetings of the Board of Directors
may be convened from time to time by the Chairman, or the
Vice-Chairman pursuant to Section 5.2(c), by not less than two (2)
Business Days notice in writing.
(ii)
A notice of a meeting of the Board of Directors shall contain the
time, date, location and agenda for such meeting. The
presence of any director at a meeting (including attendance by
means of video conference) shall constitute a waiver of notice of
the meeting with respect to such director.
(iii)
The Board of Directors shall cause written minutes to be prepared
of all actions, determinations and resolutions taken by the Board
of Directors and a copy thereof sent to each director and
supervisor of the Joint Venture Company within twenty (20) days of
each meeting.
(g)
Proxy and Video Conference . The JV Parties shall
use best efforts to cause the Joint Venture Company to allow
that: (i) in any case where a director cannot attend a
meeting of the Board o
