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EXHIBIT 10.23
JOINT VENTURE AGREEMENT
REGARDING
THE
ESTABLISHMENT AND OPERATION
OF
TFS ELECTRONIC MANUFACTURING SERVICES SDN. BHD.
BY
AND
AMONG
TFS INTERNATIONAL, LTD.,
TFS INTERNATIONAL II, LTD.,
UNICO SYSTEMS SDN. BHD.,
UNICO HOLDINGS BERHAD
AND
TFS ELECTRONIC MANUFACTURING SERVICES SDN. BHD.
DATED APRIL 1, 2003
BAKER & MCKENZIE
660 HANSEN WAY
PALO ALTO, CA 94304
TEL: 650-856-2400
FAX: 650-856-9299
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JOINT VENTURE AGREEMENT
This JOINT VENTURE AGREEMENT (the
"Agreement") is made and entered into
effective as of April 1, 2003, by and among
TFS INTERNATIONAL, LTD., a Bermuda
exempted company with its registered office
in Hamilton, Bermuda ("TFS
International"), TFS INTERNATIONAL II,
LTD., a Bermuda exempted company with its
registered office in Hamilton, Bermuda
("TFS International II," with TFS
International and TFS International II
collectively referred to as "TFS") UNICO
SYSTEMS SDN. BHD., a Malaysian company with
its registered office in Kuala
Lumpur, Malaysia ("USSB") (each of TFS
International, TFS International II, and
USSB a "Member"), UNICO HOLDINGS BERHAD, a
Malaysian company with its registered
office in Kuala Lumpur, Malaysia
("Guarantor"), and TFS ELECTRONIC MANUFACTURING
SERVICES SDN. BHD., a Malaysian company
with its registered office in Kuala
Lumpur, Malaysia (the "Company").
RECITALS
A. TFS
International and TFS International II are wholly-owned
subsidiaries of Three-Five Systems, Inc., a Delaware
corporation
("Three-Five"). Three-Five is the parent corporation and sole
shareholder of ETMA, a corporation with its principal place of
business
in Redmond, Washington, involved in the business of electronic
manufacturing and support ("ETMA").
B.
Guarantor is the ultimate parent company of USSB and certain
other
Related Entities, as defined below, including Unico Technology
Sdn.
Bhd., which are in the business of electronics manufacturing
services
in Malaysia, and Guarantor desires to obtain the experience,
expertise,
and capital of TFS and ETMA in order to further such business. As
a
material inducement to TFS and the Company to enter into this
Agreement
and the transactions contemplated hereby, Guarantor agrees to
guaranty
the performance and obligations of USSB and USSB's and
Guarantor's
Related Entities under this Agreement and the Ancillary Agreements,
as
defined below.
C. The
Members desire to establish the Company as a joint venture
company
in Malaysia to carry out the Business, as defined below.
AGREEMENT
NOW, THEREFORE, intending to be legally
bound, the parties agree as follows:
1.
ADDITIONAL DEFINITIONS
The following terms will have the following
meanings as used in this Agreement:
a.
"Agreement" means this Joint Venture Agreement and all
Exhibits and Schedules attached hereto as amended, modified,
supplemented or restated from time to time.
b.
"Agreement Intellectual Property" means Intellectual Property
created as a result of activities of the Members or the
Company in carrying out each parties'
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obligations under this Agreement. Notwithstanding the above,
Agreement Intellectual Property does not include Background
IP.
c.
"Ancillary Agreements" means the agreements entered into in
connection with the transactions contemplated hereby,
including the Asset Transfer Agreement, the Equipment Lease
Agreement(s), the Tenancy Agreement(s), the Logistics and
Warehousing Agreement, the Trademark and Tradename License
Agreement(s), and the Sales and Marketing Agreement, referred
to in Sections 2(f) hereof.
d.
"Articles" means
the Memorandum and Articles of Association of
the Company to be amended and be effective as attached hereto
as EXHIBIT I.
e.
"Authority" means any nation or government, any state or other
political subdivision thereof; any entity, authority or body
exercising executive, legislative, judicial, regulatory or
administrative functions of or pertaining to government,
including any government authority, agency, department, board,
commission or instrumentality of such government or any
political subdivision thereof; any court, tribunal or
arbitrator; and any self-regulatory organization, including
the federal, state, and local governments of Malaysia.
f.
"Background IP" means Intellectual Property that is not
Agreement Intellectual Property and that each Member currently
owns or develops independent of this Agreement.
g.
"Board" means the Board of Directors of the Company as
existing from time to time.
h.
"Budget" means the approved budget of the Company forming part
of the Business Plan as defined below.
i.
"Business" means the business of electronics manufacturing
services, and businesses related or ancillary thereto,
including certain of the employees and real property,
equipment, and other assets of USSB and its Related Entities
to be transferred or leased to the Company pursuant to the
Ancillary Agreements, and as such business may be modified and
expanded by the Company from time to time.
j.
"Business Plan" means the Company's initial business plan for
carrying out its activities as approved by the parties and
attached hereto as SCHEDULE I, as such may be amended,
modified, or supplemented from time to time.
k.
"Confidential Information" means data and information relating
to the Company or information of a Member (which does not rise
to the level of a Trade Secret) and which has material value
to the Disclosing Party, as defined in Section 6(a), and is
not generally known to its competitors, disclosed to a
Recipient Party, as defined in Section 6(a), in writing and
designated confidential or, if disclosed to a Recipient Party
other than in writing, confirmed in writing and designated
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confidential within thirty (30) days of such disclosure.
Confidential Information does not include any data or
information that:
(i) is
available to the public or becomes available to
the public through no fault, unauthorized act or
omission by the Recipient Party;
(ii)
is known by the Recipient Party at the time of
disclosure, as shown by prior written records;
(iii) is
rightfully received by the Recipient Party from a
third party without a duty of confidentiality; or
(iv)
is developed by or for the Recipient Party
independent of the disclosure hereunder.
l.
"Consent" means any consent, approval, authorization, waiver,
permit, grant, franchise, concession, agreement, license,
certificate, exemption, order, registration, declaration,
filing, report, or notice of, with, or to the relevant party
or relevant Authority.
m.
"Governmental Approval" means any Consent of, with, or to any
government-related Authority.
n.
"Intellectual Property" refers to any Trade Secret and
know-how, including but not limited to scientific techniques,
technical discoveries and technical improvements, whether or
not patentable; trade names, whether or not registered;
copyrightable material, whether or not registered; original
designs; as well as patents, patent applications, trademarks,
trademark applications, copyright applications, registered
copyrights, utility patents; utility patent applications, and
similar rights recognized or granted by any region or country
in the world.
o.
"Licensed Background IP" means that Intellectual Property of
the Members as identified in SCHEDULE II attached hereto,
which Schedule shall be amended from time to time so that each
Member meets its obligations under this Agreement.
P.
"Loss" means any and all liabilities, damages, claims, costs,
expenses, judgements, interest and penalties, and other
expenses or losses, including reasonable attorneys',
accountants', and outside advisors' fees and disbursements
relating thereto.
q.
"Related Entity" or "Related Entities" means any entity or
entities: (i) in the case of TFS, a majority of the
outstanding voting securities or membership interest of which
is held, either directly or indirectly through another entity,
by Three-Five, or (ii) in the case of USSB, a majority of the
outstanding voting securities or membership interest of which
is held, either directly or indirectly through another entity,
by Guarantor.
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r.
"Trade Secrets" means information relating to the Company or
information of a Member, without regard to form (including,
but not limited to, technical or non-technical data, formulae,
patterns, compilations, programs, products, devices, methods,
techniques, drawings, blueprints, processes, financial data,
financial plans, product plans and/or lists of actual or
potential customers or suppliers), that is not commonly known
by or available to the public and that (i) the Disclosing
Party, derives economic value, actual or potential, from not
being known to, and not being readily ascertainable by proper
means by, other persons who can obtain economic value from its
disclosure or use, and (ii) is the subject of efforts that are
reasonable under the circumstances to maintain its secrecy,
disclosed to a Recipient Party in writing and designated as
"Proprietary Information" or "Trade Secret" or, if disclosed
to a Recipient Party other than in writing, confirmed in
writing and designated as "Proprietary Information" or "Trade
Secret" within thirty (30) days of such disclosure. Trade
Secret does not include any data or information that:
(i) is
available to the public or becomes available to
the public through no fault, unauthorized act or
omission by the Recipient Party;
(ii)
is known by the Recipient Party at the time of
disclosure, as shown by prior written records;
(iii) is
rightfully received by the Recipient Party from a
third party without a duty of confidentiality; or
(iv)
is developed by or for the Recipient Party
independent of the disclosure hereunder.
s.
"Work Product" means all information arising out of activities
under this Agreement whether in printed form, digitally stored
or encrypted materials, materials that may be perceived with
aid of a machine or stored in any other tangible form that was
not in existence prior to commencement of any work performed
by a Member under this Agreement (or any agreement entered
into pursuant to this Agreement) or is not thereafter
generated independently of such Member's performance under
this Agreement, including but not limited to Intellectual
Property.
2.
JOINT VENTURE COMPANY
a.
LEGAL FORM. The Company will (i) operate as a private limited
company, or "Sendirian Berhad" in Malaysia, (ii) adopt and use
the name "TFS Electronic Manufacturing Services Sdn. Bhd."
under the Trademark and Tradename License Agreements, (iii)
adopt as its Memorandum and Articles of Association the
Articles attached hereto as EXHIBIT I, and (iv) have its
principal place of business in Penang, Malaysia and its
registered office in Kuala Lumpur, Malaysia; or such other
place as the
Board may approve from time to time.
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b.
PURPOSE. The purpose of the Company will be to promote and
carry out the Business, and to transact such other lawful
trade or business as the Board may approve from time to time.
c.
AUTHORIZED CAPITAL. The authorized capital of the Company will
be 50,000,000 Ringgit divided into 50,000,000 ordinary shares
of 1
Ringgit each.
d.
INITIAL CAPITALIZATION. Upon Closing, TFS and/or its Related
Entities will subscribe for and purchase 14,400,000 shares,
representing 60% of the issued capital, in exchange for a cash
amount in $ equal to 14,400,000 Ringgit at the exchange rate
prevailing at the date of Closing (currently approximately
$3,789,400) USSB will subscribe for and purchase 9,600,000
shares,
representing 40% of the issued capital, in exchange
for 9,600,000 Ringgit (currently approximately $2,526,300).
All contributions will be used to fund the operations of the
Company as directed by the Board in accordance with the
Business Plan. Solely as a convenience to facilitate the
transactions contemplated by this Agreement, USSB may
subscribe for and purchase the initial outstanding two (2)
shares of the Company prior to the Closing, provided, however,
that USSB shall cause the Company to not engage in any act or
activity prior to the Closing that is not explicitly
contemplated by this Agreement or the Ancillary Agreements.
e.
EXPENSES. Each party will bear its respective accounting, tax,
and consulting costs and fees and attorneys' costs and fees
incurred in connection with its due diligence review and
preparation and negotiation of this Agreement and the
Ancillary Agreements. Attorneys' costs and fees, out-of-pocket
costs, and other fees and expenses directly related to the
Company and the conduct of the Business will be allocated to
and paid or reimbursed by the Company, including,
incorporation expenses, post-incorporation registrations,
Governmental Approvals, obtaining a manufacturing license,
"pioneer" tax status, other licenses, and similar matters.
f.
ANCILLARY AGREEMENTS. Concurrently herewith or as soon as
reasonably practicable and necessary following the execution
and delivery of this Agreement:
(i) the
Company and USSB or certain of its Related
Entities will enter into the following agreements:
(A) an asset
transfer agreement regarding
transfer of certain assets and employees
relating to the Business, in substantially
the form attached hereto as EXHIBIT II (the
"Asset Transfer Agreement");
(B) agreements
for the lease of equipment and
certain other personal property, in
substantially the form attached hereto as
EXHIBIT III (the "Equipment Lease
Agreement");
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(C) agreements
for the lease of real property
and facilities, in substantially the form
attached hereto as EXHIBIT IV (the "Tenancy
Agreement"); and
(D) an
agreement for logistics and warehousing
services to be provided to the Company by
IPC Global Sdn. Bhd. ("IPC"), in
substantially the form attached hereto as
EXHIBIT V (the "Logistics and Warehousing
Agreement").
(ii)
in addition, the Company and TFS or certain of its
Related Entities will enter into agreements for the
license and use of appropriate trademarks and
tradenames, in substantially the form attached hereto
as EXHIBIT VI. The Company will strictly adhere to
such agreements, including all payment and
intellectual property obligations. In addition the
Company and ETMA will enter into an agreement for
sales and marketing activities to be conducted by
ETMA, in substantially the form attached hereto as
EXHIBIT VII (the "Sales and Marketing Agreement").
g.
TREATMENT OF AND LICENSE OF INTELLECTUAL PROPERTY
(i) Each party
shall retain all its rights, title and
interest to any Background IP.
(ii)
Agreement Intellectual Property conceived solely by
one Member shall be solely owned by the conceiving
Member. Agreement Intellectual Property jointly
conceived by both Members without the involvement of
the Company shall be jointly owned by both Members,
such that each Member shall have an equal, undivided
interest in and to such joint Agreement Intellectual
Property, with the unilateral right to sublicense and
transfer ownership of such joint Agreement
Intellectual Property, subject to any limitations
imposed by this Agreement, and provided, however,
that a Member shall not have the right to sublicense
or otherwise transfer
the Agreement
Intellectual Property to any party that is not a
Related Entity and at least 99% of the outstanding
voting securities or membership interest of which is
held, either directly or indirectly through another
entity, by Three-Five in the case of TFS or Guarantor
in the case of USSB, without the prior written
consent of the other Member to the terms of such
sublicense or transfer.
(iii)
Intellectual Property currently owned or acquired or
developed by the Company, including Agreement
Intellectual Property conceived by the Member(s) and
the Company, shall be owned by the Company, and the
Company agrees to grant to each Member, at the
request of such Member, a worldwide, perpetual,
irrevocable, royalty-free license to such
Intellectual Property, with the right to sublicense
and transfer such Intellectual Property, provided,
however, that the Member shall not have the right to
sublicense or otherwise transfer such Intellectual
Property to
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any party that is not a Related Entity and at least
99% of the outstanding voting securities or
membership interest of which is held, either directly
or indirectly through another entity, by Three-Five
in the case of TFS or Guarantor in the case of USSB,
without the prior written consent of the other Member
to the terms of such sublicense or transfer.
(iv) For so long as a
Member remains a member of the
Company, each Member hereby grants the Company a
worldwide license to the Licensed Background IP owned
by such Member, to the extent that such Licensed
Background IP covers the products the Company
manufactures, uses, sells, and/or imports.
(v) Background
IP of either Member may not be used by any
other Member or shareholder for any purpose, except
to carry out the purposes of this Agreement.
h. WORK
PRODUCT
(i) The
Company shall own all Work Product created in
connection with the purposes and in accordance with
the terms of this Agreement. Work Product that is
jointly conceived by the Company and one or both
Member(s)
shall be jointly owned by the conceiving
parties. The Company hereby grants each Member a
worldwide, perpetual, royalty-free, irrevocable,
fully sub-licensable and fully paid license to all
Work Product that the Company owns or jointly owns
and which Work Product is created while the Member is
a member of the Company. Under the license granted
under this Section 2(h)(i) the Member shall have the
right to make, have made, use, sell, have sold, offer
to sell, import, have imported, any product,
composition, method or process covered by Work
Product for so long as the Company exists.
(ii)
Upon the reasonable request of the Company during or
after the term of this Agreement, each Member agrees
to take such further actions and provide such further
executed documents as may be necessary or desirable
to transfer, perfect and/or defend the Company's
ownership of the Work Product. In such regard, upon
the Company's request, each such Member will: (A)
execute, acknowledge and deliver any requested
affidavits and documents of assignment and
conveyance; (B) obtain and aid in the enforcement of
copyrights, trademarks and, if applicable, patents
with respect to the Work Product in any country; (C)
provide testimony in connection with any proceeding
affecting the right, title or interest of the Company
in any Work Product; and (D) perform any other acts
deemed necessary or desirable to carry out the
purposes of this Agreement. The Company shall
reimburse all reasonable out-of-pocket expenses
incurred by a Member at the Company's request in
connection with the foregoing. The Company shall have
the right to obtain and hold in its own name
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copyrights, trademarks, registrations, patents and
any other statutory or other legal protection
available to it with respect to a Work Product.
(iii) The
President shall, at the Company's expense and
under the direction of the Board, handle all claims
and defend any suit or proceeding brought against the
Company insofar as based on a claim that, without
alteration or further combination, any Work Product
developed by or on behalf of the Company pursuant to
this Agreement either (A) infringes any patent of any
jurisdiction, or (B) is defective or non-conforming.
i.
FUNDING AND BORROWING. Funding that the Company may require
beyond the initial cash contributions of the shareholders will
be obtained through the accumulation of earnings, additional
cash contributions from the shareholders, or appropriate
credit facilities. The Company will not borrow funds or
otherwise incur indebtedness outside the ordinary course of
business without the approval of the Board as set forth in the
Articles or this Agreement, except in connection with a
Member's exercise of rights under the following Section 2(j).
Unless otherwise agreed or as set forth in the following
Section 2(j), TFS and USSB will bear any loan, guarantee or
other financial assistance granted to or on behalf of the
Company in proportion to their shareholdings.
j.
ADDITIONAL CAPITAL CALL. If the Company's projected revenues
(with appropriate discount based on 12-month historical
results for bad debt, cancelled contracts, returned products,
and other relevant factors) plus liquid capital on hand are
insufficient to sustain the Company's operations for a period
of six (6) months based on the Company's Board-approved Budget
then in place, including capital expenditures, then in
addition to any Board actions that may be taken to reduce
expenditures (including employee reductions and restructuring
of supply and customer contracts and credit facilities), any
Member holding at least 10% of the outstanding voting stock of
the Company will have the right to demand an additional
capital call, upon the terms set forth below (the "Capital
Call"):
(i) The party
demanding the Capital Call (the "Calling
Shareholder") shall send written notice (the "Call
Notice") to each other shareholder (each a "Receiving
Shareholder") and the Company setting forth the
financial conditions of the Company and demanding
that the shareholders contribute additional capital
to the Company through the purchase of additional
shares.
(ii)
The Call Notice shall also set forth the amount of
such additional Capital Call, provided, however, that
the total amount of the Capital Call shall not be for
an amount less than $2,000,000 and shall be divided
among the shareholders proportionally to their
respective shareholdings in the Company at the time
of the Capital Call.
(iii)
Within 15 days, each Receiving Shareholder shall
provide notice to the Calling Shareholder and the
Company regarding the Receiving
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Shareholder's intent to either participate in the
Capital Call or demand that the Company retain an
internationally-recognized accounting firm (other
than the Company's regular retained accountants or
auditors or their affiliates) to review the Company's
financial situation (acting as an expert and not as
an arbitrator) and provide a report to the Company
not later than sixty (60) days from the date of the
Receiving Shareholder's demand. If such accounting
firm determines that the conditions set forth above
for a Capital Call have not been met, then the fees
and costs associated with such review shall be borne
by the Calling Shareholder, and the Call Notice will
be void and of no further legal effect. If such
accounting firm determines that the conditions for a
Capital Call have been met, then the fees and costs
associated with such review shall be borne by the
Receiving Shareholder demanding such review, and the
Receiving Shareholder shall also be obligated to
participate in the Capital Call as initially made by
the Calling Shareholder.
(iv)
If a shareholder does not participate in a Capital
Call, then such shareholder's additional share
allotment in the Capital Call shall be allocated
proportionally to the participating shareholders
resulting in a dilution of the non-participating
shareholder's percentage ownership in the Company.
(v) The
parties acknowledge that the Company's potential
need for additional capital is an integral part of
the transactions contemplated hereby, and agree that
as a further incentive for each shareholder to
participate in a Capital Call, that in the event a
Member holding at least 10% of the outstanding voting
stock of the Company immediately prior to the Capital
Call does not participate in any Capital Call made
within two (2) years from the date of this Agreement,
then the shares purchased by the participating
shareholders in the Capital Call shall be purchased
at par value, including any re-allocated shares of
the non-participating shareholder pursuant to the
preceding paragraph.
(vi)
In addition, in the event a Member holding at least
10% of the outstanding voting stock of the Company
immediately prior to the Capital Call does not
participate in the Capital Call, then the Member
participating in the Capital Call (the "Participating
Member") shall have the right, at its option and in
its sole discretion, to take, or cause the Company to
take, any or all of the following actions, which
shall not require shareholder or Board consent:
(A) cause the
Company to issue any additional
shares not purchased by the participating
shareholders, up to the amount required by
the Capital Call, to any third party as
identified by the Participating Member;
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(B) cause the
Company to borrow funds from the
Participating Member, up to the amount
required by the Capital Call, at an interest
rate equal to the lesser of LIBOR plus 500
basis points or the maximum allowable
interest rate under applicable law; and
(C) cause the
Company to enter into a lending
arrangement with an outside lender to borrow
funds on commercially available terms, up to
the amount required by the Capital Call.
(vii)
Notwithstanding anything to the contrary contained
herein, no shareholder shall be required to
participate in Capital Calls in an amount exceeding
in the aggregate an additional amount equal to such
shareholder's (or predecessor-in-interest's) initial
capital contribution at the Closing, such that no
shareholder will be required to invest in the
aggregate more than twice the amount of its initial
capital contribution at the Closing. The Company will
nevertheless be permitted to issue additional shares
outside of a Capital Call to the other shareholders
or third parties as determined by the Board and
subject to the shareholders' preemptive rights set
forth below.
k.
PREEMPTIVE RIGHTS AND SHARE TRANSFERS. Except as contemplated
under the
provisions regarding Capital Calls set forth above,
each shareholder will have a preemptive right to subscribe for
any additional shares of the Company in proportion to its
then-current shareholding. Neither party may pledge, assign,
sell or otherwise transfer or encumber any of its shares of
the Company to or in favor of any third party without the
prior consent of the other party, which consent will not be
unreasonably withheld. Pursuant to the foregoing, USSB will
have the right to sell any or all of its shareholding in the
Company to a venture capital firm having substantial expertise
in the electronics manufacturing services industry, subject to
the prior written consent of TFS, which consent will not be
unreasonably withheld. Except as contemplated in the preceding
sentence, each party will have a right of first refusal with
respect to any pledge, assignment, sale or other transfer or
encumbrance of the other party's shares in the Company.
l.
SHAREHOLDER MEETINGS AND RESOLUTIONS. Subject to the
requirements set forth in this Agreement, the Company will
convene shareholders meetings or submit resolutions to the
decision of the shareholders as required under the Articles. A
quorum for a meeting of shareholders shall require the
participation (whether in person or by telephone or video
conference) of at least two (2) shareholders holding a
majority of the outstanding voting shares of the Company,
including at least one (1) shareholder representing TFS and
one (1) shareholder representing USSB, provided, however, that
if a quorum is not present within thirty (30) minutes after
the time set for such meeting, the meeting shall stand
adjourned to the date and time fifteen (15) business days from
the originally-scheduled date and time, and the participation
of any one or more shareholder(s) holding not less than 30% of
the outstanding voting shares of the Company in such
rescheduled meeting shall constitute a quorum at such meeting.
Shareholder resolutions may
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be adopted by the affirmative vote of a majority of the shares
participating in any such vote, except that a super-majority
vote may be required for certain actions as set forth in the
Articles or in the attached SCHEDULE III ("Shareholder
Super-Majority Matters").
m.
BOARD OF DIRECTORS. Subject to the authority of the
shareholders, the Company's business and affairs will be
overseen by its Board, which will consist of five (5)
directors, unless such number is increased or decreased by
resolution of the shareholders. USSB initially will be
entitled to nominate two (2) directors for election to the
Board, who will be Tan Sri Ngan Ching Wen and Dato' Lai Pin
Yong. TFS initially will be entitled to nominate three (3)
directors for election to the Board, who will be Carl E.
Derrington, Jeffery D. Buchanan, and Joe D. Tanner. In the
event that a Member's shareholding falls below 30% of the
outstanding voting shares of the Company, such Member shall be
entitled to nominate only one (1) director for election to the
Board, provided, however, that if a Member's shareholding
falls below 10% of the outstanding voting shares of the
Company, such Member shall not be entitled to nominate any
directors for election to the Board. The shareholders will
elect an individual to serve as Chairman of the Board from
time to time, who shall initially be Joe D. Tanner. Each
director may be elected to serve any number of terms and will
serve in the manner set forth in the Articles. Each director
will serve without compensation, except as specifically
required by law, provided, however, that the Company will
reimburse a director's reasonable expenses incurred in
traveling to and attending meetings of the Board or any
committee of the Board, and provided, further, that the
Company will not be required to reimburse a director for
airfare in excess of the Malaysian Ringgit equivalent of
$2,600 for any single Board or committee meeting. A director
may be removed only by the shareholder nominating such
director for election to the Board, and any director who has
resigned or is removed shall not be entitled to any claims or
compensation against the Company related to such director's
service as a director of the Company, other than claims for
indemnification pursuant to any director indemnification
policy adopted by the Company.
n.
BOARD MEETINGS AND RESOLUTIONS. Subject to the requirements
set forth in this Agreement, the Board will meet or otherwise
take resolutions in the manner set forth in the Articles. All
Board meetings will be conducted, and resolutions will be
prepared, in English. A quorum for a meeting of the Board
shall require the participation (whether in person or by
telephone or video conference) of at least three (3)
directors, including at least one (1) director nominated for
election to the Board by TFS and one (1) director nominated
for election to the Board by USSB, provided, however, that:
(i) if a
quorum is not present within thirty (30) minutes
after the time set for such meeting, then the meeting
shall stand adjourned to a date and time determined
by the directors present, which shall be no later
than five (5) business days from the date and time of
the originally-scheduled meeting.
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The directors present shall promptly notify all
directors of the date and time of such rescheduled
meeting, and the participation of any two (2)
directors, including at least one (1) director
nominated for election to the Board by TFS, shall
constitute a quorum at such rescheduled meeting; and
(ii)
if a quorum is not present within thirty (30) minutes
after the time set for such rescheduled meeting, then
the rescheduled meeting shall stand adjourned to a
date and time determined by the directors present,
which shall be no later than five (5) business days
from the date and time of the rescheduled meeting.
The directors present shall promptly provide final
notice to all directors of the date and time of the
proposed final rescheduled meeting, and the
participation of any two (2) directors, including at
least one (1) director nominated for election to the
Board by TFS, shall constitute a quorum at such final
rescheduled meeting; and
(iii) if a
quorum is not present within thirty (30) minutes
after the time set for such final rescheduled
meeting, then such failure to achieve a quorum at the
final rescheduled meeting shall constitute an Option
Event
