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Exhibit
10.43
Redacted
Version
Confidential Treatment
Marked
NON-COMPETITION
AGREEMENT
THIS NON-COMPETITION
AGREEMENT (this “ Agreement ”) is made and
entered into as of June 30, 2003, by and among Advanced Micro
Devices, Inc., a Delaware corporation (“ AMD ”),
AMD Investments, Inc., a Delaware corporation (“ AMD
Investments ,” and together with AMD, the “ AMD
Entities ”), Fujitsu Limited, a corporation organized
under the laws of Japan (“ Fujitsu ”), Fujitsu
Microelectronics Holding, Inc., a Delaware corporation (“
Fujitsu Sub ,” and together with Fujitsu, the “
Fujitsu Entities ,” and collectively with the AMD
Entities, the “ Entities ”), and FASL LLC, a
Delaware limited liability company (the “ Joint
Venture ” and collectively with the Entities, the “
Parties ”).
RECITALS:
A. Concurrently herewith, the
Parties have entered into an Amended and Restated Limited Liability
Company Operating Agreement (the “ Operating Agreement
”), a Contribution and Assumption Agreement (the “
Contribution Agreement ”) and certain related
agreements.
B. One of the material
conditions precedent to the willingness of the Parties to enter
into the Operating Agreement and the Contribution Agreement is that
the Parties have agreed to execute, deliver and be bound by this
Agreement.
NOW, THEREFORE , in
consideration of the premises, the mutual promises and covenants of
the Parties set forth herein, and other good and valuable
consideration, the receipt and sufficiency of which is hereby
acknowledged, the Parties, intending to be legally bound, agree as
follows:
1. Certain Definitions;
Interpretation .
(a) In addition to the terms
defined elsewhere in this Agreement, the following capitalized
terms shall have the following meanings when used herein (and
capitalized terms not defined herein have the meanings assigned to
them in the Operating Agreement):
“ Affiliate
” of a Person, means any other Person which, directly or
indirectly, controls, is controlled by, or is under common control
with, such Person. The term “control” (including, with
correlative meaning, the terms “controlled by” and
“under common control with”), as used with respect to
any Person, means the possession, directly or indirectly, of the
power to direct or cause the direction of the management and
policies of such Person, whether through the ownership of voting
securities, by contract or otherwise. The Parties acknowledge and
agree that neither Fujitsu nor AMD is presently controlled by any
other Person, and that the Joint Venture and its Subsidiaries shall
not be deemed to be (a) Affiliates of the AMD Entities or (b)
Affiliates of the Fujitsu Entities.
“ Competing
Business ” means any business engaged in the development,
production, manufacture, marketing, distribution, promotion or sale
of Stand-Alone NVM Products in any country in the world in which
the Joint Venture conducts its business; provided ,
however , that (i) the Entities’ respective Membership
Interests and the conduct of the Joint
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.
Venture Business (as defined in the
Contribution Agreement), (ii) Fujitsu’s and its
Affiliates’ development, production, manufacture, marketing,
distribution, promotion and/or and sales of Ferro-electric
non-volatile memory technology and products and (iii) the
performance by AMD and its Affiliates and/or Fujitsu and its
Affiliates of their respective obligations under agreements between
AMD and/or its Affiliates and the Joint Venture and/or its
Subsidiaries or between Fujitsu and/or its Affiliates and the Joint
Venture and/or its Subsidiaries ( provided that any such
agreement is not entered into for purposes of circumventing the
intent of this Agreement), shall each be deemed not to constitute a
Competing Business.
“ NVM ”
means a non-volatile memory device wherein information stored in a
memory cell is maintained without power consumption and the write
time (including erase time if there is an erase operation prior to
a write operation) exceeds the read time allowing the device to
function primarily as a reading device.
“ Stand-Alone NVM
Product ” means a semiconductor product (including a
single chip or a multiple chip or system product) containing NVM
dedicated to data storage wherein all circuitry (including logic
circuitry) contained therein is solely to accept, store, retrieve
or access information or instructions and cannot manipulate such
information or execute instructions.
(b) The following rules of
interpretation shall apply to this Agreement:
(i) The words
“hereof,” “herein,” “hereunder”
and similar words refer to this Agreement as a whole and not to any
particular provision of this Agreement. The term
“including” is not limited and means “including
without limitation.”
(ii) Unless otherwise noted,
all references to Sections, Schedules and Exhibits herein are to
Sections, Schedules and Exhibits of this Agreement. The titles,
captions and headings of this Agreement are inserted for
convenience of reference only and are not intended to be a part of
or to affect the meaning or interpretation of this
Agreement.
(iii) Unless otherwise
expressly provided herein, (a) references to a Person include its
successors and permitted assigns, (b) references to agreements
(including this Agreement) and other contractual instruments shall
be deemed to include all subsequent amendments, restatements and
other modifications thereto or supplements thereof and (c)
references to any statute or regulation are to be construed as
including all statutory and regulatory provisions consolidating,
amending, replacing, supplementing or interpreting such statute or
regulation.
2. Competition by AMD
Entities and their Affiliates with the Joint Venture . Subject
to Section 4(d), during the AMD Non-Competition Term, the AMD
Entities hereby covenant and agree not to (and AMD agrees to cause
its Affiliates not to), directly or indirectly, engage in a
Competing Business.
3. Competition by the
Fujitsu Entities and their Affiliates with the Joint Venture .
Subject to Section 5(d), during the Fujitsu Non-Competition Term,
the Fujitsu Entities hereby covenant and agree not to (and Fujitsu
agrees to cause its Affiliates not to), directly or indirectly,
engage in a Competing Business.
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4. Divestiture of
Competing Business by AMD Entities . During the AMD
Non-Competition Term, the AMD Entities hereby covenant and agree
that:
(a) If an AMD Entity or its
Affiliates (an “ AMD Acquiring Party ”) acquires
a majority equity or other majority ownership interest of a Person
whose principal line of business is not a Competing Business, but
which has a division or other operations constituting a Competing
Business (any such division or operations, an “ AMD
Acquired Interest ”), AMD shall (or, if applicable,
shall cause AMD Investments or its other applicable Affiliates to)
(i) promptly provide the Joint Venture and the Fujitsu Entities
with written notice of such acquisition (the “ AMD
Acquisition Notice ”) and (ii) provide the Joint Venture
with a right of first offer to acquire the AMD Acquired Interest,
such right to last for a period of sixty (60) days following the
Joint Venture’s receipt of the AMD Acquisition Notice (the
“ AMD Offer Period ”). During the AMD Offer
Period, AMD shall (or, if applicable, shall cause AMD Investments
or its other applicable Affiliates to) (A) provide the Joint
Venture with an opportunity to conduct reasonable due diligence on
the AMD Acquired Interest and (B) enter into exclusive discussions
with the Joint Venture concerning a sale of the AMD Acquired
Interest to the Joint Venture. The Joint Venture shall have the
right, but not the obligation, to make an offer to purchase all,
but not less than all, of the AMD Acquired Interest by providing
written notice to AMD (“ Joint Venture/AMD Offer
”) at any time prior to the end of the AMD Offer Period, such
written notice to include in reasonable detail the terms on which
the Joint Venture proposes to purchase the AMD Acquired
Interest.
(b) Any determination as to
whether to make a Joint Venture/AMD Offer, and the terms of such
Joint Venture/AMD Offer, shall be made by the Board of Managers. If
a Joint Venture/AMD Offer is made prior to the conclusion of the
AMD Offer Period, the AMD Acquiring Party shall have thirty (30)
days from its receipt of the Joint Venture/AMD Offer in which to
accept or reject the Joint Venture/AMD Offer by providing the Joint
Venture with written notice of its decision within such 30-day
period, such decision to be made by the AMD Acquiring Party in its
sole discretion. If the AMD Acquiring Party fails to provide the
Joint Venture with written notice of its decision within such
30-day period, the AMD Acquiring Party shall be deemed to have
rejected the Joint Venture/AMD Offer.
(c) If the Joint Venture does
not make a Joint Venture/AMD Offer prior to the conclusion of the
AMD Offer Period, or if the AMD Acquiring Party rejects a Joint
Venture/AMD Offer, the AMD Acquiring Party shall (and, if
applicable, AMD shall cause the AMD Acquiring Party to) take all
commercially reasonable steps to sell or otherwise divest the AMD
Acquired Interest as soon as reasonably practicable to an
unaffiliated Person following the conclusion of the AMD Offer
Period or the 30-day period referenced in Section 4(b), whichever
is later; provided, however , if the AMD Acquired Party
rejected a Joint Venture/AMD Offer pursuant to Section 4(b), the
terms of sale to the unaffiliated Person shall be no more favorable
than the terms set forth in the Joint Venture/AMD Offer. **** AMD
Acquiring Party **** the AMD Acquired Interest **** the AMD
Acquired Interest, **** the AMD Acquiring Party **** the AMD
Acquired Interest ****.
(d) The Parties agree that an
AMD Acquiring Party’s acquisition of a majority interest in a
Person whose principal line of business is not a Competing Business
but which has a division or operations that constitute a Competing
Business shall not be deemed to be a breach of the obligations set
forth in Section 2 for so long as AMD and/or its applicable
Affiliates are complying in all material respects with its
obligations under this Section 4.
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.
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5. Divestiture of
Competing Business by Fujitsu Entities . During the Fujitsu
Non-Competition Term, the Fujitsu Entities hereby covenant and
agree that:
(a) If a Fujitsu Entity or
its Affiliates (a “ Fujitsu Acquiring Party ”)
acquires a majority equity or other majority ownership interest of
a Person whose principal line of business is not a Competing
Business, but which has a division or other operations constituting
a Competing Business (any such division or operations, an “
Fujitsu Acquired Interest ”), Fujitsu shall (or, if
applicable, shall cause Fujitsu Sub or its other applicable
Affiliates to) (i) promptly provide the Joint Venture and the AMD
Entities with written notice of such acquisition (the “
Fujitsu Acquisition Notice ”) and (ii) provide the
Joint Venture with a right of first offer to acquire the Fujitsu
Acquired Interest, such right to last for a period of sixty (60)
days following the Joint Venture’s receipt of the Fujitsu
Acquisition Notice (the “ Fujitsu Offer Period
”). During the Fujitsu Offer Period, Fujitsu shall (or, if
applicable, shall cause Fujitsu Sub or its other applicable
Affiliates to) (A) provide the Joint Venture with an opportunity to
conduct reasonable due diligence on the Fujitsu Acquired Interest
and (B) enter into exclusive discussions with the Joint Venture
concerning a sale of the Fujitsu Acquired Interest to the Joint
Venture. The Joint Venture shall have the right, but not the
obligation, to make an offer to purchase all, but not less than
all, of the Fujitsu Acquired Interest by providing written notice
to Fujitsu (“ Joint Venture/Fujitsu Offer ”) at
any time prior to the end of the Fujitsu Offer Period, such written
notice to include in reasonable detail the terms on which the Joint
Venture proposes to purchase the Fujitsu Acquired
Interest.
(b) Any determination as to
whether to make a Joint Venture/Fujitsu Offer, and the terms of
such Joint Venture/Fujitsu Offer, shall be made by the Board of
Managers. If a Joint Venture/Fujitsu Offer is made prior to the
conclusion of the Fujitsu Offer Period, the Fujitsu Acquiring Party
shall have thirty (30) days from its receipt of the Joint
Venture/Fujitsu Offer in which to accept or reject the Joint
Venture/Fujitsu Offer by providing the Joint Venture with written
notice of its decision within such 30-day period, such decision to
be made by the Fujitsu Acquiring Party in its sole discretion. If
the Fujitsu Acquiring Party fails to provide the Joint Venture with
written notice of its decision within such 30-day period, the
Fujitsu Acquiring Party shall be deemed to have rejected the Joint
Venture/Fujitsu Offer.
(c) If the Joint Venture does
not make a Joint Venture/Fujitsu Offer prior to the conclusion of
the Fujitsu Offer Period, or if the Fujitsu Acquiring Party rejects
a Joint Venture/Fujitsu Offer, the Fujitsu Acquiring Party shall
(and, if applicable, Fujitsu shall cause the Fujitsu Acquiring
Party to) take all commercially reasonable steps to sell or
otherwise divest the Fujitsu Acquired Interest as soon as
reasonably practicable to an unaffiliated Person following the
conclusion of the Fujitsu Offer Period or the 30-day period
referenced in Section 5(b), whichever is later; provided,
however , if the Fujitsu Acquired Party rejected a Joint
Venture/Fujitsu Offer pursuant to Section 5(b), the terms of sale
to the unaffiliated Person shall be no more favorable than the
terms set forth in the Joint Venture/Fujitsu Offer. **** Fujitsu
Acquiring Party **** the Fujitsu Acquired Interest **** the Fujitsu
Acquired Interest, **** the Fujitsu Acquiring Party **** the
Fujitsu Acquired Interest ****.
Confidential treatment has been
requested for portions of th
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