Exhibit 10.17(b)
TSMC/OmniVision Confidential
CONFIDENTIAL TREATMENT
LETTER OF COMFORT
To: Taiwan Semiconductor Manufacturing Company
Date: October 29, 2003
Re: Commitments to TSMC
Dear Sirs,
We, OmniVision Technologies, Inc., are aware that you have entered into
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Shareholders' Agreement dated October 29,2003 (the "Agreement") with OmniVision
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International Holding Ltd. (the "Company"), a 100% owned subsidiary of ours, we
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hereby undertake that during the term of the Agreement:
1. we will continue to maintain our current shareholding in the Company and we
undertake to inform you in advance of any decision being taken to dispose of
the whole or part of our shareholding in the Company; provided that, in no
event shall we [***].
2. we will ensure that the Company at all times meet its obligations in
conformity with standards of prudence generally accepted for its field of
business;
3. we will not take any action which will result in the Company being unable to
carry on its business or otherwise being unable to meet all of its
obligations from time to time to you and we hereby undertake to advise you
forthwith of any adverse circumstances which may materially affect the
continuing operation of the Company;
4. we will use our reasonable best endeavors to provide the Company with such
support and resources as may be required for the Company to meet its
obligations to you under the Agreement;
5. we will furnish you with our consolidated annual audited financial
statements, and with such additional financial information relating to the
Company as may be reasonably required pursuant to the terms of the
Agreement, including the Company's annual audited financial statements;
provided however, that TSMC shall be responsible for reasonable costs
associated with preparing any such additional financial information;
6. in case the Company shall be unable for any reason to meet its obligations
from time to time to you, we agree that we will either:
a) immediately make funds available, or have funds made available, to the
Company in an amount sufficient to enable the Company to meet its
obligations to you; or
b) take such other acts as shall be required to enable the Company to meet its
obligations to you; and
7. We will also commit the "Covenant not to compete" as set forth in the
Article 10 of the Agreement.
*** Confidential treatment requested pursuant to a request for confidential
treatment filed with the Securities and Exchange Commission. Omitted
portions have been filed separately with the Commission.
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CONFIDENTIAL TREATMENT
Section 16.11 of the Agreement shall apply to this letter of comfort with
respect to the issues of governing law, jurisdiction and venue. You and we
agree that neither party shall disclose the existence or any content of this
letter of comfort to any third party, unless such disclosure is made to (a)
legal and financial advisers on a need-to-know basis; or (b) governmental
authorities, but only to the extent necessary for compliance with applicable
laws including securities laws.
Yours faithfully,
For and on behalf of
OmniVision Technologies, Inc.
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By:
Name:
Title:
Acknowledged and agreed:
Taiwan Semiconductor Manufacturing Company
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By:
Name:
Title:
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