EXHIBIT 2.2.
EXECUTION COPY
STANDSTILL AGREEMENT
AGREEMENT entered into as of December 5, 2001 between Siemens
Aktiengesellschaft, a German corporation (the "Trustor"), and First Union Trust
Company, National Association with registered offices in Wilmington, Delaware
(the "Trustee") of the Trust, formed pursuant to the Trust Agreement (as defined
below) under the laws of the State of Delaware (the "Trust").
ARTICLE 1
DEFINITIONS
SECTION 1.01. Definitions.
The following terms, as used herein, have the following meanings:
"Affiliate" means any person that directly or indirectly, through one
or more intermediaries, controls or is controlled by or is under common control
with the person specified as defined in the Securities Act of 1933.
"Capital Stock" means the stated capital divided into common shares of
Infineon carrying the right to vote ("stimmberechtiges Grundkapital").
"Control" (including, "control", "controlled by", "controlling",
"under common control") means the possession, direct or indirect, of the power
to direct or cause the direction of the management and policies of a person
whether through the ownership of voting securities, by contract, or otherwise.
"Infineon" means Infineon Technologies AG.
"Person" means an individual, corporation, limited liability company,
joint venture, partnership, association, trust, trustee, unincorporated entity,
organization, enterprise or government (including its departments or agencies).
"Restricted Securities" means any (1) Capital Stock and any other
securities or rights convertible into or exchangeable or exercisable for such
Capital Stock and (2) any other voting securities of Infineon or securities or
rights convertible into or exchangeable or exercisable for voting securities of
Infineon held by a Person other than the Trustor and/or its Affiliates as of the
date first above written.
"Trust Agreement" means the Irrevocable Trust Agreement by and among
Trustor and Trustee, entered into as of December 5, 2001.
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ARTICLE 2
COVENANTS OF TRUSTOR AND THE TRUST
SECTION 2.01. Acquisition of Restricted Securities. During the term
of this Agreement, the Trustor agrees that it will not and it will not permit
its Affiliates to - whether directly or indirectly - (i) purchase or otherwise
acquire, or agree or offer to purchase or otherwise acquire ownership of any
Restricted Securities or (ii) procure for itself in any other way, any third
party's voting rights from Capital Stock; (except in either case as may result
from a dividend of such shares on securities which dividend is distributed to
Trustor or its Affiliates pro rata with other holders of such securities).
ARTICLE 3
TERMINATION
SECTION 3.01. Termination. This Agreement shall terminate upon the
occurrence of termination of the Trust Agreement.
ARTICLE 4
MISCELLANEOUS
SECTION 4.01. Notices. All notices, requests and other communications
to either the Trustor or Trustee shall be made in writing (including telecopy or
similar writing) and shall be given,
if to Trustor, to:
Siemens Aktiengesellschaft
Xxxxxxxxxxxxxxxxxx 0
X-00000 Xxxxxxx
Xxxxxxx
Attn: Chief Treasurer and Corporate Legal Department
Fax Number: 0000-00-000-00000 / 0000-00-000-00000
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if to the Trustee, to:
First Union Trust Company,
National Association
One Xxxxxx Square
000 Xxxx Xxxxxx, Xxxxx 000
Xxxxxxxxxx, XX 00000
X.X.X.
Attn: Corporate Trust Office
Fax Number: 0-000-000-0000
or such other address or telecopier number as such person may hereafter specify
for the purpose by notice to the other person hereto. Each such notice, request
or other communication shall be effective when delivered at the address
specified in this section 4.01.
SECTION 4.02. Amendments; No Waivers. Any provision of this Agreement
may be amended or waived by Trustor and Trustee only in writing, provided,
however, that any amendment or waiver of Section 2.01 and 3.01 requires the
mutual written consent of the Trustor, Infineon and the Trustee.
No failure or delay by the Trustor or Trustee in exercising any right,
power or privilege hereunder shall operate as a waiver thereof nor shall any
single or partial exercise thereof preclude any other or further exercise
thereof or the exercise of any other right, power or privilege. The rights and
remedies herein provided shall be cumulative and not exclusive of any rights or
remedies provided by law.
SECTION 4.03. Counterparts; Effectiveness. This Agreement may be
signed in any number of counterparts, each of which shall be an original, with
the same effect as if the signatures thereto and hereto were upon the same
instrument. This Agreement shall become effective as of the date first above
written.
SECTION 4.04. Governing Law. This Agreement shall be governed by and
construed in accordance with the law of the Federal Republic of Germany without
giving effect to its principles or rules of conflicts of laws.
SECTION 4.05. Arbitration. All disputes, controversies or differences
arising out of or in connection with this Agreement including any question
regarding its existence, validity or termination (hereinafter referred to as
"disputes") shall be settled by an amicable effort on the part of the Trustor,
Trustee and/or Infineon as the case may be (for purposes of this Section 4.05
each a "Party" and collectively the "Parties"). An attempt to arrive at a
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settlement shall be deemed to have failed as soon as one of the Parties notifies
the other Party or Parties in writing. If such an attempt has failed, all
disputes (other than claims under the federal securities laws of the United
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States) shall be finally settled pursuant to the rules of arbitration of the ICC
by three arbitrators in accordance with said rules. Each opposing Party shall
nominate one arbitrator to be confirmed by the International Court of
Arbitration under the applicable rules. Both arbitrators should agree on the
third arbitrator within 30 days. Should the two arbitrators fail, within the
above time limit to reach agreement on the third arbitrator, he shall be
appointed by the International Court of Arbitration. Where there are multiple
parties, whether as claimant or as respondent, the arbitral tribunal shall be
constituted in accordance with Article 10 of the ICC rules. The site of
arbitration shall be Frankfurt am Main, Germany. Unless the Parties otherwise
agree, the procedural law of this place shall apply where the rules are silent.
The language to be used in the arbitration procedure shall be English. The
arbitration court should also decide on the liability of costs including the
reimbursement of reasonable attorney fees.
SECTION 4.06. Final Provisions. If a provision of this Agreement
should be without effect in whole or in part, the validity of the remaining
provisions of this Agreement shall remain unaffected thereby. The Trustor and
Trustee shall promptly agree upon a valid and legally enforceable provision that
comes as close as possible to the economic meaning and purpose of the (partly or
in whole) ineffective or unenforceable provision in order to replace such
provision.
TRUSTOR
Siemens Aktiengesellschaft
By____________________________________
Name: Heinz-Xxxxxxx Xxxxxxxxx
Title: Chief Financial Officer
By____________________________________
Name: Xxxxxxx Xxxxxxxxx
Title: Corporate Controller
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TRUSTEE
First Union Trust Company, National Association
By____________________________________
Name: Xxxxxx X. Xxxxxx, Xx.
Title: Vice President
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