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EXHIBIT 99.1
JOINT VENTURE AGREEMENT
BETWEEN
SONICBLUE INCORPORATED,
SONICA3, INC.
AND
VIA TECHNOLOGIES, INC.
DATED AS OF JANUARY 3, 2001
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TABLE OF CONTENTS
PAGE
1. DEFINITIONS...............................................................................1
1.1. "Articles of Association"...........................................................1
1.2. "Board of Directors"................................................................1
1.3. "Business Day"......................................................................1
1.4. "Class A Common Shares," "Class B Common Shares" and "Class C Common Shares"........1
1.5. "Confidential Information"..........................................................1
1.6. "Independent Accounting Firm".......................................................2
1.7. "Investment Agreement"..............................................................2
1.8. "Memorandum of Association".........................................................2
1.9. "Transfer"..........................................................................2
2. INCORPORATION.............................................................................2
2.1. Formation of JV.....................................................................2
2.2. The Name of JV......................................................................2
2.3. Principal Offices...................................................................2
2.4. Capital Contributions; Liabilities..................................................3
2.5. Reimbursement of Incorporation Expenses.............................................3
2.6. Profit-Based Earn Out...............................................................4
3. MANAGEMENT OF JV..........................................................................4
3.1. Meetings and Resolutions of Stockholders.............................................4
3.2. Election of Directors................................................................4
3.3. Officers.............................................................................4
3.4. Statement of Policy..................................................................4
3.5. Accounting and Reporting Obligations.................................................5
4. RIGHTS AND OBLIGATIONS OF THE PARTIES.....................................................5
4.1. Reports and Statements...............................................................5
4.2. Transfer of Shares...................................................................5
4.3. Confidentiality......................................................................6
5. TERM AND TERMINATION......................................................................8
5.1. Closing Date.........................................................................8
5.2. Term.................................................................................8
5.3. Termination Events...................................................................8
5.4. Nonsolicitation......................................................................8
6. MISCELLANEOUS.............................................................................8
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TABLE OF CONTENTS
(continued)
PAGE
6.1. Force Majeure.......................................................................8
6.2. Assignment..........................................................................9
6.3. Survival............................................................................9
6.4. Notices.............................................................................9
6.5. Export Control......................................................................10
6.6. Entire Agreement....................................................................10
6.7. Modification........................................................................11
6.8. Severability........................................................................11
6.9. No Waiver...........................................................................11
6.10. Governing Law and Dispute Resolution................................................11
6.11. Language............................................................................11
6.12. No Agency...........................................................................11
6.13. No Third Party Beneficiaries........................................................11
6.14. Headings............................................................................12
6.15. Construction and Reference..........................................................12
6.16. Governmental Approvals..............................................................12
6.17. Counterparts........................................................................12
Exhibits:
Exhibit A Articles of Association
Exhibit B Memorandum of Association
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JOINT VENTURE AGREEMENT
This Joint Venture Agreement (this "Agreement"), dated as of January
3, 2001 between SONICblue Incorporated, a corporation organized under the laws
of the State of Delaware and Sonica3, Inc., a Delaware corporation (collectively
"SONICblue" unless otherwise indicated herein), and VIA Technologies, Inc., a
corporation organized under the laws of Taiwan ("VIA").
INTRODUCTION
A. SONICblue is engaged in the manufacture and sale of graphic
accelerators and has a wide and rich experience in this field of industry.
B. VIA is engaged in the manufacture and sale of core logic chipsets
and has a wide and rich experience in this field of industry.
C. SONICblue and VIA desire to form a corporation under the laws of
the Cayman Islands ("JV") for the purpose of manufacturing and distributing
graphics products and conducting related research and development activities.
SONICblue Incorporated has designated Sonica3, Inc. to hold the Class A Common
Shares of JV pursuant to Section 2.2(f) of the Investment Agreement (as defined
below).
IN CONCLUSION, in consideration of the foregoing premises and the
covenants contained herein, the parties agree as follows:
1. DEFINITIONS. Unless otherwise defined herein, capitalized terms
used in this Agreement shall have the meanings ascribed to them in the
Investment Agreement (as defined below). In addition, for the purpose of this
Agreement, the following terms shall have the meanings hereinafter set forth:
1.1. "Articles of Association" shall mean the Articles of
Association of JV attached hereto as Exhibit A, as amended from time to time.
1.2. "Board of Directors" shall mean the board of directors of JV
as from time to time constituted pursuant to the terms of this Agreement.
1.3. "Business Day" shall mean any day except a Saturday, Sunday
or other day on which commercial banks in New York are authorized or required by
law or executive order to close.
1.4. "Class A Common Shares," "Class B Common Shares" and "Class
C Common Shares" are defined in the Memorandum of Association.
1.5. "Confidential Information" shall mean any trade secrets,
know-how, data, formulas, processes, source code, netlists, Intellectual
Property or other nonpublic information, tangible or intangible, of one party
that becomes known by the other party.
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Any information exchanged by the parties and entitled to protection under this
Agreement shall be identified as such by appropriate marking as "Confidential"
on any documents exchanged, or, if the disclosure has been made orally or if it
is not feasible to xxxx the disclosed information, then the disclosing party
shall identify the information as "Confidential" at the time of disclosure and,
within two (2) weeks of the disclosure, shall confirm in writing the
confidential nature of such disclosure.
1.6. "Independent Accounting Firm" shall mean a certified public
accounting firm qualified under the laws of the United States that, under the
rules of the American Institute of Certified Public Accountants and the SEC, is
independent from the Person retaining such firm.
1.7. "Investment Agreement" shall mean the Amended and Restated
Investment Agreement, between SONICblue and VIA, dated as of August 28, 2000.
1.8. "Memorandum of Association" shall mean the Memorandum of
Association of JV attached hereto as Exhibit B, as amended from time to time.
1.9. "Transfer", when used as a verb, shall mean to sell, pledge,
assign, encumber, dispose of or otherwise transfer (including by merger,
testamentary disposition, interspousal disposition pursuant to a domestic
relations proceeding or otherwise or otherwise by operation of law), or, when
used as a noun, means a sale, pledge, assignment, encumbrance, disposition, or
other transfer (including a merger, testamentary disposition, interspousal
disposition pursuant to a domestic relations proceeding or otherwise or other
transfer by operation of law).
2. INCORPORATION.
2.1. Formation of JV. On the day prior to the Closing Date and
after receipt of all Government Approvals, the Parties shall form JV by filing
the Memorandum of Association and Articles of Association in the forms attached
hereto as Exhibits A and B. On the Closing Date, the parties shall cause JV to
execute this Agreement, the Investment Agreement, and the other JV Transaction
Agreements to which it is a party and, thereupon, it shall become a party to
this Agreement and the Investment Agreement, and the other JV Transaction
Agreements to which it is a party.
2.2. The Name of JV. The name of JV shall be set forth in the
Memorandum of Association as S3 Graphics Co., Ltd.
2.3. Principal Offices. The principal office and place of
business of JV shall be located at 0000 Xxxxxxx Xxxxxxx Xxxxxxxxx, Xxxxx Xxxxx,
Xxxxxxxxxx, or at such other place as the Board of Directors may from time to
time designate. The registered office of the company shall be at the offices of
Xxxxxxx Xxxxx, Xxxxxxx & Xxxxxxxxx, X.X. Xxx 000 GT, Zephyr House, Xxxx Street,
Grand Cayman, Cayman Islands, B.W.I.
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2.4. Capital Contributions; Liabilities.
2.4.1 The authorized capital stock of JV shall consist of
the number and classes of shares set forth in the Memorandum of Association and
each class of shares shall have such rights, preferences and privileges, and the
qualifications, limitations or restrictions thereof, as are described in the
Memorandum of Association. The parties hereby agree to form JV through the
filing of the Memorandum of Association and Articles of Association, which
provide that the Class A shareholders the Class B shareholders and Class C
shareholders shall have fifty percent (50%), forty-eight percent (48%) and two
percent (2%), respectively, of the voting power of JV irrespective of the actual
number of outstanding shares of such class with respect to the election of
directors and own one tenth of one percent (.1%), ninety-nine and four tenths
percent (99.4%), and one-half of one percent (.5%), respectively, of the
economic interest of JV. SONICblue or its designee shall own all outstanding
shares of Class A stock and JV shall not, except for Class B shares and Class C
shares, authorize any other class of shares with rights to vote for the election
of directors.
2.4.2 SONICblue shall contribute the Graphics Chip Business
Assets to such entity or entities as JV designates and execute and deliver all
of the JV Transaction Agreements to which it is a party, and JV shall issue to
SONICblue Incorporated or its designee 100,000,000 shares of its Class A Common
Shares.
2.4.3 VIA or its designee shall contribute to JV the cash
and/or securities set forth in Section 2.2(c) of the Investment Agreement and
execute and deliver all of the JV Transaction Agreements to which it is a party,
and JV shall issue to VIA or its designee 30,000,000 shares of its Class B
Common Shares. VIA shall retain all of its shares of Class B Common Shares in
one entity.
2.4.4 Wallvision Electronic Inc. shall contribute to JV $
337,525 and JV shall issue to Wallvision Electronic Inc. 200,000 shares of Class
C Common Shares.
2.4.5 VIA shall make such additional contributions of cash
and/or securities to JV as JV and VIA shall from time to time determine are
necessary or advisable. Subject to the terms of the Investment Agreement, JV
shall assume the Assumed Liabilities. No other liabilities or obligations of
SONICblue of any nature, whether known or unknown, whether fixed or contingent,
accrued or unaccrued, shall be assumed by JV, and such liabilities and
obligations shall remain the responsibility of SONICblue.
2.5. Reimbursement of Incorporation Expenses. JV shall reimburse
the party hereto acting as the incorporator for reasonable expenses incurred
directly by it in connection with the incorporation of JV to the extent
permitted under the laws of the Cayman Islands.
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2.6. Profit-Based Earn Out. JV shall pay SONICblue $100 million
in each of fiscal years 2001 and 2002 if JV earns annual net operating income
(before income taxes, extraordinary transactions and non-recurring items) in
excess of $500 million in each of such fiscal years determined in accordance
with GAAP. Such payment shall be in cash and shall be paid within 10 business
days following the release of JV's audited financial statements for such
applicable fiscal years.
3. MANAGEMENT OF JV.
3.1. Meetings and Resolutions of Stockholders. Meetings of
shareholders may be called from time to time in accordance with the Articles of
Association, and convened in accordance with the provisions thereof.
3.2. Election of Directors. JV shall be administered by a Board
of Directors composed of six (6) directors. The Board of Directors shall be
divided into three classes of two each. One class of directors shall be subject
to reelection at each annual meeting of the stockholders. The initial members of
the Board of Directors and their respective reelection year shall be as follows:
Class I Class II Class III
(Term Expires in 2001) (Term Expires in 2002) (Term Expires in 2003)
---------------------- ---------------------- ----------------------
Xxxx Xxxx Xxxxxxxx Xxxxx
Tzu-Mu Lin Xxxxxxx Xxxx Xxxxxxx Xxxxxxxxx
Wen-Xxx Xxxx
3.3. Officers.
3.3.1 The Board of Directors shall appoint the officers of
JV and vest them with such titles and powers, as required by Applicable Law.
3.3.2 Each of the parties hereto shall cause the directors
it has nominated to exercise their voting rights as members of the Board of
Directors to elect the following persons as the initial officers of JV:
Chief Executive Officer: Wen-Xxx Xxxx
Chief Financial Officer: Xxxxx Xxx
3.4. Statement of Policy.
3.4.1 The parties hereto intend that the business and affairs of
JV be carried on and conducted in a sound, prudent and constructive manner for
the purpose of building a successful and financially strong corporation.
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3.4.2 The day-to-day operations of JV shall be managed by the
officers appointed under Section 3.3.2 above and supervised by the Board of
Directors. Such operations shall be conducted in accordance with the policies
established by the Board of Directors and pursuant to such resolutions as the
Board of Directors may from time to time adopt.
3.5. Accounting and Reporting Obligations.
3.5.1 JV's fiscal year shall be the 12 month period ending on
December 31.
3.5.2 The Board of Directors shall designate an Independent
Accounting Firm.
3.5.3 The annual accounting report of JV shall be audited at the
expense of JV by its Independent Accounting Firm in accordance with generally
accepted auditing standards.
4. RIGHTS AND OBLIGATIONS OF THE PARTIES.
4.1. Reports and Statements. JV shall provide the following reports
and statements to the parties within the time periods set forth below:
(a) Within 45 days after the close of each fiscal quarter, a
report on booking and billing quarterly results, balance sheet, statement
of operations and cash flow statement.
(b) Within 3 months after the end of each fiscal year, a report
on booking and billing annual results, balance sheet, statement of
operations, cash flow statement and statement of shareholders equity.
4.2. Transfer of Shares. No shares of Class A Common Shares shall be
Transferred for consideration or otherwise other than to a party hereto or a
subsidiary or designee of a party to this Agreement unless the other
shareholder(s) consent(s) in writing to such Transfer. If SONICblue or Sonica3
proposes to Transfer any shares of Class A Common Shares, then VIA and JV shall
have a right of first refusal (the "Right of First Refusal") to purchase some or
all of such shares of Class A Common Shares proposed to be Transferred.
SONICblue or Sonica3 shall give a written notice (the "Transfer Notice") to VIA
and JV describing fully the proposed Transfer including the number of shares
proposed to be Transferred, the proposed Transfer price and the name and address
of the proposed transferee. The Transfer Notice shall be signed both by
SONICblue or Sonica3 and by the proposed transferee and must constitute a
binding commitment of both such parties for the Transfer of such Class A Common
Shares. VIA or JV shall exercise this Right of First Refusal by delivery of a
notice of exercise to SONICblue or Sonica3 within 30 days after the receipt of
the
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Transfer Notice by SONICblue or Sonica3. Such notice shall indicate the number
of shares of Class A Common Shares VIA and JV wish to purchase under this Right
of First Refusal. SONICblue or Sonica3 shall then sell to VIA and JV on a date
set by VIA or JV which is not more than 30 days after the date of its response
notice the number of shares set forth in the response notice at a price per
share equal to the proposed per share Transfer price and on the payment terms
set forth in the Transfer Notice. If VIA and JV elect to purchase none or less
than all of the shares of Class A Common Shares to be Transferred by SONICblue
or Sonica3, SONICblue or Sonica3 may Transfer all of such shares, or the balance
of such shares, as the case may be, to the proposed transferee on the terms set
forth in the Transfer Notice. If the proposed Transfer price or the terms of
payment set forth in the Transfer Notice changes, or if the sale of the Class A
Common Shares is not consummated with the proposed transferee within 30 days of
JV's or VIA's response notice, SONICblue or Sonica3 shall be required to
reinstitute the above procedures if it intends to Transfer its Class A Common
Shares on such different terms or after the aforesaid 30-day period.
4.3. Confidentiality.
4.3.1 Except as expressly authorized by the disclosing party,
each party agrees not to disclose or permit the disclosure or use by others of
any Confidential Information of the disclosing party, and agrees that it will
use such Confidential Information only for the purpose of its Graphics Chip
Business. The restrictions on use and disclosure of Confidential Information
shall not apply to the extent such Confidential Information (i) becomes a matter
of public knowledge through no action or inaction of the party receiving the
Confidential Information, (ii) was in the receiving party's possession before
receipt from the party providing such Confidential Information, (iii) is
rightfully received by the receiving party from a third party without any duty
of confidentiality, (iv) is disclosed to a third party by the party providing
the Confidential Information without a duty of confidentiality on the third
party, (v) is disclosed with the prior written approval of the party providing
such Confidential Information, or (vi) is independently developed by the
receiving party without any use of the other party's Confidential Information.
Disclosure of the other party's Confidential Information by the receiving party
shall not constitute a material breach of this Agreement, if the disclosing
party can prove that the disclosure occurred despite the receiving party's
exercise of the same degree of care used by the receiving party to safeguard its
own similar type of Confidential Information, but in no event less than a
reasonable degree of care, and that the receiving party has used best efforts to
minimize any adverse effects resulting from such disclosure and to prevent any
further use or unauthorized disclosure.
4.3.2 In furtherance, and not in limitation of the foregoing
Section 4.3.1, each party agrees to do the following with respect to any such
Confidential Information: (i) exercise the same degree of care to safeguard the
confidentiality of, and prevent the unauthorized use of, such information as
that party exercises to safeguard the confidentiality of its own similar type of
Confidential Information; (ii) restrict disclosure
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of such information to those of its employees and agents who have a "need to
know" and, with prior written approval of the disclosing party, those of its
third party contractors who have a "need to know," and (iii) instruct, require
and obtain the written agreement of such employees, agents and subcontractors to
maintain the confidentiality of such information and not to use such
Confidential Information except as expressly permitted. Each party further
agrees not to remove or destroy any proprietary or confidential legends or
markings placed upon any documentation or other materials.
4.3.3 The terms and conditions of this Agreement are Confidential
Information, provided, however, that either party may disclose this Agreement:
(a) to its legal and financial advisers on a need-to-know basis; (b) to
third-party financing sources on a need-to-know basis and subject to a
non-disclosure agreement; and (c) to the extent necessary to comply with
Applicable Law, including, but not limited to SEC regulations, provided that the
party proposing to make such disclosure shall, if possible, provide prior notice
to the other party and an opportunity to reasonably contest the need for such
disclosure. In addition, either party may disclose the general terms and
conditions of this Agreement (but not the Agreement itself) to customers of JV's
products under a non-disclosure agreement.
4.3.4 The obligations under this Section 4.3 shall not prevent
the parties from disclosing the Confidential Information or terms of this
Agreement to any Governmental Authority as required by law (provided that the
party intending to make such disclosure in such circumstances has given the
other party prompt notice prior to making such disclosure so that the other
party may seek a protective order or other appropriate remedy prior to such
disclosure and cooperates fully with such other party in seeking such order or
remedy).
4.3.5 Each party shall be free to use for any purpose (including,
but not limited to, use in the development, manufacture, marketing and
maintenance of its own products and services) the Residuals (as defined below)
resulting from access to or work with Confidential Information, provided that
the party maintains the confidentiality of the Confidential Information as
provided herein, and nothing herein shall be deemed to grant a license under any
patents that may cover such Residuals. The term "Residuals" shall mean
information in non-tangible form that may be inadvertently retained by persons
who have had rightful access to the Confidential Information, including the
ideas, concepts, know-how or techniques contained therein. Notwithstanding the
provisions of this Section 4.3.5, neither party may avoid its obligations toward
a particular item of Confidential Information merely by having a person commit
such item to memory so as to reduce it to a non-tangible form.
The obligations under this Section 4.3 shall apply with respect to any
Confidential Information for a period of five (5) years from the date of
disclosure of such Confidential Information to the other party, unless with
respect to any particular Confidential
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Information the providing party in good faith notifies the receiving party that
a longer period shall apply, in which case the obligations under this Section
4.3 with respect to such Confidential Information shall apply for such longer
period.
5. TERM AND TERMINATION.
5.1. Closing Date. This Agreement shall come into force on the Closing
Date and shall remain in effect until terminated in accordance with the terms of
this Section 5.
5.2. Term. The term of this Agreement shall be perpetual unless
otherwise provided for in this Agreement.
5.3. Termination Events. This Agreement shall terminate:
5.3.1 If the Investment Agreement terminates, whether before or
after the Closing; or
5.3.2 If SONICblue or its successor-in-interest by operation of
law sells, assigns, transfers, pledges or otherwise disposes of the Class A
Common Stock pursuant to the terms of this Agreement or the Class A Shares
Option Agreement.
5.4. Nonsolicitation. So long as a party or its Affiliate(s) holds
shares in JV, except as otherwise agreed by the parties, such party and its
Affiliate(s) shall be prohibited from soliciting for employment or recommending
for employment any person employed by the other party, an Affiliate of the other
party or by JV. The foregoing restrictions shall not apply to or be breached by
(i) advertising of open positions, participating in job fairs and comparable
activities, or other forms of soliciting candidates for employment which are
general in nature and not directed specifically at any such employees, (ii)
responding to unsolicited inquiries about employment opportunities or
possibilities from job placement agencies or other agents acting for
unidentified principals, or (iii) responding to unsolicited inquiries about
employment opportunities from any individual.
6. MISCELLANEOUS.
6.1. Force Majeure. No party shall be liable for failure to perform
(other than payment of amounts due), in whole or in material part, its
obligations under this Agreement, if such failure is caused by acts of God,
earthquakes, fires, natural disasters, explosions, declared public states of
emergency due to acts of public enemy, riots, civil commotion and insurrection,
or any other similar catastrophic casualty, occurrence, condition, event or
circumstance not reasonably within the excused Party's control and which could
not have been anticipated and avoided by reasonable measures; provided, however,
that Force Majeure shall not include any action or failure to act by the
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Government of Taiwan or any agency, committee or subdivision thereof, including,
without limitation, any act, order or injunction against (or failure to approve,
where such approval is legally required to accomplish) the transfer of funds or
property pursuant to, or the consummation of any other action contemplated by,
this Agreement
6.2. Assignment. Except as provided herein or in the Investment
Agreement, neither this Agreement nor any of the rights and obligations created
hereunder may be assigned, transferred, pledged, or otherwise encumbered or
disposed of, in whole or in part, whether voluntary or by operation of law, or
otherwise, by either party without the prior written consent of the other party,
and any attempt to do so, contrary to the terms of this Agreement, shall be null
and void.
6.3. Survival. Without limiting any provision in any of the JV
Transaction Agreements, the obligations of the parties pursuant to Sections 2.5
(Reimbursement of Incorporation Expenses), 2.6 (Profit-Based Earn Out), 4.3
(Confidentiality), 5.4 (Nonsolicitation), 6.3 (Survival), 6.4 (Notices), and 6.6
through 6.17 shall survive the termination of this Agreement.
6.4. Notices. All notices, requests, consents, demands, instructions,
approvals and other communications hereunder shall be in writing and shall be
validly given, made or served, if delivered personally or sent by mail,
recognized courier service, telex or telefax (confirmed by mail or recognized
courier service in the case of telefaxes), and shall be deemed effective when
actually received, as follows:
If to SONICblue Incorporated or to Sonica3, Inc., to:
SONICblue Incorporated/ or to Sonica3, Inc., as applicable
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
With copies to:
Pillsbury Winthrop LLP
0000 Xxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Attention: Xxxxx X. del Xxxxx, Esq.
Fax: (000) 000-0000
If to VIA, to:
VIA Technologies, Inc.
0X, Xx. 000 Xxxxx-Xxxxx Xxxx
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Xxxxx-Xxxx,Taipei
Taiwan
Attention: President
Telecopier: 886-2-2218-7970
With a copies to:
Xxxxxx Xxxxxx White & XxXxxxxxx LLP
000 Xxxxxxxxxx Xxxxxx
Xxxx Xxxx, Xxxxxxxxxx 00000-0000
Attention: Xxxxx X. X'Xxxx, Esq.
Fax: (000) 000-0000
If to JV, to:
S3 Graphics Co., Ltd.
c/o VIA Technologies, Inc.
0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxx Xxxxx, Xxxxxxxxxx 00000
Attention: President
Fax: (000) 000-0000
With copies to S3 and VIA as above provided or to such other address
or addresses as any party may from time to time designate in writing delivered
in a like manner to the other parties hereto.
6.5. Export Control. Without in any way limiting the provisions of
this Agreement, each of the parties agrees that no products procured from or
technical information disclosed by the other party or JV under this Agreement
are intended to or shall be exported or re-exported, directly or indirectly, to
any destination restricted or prohibited by Applicable Law without necessary
authorization by the Governmental Authorities.
6.6. Entire Agreement. This Agreement, the Investment Agreement and
the JV Transaction Agreements and the exhibits and schedules hereto and thereto,
embody the entire agreement and understanding between the parties with respect
to the subject matter hereof, superseding, as of the Closing Date, all previous
and contemporaneous communications, representations, agreements and
understandings, whether written or oral, in existence on the date this Agreement
is executed. Neither party has relied upon any representation or warranty of the
other party except as expressly set forth herein.
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6.7. Modification. This Agreement and the surviving provisions thereof
may not be modified or amended, in whole or part, except by a writing executed
by duly authorized representatives of both parties.
6.8. Severability. If any term or provision of this Agreement shall,
for any reason, be held to be invalid, illegal or unenforceable, such provision
shall be deemed severed from this Agreement. The remaining provisions of this
Agreement shall remain in full force and effect, and shall be construed and
interpreted in a manner that corresponds as closely as possible with the
intentions of the parties as expressed in this Agreement.
6.9. No Waiver. Except to the extent that a party hereto may have
otherwise agreed in writing, no waiver by that party of any condition of this
Agreement or breach by the other party of any of its obligations or
representations hereunder shall be deemed to be a waiver of any other condition
or subsequent or prior breach of the same or any other obligation or
representation by the other party, nor shall any forbearance by the first party
to seek a remedy for any noncompliance or breach by the other party be deemed to
be a waiver by the first party of its rights and remedies with respect to such
noncompliance or breach.
6.10. Governing Law and Dispute Resolution. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
without regard to conflicts of law. For purposes of any action or proceeding
involving this Agreement, JV hereby expressly submits to the jurisdiction of all
federal and state courts located in the State of California and consents to be
served with any process or paper by registered mail or by personal service
within or without the State of California.
6.11. Language. This Agreement, and the exhibits and schedules hereto,
including the Memorandum of Association and Articles of Association, are in the
English language, which language shall be controlling in all respects.
6.12. No Agency. This Agreement shall not constitute an appointment of
either party as the legal representative or agent of the other party, nor shall
either party have any right or authority to assume, create or incur in any
manner any obligation or other liability of any kind, express or implied,
against, in the name or on behalf of, the other party. Nothing herein or in the
transactions contemplated by this Agreement shall be construed as, or deemed to
be, the formation of a partnership by or among the parties. No party has the
authority to make, on behalf of the JV or the other party, an election for the
JV to be taxable as other than a corporation for United States federal income
tax purposes.
6.13. No Third Party Beneficiaries. No provisions of this Agreement
are intended to, or shall be construed to, confer upon or give to any person
other than the
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parties hereto and thereto, any rights, remedies or other benefits under or by
reason of such agreements.
6.14. Headings. The section and other headings contained in this
Agreement are for convenience of reference only and shall not be deemed to be a
part of this Agreement or to affect the meaning or interpretation of this
Agreement.
6.15. Construction and Reference. Words used in this Agreement,
regardless of the number or gender specifically used, shall be deemed and
construed to include any other number, singular or plural, and any other gender
masculine, feminine or neutral, as the context shall require. Unless otherwise
specified, all references in this Agreement to Sections are deemed references to
be corresponding Sections in this Agreement, and all references in this
Agreement to Exhibits are references to the corresponding Exhibits attached to
this Agreement.
6.16. Governmental Approvals. Each of the parties shall use its
reasonable best efforts to obtain all Governmental Approvals and shall cooperate
with the other parties in good faith.
6.17. Counterparts. This Agreement may be executed in counterparts,
each of which shall be deemed an original, and all of which shall be deemed to
constitute one and the same instrument.
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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their duly authorized representatives on the date set forth
above.
SONICblue Incorporated VIA Technologies, Inc.
----------------------------------------- ------------------------------------------
Signature Signature
By: /s/ Xxx Xxxxxxxxx By: /s/ Xxxxxxxx Xxxxx
------------------------------------- --------------------------------------
Xxx Xxxxxxxxx Wen-Xxx Xxxx*
Chief Executive Officer President and Chief Executive Officer
*By power of attorney
Date: Date:
------------------------------------ -------------------------------------
Acknowledged and adopted by:
S3 Graphics Co., Ltd. Sonica3, Inc.
/s/ Xxxx-Xxxx Xxxxxx Xxx /s/ Xxx Xxxxxxxxx
----------------------------------------- ------------------------------------------
Signature Signature
By: By:
------------------------------------- --------------------------------------
Xxxx-Xxxx Xxxxxx Xxx Xxx Xxxxxxxxx
Chief Financial Officer Chief Executive Officer
Date: Date:
------------------------------------ -------------------------------------
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