TRANSITION AGREEMENT
EXHIBIT
10.68
CONFIDENTIAL
This
Transition Agreement (this “Agreement”), dated as
of October 11, 2008 (the “Effective Date”), is
made by and among Nanya Technology Corporation, a company incorporated under the
laws of the Republic of China (“NTC”), Qimonda AG, a
company incorporated under the laws of Germany (“Qimonda”), Inotera
Memories, Inc., a joint venture company limited by shares under the laws of the
Republic of China (the “Company”), Micron
Technology, Inc., a company incorporated under the laws of Delaware (“Micron” and, together
with NTC, Qimonda and the Company, the “Parties” and each a
“Party”). Capitalized
terms used but not defined herein shall have the meanings ascribed to such terms
in the Share Purchase Agreement (as defined below).
RECITALS
A. The
Company was established by NTC and Infineon Technologies AG, a predecessor in
interest to Qimonda (“Infineon”), pursuant
to that certain Joint Venture Agreement, dated November 13, 2002 (such
agreement, as amended by the first through fifth amendments thereto, the Letter
of Undertaking dated December 3, 2003 and the Letter of Agreement re Assignment
dated July 28, 2006, the “JV
Agreement”).
B. In
connection with the entry into the JV Agreement and the operation of the
Company, NTC, Infineon and the Company entered into certain agreements,
including (i) the Joint Product Development and Product Swap Agreement between
NTC and Infineon, as predecessor in interest to Qimonda, dated November 17, 2003
(including two Amendments and Letter Agreement re Assignment dated July 31,
2006), (ii) the Technical Information Exchange Agreement between NTC and Qimonda
dated September 24, 2007, (iii) the (110nm) License and (90/70 nm) Technical
Cooperation Agreement for DRAM Process Technology between NTC and Infineon, as
predecessor in interest to Qimonda, dated November 13, 2002 (including fourteen
Amendments, two Engineering Sample Agreements and Letter Agreement re Assignment
dated July 31, 2006), (iv) the 60nm Technical Cooperation Agreement between NTC
and Infineon, as predecessor in interest to Qimonda, for DRAM Process
Technology dated September 29, 2005 (including three Amendments of Letter
Agreement re Assignment dated July 31, 2006), (v) the Product Purchase and
Capacity Reservation Agreement among NTC, Infineon, as predecessor in interest
to Qimonda, and the Company dated July 15, 2003 (including three Amendments and
one Supplement), (vi) the Know How Transfer Agreement among NTC, Infineon, as
predecessor in interest to Qimonda, and the Company initially dated November 13,
2002 (including two Amendments) and (vii) the Service Agreement between NTC and
the Company dated July 15, 2003 (the “Ancillary JV
Agreements”).
C. In
accordance with the terms of the JV Agreement, Infineon assigned all of its
rights and, with certain exceptions, its obligations under the JV Agreement and
the Ancillary JV Agreements to Qimonda in connection with the transfer by
Infineon of all of its shareholdings in the Company to Qimonda.
D. On
the date hereof, Qimonda and Micron have entered into a Share Purchase
Agreement, to which this Agreement is attached as Exhibit A (the “Share Purchase
Agreement”), pursuant to which, subject to the terms and conditions of
the Share Purchase Agreement, Qimonda and its Affiliates will be selling to
Micron or its nominees all of the issued and outstanding shares of common stock
of the Company owned of record by Qimonda and its Affiliates (other than shares
held by Qimonda and its Affiliates as foreign institutional investors under
applicable ROC law).
E. In
connection with and conditioned upon the transfer of the 2nd Close Shares,
effective as of the 2nd
Closing, the JV Agreement and the Ancillary JV Agreements will terminate,
subject to the survival of certain provisions agreed upon by the
parties.
F. It
is a condition to the 2nd Closing
that Micron and NTC will enter into a new joint venture agreement with respect
to the Company (the “New JV Agreement”),
and that Micron, NTC and/or the Company will enter into certain related
agreements and modify certain existing agreements in connection therewith (the
“New JV Ancillary
Agreements”).
G. On
the date hereof, Micron, Micron Semiconductor B.V. and NTC have entered into a
Memorandum of Understanding (the “New JV MOU”), which
sets forth the current expectations of the parties with respect to principal
terms of the New JV Agreement and the New JV Ancillary Agreements.
H. It
is a condition to the 1st Closing
that the Buyer Parent and the Seller Parent will enter into a cross license
agreement mutually agreeable to the parties (the “Patent Cross
License”), which shall become effective immediately upon the 2nd
Closing;
I. Concurrently
with the execution and delivery hereof, and as an inducement for the Parties to
enter into this Agreement:
1. Micron
and Qimonda have entered into that certain Technology License Agreement, in the
form attached to the Share Purchase Agreement as Exhibit B (the “Micron/Qimonda TLA”),
which shall become effective immediately upon the later of (A) the 1st Closing
and (B) the receipt of the 2nd Close
FCO Approval;
2. Infineon
and Micron have entered into that certain Technology License Agreement, in the
form attached to the Share Purchase Agreement as Exhibit C (the “Infineon/Micron
TLA”), which shall become effective immediately upon the later of (A) the
1st
Closing and (B) the receipt of the 2nd Close
FCO Approval;
3. the
Company and Micron have entered into that certain Patent and Technology License
Agreement, in the form attached hereto as Exhibit D (the “Company/Micron
PTLA”), which shall become effective immediately upon the later of (A)
the 1st Closing
and (B) the receipt of the 2nd Close
FCO Approval;
4. that
certain Technology Transfer Agreement for 68-50nm Process Nodes, in the form
attached to the Share Purchase Agreement as Exhibit E (the “TTA”), which shall
become effective immediately upon the 2nd
Closing;
5. NTC
and Qimonda have entered into that certain Termination Agreement, in the form
attached to the Share Purchase Agreement as Exhibit F (the “NTC/Qimonda Termination
Agreement”), dated as of the date hereof, which shall become effective
immediately upon the 2nd
Closing;
6. NTC,
Qimonda and the Company have entered into that certain Release Agreement, in the
form attached to the Share Purchase Agreement as Exhibit G (the “Release Agreement”),
dated as of the date hereof, which shall become effective upon the 2nd
Closing; and
7. Qimonda
and the Company have entered into that certain Supply Agreement, in the form
attached to the Share Purchase Agreement as Exhibit H (the “Supply Agreement”),
which shall become effective immediately upon the 2nd
Closing.
J. The
Parties desire to provide for certain agreements and undertakings with respect
to, among other things, the operation and conduct of the business of the Company
from the Effective Date until the 2nd Closing
Date, the transition of Qimonda’s share ownership in the Company to Micron
pursuant to the Share Purchase Agreement, the implementation of the terms of and
the consummation of the transactions contemplated by the Acquisition Total
Documents, and the transition to the New JV Agreement and the New JV Ancillary
Agreements.
AGREEMENT
In
consideration of the mutual covenants contained herein and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties hereto, intending to be legally bound, hereby agree as
follows:
1. Agreements and
Covenants.
1.1. Access. Between
the date of this Agreement and the 2nd Closing
Date, NTC and Qimonda shall not vote the shares they hold in the Company or
otherwise exert their influence on the Company to prevent the Company from
making, and the Company agrees to make, the office, facilities, machinery and
equipment, inventories, assets, properties, books of account and records of the
Company available at reasonable times and upon reasonable prior notice for
examination and inspection by NTC, Qimonda and Micron and their
respective representatives, advisors and agents to the extent such
access is necessary (i) for purposes of confirmatory due diligence and (ii) as
the Company shall have determined is in the best interests of the Company; provided, however, any such
Party’s inspections and examinations at the Company’s facility shall not
unreasonably disrupt the normal operations of the Company.
1.2. Voting of
Shares. Between the date of this Agreement and the 2nd Closing
Date, except as expressly contemplated by this Agreement or, in the case of
Qimonda, the Share Purchase Agreement, or otherwise agreed to in writing by
Micron, neither Qimonda nor NTC shall:
a. vote
any Company securities in favor of the amendment of, or otherwise permit the
Company to amend, the Company’s Articles of Incorporation;
b. resolve
on any increase in the paid-in capital of the Company;
c. vote
to approve or otherwise permit the declaration, setting aside or payment of any
dividend or other distribution on or in respect of the Common Stock or other
shares of the Company;
d. vote
any shares of Company securities in favor of the amendment of any Acquisition
Total Document or any agreement listed in Section 3.10 of the Sellers’
Disclosure Letter; or
e. enter
into any voting agreements or voting trusts, grant any proxies, or otherwise
grant or transfer voting rights with respect to any securities of the
Company.
1.3. Pre-Closing
Covenants. From and after the date hereof and until the 2nd
Closing, unless Micron shall have given its prior written consent for the
Company to do otherwise, the Company shall not take, and neither NTC nor Qimonda
shall exert their influence, through the voting of Company securities or
otherwise, to cause the Company to take, any of the following actions (provided,
however, that nothing in this Agreement shall require any member of the Board of
Directors of the Company to violate his or her duties to the Company under
applicable corporate or other Laws):
a. operate
the business of the Company other than in the ordinary and usual course of
normal day to day operations of such business as conducted prior to the date
hereof (the “Ordinary
Course of Business”) or fail to maintain all of the facilities, assets
and properties of the Company in their condition as of the date hereof, normal
wear and tear excepted;
b. eliminate
or reduce the insurance coverage of the Company’s facilities, assets, properties
or interests;
c. (i)
disrupt the Company’s business organizations, (ii) terminate the services of the
Company’s present employees and other service providers, or (iii) terminate the
Company’s present relationships with its material vendors, suppliers and
customers and other Persons having business relationships with it;
d. (i)
solicit, encourage, cooperate with or facilitate (by way of furnishing
information or otherwise) any inquiries or proposals (other than the transaction
contemplated hereby) for the acquisition of the stock, assets or business of the
Company or (ii) acquire any material assets, properties or interests other than
in the Ordinary Course of Business;
e. merge
or consolidate with any other Person, amend or modify its organizational
documents or effect any issuance of securities, stock split, reverse stock split
or reclassification;
f. enter
into, or become obligated under, any material Contract;
g. terminate
or change, amend or otherwise modify any material Contract;
h. take
any action to implement, or decide to implement in the future, any material
technology or process not in use by the Company on the date hereof;
i. incur
or guarantee any indebtedness or suffer or permit the creation of any Lien
outside the Ordinary Course of Business upon any facilities, assets, properties
or interests of the Company;
j. retain
or hire any new senior management employee, increase or otherwise change the
rate or nature of compensation and benefits (including wages, salaries and
bonuses and benefits under pension profit sharing, deferred compensation and
other employee benefit plans and programs) which is paid or payable to any
employee of the Company or enter into or amend any employment, consulting or
similar Contract, in each case outside the Ordinary Course of
Business;
k. release,
settle or compromise any material claim, or waive any material right, of the
Company or settle or compromise any pending or threatened material claim against
the Company; and
l. agree
to take any action which would breach or violate any of clauses a.
through k. of this Section 1.3.
1.4. Transition Period
Assistance. During the period commencing on the Effective Date
and concluding on the 2nd Closing Date (the “Transition Period”),
NTC, Qimonda and the Company shall provide their full cooperation to ensure an
effective and timely transition in preparation for the 2nd
Closing.
1.5. Employees. Qimonda
agrees to continue to make available to the Company during the Transition
Period, any of its employees or former employees seconded to the Company on the
same terms and conditions as they are currently made available to the Company in
order to permit reasonable replacement and an efficient transition, provided
that such employees shall be subject to such reasonable rules and restrictions
as may be established by NTC and the
Company. Qimonda
shall withdraw all such employees on the 2nd Closing
Date. Qimonda shall be responsible for any and all employee benefits,
severance and termination costs and expenses relating to the withdrawal of any
such employees on the Closing Date.
1.6. Micron Board
Seats. NTC, the Company and, prior to the 2nd
Closing, Qimonda agree to take all actions as may be necessary, and NTC and,
prior to the 2nd
Closing, Qimonda shall cause the members of the Board of Directors of
the Company appointed by each of them to vote and take such other actions as may
be necessary, to call a meeting of the shareholders of the Company to be held as
promptly as possible following the anticipated 2nd Closing
for purposes of electing the nominees appointed by Micron to the Board of
Directors and supervisors of the Company as contemplated by the New JV
Agreement, and in the event the 2nd Closing
is delayed for any reason beyond such anticipated 2nd
Closing, to take such steps as are necessary to postpone or adjourn the meeting
from time to time so that it occurs as promptly as possible following the new
anticipated 2nd
Closing. In the alternative, to the extent necessary to ensure such
meeting occurs as promptly as practicable following the 2nd
Closing, if reasonably feasible to do so, such meeting shall be called for the
purpose of full re-election of all directors of the Board and the
supervisors.
1.7. Implementation of
Acquisition Total Agreements and New JV Arrangements. The
Company, NTC, Micron and, prior to the 2nd
Closing, Qimonda agree to take all actions as may be reasonably necessary, and
NTC and, prior to the 2nd
Closing, Qimonda shall cause the members of the Board of Directors of the
Company appointed by each of them to vote and take such other actions as may be
reasonably necessary, to implement the terms of and consummate the transactions
contemplated by (i) the Acquisition Total Agreements, including the transition
to Micron’s technology pursuant to the TTA following the 2nd
Closing, and (ii) the New JV Agreement and the New JV Ancillary
Agreements.
1.8. Supply
Agreement. The Company and Qimonda agree that they will not
amend or terminate the Supply Agreement, or waive the performance of or fail to
enforce any provision thereof, without the prior written consent of
Micron.
1.9. Micron Financing Information
Assistance. The Company and NTC will use all reasonable
efforts to provide to Micron upon request all cooperation reasonably requested
by Micron in connection with the arrangement of any financing proposed by Micron
in connection with the transactions contemplated by the Share Purchase
Agreement, including (i) participation in a reasonable number of meetings,
presentations, road shows, due diligence sessions and sessions with rating
agencies, (ii) assisting with the preparation of materials for rating agency
presentations, offering documents, private placement memoranda, bank information
memoranda, prospectuses, business projections and similar documents required in
connection with the such financing, and (iii) similar matters.
1.10. Financial
Information. The Company will use its reasonable efforts to
cooperate with Micron and provide to Micron upon request (x) all financial
information necessary for Micron to account for its investment in the 1st Close
Shares and the 2nd Close
Shares, and (y) any other information and cooperation regarding the Company as
Micron shall reasonably request in order to aid in financial statement
preparation and the reporting requirements of Micron as a United States
reporting company.
1.11. Third Party Consents.
From and after the date hereof and prior to the 2nd Closing Date, and in
furtherance of the consummation of the transactions contemplated hereby, by each
of the other Acquisition Total Documents, the New JV Agreement and the Ancillary
JV Agreements, the Company shall use its reasonable efforts to obtain such
consents and waivers, to enter into such amendments, and to provide such
notices, and each other Party shall provide such cooperation as is reasonably
requested by the Company, with respect to (a) the US$260,000,000 Five-Year
Syndicate Term Loan Agreement, dated as of January 14, 2004, by and among the
Company, as Borrower, and the other parties thereto, (b) the US$672,000,000 and
NT$5,700,000,000 Five-Year Syndicate Term Loan Agreement, dated as of October
14, 2004, by and among the Company, as Borrower, and the other parties thereto,
(c) US$400,000,000 and NT$27,000,000,000 Five-Year Syndicated Term Loan
Agreement, dated as of March 5, 2007, by and among the Company, as Borrower, and
the other parties thereto, as is reasonably necessary to avoid a default or
event of default, or any such incipient or prospective default or event of
default, under of any of the foregoing term loan agreements and under any of the
Company’s outstanding public bonds as a result, directly or indirectly, of such
transactions.
1.12. Further
Assurances. Subject to the terms and conditions herein
provided, each of the Parties hereto agrees to use its reasonable efforts to
take or cause to be taken all reasonable action and to do or cause to be done
all things reasonably necessary, proper or advisable under applicable laws and
regulations to consummate and make effective the transactions contemplated by
this Agreement, including executing any additional instruments necessary to
consummate the transactions contemplated hereby. If at any time after
the date hereof any further reasonable action is necessary to carry out the
purposes of this Agreement, the proper officers and directors of each party
hereto shall take all such action.
2. Miscellaneous.
2.1. Termination. This
Agreement shall terminate automatically in the event (A) the Share Purchase
Agreement terminates pursuant to Section 9.1(a) thereof, (B) the obligations of
Micron and Qimonda to consummate the 2nd Closing
terminate pursuant to Section 9.1(b) thereof or (C) the 2nd Closing
has not occurred by February 28, 2009.
2.2. Notices. Any
notice or other communication required or permitted hereunder shall be in
writing and shall be deemed to have been duly given (a) on the day of delivery
if delivered in person, or if delivered by facsimile upon confirmation of
receipt, (b) on the first Business Day following the date of dispatch if
delivered by a nationally recognized express courier service, or (c) on the
tenth Business Day following the date of mailing if delivered by registered or
certified mail, return receipt requested, postage prepaid. All
notices hereunder shall be delivered as set forth below, or pursuant to such
other instructions as may be designated by notice given in accordance with this
Section 2.2 by the Party to receive such notice:
If to
NTC, to:
Hwa-Ya
Technology Park, 000, Xxxxxxx 0xx Xxxx,
Xxxxxxxx,
Xxxxxxx, Xxxxxx, X.X.X.
Attn: Legal
& IP Division
Fax: x000-0-0000000
If to
Qimonda, to:
Qimonda
AG
Xxxxxx-Xxxxxxxxx-Xxxx
000
00000
Xxxxxx
Xxxxxxx
Attention: Legal
Department
Facsimile: (00-00)
00000-000000
with
copies to:
Xxxxxx
Xxxxxxxx Xxxxx & Xxxxxxxx LLP
Main
Tower
Neue
Mainzer Xxxxxxx 00
00000
Xxxxxxxxx xx Xxxx
Xxxxxxx
Attention: Xxxx
X. Xxxxxxxxx
Facsimile: (00-00)
00000-000
If to the
Company, to:
Hwa-ya
Technology Park, 000, Xxxxxxx 0xx Xxxx,
Xxxxxxxx,
Xxxxxxx, Xxxxxx, R.O.C
Attn: Legal
Department
Fax: x000
0 000 0000 xxx 0000
If to
Micron, to:
0000
Xxxxx Xxxxxxx Xxx
Xxxxx,
Xxxxx 00000-0000
Attn:
General Counsel
Facsimile:
(000) 000-0000
with a
copy to:
Xxxxxx
Xxxxxxx Xxxxxxxx & Xxxxxx, Professional Corporation
000 Xxxx
Xxxx Xxxx
Xxxx
Xxxx, XX 00000
Attention: Xxxx
X. Xxxx
Facsimile: (000)
000-0000
2.3. Successors and
Assigns. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors, heirs, and
assigns. Nothing in this Agreement, express or implied, is intended
to confer upon any person or entity other than the Parties hereto, or their
successors or permitted assigns, any rights or remedies under or by reason of
this Agreement.
2.4. Amendments. This
Agreement may be amended, superseded, canceled, renewed or extended, and the
terms hereof may be waived, only by a written instrument signed by each of the
Parties or, in the case of a waiver, by the Party waiving
compliance. No delay on the part of any party in exercising any
right, power or privilege hereunder shall operate as a waiver thereof, nor shall
any waiver on the part of any party of any such right, power or privilege, nor
any single or partial exercise of any such right, power or privilege, preclude
any further exercise thereof or the exercise of any other such right, power or
privilege.
2.5. Governing
Law. This Agreement shall be governed by and construed in
accordance with the laws of the State of New York (without giving effect to
principles of conflicts of laws).
2.6. Entire
Agreement. This Agreement and any other collateral agreements
executed in connection with the consummation of the transactions contemplated
hereby contains the sole and entire agreement and understanding of the Parties
with respect to the subject matter hereof and supersedes all prior negotiations
and understandings of any kind with respect to the subject matter
hereof.
2.7. Headings;
Construction. The various captions of this Agreement are for
reference only and shall not be considered or referred to in resolving questions
of interpretation of this Agreement. The Parties acknowledge and
agree that (a) each Party and its counsel reviewed and negotiated the terms and
provisions of this Agreement and have contributed to its revision, (b) the rule
of construction to the effect that any ambiguities are resolved against the
drafting party shall not be employed in the interpretation of this Agreement,
and (c) the terms and provisions of this Agreement shall be construed fairly as
to all Parties, regardless of which Party was generally responsible for the
preparation of this Agreement.
2.8. Specific
Performance. The Parties hereto agree that if any of the
provisions of this Agreement are not performed in accordance with their specific
terms or are otherwise breached, irreparable damage would occur, no adequate
remedy at law would exist and damages would be difficult to determine, and that
the Parties shall be entitled to specific performance of the terms hereof, in
addition to any other remedy at law or equity.
2.9. Savings
Clause. If any provision of this Agreement is held to be
illegal, invalid or unenforceable under any present of future law, statute, rule
or regulation, such provision shall be fully severable and this Agreement shall
be construed and enforced as if such illegal, invalid or unenforceable provision
had never comprised a part hereof. The remaining provisions of this
Agreement shall remain in full force and effect and shall not be affected by the
illegal, invalid or unenforceable provision or by its severance
herefrom. Furthermore, the Parties shall use reasonable efforts to
negotiate and include in this Agreement, in lieu of such illegal, invalid or
unenforceable provision, a legal, valid and enforceable provision as similar in
terms to such illegal, invalid or unenforceable provision as may be
possible.
2.10. Language. This
Agreement shall be prepared in the English language, and the English language
version shall be official. No translation into German, Chinese or any
other language shall be taken into consideration in the interpretation of this
Agreement.
2.11. Counterparts; Delivery by
Fax or E-mail. This Agreement may be executed by the Parties
hereto in separate counterparts, each of which when so executed and delivered
shall be an original, but all such counterparts together shall constitute one
and the same instrument. Each counterpart may consist of a number of
copies hereof each signed by less than all, but together signed by all, of the
Parties hereto. Delivery of an executed counterpart of this Agreement
by facsimile or electronic mail transmission shall be equally as effective as
delivery of an executed hard copy of the same. Any Party doing so
shall also deliver an executed hard copy of same, but the failure by such Party
to deliver an executed hard copy shall not affect the validity, enforceability
and binding effect of this Agreement.
[Signature
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Transition Agreement (final)_(PALIB2_4423715_7).DOC
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CONFIDENTIAL
IN
WITNESS WHEREOF, the Parties have caused this Transition Agreement to be
executed on the date first above written.
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NANYA
TECHNOLOGY CORPORATION
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By:
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/s/ Xxx
Xxxx
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Name:
Xxx Xxxx
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Title:
President
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QIMONDA
AG
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By:
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/s/ Kin Xxx
Xxx
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Name:
Kin Xxx Xxx
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Title:
Chief Executive Officer
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By:
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/s/ Xxxxxx
Xxx
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Name:
Xxxxxx Xxx
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Title:
Vice President and Corporate Legal
Counsel
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INOTERA
MEMORIES, INC.
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By:
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/s/ Xxxxxx
Xxxxx
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Name:
Xxxxxx Xxxxx
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Title:
Supervisor
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By:
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/s/ Xxxxxxx
Xxxx
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Name:
Xxxxxxx Xxxx
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Title:
Supervisor
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MICRON
TECHNOLOGY, INC.
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By:
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/s/ D. Xxxx
Xxxxxx
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Name:
D. Xxxx Xxxxxx
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Title:
President and Chief Operating Officer
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(Signature
Page of Transition Agreement)
