Qimonda AG Confidential Materials Omitted and Filed Separately with the Securities and Exchange Commission. Confidential Portions denoted by [***]. First Amendment to Joint Venture Agreement dated 13 November 2002
Exhibit 10(i)(H)
Qimonda AG
Confidential Materials Omitted and Filed Separately with the
Securities and Exchange Commission.
Confidential Portions denoted by [***].
Confidential Materials Omitted and Filed Separately with the
Securities and Exchange Commission.
Confidential Portions denoted by [***].
First Amendment to
Joint Venture Agreement dated 13 November 2002
This amendment (“First Amendment”) to the subject Agreement, is entered into by and between
Nanya Technology Corporation, a company legally established under the laws of the Republic of China
and having its head office at Hwa-Ya Technology Park 000, Xxxxxxx 0xx Xxxx, Xxxxxxxx,
Xxxxxxx, Xxxxxx, Xxxxxxxx of China (hereinafter “NTC”),
and
Infineon Technologies AG, a company legally established under the laws of Germany and having its
head office as Xx.-Xxxxxx-Xxxxxxx 00, X-00000 Xxxxxx, Xxxxxxx (hereinafter “IFX”),
(collectively the “Parties”).
WHEREAS, NTC and IFX entered into a Joint Venture Agreement (hereinafter “JVA”) for the
establishment of Inotera Memories, Inc. (hereinafter “Inotera”) on 13 November 2002; and
WHEREAS, NTC and IFX each now wish to amend JVA to more accurately reflect their understanding
regarding the equity funding requirement under JVA;
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, NTC and IFX
agree to amend JVA as follows:
1. Add a new Subsection 1.3-7(1), as follows:
1.3-7(1) The Parties agree that they shall subscribe for shares of Inotera at the dates listed
in Subsection a. to d. below. Taking into consideration that according to the laws of the Republic
of China up to 15% of the shares in each capital increase have to be offered to the employees, the
Parties shall each subscribe for shares of Inotera equal to 50% of the amounts listed below
minus such amounts for which the employees of Inotera have committed to subscribe for shares.
a. 10 billion NT Dollars by 31 January 2004,
b. 5 billion NT Dollars by 30 April 2004,
c. 6 billion NT Dollars by 31 July 2004,
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d. 5 billion NT Dollars by 31 October 2004.
2. Add a new Subsection 1.3-7(2), as follows:
1.3-7(1) The Parties shall pass by themselves, or shall cause their representatives on the
Board of Directors of Inotera to pass all corporate resolutions necessary for the authorization of
the increase of Inotera’s share capital in accordance with the First Amendment. The Parties shall
assist each other to obtain governmental approvals, if any, necessary to effect such capital
increase.
Regarding Subsection 1.3-10 of the JVA, the Parties re-iterate that Inotera shall provide for its
own loan financing to the decision of the Board of Directors. Both parties shall support Inotera in
obtaining the most favorable terms for its loan financing. None of the Parties shall be obligated
to make any guarantees of financing unless this is separately agreed by the Parties.
Unless expressly modified by this First Amendment, all of the other provisions of the Agreement
shall remain in full force and effect.
IN WITNESS WHEREOF, the Parties have caused this First Amendment to be effective as of the date of
the last of the Parties to sign below.
| Nanya Technology Corporation | Infineon Technologies AG | |||||
By:
|
/s/ Xxx Xxxx | By: | /s/ Xx. Xxxxxxx Xxxxxxx | |||
Name:
|
Xxx Xxxx | Name: | Xx. Xxxxxxx Xxxxxxx | |||
Title:
|
President | Title: | Chief Financial Officer | |||
Date:
|
Dec. 3, 2003 | Date: | 24. 11. 2003 | |||
| By: | /s/ Xx. Xxxxxx Xxxxxx | |||||
| Name: | Xx. Xxxxxx Xxxxxx | |||||
| Title: | CEO HP | |||||
| Date: | 24. 11. 2003 | |||||
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Second Amendment to
Joint Venture Agreement dated 13 November 2002
This amendment (“Second Amendment”) to the subject Agreement, is entered into by and between
Nanya Technology Corporation, a company legally established under the laws of the
Republic of China and having its head office at Hwa-Ya Technology Park 000, Xxxxxxx 0xx
Xxxx, Xxxxxxxx, Xxxxxxx, Xxxxxx, Xxxxxxxx of China (hereinafter “NTC”); and
Infineon Technologies AG, a company legally established under the laws of Germany and having its
head office as Xx.-Xxxxxx-Xxxxxxx 00, X-00000 Xxxxxx, Xxxxxxx (hereinafter “IFX”),
(collectively the “Parties”).
WHEREAS, NTC and IFX entered into a Joint Venture Agreement (hereinafter “JVA”) for the
establishment of Inotera Memories, Inc. (hereinafter “Inotera”) on 13 November 2002; and
WHEREAS, in order to more accurately reflect the Parties’ understanding regarding the equity
funding requirement under JVA, NTC and IFX executed the First Amendment to the JVA on 3 December,
2003 (hereinafter “First Amendment”); and
WHEREAS, NTC and IFX each now wish to further adjust the final capital injection, which the Parties
have reached their understanding under the First Amendment.
NOW THEREFORE, in consideration of the premises and mutual covenants contained herein, NTC and
IFX agree to amend JVA as follows:
1. The Parties agree to change Subsection 1.3-7(1) d) which was inserted into the JVA under
the First Amendment to JVA dated 3 December, 2003 as follows:
that they shall subscribe for shares of Inotera at the dates listed in Subsection a. to d. below.
Taking into consideration that according to the laws of the Republic of China up to 15% of the
shares in each capital increase have to be offered to the employees, the Parties shall each
subscribe for shares of Inotera equal to 50% of the amounts listed below minus such amounts for
which the employees of Inotera have committed to subscribe for shares.
d. 7.6 billion NT Dollars latest by 31 December 2004.
Unless expressly modified by this Second Amendment, all of the rest provisions set forth under the
JVA shall remain intact and unchanged.
IN WITNESS WHEREOF, the Parties have caused this Second Amendment to be effective as of the date of
the last of the Parties to sign below.
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| Nanya Technology Corporation | Infineon Technologies AG | |||||
By:
|
/s/ Xxx Xxxx | By: | /s/ Xx. Xxxxxxx | |||
Name:
|
Xxx Xxxx | Name: | Xx. Xxxxxxx | |||
Title:
|
President | Title: | MP CEO | |||
Date:
|
28/9/2004 | Date: | 28/9/2004 | |||
| By: | /s/ Xx. X. Xxxxxxx | |||||
| Name: | Xx. X. Xxxxxxx | |||||
| Title: | MP CFO | |||||
| Date: | 28/9/2004 | |||||
4
Third Amendment to
Joint Venture Agreement dated 13 November 2002
This Amendment (“Third Amendment”) to the subject Agreement, is entered into by and between
Nanya Technology Corporation, a company legally established under the laws of the Republic of China
and having its head office at Hwa-Ya Technology Park 000, Xxxxxxx 0xx Xxxx, Xxxxxxxx,
Xxxxxxx, Xxxxxx, Xxxxxxxx of China (hereinafter “NTC”),
and
Infineon Technologies AG, a company legally established under the laws of Germany and having its
head office at Xx.-Xxxxxx-Xxxxxxx 00, X-00000 Xxxxxx, Xxxxxxx (hereinafter “IFX”),
(collectively the “Parties”)
WHERAS the Parties have entered into a Joint Venture Agreement on 13 November 2002.
WHEREAS the Parties have entered into a First Amendment to the Joint Venture Agreement on 3
December 2003 and a Second Amendment to the Joint Venture Agreement on 28 September 2004.
WHEREAS, the Parties have decided to change the status of Inotera Memories Inc. from a private to a
public company and are evaluating a possible IPO of the Company.
NOW, THEREFORE, in consideration of the foregoing, the Parties agree as follows:
| 1. | Subsection 1.3-5 shall be replaced by the following: |
“SPV: The SPV shall be established under the laws of the Republic of China by the Parties for
the sole purpose of buying shares in the Company, administrating and selling these shares to the
employees of the Company pursuant to the terms and conditions to be set forth by the Company’s
Board of Directors. The SPV shall adopt Articles of Incorporation pursuant to the laws of the
Republic of China in the form as attached to this Agreement as Appendix I. The SPV shall be set
up by the Parties simultaneously with the establishment of the Company and shall be capitalized by the Parties
with NT$ 700 million (equivalent of US$ 20 million) in equal installments by each Party of NT$
350 million (equivalent of US$ 10 million). The SPV shall then subscribe for 70 million shares
of the Company at nominal value of NT$ 10 per share. Upon affirmative decision of the Parties
and subject to the conditions as to be determined by the Board of Directors of the Company and
the SPV, the SPV shall later
5
offer the shares in the Company to the Company’s employees, whereby the sales price per share
shall be at least NT$ 15 per share. The exact selling price shall be determined by the Board of
the Company and the SPV. Upon completion of this employee participation program, the SPV shall
be dissolved and the proceeds from the share sale (equivalent of at least US$ 30 million) shall
be redistributed to the Parties according to their respective
shareholding of 50% in the SPV.”
| 2. | Subsection 1.3-8 shall be deleted. | |
| 3. | Subsection 1.3-9 shall be replaced by the following: |
“Before an IPO of the Company, agreement between the Parties shall be necessary to
determine the timing and necessity of increases in the capital of the Company.
Furthermore, for such agreed capital increases as indicated herein, each Party shall have
the right and obligation to subscribe to new shares in the same proportion as its then
current ownership of shares. No third party shall subscribe to share capital of the Company
unless jointly agreed upon by the Parties or otherwise provided by law. For the avoidance
of doubt, this Agreement shall impose no obligation on any Party to provide any additional
funding other than what is stipulated herein, whether in the forms of loans, equity or
otherwise.”
| 4. | Subsection 1.4-1 shall be replaced by the following: |
“Within five (5) years after the incorporation of the Company, or until the shares of the
Company are listed on Taiwan Stock Exchange, or any stock exchange out of the Republic of
China (the “Stock Exchange”), whichever is earlier, neither Party shall, without the prior
written consent of the other Party, sell, transfer or otherwise dispose of its shares
(except for, (i) transferring all but not part of its shares to an Affiliate, or (ii)
transfers of shares to employees under Subsection 1.3-6, each under the terms of this
Agreement and in accordance with the provisions of the Articles of Incorporation), or
pledge, hypothecate or otherwise use its shares as security, or grant options over its
legal and beneficial interest in its shares. Any action of a Party violating this provision
shall be void and shall be considered a material breach of this Agreement in accordance
with Subsection 7.3 (a).”
| 5. | The last paragraph of Subsection 1.4-2 shall be replaced by the following: |
“For the purpose of this Subsection 1.4-2, Off-the-Market Sale shall mean the sale of shares of the Company not through the Stock Exchange or not via Depository Receipts.”
6
| 6. | Subsection 1.4-9 shall be replaced by the following: |
“Minimum Shareholding
(a) Notwithstanding anything to the contrary of other provisions set forth in this Article
1, each Party shall own a minimum of 33.5% of the outstanding shares of the Company at any
time (the “Minimum Shareholding”); and shall not pledge, hypothecate or otherwise use its shares as security, or grant options over its legal and beneficial interest in these 33.5%
of the outstanding shares (“Encumbrance”).
(b) Any action in violation of this provision shall be considered a material breach of this
Agreement according to Subsection 7.3 (a).
(c) In case the non-breaching Party decides not to terminate this Agreement for material
breach according to Subsection 7.3(a), it may choose that each Party’s Output Share shall
be adjusted by the following formula: The breaching Party shall be obligated to offer to
the non-breaching Party, and the non-breaching Party shall have the right of first refusal
to the offer from the breaching Party, a share of the Total Capacity amounting to 1.5[x]%
of the Total Capacity of the Company if the breaching Party’s shareholding is [x]% less
than 33.5% of the shares of the Company, or if the breaching Party’s shareholding free of
any Encumbrance is [x]% less than 33.5% of the shares of the Company. By way of example: If
the breaching Party’s shareholding is decreased to 16% of the outstanding shares of the
Company, it shall offer to the non-breaching Party 26.25% (1.5[33.5-16])% of the Total
Capacity. The terms Output Share and Total Capacity used in this Subsection 1.4-9 shall
have the same meaning as defined in the PPCRA and the Parties shall cause the Company to
comply with this Subsection 1.4-9.
(d) Further to the rights of the non-breaching Party to terminate this Agreement pursuant
to Section 7.3 (a), or to claim an adjustment of the Output Share pursuant to Subsection
1.4-9 (c), the breaching Party shall on written request of the non-breaching Party:
| • | withdraw one of its appointed directors if the shareholding of the breaching Party drops below 30%; | ||
| • | withdraw two of its appointed directors if the shareholding of the breaching Party drops below 26%; | ||
| • | withdraw three of its appointed directors and its appointed supervisor if the shareholding of the breaching Party drops below 22%; | ||
| • | withdraw four of its appointed directors and its appointed supervisor if the shareholding of the breaching Party drops below 16.75%.” |
| 7. | Subsection 1.4-10 shall be added to the Agreement: |
“1.4-10 Depository Receipts Offering
Subject to the Minimum Shareholding each Party shall be entitled to dispose of its
shareholding in the Company via the offering of depository receipts. If a Party intends to
do so, it shall first inform the other Party of the volume of shares to be offered and the
anticipated price. The other Party may request within 15 days to participate in such
7
offering, or to buy the first Party’s shares intended to be offered via depository receipts,
provided that the Parties can agree on the conditions for such joint offering, or a price for the
shares within the 15 days period. In any event and even if there is no agreement within the above
15 days period, the Parties agree to cause their nominees on the board of the Company to support
such offerings and to vote affirmatively on any resolution required for such offering. The Parties
shall cause the Company to sponsor such offering of depository receipts and to file all necessary
applications, in particular with the Securities and Futures Bureau.”
| 8. | Section 2.2 shall be replaced by the following: |
“2.2 Directors, Supervisors, President and Executive Vice President
2.2-1 Unless otherwise agreed by the Parties, the Chairman, directors, supervisors,
President and Executive Vice President of the Company shall be appointed and replaced by
the Parties in accordance with the following method:
(a) There shall be 8 directors, of whom NTC shall appoint 4 directors and IFX shall appoint
4 directors. The right to appoint a director shall include the right to replace the
director at any time.
Notwithstanding the foregoing, in case that the Board of the Company has approved the
application for an IPO of the Company on Taiwan Stock Exchange (“TSE”), the Parties agree
to increase the number of directors to 12 directors, of whom NTC shall appoint 4 directors
and IFX shall appoint 4 directors. One director shall be a non-related natural person
nominated by Nanya and one director shall be a non-related natural person nominated by
Infineon. Two directors shall be independent of NTC and IFX as prescribed by ROC law and
applicable listing rules and “[***]”
(b) There shall be 2 supervisors, of whom NTC shall appoint 1 supervisor and IFX shall
appoint 1 supervisor. The right to appoint a supervisor shall include the right to replace
the supervisor at any time.
Notwithstanding the foregoing, in case that the Board of the Company has approved the
application for an IPO of the Company on TSE, the Parties agree to increase the
number of supervisors to 4 supervisors, “[***]” . One supervisor
nominated by each Party shall be independent of the nominating Party as prescribed by ROC
law and applicable listing rules.
(c) NTC shall nominate a director of the Company, and provide an alternative nominee if the
first nomination is not agreed by IFX, to be appointed as the Chairman of the Board of the
Company.
(d) The appointment of the President and the Executive Vice President shall be jointly
consented by the Parties. However, neither Party shall unreasonably withhold such consent.
If the President is appointed by one Party, the other Party may appoint the Executive Vice
President.
8
(e) Each Party shall cause the performance of such Chairman, President, Executive Vice President,
directors, supervisors, and/or other managers appointed or nominated by such Party to be in
accordance with this Agreement.
Each Party shall inform the other Party of the persons it wishes to nominate or appoint to be
elected as director or supervisor by the Shareholder’s Meeting of the Company. For as long as the
other Party is in compliance with the Minimum Shareholding requirement as set forth in this amended
Subsection 1.4-9, each Party shall equally use its votes in the Shareholders Meeting to vote in
favor of the persons appointed or nominated by itself and by the other Party as stipulated in this
Subsection 2.2-1 (a) and (b). In case that a Party is in breach of its Minimum Shareholding
requirement as set forth in this amended Subsection 1.4-9, it shall not be relieved from its
obligations to vote in favor of the persons appointed or nominated by the other Party.
2.2-2 Subject to the Company Law of the Republic of China, the term of the directors and the
supervisors shall be three (3) years.
2.2-3 Further to the Parties agreement in Subsection 2.2-1 above, if the Company needs to comply
with legal requirements for the election of independent directors and supervisors as prescribed
by the applicable laws or regulations of the Republic of China, the Parties agree to co-operate
in good faith and to work out an appropriate contractual arrangement to maintain the Company as
joint venture between the Parties as equal partners with regard to the directors, supervisors and
the management of the Company.”
| 9. | The last paragraph of Subsection 2.3-1 shall be changed as follows: |
“A resolution of the Board of Directors shall be required for the Joint Venture Company,
its Chairman, its President and Executive Vice President, or any of its directors,
personnel or supervisors to engage in any matters which are within the responsibilities of
the Board of Directors.”
| 10. | Subsection 2.3-2 shall be replaced by the following: |
“An attendance by two thirds of the directors in person or through representation shall be
necessary to form a quorum. Resolutions of the Board of Directors shall be in writing, and shall be
adopted by affirmative vote of at least 75% of the directors attending the Board Meeting (at which
a quorum is present) whether in person or by proxy. The Chairman shall not be entitled to a second
or casting vote.”
| 11. | Section 6.2 shall be replaced by the following: |
“In each year that the Company has realized a profit after accounting for any tax liability and
covering of accumulated losses, 10% of the remaining profit shall be retained as legal reserves.
After providing for any voluntary reserves as decided by the Shareholders Meeting, 0.1%~1% of the
then remaining profits shall be set aside for the directors and supervisors of the Company, and
1%~8% of the then remaining profits shall be set aside for employees as bonuses. The remainder of
the profit, if any, may be announced and
9
paid as dividends to the shareholders in cash or stock, such as shall be determined from year to
year by the Board of Directors and approved by the Shareholders Meeting, whereby at least 50% shall
be distributed as cash dividend. Any other remaining profit shall be kept by the Company as
retained earning.”
| 12. | Subsection 8.10-2 |
ProMOS Technologies Inc., Taiwan, shall be deleted from the list of Frontend Fab Cluster members.
Semiconductor Manufacturing International Corporation, (Shanghai), People’s Republic of China,
shall be added to the list of Frontend Fab Cluster members.
| Nanya Technology Corporation | Infineon Technologies AG | |||||
| /s/ Xxx Xxxx |
/s/ Xxxxxx Xxxxxxx |
|||||
By:
|
By: | |||||
Name:
|
Xxx Xxxx | Name: | Xxxxxx Xxxxxxx | |||
Title:
|
President | Title: | ||||
Date:
|
April 5, 2005 | Date: | 04/05/05 | |||
| /s/ Xxxxxxx Xxxxxxx |
||||||
| By: | ||||||
| Name: | Xxxxxxx Xxxxxxx | |||||
| Title: | ||||||
| Date: | 04/05/05 | |||||
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