EXHIBIT 2.2
SECOND AMENDMENT TO ACQUISITION AGREEMENT
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THIS SECOND AMENDMENT TO ACQUISITION AGREEMENT, dated as of September 30,
1998 (this "Second Amendment"), between Micron Technology, Inc., a Delaware
corporation ("Buyer"), and Texas Instruments Incorporated, a Delaware
corporation ("Seller"), amends that certain Acquisition Agreement, dated June
18, 1998, as amended by the First Amendment to Acquisition Agreement, dated as
of July 31, 1998 (such agreement, as so amended, being hereafter referred to as
the "Acquisition Agreement"), between Buyer and Seller. Capitalized terms used
and not defined herein have the respective meanings ascribed to them in the
Acquisition Agreement.
R E C I T A L S:
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A. Section 6.6 of the Acquisition Agreement contemplated that the parties
would agree on terms and conditions to apply to the transfer at Closing of the
Acquired Assets and Assumed Liabilities associated with Seller's Italian
operations to be transferred by Seller to Buyer, including appropriate
conditions precedent to Closing.
B. Section 6.7 of the Acquisition Agreement contemplated that, among
other things, the parties would agree on the forms of certain agreements
pursuant to which various services may be supplied by Seller or its subsidiaries
to Buyer and its subsidiaries with respect to the acquired business and Buyer
would request KTI to continue manufacturing and supplying certain SDRAM or DRAM
products for military and aerospace applications to Seller.
C. Section 6.10 of the Acquisition Agreement contemplated that Seller
would deliver to Buyer the Seller Disclosure Letter.
D. Section 6.11 of the Acquisition Agreement contemplated that Buyer
would deliver to Seller the Buyer Disclosure Letter.
E. Section 6.12 of the Acquisition Agreement contemplated that the
parties would, among other things, agree on terms and conditions of the JV
Amendments as well as amendments to all debt, credit or financing Contracts to
which any of the Joint Ventures is a party.
F. Section 6.31(a) of the Acquisition Agreement contemplated that Buyer
would deliver to Seller the Transferred Contract Schedule.
G. At the Closing, Seller is delivering to Buyer the Seller Disclosure
Letter, dated as of the Closing Date, and Buyer is delivering Seller the Buyer
Disclosure Letter, dated as of the Closing Date.
H. The parties have identified certain other changes to the Acquisition
Agreement necessary to reflect the intentions of the parties and desire to amend
the Acquisition Agreement to reflect such changes as well as to set forth the
agreements with respect to the foregoing matters.
NOW THEREFORE, in consideration of the premises and the mutual covenants
contained herein, the parties hereto agree as follows:
Section 1. Exhibit A to the Acquisition Agreement is amended by
deleting Exhibit A in its entirety and replacing it with Exhibit A to this
Second Amendment.
Section 2. Exhibit B to the Acquisition Agreement is amended by
deleting Exhibit B in its entirety and replacing it with Exhibit B to this
Second Amendment.
Section 3. Exhibits D and G to the Acquisition Agreement are amended by
deleting Exhibits D and G in their entirety and replacing them with Exhibits D
and G to this Second Amendment.
Section 4. Exhibit H to the Acquisition Agreement is amended by
deleting Exhibit H in its entirety and replacing it with Exhibit H to this
Second Amendment.
Section 4. Exhibit I to the Acquisition Agreement is amended by
deleting Exhibit I in its entirety and replacing it with Exhibits I-1 through I-
14 to this Second Amendment.
Section 5. Exhibit J to the Acquisition Agreement is amended by
deleting Exhibit J in its entirety and replacing it with Exhibit J to this
Second Amendment.
Section 6. The Acquisition Agreement is amended to add Exhibits K, L,
M, N, O and P hereto as new Exhibits K, L, M, N, O and P to the Acquisition
Agreement.
Section 7. Section 1.6 of the Acquisition Agreement is amended by
adding, at the end thereof, the following:
Acquired Intellectual Property shall not include the words
or name "Texas Instruments Incorporated", "Texas Instruments"
or "TI", or Seller's related monograms, logos, trademarks or
trade names.
Section 8. Section 1.11 of the Acquisition Agreement is amended by
adding, immediately following the words "(including DRAM, Flash and EPROM
devices)," the following:
and test equipment for testing such MOS memory devices,
Section 9. Section 1.14 of the Acquisition Agreement is amended by
deleting Section 1.14 in its entirety and replacing it with the following:
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1.14 Intentionally omitted.
Section 10. Section 1.38 of the Acquisition Agreement is amended by
deleting Section 1.38 in its entirety and replacing it with the following:
1.38 Intentionally omitted.
Section 11. Section 1.56 of the Acquisition Agreement is amended to
replace "Clause 12" with "Clause 13."
Section 12. Section 1.97 of the Acquisition Agreement is amended by
deleting Section 1.97 in its entirety and replacing it with the following:
1.97 "KTI Amendments" means that certain Amendment No. 13 to
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Shareholders' Agreement among Seller, Kobe Steel, Ltd., and KTI, and
the amendments to the other agreements and related transactions
contemplated by such Amendment No. 13 to be entered into on or prior
to the Closing.
Section 13. Section 1.98 of the Acquisition Agreement is amended by
deleting Section 1.98 in its entirety and replacing it with the following:
1.98 "KTI Shareholders' Agreement" means the shareholders'
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agreement entered into by Kobe Steel, Ltd. and Seller effective on
March 19, 1990 and ratified by KTI Semiconductor Limited on May 22,
1990, as amended on September 28, 1990, November 5, 1992, June 7,
1993, July 14, 1993, December 15, 1993, March 24, 1994, June 27, 1994,
December 11, 1995, December 17, 1996, February 17, 1998, March 26,
1998 and June 23, 1998.
Section 14. Section 1.105 of the Acquisition Agreement is amended to
replace the word "Business" with the words "assets and liabilities which would
have been Acquired Assets and Assumed Liabilities."
Section 15. Section 1.112 of the Acquisition Agreement is amended by
deleting Section 1.112 in its entirety and replacing it with the following:
1.112 "Notes" means the Subordinated Notes and the
Convertible Notes.
Section 16. Section 1.124 of the Acquisition Agreement is amended by
adding, at the end thereof, the following:
or other body with respect to arbitration, mediation or administrative
proceedings.
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Section 17. Section 1.132(d) of the Acquisition Agreement is hereby
amended to add at the end of such Section 1.132(d) the following:
(including but not limited to, Losses, Claims, Liens and Liabilities
that arise with respect to violations existing after the Closing
Date which violations arose prior to the Closing Date).
Section 18. Section 1.163 of the Acquisition Agreement is amended by
deleting Section 1.163 in its entirety and replacing it with the following:
1.163 "TECH Amendments" means Amendment Agreement No. 4 to the
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Shareholders' Agreement among Seller, EDB, Canon Inc., a corporation
established under the laws of Japan, Hewlett-Packard Company, a
corporation established under the laws of the State of California,
U.S.A., TECH, Hewlett-Packard World Trade, Inc., a corporation
established under the laws of the State of Delaware, U.S.A., EDB
Investments Pte Ltd., a corporation established under the laws of
Singapore, and Hewlett-Packard Singapore (Private) Limited, a
corporation established under the laws of Singapore, and the
amendments, to the other agreements and related transactions
contemplated by such amendment to be entered into or occur at or
prior to Closing.
Section 19. Section 1.164 of the Acquisition Agreement is amended by
deleting Section 1.164 in its entirety and replacing it with the following:
1.164 "TECH Shareholders' Agreement" means the shareholders'
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agreement entered into by Seller, EDB, Canon, Inc. and Hewlett Packard
Company effective on April 11, 1991 and ratified by TECH Semiconductor
Singapore Pte. Ltd. on May 13, 1991, as amended August 22, 1991,
February 15, 1993 and August 4, 1995 and subject to the waivers dated
May 31, 1991, December 19, 1991 and February 15, 1997.
Section 20. Section 1.179 of the Acquisition Agreement is amended by
deleting Section 1.179 in its entirety and by replacing it with the following:
1.179 "Transition Services Agreement" means each of the
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following agreements to be executed and delivered by the parties in
accordance with Sections 9.2(c) and 9.3(c) hereof: (i) the master
Transition Services Agreement substantially in the form of Exhibit I-1
hereto and the individual agreements contemplated by the master
Transition Services Agreement including, (ii) the IT Transition
Service Agreement between Seller and Buyer; (iii) the General
Administrative Services Agreement between Seller and Buyer; (iv) the
EPROM Products Agreement between Seller and Buyer; (v) the Wire Bonder
Equipment
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Service and Support Agreement between Seller and Buyer; (vi) the
Military Memory Products Service Agreement between Seller and Buyer;
(vii) the Human Resources Administration Transition Services
Agreement between Seller and Buyer; (viii) the Miho, Japan
Engineering Consulting Services Agreement between Seller and Buyer;
(ix) the PTEC Purchase Agreement between Seller and Buyer; (x) the
Labeling Agreement between Seller and Buyer; (xi) the Flash Products
Agreement between Seller and Buyer; (xii) the Field Memory Products
Services Agreement between Seller and Buyer; (xiii) the Transition
Lease -▇▇▇▇▇▇▇▇ (Houston) Facility between Seller and Buyer; and
(xiv) the Transition Sublease, ▇▇▇▇▇ Road (Dallas) Facility between
Seller and Buyer each as set forth as Exhibit I-2 - I-14 hereto.
Section 21. Section 1.183 of the Acquisition Agreement is amended by
deleting the reference to "other than up to 345,296 million Italian Lire
principal amount of indebtedness for borrowed money directly related to Seller's
assets in Italy constituting Acquired Assets".
Section 22. Sections 3.3(a) and 3.3(b) of the Acquisition Agreement are
amended by deleting Sections 3.3(a) and 3.3(b) in their entirety and replacing
them with the following:
(a) 28,933,092 fully paid and nonassessable unregistered
shares of Buyer Common Stock;
(b) Convertible Notes in an aggregate principal amount of
$ 324,703,000;
Section 23. Sections 3.4(a) and 3.4(b) of the Acquisition Agreement are
amended by deleting Sections 3.4(a) and 3.4(b) in their entirety and replacing
them with the following:
(a) Buyer shall deliver to Seller Note Purchasing
Subsidiary (i) $210 million aggregate principal amount of Subordinated
Notes, and (ii) Convertible Notes in an aggregate principal amount of
$415,297,000.
(b) Seller shall cause Seller Note Purchasing Subsidiary
to deliver to Buyer U.S. $550,261,699 of immediately available funds
(the "Cash Payment") to an account designated to Seller Note
Purchasing Subsidiary by Buyer in writing on or prior to the Closing
Date. The Notes shall be treated as debt instruments and the portion
thereof delivered to Seller Note Purchasing Subsidiary shall be
treated as having an aggregate issue price for purposes of Code
Section 1273 (and the regulations promulgated thereunder) equal to the
Cash Payment; the issue price per $1,000 of principal amount of Notes
shall be equal to $880.00 (the "Issue Price"). The issue price per
$1,000 of principal amount of the portion of the Convertible Notes not
delivered to the Seller Note Purchasing Subsidiary shall also be equal
to the Issue Price.
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Section 24. Section 3.4(c) of the Acquisition Agreement is amended to
delete the first sentence of Section 3.4(c). The second sentence of Section
3.4(c) is amended to delete the phrase "the Debt Valuation and".
Section 25. Section 4.1(e)(i) of the Acquisition Agreement is amended by
adding "(A)" immediately before the first sentence and "(B)" immediately before
the second sentence.
Section 26. Section 4.1(i) of the Acquisition Agreement is amended to
replace the word "Business" in the second sentence thereof with the words
"Acquired Assets and Assumed Liabilities."
Section 27. Section 4.1(n)(ii) of the Acquisition Agreement is amended
by deleting Section 4.1(n)(ii) in its entirety and replacing it with the
following:
(ii) The leases or other written agreements necessary to
establish a valid occupancy right or leasehold interest
for the Leased Facilities are or, as of the Closing, will
be in full force and effect for the benefit of the member
of the Buyer Operating Group (indicated in Section 4.1(n)
of the Seller Disclosure Letter), as lessee and there are
no material defaults or breaches attributable to any
member of the Seller Group or to the landlord or landowner
thereunder.
Section 28. Section 6.1(a) of the Acquisition Agreement is amended to
add, in the third sentence immediately following the phrase "(other than the
initial two subscriber shares already held by Seller)" the following:
and Singapore Newco's $150,253,000 5.47% Promissory Note as attached
hereto as Exhibit K (the "Singapore Newco Note")
Section 29. Section 6.1(b) of the Acquisition Agreement is amended by
deleting the last sentence of Section 6.1(b) in its entirety and by replacing it
with the following:
On or before the Closing Date, Seller shall cause Italian
Operating Company and Italian Newco to execute a contribution-in-kind
agreement (including appropriate schedules of assets to be assigned
to, and specific liabilities (including Contract liabilities) to be
assumed by, Italian Newco) with terms and conditions reasonably
satisfactory to Buyer.
Section 30. Section 6.4 of the Acquisition Agreement is amended (i) to
delete the word "Business" wherever it appears in such Section 6.4 and to
replace such word with the words "Acquired Assets and Assumed Liabilities" and
(ii) to delete the words "GAAP consistently applied and consistent with the GAAP
principles used to prepare the March Balance Sheet" wherever it appears in such
Section 6.4 and to replace such words with the words "Exhibit L hereto".
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Section 31. Section 6.4 is amended by adding, at the end thereof, new
Sections 6.4 (g) and (h) as follows:
(g) If, in connection with the contribution-in-kind
transaction contemplated in Section 6.1(b), Italian
Operating Company, within 90 days after the Closing Date,
contributes cash or marketable securities to Italian Newco
solely in order to make the value of net assets
contributed to Italian Newco equal to the contribution
value of net assets reported prior to the Closing, then
Buyer shall be obliged to promptly reimburse Seller for
such contribution made by Italian Operating Company in
satisfaction of such gross-up obligation. If Italian
Operating Company makes any such payment, the Buyer's
reimbursement obligation in respect thereof may be
satisfied by adding such amount to any payment by Buyer,
or deducting such amount from any payment by Seller, of
the Working Capital Requirement.
(h) Notwithstanding anything else in this Section 6.4, Seller
may, at its option elect to reassume and attempt to
collect for its benefit any accounts receivable of the
Business shown on the Closing Balance Sheet which remain
uncollected 90 days after the Closing Date, and in such
event, such accounts receivable shall not be included in
the Closing Balance Sheet. Moreover, from the Closing Date
to the date on which the Closing Balance Sheet is
delivered, Buyer agrees to use commercially reasonable
efforts to sell inventory at prevailing market rates.
Section 32. Section 6.15 of the Acquisition Agreement is amended by
adding to the end of the first sentence thereof the following:
; provided, however, that Licensed IP shall not include the words or
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name "Texas Instruments Incorporated", "Texas Instruments" or "TI", or
Seller's related monograms, logos, trademarks, trade names, or any
variations or combinations thereof.
Section 33. Section 6.18 of the Acquisition Agreement is amended by
deleting Section 6.18 in its entirety and by replacing it with the following:
The valuation and allocation of the purchase price and other
consideration exchanged in connection with the transactions
described herein (i) have been determined in accordance with the
Issue Price, the Tax Parameters and the applicable provisions of
Section 1060 of the Code, and (ii) are set forth in Exhibit M (such
valuation and allocation being referred to herein as the "Price
Allocation"). Exhibit M also sets forth certain assumptions that
were used in preparing the Price Allocation. The Price Allocation
shall be adjusted as necessary to reflect the Closing Balance Sheet
or the incorrectness of such assumptions. Any disputes involving the
Price Allocation shall
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be resolved in accordance with the procedures set forth in Section
6.4(d) hereof and the provisions of this Section 6.18. Each party
(and their respective Affiliates) hereto shall at its own expense
adopt and abide by such Price Allocation, Issue Price and Tax
Parameters for purposes of all Tax Returns filed by them and shall
not take any position inconsistent therewith in connection with any
examination of any Tax Return, any refund claim, or any judicial
litigation proceeding but only if doing otherwise in such judicial
litigation proceeding would materially prejudice the other party, or
otherwise until there has been a final "determination" (within the
meaning of Code Section 1313(a)) or any other event which finally
and conclusively establishes the amount of any liability for Taxes.
In the event that the Price Allocation is disputed by any Taxing
authority, the party receiving notice of the dispute shall promptly
notify the other parties hereto of such dispute and the parties
hereto shall consult with each other concerning resolution of the
dispute.
Section 34. Section 6.29 is amended by deleting the reference to "U.S.
$750 million" and replacing it with "Cash Payment".
Section 35. Article VI of the Acquisition Agreement is amended to add,
immediately following Section 6.31, new Sections 6.32, 6.33, 6.34, 6.34 and 6.35
as set forth below:
6.32 Cross-License Agreement. Buyer and Seller agree that the
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provisions of Section 4.5 of the Cross-License Agreement relating to
the consequences of an action for patent infringement brought by
Seller or any of its SUBSIDIARIES (as defined in the Cross-License
Agreement) against Micron Electronics, Inc. ("MEI") and/or Micron
Communications, Inc. ("MCC") shall remain applicable in the event such
action is brought against any successor in interest to all or
substantially all of the business and patents of MEI or MCC, as the
case may be.
6.33 Certain Technology Agreements.
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(a) Seller represents that it is a party to agreements, dated
December 9, 1988, November 15, 1991 and May 1, 1995 with Hitachi
("GT Projects"), agreements, dated January 30, 1997 and December 25,
1997 between Seller, Hitachi and Mitsubishi Electric Corporation
("Orion Project"), a License and Technical Assistance Agreement,
dated December 19, 1997, between Mitsubishi Electric Corporation and
Seller ("Project M"), and an agreement, dated August 1, 1989 between
Seller, Universita' degli Studi dell'Aquila and European Engineering
and Technologies ("Eagle Consortium"), each relating to the
development and manufacture of semiconductor products. To the extent
intellectual property has resulted from the sole and/or joint
activities of the parties to each of the foregoing agreements,
Seller and Buyer desire now to clarify Buyer's rights and Seller's
obligations with respect to such intellectual property as follows,
without limiting or
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diminishing any rights or licenses granted by other agreements between
Buyer and Seller:
(i) Seller hereby grants to Buyer and its Subsidiaries
a perpetual, non-exclusive, royalty-free, worldwide license
under any know how, trade secret, copyright and mask work
rights arising out of or transferred to Seller pursuant to the
Eagle Consortium as to which Seller and/or any of its
Subsidiaries ever had, acquired, or presently have a right to
use, such license to grant rights to Buyer to develop,
manufacture, have manufactured, use, sell, import or otherwise
dispose of semiconductor products for the respective lives of
the know-how, trade secret, copyright, and mask work rights.
(ii) Seller hereby grants to Buyer and its
Subsidiaries a perpetual, non-exclusive, royalty-free,
worldwide license of maximum scope (except that such license
shall be non-exclusive), including sublicensing rights, which
Seller is permitted to grant to Buyer under the "Termination
Agreement of GT Agreements," dated September 28, 1998,
"Termination Agreement of Orion Agreements," dated September
29, 1998, or "Memorandum on Termination of License and
Technical Assistance Agreement," dated September 29, 1998,
respectively, as to any know how, trade secret, copyright and
mask work rights arising out of or transferred to Seller
pursuant to the GT Projects, the Orion Project, or Project M,
respectively, such license to grant rights to Buyer to develop,
manufacture, have manufactured, use, sell, import or otherwise
dispose of semiconductor products for the respective lives of
the know-how, trade secret, copyright, and mask work rights.
(iii) With respect to patents jointly owned by Seller
arising out of the GT Projects or the Orion Project, Seller
agrees that it will not consent to any licensing framework for
any such joint patent that would allow any party to license or
enforce such joint patent to or against Buyer on terms that
would require Buyer to pay or offer any consideration of any
kind in exchange for such license. The terms "joint patents"
and "licensing framework" shall have the meaning ascribed to
them in the agreements relating to the GT Projects and the
Orion Project.
(b) Seller represents and warrants that there are no patents,
pending applications for patent, or disclosures which will result in
applications for patent arising out of or resulting from Project M
that are jointly owned by Seller and Mitsubishi Electric Corporation.
(c) Seller agrees that any patent(s) arising out of or resulting
from the Eagle Consortium shall be considered "TI PATENTS" as that
term is used in the Cross-License Agreement, attached as Exhibit C to
the Acquisition Agreement.
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(d) Notwithstanding any other indemnity provision in this
Agreement or any agreement or amendment associated with this
Agreement, and not subject to any limitations on any other indemnity
provision in this Agreement or any agreement or amendment associated
with this Agreement, Seller agrees to indemnify, defend and hold Buyer
and any Buyer subsidiary, including their respective directors,
officers, employees and agents harmless with respect to any claim that
any manufacture, use, sale, offer to sell or importation of any
product, any combination of such product with any other hardware
and/or software, any method or process used in the manufacture or
testing of such product, or any tools or equipment used for
accomplishing any of the foregoing infringes (a) any know how, trade
secret, copyright or mask work rights of the Eagle Consortium to which
Buyer received a license under subparagraph 1, above, (b) any Joint
Patent arising out of the GT Projects or the Orion Project, or (c) any
patent arising out of or resulting from the Eagle Consortium. This
indemnity shall apply regardless of whether such claim is brought by
Hitachi, Mitsubishi, parties to the Eagle Consortium, or any successor
in interest to any intellectual property identified in (a), (b) and
(c) herein. Seller agrees to pay all costs, expenses and fees arising
out of defense and investigation of such claim, including any and all
damages award or settlement amount resulting therefrom. In the event
an injunction is obtained against activities of Buyer or its
subsidiaries, Seller shall use all commercially reasonable efforts to
procure for Buyer the right to continue the activities which resulted
in the claim.
6.34 Transfers of Acquired Intellectual Property. To permit
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Buyer to specifically document the assignment of specific items of
Intellectual Property transferred to Buyer as Acquired Intellectual
Property, or to facilitate the recordation of such assignments, the
parties agree that it is desirable to have specific documents of
assignment. Accordingly, attached hereto as Exhibit N is an
"Assignment of Trademarks" currently recognized to be included within
Acquired Intellectual Property. To the extent that additional
trademarks may be identified within the Acquired Intellectual
Property, the parties agree that an assignment in the form of Exhibit
N may be utilized to document such assignment. Similarly, attached
hereto as Exhibit O is a "Form of Copyright Assignment" which the
parties agree is appropriate for use to document the assignment(s) of
Copyrights included within Acquired Intellectual Property, as agreed
upon by the parties subsequent to Closing.
6.35 Backlog. Backlog of DRAM products on the books of the
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Seller Group as of the Closing Date and scheduled for delivery to any
Seller Group customer (other than distributors) within thirty (30)
days of the Closing Date shall, to the extent such commitments were
entered into in the normal course of the Business consistent with past
practices, become backlog of Buyer or one of its Subsidiaries, which
shall honor applicable price, quantities and delivery dates; provided
that if Buyer or its Subsidiary reasonably determines that price,
quantities, delivery dates, credit or payment terms associated with
such backlog are not consistent with its
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customary policies and Buyer or its Subsidiary is unable to negotiate
acceptable terms with such customer, Buyer or its Subsidiary may
reject such backlog. Backlog scheduled for delivery to, and DRAM
inventory held at, the common distributors designated in the letter
agreements attached hereto as Exhibit P shall be treated in accordance
with the provisions of such letter agreements. The Seller Group shall
exercise commercially reasonable efforts to avoid scheduling backlog
for delivery within five (5) Business Days of the Closing Date.
Section 36. Section 6.6 of the Acquisition Agreement is amended by
deleting Section 6.6 in its entirety and by replacing it with the following:
6.6 Italian Operations.
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(a) Buyer shall cause employment levels in Italian Newco to
remain substantially equivalent to the level of employment as of the
Closing Date for a period commencing on the Closing Date and
terminating on the earlier to occur of (x) the publication in the
Italian Official Gazette of a CIPE resolution stating that investment
under the 1989 Program Contract is complete (the "Publication Date")
or (y) 18 months after the Closing Date; provided, however, that
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Italian Newco shall be entitled to terminate Italian Newco employees
for good reason and shall be allowed to reduce employment levels
through Italian Newco employee attrition; provided, further, that in
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all events Buyer shall cause Italian Newco to maintain levels of
employment consistent with the minimum requirements under the 1989
Program Contract (i.e. 1,270 employees) during such period. Buyer
shall cause employment levels in Italian Newco to remain at least
equal to the Required Employment Levels as in effect from time to time
for a period commencing on the earlier of (i) the Publication Date and
(ii) 18 months after the Closing Date and terminating 30 months from
the Closing Date. The restrictions in this Section 6.6(a) shall not
apply to Buyer or any of its affiliates to the extent Buyer or its
affiliates obtain appropriate approvals from competent Italian
Governmental Agencies permitting or otherwise authorizing the
reduction or elimination of the Required Employment Levels but only to
the extent of such reduction or elimination. For purposes of this
Agreement, "Required Employment Levels" means, on any particular date,
the number of Italian employees that Italian Newco is required to
employ at such date in accordance with the Ministerial Decrees issued
by the Italian Ministry of Treasury, Budget and Economic Programming
in connection with subsidies granted under the 1989 Program Contract.
(b) Buyer shall not sell or dispose of any item of Restricted
Equipment for a period commencing on the Closing Date and terminating
on the earlier to occur of (x) the Equipment Restriction Expiration
Date for that particular item of Restricted Equipment or (y) thirty
(30) months after the Closing Date, unless Buyer replaces such
Restricted Equipment with equipment more technologically advanced and
with greater book value; provided, however, that in no event shall any
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restriction extend
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beyond 30 months; provided, further, that the restrictions in this
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Section 6.6(b) shall not apply to Buyer or its Affiliates with respect
to any item of Restricted Equipment to the extent Buyer or its
Affiliates obtains approval in accordance with Article 8 of the
Gaspari Decree permitting such sale or disposition. For purposes of
this Agreement, (A) "Restricted Equipment" means equipment
constituting Acquired Assets subject to use restrictions under Article
8 of the Gaspari Decree, and (B) "Equipment Restriction Expiration
Date" means, with respect to any item of Restricted Equipment, the
date on which the restrictions under Article 8 of the Gaspari Decree
lapse or otherwise become inapplicable to such item of Restricted
Equipment.
(c) For a period commencing on the Closing Date and terminating
on the earlier to occur of (x) the Facility Restriction Expiration
Date for any particular Restricted Facility Portion or (y) 30 months
after the Closing Date, Buyer shall use such Restricted Facility
Portion for the manufacture of electronics products at levels of
activity that in the aggregate are substantially consistent with
activity levels at the Closing Date, taking into account the
contemplated conversion of the 6-inch line to the 8-inch line and the
implementation of new technology provided, however, that in no event
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shall any restriction extend beyond 30 months; provided, further, that
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the restrictions in this Section 6.6(c) shall not apply to Buyer or
any of its Affiliates with respect to any Restricted Facility Portion
to the extent Buyer or its Affiliates obtain approval in accordance
with Article 8 of the Gaspari Decree eliminating the restrictions with
respect to that Restricted Facility Portion. For purposes of this
Agreement, (A) "Restricted Facility Portion" means each portion of the
facility located at Avezzano, Italy constituting Acquired Assets
subject to the use restrictions under Article 8 of the Gaspari Decree,
and (B) "Facility Restriction Expiration Date" means, with respect to
each Restricted Facility Portion, the date on which all restrictions
under Article 8 of the Gaspari Decree lapse or otherwise become
inapplicable to such Restricted Facility Portion.
(d) In determining (i) the Required Employment Levels
applicable from time to time, (ii) the Equipment Restriction
Expiration Date with respect to any item of Restricted Equipment, and
(iii) the Facility Restriction Expiration Date with respect to any
Restricted Facility Portion for purposes of this Section 6.6, Buyer
shall be entitled to rely on the books and records included in the
Acquired Assets relating to the operations at Avezzano, and Buyer's
good faith determination thereof shall be conclusive and binding.
Buyer shall, and shall cause its Affiliates to, retain such books and
records and afford Seller and its representatives access thereto in
accordance with Section 6.28.
(e) Seller shall cause all bank Liens on the Acquired Assets in
Italy arising with respect to the indebtedness described in item 1 of
Exhibit J hereto (the "Avezzano Debt") to be fully released within six
months from the Closing Date and in
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no event shall any such Liens constitute Permitted Liens
notwithstanding anything to the contrary contained herein or in the
Seller Disclosure Letter.
(f) If at any time prior to the date 30 months following the
Closing Date, the Italian government fails to pay interest subsidies
in respect of the Avezzano Debt when due or within any applicable
grace periods, Buyer shall pay Seller or its designee, promptly on
demand, (x) 50% of any additional interest Seller or any of its
Affiliates is required to pay as a result thereof, and (y), without
duplication, 50% of any amounts paid by Seller of any of its
Affiliates in connection with the prepayment or acceleration of the
Avezzano Debt, provided that the aggregate amount payable by Buyer
pursuant to this Section 6.6(f) shall not exceed $30 million.
(g) Buyer shall, and shall cause its Affiliates to, provide to
the Italian Ministry of Treasury, Budget and Economic Programming
reasonable access to their facilities, books, records, auditors,
employees and agents in order to allow the completion of any
verification and audits relating to the 1989 Program Contract.
Section 37. Section 6.7 of the Acquisition Agreement is amended by
deleting Section 6.7 in its entirety and by replacing it with the following:
6.7 Transition Services Agreement. Seller and Buyer shall
-----------------------------
execute and deliver each Transition Services Agreement.
Section 38. Sections 6.10, 6.11 and 6.12 of the Acquisition Agreement
are amended by deleting such Sections 6.10, 6.11 and 6.12 in their entirety and
replacing them with the following:
6.10 Seller Disclosure Letter. On or prior to the Closing Date,
------------------------
Seller shall deliver to Buyer the Seller Disclosure Letter which shall
include all of Seller's disclosure schedules contemplated by this
Agreement. The Seller Disclosure Letter shall make specific reference
to only that particular Section (or, with respect to representations
and warranties, that particular subsection) as to which each
disclosure schedule included therein relates and, to the extent any
disclosure schedule included therein relates to more than one Section
(or more than one representation and warranty), then such disclosure
schedule shall include a specific cross-reference to the other
Sections (or other representations and warranties) to which such
disclosure schedule relates.
6.11 Buyer Disclosure Letter. On or prior to the Closing Date,
-----------------------
Buyer shall deliver to Seller the Buyer Disclosure Letter which shall
include all of Buyer's disclosure schedules contemplated by this
Agreement. The Buyer Disclosure Letter shall make specific reference
to only that particular Section (or, with respect to representations
and warranties, that particular subsection) as to which each
disclosure schedule included therein relates and, to the extent any
disclosure schedule included
13
therein relates to more than one Section (or more than one
representation or warranty), then such disclosure schedule shall
include a specific cross-reference to the other Sections (or other
representations and warranties) to which such disclosure schedule
relates.
6.12 JV Amendments. On or prior to the Closing Date, Buyer and
-------------
Seller shall use commercially reasonable efforts to cause the JV
Amendments to be duly executed, delivered, and in full force and
effect, and the transactions contemplated to occur thereunder on or
prior to the Closing to occur on or prior to the Closing.
Section 39. Section 6.25 of the Acquisition Agreement is amended by
adding the following language at the end thereof:
(e) Buyer hereby agrees to waive any claim that Buyer may
have against Seller arising out of: (i) Seller's manufacture and sale
of Low Density Flash, EPROM, Field Memory or PTEC products
(collectively "Waived Products"), (ii) Seller's sale of products
fabricated based upon Flash-type EPROM Wafers-in-Process originating
in Seller's Avezzano facility on or before the Closing Date (including
completed devices in inventory); and (iii) Seller's sale of 1 Meg and
4 Meg DRAM devices in inventory as of the Closing Date, not to exceed
350,000 devices total ("DRAM" in this subsection (iii) shall not
include Field Memory), where such claim is based on a violation of the
Covenant Not to Compete in Section 6.25 of this Agreement. To the
extent the manufacture or sale of any product is permitted by the
foregoing waiver (i.e., such product is a Waived Product; a Flash-type
EPROM under subsection (ii) above; or a DRAM under subsection (iii)
above), such product shall be deemed a Licensed Product under the
Cross License Agreement attached as Exhibit C to this Agreement. This
waiver shall apply without regard to the fabrication facility utilized
by Seller in the manufacture of Waived Products, provided that Seller
has an ownership interest either directly or through a wholly owned
subsidiary in any such fabrication facility so utilized of fifty
percent (50%) or more.
(f) Seller shall have the right to transfer to a third
party the entirety of its manufacturing operations relating to any one
of the Waived Products (whether or not equipment or facilities are
included in such transfer), and in connection with such transfer
Seller shall transfer or terminate its contractual commitments,
relating to such Waived Products; and, without otherwise diminishing
the provisions of Section 6.15, in the event of such transfer as to a
Waived Product, Buyer grants to Seller the right to sublicense to such
transferee Acquired Intellectual Property that is licensed to Seller
pursuant to Section 6.15(b) and that is directly related to and used
in the manufacturing of such Waived Product, the scope of such
sublicense being strictly limited to the manufacturing of such Waived
Product.
14
(g) The waiver provided in this Section is personal to
Seller, and in the event of such transfer, Buyer's waiver described
herein shall terminate and shall subsequently be void as to such
Waived Product. Nothing in the preceding sentence shall limit any
sublicense rights granted in subsection (f) above.
(h) Except as expressly waived in this Section, the
provisions of the Covenant not to Compete of Section 6.25 remain
undiminished and in full force and effect. Seller agrees that Buyer's
granting of the limited waiver and limited right to sublicense in this
Section shall not be considered to or deemed to in any way establish
any course of dealing between the parties; and further agrees that
Buyer shall not in any way be obligated to grant any further waiver
under the Covenant not to Compete or any further right to sublicense
under Section 6.15(b) in the future.
(i) For purposes of this Section, the following definitions
shall apply:
"Low Density Flash" as used herein shall mean: (a) Flash-
type EPROM memory products having the density levels up to 4
megabits manufactured at Seller's facility in Lubbock, Texas
as of the Closing Date and subject to lifetime buy orders
deadlines no later than January 1, 1999.
"EPROM" shall mean erasable programmable read only
memory products wherein erasure is accomplished through
exposure to ultraviolet light; EPROM shall not include "Flash-
type EPROM" memory products.
"Flash-type EPROM" (also known as "Flash-type EEPROM")
shall mean non volatile, reprogrammable memory devices in
which the storage cells include a floating gate, and in which
erasure of the storage cells is achieved through application
of electrical current.
"Field Memory" shall mean an application specific DRAM-
based memory product specifically designed for use in consumer
electronics applications and having dual I/O ports offering
independent and asynchronous serial read/write with limited or
no random accessing capabilities of the types manufactured by
Seller as of the Closing Date, which Seller believes to be the
following:
Devices TI Part Number
------- --------------
4C2072 SSOP TMS4C2072DT
4C2970 SSOP TMS4C2970DT
4C2972 SSOP TMS4C2972DT
4C2973 SSOP TMS4C2973DT
4C2973 TSSOP TMS4C2973DGL
4035 SSOP
15
92040 CSP
92040 QFP
UvFM 4C397X
; so long as such products are within the technical description
above and are products manufactured by Seller as of the Closing
Date. In no event shall Field Memory include any product
designed for use as main, cache or graphics memory in the PC or
High Definition Television (HDTV) space.
"PTEC" shall mean a custom Low Density Flash product which
consists of a flash core embedded within the control logic and
bus interface logic required by the microcontroller or other
processor devices and which is used within an engine control
system, and which Seller sells to Ford Motor Company ("Ford")
pursuant to a contract between Seller and Ford dated August 6,
1996; except that, without in any way limiting the definition of
Low Density Flash, PTEC products shall not be subject to the
lifetime buy order deadline of January 1, 1999 set forth in the
definition of Low Density Flash.
Without limiting the above in any way, the definition of each
of Field Memory and PTEC shall include, but not be limited to, any
such product as it may be modified from time to time after the Closing
to address customer-requested design changes and manufacturing
maintenance requirements, provided such modified product is consistent
in general form, functionality and operation with the specific
products identified above in the pertinent definitions.
Section 40. Section 6.31(a) of the Acquisition Agreement is amended by
deleting Section 6.31(a) in its entirety and replacing it with the following:
(a) For purposes of this Agreement, including Sections 2.1 and
2.2 hereof, "Transferred Contracts" shall mean each Contract to which
Seller, any of its Subsidiaries or any of their Affiliates is a party
primarily related to or primarily used in the Business (i) that was
entered into in the ordinary course of business consistent with past
practices and not of a type required to be listed in the Seller
Disclosure Letter pursuant to Section 4.1 or 4.2 hereof, or (ii)
listed on Schedule 6.31 to this Agreement (the "Transferred Contract
Schedule"). The Transferred Contract Schedule shall be prepared by
Buyer and delivered to Seller on or prior to the Closing Date and upon
delivery thereof, such schedule shall become a part of this Agreement
as if attached hereto as of the date hereof.
Section 41. Section 7.1(b) of the Acquisition Agreement is amended by
deleting subclause (i) thereof in its entirety and replacing it with the
following:
16
there are not pending or threatened any audits, examinations,
assessments, asserted deficiencies or written claims for Taxes
except as would not adversely affect the Acquired Assets or the
Business
Section 42. Section 7.1(c) of the Acquisition Agreement is amended by
adding, at the end thereof, the following:
, including, but not limited to, a "Section 24" election under the tax
laws of Singapore.
Section 43. Section 7.1(e) of the Acquisition Agreement is amended by
deleting the parenthetical phrase at the end thereof and replacing it with the
following:
(other than Seller with respect to Taxes not related to or adversely
affecting the Business or the Acquired Assets).
Section 44. Article VII of the Acquisition Agreement is amended by
adding, immediately following Section 7.1(o), new Sections 7.1(p) and 7.1(q) as
set forth below:
(p) Seller owns all right, title and interest in and to all of
the issued and outstanding capital stock of Singapore Newco and Seller
is the registered owner of such shares.
(q) Seller has caused Italian Operating Company to sell,
transfer, assign and deliver to Seller, and Seller has purchased and
accepted, all right, title and interest in and to all of the quota
of Italian Newco; the purchase price for such quota was
$301,087,000; appropriate steps have been taken to document the
transfer of such sale to Seller and Seller is the beneficial and
equitable owner of such quota and, after the making of any
appropriate filings and registrations, will be the registered owner
of such quota; and Seller has caused Italian Operating Company to
assign, transfer, and deliver to Italian Newco the "Plafond"
certification of Italian Operating Company and Italian Newco has
accepted such assignment, transfer, and delivery and such "Plafond"
certification is in full force and effect as of the date hereof.
Section 45. Section 8.1(a) of the Acquisition Agreement is amended by
deleting, in its entirety, the following:
Notwithstanding the foregoing sentence, Italian Operating Company
employees employed in the Business who are on maternity, disability or
other employer-approved leave of absence as of the Closing Date shall
only have their employment transferred as of the date, if any, upon
which they return to work at Buyer's facility. From the Closing Date
until the earlier to occur of (x) completion of the Italian
government's final audit relating to the 1989 Program Contract, or (y)
eighteen (18)
17
months after the Closing Date, Buyer shall cause employment levels
in Italian Newco to remain substantially equivalent to the level of
employment as of the Closing Date; provided, however, that Italian
-------- -------
Newco shall be entitled to terminate Italian Newco employees for
good reason and shall be allowed to reduce employment levels through
Italian Newco employee attrition; provided, further, that in all
-------- -------
events Buyer shall cause Italian Newco to maintain levels of
employment consistent with the minimum requirements under the 1989
Program Contract (i.e. 1,270 employees) during such
Section 46. Section 8.1(b) of the Acquisition Agreement is amended by
deleting, in its entirety, the following:
Notwithstanding the foregoing sentence, Singapore Operating Company
employees employed in the Business who are on maternity, disability or
other employer-approved leave of absence as of the Closing Date shall
only have their employment transferred as of the date, if any, upon
which they return to work at Buyer's facility.
Section 47. Section 8.1(c) of the Acquisition Agreement is amended to
delete "(e)" immediately after the phrase "set forth in Section 8.1" in line 2.
Section 48. Section 8.2(a) of the Acquisition Agreement is amended by
deleting Section 8.2(a) in its entirety and replacing it with the following:
(a) On the Closing Date, and thereafter while employed by
Italian Newco, each Transferred Business Employee employed by
Italian Newco shall continue, at Buyer's cost, to be covered by the
Employee Benefit Plans under which they were covered immediately
prior to the Closing Date that were established, maintained and
sponsored solely at the Italian Operating Company level to the
extent permitted by law and contract. On and after the Closing Date,
Transferred Business Employees employed by Singapore Newco
("Singapore Transferred Business Employees") shall continue, at
Buyer's cost, to be covered by the following Seller's Employee
Benefit Plans through December 31, 1998: Group Term Life Insurance,
Group Personal Accident Insurance, Group Hospitalization and
Surgical Insurance, Major Medical Insurance and Workmen's
Compensation Insurance. Except as set out in the immediately
preceding sentence, Seller agrees to use commercially reasonable
efforts to cause Singapore Operating Company to transfer the
Employee Benefit Plans under which Singapore Transferred Business
Employees were covered. immediately prior to the Closing Date to
Singapore Newco.
18
Section 49. Section 8.2(b) of the Acquisition Agreement is amended by
deleting the following:
; provided, however, that with respect to Transferred Business
-------- -------
Employees located in Texas ("Texas Transferred Business Employees"),
Buyer may elect in writing to Seller, but not less than thirty (30)
days prior to the Closing Date (the "Buyer COBRA Election"), not to
cover such employees under Buyer's group health and dental plans and
instead require Seller to offer COBRA continuation coverage to the
Texas Transferred Business Employees, with Buyer subsidizing the
employees' cost of COBRA coverage of the Texas Transferred Business
Employees who elect to receive COBRA coverage in the same dollar
amount as Buyer subsidizes the premium payments of Buyer's similarly
situated U.S. employees under Buyer's group health and dental plans.
In the event Buyer elects to ▇▇▇ the Buyer COBRA Election, Buyer
agrees to cover such Texas Transferred Business Employees as are still
employed by Buyer under Buyer's group health and dental plans no later
than January 1, 2000.
Section 50. Section 8.2(d) of the Acquisition Agreement is amended by
adding the phrase "and COBRA" immediately following the phrase "(HIPAA)".
Section 51. Section 8.3 of the Acquisition Agreement is amended by
deleting Section 8.3 in its entirety and replacing it with the following:
8.3 General Matters.
---------------
(a) Crediting of Service. Buyer, Italian Newco and Singapore
--------------------
Newco, as appropriate, shall credit each Transferred Business
Employee with all service with Seller and its Affiliates prior to
the Closing Date and with all amounts paid to each such Transferred
Business Employee prior to the Closing Date to the extent that
service or pay is relevant under any Employee Benefit Plan of Buyer,
Italian Newco or Singapore Newco for purposes of determining
eligibility to participate, vesting and benefit accrual.
(b) Credit of Deductible and Co-Payment Expenses. Buyer shall
--------------------------------------------
also provide Transferred Business Employees with credit under
Buyer's Medical Plan and Dental Plan for deductible and co-payment
amounts made by Transferred Business Employees under Seller's
Medical and Dental Plans prior to the Closing Date in the plan years
in which the Closing Date occurs. Seller agrees to provide
deductible and co-payment information with respect to the
Transferred Business Employees as soon as it practicable following
the Closing Date to effectuate such crediting of deductibles and co-
payment amounts. Seller agrees to provide Buyer with service
commencement date and prior compensation information with respect to
each potential Transferred Business Employee as soon as practicable
after the date upon which this Agreement is executed.
19
(c) Pre-Existing Condition Limitation. Buyer shall provide
---------------------------------
Transferred Business Employees with credit under Buyer's Medical
Plan pre-existing condition limitation for time spent on Seller's
Medical Plan.
(d) Cooperation. Commencing with the date upon which this
-----------
Agreement is executed, Seller and Buyer agree to cooperate fully
with respect to the employment-related actions which are necessary
or reasonably desirable to accomplish the transactions contemplated
pursuant to this Agreement, including the provision of records and
information as each may reasonably request (including job titles,
short and long-term disability coverage, life insurance coverage,
operator certification and workers' compensation records and
information) and the making of all appropriate filings under the
Law.
Section 52. Section 8.5(d) of the Acquisition Agreement is amended by
replacing the word "whom" with the word "who".
Section 53. Sections 9.2(b), 9.2(c) and 9.2(g) are amended by deleting
Sections 9.2(b), 9.2(c) and 9.2(g) in their entirety and replacing them with the
following:
(b) JV Amendments. The JV Amendments shall be duly executed,
-------------
delivered, in full force and effect and the transactions
contemplated to occur on or prior to the Closing in accordance with
the terms thereunder shall have occurred on or prior to the Closing
Date.
(c) Transition Services Agreement. Each Transition Services
-----------------------------
Agreement shall have been duly executed and delivered by Seller and
shall be in full force and effect.
(g) Financing. TECH shall have received financing in an
---------
aggregate amount of $450 million on terms and conditions
satisfactory to Buyer.
Section 54. Section 9.2 of the Acquisition Agreement is amended by
adding, immediately following Section 9.2(k), new Section 9.2(1) as follows:
(l) Statutory Declaration. Buyer shall have received the
---------------------
Statutory Declaration as defined under Singapore Law.
Section 55. Sections 9.3(b) and 9.3(c) are hereby amended by deleting
Sections 9.3(b) and 9.3(c) in their entirety and replacing them with the
following:
(b) JV Amendments. The JV Amendments shall be duly executed,
-------------
delivered, in full force and effect and the transactions
contemplated to occur on or
20
prior to the Closing in accordance with the terms thereunder
shall have occurred on or prior to the Closing Date.
(c) Transition Services Agreement. Each Transition Service
-----------------------------
Agreement shall have been duly executed and delivered by Buyer and
shall be in full force and effect.
Section 56. Section 10.2(c) is amended to add, immediately after "(B)"
in line 3 before the reference to "10.2(a)(iii)" the following:
, arising under Section
Section 57. Article X is amended by adding, immediately following
Section 10.11, new Sections 10.12 and 10.13 as follows:
10.12 Exclusive Remedy. The indemnification provisions of
----------------
this Article X shall be the exclusive remedy available to any party
hereto with respect to monetary damages in the event of any breach
by any other party hereto of any representation, warranty, covenant
or agreement set forth in this Agreement (other than any actions
under Section 12.2 below).
10.13 Singapore Real Property Indemnification. Seller hereby
---------------------------------------
agrees to indemnify, defend and hold harmless the Indemnified Buyer
Group from and against, for, and in respect of any and all Claims and
Losses asserted against, arising out of, relating to, imposed upon or
incurred by any member of the Indemnified Buyer Group, directly or
indirectly, by reason of or resulting from any delay or refusal by the
Jurong Town Corporation (a body corporate incorporated under the
Jurong Town Corporation Act and located in ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇▇▇)("▇▇▇") to issue a lease upon the
amalgamation of the lots comprising each of the Singapore Properties
(defined below), to the extent arising from, or in connection with any
failure or delay, prior to the Closing Date, by the Seller, or any of
its affiliates or TECH, to carry out any action, or take any step
required by any of the covenants, stipulations and conditions
contained in, or implied into, any of the written agreements, deeds,
or instruments between JTC and any member of the Seller Group
(collectively, the "Title Documents") as necessary to cause such lease
to be issued in respect of, or relating to, the following properties
(hereinafter "Singapore Properties"):
(A) The whole of Lot 1740 Town Subdivision 17 (also known as
Private Lots A1627 and A1627 (a)) together with the
buildings erected thereon and known as ▇▇▇ ▇▇▇▇▇▇▇▇▇
▇▇▇▇, ▇▇▇▇▇▇▇▇▇; and
21
(B) The whole of Lot 2801 (also known as Private Lot 12408) and
▇▇▇ ▇▇▇▇ (▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇(▇)) both of Mukin
13 together with the buildings erected thereon and known as
▇▇. ▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇ ▇▇▇▇▇▇ 1;
For the purposes of this Agreement, the term "Governmental Agency"
shall be defined to include the Jurong Town Corporation. For purposes
of this Agreement, Seller's indemnification obligation under this
Section 10.13 shall be treated as a "Buyer Indemnified Claim" and
shall be subject to the Threshold Amount and Maximum Amount set forth
in Section 10.2(b) hereof.
The indemnification obligation set forth in this Section 10.13 shall
in any event expire with respect to each of the Singapore Properties
on the day that is thirty (30) days following the date of the issuance
by the JTC of a lease to a member of the Indemnified Buyer Group for
such property.
Section 58. Section 11.1 of the Agreement is amended by deleting Section
11.1 in its entirety and replacing it with the following:
11.1 Intentionally Omitted.
Section 59. Article XII of the Acquisition Agreement is amended to add,
immediately following Section 12.13, new Section 12.14 as follows:
12.14 Royalty Bearing Products. Buyer and Seller hereby agree
------------------------
that the term "Royalty Bearing Products" as defined in Section 1.18 of
the previous Semiconductor Cross License between Buyer and Seller
having an effective date of January 1, 1994 (the "Previous Cross-
License"), the term of which and the respective licenses granted under
which expire December 31, 1998, shall not include any product
manufactured at any facility transferred by Seller to Buyer pursuant
to this Agreement, and that the term "Net Sales Billed" as defined in
Section 1.20 of the Previous Cross-License shall not include any
revenues of any kind derived as a result of Buyer's operation of the
Business or any of the Acquired Assets.
Section 60. Seller agrees promptly following the Closing, but in no
event later than 23 days after the date hereof, to supplement and reformat
Section 4.1(e) of the Seller Disclosure Letter, as reasonably requested by
Buyer, to be fully responsive to the requirements of Section 4.1(e) of the
Agreement and Buyer agrees to negotiate such supplements and reformatting in
good faith.
Section 61. THIS SECOND AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE LAWS OF THE STATE OF DELAWARE, WITHOUT GIVING EFFECT TO THE
PRINCIPLES GOVERNING CONFLICTS OF LAW.
22
IN WITNESS WHEREOF, the undersigned have caused this Second Amendment to be
executed as of the date first above written.
MICRON TECHNOLOGY, INC.
By: _____________________________________________
Name:
Title:
TEXAS INSTRUMENTS INCORPORATED
By: _____________________________________________
Name:
Title:
23