Qimonda AG Registered no par value Ordinary Shares in the form of American Depositary Shares (each representing one Ordinary Share) or Ordinary Shares UNDERWRITING AGREEMENT
Registered no par value Ordinary Shares in the form of American Depositary Shares (each
representing one Ordinary Share) or Ordinary Shares
representing one Ordinary Share) or Ordinary Shares
August [ ], 2006
Credit Suisse Securities (USA) LLC
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the Several Underwriters listed in Schedule A hereto,
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
As Representatives of the Several Underwriters listed in Schedule A hereto,
Dear Sirs:
1. 1. Introductory. Qimonda AG, a stock corporation incorporated in the Federal Republic of
Germany (“Germany”) and registered with the commercial register of the Local Court in Munich (the
“Commercial Register”) under the number HRB 152545 (the “Company”), agrees with the several
Underwriters named in Schedule A hereto (the “Underwriters”) to issue and sell, and the
Underwriters severally agree to purchase, an aggregate of 42,000,000 registered no par-value
ordinary shares (“Shares”) of the Company (the “New Shares”), and Infineon Technologies AG, a stock
corporation incorporated in Germany and registered with the Commercial Register under the number
HRB 126492 (“Infineon”) agrees severally with the Underwriters to sell, and the Underwriters
severally agree to purchase, an aggregate of 21,000,000 registered no par-value ordinary shares of
the Company (the “Existing Firm Underlying Shares”). The New Shares and the Existing Firm
Underlying Shares are hereinafter together referred to as the “Firm Underlying Shares”. The Firm
Underlying Shares will be deposited by Infineon with Citibank AG, as custodian (the “Custodian”)
and delivered in the form of American Depositary Shares (the “Firm ADSs”) by the Custodian to
Citibank, N.A., as depositary (the “Depositary”). The Firm Underlying Shares and the Firm ADSs are
hereinafter together referred to as the “Firm Securities”. Credit Suisse Securities (USA) LLC
(“Credit Suisse”), Citigroup Global Markets Inc. (“Citigroup”) and ▇.▇.▇▇▇▇▇▇ Securities Inc.
(“▇.▇.▇▇▇▇▇▇”) shall act as representatives (the “Representatives”) of the Underwriters. Infineon
also agrees to sell to the Underwriters, at the option of the Underwriters, an aggregate of not
more than 9,450,000 additional registered no par-value ordinary shares of the Company (the
“Optional Underlying Shares”) as set forth below. The Existing Firm Underlying Shares and the
Optional Underlying Shares are hereinafter together referred to as the “Existing Shares”. To the
extent Optional Underlying Shares are sold to the Underwriters pursuant to such Option, such
Optional Underlying Shares will be deposited by Infineon with the Custodian and delivered in the
form of ADSs (the “Optional ADSs”) by the Custodian to the Depositary. The Optional Underlying
Shares and the Optional ADSs are hereinafter together referred to as the “Optional Securities”.
The Firm Securities and the Optional Securities are hereinafter together referred to as the
“Offered Securities”. The ADSs and the Shares are hereinafter together referred to as the
“Securities”.
Each American Depositary Share (“ADS”) will represent one registered no par-value ordinary
share of the Company. The ADSs will be evidenced by American Depositary Receipts (“ADRs”) to be
issued pursuant to a Deposit Agreement (“Deposit Agreement”), to be dated as of the First Closing
Date (as defined below), to be entered into among the Depositary, the Company and all holders and
beneficial owners from time to time of the ADRs. Each reference herein to an ADR shall include the
corresponding ADS, and vice versa. The Offered Securities will be offered in a public offering in
the
United States of America and in private
placements to qualified investors in other
jurisdictions (the “Offering”).
The Company
and Infineon hereby agree with the several Underwriters as follows:
2. Representations
and Warranties of the Company. The Company represents and warrants to,
and agrees with, the several Underwriters that:
(a) Filing
and Effectiveness of Registration Statement. The Company has filed with
the Commission a registration statement on Form F-1 (No. 333- ) covering the
registration of the Offered Securities under the Act, including a related preliminary
prospectus or prospectuses. Certain terms are defined at the end of this subsection. At
any particular time, this initial registration statement, in the form then on file with the
Commission, all information contained in the registration statement (if any) pursuant to
Rule 462(b) and then deemed to be a part of the initial registration statement, and all
430A Information and all 430C Information, that in any case has not then been superseded or
modified, shall be referred to as the “Initial Registration Statement”. The Company may
also have filed, or may file with the Commission, a Rule 462(b) registration statement
covering the registration of Offered Securities. At any particular time, this Rule 462(b)
registration statement, in the form then on file with the Commission, including the
contents of the Initial Registration Statement incorporated by reference therein and
including all 430A Information and all 430C Information, that in any case has not then been
superseded or modified, shall be referred to as the “Additional Registration Statement”.
As of
the time of execution and delivery of this Agreement, the Initial Registration
Statement has been declared effective under the Act and is not proposed to be amended.
Any Additional Registration Statement has or will become effective upon filing with
the Commission pursuant to Rule 462(b) and is not proposed to be amended. The Offered
Securities all have been or will be duly registered under the Act pursuant to the Initial
Registration Statement and, if applicable, the Additional Registration Statement.
For purposes
of this Agreement:
“430A
Information”, with respect to any registration statement, means information
included in a prospectus and retroactively deemed to be a part of such registration
statement pursuant to Rule 430A(b).
“430C
Information”, with respect to any registration statement, means information
included in a prospectus then deemed to be a part of such registration statement pursuant
to Rule 430C.
“Act”
means the Securities Act of 1933, as amended.
“Applicable
Time” means: 00 [a/p]m (Eastern time) on August ___, 2006.
“Closing
Date” has the meaning defined in Section 4 hereof.
“Commission”
means the Securities and Exchange Commission.
“Effective
Date” with respect to the Initial Registration Statement or the Additional
Registration Statement (if any) means the date of the Effective Time thereof.
“Effective
Time” with respect to the Initial Registration Statement or, if filed prior
to the execution and delivery of this Agreement, the Additional Registration Statement
means the date and time as of which such Registration Statement was declared effective by
the Commission or has become effective upon filing pursuant to Rule 462(c). If an
Additional Registration Statement has not been filed prior to the execution and delivery of
this Agreement but the Company has advised the Representatives that it proposes to file
one, “Effective Time” with respect to such Additional Registration Statement means the date
and time as of which such Registration Statement is filed and becomes effective pursuant to
Rule 462(b).
“Exchange
Act” means the Securities Exchange Act of 1934.
2
“Final Prospectus” means the Statutory Prospectus that discloses the public offering
price, other 430A Information and other final terms of the Offered Securities and otherwise
satisfies Section 10(a) of the Act.
“General Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is intended for general distribution to prospective investors, as evidenced by its
being so specified in Schedule B to this Agreement.
“Issuer Free Writing Prospectus” means any “issuer free writing prospectus,” as
defined in Rule 433, relating to the Offered Securities in the form filed or required to be
filed with the Commission or, if not required to be filed, in the form retained in the
Company’s records pursuant to Rule 433(g).
“Limited Use Issuer Free Writing Prospectus” means any Issuer Free Writing Prospectus
that is not a General Use Issuer Free Writing Prospectus.
A “Registration Statement” at any particular time means the Initial Registration
Statement and any Additional Registration Statement as of such time. A “Registration
Statement” without reference to a time means such Registration Statement as of its
Effective Time. The Initial Registration Statement and the Additional Registration
Statement are referred to collectively as the “Registration Statements” and individually as
a “Registration Statement”. For purposes of the foregoing definitions, 430A Information
with respect to a Registration Statement shall be considered to be included in such
Registration Statement as of the time specified in Rule 430A.
“Rules and Regulations” means the rules and regulations of the Commission.
“Statutory Prospectus” as of any particular time means the prospectus included in a
Registration Statement immediately prior to that time, and any 430A Information or 430C
Information with respect to such Registration Statement. For purposes of the foregoing
definition, 430A Information shall be considered to be included in the Statutory Prospectus
as of the actual time that form of prospectus is filed with the Commission pursuant to Rule
424(b) or Rule 462(c) and not retroactively.
Unless otherwise specified, a reference to a “rule” is to the indicated rule under the
Act.
(b) Compliance with Securities Act Requirements. (i) On its respective Effective
Date, on the date of this Agreement, on the date of the Pricing Agreement and on each
Closing Date, each of the Initial Registration Statement and the Additional Registration
Statement (if any) conformed and will conform in all respects to the requirements of the
Act and the Rules and Regulations and did not and will not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) on the date of this
Agreement, and at the time of filing of the Final Prospectus pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional Registration Statement
in which the Final Prospectus is included, and on each Closing Date, the Final
Prospectus will conform in all respects to the requirements of the Act and the Rules and
Regulations and will not include any untrue statement of a material fact or omit to state
any material fact required to be stated therein or necessary to make the statements therein
not misleading. The preceding sentence does not apply to statements in or omissions from
any such document based upon written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood
and agreed that the only such information is that described as such in Section 10(b)
hereof.
(c) Filing and Effectiveness of Registration Statement in respect of the ADSs. (i) A
registration statement on Form F-6 (No. 333-[ ]) in respect of the ADSs has been filed
with the Commission and such registration statement has become effective pursuant to the
Rules and Regulations (such registration statement, including all exhibits thereto, at the
time it became effective, being hereinafter referred to as the “ADS Registration
Statement”), (ii) no stop order suspending the effectiveness of the ADS Registration
Statement is in effect, and no proceedings for such purpose are pending before or, to the
knowledge of the Company, threatened by the Commission, (iii) the ADS Registration
Statement complies and, as amended or supplemented will comply in all material respects
with the Act and the applicable
3
Rules and Regulations, and (iv) the ADS Registration Statement, when it became
effective, did not contain and, on each Closing Date and as amended or supplemented, will
not contain any untrue statement of a material fact or omit to state a material fact
necessary to make the statements therein not misleading.
(d) Ineligible Issuer Status. At the time of initial filing of the Initial
Registration Statement and at the date of this Agreement, the Company (i) was
not and is not an “ineligible issuer,” as defined in Rule 405 and (ii) was not and, in the
preceding three years, had not been the subject of a bankruptcy petition or insolvency or
similar proceeding.
(e) General Disclosure Package. As of the Applicable Time, neither (i) the General
Use Issuer Free Writing Prospectus(es) issued at or prior to the Applicable Time and the
preliminary prospectus, dated [ ], 2006 (which is the most recent Statutory Prospectus
distributed to investors generally) and the other information, if any, stated in
Schedule B to this Agreement to be included in the General Disclosure Package, all
considered together (collectively, the “General Disclosure Package”), nor (ii) any
individual Limited Use Issuer Free Writing Prospectus, when considered together with the
General Disclosure Package, included any untrue statement of a material fact or omitted to
state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading. The preceding sentence does
not apply to statements in or omissions from any Statutory Prospectus or any Issuer Free
Writing Prospectus in reliance upon and in conformity with written information furnished to
the Company by any Underwriter through the Representatives specifically for use therein, it
being understood and agreed that the only such information furnished by any Underwriter
consists of the information described as such in Section 10(b) hereof.
(f) Issuer Free Writing Prospectuses. Each Issuer Free Writing Prospectus, as of its
issue date and at all subsequent times through the completion of the public offer and sale
of the Offered Securities or until any earlier date that the Company notified or notifies
the Representatives as described in the next sentence, did not, does not and will not
include any information that conflicted, conflicts or will conflict with the information
then contained in the Registration Statement. If at any time following issuance of an
Issuer Free Writing Prospectus there occurred or occurs an event or development as a result
of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information then contained in the Registration Statement or as a result of which such
Issuer Free Writing Prospectus, if republished immediately following such event or
development, would include an untrue statement of a material fact or omitted or would omit
to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading, (i) the Company has promptly
notified or will promptly notify the Representatives and (ii) the Company has promptly
amended or will promptly amend or supplement such Issuer Free Writing Prospectus to
eliminate or correct such conflict, untrue statement or omission.
(g) Good Standing of the Company. The Company is a stock corporation
(Aktiengesellschaft) duly registered with the Commercial Register in Munich, Germany, and
is validly existing under the laws of Germany, has the corporate power and authority to
own, lease and operate its property as described in the General Disclosure Package and the
Final Prospectus and to conduct its business and is duly qualified to transact business and
is in good standing (if applicable) under the laws of each jurisdiction in which it owns,
leases or operates its properties or conducts its business so as to require such
qualification, except to the extent that the failure to be so qualified would not
individually or in the aggregate have a material adverse effect on the condition (financial
or otherwise), results of operations, business, properties or prospects of the Company and
its subsidiaries taken as a whole (“Material Adverse Effect”).
(h) Subsidiaries. Each “significant subsidiary” of the Company (as such term is
defined in Rule 1-02 of Regulation S-X) is listed on Schedule C each a “Material
Subsidiary” and, collectively, the “Material Subsidiaries”). Each Material Subsidiary has
been duly
4
incorporated and is existing and in good standing, if applicable, under the laws of
the jurisdiction of its incorporation, with the corporate power and authority to own its
properties and conduct its business as described in the General Disclosure Package and the
Final Prospectus; and each Material Subsidiary has been duly qualified to do business as a
foreign corporation in good standing (if applicable) in all other jurisdictions in which
its ownership or lease of property or the conduct of its business requires such
qualification, except to the extent that the failure to be so qualified would not
reasonably be expected to have a Material Adverse Effect; all of the issued and outstanding
capital stock of each Material Subsidiary has been duly authorized and validly issued and
is fully paid and nonassessable; and except as disclosed in the General Disclosure Package
and Final Prospectus, the capital stock of each Material Subsidiary, directly or through
subsidiaries, is owned free from liens, encumbrances and defects.
(i) Offered Securities. The Offered Securities and all other outstanding shares of
capital stock of the Company have been or, when issued will be, duly authorized; the equity
capitalization of the Company is as set forth in the General Disclosure Package and the
Final Prospectus; all outstanding shares of capital stock of the Company, including the New
Shares when subscribed, paid for and registered with the Commercial Register and delivered
as provided herein, are, and, when the Offered Securities have been delivered and paid for
in accordance with this Agreement on each Closing Date, will be, validly issued, fully
paid, nonassessable, freely transferable and free of any third party rights and conform to
the description of the Offered Securities contained in the General Disclosure Package and
the Final Prospectus; any preemptive rights of any existing shareholders in connection with
the offer and sale of the Offered Securities are validly excluded or waived and will be
validly excluded or waived at the respective time of delivery (Ausgabe); and none of the
outstanding shares of capital stock of the Company have been issued in violation of any
preemptive or similar rights of any security holder.
(j) Finder’s Fee. Except as disclosed in the General Disclosure Package and the Final
Prospectus, there are no contracts, agreements or understandings between the Company and
any person that would give rise to a valid claim against the Company or any Underwriter for
a brokerage commission, finder’s fee or other like payment in connection with this
offering.
(k) Registration Rights. There are no contracts, agreements or understandings between
the Company and any person granting such person the right to require the Company to file a
registration statement under the Act with respect to any securities of the Company owned or
to be owned by such person or to require the Company to include such securities in the
securities registered pursuant to a Registration Statement or in any securities being
registered pursuant to any other registration statement filed by the Company under the Act
(collectively, “registration rights”).
(l) Listing. The Offered Securities have been approved for listing on the New York
Stock Exchange, subject to notice of issuance.
(m) Absence of Further Requirements. No consent, approval, authorization, or order
of, or filing or registration with, any person (including any governmental agency or body
or any court in the jurisdictions listed on Schedule E attached hereto) is required to be
obtained or made by the Company for the consummation of the transactions contemplated by
this Agreement in connection with the offering, issuance and sale of the Offered Securities
by the Company, except such as have been obtained, or made and such as may be required
under German or U.S. state securities or blue sky laws and except for the filing of the
application for registration of the capital increase and the registration of the capital
increase creating the New Shares in the Commercial Register.
(n) Title to Property. Except as disclosed in the General Disclosure Package and the
Final Prospectus, and with such exceptions as would not have a Material Adverse Effect, the
Company and its subsidiaries have good and marketable title to all real properties and all
other properties and assets owned by them (other than Intellectual Property, with regard to
which
5
warranties are given by the Company pursuant to Section 2(t) hereof), in each case
free from liens, charges, encumbrances and defects that would materially affect the value
thereof or materially interfere with the use made or to be made thereof by them and, except
as disclosed in the General Disclosure Package and the Final Prospectus, and with such
exceptions as would not have a Material Adverse Effect, the Company and its subsidiaries
hold any leased real or personal property under valid and enforceable leases with no terms
or provisions that would materially interfere with the use made or to be made thereof by
them.
(o) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of this Agreement, the Deposit Agreement, the Pricing Agreement
and the issuance and sale of the Offered Securities will not result in a breach or
violation of any of the terms and provisions of, or constitute a default or a Debt
Repayment Triggering Event (as defined below) under, or result in the imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of its
subsidiaries pursuant to, (i) the charter or by-laws of the Company or any of its
subsidiaries, (ii) any statute, rule, regulation of any governmental agency or body or any
court, domestic or foreign, or, to the Company’s knowledge, any order of any U.S. or
German governmental agency or body of court, in each case having jurisdiction over the
Company or any of its subsidiaries or any of their properties, (iii) or any agreement or
instrument to which the Company or any of its subsidiaries is a party or by which the
Company or any of its subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject except, in the case of this clause (iii),
where any such breach, violation, default or lien of any such agreement or instrument would
not have a Material Adverse Effect; a “Debt Repayment Triggering Event” means any event or
condition that gives, or with the giving of notice or lapse of time would give, the holder
of any note, debenture, or other evidence of indebtedness (or any person acting on such
holder’s behalf) the right to require the repurchase, redemption or repayment of all or a
portion of such indebtedness by the Company or any of its subsidiaries.
(p) Absence of Existing Defaults and Conflicts. Neither the Company nor any of its
Material Subsidiaries is in violation of its respective charter or by-laws nor is the
Company or any of its subsidiaries in default (or with the giving of notice or lapse of
time would be in default) under any existing obligation, agreement, covenant or condition
contained in any indenture, loan agreement, mortgage, lease or other agreement or
instrument to which any of them is a party or by which any of them is bound or to which any
of the properties of any of them is subject, except such defaults that would not,
individually or in the aggregate, have a Material Adverse Effect.
(q) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by the Company, and the Pricing Agreement, when executed and delivered by the
parties thereto, will have been duly authorized, executed and delivered by the Company.
(r) Possession of Licenses and Permits. The Company and its subsidiaries possess, and
are in compliance with the terms of, all certificates, authorizations, franchises, licenses
(other than licenses relating to Intellectual Property with regard to which warranties are
given pursuant to Section 2(t) below) and permits (“Licenses”) used in conducting its
business as it is now conducted by them or proposed in the General Disclosure Package and
the Final Prospectus to be conducted by them, except where a failure to possess or comply
with the terms of any such License would not have a Material Adverse Effect, and have not
received any notice of proceedings relating to the revocation or modification of any
Licenses that, if determined adversely to the Company or any of its subsidiaries, would
individually or in the aggregate have a Material Adverse Effect.
(s) Absence of Labor Dispute. No labor dispute with the employees of the Company or
any of its subsidiaries exists or, to the knowledge of the Company, is imminent, that could
reasonably be expected to have a Material Adverse Effect.
(t) Possession of Intellectual Property. Except as set forth in the General
Disclosure Package and the Final Prospectus and except as could not reasonably be expected
to result in a
6
Material Adverse Effect, the Company, directly or through its subsidiaries, has
(subject to any conflicts or infringements covered exclusively by the next succeeding
sentence) sufficient interests in or rights to use all patents, trademarks, service marks,
trade names, copyrights, domain names, licenses, approvals, trade secrets, inventions,
technology know-how, information, proprietary rights and processes (“Intellectual
Property”) for the Company’s current business affairs (being the business of the Company
and its subsidiaries taken as a whole) as described in the General Disclosure Package and
the Final Prospectus. Except as disclosed in the General Disclosure Package and the Final
Prospectus and except as could not reasonably be expected to result in a Material Adverse
Effect, (i) to the Company’s knowledge, there are no rights of third parties to any of the
Intellectual Property Rights owned by the Company or its subsidiaries, and (ii) there is no
pending or, to the Company’s knowledge, threatened action, suit, proceeding or claim by
others challenging the Company’s or any subsidiary’s rights in or to, any of the Company’s
Intellectual Property Rights, and the Company is unaware of any facts that would form a
reasonable basis for any such claim, provided, however, that the representations made in
each of (i) and (ii) are based on the evaluation the Company could reasonably conduct on
the dates on which such representations were made. Except as disclosed in the General
Disclosure Package and the Final Prospectus, neither the Company nor any of its Material
Subsidiaries has received any written communications alleging that the Company or any of
its subsidiaries has violated, infringed or conflicted with, or, by conducting its business
as set forth in the General Disclosure Package and the Final Prospectus, would violate,
infringe or conflict with, any of the Intellectual Property of any other person or entity
other than any such as could not reasonably be expected, based on the evaluation the
Company could reasonably conduct by the date on which the representation in this Section
2(t) is being made, to have a Material Adverse Effect. The Company and its subsidiaries
have taken and will maintain reasonable measures to prevent the unauthorized dissemination
or publication of their respective confidential information and, to the extent
contractually required to do so, the confidential information of third parties in their
possession, where the dissemination of such information could reasonably be expected to
have a Material Adverse Effect.
(u) Environmental Laws. Except as disclosed in the General Disclosure Package and the
Final Prospectus, neither the Company nor any of its subsidiaries is in violation of any
statute, any rule, regulation, decision or, to the Company’s knowledge, any order of any
governmental agency or body or any court, domestic or foreign, relating to the use,
disposal or release of hazardous or toxic substances or relating to the protection or
restoration of the environment or human exposure to hazardous or toxic substances
(collectively, “environmental laws”), owns or operates any real property contaminated with
any substance that is subject to any environmental laws, is liable for any off-site
disposal or contamination pursuant to any environmental laws, or is subject to any claim
relating to any environmental laws, which violation, contamination, liability or claim
would individually or in the aggregate have a Material Adverse Effect; and the Company is
not aware of any pending investigation which might lead to such a claim.
(v) Accurate Disclosure. The statements in the General Disclosure Package and the
Final Prospectus under the headings “Prospectus Summary-Our Carve-Out From Infineon”, “Risk
Factors- Risks related to our operations-Some of our agreements with strategic partners,
such as our Inotera Memories joint venture with Nanya, have restrictions on transfers of
the shares of the ventures they create that could cause our ownership or equity interest in
these ventures to revert to Infineon, if Infineon ceases to be our majority owner, and
Infineon is holding our interest in Inotera in trust for us, which could subject us to loss
were Infineon to become insolvent”, “Risk Factors-Risks related to our operations-Sanctions
in the United States and other countries against us and other DRAM producers for
anticompetitive practices in the DRAM industry and related civil litigation may have a
direct or indirect material adverse effect on our operations”, “Risk Factors- Risks related
to our operations- An unfavorable outcome in the pending securities litigation against
Infineon or the incurrence of significant costs in the defense of this litigation may have
a direct or indirect material adverse effect on our operations”, “Risk Factors- Risks
related to our operations- We may not be able to protect our proprietary intellectual
property or obtain rights to intellectual property of third parties
7
needed to operate our business”, “Risk Factors- Risks related to our operations- We
may be accused of infringing the intellectual property rights of others”, “Articles of
Association”, “Related Party Transactions”, “Taxation”, “Description of American Depositary
Shares”, “Shares Eligible for Future Sale”, “Our Business-Strategic Alliances and
Agreements”, “Our Business-Intellectual Property” and “Our Business-Legal Matters”, insofar
as such statements summarize legal matters, agreements, documents or proceedings discussed
therein, are accurate and fair summaries of such legal matters, agreements, documents or
proceedings and present the information required by the applicable Rules and Regulations to
be presented therein.
(w) Statistical and Market-Related Data. Any third-party statistical and
market-related data included in a Registration Statement or a Statutory Prospectus,
including but not limited to the market reports referred to in the General Disclosure
Package and the Final Prospectus under the heading “Presentation of Financial and Other
Information”, are based on or derived from sources that the Company believes to be reliable
and accurate.
(x) Internal Controls and Compliance with ▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act. Except as set forth in
the General Disclosure Package, the Company, its subsidiaries and the Company’s Supervisory
Board and Management Board are all in compliance with the applicable provisions of the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 and upon the listing of the ADSs, the Company will be in
compliance with the rules of the New York Stock Exchange, including those of its corporate
governance standards applicable to foreign private issuers. The Company and each Material
Subsidiary maintain a system of internal controls for themselves and their subsidiaries
(collectively, “Internal Controls”) sufficient to provide reasonable assurances that (i)
transactions are executed in accordance with their respective management’s general or
specific authorizations, (ii) transactions are recorded as necessary to permit preparation
of financial statements in conformity with generally accepted accounting principles in the
United States and to maintain accountability for assets, (iii) access to assets is
permitted only in accordance with management’s general or specific authorization, (iv) the
recorded accountability for assets is compared with the existing assets at reasonable
intervals and appropriate action is taken with respect to any differences. Upon
consummation of the offering of the Offered Securities, the Company’s system of Internal
Controls will be overseen by the audit committee (the “Audit Committee”) of the Company’s
Supervisory Board. The Company has not publicly disclosed or reported to the Audit
Committee or the Supervisory Board, and within the next 135 days, the Company does not
reasonably expect to publicly disclose or report to the Audit Committee or the Supervisory
Board, a significant deficiency, material weakness, change in Internal Controls, or fraud
involving management or other employees who have a significant role in Internal Controls
(each, an “Internal Control Event”), any violation of, or failure to comply with, the
Securities Laws (as defined below). “Securities Laws” means, collectively, the
▇▇▇▇▇▇▇▇-▇▇▇▇▇ Act of 2002 (“▇▇▇▇▇▇▇▇-▇▇▇▇▇”), the Act, the Exchange Act, the Rules and
Regulations, the auditing principles, rules, standards and practices applicable to auditors
of “issuers” (as defined in ▇▇▇▇▇▇▇▇-▇▇▇▇▇) promulgated or approved by the Public Company
Accounting Oversight Board (“PCAOB Rules” and “PCAOB,” respectively), and the rules of the
New York Stock Exchange (“Exchange Rules”).
(y) Absence of Accounting Issues. A member of the Audit Committee has confirmed to
the Chief Executive Officer and Chief Financial Officer of the Company that, except as set
forth in the General Disclosure Package and the Final Prospectus, the Audit Committee is
not reviewing or investigating, and neither the Company’s independent auditors nor its
internal auditors have recommended that the Audit Committee review or investigate, (i)
adding to, deleting, changing the application of, or changing the Company’s disclosure with
respect to, any of the Company’s material accounting policies; (ii) any matter which could
result in a restatement of the Company’s financial statements and the schedules attached
thereto for the annual or interim periods for which financial statements are included in
the General Disclosure Package and the Final Prospectus; or (iii) any Internal Control
Event.
8
(z) Litigation. Except as disclosed in the General Disclosure Package and the Final
Prospectus, there are no pending actions, suits or proceedings (including any inquiries or
investigations by any court or governmental agency or body, domestic or foreign) against or
affecting the Company, any of its subsidiaries or any of their respective properties that,
if determined adversely to the Company or any of its subsidiaries, would individually or in
the aggregate have a Material Adverse Effect, or would materially and adversely affect the
ability of the Company to perform its obligations under this Agreement, the Deposit
Agreement, and the Pricing Agreement, or which are otherwise material in the context of the
sale of the Offered Securities; and no such actions, suits or proceedings (including any
inquiries or investigations by any court or governmental agency or body, domestic or
foreign) are, to the Company’s knowledge, threatened or contemplated.
(aa) Financial Statements. The financial statements included in each Registration
Statement, the General Disclosure Package and the Final Prospectus present fairly the
financial position of the Company, its consolidated subsidiaries, and Inotera Memories,
Inc. (“Inotera”) as of the dates shown and their results of operations and cash flows for
the periods shown, and, except as otherwise disclosed in the General Disclosure Package and
the Final Prospectus, such financial statements have been prepared in conformity with the
generally accepted accounting principles in the United States applied on a consistent basis
except that, in the case of Inotera, such financial statements have been prepared in
conformity with generally accepted accounting principles in the Republic of China.
(bb) No Material Adverse Change in Business. Except as disclosed in the General
Disclosure Package and the Final Prospectus, since September 30, 2005 (i) there has been no
change, nor any development or event involving a prospective change, in the condition
(financial or otherwise), results of operations, business, properties or prospects of the
Company and its subsidiaries, taken as a whole that is material and adverse to the Company
and its subsidiaries, (ii) except as disclosed in or contemplated by the General Disclosure
Package and the Final Prospectus, there has been no dividend or distribution of any kind
declared, paid or made by the Company on any class of its capital stock and (iii) except as
disclosed in or contemplated by the General Disclosure Package and the Final Prospectus,
there has been no material adverse change in the capital stock, short-term indebtedness,
long-term indebtedness, net current assets or net assets of the Company and its
subsidiaries.
(cc) Investment Company Act. The Company is not and, after giving effect to the
offering and sale of the Offered Securities and the application of the proceeds thereof as
described in the General Disclosure Package and the Final Prospectus, will not be an
“investment company” as defined in the Investment Company Act of 1940 (the “Investment
Company Act”).
(dd) Payments in Foreign Currency. Except as disclosed in the General Disclosure
Package and the Final Prospectus, under current laws and regulations of Germany and any
political subdivision thereof, all dividends and other distributions declared and payable
on the Underlying Shares may be paid by the Company to the holder thereof in Euros that may
be converted into foreign currency and freely transferred out of Germany and all such
payments made to holders thereof or therein who are non-residents of Germany will not be
subject to income, withholding or other taxes under laws and regulations of Germany or any
political subdivision or taxing authority thereof or therein and will otherwise be free and
clear of any other tax, duty, withholding or deduction in Germany or any political
subdivision or taxing authority thereof or therein and without the necessity of obtaining
any governmental authorization in Germany or any political subdivision or taxing authority
thereof or therein.
(ee) Compliance with Anti-Bribery and Anti-Money Laundering Laws. Neither the Company
nor any of its subsidiaries, nor any director or officer of the Company, nor, to the
knowledge of the Company, any agent, employee or affiliate of the Company or any of its
subsidiaries is aware of or has taken any action, directly or indirectly, that would result
in a violation by such persons of (i) the FCPA or any law, rule, or regulation promulgated
to implement the OECD Convention on Combating Bribery of Foreign Public Officials in
9
International Business Transactions, signed December 17, 1997, or any other law, rule
or regulation of similar purpose and scope, including, without limitation, making use of
the mails or any means or instrumentality of interstate commerce corruptly in furtherance
of an offer, payment, promise to pay or authorization of the payment of any money, or other
property, gift, promise to give, or authorization of the giving of anything of value to any
“foreign official” (as such term is defined in the FCPA) or any foreign political party or
official thereof or any candidate for foreign political office, in contravention of the
FCPA and the Company, its subsidiaries and, to the knowledge of the Company, its affiliates
have conducted their businesses in compliance with the FCPA and have instituted and
maintain policies and procedures designed to ensure, and which are reasonably expected to
continue to ensure, continued compliance therewith, and (ii) laws and regulations imposing
U.S. economic sanctions measures, including, but not limited to, the International
Emergency Economic Powers Act, the Trading with the Enemy Act, the United Nations
Participation Act, and the Syria Accountability and Lebanese Sovereignty Act, all as
amended, and any Executive Order, directive, or regulation pursuant to the authority of any
of the foregoing, including the regulations of the United States Treasury Department set
forth under 31 CFR, Subtitle B, Chapter V, as amended, or any orders or licenses issued
thereunder. “FCPA” means Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder. The operations of the Company and its subsidiaries are and have
been conducted at all times in compliance with applicable financial record-keeping and
reporting requirements of the Currency and Foreign Transactions Reporting Act of 1970, as
amended, the money laundering statutes of all jurisdictions, the rules and regulations
thereunder and any related or similar rules, regulations or guidelines, issued,
administered or enforced by any governmental agency and any Executive order, directive, or
regulation pursuant to the authority thereof, or any orders or licenses issued thereunder
(collectively, the “Money Laundering Laws”) and no action, suit or proceeding by or before
any court or governmental agency, authority or body or any arbitrator involving the Company
or any of its subsidiaries with respect to the Money Laundering Laws is pending or, to the
best knowledge of the Company, threatened.
(ff) Absence of Tax Issues. The Company and its subsidiaries have duly filed with the
appropriate taxing authorities all U.S. federal, state, local and non-U.S. tax returns,
reports and other information (“Tax Returns”) that are required to be filed or have
requested extensions thereof (except in any case in which the failure so to file would not
have a Material Adverse Effect); and, except as set forth in the General Disclosure Package
and the Final Prospectus, the Company and its subsidiaries have paid all taxes (including
any assessments, fines or penalties) required to be paid by them, except for any such
taxes, assessments, fines or penalties currently being contested in good faith or as would
not, individually or in the aggregate, have a Material Adverse Effect.
(gg) Insurance Coverage. The Company and its subsidiaries are insured by insurers
with appropriately rated claims paying abilities against such losses and risks and in such
amounts as are prudent and customary for the businesses in which they are engaged; all
policies of insurance and fidelity or surety bonds insuring the Company or any of its
subsidiaries or their respective businesses, assets, employees, officers and directors are
in full force and effect; the Company and its subsidiaries are in compliance with the terms
of such policies and instruments in all material respects; and, except as set forth in the
General Disclosure Package and Final Prospectus, there are no claims by the Company or any
of its subsidiaries under any such policy or instrument as to which any insurance company
is denying liability or defending under a reservation of rights clause; except as set forth
in the General Disclosure Package and the Final Prospectus, neither the Company nor any
such subsidiary has been refused any insurance coverage sought or applied for; neither the
Company nor any such subsidiary has any reason to believe that it will not be able to renew
its existing insurance coverage as and when such coverage expires or to obtain similar
coverage from similar insurers as may be necessary to continue its business at a cost that
would not have a Material Adverse Effect, except as set forth in or contemplated in the
General Disclosure Package and the Final Prospectus.
10
(hh) Deposit Agreement and ADSs. The Deposit Agreement has been duly authorized by
the Company and, when duly executed and delivered by the Company, and, assuming the
Depositary has satisfied those legal requirements that are applicable to it to the extent
necessary to make the Deposit Agreement enforceable against it, will under applicable U.S.
law and German law constitute a valid, binding and enforceable agreement of the Company,
except as such enforceability may be limited by applicable bankruptcy, insolvency,
moratorium and other similar laws affecting the rights of creditors generally and the
application of general equitable principles, and, assuming the accuracy and compliance with
the representations, warranties and covenants made by the Company and Infineon herein, upon
issuance by the Depositary of ADRs evidencing ADSs against the deposit of Underlying
Securities in respect thereof in accordance with the provisions of the Deposit Agreement,
such ADRs will be duly and validly issued and the persons in whose names the ADRs are
registered will be entitled to the rights specified therein and in the Deposit Agreement
free and clear of all liens, encumbrances or claims; and the Deposit Agreement and the ADRs
conform in all material respects to the descriptions thereof contained in the General
Disclosure Package and the Final Prospectus.
(ii) Absence of Manipulation. The Company has not taken, directly or indirectly, any
action designed to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any of the securities of the Company,
including the Offered Securities, except that no representation or warranty is made with
respect to or in connection with any action taken by or on behalf of any Underwriter or any
affiliate of any of them or any of their partners, members, directors, officers, employees
or agents.
(jj) Passive Foreign Investment Company. The Company was not a passive foreign
investment company (“PFIC”) or a “controlled foreign corporation” as such terms are defined
under section 1297 of the U.S. Internal Revenue Code of 1986, as amended, for its taxable
year ended September 30, 2005 and, based on the Company’s current and projected income,
assets and activities, the Company does not expect to be classified as a PFIC for any
subsequent taxable year.
(kk) Personal Jurisdiction. The Company has validly and irrevocably submitted to the
personal jurisdiction of any state or Federal court in the Borough of Manhattan, The City
of New York, New York, and has validly and irrevocably waived any objection to the venue of
a proceeding in any such court.
(ll) Absence of Immunity from Jurisdiction. The Company and its subsidiaries have no
immunity from jurisdiction of any court of (i) any jurisdiction in which they own or lease
property or assets, (ii) the United States or the State of New York or (iii) Germany or any
political subdivision thereof or from any legal process (whether through service of notice,
attachment prior to judgment, attachment in aid of execution, execution or otherwise) with
respect to themselves or their property and assets, or this Agreement, the Pricing
Agreement, the Deposit Agreement or actions to enforce judgments in respect thereof.
(mm) Absence of Stamp Duties and Transfer Taxes. No stamp or other issuance or
transfer taxes or duties or similar taxes are payable by or on behalf of the Underwriters,
the Company, or the purchasers of the Offered Securities to any taxing authority in
connection with (i) the sale and delivery of New Shares by the Company, in accordance with
the terms of this Agreement and the Pricing Agreement or (ii) the sale and delivery by the
Underwriters of New Shares in accordance with the terms of this Agreement to purchasers
thereof.
(nn) Contribution Agreements. The contribution agreement between the Company and
Infineon dated 25 April 2006 (the “Infineon Contribution Agreement”), and the contribution
agreement between the Company and Infineon Technologies Holding B.V., a corporation
incorporated in The Netherlands (“Holding”) dated 4 May 2006 (the “Holding Contribution
Agreement, and together with the Infineon Contribution Agreement, the “Contribution
Agreements”) are valid, legally binding and enforceable against the Company, except as
enforceability may be limited by applicable bankruptcy, insolvency, moratorium and other
11
similar laws affecting the rights of creditors generally and the application of
general equitable principles. The Company has duly performed all of the obligations under
each of the Contribution Agreements required to be performed by it as of the date on which
the representation in this Section 2(nn) is being made.
(oo) Foreign Assets Control. Neither the Company nor any of its subsidiaries nor any
director or officer, of the Company, nor, to the knowledge of the Company, any agent,
employee or affiliate of the Company or its subsidiaries is currently subject to any U.S.
sanctions administered by the Office of Foreign Assets Control of the U.S. Treasury
Department (“OFAC”); and the Company will not directly or indirectly use the proceeds of
the offering, or lend, contribute or otherwise make available such proceeds to any
subsidiary, joint venture partner or other person or entity, for the purpose of financing
the activities of any person currently subject to any U.S. sanctions administered by OFAC
or in a manner prohibited by any of such U.S. sanctions.
3. Representations and Warranties of Infineon. Infineon severally represents and warrants
to, and agrees with, the several Underwriters that:
(a) Good Standing. Infineon is a stock corporation (Aktiengesellschaft) duly
registered with the Commercial Register in Munich, Germany, and is validly existing under
the laws of Germany.
(b) Authorization of Agreement. This Agreement has been duly authorized, executed and
delivered by Infineon, and the Pricing Agreement, when executed and delivered by the
parties thereto, will have been duly authorized, executed and delivered by Infineon.
(c) Offered Securities. Infineon has and on each Closing Date hereinafter mentioned
will have valid and unencumbered title to the Existing Shares to be delivered by Infineon
on such Closing Date and full right, power and authority to enter into this Agreement and
to sell, assign, transfer and deliver the Existing Shares to be delivered by Infineon on
such Closing Date hereunder; and upon the delivery of and payment for the Offered
Securities on each Closing Date hereunder the Depositary through the Custodian will,
subject to the Deposit Agreement, acquire valid and unencumbered title to the Offered
Securities to be delivered by Infineon on such Closing Date. Upon the deposit of the
Existing Firm Underlying Shares with the Depositary or the Custodian pursuant to the
Deposit Agreement in accordance with the terms thereof against issuance of ADRs
representing the ADSs, all right, title and interest in such Existing Firm Underlying
Shares, subject to the Deposit Agreement, will be transferred to the Depositary or its
nominee, as the case may be, free and clear of all liens, encumbrances or claims, subject
to the Deposit Agreement; and upon delivery of the ADRs and payment therefor pursuant
hereto, good and valid title to such ADRs, free and clear of all liens, encumbrances,
equities or adverse claims, will pass to the several Underwriters.
(d) Compliance with Securities Act Requirements. (i) On its respective Effective
Date, on the date of this Agreement, on the date of the Pricing Agreement and on each
Closing Date, each of the Initial Registration Statement and the Additional Registration
Statement (if any) conformed and will conform in all respects to the requirements of the
Act and the Rules and Regulations and did not and will not include any untrue statement of
a material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading, and (ii) on the date of this
Agreement, and at the time of filing of the Final Prospectus pursuant to Rule 424(b) or (if
no such filing is required) at the Effective Date of the Additional Registration Statement
in which the Final Prospectus is included and on each Closing Date, the Final Prospectus
will conform in all respects to the requirements of the Act and the Rules and Regulations
and will not include any untrue statement of a material fact or omit to state any material
fact with respect to such information required to be stated therein or necessary to make
the statements therein not misleading. The preceding sentence does not apply to statements
in or omissions from any such document based upon written information furnished to the
Company by any Underwriter through the Representatives specifically for use
12
therein, it being understood and agreed that the only such information is that
described as such in Section 10(b) hereof.
(e) General Disclosure Package. As of the Applicable Time, neither the General
Disclosure Package nor any individual Limited Use Issuer Free Writing Prospectus, when
considered together with the General Disclosure Package, included any untrue statement of a
material fact or omitted to state any material fact, required to be stated therein or
necessary in order to make the statements therein, in the light of the circumstances under
which they were made, not misleading. The preceding sentence does not apply to statements
in or omissions from any Statutory Prospectus or any Issuer Free Writing Prospectus in
reliance upon and in conformity with written information furnished to the Company by any
Underwriter through the Representatives specifically for use therein, it being understood
and agreed that the only such information furnished by any Underwriter consists of the
information described as such in Section 10(b) hereof.
(f) Finder’s Fee. Except as disclosed in the General Disclosure Package and the Final
Prospectus, there are no contracts, agreements or understandings between Infineon and any
person that would give rise to a valid claim against Infineon or any Underwriter for a
brokerage commission, finder’s fee or other like payment in connection with this offering.
(g) Absence of Defaults and Conflicts Resulting from Transaction. The execution,
delivery and performance of this Agreement, and the sale of the Existing Shares will not
result in a breach or violation of any of the terms and provisions of, or constitute a
default under, any statute, any rule, regulation or, to Infineon’s knowledge, any order of
any German or U.S. governmental agency or body or any court having jurisdiction over
Infineon or any agreement or instrument to which Infineon is a party or by which Infineon
is bound, or the charter or by-laws of Infineon.
(h) Infineon Contribution Agreement. The Infineon Contribution Agreement is valid,
legally binding and enforceable against Infineon except as enforceability may be limited by
applicable bankruptcy, insolvency, moratorium and other similar laws affecting the rights
of creditors generally and the application of general equitable principles. Infineon has
duly performed all of its obligations under said contribution agreement required to be
performed by it as of the date on which the representation in this Section 3(h) is being
given. Except as disclosed in the General Disclosure Package and the Final Prospectus, all
assets owned by Infineon, including but not limited to the Intellectual Property, know how,
fixed assets, current assets, contracts and personnel necessary to conduct the business,
including research and development, of the Company and its Material Subsidiaries
substantially as such business, including research and development, was conducted (directly
or indirectly) by Infineon prior to the contribution, have validly been transferred to the
Company by way of the Infineon Contribution Agreement and due performance thereunder or, in
case of Intellectual Property owned by Infineon not transferred, the Company was granted a
license pursuant to such contribution agreement, conferring to it materially the same
position to use the Intellectual Property not transferred as Infineon enjoyed prior to the
contribution.
(i) Absence of Stamp Duties and Transfer Taxes. No stamp or other issuance or
transfer taxes or duties or similar taxes are payable in the United States or Germany by or
on behalf of the Underwriters, the Company, or the purchasers of the Offered Securities to
any taxing authority thereof or therein in connection with (i) the sale and delivery of
Existing Shares by Infineon, in accordance with the terms of this Agreement and the Pricing
Agreement or (ii) the sale and delivery by the Underwriters of Existing Shares in
accordance with the terms of this Agreement to purchasers thereof.
(j) Issuance of ADRs Representing the Existing Shares. Infineon has deposited, or
will deposit on or prior to the Firm Securities Closing Date, the Existing Firm Underlying
Shares with the Custodian against the issuance, by the Depositary, of the ADRs evidencing
the ADSs to be sold by it, acting through the Company as provided hereunder, to the
Underwriters and
13
has instructed or will instruct the Depositary to deliver such ADSs to the
Underwriters against payment by the Underwriters therefor at the First Closing Date.
(k) Absence of Manipulation. Infineon has not taken, directly or indirectly, any
action designed to, or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any of the securities of the Company,
including the Offered Securities, except that no representation or warranty is made with
respect to or in connection with any action taken by or on behalf of any Underwriter or any
affiliate of any of them or any of their partners, members, directors, officers, employees
or agents.
(l) Personal Jurisdiction. Infineon has validly and irrevocably submitted to the
personal jurisdiction of any state or Federal court in the Borough of Manhattan, The City
of New York, New York, and has validly and irrevocably waived any objection to the venue of
a proceeding in any such court.
(m) Absence of Immunity to Jurisdiction. Infineon and its subsidiaries have no
immunity from jurisdiction of any court of (i) Portugal, the People’s Republic of China,
the Republic of China (Taiwan), or Malaysia, (ii) the United States or the State of New
York, or (iii) Germany or any political subdivision thereof or from any legal process in
any of such jurisdictions (whether through service of notice, attachment prior to judgment,
attachment in aid of execution, execution or otherwise) with respect to themselves or their
property and assets, or this Agreement, the Pricing Agreement or actions to enforce
judgments in respect thereof.
(n) Absence of Further Requirements. All consents, approvals, authorizations and
orders necessary for the execution and delivery by Infineon of this Agreement, the Pricing
Agreement, for the sale and delivery to the Underwriters of the Existing Firm Underlying
Shares to be sold by Infineon hereunder, in the form of ADSs or otherwise, and for the
performance by Infineon of its obligations hereunder have been obtained and are in full
force and effect except such as may be required under German or U.S. state securities or
blue sky laws; and Infineon has full right, power and authority to enter into this
Agreement to sell and deliver to the Underwriters the Existing Firm Underlying Shares to be
sold hereunder, in the form of ADSs or otherwise.
(o) Holding Contribution Agreement. The Holding Contribution Agreement is valid,
legally binding and enforceable against Holding except as may be limited by applicable
bankruptcy, insolvency, moratorium and other similar laws affecting the rights of creditors
generally and the application of general equitable principles. Holding has duly performed
all of its obligations under said contribution agreement required to be performed by it as
of the date on which the representation in this Section 3(o) is being given. Except as
disclosed in the General Disclosure Package and the Final Prospectus, all assets owned by
Holding, including but not limited to the Intellectual Property, know how, fixed assets,
current assets, securities such as shares of stock or other equity interests, contracts and
personnel necessary to conduct the business, including research and development, of the
Company and its Material Subsidiaries substantially as such business, including research
and development, was conducted (directly or indirectly) by Holding prior to the
contribution, have validly been transferred to the Company by way of the Holding
Contribution Agreement and due performance thereunder or, in case of Intellectual Property
not transferred, the Company was granted a license pursuant to such contribution agreement,
conferring to it materially the same position to use the Intellectual Property owned by
Holding not transferred as Holding enjoyed prior to the contribution.
(p) Compliance with Anti-Bribery and Anti-Money Laundering Laws. Neither Infineon nor
any of its subsidiaries, nor any director or officer of Infineon, nor, to the knowledge of
Infineon, any agent, employee or affiliate of Infineon or any of its subsidiaries is aware
of or has taken any action, directly or indirectly, that would result in a violation by
such persons of (i) the FCPA or any law, rule, or regulation promulgated to implement the
OECD Convention on Combating Bribery of Foreign Public Officials in International Business
Transactions, signed December 17, 1997, or any other law, rule or regulation of similar
purpose and scope,
14
including, without limitation, making use of the mails or any means or instrumentality
of interstate commerce corruptly in furtherance of an offer, payment, promise to pay or
authorization of the payment of any money, or other property, gift, promise to give, or
authorization of the giving of anything of value to any “foreign official” (as such term is
defined in the FCPA) or any foreign political party or official thereof or any candidate
for foreign political office, in contravention of the FCPA and Infineon, its subsidiaries
and, to the knowledge of Infineon, its affiliates have conducted its businesses in
compliance with the FCPA and have instituted and maintain policies and procedures designed
to ensure, and which are reasonably expected to continue to ensure, continued compliance
therewith, and (ii) laws and regulations imposing U.S. economic sanctions measures,
including, but not limited to, the International Emergency Economic Powers Act, the Trading
with the Enemy Act, the United Nations Participation Act, and the Syria Accountability and
Lebanese Sovereignty Act, all as amended, and any Executive Order, directive, or regulation
pursuant to the authority of any of the foregoing, including the regulations of the United
States Treasury Department set forth under 31 CFR, Subtitle B, Chapter V, as amended, or
any orders or licenses issued thereunder. The operations of Infineon and its subsidiaries
are and have been conducted at all times in compliance with applicable financial
record-keeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all jurisdictions, the
rules and regulations thereunder and any related or similar rules, regulations or
guidelines, issued, administered or enforced by any governmental agency and any Executive
order, directive, or regulation pursuant to the authority thereof, or any orders or
licenses issued thereunder (collectively, the “Money Laundering Laws”) and no action, suit
or proceeding by or before any court or governmental agency, authority or body or any
arbitrator involving Infineon or any of its subsidiaries with respect to the Money
Laundering Laws is pending or, to the best knowledge of Infineon, threatened.
(q) Foreign Assets Control. Neither Infineon nor any of its subsidiaries nor any
director or officer of Infineon, nor to the knowledge of Infineon, any employee, agent or
affiliate of Infineon or any of its subsidiaries is currently subject to any U.S. sanctions
administered by the Office of Foreign Assets Control of the U.S. Treasury Department
(“OFAC”); and Infineon will not directly or indirectly use the proceeds of the offering, or
lend, contribute or otherwise make available such proceeds to any subsidiary, joint venture
partner or other person or entity, for the purpose of financing the activities of any
person currently subject to any U.S. sanctions administered by OFAC in a manner prohibited
by any of such U.S. sanctions.
(r) Inotera. Inotera has been duly incorporated and is existing and in good standing,
if applicable, under the laws of Taiwan, with the corporate power and authority to own its
properties and conduct its business as described in the General Disclosure Package and the
Final Prospectus, and is duly qualified to do business as a foreign corporation in good
standing (if applicable) in all other jurisdictions in which its ownership or lease of
property or the conduct of its business requires such qualification, except to the extent
that the failure to be so qualified would not reasonably be expected to have a Material
Adverse Effect; all of the issued and outstanding capital stock of Inotera has been duly
authorized and validly issued and is fully paid and nonassessable, and, except as disclosed
in the General Disclosure Package and the Final Prospectus, the capital stock of Inotera
that is owned by Infineon is owned free from liens, encumbrances and defects in trust for
the Company.
4. Purchase, Sale and Delivery of the Offered Securities.
(a) On the basis of the representations, warranties and agreements and subject to the terms and
conditions set forth herein, (i) the Company agrees to issue and sell to the several Underwriters
the New Shares at the Issue Price (as defined below) per share (plus, in accordance with subsection
(c) hereof, the Excess Proceeds Amount) and each of the Underwriters agrees, severally and not
jointly, to underwrite and purchase from the Company the respective number of New Shares set forth
opposite the names of the Underwriters in Schedule A to the Pricing Agreement under the column
captioned “Number of New Shares to Be Purchased by the Underwriters”, (ii) Infineon agrees to sell
to the several Underwriters and each Underwriter agrees to underwrite and purchase from Infineon,
severally
15
and not jointly, the respective number of Existing Firm Underlying Shares set forth opposite the
name of the Underwriters in Schedule A to the Pricing Agreement under the column captioned “Number
of Existing Firm Underlying Shares to be Purchased from Infineon”, each at the Offer Price (as
defined below) per share less the commissions pursuant to subsection (l) hereof, and (iii)
Infineon agrees to sell to the several Underwriters, at the option of the Underwriters, an
aggregate of not more than 9,450,000 Optional Underlying Shares as set forth in Schedule A to the
Pricing Agreement in the column captioned “Number of Optional Underlying Shares to be Purchased
from Infineon if Over-Allotment Exercised in Full”, each at the Offer Price (as defined below) per
share less the commissions pursuant to subsection (l) hereof, it being understood that if any
Optional Underlying Shares are sold, each Underwriter agrees to purchase that number of Optional
Underlying Shares which bears the same proportion to the total number of Optional Underlying Shares
as the proportion of the New Shares purchased by such Underwriter to the total number of New Shares
purchased by all Underwriters, subject at all times to the Representatives’ right to make any
necessary adjustments to prevent the sale or purchase of fractional shares.
(b) The offer price at which each Offered Security shall be offered for sale to investors (the
“Offer Price”) shall be in U.S. dollars and set forth in the Pricing Agreement (as defined below).
(c) On or about [ ], 2006 the parties hereto expect to enter into a pricing agreement
essentially in the form set out in Schedule D hereto (the “Pricing Agreement”), which shall set
forth, among other things, the Offer Price. The aggregate U.S. dollar amount to be paid by the
Underwriters to the Company pursuant to the Pricing Agreement in respect of the New Shares sold
shall be the number of New Shares sold multiplied by the Offer Price, less the total Issue Price
(as defined below) for the New Shares and less the commissions specified in subsection (l) in
respect of the New Shares sold as set forth in subsection (d) and less any expenses payable but not
yet paid by the Company to the Underwriters pursuant to (and evidenced as provided in) Section
6(A)(i) (the “Excess Proceeds Amount”). For purposes of determining the Excess Proceeds Amount,
the Issue Price shall be translated into U.S. dollars at the exchange rate used to convert any U.S.
dollar amounts to euro for the purpose of paying the Issue Price in euro.
(d) Subject to the conditions set out in Section 8 hereof, Citigroup Global Markets
Deutschland AG & Co. KGAA (“Citigroup Deutschland”) for the account of the Underwriters as provided
in subsection (e) below, agrees to subscribe for, on the date hereof, the New Shares at an issue
price of €2.00 per share each (the “Issue Price”), to pay to the Company an amount (the “Initial
Contribution”) equal to €0.50 (being 25% of the Issue Price) for each of the subscribed New
Shares in accordance with subsection (f) below for the purpose of effecting the registration of
the consummation of the capital increase in the Commercial Register and to cause on the date of
such registration payment to the Company of €1.50 (being 75% of the Issue Price) for each of the
subscribed New Shares (the “Remaining Contribution”).
(e) For the purpose of effecting the capital increase and the issuance of the New Shares, the
Underwriters authorize Citigroup Deutschland to subscribe for the New Shares to be underwritten by
the Underwriters at the Issue Price pursuant to the conditions below, and to make available to the
Company the full amount of the Issue Price for the New Shares as provided in subsection (d) above.
Citigroup Deutschland shall thereby act in its own name, and for the account of the Underwriters.
Citigroup Deutschland shall not be liable for the performance of the obligations of the other
Underwriters to pay the Excess Proceeds Amount in accordance with subsection (i) hereof.
(f) (i) For the purpose of registering the consummation of the capital increase representing
the New Shares in the Commercial Register, Citigroup Deutschland shall, in accordance with the
foregoing, and subject to the conditions stated herein, deliver to the Company a subscription
certificate in the form attached as Exhibit A hereto (Zeichnungsschein – the “Subscription
Certificate”) on the date hereof, duly signed in duplicate form pursuant to Section 185 of the
German Stock Corporation Act (Aktiengesetz – “AktG”) and representing [ ] New Shares, such
Subscription Certificate, in accordance with its terms, to expire on [ ], 2006, and Citigroup
Deutschland, for the account of the Underwriters as provided in subsection (e) above, shall effect
payment of the Initial Contribution in
16
respect of the New Shares subscribed for by Citigroup Deutschland with value as of [ ], as
initial payment pursuant to Section 36a (1) AktG, to a special account of the Company at Citigroup
Deutschland entitled Sonderkonto Kapitalerhöhung (the “Capital Increase Account”), such account to
be non-interest bearing and free of charges. Following the deposit in the Capital Increase Account
of an amount equal to the Initial Contribution by the Representatives, Citigroup Deutschland shall
cause delivery to the Company of a certificate in the form attached as Exhibit B hereto (the “Bank
Certificate”), confirming such deposit (Sections 203 (1), 188 (2), 36 (2), 36a (1) and 37 (1)
AktG).
(ii) Promptly upon receipt of the Subscription Certificate and the Bank Certificate
pursuant to subsection (f)(i) above, the Company shall file the application for the
registration of the consummation of the increase in capital with the Commercial Register.
The parties intend to file the application for the registration at the latest by 9.00 CET
on [ ], 2006, being the date on which the Offer Price is expected to be determined.
Copies of all documents filed with the Commercial Register in connection with the
registration of the consummation of the increase in capital shall be delivered to the
Representatives and Citigroup Deutschland promptly upon such filing.
(iii) Promptly upon the registration of the consummation of the increase in capital in
the Commercial Register the Company shall, by telefax with the original copy to follow
promptly by courier, furnish the Representatives and Citigroup Deutschland with a certified
excerpt of the registration notice of the Commercial Register and a certified excerpt from
the Commercial Register, evidencing the registration of the consummation of the increase in
capital.
(iv) If the registration in the Commercial Register of the consummation of the
increase in the Company’s capital in an amount of €[ ] has not been effected by 24.00
CET on [ ], 2006 (which date and time may by notice to the Company be postponed by the
Representatives acting jointly in their sole discretion on behalf of the Underwriters) and
in agreement with Citigroup Deutschland, the Subscription Certificate for the New Shares
shall expire and Citigroup Deutschland may obtain repayment of the Issue Price by canceling
the credit of the aggregate Initial Contribution already paid for the New Shares to the
Capital Increase Account. In such event, the Representatives, on behalf of the
Underwriters, Citigroup Deutschland, and the Company may agree that Citigroup Deutschland
submits a new Subscription Certificate for the New Shares (to expire in accordance with its
terms on a date to be mutually determined by the Representatives – acting on behalf of the
Underwriters – Citigroup Deutschland and the Company and Infineon) and effect a new credit
of the aggregate Initial Contribution for the New Shares to the Capital Increase Account.
If the Representatives, on behalf on the Underwriters, Citigroup Deutschland, the Company
and Infineon have not agreed on the submission of a new Subscription Certificate for the
New Shares on or prior to [ ], 2006, all obligations of the Underwriters to subscribe for
and underwrite the New Shares and to purchase the Existing Firm Underlying Shares from the
Infineon as well as all obligations of the Company to issue and sell the New Shares and of
the Infineon to sell the Existing Firm Underlying Shares to the Underwriters shall
terminate. In this event the reimbursement obligation of the Company with respect to
costs, charges and expenses incurred pursuant to the terms of Section 6(A)(i) and the
provisions set out in Section 10 of this Agreement shall remain in full force and effect.
(g) On the date of registration of the consummation of the increase in capital in the
Commercial Register and for value on such date, Citigroup Deutschland, for the account of the
Underwriters as provided in subsection (e) above shall cause payment of the Remaining Contribution
for the New Shares to be made to the Company against delivery of the Global Share Certificate(s)
pursuant to subsection (h) to the Capital Increase Account.
(h) Promptly on the day on which the consummation of the increase in capital relating to the
New Shares is registered in the Commercial Register and for value on such date, the Company shall
deliver to Citigroup Deutschland one or more global share certificate(s) which shall bear a blank
17
endorsement in the form attached as Exhibit C hereto (each a “Global Share Certificate”)
representing the New Shares, against payment of the Remaining Contribution by the Representatives
pursuant to subsection (g). Citigroup Deutschland on behalf of the Representatives shall deliver
the Global Share Certificate(s) to the Custodian on or prior to the First Closing Date (as defined
below), to enable delivery by the Representatives of the Firm ADSs to the other Underwriters or to
investors, as the case may be, by way of book-entry.
(i) Subject to the conditions stated herein, the Representatives shall cause payment for the
New Shares to the Company, on behalf of the several Underwriters in satisfaction of their
obligations to underwrite the New Shares to be issued by the Company hereunder, of the Excess
Proceeds Amount. All such payment shall be made on [ ], 2006, or at such other time not later
than seven full business days thereafter as the Representatives and the Company determine, such
time being referred to herein as the “First Closing Date”, in Federal (same day) funds, by official
bank check or checks or wire transfer to the Capital Increase Account maintained by the Company at
[ ] in U.S. dollars. In the absence of instructions by the Company to the contrary, the
Representatives shall promptly thereafter transfer the complete balance of the Capital Increase
Account to the accounts of the Company at [ ], for value on the First Closing Date.
(j) Certificates in negotiable form for the Existing Firm Underlying Shares to be sold by
Infineon hereunder have been placed in custody, for delivery under this Agreement (unless this
Agreement is terminated in accordance with Section 9, in which case the provisions contained
therein shall apply). Infineon agrees that the shares represented by the certificates held in
custody for Infineon by the Custodian are subject to the interests of the Underwriters hereunder.
The Custodian will credit the Existing Firm Underlying Shares to the Depositary, which will deliver
ADSs in respect thereof to the Representatives for the accounts of the Underwriters against payment
of the purchase price, which will be the sum total of the Offer Price per share multiplied by the
number of Existing Firm Underlying Shares purchased less the commissions deducted pursuant to
subsection (l) hereof, in Federal (same day) funds, by official bank checks or wire transfers to
accounts at a bank acceptable to the Representatives drawn to the order of Infineon at the First
Closing Date. The certificates for the Existing Firm Underlying Shares so to be delivered will be
in definitive form, and shall be delivered to the Custodian on or prior to the First Closing Date,
to enable delivery by the Representatives of the ADSs in respect thereof to the other Underwriters
or to investors, as the case may be, by way of book-entry.
(k) Upon written notice from the Representatives given to the Company and Infineon from time
to time not more than 30 days subsequent to the date of the Final Prospectus, the Underwriters may
purchase all or less than all of the Optional Securities at the Offer Price per share. Infineon
agrees to sell to the Underwriters the number of shares of Optional Securities specified in such
notice and the Underwriters agree, severally and not jointly, to purchase such Optional Securities.
Such Optional Securities shall be purchased for the account of each Underwriter in the same
proportion as the number of shares of Firm Securities set forth opposite such Underwriter’s name
bears to the total number of shares of Firm Securities (subject to adjustment by the
Representatives to eliminate fractions) and may be purchased by the Underwriters only for the
purpose of covering over-allotments made in connection with the sale of the Firm Securities. No
Optional Securities shall be sold or delivered unless the Firm Securities previously have been, or
simultaneously are, sold and delivered. The right to purchase the Optional Securities or any
portion thereof may be exercised from time to time and to the extent not previously exercised may
be surrendered and terminated at any time upon notice by the Representatives to the Company.
The time for the delivery of and payment for the Optional Securities, being herein referred to
as an “Optional Closing Date”, which may be the First Closing Date (the First Closing Date and each
Optional Closing Date, if any, being sometimes referred to as a “Closing Date”), shall be
determined by the Representatives but shall be not later than five full business days after written
notice of election to purchase Optional Securities is given. Infineon will deliver the Optional
Securities being purchased on each Optional Closing Date to or as instructed by the Representatives
for the accounts of the several Underwriters in a form reasonably acceptable to the Representatives
against payment of the purchase price, which will be the sum total of the Offer Price per share
multiplied by the number of Optional Securities Purchased less the commissions deducted pursuant to
subsection (l) hereof, in Federal (same
18
day) funds by official bank check or checks or wire transfer to an account at a bank
acceptable to the Representatives drawn to the order of [ ], at the [above] office of [ ] at the
Optional Closing Date. The Optional Securities being purchased on each Optional Closing Date will
be in definitive form and will be made available for checking and packaging at the office of [
]at a reasonable time in advance of each Optional Closing Date.
(l) As compensation for the Underwriters’ commitments, the Company and Infineon, severally and
not jointly, shall pay to the Representatives for the Underwriters’ proportionate accounts the sum
of l% of the Offer Price per share times the total number of Offered Securities purchased by
the Underwriters from the Company and Infineon, as applicable, on each Closing Date. Such payment
(i) with respect to the New Shares will be made on the First Closing Date by deduction of the
commission payable in respect of the New Shares from the Offer Price as provided for in Section
4(c) hereof, (ii) with respect to the Existing Firm Underlying Shares will be made on the First
Closing Date by deduction of the commission payable in respect of the Existing Firm Underlying
Shares from the Offer Price as provided for in Section 4(k) hereof, and (iii) with respect to
Optional Securities will be made on the Optional Closing Date by deduction of the commission
payable in respect of the Optional Securities from the Offer Price as provided for in Section 4(l)
hereof.
5. Offering by Underwriters. It is understood that the several Underwriters propose to offer
the Offered Securities for sale to the public as set forth in the Final Prospectus.
6. Certain Agreements. (A) The Company agrees with the several Underwriters and Infineon
that:
(a) Additional filings. Unless filed pursuant to Rule 462(c) as part of the
Additional Registration Statement in accordance with the next sentence, the Company will
file the Final Prospectus, in a form approved by the Representatives, with the Commission
pursuant to and in accordance with subparagraph (1) (or, if applicable and if consented to
by the Representatives, subparagraph (4)) of Rule 424(b) not later than the earlier of (i)
the second business day following the execution and delivery of this Agreement or (ii) the
fifteenth business day after the Effective Date of the Initial Registration Statement. The
Company will advise the Representatives promptly of any such filing pursuant to Rule 424(b)
and provide satisfactory evidence to the Representatives of such timely filing. If an
Additional Registration Statement is necessary to register a portion of the Offered
Securities under the Act but the Effective Time thereof has not occurred as of the
execution and delivery of this Agreement, the Company will file the additional registration
statement or, if filed, will file a post-effective amendment thereto with the Commission
pursuant to and in accordance with Rule 462(b) on or prior to 10:00 P.M., New York time, on
the date of this Agreement or, if earlier, on or prior to the time the Final Prospectus is
finalized and distributed to any Underwriter, or will make such filing at such later date
as shall have been consented to by the Representatives.
(b) Filing of Amendments; Response to Commission Requests. The Company will promptly
advise the Representatives of any proposal to amend or supplement at any time the Initial
Registration Statement, any Additional Registration Statement, the ADS Registration
Statement, or any Statutory Prospectus and will not effect such amendment or
supplementation without the Representatives’ consent which will not be unreasonably
withheld or delayed; and the Company will also advise the Representatives promptly of (i)
the effectiveness of any Additional Registration Statement (if its Effective Time is
subsequent to the execution and delivery of this Agreement) and the ADS Registration
Statement, (ii) any amendment or supplementation of a Registration Statement or any
Statutory Prospectus, (iii) any request by the Commission or its staff for any amendment to
any Registration Statement, the ADS Registration Statement, for any supplement to any
Statutory Prospectus or for any additional information, (iv) the institution by the
Commission of any stop order proceedings in respect of a Registration Statement, the ADS
Registration Statement, or the threatening of any proceeding for that purpose, and (v) the
receipt by the Company of any notification with respect to the suspension of the
qualification of the Offered Securities in any jurisdiction or the institution or
threatening of any proceedings for such purpose. The
19
Company will use its best efforts to prevent the issuance of any such stop order or
the suspension of any such qualification and, if issued, to obtain as soon as possible the
withdrawal thereof.
(c) Duty to Amend or Supplement the General Disclosure Package. If, at any time prior
to the filing of the Final Prospectus pursuant to Rule 424(b), any event occurs as a result
of which the General Disclosure Package would include any untrue statement of a material
fact or omit to state any material fact necessary to make the statements therein in the
light of the circumstances under which they were made at such time not misleading, the
Company will (i) notify promptly the Representatives so that any use of the General
Disclosure Package may cease until it is amended or supplemented; (ii) amend or supplement
the General Disclosure Package to correct such statement or omission; and (iii) supply any
amendment or supplement to you in such quantities as you may reasonably request.
(d) Duty to Amend or Supplement the Final Prospectus. If, at any time, when a
prospectus relating to the Offered Securities is (or but for the exemption in Rule 172
would be) required to be delivered under the Act by any Underwriter or dealer, any event
occurs as a result of which the Final Prospectus as then amended or supplemented would
include an untrue statement of a material fact or omit to state any material fact necessary
to make the statements therein, in the light of the circumstances under which they were
made, not misleading, or if it is necessary at any time to amend the Registration Statement
or supplement the Final Prospectus to comply with the Act, the Company will promptly notify
the Representatives of such event and will promptly prepare and file with the Commission
and furnish, at its own expense, to the Underwriters, upon request of the Representatives,
an amendment or supplement which will correct such statement or omission or an amendment
which will effect such compliance. Neither the Representatives’ consent to, nor the
Underwriters’ delivery of, any such amendment or supplement shall constitute a waiver of
any of the conditions set forth in Section 8 hereof.
(e) Availability of Earnings Statement. As soon as practicable, but not later than
the Availability Date (as defined below), the Company will make generally available to its
securityholders an earnings statement covering a period of at least 12 months beginning
after the Effective Date of the Initial Registration Statement (or, if later, the Effective
Date of the Additional Registration Statement) which will satisfy the provisions of Section
11(a) of the Act and Rule 158 under the Act. For the purpose of the preceding sentence,
“Availability Date” means the 45th day after the end of the fourth fiscal quarter following
the fiscal quarter that includes such Effective Date, except that, if such fourth fiscal
quarter is the last quarter of the Company’s fiscal year, “Availability Date” means the
90th day after the end of such fourth fiscal quarter.
(f) Copies of Registration Statements and Prospectuses. The Company will furnish to
the Representatives copies of each Registration Statement (of which three will be signed
and will include all exhibits), each related Statutory Prospectus, and, so long as a
prospectus relating to the Offered Securities is (or but for the exemption in Rule 172
would be) required to be delivered under the Act, the Final Prospectus and all amendments
and supplements to such documents, in each case in such quantities as the Representatives
request. The Final Prospectus shall be so furnished on or prior to 3:00 P.M., New York
time, if practicable, on the business day following the execution and delivery of this
Agreement. All other documents shall be so furnished as soon as available. The Company
will pay the expenses of printing and distributing to the Underwriters all such documents.
(g) Qualification of Offered Securities. The Company will arrange for the
qualification of the Offered Securities for sale under the laws of such jurisdictions as
the Representatives reasonably request and will continue such qualifications in effect so
long as required for the distribution; provided that in no event shall the Company be
obligated to (i) qualify to do business in any jurisdiction where it is not now so
qualified, (ii) to take any action that would subject it to service of process in suits,
other than those arising out of the offering or sale of the Offered Securities, in any
jurisdiction where it is not now so subject, (iii) subject itself to
20
taxation in any such jurisdiction or (iv) qualify the Offer Securities for sale
pursuant to a public offering other than in the United States.
(h) Annual Report to Stockholders. During the period of five years hereafter, the
Company will furnish to the Representatives and, upon request, to each of the other
Underwriters, as soon as practicable after the end of each fiscal year, a copy of its
annual report to stockholders for such year; and the Company will furnish to the
Representatives (i) as soon as available, a copy of each report and any definitive proxy
statement of the Company filed with the Commission under the Exchange Act or mailed to
stockholders, and (ii) from time to time, such other information concerning the Company as
the Representatives may reasonably request. However, so long as the Company is subject to
the reporting requirements of either Section 13 or Section 15(d) of the Exchange Act and is
timely filing reports with the Commission on its Electronic Data Gathering, Analysis and
Retrieval system (“▇▇▇▇▇”), it is not required to furnish such reports or statements to the
Underwriters.
(i) Fees and Expenses. The Company will pay all expenses incident to the performance
of its obligations under this Agreement and the Pricing Agreement, including but not
limited to (A) any filing fees and other expenses incurred in connection with qualification
of the Offered Securities for sale under the state securities or “blue sky” laws of such
jurisdictions in the United States as the Representatives reasonably request (including
those reasonable fees and disbursements of counsel to the Underwriters incurred in
connection with such qualifications) and the preparation and printing of memoranda relating
thereto, (B) costs and expenses related to the review by the National Association of
Securities Dealers, Inc. of the Offered Securities (including filing fees and the
reasonable fees and expenses of counsel for the Underwriters relating to such review), (C)
the Company’s costs and expenses relating to investor presentations or any “road show” in
connection with the offering and sale of the Offered Securities including, without
limitation, any travel expenses of the Company’s officers and employees and any other
expenses of the Company including the chartering of airplanes, (D) fees and expenses
incident to listing the Offered Securities on the New York Stock Exchange, (E) fees and
expenses in connection with the registration of the Offered Securities under the Exchange
Act, (F) and expenses incurred in distributing preliminary prospectuses and the Final
Prospectus (including any amendments and supplements thereto) to the Underwriters and (G)
for expenses incurred for preparing, printing and distributing any Issuer Free Writing
Prospectuses to investors or prospective investors. In addition to the foregoing, the
Company will pay the Representatives of behalf of the Underwriters on the First Closing
Date reasonable out-of-pocket expenses incurred by the Underwriters (up to an aggregate
amount of $750,000, exclusive of Value Added Tax or similar taxes, if such tax or taxes are
applicable). In addition, the Company will also pay the fees and expenses of the Qualified
Independent Underwriter.
(j) Use of Proceeds. The Company will use the net proceeds received in connection
with this offering in the manner described in the “Use of Proceeds” section of the General
Disclosure Package and the Final Prospectus and, except as disclosed in the General
Disclosure Package and the Final Prospectus, the Company does not intend to use any of the
proceeds from the sale of the Offered Securities hereunder to repay any outstanding debt
owed to any affiliate of any Underwriter.
(k) Absence of Manipulation. The Company will not take, directly or indirectly, any
action designed to or that might reasonably be expected to, cause or result in
stabilization or manipulation of the price of any securities of the Company, including the
Offered Securities, except that no representation, warranty or agreement is made with
respect to or in connection with any action taken by or on behalf of any Underwriter or any
affiliate of any of them or any of their partners, members, directors, officers, employees
or agents to facilitate the sale or resale of the Offered Securities.
(l) Stamp and Other Taxes. The Company will indemnify and hold harmless the
Underwriters against any documentary, stamp or similar issue tax, including any interest
and penalties, on the creation, issue and sale of the Offered Securities and on the
execution and
21
delivery of this Agreement. All payments to be made by the Company hereunder shall be
made without withholding or deduction for or on account of any present or future taxes,
duties or governmental charges whatsoever unless the Company is compelled by law to deduct
or withhold such taxes, duties or charges. In that event, the Company shall pay such
additional amounts as may be necessary in order that the net amounts received after such
withholding or deduction shall equal the amounts that would have been received if no
withholding or deduction had been made.
(m) Lock-Up Period. For the period specified below (the “Lock-Up Period”), the
Company will not without the prior written consent of the Representatives, directly or
indirectly, take any of the following actions with respect to its Securities, or any
securities convertible into or exchangeable or exercisable for any of its Securities
(“Lock-Up Securities”): (i) offer, sell, issue, contract to sell, pledge or otherwise
dispose of Lock-Up Securities, (ii) offer, sell, issue, contract to sell, contract to
purchase or grant any option, right or warrant to purchase Lock-Up Securities, (iii) enter
into any swap, hedge or any other agreement that transfers, in whole or in part, the
economic consequences of ownership of Lock-Up Securities, (iv) establish or increase a put
equivalent position or liquidate or decrease a call equivalent position in Lock-Up
Securities within the meaning of Section 16 of the Exchange Act or (v) file with the
Commission a registration statement under the Act relating to Lock-Up Securities, or
publicly disclose the intention to take any such action. The Lock-Up Period will commence
on the date hereof and continue for 190 days after the date of the commencement of the
public offering of the Offered Securities or such earlier date that the Representatives
consent to in writing. The above shall not apply to (i) the Offered Securities to be sold
hereunder; (ii) the issuance by the Company of shares or options pursuant to the plans
described in the Final Prospectus under “Management ¾ Employee Stock Option and
Employee Share Purchase Programs” or warrants or the conversion of a security outstanding
on the date hereof which the Underwriters have been advised in writing; (iii) securities
issued as consideration in connection with strategic acquisition, investment or alliance to
be entered into by the Company or any of its affiliates; and (iv) any securities issued in
the course of an increase in capital of the Company against contributions of assets (other
than current assets); provided, in the cases of clauses (iii) and (iv), that the transferee
agrees in writing to be bound by the terms of this subsection 6(A)(m).
(B) Certain Agreements of Infineon. Infineon agrees with the several Underwriters and the
Company that:
(a) Expenses of Infineon. Infineon will pay all of its own out-of-pocket expenses
incident to the performance of its obligations, as the case may be, under this Agreement.
(b) Stamp and Other Taxes. Infineon will pay any documentary, stamp or similar issue
tax, including any interest and penalties, on the sale of the Existing Firm Underlying
Shares and the Optional Underlying Shares and arising as a result of its execution and
delivery of this Agreement. All payments to be made by Infineon hereunder shall be made
without withholding or deduction for or on account of any present or future taxes, duties
or governmental charges whatsoever unless Infineon is compelled by law to deduct or
withhold such taxes, duties or charges. In that event, Infineon shall pay such additional
amounts as may be necessary in order that the net amounts received after such withholding
or deduction shall equal the amounts that would have been received if no withholding or
deduction had been made.
(c) Lock-Up Period. During the Lock-Up Period Infineon will not, without the prior
written consent of the Representatives, directly of indirectly, take any of the following
actions with respect to the Lock-Up Securities; (i) offer, sell, contract to sell or pledge
Lock-Up Securities or (ii) enter into any swap, hedge or any other agreement that
transfers, in whole or in part, the economic consequences of ownership of the Lock-Up
Securities. The Lock-Up Period will commence on the date hereof and will continue for 190
days after the date of the commencement of the public offering of the Offered Securities or
such earlier date that the Representatives consent to in writing. The above shall not
apply to (i) the Offered Securities
22
to be sold hereunder; (ii) transfers of Securities effected within the Infineon group
of companies; and (iii) transactions between Infineon and the Company in relation to the
funding of options granted to directors or employees of the Company or any of its
affiliates; in the case of each of clause (i), (ii), and (iii), the transferee agrees in
writing to be bound by the terms of this subsection 6(B)(c).
(d) Use of Proceeds. Except as disclosed in the General Disclosure Package and the
Final Prospectus, Infineon does not intend to use any of the proceeds from the sale of the
Offered Securities hereunder to repay any outstanding debt owed to any affiliate of any
Underwriter.
(e) Stabilization. Infineon will not take, directly or indirectly, any action
designed to or that would constitute or that might reasonably be expected to cause or
result in, stabilization or manipulation of the price of any securities of the Company to
facilitate the sale or resale of the Offered Securities.
(f) Deposit of the Firm Underlying Shares. Infineon shall, prior to the First Closing
Date, deposit the Existing Firm Underlying Shares underlying the ADSs to be sold hereunder
with the Depositary in accordance with the terms of the Deposit Agreement.
7. Free Writing Prospectuses. The Company represents and agrees that, unless it obtains the
prior consent of the Representatives, not to be unreasonably withheld, and each Underwriter
represents and agrees that, unless it obtains the prior consent of the Company and the
Representatives, it has not made and will not make any offer relating to the Offered Securities
that would constitute an Issuer Free Writing Prospectus, or that would otherwise constitute a “free
writing prospectus,” as defined in Rule 405, required to be filed with the Commission. Any such
free writing prospectus consented to by the Company and the Representatives is hereinafter referred
to as a “Permitted Free Writing Prospectus.” The Company represents that it has treated and agrees
that it will treat each Permitted Free Writing Prospectus as an “issuer free writing prospectus,”
as defined in Rule 433, and has complied and will comply with the requirements of Rules 164 and 433
applicable to any Permitted Free Writing Prospectus, including timely Commission filing where
required, legending and record keeping. The Company represents that it has satisfied and agrees
that it will satisfy the conditions in Rule 433 able to be satisfied on its part to avoid a
requirement to file with the Commission any electronic road show; provided, however, that no such
representation or agreement is made with respect to any action or failure to act by or on behalf of
any Underwriter.
8. Conditions of the Obligations of the Underwriters.
(a) Conditions regarding Subscription of New Shares. The obligation of Citigroup Deutschland
for the account of the Underwriters to deliver the Subscription Certificate and to pay the Initial
Contribution for the New Shares pursuant to Section 4 will be subject to the accuracy of the
representations and warranties of the Company and Infineon herein (as though made at the time of
the delivery to the Company of the Subscription Certificate by the Representatives (the
“Subscription Time”)), to the accuracy of the statements of the officers of the each of the Company
and Infineon made pursuant to the provisions hereof, to the performance by the Company and Infineon
of their obligations hereunder to be performed at or prior to Subscription Time and to the
following additional conditions precedent:
(i) Effectiveness of Registration Statement. The Initial Registration Statement, and
any Additional Registration Statement filed with the Commission prior to the time this
Agreement is executed, shall have become effective at or before the time this Agreement is
executed and no stop order suspending the effectiveness of a Registration Statement shall
be in effect, and no proceedings for such purpose shall have been instituted or, to the
knowledge of the Company or the Representatives, shall be contemplated by the Commission.
(ii) Opinion of German Counsel for the Company and Infineon. The Representatives
shall have received an opinion dated the Subscription Time, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ &
▇▇▇▇▇▇▇▇ LLP, German counsel for the Company and Infineon, in the form of Exhibit D hereto.
23
(iii) Opinion of In-House Counsel for the Company. The Representatives shall have
received an opinion dated the Subscription Time of the in-house legal department of the
Company in the form of Exhibit E hereto.
(iv) Opinion of In-House Counsel for Infineon. The Representatives shall have received
an opinion dated the Subscription Time of the in-house legal department of the Company in
the form of Exhibit F hereto.
(v) Opinion of German Counsel for the Underwriters. The Representatives shall have
received from Shearman & Sterling LLP, German counsel for the Underwriters, an opinion
dated the Subscription Time, with respect to such matters as the Representatives may
require, and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(vi) Officer’s Certificate of the Company. The Representatives shall have received a
certificate, dated the Subscription Time, of an executive officer of the Company and a
principal financial or accounting officer of the Company in which such officers shall state
that: the representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such Subscription Time; no stop
order suspending the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to their knowledge (based solely on a
telephonic confirmation by the representative of the Commission), are contemplated by the
Commission; and, subsequent to the dates of the most recent financial statements in the
Registration Statement, there has been no material adverse change, nor any development or
event involving a prospective material adverse change, in the condition (financial or
otherwise), results of operations, business, properties or prospects of the Company and its
subsidiaries taken as a whole except as set forth in the Registration Statement or as
described in such certificate.
(vii) Officer’s Certificate of Infineon. The Representatives shall have received a
certificate, dated the Subscription Time, of an executive officer of Infineon and a
principal financial or accounting officer of Infineon in which such officers shall state
that: the representations and warranties of Infineon in this Agreement are true and correct;
and Infineon has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Subscription Time.
(viii) Receipt of Corporate Resolutions. The Representatives shall have received
certified copies of the shareholders’ resolutions and the resolutions of the supervisory
board and the management board of the Company authorizing the issuance and sale of the
Offered Securities and of the resolutions of the supervisory board (if any) and the
management board of Infineon, authorizing the sale of the Offered Securities.
(b) Conditions precedent to the Pricing Agreement. The obligation of the several Underwriters
to execute the Pricing Agreement and pay the Excess Proceeds Amount will be subject to the accuracy
of the representations and warranties of the Company and Infineon herein (as though made at the
time of the execution and delivery by the parties thereto of the Pricing Agreement (the “Pricing
Time”)), to the accuracy of the statements of Company officers made pursuant to the provisions
hereof, to the performance by the Company and Infineon of their obligations hereunder to be
performed at or prior to the Pricing Time and to the following additional conditions precedent:
(i) Accountants’ Comfort Letter. The Representatives shall have received a letter,
dated the date hereof, of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftsprüfungsgesellschaft (“KPMG”) confirming that KPMG is a registered public
accounting firm and are independent public accountants within the meaning of the Securities
Laws and substantially in the form of Exhibit G hereto.
24
(ii) Opinion and Disclosure Letter of U.S. Counsel for Company. The Representatives
shall have received an opinion and a disclosure letter, each dated the Pricing Time, of
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company and Infineon, in the
respective forms of Exhibit H and I hereto.
(iii) Opinion and Disclosure Letter of U.S. Counsel for the Underwriters. The
Representatives shall have received from Shearman & Sterling LLP, U.S. counsel for the
Underwriters, such opinion and disclosure letter, each dated the Subscription Time, with
respect to such matters as the Representatives may require, and the Company shall have
furnished to such counsel such documents as they request for the purpose of enabling them
to issue such letter.
(iv) Officer’s Comfort Letter. The Representatives shall have received a letter, dated
the date hereof, of the Chief Financial Officer of the Company in form and substance
satisfactory to the Representatives.
(c) Conditions regarding First Closing Date and Optional Closing Date. The obligations of the
several Underwriters to purchase and pay for the Firm Securities on the First Closing Date and the
Optional Securities to be purchased on each Optional Closing Date will be subject to the accuracy
of the representations and warranties of the Company herein and Infineon (as though made on such
Closing Date), to the accuracy of the statements of Company officers made in the Officer’s
Certificate, to the performance by the Company and Infineon of their obligations hereunder and to
the following additional conditions precedent (as applicable):
(i) Accountants’ Comfort Letter. The Representatives shall have received a letter,
dated the First Closing Date, of KPMG confirming that is a registered public accounting
firm and independent public accountants within the meaning of the Securities Laws and
substantially in the form of Exhibit G hereto (except that, the specified date referred to
in Exhibit F hereto shall be a date no more than three days prior to each First Closing
Date).
(ii) Effectiveness of Registration Statement. If the Effective Time of the Additional
Registration Statement (if any) is not prior to the execution and delivery of this
Agreement, such Effective Time shall have occurred not later than 10:00 P.M., New York
time, on the date of this Agreement or, if earlier, the time the Final Prospectus is
finalized and distributed to any Underwriter, or shall have occurred at such later time as
shall have been consented to by the Representatives. The Final Prospectus shall have been
filed with the Commission in accordance with the Rules and Regulations and Section 5(a)
hereof. Prior to such Closing Date, no stop order suspending the effectiveness of a
Registration Statement shall have been issued and no proceedings for that purpose shall
have been instituted or, to the knowledge of the Company or the Representatives, shall be
contemplated by the Commission.
(iii) No Material Adverse Change. Subsequent to the execution and delivery of this
Agreement, there shall not have occurred (i) any change, or any development or event
involving a prospective change, in the condition (financial or otherwise), results of
operations, business, properties or prospects of the Company and its subsidiaries taken as
a whole which, in the judgment of the majority in interest of the Underwriters
including the Representatives is material and adverse and makes it impractical or
inadvisable to market the Offered Securities; (ii) any downgrading in the rating, if any,
of debt securities of the Company by any “nationally recognized statistical rating
organization” (as defined for purposes of Rule 436(g)), or any public announcement that any
such organization has under surveillance or review its rating of any debt securities of the
Company (other than an announcement with positive implications of a possible upgrading, and
no implication of a possible downgrading, of such rating); (iii) any change in either U.S.
or German or international financial, political or economic conditions or currency exchange
rates or exchange controls the effect of which is such as to make it, in the judgment of
the majority in interest of the Underwriters, including the Representatives, impractical to
market or enforce contracts for the sale of the Offered Securities, whether in the primary
market or in respect of dealings in the secondary market; (iv) any suspension or material
limitation of trading in securities generally on the New York Stock Exchange, or any
25
setting of minimum or maximum prices for trading on such exchange; (v) or any
suspension of trading of any securities of the Company on any exchange or in the
over-the-counter market; (vi) any banking moratorium declared by any U.S. federal or New
York or German authorities; (vii) any major disruption of settlements of securities,
payment, or clearance services in the United States or Germany or (viii) any attack on,
outbreak or escalation of hostilities or act of terrorism involving the United States or
Germany, any declaration of war by Congress or any other national or international calamity
or emergency if, in the judgment of the majority in interest of the Underwriters including
the Representatives, the effect of any such attack, outbreak, escalation, act, declaration,
calamity or emergency is such as to make it impractical or inadvisable to market the
Offered Securities or to enforce contracts for the sale of the Offered Securities.
(iv) Opinion and Disclosure Letter of U.S. Counsel for Company and Infineon. The
Representatives shall have received an opinion and a disclosure letter, each dated the
First Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the Company
and Infineon, in the respective forms of Exhibit J and Exhibit K hereto.
(v) Opinion of German Counsel for Company and Infineon. The Representatives shall
have received an opinion dated the First Closing Date, of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇
LLP, German counsel for the Company and Infineon, in the form of Exhibit L hereto.
(vi) Opinion of In-House Counsel for the Company. The Representatives shall have
received an opinion dated the First Closing Date of the in-house legal department of the
Company in the form of Exhibit M hereto.
(vii) Opinion of In-House Counsel for Infineon. The Representatives shall have
received an opinion dated the First Closing Date of the in-house legal department of
Infineon in the form of Exhibit N hereto.
(viii) Opinion and Disclosure Letter of U.S. Counsel for Underwriters. The
Representatives shall have received from Shearman & Sterling LLP, U.S. counsel for the
Underwriters, such disclosure letter, opinion or opinions, each dated the First Closing
Date, with respect to such matters as the Representatives may require, and the Company
shall have furnished to such counsel such documents as they request for the purpose of
enabling them to pass upon such matters.
(ix) Opinion of German Counsel for Underwriters. The Representatives shall have
received from Shearman & Sterling LLP, German counsel for the Underwriters, such opinion or
opinions, dated the First Closing Date, with respect to such matters as the Representatives
may require, and the Company shall have furnished to such counsel such documents as they
request for the purpose of enabling them to pass upon such matters.
(x) (1) Officer’s Certificate of the Company. The Representatives shall have received
a certificate, dated such Closing Date, of an executive officer of the Company and a
principal financial or accounting officer of the Company in which such officers shall state
that: the representations and warranties of the Company in this Agreement are true and
correct; the Company has complied with all agreements and satisfied all conditions on its
part to be performed or satisfied hereunder at or prior to such Closing Date; no stop order
suspending the effectiveness of any Registration Statement has been issued and no
proceedings for that purpose have been instituted or, to their knowledge (based solely on a
telephonic confirmation of a representative of the Commission), are contemplated by the
Commission; the Additional Registration Statement (if any) satisfying the requirements of
subparagraphs (1) and (3) of Rule 462(b) was timely filed pursuant to Rule 462(b),
including payment of the applicable filing fee in accordance with Rule 111(a) or (b) of
Regulation S-T of the Commission; and, subsequent to the dates of the most recent financial
statements in the General Disclosure Package and the Final Prospectus, there has been no
material adverse change, nor any development or event involving a prospective material
adverse change, in the
26
condition (financial or otherwise), results of operations, business, properties or
prospects of the Company and its subsidiaries taken as a whole except as set forth in the
General Disclosure Package and the Final Prospectus or as described in such certificate.
(2) Officer’s Certificate of Infineon. The Representatives shall have received a
certificate, dated such Closing Date, of an executive officer of Infineon and a principal
financial or accounting officer of Infineon in which such officers shall state that: the
representations and warranties of Infineon in this Agreement are true and correct; and
Infineon has complied with all agreements and satisfied all conditions on its part to be
performed or satisfied hereunder at or prior to such Closing Date.
(xi) Delivery of Global Share Certificate representing the New Shares. The Company
shall have delivered to the Representatives, (i) in accordance with, and at the time
provided for, in Section 4(h) a duly executed Global Share Certificate evidencing the New
Shares, and (ii) in accordance with, and at the time provided for, in Section 4(f)(iii) a
certified excerpt from the Commercial Register evidencing the Capital Increase represented
by the New Shares.
(xii) Delivery of the Existing Shares. Infineon shall have transferred the Existing
Shares to be sold in accordance with Section 4 above.
(xiii) Execution of Pricing Agreement. The Pricing Agreement shall have been duly
executed and delivered by the Company, Infineon and the Representatives on behalf of the
several Underwriters, there being no obligation to execute the Pricing Agreement.
(xiv) Officer’s Comfort Letter. The Representatives shall have received a letter,
dated the First Closing Date, of the Chief Financial Officer of the Company in form and
substance satisfactory to the Representatives.
(d) The Company will furnish the Representatives with such conformed copies of such opinions,
certificates, letters and documents as the Representatives reasonably request. The Representatives
may in their sole discretion waive on behalf of the Underwriters compliance with any conditions to
the obligations of the Underwriters hereunder, whether in respect of the Subscription Time, the
First Closing Date, an Optional Closing Date or otherwise.
9. Termination. The Representatives may at their option and in their sole discretion on behalf of
the several Underwriters terminate this Agreement (i) at any given time prior to the Pricing Time
by notice to the Company and Infineon if the Representatives determine that (x) any of the
conditions referred to in Section 8(a) shall not be satisfied at the Subscription Time; or (y) any
of the conditions referred to in Section 8(b) shall not be satisfied at the Pricing Time; or (z) a
material adverse change referred to in Section 8(c)(iii) has occurred at any time between the date
of this Agreement and the Pricing Time, or (ii) on the First Closing Date if any of the conditions
referred to in 8(c) has not been satisfied on the First Closing Date (each of the events set forth
in clauses (i) and (ii), a “Termination Event”), it being understood that in each (i) and (ii),
before the Representatives terminate this Agreement pursuant to Section 8(c)(iii) hereof, they
shall notify the Company and Infineon, if practicable in the sole discretion of the
Representatives, of their decision to terminate this Agreement pursuant to section 8(c)(iii). Upon
the occurrence of a Termination Event or in the event that the Pricing Agreement shall not have
been duly executed and delivered by all parties thereto in accordance with Section 8(c)(ix) the
following shall apply:
(a) Prior to Filing of Subscription Certificate. Should the Termination Event occur before
the Subscription Certificate for the New Shares has been filed with the Commercial Register, the
obligation of the Representatives to subscribe the New Shares and the obligation of the
Underwriters to acquire the Offered Securities may be cancelled and this Agreement may be
terminated by the Representatives at their option and in their sole discretion on behalf of the
several Underwriters and, in such circumstances, the Company shall return the Subscription
Certificate for the New Shares and the Bank Confirmation to the Representatives and release any
funds already credited to the Capital Increase Account for the benefit of Citigroup Deutschland.
27
(b) Subsequent to Filing. If a Termination Event occurs after all documents required for the
registration of the Capital Increase have been filed with the Commercial Register, the
Representatives may at their option and in their sole discretion, on behalf of the several
Underwriters, terminate this Agreement and request from the Company by written notification to the
Company to employ its best efforts to procure a withdrawal of the application for registration of
the Capital Increase with the Commercial Register. If the application is withdrawn successfully,
the obligation of the Representatives to subscribe to the New Shares and the obligation of the
Underwriters to acquire the Offered Securities shall terminate and the Company shall return the
Subscription Certificate for the New Shares and the Bank Confirmation to the Representatives and
release any funds already credited to the Capital Increase Account for the benefit of Citigroup
Deutschland.
(c) Subsequent to Registration of Capital Increase. If the Termination Event occurs after
registration of the Capital Increase or on a date on which the application for the registration of
the Capital Increase with the Commercial Register can no longer be withdrawn, or if despite a
request a withdrawal does not occur for other reasons, the following shall apply:
(i) the Representatives at their option and in their sole discretion, on behalf of the
several Underwriters, may terminate this Agreement and the Pricing Agreement, if any, on
behalf of the several Underwriters; provided, however, that the obligation of the
Underwriters hereunder to acquire the New Shares at a purchase price equal to the notional
par value of the New Shares shall remain in force and survive any such termination. The
Representatives may, however, release the other Underwriters of this obligation in their
sole discretion. Subject to the foregoing, in the event of any such termination, the
obligations of the Underwriters towards the Company and Infineon to acquire and offer
Offered Securities terminate. In such circumstances any Existing Shares that have already
been transferred shall be retransferred to Infineon.
(ii) The Representatives shall have the right to sell to Infineon, and Infineon shall
have the obligation to purchase from the Representatives all of the New Shares against
payment to the Representatives of the notional par value of such New Shares. Any such sale
by the Representatives to Infineon shall be consummated within a period of ten business
days following the termination notification in accordance with this Section 9.
(iii) If the sale of the New Shares to Infineon pursuant to subsection (ii) above is
not consummated within a period of ten business days following the termination notification
in accordance with this Section 9, the Underwriters shall also be entitled to sell the New
Shares to any other person or person as they deem best in their sole discretion and, in the
event of any such sale, shall forward to the Company any proceeds received by them from
such disposition less the amount credited to the Capital Increase Account and less the
underwriting commission pursuant to Section 4(l).
(d) Determination by Company or Infineon. If the Company or Infineon determines that any of
the conditions precedent described in Section 8 above is not or not any more fulfilled at any time
after execution of this Agreement and prior to the First Closing Date, or that a material adverse
change pursuant to Section 8(c)(iii) has occurred, it shall notify the Representatives of such
circumstances without undue delay.
(e) Survival of Provisions. Any termination of this Agreement shall not affect the
obligations of the Company and Infineon to indemnify the Underwriters or to contribute to their
losses pursuant to Section 10 and to pay costs and expenses pursuant to Section 6; provided,
however, that the Company shall not be obligated to pay costs and expenses pursuant to Section 6
if, notwithstanding the performance by the Company of its obligations under Sections 8(b)(i)-(iii),
such termination occurs due to a failure by the Representatives to execute and deliver the Pricing
Agreement on behalf of the several Underwriters in accordance with Section 8(c)(xii).
10. Indemnification and Contribution.
28
(a) Indemnification of Underwriters by the Company and Infineon. The Company and Infineon
will indemnify and hold harmless each Underwriter, its partners, members, directors, officers,
employees, agents, affiliates and each person, if any, who controls such Underwriter within the
meaning of Section 15 of the Act or Section 20 of the Exchange Act (each, an “Indemnified Party”),
against any and all losses, claims, damages or liabilities, joint or several, to which such
Indemnified Party may become subject, under the Act, the Exchange Act, other Federal or state
statutory law or regulation or otherwise, insofar as such losses, claims, damages or liabilities
(or actions in respect thereof) arise out of or are based upon any untrue statement or alleged
untrue statement of any material fact contained in any part of any Registration Statement at any
time, any Statutory Prospectus as of any time, the Final Prospectus or any Issuer Free Writing
Prospectus, or arise out of or are based upon the omission or alleged omission of a material fact
required to be stated therein or necessary to make the statements therein not misleading, and will
reimburse each Indemnified Party for any legal or other expenses reasonably incurred by such
Indemnified Party in connection with investigating or defending against any loss, claim, damage,
liability, action, litigation, investigation or proceeding whatsoever, whether threatened or
commenced, under the Act, the Exchange Act, other Federal or state statutory law or regulation or
otherwise, whether or not such Indemnified Party is party thereto, insofar as such losses, claims,
damages, liabilities or actions in respect thereof arise of or based upon any untrue statement or
alleged untrue statement or alleged untrue statement of any material fact contained in any part of
any Registration Statement at any time, any Statutory Prospectus as of any time, the Final
Prospectus or any Issuer Free Writing Prospectus, or arise out of or are based upon the omission or
alleged omission of a material fact required to be stated therein or necessary to make the
statements therein not misleading, and in connection with the enforcement of this provision, with
respect to any of the above, as such expenses are incurred; provided, however, that the Company and
Infineon will not be liable in any such case to the extent that any such loss, claim, damage or
liability arises out of or is based upon an untrue statement or alleged untrue statement in or
omission or alleged omission from any of such documents in reliance upon and in conformity with
written information furnished to the Company by any Underwriter through the Representatives
specifically for use therein, it being understood and agreed that the only such information
furnished by any Underwriter consists of the information described as such in subsection (b) below.
(b) Indemnification of the Company and Infineon by the Underwriters. Each Underwriter will
severally and not jointly indemnify and hold harmless the Company, Infineon, each of their
directors and each of its officers who signs a Registration Statement and each person, if any, who
controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act
(each, an “Underwriter Indemnified Party”), against any losses, claims, damages or liabilities to
which such Underwriter Indemnified Party may become subject, under the Act, the Exchange Act, other
Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon any untrue statement
or alleged untrue statement of any material fact contained in any part of any Registration
Statement at any time, any Statutory Prospectus as of any time, the Final Prospectus, or any Issuer
Free Writing Prospectus, or arise out of or are based upon the omission or the alleged omission of
a material fact required to be stated therein or necessary to make the statements therein not
misleading, in each case to the extent, but only to the extent, that such untrue statement or
alleged untrue statement or omission or alleged omission was made in reliance upon and in
conformity with written information furnished to the Company by such Underwriter through the
Representatives specifically for use therein, and will reimburse any legal or other expenses
reasonably incurred by such Underwriter Indemnified Party in connection with investigating or
defending against any such loss, claim, damage, liability, action, litigation, investigation or
proceeding whatsoever (whether or not such Underwriter Indemnified Party is a party thereto),
whether threatened or commenced, based upon any such untrue statement or omission, or any such
alleged untrue statement or omission as such expenses are incurred, it being understood and agreed
that the only such information furnished by any Underwriter consists of the following information
in the Final Prospectus furnished on behalf of each Underwriter: the discounts, concession and
reallowance figures appearing in the 8th paragraph under the caption “Underwriting”, the
information on stabilization contained in the 13th to 15th paragraphs under
the caption “Underwriting”, the information on discretionary sales contained in the 16th
paragraph under the caption “Underwriting”, and the information on allocations to on-line accounts
contained in the 30th paragraph under the caption “Underwriting”.
29
(c) Actions against Parties; Notification. Promptly after receipt by an Indemnified Party or
Underwriter Indemnified Party under this Section or Section 12 of notice of the commencement of any
action, such Indemnified Party or Underwriter Indemnified Party will, if a claim in respect thereof
is to be made against the indemnifying party under subsection (a) or (b) above or Section 12,
notify the indemnifying party of the commencement thereof; but the failure to notify the
indemnifying party shall not relieve it from any liability that it may have under subsection (a) or
(b) above or Section 12 except to the extent that it has been materially prejudiced (through the
forfeiture of substantive rights or defenses) by such failure; and provided further that the
failure to notify the indemnifying party shall not relieve it from any liability that it may have
to an Indemnified Party or Underwriter Indemnified Party otherwise than under subsection (a) or (b)
above or Section 12. In case any such action is brought against any Indemnified Party or
Underwriter Indemnified Party and it notifies the indemnifying party of the commencement thereof,
the indemnifying party will be entitled to participate therein and, to the extent that it may wish,
jointly with any other indemnifying party similarly notified, to assume the defense thereof, with
counsel satisfactory to such Indemnified Party or Underwriter Indemnified Party (who shall not,
except with the consent of the Indemnified Party or Underwriter Indemnified Party, be counsel to
the indemnifying party), and after notice from the indemnifying party to such Indemnified Party or
Underwriter Indemnified Party of its election so to assume the defense thereof, the indemnifying
party will not be liable to such Indemnified Party or Underwriter Indemnified Party under this
Section or Section 12 for any legal or other expenses subsequently incurred by such Indemnified
Party or Underwriter Indemnified Party in connection with the defense thereof other than reasonable
costs of investigation. No indemnifying party shall, without the prior written consent of the
Indemnified Party or the Underwriter Indemnified Party, effect any settlement of any pending or
threatened action in respect of which any Indemnified Party or Underwriter Indemnified Party is or
could have been a party and indemnity could have been sought hereunder by such Indemnified Party or
Underwriter Indemnified Party unless such settlement (i) includes an unconditional release of such
Indemnified Party or Underwriter Indemnified Party from all liability on any claims that are the
subject matter of such action and (ii) does not include a statement as to, or an admission of,
fault, culpability or a failure to act by or on behalf of an indemnified party.
(d) Contribution. If the indemnification provided for in this Section is unavailable or
insufficient to hold harmless an Indemnified Party or Underwriter Indemnified Party under
subsection (a) or (b) above, then each indemnifying party shall contribute to the amount paid or
payable by such Indemnified Party or Underwriter Indemnified Party as a result of the losses,
claims, damages or liabilities referred to in subsection (a) or (b) above (i) in such proportion as
is appropriate to reflect the relative benefits received by the Company and Infineon on the one
hand and the Underwriters on the other from the offering of the Offered Securities or (ii) if the
allocation provided by clause (i) above is not permitted by applicable law, in such proportion as
is appropriate to reflect not only the relative benefits referred to in clause (i) above but also
the relative fault of the Company and Infineon on the one hand and the Underwriters on the other in
connection with the statements or omissions which resulted in such losses, claims, damages or
liabilities as well as any other relevant equitable considerations. The relative benefits received
by the Company and Infineon on the one hand and the Underwriters on the other shall be deemed to be
in the same proportion as the total net proceeds from the offering (before deducting expenses)
received by the Company and Infineon bear to the total underwriting discounts and commissions
received by the Underwriters. The relative fault shall be determined by reference to, among other
things, whether the untrue or alleged untrue statement of a material fact or the omission or
alleged omission to state a material fact relates to information supplied by the Company, Infineon
or the Underwriters and the parties’ relative intent, knowledge, access to information and
opportunity to correct or prevent such untrue statement or omission. The amount paid by an
Indemnified Party or Underwriter Indemnified Party as a result of the losses, claims, damages or
liabilities referred to in the first sentence of this subsection (d) shall be deemed to include any
legal or other expenses reasonably incurred by such Indemnified Party or Underwriter Indemnified
Party in connection with investigating or defending any action or claim which is the subject of
this subsection (d). Notwithstanding the provisions of this subsection (d), no Underwriter shall
be required to contribute any amount in excess of the amount by which the total price at which the
Offered Securities underwritten by it and distributed to the public were offered to the public
exceeds the amount of any damages which such Underwriter has otherwise been required to pay by
reason of such untrue or alleged untrue statement or omission or alleged omission. No person
guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be
entitled to contribution from
30
any person who was not guilty of such fraudulent misrepresentation. The Underwriters’
obligations in this subsection (d) to contribute are several in proportion to their respective
underwriting obligations and not joint. The Company, Infineon and the Underwriters agree that it
would not be just and equitable if contribution pursuant to this Section 11(d) were determined by
pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by
any other method of allocation which does not take account of the equitable considerations referred
to in this Section 11(d).
(e) Control Persons. The obligations of the Company and Infineon under this Section or
Section 12 shall be in addition to any liability which the Company and Infineon may otherwise have
and shall extend, upon the same terms and conditions, to each person, if any, who controls any
Underwriter or the QIU (as hereinafter defined) within the meaning of the Act; and the obligations
of the Underwriters under this Section shall be in addition to any liability which the respective
Underwriters may otherwise have and shall extend, upon the same terms and conditions, to each
director of the Company and Infineon, to each officer of the Company and Infineon who has signed a
Registration Statement and to each person, if any, who controls the Company and Infineon within the
meaning of the Act.
(f) Claims against the Company and Infineon. In making a claim for indemnification or
contribution under this Section 10 against the Company or Infineon, the Indemnified Parties may
proceed against either (1) both the Company and Infineon jointly or (2) the Company only, but may
not proceed solely against Infineon. In the event that the Indemnified Parties are entitled to seek
indemnity or contribution hereunder against any loss, liability, claim, damage and expense to which
this paragraph applies then, as a precondition to any indemnified party obtaining indemnification
or contribution from Infineon, the Indemnified Parties shall first obtain a final judgment from a
trial court that such Indemnified Parties are entitled to indemnity or contribution under this
Agreement from the Company and Infineon with respect to such loss, liability, claim, damage or
expense (the “Final Judgment”) and shall seek to satisfy such Final Judgment in full from the
Company by making a written demand upon the Company for such satisfaction. Only in the event such
Final Judgment shall remain unsatisfied in whole or in part 45 days following the date of receipt
by the Company of such demand shall any Indemnified Party have the right to take action to satisfy
such Final Judgment by making demand directly on Infineon (but only if and to the extent the
Company has not already satisfied such Final Judgment, whether by settlement, release or
otherwise). The Indemnified Parties may exercise this right to first seek to obtain payment from
the Company and thereafter obtain payment from Infineon without regard to the pursuit by any party
of its rights to the appeal of such Final Judgment. The Indemnified Parties shall, however, be
relieved of their obligation to first obtain a Final Judgment, to seek to obtain payment from the
Company with respect to such Final Judgment or, having sought such payment, to wait such 45 days
after failure by the Company to immediately satisfy any such Final Judgment if (A) the Company
files a petition for relief under the United Sates Bankruptcy Code (the “Bankruptcy Code”) or the
bankruptcy laws of Germany, (B) an order for relief is entered against the Company in an
involuntary case under the Bankruptcy Code or the bankruptcy laws of Germany , (C) the Company
makes an assignment for the benefit of its creditors, or (D) any court orders or approves the
appointment of a receiver or custodian for the Company or a substantial portion of its assets.
11. Default of Underwriters. If any Underwriter or Underwriters default in their obligations
to purchase Offered Securities hereunder on either the First or any Optional Closing Date and the
aggregate number of shares of Offered Securities that such defaulting Underwriter or Underwriters
agreed but failed to purchase does not exceed 10% of the total number of shares of Offered
Securities that the Underwriters are obligated to purchase on such Closing Date, the
Representatives may make arrangements satisfactory to the Company and Infineon for the purchase of
such Offered Securities by other persons, including any of the Underwriters, but if no such
arrangements are made by such Closing Date, the non-defaulting Underwriters shall be obligated
severally, in proportion to their respective commitments hereunder, to purchase the Offered
Securities that such defaulting Underwriters agreed but failed to purchase on such Closing Date.
If any Underwriter or Underwriters so default and the aggregate number of shares of Offered
Securities with respect to which such default or defaults occur exceeds 10% of the total number of
shares of Offered Securities that the Underwriters are obligated to purchase on such Closing Date
and arrangements satisfactory to Representatives, the Company, and Infineon for the purchase of
such Offered Securities by other persons are not made
31
within 36 hours after such default, then the non-defaulting Representatives may, in their
discretion, terminate each Underwriter’s obligation to purchase the Offered Securities (provided
that if such default occurs with respect to Optional Securities after the First Closing Date, this
Agreement will not terminate as to the Firm Securities any Optional Securities purchased prior to
such termination). In the event that a termination pursuant to this Section occurs after the New
Shares have been subscribed for by the Representatives in accordance with Section 4(f), the
procedures described in Section 9(a) to (c) shall apply by analogy. As used in this Agreement, the
term “Underwriter” includes any person substituted for an Underwriter under this Section. Nothing
herein will relieve a defaulting Underwriter from liability for its default.
12. Qualified Independent Underwriter. The Company hereby confirms that at its request Credit
Suisse has without compensation acted as “qualified independent underwriter” (in such capacity, the
“QIU”) within the meaning of Rule 2720 of the Conduct Rules of the National Association of
Securities Dealers, Inc. in connection with the offering of the Offered Securities. The Company
will indemnify and hold harmless the QIU, its directors, officers, employees and agents and each
person, if any, who controls such Underwriter within the meaning of Section 15 of the Securities
Act or Section 20 of the Exchange Act against any and all losses, claims, damages or liabilities,
joint or several, to which the QIU may become subject, under the Act, the Exchange Act, other
Federal or state statutory law or regulation or otherwise, insofar as such losses, claims, damages
or liabilities (or actions in respect thereof) arise out of or are based upon the QIU’s acting (or
alleged failing to act) as such “qualified independent underwriter” and will reimburse the QIU for
any legal or other expenses reasonably incurred by the QIU in connection with investigating or
defending any such loss, claim, damage, liability or action as such expenses are incurred.
13. Survival of Certain Representations and Obligations. The respective indemnities,
agreements, representations, warranties and other statements of the Company, Infineon and their
respective officers and of the several Underwriters set forth in or made pursuant to this Agreement
will remain in full force and effect, regardless of any investigation, or statement as to the
results thereof, made by or on behalf of any Underwriter, the Company, Infineon or any of their
respective representatives, officers or directors or any controlling person, and will survive
delivery of and payment for the Offered Securities. If the purchase of the Offered Securities by
the Underwriters is not consummated for any reason other than solely because of the termination of
this Agreement pursuant to Section 11 hereof or, notwithstanding the performance by the Company of
its obligations under Sections 8(b)(i)-(iii), due to a failure by the Representatives to execute
and deliver the Pricing Agreement on behalf of the several Underwriters in accordance with Section
4(c), the Company and the Infineon will reimburse the Underwriters for all out-of-pocket expenses
in accordance with Section 6(A)(i) and the respective obligations of the Company, Infineon and the
Underwriters pursuant to Section 10 hereof and the obligations of the Company pursuant to Section
12 hereof shall remain in effect. In addition, if any Offered Securities have been purchased
hereunder, the representations and warranties in Section 2 and all obligations under Section 6
shall also remain in effect.
14. Notices. All communications hereunder will be in writing and, if sent to the
Underwriters, will be mailed, delivered or telegraphed and confirmed to the Representatives, c/o
Credit Suisse Securities (USA) LLC, Eleven Madison Avenue, New York, N.Y. 10010-3629, Attention:
LCD-IBD, or, if sent to the Company, will be mailed, delivered or telegraphed and confirmed to
Qimonda ▇▇, ▇▇▇▇▇▇-▇▇▇▇▇▇▇▇▇-▇▇▇▇ ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, Attention: [ ] , or if sent to Infineon,
will be mailed, delivered or telegraphed and confirmed to Infineon Technologies AG, Am Campeon 1 –
12, 85579 Neubiberg/Munich, Attention: [ ]; provided, however, that any notice to an Underwriter
pursuant to Section 10 will be mailed, delivered or telegraphed and confirmed to such Underwriter.
15. Successors. This Agreement will inure to the benefit of and be binding upon the parties
hereto and their respective successors and the officers and directors and controlling persons
referred to in Section 10, and no other person will have any right or obligation hereunder.
16. Representation of Underwriters. The Representatives will act for the several
Underwriters in connection with this financing, and any action under this Agreement taken by the
Representatives will be binding upon all the Underwriters.
32
17. Counterparts. This Agreement may be executed in any number of counterparts, each of
which shall be deemed to be an original, but all such counterparts shall together constitute one
and the same Agreement.
18. Absence of Fiduciary Relationship. The Company and Infineon acknowledge and agree that:
(a) No Other Relationship. The Representatives have been retained solely to act as
underwriters in connection with the sale of Offered Securities and that no fiduciary, advisory or
agency relationship between the Company or Infineon on the one hand, and the Representatives on the
other hand has been created in respect of any of the transactions contemplated by this Agreement or
the Final Prospectus, irrespective of whether the Representatives have advised or is advising the
Company or Infineon on other matters;
(b) Arms’ Length Negotiations. The price of the Offered Securities set forth in the Pricing
Agreement under the terms of this Agreement was established by the Company and Infineon following
discussions and arms-length negotiations with the Representatives and the Company and Infineon are
capable of evaluating and understanding and understand and accept the terms, risks and conditions
of the transactions contemplated by this Agreement;
(c) Absence of Obligation to Disclose. The Company and Infineon have been advised that the
Representatives and their affiliates are engaged in a broad range of transactions which may involve
interests that differ from those of the Company or Infineon and that the Representatives have no
obligation to disclose such interests and transactions to the Company or Infineon by virtue of any
fiduciary, advisory or agency relationship; and
(d) Waiver. The Company and Infineon waive, to the fullest extent permitted by law, any
claims they may have against the Representatives for breach of fiduciary duty or alleged breach of
fiduciary duty and agrees that the Representatives shall have no liability (whether direct or
indirect) to the Company or Infineon in respect of such a fiduciary duty claim or to any person
asserting a fiduciary duty claim on behalf of or in right of the Company, including stockholders,
employees or creditors of the Company.
19. Applicable Law. This Agreement shall be governed by, and construed in accordance with,
the laws of the State of New York.
The Company and Infineon hereby submits to the non-exclusive jurisdiction of the Federal and
state courts in the Borough of Manhattan in The City of New York in any suit or proceeding arising
out of or relating to this Agreement or the transactions contemplated hereby. The Company and
Infineon irrevocably and unconditionally waives any objection to the laying of venue of any suit or
proceeding arising out of or relating to this Agreement or the transactions contemplated hereby in
Federal and state courts in the Borough of Manhattan in The City of New York and irrevocably and
unconditionally waives and agrees not to plead or claim in any such court that any such suit or
proceeding in any such court has been brought in an inconvenient forum. The Company and Infineon
irrevocably appoint Qimonda North America Corp. and Infineon Technologies North America Corp.,
respectively, as their respective authorized agent upon which process may be served in any such
suit or proceeding, and agree that service of process upon such agent, and written notice of said
service to the Company or Infineon, as appropriate, by the person serving the same to the
respective addresses of the Company or Infineon provided in Section 14, shall be deemed in every
respect effective service of process upon the Company or Infineon in any such suit or proceeding.
The Company and Infineon further agree to take any and all action as may be necessary to maintain
such designation and appointment of such agent in full force and effect for a period of seven years
from the date of this Agreement.
The obligation of the Company and Infineon in respect of any sum due to any Underwriter shall,
notwithstanding any judgment in a currency other than United States dollars, not be discharged
until the first business day, following receipt by such Underwriter of any sum adjudged to be so
due in such other currency, on which (and only to the extent that) such Underwriter may in
accordance with
33
normal banking procedures purchase United States dollars with such other currency; if the
United States dollars so purchased are less than the sum originally due to such Underwriter
hereunder, the Company and Infineon agree, as a separate obligation and notwithstanding any such
judgment, to indemnify such Underwriter against such loss. If the United States dollars so
purchased are greater than the sum originally due to such Underwriter hereunder, such Underwriter
agrees to pay to the Company and Infineon an amount equal to the excess of the dollars so purchased
over the sum originally due to such Underwriter hereunder.
34
If the foregoing is in accordance with the Representatives’ understanding of our agreement,
kindly sign and return to the Company one of the counterparts hereof, whereupon it will become a
binding agreement between the Company and the several Underwriters in accordance with its terms.
| Very truly yours, | ||||||
| QIMONDA AG | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| INFINEON TECHNOLOGIES AG | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
| By: | ||||||
| Name: | ||||||
| Title: | ||||||
35
The foregoing Underwriting Agreement is
hereby confirmed and accepted as of
the date first above written.
hereby confirmed and accepted as of
the date first above written.
Credit Suisse Securities (USA) LLC
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Acting on behalf of themselves and
as the Representatives of the several Underwriters
as the Representatives of the several Underwriters
Credit Suisse Securities (USA) LLC
By |
||||
Name: |
||||
Title: |
||||
| Citigroup Global Markets Inc. | ||||
By |
||||
Name: |
||||
Title: |
||||
| ▇.▇. ▇▇▇▇▇▇ Securities Inc. | ||||
By |
||||
Name: |
||||
Title: |
||||
36
SCHEDULE A
Underwriters
Credit Suisse Securities (USA) LLC
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
ABN Amro Rothschild LLC
Bayerische Hypo –und Vereinsbank AG
Deutsche Bank Securities Inc.
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
ABN Amro Rothschild LLC
Bayerische Hypo –und Vereinsbank AG
Deutsche Bank Securities Inc.
SCHEDULE B
1. General Use Free Writing Prospectuses
“General Use Issuer Free Writing Prospectus” includes each of the following documents:
| 1. | [list any documents] |
2. Other Information Included in the General Disclosure Package
The following information is also included in the General Disclosure Package:
| 1. | The initial price to the public of the Offered Securities. | ||
| 2. | [list other information]] |
SCHEDULE C
List of Significant Subsidiaries as defined in Section 2(h) of the Underwriting Agreement
Qimonda Flash GmbH & Co. KG
Qimonda Dresden GmbH & Co. oHG
Qimonda Holding B.V.
Qimonda Investment B.V.
Qimonda Portugal S.A.
Infineon Technologies Flash Ltd.
Qimonda Richmond, LLC
Qimonda North America Corp.
Qimonda Asia Pacific Pte. Ltd.
Qimonda (Melaka) Sdn. Bhd.
Qimonda Module (Suzhou) Co. Ltd.
Qimonda Technologies Suzhou Co. Ltd.
SCHEDULE D
Form of Pricing Agreement
PRICING AGREEMENT dated August 8, 2006
among
among
| (1) | Qimonda AG (the “Company”); | |||
(2)
|
Infineon Technologies AG ( “Infineon”); | |||
(3)
|
(i) | Credit Suisse Securities (USA) LLC (“Credit Suisse”), | ||
| (ii) | Citigroup Global Markets Inc. (“Citigroup”), | |||
| (iii) | ▇.▇. ▇▇▇▇▇▇ Securities Inc. (“▇.▇. ▇▇▇▇▇▇”), and | |||
| (iv) | the other financial institutions set forth in Schedule A to the Underwriting Agreement as defined herein (the “Other Underwriters”). | |||
Credit Suisse, Citigroup, and ▇.▇. ▇▇▇▇▇▇ are collectively referred to as the “Representatives”;
the Representatives together with the Other Underwriters as the “Underwriters”.
RECITAL
In an underwriting agreement dated August 8, 2006 (the “Underwriting Agreement”), the Company, Infineon and the Underwriters have agreed that (i) the Company will issue and sell to the several Underwriters the New Shares at the Issue Price per share (plus, in accordance with subsection 4(c) thereof, the Excess Proceeds Amount) and each of the Underwriters will, severally and not jointly, underwrite and purchase from the Company the respective number of New Shares set forth opposite the names of the Underwriters in Schedule A hereto under the column captioned “Number of New Shares to Be Purchased by the Underwriters”, (ii) Infineon will sell to the several Underwriters and each Underwriter will underwrite and purchase from Infineon, severally and not jointly, (x) the respective number of Existing Firm Underlying Shares set forth opposite the name of the Underwriters in Schedule A hereto under the column captioned “Number of Existing Firm Underlying Shares to be Purchased from Infineon”, and (y) in the event the over-allotment option is exercised, the number of Optional Underlying Shares set forth in the column captioned “Number of Optional Underlying Shares to Be Purchased from Infineon if Over-Allotment Exercised in Full”, each at the Offer Price (as defined below) per share less the commissions pursuant to subsection 4(l) thereof, and (iii) the Underwriters will offer the Offered Shares in a public offering to investors in the United States of America and in a private placement to institutional investors internationally pursuant to available private placement exemptions.
In an underwriting agreement dated August 8, 2006 (the “Underwriting Agreement”), the Company, Infineon and the Underwriters have agreed that (i) the Company will issue and sell to the several Underwriters the New Shares at the Issue Price per share (plus, in accordance with subsection 4(c) thereof, the Excess Proceeds Amount) and each of the Underwriters will, severally and not jointly, underwrite and purchase from the Company the respective number of New Shares set forth opposite the names of the Underwriters in Schedule A hereto under the column captioned “Number of New Shares to Be Purchased by the Underwriters”, (ii) Infineon will sell to the several Underwriters and each Underwriter will underwrite and purchase from Infineon, severally and not jointly, (x) the respective number of Existing Firm Underlying Shares set forth opposite the name of the Underwriters in Schedule A hereto under the column captioned “Number of Existing Firm Underlying Shares to be Purchased from Infineon”, and (y) in the event the over-allotment option is exercised, the number of Optional Underlying Shares set forth in the column captioned “Number of Optional Underlying Shares to Be Purchased from Infineon if Over-Allotment Exercised in Full”, each at the Offer Price (as defined below) per share less the commissions pursuant to subsection 4(l) thereof, and (iii) the Underwriters will offer the Offered Shares in a public offering to investors in the United States of America and in a private placement to institutional investors internationally pursuant to available private placement exemptions.
DEFINITIONS AND INTERPRETATION
Each capitalized term used but not defined herein shall have the meaning ascribed thereto in the
Underwriting Agreement.
OFFER PRICE
The Offer Price for the Offered Securities shall be $• for each Offered Security.
NUMBER OF UNDERWRITTEN NEW SHARES AND EXISTING FIRM UNDERLYING SHARES
The total number of New Shares and Existing Firm Underlying Shares shall be 62,000,000 shares.
The number of New Shares and Existing Firm Underlying Shares that each Underwriter has agreed to
purchase under the terms and conditions of the Underwriting Agreement shall be as set forth
set forth opposite the names of the Underwriters in Schedule A hereto under the column
captioned “Number of New Shares to Be Purchased by the Underwriters”.
CONSENT OF THE CORPORATE BODIES OF THE COMPANY
The Company represents and warrants that the necessary corporate bodies of the Company have
approved the aforementioned Offer Price and volume.
GOVERNING LAW AND JURISDICTION; Miscellaneous
Governing Law. This Pricing Agreement shall be governed by, and construed in accordance
with, the laws of the State of the New York.
Jurisdiction. The Company and Infineon hereby submits to the non-exclusive jurisdiction of the
Federal and state courts in the Borough of Manhattan in The City of New York in any suit or
proceeding arising out of or relating to this Pricing Agreement or the transactions
contemplated hereby. The Company and Infineon irrevocably and unconditionally waives any
objection to the laying of venue of any suit or proceeding arising out of or relating to this
Pricing Agreement or the transactions contemplated hereby in Federal and state courts in the
Borough of Manhattan in The City of New York and irrevocably and unconditionally waives and
agrees not to plead or claim in any such court that any such suit or proceeding in any such
court has been brought in an inconvenient forum. The Company and Infineon irrevocably appoint
Qimonda North America Corp. as its authorized agent upon which process may be served in any
such suit or proceeding, and agrees that service of process upon such agent, and written
notice of said service to the Company or Infineon, as appropriate, by the person serving the
same to the respective addresses of the Company or Infineon provided in Section 14 of the
Underwriting Agreement, shall be deemed in every respect effective service of process upon the
Company or Infineon in any such suit or proceeding. The Company and Infineon further agree to
take any and all action as may be necessary to maintain such designation and appointment of
such agent in full force and effect for a period of seven years from the date of this Pricing
Agreement. The obligation of the Company and Infineon in respect of any sum due to any
Underwriter shall, notwithstanding any judgment in a currency other than United States
dollars, not be discharged until the first business day, following receipt by such Underwriter
of any sum adjudged to be so due in such other currency, on which (and only to the extent
that) such Underwriter may in accordance with normal banking procedures purchase United States
dollars with such other currency; if the United States dollars so purchased are less than the
sum originally due to such Underwriter hereunder, the Company and Infineon agree, as a
separate obligation and notwithstanding any such judgment, to indemnify such Underwriter
against such loss. If the United States dollars so purchased are greater than the sum
originally due to such Underwriter hereunder, such Underwriter agrees to pay to the Company
and Infineon an amount equal to the excess of the dollars so purchased over the sum originally
due to such Underwriter hereunder.
Schedule. Schedule A hereto forms an integral part of this Pricing Agreement.
Amendments to Agreement. Amendments to this Pricing Agreement shall only be made in
writing.
Counterparts. This Pricing Agreement may be signed in any number of counterparts, each of
which shall be deemed an original, with the same effect as if the signatures thereto and
hereto were upon the same instrument.
IN WITNESS WHEREOF, the parties hereto have caused this Pricing Agreement to be duly executed and
delivered on the date first written above.
By: |
||||
By: |
||||
| INFINEON TECHNOLOGIES AG | ||||
By: |
||||
By: |
||||
The foregoing Pricing Agreement is hereby
confirmed and accepted as of the date
first above written.
confirmed and accepted as of the date
first above written.
Credit Suisse Securities (USA) LLC
Citigroup Global Markets Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
▇.▇. ▇▇▇▇▇▇ Securities Inc.
Acting on behalf of themselves and
as the Representatives of the Other Underwriters
as the Representatives of the Other Underwriters
Credit Suisse Securities (USA) LLC
By |
||||
Name:
|
||||
Title: |
Citigroup Global Markets Inc.
By |
||||
Name:
|
||||
Title: |
▇.▇. ▇▇▇▇▇▇ Securities Inc.
By |
||||
Name:
|
||||
Title: |
Pricing Agreement – Schedule A
Underwriting Commitments of the Underwriters
The table below sets forth the underwriting commitments of each of the Underwriters with respect to
the New Shares and the Existing Firm Underlying Shares:
| Number of | Number of Optional | |||||||
| Existing Firm | Underlying Shares | |||||||
| Number of New | Underlying | to be Purchased | ||||||
| Shares to Be | Shares to be | from Infineon, if | ||||||
| Purchased by the | Purchased from | Over-Allotment | ||||||
| Underwriter | Underwriters | Infineon | Exercised in Full | Total | ||||
Credit Suisse
Securities (USA)
LLC |
||||||||
Citigroup Global
Markets Inc. |
||||||||
▇.▇. ▇▇▇▇▇▇
Securities Inc. |
||||||||
ABN AMRO Rothschild
LLC |
||||||||
Bayerische Hypound Vereinsbank AG |
||||||||
Deutsche Bank
Securities Inc. |
||||||||
Total |
||||||||
SCHEDULE E
Jurisdictions listed for purposes of Section 2(m) of the Underwriting Agreement
Jurisdictions listed for purposes of Section 2(m) of the Underwriting Agreement
United States, Canada, Germany, United Kingdom, France, Italy, Spain, Luxemburg, Austria, Belgium,
Denmark, Finland, Guernsey, Jersey, The Netherlands, Norway, Portugal, Spain, Sweden, Switzerland.
EXHIBIT A
FORM OF SUBSCRIPTION CERTIFICATE
1. Ausfertigung
Zeichnungsschein
(doppelt ausgefertigt)
Die außerordentliche Hauptversammlung der Qimonda AG, München, eingetragen im Handelsregister des
Amtsgerichts München unter HRB 152545, hat am 27. Juli 2006 beschlossen, das Grundkapital der
Gesellschaft von € 600.000.000,00 um € 84.000.000,00 auf € 684.000.000,00 gegen
Bareinlagen durch Ausgabe von 42.000.000,00 neuen, auf den Namen lautenden nennwertlosen
Stammaktien (Stückaktien) mit einem rechnerischen Anteil von je € 2,00 am Grundkapital und mit
Gewinnanteilberechtigung ab dem 1. Oktober 2005 zu erhöhen. Die neuen Aktien werden zum
Ausgabebetrag von € 2,00 pro Aktie ausgegeben. Das gesetzliche Bezugsrecht der Aktionäre ist
ausgeschlossen ▇▇▇▇▇▇. Zur Zeichnung der neuen Aktien ist die Citigroup Global Markets Deutschland
AG & Co. KGaA als Vertreterin des Bankenkonsortiums mit der Maßgabe zugelassen ▇▇▇▇▇▇, dass das
Bankenkonsortium die neuen Aktien im Rahmen der erstmaligen Börseneinführung der Gesellschaft am
US-Kapitalmarkt platziert und Citigroup Global Markets Deutschland AG & Co. KGaA als Vertreterin
des Bankenkonsortiums den Unterschiedsbetrag zwischen dem auf den Ausgabebetrag der neuen Aktien
eingezahlten Betrag und dem Platzierungspreis an die Gesellschaft abführt.
Wir zeichnen hiermit 42.000.000,00 neue, auf den Namen lautende nennwertlose Stammaktien
(Stückaktien) der Qimonda AG, München, mit ▇▇▇▇▇▇ Gewinnanteilberechtigung ab dem 1. Oktober 2005
gegen Bareinlage zu einem Ausgabebetrag von € 2,00 je Aktie, d.h. zu einem Gesamtausgabebetrag
von
€ 84.000.000,00
(in Worten: Euro vierundachtzig Millionen).
(in Worten: Euro vierundachtzig Millionen).
Wir haben 25 % des Gesamtausgabebetrages, das sind € 0,50 je Stückaktie, insgesamt €
21.000.000,00 (in Worten: Euro einundzwanzig Millionen) durch Gutschrift auf das bei Citigroup
Global Markets Deutschland AG & Co. KGaA zugunsten der Qimonda AG eingerichtete ▇▇▇▇- und
provisionsfreie Sonderkonto ,,Qimonda AG – Sonderkonto Kapitalerhöhung“ eingezahlt. Die restlichen
75 % des Gesamtausgabebetrages, das sind € 1,50 je Stückaktie, insgesamt € 63.000.000,00
Millionen (in Worten: Euro dreiundsechzig Millionen) werden wir unmittelbar nach der Eintragung der
Kapitalerhöhung dem Sonderkonto gutschreiben.
Die vorstehende Zeichnung wird unverbindlich, wenn die Durchführung der Kapitalerhöhung nicht bis
zum Ablauf des 8. August 2006 in das Handelsregister des Amtsgerichts ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇. August 2006
Citigroup Global Markets Deutschland AG & Co. KGaA
[Name]
Mitglied des Vorstands des persönlich haftenden Gesellschafters
EXHIBIT B
FORM OF BANK CERTIFICATE
Einzahlungsbestätigung
(Erklärung gemäß §§ 188 Abs. 2, 36 Abs. 2, 36a Abs. 1, 37 Abs. ▇ ▇▇▇▇▇▇▇▇▇▇▇▇)
(Erklärung gemäß §§ 188 Abs. 2, 36 Abs. 2, 36a Abs. 1, 37 Abs. ▇ ▇▇▇▇▇▇▇▇▇▇▇▇)
▇▇▇ ▇▇▇▇▇▇▇ beim Amtsgericht München — Handelsregister — bestätigen wir hiermit, dass wir der
auf einem für sie in unseren Büchern eröffneten ,,Qimonda AG — Sonderkonto Kapitalerhöhung“
(Konto-Nr.: ) 25 % des Gesamtausgabebetrages der durch die Citigroup Global Markets
Deutschland AG & Co. KGaA gezeichneten 42.000.000 neuen, auf den Namen lautenden nennwertlosen
Stammaktien (Stückaktien) mit einem rechnerischen Anteil von je € 2,00 am Grundkapital und mit
Gewinnanteilberechtigung ab dem 1. Oktober 2005 aus der ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
▇▇ ▇▇. Juli 2006 beschlossenen Kapitalerhöhung, das sind insgesamt
€ 21.000.000,00
(in Worten: Euro einundzwanzig Millionen)
(in Worten: Euro einundzwanzig Millionen)
gutgeschrieben haben.
Dieser Betrag steht endgültig zur freien Verfügung des ▇▇▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇.
▇▇▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇, ▇▇▇ ▇. August 2006
Citigroup Global Markets Deutschland AG & Co. KGaA
[Name]
Mitglied des Vorstands des persönlich haftenden Gesellschafters
EXHIBIT
C
FORM OF GLOBAL SHARE CERTIFICATE
WKN A0CBER
ISIN DE000A0CBER8
Ordnungsnr. 2
ISIN DE000A0CBER8
Ordnungsnr. 2
Qimonda AG
München
G L O B A L U R K U N D E
über bis zu 50.000.000 (in Worten: fünfzig Millionen)
über bis zu 50.000.000 (in Worten: fünfzig Millionen)
auf den Namen von Citigroup Global Markets Deutschland AG & Co. KGaA, Frankfurt am Main,
lautende Stückaktien mit einem rechnerischen Anteil am Grundkapital von je € 2
insgesamt € 100.000.000
Nummern 300.000.001 bis 350.000.000
Die Anzahl der in dieser Globalurkunde verbrieften Aktien und begebenen Aktien ergibt sich aus dem
jeweils neuesten Depotauszug der Clearstream Banking AG als Bestandteil dieser Urkunde.
Diese Globalurkunde ist ausschließlich zur Verwahrung bei der Clearstream Banking AG bestimmt.
Zu dieser Globalurkunde wurde kein Gewinnanteilschein ausgefertigt. Die in dieser Globalurkunde
verbrieften Aktien sind ab dem Geschäftsjahr 2005/06 gewinnberechtigt.
| München, im August 2006 | Qimonda AG |
| (Kin ▇▇▇ ▇▇▇) | (▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇) |
EXHIBIT D
Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, German counsel for the
Company and Infineon (to be delivered pursuant to section 8(a)(ii) of the
Underwriting Agreement)
Company and Infineon (to be delivered pursuant to section 8(a)(ii) of the
Underwriting Agreement)
1. The Company is a stock corporation (Aktiengesellschaft) duly registered with the
commercial register (Handelsregister) in Munich under HRB 152545 and validly existing under the
laws of Germany, with corporate power to own, lease and operate its properties and conduct its
business as described in the Registration Statement and to enter into the Underwriting Agreement,
the Pricing Agreement and the Deposit Agreement and perform its obligations thereunder.
2. Infineon is a stock corporation (Aktiengesellschaft) duly registered with the commercial
register (Handelsregister) in Munich under HRB 126492 and validly existing under the laws of
Germany, with corporate power to enter into the Underwriting Agreement and the Pricing Agreement,
and perform its obligations thereunder.
3. The Company has a registered share capital (Grundkapital), an authorized share capital
(genehmigtes Kapital) and a conditional capital (bedingtes Kapital) as described in the
Registration Statement; all of the outstanding Shares of the Company (i) are validly issued, (ii),
are fully paid and non-assessable, (iii) conform to the description thereof contained in the
Registration Statement, and (iv) are not subject to any transfer restrictions under the Articles of
Association or applicable provisions of German law except as set forth in the Registration
Statement.
4. The extraordinary shareholders’ meeting of the Company has validly resolved on July 27,
2006 to increase the Company’s share capital by € 84,000,000.00 through cash contributions
against issuance of the New Shares. Upon subscription and payment for the New Shares in accordance
with Section 4 of the Underwriting Agreement, and registration of the implementation of the Capital
Increase with the commercial register (Handelsregister) in Munich, the New Shares will be duly
issued, fully paid and freely transferable, except for such transfer restrictions as set forth in
the Registration Statement, and will conform to the description thereof contained in the
Registration Statement; the holders of outstanding Shares will not be entitled to preemptive rights
under the Articles of Association or the German Stock Corporation Act (Aktiengesetz) to acquire New
Shares.
5. The Underwriting Agreement has been duly authorized by each of the Company and Infineon and
duly executed by persons with corporate power to legally represent and bind the Company and
Infineon, respectively.
6. The Deposit Agreement has been duly authorized by the Company.
7. The execution by the Company of the Underwriting Agreement and the Deposit Agreement, the
issue and sale of the Offered Securities to the Underwriters, the offering of the Offered
Securities pursuant to the Underwriting Agreement and the performance by the Company of its
respective obligations under the Underwriting Agreement and the Deposit Agreement do not require
any consent, approval, authorization, order, registration of any regulatory or governmental
authority of Germany, except for the registration of the Capital Increase with the commercial
register (Handelsregister) in Munich.
8. The execution by Infineon of the Underwriting Agreement and the performance by the Infineon
of its obligations under the Underwriting Agreement do not require any consent, approval,
authorization, order, registration of any regulatory or governmental authority of Germany.
9. The issue of the New Shares and the execution of the Underwriting Agreement and the Deposit
Agreement and the performance by the Company and Infineon of their respective obligations
thereunder do not conflict with or result in a violation of their respective articles of
association
or applicable provisions of a German statute (Gesetz) or a regulation (Verordnung) issued by
any German governmental agency.
10. The choice of law of the State of New York as the governing law of the Underwriting
Agreement and the Deposit Agreement is legal and binding under German law and will be recognized
and given effect by German courts, except to the extent that (x) any of the provisions of New York
law applicable to such agreements are manifestly incompatible with the ordre public (within the
meaning of Article 6 of the German Introductory Act to the Civil Code (EGBGB)) or (y) there are
mandatory provisions of German law (within the meaning of Article 34 of the German Introductory Act
to the Civil Code (EGBGB)) which must be applied to the transaction covered by such agreement
irrespective of the law otherwise applicable to such agreement.
11. The submission to the jurisdiction of the federal and state courts in the Borough of
Manhattan in The City of New York and the appointment of the process agent contained in Section 19
of the Underwriting Agreement are irrevocably binding on the Company and Infineon.
12. Any final and conclusive judgment for a definite sum obtained for the recovery of amounts
due and unpaid under the Underwriting Agreement in a federal or state court in the Borough of
Manhattan in The City of New York will be recognized and enforced by the courts of Germany against
the Company and Infineon, respectively, without review of the merits, subject to the limitations of
Section 328(1) of the German Code of Civil Procedure (ZPO) which provides that a foreign judgment
will not be recognized (a) if, applying German law, the courts in the country of the court having
rendered the foreign judgment did not have jurisdiction; (b) if process has not been duly served or
has not been served in a timely fashion to permit a defense and the defendant so pleads, unless the
defendant has made an appearance; (c) if the judgment is incompatible with a judgment rendered by a
German court or a prior judgment rendered by a foreign court which is to be recognized in Germany,
or if the proceeding resulting in the judgment to be recognized is incompatible with a proceeding
previously commenced in Germany; (d) if a recognition of the judgment would be manifestly contrary
to German ordre public, in particular if the recognition would be incompatible with the basic
rights under the German Constitution; or (e) if reciprocity is not ensured.
13. Except as described in the Registration Statement, all dividends and other distributions
declared and payable on the Offered Securities may, under the laws and regulations of Germany, be
paid in freely convertible and transferable legal currency of Germany and the amount of the
dividends may be transferred out of Germany. Except as described in the Registration Statement,
dividends paid, and other distributions made, to Non-German Shareholders will be free of any tax,
withholding or deduction in Germany.
14. The statements set forth in the Registration Statement under the headings “Management”,
“Articles of Association”, “Exchange Controls and Limitations Affecting Shareholders”, insofar as
such statements purport to summarize certain provisions of the Shares, the Articles of Association,
the German Stock Corporation Act and other relevant German law, provide a fair summary of such
provisions in all material respects.
15. The statements set forth in the Registration Statement under the heading “Taxation –
German Taxation”, insofar as such statements purport to summarize certain tax laws of Germany,
provide a fair summary of the principal German tax consequences for holders of the Offered
Securities.
16. No stamp duties or registration, issue, documentary, transfer or similar taxes or duties
are payable by or on behalf of the Underwriters to Germany or any political subdivision or taxing
authority thereof or therein in connection with the sale or delivery of the Offered Securities to
the Underwriters pursuant to the Underwriting Agreement or the sale or delivery of the Offered
Securities to the investors as contemplated by the Underwriting Agreement.
EXHIBIT E
Form of Opinion of In-House Legal Department of the Company (to be delivered
pursuant to section 8(a)(iii) of the Underwriting Agreement)
pursuant to section 8(a)(iii) of the Underwriting Agreement)
1. The Company has a registered share capital (Grundkapital), an authorized share capital
(genehmigtes Kapital) and a conditional capital (bedingtes Kapital) as described in the
Registration Statement; all of the outstanding Shares of the Company (i) are validly issued, (ii)
are fully paid and non-assessable (nicht nachschusspflichtig), (iii) conform to the description
thereof contained in the Registration Statement, and (iv) are not subject to any transfer
restrictions under the Articles of Association or applicable provisions of German law except as set
forth in the Registration Statement.
2. Upon subscription and payment for the New Shares in accordance with Section 4 of the
Underwriting Agreement, and registration of the implementation of the Capital Increase with the
commercial register (Handelsregister) in Munich, the New Shares will be duly issued, fully paid and
freely transferable, except for such transfer restrictions as set forth in the Registration
Statement, and will conform to the description thereof contained in the Registration Statement; the
holders of outstanding Shares will not be entitled to preemptive rights under the Articles of
Association or the German Stock Corporation Act (Aktiengesetz) to acquire New Shares.
3. The Underwriting Agreement and the Deposit Agreement have been duly authorized by the
Company, and the Underwriting Agreement has been duly executed by persons with corporate power to
legally represent and bind the Company.
4. The issue of the New Shares and the execution by the Company of the Underwriting Agreement
and the Deposit Agreement and the performance by the Company of its obligations thereunder do not
conflict with or result in a violation of the Articles of Association or applicable provisions of
German law or any rule, order, or regulation of any German governmental agency or any agreement or
instrument governed by German law to which the Company or any of its subsidiaries is a party or by
which the Company or any of its subsidiaries is bound or to which any of the properties of the
Company or any of its subsidiaries is subject.
5. Neither the Company nor any of its subsidiaries is in violation of its articles of
association and, to the best of our knowledge, no default (or event which, with the giving of
notice or lapse of time would be a default) has occurred in the due performance or observance of
any material obligation, material agreement, material covenant or material condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument
governed by German law that is described or referred to in a Registration Statement or filed or
incorporated by reference as an exhibit to a Registration Statement.
6. The statements set forth in the Registration Statement under the headings “Management”,
“Articles of Association”, “Exchange Controls and Limitations Affecting Shareholders”, insofar as
such statements purport to summarize certain provisions of the Shares, the Articles of Association,
the German Stock Corporation Act and other relevant German law, provide a fair summary of such
provisions in all material respects.
7. The statements set forth in the Registration Statement under the heading “Taxation – German
Taxation”, insofar as such statements purport to summarize certain tax laws of Germany, provide a
fair summary of the principal German tax consequences for holders of the Offered Securities.
8. Neither the Company nor any of its properties have any immunity from jurisdiction of any
German court or from any legal German process (whether through service, notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under German law.
EXHIBIT F
Form of Opinion of In-House Legal Department of Infineon (to be delivered
pursuant to section 8(a)(iv) of the Underwriting Agreement)
pursuant to section 8(a)(iv) of the Underwriting Agreement)
1. The execution of the Underwriting Agreement by Infineon and the performance by
Infineon of its obligations thereunder do not conflict with or result in a violation of the
Articles of Association or applicable provisions of German law or any rule, order, or regulation of
any German governmental agency or any agreement or instrument governed by German law to which
Infineon or any of its subsidiaries (excluding the Company) is a party or by which Infineon or any
of its subsidiaries (excluding the Company) is bound or to which any of the properties of Infineon
or any of its subsidiaries (excluding the Company) is subject.
2. Neither Infineon nor any of its properties have any immunity from jurisdiction of any
German court or from any legal German process (whether through service, notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under German law.
EXHIBIT G
Form of Letter of KPMG Deutsche Treuhand-Gesellschaft Aktiengesellschaft
Wirtschaftsprüfungsgesellschaft (“KPMG”) to be delivered pursuant to section
8(b)(i) and 8(c)(i) of the Underwriting Agreement
Wirtschaftsprüfungsgesellschaft (“KPMG”) to be delivered pursuant to section
8(b)(i) and 8(c)(i) of the Underwriting Agreement
We have audited, in accordance with the auditing standards of the Public Company Accounting
Oversight Board (United States), the combined balance sheets of Qimonda AG (the “Company”) as of
September 30, 2004 and 2005, and the related combined statements of operations, business equity and
cash flows for each of the years in the two-year period ended September 30, 2005, all included in
the Registration Statement (no. 333-•), as amended, on Form F-1 (the “Registration Statement”),
filed by the Company under the Securities Act of 1933, as amended (the “Act”); our report with
respect thereto is also included in that Registration Statement. The Registration Statement, the
preliminary prospectus dated as of •, 2006 (the “Preliminary Prospectus”) and the final prospectus
dated as of •, 2006 (the “Final Prospectus”) are herein collectively referred to as the
Registration Statement.
In connection with the Registration Statement:
| 1. | We are an independent registered public accounting firm as required by the standards of the Public Company Accounting Oversight Board (United States) (the “PCAOB”) with respect to the Company and we are independent auditors within the meaning of the Act and the applicable rules and regulations thereunder adopted by the Securities and Exchange Commission (the “SEC”). | |
| 2. | In our opinion, the combined financial statements of the Company audited by us and included in the Registration Statement comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. | |
| 3. | We have not audited any financial statements of the Company as of any date or for any period subsequent to September 30, 2005; although we have conducted an audit for the year ended September 30, 2005, the purpose (and therefore the scope) of the audit was to enable us to express our opinion on the combined financial statements of the Company as of September 30, 2005 and for the year then ended, but not on the combined financial statements for any interim period within that year. Therefore, we are unable to and do not express an opinion on the unaudited condensed combined balance sheet as of March 31, 2006, and the unaudited condensed combined statements of operations, business equity and cash flows for the six-month periods ended March 31, 2005 and 2006, included in the Registration Statement, or on the financial position, results of operations, or cash flows as of any date or for any period subsequent to September 30, 2005. | |
| 4. | For purposes of this letter, we have read the minutes of the general meetings of the shareholders (“Hauptversammlung”), minutes of meetings of the Supervisory Board (“Aufsichtsrat”), including its investing, financing and auditing committees and the Management Board (“Vorstand”) of the Company for the period from October 1, 2005 to August •, 2006, officials of the Company having advised us that the minutes of all such meetings as of that date were set forth therein, except that the minutes for the general meeting of the shareholders held on June 20, 2006 and the meetings of the Management Board held on July 4, 2006, July 11, 2006, and July 18, 2006 have not yet been approved. With respect to the general meeting of the shareholders held on June 20, 2006 and the meetings of the Management Board held on July 4, 2006, July 11, 2006, and July 18, 2006, for which minutes have not been approved, officials of the Company provided us with a description of matters discussed and actions taken therein. |
| 5. | We have carried out other procedures to August •, 2006, as follows (our work did not extend to the period from August •, 2006 to August •, 2006, inclusive). |
| a. | With respect to the six-month periods ended March 31, 2005 and 2006, we have: |
| (i) | Performed the procedures specified by the Public Company Accounting Oversight Board (United States) for a review of interim financial information as described in SAS No. 100, Interim Financial Information, on the unaudited condensed combined balance sheet as of March 31, 2006 and the unaudited condensed combined statements of operations, business equity, and cash flows of the Company for the six-month periods ended March 31, 2005 and 2006, included in the Registration Statement; | ||
| (ii) | Inquired of certain officials of the Company who have responsibility for financial and accounting matters whether the unaudited condensed combined financial statements referred to in section 5a(i) hereof comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. |
| b. | With respect to the three- and nine-month periods ended June 30, 2005 and 2006, we have: |
| (i) | Read the incomplete unaudited condensed combined financial statements of the Company for the three- and nine-month periods ended June 30, 2005 and 2006 furnished to us by the Company and attached to this letter, officials of the Company having advised us that no such financial statements as of any date or for any period subsequent to June 30, 2006, were available. The incomplete unaudited condensed combined financial statements for the three- and nine-month periods ended June 30, 2005 and 2006 are incomplete in that they omit statements of business equity and cash flows as well as footnote disclosures. | ||
| (ii) | Inquired of certain officials of the Company who have responsibility for financial and accounting matters whether the unaudited condensed combined financial statements referred to in section 5b(i) hereof are stated on a basis substantially consistent with that of the audited combined financial statements included in the Registration Statement. |
| The foregoing procedures do not constitute an audit conducted in accordance with the standards of the Public Company Accounting Oversight Board (United States). Also, they would not necessarily reveal matters of significance with respect to the comments in the following paragraphs. Accordingly, we make no representations regarding the sufficiency of the foregoing procedures for your purposes. |
| 6. | Nothing came to our attention as a result of the foregoing procedures, however, that caused us to believe that: |
| a. | Any material modifications should be made to the unaudited condensed combined financial statements described in section 5a(i) hereof, included in the Registration Statement, for them to be in conformity with accounting principles generally accepted in the United States of America (“U.S. GAAP”). | ||
| b. | The unaudited condensed combined financial statements described in section 5a(i) hereof do not comply as to form in all material respects with the applicable accounting requirements of the Act and the related rules and regulations adopted by the SEC. | ||
| c. | At June 30, 2006, there was any change in the capital stock, increase in long-term debt or decrease in working capital or shareholders’ equity (business equity) of the Company as |
| compared with amounts shown on the unaudited condensed combined balance sheet as of March 31, 2006 included in the Registration Statement, or |
| d. | For the period from April 1, 2006 to June 30, 2006, there were any decreases, as compared with the corresponding period in the preceding year, in net sales or in the total or per-share amounts of net income (loss), except in all instances for changes, increases, or decreases that the Registration Statement discloses have occurred or may occur. |
| 7. | As mentioned in section 5b(i) hereof, officials of the Company have advised us that no combined financial statements as of any date or for any period subsequent to June 30, 2006 are available; accordingly, the procedures carried out by us with respect to changes in financial statement items after June 30, 2006, have, of necessity, been even more limited than those with respect to the periods referred to in section 5b(i) hereof. We have inquired of certain officials of the Company who have responsibility for financial and accounting matters whether: |
| a. | At August •, 2006, there was any change in the capital stock, increase in long-term debt or decrease in working capital or shareholders’ equity (business equity) of the Company as compared with amounts shown on the incomplete unaudited condensed combined balance sheet as of June 30, 2006 attached to this letter, or | ||
| b. | For the period from July 1, 2006 to August •, 2006, there were any decreases, as compared with the corresponding period in the preceding year, in net sales or any increase in the total or per-share amounts of net loss. |
On the basis of these inquiries and our reading of the minutes as described in section 4
hereof, nothing came to our attention that caused us to believe that there was any such
change, increase or decrease, except in all instances for changes, increases or decreases,
that the Registration Statement discloses have occurred or may occur.
| 8. | For purposes of this letter, we have also read the euro or dollar amounts, share amounts, percentages, ratios, and other amounts identified by you on the attached copies of certain pages of the Registration Statement, and have performed the following procedures, which were applied as indicated with respect to the letters explained below. For the purpose of reporting our findings in those instances in which one or both of the compared amounts, percentages or ratios were rounded to some degree and the amounts, percentages or ratios were in agreement except that they were not rounded to the same degree, we have nevertheless stated that we found the compared amounts, ratios and percentages to be in agreement. With respect to disclosure by the Company of any non GAAP financial measures as defined in Regulation G, we make no comment as to whether such measures or the resulting disclosures comply with the requirements of Regulation G or Item 10 of Regulation S-K. With respect to the items identified, we make no comments as to the appropriateness of the Company’s determination to select those items to appear under the captions so presented, we make no comment as to Company’s determination as to what constitutes the appropriate presentation, disclosure or explanation of such items, or their completeness or appropriateness for purposes of the Registration Statement, or the appropriateness of the Company’s computational procedures, because different computational procedures and/or computational bases might produce different results. Also, we make no comment as to the appropriateness or completeness of the Company’s determination of the causes of the increases or decreases in amounts discussed in the Registration Statement. | |
| For the purpose of reporting our findings in the following letters, the term “accounting records” means those records, which officials of the Company represented to us were developed from various sources, including books of original entry, that are collectively subject to the Company’s internal control over financial reporting. Additionally, we make no comment as to the completeness or accuracy of the schedules or amounts developed from the Company’s accounting records. |
| A. | We compared the euro, dollar, or share amount, ratio, or percentage, as applicable, to the corresponding euro, dollar, or share amount, ratio, or percentage included in the Company’s audited combined financial statements included in the Registration Statement, and found them to be in agreement. | ||
| B. | We recalculated the euro, dollar or share amount, ratio, or percentage, as applicable, to the corresponding euro, dollar or share amount, ratio, or percentage using information contained in the Company’s audited combined financial statements included in the Registration Statement, and found them to be in agreement. | ||
| C. | We compared the euro, dollar or share amount, ratio, or percentage, as applicable, to the corresponding euro, dollar or share amount, ratio, or percentage included in the Company’s unaudited condensed combined financial statements included in the Registration Statement, and found them to be in agreement. | ||
| D. | We recalculated the euro, dollar or share amount, ratio, or percentage, as applicable, to the corresponding euro, dollar or share amount, ratio, or percentage using information contained in the Company’s unaudited condensed combined financial statements included in the Registration Statement, and found them to be in agreement. | ||
| E. | We compared or recalculated the euro, dollar, or share amount, ratio, or percentage, as applicable, to the corresponding euro, dollar, or share amount, ratio, or percentage as set forth on or derived from a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. | ||
| F. | We compared the euro amount, ratio, or percentage, as appropriate, to the corresponding euro amount, ratio, or percentage as set forth on a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. We make no representation as to whether EBIT, defined by the Company as net income (loss) plus interest expense and income tax expense, is an important measure of performance or whether it is an important metric often used by investors to evaluate the performance of a business. Further, we make no representation as to whether the EBIT financial measure, or the components of the computed amount or the manner in which it is reconciled to the most comparable GAAP measure, is in accordance with the rules adopted by the SEC that apply to registration statements filed under the Act. | ||
| G. | We compared the euro amount, ratio, or percentage, as appropriate, to the corresponding euro amount, ratio, or percentage as set forth on a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. We make no representation as to whether Net Cash Position, defined by the Company as cash and cash equivalents plus marketable securities and restricted cash less short term debt, current maturities of long term debt and long term debt, is an important measure of performance or whether it is an important metric often used by investors to evaluate the performance of a business. Further, we make no representation as to whether the Net Cash Position financial measure, or the components of the computed amount or the manner in which it is reconciled to the most comparable GAAP measure, is in accordance with the rules adopted by the SEC that apply to registration statements filed under the Act. | ||
| H. | We compared the euro amount, ratio, or percentage, as appropriate, to the corresponding euro amount, ratio, or percentage as set forth on a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. We make no representation as to whether Gross Cash Position, defined by the Company as cash and cash equivalents, marketable securities and |
| restricted cash, is an important measure of performance or whether it is an important metric often used by investors to evaluate the performance of a business. Further, we make no representation as to whether the Gross Cash Position financial measure, or the components of the computed amount or the manner in which it is reconciled to the most comparable GAAP measure, is in accordance with the rules adopted by the SEC that apply to registration statements filed under the Act. |
| I. | We compared the euro amount, ratio, or percentage, as appropriate, to the corresponding euro amount, ratio, or percentage as set forth on a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. We make no representation as to whether Free Cash Flow, defined by the Company as cashflow from operating and investing activities, excluding purchases or sales of marketable securities, is an important measure of performance or whether it is an important metric often used by investors to evaluate the performance of a business. Further, we make no representation as to whether the Free Cash Flow financial measure, or the components of the computed amount or the manner in which it is reconciled to the most comparable GAAP measure, is in accordance with the rules adopted by the SEC that apply to registration statements filed under the Act. | ||
| J. | We compared or recalculated the euro or dollar amount, ratio, or percentage, as applicable, to the corresponding euro or dollar amount, ratio, or percentage as set forth on or derived from a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. However, we make no comment as to the reasonableness of the “Use of Proceeds” or whether such uses will actually take place. | ||
| K. | We recalculated the euro amount, ratio, or percentage under the column captioned “As Adjusted” in the section of the Registration Statement under the caption “Capitalization”, based on the assumptions specified in the Registration Statement, and found them to be in agreement. However, we make no comment as to the reasonableness or appropriateness, nor as to the ultimate amount or use of proceeds. | ||
| L. | We compared the euro amount, ratio, or percentage, as appropriate, to the corresponding euro amount, ratio, or percentage as set forth on a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. We make no representation as to whether the Equity-to-Fixed-Assets ratio, defined by the Company as total business equity divided by property, plant, and equipment, net, is an important measure of performance or whether it is an important metric often used by investors to evaluate the performance of a business. Further, we make no representation as to whether the Equity-to-Fixed-Assets financial measure, or the components of the computed amount or the manner in which it is reconciled to the most comparable GAAP measure, is in accordance with the rules adopted by the SEC that apply to registration statements filed under the Act. | ||
| M. | We compared the euro amount, ratio, or percentage, as appropriate, to the corresponding euro amount, ratio, or percentage as set forth on a schedule or analysis derived from the accounting records of the Company subject to the Company’s internal controls over financial reporting, and prepared by the Company’s personnel who have responsibility for financial and accounting matters, and found them to be in agreement. We make no representation as to whether the Debt-to-Equity ratio, defined by the Company as total liabilities divided by total business equity, is an important measure of performance or whether it is an important metric often used by investors to evaluate the performance of a business. Further, we make no representation as |
| to whether the Debt-to-Equity financial measure, or the components of the computed amount or the manner in which it is reconciled to the most comparable GAAP measure, is in accordance with the rules adopted by the SEC that apply to registration statements filed under the Act. |
We make no representation regarding the following:
| • | The beneficial ownership of shares issued by the Company; | ||
| • | The number of shares ultimately to be sold or the price per share at which they may ultimately be sold; | ||
| • | The status of shares outstanding after the offering for purposes of federal securities law; | ||
| • | The appropriateness or completeness of the Company’s determination of the Regulation S-K requirements for quantitative and qualitative disclosures about market risk or with respect to the reasonableness of the assumptions underlying the disclosures; |
| 9. | Our audit of the combined financial statements for periods referred to in the introductory paragraphs of this letter comprised audit tests and procedures deemed necessary for the purpose of expressing an opinion taken as a whole. For none of the periods referred to therein, or any other period, did we perform audit tests for the purpose of expressing an opinion on individual balances of accounts, percentages, ratios, or summaries of selected transactions, and, accordingly, we express no opinion thereon. | |
| 10. | It should be understood that our procedures with respect to the information contained in the Management’s Discussion and Analysis of Financial Condition and Results of Operations (the MD&A) included in the Registration Statement, were limited to applying the procedures stated above, and therefore, we make no representations regarding the adequacy of the discussion contained therein, whether any facts have been omitted, or regarding the adequacy of the disclosures in the MD&A, other than with respect to the results of the procedures performed as described in the preceding paragraphs above. | |
| 11. | It should be understood that we make no representations regarding questions of legal interpretation or regarding the sufficiency for your purposes of the procedures enumerated in section 8 hereof; also, such procedures would not necessarily reveal any material misstatement of the amounts, ratios, or percentages identified by you on the attached pages of the Registration Statement. Further, we have addressed ourselves solely to the foregoing data as set forth in the Registration Statement and make no representations regarding the adequacy of disclosure or regarding whether any material facts have been omitted. | |
| 12. | This letter is solely for the information of the addressees and to assist the underwriters in conducting and documenting their own investigation of the affairs of the Company in connection with the offering of securities covered by the Registration Statement, and it is not to be used, circulated, quoted, or otherwise referred to within or without the underwriting group for any other purpose, including but not limited to the registration, purchase, or sale of securities, nor is it to be filed with or referred to in whole or in part in the Registration Statement or any other document, except that references may be made to it in the underwriting agreement or in any list of closing documents pertaining to the offering of the securities covered by the Registration Statement. |
EXHIBIT H
Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the
Company and Infineon (to be delivered pursuant to section 8(b)(ii) of the
Underwriting Agreement)
Company and Infineon (to be delivered pursuant to section 8(b)(ii) of the
Underwriting Agreement)
1. The Underwriting Agreement has been duly executed and delivered by the Company and
the Selling Shareholder under the laws of the State of New York.
2. The Deposit Agreement has been duly executed and delivered by the Company under the laws
of the State of New York and constitutes a valid, binding and enforceable agreement of the Company.
3. Upon due issuance by the Depositary of ADRs evidencing ADSs against the deposit of the
Securities by the Company and the Selling Shareholder in respect thereof in accordance with the
provisions of the Deposit Agreement, such ADRs will be duly and validly issued and the person in
whose name the ADRs are registered will be entitled to the rights specified therein and in the
Deposit Agreement.
4. The sale by the Company and the Selling Shareholder of the Securities to the Underwriters
pursuant to the Underwriting Agreement and the performance by the Company and the Selling
Shareholder of their obligations under the Underwriting Agreement and, in the case of the Company,
the Deposit Agreement (a) do not require any consent, approval, authorization, registration or
qualification of or with any governmental authority of the United States or the State of New York
that in our opinion would normally be applicable to general business entities with respect to such
sale or performance, except such as have been obtained or effected under the Securities Act and the
Securities Exchange Act of 1934, as amended (but we express no opinion as to any consent, approval,
authorization, registration or qualification that may be required under state securities or blue
sky laws), and (b) do not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any New York State or United States federal law that in our opinion
would normally be applicable to general business entities with respect to such sale or performance
(but we express no opinion relating to the antifraud provisions under the United States federal
securities laws or any state securities or blue sky laws).
5. The statements set forth in the Preliminary Prospectus under the heading “Description of
American Depositary Receipts,” insofar as such statements purport to summarize certain provisions
of the Deposit Agreement and the ADRs, provide a fair summary of such provisions; the statements
set forth in the Preliminary Prospectus under the heading “Taxation – United States Taxation,”
insofar as such statements purport to summarize certain federal income tax laws of the United
States, constitute a fair summary of the principal U.S. federal income tax consequences of an
investment in the Securities by a U.S. Shareholder (as defined in the Preliminary Prospectus).
6. No registration of the Company under the Investment Company Act of 1940, as amended, is
required for the offer and sale of the Securities by the Company or the Selling Shareholder in the
manner contemplated by the Underwriting Agreement and the Preliminary Prospectus.
7. Under the laws of the State of New York relating to submission to jurisdiction, the
Company has, pursuant to Section 19 of the Underwriting Agreement and Section 7.6 of the Deposit
Agreement, (i) validly and irrevocably submitted to the personal jurisdiction of any New York State
or U.S. Federal court located in the Borough of Manhattan, The City of New York, New York, in any
action arising out of or related to the Underwriting Agreement or the Deposit Agreement, as the
case may be, (ii) validly and irrevocably waived any objection to the venue of a proceeding in any
such court and (iii) validly and irrevocably appointed Qimonda North America Corp. as its initial
authorized agent for the purpose described in Section 19 of the Underwriting Agreement and Section
7.6 of the Deposit Agreement; and service of process effected on such agent in any manner permitted
by applicable law will be effective to confer valid personal jurisdiction over the Company in any
such action.
8. Under the laws of the State of New York relating to submission to jurisdiction, the
Selling Shareholder has, pursuant to Section 19 of the Underwriting Agreement, (i) validly and
irrevocably submitted to the personal jurisdiction of any New York State or U.S. Federal court
located in the Borough of Manhattan, The City of New York, New York, in any action arising out of
or related to the Underwriting Agreement, (ii) validly and irrevocably waived any objection to the
venue of a proceeding in any such court and (iii) validly and irrevocably appointed Infineon
Technologies North America Corp. as its initial authorized agent for the purpose described in
Section 19 of the Underwriting Agreement; and service of process effected on such agent in any
manner permitted by applicable law will be effective to confer valid personal jurisdiction over the
Selling Shareholder in any such action.
EXHIBIT I
Form of Disclosure Letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel
for the Company and Infineon (to be delivered pursuant to section 8(b)(iii) of the
Underwriting Agreement)
for the Company and Infineon (to be delivered pursuant to section 8(b)(iii) of the
Underwriting Agreement)
(a) The Registration Statement, as amended and supplemented, (except the financial
statements and schedules and other financial data included therein, as to which we express no view)
and the ADS Registration Statement, at the time each became effective, appeared on their face to be
appropriately responsive in all material respects to the requirements of the Securities Act and the
rules and regulations thereunder. In addition, we do not know of any contracts or other documents
of a character required to be filed as exhibits to the Registration Statement or the ADS
Registration Statement or required to be described in the Registration Statement or the ADS
Registration Statement that have not been filed or described as required.
(b) No information has come to our attention that causes us to believe that the Registration
Statement, as amended and supplemented, (except the financial statements and schedules and other
financial data included therein, as to which we express no view) or the ADS Registration Statement,
at the time each became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) No information has come to our attention that causes us to believe that the Preliminary
Prospectus, considered together with the Free Writing Prospectus filed on August 1, 2006 (the “Free
Writing Prospectus”) pursuant to Rule 433, (except in each case the financial statements and
schedules and other financial data included therein, as to which we express no view), as of • p.m.
on the date of the Underwriting Agreement, contained an untrue statement of a material fact or
omitted to state a material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made, not misleading.
We confirm to you that the Registration Statement was declared effective under the Securities
Act of 1933, as amended (the “Securities Act”), as of • p.m. August [•], 2006, the Final Prospectus
was filed with the Commission pursuant to Rule 424(b), and (based solely upon a telephonic
confirmation from a representative of the Commission) the Registration Statement and the ADS
Registration Statement are effective under the Securities Act, and, to the best of our knowledge,
no stop order with respect thereto has been issued, and no proceeding for that purpose has been
instituted or threatened, by the Commission.
EXHIBIT J
Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel for the
Company and Infineon (to be delivered pursuant to section 8(c)(iv) of the
Underwriting Agreement)
Company and Infineon (to be delivered pursuant to section 8(c)(iv) of the
Underwriting Agreement)
1. The Underwriting Agreement has been duly executed and delivered by the Company and
the Selling Shareholder under the laws of the State of New York.
2. The Deposit Agreement has been duly executed and delivered by the Company under the laws
of the State of New York and constitutes a valid, binding and enforceable agreement of the Company.
3. Upon due issuance by the Depositary of ADRs evidencing ADSs against the deposit of the
Securities by the Company and the Selling Shareholder in respect thereof in accordance with the
provisions of the Deposit Agreement, such ADRs will be duly and validly issued and the person in
whose name the ADRs are registered will be entitled to the rights specified therein and in the
Deposit Agreement.
4. The sale by the Company and the Selling Shareholder of the Securities to the Underwriters
pursuant to the Underwriting Agreement and the performance by the Company and the Selling
Shareholder of their obligations under the Underwriting Agreement and, in the case of the Company,
the Deposit Agreement (a) do not require any consent, approval, authorization, registration or
qualification of or with any governmental authority of the United States or the State of New York
that in our opinion would normally be applicable to general business entities with respect to such
sale or performance, except such as have been obtained or effected under the Securities Act and the
Securities Exchange Act of 1934, as amended (but we express no opinion as to any consent, approval,
authorization, registration or qualification that may be required under state securities or blue
sky laws), and (b) do not result in a breach or violation of any of the terms and provisions of, or
constitute a default under, any New York State or United States federal law that in our opinion
would normally be applicable to general business entities with respect to such sale or performance
(but we express no opinion relating to the antifraud provisions under the United States federal
securities laws or any state securities or blue sky laws).
5. The statements set forth in the Pricing Prospectus and the Final Prospectus under the
heading “Description of American Depositary Receipts,” insofar as such statements purport to
summarize certain provisions of the Deposit Agreement and the ADRs, provide a fair summary of such
provisions; and the statements set forth in the Pricing Prospectus and the Final Prospectus under
the heading “Taxation,” insofar as such statements purport to summarize certain Federal income tax
laws of the United States, constitute a fair summary of the principal U.S. Federal income tax
consequences of an investment in the Securities by a U.S. Shareholder (as defined in the Pricing
Prospectus and the Final Prospectus).
6. No registration of the Company under the Investment Company Act of 1940, as amended, is
required for the offer and sale of the Securities by the Company or the Selling Shareholder in the
manner contemplated by the Underwriting Agreement, the Pricing Prospectus and the Final Prospectus.
7. Under the laws of the State of New York relating to submission to jurisdiction, the
Company has, pursuant to Section 19 of the Underwriting Agreement and Section 7.6 of the Deposit
Agreement, (i) validly and irrevocably submitted to the personal jurisdiction of any New York State
or U.S. Federal court located in the Borough of Manhattan, The City of New York, New York, in any
action arising out of or related to the Underwriting Agreement or the Deposit Agreement, as the
case may be, (ii) validly and irrevocably waived any objection to the venue of a proceeding in any
such court and (iii) validly and irrevocably appointed Qimonda North America Corp. as its initial
authorized agent for the purpose described in Section 19 of the Underwriting Agreement and Section
7.6 of the Deposit Agreement; and service of process effected on such agent in any manner permitted
by applicable law will be effective to confer valid personal jurisdiction over the Company in any
such action.
8. Under the laws of the State of New York relating to submission to jurisdiction, the
Selling Shareholder has, pursuant to Section 19 of the Underwriting Agreement, (i) validly and
irrevocably submitted to the personal jurisdiction of any New York State or U.S. Federal court
located in the Borough of Manhattan, The City of New York, New York, in any action arising out of
or related to the Underwriting Agreement, (ii) validly and irrevocably waived any objection to the
venue of a proceeding in any such court and (iii) validly and irrevocably appointed Infineon
Technologies North America Corp. as its initial authorized agent for the purpose described in
Section 19 of the Underwriting Agreement; and service of process effected on such agent in any
manner permitted by applicable law will be effective to confer valid personal jurisdiction over the
Selling Shareholder in any such action.
EXHIBIT K
Form of Disclosure Letter of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, U.S. counsel
for the Company and Infineon (to be delivered pursuant to section 8(c)(iv) of the
Underwriting Agreement)
for the Company and Infineon (to be delivered pursuant to section 8(c)(iv) of the
Underwriting Agreement)
(a) The Registration Statement, as amended and supplemented (except the financial
statements and schedules and other financial data included therein, as to which we express no view)
and the ADS Registration Statement, at the time each became effective, and the Final Prospectus
(except as aforesaid), as of the date thereof, appeared on their face to be appropriately
responsive in all material respects to the requirements of the Securities Act and the rules and
regulations thereunder. In addition, we do not know of any contracts or other documents of a
character required to be filed as exhibits to the Registration Statement or the ADS Registration
Statement or required to be described in the Registration Statement, the ADS Registration Statement
or the Final Prospectus that have not been filed or described as required.
(b) No information has come to our attention that causes us to believe that the Registration
Statement, as amended or supplemented (except the financial statements and schedules and other
financial data included therein, as to which we express no view) or the ADS Registration Statement,
at the time each became effective, contained an untrue statement of a material fact or omitted to
state a material fact required to be stated therein or necessary to make the statements therein, in
light of the circumstances under which they were made, not misleading.
(c) No information has come to our attention that causes us to believe that the Preliminary
Prospectus, considered together with the Free Writing Prospectus filed on August 1, 2006 (the “Free
Writing Prospectus”) pursuant to Rule 433, and the amount and the price to the public of the
Securities on the front cover of the Final Prospectus, (except in each case the financial
statements and schedules and other financial data included therein, as to which we express no
view), as of • p.m. on the date of the Underwriting Agreement and on the Closing Date, contained an
untrue statement of a material fact or omitted to state a material fact necessary in order to make
the statements therein, in the light of the circumstances under which they were made, not
misleading.
(d) No information has come to our attention that causes us to believe that the Final
Prospectus (except the financial statements and schedules and other financial data included
therein, as to which we express no view), as of the date thereof or hereof, contained or contains
an untrue statement of a material fact or omitted or omits to state a material fact required to be
stated therein or necessary to make the statements therein, in light of the circumstances under
which they were made, not misleading.
We confirm to you that the Registration Statement was declared effective under the Securities
Act of 1933, as amended (the “Securities Act”), as of • p.m. August [•], 2006, the Final Prospectus
was filed with the Commission pursuant to Rule 424(b), and (based solely upon a telephonic
confirmation from a representative of the Commission) the Registration Statement and the ADS
Registration Statement are effective under the Securities Act, and, to the best of our knowledge,
no stop order with respect thereto has been issued, and no proceeding for that purpose has been
instituted or threatened, by the Commission.
In addition, we confirm to you that, based solely on inquiry of a senior legal officer of the
Company, we know of no legal or governmental proceedings to which the Company or any of its
subsidiaries is a party that are currently pending before any adjudicative tribunal or that have
been threatened by a written communication manifesting an intention to initiate such proceedings
received by the management of the Company or by us that are required to be disclosed in the
Registration Statement or the ADS Registration Statement that are not disclosed in the Preliminary
Prospectus, the Free Writing Prospectus and the Final Prospectus.
EXHIBIT L
Form of Opinion of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ & ▇▇▇▇▇▇▇▇ LLP, German counsel for
Holding (to be delivered pursuant to section 8(c)(v) of the Underwriting Agreement)
Holding (to be delivered pursuant to section 8(c)(v) of the Underwriting Agreement)
1. The Company is a stock corporation (Aktiengesellschaft) duly registered with the
commercial register (Handelsregister) in Munich under HRB 152545 and validly existing under the
laws of Germany, with corporate power to own, lease and operate its properties and conduct its
business as described in the General Disclosure Package and the Final Prospectus and to enter into
the Underwriting Agreement, the Pricing Agreement and the Deposit Agreement and perform its
obligations thereunder.
2. Infineon is a stock corporation (Aktiengesellschaft) duly registered with the commercial
register (Handelsregister) in Munich under HRB 126492 and validly existing under the laws of
Germany, with corporate power to enter into the Underwriting Agreement and the Pricing Agreement,
and perform its obligations thereunder.
3. The Company has a registered share capital (Grundkapital), an authorized share capital
(genehmigtes Kapital) and a conditional capital (bedingtes Kapital) as described in the General
Disclosure Package and the Final Prospectus; all of the outstanding Shares of the Company
(including the New Shares) (i) are validly issued, (ii) are fully paid and non-assessable, (iii)
conform to the description thereof contained in the General Disclosure Package and the Final
Prospectus, and (iv) are not subject to any transfer restrictions under the Articles of Association
or applicable provisions of German law except as set forth in the General Disclosure Package and
the Final Prospectus.
4. The Underwriting Agreement and the Pricing Agreement have been duly authorized by each of
the Company and Infineon and duly executed by persons with corporate power to legally represent and
bind the Company and Infineon, respectively.
5. The Deposit Agreement has been duly authorized by the Company and duly executed by persons
with corporate power to legally represent and bind the Company.
6. The execution by the Company of the Underwriting Agreement, the Pricing Agreement and the
Deposit Agreement, the issue and sale of the Offered Securities to the Underwriters, the offering
of the Offered Securities pursuant to the Underwriting Agreement and the Pricing Agreement and the
performance by the Company of its respective obligations under the Underwriting Agreement, the
Pricing Agreement and the Deposit Agreement do not require any consent, approval, authorization,
order, registration of any regulatory or governmental authority of Germany.
7. The execution by Infineon of the Underwriting Agreement and the Pricing Agreement and the
performance by the Infineon of its obligations thereunder do not require any consent, approval,
authorization, order, registration of any regulatory or governmental authority of Germany.
8. The issue of the New Shares and the execution of the Underwriting Agreement, the Pricing
Agreement and the Deposit Agreement and the performance by the Company and Infineon of their
respective obligations thereunder do not conflict with or result in a violation of their respective
articles of association or applicable provisions of a German statute (Gesetz) or a regulation
(Verordnung) issued by any German governmental agency.
9. The choice of law of the State of New York as the governing law of the Underwriting
Agreement and the Deposit Agreement is legal and binding under German law and will be recognized
and given effect by German courts, except to the extent that (x) any of the provisions of New York
law applicable to such agreements are manifestly incompatible with the ordre public (within the
meaning of Article 6 of the German Introductory Act to the Civil Code (EGBGB)) or (y) there are
mandatory provisions of German law (within the meaning of Article 34 of the German
Introductory Act to the Civil Code (EGBGB)) which must be applied to the transaction covered by
such agreement irrespective of the law otherwise applicable to such agreement.
10. The submission to the jurisdiction of the federal and state courts in the Borough of
Manhattan in The City of New York and the appointment of the process agent contained in Section 19
of the Underwriting Agreement are irrevocably binding on the Company and Infineon, and the
submission to the jurisdiction of the federal and state courts in The City of New York and the
appointment of the process agent contained in Section 7.6 of the Deposit Agreement are irrevocably
binding on the Company.
11. Any final and conclusive judgment for a definite sum obtained for the recovery of amounts
due and unpaid under the Underwriting Agreement in a federal or state court in the Borough of
Manhattan in The City of New York will be recognized and enforced by the courts of Germany against
the Company and Infineon, respectively, without review of the merits, subject to the limitations of
Section 328(1) of the German Code of Civil Procedure (ZPO) which provides that a foreign judgment
will not be recognized (a) if, applying German law, the courts in the country of the court having
rendered the foreign judgment did not have jurisdiction; (b) if process has not been duly served or
has not been served in a timely fashion to permit a defense and the defendant so pleads, unless the
defendant has made an appearance; (c) if the judgment is incompatible with a judgment rendered by a
German court or a prior judgment rendered by a foreign court which is to be recognized in Germany,
or if the proceeding resulting in the judgment to be recognized is incompatible with a proceeding
previously commenced in Germany; (d) if a recognition of the judgment would be manifestly contrary
to German ordre public, in particular if the recognition would be incompatible with the basic
rights under the German Constitution; or (e) if reciprocity is not ensured.
12. Except as described in the General Disclosure Package and the Final Prospectus, all
dividends and other distributions declared and payable on the Offered Securities may, under the
laws and regulations of Germany, be paid in freely convertible and transferable legal currency of
Germany and the amount of the dividends may be transferred out of Germany. Except as described in
the General Disclosure Package and the Final Prospectus, dividends paid, and other distributions
made, to Non-German Shareholders will be free of any tax, withholding or deduction in Germany.
13. The statements set forth in the General Disclosure Package and the Final Prospectus under
the headings “Management”, “Articles of Association”, “Exchange Controls and Limitations Affecting
Shareholders”, insofar as such statements purport to summarize certain provisions of the Shares,
the Articles of Association, the German Stock Corporation Act and other relevant German law,
provide a fair summary of such provisions in all material respects.
14. The statements set forth in the General Disclosure Package and the Final Prospectus under
the heading “Taxation – German Taxation”, insofar as such statements purport to summarize certain
tax laws of Germany, provide a fair summary of the principal German tax consequences for holders of
the Offered Securities.
15. No stamp duties or registration, issue, documentary, transfer or similar taxes or duties
are payable by or on behalf of the Underwriters to Germany or any political subdivision or taxing
authority thereof or therein in connection with the sale or delivery of the Offered Securities to
the Underwriters pursuant to the Underwriting Agreement and the Pricing Agreement or the sale or
delivery of the Offered Securities to the investors as contemplated by the Underwriting Agreement
and the Pricing Agreement.
EXHIBIT M
Form of Opinion of In-House Legal Department of the Company (to be delivered
pursuant to section 8(c)(vi) of the Underwriting Agreement)
pursuant to section 8(c)(vi) of the Underwriting Agreement)
1. The Company has a registered share capital (Grundkapital), an authorized share capital
(genehmigtes Kapital) and a conditional capital (bedingtes Kapital) as described in the General
Disclosure Package and the Final Prospectus; all of the outstanding Shares of the Company
(including the New Shares) (i) are validly issued, (ii) are fully paid and non-assessable (nicht
nachschusspflichtig), (iii) conform to the description thereof contained in the General Disclosure
Package and the Final Prospectus, and (iv) are not subject to any transfer restrictions under the
Articles of Association or applicable provisions of German law except as set forth in the General
Disclosure Package and the Final Prospectus.
2. The Underwriting Agreement, the Pricing Agreement and the Deposit Agreement have been duly
authorized by the Company and have been duly executed by persons with corporate power to legally
represent and bind the Company.
3. The issue of the New Shares and the execution of the Underwriting Agreement, the Pricing
Agreement and the Deposit Agreement by the Company and the performance by the Company of its
obligations thereunder do not conflict with or result in a violation of the Articles of Association
or applicable provisions of German law or any rule, order, or regulation of any German governmental
agency or any agreement or instrument governed by German law to which the Company or any of its
subsidiaries is a party or by which the Company or any of its subsidiaries is bound or to which any
of the properties of the Company or any of its subsidiaries is subject.
4. Neither the Company nor any of its subsidiaries is in violation of its articles of
association and, to the best of our knowledge, no default (or event which, with the giving of
notice or lapse of time would be a default) has occurred in the due performance or observance of
any material obligation, material agreement, material covenant or material condition contained in
any contract, indenture, mortgage, loan agreement, note, lease or other agreement or instrument
governed by German law that is described or referred to in a General Disclosure Package and the
Final Prospectus or filed or incorporated by reference as an exhibit to a Registration Statement.
5. The statements set forth in the General Disclosure Package and the Final Prospectus under
the headings “Management”, “Articles of Association”, “Exchange Controls and Limitations Affecting
Shareholders”, insofar as such statements purport to summarize certain provisions of the Shares,
the Articles of Association, the German Stock Corporation Act and other relevant German law,
provide a fair summary of such provisions in all material respects.
6. The statements set forth in the General Disclosure Package and the Final Prospectus under
the heading “Taxation – German Taxation”, insofar as such statements purport to summarize certain
tax laws of Germany, provide a fair summary of the principal German tax consequences for holders of
the Offered Securities.
7. Neither the Company nor any of its properties have any immunity from jurisdiction of any
German court or from any legal German process (whether through service, notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under German law.
EXHIBIT N
Form of Opinion of In-House Legal Department of Infineon (to be delivered
pursuant to section 8(c)(vii) of the Underwriting Agreement)
pursuant to section 8(c)(vii) of the Underwriting Agreement)
1. The execution of the Underwriting Agreement and the Pricing Agreement by Infineon and
the performance by Infineon of its obligations thereunder do not conflict with or result in a
violation of the Articles of Association or applicable provisions of German law or any rule, order,
or regulation of any German governmental agency or any agreement or instrument governed by German
law to which Infineon or any of its subsidiaries (excluding the Company) is a party or by which
Infineon or any of its subsidiaries (excluding the Company) is bound or to which any of the
properties of Infineon or any of its subsidiaries (excluding the Company) is subject.
2. Neither Infineon nor any of its properties have any immunity from jurisdiction of any
German court or from any legal German process (whether through service, notice, attachment prior to
judgment, attachment in aid of execution, execution or otherwise) under German law.