Amended and Restated Shareholders’ Agreement – Advanced Micro Devices
EXECUTION VERSION
AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT
By and Among
ADVANCED MICRO DEVICES, INC.,
ADVANCED TECHNOLOGY INVESTMENT COMPANY LLC,
ATIC INTERNATIONAL INVESTMENT COMPANY LLC,
and
GLOBALFOUNDRIES INC.
Dated as of December 27, 2010
TABLE OF CONTENTS
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ARTICLE I |
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DEFINITIONS |
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SECTION 1.01 Certain Defined Terms |
2 |
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SECTION 1.02 Interpretation and Rules of Construction |
2 |
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ARTICLE II |
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GOVERNANCE |
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SECTION 2.01 Share Capital |
3 |
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SECTION 2.02 Voting |
3 |
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SECTION 2.03 Board of Directors |
3 |
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SECTION 2.04 Removal of Board Members; Vacancies |
4 |
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SECTION 2.05 Committees |
5 |
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SECTION 2.06 Additional Financings |
5 |
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SECTION 2.07 Certain Other Corporate Actions |
6 |
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SECTION 2.08 Acknowledgment Regarding Fiduciary Duties |
7 |
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SECTION 2.09 Delivery of Notice for General Meeting and Board Meeting |
7 |
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ARTICLE III |
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RESTRICTIONS ON TRANSFER OF SECURITIES |
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SECTION 3.01 General Rules |
7 |
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SECTION 3.02 General Restrictions on Transfer |
8 |
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SECTION 3.03 Certain Restrictions on Transfer |
8 |
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SECTION 3.04 Permitted Transferees |
9 |
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SECTION 3.05 Right of First Offer |
10 |
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SECTION 3.06 Right of Last Look |
11 |
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SECTION 3.07 Tag-Along Rights |
11 |
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SECTION 3.08 Drag-Along Rights |
13 |
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SECTION 3.09 Certain Persons to Execute Agreement |
15 |
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SECTION 3.10 Equivalent Rights |
15 |
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SECTION 3.11 Put and Call Options; Fair Market Valuation |
15 |
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ARTICLE IV |
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BOOKS AND RECORDS; FINANCIAL STATEMENTS |
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SECTION 4.01 Books and Records; Financial Statements |
17 |
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ARTICLE V |
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OTHER AGREEMENTS |
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SECTION 5.01 Discovery Change of Control Transaction |
22 |
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SECTION 5.02 New Investors to Execute Agreement Regarding Restrictions |
23 |
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SECTION 5.03 Further Assurances |
23 |
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SECTION 5.04 Confidential Information |
23 |
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SECTION 5.05 Directors’ and Officers’ Liability Insurance and Indemnification |
25 |
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SECTION 5.06 Export Controls |
25 |
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SECTION 5.07 Rights to Purchase New Shares |
26 |
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SECTION 5.08 Intel Patent Cross License Agreement |
27 |
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SECTION 5.09 Fab Build-Outs |
27 |
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ARTICLE VI |
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CERTAIN GOVERNANCE MATTERS |
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SECTION 6.01 Approval of Certain Matters by Majority Vote |
27 |
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ARTICLE VII |
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DISSOLUTION |
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SECTION 7.01 Dissolution |
28 |
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ARTICLE VIII |
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MISCELLANEOUS |
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SECTION 8.01 Termination |
30 |
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SECTION 8.02 Notices |
30 |
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SECTION 8.03 Public Announcements |
32 |
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SECTION 8.04 Severability |
32 |
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SECTION 8.05 Entire Agreement |
32 |
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SECTION 8.06 Assignment |
32 |
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SECTION 8.07 Amendment |
32 |
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SECTION 8.08 Waiver |
33 |
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SECTION 8.09 Third Party Beneficiaries |
33 |
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SECTION 8.10 Governing Law; Arbitration |
33 |
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SECTION 8.11 Currency |
35 |
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SECTION 8.12 Counterparts |
35 |
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SECTION 8.13 Expenses |
35 |
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SECTION 8.14 No Presumption Against Drafting Party |
35 |
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| EXHIBITS | ||
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Exhibit A |
Form of Joinder Agreement for Shareholder |
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Exhibit B |
Form of Indemnification Agreement |
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Exhibit C |
Form of FoundryCo Export Control Policy |
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Exhibit D |
Fab Build-Outs |
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| APPENDICES | ||
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APPENDIX A |
Definitions |
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ii
AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT
This AMENDED AND RESTATED SHAREHOLDERS’ AGREEMENT (this “Shareholders’
Agreement” and as referred to herein, this “Agreement“), dated as of
December 27, 2010 is entered into by and among Advanced Micro Devices, Inc., a
Delaware corporation (“Discovery“), Advanced Technology Investment
Company LLC, a limited liability company established under the laws of the
Emirate of Abu Dhabi and wholly-owned by the Government of Abu Dhabi
(“Oyster“), ATIC International Investment Company LLC, a limited
liability company established under the laws of the Emirate of Abu Dhabi and
wholly-owned by the Government of Abu Dhabi (“Bidco“) (each of Discovery,
Oyster and Bidco being a “Shareholder” and together the
“Shareholders“), and GLOBALFOUNDRIES Inc., an exempted company
incorporated under the laws of the Cayman Islands (“FoundryCo“).
Discovery, Oyster, Bidco and FoundryCo are sometimes referred to herein as the
“Parties“, and each individually as a “Party“.
RECITALS
WHEREAS, the Shareholders, together with their respective Subsidiaries, own
all of the Outstanding Shares of capital stock of FoundryCo.
WHEREAS, FoundryCo, Discovery and Oyster are parties to that certain
Shareholders’ Agreement, dated as of March 2, 2009 (the “Original
Agreement“);
WHEREAS, the Parties desire to amend and restate the Original Agreement as
set forth herein in order to reflect the occurrence of certain events that have
transpired since the date of the Original Agreement, including, but not limited
to, the occurrence of a Reconciliation Event (as defined in the Original
Agreement), the irrevocable waiver by Discovery of certain rights it was granted
pursuant to the Original Agreement, and the issuance by FoundryCo of Shares to
Bidco;
WHEREAS, Section 8.07 of the Original Agreement provides that the Original
Agreement may be amended by an instrument in writing signed by each Party
thereto; and
WHEREAS, each Party to the Original Agreement is executing this Shareholders’
Agreement.
NOW, THEREFORE, in consideration of the premises and the mutual agreements
and covenants hereinafter set forth, and intending to be legally bound, the
Parties hereby agree that the Original Agreement is, as of and at the date first
written above, amended and restated in its entirety to read as follows:
ARTICLE I
DEFINITIONS
SECTION 1.01 Certain Defined Terms
Capitalized terms used and not otherwise defined in this Agreement shall have
the respective meanings referred to or ascribed to such terms in Appendix A.
SECTION 1.02 Interpretation and Rules of Construction
In this Agreement, except to the extent otherwise provided or that the
context otherwise requires:
(a) when a reference is made in this Agreement to an Article, Section,
Exhibit or Schedule, such reference is to an Article or Section of, or a
Schedule or Exhibit to, this Agreement unless otherwise indicated;
(b) the table of contents and headings for this Agreement are for reference
purposes only and do not affect in any way the meaning or interpretation of this
Agreement;
(c) whenever the words “include,” “includes” or “including” are used in this
Agreement, they are deemed to be followed by the words “without limitation”;
(d) the words “hereof,” “herein” and “hereunder” and words of similar import,
when used in this Agreement, refer to this Agreement as a whole and not to any
particular provision of this Agreement;
(e) all terms defined in this Agreement have the defined meanings when used
in any certificate or other document made or delivered pursuant hereto, unless
otherwise defined therein;
(f) the definitions contained in this Agreement are applicable to the
singular as well as the plural forms of such terms;
(g) whenever the context may require, any pronoun shall include the
corresponding masculine, feminine and neuter forms;
(h) any Law defined or referred to herein or in any agreement or instrument
that is referred to herein means such Law or statute as from time to time
amended, modified or supplemented, including by succession of comparable
successor Laws, and any rules and regulations promulgated under such Laws;
(i) any reference in this Agreement to a “day” or a number of “days” (without
the explicit qualification of “Business”) shall be interpreted as a reference to
a calendar day or number of calendar days;
(j) references to a Person are also to its successors and permitted assigns;
and
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(k) the use of “or” is not intended to be exclusive unless expressly
indicated otherwise; and
(l) the phrase “the date hereof” or “as of the date of this Agreement” shall
be deemed to refer to March 2, 2009.
ARTICLE II
GOVERNANCE
SECTION 2.01 Share Capital
The share capital of FoundryCo Outstanding as of the date of this Amended and
Restated Shareholders’ Agreement is as set forth in the Register of Members. The
rights of the holders of the Ordinary Shares, the Class A Preferred Shares and
the Class B Preferred Shares are as set forth in the Memorandum and Articles of
Association.
SECTION 2.02 Voting
Subject to the provisions set forth in the Memorandum and Articles of
Association and this Agreement, each Shareholder then entitled to vote at a
general meeting of shareholders of FoundryCo shall have the right to vote all
Shares of which such Shareholder is the registered holder or for which such
Shareholder shall otherwise have the ability to control or direct the voting
thereof at any such meeting of shareholders, or execute a written resolution
with respect to all Shares of which such Shareholder is the registered holder or
for which such Shareholder shall otherwise have the ability to control or direct
the voting thereof.
SECTION 2.03 Board of Directors
(a) The number of Persons a Shareholder may designate for nomination to serve
as a Director shall be determined according to the percentage of Fully Diluted
Shares held by such Shareholder as follows: (i) a Shareholder holding 30% or
more but less than 40% of the Fully Diluted Shares shall be entitled to
designate three (3) Directors; (ii) a Shareholder holding 20% or more but less
than 30% of the Fully Diluted Shares shall be entitled to designate two (2)
Directors; (iii) a Shareholder holding 10% or more but less than 20% of the
Fully Diluted Shares shall be entitled to designate one (1) Director and (iv) a
Shareholder holding less than 10% of the Fully Diluted Shares shall have no
right pursuant to this Agreement to designate Persons for nomination to serve as
Directors. To the extent the number of Directors a Shareholder shall be entitled
to nominate is reduced pursuant to this Section 2.03(a), then, so long as
any other Shareholder, together with its Affiliates and Permitted Transferees,
owns at least a majority of the Fully Diluted Shares, such other Shareholder
shall be entitled to designate all of the remaining Directors, provided that on
behalf of Oyster, its Affiliates and Permitted Transferees, only Oyster shall be
entitled to designate Persons for nomination to serve as Directors.
Notwithstanding the foregoing, Discovery shall be entitled to designate for
nomination one (1) Person to serve as a Director until the second anniversary of
the first date on which Discovery holds less than 10% of the Fully Diluted
Shares, on which date such Person shall resign from the Board and be replaced by
a designee nominated by Oyster; provided, however, that in the event
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of a Discovery WSA Material Breach during such two-year period, any Person
nominated by Discovery and serving as a Director shall resign if requested by
Oyster, and, if requested by Oyster, the Shareholders shall vote to remove such
invitee from the Board by action of the Shareholders at a general meeting of
Shareholders or by resolutions adopted by written consent. Following the second
anniversary of the first date on which Discovery holds less than 10% of the
Fully Diluted Shares, Oyster may, at its option and in its sole discretion,
invite Discovery to designate a Person to serve another two-year term; provided,
however, that any such invitee shall resign if requested by Oyster, and, if
requested by Oyster, the Shareholders shall vote to remove such invitee from the
Board by action of the Shareholders at a general meeting of Shareholders or by
resolutions adopted by written consent.
(b) Each Shareholder shall make the nominations to which it is entitled
hereunder at least fifteen (15) days prior to each general meeting of
shareholders of FoundryCo or, if FoundryCo elects not to hold a general meeting
of shareholders, on or prior to the date on which FoundryCo’s shareholders shall
adopt a written resolution with respect to the foregoing matters. Each
Shareholder shall vote all Shares for which such Shareholder is the registered
holder or for which such Shareholder shall otherwise have the ability to control
or direct the voting thereof at any general meeting of shareholders, or adopt a
written resolution with respect to all Shares for which such Shareholder is the
registered holder or for which such Shareholder shall otherwise have the ability
to control or direct the voting thereof, in favor of electing to the Board the
nominees of Discovery and Oyster designated pursuant to Section 2.03(a).
(c) Board meetings may be called by any Board member upon three (3) days’
written notice to all other Board members. Such notice shall include a written
agenda for the subjects to be considered at such meeting. The Board may not act
on any subject not specified in such agenda except (i) after receiving written
waivers of such notice from all Board members who were not given such notice and
were not present at such meeting or (ii) upon such written consent or vote
(including for such purposes, any express recusals) as may be required for such
matters under this Agreement, the Memorandum and Articles of Association and
applicable Law, including the affirmative vote or express abstentions from
voting of those Board members who were not given such notice.
(d) The Board shall conduct meetings no less frequently than quarterly and at
such locations as a majority of the members of the Board deem appropriate.
(e) Directors may participate in a meeting of the Board by means of a
conference telephone or other communication equipment through which all persons
participating in the meeting can hear each other, which shall be provided at all
Board meetings if requested by a Director, and such participation in a meeting
shall constitute presence in person at such meeting.
SECTION 2.04 Removal of Board Members; Vacancies
(a) A Shareholder may at any time elect to remove or dismiss any member of
the Board appointed or nominated by such Shareholder pursuant to Section
2.03, with or without cause. Upon such election, each other Shareholder
shall vote all Shares for which such Shareholder is the registered holder or for
which such Shareholder shall otherwise have the
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ability to control or direct the voting thereof at any such meeting of
shareholders, or execute a written resolution with respect to all Shares for
which such Shareholder is the registered holder or for which such Shareholder
shall otherwise have the ability to control or direct the voting thereof, in
favor of the removal or dismissal of any such Board member. In the event that
the number of members of the Board nominated by a Shareholder exceeds the number
that such Shareholder has the right to nominate pursuant to Section
2.03, such Shareholder shall promptly take all appropriate action to cause
any such extra members of the Board nominated by such Shareholder to immediately
resign or alternatively shall take such measures as are necessary to remove or
dismiss such extra members.
(b) In the event that a vacancy occurs on the Board as a result of the
retirement, removal, dismissal, resignation, disability or death of a member
thereof nominated pursuant to Section 2.03, such vacancy shall be filled
by a person nominated by the Shareholder whose nominee’s retirement, removal,
dismissal, resignation, disability or death created such vacancy. Each
Shareholder shall vote all Shares of which such Shareholder is the registered
holder or for which such Shareholder shall otherwise have the ability to control
or direct the voting thereof at any meeting of shareholders, or execute a
written resolution with respect to all Shares of which such Shareholder is the
registered holder or for which such Shareholder shall otherwise have the ability
to control or direct the voting thereof, in favor of the election of any person
so nominated to fill a vacancy on the Board.
(c) Each Shareholder hereby agrees that it will not vote (or execute any
written resolutions with respect to) any Shares of which it is the registered
holder or any other Shares for which such Shareholder shall otherwise have the
ability to control or direct the voting thereof in favor of the removal,
dismissal or suspension of any member of the Board that any other Shareholder
had the right to nominate unless such other Shareholder shall have consented to
or requested such removal or dismissal in writing.
SECTION 2.05 Committees
(a) FoundryCo and each Shareholder hereby agree that the Board may establish
a Finance and Audit Committee, a Governance Committee and a People Committee.
From time to time, pursuant to the Memorandum and Articles of Association, the
Board may disestablish these committees and establish such other committees as
the board may determine to be in the best interests of the Company.
(b) FoundryCo and each Shareholder hereby agree that, in addition to any
other committees formed by the Board from time to time, the Board may establish
a security committee which shall oversee FoundryCo’s compliance with any
security and compliance-related commitments to the U.S. government as well as
the overall security of FoundryCo, including the protection of FoundryCo’s
technology and compliance with U.S. export control requirements.
SECTION 2.06 Additional Financings.
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FoundryCo shall seek additional financing, and the Shareholders shall make
additional capital contributions, in accordance with the terms and conditions
set forth in the Funding Agreement.
SECTION 2.07 Certain Other Corporate Actions
(a) At all times, subject to Section 2.07(b) and Section
6.01(b), FoundryCo shall not, and shall cause its Subsidiaries not to, take
(either directly or by amendment, merger, consolidation, reclassification or
otherwise) (and each Shareholder agrees to vote all Shares for which such
Shareholder is the registered holder or for which such Shareholder shall
otherwise have the ability to control or direct the voting thereof at any
meeting of shareholders against (and to refuse to execute a written resolution
that seeks the authority to approve)) any action not in the ordinary course of
business, unless the Board shall first have approved such action by Majority
Vote; provided, however, that the Board may by resolution
require prior notification or the Board’s prior approval for any actions to be
taken in the ordinary course of business; provided further, that in the
event a matter which would otherwise require approval under this Section
2.07 has been expressly included in either the Five-Year Capital Plan or the
Annual Business Plan, which has been approved by the Board or the Shareholders
in accordance with this Agreement and the Funding Agreement, as applicable, no
further Board approval shall be required hereunder.
(b) In addition to such authorizations or approvals by the Board or
shareholders as may be required by applicable Law, the Memorandum and Articles
of Association or the constituent documents of each of FoundryCo’s Subsidiaries
or the other provisions of this Agreement, and subject to Section 6.01(b)
and Section 7.01(b)(i), FoundryCo shall not, and shall cause its
Subsidiaries not to, take (either directly or by amendment, merger,
consolidation, reclassification or otherwise) (and each Shareholder agrees to
vote all Shares for which such Shareholder is the registered holder or for which
such Shareholder shall otherwise have the ability to control or direct the
voting thereof at any meeting of shareholders against (and to refuse to execute
a written resolution that seeks the authority to approve)) any of the following
actions, unless all of the members of the Board shall have first approved such
action:
(i) implementing material changes in the purpose or scope of FoundryCo’s
activities or engaging in any material activity unrelated to FoundryCo’s
business that materially adversely affects FoundryCo’s ability to perform its
obligations to Discovery under the Wafer Supply Agreement;
(ii) the approval of any material amendment, modification or revision to the
Five-Year Capital Plan;
(iii) the approval of any Annual Business Plan or any material amendment,
modification or revision thereto; provided that the Board may approve
by Majority Vote any such approval, amendment, modification or revision that
does not materially adversely affect FoundryCo’s ability to perform its
obligations to Discovery under the Wafer Supply Agreement;
(iv) the amendment of any of the Transaction Documents;
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(v) the entering into of any transaction, agreement or arrangement between
FoundryCo or any of its Subsidiaries, on the one hand, and any Officer,
Director, Affiliate or Shareholder, on the other hand, (other than the
transactions provided for in or contemplated by the Transaction Documents)
unless the total consideration expected to be paid or received by FoundryCo and
its Subsidiaries taken as whole as a result of such transaction or proposed
change or waiver shall not exceed $25 million; and
(vi) the entering into of any contract, arrangement, understanding or other
similar agreement with respect to any of the foregoing in subsections (i) – (v).
(c) In the event of an inconsistency between FoundryCo’s Memorandum and
Articles of Association and this Agreement, the Shareholders shall exercise
their voting rights to amend the Memorandum and Articles of Association to
remove such inconsistency.
SECTION 2.08 Acknowledgment Regarding Fiduciary Duties
Except as otherwise expressly set forth in this Agreement and the other
Transaction Documents, this Agreement is not intended to, and does not, create
or impose any fiduciary duty on any of the Shareholders (in their capacity as a
holder of Shares) or their respective Affiliates.
SECTION 2.09 Delivery of Notice for General Meeting and Board Meeting
In addition to any other manner of delivery permitted by the Memorandum and
Articles of Association, each Shareholder consents to the delivery of notices of
any general meeting of shareholders of FoundryCo by electronic mail at the
address and upon the terms set forth in Section 8.02 for such Party.
Notwithstanding any provision of this Agreement to the contrary, each
Shareholder may withdraw such consent or change the applicable electronic mail
address for purposes of such Shareholder notices at any time upon written notice
to FoundryCo without the approval of any other Party hereto.
ARTICLE III
RESTRICTIONS ON TRANSFER OF SECURITIES
SECTION 3.01 General Rules
(a) For purposes of this Article III, Securities held by Discovery
shall include any Securities held by any Permitted Transferees or any other
transferees (other than a transferee pursuant to a Public Sale) of Discovery and
Securities held by Oyster shall include any Securities held by any Permitted
Transferees or any other transferees (other than a transferee pursuant to a
Public Sale) of Oyster, and any offers or acceptances to purchase or sell
Securities made to or by Discovery or Oyster shall have been deemed to have been
made to or by the respective Permitted Transferees or any other transferees
(other than a transferee pursuant to a Public Sale) of Discovery or Oyster.
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(b) No Shareholder shall, directly or indirectly, make or solicit any Sale of
Securities, or create, incur, solicit or assume any Encumbrance with respect to
any Securities, except in compliance with this Agreement and any applicable
securities laws.
(c) Each Shareholder shall vote all Shares for which such Shareholder is the
registered holder or for which such Shareholder shall otherwise have the ability
to control or direct the voting thereof at any such meeting of shareholders, or
execute a written resolution with respect to all Shares for which such
Shareholder is the registered holder or for which Shareholder shall otherwise
have the ability to control or direct the voting thereof, in favor of any
resolution to procure any transfer in compliance with the provisions of this
Article III and to prohibit any transfer not in compliance with this
Article III. The Shareholders shall cause the members of the Board to
vote in accordance with the provisions of this Article III.
(d) Immediately prior to the IPO, the Convertible Notes shall convert into
Class A Preferred Shares or Class B Preferred Shares, as applicable, and all
Preferred Shares shall convert into Ordinary Shares, in each case pursuant to
the terms thereof.
SECTION 3.02 General Restrictions on Transfer
Each Shareholder agrees that, without the consent of the other Shareholder,
it will not participate in any Sale of Securities if (a) such Sale of Securities
is made to Intel Corporation (“Intel“), or any Affiliates of Intel or (b)
such Sale of Securities is made to any competitor of FoundryCo.
SECTION 3.03 Certain Restrictions on Transfer
(a) Each Shareholder agrees that, prior to the earliest of (i) March 2, 2019,
(ii) such time as the Abu Dhabi cluster is operational with a steady-state yield
and volumes of at least seventy-five thousand (75,000) Wafer Starts on Qualified
Processes per month, as set forth in the Wafer Supply Agreement, or (iii) the
termination of the Transition Period under the Funding Agreement (the
“Restricted Period“), it will not, directly or indirectly, make any Sale
of Securities, or create, incur or assume any Encumbrance with respect to any
Securities held by such Shareholder, or enter into any other transaction
pursuant to which it or any of its Permitted Transferees shall receive any
consideration in cash or other property in connection with such Securities
(other than as a distribution thereon by FoundryCo), other than:
(i) with the prior written consent of the other Shareholder;
(ii) any Sale of Securities to (A) a Permitted Transferee in compliance with
the provisions of this Article III, or (B) the other Shareholder;
(iii) each of Discovery and Oyster (and any of their Permitted Transferees
holding Shares) shall be entitled to sell up to 25% of its Fully Diluted Shares
(measured at the time of the IPO) in the IPO; provided,
however, that any Securities to be included on behalf of FoundryCo
shall be given first priority to be included in the IPO and as among the
Shareholders wishing to sell Securities, the number of Securities to be included
in the IPO shall be allocated pro rata based on the amount of Securities each
Shareholder (and its Permitted Transferees)
8
proposes to sell; provided further, that any Securities to be
included in the IPO on behalf of Discovery and Oyster and their respective
Permitted Transferees shall be given priority over any other Shareholder or any
employees of FoundryCo or any of its Subsidiaries;
(iv) in each year following the IPO, each of Discovery and Oyster (and any of
their Permitted Transferees holding Shares) shall be entitled to sell up to an
equal amount of its Fully Diluted Shares as permitted under Section
3.03(a)(iii) pursuant to (A) a Public Offering, or (B) an offering exempt
from registration pursuant to Rule 144 under the Securities Act, or similar
non-U.S. applicable Law, if any, provided, however, that any Securities
to be included on behalf of FoundryCo shall be given first priority to be
included in any such Public Offering and as among the Shareholders wishing to
sell Securities, the number of Securities to be included in any such Public
Offering shall be allocated pro rata based on the amount of Securities each
Shareholder (and its Permitted Transferees) proposes to sell; provided
further, that any Securities to be included in any such Public Offering on
behalf of Discovery and Oyster and their respective Permitted Transferees shall
be given priority over any other Shareholder or any employees of FoundryCo or
any of its Subsidiaries;
(v) in each year following the IPO, including the year of the IPO, (A) with
respect to Discovery, to pledge up to an equal amount of Fully Diluted Shares as
permitted for sale under Section 3.03(a)(iii), and (B) with respect to
Oyster, to pledge up to all of its Fully Diluted Shares; or
(vi) any Sale of Securities by Oyster or its Permitted Transferees pursuant
to Section 5.01.
(b) Each Shareholder agrees that, following the end of the Restricted Period,
it will not, directly or indirectly, make any Sale of Securities, or create,
incur or assume any Encumbrance with respect to any Securities held by such
Shareholder, or enter into any other transaction pursuant to which it or any of
its Permitted Transferees shall receive any consideration in cash or other
property in connection with such Securities (other than as a distribution
thereon by FoundryCo) other than (i) pursuant to the exceptions set forth in
Section 3.03(a) above or (ii) any Sale of Securities for cash or readily
marketable securities that is made in compliance with the procedures, and
subject to the limitations, set forth in Sections 3.05, 3.06,
3.07 and 3.08.
SECTION 3.04 Permitted Transferees
(a) Notwithstanding anything to the contrary contained herein, any Sale of
Securities may be made to a Permitted Transferee. However, no Sale of Securities
to a Permitted Transferee shall be effective if a purpose or effect of such
transfer shall have been to circumvent the provisions of this Article
III. Each Shareholder shall remain responsible for the performance of this
Agreement by each Permitted Transferee of such Shareholder to which Securities
are transferred. If any Permitted Transferee to which Securities are transferred
in accordance with this Article III ceases to be a Permitted Transferee
of the Shareholder from which or whom it
9
acquired such Securities, such Person shall reconvey such Securities to such
transferring Shareholder immediately before such Person ceases to be a Permitted
Transferee of such transferring Shareholder so long as such Person knows of its
upcoming change of status immediately prior thereto. If such change of status is
not known until after its occurrence, the former Permitted Transferee shall make
such transfer to such transferring Shareholder as soon as practicable after the
former Permitted Transferee receives notice thereof.
(b) Each Permitted Transferee shall enter into a joinder agreement pursuant
to Section 3.09(a).
(c) Notwithstanding anything to the contrary contained herein, in
substitution of Bidco’s pledge of shares of GFS under the GFS Share Pledge
Agreement, made to secure the performance of Oyster’s obligations under the ATIC
Facility, Oyster and Bidco may make a bona fide pledge of Securities to secure
the performance by Oyster of its obligations under the ATIC Facility, and such
secured parties shall become Permitted Transferees hereunder.
SECTION 3.05 Right of First Offer
(a) The provisions of this Section 3.05 shall survive the IPO.
(b) Following the end of the Restricted Period, except as provided for in
Section 3.03(b), if at any time during the term of this Agreement, a
Shareholder (the “Prospective Seller“) desires to effect a Sale of
Securities to a Third Party or Third Parties, the Prospective Seller shall
deliver a written notice (an “Offer Notice“) thereof to FoundryCo and the
other Shareholder (the “Other Shareholder“), which notice shall set forth
all of the material terms and conditions, including the number of Securities
proposed to be sold (the “Offered Securities“) and the proposed purchase
price per Share (the “Offer Price“) (which shall be payable solely in
cash or freely marketable securities in one lump sum payment), on which the
Prospective Seller offers to sell the Offered Securities to FoundryCo and the
Other Shareholder (the “Offer“).
(c) The receipt of an Offer Notice by the Other Shareholder shall constitute
an offer by the Prospective Seller to sell to the Other Shareholder. Such Offer
shall be irrevocable for thirty (30) days (the “Offer Period“) after
receipt of such Offer Notice by the Other Shareholder. During the Offer Period,
the Other Shareholder shall have the right to accept such offer as to any or all
of the Offered Securities by giving a written notice of acceptance (the
“Notice of Acceptance“) to the Prospective Seller prior to the expiration
of the Offer Period, which notice shall specify the number of Offered Securities
to be purchased by the Other Shareholder. Alternatively, if the threshold set
forth in Section 3.07(b) is met, the Other Shareholder shall have the
right and option to notify the Prospective Seller of the Other Shareholder’s
interest in selling along with the Prospective Seller to a Third Party (the
“Tag Along Offer“) pursuant to Section 3.07.
(d) The consummation of any such purchase by and sale to the Other
Shareholder shall take place not later than ten (10) days after the expiration
of the Offer Period (unless a later date shall be required under the HSR Act or
other applicable Law). Upon the consummation of such purchase and sale, the
Prospective Seller shall (i) deliver to the Other
10
Shareholder the Securities purchased, free and clear of any Encumbrances
(other than this Agreement and applicable Law) and (ii) assign all of its rights
and obligations under this Agreement with respect to such Securities against
payment of the purchase price contained in the Offer.
(e) In the event that (i) the Other Shareholder shall not have elected during
the Offer Period to purchase all the Offered Securities or (ii) the Other
Shareholder shall have failed to consummate a purchase of Securities with
respect to which a Notice of Acceptance was given, the Prospective Seller shall
not be obligated to sell any Offered Securities to the Other Shareholder and,
subject to its obligations under Section 3.06 and 3.07, shall have
the right to sell the Offered Securities (the “Unaccepted Securities“) to
a Third Party or Third Parties so long as all the Unaccepted Securities are sold
or otherwise disposed of by the Prospective Seller (A) within ninety (90) days
after the expiration of the Offer Period or such longer period (up to the
maximum period permitted by applicable Law) as would be required under the HSR
Act or other applicable Law, and (B) at a price not less than the Offer Price
included in the Offer Notice.
SECTION 3.06 Right of Last Look
(a) The provisions of this Section 3.06 shall survive the IPO.
(b) Following the end of the Restricted Period, except as provided for in
Section 3.03(b), a Prospective Seller shall not consummate any Sale of
Securities to a Third Party without offering in writing at least ten (10)
Business Days prior to the consummation of the Sale of Securities, the Other
Shareholder the right to acquire the Offered Securities for the purchase price
set forth in this Section 3.06 and otherwise on the terms and conditions
offered by the Third Party (the “Last Look Notice“). The Last Look Notice
shall contain (i) the name and address of the Third Party and any Person who
controls such Third Party, (ii) the proposed amount and form of consideration to
be delivered by the Third Party in the transaction and a calculation of the
purchase price applicable to the Other Shareholder, (iii) the material terms of
such transaction, and (iv) the proposed closing date. The Other Shareholder
shall have five (5) Business Days to notify the Prospective Seller of its
intentions to purchase the Securities on the terms and conditions set forth
above (the “Last Look Acceptance Notice“);
(c) To the extent that the Other Shareholder elects not to exercise its
purchase right under this Section 3.06 or does not timely deliver a Last
Look Acceptance Notice, the Prospective Seller shall be permitted to consummate
its transaction with the Third Party not later than five (5) Business Days after
the expiration of the period of time for the Other Shareholder to deliver the
Last Look Acceptance Notice. Alternatively, if the Other Shareholder timely
delivers the Last Look Acceptance Notice, the Other Shareholder must consummate
the acquisition of Securities on or before the proposed closing date identified
in the Last Look Notice.
SECTION 3.07 Tag-Along Rights
(a) The provisions of this Section 3.07 shall terminate upon the IPO.
(b) (i) Following the end of the Restricted Period, except as provided for in
Section 3.03(b), no Prospective Seller shall sell any Offered Securities
held by it, if such Offered Securities constitute more than 10% of the then
Fully Diluted Shares, unless each Other
11
Shareholder is provided the Offer Notice set forth in Section 3.05
and is offered the right and option to sell pursuant to such disposition up to
the same percentage of Securities held by it as the percentage of Securities
held by the Prospective Seller as the Prospective Seller proposes to sell.
(ii) The Other Shareholder desiring to exercise such option shall, prior to
the expiration of the Offer Period, provide the Prospective Seller with a
written notice specifying the number of Securities as to which such Other
Shareholder (the “Tag-Along Offered Securities“) has an interest in
selling pursuant to the Tag-Along Offer (a “Tag-Along Notice of
Interest“), and shall cooperate in such manner as the Prospective Seller
shall reasonably request to permit the sale of such Securities pursuant to the
Tag-Along Offer.
(iii) If the Third Party is unwilling to buy all of the Offered Securities,
then the allocation of the Securities to be sold in the Tag-Along Offer shall be
made pro rata based on the number of Securities each Shareholder proposes to
sell.
(iv) Promptly after the consummation of the Sale of Securities of the
Prospective Seller and the Other Shareholder to the Third Party or Parties
pursuant to the Tag-Along Offer, the Prospective Seller shall remit to the Other
Shareholder the total sales price of the Securities of the Other Shareholder
sold pursuant thereto less the pro rata portion (based on sales price
of Securities being sold by the respective parties) of the out-of-pocket
expenses (including reasonable legal expenses) incurred by the Prospective
Seller in connection with such sale; provided, however, that
the Other Shareholder shall not be liable for any such expenses in the event
that such sale is not consummated.
(v) If at the end of the Offer Period the Other Shareholder shall not have
given a Tag-Along Notice of Interest, the Other Shareholder shall be deemed to
have waived its rights under this Section 3.07 with respect to the sale
pursuant to the Tag-Along Offer with respect to which a Tag-Along Notice of
Interest shall not have been given.
(vi) If, at the end of the twenty (20)-day period following the giving of the
Offer Notice (or such later date as is required under the HSR Act or other
applicable Law), the Prospective Seller has not completed the sale of all the
Tag-Along Offered Securities made available to the Prospective Seller pursuant
to Section 3.07(b)(ii), the Prospective Seller shall return to the Other
Shareholder all certificates and documents provided to the Prospective Seller by
the Other Shareholder pursuant to Section 3.07(b)(ii);
provided, however, that the Prospective Seller shall not be
relieved of its obligation to sell the Securities of the Other Shareholder in
the event that such sale is ultimately completed with such Third Party or
Parties.
(vii) Except as expressly provided in this Section 3.07, no
Prospective Seller shall have any obligation to the Other Shareholder with
respect to the sale
12
of any Securities held by the Other Shareholder in connection with this
Section 3.07. No Other Shareholder shall be entitled to sell and transfer
Securities directly to any Third Party pursuant to a Tag-Along Offer (it being
understood that all such sales shall be made only on the terms and pursuant to
the procedures set forth in this Section 3.07).
SECTION 3.08 Drag-Along Rights
(a) The provisions of this Section 3.08 shall terminate upon the IPO.
(b) Following the end of the Restricted Period, except as provided for in
Section 3.03(b), in the event that any Shareholder that, together with
its Permitted Transferees, holds at least 75% of the Fully Diluted Shares (the
“Dragging-Along Shareholder“) proposes to sell all of its Securities in a
bona fide transaction to a Third Party, then the Dragging-Along Shareholder
shall have the unconditional right to effect the sale of all (but not less than
all) of such Securities in either a private or public sale, at the option of the
Dragging-Along Shareholder (such transaction, the “Drag-Along
Transaction“). In such event, the Dragging-Along Shareholder may, at its
option, require the other Shareholder (the “Dragged-Along Shareholder“)
to sell all of the Securities then held by or registered in the names of such
Dragged-Along Shareholder and its Permitted Transferees (“Drag-Along Offered
Securities“) to the Third Party or Parties in the Drag-Along Transaction for
the same consideration and otherwise on the same terms and conditions upon which
the Dragging-Along Shareholder sells its Securities, subject to Section
3.08(f). Each Shareholder hereby agrees that it will vote in favor of (or
execute any written resolutions with respect to) any transaction required by
this Section 3.08(b) and to take such further actions as may be
reasonably required to effect such transaction, in each case, to the extent not
consistent with this Agreement. In the event of a Drag-Along Transaction, none
of the provisions of Sections 3.02(b), 3.05, 3.06, and
3.07 shall apply.
(c) The Dragging-Along Shareholder shall provide a written notice (the
“Drag-Along Notice“) of such Drag-Along Transaction (the “Drag-Along
Offer“) to the Dragged-Along Shareholder not later than thirty (30) days
prior to the consummation of the sale contemplated by the Drag-Along Offer. The
Drag-Along Notice shall contain written notice of the exercise of the
Dragging-Along Shareholder’s rights pursuant to Section 3.08(b), and
shall identify the Third Party or Parties making the Drag-Along Offer, the
consideration offered per Share and all other material terms and conditions of
the Drag-Along Offer. Within twenty (20) days following the date the Drag-Along
Notice is given, the Dragged-Along Shareholder shall cooperate in such manner as
the Dragging-Along Shareholder shall reasonably request to permit the sale of
the Securities requested from each such Dragged-Along Shareholder pursuant to
the Drag-Along Offer, and shall enter into a sale agreement with respect to the
sale of the Securities of the Dragging-Along Shareholder and the Dragged-Along
Shareholder pursuant to the Drag-Along Offer and shall reasonably cooperate in
the transfer of these Securities to the relevant Third Party;
provided, however, that the Dragged-Along Shareholder shall
not be required to make any representations and warranties in such sale
agreement other than with respect to the Dragged-Along Shareholder’s authority
to enter into the sale agreement and ownership of the Securities to be sold by
the Dragged-Along Shareholder. The Company shall in connection with the transfer
of the relevant Securities to the relevant Third Party request the Board to
adopt a
13
resolution to grant the approval for such transfer of Securities pursuant to
the Memorandum and Articles of Association.
(d) Promptly after the consummation of the sale of Securities pursuant to the
Drag-Along Offer and receipt of consideration therefor, the Dragging-Along
Shareholder shall remit to the Dragged-Along Shareholder the sales proceeds
received by the Dragging-Along Shareholders of the Securities of such
Dragged-Along Shareholder sold pursuant thereto less a pro rata portion of the
out-of-pocket expenses (including reasonable legal expenses) incurred by the
Dragging-Along Shareholder in connection with such sale; provided,
however, that the Dragged-Along Shareholder shall not be liable for any
such expenses in the event that such sale is not consummated.
(e) If, at the end of the sixty (60)-day period following the giving of the
Drag-Along Notice, the Dragging-Along Shareholder has not completed the sale of
all its Securities and the Securities of the Dragged-Along Shareholder pursuant
to Section 3.08(b), the Dragging-Along Shareholder shall return to the
Dragged-Along Shareholder such documents as it shall reasonably request, and the
Dragged-Along Shareholder shall no longer be obligated to cooperate in such sale
and transfer pursuant to Section 3.08(b) with respect to such Drag-Along
Offer.
(f) Except as expressly provided in Section 3.08(d), the
Dragging-Along Shareholder shall have no obligation to the Dragged-Along
Shareholder with respect to the contemplated sale of any Securities held by such
Dragged-Along Shareholder in connection with this Section 3.08. The
Dragging-Along Shareholder shall have no obligation to the Dragged-Along
Shareholder to sell and transfer any Drag-Along Offered Securities pursuant to
this Section 3.08 or as a result of any decision by the Dragging-Along
Shareholder not to accept or consummate any Drag-Along Offer (it being
understood that any and all such decisions shall be made by the Dragging-Along
Shareholder in its sole discretion). No Dragged-Along Shareholder shall be
entitled to sell and transfer Securities directly to any Third Party pursuant to
a Drag-Along Offer (it being understood that all such sales shall be made only
on the terms and pursuant to the procedures set forth in this Section
3.08).
(g) Upon the consummation of a Drag-Along Transaction, all of the holders of
the Securities shall receive the same form and amount of consideration per
Security, respectively, taking into account and giving effect to any accrued
interest, conversion ratios, liquidation preference and other provisions
relating to the nature of consideration, to which the holders of Securities are
entitled in accordance with the terms thereof in effect immediately prior to the
Drag-Along Transaction, and if any holders of Preferred Shares or Ordinary
Shares are given an option as to the form and amount of consideration to be
received, all holders shall be given the same option. In addition, such
Shareholder shall not be required to accept consideration in a Drag-Along
Transaction other than cash and/or freely-tradable equity securities registered
under the Exchange Act and listed on the New York Stock Exchange or NASDAQ Stock
Market and/or any other securities exchange or automated quotation system of
similar caliber in the United States or elsewhere.
14
SECTION 3.09 Certain Persons to Execute Agreement
(a) Each Shareholder agrees that it will not, directly or indirectly, make
any Sale of Securities to any Permitted Transferee or otherwise unless, prior to
the consummation of any such Sale of Securities, the Person to whom such Sale of
Securities is proposed to be made (a “Prospective Transferee“) executes
and delivers to FoundryCo and each Shareholder an agreement in the form attached
hereto as Exhibit A whereby such Prospective Transferee confirms that,
with respect to the Securities that are the subject of such Sale of Securities,
it shall be deemed to be a “Shareholder” for all purposes of this Agreement and
agrees to be bound by all the terms of this Agreement as a “Shareholder”;
provided, however, that such Prospective Transferee shall not
be entitled to the benefits of this Agreement until such time as such Sale of
Securities to such Person has been completed.
(b) The provisions of this Section 3.09 shall not apply to any Sale of
Securities pursuant to a Public Offering or, following the IPO, pursuant to an
offering exempt from registration pursuant to Rule 144 under the Securities Act,
or similar non-U.S. applicable Law (each such Sale of Securities, a “Public
Sale“).
SECTION 3.10 Equivalent Rights
The Shareholders acknowledge that the Board may determine that it is in the
best interests of FoundryCo to effect its IPO on a securities exchange located
outside of the United States. The Shareholders and FoundryCo agree that prior to
any such IPO each of them shall use their commercially reasonable efforts to
amend this Agreement as may be necessary to ensure that the rights of the
Shareholders with respect to any Public Offerings in and following the IPO and
the sale of Securities in any such Public Offerings are at least equivalent to
the rights set forth in this Agreement in respect of sales of Securities in the
United States.
SECTION 3.11 Put and Call Options; Fair Market Valuation
(a) Unless otherwise agreed by the Parties, in the event that a Shareholder’s
option pursuant to the terms of this Agreement or the Funding Agreement is
triggered (i) to put any or all of the Securities held by such Shareholder and
its Permitted Transferees to the other Shareholder, or (ii) to purchase any or
all of the Securities held by the other Shareholder and its Permitted
Transferees, such Shareholder shall have thirty (30) days from the date that it
receives notification of the triggering event by the other Shareholder to
deliver a written notice (the “Election Notice“) to the other Shareholder
electing to exercise such put or call option, as appropriate, and if not so
exercised within such thirty (30)-day period, such option shall lapse.
(b) Each Shareholder hereby covenants and agrees that where the provisions of
this Agreement and the Funding Agreement indicate that the “Fair Market Value”
of the Shares of FoundryCo is to be determined, such Shareholder will take all
actions reasonably necessary to determine the Fair Market Value of such Shares
in accordance with this Section 3.11(b).
(i) The Shareholder wishing to exercise its put or call option pursuant to
Section 3.11(a) shall designate an investment banking firm of recognized
international standing within fifteen (15) days of the date of the delivery of
the
15
Election Notice to determine the Fair Market Value of such Shares. The other
Shareholder shall also designate an investment banking firm of recognized
international standing within the same time period. Within thirty (30) days
after appointment of both investment banking firms, each investment banking firm
shall determine its initial view as to the Fair Market Value of such Shares and
shall consult with one another with respect thereto. Within forty-five (45) days
after appointment of both investment banking firms, each investment banking firm
shall have determined its final view as to the Fair Market Value of such Shares
and shall have delivered such final view to the Shareholders.
(ii) If the difference between the higher of the respective final views of
the two investment banking firms and the lower of the respective final views of
the two investment banking firms is less than 10% of the higher Fair Market
Value, then the Fair Market Value determined shall be the average of those two
views.
(iii) If the difference between the higher Fair Market Value and the lower
Fair Market Value is equal to or greater than 10%, then the Shareholders shall
instruct the investment banking firms to jointly designate a third investment
banking firm of recognized international standing (the “Mutually Designated
Appraiser“). The Mutually Designated Appraiser shall be designated within
ten (10) days after the delivery of the final views of the investment banking
firms pursuant to Section 3.11(b)(i) and shall within fifteen (15) days
of such designation determine its final view as to the Fair Market Value. The
final Fair Market Value determination shall be the Fair Market Value of the
Mutually Designated Appraiser.
(iv) Notwithstanding the foregoing, in the event a Shareholder does not
appoint an investment banking firm within the time periods specified above, such
Shareholder shall have waived its rights to appoint an investment firm and
determination of the Fair Market Value shall be made solely by the Shareholder
who did appoint an investment banking firm.
(c) FoundryCo shall provide reasonable access to each of the designated
investment banking firms to members of management of FoundryCo and its
Subsidiaries and to the books and records of FoundryCo and its Subsidiaries in
order to allow such investment banking firms to conduct due diligence
examinations in scope and duration as are customary in valuations of this kind.
Each of the Shareholders and any Permitted Transferees agree to cooperate with
each of the investment banking firms to provide such information as may be
reasonably requested. Costs of the appraisals shall be borne equally by the
Shareholders.
16
ARTICLE IV
BOOKS AND RECORDS; FINANCIAL STATEMENTS
SECTION 4.01 Books and Records; Financial Statements
(a) At all times during the continuance of FoundryCo, FoundryCo shall prepare
and maintain separate books of account for FoundryCo and its Subsidiaries that
shall show a true and accurate record of all assets, all liabilities, all
equity, all investments by owners, all distributions to owners, all
comprehensive income, all revenues, all expenses, all gains and all losses,
pertaining to FoundryCo or any of its Subsidiaries in accordance with either
IFRS or GAAP consistently applied. Such books of account, together with a
certified copy of this Agreement and of the constituent documents of FoundryCo,
shall at all times be maintained at the principal place of business of
FoundryCo. The books of account and the records of FoundryCo and its
Subsidiaries shall be examined by and reported upon as of the end of each fiscal
year by an internationally recognized independent registered public accounting
firm (the “Auditors“). The Auditors shall be nominated by Oyster. Each
Shareholder shall, regarding the appointment of the Auditors, vote its shares in
accordance with the proposal of the Board pursuant to the foregoing sentence.
(b) Starting with fiscal year 2010 and for as long as Oyster is required to
record FoundryCo’s financial results into Oyster’s books in accordance with
IFRS, FoundryCo shall provide Oyster the following financial information
examined by and reported upon by the Auditors at the times hereinafter set
forth:
(i) As soon as available and in any event within sixty (60) days after the
end of each fiscal year, the following financial statements, prepared in
accordance with IFRS and consistent with Oyster’s IFRS accounting policies (it
being understood that FoundryCo, and not the Auditors, shall ensure that such
financial information is consistent with Oyster’s IFRS accounting policies):
|
(A) |
the consolidated balance sheet of FoundryCo and its Subsidiaries as of the |
|
(B) |
at Oyster’s election, either the consolidated statement of shareholders’ |
|
(C) |
a consolidated statement of operations for FoundryCo and its Subsidiaries for |
|
(D) |
a consolidated statement of cash flows for FoundryCo and its Subsidiaries for |
|
(E) |
other data and representations as may be necessary to allow |
17
|
requirements of the Government of Abu Dhabi Accountability Authority or |
(c) For as long as Discovery is required to use the equity method of
accounting to account for FoundryCo’s financial results, the following financial
information, in reasonable detail and prepared in accordance with GAAP, shall be
transmitted by FoundryCo to Discovery (with a copy to Oyster) to permit
Discovery to timely account for its share of FoundryCo’s operating results and
to prepare for its quarterly earnings releases and regulatory filings:
(i) As soon as available and in any event within six (6) Business Days after
the end of each fiscal quarter (or such longer time as the Shareholders and
FoundryCo may agree to account for system changes or other events that may
affect FoundryCo’s ability to close its books within this time period), relevant
information as may reasonably be requested by Discovery necessary for Discovery
to record its share of FoundryCo’s operating results and to prepare and discuss
its quarterly earnings press release in a manner consistent with Discovery’s
prior practices and disclosures.
(ii) As soon as available and in any event within sixteen (16) Business Days
after the end of each fiscal quarter (or such longer time as the Shareholders
and FoundryCo may agree to account for system changes or other events that may
affect FoundryCo’s ability to close its books within this time period), the
consolidated summary balance sheet and consolidated income statement for
FoundryCo and its Subsidiaries for such fiscal quarter, and other financial
disclosures necessary for the preparation of Discovery’s Form 10-Q in compliance
with SEC rules and regulations;
(iii) As soon as available and in any event within twenty (20) Business Days
after the end of each fiscal year (or such longer time as the Shareholders and
FoundryCo may agree to account for system changes or other events that may
affect FoundryCo’s ability to close its books within this time period), the
summary consolidated balance sheet and consolidated income statement for
FoundryCo and its Subsidiaries such fiscal year, and other financial disclosures
necessary for the preparation of Discovery’s Form 10-K in compliance with SEC
rules and regulations;
(iv) Other data and representations as may be necessary to allow Discovery to
timely comply with SEC rules and regulations, GAAP and the reasonable
requirements of Discovery’s auditors; provided, however, that
FoundryCo shall not be obligated to provide to Discovery the individual names,
cost or pricing information for any of FoundryCo’s customers, vendors or
accounts, unless Discovery is required to disclose such information by SEC rules
and regulations;
18
(v) As soon as available and in any event within the date that is three (3)
Business Days prior to the deadline for the filing of Discovery’s Annual Report
on Form 10-K with the SEC (or such longer time as the Shareholders and FoundryCo
may agree to account for system changes or other events that may affect
FoundryCo’s ability to close its books within this time period), the following
financial statements prepared in accordance with SEC Regulation S-X, examined by
and reported upon by the Auditors:
|
(A) |
the consolidated balance sheet and statement of shareholders’ equity of |
|
(B) |
a consolidated statement of operations for FoundryCo and its Subsidiaries for |
|
(C) |
a consolidated statement of cash flows for FoundryCo and its Subsidiaries for |
|
(D) |
relevant footnotes as required by SEC Regulation S-X. |
The Shareholders acknowledge that the audited annual financial statements set
forth in (v) above may be attached as an exhibit to Discovery’s Form 10-K, as
required by the SEC rules and regulations for unconsolidated significant equity
investees.
(d) The following financial information, in reasonable detail, shall be
transmitted by FoundryCo to each member of the Board and each Shareholder at the
times hereinafter set forth:
(i) As soon as available and in any event within thirty (30) days after the
end of each fiscal quarter, the Cumulative Revenue and Cumulative Gross Margin
(each as defined in the Funding Agreement);
(ii) The proposed Annual Business Plan for the next fiscal year in accordance
with the schedule set forth in the Funding Agreement;
(iii) Within sixteen (16) Business Days after the end of each fiscal quarter
(or such longer time as the Shareholders and FoundryCo may agree to account for
system changes or other events that may affect FoundryCo’s ability to close its
books within this time period), the consolidated summary balance sheet and
consolidated income statement for FoundryCo and its Subsidiaries for such fiscal
quarter prepared under IFRS or GAAP pursuant to this Agreement (notwithstanding
any other provision herein, each Shareholder shall have reasonable access to
FoundryCo management following delivery of the information set forth in this
clause (iii) with respect to general inquiries related to such information);
19
(iv) Such annual financial statements that FoundryCo may prepare under IFRS
or GAAP pursuant to this Agreement, as soon as possible following the time that
such annual financial statements have been examined by and reported on by the
Auditors;
(v) Prompt notification of material developments including events that
FoundryCo would be required to disclose under Form 8-K of the Exchange Act had
FoundryCo been subject to the reporting requirements of the Exchange Act; and
(vi) Such other information as is reasonably requested by any Shareholder.
(e) (i) Each of Discovery and Oyster and their respective representatives
may, for purposes reasonably related to their interests in FoundryCo, (A)
examine and copy (at each Party’s own cost and expense) the books and records of
FoundryCo, including the documents referred to in Sections 4.01(b)-(d), and (B)
have reasonable access, during normal business hours, to FoundryCo’s management,
employees, plans, properties and other assets to conduct due diligence and other
reasonable investigations (including environmental assessments) regarding
FoundryCo’s business and the FoundryCo Assets (at each Party’s own cost and
expense), and FoundryCo shall reasonably cooperate with each of Discovery and
Oyster in such due diligence and investigations. Notwithstanding anything to the
contrary provided in this Section 4.01, FoundryCo shall have the right to
withhold certain customers’ sensitive information from Discovery and the
Discovery appointees to the Board shall recuse themselves from any discussion of
such information at any Board meetings, if such request is made by a third party
customer of FoundryCo or if the Board (or a committee thereof) determines that
withholding such information in the best interests of FoundryCo and, in each
such case, such information would not adversely affect FoundryCo’s ability to
perform its obligations under the Wafer Supply Agreement.
(ii) FoundryCo shall make its management and employees and its business
records and other documents (including the business records and documents of its
management and employees) available to each of Discovery and Oyster promptly
upon request in connection with any litigation or investigation in which either
Discovery or Oyster is involved, including making those individuals available
for interviews, depositions, written declarations or testimony. Each and every
FoundryCo employee that, prior to the Closing Date, was subject to any Discovery
or Oyster document preservation notice shall continue to remain subject to such
notice. For each and every FoundryCo document that, prior to the Closing Date,
was subject to any Discovery or Oyster document preservation notice, FoundryCo
shall continue to retain and preserve the affected records until the expiration
of such notice. Discovery or Oyster, as the case may be, shall notify FoundryCo
promptly of the termination of any such notice.
(f) Discovery’s rights under Sections 4.01(d) and (e) shall
terminate upon the later of (i) the termination of the Wafer Supply Agreement
and (ii) upon such time that Discovery owns less than 10% of the Fully Diluted
Shares, provided, that notwithstanding the termination of Discovery’s
rights under Sections 4.01(d) and (e), in the event that Oyster has
20
permitted Discovery to designate a Person for election to the Board,
FoundryCo may continue to require the recusal of such Person from discussions
pursuant to Section 4.01(e)(i). Oyster’s rights under Sections 4.01(d)
and (e) shall terminate upon such time that Oyster owns less than 10% of
the Fully Diluted Shares.
(g) The following financial information, in reasonable detail, shall be
transmitted by FoundryCo to Discovery (with a copy to Oyster) if and to the
extent reasonably necessary to permit Discovery to timely account for its
investment in FoundryCo and to prepare for its quarterly earnings releases and
regulatory filings.
(i) In the event Discovery is no longer required to use the equity method of
accounting to account for FoundryCo’s financial results, and thereafter, for so
long as Discovery’s investment in FoundryCo remains material to Discovery
pursuant to GAAP:
|
(A) |
except in the case specified in subparagraph (ii), in which case such |
|
(B) |
within twenty (20) days after the end of each fiscal year of Discovery, the |
|
(C) |
from time to time following the reasonable request of Discovery, the |
in each case as reasonably required for Discovery’s financial statement
preparation in accordance with GAAP.
(ii) Within thirty (30) days after the closing of the transactions
contemplated by the Contribution Agreement (the “Closing”), FoundryCo will
provide to Discovery a post-Closing balance sheet of GFS as of the fiscal year
end closest to Closing, and in the event the Closing requires Discovery to
prepare a fair value report, such additional financial information (not
including additional projected financial information beyond what has been
provided as of the date of the Contribution Agreement) required to produce a
fair value report of GFS.
The information required from FoundryCo pursuant to this Section 4.01(g)
shall (i) include reasonably required projected financial information as well as
historical financial information in
21
the case of the fiscal year-end annual valuation report preparation, but only
historical financial information in the case of quarterly or other interim
reports unless updated projected financial information is reasonably required
under customary and applicable valuation practices to enable AMD to account for
its investment in FoundryCo properly, (ii) include reasonable information
specifically related to determination of the fair value of the Class A Preferred
Shares and (iii) be subject to reasonable representations and confirmations by
FoundryCo with respect thereto. The valuation expert preparing the valuation
reports will work under the direction of Discovery and prepare and deliver such
fair value reports. All third-party costs and expenses associated with the
preparation and delivery of such reports and related information shall be borne
by Discovery. Notwithstanding any permitted termination of Discovery’s
information and access rights pursuant to Section 4.01(f), (i) Discovery
and its representatives may, for purposes reasonably related to the preparation,
review and delivery of the information set forth in this Section
4.01(g), have reasonable access to FoundryCo’s management, employees, books,
records and representatives, during normal business hours (at the cost and
expense of Discovery) and (ii) FoundryCo and Discovery shall reasonably
cooperate with each other in such matters.
ARTICLE V
OTHER AGREEMENTS
SECTION 5.01 Discovery Change of Control Transaction
In the event of a Discovery Change of Control Transaction without Oyster’s
prior written consent,
(a) Discovery shall promptly notify Oyster in writing thereof, setting forth
the date and circumstances of the Discovery Change of Control Transaction and
the identity of the Third Party that has acquired control of Discovery;
(b) all transfer restrictions set forth herein shall cease to be applicable
with respect to all Securities held by Oyster and its Permitted Transferees;
provided, however, that the restrictions on transfer set forth in
Section 3.02(a) shall remain applicable;
(c) if the Discovery Change of Control Transaction occurs prior to the IPO,
Oyster shall have the right (x) to require FoundryCo to consummate the IPO and
(y) to register the number of Securities held by Oyster and its Permitted
Transferees in connection with the IPO. Upon such request, each Shareholder
shall vote all Shares for which such Shareholder is the registered holder or for
which such Shareholder shall otherwise have the ability to control or direct the
voting thereof, in favor of such matters as are necessary for approval of the
shareholders of FoundryCo to effect the IPO, and FoundryCo shall be obligated to
file and have declared effective a Registration Statement under the Securities
Act (the “Registration Statement“) as promptly as practicable following
receipt of notice from Oyster of its intention to exercise its IPO demand (the
“IPO Demand Request“) pursuant to this Section 5.01(c). In the
event of an IPO pursuant to this Section 5.01(c), at Oyster’s election,
any Securities to be included on behalf of Oyster and its Permitted Transferees
in the IPO shall be given first priority, including for the avoidance of doubt,
priority over any Securities to be included on behalf of
22
FoundryCo, Discovery and its Permitted Transferees, other Shareholders and
any employees of FoundryCo or any of its Subsidiaries;
(d) (A) Oyster shall have the right to put, in accordance with Section
3.11, any or all of the Securities (valued at their Fair Market Value) held
by Oyster and its Permitted Transferees to Discovery in exchange for cash, if
the announcement of a Discovery Change of Control Transaction occurs during the
24-month period commencing on March 2, 2009; and (B) regardless when the
announcement of a Discovery Change of Control Transaction occurs, Oyster shall
have the option to purchase in cash, in accordance with Section 3.11, any
or all Securities (valued at their Fair Market Value) held by Discovery and its
Permitted Transferees;
(e) Until the end of 2013, as long as Oyster continues to own Securities,
Oyster shall have the right to require Discovery or the counterparty to the
Discovery Change of Control Transaction, at Oyster’s election, to assume such
portion of Oyster’s funding commitment under the Funding Agreement based on the
percentage of Fully Diluted Shares held by Discovery on each “Funding Date”
thereunder; provided, however, that any such counterparty shall
guarantee such commitment if it does not directly assume it; and
(f) as long as Oyster continues to own Securities, Oyster shall have the
right to require the counterparty to the Discovery Change of Control Transaction
to guarantee all of Discovery’s obligations under the Transaction Documents,
including Discovery’s MPU exclusivity commitments and Discovery’s commitments to
purchase minimum GPU volumes under the Wafer Supply Agreement.
SECTION 5.02 New Investors to Execute Agreement Regarding Restrictions
FoundryCo shall not, and the Board shall not adopt any resolution to, at any
time prior to the IPO, issue any Securities, or resell any Securities held in
its treasury, or issue or resell any security convertible or exchangeable into
Securities, unless, prior to the consummation of any such issuance or Sale of
Securities, each Person to whom such security is proposed to be issued or sold
executes and delivers an agreement, in a form reasonably acceptable to Oyster
and Discovery, to FoundryCo and each Shareholder, whereby such Person confirms
that, with respect to the Securities that are the subject of such Sale of
Securities, it shall be deemed to be a “Shareholder” for the purposes of this
Agreement and agrees to be bound by all such provisions and any other provisions
reasonably required by Oyster and Discovery.
SECTION 5.03 Further Assurances
Unless otherwise specified herein, each of the Parties hereto shall use
commercially reasonable efforts to take, or cause to be taken, all appropriate
action, and to do, or cause to be done, all things necessary, proper or
advisable under applicable Law to consummate and make effective the transactions
contemplated pursuant to this Agreement.
SECTION 5.04 Confidential Information
(a) Each Shareholder and FoundryCo (a “Restricted Party“) (i) shall,
and shall cause its officers, directors, employees, attorneys, accountants,
auditors and agents, to the extent such Persons have received any Confidential
Information (as defined herein) (collectively
23
“Representatives“) and its Affiliates and their Representatives, to
the extent such Persons have received any Confidential Information, to maintain
in strictest confidence any and all confidential information relating to
FoundryCo, the other Shareholders, or any of their respective Subsidiaries that
is proprietary to FoundryCo, the other Shareholders, or any of their respective
Subsidiaries as applicable, or otherwise not available to the general public,
including, but not limited to, information about properties, employees,
finances, businesses and operations of FoundryCo (including customers’ and
suppliers’ information), the other Shareholders, or any of their respective
Subsidiaries and all notes, analyses, compilations, studies, forecasts,
interpretations or other documents prepared by a receiving Shareholder or its
Representatives which contain, reflect or are based upon, in whole or in part,
the information furnished to or acquired by such Shareholder (“Confidential
Information“) and (ii) shall not disclose, and shall cause its
Representatives, any members of the Board appointed by such Shareholder and
their Representatives not to disclose, Confidential Information to any Person
other than to the other Shareholders, FoundryCo and their respective
Subsidiaries (including the agents, employees and attorneys thereof and the
members of the Board appointed by such other Shareholders), except only to the
extent such disclosure is required by applicable Law, SEC rules and regulations
or legal process (including pursuant to any listing agreement with, or the rules
or regulations of, any national securities exchange on which any securities of
such Shareholder (or any Affiliate thereof) are listed or traded) in which event
the Shareholder making such disclosure or whose Affiliates or Representatives
are making such disclosure shall so notify the other Shareholders as promptly as
practicable (and, if possible, prior to making such disclosure) and shall seek
confidential treatment of such information if reasonably requested.
(b) Notwithstanding Section 5.04(a):
(i) Any Restricted Party or any Representative thereof may disclose any
Confidential Information for bona fide business purposes on a strict “need to
know” basis to its Affiliates, its board of directors (or equivalent governing
body), its Representatives and its lenders, provided,
however, that in each such case each such Person is bound by a legal
duty to or otherwise agrees to keep such Confidential Information confidential
in the manner set forth in this Section 5.04.
(ii) The provisions of Section 5.04(a) shall not apply to, and
Confidential Information shall not include:
|
(A) |
any information that is or has become generally available to the public other |
|
(B) |
any information that has been independently developed by such Restricted |
24
|
(C) |
any information made available to such Restricted Party (or any Affiliate |
|
(D) |
any information already possessed by such Restricted Party (or any Affiliate |
(c) Except as otherwise provided for in this Section 5.04,
Confidential Information received hereunder shall be used by each Shareholder
and its Affiliates solely for use in connection with such Shareholder’s
investment in FoundryCo and with respect to FoundryCo and its Subsidiaries.
(d) The obligations of each Shareholder under this Section 5.04 shall
survive for as long as such Party remains a Shareholder, respectively, and for
two years after such Shareholder ceases to be a Shareholder, notwithstanding
such Shareholder’s Sale of Securities, and/or any Person ceasing to be an
Affiliate of such Shareholder, provided, that nothing in this
Section 5.04(d) shall be deemed to terminate or affect the obligations of
either Shareholder with respect to or under any other agreements entered into
between such Shareholder and FoundryCo, including non-disclosure,
confidentiality or other similar agreements, or other commercial agreements that
contain confidentiality or non-disclosure provisions.
SECTION 5.05 Directors’ and Officers’ Liability Insurance and
Indemnification Agreements
FoundryCo shall purchase and maintain directors and officers insurance in an
amount equal to not less than $25 million prior to the IPO and $50 million
immediately following the IPO, and the members of the Board and of any similar
governing bodies of any Subsidiaries of FoundryCo appointed or designated by the
Shareholders shall each be named as covered insureds thereunder. FoundryCo shall
maintain the insurance contemplated hereby in effect from the date hereof until
six (6) years from the last date upon which any member of the Board nominated by
any of the Shareholders held office on the Board. In addition, FoundryCo shall
enter into indemnification agreements with each member of the Board, in the form
of Exhibit B or in such other form as is approved by the Board. In the
event FoundryCo or any of its successors or assigns (i) consolidates with or
merges into any other person and shall not be the continuing or surviving
corporation or entity of such consolidation or merger or (ii) transfers all or
substantially all of the properties and assets of FoundryCo and its Subsidiaries
taken as a whole to any person, then, and in each such case, proper provision
shall be made so that the successors and assigns of FoundryCo shall assume the
obligations set forth in this Section 5.05.
SECTION 5.06 Export Controls
(a) FoundryCo shall comply with all applicable export laws, registrations,
international treaties or orders in effect on the date of the Agreement and as
may be amended
25
from time to time, including, but not limited to, all such laws,
registrations and treaties applicable to the export of goods and services from
one country to another. Without limiting the foregoing, FoundryCo shall not
export or transfer any product, exchange, supply, disclose or provide access to
any technical data, or otherwise provide any service contrary to the applicable
laws and regulations of the United States, or to any country, entity or other
party which is ineligible to receive such items under U.S. laws and regulations,
including regulations of the U.S. Department of Commerce (the Export
Administration Regulations at 15 C.F.R. Pts. 730 to 774), U.S. Department of
State (the International Traffic in Arms Regulations at 22 C.F.R. Pts. 120-130),
or the U.S. Department of the Treasury (the trade sanctions regulations at 31
C.F.R. Pts. 500 to 598).
(b) FoundryCo shall adopt a written policy for compliance with applicable
U.S. export control and foreign trade control laws. As of the date of this
Amended and Restated Shareholders Agreement, this compliance policy is in the
form of Exhibit C. From time to time the board may review this policy and
may revise or amend this policy to assist FoundryCo and its management in its
compliance with the provisions of Section 5.06(a).
SECTION 5.07 Rights to Purchase New Shares
(a) The provisions of this Section 5.07 shall terminate upon the IPO.
(b) At any time, in the event that FoundryCo proposes to issue new Shares to
a Person, each of Discovery and Oyster shall have the right to purchase, in lieu
of any Person to whom FoundryCo proposed to issue such new Shares, in accordance
with paragraph (c) below, a number of new Shares equal to the product of (i) the
total number of new Shares which FoundryCo proposes to issue at such time and
(ii) a fraction, the numerator of which shall be the total number of Fully
Diluted Shares which such Shareholder owns at such time and the denominator of
which shall be the total number of Fully Diluted Shares then Outstanding at the
purchase price set forth in the Notice of Issuance. The rights given by
FoundryCo under this Section 5.07 shall terminate if unexercised within
thirty (30) days after receipt of the Notice of Issuance referred to in
paragraph (c) below.
(c) In the event that FoundryCo proposes to undertake an issuance of new
Shares to a Person, FoundryCo shall give written notice (a “Notice of
Issuance“) of its intention to each of Discovery and Oyster, describing all
material terms of the new Shares and the purchase price. Each of Discovery and
Oyster shall have thirty (30) days from the Notice of Issuance to agree to
purchase all or a portion of its pro rata share of such new Shares (as
determined pursuant to paragraph (b) above) for the same consideration.
(d) If either or both of Discovery and Oyster elect to purchase any new
Shares to be issued by FoundryCo, each such Shareholder electing to purchase the
new Shares to be issued by FoundryCo shall select a date not later than twenty
(20) days (or longer if required by applicable Law) after the expiration of the
thirty (30)-day notice period referenced in paragraph (c) for the issue of the
new Shares. Any new Shares not elected to be purchased by Discovery or Oyster
may be sold by FoundryCo to the Person to which FoundryCo intended to sell such
new Shares on terms and conditions no less favorable to FoundryCo than those
offered to Discovery and Oyster.
26
(e) Notwithstanding anything to the contrary contained herein, the right to
purchase new Shares pursuant to this Section 5.07 shall not apply to (i) the
issuance of any equity-based awards (and the underlying Shares) under any
Incentive Plan, (ii) the issuance of any Shares pursuant to the conversion or
exchange of any outstanding Securities of FoundryCo, or (iii) the issuance of
any Shares pursuant to the terms of the Funding Agreement.
SECTION 5.08 Intel Patent Cross License Agreement
Discovery may not amend, supplement, modify, terminate or extend the Intel
Patent Cross License Agreement in any way that adversely affects FoundryCo with
respect to manufacturing of products for Discovery, or in a way that would
materially impair FoundryCo’s ability to perform its obligations under the Wafer
Supply Agreement, without the prior written consent of FoundryCo.
SECTION 5.09 Fab Build-Outs
The Parties agree to use their commercially reasonable efforts with respect
to the commitments relating to fab build-outs set forth on Exhibit D.
ARTICLE VI
CERTAIN GOVERNANCE MATTERS
SECTION 6.01 Approval of Certain Matters by Majority Vote
(a) All matters within the scope of the Funding Agreement requiring Board or
Shareholder action shall be resolved in accordance with the deadlock provisions
set forth therein.
(b) With respect to the provisions of Section 2.07(b) that require the
approval of all of the members of the Board for certain actions, the
Shareholders agree that:
(i) Notwithstanding Section 2.07(b), if any Shareholder (together with its
Permitted Transferees) owns at least 75% of the Fully Diluted Shares, then the
Company may take action with respect to any of the following if the Board shall
have first approved such action by Majority Vote:
|
(A) |
the amendment of any of the Transaction Documents; |
|
(B) |
the entering into of any transaction, agreement or arrangement of the type |
|
(C) |
the entering into of any contract, arrangement, understanding or other |
(ii) notwithstanding Section 2.07(b), if any Shareholder (together with its
Permitted Transferees) owns at least 90% of the Fully Diluted Shares, then the
27
Company may take action with respect to any of the following if the Board
shall have first approved such action by Majority Vote:
|
(A) |
each of the items listed in Section 6.01(b)(i); |
|
(B) |
implementing material changes in the purpose or scope of FoundryCo’s |
|
(C) |
the approval of any material amendment, modification or revision to the |
|
(D) |
the approval of any Annual Business Plan or any material amendment, |
|
(E) |
the entering into of any contract, arrangement, understanding or other |
ARTICLE VII
DISSOLUTION
SECTION 7.01 Dissolution.
(a) The Shareholders shall pass a special resolution approving the
dissolution of FoundryCo upon the occurrence of any of the following:
|
(i) |
by virtue of a written agreement to that effect, signed by Discovery and |
|
(ii) |
the occurrence of any material event that makes it unlawful or illegal to |
|
(iii) |
at the election by the other Shareholder (the “Non-Affected |
|
(1) |
commences a voluntary case under any Bankruptcy Law, |
|
(2) |
consents to the entry of an order for relief against it in an involuntary |
|
(3) |
consents to the appointment of a Custodian of it or for all or substantially |
28
|
(4) |
makes a general assignment for the benefit of its creditors, |
|
(5) |
generally is unable to pay its debts as the same become due, or |
|
(B) |
if a court of competent jurisdiction enters an order or decree, and such |
|
(1) |
is for relief against the Affected Shareholder in an involuntary case, |
|
(2) |
appoints a Custodian of the Affected Shareholder or for all or substantially |
|
(3) |
orders the liquidation of the Affected Shareholder. |
For the purposes of this Section 7.01, the term “Bankruptcy
Law” means title 11, U.S. Code or any similar foreign, federal or state law
for the relief of debtors. The term “Custodian” means any receiver,
trustee, assignee, liquidation or similar official under any Bankruptcy Law.
(b) Upon the occurrence of any of the events set forth in Section
7.01(a)(iii) (A) and (B), the Non-Affected Shareholder may elect in
lieu of triggering the dissolution of FoundryCo pursuant to Section
7.01(a)(iii) any or all of the following actions:
|
(i) |
upon notice to FoundryCo by the Non-Affected Shareholder, the rights of the |
|
(ii) |
the Non-Affected Shareholder shall have the option to purchase in cash, in |
(c) Upon the dissolution of FoundryCo, the Person or Persons approved by the
Shareholders holding a majority of the Fully Diluted Shares to carry out the
winding-up of FoundryCo shall immediately commence to wind up FoundryCo’s
affairs in accordance with applicable Law and the Memorandum and Articles of
Association; provided, however, that a reasonable time shall be allowed
for the orderly liquidation of the assets of FoundryCo and the
29
satisfaction of liabilities to creditors so as to enable the Shareholders to
minimize the normal losses attendant upon a liquidation.
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01 Termination
This Agreement shall terminate only:
(a) upon dissolution of FoundryCo in accordance with Article VII;
(b) by virtue of a written agreement to that effect, signed by all Parties
hereto then possessing any rights hereunder; or
(c) with respect to any Shareholder (subject to Section 5.04(d)), at
such time as such Shareholder (together with its Permitted Transferees) no
longer owns or holds any Securities.
If this Agreement is terminated pursuant to Section 8.01, all rights
and obligations of the Parties hereunder (except for this paragraph, Section
5.04 (Confidential Information), Section 8.02 (Notices), Section
8.10 (Governing Law; Arbitration), Section 8.13 (Expenses) and
Appendix A (Definitions)) shall terminate. Nothing contained in this
Section 8.01 shall relieve any Party for any breach of any agreement or
covenant contained in this Agreement that occurred prior to the date of
termination of this Agreement.
SECTION 8.02 Notices
All notices, requests, claims, demands and other communications hereunder
shall be in writing and shall be given or made (and shall be deemed to have been
duly given or made upon receipt) by delivery in person, by an internationally
recognized overnight courier service, by facsimile or by registered or certified
mail (postage prepaid, return receipt requested) to the respective Parties at
the following addresses (or at such other address for a Party as shall be
specified in a notice given in accordance with this section):
|
(a) |
if to FoundryCo: |
GLOBALFOUNDRIES, Inc.
P.O. Box 309, Ugland House
Grand Cayman, KY1-1104
Cayman Islands
30
with a copy to:
GLOBALFOUNDRIES U.S. Inc.
840 N. McCarthy Blvd.
Milpitas, CA 95035 USA
Attn: General Counsel
|
(b) |
if to Bidco: |
ATIC International Investment Company LLC
Mamoura Building A
Intersection of Muroor Road and 15th Street
Abu Dhabi, United Arab Emirates
Attention: Ibrahim Ajami (with a copy to Samak Azar)
Fax +971 (2) 413 0102
|
(c) |
if to Oyster: |
Advanced International Investment Company LLC
Mamoura Building A
Intersection of Muroor Road and 15th Street
Abu Dhabi, United Arab Emirates
Attention: Ibrahim Ajami (with a copy to Samak Azar)
Fax +971 (2) 413 0102
with a copy to (which shall not constitute notice):
Shearman & Sterling LLP
525 Market Street
Suite 1500
San Francisco, CA 94105
Facsimile: (415) 616-1199
Attention: John D. Wilson
|
(d) |
if to Discovery: |
Advanced Micro Devices, Inc.
7171 Southwest Parkway, B100.4
Austin, Texas 78735
Facsimile: (512) 602-4999
Attention: General Counsel
31
with a copy to (which shall not constitute notice):
Latham & Watkins LLP
140 Scott Drive
Menlo Park, CA 94025
Facsimile: (650) 463-2600
Attention: Tad J. Freese
SECTION 8.03 Public Announcements
No Party hereto shall make, or cause to be made, any press release or public
announcement or otherwise communicate with any news media in respect of this
Agreement or the transactions contemplated hereby without the prior consent of
the other Parties unless otherwise required by Law or applicable stock exchange
regulation, and the Parties hereto shall cooperate as to the timing and contents
of any such press release, public announcement or communication.
SECTION 8.04 Severability
If any term or other provision of this Agreement is invalid, illegal or
incapable of being enforced by any Law or public policy, all other terms and
provisions of this Agreement shall nevertheless remain in full force and effect
for so long as the economic or legal substance of the transactions contemplated
hereby is not affected in any manner materially adverse to any Party hereto.
Upon such determination that any term or other provision is invalid, illegal or
incapable of being enforced, the Parties hereto shall negotiate in good faith to
modify this Agreement so as to effect the original intent of the Parties as
closely as possible in an acceptable manner in order that the transactions
contemplated hereby are consummated as originally contemplated to the greatest
extent possible.
SECTION 8.05 Entire Agreement
This Agreement and the other Transaction Documents constitute the entire
agreement of the Parties hereto with respect to the subject matter hereof and
thereof and supersede all prior agreements and undertakings, both written and
oral, between Discovery, Oyster and FoundryCo with respect to the subject matter
hereof and thereof.
SECTION 8.06 Assignment
This Agreement may not be assigned by operation of law or otherwise without
the express written consent of each Party hereto (which consent may be granted
or withheld in the sole discretion of such Party) and any such assignment or
attempted assignment without such consent shall be void.
SECTION 8.07 Amendment
This Agreement may not be amended or modified except (a) by an instrument in
writing signed by, or on behalf of, each Party hereto or (b) by a waiver in
accordance with Section 8.08.
32
SECTION 8.08 Waiver
Either Discovery or Oyster may (a) extend the time for the performance of any
of the obligations or other acts of the other Party, (b) waive any inaccuracies
in the representations and warranties of the other Party contained herein or in
any document delivered by the other Party pursuant hereto, or (c) waive
compliance with any of the agreements of the other Party or conditions to such
Party’s obligations contained herein. Any such extension or waiver shall be
valid only if set forth in an instrument in writing signed by the Party to be
bound thereby. Any waiver of any term or condition shall not be construed as a
waiver of any subsequent breach or a subsequent waiver of the same term or
condition, or a waiver of any other term or condition of this Agreement. The
failure of either Party hereto to assert any of its rights hereunder shall not
constitute a waiver of any of such rights. All rights and remedies existing
under this Agreement are cumulative to, and not exclusive of, any rights or
remedies otherwise available.
SECTION 8.09 Third Party Beneficiaries
This Agreement shall be binding upon and inure solely to the benefit of the
Parties hereto and their respective successors and permitted assigns and nothing
herein, express or implied, is intended to or shall confer upon any other
Person, including any union or any employee or former employee of Discovery, any
legal or equitable right, benefit or remedy of any nature whatsoever, including
any rights of employment for any specified period, under or by reason of this
Agreement.
SECTION 8.10 Governing Law; Arbitration
(a) This Agreement shall be governed by, and construed in accordance with,
the Laws of the State of New York applicable to contracts executed in and to be
performed in that State, without regard to principles of the conflict of laws.
(b) Any dispute arising out of, or in connection with this Agreement or any
transactions contemplated hereby, including any question regarding the
existence, validity, interpretation, breach or termination of this Agreement (a
“Dispute“), shall be referred, upon written notice (a “Dispute
Notice“) given by one Party to the other(s), to a senior executive from each
Party. The senior executives shall seek to resolve the Dispute on an amicable
basis within thirty (30) days of the Dispute Notice being received.
(c) Any Dispute not resolved within thirty (30) days of the Dispute Notice
being received shall be referred to, and shall be finally and exclusively
resolved by, arbitration under the Rules of the London Court of International
Arbitration (the “LCIA Rules“) then in effect, as amended by this
Section 8.10, which LCIA Rules are deemed to be incorporated by reference
into this Section 8.10, save that Article 6 of those Rules shall not be
incorporated and arbitrators shall be selected without regard to nationality.
The seat, or legal place, of the arbitration shall be London, England. The
language of the arbitration shall be English. The number of arbitrators shall be
three (3). Each Party shall nominate one arbitrator and the two (2) arbitrators
nominated by the Parties shall, within thirty (30) days of the appointment of
the second arbitrator, agree upon and nominate a third arbitrator who shall act
as Chairman of the Tribunal (as such terms are defined in the LCIA Rules). If no
agreement is reached within thirty
33
(30) days, the LCIA Court (as such term is defined in the LCIA Rules) shall
appoint a third arbitrator to act as Chairman of the Tribunal. It is hereby
expressly agreed that if there is more than one claimant party or more than one
respondent party, the claimant parties shall together nominate one arbitrator
and the respondent parties shall together nominate one arbitrator. In the event
that a sole claimant or the claimant parties, on the one side, or a sole
respondent or the respondent parties, on the other side, fails to nominate
its/their arbitrator, such arbitrator shall be appointed by the LCIA Court. Any
award issued by the arbitrators shall be final and binding upon the Parties,
and, subject to this Section 8.10(c) and to Section 8.10(d), may
be entered and enforced in any court of competent jurisdiction by any of the
Parties. In the event any Party subject to such final and binding award desires
to have it confirmed by a final order of a court, the only court which may do so
shall be a court of competent jurisdiction located in London, England; provided
however, that nothing in this sentence shall prejudice or prevent a Party from
enforcing the arbitrators’ final and binding award in any court of competent
jurisdiction. The Parties hereto acknowledge and agree that any breach of the
terms of this Agreement could give rise to irreparable harm for which money
damages would not be an adequate remedy. Accordingly, the Parties agree that,
prior to the formation of the Tribunal, the Parties have the right to apply
exclusively to any court of competent jurisdiction or other judicial authority
located in London, England for interim or conservatory measures, including,
without limitation, to compel arbitration (an “Interim Relief
Proceeding“). Furthermore, the Parties agree that, after the formation of
the Tribunal, the arbitrators shall have the sole and exclusive power to grant
temporary, preliminary and permanent relief, including injunctive relief and
specific performance, and any then pending Interim Relief Proceeding shall be
discontinued without prejudice to the rights of any of the Parties thereto.
Unless otherwise ordered by the arbitrators pursuant to the terms hereof, the
arbitrators’ expenses shall be shared equally by the Parties. In furtherance of
the foregoing, each of the Parties hereto irrevocably submits to: (i) the
exclusive jurisdiction of the courts of England located in London, England in
relation to any Interim Relief Proceeding and; (ii) the non-exclusive
jurisdiction of the courts of England located in London, England with respect to
the enforcement of any arbitral award rendered in accordance with this
Section 8.10; and, with respect to any such suit, action or proceeding,
waives any objection that it may have to the courts of England located in
London, England on the grounds of inconvenient forum. For the avoidance of
doubt, where an arbitral tribunal is appointed under this Agreement, the whole
of its award shall be deemed for the purposes of the New York Convention on the
Recognition and Enforcement of Foreign Arbitral Awards of 1958 to be
contemplated by this Agreement (and judgment on any such award may be entered in
accordance with the provisions set forth in this Section 8.10).
(d) Oyster hereby irrevocably waives to the fullest extent permitted by
applicable Law whatever defense it may have of sovereign immunity against suit
or enforcement, for itself and its property (presently owned or subsequently
acquired, and whether related to this Agreement or not), in: (i) any arbitration
proceedings commenced and held in London, England in accordance with Section
8.10(c); (ii) any Interim Relief Proceeding commenced and held in a court of
competent jurisdiction in London, England, in accordance with Section
8.10(c); (iii) any proceedings in a court of competent jurisdiction located
in London, England to confirm an award rendered by the arbitrators in accordance
with this Section 8.10; and (iv) any proceedings in a court of competent
jurisdiction to enforce an award, and Oyster agrees that it will not raise,
claim or cause to be pleaded any such immunity at or in respect of any such
action or proceeding.
34
(e) The Parties hereto agree that the process by which any arbitral or other
proceedings in London, England are begun may be served on them by being
delivered to Law Debenture Corporate Services Limited or their registered
offices for the time being and by giving notice in accordance with Section
8.02. If Law Debenture Corporate Services Limited is not or ceases to be
effectively appointed to accept service of process in England on any Party’s
behalf, such Party shall immediately appoint a further person in England to
accept service of process on its behalf. If within fifteen (15) days of notice
from a Party requiring another Party to appoint a person in England to accept
service of process on its behalf the other Party fails to do so, the Party shall
be entitled to appoint such a person by written notice to the other Party.
Nothing in this paragraph shall affect the right of the Parties to serve process
in any other manner permitted by Law.
SECTION 8.11 Currency
Unless otherwise specified in this Agreement, all references to currency,
monetary values and dollars set forth herein shall mean United States (U.S.)
dollars and all payments hereunder shall be made in United States dollars.
SECTION 8.12 Counterparts
This Agreement may be executed and delivered (including by facsimile
transmission) in one or more counterparts, and by the different Parties hereto
in separate counterparts, each of which when executed shall be deemed to be an
original, but all of which taken together shall constitute one and the same
agreement.
SECTION 8.13 Expenses
Except as otherwise specified in this Agreement, all costs and expenses,
including fees and disbursements of counsel, financial advisors and accountants,
incurred in connection with this Agreement and in closing and carrying out the
transactions contemplated hereby shall be paid by the Party incurring such cost
or expense.
SECTION 8.14 No Presumption Against Drafting Party
Each Party hereto acknowledges and agrees it has had the opportunity to
draft, review and edit the language of this Agreement and that each of the
Parties hereto has been represented by counsel in connection with the
negotiation and execution of this Agreement and the other Transaction Documents.
Accordingly, any rule of law or any legal decision that would require
interpretation of any claimed ambiguities in this Agreement against the drafting
Party has no application and is expressly waived.
35
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed by their respective authorized signatories thereunto duly authorized as
of the date first above written.
|
GLOBALFOUNDRIES INC. |
||
|
By: |
/s/ D.A. Grose |
|
|
Name: |
D.A. Grose |
|
|
Title: |
CEO |
|
|
ADVANCED MICRO DEVICES, INC. |
||
|
By: |
/s/ Devinder Kumar |
|
|
Name: |
||
|
Title: |
||
|
ADVANCED TECHNOLOGY INVESTMENT COMPANY LLC |
||
|
By: |
/s/ Ibrahim Ajami |
|
|
Name: |
Ibrahim Ajami |
|
|
Title: |
Chief Executive Officer |
|
|
ATIC INTERNATIONAL INVESTMENT COMPANY LLC |
||
|
By: |
/s/ Samak L. Azar |
|
|
Name: |
Samak L. Azar |
|
|
Title: |
Director |
|
|
By: |
/s/ Ibrahim Ajami |
|
|
Name: |
Ibrahim Ajami |
|
|
Title: |
Director |
|
APPENDIX A
SHAREHOLDERS’ AGREEMENT
DEFINITIONS
“Accreted Value” means the sum of (i) the purchase price per Class B
Preferred Share, plus (ii) the amount of value accreted on the purchase price
per Class B Preferred Share at a rate of 12% per year, compounded semiannually.
“Additional Convertible Notes” means any additional convertible
promissory notes of FoundryCo to be issued after the Closing Date pursuant to
the Funding Agreement and the Master Transaction Agreement, including
paid-in-kind interest on such notes.
“Additional Shares” means the additional Ordinary Shares issuable upon
the conversion of the Class B Preferred Shares, if the Fair Market Value of the
Ordinary Shares to be received upon such conversion would be less than the
Accreted Value of such Class B Preferred Shares.
“Affiliate” means, with respect to any specified Person, any other
Person that directly, or indirectly through one or more intermediaries,
controls, is controlled by, or is under common control with, such specified
Person; provided, however, that with respect to Oyster and
Pearl, Affiliate shall mean any direct or indirect Subsidiary of Oyster or
Pearl, respectively, and not any direct or indirect parent or sister entity of
either Oyster or Pearl, as the case may be, unless such parent or sister entity
is acting as a member of a “group” (as defined in Section 13(d)(3) of the
Exchange Act) with Oyster or Pearl, respectively, for the purposes of acquiring,
holding or disposing of securities of FoundryCo; and provided
further, however, that Bidco and Oyster shall each be deemed to be
an Affiliate of the other.
“Annual Business Plan” has the meaning set forth in the Funding
Agreement.
“Assumed Liabilities” means only the Liabilities set forth on Exhibit
E to the Master Transaction Agreement.
“ATIC Facility” means the credit facility under which Oyster borrowed
US $600 million and provided the proceeds to Bidco, which proceeds were used to
reduce the debt of FoundryCo’s GlobalFoundries Singapore Pte Ltd (“GFS“)
prior to the date of the acquisition of GFS by FoundryCo.
“Board” means the Board of Directors of FoundryCo, as specified in the
Memorandum and Articles of Association.
“Business Day” means any day that is not a Friday, a Saturday, a
Sunday or other day on which banks are required or authorized by Law to be
closed in The City of New York or in Abu Dhabi.
“Class A Preferred Shares” means shares of Class A preferred shares of
FoundryCo with the rights, preferences and privileges set forth in the
Memorandum and Articles of Association.
“Class B Preferred Shares” means shares of Class B preferred shares of
FoundryCo with the rights, preferences and privileges set forth in the
Memorandum and Articles of Association.
APPENDIX A-1
APPENDIX A
“Closing Date” means March 2, 2009.
“Contribution Agreement” means that Share Contribution Agreement by
and among Discovery, Oyster, BidCo, GFS and FoundryCo dated as of December 15,
2010 pursuant to which 100% of the ordinary shares of GFS are contributed to
FoundryCo.
“control” (including the terms “controlled by” and “under
common control with“), with respect to the relationship between or among two
or more Persons, means the possession, directly or indirectly or as trustee,
personal representative or executor, of the power to direct or cause the
direction of the affairs or management of a Person, whether through the
ownership of voting securities, as trustee, personal representative or executor,
by contract, credit arrangement or otherwise.
“Convertible Notes” means the Initial Convertible Notes and the
Additional Convertible Notes.
“Director” means a Person who is a member of the Board.
“Discovery Change of Control Transaction” has the meaning set forth in
the Master Transaction Agreement.
“Discovery WSA Material Breach” means, for the purposes of Section
2.03(a) only, that Discovery shall have breached any of its material covenants
or agreements under the Wafer Supply Agreement in any material respect,
including, without limitation, if Discovery has: (i) purchased or agreed to
purchase MPU Products from a Person other than FoundryCo in violation of the
terms of the Wafer Supply Agreement, or (ii) materially failed to fulfill any
other material purchase commitment or payment obligation under the Wafer Supply
Agreement (as amended from time to time, including, without limitation, with
respect to the terms and conditions for wafer deliveries in 2011); provided that
with respect to (ii) Oyster shall have provided written notice to Discovery of
such material failure and Discovery shall not have cured such material failure
within thirty (30) days of receiving such written notice and provided further,
in the case of any such breach, that FoundryCo shall not have first materially
breached any of its material covenants or agreements under the Wafer Supply
Agreement.
“Encumbrance” means any security interest, pledge, hypothecation,
mortgage, lien (including environmental and tax liens), violation, charge,
lease, license, encumbrance, servient easement, adverse claim, reversion,
reverter, preferential arrangement, restrictive covenant, condition or
restriction of any kind, including any restriction on the use, voting, transfer,
receipt of income or other exercise of any attributes of ownership.
“Exchange Act” means the United States Securities Exchange Act of
1934, as amended, and the rules and regulations promulgated thereunder.
“Fair Market Value” means, as of any date of determination (i) with
respect to the Convertible Notes, the aggregate outstanding principal amount of
such Convertible Notes plus any accrued interest; (ii) with respect to
securities traded on any internationally recognized securities exchange, the
value shall be deemed to be the average of the closing price of the securities
on such exchange over the twenty (20)-day period ending two (2) days prior to
such
APPENDIX A-2
APPENDIX A
date of determination; (iii) with respect to securities actively traded
over-the-counter, the value shall be deemed to be the average of the closing bid
or sale price (whichever is applicable) over the twenty (20)-day period ending
two (2) days prior to such date of determination; and (iv) with respect to
securities for which there is no active public market, and with respect to
property or other assets, the fair market value thereof, as determined in
accordance with Section 3.11. In making such determination, the impact of
all terms of the securities shall be taken into account, including conversion
premiums, dividends, attached warrants, exercise price and the like, and the
presence or absence of an active public market for the securities. For purposes
of Section 5.01, the date of determination hereunder shall be the date of
the public announcement of the Discovery Change of Control Transaction.
“Five-Year Capital Plan” has the meaning set forth in the Funding
Agreement.
“FoundryCo Group” has the meaning set forth in the Master Transaction
Agreement.
“FoundryCo Assets” has the meaning set forth in the Master Transaction
Agreement.
“Fully Diluted Shares” means the aggregate of (i) the number of
Ordinary Shares issued and Outstanding and (ii) the number of Ordinary Shares
issuable upon (x) the exercise of any then exercisable outstanding options,
warrants or similar instruments (other than such instruments held by FoundryCo)
and (y) the exercise of any conversion or exchange rights with respect to any
outstanding securities, including (A) any Class A Preferred Shares and Class B
Preferred Shares, assuming each Class A Preferred Share and each Class B
Preferred Share converts into 100 Ordinary Shares (but excluding any Additional
Shares issuable with respect to the Class B Preferred Shares), as adjusted for
any share splits, share dividends, share combinations and the like, and (B) any
Convertible Notes, assuming the Convertible Notes convert into Preferred Shares
and then into Ordinary Shares in accordance with the terms thereof (excluding
any accrued and unpaid interest).
“Funding Agreement” means the Funding Agreement, dated as of March 2,
2009, among Oyster, Discovery and FoundryCo, relating to capital contributions
to FoundryCo, as may be amended from time to time.
“Funding Date” has the meaning set forth in the Funding Agreement.
“GAAP” means United States generally accepted accounting principles
and practices in effect from time to time applied consistently throughout the
periods involved.
“GFS Share Pledge Agreement” means the agreement with the lenders
under the ATIC Facility pursuant to which Bidco pledged the ordinary shares of
GFS to the lenders to secure the performance of Oyster under the ATIC Facility.
“Governmental Authority” means any federal, national, supranational,
state, provincial, local, or similar government, governmental, regulatory or
administrative authority, agency or commission or any court, tribunal, or
judicial or arbitral body.
“HSR Act” means the Hart-Scott-Rodino Antitrust Improvements Act of
1976 and the rules and regulations promulgated thereunder.
APPENDIX A-3
APPENDIX A
“IFRS” means International Financial Reporting Standards as in effect
from time to time.
“Incentive Plan” means an incentive compensation plan for FoundryCo.
“Initial Convertible Notes” means (i) the two hundred one million
eight hundred ten thousand dollars ($201,810,000) principal amount class A
convertible promissory note issued by FoundryCo to Oyster on the Closing Date,
including any paid-in-kind interest on such note, and (ii) the eight hundred
seven million two hundred forty thousand dollars ($807,240,000) principal amount
class B convertible promissory note issued by FoundryCo to Oyster on the Closing
Date, including any paid-in-kind interest on such note.
“Intellectual Property” has the meaning set forth in the Master
Transaction Agreement.
“Intel Patent Cross License Agreement” means the Patent Cross License
Agreement, dated as of November 11, 2009, between Discovery and Intel, as may be
amended from time to time.
“IPO” means the initial Public Offering of FoundryCo.
“Law” means any federal, national, supranational, state, provincial,
local or similar statute, law, ordinance, decree, regulation, rule, code, order,
requirement or rule of law (including common law).
“Luther Forest Site” has the meaning set forth in the Master
Transaction Agreement.
“Majority Vote” means the affirmative vote of at least a majority of
the members of the Board.
“Malta Rocket Fuel Area” has the meaning set forth in the Master
Transaction Agreement.
“Master Transaction Agreement” means the Master Transaction Agreement
by and among Discovery, Oyster and the other parties thereto dated as of October
6, 2008, as amended.
“Memorandum and Articles of Association” means the Memorandum and
Articles of Association of FoundryCo, filed with the Registrar of Companies in
the Cayman Islands, as may be amended from time to time.
“Officers” means the employees designated as officers by the Board
including but not limited to a Chief Executive Officer and a Chief Financial
Officer.
“Ordinary Shares” means the ordinary shares of FoundryCo, with rights,
preferences and privileges set forth in the Memorandum and Articles of
Association.
“Outstanding” means, as of any date of determination, all Shares that
have been issued on or prior to such date, other than Shares held, repurchased
or otherwise reacquired by FoundryCo on or prior to such date.
APPENDIX A-4
APPENDIX A
“Pearl” has the meaning set forth in the Master Transaction Agreement.
“Permitted Transferee” means with respect to a Shareholder or
FoundryCo, any Affiliate of such Shareholder or FoundryCo, as the case may be;
provided, however, that with respect to Oyster or FoundryCo,
Permitted Transferee shall also mean any transferee Person directly or
indirectly controlled by the Abu Dhabi government that is directed to be a
transferee by any Governmental Authority; and provided further,
however, that Bidco and Oyster shall each be deemed to be a Permitted
Transferee of the other.
“Person” means an individual, partnership, firm, corporation, limited
liability company, association, trust, unincorporated organization or other
entity, as well as any syndicate or group that would be deemed to be a person
under Section 13(d)(3) of the Exchange Act.
“Preferred Shares” means the Class A Preferred Shares and Class B
Preferred Shares.
“Proceeding” means any action, suit, claim, charge, hearing,
arbitration, audit, or proceeding (public or private).
“Public Offering” means an underwritten public offering of equity
securities pursuant to an effective Registration Statement under the Securities
Act or similar non-U.S. applicable Laws.
“Qualified Processes” has the meaning set forth in the Wafer Supply
Agreement.
“Register of Members” has the meaning set forth in the Memorandum and
Articles of Association.
“Sale of Securities” means any issuance, sale, assignment, transfer,
distribution (whether by an entity to its owners or otherwise) or other
disposition of Securities or of a participation therein, whether voluntarily or
by operation of applicable Law.
“SEC” means the United States Securities and Exchange Commission.
“Securities” means the Shares and the Convertible Notes.
“Securities Act” means the United States Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
“Shareholders’ Agreement” means this Agreement, as may be amended from
time to time.
“Shareholder” means each Person (other than FoundryCo) that shall be a
party to the Shareholders’ Agreement as a holder of Securities, whether in
connection with the execution and delivery thereof as of the Closing Date or
otherwise, so long as such Person shall beneficially own, hold of record or be a
registered holder of any Securities.
“Shares” means the Ordinary Shares, the Preferred Shares and any other
shares of the share capital of FoundryCo issued on or after the date of the
Shareholders’ Agreement.
APPENDIX A-5
APPENDIX A
“Subsidiary” or “Subsidiaries“, with respect to any Person,
means any and all corporations, partnerships, limited liability companies, joint
ventures, associations and other entities controlled by such Person, directly or
indirectly or in which such Person directly or indirectly has at least 50% of
the voting power to elect the board of directors or other governing body of such
entity.
“Third Party” means, with respect to any Shareholder, any Person other
than (i) any Permitted Transferee of such Shareholder or (ii) the Other
Shareholder, and, with respect to FoundryCo, any Person other than its
Subsidiaries or a Shareholder or the Permitted Transferees of a Shareholder.
“Transaction Documents” has the meaning set forth in the Master
Transaction Agreement.
“Transition Period” has the meaning set forth in the Funding
Agreement.
“Wafer Starts” has the meaning set forth in the Wafer Supply
Agreement.
“Wafer Supply Agreement” means the Wafer Supply Agreement, dated as of
March 2, 2009, between Discovery and FoundryCo, relating to the manufacture and
sale of wafers to Discovery by FoundryCo, as may be amended from time to time.
APPENDIX A-6
APPENDIX A
Table of Additional Definitions. The following terms have the meanings
set forth in the Sections set forth below:
|
Definition |
Location |
|
|
Affected Director |
7.01(b)(i) |
|
|
Affected Shareholder |
7.01(a)(iii)(A) |
|
|
Agreement |
Preamble |
|
|
Auditors |
4.01(a) |
|
|
Bankruptcy Law |
7.01 |
|
|
Confidential Information |
5.04(a) |
|
|
Custodian |
7.01 |
|
|
day(s) |
1.02 |
|
|
Discovery |
Preamble |
|
|
Dispute |
8.10(b) |
|
|
Dispute Notice |
8,10(b) |
|
|
Drag-Along Notice |
3.08(c) |
|
|
Drag-Along Offer |
3.08(c) |
|
|
Drag-Along Offered Securities |
3.08(b) |
|
|
Drag-Along Transaction |
3.08(b) |
|
|
Dragged-Along Shareholder |
3.08(b) |
|
|
Dragging-Along Shareholder |
3.08(b) |
|
|
Election Notice |
3.11(a) |
|
|
Finance and Audit Committee |
2.05(a) |
|
|
FoundryCo |
Preamble |
|
|
Intel |
3.02(b) |
|
|
Interim Relief Proceeding |
8.10(c) |
|
|
IPO Demand Request |
5.01(c) |
|
|
Last Look Acceptance Notice |
3.06(b) |
|
|
Last Look Notice |
3.06(b) |
|
|
LCIA Rules |
8.10(c) |
|
|
Mutually Designated Appraiser |
3.11(b)(iii) |
|
|
Non-Affected Director |
7.01(b)(i) |
|
|
Non-Affected Shareholder |
7.01(a)(iii) |
|
|
Notice of Acceptance |
3.05(c) |
|
|
Notice of Issuance |
5.07(c) |
|
|
Offer |
3.05(b) |
|
|
Offer Notice |
3.05(b) |
|
|
Offer Period |
3.05(c) |
|
|
Offer Price |
3.05(b) |
|
|
Offered Securities |
3.05(b) |
|
|
Original Agreement |
Recitals |
|
|
Other Shareholder |
3.05(b) |
|
|
Oyster |
Preamble |
|
|
Parties/Party |
Preamble |
|
|
Proceedings |
8.10(c) |
|
APPENDIX A-7
APPENDIX A
|
Definition |
Location |
|
|
Prospective Seller |
3.05(b) |
|
|
Prospective Transferee |
3.09(a) |
|
|
Public Sale |
3.09(b) |
|
|
Registration Statement |
5.01(c) |
|
|
Representatives |
5.04(a) |
|
|
Restricted Party |
5.04(a) |
|
|
Restricted Period |
3.03(a) |
|
|
Shareholders’ Agreement |
Preamble |
|
|
Tag-Along Notice of Interest |
3.07(b)(ii) |
|
|
Tag-Along Offer |
3.05(c) |
|
|
Tag-Along Offered Securities |
3.07(b)(ii) |
|
|
Unaccepted Securities |
3.05(e) |
APPENDIX A-8
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