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EXHIBIT 10.27(a)
----------------------------
JOINT VENTURE AGREEMENT
BETWEEN
ADVANCED MICRO DEVICES, INC.
AND
FUJITSU LIMITED
----------------------------
Confidential portions of this document have been deleted and
filed separately with the Securities and Exchange Commission
pursuant to a request for confidential treatment.
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JOINT VENTURE AGREEMENT
TABLE OF CONTENTS
INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Article 1. DEFINITIONS. . . . . . . . . . . . . . . . . . . . . . . . 2
Section 1.1 "AMD INVESTMENT AGREEMENT". . . . . . . . . . 2
Section 1.2 "APPLICABLE LAW". . . . . . . . . . . . . . . 2
Section 1.3 "ARTICLES OF INCORPORATION" . . . . . . . . . 2
Section 1.4 "ASSOCIATED AGREEMENTS" . . . . . . . . . . . 2
Section 1.5 "BOARD OF DIRECTORS". . . . . . . . . . . . . 2
Section 1.6 "BUSINESS PLAN" . . . . . . . . . . . . . . . 2
Section 1.7 "COMBINED FINANCIAL
CONTRIBUTION". . . . . . . . . . . . . . . . 3
Section 1.8 "CONFIDENTIAL INFORMATION". . . . . . . . . . 3
Section 1.9 "EFFECTIVE DATE". . . . . . . . . . . . . . . 3
Section 1.10 "EPROM". . . . . . . . . . . . . . . . . . . 3
Section 1.11 "FLASH MEMORY" . . . . . . . . . . . . . . . 3
Section 1.12 "FUJITSU INVESTMENT AGREEMENT" . . . . . . . 4
Section 1.13 "GOVERNMENTAL APPROVALS" . . . . . . . . . . 4
Section 1.14 "GOVERNMENTAL AUTHORITY" . . . . . . . . . . 4
Section 1.15 "INDEPENDENT ACCOUNTING FIRM". . . . . . . . 4
Section 1.16 "INVESTMENT AGREEMENTS". . . . . . . . . . . 4
Section 1.17 "JOINT DEVELOPMENT AGREEMENT". . . . . . . . 4
Section 1.18 "JOINT VENTURE LICENSE
AGREEMENT". . . . . . . . . . . . . . . . . 5
Section 1.19 "JV PRODUCT" . . . . . . . . . . . . . . . . 5
Section 1.20 "LAND LEASE" . . . . . . . . . . . . . . . . 5
Section 1.21 "NONDISCLOSURE AGREEMENTS" . . . . . . . . . 5
Section 1.22 "PERCENTAGE INTEREST". . . . . . . . . . . . 5
Section 1.23 "REGULATIONS OF THE BOARD OF
DIRECTORS". . . . . . . . . . . . . . . . . 5
Section 1.24 "TECHNOLOGY CROSS-LICENSE
AGREEMENT". . . . . . . . . . . . . . . . . 5
Article 2. INCORPORATION. . . . . . . . . . . . . . . . . . . . . . . 5
Section 2.1 Formation of JV . . . . . . . . . . . . . . . 5
Section 2.2 The Name of JV. . . . . . . . . . . . . . . . 5
Section 2.3 Articles of Incorporation . . . . . . . . . . 6
Section 2.4 Capital Contributions . . . . . . . . . . . . 6
Section 2.5 Reimbursement of Incorporation
Expenses. . . . . . . . . . . . . . . . . . . 7
Article 3. MANAGEMENT OF JV . . . . . . . . . . . . . . . . . . . . . 7
Section 3.1 Meetings and Resolutions of
Shareholders. . . . . . . . . . . . . . . . . 7
Section 3.2 Election of Directors and
Statutory Auditors. . . . . . . . . . . . . . 8
Section 3.3 Representative Directors and
Directors with Titles . . . . . . . . . . . . 9
Section 3.4 Meetings and Resolutions of the
Board of Directors. . . . . . . . . . . . . . 9
Section 3.5 Statement of Policy.. . . . . . . . . . . . . 12
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Section 3.6 Manufacturing Activity. . . . . . . . . . . . 12
Section 3.7 [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION]. . . . . . . . . . . . 13
Section 3.8 Accounting and Reporting
Obligations . . . . . . . . . . . . . . . . . 13
Article 4. RIGHTS AND OBLIGATIONS OF THE PARTIES. . . . . . . . . . . . . 15
Section 4.1 Financing . . . . . . . . . . . . . . . . . . 15
Section 4.2 Land Lease. . . . . . . . . . . . . . . . . . 15
Section 4.3 Transfer of Shares;
Right of First Refusal. . . . . . . . . . . . 17
Section 4.4 Transfer of Fujitsu Employees . . . . . . . . 19
Section 4.5 Transfer and Assignment of AMD
Employees . . . . . . . . . . . . . . . . . . 19
Section 4.6 Confidentiality . . . . . . . . . . . . . . . 19
Article 5. ASSOCIATED AGREEMENTS. . . . . . . . . . . . . . . . . . . . . 22
Article 6. REPRESENTATIONS AND WARRANTIES . . . . . . . . . . . . . . . . 23
Section 6.1 Representations and Warranties of
Fujitsu . . . . . . . . . . . . . . . . . . . 23
Section 6.2 Representations and Warranties
of AMD. . . . . . . . . . . . . . . . . . . . 24
Article 7. TERM AND TERMINATION . . . . . . . . . . . . . . . . . . . . . 26
Section 7.1 Effective Date. . . . . . . . . . . . . . . . 26
Section 7.2 Term. . . . . . . . . . . . . . . . . . . . . 26
Section 7.3 Triggering Events . . . . . . . . . . . . . . 27
Section 7.4. Causes of Dissolution . . . . . . . . . . . . 28
Section 7.5. Election of Non-Triggering
Party . . . . . . . . . . . . . . . . . . . . 29
Section 7.6 Noncompetition; Nonsolicitation . . . . . . . 29
Section 7.7. Name. . . . . . . . . . . . . . . . . . . . . 30
Section 7.8. Rights Under Associated
Agreements. . . . . . . . . . . . . . . . . . 30
Article 8. MISCELLANEOUS. . . . . . . . . . . . . . . . . . . . . . . . . 31
Section 8.1. Force Majeure. . . . . . . . . . . . . . . . 31
Section 8.2. Assignment . . . . . . . . . . . . . . . . . 31
Section 8.3. Survival . . . . . . . . . . . . . . . . . . 31
Section 8.4. Notices. . . . . . . . . . . . . . . . . . . 32
Section 8.5. Export Control . . . . . . . . . . . . . . . 33
Section 8.6. Arbitration. . . . . . . . . . . . . . . . . 34
Section 8.7. Entire Agreement . . . . . . . . . . . . . . 35
Section 8.8. Modification . . . . . . . . . . . . . . . . 35
Section 8.9. Announcement . . . . . . . . . . . . . . . . 35
Section 8.10. Severability . . . . . . . . . . . . . . . . 35
Section 8.11. No Waiver. . . . . . . . . . . . . . . . . . 36
Section 8.12. Governing Law. . . . . . . . . . . . . . . . 36
Section 8.13. Language . . . . . . . . . . . . . . . . . . 36
Section 8.14. No Agency. . . . . . . . . . . . . . . . . . 36
Section 8.15. No Third Party Beneficiaries . . . . . . . . 37
Section 8.16. Headings . . . . . . . . . . . . . . . . . . 37
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Section 8.17. Construction and Reference . . . . . . . . . 37
Section 8.18. Governmental Approvals . . . . . . . . . . . 37
Section 8.19. Counterparts . . . . . . . . . . . . . . . . 37
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JOINT VENTURE AGREEMENT
Joint Venture Agreement ("Agreement") dated as of
March 30, 1993, by and between ADVANCED MICRO
DEVICES, INC. ("AMD"), a Delaware corporation having its
principal place of business at 901 Thompson Place, Sunnyvale,
California 94088-3453, U.S.A., and FUJITSU LIMITED ("Fujitsu"), a
Japanese corporation having its registered place of business at
1015 Kamikodanaka, Nakahara-ku, Kawasaki-shi, Kanagawa-ken 211,
Japan.
INTRODUCTION
A. AMD is engaged in the manufacture and sale of
integrated circuit devices and has a wide and rich experience in
this field of industry.
B. Fujitsu is also engaged in the manufacture and sale of
integrated circuit devices and has a wide and rich experience in
this field of industry.
C. AMD and Fujitsu desire to form a company with limited
liability (kabushiki kaisha) under the laws of Japan ("JV") for
the purpose of manufacturing certain integrated circuit devices,
such as certain densities of erasable programmable read only
memory ("EPROM") and flash memory ("Flash Memory") as more
specifically defined by this Agreement.
D. AMD and Fujitsu desire to collaborate in developing
certain process technologies and designs to be utilized in
connection with such EPROM and Flash Memory.
E. AMD and Fujitsu desire to license to JV and to cross-
license to each other certain technologies which are necessary
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for JV to manufacture such integrated circuit devices.
ACCORDINGLY, in consideration of the foregoing premises and
the covenants contained herein, the parties agree as follows:
Article 1. DEFINITIONS.
For the purpose of this Agreement, the following terms shall
have the meanings hereinafter set forth:
Section 1.1 "AMD INVESTMENT AGREEMENT" shall have the
meaning set forth in Section 5.E.
Section 1.2 "APPLICABLE LAW" shall mean, with respect to a
party, any domestic or foreign, federal, state or local statute,
law, ordinance, rule, administrative interpretation, regulation,
order, writ, injunction, directive, judgment, decree or other
requirement of any Governmental Authority applicable to such
party or its properties, business or assets.
Section 1.3 "ARTICLES OF INCORPORATION" shall mean articles
of incorporation of JV written in the Japanese language and
attached hereto as Exhibit A-1, as amended from time to time.
For the convenience of the parties an English translation of the
Articles of Incorporation is attached hereto as Exhibit A-2.
Section 1.4 "ASSOCIATED AGREEMENTS" shall have the meaning
ascribed to such term in Article 5.
Section 1.5 "BOARD OF DIRECTORS" shall mean the board of
directors of JV as from time to time constituted pursuant to the
terms of this Agreement.
Section 1.6 "BUSINESS PLAN" shall mean a business plan of
JV agreed to in writing by both parties hereto, as from time to
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time amended by a resolution of the Board of Directors.
Section 1.7 "COMBINED FINANCIAL CONTRIBUTION" shall mean,
with respect to a party, the sum of (i) capital contributions
made by such party pursuant to Section 2.4, (ii) loans to JV
guaranteed by such party pursuant to Sections 4.1.C. and 4.1.D.
and (iii) loans made directly to, or otherwise arranged by, such
party pursuant to Section 4.1.E.
Section 1.8 "CONFIDENTIAL INFORMATION" shall mean any trade
secrets, know-how, data, formulas, processes, intellectual
property or other information, tangible or intangible, of one
party that becomes known by the other party.
Section 1.9 "EFFECTIVE DATE" shall mean the latest to occur
of (a) the date of this Agreement, (b) the date on which all
requisite Governmental Approvals have been obtained, or (c) the
first date on which all of the Associated Agreements, other than
the Joint Venture License Agreement, are in effect.
Section 1.10 "EPROM" or "Electrically Programmable Read
Only Memory" shall mean a non-volatile semiconductor memory
device incorporating floating gate structure cells, which device
is electrically programmable and erasable by using ultraviolet
light. The device mainly consists of such floating gate
structure cells with auxiliary logic circuits, if any, when such
logic circuits are used solely for memory operation or interface
to other products. OTPROM or One Time PROM, which is a certain
non-volatile semiconductor device incorporating the same chip as
EPROM and packaged without transparent windows for ultraviolet
light, shall be included in the definition of EPROM.
Section 1.11 "FLASH MEMORY" shall mean a non-volatile
semiconductor memory device incorporating floating gate structure
cells, which device is programmable and erasable by electrically
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injecting and electrically discharging electric charges into and
from floating gates. The device mainly consists of such floating
gate structure cells, with auxiliary logic circuits, if any, when
such logic circuits are used solely for memory operation or
interface to other products.
Section 1.12 "FUJITSU INVESTMENT AGREEMENT" shall have the
meaning set forth in Section 5.D.
Section 1.13 "GOVERNMENTAL APPROVALS" means all approvals,
consents, authorizations and similar actions from all
Governmental Authorities that the parties agree are desirable in
order to consummate the transactions contemplated hereunder or
under any of the Associated Agreements.
Section 1.14 "GOVERNMENTAL AUTHORITY" shall mean any
foreign, domestic, federal, territorial, state or local
governmental authority, quasi-governmental authority, court,
government or self-regulatory organization, commission, tribunal,
organization or any regulatory, administrative or other agency,
or any political or other subdivision, department or branch of
any of the foregoing.
Section 1.15 "INDEPENDENT ACCOUNTING FIRM" shall mean a
certified public accountant at audit firm qualified under the
Japanese Certified Public Accountants Act, Law No. 103, 1948, as
amended.
Section 1.16 "INVESTMENT AGREEMENTS" shall have the meaning
set forth in Section 5.E.
Section 1.17 "JOINT DEVELOPMENT AGREEMENT" shall have the
meaning set forth in Section 5.A.
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Section 1.18 "JOINT VENTURE LICENSE AGREEMENT" shall have
the meaning set forth in Section 5.C.
Section 1.19 "JV PRODUCT" shall mean any product listed as
a JV Product in the Joint Development Agreement, or so designated
by the Board of Directors.
Section 1.20 "LAND LEASE" shall have the meaning set forth
in Section 4.2.A.
Section 1.21 "NONDISCLOSURE AGREEMENTS" shall mean the
Nondisclosure Agreements between Fujitsu and AMD dated March 12,
1992 and July 20, 1992 and the Confidentiality Agreement between
Fujitsu and AMD dated October 16, 1992.
Section 1.22 "PERCENTAGE INTEREST" shall mean with respect
to a party, the percentage of JV's issued and outstanding shares
held by such party.
Section 1.23 "REGULATIONS OF THE BOARD OF DIRECTORS" shall
have the meaning set forth in Section 3.4.F.
Section 1.24 "TECHNOLOGY CROSS-LICENSE AGREEMENT" shall
have the meaning set forth in Section 5.B.
Article 2. INCORPORATION.
Section 2.1 Formation of JV. Promptly following the
Effective Date, the parties shall form JV in Japan for the
purpose of the production, marketing and sale of JV Products.
Section 2.2 The Name of JV. The name of JV shall be as set
forth in the Articles of Incorporation in Japanese and "Fujitsu
AMD Semiconductor Limited" in English. Fujitsu shall file a
temporary application for registration to reserve JV's Japanese
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name in Japan.
Section 2.3 Articles of Incorporation. The Articles of
Incorporation are hereby incorporated herein and made a part
hereof. In the event of any ambiguity or conflict arising
between the terms and conditions of this Agreement and those of
the Articles of Incorporation, to the extent legally permissible,
the terms and conditions of this Agreement shall prevail.
Section 2.4 Capital Contributions.
A. As soon as practicable following the Effective
Date, each party shall purchase shares of common stock of JV as
follows:
Party Number of Shares Consideration
----- ---------------- -------------
Fujitsu 1,001 Y50,050,000
AMD 999 Y49,950,000
B. Pursuant to a separate schedule to be agreed
between the parties, the parties shall make additional capital
contributions to JV until the parties' aggregate capital
contributions reach Y40,000,000,000, and JV shall issue
additional shares reflecting such contributions. Additional
contributions shall be made by the parties in cash, in proportion
to their respective Percentage Interests.
C. The authorized capital of JV shall initially be
Y400,000,000, to be represented by 8,000 shares of common stock
with a par value of Y50,000 each. Thereafter, the authorized
capital of JV shall be increased from time to time in accordance
with a schedule to be agreed upon between the parties. As
specified in the Business Plan, the maximum authorized capital of
JV shall be Y40,000,000,000, to be represented by 800,000 shares
of such common stock.
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D. Unless otherwise agreed by both parties, Fujitsu
shall hold 50.05%, and AMD 49.95%, of the issued and outstanding
shares of JV. In the event that new shares of JV are issued,
each of the parties shall have the right to purchase such shares
in an amount that is proportionate to its respective Percentage
Interest.
Section 2.5 Reimbursement of Incorporation Expenses. JV
shall reimburse Fujitsu for expenses incurred directly by Fujitsu
in connection with the incorporation of JV to the extent
permitted under the laws of Japan.
Article 3. MANAGEMENT OF JV.
Section 3.1 Meetings and Resolutions of
Shareholders.
A. Each party, in its capacity as a shareholder, shall
have the right from time to time to call a meeting of the
shareholders.
B. The quorum required for a meeting of the
shareholders shall be shareholders representing, in person or by
proxy, not less than two thirds (2/3) of the total number of
issued and outstanding shares of JV.
C. Unless otherwise required by the laws of Japan or
otherwise explicitly provided herein, no shareholders'
resolutions shall be effective unless adopted by the affirmative
votes of shareholders holding a majority of the shares present at
a meeting of the shareholders.
D. Resolutions with respect to the following matters
shall be adopted by the affirmative vote of shareholders
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] of the issued and outstanding
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shares of JV:
(1) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(2) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
E. Interpreters may attend meetings of shareholders
upon the request of either party.
Section 3.2 Election of Directors and Statutory
Auditors.
A. JV shall be administered by a Board of Directors composed of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] directors, [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] directors of whom shall
be nominated by AMD, and [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of whom shall be [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of whom shall be nominated by Fujitsu.
B. If a vacancy occurs on the Board of Directors, a
new director shall be nominated by the party that nominated the
director whose office has been vacated, and an election to fill
such vacancy shall be held at a shareholders' meeting to be
called without delay.
C. JV shall have two (2) statutory auditors
(kansayaku), [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. The
full-time statutory auditor (jookin kansayaku) shall be the
statutory auditor nominated by Fujitsu.
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D. The parties agree to exercise their respective
voting rights as shareholders of JV so as to ensure that the
persons nominated as directors and statutory auditors by the
parties are elected.
E. Each individual nominated by one party as a
director or statutory auditor shall be subject to the reasonable
approval of the other party.
Section 3.3 Representative Directors and
Directors with Titles.
A. JV shall have a chairman and a vice chairman, each
of whom shall be a representative director. The chairman shall
be nominated by Fujitsu and the vice chairman by AMD.
B. Two full-time standing directors (jookin
torishimariyaku) shall be elected from among the directors
nominated by Fujitsu. The Board of Directors shall determine
whether such full-time standing directors shall be representative
directors and/or directors with titles such as president,
executive vice president, executive director or managing
director.
C. Each of the parties shall cause the directors it
has nominated to exercise their voting rights as members of the
Board of Directors so as to effect the election of the chairman,
vice chairman, representative directors and directors with titles
in accordance with Sections 3.3.A. and B. above.
Section 3.4 Meetings and Resolutions of the Board
of Directors.
A. A regular meeting of the Board of Directors shall
be held once each calendar quarter.
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B. The chairman, the vice chairman, or any two
directors acting together shall have the right to call, from time
to time, a special meeting of the Board of Directors.
C. The quorum required for a meeting of the Board of
Directors shall be two thirds (2/3) of all the directors of JV.
D. Resolutions of the Board of Directors shall be
adopted by the affirmative vote of a majority of the members of
the Board of Directors present at a meeting, except as provided
in Section 3.4.E. below.
E. Resolutions with respect to the following matters
shall be adopted by the affirmative vote of [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] of the entire Board of Directors:
(1) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(2) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(3) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(4) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
(5) Approval of:
a. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
b. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
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c. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
d. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
e. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
f. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
g. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
h. [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
(6) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(7) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(8) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(9) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(10) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
(11) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
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F. Following the formation of JV, the Board of
Directors shall adopt Regulations of the Board of Directors
written in the Japanese language, in the form of Exhibit B-1
hereto (the "Regulations of the Board of Directors"). For the
convenience of the parties, an English translation of such
Regulations is attached hereto as Exhibit B-2.
G. When any issue cannot be resolved by the Board of
Directors at two consecutive meetings, the managements of AMD and
of Fujitsu (Electronic Devices Group, or its successor) shall
consult with each other in a good faith attempt to resolve such
issue.
H. Interpreters may attend meetings of the Board of
Directors upon the request of either party.
Section 3.5 Statement of Policy.
A. The business and affairs of JV shall be carried on
and conducted in a sound, prudent and constructive manner for the
purpose of building a successful and financially strong JV
corporation.
B. The day-to-day operations of JV shall be managed by
the full-time standing directors nominated and elected under
Section 3.3.B. above. Such operations shall be conducted in
accordance with this Agreement, the Business Plan and the
operating and capital budgets approved by the Board of Directors.
Section 3.6 Manufacturing Activity. JV shall construct a
semiconductor wafer fabrication facility capable of mass
production with eight-inch wafer line, and shall manufacture JV
Products in accordance with the Business Plan.
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Section 3.7 [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION].
Section 3.8 Accounting and Reporting
Obligations.
A. JV's fiscal year shall be the twelve (12)
month period ending on March 31. Japanese accounting principles
shall be adopted.
B. JV shall provide the following reports and
statements to the parties in English and Japanese within the time
periods set forth below:
(i) Within twenty (20) days after the closing of each
month, a report on booking and billing monthly results, balance
sheet, profit and loss statement, cash flow, head count and
business operations.
(ii) Within thirty (30) days after the closing of each
quarter, a report on booking and billing quarterly results,
balance sheet, profit and loss statement, cash flow, head count,
financial change and business operations.
(iii) Within three (3) months after the end of each
fiscal year, a report on booking and billing annual results,
balance sheet, profit and loss statement, cash flow, inventory
of major properties, head count, shareholders' equity, business
operation, and annual proposals governing appropriation of
profits or covering losses.
C. The parties agree that JV shall designate Fujitsu's
Independent Accounting Firm, as approved by Fujitsu's
shareholders, as the Independent Accounting Firm of JV, unless
otherwise determined by the affirmative vote of shareholders
holding not less than two-thirds (2/3) of the issued and
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outstanding shares of JV.
D. The annual accounting report of JV shall be audited
at the expense of JV by its Independent Accounting Firm in
accordance with the laws of Japan.
E. Each party shall, upon reasonable written notice to
JV and to the other party, have access to JV's books, records,
procedures, employees and similar sources of data and information
concerning JV's financial operations.
F. Upon reasonable written notice to JV and the other
party, but not more often than once every twelve (12) months,
each party shall have a right to perform a special audit of JV by
independent outside auditors, at that party's own cost. In
addition, upon such reasonable notice each party shall have the
right to perform or have performed, at that party's own cost,
such audits as are necessary to meet such party's financial
reporting obligations.
G. The JV shall provide to each party full access to
the books and records of JV, and shall provide to each party the
accounting information such party requires to comply with its own
financial reporting requirements, provided that any cost involved
in providing such information shall be paid by the requesting
party.
H. The JV shall have the right, and each party hereto
shall have the right to compel JV, to have independent outside
auditors, upon reasonable written notice to the other party and
not more than once each twelve (12) months, at JV's cost, examine
the books and records of the other party for the purpose of
auditing the calculation of sales proceeds or any amounts due to
JV.
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Article 4. RIGHTS AND OBLIGATIONS OF THE PARTIES.
Section 4.1 Financing.
A. Except as otherwise explicitly agreed, the parties
shall bear equal responsibility for financing JV.
B. Both parties recognize that, in addition to the
capital contributions made pursuant to Section 2.4 above, JV will
need additional sums for working capital and for long term
capital, which shall be borrowed by JV pursuant to arrangements
to be made by the parties.
C. Until JV becomes self-financing, the parties shall
guarantee third-party loans made to JV in proportion to their
respective Percentage Interests.
D. Both parties shall use their best efforts to
arrange for JV to receive loans from Japanese government-related
financial institutions for JV's long-term capital. Such loans
shall be guaranteed by the parties in proportion to their
respective Percentage Interests.
E. In the event that JV is unable to secure necessary
financing, the parties themselves shall advance the necessary
funds to JV, each party lending that portion of the required
amount which is proportionate to such party's Percentage
Interest. Each party may arrange third-party financing, with or
without such party's guaranty, in lieu of any such advance.
Section 4.2 Land Lease.
A. JV shall construct its semiconductor wafer
fabrication facility on land to be leased from Fujitsu pursuant
to a 30-year lease (the "Land Lease"), which lease may be renewed
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20
for additional terms in accordance with Japan's Land and House
Leasing Act of 1991, as amended, and the terms and conditions of
such lease agreement.
B. (i) If all, or substantially all, of the assets of
JV are to be offered for sale (whether in connection with a
dissolution of JV or otherwise) Fujitsu shall have the right to
purchase JV's fabrication facility at a price equal to the book
value of such facility, as determined by JV's Independent
Accounting Firm as of the close of the preceding quarter, and
shall be given written notice of such intended sale not less than
one hundred and twenty (120) days prior to any such offering for
sale. Fujitsu shall either exercise or decline to exercise such
right, by a written statement delivered within one hundred and
twenty (120) days following the receipt of such notice. Failure
to deliver such notice within such period shall be considered a
declination by Fujitsu. If Fujitsu declines to exercise such
right to purchase, it will consent to the assignment of JV's
interest under the Land Lease to the purchaser of such assets.
(ii) AMD will take all action necessary to assure
that if it transfers shares of JV to any person or entity other
than Fujitsu or a wholly-owned subsidiary of Fujitsu, the
transferee shall agree in writing that Fujitsu shall be entitled
to exercise a right of first refusal to acquire all, but not less
than all, of the JV shares to be so transferred, at the purchase
price at which the transferee intends to sell such shares. AMD
agrees to review with Fujitsu the precise language to be
incorporated in appropriate documentation under the
circumstances, in an effort to perfect such statement of rights
to Fujitsu's reasonable satisfaction. Such documentation will
include a provision that if Fujitsu declines to acquire such
shares: (x) the seller shall be entitled to sell such shares at
the reported price, but not less than the reported price, within
ninety (90) days after the end of the period within which Fujitsu
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may exercise its right to acquire such shares, (y) Fujitsu will
consent to the assignment of JV's interest under the Land Lease,
and (z) Fujitsu shall give such consents as may be required to
continue to operate the facility; provided, however, that Fujitsu
will not be required to incur any expense or obligation in order
to carry out the provisions of this sentence.
Section 4.3 Transfer of Shares;
Right of First Refusal.
A. Except as otherwise explicitly provided in Section
4.2 or 7.5, no share or any interest therein in JV shall be
validly sold, transferred or otherwise disposed of for
consideration or otherwise, and no purported transferee shall be
recognized as a shareholder of JV for any purpose whatsoever
unless such transfer is in accordance with this Section 4.3.
B. Neither party shall pledge or otherwise encumber
any of its shares or any interest therein in JV at any time
without the prior written consent of the other party.
C. Neither party shall sell or transfer any shares in
JV for a period of five (5) years following the Effective Date.
In the event that either party (the "Selling Party") desires to
sell or transfer its shares in JV following such five (5)-year
period, it shall first offer to sell the shares to the other
party (the "Nonselling Party") and, upon the request of such
Nonselling Party, to any third party designated by such
Nonselling Party, at a price equal to the lower of (i)
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] or (ii) [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]. No owner of JV shares may sell or transfer
less than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of its shares in JV.
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D. (i) A Nonselling Party to which an offer is made
pursuant to Section 4.3.C. above and/or any third party
designated by such Nonselling Party, shall have one hundred and
twenty (120) days from the date of receipt of the offer, during
which period such Nonselling Party shall have reasonable access
to JV's books and records, within which to accept such offer.
(ii) In the event that the Nonselling Party and/or
its designee do not accept the offer to purchase all of the
Selling Party's shares, the Selling Party may, within ninety (90)
days following the expiration of such one hundred and twenty
(120) day period, seek the Board of Directors' approval, by not
less than [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] votes, of a sale or
transfer of its shares to a specified third party; provided,
however, that in the event that a sale or transfer to such third
party is proposed on terms less favorable to the Selling Party
than the terms of the offer made pursuant to Section 4.3.C.
above, the Nonselling Party and/or a third party designated by
such Nonselling Party shall have the right to purchase the shares
on such less favorable terms, which right may be exercised by
notice to the Selling Party within fourteen (14) days following
the date on which such sale or transfer is proposed to the Board
of Directors.
(iii) In the event that the Nonselling Party and/or
its designee elects to purchase the Selling Party's shares
pursuant to Section 4.3.D. (i) or (ii), payment shall be made
within sixty (60) days of such election.
E. It shall be a condition to any sale or transfer to
any third party other than a third party designated by the
Nonselling Party that such third party upon request of the
Nonselling Party shall become a party to this Agreement, the
Joint Development Agreement, the Joint Venture License Agreement
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and/or any other agreements, and assume such obligations
reasonably deemed by the Nonselling Party to be necessary in
light of the identity and nature of the new shareholder.
F. In the event that either party transfers its shares
in JV pursuant to this Section 4.3, the Nonselling Party shall
have the right to terminate this Agreement and/or either or both
of the Investment Agreements.
G. All offers and acceptances pursuant to this Section
4.3 shall be made by written notice to the other party.
Section 4.4 Transfer of Fujitsu Employees. Fujitsu shall
have the right to designate Fujitsu employees to be transferred
to JV and to determine when such transferred employees shall
return to Fujitsu. AMD acknowledges and agrees that JV shall
accept and release such employees in accordance with Fujitsu's
instructions. It is understood that any retirement allowance
payments made to such employees will be prorated between JV and
Fujitsu based on total years of service.
Section 4.5 Transfer and Assignment of AMD Employees. AMD
may transfer or assign its personnel to JV [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION], subject to the approval of the full-time
standing directors, such approval not to be unreasonably
withheld. It is anticipated that up to
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] individuals or [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] whichever is smaller, of JV employees working in any particular
discipline may be composed of AMD transferees or assignees.
Section 4.6 Confidentiality.
A. Except as expressly authorized by the other party,
each party agrees not to disclose, use or permit the disclosure
or use by others of any Confidential Information unless and to
the extent such Confidential Information (i) is not marked or
designated in writing as confidential and is provided for a
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purpose that reasonably contemplates disclosure to or use by
others, (ii) becomes a matter of public knowledge through no
action or inaction of the party receiving the Confidential
Information, (iii) was in the receiving party's possession before
receipt from the party providing such Confidential Information,
(iv) is rightfully received by the receiving party from a third
party without any duty of confidentiality, (v) is disclosed to a
third party by the party providing the Confidential Information
without a duty of confidentiality on the third party, (vi) is
disclosed by the receiving party despite the exercise of the same
degree of care used by the receiving party to safeguard its own
similar Confidential Information, but the receiving party shall
take all necessary action to prevent any further disclosure,
(vii) is disclosed with the prior written approval of the party
providing such Confidential Information, or (viii) is
independently developed by the receiving party without any use of
the other party's Confidential Information. Information shall
not be deemed to be available to the general public for the
purpose of the exclusion (ii) above with respect to each party
(x) merely because it is embraced by more general information in
the prior possession of recipient or others, or (y) merely
because it is expressed in public literature in general terms not
specifically in accordance with the Confidential Information.
B. In furtherance, and not in limitation of the
foregoing Section 4.6.A., each party agrees to do the following
with respect to any such Confidential Information: (i) exercise
the same degree of care to safeguard the confidentiality of, and
prevent the unauthorized use of, such information as that party
exercises to safeguard the confidentiality of its own
Confidential Information; (ii) restrict disclosure of such
information to those of its employees and agents who have a "need
to know", and (iii) instruct and require such employees,
sublicensees, and agents to maintain the confidentiality of such
information and not to use such Confidential Information except
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25
as expressly permitted herein. Each party further agrees not to
remove or destroy any proprietary or confidential legends or
markings placed upon any documentation or other materials.
C. The foregoing confidentiality obligation shall also
apply to the contents of this Agreement.
D. The obligations under this Section 4.6 shall not
prevent the parties from disclosing the Confidential Information
or terms of this Agreement to any Governmental Authority as
required by law (provided that the party intending to make such
disclosure in such circumstances has given the other party prompt
notice prior to making such disclosure so that the other party
may seek a protective order or other appropriate remedy prior to
such disclosure and cooperates fully with such other party in
seeking such order or remedy).
E. Notwithstanding anything else contained herein,
either party may disclose the catalog specifications generated
under Section 5.3(a) of the Joint Development Agreement to its
potential customers.
F. The obligations under this Section 4.6 shall apply
with respect to any Confidential Information for a period of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] years from the date of
disclosure of such Confidential Information to the other party,
unless with respect to any particular Confidential Information
the providing party in good faith notifies the receiving party
that a longer period shall apply, in which case the obligations
under this Section 4.6 with respect to such Confidential
Information shall apply for such longer period.
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Article 5. ASSOCIATED AGREEMENTS.
The following associated agreements (the "Associated
Agreements") shall be entered into on or prior to the Effective
Date; provided, however, that the Joint Venture License Agreement
only shall be entered into as soon after the Effective Date as is
reasonably practicable:
A. A Joint Development Agreement between AMD and
Fujitsu dated as of March 1993 providing for the joint
development of integrated circuit devices (the "Joint Development
Agreement").
B. A Technology Cross-License Agreement between AMD
and Fujitsu dated as of March 1993 providing for the cross-
licensing of certain of the parties' respective proprietary
semiconductor related intellectual property rights (the
"Technology Cross-License Agreement").
C. A Joint Venture License Agreement among AMD,
Fujitsu and JV dated as of March 1993 (or promptly thereafter)
providing for the license by the parties to JV of certain
proprietary technologies and sublicensable technologies necessary
for manufacturing JV Products (the "Joint Venture License
Agreement").
D. An Investment Agreement between AMD and Fujitsu
dated as of March 1993 providing for the purchase of stock in AMD
by Fujitsu (the "Fujitsu Investment Agreement").
E. An Investment Agreement between Fujitsu and AMD
dated as of March 1993 providing for the purchase of stock in
Fujitsu by AMD (the "AMD Investment Agreement," collectively with
the Fujitsu Investment Agreement, the "Investment Agreements").
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F. Those certain letters from AMD to Fujitsu, signed
by both parties and dated as of March 1993, setting forth the
parties' agreement as to certain matters including the
Governmental Approvals referenced in Section 1.13 of this
Agreement.
Article 6. REPRESENTATIONS AND WARRANTIES
Section 6.1 Representations and Warranties of Fujitsu.
Fujitsu hereby represents and warrants to AMD, as of the date
hereof and as of the Effective Date, as follows:
A. Corporate Organization; Etc. Fujitsu is a
corporation duly organized and validly existing under the laws of
Japan.
B. Authorization; Etc. Fujitsu has full corporate
power and authority to enter into this Agreement and those of the
Associated Agreements to which it is a party and to carry out the
transactions contemplated hereby and thereby. Fujitsu has taken
all action required by law, its articles of incorporation or
otherwise to authorize the execution and delivery of this
Agreement and those of the Associated Agreements to which it is a
party. Each of this Agreement and the Associated Agreements to
which it is a party is or will be the valid and binding
obligation of Fujitsu, subject to receipt of necessary
Governmental Approvals, enforceable in accordance with its
respective terms, except that such enforcement may be subject to
bankruptcy, insolvency, reorganization, moratorium or other
similar laws now or hereafter in effect relating to creditors'
rights and the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable
defenses and to the discretion of the court before which any
proceeding therefor may be brought.
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C. No Violation. Neither the execution and delivery
by Fujitsu of this Agreement and those of the Associated
Agreements to which it is a party, nor the consummation of the
transactions contemplated hereby and thereby, will (i) conflict
with or result in a breach of any provision of Fujitsu's articles
of incorporation, (ii) conflict with or result in the breach of
any term, condition or provision of, or constitute a default
under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon any property or assets of
Fujitsu pursuant to, or otherwise require the consent of any
person under, any agreement or obligation to which Fujitsu is a
party or by which any of its properties or assets may be bound,
or (iii) violate or conflict with any Applicable Law applicable
to Fujitsu or any of its properties or assets, subject to
obtaining the requisite Governmental Approvals.
D. Consents and Approvals of Governmental Authorities.
Except for the Governmental Approvals, no consent, approval or
authorization of, or declaration, filing or registration with,
any Governmental Authority is required to be obtained by Fujitsu
in connection with the execution, delivery and performance of
this Agreement and those of the Associated Agreements to which it
is a party, and the consummation of the transactions contemplated
hereby and thereby.
E. Regulatory Applications. The information provided
by Fujitsu for use in the applications for the Governmental
Approvals will not contain any untrue statement of a material
fact or omit to state a material fact required to be stated
therein or necessary to make the statements therein not
misleading.
Section 6.2 Representations and Warranties of AMD. AMD
hereby represents and warrants to Fujitsu, as of the date hereof
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and as of the Effective Date, as follows:
A. Corporate Organization; Etc. AMD is a corporation
duly organized, validly existing and in good standing under the
laws of the State of Delaware.
B. Authorization; Etc. AMD has full corporate power
and authority to enter into this Agreement and those of the
Associated Agreements to which it is a party and to carry out the
transactions contemplated hereby and thereby. AMD has taken all
actions required by law, its certificate of incorporation and
bylaws or otherwise to authorize the execution and delivery of
this Agreement and those of the Associated Agreements to which it
is a party. Each of the Associated Agreements to which it is a
party and this Agreement is or will be the valid and binding
obligation of AMD, subject to receipt of necessary Governmental
Approvals, enforceable in accordance with their respective terms,
except that such enforcement may be subject to bankruptcy,
insolvency, reorganization, moratorium or other similar laws now
or hereafter in effect relating to creditors' rights and the
remedy of specific performance and injunctive and other forms of
equitable relief may be subject to equitable defenses and to the
discretion of the court before which any proceeding therefor may
be brought.
C. No Violation. Neither the execution and delivery
by AMD of this Agreement and those of the Associated Agreements
to which it is a party, nor the consummation of the transactions
contemplated hereby and thereby, will (i) conflict with or result
in a breach of any provision of the certificate of incorporation
or bylaws of AMD, (ii) conflict with or result in the breach of
any term, condition or provision of, or constitute a default
under, or give rise to any right of termination, cancellation or
acceleration with respect to, or result in the creation of any
lien, charge or encumbrance upon any property or assets of AMD
25
30
pursuant to, or otherwise require the consent of any person
under, any agreement or obligation to which AMD is a party or by
which any of its properties or assets may be bound, or
(iii) violate or conflict with any Applicable Law applicable to
AMD or any of its properties or assets, subject to obtaining the
requisite Governmental Approvals.
D. Consents and Approvals of Governmental Authorities.
Except for the Governmental Approvals, no consent, approval or
authorization of, or declaration, filing or registration with,
any Governmental Authority is required to be obtained by AMD in
connection with the execution, delivery and performance of this
Agreement and those of the Associated Agreements to which it is a
party and the consummation of the transactions contemplated
hereby and thereby.
E. Regulatory Applications. The information provided
by AMD for use in the applications for the Governmental Approvals
will not contain any untrue statement of a material fact or omit
to state a material fact required to be stated therein or
necessary to make the statements therein not misleading.
Article 7. TERM AND TERMINATION.
Section 7.1 Effective Date. This Agreement shall come into
force on the Effective Date. If the Effective Date does not
occur within one (1) year of the date hereof, unless otherwise
agreed by the parties, either party may terminate this Agreement
effective upon written notice to the other party.
Section 7.2 Term. The term of this Agreement shall
continue for so long as JV remains in existence, unless earlier
terminated by mutual agreement of the parties or as provided
herein.
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Section 7.3 Triggering Events. The occurrence of any of the
following events shall constitute a triggering event ("Triggering
Event") hereunder on the part of the party with respect to which
such event occurs ("Triggering Party"); and each party shall
inform the other party in writing of the occurrence of any
Triggering Event when known to such party.
A. A material breach of this Agreement, the AMD
Investment Agreement, the Fujitsu Investment Agreement, the Joint
Development Agreement or the Joint Venture License Agreement by
the Triggering Party, or a material misrepresentation by the
Triggering Party with respect to any condition, warranty,
representation or agreement contained in this Agreement, the AMD
Investment Agreement, the Fujitsu Investment Agreement, the Joint
Development Agreement or the Joint Venture License Agreement is
not cured within ninety (90) days after the Triggering Party
receives written notice thereof from the non-Triggering Party;
provided that failure by either party to comply with the terms of
Section 4.1.E. shall not be considered a material default until
the earlier of (a) an aggregate of [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] months of delay, or (b) the non-complying party is in
default of a payment obligation that allows creditors to
accelerate the maturity date of indebtedness in an amount in
excess of [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of such party's
shareholders' equity.
B. A Triggering Party becomes the subject of a
voluntary or involuntary petition in bankruptcy or any proceeding
relating to insolvency, or composition for the benefit of
creditors, which petition or proceeding is not dismissed within
sixty (60) days after filing.
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C. A Triggering Party assigns all or substantially all
of the assets of its semiconductor business to any third party,
or incurs in one transaction or series of related transactions a
change in ownership of more than [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of its capital stock.
D. A third party (other than a bank, insurance company
or other financial or investment company or institution) acquires
a greater than [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] ownership
interest in a Triggering Party and either a seat on the board of
directors or a position of management in such party where such
acquisition of ownership and management position or seat on the
board of directors in such Triggering Party is judged by the non-
Triggering Party after careful consideration to be detrimental.
E. The Percentage Interest of the Triggering Party
falls to one third (1/3), or less.
F. A change occurs in the management of the Triggering
Party as a result of a proxy solicitation contest, which change
is judged by the non-Triggering Party after careful consideration
to be detrimental to the affairs of JV.
Section 7.4. Causes of Dissolution.
JV shall be dissolved if:
A. A Triggering Event has occurred and the non-
Triggering Party elects to dissolve JV as provided in
Section 7.5.A.(ii)
B. The parties mutually agree to dissolve JV.
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Section 7.5. Election of Non-Triggering Party.
A. Upon the occurrence of a Triggering Event, the non-
Triggering Party shall have the right:
(i) to acquire the Triggering Party's shares of JV
at a price equal to the lesser of (a) [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] or (b) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION];
(ii) to dissolve JV;
(iii) to terminate this Agreement;
(iv) to terminate either or both of the Investment
Agreements; and/or
(v) to pursue any other right or remedy available
to it.
B. In addition to the remedies set forth in Section 7.5.A. above,
upon the occurrence of a breach by one party of its obligations pursuant to
Section 2.4., 4.1.C., 4.1.D. or 4.1.E., the other party may elect, by notice to
the party in breach, to [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]. Said notice shall be
effective to require such [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] 90 days after such
notice is given, provided that the party in breach shall be entitled to
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] prior to the effective date. Following such [CONFIDENTIAL
INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] as follows (i) [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] then (ii) each
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]. If and when a party [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] completely cures
the breach that caused the [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] it may cause a
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] prior to the breach by giving notice to JV and the other
party. Said notice shall be effective upon receipt, and shall substantiate the
factual basis for such a [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to the breach; provided that
the other party shall be entitled to [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] prior to giving
such notice.
C. The non-Triggering Party may exercise its rights
pursuant to Section 7.5.A. and/or Section 7.5.B. at any time
within one hundred and eighty (180) days after becoming aware of
a Triggering Event.
Section 7.6 Noncompetition; Nonsolicitation. If either
party sells its shares in JV within ten (10) years after the
Effective Date, whether pursuant to Section 4.3 or
Section 7.5.A., for a period of two (2) years following such
sale, such party shall be precluded from (a) manufacturing any
EPROM or Flash Memory device that is or may be competitive with
JV and is manufactured using wafer processes with geometries of
0.5 micron or less and that embodies, incorporates or is subject
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34
to any intellectual property right owned by the other party or
developed pursuant to the Joint Development Agreement or the
Joint Venture License Agreement, or (b) employing, soliciting for
employment or recommending for employment any person employed by
JV (excluding employees transferred to JV from either Fujitsu or
AMD who return to the party that transferred him or her). So
long as a party holds shares in JV, except as otherwise agreed by
the parties, such party shall be prohibited from (x)
manufacturing any EPROM or Flash Memory device that is or may be
competitive with JV and is manufactured using wafer processes
with geometries of 0.5 micron or less, or (y) employing,
soliciting for employment or recommending for employment any
person employed by JV (excluding employees transferred to JV from
either Fujitsu or AMD who return to the party that transferred
him or her). Notwithstanding the foregoing, if either party
sells its shares in JV, whether pursuant to Section 4.3 or
Section 7.5.A., such party shall be entitled to continue to
receive JV Products from JV and to sell JV Products to the extent
necessary in order to fulfill such party's commitments pursuant
to purchase orders issued by such party's customers and accepted
by such party prior to the date on which such party ceased to be
a shareholder.
Section 7.7. Name. In the event that either party sells
its shares in JV, whether pursuant to Section 4.3 or
Section 7.5.A., the name of JV shall promptly be amended to
eliminate any reference to such party.
Section 7.8. Rights Under Associated Agreements. The rights
and obligations of any Triggering Party under any of the
Associated Agreements, and any other agreements ancillary to JV's
operation, shall be specified in those agreements.
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Article 8. MISCELLANEOUS.
Section 8.1. Force Majeure. Neither party shall be liable
for failure to perform, in whole or in material part, its
obligations under this Agreement or any Associated Agreement if
such failure is caused by any event or condition not existing as
of the date of this Agreement and not reasonably within the
control of the affected party, including without limitation, by
fire, flood, typhoon, earthquake, explosion, strikes, labor
troubles or other industrial disturbances, unavoidable accidents,
war (declared or undeclared), acts of terrorism, sabotage,
embargoes, blockage, acts of Governmental Authorities, riots,
insurrections, or any other cause beyond the control of the
parties; provided, that the affected party promptly notifies the
other party of the occurrence of the event of force majeure and
takes all reasonable steps necessary to resume performance of its
obligations so interfered with.
Section 8.2. Assignment. Neither this Agreement nor any of
the rights and obligations created hereunder may be assigned,
transferred, pledged, or otherwise encumbered or disposed of, in
whole or in part, whether voluntary or by operation of law, or
otherwise, by either party without the prior written consent of
the other party; provided, however, that each party may assign
its rights to acquire and hold shares in JV to a wholly-owned
subsidiary of such party so long as such assignee remains wholly-
owned, directly or indirectly, by such party. No such assignment
shall relieve the assigning party of any of its obligations
hereunder. This Agreement and the Associated Agreements shall
inure to the benefit of and be binding upon the parties'
permitted successors and assigns.
Section 8.3. Survival. If a party sells all of its shares
in JV, or if JV is dissolved, or if this Agreement is terminated,
the obligations hereunder of each party to the other and to JV
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36
will terminate, except that the obligations of the parties
pursuant to Sections 2.5 ("Reimbursement of Incorporation
Expenses"), 4.2.B. ("Land Lease"), 4.3 ("Transfer of Shares;
Right of First Refusal"), 7.6 ("Noncompetition;
Nonsolicitation"), 8.3 ("Survival"), 8.4 ("Notices"), 8.6
("Arbitration"), 8.7 ("Entire Agreement"), 8.8 ("Modification"),
8.11 ("No Waiver"), 8.12 ("Governing Law"), 8.13 ("Language"),
8.15 ("No Third Party Beneficiaries"), and Article 6
("Representations and Warranties") shall survive indefinitely the
termination of this Agreement. The obligations of the parties
pursuant to Section 4.6 ("Confidentiality") shall survive as
provided in Section 4.6.F.
Section 8.4. Notices. All notices and communications
required, made or permitted hereunder shall be in writing and
shall be delivered by hand or by messenger, or by recognized
courier service (with written receipt confirming delivery), or by
postage prepaid, return receipt requested, registered or
certified airmail, addressed:
If to AMD:
Advanced Micro Devices, Inc.
915 De Guigne Drive
Sunnyvale, CA 94086, USA
Attn: Mr. Gene Conner
Senior Vice President,
Operations
with a copy to:
Thomas W. Armstrong, Esq.
Vice President, General
Counsel and Secretary
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If to Fujitsu:
Fujitsu Limited
Furukawa Sogo Building
6-1, Marunouchi 2-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Mr. Hirohiko Kondo
General Manager
Electronic Devices
Marketing Division
with a copy to:
Fujitsu Limited
Marunouchi Center Bldg.
6-1, Marunouchi 1-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: Mr. Gen Iseki
General Manager
Legal Division
Each such notice or other communication shall for all
purposes hereunder be treated as effective or as having been
given as follows: (i) if delivered in person, when delivered,
(ii) if sent by airmail, at the earlier of its receipt or at
5 p.m. local time of the recipient, on the seventh day after
deposit in a regularly maintained receptacle for the deposit of
airmail, and (iii) if sent by a recognized courier service, on
the date shown in the written confirmation of delivery issued by
such delivery service. Either party may change the address(es)
and/or addressee(s) to whom notice may be given by giving notice
pursuant to this section at least seven (7) days prior to the
date the change becomes effective.
Section 8.5. Export Control. Without in any way limiting
the provisions of this Agreement, each of the parties agrees that
no products procured from or technical information disclosed by
the other party or JV under this Agreement are intended to or
shall be exported or re-exported, directly or indirectly, to any
destination restricted or prohibited by Applicable Law without
necessary authorization by the Governmental Authorities.
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Section 8.6. Arbitration.
A. Any and all disputes arising under or affecting
this Agreement shall be resolved exclusively by confidential
arbitration pursuant to the rules of the Japan Commercial
Arbitration Association in Tokyo, Japan, or such other location
as may be agreed between the parties; provided, however, that the
arbitrators shall be empowered to hold hearings at other
locations within and without Japan. Each of the parties shall
designate one arbitrator and the two arbitrators so designated
shall select the third arbitrator. Arbitration proceedings shall
be conducted in English with simultaneous translation into
Japanese. Among the remedies available to them, the arbitrators
shall be authorized to order the specific performance of
provisions of this Agreement and of the Associated Agreements.
The judgment upon award of the arbitrators shall be final and
binding and may be enforced in any court of competent
jurisdiction including any court of competent jurisdiction in the
United States or Japan, and each of the parties hereto
unconditionally submits to the jurisdiction of such court for the
purpose of any proceeding seeking such enforcement. Subject only
to the provisions of Applicable Law, the procedure described in
this Section 8.6 shall be the exclusive means of resolving
disputes arising under or affecting this Agreement.
B. All papers, documents or evidence, whether written
or oral, filed with or presented to the panel of arbitrators
shall be deemed by the parties and by the arbitrators to be
Confidential Information. No party or arbitrator shall disclose
in whole or in part to any other person any Confidential
Information submitted in connection with the arbitration
proceedings, except to the extent reasonably necessary to assist
counsel in the arbitration or preparation for arbitration of the
dispute. Confidential Information may be disclosed (i) to
attorneys, (ii) to parties, and (iii) to outside experts
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requested by either party's counsel to furnish technical or
expert services or to give testimony at the arbitration
proceedings, subject, in the case of such experts, to execution
of a legally binding written statement that such expert is fully
familiar with the terms of this Section, agrees to comply with
the confidentiality terms of this Section, and will not use any
Confidential Information disclosed to such expert for personal or
business advantage.
Section 8.7. Entire Agreement. This Agreement, the
Associated Agreements and the exhibits hereto and thereto, embody
the entire agreement and understanding between the parties with
respect to the subject matter hereof, superseding, as of the
Effective Date, all previous and contemporaneous communications,
representations, agreements and understandings, whether written
or oral, in existence on the date this Agreement is executed,
including without limitation that certain Memorandum of
Understanding between Fujitsu and AMD dated July 13, 1992 and the
Nondisclosure Agreements. Neither party has relied upon any
representation or warranty of the other party except as expressly
set forth herein or in the Associated Agreements.
Section 8.8. Modification. This Agreement and the
surviving provisions thereof may not be modified or amended, in
whole or part, except by a writing executed by duly authorized
representatives of both parties.
Section 8.9. Announcement. The parties may announce the
existence of the parties' relationship and this Agreement at a
time to be mutually determined. Neither party shall unreasonably
withhold its consent to a time proposed by the other party.
Section 8.10. Severability. If any term or provision of
this Agreement shall be determined to be invalid or unenforceable
under Applicable Law, such provision shall be deemed severed from
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this Agreement, and a reasonable valid provision to be mutually
agreed upon shall be substituted. In the event that no
reasonable valid provision can be so substituted, the remaining
provisions of this Agreement shall remain in full force and
effect, and shall be construed and interpreted in a manner that
corresponds as far as possible with the intentions of the parties
as expressed in this Agreement.
Section 8.11. No Waiver. Except to the extent that a party
hereto may have otherwise agreed in writing, no waiver by that
party of any condition of this Agreement or breach by the other
party of any of its obligations or representations hereunder
shall be deemed to be a waiver of any other condition or
subsequent or prior breach of the same or any other obligation or
representation by the other party, nor shall any forbearance by
the first party to seek a remedy for any noncompliance or breach
by the other party be deemed to be a waiver by the first party of
its rights and remedies with respect to such noncompliance or
breach.
Section 8.12. Governing Law. The validity, construction,
performance and enforceability of this Agreement shall be
governed in all respects by the laws of Japan.
Section 8.13. Language. This Agreement, and the exhibits
and schedules hereto, except for the Articles of Incorporation
and the Regulations of the Board of Directors, are in the English
language, which language shall be controlling in all respects.
The Articles of Incorporation and the Regulations of the Board of
Directors are in the Japanese language, which language shall be
controlling in all respects.
Section 8.14. No Agency. This Agreement shall not
constitute an appointment of either party as the legal
representative or agent of the other party, nor shall either
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party have any right or authority to assume, create or incur in
any manner any obligation or other liability of any kind, express
or implied, against, in the name or on behalf of, the other
party. Nothing herein or in the transactions contemplated by
this Agreement shall be construed as, or deemed to be, the
formation of a partnership by or among the parties hereto.
Section 8.15. No Third Party Beneficiaries. No provisions
of this Agreement or any of the Associated Agreements are
intended to, or shall be construed to, confer upon or give to any
person other than the parties hereto and thereto, any rights,
remedies or other benefits under or by reason of this Agreement
or any Associated Agreement.
Section 8.16. Headings. The section and other headings
contained in this Agreement are for convenience of reference only
and shall not be deemed to be a part of this Agreement or to
affect the meaning or interpretation of this Agreement.
Section 8.17. Construction and Reference. Words used in
this Agreement, regardless of the number or gender specifically
used, shall be deemed and construed to include any other number,
singular or plural, and any other gender, masculine, feminine or
neuter, as the context shall require. Unless otherwise
specified, all references in this Agreement to Sections are
deemed references to be corresponding Sections in this Agreement,
and all references in this Agreement to Exhibits are references
to the corresponding Exhibits attached to this Agreement.
Section 8.18. Governmental Approvals. Each of the parties
shall use its reasonable best efforts to obtain all Governmental
Approvals and shall cooperate with the other in good faith.
Section 8.19. Counterparts. This Agreement may be executed
in counterparts, each of which shall be deemed an original, and
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42
all of which shall be deemed to constitute one and the same
instrument.
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their duly authorized representatives
on the date set forth above.
ADVANCED MICRO DEVICES, INC. FUJITSU LIMITED
/s/ W.J. SANDERS III /s/ TADASHI SEKIZAWA
____________________________ ___________________________
By: W.J. Sanders III By: Tadashi Sekizawa
Title: Chairman and CEO Title: President
Date: March 18, 1993 Date: March 30, 1993
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EXHIBITS
EXHIBIT A-1
Articles of Incorporation
(Japanese language)
EXHIBIT A-2
Articles of Incorporation
(English translation)
EXHIBIT B-1
Regulations of the Board of Directors (Japanese
language)
EXHIBIT B-2
Regulations of the Board of Directors (English
translation)
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Exhibit 10.27(a)
SUBSTITUTE EXHIBIT A-1
Exhibit A-1 to the Joint Venture Agreement is a Japanese language
document. The registrant represents that Exhibit A-2 to the Joint Venuture
Agreement constitutes a fair and accurate English translation of Exhibit A-1.
ADVANCED MICRO DEVICES, INC.
By: /s/ MARVIN D. BURKETT
---------------------------------------
Marvin D. Burkett
Its: Senior Vice President
Chief Administrative Officer
and Secretary, Chief Financial
Officer and Treasurer
45
EXHIBIT A-2
10-K Exhibit 10.27(a)
(TRANSLATION)
ARTICLES OF INCORPORATION
OF
FUJITSU AMD SEMICONDUCTOR K.K.
Chapter 1 General Provisions
Article 1 (Name)
The name of the Company shall be Fujitsu AMD
Semiconductor Kabushiki Kaisha in Japanese and Fujitsu AMD
Semiconductor Limited in English.
Article 2 (Object)
The object of the Company shall be to engage in the
following businesses:
(1) Manufacture and sales of semiconductor integrated
circuits
(2) All business incidental to or associated with the
preceding Item
Article 3 (Location of Head Office)
The Company shall have its head office in Kawasaki-shi,
Kanagawa-ken.
Article 4 (Method of Public Notice)
Public notice of the Company shall be made in the
Official Gazette (Kampo).
46
Chapter 2 Shares
Article 5 (Number of Authorized Shares)
The total number of shares authorized to be issued by
the Company shall be eight thousand (8,000).
Article 6 (Par Value)
All shares to be issued by the Company shall be par
value common stock. The par value of each share shall be fifty
thousand yen (#50,000).
Article 7 (Kinds of Share Certificates)
Kinds of share certificates to be issued by the Company
shall be determined by the Board of Directors.
Article 8 (Restriction on Transfer of Shares)
Transfer of shares of the Company shall be subject to
the approval of [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] of the
entire Board of Directors.
Article 9 (Pre-emptive Right)
1. The shareholders shall have the pre-emptive right
to subscribe to new shares if new shares are issued.
2. The pre-emptive right in the preceding Paragraph
shall not be transferable separately from shares.
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Article 10 (Registration of Transfer of Shares, etc.)
Procedures of registration of transfer of shares,
registration or cancellation of a pledge, registration or
cancellation of a trust, re-issuance of share certificates or
other matters relating to shares of the Company shall be
determined by the Board of Directors.
Article 11 (Registration of Shareholders, etc.)
Shareholders, pledgees, trustees or their statutory
representatives shall notify the Company of their names,
addresses and seal impressions (specimen signature in case of a
foreigner with the custom of signature), or of any change to the
foregoing.
Article 12 (Record Date and Suspension of Entry to
Register of Shareholders)
1. The shareholders whose names are registered in the
register of shareholders at the end of each business term shall
be deemed to have the voting rights at the ordinary general
meeting of shareholders for such business term.
2. If necessity arises, the Company may, in
accordance with a resolution of the Board of Directors and after
giving public notice, set up a record date, whereby the
shareholders or pledgees who are registered at the record date
shall have such rights.
3. In addition to the preceding Paragraphs and if
necessity arises, the Company may, in accordance with a
resolution of the Board of Directors and after giving public
notice, suspend entry to the register of shareholders for a
certain period not exceeding three (3) months.
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Chapter 3 General Meeting of Shareholders
Article 13 (Convocation)
1. An ordinary general meeting of shareholders shall
be convened within three (3) months after the end of each
business term, and an extraordinary general meeting of
shareholders may be convened from time to time if necessity
arises.
2. Meetings of Shareholders shall be convened by the
Chairman or the Vice Chairman in accordance with resolutions of
the Board of Directors.
Article 14 (Place)
Meetings of Shareholders shall be held in the area
where the head office of the Company is located or at any other
place if agreed in writing by all shareholders.
Article 15 (Presiding Officer)
The Director-Chairman shall be the presiding officer of
a general meeting of shareholders. In the event that the
Director-Chairman is unable to perform his or her duties,
Director-Vice Chairman shall act in his or her place.
Article 16 (Notice)
1. Notice calling a general meeting of shareholders
shall be dispatched to each shareholder at least one month before
the day set for such meeting. The notice shall contain date,
time, place and agenda for the meeting.
2. The notice shall be prepared both in Japanese and
English and shall be dispatched to the registered address of each
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shareholder by registered mail. In case of shareholders not
residing in Japan, the notice shall be dispatched by registered
airmail.
3. The notice period provided for in Paragraph 1 may
be shortened to the period provided in the Commercial Code, if
all shareholders agree in writing.
Article 17 (Quorum)
The quorum of general meetings of shareholders shall be
attendance of shareholders having in total two thirds or more of
the total issued and outstanding common shares.
Article 18 (Ordinary Resolutions)
Except as otherwise provided in laws or in Article 19
of these Articles of Incorporation, resolutions at a general
meeting of shareholders shall be adopted by a majority of the
voting shares represented by the shareholders present.
Article 19 (Special Resolutions)
The following resolutions shall be made by the vote of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION] the total issued and
outstanding common shares.
(1) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
(2) [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION]
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Article 20 (Proxy)
An individual acting as a proxy for a shareholder
shall, on a meeting-by-meeting basis, file a proxy with the
Company.
Chapter 4 Directors and Board of Directors
Article 21 (Number of Directors)
1. The Company shall have [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] Directors.
2. In case of vacancy caused by resignation or
otherwise, an extraordinary general meeting shall be promptly
convened in accordance with Articles 13 and 16 of these Articles
of Incorporation to fill the vacancy.
Article 22 (Election)
1. The Directors shall be elected at a general
meeting of shareholders under Article 19 of these Articles of
Incorporation.
2. The Directors shall not be elected by a method of
cumulative voting.
Article 23 (Term of Office)
1. The term of office of a Director shall expire at
the close of the ordinary general meeting of shareholders
covering the last business term within one (1) year after his or
her assumption of office.
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2. The term of office of a Director elected to fill a
vacancy shall be the remainder of the term of office of his or
her predecessor; and provided further that the term of office of
a newly added Director shall be the remainder of the term of
office of the other Directors.
Article 24 (Remuneration)
Remuneration of the Directors shall be determined by a
resolution of shareholders at a general meeting of shareholders.
Article 25 (Representative Directors and Directors with
Special Title)
1. The Company shall, by a resolution of the Board of
Directors, elect one (1) Chairman and one (1) Vice Chairman from
among the Directors. In case of necessity of business, the
Company may have a President, Vice President(s), Executive
Managing Director(s) or Managing Director(s).
2. The Chairman and Vice Chairman shall be
Representative Directors. The Board of Directors may appoint one
or more Representative Directors from among the Directors with
special title provided for in the preceding Paragraph.
3. Representative Directors shall represent the
Company and execute the Company's business in accordance with
resolutions of the Board of Directors. Director-Chairman shall
have the exclusive authority to operate day-to-day business, and
may delegate such authority to a full-time standing (Jokin)
Director provided for in the following Paragraph.
4. Except for Director-Chairman and Director-Vice
Chairman, all Directors with special title are elected from among
the full-time standing Directors.
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Article 26 (Person to Convene)
The Director-Chairman, Director-Vice Chairman or two
(2) Directors may convene a meeting of the Board of Directors.
Article 27 (Presiding Officer)
The Director-Chairman shall be the presiding officer of
a meeting of the Board of Directors. If the Director-Chairman is
unable to perform his or her duties, Director-Vice Chairman shall
act in his or her place.
Article 28 (Notice)
1. Notice calling a meeting of the Board of Directors
shall be dispatched to each Director at least two (2) weeks
before the date set for such meeting. The notice shall contain
date, time, place and agenda for the meeting.
2. The notice shall be prepared both in Japanese and
English and shall be dispatched by registered mail. In case of
Directors not residing in Japan, the notice shall be dispatched
by registered airmail.
3. The notice period provided for in Paragraph 1 may
be shortened or dispensed with, if all Directors agree in
writing.
Article 29 (Place)
Meetings of the Board of Directors shall be held in the
area where the head office of the Company is located or at any
other place if agreed in writing by all Directors.
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Article 30 (Resolutions)
1. Except as provided for by law or by the Articles
of Incorporation, the matters relating to the Board of Directors
shall be governed by the Regulations of the Board of Directors.
2. Resolutions of the Board shall be adopted by a
majority vote of the Directors present at a meeting at which
two-thirds or more of all Directors are present.
Chapter 5 Statutory Auditors
Article 31 (Number of Statutory Auditors)
The Company shall have two (2) Statutory Auditors.
Article 32 (Election)
The Statutory Auditors shall be elected by a resolution
of shareholders at a general meeting of shareholders in
accordance with Article 19 of these Articles of Incorporation.
Article 33 (Term of Office)
1. The term of office of a Statutory Auditor shall
expire at the close of the ordinary general meeting of
shareholders covering the last business term within two (2) years
after his or her assumption of office.
2. The term of office of a Statutory Auditor elected
to fill a vacancy shall be the remainder of the term of office of
his or her predecessor.
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Article 34 (Full-time Standing Statutory Auditor)
The Statutory Auditors shall elect from among
themselves a full-time standing (Jokin) Statutory Auditor.
Article 35 (Remuneration)
Remuneration of the Statutory Auditors shall be
determined by a resolution of shareholders at a general meeting
of shareholders.
Chapter 6 Accounting
Article 36 (Business Term)
The business term of the Company shall commence on
April 1 of each year and shall end on March 31 of the following
year.
Article 37 (Dividends)
Dividends shall be paid to the shareholders and
registered pledgees entered in the register of shareholders as of
the closing date of each business term of the Company.
Chapter 7 Supplementary Provisions
Article 38 (The total number of Shares to be Issued at
Time of Incorporation)
The total number of shares which the Company shall
issue at the time of the incorporation shall be two thousand
(2,000), and all such shares shall be common shares with par
value. The issue price per share of the above-mentioned shares
shall be fifty thousand yen ($50,000 Yen).
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Article 39 (First Business Term)
The first business term of the Company shall,
notwithstanding Article 36 of these Articles of Incorporation,
commence on the date of incorporation of the Company and shall
end on March 31, 1994.
Article 40 (Initial Term of Office of Directors and
Statutory Auditors)
The term of office of the initial Directors and
Statutory Auditors shall, notwithstanding Articles 23 and 33 of
these Articles of Incorporation, expire at the close of the
ordinary general meeting of shareholders covering the last
business term within one (1) year after their assumption of
office.
Article 41 (Name and Address of Promoter)
The name and address of the promoter and the number of
shares subscribed for by the promoter are as follows:
Name and Address of Promoter Number of Share
- - ---------------------------- ---------------
Hirohiko Kondo 1
2-16-1 Tamanawa, Kamakura-shi
Kanagawa, Japan
In order to certify the incorporation of Fujitsu AMD
Semiconductor K.K., these Articles of Incorporation have been
prepared and the promoter has affixed his seal hereto.
, 1993
----------------------
Promoter: Hirohiko Kondo
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10-K Exhibit 10.27(a)
SUBSTITUTE EXHIBIT B-1
Exhibit B-1 to the Joint Venture Agreement is a Japanese language
document. The registrant represents that Exhibit B-2 to the Joint Venture
Agreement constitutes a fair and accurate English translation of Exhibit B-1.
ADVANCED MICRO DEVICES, INC.
By: /s/ MARVIN D. BURKETT
________________________________________
Marvin D. Burkett
Its: Senior Vice President,
Chief Administrative Officer
and Secretary, Chief Financial
Officer and Treasurer
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EXHIBIT B-2
10-K Exhibit 10.27(a)
(TRANSLATION)
FUJITSU AMD SEMICONDUCTOR LIMITED
REGULATIONS OF THE BOARD OF DIRECTORS
As effective on ,1993
(Purpose)
Article 1.
Except as provided for by laws and ordinances or the Articles of
Incorporation, the matters relating to the Board of Directors shall be governed
by these Regulations.
(Composition)
Article 2.
The Board of Directors shall consist of all the Directors.
(Representative Directors and Directors with Titles)
Article 3.
1. A Chairman and a Vice Chairman, each of whom shall be a
Representative Director, shall be elected from among the Directors.
2. Two Full-time Standing Directors (Jookin Torishimariyaku) shall
be elected from among the Directors.
3. One or more additional Representative Directors may be elected
from among the Full-time Standing Directors.
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(Person to Convene)
Article 4.
A meeting of the Board of Directors may be convened by the Chairman,
the Vice-Chairman, or any two Directors acting together.
(Presiding Officer)
Article 5.
1. The Chairman will act as the presiding officer (Gicho) of all
meetings of the Board of Directors; provided that, if the office of the
Chairman is vacant or the Chairman is unable to attend the meeting, the Vice
Chairman will act as the presiding officer.
2. A meeting of the Board of Directors shall be presided over by
the presiding officer.
3. In case the presiding officer mentioned in the foregoing
Paragraph is unable to act, one of the other Directors will act in his place in
accordance with the order previously fixed by a resolution of the Board of
Directors.
(Kind of Meetings)
Article 6.
Meetings of the Board of Directors shall be ordinary meetings and
extraordinary meetings.
(Ordinary Meetings)
Article 7.
An ordinary meeting of the Board of Directors shall be held once each
quarter.
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(Extraordinary Meetings)
Article 8.
1. Extraordinary meetings of the Board of Directors shall be
convened whenever necessary.
2. Any Director may ask the Chairman or the Vice Chairman to
convene an extraordinary meeting showing the agenda and reason to convene a
meeting.
(Notices of Convocation of Meetings)
Article 9.
Notices of convocation of meetings of the Board of Directors shall be
sent in the manner provided for in the Articles of Incorporation.
(Method of Resolutions)
Article 10.
Resolutions of the Board of Directors shall be adopted by the
affirmative vote of a majority of the members of the Board of Directors present
at a meeting where not less than two-thirds (2/3) of all Directors are present.
(Interpreters)
Article 11.
Interpreters may attend meetings of the Board of Directors upon the
request of one of the Directors.
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(Postponement of Meetings of Board of Directors)
Article 12.
1. If the number in attendance at a meeting of the Board of
Directors properly convened is less than the number required for voting as
specified in Articles 10, the presiding officer of the meeting of the Board of
Directors can postpone the meeting of the Board of Directors, specifying a date
at least fourteen (14) days after the date of issuance of the postponement
notices specified in Paragraph 2 of this Article.
2. In the case of postponement specified in the preceding
Paragraph, the presiding officer shall, within two (2) business days after the
date when it was decided to postpone the meeting, issue a written notice to
each Director, stating the date, time and place of reconvocation of the
postponed meeting of the Board of Directors. The provisions of Article 9 shall
be applicable with the necessary modifications to the notices in question.
However, it shall be required that the entire text of the notices in question
must be transmitted by telegram simultaneously to each Director.
(Minutes of Meetings)
Article 13.
Outlines of the deliberations of meetings of the Board of Directors
as well as their results shall be recorded in minutes of meetings in both
Japanese and English. The presiding officer and all the Directors who attended
each meeting shall affix their signatures or their names and seals to them, and
they shall be retained by the Company.
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