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EXHIBIT 10.27(d)
FUJITSU INVESTMENT AGREEMENT
INVESTMENT AGREEMENT
of
FUJITSU LIMITED
investing in
ADVANCED MICRO DEVICES, INC.
March 26, 1993
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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FUJITSU INVESTMENT AGREEMENT
FUJITSU LIMITED
investing in
ADVANCED MICRO DEVICES, INC.
Table of Contents
RECITALS . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
PURCHASES AND SALES OF AMD SHARES. . . . . . . . . . . . . . . 1
1.1 Purchase of AMD Shares . . . . . . . . . . . . . . . 1
1.2 Timing of Purchases. . . . . . . . . . . . . . . . . 2
1.3 Manner of Sale . . . . . . . . . . . . . . . . . . . 3
1.4 Purchase Price(s) of AMD Shares; Limitation on
Total Purchase Price and Total Number of AMD
Shares . . . . . . . . . . . . . . . . . . . . . . . 4
1.5 Suspension of Obligation to Purchase.. . . . . . . . 5
RESTRICTIONS ON RESALE AND VOTING OF AMD SHARES. . . . . . . . 5
2.1 No Rights of Registration, Repurchase, First
Refusal or Redemption. . . . . . . . . . . . . . . . 5
2.2 Restricted Nature of AMD Shares; Legend; Manner and
Timing of Permitted Resales or Transfers . . . . . . 6
REPRESENTATIONS AND WARRANTIES OF THE PARTIES. . . . . . . . . 8
3.1 Representations and Warranties of AMD. . . . . . . . 8
3.2 Representations and Warranties of FUJITSU. . . . . . 8
CONDITIONS TO CLOSINGS OF PURCHASES OF AMD SHARES. . . . . . . 10
4.1 Conditions to AMD's Obligations. . . . . . . . . . . 10
4.2 Conditions to FUJITSU's Obligations. . . . . . . . . 11
MISCELLANEOUS PROVISIONS . . . . . . . . . . . . . . . . . . . 12
5.1 Costs and Expenses. . . . . . . . . . . . . . . . . 12
5.2 Successors and Assigns. . . . . . . . . . . . . . . 12
5.3 Communications. . . . . . . . . . . . . . . . . . . 12
5.4 Entire Agreement; Modification. . . . . . . . . . . 14
5.5 Captions. . . . . . . . . . . . . . . . . . . . . . 14
5.6 Counterparts. . . . . . . . . . . . . . . . . . . . 15
5.7 Severability. . . . . . . . . . . . . . . . . . . . 15
5.8 Governing Law, Language . . . . . . . . . . . . . . 15
5.9 Notice and Correction of Breach . . . . . . . . . . 15
5.10 Dispute Resolution. . . . . . . . . . . . . . . . . 16
5.11 Termination . . . . . . . . . . . . . . . . . . . . 17
5.12 Cooperation; Best Efforts . . . . . . . . . . . . . 17
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FUJITSU INVESTMENT AGREEMENT
This INVESTMENT AGREEMENT (the "Agreement") is made this
26th day of March, 1993 between FUJITSU LIMITED, a Japanese stock
company or kabushiki kaisha ("FUJITSU") and ADVANCED MICRO
DEVICES, INC., a Delaware corporation ("AMD").
RECITALS
WHEREAS, AMD and FUJITSU have entered into a Memorandum of
Understanding dated July 13, 1992 (the "MOU") regarding (a) the
formation, funding and implementation of a joint venture between
AMD and FUJITSU to manufacture integrated circuits and (b) the
purchase by each party of common stock of the other party and/or
its subsidiaries.
ARTICLE I
PURCHASES AND SALES OF AMD SHARES
1.1 Purchase of AMD Shares. Upon the terms and subject to the
conditions set forth in this Agreement, FUJITSU agrees to purchase from AMD,
and AMD agrees to sell to FUJITSU, up to Four Million Five Hundred Thousand
(4,500,000) shares (the "AMD Shares") of the $.01 par value common stock of
AMD (the "AMD Common Stock"); provided that FUJITSU will not be required to
purchase more than five percent (5%) of the issued and outstanding shares of
AMD common stock. The AMD Shares shall be purchased and sold in installments
as set forth in Section 1.2 below, and the exact number of AMD Shares to be
sold and purchased and the price or
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prices at which such AMD Shares shall be sold and purchased shall
be determined pursuant to Section 1.4 below.
1.2 Timing of Purchases. The AMD Shares shall be sold and purchased in
nine (9) installments, as follows: (i) an initial sale and purchase of
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION] shares (the "Initial Purchase") which shall be consummated
within thirty (30) business days following the Effective Date of the Joint
Venture Agreement, dated March 30, 1993, between the parties ("the Joint
Venture Effective Date"), as anticipated in the MOU, and (ii) eight (8)
additional sales and purchases of up to [CONFIDENTIAL INFORMATION OMITTED AND
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION] shares each
(collectively, the "Subsequent Purchases"), to be consummated by two (2) annual
purchases of such amount, the first such purchase to be consummated prior to
the last business day of the sixth (6th) month following the Joint Venture
Effective Date (the "First Subsequent Purchase") and the second annual purchase
to be consummated prior to the last business day of the twelfth (12th) month
following the Joint Venture Effective Date (the "Second Subsequent Purchase"),
with the Third through Eighth Subsequent Purchases being made in the same
manner as the First and Second Subsequent Purchases, i.e., prior to the last
business day of the eighteenth (18th), twenty-fourth (24th), thirtieth (30th),
thirty-sixth (36th), forty-second (42nd) and forty-eighth (48th) months,
respectively, following the Joint Venture Effective Date. Unless the parties
agree otherwise in writing, each of the purchases of AMD Shares authorized by
this Agreement shall be closed at the AMD main corporate offices, currently 915
DeGuigne Drive, Sunnyvale, California, at 9:00 a.m. local time on the date
designated herein for each purchase. If at the time or times scheduled for a
purchase of AMD Shares FUJITSU's financial
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condition is so constrained that it would, in the good faith judgement
of FUJITSU, be imprudent for such purchase to be closed on the scheduled date,
FUJITSU shall notify AMD not less than thirty (30) days prior to the date
scheduled for such purchase. If such notice is given, the parties will
negotiate in good faith to reschedule the closing in question, but the
determination of the purchase price for such closing shall not be affected by
any such rescheduling. Participation in such negotiations shall not affect the
obligations of FUJITSU to effect the aggregate purchases of AMD Shares pursuant
to this section. FUJITSU will not be in default under this Agreement, the
Joint Venture Agreement, or other agreements between the parties, as a result
of failing to meet the closing schedule in question, so long as the aggregate
delay in meeting the original schedule for such purchases (as set forth in this
section 1.2) does not exceed twelve (12) months.
1.3 Manner of Sale. The offer and sale of the AMD Shares to FUJITSU
shall not be registered under Section 4(2) of the Securities Act of 1933, as
amended (the "1933 Act"). The AMD Shares shall not involve a public offering,
but shall be issued pursuant to an exemption under Section 4(2) of the 1933
Act. The AMD Shares when issued in accordance with this Agreement shall be
deemed to be "restricted shares" within the meaning of Rule 144 under the 1933
Act, the resale of which shall comply with applicable provisions of Article II
of the Agreement. The parties agree to cooperate with respect to the closing
of each installment purchase and to deliver and execute all such records,
documents and instruments necessary or desirable to facilitate each such sale
and purchase as either party shall reasonably request.
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1.4 Purchase Price(s) of AMD Shares; Limitation on Total
Purchase Price and Total Number of AMD Shares. The purchase
price of each installment of the AMD Shares shall be payable in
United States dollars by wire transfer or otherwise as AMD shall
reasonably request, and: (i) for the Initial Purchase, shall be
equal to the number of AMD Shares acquired in the installment
times the average of the closing sales prices of AMD common stock
on the New York Stock Exchange for the sixty (60) trading days
ending on the Joint Venture Effective Date, and (ii) for the
First through Eighth Subsequent Purchases, the average of the
closing sales prices on the New York Exchange for the sixty (60)
trading days ending on the twentieth day of the month preceding
the month in which the purchase is scheduled, or if the Exchange
is not open for trading on such date, on the trading day
preceding such date. AMD shall provide FUJITSU with a
calculation of each such purchase price within three days
following the end of the relevant sixty-day period. Such
calculation shall be provided by facsimile, the numbers of which
shall be designated by Fujitsu in advance, as well as pursuant to
section 5.3 below. Notwithstanding the foregoing sentence,
FUJITSU shall not be required, except in its own discretion, to
pay for the AMD Shares acquired in the Initial Purchase and
Subsequent Purchases a total amount in excess of US$100,000,000
or an amount in excess of [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
in any twelve-month period. In the event the total purchase
price of the AMD Shares exceeds US$100,000,000 and FUJITSU elects
not to pay more than US$100,000,000 for the AMD Shares, the
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number of AMD Shares which AMD shall be required to deliver to
FUJITSU shall be reduced proportionately.
1.5 Suspension of Obligation to Purchase. FUJITSU and AMD
are contemporaneously executing a separate agreement providing
for the purchase of Common Stock or bonds of FUJITSU by AMD.
Further, FUJITSU and AMD are parties to a Joint Venture Agreement
pursuant to which each party agrees to advance funds to the joint
venture if the joint venture is unable to secure necessary
financing. If AMD does not make any such advance when required
to do so, FUJITSU's obligations to purchase shares of AMD stock
pursuant to this Agreement shall be suspended until AMD makes
such advances, and the purchase dates and corresponding time
periods used to calculate the purchase prices as specified in
sections 1.2 and 1.4 shall be extended by the number of months
that Fujitsu's purchase obligation was suspended.
ARTICLE II
RESTRICTIONS ON RESALE AND VOTING OF AMD SHARES
2.1 No Rights of Registration, Repurchase, First Refusal or
Redemption. FUJITSU shall have no right at any time to require
AMD to register or qualify the sale of any of the AMD Shares
under the 1933 Act or the securities laws of any state, country
or other jurisdiction, or to include the AMD Shares under any
other registration by AMD of its securities. AMD shall have no
obligation to repurchase the AMD Shares or, except as provided
herein, in any manner to cooperate or assist in the resale of the
AMD Shares by FUJITSU to any other party. The AMD Shares shall
not be subject to redemption by AMD, and AMD shall have no right
or obligation, commonly known as a "right of first refusal" or
"right of first offer," to acquire any of the AMD Shares either
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upon the terms and conditions first agreed upon by and between
FUJITSU and any other party or prior to any such agreement
relating to such terms and conditions.
2.2 Restricted Nature of AMD Shares; Legend; Manner and
Timing of Permitted Resales or Transfers.
(a) The AMD Shares shall be deemed to be "restricted
shares" within the meaning of Rule 144 under the 1933 Act, and
may not be resold, hypothecated, pledged, otherwise encumbered or
transferred by FUJITSU except as provided herein. In order to
assure compliance with this Agreement and with the 1933 Act and
regulations thereunder, AMD before delivering to FUJITSU
certificates representing the AMD Shares shall cause such
certificates to be legended with the following legend to indicate
the restrictions placed upon their resale or transfer:
THE SHARES REPRESENTED BY THIS CERTIFICATE
ARE SUBJECT TO CERTAIN RESTRICTIONS AS SET
FORTH IN AN AGREEMENT DATED MARCH 26, 1993, A
COPY OF WHICH IS ON FILE WITH THE SECRETARY
OF ADVANCED MICRO DEVICES, INC., AND MAY NOT
BE RESOLD PRIOR TO [DATE]*. THE SHARES
REPRESENTED BY THIS CERTIFICATE ARE DEEMED TO
BE RESTRICTED SHARES FOR PURPOSES OF RULE 144
UNDER THE SECURITIES ACT OF 1933, AS AMENDED
(THE "ACT"). NO TRANSFER OF THESE SHARES MAY
BE MADE EXCEPT PURSUANT TO AN EFFECTIVE
REGISTRATION STATEMENT UNDER THE ACT, UNLESS
ADVANCED MICRO DEVICES HAS RECEIVED AN
OPINION OF COUNSEL SATISFACTORY TO IT THAT
SUCH TRANSFER DOES NOT REQUIRE REGISTRATION
UNDER THE ACT.
(b) The AMD Shares shall not be resold or transferred
by FUJITSU except pursuant to a valid and effective registration
- - ----------
* [DATE] refers to the dates specified in 202(c), below
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thereof under the 1933 Act or an exemption from registration
which is available thereunder. AMD and/or its transfer agent
shall have the right to require, prior to resale or transfer
under any such exemption, that FUJITSU provide to AMD and for its
and/or its transfer agent's benefit an opinion of counsel, in
form and substance reasonably satisfactory to AMD, stating and
opining that registration is not required.
(c) Except as provided in subsections (d) and (e)
below, the AMD Shares may not be resold or transferred except in
the following manner. Up to [CONFIDENTIAL INFORMATION OMITTED
AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION]
of the AMD Shares purchased in the Initial Purchase or any
Subsequent Purchase may be resold or transferred at any time
after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH
THE SECURITIES AND EXCHANGE COMMISSION] of the consummation of
such purchase. Up to an additional [CONFIDENTIAL INFORMATION
OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE
COMMISSION] of such shares may be resold or transferred at any
time after [CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY
WITH THE SECURITIES AND EXCHANGE COMMISSION] of the consummation
of such purchase
(d) FUJITSU may tender or sell any of the AMD Shares
then owned by it, without restriction under this Agreement, in
the event of, and in accordance with the terms and conditions of,
(i) a tender or exchange offer for shares of common stock of AMD
commenced by AMD, or (ii) a tender, exchange or other offer for
such shares of common stock commenced by a third party and
approved by the Board of Directors of AMD.
(e) Except for the resales or other transfers
permitted by subsections (c) or (d) above, FUJITSU may not
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transfer any of the AMD Shares to any other person or entity
including an affiliate of FUJITSU, by gift or otherwise, without
the prior written consent of AMD. This restriction shall expire
on the earlier of [CONFIDENTIAL INFORMATION OMITTED AND FILED
SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION], or
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE
SECURITIES AND EXCHANGE COMMISSION].
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE PARTIES
3.1 Representations and Warranties of AMD. Except as
provided in Section 4.2(b) hereof, AMD does not make and shall
not be required to make to FUJITSU any representations or
warranties of any kind in connection with its sale of the AMD
Shares, including but not limited to representations or
warranties regarding the AMD Shares or the financial condition or
results of operations of AMD.
3.2 Representations and Warranties of FUJITSU.
(a) Except as provided in this Section 3.2 and in
Section 4.1(a) hereof, FUJITSU does not make and shall not be
required to make to AMD any representations or warranties of any
kind in connection with its purchases of the AMD Shares.
(b) FUJITSU represents and warrants to AMD as follows:
(i) FUJITSU is and shall be as of the closing
of each of the Initial Purchase and the Subsequent Purchases an
"accredited investor" within the meaning of Rule 501(a)(3) under
the 1933 Act.
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(ii) FUJITSU is acquiring and will acquire the
AMD Shares for its own account for the purpose of investment and
not with a view to or for resale in connection with any
distribution thereof.
(iii) FUJITSU has such knowledge and experience
in financial and business matters as to be capable of evaluating
on its own the merits and risks of investment in the AMD Shares.
(iv) FUJITSU has had opportunity to ask
questions of and receive answers from AMD concerning the terms
and conditions of the offer and sale of the AMD Shares, and to
obtain all additional information from AMD which FUJITSU deems
necessary to verify the accuracy of the information contained in
the following, copies of which (including all exhibits filed with
or incorporated by reference therein except, at AMD's option, any
exhibit with respect to which confidential treatment has been
granted) FUJITSU acknowledges to have received from AMD:
(1) AMD's annual report on Form 10-K
filed with the Securities and Exchange Commission (the
"Commission") for its most recent fiscal year.
(2) AMD's filings with the Commission
on Forms 10-Q and 8-K since the filing of its report on Form 10-K
for the most recent fiscal year.
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ARTICLE IV
CONDITIONS TO CLOSINGS OF PURCHASES OF AMD SHARES
4.1 Conditions to AMD's Obligations. The obligations of
AMD to close the Initial Purchase and the Subsequent Purchases
shall be subject to the fulfillment of the following conditions,
any or all of which may be waived in writing by AMD:
(a) AMD shall have received from FUJITSU an officers'
certificate dated the date of closing in substantially the form
set forth in Exhibit A hereto, signed by an authorized
representative of FUJITSU who is at least department manager
management level ("bucho") or above.
(b) All required consents, clearances and permits of
any governmental entity applicable to the purchase shall have
been obtained and be in effect and not withdrawn, and all
applicable waiting periods shall have expired, including but not
limited to any consents or waiting periods required by the Hart-
Scott-Rodino Antitrust Improvements Act and Section 5021 of the
Omnibus Trade and Competitiveness Act of 1988 (50 U.S.C. App.
Section 2170) and regulations issued by the Department of the
Treasury thereunder.
(c) The Joint Venture Agreement shall have been
executed by the parties and be in full force and effect, and no
notice shall have been given by AMD to FUJITSU of any material
breach of this Agreement or the Joint Venture Agreement by
FUJITSU which shall not have been corrected to the reasonable
satisfaction of AMD.
(d) The agreement relating to the purchase of equity
of FUJITSU by AMD shall have been executed by the parties
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thereto, and no notice shall have been given by AMD to FUJITSU of
any material breach thereof, that shall not have been corrected
to the reasonable satisfaction of AMD.
4.2 Conditions to FUJITSU's Obligations. The obligations
of FUJITSU to close the Initial Purchase and the Subsequent
Purchases shall be subject to the fulfillment of the following
conditions, any or all of which may be waived in writing by
FUJITSU:
(a) AMD shall continue to be listed on the New York
Stock Exchange, NASDAQ, or the American Stock Exchange, or any
successor of such exchange recognized by the U.S. Securities and
Exchange Commission.
(b) FUJITSU shall have received from AMD an officers'
certificate dated the date of closing in substantially the form
set forth in Exhibit B hereto, signed by an authorized
representative of AMD.
(c) All required consents, clearances and permits of
any governmental entity applicable to the purchase shall have
been obtained and be in effect and not withdrawn and all
applicable waiting periods shall have expired, including but not
limited to any consents or waiting periods required by the
Hart-Scott-Rodino Antitrust Improvements Act and Section 5021 of
the Omnibus Trade and Competitiveness Act of 1988 (50 U.S.C. App.
Section 2170) and regulations issued by the Department of the Treasury
thereunder.
(d) The Joint Venture Agreement shall have been
executed by the parties and be in full force and effect, and no
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notice shall have been given by FUJITSU to AMD of any material
breach of this Agreement or the Joint Venture Agreement by AMD
which shall not have been corrected to the reasonable
satisfaction of FUJITSU.
(e) The agreement relating to the purchase of equity
of FUJITSU by AMD shall have been executed by the parties
thereto, and no notice shall have been given by FUJITSU to AMD of
any material breach thereof that shall not have been corrected to
the reasonable satisfaction of FUJITSU.
ARTICLE V
MISCELLANEOUS PROVISIONS
5.1 Costs and Expenses. AMD and FUJITSU each shall bear
their own costs and expenses incurred with respect to this
Agreement, including but not limited to the costs and expenses of
each installment purchase of AMD Shares contemplated hereby.
5.2 Successors and Assigns. This Agreement shall inure to
the benefit of, and be binding upon, the parties hereto and their
respective successors and assigns. This Agreement may not be
assigned by either party without the prior written consent of the
other party.
5.3 Communications. 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 registered or certified airmail (return receipt
requested), addressed:
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(a) If to FUJITSU, to:
FUJITSU LIMITED
Furukawa Sogo Bldg.
6-1, Marunouchi 2-chome
Chiyoda-ku, Tokyo 100, Japan
Attn: 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: Gen Iseki
General Manager, Legal Division
(b) If to AMD, to:
(Mail)
ADVANCED MICRO DEVICES, INC.
P.O. Box 3453
Sunnyvale, CA 94088-3453
Attn: Marvin D. Burkett
Senior Vice President,
Chief Financial Officer
(Hand Delivery)
ADVANCED MICRO DEVICES, INC.
915 DeGuigne Drive
Sunnyvale, CA
With a copy to:
(same addresses as above)
Attn: Thomas W. Armstrong, Esq.
Vice President, General Counsel and
Secretary
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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 pm
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 recognized courier service, on the date shown in
the written confirmation of delivery issued by such delivery
service. Either party may change the addresses and/or addressees
to whom notice must be given by giving notice pursuant to this
section at least seven days prior to the date the change becomes
effective.
5.4 Entire Agreement; Modification. This Agreement and
all exhibits hereto and other documents delivered pursuant hereto
constitute the full and entire understanding and agreement
between the parties with regard to the subject matter hereof, and
neither party shall be liable or bound to the other party in any
manner by any warranties, representations or covenants except as
specifically set forth herein. Except as expressly provided
herein, neither this Agreement nor any term hereof may be
amended, waived, discharged or terminated other than by a written
instrument signed by a corporate officer of the party against
whom enforcement of any such amendment, waiver, discharge or
termination is sought.
5.5 Captions. Headings of the various sections of this
Agreement have been inserted for convenience of reference only
and shall not be relied upon to limit the construction of this
Agreement.
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5.6 Counterparts. This Agreement may be executed in any
number of counterparts, each of which may be executed by fewer
than all of the parties, each of which shall be enforceable
against the parties actually executing such counterparts, and all
of which together shall constitute one instrument.
5.7 Severability. In the event that any provision of this
Agreement becomes or is declared by a court of competent juris-
diction to be illegal, unenforceable or void, this Agreement
shall continue in full force and effect without said provision;
provided, that no such severability shall be effective if it
materially changes the economic impact of this Agreement on any
party.
5.8 Governing Law, Language. This Agreement shall be
governed in all respects by the laws of the United States and the
State of Delaware. This Agreement is in the English language
only, which shall be controlling in all respects. No transla-
tion, if any, of this Agreement into Japanese or any other
language shall be of any force or effect in the interpretation of
this Agreement as to either party hereto or in any determination
of the intent of either of such parties.
5.9 Notice and Correction of Breach. Either party
believing that the other party has materially breached this
Agreement, prior to institution of any proceeding for specific
performance pursuant to Section 5.10, shall give notice to the
other party specifying the nature of the breach and requesting
that it be corrected. If within sixty (60) days after such
notice is given the accused party has not to the satisfaction of
the accusing party responded and materially commenced or
completed the correction of the breach asserted, the party giving
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notice may take such other action permitted to it by this
Agreement or in law or equity.
5.10 Dispute Resolution.
(a) Any and all disputes arising under or
affecting this Agreement or any other agreement to be executed in
accordance herewith shall be resolved, except as expressly
provided otherwise in such other agreement, 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 require specific performance of provisions
of this Agreement. The judgment upon award of the arbitrators
shall be final and binding and may be enforced in 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
and, except as aforesaid, the procedure described in this Section
5.10 shall be the exclusive means of resolving disputes arising
under or affecting this Agreement and all other agreements to be
executed in accordance herewith.
(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
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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
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 agrees to
comply with the confidentiality terms of this Section, and that
such expert will not use any confidential information disclosed
to such expert for personal or business advantage.
5.11 Termination. If either party transfers its shares in
the Joint Venture pursuant to the Joint Venture Agreement, or is
a Triggering Party under the Joint Venture Agreement, the other
party shall have the right to terminate this Agreement. This
agreement may be terminated by either party pursuant to the
rights given it under subsection 7.5.A of the Joint Venture
Agreement.
5.12 Cooperation; Best Efforts. The parties agree to
cooperate and to use their best efforts to consummate all
purchases of AMD Shares authorized by this Agreement. Such
cooperation shall include, but not be limited to, the diligent
and prompt filing and pursuit of all governmental consents,
reviews or clearances required by law to be obtained by either
party with respect to any or all of the Initial Purchase and the
Subsequent Purchases.
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IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed by their duly authorized officers
as of the day and year first above written.
FUJITSU LIMITED
By /s/ HIKOTARO MASUNAGA
____________________________
Hikotaro Masunaga
ADVANCED MICRO DEVICES, INC.
By /S/ MARVIN D. BURKETT
_____________________________
Marvin D. Burkett
Chief Financial Officer
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EXHIBIT A
CLOSING CERTIFICATE OF OFFICERS
OF
FUJITSU LIMITED
I am the duly elected, qualified and acting
______________________ (bucho) of Fujitsu Limited, a Japanese stock
company ("Fujitsu").
I hereby certify that, to the best of my knowledge, the
representations and warranties contained in section 6.1 of the
Joint Venture Agreement by and between Advanced Micro Devices, Inc.
and Fujitsu, Limited, dated ___________ and the representations and
warranties contained in section 3.2 of the Investment Agreement of
Fujitsu Limited into Advanced Micro Devices, Inc., dated
____________, remain true and correct as of the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate on this
___ day of ____________, 199__.
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EXHIBIT B
CLOSING CERTIFICATE OF OFFICERS
OF
ADVANCED MICRO DEVICES, INC.
I am the duly elected, qualified and acting
______________________, of Advanced Micro Devices, Inc., a Delaware
corporation ("AMD").
I hereby certify that, to the best of my knowledge, the
representations and warranties contained in section 6.2 of the
Joint Venture Agreement by and between Advanced Micro Devices, Inc.
and Fujitsu, Limited, dated __________, and the representation and
warranties contained in section 3.1 of the Investment Agreement of
Fujitsu Limited into Advanced Micro Devices, Inc., dated
____________, remain true and correct as of the date hereof.
IN WITNESS WHEREOF, I have executed this Certificate on this
___ day of ________, 199___.
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