EXHIBIT 10.104
CONFIDENTIAL TREATMENT:
MICRON TECHNOLOGY, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS DOCUMENT, WHICH ARE INDICATED BY ASTERISKS, BE AFFORDED CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. MICRON TECHNOLOGY, INC. HAS SEPARATELY FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE COMMISSION.
2012 MASTER AGREEMENT
BY AND AMONG
INTEL CORPORATION,
INTEL TECHNOLOGY ASIA PTE LTD,
MICRON TECHNOLOGY, INC.,
MICRON SEMICONDUCTOR ASIA PTE. LTD.,
IM FLASH TECHNOLOGIES, LLC
AND
IM FLASH SINGAPORE, LLP
FEBRUARY 27, 2012
TABLE OF CONTENTS
Page
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ARTICLE 1 .
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DEFINITIONS
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1
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1.1
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Definitions
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1
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ARTICLE 2 .
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CONTRACTS AND DISTRIBUTIONS
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2
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2.1
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Pre-Existing Concluded Contracts Between Certain Parties
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2
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2.2
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Pre-Existing Contracts to be Terminated by Certain Parties
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2
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2.3
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Pre-Existing Contracts Continuing Between Certain Parties
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2
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2.4
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Contemporaneously Executed Contracts Between the Parties
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2
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2.5
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Amended Contracts Between Certain Parties
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2
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2.6
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Contracts to be Entered into by Certain Parties
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2
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2.7
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Asset Transactions to be Entered into by Certain Parties
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2
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2.8
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Distributions to IMFT and IMFS Members; Post-Closing IMFS Matters
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3
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2.9
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Member Approvals and Authorizations
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6
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ARTICLE 3 .
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REPRESENTATIONS AND WARRANTIES
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7
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3.1
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Intel Representations
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7
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3.2
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Intel Singapore Representations
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8
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3.3
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Micron Representations
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9
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3.4
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Micron Singapore Representations
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10
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3.5
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IMFT Representations
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12
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3.6
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IMFS Representations
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13
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ARTICLE 4 .
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COVENANTS
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14
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4.1
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Reasonable Efforts
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14
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4.2
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Governmental Filings
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14
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4.3
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Further Assurances
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15
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4.4
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Confidentiality
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15
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4.5
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Public Announcements
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15
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4.6
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Legally Compelled Disclosures
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15
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4.7
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Continuity and Maintenance of Operations
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16
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4.8
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Certain Deliveries and Notices
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16
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4.9
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Damage to MTV Premises
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16
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4.10
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Physical Counts
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17
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4.11
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Fixed Asset Reconciliation
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19
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4.12
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Failure to Obtain ****
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20
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4.13
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****
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21
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ARTICLE 5.
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CLOSING
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21
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5.1
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Closing
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21
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5.2
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Conditions to the Obligations of the Parties
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21
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5.3
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Closing Deliverables
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23
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ARTICLE 6.
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INDEMNIFICATION
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24
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6.1
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Survival
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24
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6.2
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Indemnification
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24
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6.3
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Procedures
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26
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6.4
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Specific Performance
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27
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6.5
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Treatment of Indemnification Payments; Insurance Recoveries
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27
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6.6
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Certain Additional Procedures
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28
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6.7
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Remedies
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28
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ARTICLE 7.
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TERMINATION; ALTERNATIVE TRANSACTION
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28
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7.1
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Termination
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28
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7.2
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Alternative Transaction.
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29
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ARTICLE 8.
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MISCELLANEOUS
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30
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8.1
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Limitation of Liability
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30
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8.2
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Exclusions and Mitigation
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30
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8.3
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Notices
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30
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8.4
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Waiver
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32
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8.5
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Assignment
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32
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8.6
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Third Party Rights
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32
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8.7
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Choice of Law
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32
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8.8
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Jurisdiction and Venue; Waiver of Jury Trial
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32
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8.9
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Dispute Resolution
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33
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8.10
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Headings
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34
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8.11
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Entire Agreement
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34
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8.12
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Severability
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34
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8.13
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Counterparts
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35
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8.14
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Expenses
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35
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8.15
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Certain Interpretive Matters
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35
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Appendix A Definitions
2012 MASTER AGREEMENT
This
2012 MASTER AGREEMENT
(together with
Appendix A
hereto, this “
Agreement
”) is made and entered into as of this 27th day of February, 2012, by and among Intel Corporation, a Delaware corporation (“
Intel
”), Intel Technology Asia Pte Ltd, a private limited company organized under the laws of Singapore (“
Intel Singapore
” and, together with Intel, the “
Intel Parties
”), Micron Technology, Inc., a Delaware corporation (“
Micron
”), Micron Semiconductor Asia Pte. Ltd., a private limited company organized under the laws of Singapore (“
Micron Singapore
” and, together with Micron, the “
Micron Parties
”), IM Flash Technologies, LLC, a Delaware limited liability company (“
IMFT
”), and IM Flash Singapore, LLP, a limited liability partnership organized under the laws of Singapore (“
IMFS
”). Each of Intel, Intel Singapore, Micron, Micron Singapore, IMFT and IMFS may be referred to herein individually as a “
Party
” and collectively as the “
Parties
.”
RECITALS
A.
Micron and Intel are parties to that certain Amended and Restated Limited Liability Company Operating Agreement of IMFT, dated February 27, 2007 (the “
IMFT Agreement
”).
B.
Micron Singapore, a wholly owned subsidiary of Micron, and Intel Singapore, a wholly owned subsidiary of Intel, are parties to that certain Limited Liability Partnership Agreement of IMFS, dated February 27, 2007 (the “
IMFS Agreement
”).
C.
The Parties desire to enter into certain agreements regarding the joint development and potential manufacture of Designated Technology Devices.
D.
The Parties desire to modify and enter into certain new Joint Venture Documents (as hereinafter defined) and to terminate certain Joint Venture Documents.
E.
The Parties desire to implement transactions involving certain of the assets of IMFT and the business of IMFS by entering into the Asset Transaction Agreements (as hereinafter defined), and consummating the transactions contemplated thereby.
F.
Micron desires to borrow, and Intel desires to lend, certain amounts, subject to the terms and conditions of a promissory note to be issued concurrently with the consummation of the transactions contemplated hereby.
NOW, THEREFORE, in consideration of the foregoing and of the mutual representations, warranties and covenants contained in this Agreement as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties to this Agreement hereby agree as follows:
ARTICLE 1.
DEFINITIONS
1.1
Definitions
. Capitalized terms used in this Agreement shall have the respective meanings ascribed to such terms in
Appendix A
to this Agreement.
ARTICLE 2
.
CONTRACTS AND DISTRIBUTIONS
2.1
Pre-Existing Concluded Contracts Between Certain Parties
. Prior to the date of this Agreement, certain of the Parties have entered into various agreements, as listed on
Schedule 2.1
of the 2012 Master Agreement Disclosure Letter (the “
Concluded Agreements
”), that have expired or terminated in accordance with their terms and that the Parties acknowledge and agree are of no further force or effect.
2.2
Pre-Existing Contracts to be Terminated by Certain Parties
. Prior to the date of this Agreement, certain of the Parties have entered into various agreements, as listed on
Schedule 2.2
of the 2012 Master Agreement Disclosure Letter, that the applicable Parties shall terminate at the Closing in accordance with the Termination Agreements listed in such schedule (the “
Termination Agreements
”).
2.3
Pre-Existing Contracts Continuing Between Certain Parties
. Prior to the date of this Agreement, certain of the Parties have entered into various agreements, as listed on
Schedule 2.3
of the 2012 Master Agreement Disclosure Letter (the “
Continuing Agreements
”), that remain in full force and effect.
2.4
Contemporaneously Executed Contracts Between the Parties
. On the date of this Agreement, the Parties have entered into the agreements listed on
Schedule 2.4
of the 2012 Master Agreement Disclosure Letter (the “
Contemporaneously Executed Agreements
”).
2.5
Amended Contracts Between Certain Parties
. At the Closing, the applicable Parties shall enter into the amendments to the agreements listed on
Schedule 2.5
of the 2012 Master Agreement Disclosure Letter (the “
Closing Date
Amendments
”), which shall amend certain agreements into which certain Parties have previously entered (as so amended, the “
Amended Agreements
”).
2.6
Contracts to be Entered into by Certain Parties
. At the Closing, the applicable Parties shall enter into the agreements listed on
Schedule 2.6
of the 2012 Master Agreement Disclosure Letter (the “
New Agreements
”).
2.7
Asset Transactions to be Entered into by Certain Parties
.
(A)
On the date of this Agreement, the applicable Parties shall enter into that certain IMFS BSA to implement Micron Singapore’s purchase of the business of IMFS relating to the manufacture of NAND Flash Memory Products (as defined in the IMFS Agreement).
(B)
IMFT shall prepare in good faith and deliver to Micron three Business Days prior to the Closing a statement setting forth a good faith estimate of the MTV Net Book Value (as defined in the MTV APSA) as of the Closing.
(C)
At the Closing, the applicable Parties shall enter into the MTV APSA and each of the other Asset Transaction Agreements listed on
Schedule 2.7(C)
of the 2012 Master Agreement Disclosure Letter that were not executed on the date of this Agreement.
2.8
Distributions to IMFT and IMFS Members; Post-Closing IMFS Matters
.
(A)
Distributions
. On the Closing Date, immediately after the Closing and as a condition subsequent thereto:
(1)
Notwithstanding the provisions of Section 5.1 of the IMFT Agreement, IMFT shall distribute by wire transfer to each of Micron and Intel an amount equal to each such Party’s pro rata portion of the Estimated Purchase Price (as defined in the MTV APSA), based upon their respective Sharing Interests in IMFT at the Closing. As required under Section 7.4(A)(6) of the IMFT Agreement, Micron and Intel hereby unanimously agree to such distributions by IMFT to Intel and Micron.
(2)
Notwithstanding the provisions of Section 5.1 of the IMFS Agreement, IMFS shall distribute (a) by wire transfer to Intel Singapore cash in the amount (the “
Intel Singapore Distribution
”) of (i) $465,702,000, which amount is equal to Intel Singapore’s cumulative net investment in IMFS as agreed by the Parties as of the date of this Agreement, plus (ii) any Capital Contributions (as defined in the IMFS Agreement) made by Intel Singapore after the execution of this Agreement but prior to the Closing, less (iii) any distributions to Intel Singapore pursuant to Section 5.1 of the IMFS Agreement after the execution of this Agreement but prior to the Closing, and (b) to Micron Singapore all of the assets of IMFS other than the Intel Singapore Distribution. Micron Singapore shall cause the cash balance of IMFS on the Closing Date after receipt of the MSA Cash Purchase Price (as defined in the IMFS BSA) to be sufficient to make the distribution contemplated by
Section 2.8(A)(2)(a)
. As required under Section 7.4(A)(6) of the IMFS Agreement, Micron Singapore and Intel Singapore hereby unanimously agree to such distributions by IMFS to Intel Singapore and Micron Singapore.
(3)
Micron, Micron Singapore, Intel and Intel Singapore shall cause their respective representatives on the Board of Managers of each of IMFT and IMFS to approve the distributions contemplated in
Sections 2.8(A)
and
2.8(B)
prior to the Closing Date.
(4)
After the execution of this Agreement and until the earlier of (i) the termination of this Agreement and (ii) the Closing, IMFS shall not make any distributions to its Members, and Micron Singapore and Intel Singapore shall cause their respective representatives on the Board of Managers of IMFS not to permit IMFS to make any distributions other than pursuant to
Section 2.8(A)(2)
.
(B)
Contributions and Distributions in Respect of Post-Closing Adjustment Payments
.
(1)
If the MTV APSA Post-Closing Adjustment is a negative number and IMFT must pay the absolute value thereof to Micron pursuant to the MTV APSA, Micron and Intel shall contribute their pro rata portion of the Post-Closing Adjustment amount to IMFT, within two Business Days of its final determination, in accordance with their respective Sharing Interests in IMFT at the Closing.
(2)
If the MTV APSA Post-Closing Adjustment is a positive number and Micron must pay the amount thereof to IMFT, IMFT shall distribute the Post-Closing Adjustment amount to Micron and Intel, within two Business Days of its final determination, on a pro rata basis in accordance with their respective Sharing Interests in IMFT at the Closing.
(C)
Resignation
. On the Closing Date, immediately after the distribution from IMFS to Intel Singapore pursuant to
Section 2.8(A)(2)
, and as a condition subsequent to the Closing, Intel Singapore shall resign as a partner of IMFS, and Micron Singapore hereby agrees to such resignation.
(D)
Release
.
(1)
From and after the Closing and notwithstanding the provisions of Section 11(3) of the Limited Liability Partnerships Act, Chapter 163A of Singapore, except as expressly set forth in this Agreement and the IMFS BSA, Intel Singapore will not have any interest in, or right or claim to any distributions or other payments by IMFS of any allocation or share of the assets or profits of IMFS, or any benefit pursuant to the IMFS Agreement and all other agreements relating to IMFS that do not expressly survive the Closing.
(2)
From and after the Closing, (a) except for any obligations, liabilities or Claims set forth in or arising with respect to any of this Agreement, the Joint Venture Documents or the Asset Transaction Agreements, (b) except to the extent that any of this Agreement, the Joint Venture Documents or the Asset Transaction Agreements expressly provides that any specific obligations, liabilities or other Claims survive the Closing and (c) except as set forth on
Schedule 2.8(D)(2)(c)
of the 2012 Master Agreement Disclosure Letter, each of Intel Singapore, Micron Singapore and IMFS, for themselves and for their past and present stockholders, partners, directors, officers, employees, agents and other representatives, hereby releases and forever discharges the other Parties and their past and present stockholders, partners, directors, officers, employees, agents and other representatives from any and all Claims of any kind or manner whatsoever, known or unknown, arising out of, relating to or with respect to the IMFS Premises, the IMFS Business, the IMFS Agreement or any other agreements relating to IMFS or the MSA Purchased Assets, including any Claims relating to any Environmental Law or any violations thereof or arising from or relating to a release of any Hazardous Substance and any Claims relating to or arising from the agreements and matters set forth on
Schedule 2.8(D)(2)(d)
of the 2012 Master Agreement Disclosure Letter.
(3)
From and after the Closing, (a) except for any obligations, liabilities or Claims set forth in or arising with respect to any of this Agreement, the Joint Venture Documents or the Asset Transaction Agreements, (b) except to the extent that any of this Agreement, the Joint Venture Documents or the Asset Transaction Agreements expressly provides that any specific obligations, liabilities or other Claims thereunder survive the Closing and (c) except as set forth on
Schedule 2.8(D)(3)(c)
of the 2012 Master Agreement Disclosure Letter, each of Intel, Micron and IMFT, for themselves and for their past and present stockholders, partners, directors, officers, employees, agents and other representatives, hereby releases and forever discharges each other Party and their past and present stockholders, partners, directors, officers, employees, agents and other representatives from any and all Claims of any kind or manner whatsoever, known or unknown, arising out of, relating to or with respect to the MTV Fab Operations, the MTV Leased Premises, the MTV Lease Agreement or the Micron Purchased Assets, including any Claims relating to any Environmental Law or any violations thereof or arising from or relating to a release of any Hazardous Substance and any Claims relating to or arising from the agreements and matters set forth on
Schedule 2.8(D)(3)(d)
of the 2012 Master Agreement Disclosure Letter.
(4)
Each of IMFS, IMFT, the Micron Parties and the Intel Parties understands and agrees that the consideration recited in this Agreement and the Asset Transaction Agreements are the only consideration for the foregoing releases, and that no representations, promises or inducements have been made by or on behalf of any other Party except as may appear in this Agreement and the Asset Transaction Agreements.
(5)
Each of IMFS, IMFT, the Micron Parties and the Intel Parties represents and warrants to the other Parties that (a) it at all times has been, as of the date of this Agreement is, and as of the Closing Date will be, the sole owner of any and all Claims of such Party as described in
Section 2.8(D)(1)
,
(D)(2)
and
(D)(3)
, as applicable, (b) it has not at any time assigned or attempted to assign any Claim of such Party as described in
Sections 2.8(D)(1)
,
(D)(2)
and
(D)(3)
, as applicable, and (c) it knows of no person or entity other than itself having or asserting that it has any Claim of such Party as described in
Sections 2.8(D)(1)
,
(D)(2)
and
(D)(3)
, as applicable.
(E)
IMFS U.S. Tax Matters
.
(1)
Each of the Intel Parties, the Micron Parties and IMFS agrees for U.S. federal income Tax purposes to treat the sale of IMFS’s business contemplated by the IMFS BSA and the distribution of a portion of the proceeds thereof to Intel Singapore as contemplated by
Section 2.8(A)(2)
hereof as (a) from the standpoint of
****
, a sale of the
****
of
****
by reason of
****
, (b) from the standpoint of
****
, a purchase by
****
of the assets of
****
attributable to
****
’s interest in
****
and the receipt by
****
of a
****
of the
****
of
****
attributable to
****
’s interest in
****
, and (c) from the standpoint of
****
,
****
and
****
, a termination of
****
pursuant to
****
(and any similar provision of state and/or local income Tax law) on the Closing Date.
(2)
Consistent with paragraph (1) above, the tax year of IMFS, as determined for U.S. federal income tax purposes, will end on the Closing Date.
(3)
The provisions of Section 10.6 of the IMFS Agreement (as in effect immediately prior to the Closing) shall continue to apply with respect to any taxable period during which Intel Singapore is treated as a partner of IMFS for Singapore income Tax purposes or could otherwise suffer adverse Tax consequences as a result of a Tax return filed with respect to such period, as if Intel Singapore continued as a Member of IMFS indefinitely following the Closing.
(4)
United States federal income tax returns of IMFS filed after the Closing for any taxable period during which Intel Singapore is treated as a partner of IMFS for U.S. federal income Tax purposes or could otherwise suffer adverse Tax consequences as a result of a Tax return filed with respect to such period shall be prepared and filed in accordance with the principles of Section 10.6(B) of the IMFS Agreement (as in effect immediately prior to the Closing) as if Intel Singapore continued as a Member of IMFS indefinitely following the Closing.
(5)
The provisions of Section 10.7 of the IMFS Agreement (as in effect immediately prior to the Closing) shall apply with respect to any administrative or judicial
proceeding related to an adjustment or proposed adjustment related to any Tax return of IMFS for any taxable period during which Intel Singapore is treated as a partner of IMFS for income Tax purposes under applicable law or could otherwise suffer adverse Tax consequences as a result of the settlement of any such proceeding, as if Intel Singapore continued as a Member of IMFS indefinitely following the Closing.
(6)
Following the Closing, IMFS will promptly upon request provide to the Intel Parties such information requested by the Intel Parties with respect to the preparation or filing of any Tax return, payment of any Tax, preparation for any Tax audit or other Tax proceeding, in each case with respect to Intel Singapore’s former status as a Member of IMFS.
2.9
Member Approvals and Authorizations
.
(A)
Intel and Micron, as Members of IMFT, hereby approve and authorize in all respects the Joint Venture Documents, the Asset Transaction Agreements, the distributions contemplated by this Agreement and the transactions contemplated hereby and thereby. Intel and Micron, as Members of IMFT, hereby authorize, empower and direct the Board of Managers and officers of IMFT to execute and deliver, in the name and on behalf of IMFT, the Joint Venture Documents, Asset Transaction Agreements and any ancillary documents, agreements or certificates contemplated thereby and related thereto to which IMFT is a party, including those documents and instruments attached as exhibits thereto, with such changes or modifications thereto as may be approved by the Board of Managers, such approval to be conclusively evidenced by the execution of any such document or agreement. Furthermore, Intel and Micron, as Members of IMFT, hereby authorize the Board of Managers to take such action on behalf of IMFT as it may deem necessary, advisable or proper in order to carry out and perform the obligations of IMFT under the Joint Venture Documents, Asset Transaction Agreements and any other agreements and documents executed and delivered by IMFT pursuant to or in connection with such documents and agreements, including those documents and instruments attached as exhibits thereto. Notwithstanding the foregoing, with respect to any transaction with IMFT relating to an Interested Member (as defined in the IMFT Agreement), any approvals relating to such transaction or related documents shall be subject to the approval of the Independent Member (as defined in the IMFT Agreement) pursuant to the IMFT Agreement.
(B)
Intel Singapore and Micron Singapore, as Members of IMFS, hereby approve and authorize in all respects the Joint Venture Documents, the Asset Transaction Agreements, the distributions contemplated by this Agreement and the transactions contemplated hereby and thereby. Intel Singapore and Micron Singapore, as Members of IMFS, hereby authorize, empower and direct the Board of Managers and officers of IMFS to execute and deliver, in the name and on behalf of IMFS, the Joint Venture Documents, Asset Transaction Agreements and any ancillary documents, agreements or certificates contemplated thereby and related thereto to which IMFS is a party, including those documents and instruments attached as exhibits thereto, with such changes or modifications thereto as may be approved by the Board of Managers, such approval to be conclusively evidenced by the execution of any such document or agreement. Furthermore, each of Intel Singapore and Micron Singapore, as Members of IMFS, hereby authorize the Board of Managers to take such action on behalf of IMFS as it may deem necessary, advisable or proper in order to carry out and perform the obligations of IMFS under the Joint Venture Documents, Asset
Transaction Agreements and any other agreements and documents executed and delivered by IMFS pursuant to or in connection with such documents and agreements, including those documents and instruments attached as exhibits thereto. Notwithstanding the foregoing, with respect to any transaction with IMFS relating to an Interested Member (as defined in the IMFS Agreement), any approvals relating to such transaction or related documents shall be subject to the approval of the Independent Member (as defined in the IMFS Agreement) pursuant to the IMFS Agreement.
ARTICLE 3
.
REPRESENTATIONS AND WARRANTIES
3.1
Intel Representations
. Intel represents and warrants to the other Parties as follows:
(A)
Corporate Existence and Power
. Intel is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Intel has the requisite corporate power and authority to carry on its business as now conducted. Intel is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to be so qualified or in good standing would not be reasonably expected to have a Material Adverse Effect.
(B)
Authorization; Enforceability
. Intel has the requisite corporate power and authority to enter into this Agreement and the Joint Venture Documents to which it is a party and to perform its obligations hereunder and thereunder. The execution and delivery by Intel of this Agreement and the Joint Venture Documents to which it is a party and the performance by Intel of its obligations contemplated hereby and thereby have been duly authorized by Intel and do not violate the terms of the certificate of incorporation or bylaws of Intel. This Agreement has been, and as of the Closing the Joint Venture Documents to which Intel is a party will have been, duly executed and delivered by Intel, and this Agreement constitutes, and as of the Closing each of the Joint Venture Documents to which Intel is a party will constitute, the valid and binding agreement of Intel, enforceable against Intel in accordance with their respective terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
(C)
Governmental Authorization
. Except as disclosed in
Schedule 3.1(C)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Intel of this Agreement and the Joint Venture Documents to which it is a party will not require any action by or in respect of, or filing with, any Governmental Entity.
(D)
Non-Contravention; Consents
. Except as disclosed in
Schedule 3.1(D)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Intel of this Agreement and the Joint Venture Documents to which it is a party do not and will not (1) violate, in any material respect, any Applicable Law or Order, (2) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Intel or any of its subsidiaries is a party), (3) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or
obligation of Intel or any of its subsidiaries or to a loss of any benefit to which Intel or any of its subsidiaries is entitled under, any agreement or other instrument binding upon Intel or any of its subsidiaries, or (4) result in the creation or imposition of any Lien on any asset of Intel or any of its subsidiaries that, in the case of clauses (3) or (4), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(E)
Litigation
. Except as disclosed in
Schedule 3.1(E)
of the 2012 Master Agreement Disclosure Letter or as previously disclosed in Intel’s public filings pursuant to the Exchange Act, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to Intel’s knowledge, threatened, against or affecting Intel or its subsidiaries or any of their respective properties that, if determined or resolved adversely to Intel or its subsidiaries, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(F)
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of Intel.
3.2
Intel Singapore Representations
. Intel Singapore represents and warrants to the other Parties as follows:
(A)
Corporate Existence and Power
. Intel Singapore is a private limited company duly incorporated and validly existing under the laws of Singapore. Intel Singapore has the requisite corporate power and authority to carry on its business as now conducted. Intel Singapore is duly qualified to do business in each jurisdiction in which such qualification is required, except where the failure to be so qualified would not be reasonably expected to have a Material Adverse Effect.
(B)
Authorization; Enforceability
. Intel Singapore has the requisite corporate power and authority to enter into this Agreement and the Joint Venture Documents to which it is a party and to perform its obligations hereunder and thereunder. The execution and delivery by Intel Singapore of this Agreement and the Joint Venture Documents to which it is a party and the performance by Intel Singapore of its obligations contemplated hereby and thereby have been duly authorized by Intel Singapore and do not violate the terms of the memorandum and articles of association of Intel Singapore. This Agreement has been, and as of the Closing the Joint Venture Documents to which Intel Singapore is a party will have been, duly executed and delivered by Intel Singapore, and this Agreement constitutes, and as of the Closing each of the Joint Venture Documents to which Intel Singapore is a party will constitute, the valid and binding agreement of Intel Singapore, enforceable against Intel Singapore in accordance with their respective terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
(C)
Governmental Authorization
. Except as disclosed in
Schedule 3.2(C)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Intel Singapore
of this Agreement and the Joint Venture Documents to which it is a party will not require any action by or in respect of, or filing with, any Governmental Entity.
(D)
Non-Contravention; Consents
. Except as disclosed in
Schedule 3.2(D)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Intel Singapore of this Agreement and the Joint Venture Documents to which it is a party do not and will not (1) violate, in any material respect, any Applicable Law or Order, (2) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Intel Singapore is a party), (3) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of Intel Singapore or to a loss of any benefit to which Intel Singapore is entitled under, any agreement or other instrument binding upon Intel Singapore, or (4) result in the creation or imposition of any Lien on any asset of Intel Singapore that, in the case of clauses (3) or (4), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(E)
Litigation
. Except as disclosed in
Schedule 3.2(E)
of the 2012 Master Agreement Disclosure Letter, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to Intel Singapore’s knowledge, threatened, against or affecting Intel Singapore or any of its properties that, if determined or resolved adversely to Intel Singapore, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(F)
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of Intel Singapore.
3.3
Micron Representations
. Micron represents and warrants to the other Parties as follows:
(A)
Corporate Existence and Power
. Micron is a corporation duly incorporated, validly existing and in good standing under the laws of the State of Delaware. Micron has the requisite corporate power and authority to carry on its business as now conducted. Micron is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to be so qualified or in good standing would not reasonably be expected to have a Material Adverse Effect.
(B)
Authorization; Enforceability
. Micron has the requisite corporate power and authority to enter into this Agreement and the Joint Venture Documents to which it is a party and to perform its obligations hereunder and thereunder. The execution and delivery by Micron of this Agreement and the Joint Venture Documents to which it is a party and the performance by Micron of its obligations contemplated hereby and thereby have been duly authorized by Micron and do not violate the terms of the certificate of incorporation or bylaws of Micron. This Agreement has been, and as of the Closing the Joint Venture Documents to which Micron is a party will have been, duly executed and delivered by Micron, and this Agreement constitutes, and as of the Closing each of the Joint Venture Documents to which Micron is a party will constitute, the valid and binding
agreement of Micron, enforceable against Micron in accordance with their respective terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
(C)
Governmental Authorization
. Except as disclosed in
Schedule 3.3(C)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Micron of this Agreement and the Joint Venture Documents to which it is a party will not require any action by or in respect of, or filing with, any Governmental Entity.
(D)
Non-Contravention; Consents
. Except as disclosed in
Schedule 3.3(D)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Micron of this Agreement and the Joint Venture Documents to which it is a party do not and will not (1) violate, in any material respect, any Applicable Law or Order, (2) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Micron or any of its subsidiaries is a party), (3) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of Micron or any of its subsidiaries or to a loss of any benefit to which Micron or any of its subsidiaries is entitled under, any agreement or other instrument binding upon Micron or any of its subsidiaries, or (4) result in the creation or imposition of any Lien on any asset of Micron or any of its subsidiaries that, in the case of clauses (3) or (4) would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(E)
Litigation
. Except as disclosed in
Schedule 3.3(E)
of the 2012 Master Agreement Disclosure Letter or as previously disclosed in Micron’s public filings pursuant to the Exchange Act, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to Micron’s knowledge, threatened, against or affecting Micron or its subsidiaries or any of their respective properties that, if determined or resolved adversely to Micron or its subsidiaries, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(F)
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of Micron.
3.4
Micron Singapore Representations
. Micron Singapore represents and warrants to the other Parties as follows:
(A)
Corporate Existence and Power
. Micron Singapore is a private limited company duly incorporated and validly existing under the laws of Singapore. Micron Singapore has the requisite corporate power and authority to carry on its business as now conducted. Micron Singapore
is duly qualified to do business in each jurisdiction in which such qualification is required, except where the failure to be so qualified would not be reasonably expected to have a Material Adverse Effect.
(B)
Authorization; Enforceability
. Micron Singapore has the requisite corporate power and authority to enter into this Agreement and the Joint Venture Documents to which it is a party and to perform its obligations hereunder and thereunder. The execution and delivery by Micron Singapore of this Agreement and the Joint Venture Documents to which it is a party and the performance by Micron Singapore of its obligations contemplated hereby and thereby have been duly authorized by Micron Singapore and do not violate the terms of the memorandum and articles of association of Micron Singapore. This Agreement has been, and as of the Closing the Joint Venture Documents to which Micron Singapore is a party will have been, duly executed and delivered by Micron Singapore, and this Agreement constitutes, and as of the Closing each of the Joint Venture Documents to which Micron Singapore is a party will constitute, the valid and binding agreement of Micron Singapore, enforceable against Micron Singapore in accordance with their respective terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
(C)
Governmental Authorization
. Except as disclosed in
Schedule 3.4(C)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Micron Singapore of this Agreement and the Joint Venture Documents to which it is a party will not require any action by or in respect of, or filing with, any Governmental Entity.
(D)
Non-Contravention; Consents
. Except as disclosed in
Schedule 3.4(D)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by Micron Singapore of this Agreement and the Joint Venture Documents to which it is a party do not and will not (1) violate, in any material respect, any Applicable Law or Order, (2) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Micron Singapore is a party), (3) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of Micron Singapore or to a loss of any benefit to which Micron Singapore is entitled under, any agreement or other instrument binding upon Micron Singapore, or (4) result in the creation or imposition of any Lien on any asset of Micron Singapore that, in the case of clauses (3) or (4), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(E)
Litigation
. Except as disclosed in
Schedule 3.4(E)
of the 2012 Master Agreement Disclosure Letter, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to Micron Singapore’s knowledge, threatened, against or affecting Micron Singapore or any of its properties that, if determined or resolved adversely to Micron Singapore, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(F)
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of Micron Singapore.
3.5
IMFT Representations
. IMFT represents and warrants to the other Parties as follows:
(A)
Legal Existence and Power
. IMFT is a limited liability company duly organized, validly existing and in good standing under the laws of the State of Delaware. IMFT has the requisite legal power and authority to carry on its business as now conducted. IMFT is duly qualified to do business and is in good standing in each jurisdiction in which such qualification is required, except where the failure to be so qualified or in good standing would not be reasonably expected to have a Material Adverse Effect.
(B)
Authorization; Enforceability
. IMFT has the requisite legal power and authority to enter into this Agreement and the Joint Venture Documents to which it is a party and to perform its obligations hereunder and thereunder. The execution and delivery by IMFT of this Agreement and the Joint Venture Documents to which it is a party and the performance by IMFT of its obligations contemplated hereby and thereby have been duly authorized by IMFT and do not violate the terms of the certificate of formation of IMFT or the IMFT Agreement. This Agreement has been, and as of the Closing the Joint Venture Documents to which IMFT is a party will have been, duly executed and delivered by IMFT, and this Agreement constitutes, and as of the Closing each of the Joint Venture Documents to which IMFT is a party will constitute, the valid and binding agreement of IMFT, enforceable against IMFT in accordance with their respective terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
(C)
Governmental Authorization
. Except as disclosed in
Schedule 3.5(C)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by IMFT of this Agreement and the Joint Venture Documents to which it is a party will not require any action by or in respect of, or filing with, any Governmental Entity.
(D)
Non-Contravention; Consents
. Except as disclosed in
Schedule 3.5(D)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by IMFT of this Agreement and the Joint Venture Documents to which it is a party do not and will not (1) violate, in any material respect, any Applicable Law or Order, (2) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Micron Singapore is a party), (3) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of IMFT or to a loss of any benefit to which IMFT is entitled under, any agreement or other instrument binding upon IMFT or (4) result in the creation or imposition of any Lien on any asset of IMFT that, in the case of clauses (3) or (4), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(E)
Litigation
. Except as disclosed in
Schedule 3.5(E)
of the 2012 Master Agreement Disclosure Letter, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to IMFT’s knowledge, threatened, against or affecting IMFT or any of its properties that, if determined or resolved adversely to IMFT, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(F)
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of IMFT.
3.6
IMFS Representations
. IMFS represents and warrants to the other Parties as follows:
(A)
Legal Existence and Power
. IMFS is a limited liability partnership duly organized and validly existing under the laws of Singapore. IMFS has the requisite legal power and authority to carry on its business as now conducted. IMFS is duly qualified to do business in each jurisdiction in which such qualification is required, except where the failure to be so qualified would not be reasonably expected to have a Material Adverse Effect.
(B)
Authorization; Enforceability
. IMFS has the requisite legal power and authority to enter into this Agreement and the Joint Venture Documents to which it is a party and to perform its obligations hereunder and thereunder. The execution and delivery by IMFS of this Agreement and the Joint Venture Documents to which it is a party and the performance by IMFS of its obligations contemplated hereby and thereby have been duly authorized by IMFS and do not violate the terms of the IMFS Agreement. This Agreement has been, and as of the Closing the Joint Venture Documents to which IMFS is a party will have been, duly executed and delivered by IMFS, and this Agreement constitutes, and as of the Closing each of the Joint Venture Documents to which IMFS is a party will constitute, the valid and binding agreement of IMFS, enforceable against IMFS in accordance with their respective terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
(C)
Governmental Authorization
. Except as disclosed in
Schedule 3.6(C)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by IMFS of this Agreement and the Joint Venture Documents to which it is a party will not require any action by or in respect of, or filing with, any Governmental Entity.
(D)
Non-Contravention; Consents
. Except as disclosed in
Schedule 3.6(D)
of the 2012 Master Agreement Disclosure Letter, the execution, delivery and performance by IMFS of this Agreement and the Joint Venture Documents to which it is a party do not and will not (1) violate, in any material respect, any Applicable Law or Order, (2) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Micron Singapore is a party), (3) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of IMFS or to a loss of any benefit to which IMFS is entitled under, any agreement or other instrument
binding upon IMFS or (4) result in the creation or imposition of any Lien on any asset of IMFS that, in the case of clauses (3) or (4), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(E)
Litigation
. Except as disclosed in
Schedule 3.6(E)
of the 2012 Master Agreement Disclosure Letter, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to IMFS’s knowledge, threatened, against or affecting IMFS or any of its properties that, if determined or resolved adversely to IMFS, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(F)
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of IMFS.
ARTICLE 4
.
COVENANTS
4.1
Reasonable Efforts
. Each of the Parties will cooperate and use its reasonable efforts to take, or cause to be taken, all appropriate actions (and to make, or cause to be made, all filings necessary, proper or advisable under Applicable Law) to consummate and make effective the transactions contemplated by this Agreement, the Asset Transaction Agreements and the Joint Venture Documents, including its reasonable efforts to obtain, as promptly as practicable, all licenses, permits, consents, approvals, authorizations, qualifications and orders of Governmental Entities and parties to contracts, as are necessary for the consummation of the transactions contemplated by this Agreement, the Asset Transaction Agreements and the Joint Venture Documents and to fulfill the conditions in
Article 5
of this Agreement.
4.2
Governmental Filings
. Subject to Applicable Laws, prior to the making or submission of any analysis, appearance, presentation, letter, white paper, memorandum, brief, argument, opinion or proposal by or on behalf of any Party in connection with any proceeding, review, inquiry or investigation under or relating to the HSR Act or any other applicable Competition Law regarding the transactions contemplated hereby or regarding any of the Joint Venture Documents or Asset Transaction Agreements or any terms thereof, whether before or after the Closing Date, the Parties will consult and cooperate with one another, and consider in good faith the views of one another, in connection with any such analyses, appearances, presentations, letters, white papers, memoranda, briefs, arguments, opinions or proposals. In this regard but without limitation, each Party hereto shall promptly inform the other of any material communication between such Party and the Federal Trade Commission, the Antitrust Division of the United States Department of Justice, or any other federal, foreign or state antitrust or competition Governmental Entity regarding the transactions contemplated by this Agreement or regarding any of the Joint Venture Documents or Asset Transaction Agreements or any terms thereof. Nothing in the Agreement, however, shall require or be construed to require any Party hereto, in order to obtain the consent or successful termination of any proceeding, review, inquiry or investigation of any such Governmental Entity, to (A) sell or hold separate, or agree to sell or hold separate, before or after the Closing Date, any assets, businesses or any interests in any assets or businesses, of such Party or any of its Affiliates (or to consent to any sale, or agreement to sell, any assets or businesses,
or any interests in any assets or businesses), or any change in or restriction on the operation by such Party of any assets or businesses, or (B) enter into any agreement or be bound by any obligation that, in such Party’s good faith judgment, may have an adverse effect on the benefits to such Party of the transactions contemplated by this Agreement.
4.3
Further Assurances
. From time to time, as and when requested by any other Party, a Party will execute and deliver, or cause to be executed and delivered, all such documents and instruments and will take, or cause to be taken, all such further or other actions, as the Parties may reasonably agree are necessary or desirable to consummate the transactions contemplated by this Agreement.
4.4
Confidentiality
. The Parties shall continue to abide by the terms of the Amended and Restated Mutual Confidentiality Agreement so long as it remains in effect. The disclosure and exchange of Confidential Information (as defined in the CNDA) between Intel and Micron is further subject to the terms of the CNDA.
4.5
Public Announcements
. None of the Parties shall issue any press release or otherwise make any public statements with respect to the transactions contemplated by this Agreement or any of the Joint Venture Documents or the Asset Transactions Agreements without the prior written consent of the other Parties, except as may be reasonably determined by a Party to be required by Applicable Law, or by the rules and regulations of, or pursuant to any agreement with, the NASDAQ Stock Market. If any Party reasonably determines, with the advice of counsel, that it is required by Applicable Law to make any public statement regarding or otherwise publicly disclose this Agreement, any of the Joint Venture Documents, any of the Asset Transaction Agreements or any terms hereof or thereof, it shall, within a reasonable time before making any public disclosure, consult with the other Parties regarding such disclosure and seek confidential treatment for such terms or portions of this Agreement or such other Joint Venture Document or Asset Transaction Agreements as may be reasonably requested by the other Parties.
4.6
Legally Compelled Disclosures
. In the event that a Party is requested or becomes legally compelled (including pursuant to securities laws and regulations) to disclose any of the Joint Venture Documents or the Asset Transaction Agreements where such disclosure would be in contravention of the provisions of this Agreement, the CNDA or the Amended and Restated Mutual Confidentiality Agreement, the Party may make such disclosure but subject to the provisions of this
Section 4.6
. The Party required to make such disclosure shall provide the other Parties with prompt written notice of the requirement to make such disclosure before making such disclosure and will use its reasonable efforts to reasonably cooperate with the other Parties to seek a protective order, confidential treatment, or other appropriate remedy with respect to the disclosure. In such event, the disclosing Party shall furnish for disclosure only that portion of the information that is legally required to be disclosed and shall exercise its reasonable efforts to obtain reliable assurance that confidential treatment will be accorded to such information to the extent reasonably requested by the other Parties and to the maximum extent possible under Applicable Law. The disclosing Party agrees that it will provide the other Parties with drafts of any documents or other filings in which it is required to disclose this Agreement, the other Joint Venture Documents, the Asset Transaction Agreements or any other confidential information subject to the terms of this Agreement at least two Business Days prior to the filing or disclosure thereof for any matter to be filed with the Commission on Form 8-K and at least five Business Days prior to the filing or disclosure for any
other matter required to be filed with the Commission or any other Governmental Entity, and that it will make any changes to such materials as reasonably requested by any of the other Parties, as determined by the filing Party, to the extent permitted by law or any rules and regulations of the Commission or any other Governmental Entity, as applicable.
4.7
Continuity and Maintenance of Operations
.
(A)
From the date of this Agreement until the Closing, each Party agrees to use reasonable efforts consistent with past practice and policies to (1) preserve intact in all material respects the present business operations of IMFT and IMFS, (2) maintain in all material respects the services of such Party’s employees who render full-time service to IMFT or IMFS as seconded employees or who are otherwise an integral part of the services provided by such Party to IMFT or IMFS, (3) preserve in all material respects the relationships with suppliers, licensors, licensees, and others having material business relationships with IMFT or IMFS and (4) maintain the same cash management, asset write-off/write-down and accounting methods, policies, practices, principles, procedures, exceptions, classifications, assumptions, judgments and valuation and estimation methodologies that were used in the preparation of the audited financial statements of IMFT and IMFS at September 1, 2011.
(B)
From the date of this Agreement until the Closing, IMFS and IMFT agree to use reasonable efforts to manufacture and ship Products in the ordinary course consistent with past practice and policies.
(C)
From the date of this Agreement until the Closing, any cancellation of any purchase orders for equipment or other goods or services that were to be delivered to IMFT or IMFS must be approved by either (1) the Board of Managers of IMFT or IMFS, respectively, or (2) the co-executive officers of IMFT appointed by the Intel Parties and the Micron Parties.
4.8
Certain Deliveries and Notices
. From the date of this Agreement until the Closing, each Party shall promptly inform in writing the other Parties of (A) any event or occurrence that could be reasonably expected to have a Material Adverse Effect on its ability to perform its or their obligations under any of the Joint Venture Documents or the Asset Transaction Agreements or in the reasonable opinion of the Party, the ability of IMFT or IMFS to conduct its businesses or (B) any breach or any failure to satisfy any condition or covenant contained herein or in any other Joint Venture Document or Asset Transaction Agreement, if such breach or failure cannot or will not be cured by such Party by the Closing.
4.9
Damage to MTV Premises
.
(A)
Damage Prior to Closing
. If, after the date of this Agreement and prior to the Closing, the Micron Purchased Assets are damaged in a manner that would require repairs outside the ordinary course, but that damage does not amount to Material Damage, (1) IMFT shall at its own cost and expense repair that damage prior to the Closing to the extent practical, (2)
Section 4.9(B)
shall apply and (3) any such repairs shall be taken into account in determining the net book value of the affected assets for purposes of determining the MTV Net Book Value (as defined in the MTV APSA). Except
as otherwise agreed to in writing by Intel and Micron, to the extent that IMFT has received or has any rights to receive any insurance proceeds or any recovery from any third party in respect of such damage, IMFT shall retain such proceeds and rights for application to such cost and expense of repair.
(B)
Repairs
. In carrying out the repairs to the damaged Micron Purchased Assets as referred to in
Section 4.9(A)
(such repairs, the “
Works
”), IMFT will:
(1)
comply with the reasonable directions of Micron;
(2)
carry out the Works in a proper and workmanlike manner to restore the Micron Purchased Assets as nearly as practicable to the state they were in before the event of damage; and
(3)
cause as little interruption to the operation of the rest of the premises within the MTV Leased Premises as is reasonable in the circumstances.
(C)
Material Damage
. For the purpose of this
Section 4.9
, “
Material Damage
” means damage to or destruction of the
****
or any part thereof such that either (1) will require the expenditure of more than
****
to restore the
****
as nearly as practicable to the condition that the
****
were in immediately prior to the occurrence of such event, or (2) reduce the
****
of the
****
by at least
****
immediately prior to the occurrence of such event, which
****
is reasonably expected to be incapable of being substantially restored within a period of
****
. Except as otherwise agreed to in writing by Intel and Micron, to the extent that IMFT has received or has any rights to receive any insurance proceeds or any recovery from any third party in respect of such Material Damage, IMFT shall retain such proceeds and rights for application to such cost and expense of repair.
(D)
Release from Obligation to Enter Into MTV APSA
. If there is Material Damage prior to Closing, all of Intel, Micron or IMFT shall be released from the obligation to enter into the MTV APSA upon written notice from any of Intel, Micron or IMFT to all other proposed parties to the MTV APSA;
provided
,
however
, that in the case of any Material Damage resulting from a reduction in
****
by at least
****
, as contemplated by
Section 4.9(C)(2)
, no such party shall be entitled to provide such notice, and no such parties shall be so released from the obligation to enter into the MTV APSA, if such Material Damage is reasonably expected to be capable of repair by
****
and such repair is effected prior to such date. IMFT will use reasonable efforts to repair such damage as promptly as practicable, and IMFT will provide Intel and Micron with full access to the
****
to observe and monitor any such repairs.
4.10
Physical Counts
.
(A)
Equipment Physical Inspection.
(1)
Prior to the Closing as requested by Intel, Micron and Intel shall cause IMFT to conduct an inspection at the Fab in Manassas, Virginia (the “
MTV Fab
”), to confirm the physical existence of and the proper accounting for a sample of parent tools chosen by Intel from the fixed asset ledger of IMFT or at the premises of the MTV Fab. Such sample will be limited to 20 parent tools, each with a current book value as of the end of the preceding fiscal month in excess of $100,000, with Intel determining which assets are to be confirmed on a “book-to-floor” basis and
on a “floor-to-book” basis. If the inspection reveals zero discrepancies in this initial sample of 20 parent tools, no additional physical verification of equipment will be required. If such inspection reveals fewer than three discrepancies, none of which exceeds $5,000,000 (in net book value), Micron and Intel shall cause IMFT to conduct an inspection at the MTV Fab for an additional sample of parent tools, each with a current book value as of the end of the preceding fiscal month in excess of $100,000, chosen by Intel from the fixed asset ledger of IMFT or at the premises of the MTV Fab. Such additional sample will be limited to 43 parent tools that were not included in the initial sample, with Intel determining which assets are to be confirmed on a “book-to-floor” basis and on a “floor-to-book” basis. If there are three or more discrepancies (whether in the initial sample or when aggregated with the results of the additional sample) or if any discrepancy exceeds $5,000,000 (in net book value), then, at Intel’s request, IMFT shall, and Intel and Micron shall cause IMFT to, conduct an inspection of all parent tools, each with a current book value as of the end of the preceding fiscal month in excess of $100,000, at the MTV Fab before the Closing. The Intel Parties and the Micron Parties shall each have the right to have representatives present during any inspection. Such representatives shall be provided reasonable access to all such property, plant and equipment and any other qualifying assets at the MTV Fab on the date any inspections are conducted.
(2)
Prior to the Closing as requested by Intel, IMFT and Micron shall permit Intel to conduct an inspection at the Fab in Lehi, Utah (the “
Lehi Fab
”), to confirm the physical existence of and the proper accounting for a sample of parent tools chosen by Intel from the fixed asset ledger of IMFT or at the premises of the Lehi Fab. Such sample will be limited to 40 parent tools, each with a current book value as of the end of the preceding fiscal month in excess of $100,000, with Intel determining which assets are to be confirmed on a “book-to-floor” basis and on a “floor-to-book” basis. If the inspection reveals zero discrepancies in this initial sample of 40 parent tools, no additional physical verification of equipment will be required. If such inspection reveals fewer than three discrepancies, none of which exceeds $5,000,000 (in net book value), Intel may conduct an inspection at the Lehi Fab for an additional sample of parent tools, each with a current book value as of the end of the preceding fiscal month in excess of $100,000, chosen by Intel from the fixed asset ledger of IMFT or at the premises of the Lehi Fab. Such additional sample will be limited to 86 parent tools that were not included in the initial sample, with Intel determining which assets are to be confirmed on a “book-to-floor” basis and on a “floor-to-book” basis. If there are three or more discrepancies (whether in the initial sample or when aggregated with the results of the additional sample) or if any discrepancy exceeds $5,000,000 of net book value of equipment, then, Intel may, and IMFT and Micron shall permit Intel to, conduct an inspection of all parent tools, each with a current book value as of the end of the preceding fiscal month in excess of $100,000, at the Lehi Fab before the Closing. Intel will make all reasonable efforts to conduct counts in such a manner as to minimize operational impacts at IMFT, and IMFT shall make all reasonable efforts to permit Intel’s representatives to complete all inspections prior to the Closing. IMFT shall provide Intel’s representatives with full access to all property, plant and equipment and any other qualifying assets at the Lehi Fab on the date any inspections are conducted.
(3)
IMFT shall (a) make reasonable efforts to investigate each discrepancy identified as a result of the inspections at the MTV Fab or the Lehi Fab, (b) report the findings of such investigations to Intel and Micron and (c) resolve all discrepancies prior to the Closing to the satisfaction of Intel and Micron. To the extent any discrepancy involves assets that may have been transferred to IMFS, IMFS shall promptly cooperate with and provide all necessary information and assistance reasonably requested by IMFT.
(4)
Except as otherwise agreed to by the Parties, IMFT shall make the appropriate adjustments to its books and fixed asset register to reflect the physical assets at the MTV Fab and the Lehi Fab as determined by the physical inspections conducted pursuant to
Sections 4.10(A)(1)
and
(2)
, as applicable, and any investigations conducted pursuant to
Section 4.10(A)(3)
. The values and amounts of IMFT’s physical assets as so adjusted shall be used in the determination of the MTV Net Book Value (as defined in the MTV APSA) and shall be taken into account for the purposes of determining any Post-Closing Adjustment (as defined in the MTV APSA).
(B)
Back-End Inventory Physical Count
. Prior to the Closing as requested by Intel, Micron shall grant Intel personnel reasonable access, during normal business hours, without material interruption to the Micron facility and upon reasonable advance notice, and only after the implementation of reasonable, as determined in Micron’s sole discretion, safeguards, including execution of a confidentiality agreement and prior approval of the Intel personnel, to any Micron facility where any Back-End Products are located. Intel shall have the right to inspect any and all of the inventory to confirm its physical existence in a manner that does not materially disrupt the manufacturing operations at any such Micron facility. Except as otherwise agreed to by Intel and Micron, Micron shall make the appropriate adjustments to its books and records to reflect the results of Intel’s inspection. Such adjustment may include additional charges or refunds to Intel for billings of Back-End Products. The values and amounts of the Back-End Products as so adjusted shall be used in the determination of the book value of the Back-End Products for the purposes of IMFT Back-End Products Purchase Agreement and the IMFS Back-End Products Purchase Agreement, including any Post-Closing Adjustment (as defined in the IMFT Back-End Products Purchase Agreement or the IMFS Back-End Products Purchase Agreement, as applicable).
4.11
Fixed Asset Reconciliation
.
(A)
No later than 10 days after the date of this Agreement, IMFS shall, and Micron Singapore shall cause IMFS to, prepare and deliver to Intel Singapore and Micron Singapore a fixed asset register of IMFS property, plant and equipment as of September 1, 2011 that is reconciled to the audited financial statements as of such date.
(B)
No later than 10 days after the Closing, Micron Singapore shall, on behalf of IMFS, prepare and deliver to Intel Singapore a fixed asset register activity report for IMFS for the period beginning September 2, 2011, and ending on the Closing Date. Such report shall also be prepared in accordance with Modified GAAP and Micron’s regular accounting policies.
(C)
No later than 10 days after the date of this Agreement, IMFT shall prepare and deliver to Intel and Micron a fixed asset register of IMFT property, plant and equipment as of September 1, 2011 that is reconciled to the audited financial statements as of such date. Such register shall list
separately the property, plant and equipment located at the MTV Fab and property, plant and equipment located at the Lehi Fab.
(D)
No later than 10 days after the Closing, IMFT shall prepare and deliver to Intel and Micron a fixed asset register activity report for each of the Lehi Fab and the MTV Fab for the period beginning September 2, 2011 and ending on the Closing Date. Each such report shall list separately the property, plant and equipment located at the MTV Fab and property, plant and equipment located at the Lehi Fab. Such reports shall also be prepared in accordance with Modified GAAP and Micron’s regular accounting policies.
(E)
The fixed asset register activity reports delivered to the Intel Parties and the Micron Parties pursuant to
Sections 4.11(B)
and
(D)
shall include all asset transfers, additions, disposals, impairments, and depreciation schedules. Any of the Intel Parties or Micron Parties may, in its sole discretion and at its sole cost, perform, or engage PricewaterhouseCoopers LLP to perform, a review of such fixed asset register activity reports within 30 days of the Closing. IMFT and IMFS shall reasonably cooperate with and provide information and assistance as reasonably required by the Intel Parties, the Micron Parties or PricewaterhouseCoopers LLP. IMFT and IMFS personnel shall respond to inquiries from the Intel Parties, the Micron Parties or PricewaterhouseCoopers LLP relating to the fixed asset register activity reports. Any discrepancies noted shall be appropriately adjusted in the applicable IMFT or IMFS books and records. The values and amounts of IMFT’s and IMFS’s fixed assets as so adjusted shall be used in the determination of the MTV Net Book Value (as defined in the MTV APSA) and the IMFS Net Book Value (as defined in the IMFS BSA), as applicable, and shall be taken into account for the purposes of any Post-Closing Adjustment (as defined in the MTV APSA or the IMFS BSA, as applicable).
4.12
Failure to Obtain
****
.
(A)
Micron shall use reasonable efforts to obtain the
****
as promptly as possible.
(B)
If the
****
has not been obtained in accordance with Section 5.2(D)(1) by the later of the date on which all other conditions to Closing have occurred and May 4, 2012, and Micron Singapore has not waived the Closing condition set forth in Section 5.2(D)(1), Intel Singapore, Micron Singapore and IMFS shall promptly (and in any event, prior to May 31, 2012, unless otherwise agreed to by such Parties) enter into a new agreement for a transfer of Intel Singapore’s equity interest in IMFS to Micron Singapore on terms and conditions that are equivalent, as nearly as practicable, to the terms of the IMFS BSA.
(C)
If the
****
has not been obtained by the later of the date on which all other conditions to Closing have occurred and May 4, 2012, and Intel Singapore has not waived the Closing condition set forth in Section 5.2(D)(2), Intel Singapore shall be responsible for
****
,
and Micron Singapore shall be responsible for
****
, of any
****
on the transfer of Intel Singapore’s interest in IMFS to Micron Singapore pursuant to any new agreement entered into pursuant to
****
. If Intel Singapore waives the Closing condition set forth in Section 5.2(D)(2), Intel Singapore shall be responsible for
****
, and
****
shall be responsible for
****
, of any
****
on the transfer of the IMFS Premises to Micron Singapore pursuant to the IMFS BSA.
(D)
Whether
****
’s acquisition of the
****
is consummated under the
****
or as an acquisition of
****
in
****
,
****
will indemnify, defend and hold harmless
****
and its Affiliates from and against any and all liabilities, damages, losses, costs and expenses (including Taxes, reasonable attorneys’ and consultants’ fees and expenses) relating in any manner to
****
arising with respect to such acquisition, except with respect to
****
allocated, and to the extent allocated, to
****
pursuant to Section 4.12(C).
4.13
****
.
(A)
From and after the Closing, neither
****
nor
****
will have any interest in, or right or claim to any allocation of, share of or benefit from the
****
or
****
accruing or received after the Closing, including any monies received by
****,
relating to such
****
after the Closing (the “
Post-Closing Benefits
”).
(B)
****
will indemnify, defend and hold harmless
****
and
****
from and against any and all liabilities, damages, losses, costs and expenses (including Taxes, reasonable attorneys’ and consultants’ fees and expenses) arising from (i)
****
or
****
being required to repay or return any benefit of, or otherwise compensate any
****
with respect to, the
****
relating to such
****
with respect to the period prior to the Closing, (ii) the revocation by any
****
relating to any
****
, (iii)
****
or
****
being required to pay any amount to any
****
with respect to any of the Post-Closing Benefits and (iv) the transfer of the benefits or the burdens of the
****
relating to such
****
to
****
, and any actions taken to effect such transfer, pursuant to or in contemplation of the transactions in this Agreement, in any case including in the case of clauses (i) through (iv) (A) those that may result from any failure to satisfy any of the conditions of the
****
relating to such
****
that apply at any time prior to, from or after the Closing, (B) any amounts required to be paid or repaid to a
****
that would not have been required to be paid or repaid but for such failure, (C) any penalties, interest and additions to
****
relating thereto, (D) any reasonable professional fees incurred by
****
or
****
in connection with such failure and (E) any
****
resulting from the receipt or right to receive any payment pursuant to this sentence;
provided, however
, that in no event shall
****
or
****
be entitled to indemnification for the loss of the value to
****
or
****
attributable to the surrender of their rights to the Post-Closing Benefits described in clause (A) above.
ARTICLE 5
.
CLOSING
5.1
Closing
. The closing of the transactions contemplated by this Agreement (the “
Closing
”) will take place at the offices of Gibson, Dunn & Crutcher LLP, 1881 Page Mill Road, Palo Alto, California 94304, or at such other place as the Parties may agree and shall take place on the last Business Day of the fiscal month in which the Condition Satisfaction Date occurs, unless otherwise mutually agreed by the Parties. As used herein, the “
Condition Satisfaction Date
” means the fourth Business Day after all of the conditions set forth in
Sections 5.2
and
5.3
are first satisfied or properly waived.
5.2
Conditions to the Obligations of the Parties
. The obligation of each Party under this Agreement to consummate the transactions contemplated hereby will be subject to the satisfaction, at or prior to Closing, of the conditions that:
(A)
Orders
. There shall not have been entered a preliminary or permanent injunction, temporary restraining order or other judicial or administrative order or decree of any Governmental Entity (an “
Order
”), the effect of which prohibits the Closing, and no litigation, arbitration, investigation or administrative proceeding seeking to enjoin, restrict or prevent the consummation of the transactions contemplated by this Agreement, any of the Joint Venture Documents or any of the Asset Transaction Agreements shall be pending before any Governmental Entity.
(B)
Governmental Filings
. All required waiting periods under the HSR Act shall have expired or been terminated, any filings or approvals required to be made or obtained under any foreign antitrust, competition or fair trade laws or regulations shall have been made or obtained, and any required waiting periods under any foreign antitrust, competition or fair trade laws or regulations shall have expired or been terminated, in each case without the imposition of any conditions.
(C)
Legal Prohibitions and Restrictions
. No statute, rule, regulation, executive order, decree, ruling or injunction shall have been enacted, entered, promulgated or enforced by any United States federal or state or foreign court or United States federal or state or foreign Governmental Entity that prohibits, restrains, enjoins or restricts the consummation of the transactions contemplated by this Agreement, the Joint Venture Documents or the Asset Transaction Agreements.
(D)
****
.
(1)
Unless (a) waived by
****
or (b)
****
’s acquisition of the business of
****
is restructured as a transfer of
****
in
****
pursuant to
****
, the Parties shall have received an advance ruling made by the
****
confirming that the sale of the IMFS Business and the MSA Purchased Assets as contemplated by the IMFS BSA is a
****
for the purposes of the
****
shall not be chargeable in respect of the purchase consideration payable by
****
under the
****
.
(2)
Unless (a) waived by
****
or (b)
****
’s acquisition of the
****
is restructured as a transfer of
****
pursuant to
****
, the Parties shall have received a
****
from the
****
confirming that
****
pursuant to
****
has been granted in respect of the transfer of the
****
as contemplated by the
****
.
(E)
Conditions in the Asset Transaction Agreements
. Each of the conditions to Closing set forth in the IMFS BSA and the MTV APSA shall have been satisfied or properly waived or shall become satisfied upon the consummation of the transactions contemplated by this Agreement;
provided
,
however
, that if the IMFS BSA has been terminated or the obligation to enter into the MTV APSA has been released, the conditions to Closing set forth in either such agreement shall not be a condition to Closing.
(F)
Designated Technology Statement of Work
. Intel and Micron shall have completed and agreed upon the first Statement of Work, which will provide for research and development activities thereunder through
****
, under the Designated Technology Joint Development Program Agreement.
(G)
Accuracy of Representations and Warranties
. The representations and warranties of the other Parties contained in this Agreement and the Asset Transaction Agreements that are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect shall be true and correct, and all other representations and warranties of the other Parties contained in this Agreement and the Asset Transaction Agreements shall be true and correct in all material respects, both on and as of the date of this Agreement and at and as of the Closing (with the same force and effect as if made anew at and as of the Closing), except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date.
(H)
Compliance with Covenants
. All covenants of the other Parties contained in this Agreement, the Joint Venture Documents and the Asset Transaction Agreements that are to be performed and complied with by such other Party at or before the Closing shall have been performed and complied with in all material respects.
(I)
Delivery of Agreements by or on Behalf of Each Other Party
. Each other Party shall have duly executed and delivered, or shall at the Closing deliver, each of the Joint Venture Documents and Asset Transaction Agreements to which such other Party is a party, and each such Joint Venture Document and Asset Transaction Agreement shall be in full force and effect without any event having occurred or condition existing that constitutes, or with the giving of notice or the passage of time (or both) would constitute, a material default under or material breach of such Joint Venture Document or Asset Transaction Agreement by any such other Party.
(J)
****
. In the case of Intel’s obligation to consummate the transactions contemplated hereby, there shall not have been a
****
of
****
or a public announcement by
****
of an agreement to enter into a transaction that will result in a
****
. In the case of Micron’s obligation to consummate the transactions contemplated hereby, there shall not have been a
****
or a public announcement by
****
of an agreement to enter into a transaction that will result in a
****
.
5.3
Closing Deliverables
. At the Closing:
(A)
each Party shall deliver or cause to be delivered to the other Parties duly executed counterparts of each of the New Agreements, Closing Date Amendments, Termination Agreements and Asset Transaction Agreements to which such other Party (or Parties), as applicable, and such executing Party are parties;
(B)
Intel will lend to Micron $65,000,000 pursuant to the Senior Unsecured Note;
(C)
Intel will deposit $300,000,000 with Micron pursuant to the Deposit Agreement; and
(D)
each Party shall deliver or cause to be delivered to the other Parties a certificate, dated as of the Closing Date and signed by an authorized officer of the delivering Party, certifying that the conditions set forth in
Sections 5.2(E)
,
(G)
,
(H)
and
(I)
relating to such delivering Party’s
representations and warranties, covenants and execution and delivery of Joint Venture Documents and Asset Transaction Agreements have been satisfied as to the delivering party.
ARTICLE 6
.
INDEMNIFICATION
6.1
Survival
.
(A)
Survival of Covenants
. The covenants and agreements of the Parties contained in this Agreement, the Asset Transaction Agreements or in any certificates or other writing delivered pursuant hereto or thereto will, unless specifically stated otherwise in this Agreement, the Asset Transaction Agreements, or certificates or other writings, survive the Closing.
(B)
Survival of Representations and Warranties
. The certifications, representations and warranties made by the Parties in this Agreement, in the certificates referred to in
Section 5.3(D)
and in the Asset Transaction Agreements shall survive the Closing until the second anniversary of the Closing Date.
6.2
Indemnification
.
(A)
Intel will indemnify, defend and hold harmless the Micron Parties, IMFT and IMFS and their officers, directors, employees and agents against any and all liabilities, damages, losses, costs and expenses (including reasonable attorneys’ and consultants’ fees and expenses) (collectively, “
Losses
”), incurred or suffered by them as a result of (1) any failure to be true or correct of any representation or warranty made by the Intel Parties or any of their officers, directors, employees or agents in this Agreement, the Asset Transaction Agreements or any of the certificates or other writings (other than the Joint Venture Documents) delivered at the Closing pursuant to this Agreement or the Asset Transaction Agreements (where representations and warranties qualified by references to materiality or Material Adverse Effect are to be interpreted as though they were not so qualified),
provided
a claim therefor is asserted no later than 60 days after the end of the survival period therefor or (2) any failure to perform or comply with any covenant or agreement of the Intel Parties in this Agreement or in the Asset Transaction Agreements;
provided, however
, that (x) Intel shall not be liable under
Section 6.2(A)(1)
until aggregate Losses as a result of such failures exceed $
****
, at which point Intel shall be liable only for the amount of such Losses in excess of $
****
; and (y) Intel’s aggregate liability under
Section 6.2(A)(1)
for Losses that exceed $
****
shall not exceed $
****
. In addition, all of Intel’s indemnification obligations with respect to claims timely asserted under
Section 6.2(A)(1)
will terminate on the
****
anniversary of the Closing Date.
(B)
Micron will indemnify, defend and hold harmless the Intel Parties, IMFT and IMFS and their officers, directors, employees and agents against any and all Losses incurred or suffered by them as a result of (1) any failure to be true or correct of any representation or warranty made by the Micron Parties or any of its officers, directors, employees or agents in this Agreement, the Asset Transaction Agreements or any of the certificates or other writings (other than the Joint Venture Documents) delivered at the Closing pursuant to this Agreement or the Asset Transaction Agreements (where representations and warranties qualified by references to materiality or Material Adverse Effect are to be interpreted as though they were not so qualified),
provided
a claim therefor is asserted no later than 60 days after the end of the survival period therefor, (2) any failure to perform or comply with any covenant or agreement of the Micron Parties in this Agreement or in
the Asset Transaction Agreements, (3) any “Assumed Liabilities” as contemplated by the terms of the IMFS BSA or the MTV APSA, (4) any liability pursuant to any Environmental Law arising from or relating to the MTV Leased Premises, the MTV Fab Operations, the Micron Purchased Assets, the IMFS Premises, the IMFS Business, or the MSA Purchased Assets or (5) the winding up, liquidation, dissolution or insolvency of IMFS (including any Claims against Intel Singapore relating to or in connection with: (a) distributions from IMFS to Intel Singapore, whether pursuant to
Section 2.8(A)(2)
or otherwise; or (b) transactions between IMFS and Intel Singapore pursuant to the IMFS Back-End Products Purchase Agreement);
provided, however
, that (x) Micron shall not be liable under
Section 6.2(B)(1)
until aggregate Losses as a result of such failures exceed $
****
, at which point Micron shall be liable only for the amount of such Losses in excess of $
****
; and (y) Micron’s aggregate liability under
Section 6.2(B)(1)
for Losses that exceed $
****
shall not exceed $
****
. In addition, all of Micron’s indemnification obligations with respect to claims timely asserted under
Section 6.2(B)(1)
will terminate on the
****
anniversary of the Closing Date.
(C)
IMFT will indemnify, defend and hold harmless the Intel Parties, the Micron Parties and IMFS and their officers, directors, employees and agents against any and all Losses incurred or suffered by them as a result of (1) any failure to be true or correct of any representation or warranty made by the IMFT or any of its officers, directors, employees or agents in this Agreement, the Asset Transaction Agreements or any of the certificates or other writings (other than the Joint Venture Documents) delivered at the Closing pursuant to this Agreement or the Asset Transaction Agreements (where representations and warranties qualified by references to materiality or Material Adverse Effect are to be interpreted as though they were not so qualified),
provided
a claim therefor is asserted no later than 60 days after the end of the survival period therefor, or (2) any failure to perform or comply with any covenant or agreement of IMFT in this Agreement or in the Asset Transaction Agreements;
provided, however
, that (x) IMFT shall not be liable under
Section 6.2(C)(1)
until aggregate Losses as a result of such failures exceed $
****
, at which point IMFT shall be liable only for the amount of such Losses in excess of $
****
and (y) IMFT’s aggregate liability under
Section 6.2(C)(1)
for Losses that exceed $
****
shall not exceed $
****
. In addition, all of IMFT’s indemnification obligations with respect to claims timely asserted under
Section 6.2(C)(1)
will terminate on the
****
anniversary of the Closing Date.
(D)
IMFS will indemnify, defend and hold harmless the Intel Parties, the Micron Parties and IMFT and their officers, directors, employees and agents against any and all Losses incurred or suffered by them as a result of (1) any failure to be true or correct of any representation or warranty made by the IMFS or any of its officers, directors, employees or agents in this Agreement, the Asset Transaction Agreements or any of the certificates or other writings (other than the Joint Venture Documents) delivered at the Closing pursuant to this Agreement or the Asset Transaction Agreements (where representations and warranties qualified by references to materiality or Material Adverse Effect are to be interpreted as though they were not so qualified),
provided
a claim therefor is asserted no later than 60 days after the end of the survival period therefor, (2) any failure to perform or comply with any covenant or agreement of IMFS in this Agreement or in the Asset Transaction Agreements or (3) all “Retained Liabilities” in accordance with the terms of the IMFS BSA;
provided, however
, that (x) IMFS shall not be liable under
Section 6.2(D)(1)
until aggregate
Losses as a result of such failures exceed $
****
, at which point IMFS shall be liable only for the amount of such Losses in excess of $
****
; and (y) IMFS’s aggregate liability under
Section 6.2(D)(1)
for Losses that exceed $
****
shall not exceed $
****
. In addition, all of IMFS’s indemnification obligations with respect to claims timely asserted under
Section 6.2(D)(1)
will terminate on the
****
anniversary of the Closing Date.
(E)
Micron Singapore shall bear any and all Losses for which IMFS has an indemnification obligation under
Section 6.2(D)
, except that Intel Singapore shall bear
****
of IMFS’s indemnification obligations with respect to claims timely asserted under
Section 6.2(D)(3)
. Micron Singapore will indemnify, defend and hold harmless the Intel Parties, IMFS and IMFT and their respective officers, directors, employees and agents against any and all such Losses that Micron Singapore is to bear pursuant to this
Section 6.2(E)
. Intel Singapore will indemnify, defend and hold harmless the Micron Parties, IMFS and IMFT and their respective officers, directors, employees and agents against any and all such Losses that Intel Singapore is to bear pursuant to this
Section 6.2(E)
.
6.3
Procedures
.
(A)
General
. Promptly after the receipt by any Party that is entitled to seek indemnification under
Section 6.2
(an “
Indemnified Party
”) of a notice of any Third Party Claim that may be subject to indemnification under
Section 6.2
, such Indemnified Party shall give written notice of such Third Party Claim to the Party against whom indemnification is sought (the “
Indemnifying Party
”), stating in reasonable detail the nature and basis of each claim made in the Third Party Claim and the amount thereof, to the extent known, along with copies of the relevant documents received by the Indemnified Party evidencing the Third Party Claim and the basis for indemnification sought. Failure of the Indemnified Party to give such notice shall not relieve the Indemnifying Party from liability on account of this indemnification, except if and only to the extent that the Indemnifying Party is actually prejudiced thereby. Thereafter, the Indemnified Party shall deliver to the Indemnifying Party, promptly after the Indemnified Party’s receipt thereof, copies of all notices and documents (including court papers) received by the Indemnified Party relating to the Third Party Claim. The Indemnifying Party shall have the right to assume the defense of the Indemnified Party with respect to the Third Party Claim upon written notice to the Indemnified Party delivered within 30 days after receipt of the particular notice from the Indemnified Party.
(B)
So long as the Indemnifying Party has assumed the defense of the Third Party Claim in accordance herewith and notified the Indemnified Party in writing thereof, (1) the Indemnified Party may retain separate co-counsel at its sole cost and expense and participate in the defense of the Third Party Claim, it being understood that the Indemnifying Party shall pay all reasonable costs and expenses of counsel for the Indemnified Party after such time as the Indemnified Party has notified the Indemnifying Party of such Third Party Claim and prior to such time as the Indemnifying Party has notified the Indemnified Party that it has assumed the defense of such Third Party Claim, (2) the Indemnified Party shall not file any papers or, other than in connection with a settlement of the Third Party Claim, consent to the entry of any judgment without the prior written consent of the Indemnifying Party (not to be unreasonably withheld, conditioned or delayed) and (3) the Indemnifying Party will not consent to the entry of any judgment or enter into any settlement with respect to the Third Party Claim (other than a judgment or settlement that is solely for money
damages and is accompanied by a release of all indemnifiable claims against the Indemnified Party) without the prior written consent of the Indemnified Party (not to be unreasonably withheld, conditioned or delayed). Whether or not the Indemnifying Party shall have assumed the defense of the Indemnified Party for a Third Party Claim, such Indemnifying Party shall not be obligated to indemnify and hold harmless the Indemnified Party hereunder for any consent to the entry of judgment or settlement entered into with respect to such Third Party Claim without the Indemnifying Party’s prior written consent, which consent shall not be unreasonably withheld, conditioned or delayed.
(C)
In the case of any Third Party Claim where the Indemnifying Party reasonably believes that it would be appropriate to settle such Third Party Claim using equitable remedies (
i.e.
, remedies involving the future activity and conduct of IMFT or IMFS), the Indemnifying Party and the Indemnified Party shall work together in good faith to agree to a settlement;
provided
,
however
, that no Party shall be under any obligation to agree to any such settlement.
(D)
Any Direct Claim by an Indemnified Party against an Indemnifying Party will be asserted by giving the Indemnifying Party reasonably prompt written notice thereof, but in any event not later than 30 days after the Indemnified Party becomes aware of the facts giving rise to such Direct Claim. Failure of the Indemnified Party to give such notice shall not relieve the Indemnifying Party from liability on account of this indemnification, except if and only to the extent that the Indemnifying Party is actually prejudiced thereby. Such notice by the Indemnified Party will describe the Direct Claim in reasonable detail and will indicate the estimated amount, if reasonably practicable, of Losses that have been or may be sustained by the Indemnified Party. The Indemnifying Party will have a period of 10 Business Days within which to respond in writing to such Direct Claim. If the Indemnifying Party does not so respond within such 10 Business Day period, the Indemnifying Party will be deemed to have rejected such claim, in which event the Indemnified Party will be free to pursue such remedies as may be available to the Indemnified Party on the terms and subject to the provisions of this Agreement.
6.4
Specific Performance
. The Parties agree that irreparable damage will result if this Agreement and the Asset Transaction Agreements are not performed in accordance with their respective terms, and the Parties agree that any damages available under the indemnification provisions or at law for a breach of this Agreement or any Asset Transaction Agreements would not be an adequate remedy. Therefore, the provisions hereof and thereof and the obligations of the parties hereunder and thereunder shall be enforceable in a court of equity, or other tribunal with jurisdiction, by a decree of specific performance, and appropriate injunctive relief may be applied for and granted in connection therewith.
6.5
Treatment of Indemnification Payments; Insurance Recoveries
. Any indemnity payment under this
Article 6
(including any payment required to be made under
Section 6.2(E)
) shall be decreased by any amounts actually recovered by the Indemnified Party under third party insurance policies with respect to such Loss (net of any premiums paid by such Indemnified Party under the relevant insurance policy), each Party agreeing (A) to use all reasonable efforts to recover all available insurance proceeds and (B) to the extent that any indemnity payment under this
Article 6
(including any payment required to be made under
Section 6.2(E)
) has been paid by the Indemnifying
Party to the Indemnified Party prior to the recovery by the Indemnified Party of such insurance proceeds, such amounts actually recovered by the Indemnified Party shall be promptly paid to the Indemnifying Party or, in the case of any payment made under
Section 6.2(E)
,
****
of such amounts actually recovered shall be promptly paid to Intel Singapore.
6.6
Certain Additional Procedures
. The Indemnified Party shall cooperate and assist the Indemnifying Party in determining the validity of any Third Party Claim for indemnity by the Indemnified Party and in otherwise resolving such matters. The Indemnified Party shall cooperate in the defense by the Indemnifying Party of each Third Party Claim (and the Indemnified Party and the Indemnifying Party agree with respect to all such Third Party Claims that a common interest privilege agreement exists between them), including by (A) permitting the Indemnifying Party to discuss the Third Party Claim with such officers, employees, consultants and representatives of the Indemnified Party as the Indemnifying Party reasonably requests, (B) providing to the Indemnifying Party copies of documents and samples of products as the Indemnifying Party reasonably requests in connection with defending such Third Party Claim, (C) preserving all properties, books, records, papers, documents, plans, drawings, electronic mail and databases relating to matters pertinent to the Third Party Claim and under the Indemnified Party’s custody or control in accordance with such Party’s corporate documents retention policies, or longer to the extent reasonably requested by the Indemnified Party, (D) notifying the Indemnifying Party promptly of receipt by the Indemnified Party of any subpoena or other third party request for documents or interviews and testimony, and (E) providing to the Indemnifying Party copies of any documents produced by the Indemnified Party in response to or compliance with any subpoena or other third party request for documents. In connection with any Third Party Claims, except to the extent inconsistent with the Indemnified Party’s obligations under Applicable Law and except to the extent that to do so would subject the Indemnified Party or its employees, agents or representatives to criminal or civil sanctions, and unless ordered by a court to do otherwise, the Indemnified Party shall not produce documents to a third party until the Indemnifying Party has been provided a reasonable opportunity to review, copy and assert privileges covering such documents.
6.7
Remedies
. Prior to the Closing Date, specific performance shall be the Parties’ sole and exclusive remedy under this Agreement, except for breaches of
Section 4.4
. From and after the Closing Date, specific performance and the indemnification remedies set forth in
Section 6.2
shall be the Parties’ sole and exclusive remedies under this Agreement and the Asset Transaction Agreements, except for breaches of
Section 4.4
. Such remedies and all other remedies provided for in this Agreement and the Asset Transaction Agreements shall, however, be cumulative and not exclusive. The remedies provided for in the respective Joint Venture Documents will govern the applicable Parties’ remedies for breaches thereof.
ARTICLE 7
.
TERMINATION; ALTERNATIVE TRANSACTION
7.1
Termination
.
(A)
Before the Closing, this Agreement may be terminated:
(1)
by the mutual written consent of the Parties at any time;
(2)
in the event of a Micron Breach, by Intel upon written notice to the other Parties;
provided, however
, that if after such Micron Breach, Intel elects pursuant to
Section 7.2(A)
for the Parties to negotiate alternative arrangements to implement the transactions contemplated by this Agreement, then during the Negotiation Period Intel may not elect to terminate this Agreement pursuant to this
Section 7.1(A)(2)
with respect to such Micron Breach;
provided further,
that nothing herein shall prohibit Intel from electing during the Negotiation Period to terminate this Agreement under this
Section 7.1(A)(2)
with respect to any additional Micron Breach;
(3)
in the event of a Intel Breach, by Micron upon written notice to the other Parties;
provided, however
, that if after such Intel Breach, Micron elects pursuant to
Section 7.2(A)
for the Parties to negotiate alternative arrangements to implement the transactions contemplated by this Agreement, then during the Negotiation Period Micron may not elect to terminate this Agreement pursuant to this
Section 7.1(A)(3)
with respect to such Intel Breach;
provided further
, that nothing herein shall prohibit Micron from electing during the Negotiation Period to terminate this Agreement under this
Section 7.1(A)(3)
with respect to any additional Intel Breach;
(4)
in the event of a Negotiation Trigger, by any Party upon written notice to the other Parties at any time after the Negotiation Period expires; and
(5)
by any Party after
****
.
(B)
If this Agreement is terminated, all further obligations of the Parties under this Agreement (other than pursuant to
Sections 4.2
and
4.4
and
Articles 6
and
8
, which will continue in full force and effect) will terminate without further liability or obligation of any Party to any other Party hereunder;
provided
,
however
, that no Party will be released from liability hereunder if this Agreement is terminated and the transactions abandoned by reason of (1) failure of such Party to have performed its material obligations under this Agreement, or (2) any material misrepresentation made by such Party of any matter set forth in this Agreement.
7.2
Alternative Transaction.
(A)
If there has been a Micron Breach, Intel may, and, if there has been an Intel Breach, Micron may, elect for the Parties to negotiate alternative arrangements to implement the transactions contemplated by this Agreement by delivering written notice to the other Parties within 30 days after the expiration of the cure period set forth in the definition of “Micron Breach” or “Intel Breach,” as applicable, but in any event not later than
****
.
(B)
Upon such election by Intel or Micron pursuant to
Section 7.2(A)
or upon the occurrence of a Negotiation Trigger (the date of any such election or occurrence, a “
Negotiation Commencement Date
”), the Parties shall promptly meet to negotiate in good faith alternative arrangements that are fair and reasonable to implement the transactions contemplated by this Agreement and the Asset Transaction Agreements, which alternative arrangements shall implement the technology development and supply principles embodied by the Joint Venture Documents and include contractual and other arrangements that shall, as closely as practicable, provide the same
or better beneficial results to the Parties, viewed on an aggregate basis, as would have been achieved if the transactions contemplated by this Agreement and the Asset Transaction Agreements had been consummated pursuant to the terms and conditions hereof and thereof.
(C)
The Parties shall attempt in good faith to reach an agreement with respect to the alternative arrangements within
****
of the Negotiation Commencement Date (or such other date as may be mutually agreed between Intel and Micron, the “
Negotiation Period
”). During the Negotiation Period, the Designated Technology Joint Development Program Agreement shall continue in full force and effect. After the Negotiation Period, unless the Parties otherwise agree, this Agreement is subject to termination pursuant to
Section 7.1(A)
.
(D)
Nothing herein is intended to release any Party from any liability resulting from any failure of such Party to have performed its material obligations under this Agreement or any material misrepresentation made by such Party in this Agreement, regardless of whether the Parties have thereafter reached an agreement under
Section 7.2(C)
above during the Negotiation Period.
ARTICLE 8
.
MISCELLANEOUS
8.1
Limitation of Liability
. SUBJECT TO
SECTION 8.2
, IN NO EVENT SHALL ANY PARTY BE LIABLE TO THE OTHER PARTIES OR ANY OTHER INDEMNIFIED PARTY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR OTHER INDIRECT DAMAGES OR ANY PUNITIVE OR EXEMPLARY DAMAGES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE ASSET TRANSACTION AGREEMENTS, WHETHER SUCH DAMAGES ARE BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHER THEORY OF LIABILITY, AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2
Exclusions and Mitigation
.
Sections 8.1
and
6.2
will not apply to any Party’s breach of
Section 4.4
. Each Party shall have a duty to use reasonable efforts to mitigate damages for which another Party is responsible. Neither the Intel Parties nor the Micron Parties shall be entitled to recover Losses for the diminution in value of its interest in IMFT or IMFS resulting from any event, circumstance or occurrence for which IMFT or IMFS is pursuing and is entitled to indemnification hereunder for the full amount of its Losses arising from such event, circumstance or occurrence.
8.3
Notices
. All notices and other communications under this Agreement or any of the Asset Transaction Agreements shall be in writing and shall be deemed given upon (A) transmitter’s confirmation of a receipt of a facsimile transmission, (B) confirmed delivery by a standard overnight carrier or when delivered by hand, (C) the expiration of five Business Days after the day when mailed in the United States by certified or registered mail, postage prepaid, or (D) delivery in person, addressed at the following addresses (or at such other address for a party as shall be specified by like notice):
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If to Intel
:
Intel Corporation
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Attention:
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Facsimile:
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and to
:
Gibson, Dunn & Crutcher LLP
****
****
Attention:
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Facsimile:
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If to Intel Singapore
:
Intel Technology Asia Pte Ltd
****
****
Attention:
****
Facsimile:
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with a copy to
:
Intel Corporation
****
****
Attention:
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Facsimile:
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and to
:
Gibson, Dunn & Crutcher LLP
****
****
Attention:
****
Facsimile:
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If to Micron
:
Micron Technology, Inc.
****
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****
Attention:
****
Facsimile:
****
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If to Micron Singapore
:
Micron Semiconductor Asia Pte. Ltd.
****
****
Attention:
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Facsimile:
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with a copy to
:
Micron Technology, Inc.
****
****
****
Attention:
****
Facsimile:
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If to IMFT
:
IM Flash Technologies, LLC
****
****
Attention:
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Facsimile:
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and to
:
IM Flash Technologies, LLC
****
****
Attention:
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Facsimile:
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If to IMFS
:
IM Flash Singapore, LLP
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Attention:
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Facsimile:
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8.4
Waiver
. The failure at any time of a Party to require performance by the other Party of any responsibility or obligation required by this Agreement shall in no way affect a Party’s right to require such performance at any time thereafter, nor shall the waiver by a Party of a breach of any provision of this Agreement by another Party constitute a waiver of any other breach of the same or any other provision nor constitute a waiver of the responsibility or obligation itself.
8.5
Assignment
. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of each Party hereto. Neither this Agreement nor any right or obligation hereunder may be assigned or delegated by a Party in whole or in part to any other Person, including by operation of law or in connection with any acquisition, merger, or change of control of a Party, without the prior written consent of the nonassigning Parties.
8.6
Third Party Rights
. Nothing in this Agreement or any Asset Transaction Agreement, whether express or implied, is intended or shall be construed to confer, directly or indirectly, upon or give to any Person, other than the Parties hereto, any legal or equitable right, remedy or claim under or in respect of this Agreement or any Asset Transaction Agreement or any covenant, condition or other provision contained herein.
8.7
Choice of Law
. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof.
8.8
Jurisdiction and Venue; Waiver of Jury Trial
.
(A)
Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement or any Asset Transaction Agreement shall be brought in a state or federal court located in Delaware and each of the Parties to this Agreement hereby consents and submits to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives,
to the fullest extent permitted by Applicable Law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any Party anywhere in the world, whether within or without the jurisdiction of any such court.
(B)
EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT OR ANY ASSET TRANSACTION AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY ASSET TRANSACTION AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (1) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (2) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (3) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (4) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT AND THE ASSET TRANSACTION AGREEMENTS BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS
SECTION 8.8
.
8.9
Dispute Resolution
.
(A)
All disputes between the Parties over a purported breach of this Agreement or any Asset Transaction Agreement (each, a “
Dispute
”), shall be resolved as follows: the disputing Parties shall first submit the matter to the chief executive officers (or other senior executives officers) of each of the Parties by providing notice of the Dispute to the Parties. The chief executive officers (or other senior executive officers) shall then make a good faith effort to resolve the Dispute. If they are unable to resolve the Dispute within 30 days of receiving notice of the Dispute (during which 30-day period, the chief executive officers (or other senior executive officers) shall seek in good faith to hold at least three meetings at which they shall make a good faith effort to resolve the Dispute), then a civil action with respect to the Dispute may be commenced, but only after the matter has been submitted to JAMS for mediation as contemplated by
Section 8.9(B)
.
(B)
If there is a Dispute, any Party may commence mediation by providing to JAMS and the other Parties a written request for mediation, setting forth the subject of the Dispute and the relief requested. The disputing Parties will cooperate with JAMS and with one another in selecting a mediator from JAMS panel of neutrals, and in scheduling the mediation proceedings. The disputing Parties covenant that they will participate in the mediation in good faith, and that they will share equally in its costs. All offers, promises, conduct and statements, whether oral or written, made in the course of the mediation by any of the Parties, their agents, employees, experts and attorneys, and by the mediator and any JAMS employees, are confidential, privileged and inadmissible for any purpose, including impeachment, in any litigation or other proceeding involving the Parties,
provided
that evidence that is otherwise admissible or discoverable shall not be rendered
inadmissible or non-discoverable as a result of its use in the mediation. Any Party may seek equitable relief prior to the mediation to preserve the status quo pending the completion of that process. Except for such an action to obtain equitable relief, no Parties may commence a civil action with respect to a Dispute until after the completion of the initial mediation session, or 45 days after the date of filing the written request for mediation, whichever occurs first. Mediation may continue after the commencement of a civil action, if the disputing Parties so desire. In any such civil action, the fees and expenses of the disputing Parties will be borne by them in inverse proportion as they may prevail on the matters resolved in such action, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute;
provided, however
, that (1) with respect to any matter that the Intel Parties cause IMFT or IMFS to Dispute with the Micron Parties, Intel or Intel Singapore shall bear any such fees and expenses that IMFT or IMFS is required to bear under this
Section 8.9(B)
, respectively, and (2) with respect to any matter that the Micron Parties cause IMFT or IMFS to Dispute with the Intel Parties, Micron or Micron Singapore shall bear any such fees and expenses that IMFT or IMFS is required to bear under this
Section 8.9(B)
, respectively. The provisions of this
Section 8.9(B)
may be enforced by any court of competent jurisdiction, and the Party seeking enforcement shall be entitled to an award of all costs, fees and expenses, including attorneys’ fees, to be paid by the Party or Parties against whom enforcement is ordered;
provided
,
however
, that if any judgment relating to or arising from a Dispute is being enforced by IMFT or IMFS, then any award of costs, fees and expenses shall be borne by the Party against whom the judgment is being enforced, and if any judgment relating to or arising from a Dispute is being enforced against IMFT or IMFS, then any such award of costs, fees and expenses shall be borne by the Party that caused IMFT or IMFS, as applicable, to dispute the underlying subject matter of the Dispute.
8.10
Headings
. The headings of the Articles and Sections in this Agreement are provided for convenience of reference only and shall not be deemed to constitute a part hereof.
8.11
Entire Agreement
. From and after the Closing, this Agreement, together with the Appendices and Schedules hereto and the agreements and instruments expressly provided for herein, constitutes the entire agreement of the Parties hereto with respect to the subject matter hereof and supersedes all prior agreements and understandings, oral and written (including all side letters and all agreements of the Parties that may have been expressed as resolutions or approvals of Managers appointed by the Members of IMFT or IMFS), between the Parties hereto with respect to the subject matter hereof, including all matters relating to IMFT and IMFS;
provided
,
however
, that unless and until the Closing occurs hereunder, nothing herein shall be deemed to affect the rights and obligations of the Parties under the Master Agreement, the IMFT Agreement, the IMFS Agreement, the Omnibus Agreement and any other agreements entered into pursuant thereto or in connection therewith, except to the extent specifically provided for in this Agreement.
8.12
Severability
. Should any provision of this Agreement be deemed in contradiction with the laws of any jurisdiction in which it is to be performed or unenforceable for any reason, such provision shall be deemed null and void, but this Agreement shall remain in full force in all other respects. Should any provision of this Agreement be or become ineffective because of changes in Applicable Laws or interpretations thereof, or should this Agreement fail to include a provision
that is required as a matter of law, the validity of the other provisions of this Agreement shall not be affected thereby. If such circumstances arise, the Parties hereto shall negotiate in good faith appropriate modifications to this Agreement to reflect those changes that are required by Applicable Law.
8.13
Counterparts
. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
8.14
Expenses
. Whether or not the transactions contemplated by this Agreement are ultimately consummated, each Party shall bear its own costs and expenses in connection with the negotiation, execution and delivery of this Agreement, the Asset Transaction Agreements and the Joint Venture Documents except as otherwise provided herein.
8.15
Certain Interpretive Matters
.
(A)
Unless the context requires otherwise, (1) all references to Sections, Articles or the Appendix are to Sections, Articles or the Appendix of or to this Agreement, (2) words in the singular include the plural and vice versa, (3) the term “
including
” means “including without limitation,” and (4) the terms “
herein
,” “
hereof
,” “
hereunder
” and words of similar import shall mean references to this Agreement as a whole and not to any individual section or portion hereof. Unless otherwise specified herein, all amounts and payments shall be in United States dollars, and all references to “
$
” or dollar amounts will be to lawful currency of the United States of America. All references to “
$
” or dollar amounts shall be to precise amounts and not rounded up or down. All references to “
day
” or “
days
” will mean calendar days.
(B)
No provision of this Agreement will be interpreted in favor of, or against, any of the Parties by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft of this Agreement or such provision.
[SIGNATURE PAGE FOLLOWS]
IN WITNESS WHEREOF, this Agreement has been executed and delivered as of the date first above written.
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INTEL CORPORATION
By:
/s/ Brian Krzanich
Brian Krzanich
Senior Vice President, Chief Operating
Officer
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INTEL TECHNOLOGY ASIA PTE LTD
By:
/s/ Brian Krzanich
Brian Krzanich
Authorized Signer
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MICRON TECHNOLOGY, INC.
By:
/s/ Mark Durcan
D. Mark Durcan
Chief Executive Officer
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MICRON SEMICONDUCTOR ASIA PTE. LTD.
By:
/s/ Brian J. Shields
Brian J. Shields
Senior Managing Director and Chairman
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IM FLASH TECHNOLOGIES, LLC
By:
/s/ Rodney Morgan
Rodney Morgan
Co-Executive Officer
By:
/s/ Keyvan Esfarjani
Keyvan Esfarjani
Co-Executive Officer
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IM FLASH SINGAPORE, LLP
By:
/s/ Rodney Morgan
Rodney Morgan
Authorized Person
By:
/s/ Keyvan Esfarjani
Keyvan Esfarjani
Authorized Person
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THIS IS THE SIGNATURE PAGE FOR THE 2012 MASTER AGREEMENT
ENTERED INTO BY AND AMONG
INTEL CORPORATION, INTEL TECHNOLOGY ASIA PTE LTD,
MICRON TECHNOLOGY, INC., MICRON SEMICONDUCTOR ASIA PTE. LTD.,
IM FLASH TECHNOLOGIES, LLC AND IM FLASH SINGAPORE, LLP
APPENDIX A
2012 MASTER AGREEMENT
DEFINITIONS
“
2012 Master Agreement Disclosure Letter
” means the disclosure letter, as agreed to between the Parties as of the date hereof, containing the Schedules required by the provisions of this Agreement.
“
2012 Master Agreement Exhibit Letter
” means the exhibit letter, as agreed to between the Parties as of the date hereof, containing the Exhibits required by the provisions of this Agreement and the 2012 Master Agreement Disclosure Letter.
“
Affiliate
” means, with respect to any specified Person, a Person that directly or indirectly, including through one or more intermediaries, controls, or is controlled by, or is under common control with, the Person specified.
“
Agreement
” shall have the meaning set forth in the preamble to this Agreement.
“
Amended Agreements
” shall have the meaning set forth in
Section 2.5
of this Agreement.
“
Amended and Restated
Mutual Confidentiality Agreement
” means that certain Amended and Restated Mutual Confidentiality Agreement dated as of February 27, 2007, among Micron, Intel, Micron Singapore, Intel Singapore, IMFT and IMFS, as amended.
“
Applicable Law
” means any laws, statutes, rules, regulations, ordinances, orders, codes, arbitration awards, judgments, decrees or other legal requirements of any Governmental Entity.
“
Asset Transaction Agreements
” means the IMFS BSA, the MTV APSA and each of the ancillary agreements, documents, instruments and certificates contemplated by each of the foregoing agreements and listed on
Schedule 2.7(B)
of the 2012 Master Agreement Disclosure Letter.
“
Back-End Products
” shall have the meaning set forth in the IMFS Back-End Products Purchase Agreement and the IMFT Back-End Products Purchase Agreement.
“
Building Agreement
” shall have the meaning set forth in the IMFS BSA.
“
Business Day
” means a day that is not a Saturday, Sunday or other day on which commercial banking institutions in the State of New York and Singapore are authorized or required by Applicable Law to be closed.
“
Claims
” means, collectively, claims, counterclaims, cross-claims, demands, actions, suits, proceedings, judgments, damages, liabilities, losses, costs and expenses.
“
Closing
” shall have the meaning set forth in
Section 5.1
of this Agreement.
“
Closing Date
” means the date on which the Closing occurs. For purposes of this Agreement and the other agreements and instruments referenced herein, the Closing shall be deemed to have occurred at 11:59 p.m. on such date.
“
Closing Date Amendments
” shall have the meaning set forth in
Section 2.5
of this Agreement.
“
CNDA
” means the Corporate Non-Disclosure Agreement No. 4870579, dated as of March 13, 2002, between Micron and Intel, as amended.
“
Code
” means the Internal Revenue Code of 1986, as amended.
“
Commission
” means the United States Securities and Exchange Commission.
“
Competition Law
” means the Sherman Antitrust Act of 1890, as amended, the Clayton Act of 1914, as amended, the HSR Act, the Federal Trade Commission Act, as amended, and all other domestic or foreign Applicable Laws issued by a domestic or foreign Governmental Entity that are designed or intended to prohibit, restrict or regulate actions having the purpose or effect of monopolization or restraint of trade or lessening of competition.
“
Concluded Agreements
” shall have the meaning set forth in
Section 2.1
of this Agreement.
“
Condition Satisfaction Date
” shall have the meaning set forth in
Section 5.1
of this Agreement.
“
Contemporaneously Executed Agreements
” shall have the meaning set forth in
Section 2.4
of this Agreement.
“
Continuing Agreements
” shall have the meaning set forth in
Section 2.3
of this Agreement.
“
Deposit Agreement
” means that certain Deposit Agreement by and between Intel and Micron that shall be entered into at the Closing, in substantially the form attached as Exhibit CC to the 2012 Master Agreement Exhibit Letter.
“
Designated Technology Device
” shall have the meaning set forth in the Designated Technology Joint Development Program Agreement.
“
Designated Technology Joint Development Program Agreement
” shall mean that certain Designated Technology Joint Development Program Agreement by and among Intel and Micron, dated as of the date hereof.
“
Direct Claim
” means any claim, demand, lawsuit, complaint, cross-complaint or counter-complaint, arbitration, opposition, cancellation proceeding, or other legal or arbitral proceeding of any nature, brought in any court, tribunal or judicial forum anywhere in the world, regardless of the manner in which such proceeding is captioned or styled brought by any Party, or their respective subsidiaries, officers, directors, employees or agents.
“
Dispute
” shall have the meaning set forth in
Section 8.9(A)
of this Agreement.
“
Environmental Contaminant
” shall have the meaning set forth in the IMFS BSA.
“
Environmental Laws
” means any and all laws (including common law), legislation, regulation, order, permit, license, code or governmental policy having the force of law or requirement under either (a) the MTV Lease Agreement that is applicable to the MTV Leased Premises, the MTV Fab Operations or the Micron Purchased Assets, or (b) the Building Agreement or the JTC Lease that is applicable to the IMFS Premises, the IMFS Business or the MSA Purchased Assets, in each case concerning (i) the environment, including pollution, contamination, environmental response, environmental investigations, environmental monitoring, clean-up, decontamination, abatement, preservation, protection, management and reclamation of the environment, (ii) human health or safety relating to workplace requirements or conditions or the exposure of employees, workers or other Persons to any chemical or substance, or (iii) the production and management or release or threatened release of any chemical or substance (including waste and Hazardous Substances), including purchase, manufacture, generation, use, treatment, processing, handling, storage, disposal, transportation, re-use, recycling or reclamation of any chemical or substance (including waste and Hazardous Substances).
“
Estimated MSA Purchase Price Note
” shall have the meaning set forth in the IMFS BSA.
“
Exchange Act
” means the Securities Exchange Act of 1934, as amended.
“
Fab
” shall have the meaning set forth in the IMFT Agreement or IMFS Agreement, as applicable.
“
Governmental Entity
” means any governmental authority or entity, including any agency, board, bureau, commission, court, municipality, department, subdivision or instrumentality thereof, or any arbitrator or arbitration panel.
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shall have the meaning set forth in the
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.
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shall have the meaning set forth in
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of this Agreement.
“
Hazardous Substances
” means any asbestos, any petroleum and petroleum products (including without limitation crude oil and any fractions thereof), any natural gas, synthetic gas, and any mixtures thereof, any flammable, explosive, radioactive, hazardous, toxic, contaminating, polluting matter, waste or substance, including without limitation any material defined, listed, designated, classified, regulated or referred to by any Governmental Entity as a hazardous, dangerous, or toxic waste, material or substance, or contaminant or pollutant, or other similar term, under any Environmental Laws in effect or that may be promulgated in the future.
“
HSR Act
” means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended.
“
IMFS
” shall have the meaning set forth in the preamble to this Agreement.
“
IMFS Agreement
” shall have the meaning set forth in the Recitals to this Agreement.
“
IMFS Back-End Products Purchase Agreement
” means that certain IMFS Back-End Products Purchase Agreement by and among IMFS, Intel Singapore and Micron Singapore that shall be entered into at the Closing, in substantially the form attached as Exhibit HH to the 2012 Master Agreement Exhibit Letter.
“
IMFS BSA
” means that certain IMFS Business Sale Agreement by and among IMFS, Micron Singapore and Intel Singapore, dated as of the date hereof.
“
IMFS Business
” shall have the meaning set forth in the IMFS BSA.
“
IMFS Fab Operations
” shall have the meaning set forth in the IMFS BSA.
“
IMFS Premises
” shall have the meaning set forth in the IMFS BSA.
“
IMFT
” shall have the meaning set forth in the preamble to this Agreement.
“
IMFT Agreement
” shall have the meaning set forth in the Recitals to this Agreement.
“
IMFT Back-End Products Purchase Agreement
” means that certain IMFT Back-End Products Purchase Agreement by and among IMFT, Intel and Micron that shall be entered into at the Closing, in substantially the form attached as Exhibit GG to the 2012 Master Agreement Exhibit Letter.
“
Indemnified Party
” shall have the meaning set forth in
Section 6.3(A)
of this Agreement.
“
Indemnifying Party
” shall have the meaning set forth in
Section 6.3(A)
of this Agreement.
“
Intel
” shall have the meaning set forth in the preamble to this Agreement.
“
Intel Breach
” means a breach by either of the Intel Parties of any covenant, representation or warranty contained in this Agreement or the IMFS BSA that has resulted in a Material Adverse Effect or has prevented the satisfaction of any condition to the obligations of the Parties, where such breach has not been waived by all of the Micron Parties or cured by the breaching Party, within 30 days after written notice thereof from either Micron Party (or such longer period as is necessary to effect a cure of the breach, so long as the breaching Party diligently attempts to effect a cure throughout such period and such period does not extend beyond
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).
“
Intel Parties
” shall have the meaning set forth in the preamble to this Agreement.
“
Intel Singapore
” shall have the meaning set forth in the preamble to this Agreement.
“
Intel Singapore Distribution
” shall have the meaning set forth in
Section 2.8(A)(2)
of this Agreement.
“
Integrated Circuit
” means an integral unit comprising one or more active and/or passive circuit elements associated on one or more substrates, such unit forming, or contributing to the formation of, a circuit for performing electrical functions and, if provided therewith, housing and/or supporting means.
“
JAMS
” means Judicial Arbitration and Mediation Services.
“
Joint Venture Documents
” means any or all of this Agreement, the Termination Agreements, the Continuing Agreements, the Contemporaneously Executed Agreements, the Amended Agreements and the New Agreements, but excluding the Asset Transaction Agreements.
“
JTC Lease
” shall have the meaning set forth in the IMFS BSA.
“
Lehi Fab
” shall have the meaning set forth in Section 4.10(A)(2) of this Agreement.
“
Lien
” means any charge, claim, mortgage, lien, option, pledge, security interest or other restriction of any kind (other than those created under applicable United States federal or state securities laws).
“
Liquidating Event
” shall have the meaning set forth in the IMFT Agreement.
“
Losses
” shall have the meaning set forth in
Section 6.2(A)
of this Agreement.
“
Manager
” shall have the meaning set forth in the IMFT Agreement or the IMFS Agreement, as applicable.
“
Material Adverse Effect
” means (i) a material adverse effect on the business, results of operations or financial condition of a Party and its subsidiaries, taken as a whole, or (ii) any change or effect that prevents or materially impedes or delays the consummation of the transactions contemplated by this Agreement, the Asset Transaction Agreements and the Joint Venture Documents and the other transactions contemplated hereby and thereby, all taken as a whole;
provided
, that changes and effects attributable to changes in Applicable Law of general applicability or interpretations thereof by courts or Governmental Entities shall not be deemed, either alone or in combination, to constitute, and shall not be taken into account in determining whether there has been or will be, a Material Adverse Effect.
“
Material Damage
” shall have the meaning set forth in
Section 4.9(C)
of this Agreement.
“
Member
” or “
Members
” means one or both of Intel and Micron, in the case of IMFT, or one or both of Intel Singapore and Micron Singapore, in the case of IMFS.
****
shall have the meaning set forth in the
****
.
“
Micron
” shall have the meaning set forth in the preamble to this Agreement.
“
Micron Breach
” means a breach by either of the Micron Parties of any covenant, representation or warranty contained in this Agreement or the IMFS BSA that has resulted in a Material Adverse Effect or has prevented the satisfaction of any condition to the obligations of the Parties, where such breach has not been waived by all of the Intel Parties or cured by the breaching Party, within 30 days after written notice thereof from either Intel Party (or such longer period as is necessary to effect a cure of the breach, so long as the breaching Party diligently attempts to effect a cure throughout such period and such period does not extend beyond
****
).
“
Micron Parties
” shall have the meaning set forth in the preamble to this Agreement.
“
Micron Purchased Assets
” shall have the meaning set forth in the MTV APSA attached as Exhibit DD to the 2012 Master Agreement Exhibit Letter.
“
Micron Singapore
” shall have the meaning set forth in the preamble to this Agreement.
“
MSA Cash Purchase Price
” shall have the meaning set forth in the IMFS BSA.
“
MSA Purchased Assets
” shall have the meaning set forth in the IMFS BSA.
“
MTV APSA
” means that certain MTV Asset Purchase and Sale Agreement by and among IMFT, Micron and Intel, to be entered into as of the Closing.
“
MTV Fab
” shall have the meaning set forth in
Section 4.10(A)(1)
of this Agreement.
“
MTV Fab Operations
” shall have the meaning set forth in the form of MTV APSA attached as Exhibit DD to the 2012 Master Agreement Exhibit Letter.
“
MTV Lease Agreement
” shall have the meaning set forth in the MTV APSA attached as Exhibit DD to the 2012 Master Agreement Exhibit Letter.
“
MTV Leased Premises
” shall have the meaning set forth in the MTV APSA attached as Exhibit DD to the 2012 Master Agreement Exhibit Letter.
“
Negotiation Commencement Date
” shall have the meaning set forth in
Section 7.2(B)
.
“
Negotiation Period
” shall have the meaning set forth in
Section 7.2(C)
.
“
Negotiation Trigger
” means (i) the failure to satisfy or waive any closing condition under
Section 5.2
by
****
, other than by reason of an Intel Breach or a Micron Breach, (ii) the giving of notice by any of Intel, Micron or IMFT pursuant to
Section 4.9(D)
of this Agreement of the release of the obligation to enter into the MTV APSA, or (iii) the termination of the IMFS BSA pursuant to
Section 1.6(d)
of the IMFS BSA.
“
New Agreements
” shall have the meaning set forth in
Section 2.6
of this Agreement.
“
Omnibus Agreement
” means that certain Omnibus Agreement dated as of February 27, 2007, by and between Micron and Intel.
“
Order
” shall have the meaning set forth in
Section 5.2(A)
of this Agreement.
“
Party
” means Intel, Intel Singapore, Micron, Micron Singapore, IMFT or IMFS individually, and “
Parties
” means Intel, Intel Singapore, Micron, Micron Singapore, IMFT and IMFS collectively.
“
Person
” or “
Persons
” means any natural person and any corporation, firm, partnership, trust, estate, limited liability company or other entity resulting from any form of association.
“
Post-Closing Adjustment
” shall have the meaning set forth in the MTV APSA attached as Exhibit DD to the 2012 Master Agreement Exhibit Letter.
“
Post-Closing Benefits
” shall have the meaning set forth in
Section 4.13(A)
.
“
Products
” shall have the meaning set forth in the Supply Agreements.
“
Senior Unsecured Note
” means that certain Senior Unsecured Promissory Note made by Micron in the initial principal amount of $65,000,000 that shall be issued to Intel at the Closing, in substantially the form attached as Exhibit V to the 2012 Master Agreement Exhibit Letter.
“
Sharing Interest
” shall have the meaning set forth in the IMFT Agreement or IMFS Agreement, as applicable. For the avoidance of doubt, the relevant Parties’ Sharing Interests as of the date of this Agreement are as follows: (i) with respect to IMFT,
****
for Intel and
****
for Micron; and (ii) with respect to IMFS,
****
for Intel Singapore and
****
for Micron Singapore.
****
****
****
shall have the meaning set forth in
****
of this Agreement.
“
Statement of Work
” shall have the meaning set forth in the Designated Technology Joint Development Program Agreement.
“
Supply Agreements
” means that certain Supply Agreement dated as of February 27, 2007, by and between Intel Singapore and IMFS, that certain Supply Agreement dated as of February 27, 2007, by and between Micron Singapore and IMFS, that certain Supply Agreement dated as of January 6, 2006, by and between Micron and IMFT, and that certain Supply Agreement, dated as of January 6, 2006, by and between Intel and IMFT.
“
Taxes
” means any federal, state, local or foreign net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, service, service use, withholding, payroll, employment, excise, severance, stamp, good and services, occupation, premium, property, customs,
duties or other type of fiscal levy and all other taxes, governmental fees, registration fees, assessments or charges of any kind whatsoever, together with any interest and penalties, additions to tax or additional amounts imposed or assessed with respect thereto.
“
Termination Agreements
” shall have the meaning set forth in
Section 2.2
of this Agreement.
“
Third Party Claim
” means any claim, demand, lawsuit, complaint, cross-complaint or counter-complaint, arbitration, opposition, cancellation proceeding, or other legal or arbitral proceeding of any nature, brought in any court, tribunal or judicial forum anywhere in the world, regardless of the manner in which such proceeding is captioned or styled brought by any Person, other than Intel or Micron or any of their subsidiaries or their officers, directors, employees or agents (in their capacities as such).
“
Works
” shall have the meaning set forth in
Section 4.9(B)
of this Agreement.
EXHIBIT 10.105
CONFIDENTIAL TREATMENT:
MICRON TECHNOLOGY, INC. HAS REQUESTED THAT THE OMITTED PORTIONS OF THIS DOCUMENT, WHICH ARE INDICATED BY ASTERISKS, BE AFFORDED CONFIDENTIAL TREATMENT PURSUANT TO RULE 24b-2 UNDER THE SECURITIES EXCHANGE ACT OF 1934. MICRON TECHNOLOGY, INC. HAS SEPARATELY FILED THE OMITTED PORTIONS OF THE DOCUMENT WITH THE SECURITIES AND EXCHANGE COMMISSION.
IMFS BUSINESS SALE AGREEMENT
BY AND AMONG
INTEL TECHNOLOGY ASIA PTE LTD,
MICRON SEMICONDUCTOR ASIA PTE. LTD.
AND
IM FLASH SINGAPORE, LLP
February 27, 2012
TABLE OF CONTENTS
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ARTICLE I
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PURCHASE AND SALE; ASSUMED LIABILITIES; CLOSING
|
3
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ARTICLE II
|
REPRESENTATIONS AND WARRANTIES OF IMFS
|
13
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ARTICLE III
|
REPRESENTATIONS AND WARRANTIES OF MICRON SINGAPORE
|
15
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ARTICLE IV
|
REPRESENTATIONS AND WARRANTIES OF INTEL SINGAPORE
|
16
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ARTICLE V
|
CONDITIONS TO CLOSING
|
17
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ARTICLE VI
|
COVENANTS
|
24
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ARTICLE VII
|
MISCELLANEOUS
|
28
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ARTICLE VIII
|
DEFINITIONS
|
33
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IMFS BUSINESS SALE AGREEMENT
This
IMFS BUSINESS SALE AGREEMENT
(together with the Schedules attached hereto, this “
Agreement
”), dated as of February 27, 2012
(the “
Effective Date
”), is entered into by and among IM Flash Singapore, LLP, a limited liability partnership organized under the laws of Singapore (“
IMFS
”), Micron Semiconductor Asia Pte. Ltd., a private limited company organized under the laws of Singapore (“
Micron Singapore
”), and Intel Technology Asia Pte Ltd, a private limited company organized under the laws of Singapore (“
Intel Singapore
”). IMFS, Micron Singapore and Intel Singapore are each referred to herein individually as a “
Party
,” and collectively as the “
Parties
.” Unless otherwise defined herein, capitalized terms used in this Agreement shall have the respective meanings ascribed to such terms in
Section 8.1
of this Agreement.
WHEREAS
, Micron Singapore and Intel Singapore are parties to that certain Limited Liability Partnership Agreement of IMFS, dated as of February 27, 2007 (the “
IMFS Agreement
”);
WHEREAS
, IMFS is engaged in the manufacture of NAND Flash Memory Products (as defined in the IMFS Agreement) at the IMFS Premises (the “
IMFS Fab Operations
”);
WHEREAS
, subject to the terms and conditions set forth in this Agreement, IMFS desires to sell to Micron Singapore, and Micron Singapore desires to purchase from IMFS, the IMFS Business;
WHEREAS
, the consummation of the transactions contemplated by this Agreement shall occur contemporaneously with the Closing under, and is subject to, that certain 2012 Master Agreement, dated as of the Effective Date (the “
2012 Master Agreement
”);
WHEREAS
, to permit the consummation of the transactions and occurrence of the events provided for in the 2012 Master Agreement, including the distributions from IMFS to Micron Singapore and Intel Singapore and the resignation of Intel Singapore as a Member of IMFS, Micron Singapore and Intel Singapore intend to amend the IMFS Agreement immediately prior to the Closing.
NOW, THEREFORE
, in consideration of the foregoing and of the mutual representations, warranties and covenants contained in this Agreement as well as other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties to this Agreement hereby agree as follows:
ARTICLE I
PURCHASE AND SALE; ASSUMED LIABILITIES; CLOSING
1.1
IMFS Business
. Subject to the terms and conditions of this Agreement, at the Closing, IMFS will sell, transfer, convey, assign and deliver to Micron Singapore, and Micron Singapore will purchase and receive from IMFS, all of IMFS’s rights, title and interest in and to the whole of the IMFS Business as a going concern, including all assets used in the IMFS Business and that are listed in
Schedule 1.1
to the IMFS BSA Disclosure Letter, except for any Excluded Assets (collectively, the “
MSA Purchased Assets
”).
1.2
Excluded Assets
. Notwithstanding any other provision in this Agreement to the contrary, the MSA Purchased Assets shall not include (a) any of IMFS’s rights, title and interest in and to the Back-End Products existing as of the Closing, which will be transferred to Intel Singapore at the Closing pursuant to the IMFS Back-End Products Purchase Agreement, (b) the proceeds and rights described in
Section 1.6(a)
and
Section 1.6(c)
and (c) any assets described in
Schedule 1.2
to the IMFS BSA Disclosure Letter (the “
Excluded Assets
”).
1.3
Assumed Liabilities
. Subject to
Section 1.4
, Micron Singapore will assume from IMFS and shall, from and after the Closing Date, timely pay, discharge, perform or otherwise satisfy all Liabilities and obligations of IMFS, whether arising or accruing before or after the Closing Date and whether known or unknown, absolute or contingent, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of IMFS, including the Liabilities and obligations listed in
Schedule 1.3
to the IMFS BSA Disclosure Letter, but excluding the Retained Liabilities (as defined below) (collectively, the “
Assumed Liabilities
”).
1.4
Retained Liabilities
. Notwithstanding any provision in this Agreement to the contrary, Micron Singapore is not assuming, and IMFS shall pay, discharge, perform or otherwise satisfy any product liability, warranty, refund and similar Liabilities of IMFS or claims arising against IMFS with respect to any products manufactured at the IMFS Fab Operations prior to the Closing Date (collectively, the “
Retained Liabilities
”).
1.5
Title and Risk
. Title and risk of loss or damage to the MSA Purchased Assets shall pass to Micron Singapore upon the Closing.
1.6
Damage to IMFS Premises
.
(a)
Damage Prior to Closing
. If, after the date of this Agreement and prior to the Closing, the IMFS Premises or any of the Plant and Machinery is/are damaged in a manner that would require repairs outside the ordinary course, but that damage does not amount to Material Damage, (i) IMFS shall at its own cost and expense repair that damage prior to the Closing to the extent as practical, (ii)
Section 1.6(b)
shall apply and (iii) any such repairs shall be taken into account in determining the net book value of the affected assets for purposes of determining the IMFS Net Book Value. Except as otherwise agreed to in writing by Intel and Micron, to the extent that IMFS has received or has any rights to receive any insurance proceeds or any recovery from any third party in respect of such damage, IMFS shall retain such proceeds and rights for application to such cost and expense of repair.
(b)
Repair Works
. IMFS must in carrying out the repair work to the damage referred to in
Section 1.6(a)
(“
Works
”):
(i) comply with the reasonable directions of Micron Singapore;
(ii) carry out the Works in a proper and workmanlike manner to reinstate the damaged premises as nearly as practicable to the state it was in before the event of damage; and
(iii) cause as little interruption to the operation of the rest of the premises within the IMFS Premises as is reasonable in the circumstances.
(c)
Material Damage
. For the purpose of this
Section 1.6
, “
Material Damage
” means damage to or destruction of the
****
or any part thereof such that either (i) will require the expenditure of more than
****
to restore the
****
as nearly as practicable to the condition that the
****
were in immediately prior to the occurrence of such event, or (ii) reduce the
****
of the
****
by at least
****
immediately prior to the occurrence of such event, which
****
is reasonably expected to be incapable of being substantially restored within a period of
****
. Except as otherwise agreed to in writing by Intel and Micron, to the extent that IMFS has received or has any rights to receive any insurance proceeds or any recovery from any third party in respect of such Material Damage, IMFS shall retain such proceeds and rights for application to such cost and expense of repair.
(d)
Right to Terminate
. If there is Material Damage prior to the Closing, any of the Parties shall be entitled to terminate this Agreement by giving written notice to the other Parties, and upon such termination the terms of
Section 5.5(e)
shall apply;
provided
,
however
, that in the case of any Material Damage resulting from a reduction in
****
, as contemplated by
Section 1.6(c)(ii)
, no Party shall be entitled to provide such notice, and no Party shall be entitled to terminate this Agreement, if such Material Damage is reasonably expected to be capable of repair by
****
and such repair is effected prior to such date. IMFS will use reasonable efforts to repair such damage as promptly as practicable, and IMFS will provide Intel Singapore and Micron Singapore with full access to the
****
to observe and monitor any such repairs.
1.7
Purchase Price
. IMFS shall prepare in good faith and deliver to Micron Singapore three Business Days prior to the Closing a statement setting forth a good faith estimate of the IMFS Net Book Value as of the Closing. In consideration for the purchase of the IMFS Business contemplated by
Section 1.1
, Micron Singapore will, at the Closing:
(a) pay and deliver to IMFS cash (the “
MSA Cash Purchase Price
”) in an aggregate amount equal to the sum of (i)
****
(which amount represents the fair market value of the IMFS Premises as determined by the Appointed Valuer) multiplied by the exchange rate of U.S. dollars per Singapore dollar reported in the
Wall Street Journal
on the third Business Day immediately preceding the Closing Date (the “
IMFS Premises Value
”), and (ii) if the Intel Singapore Distribution (as defined in the 2012 Master Agreement) is greater than the IMFS Premises Value, an amount equal to the positive difference between the Intel Singapore Distribution (as defined in the 2012 Master Agreement) and the IMFS Premises Value;
(b) issue and deliver a promissory note of Micron Singapore to IMFS, in substantially the form attached as
Exhibit A
to the IMFS BSA Exhibit Letter and having an initial principal balance equal to the estimated IMFS Net Book Value as set forth in the statement delivered by IMFS, less the MSA Cash Purchase Price (the “
Estimated
MSA
Purchase Price Note
”); and
(c) assume the Assumed Liabilities.
1.8
Adjustment of Purchase Price
.
(a)
Post-Closing Statements
. As soon as available, but in no event later than 90 days after the Closing Date, Micron Singapore shall prepare and deliver to IMFS a written notice setting forth the IMFS Net Book Value and the Post-Closing Adjustment, if any, together with reasonably detailed supporting information (the “
Post-Closing Statement
”).
(b)
Objections
. Unless IMFS notifies Micron Singapore in writing within 30 days following delivery of such Post-Closing Statement of any objection to the computation of the IMFS Net Book Value or Post-Closing Adjustment, if any, set forth therein (a “
Notice of Objection
”), the Post-Closing Statement shall become final and binding. Following delivery of the Post-Closing Statement, Micron Singapore shall permit IMFS and its representatives to review the working papers of Micron Singapore relating to the Post-Closing Statement and, at IMFS’s written request, shall provide IMFS and its representatives access to or copies of Micron Singapore’s (and IMFS’s) books and records relating to the IMFS Business reasonably requested for purposes of IMFS’s review of the Post-Closing Statement and preparation of any Notice of Objection. Any Notice of Objection shall specify the basis for the objections set forth therein in reasonable detail. If IMFS provides a Notice of Objection within such 30-day period, Micron Singapore and IMFS shall, during the 30-day period following receipt of the Notice of Objection, attempt in good faith to resolve any objections. During such 30-day period, Micron Singapore and its representatives shall be permitted to review the working papers of IMFS and its accountants relating to the Notice of Objection and the basis therefor.
(c)
Resolution of Disputes
. If Micron Singapore and IMFS are unable to resolve all objections within such 30-day period, the matters remaining in dispute shall be submitted to the Independent Accounting Firm. Each of Micron Singapore and IMFS shall submit to the Independent Accounting Firm their written briefs detailing their views as to the correct nature and amount of each item remaining in dispute, and the Independent Accounting Firm shall be authorized to resolve the matters remaining in dispute between Micron Singapore and IMFS in accordance with the provisions of this
Section 1.8(c)
within the range of the difference between the positions with respect thereto of Micron Singapore and IMFS. Micron Singapore and IMFS shall instruct, and shall use their commercially reasonably efforts to cause, the Independent Accounting Firm to render its reasoned written decision as to each disputed item as promptly as practicable but in no event later than 60 days after the dispute is submitted. The resolution of disputed items by the Independent Accounting Firm shall be final and binding, and the determination of the Independent Accounting Firm shall constitute an arbitral award that is final, binding and non-appealable and upon which a judgment may be entered by a court having jurisdiction over such dispute. The fees and expenses of the Independent Accounting Firm shall be borne by Micron Singapore and IMFS in inverse proportion as each such Party may prevail on the matters resolved by the Independent Accounting Firm, which proportionate allocation shall be calculated on an aggregate basis based on the relative dollar values of the amounts in dispute, and shall be determined by the Independent Accounting Firm at the time the determination of such firm
is rendered on the merits of the matters submitted. The fees and disbursements of each Party and their representatives incurred in connection with their preparation or review of the Post-Closing Statement, any Notice of Objection and any dispute resolution, as applicable, shall be borne by such party. After the final determination of the IMFS Net Book Value and the Post-Closing Adjustment, if any, no Party shall have any further right to make any claims against another in respect of any element of the IMFS Net Book Value or the Post-Closing Adjustment.
(d)
Post-Closing Payments
. If the Post-Closing Adjustment as finally determined under
Section 1.8(b)
or
(c)
, as applicable, is a positive number, the principal balance of the Estimated MSA Purchase Price Note shall be increased by the amount of the Post-Closing Adjustment. If the Post-Closing Adjustment, as so finally determined, is a negative number, the principal balance of the Estimated MSA Purchase Price Note shall be decreased by the amount of the Post-Closing Adjustment. Any payment or any adjustment to the Estimated MSA Purchase Price Note under this
Section 1.8(d)
shall be made within two Business Days of the final determination of the Post-Closing Adjustment.
1.9
Closing
.
(a)
Contemporaneous Closing
. The closing of the transactions contemplated by this Agreement will occur contemporaneously with the Closing under the 2012 Master Agreement, and is conditioned on the satisfaction or proper waiver of the conditions set forth in
Article V
, except as otherwise mutually agreed by the Parties. “
Closing Date
” means the date on which the Closing occurs.
(b)
IMFS’s Closing Deliveries to Micron Singapore
. Subject to the terms and conditions of this Agreement, at the Closing, IMFS will deliver or cause to be delivered, or make available or permit, the following to Micron Singapore:
(i) a certified copy of the minutes of the board of managers of IMFS authorizing the sale of the IMFS Business to Micron Singapore and the execution by IMFS of this Agreement and of any documents to be entered into pursuant to or in connection with this Agreement;
(ii) evidence of due fulfillment of the conditions specified in
Article V
for which IMFS is responsible;
(iii) a deed of assignment of the Building Agreement or (where the JTC Lease has been issued by the time of Closing) an instrument of transfer of the IMFS Premises and an assignment of all side-letters supplemental to the Building Agreement and the JTC Lease, duly executed by IMFS in favor of Micron Singapore, in substantially the forms attached as
Exhibit B
to the IMFS BSA Exhibit Letter (the “
IMFS Premises Transfer
”);
(iv) the original signed copies/duplicates that IMFS, any Member of IMFS or their affiliates have in their possession of (a) the Building Agreement and where applicable, the JTC Lease and the certificate of title relating to the IMFS Premises (if any) and (b) all side-letters supplemental to the Building Agreement and the JTC Lease;
(v) if applicable, a
****
in relation to the entire purchase consideration for the
****
, issued by
****
to
****
;
(vi) a copy of the notice of transfer of the IMFS Premises to be electronically filed with the Inland Revenue Authority of Singapore after Closing pursuant to IMFS’s obligations under Section 19 of the Property Tax Act (Chapter 254) of Singapore;
(vii) copies of the Temporary Occupation Permit and (if available) the Certificate of Statutory Completion relating to the IMFS Premises;
(viii) the original signed copies/duplicates that IMFS, any Member of IMFS or their affiliates have in their possession, if any, of the Guarantees and Warranties;
(ix) a duly executed absolute legal assignment of the Receivables, in substantially the form attached as
Exhibit C
to the IMFS BSA Exhibit Letter (the “
Assignment
of Receivables
”);
(x) such duly executed assignments and novations of the Contracts with such Third Party Consents (if necessary) as IMFS may have obtained, in substantially the form attached as
Exhibit D
to the IMFS BSA Exhibit Letter (the “
Assignments of Contracts
”);
(xi) such duly executed assignments of the Guarantees and Warranties as IMFS may have obtained, in substantially the form attached as
Exhibit E
to the IMFS BSA Exhibit Letter (the “
Assignments of Guarantees and Warranties
”);
(xii) all other conveyances, transfers, assignments and novations in the Agreed Terms as may be reasonably requested by Micron Singapore (duly executed as a deed by IMFS, any third party and, if so reasonably required by IMFS, Micron Singapore) as IMFS may have obtained, together with the related documents of title and such Third Party Consents as IMFS may have obtained;
(xiii) those MSA Purchased Assets (such as MSA Inventory, Motor Vehicles, Office Equipment and Plant and Machinery) that are capable of transfer by delivery;
(xiv) all documents, books, records, operating manuals, drawings, models and other information relating to the IMFS Business that are in IMFS’s possession, custody or control and all information relating to customers, suppliers, agents and distributors and other information relating to the IMFS Business (including the Relevant Employees) as Micron Singapore may reasonably require;
(xv) originals that IMFS, any Member of IMFS or their affiliates have in their possession of those Permits that are capable of being transferred by IMFS to Micron Singapore and copies of the approvals as IMFS may have obtained of the relevant Governmental Entities to such transfer;
(xvi) subject to the matters set forth in
Schedule 1.9(b)(xvi)
, to the IMFS BSA Disclosure Letter, vacant possession of the IMFS Premises;
(xvii) entry into and possession of the IMFS Premises; and
(xviii) all other documents, certificates, instruments and writings required to be delivered at or prior to the Closing pursuant to this Agreement or reasonably requested by Micron Singapore as IMFS may have obtained.
(c)
Micron Singapore’s Closing Deliveries
. Subject to the terms and conditions of this Agreement, at the Closing, Micron Singapore will deliver the following to IMFS:
(i) a certified copy of the minutes of the board of directors of Micron Singapore authorizing the purchase of the IMFS Business from IMFS and the execution by Micron Singapore of this Agreement and of any documents to be entered into pursuant to or in connection with this Agreement;
(ii) the MSA Cash Purchase Price by wire transfer in immediately available funds;
(iii) the Estimated MSA Purchase Price Note, duly executed by Micron Singapore;
(iv) evidence of due fulfillment of the conditions specified in
Article V
for which Micron Singapore is responsible;
(v) a duly executed counterpart of the IMFS Premises Transfer (where required by the form thereof to be executed by Micron Singapore);
(vi) a duly executed counterpart of the Assignment of Receivables;
(vii) duly executed counterparts of the Assignments of Contracts;
(viii) duly executed counterparts of the Assignments of Guarantees and Warranties; and
(ix) all other documents, certificates, instruments and writings required to be delivered at or prior to the Closing pursuant to this Agreement or reasonably requested by IMFS.
(d)
Intel Singapore’s Closing Deliveries
. Subject to the terms and conditions of this Agreement, at the Closing, Intel Singapore will deliver to Micron Singapore:
(i) a letter signed by a director of Intel Singapore confirming that either (x) Intel Singapore is a resident in Singapore for Tax purposes or (y) Intel Singapore is not a resident in Singapore for Tax purposes, and Intel Singapore has not been assessed as a property trader by the Inland Revenue Authority of Singapore; and
(ii) the resignations of the managers of IMFS appointed by Intel Singapore.
1.10
****
.
(a) Except as otherwise provided in the 2012 Master Agreement,
****
shall pay any and all of the costs and expenses of all
****
that are incurred by either of the Parties in connection with the transfer or conveyance of the
****
and the assumption of the
****
as contemplated by this Agreement, together with any
****
incurred in connection therewith. Each Party shall cooperate in a good faith, commercially reasonable manner as reasonably requested by another Party and at
****
to minimize any
****
and shall provide information reasonably requested by the other Party, to allow the requesting Party to file any
****
related to
****
or to meet any obligations imposed by any
****
.
(b) The Parties acknowledge and agree that the
****
and the
****
shall be sold as a
****
for the purposes of the
****
and
****
shall not be chargeable in respect of the purchase consideration. To this end,
****
agrees that after Closing it shall use the
****
in carrying on the same kind of business as the
****
, whether or not as part of any existing business of
****
.
****
and
****
shall in consultation with each other jointly request a
****
that
****
is not payable on the purchase consideration pursuant to the
****
.
****
and
****
shall cooperate with and provide all necessary information and assistance to each other in respect of the request and application for the
****
. In connection with the foregoing, the Parties agree that in the event there are any requests and/or enquiries from any Tax Authority, the same shall be dealt with by
****
and
****
in consultation with each other and
****
and
****
shall cooperate with and provide all necessary information and assistance required by such Tax Authority upon being requested to do so by the other. However, if applicable,
****
shall promptly provide
****
with a
****
.
****
shall bear all
****
payable in connection with the purchase of the
****
.
1.11
Non-Assignable Assets
. To the extent that any Contract, Permit or other asset intended to be assigned pursuant to the terms of
Section 1.1
cannot be assigned without the consent, approval or waiver of a third person or entity (including a Governmental Entity), or if such assignment or attempted assignment would constitute a breach thereof or a violation of any law (each, a “
Non-Assignable Asset
”), then nothing in this Agreement shall constitute an assignment or require the assignment thereof prior to the time at which all consents, approvals and waivers necessary for such assignment have been obtained. To the extent and for so long as all consents, approvals and waivers required for the assignment of any Non-Assignable Asset have not been obtained by IMFS after the Closing, IMFS shall use commercially reasonable efforts, at Micron Singapore’s cost, to (a) provide to Micron Singapore the financial and business benefits of such
Non-Assignable Asset and (b) enforce, at the request of Micron Singapore, for the account of Micron Singapore, any rights of IMFS arising from any such Non-Assignable Asset (including the right to elect to terminate in accordance with the terms thereof). Micron Singapore will perform any portion of a Non-Assignable Asset the financial and business benefits of which are being provided to Micron Singapore in accordance with clause (a) of the preceding sentence to the same extent required of IMFS under the terms of such Non-Assignable Asset (i.e., in the same (or as similar as practicable) manner and time, and with the same quality, so required of IMFS). Following the Closing, IMFS shall not terminate, modify or amend any Non-Assignable Asset without Micron Singapore’s prior written consent. Micron Singapore agrees that neither IMFS nor Intel Singapore shall have any liability to Micron Singapore arising out of or relating to the failure to obtain any such consent that may be required in connection with the transactions contemplated by this Agreement or because of any circumstances resulting therefrom, nor shall any such failure affect the consideration payable to IMFS hereunder.
1.12
Employees
.
(a)
Transfer of Employees under the Employment Act.
Subject to the Closing, the transfer of the employment of the employees of IMFS on the Closing who are protected under the Employment Act (the “
Transferred Employees
”) shall be governed by Section 18A of the Employment Act and IMFS and Micron Singapore shall each comply with their respective obligations under the said Section 18A. Micron Singapore may offer the Transferred Employees new written terms and conditions of employment, in the form determined by it, to take effect immediately following the transfer of the employment of the Transferred Employees. Such new terms and conditions must include a commitment by
****
to pay any installment of an
****
that would otherwise fall due for payment after the Closing Date, but such payment may be subject to materially similar contingencies upon payment of the installment as set out in the
****
. IMFS shall use its best efforts to encourage the Transferred Employees to accept such offers of new terms and conditions and shall assist Micron Singapore to distribute the documents containing such new terms and conditions. If any Transferred Employee does not accept such offer of new terms and conditions by Micron Singapore by the Closing, such Transferred Employee shall nevertheless automatically transfer to the employment of Micron Singapore on the Closing by operation of the said Section 18A.
(b)
Executive Employees
. Micron Singapore shall make a written offer of employment as provided in
Section 1.12(c)
to each Relevant Employee who will not be a Transferred Employee (each an “
Executive Employee
”), which offer shall be conditional upon the Closing (such offer shall hereinafter be referred to as “
MSA’s
Offer
”). If any such Executive Employee accepts MSA’s Offer and commences employment with Micron Singapore as a result, the employment of the Executive Employee with IMFS will be deemed to be terminated by mutual consent with effect from the close of business on the day before the Closing.
****
will not pay to any
****
as a result of such termination any payment for
****
nor any
****
which would otherwise fall due for payment after the Closing Date. The document recording the terms upon which the Executive Employee’s employment with IMFS terminates by mutual consent shall be in the form customarily used by IMFS (the “
Termination Agreement
”).
(c)
MSA’s Offer
(i) MSA’s Offer to each Executive Employee shall be made on such terms and conditions determined by Micron Singapore, provided that:
|
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|
|
A.
|
Micron Singapore agrees that any employment with Micron Singapore that commences as a result of the Executive Employee’s acceptance of MSA’s Offer shall commence upon Closing;
|
|
|
|
|
B.
|
Micron Singapore will recognize and assume liability for the
****
as at Closing;
|
|
|
|
|
C.
|
Micron Singapore must agree to pay
****
which would otherwise fall due for payment after the Closing Date, but such payment may be subject to materially similar contingencies upon payment of the installment as set out in the
****
; and
|
|
|
|
|
D.
|
Micron Singapore will recognize each
****
with
****
as
****
for the purpose of determining the
****
, but only to the extent to which the
****
has not already received or been provided with the
****
in respect of a
****
.
|
(ii) IMFS shall use reasonable efforts to persuade the Executive Employees to accept MSA’s Offer and shall assist Micron Singapore to distribute MSA’s Offer to the Executive Employees, together with the Termination Agreement.
(d)
Obligations Regarding the Employees
(i) IMFS shall perform and discharge all its obligations in respect of all the Relevant Employees for its own account up to and including the day immediately preceding the Closing. Without limitation to the foregoing, IMFS shall pay for:
|
|
|
|
A.
|
all salaries, emoluments and accrued leave entitlements (other than unused annual leave for Executive Employees who accept MSA’s Offer) and all other amounts (including, without limitation, contributions payable to any provident fund or pension scheme) due or accruing in respect of the Relevant Employees who commence employment with Micron Singapore up to the day immediately preceding the Closing Date; and
|
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B.
|
all salaries, emoluments and accrued leave entitlements and all other amounts (including, without limitation, contributions payable to any provident fund or pension scheme) due or accruing in respect of the Executive Employees who do not commencement employment with Micron Singapore up to the day immediately preceding the Closing Date.
|
(ii) Notwithstanding the foregoing, from and after the Closing,
****
shall be
****
from and against, any and all
****
.
(iii) Micron Singapore shall, at its own cost and expense, make the necessary applications to the Ministry of Manpower (the “
MOM
”) to obtain all work permits and employment passes required by those of the Transferred Employees and the Executive Employees (who have accepted MSA’s Offer) who are not Singapore citizens or Singapore Permanent Residents to work for Micron Singapore. IMFS and Micron Singapore shall promptly co-operate with and provide all necessary information and assistance reasonably required by the MOM upon being requested to do so.
(e)
Offers to Seconded Employees
. From and after the date of this Agreement, Micron Singapore may make offers to and hire any employees of IM Flash Technologies, LLC and Intel Corporation or its subsidiaries who are rendering service to IMFS as seconded personnel.
1.13
Interested Member Transactions
. With respect to Micron Singapore’s purchase of the MSA Purchased Assets pursuant to the terms of this Agreement, Micron Singapore is an Interested Member (as defined in the IMFS Agreement), and the Parties hereby agree that any actions that are required to be or that may be taken by IMFS in connection with the sale of the MSA Purchased Assets to Micron Singapore as contemplated by this Agreement, including with respect to matters described in
Sections 1.6
and
5.4
, may be taken by Intel Singapore on IMFS’s behalf (as contemplated by Section 6.3(B) of the IMFS Agreement) or may be taken by IMFS only with the approval of a majority of the managers of IMFS appointed by Intel Singapore (as contemplated by Section 6.3(B) of the IMFS Agreement). In acting on IMFS’s behalf, Intel Singapore shall not take any action in violation of this Agreement. Each of Micron Singapore and Intel Singapore shall, or shall cause its appointed managers to, approve the terms of this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF IMFS
IMFS hereby makes the representations and warranties set forth in this
Article II
to Micron Singapore and Intel Singapore, except and to the extent as may be disclosed in a Schedule to this Agreement.
2.1
Legal Existence and Power.
IMFS is a limited liability partnership duly organized and validly existing under the laws of Singapore. IMFS has the requisite legal power and authority
to carry on its business as now conducted. IMFS is duly qualified to do business in each jurisdiction in which such qualification is required, except where the failure to be so qualified would not be reasonably expected to have a Material Adverse Effect.
2.2
Assets.
Except as disclosed in
Schedule 2.2
to the IMFS BSA Disclosure Letter, IMFS has legal and beneficial title to all of the tangible personal property that forms any part of the MSA Purchased Assets. IMFS has a valid leasehold interest in all real property interests necessary for the operation of the IMFS Business.
2.3
Authorization; Enforceability.
IMFS has the requisite legal power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery by IMFS of this Agreement and the performance by IMFS of its obligations contemplated hereby have been duly authorized by IMFS and do not violate the terms of the IMFS Agreement. This Agreement has been duly executed and delivered by IMFS, and this Agreement constitutes the valid and binding agreement of IMFS, enforceable against IMFS in accordance with its terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
2.4
Governmental Authorization.
Except as disclosed in
Schedule 2.4
to the IMFS BSA Disclosure Letter, the execution, delivery and performance by IMFS of this Agreement will not require any action by or in respect of, or filing with, any Governmental Entity (disregarding the terms of
Section 1.11
for the purposes of this representation).
2.5
Non-Contravention; Consents.
Except as disclosed in
Schedule 2.5
to the IMFS BSA Disclosure Letter and disregarding the terms of
Section 1.11
for the purposes of this representation, the execution, delivery and performance by IMFS of this Agreement does not (a) violate, in any material respect, any Applicable Law or Order, (b) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which IMFS is a party), (c) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of IMFS or to a loss of any benefit to which IMFS is entitled under, any agreement or other instrument binding upon IMFS or (d) result in the creation or imposition of any Lien on any asset of IMFS that, in the case of clauses (c) and (d), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
2.6
Litigation.
Except as disclosed in
Schedule 2.6
to the IMFS BSA Disclosure Letter, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to IMFS’s knowledge, threatened, against or affecting IMFS or any of its properties that, if determined or resolved adversely to IMFS, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
2.7
Brokerage.
No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this
Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of IMFS.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF MICRON SINGAPORE
Micron Singapore hereby makes the representations and warranties set forth in this
Article III
to IMFS and Intel Singapore, except and to the extent as may be disclosed in a Schedule to this Agreement:
3.1
Corporate Existence and Power
. Micron Singapore is a private limited company duly incorporated and validly existing under the laws of Singapore. Micron Singapore has the requisite corporate power and authority to carry on its business as now conducted. Micron Singapore is duly qualified to do business in each jurisdiction in which such qualification is required, except where the failure to be so qualified would not reasonably be expected to have a Material Adverse Effect.
3.2
Authorization; Enforceability
. Micron Singapore has the requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery by Micron Singapore of this Agreement and the performance by Micron Singapore of its obligations contemplated hereby have been duly authorized by Micron Singapore and do not violate the terms of the memorandum and articles of association of Micron Singapore. This Agreement has been duly executed and delivered by Micron Singapore, and this Agreement constitutes the valid and binding agreement of Micron Singapore, enforceable against Micron Singapore in accordance with its terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
3.3
Governmental Authorization
. Except as disclosed in
Schedule 3.3
to the IMFS BSA Disclosure Letter, the execution, delivery and performance by Micron Singapore of this Agreement will not require any action by or in respect of, or filing with, any Governmental Entity.
3.4
Non-Contravention; Consents
. Except as disclosed in
Schedule 3.4
to the IMFS BSA Disclosure Letter, the execution, delivery and performance by Micron Singapore of this Agreement does not and will not (a) violate, in any material respect, any Applicable Law or Order, (b) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Micron Singapore is a party), (c) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both) a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of Micron Singapore or to a loss of any benefit to which Micron Singapore is entitled under, any agreement or other instrument binding upon Micron Singapore or (d) result in the creation or imposition of any Lien on any asset of Micron Singapore that, in the case of clauses (c) and (d), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
3.5
Litigation
. Except as disclosed in
Schedule 3.5
to the IMFS BSA Disclosure Letter, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to Micron Singapore’s knowledge, threatened, against or affecting Micron Singapore or any of its properties that, if determined or resolved adversely to Micron Singapore, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
3.6
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of Micron Singapore.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF INTEL SINGAPORE
Intel Singapore hereby makes the representations and warranties set forth in this
Article IV
to IMFS and Micron Singapore, except and to the extent as may be disclosed in a Schedule to this Agreement:
4.1
Corporate Existence and Power
. Intel Singapore is a private limited company duly incorporated, validly existing and in good standing under the laws of Singapore. Intel Singapore has the requisite corporate power and authority to carry on its business as now conducted. Intel Singapore is duly qualified to do business in each jurisdiction in which such qualification is required, except where the failure to be so qualified or in good standing would not be reasonably expected to have a Material Adverse Effect.
4.2
Authorization; Enforceability
. Intel Singapore has the requisite corporate power and authority to enter into this Agreement and to perform its obligations hereunder. The execution and delivery by Intel Singapore of this Agreement and the performance by Intel Singapore of its obligations contemplated hereby have been duly authorized by Intel Singapore and do not violate the terms of the memorandum and articles of association of Intel Singapore. This Agreement has been duly executed and delivered by Intel Singapore, and this Agreement constitutes the valid and binding agreement of Intel Singapore, enforceable against Intel Singapore in accordance with its terms, except to the extent that their enforceability may be subject to applicable bankruptcy, insolvency, reorganization, moratorium and similar laws affecting the enforcement of creditors’ rights generally.
4.3
Governmental Authorization
. Except as disclosed in
Schedule 4.3
to the IMFS BSA Disclosure Letter, the execution, delivery and performance by Intel Singapore of this Agreement will not require any action by or in respect of, or filing with, any Governmental Entity.
4.4
Non-Contravention; Consents.
Except as disclosed in
Schedule 4.4
to the IMFS BSA Disclosure Letter, the execution, delivery and performance by Intel Singapore of this Agreement does not and will not (a) violate, in any material respect, any Applicable Law or Order, (b) require any filing with, or permit, consent or approval of, or the giving of any notice to (including under any right of first refusal or similar provision), any Person (including filings, consents or approvals required under any licenses or leases to which Intel Singapore is a party), (c) result in a violation or breach of, conflict with, constitute (with or without due notice or lapse of time or both)
a default under, or give rise to any right of termination, cancellation or acceleration of any charter document of or any right or obligation of Intel Singapore or to a loss of any benefit to which Intel Singapore is entitled under, any agreement or other instrument binding upon Intel Singapore or (d) result in the creation or imposition of any Lien on any asset of Intel Singapore that, in the case of clauses (c) or (d), would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
4.5
Litigation
. Except as disclosed in
Schedule 4.5
to the IMFS BSA Disclosure Letter, there is no action, suit, arbitration or administrative or other proceeding or investigation pending or, to Intel Singapore’s knowledge, threatened, against or affecting Intel Singapore or any of its properties that, if determined or resolved adversely to Intel Singapore, would reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
4.6
Brokerage
. No finder, broker, investment banker or financial advisor is entitled to any brokerage, finders’ or other fees or commissions from any other Person in connection with this Agreement or the negotiation looking toward the consummation of such transactions, based upon arrangements made by or on behalf of Intel Singapore.
ARTICLE V
CONDITIONS TO CLOSING
5.1
Conditions of Micron Singapore to Closing
. The obligations of Micron Singapore to effect the transactions contemplated by this Agreement at the Closing are subject to the following conditions:
(a)
Amendment of IMFS Agreement
. Each of Micron Singapore and Intel Singapore shall have amended the IMFS Agreement, with effect immediately prior to Closing, to permit the consummation of the transactions and the occurrence of the events provided for in the 2012 Master Agreement, including the distributions from IMFS to Micron Singapore and Intel Singapore and the withdrawal of Intel Singapore as a Member of IMFS, by executing an amendment to the IMFS Agreement in substantially the form attached as
Exhibit F
to the IMFS BSA Exhibit Letter.
(b)
Third Party Consents
. The
following Third Party Consents having been obtained prior to Closing on terms reasonably
acceptable to Micron Singapore (which terms shall be deemed to be reasonably acceptable to Micron Singapore if they do not materially affect Micron Singapore in an adverse manner, taking into account any rights of Micron Singapore to indemnification under Section 6.2 of the 2012 Master Agreement) and not having been revoked prior to Closing:
(i) subject to the provisions of
Section 5.4
, all the IMFS Land Sale Approvals; and
(ii) the approval of the relevant
****
for the
****
.
(c)
Representations, Warranties and Covenants of IMFS and Intel Singapore
.
(i) The representations and warranties of IMFS set forth in
Article II
that are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect shall be true and correct in all respects, and all other representations and warranties of IMFS contained in this Agreement shall be true and correct in all material respects, at and as of the Closing, except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date;
(ii) the representations and warranties of Intel Singapore set forth in
Article IV
that are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect shall be true and correct in all respects, and all other representations and warranties of Intel Singapore contained in this Agreement shall be true and correct in all material respects, at and as of the Closing, except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date; and
(iii) each of IMFS and Intel Singapore shall have performed in all material respects all covenants required of it by this Agreement as of the Closing.
(d)
Closing Deliveries
. Micron Singapore shall have received the Closing deliveries required of IMFS pursuant to
Section 1.9(b)
and of Intel Singapore pursuant to
Section 1.9(d)
.
(e)
Governmental Filings
. All approvals required to be made or obtained under any Antitrust Law shall have been made or obtained, and any required waiting periods under any Antitrust Law shall have expired or been terminated, in each case without the imposition of any conditions.
(f)
Litigation
. There shall not be any actual or threatened litigation (including any investigation by any Governmental Entity) or Order that would, in the judgment of Micron Singapore, made in good faith and based upon the advice of counsel, restrain, enjoin, prohibit, invalidate or otherwise prevent the consummation of the transactions contemplated by this Agreement.
(g)
No Compulsory Acquisition
. There being no acquisition or notice of acquisition or intended acquisition of the IMFS Premises or any material part of the IMFS Premises by or from any Governmental Entity.
(h)
2012 Master Agreement Transactions
. Each of the transactions contemplated by the 2012 Master Agreement shall have been consummated to the extent required to be consummated contemporaneously with the transactions contemplated by this Agreement.
5.2
Conditions of IMFS to Closing
. The obligations of IMFS to effect the transactions contemplated by this Agreement at the Closing shall be subject to the following conditions:
(a)
Amendment of IMFS Agreement
. Each of Micron Singapore and Intel Singapore shall have amended the IMFS Agreement, with effect immediately prior to Closing, to permit the consummation of the transactions and the occurrence of the events provided for in the 2012 Master Agreement, including the distributions from IMFS to Micron Singapore and Intel Singapore and the withdrawal of Intel Singapore as a Member of IMFS, by executing an amendment to the IMFS Agreement in substantially the form attached as
Exhibit F
to the IMFS BSA Exhibit Letter.
(b)
Third Party Consents
. The
following Third Party Consents having been obtained prior to Closing on terms
reasonably
acceptable to IMFS (which terms shall be deemed to be reasonably acceptable to IMFS if they do not materially affect IMFS in an adverse manner, taking into account any rights of IMFS to indemnification under Section 6.2 of the 2012 Master Agreement) and not having been revoked prior to Closing:
(i) subject to the provisions of
Section 5.4
, all the IMFS Land Sale Approvals; and
(ii) the approval of the relevant
****
for the
****
.
(c)
Representations, Warranties and Covenants of Micron Singapore and Intel Singapore
.
(i) The representations and warranties of Micron Singapore set forth in
Article III
that are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect shall be true and correct in all respects, and all other representations and warranties of Micron Singapore contained in this Agreement shall be true and correct in all material respects, at and as of the Closing, except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date;
(ii) the representations and warranties of Intel Singapore set forth in
Article IV
that are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect shall be true and correct in all respects, and all other representations and warranties of Intel Singapore contained in this Agreement shall be true and correct in all material respects, at and as of the Closing, except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date; and
(iii) each of Micron Singapore and Intel Singapore shall have performed in all material respects all covenants required of it by this Agreement as of the Closing.
(d)
Closing Deliveries
. IMFS shall have received the closing deliveries required of Micron Singapore pursuant to
Section 1.9(c)
and of Intel Singapore pursuant to
Section 1.9(d)
.
(e)
Governmental Filings
. All approvals required to be made or obtained under any Antitrust Law shall have been made or obtained, and any required waiting periods under any Antitrust Law shall have expired or been terminated, in each case without the imposition of any conditions.
(f)
Litigation
. There shall not be any actual or threatened litigation (including any investigation by any Governmental Entity) or Order that would, in the judgment of IMFS, made in good faith and based upon the advice of counsel, restrain, enjoin, prohibit, invalidate or otherwise prevent the consummation of the transactions contemplated by this Agreement.
(g)
Payment of Purchase Price
. IMFS shall have received the MSA Cash Purchase Price in immediately available funds and the Estimated MSA Purchase Price Note.
(h)
2012 Master Agreement Transactions
. Each of the transactions contemplated by the 2012 Master Agreement shall have been consummated to the extent required to be consummated contemporaneously with the transactions contemplated by this Agreement.
5.3
Conditions of Intel Singapore to Closing
. The obligations of Intel Singapore to effect the transactions contemplated by this Agreement at the Closing are subject to the following conditions:
(a)
Amendment of IMFS Agreement
. Each of Micron Singapore and Intel Singapore shall have amended the IMFS Agreement, with effect immediately prior to Closing, to permit the consummation of the transactions and occurrence of the events provided for in the 2012 Master Agreement, including the distributions from IMFS to Micron Singapore and Intel Singapore and the withdrawal of Intel Singapore as a Member of IMFS, by executing an amendment to the IMFS Agreement in substantially the form attached as
Exhibit F
to the IMFS BSA Exhibit Letter.
(b)
Third Party Consents
. The
following Third Party Consents having been obtained prior to Closing on terms
reasonably
acceptable to Intel Singapore (which terms shall be deemed to be reasonably acceptable to Intel Singapore if they do not materially affect Intel Singapore in an adverse manner, taking into account any rights of Intel Singapore to indemnification under Section 6.2 of the 2012 Master Agreement) and not having been revoked prior to Closing:
(i) subject to the provisions of
Section 5.4
, all the IMFS Land Sale Approvals; and
(ii) the approval of the relevant
****
for the
****
.
(c)
Representations, Warranties and Covenants of Micron Singapore and IMFS
.
(i) The representations and warranties of IMFS set forth in
Article II
that are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect shall be true and correct in all respects, and all other representations and warranties of IMFS contained in this Agreement shall be true and correct in all material respects, at and as of the Closing, except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date;
(ii) the representations and warranties of Micron Singapore set forth in
Article III
that are subject to qualifications and exceptions contained therein relating to materiality or Material Adverse Effect shall be true and correct in all respects, and all other representations and warranties of Micron Singapore contained in this Agreement shall be true and correct in all material respects, at and as of the Closing, except to the extent that such representations and warranties speak as of another date, in which case such representations and warranties shall be true and correct as of such other date; and
(iii) each of Micron Singapore and IMFS shall have performed in all material respects all covenants required of it by this Agreement as of the Closing.
(d)
Closing Deliveries
. Intel Singapore shall have received copies of the Closing deliveries required to be delivered to Micron Singapore by IMFS pursuant to
Section 1.9(b)
and to IMFS by Micron Singapore pursuant to
Section 1.9(c)
.
(e)
Governmental Filings
. All approvals required to be made or obtained under any Antitrust Law shall have been made or obtained, and any required waiting periods under any Antitrust Law shall have expired or been terminated, in each case without the imposition of any conditions.
(f)
Litigation
. There shall not be any actual or threatened litigation (including any investigation by any Governmental Entity) or Order that would, in the judgment of Intel Singapore, made in good faith and based upon the advice of counsel, restrain, enjoin, prohibit, invalidate or otherwise prevent the consummation of the transactions contemplated by this Agreement.
(g)
No Compulsory Acquisition
. There being no acquisition or notice of acquisition or intended acquisition of the IMFS Premises or any material part of the IMFS Premises by or from any Governmental Entity.
(h)
2012 Master Agreement Transactions
. Each of the transactions contemplated by the 2012 Master Agreement shall have been consummated to the extent required to be consummated contemporaneously with the transactions contemplated by this Agreement.
5.4
Obligations of the Parties with respect to IMFS Land Sale Approvals
.
(a) IMFS shall promptly after the date of this Agreement, apply to JTC and the Competent Authorities (if applicable) for the IMFS Land Sale Approvals. Subject to
Section 5.4(c)
, each of Micron Singapore and Intel Singapore shall render all reasonable assistance to IMFS in connection with IMFS’s application for the IMFS Land Sale Approvals.
(b) Subject to
Sections 5.4(d)
and
5.4(e)
, each of IMFS and Micron Singapore shall comply with the terms and conditions imposed on each of them by JTC and/or any of the Competent Authorities as conditions for the grant of the IMFS Land Sale Approvals.
(c) Micron Singapore shall bear the fees (including
****
) payable to JTC and the Competent Authorities for the application for the IMFS Land Sale Approvals as well as fees, charges, costs and expenses imposed by JTC in respect of the sale of the IMFS Premises, including fees, charges costs and expenses related to any Environmental Baseline Study (“
EBS
”) or any environmental clean-up and/or remediation or preventive works or measures.
(d) The following provisions shall apply to any EBS carried out on the IMFS Premises (pursuant to a JTC direction, any of the IMFS Land Sale Approvals or otherwise) to determine the level of minerals, hydrocarbons, chemicals or other substances (including liquids, solids and gases) which are present in or on the IMFS Premises or in or on surface water, air, soil or ground water of the IMFS Premises (“
Environmental Contaminants
”):
(i) IMFS shall give a copy of any notification or other correspondence to and/or from JTC relating to an EBS to Micron Singapore and Intel Singapore within two Business Days after delivery or receipt of the same;
(ii) in the event an EBS is required as a condition for the grant of the IMFS Land Sale Approvals, IMFS shall timely appoint a JTC-approved environmental consultant acceptable to Micron Singapore and Intel Singapore to carry out the EBS at the cost and expense of Micron Singapore;
(iii) the scope of any EBS performed on the IMFS Premises shall comply with all requirements and conditions imposed by JTC including for the conduct of environmental baseline studies,
and/or such requirements that may be required by the Building Agreement;
(iv) IMFS will, in the course of preparing and finalising any EBS on the IMFS Premises for the purpose of submitting the same to JTC, provide Micron Singapore and Intel Singapore all drafts of such EBS upon IMFS’s receipt of the same from the environmental consultant, provide Micron Singapore and Intel Singapore an opportunity to comment on such EBS drafts prior to finalizing such drafts and submitting the same to JTC, consult with Micron Singapore and Intel Singapore on all phases of EBS activities, have due regard to Micron Singapore’s
and Intel Singapore’s concerns with respect to the EBS, and incorporate, whenever reasonable, Micron Singapore’s and Intel Singapore’s recommendations into the EBS to be submitted to JTC; and
(v) IMFS shall, concurrently with its submission of the EBS to JTC, forward a copy of its cover letter to JTC together with a copy of the EBS to Micron Singapore and Intel Singapore and shall forward to Micron Singapore and Intel Singapore copies of all correspondence to or from JTC regarding the EBS or any Decontamination Remedial Works (as defined below). IMFS shall further keep Micron Singapore and Intel Singapore apprised of all verbal communications with JTC regarding the EBS, any Decontamination Remedial Works and other related work.
(e) In the event that:
(i) the EBS discloses the existence of any Environmental Contaminants which exceed the applicable levels compelling environmental clean-up and/or remediation or preventive works or other measures with respect to such Environmental Contaminants (the “
Decontamination Works
”);
(ii) the Decontamination Works are required to be carried out at the recommendation of the environmental consultant who had issued the EBS; or
(iii) the terms of any of the IMFS Land Sale Approvals requires the Decontamination Works to be carried out,
Micron Singapore shall promptly carry out and complete the Decontamination Works and comply with all requirements of the Building Agreement and/or JTC arising from, or in connection with, the EBS and/or the Decontamination Works (collectively, the “
Decontamination Remedial Works
”), in compliance with the Building Agreement, and to the satisfaction of JTC and each relevant Governmental Entity, and Micron Singapore shall indemnify and keep IMFS and Intel Singapore fully indemnified against any and all costs and expenses arising out of or in connection with such carrying out and completion of the Decontamination Remedial Works.
5.5
Non-fulfillment of Conditions
.
(a) Micron Singapore may at any time waive in whole or in part and conditionally or unconditionally the conditions set out in
Section 5.1
by notice in writing to IMFS and Intel Singapore.
(b) IMFS may at any time waive in whole or in part and conditionally or unconditionally the conditions set out in
Section 5.2
by notice in writing to Micron Singapore and Intel Singapore.
(c) Intel Singapore may at any time waive in whole or in part and conditionally or unconditionally the conditions set out in
Section 5.3
by notice in writing to IMFS and Micron Singapore.
(d) The Party, if any, responsible for satisfaction of each condition in
Section 5.1
,
5.2
or
5.3
(as the case may be) shall give notice to the other Parties of satisfaction of the relevant conditions
within two Business Days of becoming aware of the same.
(e) If (i) the conditions in
Sections 5.1
,
5.2
and
5.3
are not satisfied or waived on or before the Cut-Off Date or (ii) any of the Parties terminates this Agreement pursuant to
Section 1.6(d)
, this Agreement (other than this
Section 5.5(e)
and
Section 7.15
) shall cease and determine and none of the Parties shall have any claim against the others under it. Micron Singapore shall at its own cost and expense withdraw any caveats and cancel any entries filed by Micron Singapore relating to the IMFS Premises with the Singapore Land Authority.
ARTICLE VI
COVENANTS
6.1
Operation in the Ordinary Course
.
(a) Commencing the Effective Date and ending as of the Closing Date, each Party agrees to use reasonable efforts consistent with past practice and policies to (i) preserve intact in all material respects the IMFS Business, (ii) maintain in all material respects the services of such Party’s employees who render full-time service to IMFS as seconded employees or who are otherwise an integral part of the services provided by such Party to IMFS, (iii) preserve in all material respects the relationships with suppliers, licensors, licensees, and others having material business relationships with IMFS and (iv) maintain the same cash management, asset write-off/write-down and accounting methods, policies, practices, principles, procedures, exceptions, classifications, assumptions, judgments and valuation and estimation methodologies that were used in the preparation of the audited financial statements of IMFS at September 1, 2011.
(b) From and after the Closing, employees of IM Flash Technologies, LLC (“
IMFT
”) and Intel Corporation (“
Intel
”) who are rendering services to IMFS as seconded personnel as of the Closing pursuant to an applicable Secondment Agreement, which employees are listed on
Schedule 6.1(b)
to the IMFS BSA Disclosure Letter, shall continue their services as follows (unless any such seconded employee is offered and accepts employment with Micron Singapore pursuant to
Section 1.12(e)
):
(i) With regard to employees of IMFT seconded to IMFS as of the Closing (“
IMFT Seconded Employees
”), the IMFT-IMFS Secondment Agreement shall be terminated effective as of the Closing, pursuant to the terms and conditions of that certain Master Termination Agreement, to be entered into and effective as of the Closing Date, by and among the Parties hereto, among others, and from and after
the Closing the IMFT Seconded Employees will provide services to Micron Singapore pursuant to that certain Amended and Restated IMFT Personnel Secondment Agreement dated as of the Closing Date, by and between Micron Technology, Inc., Intel and IMFT, as may be amended from time to time.
(ii) With regard to employees of Intel seconded to IMFS as of the Closing (“
Intel Seconded Employees
”), the Intel Secondment Agreement shall be terminated effective as of the Closing, pursuant to the terms and conditions of that certain Master Termination Agreement, to be entered into and effective as of the Closing Date, by and among the Parties hereto, among others, and from and after the Closing each Intel Seconded Employee will provide services to Micron Singapore pursuant to that certain Consulting Services Agreement, by and between Micron Singapore and Intel to be executed at the Closing pursuant to the terms and conditions of the 2012 Master Agreement.
6.2
Access to Information
.
(a) For and on behalf of itself, Intel Singapore and IMFS, Micron Singapore shall maintain for six years after the Closing Date all of the books and records in its possession pertaining to IMFS, the IMFS Fab Operations, the MSA Purchased Assets, the Assumed Liabilities and the Retained Liabilities before the Closing, including all books and records included in the MSA Purchased Assets.
(b) For six years after the Closing Date, each Party (the “
Possessing Party
”) will afford any other Party (the “
Receiving Party
”), its counsel and its accountants, during normal business hours, reasonable access to information relating to the IMFS Fab Operations, the MSA Purchased Assets, the Assumed Liabilities and the Retained Liabilities in the Possessing Party’s possession and, to the extent reasonably requested, will provide copies and extracts therefrom, all to the extent that such access may be reasonably required by the Receiving Party in connection with (i) the preparation of Tax returns, (ii) the preparation for any audit by any taxing authority or the prosecution or defense of any claim or proceeding relating to any Tax return, (iii) compliance with the requirements of any Governmental Entity or (iv) the resolution of claims made by a third party against or incurred by a Party pertaining to the IMFS Fab Operations, the MSA Purchased Assets and the Assumed Liabilities;
provided
,
however
, that nothing in this
Section 6.2(b)
shall be deemed to require any Party to disclose any information that it is prohibited from disclosing under any non-disclosure agreement entered into prior to the date of this Agreement or in the ordinary course of business after the date of this Agreement.
6.3
Traceability and Data Retention
.
(a) For two years after the Closing Date, Micron Singapore shall provide IMFS, Intel Singapore and their respective representatives with reasonable access, during normal business hours, without interruption to the IMFS Fab Operations and upon reasonable advance notice, and only after the implementation of reasonable, as determined in Micron Singapore’s sole discretion, safeguards, including execution of a confidentiality agreement and prior approval of the representatives, to the premises, property and books and records,
including production documents, of the IMFS Fab Operations to the extent necessary or appropriate in the reasonable discretion of IMFS or Intel Singapore, respectively, for the purposes of investigating, confirming or determining the extent or amount of any product liability, warranty, refund or similar claims and obligations which may arise with respect to Products manufactured at the IMFS Fab Operations prior to Closing.
(b) Micron Singapore agrees to maintain for a minimum of five years any data relating to the process traceability system of the IMFS Fab Operations in regards to defining unique lot and wafer number markings on each wafer throughout the manufacturing, assembly and testing process, including quality and testing information. Micron Singapore will endeavor to provide IMFS and Intel Singapore with full access to such data to the extent that Micron Singapore has such access, including providing access to such subcontractor data as reasonably requested by IMFS or Intel Singapore.
6.4
Cooperation.
Micron Singapore shall use its reasonable efforts to obtain the Third Party Consents and shall be responsible for filing such documents and taking such other actions as may be required. Each of IMFS and Intel Singapore shall, at Micron Singapore’s cost and expense, promptly co-operate with and provide all necessary information and assistance reasonably required by Micron Singapore and any Governmental Entity upon being requested to do so by the other in connection with the fulfillment of the conditions referred to in
Sections 5.1
,
5.2
and
5.3
. To the extent permitted by Applicable Law, and subject to all applicable privileges (including the attorney-client privilege), each of the Parties shall consult and cooperate reasonably with one another in connection with any filing, application, appearance, presentation, brief, argument or proposal made or submitted by or on behalf of any Party to JTC, any Competent Authority or any other Governmental Entity in connection with seeking or obtaining any approvals, filings, consents or authorizations required under or contemplated by
Section 5.1(b)
,
5.1(e)
,
5.2(b)
,
5.2(e)
,
5.3(b)
,
5.3(e)
or
5.4
. Each Party will notify the other Parties promptly upon the receipt of any response or comments from any officials of JTC, any Competent Authority or any other Governmental Entity in connection with any approvals, filings, applications, consents or authorizations required under or contemplated by
Section 5.1(b)
,
5.1(e)
,
5.2(b)
,
5.2(e)
,
5.3(b)
,
5.3(e)
or
5.4
.
6.5
IMFS’s General Obligations.
Except as otherwise expressly provided in this Agreement, if at any time after Closing, IMFS receives any insurance or other monies in respect of any IMFS Claim, then IMFS shall pay to Micron Singapore as soon as reasonably practicable the amount recovered.
6.6
IMFS’s Continuing Obligations.
Notwithstanding Closing, IMFS shall, at Micron Singapore’s expense:
(a) procure that if any property, rights or assets forming part of the IMFS Business (other than any Excluded Asset or a Contract, Permit or other asset to which
Section 1.11
applies) are not transferred by IMFS at Closing, IMFS transfers (at the expense of
****
) such property, rights or assets to Micron Singapore immediately after it is discovered that such property, rights or assets should have been transferred to Micron Singapore at Closing and the provisions of this Agreement, and in particular the warranties in
Article II
, shall be deemed to extend to such property, rights or assets as MSA Purchased Assets. If any such property, rights or assets are not included in the calculation of the consideration, the Parties
shall agree in writing the amount of consideration to be paid by Micron Singapore in respect of such property, rights or assets, failing which the Independent Accounting Firm shall determine the amount of such consideration;
(b) continue to give to Micron Singapore such information and assistance as Micron Singapore may reasonably require relating to the IMFS Business, its employees, customers and suppliers, its current contracts and engagements and its trade debtors and trade creditors and pass on any trade enquiry which IMFS receives;
(c) (without prejudice to the provisions of
Section 1.11
) from time to time execute and perform all such acts, deeds and documents and afford to Micron Singapore such assistance as Micron Singapore may reasonably require:
(i) for the purpose of vesting in Micron Singapore the full benefit of the IMFS Business and implementing all the provisions of this Agreement;
(ii) for the purpose of vesting in Micron Singapore or as it may direct the full benefit of any rights, powers, remedies, claims or defenses (including, without limitation, rights of set-off and counterclaim) that IMFS may have in relation to any IMFS Claim, or otherwise ensuring that the same enure for the benefit of Micron Singapore;
(iii) to enable any claim, action, suit, prosecution, litigation, proceedings, dispute or arbitration to which IMFS was a party and that relates to any IMFS Claim to be continued by or against Micron Singapore; and
(iv) to enable any judgment or award obtained by IMFS and not fully satisfied as at the Closing, to the extent to which it is an IMFS Claim enforceable by IMFS, to be enforced by Micron Singapore, whether by Micron Singapore joining itself as a defendant or by Micron Singapore consenting to any plaintiff concerned joining it as a defendant or otherwise.
6.7
Intel Singapore’s General Obligations
. Intel Singapore shall, at Micron Singapore’s expense and without prejudice to the provisions of
Section 1.11
, from time to time execute and perform all such acts, deeds and documents and afford to Micron Singapore such assistance as Micron Singapore may reasonably require:
(a) for the purpose of vesting in Micron Singapore the full benefit of the IMFS Business and implementing all the provisions of this Agreement;
(b) for the purpose of vesting in Micron Singapore or as it may direct the full benefit of any rights, powers, remedies, claims or defenses (including, without limitation, rights of set-off and counterclaim) that IMFS may have in relation to any IMFS Claim, or otherwise ensuring that the same enure for the benefit of Micron Singapore;
(c) to enable any claim, action, suit, prosecution, litigation, proceedings, dispute or arbitration to which IMFS was a party and that relates to any IMFS Claim to be continued by or against Micron Singapore; and
(d) to enable any judgment or award obtained by IMFS and not fully satisfied as at the Closing, to the extent to which it is an IMFS Claim enforceable by IMFS, to be enforced by Micron Singapore, whether by Micron Singapore joining itself as a defendant or by Micron Singapore consenting to any plaintiff concerned joining it as a defendant or otherwise.
6.8
****
.
(a) From and after the Closing, neither
****
nor
****
will have any interest in, or right or claim to any allocation of, share of or benefit from the
****
or
****
accruing or received after the Closing, including any monies received by
****
, relating to such
****
after the Closing (the “
Post-Closing Benefits
”).
(b)
****
will indemnify, defend and hold harmless
****
and
****
from and against any and all liabilities, damages, losses, costs and expenses (including Taxes, reasonable attorneys’ and consultants’ fees and expenses) arising from (i)
****
or
****
being required to repay or return any benefit of, or otherwise compensate any
****
with respect to, the
****
relating to such
****
with respect to the period prior to the Closing, (ii) the revocation by any
****
relating to any
****
, (iii)
****
or
****
being required to pay any amount to any
****
with respect to any of the Post-Closing Benefits and (iv) the transfer of the benefits or the burdens of the
****
relating to such
****
to
****
, and any actions taken to effect such transfer, pursuant to or in contemplation of the transactions in this Agreement, in any case including in the case of clauses (i) through (iv) (A) those that may result from any failure to satisfy any of the conditions of the
****
relating to such
****
that apply at any time prior to, from or after the Closing, (B) any amounts required to be paid or repaid to a
****
that would not have been required to be paid or repaid but for such failure, (C) any penalties, interest and additions to
****
relating thereto, (D) any reasonable professional fees incurred by
****
or
****
in connection with such failure and (E) any
****
resulting from the receipt or right to receive any payment pursuant to this sentence;
provided, however
, that in no event shall
****
or
****
be entitled to indemnification for the loss of the value to
****
or
****
attributable to the surrender of their rights to the Post-Closing Benefits described in clause (a) above.
ARTICLE VII
MISCELLANEOUS
7.1
Notices
. All notices, requests, demands or other communications that are required or may be given pursuant to the terms of this Agreement will be given pursuant to Section 8.3 of the 2012 Master Agreement.
7.2
Remedies
. Except as otherwise specifically provided for herein, from and after the Closing, the indemnification remedies set forth in Article 6 of the 2012 Master Agreement shall be the Parties’ sole and exclusive remedies for any breach under this Agreement.
7.3
Law Society of Singapore’s Conditions of Sale 1999
. The sale and purchase of the IMFS Premises is subject to the general conditions of sale known as “The Law Society of Singapore’s Conditions of Sale 1999” (the “
LSS Conditions
”) insofar as the LSS Conditions and the terms of this Agreement are not contrary to or in conflict with the following:
(a) the Conveyancing & Law of Property (Conveyancing) Rules 2011 as promulgated under the Conveyancing & Law of Property Act; and
(b) the Singapore Academy of Law (Conveyancing Money) Rules 2011 as promulgated under the Singapore Academy of Law Act (Cap 294A) (if applicable).
In the event of any inconsistency between the LSS Conditions and the provisions of this Agreement, the latter shall prevail.
7.4
Dispute Resolution
. Any controversy, dispute or Claim arising out of, in connection with, or in relation to the interpretation, performance, nonperformance, validity, termination or breach of this Agreement or otherwise arising out of, or in any way related to this Agreement or the transactions contemplated hereby will be governed by, and be subject to, the provisions of Section 8.9 of the 2012 Master Agreement, which provisions (and related defined terms) are hereby incorporated by reference into this Agreement;
provided, however
, that any references to “Agreement” in such Section 8.9 as incorporated herein shall be deemed to be references to this Agreement.
7.5
Jurisdiction and Venue; Waiver of Jury Trial.
(a) Any suit, action or proceeding seeking to enforce any provision of, or based on any matter arising out of or in connection with, this Agreement shall be brought in a state or federal court located in Delaware and each of the Parties to this Agreement hereby consents and submits to the exclusive jurisdiction of such courts (and of the appropriate appellate courts therefrom) in any such suit, action or proceeding and irrevocably waives, to the fullest extent permitted by Applicable Law, any objection which it may now or hereafter have to the laying of the venue of any such suit, action or proceeding in any such court or that any such suit, action or proceeding which is brought in any such court has been brought in an inconvenient forum. Process in any such suit, action or proceeding may be served on any party anywhere in the world, whether within or without the jurisdiction of any such court.
(b) Each Party hereby agrees to take such actions as may be reasonably requested by any other Party for the purpose of enforcing in Singapore any injunction or order for specific performance rendered by any state or federal court located in Delaware pursuant to
Section 7.5
.
(c) EACH PARTY ACKNOWLEDGES AND AGREES THAT ANY CONTROVERSY THAT MAY ARISE UNDER THIS AGREEMENT IS LIKELY TO INVOLVE COMPLICATED AND DIFFICULT ISSUES, AND THEREFORE EACH
SUCH PARTY HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT SUCH PARTY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY CERTIFIES AND ACKNOWLEDGES THAT (i) NO REPRESENTATIVE, AGENT OR ATTORNEY OF ANY OTHER PARTY HAS REPRESENTED, EXPRESSLY OR OTHERWISE, THAT SUCH OTHER PARTY WOULD NOT, IN THE EVENT OF LITIGATION, SEEK TO ENFORCE THE FOREGOING WAIVER, (ii) EACH SUCH PARTY UNDERSTANDS AND HAS CONSIDERED THE IMPLICATIONS OF THIS WAIVER, (iii) EACH SUCH PARTY MAKES THIS WAIVER VOLUNTARILY, AND (iv) EACH SUCH PARTY HAS BEEN INDUCED TO ENTER INTO THIS AGREEMENT BY, AMONG OTHER THINGS, THE WAIVERS AND CERTIFICATIONS IN THIS
SECTION 7.5
.
7.6
Headings.
The headings of the Articles and Sections in this Agreement are provided for convenience of reference only and shall not be deemed to constitute a part hereof.
7.7
Entire Agreement
. This Agreement, the documents to be executed hereunder and the Exhibits and Schedules attached hereto and the 2012 Master Agreement constitute the entire agreement between the Parties pertaining to the subject matter hereof and supersede all prior and contemporaneous agreements, understandings, negotiations and discussions, whether oral or written, of the Parties pertaining to the subject matter hereof.
7.8
Severability
. Should any provision of this Agreement be deemed in contradiction with the laws of any jurisdiction in which it is to be performed or unenforceable for any reason, such provision shall be deemed null and void, but this Agreement shall remain in full force in all other respects. Should any provision of this Agreement be or become ineffective because of changes in Applicable Laws or interpretations thereof, or should this Agreement fail to include a provision that is required as a matter of law, the validity of the other provisions of this Agreement shall not be affected thereby. If such circumstances arise, the Parties hereto shall negotiate in good faith appropriate modifications to this Agreement to reflect those changes that are required by Applicable Law.
7.9
Waiver
. Any Party may (a) extend the time for the performance of any of the obligations or other acts of any other Party or (b) waive compliance with any of the agreements of any other Party or with any conditions to its own obligations. Any agreement on the part of a Party hereto to any such extension or waiver will be valid if set forth in an instrument in writing signed on behalf of such Party.
7.10
Amendment
. This Agreement may not be amended except by an instrument in writing signed by each of the Parties. No supplement, alteration or modification of this Agreement will be binding unless executed in writing by the Parties.
7.11
Assignment
. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of each Party. Neither this Agreement nor any right or obligation hereunder may be assigned or delegated by any Party in whole or in part to any other Person, including by operation of law or in connection with any acquisition, merger, or change of control of a Party,
without the prior written consent of the non-assigning Parties.
7.12
Governing Law
. This Agreement shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without giving effect to the principles of conflict of laws thereof.
7.13
Third Party Rights
. A Person who is not a party to this Agreement has no right under the Contracts (Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term of this Agreement.
7.14
Counterparts
. This Agreement may be executed in several counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument.
7.15
Expenses
. Whether or not the transactions contemplated by this Agreement are ultimately consummated, each Party shall bear its own costs and expenses in connection with the negotiation, execution and delivery of this Agreement except as otherwise provided herein.
7.16
Further Assurances
. The Parties will deliver any and all other instruments or documents required to be delivered pursuant to, or reasonably necessary or proper in order to give effect to, the terms and provisions of this Agreement.
7.17
Disclaimers.
(a) Micron Singapore acknowledges that it has conducted such investigation and inspection of the assets, liabilities and books and records of IMFS that it has deemed necessary or appropriate for the purpose of entering into this Agreement and consummating the transactions contemplated by this Agreement. In executing this Agreement, Micron Singapore is relying on its own due care and diligence in electing to acquire the MSA Purchased Assets on the terms and subject to the conditions set forth in this Agreement and on the provisions set forth herein, and not on any other statements, presentations, representations, warranties or assurances of any kind made by IMFS, Intel Singapore, their respective representatives or any other Person.
(b) Micron Singapore acknowledges that (i) the representations and warranties of IMFS and Intel Singapore under
Article II
and
Article IV
, respectively, constitute the sole and exclusive representations and warranties of IMFS and Intel Singapore, as applicable, to Micron Singapore in connection with the transactions contemplated by this Agreement and (ii) all other representations and warranties are specifically disclaimed and may not be relied upon or serve as a basis for a claim against either IMFS or Intel Singapore, as applicable. MICRON SINGAPORE ACKNOWLEDGES THAT IMFS DISCLAIMS ALL WARRANTIES OTHER THAN THOSE EXPRESSLY CONTAINED IN THIS AGREEMENT AS TO THE MSA PURCHASED ASSETS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY WARRANTY OF MERCHANTABILITY OR WARRANTY FOR FITNESS FOR A PARTICULAR PURPOSE. EXCEPT FOR THOSE REPRESENTATIONS AND WARRANTIES MADE BY IMFS EXPRESSLY CONTAINED IN THIS AGREEMENT, MICRON SINGAPORE IS ACQUIRING THE MSA PURCHASED ASSETS ON AN “AS IS, WHERE IS” BASIS. MICRON
SINGAPORE FURTHER ACKNOWLEDGES THAT INTEL SINGAPORE DISCLAIMS ALL WARRANTIES OTHER THAN THOSE MADE BY IT EXPRESSLY CONTAINED IN THIS AGREEMENT. NEITHER IMFS NOR INTEL MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, ORAL OR WRITTEN, WHETHER OF MERCHANTABILITY, SUITABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE, OR QUALITY AS TO THE MSA PURCHASED ASSETS OR ANY PART OR ITEM THEREOF, OR AS TO THE CONDITION, DESIGN, OBSOLESCENCE, WORKING ORDER OR WORKMANSHIP THEREOF, OR THE ABSENCE OF ANY DEFECTS THEREIN, WHETHER LATENT OR OTHERWISE.
(c) IMFS acknowledges that (i) the representations and warranties of Micron Singapore and Intel Singapore under
Article III
and
Article IV
, respectively, constitute the sole and exclusive representations and warranties of Micron Singapore and Intel Singapore, as applicable, to IMFS in connection with transactions contemplated by this Agreement and (ii) all other representations and warranties are specifically disclaimed and may not be relied upon or serve as a basis for a claim against either Micron Singapore or Intel Singapore, as applicable. IMFS ACKNOWLEDGES THAT MICRON SINGAPORE AND INTEL SINGAPORE EACH DISCLAIM ALL WARRANTIES OTHER THAN THOSE MADE BY IT EXPRESSLY CONTAINED IN THIS AGREEMENT.
(d) Intel Singapore acknowledges that (i) the representations and warranties of IMFS and Micron Singapore under
Article II
and
Article III
, respectively, constitute the sole and exclusive representations and warranties of IMFS and Micron Singapore, as applicable, to Intel Singapore in connection with transactions contemplated by this Agreement and (ii) all other representations and warranties are specifically disclaimed and may not be relied upon or serve as a basis for a claim against either IMFS or Micron Singapore, as applicable. INTEL SINGAPORE ACKNOWLEDGES THAT IMFS AND MICRON SINGAPORE EACH DISCLAIM ALL WARRANTIES OTHER THAN THOSE MADE BY IT EXPRESSLY CONTAINED IN THIS AGREEMENT.
7.18
Certain Interpretive Matters
.
(a) Unless the context requires otherwise, (i) all references to Sections, Articles or the Appendix are to Sections, Articles or the Appendix of or to this Agreement, (ii) words in the singular include the plural and vice versa, (iii) the term “including” means “including without limitation,” and (iv) the terms “herein,” “hereof,” “hereunder” and words of similar import shall mean references to this Agreement as a whole and not to any individual section or portion hereof. Unless otherwise specified herein, all amounts and payments shall be in United States dollars, and all references to “$” or dollar amounts will be to lawful currency of the United States of America. All references to “$” or dollar amounts shall be to precise amounts and not rounded up or down. All references to “day” or “days” will mean calendar days.
(b) No provision of this Agreement will be interpreted in favor of, or against, any of the Parties by reason of the extent to which any such party or its counsel participated in the drafting thereof or by reason of the extent to which any such provision is inconsistent with any prior draft of this Agreement or such provision.
ARTICLE VIII
DEFINITIONS
8.1
Definitions
. Unless otherwise defined in this Agreement, the following terms have the meanings specified or referred to in this
Article VIII
:
“
Agreed Terms
” means in relation to any document, such document in the terms agreed between the Parties and signed for identification by IMFS and Micron Singapore with such alterations as may be agreed in writing between the Parties from time to time for any reason (including to take account of any changes between the date of this Agreement and the Closing).
“
Antitrust Law
” means any of the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, the Sherman Antitrust Act of 1890, as amended, the Clayton Act of 1914, as amended, the Federal Trade Commission Act, as amended, the Competition Act, Chapter 50B of Singapore, as amended, or any other federal, state or foreign law designed to prohibit, restrict or regulate actions for the purpose of monopolization or restraint of trade.
“
Applicable Law
” means any laws, statutes, rules, regulations, ordinances, orders, codes, arbitration awards, judgments, decrees or other legal requirements of any Governmental Entity.
“
Appointed Valuer
” means
****
, being the property valuer appointed by IMFS to value the IMFS Premises and whose expenses shall be paid by Micron Singapore.
“
Back-End Products
” means shall have the meaning set forth in the IMFS Back-End Products Purchase Agreement.
“
Building Agreement
” means the building agreement dated November 23, 2007 made between JTC and IMFS (including all side-letters supplemental thereto) whereby JTC agreed to grant, and IMFS agreed to take, a license in respect of the IMFS Land for a term of four years commencing from March 30, 2007, and subject to the fulfillment of certain conditions specified in clause 3.1 of the Building Agreement, JTC agreed to grant, and IMFS agreed to accept, a lease of the IMFS Premises.
“
Business Day
” means a day that is a not a Saturday, Sunday or other day on which the banking institutions in the State of New York and Singapore are authorized or required by Applicable Law to be closed.
“
Competent Authorities
” means those Governmental Entities whose approval/clearance is required by JTC as a condition to the grant of the JTC Approval, and “
Competent Authority
” means any of them.
“
Closing
” shall have the meaning set forth in the 2012 Master Agreement.
“
Contracts
” means (i) the contracts and agreements referred to in
Schedule 8.1A
to the IMFS BSA Disclosure Letter; and (ii) all other contracts, undertakings, arrangements and agreements entered into on or prior to the Closing by or on behalf of IMFS in connection with the IMFS Business in each case to the extent that at the Closing the same remain to be completed or performed or remain in force, including the Secondment Agreements but excluding employment and other agreements with the Relevant Employees.
“
Cut-off
Date
” means
****
.
“
Employment Act
” means the Employment Act, Chapter 91 of Singapore.
“
Employee Liabilities
” means any and all Liabilities, whenever or however arising, including all benefits payable to a Relevant Employee and all costs and expenses relating thereto arising under Applicable Law, contract, decision or proceeding before any Governmental Entity or any award of any arbitrator of any kind, relating to any employee plan, employment arrangement or otherwise relating to a Relevant Employee and his or her service or employment with IMFS, and all losses incurred as a result of claims, actions or proceedings brought by any Relevant Employee against IMFS, Micron Singapore or Intel Singapore in connection with the termination of such Relevant Employee’s employment with IMFS or as a result of the transactions contemplated in this Agreement.
****
“
Governmental Entity
” means any governmental authority or entity, including any agency, board, bureau, commission, court, municipality, department, subdivision or instrumentality thereof, or any arbitrator or arbitration panel.
“
****
” means all the
****
in connection with the
****
and more particularly set out in
****.
“
Guarantees and Warranties
” means all builders’ and suppliers’ guarantees, undertakings and warranties furnished to IMFS or its predecessor-in-title or its agents relating to the IMFS Premises, including, without limitation, those that are listed in
Schedule
8.1C
to the IMFS BSA Disclosure Letter.
“
IMFS Back-End Products Purchase Agreement
” means that certain IMFS Back-End Products Purchase Agreement by and among the Parties that shall be entered into at the Closing, in substantially the form attached as Exhibit HH to the 2012 Master Agreement Exhibit Letter.
“
IMFS BSA Disclosure Letter
” means the disclosure letter, as agreed to between the Parties as of the date hereof, containing the Schedules required by the provisions of this Agreement.
“
IMFS BSA Exhibit Letter
” means the exhibit letter, as agreed to between the Parties as of the date hereof, containing the Exhibits required by the provisions of this Agreement.
“
IMFS Business
” means the IMFS Fab Operations carried on by IMFS at the IMFS Premises.
“
IMFS Claims
” means all rights and claims of IMFS arising at any time (whether before or after the Closing) out of or in connection with the IMFS Business (whether arising under any warranties, conditions, guarantees, indemnities, insurance policies, contracts, agreements (in each case whether express or implied) or otherwise howsoever) insofar as they relate to any of the MSA Purchased Assets;
provided
,
however
, that “
IMFS Claims
” shall not include any rights or claims against Intel Singapore or any of its past and present stockholders, partners, directors, officers, employees, agents and other representatives (each of which are released under Section 2.8(D)(2) of the 2012 Master Agreement).
“
IMFS Land
” means the land known as Private Lot A2352802 as more particularly shown on the plan attached to the Building Agreement (and now comprised in Lot 5539C of Mukim 13), Singapore.
“
IMFS Land Sale Approvals
” means, collectively, the JTC Approval and, where required by JTC, the approval or clearance of the Competent Authorities in connection with the sale of the IMFS Premises by IMFS to Micron Singapore and the assignment/transfer of the Building Agreement, the JTC Lease and all side-letters supplemental thereto by IMFS to Micron Singapore, as applicable. In the event the approval or clearance of the Competent Authorities is not required by JTC, the term “
IMFS Land Sale Approvals
” shall mean and refer to the JTC Approval only.
“
IMFS Net Book Value
” means (i) the book value of the MSA Purchased Assets as of the close of business on the Closing Date, net of accumulated depreciation, amortization and other adjustments less (ii) the book value of the Assumed Liabilities, in each case as determined in accordance with Modified GAAP consistently applied and using the same accounting methods, policies, practices, principles, procedures, exceptions, classifications, assumptions, judgments and valuation and estimation methodologies that were used in the preparation of the audited financial statements of IMFS at September 1, 2011. For the avoidance of doubt, the IMFS Net Book Value shall be determined without giving effect to the transactions contemplated by this Agreement and without any write-off or write-down resulting from the transactions contemplated by this Agreement or IMFS’s determination to dispose of the MSA Purchased Assets or to discontinue the IMFS Fab Operations.
“
IMFS Premises
” means, collectively, the IMFS Land together with the buildings erected thereon and improvements thereto (including all fixed and non-severable plant and machinery).
“
IMFT-IMFS Secondment Agreement
” means that certain IM Flash Personnel Secondment Agreement dated as of February 27, 2007, by and between IM Flash Technologies, LLC and IMFS.
“
Independent Accounting Firm
” means PricewaterhouseCoopers LLP (and its affiliated accounting firms), or, if such firm is unable or unwilling to act, such other independent public accounting firm as shall be agreed in writing by the Parties.
“
Intel
Secondment Agreement
” means that certain Intel Personnel Secondment Agreement dated as of February 27, 2007, by and between Intel and IMFS.
“
Intel Singapore Supply Agreement
” means that certain Supply Agreement dated as of February 27, 2007, by and between Intel Singapore and IMFS.
“
Joint Venture Documents
” shall have the meaning set forth in the 2012 Master Agreement.
“
JTC
” means the Jurong Town Corporation.
“
JTC Approval
” means JTC’s approval to the sale of the IMFS Premises by IMFS to Micron Singapore and the assignment/transfer of the Building Agreement, the JTC Lease and all side-letters supplemental thereto by IMFS to Micron Singapore.
“
JTC Lease
” means the lease of the IMFS Premises issued, or to be issued, by JTC to IMFS pursuant to the provisions of the Building Agreement (as amended or supplemented in writing from time to time) and includes any document which amends or supplements such lease.
“
Liability
” means, with respect to any Person, any liability or obligation of such Person of any kind, character or description, whether known or unknown, absolute or contingent, asserted or unasserted, accrued or unaccrued, liquidated or unliquidated, secured or unsecured, joint or several, due or to become due, vested or unvested, executory, determined, determinable or otherwise and whether or not the same is required to be accrued on the financial statements of such Person.
“
Lien
” means any charge, Claim, mortgage, lien, option, pledge, security interest or other restriction of any kind (other than those created under applicable securities laws).
“
Material Adverse Effect
” means (i) a material adverse effect on the business, results of operations or financial condition of a Party and its subsidiaries, taken as a whole, or (ii) any change or effect that prevents or materially impedes or delays the consummation of the transactions contemplated by this Agreement and the Joint Venture Documents and the other transactions contemplated hereby and thereby, all taken as a whole;
provided
, that changes and effects attributable to changes in Applicable Law of general applicability or interpretations thereof by courts or Governmental Entities shall not be deemed, either alone or in combination, to constitute, and shall not be taken into account in determining whether there has been or will be, a Material Adverse Effect.
“
Modified GAAP
” means United States generally accepted accounting principles as in effect from time to time, except that: (i) stock-related expenses (including stock options, restricted stock, stock appreciation rights, restricted stock units, stock purchase programs or any award based on equity of Intel Singapore or Micron Singapore) associated with the seconded individuals to IMFS will not be recorded or disclosed in the financial statements of IMFS; and (ii) the value of any asset, contributed or otherwise transferred to IMFS from Intel Singapore or Micron Singapore shall be the value as agreed upon by Intel Singapore and Micron Singapore at the time of the contribution or transfer, as applicable, and, if such asset is or was to be depreciated or amortized under GAAP, the useful life and method of depreciation or amortization for such asset shall be determined by applying the accounting policies used by IMFS for like assets.
“
Motor Vehicles
”
means all the motor vehicles owned by IMFS used or intended to be used in connection with the IMFS Business at the Closing.
“
MSA Inventory
” means raw materials, work in process, finished goods (but excluding all Back-End Products), supplies, packaging materials, parts, spare parts and other inventories owned by IMFS.
“
MSA Supply Agreement
” means that certain Supply Agreement dated as of February 27, 2007, by and between Micron Singapore and IMFS.
“
Office Equipment
” means all loose items of office equipment, furniture and furnishings but excluding fixed equipment forming part of the IMFS Premises, used or intended to be used in connection with the IMFS Business, at the
Closing.
“
Order
” means any preliminary or permanent injunction, temporary restraining order or other judicial or administrative order or decree of any Governmental Entity.
“
Permits
” means the governmental or regulatory permits, licenses and/or consents set out in
Schedule 8.1D
to the IMFS BSA Disclosure Letter.
“
Person
” or “
Persons
” means any natural person and any corporation, firm, partnership, trust, estate, limited liability company or other entity resulting from any form of association.
“
Plant and Machinery
” means loose plant and machinery, tools, moulds, dies and other equipment (excluding the Office Equipment and fixed and non-severable plant and machinery forming part of the IMFS Premises) owned by IMFS, used or intended to be used in connection with the IMFS Business, at the Closing.
“
Post-Closing Adjustment
” means the amount calculated as the IMFS Net Book Value minus the estimated IMFS Net Book Value as set forth in the statement delivered by Intel Singapore pursuant to
Section 1.7
.
“
Probe Testing
” shall have the meaning set forth in the Intel Singapore Supply Agreement.
“
Products
” shall have the meaning set forth in the Intel Singapore Supply Agreement.
“
Receivables
” means the book and other debts receivable by or owing to IMFS in connection with the IMFS Business (and whether or not yet due and payable) at the Closing
(including, without limitation, trade debts, deposits, prepayments, retrospective rebates and overpayments) and interest thereon but excluding:
(a) debts due from any relevant Tax Authority in respect of Taxation including, for the avoidance of doubt, any bond or other security issued by any Tax Authority or other governmental agency representing any such debts; and
(b) cash credited to any account with a bank.
“
Relevant Employees
” means those employees of IMFS who are immediately prior to Closing employed in the IMFS Business.
“
Secondary Silicon
” shall have the meaning set forth in the Intel Singapore Supply Agreement.
“
Secondment Agreements
” means, collectively, the IMFT-IMFS Secondment Agreement and the Intel Secondment Agreement.
“
****
” means
****
.
“
Taxes
,” “
Taxation
” or “
Tax
” means any federal, state, local or foreign net income, gross income, gross receipts, sales, use, ad valorem, transfer, franchise, profits, service, service use, withholding, payroll, employment, excise, severance, goods and services, stamp, occupation, premium, property, customs, duties or other type of fiscal levy and all other taxes, governmental fees, registration fees, assessments or charges of any kind whatsoever, together with any interest and penalties, additions to tax or additional amounts imposed or assessed with respect thereto.
“
Tax Authority
” means any taxing or other authority competent to impose any liability in respect of Taxation or responsible for the administration and/or collection of Taxation or enforcement of any law in relation to Taxation.
“
Third Party Consents
” means all consents, licenses, approvals, authorizations or waivers required from third parties for the conveyance, transfer, assignment or novation in favor of Micron Singapore of any of the MSA Purchased Assets
on terms acceptable to Micron Singapore and “
Third Party Consent
” means any one of them.
[Signature Page Follows]
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.
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INTEL TECHNOLOGY ASIA PTE LTD
By:
/s/ Brian Krzanich
Brian Krzanich
Authorized Signer
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MICRON SEMICONDUCTOR ASIA PTE. LTD.
By:
/s/ Brian J. Shields
Brian J. Shields
Senior Managing Director and Chairman
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IM FLASH SINGAPORE, LLP
By:
/s/ Rodney Morgan
Rodney Morgan
Authorized Person
By:
/s/ Keyvan Esfarjani
Keyvan Esfarjani
Authorized Person
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THIS IS THE SIGNATURE PAGE FOR THE
IMFS BUSINESS SALE AGREEMENT
ENTERED INTO BY AND AMONG INTEL TECHNOLOGY ASIA PTE LTD,
MICRON SEMICONDUCTOR ASIA PTE. LTD.
AND IM FLASH SINGAPORE, LLP