EXHIBIT 4.28
AMENDMENT AGREEMENT (NO. 1) TO JOINT VENTURE AGREEMENT ORIGINALLY DATED
13TH MARCH 1997 AND AMENDED AND RESTATED AS OF 23RD OCTOBER, 2001
THIS AMENDMENT AGREEMENT (NO. 1) is made as of 31st January 2002
BETWEEN:-
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD ("CSM"), a company
incorporated in Singapore with its registered office at
00, Xxxxxxxxx Xxxxxxxxxx Xxxx X Xxxxxx 0, Xxxxxxxxx 000000;
(2) AGILENT TECHNOLOGIES EUROPE B.V. ("Agilent"), a company
incorporated in The Netherlands with its principal place of business
at Xxxxxxxxx 00, 0000 XX Xxxxxxxxxx, Xxx Xxxxxxxxxxx;
(3) EDB INVESTMENTS PTE LTD ("EDBI"), a company incorporated in Singapore
with its registered office at 000, Xxxxx Xxxxxx Xxxx, #00-00,
Xxxxxxx Xxxx Xxxxx, Xxxxxxxxx 000000; and
(4) SINGAPEX INVESTMENTS PTE LTD ("SIPL") a company incorporated in
Singapore with its registered office at 00 Xxxxxxx Xxxx #00-00 XxxxXxx
Xxxxxx, Xxxxxxxxx 000000.
CSM, Agilent, EDBI and SIPL are collectively referred to herein as
"Parties" and individually referred to herein as a "Party".
WHEREAS:-
(A) The Parties have entered into a Joint Venture Agreement originally
dated 13 March 1997 and amended and restated as of 23rd October, 2001
(the "Joint Venture Agreement") for the purpose of regulating their
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relationship inter se as shareholders in the joint venture company
called Chartered Silicon Partners Pte Ltd.
(B) The Parties are entering into this Amendment Agreement (No. 1) to vary
the Joint Venture Agreement with effect from the date hereof.
IT IS AGREED as follows:-
1. INTERPRETATION
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All terms and references used in the Joint Venture Agreement and which
are defined or construed in the Joint Venture Agreement but are not
defined or construed in this Amendment Agreement (No. 1) shall have the
same meaning and construction in this Amendment Agreement (No. 1).
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2. AMENDMENT TO THE JOINT VENTURE AGREEMENT
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The Parties agree that with effect from the date of this Amendment
Agreement (No. 1), the following clauses of the Joint Venture Agreement
shall be amended by deleting the words as evidenced by square brackets
and by adding the words as evidenced by uppercase text:-
Clause 5(B) Composition
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5(B)(iiii) Agilent and its Permitted Transferees shall collectively be
entitled to appoint as Director(s) two persons for so long as Agilent
and its Permitted Transferees' aggregate Shareholding Percentage is
equal to or exceeds 15 per cent., and one person for so long as
Agilent and its Permitted Transferees' aggregate Shareholding
Percentage is equal to or exceeds five per cent. In the event that
Agilent and its Permitted Transferees' aggregate Shareholding
Percentage is less than five per cent., CSM and Agilent shall upon the
written request of Agilent, enter into discussions in respect of
(1) the Agilent Percentage Commitment and the Company Percentage
Commitment (as defined in the Assured Supply and Demand Agreement), and
(2) Agilent's right to continue to appoint one person as a Director.
THE SHAREHOLDERS AGREE THAT EACH OF THE AGILENT DIRECTORS SHALL NOT BE
ENTITLED TO VOTE AT ANY MEETINGS OR ON ANY MANAGEMENT DECISIONS OR TO
APPROVE OR SIGN ANY RESOLUTIONS IN WRITING BUT SHALL BE ENTITLED TO
RECEIVE ALL NOTICES, AGENDA AND MINUTES OF MEETINGS, RESOLUTIONS IN
WRITING CIRCULATED OR PASSED, TO ATTEND ALL MEETINGS, TO MAKE
RECOMMENDATIONS AND GIVE ITS VIEWS AT MEETINGS OR ON CIRCULATED
DOCUMENTS AND TO HAVE THE SAME NOTED BY THE BOARD AND RECORDED IN THE
MINUTES OF MEETINGS OR RECORDS OF THE COMPANY. AGILENT MAY WITH THE
PRIOR WRITTEN CONSENT OF THE SHAREHOLDERS (SUCH CONSENT NOT TO BE
UNREASONABLY WITHHELD) AMEND THE VOTING RIGHTS OF THE AGILENT DIRECTORS
GRANTED UNDER THIS AGREEMENT.
Clause 5(H) Meeting of Directors
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(i) Meetings of the Board shall be held at such times as the
Board shall determine. Unless otherwise agreed by the Shareholders, a
meeting of the Board shall be held at least once every six months.
(ii) The quorum at a meeting of Directors necessary for the
transaction of any business of the Company shall be [three] TWO
Directors, [including] COMPRISING at least one CSM Director [, at
least one Agilent Director] and the EDBI Director. Not less than
30 days' notice (or such shorter period of notice in respect of any
particular meeting as may be agreed by all Directors) specifying the
date, place and time of the meeting and the business to be transacted
thereat shall be given to all Directors.
(iii) In the event that a meeting of Directors duly convened
cannot be held for lack of a quorum, the meeting shall be adjourned to
the same time and day of the following week and at the same place or
such other agreed upon date (within 30 days of the adjourned meeting
date), place and time, and notice specifying the date, place and time
of such adjourned meeting shall
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be given to all Directors. In the event that a meeting of Directors is
adjourned twice for lack of a quorum because of the absence of a
Director appointed by the same Shareholder at each of such inquorate
meetings, the quorum for the third adjourned meeting shall be two
Directors [comprising one Director] appointed by [each of] the other
[two] Shareholder[s].
(iv) The Directors may participate in a meeting of the Directors
by means of a conference telephone or a video conference telephone or
similar communications equipment by which all persons participating in
the meeting are able to hear and be heard by all other participants
without the need for a Director to be in the physical presence of
another Director(s) and participation in the meeting in this manner
shall be deemed to constitute presence in person at such meeting. The
Directors participating in any such meeting shall be counted in the
quorum for such meeting and subject to there being a requisite quorum
under paragraphs (ii) or (iii) above (as the case may be) at all times
during such meeting, all resolutions agreed by the Directors in such
meeting shall be deemed to be as effective as a resolution passed at a
meeting in person of the Directors duly convened and held. A meeting
conducted by means of a conference telephone or a video conference
telephone or similar communications equipment as aforesaid is deemed
to be held at the place agreed upon by the Directors attending the
meeting, provided that at least one of the Directors present at the
meeting was at that place for the duration of the meeting.
(v) In the case of a meeting which is not held in person, the
fact that a Director is taking part in the meeting must be made known
to all the other Directors taking part, and no Director may
intentionally disconnect or cease to take part in the meeting unless
he makes known to all other Directors taking part that he is ceasing
to take part in the meeting.
(vi) Save as provided in SUB-CLAUSE (B)(III) ABOVE AND
sub-Clause (I) below, all resolutions of the Directors at a meeting or
adjourned meeting of the Directors shall be adopted by a simple
majority vote of the Directors present. Save as provided in
sub-Clause (G) above, each Director (SAVE FOR AGILENT DIRECTORS WHO
ARE NOT ENTITLED TO VOTE) shall have one vote.
(vii) All resolutions to be passed by way of circulation among
the Directors (referred to as a "resolution in writing") shall be
dispatched to each Director contemporaneously. A resolution in writing
of the Directors shall be as valid and effectual as if it had been a
resolution passed at a meeting of the Board duly convened and held if
the resolution in writing is approved and signed by at least one CSM
Director, [at least one Agilent Director,] the EDBI Director and the
SIPL Director and may consist of several documents in the like form
each signed by one or more of the Directors (OTHER THAN THE AGILENT
DIRECTORS WHO ARE NOT ENTITLED TO SIGN SUCH RESOLUTIONS). The Company
Secretary shall notify all the Directors in writing of the effective
date on which such resolution is passed.
(viii) None of the following actions shall be taken by the Company
unless approved by a simple majority vote of the duly represented
Directors WHO ARE ENTITLED TO VOTE at a duly convened meeting:-
(a) the incurring by the Company of any capital
expenditure in excess of S$10,000,000 unless
included in an approved Company Business Plan;
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(b) the exercise of the Company's borrowing powers in
relation to incremental loans carrying a loan tenure
exceeding one year (other than those included in an
approved Company Business Plan), or financing from new
financial institutions;
(c) the approval of any proposed annual Company Business
Plan of the Company (other than the first Company
Business Plan), provided however that in the event
that the Company Business Plan has not been approved
prior to the commencement of the new financial year
of the Company, until a new Company Business Plan is
so approved, the Company shall be operated in
accordance with the Company Business Plan most
recently approved by the Board; and
(d) any sale, lease, transfer or other disposition of
the properties or assets of the Company other than in
the ordinary course of business of the Company.
Clause 5(I) Important Matters Requiring Board's Special Approval
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(i) Subject to any requirements specified by law or by the Act,
none of the following actions shall be taken by the Company unless with
the affirmative votes of not less than three-quarters of the duly
represented Directors WHO ARE ENTITLED TO VOTE at a duly convened
meeting:-
(a) the approval of any proposed annual Company
Business Plan or interim revision of the Company
Business Plan of the Company (other than the first
Company Business Plan), if it impacts the Company's
ability to service Agilent's wafer requirements under
the Assured Supply and Demand Agreement provided
however that in the event that the annual Company
Business Plan has not been approved prior to the
commencement of the new financial year of the Company,
until a new Company Business Plan is so approved, the
Company shall be operated in accordance with the
Company Business Plan or interim revision of the
Company Business Plan most recently approved by the
Board;
(b) the lease of any real estate for an amount in
excess of S$5,000,000 unless included in an
approved Company Business Plan, or the purchase of any
real estate;
(c) the entry of the Company into new markets outside of
the Business, as defined under Clause 6(A);
(d) any sale, lease, transfer, or other disposition of
the properties or assets of the Company in excess of
20% of the fair market value of total assets at the
time of sale, lease, transfer or other disposition, as
the case may be, other than in the ordinary course of
business of the Company;
(e) the approval of, or change in, the method of computing
the fee payable under the Cost Sharing Agreement or
the STPL Group Management and Support Services
Agreement unless contemplated in an approved Company
Business
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Plan;
(f) the termination of research and development services
provided by CSM pursuant to the Cost Sharing
Agreement, or change in the Fab Equalization policy
specified in the Cost Sharing Agreement;
(g) the exercise of any of the Company's borrowing powers
in excess of 20% of the fair market value of total
assets at the time of borrowing;
(h) the entry into any major alliance unless contemplated
in an approved Company Business Plan. For the
purposes of this sub-paragraph (h) the expression
"Major Alliance" means any major transaction entered
into by the Company other than in the ordinary course
of business (1) pursuant to which the Company acquires
or disposes of intellectual property or other
technology rights, (2) pursuant to which the Company
is restricted as a result of such transaction in the
products or services which it may provide to its
customers, including Agilent, or (3) which creates or
grants exclusive rights to another party or parties;
(i) the issue by the Company of any guarantee to secure
the indebtedness of any person;
(j) the incurring by the Company of any capital
expenditure in excess of 20% of the fair market value
of total assets at the time of expenditure;
(k) a change in the Debt/Equity Ratio policy specified in
Clause 11(B); and
(l) the approval of any proposed interim revision to the
annual Company Business Plan which is required in the
event (1) there is a negative deviation of actual net
income results for a quarter from the existing plan
for that quarter which annualized, exceeds 10% of the
paid-up share capital of the Company or (2) there is
a negative deterioration of forecasted net income for
the year from the existing annual Company Business
Plan for that year which exceeds 10% of the paid-up
share capital of the Company.
(ii) Subject to any requirements specified by law or by the Act,
none of the following actions shall be taken by the Company unless
with the affirmative votes of each of the CSM Directors, [the Agilent
Directors,] the EDBI Director and the SIPL Director duly represented
at a duly convened meeting:-
(a) the change in the authorised, issued or paid-up
capital of the Company or the grant of any option
over the unissued share capital of the Company;
(b) the listing of the shares in the capital of the
Company on any stock exchange;
(c) the winding-up, liquidation or dissolution of the
Company or the merger, consolidation or reorganisation
of the Company with any corporation, firm or
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other body;
(d) any transfer of shares held by a Shareholder in the
capital of the Company unless in accordance with
Clause 10, Clause 14(B), Clause 14(D) or the Option
Agreement, the SIPL Call Option Agreement or the EDBI
Call Option Agreement;
(e) the subscription for, or acquisition or disposal of,
any shares or interests in any corporation;
(f) the entry into any joint venture; and
(g) the declaration by the Company of dividends for any
financial year in excess of the lower of:-
(1) 70 per cent. of the profit after tax of the
Company for that financial year; and
(2) 50 per cent. of the retained earnings of the
Company.
Clause 8(B) Management Committee
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The Company shall establish a Management Committee based in
Singapore comprising [three] TWO members with one nominee of CSM [, one
nominee of Agilent] and the General Manager (the "Management
Committee"). The Management Committee shall review decisions on the
allocation of loadings made by the CSM central planning organization
carried out between the CSM Fabs and the Company Fab, the timing of
technology introductions and the recommendations made by the Technology
Committee to meet Company business objectives and to meet current and
future customer commitments and required qualifications. The Management
Committee will also review and make recommendations to the General
Manager, as appropriate, on pricing structure, capacity and mix of
processes and other operational issues relating to the Company. The
Management Committee will also provide advice to the General Manager in
connection with the preparation of the Company Business Plan.
3. SAVINGS AND INCORPORATION
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(A) Save as expressly amended by this Agreement (No. 1), the terms and
conditions of the Joint Venture Agreement shall continue to be in full
force and effect in all other respects.
(B) The Joint Venture Agreement and the Amendment Agreement (No. 1) shall
be construed as one document and this Amendment Agreement (No. 1) shall
be deemed to be part of the Joint Venture Agreement. Where the context
so permits, references in the Joint Venture Agreement and in this
Amendment Agreement (No. 1) to "Joint Venture Agreement" or "this
Agreement" shall be read and construed as references to the Joint
Venture Agreement as amended and supplemented by this Amendment
Agreement (No. 1).
4. COUNTERPARTS
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This Amendment Agreement (No. 1) may be executed in any number of
counterparts and by the parties to it on separate counterparts, each
of which shall be an original, but all of which
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together shall constitute one and the same instrument.
5. GOVERNING LAW
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This Amendment Agreement (No. 1) shall be governed by, and construed
in accordance with, the laws of Singapore.
IN WITNESS WHEREOF the parties have entered into this Amendment Agreement
(No. 1) as of the date stated above.
SIGNED BY XXXXX XXXXX )
)
for and on behalf of )
CHARTERED SEMICONDUCTOR MANUFACTURING LTD )
in the presence of: )/s/ Xxxxx Xxxxx
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/s/ Xxxxxxx Xxxx
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Name: XXXXXXX XXXX
SIGNED BY PHOON XXX XXXX )
)
for and on behalf of )
AGILENT TECHNOLOGIES EUROPE B.V. )
in the presence of: )/s/ Phoon Xxx Xxxx
----------------------------------
pursuant to a Power of Attorney
/s/ Xxxx Xxxxx Xxx dated 29th January 2002
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Name: XXXX XXXXX XXX
SIGNED BY: LIOW VOON KHEONG )
)
for and on behalf of )
EDB INVESTMENTS PTE LTD )
in the presence of: )/s/ Liow Voon Keong
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/s/ Xxxxxx Xx
-----------------------
Name: XXXXXX XX
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SIGNED BY XXXXXX XXXXXX )
)
for and on behalf of )
SINGAPEX INVESTMENTS PTE LTD )
in the presence of: ) /s/ Xxxxxx Xxxxxx
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/s/ Xxxx Xxxx
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Name: XXXX XXXX
ACKNOWLEDGED AND AGREED TO )
by XXX XXXXXX )
)
for and on behalf of )
CHARTERED SILICON PARTNERS PTE LTD )
Date:- )
In the presence of:- ) /s/ Xxx Xxxxxx
----------------------------------
/s/ Xxxxxxx Xxxx
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Name: XXXXXXX XXXX
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Dated as of 31st January, 2002
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
- and -
AGILENT TECHNOLOGIES EUROPE B.V.
- and -
EDB INVESTMENTS PTE LTD
- and -
SINGAPEX INVESTMENTS PTE LTD
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AMENDMENT AGREEMENT (NO. 1)
TO
JOINT VENTURE AGREEMENT ORIGINALLY DATED 13TH MARCH, 1997
AND AMENDED AND RESTATED AS OF 23RD OCTOBER, 2001
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