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EXHIBIT 10 - hhh
CONFIDENTIAL TREATMENT REQUESTED
Joint Venture Agreement
THIS AGREEMENT is made this 20th day of December, 1996
BETWEEN
MEMC ELECTRONIC MATERIALS INC, a company organized and incorporated under the
laws of the State of Delaware, United States of America and having its principal
place of business at 000, Xxxxx Xxxxx, Xx. Xxxxxx, Xxxxxxxx, Xxxxxx Xxxxxx of
America of the one part
AND
KHAZANAH NASIONAL BERHAD [formerly called KHAZANAH HOLDINGS BERHAD], a company
incorporated in Malaysia under the Companies Xxx 0000 and having its registered
office at 00xx Xxxxx, Xxxxx Xxxxx, Xxxxx Xxxxx, 100 Xxxxx Xxxxx, 00000 Xxxxx
Xxxxxx, Xxxxxxxx of the other part.
WHEREAS:-
I. MEMC
A) MEMC has extensive experience and technical expertise and know-how in
the manufacture and sale worldwide of the Product.
B) MEMC is the proprietor of the Trade Xxxx used on the Product.
II. KHAZANAH
KHAZANAH is an investment holding company and holds equity interests in a
large number of companies carrying on a wide range of businesses.
III. JVC
The PARTIES have agreed to cooperate in the form of a joint venture upon
the terms and conditions hereinafter appearing and by a joint venture company
called "MEMC KULIM ELECTRONIC MATERIALS SDN BHD" established by the PARTIES, to
carry on the business of manufacturers in Malaysia and sellers in the ASEAN
Region of the Product.
IV. JOINT VENTURE AGREEMENT
The PARTIES are desirous of:-
A) regulating the relationship between themselves as the holders of JVC
Shares; and
B) making provision for the management and operations of the JVC and the
conduct of the JVC's affairs.
NOW THEREFORE in consideration of the premises and the mutual covenants and
agreements herein contained each PARTY HEREBY AGREES with the other PARTIES as
follows:-
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1. DEFINITIONS & INTERPRETATION
1.1 Definitions
In this Agreement, unless the context otherwise requires, the following
expressions shall have the meanings set forth opposite such expressions:-
"Annual Business Plan" : the JVC's annual business plan as adopted by
the JVC for a financial year of the JVC
"Appropriate Approvals" : all such approvals as may be required by
applicable laws, policies and guidelines (upon terms acceptable to the
relevant parties) and (as applicable) the FIC and MITI and any other
Malaysian or other governmental or quasi-governmental authority to the
purchase of JVC Shares pursuant to Clauses 4 and 11
"ASEAN Region" : the following countries:-
i) Thailand;
ii) Singapore;
iii) Malaysia;
iv) Indonesia;
v) Philippines; and
vi) Brunei;
vii) and for a period of 7 (Seven) years
commencing from the Effective Date,
Vietnam
excluding at all times, any other country which may
be a member of the Association of South East
Asian Nations (ASEAN)
"Certified Value" : in relation to a JVC Share, the value thereof as
valued and certified by the Valuers (acting as experts and not as
arbitrators):-
i) by reference to the fair value of the JVC;
ii) on the assumption that if the JVC is, as at
the date of valuation, carrying on business
as a going concern, it would continue to do
so; and
iii) on the basis of a sale and purchase
between a willing seller and a willing
purchaser made on ordinary commercial
terms and on an armslength basis
"Claimant" : the aggrieved PARTY who refers a dispute or difference to
arbitration in accordance with Clause 19
"Companies Act" : the Malaysian Companies Xxx 0000 and includes all
subsidiary legislation thereto
"Defaulting Party" : the PARTY referred to in Clauses 11.1.1 to 11.1.3
"Distributorship Agreement" : the Distributorship Agreement between
MEMC and the JVC (substantially in the form of the proof thereof annexed
hereto as "Annexure D") and includes all amendments thereto in force from
time to time
"Effective Date" : the date of this Agreement
"Encumbrance" : a lien, pledge, charge, mortgage, assignment or other
encumbrance or security interest
"Event of Default" : any of the events described in Clauses 11.1.1 to
11.1.3
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"FIC" : FOREIGN INVESTMENT COMMITTEE, MALAYSIA
"Intermediate Products" : Silicon ingots and unfinished Wafers
"JVC" : "MEMC KULIM ELECTRONIC MATERIALS SDN BHD" a company
incorporated in Malaysia and having its registered office at 000, 0xx
Xxxxx, Xxxxxxxx Xxxxxxxxxxxx, Xxxxx Xxxxxx Xxxxxx, 00000 Xxxxx Xxxxxx,
Xxxxxxxx.
"JVC Articles" : the Articles of Association of JVC
"JVC Auditors" : the external statutory auditors of the JVC from time
to time
"JVC Board" : Board of Directors of the JVC
"JVC Director" : a Director of the JVC
"JVC Financial Year" : a financial period of 12 (Twelve) months for
which the accounts of the JVC are made up and audited
"JVC M&A" : the Memorandum & Articles of Association of the JVC
"JVC Member" : a holder of JVC Shares registered in the JVC's Register
of Members
"JVC Plant" : the factory and necessary ancillary facilities to be
constructed and equipped by the JVC in Malaysia for the manufacture of the
Product
"JVC President" : the President of the JVC nominated pursuant to
Clause 5.1
"JVC Share" : an ordinary share having a par value of RM1.00 (Ringgit
Malaysia One) in the JVC
"KHAZANAH" : KHAZANAH NASIONAL BERHAD above described
"KLRAC" : REGIONAL CENTRE FOR ARBITRATION, KUALA LUMPUR established
under the auspices of the ASIAN-AFRICAN LEGAL CONSULTATIVE COMMITTEE
"laws" : constitutional provisions, Acts of Parliament, State
Enactments, Ordinances, subsidiary legislation, by-laws, regulations and
rules made pursuant to the foregoing
"Lock-Up Period" : a period of [CONFIDENTIAL MATERIAL HAS BEEN
DELETED AND FILED SEPARATELY WITH SEC] years following the Effective Date
"MEMC" : MEMC ELECTRONIC MATERIALS INC above described
"MEMC Customer" : a 3rd Party Purchaser who is also a purchaser or
prospective customer of the products manufactured by MEMC, MEMC's
Subsidiaries and MEMC JVs
"MEMC JV" : any company or corporation engaged in the manufacture of
Wafers in which MEMC is a stockholder or shareholder
"MITI" : MINISTRY OF INTERNATIONAL TRADE & INDUSTRY, MALAYSIA and
includes MALAYSIAN INDUSTRIAL DEVELOPMENT AUTHORITY
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"Non-Defaulter" : a PARTY which is not the Defaulting PARTY
"Offer" : an offer to sell JVC Shares made pursuant to Clause 4.6
"Offeror" : the holder of the JVC Shares which are the subject of an
Offer
"Offeree" : a JVC Member to whom an Offer is made
"PARTY" : either of the PARTIES
"PARTIES" : KHAZANAH and MEMC and includes any person, firm or company
who delivers a Shareholders Undertaking pursuant to Clause 4.13
"Product" : Wafers and includes such other products as the PARTIES may
agree upon in writing from time to time
"Related Co" : a related company within the meaning assigned to such
expression by Section 6 of the Companies Act
"Respondent" : the PARTY against whom a claim is made pursuant to
Clause 19
"ROC" : the REGISTRAR OF COMPANIES, MALAYSIA
"Rules" : the Rules of Arbitration of the KLRAC
"Said Business" : the manufacture in Malaysia and sale in the ASEAN
Region under the Trade Xxxx of the Product and includes such other
businesses as may be agreed upon in writing between the PARTIES and carried
on by the JVC from time to time
"Shareholders Undertaking" : an undertaking substantially in the terms
set forth in "Annexure A"
"Shareholding Percentages" : the respective proportions [including
those set forth in column (2) of Clause 3.3] in which the JVC's total
issued capital for the time being is held by the JVC Members [and (if
applicable) their respective Subsidiaries and Related Cos] from time to
time
"Silicon" : a semiconductor grade of elemental silicon of sufficient
purity and crystalline structure essential in the manufacture of semi
conductor devices
"Subject Shares" : the JVC Shares comprised in an Offer
"Subsidiary" : a subsidiary within the meaning assigned to such
expression by Section 5 of the Companies Act and "Subsidiaries" shall be
construed accordingly
"3rd Party Purchaser" : a person, firm or company who:-
i) is not a PARTY;
ii) (unless such person, firm or company is a Subsidiary of MEMC
or a MEMC JV or is a purchaser or transferee of JVC Shares
from MEMC, a Subsidiary of MEMC, a MEMC Related Co or a MEMC
JV) does not carry on or hold (directly or indirectly) any
beneficial interest exceeding 5% (Five Percent) in a company
which carries on research into and/or the business of
manufacturers and/or sellers of the Product;
iii) agrees to purchase or to subscribe for JVC Shares; and
iv) agrees to deliver Shareholders Undertakings to and is
consented to (such consent not to be unreasonably withheld)
by such of the PARTIES as shall remain JVC Members
subsequent to the aforesaid person's, firm's or company's
purchase of or subscription for JVC Shares
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"TCA" : the Technology Cooperation Agreement between MEMC and the JVC
(substantially in the form of the proof thereof annexed hereto as "Annexure
C") and includes all amendments thereto in force from time to time
"Trade Xxxx" : MEMC's trade marks particulars whereof are contained in
"Annexure B"
"Valuers" : such major international accounting firm as may be agreed
upon between the seller and purchaser of JVC Shares or, failing
agreement, the JVC Auditors at the material time
"Valuers' Certificate" : the certificate of the Valuers as to the
Certified Value issued pursuant to Clause 4.7
"Wafers" : [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED
SEPARATELY WITH SEC]
1.2 Interpretation
1.2.1 The Annexures hereto shall be taken, read and construed as
essential parts of this Agreement. The headings in this Agreement are
inserted for convenience of reference only and shall not be taken, read and
construed as essential parts of this Agreement. All references to Recitals,
Annexures and Clauses shall be references to recitals and annexures to and
clauses of this Agreement.
1.2.2 All references to provisions of statutes include such provisions
as modified, re-certified or re-enacted. Words applicable to natural
persons include any body of persons, company, corporation, firm or
partnership corporate or incorporate and vice versa. Words importing the
masculine gender shall include the feminine and neuter genders and vice
versa. Words importing the singular number shall include the plural number
and vice versa.
1.2.3 Where two or more persons or parties are included or comprised
in any expression, agreements, covenants, terms, stipulations and
undertakings expressed to be made by or on the part of such persons or
parties shall, unless otherwise provided herein, be deemed to be made by
and be binding upon such persons or parties jointly and severally.
1.2.4 All references to a company includes such company's
successors-in-title and permitted assigns. All references to this Agreement
shall include all amendments and modifications to this Agreement as shall
from time to time be in force.
1.2.5 In computing time for the purposes of this Agreement, unless the
contrary intention appears, a period of days from the happening of an event
or the doing of any act or thing shall be deemed to be exclusive of the day
on which the event happens or the act or thing is done and if the last day
of the period is a weekly or public holiday in Malaysia or the United
States of America, the period shall include the next following day which is
not a weekly or public holiday in Malaysia or the United States of America.
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2. JVC'S NAME, JVC M&A, JVC'S OBJECTIVES, EXECUTION OF AGREEMENTS
2.1 JVC's name & JVC M&A
The JVC shall (subject to the provisions of Clause 2.2) be called "MEMC
KULIM ELECTRONIC MATERIALS SDN BHD".
The JVC's M&A shall reflect the provisions of this Agreement at all times.
In the event of a conflict between the provisions of this Agreement and the
provisions of the JVC M&A, the provisions of this Agreement shall prevail and
the PARTIES shall cause the JVC to amend, with all due speed, the JVC M&A so as
to remove the conflict.
2.2 Use of MEMC's or KHAZANAH's name in JVC's names & products
The PARTIES acknowledge that "MEMC" and "KHAZANAH" are valuable assets of
MEMC and KHAZANAH respectively.
Accordingly if MEMC ceases to hold a direct and/or indirect interest in at
least [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC] of
the total of the JVC Shares issued from time to time or KHAZANAH ceases to
hold any JVC Shares, then (as applicable) MEMC or KHAZANAH shall be entitled
(by notice in writing served upon the JVC) to require that (as applicable)
"MEMC" or KHAZANAH be excluded from the JVC's corporate name.
Upon the service on the JVC of a notice pursuant to this Clause 2.2, such
of the PARTIES as are then JVC Members shall cause all acts and things to be
done so that the JVC changes its corporate name as required and as soon as may
be possible within a period of 120 (One Hundred And Twenty) days from the date
of the aforesaid notice.
For the purpose of this Clause 2.2, the names "MEMC" and "KHAZANAH" shall
include such other name(s) as (as applicable) MEMC or KHAZANAH may hereafter
adopt.
2.3 Objectives
Unless otherwise agreed in writing between the PARTIES, the JVC shall carry
on the Said Business.
2.4 Execution of TCA & Distributorship Agreement
MEMC shall execute and the PARTIES shall cause the JVC to execute the TCA
and the Distributorship Agreement promptly after the Effective Date.
2.5 Reimbursement by JVC of costs & expenses
The PARTIES shall cause the JVC to reimburse to a PARTY (at such time as
the JVC Board deems appropriate and subject to its delivery to the JVC of
relevant receipts or other reasonably acceptable evidence of all payments
made):-
2.5.1 all costs and expenses which such PARTY shall have reasonably
incurred in relation to the incorporation of the JVC;
2.5.2 all costs and expenses which such PARTY shall have reasonably
incurred in relation to the identification and purchase, lease or sub-lease
of the land selected for the JVC Plant; and
2.5.3 such other costs and expenses as a PARTY shall have incurred for
the benefit of the JVC with the prior written approval of a committee
comprising of 1 (One) representative nominated by each of the PARTIES.
2.6 Construction of JVC Plant
The PARTIES acknowledge that the schedule for the commencement and
construction of the JVC Plant must reflect market conditions relating to sales
of the Product. Accordingly if, in the opinion of the JVC Board, weak market
demand for the Product so warrant, the PARTIES shall cause the JVC to delay the
commencement of the construction or the completion of the JVC Plant.
2.7 Sale & purchase of Intermediate Products
The PARTIES shall, as JVC Members, pass appropriate resolutions approving
from time to time, the sale and purchase by the JVC of Intermediate Products to
and from MEMC, MEMC's Subsidiaries and MEMC JVs upon such terms and at such
prices as the JVC Board may reasonably recommend to the JVC Members.
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3. JVC'S CAPITAL
3.1 Restructure of JVC's capital
On such date(s) following the Effective Date as the JVC Board deems
appropriate, the PARTIES shall cause:-
3.1.1 the authorised capital of the JVC to be increased from
RM100,000.00 (Ringgit Malaysia One Hundred Thousand) divided into 100,000
(One Hundred Thousand) JVC Shares to such amount in Ringgit Malaysia as is
equivalent to USD300,000,000.00 (United States Dollars Three Hundred
Million) [rounded up to the nearest million in Ringgit Malaysia] at the
then applicable exchange rate divided into such number of JVC Shares as
reflects the increased authorised capital; and
3.1.2 the issued and paid up share capital of the JVC to be increased
from RM4.00 (Ringgit Malaysia Four) to such amount as the JVC Board deems
necessary and as shall not be less than RM350,000,000.00 (Ringgit Malaysia
Three Hundred and Fifty Million) divided into 350,000,000 (Three Hundred
and Fifty Million) JVC Shares but shall not be more than the authorised
capital of the JVC as increased pursuant to Clause 3.1.1.
3.2 Allotment of JVC Shares and KHAZANAH's Initial Shares
Subject to the provisions of Clause 3.3, the JVC Shares to be allotted to
each of MEMC and KHAZANAH pursuant to Clause 3.1.2 shall be allotted for cash at
par payable upon allotment and each of MEMC and KHAZANAH shall duly subscribe
for such JVC Shares and pay all sums payable by bankers draft/cheque, cashiers
order or telegraphic transfer of the requisite funds to the JVC's account.
3.3 Shareholding Percentages
Notwithstanding anything to the contrary in the JVC M&A but subject to the
provisions of this Agreement, the total issued share capital of the JVC shall
(unless otherwise agreed in writing between the PARTIES or altered pursuant to
this Agreement) be held by the PARTIES or their respective Subsidiaries in the
respective percentages stated in column (2) below:-
====================================== =======================================
(1) (2)
PARTY Shareholding
Percentage
MEMC 75%
KHAZANAH 25%
TOTAL 100%
====================================== =======================================
3.4 Further increase of JVC's capital
At such times as the JVC Board determines it is necessary to increase the
issued and paid up share capital of the JVC (from the amount increased following
the Effective Date in the manner as stated in Clause 3.1.2) in order to meet the
following expenditure :-
3.4.1 JVC's costs and expenses incurred or expected to be incurred
towards the cost of construction of the JVC Plant; and
3.4.2 working capital for the JVC;
the PARTIES shall subscribe for such number of JVC Shares as to ensure that
the total issued share capital of the JVC shall be held by the PARTIES or
their respective Subsidiaries in the respective percentages stated in column
(2) of Clause 3.3.
The JVC Board shall have power to determine the increase of the issued and paid
up share capital of the JVC for the purposes as stated in Clauses 3.4.1
and 3.4.2 and such increase shall not exceed the amount of the authorised
share capital of the JVC as increased following the Effective Date in the
manner as stated in Clause 3.1.1. The PARTIES' subscription of the new JVC
Shares shall be for cash at par payable upon allotment.
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4. PRE-EMPTION
4.1 Restriction on Encumbrances
No PARTY may, during the continuance of this Agreement, create any
Encumbrance on any of the JVC Shares held for the time being by such PARTY
without the prior written consent of the other PARTY.
4.2 Lock-up Period
Except as otherwise provided in Clauses 4.3 to 4.5, 4.14 and 4.15, no PARTY
shall sell, transfer or otherwise dispose of any of its JVC Shares or rights in
or associated with its JVC Shares during the Lock-up Period.
4.3 Permitted sales by KHAZANAH during Lock-up Period
During the Lock-up Period, KHAZANAH shall be at liberty to sell, transfer
or otherwise dispose of any of its JVC Shares to a single 3rd Party Purchaser
if:-
4.3.1 such 3rd Party Purchaser carries on business as a Malaysian
incorporated manufacturer of integrated circuits with facilities in
Malaysia to perform oxidation, diffusion and photolithography, ranks
as and is reasonably expected to continue in the succeeding 5 (Five)
years to rank as one of the top 25 (Twenty Five) MEMC Customers (in
terms of the gross invoice values of their respective purchases from
MEMC, MEMC's Subsidiaries and MEMC JVs of the products manufactured by
them) is a company in which KHAZANAH holds equity shares, delivers to
the PARTIES, a Shareholders Undertaking prior to its acquisition of
the JVC Shares concerned and obtains all relevant Appropriate
Approvals; and
4.3.2 the JVC Shares to be sold, transferred or otherwise
disposed of by KHAZANAH to such 3rd Party Purchaser shall not exceed
5% (Five Percent) of the then issued capital of the JVC.
KHAZANAH shall be entitled to re-purchase any JVC Shares sold, transferred
or disposed of pursuant to this Clause 4.3. The provisions of Clauses 4.6 to
4.11 shall not apply to the sale, transfer or other disposal by KHAZANAH to a
3rd Party Purchaser pursuant to this Clause 4.3 or to the re-purchase by
KHAZANAH and the sale, transfer and disposal of JVC Shares by the 3rd Party
Purchaser concerned to KHAZANAH pursuant to this Clause 4.3.
4.4 Permitted sales by MEMC during Lock-up Period
During the Lock-up Period, MEMC shall be at liberty to sell, transfer or
otherwise dispose of such number of its JVC Shares as shall not exceed in the
aggregate [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH
SEC] of the then issued capital of the JVC to one or several manufacturer(s)
of integrated circuits if such manufacturer(s) deliver(s) to the PARTIES,
Shareholders Undertakings prior to its/their respective acquisition(s) of the
JVC Shares concerned and obtains all relevant Appropriate Approvals.
MEMC shall be entitled to re-purchase any JVC Shares sold, transferred or
disposed of pursuant to this Clause 4.4 and the provisions of Clauses 4.6 to
4.11 shall not apply to the sale, transfer or other disposal by MEMC to a 3rd
Party Purchaser pursuant to this Clause 4.4 or to the re-purchase by MEMC and
the sale, transfer and disposal of JVC Shares by the 3rd Party Purchaser
concerned to MEMC pursuant to this Clause 4.4.
4.5 Sale to a PARTY's Subsidiary or Related Co
A PARTY shall be at liberty at any time (including during the Lock-up
Period) to sell, transfer or otherwise dispose of all of its JVC Shares to its
Subsidiary or Related Co if prior thereto:-
4.5.1 the proposed transferee delivers to the other PARTY:-
i) Shareholders Undertaking; and
ii) a binding undertaking to re-transfer to the PARTY
being the transferor of the JVC Shares concerned, all of such
JVC Shares prior to such Subsidiary or Related Co ceasing to be a
Subsidiary or Related Co of the aforesaid PARTY; and
4.5.2 the PARTY being the transferor of the JVC Shares
concerned delivers to the other PARTIES, a binding guarantee (in
form satisfactory to the other PARTY) guaranteeing the performance
by the proposed transferee (whether a Subsidiary or Related Co of
the transferor) of such transferee's obligations under this Agreement
upon its joinder as a party hereto.
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4.6 Offer
Subject as otherwise provided in Clauses 4.3 to 4.5 and 4.14.1, a JVC
Member who wishes to sell, transfer or otherwise dispose of its JVC Shares shall
first make simultaneous offers in writing to sell all of its JVC Shares to the
other JVC Member(s) for the time being (and if there are more than 1 (One) other
JVC Member, in the proportions in which the nominal value of the JVC Shares held
by the other JVC Members bear to each other as at the date of the Offer) and at
such price as may be agreed upon between the Offeror and the Offeree concerned
within a period of 30 (Thirty) days from the Offeree's receipt of the Offer or
at the Certified Value if the same is acceptable to the Offeror.
An Offer made to MEMC shall be deemed to incorporate a right for MEMC to
nominate a 3rd Party Purchaser to purchase the Subject Shares offered.
Each Offer shall be deemed to be made upon terms that the Offeror shall be
entitled:-
4.6.1 to revoke (in accordance with Clause 4.7) an Offer remaining
unaccepted or to terminate the agreement constituted by such Offer and any
acceptance thereof if the Certified Value of the Subject Shares comprised
in any of the simultaneous Offers is unacceptable to the Offeror who so
notifies an Offeree pursuant to Clause 4.7; and
4.6.2 to terminate pursuant to Clauses 4.7.2, 4.9.1 or 4.11.1 the
agreement constituted by the Offer and the acceptance thereof if ALL of the
Subject Shares comprised in the simultaneous Offers made are not sold as a
result of:-
i) the non-acceptance of any such Offer;
ii) the absence of Appropriate Approvals required for the
acquisition of the Subject Shares accepted by an Offeree or
(if applicable) the 3rd Party Purchaser; or
iii) the Offeree's or (if applicable) the 3rd Party Purchaser's
failure to complete (in accordance with Clause 4.11) its
purchase of the Subject Shares concerned.
4.7 Valuation
If the Offeror and the Offeree fail to agree within a period of 30 (Thirty)
days from the Offeree's receipt of the Offer) on a mutually acceptable price for
the Subject Shares, a major international accounting firm agreed upon between
the Offeror and the Offeree or, failing agreement, the JVC's Auditors shall be
requested by the JVC Board to determine and certify the Certified Value of the
Subject Shares as at the date of the Offer and to issue the Valuer's Certificate
to the Offeror and the Offeree concerned.
The cost and expense of a valuation of Subject Shares shall be borne by the
Offeror and the Offeree in equal shares.
If the Certified Value is not acceptable to the Offeror, the Offeror shall
be entitled by written notice to such effect served upon the Offeree(s)
concerned within 7 (Seven) days from the Offeror's receipt of the Valuer's
Certificate:-
4.7.1 to revoke all or any Offers then remaining unaccepted; and
4.7.2 to terminate all or any of the agreements constituted by an
Offer and an acceptance thereof.
4.8 Acceptance of Offer
An acceptance of an Offer (which has not been revoked pursuant to Clause
4.6) shall be in writing served on the Offeror within 60 (Sixty) days from the
date of the Offeree's receipt of (as applicable):-
4.8.1 the Offer if the price for the Subject Shares is mutually agreed
upon; or
4.8.2 the Valuer's Certificate as to the Certified Value of the
Subject Shares concerned.
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In the absence of an acceptance served as aforesaid by the Offeree
concerned, the Offer made to such Offeree shall be deemed to be rejected by such
Offeree.
An acceptance shall relate to ALL (and not some only) of the Subject Shares
comprised in the Offer and shall be made or deemed to be made subject to the
grant of all Appropriate Approvals to the purchase by the Offeree of the JVC
Shares accepted.
4.9 Partial acceptances & further offers
If any of the Subject Shares comprised in the simultaneous Offers
(available for acceptance) are NOT accepted pursuant to Clause 4.7, the Offeror
shall make simultaneous offers to sell such Subject Shares to the Offeree(s) who
shall have accepted the Offers made to them (and, if there are more than 1 (One)
of such Offerees, in the proportions which the nominal value of the JVC Shares
held by them bear to each other) and at the same price per Subject Share as that
applicable to the Subject Shares already accepted by the Offeree concerned.
An acceptance of an offer made pursuant to this Clause 4.9 shall be in
writing served on the Offeror within 14 (Fourteen) days from the Offeree's
receipt of such offer. In the absence of an acceptance served as aforesaid by
the Offeree concerned, the offer made to such Offeree shall be deemed to be
rejected by such Offeree.
If any of the Subject Shares comprised in the simultaneous Offers
(available for acceptance) remain unsold following upon offers made pursuant to
this Clause 4.9, further offers of such Subject Shares shall be made in
accordance with this Clause 4.9 by the Offeror to such Offerees as shall have
accepted the offers made pursuant to this Clause 4.9.
If any Subject Shares remain unsold following upon such further offers, the
Offeror shall be entitled at its option by notice served on all Offerees within
14 (Fourteen) days from the date of the Offeror's receipt of the last of the
notices served by the Offerees pursuant to this Clause 4.9:-
4.9.1 to terminate the agreements for the sale and purchase of such of
the Subject Shares as are accepted AND to continue to hold all of the
Subject Shares held by the Offeror or to sell all of the Subject Shares to
a 3rd Party Purchaser; or
4.9.2 to proceed with the sale of the Subject Shares as are accepted
AND to continue to hold all of the Subject Shares which were not accepted
or to sell all of such Subject Shares to a single 3rd Party Purchaser.
4.10 Nomination of a 3rd Party Purchaser by MEMC
MEMC being the Offeree of Subject Shares comprised in an Offer shall be
entitled to identify and nominate a 3rd Party Purchaser to accept such Offer and
to purchase such Subject Shares all in the same manner as if the Offer had been
made to such 3rd Party Purchaser. For the purposes of accepting such Offer and
completing the purchase of the Subject Shares concerned, the 3rd Party Purchaser
nominated shall have the same rights as MEMC under Clauses 4.7 to 4.9.
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4.11 Completion by PARTIES concerned
Subject to the grant of all Appropriate Approvals therefor and any
termination by the Offeror pursuant to Clauses 4.7.2 or 4.9.1 of the sale and
purchase agreements for the Subject Shares sold, the sale and transfer of such
of the JVC Shares as are accepted (whether upon Offers made pursuant to Clause
4.6 or further offers made pursuant to Clause 4.9) shall be completed
simultaneously at the JVC's registered office upon the expiry of whichever is
applicable of the following periods each commencing from the date of the
Offeror's receipt of the notices of acceptance (or the last of them) served
pursuant to (as applicable) Clauses 4.8 or 4.10:-
i) if no Appropriate Approvals are required, a period of 30 (Thirty)
days; or
ii) if Appropriate Approvals are required by any Offeree and/or a 3rd
Party Purchaser, a period of 120 (One Hundred And Twenty) days.
If the sale and transfer of any of the Subject Shares are not completed as
a result of the absence of requisite Appropriate Approvals then unless an
Offeree (who is able to complete its purchase of the Subject Shares offered to
such Offeree) agrees to purchase all of the unsold Subject Shares at the price
per Subject Share payable by such Offeree and to complete such purchase
simultaneously with the completion of the purchase of the Subject Shares offered
to such Offeree the Offeror shall be entitled at its option by notice served on
all Offerees and (if applicable) 3rd Party Purchaser concerned:-
4.11.1 to terminate the agreements for the sale and purchase of such
of the Subject Shares comprised in Offers as are accepted and capable of
being completed AND to continue to hold or to sell to a single 3rd Party
Purchaser all of the JVC Shares held by the Offeror; or
4.11.2 to proceed to complete the sale of the Subject Shares as are
capable of being completed AND to continue to hold or sell to a single 3rd
Party Purchaser all of the Subject Shares the sale and purchase whereof
cannot be completed.
4.12 New Offer
A JVC Member who fails to sell, transfer or otherwise dispose of such JVC
Member's JVC Shares pursuant to Clauses 4.6 to 4.11 may make another Offer to
sell the same in accordance with Clauses 4.6 to 4.11.
4.13 Sale to 3rd Party Purchaser
Any sale of Subject Shares to a 3rd Party Purchaser pursuant to Clause 4.9
or 4.11 shall be:-
4.13.1 at a price which is not less than the highest price per Subject
Share payable to the Offeror by an Offeree who has served a notice of
acceptance pursuant to Clause 4.8; and
4.13.2 subject to the delivery by the 3rd Party Purchaser to such of
the PARTIES as will continue to be JVC Members of Shareholders Undertaking
and if such 3rd Party Purchaser is a company, satisfactory evidence that it
is duly authorised to give the Shareholders Undertaking.
4.14 Change of ownership of MEMC's business & assets
If beneficial ownership of substantially all of the business and assets of
MEMC shall be transferred in its entirety at any time:-
4.14.1 MEMC shall be at liberty to sell, transfer or otherwise dispose
of its JVC Shares to the acquirer (of the beneficial ownership of
substantially all of the business and assets of MEMC) at such price and
upon such terms as MEMC deems fit subject to the delivery by such acquirer
to such of the PARTIES as will continue to be JVC Members, of Shareholders
Undertakings and if such acquirer is a company, satisfactory evidence that
it is duly authorised to give the Shareholders Undertaking. AND the
provisions of Clauses 4.2, 4.6 to 4.11 shall not apply to the sale,
transfer and disposal by MEMC of its JVC Shares pursuant to this Clause
4.14.1; and
4.14.2 KHAZANAH shall be at liberty to sell, transfer or otherwise
dispose of all of its JVC Shares in accordance with Clauses 4.6 to 4.11 AND
the provisions of Clause 4.2 shall not apply to the sale, transfer and
disposal by KHAZANAH of its JVC Shares pursuant to this Clause 4.14.2.
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4.15 Mandatory offer of sale
If a PARTY (other than MEMC, a subsidiary of MEMC or a MEMC JV or any other
PARTY who shall have acquired JVC Shares from MEMC, a Subsidiary of MEMC, MEMC's
Related Co or a MEMC JV) carries on or holds (directly or indirectly) at any
time, any beneficial interest exceeding 5% (Five Percent) in a company which
carries on research into and/or the business of manufacturers and/or sellers of
the Product, such PARTY shall within 7 (Seven) days of its commencement of such
research and/or business or of the acquisition of the beneficial interest
concerned, make, in accordance with Clause 4.6, an offer to sell to the other
PARTIES, all of the JVC Shares held by such PARTY whereupon the provisions of
Clauses 4.6 to 4.11 shall apply to the sale and transfer of such JVC Shares.
5. BOARD OF DIRECTORS
5.1 Nomination
There shall be no fewer than 7 (seven) and no more than 10 (Ten) JVC
Directors.
Subject to applicable laws, the JVC Board shall be constituted as nearly as
may be possible, by such persons as are nominated in accordance with this
Agreement by the PARTIES (or, if applicable, their respective Subsidiaries or
Related Cos) in the Shareholding Percentages. So long as the PARTIES hold the
total issued capital of the JVC in the Shareholding Percentages stated in Clause
3.3:-
5.1.1 7 (seven) JVC Directors shall be nominated by MEMC; and
5.1.2 2 (two) JVC Directors shall be nominated by KHAZANAH.
So long as MEMC (and if applicable, aggregated with its Subsidiaries' or
Related Co's shareholding in the JVC) has the largest shareholding in the JVC,
the Chairman of the JVC Board shall be such of the JVC Directors nominated by
MEMC (or, if applicable, its Subsidiary or Related Co) as MEMC (or, if
applicable, its Subsidiary or Related Co) selects.
So long as KHAZANAH (and if applicable, aggregated with its Subsidiaries'
or Related Co's shareholding in the JVC) has the second largest shareholding in
the JVC the Deputy Chairman of the JVC Board shall be such of the JVC Directors
nominated by KHAZANAH (or, if applicable, its Subsidiary or Related Co) as
KHAZANAH (or, if applicable, its Subsidiary or Related Co) selects.
So long as MEMC (and if applicable, aggregated with its Subsidiaries' or
Related Co's shareholding in the JVC) has the largest shareholding in the JVC,
the JVC President (who shall act as the chief executive officer of the JVC)
shall be such of the JVC Directors nominated by MEMC (or, if applicable, its
Subsidiary or Related Co) as MEMC (or, if applicable, its Subsidiary or Related
Co) selects.
5.2 Appointments & removals
A JVC Member is entitled to nominate and appoint a JVC Director for every
10% (Ten percent) of the JVC Shares held by such JVC Member in the JVC.
A JVC Member entitled to appoint a JVC Director shall be entitled:-
5.2.1 to appoint an Alternate Director to such JVC Director;
5.2.2 to determine the period such JVC Director and his Alternate
Director shall hold office;
5.2.3 to fill any casual vacancy arising from the JVC Director
appointed or his Alternate Director vacating his office; and
5.2.4 to remove such JVC Director or his Alternate Director and
appoint another in his place.
Any such appointment, determination and removal shall be by notice in
writing to the JVC and such notice shall (subject to the provisions of the
Companies Act) take effect when it is delivered to the Secretary of the JVC.
The JVC Member appointing, determining and removing a JVC
Director/Alternate Director shall indemnify and save harmless the JVC from all
claims (if any) by the JVC Director/Alternate Director appointed or removed and
resulting from the appointment, determination or removal.
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5.3 Resignations
If in pursuance of Clause 5.2, a purchaser of JVC Shares shall be entitled,
by reason of his holding thereof, to nominate a number of JVC Directors, then
simultaneously with the completion of the sale of the JVC Shares concerned, the
PARTY who is the seller thereof shall:-
5.3.1 cause such number of the persons as shall have been nominated by
such PARTY to hold office as JVC Directors (and as shall be equivalent to
the number of JVC Directors which the aforesaid purchaser is entitled to
appoint):-
i) to resign from such office; and
ii) to disclaim unconditionally and in writing, all rights (if any)
to such monies as may be payable by JVC to such person(s) by way
of compensation for loss of office; and
5.3.2 remove the aforesaid persons from office as JVC Directors if
they do not resign from such office as aforesaid or give the aforesaid
disclaimer.
The PARTIES (other than the PARTY who is the seller of the JVC Shares)
shall agree to the nomination by the acquirer (of the JVC Shares hereinbefore
referred to) of a JVC Director in the place of each JVC Director who resigns or
is removed pursuant to the foregoing provisions of this Clause 5.3.
5.4 No rotation or removal by JVC
The JVC Directors shall not be required to retire by rotation nor shall
they be removed by the JVC.
Any removal of any JVC Director may be effected only by the JVC Member
which appointed the JVC Director concerned.
5.5 No shareholding qualification
There shall not be any shareholding qualification for the holding of the
office of a JVC Director.
5.6 Meetings of JVC Board
Meetings of the JVC Board shall be convened and held at regular intervals
not exceeding 6 (Six) months each.
In addition to such meetings of the JVC Board as may be convened by order
of the JVC Board, the Secretary of the JVC shall, upon being directed so to do
by the Chairman or President and any JVC Director, give notice of a meeting of
the JVC Board. The JVC shall pay/reimburse to (as applicable) the JVC Directors
or their Alternates, all such costs and expenses (including travelling,
accommodation and other out-of-pocket expenses) as may reasonably be incurred by
them in attending meetings of the JVC Board. Save as aforesaid and unless
otherwise determined by the JVC Board, the JVC Directors shall not be entitled
to any payment for acting as a JVC Director of the JVC.
5.7 Notice of JVC Board meetings
A meeting of the JVC Board shall be called by notice in writing served on
all of the JVC Directors. Unless a majority of the JVC Directors (including at
least 1 (One) JVC Director appointed by each of MEMC and KHAZANAH) otherwise
agree, the period of notice given (exclusive of the date of the notice and of
the date of the meeting concerned) shall not be less than 14 (Fourteen) days.
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Each notice of a meeting of the JVC Board shall be:-
5.7.1 accompanied by an agenda specifying in reasonable detail, all
the business to be transacted thereat and all relevant papers for
consideration or discussion; and
5.7.2 sent by hand, courier or registered post to such of the JVC
Directors as reside in Malaysia and by telefax (with copy sent by courier
or registered post) or courier or registered airmail to such of the JVC
Directors as reside outside Malaysia.
5.8 Quorum
The quorum for all meetings of the JVC Board (other than an adjourned
meeting) shall be 2 (Two) JVC Directors (or their duly appointed Alternate
Directors) comprising of at least 1 (One) JVC Director nominated by each of MEMC
and KHAZANAH.
If such a quorum is not present at any meeting of the JVC Board within
half-an- hour of the time appointed for the meeting, then (unless the PARTIES
otherwise agree in writing) such meeting shall stand adjourned to the day next
immediately following the day of the initial meeting and at the same time and
place as the initial meeting. If, at the adjourned meeting, a quorum is not
present within half an hour from the time appointed for the adjourned meeting, a
majority of the JVC Directors shall constitute a quorum.
At any adjourned meeting of the JVC Board, only matters specified in the
notice of the initial meeting of the JVC Board may be decided.
5.9 Chairman of JVC Board meetings
The Chairman of the JVC Board shall be the Chairman of all meetings of JVC
Directors. In the absence of the Chairman within 15 (Fifteen) minutes after the
time appointed for the holding of the meeting or if he is unwilling to act, the
Deputy Chairman of the JVC Board (and in his absence or if he is unwilling to
act) any JVC Director appointed by the JVC Board shall act as Chairman of the
meeting.
5.10 Voting
Subject to the provisions of Clause 7, a resolution of the JVC Board at a
meeting of the JVC Directors is valid if passed by an affirmative vote of a
simple majority of the JVC Directors present and voting.
The Chairman of the JVC Board shall have a second or casting vote in the
case of an equality of votes in a meeting of the JVC Board.
5.11 JVC Directors' resolutions in writing
Subject to the provisions of Clause 7, a resolution in writing signed by a
simple majority of the JVC Directors (including at least 1 (One) JVC Director
appointed by each of MEMC and, so long as KHAZANAH holds not less than 20%
(Twenty Percent) of all of the then issued JVC Shares, at least 1 (One) JVC
Director appointed by KHAZANAH) shall be as valid and effectual as if it had
been passed at a meeting of the JVC Board duly convened and held.
Any such resolution in writing may be contained in one document or separate
copies thereof (prepared and circulated by telefax, telex or telegram with copy
sent by courier or registered post) which is signed by one or more of the JVC
Directors. An approval by letter or other written means of a proposed resolution
in writing (which has been prepared and circulated as aforesaid) signed by a JVC
Director and sent by him by telefax, telex or telegram (with copy sent by
courier or registered post) shall be deemed to be a document signed by him for
the purposes of the foregoing provisions.
Where 2 (Two) or more documents or copies of a document are prepared and
circulated for the purpose of obtaining signatures, each of such documents or
copies shall be certified in advance by the Secretary of the JVC as a true copy
of the proposed resolution in writing.
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5.12 Indemnity to JVC Directors and officers
The PARTIES shall cause the JVC to the fullest extent permitted by any
applicable law:-
5.12.1 to indemnify any JVC Director and any other person as the JVC
Board deems appropriate, who was or is a party or is threatened to be made
a party to any threatened, pending or completed action, suit or proceeding
(whether civil, criminal, administrative, arbitrative or investigative) any
appeal in such an action, suit or proceeding and any inquiry or
investigation that could lead to such an action, suit or proceeding by
reason of the fact:-
i) that he is or was a JVC Director or an officer, employee or agent
of the JVC; or
ii) that he is or was serving at the JVC's request as a director,
officer, partner, venturer, proprietor, trustee, employee, agent
or similar functionary of another company, corporation,
partnership, joint venture, sole proprietorship, trust,
non-profit entity, employee benefit plan or other enterprise
against all judgements, penalties (including excise and
similar taxes), fines, settlements and expenses (including
solicitors' and attorneys' fees and court costs) actually and
reasonably incurred by him in connection with such action, suit
or proceeding and to the effect that such indemnity shall inure
to the benefit of his heirs, executors and administrators; and
5.12.2 to pay and advance, if the JVC Board deems fit, the
expenses incurred by the JVC Director or person indemnified pursuant
to Clause 5.12.1 in defending any action, suit or proceeding and the
like and upon such terms as the JVC Board deems appropriate
the aforesaid indemnification and advancement of expenses to be
provided or granted to be in addition to and without prejudice to any other
right to which the person indemnified may be entitled under any laws.
6. GENERAL MEETINGS
6.1 Quorum
The quorum necessary for the transaction of business at a General Meeting
of the JVC shall be 2 (Two) JVC Members holding at least 50% (Fifty Percent) of
the total issued JVC Shares for the time being present in person or their
corporate representatives or proxies.
If within half-an-hour from the time appointed for the holding of a General
Meeting, a quorum as aforesaid is not present, the meeting shall stand adjourned
to the same day the following day at the same time and place. No notice of the
adjourned meeting shall be required to be given.
If at the adjourned meeting a quorum as aforesaid is not present within
half-an- hour from the time appointed for holding the meeting, such JVC
Member(s) holding not less than 50% (Fifty Percent) of the JVC's then issued
capital shall be a quorum.
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6.2 Voting
Subject to the provisions of Clause 7 and except as otherwise required by
the Companies Act or by law, matters arising at a General Meeting of the JVC
shall be decided as follows whether on a show of hands or upon a poll by an
affirmative vote of such number of the JVC Members holding for the time being
more than 50% (Fifty percent) of the total number of issued and paid up JVC
Shares.
6.3 JVC Members resolution in writing
Subject to the provisions of the Companies Act and of Clause 7, a
resolution in writing of the JVC Members shall be valid if the same shall have
been signed by such number of the JVC Members holding for the time being more
than 50% (Fifty percent) of the total number of issued and paid up JVC Shares
for the time being.
Any such resolution in writing may be contained in one document or separate
copies thereof (prepared and circulated by telefax, telex or telegram with copy
sent by courier or registered post) which is signed by one or more of the JVC
Members. An approval by letter or other written means of a proposed resolution
in writing (which has been prepared and circulated as aforesaid) signed by a JVC
Member and sent by him by telefax, telex or telegram (with copy sent by courier
or registered post) shall be deemed to be a document signed by him for the
purposes of the foregoing provisions.
Where 2 (Two) or more documents or copies of a document are prepared and
circulated for the purpose of obtaining signatures, each of such documents in
copies shall be certified in advance by the Secretary of the JVC as a true copy
of the proposed resolution in writing.
7. RESERVED MATTERS
7.1 Description of Reserved Matters
So long as KHAZANAH holds not less than [CONFIDENTIAL MATERIAL HAS BEEN
DELETED AND FILED SEPARATELY WITH SEC] of all of the then issued JVC Shares,
a resolution of the JVC to transact any of the following matters shall be
valid only if the transaction shall have been first approved in writing by
MEMC and KHAZANAH:-
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC]
7.2 Non-accrual of personal rights
The rights conferred upon MEMC and KHAZANAH by Clause 7.1 being personal to
MEMC and KHAZANAH, none of such rights shall accrue to or be exercisable by any
acquirer of JVC Shares held from time to time by (as applicable) MEMC or
XXXXXXXX.
00
0. MANAGEMENT OF THE JVC
8.1 JVC President
The JVC Board shall delegate to the JVC President such powers, authorities
and discretions as may be necessary for the JVC President to be entrusted with
overall supervision and control of the day-to-day management of the JVC and
conferred with responsibility for the day to day coordination of the various
activities of the JVC and its observance and performance of the terms and
conditions of any contract to which it is a party.
Without derogating from the generality of the foregoing provisions, the JVC
President shall be empowered:-
8.1.1 to enter into contracts in the JVC's ordinary course of
business and in implementation of the Annual Business Plan approved by
the JVC Board; and
8.1.2 to engage and dismiss officers, workmen, servants and other
personnel upon such terms as to work functions and terms and
conditions of employment and also to modify such terms and conditions
in accordance with the JVC's approved Annual Business Plan and the
JVC's employment policy.
8.2 Key management personnel
The JVC's key management personnel shall consist of the JVC President,
Financial Controller, Director (Technology) and Director (Operations) all being
persons nominated by MEMC so long as MEMC (and if applicable, aggregated with
its Subsidiaries' or Related Co's shareholding in the JVC) has the largest
shareholding in the JVC.
9. BUSINESS POLICY, FINANCIAL YEAR & POLICY & ANNUAL BUSINESS PLAN
9.1 Financial Year, JVC Auditors & Accounts
9.1.1 The annual financial period for which the accounts of the
JVC shall be made up and audited shall terminate in each calendar year
on the 31st day of December or such other date as the PARTIES may
agree upon to comply with any applicable law.
9.1.2 The JVC Auditors shall be such major international
accounting firm as the JVC Board shall determine.
9.1.3 The accounts of the JVC shall be kept in English at its
registered office. All transactions of the JVC shall be adequately and
fully recorded and reflected in the JVC's accounts so that the JVC's
accounts give a true and fair view of the financial affairs of the
JVC. The PARTIES (and their authorised representatives) shall have the
right to inspect the JVC's accounts during the JVC's normal business
hours and to make copies of such accounts.
9.1.4 The accounts of the JVC shall be prepared on a historical
cost basis and in accordance with generally accepted accounting
principles consistently applied.
9.1.5 For the purposes of Clause 9.1.3, the PARTIES shall cause
the JVC to devise and maintain a system of internal accounting
controls sufficient to provide reasonable assurance that:-
i) transactions are executed in accordance with the JVC's
Board's and the managing officers' general or specific
authorization;
ii) transactions are recorded as necessary:-
a) to permit preparation of financial statement in
conformity with generally accepted accounting
principles or any other criteria applicable to such
statements; and
b) to maintain accountability for assets;
iii) access to assets is permitted only in accordance with the
JVC's Board's and managing officers' general or specific
authorization; and
iv) the recorded accountability for assets is compared with the
existing assets at reasonable intervals and appropriate
action is taken with respect to any differences.
9.1.6 The PARTIES shall cause the JVC to modify or supplement
such accounting and record keeping procedures in such manner as may be
necessary from time to time to enable MEMC and its designees to comply
with the provisions of the United States Foreign Corrupt Practices
Act, as amended from time to time, including any accounting and other
regulations adopted in connection therewith.
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9.2 Financing policy
The PARTIES anticipate that the costs of the JVC Plant (including
construction costs) shall be funded entirely from the JVC's share capital but
shall be at liberty to finance any part of such costs with borrowings from third
parties.
If:-
9.2.1 the financial requirements of the JVC exceeds the total
issued capital and retained earnings of the JVC as herein provided; or
9.2.2 bank guarantees, performance bonds, indemnities and the
like are required by the JVC in the ordinary course of the Said
Business
the PARTIES shall use their best endeavours to assist the JVC to raise the
additional working capital and the aforesaid bank guarantees, performance bonds,
indemnities and the like by obtaining from banks and other financial
institutions, such loans, credit, guarantee and other facilities as the JVC
Board may approve.
Without derogating from the generality of the foregoing provisions,
KHAZANAH shall render every assistance in obtaining on the best terms obtainable
from fund based and non-fund based banks in Malaysia, the facilities required by
the JVC from time to time and shall also assist (as applicable) the JVC and/or
MEMC to obtain all approvals, permissions, consents and the like required of the
Appropriate Authorities in relation to the acceptance of such facilities.
Unless the JVC Members otherwise agree in writing, nothing herein contained
shall be construed to render any JVC Member liable to provide the aforesaid sums
or any part thereof by way of loans to the JVC or to require any of the JVC
Directors to guarantee the payment by the JVC of moneys due and owing from time
to time and at any time by the JVC.
9.3 JVC Members' Guarantees
Unless the JVC Members otherwise agree, nothing herein shall be construed
to render any JVC Member liable to provide any guarantee for the repayment by
the JVC of the loans, credit, guarantee and other facilities referred to in
Clause 9.2.
Such guarantees as all of the JVC Members may agree to provide from time to
time for the repayment by the JVC of the loans, credit, guarantee and other
facilities referred to in Clause 9.2 shall be given (subject to all applicable
laws) by the JVC Members in the Shareholding Percentages but if a JVC Member
shall not be permitted by applicable laws to give the aforesaid guarantees
then:-
9.3.1 such JVC Member will provide an alternative to the
guarantee required of such JVC Member (including giving an indemnity
if so permitted by applicable laws or subscribing for redeemable,
non-convertible, non-voting preference shares in the JVC) for its
proportion of the aforesaid indebtedness; or
9.3.2 if the other JVC Members so agree (but without being
obliged so to do) such JVC Members shall provide in the proportions
which the JVC Shares held by them bear to each other, guarantees for
the amount which would otherwise have been guaranteed by the JVC
Member referred to in Clause 9.3.1 if such JVC Member delivers to the
others of the JVC Members, indemnities (in terms acceptable to such
other JVC Members).
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9.4 Annual Business Plan & Periodical Reports
The PARTIES shall (by the JVC Directors appointed by them) cause the JVC:-
9.4.1 to prepare and furnish the following documents at the
following times to the JVC Directors [for approval in the case of the
Annual Business Plan referred to in Clause 9.4.1(i)]:-
i) at least 60 (Sixty) days prior to the end of each of the
JVC's financial years, a draft of the Annual Business Plan
to be adopted by the JVC for the JVC's financial year next
following; and
ii) within 45 (Forty Five) days of the end of each quarter, a
balance sheet and profit and loss statement for the
preceding quarter; and
9.4.2 to require the JVC Auditors to prepare and furnish within
90 (Ninety) days of the end of each of the JVC's financial years, the
audited financial statements of the JVC for the preceding financial
year.
9.5 Dividends & Distribution of Profits
The amount of final dividends to be declared by the JVC in a financial year
shall be determined by the JVC Board acting in the best interests of the JVC and
with regard to the following:-
i) the importance to the JVC of a sound capital structure which
is consistent with regulatory requirements and the JVC's
operational and growth requirements;
ii) the reinvestment of profits (in particular, for the purposes
of increasing the capacity of the JVC Plant) from time to
time and, in particular, during the JVC's initial 5 (Five)
financial years; and
iii) the maintenance of a balance between the foregoing
considerations and the PARTIES' need for returns on their
investments in the JVC.
10. REPRESENTATIONS AND WARRANTIES
Each of the PARTIES hereby represent to the other that:-
10.1 it is a corporation duly organized and incorporated and validly
existing and in good standing under the laws of the jurisdiction of its
incorporation and has full power and authority to execute and deliver and
perform all of its obligations under this Agreement and in the case of MEMC, the
TCA and the Distributorship Agreement and any other agreements contemplated
hereunder;
10.2 this Agreement is, and all other agreements and instruments
contemplated hereunder shall be, when executed and delivered, enforceable
against it in accordance with their terms except insofar as:-
10.2.1 such enforcement may be subject to bankruptcy, insolvency,
reorganization, moratorium or other similar laws now or hereafter in
effect relating to creditors' rights; and
10.2.2 the remedy of specific performance and injunctive and
other forms of equitable relief may be subject to equitable defenses
and to the discretion of the court before which any proceeding
therefor may be brought; and
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10.3 the execution, delivery and performance of this Agreement by it will
not conflict with:-
10.3.1 existing law, order, judgement, decree, rule or regulation
of any court, arbitral tribunal or governmental agency, which is
applicable to it; or
10.3.2 any material agreement, instrument or indenture to which
it is a party.
11. TERMINATION
11.1 Events of Default
Each of the following events shall be an Event of Default:-
11.1.1 if a PARTY commits or allows to be committed a material
breach of any of such PARTY's obligations hereunder and does not
remedy such breach within 30 (Thirty) days after written notice has
been given to such PARTY by any other PARTY requiring such remedy; or
11.1.2 if a petition shall be presented or an order made or a
resolution passed for the winding up (except as part of a bona fide
scheme of reconstruction or amalgamation) of a PARTY or a PARTY shall
compound with its creditors or have a receiver appointed of the whole
or any part of its assets or shall cease or threaten to cease (other
than in the course of reconstruction or amalgamation) to carry on the
whole or any substantial part of its business; or
11.1.3 if in breach of an undertaking given in accordance with
Clause 4.5.1, a Subsidiary of a PARTY fails to re-transfer prior to
its ceasing to be such Subsidiary, the JVC Shares held by such
Subsidiary to the PARTY who transferred such JVC Shares and continues
to so fail for a period of 45 (Forty Five) days after the aforesaid
Subsidiary ceased to be a Subsidiary of the aforesaid PARTY.
11.2 Call option/deemed offer of sale/winding-up
Upon the occurrence of an Event of Default, the Non-Defaulter(s) shall be
entitled (but shall not be obliged and in relation to the remedies described in
Clauses 11.2.2 to 11.2.4, only if the Non-Defaulter(s) hold(s) more than 50%
(Fifty Percent) of the JVC's then issued capital) by notice in writing issued by
the Non-Defaulter (or if there are several of them, by all of the Non-Defaulters
or, in the case of the remedies described in Clauses 11.2.2 to 11.2.4, by such
of the Non-Defaulters as hold a simple majority of the total number of the JVC
Shares held by all of the Non-Defaulters) and served on the Defaulter within 180
(One Hundred And Eighty) days from the date on which the Non-Defaulter(s) became
aware of the occurrence of the Event of Default:-
11.2.1 to require the Defaulter to purchase, (subject to the
grant of all Appropriate Approvals) all of the JVC Shares held by the
Non-Defaulter(s) in which event, the Defaulter shall purchase the
aforesaid JVC Shares at the price and otherwise upon the terms
provided in Clauses 11.3 to 11.7; or
11.2.2 to require the Defaulter to sell to the Non-Defaulter(s)
(subject to the grant of all Appropriate Approvals) and if there are
several Non-Defaulters, in the proportions in which the JVC Shares
held by them bear to each other) all of the JVC Shares held by the
Defaulter whereupon the Defaulter shall immediately make an offer
(failing which it shall be deemed to have made an offer upon its
receipt of the notice served as aforesaid) to sell to the Non-
Defaulter(s) the JVC Shares held by the Defaulter, at the price and
otherwise upon the terms provided in Clauses 11.3 to 11.7; or
11.2.3 to require that the JVC be wound up in which event, the
PARTIES shall forthwith do all acts and things to procure the winding
up of the JVC in accordance with all applicable laws and the JVC
Articles; and/or
11.2.4 to terminate this Agreement but without prejudice to the
Defaulter's obligations arising upon the service of the aforesaid
notice and any rights or liabilities of any PARTY hereunder whether
pre-existing or arising from the termination of this Agreement.
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Failing unanimity between several Non-Defaulters in relation thereto, the
remedy to be adopted pursuant to this Clause 11.2, shall be selected by such of
the Non- Defaulter(s) as hold (and, if applicable, in the aggregate) a simple
majority of the total number of the JVC Shares held by all of the
Non-Defaulters.
11.3 Sale price
The JVC Shares referred to in Clauses 11.2.1 and 11.2.2 shall be sold and
purchased at the Certified Value as established and certified by the JVC
Auditors.
The costs incurred in establishing the Certified Value of the JVC Shares
referred to in Clauses 11.2.1 and 11.2.2 shall be borne by the Defaulter.
The aforesaid costs may be deducted from the proceeds of sale of the JVC
Shares sold by the Defaulter and applied in discharge of the aforesaid costs.
11.4 Time for acceptance
The offer to sell the JVC Shares referred to in Clause 11.2.2 shall remain
open for acceptance for a period of 45 (Forty Five) days from the date on which
the Certified Value is certified. Failing acceptance as aforesaid, the offer
shall be deemed to be declined.
11.5 Further offers
Any JVC Share remaining unaccepted pursuant to Clause 11.4 shall be deemed
to be offered by the selling PARTY for sale at the Certified Value to such
PARTIES as shall have accepted as aforesaid the JVC Shares offered to them and
in the proportions in which the JVC Shares held by them bear to each other. Such
PARTIES shall be at liberty to accept the JVC Shares offered pursuant to this
Clause 11.5 within 30 (Thirty) days from the date of expiry of the period of 45
(Forty Five) days referred to in Clause 11.4.
If any JVC Shares remain undisposed of pursuant to the foregoing
provisions, then such further offers as may be necessary shall be deemed to be
made in like manner until all of the JVC Shares concerned shall have been sold.
11.6 Acceptances to be subject to the grant of Appropriate Approvals
Any acceptance given pursuant to the foregoing provisions shall be deemed
to be made subject to the grant of all Appropriate Approvals.
If a PARTY who has accepted an offer made pursuant to Clause 11.2.2 or 11.5
fails to obtain all Appropriate Approvals for the purchase of the JVC Shares
concerned, such PARTY shall be entitled to nominate a 3rd Party Purchaser to
purchase the JVC Shares concerned in the place of such PARTY.
11.7 Completion of sale and purchase
The sale and purchase of the JVC Shares referred to in Clauses 11.2.1 and
11.2.2 (the offer wherefor shall have been accepted in the case described in
Clause 11.2.2) shall be completed (subject to the grant of all Appropriate
Approvals or, if applicable, the nomination of a 3rd Party Purchaser) at the
JVC's registered office within a period of 40 (Forty) days from the date on
which the Certified Value is certified or the grant of the last of the
Appropriate Approvals whichever shall be the later.
For the purposes of the completion of such sale and purchase:-
11.7.1 the PARTY who is the seller of the JVC Shares aforesaid,
shall deliver to the purchasing PARTY or, if applicable, the 3rd Party
Purchaser nominated, the share certificates to the JVC Shares sold
together with valid and registrable forms of transfer thereof executed
by such PARTY in favour of the purchasing PARTY or, if applicable, the
3rd Party Purchaser; and
11.7.2 the purchasing PARTY or, if applicable, the 3rd Party
Purchaser shall (against the delivery of the aforesaid share
certificates and forms of transfer) pay to the selling PARTY the
Certified Value for such JVC Shares after deduction (if applicable) of
the costs incurred in establishing the Certified Value thereof.
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12. MUTUAL CO-OPERATION
12.1 Compliance
Each PARTY shall do all acts and things within its power (including
exercising its voting rights in the JVC for the time being) to procure the
implementation of the provisions of this Agreement.
12.2 Fair operation of Agreement
In entering into this Agreement, the PARTIES recognise that it is
impracticable to make provision for every contingency that may arise in the
course of the performance hereof.
Accordingly, the PARTIES hereby declare it to be their intention that this
Agreement shall operate between them with fairness and without detriment to the
interests of any of them and if, in the course of the performance of this
Agreement, unfairness to any PARTY is disclosed or anticipated, then the PARTIES
shall use their best endeavours to agree upon such action as may be necessary
and equitable to remove the cause(s) of the same.
12.3 Review of provisions
Without prejudice to the generality of Clause 12.2, the PARTIES hereby
expressly agree that if the laws governing this Agreement and/or the
interpretation thereof and/or governmental policies affecting the same in force
and applied as at the date of this Agreement shall be amended, varied or
modified in any manner as a result whereof any PARTY may suffer prejudice
(whether by reason of a change in the construction placed on the rights and
obligations hereunder of such PARTY or otherwise) then the PARTIES shall review
the provisions of this Agreement with a view to making such modifications and
alterations of the same as may appear desirable and expedient and so as to
restore the PARTIES to their rights and obligations as contemplated as at the
date of this Agreement.
13. CONFIDENTIALITY & PUBLICITY
13.1 Meanings
In Clauses 13.2 and 13.3, the expressions "JVC Technical Information" and
"MEMC Technical Information" shall have the respective meanings given to such
expressions by the TCA and the expression "secret or confidential information"
includes all such information and other materials as shall be marked
"CONFIDENTIAL" or "SECRET" or is by its nature intended to be retained in
confidence) given to or received by a PARTY and whether given by the JVC or
another of the JVC Members.
The expression "Third Party" in Clause 13.3.3 means:-
13.1.1 in relation to MEMC Technical Information and other secret
or confidential information received by the JVC from MEMC pursuant to
the TCA, a party other than MEMC; and
13.1.2 in relation to JVC Technical Information and other secret
or confidential information belonging to the JVC, a party other than
the JVC.
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13.2 Duty of confidentiality
Subject to the provisions of Clause 13.3, as from the date of this
Agreement and for 10 (Ten) years following the termination for any reason
whatsoever of the TCA, each PARTY shall and shall use its best endeavours to
cause the JVC to keep confidential:-
13.2.1 all MEMC Technical Information and other secret or
confidential information received by the JVC from MEMC pursuant to the
TCA; and
13.2.2 all JVC Technical Information and other secret and
confidential information belonging to the JVC
and restrict and use its best endeavours to cause the JVC to restrict access to
the same to such directors, officers, employees, and representatives of (as
applicable) such PARTY or the JVC as have a reasonable need for such information
in carrying out their respective duties on behalf of (as applicable) such PARTY
or the JVC.
Prior to its permitting such of its directors, officers, employees and
representatives as aforesaid, access to any MEMC Technical Information and other
secret or confidential information received by the JVC from MEMC pursuant to the
TCA and/or any JVC Technical Information and other secret and confidential
information belonging to the JVC, a PARTY shall require its directors, officers,
employees and representatives concerned to execute a confidentiality agreement
in terms acceptable to (as applicable) MEMC or the JVC.
13.3 Exceptions to duty of confidentiality
A PARTY's duty of confidentiality under Clause 13.2 shall not be applicable
to information which:-
13.3.1 was in the public domain at the time of disclosure or
comes into the public domain (otherwise than by reason of a breach by
such PARTY of Clause 13.2);
13.3.2 such PARTY can show by written or other tangible evidence
was in its possession at the time of the disclosure and which such
PARTY without breach of any obligation is free to disclose to others;
13.3.3 was received by such PARTY from a Third Party who did not
acquire it, directly or indirectly, from (as applicable) MEMC or the
JVC under an obligation of confidentiality and which the Third Party
without breach of any obligation is free to disclose to others; or
13.3.4 is required to be disclosed by laws, regulations, or court
orders provided that all reasonably necessary steps are taken by such
PARTY to the extent permitted by law, government regulations, and
court orders to maintain the information as confidential, and provided
further that (as applicable) MEMC or the JVC is given advance notice
that such a disclosure is being required.
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13.4 Publicity
Except with the prior written consent of the other PARTIES or when required
by law, regulation or other competent authority, a PARTY shall not make or issue
or permit or authorise the making or issue of any public statement or
announcement or press release concerning this Agreement or any of the
transactions hereby contemplated and shall consult with the other PARTIES prior
to making or issuing any such public statement or announcement or press release
as is permitted by the foregoing provisions.
14. DURATION
The provisions of this Agreement shall take effect on the Effective Date
and shall continue thereafter in full force and effect until:-
14.1 the JVC shall be dissolved or otherwise cease to exist as a separate
entity; or
14.2 this Agreement is terminated by mutual consent of the PARTIES; or
14.3 this Agreement is terminated pursuant to the terms hereof.
Upon the occurrence of any of the aforesaid events, this Agreement shall
be deemed to be terminated forthwith except in relation to such
obligations hereof as are expressly stated to survive the termination of this
Agreement and the rights and remedies of a PARTY in respect of any breach of
such surviving obligations and also any breach of any provision of this
Agreement occurring prior to the termination of this Agreement.
15. FORCE MAJEURE
Neither of the PARTIES shall be in default hereunder by reason of its delay
in the performance of or failure to perform any of its obligations hereunder if
such delay or failure is caused by any contingency beyond its reasonable
control, including, without limitation, war, restraints affecting shipping,
strikes, lockouts, fires, accidents, floods, droughts, natural calamities,
demand or requirements of any government or of any governmental subdivisions
thereof, restraining orders or decrees of any court or judge having
jurisdiction. If the event of a force majeure continues for a period of more
than 30 (Thirty) days, the PARTIES shall discuss efforts that each can
reasonably take to avoid or minimize the effect of said force majeure. If due to
an event of force majeure, for a period of 180 (One Hundred And Eighty) days,
either PARTY is deprived of a substantial benefit it reasonably anticipated
under this Agreement the PARTY so detrimentally impacted may terminate this
Agreement by written notice to the other PARTY.
In the event of such force majeure event, the PARTY prevented from
performing its obligations under this section shall promptly give written notice
to the other PARTY together with full details.
16. SEVERABILITY
Provided that if the invalidity or unenforceability shall not substantially
nullify the underlying intent of this Agreement and provided that the invalid or
enforceable provisions shall be severable, the invalidity or unenforceability of
any term or provision of this Agreement shall not affect the validity or
enforceability of the other terms or provisions herein contained which shall
remain in full force and effect.
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17. CORPORATE AUTHORITY
Within 7 (Seven) days from the date of this Agreement, each PARTY shall
deliver to the other PARTY, a copy (certified as true by its Director or Company
Secretary) of each of the following documents:-
17.1 its Certificate of Incorporation or other evidence of its
incorporation;
17.2 its By-Laws (in the case of MEMC) and its Memorandum & Articles of
Association in the case of KHAZANAH); and
17.3 an extract of the resolutions passed by its Directors authorising its
entry into and its execution of this Agreement.
18. MODIFICATIONS TO AGREEMENT & WAIVERS
18.1 Modifications in writing
Any modification of or alteration to any part of this Agreement, shall be
conferred upon and determined in writing by mutual consultation between the
PARTIES.
18.2 Delay or acquiescence
No failure or delay on the part of any PARTY in exercising any power or
right under this Agreement shall operate as a waiver of such power or right nor
shall the knowledge or acquiescence by any party hereto of or in a breach of any
terms or conditions of this Agreement constitute a waiver of such terms or
conditions.
18.3 Subsequent breaches not affected
No waiver by any party hereto of a breach of any term or condition of this
Agreement shall constitute a waiver of any subsequent breach of the same or any
other term or condition of this Agreement.
18.4 Waivers to be in writing
No waiver of any of the terms of this Agreement shall be valid unless in
writing and signed by or on behalf of the PARTIES.
19. ARBITRATION
19.1 Amicable resolution
If any dispute or controversy arises at any time out of or in relation to
this Agreement, the PARTIES shall seek to resolve the matter amicably through
discussions between the PARTIES. If the PARTIES fail to resolve such dispute or
controversy within 30 (Thirty) days by amicable arrangement and compromise or
when arbitration is otherwise provided for in this Agreement, the Claimant may
seek arbitration as set forth in this Clause 19.
19.2 Reference to arbitration
Any dispute or controversy arising out of or in relation to or in
connection with this Agreement which cannot be amicably resolved as provided in
Clause 19.1 may be referred by the Claimant to arbitration by a single
arbitrator pursuant to the Rules for Arbitration of the REGIONAL CENTRE FOR
ARBITRATION, KUALA LUMPUR then in force in accordance with the provisions of
this Clause 19.
Arbitration under this Clause 19 shall be the exclusive means for a PARTY
to seek resolution of any dispute or controversy arising out of, in relation to,
or in connection with this Agreement except that any PARTY in dispute may bring
an action before a court of competent jurisdiction for the adoption of
provisional or protective measures pending the final decision or award of the
arbitration.
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The single arbitrator shall be selected by agreement between the PARTIES
within 60 (Sixty) days from the date on which the Claimant's request for
arbitration is filed with the KLRAC pursuant to Clause 19.3 or, failing
agreement between the PARTIES, the KLRAC shall be the appointing authority. The
single arbitrator shall be a jurist (with qualifications and experience in a
common law jurisdiction) who is not a citizen of either the United States of
America or Malaysia.
The arbitration shall be conducted in Kuala Lumpur.
The arbitrators shall make every effort to find a solution to the dispute
in the provisions of this Agreement, giving full effect to all parts thereof.
However, if a solution cannot be found in the provisions of this Agreement, the
arbitrator shall apply the substantive law of Malaysia without regard to its
choice of law provisions. If there is any conflict between the Rules and this
Clause 19, the provisions of this Clause 19 shall govern.
19.3 Discovery
The Claimant shall file a request for arbitration with the KLRAC and notify
the Respondent in writing of the nature of the claim(s).
After a request for arbitration of any dispute subject to arbitration under
this Agreement has been filed, the PARTIES shall, upon request, make discovery
and disclosure of all materials relevant to the subject of the dispute. The
arbitrator shall make the final determination as to any discovery disputes
between the PARTIES. Examination of witnesses by the PARTIES and by the
arbitrator shall be permitted.
Following the selection of the arbitrator as set forth above, the
arbitration shall be conducted promptly and expeditiously so as to enable the
arbitrator (to the extent reasonably possible) to render a decision within 120
(One Hundred And Twenty) days after the arbitrator has been appointed.
19.4 Language of proceedings
Unless otherwise agreed by the PARTIES in dispute, the arbitration
proceedings shall be conducted in English.
19.5 Arbitral award
The award of the arbitrator shall be final and binding on the PARTIES in
dispute. Judgement on the arbitral award rendered may be entered in any court of
competent jurisdiction or application may be made to such court for a judicial
acceptance of the award and an order of enforcement, as the case may be.
In rendering the award, the arbitrator shall apply the terms and conditions
of this Agreement in accordance with the laws governing this Agreement. The
arbitrator shall state the reasons upon which the award is based and shall
determine how the reasonable expenses of the arbitration are to be borne by the
PARTIES in dispute.
Each PARTY hereby agrees that any judgement upon an award rendered by the
arbitration may be executed against the assets of each PARTY in any
jurisdiction.
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20. LAW OF AGREEMENT & JURISDICTION
This Agreement shall be construed and take effect under the laws of
Malaysia and, subject to the provisions of Clause 19, the PARTIES hereby submit
unconditionally to the non-exclusive jurisdiction of the courts in Malaysia.
21. NO AGENCY
None of the provisions herein shall be deemed to constitute an agency
between the PARTIES and none of the PARTIES shall have any authority to bind or
shall be deemed to be the agent of the other PARTIES for any purpose whatsoever.
22. LANGUAGE OF AGREEMENT
The rights and obligations of the PARTIES shall be construed in accordance
with the English version of this Agreement which shall be the authoritative
version of this Agreement notwithstanding any translation of the same into any
other language.
23. ENTIRETY OF AGREEMENT
This Agreement constitutes the entirety of the agreement between the
PARTIES in relation to the subject matter hereof and supercedes all negotiations
and prior agreements between the PARTIES in relation thereto including the
Memorandum of Understanding dated 27th September 1995.
24. NOTICES
24.1 Modes of service
All notices hereunder shall be in writing signed by the PARTY by whom it is
served or by its solicitors and shall be sufficiently served on the PARTY to
whom it is addressed if it is delivered by hand or courier at or sent by
pre-paid registered or certified post, telex or telefax (and confirmed
forthwith, in the case of a notice sent by telex or telefax, by the delivery by
hand or courier or by registered post of a copy of the notice) to the address
set forth below of the PARTY to whom it is sent or to such address as one PARTY
may from time to time notify to the other PARTY:-
24.1.1 to MEMC:-
President
MEMC ELECTRONIC MATERIALS INC
000, Xxxxx Xxxxx
Xxxx xx X'Xxxxxx
Xx. Xxxxxx, Xxxxxxxx
Xxxxxx Xxxxxx of America
Telefax: (000) 000 0000
24.1.2 to KHAZANAH:-
KHAZANAH NASIONAL BERHAD
00xx Xxxxx, Xxxxx Xxxxx
Xxxxx Xxxxx
000 Xxxxx Xxxxx
00000 Xxxxx Xxxxxx
Telefax: (000) 000 0000
24.2 Time of service
A notice sent:-
24.2.1 by telex or telefax (and confirmed by the delivery of a
copy thereof by hand or by registered post) shall be deemed to have
been served at the time (in the place of the receipt thereof) when the
transmission by telex or telefax is completed provided in the case of
a notice sent by telex, the sender receives at the end of the
transmission, the answer back code and telex number of the addressee
of such notice; or
24.2.2 by registered post shall be deemed to have been served on
the 7th (Seventh) day occurring after the date on which it is posted;
or
24.2.3 by hand to any address shall be deemed to have been served
at the time it is left at such address; or
24.2.4 by courier shall be deemed to have been served on the 7th
(Seventh) day occurring after the date on which it is given to the
courier company.
Notwithstanding the foregoing provisions, if the time or day hereinbefore
referred to shall not be a business day (when banks are open for business) in
the place of the receipt of the notice given, such notice shall be deemed to be
received on the next immediately following business day.
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25. COSTS
25.1 Agreement
Each of the PARTIES shall bear its own solicitors' costs and other expenses
related to this Agreement. MEMC shall bear the stamp duty on this Agreement.
25.2 Sale of JVC Shares
The stamp duty payable on any transfer of JVC Shares shall be borne by the
transferee thereof. The stamp duty and other disbursements, if any, chargeable
on the transfers of JVC Shares sold and purchased pursuant to an Offer shall be
borne by the purchaser thereof.
26. NON-ASSIGNABILITY
Neither PARTY may assign its rights hereunder or any interest herein or
transfer its obligations hereunder to any person, firm or company without the
prior written consent of the other PARTY.
27. SUCCESSORS-IN-TITLE
This Agreement is binding upon the respective successors-in-title and
permitted assigns of the PARTIES.
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IN WITNESS WHEREOF the PARTIES have by their respective officers duly
authorised hereunto set their hands the day and year first above written.
SIGNED by ) /s/ Xxxxxx X. Xxxxxxxx
) President and Chief Operating
for and on behalf of ) Officer
MEMC ELECTRONIC MATERIALS )
INC, MEMC aforesaid in the presence of:- )
/s/ Xxxxxx X. Xxxxxxxx
Corporate Vice President,
General Counsel & Secretary
SIGNED by ) /s/ Tan Sri Dato' Mohd. Sheriff Bin
) Mohd. Kassim
for and on behalf of ) Managing Director
KHAZANAH NASIONAL BERHAD )
KHAZANAH aforesaid in the presence of:- )
/s/ Xxxxxx Xxxxxx
Company Secretary/Legal Advisor
