SHARE SALE AND PURCHASE AGREEMENT
This SHARE SALE AND PURCHASE AGREEMENT (the "Agreement") is entered into this
7th day of September, 2000, by and between:
MEMC ELECTRONIC MATERIALS, INC., a corporation organized and existing under the
laws of the State of Delaware, U. S. A. and having its principle office at 501
Pearl Drive, St. Peters, Missouri 63376, U. S. A. ("MEMC"); and
POHANG IRON & STEEL CO., LTD., a corporation organized and existing under the
laws of the Republic of Korea and having its principle office at 1, Koedong,
Pohang, Kyungsangbuk-do, Korea ("POSCO").
RECITALS
WHEREAS, POSCO owns 6,880,000 shares of common stock of POSCO HULS CO., LTD., a
corporation organized and existing under the laws of the Republic of Korea (the
"Company"), having a par value of five thousand (5,000) Korean Won per share
(the "Shares"), which comprises forty percent (40%) of all issued and
outstanding shares of stock of the Company;
WHEREAS, pursuant to Article 7.3 of the Joint Venture Agreement dated August 28,
1990 entered into by and among POSCO, MEMC and Samsung Electronics Co., Ltd.
("Samsung"), as amended by the First Amendment to Joint Venture Agreement dated
as of December 9, 1993 and the Second Amendment to Joint Venture Agreement dated
as of December 30, 1994 (as amended, the "Joint Venture Agreement"), POSCO had
offered to MEMC and Samsung to sell and transfer all of the Shares;
WHEREAS, Samsung notified POSCO of its intention to waive its right to purchase
the Shares in proportion to its shareholding ratio in the Company;
WHEREAS, MEMC wishes to purchase from POSCO all of the Shares subject to the
terms and based on the conditions set forth herein.
NOW, THEREFORE, in consideration of the mutual promises and covenants contained
herein and for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, POSCO and MEMC agree as follows:
Article 1 Definitions
As used in this Agreement, the following terms shall have the following
meanings:
"Business Day" means a day other than (i) a Saturday or Sunday or (ii) a day on
which banking institutions are authorized or required by law or executive order
to remain closed in the domicile of MEMC or POSCO.
"Closing" means the consummation of the transactions contemplated by this
Agreement in accordance with the provisions of Article 3.
"Consents" means all of the consents, permits or approvals of Governmental
Authorities and other persons or entities necessary or required to consummate
the transactions contemplated hereby.
"Governmental Authority" means (i) the Republic of Korea, any state, territory,
or possession thereof and any political subdivision, including but not limited
to courts, tribunals, departments, commissions, boards, bureaus, agencies,
municipalities, provinces, and other instrumentalities, and (ii) any foreign (as
to the Republic of Korea) sovereign entity, including but not limited to
nations, states, republics, kingdoms and principalities, any province,
commonwealth, territory or possession thereof, and any political subdivision, or
instrumentality of any of the same.
"Legal Requirements" means applicable common law and any applicable statute,
ordinance, code or other law, rule, regulation, order, technical or other
standard, requirement or procedure enacted, adopted, promulgated or applied by
any Governmental Authority, including any judgment.
"Lien" means any security agreement, financing statement filed with any
Governmental Authority, conditional sale or other title retention agreement, any
lease, consignment or bailment given for the purpose of security, any lien,
mortgage, indenture, pledge, option, encumbrance, restriction on transfer,
adverse interest, constructive trust or other trust, claim, attachment,
exception to or defect in title or other ownership interest (including but not
limited to reservations, rights of entry, possibilities of reverter,
encroachments, easements, rights-of-way, restrictive covenants, leases and
licenses) of any kind, which otherwise constitutes an interest in or claim
against property, whether arising pursuant to any Legal Requirement, contract or
otherwise.
"Losses" means any litigation, losses, liabilities, damages, Liens, penalties,
costs, fines and expenses, including but not limited to interest which may be
imposed in connection therewith, expenses of investigation, reasonable fees and
disbursements of counsel and other experts, and the cost to any person or entity
making a claim or seeking indemnification under this Agreement with respect to
funds expended by such person or entity by reason of the occurrence of any event
with respect to which indemnification is sought.
Article 2 Terms of Purchase and Sale
2.1 Subject to the terms and conditions hereof, POSCO shall sell, transfer and
deliver to MEMC, free and clear of all Liens, all of the Shares on the
Closing Date, and MEMC shall purchase the Shares from POSCO at the Purchase
Price.
2.2 The aggregate purchase price for the Shares is Seventy Six Billion Korean
Won (KRW76,000,000,000) (the "Purchase Price").
Article 3 Closing
3.1 The Closing shall take place at the offices of POSCO in Seoul, Korea, or
any other mutually agreed upon location, at 2:00 p.m. Korean time on
September 29, 2000 (the "Closing Date"), or any other mutually agreed upon
time; provided, however that the Closing Date shall not be later than the
15th day of October, 2000.
3.2 Subject to Article 3.6, on the Closing Date, MEMC shall pay Fifty Billion
(50,000,000,000) Korean Won of the Purchase Price to POSCO by wire transfer
of immediately available funds to an account designated by POSCO. The
remaining balance of the Purchase Price shall be paid to POSCO by MEMC in
accordance with the payment schedule as specified in Article 3.6 hereof.
3.3 On the Closing Date, MEMC shall deliver to POSCO the following, in form and
substance reasonably satisfactory to POSCO and its counsel:
(a) A certificate, dated as of the Closing Date, executed by a duly
authorized officer of MEMC, certifying that (i) the resolutions, as
attached to such certificate, were duly adopted by MEMC's Board of
Directors, authorizing and approving the execution of this Agreement
and the consummation of the transactions contemplated hereby and that
such resolutions remain in full force and effect and have not been
modified or amended, (ii) the representations and warranties of MEMC
contained in Article 5.1 hereof are true in all respects as of the
Closing Date as if made at and as of such date, and (iii) all other
obligations of MEMC hereunder which should be performed on or prior to
the Closing Date have been performed or complied with; and
(b) Such other documents and instruments as shall be reasonably necessary
to effect the intent of this Agreement and consummate the transactions
contemplated by this Agreement.
3.4 On the Closing Date, POSCO shall deliver to MEMC the following, in form and
substance reasonably satisfactory to MEMC and its counsel:
(a) A certificate or certificates for all of the Shares, duly endorsed or
accompanied by an appropriate duly executed stock power in form
sufficient to permit transfer of the Shares to MEMC;
(b) A certificate, dated as of the Closing Date, executed by a duly
authorized representative of POSCO, certifying that (i) the
resolutions, as attached to such certificate, were duly adopted by
POSCO's Board of Directors, authorizing and approving the execution of
this Agreement and the consummation of the transactions contemplated
hereby and that such resolution remain in full force and effect and
have not been modified or amended, (ii) the representations and
warranties of POSCO contained in Article 5.2 hereof are true in all
respects as of the Closing Date as if made at and as of such date, and
(iii) all other obligations of POSCO hereunder which should be
performed on or prior to the Closing Date have been performed or
complied with; and
(c) Such other documents and instruments as shall be reasonably necessary
to effect the intent of this Agreement and consummate the transactions
contemplated by this Agreement.
3.5 On or immediately after the Closing Date, MEMC shall apply for a change in
the shareholders' registry to reflect the share transfer transaction
contemplated hereunder and provide to POSCO certified evidence of such
change in registration.
3.6 The remaining balance of the Purchase Price shall be paid as follows:
(a) On September 29, 2001, Thirteen Billion (13,000,000,000) Korean Won
and interests on the total amount of the remaining balance of the
Purchase Price (Twenty Six Billion Korean Won) from the date following
the Closing Date up to September 29, 2001 shall be paid to POSCO by
wire transfer of immediately available funds to an account designated
by POSCO. The interest rate shall be seven and one half percent (7.5%)
per annum; and
(b) On September 29, 2002, Thirteen Billion (13,000,000,000) Korean Won
and interests on the total amount of the remaining balance of the
Purchase Price (Thirteen Billion Korean Won) from Septmeber 30, 2001
up to September 29, 2002 shall be paid to POSCO by wire transfer of
immediately available funds to an account designated by POSCO. The
interest rate shall be seven and one half percent (7.5%) per annum.
(c) In the event any of the dates specified above is not a Business Day,
each payment shall be made on the first Business Day immediately
preceding such date.
3.7 To guarantee punctual payment of the remaining balance of the Purchase
Price in accordance with Article 3.6 hereabove, MEMC shall provide, on the
Closing Date, guarantee issued by an internationally recognized financial
institution for the amount of such remaining balance. Notwithstanding the
foregoing in Articles 3.2, 3.6 and 3.7, MEMC shall have the option of
paying the total amount of the Purchase Price on the Closing Date by wire
transfer of immediately available funds to an account designated by POSCO.
Article 4 Conditions to Completion
The obligations of POSCO to sell the Shares and the obligations of MEMC to
purchase the Shares and effect the Closing shall be subject to the obtaining of,
or the satisfaction or waiver by MEMC or POSCO, as the case may be, on or prior
to the Closing Date of all of the following conditions:
(a) The issuance of an acceptance by a foreign exchange bank designated by
the Ministry of Commerce, Industry and Energy of the Republic of Korea
("MOCIE") of the share transfer report to be filed by MEMC in
connection with the purchase of the Shares;
(b) All representations and warranties of the parties contained in this
Agreement having been true when made and being true in all respects at
and as of the Closing Date as if such representations and warranties
were made at and as of such date;
(c) All other obligations of MEMC and POSCO under this Agreement which
should be performed on or prior to the Closing Date having been
performed or complied with or otherwise waived, including the tender
of all of the closing deliveries required by Articles 3.3 and 3.4;
(d) All Government Consents necessary for the consummation of the
transactions contemplated by this Agreement and the performance of the
parties' obligations contained herein shall have been obtained and be
in full force and effect; and
(e) No action or proceeding shall have been instituted or threatened
before any court or other governmental body or by any public authority
seeking to restrain or prohibit the sale and purchase of the Shares
hereunder.
Article 5 Representations and Warranties
5.1 MEMC hereby makes the following representations and warranties to POSCO,
each of which is true and correct on the date hereof and shall be true and
correct on the Closing Date, and each of which shall survive the Closing
Date and the sale contemplated herein:
(a) It is a corporation duly organized, existing and in good standing
under the laws of the State of Delaware, USA, and has all requisite
corporate power and authority to execute and deliver this Agreement
and any other documents required to be executed and delivered
hereunder and to perform its obligations hereunder. In the event MEMC
assigns its rights and obligations hereunder to a subsidiary, as
provided in Article 10.2, such subsidiary will be an entity duly
organized, validly existing and in good standing under the laws of its
jurisdiction of organization, and such subsidiary will have all
requisite entity power and authority to execute and deliver the
assignment and any documents required to be executed and delivered
hereunder and to perform its obligations hereunder.
(b) This Agreement has been duly and validly authorized, executed and
delivered by MEMC and constitutes the legal, valid and binding
obligation of MEMC, enforceable against MEMC in accordance with its
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally or (ii) general principles of equity. In
the event that MEMC assigns its rights and obligations hereunder to a
subsidiary, as provided in Article 10.2, such assignment will have
been duly and validly authorized, executed and delivered by such
subsidiary and this Agreement will constitute the legal, valid and
binding obligation of such subsidiary, enforceable against such
subsidiary in accordance with its terms, except as such enforceability
may be limited by (i) bankruptcy, insolvency or other similar laws
affecting the enforcement of creditors' rights generally or (ii)
general principles of equity.
(c) The execution, delivery and performance by MEMC of this Agreement will
not (i) violate or conflict with its certificate of incorporation and
by-laws or other organizational documents, (ii) violate or conflict
with any law, or (iii) result in any material breach of, or constitute
a material default under any contract to which it is a party which
breach or default would have a material adverse effect on MEMC and its
subsidiaries, taken as a whole. In the event that MEMC assigns its
rights and obligations to a subsidiary as provided in Article 10.2,
the execution and delivery by such subsidiary of such assignment and
the performance by such subsidiary of this Agreement will not (i)
violate or conflict with its articles of organization and by-laws or
other organizational documents, (ii) violate or conflict with any law,
or (iii) result in any material breach of, or constitute a material
default under any contract to which it is a party which breach or
default would have a material adverse effect on MEMC and its
subsidiaries, taken as a whole.
(d) To the best of its knowledge, the execution, delivery and performance
by MEMC (or by any subsidiary to which MEMC assigns its rights and
obligations under this Agreement as provided in Article 10.2) of this
Agreement do not and will not require any Consent other than described
in Article 4(a);
5.2 POSCO hereby makes the following representations and warranties to MEMC,
each of which is true and correct on the date hereof and shall be true and
correct on the Closing Date, and each of which shall survive the Closing
Date and the sale contemplated herein:
(a) It is a corporation duly organized, existing and in good standing
under the laws of the Republic of Korea, and has all requisite
corporate power and authority to execute and deliver this Agreement
and any other documents required to be executed and delivered
hereunder and to perform its obligations hereunder.
(b) This Agreement has been duly and validly authorized, executed and
delivered by POSCO and constitutes the legal, valid and binding
obligation of POSCO, enforceable against POSCO in accordance with its
terms, except as such enforceability may be limited by (i) bankruptcy,
insolvency or other similar laws affecting the enforcement of
creditors' rights generally or (ii) general principles of equity.
(c) The execution, delivery and performance by POSCO of this Agreement
will not (i) violate or conflict with its articles of incorporation or
other organizational documents, (ii) violate or conflict with any law,
or (iii) result in any material breach of, or constitute a material
default under any contract to which it is a party which breach or
default would have a material adverse effect on POSCO and its
subsidiaries, taken as a whole.
(d) To the best of its knowledge, the execution, delivery and performance
by POSCO of this Agreement do not and will not require any Consent
other than described in Article 4(a).
(e) It is the legal owner of the Shares and has full authority to sell and
transfer the Shares as provided herein.
(f) The Shares represent the entire interest of POSCO in the issued share
capital of the Company and MEMC will acquire at the Closing good and
marketable title to the Shares, free and clear of all Liens.
(g) No outstanding claim of POSCO exists or to the best of its knowledge,
is likely to exist, against the Company arising out of or in relation
to the Joint Venture Agreement, its past ownership of the shares of
the Company or conduct of its past business transactions with the
Company in connection therewith.
Article 6 Additional Obligations
6.1 Each of MEMC and POSCO shall use its commercially reasonable efforts to
obtain all Government Consents otherwise to effect or obtain any notice to
or consents from third parties, required for the transactions contemplated
hereunder.
6.2 Each of MEMC and POSCO shall use its commercially reasonable efforts to
take, or cause to be taken, all such action, and execute and deliver all
such documents, as may be necessary to consummate the transactions
contemplated hereunder.
6.3 On and after the Closing Date, POSCO shall not seek to exercise its
remaining rights, if any, under the Joint Venture Agreement without the
prior written consent of MEMC. If requested by MEMC, POSCO (a) will
exercise any remaining rights under the Joint Venture Agreement in
accordance with MEMC's instructions and (b) will take all such action, and
execute and deliver such documents, as may be necessary (i) to terminate
the Joint Venture Agreement or (ii) to convey POSCO's remaining rights, if
any, under the Joint Venture Agreement to MEMC.
6.4 POSCO covenants and agrees that between the date of this Agreement and the
Closing Date, it will not cause the Company to conduct its business
otherwise than in the ordinary course and consistent with the Company's
past practices.
6.5 POSCO hereby waives, and releases the Company from, any and all future
demands and claims against the Company, contingent or otherwise, which may
be made by POSCO in connection with the Joint Venture Agreement, its
ownership of the shares of the Company or conduct of its past business
transactions with the Company.
6.6 As of the Closing Date, MEMC confirms that POSCO will cease to be a
shareholder of the Company and MEMC will not, on and after the Closing
Date, make any demands or claims against POSCO as a shareholder of the
Company.
6.7 In the event this Agreement is terminated or the Closing fails to occur by
the Closing Date due to reasons attributable to MEMC other than those
beyond reasonable control of MEMC (i.e, force majeure), then MEMC shall
waive any claims it may have against POSCO under the Joint Venture
Agreement in connection with POSCO's subsequent sale of the Shares to any
third party.
Article 7 Indemnification
7.1 MEMC hereby agrees to indemnify and hold POSCO harmless from and against
any Loss suffered or incurred by POSCO for or on account of or arising from
or in connection with any breach of any of the representations, warranties
or covenants contained in this Agreement, provided, however, that MEMC
shall not have any liability under this Article 7.1 unless the aggregate of
all Losses relating thereto exceed on a cumulative basis Two Hundred
Million (200,000,000) Korean Won, and then only to the extent of such
excess and MEMC's maximum liability hereunder is expressly limited to the
Purchase Price. POSCO acknowledges and agrees that its sole and exclusive
remedy with respect to any and all claims for monetary damages relating to
the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Article 7.1.
7.2 POSCO hereby agrees to indemnify and hold MEMC harmless from and against
any Loss suffered or incurred by MEMC for or on account of or arising from
or in connection with any breach of any of the representations, warranties
or covenants contained in this Agreement, provided, however, that POSCO
shall not have any liability under this Article 7.2 unless the aggregate of
all Losses relating thereto exceed on a cumulative basis Two Hundred
Million (200,000,000) Korean Won, and then only to the extent of such
excess and POSCO's maximum liability hereunder is expressly limited to the
Purchase Price. MEMC acknowledges and agrees that its sole and exclusive
remedy with respect to any and all claims for monetary damages relating to
the subject matter of this Agreement shall be pursuant to the
indemnification provisions set forth in this Article 7.2.
7.3 The representations and warranties made by each party contained in Article
5 hereof, and indemnification pursuant to Article 7 hereof, shall survive
the Closing indefinitely.
Article 8 Dispute Resolution and Arbitration
8.1 The parties shall attempt in good faith to resolve any controversy, dispute
or claim arising out of or relating to this Agreement or the breach,
termination, enforceability or validity thereof (collectively, a "Dispute")
promptly by negotiation between officers or employees who have authority to
settle the Dispute. Either party may give the other a written notice (a
"Dispute Notice") setting forth with reasonable specificity the nature of
the Dispute and the identity of such party's representatives who will
attend and participate in the meeting at which the parties will attempt to
settle the Dispute. Following the receipt of a Dispute Notice, the
representatives of both parties shall meet as soon as is practicable at a
mutually acceptable time and place to negotiate in good faith a settlement
of the Dispute, and shall meet thereafter as they reasonably deem
necessary. All negotiations pursuant to this Article 8.1 shall be
confidential and shall be treated as compromise and settlement
negotiations. Nothing said or disclosed, nor any document produced, in the
course of such negotiations which is not otherwise independently
discoverable shall be offered or received as evidence or used for
impeachment or for any other purpose in any current or future arbitration
or litigation.
8.2 If the Dispute has not been resolved within 30 days after the receipt of a
Dispute Notice through negotiation as provided in Article 8.1, then the
Dispute shall be finally settled by arbitration pursuant to the U.S.-Korean
Commercial Arbitration Agreement, dated December 1, 1974, by which each
party is bound. The arbitration shall be held in Seoul, Korea, if the case
is brought against POSCO and in St. Louis, Missouri, U. S. A. if the case
is brought against MEMC, unless the parties mutually agree to have the
arbitration held elsewhere, and judgment upon the award made therein may be
entered by any court having jurisdiction over any of the parties to this
Agreement; provided, however, that nothing contained in the Article 8 shall
be construed to limit or preclude a party from bringing any action in any
court of competent jurisdiction for injunctive or other provisional relief
to compel another party to comply with its obligations under this Agreement
during the pendency of the arbitration proceedings. The arbitrator shall
have the authority to grant any equitable and legal remedies that would be
available in any judicial proceeding instituted to resolve any claim
hereunder.
Article 9 Termination
This Agreement may be terminated at any time prior to the Closing:
(a) By mutual written agreement of all the Parties;
(b) By MEMC, by ten (10) Business Days prior written notice to POSCO (if
MEMC is not then materially in default or breach of this Agreement) if
POSCO shall default or be in material breach in the performance of any
of its obligations under this Agreement, and such default or breach
has not been cured by POSCO within seven (7) Business Days following
the receipt of written notice from MEMC of MEMC's intention to
terminate this Agreement;
(c) By POSCO, by ten (10) Business Days prior written notice to MEMC (if
POSCO is not then materially in default or breach of this Agreement)
if MEMC shall default or be in material breach in the performance of
any of its obligations under this Agreement, and such default or
breach has not been cured by MEMC within seven (7) Business Days
following the receipt of written notice from POSCO of POSCO's
intention to terminate this Agreement;
(d) By MEMC in the event of a material adverse change in the financial
condition or prospects of the Company or a material adverse loss or
damage to or condemnation of the property or assets of the Company;
and
(e) By either MEMC or POSCO if the Closing shall not have occurred by
October 15, 2000 (or such other date mutually agreed upon by the
parties in writing); provided, however, that this Agreement may not be
terminated under this paragraph (d) by a party if the failure of the
Closing to occur by such date shall have resulted from the such
party's failure to fulfill any obligation under this Agreement.
Article 10. Miscellaneous
10.1 Confidentiality. Prior to the Closing Date, neither party (a) will disclose
to any other person or entity the existence of this Agreement, or any of
the terms, conditions or other facts of this Agreement or the transaction
contemplated hereby, including the status thereof, or (b) make any public
disclosure or publicity release pertaining to the transaction contemplated
hereby or the existence of this Agreement, without the prior written
consent of the other party. However, each party is permitted to make such
disclosures to the public or to governmental agencies as are deemed
necessary to maintain compliance with and to prevent violations of
applicable laws and regulations or the rules of any stock exchange on which
the securities of a party (or a majority stockholder of a party) may be
listed, so long as the party notifies the other party in writing and
furnishes the other party with a copy of any such proposed disclosure. In
addition, the parties understand that certain disclosures regarding this
Agreement and the transaction contemplated hereby must be made to parties
whose consent or approval may be required in connection with such
transaction. The parties agree that such disclosures may be made without
any prior consent or notification. In addition, each party may disclose
this Agreement and the transaction contemplated hereby to its accountants,
attorneys, lenders and majority stockholders provided such parties agree to
keep the information confidential as provided in this Article 10.1.
10.2 Assignment; Binding Agreement.
(a) This Agreement and all or any part of MEMC's rights and obligations
hereunder may be assigned by MEMC at any time to any one or more
direct or indirect subsidiary(ies) of MEMC provided that MEMC shall
remain liable to POSCO for the performance of such subsidiary(ies) of
the obligations set forth in this Agreement. MEMC shall cause such
subsidiary(ies) to perform any of MEMC's obligations hereunder which
are assigned to such subsidiary(ies).
(b) Except as provided in paragraph (a) above, neither this Agreement nor
any rights or obligations hereunder may be assigned by either party
without the prior written consent of the other party.
(c) This Agreement shall be binding upon and shall inure to the benefit of
the parties hereto and to their respective heirs, successors and
permitted assignees.
10.3 Amendments. This Agreement may be amended only in writing signed by duly
authorized representatives of all the parties.
10.4 Waiver. No waiver of this Agreement by a party may be claimed against such
party unless in writing signed by such party. No delay on the part of any
party in exercising any right, power or privilege hereunder shall operate
as a waiver thereof, nor shall any waiver on the part of any party of any
such right, power or privilege preclude any further exercise thereof or the
exercise of any other such right, power or privilege.
10.5 Entire Agreement. This Agreement constitutes the entire agreement between
the parties pertaining to the subject matter hereof, merge all prior
negotiations and drafts of the parties with regard to the transactions
contemplated herein, and supersede any and all other written or oral
understandings or agreements between the parties regarding such
transactions.
10.6 Severability. If any provision of this Agreement shall be determined to be
unenforceable by any court or other governmental entity, the remaining
provisions shall be severable and enforceable in accordance with their
terms.
10.7 Counterparts. This Agreement may be executed in one or more identical
counterparts, each of which shall be deemed an original but all of which
together will constitute one and the same instrument.
10.8 Headings; Interpretation. The Article headings contained in this Agreement
are inserted for convenience only and shall not affect in any way the
meaning or interpretation of the Agreement.
10.9 Specific Performance. The parties agree that irreparable damage would occur
in the event any provisions of this Agreement is not performed in
accordance with the terms or is otherwise breached, and that the parties
shall be entitled to specific performance of the terms hereof in any court
of competent jurisdiction, in addition to any other remedy at law or
equity.
10.10No Third Party Beneficiaries. No provision of this Agreement, express or
implied, is intended or shall be construed to confer upon or give to any
person other than the parties any rights, remedies or other benefits under
or by reason of this Agreement, unless specifically provided otherwise
herein.
10.11Notices. All written notices, requests, demands and other communications
under this Agreement shall be given by letter (delivered by hand, air
courier or registered air mail) or by cable, telex, or facsimile
transmission confirmed by such a letter, which shall be addressed to the
respective party as follows, or to such other coordinates as such party
shall have designated by written notice to the other party:
To: MEMC
MEMC Electronic Materials, Inc.
501 Pearl Drive (City of O'Fallon)
P.O. Box 8 St. Peters, MO 63376-0008
Attention: Chief Executive Officer
Fax: 1-636-474-5158
Telephone: 1-636-474-5000
To: POSCO
Pohang Iron & Steel Co., Ltd.
POSCO Center, 892, Daechi-4dong, Kangnam-gu
Seoul, 135-777, Korea
Attention: Executive Vice President
Fax: 82-2-3457-1914
Telephone: 82-2-3457-0058
10.12Governing Law. This Agreement shall be governed, and construed and
interpreted in accordance with, the laws of the Republic of Korea, without
giving effect to its conflict of laws principles.
IN WITNESS WHEREOF, the parties have caused their duly authorized
representatives to execute this Agreement on the date first written above.
MEMC Electronic Materials, Inc. Pohang Iron & Steel Co., Ltd.
/s/ Klaus R. von Horde /s/ Ku-Taek Lee
-------------------------- -----------------------------
Name: Klaus R. von Horde Name: Ku-Taek Lee
Title: President & CEO Title: President & CEO
