CONFIDENTIAL TREATMENT REQUESTED
SECOND AMENDMENT TO
SHAREHOLDERS' AGREEMENT
This SECOND AMENDMENT TO SHAREHOLDERS' AGREEMENT (the "Second Amendment")
is dated as of April 1, 2000, by and among TEXAS INSTRUMENTS INCORPORATED, a
Delaware corporation ("TI"), MEMC ELECTRONIC MATERIALS, INC., a Delaware
corporation ("MEMC"), and MEMC SOUTHWEST INC., a Delaware corporation ("NUCO").
All terms used herein, unless otherwise defined, shall have the same meanings
ascribed to them in the Agreement (as defined below).
Recitals
WHEREAS, TI and MEMC made and entered into that certain Shareholders'
Agreement dated as of May 16, 1995, which was accepted and ratified by NUCO on
May 30, 1995, and amended by all parties on April 20, 1999 (the "Agreement");
WHEREAS, TI, MEMC and NUCO wish to amend the Agreement, along with the TI
Purchase Agreement, the Lease and the Sublease, for reasons stated in the First
Amendment to the TI Purchase Agreement ("First TI Purchase Amendment"); and
WHEREAS, Article 34 of the Agreement allows the Agreement to be amended
with the written consent of TI, MEMC and NUCO.
NOW, THEREFORE, the parties agree as follows:
1. Section 11.02(a)(iii) of the Agreement is deleted in its entirety and the
following is substituted in lieu thereof:
"(iii) restrict TI from practicing first level epi deposition at TI on
Existing Products (as defined in the First TI Purchase Amendment), in a
volume not to exceed [CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED
SEPARATELY WITH SEC] per calendar quarter through 2003, after which date
first level epi deposition by TI on Existing Products will not exceed
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC]"
2. The following is added to Section 11.02(a) immediately preceding the last
sentence thereof:
"MEMC may elect at its expense to have TI's wafer purchase records
audited by an independent third party acceptable to both parties to confirm
the volumes set forth in (iii) above. In the event TI acquires 200mm epi
reactors for the purpose of applying second level epi and subsequently has
excess capacity, TI has the right to utilize these reactors for
[CONFIDENTIAL MATERIAL HAS BEEN DELETED AND FILED SEPARATELY WITH SEC]
first level epi deposition on products other than Existing Products. In
addition, if TI contemplates developing capacity for first level epi
deposition on products other than Existing Products, MEMC and TI will
negotiate in good faith a plan determining the method and timing in which
TI may deposit first level epi on such other products."
3. MEMC and TI agree that they will cause their representatives on the NUCO
Board of Directors to approve and/or ratify this Second Amendment, the
First TI Purchase Amendment and the amendments to the Lease and Sublease
referenced in the second "Whereas" clause above. MEMC and TI further agree
that the implementation of such amendments will be regularly reviewed by
the NUCO Board of Directors at their meetings.
4. Except as specifically amended by this Second Amendment, all provisions of
the Agreement shall remain effective and binding. This Amendment, together
with the Agreement, constitutes the entire agreement between the Parties
relating to the subject matter hereof and supersedes all prior agreement,
oral or written, and all other communications between the Parties.
5. This Amendment shall be governed by the laws of the state of Texas, without
regard to any conflicts of law principles that may require the application
of the laws of any other jurisdiction.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
<PAGE>
IN WITNESS WHEREOF, the parties have executed this Second Amendment as of
the date first above written and the terms herein shall be effective as of that
date.
TEXAS INSTRUMENTS INCORPORATED MEMC ELECTRONIC MATERIALS, INC.
By: /s/ K. Balasubramanian By: /s/ Klaus R. von Horde
----------------------------- -----------------------------
Name: K. Balasubramanian Name: Klaus R. von Horde
Title: Senior Vice President Title: President and Chief Executive
Officer
MEMC SOUTHWEST INC.
By: /s/ James Lang
-----------------------------
Name: James Lang
Title: President
