<PAGE>
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM 10-Q
X Quarterly Report Pursuant to Section 13 or 15(d) of the Securities
- ----- Exchange Act of 1934
For the Quarterly Period Ended March 31, 1996
---------------------------------------------
or
- ----- Transition Report Pursuant to Section 13 or 15(d) of the Securities
Exchange Act of 1934
For the transition period from to
------- -------
Commission File No. 0-8866
MICROSEMI CORPORATION
------------------------------------------------------
(Exact name of registrant as specified in its charter)
Delaware 95-2110371
------------------------------- ----------------
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
2830 South Fairview Street, Santa Ana, California 92704
-------------------------------------------------------
(Address of principal executive offices) (Zip Code)
(714) 979-8220
----------------------------------------------------
(Registrant's telephone number, including area code)
Indicate by check mark whether the registrant (1) has filed all reports required
to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during
the preceding 12 month period (or for such shorter period that the registrant
was required to file such reports), and (2) has been subject to such filing
requirements for the past 90 days. Yes X No
----- -----
The number of shares outstanding of the issuer's Common Stock, $.20 par value,
on April 16, 1996 was 7,825,659.
<PAGE>
PART I - FINANCIAL INFORMATION
Item 1. FINANCIAL STATEMENTS
The unaudited consolidated financial information for the quarter and
six months ended March 31, 1996 of Microsemi Corporation and Subsidiaries (the
"Company") and the comparative unaudited consolidated financial information for
the corresponding periods of the prior year, together with the balance sheet as
of October 1, 1995 are attached hereto and incorporated herein by this
reference.
<PAGE>
<TABLE>
MICROSEMI CORPORATION AND SUBSIDIARIES
Consolidated Balance Sheets
(amounts in 000's)
<CAPTION>
March 31, 1996 October 1, 1995
-------------- ---------------
(Unaudited) (Audited)
<S> <C> <C>
ASSETS
Current assets
Cash and cash equivalents $ 3,241 $ 3,965
Accounts receivable less allowance for doubtful accounts of
$2,492 at March 31, 1996 and $2,018 at October 1, 1995 22,392 20,191
Inventories 46,567 43,281
Deferred income taxes 5,471 5,471
Other current assets 2,826 4,375
------- -------
Total current assets 80,497 77,283
------- -------
Property and equipment, at cost 54,945 52,044
Less: Accumulated depreciation (30,342) (28,442)
------- -------
24,603 23,602
------- -------
Deferred income taxes 569 569
------- -------
Other assets 3,220 3,361
------- -------
$ 108,889 $ 104,815
======= =======
</TABLE>
<TABLE>
<CAPTION>
LIABILITIES AND STOCKHOLDERS' EQUITY
<S> <C> <C>
Current liabilities
Notes payable to banks and others $ 6,074 $ 4,561
Current maturities of long-term debt 1,878 2,328
Accounts payable and accrued liabilities 21,439 19,952
Income taxes payable 3,227 4,016
Deferred income taxes 712 712
------- -------
Total current liabilities 33,330 31,569
------- -------
Deferred income taxes 1,864 1,864
------- -------
Long-term debt 47,106 48,158
------- -------
Other long-term liabilities 2,193 2,114
------- -------
Stockholders' equity
Common stock, $.20 par value; authorized 20,000 shares; issued
7,824 shares at March 31, 1996 and 7,789 shares at October 1, 1995 1,564 1,558
Paid-in capital 14,718 14,644
Retained earnings 8,114 4,908
------- -------
Total stockholders' equity 24,396 21,110
------- -------
$ 108,889 $ 104,815
======= =======
<FN>
See accompanying Notes to Unaudited Consolidated Financial Statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
MICROSEMI CORPORATION AND SUBSIDIARIES
Unaudited Consolidated Statements of Operations
(amounts in 000's, except earnings per share)
<CAPTION>
13 Weeks Ended 13 Weeks Ended
March 31, 1996 April 2, 1995
-------------- --------------
<S> <C> <C>
Net sales $ 39,107 $ 32,441
Cost of sales 28,798 24,327
------ ------
Gross profit 10,309 8,114
------ ------
Operating expenses
Selling 2,289 1,983
General and administrative 3,563 2,639
Amortization of goodwill and other intangible assets 55 44
------ ------
Total operating expenses 5,907 4,666
------ ------
Income from operations 4,402 3,448
------ ------
Other income (expense)
Interest expense (net) (1,184) (1,342)
Other (67) 68
------ ------
Total other expense (1,251) (1,274)
------ ------
Income before income taxes 3,151 2,174
Provision for income taxes 1,323 826
------ ------
Net income $ 1,828 $ 1,348
====== ======
Earnings per share
- Primary $ .22 $ 0.17
====== ======
- Fully diluted $ .18 $ 0.15
====== ======
Common and common equivalent shares outstanding
- Primary 8,232 7,993
- Fully diluted 11,755 11,573
<FN>
See accompanying Notes to Unaudited Consolidated Financial Statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
MICROSEMI CORPORATION AND SUBSIDIARIES
Unaudited Consolidated Statements of Operations
(amounts in 000's, except earnings per share)
<CAPTION>
26 Weeks Ended 26 Weeks Ended
March 31, 1996 April 2, 1995
-------------- --------------
<S> <C> <C>
Net sales $ 74,406 $ 60,098
Cost of sales 54,894 44,980
------ ------
Gross profit 19,512 15,118
------ ------
Operating expenses
Selling 4,365 3,878
General and administrative 6,734 4,957
Amortization of goodwill and other intangible assets 112 93
------ ------
Total operating expenses 11,211 8,928
------ ------
Income from operations 8,301 6,190
------ ------
Other income (expense)
Interest expense (net) (2,412) (2,494)
Other (274) 112
------ ------
Total other expense (2,686) (2,382)
------ ------
Income before income taxes 5,615 3,808
Provision for income taxes 2,358 1,447
------ ------
Net income $ 3,257 $ 2,361
====== ======
Earnings per share
- Primary $ 0.39 $ 0.30
====== ======
- Fully diluted $ 0.33 $ 0.26
====== ======
Common and common equivalent shares outstanding
- Primary 8,264 7,989
- Fully diluted 11,787 11,573
<FN>
See accompanying Notes to Unaudited Consolidated Financial Statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
MICROSEMI CORPORATION AND SUBSIDIARIES
Unaudited Consolidated Statements of Retained Earnings (Accumulated Deficit)
(amounts in 000's)
<CAPTION>
26 Weeks Ended 26 Weeks Ended
March 31, 1996 April 2, 1995
-------------- --------------
<S> <C> <C>
Retained earnings (accumulated deficit) at beginning of period $ 4,908 $ (1,128)
Net income 3,257 2,361
Currency translation loss (51) (2)
----- -----
Retained earnings at end of period $ 8,114 $ 1,231
<FN>
See accompanying Notes to Unaudited Consolidated Financial Statements.
</FN>
</TABLE>
<PAGE>
<TABLE>
MICROSEMI CORPORATION AND SUBSIDIARIES
Unaudited Consolidated Statements of Cash Flows
(amounts in 000's)
<CAPTION>
26 Weeks Ended 26 Weeks Ended
March 31, 1996 April 2, 1995
<S> <C> <C>
CASH FLOWS FROM OPERATING ACTIVITIES:
Net earnings $ 3,257 $ 2,361
Adjustments to reconcile net earnings to net cash provided
from operating activities:
Depreciation and amortization 2,012 1,800
Increase (decrease) in allowance for doubtful accounts 474 (148)
Translation loss on foreign currency (51) (2)
Changes in assets and liabilities:
Accounts receivable (2,675) (673)
Inventories (3,826) (1,913)
Other current assets 1,549 (95)
Other assets 29 633
Accounts payable and accrued liabilities 1,487 (1,000)
Income taxes payable (789) 1,123
------ ------
Net cash provided from operating activities 2,007 2,086
------ ------
CASH FLOWS FROM INVESTING ACTIVITIES:
Additions to property and equipment (2,901) (1,395)
------ ------
Net cash used for investing activities (2,901) (1,395)
------ ------
CASH FLOWS FROM FINANCING ACTIVITIES:
Increase (decrease) in notes payable to banks and others 1,513 (690)
Reduction of long-term debt (1,502) (1,051)
Increase in (reduction of) other long-term liabilities 79 (6)
Exercise of employee stock options 80 60
------ ------
Net cash provided from (used for) financing activities 170 (1,687)
------ ------
Net decrease in cash and cash equivalents (724) (996)
Cash and cash equivalents at beginning of period 3,965 3,994
------ ------
Cash and cash equivalents at end of period $ 3,241 $ 2,998
====== ======
<FN>
See accompanying Notes to Unaudited Consolidated Financial Statements.
</FN>
</TABLE>
<PAGE>
MICROSEMI CORPORATION AND SUBSIDIARIES
NOTES TO UNAUDITED CONSOLIDATED FINANCIAL STATEMENTS
March 31, 1996
1. PRESENTATION OF FINANCIAL INFORMATION
The financial information furnished herein is unaudited, but, in the opinion of
the management of Microsemi Corporation, includes all adjustments (all of which
are normal, recurring adjustments) necessary for a fair presentation of the
results of operations for the periods indicated. The results of operations for
the first twenty-six weeks of the current fiscal year are not necessarily
indicative of the results to be expected for the full year.
The accompanying unaudited consolidated financial statements have been prepared
in accordance with the instructions to Form 10-Q and, therefore, do not include
all information and footnotes necessary for a fair presentation of financial
position, results of operations and cash flows in conformity with generally
accepted accounting principles. The financial statements and notes should,
therefore, be read in conjunction with the financial statements and notes
thereto in the Annual Report on Form 10-K for the fiscal year ended October 1,
1995.
2. INVENTORIES
For interim reporting purposes, cost of goods sold and inventories are estimated
based upon the use of the gross profit method applied to each product line.
<TABLE>
Inventories used in the computation of cost of goods sold were:
<CAPTION>
March 31, 1996 October 1, 1995
-------------- ---------------
(amounts in 000's)
<S> <C> <C>
Raw materials $ 10,162 $ 10,367
Work in progress 21,677 20,847
Finished goods 14,728 12,067
------ ------
$ 46,567 $ 43,281
====== ======
</TABLE>
<PAGE>
3. BORROWINGS
<TABLE>
Long-term debt consisted of:
<CAPTION>
March 31, 1996 October 1, 1995
(amounts in 000's)
<S> <C> <C>
Industrial Development Bond-bearing interest at
7.875% due in installments from 1996 to 2000;
secured by first deed of trust $ 2,905 $ 2,905
Industrial Development Bond-bearing interest at
6.75% due in installments from 1998 to 2005;
secured by first deed of trust 5,350 5,350
Convertible Subordinated Debentures-bearing
interest at 5.875% due in March 2012 33,281 33,281
Convertible Subordinated Notes-bearing interest
at 10% due 1999 2,000 2,000
Notes payable-bearing interest at ranges of 5% - 13%
due between December 1996 and July 2002 5,448 6,950
------ ------
48,984 50,486
Less current portion (1,878) (2,328)
------ ------
$ 47,106 $ 48,158
====== ======
</TABLE>
The Company maintains a line of credit with a bank, from which the Company can
borrow up to $20,000,000 based upon percentages of certain accounts receivable
and inventory balances at certain of the Company's operations. As of March 31,
1996, $5,969,000 was borrowed under this credit facility.
The Company's 5.875% Convertible Subordinated Debentures require annual sinking
fund payments in the amount of 5% of the principal amount thereof, commencing in
March 1997, less the principal amount of converted or redeemed debentures.
A letter of credit for the Microsemi Santa Ana Industrial Development Revenue
Bond is carried by a bank in the amount of $5,557,000. This letter of credit
guarantees the repayment of a $5,350,000 Industrial Development Revenue Bond
which was issued in April 1985 and carries interest currently at 6.75% per
annum, through the City of Santa Ana for the construction of improvements and
new facilities at the Santa Ana plant. The terms of the letter of credit require
principal payments of $350,000 in 1996, 1997 and 1998; $100,000 from 1999 to
2004 and $3,700,000 in 2005.
4. EARNINGS PER SHARE
Earnings per share for the primary basis have been computed based upon the
weighted average number of common and common equivalent shares outstanding
during the respective periods. Earnings per share for the fully diluted basis
have been computed, when the result is dilutive, based upon the assumption that
the convertible subordinated debt had been converted to common stock at the date
of issuance, with a corresponding increase in net income to reflect a reduction
in related interest expense, net of applicable taxes.
<PAGE>
5. STATEMENT OF CASH FLOWS
For purposes of the Consolidated Statements of Cash Flows, the Company considers
all short-term, highly liquid investments with maturities of three months or
less at the date of acquisition to be cash equivalents.
<TABLE>
Supplementary information
- -------------------------
26 weeks ended 26 weeks ended
March 31, 1996 April 2, 1995
-------------- -------------
Cash paid during the period for: (amounts in 000's)
<S> <C> <C>
Interest $ 1,900 $ 3,262
Income taxes $ 3,147 $ 144
</TABLE>
6. CONTINGENCY
In Broomfield, Colorado, an owner of property located adjacent to a
manufacturing facility owned by a subsidiary of the Company had filed suit
against the subsidiary and other parties, claiming that contaminants migrated to
his property, thereby diminishing its value. In August 1995, the subsidiary,
together with former owners of the manufacturing facility, agreed to settle the
claim and to indemnify the owner of the adjacent property from remediation
costs. Although TCE and other contaminants previously used at the facility are
present in soil and groundwater on the subsidiary's property, the Company
vigorously contests any assertion that the subsidiary is the cause of the
contamination; however, there can be no assurance that recourse will be
available against third parties. State and local agencies in Colorado are
reviewing current data and considering study and cleanup options, and it is not
yet possible to predict costs for remediation or the allocation thereof among
potentially responsible parties.
Item 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF FINANCIAL CONDITION AND
RESULTS OF OPERATIONS
This Quarterly Report on Form 10-Q includes forward looking statements,
the realization of which may be impacted by certain important factors discussed
below under "Important Factors Related to Forward-Looking Statements and
Associated Risks."
Introduction
Microsemi Corporation is a multinational supplier of high reliability
power semiconductors, surface mount and custom diode assemblies for the
electronics, computer, telecommunications, defense/aerospace and medical
markets. The Company's semiconductor products include diodes, transistors and
silicon controlled rectifiers (SCR's) which can be used in virtually all
electrical and electronic circuits. Typical functions include solid state
switching, signal processing, voltage and power regulation, circuit protection
and absorption of electrical surges and transient voltage spikes. Technologies
for these devices range from the very mature mesa rectifier diodes, still used
in all power supply applications, to the newly designed micro-miniature
transient absorbers, which are mounted within the cables used to connect
computer and telecommunications equipment.
<PAGE>
Capital Resources and Liquidity
Microsemi Corporation's operations in the first six months of fiscal year
1996 were funded with internally generated funds and borrowings from the
Company's line of credit. Under the current line of credit, the Company can
borrow up to $20,000,000 based upon percentages of certain accounts receivable
and inventory balances at certain of the Company's operations. As of March 31,
1996, $5,959,000 was borrowed under this credit facility. At March 31, 1996, the
Company had $3,241,000 in cash and cash equivalents.
A letter of credit for the Microsemi Santa Ana Industrial Development
Revenue Bond is carried by a bank in the amount of $5,557,000. This letter of
credit guarantees the repayment of a $5,350,000 Industrial Development Revenue
Bond which was issued in April 1985 and carries interest currently at 6.75% per
annum, through the City of Santa Ana for the construction of improvements and
new facilities at the Santa Ana plant. The terms require principal payments of
$350,000 in 1996, 1997 and 1998; $100,000 from 1999 to 2004 and $3,700,000 in
2005.
See note 5 to the unaudited consolidated financial statements for further
discussion of borrowings.
The Company believes that it can meet its current operating cash and debt
service requirements with internally generated funds together with its available
borrowing capacity.
The average collection period of accounts receivable was 52 days for the
first six months of fiscal year 1996 compared to 55 days for the same period of
fiscal year 1995.
The average days sales of products in inventories was 149 days for the
first half of fiscal year 1996 compared to 166 days for the corresponding period
of fiscal year 1995. This decrease primarily resulted from higher sales in the
period.
The Company has no other significant capital commitments.
Order backlog at March 31, 1996 increased to $70,100,000 from $52,100,000
at April 2, 1995.
Important Factors Related to Forward-Looking Statements and Associated Risks
This Quarterly Report on Form 10-Q contains certain forward-looking
statements that are based on current expectations and involve a number of risks
and uncertainties. The forward looking statements included herein are based on
current assumptions that the Company will be able to meet its current operating
cash and debt service requirements with internally generated funds and its
available line of credit, that it will be able to successfully resolve disputes
and other business matters as anticipated, that competitive conditions within
the semiconductor, surface mount and custom diode assembly industries will not
change materially or adversely, that the Company will retain existing key
personnel, that the Company's forecasts will reasonably anticipate market demand
for its products, and that there will be no material adverse change in the
Company's operations or business. Assumptions relating to the foregoing involve
judgements that are difficult to predict accurately and are subject to many
factors that can materially affect results. Forecasting and other management
decisions are subjective in many respects and thus susceptible to
interpretations and periodic revisions based on actual experience and business
developments, the impact of which may cause the Company to alter its forecasts,
which may in turn affect the Company's results. In light of the factors that can
materially affect the forward-looking information included herein, the inclusion
of such information should not be regarded as a representation by the Company or
any other person that the objectives or plans of the Company will be achieved.
<PAGE>
RESULTS OF OPERATIONS FOR THE THIRTEEN WEEKS ENDED MARCH 31, 1996 COMPARED TO
THE THIRTEEN WEEKS ENDED APRIL 2, 1995.
Net sales for the second quarter of fiscal year 1996 increased 21% to
$39,107,000, from $32,441,000 for the same period of fiscal year 1995. The
increase of $6,666,000 was primarily due to higher volume of shipments in
commercial, telecommunication, medical and commercial space products.
Gross profit increased $2,195,000 to $10,309,000 for the current quarter
of fiscal year 1996 from $8,114,000 for the same period of fiscal year 1995 as a
result of higher sales. As a percentage of sales, gross profit increased from
25% to 26% for the second quarters of fiscal years 1995 and 1996, respectively,
as a result of increased absorption of fixed overhead due to higher sales
volume.
Operating expenses for the thirteen weeks ended March 31, 1996 increased
$1,241,000, compared to the corresponding period of the prior year, primarily
due to additional support required for the higher sales volume.
The effective tax rates of 42% and 38% in the second quarters of fiscal
years 1996 and 1995, respectively, are the combined result of taxes computed on
foreign and domestic income.
RESULTS OF OPERATIONS FOR THE TWENTY-SIX WEEKS ENDED MARCH 31, 1996 COMPARED TO
THE TWENTY-SIX WEEKS ENDED APRIL 2, 1995.
Net sales for the first half of fiscal year 1996 increased 24% to
$74,406,000, from $60,098,000 for the first half of fiscal year 1995. The
increase of $14,308,000 was primarily due to higher volume of shipments in
commercial, telecommunication, medical and commercial space products.
Gross profit increased $4,394,000 to $19,512,000 for the first six months
of fiscal year 1996 from $15,118,000 for the same period of fiscal year 1995 as
a result of higher sales. As a percentage of sales, gross profit increased from
25% to 26% for the first twenty-six weeks of fiscal years 1995 and 1996,
respectively, primarily as a result of increased absorption of fixed overhead
due to higher sales volume.
Operating expenses for the twenty-six weeks ended March 31, 1996
increased $2,283,000, compared to the corresponding period of the prior year,
primarily due to additional support required for the higher sales volume;
however, operating expense, as a percentage of sales, remained relatively
consistent at approximately 15% of sales for both periods.
The effective tax rates of 42% and 38% in the first six months of fiscal
years 1996 and 1995, respectively, are the combined result of taxes computed on
foreign and domestic income.
<PAGE>
PART II - OTHER INFORMATION
Item 1. Legal Proceedings
-----------------
Inapplicable.
Item 2. Changes in Securities
---------------------
Inapplicable.
Item 3. Defaults Upon Senior Securities
-------------------------------
Inapplicable.
Item 4. Submission of Matters to a Vote of Security Holders
---------------------------------------------------
(a) An election of the Board of Directors was held at the
annual meeting of Stockholders on February 27, 1996.
(b) Names and personal information about the nominees to
the Board of Directors were included in the Proxy
Statement dated January 27, 1996.
(c) 7,200,415 votes were received for each of the
nominees to the Board of Directors as follows:
For Withheld
Philip Frey, Jr. 7,196,923 3,492
Jiri Sandera 7,197,340 3,075
Joseph M. Scheer 7,197,465 2,950
Brad Davidson 7,197,340 3,075
Robert B. Phinizy 7,197,340 3,075
Martin H. Jurick 7,197,465 2,950
(d) Inapplicable.
Item 5. Other Information
-----------------
None
<PAGE>
Item 6. Exhibits and Reports on Form 8-K
--------------------------------
(a) Exhibits:
Exhibit 10.78 Motorola - Microsemi PowerMite(R)
Technology Agreement
Exhibit 11.4 Unaudited computation of Earnings Per
Share for the thirteen and twenty-six
weeks ended March 31, 1996 and April 2,
1995
Exhibit 27.6 Unaudited Financial Data Schedule for the
six months ended March 31, 1996
(b) Reports on Form 8-K:
None
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, as amended,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
MICROSEMI CORPORATION
By: /DAVID R. SONKSEN/
-----------------------------
David R. Sonksen
Vice President - Finance and
Chief Financial Officer
(Principal Financial Officer
and Chief Accounting Officer
and duly authorized to sign on
behalf of the Registrant)
DATED: May 9, 1996
<PAGE>
<TABLE>
Exhibit 11.4
Microsemi Corporation and Subsidiaries
Earnings Per Share
For the thirteen and twenty-six weeks
ended March 31, 1996 and April 2, 1995
(in thousands, except per share data)
<CAPTION>
13 Weeks ended 26 Weeks ended
-------------- --------------
March 31, April 2, March 31, April 2,
1996 1995 1996 1995
--------- -------- --------- --------
PRIMARY
<S> <C> <C> <C> <C>
Net income $ 1,828 $ 1,348 $ 3,257 $ 2,361
====== ====== ====== ======
Outstanding shares 7,824 7,630 7,824 7,630
Equivalent shares from stock options 408 363 440 359
------ ------ ------ ------
Primary common and common
equivalent shares 8,232 7,993 8,264 7,989
====== ====== ====== ======
Primary earnings per share $ 0.22 $ 0.17 $ 0.39 $ 0.30
====== ====== ====== ======
</TABLE>
<TABLE>
<CAPTION>
FULLY DILUTED
<S> <C> <C> <C> <C>
Net earnings $ 1,828 $ 1,348 $ 3,257 $ 2,361
Interest savings from conversion
of convertible debt 323 333 646 667
------ ------ ------ ------
Fully diluted income $ 2,151 $ 1,681 $ 3,903 $ 3,028
====== ====== ====== ======
Outstanding shares 7,824 7,630 7,824 7,630
Equivalent shares from stock options 408 420 440 420
Convertible shares 3,523 3,523 3,523 3,523
------ ------ ------ ------
Fully diluted common and common
equivalent shares 11,755 11,573 11,787 11,573
====== ====== ====== ======
Fully diluted earnings per share $ 0.18 $ 0.15 $ 0.33 $ 0.26
====== ====== ====== ======
</TABLE>
<PAGE>
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1000
<S> <C>
<PERIOD-TYPE> 6-MOS
<FISCAL-YEAR-END> SEP-29-1996
<PERIOD-START> OCT-02-1995
<PERIOD-END> MAR-31-1996
<CASH> 3241
<SECURITIES> 0
<RECEIVABLES> 24884
<ALLOWANCES> 2492
<INVENTORY> 46567
<CURRENT-ASSETS> 80497
<PP&E> 54945
<DEPRECIATION> 30342
<TOTAL-ASSETS> 108889
<CURRENT-LIABILITIES> 33330
<BONDS> 47106
0
0
<COMMON> 1564
<OTHER-SE> 22832
<TOTAL-LIABILITY-AND-EQUITY> 108889
<SALES> 74406
<TOTAL-REVENUES> 74406
<CGS> 54894
<TOTAL-COSTS> 54894
<OTHER-EXPENSES> 274
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> 2412
<INCOME-PRETAX> 5615
<INCOME-TAX> 2358
<INCOME-CONTINUING> 3257
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> 0
<NET-INCOME> 3257
<EPS-PRIMARY> .39
<EPS-DILUTED> .33
<PAGE>
</TABLE>
Exhibit 10.78
MOTOROLA - MICROSEMI POWERMITE(R) TECHNOLOGY AGREEMENT
THIS AGREEMENT, having an EFFECTIVE DATE as defined herein, is entered into by
and between Motorola, Inc., a Delaware corporation, and its SUBSIDIARIES, having
an office at 5005 East McDowell Road, Phoenix, Arizona 85008, U.S.A.
(hereinafter called "MOTOROLA"), and Microsemi USPD, Inc., a Delaware
Corporation, having an office at 580 Pleasant Street, Watertown, Massachusetts
02172 (hereinafter called "MICROSEMI").
WHEREAS MICROSEMI has designed and is manufacturing a package known as the
POWERMITE(R) Package, and is in rightful possession of certain proprietary
rights in the valuable technology related thereto; and
WHEREAS MOTOROLA is particularly qualified and otherwise particularly suited to
become an alternate source of the POWERMITE(R) Package and desires to obtain
licenses and other rights from MICROSEMI with regard to the aforementioned
proprietary rights in order to become an alternate source for such package; and
WHEREAS MICROSEMI recognizes the particular qualification of MOTOROLA and
desires that MOTOROLA become an alternate source for such package.
NOW, THEREFORE, MICROSEMI and MOTOROLA agree as follows:
Section 1 - Definitions
Terms in this Agreement, other than names of the parties hereto, which appear in
capital letters, shall have the following meanings:
1.1 COST LESS CHIP OR CLC shall mean the costs incurred by MOTOROLA in the
manufacture of LICENSED PRODUCT using MOTOROLA's actual cost in effect on the
date calculated.
1.2 EFFECTIVE DATE shall mean the date of last signature of this Agreement.
1.3 IMPROVEMENT(S) shall mean any enhancements to LICENSED PRODUCT or related
derivatives, including, but not limited to, design and manufacturing
improvements made by either party to the LICENSED PRODUCT during the term of
this Agreement.
1.4 LICENSED PRODUCT shall mean MICROSEMI's POWERMITE(R) package which is
further described in Appendix B, POWERMITE(R) Package Specifications, attached
hereto and made a part hereof.
1.5 LICENSED TRADEMARK shall mean any trademark owned or controlled by MICROSEMI
that is used in the merchandising of LICENSED PRODUCT by MICROSEMI, specifically
including the trademark POWERMITE(R).
1.6 MEETING DAY shall mean a full eight hour working day during which the
employees of one party may visit the other party's facility and which visit is
coordinated through the Documentation Managers for each party.
1.7 MICROSEMI PATENTS shall mean all classes or types of patents, utility
models, and design patents of all countries of the world, arising out of
inventions made by employees of MICROSEMI, the applications for which have a
first effective filing date in any country prior to the date of expiration or
termination of this Agreement, or which patents may, prior to or during the term
of this Agreement, be acquired by MICROSEMI, and under which, and to the extent
to which, and subject to the conditions under which, MICROSEMI or any successor
may have, as of the effective date of this Agreement, or at the date of
acquisition with respect to patents acquired by or after the effective date of
this Agreement, the right to grant licenses of the scope granted herein without
the payment of royalties or other consideration to third persons, except for
payments to third persons for inventions made by said persons while employed by
MICROSEMI, and which patents are essential to
<PAGE>
the reasonable practice or exercise of any rights granted hereunder,
including, but not limited to, U.S. Letters Patent Number 5225897.
1.8 MICROSEMI TECHNICAL INFORMATION shall mean the items of Appendix A, attached
hereto and made a part hereof, or items to be subsequently added to Appendix A
and which items have been transferred to MOTOROLA by MICROSEMI hereunder;
information transferred from MICROSEMI to MOTOROLA as a consequence of rendering
Technical Assistance, including, but not limited to, MICROSEMI UPDATE(S) or
MICROSEMI IMPROVEMENT(S).
1.9 MOTOROLA PATENTS shall mean all classes or types of patents, utility models
and design patents of all countries of the world which arise out of inventions
made by employees of MOTOROLA's Semiconductor Products Sector prior to
termination of this AGREEMENT, and 1) which cover inventions used in, or in the
making of, LICENSED PRODUCT when such coverage only exists because of the
inclusion of MOTOROLA TECHNICAL INFORMATION, or 2) which cover products sold by
MICROSEMI, including their manufacture and use, when such coverage only exists
because of the inclusion of MOTOROLA TECHNICAL INFORMATION in such MICROSEMI
product.
1.10 MOTOROLA TECHNICAL INFORMATION shall mean information transferred from
MOTOROLA to MICROSEMI as a consequence of rendering or receiving Technical
Assistance with respect to LICENSED PRODUCT, including, but not limited to,
MOTOROLA UPDATE(S) or MOTOROLA IMPROVEMENT(S).
1.11 SUBSIDIARIES shall mean any Corporations, Companies or other entities more
than fifty percent (50%) of whose outstanding shares of stock entitled to vote
for the election of Directors (other than any shares of stock whose voting
rights are subject to restriction) are owned or controlled by either party
hereto, directly or indirectly, now or hereafter, during the term of this
Agreement.
1.12 TECHNICAL INFORMATION shall mean MICROSEMI TECHNICAL INFORMATION or
MOTOROLA TECHNICAL INFORMATION.
1.13 UPDATES shall mean information regarding modifications to an item of
TECHNICAL INFORMATION for LICENSED PRODUCT which has been made by MICROSEMI or
MOTOROLA to correct an error in such item which is reflected as an error in the
associated LICENSED PRODUCT or the testing thereof. The form of the information
shall be logic diagrams/schematics, composite plots, and detailed written
descriptions or explanations of the UPDATE, sufficient to allow the recipient to
implement such UPDATE.
Section 2 - Licenses
2.1 [Confidential Information Omitted]
2.2 [Confidential Information Omitted]
2.3 [Confidential Information Omitted]
2.4 [Confidential Information Omitted]
2.5 MICROSEMI grants and agrees to grant to MOTOROLA a worldwide exclusive right
and license under LICENSED TRADEMARK to use LICENSED TRADEMARK in the
merchandising of LICENSED PRODUCT.
2.6 The exclusive rights and licenses granted herein by MICROSEMI to MOTOROLA
are exclusive only as to third parties.
2.7 As provided herein, each party has the right to have LICENSED PRODUCT made
by a third party subcontractor, provided all of the following conditions are
met:
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
2.7.1 That such subcontractor manufactures the LICENSED PRODUCT exclusively
for MOTOROLA or MICROSEMI, as the case may be, without having any right
to sell, use, lease, or otherwise dispose of such LICENSED PRODUCT to
any third party for such subcontractors account; and
2.7.2 That such subcontractor has not been given any access to any TECHNICAL
INFORMATION of MOTOROLA or MICROSEMI as the case may be, except to the
extent necessary to perform the manufacturing of LICENSED PRODUCT, and
that such subcontractor has substantially agreed to the obligations of
confidentiality with respect to such TECHNICAL INFORMATION as set forth
in this Agreement.
2.7.3 That such subcontractor has agreed with MOTOROLA or MICROSEMI, as the
case may be, to manufacture such LICENSED PRODUCT in accordance with
the standards of quality, performance and workmanship established
respectively by MOTOROLA or MICROSEMI.
2.8 Notwithstanding anything to the contrary herein stated, neither party shall
be obligated nor required to disclose to the other party any TECHNICAL
INFORMATION which such party may have acquired from a third party with respect
to which such party is obligated by contract not to disclose to others.
Section 3 - Transfer of TECHNICAL INFORMATION
3.1 MICROSEMI shall commence the transfer of TECHNICAL INFORMATION to MOTOROLA
within thirty (30) days after the EFFECTIVE DATE of this Agreement, and shall
use its best efforts to complete such transfer within sixty (60) days after such
EFFECTIVE DATE. The transfer of each such TECHNICAL INFORMATION shall be
complete when all items of Appendix A have been received by MOTOROLA, except for
UPDATES, IMPROVEMENTS, and those items conditioned by availability which will be
transferred if and when available. Any MICROSEMI TECHNICAL INFORMATION added to
Appendix A by MICROSEMI after the EFFECTIVE DATE shall be transferred to
MOTOROLA in tangible format within sixty (60) days after MICROSEMI has added it
to Appendix A.
3.2 On a continuing basis during the term of this Agreement, each party shall
furnish UPDATES to the other party within thirty (30) days after their first
successful implementation.
3.3 Notwithstanding the foregoing Section 3.2, in the event that, during the
term of this Agreement, either party discovers any defect in a LICENSED PRODUCT
such that the LICENSED PRODUCT does not meet the data sheet specification, such
party shall routinely inform the other party of such defect within thirty (30)
days.
3.4 On a continuing basis during the term of this Agreement, each party shall
furnish IMPROVEMENT(s) to the other party within sixty (60) days after their
first successful implementation.
3.5 During the term of this Agreement, each party agrees to produce the LICENSED
PRODUCT in compliance with mutually agreed upon external package specifications
as to "form" and "fit." Each party agrees not to modify the agreed upon
specifications in any way that could adversely affect the external geometry, and
the mechanical, thermal, and electrical performance and ratings of the
POWERMITE(R) PACKAGE. Each party agrees and understands that there are no
requirements with respect to the internal specifications as to the "function" of
the LICENSED PRODUCT.
<PAGE>
Section 4 - Technical Assistance
4.1 Following the transfer of information pursuant to Section 3.1, MOTOROLA
shall have the right, subject to the reasonable approval of MICROSEMI as to the
specific periods of attendance, to send its personnel to MICROSEMI's development
and manufacturing facilities to receive technical assistance relating to
MICROSEMI TECHNICAL INFORMATION and the use thereof in the manufacture of the
related LICENSED PRODUCT. The number of MOTOROLA personnel who may be sent to
the facilities of MICROSEMI, the schedule, and the agenda for such visits shall
be agreed upon in advance and coordinated by the Documentation Managers for each
party. Written information may be requested with respect to MICROSEMI TECHNICAL
INFORMATION considered on such a visit and will be provided if reasonably
available. Each party will pay all of its own expenses incurred in connection
with the technical assistance as provided for in this Paragraph 4.1. Additional
technical assistance may be provided by mutual agreement.
4.2 Following the transfer of UPDATE(S) OR IMPROVEMENT(S) pursuant to Section
3.2 or 3.4, the receiving party shall have the right, subject to the reasonable
approval of the transferring party, as to the specific periods of attendance, to
send its personnel to the transferring party's development and manufacturing
facilities to receive technical assistance relating to UPDATE(S) or
IMPROVEMENT(S) and the use thereof in the manufacture of the related LICENSED
PRODUCT. The number of personnel of the receiving party who may be sent to the
facilities of the transferring party, the schedule, and the agenda for such
visits shall be agreed upon in advance and coordinated by the Documentation
Managers for each party. Written information may be requested with respect to
all UPDATE(S) or IMPROVEMENT(S) considered on such a visit and will be provided
if reasonably available. Each party will pay all of its own expenses incurred in
connection with the technical assistance as provided for in this Paragraph 4.2.
Additional technical assistance may be provided by mutual agreement.
4.3 Representatives and personnel of each party, during the time they are
present on the premises of the other party, shall be subject to all rules and
regulations prevailing on such premises. Each party shall be responsible for the
payment of all compensation and expense of its respective representatives and
personnel. None of the representatives or personnel of either party shall be
considered, for any reason, to be an employee or agent of the other.
4.4 Each party agrees that, if any person connected with it, or assigned by it
to work hereunder, or such person's legal representative, shall present any
claim or institute any suit or action against the other party, or their
directors, officers, agents, or employees, for any property damage or personal
injury, including death, connected with, related to, or arising out of the
performance of this Agreement, the party associated with such person shall
defend and indemnify the other party, and their directors, officers, agents, and
employees, against any and all such claims, Suits, or actions.
Section 5 - Compensation
5.1 In consideration for the licenses and rights granted herein, MOTOROLA shall
pay MICROSEMI [Confidential Information Omitted].
5.2 In further consideration for the licenses and rights granted herein,
MOTOROLA shall pay MICROSEMI the sum of [Confidential Information Omitted].
5.3 In further consideration for the licenses and rights granted herein,
MOTOROLA grants to MICROSEMI the right to purchase from MOTOROLA certain
POWERMITE(R) packaging services governed by the terms and conditions of the
MOTOROLA - MICROSEMI POWERMITE(R) SERVICES AGREEMENT which shall include, but
not be limited to, the following terms:
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
5.3.1 MICROSEMI will have the right to purchase [Confidential
Information Omitted], unless the parties agree in good faith to a
different quantity.
5.3.2 The price for the assembly of such LICENSED PRODUCT shall be
[Confidential Information Omitted].
5.3.3 At the end of each calendar quarter of production MOTOROLA shall
calculate [Confidential Information Omitted]. This calculation process
shall be repeated each quarter during production.
5.3.4 MICROSEMI shall provide MOTOROLA with chips in wafer form to be
used in the assembly of LICENSED PRODUCT(s) for MICROSEMI's account as
provided herein.
Section 6 - Commitments
6.1 Each party agrees to manufacture LICENSED PRODUCT in accordance with the
standards of quality, performance and workmanship as established and as
practiced by the other party.
6.2 MOTOROLA and MICROSEMI agree to negotiate a separate services agreement
consistent with Section 5 for the manufacture of LICENSED PRODUCT by MOTOROLA
for MICROSEMI. Notwithstanding anything to the contrary stated herein, the
parties agree the devices assembled by MOTOROLA for MICROSEMI, in accordance
with Section 5 of this Agreement, shall be limited to rectifiers and diodes and
shall expressly exclude transistors and integrated circuits.
6.3 If, at any time after the EFFECTIVE DATE, MOTOROLA elects to discontinue the
manufacture of LICENSED PRODUCT, MICROSEMI shall have the right to purchase any
special equipment and tooling used by MOTOROLA in the manufacture of LICENSED
PRODUCT. The parties agree to negotiate in good faith the purchase price of any
such special equipment and tooling.
6.4 If, at any time after EFFECTIVE DATE, MOTOROLA elects to transfer the
assembly of LICENSED PRODUCT to a third party subcontractor, MOTOROLA agrees to
exert reasonable, good faith efforts to obtain the approval of such
subcontractor to assemble LICENSED PRODUCT under the terms herein specified or
such other terms as would be acceptable to MICROSEMI. In the event such
subcontractor does not agree to assemble LICENSED PRODUCT for MICROSEMI, then
MICROSEMI shall have the right to purchase from MOTOROLA units of equipment or
tooling reasonably necessary for MICROSEMI to assemble the quantity of LICENSED
PRODUCT that MICROSEMI was buying from MOTOROLA, but no more than MOTOROLA
required to make such quantity of LICENSED PRODUCT, on the date of such transfer
to a third party. The parties agree to negotiate in good faith the purchase
price of any such equipment and tooling.
6.5 MOTOROLA agrees to include a statement on data sheets, advertising, and
similar documents indicating that POWERMITE(R) is a registered trademark of, and
used under, a license from Microsemi Corporation.
Section 7 - Term, Termination and Assignment
7.1 This Agreement shall become effective as of the EFFECTIVE DATE, and
[Confidential Information Omitted]; provided, however, that after the initial
term of this Agreement, the Agreement will be automatically renewed under the
same terms and conditions for additional one (1) year terms, unless a party
hereto gives notice six (6) months before the end of the initial term or
succeeding one (1) year term(s) to the other party of its intention to allow the
Agreement to expire. Upon expiration of this Agreement, the transfer of
TECHNICAL INFORMATION shall cease forthwith, each party shall return to the
other party all TECHNICAL INFORMATION received from such other party, and the
licenses of Section 2 shall survive.
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
7.2 Either party may cancel this Agreement on ninety (90) days written notice to
the other party for failure of the other party to fulfill any of its material
obligations hereunder; provided, however, that if during said ninety (90) day
period said other party shall have fulfilled said obligations, this Agreement
shall continue in full force and effect as if such notice had not been given.
7.3 This Agreement is personal to each of the parties hereto, and either
party shall have the right to cancel this Agreement by giving written notice
of cancellation to the other party at any time upon or after: 1) the filing
by the other party of a petition in bankruptcy or insolvency; 2) any
adjudication that the other party is bankrupt or insolvent; 3) the filing by
the other party under any law relating to bankruptcy or insolvency; 4) the
appointment of a receiver for all or substantially all of the property of the
other party; 5) the making by the other party of any assignment or attempted
assignment of this Agreement for the benefit of creditors; or 6) the
institution of any proceedings for the liquidation or winding up of the other
party's business or for the termination of its corporate charter. Upon the
giving of such notice of cancellation, this Agreement shall be terminated
forthwith.
7.4 In the event of a direct or indirect taking over or assumption of control of
either party, without the consent of its management and board of directors, by
any third party, the other party shall have the right to cancel this Agreement
at any time thereafter upon giving written notice thereof to the party and, upon
the giving of such notice of cancellation, this Agreement shall terminate
forthwith.
7.5 This Agreement, and any rights or licenses granted herein, are personal to
each party and shall be binding upon and inure to the benefit of the parties
hereto and their respective successors and assigns; provided, however, that
neither party shall assign any of its rights or privileges hereunder without the
prior written consent of the other party except to a successor in ownership of
all the relevant assets of the assigning party, which successor shall expressly
assume in writing the performance of all terms and conditions of this Agreement
to be performed by the assigning party. Should either party attempt an
assignment in derogation of the foregoing, the other party shall have the right
to immediately cancel this Agreement.
7.6 In the event of an assignment to a successor of all the relevant assets of
either party in accordance with Paragraph 7.5, if such successor is a competitor
of one of the parties in one or more of that party's businesses, that party may:
1) continue the Agreement under the terms and conditions herein, or 2) treat the
Agreement as prematurely expired, whereupon the transfer of TECHNICAL
INFORMATION shall cease forthwith, each party shall return to the other party
all TECHNICAL INFORMATION received from such other party, and, unless
specifically otherwise authorized by the canceling party in writing, the
licenses granted in Section 2 shall expire, except such licenses shall remain in
effect for products designed using TECHNICAL INFORMATION prior to such
termination.
7.7 If this Agreement is canceled by MICROSEMI in accordance with Paragraph 7.2,
7.3, or 7.6, any TECHNICAL INFORMATION previously transferred to MOTOROLA shall
be returned to MICROSEMI forthwith, and, unless specifically otherwise
authorized by MICROSEMI in writing, all licenses to MOTOROLA of Section 2 shall
terminate, except such licenses shall remain in effect for LICENSED PRODUCT and
semiconductors incorporating LICENSED PRODUCT designed prior to such
termination, and all licenses of Section 2 granted to MICROSEMI shall survive.
7.8 If this Agreement is canceled by MOTOROLA in accordance with Paragraph 7.2,
7.3, or 7.6, any TECHNICAL INFORMATION previously transferred to MICROSEMI shall
be returned to MOTOROLA forthwith, and, unless specifically otherwise authorized
by MOTOROLA in writing, all licenses to MICROSEMI of Section 2 shall terminate,
except such licenses shall remain in effect for
<PAGE>
LICENSED PRODUCT AND SEMICONDUCTORS DESIGNED incorporating LICENSED PRODUCT
MICROSEMI products designed prior to such termination, and all licenses of
Section 2 granted to MOTOROLA shall survive.
7.9 In the event MOTOROLA does not qualify LICENSED PRODUCT at any of its
facilities within eighteen (18) months following the EFFECTIVE DATE, this
Agreement shall be deemed terminated, and each party shall have no liability
whatsoever to the other party, except MICROSEMI shall have the right to purchase
any special equipment and tooling acquired by MOTOROLA for the assembly of
POWERMITE(R) packages at a mutually agreed upon price.
7.10 The obligations under this Section 7 to return TECHNICAL INFORMATION shall
survive expiration or cancellation of this Agreement.
7.11 No failure or delay on the part of either party in exercising its right of
termination hereunder for any one or more causes shall be construed to prejudice
its right of termination for such causes or any other or subsequent causes.
7.12 In the event MOTOROLA elects not to renew this Agreement at the end of the
initial term or at the end of any renewal thereof, MICROSEMI shall have the
right to purchase from MOTOROLA units of equipment or tooling reasonably
necessary for MICROSEMI to assemble the quantity of LICENSED PRODUCT that
MICROSEMI was buying from MOTOROLA, but no more than MOTOROLA required to make
such quantity of LICENSED PRODUCT on the date of such expiration. The parties
agree to negotiate in good faith the purchase price of any such equipment and
tooling.
7.13 Upon the expiration of this Agreement in accordance with Section 7.1 or
7.2, the exclusive rights and licenses granted to MOTOROLA shall be converted to
nonexclusive rights and licenses. MICROSEMI shall provide MOTOROLA with
confirmatory documents granting MOTOROLA such nonexclusive rights and licenses.
Section 8 - Confidentiality
8.1 It is the intention of MOTOROLA and MICROSEMI to transfer and/or exchange
information in connection with the alternate sourcing arrangement to be
established under this Agreement. Such information may be disclosed in oral,
written, or graphic form, or in the form of a computer program or database in
machine-readable form, and will include MICROSEMI TECHNICAL INFORMATION and
MOTOROLA TECHNICAL INFORMATION.
8.2 Each party shall designate one or more Documentation Managers. The
responsibility of the Documentation Managers for each party will be to control
the exchange of information between the parties and to monitor within their
company the distribution of information received from the other party to those
who have a need to know. The Documentation Managers for each party shall also
arrange conferences and visitations between personnel of the respective parties,
maintain appropriate records, and acknowledge the receipt from the other party
of all information. The initial Documentation Manager for MICROSEMI shall be
[Confidential Information Omitted] and the initial Documentation Manager for
MOTOROLA shall be [Confidential Information Omitted].
8.3 Disclosures of information by one party (Discloser) to the other party
(Recipient) pursuant to this Agreement shall be made by the Documentation
Manager for the Discloser to the Documentation Manager for the Recipient using a
form similar to Appendix C, MICROSEMI/ MOTOROLA TRANSMITTAL RECORD. Information
which is confidential (hereinafter referred to as "Confidential Information") to
a party hereto, including information which is MICROSEMI TECHNICAL INFORMATION
and/or MOTOROLA TECHNICAL INFORMATION, shall be disclosed as follows. When such
is disclosed in writing and accepted, such writing should state the date of
disclosure and should contain an appropriate legend, such as "Motorola
Confidential Proprietary" or "MICROSEMI Confidential Information." If such
disclosure is orally and/or visually made, it shall be identified at the time of
disclosure as being Confidential
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
Information and shall be confirmed in a written resume within twenty (20) days
following such disclosure. The resume will specifically point out that which is
Confidential Information in sufficient detail to allow the receiving party to
identify that information deemed to be Confidential Information. Such resume
will also contain an appropriate legend as set forth above. When such disclosure
is in graphic form or in the form of a computer program or database, it shall be
identified as Confidential Information by a label with an appropriate legend or
by notice of the confidential nature of the information appearing in
machine-readable form in the program or database.
8.4 Except as provided hereinafter, for a period of five (5) years from the date
of receipt of the Confidential Information of the Discloser, the Recipient
agrees to use the same care and discretion, but at least reasonable care and
discretion, to avoid disclosure, publication, or dissemination of Confidential
Information outside the Recipient as the Recipient employs with similar
information of its own, which it does not desire to publish, disclose, or
disseminate. Notwithstanding the expiration of the obligation to exert the above
standard of care, the receiving party may not transfer such Confidential
Information or any portion thereof to a third party. If Confidential Information
of the Discloser was first received under any other agreement previously entered
into by the parties relating to the subject matter of this Agreement, the period
of confidentiality shall be as specified in that previous agreement and shall be
measured from the date of first receipt under that previous agreement.
8.5 Disclosure of Confidential Information shall not be precluded if such
disclosure is:
8.5.1 in response to a valid order of a court or other governmental body of
the United States or any political subdivision thereof; provided,
however, that the disclosing party shall first have made a good faith
effort to obtain a protective order requiring that the information
and/or documents so disclosed be used only for the purpose for which
the order was issued; or
8.5.2 otherwise required by law.
8.6 This Agreement imposes no obligation upon the receiving party with respect
to Confidential Information disclosed under this Agreement which:
8.6.1 is now available or becomes available to the public without breach of
this Agreement;
8.6.2 is explicitly approved for release by written authorization of the
Discloser;
8.6.3 is lawfully obtained from a third party or parties without a duty of
confidentiality;
8.6.4 is disclosed to a third party by Discloser without a duty of
confidentiality;
8.6.5 is known to Recipient prior to such disclosure;
8.6.6 is at any time developed by Recipient independently of any such
disclosure(s) from Discloser; or
8.6.7 is inherently disclosed in the use, lease, sale or other distribution
of any product or service licensed hereunder, or documentation
therefor, by or for the Recipient.
8.7 The restrictive covenants of this Section 8 regarding the use and disclosure
of Confidential Information shall survive the expiration, cancellation, or
termination of this Agreement.
Section 9 - Inventions
9.1 All discoveries, improvements, inventions, and trade secrets, made in
the performance of this Agreement solely by MICROSEMI personnel shall be the
<PAGE>
sole and exclusive property of MICROSEMI subject to the licenses granted herein
and MICROSEMI shall retain any and all fights to file any patent applications
thereon.
9.2 All discoveries, improvements, inventions, and trade secrets, made in the
performance of this Agreement solely by MOTOROLA personnel shall be the sole and
exclusive property of MOTOROLA subject to the licenses granted herein and
MOTOROLA shall retain any and all rights to file any patent applications
thereon.
9.3 All discoveries, improvements, inventions, and trade secrets, made in the
performance of this Agreement jointly by MOTOROLA personnel and MICROSEMI
personnel, shall be the property jointly of MOTOROLA and MICROSEMI, each party
having an equal and undivided one-half (1/2) interest therein.
9.4 In the case of each discovery, improvement or invention jointly owned by
MOTOROLA and MICROSEMI in accordance with Paragraph 9.3, MOTOROLA shall have the
first right of election to file patent applications in the United States and
other countries. MOTOROLA shall notify MICROSEMI in writing, at the earliest
practicable date, whether or not, and in which countries of the world, MOTOROLA
elects to file such patent application. MICROSEMI shall have the right to file
patent applications on such discovery, improvement or invention in all other
countries. Each party, at its own expense, shall cooperate fully with the filing
party as may be necessary for the proper preparation, filing and prosecution of
each such patent application and the maintenance, renewal and defense of each
patent covering such discovery, improvement or invention. The expense for
preparing, filing and prosecuting each joint application, and for issuance of
the respective patent shall be borne by the party which prepares and files the
application. Where such joint application for patent is filed by either party in
a country which requires the payment of annual taxes or annuities on a pending
application or on an issued patent, the filing party, prior to filing, shall
notify the other party, requesting the other party to indicate whether it will
agree to pay one-half (1/2) of such annual taxes or annuities. If, within sixty
(60) days after receiving such notice, the non-filing party fails to assume in
writing the obligation to pay its one-half (1/2) share of such annual taxes or
annuities, or if either party subsequently fails, within sixty (60) days of
demand, to continue such payments, it shall forthwith relinquish to the other
party, providing said other party continues such payments, its right, title and
interest to such application and patent, subject, however, to retention of a
paid-up, nonexclusive, nonassignable and irrevocable license, without the right
to grant sublicenses, in favor of the relinquishing party, to make, have made,
use, lease, sell, or otherwise dispose of apparatus and/or use or practice any
methods under said application and patent.
9.5 In the event that the filing party shall determine to abandon, or otherwise
not to prosecute, any jointly owned patent application, or not to maintain,
defend or renew any jointly owned patent, it shall notify the other party
thereof, in writing, at the earliest practicable date, and such other party
shall have the right, at its expense, to prosecute such application or to take
up such maintenance or defense, or prosecute such renewal, as the case may be.
The filing party agrees, at the other party's expense, to cooperate fully with
the other party to assist the other party in obtaining, maintaining, defending
and renewing such patent right hereunder. Thenceforth, the party exercising its
right under this Paragraph 9.5 shall be deemed "the filing party" for purposes
of Paragraphs 9.4 and 9.5.
9.6 Each party shall have the right to grant nonexclusive licenses under any
terms and conditions that it desires under each jointly owned patent application
or patent, provided that it shall have fulfilled its obligation, if any, to pay
its share of taxes or annuities imposed on such pending application or patent,
and such party shall retain any consideration that it may receive therefor
without having to account to the other joint owner. Each party consents to the
granting of such nonexclusive licenses by the other party, and agrees not to
assert any claim with respect to any such patent or application licensed by the
other party against the licensee or licensees thereunder for the terms of any
such license.
<PAGE>
9.7 The rights and obligation of this Section 9 regarding the ownership, filing,
prosecution, and maintenance of Inventions shall survive the expiration,
cancellation, or termination of this Agreement.
Section 10 - Warranty
10.1 MOTOROLA and MICROSEMI represent that they have the right to grant the
licenses of Section 2 hereof, and that the terms and conditions of this
Agreement do not violate their respective Articles of Incorporation or ByLaws
and do not conflict with any other agreements to which they are a party or by
which they are bound.
10.2 Each transferor warrants that the items of TECHNICAL INFORMATION
transferred hereunder shall be substantially the same as those then used by the
transferor in its own manufacturing operation.
Section 11 - Disclaimer of Warranty or Liability
11.1 Neither party represents or warrants that the manufacture, use, or other
disposition of LICENSED PRODUCT or use of TECHNICAL INFORMATION, UPDATE(S) or
IMPROVEMENT(S) is free of infringement of any third party patents, copyrights or
trade secrets.
11.2 Neither party warrants that the recipient party will be able to
successfully manufacture products based upon the TECHNICAL INFORMATION,
UPDATE(S). or IMPROVEMENT(S) transferred hereunder
11.3 NEITHER PARTY MAKES ANY WARRANTY AS TO THE ACCURACY, SUFFICIENCY, OR
SUITABILITY FOR THE OTHER'S USE OF ANY TECHNICAL INFORMATION OR ASSISTANCE
PROVIDED HEREUNDER FOR THE MANUFACTURE, OR THE YIELD FROM THE MANUFACTURE
THEREOF, OR FOR THE QUALITY OF SUCH PRODUCT MADE THEREBY, AND ASSUMES NO
RESPONSIBILITY OR LIABILITY FOR LOSS OR DAMAGES, WHETHER DIRECT, INDIRECT,
CONSEQUENTIAL, OR INCIDENTAL, WHICH MIGHT ARISE OUT OF THE OTHER'S USE THEREOF,
WHICH SHALL BE ENTIRELY AT THE USER'S RISK AND PERIL.
11.4 IN NO EVENT SHALL EITHER PARTY (OR ITS LICENSORS) BE LIABLE FOR
INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING FROM USE OF THE TECHNICAL
INFORMATION PROVIDED BY IT.
11.5 EACH PARTY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR
STATUTORY, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, WITH RESPECT TO ITEMS
PROVIDED BY IT.
Section 12 - Prohibited Subject Matter
Under no circumstances shall the parties hereto exchange or discuss with one
another any matter which is not relevant to the execution of the obligations of
this Agreement. For example, the parties shall not discuss or exchange
information relative to their specific customers, marketing policies or
activities, yield from manufacture, or pricing.
Section 13 - Publication
Neither party to this Agreement shall publicize the existence of this Agreement,
nor refer to the other party in connection with any product, promotion or
publication without the prior written approval of the other party. Neither party
to this Agreement shall disclose to any third party the terms and conditions of
this Agreement without the prior written approval of the other party except as
required by law, or by government regulation, requirement or order, or as may be
necessary to establish or assert its rights hereunder.
All notices to third parties and all other publicity concerning this Agreement
shall be jointly planned and coordinated by the parties. Neither party shall act
unilaterally in this regard without the prior written
<PAGE>
approval of the other party, which approval, however, shall not unreasonably
be withheld.
Section 14 - Contemporaneous Agreements
The parties acknowledge and agree that this Agreement is to be entered into
contemporaneously with the MOTOROLA - MICROSEMI POWERMITE(R) SERVICES AGREEMENT.
However, if for any reason the MOTOROLA - MICROSEMI POWERMITE(R) SERVICES
AGREEMENT is not signed and finalized and this Agreement is, this Agreement
shall be null and void and have no force and effect.
Section 15 - General Provisions
15.1 Nothing contained in this Agreement shall be construed as:
15.1.1 conferring any rights to use in advertising, publicity, or
other marketing activities any name, trademark, or other
designation of either party hereto, including any contraction,
abbreviation, or simulation of any of the foregoing, provided
such restriction shall not apply to device identification
numbers and descriptions and each party hereto agrees not to
use the existence of this Agreement in any marketing activity
without the express written approval of the other party; or
15.1.2 conferring by implication, estoppel, or otherwise upon either
party hereunder any license or other right except the licenses
and rights expressly granted hereunder to a party hereto; or
15.1.3 an obligation to bring or prosecute actions or suits against
third parties for infringement, or to secure and/or maintain
any of its intellectual property rights; or
15.1.4 limiting the rights which a party has outside the scope of
this Agreement.
15.2 All notices required or permitted to be given hereunder (except for notices
to be addressed to the Documentation Managers) shall be in writing and shall be
valid and sufficient if dispatched by certified mail, return receipt requested,
postage prepaid, in any post office in the United States, or in the case of
international delivery, dispatched by a delivery service providing a receipt of
delivery, addressed as follows:
If to MOTOROLA: If to MICROSEMI:
Motorola, Inc. Microsemi Corporation
5005 East McDowell Road 580 Pleasant Street
Phoenix, Arizona 85008 Watertown, Massachusetts 02172
Attn:[Confidential Information Omitted] Attn: [Confidential Information Omitted]
With a copy to:
Motorola, Inc. Microsemi Corporation
8220 East Roosevelt, Suite 3108 2830 Fairview Street
Building 3, Northwest Entrance Santa Ana, California 92704
Scottsdale, Arizona 85257 Attn: [Confidential Information Omitted]
Attn: [Confidential Information Omitted]
Either party may change its address by a notice given to the other party in the
manner set forth above. Notices given as herein provided shall be considered to
have been given seven (7) days after the mailing thereof.
15.3 Any failure or delay on the part of either party in the exercise of any
right or privilege hereunder shall not operate as a waiver thereof, nor shall
any single or partial exercise of any such right or privilege preclude other or
further exercise thereof or of any other right or privilege.
15.4 Nothing contained herein, or done in pursuance of this
Agreement, shall constitute the parties as entering upon a joint venture or
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
shall constitute either party hereto the agent for the other party for any
purpose or in any sense whatsoever.
15.5 If any provision, or part of any provision, of this Agreement, or the
attachments hereto, is invalidated by operation of law or otherwise, that
provision or part will, to that extent, be deemed omitted and the remainder of
this Agreement, or applicable attachment, will remain in full force and effect.
In place of any such invalid provision or part thereof, the parties undertake to
agree on a similar but valid provision the effect of which is as close as
possible to that of the invalid provision or part thereof.
15.6 MICROSEMI and MOTOROLA agree they will not in any form export, re-export,
resell, ship, or divert or cause to be exported, re-exported, resold, shipped or
diverted, directly or indirectly, any product or technical data or software
received hereunder, or the direct product of such technical data or software to
any country for which the United States Government or any agency thereof at the
time of export or re-export requires an export license or other governmental
approval without first obtaining such license or approval.
15.7 The captions used in this Agreement are for convenience only and are not to
be used in interpreting the obligations of the parties under this Agreement.
15.8 This Agreement and the performance of the parties hereunder shall be
construed in accordance with and governed by the law of the State of Illinois.
15.9 This Agreement including the Appendices attached hereto, and made a part
hereof, supersedes any prior agreements or understandings, written or otherwise,
between the parties relating to the subject matter of this Agreement. No
amendment or modification of this Agreement shall be valid or binding upon the
parties unless signed by their respective authorized officers.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of
the date below written.
MOTOROLA, INC. MICROSEMI USPD, INC.
SEMICONDUCTOR PRODUCTS SECTOR
By: /s/GREGORY L. WILLIAMS By: /s/PHILIP FREY, JR.
---------------------- --------------------
(Authorized Signature) (Authorized Signature)
Name: Gregory L. Williams Name: Philip Frey, Jr.
---------------------- --------------------
(Print Name) (Print Name)
Title: VP and GM Power Products Title: President
Date: 2-21-96 Date: 2-16-96
By: /s/JAMES GILLMAN By: /s/DAVID R. SONKSEN
---------------------- --------------------
(Signature) (Authorized Signature)
Name: James W. Gillman Name: David R. Sonksen
---------------------- --------------------
(Print Name) (Print Name)
Title: Senior Vice President Title: V.P.Finance
Patents, Trademarks and Licensing
Date: 2/26/96 Date: 2/26/96
<PAGE>
MOTOROLA - MICROSEMI POWERMITE(R) TECHNOLOGY AGREEMENT
APPENDIX A
TECHNICAL INFORMATION
The following TECHNICAL INFORMATION shall be transferred to MOTOROLA by
MICROSEMI under this Agreement:
A.1. MICROSEMI Process Specifications for POWERMITE(R) Production.
A.2. MICROSEMI Drawings for Raw Materials used in POWERMITE(R)
Assembly.
A.3. Samples of POWERMITE(R) devices manufactured by MICROSEMI.
A.4. Samples of POWERMITE(R) Assemblies at various stages in the
assembly process.
<PAGE>
MOTOROLA - MICROSEMI POWERMITE(R) TECHNOLOGY AGREEMENT
APPENDIX B
POWERMITE(R) PACKAGE SPECIFICATIONS
(Attached)
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
[DRAWING, SHEET 1 OF 3]
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
[DRAWING, SHEET 2 OF 3]
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
[DRAWING, SHEET 3 OF 3]
- --------------------------------------------------------------------------------
A portion has been omitted and filed separately with the Commission pursuant to
a request for confidential treatment.
<PAGE>
MOTOROLA - MICROSEMI POWERMITE(R) TECHNOLOGY AGREEMENT
APPENDIX C
MICROSEMI/MOTOROLA TRANSMITTAL RECORD
Date of Transmittal:
Transferring Company Name:
Attention Document Control Manager:
Address:
City, State, Zip:
The Confidential/Proprietary document(s) listed is/are transmitted in accordance
with the provisions of the MICROSEMI-MOTOROLA Agreement dated
ITEM REFERENCE # DESCRIPTION OF DOCUMENT/MATERIAL REV.#
- ------ ---------------- ------------------------------------ ---------
Received By: Transferred By:
(Receiving Company Representative) (Transferring Company
Representative)
(Title) (Title)
(Date) (Date)
Please return an original, signed copy of this Transmittal Record to:
Transferring Company Name:
Attention Document Control Manager:
Address:
City, State, ZIP:
<PAGE>
