<PAGE> 1
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 10-Q
(Mark One)
[X] Quarterly Report Under Section 13 or 15(d) of the Securities Exchange Act of
1934
For the Quarter Ended September 30, 1999
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 Number: 0-11674
LSI LOGIC CORPORATION
(Exact name of registrant as specified in its charter)
Delaware 94-2712976
(State of Incorporation) (I.R.S. Employer Identification Number)
1551 McCarthy Boulevard
Milpitas, California 95035
(Address of principal executive offices)
(408) 433-8000
(Registrant's telephone number)
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 months (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 [ ]
As of November 8, 1999 there were 148,725,266 of the registrant's Common Stock,
$.01 par value, outstanding.
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LSI LOGIC CORPORATION
Form 10-Q
For the Quarter Ended September 30, 1999
INDEX
<TABLE>
<CAPTION>
PAGE
NO.
----
<S> <C> <C>
PART I FINANCIAL INFORMATION
Item 1 Financial Statements
Consolidated Condensed Balance Sheets - September 30, 1999 and
December 31, 1998 3
Consolidated Condensed Statements of Operations - Three-Month
and Nine-Month Periods Ended September 30, 1999 and 1998 4
Consolidated Condensed Statements of Cash Flows - Nine-Month
Periods Ended September 30, 1999 and 1998 5
Notes to Consolidated Condensed Financial Statements 6
Item 2 Management's Discussion and Analysis of Results of Operations
and Financial Condition 19
PART II OTHER INFORMATION
Item 1 Legal Proceedings 32
Item 6 Exhibits and Reports on Form 8-K 32
</TABLE>
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PART I
ITEM 1. FINANCIAL STATEMENTS
LSI LOGIC CORPORATION
CONSOLIDATED CONDENSED BALANCE SHEETS
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- ------------
<S> <C> <C>
ASSETS
Cash and cash equivalents $ 185,977 $ 210,306
Short-term investments 271,010 81,220
Accounts receivable, less allowance for doubtful
accounts of $7,451 and $3,537 369,754 249,106
Inventories 217,489 181,440
Deferred tax assets 62,699 62,699
Prepaid expenses and other current assets 45,024 52,250
---------- ----------
Total current assets 1,151,953 837,021
---------- ----------
Property and equipment, net 1,297,180 1,486,256
Goodwill and other intangibles 305,485 332,779
Other assets 220,684 167,749
---------- ----------
Total assets $2,975,302 $2,823,805
========== ==========
LIABILITIES AND STOCKHOLDERS' EQUITY
Accounts payable $ 209,354 $ 195,228
Accrued salaries, wages and benefits 78,478 47,988
Other accrued liabilities 102,508 109,236
Income taxes payable 57,243 57,993
Current portion of long-term obligations 84,051 187,852
---------- ----------
Total current liabilities 531,634 598,297
---------- ----------
Long-term obligations and deferred taxes liabilities 811,049 695,797
---------- ----------
Minority interest in subsidiaries 6,019 5,238
---------- ----------
Commitments and contingencies -- --
Stockholders' equity:
Preferred shares; $.01 par value; 2,000 shares
authorized -- --
Common stock; $.01 par value; 450,000 shares
authorized; 147,311 and 143,867 shares outstanding 1,473 1,439
Additional paid-in capital 1,183,971 1,135,219
Retained earnings 342,369 368,378
Accumulated other comprehensive income 98,787 19,437
---------- ----------
Total stockholders' equity 1,626,600 1,524,473
---------- ----------
Total liabilities and stockholders' equity $2,975,302 $2,823,805
========== ==========
</TABLE>
See accompanying notes to unaudited consolidated condensed financial statements.
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LSI LOGIC CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS
(In thousands, except per share amounts)
(Unaudited)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------------------------------------------------------
1999 1998 1999 1998
----------- ----------- ----------- -----------
<S> <C> <C> <C> <C>
Revenues $ 539,959 $ 396,871 $ 1,504,588 $ 1,065,873
----------- ----------- ----------- -----------
Costs and expenses:
Cost of revenues 325,785 225,400 942,074 592,792
Research and development 71,878 79,301 223,447 210,158
Selling, general and administrative 66,881 61,146 191,153 158,747
Acquired in-process research and development -- 145,500 4,600 145,500
Restructuring of operations and other
non-recurring (benefits)/charges, net (7,934) 75,400 (2,063) 75,400
Amortization of intangibles 11,767 7,338 34,789 10,110
----------- ----------- ----------- -----------
Total costs and expenses 468,377 594,085 1,394,000 1,192,707
----------- ----------- ----------- -----------
Income/(loss) from operations 71,582 (197,214) 110,588 (126,834)
Interest expense (9,404) (6,028) (29,604) (6,203)
Interest income and other, net 7,006 (23,395) 11,201 (9,915)
----------- ----------- ----------- -----------
Income/(loss) before income taxes and cumulative
effect of change in accounting principle 69,184 (226,637) 92,185 (142,952)
Provision for/(benefits of) income taxes 17,260 (14,607) 26,420 6,283
----------- ----------- ----------- -----------
Income/(loss) before cumulative effect of change in
accounting principle 51,924 (212,030) 65,765 (149,235)
Cumulative effect of change in accounting
principle -- -- (91,774) --
----------- ----------- ----------- -----------
Net income/(loss) $ 51,924 $ (212,030) $ (26,009) $ (149,235)
=========== =========== =========== ===========
Basic earnings per share:
Income/(loss) before cumulative effect of change
in accounting principle $ 0.35 $ (1.48) $ 0.45 $ (1.04)
Cumulative effect of change in accounting
principle -- -- (0.63) --
----------- ----------- ----------- -----------
Net income/(loss) $ 0.35 $ (1.48) $ (0.18) $ (1.04)
=========== =========== =========== ===========
Diluted earnings per share:
Income/(loss) before cumulative effect of change
in accounting principle $ 0.33 $ (1.48) $ 0.43 $ (1.04)
Cumulative effect of change in accounting
Principle -- -- (0.60) --
----------- ----------- ----------- -----------
Net income/(loss) $ 0.33 $ (1.48) $ (0.17) $ (1.04)
=========== =========== =========== ===========
Shares used in computing per share amounts:
Basic 146,767 143,159 145,514 142,852
=========== =========== =========== ===========
Diluted 166,471 143,159 152,023 142,852
=========== =========== =========== ===========
</TABLE>
See accompanying notes to unaudited consolidated condensed financial statements.
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LSI LOGIC CORPORATION
CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS
(In thousands)
(Unaudited)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30,
-----------------------------
1999 1998
--------- ---------
<S> <C> <C>
Operating activities:
Net loss $ (26,009) $(149,235)
Adjustments:
Depreciation and amortization 269,267 152,321
Write-off of unamortized preproduction costs 97,356 --
Acquired in-process research and development 4,600 145,500
Non-cash restructuring (benefits)/charges, net (7,107) 75,400
Common stock issued for litigation -- 1,406
(Gain)/loss from stock investments (3,558) 14,338
Changes in:
Accounts receivable (111,017) (16,549)
Inventories (31,848) (4,225)
Prepaid expenses and other assets 9,655 (28,314)
Accounts payable 6,549 (43,923)
Accrued and other liabilities 24,308 (5,133)
--------- ---------
Net cash provided by operating activities 232,196 141,586
--------- ---------
Investing activities:
Purchases of debt and equity securities available-for-sale (353,776) (301,782)
Maturities and sales of debt and equity securities available-for-sale 188,756 594,546
Purchase of equity securities -- (7,216)
Purchases of property and equipment, net of retirements (104,795) (232,377)
Acquisition of a non-public technology company (6,779) --
Acquisition of Symbios, net of cash acquired -- (759,684)
Acquisition of stock from minority interest holders -- (599)
--------- ---------
Net cash used for investing activities (276,594) (707,112)
--------- ---------
Financing activities:
Proceeds from borrowings 345,000 694,682
Repayment of debt obligations (368,738) (100,628)
Debt issuance costs (9,488) --
Purchase of common stock under repurchase program -- (5,661)
Issuance of common stock, net 48,786 12,833
--------- ---------
Net cash provided by financing activities 15,560 601,226
--------- ---------
Effect of exchange rate changes on cash and cash equivalents 4,509 (4,902)
--------- ---------
(Decrease)/increase in cash and cash equivalents (24,329) 30,798
Cash and cash equivalents at beginning of period 210,306 114,087
--------- ---------
Cash and cash equivalents at end of period $ 185,977 $ 144,885
========= =========
</TABLE>
See accompanying notes to unaudited consolidated condensed financial statements.
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LSI LOGIC CORPORATION
NOTES TO CONSOLIDATED CONDENSED FINANCIAL STATEMENTS
(Unaudited)
NOTE 1 - BASIS OF PRESENTATION
In the opinion of the Company, the accompanying unaudited consolidated
condensed financial statements contain all adjustments (consisting only of
normal recurring adjustments except as noted below for unamortized preproduction
as discussed in Note 9, acquired in-process research and development as
discussed in Note 3, and the restructuring expenses as discussed in Note 5
necessary to present fairly the financial information included therein. While
the Company believes that the disclosures are adequate to make the information
not misleading, it is suggested that these financial statements be read in
conjunction with the audited consolidated financial statements and accompanying
notes included in the Company's Annual Report on Form 10-K/A for the year ended
December 31, 1998.
On June 22, 1999, the Company completed a merger of Stealth Acquisition
Corporation, a wholly-owned subsidiary of the Company, with SEEQ Technology,
Inc. ("SEEQ") in a transaction accounted for as a pooling of interests, and SEEQ
became a wholly owned subsidiary of the Company. All financial information has
been restated retroactively to reflect the combined operations of the Company
and SEEQ as if the merger had occurred at the beginning of the earliest period
presented (see Note 2). Prior to the merger, SEEQ's fiscal year-end was the last
Sunday in September of each year whereas the Company operates on a year ending
on December 31.
For financial reporting purposes, the Company reports on a 13 or 14 week
quarter with a year ending December 31. For presentation purposes, the
consolidated condensed financial statements refer to the quarter's calendar
month end for convenience. The results of operations for the quarter ended
September 30, 1999 are not necessarily indicative of the results to be expected
for the full year.
On April 14, 1999, the Company acquired all of outstanding capital stock
of ZSP Corporation. ("ZSP") in a merger transaction accounted for as a purchase.
Accordingly, the results of operations of ZSP and estimated fair value of assets
acquired and liabilities assumed were included in the Company's consolidated
condensed financial statements as of April 14, 1999, the effective date of the
purchase, through the end of the period (see Note 3). There were no significant
differences between the accounting policies of the Company and ZSP.
In April 1998, the Accounting Standards Executive Committee ("AcSEC")
released Statement of Position ("SOP") No. 98-5, "Reporting on the Costs of
Start-up Activities." The SOP is effective for fiscal years beginning after
December 15, 1998 and requires companies to expense all costs incurred or
unamortized in connection with start-up activities. Accordingly, the Company
expensed the unamortized preproduction balance of $92 million associated with
the Gresham manufacturing facility, net of tax, on January 1, 1999 and has
presented it as a cumulative effect of a change in accounting principle in
accordance with SOP No. 98-5.
The preparation of financial statements in conformity with generally
accepted accounting principles requires management to make estimates and
assumptions that affect the reported amounts of assets and liabilities and
disclosure of contingent assets and liabilities at the date of the consolidated
condensed financial statements and the reported amounts of revenues and expenses
during the reported period. Actual results could differ from those estimates.
Certain items previously reported in specific financial statement captions
have been reclassified to conform with the 1999 presentation.
One customer represented 11% and 10% of the Company's consolidated
revenues for the three and nine months ended September 30, 1999, respectively.
In the Storage Systems segment, three customers represented 30%, 28% and 14% of
Storage Systems revenues, respectively, during the three months ended September
30, 1999. There were four customers, representing 29%, 25%, 15% and 10% of our
Storage Systems revenues, respectively, during
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the nine months ended September 30, 1999. In the Semiconductor segment, there
were no customers who represented 10% or more of our semiconductor revenues for
the three and nine months ended September 30, 1999.
NOTE 2 - ACQUISITION OF SEEQ
As discussed in Note 1, on June 22, 1999, the Company completed a merger
with SEEQ. SEEQ was formed in January 13, 1981 to engage in the development,
production and sale of state-of-the-art, high technology semiconductor devices.
The stock for stock transaction was approved by the shareholders of SEEQ. As a
result of the merger, the separate existence of SEEQ ceased. Under the terms of
the Agreement and Plan of Reorganization and Merger, SEEQ's shareholders
received 0.0759 of a share of the Company's common stock for each SEEQ share.
Accordingly, the Company issued 2.5 million shares of its common stock for all
the outstanding shares of SEEQ common stock. Additionally, outstanding options
to acquire SEEQ common stock were converted to options to acquire 0.4 million
shares of the Company's common stock.
The merger was accounted for as a pooling of interests. Accordingly, the
Company's financial statements have been restated retroactively to include the
financial results of SEEQ for all periods presented. SEEQ's results of
operations were insignificant to the combined financial results (less than 3% by
income statement line item for the nine months ended September 30, 1999), and
accordingly, separate results of operations of SEEQ and LSI are not presented.
Adjustments to conform accounting policies of SEEQ to those of LSI were
not significant to the combined financial results. There were no inter-company
transactions between the two companies for the periods presented.
Restructuring and merger related expenses associated with the SEEQ merger:
In connection with the merger with SEEQ on June 22, 1999, the Company
recorded approximately $2.9 million in restructuring charges and $5.4 million in
merger related expenses which included $0.5 million recorded by SEEQ in the
first quarter of 1999. The merger expenses related primarily to investment
banking and other professional fees directly attributable to the merger with
SEEQ. The restructuring charge was comprised of $1.9 million in write-downs of
fixed assets which were duplicative to the combined company, $0.5 million of
exit costs relating to non-cancelable building lease contracts and $0.5 million
provision for severance costs related to the involuntary termination of certain
employees. The exit costs and employee severance costs were recorded in
accordance with Emerging Issues Task Force ("EITF") No. 94-3, "Liability
Recognition for Certain Employee Termination Benefits and Other Costs to Exit an
Activity." The fixed and other assets write-downs were recorded in accordance
with Statement of Financial Accounting Standards ("SFAS") No. 121, "Accounting
for the Impairment of Long-Lived Assets and for Long-Lived Assets to be Disposed
of." The restructuring actions as outlined by the restructuring plan are
intended to be completed by June 30, 2000, one year from the date the reserve
was taken. Approximately $0.5 million of severance were paid to three employees
terminated during the quarter.
The following table sets forth the SEEQ restructuring reserves as of June
22, 1999, the acquisition date, and activity against the reserve since then:
(In thousands)
<TABLE>
<CAPTION>
BALANCE BALANCE BALANCE
6/22/99 UTILIZED 6/30/99 UTILIZED 9/30/99
------- -------- ------- -------- -------
<S> <C> <C> <C> <C> <C>
Write-down of fixed assets....................... $1,854 $(1,854) $ -- $ -- $ --
Noncancelable building lease contracts .......... 490 -- 490 -- 490
Payments to employees for severance (a) ......... 516 -- 516 (516) --
------- ------- ------- ------- -------
Total.................................. $2,860 $(1,854) $ 1,006 $ (516) $ 490
======= ======= ======= ======= =======
</TABLE>
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(a) The amount utilized represents cash payments related to the severance
of 3 employees in Q3, 1999.
NOTE 3 - ACQUISITION OF ZSP
As discussed in Note 1, on April 14, 1999, the Company acquired all of
outstanding capital stock of ZSP, a semiconductor company without a fabrication
facility that designs and markets programmable Digital Signal Processors
("DSPs"). The acquisition was accounted for as a purchase. Accordingly, the
results of operations of ZSP and estimated fair value of assets acquired and
liabilities assumed were included in the Company's consolidated condensed
financial statements as of April 14, 1999, the effective date of the purchase,
through the end of the period. There were no significant differences between the
accounting policies of the Company and ZSP.
The Company paid approximately $7 million in cash which included direct
acquisition costs of $0.6 million for investment banking, legal and accounting
fees in addition to liabilities assumed of $4.3 million. The total purchase
price of $11.3 million was allocated to the estimated fair value of assets
acquired and liabilities assumed based on independent appraisals, where
appropriate, and management estimates as follows:
<TABLE>
<CAPTION>
(In thousands)
<S> <C>
Fair value of tangible net liabilities $ (301)
In-process research and development 4,600
Other current technology 2,600
Excess of purchase price over net assets acquired 4,370
--------
$ 11,269
========
</TABLE>
The Company accrued approximately $0.7 million of exit costs for a
non-cancelable building lease contract and to prepare the building for sublease.
The exit costs were accrued as a liability assumed in the purchase price
allocation in accordance with EITF No. 95-3, "Recognition of Liabilities in
Connection with a Purchase Business Combination." The Company expects no other
additional liabilities that may result in an adjustment to the allocation of the
purchase price. There were no significant adjustments made to the reserve during
the three and nine months ended September 30, 1999.
In-process research and development:
In connection with the purchase of ZSP, the Company recorded a $4.6
million charge to in-process research and development ("IPR&D") during the
second quarter of 1999. The amount was determined by identifying research
projects for which technological feasibility had not been established and no
alternative future uses existed. The Company acquired ZSP's in-process DSP
research and development project that was targeted at the telecommunications
market. This product was being developed specifically for voice over net or
voice over internet protocol applications and was intended to have substantial
incremental functionality, greatly improved speed and a wider range of
interfaces than ZSP's current technology.
The value of the one project identified to be in progress was determined
by estimating the future cash flows from the project once commercially feasible,
discounting the net cash flows back to their present value and then applying a
percentage of completion to the calculated value. The percentage of completion
for the project was determined using milestones representing management's
estimate of effort, value added and degree of difficulty of the portion of the
project completed as of April 14, 1999, as compared to the remaining research
and development to be completed to bring the project to technical feasibility.
The development process was grouped into three phases with each phase containing
between one and five milestones. The three phases were (i) researching the
market requirements and the engineering architecture and feasibility studies,
(ii) design and verification, and (iii) prototyping and testing the product
(both internal and customer testing). Development of ZSP's digital signal
processor project started in May 1998. As of April 14, 1999, the Company
estimated that the project was 65% complete.
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However, development of the technology remains a substantial risk to the
Company due to factors including the remaining effort to achieve technical
feasibility, rapidly changing customer markets and competitive threats from
other companies. Additionally, the value of other intangible assets acquired may
become impaired. Company management believes that the IPR&D charge of $4.6
million is valued consistently with the SEC staff's view regarding valuation
methodologies. There can be no assurance, however, that the SEC staff will not
take issue with any assumptions used in the Company's valuation model and
require the Company to revise the amount allocated to IPR&D.
Useful life of intangible assets:
The amount allocated to current technology and residual goodwill is being
amortized over their estimated weighted average useful life of seven years using
a straight-line method.
NOTE 4 - LICENSE AGREEMENT
The Company and Wafer Technology (Malaysia) Sdn. Bhd. ("WTM") have a
technology transfer agreement under which the Company grants licenses to WTM
with respect to certain of the Company's wafer fabrication technologies and
provides associated manufacturing training and related services. In exchange,
the Company receives cash and equity consideration valued at $120 million over
three years for which transfers and obligations of the Company are scheduled to
occur. During the second and third quarters of 1999, the Company transferred
technology to WTM valued at $3 million and $6 million respectively. These
amounts were recorded as an offset to the Company's research and development
expenses. In addition, the Company provided engineering training during the
third quarter of 1999 with a value of $1 million. The amount was recorded as an
offset to cost of sales. During the nine months ended September 30, 1999, the
Company billed a total of $10 million, $9 million of which was recorded as an
offset to the Company's research and development expenses and $1 million to cost
of sales.
NOTE 5 - 1998 RESTRUCTURING
1998 restructuring reserve activity:
During the third quarter of 1999, the Company completed the activities
underlying the restructuring plan which was originally established in the third
quarter of 1998. During the three month period ended September 30, 1999, the
Company utilized $2.4 million of restructuring reserves which reflected
severance payments of $1.2 million for 8 employees terminated during the quarter
in the U.S., Europe and Korea, $1.3 million for lease termination costs
primarily in the U.S., Europe and Japan, and $0.2 million for manufacturing
facility decommissioning costs in Japan, offset in part by currency translation
adjustments of $0.3 million.
During the quarter, the Company determined that $7.9 million of the
restructuring reserve originally established in the third quarter of 1998 would
not be utilized because of a change in management's estimate of the reserve
requirements. The amount consisted of the following:
- - - $2.8 million of excess severance reserves in Japan and Europe;
- - - $3.8 million of lease termination and non-cancelable purchase commitment
reserves primarily in U.S. and Europe;
- - - $1.3 million of other exit costs and manufacturing facility
decommissioning costs primarily in the U.S. and Japan and translation
adjustments.
The change in management estimates of the reserve requirements stemmed
primarily from the following factors:
- - - A significant increase in the requirement for manufacturing capacity to
meet expected sales growth which resulted in retention of certain
employees originally targeted for termination of employment and in
reversal of decommissioning costs as a result of retention of a U.S.
operations facility originally targeted for sale; and
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- - - The Company's ability to exit lease commitments and non-cancelable
purchase commitments more favorably than originally anticipated in the
U.S. and Europe.
Accordingly, the restructuring reserve reversal was included in the
determination of income from operations for the three month and nine month
periods ended September 30, 1999. The nine month period ended September 30, 1999
also included $2.5 million of restructuring reserve reversal recorded in the
first quarter of 1999 due to a change in management's estimate of the reserve
requirements in the U.S., Europe and Japan.
Description of 1998 restructuring:
The Company remains committed to improving profitability and strengthening
competitiveness. As a result of identifying opportunities to streamline
operations and maximize the integration of Symbios, Inc. ("Symbios") acquired on
August 6, 1998 (see Note 6) into the Company's operations, the Company's
management, with the approval of the Board of Directors, committed itself to a
restructuring plan and recorded a $75.4 million restructuring charge in the
third quarter of 1998. The action undertaken included a worldwide realignment of
manufacturing capacity, the consolidation of certain design centers and
administrative offices, and a streamlining of the Company's overhead structure
to reduce operating expenses. The restructuring charge excluded any integration
costs relating to Symbios. As discussed in Note 6 of Notes to the Unaudited
Consolidated Condensed Financial Statements, integration costs relating to
Symbios were accrued as a liability assumed in the purchase in accordance with
EITF No. 95-3, "Recognition of Liabilities in Connection with a Purchase
Business Combination."
Restructuring costs had included $37.2 million related primarily to fixed
assets impaired as a result of the decision to close a manufacturing facility in
Tsukuba, Japan by the third quarter of 1999; $4.7 million for termination of
leases and maintenance contracts primarily in the U.S. and Europe; $1.7 million
for non-cancelable purchase commitments primarily in Europe; $13.1 million in
fixed asset and other asset write-downs primarily in the U.S., Japan and Europe;
approximately $2.4 million in other exit costs, which resulted principally from
the consolidation and closure of certain design centers, sales facilities and
administrative offices primarily in the U.S. and Europe; and work force
reduction costs of $16.3 million.
Other exit costs included $0.9 million related to payments made for early
lease contract terminations and the write-down of surplus assets to their
estimated realizable value; $0.7 million for the write-off of excess licenses
for closed locations in Europe and $0.8 million of other exit costs associated
with the consolidation of design centers worldwide.
The workforce reduction costs primarily included severance costs related
to involuntary termination of employment for approximately 900 employees from
manufacturing in Japan, and engineering, sales, marketing and finance personnel
located primarily in the U.S., Japan and Europe. The fair value of assets
determined to be impaired in accordance with the guidance for assets to be held
and used in SFAS No. 121, "Accounting for the Impairment of Long-Lived Assets
and for Long-Lived Assets to be Disposed of," were the result of independent
appraisals and use of management estimates. Severance costs and other above
noted exit costs were determined in accordance with EITF No. 94-3, "Liability
Recognition for Certain Employee Termination Benefits and Other Costs to Exit an
Activity."
The following table sets forth the Company's 1998 restructuring reserves
as of December 31, 1998 and activity against the reserve for three and nine
month periods ended September 30, 1999:
<TABLE>
<CAPTION>
(In thousands)
FOR THREE MONTHS ENDED FOR NINE MONTHS ENDED
SEPTEMBER 30, 1999 SEPTEMBER 30, 1999
----------------------------------- ----------------------------------
BALANCE RESERVE RESERVE BALANCE
12/31/98 UTILIZED REVERSAL UTILIZED REVERSAL 9/30/99
-------- -------- -------- -------- -------- -------
<S> <C> <C> <C> <C> <C> <C>
Write-down of manufacturing facility (a).......... $ 1,500 $ (210) $ (190) $ (210) $ (1,290) $ --
Other fixed asset related charges................. -- -- -- -- -- --
</TABLE>
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<TABLE>
<S> <C> <C> <C> <C> <C> <C>
Payments to employees for severance (b) ........... 11,600 (1,168) (2,832) (7,948) (3,652) --
Lease terminations and maintenance contracts (c) .. 4,600 (1,340) (2,260) (2,257) (2,343) --
Noncancelable purchase commitments ................ 1,600 -- (1,520) (80) (1,520) --
Other exit costs .................................. 1,200 -- (220) (450) (750) --
Cumulative currency translation adjustment ........ 1,512 300 (912) (600) (912) --
-------- -------- -------- -------- -------- ---------
Total ................................... $ 22,012 $ (2,418) $ (7,934) $(11,545) $(10,467) $ --
======== ======== ======== ======== ======== =========
</TABLE>
(a) The $1.5 million balance at 12/31/98 for the write-down of the
facility and the amount utilized related to machinery and equipment
decommissioning costs in Japan.
(b) The amount utilized in the third quarter of 1999 consisted of $1.2
million of cash payments related to the severance of approximately
358 employees since 12/31/98 (approximately 8 in Q3 1999 in the U.S.,
Europe and Korea.)
(c) The amount utilized in the third quarter of 1999 consisted of $1.3
million of lease termination costs primarily in the U.S., Europe and
Japan.
NOTE 6 - INTEGRATION OF SYMBIOS
On August 6, 1998, the Company completed the acquisition of all of the
outstanding capital stock of Symbios from Hyundai Electronics America ("HEA").
HEA is a majority-owned subsidiary of Hyundai Electronics Industries Co., Ltd.
("HEI"), a Korean corporation. The transaction was accounted for as a purchase,
and accordingly, the results of operations of Symbios and estimated fair value
of assets acquired and liabilities assumed were included in the Company's
consolidated financial statements as of August 6, 1998, the effective date of
the purchase, through the end of the period. There were no significant
differences between the accounting policies of the Company and Symbios. The
allocation of the purchase price was disclosed in the Report on Form 10K/A for
the year ended December 31, 1998 previously filed with the Securities and
Exchange Commission.
The Company has taken certain actions to combine the Symbios operations
with those of LSI Logic and, in certain instances, to consolidate duplicative
operations. Adjustments to accrued integration costs related to Symbios were
recorded as an adjustment to the fair value of net assets in the purchase price
allocation. The Company finalized the integration plan as of December 31, 1998.
Accrued integration charges included $4 million related to involuntary
separation and relocation benefits for approximately 200 Symbios employees and
$1.4 million in other exit costs primarily relating to the closing of Symbios
sales offices and the termination of certain contractual relationships. The
Symbios integration related accruals were based upon management's current
estimate of integration costs and were in accordance with EITF No. 95-3,
"Recognition of Liabilities in Connection with a Purchase Business Combination."
During the third quarter of 1999, the Company completed the activities
underlying the integration plan outlined above. The following table sets forth
the Company's Symbios integration reserve as of December 31, 1998 and activity
against the reserve for the three and nine month periods ended September 30,
1999:
(In thousands)
<TABLE>
<CAPTION>
BALANCE BALANCE
12/31/98 UTILIZED 9/30/99
-------- --------- --------
<S> <C> <C> <C>
Payments to employees for severance and relocation (a) ... $ 2,360 $(2,360) $ --
Other exit costs (b) ..................................... 1,002 (1,002) --
------- ------- --------
Total .......................................... $ 3,362 $(3,362) $ --
======= ======= ========
</TABLE>
(a) The amount utilized represents cash payments related to the
severance and relocation of 199 employees since December 31, 1998
(approximately $736K for 39 employees in the third quarter of 1999).
(b) The amount utilized reflects $528K in the third quarter of 1999.
No significant adjustments were made to the reserve during the period
presented.
11
<PAGE> 12
Pro forma results
The following pro forma summary is provided for illustrative purposes only
and is not necessarily indicative of the consolidated results of operations for
future periods or that actually would have been realized had the Company and
Symbios been a consolidated entity during the period presented. The summary
combines the results of operations as if Symbios had been acquired as of January
1, 1998.
The summary includes the impact of certain adjustments such as goodwill
amortization, changes in depreciation, estimated changes in interest income
because of cash outlays associated with the acquisition of Symbios and
elimination of certain notes receivable assumed to be repaid as of the beginning
of the periods presented, changes in interest expense because of the new debt
entered into with the purchase (see discussion in Note 10) and the repayment of
certain debt assumed to be repaid as of the beginning of the periods presented.
Additionally, in-process research and development of $145.5 million has been
excluded from the period presented as it arose from the acquisition of Symbios.
The charge of $75.4 million did not relate to the acquisition of Symbios (see
Note 5) and accordingly was included in the preparation of the pro forma
results.
(in thousands, except per-share amounts)
<TABLE>
<CAPTION>
NINE MONTHS ENDED
SEPTEMBER 30, 1998
------------------
(UNAUDITED)
<S> <C>
Revenue $ 1,424,229
Net loss $ (34,678)
Basic EPS $ (0.24)
Diluted EPS $ (0.24)
</TABLE>
NOTE 7 - INVESTMENTS
The Company classifies its debt and equity investments into an
available-for-sale category and values them at fair value in accordance with
SFAS No. 115, "Accounting for Certain Investments in Debt and Equity
Securities," with unrealized gains and losses, net of taxes, reported in
shareholders' equity until realized. For all investment securities, unrealized
losses that are other than temporary are recognized in net income. Gains and
losses on securities sold are based on the specific identification method and
are reflected in net income. The Company currently does not actively trade
securities.
As of September 30, 1999 and December 31, 1998, the Company held $55
million and $45 million of debt securities, respectively, that were classified
as cash equivalents and $271 million and $81 million of debt and equity
securities, respectively, that were classified as short-term investments on the
Company's consolidated balance sheet. Debt securities consisted primarily of
U.S. and foreign corporate debt securities, commercial paper, auction rate
preferred stock, and U.S., municipal and foreign government and agency
securities. Debt securities approximated fair market value at September 30, 1999
and December 31, 1998, and thus no unrealized gains or losses were recorded for
these securities. The contract maturities of these securities were within one
year. Realized gains and losses for these securities were not significant during
the three and nine month periods ended September 30, 1999 and 1998.
As of September 30, 1999, the Company held marketable equity securities
with an aggregate carrying value of $86 million, $25 million of which were
classified as short-term investments on the Company's consolidated balance
sheet. The remaining balance was included in other long-term assets. In the
third quarter of 1999, the Company adopted a program of regular selling of
marketable equity securities. There were no significant investments in
marketable equity securities as of December 31, 1998. Total unrealized gains of
$53 million, net of the related tax effect of $28 million, on these equity
securities were included in accumulated other comprehensive income as of
September 30, 1999.
12
<PAGE> 13
During the third quarter of 1999, the Company sold equity securities for $2.5
million on the open market, realizing a pre-tax gain of approximately $2.2
million. Gross realized gains on available-for-sale securities for the nine
month period ended September 30, 1999 were approximately $3.6 million.
The Company wrote down to estimated fair value two long-term
non-marketable equity investments during the third quarter of 1998. They
consisted of a $12 million write-down of the Company's 2.4% equity investment in
a non-public foundry company and a $2.5 million write-down of the Company's
equity investment in a non-public technology company. The estimated fair values
established for the investments was determined by use of management estimates.
The decline in value of the investments was not considered by management to be
temporary.
NOTE 8 - DERIVATIVE FINANCIAL INSTRUMENTS
The Company has foreign subsidiaries which operate and sell the Company's
products in various global markets. As a result, the Company is exposed to
changes in foreign currency exchange rates and interest rates. The Company
utilizes various hedge instruments, primarily forward contract, interest rate
swap and currency option contracts, to manage its exposure associated with firm
intercompany and third-party transactions and net asset and liability positions
denominated in non-functional currencies. The Company does not hold derivative
financial instruments for speculative or trading purposes. As of September 30,
1999 and December 31, 1998, there were no interest rate swap or currency swap
contracts outstanding.
The Company enters into forward contracts and currency swaps to hedge firm
intercompany asset and liability positions denominated in non-functional
currencies. The following table summarizes by major currency the forward
exchange contracts outstanding as of September 30, 1999 and December 31, 1998.
The buy amount represents the U.S. dollar equivalent of commitments to purchase
foreign currencies, and the sell amount represents the U.S. dollar equivalent of
commitments to sell foreign currencies. Foreign currency amounts were translated
at rates current at September 30, 1999 and December 31, 1998.
<TABLE>
<CAPTION>
(In thousands)
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- ------------
<S> <C> <C>
Buy/(Sell):
Japanese Yen $ 20,575 $ --
Japanese Yen (25,335) --
</TABLE>
These forward contracts are considered identifiable hedges and realized
and unrealized gains and losses are deferred until settlement of the underlying
commitments. They are recorded as other gains or losses when the underlying
exposure materializes or the hedged transaction is no longer expected to occur.
Deferred foreign gains and losses were not significant at September 30, 1999 and
December 31, 1998. Foreign currency transaction gains and losses included in
interest income and other were insignificant for the three and nine month
periods ended September 30, 1999 and 1998.
Currency option contracts were treated as hedges of third-party yen
revenue exposures. At September 30, 1999, total outstanding purchased currency
option contracts were $12 million. These contracts expire in January 2000. At
December 31, 1998, total outstanding purchased currency option contracts were
$130 million. These contracts expired quarterly through June 1999. The realized
and unrealized gains and losses and option premiums are deferred until the
exposure underlying the option is recorded. The deferred gains and losses were
not significant at September 30, 1999 and December 31, 1998. The deferred
premiums on all outstanding options were $0.4 million as of September 30, 1999
and $6 million as of December 31, 1998. The deferred premiums were included in
other current assets.
On August 5, 1998, the Company recognized a loss of $1.5 million from the
decision to close interest rate swap contracts which converted the interest
associated with yen borrowings by LSI Logic Japan Semiconductor, Inc., a
13
<PAGE> 14
wholly owned subsidiary of the Company ("JSI"), from adjustable to fixed rates.
The contracts were closed because the underlying debt was repaid as discussed in
Note 10. Current period gains and losses associated with the interest rate swaps
are included in interest expense, or as other gains and losses at such time as
related borrowings are terminated.
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities." SFAS No.
133 requires that an entity recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those instruments
at fair value. It further provides criteria for derivative instruments to be
designated as fair value, cash flow and foreign currency hedges and establishes
respective accounting standards for reporting changes in the fair value of the
instruments. The statement is effective for all fiscal quarters of fiscal years
beginning after June 15, 2000 pursuant to the issuance of SFAS No. 137,
"Accounting for Derivative Instruments and Hedging Activities-Deferral of the
Effective Date of FASB statement No. 133", which deferred the effective date of
SFAS No. 133 by one year. Upon adoption of SFAS No. 133, the Company will be
required to adjust hedging instruments to fair value in the balance sheet and
recognize the offsetting gain or loss as transition adjustments to be reported
in net income or other comprehensive income, as appropriate, and presented in a
manner similar to the cumulative effect of a change in accounting principle.
While the Company believes the adoption of this statement will not have a
significant effect on the Company's results of operations, the impact of the
adoption of SFAS No. 133 as of the effective date cannot be reasonably estimated
at this time.
NOTE 9 - BALANCE SHEET INFORMATION
<TABLE>
<CAPTION>
(In thousands)
SEPTEMBER 30, DECEMBER 31,
1999 1998
------------- --------------
<S> <C> <C>
Inventories:
Raw materials $ 40,300 $ 32,347
Work-in-process 124,903 53,042
Finished Goods 52,286 96,051
--------- -----------
Total $217,489 $181,440
========= ===========
</TABLE>
The Company had $97 million of unamortized preproduction engineering costs
at December 31, 1998 associated with the construction of a new manufacturing
facility in Gresham, Oregon. This new facility became operational as of December
1, 1998, at which time capitalized preproduction began to be amortized over the
expected useful life of the manufacturing technology of approximately four
years. In April 1998, the AcSEC released SOP No. 98-5, "Reporting on the Costs
of Start-up Activities." SOP No. 98-5 is effective for fiscal years beginning
after December 15, 1998 and requires companies to expense all costs incurred or
unamortized in connection with start-up activities. Accordingly, the Company has
expensed the unamortized preproduction balance of $92 million, net of tax, on
January 1, 1999 and has presented it as a cumulative effect of a change in
accounting principle in accordance with SOP No. 98-5.
NOTE 10 - DEBT
During March 1999, the Company issued $345 million of 4 1/4% Convertible
Subordinated Notes (the "Convertible Notes") due in 2004. The Convertible Notes
are subordinated to all existing and future senior debt, are convertible 60 days
following issuance into shares of the Company's common stock at a conversion
price of $31.353 per share and are redeemable at the option of the Company, in
whole or in part, at any time on or after March 20, 2002. Each holder of the
Convertible Notes has the right to cause the Company to repurchase all of such
holder's Convertible Notes at 100% of their principal amount plus accrued
interest upon the occurrence of certain events and in certain circumstances.
Interest is payable semiannually. The Company paid approximately $9.5 million
for debt issuance costs related to the Convertible Notes. The debt issuance
costs are being amortized using the interest method. The net proceeds of the
Convertible Notes were used to repay existing debt obligations as described
below.
14
<PAGE> 15
On August 5, 1998, the Company entered into a credit agreement with ABN
AMRO Bank N.V. ("ABN AMRO"). The credit agreement was restated and superseded by
the Amended and Restated Credit Agreement dated as of September 22, 1998 by and
among the Company, JSI, ABN AMRO and thereafter syndicated to a group of lenders
determined by ABN AMRO and the Company. The credit agreement consisted of two
credit facilities: a $575 million senior unsecured reducing revolving credit
facility ("Revolver"), and a $150 million senior unsecured revolving credit
facility ("364 day Facility").
On August 5, 1998, the Company borrowed $150 million under the 364 day
Facility and $485 million under the Revolver. On December 22, 1998, the Company
borrowed an additional $30 million under the Revolver. The credit facilities
allowed for borrowings at adjustable rates of LIBOR/TIBOR with a 1.25% spread.
As of March 31, 1999 the spread changed to 1%. Interest payments are due
quarterly. The 364 day Facility expired on August 3, 1999 by which time
borrowings outstanding were fully paid in accordance with the credit agreement.
The Revolver is for a term of four years with the principal reduced quarterly
beginning on December 31, 1999. The Revolver includes a term loan sub-facility
in the amount of 8.6 billion yen made available to JSI over the same term. The
yen term loan sub-facility is for a period of four years with no required
payments until it expires on August 5, 2002. Pursuant to the restated credit
agreement, on August 30, 1998, JSI repaid its existing 11.4 billion yen ($79
million) credit facility and borrowed 8.6 billion yen ($83 million at September
30, 1999) bearing interest at adjustable rates. In March of 1999, the Company
repaid the full $150 million outstanding under the 364 day Facility and $186
million outstanding under the Revolver primarily using the proceeds from the
Convertible Notes as described above. Borrowings outstanding under the Revolver
including the yen sub-facility were $382 million as of September 30, 1999. As of
September 30, 1999, the interest rate for the Revolver and the yen sub-facility
were 6.31% and 1.12%, respectively. The debt issuance costs associated with
these debt facilities were not significant.
In accordance with the terms of its existing credit agreement, the Company
must comply with certain financial covenants related to profitability, tangible
net worth, liquidity, senior debt leverage, debt service coverage and
subordinated indebtedness. As of September 30, 1999, the Company was in
compliance with these covenants.
NOTE 11 - RECONCILIATION OF BASIC AND DILUTED EARNINGS PER SHARE
The following is a reconciliation of the numerators and denominators of
the basic and diluted per share computations as required by SFAS No. 128,
"Earnings Per Share ("EPS")."
<TABLE>
<CAPTION>
(In thousands except for per share amounts)
THREE MONTHS ENDED SEPTEMBER 30,
----------------------------------------------------------------------------
1999 1998
------------------------------------- -----------------------------------
PER-SHARE PER-SHARE
INCOME* SHARES+ AMOUNT INCOME* SHARES+ AMOUNT
---------- ------- --------- --------- -------- ---------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS:
Net income available to common
Stockholders.............................. $ 51,924 146,767 $0.35 $(212,030) 143,159 $(1.48)
--------- ---------
Effect of dilutive securities:
Stock options ................................ -- 8,700 -- -- -- --
4 1/4% Convertible Subordinated Notes ........ 2,749 11,004 -- -- -- --
Diluted EPS:
Net income available to common
Stockholders.............................. $ 54,673 166,471 $0.33 $(212,030) 143,159 $(1.48)
--------- ---------
</TABLE>
- - ---------------------------------------
*Numerator--+ Denominator
Options to purchase 1,947,413 shares were outstanding at September 30,
1999 but were not included in the calculation of diluted shares for the three
month period ended September 30, 1999 because the exercise prices were greater
than the average market price of common shares. The exercise price of these
options ranged from $55.06 to $58.88 at September 30, 1999. Options to purchase
17,416,099 shares were outstanding at September 30, 1998
15
<PAGE> 16
but were not included in the calculation of diluted shares for the three month
period ended September 30, 1998 because of their antidilutive effect on earnings
per share as the Company incurred a loss for the quarter.
<TABLE>
<CAPTION>
(In thousands except for per share amounts)
NINE MONTHS ENDED SEPTEMBER 30,
-----------------------------------------------------------------------------------------
1999 1998
----------------------------------------- ------------------------------------------
PER-SHARE PER-SHARE
INCOME* SHARES+ AMOUNT INCOME* SHARES+ AMOUNT
---------- ------- --------- --------- ------- ---------
<S> <C> <C> <C> <C> <C> <C>
Basic EPS:
Net income before cumulative effect of
change in accounting principle .... $ 65,765 145,514 $0.45 $(149,235) 142,852 $(1.04)
-------- -------
Cumulative effect of change in
accounting principle .............. (91,774) 145,514 $(0.63) -- -- --
--------
Net (loss)/ income available
to common stockholders ............ (26,009) 145,514 $(0.18) (149,235) 142,852 $(1.04)
-------- -------
Effect of dilutive securities:
Stock options ........................ -- 6,509 --
Diluted EPS:
Net income before cumulative effect of
change in accounting principle .... 65,765 152,023 $0.43 (149,235) 142,852 $(1.04)
-------- -------
Cumulative effect of change
in accounting principle ........... (91,774) 152,023 $(0.60) -- -- --
--------
Net (loss)/income available
to common stockholders ............ $ (26,009) 152,023 $(0.17) $(149,235) 142,852 $(1.04)
-------- -------
</TABLE>
- - ---------------------------------
*Numerator--+ Denominator
Options to purchase 1,407,060 shares were outstanding at September 30,
1999 but were not included in the calculation of diluted shares for the nine
month periods ended September 30, 1999 because the exercise prices were greater
than the average market price of common shares. The exercise price of these
options ranged from $41.88 to $58.88 at September 30, 1999. Options to purchase
16,425,626 shares were outstanding at September 30, 1998 but were not included
in the calculation of diluted shares for the nine month period ended September
30, 1998 because of their antidilutive effect on earnings per share as the
Company incurred a loss for the period. For the nine month period ended
September 30, 1999, common equivalent shares of 8,017,589 and interest expense
of $5.5 million, net of taxes, associated with the Convertible Notes (see Note
10) were excluded from the computation of diluted earnings per share as a result
of their antidilutive effect on earnings per share.
NOTE 12 - COMPREHENSIVE INCOME
Comprehensive income is defined as the change in equity of a company
during a period from transactions and other events and circumstances excluding
transactions resulting from investments by owners and distributions to owners.
The primary differences between net income and comprehensive income, for the
Company, are due to foreign currency translation adjustments and unrealized
gains on available-for-sale securities, net of applicable taxes. Comprehensive
income for the current reporting periods and comparable periods in the prior
year is as follows:
(In thousands)
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
------------------------------------------------------------------------------
1999 1998 1999 1998
------------ -------------- ------------- --------------
<S> <C> <C> <C> <C>
Comprehensive income/(loss) $ 115,935 $ (203,634) $ 53,341 $ (164,800)
============ ============== ============= ==============
</TABLE>
NOTE 13 - SEGMENT REPORTING
16
<PAGE> 17
The Company operates in two reportable segments: the Semiconductor segment
and the Storage Systems segment. In the Semiconductor segment, the Company
designs, develops, manufactures and markets integrated circuits, including
application-specific integrated circuits ("ASICs"), application-specific
standard products ("ASSPs") and related products and services. Semiconductor
design and service revenues include engineering design services, licensing of
LSI's advanced design tools software, and technology transfer and support
services. The Company's customers use these services in the design of
increasingly advanced integrated circuits characterized by higher levels of
functionality and performance. The proportion of revenues from ASIC design and
related services compared to semiconductor product sales varies among customers
depending upon their specific requirements. In the Storage Systems segment, the
Company designs, manufactures, markets and supports high performance data
storage management and storage systems solutions and a complete line of
Redundant Array of Independent Disks ("RAID") storage systems, subsystems and
related software. The Storage Systems segment was added in August 1998 with the
purchase of Symbios (see Note 6).
The following is a summary of operations by segment for the three and nine
month periods ended September 30, 1999 and 1998.
<TABLE>
<CAPTION>
(IN THOUSANDS)
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, 1999 SEPTEMBER 30, 1999
------------------------------------------------------------------------------------------------
Semiconductor Storage Systems TOTAL Semiconductor Storage Systems TOTAL
------------- --------------- ---------- ------------- --------------- ----------
<S> <C> <C> <C> <C> <C> <C>
Revenue $ 470,117 $ 69,842 $ 539,959 $1,300,271 $ 204,317 $1,504,588
Income from operations $ 64,213 $ 7,369 $ 71,582 $ 90,968 $ 19,620 $ 110,588
</TABLE>
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, 1998 SEPTEMBER 30, 1998
---------------------------------------------------------------------------------------------------
Semiconductor Storage Systems TOTAL Semiconductor Storage Systems TOTAL
------------- --------------- ------------ ------------- --------------- ------------
<S> <C> <C> <C> <C> <C> <C>
Revenue $ 366,194 $ 30,677 $ 396,871 $ 1,035,196 $ 30,677 $ 1,065,873
(Loss)/income from operations $ (201,647) $ 4,433 $ (197,214) $ (131,267) $ 4,433 $ (126,834)
</TABLE>
Intersegment revenues for the three and nine month periods ended September
30, 1999 were not significant. Restructuring of operations and merger related
expenses are included in the semiconductor segment.
The following is a summary of total assets by segment as of September 30,
1999 and December 31, 1998:
<TABLE>
<CAPTION>
(IN THOUSANDS)
SEPTEMBER 30, DECEMBER 31,
1999 1998
---------- ----------
<S> <C> <C>
Assets by segment:
Semiconductor $2,830,545 $2,700,295
Storage Systems 144,757 123,510
---------- ----------
Total assets $2,975,302 $2,823,805
========== ==========
</TABLE>
The Storage Systems segment did not meet the requirement for a reportable
segment as defined in SFAS No. 131, "Disclosures about Segments of an Enterprise
and Related Information" for the year ended and as of December 31, 1998.
However, for purposes of comparability, revenue, income/(loss) from operations
by segment for the year ended December 31, 1998 and total assets by segment as
of December 31, 1998 were included in the tables.
NOTE 14 - LEGAL MATTERS
A discussion of certain pending legal proceedings is included in Item 3 of
the Company's Annual Report on Form 10-K/A for the fiscal year ended December
31, 1998. Except as set forth in this Note, the information provided therein
remains unchanged. On February 26, 1999, a lawsuit alleging patent infringement
was filed in the United States District Court for the District of Arizona by the
Lemelson Medical, Education & Research
17
<PAGE> 18
Foundation, Limited Partnership, against eighty-eight electronics industry
companies, including the Company. The case number is CIV99-0377PHX RGS. The
patents involved in this lawsuit generally relate to semiconductor manufacturing
and computer imaging, including the use of bar coding for automatic
identification of articles. The relief sought is an injunction and damages in an
unspecified amount. While the Company cannot make any assurances regarding the
eventual resolution of this matter, we do not believe it will have a material
adverse effect on the Company's consolidated results of operations or financial
condition.
The Company continues to believe that the final outcome of matters
discussed in Item 3 of the Company's Annual Report on Form 10-K/A will not have
a material adverse effect on the Company's consolidated financial position or
results of operations. No assurance can be given, however, that these matters
will be resolved without the Company becoming obligated to make payments or to
pay other costs to the opposing parties, with the potential, particularly if
viewed on a quarterly basis, for having an adverse effect on the Company's
financial position or its results of operations.
Certain additional claims and litigation against the Company have also
arisen in the normal course of business. The Company believes that it is
unlikely that the outcome of these claims and lawsuits will have a materially
adverse effect on the Company's consolidated financial position or results of
operations.
18
<PAGE> 19
ITEM 2. MANAGEMENT'S DISCUSSION AND ANALYSIS OF RESULTS OF OPERATIONS AND
FINANCIAL CONDITION
GENERAL
We believe that our future operating results will continue to be subject
to quarterly variations based upon a wide variety of factors. These factors
include, among others:
- Cyclical nature of both the semiconductor industry and the markets
addressed by our products;
- Availability and extent of utilization of manufacturing capacity;
- Price erosion;
- Competitive factors;
- Timing of new product introductions;
- Changes in product mix;
- Fluctuations in manufacturing yields;
- Product obsolescence; and
- The ability to develop and implement new technologies.
Our operating results could also be impacted by sudden fluctuations in
customer requirements, currency exchange rate fluctuations and other economic
conditions affecting customer demand and the cost of operations in one or more
of the global markets in which we do business. We operate in a technologically
advanced, rapidly changing and highly competitive environment. We predominantly
sell custom products to customers operating in a similar environment.
Accordingly, changes in the conditions of any of our customers may have a
greater impact on our operating results and financial condition than if we
predominantly offered standard products that could be sold to many purchasers.
While we cannot predict what effect these various factors may have on our
financial results, the aggregate effect of these and other factors could result
in significant volatility in our future performance. To the extent our
performance may not meet expectations published by external sources, public
reaction could result in a sudden and significantly adverse impact on the market
price of our securities, particularly on a short-term basis.
We have international subsidiaries which operate and sell our products in
various global markets. We purchase a substantial portion of our raw materials
and equipment from foreign suppliers and incur labor and other operating costs
in foreign currencies, particularly at our Japanese manufacturing facilities. As
a result, we are exposed to international factors such as changes in foreign
currency exchange rates or weak economic conditions of the respective countries
in which we operate. We utilize forward exchange, interest swap and option
contracts to manage our exposure associated with currency fluctuations on
intercompany transactions and certain foreign currency denominated commitments.
With the exception of purchased option contracts and forward contracts, there
were no interest rate swap contracts outstanding as of September 30, 1999 and
December 31, 1998. (See Note 8 of Notes to the Unaudited Consolidated Condensed
Financial Statements.) Our corporate headquarters and some of our manufacturing
facilities are located near major earthquake faults. As a result, in the event
of a major earthquake, we could suffer damages which could significantly and
adversely affect our operating results and financial condition.
There have been no significant changes in the market risk disclosures
during the nine month period ended September 30, 1999 as compared to the
discussion in our 1998 Annual Report on Form 10-K/A for the year ended December
31, 1998.
While management believes that the discussion and analysis in this report
is adequate for a fair presentation of the information, we recommend that you
read this discussion and analysis in conjunction with Management's Discussion
and Analysis included in our 1998 Annual Report on Form 10-K/A for the year
ended December 31, 1998.
Statements in this discussion and analysis include forward looking
information statements within the meaning of Section 27A of the Securities Act
of 1933, as amended and Section 21E of the Securities and Exchange Act of 1934,
as amended. These statements involve known and unknown risks and uncertainties.
Our actual results in
19
<PAGE> 20
future periods may be significantly different from any
future performance suggested in this report. Risks and uncertainties that may
affect our results may include, among others:
- Fluctuations in the timing and volumes of customer demand;
- Currency exchange rates;
- Availability and utilization of our manufacturing capacity;
- Timing and success of new product introductions; and
- Unexpected obsolescence of existing products.
The extent to which our plans for future cost reductions are realized also
may impact our future financial performance. We operate in an industry sector
where security values are highly volatile and may be influenced by economic and
other factors beyond our control. See additional discussion contained in "Risk
Factors," set forth in Part I of our 1998 Annual Report on Form 10-K/A for the
year ended December 31, 1998.
YEAR 2000 DISCLOSURE
The following statement is a Year 2000 Readiness Disclosure under the Year
2000 Information and Readiness Disclosure Act of 1998.
As with many other companies, the Year 2000 computer issue presents risks
for us. We use a significant number of computer software programs and operating
systems in our internal operations, including applications used in our
financial, product development, order management and manufacturing systems.
There are areas in which the Year 2000 computer issue could negatively impact us
and our business. If internal systems do not properly recognize and process date
information for years into and beyond the turn of the century, there could be an
adverse impact on our operations. Moreover, if critical suppliers' or customers'
systems or products fail because of a Year 2000 malfunction, there could be an
adverse impact on our operating results. Finally, our products could malfunction
as a result of a failure in date recognition. A Year 2000 problem could arise if
our systems were to fail to properly recognize and process date information for
several reasons, including: they could fail to properly recognize years that
begin with the digits "20" instead of "19"; they could attribute specially
assigned meanings to certain date code digits, such as "99"; or they could fail
to recognize the year 2000 as a leap year. The inability of computer software
programs to accurately recognize, interpret and process date codes designating
the year 2000 and beyond could cause systems to yield inaccurate results or
encounter operating problems, including interruption of the business operations
that such systems control.
We are engaged in a comprehensive program to assess our Year 2000 risk
exposure and to plan and implement remedial and corrective action where
necessary. We have reviewed all of our major internal systems, including human
resources, financial, engineering and manufacturing systems, to assess Year 2000
readiness and to identify critical systems that require correction or
remediation. Assessment of our design engineering systems and products was
completed in the first quarter of 1999. Based on the results of this assessment,
remediation of critical systems was completed and tested by the third quarter of
1999. We believe that our existing HR, financial and business software systems
are Year 2000 ready. We cannot assure you, however, that integration and testing
of new, corrected or updated programs or systems with which they interface will
not result in necessary corrective action to one or more critical systems. A
significant disruption of our financial or business systems would adversely
impact our ability to process orders, manage production and issue and pay
invoices. Our inability to perform these functions for a long period of time
could result in a material impact on our results of operations and financial
condition.
Our manufacturing facilities incorporate sophisticated computer integrated
manufacturing systems which depend on a mix of our proprietary software and
systems and software purchased from third parties. Failure of these systems
would cause a disruption in the manufacturing process and could result in a
delay in completion and shipment of products. Our assessment of the Year 2000
readiness of our manufacturing systems is complete. Based on information
currently available, we believe that our systems will not be materially impacted
by Year 2000 issues. However, we cannot assure you that a significant disruption
in systems resulting from a Year 2000 problem will not
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<PAGE> 21
occur. If the computer integration system fails for this or any other reason,
there could be a material adverse impact on our operating results and financial
condition.
We are working with critical suppliers of products and services to assess
their Year 2000 readiness with respect both to their operations and the products
and services they supply to us. Comprehensive inquiries have been sent and
responses are being monitored, with appropriate follow-up where required. This
analysis will continue well through 1999, with corrective action taken
commensurate with the criticality of affected products and services.
Our assessment program also has encompassed our own product offerings. Our
ASICs are custom-designed chips which implement the customer's functional or
engineering specifications. As designer and manufacturer of the physical
implementation of a customer's design in silicon, we generally do not have
specific knowledge of the role of the customer's ASIC within the complete system
for which it is intended. Whether the chip will operate correctly depends on the
system function and the software design and integration, which will be
determined independently by the customer or other third party suppliers. Our
ASSP and storage systems products, on the other hand, do implement chip and
system functionality designed by us. Such functionality includes graphics
processing, audio/video signal decoding, data transmission, I/O control and data
storage whose functionality generally is not date dependent. We have completed
our assessment of the Year 2000 readiness of these products, and there is no
information to indicate that Year 2000 issues will have a material impact on
sales or functionality of our standard product offerings. Customers are seeking
assurances of our Year 2000 readiness with increasing frequency, and we are
endeavoring promptly and completely to address their concerns. However, we have
no control over a customer's Year 2000 readiness. Customers who believe that the
products they purchase from us may not be Year 2000 compliant may seek
alternative sources of supply. A significant decline in new orders or increase
in cancellations of existing backlog could have a material adverse impact on our
results of operations or financial condition.
We are at work on the development of various types of contingency plans to
address potential problems with critical internal systems and third party
interactions. Our contingency plans include procedures for dealing with a major
disruption of internal business systems, plans for long term factory shutdown
and identification of alternative vendors of critical materials in the event of
Year 2000 related disruption in supply. Contingency planning will continue
through at least 1999, and will depend heavily on the results of the remediation
and testing of critical systems. The potential ramifications of a Year 2000 type
failure are potentially far-reaching and largely unknown. We cannot assure you
that a contingency plan in effect at the time of a system failure will
adequately address the immediate or long term effects of a failure, or that such
a failure would not have a material adverse impact on our operations or
financial results in spite of prudent planning.
Our costs to date related to the Year 2000 issue consist primarily of
reallocation of internal resources to evaluate and assess systems and products
as described above and to plan our remediation and testing efforts. We have not
maintained detailed accounting records, but based on our review of department
budgets and staff allocations, we believe these costs to be insignificant. We
currently estimate that the total cost of ongoing assessment, remediation,
testing and planning directly related to Year 2000 issues will amount to
approximately $15 million. Of this amount, approximately $7 million is expected
to consist of expenses attributed to redeployment of labor resources and
overhead, $3 million for the cost of software and external consulting fees and
$5 million for additional capital expenditures. The capital expenditures
represent the early replacement of information technology equipment and software
to obtain the full benefits of Year 2000 protections versus the normal technical
obsolescence replacement cycle. The estimate is based on the current assessment
of the projects and is subject to change as the projects progress. We cannot
assure you that remediation and testing will not identify issues which require
additional expenditure of material amounts which could result in an adverse
impact on financial results in future reporting periods.
Based on currently available information, management does not believe that
the Year 2000 issues discussed above related to internal systems or products
sold to customers will have a material adverse impact on our financial condition
or overall trends in results of operations. However, we are uncertain to what
extent we may be affected by such matters. In addition, we cannot assure you
that the failure to ensure Year 2000 capability by a supplier not considered
critical or another third party would not have a material adverse effect on us.
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ADOPTION OF THE EURO
In 1998, we established a task force to address the issues raised by the
implementation of the European single currency (the "Euro"). Our primary focus
has been the changes needed to address a mix of Euro and local denomination
transactions during the transition period from January 1, 1999 through January
1, 2002.
As of January 1, 1999, we began transacting business in Euros. We
implemented a new bank account structure throughout Europe to accommodate
customers and vendors and to improve liquidity management in Europe.
We do not presently expect that the introduction and use of the Euro will
materially affect our foreign exchange and hedging activities or our use of
derivative instruments. We do not believe that the introduction of the Euro will
result in any significant increase in costs to us, and all costs associated with
the introduction of the Euro will be expensed in accordance with our policy. We
do not expect that the transition to the Euro will result in any competitive
pricing or will adversely impact any of our internal computer systems. While we
will continue to evaluate the impact of the Euro introduction over time, based
on currently available information, we do not believe that the introduction of
the Euro currency will have a significant adverse impact on our financial
condition or overall trends in results of operations.
RESULTS OF OPERATIONS
On June 22, 1999, we completed a merger of our wholly-owned subsidiary
with SEEQ in a transaction accounted for as a pooling of interests and SEEQ
became a wholly-owned subsidiary. All financial information has been restated
retroactively to reflect SEEQ and our combined operations as if the merger had
occurred at the beginning of the earliest period presented (see Note 2 of Notes
to the Unaudited Consolidated Condensed Financial Statements). Prior to the
merger, SEEQ's fiscal year-end was the last Sunday in September of each year
whereas we operate on a fiscal year ending on December 31.
Where more than one significant factor caused changes in results, we have
quantified each material factor throughout the MD&A where practicable.
REVENUES
Revenues for the third quarter of 1999 increased $143 million or 36% to
$540 million compared to $397 million during the same period of 1998. Revenues
for the Semiconductor segment (see Note 13 of the Notes to the Unaudited
Consolidated Condensed Financial Statements) increased $104 million or 28% for
the three months ended September 30, 1999 as compared to the same period of the
prior year. Significant factors which contributed to the increase included
additional revenues from products used in communications and networking
applications and additional revenues from the acquisition of Symbios on August
6, 1998 (see Note 6 of Notes to the Unaudited Consolidated Condensed Financial
Statements) which included increased demand for products used in storage
components applications. Revenues for the Storage Systems segment (see Note 13
of the Notes to the Unaudited Consolidated Condensed Financial Statements)
increased $39 million or 128% for the three months ended September 30, 1999 as
compared to the same period of the prior year. The increase was primarily
attributed to additional revenues from the acquisition of Symbios on August 6,
1998 (see Note 6 of Notes to the Unaudited Consolidated Condensed Financial
Statements) and increased demand for products used in Storage Systems.
Revenues for the first nine months of 1999 increased $439 million or 41%
to $1,505 million compared to $1,066 million for the same period of the prior
year. Revenues for the Semiconductor segment (see Note 13 of the Notes to the
Unaudited Consolidated Condensed Financial Statements) increased $265 million or
26% for the nine months period ended September 30, 1999 as compared to the same
period of the prior year. Significant factors which contributed to the increase
included increased demand for products used in communications and networking
applications and additional revenues from the acquisition of Symbios on August
6, 1998 (see Note 6 of Notes to the Unaudited Consolidated Condensed Financial
Statements) which included increased demand for products used in storage
components applications, offset in part by decreased demand and lower average
selling prices for products used in computer and consumer applications. Revenues
for the Storage Systems segment (see Note 13 of the Notes
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<PAGE> 23
to the Unaudited Consolidated Condensed Financial Statements) increased $174
million or 566% for the nine months ended September 30, 1999 as compared to the
same period of the prior year. The increase was primarily attributed to
additional revenues from the acquisition of Symbios on August 6, 1998 (see Note
6 of Notes to the Unaudited Consolidated Condensed Financial Statements) and
increased demand for products used in Storage Systems.
One customer represented 11% and 10% of our consolidated revenues for the
three and nine months ended September 30, 1999, respectively. In the Storage
Systems segment, three customers represented 30%, 28% and 14% of our Storage
Systems revenues, respectively, during the three months ended September 30,
1999. There were four customers, representing 29%, 25%, 15% and 10% of our
Storage Systems revenues, respectively, during the nine months ended September
30, 1999. In the Semiconductor segment, there were no customers who represented
10% or more of our Semiconductor revenues for the three and nine months ended
September 30, 1999.
OPERATING COSTS AND EXPENSES
Key elements of the consolidated statements of operations, expressed as a
percentage of revenues, were as follows:
<TABLE>
<CAPTION>
THREE MONTHS ENDED NINE MONTHS ENDED
SEPTEMBER 30, SEPTEMBER 30,
--------------------------------------------------------------------
1999 1998 1999 1998
-------------- ------------------- ----------------- --------------
<S> <C> <C> <C> <C>
Gross margin 40% 43% 37% 44%
Research and development expenses 13% 20% 15% 20%
Selling, general and administrative expenses 12% 15% 13% 15%
Amortization of intangibles 2% 2% 2% 1%
Income/(loss) from operations 13% (50%) 7% (12%)
</TABLE>
GROSS MARGIN
The gross margin percentage decreased to 40% during the third quarter of
1999 from 43% in the same period in 1998 and decreased to 37% during the first
nine months of 1999 from 44% in the same period in 1998. The decrease reflected
a combination of the following elements:
- Changes in product mix primarily related to Symbios product
additions from August 6, 1998;
- Lower average selling prices which included the impact from currency
fluctuations; and
- Increased cost of revenues from commencing operations at our new
fabrication facility in Gresham, Oregon in December of 1998.
During the third quarter of 1999, we provided engineering training in
accordance with a technology transfer agreement entered into with WTM in
Malaysia (see Note 4 of Notes to the Unaudited Consolidated Condensed Financial
Statements). The engineering training was valued at $1 million and recorded as a
credit to costs of sales during the third quarter of 1999.
Our operating environment, combined with the resources required to operate
in the semiconductor industry, requires that we manage a variety of factors.
These factors include, among other things:
- Product mix;
- Factory capacity and utilization;
- Manufacturing yields;
- Availability of certain raw materials;
- Terms negotiated with third-party subcontractors; and
- Foreign currency fluctuations.
These and other factors could have a significant effect on our gross
margin in future periods.
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<PAGE> 24
Changes in the relative strength of the yen may have a greater impact on
our gross margin than other foreign exchange fluctuations due to our large wafer
fabrication operations in Japan. Although the yen strengthened (the average yen
exchange rate for the third quarter and the first nine months of 1999 increased
18% and 13%, respectively, from the same periods in 1998), the effect on gross
margin and net income was not significant because yen denominated sales offset a
substantial portion of yen denominated costs during the periods. Moreover, we
hedged a portion of our remaining yen exposure. (See Note 8 of Notes to the
Unaudited Consolidated Condensed Financial Statements.) Future changes in the
relative strength of the yen or mix of foreign denominated revenues and costs
could have a significant effect on gross margin or operating results.
RESEARCH AND DEVELOPMENT
Research and development ("R&D") expenses for the third quarter of 1999
decreased approximately $7 million or 9% to $72 million compared to $79 million
for the same period of the prior year. The decrease was primarily attributable
to a $6 million research and development benefit associated with a technology
transfer agreement entered into with WTM in Malaysia during the second quarter
of 1999 (see Note 4 of the Notes to the Unaudited Consolidated Condensed
Financial Statements). Excluding the $6 million dollar benefit during the third
quarter of 1999, research and development expenditures for the third quarter of
1999 declined slightly as compared to the same period in the prior year.
R&D expenses for the nine months ended September 30, 1999 increased $13
million or 6% to $223 million compared to $210 million for the same period of
the prior year. Significant factors which contributed to the increase were the
following:
- Expenditures for research and development activities which were a
continuation of research and development activities of the Symbios
business included in our unaudited consolidated financial statements
in the third quarter and the first nine months of 1999;
- Expenditures related to the continued development of advanced
sub-micron products and process technologies; and
- Increased compensation related costs during 1999.
The above noted increases during the first nine months of 1999 as compared
to the same period of 1998 were offset in part by $9 million which was directly
attributable to an existing technology transfer agreement entered into with WTM
in Malaysia during the second quarter of 1999 (see Note 4 of the Notes to the
Unaudited Consolidated Condensed Financial Statements).
As a percentage of revenues, R&D expenses decreased to 13% and 15% for the
third quarter and the first nine months of 1999, respectively, compared to
approximately 20% for the comparable periods in 1998. The effects of our
restructuring programs established in the third quarter of 1998 primarily
accounted for the decrease (see Note 5 of Notes to the Unaudited Consolidated
Condensed Financial Statements). As we continue our commitment to technological
leadership in our markets and realize the further benefit of cost savings from
our restructuring efforts, we are targeting our R&D investment for the remainder
of 1999 to be approximately 13% of revenues.
SELLING, GENERAL AND ADMINISTRATIVE
Selling, general and administrative ("SG&A") expenses increased $6 million
or 9% to $67 million and $32 million or 20% to $191 million for the third
quarter and the first nine months of 1999, respectively, compared to $61 million
and $159 million during the same periods in 1998, respectively.
The increase was primarily attributable to the inclusion of current
expenses relating to the former Symbios business acquired on August 6, 1998 and
increased compensation related costs during 1999. As a percentage of revenues,
SG&A expenses decreased to approximately 12% and 13% for the three and nine
month periods ended September 30, 1999, respectively, from 15% during the same
periods in 1998.
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<PAGE> 25
We expect that SG&A expenses as a percentage of revenues will decline to
approximately 12% of revenues for the remainder of the year as we continue to
realize the benefits of cost savings from the restructuring programs established
in the third quarter of 1998.
ACQUIRED IN-PROCESS RESEARCH AND DEVELOPMENT
In-process research and development ("IPR&D") was $4.6 million for the
nine month period ended September 30, 1998, compared to $145.5 million for the
three and nine month periods ended September 30, 1998. On April 14, 1999, we
acquired all of the outstanding capital stock of ZSP for a total purchase price
of $11.3 million which consisted of $7 million in cash (including approximately
$0.6 million in direct acquisition costs) and assumed liabilities up to $4.3
million in accordance with the purchase agreement with ZSP. The merger was
accounted for as a purchase (See Note 3 of the Notes to the Unaudited
Consolidated Condensed Financial Statements). ZSP, a development stage
semiconductor company, was involved in the design and marketing of programmable
Digital Signal Processors ("DSPs") for use in wired and wireless communications.
The results of operations of ZSP and estimated fair value of assets acquired and
liabilities assumed were included in our consolidated condensed financial
statements as of April 14, 1999, the effective date of the purchase, through the
end of the period.
In connection with the purchase of ZSP, we recorded a $4.6 million charge
to IPR&D during the second quarter of 1999. The amount was determined by
identifying research projects for which technological feasibility had not been
established and no alternative future uses existed. We acquired ZSP's in-process
DSP research and development project that was targeted at the telecommunications
market. This product was being developed specifically for voice over net or
voice over internet protocol applications and was intended to have substantial
incremental functionality, greatly improved speed and a wider range of
interfaces than ZSP's current technology.
The value of the one project identified to be in progress was determined
by estimating the future cash flows from the project once commercially feasible,
discounting the net cash flows back to their present value and then applying a
percentage of completion to the calculated value as defined below. The net cash
flows from the identified project were based on our estimates of revenues, cost
of sales, research and development costs, selling, general and administrative
costs and applicable income taxes for the project. These estimates were compared
and found to be in line with industry analysts forecasts of growth in the
telecommunications market. Estimated total revenues are expected to peak in the
years 2002 and 2003 and then decline in 2004 as other new products are expected
to become available. These projections are based on our estimates of market size
and growth, expected trends in technology, and the expected timing of new
product introductions by us and our competitors.
We applied a royalty percentage of 25% of operating income for the project
in process to attribute value for dependency on predecessor core technologies.
The discount rate used was 25% for the project, a rate 1,000 basis points higher
than the industry weighted average cost of capital estimated at approximately
15% to account for the risks associated with the inherent uncertainties
surrounding the successful development of the IPR&D, market acceptance of the
technology, the useful life of the technology, the profitability level of such
technology and the uncertainty of technological advances which could impact the
estimates described above.
The percentage of completion for the project was determined using
milestones representing management's estimate of effort, value added and degree
of difficulty of the portion of the project completed as of April 14, 1999, as
compared to the remaining research and development to be completed to bring the
project to technical feasibility. The development process was grouped into three
phases with each phase containing between one and five milestones. The three
phases were:
- Researching the market requirements and the engineering architecture
and feasibility studies;
- Design and verification; and
- Prototyping and testing the product (both internal and customer
testing).
Development of ZSP's digital signal processor project started in May 1998.
As of April 14, 1999, we estimated the project was 65% complete. As of the
acquisition date, the cost to complete the project was estimated at $1 million
for the remainder of 1999.
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However, development of the technology remains a substantial risk to us
due to factors including the remaining effort to achieve technical feasibility,
rapidly changing customer markets and competitive threats from other companies.
Additionally, the value of other intangible assets acquired may become impaired.
Our management believes that the IPR&D charge of $4.6 million is valued
consistently with the SEC staff's view regarding valuation methodologies. There
can be no assurances, however, that the SEC staff will not take issue with any
assumptions used in the valuation model and require us to revise the amount
allocated to IPR&D.
The $145.5 million of IPR&D for the three and nine month periods ended
September 30, 1999 represents the amount of purchase price allocated to IPR&D in
connection with the acquisition of Symbios (see Note 6 of Notes to the Unaudited
Consolidated Condensed Financial Statements). The allocation of the purchase
price and the valuation methodology used to determine the amount allocated to
IPR&D were disclosed in the Report on Form 10K/A for the year ended December 31,
1998 previously filed with the Securities and Exchange Commission.
RESTRUCTURING OF OPERATIONS AND OTHER NON-RECURRING (BENEFITS)/CHARGES, NET
Restructuring of operations and other non-recurring net benefits were $7.9
million and $2.1 million for the three and nine month periods ended September
30, 1999, respectively, compared to a $75.4 million charge during the same
periods in 1998. The benefit of $7.9 million during the third quarter of 1999
was directly attributable to the reversal of restructuring reserves associated
with the restructuring charge originally established in the third quarter of
1998 due to a change in management estimate in the U.S., Japan and Europe (see
Note 5 of the Notes to the Unaudited Consolidated Condensed Financial
Statements). The reversal was primarily comprised of the following:
- $2.8 million of excess severance reserves in Japan and Europe;
- $3.8 million of lease termination and non-cancelable purchase
commitment reserves primarily in U.S. and Europe; and
- $1.3 million of other exit costs and manufacturing facility
decommissioning costs primarily in the U.S. and Japan and
translation adjustments.
The change in management estimates of the reserve requirements stemmed
primarily from the following factors:
- A significant increase in the requirement for manufacturing capacity
to meet expected sales growth which resulted in retention of certain
employees originally targeted for termination of employment and in
reversal of decommissioning costs as a result of retention of a U.S
test and assembly facility originally targeted for sale; and
- Our ability to exit lease commitments and non-cancelable purchase
commitments more favorably than originally anticipated in the U.S.
and Europe.
The net benefit of $2.1 million for the nine months ended September 30,
1999 reflected the combination of the following:
- Approximately $10.4 million of 1998 restructuring reserve reversals
associated with a change in management estimate (see Note 5 of the
Notes to the Unaudited Consolidated Condensed Financial Statements).
In addition to the $7.9 million as noted above, approximately $2.5
million was reversed in the first quarter of 1999 which related to
excess severance and other exit costs primarily in the U.S., Japan
and Europe.
- Approximately $2.9 million in restructuring charges and $5.4 million
in merger related expenses associated in connection with the merger
with SEEQ on June 22, 1999 (see Note 2 of the Notes to the Unaudited
Consolidated Condensed Financial Statements) which includes $0.5
million in merger expenses recorded by SEEQ in the first quarter of
1999. The merger expenses related primarily to investment banking
and other professional fees directly attributable to the merger with
SEEQ. The restructuring charge was
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<PAGE> 27
comprised of $1.9 million in write-downs of fixed assets which were
duplicative to the combined company, $0.5 million of exit costs
relating to non-cancelable building lease contracts and $0.5 million
provision for severance costs related to the involuntary termination
of certain employees. The exit costs and employee severance costs
were recorded in accordance with EITF No. 94-3 "Liability
Recognition for Certain Employee Termination Benefits and Other
Costs to Exit an Activity." The fixed and other assets write-downs
were recorded in accordance with SFAS No. 121, "Accounting for the
Impairment of Long-Lived Assets and for Long-Lived Assets to be
Disposed of." The restructuring actions as outlined by the
restructuring plan are intended to be executed to completion by June
30, 2000, one year from the date the reserve was taken.
During the third quarter of 1998, as a result of identifying opportunities
to streamline operations and maximize the integration of Symbios acquired on
August 6, 1998 (see Note 6 of Notes to the Unaudited Consolidated Condensed
Financial Statements) into our operations, our management, with the approval of
the Board of Directors, committed itself to a restructuring plan and recorded a
$75 million restructuring charge. For a description of the restructuring costs
recorded in the third quarter of 1998 and changes to the restructuring reserves
during the three and nine month periods ended September 30, 1999, refer to Note
5 of the Notes to the Unaudited Consolidated Condensed Financial Statements.
During the third quarter of 1999, we completed the activities underlying the
restructuring plan.
As a result of the execution of the restructuring plan announced in the
third quarter of 1998, we expect to realize savings in 1999 of approximately $37
million in reduced employee expenses, $10 million in depreciation savings and $3
million related to reduced lease and maintenance contract expenses primarily
associated with the reduction in the number of engineering design centers and
sales facilities and administrative offices worldwide.
The savings from the restructuring plan associated with the acquisition of
SEEQ are not considered to be significant.
AMORTIZATION OF INTANGIBLES
Amortization of goodwill and other intangibles increased $5 million to $12
million and $25 million to $35 million in the three and nine month periods ended
September 30, 1999, respectively, compared to $7 million and $10 million during
the same periods in 1998, respectively. The increase was primarily related to
additional amortization of goodwill associated with the acquisition of Symbios
in August of 1998 and the acquisition of ZSP in April of 1999.
INTEREST EXPENSE
Interest expense increased $3 million to $9 million and $24 million to $30
million in the three and nine months ended September 30, 1999, respectively,
compared to $6 million during the same periods in 1998. The increase was
attributable to interest expense on the bank debt facility, which we entered
into in August 1998 to fund the purchase of Symbios, and the Convertible Notes
issued in March 1999 (see Note 10 of Notes to the Unaudited Consolidated
Condensed Financial Statements.) Additionally, in 1999, we did not capitalize
any interest associated with the construction of the new fabrication facility in
Gresham, Oregon, as operations of the facility commenced in December 1998.
INTEREST INCOME AND OTHER, NET
Interest income and other increased $30 million to $7 million and $21
million to $11 million in the third quarter and the first nine months of 1999,
respectively, as compared to $23 million and $10 million of net expenses during
the same periods in 1998, respectively. The increase was primarily attributable
to the following:
- A $14 million write-down of our equity investment in two non-public
technology companies with impairment indicators not considered to be
temporary in the third quarter of 1998 (see Note 7 of Notes to the
Unaudited Consolidated Condensed Financial Statements);
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- A $2 million write-down of capitalized software in the third quarter
of 1998;
- An $8 million write down of fixed assets in the third quarter of
1998;
- A $1.5 million loss in the third quarter of 1998, from the decision
to close the interest swap at JSI (see Note 8 of Notes to the
Unaudited Consolidated Condensed Financial Statements); and
- A $2 million and $4 million gain on stock investments in the three
and nine months ended September 30, 1999, respectively. The increase
was offset in part by the following:
- A reduction in interest income attributable to lower average
balances of cash, cash equivalents and short-term investments and
the lower yield during the first nine months of 1999 as compared to
the same period in the prior year. The lower average balances of
cash, cash equivalents and short term investments resulted primarily
from cash outlays associated with the purchase of Symbios in the
third quarter of 1998 and debt repayments, net of borrowings,
primarily during the first quarter of 1999;
- A $2 million of write-down of debt issuance costs in the nine months
ended September 30, 1999; and
- Foreign exchange losses during the three and nine months ended
September 30, 1999 compared to gains for the same periods of 1998.
PROVISION FOR/(BENEFITS OF) INCOME TAXES
The tax provision for the three and nine months ended September 30, 1999
was at an effective rate of 25% and 29%, respectively, compared to a 6% benefit
and a 4% provision for the three and nine months ended September 30, 1998,
respectively. The 1999 rates have been impacted by the write-offs relating to
IPR&D, SEEQ merger costs and restructuring charges during the second quarter of
1999. The 1998 rates were also impacted by the write-offs related to IPR&D and
restructuring charges taken during the third quarter of 1998. Our effective tax
rate can be above or below the U.S. statutory rate primarily due to
non-deductible IPR&D and merger and restructuring charges offset in part by
earnings of our foreign subsidiaries taxed at lower rates and the utilization of
prior loss carryovers and other tax credits.
CUMULATIVE EFFECT OF CHANGE IN ACCOUNTING PRINCIPLE
In April 1998, the Accounting Standards Executive Committee ("AcSEC")
released SOP No. 98-5, "Reporting on the Costs of Start-up Activities." The SOP
is effective for fiscal years beginning after December 15, 1998 and requires
companies to expense all costs incurred or unamortized in connection with
start-up activities. Accordingly, we expensed the unamortized preproduction
balance of $92 million associated with the Gresham manufacturing facility, net
of tax, on January 1, 1999 and presented it as a cumulative effect of a change
in accounting principle in accordance with SOP No. 98-5.
FINANCIAL CONDITION AND LIQUIDITY
Cash, cash equivalents and short-term investments increased by $165
million during the first nine months of 1999 to $457 million from $292 million
at the end of 1998. The increase was primarily generated from operations
partially offset by purchases of property and equipment and repayment of debt
obligations, net of borrowings.
Working capital increased by $381 million to $620 million at September 30,
1999 from $239 million at December 31, 1998. The increase in working capital was
primarily a result of the following elements:
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- Lower current liabilities as a result of repayment of the short-term
portion of the debt facility in the first quarter of 1999, and lower
accrued liabilities primarily due to utilization and reversal of
restructuring reserves (see Note 5 of the Notes to the Unaudited
Consolidated Condensed Financial Statements); and
- Higher short-term investments, accounts receivable and inventories.
The increase in short-term investments was attributable to purchases
of debt and equity securities, net of sales and maturities, with
excess cash generated from operations. The increase was also due to
the reclassification of $25 million of long-term investments that
were intended to be sold within one year (see Note 7 of the Notes to
the Unaudited Consolidated Condensed Financial Statements). The
increase in accounts receivable was attributable to higher sales in
the third quarter of 1999 compared to the fourth quarter of 1998 and
the timing of payments received in the third quarter of 1999 as
compared to the fourth quarter of 1998. The increase in inventories
reflected the expectation of continued higher sales in 1999 as
compared to 1998.
The increase in working capital was offset in part by lower prepaids and
other current assets, and higher accounts payable and accrued salaries, wages
and benefits as of September 30, 1999 as compared to December 31, 1998. The
decrease in prepaids and other current assets was primarily a result of timing
differences of payments. The increase in accounts payable was attributable to
the timing difference of invoice receipt and payment and higher volumes of
business in the third quarter of 1999 compared to the fourth quarter of 1998.
The increase in accrued salaries, wages and benefits is partially due to
increases in compensation levels and compensation related programs in 1999 as
compared to 1998.
During the first nine months of 1999, we generated $232 million of cash
and cash equivalents from operating activities compared to $142 million during
the same period in 1998. The increase in cash and cash equivalents provided by
operations was primarily attributable to:
- Higher net income (before depreciation and amortization, write-off
of unamortized preproduction costs, acquired in-process research and
development, non-cash restructuring charges and gains and losses on
stock investments);
- A decrease in prepaids and other assets; and
- An increase in accounts payable and accrued and other liabilities.
The decrease in prepaids and other assets primarily related to timing
differences. The increase in accounts payable was attributable to the timing of
invoice receipt and the higher volumes of business in September 1999 compared to
September 1998. The increase in accrued liabilities was partly due to higher
bonus accruals as of September 30, 1999 as compared to September 30, 1998 as a
result of higher net income in the third quarter of the respective year.
The increased cash from operations was offset in part by an increase in
accounts receivable and inventories. The increase in accounts receivable was
primarily a result of higher revenues in the nine months of 1999 as compared to
the same period of 1998 and the timing of payment receipt. Inventories were
higher as revenues are expected to continue to be higher for the fourth quarter
of 1999 as compared to 1998.
Cash and cash equivalents used in investing activities during the first
nine months of 1999 were $277 million compared to $707 million during the same
period in 1998. The primary investing activities during the first nine months of
1999 included the following:
- Purchases and sales of debt and equity securities
available-for-sale;
- The acquisition of a non-public technology company; and
- Purchases of property and equipment.
A decrease in cash used in investing activities during the first nine
months of 1999 as compared to the same period in 1998 was primarily attributable
to the acquisition of Symbios in the third quarter of 1998 (see Note 6 of Notes
to the Unaudited Consolidated Condensed Financial Statements) and higher
purchases of property and equipment in 1998, offset in part by higher maturities
and sales of debt and equity securities available-for-sale in the
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<PAGE> 30
first nine months of 1998 as compared to the same period in 1999. We believe
that maintaining technological leadership in the highly competitive worldwide
semiconductor industry requires substantial ongoing investment in advanced
manufacturing capacity. Net capital additions were $105 million and $232 million
during the first nine months of 1999 and 1998, respectively. The decrease in
additions from 1998 was primarily attributable to reduced purchases of property
and equipment related to construction of a new wafer fabrication facility in
Gresham, Oregon, which was completed in December 1998. We expect to incur
capital expenditures of no more than $250 million in 1999.
Cash and cash equivalents provided by financing activities during the
first nine months of 1999 totaled $16 million, compared to $601 million in the
same period of 1998. A decrease in cash provided during the first nine months of
1999 was primarily attributable to proceeds from a credit agreement entered into
in August 1998 to finance the acquisition of Symbios (see Note 6 and 10 of Notes
to the Unaudited Consolidated Condensed Financial Statements), net of repayment.
The decrease was offset in part by proceeds from the issuance of the 4 1/4%
Convertible Subordinated Notes in March 1999 (see Note 10 of Notes to the
Unaudited Consolidated Condensed Financial Statements), net of repayment of the
credit facility. The decrease was also offset in part by higher proceeds from
sale of common stock issued pursuant to our employee stock option and purchase
plans in 1999.
During March of 1999, we issued $345 million of 4 1/4% Convertible
Subordinated Notes (the "Convertible Notes") due in 2004. The Convertible Notes
are subordinated to all existing and future senior debt, are convertible 60 days
following issuance into shares of our common stock at a conversion price of
$31.353 per share and are redeemable at our option, in whole or in part, at any
time on or after March 20, 2002. Each holder of the Convertible Notes has the
right to cause us to repurchase all of such holder's Convertible Notes at 100%
of their principal amount plus accrued interest upon the occurrence of certain
events and in certain circumstances. Interest is payable semiannually. We paid
approximately $9.5 million for debt issuance costs related to the Convertible
Notes. The debt issuance costs are being amortized using the interest method. We
used the net proceeds from the Convertible Notes to repay existing debt
obligations as outlined below.
On August 5, 1998, we entered into a credit agreement with ABN AMRO. The
credit agreement was restated and superseded by the Amended and Restated Credit
Agreement dated as of September 22, 1998 by and among LSI Logic, JSI, ABN ANRO
and thereafter syndicated to a group of lenders determined by ABN AMRO and LSI
Logic. The credit agreement consisted of two credit facilities: a $575 million
senior unsecured reducing revolving credit facility ("Revolver"), and a $150
million senior unsecured revolving credit facility ("364 day Facility").
On August 5, 1998, we borrowed $150 million under the 364 day Facility and
$485 million under the Revolver. On December 22, 1998, we borrowed an additional
$30 million under the Revolver. The credit facilities allowed for borrowings at
adjustable rates of LIBOR/TIBOR with a 1.25% spread. As of March 31, 1999, the
spread changed to 1%. Interest payments are due quarterly. The 364 day Facility
expired on August 3, 1999 by which time borrowings outstanding were fully paid
in accordance with the credit agreement. The Revolver is for a term of four
years with the principal reduced quarterly beginning on December 31, 1999. The
Revolver includes a term loan sub-facility in the amount of 8.6 billion yen made
available to JSI over the same term. The yen term loan sub-facility is for a
period of four years with no required payments until it expires on August 5,
2002. Pursuant to the restated credit agreement, on August 30, 1998, JSI repaid
it's existing 11.4 billion yen ($79 million) credit facility and borrowed 8.6
billion yen ($83 million at September 30, 1999) bearing interest at adjustable
rates. In March of 1999, we repaid the full $150 million outstanding under the
364 day Facility and $186 million outstanding under the Revolver using proceeds
from the Convertible Notes as described above. Borrowings outstanding under the
Revolver including the yen sub-facility were $382 million as of September 30,
1999. As of September 30, 1999, the interest rate for the Revolver and the yen
sub-facility were 6.31% and 1.12%, respectively. Debt issuance costs associated
with these credit facilities were not significant.
In accordance with the terms of our existing credit agreement, we must
comply with certain financial covenants related to profitability, tangible net
worth, liquidity, senior debt leverage, debt service coverage and subordinated
indebtedness. As of September 30, 1999, we were in compliance with these
covenants.
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<PAGE> 31
We believe that our level of financial resources is an important
competitive factor in our industry. Accordingly, we may, from time to time, seek
additional equity or debt financing. We believe that our existing liquid
resources and funds generated from operations, combined with funds from such
financing and our ability to borrow funds, will be adequate to meet our
operating and capital requirements and obligations through the foreseeable
future. However, we can provide no assurance that such additional financing will
be available when needed or, if available, will be on favorable terms. Any
future equity financing will decrease existing stockholders' equity percentage
ownership and may, depending on the price at which the equity is sold, result in
dilution.
RECENT ACCOUNTING PRONOUNCEMENTS
In June 1998, the Financial Accounting Standards Board issued SFAS No.
133, "Accounting for Derivative Instruments and Hedging Activities." SFAS No.
133 requires that an entity recognize all derivatives as either assets or
liabilities in the statement of financial position and measure those instruments
at fair value. It further provides criteria for derivative instruments to be
designated as fair value, cash flow and foreign currency hedges, and establishes
respective accounting standards for reporting changes in the fair value of the
instruments. The statement is effective for all fiscal quarters of fiscal years
beginning after June 15, 2000 pursuant to the issuance of SFAS No. 137,
"Accounting for Derivative Instruments and Hedging activities Deferral of the
Effective Date of FASB Statement No. 133," which deferred the effective date of
SFAS No. 133 by one year. Upon adoption of SFAS No. 133, we will be required to
adjust hedging instruments to fair value in the balance sheet and recognize the
offsetting gain or loss as transition adjustments to be reported in net income
or other comprehensive income, as appropriate, and presented in a manner similar
to the cumulative effect of a change in accounting principle. While we believe
the adoption of this statement will not have a significant effect on our results
of operations, the impact of the adoption of SFAS No. 133 as of the effective
date cannot be reasonably estimated at this time.
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PART II
ITEM 1. LEGAL PROCEEDINGS
Reference is made to Item 3, Legal Proceedings, of the Company's Annual
Report on Form 10-K/A for the fiscal year ended December 31, 1998 for a
discussion of certain pending legal proceedings. Except as set forth in Note 14,
the information provided at such reference regarding those matters remains
unchanged. The Company continues to believe that the final outcome of such
matters will not have a material adverse effect on the Company's consolidated
financial position or results of operations. No assurance can be given, however,
that these matters will be resolved without the Company becoming obligated to
make payments or to pay other costs to the opposing parties, with the potential
for having an adverse effect on the Company's financial position or its results
of operations.
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
10.46 Technology Transfer Agreement dated September 8, 1999 between the
Registrant and Wafer Technology (Malaysia) Sdn. Bhd.
27.1 Financial Data Schedules
(b) Reports on Form 8-K
On August 11, 1999, pursuant to Item 5 to report information set forth in
the Registrant's press release dated August 4, 1999.
On October 25, 1999, pursuant to Item 5 to report information set forth in
the Registrant's press release dated October 21, 1999.
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<PAGE> 33
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
Registrant has duly caused this report to be signed on its behalf by the
undersigned thereunto duly authorized.
LSI LOGIC CORPORATION
(Registrant)
Date: November 10, 1999 By /s/ R. DOUGLAS NORBY
------------------------------------------
R. Douglas Norby
Executive Vice President Finance &
Chief Financial Officer
33
<PAGE> 34
INDEX TO EXHIBITS
EXHIBIT
NUMBER DESCRIPTION
- - ------ -----------
10.46 Technology Transfer Agreement
27.1 Financial Data Schedule
34
<PAGE> 1
EXHIBIT 10.46
TECHNOLOGY TRANSFER AGREEMENT
This Technology Transfer Agreement (this "Agreement") is entered into as of
September 8, 1999 by and between, on the one hand, Wafer Technology (Malaysia)
Sdn. Bhd., a private limited company incorporated in Malaysia and having its
registered office at Level 28, Bangunan Bank Industri, Bandar Wawasan, No. 1016,
Jalan Sultan Ismail, 50250 Kuala Lumpur, Malaysia ("WTM") and, on the other
hand, LSI Logic Corporation, a company incorporated under the laws of the State
of Delaware, United States of America, and having a place of business at 1551
McCarthy Blvd., Milpitas, California, United States of America ("LSI"). Each of
WTM and LSI are referred to herein individually as a "Party" and collectively as
the "Parties."
RECITALS:
WHEREAS, WTM desires to construct and operate a semiconductor wafer fabrication
facility in Malaysia;
WHEREAS, LSI Logic Corporation is a manufacturer of semiconductor devices and
has developed and is currently developing certain technology for fabricating
semiconductor wafers for use in its own wafer fabrication facilities; and
WHEREAS, the Parties desire that LSI license such technology to WTM and provide
certain training and consulting services to WTM in connection therewith, on the
terms and conditions set forth herein.
NOW, THEREFORE, in consideration of the promises and the mutual covenants and
agreements herein contained, the Parties hereby agree as follows:
37
<PAGE> 2
1. DEFINITIONS.
1.1 DEFINED TERMS. The following terms shall have the meanings set forth below:
(a) "BUSINESS DAY" MEANS ANY DAY OTHER THAN A SATURDAY, A SUNDAY OR ANY DAY ON
WHICH BANKS ARE AUTHORIZED OR REQUIRED TO BE CLOSED IN SAN JOSE, CALIFORNIA OR
KUALA LUMPUR, THE FEDERATION OF MALAYSIA, OR A DAY WHICH IS OTHERWISE AN
OFFICIAL BANK HOLIDAY IN THE UNITED STATES OF AMERICA OR A PUBLIC HOLIDAY IN THE
FEDERATION OF MALAYSIA.
(b) "COT CELL LIBRARIES" MEANS EXTERNALLY OBTAINED CELL LIBRARIES SUBSTANTIALLY
EQUIVALENT TO THOSE USED BY LSI FOR ITS CUSTOMER OWNED TOOLING ("COT") BUSINESS
THAT RELATE TO THE PROCESS TECHNOLOGY, WHICH ARE IDENTIFIED IN EXHIBIT 1.1(b)
AND AS PART OF THE DELIVERABLES AND WHICH INCLUDE QUALIFIED CELL LIBRARIES FOR
THE PROCESS TECHNOLOGY, FOUNDRY-COMPATIBLE STANDARD CELLS, BASIC SRAM COMPILERS,
BASIC INPUT/OUTPUT ("I/O") LIBRARIES, ESD STRUCTURES FOR WTM SPECIALTY I/O
DESIGNS, SPICE MODELS FOR BASIC PROCESSES AND DERIVATIVES THEREOF.
(c) "CONFIDENTIAL INFORMATION" HAS THE MEANING SET FORTH IN SECTION 10.1.
(d) "CORE PROCESSES" MEANS LSI'S PROPRIETARY 0.18 MICRON ("G12") AND 0.25 MICRON
("G11+") SEMICONDUCTOR WAFER MANUFACTURING PROCESSES. (FEATURE SIZES ARE
DESCRIBED IN "DRAWN" MEASUREMENTS.)
(e) "DERIVATIVE PROCESS," [REDACTED]
(f) "DOLLAR" AND THE SIGN "$" EACH SHALL MEAN THE LAWFUL CURRENCY OF THE UNITED
STATES OF AMERICA.
(g) "EFFECTIVE DATE" MEANS THE EARLIEST DATE ON WHICH ALL OF THE FOLLOWING HAVE
OCCURRED (EACH, A "CONDITION PRECEDENT"): (i) EACH OF THE PARTIES HAS EXECUTED
AND DELIVERED THIS AGREEMENT; (ii) THE PARTIES HAVE OBTAINED THE APPROVAL OF THE
FOLLOWING GOVERNMENTAL AUTHORITIES NECESSARY OR APPROPRIATE FOR THE EXECUTION,
DELIVERY AND/OR PERFORMANCE OF THIS AGREEMENT, THE SUBSCRIPTION AGREEMENT AND/OR
THE WAFER PURCHASE AGREEMENT -- THE MINISTRY OF INTERNATIONAL TRADE AND INDUSTRY
OF THE FEDERATION OF MALAYSIA ("MITI"), THE MALAYSIAN INDUSTRIAL DEVELOPMENT
AUTHORITY ("MIDA") AND THE CONTROLLER OF FOREIGN EXCHANGE IN MALAYSIA, THE
MALAYSIAN FOREIGN INVESTMENT COMMITTEE ("FIC"); (iii) THE PARTIES HAVE ENTERED
INTO THE SUBSCRIPTION AGREEMENT AND (iv) THE PARTIES HAVE ENTERED INTO THE WAFER
PURCHASE AGREEMENT. WTM SHALL BE RESPONSIBLE FOR SEEKING THE APPROVALS OF MITI,
MIDA AND FIC. ALL OTHER CONDITIONS PRECEDENT SHALL BE THE RESPONSIBILITY OF BOTH
PARTIES.
(h) "GRANT-BACK INTELLECTUAL PROPERTY RIGHTS" [REDACTED]
(i) "GOVERNMENTAL AUTHORITY" MEANS ANY ENTITY EXERCISING EXECUTIVE, LEGISLATIVE,
JUDICIAL, REGULATORY OR ADMINISTRATIVE FUNCTIONS OF OR PERTAINING TO ANY NATION,
STATE OR POLITICAL SUBDIVISION THEREOF.
(j) "GRESHAM FAB" MEANS LSI'S SEMICONDUCTOR WAFER FABRICATION FACILITY LOCATED
IN GRESHAM, OREGON, UNITED STATES OF AMERICA.
(k) "IMPROVEMENT" MEANS A PROCESS MODIFICATION, UPGRADE AND/OR IMPROVEMENT TO
THE PROCESS TECHNOLOGY WHICH IS NOT A DERIVATIVE PROCESS. AN EXAMPLE OF AN
"IMPROVEMENT" IS A CHANGE IN THE CHEMISTRY OF THE CLEANING PROCESS TO IMPROVE
YIELD.
(l) "INTEGRATION SOFTWARE" [REDACTED]
(m) "INTELLECTUAL PROPERTY RIGHTS" MEANS ALL RIGHTS IN, TO, OR ARISING OUT OF:
(i) ANY U.S., INTERNATIONAL OR FOREIGN PATENT OR ANY APPLICATION THEREFOR AND
ANY AND ALL REISSUES, DIVISIONS, CONTINUATIONS, RENEWALS, EXTENSIONS,
RE-EXAMINATIONS, AND CONTINUATIONS-IN-PART THEREOF ("PATENTS"); (ii) INVENTIONS
(WHETHER PATENTABLE OR NOT IN ANY COUNTRY), INVENTION DISCLOSURES, IMPROVEMENTS,
TRADE SECRETS, PROPRIETARY INFORMATION, KNOW-HOW, TECHNOLOGY AND TECHNICAL DATA;
(iii) COPYRIGHTS, COPYRIGHT REGISTRATIONS, AND APPLICATIONS THEREFOR IN THE U.S.
OR ANY FOREIGN COUNTRY, AND ALL OTHER RIGHTS CORRESPONDING THERETO THROUGHOUT
THE WORLD; (iv) MASK WORKS, MASK WORK REGISTRATIONS AND APPLICATIONS THEREFOR IN
THE U.S. OR ANY FOREIGN COUNTRY; AND (v) ANY OTHER PROPRIETARY RIGHTS ANYWHERE
IN THE WORLD SIMILAR TO ANY OF THE FOREGOING.
(n) "LICENSED PATENTS" MEANS: (i) ANY PATENTS OWNED BY LSI AND (ii) ANY PATENT
RIGHTS OF LSI AS LICENSEE THAT LSI MAY, ACCORDING TO THE TERMS OF THE APPLICABLE
LICENSE AGREEMENT, SUBLICENSE TO WTM WITHOUT ANY ADDITIONAL PAYMENT OR GRANTING
OF OTHER CONSIDERATION TO THE LICENSOR THEREUNDER, TO THE EXTENT THE SAME COVER
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<PAGE> 3
THE LICENSED TECHNOLOGY, INCLUDING TO THE EXTENT THE SAME COVER ANY PROCESS USED
IN THE MANUFACTURING AND TESTING OF WAFERS MANUFACTURED BY THE PROCESS
TECHNOLOGY.
(o) "LICENSED PRODUCT" [REDACTED]
(p) "LICENSED TECHNOLOGY" [REDACTED]
(q) "MALAYSIAN FAB" MEANS THE WAFER FABRICATION FACILITY TO BE CONSTRUCTED AND
OPERATED BY WTM AT THE SITE IN MALAYSIA OR ANY OTHER REPLACEMENT SITE IN
MALAYSIA CHOSEN BY WTM FOR CONSTRUCTION OF THE MALAYSIAN FAB.
(r) "MATERIAL BREACH" MEANS AN UNCURED BREACH OF ANY OF THE MATERIAL TERMS,
CONDITIONS, COVENANTS, REPRESENTATIONS OR WARRANTIES OF THIS AGREEMENT BY A
PARTY.
(s) "MILESTONE SATISFACTION DATE" HAS THE MEANING SET FORTH IN SECTION 7.2(c).
(t) "OTHER INTELLECTUAL PROPERTY RIGHTS" MEANS INTELLECTUAL PROPERTY RIGHTS
OTHER THAN PATENTS.
(u) "PROCESS TECHNOLOGY" MEANS THE TECHNOLOGY RELATING TO THE CORE PROCESSES,
TOGETHER WITH ALL IMPROVEMENTS AND DERIVATIVE PROCESSES THEREOF THAT LSI OWNS OR
IS USING AS OF THE EFFECTIVE DATE OR DEVELOPS WITHIN FIVE (5) YEARS OF THE
EFFECTIVE DATE.
(v) "PROCESS TRANSFER STANDARDS" [REDACTED]
(w) "QUALIFICATION OF THE MALAYSIAN FAB" MEANS THAT, AT THE MALAYSIAN FAB, THE
PROCESS TECHNOLOGY HAS BEEN SHOWN TO SATISFY THE APPLICABLE QUALIFICATION
REQUIREMENTS AS DESCRIBED IN EXHIBIT 1.1(w).
(x) "Related Agreements" mean the Subscription Agreement and the Wafer Purchase
Agreement.
(y) "SANTA CLARA FAB" MEANS LSI'S RESEARCH AND DEVELOPMENT WAFER FABRICATION
FACILITY LOCATED IN SANTA CLARA, CALIFORNIA, UNITED STATES OF AMERICA.
(z) "SERVICES" MEANS THE TRAINING, MANAGEMENT, CONSULTATION AND OTHER SERVICES
TO BE PERFORMED BY LSI FOR WTM IN CONNECTION WITH THE LICENSE GRANTED HEREIN
UNDER THIS AGREEMENT.
(aa) "SITE" MEANS THE FOLLOWING SITE IN MALAYSIA: WTM FACILITY AT KULIM,
MALAYSIA OR ANY OTHER REPLACEMENT SITE IN MALAYSIA CHOSEN BY WTM FOR
CONSTRUCTION OF THE MALAYSIAN FAB.
(bb) "SPECIFICATIONS" MEANS THE SPECIFICATIONS FOR THE PROCESS TECHNOLOGY AS
DETERMINED BY LSI FOR ITS USE IN THE GRESHAM FAB.
(cc) "SUBSCRIPTION AGREEMENT" MEANS THE SUBSCRIPTION AGREEMENT DATED AS OF THE
DATE HEREOF BY AND BETWEEN WTM AND LSI, IN THE FORM ATTACHED AS EXHIBIT 1.1(bb)
HERETO.
(dd) "TECHNICAL INFORMATION" SHALL MEAN THE INFORMATION, DATA AND MATERIALS
RELATING TO OR DESCRIBING A PARTY'S TECHNOLOGY.
(ee) "TECHNOLOGY" MEANS ANY AND ALL METHODS, PROCESSES, RECIPES, FORMULAE,
KNOW-HOW, SHOW-HOW, TRADE SECRETS, TECHNICAL INFORMATION, INVENTIONS AND THE
LIKE, INCLUDING ALL INFORMATION, DATA AND MATERIALS DESCRIBING ANY OF THE
FOREGOING.
(ff) "WAFER" MEANS AN EIGHT INCH (8") SEMICONDUCTOR WAFER AT ANY STAGE OF WAFER
FABRICATION.
(gg) "TERM" HAS THE MEANING SET FORTH RELATING TO OR IN SECTION 13.
(hh) "WAFER PURCHASE AGREEMENT" MEANS THE WAFER PURCHASE AGREEMENT FOR THE
PURCHASE OF WAFERS BY WTM FROM LSI AND BY LSI FROM WTM DATED AS OF THE DATE
HEREOF BY AND BETWEEN WTM AND LSI, IN THE FORM ATTACHED AS EXHIBIT 1.1(hh)
HERETO.
(ii) "WTM-OWNED COMPANY" MEANS A WHOLLY-OWNED SUBSIDIARY OF WTM.
(jj) "WTM PROCESS TECHNOLOGY" [REDACTED]
1.2 Construction.
(a) All references in this Agreement to "Articles," "Sections" and "Exhibits"
refer to the articles, sections and exhibits of this Agreement.
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<PAGE> 4
(b) AS USED IN THIS AGREEMENT, NEUTRAL PRONOUNS AND ANY VARIATIONS THEREOF SHALL
BE DEEMED TO INCLUDE THE FEMININE AND MASCULINE AND ALL TERMS USED IN THE
SINGULAR SHALL BE DEEMED TO INCLUDE THE PLURAL, AND VICE VERSA, AS THE CONTEXT
MAY REQUIRE.
(c) THE WORDS "HEREOF," "HEREIN" AND "HEREUNDER" AND OTHER WORDS OF SIMILAR
IMPORT REFER TO THIS AGREEMENT AS A WHOLE, AS THE SAME MAY FROM TIME TO TIME BE
AMENDED OR SUPPLEMENTED IN ACCORDANCE HEREWITH, AND NOT TO ANY SUBDIVISION
CONTAINED IN THIS AGREEMENT.
(d) THE WORD "INCLUDING" WHEN USED HEREIN IS NOT INTENDED TO BE EXCLUSIVE AND
MEANS "INCLUDING, WITHOUT LIMITATION."
2. LICENSE.
2.1 Technology Licenses to WTM. Subject to the terms and conditions of this
Agreement, LSI hereby grants WTM a non-exclusive, non-transferable,
non-sublicensable (except as set forth in Section 2.5 ("Use of Technology by a
WTM-Owned Company")), license under the Licensed Patents and the Other
Intellectual Property Rights in the Process Technology that LSI owns or has the
right to License:
(a) TO USE, MODIFY AND CREATE IMPROVEMENTS TO AND DERIVATIVE PROCESSES OF THE
PROCESS TECHNOLOGY IN THE MALAYSIAN FAB;
(b) TO MAKE IN THE MALAYSIAN FAB (BUT NOT HAVE MADE), USE, OFFER TO SELL, SELL,
IMPORT AND OTHERWISE DISTRIBUTE WORLDWIDE LICENSED PRODUCTS;
(c) TO USE, REPRODUCE AND CREATE DERIVATIVE WORKS OF THE INTEGRATION SOFTWARE IN
THE MALAYSIAN FAB;
(d) TO USE ANY TECHNICAL INFORMATION RELATING TO THE COT CELL LIBRARIES OR THE
PROCESS TECHNOLOGY IN CONJUNCTION WITH THE COT CELL LIBRARIES TO SOLICIT ORDERS
AND TO FULFILL SAME AS CONTEMPLATED UNDER THE WAFER PURCHASE AGREEMENT AND, UPON
SUCCESSFUL QUALIFICATION OF THE MALAYSIAN FAB, TO USE SUCH INFORMATION IN
CONJUNCTION WITH THE COT CELL LIBRARIES TO PRACTICE THE RIGHTS HEREUNDER GRANTED
BY LSI TO WTM; AND
(e) TO USE, REPRODUCE AND CREATE DERIVATIVE WORKS OF THE LICENSED TECHNOLOGY
DOCUMENTATION.
2.2 [RESERVED]
2.3 Ownership of Intellectual Property. ALL INTELLECTUAL PROPERTY RIGHTS OF A
FIRST PARTY NOT EXPLICITLY LICENSED UNDER THIS AGREEMENT TO THE OTHER PARTY ARE
RESERVED TO SUCH FIRST PARTY. ALL INTELLECTUAL PROPERTY RIGHTS THAT A PARTY OWNS
AS OF THE EFFECTIVE DATE AND ALL INTELLECTUAL PROPERTY RIGHTS THAT ARE DEVELOPED
OR ACQUIRED BY A PARTY AFTER THE EFFECTIVE DATE SHALL REMAIN THE PROPERTY OF
SUCH PARTY AND, EXCEPT AS EXPRESSLY SET FORTH HEREIN, THIS AGREEMENT SHALL NOT
BE DEEMED TO GRANT ANY LICENSE TO ANY SUCH INTELLECTUAL PROPERTY RIGHTS TO THE
OTHER PARTY. SUBJECT TO THE LICENSES EXPRESSLY GRANTED HEREIN, EACH PARTY SHALL
RETAIN ALL RIGHT, TITLE AND INTEREST, INCLUDING ALL INTELLECTUAL PROPERTY
RIGHTS, TO ALL IMPROVEMENTS AND DERIVATIVE PROCESSES DEVELOPED BY SUCH PARTY.
ANY INTELLECTUAL PROPERTY RIGHTS IN ANY TECHNOLOGY JOINTLY DEVELOPED BY THE
PARTIES SHALL BE JOINTLY OWNED BY THE PARTIES WITHOUT THE DUTY TO ACCOUNT.
2.4 Technology License to LSI.
(a) [REDACTED]
(b) [REDACTED]
(c) [REDACTED]
2.5
USE OF TECHNOLOGY BY A WTM-OWNED COMPANY. Subject to LSI's advance written
approval, which shall not be unreasonably withheld or delayed, WTM shall have
the right to sublicense the rights granted in Section 2.1 to any WTM-Owned
Company, provided that such WTM-Owned Company shall be bound by and comply with
all of the relevant terms of this Agreement, to exercise such rights solely on
WTM's or such WTM-Owned Company's behalf. Any such sublicense may only remain in
effect for so long as (i) such WTM-Owned Company remains a WTM-Owned Company
within the definition of that term as set forth in Section 1 hereof and (ii) the
corresponding license to WTM hereunder is in effect.
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2.6 Additional Facilities. FOLLOWING THE THIRD ANNIVERSARY OF THE EFFECTIVE
DATE, WTM MAY REQUEST IN A WRITING DELIVERED TO LSI THE RIGHT TO EXERCISE THE
LICENSE RIGHTS GRANTED HEREIN AT ANOTHER WTM WAFER FABRICATION FACILITY IN
MALAYSIA OTHER THAN THE MALAYSIA FAB. FOLLOWING LSI'S WRITTEN APPROVAL OF SUCH
REQUEST, WHICH SHALL NOT BE UNREASONABLY WITHHELD OR DELAYED, THE DEFINITION OF
"MALAYSIA FAB" HEREUNDER SHALL BE DEEMED EXPANDED TO INCLUDE SUCH OTHER WTM
WAFER FABRICATION FACILITY. IN SUCH CASE, WTM SHALL BE SOLELY RESPONSIBLE FOR
TRANSFERRING THE PROCESS TECHNOLOGY AND ANY OTHER REQUIRED TECHNOLOGY TO SUCH
OTHER WTM WAFER FABRICATION FACILITY. WTM'S EXERCISE OF THE LICENSE RIGHTS AT
SUCH OTHER FACILITY SHALL BE SUBJECT IN ALL RESPECTS TO THE TERMS AND CONDITIONS
OF THIS AGREEMENT; PROVIDED, HOWEVER, LICENSE FEES IN ADDITION TO THOSE ALREADY
REQUIRED HEREUNDER SHALL NOT BE PAYABLE.
2.7 Packaging Technology. LSI SHALL GRANT WTM A FULLY-PAID, NON-EXCLUSIVE,
NON-TRANSFERABLE, NON-SUBLICENSABLE LICENSE TO LSI'S PLASTIC QUAD FLAT PACK
("PQFP") PACKAGING TECHNOLOGY, SUBJECT TO WTM PAYING FOR ANY SERVICES PROVIDED
IN CONNECTION WITH THE TRANSFER OF SUCH TECHNOLOGY. IN ADDITION, LSI WILL GRANT
WTM A NON-EXCLUSIVE, NON-TRANSFERABLE, NON-SUBLICENSABLE LICENSE, FOR
CONSIDERATION TO LSI TO BE MUTUALLY AGREED UPON, TO LSI'S BALL GRID ARRAY
("BGA") PACKAGING TECHNOLOGY, IN EACH CASE SUBJECT TO TERMS AND CONDITIONS TO BE
MUTUALLY AGREED AND SET FORTH IN A SEPARATE AGREEMENT.
2.8 FUTURE PROCESS TECHNOLOGIES. At such future time as may be requested by WTM,
LSI will enter into good faith negotiations with WTM with regard to the grant of
rights in future process technologies that may be developed by LSI; provided,
however, nothing hereby is intended as any assurance regarding the outcome of or
to prescribe or limit LSI's future activities with respect to process
development.
3. DELIVERABLES.
3.1 Documentation; Integration Software; COT Cell Libraries.
(a) Subject to the terms of this Agreement, LSI shall provide to WTM the
documentation for the Licensed Technology referenced in Exhibit 3.1 (such
documentation, the "Licensed Technology Documentation"). LSI shall provide the
Licensed Technology Documentation and updates thereto to WTM at such times as
are set forth in Exhibit 5.3(b) and the Project Plan.
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(b) THE LICENSED TECHNOLOGY DOCUMENTATION SHALL CONSIST OF THAT DOCUMENTATION
THAT IS PREPARED BY LSI IN ACCORDANCE WITH ITS NORMAL PRACTICES WITH REGARD TO
THE PREPARATION OF DOCUMENTATION OF SUCH NATURE AND CONTENT. SUCH DOCUMENTATION
SHALL BE PROVIDED TO WTM ON CD-ROM FORMAT AND SHALL BE IN THE ENGLISH LANGUAGE.
(c) ON A PERIODIC BASIS, WHICH THE PARTIES ANTICIPATE WILL BE NO LESS FREQUENTLY
THAN ONCE PER QUARTER, LSI SHALL PROVIDE TO WTM ALL MATERIAL UPDATES TO THE
LICENSED TECHNOLOGY DOCUMENTATION THAT LSI CREATES DURING THE TERM.
(d) SUBJECT TO THE TERMS OF THIS AGREEMENT, LSI SHALL PROVIDE THE INTEGRATION
SOFTWARE TO WTM PROMPTLY FOLLOWING WTM'S WRITTEN REQUEST THEREFOR OR AT SUCH
TIMES AS ARE SET FORTH IN EXHIBIT 5.3(B). IN ADDITION, ON A PERIODIC BASIS,
WHICH THE PARTIES ANTICIPATE WILL BE ONCE EACH QUARTER, LSI SHALL ALSO PROVIDE
UPDATES, UPGRADES OR ENHANCEMENTS, IF ANY EXIST, TO THE INTEGRATION SOFTWARE
THAT LSI DEVELOPS OR HAS DEVELOPED DURING THE TERM.
(e) LSI SHALL PROVIDE WTM WITH THE IDENTITY OF THE SOURCE(s) FOR THE COT CELL
LIBRARIES. LSI SHALL PROCURE FOR WTM FROM SUCH SOURCE(s) THE RIGHTS TO USE THE
COT CELL LIBRARIES IN CONJUNCTION WITH THE RIGHTS GRANTED BY LSI HEREUNDER AND
WILL PAY THE LICENSE FEES TO SUCH SOURCE(s) REQUIRED FOR SUCH PROCUREMENT. WTM
SHALL ACCEPT AND USE THE COT CELL LIBRARIES SUBJECT TO THE CUSTOMARY LICENSE
TERMS AND CONDITIONS REQUIRED BY SUCH SOURCE(s) AND SHALL EXECUTE ANY AND ALL
DOCUMENTATION WITH RESPECT THERETO THAT MAY BE REQUIRED OF ANY SUCH SOURCE(s).
3.2 Technical Assistance. SUBJECT TO THE TERMS OF THIS AGREEMENT, LSI SHALL
PROVIDE TO WTM THE TECHNICAL ASSISTANCE REFERENCED IN EXHIBIT 3.2.
3.3 Consultation Services. IN THE EVENT WTM REQUIRES SERVICES IN ADDITION TO
THOSE EXPRESSLY PROVIDED FOR UNDER THIS AGREEMENT, LSI SHALL MAKE REASONABLE
EFFORTS TO PROVIDE TO WTM SUCH ADDITIONAL SERVICES IN EXCHANGE FOR MUTUALLY
AGREEABLE ADDITIONAL COMPENSATION.
3.4 Equipment Set. THE EQUIPMENT SET CURRENTLY RECOMMENDED BY LSI FOR USE IN
IMPLEMENTING THE CORE PROCESSES AT THE MALAYSIAN FAB IS SET FORTH IN EXHIBIT
3.1. NOTHING SET FORTH IN THIS AGREEMENT SHALL REQUIRE LSI TO TRANSFER, LEASE,
OR OTHERWISE PROVIDE TO WTM ANY EQUIPMENT OR OTHER HARDWARE.
3.5 Training.
(a) IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, LSI SHALL ASSIST WTM,
INCLUDING BY PROVIDING TRAINING SERVICES AS SET FORTH IN EXHIBIT 3.5.
(b) THE PARTIES BELIEVE THAT, IN ORDER FOR THE WTM PERSONNEL TO GAIN THE
NECESSARY EXPERIENCE AND SKILLS TO BE ABLE TO CONSTRUCT, QUALIFY AND OPERATE THE
MALAYSIAN FAB BASED ON THE CORE PROCESSES, SUCH PERSONNEL WILL REQUIRE TRAINING
FROM LSI OF THE NATURE AND EXTENT AS DESCRIBED IN EXHIBIT 3.5. THE PARTIES
EXPECT THAT THE WTM PERSONNEL WILL OBTAIN SUCH TRAINING THROUGH BOTH DIRECT
TRAINING FROM LSI PERSONNEL IN ACCORDANCE WITH EXHIBIT 3.5 AND THROUGH THEIR
OBSERVATION OF AND TRAINING IN THE LSI FOUNDRY OPERATIONS IN THE GRESHAM FAB.
(c) THE TRAINING AND SERVICES TO BE PROVIDED BY LSI HEREUNDER INCLUDE REASONABLE
TRAINING BY LSI OF WTM PERSONNEL WITH RESPECT TO ANY IMPROVEMENTS AND DERIVATIVE
PROCESSES THAT MAY BE TRANSFERRED DURING THE TERM.
(d) IN THE EVENT A WTM EMPLOYEE TRAINED BY LSI IS UNABLE TO PERFORM AT THE
MALAYSIAN FAB THE FUNCTIONS FOR WHICH HE OR SHE HAS BEEN TRAINED, WTM AND LSI
SHALL DISCUSS WAYS TO ACCOMPLISH FURTHER TRAINING OF SUCH INDIVIDUAL. AFTER
DISCUSSION WITH LSI, IF WTM, IN GOOD FAITH, BELIEVES THAT ADDITIONAL TRAINING BY
LSI IS REQUIRED FOR SUCH INDIVIDUAL TO PROPERLY FUNCTION AT THE MALAYSIAN FAB,
LSI AND WTM SHALL MUTUALLY AGREE ON THE ADDITIONAL TRAINING REQUIRED.
3.6 Service Limit. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT,
WHEN LSI HAS PROVIDED OR OTHERWISE MADE AVAILABLE THE TRAINING AND OTHER
SERVICES AS REQUIRED BY THIS AGREEMENT, LSI SHALL HAVE NO FURTHER OBLIGATION TO
WTM IN EXCESS THEREOF. IN THE EVENT WTM REQUIRES ADDITIONAL TRAINING OR OTHER
SERVICES, LSI WILL MAKE REASONABLE EFFORTS TO ACCOMMODATE SUCH REQUIREMENT AND
AGREEMENT ON SUCH ADDITIONAL SERVICES PROVIDED BY LSI SHALL BE DETERMINED
PURSUANT TO THE CONSULTATION SERVICES REFERRED TO UNDER SECTION 3.3 ABOVE.
3.7 Timing of Transfer. LSI SHALL COMMENCE THE TRANSFER OF THE PROCESS
TECHNOLOGY TO WTM ONLY AFTER: (i) THE CORE PROCESSES MEET OR EXCEED THE PROCESS
TRANSFER STANDARDS AT THE GRESHAM FAB; AND (ii) THE PARTIES MUTUALLY AGREE THAT
THE CORE PROCESSES ARE READY TO BE TRANSFERRED TO THE MALAYSIAN FAB. LSI SHALL
TRANSFER ANY IMPROVEMENTS AND DERIVATIVE PROCESSES PROMPTLY AFTER SUCH
IMPROVEMENTS AND DERIVATIVE PROCESSES ARE QUALIFIED AT THE GRESHAM FAB.
3.8 Production Support. [REDACTED]
3.9 Engineering Changes to Process Deliverables. LSI SHALL PROVIDE TO WTM ALL
MATERIAL ENGINEERING CHANGE NOTICES ("ECNS") AND TEMPORARY ENGINEERING CHANGE
NOTICES ("TECNS") RELATED TO THE PROCESS TECHNOLOGY, INCLUDING ECNS RELATED TO
YIELD IMPROVEMENTS. AS PART OF THE PROJECT PLAN (TO BE DEVELOPED PURSUANT TO
SECTION 5.3) THE PARTIES WILL ESTABLISH A PERIODIC BASIS FOR DELIVERY OF SUCH
ECNS AND TECNS, THAT REFLECTS THE UNDERSTANDING THE ECNS GENERALLY SHOULD BE
DELIVERED ON A MONTHLY BASIS AND TECNS THAT RELATE TO MATERIAL IMPROVEMENTS IN
YIELD WILL BE DELIVERED AS SOON AS PRACTICABLE AFTER THEY ARE RELEASED TO THE
GRESHAM FAB.
3.10 CIM & Automation Assistance. SUBJECT TO THE TERMS AND CONDITIONS OF THIS
AGREEMENT, LSI SHALL PROVIDE TO WTM THE CIM AND AUTOMATION ASSISTANCE
DOCUMENTATION SET FORTH IN EXHIBIT 3.2, SECTION 1.3.
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<PAGE> 7
3.11 Loading.
(a) [REDACTED]
(b) [REDACTED]
3.12 Technology Transfer Costs.
(a) All expenses incurred by LSI with respect to the performance of its
obligations under this Agreement shall be the responsibility of LSI and no
reimbursement therefor shall be required of WTM. In the event LSI provides
additional services to WTM pursuant to Section 3.3, the Parties shall mutually
agree upon any reimbursement of expenses.
(b) WTM SHALL BE SOLELY RESPONSIBLE FOR ALL COSTS INCURRED BY WTM PERSONNEL,
INCLUDING BENEFITS, EXPENSES, REIMBURSEMENTS AND OTHER PAYMENTS INCLUDING
SALARY, LIVING, TRAVEL AND ALL OTHER OUT-OF-POCKET EXPENSES FOR ITS PERSONNEL IN
CONNECTION WITH THIS AGREEMENT, INCLUDING IN CONNECTION WITH ANY TRAVEL TO OR
WORK AT ANY LSI FACILITY.
(c) WTM SHALL BE SOLELY RESPONSIBLE FOR ALL COST ASSOCIATED WITH OR INCURRED IN
ESTABLISHING, EQUIPPING AND OPERATING THE MALAYSIAN FAB AND ANY AND ALL RAW
MATERIALS USED IN THE OPERATION OF THE MALAYSIAN FAB, INCLUDING IN THE
MANUFACTURING AND TESTING OF WAFERS.
3.13 WTM Responsibilities. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, WTM
SHALL BE SOLELY RESPONSIBLE FOR THE INSTALLATION AND IMPLEMENTATION OF THE
PROCESS TECHNOLOGY IN THE MALAYSIAN FAB. WITHOUT LIMITING THE FOREGOING, WTM
AGREES THAT THE EVENTS AND ACTIVITIES LISTED IN EXHIBIT 3.13 ARE WTM'S
RESPONSIBILITIES AND OBLIGATIONS AND THAT THE TIMELY COMPLETION OF WHICH ARE
CONDITIONS PRECEDENT TO FULL PERFORMANCE OF LSI'S OBLIGATIONS HEREUNDER.
3.14 No Support for Commercially Available Software. NOTWITHSTANDING ANY OTHER
PROVISION OF THIS AGREEMENT, LSI SHALL HAVE NO OBLIGATION UNDER THIS AGREEMENT
TO PROVIDE ANY ENGINEERING, TECHNICAL ASSISTANCE, CONSULTING OR OTHER SERVICES
WITH RESPECT TO ANY SOFTWARE PROVIDED TO WTM BY ANY THIRD PARTY.
3.15 PARTICIPATION OF OTHER LSI COMPANIES. In performing its obligations
hereunder, LSI's subsidiary and affiliated companies may participate and perform
any of such of LSI's obligations and to such extent as LSI may determine;
provided, however, in any such event LSI shall assure that the performance of
the obligations undertaken by LSI pursuant to this Agreement are performed in
accordance with the terms hereof.
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4. ACCEPTANCE.
4.1 Acceptance of Deliverables.
(a) THE PROJECT PLAN, WHICH WILL BE DEVELOPED PURSUANT TO SECTION 5.3 HEREUNDER,
WILL DEFINE THE TRANSFER METHODOLOGY, THE TIMING OF EACH DELIVERABLE AND THE
ACCEPTANCE CRITERIA. LSI SHALL, SUBJECT TO THE CONDITIONS PRECEDENT FOR EACH
DELIVERABLE HAVING BEEN FULFILLED, DELIVER THE DELIVERABLES AND WTM SHALL ACCEPT
THE DELIVERABLES IN ACCORDANCE WITH THE TIMETABLE TO BE SET FORTH IN THE PROJECT
PLAN.
(b) UPON DELIVERY OF EACH OF THE DELIVERABLES, WTM SHALL HAVE TEN (10) BUSINESS
DAYS IN WHICH TO ACCEPT A DELIVERABLE OR TO PROVIDE WRITTEN NOTIFICATION TO LSI
THAT SUCH DELIVERABLE IS NOT ACCEPTED, WHICH NOTICE ALSO SHALL SET FORTH THE
BASIS FOR WHICH WTM ASSERTS SUCH DELIVERABLE DOES NOT CONFORM TO THE APPLICABLE
ACCEPTANCE CRITERIA. IN THE EVENT WTM DOES NOT PROPERLY REJECT A DELIVERABLE
WITHIN SUCH TEN (10) DAY PERIOD, SUCH DELIVERABLE SHALL BE DEEMED ACCEPTED AS OF
THE DATE SUCH DELIVERABLE WAS DELIVERED.
5. COMMUNICATIONS.
5.1 Provision of Information by LSI.
(a) Prior to the delivery of Technical Information, LSI shall provide to WTM
information generated by LSI in its normal course of business and relevant to
the Process Technology regarding processes and equipment to allow WTM to
accelerate its readiness to use the Process Technology as licensed herein.
(b) ON A PERIODIC BASIS AS AGREED BY THE PARTIES, LSI SHALL INFORM WTM OF ANY
IMPROVEMENTS (INCLUDING WITHOUT LIMITATION YIELD IMPROVEMENTS), DERIVATIVE
PROCESSES OR INFORMATIONAL UPDATES OF THE DOCUMENTATION EMPLOYED BY LSI IN
CONNECTION WITH THE USE OF THE PROCESS TECHNOLOGY. PERIODICALLY, LSI SHALL
NOTIFY WTM OF ANY MATERIAL PROCESS CHANGES TO THE PROCESS TECHNOLOGY WHICH ARE
IN USE BY LSI.
(c) LSI SHALL PROVIDE TO WTM A GOOD-FAITH ESTIMATE OF ITS CURRENT TECHNOLOGY
"ROADMAP" RELATING TO THE PROCESS TECHNOLOGY AND SEMI-ANNUAL UPDATES THERETO.
SUCH TECHNOLOGY ROADMAP AS OF THE DATE OF THIS AGREEMENT IS ATTACHED AS EXHIBIT
5.1.
(d) EVERY QUARTER DURING THE TERM, LSI WILL PROVIDE TO WTM FOR INFORMATIONAL
PURPOSES THE FOLLOWING CRITICAL PROCESS AND MANUFACTURING PARAMETERS FOR THE
0.25 MICRON PROCESS (AND WHEN AVAILABLE, THE 0.18 MICRON PROCESS): (i) CRITICAL
PROCESS CPK'S, (ii) LINE YIELD, (iii) PCM TEST YIELD AND (iv) THE DEFECT
DENSITY.
5.2 Program Managers.
(a) Each Party hereby appoints a Program Manager whose primary responsibility
shall be to act as a focal point for the technical and commercial discussions
between them related to the subject matter of this Agreement, to include
monitoring within his or her respective company the distribution of Confidential
Information received from the other Party and assisting in the prevention of the
unauthorized disclosure of Confidential Information within the company and to
third parties. The Program Managers shall also be responsible for maintaining
pertinent records and arranging such conferences, visits, reports and other
communications as may be necessary to fulfill the terms and conditions of this
Agreement. Such conferences may include various levels of management of each
Party, as required. The names, addresses and telephone numbers of the Program
Managers of the Parties are as follows:
WTM: [REDACTED]
LSI: [REDACTED]
5.3 Project Plan.
(a) PROMPTLY FOLLOWING THE EFFECTIVE DATE OR SOONER AS MAY BE AGREED BY THE
PARTIES, THE PROGRAM MANAGERS WILL COMMENCE THE PREPARATION OF A PROJECT PLAN
HAVING AN OUTLINE AS SET FORTH IN EXHIBIT 5.3(a), WHICH WILL SET
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FORTH IN DETAIL THE STEPS AND TIMING OF THE SERVICES, INCLUDING THE TRAINING,
TRANSFER OF THE CORE PROCESSES HEREUNDER, DELIVERY OF THE DELIVERABLES AND THE
PAYMENT INSTALLMENTS AND MILESTONE SCHEDULE THEREFOR (THE "PROJECT PLAN"). THE
PROJECT MANAGERS WILL JOINTLY PERFORM WEEKLY REVIEWS OF THE PROGRESS AGAINST THE
PROJECT PLAN.
(b) THE PARTIES INTEND THAT THE PROJECT PLAN WILL BE CONSISTENT WITH THE
INSTALLMENT AND MILESTONE SCHEDULE SET FORTH IN EXHIBIT 5.3(b). HOWEVER, THE
DATES IN THE INSTALLMENT AND MILESTONE SCHEDULE ARE THE PARTIES' CURRENT
ESTIMATES OF THE PROJECT PLAN DATES AND THE DATES SET FORTH IN THE MUTUALLY
AGREED PROJECT PLAN MAY DIFFER. THE PROJECT PLAN SHOULD BE COMPLETED AND AGREED
TO BY THE PARTIES NO LATER THAN SIXTY (60) DAYS AFTER THE EFFECTIVE DATE. IN THE
EVENT THE PROJECT PLAN IS NOT COMPLETED WITHIN SIXTY (60) DAYS AFTER THE
EFFECTIVE DATE, THE PARTIES WILL PROMPTLY REFER THE ISSUE OF COMPLETING THE
PROJECT PLAN TO THE SENIOR MANAGEMENT REPRESENTATIVES OF THE PARTIES. THE SENIOR
MANAGEMENT REPRESENTATIVES SHALL WORK TOGETHER DILIGENTLY AND IN GOOD FAITH
TOWARD PROMPTLY COMPLETING THE PROJECT PLAN.
(c) AS PART OF THE PROJECT PLAN, EACH PARTY SHALL PROVIDE TO THE OTHER THE
ORGANIZATION CHART OF SUCH PARTY'S PERSONNEL THAT WILL PARTICIPATE IN SUCH
PARTY'S PERFORMANCE HEREUNDER AND, ON A PERIODIC BASIS, ALL UPDATES THERETO
WHILE THE SERVICES REMAIN TO BE PERFORMED.
6. PERSONNEL.
6.1 LSI Provision of Services.
(a) All personnel involved in performance of the Services by LSI shall be
employees of LSI or its affiliates; provided, however, LSI may use contractors
that have been approved by WTM and that have executed confidentiality agreements
in accordance with Section 10.4(a). Such personnel shall not for any purposes be
deemed employees or independent contractors of WTM. All such personnel shall be
experienced and skilled in the duties to which they are assigned as necessary
for the cost-effective and efficient performance of the Services.
(b) ALL PERSONNEL RECEIVING TRAINING FROM LSI HEREUNDER AND THAT OTHERWISE
PARTICIPATE IN THE INSTALLATION, QUALIFICATION OR USE OF THE PROCESS TECHNOLOGY
DURING THE TERM SHALL BE EMPLOYEES OF WTM; PROVIDED, HOWEVER, THAT WTM MAY USE
CONSULTANTS THAT HAVE EXECUTED CONFIDENTIALITY AGREEMENTS IN ACCORDANCE WITH
SECTION 10.4(a) AND WHO HAVE BEEN FULLY IDENTIFIED TO LSI IN WRITING. IN THE
EVENT LSI REASONABLY OBJECTS TO ANY CONSULTANT TO WTM, THE PARTIES SHALL
PROMPTLY MEET AND REACH A MUTUALLY AGREEABLE RESOLUTION OF LSI'S OBJECTIONS. ALL
SUCH PERSONNEL SHALL NOT FOR ANY PURPOSES BE DEEMED EMPLOYEES OR INDEPENDENT
CONTRACTORS OF LSI. ALL PERSONNEL OF WTM TO BE TRAINED BY LSI SHALL BE TRAINABLE
IN THE DUTIES TO WHICH THEY ARE TO BE ASSIGNED.
6.2 LSI Assistance in Kulim. THE PARTIES ACKNOWLEDGE THAT A PORTION OF THE
SERVICES WILL BE DELIVERED BY LSI PERSONNEL AT THE SITE AND, IN ACCORDANCE WITH
THE PROVISIONS OF SECTION 3.12(a) ABOVE SHALL BE THE RESPONSIBILITY OF LSI.
6.3 Compliance with Rules.
(a) Each WTM employee, prior to entering the LSI facilities or receiving
training or technical information pursuant to this Agreement, shall execute a
nondisclosure agreement reasonably acceptable to the Parties as a condition
precedent to admission or access to such facilities or receipt of technical
training. All of such WTM employees shall fully abide by all of the plant rules
and regulations of LSI.
(b) EACH LSI EMPLOYEE, PRIOR TO ENTERING THE WTM FACILITIES PURSUANT TO THIS
AGREEMENT, SHALL EXECUTE A NONDISCLOSURE AGREEMENT REASONABLY ACCEPTABLE TO THE
PARTIES AS A CONDITION PRECEDENT TO ADMISSION OR ACCESS TO SUCH FACILITIES. ALL
OF SUCH LSI EMPLOYEES SHALL FULLY ABIDE BY ALL OF THE PLANT RULES AND
REGULATIONS OF WTM.
(c) WTM SHALL INDEMNIFY AND HOLD LSI HARMLESS FROM ANY CLAIMS AGAINST LSI
ARISING OUT OF ANY INJURY OR DAMAGE TO LSI'S EMPLOYEES OR PHYSICAL PROPERTY
CAUSED BY WTM EMPLOYEES OR AGENTS WHILE ON LSI'S PREMISES. LSI SHALL INDEMNIFY
AND HOLD WTM HARMLESS FROM ANY CLAIMS AGAINST WTM ARISING OUT OF ANY INJURY OR
DAMAGE TO WTM'S EMPLOYEES OR PHYSICAL PROPERTY CAUSED BY LSI EMPLOYEES OR AGENTS
WHILE ON WTM'S PREMISES.
7. PAYMENTS.
7.1 General. IN CONSIDERATION OF LSI'S OBLIGATIONS HEREUNDER AND THE RIGHTS
GRANTED TO WTM HEREUNDER, WTM SHALL PAY TO LSI AN AGGREGATE OF UNITED STATES
DOLLARS ONE HUNDRED TWENTY MILLION ($120,000,000) (THE "AGGREGATE AMOUNT")
[REDACTED]
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7.2 Payment of Consideration.
(a) [REDACTED]
(b) [REDACTED]
(c) [REDACTED]
(d) [REDACTED]
7.3 Other General Terms of Payment.
(a) METHOD OF PAYMENT. ALL PAYMENTS TO LSI HEREUNDER SHALL BE MADE BY WIRE
TRANSFER OF DOLLARS TO AN ACCOUNT OR ACCOUNTS MAINTAINED BY LSI TO BE DESIGNATED
BY LSI TO WTM IN WRITING FROM TIME TO TIME.
(b) BUSINESS DAYS. IF THE DATE FOR ANY PAYMENT UNDER THIS SECTION 7 IS NOT A
BUSINESS DAY, THE RELEVANT PAYMENT SHALL BE MADE BY THE NEXT FOLLOWING BUSINESS
DAY.
(c) WITHHOLDING. WTM SHALL USE REASONABLE EFFORTS TO SECURE AN EXEMPTION FROM
WITHHOLDING TAXES FROM THE MALAYSIAN GOVERNMENT FOR ALL PAYMENTS MADE BY WTM TO
LSI HEREUNDER. IN THE EVENT THESE EFFORTS FAIL AND LSI DOES NOT PROVIDE
APPROPRIATE EVIDENCE OF ENTITLEMENT TO AN EXEMPTION FROM WITHHOLDING TAXES, WTM
SHALL WITHHOLD FROM PAYMENTS TO LSI AND PAY TO THE RELEVANT AUTHORITIES OF THE
FEDERATION OF MALAYSIA SUCH TAXES AS ARE REQUIRED BY MALAYSIAN LAW TO BE SO
WITHHELD AND PAID. THE WITHHOLDING OF SUCH TAX WILL REDUCE THE AMOUNT OTHERWISE
PAYABLE TO LSI BY WTM. WTM SHALL BE ENTITLED TO WITHHOLD ANY AMOUNTS REQUIRED TO
BE WITHHELD WITH RESPECT TO THE ISSUANCE OF STOCK PURSUANT TO THE SUBSCRIPTION
AGREEMENT FROM THE CASH INSTALLMENTS.
7.4 Suspension of LSI Performance for Non-Payment. IF WTM FAILS TO PAY ANY
INSTALLMENT WHEN DUE, IN ADDITION TO ANY OTHER RIGHTS AND REMEDIES THAT LSI MAY
HAVE FOR SUCH FAILURE, LSI SHALL HAVE THE RIGHT TO SUSPEND THE PERFORMANCE OF
ITS OBLIGATIONS UNDER THIS AGREEMENT, INCLUDING WITH RESPECT TO DELIVERY OF
TECHNICAL INFORMATION AND PROVIDING ANY SERVICES OR TRAINING AND SUCH SUSPENSION
SHALL NOT CONSTITUTE A BREACH OF THIS AGREEMENT BY LSI.
7.5 Interest on Late Payments. IF ANY PAYMENT DUE TO LSI FROM WTM UNDER THIS
AGREEMENT BECOMES OVERDUE, INTEREST EQUAL TO THE LOWER OF (a) LIBOR (LONDON
INTER-BANK OFFERED RATE) PLUS 6% AND (b) THE MAXIMUM RATE PERMITTED BY LAW,
SHALL BECOME DUE AND PAYABLE TO LSI ON SUCH OVERDUE AMOUNT CALCULATED ON A DAILY
BASIS UNTIL SUCH AMOUNT IS PAID. THE PAYMENT OF ANY SUCH INTEREST TO LSI SHALL
BE IN ADDITION TO ANY OTHER RIGHT OR REMEDY LSI MAY HAVE HEREUNDER OR AT LAW OR
IN EQUITY.
8. PUBLICITY.
8.1 PRESS RELEASE. THE PARTIES HAVE COOPERATED WITH EACH OTHER ON THE
PREPARATION AND RELEASE OF A MUTUALLY AGREEABLE PUBLIC ANNOUNCEMENT OF THEIR
RELATIONSHIP. DURING THE TERM AND FOR AS LONG THEREAFTER AS THE LICENSE GRANT
SURVIVES WTM SHALL HAVE THE RIGHT TO DISCLOSE TO THIRD PARTIES THAT IT LICENSED
THE PROCESS TECHNOLOGY FROM LSI.
8.2 NO USE OF LSI TRADEMARKS. WTM SHALL NOT, AT ANY TIME, IN ANY PLACE OR IN ANY
MANNER, UTILIZE THE TRADEMARKS, TRADE NAMES OR SERVICE MARKS OF LSI OR ITS
AFFILIATES OR ANY NAME, MARK, DEVICE OR LOGO CONFUSINGLY SIMILAR THERETO, IN
CONNECTION WITH WTM, THE BUSINESS ACTIVITIES OF WTM, THE MANUFACTURE, USE,
LEASE, SALE OR OTHER DISPOSITION OF PRODUCTS OR SERVICES OF WTM OR OTHERWISE.
9. REPRESENTATIONS AND WARRANTIES.
9.1 Representations and Warranties of Each Party. EACH PARTY HEREBY REPRESENTS
AND WARRANTS TO THE OTHER PARTY AS OF THE DATE FIRST SET FORTH ABOVE THAT:
(a) CORPORATE STANDING, ETC. SUCH PARTY IS A COMPANY DULY ORGANIZED, VALIDLY
EXISTING AND IN GOOD STANDING UNDER THE LAWS OF ITS JURISDICTION OF
INCORPORATION OR FORMATION, AND IS QUALIFIED TO DO BUSINESS IN ALL OTHER
JURISDICTIONS IN WHICH THE NATURE OF THE BUSINESS CONDUCTED BY IT MAKES SUCH
QUALIFICATION NECESSARY AND WHERE FAILURE SO TO QUALIFY WOULD HAVE A MATERIAL
ADVERSE EFFECT ON ITS FINANCIAL CONDITION, OPERATIONS, PROSPECTS OR BUSINESS.
(b) AUTHORITY, ETC. SUCH PARTY HAS ALL NECESSARY POWER AND AUTHORITY TO EXECUTE,
DELIVER AND PERFORM THIS AGREEMENT AND ITS OBLIGATIONS HEREUNDER. THE EXECUTION,
DELIVERY AND PERFORMANCE OF THIS AGREEMENT HAS
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BEEN DULY AUTHORIZED BY ALL NECESSARY ACTION ON ITS PART; IT HAS DULY AND
VALIDLY EXECUTED AND DELIVERED THIS AGREEMENT; AND THIS AGREEMENT CONSTITUTES A
LEGAL, VALID AND BINDING OBLIGATION OF SUCH PARTY ENFORCEABLE AGAINST SUCH PARTY
IN ACCORDANCE WITH THE TERMS HEREOF.
(c) NO VIOLATION OF LAW; LITIGATION. SUCH PARTY IS NOT IN VIOLATION OF ANY
APPLICABLE LAW PROMULGATED, OR JUDGMENT ENTERED, BY ANY GOVERNMENTAL AUTHORITY,
WHICH VIOLATION, INDIVIDUALLY OR IN THE AGGREGATE, WOULD MATERIALLY AND
ADVERSELY AFFECT ITS PERFORMANCE OF ANY OBLIGATIONS UNDER THIS AGREEMENT. THERE
ARE NO LEGAL OR ARBITRATION PROCEEDINGS OR ANY PROCEEDING BY OR BEFORE ANY
GOVERNMENTAL AUTHORITY, NOW PENDING OR (TO SUCH PARTY'S KNOWLEDGE) THREATENED
AGAINST IT WHICH, IF ADVERSELY DETERMINED, COULD HAVE A MATERIAL ADVERSE EFFECT
UPON ITS FINANCIAL CONDITION, OPERATIONS, PROSPECTS OR BUSINESS, AS A WHOLE, OR
ITS ABILITY TO PERFORM UNDER THIS AGREEMENT.
(d) NO CONFLICT OR BREACH. NONE OF THE EXECUTION, DELIVERY AND PERFORMANCE BY
SUCH PARTY OF THIS AGREEMENT CONFLICTS OR WILL CONFLICT WITH OR CONSTITUTES OR
WILL CONSTITUTE OR RESULT IN A BREACH OR VIOLATION OF ANY OF THE TERMS,
CONDITIONS OR PROVISIONS OF ANY LAW, RULE OR REGULATION OF ANY GOVERNMENTAL
AUTHORITY OR THE CHARTER DOCUMENTS, AS AMENDED, OF SUCH PARTY OR ANY ORDER,
WRIT, INJUNCTION, JUDGMENT OR DECREE OF ANY GOVERNMENTAL AUTHORITY AGAINST SUCH
PARTY OR BY WHICH IT OR ANY OF ITS PROPERTIES IS BOUND, OR ANY LOAN AGREEMENT,
INDENTURE, MORTGAGE, NOTE, RESOLUTION, BOND, OR CONTRACT OR OTHER AGREEMENT OR
INSTRUMENT TO WHICH SUCH PARTY IS A PARTY OR BY WHICH IT OR ANY OF ITS
PROPERTIES IS BOUND, OR CONSTITUTES OR WILL CONSTITUTE A DEFAULT THEREUNDER OR
WILL RESULT IN THE IMPOSITION OF ANY LIEN UPON ANY OF ITS PROPERTIES.
9.2 Representations and Warranties of LSI.
(a) [REDACTED]
(b) [REDACTED]
(c) [REDACTED]
(d) [REDACTED]
9.3 Representations and Warranties of WTM.
(a) [REDACTED]
(b) [REDACTED]
(c) [REDACTED]
(d) [REDACTED]
(e) [REDACTED]
9.4 Disclaimer. EXCEPT WITH RESPECT TO THE WARRANTIES EXPRESSLY MADE IN SECTIONS
9.1, 9.2 AND 9.3, ALL TECHNOLOGY AND RIGHTS THERETO PROVIDED BY A PARTY
HEREUNDER ARE PROVIDED "AS IS" AND WITHOUT WARRANTY OF ANY KIND. THE EXPRESS
TERMS OF THIS AGREEMENT ARE IN LIEU OF ALL OTHER WARRANTIES, CONDITIONS, TERMS,
UNDERTAKINGS AND OBLIGATIONS IMPLIED BY STATUTE, COMMON LAW, CUSTOM, TRADE
USAGE, COURSE OF DEALING OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE
WARRANTIES OF NON-INFRINGEMENT, QUALITY, MERCHANTABILITY AND SUITABILITY OR
FITNESS FOR ANY PARTICULAR PURPOSE,
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ALL OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED AND EXCLUDED TO THE FULLEST EXTENT
PERMITTED BY LAW.
WITHOUT LIMITING THE FOREGOING, WTM ACKNOWLEDGES AND AGREES: (I) THAT IT IS
WTM'S SOLE RESPONSIBILITY TO MANUFACTURE WAFERS IN, AND OTHERWISE OPERATE, THE
MALAYSIAN FAB; AND (II) THAT LSI MAKES NO WARRANTY WHATSOEVER, AND HEREBY
DISCLAIMS ANY WARRANTY, THAT WTM WILL SUCCESSFULLY ACCOMPLISH ANY OF THE
FOREGOING.
9.5 Export Controls. EACH PARTY HEREBY AGREES TO COMPLY WITH ANY AND ALL
APPLICABLE EXPORT CONTROL LAWS AND REGULATIONS NOW IN EFFECT OR AS MAY BE ISSUED
FROM TIME TO TIME BY THE OFFICE OF EXPORT ADMINISTRATION OF THE UNITED STATES
DEPARTMENT OF COMMERCE OR ANY OTHER GOVERNMENTAL AUTHORITY WHICH HAS
JURISDICTION RELATING TO THE EXPORT OF TECHNOLOGY FROM THE UNITED STATES OF
AMERICA. EACH PARTIES' OBLIGATIONS HEREUNDER SHALL BE CONDITIONED UPON EACH
PARTY RECEIVING ALL REQUIRED EXPORT AND OTHER REQUIRED AUTHORIZATIONS FROM THE
UNITED STATES GOVERNMENT AND ALL RELEVANT SUBDIVISIONS THEREOF. ON OR BEFORE THE
EFFECTIVE DATE, WTM SHALL PROVIDE LSI WITH A WRITTEN ASSURANCES STATEMENT IN THE
FORM SET FORTH IN EXHIBIT 9.5.
10. CONFIDENTIALITY.
10.1 Confidential Information.
(a) "CONFIDENTIAL INFORMATION" MEANS: (I) ANY INFORMATION DISCLOSED BY ONE PARTY
(THE "DISCLOSING PARTY") TO THE OTHER (THE "RECEIVING PARTY"), WHICH, IF IN
WRITTEN, GRAPHIC, MACHINE-READABLE OR OTHER TANGIBLE FORM IS MARKED AS
"CONFIDENTIAL" OR "PROPRIETARY", OR WHICH, IF DISCLOSED ORALLY OR BY
DEMONSTRATION, IS IDENTIFIED AT THE TIME OF INITIAL DISCLOSURE AS CONFIDENTIAL
AND REDUCED TO A WRITING MARKED "CONFIDENTIAL" AND DELIVERED TO THE RECEIVING
PARTY WITHIN THIRTY (30) DAYS OF SUCH DISCLOSURE.
(b) LSI'S CONFIDENTIAL INFORMATION SHALL INCLUDE, BUT NOT BE LIMITED TO, THE
FOLLOWING, WHETHER OR NOT SUCH INFORMATION IS MARKED AS CONFIDENTIAL OR REDUCED
TO A WRITING AS SET FORTH IN SECTION 10.1(A): (I) THE PROCESS TECHNOLOGY; (II)
ALL IMPROVEMENTS AND DERIVATIVE PROCESSES CREATED BY LSI; (III) LSI'S TECHNICAL
INFORMATION; (IV) THE INTEGRATION SOFTWARE; AND (V) ANY INFORMATION OBSERVED BY
OR DISCLOSED TO WTM EMPLOYEES AT LSI'S FACILITIES UNDER CIRCUMSTANCES REASONABLY
INDICATING THAT SUCH INFORMATION IS CONFIDENTIAL INFORMATION OF LSI.
(c) WTM'S CONFIDENTIAL INFORMATION SHALL INCLUDE, BUT NOT BE LIMITED TO, THE
FOLLOWING, WHETHER OR NOT SUCH INFORMATION IS MARKED AS CONFIDENTIAL OR REDUCED
TO A WRITING AS SET FORTH IN SECTION 10.1(A): (I) THE WTM PROCESS TECHNOLOGY TO
WHICH LSI AND WTM HAVE EXPRESSLY AGREED PRIOR TO TRANSFER TO LSI SHALL BE
CONFIDENTIAL INFORMATION AND (II) INFORMATION OF A NON-TECHNICAL NATURE OBSERVED
BY OR DISCLOSED TO LSI EMPLOYEES AT WTM'S FACILITIES UNDER CIRCUMSTANCES
REASONABLY INDICATING THAT SUCH INFORMATION IS CONFIDENTIAL INFORMATION OF WTM.
(d) NOTWITHSTANDING SECTIONS 10.1(A), 10.1(B) AND 10.1(C), CONFIDENTIAL
INFORMATION SHALL EXCLUDE INFORMATION THAT THE RECEIVING PARTY CAN DEMONSTRATE:
(i) WAS INDEPENDENTLY DEVELOPED BY THE RECEIVING PARTY WITHOUT ANY USE OF THE
DISCLOSING PARTY'S CONFIDENTIAL INFORMATION OR BY THE RECEIVING PARTY'S
EMPLOYEES OR OTHER AGENTS (OR INDEPENDENT CONTRACTORS HIRED BY THE RECEIVING
PARTY) WHO HAVE NOT BEEN EXPOSED TO THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION;
(ii) BECOMES KNOWN TO THE RECEIVING PARTY, WITHOUT RESTRICTION, FROM A SOURCE
OTHER THAN THE DISCLOSING PARTY, WHICH SOURCE HAD NO DUTY OF CONFIDENTIALITY TO
THE DISCLOSING PARTY;
(iii) WAS IN THE PUBLIC DOMAIN AT THE TIME IT WAS DISCLOSED OR BECOMES IN THE
PUBLIC DOMAIN THROUGH NO ACT OR OMISSION OF THE RECEIVING PARTY;
(iv) WAS RIGHTFULLY KNOWN TO THE RECEIVING PARTY, WITHOUT RESTRICTION, AT THE
TIME OF DISCLOSURE;
(v) WAS DISCLOSED WITH A PRIOR WRITTEN CONSENT OF THE DISCLOSING PARTY TO THE
RECEIVING PARTY'S DISCLOSURE; OR
(vi) IN THE CASE OF LSI AS THE RECEIVING PARTY, WTM PROCESS TECHNOLOGY AS TO
WHICH A SEPARATE WRITTEN AGREEMENT OF CONFIDENTIALITY HAS NOT BEEN ENTERED INTO
BETWEEN THE PARTIES PRIOR TO THE TIME SUCH INFORMATION IS RECEIVED BY LSI.
10.2 Compelled Disclosure. IF A RECEIVING PARTY BELIEVES THAT IT WILL BE
COMPELLED BY A COURT OR OTHER AUTHORITY TO DISCLOSE CONFIDENTIAL INFORMATION OF
THE DISCLOSING PARTY, IT SHALL GIVE THE DISCLOSING PARTY PROMPT WRITTEN NOTICE
SO THAT THE DISCLOSING PARTY MAY TAKE STEPS TO OPPOSE SUCH DISCLOSURE.
10.3 General Obligation of Confidentiality and Nondisclosure. THE RECEIVING
PARTY HEREBY RECOGNIZES THAT THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION
CONSTITUTES VALUABLE TRADE SECRETS OF THE DISCLOSING PARTY AND THAT INFORMATION
SIMILAR TO SUCH CONFIDENTIAL INFORMATION IS AVAILABLE, IF AT ALL, TO OTHER
PARTIES ONLY WITH THE EXPENDITURE OF SUBSTANTIAL TIME, EFFORT AND MONEY. THE
RECEIVING PARTY SHALL NOT USE THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION
EXCEPT AS EXPRESSLY PERMITTED HEREIN AND IN THE EXERCISE OF THE RIGHTS GRANTED
TO THE RECEIVING PARTY HEREUNDER. THE RECEIVING PARTY COVENANTS AND AGREES TO
KEEP STRICTLY SECRET AND CONFIDENTIAL THE DISCLOSING PARTY'S CONFIDENTIAL
INFORMATION, HOWEVER DISCLOSED BY THE DISCLOSING PARTY TO THE RECEIVING PARTY OR
LEARNED BY THE RECEIVING PARTY. EXCEPT AS PROVIDED IN SECTION 10.4, ONLY THE
RECEIVING PARTY, AND NOT ANY OTHER PERSON, INCLUDING ANY SUBSIDIARY OR AFFILIATE
OF THE RECEIVING PARTY, MAY USE THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION.
EXCEPT AS PROVIDED IN SECTION 10.4, THE RECEIVING PARTY AGREES TO KEEP THE
DISCLOSING PARTY'S CONFIDENTIAL INFORMATION CONFIDENTIAL IN PERPETUITY. ALL
DISCLOSING PARTY CONFIDENTIAL INFORMATION IS AND SHALL REMAIN EXCLUSIVELY OWNED
BY THE DISCLOSING PARTY, AND THE GRANT IN THIS AGREEMENT OF RIGHTS
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THEREIN OR ACCESS THERETO DOES NOT TRANSFER TO THE RECEIVING PARTY ANY PRESENT
OR FUTURE OWNERSHIP RIGHTS IN THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION.
10.4 Disclosure to Third Parties.
(a) THE RECEIVING PARTY SHALL BE PERMITTED TO DISCLOSE THE DISCLOSING PARTY'S
CONFIDENTIAL INFORMATION TO THE RECEIVING PARTY'S CONSULTANTS OR CONTRACTORS WHO
HAVE EXECUTED A NON-DISCLOSURE AGREEMENT WITH THE RECEIVING PARTY AND ONLY FOR
THE PURPOSE OF PERFORMING THE RECEIVING PARTY'S OWN RIGHTS AND OBLIGATIONS AS
PROVIDED HEREUNDER.
(b) WTM MAY DISCLOSE LSI'S CONFIDENTIAL INFORMATION TO ANY WTM-OWNED COMPANY,
INCLUDING SILTERRA (M) SDN. BHD., WTM'S WHOLLY OWNED SUBSIDIARY, ONLY TO THE
EXTENT NECESSARY OR APPROPRIATE, TO ENABLE THEM TO MARKET WTM'S WAFER
MANUFACTURING SERVICES TO CUSTOMERS AND AS OTHERWISE MAY BE PROVIDED IN THIS
AGREEMENT. WTM MAY DISCLOSE LSI'S CONFIDENTIAL INFORMATION TO ANY OF SUCH THIRD
PARTY'S RESPECTIVE EMPLOYEES SOLELY TO THE LIMITED EXTENT THAT SUCH DISCLOSURE
IS NECESSARY OR APPROPRIATE FOR THE EFFECTIVE PERFORMANCE OF THEIR RESPECTIVE
DUTIES OF EVALUATION, AND ONLY IF SUCH THIRD PARTY EXECUTES A NONDISCLOSURE
AGREEMENT ("NDA") IN THE FORM AND SUBSTANCE APPROVED BY LSI AND A COPY OF SUCH
AGREEMENT IS MAINTAINED AND MADE AVAILABLE FOR INSPECTION BY LSI UPON REQUEST.
(c) LSI MAY DISCLOSE WTM'S CONFIDENTIAL INFORMATION TO ITS SUBSIDIARIES AND
AFFILIATES TO THE EXTENT NECESSARY OR APPROPRIATE TO ENABLE THEM TO FULFILL THE
OBLIGATIONS OF LSI HEREUNDER.
(d) PURSUANT TO AN NDA ACCEPTABLE TO LSI IN FORM AND SUBSTANCE, WTM MAY DISCLOSE
THE COT CELL LIBRARIES TO ITS PROSPECTS AND CUSTOMERS SOLELY TO PERMIT SUCH
CUSTOMERS TO DESIGN SEMICONDUCTOR SHIPS TO BE FABRICATED AT THE MALAYSIAN FAB
USING THE PROCESS TECHNOLOGY.
10.5 Execution of Confidentiality and Secrecy Agreements. ANYTHING TO THE
CONTRARY IN THIS ARTICLE 10 NOTWITHSTANDING, WTM SHALL NOT DISCLOSE ANY LSI
CONFIDENTIAL INFORMATION TO ANY OF ITS RESPECTIVE EMPLOYEES OR OTHER PERSONNEL
UNLESS AND UNTIL SUCH EMPLOYEES OR OTHER PERSONNEL HAVE, PRIOR TO SUCH
DISCLOSURE, EXECUTED A WRITTEN NDA IN FORM AND SUBSTANCE SATISFACTORY TO LSI,
WITH RESPECT TO THE USE, DISPOSITION AND DISCLOSURE OF LSI CONFIDENTIAL
INFORMATION TO BE DISCLOSED TO EACH SUCH EMPLOYEE OR OTHER PERSONNEL OF WTM.
10.6 Measures to Compel Compliance. TO FURTHER IMPLEMENT THE COVENANTS AND
OBLIGATIONS OF THE RECEIVING PARTY PURSUANT TO THIS ARTICLE 10, THE RECEIVING
PARTY SHALL TAKE ALL COMMERCIALLY REASONABLE EFFORTS, INCLUDING, BUT NOT LIMITED
TO COURT PROCEEDINGS AT ITS OWN EXPENSE, TO COMPEL COMPLIANCE BY ITS RESPECTIVE
EMPLOYEES, OTHER PERSONS AND ANY THIRD PARTY. THE RECEIVING PARTY REPRESENTS AND
WARRANTS THAT IT IS NOT SUBJECT TO ANY LAWS OR REGULATIONS THAT WOULD PROHIBIT
OR IMPEDE ITS STRICT COMPLIANCE WITH THE TERMS OF THIS ARTICLE 10. THE RECEIVING
PARTY SHALL PROMPTLY NOTIFY THE DISCLOSING PARTY IN WRITING OF ANY UNAUTHORIZED
DISCLOSURE OF THE DISCLOSING PARTY'S CONFIDENTIAL INFORMATION.
10.7 WTM Procedures. AS SOON AS PRACTICABLE AFTER THE DATE OF THIS AGREEMENT,
WTM SHALL ESTABLISH AND IMPLEMENT RULES AND PROCEDURES WITH THE COOPERATION OF
LSI WHICH ARE NOT INCONSISTENT HEREWITH AND WHICH ARE SUFFICIENT TO COMPLY WITH
WTM'S OBLIGATIONS SET FORTH IN THIS ARTICLE 10, AS WELL AS FOR THE PROTECTION OF
THE INTELLECTUAL PROPERTY OF LSI AND LSI CUSTOMERS, WHICH PROCEDURES SHALL
REQUIRE THE PRIOR WRITTEN APPROVAL OF LSI, WHICH APPROVAL SHALL NOT BE
UNREASONABLY WITHHELD BY LSI.
10.8 Right of Inspection, Audit and Recommendation. AT ANY TIME UPON LSI'S
WRITTEN REQUEST AND REASONABLE NOTICE, WTM SHALL PERMIT REPRESENTATIVES OF LSI
TO INSPECT WTM'S FACILITIES AND TO REVIEW AND AUDIT THE RULES AND PROCEDURES
ESTABLISHED BY WTM AS REQUIRED BY SECTION 10.7 FOR PURPOSES OF DETERMINING THE
SUFFICIENCY OF SUCH RULES AND PROCEDURES AND THEIR IMPLEMENTATION. FURTHERMORE,
LSI SHALL HAVE THE RIGHT TO MAKE RECOMMENDATIONS TO WTM FOR COMPLYING WITH WTM'S
OBLIGATIONS SET FORTH IN THIS AGREEMENT. WTM SHALL IMPLEMENT ALL SUCH REASONABLE
RECOMMENDATIONS WITHIN A REASONABLE TIME AFTER WRITTEN REQUEST BY LSI.
10.9 LSI Right to Suspend Delivery of Technical Information of LSI. IF WTM
MATERIALLY BREACHES ANY PROVISION OF THIS ARTICLE 10 THEN LSI SHALL HAVE THE
RIGHT TO SUSPEND ITS OBLIGATIONS UNDER THIS AGREEMENT WITH RESPECT TO DELIVERY
OF TECHNICAL INFORMATION OR CONFIDENTIAL INFORMATION WITHOUT BEING IN BREACH OF
THIS AGREEMENT. THE FOREGOING SHALL BE IN ADDITION TO ANY OTHER RIGHT OR REMEDY
LSI MAY HAVE HEREUNDER OR IN LAW OR IN EQUITY.
10.10 Confidentiality of Agreement. EACH PARTY AGREES THAT THE TERMS AND
CONDITIONS, BUT NOT THE EXISTENCE, OF THIS AGREEMENT AND THE RELATED AGREEMENTS
SHALL BE TREATED AS THE OTHER'S CONFIDENTIAL INFORMATION AND THAT NO REFERENCE
TO THE TERMS AND CONDITIONS OF THIS AGREEMENT OR TO ACTIVITIES PERTAINING
THERETO CAN BE MADE IN ANY FORM OF PUBLIC OR COMMERCIAL ADVERTISING WITHOUT THE
PRIOR WRITTEN CONSENT OF THE OTHER PARTY; PROVIDED, HOWEVER, THAT EACH PARTY MAY
DISCLOSE THE TERMS AND CONDITIONS OF THIS AGREEMENT: (i) AS REQUIRED BY ANY
COURT OR OTHER GOVERNMENTAL BODY; (ii) AS OTHERWISE REQUIRED BY LAW; (iii) TO
LEGAL COUNSEL OF THE PARTIES; (iv) IN CONNECTION WITH THE REQUIREMENTS OF AN
INITIAL PUBLIC OFFERING, SECURITIES FILING OR OTHER SECURITIES LAWS; (v) IN
CONFIDENCE, TO ACCOUNTANTS, BANKS, AND FINANCING SOURCES AND THEIR ADVISORS;
(vi) IN CONFIDENCE, IN CONNECTION WITH THE ENFORCEMENT OF THIS AGREEMENT OR
RIGHTS UNDER THIS AGREEMENT; OR (vii) IN CONFIDENCE, IN CONNECTION WITH A MERGER
OR ACQUISITION OR PROPOSED MERGER OR ACQUISITION, OR THE LIKE.
10.11 Remedies. UNAUTHORIZED USE BY A PARTY OF THE OTHER PARTY'S CONFIDENTIAL
INFORMATION WILL DIMINISH THE VALUE OF SUCH INFORMATION. THEREFORE, IF A PARTY
BREACHES ANY OF ITS OBLIGATIONS WITH RESPECT TO CONFIDENTIALITY OR USE OF
CONFIDENTIAL INFORMATION HEREUNDER, THE OTHER PARTY SHALL BE ENTITLED TO SEEK
EQUITABLE RELIEF TO PROTECT ITS INTEREST THEREIN, INCLUDING INJUNCTIVE RELIEF,
AS WELL AS MONEY DAMAGES. IN THE EVENT A PARTY IS TO ENTER INTO ANY JOINT
DEVELOPMENT WORK WITH ANY THIRD PARTY, SUCH PARTY WARRANTS THAT THE OTHER
PARTY'S CONFIDENTIAL INFORMATION PROVIDED TO SUCH PARTY HEREUNDER SHALL NEITHER
BE USED FOR SUCH JOINT DEVELOPMENT WORK NOR BE DISCLOSED TO ANY THIRD PARTY
UNLESS EXPRESSLY OTHERWISE PROVIDED HEREUNDER.
10.12 Residuals. EACH PARTY SHALL BE FREE, AND EACH PARTY HEREBY GRANTS TO THE
OTHER PARTY THE RIGHT, TO USE FOR ANY PURPOSE THE RESIDUALS RESULTING FROM
ACCESS TO OR WORK WITH THE CONFIDENTIAL INFORMATION. "RESIDUALS" MEANS
INFORMATION RETAINED IN THE UNAIDED MEMORY OF AN INDIVIDUAL WHO HAS HAD ACCESS
TO CONFIDENTIAL INFORMATION WITHOUT CONSCIOUS ATTEMPT BY SUCH INDIVIDUAL TO
MEMORIZE SUCH INFORMATION. NO PARTY SHALL HAVE ANY OBLIGATION TO LIMIT OR
RESTRICT THE ASSIGNMENT OF ANY INDIVIDUAL WHO HAS HAD ACCESS TO THE OTHER
PARTY'S CONFIDENTIAL INFORMATION OR TO PAY ROYALTIES FOR ANY WORK SOLELY
RESULTING FROM THE USE OF RESIDUALS.
11. EVENTS OF DEFAULT AND REMEDIES.
11.1 Definition of Event of Default. AN EVENT OF DEFAULT ("EVENT OF DEFAULT")
UNDER THIS AGREEMENT SHALL BE DEEMED TO EXIST UPON THE OCCURRENCE OF ANY ONE OR
MORE OF THE FOLLOWING EVENTS:
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(a) [REDACTED]
(b) [REDACTED]
(c) IF A PARTY SHALL FILE A VOLUNTARY PETITION IN BANKRUPTCY UNDER ANY PROVISION
OF ANY FEDERAL OR STATE BANKRUPTCY LAW OR A PETITION FOR VOLUNTARY WINDING-UP
UNDER THE UNITED STATES FEDERAL BANKRUPTCY CODE OR THE MALAYSIAN COMPANIES ACT
1965 OR SHALL CONSENT TO THE FILING OF ANY BANKRUPTCY OR REORGANIZATION PETITION
AGAINST IT UNDER SUCH APPLICABLE OR SIMILAR LAW; OR, WITHOUT LIMITATION OF THE
GENERALITY OF THE FOREGOING, IF A PARTY SHALL FILE A PETITION OR ANSWER OR
CONSENT SEEKING RELIEF IN A PROCEEDING UNDER ANY OF THE PROVISIONS OF THE UNITED
STATES FEDERAL BANKRUPTCY CODE OR UNDER THE MALAYSIAN COMPANIES ACT 1965
PURSUANT TO THE COMPANIES (WINDING UP) RULES OR PURSUANT TO ANY OTHER SIMILAR
STATUTE, RULE OR LAW APPLICABLE TO SUCH PARTY, OR AN ANSWER ADMITTING THE
MATERIAL ALLEGATIONS OF A PETITION FILED AGAINST IT IN SUCH A PROCEEDING; OR IF
A PARTY SHALL MAKE AN ASSIGNMENT FOR THE BENEFIT OF ITS CREDITORS; OR IF A PARTY
SHALL ADMIT IN WRITING ITS INABILITY TO PAY ITS DEBTS GENERALLY AS THEY BECOME
DUE; OR IF A PARTY SHALL CONSENT TO THE APPOINTMENT OF A RECEIVER OR RECEIVERS,
OR TRUSTEE OR TRUSTEES, OR LIQUIDATOR OR LIQUIDATORS OF IT OR OF ALL OR ANY PART
OF ITS PROPERTY.
11.2 Remedies for Event of Default. UPON THE OCCURRENCE AND DURING THE
CONTINUATION OF ANY EVENT OF DEFAULT HEREUNDER, THE NON-DEFAULTING PARTY SHALL
HAVE THE RIGHT TO:
(a) TERMINATE THIS AGREEMENT PURSUANT TO SECTION 13.2; AND/OR
(b) SUBJECT TO THE LIMITATIONS IMPOSED BY SECTION 14, PURSUE ANY OTHER REMEDY
GIVEN UNDER THIS AGREEMENT OR AT LAW OR IN EQUITY OR OTHERWISE.
12. LIMITATIONS ON LIABILITY. [REDACTED]
13. TERM AND TERMINATION.
13.1 Term.
(a) THIS AGREEMENT SHALL BEGIN ON THE EFFECTIVE DATE, SUBJECT TO THE RECEIPT OF
ALL NECESSARY APPROVALS OF GOVERNMENT AUTHORITIES WHICH ARE CONDITIONS PRECEDENT
AND THE OCCURRENCE OF ALL OTHER CONDITIONS PRECEDENT, AND CONTINUE IN EFFECT FOR
A PERIOD OF TIME OF FIVE (5) YEARS FROM THE EFFECTIVE DATE UNLESS TERMINATED
EARLIER PURSUANT TO THIS ARTICLE 13 (THE "TERM").
(b) IN THE EVENT THAT ALL OF THE CONDITIONS PRECEDENT HAVE NOT OCCURRED WITHIN
90 DAYS OF THE DATE FIRST SET FORTH ABOVE (OR SUCH LATER DATE AS MAY BE MUTUALLY
AGREED TO IN WRITING BY THE PARTIES) THIS AGREEMENT SHALL BE NULL AND VOID AND,
SAVE AND EXCEPT FOR ARTICLE 10 ("CONFIDENTIALITY") AND SECTION 17.1 ("EXPENSES")
HEREIN AND ANY ANTECEDENT BREACH HERETO, NEITHER OF THE PARTIES SHALL HAVE ANY
CLAIM AGAINST THE OTHER IN RESPECT OF THIS AGREEMENT. THE PARTIES AGREE THAT THE
PROVISIONS LISTED IN ARTICLE 10 ("CONFIDENTIALITY") AND SECTION 17.1
("EXPENSES") ARE EFFECTIVE UPON THE DATE OF THIS AGREEMENT AND SHALL CONTINUE IN
FULL FORCE AND EFFECT AND SURVIVE THE TERMINATION OF THIS AGREEMENT.
(c) Each Party, at its own expense, shall upon the execution of this Agreement,
use reasonable efforts to cause the Conditions Precedent for which it is
responsible to be fulfilled. Each Party shall promptly notify the other Party in
writing after the Conditions Precedent for which it is responsible have been
fulfilled and such notices shall include a copy of the relevant Government
Approvals or other available evidence thereof.
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13.2 Early Termination. NOTWITHSTANDING SECTION 13.1, THIS AGREEMENT MAY BE
TERMINATED PRIOR TO THE EXPIRATION OF THE TERM AS FOLLOWS:
(a) BY WRITTEN AGREEMENT OF THE PARTIES; OR
(b) UPON WRITTEN NOTICE GIVEN BY THE NON-DEFAULTING PARTY UPON THE OCCURRENCE OF
AN EVENT OF DEFAULT.
13.3 Effect of Termination. UPON THE TERMINATION OR EXPIRATION OF THIS AGREEMENT
FOR WHATEVER CAUSE, WHETHER DUE TO THE EXPIRATION OF THE TERM IN ACCORDANCE WITH
SECTION 13.1 OR TO THE EARLY TERMINATION OF THIS AGREEMENT PURSUANT TO SECTION
13.2:
(a) THE PARTIES SHALL HAVE NO FURTHER DUTIES, OBLIGATIONS OR LIABILITIES TOWARDS
EACH OTHER UNDER THIS AGREEMENT, EXCEPT AS OTHERWISE SET FORTH IN THIS ARTICLE
13;
(b) THE PARTIES SHALL HAVE ANY DUTIES, OBLIGATIONS OR LIABILITIES THAT HAVE
ACCRUED PRIOR TO THE EFFECTIVE DATE OF SUCH TERMINATION OR EXPIRATION, INCLUDING
WITH RESPECT TO DAMAGES OR HARM SUFFERED BY THE NON-DEFAULTING PARTY PRIOR OR
AFTER SUCH TERMINATION OR EXPIRATION;
(c) [REDACTED]
(d) THE LICENSE TO LSI PROVIDED BY SECTION 2.4 SHALL PERPETUALLY AND IRREVOCABLY
CONTINUE;
(e) UNLESS THE LICENSE TO WTM PROVIDED BY SECTION 2.1 SURVIVES SUCH EXPIRATION
OR TERMINATION, WTM SHALL RETURN TO LSI ALL COPIES OF LSI'S CONFIDENTIAL
INFORMATION IN WTM'S POSSESSION OR CONTROL; AND
(f) THE DUTIES, OBLIGATIONS OR LIABILITIES UNDER THE FOLLOWING PROVISIONS SHALL
SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT: SECTION 1
("DEFINITIONS"), SECTION 2.3 ("OWNERSHIP OF INTELLECTUAL PROPERTY"), SECTION 10
("CONFIDENTIALITY"), SECTION 12 ("LIMITATIONS ON LIABILITY"), THIS SECTION 13.3
("EFFECT OF TERMINATION"), SECTION 15 ("INDEMNIFICATION") SECTION 16 ("DISPUTE
RESOLUTION"), AND SECTION 17 ("MISCELLANEOUS").
14. FORCE MAJEURE. In the event that either Party is prevented from performing
or unable to perform any of its obligations under this Agreement, except an
obligation to pay money, due to any act of God, fire, casualty, flood,
earthquake, war, strike, lockout, epidemic, riot, insurrection, or any other
similar cause beyond the reasonable control of the Party invoking this section
(a "Force Majeure") and if such Party shall have used its best efforts to
mitigate the effects of such Force Majeure, such Party shall give prompt written
notice to the other Party, its nonperformance shall be excused, and the time for
the performance shall be extended for the period of delay or inability to
perform due to such occurrences. Notwithstanding the foregoing, if such Party is
not able to perform within ninety (90) days after the event giving rise to the
excuse of Force Majeure, such non-performance shall no longer be excused and the
other Party shall be entitled to terminate this Agreement without further
liability, except as provided in Section 13.3(f) and except for the liability to
pay money or deliver equity, for which the rights thereto were earned prior to
the termination of this Agreement.
15. INDEMNIFICATION.
15.1 Indemnity [REDACTED]
15.2 Conditions. [REDACTED]
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16. DISPUTE RESOLUTION.
16.1 General Procedure.
(a) The Parties shall use all reasonable efforts to settle disputes arising
under this Agreement by mutual agreement.
(b) IN THE EVENT ANY DISPUTE IS NOT SO SETTLED, A PARTY WHICH BELIEVES A DISPUTE
EXISTS SHALL PROVIDE A WRITTEN NOTICE OF THE DISPUTE (THE "DISPUTE NOTICE") TO
THE SENIOR MANAGEMENT REPRESENTATIVES OF THE OTHER PARTY SEEKING RESOLUTION OF
THE DISPUTE BY MUTUALLY AGREED UPON MEETING(s) OR TELECONFERENCE(s) OF SUCH
REPRESENTATIVES. THE INITIAL SENIOR MANAGEMENT REPRESENTATIVES DESIGNATED BY THE
PARTIES (AND WHO MAY BE REPLACED BY THE RESPECTIVE APPOINTING PARTY) TO RESOLVE
DISPUTES PURSUANT TO THIS SECTION 16.1 ARE:
WTM Representative: [REDACTED]
LSI Representative: [REDACTED]
(c) IF THE DISPUTE IS NOT RESOLVED WITHIN THIRTY (30) DAYS FOLLOWING RECEIPT BY
THE RECEIVING PARTY OF THE DISPUTE NOTICE (THE "INTERNAL DISPUTE RESOLUTION
PERIOD"), EITHER PARTY MAY COMMENCE SUIT IN A STATE OR FEDERAL COURT LOCATED IN
SAN FRANCISCO IN THE STATE OF CALIFORNIA UNLESS THE PARTIES MUTUALLY AGREE TO
ARBITRATION IN ACCORDANCE WITH SECTION 16.2.
16.2 Arbitration. IF ANY DISPUTE BETWEEN THE PARTIES IS NOT RESOLVED PURSUANT TO
SECTION 16.1, PRIOR TO THE EXPIRATION OF THE INTERNAL DISPUTE RESOLUTION PERIOD
AND THE PARTIES AGREE IN WRITING TO ARBITRATE SUCH DISPUTE, THE PARTIES SHALL
SUBMIT SUCH DISPUTE TO BINDING ARBITRATION CONDUCTED PURSUANT TO THE FOLLOWING
PROCEDURE:
(a) THE PARTY SEEKING ARBITRATION HEREUNDER SHALL REQUEST SUCH ARBITRATION IN
WRITING, WHICH WRITING SHALL INCLUDE A CLEAR STATEMENT OF THE MATTER(s) IN
DISPUTE, SHALL NAME ONE ARBITRATOR APPOINTED BY SUCH PARTY, AND SHALL BE
DELIVERED TO THE OTHER PARTY. WITHIN TWENTY (20) BUSINESS DAYS AFTER RECEIPT OF
SUCH REQUEST, THE OTHER PARTY SHALL APPOINT ONE ARBITRATOR, OR IN DEFAULT
THEREOF, SUCH ARBITRATOR SHALL BE NAMED AS SOON AS PRACTICABLE IN ACCORDANCE
WITH THE UNITED NATIONS COMMISSION ON INTERNATIONAL TRADE LAW (UNCITRAL)
ARBITRATION RULES (THE "ARBITRATION RULES"). THE TWO ARBITRATORS APPOINTED BY
THE PARTIES SHALL APPOINT A THIRD ARBITRATOR WITHIN TEN (10) BUSINESS DAYS AFTER
THE APPOINTMENT OF THE SECOND ARBITRATOR, OR FAILING SUCH AGREEMENT ON A THIRD
ARBITRATOR BY THE TWO ARBITRATORS SO APPOINTED, A THIRD ARBITRATOR SHALL BE
APPOINTED IN ACCORDANCE WITH THE ARBITRATION RULES.
(b) THE ARBITRATION HEARING SHALL BE HELD IN SAN FRANCISCO, CALIFORNIA, UNITED
STATES, ON AT LEAST TWENTY (20) BUSINESS DAYS' PRIOR WRITTEN NOTICE TO THE
PARTIES, AND SHALL BE CONDUCTED IN THE ENGLISH LANGUAGE. EXCEPT AS OTHERWISE
PROVIDED HEREIN, THE PROCEEDINGS SHALL BE CONDUCTED IN ACCORDANCE WITH THE
ARBITRATION RULES; PROVIDED, THAT THE GOVERNING LAW SHALL BE AS SPECIFIED IN
SECTION 17.4. ANY DECISION OF THE ARBITRATORS, INCLUDING A DECISION REGARDING AN
ALLOCATION OF COSTS CONSISTENT WITH THIS SECTION 16.2, SHALL BE JOINED IN BY AT
LEAST TWO OF THE ARBITRATORS AND SHALL BE SET FORTH IN A WRITTEN AWARD WHICH
SHALL STATE THE BASIS OF THE AWARD AND SHALL INCLUDE BOTH FINDINGS OF FACT AND
CONCLUSIONS OF LAW. THE ARBITRATORS SHALL NOT HAVE THE POWER TO AWARD PUNITIVE
DAMAGES OR COSTS OR DAMAGES FOR ATTORNEYS' OR CONSULTANTS' FEES. AN AWARD
RENDERED PURSUANT TO THE FOREGOING, SHALL BE FINAL AND BINDING ON THE PARTIES,
AND JUDGMENT THEREON MAY BE ENTERED OR ENFORCEMENT THEREOF SOUGHT BY ANY PARTY
IN ANY COURT OF COMPETENT JURISDICTION.
(c) UNLESS OTHERWISE SET FORTH IN THE AWARD OF THE ARBITRATORS, EACH PARTY SHALL
BEAR THE COSTS OF ITS APPOINTED ARBITRATOR AND ITS OWN ATTORNEYS' AND
CONSULTANTS' FEES, AND THE COSTS OF THE THIRD ARBITRATOR SHALL BE SHARED EQUALLY
BY THE PARTIES. ADDITIONAL INCIDENTAL COSTS OF ARBITRATION SHALL BE PAID FOR BY
THE NON-PREVAILING PARTY IN THE ARBITRATION; PROVIDED, THAT WHERE THE FINAL
DECISION OF THE ARBITRATORS IS NOT CLEARLY IN FAVOR OF EITHER PARTY, SUCH
INCIDENTAL COSTS SHALL BE SHARED EQUALLY BY THE PARTIES.
(d) PENDENCY OF DISPUTE. THE EXISTENCE OF ANY DISPUTE OR CONTROVERSY UNDER THIS
AGREEMENT OR THE PENDENCY OF THE DISPUTE SETTLEMENT OR RESOLUTION PROCEDURES SET
FORTH ABOVE SHALL NOT IN AND OF THEMSELVES RELIEVE OR EXCUSE ANY PARTY HERETO
FROM ITS ONGOING DUTIES AND OBLIGATIONS UNDER THIS AGREEMENT OR UNDER ANY OTHER
AGREEMENT BETWEEN THE PARTIES.
17. MISCELLANEOUS.
17.1 Expenses. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT OR THE
RELATED AGREEMENTS, EACH PARTY TO THIS AGREEMENT SHALL BEAR ALL EXPENSES
INCURRED BY IT IN CONNECTION WITH THE PREPARATION AND NEGOTIATION OF THIS
AGREEMENT AND THE RELATED AGREEMENTS AND IN THE CONSUMMATION OF THE TRANSACTIONS
CONTEMPLATED HEREBY AND THEREBY.
17.2 Assignment.
(a) WTM shall not assign or transfer this Agreement or any rights or obligations
under this Agreement, including to any Governmental Entity, voluntarily,
involuntarily, by operation of law, in connection with a change of control or
otherwise, without the prior written consent of LSI, which shall not be
unreasonably withheld or delayed. LSI shall
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not withhold its consent unless it has a reasonable basis for believing the
acquiring party is a competitor of LSI or may allow access to LSI's Confidential
Information to any party otherwise than as permitted hereunder. During the Term
as used in the foregoing sentence, "change of control" means a change in
ownership or control of [REDACTED] or more of the common stock of WTM by one or
more parties acting in concert in one or more transactions. Thereafter, "change
of control" shall mean a change in ownership or control [REDACTED] or more of
the common stock of WTM by one or more parties acting in concert in one or more
transactions. WTM may, upon written notice to LSI, assign this Agreement to any
WTM-Owned Company, provided such entity agrees in writing to be bound by all the
terms and conditions hereof and WTM remains liable for the performance of such
WTM-Owned Company's obligations hereunder. Any assignment or transfer of this
Agreement made in contravention of the terms hereof shall be null and void.
(b) LSI shall not assign or transfer this Agreement or any rights or obligations
under this Agreement, including to any Governmental Entity, voluntarily,
involuntarily, by operation of law, without the prior written consent of WTM,
which shall not be unreasonably withheld or delayed. Notwithstanding the
foregoing, LSI may assign or transfer this Agreement and rights or obligations
under this Agreement pursuant to a merger, consolidation or reorganization of
LSI, pursuant to an acquisition of LSI (whether by sale of all or substantially
all of LSI's assets or by sale of LSI stock) or to a subsidiary or affiliate of
LSI, so long as (x) such assignee of LSI intends to continue, in substantially
the same manner, the line of business conducted by LSI prior to the assignment,
(y) LSI either assigns, licenses or sublicenses sufficient rights to the
relevant Intellectual Property Rights licensed hereunder to such assignee, and
(z) such assignee of LSI is or will be capable of providing equivalent Services
as LSI.
(c) Subject to the foregoing (a) and (b), this Agreement shall be binding on and
inure to the benefit of the Parties' respective successors and permitted
assigns.
17.3 Notices and Deliveries. ANY WRITTEN NOTICE OR COMMUNICATION TO A PARTY
REQUIRED OR PERMITTED UNDER THIS AGREEMENT, AND THE DELIVERY OF ANY OTHER
MATERIAL PURSUANT TO THIS AGREEMENT, SHALL BE DEEMED TO HAVE BEEN DULY GIVEN AND
RECEIVED (i) ON THE DATE OF SERVICE OR DELIVERY, IF SERVED OR DELIVERED
PERSONALLY OR SENT BY FACSIMILE TRANSMISSION (AND CONFIRMED AS TRANSMITTED BY A
TRANSMISSION SLIP) TO THE PARTY TO WHOM NOTICE OR THE DELIVERY IS TO BE GIVEN,
OR (ii) ON THE TENTH (10TH) DAY AFTER MAILING, IF MAILED BY FIRST CLASS
REGISTERED OR CERTIFIED MAIL IF MAILED NATIONALLY OR BY REGISTERED AIRMAIL IF
MAILED INTERNATIONALLY, POSTAGE PREPAID, AND ADDRESSED TO THE PARTY TO WHOM
NOTICE IS TO BE GIVEN AT THE ADDRESS SET FORTH BELOW OR AT THE MOST RECENT
ADDRESS SPECIFIED BY WRITTEN NOTICE GIVEN IN ACCORDANCE HEREWITH, OR (iii) ON
THE NEXT DAY IF SENT BY A NATIONALLY RECOGNIZED COURIER FOR NEXT DAY SERVICE AND
SO ADDRESSED AND IF THERE IS EVIDENCE OF ACCEPTANCE BY RECEIPT, OR (iv) ON THE
THIRD (3RD) DAY AFTER MAILING, IF SENT BY AN INTERNATIONALLY RECOGNIZED COURIER
FOR EXPEDITED SERVICE AND SO ADDRESSED AND IF THERE IS EVIDENCE OF ACCEPTANCE BY
RECEIPT.
IF TO WTM:
Wafer Technology (Malaysia) Sendirian Berhad
Level 28
Bangunan Bank Industri
Bandar Wawasan
No. 1016, Jalan Sultan Ismail
50250 Kuala Lumpur
Facsimile: 60 4 403 1675
Attention: President
53
<PAGE> 18
IF TO LSI:
LSI Logic Corporation
1551 McCarthy Blvd.
Milpitas, California 95035
USA
Facsimile: 408 433 6896
Attn: General Counsel
Copy to: VP Business Development
17.4 Choice Of Law. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF THE STATE OF
CALIFORNIA, U.S.A. AND APPLICABLE U.S. FEDERAL INTELLECTUAL PROPERTY LAWS. THE
PARTIES HEREBY EXCLUDE THE APPLICATION TO THIS AGREEMENT OF THE UNITED NATIONS
CONVENTION ON THE INTERNATIONAL SALE OF GOODS.
17.5 Invalidity. IN CASE ANY ONE OR MORE OF THE PROVISIONS CONTAINED IN THIS
AGREEMENT SHALL BE HELD INVALID, ILLEGAL OR UNENFORCEABLE IN ANY RESPECT, THE
VALIDITY, LEGALITY OR ENFORCEABILITY OF THE REMAINING PROVISIONS CONTAINED
HEREIN SHALL NOT IN ANY WAY BE AFFECTED OR IMPAIRED THEREBY; PROVIDED THAT, IF
ANY LIMITATION ON ANY LICENSE GRANTED TO WTM HEREIN OR ON THE USE OF ANY
INFORMATION PROVIDED TO WTM HEREIN IS HELD INVALID, ILLEGAL OR UNENFORCEABLE IN
ANY RESPECT, SUCH LICENSE OR THE PERMISSION TO USE AND RETURN SUCH INFORMATION,
AS THE CASE MAY BE, SHALL IMMEDIATELY TERMINATE. IN SUCH EVENT THE PARTIES SHALL
NEGOTIATE IN GOOD FAITH A SUBSTITUTE PROVISION THAT EFFECTS THE INTENT OF THE
PARTIES TO THE MAXIMUM EXTENT POSSIBLE.
17.6 Entire Agreement. THIS AGREEMENT AND THE EXHIBITS HERETO, WHICH ARE HEREBY
INCORPORATED BY REFERENCE, SETS FORTH THE ENTIRE UNDERSTANDING AMONG THE PARTIES
HERETO WITH RESPECT TO THE SUBJECT MATTER HEREOF AND SUPERSEDES ALL PRIOR
AGREEMENTS, ARRANGEMENTS AND COMMUNICATIONS BETWEEN THEM, WHETHER ORAL OR
WRITTEN, WITH RESPECT TO THE SUBJECT MATTER HEREOF.
17.7 Amendments. THIS AGREEMENT SHALL NOT BE MODIFIED, AMENDED OR TERMINATED
EXCEPT BY WRITTEN AGREEMENT OF THE PARTIES.
17.8 No Joint Venture or Agency. NOTHING IN THIS AGREEMENT SHALL CONSTITUTE OR
CREATE A JOINT VENTURE, PARTNERSHIP, OR ANY OTHER SIMILAR ARRANGEMENT BETWEEN
WTM AND LSI. FOR PURPOSES OF DELIVERY OF THE SERVICES, WTM HAS ENGAGED LSI AS AN
INDEPENDENT CONTRACTOR. NO PARTY IS AUTHORIZED TO ACT AS AGENT FOR THE OTHER
PARTY HEREUNDER EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT.
17.9 All Amounts in Dollars. ALL AMOUNTS PAYABLE OR SUBJECT TO DETERMINATION
UNDER THIS AGREEMENT, INCLUDING ALL INSTALLMENTS, SHALL BE PAID OR DETERMINED,
AS THE CASE MAY BE, IN DOLLARS. IN THE EVENT ANY PAYMENT OR DETERMINATION IS
INITIALLY DENOMINATED IN ANY CURRENCY OTHER THAN DOLLARS, THE APPLICABLE DOLLAR
AMOUNT SHALL BE BASED ON THE EXCHANGE RATE DETERMINED FOR THE BUSINESS DAY ON
THE DATE OF ACTUAL PAYMENT, AS REASONABLY DETERMINED BY THE PAYEE BASED ON
BUYING RATES FOR LAWFUL EXCHANGES OF DOLLARS WITH THE CURRENCY IN QUESTION AS
PUBLISHED IN THE ASIAN WALL STREET JOURNAL, OR IF IT CEASES TO PUBLISH SUCH
EXCHANGE RATES, THEN ANOTHER PAPER OF GENERAL INTERNATIONAL CIRCULATION AGREED
TO BY WTM AND LSI.
17.10 Counterparts. THIS AGREEMENT MAY BE EXECUTED ONE OR MORE COUNTERPARTS,
EACH IN THE ENGLISH LANGUAGE AND EACH OF WHICH SHALL BE DEEMED TO BE AN ORIGINAL
INSTRUMENT, AND ALL SUCH COUNTERPARTS SHALL TOGETHER CONSTITUTE THE SAME
AGREEMENT.
17.11 NO WAIVER. The failure of a Party to exercise or enforce any right
hereunder shall not be deemed to be a waiver of such right.
17.12 NO HIRING OR SOLICITATION. During the Term hereof and for a period of two
years thereafter, neither Party will solicit to hire or hire those employees of
the other Party who are involved in the performance of the obligations of the
other Party hereunder or who become known to the representatives of a Party by
virtue of the Parties' activities under this Agreement. Nothing hereby is
intended to preclude or otherwise limit the general employment recruiting and
hiring practices of a Party where such practices are unrelated to the Parties'
dealings or personnel contacts pursuant to this Agreement.
17.13 OBSERVER RIGHTS OF LSI.
(a) [REDACTED]
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<PAGE> 19
(b) [REDACTED]
(c) [REDACTED]
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
as of the date first above written.
WAFER TECHNOLOGY (MALAYSIA)
SND. BHD.
By: /s/ Cyril F. Hannon
--------------------------------
Name: Cyril F. Hannon
--------------------------------
Title: President & CEO
--------------------------------
LSI LOGIC CORPORATION
By: /s/ Joseph M. Zelayeta
--------------------------------
Name: Joseph M. Zelayeta
--------------------------------
Title: Executive Vice President
--------------------------------
55
<PAGE> 20
LIST OF EXHIBITS
Exhibit 1.1(b) - COT Cell Libraries [REDACTED]
Exhibit 1.1(w) - Qualification Standards [REDACTED]
Exhibit 1.1(bb) - Subscription Agreement (See below)
Exhibit 1.1 (hh) - Wafer Purchase Agreement (See below)
Exhibit 3.1 - Documentation of Licensed Technology [REDACTED]
Exhibit 3.2 - Technical Assistance [REDACTED]
Exhibit 3.5 - Training [REDACTED]
Exhibit 3.13 - WTM Responsibilities [REDACTED]
Exhibit 5.1 - Technology Roadmap [REDACTED]
Exhibit 5.3(a) - Draft Outline of Project Plan [REDACTED]
Exhibit 5.3(b) - Installment and Milestone Schedule [REDACTED]
Exhibit 9.5 - Written Assurances Statement [REDACTED]
56
<PAGE> 21
Dated this 8th day of September 1999
Between
WAFER TECHNOLOGY (MALAYSIA) SDN. BHD.
And
LSI LOGIC CORPORATION
And
BANK INDUSTRI MALAYSIA BERHAD,
KHAZANAH NASIONAL BERHAD
And
BI WALDEN VENTURES KEDUA SDN. BHD.
("THE FOUNDERS")
SUBSCRIPTION AGREEMENT
Messrs Sulaiman & Taye
Advocates and Solicitors
Suite 904, 9th Floor
Wisma Hangsam
I Jalan Hang Lekir
50000 Kuala Lumpur
(File Ref BI/1993/WTM/99)
SUBSCRIPTION AGREEMENT
AN AGREEMENT dated this day, month and year as set out in Part I of the FIRST
SCHEDULE hereof and made AMONG:-
(1) The company whose name and particulars are set out in Part 11 of the
First Schedule hereof (hereinafter referred to as "LSI") of the first
part;
(2) The company whose name and particulars are set out in Part III of the
First Schedule hereof (hereinafter referred to as "WTM") of the second
part; and
(3) The companies whose names and particulars are set out in Part IV of the
First Schedule hereto (hereinafter referred to as "THE FOUNDERS") of the
third part.
(Each of the Founders, WTM and LSI being referred herein individually as a
"Party" and collectively as the "Parties").
WHEREAS:-
(A) [REDACTED]
(B) The Current Shareholders are the only shareholders of WTM as at the
Agreement.
(C) WTM has as one of its main objects the business of wafer foundry and
related semi-conductor manufacturing services using advanced
manufacturing processes and its Memorandum and Articles of Association
provides for the subscription for ordinary shares.
(D) LSI has agreed to subscribe for the Ordinary Shares as hereinafter
defined upon the terms and conditions hereinafter contained.
WHEREBY IT IS AGREED as follows:-
PURPOSE AND DEFINITIONS
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<PAGE> 22
1.1 [REDACTED]
1.2 In this Agreement, where the context so permits the following terms shall
mean:-
"Appropriate Authorities" means collectively, any and all governmental,
statutory and other authorities and regulatory bodies in Malaysia (including
inter alia, the Foreign Investment Committee and the Ministry of International
Trade and Industry Malaysia) or elsewhere having jurisdiction from time to time
and at any time over the business of WTM and all matters pertaining thereto.
"Business Day" means any day other than a Saturday, a Sunday or any day on which
banks are authorised or required to be closed in San Jose, California or Kuala
Lumpur, the Federation of Malaysia, or a day which is an official public holiday
in the United States of America or in the Federation of Malaysia.
"Companies Act" means the Companies Act, 1965 of Malaysia including any
statutory modification or re-enactment thereof or any statutory instrument,
order or regulation made thereunder or under such re-enactment.
"Current Shareholders" means all the shareholders of WTM registered in the books
of WTM and whose names and particulars are set out in the SECOND SCHEDULE
hereto.
"Effective Date" shall have the same meaning as in the Technology Transfer
Agreement.
"Fair Market Value" [REDACTED]
"Founders" shall mean Bank Industri Malaysia Berhad, Khazanah Nasional Berhad
and BI Walden Ventures Kedua Sdn. Bhd. and their respective successors-in-title
and permitted assigns, as the case may be and whose particulars are set out in
Part IV of the First Schedule hereto.
"Founders' Agreement" shall mean the agreement dated the 14th day of May 1999
and entered into by the Founders and in this Agreement the purpose intent and
effect thereof shall be restricted specifically for the purposes of reference
only without the onus upon the Founders to perform any obligation thereunder for
the benefit of LSI.
"Issue Price" [REDACTED]
"LSI Shares" means the Ordinary Shares to be issued by WTM arising from the
exercise of the subscription by LSI from the Total Equity Amount as hereinbefore
defined.
"M & A" means the Memorandum and Articles of Association of WTM for the time
being in force, a copy of which is annexed hereto as "ANNEXURE A".
"Material Adverse Change" [REDACTED]
"Ordinary Shares" means the ordinary shares of WTM.
"RM" and "Ringgit Malaysia" means the lawful currency of Malaysia.
"Shareholders" means the shareholders of WTM.
"Technology Transfer Agreement" means the Technology Transfer Agreement dated as
of the date hereof between WTM and LSI.
1.3 (a) The headings in this Agreement are inserted for convenience only and
shall be ignored in construing this Agreement.
(b) In this Agreement reference to any Clause is to the clause so specified in
this Agreement.
(c) Words importing the singular include the plural and vice versa and words
denoting the masculine gender shall include the feminine and neuter genders and
vice versa.
(d) All references to a company shall include a corporation or other corporate
entity and its successors-in-title and assigns.
(e) Capitalised terms that are not defined herein shall have the meanings set
forth in the Technology Transfer Agreement, if defined therein.
2. CONDITIONS PRECEDENT
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<PAGE> 23
2.1 This Agreement is subject to and conditional upon the fulfillment of the
Conditions Precedent as defined in the Technology Transfer Agreement and shall
become effective on the Effective Date.
3. SUBSCRIPTION OF THE LSI SHARES
3.1 Issuance
(a) Upon the fulfillment of the Conditions Precedent in SUB-CLAUSE 2.1
hereinabove and subject to satisfaction by LSI of the appropriate milestones
under the Technology Transfer Agreement and subject to the terms and conditions
of this Agreement, WTM shall allot and issue, and the Founders shall procure
such allotment and issue to LSI, Ordinary Shares of WTM in the amounts and at
the times set forth herein.
(b) [REDACTED]
(c) [REDACTED]
(d) [REDACTED]
(e) [REDACTED]
(f) [REDACTED]
4. COMPLETION OF ALLOTMENT AND ISSUE OF LSI SHARES
4.1 [REDACTED]
4.2 The allotment of the LSI Shares shall be subject to the Founders procuring
that the provisions of the M & A shall be complied with at all times in respect
of such allotment of the LSI Shares.
4.3 (i) The Parties hereby further agree that each issuance of the LSI Shares
shall take place at the registered office of WTM as soon as possible and in any
event within thirty (30) days after the LSI Share Milestone Satisfaction Date,
or at such other time and place as WTM and LSI mutually agree upon in writing
(each such time and place, a "Closing").
(ii) At each Closing, WTM shall procure the registration of LSI as the holder of
the LSI Shares and shall deliver to LSI the relevant share certificate(s) in a
form acceptable to LSI in such denomination(s) as LSI may require representing
the LSI Shares for the applicable LSI Share Milestone Payment, as determined
pursuant to SUB-CLAUSE 3.1(b).
(iii) At each Closing, WTM and the Founders shall each deliver to LSI a
certificate, signed by an authorised officer or director, that the
representations and warranties set forth in SUB-CLAUSES 5.1 and 5.2, as
appropriate, are true and
59
<PAGE> 24
correct as of such Closing. In addition, at each Closing, WTM shall deliver to
LSI a certificate, signed by an authorised officer or director of WTM to the
best of his knowledge and belief, which is to the effect set out in SUB-CLAUSE
4.4 (i) and (ii) below.
4.4 WTM and the Founders shall, save as disclosed herein, procure that
immediately prior to each Closing:-
(i) the representations and warranties of WTM and the Founders contained in this
Agreement are true and correct in all material respects and that WTM and the
Founders have complied with all covenants, undertakings, agreements and
conditions contained in this Agreement required to be performed or complied with
on their parts; and
(ii) there has been no material adverse change in the financial position of WTM
from that existing at the date of this Agreement nor any breach by WTM and the
Founders of any of their obligations hereunder.
4.5 WTM and the Founders undertake that all LSI Shares shall be issued free of
all liens and encumbrances and shall rank pari passu in all respects with the
existing issued Ordinary Shares and that the Founders hereby waive their
pre-emptive rights in respect of the allotment and issue of the LSI Shares.
4.6 WTM and the Founders undertake to procure the amendment of the M & A in
order to provide for the allotment and issuance of the LSI Shares (if required),
including an increase in the authorised share capital from the present amount to
such other amount as reasonably shall be considered appropriate. Further, WTM
and the Founders shall not cause or allow any amendment to the M & A or to the
Founders' Agreement which might create, generate, constitute, cause or procure
any conflict with this Agreement.
4.7 WTM and the Founders undertake to do all other things and sign or execute
such documents as may be required of each of them in order to complete the
allotment, issuance and registration of the LSI Shares.
4.8 WTM and the Founders and to the extent as each of them shall lawfully be
empowered so to do, undertake to comply with or procure WTM's directors to
comply with the requirements of the Registrar of Companies of Malaysia and of
the Appropriate Authorities in connection with the allotment, issuance and
registration of the LSI Shares.
5. REPRESENTATIONS AND WARRANTIES
5.1 Save as disclosed herein, WTM and the Founders to the best of their
respective knowledge and belief, represent and warrant to LSI prior to each
Closing as follows:-
(a) WTM is a company duly incorporated under the laws of its place of
incorporation with full power and authority to conduct its business in each
jurisdiction where it carries on business and is not in liquidation and no steps
have been taken by any person for or with a view to dissolve WTM or to the
appointment of a liquidator, receiver and/or manager or judicial manager of WTM
or any of their assets or undertakings;
(b) [REDACTED]
(c) that upon the compliance of the provisions referred to in SUB-CLAUSE 4.2,
the LSI Shares are validly authorised but unissued ordinary shares which WTM has
full authority to allot and issue under this Agreement and the Founders shall
procure that the Current Shareholders have waived their pre-emptive rights to
the LSI Shares, and when allotted and issued under this Agreement, will be
validly issued and fully paid and non-assessable Ordinary Shares;
(d) no material outstanding indebtedness or liability of WTM, no material
outstanding indebtedness or liability of such shareholder which are material in
the context of the allotment and issue of the LSI Shares, has become payable by
reason of default by any of them or which with the lapse of time or the
fulfillment of any condition or the giving of notice may result in any such
indebtedness becoming so payable, (and for the purposes of this SUB-CLAUSE
5.1(d), the words "material outstanding indebtedness or liability" shall have
the same meaning as "material adverse change" as hereinbefore defined);
(e) none of the execution, delivery and performance by them of this Agreement,
the compliance with the terms and provisions hereof and the carrying out of the
transactions contemplated hereby, conflicts or will conflict with or will result
in any breach or violation of any of the terms, conditions or provisions of any
law, governmental rule or regulation or their memorandum and articles of
association, as amended, or any order, writ, injunction, judgment or decree of
any court or governmental authority against them or by which they or of any of
their or WTM's properties is bound, or any loan agreement, debenture, mortgage,
note, resolution, bond or contract or other agreement or instrument to which
they are a Party or by which they or any of their or WTM's properties is bound
or constitutes or will constitute default thereunder or will result in the
imposition of any lien upon any of their or WTM's properties;
60
<PAGE> 25
(f) there is no conflict between this Agreement, the M & A and the Founders'
Agreement and that WTM and the Founders undertake to forthwith resolve amongst
themselves any conflict which may arise, in favour of this Agreement in the
event of such conflict; and
(g) if it shall come to their knowledge, individually or collectively, prior to
each Closing, that any of the representations and warranties are untrue or of
any other matter or thing which is or may be a breach of or inconsistent with
any of the representations and warranties herein set out, WTM, or the Founders,
as the case may be, shall give fourteen (14) Business Days' prior written notice
to LSI of the same and shall notify LSI of the steps which are being taken to
remedy or rectify the same.
5.2 Save as disclosed herein, WTM to the best of its knowledge and belief,
represents and warrants to the Founders and LSI prior to each Closing as
follows:-
(a) WTM is a private company duly registered and validly existing and in good
standing under the laws of Malaysia and all information supplied or to be
supplied to LSI for the purpose of or in connection with the offering of the LSI
Shares including but not limited to any information supplied or to be supplied
in connection with the application for the LSI Shares is or will be true and
accurate in all material respects and nothing has been supplied or omitted from
such information which would or might make any of the information materially
misleading or which would or might be expected to materially affect the
willingness of LSI to subscribe, all forecasts, expressions of opinion,
intention and expectation which have been disclosed in connection with the
allotment and issue of the LSI Shares are or will be fairly and honestly held
and have been made or will be made after due and careful enquiries and
consideration and represent or will represent reasonable expectations based on
facts known to WTM as at the date of such disclosure;
(b) there is no litigation, investigation or arbitration or prosecution
proceeding, actual or pending or threatened which relates to WTM and which is
material in the context of the allotment and issue of the LSI Shares and there
are no circumstances known to WTM which might give rise to any such litigation,
investigation, arbitration or prosecution;
(c) the last financial year end of the audited accounts of WTM which has been
made available to LSI present a true and fair view of the financial position and
state of affairs of WTM and make full provision for or disclose all known
liabilities whether actual or contingent of WTM, and of capital commitments, as
at such date and fully comply with the requirements of all relevant law and
accounting principles and practice then in force and since the date of the
latest published audited accounts of WTM there has been no material adverse
change in the financial position, condition and general affairs of WTM;
(d) all taxes (whether income tax, property tax or otherwise) of WTM or all
taxes which are material in the context of the allotment and issue of the LSI
Shares, for which they or any of them are liable or which ought to have been
paid, have been duly paid or adequately provided for; all the returns notice or
information which are made or given or ought to have been made or given by them
for taxation are up to date, correct and on a proper basis, and are not subject
to any dispute with any relevant Appropriate Authorities and there are no
present circumstance (of which WTM is or ought reasonably to be aware) which are
likely to give rise to any such dispute;
(e) the statutory books and books of account of WTM are maintained in accordance
with all legal requirements applicable thereto and contain true, full and
accurate records (in all material respects) of all matters required to be dealt
with therein and all such books and documents (including documents of title)
which are its property are in its possession or under its control and all
accounts, documents and returns required to be delivered or made to the
Registrar of Companies having been correctly delivered or made in all material
respects;
(f) each of the assets of WTM which is of an insurable nature has at all
material times been and is at the date thereof adequately insured against fire
and other risks normally insured against by any company carrying on similar
businesses or owning property of a similar nature. In respect of such
insurances, all premiums have been duly paid to date and to the best of the
knowledge and belief of WTM all the policies are in force and enforceable;
(g) WTM is not in violation of any applicable law promulgated or judgment
entered by any governmental authority, which violation, individual or in the
aggregate would materially adversely affect the performance of its obligations
under this Agreement;
(h) WTM will give timely notice to LSI and the Founders of all decisions made
between the shareholders of WTM which may affect the corporate governance or
which may materially adversely affect the operation and financial performance of
WTM; and
(i) WTM will give timely notice to LSI of any amendment or alteration to the
Founders' Agreement and the M & A, as well as any disputes between or among the
shareholders of WTM of which WTM is aware, including but not limited to disputes
arising under the Founders' Agreement.
5.3 LSI represents and warrants to WTM and the Founders as at the date of this
Agreement and prior to each Closing as follows:-
5.3.1 Corporate Standing, Etc.
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<PAGE> 26
It is a company duly registered and validly existing and in good standing under
the laws of its jurisdiction of incorporation, and is qualified to do business
in all other jurisdictions in which the nature of the business conducted by it
makes such qualification necessary and where failure so to qualify would have a
materially adverse effect on its financial condition, operations, prospects or
business.
5.3.2 Authority, Etc.
It has all necessary power and authority to execute, deliver and perform this
Agreement and its obligations hereunder. The execution, delivery and performance
of this Agreement has been duly authorised by all necessary corporate action on
its part; it has duly and validly executed and delivered this Agreement and that
this Agreement constitutes a legal, valid and binding obligation of such Party
which is enforceable against such Party in accordance with the terms hereof,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
re-organization or moratorium or other similar laws relating to the enforcement
of creditors' rights generally and by general equitable principles.
5.3.3 No Violation of Law; Litigation
It is not in violation of any applicable law promulgated or judgment entered by
any governmental authority, which violation, individually or in the aggregate,
would materially and adversely affect the performance of its obligations under
this Agreement. There are no legal or arbitration proceedings or any proceedings
by or before any governmental or regulatory authority or agency now pending or
(to the best of its knowledge) threatened against it which, if adversely
determined, could have a materially adverse effect upon its financial condition,
operations, prospects or business as a whole, or its ability to perform its
obligations under this Agreement.
5.3.4 No Conflict or Breach
None of the execution, delivery and performance by it of this Agreement, the
compliance with the terms and provisions hereof and the carrying out of the
transactions contemplated hereby, conflicts or will conflict with or will result
in a breach or violation of any of the terms, conditions or provisions of any
law, governmental rule or regulation or its Certificate of Incorporation, as
amended, or any order, writ, injunction, judgement or decree of any court or
governmental authority against it or by which it or any of its properties is
bound, or any loan agreement, debenture, mortgage, note, resolution, bond, or
contract or other agreement or instrument to which it is a Party or by which it
or any of its properties is bound, or constitutes or will constitute a default
thereunder or will result in the imposition of any lien upon any of its
properties.
5.3.5 Purchase Entirely for Own Account
This Agreement is made with LSI in reliance upon LSI's representation to WTM and
the Founders, which by LSI's execution of this Agreement, LSI hereby confirms,
that the LSI Shares to be acquired by LSI will be acquired for investment for
LSI's own account, not as a nominee or agent, and not with a view to the resale
or distribution of any part thereof, and that LSI has no present intention of
selling, granting any participation in, or otherwise distributing the same all
except as permitted by SUB-CLAUSE 6.7(c)(ca)(iii). By executing this Agreement,
LSI further represents that LSI does not presently have any contract,
undertaking, agreement or arrangement with any person to sell, transfer or grant
participations to such person or to any third person, with respect to any of the
LSI Shares.
5.3.6 Disclosure of Information
LSI has had an opportunity to discuss WTM's business, management, financial
affairs and the terms and conditions of the allotment and issue of the LSI
Shares with WTM's management and has had an opportunity to review WTM's
facilities. LSI understands that such discussions, as well as any other written
information delivered by WTM to LSI, were intended to describe the aspects of
WTM's business which it believes to be material; provided, however, such
discussions and information shall in no way mitigate or dilute any of WTM's or
the Founders' representations and warranties, liability, obligations and
performance of their duties and undertakings under this Agreement.
5.3.7 No Public Market
LSI understands that currently neither the Ordinary Shares nor any of WTM's
other securities are listed on any stock exchange.
5.3.8 Conduct of WTM's Business
WTM has advised LSI that WTM will conduct its business operations in accordance
with the laws, rules, regulations directives and orders issued by the
Appropriate Authorities.
5.4 Each of the Founders represent and warrant to LSI and WTM that as at the
date hereof as follows:-
5.4.1 Corporate Standing, Etc.
It is a company duly registered and validly existing and in good standing under
the laws of its jurisdiction of incorporation, and is qualified to do business
in all other jurisdictions in which the nature of the business conducted
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by it makes such qualification necessary and where failure so to qualify would
have a materially adverse effect on its financial condition, operations,
prospects or business.
5.4.2 Authority, Etc.
It has all necessary power and authority to execute, deliver and perform this
Agreement and its obligations hereunder. The execution, delivery and performance
of this Agreement has been duly authorised by all necessary corporate action on
its part; it has duly and validly executed and delivered this Agreement and that
this Agreement constitutes a legal, valid and binding obligation of such Party
which is enforceable against such Party in accordance with the terms hereof,
except as the enforceability thereof may be limited by bankruptcy, insolvency,
re-organization or moratorium or other similar laws relating to the enforcement
of creditors' rights generally and by general equitable principles.
5.4.3 No Violation of Law, Litigation
It is not in violation of any applicable law promulgated or judgement entered by
any governmental authority, which violation, individually or in the aggregate,
would materially and adversely affect the performance of its obligations under
this Agreement. There are no legal or arbitration proceedings or any proceedings
by or before any governmental or regulatory authority or agency now pending or
(to the best of its knowledge) threatened against it which, if adversely
determined, could have a materially adverse effect upon its financial condition,
operations, prospects or business as a whole, or its ability to perform its
obligations under this Agreement.
5.4.4 No Conflict or Breach
None of the execution, delivery and performance by it of this Agreement, the
compliance with the terms and provisions hereof and the carrying out of the
transactions contemplated hereby, conflicts or will conflict with or will result
in a breach or violation of any of the terms, conditions or provisions of any
law, governmental rule or regulation or its M & A, as amended, or any order,
writ, injunction, judgement or decree of any court or governmental authority
against it or by which it or any of its properties is bound, or any loan
agreement, debenture, mortgage, note, resolution, bond, or contract or other
agreement or instrument to which it is a Party or by which it or any of its
properties is bound, or constitutes or will constitute a default thereunder or
will result in the imposition of any lien upon any of its properties.
6. COVENANTS
6.1 Representations
The representations and warranties of a Party to each of the other Parties
contained in CLAUSE 5 shall be true and correct at the material times.
6.2 Fifteen per centum (15%) Limit
[REDACTED]
6.3 Authorised Capital
In amplification of SUB-CLAUSE 4.2 hereinabove, WTM and each of the Founders
agree to take all actions necessary to amend the M & A so that the authorised
capital is sufficient at all times necessary in order for WTM to be legally able
to allot and issue the LSI Shares to LSI under the terms of this Agreement.
6.4 Dividends
[REDACTED]
6.5 Delivery of Financial Statements
(a) [REDACTED]
(b) [REDACTED]
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6.6 Board of Directors
[REDACTED]
6.7 Dealings With Shares
(a) Disposal Or Charging Of The Shares
LSI and the Founders, who shall similarly require of the other shareholders of
WTM, shall not, except with the prior written consent of the other shareholders
of WTM, create or permit to subsist any pledge, lien or charge over, or grant
any option or other rights over or dispose of any interest in, any of the
Ordinary Shares held by it (otherwise than by a transfer in accordance with the
provisions of the M & A).
(b) Issuance of Shares
The issuance of new Ordinary Shares shall be regulated in accordance with the
provisions in the M & A as may be amended for the purposes of this Agreement.
(c) Pre-Emption and Transfer Of Ordinary Shares
LSI agrees to hold and own its Ordinary Shares subject always to the
restrictions of Malaysian Law and the M & A as may be amended for the purposes
of this Agreement. Subject to the foregoing, LSI also agrees as follows:-
(i) That the sale, transfer or disposal of the legal or beneficial ownership of
any of the Ordinary Shares shall be in accordance with the provisions of the M &
A as may be amended for the purposes of this Agreement and this Clause.
(ii) In the event of any issuance of Ordinary Shares, or any other equity
interests in WTM, being made by way of rights or otherwise, such Ordinary Shares
or other interests shall be first offered to all shareholders in proportion to
their respective shareholdings and, in the case of any shareholder failing to
take up all or any of its portion of the new Ordinary Shares or other interests,
such Ordinary Shares or other interests as are not taken up shall be offered to
the other shareholders in proportion to their respective shareholdings at the
relevant time.
(iii) A shareholder being a body corporate shall be entitled, subject to the
receipt of the relevant approval(s) of the Appropriate Authorities, to transfer
its shares in WTM to its subsidiary or related corporation within the meaning of
the Companies Act, PROVIDED THAT such transfer shall be null and void unless
such transferee agrees in writing to be bound by the terms of this Agreement.
(iv) Subject to the provisions of SUB-CLAUSE 6.7 (c)(ca)(iii) herein, none of
the shareholders shall sell, transfer, pledge or otherwise part with the legal
or beneficial ownership of any shares in WTM without first making an offer in
writing to sell the same to the other shareholders. Every such offer shall
remain open for acceptance for a period of thirty (30) days from the date of the
offer and shall state the number of shares offered for sale, the price therefor
fixed by the offeror and any other terms and conditions material to the offer.
(v) If a shareholder shall be desirous of purchasing the shares offered but
shall not agree to the price fixed by the offeror and PROVIDED THAT it shall
have notified the offeror of such desire prior to the expiry of the period of
thirty (30) days fixed for acceptance of the offer, then the sale price for such
shares shall be its Fair Market Value. If the offeror finds the Fair Market
Value unacceptable, it shall be entitled to revoke its offer by notice in
writing served on the shareholder within fourteen (14) days of the
certification. PROVIDED THAT the offeror shall not have served notice of
revocation as aforesaid, the shareholder to whom the offer was made shall be
entitled to accept the offer at the certified price on or before the expiry of a
period of fourteen (14) days from the date of the aforesaid certification.
(vi) Until all the shares offered shall have been rejected whether expressly or
by the expiry of time by the shareholder, shares remaining unsold (hereinafter
referred to as "the Unsold Shares") subsequent to an offer shall be offered to
the shareholders who have accepted in full the preceding offer made to them, and
the shareholders shall be entitled to purchase the Unsold Shares in the
proportions which the shares held by them prior to the initial offer bore to
each other. The Unsold Shares shall be offered upon terms of acceptance on or
before the expiry of a period of thirty (30) days from the date of the
subsequent offer and payment for such shares at the same price or certified
value as that accepted for the preceding offer.
(vii) The sale and purchase of shares offered and accepted shall be completed at
the registered office of WTM upon the expiry of forty-five (45) days from the
date of the offer which has been accepted, whereupon the
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offeror shall deliver to the shareholder, who has accepted such other offer,
duly executed transfers of the shares accepted together with the relevant share
certificate(s) and such shareholder shall pay the consideration therefor in
full.
(viii)A shareholder shall be at liberty at any time within a period of sixty
(60) days from the last offer made to the shareholders to sell or otherwise
dispose of any shares remaining unaccepted by the shareholders to any
individual, firm or company capable of acquiring such shares under Malaysian Law
at a price which equals or exceeds the price offered to the shareholders or the
certified value of the shares if the same have been valued, PROVIDED THAT prior
to the completion of the sale and purchase such individual, firm or company
shall deliver to WTM a written undertaking that it agrees to be bound by all the
terms and conditions herein as if it were a Party including the provisions of
this Clause and subject always to the written consent to the other shareholders
being obtained, which consent shall not be unreasonably withheld.
(ix) A shareholder may make a new offer to sell in accordance with this Clause
any shares remaining unsold pursuant to this Clause.
6.8 Founders' Agreement
LSI shall not be required to sign or become a party to the Founders' Agreement
and shall not be subject to the terms of the Founders' Agreement. LSI
acknowledges that LSI will, however, like all shareholders of WTM, be subject to
the terms of the M & A, including any amendments required by the Founders'
Agreement, provided that such terms are adopted pursuant to Malaysian Law and do
not conflict with the terms of this Agreement.
6.9 The Founders and WTM shall procure that WTM will give timely notice to LSI
of:-
(i) all decisions made between or among the Founders which may affect the
corporate governance of WTM or which may materially affect the operation and
financial performance of WTM;
(ii) any amendment or alteration to the Founders' Agreement or the M & A, as
well as any disputes between or among the Founders and WTM, including but not
limited to disputes arising under the Founders' Agreement; and
(iii) any material adverse change in the financial condition of WTM.
7. PARTICIPATION IN INITIAL PUBLIC OFFERING/PUBLIC LISTING OF WTM
7.1 Subject to the prior approvals of the relevant authorities and taking into
consideration the best possible opportunities to raise capital for WTM, WTM and
the other Parties hereto agree, covenant and undertake to take all such steps
and do all such things necessary to procure the conversion of WTM to a public
company and the listing and quotation of the issued and paid-up capital of WTM
on any stock exchange in Malaysia or any country mutually agreed upon in writing
by the Parties.
7.2 [REDACTED]
7.3 Pursuant to SUB-CLAUSE 7.2 hereinabove, it shall be incumbent upon any
shareholder intending to dispose of its Ordinary Shares in WTM to provide to
WTM, all such relevant information regarding itself, the Ordinary Shares held by
it, and the intended method of disposal of such Ordinary Shares as shall be
required to effect the registration thereof.
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7.4 [REDACTED]
7.5 [REDACTED]
8. TERM AND TERMINATION, DEFAULTS AND REMEDIES
8.1 Term
This Agreement shall begin on the Effective Date and, unless modified earlier
pursuant to SUB-CLAUSE 8.4 or terminated, shall continue in full force and
effect until such time as the LSI Shares shall have been fully allotted and
issued to LSI as required by this Agreement (hereinafter referred to as the
"TERM").
8.2 Early Termination
Notwithstanding SUB-CLAUSE 8.1, this Agreement may be terminated prior to the
expiration of the Term as follows:-
8.2.1 by written agreement of the Parties; or
8.2.2 upon written notice given by the Non-Defaulting Party upon the occurrence
of an Event of Default.
8.3 Effect of Termination Or Expiration
Upon the termination or expiration of this Agreement for whatever cause, whether
due to the expiration of the Term in accordance with SUB-CLAUSE 8.1 or to the
early termination of this Agreement pursuant to SUB-CLAUSE 8.2:-
8.3.1 the parties shall have no further duties, obligations or liabilities
towards each other under this Agreement, except as otherwise set forth in this
CLAUSE 8;
8.3.2 any duties, obligations or liabilities that have accrued prior to the
effective date of such termination or expiration, including with respect to
damages or harm suffered by the Non-Defaulting Party prior or after such
termination or expiration shall survive the termination or expiration of this
Agreement; and
8.3.3 the duties, obligations or liabilities under the following provisions
shall survive the termination or expiration of this Agreement namely: CLAUSE 1,
SUBCLAUSES 6.4 to 6.9 inclusive and CLAUSES 7 to 29 inclusive.
8.4 Deemed Modification for Public Company
In the event WTM is converted into a public company under the Companies Act:-
8.4.1 SUB-CLAUSES 6.5 TO 6.7 inclusive shall be deemed to have been deleted from
this Agreement and if required by any relevant amendment, act or enactment
pursuant to Malaysian Law, SUB-CLAUSES 6.4, 6.8 AND 6.9 shall also be deemed to
have been deleted, with the exception of the fights thereunder that had
previously accrued but not as of such time been satisfied, the provisions of
such sub-clauses at such time shall no longer be of any force or effect and
8.4.2 notwithstanding the other provisions in this Agreement, it is hereby
agreed by the parties hereto that the Clauses of this Agreement which would
infringe or offend the provisions of the Malaysian Code on Take-Overs and
Mergers 1998 or any amendment or re-enactment thereof shall also no longer be of
any force or effect and to this end, the parties shall seek their respective
legal advice and agree among themselves as to the provisions which shall have no
force and effect, forthwith upon the conversion of WTM into a public company.
8.5 Event of Default
8.5.1 [REDACTED]
8.5.2 [REDACTED]
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8.5.3 [REDACTED]
8.6 Remedies for Event of Default
Upon the occurrence and during the continuation of any Event of Default
hereunder, the Non-Defaulting Party shall have the right to:-
8.6.1 terminate this Agreement pursuant to SUB-SUB-CLAUSE 8.2.2;
8.6.2 subject to the limitations imposed by CLAUSE 22 (FORCE MAJEURE), pursue
any other remedy given under this Agreement or at law or in equity or otherwise.
The rights given by this SUB-CLAUSE 8.6 shall not prejudice any other right or
remedy of the other Non-Defaulting Parties in respect of the default concern
(if any) or any other default, whether of this Agreement or of either of the
Technology Transfer Agreement or the Wafer Purchase Agreement (herein referred
to as the "RELATED AGREEMENTS").
8.7 Effect on Related Agreements
Upon termination or modification of this Agreement for any reason, each of the
Related Agreements shall, except to the extent otherwise specified therein,
continue to be in full force and effect, notwithstanding the termination or
modification of this Agreement.
9. EMPLOYEES' SHARE OPTION SCHEME
The Parties hereto propose to introduce an employees' share option scheme
(hereinafter referred to as the "ESOS") with a view to giving to the
employees/senior executives of WTM on whom the success of WTM will inter alia
depend, a direct interest in the growth of WTM and in the hope of ensuring the
continuation of such growth. Under the ESOS, the employees/senior executives of
WTM, including directors of WTM, who are full time executives as well as long
serving employees of WTM will be granted an option to subscribe for ordinary
shares in WTM at such price as shall be determined by the Board of Directors of
WTM subject to the limitation that at no time shall the amount of Ordinary
Shares issued and issuable (on a Fully Diluted Basis as determined pursuant to
Malaysian GAAP) pursuant to the ESOS exceed [REDACTED]or such other reasonable
quantum (in percentage terms) of all issued Ordinary Shares as the Board of
Directors of WTM shall deem appropriate. The Parties hereto envisage that the
ESOS will come into effect within five (5) years from the date of this
Agreement. In the event of the implementation of the ESOS, each Party shall
reduce their shareholding in WTM on a proportionate basis subject always to
[REDACTED]or such other reasonable quantum (in percentage terms) of all issued
Ordinary Shares as the Board of Directors of WTM shall deem appropriate ESOS
share limitation as hereinabove mentioned. The terms and conditions of the ESOS
shall be decided by the Board of Directors of WTM in due course.
10. CONFLICT WITH MEMORANDUM AND ARTICLES OF ASSOCIATION
10.1 In the event of any conflict between the provisions of the M & A and the
provisions of this Agreement, the provisions of this Agreement shall prevail as
between the Parties inter se.
10.2 It is intended that the M & A shall at all times during the existence of
this Agreement contain all such provisions as are necessary, permissible or
desirable under the applicable laws to give full effect to the specific
agreement of the Parties hereto PROVIDED ALWAYS THAT such amendments shall be in
compliance with the existing regulations of the Companies Act for the time being
in force.
10.3 In the event that any amendment to the M & A is required by the Registrar
of Companies or any regulatory authority in Malaysia, the Founders shall make
such amendment thereto as shall be acceptable to the Registrar of Companies or
such regulatory authority without in any way altering the purpose or intention
of such amendment or failing which the Parties shall take such other steps and
do such other things as may be necessary including the execution of any other
agreement or agreements to preserve the intent and purpose of this Agreement.
11. EXCHANGE CONTROL AND TAX
11.1 The Parties hereto will use all reasonable commercial endeavors to procure
all exchange control consents necessary for the implementation of this Agreement
or the transaction contemplated hereunder and if in any case a necessary consent
is not obtained then the obligation under this Agreement not thereby permitted
to be performed shall not be extinguished but shall
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be suspended until such time as performance is permissible. Should it be
permissible in respect of any obligation to make any payment to perform that
obligation in a currency other than that in respect of which the obligation
exists (but is not permitted to be performed) then, if the Party entitled to
payment so elects, payment shall be effected by payment of the equivalent amount
(at the then prevailing rates of exchange) of such other currency as is
permissible and is selected by the Party entitled to payment.
11.2 All payments by any Party pursuant to this Agreement are exclusive of any
applicable value added tax or service tax and if any such value added tax or
service tax is payable, the Party in question shall be additionally liable for
such tax.
11.3 Each and every shareholder shall be responsible for its own income tax
liability and obligations.
12. DISPUTE SOLUTION
12.1 The Parties shall use all reasonable efforts to settle disputes arising
under this Agreement by mutual agreement.
12.2 Where a disputed matter arises under or relates to this Agreement but not
the Technology Transfer Agreement (a "Covered Dispute"), this CLAUSE 12 and
CLAUSE 14 herein shall apply. The Parties acknowledge that any dispute relating
to the satisfaction of milestones or LSI's right to receive Ordinary Shares as
consideration under the Technology Transfer Agreement relates to the Technology
Transfer Agreement. Should any disputed matter relating to this Agreement also
relate to the Technology Transfer Agreement, the dispute resolution provisions
set forth in the Technology Transfer Agreement shall apply; provided, however,
issues dealing with the corporate governance of WTM shall be resolved pursuant
to Malaysian law.
12.3 In the event any dispute to be resolved hereunder is not settled by mutual
agreement, a Party which believes a dispute exists shall provide a written
notice of the dispute (the "Dispute Notice") to the senior management
representatives of the other Party seek resolution of the dispute by mutually
agreed upon meeting or teleconference(s) of such representatives. The initial
senior management representatives designated by the Parties (and who may be
replaced by the respective appointing Party) to resolve disputes pursuant to
this CLAUSE 12 are:- WTM Representative: [REDACTED] LSI Representative:
[REDACTED]
12.4 If the dispute to be resolved hereunder is not resolved within thirty (30)
days following receipt by the receiving Party of the Dispute Notice (the
"Internal Disputes Resolution Period"), either Party may commence legal
proceedings in a court in Malaysia unless the Parties agree to arbitration in
accordance with CLAUSE 13 hereunder.
13. ARBITRATION
13.1 Arbitration If any Covered Dispute between the Parties is not resolved
pursuant to CLAUSE 12, prior to the expiration of the Internal Disputes
Resolution Period and the Parties agree in writing to arbitrate such dispute,
the Parties shall submit such dispute to binding arbitration conducted pursuant
to the following procedure:-
13.2 The Party seeking arbitration hereunder shall request such arbitration in
writing, which writing shall include a clear statement of the matter(s) in
dispute, shall name one arbitrator appointed by such Party, and shall be
delivered to the other Party. Within twenty (20) Business Days after receipt of
such request, the other Party shall appoint one arbitrator, or in default
thereof, such arbitrator shall be named as soon as practicable in accordance
with the United Nations Commission on International Trade Law (UNCITRAL)
Arbitration Rules (the "Arbitration Rules"). The two arbitrators appointed by
the Parties shall appoint a third arbitrator within ten (10) Business Days after
the appointment of the second arbitrator, or failing such agreement on a third
arbitrator by the two arbitrators so appointed, a third arbitrator shall be
appointed in accordance with the Arbitration Rules.
13.3 The arbitration hearing shall be held at the Regional Centre for the
arbitration in Kuala Lumpur, Malaysia, on at least twenty (20) Business Days'
prior written notice to the Parties, and shall be conducted in the English
language. Except as otherwise provided herein, the proceedings shall be
conducted in accordance with the Arbitration Rules; provided, that the governing
law shall be as specified in CLAUSE 14. Any decision of the arbitrators,
including a decision regarding an allocation of costs consistent with this
Clause, shall be joined in by at least two of the arbitrators and shall be set
forth in a written award which shall state the basis of the award and shall
include both findings of fact and conclusions of law. The arbitrators shall not
have the power to award punitive damages or costs or damages for attorneys' or
consultants' fees. An award rendered pursuant to the foregoing, shall be final
and binding on the Parties, and judgment hereon may be entered or enforcement
thereof sought by any Party in any court of competent jurisdiction.
13.4 Unless otherwise set forth in the award of the arbitrators, each Party
shall bear the costs of its appointed arbitrator and its own attorneys' and
consultants' fees, and the costs of the third arbitrator shall be shared equally
by the Parties. Additional
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incidental costs of arbitration shall be paid for by the non-prevailing Party in
the arbitration; provided, that where the final decision of the arbitrators is
not clearly in favour of either Party, such incidental costs shall be shared
equally by the Parties.
13.5 Pendengy of Dispute
THE EXISTENCE OF ANY DISPUTE OR CONTROVERSY UNDER THIS AGREEMENT OR THE PENDENCY
OF THE DISPUTE SETTLEMENT OR RESOLUTION PROCEDURES SET FORTH ABOVE SHALL NOT IN
AND OF THEMSELVES RELIEVE OR EXCUSE ANY PARTY HERETO FROM ITS ONGOING DUTIES AND
OBLIGATIONS UNDER THIS AGREEMENT OR UNDER ANY OTHER AGREEMENT BETWEEN THE
PARTIES.
14. GOVERNING LAW AND JURISDICTION
14.1 This Agreement shall be governed by, and construed in accordance with, the
laws of Malaysia.
14.2 In relation to any legal action or proceedings arising out of or to resolve
a Covered Dispute ("Proceedings"), the Parties irrevocably submit to the
jurisdiction of the High Court of Malaya.
15. NOTICES AND DELIVERIES
15.1 Any written notice or communication to a Party required or permitted under
this Agreement, and the delivery of any other material pursuant to this
Agreement, shall be deemed to have been duly given and received:-
(a) on the date of service or delivery, if served or delivered
personally or sent by facsimile transmission (and confirmed as
transmitted by a transmission slip) to the Party to whom notice
or the delivery is to be given; or
(b) on the tenth (10th) day after mailing, if mailed by first class
registered or certified mail if mailed nationally or by
registered airmail if mailed internationally, postage prepaid,
and addressed to the Party to whom notice is to be given at the
address set forth below or at the most recent address specified
by written notice given in accordance herewith; or
(c) on the next day if sent by a nationally recognized courier for
next day service and so addressed and if there is evidence of
acceptance by receipt; or
(d) on the third (3rd) day after mailing, if sent by an
internationally recognized courier for expedited service and so
addressed and if there is evidence of acceptance by receipt.
If to WTM:-
Wafer Technology (Malaysia) Sdn. Bhd.
(Business Address)
Suite 1.10, First Floor,
KHTP Business Centre,
Kulim Hi-Tech Park,
09000 Kulim,
Kedah Darul Aman
Facsimile No: 604-403 1699
Attention: President/CEO
If to LSI:-
LSI Logic Corporation
1551 McCarthy Blvd.
Milpitas, California 95035
USA
Facsimile No: 408 433 6896
Attention: General Counsel
Copy to: VP Business Development
If to the Founders: -
(i) Bank Industri Malaysia Berhad
Level 28, Bangunan Bank IndustRi
Bandar Wawasan
No. 10 1 6, Jalan Sultan Ismail
50250 Kuala Lumpur
Facsimile No: 603 298 5701
Attention: [REDACTED]
(ii) Khazanah Nasional Berhad
22nd Floor, Menara Dato'Onn
Pusat Dagangan Dunia Putra
41, Jalan Tun Ismail
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50480 Kuala Lumpur
Facsimile No: 603 441 6340
Attention: [REDACTED]
(iii) BI Walden Ventures Kedua Sdn. Bhd.
Level 28, Bangunan Bank Industri
Bandar Wawasan
No. 1016, Jalan Sultan Ismail
50250 Kuala Lumpur
Facsimile No: 603 298 5701
Attention: [REDACTED]
16. COSTS AND EXPENSES
Except as otherwise expressly provided in this Agreement, each Party to this
Agreement shall bear all costs and expenses incurred by it in connection with
the preparation and negotiation of this Agreement and in the transactions
contemplated hereby.
17. TIME OF THE ESSENCE
Time shall be of the essence of this Agreement.
18. SEVERABILITY
The eventual invalidity of any clause in this Agreement shall not affect the
validity of the rest of this Agreement unless such clause goes to the foundation
hereof If the invalid clause is of material and crucial importance to any of the
Parties, this Agreement may be terminated unless the invalid provisions may be
replaced in accordance with this Clause and provided that such void or invalid
clauses shall be replaced by provisions which are as close to the purpose of the
Parties as is possible without causing their invalidity.
19. WAIVER AND MODIFICATION OF AGREEMENT
IF BY REASON OF ANY UNFORESEEN OCCURRENCE OR DEVELOPMENT THE OPERATION OF THIS
AGREEMENT IS LIKELY TO CAUSE ANY INEQUITABLE HARDSHIP TO ONE OR MORE PARTIES
CONTRARY TO THE SPIRIT OF THIS AGREEMENT, THE PARTIES WILL NEGOTIATE IMMEDIATELY
IN GOOD FAITH TO RESOLVE IN WHAT MANNER THE TERMS AND CONDITIONS OF THIS
AGREEMENT MAY BE MODIFIED IN ORDER TO PROVIDE IN AN EQUITABLE MANNER AND WITHIN
THE SPIRIT OF THIS AGREEMENT FOR SUCH UNFORESEEN OCCURRENCE OR DEVELOPMENT.
NOTWITHSTANDING THE FOREGOING, NO MODIFICATION OR AMENDMENT OF THIS AGREEMENT
AND NO WAIVERS OF ANY OF THE TERMS AND CONDITIONS HEREOF SHALL BE VALID UNLESS
MADE IN WRITING AND SIGNED BY OR ON BEHALF OF EACH OF THE PARTIES.
20. COMPLIANCE
The Founders hereby agree to exercise their voting rights for the time being in
WTM and to take all steps and do all acts as for the time being as shall lie
within their power to procure that WTM performs and observes the provisions of
this Agreement.
21. NO JOINT VENTURE OR AGENCY
Nothing in this Agreement shall constitute or create a joint venture,
partnership, or any other similar arrangement between the Parties hereto. No
Party is authorised to act as agent for the other Party hereunder except as
expressly stated in this Agreement.
22. FORCE MAJEURE
In the event that either Party is prevented from performing or unable to perform
any of its obligations under this Agreement, except an obligation to pay money,
due to any act of God, fire, casualty, flood, earthquake, war, strike, lockout,
epidemic, riot, insurrection, or any other similar cause beyond the reasonable
control of the Party invoking this section (a "Force Majeure") and if such Party
shall have used its best efforts to mitigate the effects of such Force Majeure,
such Party shall give prompt written notice to the other Party, its
non-performance shall be excused, and the time for the performance shall be
extended for the period of delay or inability to perform due to such
occurrences.
23. ASSIGNMENT
Except as permitted under SUB-CLAUSE 6.7(c)(ca)(iii), a Party may assign this
Agreement only in connection with a permitted assignment under the Technology
Transfer Agreement.
24. FINDER'S FEE
Each of the Parties hereto hereby declares, represents and agrees that no
finder's fee or commission will be payable by any of them in respect of this
transaction and in the event of any such finder's fee or commission (including
all costs and expenses) is incurred thereby by any one of them, it is further
agreed that the respective Party will be solely liable for such finder's fee or
commission incurred.
25. SUCCESSORS BOUND
This Agreement shall be binding on the respective successors-in-title and
permitted assigns and permitted nominees of each of the Parties.
26. ENTIRETY: AMENDMENTS TO THE AGREEMENT
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This Agreement is the entire Agreement between the Parties hereto as to the
subject matter hereof and thereof and supersedes all prior understandings and
communications, written or oral regarding such subject matter. No amendments
hereto shall be effective unless in writing and signed by or on behalf of each
of the Parties.
27. EFFECT OF SCHEDULES AND ANNEXURES
All schedules and annexures hereto shall constitute essential and integral parts
of this Agreement and shall be taken, read and construed as essential and
integral parts of this Agreement.
28. UNDERSTANDING NATURE OF THE DOCUMENTS
The Parties hereby declare and confirm that they have each read this Agreement,
including all of the schedules and annexures hereto (if applicable), and their
respective authorised signatoriges declare and confirm that they have understood
fully and clearly the contents, nature and effect thereof.
29. COUNTERPARTS
This Agreement may be executed in counterparts, each of which shall be deemed an
original and all of which together shall constitute one and the same agreement.
IN WITNESS WHEREOF, the Parties hereto, by their duly authorised signatories,
hereby set their hands the day, month and year as set out in Part I of the First
Schedule hereof.
SIGNED BY )
)
for and on behalf of )
WAFER TECHNOLOGY )
(MALAYSIA)SDN. BHD. )
(COMPANY NO. 368948-D) )
in the presence of: ) /s/ Datuk Mohamad Saleh Bin Mohd Ghazali
---------------------------------------------
Datuk Mohamad Saleh Bin Mohd Ghazali
(New Nnc No. 441127-04-50751
Old Nnc No. 0883538)
/s/ Hasmah Razali
---------------------------------------------
(Hasmah Razali)
Company Secretary
SIGNED BY )
)
for and on behalf of )
LSI LOGIC CORPORATION )
in the presence of: ) /s/ Davd E. Sanders
---------------------------------------------
David E. Sanders
Vice President General Counsel
/s/ David G. Pursel
---------------------------------------------
David G. Pursel
Assistant Secretary
SIGNED BY )
)
for and on behalf of )
BANK INDUSTRI MALAYSIA )
in the presence of: ) /s/ Tan Sri Datuk Nira Aboul Rahman Arshad
---------------------------------------------
Tan Sri Datuk Nira Aboul Rahman Arshad
(Nnc No. 361127-04-5075)
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/s/ Hasmah Razali
---------------------------------------------
(Hasmah Razali)
Company Secretary
SIGNED BY )
for and on behalf of )
KRAZANAH NASIONAL )
BERHAD )
(COMPANY NO. 275505-K)
in the presence of:-
)
/s/ Tan Sri Dato Mohd Sheriff Bin Mohd Kassim
---------------------------------------------
Tan Sri Dato Mohd Sheriff Bin Mohd Kassim
(New Nnc No. 390802-02-50391
Old Nnc No. 1999724)
/s/ Salmah Sharif
---------------------------------------------
Salmah Sharif
(Company Secretary)
SIGNED BY )
)
for and on behalf of )
BI WALDEN VENTURES )
KEDUA SDN. BHD. )
(COMPANY NO. 235797-V) )
in the presence of:- ) /s/ Norazharuddin Bin Abu Talib
---------------------------------------------
Norazharuddin Bin Abu Talib
(Nnc No. 620524-01-5041)
/s/ Hasmah Razali
---------------------------------------------
(Hasmah Razali)
Company Secretary
72
<PAGE> 37
FIRST SCHEDULE
[REDACTED]
SECOND SCHEDULE
[REDACTED]
73
<PAGE> 38
ANNEXURE A
(to be taken read and construed as an
essential and integral part of this Agreement)
MEMORANDUM AND ARTICLES OF ASSOCIATION
OF WAFER TECHNOLOGY (MALAYSIA) SDN. BHD.
1993. LSI Sub Agr
74
<PAGE> 39
THE COMPANIES ACT, 1965
MALAYSIA
PRIVATE COMPANY LIMITED BY SHARES
MEMORANDUM
AND
ARTICLES OF ASSOCIATION
OF
WAFER TECHNOLOGY (MALAYSIA) SDN. BHD.
---------------------------------------------
Incorporated on the 29th day of November 1995
---------------------------------------------
75
<PAGE> 40
[LOGO]
PEJABAT PENDAFTAR SYARIKAT
MALAYSIA
BORANG 9
AKTA SYARIKAT, 1965
No. Syarikat Seksyen 16 (4)
368948 D
PERAKUAN PEMERBADANAN SYARIKAT SENDIRIAN
Adalah diperakui bahawa
WAFER TECHNOLOGY (MALAYSIA) SDN. BHD.
telah diperbadankan di bawah Akta Syarikat, 1965 pad dan mulai dari 29 haribulan
November 1995, dan bahawa syarikat ini adalah sebuah syarikat berhad menurut
syer dan bahawa syarikat ini adalah sebuah syarikat sendirian.
Dibuat di bawah tandatangan dan meterai saya di Kuala Lumpur.
pada 29 haribulan November 1995
/s/ Anuar B. Shamad
[SEAL] ---------------------------------
Anuar B. Shamad
PENOLONG PENDAFTAR SYARIKAT
MALAYSIA
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<PAGE> 41
THE COMPANIES ACT, 1965
COMPANY LIMITED BY SHARES
MEMORANDUM OF ASSOCIATION
OF
WAFER TECHNOLOGY (MALAYSIA) SDN. BHD.
1. The name of the Company is 'Wafer Technology (Malaysia) Sdn. Bhd.'
2. The registered office of the Company will be situated in Malaysia.
3. The objects for which the Company is established are:-
(1) To carry on all or any business of manufacturers, designers,
consultants, trainers, producers, exporters, importers, agents
and dealers related to the semiconductor industries.
(2) To carry on all or any of the business of manufacturers,
designer, suppliers, repairers, agents and factors for, dealers
in and hirers and renters of all types of electrical and
electronics apparatus, machinery and equipments.
(3) To transact and carry on all kinds of agency business and to hold
shares or invest in and to acquire, lease, promote or sell, and
to manage, conduct or undertake the business of management of
otherwise however direct the operations of any business, company,
corporation, firm or any other enterprise, undertaking or venture
and generally to undertake any of the business of a holding or
management company.
(4) To purchase, establish and carry on business as agents,
merchants, manufacturers, importers, exporters, commission
agents, del credere agents, removers, packers, storers,
storekeepers factors and manufacturers of and dealers in foreign
snf lovsl produce, manufactured goods, materials and general
merchandise and to import, buy, prepare, manufacture, render
marketable, sell, barter, exchange, pledge, charge, make advances
on and otherwise deal in or turn to account produce goods,
materials and merchandise generally either in their prepared,
manufactured or raw state and to undertake, carry on and execute
all kinds of financial, commercial trading and other
manufacturing operations.
(5) To carry on the business of garage keepers and suppliers of and
dealers in plants, electricity and other motive power to motor
and other things.
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<PAGE> 42
(6) To enter into any contracts in relation to and to erect,
construct, maintain, make, operate, own, alter, repair, pull down
and restore either alone or jointly with any other companies or
persons, works of all descriptions including wharves, docks,
piers, railways, tramways, roads, bridges, warehouses, actories,
mills, engines, machines, railway carriages, and wagons, gas
works, electric works, water works, drainage and sewerage works
and buildings of every description.
(7) To hold shares or invest in, and to acquire, lease, promote or
sell and to manager, conduct or undertake the business of
management or otherwise howsoever direct the operations of any
business, company, corporation, firm of any other whatsoever
enterprise, undertaking, or venture, and generally to undertake
any of the business of a holding, or management company.
(8) To carry or conduct all or any of the business of builders,
carpenters, carriers, contractors, decorators, dredges,
prospectors, jobmasters, quarryman, quarry proprietors, refiners
and smelters, victuallers, agents, dealers, exporters and
importers, merchants, makers or manufacturers for or in all goods
lines matters and things including bricks, furniture, hardware,
lime, metals, sands, stone, tiles timber, terra cotta and all
other building requisites, estate house or land agents.
(9) To alter, construct, equip, operate, and own buildings and
erections, mills, offices, vehicles and any other property of all
and every description and type and for all purposes.
(10) To carry on business as exporters, importers, cultivators,
winners sawmillers, and manufacturers of and dealers and traders
in every description of timber, wood and cane, raw manufactured
or partly manufactured goods and articles of any description made
entirely or partly of wood, timber or cane or any combination
thereof, products and by-products of any descriptions obtained
from wood, timber, cane or other forest or plant matter or thing
of any whatsoever description, or resulting from the handling,
manufacture, or processing of wood, timber, cane or other forest
produce, plant matter or thing including coal, charcoal, paper
plastics and other synthetic materials.
(11) To carry on the business of manufacturers of and dealers in paper
of all kinds, and articles made from paper or pulp, and materials
used in the manufacture or treatment of paper, including
cardboards, railway and other tickets, mill boards, and wall and
ceiling papers and to carry on the business of stationers,
lithographers and publishers.
78
<PAGE> 43
(12) To carry on any whatsoever form of business, trade o undertaking
whether as principals, agents, sub-agents or consignee and to
deal in any form of purpose matter or thing.
(13) To manager, operate and maintain fuel, oil and petrol pumps,
stations and retail and wholesale agencies, and garages, service
stations, workshops and repair shops.
(14) To obtain, procure, purchase, take on lease or sublease, exchange
or otherwise acquire in any part of the world any concessions,
grants, claims licences, leases, options, rights or privileges,
for any mining objects or purposes or any mines, mining rights or
concessions or any metalliferous lands, gravels or rivers, or any
lands of whatsoever tenure or title containing or supposed to
contain tin, precious stones, gold, silver, land, wolfram,
copper, iron, oil, coal, or other valuable products and to
explore, work, exercise, develop or otherwise turn to account,
deal with or dispose of any such concessions, grants, claims,
licences, leases, mines, lands, options, right or privileges and
produce thereof.
(15) To search for, win, get, work, raise, smelt, calcine, refine,
dress, amalgamate, quarry, reduce, wash, crush and prepare for
market, manipulate and make merchantable, buy, sell and deal in
tin, iron and other metals, minerals and other mineral
substances, precious stones and any other produce of any mines or
properties, vegetable and other produce and materials and
substances of all kinds, and to generally to carry on any
metallurgical operations which may seem conducive to any of the
Company's objects.
(16) To construct, maintain, improve, develop, work, control, operate,
and manage any waterworks, garages, and petrol, oil, fuel and
service stations, gasworks, reservoirs, roads, tramways electric
power, heat and light supply works, telephone works, motels,
guest house, rest houses, clubs, restaurants, baths, places of
worship, places of amusement, pleasure grounds, parks, gardens,
reading rooms, stores, shops, dairies, and other works and
conveniences which the Company may think directly or indirectly
conducive to these objects, and to contribute or otherwise assist
or take part in the construction, maintenance, development,
working, control and management thereof.
(17) To carry on business as tourist and travel agents and
contractors, and to facilitate tourism and travelling, and to
provide for tourists, travellers, holiday-makers and vacationers,
and to promote the provisions of all whatsoever amenities,
conveniences and facilities including passages, tickets, through
tickets, circular tickets, sleeping cars and berths, reserved
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<PAGE> 44
places, and carriage and transport of all kinds, including the
hire of any form or system of transport.
(18) To provide hotel and lodging facilities and all other kinds of
accommodation, guides, safe deposits, inquiry bureaus, libraries,
baggage transport and otherwise generally to provide all
whatsoever amenities requirements and services convenient,
expedient and necessary for persons touring, travelling, holding,
develop, promote, operate, manage, work and control holiday
resorts and camps, vacation centres and to arrange, organise, and
manage tours of all kinds, to arrange, organise and manage,
cruises journeys, tours, travels, trips, vouages and expeditions
of all kinds, and to promote, organise and manage amusements,
carnivals, cinemas, circuses, entertainments, exhibitions,
expositions, fairs, festivals, playground, theatres, shows,
plays, game competitions, contests, races, sports and recreation
of all kinds and to provide manage all whatsoever arenas,
courses, courts, fields, gymnasiums halls, pitches, pools, rings,
rinks, stadium, tracks and places thereof.
(19) To carry on business as dealers and general merchants, exporters,
and importers, general agents, and brokers, and to buy, sell
manipulate and deal (both wholesale and retails) in commodities
of all kinds which can conveniently be dealt with by the Company
in connection with any of its objects and to buy, hire,
manufacture, sell, deal and trade in all kinds of merchandise,
produce, goods, stores and to transact any or every description
of agency, commission, commercial development, manufacturing,
mercantile and financial business.
(20) To carry on the business of planter, farmers, and cultivators of
and dealers in rubber, oil palm, coconut, gutta percha, jelutong,
latex, bearing plants, nce, wheat, oats, cereals and grains of
all kinds, sugar, tea, bananas, coffee, cocoa, spices, pepper,
cinchona, cinnamon tobacco gambier, oil palms, cotton, flax,
fruits trees, potatoes; root crops, mulberry and other trees for
the production of silk, and all kinds of trees and plants.
(21) To carry on business as farmers, dairy and poultry farmers and
merchants, gaziers, cultivators, storekeepers, printers,
newspapers proprietors, cattle breeders, stockmen, provision
preservers, exporters and importers, brokers and to transact any
and every description of agency, commission, commercial
manufacturing mercantile and financial business.
(22) To manufacture, buy, sell, exchange and in any other whatsoever
manner deal with, utilise or turn to account any matter,
substance or thing including (but without prejudice to the
generality of the foregoing) bone, copra, fertiliser, guano
manure, and all agricultural and farm produce.
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<PAGE> 45
(23) To purchase, take on lease, hire or otherwise acquire, build,
construct, erect, equip, maintain, repair, adapt, pull down,
demolish, reconstruct, make and manufacture factories, buildings,
offices, mills, machinery engines, plant, tools, implements,
carts, vehicles, rollling stock, live and dead stocks, stores,
appliances, effects and other works, things and property of any
kind.
(24) To purchase, hire, sell, deal in, construct, equip, maintain,
improve, repair and use motor-cars, motor-lorries, motorcycles,
steam cars, steam wagons, tractors, air-ships, bicycles, carts,
carriages, ropeways, cableways, high lead lines, cranes, and all
other forms of craft, machine of vehicle, animals or material,
either terrestrially, sub-terraneously, or aerially and all tools
and parts hereof and all other things proper to be used in
connection therewith.
(25) To carry on all or any of the business of barge owners,
lightermen, stevedores, forwarding agents, and any other form of
transport business, ice merchants, refrigerating-storekeeper,
warehousemen, wharfingers and general traders.
(26) To carry on the business of chemists, druggists, drysalters, oil
and colourmen and importers, exporters and manufacturers of and
dealers in all pharmaceutical, medicinal, chemical, industrial
and other preparations, articles and compounds, cements, oils,
paints, pigments, and varnishes, drug, dye-ware paint and colour
grinders, makers of and dealers in proprietary articles of all
kinds and of electrical, chemical, photographical, surgical and
scientific apparatus and materials and to buy, sell, manufacture,
refine, manipulate, and deal in all substances, apparatus, and
things capable of being used in any such business as aforesaid or
in any way in connection therewith.
(27) To apply for purchase or otherwise acquire, use, assign, sell and
generally deal in patents, patent-rights, trade-marks, designs,
or other exclusive or non-exclusive or limited rights or
privileges and to use, develop, grant licences, and otherwise
turn to account the same or any interests thereunder and at
pleasure to dispose of the same in any way.
(28) To purchase, hire or otherwise acquire any photographic and other
apparatus in connection with cinematograph shows, amusement
parks, exhibition and all kinds of entertainment business.
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<PAGE> 46
(29) To aid, finance, subsidise or assist any company, corporation,
association, firm or individual with capital, credit, means and
resources of engaging in or carrying on any business or
transaction which this company is authorised to carry on or be
engaged in or any business or transaction capable of being
conducted so as directly or indirectly to benefit this company
and in particular for the import, export, purchase, sales, lease,
letting, dealing in, hiring and letting on hire, under
hire-purchase agreements or otherwise of any motor cars or
vehicles or any of other articles, goods, wares, merchandises, or
things and for the acquisition of taking on leases or hiring of
land, buildings, offices, or premises or the prosecution of any
works, undertakings, project or enterprises connected with any of
the said businesses or capable of being taken or carried on so as
directly or indirectly to benefit this Company.
(30) To invest the capital of the Company and make advances on all
description of motor vehicles and other goods, wares and
merchandise whether on mortgage or bill of sale or assignment and
whether subject to hire-purchase agreements or otherwise and to
seize, retake, sell, dispose of or repurchase the same and
generally to finance the carrying on of the hire-purchase
business in all its branches.
(31) To transact business as financiers, promoters and financial and
monetary agents in any part of the world and for such purposes to
establish agencies, and to appoint financial and managing agents
and attorneys and to produce the Company to be registered or
recognised.
(32) To receive money on deposit or to borrow or raise money with or
without security, or to secure the payment or repayment of money
or the satisfaction, observance or performances of any obligation
or liability undertaken or incurred by the Company in such manner
as the Company thinks fit and in particular by mortgage or charge
upon the undertaking or any part of the undertaking of the
Company or upon all or any assets of the Company or by the
creation and issue of debentures or debenture stock (perpetual or
terminable) charged as aforesaid or constituting or supported by
a floating charge, upon present and future property including
uncalled and called unpaid capital.
(33) To lend and advance money or give credit to any person or
company; to guarantee and give guarantee or indemnities for the
payment of money or the performance of contracts obligations by
any person or company; to secure or undertake in any way the
repayment of moneys lent or advanced to or the liabilities
incurred by any person or company; and otherwise to assist any
person or company.
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<PAGE> 47
(34) Subject to the provisions of any laws in force to buy and sell
foreign currency and exchange and to accept money for remittance
to all countries and accept deposit of money on loan at interest
or without interest.
(35) To carry on business as capitalist, financiers' concessionaires,
miners and merchants and to guarantee or become liable for the
payment of money or for the performance of any obligation and to
undertake and carry on and execute all kinds of financial,
mining, commercial, trading and other operations and to carry on
any other business which may seem to be capable of being carried
on in connection with any of these objects or be calculated
directly or indirectly to enhance the value of or facilitate the
realisation of or render profitable any of the Company's property
of rights.
(36) To advance, deposit, or lend money and property, to or with such
persons and on such terms as may seem expedient and to discount,
buy, sell bills, notes, warrants, coupons and other negotiable or
transferable documents.
(37) To transact and carry on all kinds of agency business and in
particular to collect rents and debts and to negotiate loans to
issue shares, stocks, debenture stocks.
(38) To administer trust estate, and the estates of deceased, bankrupt
or insolvent persons or the property of companies in liquidation
or any other estates liquidation and to undertake the office of
trustee, executor, administrator, assignee, inspector, customer,
guardian, treasurer, or any similar office, and to perform and
discharge the duties of any such office for commission, or other
remuneration, or otherwise.
(39) To appoint any persons (whether incorporated or not) to accept
and hold in trust for the company any property belonging to the
company, or in which it is interested and for any other purposes
and to execute and do all such deeds and things as may be
requisite in relation to any such trustee or trustees.
(40) To promote or assist in the promotion of any company for the
purpose of acquiring the undertaking of all or any of the
property and undertaking or any of the liabilities of this
Company, or of undertaking any business or operation which may
seem directly or indirectly likely to assist or benefit this
Company, or to enhance the value of any property or business of
this Company, or for any other purpose which may seem directly or
indirectly calculated to benefit this Company, and to place or
guarantee the placing
of, underwrite subscribe for, or otherwise acquire all or any
part of the shares debentures or debenture stock or securities of
any such company and to subsidise or otherwise assist any such
company.
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<PAGE> 48
(41) To purchase or otherwise acquire and undertake the whole or any
part of the business, goodwill, assets and liabilities of any
person, firm, or Company carrying on or proposing to carry on any
business which the Company is authorised to carry on or engage in
or possessed or property suitable for the purpose of or that may
be conducive to the interest of this Company and in particular so
that the consideration may be wholly or partly satisfied by the
allotment of shares, debentures, debenture stocks or securities
of the Company.
(42) To amalgamate, enter into partnership or any arrangement for
sharing profits, union of interest, co-operation, joint
adventure, reciprocal concession, mutual assistance or otherwise
with any person, firm or company, carrying on or engaged in or
about to carry on or engage in any business or transaction which
this Company is authorised to carry on or be engaged in or any
business or transaction capable of being conducted so as directly
or indirectly to benefit this Company and to acquire in any
manner whatsoever shares and securities of any such company.
(43) To subscribe for, take underwrite, purchase, or otherwise acquire
and hold shares, debentures, debenture stock or other interest in
or securities of any other company having objects altogether or
in part similar to those of this Company, or carrying on any
business capable of being conducted so as directly or indirectly
to benefit this Company.
(44) To purchase, acquire, hold, sell shares, stocks, debentures,
debenture stocks, bonds, obligations, and securities issued or
guaranteed by any company constituted or carrying on business in
any part of the world, and debentures, debenture stocks, bonds,
obligations and securities issued or guaranteed by any
government, sovereign ruler, commissioners, public body of
authority supreme, municipal, local or otherwise, whether at home
or abroad.
(45) To invest with the moneys of the Company not immediately required
upon such securities and in such manner as may from time to time
be determined.
(46) To sell, improve, manage, develop, lease, mortgage, dispose of,
exchange, turn to account or otherwise deal with all or any part
of the property and rights of the Company.
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<PAGE> 49
(47) To sell or dispose of all or any of the undertaking and assets
of the Company for such consideration as the Company may think
fit, and in particular for shares, debentures, debenture stock or
securities of any company having objects altogether or in part
similar to those of this Company.
(48) To distribute any property of the Company whether upon a division
of profits or a distribution of assets, among the members in
specie or otherwise.
(49) To enter into any arrangement with any governments or
authorities, municipal, local or otherwise, that may seem
conducive to the Company's objects, or any of them, and to obtain
from any such governments or authority any rights, privileges and
concessions which the Company may think it desirable to obtain,
and to carry out, exercise and comply with any such arrangements,
rights, privileges, and concessions.
(50) To carry on any other business whether similar to the foregoing
or not which may seem to the Company capable of being
conveniently carried on in connection with any of the objects of
the Company or calculated directly or indirectly to enhance the
value of or render profitable any of the Company's property or
rights.
(51) To draw, make, accept, endorse, discount, execute, and issue
promissory note, bills of exchange, bills of lading, warrants,
debentures, and other negotiable or transferable instruments.
(52) To borrow or raise money and to ensure the repayment of any money
borrowed, raised or owing in such manner as the Company shall
think fit and in particular by the issue of debentures or
debenture stocks, perpetual or otherwise, charged upon, and by
mortgage, charge, lien, debentures or debenture stocks, of and on
the whole or any part of the Company's property or assets (both
present or future), including its uncalled capital and also by a
similar mortgage, charge or lien to secure and guarantee the
performance by the Company or any other person or Company of any
obligation undertaken by the Company or any other person or
company as the case may be.
(53) To remunerate any person or company for services rendered or to
be rendered in placing or assisting to place or guaranteeing the
placing of any of the shares in or debentures, debenture stock or
other securities of the Company or in or about the promotion
formation, or business of the Company, or of any other company
promoted wholly or in part by this Company.
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<PAGE> 50
(54) To establish or aid in the establishment to contribute to and to
support or guarantee funds, trusts, insurance or pension schemes
and to make payment of gratuities and to make or enter into any
other whatsoever arrangement calculated or likely to benefit any
person who persons who are or have any time been employed by the
Company or its predecessors in business and the dependents or
relatives of such person or persons.
(55) To establish and or support or to aid in the establishment and or
support of and to make donations or subscription to or to
subsidise any whatsoever association, fund, institution, place of
worship, school, society or any other body.
(56) To make contributions and donations and in any other manner to
give aid assistance and to help any person, firm, company,
association, society or other body or party for any whatsoever
object or purpose.
And it is hereby declared that the word 'company' in this clause
except where used in reference to this Company, shall be deemed to
include any partnership or other body of persons whether incorporated or
unincorporated, and whether domiciled in Malaysia or elsewhere, and
further that the objects specified in each paragraph of this clause
shall be regarded as independent objects and accordingly shall, except
where otherwise expressed in any paragraph, be in no wise limited or
restricted by reference to, or inference from the terms of any other
paragraph or the name of the Company but may be carried out in as full
and ample a manner and construed just as wide a sense as if the said
paragraph defined the objects of a separate distinct and independent
company.
4. The liability of the members is limited.
5. The capital of the Company is RM500,000,000 Malaysian Currency divided
into 500,000,000 shares of RM1/- each. The shares in the original or any
increased capital may be divided into several classes and they may be
attached thereto respectively any preferential, deferred or other
special rights, privileges, conditions, or restrictions as to dividends,
capital, voting or otherwise.
6. Subject always to the respective rights, terms and conditions mentioned
in Clause 5 here of the Company shall have power to increase or reduce
the capital, to consolidate or sub-divide the shares into shares of
larger or smaller amount and to issue all or any part of the original or
any additional capital as fully paid or partly paid shares, and with any
special or preferential rights of privilege, or subject to any special
terms or conditions and either with or without any special designation,
and also from time to time to alter, modify, commute, abrogate or deal
with any such rights, privileges, terms, conditions or designation in
accordance with the regulations for the time being of the Company.
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<PAGE> 51
We, the several persons whose names and addresses are subscribed, are desirous
of being formed into a Company in pursuance of this Memorandum of Association,
and we respectively agree to take the number of shares in the capital of the
Company set opposite our respective names.
- - --------------------------------------------------------------------------------
Names, Addresses and Descriptions of Subscribers Number of Shares
taken by each
Subscriber
- - --------------------------------------------------------------------------------
ABDUL RAHMAN BIN HAJI SIRAJ
I/C No. 590326-01-5257
No. 258, Jalan 7,
Taman Sekamat Signed
43000 Kajang
Selangor Darul Ehsan ONE (1)
General Manager (Investment)
Khazanah Nasional Berhad
MOHAMAD SALEH BIN MOHD GHAZALI
I/C No. 0883538(B)
No. 55 Jalan SS 22/27A Signed
47400 Damansara Jaya
Selangor Darul Eshan ONE (1)
Executive Director
Bank Industri Malaysia Berhad
- - --------------------------------------------------------------------------------
Total number of shares taken TWO (2)
- - --------------------------------------------------------------------------------
Dated this 18th day of November, 1995
Witness to the above signature:-
Signed
---------------------------------
HASMAH RAZALI (MAICSA 0772752)
Company Secretary
17th Floor, Bangunan Bank Industri
Jalan Sultan Ismail
50250 Kuala Lumpur
87
<PAGE> 52
THE COMPANIES ACT, 1965
--------------------
COMPANY LIMITED BY SHARES
--------------------
ARTICLES OF ASSOCIATION
OF
WAFER TECHNOLOGY (MALAYSIA) SDN. BHD.
--------------------
TABLE A
Table 'A' excluded.
1. The regulations in Table A in the Fourth Schedule to the Act shall not
apply to the Company except so far as the same are repeated or contained
Definition in these Articles.
INTERPRETATION
Definition.
2. In these Articles the words standing in the first column of the Table
next hereinafter contained shall bear the meanings set opposite to them
respectively in the second column thereof, if not inconsistent with the
subject or context.
<TABLE>
<CAPTION>
WORDS MEANINGS
----- --------
<S> <C>
The Act ......... The Companies Act, 1965 and every other Act for
the time being in force concerning companies and
affecting the Company.
The Articles ......... The Articles of Association as originally framed
or as altered from time to time by Special
Resolution.
The Office ......... The Registered Office for the time being of the
Company.
The Seal ......... The common seal of the Company.
The Directors ......... The directors for the time being of the Company.
</TABLE>
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<PAGE> 53
<TABLE>
<CAPTION>
<S> <C>
The Secretary ......... Any person appointed to perform the duties of
the Secretary of the Company including any
person appointed temporarily.
Additional ......... Investors in the Company other than the
Investors Founders, which acquire by way of subscription
of the Ordinary Shares of the Company and their
successors-in-title and permitted assigns as the
case may be.
The Founders ......... Bank Industri Malaysia Berhad, Khazanah Nasional
Berhad, BI Walden Ventures Kedua Sdn. Bhd. are
desirous of regulating the relationship between
themselves as the founders of the Company.
The Malaysian ......... All constitutional provisions, statutes,
Law ordinances, subsidiary, legislation,
governmental directions, regulations, orders and
guidelines, rules of common law or equity and
judgements, determinations and awards of the
Malaysiani Governmental Entities.
BIMB ......... Bank Industri Malaysia Berhad
Khazanah ......... Khazanali Nasional Berhad
BI Walden ......... BI Walden Ventures Kedua Sdn. Bhd.
</TABLE>
Expressions referring to writing shall, unless the contrary intention appears,
be construed as including references to printing, lithography, photography, and
other modes of representing or reproducing words in a visible form.
Words importing the singular number only shall include the plural number and
vice versa.
Words importing the masculine gender only shall include the feminine gender.
Words importing persons shall include corporations.
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<PAGE> 54
Subject as aforesaid words or expressions contained in these Articles
shall be interpreted in accordance with the provisions of the
Interpretation Act, 1967 and of the Act as in force at the date at which
these Articles become binding on the Company.
PRIVATE COMPANY
Restrictions of Private Company.
3. The Company is a Private Company, and accordingly:
(a) the right to transfer shares is restricted in manner hereinafter
prescribed;
(b) the number of members of the Company (counting joint holders of
shares as one person and not counting any person in the
employment of the Company or of its subsidiary or any person who
while previously in the employment of the Company or of its
subsidiary was and thereafter has continued to be a member of the
Company) shall be limited to fifty: provided that where two or
more persons hold one or more shares in the Company jointly they
shall for the purposes of this paragraph be treated as a single
member;
(c) any invitation to the public to subscribe for any share in or
debentures of the Company is prohibited;
(d) any invitation to the public to deposit money with the Company
for fixed periods or payable at call, whether bearing or not
bearing interest, is prohibited.
SHARES
Approval of Company required for issue of shares by Directors.
4. The shares taken by the subscribers to the Memorandum of Association
shall be issued by the, Directors. Subject as aforesaid the directors
shall not, without the prior approval of the company in general meeting
exercise any power of the Company to issue shares. Such approval when
given shall be in accordance with Section 132D of the Act. No shares
shall be issued at a discount except in accordance with Section 59 of
the Act. Subject to the Act, any Preference Shares may, with the
sanction of an Ordinary Resolution, be issued on the terms that they
are, or at the option Of the Company are liable to be redeemed.
Sale shares to Additional Investors.
4A. With respect to the sale of any and all Ordinary Shares to Additional
Investors, the Founders hereby agree as follows:-
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- As a condition to the legal and effective issuance by the Company
of any Ordinary Shares to any Additional Investor, each such
Additional Investor shall either:-
- be bound by the terms of the Founders Agreement as if it were a
party to the Agreement; or
- otherwise hold and own its shares subject always to the
restrictions of Malaysian Law, that it shall be:-
- prohibited from acquiring an amount of Ordinary Shares equal to
or in excess of twenty per centum (20%) of the total issued
Ordinary Shares from time to time and at any time.
Notwithstanding the foregoing, and acquisition by an Additional
Investor of more than five per centum (5%) of the total issued
Ordinary Shares from time to time and at any time shall require
the prior written consent of the Founders hereto, which consent
shall not be unreasonably withheld;
- required to hold such shares for a period of seven (7) years from
the date of the issuance thereof, and
- prohibited from transferring such shares without the prior
written consent of each of the Founders hereto within such seven
(7) year period.
- All Additional Investors shall in addition hereto be bound by
such other terms and conditions herein mentioned as well as any
other terms and conditions which may from time to time and at any
time be determined by the Board.
Commission.
5. The Company may pay a commission to any person in consideration of his
subscribing or agreeing to subscribe, whether absolutely or
conditionally, for any shares in the Company, provided that the rate per
cent or the amount of procuring or agreeing the procure subscriptions,
whether absolute or conditional, of the commission paid or agreed to be
paid shall be disclosed in the manner required by the Act, that such
commission shall not exceed 10 per cent of the price at which such
shares are issued, or an amount equivalent to such percentage, and that
the requirements of Section 58 of the Act shall be observed. Subject to
the provisions of Section 54 of the Act, such commission may be
satisfied by the payment of cash or the allotment of fully paid shares
or partly in one way and partly in the other.
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Trust not to be recongnised.
6. No person shall be recognised by the Company as holding any share upon
any trust, and the Company shall not be bound by or be required in any
way to recognise (even when having notice thereof) any equitable,
contingent, future or partial interest in any share or any other rights
in respect of any share other than an absolute right to the entity
thereof in the registered holder except only as by these Articles
otherwise provided for or as by Act required or pursuant to any order of
court.
Issue of share certificates.
7. Every member shall be entitled, without payment, to receive within two
month after allotment or within one month after lodgement of transfer
one certificate under the seal for all the share registered in his name,
specifying the shares to which it relates and the amount paid up
thereon, provided that in the case of joint holders the Company shall
not be bound to issue more than one certificate and delivery of such
certificate to any one of them shall be sufficient delivery to all.
Issue of new Certificate in lieu of one defaced lost or destroyed.
8. If a share certificate be worn out, defaced, lost or destroyed, it may
be renewed on payment of such fee not exceeding one dollar and on such
term, if any, as to evidence and indemnity and, the payment, of
out-of-pocket expenses of the Company of investigating evidence, as the
directors think fit and in the case of defacement or wearing delivery of
the old certificate.
LIEN
Company to have a paramount lien.
9. The Company shall have a first and paramount lien upon all shares
(whether fully paid or not) registered in the name of any member, either
alone or jointly with any other person, for his debts, liabilities and
engagements whether the period for the payment, fulfillment or
discharge, thereof shall have actually arrived or not, and such lien
shall extend to all dividends from time to time declared in respect of
such shares, but the directors may at any time declare any share to be
wholly or in part exempt from the provision of this Article.
Enforcing lien by sale.
10. The Directors may sell any shares subject to such lien at such time or
times and in Enforcing Lien by such manner as they think fit, but no
sale shall be made until such time as the money sale. in respect of
which such lien exists or some part thereof are or is presently payable
or a liability or engagement in respect of which such lien exists is
liable to be presently fulfilled or discharged, and until a demand and
notice in writing stating the amount due or specifying the liability or
engagement and demanding payment or fulfillment or discharge thereof,
and giving notice of intention to sell in default, shall have been
served on such member or the persons (if any) entitled by transmission
to the shares, and default in payment, fulfillment or discharge shall
have been made by him or them for fourteen days after such notice.
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Evidence.
11. To give effect to any sale the directors may authorise some person to
transfer the shares sold to tile purchaser and may enter the purchaser's
name in the register as holder of the shares, and the purchaser shall
not be bound to see to the application of the purchase money, nor shall
his title to the shares be affected by any irregularity or invalidity in
the proceedings in reference to the sale.
Application of proceeds.
12. The net proceeds of any such sale shall be applied in or towards
satisfaction of the amount due to the Company, or of the liability or
engagement, as the case may be, and the balance (if any) shall be paid
to the member or the person (if any) entitled by transmission to the
shares so sold.
Members not entitled to dividend or vote until calls paid.
13. No member shall be entitled to receive any dividend or to exercise any
privileges as a member until he has paid all calls for the time being
due and payable on every share held by him, whether alone or jointly
with any other person, together with interest and expenses (if any).
CALLS ON SHARES
Directors may make call.
14. The directors may, subject to the provisions of these Articles, from
time to time make such calls upon the members in respect of all moneys
unpaid on their shares as they think fit, provided that fourteen days
notice at least is given of each call and each member shall be liable to
pay the amount of every call so made upon him to the persons by the
instalments (if any) and at the times and places appointed by the
directors.
Call.
15. A call shall be deemed to have been made at the time when the resolution
of the directors authorising such call was passed.
Joint holders.
16. The joint holders of a share shall be jointly and severally liable to
pay all calls and instalments in respect thereof.
Unpaid calls.
17. If before or on the day appointed for payment thereof a call or
instalment payable in respect of a share is not paid, the person from
whom the same is due shall pay interest on the amount of the call or
instalment at such rate not exceeding 10 per cent per annum as the
directors shall fix from the day appointed for payment thereof to the
time of actual payment, but the directors may waive payment of such
interest wholly or in part.
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Automatic calls.
18. Any sum which by the terms of allotment of a share is made payable
upon allotment or at any fixed date, whether on account of the amount
of the share or by way of premium, shall, for all purpose of these
Articles, be deemed to be a call duly made and payable on the date fixed
for payment, and in case of nonpayment the provisions of these Articles
as to payment of interest and expenses, forfeiture and the like, and all
the relevant provisions of these Articles, shall apply as if such sum
were a call duly made and notified as hereby provided.
Payment of calls.
19. The directors may, from time to time, make arrangements on the issue of
shares for a difference between the holders of such shares in the amount
of calls to be paid and in the time of payment of such calls.
Advance on calls.
20. The directors may, if they think fit, receive from any member willing to
advance the same all or any part of the moneys due upon his shares
beyond the sums actually called up thereon, and upon the moneys so paid
in advance, or so much thereof as exceeds the amount for the time being
called up on the shares in respect of which such advance has been made,
the directors may pay or allow such interest as may be agreed between
them and such member, in addition to the dividend payable upon such part
of the share in respect of which such advance has been made as is
actually called up.
TRANSFER OF SHARES
Transfer in writing.
21. Subject to the restrictions of these Articles, shares shall be
transferable but every transfer shall be in writing in the usual common
form or in such other form as the directors shall from time to time
approve, and shall be left at the office accompanied by the certificate
of the shares to be transferred and such other evidence (if any) as the
directors may reasonably require to show the right of the transferor to
make the transfer.
Transfer of Founders Shares.
21A. Unless the Shareholders otherwise agree in writing, a Transfer Notice
shall be deemed to be served by the Shareholder where there is a change
in its Control. Each Founder agrees not to divest or otherwise transfer
more than fifty per centum (50%) of the total of all the Ordinary Shares
owned by it pursuant to the Founders Agreement for a period of seven (7)
years from the date of the Founders Agreement. Subject to the foregoing,
the Founders agree as follows:-
- That the sale, transfer or disposal of the legal or beneficial
ownership of any of the Ordinary Shares shall be in accordance
with the provisions of the M & A.
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- In the event of any issue of Ordinary Shares, or any other
equity interests in the Company, being made by way of rights or
otherwise, such Ordinary Shares or other interests shall be first
offered to all Shareholders in proportion to their respective
shareholdings and, in the case of any Shareholder failing to take
up all or any of its portion of the new Ordinary Shares or other
interests, such Ordinary Shares or other interests as are not
taken up shall be offered to the other Shareholders in proportion
to their respective shareholdings at the relevant time.
- A Shareholder being a body corporate shall be entitled, subject
to the receipt of the relevant approval(s) of the Appropriate
Authorities, to transfer its shares in the Company to its
subsidiary or related corporation within the meaning of the Act;
PROVIDED THAT such transfer shall be null and void unless such
transferee agrees in writing to be bound by the terms of the
Founders Agreement.
Transferor's Right.
22. The instrument of transfer of any share shall be executed by or on
behalf of the transferor, and the transferor shall be deemed to remain
the holder of the share until the name, of the transferee is entered in
the register of members in respect thereof.
Directors may refuse registration of transfers.
23. The directors may, in their discretion, and without assigning any reason
thereof, refuse to register a transfer of any share to any person of
whom they do not approve, and they may also refuse to register a
transfer of any share on which the Company has a lien. If the directors
refuse to register a transfer they shall within one month after the date
on which the transfer was lodged with the Company send to the transferee
notice of the refusal in accordance with Section 105 of the Act.
Transfer Fee.
24. The Company shall be entitled to charge a fee not exceeding one dollar
($)1/-) on the registration of every transfer.
Closing of registers.
25. The registration of transfers may be suspended at such times and for
such periods as the directors may from time to time determine, provided
always that such registration shall not be suspended for more than
thirty days in any year.
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TRANSMISSION OF SHARES
Transmission.
26. In the case of the death of a member the survivors or survivor, where
the deceased was a joint holder, and the executors or administrators of
the deceased, where he was a sole or only surviving holder shall be the
only person recognised by the Company as having any title to his shares,
but nothing herein contained shall release the estate of a deceased,
joint holder from any liability in respect of any share jointly held by
him.
Person entitled to receive and give discharge for dividends.
27. A person entitled to a share by transmission shall be entitled to
receive, and may give a discharge for, any dividends or other moneys
payable in respect of the share, but he shall not be entitled in respect
of it to receive notice of or to attend or vote at meetings of the
Company or, save as aforesaid, to exercise any of the rights or,
privileges as a member unless and until he shall become a member in
respect of the share.
FORFEITURE OF SHARES
Notice to pay calls.
28. If any member fails to pay the whole or any part of any call or
instalment of a call on or before the day appointed for the payment
thereof, the directors may at time thereafter, during such time as the
call or instalment or any part thereof remains unpaid, serve a notice on
him or on the person entitled to the share by transmission requiring him
to pay such call or instalment or such part thereof as remains unpaid,
together with interest at such rate not exceeding 10 per cent per annum
as the directors shall determine, and any expenses that may have accrued
by reason of such non-payment.
Form of Notice.
29. The notice shall name a further day (not earlier than the expiration of
fourteen days from the date of the notice) on or before which such
call or instalment, or such part as aforesaid, and all interest and
expenses that have accrued by reason of such non-payment, are to be
paid. It shall also name the place where payment is to be made, and
shall state that, in the event of non-payment at or before the time and
at the place appointed, the shares in respect of which such call was
made will be liable to be forfeited.
Shares Forfeiture.
30. If the requirements of any such notice as aforesaid are not complied
with, any share in respect of which such notice has given may at any
time thereafter, before the payment required by the notice has been
made, be forfeited by a resolution of the directors to that effect. A
forfeiture of s hares shall include all dividends in respect of the
shares not actually paid before the forfeiture notwithstanding that they
shall have been declared.
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Notice for Forfeiture.
31. When any share has been forfeited in accordance with these Articles,
notice of the forfeiture shall forthwith be given to the holder of the
share or to the person entitled to the shares by transmission, as the
case may be, and an entry of such notice having been given, and of the
forfeiture with the date thereof, shall forthwith be made in the
register of members opposite to the share.
Directors may allow forfeitured Shares to be redeemed.
32. Notwithstanding any such forfeiture as aforesaid the directors may, at
any time before the forfeited share has been otherwise disposed of,
annul the forfeiture upon the terms of payment of all calls and interest
due thereon and all expenses incurred in respect of the share and upon
such further terms (if any) as they shall see fit.
Forfeitured Shares may be sold or reallotted.
33. Every share which shall be forfeited may be sold, re-allotted or
otherwise disposed of, either to the person who was before forfeiture
the holder thereof or entitled thereto, or to any other person upon such
terms and in such manner as the directors shall think fit, and the
directors may, if necessary, authorise some person to transfer the same
to such other person as aforesaid.
Arrears to be paid notwithstanding forfeiture.
34. A shareholder whose shares have been forfeited shall notwithstanding,
be liable to pay to the Company all calls made and not paid on such
shares at the time of forfeiture, and interest thereon to the date of
payment, in the same manner in all respects as if the shares had not
been forfeited, and to satisfy all (if any) the claims and demands which
the Company may have enforced in respect of the shares at the time of
forfeiture, without any deduction or allowance for the value of the
shares at the time of forfeiture.
Forfeiture of shares shall involve extinction of interest in and claims
against Company.
35. The forfeiture of a share shall involve the extinction at the time of
forfeiture of all interest in and all claims and demands against the
Company in respect of the share, and all other rights and liabilities
incidental to the share as between the shareholder whose share is
forfeited and the Company, except only such of those rights and
liabilities as are by these Articles expressly saved, or as are by the
Act given or imposed in The case of past members.
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Evidence of forfeiture and validity of sale.
36. A statutory declaration in writing that the declarant is a director of
the Company and that a share has been duly forfeited in pursuance of
these Articles, and stating the date upon which it was forfeited, shall,
as against all persons claiming to be entitled to the share adversely to
the forfeiture thereof, be conclusive evidence of the facts therein
stated, and such declaration, together with the receipt of the Company
for the consideration (if any), given for the share on the sale or
disposition thereof, and a certificate of proprietorship of the share
under the seal delivered to the person to whom the same is sold or
disposed of shall constitute a good title to the share, and such person
shall be registered as the holder of the share and shall be discharged
from all calls made prior to such sale or disposition, and shall not be
bound to see to the application of the purchase money (if any), nor
shall his title to the share be affected by any act, omission or
irregularity relating to or connected with the proceedings in reference
to the forfeiture, sale, re-allotment or disposal of the share.
CONVERSION OF SHARES INTO STOCK
Conversion of Shares into stock and reconversion.
37. (1) The company may by ordinary resolution passed at a general
meeting convert any paid shares into stock and reconvert any
stock into paid up shares of any denomination.
Shareholders of stock may be transfer their interests.
(2) The holders of stock may transfer the same or any part thereof
in the same manner and subject to the same regulations as and
subject to which the shares from which the stock arose might
previously to conversion have been transferred or as near
thereto as circumstances admit; but the directors may from time
to time fix the minimum amount of stock transferable and
restrict or forbid the transfer of fractions of that minimum,
but the minimum shall not exceed the nominal amount of the
shares from which the stock arose.
Participation in dividends and profits.
(3) The holders of stock shall according to the amount of the stock
held by them have the same rights, privileges and advantages as
regards dividends voting at meetings of the Company and other
matters as if they held the shares from which the stock arose,
but no such privilege or advantage (except participation in the
dividends and profits of the Company and in the assets on
winding up) shall be conferred by any such aliquot part of stock
which would not if existing in shares have conferred that
privilege or advantage.
Provision applicable to paid-up shares apply to stock.
(4) Such of the regulations of the Company as are applicable to
paid-up shares shall apply to stock, and the words "share" and
"shareholder" therein shall include "stock" and "stock-holder".
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ALTERATION OF CAPITAL
Power to increase capital.
38. The Company may from time to time by Ordinary Resolution increase the
share capital by such sum, to be divided into shares of such amount, as
the resolution shall prescribe.
Company may alter its capital in certain ways.
39. The Company may by Ordinary Resolution:-
(a) Consolidate and divide all or any of its share capital into
shares of larger amount than its existing shares; or
(b) Sub-divide its existing shares, or any of them into shares of
smaller amount that is fixed by the Memorandum of Association
subject, nevertheless, to the provisions of the Act, and so that
as between the resulting shares, one or more of such shares may
by the resolution by which such sub-division is effected be given
any preference or advantage as regards dividend, capital, voting
or otherwise over the others or any other of such shares; or
(c) Cancel any shares not taken or agreed to be taken by any person.
Reduction of capital.
40. The Company may by Special Resolution reduce its share capital capital
redemption reserve fund in any manner authorised and subject to any
conditions prescribed by the Act.
MODIFICATION OF CLASS RIGHTS
Rights of Shareholders may be altered.
41. Subject to the provisions of Section 65 of the Act, all or any of the
rights, privileges or conditions for the time being attached or
belonging to any class of shares for the time being forming part of the
share capital of the Company may from time to time be modified,
affected, varied, extended or surrendered in any manner with the consent
in writing of the holders of not less than three-fourths of the issued
shares of that class or with the sanction of an Extraordinary Resolution
passed at a separate meeting of the members of that class. To any such
separate meeting all the provisions of these Articles as to General
Meetings of the Company shall mutatis mutandis apply, but so that the
necessary quorum shall be members of the class holding or representing
by proxy one-third of the share capital paid or credited as paid on the
issued shares of the class, and every holder of shares of the class in
question shall be entitled on a poll to one vote for e very such share
held by him.
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GENERAL MEETINGS
Extraordinary General Meeting.
42. An annual general meeting of the Company shall be field in accordance
with the provisions of the Act. All general meeting other than the
annual general meeting shall be called extraordinary general meeting.
Notice of meeting for Special Resolution.
43. Subject to the provisions of the Act relating to Special Resolutions and
agreements for shorter notice fourteen days' notice at the least,
specifying the place, the day and the hour of meeting, and in the case
of special business the general nature of such business shall be given
in manner hereinafter mentioned to such persons as are under the
provisions of these Articles entitled to receive notices of General
Meetings from the Company, but with the consent of all persons for the
time being entitled as aforesaid, a meeting may be convened upon a
shorter notice, and in such manner as such persons may approve. The
accidental omission to give such notice to, or to the non-receipt of
such notice by, tiny person shall not invalidate the proceedings of any
resolution passed at any such meeting.
Special Business.
44. All business shall be special that is transacted at an extraordinary
general meeting, and also all that is transacted at an annual general
meeting, with the exception of declaring a dividend, the consideration
of the accounts, balance sheets, and report of the directors and
auditors, the election of directors in the place of those retiring, and
the appointment and fixing of the remuneration of the Auditors.
Resolutions in writing signed by all members effective.
45. Subject to the provisions of the Act, a resolution in writing signed by
all the members for the time being entitled to receive notice of and
attend and vote at General Meetings (or being corporations by their duly
authorised representatives) shall be valid and effective as if the same
had been passed at a General Meeting of the Company duly convened and
held, and may consist of several documents in the like form each signed
by one or more members.
PROCEEDINGS AT GENERAL MEETING
Quorum.
46. No business shall be transacted at any general meeting unless a quorum
of members is present at the time when the meeting proceeds to business.
Save as herein otherwise provided, two members present in person shall
be a quorum. For the purpose of this regulation "member" includes a
person attending as a proxy or as representing a corporation which is a
member.
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When quorum not present.
47. If within half an hour from the time appointed for the meeting a quorum
is not present, the meeting, if convened upon the requisition of
members, shall be dissolved; in any other case it shall stand adjourned
to the same day in the next week at the same time and place, or to such
other day and at such other time and place as the directors may
determine.
Chairman of General Meeting.
48. The chairman, if any, of the board of directors shall preside as
chairman at every general meeting of the Company, or if there is no such
chairman, or if he is not present within fifteen minutes after the time
appointed for the holding of the meeting or is unwilling to act, the
members present shall elect one of their number to be chairman of the
meeting.
Power to adjourn General Meeting.
49. The chairman may, with the consent of any meeting at which a quorum is
present (and shall if so directed by the meeting), adjourn the meeting
from time to time and from place to place, but no business shall be
transacted at any adjourned meeting other than the business left
unfinished at the meeting from which the adjournment took place. When a
meeting is adjourned for thirty days or more, notice of the adjourned
meeting shall be given as in the case of an original meeting. Save as
aforesaid it shall not be necessary to give any notice of an adjournment
or of the business to be transacted at an adjourned meeting.
How questions to be decided at meeting.
50. At any general meeting a resolution put to the vote of the meeting shall
be decided on a show of hands unless a poll is (before or on the
declaration of to be decided at the result on the show of hands)
demanded:-
(a) by the chairman;
(b) by at least two members present in person or by proxy;
(c) by any member or members present in person or by proxy and
representing not less than one-tenth of the total voting rights
of all the members having the right to vote at the meeting; or
(d) by a member or members holding shares in the Company conferring a
right to vote at the meeting being shares on which an aggregate
sum has been paid up equal to not less than one-tenth of the
total sum paid up on all the shares conferring that right.
Unless a poll is so demanded a declaration by the chairman that a
resolution has on a show of hands been carried or carried unanimously,
or by a particular majority, or lost, and an entry to that effect in the
book containing the minutes of the proceedings of the Company shall be
conclusive evidence of the fact without proof of the number or
proportion of the votes recorded in favour of or against the resolution.
The demand for a poll may be withdrawn.
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Poll to be taken.
51. If a poll is duly demanded it shall be taken in such manner and either
at once or after an interval or adjournment or otherwise as the chairman
directs, and the result of the poll shall be the resolution of the
meetings at which the poll was demanded, but a poll demanded on the
election of a chairman or on a question of adjournment shall be taken
forthwith.
Chairman to have casting votes.
52. In the case of an equality of votes, whether on a show of hands or on a
poll, the chairman of the meeting at which the show of hands takes place
or at which the poll is demanded shall not be entitled to a second or
casting vote.
VOTES OF MEMBERS
Right to vote.
53. Subject to any rights or restrictions for the time being attaching to
any class or classes of shares, at meetings of members or of classes
of members each member entitled to vote may vote in person or by proxy
or by attorney and on a show of hands every person present who is a
member or a representative of a member shall have one vote, and on a
poll every member present in person or by proxy or by attorney or other
duly authorised representative shall have one vote for every such share
he holds.
Joint holder.
54. In the case of joint holders the vote of the senior who tenders a vote,
whether in person or by proxy, shall be accepted to the exclusion of the
votes of the other joint holders; and for this purpose seniority shall
be determined by the order in which the names stand in the register of
members.
Members of unsound mind.
55. A member who is of unsound mind or whose person or estate is liable to
be dealt with in any way under the law relating to mental disorder may
vote, whether on a show of hands or on a poll, by this committee or by
such other person as properly has the management of his estate, and any
such committee or other person may vote by proxy or attorney.
No member to vote whilst calls unpaid.
56. No member shall be entitled to vote at any general meeting unless all
calls or other sums presently payable by him in respect of shares
company have been paid.
Votes to be taken as chairman shall direct.
57. No objection shall be raised to the qualification of any voter except at
the meeting or adjourned meeting at which the vote objected to is given
or tendered, and every vote not disallowed at such meeting shall be
valid for all purposes. Any such objection made in due time shall be
referred to the chairman of the meeting, whose decision shall be final
and conclusive.
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Proxy to be in writing.
58. The instrument appointing a proxy shall be in writing (in the common or
usual form) under the hand of the appointee or of his attorney duly
authorised in writing or, if the appointer is a corporation, either
under seal or under the hand of an officer of attorney duly authorised.
A proxy may but need not be a member of company. The instrument
appointing a proxy shall be deemed to confer authority to demand or join
in demanding a poll.
Form of Proxy.
59. Where it is desired to afford members an opportunity of voting for or
against a resolution the instrument appointing a proxy shall be in the
following form or a form as near thereto as circumstances admit:-
I/We, WAFER TECHNOLOGY (MALAYSIA) SDN. BHD. being a member/members of
the abovenamed Company, hereby appoint ____________________ of
____________________ or failing him of ___________________ as my/our
proxy to vote for me/us on my/our behalf at the (annual or
extraordinary, as the case may be) general meeting of the Company, to be
held on the _____________ day of 19______ , and at any adjournment
thereof.
Signed this _________________ day of __________ 19__
This form is to be used + in favour of the resolution.
against
+ Strike out whichever is not desired. (Unless otherwise instructed, the
proxy may vote as he thinks fit).
Instrument appointing proxy to be deposited.
60. The instrument appointing a proxy and the power of attorney or other
authority, if any, under which it is signed or a notarially certified
copy of that power or authority shall be deposited at the registered
office of the company, or at such other place within Malaysia as is
specified for that purpose in the notice convening the meeting, not less
than forty-eight hours before the time for holding the meeting or
adjourned meeting at which the person named in the instrument proposed
to vote, or, in the case of a poll, not less than twenty-four hours
before the time appointed for the taking of the poll, and in default the
instrument of proxy shall not be treated as valid.
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Revocation of authority.
61. A vote given in accordance with the terms of an instrument of proxy or
attorney shall be valid notwithstanding the previous death or
unsoundness of mind of the principal or revocation of the instrument or
of the authority under which the instrument was executed, or the
transfer of the share in respect of which the instrument is given, if no
intimation in writing of such death, unsoundness of mind, revocation or
transfer as aforesaid has been received by the company at the registered
office before the commencement of the meeting or adjourned meeting at
which the instrument is used.
DIRECTORS APPOINTMENT, ETC
First Directors.
62. The first Directors shall be Abdul Rahman bin Haji Straj and Mohamad
Saleh bin Mohd Ghazall.
Retirement of Directors.
63. At the first annual general meeting of the Company all the directors
shall retire from office, and at the annual general meeting in every
subsequent year one-third of the directors for the time being, or if
their number is not three or a multiple of three, then the number
nearest one-third shall retire from office.
Eligible for re-election.
64. A retiring director shall be eligible for re-election.
Determination of Director to retire.
65. The directors to retire in every year shall be those who have been
longest in office since their last election, but as between person who
become directors on the same day those to retire shall (unless they
otherwise agree among themselves) be determined by lot.
Filling of vacancy.
66. The Company at the meeting at which a director so retires may fill the
vacated office by electing a person thereto and in default the retiring
director shall if offering himself for re-election and not being
disqualified under the Act from holding office as a director be deemed
to have been re elected, unless at that meeting it is expressly resolved
not to fill the vacated office, or unless a resolution for the
re-election of that director is put to the meeting and lost.
Increase or reduction in number of Directors.
67. The Company may from time to time by ordinary resolution passed at a
general meeting increase or reduce the number of directors, and may also
determine in what rotation the increased or reduced number is to go out
Of office. Until and unless otherwise determined as aforesaid the number
of directors shall be seven.
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Founder Nomination of Directors.
67A. The Founders shall collectively be entitled to nominate a minimum of
three (3) directors to the Board so long as they shall in total hold a
minimum of forty per centum (40%) of the issued and paid-up share
capital of the Company. In the event of any change in the shareholding
of the Company, the Founders shall use their reasonable commercial
efforts to ensure that the composition of the Board will reflect the
shareholding of the Company in accordance with the provisions of the
M&A. The Chief Executive Officer shall at all times be also a Director
of the Company.
Casual vacancy or additional appointment.
68. The directors shall have power at any time, and from time to time, to
appoint any person to be a director, either to fill a casual vacancy or
as an addition to the existing directors, but so that the total number
of directors shall not at any time exceed the number fixed in accordance
with these regulations. Any director so appointed shall hold office only
until the next following annual general meeting and shall then be
eligible for re-election but shall not be taken into account in
determining the directors who are to retire by rotation at that meeting.
Removal of directors.
69. The Company may by ordinary resolution remove any director before the
expiration of his period of office, and may by an ordinary resolution
appoint another person in his stead: the person so appointed shall be
subject to retirement at the same time as if he had become a director
on the day on which the director in whose place he is appointed was last
elected a director.
Nominee Director of Founder.
69A. Each Founder may remove any Board member which it has so nominated and
may nominate at any time a successor thereto. In the event a Board
member resigns, is removed or becomes unable to serve, the Shareholder
which nominated such member shall within ninety (90) days nominate a
successor who shall be elected to the Board.
Remuneration of Directors.
70. The remuneration of the directors shall from time to time be determined
by the company in general meeting. That remuneration shall be deemed to
accrue from day to day. The directors may also be paid all traveling,
hotel, and other expenses properly incurred by them in attending and
returning from meeting of the directors or any committee of the
directors or general meetings of the company or in connection with the
business of the company.
Qualifications of Directors.
71. There shall be no shareholding qualification for directors.
Office of Directors vacated in certain cases.
72. The office of director shall become vacant if the director:-
(a) ceases to be a director by virtue of the Act.
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(b) becomes bankrupt or makes any arrangement or composition with its
creditors generally;
(c) becomes prohibited from being a director by reason of any under
the Act;
(d) becomes of unsound mind or a person whose person or estate is
liable to be dealt with in any way under the law relating to
mental disorder;
(e) resigns his office by notice in writing to the company;
(f) for more than six months is absent without permission of the
directors from meetings of the directors held during that period;
(g) without the consent of the company in general- meeting holds any
other office of profit under the company except that of managing
director or manager; or
(h) is directly or indirectly interested in any contract or proposed
contract with the company and fails to declare the nature of his
interest in manner required by the Act.
POWERS AND DUTIES OF DIRECTORS
General powers of the Company vested in Directors.
73. The business of the company shall be managed by the directors who may
pay all expenses incurred in promoting and registering the company, and
may exercise all such powers of the company as are not, by the Act or
by these regulations, required to be exercised by the company in general
meeting, subject, nevertheless, to any of these regulations, to the
provisions of the Act, and to such regulations, being not inconsistent
with the aforesaid regulation or provisions as may be prescribed by the
company in general meeting; but no regulation made by the company in
general meeting shall invalidate any prior act of the directors which
would have been valid if that regulation had not been made.
Power of Directors to borrow and issue of Debentures.
74. The directors may exercise all the powers of the company to borrow money
and to mortgage or charge its undertaking, property, and uncalled
capital, or any part thereof, and to issue debentures and other
securities whether outright or as security for any debt, liability, or
obligation of the company or of any third party.
Branch registers.
75. The directors may exercise all the powers of the company in relation to
any official seal for use outside Malaysia and in relation to branch
register.
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Directors may appoint attorneys.
76. The directors may from time to time by power of attorney appoint any
corporation, firm, or person or body of persons, whether nominated
directly or indirectly by the directors, to be the attorney or attorneys
of the company for such purposes and with such powers, authorities, and
discretions (not exceeding those vested in or exercisable by the
directors under these regulations) and for such period and subject to
such conditions as they may think fit, and any such powers of attorney
may contain such provisions for the protection and convenience of
persons dealing with any such attorney as the directors may think fit
and may also authorise any such attorney to delegate all or any of the
powers, authorities, and discretions vested in him.
Execution of negotiable instruments and receipts for money paid.
77. All cheques, promissory notes, drafts, bills of exchange, and other
negotiable instruments, and all receipts for money paid to the company,
shall be signed, drawn accepted, endorsed, or otherwise executed, as the
case may be, by any two directors or in such other manner as the
directors from time to time determine.
Minutes to be made and when signed by chairman to be conclusive
evidence.
78. The directors shall cause minutes to be made:-
(a) of all appointments of officers to be engaged in the management
of the company's affairs;
(b) of names of directors present at all meetings of the company and
of the directors; and
(c) of all proceedings at all meetings of the company and of the
directors.
Such minutes shall be signed by the chairman of the meeting at which
the proceedings were held or by the chairman of the next succeeding
meeting.
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PROCEEDINGS OF DIRECTORS
Meetings.
79. The Directors may meet together for the despatch of business adjourned
and otherwise regulate their meetings as they think fit. A director may
at any time and the Secretary shall on the requisition of a Director
summons a meeting of the Directors by giving them fourteen (14) days
notice together with the agenda annexed therewith will be given for any
Board meeting unless such notice is waived in writing by all the
Directors. Meetings of the Board or of any committee thereof may be held
by means of conference telephone or similar communications equipment by
means of which all persons participating in the meeting can hear each
other at the same time, and participation in a meeting pursuant to this
provision shall constitute presence in person at such meeting. If the
Board so authorises or requests, auditors, consultants, advisors and
employees shall be permitted to attend and speak at meetings of the
Board, but not to vote.
Meetings of committee.
80. Subject to these regulations, questions, arising at any meeting of
directors shall be decided by a majority of votes and a determination by
a majority of directors shall for all purposes be deemed a determination
of the directors. In case of an equality of votes the chairman of the
meeting shall not have a second or casting vote.
Restriction on voting.
81. A director shall not vote in respect of any contract or proposed
contract with the company in which he is interested, or any matter
arising thereout, and if he does so vote his vote shall not be counted.
Appointment of alternate Directors.
82. Any director with the approval of the directors may appoint any person
(whether a member of the company or not) to be an alternate or
substitute director in his place during such period as he thinks fit.
Any person while he so holds office as an alternate or substitute
director shall be entitled to notice of meetings of the directors and to
attend and vote thereat accordingly, and to exercise all the powers of
the appointee in his place. An alternate or substitute director shall
not require any share qualification, and shall ipso facto vacate office
if the appointee vacates office as a director or removes the appointee
from office. Any appointment or removal under this regulation shall be
effected by notice in writing under the hand of the director making the
same.
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Quorum.
83. The quorum necessary for the transaction of the business of the
Directors may be fixed by the Directors and unless so fixed shall be
four (4) Directors for the time being, two (2) of whom shall be a
nominee each of Khazanali and BIMB respectively. If within half an hour
from the time appointed for the holding of the meeting, a quorum is not
present, the meeting shall be adjourned to a date which is fourteen (14)
days from the date of such meeting at the same time and place or to such
other time and place as the directors present may agree. If at such
adjourned meeting a quorum is not present within half an hour from the
time appointed for holding the adjourned meeting, any four (4) Directors
present shall form a quorum.
Number reduced below quorum.
84. The continuing directors may act notwithstanding any vacancy in their
body, but if and so long as their number is reduced below the number
fixed by or pursuant to the regulations of the company as the necessary
quorum of directors, the continuing directors or director may act for
the purpose of increasing the number of directors to that number or of
summoning a general meeting of the company, but for no other purpose.
Chairman.
85. The Chairman of the Board shall be a nominee Director of any Founder of
the Company. In the event that the Chairman is unable to fulfill his
duties for any reason whatsoever, any other directors present may be
appointed to chair the Meeting.
Committees.
86. The Board shall appoint a Management committee comprising five (5)
directors. Each of the Founders shall be entitled to nominate one (1)
each to the Executive Committee and the single largest Additional
Investor shall be entitled to nominate one (1) director to the Executive
Committee. The Chief Executive Officer shall be the other director
thereon. The Management Committee shall, unless otherwise required by
the Board:-
- to perform such duties as may be delegated to it by the Board;
- have to power to co-opt such persons as it thinks appropriate to
assist it in the management of the Company;
- cause to be prepared for approval by the Board an annual business
plan outlining the proposed objectives of the said Business of
the Company; and
- to comply with all decisions and directions of the Board
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Chairman of Committee.
87. A committee may elect a chairman of its meetings; if no such chairman is
elected, or if at any meeting the chairman is not present within ten
minutes after the time appointed for holding the meeting, or is
unwilling to act the members present may choose one of their number to
be chairman of the meeting.
Meetings of Committee.
88. A committee may meet and adjourn as it thinks proper. Questions arising
at any meeting shall be determined by a majority of votes of the member
present, and in the case of an equality of votes the chairman shall not
have a second or casting vote.
Validity of acts where appointment effective.
89. All acts done by any meeting of the directors or of a committee of
directors or by any person acting as a director shall, notwithstanding
that it is afterwards discovered that there was some defect in the
appointment of any such director or person acting as aforesaid, or that
they or any of them were disqualified, be as valid as if every such
person had been duly appointed and was qualified to be a director.
Resolutions in writing signed by Directors effective.
90. A resolution of the Board shall be passed by a simple majority of votes
of the Directors present at a meeting at which there is a quorum,
however a resolution in writing, if signed by all the Directors of the
Board, shall be as valid as if passed a duly convened and held Board
meeting.
MANAGING DIRECTORS
Appointment of Managing Director.
91. The directors may from time to time appoint one or more of their body to
the office of managing director for such period and on such terms as
they think fit and, subject to the terms of any agreement entered into
in any particular case, may revoke any such appointment. A director so
appointed shall not, while holding that office, be subject to retirement
by rotation or be taken into account in determining the rotation of
retirement of directors, but his appointment shall be automatically
determined if he ceases from any cause to be a director.
Remuneration of Managing Director.
92. A managing director shall, subject to the terms of any agreement entered
into in any particular case, receive such remuneration (whether by way
of salary, commission, or participation in profits or partly in one way
and partly in another) as the directors may determine.
Powers.
93. The directors may entrust to and confer upon a managing director any of
the powers exercisable by them upon such terms and conditions and with
such restrictions as they may think fit, and either collaterally with or
to the exclusion of their own powers, and may from time to time revoke
withdraw, alter, or vary all or any of those powers.
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ASSOCIATE DIRECTORS
Appointment of associate Directors.
94. The directors may from time to time appoint any person to be an
associate director and may from time to time cancel any such
appointment. The directors may fix, determine and vary the powers,
duties and remuneration of any person so appointed, but a person so
appointed shall not be required to hold any shares to qualify him for
appointment nor have any right to attend or vote at any meeting of
directors except by the invitation and with the consent of the
directors.
SECRETARY/JOINT SECRETARIES
Secretary/joint secretaries.
95. The secretary/joint secretaries shall in accordance with the Act be
appointed by the directors for such terms, at such remuneration, and,
upon such conditions as they may think fit, and any secretary/joint
secretaries so appointed may be removed by them. The first Secretary of
the Company shall be Hasmah binti Razall (MAICSA 0772752).
SEAL
Custody and affixing of seal.
96. The directors shall provide for the safe custody of the seal, which
shall only be used by the authority of the directors or of a committee
of the directors authorised by the directors in that behalf, and every
instrument to which the seal is affixed shall be signed by a director
and shall be countersigned by the secretary or by a second director or
by some other person appointed by the directors for the purpose.
ACCOUNTS
Accounts to be kept.
97. The directors shall cause proper accounting and other records to be kept
and shall distribute copies of balance sheets and other documents as
required by the Act and shall from time to time determine whether and to
what extent and at what times and places and under what conditions or
regulations the accounting and other records of the company or any of
them shall be opened to the inspection of members not being directors
and no member (not being a director) shall have any right of inspecting
any account or book or paper of the Company except as conferred by
statute or authorized by the directors or by the Company in general
meeting.
DIVIDENDS AND RESERVES
Declaration of Dividend.
98. The company in general meeting may declare dividends, but no dividend
shall exceed the amount recommended by the directors.
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Interim Dividend.
99. The directors may from time to time pay to the members such interim as
appear to the directors to be justified by the profits of the company.
No interest on unpaid Dividend.
100. No dividend shall be paid otherwise than out of profit or shall bear
interest against the company.
Payment of dividends.
101. The directors may, before recommending any dividends, set aside out of
the profits of the Company such sums as they think proper as reserves
which shall, at the discretion of the directors, be applicable for any
purposes at which the profits of the Company may be properly applied,
and pending any such application may, at the like discretion, either be
employed in the business of the company or be invested in such
investments (other than shares in the company) as the directors may from
time to time think fit. The directors may also without placing the same
to reserve carry forward any profits which they may think prudent not to
divide.
Profit available for distribution.
101A. The Founder shall procure that the profits of the Company available for
distribution after making such provisions and transfer to reserves as
shall be required to meet expenses or anticipated expenses of the
construction. operation, upgrading, expansion or maintenance of the
wafer fabrication facility including also such amounts as may be
required for the servicing of the Company's debts and all relevant taxes
and other statutory expenses, hall thereafter be distributed annually by
way of dividend in full except to the extent as otherwise agreed from
time to time by the shareholders.
Dividend pay equally.
102. Subject to the rights of persons, if any, entitled to shares with
special rights as to dividend, all dividends shall be declared and paid
according to the amounts paid or credited as paid on the shares in
respect whereof the dividend is paid, but no amount paid or credited as
paid on a share in advance of calls shall be treated for the purposes of
this regulation as paid on the shares. All dividends shall be
apportioned and paid proportionately to the amounts paid or credited as
paid on the shares during any portion or portions of the period in
respect of which the dividend is paid; but if any share is issued on
terms providing that it shall rank for dividend as from a particular
date that share shall rank for dividend accordingly.
Debits may be deducted.
103. The director may deduct from any dividend payable to any member all sums
of money, if any, presently payable by him to the company on account of
calls or otherwise in relation to the shares of the company.
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Dividend specie.
104. Any general meeting declaring a dividend or bonus may direct payment of
such dividend or bonus wholly or partly by the distribution of specific
assets and in particular of paid-up shares, debentures or debentures
stock of any other company or in any one or more of such ways and the
directors shall give effect to such resolution, and where ally
difficulty arises in regard to such distribution, the directors may
settle the same as they think expedient, and fix the value for
distribution of such specific assets or any part thereof and may
determine that cash payments shall be made to any members upon the
footing of the value so fixed in order to adjust the rights of all
parties and may vest any such specific assets in trustees as may seem
expedient to the directors.
Payment by post and discharge.
105. Any dividend, interest, or other money payable in cash in respect of
shares may be paid by cheque or warrant sent through the post direct to
the registered address of the holder or, in the case of joint holders,
to the registered address of that one of the joint holders who is first
named on the register of members or to such person and to such address
as the holder or joint holders may in writing direct. Every such cheque
or warrant shall be made payable to the order of the person to whom it
is sent. Any one or two or more joint holders may give effectual
receipts for any dividends, bonuses, or other money payable in respect
of the shares held by them as joint holders.
CAPITALIZATION OF PROFITS
Powers to capitalize.
106. The company in general meeting may upon the recommendation of the
directors resolve that it is desirable to capitalize any part of the
amount for the time being standing to the credit of any of the company's
reserve accounts or to the credit of the profit and loss account or
otherwise available for distribution, and accordingly that such sum be
set free for distribution amongst the members who would have been
entitled thereto if distributed by way of dividend and in the same
proportions on conditions that the same be not paid in cash but be
applied either in or towards paying up any amounts for the time being
unpaid on any shares held by such members respectively or paying up in
full unissued shares or debentures of the company to be allotted and
distributed, credited as fully paid up to and amongst such members in
the proportion aforesaid, or partly in the one way and partly in the
other, and the directors shall give effect to such resolution. A share
premium account and a capital redemption reserve may for the purposes of
this regulation, be applied only in the paying up of unissued shares to
be issued to members of the company as fully paid bonus shares.
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Effect of resolution to capitalise.
107. Whenever such a resolution as aforesaid shall have been passed the
directors shall make all appropriations and applications of the
undivided profits resolved to be capitalised thereby, and all allotments
and issues of fully paid shares or debentures, if any, and generally
shall do all acts and things required to give effect thereto, with full
power to the directors to make such provision by the issue of fractional
certificates or by payment in cash or otherwise as they think fit for
the case of shares or debentures becoming distributable in fractions,
and also to authorise any person to enter on behalf of all the members
entitled thereto into an agreement with the company providing for the
allotment to them respectively, credited as fully paid up, of any
further shares or debentures to which they may be entitled upon such
capitalisation, or (as the case may require) for the payment up by the
company on their behalf, by the application thereto of their respective
proportions of the profits resolved to be capitalised, of the amounts or
any part of the amounts remaining unpaid on their existing shares, and
any agreement made under authority shall be effective and binding on all
such members.
NOTICES
How notices to be served to members.
108. Any notice or communication required or permitted to be given to the
shareholders must be in writing and shall be deemed to have been duly
given and received:-
- on the date of service, if served personally or sent by telex or
facsimile transmission to the Founders or any other shareholders
to whom notice is to be given and when the telex or facsimile
transmission acknowledgement or answerback in respect of such
despatch is duly received by the sender of the telex or telefax
despatch; or
- on the sixth (6th) day after mailing, if mailed by first class
registered or certified mail if mailed nationally or by
registered airmail if mailed internationally, postage prepaid; or
- on the next day if sent by a nationally recognised courier for
next day service and so addressed and if there is evidence of
acceptance by receipt; or
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- on the third (3rd) day after mailing, if sent by an
internationally recognised courier for expedited service and so
addressed and if there is evidence acceptance of receipt. The
address for service of each party is in the case of a company,
its registered office and in the case of an individual, his
address for service previously notified to the Company. If the
address of any party differs from its or his address as specified
in the Register of Members, then an additional copy of any
written notice or communication shall be sent to the address of
the respective party as specified in the Register of Members
maintained by the Company.
Notice to joint holders.
109. A notice may be given by the company to the joint holders of a share by
giving the notice to the joint holder first named in the register of
members in respect of the share.
Notice to persons entitled by transmission.
110. A notice may be given by the company to the persons entitled to a share
in consequence of the death or bankruptcy of a member by sending it
through the post in a prepaid letter addressed to them by name, or by
the title of representatives of the deceased, or assignee of the
bankrupt, or by any like description, at the address, if any within
Malaysia supplied for the purpose by the persons claiming to be so
entitled, or (until such an address has been so supplied) by giving the
notice in any manner in which the same might have been given if the
death or bankruptcy had not occurred.
Persons entitled to notice.
111. (1) Notice of every general meeting shall be given in any manner herein
before authorised to:-
(a) every member;
(b) every person entitled to a share in consequence of the death or
bankruptcy of a member who, but for his death or bankruptcy,
would be entitled to receive notice of the meeting,
(c) the auditor for the time being of the company.
(2) No other person shall be entitled to receive notices of general
meetings.
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WINDING UP
Distribution of assets in specie.
112. If the company is wound up the liquidator may, with the sanction of a
special resolution of the company divide amongst the members in kind the
whole or any part of the assets of the company (whether they consist of
property of the same kind or not) and may for that purpose set such
value as he deems fair upon any property to be divided as aforesaid and
may determine how the division shall be carried out as between the
members or different classes of members. The liquidator may, with the
like sanction, vest the whole or any part of any such assets in trustees
upon trusts for the benefit of the contributories as the liquidator,
with the like sanction, thinks fit, but so that no member shall be
compelled to accept any shares or other securities whereon there is any
liability.
INDEMNITY
Indemnity.
113. Every director, managing director, agent, auditor, secretary and other
officer for the time being of the company shall be indemnified out of
the assets of the company against any liability incurred by him in
defending any proceedings, whether civil or criminal, in which judgement
is given in his favour or in which he is acquitted or in connection with
any application under the Act in which relief is granted to him by the
Court in respect of any negligence, default breach of duty or breach of
trust.
EMPLOYEES' SHARE OPTION SCHEME
ESOS.
114. The Employees' Share Option Scheme to be referred to as ESOS with a view
to giving to the employees/senior executives of the Company upon whom
the success of the Company will inter alia depend, a direct interest in
the growth of the Company in the hope of ensuring the continuation of
such growth. Under the ESOS, the employees/senior executives of the
Company, including directors of the Company who are full time executives
as well as being long serving employees of the Company will be granted
an option to subscribe for such number of ordinary shares in the Company
and at such price as shall be determined by the Board. In the event of
the implementation of the ESOS, each Shareholder shall reduce their
shareholding in the Company on a proportionate basis. The full terms and
conditions of the ESOS shall be decided by the Board.
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We, the several persons whose names and addresses are subscribed hereunder being
subscribers hereby agree to the foregoing Articles of Association.
- - --------------------------------------------------------------------------------
Names, Addresses and Descriptions of Subscribers
- - --------------------------------------------------------------------------------
ABDUL RAHMAN BIN HAJI SIRAJ Signed
I/C NO. 590326-01-5257
No. 258, Jalan 7
Taman Sekamat
43000 Kajang
Selangor Darul Ehsan
General Manager (Investment)
Khazanah Nasional Berhad
MOHAMAD SALEH BIN MOHD GHAZALI Signed
I/C NO. 0883538 (B)
No. 55, Jalan SS 22/27A
47400 Damansara Jaya
Selangor Darul Ehsan
Executive Director
Bank Industri Malaysia Berhad
- - --------------------------------------------------------------------------------
Dated this 18th day of November 1995
Witness to the above signatures:-
Signed
------------------------------
HASMAH RAZALI (MAICSA 0772752)
Company Secretary
17th, Bangunan Bank Industri
Jalan Sultan Ismail
50250 Kuala Lumpur
Lodged by: Hasmah Razali (MAICSA 0772752)
Address: 17th, Bangunan Bank Industri
Jalan Sultan Ismail
50250 Kuala Lumpur
Tel No.: 03-2929088
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WAFER PURCHASE AGREEMENT
This Wafer Purchase Agreement (the "Agreement") is entered into with effect on
September 8, 1999, ("Effective Date") by and between Wafer Technology (Malaysia)
Sdn. Bhd. ("WTM"), a Malaysian corporation having its registered office at Level
28, Bangunan Bank Industri, Bandar Wawasan, No. 1016, Jalan Sultan Ismail, 50250
Kuala Lumpur, Malaysia and LSI Logic Corporation ("LSI"), a Delaware corporation
having its principal place of business at 1551 McCarthy Blvd., Milpitas,
California 95035-7424.
RECITALS
A. WHEREAS, WTM and LSI have entered into a Technology Transfer Agreement,
signed by the parties authorized representatives on September 8, 1999
(the "TTA"), which provides, in part, for the manufacture, supply and
purchase of semiconductor wafers by the parties to the TTA;
B. WHEREAS, the TTA provides, pursuant to Section 3.8 therein, that LSI
will produce and supply Wafers to WTM and that the parties will enter
into a separate written agreement, the WTM Purchase Agreement, which
will specify the terms and conditions applicable to transactions
contemplated by said Section 3.8;
C. WHEREAS, the TTA provides, pursuant to Section 3.11 therein, that LSI
will purchase certain quantities of Wafers from WTM, subject to certain
conditions set forth in said Section 3.11, and that the parties will
enter into a separate written agreement, the Wafer Purchase Agreement,
applicable to transactions contemplated by said Section 3.11;
D. WHEREAS, it is recognized that each party may be a purchaser of Wafers
from the other party and a seller of Wafers to the other party; and
E. WHEREAS, this Agreement is intended to set forth the terms and
conditions contemplated by said Section 3.8 with respect to the WTM
Purchase Agreement and Section 3.11 with respect to the Wafer Purchase
Agreement and to govern transactions between the parties hereto with
respect to the manufacture, purchase and sale of Wafers;
NOW THEREFORE, in consideration of the above recitals, and the mutual
undertakings contained herein, the parties agree as follows:
1.0 DEFINITIONS
The following terms shall have the meanings set forth below. Any other
capitalized terms that are not defined herein shall have the meanings
set forth in the TTA, if defined therein.
1.1 "Affiliate" of a party shall mean an entity controlling, controlled
by, or under common control with, such party, such control being
exercised through the ownership or control, directly or indirectly, of
50% or more of the voting power of the shares entitled to vote for the
election of directors or other governing authority, as of the Effective
Date or thereafter during the term of this Agreement, provided that such
entity shall be considered an Affiliate only for the time during which
such ownership or control exists.
1.2 "Buyer" shall mean a party hereto, including an Affiliate of such
party, in its capacity as a purchaser of Wafers from the other party
hereto, including an Affiliate of such party.
1.3 "Seller" shall mean a party hereto, including an Affiliate of such
party, in its capacity as a seller of Wafers to the other party hereto,
including an Affiliate of such party.
1.4 "Wafer" shall have the meaning given to it in the TTA.
1.5 "Wafer Specification" shall mean the specification for an individual
Wafer as embodied in the GDSII tape, as provided by Buyer and accepted
by Seller from time to time for the manufacture of the Wafers.
2.0 SCOPE
The parties' mutual intentions under Section 3.8 and Section 3.11 of the
TTA to enter into further agreements with respect to the purchase and
sale of Wafers are completely fulfilled by this Agreement. This
Agreement is intended to serve as the WTM Purchase Agreement, as
provided for under Section 3.8 and the Wafer Purchase Agreement, as
provided for under Section 3.11. Except as otherwise provided herein,
the parties intend that the terms and conditions applicable to their
transactions in the purchase and sale of Wafers in the capacity as a
Buyer will be identical and in the capacity as a Seller will be
identical.
3.0 PURCHASE AND SALE OF WAFERS
3.1 This Agreement serves as the master overriding agreement for the
purchase and sale of Wafers between the Parties hereto. The specific
Wafers to be fabricated, purchased and sold will the subject of future
individual agreement(s), which will be entered into as provided herein.
Set forth at Exhibit 3.1 is the description of the order fulfillment
process in flow chart form. All purchase orders issued by Buyer shall
reference this Agreement.
3.2 Seller will provide Buyer with the opportunity to conduct on-site
qualification and quality audits of Seller's manufacturing facility
where Wafers are produced under this Agreement. In addition, for
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<PAGE> 83
customers of Buyer (including prospective customers) that demonstrate
demand for quantities of Wafers greater than 200 Wafers per week on a
sustained basis, Seller will allow such customers to tour Seller's
manufacturing facility, conduct on-site qualification and audit the
quality of Seller's manufacturing facility, provided that such customers
execute a confidentiality agreement at least as protective of Seller's
Confidential Information as the provisions set forth in Section 12.
Buyer will use its best efforts to limit the frequency of times such
access is required, including by providing the results of its audit to
its customers.
3.3 Capacity.
(a) [REDACTED]
(b) [REDACTED]
(c) [REDACTED]
3.4 Loading.
(a) [REDACTED]
(b) [REDACTED]
119
<PAGE> 84
3.5 Qualification of the Malaysian Fab - Timing
[REDACTED]
4.0 FORECASTING, ORDER ENTRY AND RESCHEDULING
4.1 [REDACTED]
4.2 [REDACTED]
4.3 [REDACTED]
4.4 [REDACTED]
5.0 WAFER QUALIFICATION
5.1 [REDACTED]
5.2 [REDACTED]
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<PAGE> 85
5.3 [REDACTED]
6.0 PRICING, INVOICING, PAYMENT AND TAXES
6.1 [REDACTED]
6.2 [REDACTED]
6.3 [REDACTED]
6.4 [REDACTED]
6.5 [REDACTED]
6.6 [REDACTED]
7.0 DELIVERY
7.1 Seller shall make reasonable and diligent effort to deliver
Wafers on the delivery dates specified in the relevant purchase
order. Seller shall not ship Wafers to Buyer prior to the specified
delivery dates without the prior written consent of Buyer. All
shipments shall be within [REDACTED] or one Wafer of the quantity
ordered, whichever is greater.
7.2 Provided that the delivery dates requested are within the estimated
lead times and have been accepted by Seller, Seller, will promptly
notify Buyer in the event it anticipates it will ship Wafers more
than [REDACTED] later than the original delivery date or mutually
agreed modified date. In such case, Seller will make reasonable
efforts to expedite manufacturing at no additional charge to Buyer.
In the event that delivery would be delayed more than [REDACTED]
beyond the original delivery date or mutually agreed modified date,
then Buyer may cancel the delivery of such Wafers without
liability.
7.3 Wafers shall be suitably packed for shipment in standard containers
mutually acceptable to the parties marked for shipment to Buyer or
its subcontractor at the address specified in Buyer's purchase
order and delivered to the carrier or forwarding agent specified by
Buyer reasonably prior to shipment. Should Buyer fail to designate
a carrier or forwarding agent or type of conveyance, Seller is
hereby authorized to make such designation for Buyer's account in
conformance with Seller's standard shipping practices. Shipment
will be F.O.B. shipping point, at which time risk of loss and title
shall pass to Buyer.
8.0 INSPECTION AND ACCEPTANCE
8.1 The Parties will agree on acceptance criteria, including without
limitation electrical and visual test parameters and other
inspection criteria, manufacturing quality and reliability criteria
for Wafers as the Parties deem appropriate, using the guidelines
set forth in Exhibit 8.1.
8.2 Seller will manufacture Wafers to the agreed upon acceptance
criteria, will perform a visual inspection, electrical testing and
other testing as agreed and will supply test data to Buyer with the
Wafers.
8.3 Buyer will promptly inspect all Wafers and related test data and
promptly notify Seller of the results. Buyer may reject any Wafer
that fails to conform to mutually agreed upon Product
Specifications and acceptance criteria by giving Seller
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<PAGE> 86
written notice that specifies in reasonable detail the reasons for
rejection within [REDACTED] of delivery. Wafers delivered to Buyer shall
be deemed accepted if Buyer has not properly rejected such Wafers by
giving written notice thereof to Seller within such [REDACTED] period.
8.4 Any Wafer properly rejected by Buyer will be returned to Seller at
Seller's expense, within [REDACTED] of the notification of rejection.
Before returning any Wafer to Seller, Buyer shall contact Seller and
request a return authorization (RMA) and appropriate instructions.
Seller shall credit Buyer's account for the purchase price of properly
rejected Wafers.
9.0 MANAGEMENT REVIEW MEETINGS
Upon execution of this Agreement, LSI and WTM shall each designate a
person to be the principle point of contact for technical and business
communications. LSI and WTM technical and business management
representatives shall meet periodically, but no less frequently than
quarterly, at times and places mutually agreed to by the parties to
review the status of the activities and capacity availability under this
Agreement, and to resolve any issues.
10.0 LIMITED WARRANTY
10.1 [REDACTED]
10.2 This Limited Warranty does not apply to Wafers which have been
repaired or altered other than by Seller, or which shall have been
subjected to misuse, negligence or accident or which have been subjected
to improper testing, storage or handling. EXCEPT FOR THE LIMITED
WARRANTY STATED IN SECTION 10.1 ABOVE, ALL WARRANTIES, EXPRESS,
STATUTORY OR IMPLIED, WITH RESPECT TO ANY WAFER, PRODUCT OR OTHER ITEMS
OR SERVICES DELIVERED OR PROVIDED, INCLUDING THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY
DISCLAIMED. THE REMEDIES SET FORTH IN THIS SECTION 10.0 ARE EXCLUSIVE.
NO COURSE OF DEALING SHALL BE DEEMED A WARRANTY.
11.0 INDEMNIFICATION
11.1 [REDACTED]
11.2 [REDACTED]
11.3 [REDACTED]
11.4 [REDACTED]
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<PAGE> 87
12.0 CONFIDENTIALITY
12.1 The parties anticipate disclosures of their respective confidential
and proprietary information pursuant to transactions covered hereby.
Such information is referred to herein as the "Confidential
Information."
12.2 Each party may disclose to the other Confidential Information
either orally or in writing (including graphic material) by
demonstration or other means. When disclosed in writing, the information
shall be marked "CONFIDENTIAL", "PROPRIETARY" or a similar legend. When
disclosed orally, or in any other intangible manner, such information
shall be identified as confidential at the time of disclosure and either
identified in a prior written communication as confidential or followed
with subsequent written confirmation, within thirty (30) days. All
information reduced to writing by the receiving party, as a result of
such confirmed disclosures by the disclosing party, shall be clearly
labeled as "CONFIDENTIAL."
12.3 Neither party will disclose the Confidential Information of the
other party to any third party; provided, however, that a party may
disclose Confidential Information to its Affiliates who are bound by a
written agreement at least as protective of the disclosing party's
Confidential Information as the provisions of this Section 12. In its
capacity as Buyer hereunder, a party may disclose such Confidential
Information to its prospects and customers as is permitted under the
Technology Transfer Agreement in connection with the design of products
to be sold to customers of Buyer, provided the customer is bound by a
written agreement to protect the confidentiality thereof. Each party
shall exercise the same degree of care it normally accords its own
Confidential Information, but in no event less than reasonable care, to
protect the Confidential Information of the other party. The receiving
party shall restrict circulation of Confidential Information to
employees within its own organization on a need to know basis. Each
party warrants that any employee who may have access to any Confidential
Information is subject to a written agreement that prevents disclosure
and unauthorized use of the Confidential Information. Each party
warrants that the Confidential Information of the other party shall be
used solely in connection with performance of this Agreement. Any
Confidential Information supplied by either party shall remain the
property of the disclosing party and nothing in this Agreement shall
restrict the disclosing party from using, disclosing or disseminating
its own Confidential Information in any way.
12.4 Notwithstanding the foregoing Sections 12.1, 12.2 and 12.3,
Confidential Information shall exclude information that the receiving
party can demonstrate: (i) was independently developed by the receiving
party without any use of the disclosing party's Confidential Information
or by the receiving party's employees or other agents (or independent
contractors hired by the receiving party) who have not been exposed to
the disclosing party's Confidential Information; (ii) becomes known to
the receiving party, without restriction, from a source other than the
disclosing party, which source had no duty of confidentiality to the
disclosing party; (iii) was in the public domain at the time it was
disclosed or becomes in the public domain through no act or omission of
the receiving party; (iv) was rightfully known to the receiving party,
without restriction, at the time of disclosure; (v) was disclosed with a
prior written consent of the disclosing party to the receiving party's
disclosure; or (vi) in the case of LSI as the receiving party, WTM
Process Technology as to which a separate written agreement of
confidentiality has not been entered into between the parties prior to
the time such information is received by LSI.
12.5 If a receiving party believes that it will be compelled by a court
or other authority to disclose Confidential Information of the
disclosing party, it shall give the disclosing party prompt written
notice so that the disclosing party may take steps to oppose such
disclosure.
12.6 The parties agree that, while the identities of customers are
Confidential Information to each of the parties, the parties may have
customers in common. The parties agree that neither of them shall use
any information received under this Agreement for the purpose of
contacting a customer of the other for a particular opportunity or
similar product being provided by the other to such customer.
13.0 TERM AND TERMINATION
13.1 This Agreement shall be effective as of the Effective Date and
shall remain in full force and effect until the fifth anniversary of the
Effective Date, unless terminated earlier by one or both of the parties
pursuant to this Agreement. Unless the parties agree otherwise, this
Agreement automatically will terminate within such five (5) year period
on the later of: (i) the last to expire of the time periods provided by
Sections 3.3 and 3.4 or (ii) ninety (90) days following the completion
of the
123
<PAGE> 88
parties' respective obligations pursuant to all orders placed by one
party on the other hereunder. In addition, unless the Parties agree
otherwise, the provisions of this Agreement shall automatically be
deemed to apply to transactions in the purchase and sale of Wafers of
the type hereby contemplated in which the Parties may engage with
comparable regularity following the expiration of such five (5) year
period.
13.2 If either party breaches any material provision of this Agreement
and fails to cure such breach within thirty (30) days after receipt of
written notice from the other party, such other party shall have the
right at its option to: a) suspend performance or payment, in whole or
in part, until such breach is cured; b) terminate the Agreement or
purchase orders placed under the Agreement, in whole or in part; or c)
employ a combination of a) and b).
13.3 Should either party become insolvent or make an assignment for the
benefit of creditors or file or have filed against it a petition in
bankruptcy or seeking reorganization, have a receiver appointed; or
institute proceedings for liquidation or winding up then the other party
may, in addition to other rights and remedies it may have, terminate the
Agreement or any purchase orders placed under the Agreement immediately
by written notice.
13.4 In the event of termination of this Agreement due to a breach by
Buyer, Buyer shall be liable for finished Wafers and for WIP and unique
raw materials that were reasonably acquired by Seller to perform its
obligations under this Agreement. In the event of termination due to
Seller's breach, including for insolvency, at Buyer's election, Buyer
shall either require Seller to finish any or all outstanding orders for
Wafers accepted prior to the date of termination or terminate any and
all outstanding orders, at no cost or liability to Buyer. In the event
of any expiration or termination of this Agreement, each party shall
return all Confidential Information and copies thereof (or certify to
their destruction) to the other.
13.5 Upon the termination or expiration of this Agreement for any
reason, the parties rights and obligations under Sections 1, 10, 11, 12,
13, 14 and 15 and all payment obligations that have accrued prior to
termination or expiration, shall survive according to their terms.
13.6 In the event either party (the "Terminating Party") terminates the
TTA upon the occurrence of an Event of Default by the other party, the
Terminating Party shall have the right to also terminate this Agreement
by including in its notice terminating the TTA notice of its termination
of this Agreement.
14.0 LIMITATION OF LIABILITY
[REDACTED]
15.0 GENERAL PROVISIONS
15.1 Assignment. Neither party may assign or otherwise transfer this
Agreement or any right or obligation hereunder without the other party's
prior written consent other than to a successor in ownership of all or
substantially all of the assets of the assigning party, which successor
expressly assumes in writing the assignor's obligations hereunder.
15.2 NOTICES. ALL NOTICES AND CORRESPONDENCE REQUIRED UNDER THIS
AGREEMENT SHALL BE IN WRITING, SHALL BE EFFECTIVE ON RECEIPT, AND SHALL
BE SENT TO THE FOLLOWING ADDRESSES, WHICH MAY BE CHANGED BY NOTICE SO
GIVEN:
For WTM For LSI
------- -------
Wafer Technology (Malaysia) Sdn. Bhd. LSI Logic Corporation
Level 28 1551 McCarthy Blvd., D-106
Bangunan Bank Industri Milpitas, California 95035-7424
Bandar Wawasan, No 1016
Jalan Sultan Ismail Attn: General Counsel
50250 Kuala Lumpur Fax: (408) 433-6896
Attn: President
Fax: 60 4 403 1675
124
<PAGE> 89
15.3 GOVERNING LAW. THE LAWS OF THE STATE OF CALIFORNIA, U.S.A.,
EXCLUDING ITS CHOICE OF LAW PROVISIONS, SHALL GOVERN ANY CLAIM ARISING
UNDER OR RELATING TO THIS AGREEMENT.
15.4 EXPORT CONTROL. NEITHER PARTY NOR ITS AFFILIATES WILL EXPORT,
DIRECTLY OR INDIRECTLY, ANY TECHNICAL DATA, PROCESS, PRODUCT, OR SERVICE
DERIVED FROM ANY CONTROLLED MATERIALS (AS DEFINED BY US EXPORT CONTROL
LAWS) PROVIDED BY ONE PARTY TO THE OTHER HEREUNDER HEREUNDER, TO ANY
COUNTRY FOR WHICH THE UNITED STATES GOVERNMENT OR THE GOVERNMENT OF
MALAYSIA (OR THE AGENCIES OF EITHER) REQUIRES AN EXPORT LICENSE OR OTHER
GOVERNMENTAL APPROVAL WITHOUT FIRST OBTAINING SUCH LICENSE OR APPROVAL.
15.5 Force Majeure. In the event that either party is prevented from
performing or unable to perform any of its obligations under this
Agreement, except an obligation to pay money, due to any act of God,
fire, casualty, flood, earthquake, war, strike, lockout, epidemic, riot,
insurrection, or any other similar cause beyond the reasonable control
of the party invoking this section (a "Force Majeure") and if such party
shall have used its best efforts to mitigate the effects of such Force
Majeure, such party shall give prompt written notice to the other party,
its nonperformance shall be excused, and the time for the performance
shall be extended for the period of delay or inability to perform due to
such occurrences. Notwithstanding the foregoing, if such party is not
able to perform within ninety (90) days after the event giving rise to
the excuse of Force Majeure, such non-performance shall no longer be
excused and the other party shall be entitled to terminate any
outstanding purchase orders without further liability and/or terminate
this Agreement, except such obligations as are expressly agreed to
survive such termination and except for the liability to pay money, for
which the rights thereto were earned prior to such termination.
15.6 NO AGENCY. LSI AND WTM ARE INDEPENDENT CONTRACTORS. NO AGENCY,
PARTNERSHIP, JOINT VENTURE, OR EMPLOYMENT IS CREATED BETWEEN LSI AND WTM
AS A RESULT OF THIS AGREEMENT. NEITHER PARTY MAY CREATE ANY OBLIGATION,
EXPRESS OR IMPLIED, ON BEHALF OF THE OTHER PARTY.
15.7 PUBLICITY. EXCEPT AS REQUIRED BY LAW OR REGULATION OR EXPRESSLY
PERMITTED HEREIN, NEITHER PARTY SHALL DISCLOSE THE TERMS OF THIS
AGREEMENT NOR MAKE ANY PUBLIC ANNOUNCEMENTS CONCERNING THIS AGREEMENT
WITHOUT THE PRIOR WRITTEN CONSENT OF THE OTHER PARTY. EACH PARTY MAY
ADVISE ITS CUSTOMERS OR POTENTIAL CUSTOMERS OF THE GENERAL NATURE OF
THIS AGREEMENT WITHOUT OBTAINING PRIOR WRITTEN CONSENT, IN CONNECTION
WITH ITS MARKETING OF PRODUCTS OR PROPOSED PRODUCTS.
15.8 MERGER, MODIFICATION AND WAIVER. THIS AGREEMENT AND ITS EXHIBITS
REFERENCED HEREIN CONSTITUTE THE ENTIRE AGREEMENT BETWEEN THE PARTIES
WITH RESPECT TO THE SUBJECT MATTER HEREOF AND MERGE ALL PRIOR AGREEMENTS
AND NEGOTIATIONS, AND MAY ONLY BE MODIFIED IN WRITING BY AUTHORIZED
REPRESENTATIVES OF BOTH PARTIES. NO WAIVER OF ANY BREACH HEREOF SHALL BE
HELD TO BE A WAIVER OF ANY OTHER OR SUBSEQUENT BREACH.
15.9 Severability. In case any one or more of the provisions contained
in this Agreement shall be held invalid, illegal or unenforceable in any
respect, the validity, legality or enforceability of the remaining
provision contained herein shall not in any way be affected or impaired
thereby.
15.10 Counterparts. This Agreement may be executed in one or more
counterparts, each in the English language and each of which shall be
deemed to be an original instrument, and all such counterparts shall
together constitute the same agreement.
[Signature Page Follows]
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<PAGE> 90
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day first written above.
Wafer Technology (Malaysia) Sdn. Bhd. LSI Logic Corporation
By: /s/ Cyril F. Hannon By: /s/ Joseph M. Zelayeta
-------------------------------- --------------------------------
Name: Cyril F. Hannon Name: Joseph M. Zelayeta
-------------------------------- --------------------------------
Title: President & CEO Title: Executive Vice President
-------------------------------- --------------------------------
Date: September 8, 1999 Date: September 8, 1999
-------------------------------- --------------------------------
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<PAGE> 91
LIST OF EXHIBITS
Exhibit 3.1 WTM / LSI Order Fulfillment Process [REDACTED]
Exhibit 3.3 Volume Adjustments [REDACTED]
Exhibit 4.1 Standard Lead Times [REDACTED]
Exhibit 5.2 Wafer Qualification Plan [REDACTED]
Exhibit 5.3 Mask Set Pricing [REDACTED]
Exhibit 6.5 Wafer Pricing [REDACTED]
Exhibit 6.6 Cancellation Charges [REDACTED]
Exhibit 8.1 Wafer Acceptance Guidelines [REDACTED]
127
<TABLE> <S> <C>
<ARTICLE> 5
<MULTIPLIER> 1,000
<S> <C>
<PERIOD-TYPE> 9-MOS
<FISCAL-YEAR-END> DEC-31-1999
<PERIOD-START> JAN-01-1999
<PERIOD-END> SEP-30-1999
<CASH> 185,977
<SECURITIES> 271,010
<RECEIVABLES> 377,205
<ALLOWANCES> (7,451)
<INVENTORY> 217,489
<CURRENT-ASSETS> 1,151,953
<PP&E> 2,310,306
<DEPRECIATION> (1,013,126)
<TOTAL-ASSETS> 2,975,302
<CURRENT-LIABILITIES> 531,634
<BONDS> 0
0
0
<COMMON> 1,473
<OTHER-SE> 1,625,127
<TOTAL-LIABILITY-AND-EQUITY> 2,975,302
<SALES> 1,504,588
<TOTAL-REVENUES> 1,504,588
<CGS> 942,074
<TOTAL-COSTS> 942,074
<OTHER-EXPENSES> 451,926
<LOSS-PROVISION> 0
<INTEREST-EXPENSE> (29,604)
<INCOME-PRETAX> 92,185
<INCOME-TAX> 26,420
<INCOME-CONTINUING> 65,765
<DISCONTINUED> 0
<EXTRAORDINARY> 0
<CHANGES> (91,774)
<NET-INCOME> (26,009)
<EPS-BASIC> (0.18)
<EPS-DILUTED> (0.17)
</TABLE>
