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EXHIBIT 2.1
WAFERTECH, LLC
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of November 15, 2000 by
and between Altera Corporation, a Delaware corporation ("Altera"), and TSMC
Development, Inc., a Delaware corporation ("TSMC").
WHEREAS, Altera and TSMC are members of WaferTech, LLC, a Delaware limited
liability company (the "Company" or "WaferTech"), and parties to the Second
Amended and Restated Limited Liability Company Agreement of WaferTech, LLC dated
as of October 28, 1997, as amended in November 1998 and January 1999 (the "LLC
Agreement");
WHEREAS, Altera proposes to transfer to TSMC 100% of its Membership
Interest in the Company, corresponding to 58,397,399 Preferred Shares (the
"Interest");
WHEREAS, the Preferred Members have unanimously consented to the transfer
of the Interest by Altera to TSMC pursuant to a Unanimous Written Consent dated
the same date hereof (Attachment A);
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follow:
1. Capitalized Terms
Capitalized terms not otherwise defined in this Agreement have the meanings
assigned to them in the LLC Agreement.
2. Assignment and Assumption
In consideration of the payment of the purchase price in the amount of US$
350,384,394 (the "Purchase Price") by TSMC as provided herein, Altera hereby
irrevocably assigns, transfers and conveys to TSMC all right, title and interest
in and to, and all benefits and burdens of the ownership of, the Interest.
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3. Payment
TSMC shall pay the Purchase Price to Altera by the transfer of immediately
available funds denominated in U.S. dollars for value before December 31, 2000
to the following account:
Account Title: Altera Corporation
Account Number: [*]
Bank Name: Bank of America, NT & SA
Bank Address: [*]
ABA Number: 121-000-358
SWIFT Address: BOFAUS6S
The assignment and assumption contemplated by Section 2 of this Agreement
shall become effective immediately upon receipt by Altera of the full amount of
the Purchase Price in the abovementioned account. Upon receipt of the Purchase
Price, Altera shall deliver to TSMC a written receipt therefore in the form of
Exhibit A attached hereto.
4. Altera's Representations and Warranties.
Altera hereby represents and warrants to TSMC that:
(i) Altera has the full right, power, and authority to execute this
Agreement and to sell the Interest to TSMC.
(ii) The Interest is owned by Altera free and clear of any and all
liens, encumbrances, charges, assessments and restrictions (other than
restrictions on transfer imposed by the LLC Agreement and restrictions on
transfer generally imposed on securities under Federal or state securities
laws).
(iii) Upon transfer of the Interest to TSMC pursuant to this
Agreement, TSMC will, as a result, receive good title to the Interest, free and
clear of any and all liens, encumbrances, claims, charges, assessments, and
restrictions (other than restrictions on transfer imposed by the LLC Agreement
and restrictions on transfer generally imposed on securities under Federal or
state securities laws).
(iv) All corporate action on the part of Altera, its directors and
stockholders necessary for the authorization, execution, delivery and
performance by Altera of this Agreement has been taken.
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[*] Redacted, subject to a confidential treatment request filed with the
Securities and Exchange Commission.
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(v) The execution, delivery and performance of and compliance with
this Agreement and the sale of the Interest hereunder will not result in any
violation of, or conflict with, or constitute a default under, Altera's charter
or bylaws or any of Altera's material agreements, or result in the creation of
any mortgage, pledge, lien, encumbrance or charge upon the Interest being
transferred.
(vi) No consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority on the part of Altera is
required in connection with the valid execution and delivery of this Agreement,
the sale of the Interest hereunder or the consummation of any other transaction
contemplated hereby.
(vii) (a) Altera has consulted its own independent tax advisors with
respect to the transactions contemplated by this Agreement to the extent it
deemed necessary and advisable; (b) Altera is not relying in any respect on
WaferTech or any Managing Member, employee or other agent or representative of
WaferTech to provide any advice with respect to the Federal, state, local or
foreign tax consequences of the transactions contemplated hereby; and (c) Altera
shall bear its own tax consequences, if any, associated with the transactions
contemplated hereby and shall not seek any reimbursement in connection with any
such tax consequences from TSMC, WaferTech or any of their affiliates.
5. TSMC's Representations and Warranties.
TSMC hereby represents and warrants to Altera that:
(i) TSMC has the full right, power, and authority to execute this
Agreement and to purchase the Interest from Altera.
(ii) TSMC is acquiring the Interest for its own account for
investment, and not with a view to distribution.
(iii) All corporate action on the part of TSMC, its directors and
stockholders necessary for the authorization, execution, delivery and
performance by TSMC of this Agreement has been taken.
(iv) The execution, delivery and performance of and compliance with
this Agreement and the sale of the Interest hereunder will not result in any
violation of, or conflict with, or constitute a default under, TSMC's charter or
bylaws or any of TSMC's material agreements.
(v) No consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority on the part of TSMC is
required in connection with the valid
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execution and delivery of this Agreement, the purchase of the Interest hereunder
or the consummation of any other transaction contemplated hereby.
(vi) (a) TSMC has consulted its own independent tax advisors with
respect to the transactions contemplated by this Agreement to the extent it
deemed necessary and advisable; (b) TSMC is not relying in any respect on
WaferTech or any Managing Member, employee or other agent or representative of
WaferTech to provide any advice with respect to the Federal, state, local or
foreign tax consequences of the transactions contemplated hereby; and (c) TSMC
shall bear its own tax consequences, if any, associated with the transactions
contemplated hereby and shall not seek any reimbursement in connection with any
such tax consequences from Altera, WaferTech or any of their affiliates.
(vii) (a) TSMC has such knowledge, skill and experience in business
and financial matters, and is capable of evaluating the merits and risks of
purchasing the Interest and the suitability thereof as an investment for TSMC;
(b) TSMC understands that the Interest has not been registered under applicable
U.S. Federal or state securities laws and that no public market now exists, or
may ever exist, for the Interest; and (c) TSMC is an institutional investor or
accredited investor meeting the standards of sophistication normally expected of
an investor in a transaction exempt from the registration provisions of the
United States Securities Act of 1933, as amended, under Section 4(2) thereof or
as defined in Regulation D promulgated thereunder, with respect to the purchase
of the Interest.
(viii) TSMC confirms herein that Analog Devices, Inc. and Integrated
Silicon Solution, Inc. are each transferring 100% of their interest to TSMC
under separate agreements and that the agreements are each identical regarding
the price per share, terms, conditions and format.
6. Indemnities.
TSMC shall indemnify and hold Altera harmless from and against, and shall
reimburse Altera for, any and all costs (including attorneys fees and expenses),
taxes, fines, penalties, damages, losses, claims, demands, liabilities,
obligations, expenses, actions and causes of action relating or due to claims to
which Altera may become subject relating to or as a result of its having been a
Member of WaferTech that relate to periods after consummation of the transfer
pursuant to Section 3 hereof.
7. Miscellaneous.
(a) Further Assurances. Each of the parties agrees to promptly
execute and deliver any and all further agreements, documents, or instruments
necessary to effectuate this Agreement and the transaction referred to herein or
reasonably requested by the other party to perfect or evidence its rights
hereunder.
(b) Survival. The representations, warranties and indemnities
contained in this Agreement shall survive the transfer of the Interest made
pursuant to this Agreement.
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(c) Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument, binding on the parties,
and the signature of any party to any counterpart shall be deemed a signature
to, and may be appended to, any other counterpart.
(d) Governing Law. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
(e) Expenses. Except as provided in Section 6, each party agrees to
pay its own expenses in connection with this Agreement and the transactions
contemplated hereby.
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IN WITNESS WHEREOF, the parties have executed this Agreement as of the date
set forth above.
Altera Corporation TSMC Development, Inc.
By: /s/ Nathan Sarkisian By: /s/ illegible
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Name Nathan Sarkisian Name
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Its Chief Financial Officer Its
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Exhibit A
RECEIPT
Altera Corporation ("Altera") hereby acknowledges receipt of the sum of
_________________ from TSMC Development, Inc. ("TSMC") constituting full payment
of the purchase price payable under the Assignment and Assumption Agreement
between Altera and TSMC dated November 15, 2000. Accordingly the transfer of the
Interest contemplated by the aforesaid Assignment and Assumption Agreement is
effective as of the date hereof.
IN WITNESS WHEREOF, this Receipt has been executed as of the date set forth
below.
Date: ________________ Altera Corporation
By:
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Name
------------------------------------
Its
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Attachment A
UNANIMOUS WRITTEN CONSENT AND AGREEMENT
OF THE PREFERRED MEMBERS OF
WAFERTECH, LLC
(A DELAWARE LIMITED LIABILITY COMPANY)
AND WAFERTECH, LLC
NOVEMBER 15, 2000
This Consent is executed on the date first written above by TSMC Development,
Inc., a Delaware corporation ("TSMC"), Altera Corporation, a Delaware
corporation ("Altera"), Analog Devices, Inc., a Massachusetts corporation
("ADI"), Integrated Silicon Solution Inc., a Delaware corporation ("ISSI"),
WaferTech, LLC ("WaferTech" or the "Company") and Third Party Investors as
defined in the Second Amended and Restated Limited Liability Company Agreement
of WaferTech dated as of October 28, 1997, as subsequently amended in November
1998 and January 1999, by and among TSMC, Altera, ADI and ISSI (the "LLC
Agreement").
WHEREAS, TSMC, Altera, ADI, ISSI and Third Party Investors are Members of
WaferTech.
WHEREAS, Altera, ADI and ISSI propose to transfer to TSMC 100% of their
Membership Interests in the Company and TSMC has agreed to purchase all such
Interests.
The undersigned, being all of the Preferred Members of the Company, and the
Company, hereby agree as follows:
1. Pursuant to the LLC Agreement, including but not limited to Sections 3.6.1
and 8.1.1 thereof, the undersigned Members hereby consent to the proposed
transfers of 100% of each of their Interests in the Company as described
above at the price of US$ 6 per share. The undersigned Members further
agree to waive all rights they have had or may have in connection with such
transfers under Section 8 of the LLC Agreement.
2. TSMC hereby consents to the continuation of the business of the Company
after consummation of the contemplated transfers of Interests.
3. The LLC Agreement, the Purchase Agreement dated as of June 25, 1996 by and
among TSMC, Altera, ADI and ISSI, the Registration Rights Agreement dated
as of June 25, 1996 by and among the Company and the undersigned Members,
as well as all agreements among the Company and the said parties relating
to the Company, shall terminate with respect to each Member upon
consummation of the transfers of such Member's Interests pursuant to the
Assignment and Assumption Agreements between TSMC and such Member. TSMC and
WaferTech confirm that they waive their rights under the non-competition
provisions of Section 2.10.1 of the LLC Agreement after termination of such
LLC Agreement.
4. TSMC and WaferTech represent that the proposed sale of Interests to TSMC
and the provisions of Section 3 of this Consent will not violate any terms
and conditions of any credit facility or other debt financings of
WaferTech. WaferTech represents that it has complied with its obligations
under such credit facilities or other debt financings.
5. Each party hereto hereby releases and forever discharges all other parties
from any and all liability for any costs (including attorneys fees and
expenses), taxes, fines, penalties, damages, losses claims, demands,
liabilities, obligations, expenses, actions and causes of action, in law or
in equity, known
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or unknown, which the parties had or may have relating to or arising from
the loss of WaferTech's partnership status as a result of the contemplated
transfers.
The terms not otherwise defined in this Consent shall have the meanings ascribed
to them in the LLC Agreement.
This Consent may be executed in any number of counterparts, each of which when
so executed and delivered shall be deemed an original, and such counterparts
shall together constitute one and the same instrument.
TSMC Development, Inc. WaferTech, LLC
By: /s/ illegible By: /s/ Steve Tso
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Name: Name: Stephen Tso
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Title: Title: President
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Altera Corporation
By: /s/ Nathan Sarkisian
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Name: Nathan Sarkisian
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Title: Chief Financial Officer
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Analog Devices, Inc.
By: /s/ Joseph E. McDonough
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Name: Joseph E. McDonough
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Title: Vice President
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Integrated Silicon Solutions Inc.
By: /s/ Jimmy Lee
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Name: Jimmy Lee
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Title: CEO/Chairman
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Third Party Investors
By: /s/ illegible
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Name:
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