<PAGE>
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
================================================================================
FORM 10-Q/A
(Amendment No. 1)
(MARK ONE)
[X] QUARTERLY REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES EXCHANGE
ACT OF 1934
FOR THE QUARTERLY PERIOD ENDED JUNE 30, 1996
OR
[_] TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(D) OF THE SECURITIES
EXCHANGE ACT OF 1934
FOR THE TRANSITION PERIOD FROM _____________ TO ______________
COMMISSION FILE NO. 0-27232
BENCHMARQ MICROELECTRONICS, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 74-2532442
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
17919 WATERVIEW PARKWAY
DALLAS, TEXAS 75252
(Address of principal executive offices) (Zip code)
(972) 437-9195
(Registrant's telephone number, including area code)
NOT APPLICABLE
(Former name, former address and former fiscal year, if changed since last
report.)
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 18, 1996, there were 6,698,506 shares of the registrant's common
stock outstanding.
<PAGE>
PART II. OTHER INFORMATION
ITEM 6. EXHIBITS AND REPORTS ON FORM 8-K
(a) Exhibits
--------
The exhibits filed as a part of this report are listed below.
Exhibit No. Description
----------- -------------------------------------------------
10.1 Option Agreement between Taiwan Semiconductor
Manufacturing Co., Ltd. and BENCHMARQ
Microelectronics Inc., dated as of May 31, 1996
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY THE
COMPANY FOR PORTIONS OF THIS AGREEMENT.)
10.2 Wafer Production Agreement between Taiwan
Semiconductor Co., Ltd. and BENCHMARQ
Microelectronics Inc. dated as of July 30, 1996
(CONFIDENTIAL TREATMENT HAS BEEN REQUESTED BY THE
COMPANY FOR PORTIONS OF THIS AGREEMENT.)
11 Statement Regarding Computation of Per Share
Earnings
27 Financial Data Schedule
(b) Reports on Form 8-K
-------------------
No reports on Form 8-K were filed during the quarter ended June 30,
1996.
2
<PAGE>
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.
BENCHMARQ MICROELECTRONICS, INC.
NOVEMBER 21, 1996 /S/ DERRELL C. COKER
------------------------------------------
DERRELL C. COKER
PRESIDENT AND
CHIEF EXECUTIVE OFFICER
NOVEMBER 21, 1996 /S/ REGINALD B. MCHONE
------------------------------------------
REGINALD B. MCHONE
VICE PRESIDENT, FINANCE AND
ADMINISTRATION, CHIEF FINANCIAL
OFFICER AND SECRETARY (PRINCIPAL
FINANCIAL AND ACCOUNTING OFFICER)
3
<PAGE>
EXHIBIT 10.1
OPTION AGREEMENT
BETWEEN
TAIWAN SEMICONDUCTOR MANUFACTURING CO., LTD.
AND
BENCHMARQ MICROELECTRONICS, INC.
MAY 31, 1996
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS.............................................................. 3
2. VOLUME COMMITMENT........................................................ 4
3. WAFER PRICE.............................................................. 5
4. OTHER PURCHASE TERMS AND CONDITIONS...................................... 5
5. OBLIGATION TO PAY OPTION FEE FOR OPTION CAPACITY......................... 5
6. FAILURE TO PURCHASE THE OPTION CAPACITY;................................. 6
7. TERM AND TERMINATION..................................................... 7
8. BOARD APPROVAL........................................................... 8
9. LIMITATION OF LIABILITY.................................................. 8
10. NOTICE.................................................................. 8
11. ENTIRE AGREEMENT........................................................ 9
12. GOVERNING LAW........................................................... 9
13. ARBITRATION............................................................. 9
14. ASSIGNMENT.............................................................. 12
15. CONFIDENTIALITY......................................................... 12
16. FORCE MAJEURE........................................................... 12
EXHIBIT A................................................................... 14
EXHIBIT B................................................................... 15
EXHIBIT C................................................................... 16
EXHIBIT D................................................................... 17
EXHIBIT E................................................................... 18
</TABLE>
2
<PAGE>
OPTION AGREEMENT
----------------
THIS AGREEMENT is made and becomes effective as of May 31, 1996 (the
"Effective Date"), by Taiwan Semiconductor Manufacturing Co., Ltd. ("TSMC"), a
company organized under the laws of the Republic of China with its registered
address at No. 121, Park Ave. 3, Science-Based Industrial Park, Hsinchu, Taiwan,
and, Benchmarq Microelectronics, Inc. ("Customer"), a company organized under
the laws of Delaware, with its corporate headquarters at 17919 Waterview
Parkway, Dallas, Texas 75252.
RECITALS
WHEREAS, TSMC currently supplies Customer with wafers and Customer wishes
to increase the volume of wafers to be purchased from TSMC;
WHEREAS, in order to increase its output, TSMC XXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX;
WHEREAS, as a condition to TSMC's acceleration of these facilities, TSMC
has asked that Customer make a capacity commitment and advance payment for the
right to buy additional capacity, and Customer is willing to do so:
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1. DEFINITIONS
(a) "Base Capacity" used in this Agreement shall mean the base amount of
annual wafer capacity that is used to calculate the Customer's
Committed Capacity, which amount is set forth in Exhibit B.
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
3
<PAGE>
(b) "Customer Committed Capacity" used in this Agreement shall mean the
total capacity that Customer agrees to purchase from TSMC pursuant to
this Agreement, and is set forth in Exhibit B.
(c) "Option Capacity" used in this Agreement shall mean the firm capacity
commitment made by Customer pursuant to this Agreement, for which
Capacity Customer agrees to pay the Option Fee as defined in this
Section 1(d) below, and is set forth in Exhibit B.
(d) "Option Fee" used in this Agreement shall mean the deposit that
Customer agrees to place with TSMC as the advance payment for the
Option Capacity.
(e) "TSMC Committed Capacity" used in this Agreement shall mean the total
capacity that TSMC agrees to provide to Customer pursuant to this
Agreement, and is set forth in Exhibit B.
(f) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
2. VOLUME COMMITMENT
(a) Customer agrees to purchase from TSMC the Customer Committed Capacity,
and subject to the payment of the Option Fee by Customer under Section
5 below, TSMC agrees to provide to Customer the TSMC Committed
Capacity, as set forth in Exhibit B.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
(b) Each month, Customer agrees to provide to TSMC a six-month rolling
forecast of the number of wafers that Customer will purchase,
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXX. The
forecast must be based on wafers out or deliveries
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
4
<PAGE>
expected to be made by TSMC.
(c) TSMC will use its reasonable effort to cause its fabs to be capable of
producing wafers of more advanced specifications, as set forth in the
TSMC Technology Road Map attached as Exhibit C.
3. WAFER PRICE
(a) The wafer prices for the Customer Committed Capacity shall XXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXX for the same technology, the same fab and
the same period of time. In the event that the wafer prices for the
Customer Committed Capacity do not comply with the preceding sentence,
TSMC will make proper price changes for the unfilled orders, upon
Customer's notice in writing.
(b) The parties shall negotiate in good faith each year the wafer prices
for the Customer Committed Capacity of the following year, XXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
4. OTHER PURCHASE TERMS AND CONDITIONS
The Customer/TSMC Wafer Production Agreement [to be completed within
sixty (60) days of the effective date of this Agreement] will apply to
all purchases of wafers by Customer from TSMC and delivery of all
wafers from TSMC to the Customer, except that the provisions of this
Agreement will supersede the above Agreement with respect to the
subject matter hereof.
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
5
<PAGE>
5. OBLIGATION TO PAY OPTION FEE FOR OPTION CAPACITY
(a) Customer agrees to pay to TSMC the Option Fee in the amount of
XXXXXXXXXXXXXXXXXXXXXXXXXXX for the right to purchase the Option
Capacity pursuant to this Agreement. The Option Fee is set forth in
Exhibit D and shall be paid on the dates specified. Except that TSMC
exercises its first right of refusal and accepts the Customer's offer
pursuant to Section 6 below, the Option Fee for any calendar year,
once paid, shall be non-refundable for any cause except the parties
failure to mutually agree in writing to the Wafer Production Agreement
within sixty (60) days of the effective date of this Agreement and
TSMC's failure to deliver the requisite wafers pursuant to such Option
Capacity and Section 4 of this Agreement (in such cases the applicable
portion of the Option Fee which has been paid by the Customer will be
promptly refunded by TSMC), and will be credited against the wafer
prices for the Option Capacity provided by TSMC for that particular
year under this Agreement.
(b) Customer further agrees to deliver to TSMC, within seven (7) days
following the Effective Date, one (1) promissory note in an amount of
the Option Fee due in 1997 as specified in Exhibit D and payable to
TSMC or order, which promissory note is in the form of Exhibit E. The
promissory note shall be returned by TSMC to Customer within seven (7)
days upon receipt of the corresponding Option Fee by TSMC.
6. FAILURE TO PURCHASE THE OPTION CAPACITY;
FIRST RIGHT OF REFUSAL
(a) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
6
<PAGE>
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
(b) Any of Customer's right or obligation set forth in Section 6(a) shall
not affect its obligation to pay the Option Fee pursuant to Section 5
above, except that if this Agreement is assigned to any third parties
acceptable to TSMC pursuant to this Section 6(a) above, such third
parties shall pay any unpaid portion of the Option Fee and abide by
the terms and conditions of this Agreement.
7. TERM AND TERMINATION
(a) The term of this Agreement shall commence from the Effective Date, and
continue until December 31, 2000.
(b) TERMINATION BY TSMC FOR CUSTOMER'S FAILURE TO PAY THE OPTION FEE
TSMC may terminate this Agreement if Customer fails to pay the Option
Fee pursuant to Section 5 above, and does not cure or remedy such
breach within thirty (30) days of receiving written notice of such
breach.
(c) TERMINATION FOR OTHER BREACH OR FOR BANKRUPTCY
Either party may terminate this Agreement if, (i) the other party
breaches any material provisions of this Agreement (other than the
breach of Section 5 above), and does not cure or remedy such breach
within ninety (90) days of receiving written notice of such breach, or
(ii) becomes the subject of a voluntary or involuntary petition in
bankruptcy or any proceeding relating to insolvency, receivership or
liquidation, if such petition or proceeding is not dismissed with
prejudice within ninety (90) days after filing.
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
7
<PAGE>
(d) EFFECT OF TERMINATION
Both parties shall remain liable to the other party for any
outstanding and matured rights and obligations at the time of
termination, including all outstanding payments of the Option Fee and
for the wafers already ordered and/or shipped to Customer.
8. BOARD APPROVAL
Customer shall obtain the approval by its Board of Directors of this
Agreement, and submit to TSMC, at the time of executing this
Agreement, an authentic copy of it's board resolution authorizing the
representative designated below to execute this Agreement.
9. LIMITATION OF LIABILITY
In no event shall either party be liable for any indirect, special,
incidental or consequential damages (including loss of profits and
loss of use) resulting from, arising out of or in connection with
either party's performance or failure to perform under this Agreement,
or resulting from, arising out of or in connection with either party's
producing, supplying, and/or sale of the wafers to the Customer,
whether due to a breach of contract, breach of warranty, tort, or
negligence of either party, or otherwise.
10. NOTICE
All notices required or permitted to be sent by either party to the
other party under this Agreement shall be sent by registered mail
postage prepaid, or by personal delivery, or by fax. Any notice given
by fax shall be followed by a confirmation copy within ten (10) days.
Unless changed by written notice given by either party to the other,
the addresses and fax numbers of the respective parties shall be as
follows:
To TSMC:
TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, LTD.
No. 121, Park Avenue 3
Science-Based Industrial Park
Hsinchu, Taiwan
Republic of China FAX: 886-35-781545
8
<PAGE>
To Customer:
BENCHMARQ MICROELECTRONICS, INC.
17919 Waterview Parkway
Dallas, TX 75252 FAX:(214) 437-9198
11. ENTIRE AGREEMENT
This Agreement, including Exhibits A-E, constitutes the entire
agreement between the parties with respect to the subject matter
hereof, and supersedes and replaces all prior or contemporaneous
understandings, agreements, dealings and negotiations, oral or
written, regarding the subject matter hereof. No modification,
alteration or amendment of this Agreement shall be effective unless in
writing and signed by both parties. No waiver of any breach or failure
by either party to enforce any provision of this Agreement shall be
deemed a waiver of any other or subsequent breach, or a waiver of
future enforcement of that or any other provision.
12. GOVERNING LAW
This Agreement will be governed by and interpreted in accordance with
the laws of the California.
13. ARBITRATION
(a) General. Each party will make best efforts to resolve amicably any
-------
claims, controversies, or disputes under this Agreement. In the event
that a resolution is not reached among the parties within thirty (30)
days after written notice by any party of the dispute or claim, the
dispute or claim shall be finally settled by binding arbitration in
accordance with the provisions of this Section 13. The parties agree
that all actions, claims, controversies or disputes of any kind (e.g.
whether in contract or in tort, statutory or common law, legal or
equitable or otherwise) ("Disputes") between them relating, directly
or indirectly, to this Agreement are to be resolved by arbitration as
provided in this Agreement. All arbitration will be
9
<PAGE>
conducted pursuant to and in accordance with the following order of
priority (i) the terms of this Agreement, (ii) the Commercial
Arbitration Rules of the American Arbitration Association, and (iii)
to the extend the foregoing are inapplicable, unenforceable or
invalid, the laws of the State of California. The arbitrator(s) used
will be selected from a list of persons familiar with disputes
regarding the semiconductor manufacturing industry to be provided by
the American Arbitration Association. Any hearing regarding
arbitration will be held in the Greater Bay Area, California, or at
another location mutually acceptable to both parties. The parties will
use reasonable efforts to assure that the arbitrator(s) will use their
best efforts to conduct the arbitration hearing as soon as
practicable.
(b) Discovery. Discovery will be conducted solely through depositions and
---------
requests for documents and things but otherwise will be governed by
the Federal Rules of Civil Procedure. The arbitrator(s) will resolve
any discovery disputes by such prehearing conferences as may be
needed. Both parties agree that the arbitrator(s) will have the power
of subpoena process as provided by law. Disputes concerning the scope
of depositions or document production, its reasonableness and
enforcement of discovery requests will be subject to Agreement by the
parties or will be resolved by the arbitrator(s). All discovery
requests will be subject to the proprietary rights and rights of
privilege and other protections granted by applicable law to the
parties. The arbitrator(s) will adopt procedure to protect such
rights. With respect to any Dispute, each party agrees that all
discovery activities shall be expressly limited to matters directly
relevant to the Dispute and the arbitrator(s) will be required to
fully enforce this requirement.
(c) Enforcement. The decision of the arbitrator(s) will be final and
-----------
binding on all parties. Any judgment upon the award rendered by the
arbitrator(s) may be entered in any court having jurisdiction thereof.
The decision of the arbitrator(s) will be enforceable in any court of
competent jurisdiction. Except for proceedings seeking equitable
remedies, an arbitration proceeding commenced pursuant to this Section
13 is a condition precedent to and is a complete defense to the
commencement of any suit, action or proceeding in any federal or state
court with respect to any Dispute. Either party may bring an action in
court to compel arbitration. Any party who fails or refuses to submit
to binding arbitration following demand by the other party shall bear
all costs and expenses incurred by the opposing party in compelling
arbitration.
10
<PAGE>
(d) Powers and Qualifications: Awards: Modification or Vacation of Award.
--------------------------------------------------------------------
The arbitrator(s) are empowered to resolve Disputes by summary rulings
substantially similar to summary judgments and motions to dismiss. The
arbitrator(s) will resolve all Disputes in accordance with the
substantive laws of the State of California. The arbitrator(s) may
grant any remedy or relief deemed just and equitable and within the
scope of this Agreement and may also grant such ancillary relief as is
necessary to make effective any award. The arbitrator(s) will be
required to make specific, written findings of fact and conclusions of
law, and the parties will have the right to seek vacation or
modification of an award only if (I) that award is based in whole, or
in part, upon fraud or (ii) failure to follow the procedures set forth
in this Section 13. For these purposes, the award and judgment entered
by the federal or state district court shall be considered to be the
same as the award and judgment of the arbitrator(s). To the extent
permitted by applicable law, the arbitrator(s) will have the power to
award recovery of all costs and fees (including attorneys' fees,
administrative fees, and arbitrators' fees) to the prevailing party.
(e) Limitation on Award. The arbitrator(s) will be limited to interpreting
-------------------
the applicable provisions of this Agreement, and will not have the
authority or power to alter, amend, modify, revoke or suspend any
condition or provision of this Agreement, nor to create, draft or form
a new agreement between the parties, nor to render an award which, by
its terms, has the effect of altering or modifying any condition or
provision of this Agreement.
(f) Provisional Remedies and Multiple Parties. No provision of, nor the
-----------------------------------------
exercise of any rights under, this Agreement will limit the right of
any party, during any Dispute, to resort to a court of applicable
jurisdiction to seek such equitable remedies as may be available to
such party, and any such action will not be deemed an election of
remedies. Such rights will include, without limitation, rights and
remedies relating to injunctive relief. Such rights may be exercised
at any time except to the extent such action is contrary to an award
or decision of the arbitrator(s). The institution and maintenance of
an action for equitable relief will not constitute a waiver of the
right of any party, to submit a Dispute to arbitration, nor render
inapplicable the compulsory arbitration provisions of this Agreement.
(g) Choice of Arbitrator(s). The arbitrator(s) will be chosen by mutual
-----------------------
agreement of the parties. If they cannot agree within thirty (30) days
upon a single arbitrator, each will, within fifteen (15) days
11
<PAGE>
thereafter, appoint an arbitrator and such arbitrators will appoint a
third impartial arbitrator. If more than one arbitrator is appointed,
the decision of a majority of such arbitrators will be binding.
Subject to the provisions of Subsection 13(d), (i) each party will be
responsible for the expenses and fees of the arbitrator appointed by
it and one-half of the fees and expenses of the third arbitrator, (ii)
if there is only one arbitrator appointed, each party will be
responsible for one-half of the fees and expenses of such arbitrator
and (iii) each party will bear its own attorney's and expert's fees.
If either party fails to timely appoint an arbitrator, the decision of
the arbitrator who is timely appointed will be binding.
14. ASSIGNMENT
This Agreement shall be binding on and inure to the benefit of each party
and its successors, and except that Customer may assign this Agreement
under Section 6 above, neither party shall assign any of its rights
hereunder, nor delegate its obligations hereunder, to any third party,
without the prior written consent of the other.
15. CONFIDENTIALITY
Neither party shall disclose the existence or contents of this Agreement
except as required by Customer's assignment of this Agreement to any third
parties pursuant to Section 6 above, in confidence to its advisers, as
required by Securities and Exchange Commission regulations and related
laws, as required by applicable law, or otherwise without the prior written
consent of the other party and to enforce this Agreement.
16. FORCE MAJEURE
Neither party shall be responsible for delays or failure in performance
resulting from acts beyond the reasonable control of such party. Such acts
shall include but not limited to acts of God, war, riot, labor stoppages,
governmental actions, fires, floods, and earthquakes.
12
<PAGE>
IN WITNESS WHEREOF, the parties, have executed this Agreement as of the
date first stated above.
TAIWAN SEMICONDUCTOR BENCHMARQ
MANUFACTURING CO., LTD. MICROELECTRONICS, INC.
BY:/s/ Don Brooks BY:/s/ Derrell Coker
---------------------------- -------------------------------
Donald Brooks Derrell Coker
President President
13
<PAGE>
EXHIBIT A
EQUIVALENCY FACTOR TABLE
<TABLE>
<CAPTION>
- --------------------------------------------------------------------------------
XXXXXXX XXXXXX XXXXXXXXXX XXXXXXXXXX
XXXXXXXXXXXXXXXXXX XXXXXXXXXX XXXXXXXXX XXXXXXXX XXXXXXXXX
XXXXXXXXX
XXXXXXXXX
- --------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXX XX XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXX XX X XX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXXXX XX X XXXX XXXX
- --------------------------------------------------------------------------------
</TABLE>
REMARKS:XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
DATE OF ISSUE: XXXXXXXX
(X-"Portions of the subject exhibit have been ommitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.")
14
<PAGE>
EXHIBIT B
BENCHMARQ/TSMC
COMMITTED CAPACITY
<TABLE>
<CAPTION>
UNIT: XXXXXXXXXXXXXXXXXXXXXX
-----------------------------------------------------------------------------
1996 1997 1998 1999 2000
---- ---- ---- ---- ----
-----------------------------------------------------------------------------
<S> <C> <C> <C> <C> <C>
-----------------------------------------------------------------------------
XXXXXXXXXXXXX X X X X X
XXXXXXXXXXXXX
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
XXXXXXXXXXXXX XXX XXX XXX XXX
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
XXXXXXXXXXXXXXXXX XXXX XXXX XXXX XXXX
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
XXXXXXXXXXXXXXX X X X X
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
XXXXXXXXXXXX X X X X
XXXXXXXX
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXXXXXX X XX XX XX XX
XXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
-----------------------------------------------------------------------------
-----------------------------------------------------------------------------
XXXXXXXXXXXXXXXXXXX XXXX XXXX XXXX XXXX
XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXX
-----------------------------------------------------------------------------
</TABLE>
* XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
Deposits Required: $ 5.88M - XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
Payment Schedule: $ 2.5M - May 31, 1996
$ 3.38M - March 31, 1997
(X-"Portions of the subject exhibit have been ommitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.")
15
<PAGE>
EXHIBIT C
TSMC CMOS TECHNOLOGY ROADMAP
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
("Portions of the subject exhibit have been ommitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.")
16
<PAGE>
EXHIBIT D
OPTION FEE
<TABLE>
<CAPTION>
Years Total Option Option Fee Due Date
Capacity (Unit: (Unit: US$)
Wafer Equivalent)
- -------------------------------------------------------------------------------
<S> <C> <C> <C>
1996- XXX $ 2.5M May 31, 1996
2000
$ 3.38M March 31, 1997
</TABLE>
(X-"Portions of the subject exhibit have been ommitted and filed separately with
the Commission pursuant to a request for Confidential Treatment.")
17
<PAGE>
EXHIBIT E
STANDARD FORM OF PROMISSORY NOTE
Amount: US$______________ Due Date:__________________
The Undersigned, _____________________ (the "Maker"), unconditionally
promise to pay to Taiwan Semiconductor Manufacturing Co., Ltd. or its order the
sum of US Dollars _________________ ($___________), plus interest calculated
from the Due Date stated herein to the date of full payment at the rate of 10%
per annum on any unpaid portion of the principal amount stated herein, and said
payment will be made at ________________ (Place of Payment).
This Note shall be governed in all respects by the laws of the State of
California.
The Maker of this Note agrees to waive protests and notice of whatever
kind.
Issue Date: ________________
Issue Place: _______________
Maker's Signature:______________________
Maker's Address: ______________________
______________________
18
<PAGE>
EXHIBIT 10.2
WAFER PRODUCTION AGREEMENT
(FOR OPTIONEES ONLY)
BETWEEN
TAIWAN SEMICONDUCTOR MANUFACTURING
COMPANY, LTD.
AND
BENCHMARQ MICROELECTRONICS, INC.
JULY 30, 1996
1
<PAGE>
TABLE OF CONTENTS
<TABLE>
<S> <C>
1. DEFINITIONS.............................................................. 3
2. PRODUCT DEVELOPMENT...................................................... 4
3. SUPPLY................................................................... 5
4. ON-SITE INSPECTION AND VENDOR INFORMATION................................ 6
5. DELIVERY................................................................. 7
6. ACCEPTANCE............................................................... 7
7. PRICE.................................................................... 7
8. PROPRIETARY INFORMATION.................................................. 8
9. WARRANTY................................................................. 9
10. INTELLECTUAL PROPERTY INDEMNITY......................................... 10
11. LIMITATION OF LIABILITY................................................. 11
12. EXPORT CONTROL.......................................................... 11
13. TERM AND TERMINATION.................................................... 12
14. FORCE MAJEURE........................................................... 12
15. NON-PUBLICITY........................................................... 12
16. ASSIGNMENT.............................................................. 12
17. GOVERNING LAW AND ARBITRATION........................................... 13
18. NOTICE.................................................................. 13
19. ENTIRE AGREEMENT........................................................ 14
20. LIST OF EXHIBITS........................................................ 16
</TABLE>
2
<PAGE>
WAFER PRODUCTION AGREEMENT
THIS AGREEMENT is entered into, effective July 30, 1996 (the "Effective
Date"), by and between Taiwan Semiconductor Manufacturing Co., Ltd., a company
duly incorporated under the laws of the Republic of China, having its principal
place of business at No. 121, Park Avenue III, Science Based Industrial Park,
Hsin-Chu, Taiwan, R.O.C. ("TSMC"), and Benchmarq Microelectronics, Inc. a
company duly incorporated under the laws of Delaware having its principal place
of business at 17919 Waterview Parkway, Dallas, Texas 75252 ("Customer").
RECITALS
Customer has designed and/or manufactures integrated circuits, and wishes to
have a manufacturing source for certain of such integrated circuits.
TSMC is in the business of manufacturing such integrated circuits, and wishes to
manufacture such integrated circuits for Customer.
Customer and TSMC have in place an Option Agreement dated May 31, 1996,
outlining quantity commitments for both parties.
AGREEMENT
NOW, THEREFORE, in consideration of the mutual covenants and conditions
contained herein, the parties agree as follows:
1. DEFINITIONS
(a) "PROCESS" shall mean the process available at TSMC as set forth in Exhibit
A, or such process or successor process as may be mutually acceptable. The
Process shall be used to manufacture the Products defined below.
(b) "PRODUCTS" used in this Agreement shall mean those products designed by
Customer and manufactured for Customer by TSMC under this Agreement,
including wafers, devices and packaged devices, but does not include test
wafers or risk start wafers as described in Section 2. The Products shall
meet the Parametric and Electrical Specifications set forth in Exhibit B,
and the Products in device form, upon Customer's request, may be packaged
and marked in accordance with the requirements set forth in Exhibit B-1.
3
<PAGE>
(c) "PROPRIETARY INFORMATION" shall mean mask data base data and also shall
mean any other information that is controlled by a party and is identified
as proprietary and confidential and that is disclosed by either party to
the other under this Agreement. Written Proprietary Information shall be
clearly marked or labeled "PROPRIETARY" or "CONFIDENTIAL" or other words of
similar meaning. All oral disclosures of Proprietary Information shall be
identified as such prior to disclosure except data disclosed orally prior
to the date of this Agreement and confirmed, in writing, by the disclosing
party within thirty (30) days of the later of (i) oral disclosure or (ii)
the date hereof. In case of disagreement, the receiving party must make an
objection thereto, in writing, within thirty (30) days of receipt.
2. PRODUCT DEVELOPMENT
(a) The parties shall agree upon the Process for the manufacture of the
Products, and upon the specifications according to which Customer shall
conduct acceptance of the Products (the "Quality and Reliability
Specifications"). The Quality and Reliability Specifications are shall be
reduced into writing and attached hereto as Exhibit C. TSMC shall furnish
the design rule and parametric information for the agreed upon Process,
which information shall be described in Exhibit A.
(b) TSMC will make, or designate a mask vendor to make, the mask sets for the
Products in accordance with the device database tapes provided by Customer,
and in case that a mask vendor is used, TSMC will provide mask alignment
and test structure databases to the mask vendor. TSMC shall be responsible
for ensuring that the mask sets are manufactured in accordance with device
database tapes provided by Customer and the mask alignment and test
structure databases provided by TSMC. Customer shall bear all the costs and
expenses of producing the mask sets necessary for the production of the
Products under this Agreement. The mask sets, if not used for a specified
period of time, will be handled as proprietary data and in accordance with
TSMC idle mask policy then in effect.
(c) TSMC will provide Customer with such amount of test wafers as Customer may
require for qualification, at the purchase prices specified in Section 7.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXX, following upon receipt of the test wafers, Customer shall
inform TSMC in writing of whether or not such test wafers meet the Quality
and Reliability Specifications, and if affirmative, full qualification will
be deemed completed and TSMC will proceed to produce the Products pursuant
to the purchase order or orders issued by Customer, if any, and accepted by
TSMC under Section 3 below, if any. If no notification is received by TSMC
during the time period specified in the preceding sentence, full
qualification shall be deemed accomplished. In the event that the test
wafers do not meet the Quality and Reliability Specifications, the parties
will work together in good faith to achieve full qualification.
(X- "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
4
<PAGE>
(d) Upon Customer's request, TSMC will provide additional test wafers or "risk
starts" at the purchase prices specified in Section 7.
(e) Prior to the completion of full qualification, Customer may, by giving at
least seven (7) days notice to TSMC, terminate the production of any test
wafers or risk starts specified in Subsections 2(c) and 2(d), and TSMC will
do so following the completion of the process steps at which such test
wafers or risk starts reside at the time of receiving such notice. In such
event, Customer shall pay TSMC for all the test wafers and/or risk starts
so affected, and the prices for such test wafers and/or risk starts shall
be the respective purchase prices specified in Section 7, equitably
prorated based on the completed stage of production.
(f) The parties may agree to add processes from which the Customer may purchase
wafers. Whereas, the procedures included herein in Section 2 and
Subsections (a), (b), (c), (d) and (e) will be followed.
3. SUPPLY
(a) Subject to the terms and conditions of this Agreement and the Option
Agreement, TSMC agrees to manufacture and supply to Customer the test
wafers and Products during the term of this Agreement. TSMC shall use
its best efforts to deliver Products in quantities and timing consistent
with the Customers purchase orders.
(b) TSMC agrees to use reasonable efforts to meet all the quantity requirements
of Customer for the Products in excess of the binding quantity commitments
of TSMC to Customer as described in the Option Agreement dated May 31,
1996.
(c) Customer shall place purchase orders or other release documents ("Purchase
Orders") for such quantities of the Products as and when it requires.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXX. Such Purchase Orders constitute
firm purchase obligations on the part of Customer and shall only be final
subject to acceptance by TSMC. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. The terms
of the Purchase Orders must be consistent with and limited to the terms and
conditions of this Agreement.
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
5
<PAGE>
(d) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX.
(e) It is anticipated that from time to time there may be instances where an
accelerated lead and cycle time is required to serve the needs of Customer,
and in such instances, TSMC shall, upon mutually agreed upon terms and
conditions, use reasonable efforts to accelerate the schedule of production
for the Products and/or increase the volume of the Products manufactured
for Customer in order to meet such needs.
(f) If Customer notifies TSMC in writing that modifications to the Quality and
Reliability Specifications are required, including modifications to mask
tooling, process or testing, TSMC shall use its best effort to make such
modifications within a reasonable period of time after Customer
notification, provided that any adjustments in price, production, delivery
schedule, and any other terms and conditions of this Agreement shall meet
with TSMC's approval prior to the making of such modifications. It is
understood that all costs to be incurred as a result of making such
modifications (including retooling cost) shall be agreed upon in advance of
the modifcations and shall be borne by Customer.
(g) Customer may, at any time, add or substitute similar Product types using
the Processes agreed upon by the parties under Section 2, and TSMC shall
use reasonable efforts to produce such similar Product types as requested.
All the costs incurred as a result of such adding or substituting similar
Product types shall be borne by Customer. The prices for such similar
Product types shall be negotiated by the parties.
4. ON-SITE INSPECTION AND VENDOR INFORMATION
(a) At a frequency of no more than once a year, Customer may send its
representatives to inspect TSMC's production facilities involved in the
manufacture of the Products during normal working hours, by giving a
reasonable prior written notice to TSMC.
(b) Upon Customer's written request, TSMC will provide Customer with process
control information as set forth in Exhibit A-1, XXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(X- "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
6
<PAGE>
5. DELIVERY
(a) Unless otherwise agreed to between the parties, TSMC shall deliver the
Products to Customer in accordance with the terms and conditions of the
INCOTERMS 1990 - EXW (Ex Works TSMC's Hsin-Chu Factory) the outline of
which is set forth in Exhibit E. Title to the Products and risk of loss
shall pass to Customer upon delivery. TSMC shall package the Products for
secure shipment according to good manufacturing practices with
consideration of the method of shipment chosen. The date of the receipt
issued by the carrier shall be conclusive proof of the date and fact of
shipment of Products.
(b) Partial shipments are allowed, so long as full shipment of the appropriate
quantities are made by the delivery dates specified in the respective
Purchase Orders. Such partial shipments may be invoiced individually or in
combination with all the other partial shipments made under the same
Purchase Order.
(c) Any delivery or shipment made within fifteen (15) days before or after the
delivery date(s) specified in the Purchase Orders shall constitute timely
delivery or shipment.
6. ACCEPTANCE
(a) Customer shall accept all conforming tenders of the Products delivered
under this Agreement, and shall notify TSMC in writing,
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX, as to
either acceptance or rejection thereof. If no notification indicating
rejection is received by TSMC within the above time period, then such
Products shall be deemed accepted.
(b) Customer may inspect the Products and carry out testing, prior to
acceptance thereof, at its own facilities. The inspection and testing
shall be performed pursuant to the methods set forth in Exhibit D.
7. PRICE
(a) XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXX. The Product Prices are in U.S. currency and net of any and all taxes
and duties, including but not limited to customs duties, sales tax, value
added tax, use tax, and excise tax. Customer shall pay all applicable U.S.
(X- "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
7
<PAGE>
taxes (including one or more of the above taxes, but excluding all taxes
based on TSMC's income) in addition to the Product Prices quoted in Exhibit
F.
(b) Unless otherwise agreed upon by the parties, payment terms shall be net due
thirty (30) days after the date of TSMC's invoice. Any payment made under
this Agreement shall be in U.S. dollars subject, to the extent applicable,
to the conditions of Subsection 5(a) of the Option Agreement dated May
31, 1996.
(c) The Product Prices quoted are based upon the New Taiwan Dollar/U.S. Dollar
exchange rate in effect at the time of execution of this Agreement, and
will be subject to, at the time of shipment, an adjustment due to changes
in the exchange rate between New Taiwan Dollars and U.S. Dollars XXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX.
8. PROPRIETARY INFORMATION
(a) Both parties agree to maintain Proprietary Information of the other party
in strict confidence, not to make use thereof other than for the
performance of this Agreement, to release it only to employees who have a
reasonable need to know the same and who have agreed to comparable
restrictions on use and disclosure, and not to release or disclose it to
any third parties without the prior written consent of the disclosing
party. The obligations set forth in this Subsection shall not apply to any
information that: (i) is now or hereafter in the public domain or otherwise
becomes available to the public other than by breach of this Agreement by
the receiving party; (ii) is rightfully in the receiving party's possession
prior to receipt from the disclosing party; (iii) is rightfully received by
the receiving party from a third party; (iv) is independently developed by
the receiving party; and (v) is authorized by the disclosing party to be
released or disclosed. The obligations of non-disclosure set forth in this
Subsection shall not apply to information that is required to be disclosed
in accordance with applicable law.
(b) All Proprietary Information of the disclosing party and any copies thereof
shall remain the property of the disclosing party, and no license or other
right is granted or implied hereby. The receiving party shall, upon the
disclosing party's request, return the original and all copies of tangible
Proprietary Information of the disclosing party. Any mask sets generated
by TSMC from Customer's database tapes shall be the property of Customer,
and will be returned to Customer upon request. TSMC shall have any and all
the rights to and interests in any modifications or improvements of the
Process during the course of performance of this Agreement.
(c) The obligation under this Section shall survive the termination or
expiration of this Agreement, and shall be effective for a period of five
(5) years from the date of disclosure.
(X- "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
8
<PAGE>
9. WARRANTY
(a) TSMC warrants that the Products delivered hereunder shall meet the Quality
and Reliability Specifications as set forth in Exhibit C-1 and shall be
free from defects in material and workmanship under normal use for a period
of one (1) year from the date of shipment. If, during the one (1) year
period: (i) TSMC is notified promptly in writing upon discovery of any
defect in the Products, including a detailed description of the alleged
defect; (ii) such Products are returned to TSMC, F.O.B. TSMC Hsin-Chu
(INCOTERMS 1990) as set forth in Exhibit E; and (iii) TSMC's examination of
such Products reveals that such Products are indeed defective and not
caused by accident, abuse, misuse, neglect, improper installation, device
packaging or shipping packageing, repair or alteration by someone other
than TSMC, or improper testing or use contrary to any instructions given by
TSMC, then TSMC shall, at its option, either repair, if applicable,
replace, or credit Customer for such defective Products
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXX. TSMC shall return any Products
repaired or replaced under this warranty to Customer transportation
prepaid, and shall reimburse Customer for the transportation charges paid
by Customer for returning such defective Products to TSMC. The performance
of this warranty shall not act to extend the one (1) year warranty period
for any Products repaired or replaced beyond that period applicable to such
Products as originally delivered.
(b) The foregoing constitutes TSMC's exclusive liability, and Customer
exclusive remedy for any breach of warranty under this Agreement, including
any non-conformity of the Products with the Quality and Reliability
Specifications, and any defects in material or workmanship of the Products.
The warranty set forth in this Section 9 is the only warranty that applies
to the Products manufactured by TSMC hereunder. No warranty claims may be
made to TSMC for the Products, except by Customer in accordance with the
terms of this Agreement.
THE FOREGOING WARRANTY SHALL BE EXCLUSIVE AND IN LIEU OF ANY AND ALL OTHER
WARRANTIES: EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO,
THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ALL
OF WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
(c) Notwithstanding the provisions of Subsection 9(a) above, prior to any
return of allegedly defective Products by Customer pursuant to Subsection
9(a) Customer shall first afford TSMC the opportunity upon TSMC's request,
to inspect the allegedly defective Products at Customer's facilities,
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX. If TSMC thereby determines that the
allegedly defective Products are defective or non-conforming with the
Quality and Reliability
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
9
<PAGE>
Specifications, or that such alleged defects are caused by defects in
material or workmanship of TSMC, then Customer shall be entitled to repair,
replacement or credit under this Subsection.
10. INTELLECTUAL PROPERTY INDEMNITY
(a) Subject to Subsection 10(b) below, TSMC shall, at its expense and at
Customer request, defend any claim or suit brought against Customer, solely
to the extent that it is based solely on a Process provided by TSMC
pursuant to this Agreement that infringes any patent, copyright, trade
secret or other proprietary rights of a third party within a list of
claims, and TSMC shall indemnify and hold Customer harmless from and
against any costs, damages and fees reasonably incurred by Customer,
including but not limited to, attorney's fees that are attributable to such
claim or suit related to that Process, provided that: (i) Customer gives
TSMC reasonably prompt notice in writing of any such claim or suit, and
permits TSMC, through counsel of its choice and reasonably acceptable to
Customer, to answer the charge of infringement and defend such claim or
suit; (ii) Customer provides TSMC information, assistance and authority, at
TSMC's expense, to enable TSMC to defend such suit or claim; and (iii) TSMC
shall not be responsible for any settlement made by Customer without TSMC
written permission.
(b) TSMC shall have no liability under this Agreement for any claim or suit
where infringement arises solely out of TSMC's compliance with or
implementation of any of Customer's instructions, specifications, designs
or requirements (including those relating to the Process) hereunder, and
Customer shall defend such claim or suit and indemnify and hold TSMC
harmless from and against any costs, damages and fees reasonably incurred
by TSMC in connection with such claim or suit, including but not limited
to, attorneys' fees that are attributable to such claims or suit, provided
that: (i) TSMC gives Customer reasonably prompt notice in writing of any
such claim or suit, and permits Customer, through counsel of its choice and
reasonably acceptable to TSMC, to answer the charge of infringement and
defend such claims or suit; (ii) TSMC provides Customer information,
assistance and authority at Customer's expense, to enable Customer to
defend such claim or suit; and (iii) Customer shall not be responsible for
any settlement made by TSMC without Customer's written permission.
10
<PAGE>
(c) If the court or a settlement enjoins the use of the Process by TSMC or, if,
in TSMC's opinion, the Process or Products are likely to become the subject
of a claim of infringement, TSMC shall, at its option, modify such Process
so that it becomes non-infringing, substitute a substantially equivalent
non-infringing process, obtain the right to continue using the Process
under this Agreement, or subject to Subsection 5(a) of the Option Agreement
dated May 31, 1996, decline to furnish or to continue to furnish the
Products under this Agreement. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XX.
(d) The foregoing states the entire liability and exclusive remedies of TSMC
and Customer for infringement by the Products, the Process and the
production of the Products furnished hereunder.
11. LIMITATION OF LIABILITY
In no event shall either party be liable for any punitive, exemplary,
indirect, special, incidental or consequential damages (including loss of
profits and loss of use) resulting from, arising out of or in connection
with such party's performance or failure to perform under this Agreement,
or resulting, from, arising out of or in connection with TSMC producing,
supplying, and/or sale of the Products or any part thereof, whether due to
a breach of contract, breach of warranty, tort, or negligence of either
party, or otherwise. The foregoing limitation on liability will not be
applicable to claims asserted by third parties which fall within the scope
of Section 10 of this Agreement.
12. EXPORT CONTROL
TSMC and Customer are subject to national export control regulations of the
Republic of China and the Export Administration Regulations of the United
States of America. TSMC and Customer will take all appropriate measures not
to violate these regulations and will indemnify the other party against and
hold keep the other party fully harmless from all damages arising out of or
in connection with any violation. Within reason and upon TSMC's request,
Customer shall execute any and all documents provided by TSMC to facilitate
the shipment of the Products in compliance with the export control
regulations.
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
11
<PAGE>
13. TERM AND TERMINATION
(a) The term of this Agreement shall commence from the Effective Date, and
continue until December 31, 2000.
(b) This Agreement may be terminated by either party if the other party: (i)
breaches any material provision of this Agreement and does not cure or
remedy such breach within sixty (60) days of notice of breach; (ii)
becomes the subject of a voluntary or involuntary petition in bankruptcy or
any proceeding relating to insolvency, receivership, liquidation, or
composition for the benefit of creditors if such petition or proceeding is
not dismissed with prejudice within ninety (90) days after filing. If
Customer is the breaching party under this provision, then TSMC shall be
entitled to stop or suspend the production of the Products upon giving
notice to Customer, and to the payment of the Product Prices for all
finished Products and work-in-process (partially finished Products) which
are identifiable to this Agreement, without prejudice to damages that
may be claimed by TSMC under applicable law.
(c) In addition to Section 8 above, the provisions under Sections 9, 10, 12 and
15 shall survive the termination or expiration of this Agreement.
14. FORCE MAJEURE
Neither party shall be held liable for any delay or failure to perform
under this Agreement if such delay or failure iscaused by unforeseen
circumstances due to causes beyond its control, including, but not limited
to: acts of God, war, riot, embargoes, labor stoppages, acts of civil and
military authorities, fire, floods, earthquakes or accidents.
15. NON-PUBLICITY
Except to the extent required by applicable law, neither publicity nor
information regarding the existence or contents of this Agreement shall be
given or released by either party without the prior written consent of the
other party.
12
<PAGE>
16. ASSIGNMENT
Neither party shall delegate any obligations under this Agreement nor
assign this Agreement or any interest or rights hereunder without the prior
written consent of the other, except that TSMC shall be free to choose the
mask vendor to make mask sets, and/or to subcontract the packaging of the
Products.
17. GOVERNING LAW AND ARBITRATION
(a) This Agreement shall be governed by and interpreted in accordance with the
laws of the State of California.
(b) Each party will make best efforts to resolve amicably any disputes or
claims under this Agreement among the parties. In the event that a
resolution is not reached among the parties within thirty (30) days after
written notice by any party of the dispute or claim, the dispute or claim
shall be finally settled pursuant to the arbitration procedure in Section
13 of the Option Agreement between the two parties.
18. NOTICE
All notices required or permitted to be sent by either party to the other
party under this Agreement shall be sent by registered mail postage
prepaid, or by personal delivery, or by fax. Any notice given by fax shall
be followed by a confirmation copy within ten (10) days. Unless changed by
written notice given by either party to the other, the addresses and fax
numbers of the respective parties shall be as follows:
To TSMC:
Taiwan Semiconductor Manufacturing Company, Ltd.
No. 121, Park Avenue 3
Science Based Industrial Park
Hsin-Chu, Taiwan
Republic of China FAX: 886-35-781545
To Customer:
Benchmarq Micrelectronics, Inc.
17919 Waterview Parkway
Dallas, TX 75252 FAX: (214) 437-9198
13
<PAGE>
19. ENTIRE AGREEMENT
In case of any conflict between this Agreement and the Option Agreement
dated May 31, 1996, the Option Agreement shall govern. This Agreement and
attached Exhibits and the Option Agreement dated May 31, 1996, constitute
the entire agreement between the parties with respect to the subject matter
hereof and supersedes and replaces all prior or contemporaneous
understandings, agreements, dealings, and negotiations, oral or written,
regarding the subject matter. Any terms and conditions listed in the
Purchase Orders placed by Customer under this Agreement, except quantities
ordered, shipment dates and delivery dates shall not constitute part of
this Agreement, nor affect or revise the terms and conditions of this
Agreement, even in cases such Purchase Orders are signed and returned by
TSMC, unless both parties expressly agree in writing to include any such
terms or conditions in the Agreement. No modification, alteration or
amendment of this Agreement shall be effective unless in writing and signed
by both parties. No waiver of any breach or failure by either party to
enforce any provision of this Agreement shall be deemed a waiver of any
other or subsequent breach or a waiver of future enforcement of that or any
other provision.
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed in duplicate on their behalf by their duly authorized
officers and representatives on the date given above.
Taiwan Semiconductor
Manufacturing Company, Ltd.
/s/ Don Brooks
-------------------------------------
Signature
_____________________________________
Don Brooks
_____________________________________
President
14
<PAGE>
IN WITNESS WHEREOF the parties hereto have caused this Agreement to be
duly executed in duplicate on their behalf by their duly authorized
officers and representatives on the date given above.
Benchmarq Microelectronics, Inc.
/s/ Derrell Coker
-------------------------------------
Signature
_____________________________________
Derrell Coker
_____________________________________
President
15
<PAGE>
20. LIST OF EXHIBITS
EXHIBIT A PROCESS DESIGN RULE & PARAMETRIC
INFORMATION
A-1 PROCESS CONTROL INFORMATION
B PARAMETRIC AND ELECTRICAL SPECIFICATIONS
B-1 PACKAGE SPECIFICATION
C QUALIFICATION PLAN
C-1 QUALITY AND RELIABILITY SPECIFICATIONS
D INSPECTION AND ACCEPTANCE TESTING
METHODS
E INCOTERMS
F PRICE QUOTE
16
<PAGE>
EXHIBIT A-1
PROCESS CONTROL INFORMATION
1. XXXXXXXXXXXXXXXXX
2. XXXXXXXX
3. XXXXXXXXXXXX
4. XXXXXXXXXXXXXXXXXXXXXXXXXX
5. XXXXXXXXXXXXXXXXXXXXXXXXXXXX
6. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
7. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
8. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
9. XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
(X - "Portions of subject exhibit have ommitted and filed separately with the
Commission pursuant to a request for Confidential Treatment.")
17
<PAGE>
EXHIBIT B
PARAMETRIC & ELECTRICAL SPECIFICATIONS
("Portions of subject exhibit have ommitted and filed separately with the
Commission pursuant to a request for Confidential Treatment.")
18
<PAGE>
EXHIBIT B-1
PACKAGE SPECIFICATION
("Portions of subject exhibit have ommitted and filed separately with the
Commission pursuant to a request for Confidential Treatment.")
19
<PAGE>
EXHIBIT C
QUALIFICATION PLAN
1. Wafers/process must pass all TSMC's documented electrical test parameters
and physical dimension specifications.
2. Wafers/process must pass TSMC electromigration, oxide pinhole, hot
electron, VT stability, metal integrity and metal step coverage tests.
3. Wafers/process must meet TSMC's documented design rule and device modeling
specifications.
4. Wafers and packaged unties will be submitted by Benchmarq for industry
standard environmental and reliability testing (such as High-Temperature
Operating Life, Temperature Cycling, THB, Autoclave, etc.). TSMC will be
notified of any wafer level problems that are detected and will implement
any necessary corrective action.
5. TSMC must provide periodic reliability and Statistical Process Control data
to Benchmarq on a regular basis.
6. Notices of any major changes to process or materials must be submitted to
Benchmarq in writing for their approval prior to the change being
implemented.
20
<PAGE>
EXHIBIT C-1
QUALITY AND RELIABILITY SPECIFICATIONS
SPECIFICATION NAME SPECIFICATION NUMBER
- ------------------ --------------------
XXXXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXX XXXXXXXXXXXX
XXXXXXXXXXXXXXXXXXXXXXXXXXXX
XXXXXXXXX XXXXXXXXXXXX
(X- "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
21
<PAGE>
EXHIBIT D
INSPECTION AND ACCEPTANCE TESTING METHODS
The following specifications describe the requirements and the minimum
conformance standard for TSMC manufactured products. The specifications listed
below apply to all products manufactured by TSMC.
1. TSMC Document XXXXXXXXXXXX Outgoing QA
Procedure
2. TSMC PCM data
3. TSMC functional test data (if applicable)
The above specifications identify the electrical criteria, minimum yield
criteria, visual criteria, and structural and mechanical standards that all TSMC
manufactured Products are required to meet.
(X- "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
22
<PAGE>
EXHIBIT E
INCOTERMS
Outline of Incoterms 1990
<TABLE>
<CAPTION>
Chapter Contents
- ------- --------
<S> <C>
EXW ............................................. Ex Works
FCA ............................................. Free Carrier
FAS ............................................. Free Alongside Ship
FOB ............................................. Free On Board
CAR ............................................. Cost and Freight
CIF ............................................. Cost, Insurance and Freight
CPT ............................................. Carriage Paid To
CIP ............................................. Carriage and Insurance Paid To
DAF ............................................. Delivered at Frontier
DES ............................................. Delivered Es Ship
DEQ ............................................. Delivered Ex Quay (Duty Paid)
DDU ............................................. Delivered Duty Unpaid
DDP ............................................. Delivered Duty Paid
</TABLE>
23
<PAGE>
July 25, 1996 EXHIBIT F
QUOTE
XXXXXXXXXXXXXXXXX
Benchmarq Microelectronics
Fax No. 214/437-9198
XXXXXXXXXXXXXXXX,
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
XXXXXXXXXXXXXXXXXXXXXXX.
<TABLE>
<CAPTION>
1. Price Quotation:
------------------------------------------------------
<S> <C>
XXXXXXXXXX XXXXXXXXXXXXXX
------------------------------------------------------
XXXXXXXXXXX XXXXXXXXXXXXX
XXXX XXXX XXXX XXXX
XXXXXXXX $XXX $XXX $XXX $XXX
XXXXXXXX $XXX $XXX $XXX $XXX
XXXXXXXX $XXX $XXX $XXX $XXX
XXXXXXXX $XXX $XXX $XXX $XXX
XXXXXXXX $XXX $XXX $XXX $XXX
------------------------------------------------------
</TABLE>
XXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXXX.
If you have any questions, please feel free to contactXXXXXXXXXXXXXXXXXXXXXXXXX.
Sincerely,
XXXXXXXXXX
XXXXXXXXXXXXXX,
North American Business
TSMC, USA
XXXXXXXXX
CC: XXXXXXXXXXXXXXX XXXXXXXXXXXXXXXX XXXXXXXXXXXXXX
XXXXXXXXXXXXX XXXXXXXXXXXX XXXXXXXXXXXXXX
(X - "Portions of the subject exhibit have been ommitted and filed separately
with the Commission pursuant to a request for Confidential Treatment.")
24
