-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IirdBmcRDfbQ6uKJFK8Ux0JvK0hakNakzz2C0t1LCh3tsUA55ZAASv8O4vtmcZoF 4rbyVIVjO0UcpIgRWRnrTg== 0000891618-99-005034.txt : 19991203 0000891618-99-005034.hdr.sgml : 19991203 ACCESSION NUMBER: 0000891618-99-005034 CONFORMED SUBMISSION TYPE: 10-Q PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 19990930 FILED AS OF DATE: 19991110 DATE AS OF CHANGE: 19991202 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LSI LOGIC CORP CENTRAL INDEX KEY: 0000703360 STANDARD INDUSTRIAL CLASSIFICATION: 3674 IRS NUMBER: 942712976 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 10-Q SEC ACT: SEC FILE NUMBER: 001-10317 FILM NUMBER: 99746586 BUSINESS ADDRESS: STREET 1: 1551 MCCARTHY BLVD STREET 2: MS D 106 CITY: MILPITAS STATE: CA ZIP: 95035 BUSINESS PHONE: 4084338000 MAIL ADDRESS: STREET 1: 1551 MCCARTHY BLVD STREET 2: MS D 106 CITY: MILPITAS STATE: CA ZIP: 95035 10-Q 1 FORM 10-Q FOR PERIOD ENDED SEPTEMBER 30, 1999 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. 1 2 LSI LOGIC CORPORATION Form 10-Q For the Quarter Ended September 30, 1999 INDEX
PAGE NO. ---- 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
2 3 PART I ITEM 1. FINANCIAL STATEMENTS LSI LOGIC CORPORATION CONSOLIDATED CONDENSED BALANCE SHEETS (In thousands, except per share amounts) (Unaudited)
SEPTEMBER 30, DECEMBER 31, 1999 1998 ------------- ------------ 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 ========== ==========
See accompanying notes to unaudited consolidated condensed financial statements. 3 4 LSI LOGIC CORPORATION CONSOLIDATED CONDENSED STATEMENTS OF OPERATIONS (In thousands, except per share amounts) (Unaudited)
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, ------------------------------------------------------------------------ 1999 1998 1999 1998 ----------- ----------- ----------- ----------- 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 =========== =========== =========== ===========
See accompanying notes to unaudited consolidated condensed financial statements. 4 5 LSI LOGIC CORPORATION CONSOLIDATED CONDENSED STATEMENTS OF CASH FLOWS (In thousands) (Unaudited)
NINE MONTHS ENDED SEPTEMBER 30, ----------------------------- 1999 1998 --------- --------- 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 ========= =========
See accompanying notes to unaudited consolidated condensed financial statements. 5 6 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 6 7 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)
BALANCE BALANCE BALANCE 6/22/99 UTILIZED 6/30/99 UTILIZED 9/30/99 ------- -------- ------- -------- ------- 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 ======= ======= ======= ======= =======
7 8 (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:
(In thousands) 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 ========
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. 8 9 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 9 10 - - - 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:
(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 -------- -------- -------- -------- -------- ------- Write-down of manufacturing facility (a).......... $ 1,500 $ (210) $ (190) $ (210) $ (1,290) $ -- Other fixed asset related charges................. -- -- -- -- -- --
10 11 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) $ -- ======== ======== ======== ======== ======== =========
(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)
BALANCE BALANCE 12/31/98 UTILIZED 9/30/99 -------- --------- -------- 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) $ -- ======= ======= ========
(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 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)
NINE MONTHS ENDED SEPTEMBER 30, 1998 ------------------ (UNAUDITED) Revenue $ 1,424,229 Net loss $ (34,678) Basic EPS $ (0.24) Diluted EPS $ (0.24)
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 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.
(In thousands) SEPTEMBER 30, DECEMBER 31, 1999 1998 ------------- ------------ Buy/(Sell): Japanese Yen $ 20,575 $ -- Japanese Yen (25,335) --
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 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
(In thousands) SEPTEMBER 30, DECEMBER 31, 1999 1998 ------------- -------------- 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 ========= ===========
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 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")."
(In thousands except for per share amounts) THREE MONTHS ENDED SEPTEMBER 30, ---------------------------------------------------------------------------- 1999 1998 ------------------------------------- ----------------------------------- PER-SHARE PER-SHARE INCOME* SHARES+ AMOUNT INCOME* SHARES+ AMOUNT ---------- ------- --------- --------- -------- --------- 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) --------- ---------
- - --------------------------------------- *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 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.
(In thousands except for per share amounts) NINE MONTHS ENDED SEPTEMBER 30, ----------------------------------------------------------------------------------------- 1999 1998 ----------------------------------------- ------------------------------------------ PER-SHARE PER-SHARE INCOME* SHARES+ AMOUNT INCOME* SHARES+ AMOUNT ---------- ------- --------- --------- ------- --------- 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) -------- -------
- - --------------------------------- *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)
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, ------------------------------------------------------------------------------ 1999 1998 1999 1998 ------------ -------------- ------------- -------------- Comprehensive income/(loss) $ 115,935 $ (203,634) $ 53,341 $ (164,800) ============ ============== ============= ==============
NOTE 13 - SEGMENT REPORTING 16 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.
(IN THOUSANDS) THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 1999 SEPTEMBER 30, 1999 ------------------------------------------------------------------------------------------------ Semiconductor Storage Systems TOTAL Semiconductor Storage Systems TOTAL ------------- --------------- ---------- ------------- --------------- ---------- 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
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, 1998 SEPTEMBER 30, 1998 --------------------------------------------------------------------------------------------------- Semiconductor Storage Systems TOTAL Semiconductor Storage Systems TOTAL ------------- --------------- ------------ ------------- --------------- ------------ 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)
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:
(IN THOUSANDS) SEPTEMBER 30, DECEMBER 31, 1999 1998 ---------- ---------- Assets by segment: Semiconductor $2,830,545 $2,700,295 Storage Systems 144,757 123,510 ---------- ---------- Total assets $2,975,302 $2,823,805 ========== ==========
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 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 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 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 20 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. 21 22 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 22 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:
THREE MONTHS ENDED NINE MONTHS ENDED SEPTEMBER 30, SEPTEMBER 30, -------------------------------------------------------------------- 1999 1998 1999 1998 -------------- ------------------- ----------------- -------------- 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%)
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. 23 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. 24 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. 25 26 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 26 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); 27 28 - 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: 28 29 - 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 29 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. 30 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. 31 32 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. 32 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 34 INDEX TO EXHIBITS EXHIBIT NUMBER DESCRIPTION - - ------ ----------- 10.46 Technology Transfer Agreement 27.1 Financial Data Schedule 34 EX-10.46 2 TECHNOLOGY TRANSFER AGREEMENT 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 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 38 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. 39 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. 40 5 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. 41 6 (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. 42 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. 43 8 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 44 9 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] 45 10 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 46 11 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, 47 12 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 48 13 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: 49 14 (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. 50 15 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] 51 16 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 52 17 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 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] 54 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 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 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 57 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 58 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 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 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. 61 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 62 27 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] 63 28 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 64 29 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. 65 30 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] 66 31 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 67 32 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 68 33 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 69 34 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 70 35 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) 71 36 /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 37 FIRST SCHEDULE [REDACTED] SECOND SCHEDULE [REDACTED] 73 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 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 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 76 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. 77 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 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 79 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. 80 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. 81 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. 82 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. 83 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. 84 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. 85 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. 86 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 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.
WORDS MEANINGS ----- -------- 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.
88 53
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.
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. 89 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:- 90 55 - 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. 91 56 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. 92 57 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. 93 58 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. 94 59 - 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. 95 60 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. 96 61 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. 97 62 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". 98 63 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. 99 64 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. 100 65 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. 101 66 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. 102 67 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. 103 68 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. 104 69 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. 105 70 (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. 106 71 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. 107 72 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. 108 73 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 109 74 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. 110 75 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. 111 76 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. 112 77 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. 113 78 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 114 79 - 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. 115 80 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. 116 81 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 117 82 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 118 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 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] 120 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 121 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] 122 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 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 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] 125 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 -------------------------------- -------------------------------- 126 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 EX-27.1 3 FINANCIAL DATA SCHEDULE
5 1,000 9-MOS DEC-31-1999 JAN-01-1999 SEP-30-1999 185,977 271,010 377,205 (7,451) 217,489 1,151,953 2,310,306 (1,013,126) 2,975,302 531,634 0 0 0 1,473 1,625,127 2,975,302 1,504,588 1,504,588 942,074 942,074 451,926 0 (29,604) 92,185 26,420 65,765 0 0 (91,774) (26,009) (0.18) (0.17)
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