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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote omissions.
Dated this 30th day of January 1996
Between
CHARTERED SEMICONDUCTOR MANUFACTURING LTD
And
ANALOG DEVICES B.V.
-----------------------------------------
DEPOSIT AGREEMENT
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote omissions.
DEPOSIT AGREEMENT
THIS AGREEMENT is made the 30th day of January 1996 by and between-:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company
incorporated in Singapore with its registered office at 60
Woodlands Industrial Park D Street 2, Singapore 738406
(hereinafter referred to as "CSM"); and
(2) ANALOG DEVICES B.V., a Netherlands corporation with its
principal place of business at Beneluxweg 27, 4904 SJ
Oosterhout, The Netherlands (hereinafter referred to as
"Customer").
WHEREAS:
(A) CSM is engaged primarily in the business of the development,
manufacturing, assembly, marketing and selling of
semiconductors, with its 2 wafer fabrication facilities
situated in Singapore. CSM intends to establish a third wafer
fabrication facility in Singapore.
(B) Customer desires to deposit certain funds with CSM to enable
CSM to procure increased wafer fabrication capacity and to make
available to Customer certain wafer manufacturing capacity, on
the terms and conditions of this Agreement.
IT IS HEREBY AGREED as follows:-
1. THE DEPOSIT
1.1 In consideration of CSM agreeing to make available to Customer
certain wafer manufacturing capacity, Customer will deposit
with CSM the sum of US$20,000,000 (the "Deposit") on such dates
and in such amounts as specified in Annex A.
1.2 The Deposit shall be paid by telegraphic transfer to an account
designated by CSM and such Deposit shall be maintained by
Customer to the full amount required in accordance with Annex
A, up to a maximum amount of US$20,000,000 during the term of
this Agreement.
1.3 Immediately upon the expiry of the term of this Agreement or
the earlier termination thereof in accordance with Clause 6 or
Clause 7.2, CSM will return to Customer the Deposit, without
interest and subject
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Securities and Exchange Commission.
Asterisks denote omissions.
to any deductions made by CSM pursuant to the terms of this
Agreement.
2. CSM SUPPLY COMMITMENT
2.1 In consideration of the payment of the Deposit by Customer and
Customer's maintenance of the full deposit amount required in
accordance with Annex A with CSM, CSM will make available to
Customer, wafer manufacturing capacity for ********************
****************** in each calendar quarter commencing from the
****************************** until the expiry or the earlier
termination of the term of this Agreement, in such quantities
as set out in Annex B (the "CSM Supply Commitment").
2.2 The Parties agree that the technology mix of the CSM Supply
Commitment for each calendar month will be in direct proportion
to the technology mix of CSM's total wafer output to customers
in such months.
Example
-------
If CSM's total wafer output in a month is ****** wafers and the
CSM Supply Commitment to Customer constitutes *** of CSM's
total wafer output, then the wafer capacity committed by CSM to
Customer shall be in the following mix:-
****************** ****************************
************* ***
************** ***
************** ***
************* ****
2.3 Unless otherwise expressly provided in this Agreement, the sale
of wafers by CSM to Customer, the capacity of which is made
available to Customer under this Agreement, shall be governed
by the terms and conditions of CSM's foundry agreement entered
into by CSM and Customer (the "Foundry Agreement").
2.4 CSM reserves the right to adjust the pricing of wafers to be
supplied by CSM from time to time depending on ***************
***************************************, Provided however that
CSM shall give Customer not less than ********* prior written
notice of such adjustment. In any event, the price of wafers
supplied to Customer shall be no more than ** above CSM's
pricing for similar
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Securities and Exchange Commission.
Asterisks denote omissions.
products and processes and similar quantities available to
CSM's equity investors.
3. CUSTOMER LOADING COMMITMENT
3.1 Customer agrees to place purchase orders with CSM for such
quantity of ********************************************) for
delivery during the calendar quarters set out in Annex B (the
"Customer Loading Commitment"). The quantity of wafers for
which orders are placed by Customer is hereinafter referred to
as the "Customer Actual Loading."
3.2 The Customer Actual Loading for each calendar quarter during
the term of the Agreement shall be equal to the Customer
Loading Commitment. In addition, the month to month variation
in the Customer Actual Loading shall not exceed *** without the
prior written approval of CSM.
3.3 Notwithstanding the provisions of Clause 3.2, CSM agrees to
waive payment of liquidated damages under Clause 4 if the
Customer Actual Loading for any calendar quarter is in
aggregate not less than *** of the Customer Loading Commitment
for that quarter.
4. LIQUIDATED DAMAGES
4.1 The Parties acknowledge that in the initial period, CSM and
Customer would work together to qualify Customer's products at
CSM's wafer fabrication facility. Accordingly, the provisions
of Clause 4 for the payment of liquidated damages shall be
effective in respect of the CSM Supply Commitment and the
Customer Loading Commitment from the *************************.
In addition, CSM shall not be liable for any losses or damages
whatsoever incurred by Customer in the event that CSM fails to
deliver the Customer Actual Loading for the period prior to the
******************************.
4.2 In the event that the Customer Actual Loading for any calendar
quarter is less than *** of the Customer Loading Commitment for
that quarter, Customer shall pay to CSM liquidated damages
calculated based on the shortfall from **** of the Customer
Loading Commitment for that quarter, *************************.
The formula for calculation of such liquidated damages shall
be as follows:-
*******************************************************
***********************************************************
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Securities and Exchange Commission.
Asterisks denote omissions.
4.3 In the event that CSM fails to deliver at least **** of the
Customer Actual Loading for any calendar quarter, CSM shall pay
to Customer liquidated damages calculated based on the
shortfall from **** of the Customer Actual Loading, **********
**********************. The formula for calculation of such
liquidated damages shall be as follows:-
**************************************************
**************************************************
4.4 CSM and Customer agree and acknowledge that the amount payable
as liquidated damages pursuant to Clauses 4.2 and 4.3 is a
genuine preestimate of the loss which would be suffered by the
non-defaulting Party as a consequence of the failure of the
defaulting Party to fulfill its respective obligations under
Clauses 2 and 3 of this Agreement.
4.5 CSM and Customer each agrees that their respective liability,
in CSM's case to fulfill the CSM Supply Commitment under Clause
2 and in Customer's case to fulfill the Customer Loading
Commitment under Clause 3, ***********************************
***********************************************************,
and that neither Party shall be liable for any indirect,
special or consequential damages even if such Party had or
should have had any knowledge, actual or constructive, of the
possibility of such damages.
5. SET OFF AND MAINTENANCE OF DEPOSIT
5.1 CSM shall be entitled to deduct from and set-off against the
Deposit, the following sums due from Customer:-
(a) the amount of liquidated damages as they fall due pursuant
to Clause 4; and
(b) any payment falling due and remaining unpaid under the
Foundry Agreement.
5.2 At the end of each calendar quarter, CSM shall issue a written
notice to Customer stating the amount of the liquidated damages
and/or overdue payments and Customer shall pay the relevant sum
to CSM so as to maintain the Deposit at the amount required in
accordance with Annex A, within 30 days of the date of such
notice.
5.3 CSM's right of deduction and set-off pursuant to Clause 5.2
shall be in addition to CSM's right to claim the aforesaid
liquidated damages and overdue payments separately as a debt
due from Customer and shall not in any way prejudice such right
or any other rights or remedies which CSM may have at law or in
equity.
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Confidential Materials omitted and filed separately with the
Securities and Exchange Commission.
Asterisks denote omissions.
6. TERM AND TERMINATION
6.1 The term of this Agreement shall expire on **************** and
may be earlier terminated in the following events:-
(a) At the option of CSM, ***********************************
*********************** of the amount required in
accordance with Annex A and Customer fails to make payment
of the shortfall up to the amount required in accordance
with Annex A to CSM within the period set out in Clause
5.2;
(b) At the option of CSM, in the event that the Customer
Actual Loading is in aggregate less than *** of the
Customer Loading Commitment for ** consecutive calendar
months;
(c) At the option of Customer, in the event that CSM fails to
deliver to Customer in aggregate at least 50% of the
Customer Actual Loading for 12 consecutive calendar
months;
(d) At the option of either Party, in any of the following
events:-
(i) the inability of the other Party to pay its debts in
the normal course of business; or
(ii) the other Party ceasing or threatening to cease
wholly or substantially to carry on its business,
otherwise than for the purpose of a reconstruction
or amalgamation without insolvency; or
(iii) any encumbrancer taking possession of or a receiver,
manager, trustee or judicial manager being appointed
over the whole or any substantial part of the
undertaking, property or assets of the other Party;
or
(iv) the making of an order by a court of competent
jurisdiction or the passing of a resolution for the
winding-up of the other Party or any company
controlling the other Party, otherwise than for the
purpose of a reconstruction or amalgamation without
insolvency.
6.2 Termination of the Agreement pursuant to Clause 6.1 shall take
effect immediately upon the issue of a written notice to that
effect by the Party terminating the Agreement to the other. The
termination of this Agreement howsoever caused shall be without
prejudice to any obligations or rights of either Party which
have accrued prior to such termination and shall not affect any
provision of this Agreement which
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Securities and Exchange Commission.
Asterisks denote omissions.
is expressly or by implication provided to come into effect on
or to continue in effect after such termination.
7. FORCE MAJEURE
7.1 CSM's obligation to provide the CSM Supply Commitment and
Customer's obligation to place purchase orders in accordance
with the terms of this Agreement shall be suspended upon the
occurrence of a force majeure event such as act of God, flood,
earthquake, fire, explosion, act of government, war, civil
commotion, insurrection, embargo, riots, lockouts, labour
disputes affecting CSM or Customer as the case may be, for such
period as such force majeure event may subsist. Upon the
occurrence of a force majeure event, the affected Party shall
notify the other Party in writing of the same and shall by
subsequent written notice after the cessation of such force
majeure event inform the other Party of the date on which that
Party's obligation under this Agreement shall be reinstated.
7.2 Notwithstanding anything in this Clause 7, upon the occurrence
of a force majeure event affecting either Party, and such force
majeure event continues for a period exceeding 6 consecutive
months without a prospect of a cure of such event, the other
Party shall have the option, in its sole discretion, to
terminate this Agreement. Such termination shall take effect
immediately upon the written notice to that effect from the
other Party to the Party affected by the force majeure event.
8. **********************
8.1 ***************** that it has the ************************ the
use of the ****** provided by ******** and ********* provided
by ******** and hereby ****************************** the
aforesaid ****** and ********* for the performance of its
obligations under this Agreement and the Foundry Agreement.
8.2 ******** shall ***********************************************
**************************************************************
otherwise provided by ************************ for the
performance of its obligations under this Agreement **********
******************************************* including, without
limitation, any **********************************************
************************ from the use of any *****************
*********************.
8.3 CSM shall notify Customer of any claim of infringement or of
commencement of any suit, action, or proceedings alleging
infringement of any intellectual property rights of any third
party
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Securities and Exchange Commission.
Asterisks denote omissions.
forthwith after receiving notice thereof. Customer shall have
the right in its sole discretion and at its expense to
participate in the defence of any such claim, suit, action or
proceedings and in any and all negotiations with respect
thereto. In addition, Customer shall be entitled to produce
written documentation evidencing the existence of a valid
cross-licensing agreement between Customer and such third party
claiming infringement.
8.4 *** shall ****************************************************
***************************** pursuant to this Agreement *****
********************************** for the performance of its
obligations under this Agreement ****************************
**************************************************************
************.
8.5 Customer shall notify CSM of any claim of infringement or of
commencement of any suit, action, or proceedings alleging
infringement of any intellectual property rights of any third
party forthwith after receiving notice thereof. CSM shall have
the right in its sole discretion and at its expense to
participate in the defence of any such claim, suit, action or
proceedings and in any and all negotiations with respect
thereto.
8.6 ********************** that in the event that ****************
********* including without limitation, **********************
*************** in respect of any of *************************
in the performance of its obligations under this Agreement,
**************************************************************
**************************************************************
**************************************************************
there shall be ************* of the *********************** to
the extent that **********************************************
**************************************************************
************.
9. CONFIDENTIALITY
9.1 All Confidential Information shall be kept confidential by the
recipient unless or until the recipient Party can reasonably
demonstrate that any such Confidential Information is, or part
of it is, in the public domain through no fault of its own,
whereupon to the extent that it is in the public domain or is
required to be disclosed by law this obligation shall cease.
For the purposes of this Agreement, "Confidential Information"
shall mean all communications between the Parties, and all
information and other materials supplied to or received by
either of them from the other (a) prior to or on the date of
this Agreement whether or not marked confidential; (b) after
the date of this Agreement which is
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marked confidential with an appropriate legend, marking, stamp
or other obvious written identification by the disclosing
Party, and (c) all information concerning the business
transactions and the financial arrangements of the Parties with
any person with whom any of them is in a confidential
relationship with regard to the matter in question coming to
the knowledge of the recipient.
9.2 The Company and the Parties shall take all reasonable steps
to minimize the risk of disclosure of Confidential Information,
by ensuring that only they themselves and such of their
employees and directors whose duties will require them to
possess any of such information shall have access thereto, and
will be instructed to treat the same as confidential.
9.3 The obligation contained in this Clause shall endure, even
after the termination of this Agreement, for a period of **
years from the date of receipt of the Confidential Information
except and until such Confidential Information enters the
public domain as set out above.
10. NOTICES
10.1 Addresses
---------
All notices, demands or other communications required or
permitted to be given or made under or in connection with this
Agreement shall be in writing and shall be sufficiently given
or made (a) if delivered by hand or commercial courier or (b)
sent by pre-paid registered post or (c) sent by legible
facsimile transmission (provided that the receipt of such
facsimile transmission is confirmed and a copy thereof is sent
immediately thereafter by pre-paid registered post) addressed
to the intended recipient at its address or facsimile number
set out below. A Party may from time to time notify the others
of its change of address or facsimile number in accordance with
this Clause.
CSM
---
60 Woodlands Industrial Park D
Street 2
Singapore 738406
Facsimile no: (65) 362 2908
Attn: The President
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Customer
--------
Bay F-1
Raheen Ind. Estate
Limerick, Ireland
Telefax no: (353) 613 08448
Attn: Managing Director
With Copy to:-
Analog Devices Inc.
One Technology Way
P.O. Box 9105
Norwood
MA 02062 - 9106
United States of America
Telefax no: (617) 461 4100
Attn: Vice President & General Manager
10.2 Deemed Delivery
---------------
Any such notice, demand or communication shall be deemed to
have been duly served (a) if delivered by hand or commercial
courier, or sent by pre-paid registered post, at the time of
delivery; or (b) if made by successfully transmitted facsimile
transmission, at the time of dispatch (provided that the
receipt of such facsimile transmission is confirmed and that
immediately after such dispatch, a copy thereof is sent by
pre-paid registered post).
11. WAIVER AND REMEDIES
11.1 No delay or neglect on the part of either Party in enforcing
against the other Party any term or condition of this Agreement
or in exercising any right or remedy under this Agreement shall
either be or be deemed to be a waiver or in any way prejudice
any right or remedy of that Party under this Agreement.
11.2 No remedy conferred by any of the provisions of this Agreement
is intended to be exclusive of any other remedy which is
otherwise available at law, in equity, by statute or otherwise
and each and every other remedy shall be cumulative and shall
be in addition to every other remedy given hereunder or now or
hereafter existing at law, in equity, by statute or otherwise.
The election of any one or more of such remedies by either of
the Parties hereto shall not constitute a waiver by such Party
of the right to pursue any other available remedy.
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Securities and Exchange Commission.
Asterisks denote omissions.
12. SEVERANCE
If any provision or part of this Agreement is rendered void,
illegal or unenforceable in any respect under any enactment or
rule of law, the validity, legality and enforceability of the
remaining provisions shall not in any way be affected or
impaired thereby.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire agreement between CSM and
Customer and shall supersede all previous agreements and
undertakings between Parties with respect to the subject matter
hereof, Provided however that the *****************************
***************************************************************
*********** shall remain in full force and effect in accordance
with the terms therein.
14. ARBITRATION AND GOVERNING LAW
14.1 Except as otherwise expressly provided hereunder any dispute or
controversy arising in connection with this Agreement which
cannot be settled by mutual or amicable agreement shall be
finally settled under the rules of Conciliation and Arbitration
of the International Chamber of Commerce by one or more
arbitrators appointed in accordance with those rules. The place
of arbitration shall be London. The arbitration shall be
conducted in English.
14.2 This Agreement shall be governed by the substantive laws of
Singapore.
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IN WITNESS WHEREOF the Parties have hereunto entered into this
Agreement the date first above written.
Signed by TAN BOCK SENG )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
in the presence of :- ) __________________________
--------------------------------
Name
Signed by __________, ____________ )
ANALOG DEVICES B.V. )
in the presence of :- )__________________________
--------------------------------
Name
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Securities and Exchange Commission.
Asterisks denote omissions.
ANNEX A
Payment Schedule
----------------
************* *****************
************* *****************
************* *****************
************* *****************
************* *****************
ANALOG DEVICES B.V.
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the Securities and Exchange Commission.
Asterisks denote omissions.
ANNEX B
CSM SUPPLY COMMITMENT
---------------------
CUSTOMER LOADING COMMITMENT
---------------------------
Number of ****************************
**** **** **** **** **** **** **** **** ************
******
*** ***** ***** ***** ***** ***** ***** ***** *****
ANALOG DEVICES B.V.