1
EXHIBIT 10.1
WAFERTECH, LLC
ASSIGNMENT AND ASSUMPTION AGREEMENT
THIS ASSIGNMENT AND ASSUMPTION AGREEMENT is made as of January 21, 1999 by
and between Analog Devices, Inc., a Massachusetts corporation ("ADI"), and TSMC
Development, Inc., a Delaware corporation ("TSMC").
WHEREAS, ADI and TSMC are members of WaferTech, LLC, a Delaware limited
liability company (the "Company"), and parties to the Second Amended and
Restated Limited Liability Company Agreement of WaferTech, LLC dated as of
October 28, 1997 (the "LLC Agreement");
WHEREAS, ADI proposes to transfer to TSMC a Nine Percent (9%) Membership
Interest in the Company, corresponding to Twenty Million Two Hundred Fifty
Thousand (20,250,000) Preferred Shares (the "Interest");
WHEREAS, the Preferred Members have unanimously consented to the transfer
of the Interest by ADI to TSMC pursuant to a Unanimous Written Consent dated
November 30, 1998;
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which are hereby acknowledged, the parties hereby agree as
follows:
1. CAPITALIZED TERMS
Capitalized terms not otherwise defined in this Agreement have the
meanings assigned to them in the LLC Agreement.
2. ASSIGNMENT AND ASSUMPTION
In consideration of (i) the payment of the purchase price in the
amount of Sixty-Seven Million Five Hundred One Thousand One Hundred Fifty-Three
United States Dollars (U.S.$67,501,153) (the "Purchase Price") by TSMC to ADI as
provided herein and (ii) the assumption by TSMC of the obligations associated
with the Interest as set forth in the LLC Agreement and Purchase Agreement, ADI
hereby irrevocably assigns, transfers and conveys to TSMC all right, title and
interest in and to, and all benefits and burdens of the ownership of, the
Interest. TSMC hereby assumes the obligations associated with the Interest as
set forth in the LLC Agreement and Purchase Agreement.
2
3. PAYMENT
TSMC shall pay the Purchase Price to ADI by the transfer of
immediately available funds denominated in U.S. dollars for value before 2:00
p.m. EST January 29, 1999 to the following account:
Analog Devices, Inc.
BankBoston
Boston, Massachusetts
Account No. 521-79901
SWIFT No. FNBBUS33
The assignment and assumption contemplated by Section 2 of this Agreement shall
become effective immediately upon receipt by ADI of the full amount of the
Purchase Price in the above mentioned account. Upon receipt of the Purchase
Price, ADI shall deliver to TSMC a written receipt therefor in the form of
Exhibit A attached hereto.
4. ADI'S REPRESENTATIONS AND WARRANTIES.
ADI hereby represents and warrants to TSMC that:
(i) ADI has the full right, power, and authority to execute this
Agreement and to sell the Interest to TSMC.
(ii) The Interest is owned by ADI free and clear of any and all liens,
encumbrances, charges, assessments and restrictions (other than restrictions on
transfer imposed by the LLC Agreement and restrictions on transfer generally
imposed on securities under Federal or state securities laws).
(iii) Upon transfer of the Interest to TSMC pursuant to this
Agreement, TSMC will, as a result, receive good title to the Interest, free and
clear of any and all liens, encumbrances, claims, charges, assessments, and
restrictions (other than restrictions on transfer imposed by the LLC Agreement
and restrictions on transfer generally imposed on securities under Federal or
state securities laws).
(iv) All corporate action on the part of ADI, its directors and
stockholders necessary for the authorization, execution, delivery and
performance by ADI of this Agreement has been taken.
(v) The execution, delivery and performance of and compliance with
this Agreement and the sale of the Interest hereunder will not result in any
violation of, or conflict with, or constitute a default under, ADI's charter or
bylaws or any of ADI's material agreements (including but not limited to the LLC
Agreement), or
-2-
3
result in the creation of any mortgage, pledge, lien, encumbrance or charge upon
the Interest being transferred.
(vi) No consent, approval or authorization of, or designation,
declaration or filing with, any governmental authority on the part of ADI is
required in connection with the valid execution and delivery of this Agreement,
the sale of the Interest hereunder or the consummation of any other transaction
contemplated hereby.
(vii) (a) ADI has consulted its own independent tax advisors with
respect to the transactions contemplated by this Agreement to the extent it
deemed necessary and advisable; (b) ADI is not relying in any respect on
WaferTech or any Managing Member, employee or other agent or representative of
WaferTech to provide any advice with respect to the Federal, state, local or
foreign tax consequences of the transactions contemplated hereby; and (c) ADI
shall bear its own tax consequences, if any, associated with the transactions
contemplated hereby and shall not seek any reimbursement in connection with any
such tax consequences from TSMC, WaferTech or any of their affiliates.
5. TSMC'S REPRESENTATIONS AND WARRANTIES.
TSMC hereby represents and warrants to ADI that:
(i) TSMC has the full right, power, and authority to execute this
Agreement and to purchase the Interest from ADI.
(ii) TSMC understands and acknowledges that any further transfer of
the Interest by TSMC is restricted under the LLC
Agreement.
(iii) TSMC is acquiring the Interest for its own account for
investment, and not with a view to distribution.
6. EFFECT ON ANCILLARY AGREEMENTS.
The parties acknowledge and agree that the transfer of the Interest
pursuant to this Agreement will affect the Percentage Interests of ADI and TSMC
and, consequently, their respective rights and obligations under the Purchase
Agreement, as well as their respective rights and obligations under the LLC
Agreement, including under Section 19.2 thereof with respect to Future Purchase
Agreements.
-3-
4
7. MISCELLANEOUS.
(a) FURTHER ASSURANCES. Each of the parties agrees to promptly execute
and deliver any and all further agreements, documents, or instruments necessary
to effectuate this Agreement and the transaction referred to herein or
reasonably requested by the other party to perfect or evidence its rights
hereunder.
(b) SURVIVAL OF REPRESENTATIONS AND WARRANTIES. The representations
and warranties contained in this Agreement shall survive the transfer of the
Interest made pursuant to this Agreement.
(c) COUNTERPARTS. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original and all of which taken
together shall constitute one and the same instrument, binding on the parties,
and the signature of any party to any counterpart shall be deemed a signature
to, and may be appended to, any other counterpart.
(d) GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the laws of the State of Delaware.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
date set forth above.
ANALOG DEVICES, INC.
By: /s/ Joseph E. McDonough
-----------------------
Name Joseph E. McDonough
Its______________________________
TSMC DEVELOPMENT, INC.
By: /s/ Morris Chang
-----------------------
Name Morris Chang
Its______________________________
-4-
5
Exhibit A
RECEIPT
Analog Devices, Inc. ("ADI") hereby acknowledges receipt of the sum of
Sixty-Seven Million Five Hundred One Thousand One Hundred Fifty-Three United
States Dollars (U.S$67,501,153) from TSMC Development, Inc. ("TSMC")
constituting full payment of the purchase price payable under the Assignment and
Assumption Agreement between ADI and TSMC dated as of January 21, 1999.
Accordingly the transfer of the Interest contemplated by the aforesaid
Assignment and Assumption Agreement is effective as of the date hereof.
IN WITNESS WHEREOF, this Receipt has been executed as of the date set
forth below.
Date: January 29, 1999 ANALOG DEVICES, INC.
By: /s/ Joseph E. McDonough
-----------------------
Name Joseph E. McDonough
Its______________________________
-5-