EXHIBIT 10.41
AMENDMENT AGREEMENT (NO. 1)
THIS AMENDMENT AGREEMENT (NO. 1) is made the __________ day of ______________
1997, by and between:-
(1) [*]; and
(2) LEVEL ONE COMMUNICATIONS INCORPORATED, a company incorporated in California
and having its place of business at 0000 Xxxxxx Xxxx, Xxxxxxxxxx, XX 00000,
Xxxxxx Xxxxxx of America ("Customer").
WHEREAS
(A) [*] and Customer had entered into a Deposit Agreement dated 9 November 1995
(the "Deposit Agreement") for the purpose of Customer depositing certain
funds with [*] and to procure [*] to make available to Customer certain
wafer manufacturing capacity.
(B) [*] and Customer hereto are entering into this Amendment Agreement to vary
the Deposit Agreement with effect from the date hereof.
NOW THEREFORE, in consideration of the foregoing and the mutual covenants
contained herein, the parties agree as follows:
1. INTERPRETATION
All terms and references used in the Deposit Agreement and which are
defined or construed in the Deposit Agreement but are not defined or
construed in this Amendment Agreement shall have the same meaning and
construction in this Amendment Agreement.
2. AMENDMENT TO THE DEPOSIT AGREEMENT
The Parties agree that with effect from the date of this Amendment
Agreement, the Deposit Agreement shall be amended as follows:-
2.1 CLAUSE 1.3 (THE DEPOSIT)
------------------------
The entire Clause 1.3 shall be deleted in its entirety and replaced
with the following:-
"1.3 Upon the expiry of the term of this Agreement or the earlier
termination thereof in accordance with Clause 5 or Clause 6.2, [*]
[*] Confidential treatment has been requested with respect to the information
contained within the "[*]" markings. Such marked portions have been
omitted from this filing and have been filed separately with the Securities
and Exchange Commission.
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will return to Customer the Deposit, without interest and subject to
any deductions [*] pursuant to the terms of this Agreement."
2.2 CLAUSE 2 ([*] SUPPLY COMMITMENT)
--------------------------------
i) The words "second calendar quarter of 1996" appearing in the fifth
line of Clause 2.1 shall be deleted and the words "first calendar
quarter of 1997" substituted therefor.
ii) The word "Clause 8.6" appearing at the third line of Clause 2.4 shall
be deleted and the word "Clause 7.6" substituted therefor.
2.3 CLAUSE 3.3 (CUSTOMER LOADING COMMITMENT)
----------------------------------------
Clause 3.3 shall be deleted in its entirety.
2.4 [*]
2.5 CLAUSE 5 (SET OFF AND MAINTENANCE OF DEPOSIT)
---------------------------------------------
The provisions of Clause 5 shall be amended as follows:-
i) by renumbering the heading "5." as "4.".
ii) by deleting Clause 5.2 in its entirety and replacing it with the
following new Clause 4.1:-
"4.1 [*] shall be entitled to deduct from and set-off against the
Deposit, any payment falling due and remaining unpaid by Customer
under the Foundry Agreement."
iii) by deleting Clause 5.1 in its entirety and replacing it with the
following new Clause 4.2:-
"4.2 At the end of each calendar quarter, [*] shall issue a written
notice to Customer stating the amount of the
[*] Confidential treatment has been requested with respect to the information
contained within the "[*]" markings. Such marked portions have been
omitted from this filing and have been filed separately with the Securities
and Exchange Commission.
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overdue payments and Customer shall pay the relevant sum to [*]
within 30 days of the date of such notice, so as to maintain the
Deposit at [*].
(iv) by renumbering Clause 5.3 as Clause "4.3"; by deleting the word
"Clause 5.2" appearing in the first line and substituting the word
"Clause 4.2" therefor; and by deleting the words [*] appearing in the
second line.
(v) by inserting the following new Clause 4.4:-
(a)
[*]
"A" means such quantity of the aggregate Customer Actual
Loading for the calendar year which is less than or
equal to 50% of the aggregate Customer Loading
Commitment for the calendar year.
"C" means the aggregate Customer Loading Commitment for the
calendar year.
[*] Confidential treatment has been requested with respect to the information
contained within the "[*]" markings. Such marked portions have been
omitted from this filing and have been filed separately with the Securities
and Exchange Commission.
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(b) [*]
"A" means such quantity of the aggregate Customer Actual
Loading for the calendar year if Customer exceeds 50%
of the aggregate Customer Loading Commitment for the
calendar year.
"HC" means 50% of the aggregate Customer Loading Commitment
for the calendar year
"C" means the aggregate Customer Loading Commitment for the
calendar year.
[*]
2.6 CLAUSE 6 (TERM AND TERMINATION)
-------------------------------
The provisions of Clause 6 shall be amended as follows:-
i) By renumbering the heading "6." as "5.".
ii) By renumbering Clause "6.1" as Clause "5.1".
iii) By deleting sub-clause 6.1(a) in its entirety and replacing it
with the following new sub-clause 6.1(a):-
"(a) At the option of [*], in the event that the amount of the
Deposit falls below 50% of [*] and Customer fails to make
payment of the shortfall to [*] within the period set out in
Clause 4.1."
iv) By renumbering Clause "6.1" as Clause "5.2"; and by deleting the
word "Clause 6.1" appearing in the first line and substituting
the word "Clause 5.1" therefor.
2.7 CLAUSE 7 (FORCE MAJEURE)
------------------------
i) The heading "7." and Clause "7.1" shall be renumbered as "6." and
Clause "6.1" respectively.
ii) Clause "7.2" shall be renumbered as Clause "6.2"; and the word
"Clause 7" appearing in the first line shall be deleted and the
word "Clause 6" substituted therefor.
2.8 CLAUSE 8 (WARRANTY AND INDEMNITY)
---------------------------------
[*] Confidential treatment has been requested with respect to the information
contained within the "[*]" markings. Such marked portions have been
omitted from this filing and have been filed separately with the Securities
and Exchange Commission.
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i) The heading "8." shall be renumbered as "7.".
ii) Clauses "8.1", "8.2", "8.3", "8.4", "8.5" and "8.6" shall be
renumbered as Clauses "7.1", "7.2", "7.3", "7.4", "7.5" and "7.6"
respectively.
2.9 CLAUSE 9 (CONFIDENTIALITY)
--------------------------
The heading "9." and Clauses "9.1", "9.2" and "9.3" shall be
renumbered as "8.", and Clauses "8.1", "8.2" and "8.3" respectively.
2.10 CLAUSE 10 (NOTICES)
-------------------
By amending Clause 10 as follows:-
i) By renumbering the heading "10." as "9.".
ii) By renumbering Clause "10.1" as Clause "9.1" and by deleting the
address and facsimile number for [*] in its entirety and
replacing it with the following:-
[*]
---
iii) By renumbering Clause "10.2" as Clause "9.2".
2.11 CLAUSE 11 (WAIVER AND REMEDIES)
-------------------------------
The heading "11." and Clauses "11.1", and "11.2" shall be renumbered
as "10.", Clauses "10.1" and "10.2" respectively.
2.12 CLAUSE 12 (SEVERANCE)
---------------------
The heading "12." shall be renumbered as "11.".
2.13 CLAUSE 13 (ENTIRE AGREEMENT)
----------------------------
The heading "13." shall be renumbered as "12.".
2.14 CLAUSE 14 (GOVERNING LAW)
-------------------------
The heading "14." shall be renumbered as "13.".
2.15 ANNEX A (PAYMENT SCHEDULE)
--------------------------
[*] Confidential treatment has been requested with respect to the information
contained within the "[*]" markings. Such marked portions have been
omitted from this filing and have been filed separately with the Securities
and Exchange Commission.
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Item 3. Of Annex A shall be deleted in its entirety and replaced with the
following:-
"3. Upon signing of the
Amendment Agreement
(No. 1) to Deposit Agreement [*]
2.16 ANNEX B ([*]
------------
The entire Annex B shall be deleted in its entirety and replaced with
the following:-
"ANNEX B
[*]
---
Number of 8-inch silicon wafers (based on 15 mask level)
(A) [*]
Quarterly
================================================================================
2Q96 3Q96 4Q96 1Q97 2Q97 3Q97 4Q97
through
4Q2000
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--------------------------------------------------------------------------------
[ * ]
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(B) THRESHOLD
================================================================================
1997 1998 1999 2000
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
[ * ]
================================================================================
3. SAVING AND INCORPORATION
3.1 Save as expressly amended by this Amendment Agreement, the terms and
conditions of the Deposit Agreement shall continue to be in full force and
effect in all other respects.
3.2 The Deposit Agreement and this Amendment Agreement shall be construed as
one document and this Amendment Agreement shall be deemed to be part of the
Deposit Agreement. Where the context so permits, references in the Deposit
Agreement and in this Amendment Agreement to "the Deposit Agreement" or
[*] Confidential treatment has been requested with respect to the information
contained within the "[*]" markings. Such marked portions have been
omitted from this filing and have been filed separately with the Securities
and Exchange Commission.
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"this Agreement" shall be read and construed as references to the Deposit
Agreement as amended and supplemented by this Amendment Agreement.
4. GOVERNING LAW
This Amendment Agreement shall be governed by and construed in accordance
with the laws of [*]. The parties hereto irrevocably submit to the non-
exclusive jurisdiction of the courts of [*].
IN WITNESS WHEREOF the Parties have hereunto entered into this Agreement the
date first above written.
[*]
Signed by Xxxx Xxxxx, V.P. and CFO )
LEVEL ONE COMMUNICATIONS )
INCORPORATED )
in the presence of:- ) /s/ Xxxx Xxxxx
------------------------------
/s/ Xxxxx Xxxxxx
----------------------------------
Name: Xxxxx Xxxxxx
General Counsel
[*] Confidential treatment has been requested with respect to the information
contained within the "[*]" markings. Such marked portions have been omitted
from this filing and have been filed separately with the Securities and
Exchange Commission.
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