EXECUTION COPY
EXHIBIT 10.9*
SCG ASSEMBLY AGREEMENT
This SCG Assembly Agreement (this "Agreement") is made this July 31, 1999 (the
"Effective Date") between Motorola, Inc., a Delaware corporation ("Motorola")
and Semiconductor Components Industries, LLC, a Delaware limited liability
company ("SCILLC").
WITNESSETH:
WHEREAS, pursuant to the Reorganization Agreement and the Recapitalization
Agreement, as defined herein, the business and operations of the Semiconductor
Components Group are being reorganized as a "stand alone" business;
WHEREAS, in connection therewith, Motorola, and SCILLC desire that Motorola, as
a foundry, provide SCILLC with certain packaging and testing services (the
"Assembly Services") as set forth herein;
NOW, THEREFORE, SCILLC and Motorola agree to enter this Agreement to accomplish
the foregoing premises in accordance with the following terms and conditions:
1 DEFINITIONS:
1.1 CONFIDENTIAL INFORMATION means any information disclosed by one
party to the other pursuant to this Agreement which is in written,
graphic, machine readable or other tangible form and is marked
Confidential, Proprietary or in some other manner to indicate its
confidential nature. Confidential Information may also include oral
information disclosed by one party to the other pursuant to this
Agreement, provided that such information is designated as
confidential at the time of disclosure and reduced to a written
summary by the disclosing party, within thirty (30) days after its
oral disclosure, which is marked in a manner to indicate its
confidential nature and delivered to the receiving party. Such
Confidential Information includes but is not limited to technical
information transferred hereunder and all copies and derivatives
thereof and information received as a consequence of rendering or
receiving technical assistance, owned or controlled by either party,
which relates to its past, present or future activities with respect
to the subject matter of this Agreement, provided that if such
Confidential Information is disclosed by one of the parties to the
other party in written and/or graphic or model form, or in the form
of a computer program or data base, or any derivation thereof, the
disclosing party must designate it as confidential, in writing, by
an appropriate legend, together with the name of the party so
disclosing it, such as SCILLC Confidential Proprietary or Motorola
Confidential Proprietary Information.
1.2 CONTRACT PRODUCTS means, collectively, those products which are
described in the Schedules to this Agreement.
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* Confidential Information in this Exhibit 10.9 has been omitted
and filed separately with The Securities and Exchange Commission.
1.3 DIE means an individual integrated circuit or components which when
completed create an integrated circuit or component.
1.4 ENVIRONMENTAL LAWS has the meaning ascribed to such term in the
Recapitalization Agreement.
1.5 EQUIPMENT LEASE AND REPURCHASE AGREEMENT means the Equipment Lease
and Repurchase Agreement between Motorola, Inc and Semiconductor
Components Industries, LLC dated as of the date hereof.
1.6 FIRM ORDER has the meaning ascribed to such term in Section 5.1.
1.7 FORCE MAJEURE has the meaning ascribed to such term in Section 5.6.
1.8 FORECAST has the meaning ascribed to such term in Section 5.1.
1.9 HAZARDOUS SUBSTANCES has the meaning ascribed to such term in the
Recapitalization Agreement.
1.10 IP AGREEMENT means the Amended and Restated Intellectual Property
Agreement by and between Motorola, Inc. and Semiconductor Components
Industries, LLC dated as of the date hereof.
1.11 LOGISTICS SCHEDULE means the Logistics Schedule to the Transition
Services Agreement dated as of the date hereof by and between
Motorola, Inc and Semiconductor Components Industries, LLC.
1.12 LONG TERM PRODUCTS has the meaning ascribed to such term in Section
6.3.
1.13 RECAPITALIZATION AGREEMENT means the Agreement and Plan of
Recapitalization and Merger, as amended pursuant to Amendment No. 1
to the Recapitalization Agreement dated July 28, 1999, by and among
Motorola, Inc., SCG Holding Corporation, Semiconductor Components
Industries, LLC, TPG Semiconductor Holdings LLC and TPG
Semiconductor Acquisition Corp made as of May 11, 1999.
1.14 RELEASE has the meaning ascribed to such term in the
Recapitalization Agreement.
1.15 REORGANIZATION AGREEMENT means the Reorganization Agreement by and
among Motorola, Inc., SCG Holding Corporation and Semiconductor
Components Industries, LLC dated as of May 11, 1999.
1.16 SCRAP means any metal piece part, wafer, die or device, in any stage
of completion, without regard to its ability to function, that are
not in conformance with the requirements of this contract for
products to be sold to SCILLC.
1.17 SOW means Appendix A. The SOW contains all currently known die types
that will be fabricated in wafer form, or assembled and/or tested.
The SOW documents die type, historical die yield, planning
cycletime, minimum wafer die
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yield, historical assembly / test yield and assembly / test planning
cycletime. The SOW shall be updated on a quarterly basis or as
mutually agreed.
2 FACTORIES, PRODUCTS AND TERM
2.1 As set forth in Schedule A, Motorola shall provide Assembly Services
for the listed Contract Products for SCILLC at the respective
factories described in Schedule A (the "Factories") through the
respective last start dates at the respective prices.
2.2 Motorola may choose to migrate Assembly Services for a given
Contract Product to a different Factory than shown on Schedule A by
giving SCILLC six months written notice. Motorola shall be
responsible for all out of pocket costs related to such a move
(including any decommissioning, packaging and shipping costs)
provided that SCILLC shall be responsible for costs associated with
customer acceptance of any such move.
3 STATEMENT OF WORK
3.1 During the term of this Agreement, each party agrees to use the data
contained in the SOW to plan and execute the manufacturing agreement
as described herein.
3.1.1 The historical assembly / test yields shall be used by the
planning organizations to rationalize the differences expected
between assembly starts and assembly organizations to provide
the Forecasts and Firm Orders described in Section 5.
3.1.2 The assembly / test planning cycletime is used by SCILLC and
Motorola planning organizations to provide the Forecasts and
Firm Orders described in Section 5.
3.2 All products identified in the SOW are qualified for shipment at
this time. No future qualification requirements or future
qualification testing is required prior to shipment from Motorola to
SCILLC.
3.3 Future product qualification requirements shall be mutually agreed
upon prior to new product introduction, but shall generally conform
to current Semiconductor Product Sector standard specification
12MWS00024b.
3.4 Motorola shall provide all facilities, equipment, material, manpower
and expertise necessary to perform the Assembly Services according
to SCILLC's requirements and specifications as set forth in this
agreement and the appropriate SOW.
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4 PRICE
4.1 Prices shall be based on the actual number of functional assembled
products delivered as set forth in Schedule A.
4.2 Engineering work and materials required for new product introduction
or qualification or major process changes requested by SCILLC will
be billed at actual cost including overhead.
4.3 Rush lots requested by SCILLC and accepted by Motorola will be
billed at 150% of the price agreed upon in Section 4.1. Upside
delivery demands beyond the agreed upon Firm Orders described in
Section 5 requested by SCILLC and accepted by Motorola will be
billed at 125% of the price agreed upon in Section 4.1.
4.4 SCILLC shall provide Motorola with the die used for the Assembly
Services, and such die shall be consigned to Motorola.
4.5 ****************************************************************
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5 ORDER PLACEMENT, DELIVERY AND PAYMENT
5.1 Binding minimum and maximum weekly assembly supply constraints are
set forth on Schedule A. SCILLC shall provide, on a monthly basis, a
rolling 12 month finished goods delivery forecast with anticipated
weekly die run rates. The first 3 months of the finished goods
forecast shall be fixed (the "Firm Orders") and the last 9 months
will be floating (the "Forecast"). The Forecasts will be non-binding
and used solely for planning purposes. The Firm Orders shall act as
purchase orders. As an example, orders for finished goods out for
the month of April would be added to the Firm Order base on January
first. Each new month's Firm Orders shall not be allowed to change
by more than 20% per week from the previous month's run rate without
mutual consent of both parties, which shall not unreasonably be
withheld. SCILLC may request rush status on any production lot, and
if Motorola agrees to this request, the Contract Products will be
billed according to Section 4. In addition, unexpected upside
demands may be requested by SCILLC within the Firm Order window.
Motorola has the option of accepting such orders which will be
billed according to Section 4. SCILLC may request changes to the
device mix within the Firm Order window at any time prior to die
starts, and Motorola shall make reasonable efforts to accommodate
the request, provided that total die starts in a given technology do
not change, and subject to manufacturer material availability (e.g.
piece parts). If mutually agreeable to both SCILLC and Motorola, the
factories may schedule starts above the max or below the min as
shown in Schedule A without penalty. Delivery of die or finished
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* Confidential Information omitted and filed separately with the Securities
and Exchange Commission.
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goods scheduled above the max shall be on a "best-effort" basis and
there shall be no penalty for late or missed deliveries on such
"above max" commitments. This mutual agreement shall be documented
by email from the planning managers of both Motorola and SCILLC, now
envisioned to be Duff Young for Motorola and Xxxxxx Xxxxx for
SCILLC, or their functional replacements in the future. The same two
individuals will also document requests for early termination of
foundry services by email.
5.2 Motorola is required to maintain capacity sufficient to meet the
supply set forth in SCILLC's Firm Orders, subject to the maximum
weekly supply constraints. In the event Firm Orders for any Product
over a monthly period fall below the minimum weekly die supplies for
those Contract Products during that month, SCILLC will be
responsible for Motorola's fixed costs (equal to unit costs minus
material costs, calculated according to Motorola's cost allocation
methodologies as of May 11, 1999) associated with maintaining
capacity to produce the relevant minimum weekly supply, taking into
account any products actually purchased by SCILLC, provided that
Motorola shall take all reasonable steps to limit such fixed costs.
In such an event, SCILLC shall have the right to audit such fixed
costs. In the event SCILLC notifies Motorola that the Firm Orders
are likely to continue to be below the minimum weekly commitments,
the parties shall meet and explore potential solutions to the
shortfall, which may include, subject to mutual consent, a reduction
of the minimum weekly commitments, efforts to reduce fixed costs or
the early termination of the relevant Product line. SCILLC's
liability for the cancellation of any Firm Orders will be limited to
the actual expenses reasonably incurred by Motorola in anticipation
of the Firm Orders, provided that Motorola shall take all reasonable
steps to mitigate any such damages. SCILLC will have no liability
for failure to meet minimum VHVIC order commitments or for the
cancellation of any Firm Orders in the event such failure or
cancellation is due to an adverse outcome in the matter of Power
Integrations v. Motorola.
5.3 If Motorola does not agree to start the die necessary to meet
SCILLC's Firm Orders (on a cumulative basis), even though the die
start volume meets the min-max limits for the Product as set forth
in Schedule A, Motorola will pay SCILLC per die liquidated damages
equal to the gross margin for that Product for the previous fiscal
quarter, once those die starts are delinquent by more than 30 days,
provided that in no case will Motorola be required to pay any such
damages until the total amount of liquidated damages payable under
this contract exceed $50,000.00. No damages will be payable under
this Section if Motorola is unable to start die because such die
have not been provided by SCILLC.
5.4 In the event Motorola has started the die but fails to deliver a
number of functional assembled products equal to 80% of the volume
set forth in the Firm Orders within 30 days of the date specified in
the Firm Orders, the factory manager will initiate best efforts
recovery programs (which may include overtime, rush lots, or
increased starts) and report the recovery plan to the respective
directors of planning and directors of manufacturing at Motorola and
SCILLC. At
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the option of the SCILLC planning organization, the recovery plan
can be declined and the orders cancelled without penalty for either
party.
5.5 In the event Motorola has started the die but fails to deliver a
number of functional assembled products equal to 70% of the volume
set forth in the Firm Orders within 60 days of the date specified in
the Firm Orders, Motorola will be required to pay per unit
liquidated damages (as described below) for the delivery shortfall
below 85% of the ordered amount set forth in relevant Firm Order,
provided that in no case will Motorola be required to pay any such
damages until the total amount of liquidated damages payable under
this contract exceed $50,000.00. Per unit liquidated damages shall
be equal to the gross margin for each of the Contract Products
(equal to the gross margin for that Product for the previous fiscal
quarter.)
5.6 No party will be liable for failure or delay under this Agreement
owing to any cause beyond its control, including, but not limited
to, acts of God, governmental orders or restriction, war, threat of
war, warlike conditions, fire, hostilities, sanctions, revolution,
riot, looting or inability to obtain necessary transportation,
labor, materials or facilities (together, "Force Majeure.") In the
event of Force Majeure, each parties' time for delivery or other
performance will be extended for a period equal to the duration of
the delay caused thereby. If the Force Majeure continues or is
foreseen without question to continue for more than 3 months, the
non-affected party may terminate this Agreement immediately upon
written notice. Motorola will notify SCILLC at the earliest
indication of any interruption in supply of the Contract Products or
other facility difficulty that may affect the availability of
Contract Products under this Agreement.
5.7 Contract Products shall be shipped at the time set forth in the Firm
Orders pursuant to the terms of the Logistics Schedule. Contract
Products shall be billed and title shall pass to SCILLC at shipment,
and risk of loss shall pass to SCILLC upon receipt at the
destination set forth therein. Motorola will be responsible for
compliance with any local laws, including export control laws
related to the manufacture and delivery of the Contract Products.
5.8 Payment terms are net 30 days from the date of invoice. Payments
will be due in U.S. dollars except for products manufactured in
Japan, which will be paid in Yen as set forth in Schedule A.
5.9 The MIN/MAX in KLM for TO-220-5LD (package 0035) assumes successful
qualification of gold bond wires, a new mold and the appropriate
mold components to produce 420 K/week.
5.10 Min and Max volumes in Schedule A shall refer to assembly and/or
test starts and/or outs as follows:
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SITE: OPERATIONS PERFORMED: MIN / MAX REFERS TO:
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KLM Assy & Test Assy Starts
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CHN Assy & Test Assy Starts
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TLS Assy & Test Assy Starts
Test Only Test Outs
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6 OTHER SERVICES
6.1 Motorola shall provide all reasonable support for the Assembly
Services consistent with past practice, industry standards and
Motorola form contracts.
6.2 Motorola shall keep SCILLC apprised of any major planned process
changes or other significant changes relating to the Contract
Products (each as defined by Motorola standard operating procedures
for process changes), and shall not make any such changes without
the consent of SCILLC, which shall not unreasonably be withheld.
Implementation of any process changes consented to by SCILLC shall
be based on Motorola standard operating procedures for process
changes.
6.3 For products with last start dates after the end of 2000 ("Long Term
Products"), Motorola shall cooperate in good faith with any assembly
process related changes reasonably requested by SCILLC, and the
parties shall negotiate in good faith any price adjustments based on
such changes. In the event such negotiations are not successful,
SCILLC may terminate this agreement with respect to any of such Long
Term Products on 3 months written notice.
7 EQUIPMENT
7.1 SCILLC owned equipment used at any of the Factories will be governed
pursuant to the terms of the Equipment Lease and Repurchase
Agreement.
8 WARRANTY
8.1 Motorola warrants that products sold hereunder shall from date of
shipment be free and clear of liens and encumbrances, and for 120
days from date of shipment shall be free from defects in
workmanship. In the event a workmanship defect is discovered,
Motorola agrees at its sole expense to replace or provide a credit
equal to the moneys paid for the affected unit(s) of products,
provided that the provision of a credit or the replacement of
products shall not limit Motorola's obligations to pay liquidated
damages under Section 5.4 and 5.5, hereof, for failure to deliver
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functional die on a timely basis, although such liquidated damages
shall be offset by the amount of any credit paid.
8.2 Motorola shall destroy and properly dispose of all Scrap in order to
prevent any unauthorized sale of any Contract Product, which cannot
be reclaimed. Motorola shall return such Scrap to SCILLC at SCILLC's
request and expense.
8.3 THIS WARRANTY EXTENDS TO SCILLC ONLY AND MAY BE INVOKED ONLY BY
SCILLC FOR ITS CUSTOMERS. MOTOROLA SHALL NOT ACCEPT WARRANTY RETURNS
DIRECTLY FROM SCILLC'S CUSTOMERS OR USERS OF SCILLC'S PRODUCTS.
MOTOROLA DOES NOT WARRANT PRODUCTS REJECTED AS A RESULT OF
RELIABILITY TESTING OR PROCESSING NOT PREVIOUSLY AGREED TO IN
WRITING. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES WHETHER
EXPRESS, IMPLIED OR STATUTORY INCLUDING IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR PARTICULAR PURPOSE. THIS WARRANTY
DOES NOT APPLY TO DEFECTS ARISING AS A RESULT OF SCILLC'S DESIGN,
FORMULA, OR APPLICATION.
8.4 In the event repeated field failures occur with respect to a
Contract Product, or a significant field failure occurs which
requires immediate attention, Motorola and SCILLC will discuss a
solution in good faith. This provision does not expand Motorola's
warranty obligations or any other liabilities beyond those expressly
set forth in this Section or limit Motorola's obligations to pay
damages under Section 5, hereof.
8.5 EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL
MOTOROLA BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL
DAMAGES OF ANY NATURE WHATSOEVER (INCLUDING, WITHOUT LIMITATION,
LOST PROFITS) REGARDLESS OF THE LEGAL THEORY ON WHICH ANY SUCH CLAIM
MAY BE MADE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9 INTELLECTUAL PROPERTY
9.1 Ownership of IP related to the Contract Products will be governed by
the IP Agreement. Other than as set forth therein or as separately
agreed to between the parties in the event of any process change,
the provision of Assembly Services by Motorola does not imply any
transfer of Motorola's intellectual property, technical information,
or know how.
10 TERM
10.1 Last start dates are as set forth on Schedule A. SCILLC may
terminate the agreement with respect to any Contract Products on 6
months written notice.
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10.2 Motorola shall provide reasonable assistance to SCILLC in
transitioning the Assembly Services covered by this Agreement to a
separate facility prior to expiration or termination provided
Motorola shall have personnel available, which services shall be
billed at Motorola's costs, including overhead.
10.3 Motorola's assistance in transitioning the products listed in this
Section 10 may also include training of the relevant employees which
shall be provided at Motorola's facilities and billed at Motorola's
costs, including overhead.
10.4 In the event SCILLC requires a factory to remain open beyond the
planned closure date listed in Schedule A, the price for Assembly
Services will be calculated as follows: (i) if SCILLC becomes the
sole user of a factory after the planned closure dates, then such
price will first be adjusted to cover the factory costs; and (ii)
such price, whether or not adjusted pursuant to (i) above, will
escalate by 10% (without compounding of interest) each month
thereafter, subject to a cap of 200% of the adjusted price. In no
case will SCILLC be liable for any damages set forth in this Section
if Motorola is responsible for the late closure, whether as a result
of Motorola's failure to meet any Firm Orders for the relevant
Product at such factory or at another factory providing the same
services, or as a result of delays in the relocation of any other
facilities in Motorola's control.
11 SITE ACCESS
11.1 Motorola shall allow SCILLC to visit and inspect the facilities upon
reasonable notice during normal business hours, provided that SCILLC
must first obtain Motorola's consent to any such visit, which
consent shall not unreasonably be withheld. Motorola may limit such
site inspections to no more than once per calendar year, except in
the event of any exceptional circumstances, including Motorola's
failure to meet any of its Firm Orders under this agreement.
12 EXPORT CONTROL LAWS
12.1 The parties acknowledge that each must comply with all applicable
rules and laws in the performance of their respective duties and
obligations including, but not limited to, those relating to
restrictions on export and to approval of agreements. Each party
will be responsible for obtaining and maintaining all approvals and
licenses, including export licenses, permits and governmental
authorizations from the appropriate governmental authorities as may
be required to enable such party to fulfill its obligations under
this Agreement. Each party agrees to use its best efforts to the
other in obtaining any such approvals, export licenses, permits or
governmental authorizations.
12.2 Each party agrees that, unless prior written authorization is
obtained from the United States Bureau of Export Administration, it
will not export, re-export, or transship, directly or indirectly,
any products or technical information that would
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be in contravention of the Export Administration Regulations then in
effect as published by the United States Department of Commerce.
13 ENVIRONMENTAL
13.1 Allocation of responsibility for environmental and employee health
and safety liabilities pre-dating the Closing shall be covered by
the terms of the Recapitalization Agreement.
13.2 Subject to the obligations of the parties set forth in the
Recapitalization Agreement with respect to Environmental
Liabilities, including Pre-Closing Liabilities, each as defined
therein, Motorola agrees to indemnify SCILLC for claims/liabilities
relating to Motorola's operations pursuant to this Agreement
involving the Release of Hazardous Substances, or non-compliance
with Environmental Laws.
13.3 Motorola acknowledges that it is responsible for complying, and
agrees that it will comply in all material respects, with applicable
Environmental Laws, including those relating to worker health and
safety, the Release of Hazardous Substances, and the management,
storage, treatment, recycling or disposal of any waste generated as
a result of its operations pursuant to this Agreement. Motorola
acknowledges that it is the owner and generator of waste generated
from its activities pursuant to this Agreement.
14 ASSIGNMENT
14.1 This Agreement shall be binding upon, inure to the benefit of, and
be enforceable by or against the parties hereto and their respective
successors and assigns; provided, however, that neither party hereto
may assign this Agreement without the prior written consent of the
other (which consent shall not unreasonably be withheld) except to a
party that acquires all or substantially all of the assets of the
assigning party or for the account of the lenders providing bank
financing solely and specifically for the purpose of securing such
bank financing in connection with the Recapitalization Agreement and
the transactions contemplated thereby.
15 CONFIDENTIALITY
15.1 Each party will treat as confidential all Confidential Information
of the other party in accordance with the terms of the IP Agreement.
16 NOTIFICATION
16.1 Unless otherwise indicated herein, all notices, requests, demands or
other communications to the respective parties hereto shall be
deemed to have been given or made when deposited in the mails,
registered mail, return receipt
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requested, postage prepaid, or by facsimile to the respective party
at the following address:
If to Motorola for Motorola, Inc.
Technical 0000 Xxxxxxx Xxxxxx Xxxxx Xxxx
Matters: Xxxxxx, Xxxxx 00000
Facsimile Number: (000) 000-0000
Attn: Xxx Xxxx
If to Motorola: Motorola, Inc.
Law Department
0000 X. Xxxxxxxxx Xxxx
Xxxxxxxxxx, Xxxxxxxx 00000
Facsimile Number: (000) 000-0000
Attn: General Counsel
and to Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, Xxxxxxxx 00000
Facsimile Number:(000) 000-0000
Attn: Xxxxx X. Xxxxx, Esq.
If to SCILLC: SCG Holding Corporation
0000 X. XxXxxxxx Xxxx
Xxxxxxx, Xxxxxxx 00000
Facsimile Number: (000) 000-0000
Attn: Xxxxx Xxxxxxxx
With copies to: Xxxxx Xxxxxxx
Texas Pacific Group
000 Xxxxxxxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxxxxxxx, Xxxxxxxxxx 00000
Facsimile Number: (000) 000-0000
and
Cleary, Gottlieb, Xxxxx & Xxxxxxxx
Xxx Xxxxxxx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxx X. Xxxx, Esq.
Facsimile Number: (000) 000-0000
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17 TRANSLATION
17.1 If this Agreement is translated into a language other than English,
the English language version will be the only version binding upon
the parties.
18 ENTIRE AGREEMENT
18.1 This Agreement, which includes the SOW, Schedules and other
attachments, supersedes all prior discussions and writings and
constitutes the entire and only contract between the parties
relating to the activities to be performed hereunder for Contract
Products, and it may not be changed, altered or amended except in
writing and signed by duly authorized representatives of all of the
parties.
18.2 If any inconsistencies arise between the terms of this Agreement,
Schedule A, the SOW, a purchase order or any other agreement entered
into between the parties, the order of precedence in determining the
rights and obligations of the parties will be: (i) this Agreement;
(ii) Schedule A; then (iii) the SOW. Without limiting the generality
of the foregoing, any provisions in any purchase order concerning
acceptance, proprietary information, warranties, termination,
indemnification (including, without limitation, patent or other
intellectual property indemnification), changes, insurance, dispute
resolution or materials, tools, and equipment, will not govern or
affect the rights or obligations of the parties.
19 WAIVER
19.1 The failure of any party to enforce, at any time, or for any period
of time, any provision of this Agreement, to exercise any election
or option provided herein, or to require, at any time, performance
of any of the provisions hereof, will not be construed to be a
waiver of such provision, or in any way affect the validity of this
Agreement, or any part thereof, or the right of any party thereafter
to enforce each and every such provision.
20 APPLICABLE LAW AND DISPUTE RESOLUTION
20.1 New York law governs this Agreement. The parties agree that the UN
Convention for the International Sale of Goods shall not apply. The
parties will settle any claim or controversy arising out of this
Agreement in the manner set forth in Article IV.3 of the
Reorganization Agreement.
21 COMPLIANCE WITH LAWS
21.1 Both parties will comply with all applicable state, federal or local
laws, regulations or ordinances in the performance of their
respective duties and obligations under this Agreement.
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22 INDEPENDENT CONTRACTOR
22.1 It is agreed that Motorola is an independent contractor for the
performance of services under this Agreement, and that for
accomplishment of the desired result SCILLC is to have no control
over the methods and means of accomplishment thereof, except as
specifically set forth in this Agreement. There is no relationship
of agency, partnership, joint venture, employment or franchise
between the parties. Motorola is the sole employer and principal of
any and all persons providing services under this Agreement, and is
obligated to perform all requirements of an employer under federal,
state, and local laws and ordinances. Motorola, or its employees or
agents will not be construed to be employees of SCILLC, nor will
Motorola or its employees or agents be entitled to participate in
the profit sharing, pension, or other plans established for the
benefit of SCILLC's employees.
23 SECTION TITLES
23.1 Section titles as to the subject matter of particular sections
herein are for convenience only and are in no way to be construed as
part of this Agreement or as a limitation of the scope of the
particular sections to which they refer.
24 COUNTERPARTS
24.1 This Agreement may be executed in several counterparts, each of
which shall be deemed to be an original, but all of which shall
constitute one and the same instrument.
* * * * *
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IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives as of the date and year first set forth
above.
MOTOROLA, INC.
By: /s/ Xxxx X. Xxxxxxxxx
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Name: Xxxx X. Xxxxxxxxx
----------------------------------------
Title: Executive Vice-President and
Chief Financial Officer
----------------------------------------
SEMICONDUCTOR COMPONENTS INDUSTRIES,
LLC
By: SCG Holding Corporation, its sole
member
By: /s/ Xxxxxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxxxxx X. Xxxxxxxxx
----------------------------------------
Title: Vice-President
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TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A - PRICE
SPS ASSEMBLY PRICES TO SCG
[1 PAGE REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION]
SCG PRODUCTS IN MBG FACTORIES
MIN/MAX ASSY/TEST (K units/week)
[2 PAGES REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION]
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE B - PRICES
****** ASSEMBLY & TEST PRICES TO SCG
[1 PAGE REDACTED]
[*CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION]
APPENDIX A
STATEMENT OF WORK
[159 PAGES REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES
AND EXCHANGE COMMISSION]
