EXECUTION COPY
EXHIBIT 10.8*
MOTOROLA ASSEMBLY AGREEMENT
This Motorola Assembly Agreement (this "Agreement") is made this July 31, 1999
(the "Effective Date") between Semiconductor Components Industries, LLC, a
Delaware limited liability company ("SCILLC") and Motorola, Inc., a Delaware
corporation ("Motorola").
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 SCILLC provide
Motorola with certain packaging and testing services (the "Assembly Services")
as set forth herein;
NOW, THEREFORE, Motorola and SCILLC 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 Motorola Confidential Proprietary or SCILLC
Confidential Proprietary Information.
1.2 Contract Products means, collectively, those products which are
described in the Schedules to this Agreement.
1.3 Die means an individual integrated circuit or components which when
completed create an integrated circuit or component.
--------------
* Confidential Information in this Exhibit 10.8 has been omitted and filed
separately with the Securities and Exchange Commission.
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
Contract Products to be sold to Motorola.
1.17 Seremban RF Employees has the meaning ascribed to such term in
Section 7.
1.18 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 yield criteria, 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, SCILLC shall provide Assembly Services
for the listed Contract Product for Motorola at the respective
factories described in Schedule A (the "Factories") through the
respective last start dates at the respective prices.
2.2 SCILLC may choose to migrate Assembly Services for a given Contract
Product to a different Factory than shown on Schedule A by giving
Motorola six months written notice. SCILLC shall be responsible for
all out of pocket costs related to such a move (including any
decommissioning, packaging and shipping costs) provided that
Motorola shall be responsible for costs associated with customer
acceptance of any such move.
2.3 SCILLC must maintain the relevant agreements entered into with those
certain joint venture parties in order to provide the Assembly
Services to Motorola as listed on Schedule B at the prices and
subject to the minimum and maximum supply constraints listed
therein.
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 Motorola and
SCILLC 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 SCILLC to
Motorola.
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 SCILLC shall provide all facilities, equipment, material, manpower
and expertise necessary to perform the Assembly Services according
to Motorola's requirements and specifications as set forth in this
agreement and the appropriate SOW.
4 PRICE
4.1 Prices shall be based on the actual number of functional assembled
products delivered as set forth in Schedule A. SCILLC shall be
responsible for purchasing
the piece parts used in the provision of the Seremban RF Assembly
Services, which will be billed to Motorola at cost upon delivery of
the finished goods. In the event such piece parts have not been used
within six months of their purchase. Motorola shall repurchase such
piece parts from SCILLC at SCILLC's cost.
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 Motorola and accepted by SCILLC will be
billed at 150% of the price agreed upon in Section 4. Upside
delivery demands beyond the agreed upon Firm Orders described in
Section 5 requested by Motorola and accepted by SCILLC will be
billed at 125% of the price agreed upon in Section 4.
4.4 Motorola shall provide SCILLC with the die used for the Assembly
Services, and such die shall be consigned to SCILLC.
5 ORDER PLACEMENT, DELIVERY AND PAYMENT
5.1 Binding minimum and maximum weekly assembly supply constraints are
set forth on Schedule A. Motorola 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. Motorola may request rush status on any production lot,
and if SCILLC agrees to this request, Motorola will be billed
according to Section 4. In addition, unexpected upside demands may
be requested by Motorola within the Firm Order window. SCILLC has
the option of accepting such orders which will be billed according
to Section 4. Motorola may request changes to the device mix within
the Firm Order window at any time prior to die starts, and SCILLC
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 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
manufacturing services by email.
5.2 SCILLC is required to maintain capacity sufficient to meet the
supply set forth in Motorola's Firm Orders, subject to the maximum
weekly supply constraints. In the event Firm Orders for any Contract
Product over a monthly period fall below the minimum weekly die
supplies for those Contract Products during that month, Motorola
will be responsible for SCILLC'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 Motorola,
provided that SCILLC shall take all reasonable steps to limit such
fixed costs. In such an event, Motorola shall have the right to
audit such fixed costs. In the event Motorola notifies SCILLC 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. Motorola's liability for the cancellation of any Firm Orders
will be limited to the actual expenses reasonably incurred by SCILLC
in anticipation of the Firm Orders, provided that SCILLC shall take
all reasonable steps to mitigate any such damages.
5.3 If SCILLC does not agree to start the die necessary to meet
Motorola's Firm Orders (on a cumulative basis), even though the die
start volume meets the min-max limits for the Contract Product as
set forth in Schedule A, SCILLC will pay Motorola 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 SCILLC 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 SCILLC is unable to start die because
such die have not been provided by Motorola.
5.4 In the event SCILLC 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 SCILLC and
Motorola. At the option of the Motorola planning organization, the
recovery plan can be declined and the orders cancelled without
penalty for either party.
5.5 In the event SCILLC 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, SCILLC 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 SCILLC 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 Product (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. SCILLC will notify Motorola 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 Agreement. SCILLC
shall be billed and title shall pass to Motorola at shipment, and
risk of loss shall pass to Motorola upon receipt at the destination
set forth therein. SCILLC 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 equipment related to PLCC & SOIC Test Only products (package
codes 0803, 0804, 0805, 2002) at MPC shall be transferred to a
non-SCILLC site before 6/30/2000 and shall be used to test both
SCILLC and MBG products. Motorola will continue to provide test
support for SCILLC devices for a minimum of two years from the
Closing. The equipment will be transferred to Motorola and Motorola
will pay the cost of de-installation, crating and shipping to the
new location.
5.10 The MIN/MAX in Seremban for PLD-1.5 (package code 7555) is currently
16/wk MIN, 17 K/wk MAX. If Motorola is successful qualifying ball
bond to replace current wedge bond process, then SCILLC will agree
to increase the MAX to 30/wk. In addition, Motorola must remove
sufficient RF testing to enable the 30K assembly capability to be
matched at test.
The MIN/MAX in Seremban for PRFP-2 (package code 7560) is currently 0.5 K/wk
MIN, 6 K/wk MAX. If Motorola removes sufficient test requirements then SCG
will agree to increase the MAX to 16 K/wk through June 30, 2001. Because
the current pricing ($14.67) was based upon engineering runs, the price
will be adjusted downward as production volume ramps up.
Min and Max volumes in Schedule A shall refer to assembly and/or test starts
and/or outs as follows:
--------------------------------------------------------------------------------
SITE: OPERATIONS PERFORMED: MIN / MAX REFERS TO:
--------------------------------------------------------------------------------
Aizu Assy & Test Assy Starts
Assy Only Assy Starts
Test Only Test Outs
--------------------------------------------------------------------------------
GDL Chip Sales Starts
--------------------------------------------------------------------------------
MPC Assy & Test Assy Starts
Test Only Test Outs
--------------------------------------------------------------------------------
SBN Assy & Test Test Outs
Assy Only Assy Outs
--------------------------------------------------------------------------------
SMP Assy & Test Test Outs
--------------------------------------------------------------------------------
Leshan Assy & Test Test Outs
--------------------------------------------------------------------------------
6 OTHER SERVICES
6.1 SCILLC shall provide all reasonable support for the Assembly
Services consistent with past practice, industry standards and
Motorola form contracts.
6.2 SCILLC shall keep Motorola 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 Motorola, which shall not unreasonably be withheld.
Implementation of any process changes consented to by Motorola 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"), SCILLC shall cooperate in good faith with any assembly
process related changes reasonably requested by Motorola, and the
parties shall negotiate in good faith any price adjustments based on
such changes. In the event such negotiations are not successful,
Motorola may terminate this agreement with respect to any of such
Long Term Products on 3 months written notice.
7 EQUIPMENT / EMPLOYEES
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.
7.2 With respect to the personnel working in and supporting the RF
assembly line at Seremban Site 1 (the "Seremban RF Employees"),
Motorola will be responsible for (i) all severance and other
termination compensation or benefits payable in respect of any such
employee, including those payable pursuant to any Benefit Plan, work
rule or legislation, arising in connection with the actual or
constructive termination of any such employee's employment with
SCILLC or the reemployment or redeployment of any such employee to
Motorola at or prior to the time the services provided under this
Motorola Assembly Agreement terminate and (ii) all pension and other
retirement benefits and all long-term
disability benefits or compensation payable in respect of any such
employee and all related contributions and expenses under the
Benefit Plans necessary to fund or satisfy such pension, other
retirement and long-term disability benefits and compensation, other
than the costs associated with pension benefits accrued during such
employees' employment by SCILLC. Motorola will also be responsible
for all liabilities arising in connection with any claim, grievance
or litigation asserted or threatened by any Seremban RF Employee
that is based in whole or in part on any event occurring or
commenced during or relating to such employee's employment by
Motorola prior to the Closing or the termination of such employment,
including without limitation any claim, grievance or litigation
relating to safety and health conditions, wages or hours, workers'
compensation or discrimination.
7.3 Upon termination of the Seremban RF Assembly Services, SCILLC will
permit Motorola to recruit from among the Seremban RF Employees,
which is expected to include approximately 2 operations managers, 4
manufacturing managers, 4 engineering managers, 13 manufacturing
section heads, 8 engineering section heads, 22 engineers, 17
supervisors, 45 technicians, 5 planners, and 620 direct labor
employees. SCILLC will make reasonable efforts to redeploy the
remaining Seremban RF employees at that site, ISMF or SMP.
8 WARRANTY/REJECTION CRITERIA
8.1 SCILLC 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, SCILLC
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 SCILLC's obligations to pay liquidated damages under Section
5.4 and 5.5, hereof, for failure to deliver functional die on a
timely basis, although such liquidated damages shall be offset by
the amount of any credit paid.
8.2 SCILLC shall destroy and properly dispose of all Scrap in order to
prevent any unauthorized sale of any Contract Product, which cannot
be reclaimed. SCILLC shall return such Scrap to Motorola at
Motorola's request and expense.
8.3 THIS WARRANTY EXTENDS TO MOTOROLA ONLY AND MAY BE INVOKED ONLY BY
MOTOROLA FOR ITS CUSTOMERS. SCILLC SHALL NOT ACCEPT WARRANTY RETURNS
DIRECTLY FROM MOTOROLA'S CUSTOMERS OR USERS OF MOTOROLA'S PRODUCTS.
SCILLC DOES NOT WARRANT CONTRACT 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 SCILLC's
warranty obligations or any other liabilities beyond those expressly
set forth in this Section or limit SCILLC's obligations to pay
damages under Section 5, hereof.
8.5 EXCEPT AS EXPLICITLY SET FORTH IN THIS AGREEMENT, IN NO EVENT SHALL
SCILLC 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 Product 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 SCILLC does not imply any
transfer of SCILLC's intellectual property, technical information,
or know how.
10 TERM
10.1 Last start dates are as set forth on Schedule A. Motorola may
terminate the agreement with respect to any Contract Product on 6
months written notice.
10.2 SCILLC shall provide assistance to Motorola in transitioning the
assembly of the Seremban RF Contract Product to a separate facility
prior to expiration or termination, which services shall be billed
at SCILLC's costs, including overhead.
10.3 With regard to all other Contract Products covered by this
Agreement, SCILLC shall provide reasonable assistance to Motorola in
transitioning the Assembly Services to a separate facility prior to
expiration or termination provided SCILLC shall have personnel
available, which services shall be billed at SCILLC's costs,
including overhead.
10.4 SCILLC's assistance in transitioning the products listed in this
Section 10 may also include training of the relevant employees which
will be provided at SCILLC's facilities and billed at SCILLC's
costs, including overhead.
10.5 In the event Motorola 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 Motorola becomes the
sole user of a Factory after the
planned closure dates, then such price will first be adjusted to
cover the full costs of such Factory; 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 Motorola be liable for
any damages set forth in this Section if SCILLC is responsible for
the late closure, whether as a result of SCILLC'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 SCILLC's
control.
11 SITE ACCESS
11.1 SCILLC shall allow Motorola to visit and inspect the facilities upon
reasonable notice during normal business hours, provided that
Motorola must first obtain SCILLC's consent to any such visit, which
consent shall not unreasonably be withheld. SCILLC may limit such
site inspections to no more than once per calendar year, except in
the event of any exceptional circumstances, including SCILLC'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 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, SCILLC agrees to indemnify Motorola for
claims/liabilities relating to SCILLC's operations pursuant to this
Agreement involving the Release of Hazardous Substances, or
non-compliance with Environmental Laws.
13.3 SCILLC 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. SCILLC
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 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
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.
22 INDEPENDENT CONTRACTOR
22.1 It is agreed that SCILLC is an independent contractor for the
performance of services under this Agreement, and that for
accomplishment of the desired result Motorola 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. SCILLC 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. SCILLC, or its employees or
agents will not be construed to be employees of Motorola, nor will
SCILLC or its employees or agents be entitled to participate in the
profit sharing, pension, or other plans established for the benefit
of Motorola'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.
* * * * *
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
----------------------------------------
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
----------------------------------------
Motorola Assembly Agreement
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A -- PRICES
SCG SBN ASSEMBLY PRICES TO SPS
[1 PAGE REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A -- PRICES
SCG AIZU ASSEMBLY & TEST PRICES TO SPS
[2 PAGES REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A -- PRICES
SCG OTHER ASSEMBLY & TEST PRICES TO SPS
[1 PAGE REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A -- PRICES
SCG SBN ASSEMBLY PRICES TO SPS
[1 PAGE REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A -- PRICES
SCG OTHER ASSEMBLY & TEST PRICES TO SPS
[1 PAGE REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A -- PRICES
SCG AIZU ASSEMBLY & TEST PRICES TO SPS
[2 PAGES REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
MBG PRODUCTS IN SCG FACTORIES
MIN/MAX ASSY/TEXT (K units/week)
[9 PAGES REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
MBG PRODUCTS IN JOINT VENTURES
MIN/MAX ASSY/TEXT (K units/week)
[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]
