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"[ ]" indicates that the
confidential portion has been
omitted and filed separately
with the Commission.
Confidential
Treatment
Requested
Dated this 17th day of October, 1996
Between
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
AND
CHIPS AND TECHNOLOGIES, INC.
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AMENDMENT AGREEMENT (NO. 1)
TO
DEPOSIT AGREEMENT DATED 16 NOVEMBER 1995
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AMENDMENT AGREEMENT (NO. 1)
THIS AMENDMENT AGREEMENT (NO. 1) is made the 17th day of October, 1996, by
and between:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD (formerly known as Chartered
Semiconductor Manufacturing Pte Ltd), a Singapore corporation having a
place of business at 00 Xxxxxxxxx Xxxxxxxxxx Xxxx X, Xxxxxx 0,
Xxxxxxxxx 000000 ("CSM"); and
(2) CHIPS AND TECHNOLOGIES, INC., a California corporation having a place
of business at 0000 Xxxxxx Xxxx, Xxx Xxxx, XX 00000, Xxxxxx Xxxxxx of
America ("Customer").
WHEREAS
(A) CSM and Customer had entered into a Deposit Agreement dated 16 November
1995 (the "Deposit Agreement") for the purpose of Customer depositing
certain funds with CSM and to procure CSM to make available to Customer
certain wafer manufacturing capacity.
(B) CSM 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:
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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, CSM will return to Customer the
Deposit, without interest and subject to any
deductions or refunds made by CSM pursuant to the
terms of this Agreement."
2.2 Clause 2 (CSM Supply Commitment)
The provisions of Clause 2 shall be amended as follows:
i) The word "second" appearing at the end of the fourth
line of Clause 2.1 shall be deleted and the word
"third" 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 Clause 4 (Liquidated Damages)
The heading 4. and Clauses 4.1, 4.2, 4.3, 4.4 and 4.5 shall be
deleted in their entirety.
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 5.1 in its entirety and replacing
it with the following new Clause 4.1:
"4.1 CSM 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 5.2 in its entirety and replacing
it with the following new Clause 4.2:
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Confidential
Treatment
Requested
"4.2 At the end of each calendar quarter, CSM shall issue
a written notice to Customer stating the amount of
the overdue payments and Customer shall pay the
relevant sum to CSM within 30 days of the date of
such notice, so as to maintain the Deposit at
US$20,000,000.00 less the amounts that may have been
refunded by CSM to Customer pursuant to Clause 4.4 or
Clause 4.5 below."
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
"liquidated damages and/or" appearing in the second line.
v) by inserting the following new Clauses 4.4 and 4.5:
"4.4 From the period:
(a) [ ] provided that (i) the
Customer Actual Loading quantity for each
calendar year is equal to the quantity for
such calendar year specified in Annex B (the
"Customer Loading Commitment"), AND (ii)
Customer pays the Deposit installment(s) in
accordance with the Payment Schedule set out
in Annex A, then CSM will [ ]
Customer the [ ] on [
] of the year in which Customer has
fulfilled both conditions stated in Clause
4.4(a)(i) and (ii) above.
By way of illustration, if Customer (i)
purchases the quantities for [ ]
as specified in Annex B and (ii) pays the
Deposit installment of [ ] on
[ ], then CSM will [ ] Customer
on [ ].
(b) [ ] to the expiry of this
Agreement or to such time as the Deposit
balance is reduced to zero (whichever is
earlier), provided that (i) the Customer
Actual Loading quantity for each calendar
year is equal to the quantity for such
calendar year specified in Annex B (the
"Customer Loading Commitment"), AND (ii)
Customer has paid the Deposit installment(s)
in accordance with the Payment Schedule set
out in
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Confidential
Treatment
Requested
Annex A, then CSM will [ ] Customer
the [ ] on [ ] of the year
in which Customer has fulfilled both
conditions stated in Clause 4.4(b)(i) and
(ii) above.
By way of illustration, if Customer (i)
purchases the quantities for [ ] as
specified in Annex B and (ii) has paid the
Deposit installments of [ ] each on
[ ], then CSM will [
] Customer on [ ].
4.5 From the period:
(a) [ ], provided that (i) the
Customer Actual Loading quantity for each
calendar year exceeds the quantity specified
in Annex B (the "Customer Loading
Commitment") for such calendar year by
[ ] or more, AND (ii)
Customer pays the Deposit installment(s) in
accordance with the Payment Schedule set out
in Annex A, then CSM will [ ]
Customer the [ ] on
[ ] of the year in which Customer
has fulfilled both conditions stated in
Clause 4.5(a)(i) and (ii) above.
By way of illustration, if Customer (i)
purchases [ ] or more of the
quantities for [ ] as specified
in Annex B and (ii) pays the Deposit
installment of [ ] on
[ ], then CSM will [ ]
Customer on [ ].
(b) [ ] to the expiry of this
Agreement or to such time as the Deposit
balance is reduced to zero (whichever is
earlier), provided that (i) the Customer
Actual Loading quantity for each calendar
year exceeds the quantity specified in Annex
B (the "Customer Loading Commitment") for
such calendar year by [ ] or
more, AND (ii) Customer has paid the Deposit
installment(s) in accordance with the
Payment Schedule set out in Annex A, then
CSM will [ ] Customer the
[ ] on [ ]
of the year in which Customer has
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fulfilled both conditions stated in Clause
4.5(b)(i) and (ii) above.
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Confidential
Treatment
Requested
By way of illustration, if Customer (i)
purchases [ ] or more of the
quantities for [ ] as specified
in Annex B and (ii) has paid the Deposit
installments of [ ] each on
[ ], then CSM will
[ ] Customer on
[ ]."
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"; and by
deleting the word "termination" appearing in the
second line and substituting the word "terminated"
therefor.
iii) By deleting the word "Clause 5.2" appearing in the
third line of subclause 6.1(a) and substituting the
word "Clause 4.2" therefor.
iv) By renumbering Clause 6.2 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)
i) The heading 8. and Clause 8.1 shall be renumbered as
"7." and Clause "7.1" respectively.
ii) Clause 8.2 shall be renumbered as Clause "7.2"; and
the word "Clause 8.4" appearing in the first line
shall be deleted and the word "Clause 7.4"
substituted therefor.
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iii) Clauses 8.3, 8.4, 8.5 and 8.6 shall be renumbered as
Clauses "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 CSM in
its entirety and replacing it with the following:
"CSM
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X, Xxxxxx 0
Xxxxxxxxx 000000
Facsimile no: (00) 0000000
Attn: Xx. Xxx Xxxx Xxxx
President"
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.".
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2.15 Clause 15 (Renewal Option)
The heading 15. shall be renumbered as "14.".
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 "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 Singapore. The parties hereby irrevocably
submit to the nonexclusive jurisdiction of the courts of Singapore.
IN WITNESS WHEREOF the Parties have hereunto entered into this Agreement the
date first above written.
Signed by Tan Xxxx Xxxx, President )
CHARTERED SEMICONDUCTOR )
MANUFACTURING LTD )
in the presence of: )_______________________
Name:
Signed by_____________________________ )
CHIPS AND TECHNOLOGIES, INC. )
in the presence of: )________________________
WITNESS:
______________________________________
Name:
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