EXECUTION COPY
EXHIBIT 10.10 *
MOTOROLA FOUNDRY AGREEMENT
This Motorola Foundry 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 manufacturing 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.
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* Confidential Information in this Exhibit 10.10 has been omitted and filed
separately with the Securities and Exchange Commission.
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.
1.4 DIE YIELD has the meaning ascribed to such term in Section 4.
1.5 EFFECTIVE DATE means the date set forth above.
1.6 ENVIRONMENTAL LAWS has the meaning ascribed to such term in the
Recapitalization Agreement.
1.7 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.
1.8 FIRM ORDER has the meaning ascribed to such term in Section 5.1.
1.9 FORCE MAJEURE has the meaning ascribed to such term in Section 5.6.
1.10 FORECAST has the meaning ascribed to such term in Section 5.1.
1.11 HAZARDOUS SUBSTANCES has the meaning ascribed to such term in the
Recapitalization Agreement.
1.12 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.
1.13 LOGISTICS SCHEDULE means the Logistics Schedule to the Transition
Services Agreement, dated as of the date hereof by and between
Motorola, Inc Semiconductor Components Industries, LLC.
1.14 LONG TERM PRODUCTS has the meaning ascribed to such term in Section
6.3.
1.15 MINIMUM YIELD CRITERIA shall have the meaning set forth in Section
3.1.
1.16 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.
1.17 RELEASE has the meaning ascribed to such term in the
Recapitalization Agreement.
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1.18 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.
1.19 MOTOROLA ASSEMBLY AGREEMENT means the Motorola Assembly Agreement
between Motorola, Inc. and Semiconductor Components Industries, LLC
dated as of the date hereof.
1.20 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. Schedule A shall mean
Schedule A as modified by the attached Addendum.
1.21 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.
1.22 WAFER means a crystalline substrate for integrated circuit
fabrication which when fully processed may consist of several
potential finished Die.
2 FACTORIES, PRODUCTS AND TERM
2.1 As set forth in Schedule A, SCILLC shall manufacture the Contract
Products 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 foundry services for a given Contract
Products 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 masks,
probe cards, and any decommissioning, packaging and shipping costs)
provided that Motorola 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 set forth in herein.
3.1.1 The historical die yield data described in the SOW will be
used in conjunction with the negotiated wafer prices described
in Schedule A to set a die price as described in Section 4.
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3.1.2 The planning cycletime is used by Motorola and SCILLC planning
organizations to provide the Forecasts and Firm Orders
described in Section 5.
3.1.3 The Minimum Yield Criteria sets a threshold for die yield on
each wafer below which no wafers will be shipped from SCILLC
to Motorola. These minimum yields are applicable to
established (mature) products for which a baseline of yield
exists. For new products, engineering tests or changes, or
product revisions no minimum shall apply until a baseline
exists.
3.2 All Contract 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 SCILLC agrees to cooperate with Motorola in continuing the
Reliability Audit Program (RAP) specification testing for products
manufactured by SCILLC for Motorola. The Motorola specification,
12MWS00037b is being compiled from several older reliability monitor
programs around the world (12MRZ09747A, 12MRZ14298A, 12MRZ06640A,
12MRD24358W, 12MRE20379W, 12MRL00144A, 12MSY63231B, 12MRK46008A,
12MRK55011A, 12MRQ95037A, 12MRR80139A, 12MRY77188A, 12MSA62492B,
12ARS03790W and 12MRB18279C). Such reliability testing shall be the
responsibility of Motorola.
3.4 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.
3.5 SCILLC shall provide all facilities, equipment, material, manpower
and expertise necessary to manufacture the Contract Products
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 good die delivered
(based on probe tests). Price per good die shall be initially based
on the wafer price divided by the average die yields for the
previous six months (the "Die Yield") and shall be adjusted on the
same basis every six months thereafter, subject to a floor equal to
the Minimum Yield Criteria.
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4.2 Engineering work and initial photolithography masks, probe cards and
load boards required for new product introduction, qualification or
major process changes requested by Motorola 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 4.1. Upside die
demands beyond the agreed upon Firm Orders described in Section 5.1,
requested by Motorola and accepted by SCILLC will be billed at 125%
of the price agreed upon in Section 4.1.
5 ORDER PLACEMENT, DELIVERY AND PAYMENT
5.1 Binding minimum and maximum weekly wafer supply constraints are set
forth on Schedule A. Motorola shall provide, on a monthly basis, a
rolling 12 month die delivery forecast with anticipated weekly wafer
run rates. The first 3 months of the die 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 die outs 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% or 500 wafers
per week, whichever is smaller, 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, the die will be billed
according to Section 4. In addition, unexpected upside die 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 wafer starts,
and SCILLC shall make reasonable efforts to accommodate the request,
provided that total wafer starts in a given technology do not
change, and subject to manufacturer material availability (e.g.
wafers). 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
foundry services by email.
5.2 SCILLC is required to maintain capacity sufficient to meet the
supply of die set forth in Motorola's Firm Orders, subject to the
maximum weekly wafer supply constraints. In the event Firm Orders
for any Product over a monthly period fall below the minimum weekly
wafer supplies for those Contract Products during
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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 wafer supply, taking into account any die 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 wafer supplies, the parties shall meet and explore
potential solutions to the shortfall, which may include, subject to
mutual consent, a reduction of the minimum weekly wafer supplies,
efforts to reduce fixed costs or the early termination of the
relevant Contract 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 wafers necessary to meet
Motorola's Firm Orders (on a cumulative basis), even though the
wafer start volume meets the min-max limits for the Product as set
forth in Schedule A, SCILLC will pay Motorola per wafer liquidated
damages equal to the gross margin for that Product for the previous
fiscal quarter, once those wafer 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. Once these damages are paid
the relevant Firm Order under this Agreement and any related
assembly Firm Orders under the Motorola Assembly Agreement shall be
deemed cancelled and no damages or obligations to pay fixed costs
shall be payable by either party for failure to order, purchase or
deliver the services requiring such die pursuant to the Motorola
Assembly Agreement.
5.4 In the event SCILLC has started the wafers but fails to deliver a
number of functional die 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 wafers but fails to deliver a
number of functional die equal to 70% of the volume set forth in the
Firm Orders within 90 days of the date specified in the Firm Orders,
SCILLC will be required to pay per die liquidated damages (as
described below) for the die shortfall below 85% of the ordered die
amount set forth in relevant Firm Order, provided that in no case
will
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SCILLC be required to pay any such damages until the total amount of
liquidated damages payable under this contract exceed $50,000.00.
Per die liquidated damages shall be equal to the gross margin per
die for each of the Contract Products (equal to the gross margin for
that Product for the previous fiscal quarter). If liquidated damages
are paid pursuant to this Section and such die are required for any
assembly services pursuant to the Motorola Assembly Agreement, no
damages or obligations to pay fixed costs shall be payable by either
party for failure to order, purchase or deliver the services
requiring such die pursuant to the Motorola Assembly Agreement.
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 Schedule. Contract
Products 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 Contract Products
manufactured in Japan, which will be paid in Yen as set forth in
Schedule A.
5.9 If actual die yields exceed the Die Yield, SCILLC shall use
reasonable efforts to adjust its wafer starts and keep such die in
its inventory in order to deliver ordered die as set forth in the
Firm Orders, provided that SCILLC shall have the right to ship up to
110% of the die specified in the Firm Orders resulting from
increased Die Yields, and Motorola shall accept delivery of such
excess die, if future Firm Orders are insufficient to account for
such excess die.
5.10 Demand for TMOS from MOS-4 is now zero wafers/week. No further
demand is expected so the min/max should be 0 without penalty.
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6 OTHER SERVICES
6.1 SCILLC shall provide all reasonable support for the wafer
manufacturing processes and associated processes used to manufacture
the Contract Products 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 Contract Products with last start dates after the end of 2000
("Long Term Products"), SCILLC shall cooperate in good faith with
any process or other manufacturing 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 WARRANTY / REJECTION CRITERIA
7.1 Motorola may refuse wafers that fail to meet the Minimum Yield
Criteria as set forth in the appropriate SOW. SCILLC shall be
responsible for all costs related to the return of any such wafers.
7.2 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.
7.3 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.
7.4 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
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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 SCG'S DESIGN, FORMULA, OR
APPLICATION.
7.5 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.
7.6 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.
8 INTELLECTUAL PROPERTY
8.1 Ownership of intellectual property 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 manufacture of the Contract Products by
SCILLC does not imply any transfer of SCILLC's intellectual
property, technical information, or know how.
9 TERM
9.1 Last start dates are as set forth on Schedule A. Motorola may
terminate the agreement with respect to any Contract Products on 6
months written notice.
9.2 SCILLC shall provide reasonable assistance to Motorola in
transitioning the manufacture of the Contract Products covered by
this Agreement 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.
9.3 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.
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9.4 In the event Motorola requires a Factory to remain open beyond the
planned closure date listed in Schedule A, the die price will be
calculated as follows: (i) if Motorola becomes the sole user of a
Factory after the planned closure dates, then the die price will
first be adjusted to cover the full factory costs; and (ii) the die
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 die 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 producing the same Contract
Products, or as a result of delays in the relocation of any other
facilities in SCILLC's control.
10 SITE ACCESS
10.1 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.
11 ENVIRONMENTAL
11.1 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.
11.2 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 Motorola's operations pursuant to this Agreement
involving the Release of Hazardous Substances, or non-compliance
with Environmental Laws.
11.3 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.
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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 ASSIGNMENT
13.1 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.
14 CONFIDENTIALITY
14.1 Each party will treat as confidential all Confidential Information
of the other party in accordance with the terms of the IP Agreement.
15 NOTIFICATION
15.1 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 Motorola, Inc.
for Technical 0000 Xxxxxxx Xxxxxx Xxxxx West
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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
16 TRANSLATION
16.1 If this Agreement is translated into a language other than English,
the English language version will be the only version binding upon
the parties.
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17 ENTIRE AGREEMENT
17.1 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.
17.2 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.
18 WAIVER
18.1 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.
19 APPLICABLE LAW AND DISPUTE RESOLUTION
19.1 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.
19.2 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.
20 INDEPENDENT CONTRACTOR
20.1 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
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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.
21 SECTION TITLES
21.1 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.
22 COUNTERPARTS
22.1 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
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Title: Executive Vice-President and
Chief Financial Officer
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SEMICONDUCTOR COMPONENTS INDUSTRIES,
LLC
By: SCG Holding Corporation, its sole
member
By: /s/ Xxxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxxx X. Xxxxxxxxx
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Title: Vice-President
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TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A -- PRICES
SPS FAB FOUNDRY PRICES TO SPS
[3 PAGES REDACTED]
[CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION]
TERM SHEET
FOUNDRY AND ASSEMBLY AGREEMENT
SCHEDULE A--MIN/MAX
[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]
