Republic of Singapore
|
3674 | Not Applicable | ||
(State or other jurisdiction
of incorporation) |
(Primary Standard Industrial
Classification Code Number) |
(I.R.S. Employer
Identification Number) |
Primary
State or Other
Standard
Address, Including Zip Code and
Jurisdiction of
Industrial
I.R.S. Employer
Telephone Number,
Exact Name as
Incorporation or
Classification
Identification
Including Area Code, of Principal
Organization
Number
Number
Executive Offices
Delaware
3674
20-3387670
350 West Trimble Road
San Jose, California 95131
Tel: (408) 435-7400
Avago Technologies Wireless
(U.S.A.) Manufacturing Inc.
Delaware
3674
20-3514362
350 West Trimble Road
San Jose, California 95131
Tel: (408) 435-7400
Avago Technologies ECBU IP
(Singapore) Pte. Ltd.
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies Enterprise IP
(Singapore) Pte. Ltd.
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies Fiber IP
(Singapore) Pte. Ltd.
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies General IP
(Singapore) Pte. Ltd.
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies International
Sales Pte. Limited
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies Manufacturing
(Singapore) Pte. Ltd.
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies Sensor IP Pte.
Ltd.
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies Wireless IP
(Singapore) Pte. Ltd.
Singapore
3674
Not Applicable
1 Yishun Avenue 7
Singapore 768923
Tel: (65) 6755-7888
Avago Technologies Sensor
(U.S.A.) Inc.
Delaware
3674
20-4522743
350 West Trimble Road
San Jose, California 95131
Tel: (408) 435-7400
Avago Technologies
U.S. R&D Inc.
Delaware
3674
20-3379093
350 West Trimble Road
San Jose, California 95131
Tel: (408) 435-7400
Avago Technologies Wireless
(U.S.A.) Inc.
Delaware
3674
20-3514309
350 West Trimble Road
San Jose, California 95131
Tel: (408) 435-7400
Avago Technologies (Malaysia)
Sdn. Bhd.
Malaysia
3674
Not Applicable
Bayan Lepas Free Industrial Zone
11900 Penang, Malaysia
Tel: (604) 643-0611
Avago Technologies Enterprise
Holding (Labuan) Corporation
Labuan
3674
Not Applicable
Unit Level 13(E), Main Office
Tower
Financial Park Labuan
Jalan Merdeka, 87000 Federal
Territory of Labuan, Malaysia
Tel: 6087 451 688
Avago Technologies Fiber Holding
(Labuan) Corporation
Labuan
3674
Not Applicable
Unit Level 13(E), Main Office
Tower
Financial Park Labuan
Jalan Merdeka, 87000 Federal
Territory of Labuan, Malaysia
Tel: 6087 451 688
Primary
State or Other
Standard
Address, Including Zip Code and
Jurisdiction of
Industrial
I.R.S. Employer
Telephone Number,
Exact Name as
Incorporation or
Classification
Identification
Including Area Code, of Principal
Organization
Number
Number
Executive Offices
Avago Technologies Imaging
Holding (Labuan) Corporation
Labuan
3674
Not Applicable
Unit Level 13(E), Main Office
Tower
Financial Park Labuan
Jalan Merdeka, 87000 Federal
Territory of Labuan, Malaysia
Tel: 6087 451 688
Avago Technologies Storage
Holding (Labuan) Corporation
Labuan
3674
Not Applicable
Unit Level 13(E), Main Office
Tower
Financial Park Labuan
Jalan Merdeka, 87000 Federal
Territory of Labuan, Malaysia
Tel: 6087 451 688
Avago Technologies Wireless
Holding (Labuan) Corporation
Labuan
3674
Not Applicable
Unit Level 13(E), Main Office
Tower
Financial Park Labuan
Jalan Merdeka, 87000 Federal
Territory of Labuan, Malaysia
Tel: 6087 451 688
Avago Technologies Holdings B.V.
Netherlands
3674
Not Applicable
Naritaweg 165, Telestone 8
1043 BW Amsterdam, the Netherlands
Tel: +31 (0) 20 5722 312
Avago Technologies Storage
Holdings B.V.
Netherlands
3674
Not Applicable
Naritaweg 165, Telestone 8
1043 BW Amsterdam, the Netherlands
Tel: +31 (0) 20 5722 312
Avago Technologies Wireless
Holdings B.V.
Netherlands
3674
Not Applicable
Naritaweg 165, Telestone 8
1043 BW Amsterdam, the Netherlands
Tel: +31 (0) 20 5722 312
Avago Technologies Canada
Corporation
Canada
3674
Not Applicable
5300 Commerce Court West
199 Bay Street
Toronto, Ontario M5L 1B9
Canada
Tel: (416) 869-5500
Avago Technologies GmbH
Germany
3674
Not Applicable
Herrenberger Strasse 130
71034 Boeblingen
Germany
Tel: (49) 7031 464 1955
Avago Technologies Italy S.r.l.
Italy
3674
Not Applicable
Via Schiaparelli 12
10148 Torino, Italy
Tel: (39) 02926081
Avago Technologies Japan, Ltd.
Japan
3674
Not Applicable
7th floor, Sumitomo-Fudosan
Aobadai Hills, 7-7
Aobadai 4-chome
Meguro-ku, Tokyo 153-0042
Japan
Tel: 81-3-6407-2727
Avago Technologies Mexico, S. de
R.L. de C.V.
Mexico
3674
Not Applicable
San Francisco No. 1005,
P.B.
Colonia Del Valle, C.P. 03100
México, D.F., México
Tel: (52-55) 5687-9133
Avago Technologies UK Limited
England
3674
Not Applicable
Building A, Trinity Court
Wokingham Road
Bracknell RG42 1PL
United Kingdom
Tel: 44 1344 668 342
The
information in this prospectus is not complete and may be
changed. We may not sell these securities until the registration
statement filed with the Securities and Exchange Commission is
effective. This prospectus is not an offer to sell these
securities and it is not soliciting an offer to buy these
securities in any state where the offer or sale is not
permitted.
|
| We will exchange all outstanding notes that are validly tendered and not validly withdrawn for an equal principal amount of exchange notes that are freely tradable. | |
| You may withdraw tenders of outstanding notes at any time prior to the expiration date of the exchange offers. | |
| The exchange offers expire at 12:00 a.m. midnight, New York City time, on , 2006, unless extended. We do not currently intend to extend the expiration date. | |
| The exchange of outstanding notes for exchange notes in the exchange offers will not be a taxable event for U.S. federal income tax purposes or Singapore tax purposes. | |
| The terms of the exchange notes to be issued in the exchange offers are substantially identical to the outstanding notes, except that the exchange notes will be freely tradable. |
| The exchange notes may be sold in the over-the-counter market, in negotiated transactions or through a combination of such methods. We do not plan to list the notes on a national market in the United States or elsewhere. |
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F-1 | ||||||||
EXHIBIT 3.17 | ||||||||
EXHIBIT 10.2 | ||||||||
EXHIBIT 10.3 | ||||||||
EXHIBIT 10.4 | ||||||||
EXHIBIT 10.5 | ||||||||
EXHIBIT 10.6 | ||||||||
EXHIBIT 10.7 | ||||||||
EXHIBIT 10.8 | ||||||||
EXHIBIT 10.9 | ||||||||
EXHIBIT 10.14 | ||||||||
EXHIBIT 10.15 | ||||||||
EXHIBIT 23.11 | ||||||||
EXHIBIT 23.12 | ||||||||
EXHIBIT 99.1 | ||||||||
EXHIBIT 99.2 | ||||||||
EXHIBIT 99.3 | ||||||||
EXHIBIT 99.4 |
i
ii
Wireless Communications:
We support the
wireless industry with a broad variety of RF semiconductor
devices, including diodes and discrete transistors, monolithic
microwave integrated circuits (MMICs), filters and duplexers
using our proprietary film bulk acoustic resonator (FBAR)
technology, and front end modules that incorporate multiple die
into multi-function RF devices. The broad range of our RF
portfolio allows us to address applications ranging from mobile
handsets and infrastructure to satellite communications,
point-to-point
communications, military communications, and wireless networking
for computing applications. Our expertise in amplifier design,
FBAR technology and module integration capability enables us to
offer industry-leading efficiency in RF transmitter
applications. Our proprietary gallium arsenide (GaAs) processes
are critical to the production of low noise amplifier (LNA)
products. In addition to RF devices, we provide a variety of
peripheral devices for mobile handset applications. We were an
early developer of complementary metal-oxide semiconductor
(CMOS) image sensors for camera-phone applications and today
supply image sensor components to camera module assemblers for
integration into handsets. We also supply LEDs for camera-phone
flashes and for backlighting applications in mobile handset
keypads, as well as sensors for backlighting control and
infrared transceivers to enable secure access of files in mobile
phones and smartphones.
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Wired Infrastructure:
In the
telecommunications, storage and Ethernet networking markets, we
supply transceivers that receive and transmit information along
optical fibers. We provide a range of options for customers to
select the bandwidth desired, including options ranging from
125 MBd Fast Ethernet transmitters and receivers to 10
Gigabit storage transceivers. We also supply parallel optic
transceivers with as many as 12 parallel channels. In
metropolitan networking applications, we supply SONET-compliant
transceivers ranging from OC-3 to OC-192 standards. We also
supply components for networking and enterprise storage I/O
applications, including serializers/deserializers (SerDes)
integrated into application specific integrated circuits
(ASICs). Our CMOS processes provide low power consumption and
superior noise immunity.
Industrial/Automotive Electronics:
We provide
a broad variety of products for the general industrial,
automotive and consumer appliance markets. LEDs and related
integrated modules represent a significant product family, with
a number of different colors, form factors and integration
options. Our LEDs provide reliability, using aluminum indium
gallium phosphide (AlInGaP), indium gallium nitride (InGaN) and
gallium phosphide (GaP) materials, among others, to cover a wide
spectrum of colors and brightness levels. Our LEDs offer high
brightness and stable light output over thousands of hours,
enabling us to support the electronic signs and signals market
with LED assemblies for traffic signals, large commercial signs
and other displays. We also offer optical isolators, or
optocouplers, which provide electrical insulation and signal
isolation for systems that are susceptible to electrical noise
caused by crosstalk, power glitches or electrical interference.
Our ability to integrate LEDs, detectors and communication ICs
enables us to offer high performance with respect to isolation
and power dissipation, as well as high speed digital
optocouplers. Optocouplers are used in a diverse set of
applications, including industrial motors, power generation and
distribution systems, switching power supplies, medical
equipment, telecommunications equipment, consumer appliances,
computers and office equipment, plasma displays, and military
electronics. Industrial motors and robotics require optical
sensors for motion control. We supply optical encoders in module
form and housed in ingress-protected enclosures, as well as ICs
for the controller and decoder functions to accompany the motion
sensors themselves. For industrial networking, we provide fast
Ethernet transceivers using plastic optical fiber that enable
quick and interoperable networking in industrial control links
and factory automation and for medical equipment.
Computing Peripherals:
We manufacture motion
control encoders that control the paper feed and print head
movement in printers and other office automation products. In
addition, we were an early developer of image sensors for
optical mouse applications, using LEDs and CMOS image sensors to
create a subsystem that can detect motion over an arbitrary
desktop surface. We are a leading supplier of image sensors for
optical mice today, and have launched a new line of laser-based
mouse products with improved precision. Many PCs incorporate
infrared transceivers for beaming information to and
from handheld devices or printers, and we supply transceivers
that can be used for these applications. Computer displays,
especially in notebook computer applications, use our products
for LED backlighting and sensors to control display brightness
based on ambient light conditions.
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61
65
F-23
II-6
II-7
II-8
II-9
II-10
II-13
General
On December 1, 2005, Avago Technologies Finance Pte. Ltd.
and the subsidiary co-issuers issued $500 million aggregate
principal amount of the outstanding fixed rate senior notes,
$250 million aggregate principal amount of the outstanding
floating rate senior notes and $250 million aggregate
principal amount of the outstanding senior subordinated notes in
a private offering. In connection with the private offering,
Avago Technologies Finance Pte. Ltd. and the subsidiary
co-issuers and guarantors of the notes entered into a
registration rights agreement with the initial purchasers in
which we agreed, among other things, to deliver this prospectus
to you and to complete the exchange offers within 360 days
after the date of original issuance of the outstanding notes.
You are entitled to exchange in the applicable exchange offer
your outstanding notes for exchange notes which are identical in
all material respects to the outstanding notes except:
the exchange notes are not entitled to any
registration rights under the registration rights
agreement; and
the liquidated damages provision of the registration
rights agreement is no longer applicable.
The Exchange Offers
We are offering to exchange:
$500 million aggregate principal amount of
exchange fixed rate senior notes which have been registered
under the Securities Act for any and all of the outstanding
fixed rate senior notes;
$250 million aggregate principal amount of
exchange floating rate senior notes which have been registered
under the Securities Act for any and all of the outstanding
floating rate senior notes; and
$250 million aggregate principal amount of
exchange senior subordinated notes which have been registered
under the Securities Act for any and all of the outstanding
senior subordinated notes.
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You may only exchange outstanding notes with a minimum
denomination of $2,000 or an integral multiple of $1,000 in
excess thereof.
Resale
Based on an interpretation by the staff of the Securities and
Exchange Commission (the SEC) set forth in no-action
letters issued to third parties, we believe that the exchange
notes issued pursuant to the exchange offers in exchange for
outstanding notes may be offered for resale, resold and
otherwise transferred by you (unless you are our
affiliate within the meaning of Rule 405 under
the Securities Act) without compliance with the registration and
prospectus delivery provisions of the Securities Act, provided
that:
you are acquiring the exchange notes in the ordinary
course of your business; and
you have not engaged in, do not intend to engage in,
and have no arrangement or understanding with any person to
participate in, a distribution of the exchange notes.
If you are a broker-dealer and receive exchange notes for your
own account in exchange for outstanding notes that you acquired
as a result of market-making activities or other trading
activities, you must acknowledge that you will deliver this
prospectus in connection with any resale of the exchange notes.
See Plan of Distribution. Any holder of outstanding
notes that:
is our affiliate;
does not acquire exchange notes in the ordinary
course of its business; or
tenders its outstanding notes in the exchange offer
with the intention to participate, or for the purpose of
participating, in a distribution of exchange notes;
cannot rely on the position of the staff of the SEC enunciated
in
Morgan Stanley & Co. Incorporated
(available
June 5, 1991) and
Exxon Capital Holdings
Corporation
(available May 13, 1988), as interpreted in
the SECs letter to Shearman & Sterling, dated
available July 2, 1993, or similar no-action letters and,
in the absence of an exemption therefrom, must comply with the
registration and prospectus delivery requirements of the
Securities Act in connection with any resale of the exchange
notes.
Expiration Date
The exchange offers will expire at 12:00 a.m. midnight, New
York City time,
on ,
2006, unless extended by us. We do not currently intend to
extend the expiration date.
Withdrawal
You may withdraw the tender of your outstanding notes at any
time prior to the expiration of the applicable exchange offer.
We will return to you any of your outstanding notes that are not
accepted for any reason for exchange, without expense to you,
promptly after the expiration or termination of the applicable
exchange offer.
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Table of Contents
Conditions to the Exchange Offers
Each exchange offer is subject to customary conditions, which we
may waive. See The Exchange Offers Conditions
to the Exchange Offers.
Procedures for Tendering Outstanding Notes
If you are a record holder of notes and wish to participate in
an exchange offer, you must complete, sign and date the
applicable accompanying letter of transmittal, or a facsimile of
such letter of transmittal, according to the instructions
contained in this prospectus and the letter of transmittal. You
must then mail or otherwise deliver the applicable letter of
transmittal, or a facsimile of such letter of transmittal,
together with the outstanding notes and any other required
documents, to the exchange agent at the address set forth on the
cover page of the letter of transmittal.
If you hold outstanding notes through The Depository Trust
Company (DTC) and wish to participate in the
exchange offers, you must comply with the Automated Tender Offer
Program procedures of DTC by which you will agree to be bound by
the letter of transmittal. By signing, or agreeing to be bound
by, the letter of transmittal, you will represent to us that,
among other things:
you are not our affiliate within the
meaning of Rule 405 under the Securities Act;
you do not have an arrangement or understanding with
any person or entity to participate in the distribution of the
exchange notes;
you are acquiring the exchange notes in the ordinary
course of your business; and
if you are a broker-dealer that will receive
exchange notes for your own account in exchange for outstanding
notes that were acquired as a result of market-making
activities, that you will deliver a prospectus, as required by
law, in connection with any resale of such exchange notes.
Special Procedures for Beneficial Owners
If you are a beneficial owner of outstanding notes that are
registered in the name of a broker, dealer, commercial bank,
trust company or other nominee, and you wish to tender those
outstanding notes in the applicable exchange offer, you should
contact the registered holder promptly and instruct the
registered holder to tender those outstanding notes on your
behalf. If you wish to tender on your own behalf, you must,
prior to completing and executing the applicable letter of
transmittal and delivering your outstanding notes, either make
appropriate arrangements to register ownership of the
outstanding notes in your name or obtain a properly completed
bond power from the registered holder. The transfer of
registered ownership may take considerable time and may not be
able to be completed prior to the expiration date of the
exchange offers.
Guaranteed Delivery Procedures
If you wish to tender your outstanding notes and your
outstanding notes are not immediately available or you cannot
deliver your outstanding notes, the applicable letter of
transmittal or any other required documents, or you cannot
comply with the procedures under DTCs Automated Tender
Offer Program for transfer of
6
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book-entry interests, prior to the expiration date, you must
tender your outstanding notes according to the guaranteed
delivery procedures set forth in this prospectus under The
Exchange Offers Guaranteed Delivery Procedures.
Effect on Holders of Outstanding Notes
As a result of the making of, and upon acceptance for exchange
of all validly tendered outstanding notes pursuant to the terms
of the exchange offers, we will have fulfilled a covenant under
the registration rights agreement. Accordingly, there will be no
increase in the interest rate on the outstanding notes under the
circumstances described in the registration rights agreement. If
you do not tender your outstanding notes in the applicable
exchange offer, you will continue to be entitled to all the
rights and limitations applicable to the outstanding notes as
set forth in the applicable indenture, except Avago Technologies
Finance Pte. Ltd. and the subsidiary co-issuers and guarantors
of the notes will not have any further obligation to you to
provide for the exchange and registration of the outstanding
notes under the registration rights agreement. To the extent
that outstanding notes are tendered and accepted in the exchange
offers, the trading market for outstanding notes could be
adversely affected.
Consequences of Failure to Exchange
All untendered outstanding notes will continue to be subject to
the restrictions on transfer set forth in the outstanding notes
and in the applicable indenture. In general, the outstanding
notes may not be offered or sold, unless registered under the
Securities Act, except pursuant to an exemption from, or in a
transaction not subject to, the Securities Act and applicable
state securities laws. Other than in connection with the
exchange offers, we do not currently anticipate that we will
register the outstanding notes under the Securities Act.
Tax Consequences
The exchange of outstanding notes for exchange notes in the
exchange offer will not be a taxable event for United States
federal income tax purposes or Singapore tax purposes. See
Tax Consequences of the Exchange Offers.
Use of Proceeds
We will not receive any cash proceeds from the issuance of
exchange notes in the exchange offers. See Use of
Proceeds.
Exchange Agent
The Bank of New York is the exchange agent for the exchange
offers. The addresses and telephone numbers of the exchange
agent are set forth in the section captioned The Exchange
Offers Exchange Agent.
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8
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facilities), to the extent of the value of the assets securing
such debt, and be structurally subordinated to all obligations
of each of our subsidiaries that is not a guarantor of the
exchange senior notes.
The exchange senior subordinated notes will be our unsecured
senior subordinated obligations and will:
be subordinated in right of payment to our senior
debt, including the senior credit facilities and the senior
notes;
rank equally in right of payment to all of our
future senior subordinated debt;
be effectively subordinated in right of payment to
all of our secured debt (including the senior credit
facilities), to the extent of the value of the assets securing
such debt, and be structurally subordinated to all obligations
of each of our subsidiaries that is not a co-obligor or
guarantor of the exchange senior subordinated notes; and
rank senior in right of payment to all of our future
debt and other obligations that are, by their terms, expressly
subordinated in right of payment to the exchange senior
subordinated notes.
As of July 31, 2006, (1) the outstanding senior notes
and related guarantees ranked senior to the $250 million of
outstanding senior subordinated notes, (2) the outstanding
senior subordinated notes and related guarantees ranked junior
to approximately $750 million of senior indebtedness under
the senior notes, and (3) we had $250 million
available under our revolving credit facility (including letters
of credit).
Subsidiary Guarantors
Each of our subsidiaries that guarantees the obligations under
our senior credit facilities, other than the subsidiary
co-issuers of the exchange notes, will initially jointly and
severally and unconditionally guarantee the exchange senior
notes on a senior unsecured basis and the exchange senior
subordinated notes on a senior subordinated unsecured basis. The
guarantees of the exchange senior notes will rank equally with
all other senior unsecured indebtedness of the guarantors. The
guarantees of the exchange senior subordinated notes will be
subordinated to all senior indebtedness of the guarantors.
Optional Redemption
At any time prior to December 1, 2009, we may redeem some
or all of the exchange senior fixed rate notes for cash at a
redemption price equal to 100% of their principal amount plus an
applicable make-whole premium (as described in Description
of Exchange Senior Notes Optional
Redemption Fixed Rate Senior Notes) plus
accrued and unpaid interest to the redemption date. At any time
on or after December 1, 2009, we may redeem some or all of
the exchange senior fixed rate notes at the redemption prices
listed under Description of Exchange Senior
Notes Optional Redemption Fixed
Rate Senior Notes plus accrued interest on the senior
fixed rate notes to the date of redemption.
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Table of Contents
At any time prior to December 1, 2007, we may redeem some
or all of the exchange senior floating rate notes for cash at a
redemption price equal to 100% of their principal amount plus an
applicable make-whole premium (as described in Description
of Exchange Senior Notes Optional
Redemption Floating Rate Senior Notes) plus
accrued and unpaid interest to the redemption date. At any time
on or after December 1, 2007, we may redeem some or all of
the exchange senior floating rate notes at the redemption prices
listed under Description of Exchange Senior
Notes Optional Redemption Floating
Rate Senior Notes plus accrued interest on the senior
floating rate notes to the date of redemption.
At any time prior to December 1, 2010, we may redeem some
or all of the exchange senior subordinated notes for cash at a
redemption price equal to 100% of their principal amount plus an
applicable make-whole premium (as described in Description
of Exchange Senior Subordinated Notes Optional
Redemption) plus accrued and unpaid interest to the
redemption date. At any time on or after December 1, 2010,
we may redeem some or all of the exchange senior subordinated
notes at the redemption prices listed under Description of
Exchange Senior Subordinated Notes Optional
Redemption plus accrued interest on the senior
subordinated notes to the date of redemption.
Optional Redemption After Certain Equity Offerings and
Designated Asset Sales
At any time (i) prior to December 1, 2008, we may
redeem up to 35% of the exchange senior fixed rate notes with
proceeds that we or one of our parent companies raise in one or
more equity offerings and up to 35% of the exchange senior fixed
rate notes with proceeds of Designated Asset Sales (as defined)
at a redemption price equal to 110.125% of their principal
amount, (ii) prior to December 1, 2007, we may redeem
up to 35% of the exchange senior floating rate notes with
proceeds that we or one of our parent companies raise in one or
more equity offerings and up to 35% of the exchange senior
floating rate notes with proceeds of Designated Asset Sales at a
redemption price equal to 100% of their principal amount plus a
premium equal to the rate per annum on the exchange senior
floating rate notes applicable on the date on which notice of
redemption is given, and (iii) prior to December 1,
2008, we may redeem up to 35% of the exchange senior
subordinated notes with proceeds that we or one of our parent
companies raise in one or more equity offerings and up to 35% of
the exchange senior subordinated notes with proceeds of
Designated Asset Sales at a redemption price equal to 111.875%
of their principal amount, so long as, in each such case, at
least 50% (and, in the case of the exchange senior subordinated
notes, at least $150 million) of the aggregate principal
amount of the exchange notes issued of the applicable series
remains outstanding. See Description of Exchange Senior
Notes Optional Redemption and
Description of Exchange Senior Subordinated
Notes Optional Redemption.
Change of Control Offer
Upon the occurrence of a change of control, we will be required
to offer to repurchase the exchange notes at 101% of their
principal
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amount, plus accrued and unpaid interest to the repurchase date.
See Description of Exchange Senior Notes
Repurchase at the Option of Holders Change of
Control and Description of Exchange Senior
Subordinated Notes Repurchase at the Option of
Holders Change of Control.
Certain Indenture Provisions
The exchange senior notes and the exchange senior subordinated
notes are governed by separate indentures. The indentures
governing the exchange notes contain covenants limiting our
ability and the ability of our restricted subsidiaries to:
incur additional debt or issue certain preferred
shares;
pay dividends on or make distributions in respect of
our capital stock or make other restricted payments;
make certain investments;
sell certain assets;
create liens on certain assets to secure debt;
consolidate, merge, sell or otherwise dispose of all
or substantially all of our assets;
enter into certain transactions with our
affiliates; and
designate our subsidiaries as unrestricted
subsidiaries.
These covenants are subject to a number of important limitations
and exceptions. During any period in which the exchange notes
have an Investment Grade Rating (as defined) we will not be
subject to many of the covenants in the indentures. See
Description of Exchange Senior Notes and
Description of Exchange Senior Subordinated Notes.
No Public Market
The exchange notes will be freely transferable but will be new
securities for which there will not initially be a market.
Accordingly, we cannot assure you whether a market for the
exchange notes will develop or as to the liquidity of any
market. The initial purchasers in the private offering of the
outstanding notes have advised us that they currently intend to
make a market in the exchange notes. The initial purchasers are
not obligated, however, to make a market in the exchange notes,
and any such market-making may be discontinued by the initial
purchasers in their discretion at any time without notice.
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Predecessor(1)
Company
Nine
One
Nine
Months
Month
Months
Ended
Ended
Ended
Year Ended October 31,
July 31,
Nov. 30,
July 31,
2003
2004
2005
2005
2005
2006(2)
(In millions)
$
1,305
$
1,783
$
1,559
$
1,126
$
125
$
1,073
992
1,249
1,037
749
96
701
41
992
1,249
1,037
749
96
742
232
207
218
161
24
147
256
250
256
181
28
178
56
2
1,480
1,706
1,511
1,091
148
1,125
(175
)
77
48
35
(23
)
(52
)
114
1
4
7
10
8
(174
)
81
55
45
(23
)
(158
)
10
25
33
13
2
3
(184
)
56
22
32
(25
)
(161
)
7
17
9
14
1
12
$
(177
)
$
73
$
31
$
46
$
(24
)
$
(149
)
$
2,222
1,004
908
(1)
Predecessor refers to the Semiconductor Products Group business
segment of Agilent Technologies, Inc.
(2)
We completed the Acquisition on December 1, 2005. The
Acquisition was accounted for as a purchase business combination
under United States generally accepted accounting principles
(U.S. GAAP) and thus the financial results for all
periods from and after December 1, 2005 are not necessarily
comparable to the prior results of Predecessor. We did not have
any operating activity prior to December 1, 2005.
12
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Accordingly, our results for the nine months ended July 31,
2006 represent only the eight months of our operations since
completion of the Acquisition.
(3)
The divestiture of the Camera Module Business by Predecessor on
February 3, 2005 did not meet the criteria for discontinued
operations treatment under U.S. GAAP and, as such, its
historical results remain included in the results from
continuing operations as presented in this prospectus. The
following table presents the operating results of the Camera
Module Business:
Predecessor
Company
Nine
One
Months
Month
Ended
Ended
Nine Months
Year Ended October 31,
July 31
November 30,
Ended July 31,
2003
2004
2005
2005
2005
2006
(In millions)
$
58
$
296
$
69
$
69
(37
)
(63
)
(7
)
(7
)
(4)
Interest expense for the nine months ended July 31, 2006
includes an aggregate of $29 million of amortization of
debt issuance costs and commitment fees for expired facilities,
including $19 million of unamortized debt issuance costs
that were written off in conjunction with the repayment of the
term loan facility during this period. As of July 31, 2006,
we had permanently repaid all outstanding amounts under the term
loan facility.
(5)
For purposes of computing this ratio of earnings to fixed
charges, fixed charges consist of interest expense
on all indebtedness plus amortization of debt issuance costs and
an estimate of interest expense within rental expense.
Earnings consist of pre-tax income (loss) from
continuing operations plus fixed charges and unamortized
capitalized debt issuance costs. For the nine months ended
July 31, 2006, earnings were insufficient to cover fixed
charges by $120 million.
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As of July 31, 2006
(In millions)
$
500
250
250
4
$
1,004
14
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making it more difficult for us to satisfy our obligations with
respect to the notes, including our repurchase obligations;
increasing our vulnerability to adverse general economic and
industry conditions;
requiring us to dedicate a substantial portion of our cash flow
from operations to payments on our indebtedness, thereby
reducing the availability of our cash flow to fund working
capital, capital expenditures, research and development efforts,
execution of our business strategy and other general corporate
purposes;
limiting our flexibility in planning for, or reacting to,
changes in the economy and the semiconductor industry;
placing us at a competitive disadvantage compared to our
competitors with less indebtedness;
exposing us to interest rate risk to the extent of our variable
rate indebtedness;
limiting our ability to, or increasing the costs to, refinance
indebtedness; and
making it more difficult to borrow additional funds in the
future to fund working capital, capital expenditures and other
purposes.
incur additional indebtedness and issue disqualified stock or
preferred shares;
pay dividends or make other distributions on, redeem or
repurchase our capital stock or make other restricted payments;
make investments, acquisitions, loans or advances;
incur or create liens;
transfer or sell certain assets;
engage in sale and lease back transactions;
declare dividends or make other payments to us;
guarantee indebtedness;
engage in transactions with affiliates; and
consolidate, merge or transfer all or substantially all of our
assets.
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changes in end-user demand for the products manufactured and
sold by our customers;
the timing of receipt, reduction or cancellation of significant
orders by customers;
fluctuations in the levels of component inventories held by our
customers;
the gain or loss of significant customers;
market acceptance of our products and our customers
products;
our ability to develop, introduce and market new products and
technologies on a timely basis;
the timing and extent of product development costs;
new product and technology introductions by competitors;
fluctuations in manufacturing yields;
significant warranty claims, including those not covered by our
suppliers;
availability and cost of raw materials from our suppliers;
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changes in our product mix or customer mix;
intellectual property disputes;
loss of key personnel or the shortage of available skilled
workers; and
the effects of competitive pricing pressures, including
decreases in average selling prices of our products.
22
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cease the manufacture, use or sale of the infringing products,
processes or technology;
pay substantial damages for past, present and future use of the
infringing technology;
expend significant resources to develop non-infringing
technology;
license technology from the third party claiming infringement,
which license may not be available on commercially reasonable
terms, or at all;
lose the opportunity to license our technology to others or to
collect royalty payments based upon successful protection and
assertion of our intellectual property against others;
pay substantial damages to our customers or end users to
discontinue use or replace infringing technology with
non-infringing technology; or
relinquish intellectual property rights associated with one or
more of our patent claims, if such claims are held invalid or
otherwise unenforceable.
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any of the patents and pending patent applications that we
presently employ in our business, which currently consist
primarily of those that Agilent assigned, licensed or
sublicensed to us in connection with the Acquisition, will not
lapse or be invalidated, circumvented, challenged, abandoned or
licensed to others;
our intellectual property rights will provide competitive
advantages to us;
rights previously granted by Agilent, Hewlett-Packard or others
to intellectual property rights licensed or assigned to us,
including portfolio cross-licenses, will not hamper our ability
to assert our intellectual property rights against potential
competitors or hinder the settlement of currently pending or
future disputes;
any of our pending or future patent applications will be issued
or have the coverage originally sought;
our intellectual property rights will be enforced in certain
jurisdictions where competition may be intense;
any of the trademarks, copyrights, mask work rights, trade
secrets, know-how or other intellectual property rights that
Agilent has assigned, licensed or sublicensed to us in
connection with the Acquisition will not lapse or be
invalidated, circumvented, challenged, abandoned or licensed to
others; or
any of our pending or future trademark or copyright applications
will be issued or have the coverage originally sought.
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inability of our manufacturers to develop manufacturing methods
appropriate for our products and their unwillingness to devote
adequate capacity to produce our products;
manufacturing costs that are higher than anticipated;
decline in product reliability;
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inability to maintain continuing relationships with our
suppliers; and
reduced control over delivery schedules and products costs.
changes in political, regulatory, legal or economic conditions;
restrictive governmental actions, such as restrictions on the
transfer or repatriation of funds and foreign investments and
trade protection measures, including export duties and quotas
and customs duties and tariffs;
disruptions of capital and trading markets;
changes in import or export licensing requirements;
transportation delays;
economic downturns, civil disturbances or political instability;
geopolitical turmoil, including terrorism, war or political or
military coups;
changes in labor standards;
limitations on our ability under local laws to protect our
intellectual property;
nationalization and expropriation;
changes in tax laws;
currency fluctuations, which may result in our products becoming
too expensive for foreign customers; and
difficulty in obtaining distribution and support.
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currency exchange risks resulting from changes in currency
exchange rates and the implementation of exchange
controls; and
limitations on our ability to reinvest earnings from operations
in one country to fund the capital needs of our operations in
other countries.
any acquisitions would result in an increase in income;
any acquisitions would be successfully integrated into our
operations;
any disposition would result in decreased earnings, revenue or
cash flow;
any dispositions, investments, acquisitions or integrations
would divert management resources; or
any dispositions, investments, acquisitions or integrations
would result in a material adverse effect on our business,
results of operations or financial condition.
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changes in environmental or health and safety laws or
regulations;
the manner in which environmental or health and safety laws or
regulations will be enforced, administered or interpreted;
our ability to enforce and collect under indemnity agreements
and insurance policies relating to environmental
liabilities; or
the cost of compliance with future environmental or health and
safety laws or regulations or the costs associated with any
future environmental claims, including the cost of
clean-up
of
currently unknown environmental conditions.
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costs and expenses of the winding up;
amounts due to employees of our company in respect of wages,
retrenchment benefits, workmens compensation and provident
funds; and
all taxes due from our company.
30
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the subsidiary co-issuer issued the exchange notes or the
subsidiary guarantor incurred the subsidiary guarantee with the
intent to hinder, delay or defraud any present or future
creditor or contemplated insolvency with a design to favor one
or more creditors to the exclusion of others; or
the subsidiary co-issuer or subsidiary guarantor did not receive
fair consideration or reasonably equivalent value for issuing
the exchange notes or the subsidiary guarantee and, at the time
it issued the exchange notes or the subsidiary guarantee, the
subsidiary co-issuer or subsidiary guarantor:
was insolvent or became insolvent as a result of issuing the
exchange notes or the subsidiary guarantee;
was engaged or about to engage in a business or transaction for
which the remaining assets of the subsidiary co-issuer or
subsidiary guarantor constituted unreasonably small capital;
intended to incur, or believed that it would incur, debts beyond
its ability to pay those debts as they matured; or
was a defendant in an action for money damages, or had a
judgment for money damages declared against such subsidiary
co-issuer or subsidiary guarantor if, after final judgment, the
judgment is unsatisfied;
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our substantial indebtedness;
certain covenants in our debt documents;
general economic and market conditions;
the overall condition of the semiconductor industry;
our separation from Agilent;
our transformation from a business segment of Agilent to a
stand-alone company;
changes in tax laws;
the integration of acquired businesses, the performance of
acquired businesses and the prospects for future acquisitions;
the effect of war, terrorism, natural disasters or other
catastrophic events;
the effect of disruptions to our systems and infrastructure,
including our IT infrastructure and enterprise resource planning
system;
the timing and scope of technological advances;
the ability to retain and attract customers and key personnel;
risks relating to the transaction of business
internationally; and
the other factors set forth under Risk Factors.
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(1)
In connection with our equity capitalization, each of Parent,
Holdings and our company issued to its shareholder(s)
approximately $1,050 million of ordinary shares with
substantially similar terms.
(2)
Avago Technologies Holding Pte. Ltd. and its material
subsidiaries have guaranteed the senior credit facilities.
Subsidiaries of Avago Technologies Finance Pte. Ltd. that have
guaranteed the senior credit facilities (other than the
subsidiary co-issuers) have also initially guaranteed the notes.
(3)
In connection with the financing of the Acquisition, we issued
$1,000 million principal amount of notes and entered into
senior credit facilities in an aggregate principal amount of
$975 million, consisting of a six-year revolving credit
facility in an aggregate principal amount of $250 million
and a seven-year term loan facility in an aggregate principal
amount of up to $725 million, of which $475 million
was drawn at the closing of the Acquisition. Up to
$250 million was available under our term loan facility on
a delayed-draw basis until April 30, 2006. On
January 26, 2006, as permitted by our senior credit
agreement and the indentures governing the outstanding notes, we
drew the full $250 million under the delayed-draw portion
of our term loan facility to retire all of our redeemable
convertible preference shares. We used $420 million of net
proceeds from the sale of our Storage Business and
$245 million of net proceeds from the sale of our Printer
ASICs Business to permanently repay borrowings under our term
loan facility. As of July 31, 2006, we had permanently
repaid all outstanding amounts under the term loan facility.
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As of July 31, 2006
(In millions,
except share data)
500
250
250
4
1,004
1,057
(149
)
908
$
1,912
(1)
Excludes $11 million of outstanding letters of credit.
(2)
The senior floating rate notes due 2013 accrue interest at a
rate equal to LIBOR plus 5.5%. The interest rate on the senior
floating rate notes due 2013 was 10.73% as of July 31, 2006.
37
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Predecessor(1)
Company
Nine
One
Nine
Months
Month
Months
Ended
Ended
Ended
Year Ended October 31,
July 31,
Nov. 30,
July 31,
2003
2004
2005
2005
2005
2006(2)
(In millions)
$
1,305
$
1,783
$
1,559
$
1,126
$
125
$
1,073
992
1,249
1,037
749
96
701
41
992
1,249
1,037
749
96
742
232
207
218
161
24
147
256
250
256
181
28
178
56
2
1,480
1,706
1,511
1,091
148
1,125
(175
)
77
48
35
(23
)
(52
)
114
1
4
7
10
8
(174
)
81
55
45
(23
)
(158
)
10
25
33
13
2
3
(184
)
56
22
32
(25
)
(161
)
7
17
9
14
1
12
$
(177
)
$
73
$
31
$
46
$
(24
)
$
(149
)
$
861
$
921
$
840
$
829
$
2,222
1,004
$
609
$
650
$
529
$
591
$
908
11.1
10.2
46
(1)
Predecessor refers to the Semiconductor Products Group business
segment of Agilent Technologies, Inc.
38
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(2)
We completed the Acquisition on December 1, 2005. The
Acquisition was accounted for as a purchase business combination
under U.S. GAAP and thus the financial results for all periods
from and after December 1, 2005 are not necessarily
comparable to the prior results of Predecessor. We did not have
any operating activity prior to December 1, 2005.
Accordingly, our results for the nine months ended July 31,
2006 represent only the eight months of our operations since
completion of the Acquisition.
(3)
The divestiture of the Camera Module Business by the Predecessor
on February 3, 2005 did not meet the criteria for
discontinued operations treatment under U.S. GAAP and, as
such, its historical results remain included in our results from
continuing operations as presented in this prospectus. The
following table presents the operating results of the Camera
Module Business:
Predecessor
Company
Nine
One
Nine
Months
Month
Months
Ended
Ended
Ended
Year Ended October 31,
July 31
Nov. 30,
July 31,
2003
2004
2005
2005
2005
2006
(In millions)
$
58
$
296
$
69
$
69
(37
)
(63
)
(7
)
(7
)
(4)
Interest expense for the nine months ended July 31, 2006
includes an aggregate of $29 million of amortization of
debt issuance costs and commitment fees for expired facilities,
including $19 million of unamortized debt issuance costs
that were written off in conjunction with the repayment of the
term loan facility during this period. As of July 31, 2006,
we had permanently repaid all outstanding amounts under the term
loan facility.
(5)
For purposes of completing this ratio of earnings to fixed
charges, fixed charges consist of interest expense
on all indebtedness plus amortization of debt issuance costs and
an estimate of interest expense within rental expense.
Earnings consist of pre-tax income (loss) from
continuing operations plus fixed charges and unamortized
capitalized debt issuance costs. Earnings were insufficient to
cover fixed charges by $174 million for the year ended
October 31, 2003, $23 million for the one month ended
November 30, 2005 and $120 million for the nine months
ended July 31, 2006.
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AND RESULTS OF OPERATIONS
40
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general economic and market conditions in the semiconductor
industry and in our target markets;
our ability to specify, develop or acquire, complete, introduce
and market new products and technologies in a cost effective and
timely manner;
the timing, rescheduling or cancellation of expected customer
orders and our ability to manage inventory;
the rate at which our present and future customers and end-users
adopt our products and technologies in our target
markets; and
the qualification, availability and pricing of competing
products and technologies and the resulting effects on sales and
pricing of our products.
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As a Percentage of
Net Revenue
Predecessor
Company
Combined
Predecessor
Combined
Predecessor
One
Nine
Nine
Nine
Nine
Nine
Month
Months
Months
Months
Months
Months
Ended
Ended
Ended
Ended
Ended
Ended
November 30,
July 31,
July 31,
July 31,
July 31,
July 31,
2005
2006
2006
2005
2006
2005
$
125
$
1,073
$
1,198
$
1,126
100.0
%
100.0
%
96
701
797
749
66.5
66.5
41
41
3.4
96
742
838
749
69.9
66.5
24
147
171
161
14.3
14.3
28
178
206
181
17.2
16.1
56
56
4.7
2
2
0.2
148
1,125
1,273
1,091
106.3
96.9
(23
)
(52
)
(75
)
35
(6.3
)
3.1
114
114
9.5
8
8
10
0.7
0.9
(23
)
(158
)
(181
)
45
(15.1
)
4.0
2
3
5
13
0.4
1.2
(25
)
(161
)
(186
)
32
(15.5
)
2.8
1
12
13
14
1.1
1.2
$
(24
)
$
(149
)
$
(173
)
$
46
(14.4
)%
4.0
%
45
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Year Ended
October 31,
2004
2005
100.0
%
100.0
%
70.0
66.5
11.6
14.0
14.0
16.4
95.6
96.9
4.4
3.1
0.2
0.4
4.6
3.5
1.4
2.1
3.2
1.4
1.0
0.6
4.2
%
2.0
%
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49
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incur additional debt or issue certain preferred shares;
create liens on assets;
enter into sale-leaseback transactions;
engage in mergers or consolidations;
sell assets;
pay dividends and distributions, repurchase our capital stock or
make other restricted payments;
make investments, loans or advances;
make capital expenditures;
repay subordinated indebtedness (including the senior
subordinated notes);
make certain acquisitions;
amend material agreements governing our subordinated
indebtedness (including the senior subordinated notes);
change our lines of business; and
change the status of Holdings as a passive holding company.
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incur additional indebtedness and issue disqualified stock or
preferred shares;
pay dividends or make other distributions on, redeem or
repurchase our capital stock or make other restricted payments;
make investments, acquisitions, loans or advances;
incur or create liens;
transfer or sell certain assets;
engage in sale and lease back transactions;
declare dividends or make other payments to us;
guarantee indebtedness;
engage in transactions with affiliates; and
consolidate, merge or transfer all or substantially all of our
assets.
Remainder
of
2008 to
2010 to
Total
2006
2007
2009
2011
Thereafter
(In millions)
$
1,000
$
$
$
$
$
1,000
844
27
109
218
218
272
35
3
12
15
4
1
8
1
2
3
2
51
51
324
39
40
71
59
115
(1)
Represents our outstanding notes.
51
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(2)
Represents interest payments on our outstanding notes assuming
the same rate on the senior floating rate notes as was in effect
on July 31, 2006.
(3)
Includes operating lease commitments for facilities and
equipment that we have entered into with Agilent and other third
parties.
(4)
Includes capital lease commitments for equipment that we have
entered into with third parties.
(5)
We purchase components from a variety of suppliers and use
several contract manufacturers to provide manufacturing services
for our products. During the normal course of business, we issue
purchase orders with estimates of our requirements several
months ahead of the delivery dates. However, our agreements with
these suppliers usually allow us the option to cancel,
reschedule, and adjust our requirements based on our business
needs prior to firm orders being placed. Typically purchase
orders outstanding with delivery dates within 30 days are
non-cancelable.
(6)
We have entered into several agreements related to IT, human
resources, financial advisory services and other services
agreements.
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Analog.
All electrical signals fall into one
of two categories: analog or digital. Analog signals represent
real-world phenomena, such as temperature, pressure, sound,
speed and motion. This information can be detected and measured
using analog sensors or receivers, which generate continuously
varying voltages that represent real-world phenomena. The
signals from these sensors are initially processed using analog
methods, such as amplification, filtering and shaping. Through
the use of very specific voltages, these signals can be
converted to digital form, represented by 1s and 0s, for further
manipulation or storage. Digital signals are frequently
converted back to analog form to enable a wide variety of
real-world experiences such as voice communications, video
display and audio output. In this way, analog semiconductors and
mixed-signal semiconductors (which combine analog and digital
capabilities) play a critical role in computing, communications
and consumer electronics products and applications.
Digital/Logic.
In contrast to analog
semiconductors, which process real-world signals, digital/logic
semiconductor devices process digital data, which are
represented by 1s and 0s. Digital/logic devices perform
functions that are typically computational in nature. Examples
of digital/logic devices include
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microprocessors, digital signal processors and application
specific integrated circuits (ASICs). In a cellular phone, for
example, digital/logic components, such as baseband processors,
compress the voice signal, converting the data into a less
memory-intensive format so that wireless transmission can take
place quickly. According to WSTS, digital/logic devices
represented approximately 49%, or $112.4 billion, of global
semiconductor industry sales in 2005.
Memory.
Memory devices store digital data.
There are two major types of memory devices: non-volatile
memory, such as flash; and volatile memory, such as dynamic
random access memory (DRAM) or static random access memory.
Non-volatile memory retains data once power is removed, whereas
volatile memory loses its data once power is removed. According
to WSTS, memory devices represented approximately 21%, or
$48.5 billion, of global semiconductor industry sales in
2005.
Degree of Integration.
Integration refers to
the combination of analog, digital and memory functions on a
single chip. Integration can be achieved by combining two or
more analog features on a single chip or by combining different
elements, such as analog, digital and memory, on a single chip,
often referred to as a
system-on-a-chip.
In addition to chip-level integration, semiconductors
increasingly must be designed with system-level integration
considerations, including die size and packaging requirements.
System-level designs may use module-based techniques to reduce
size, weight and power requirements, and may combine multiple
semiconductors and discrete components into a single package.
This approach ensures each components functional
compatibility, provides upgrade flexibility and takes advantage
of the design simplicity of separate semiconductors to minimize
cost and design and test times.
Materials and Process
Technologies.
Semiconductors are manufactured
using different materials and process technologies. Silicon is
the most commonly used material, and complementary metal-oxide
semiconductor (CMOS) is a common process technology. Other
materials include gallium arsenide (GaAs), silicon germanium and
indium phosphide, among others. Every material must undergo a
process technology during fabrication in order to manufacture
the device. Materials such as GaAs and indium phosphide are used
for the fabrication of RF and optoelectronic devices, including
lasers, LEDs, semiconductor optical amplifiers, modulators and
photo-detectors. These materials have higher electrical
conductivity than silicon, leading to increased performance and
efficiency at high frequencies, thus making them ideally suited
for wireless and fiber communications components.
Outsourcing.
Historically, the semiconductor
industry was primarily comprised of integrated device
manufacturers, or IDMs, that designed, manufactured, assembled
and tested semiconductors at their own facilities. In recent
years, there has been a trend to outsource various stages of the
manufacturing process to reduce the high fixed costs and capital
requirements associated with the complex design and
manufacturing processes. As a result, new types of semiconductor
companies have emerged, including fabless semiconductor
companies, independent foundries and semiconductor assembly and
test service providers. Fabless semiconductor suppliers design
semiconductors but use independent foundries or
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third party IDMs for manufacturing. Independent foundries
produce semiconductor components for third parties on a
contract, outsourced manufacturing basis. Assembly and test
service providers assemble, test and package semiconductors to
fit efficiently into electronic devices.
Shift of Manufacturing Centers to the Asia/Pacific
Region.
Semiconductor manufacturers and assembly
and test service providers have shifted a significant portion of
their operations to low cost locations, such as Malaysia,
Singapore, Taiwan and China. We expect that semiconductor
production will increasingly be located in the Asia/Pacific
region. Production of consumer electronics is undergoing a
similar migration to the Asia/Pacific region, driven by low cost
manufacturing and engineering resources. As a result, the global
shift of semiconductor suppliers to the Asia/Pacific region not
only offers substantial manufacturing cost savings benefits, but
also provides close proximity to a large and growing customer
base.
Globalization of Customers and Reliance on Global
Semiconductor Suppliers.
Historically, OEMs
relied on multiple suppliers to support their semiconductor
needs. Recently, however, the customer base for semiconductor
suppliers has become more concentrated and global. These global
customers require their semiconductor suppliers to demonstrate
financial stability and maintain global supply chain management
capabilities. These customers also demand a deep understanding
of their increasingly complex technical requirements, which
requires semiconductor suppliers to maintain design centers near
the customers. As a result, semiconductor customers are relying
on fewer suppliers to support their needs. We believe that
semiconductor suppliers with design centers near customers with
the ability to service a global supply chain with a broad
product portfolio are best positioned to capitalize on this
trend.
Growth in Semiconductor Components for Consumer
Electronics.
Historically, growth in the
semiconductor industry has been driven by demand in the
computing, networking and wireless markets and from a broad set
of industrial and military applications. In recent years, demand
for semiconductors has been increasingly driven by the growth in
demand for consumer electronics, such as media players, game
consoles and cellular phones. Aggregate semiconductor revenue
generated by consumer electronics (including wireless,
traditional consumer devices and automotive electronics) grew
from $43.4 billion in 1998 to $106.1 billion in 2005,
according to iSuppli. As uses for consumer electronics devices
expand and demand for additional features, functionality and
performance requirements in consumer electronics devices grows,
we expect demand for semiconductors for consumer electronics
devices to continue to grow faster than the overall
semiconductor market.
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RF Amplifiers
RF Filters
RF Front End
Modules (FEMs)
Image Sensors
Infrared Transceivers
LEDs
Ambient Light Sensors
Voice and data
communications
Camera phone
Infrared file transfer
(to PC or printer)
Keypad and display
backlighting
Backlighting control
BenQ/Siemens
LG
Motorola
Nokia
Samsung
Sony Ericsson
Fiber optic
transceivers
Serializer/deserializer
(Serdes) ASICs
LNA
mm-wave mixers
Diodes
Telecommunications
Data communications
Storage area networking
Servers
Base stations
Alcatel
Cisco
Ericsson
HP
Huawei
IBM
Nortel
Siemens
LEDs
Solid-state lighting
assemblies
Motion control encoders
and subsystems
Optocouplers
In-car infotainment
Displays
Lighting
Factory automation
Motor controls
Power supplies
ABB
General Electric
Mitsubishi Electric Corp
Rockwell Automation
Siemens
Optical mouse
sensors
Motion control encoders
and subsystems
LNA
Optical mice
Printers
Office automation
Optical disk drives
W-LAN
WiMAX
Cisco
Epson
High Tech Computer
Corp
HP
Intel
Konica Minolta
Logitech
Motorola
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Citizen Electronics Company Ltd.,
Epcos AG, Infineon Technologies AG, Lite-On Technology
Corporation, Nichia Corporation, Osram GmbH, RF Micro Devices,
Inc., Rohm, Skyworks Solutions, Inc., STMicroelectronics, and
Vishay Corporation.
Finisar Corporation, JDS Uniphase
Corporation, NEC, STMicroelectronics and Texas Instruments
Incorporated
Fairchild, Heidenhain, IBM
Microelectronics, Kingbright/Everlight, Kodenshi, Lite-On
Technology Corporation, NEC, Osram GmbH, Sharp, Stegmann,
Toshiba,
Kodenshi, Pixart, Rohm, Sharp,
STMicroelectronics, Vishay
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Administration, Manufacturing,
Research and Development and Sales and Marketing
Leased
234,000
Manufacturing and Research and
Development
Leased
52,000
Manufacturing and Research and
Development
Owned
52,000
Research and Development and Sales
and Marketing
Leased
28,000
Manufacturing and Research and
Development, Administration
Owned and
Leased
399,000 Owned
116,000 Leased
Administration, Research and
Development and Sales and Marketing
Leased
183,000
Manufacturing and Research and
Development
Owned
1,058,000
Administration, Research and
Development and Sales and Marketing
Leased
21,000
Research and Development
Leased
59,000
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66
Chairman of the Board of Directors
54
President, Chief Executive Officer
and Director
59
President, Asia
52
Senior Vice President, Finance and
Chief Financial Officer
46
Senior Vice President and General
Counsel
47
Senior Vice President, Sales and
Marketing
36
Director
47
Director
71
Director
55
Director
37
Director
52
Director
55
Director
63
Director
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the integrity of our financial statements;
our compliance with legal and regulatory requirements;
independent registered public accounting firms
qualifications and independence; and
the performance of our internal audit function and independent
registered public accounting firm.
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Long-Term Compensation
Awards
Annual
Securities
Payouts
Compensation
Other Annual
Underlying
Long-Term
All Other
Salary
Bonus
Compensation
Options/SARs
Incentive Plans
Compensation
($)
($)
($)
(#)
($)
($)
Dick M. Chang (1)
Chairman of the Board of Directors
and former Chief Executive Officer
Hock E. Tan (2)
President and
Chief Executive Officer
Bian-Ee Tan
President, Asia
Mercedes Johnson
Senior Vice President, Finance and
Chief Financial Officer
Jeffrey S. Henderson
Senior Vice President,
Sales and Marketing
(1)
Mr. Chang served as our Chief Executive Officer from
December 2005 until March 2006.
(2)
Mr. Hock E. Tan joined us as President and Chief
Executive Officer in March 2006.
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Potential Realizable
Individual Grants
Value at
% of Total
Assumed Annual Rates
Number of
Options
of Stock Price
Securities
Granted to
Exercise
Appreciation for
Underlying
Employees in Last
or Base
Expiration
Option Term
Options Granted
Fiscal Year
Price
Date
5%
10%
1,083,334
$
5.00
11/30/2015
$
3,406,515
$
8,632,777
266,666
(1)
1.25
11/18/2012
$
1,539,941
$
2,257,232
2,350,000
5.00
11/30/2015
$
7,389,512
$
18,726,474
1,800,000
5.00
11/30/2015
$
5,660,052
$
14,343,682
415,000
5.00
11/30/2015
$
1,304,956
$
3,307,016
301,667
5.00
11/30/2015
$
948,584
$
2,403,898
15,979
(1)
1.25
1/14/2012
$
87,736
$
123,230
47,952
(1)
1.25
11/25/2011
$
261,138
$
364,233
5,992
(1)
1.25
11/13/2010
$
30,661
$
40,547
13,448
(1)
1.25
11/12/2010
$
68,801
$
90,973
5,992
(1)
1.25
10/22/2010
$
30,549
$
40,272
79
(1)
1.25
5/16/2010
$
392
$
505
3,891
(1)
1.25
2/3/2010
$
18,991
$
24,109
(1)
Represents option to purchase ordinary shares of Parent granted
in substitution of options to purchase Agilents common
stock.
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Number of Securities
Underlying
Value of Unexercised
Unexercised Options
In-the-money
Options
at Year-end (#)
at Year-end
Exercisable
Unexercisable
Exercisable
Unexercisable
266,666
1,083,334
$
1,394,663
$
1,603,334
2,350,000
3,478,000
1,800,000
2,664,000
415,000
614,200
93,333
301,667
488,132
446,467
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each person who is known by us to beneficially own more than 5%
of the equity securities of Parent;
each of our directors;
each of our named executive officers; and
all of our directors and executive officers as a group.
Ordinary Shares Beneficially Owned(1)
Number
Percent
172,676,402
80.6
%
L-2346 Luxembourg
22,670,917
10.6
#60-18, Tower 2
The Atrium @ Orchard
Singapore 238891
15,113,944
7.1
168 Robinson Road
#37-01 Capital Tower
Singapore 068912
266,666
*
200,000
*
400,000
*
60,000
*
93,333
*
80,083,035
37.4
78,733,338
36.8
150,000
*
80,083,035
37.4
78,733,338
36.8
78,733,338
36.8
80,083,035
37.4
160,086,372
74.8
%
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(1)
Includes shares held in the beneficial owners name or
jointly with others, or in the name of a bank, nominee or
trustee for the beneficial owners account.
(2)
Bali Investments S.àr.l. is a Luxembourg corporation, the
shareholders of which include overseas investment funds
affiliated with KKR and Silver Lake. As of August 31, 2006,
the total number of ordinary shares of Avago Technologies
Limited that are deemed held indirectly by (a) the KKR
funds through Bali Investments S.àr.l. was 80,083,035, or
37.4% of the total ordinary shares outstanding, and (b) by
the Silver Lake funds through Bali Investments S.àr.l. was
78,733,338, or 36.8% of the total ordinary shares outstanding,
in each case based on the ownership interests of such entities
in Bali Investments S.àr.l.
Shares deemed held indirectly by the KKR funds include
(a) 17,782,701 shares held by KKR Millennium Fund
(Overseas), Limited Partnership (KKR Millennium Overseas
Fund), the general partner of which is KKR Associates
Millennium (Overseas), Limited Partnership, the general partner
of which is KKR Millennium Limited,
(b) 35,407,740 shares held by KKR European Fund,
Limited Partnership (KKR Europe), the general
partner of which is KKR Associates Europe, Limited Partnership,
the general partner of which is KKR Europe Limited,
(c) 23,748,545 shares held by KKR European
Fund II, Limited Partnership (KKR
Europe II), the general partner of which is KKR
Associates Europe II, Limited Partnership, the general
partner of which is KKR Europe II Limited, and
(d) 3,144,049 shares held by KKR Partners
(International), Limited Partnership (KKR
International, together with KKR Millennium Overseas Fund,
KKR Europe and KKR Europe II, the KKR Funds),
the general partner of which is KKR 1996 Overseas, Limited.
Messrs. Henry R. Kravis, George R. Roberts, James H.
Greene, Jr., Paul E. Raether, Michael W. Michelson, Perry
Golkin, Johannes P. Huth, Todd A. Fisher, Alexander Navab, Marc
Lipschultz, Jacques Garaialde and Reinhard Gorenflos, as
shareholder of one or more of KKR Millennium Limited, KKR Europe
Limited, KKR Europe II Limited, and KKR 1996 Overseas
Limited, may be deemed to share beneficial ownership of any
shares beneficially owned by the KKR Funds, respectively, but
disclaim such beneficial ownership except to the extent of their
pecuniary interest therein. The above referenced shares are
indirectly owned through the KKR Funds investments in Bali
Investments S.àr.l., which directly holds shares in Avago
Technologies Limited. The address of each of the KKR Funds is
Suite 500, 603 - 7th Avenue S.W., Calgary, Canada.
Shares deemed held indirectly by the Silver Lake funds include
(a) 78,510,144 shares held by Silver Lake
Partners II Cayman, L.P. (Silver Lake II),
the general partner of which is Silver Lake Technology
Associate II Cayman, L.P., the general partner of which is
Silver Lake (Offshore) AIV GP II, Ltd., and
(b) 223,194 shares held by Silver Lake Technology
Investors II Cayman, L.P. (Silver Lake
Technology II and, together with Silver Lake II,
the Silver Lake Funds), the general partner of which
is Silver Lake (Offshore) AIV GP II, Ltd.
Messrs. James A. Davidson, Glenn H. Hutchins, David J.
Roux, Alan K. Austin, John R. Joyce, Michael J. Bingle and
Kenneth Y. Hao, as Directors of Silver Lake (Offshore) AIV
GP II, Ltd., may be deemed to share beneficial ownership of
any shares beneficially owned by the Silver Lake Funds, but
disclaim such beneficial ownership except to the extent of their
pecuniary interest therein. The above referenced shares are
indirectly owned through the Silver Lake Funds investments
in Bali Investments S.àr.l., which directly holds shares in
Avago Technologies Limited. The address of each of the Silver
Lake Funds is Walker House, PO Box 908GT, Mary Street,
George Town, Grand Cayman, Cayman Islands.
(3)
Includes 266,666 shares that Mr. Chang has the right
to acquire within 60 days after August 31, 2006 upon
the exercise of share options.
(4)
Includes 93,333 shares that Mr. Henderson has the
right to acquire within 60 days after August 31, 2006
upon the exercise of share options.
(5)
Mr. Clammer is an interest holder in the general partners
of the KKR Funds. Amounts disclosed for Mr. Clammer include
shares beneficially owned by the KKR Funds. Mr. Clammer
disclaims beneficial ownership of any shares owned directly or
indirectly by the KKR Funds, except to the extent of his
pecuniary interest therein.
(6)
Mr. Davidson is a Director of Silver Lake (Offshore) AIV
GP II, Ltd. Amounts disclosed for Mr. Davidson include
shares beneficially owned by the Silver Lake Funds.
Mr. Davidson disclaims beneficial
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ownership of any shares owned directly or indirectly by the
Silver Lake Funds, except to the extent of his pecuniary
interest therein.
(7)
Mr. Greene is an interest holder in the general partners of
the KKR Funds. Amounts disclosed for Mr. Greene include
shares beneficially owned by the KKR Funds. Mr. Greene
disclaims beneficial ownership of any shares owned directly or
indirectly by the KKR Funds, except to the extent of his
pecuniary interest therein.
(8)
Mr. Hao is a Director of Silver Lake (Offshore) AIV
GP II, Ltd. Amounts disclosed for Mr. Hao include
shares beneficially owned by the Silver Lake Funds. Mr. Hao
disclaims beneficial ownership of any shares owned directly or
indirectly by the Silver Lake Funds, except to the extent of his
pecuniary interest therein.
(9)
Mr. Joyce is a Director of Silver Lake (Offshore) AIV
GP II, Ltd. Amounts disclosed for Mr. Joyce include
shares beneficially owned by the Silver Lake Funds.
Mr. Joyce disclaims beneficial ownership of any shares
owned directly or indirectly by the Silver Lake Funds, except to
the extent of his pecuniary interest therein.
(10)
Mr. Marks is an interest holder in the general partners of
the KKR Funds. Amounts disclosed for Mr. Marks include
shares beneficially owned by the KKR Funds. Mr. Marks
disclaims beneficial ownership of any shares owned directly or
indirectly by the KKR Funds, except to the extent of his
pecuniary interest therein.
(11)
Includes 359,999 shares that officers have the right to
acquire within 60 days after August 31, 2006 upon the
exercise of share options.
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three designees of KKR for so long as KKR and its affiliates
either continue to own, directly or indirectly, at least 24% of
Parents outstanding ordinary shares or have not
transferred any shares to an unaffiliated third party, provided
that KKR has the right to designate two directors for so long as
KKR and its affiliates continue to own, directly or indirectly,
at least 15% of Parents outstanding ordinary shares and
one director for so long as KKR and its affiliates continue to
own, directly or indirectly, at least 5% of Parents
outstanding ordinary shares;
three designees of Silver Lake for so long as Silver Lake and
its affiliates either continue to own, directly or indirectly,
at least 24% of Parents outstanding ordinary shares or
have not transferred any shares to an unaffiliated third party,
provided that Silver Lake has the right to designate two
directors for so long as Silver Lake and its affiliates continue
to own, directly or indirectly, at least 15% of Parents
outstanding ordinary shares and one director for so long as
Silver Lake and its affiliates continue to own, directly or
indirectly, at least 5% of Parents outstanding ordinary
shares;
one designee of Seletar Investments Pte. Ltd., an affiliate of
Temasek Capital (Private) Limited (Seletar), so long
as it either continues to own, directly or indirectly, 2.5% of
Parents outstanding shares and has not sold any of its
shares, or continues to own, directly or indirectly, 5% of
Parents outstanding shares;
Parents Chief Executive Officer; and
two directors mutually agreeable to the Sponsors (KKR and Silver
Lake).
changing the size or composition of Parents Board of
Directors;
amending, modifying or waiving any provision of Parents
memorandum of association or articles of association;
undertaking any share split, reverse stock split,
recapitalization, exchange or any other combination in any
manner of Parents equity securities in connection with
which any Equity Investor would receive more than a de minimis
amount of cash in lieu of fractional shares;
entering into a change of control transaction;
acquiring or disposing of assets or entering into joint ventures
with a value in excess of $25 million;
undertaking an initial public offering;
issuing any equity securities or derivative equity securities,
other than pursuant to employee benefit and incentive plans
approved by the Sponsors;
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repurchasing or redeeming any equity securities, other than from
employees pursuant to arrangements approved by Parents
Board of Directors;
declaring or paying any dividend or distributions to
equityholders, other than payments by wholly owned subsidiaries;
creating or materially amending any material employee benefit or
incentive compensation plan;
incurring indebtedness in excess of $25 million;
filing for voluntary liquidation, dissolution, receivership,
bankruptcy or similar insolvency proceeding;
entering into transactions outside of the ordinary course of
business or that are reasonably likely to require expenditures
or generate proceeds in excess of $10 million;
hiring or firing the Chief Executive Officer or any other member
of senior management, or approving the compensation arrangements
of any of them;
commencing any litigation, dispute or claim involving amounts in
dispute in excess of $5 million, or settling any
litigation, dispute or claim for a payment or payments, or
discounts on products or services, in excess of $5 million,
whether pursuant to a license or otherwise, or which restrict
the business of Parent or its subsidiaries in any material
manner;
entering into certain transactions with the Sponsors or any of
their affiliates;
approving or modifying annual operating budgets or capital
expenditure budgets;
making material changes in the nature of the business of Parent
or its subsidiaries;
replacing or removing independent auditors; and
amending, waiving or otherwise modifying certain shareholders
agreements.
pursuant to the exchange, conversion, or exercise terms of other
equity or debt securities;
to employees, directors or consultants;
in connection with any acquisition, business combination or
joint venture approved by the Sponsors;
in connection with an initial public offering;
in connection with any proportional stock split, stock dividend
or stock recapitalization;
which take the form of equity kickers in debt
financing transactions;
by a wholly owned subsidiary company to Parent or Holdings or
another subsidiary of Parent or Holdings; or
for which the Sponsors have waived the preemptive rights.
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a $725 million term loan facility, and
a $250 million equivalent revolving credit facility.
a pledge of 100% of our capital stock and 100% of the capital
stock of each of our material subsidiaries; and
a security interest in substantially all of our tangible and
intangible assets and the tangible and intangible assets of each
guarantor.
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incur additional indebtedness or issue preferred shares;
create liens on assets;
enter into sale-leaseback transactions;
engage in mergers or consolidations;
sell assets;
pay dividends and distributions or repurchase our capital stock;
make investments, loans or advances;
make capital expenditures;
repay subordinated indebtedness (including the senior
subordinated notes);
make certain acquisitions;
amend material agreements governing our subordinated
indebtedness (including the senior subordinated notes);
change our lines of business; and
change the status of Holdings as a passive holding company.
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if any changes in law, SEC rules or regulations or applicable
interpretations thereof by the SEC do not permit us to effect
the exchange offers as contemplated by the registration rights
agreement; or
if any holder of the outstanding notes notifies us within
30 days after such holder becomes aware of the following
restrictions:
such holder is prohibited by applicable law or SEC rules or
regulations from participating in any exchange offer,
such holder may not resell the exchange notes acquired by it in
the exchange offers to the public without delivering a
prospectus and that this prospectus is not appropriate or
available for such resales by such holder, or
such holder is a broker-dealer who elects to exchange the
outstanding notes acquired for its own account as a result of
market-making activities or other trading activities for the
exchange notes, and holds outstanding note acquired directly
from us or one of our affiliates.
you are not our affiliate or an affiliate of any guarantor
within the meaning of Rule 405 of the Securities Act;
you have no arrangement or understanding with any person to
participate in a distribution (within the meaning of the
Securities Act) of the exchange notes in violation of the
provisions of the Securities Act;
you are not engaged in, and do not intend to engage in, a
distribution of the exchange notes; and
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you are acquiring the exchange notes in the ordinary course of
your business.
you are not our affiliate or an affiliate of any guarantor
within the meaning of Rule 405 under the Securities Act;
you do not have an arrangement or understanding with any person
to participate in a distribution of the exchange notes;
you are not engaged in, and do not intend to engage in, a
distribution of the exchange notes; and
you are acquiring the exchange notes in the ordinary course of
your business.
you cannot rely on the position of the SEC set forth in
Morgan Stanley & Co. Incorporated
(available
June 5, 1991) and
Exxon Capital Holdings
Corporation
(available May 13, 1988), as interpreted in
the SECs letter to Shearman & Sterling, dated
July 2, 1993, or similar no-action letters; and
in the absence of an exception from the position stated
immediately above, you must comply with the registration and
prospectus delivery requirements of the Securities Act in
connection with any resale of the exchange notes.
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to delay accepting for exchange any outstanding notes (if we
amend or extend the applicable exchange offer);
to extend any exchange offer or to terminate any exchange offer
if any of the conditions set forth below under
Conditions to the Exchange Offers have
not been satisfied, by giving oral or written notice of such
delay, extension or termination to the exchange agent; and
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subject to the terms of the registration rights agreement, to
amend the terms of any exchange offer in any manner, provided
that in event of a material change in the terms of any exchange
offer, including the waiver of a material condition, we will
extend the applicable offer period if necessary so that at least
five business days remain in the applicable exchange offer
following notice of the material change;
the exchange offers or the making of any exchange by a holder
violates any applicable law or interpretation of the SEC; or
any action or proceeding has been instituted or threatened in
any court or by or before any governmental agency with respect
to the exchange offers that, in our judgment, would reasonably
be expected to impair our ability to proceed with the exchange
offers.
the representations described under Procedures
for Tendering Outstanding Notes and Plan of
Distribution; or
any other representations as may be reasonably necessary under
applicable SEC rules, regulations, or interpretations to make
available to us an appropriate form for registration of the
exchange notes under the Securities Act.
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complete, sign and date the letter of transmittal, or a
facsimile of the letter of transmittal, have the signature(s) on
the letter of transmittal guaranteed if required by the letter
of transmittal and mail or deliver such letter of transmittal or
facsimile thereof to the exchange agent at the address set forth
below under Exchange Agent prior to the
expiration date; or
comply with DTCs Automated Tender Offer Program procedures
described below.
In addition, either:
the exchange agent must receive certificates for outstanding
notes along with the applicable letter of transmittal prior to
the expiration date;
the exchange agent must receive a timely confirmation of
book-entry transfer of outstanding notes into the exchange
agents account at DTC according to the procedures for
book-entry transfer described below or a properly transmitted
agents message prior to the expiration date; or
you must comply with the guaranteed delivery procedures
described below.
make appropriate arrangements to register ownership of the
outstanding notes in your name; or
obtain a properly completed bond power from the registered
holder of outstanding notes.
by a registered holder of the outstanding notes who has not
completed the box entitled Special Registration
Instructions or Special Delivery Instructions
on the applicable letter of transmittal; or
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for the account of an eligible guarantor institution.
DTC has received an express acknowledgment from a participant in
its Automated Tender Offer Program that is tendering outstanding
notes that are the subject of the book-entry confirmation;
the participant has received and agrees to be bound by the terms
of the applicable letter of transmittal, or in the case of an
agents message relating to guaranteed delivery, that such
participant has received and agrees to be bound by the
applicable notice of guaranteed delivery; and
we may enforce that agreement against such participant.
outstanding notes or a timely book-entry confirmation of such
outstanding notes into the exchange agents account at the
book-entry transfer facility; and
a properly completed and duly executed letter of transmittal and
all other required documents or a properly transmitted
agents message.
you are not our affiliate or an affiliate of any guarantor
within the meaning of Rule 405 under the Securities Act;
you do not have an arrangement or understanding with any person
or entity to participate in a distribution of the exchange
notes; and
you are acquiring the exchange notes in the ordinary course of
your business.
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the tender is made through an eligible guarantor institution;
prior to the expiration date, the exchange agent receives from
such eligible guarantor institution either a properly completed
and duly executed notice of guaranteed delivery, by facsimile
transmission, mail, or hand delivery or a properly transmitted
agents message and notice of guaranteed delivery, that
(1) sets
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forth your name and address, the certificate number(s) of such
outstanding notes and the principal amount of outstanding notes
tendered; (2) states that the tender is being made thereby;
and (3) guarantees that, within three New York Stock
Exchange trading days after the expiration date, the letter of
transmittal, or facsimile thereof, together with the outstanding
notes or a book-entry confirmation, and any other documents
required by the letter of transmittal, will be deposited by the
eligible guarantor institution with the exchange agent; and
the exchange agent receives the properly completed and executed
letter of transmittal or facsimile thereof, as well as
certificate(s) representing all tendered outstanding notes in
proper form for transfer or a book-entry confirmation of
transfer of the outstanding notes into the exchange agents
account at DTC all other documents required by the letter of
transmittal within three New York Stock Exchange trading days
after the expiration date.
the exchange agent must receive a written notice, which may be
by telegram, telex, facsimile or letter, of withdrawal at its
address set forth below under Exchange
Agent; or
you must comply with the appropriate procedures of DTCs
Automated Tender Offer Program system.
Any notice of withdrawal must:
specify the name of the person who tendered the outstanding
notes to be withdrawn;
identify the outstanding notes to be withdrawn, including the
certificate numbers and principal amount of the outstanding
notes; and
where certificates for outstanding notes have been transmitted,
specify the name in which such outstanding notes were
registered, if different from that of the withdrawing holder.
the serial numbers of the particular certificates to be
withdrawn; and
a signed notice of withdrawal with signatures guaranteed by an
eligible institution unless your are an eligible guarantor
institution.
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Overnight Carrier:
The Bank of New York
Reorganization Section
101 Barclay Street, 7E
New York, New York 10286
Attn: Bernard Arsenec
(212) 235-2261
To Confirm by Telephone:
(212) 235-2356
For Information Call:
(212) 235-2356
The Bank of New York
101 Barclay Street
Corporate Trust Services Window
Ground level
New York, New York 10286
Attn: Bernard Arsenec
Reorganization Section
certificates representing outstanding notes for principal
amounts not tendered or accepted for exchange are to be
delivered to, or are to be issued in the name of, any person
other than the registered holder of outstanding notes tendered;
tendered outstanding notes are registered in the name of any
person other than the person signing the letter of
transmittal; or
a transfer tax is imposed for any reason other than the exchange
of outstanding notes under the exchange offers.
93
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as set forth in the legend printed on the outstanding notes as a
consequence of the issuance of the outstanding notes pursuant to
the exemptions from, or in transactions not subject to, the
registration requirements of the Securities Act and applicable
state securities laws; and
as otherwise set forth in the prospectus distributed in
connection with the private offerings of the outstanding notes.
94
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unsecured senior obligations of the Issuers;
pari passu
in right of payment with all existing and
future senior Indebtedness of the Issuers;
effectively subordinated to all secured Indebtedness (including
the Senior Credit Facilities) of the Issuers;
senior in right of payment to any future Subordinated
Indebtedness (as defined with respect to the senior notes) of
the Issuers; and
initially guaranteed on a senior unsecured basis by each
Restricted Subsidiary that guarantees the obligations under the
Senior Credit Facilities.
95
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96
Table of Contents
97
Table of Contents
98
Table of Contents
99
Table of Contents
100
Table of Contents
Percentage
105.063
%
102.531
%
100.000
%
101
Table of Contents
Percentage
102.000
%
101.000
%
100.000
%
102
Table of Contents
103
Table of Contents
104
Table of Contents
105
Table of Contents
106
Table of Contents
107
Table of Contents
108
Table of Contents
109
Table of Contents
110
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111
Table of Contents
112
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113
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114
Table of Contents
115
Table of Contents
116
Table of Contents
117
Table of Contents
118
Table of Contents
119
Table of Contents
120
Table of Contents
121
Table of Contents
122
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123
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124
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125
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126
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127
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128
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129
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130
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the relevant court that rendered the judgment has jurisdiction
over the Company, as recognized by the courts of Singapore and
in compliance with Singapores conflict of laws rules and
submission by the Company in the Senior Note Indenture to
the jurisdiction of the New York court will be sufficient for
this purpose;
the judgment was not obtained by fraud or in a manner contrary
to natural justice and the enforcement thereof would not be
inconsistent with public policy, as that term is understood
under the applicable laws of Singapore;
the enforcement of the judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory,
public or penal laws; and
the action to enforce the judgment is commenced within the
applicable limitation period.
131
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132
Table of Contents
133
Table of Contents
134
Table of Contents
135
Table of Contents
136
Table of Contents
137
Table of Contents
138
Table of Contents
139
Table of Contents
140
Table of Contents
141
Table of Contents
142
Table of Contents
143
Table of Contents
144
Table of Contents
145
Table of Contents
146
Table of Contents
147
Table of Contents
148
Table of Contents
149
Table of Contents
150
Table of Contents
151
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152
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unsecured senior subordinated obligations of the Issuers;
subordinated in right of payment to all existing and future
Senior Indebtedness (including the Senior Credit Facilities and
the senior notes) of the Issuers;
pari passu
in right of payment with any future senior
subordinated Indebtedness of the Issuers;
effectively subordinated to all secured Indebtedness of the
Issuers; and
initially guaranteed on a senior subordinated unsecured basis by
each Restricted Subsidiary that guarantees the obligations under
the Senior Credit Facilities.
153
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154
Table of Contents
155
Table of Contents
156
Table of Contents
157
Table of Contents
158
Table of Contents
159
Table of Contents
Percentage
105.938
%
103.958
%
101.979
%
100.000
%
160
Table of Contents
161
Table of Contents
162
Table of Contents
163
Table of Contents
164
Table of Contents
165
Table of Contents
166
Table of Contents
167
Table of Contents
168
Table of Contents
169
Table of Contents
170
Table of Contents
171
Table of Contents
172
Table of Contents
173
Table of Contents
174
Table of Contents
175
Table of Contents
176
Table of Contents
177
Table of Contents
178
Table of Contents
179
Table of Contents
180
Table of Contents
181
Table of Contents
182
Table of Contents
183
Table of Contents
184
Table of Contents
185
Table of Contents
186
Table of Contents
187
Table of Contents
188
Table of Contents
189
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the relevant court that rendered the judgment has jurisdiction
over the Company, as recognized by the courts of Singapore and
in compliance with Singapores conflict of laws rules and
submission by the Company in the Senior Subordinated
Note Indenture to the jurisdiction of the New York court
will be sufficient for this purpose;
the judgment was not obtained by fraud or in a manner contrary
to natural justice and the enforcement thereof would not be
inconsistent with public policy, as that term is understood
under the applicable laws of Singapore;
the enforcement of the judgment does not constitute, directly or
indirectly, the enforcement of foreign revenue, expropriatory,
public or penal laws; and
the action to enforce the judgment is commenced within the
applicable limitation period.
190
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191
Table of Contents
192
Table of Contents
193
Table of Contents
194
Table of Contents
195
Table of Contents
196
Table of Contents
197
Table of Contents
198
Table of Contents
199
Table of Contents
200
Table of Contents
201
Table of Contents
202
Table of Contents
203
Table of Contents
204
Table of Contents
205
Table of Contents
206
Table of Contents
207
Table of Contents
208
Table of Contents
209
Table of Contents
210
Table of Contents
211
Table of Contents
212
Table of Contents
an individual that is a citizen or resident of the United
States, including an alien individual who is a lawful permanent
resident of the United States or meets the substantial
presence test under Section 7701(b) of the Code;
a corporation or other entity taxable as a corporation created
or organized in or under the laws of the United States or a
political subdivision thereof;
an estate, the income of which is subject to U.S. federal
income tax regardless of its source; or
a trust, if a U.S. court can exercise primary supervision
over the administration of the trust and one or more United
States persons can control all substantial trust decisions, or,
if the trust was an existence on August 20, 1996, a trust
that has elected to continue to be treated as a United States
person.
213
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214
Table of Contents
215
Table of Contents
216
Table of Contents
217
Table of Contents
218
Table of Contents
Page
F-2
F-4
F-5
F-6
F-7
F-8
F-9
F-1
Table of Contents
F-2
Table of Contents
June 5, 2006, except for the effects of discontinued
operations discussed in Note 17, as to which the date is
September 29, 2006
F-3
Table of Contents
Predecessor
Company
Nine Months
One Month
Nine Months
Year Ended
Ended
Ended
Ended
October 31,
July 31
November 30,
July 31,
2004
2005
2005
2005
2006
$
1,783
$
1,559
$
1,126
$
125
$
1,073
1,249
1,037
749
96
701
41
1,249
1,037
749
96
742
207
218
161
24
147
250
256
181
28
178
56
2
1,706
1,511
1,091
148
1,125
77
48
35
(23
)
(52
)
114
4
7
10
8
81
55
45
(23
)
(158
)
25
33
13
2
3
56
22
32
(25
)
(161
)
17
9
14
1
12
$
73
$
31
$
46
$
(24
)
$
(149
)
F-4
Table of Contents
F-5
Table of Contents
Predecessor
Company
Nine Months
One Month
Nine Months
Year Ended
Ended
Ended
Ended
October 31,
July 31
November 30,
July 31,
2004
2005
2005
2005
2006
$
73
$
31
$
46
$
(24
)
$
(149
)
74
63
46
6
159
21
2
17
11
10
5
1
7
9
6
1
(13
)
(13
)
1
1
1
8
4
2
(39
)
37
45
1
128
(61
)
28
22
(8
)
18
(4
)
(11
)
(29
)
(6
)
29
49
16
44
14
(2
)
7
11
(2
)
(30
)
(17
)
8
(23
)
5
6
2
20
72
211
124
(39
)
296
(34
)
(59
)
(32
)
(6
)
(47
)
(9
)
(9
)
(2,707
)
2
14
14
1
3
2
665
(32
)
(51
)
(25
)
(6
)
(2,088
)
1,666
(725
)
1,051
250
(249
)
(1
)
(40
)
(160
)
(99
)
45
(40
)
(160
)
(99
)
45
1,992
200
$
$
$
$
$
200
and financing activities:
Predecessor
Company
Nine Months
One Month
Nine Months
Year Ended
Ended
Ended
Ended
October 31,
July 31
November 30,
July 31,
2004
2005
2005
2005
2006
$
$
$
$
$
75
1
6
4
F-6
Table of Contents
Redeemable
Convertible Cumulative
Total
Preference Shares
Ordinary Shares
Accumulated
Shareholders
Shares
Amount
Shares
Amount
Deficit
Equity
$
$
$
$
1
250,000
250
250
209,840,061
1,049
1,049
(248,853
)
(249
)
1,500
(249
)
(1
)
(1
)
(1,147
)
(1
)
229,400
1
389,300
2
2
4
4
2
2
(149
)
(149
)
$
210,460,262
$
1,057
$
(149
)
$
908
F-7
Table of Contents
Accumulated Other
Agilents Net
Comprehensive
Investment
Income/(Loss)
Total
598
11
609
73
73
7
7
1
1
81
(40
)
(40
)
$
631
$
19
$
650
31
31
(9
)
(9
)
1
1
23
8
8
8
8
(160
)
(160
)
518
11
529
(24
)
(24
)
(2
)
(2
)
(26
)
4
4
45
45
$
543
$
9
$
552
F-8
Table of Contents
1.
Overview and
Basis of Presentation
F-9
Table of Contents
2.
Summary
of Significant Accounting Policies
F-10
Table of Contents
July 31, 2006
(In millions)
$
(149
)
1
(2
)
$
(150
)
Share Option Plans
Nine Months Ended
July 31, 2006
5.04
%
0.0
%
0.0
%
6.5
F-11
Table of Contents
F-12
Table of Contents
F-13
Table of Contents
3.
The
Acquisition
$
2,660
51
4
$
2,715
F-14
Table of Contents
$
4
323
214
452
72
193
421
843
323
24
43
2,912
(196
)
(1
)
$
2,715
F-15
Table of Contents
Nine Months Ended
Year Ended
July 31, 2006
October 31, 2005
(unaudited)
(In millions)
$
1,198
$
1,559
(202
)
(268
)
4.
Transactions
with Agilent
Predecessor
Year Ended
Nine Months
One Month
October 31,
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
(In millions)
$
82
$
80
$
58
$
8
71
80
58
8
146
146
106
15
(4
)
(1
)
$
295
$
306
$
221
$
31
F-16
Table of Contents
5.
Balance
Sheet Components
Predecessor
Company
October 31,
July 31,
2005
2006
$
51
$
38
48
122
79
18
$
178
$
178
Predecessor
Company
October 31,
July 31,
2005
2006
$
12
$
3
15
20
11
31
$
38
$
54
F-17
Table of Contents
Predecessor
Company
October 31,
July 31,
2005
2006
$
1
$
12
226
164
921
313
1,148
489
(885
)
(56
)
$
263
$
433
Predecessor
Company
October 31,
July 31,
2005
2006
$
1
$
6
5
2
1
2
2
11
3
8
$
12
$
29
F-18
Table of Contents
Predecessor
Company
Year Ended
Nine Months Ended
October 31, 2005
July 31, 2006
$
2
$
2
(27
)
(12
)
27
11
$
2
$
1
6.
Goodwill
$
98
(7
)
5
(1
)
95
$
95
$
348
(155
)
(77
)
$
116
F-19
Table of Contents
7.
Intangible
Assets
Gross Carrying
Accumulated
Amount
Amortization
Net Book Value
(In millions)
$
10
$
(8
)
$
2
1
1
$
11
$
(8
)
$
3
$
796
$
(41
)
$
755
266
(24
)
242
31
(31
)
2
(1
)
1
$
1,095
$
(97
)
$
998
Amount
(In millions)
$
25
98
91
82
82
80
540
$
998
Years
13.2
10.5
F-20
Table of Contents
8.
Retirement
Plans and Post-Retirement Benefits
F-21
Table of Contents
Predecessor
Non-U.S Defined Benefit Plans
Year Ended
October 31, 2005
(In millions)
$
9
1
$
10
F-22
Table of Contents
Predecessor
Non-U.S Defined Benefit Plans
Year Ended
October 31, 2005
(In millions)
$
10
1
1
0
0
0
$
12
$
(2
)
1
$
(1
)
$
0
(2
)
0
1
$
(1
)
Predecessor
October 31, 2005
(In millions)
$
9
12
10
Table of Contents
Predecessor
Year Ended
October 31, 2005
2.25-6.0%
0-5.0%
4.75-7.0%
5.75%
8.50%
10.00%
5.00%
2010
Predecessor
October 31, 2005
5.50%
3.25%
6.75%
9.
Senior
Credit Facilities and Borrowings
Company
July 31, 2006
$
$
500
250
250
$
1,000
F-24
Table of Contents
incur additional debt or issue certain preferred shares;
create liens on assets;
enter into sale-leaseback transactions;
engage in mergers or consolidations;
sell assets;
pay dividends and distributions, or repurchase our capital stock
or make other restrictive payments;
make investments, loans or advances;
make capital expenditures;
repay subordinated indebtedness (including the senior
subordinated notes);
F-25
Table of Contents
make certain acquisitions;
amend material agreements governing our subordinated
indebtedness (including the senior subordinated notes);
change our lines of business; and
change the status of Holdings as a passive holding company.
a pledge of 100% of our capital stock and 100% of the capital
stock of each of our material subsidiaries; and
a security interest in substantially all of our tangible and
intangible assets and the tangible and intangible assets of each
guarantor.
F-26
Table of Contents
F-27
Table of Contents
10.
Fair
Value of Financial Instruments
Company
July 31, 2006
Carrying
Fair
Value
Value
(In millions)
$
250
$
262
750
791
11.
Shareholders
Equity
F-28
Table of Contents
Options Outstanding
Options
Weighted-Average
Available for
Number
Exercise Price
Grant
Outstanding
Per Share
$
30
(see Note 3. The Acquisition)
(1
)
1
1.25
(17
)
17
5.00
1
(1
)
4.93
13
17
4.76
Options Outstanding
Weighted-
Weighted-
Options Exercisable
Average
Average
Weighted-
Remaining
Exercise
Average
Number
Contractual
Price Per
Number
Exercise Price
Outstanding
Life (in years)
Share
Exercisable
Per Share
1
6.44
$
1.25
1
$
1.25
16
9.44
5.00
17
9.25
4.76
1
1.25
12.
Restructuring
and Asset Impairment
F-29
Table of Contents
Predecessor
Year Ended
Nine Months
One Month
October 31,
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
(In millions)
$
23
$
14
$
6
$
1
7
3
2
6
3
3
$
36
$
20
$
11
$
1
F-30
Table of Contents
Predecessor
Workforce
Management
(In millions)
$
3
7
(9
)
1
1
(2
)
$
Predecessor
Year Ended
Nine Months
One Month
October 31,
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
(In millions)
$
10
$
4
$
3
$
7
7
5
19
9
3
1
$
36
$
20
$
11
$
1
Predecessor
Year Ended
Nine Months
One Month
October 31,
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
(In millions)
$
3
$
$
$
1
4
2
10
7
1
$
14
$
11
$
3
$
F-31
Table of Contents
13.
Income
Taxes
Predecessor
Company
Year Ended
Nine Months
One Month
Nine Months
October 31,
Ended
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
July 31, 2006
$
(330
)
$
(287
)
$
(228
)
$
(17
)
$
(155
)
411
342
273
(6
)
(3
)
$
81
$
55
$
45
$
(23
)
$
(158
)
F-32
Table of Contents
Predecessor
Company
Year Ended
Nine Months
One Month
Nine Months
October 31,
Ended
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
July 31, 2006
$
$
17
$
$
$
3
28
16
12
2
2
$
28
$
33
$
12
$
2
$
5
$
(3
)
$
$
$
$
1
(2
)
$
(3
)
$
$
1
$
$
(2
)
$
25
$
33
$
13
$
2
$
3
Predecessor
Company
Year Ended
Nine Months
One Month
Nine Months
October 31,
Ended
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
July 31, 2006
35.0%
35.0%
35.0%
(35.0)%
(20.0)%
0.0
30.7
0.0
0.0
0.0
(112.1)
(137.1)
(132.0)
14.9
1.1
1.5
1.1
1.0
0.3
0.0
(3.4)
(4.5)
(4.0)
(1.3)
0.0
0.0
0.0
0.0
0.0
20.6
(6.1)
(4.6)
(4.0)
(1.6)
0.0
115.6
139.0
132.0
30.2
0.0
30.5%
59.6%
28.0%
7.5%
1.7%
F-33
Table of Contents
Predecessor
Company
Year Ended
Nine Months
October 31,
Ended
2004
2005
July 31, 2006
$
1
$
$
11
11
2
327
423
13
4
3
4
$
342
$
438
$
19
(198
)
(293
)
(17
)
$
144
$
145
$
2
$
31
$
31
$
114
114
1
$
145
$
145
$
1
$
(1
)
$
$
1
Predecessor
Company
Year Ended
Nine Months
October 31,
Ended
2004
2005
July 31, 2006
$
144
$
145
$
2
(145
)
(145
)
(1
)
$
(1
)
$
$
1
F-34
Table of Contents
14.
Interest
Expense
15.
Other
Income, net
Predecessor
Company
Year Ended
Nine Months
One Month
Nine Months
October 31,
Ended
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
July 31, 2006
(In millions)
(In millions)
$
4
$
18
$
18
$
5
4
(11
)
(8
)
(1
)
$
4
$
7
$
10
$
8
16.
Sale of
the Camera Module Business
F-35
Table of Contents
Predecessor
Year Ended
Nine Months
October 31,
Ended
2004
2005
July 31, 2005
(In millions)
$
296
$
69
$
69
(316
)
(66
)
(66
)
(43
)
(10
)
(10
)
$
(63
)
$
(7
)
$
(7
)
17.
Discontinued
Operations
F-36
Table of Contents
Predecessor
Company
Nine Months
One Month
Nine Months
Year Ended October 31,
Ended
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
July 31, 2006
(In millions)
$
113
$
112
$
82
$
8
$
28
101
102
68
6
19
$
12
$
10
$
14
$
2
$
9
Company
(In millions)
$
5
8
4
404
421
1
$
420
Predecessor
Company
Nine Months
One Month
Nine Months
Year Ended October 31,
Ended
Ended
Ended
2004
2005
July 31, 2005
November 30, 2005
July 31, 2006
(In millions)
$
132
$
131
$
99
$
10
$
71
127
132
99
11
68
$
5
$
(1
)
$
$
(1
)
$
3
F-37
Table of Contents
Company
(In millions)
$
17
10
15
207
249
4
$
245
18.
Segment
Information
F-38
Table of Contents
Malaysia and
United
Rest of the
Discontinued
Singapore
States
World
Operations
Total
$
757
$
236
$
80
$
1,073
174
245
14
433
84
31
28
(18
)
125
699
315
293
(181
)
1,126
952
462
388
(243
)
1,559
1,093
459
476
(245
)
1,783
100
158
5
263
19.
Related-Party
Transactions
F-39
Table of Contents
20.
Commitments
and Contingencies
F-40
Table of Contents
21.
Predecessor
Change in Accounting Policies
F-41
Table of Contents
Predecessor
Year Ended
Nine
October 31,
Months Ended
2004
2005
July 31, 2005
(In millions)
$
73
$
31
$
46
8
(41
)
(44
)
(25
)
3
2
2
$
35
$
(3
)
$
23
(1)
The pro forma results for the years ended October 31, 2004
and 2005 include approximately $11 million and
$5 million, respectively, of compensation expense relating
to Agilents Option Exchange Program (see below). The
remainder of the expense for those periods related to options
granted over the past five years.
(2)
Due to the valuation allowance provided on Predecessors
net deferred tax assets as described in Note 13,
Income Taxes Predecessor has not recorded any tax
benefits attributable to pro forma stock option expenses for
employees in the U.S. and certain
non-U.S. jurisdictions
in all periods presented.
F-42
Table of Contents
Predecessor
Year Ended October 31,
Nine Months Ended
One Month Ended
2004
2005
July 31, 2005
November 30, 2005
2.75-3.95
%
3.55
%
3.5
%
4.3
%
1.04-1.31
%
2.42
%
2.4
%
4.3
%
0
%
0
%
0
%
0
%
53-64
%
39
%
39
%
29
%
36-61
%
37
%
37
%
30
%
5.5 years
4 years
4 years
4.25 years
6 months 1 yr.
6 months 2 yrs.
6 months 2 yrs.
6 months 1 yr.
(1)
During 2004, Predecessor used historical volatility to estimate
expected stock price volatility in the computation of
stock-based compensation under the fair value method. During
2005, for Predecessors employee stock options, Predecessor
used a
4-year
period, of equally weighted historical volatility and
market-based implied volatility for the computation of
stock-based compensation. For the year ended October 31,
2005, for the 423(b) Plan, Predecessor used a market-based
implied volatility of the same term as the expected life.
(2)
In 2005, Predecessor refined the assumption for expected option
life to 4 years, from Predecessors previous estimate
of 5.5 years. In determining the estimate, Predecessor
considered several factors, including the expected lives used by
a peer group of companies and the historical option exercise
behavior of Predecessors employees.
F-43
Table of Contents
Table of Contents
Item 20.
Indemnification
of Directors and Officers.
purchase and maintain for any officer insurance against any
liability which by law would otherwise attach to him in respect
of any negligence, default, breach of duty or breach of trust of
which he may be guilty in relation to the company; or
indemnify such officer or auditor against any liability incurred
by him:
in defending any proceedings (whether civil or criminal) in
which judgment is given in his favor or in which he is
acquitted; or
in connection with any application under specified portions of
the Singapore Companies Act.
II-1
Table of Contents
II-2
Table of Contents
II-3
Table of Contents
II-4
Table of Contents
Indemnify its directors in respect of proceedings brought by
third parties (covering both legal costs and the financial costs
of any adverse judgment, except for the legal costs of
unsuccessful defense of criminal proceedings, fines imposed in
criminal proceedings and penalties imposed by regulatory bodies
such as the Financial Services Authority). For example,
companies may, therefore, indemnify directors against third
party actions such as class actions or actions in relation to
mergers and acquisitions or share issues.
Pay directors defense costs as they are incurred, even if
the action is brought by the company itself. The director would
still be liable to pay any damages awarded to the company and to
repay his defense costs to the company if his defense were
unsuccessful (other than where the company chooses to indemnify
him in respect of legal costs incurred in civil third party
proceedings).
Item 21.
Exhibits
and Financial Statement Schedules.
2
.1
Asset Purchase Agreement, dated
August 14, 2005, between Agilent Technologies, Inc. and
Argos Acquisition Pte. Ltd. (incorporated herein by reference to
the Exhibits filed with Agilent Technologies, Inc. Current
Report on
Form 8-K
dated August 12, 2005 and filed August 15, 2005
(Commission File
No. 001-15405)).
3
.1
Memorandum and Articles of
Association of Avago Technologies (Malaysia) Sdn. Bhd. (formerly
Jumbo Portfolio Sdn. Bhd.)
3
.2
Certificate and Articles of
Incorporation of Avago Technologies Canada Corporation
3
.3
Bylaws of Avago Technologies
Canada Corporation
3
.4
Memorandum and Articles of
Association of Avago Technologies ECBU IP (Singapore) Pte. Ltd.
3
.5
Memorandum and Articles of
Association of Avago Technologies Enterprise Holding (Labuan)
Corporation
3
.6
Memorandum and Articles of
Association of Avago Technologies Enterprise IP (Singapore) Pte.
Ltd.
3
.7
Memorandum and Articles of
Association of Avago Technologies Fiber Holding (Labuan)
Corporation
3
.8
Memorandum and Articles of
Association of Avago Technologies Fiber IP (Singapore) Pte. Ltd.
3
.9
Memorandum and Articles of
Association of Avago Technologies Finance Pte. Ltd.
3
.10
Memorandum and Articles of
Association of Avago Technologies General IP (Singapore) Pte.
Ltd.
3
.11
Articles of Association of Avago
Technologies GmbH
3
.12
Translation of Commercial Register
record of Avago Technologies GmbH
3
.13
Translation of Deed of
Incorporation of Argos Netherlands B.V.
3
.14
Translation of Amendment to the
Articles of Incorporation of Avago Technologies Holdings B.V.
(formerly Argos Netherlands B.V.), dated August 30, 2006
3
.15
Memorandum and Articles of
Association of Avago Technologies Imaging Holding (Labuan)
Corporation
II-5
Table of Contents
3
.16
Memorandum and Articles of
Association of Avago Technologies International Sales Pte.
Limited (formerly Argos Sales (Singapore) Pte. Ltd.)
3
.17
Incorporation Deed and Bylaws of
Avago Technologies Italy S.r.l.
3
.18
Translation of Articles of
Incorporation of Avago Technologies Japan, Ltd.
3
.19
Translation of Corporate Registry
of Avago Technologies Japan, Ltd.
3
.20
Memorandum and Articles of
Association of Avago Technologies Manufacturing Pte. Ltd.
3
.21
Public Instrument Containing the
Incorporation of Argos Operating Mexico, Sociedad de
Responsabilidad Limitada de Capital Variable
3
.22
Public Instrument Containing
Change of the Corporate Name of Argos Operating
Mexico, Sociedad de Responsabilidad Limitada de Capital
Variable to Avago Technologies Mexico, Sociedad de
Responsabilidad Limitada de Capital Variable and Amendment to
the bylaws of Avago Technologies Mexico, Sociedad de
Responsabilidad Limitada de Capital Variable
3
.23
Certificate of Incorporation of
Avago Technologies Sensor (U.S.A.) Inc.
3
.24
Bylaws of Avago Technologies
Sensor (U.S.A.) Inc.
3
.25
Memorandum and Articles of
Association of Avago Technologies Sensor IP Pte. Ltd.
3
.26
Memorandum and Articles of
Association of Avago Technologies Storage Holding (Labuan)
Corporation
3
.27
Translation of Deed of
Incorporation of Argos Storage Netherlands B.V.
3
.28
Translation of Amendment to the
Articles of Incorporation of Avago Technologies Storage Holdings
B.V. (formerly Argos Storage Netherlands B.V.), dated
October 13, 2005
3
.29
Certificate and Memorandum and
Articles of Association Avago Technologies UK Limited
3
.30
Certificate of Incorporation of
Argos Sales Company (Delaware) Inc.
3
.31
Certificate of Amendment of
Argos Sales Company (Delaware) Inc. changing its
name from Argos Sales Company (Delaware) Inc. to
Avago Technologies U.S. Inc.
3
.32
Bylaws of Avago Technologies
U.S. Inc. (formerly Argos Sales Company (Delaware), Inc.)
3
.33
Certificate of Incorporation of
Argos Operating Company (Delaware) Inc.
3
.34
Certificate of Amendment of
Argos Operating Company (Delaware) Inc. changing its
name from Argos Operating Company (Delaware) Inc. to
Avago Technologies U.S. R&D Inc.
3
.35
Bylaws of Avago Technologies
U.S. R&D Inc. (formerly Argos Operating Company
(Delaware) Inc.)
3
.36
Certificate of Incorporation of
Avago Technologies Wireless (U.S.A.) Inc.
3
.37
Bylaws of Avago Technologies
Wireless (U.S.A.) Inc.
3
.38
Certificate of Incorporation of
Avago Technologies Wireless (U.S.A.) Manufacturing Inc.
3
.39
Bylaws of Avago Technologies
Wireless (U.S.A.) Manufacturing Inc.
3
.40
Memorandum and Articles of
Association of Avago Technologies Wireless Holding (Labuan)
Corporation
3
.41
Translation of Deed of
Incorporation of Argos Wireless Netherlands B.V.
3
.42
Translation of Amendment to the
Articles of Incorporation of Avago Technologies Wireless
Holdings B.V. (formerly Argos Wireless Netherlands B.V.), dated
August 30, 2006
3
.43
Memorandum and Articles of
Association of Avago Technologies Wireless IP (Singapore) Pte.
Ltd.
4
.1
Indenture, dated December 1,
2005, among Avago Technologies Finance Pte. Ltd., Avago
Technologies U.S. Inc., Avago Technologies Wireless
(U.S.A.) Manufacturing Inc., Guarantors named therein and The
Bank of New York, as Trustee, governing the
10
1
/
8
% Senior
Notes and Senior Floating Rate Notes.
4
.2
Supplemental Indenture No. 1,
dated April 11, 2006, among Avago Technologies Sensor IP
Pte. Ltd., Avago Technologies Sensor (U.S.A.) Inc. and The Bank
of New York, as Trustee, relating to the
10
1
/
8
% Senior
Notes and Senior Floating Rate Notes.
4
.3
Indenture, dated December 1,
2005, among Avago Technologies Finance Pte. Ltd., Avago
Technologies U.S. Inc., Avago Technologies Wireless
(U.S.A.) Manufacturing Inc., Guarantors named therein and The
Bank of New York, as Trustee, governing the
11
7
/
8
% Senior
Subordinated Notes.
Table of Contents
4
.4
Supplemental Indenture No. 1,
dated April 11, 2006, among Avago Technologies Sensor IP
Pte. Ltd., Avago Technologies Sensor (U.S.A.) Inc. and The Bank
of New York, as Trustee, relating to the
11
7
/
8
% Senior
Subordinated Notes.
4
.5
Registration Rights Agreement,
dated December 1, 2005, among Avago Technologies Finance
Pte. Ltd., Avago Technologies U.S. Inc., Avago Technologies
Wireless (U.S.A.) Manufacturing Inc., Guarantors named therein
and Lehman Brothers Inc., Citigroup Global Markets Singapore
Pte. Ltd., and Credit Suisse First Boston (Singapore) Limited,
as Initial Holders, relating to the
10
1
/
8
% Senior
Notes, the Senior Floating Rate Notes and the
11
7
/
8
% Senior
Subordinated Notes.
5
.1*
Opinion of WongPartnership,
Singapore
5
.2*
Opinion of Latham &
Watkins LLP, Menlo Park, California
5
.3*
Opinion of Zaid Ibrahim &
Co., Kuala Lumpur, Malaysia
5
.4*
Opinion of Loyens &
Loeff, Amsterdam, the Netherlands
5
.5*
Opinion of Stikeman Elliot LLP,
Toronto, Canada
5
.6*
Opinion of Latham &
Watkins LLP, Hamburg, Germany
5
.7*
Opinion of Pavia E Ansaldo, Milan,
Italy
5
.8*
Opinion of Latham &
Watkins LLP, Tokyo, Japan
5
.9*
Opinion of Kuri Breña,
Sánchez Ugarte, Corcuera y Aznar, S.C., Mexico City, Mexico
5
.10*
Opinion of Latham &
Watkins, London, United Kingdom
10
.1
Sublease Agreement, dated
December 1, 2005, between Agilent Technologies Singapore
Pte. Ltd. and Avago Technologies Manufacturing (Singapore) Pte.
Ltd., relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.2
Lease No.I/33183P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 1935X of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49501Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.3
Lease No.I/31607P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 1937C of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49499Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.4
Lease No.I/33182P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 2134N of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49500Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.5
Lease No.I/33160P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 1975P of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49502Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.6
Tenancy Agreement, dated
October 24, 2005, between Agilent Technologies (Malaysia)
Sdn. Bhd. and Avago Technologies (Malaysia) Sdn. Bhd. (f/k/a
Jumbo Portfolio Sdn. Bhd.), relating to Avagos facility at
Bayan Lepas Free Industrial Zone, 11900 Penang, Malaysia.
10
.7
Supplemental Agreement to Tenancy
Agreement, dated December 1, 2005, between Agilent
Technologies (Malaysia) Sdn. Bhd. and Avago Technologies
(Malaysia) Sdn. Bhd. (f/k/a Jumbo Portfolio Sdn. Bhd.), relating
to Avagos facility at Bayan Lepas Free Industrial Zone,
11900 Penang, Malaysia.
10
.8
Subdivision and Use Agreement,
dated December 1, 2005, between Agilent Technologies
(Malaysia) Sdn. Bhd. and Avago Technologies (Malaysia) Sdn. Bhd.
(f/k/a Jumbo Portfolio Sdn. Bhd.), relating to Avagos
facility at Bayan Lepas Free Industrial Zone, 11900 Penang,
Malaysia.
10
.9
Sale and Purchase Agreement, dated
December 1, 2005, between Agilent Technologies (Malaysia)
Sdn. Bhd. and Avago Technologies (Malaysia) Sdn. Bhd. (f/k/a
Jumbo Portfolio Sdn. Bhd.), relating to Avagos facility at
Bayan Lepas Free Industrial Zone, 11900 Penang, Malaysia.
10
.10
Lease Agreement, dated
December 1, 2005, between Agilent Technologies, Inc. and
Avago Technologies U.S. Inc., relating to Avagos
facility at 350 West Trimble Road, San Jose,
California 95131.
Table of Contents
10
.11
Credit Agreement, dated
December 1, 2005, among Avago Technologies Finance Pte.
Ltd., Avago Technologies Finance S.àr.l., Avago
Technologies (Malaysia) Sdn. Bhd. (f/k/a Jumbo Portfolio Sdn.
Bhd.), Avago Technologies Wireless (U.S.A.) Manufacturing Inc.
and Avago Technologies U.S. Inc., as borrowers, Avago
Technologies Holding Pte. Ltd., each lender from time to time
parties thereto, Citicorp International Limited (Hong Kong), as
Asian Administrative Agent, Citicorp North America, Inc., as
Tranche B-1
Term Loan Administrative Agent and as Collateral Agent,
Citigroup Global Markets Inc., as Joint Lead Arranger and Joint
Lead Bookrunner, Lehman Brothers Inc., as Joint Lead Arranger,
Joint Lead Bookrunner and Syndication Agent, and Credit Suisse,
as Documentation Agent (Credit Agreement).
10
.12
Amendment No. 1 to Credit
Agreement, dated December 23, 2005.
10
.13
Amendment No. 2, Consent and
Waiver under Credit Agreement, date April 16, 2006.
10
.14
Guarantee, dated December 1,
2005, among the subsidiaries signatory thereto in favor of
Citicorp North America, Inc., as Collateral Agent
(Guarantee).
10
.15
Supplement No. 1 to
Guarantee, dated May 1, 2006, among Avago Technologies
Sensor IP Pte. Ltd., Avago Technologies Sensor (U.S.A.) Inc. and
Citicorp North America, Inc., as Collateral Agent.
10
.16
Security Agreement, dated
December 1, 2005, among Avago Technologies Wireless
(U.S.A.) Manufacturing Inc., Avago Technologies U.S. Inc.,
each of the subsidiaries signatory thereto and Citicorp North
America, Inc., as Collateral Agent (Security
Agreement).
10
.17
Supplement No. 1 to Security
Agreement, dated May 1, 2006, among Avago Technologies
Wireless (U.S.A.) Manufacturing Inc., Avago Technologies
U.S. Inc., Avago Technologies Sensor (U.S.A.) Inc. and
Citicorp North America, Inc., as Collateral Agent.
10
.18
Equity Incentive Plan for
Executive Employees of Avago Technologies Limited and
Subsidiaries (Amended and Restated Effective as of
April 14, 2006).
10
.19
Equity Incentive Plan for Senior
Management Employees of Avago Technologies Limited and
Subsidiaries (Amended and Restated Effective as of
April 14, 2006).
10
.20
Form of Management Shareholders
Agreement
10
.21
Form of Nonqualified Share Option
Agreement Under the Amended and Restated Equity Incentive Plan
for Executive Employees of Avago Technologies Limited and
Subsidiaries for U.S. employees
10
.22
Form of Nonqualified Share Option
Agreement Under the Equity Incentive Plan for Executive
Employees of Avago Technologies Limited and Subsidiaries for
employees in Singapore
10
.23
Form of Nonqualified Share Option
Agreement Under the Equity Incentive Plan for Executive
Employees of Avago Technologies Limited and Subsidiaries for
U.S. employees granted rollover options
10
.24
Form of Nonqualified Share Option
Agreement Under the Amended and Restated Equity Incentive Plan
for Senior Management Employees of Avago Technologies Limited
and Subsidiaries for U.S. non-employee directors
10
.25
Form of Nonqualified Share Option
Agreement Under the Amended and Restated Equity Incentive Plan
for Senior Management Employees of Avago Technologies Limited
and Subsidiaries for non-employee directors in Singapore
10
.26
Offer Letter Agreement, dated
March 28, 2006, between Avago Technologies Limited and Hock
E. Tan.
10
.27
Severance Benefits Agreement,
dated June 14, 2004, between Avago Technologies Limited and
Mercedes Johnson.
10
.28
Form of Indemnity Agreement
between Avago with its directors and certain officers
10
.29
Amended and Restated
Shareholders Agreement, dated February 3, 2006, Avago
Technologies Limited, Silver Lake Partners II Cayman, L.P.,
Silver Lake Technology Investors II Cayman, L.P., Integral
Capital Partners VII, L.P., KKR Millennium Fund (Overseas),
Limited Partnership, KKR European Fund, Limited Partnership, KKR
European Fund II, Limited Partnership, KKR Partners
(International), Limited Partnership, Capstone Equity Investors
LLC, Avago Investment Partners, Limited Partnership, Bali
Investments S.àr.l., Seletar Investments Pte. Ltd., Geyser
Investment Pte Ltd and certain other Persons.
Table of Contents
10
.30
Registration Rights Agreement,
dated December 1, 2005, among Avago Technologies Limited,
Silver Lake Partners II Cayman, L.P., Silver Lake
Technology Investors II Cayman, L.P., Integral Capital
Partners VII, L.P., KKR Millennium Fund (Overseas), Limited
Partnership, KKR European Fund, Limited Partnership, KKR
European Fund II, Limited Partnership, KKR Partners
(International), Limited Partnership, Capstone Equity Investors
LLC, Avago Investment Partners, Limited Partnership, Bali
Investments S.àr.l., Seletar Investments Pte. Ltd., Geyser
Investment Pte Ltd and certain other Persons.
10
.31
Advisory Agreement, dated
December 1, 2005, among Avago Technologies Limited, Avago
Technologies International Sales Pte. Limited, Kohlberg Kravis
Roberts & Co., L.P. and Silver Lake Management Company,
LLC.
10
.32
Purchase and Sale Agreement, dated
October 28, 2005, among Avago Technologies Pte. Limited,
Avago Technologies Storage Holding (Labuan) Corporation, other
sellers, PMC-Sierra, Inc. and Palau Acquisition Corporation
(PMC Purchase and Sale Agreement) (incorporated
herein by reference to the Exhibits filed with PMC-Sierra, Inc.
Current Report on
Form 8-K
dated October 28, 2005 and filed November 3, 2005
(Commission File
No. 001-19084)).
10
.33
Amendment to PMC Purchase and Sale
Agreement, dated March 1, 2006.
10
.34
Purchase and Sale Agreement, dated
February 17, 2006, among Avago Technologies Limited, Avago
Technologies Imaging Holding (Labuan) Corporation, other
sellers, Marvell Technology Group Ltd. and Marvell International
Technology Ltd. (Marvell Purchase and Sale
Agreement) (incorporated herein by reference to the
Exhibits filed with Marvell Technology Group Ltd. Annual Report
on
Form 10-K
for the fiscal year ended December 31, 2005 filed on
April 13, 2006 (Commission File
No. 000-30877)).
10
.35
Amendment No. 1 to Marvell
Purchase and Sale Agreement, dated April 11, 2006
(incorporated herein by reference to the Exhibits filed with
Marvell Technology Group Ltd. Annual Report on
Form 10-K
for the fiscal year ended December 31, 2005 filed on
April 13, 2006 (Commission File
No. 000-30877)).
12
.1
Computation of Ratio of Earnings
to Fixed Charges
21
.1
List of Subsidiaries
23
.1*
Consent of WongPartnership,
Singapore (included as part of its opinion filed as
Exhibit 5.1 hereto).
23
.2*
Consent of Latham &
Watkins LLP, Menlo Park, California (included as part of its
opinion filed as Exhibit 5.2 hereto)
23
.3*
Consent of Zaid Ibrahim &
Co., Kuala Lumpur, Malaysia (included as part of its opinion
filed as Exhibit 5.3 hereto)
23
.4*
Consent of Loyens &
Loeff, Amsterdam, the Netherlands (included as part of its
opinion filed as Exhibit 5.4 hereto)
23
.5*
Consent of Stikeman Elliot LLP,
Toronto, Canada (included as part of its opinion filed as
Exhibit 5.5 hereto)
23
.6*
Consent of Latham &
Watkins LLP, Hamburg, Germany (included as part of its opinion
filed as Exhibit 5.6 hereto)
23
.7*
Consent of Pavia E Ansaldo, Milan,
Italy (included as part of its opinion filed as Exhibit 5.7
hereto)
23
.8*
Consent of Latham &
Watkins LLP, Tokyo, Japan (included as part of its opinion filed
as Exhibit 5.8 hereto)
23
.9*
Consent of Kuri Breña,
Sánchez Ugarte, Corcuera y Aznar, S.C., Mexico City, Mexico
(included as part of its opinion filed as Exhibit 5.9
hereto)
23
.10*
Consent of Latham &
Watkins, London, United Kingdom (included as part of its opinion
filed as Exhibit 5.10 hereto)
23
.11
Consent of PricewaterhouseCoopers
LLP
23
.12
Consent of PricewaterhouseCoopers
LLP
24
Powers of Attorney (included in
signature pages of initial filing)
25
.1
Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939
of The Bank of New York with respect to the Indenture governing
the
10
1
/
8
% Senior
Notes and Senior Floating Rate Notes.
25
.2
Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939
of The Bank of New York with respect to the Indenture governing
the
11
7
/
8
% Senior
Subordinated Notes.
99
.1
Form of Letter of Transmittal
Table of Contents
99
.2
Form of Letter to Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees
99
.3
Form of Letter to Clients
99
.4
Form of Notice of Guaranteed
Delivery
*
To be filed by amendment.
Previously filed.
Item 22.
Undertakings.
(1)
to file, during any period in which offers or sales are being
made, a post-effective amendment to this registration statement:
(i)
to include any prospectus required by Section 10(a)(3) of
the Securities Act;
(ii)
to reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most
recent post-effective amend) which, individually or in the
aggregate, represent a fundamental change in the information set
forth in the registration statement. Notwithstanding the
foregoing, any increase or decrease in volume of securities
offered (if the total dollar value of securities offered would
not exceed that which was registered) and any deviation from the
low or high end of the estimated maximum offering range may be
reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes
in volume and price represent no more that a 20 percent
change in the maximum aggregate offering price set forth in the
Calculation of Registration Fee table in the
effective registration statement; and
(iii)
to include any material information with respect to the plan of
distribution not previously disclosed in the registration
statement or any material change to such information in the
registration statement;
(2)
that, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide
offering thereof; and
(3)
to remove from registration by means of a post-effective
amendment any of the securities being registered which remain
unsold at the termination of the offering.
(4)
That, for the purpose of determining liability of the registrant
under the Securities Act to any purchaser in the initial
distribution of the securities:
(i)
Any preliminary prospectus or prospectus of the undersigned
registrant relating to the offering required to be filed
pursuant to Rule 424;
(ii)
Any free writing prospectus relating to the offering prepared by
or on behalf of the undersigned registrant or used or referred
to by the undersigned registrant;
Table of Contents
(iii)
The portion of any other free writing prospectus relating to the
offering containing material information about the undersigned
registrant or its securities provided by or on behalf of the
undersigned registrant; and
(iv)
Any other communication that is an offer in the offering made by
the undersigned registrant to the purchaser.
II-11
Table of Contents
By:
Title:
President and Chief Executive Officer
II-12
Table of Contents
Director
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
*By:
Attorney-in-Fact
Table of Contents
By:
Title:
President and Chief Executive Officer
President and Chief Executive
Officer (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Senior Vice President, General
Counsel
and Director
November 15, 2006
II-14
Table of Contents
By:
Title:
President and Secretary
President and Secretary and
Director (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
II-15
Table of Contents
By:
Title:
Secretary
President and Director
(Principal
Executive Officer)
November 15, 2006
Senior Vice President, Finance
and Chief Financial Officer and Director (Principal Financial
Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-16
Table of Contents
(SINGAPORE) PTE. LTD.
By:
Title:
Secretary
President and Director
(Principal
Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-17
Table of Contents
(SINGAPORE) PTE. LTD.
By:
Title:
Secretary
President and Director
(Principal
Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-18
Table of Contents
(SINGAPORE) PTE. LTD.
By:
Title:
Secretary
President and Director
(Principal
Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-19
Table of Contents
By:
Title:
Secretary
President and Director
(Principal
Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-20
Table of Contents
(SINGAPORE) PTE. LTD.
By:
Title:
Secretary
President and Director
(Principal
Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-21
Table of Contents
By:
Title:
Secretary
President and Director
(Principal
Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-22
Table of Contents
(SINGAPORE) PTE. LTD.
By:
Title:
Secretary
President and Director
(Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-23
Table of Contents
By:
Title:
President and Secretary
President and Secretary and
Director (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
II-24
Table of Contents
By:
Title:
President and Secretary
President and Secretary and
Director
(Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
II-25
Table of Contents
By:
Title:
President and Secretary
President and Secretary and
Director
(Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
II-26
Table of Contents
By:
Title:
President
President and Director
(Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director (Principal Financial
Officer)
November 15, 2006
Vice President and Controller and
Director
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Director
November 15, 2006
Senior Vice President, General
Counsel
and Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-27
Table of Contents
By:
Title:
President and Secretary
President and Secretary and
Director
(Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-28
Table of Contents
(LABUAN) CORPORATION
By:
Title:
President and Secretary
President and Secretary and
Director
(Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance
and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-29
Table of Contents
(LABUAN) CORPORATION
By:
President and Secretary and
Director (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Authorized Representative in
the
United States
November 15, 2006
II-30
Table of Contents
(LABUAN) CORPORATION
By:
Director (Principal Executive
Officer)
November 15, 2006
Director (Principal Financial
Officer, Principal Accounting Officer)
November 15, 2006
Authorized Representative in
the
United States
November 15, 2006
*By:
Attorney-in-Fact
II-31
Table of Contents
(LABUAN) CORPORATION
By:
President and Secretary and
Director (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Authorized Representative in
the
United States
November 15, 2006
II-32
Table of Contents
By:
Title:
Managing Director
Managing Director (Principal
Executive Officer)
November 15, 2006
Managing Director (Principal
Financial Officer, Principal Accounting Officer)
November 15, 2006
Managing Director
November 15, 2006
Managing Director
November 15, 2006
Managing Director
November 15, 2006
Managing Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
*By:
Attorney-in-Fact
II-33
Table of Contents
By:
Managing Director (Principal
Executive Officer)
November 15, 2006
Managing Director (Principal
Financial Officer)
November 15, 2006
Managing Director (Principal
Accounting Officer)
November 15, 2006
Authorized Representative in
the
United States
November 15, 2006
*By:
Attorney-in-Fact
II-34
Table of Contents
HOLDINGS B.V.
By:
Title:
Managing Director
Managing Director (Principal
Executive
Officer)
November 15, 2006
Managing Director (Principal
Financial
Officer, Principal Accounting Officer)
November 15, 2006
Managing Director
November 15, 2006
Managing Director
November 15, 2006
Managing Director
November 15, 2006
Managing Director
November 15, 2006
Authorized Representative
in the
United States
November 15, 2006
*By:
Attorney-in-Fact
II-35
Table of Contents
By:
Title:
Director
President and Secretary and
Director (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director (Principal Financial
Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-36
Table of Contents
By:
Title: Managing Director
Managing Director (Principal
Executive Officer)
November 15, 2006
Managing Director (Principal
Financial Officer, Principal Accounting Officer)
November 15, 2006
Managing Director
November 15, 2006
Managing Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-37
Table of Contents
By:
Title: Managing Director,
Chairman of the Board
Managing Director and
Chairman of the Board (Principal Executive Officer)
November 15, 2006
Managing Director (Principal
Financial Officer, Principal Accounting Officer)
November 15, 2006
Managing Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-38
Table of Contents
By:
Title:
President and Representative Director
President and Representative
Director (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Director (Principal Financial
Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Senior Vice President, General
Counsel, and Director
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-39
Table of Contents
By:
Title:
President and Secretary
President and Secretary and Member
of Board of Managers (Principal Executive Officer)
November 15, 2006
Senior Vice President, Finance and
Chief Financial Officer and Member of Board of Managers
(Principal Financial Officer)
November 15, 2006
Vice President and Controller
(Principal Accounting Officer)
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-40
Table of Contents
By:
Title:
Director
Director (Principal Executive
Officer)
November 15, 2006
Director (Principal Financial
Officer, Principal Accounting Officer)
November 15, 2006
Authorized Representative in the
United States
November 15, 2006
II-41
Table of Contents
2
.1
Asset Purchase Agreement, dated
August 14, 2005, between Agilent Technologies, Inc. and
Argos Acquisition Pte. Ltd. (incorporated herein by reference to
the Exhibits filed with Agilent Technologies, Inc. Current
Report on
Form 8-K
dated August 12, 2005 and filed August 15, 2005
(Commission File
No. 001-15405)).
3
.1
Memorandum and Articles of
Association of Avago Technologies (Malaysia) Sdn. Bhd. (formerly
Jumbo Portfolio Sdn. Bhd.)
3
.2
Certificate and Articles of
Incorporation of Avago Technologies Canada Corporation
3
.3
Bylaws of Avago Technologies
Canada Corporation
3
.4
Memorandum and Articles of
Association of Avago Technologies ECBU IP (Singapore) Pte. Ltd.
3
.5
Memorandum and Articles of
Association of Avago Technologies Enterprise Holding (Labuan)
Corporation
3
.6
Memorandum and Articles of
Association of Avago Technologies Enterprise IP (Singapore) Pte.
Ltd.
3
.7
Memorandum and Articles of
Association of Avago Technologies Fiber Holding (Labuan)
Corporation
3
.8
Memorandum and Articles of
Association of Avago Technologies Fiber IP (Singapore) Pte. Ltd.
3
.9
Memorandum and Articles of
Association of Avago Technologies Finance Pte. Ltd.
3
.10
Memorandum and Articles of
Association of Avago Technologies General IP (Singapore) Pte.
Ltd.
3
.11
Articles of Association of Avago
Technologies GmbH
3
.12
Translation of Commercial Register
record of Avago Technologies GmbH
3
.13
Translation of Deed of
Incorporation of Argos Netherlands B.V.
3
.14
Translation of Amendment to the
Articles of Incorporation of Avago Technologies Holdings B.V.
(formerly Argos Netherlands B.V.), dated August 30, 2006
3
.15
Memorandum and Articles of
Association of Avago Technologies Imaging Holding (Labuan)
Corporation
3
.16
Memorandum and Articles of
Association of Avago Technologies International Sales Pte.
Limited (formerly Argos Sales (Singapore) Pte. Ltd.)
3
.17
Incorporation Deed and Bylaws of
Avago Technologies Italy S.r.l.
3
.18
Translation of Articles of
Incorporation of Avago Technologies Japan, Ltd.
3
.19
Translation of Corporate Registry
of Avago Technologies Japan, Ltd.
3
.20
Memorandum and Articles of
Association of Avago Technologies Manufacturing Pte. Ltd.
3
.21
Public Instrument Containing the
Incorporation of Argos Operating Mexico, Sociedad de
Responsabilidad Limitada de Capital Variable
3
.22
Public Instrument Containing
Change of the Corporate Name of Argos Operating
Mexico, Sociedad de Responsabilidad Limitada de Capital
Variable to Avago Technologies Mexico, Sociedad de
Responsabilidad Limitada de Capital Variable and Amendment to
the bylaws of Avago Technologies Mexico, Sociedad de
Responsabilidad Limitada de Capital Variable
3
.23
Certificate of Incorporation of
Avago Technologies Sensor (U.S.A.) Inc.
3
.24
Bylaws of Avago Technologies
Sensor (U.S.A.) Inc.
3
.25
Memorandum and Articles of
Association of Avago Technologies Sensor IP Pte. Ltd.
3
.26
Memorandum and Articles of
Association of Avago Technologies Storage Holding (Labuan)
Corporation
3
.27
Translation of Deed of
Incorporation of Argos Storage Netherlands B.V.
3
.28
Translation of Amendment to the
Articles of Incorporation of Avago Technologies Storage Holdings
B.V. (formerly Argos Storage Netherlands B.V.), dated
October 13, 2005
3
.29
Certificate and Memorandum and
Articles of Association Avago Technologies UK Limited
3
.30
Certificate of Incorporation of
Argos Sales Company (Delaware) Inc.
3
.31
Certificate of Amendment of
Argos Sales Company (Delaware) Inc. changing its
name from Argos Sales Company (Delaware) Inc. to
Avago Technologies U.S. Inc.
3
.32
Bylaws of Avago Technologies
U.S. Inc. (formerly Argos Sales Company (Delaware), Inc.)
3
.33
Certificate of Incorporation of
Argos Operating Company (Delaware) Inc.
II-42
Table of Contents
3
.34
Certificate of Amendment of
Argos Operating Company (Delaware) Inc. changing its
name from Argos Operating Company (Delaware) Inc. to
Avago Technologies U.S. R&D Inc.
3
.35
Bylaws of Avago Technologies
U.S. R&D Inc. (formerly Argos Operating Company
(Delaware) Inc.)
3
.36
Certificate of Incorporation of
Avago Technologies Wireless (U.S.A.) Inc.
3
.37
Bylaws of Avago Technologies
Wireless (U.S.A.) Inc.
3
.38
Certificate of Incorporation of
Avago Technologies Wireless (U.S.A.) Manufacturing Inc.
3
.39
Bylaws of Avago Technologies
Wireless (U.S.A.) Manufacturing Inc.
3
.40
Memorandum and Articles of
Association of Avago Technologies Wireless Holding (Labuan)
Corporation
3
.41
Translation of Deed of
Incorporation of Argos Wireless Netherlands B.V.
3
.42
Translation of Amendment to the
Articles of Incorporation of Avago Technologies Wireless
Holdings B.V. (formerly Argos Wireless Netherlands B.V.), dated
August 30, 2006
3
.43
Memorandum and Articles of
Association of Avago Technologies Wireless IP (Singapore) Pte.
Ltd.
4
.1
Indenture, dated December 1,
2005, among Avago Technologies Finance Pte. Ltd., Avago
Technologies U.S. Inc., Avago Technologies Wireless
(U.S.A.) Manufacturing Inc., Guarantors named therein and The
Bank of New York, as Trustee, governing the
10
1
/
8
% Senior
Notes and Senior Floating Rate Notes.
4
.2
Supplemental Indenture No. 1,
dated April 11, 2006, among Avago Technologies Sensor IP
Pte. Ltd., Avago Technologies Sensor (U.S.A.) Inc. and The Bank
of New York, as Trustee, relating to the
10
1
/
8
% Senior
Notes and Senior Floating Rate Notes.
4
.3
Indenture, dated December 1,
2005, among Avago Technologies Finance Pte. Ltd., Avago
Technologies U.S. Inc., Avago Technologies Wireless
(U.S.A.) Manufacturing Inc., Guarantors named therein and The
Bank of New York, as Trustee, governing the
11
7
/
8
% Senior
Subordinated Notes.
4
.4
Supplemental Indenture No. 1,
dated April 11, 2006, among Avago Technologies Sensor IP
Pte. Ltd., Avago Technologies Sensor (U.S.A.) Inc. and The Bank
of New York, as Trustee, relating to the
11
7
/
8
% Senior
Subordinated Notes.
4
.5
Registration Rights Agreement,
dated December 1, 2005, among Avago Technologies Finance
Pte. Ltd., Avago Technologies U.S. Inc., Avago Technologies
Wireless (U.S.A.) Manufacturing Inc., Guarantors named therein
and Lehman Brothers Inc., Citigroup Global Markets Singapore
Pte. Ltd., and Credit Suisse First Boston (Singapore) Limited,
as Initial Holders, relating to the
10
1
/
8
% Senior
Notes, the Senior Floating Rate Notes and the
11
7
/
8
% Senior
Subordinated Notes.
5
.1*
Opinion of WongPartnership,
Singapore
5
.2*
Opinion of Latham &
Watkins LLP, Menlo Park, California
5
.3*
Opinion of Zaid Ibrahim &
Co., Kuala Lumpur, Malaysia
5
.4*
Opinion of Loyens &
Loeff, Amsterdam, the Netherlands
5
.5*
Opinion of Stikeman Elliot LLP,
Toronto, Canada
5
.6*
Opinion of Latham &
Watkins LLP, Hamburg, Germany
5
.7*
Opinion of Pavia E Ansaldo, Milan,
Italy
5
.8*
Opinion of Latham &
Watkins LLP, Tokyo, Japan
5
.9*
Opinion of Kuri Breña,
Sánchez Ugarte, Corcuera y Aznar, S.C., Mexico City, Mexico
5
.10*
Opinion of Latham &
Watkins, London, United Kingdom
10
.1
Sublease Agreement, dated
December 1, 2005, between Agilent Technologies Singapore
Pte. Ltd. and Avago Technologies Manufacturing (Singapore) Pte.
Ltd., relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.2
Lease No.I/33183P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 1935X of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49501Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
II-43
Table of Contents
10
.3
Lease No.I/31607P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 1937C of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49499Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.4
Lease No.I/33182P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 2134N of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49500Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.5
Lease No.I/33160P issued by
Singapore Housing and Development Board to Compaq Asia Pte Ltd
in respect of the land and structures comprised in Lot 1975P of
Mukim 19, dated September 26, 2000, and includes the
Variation of Lease I/49502Q registered January 15, 2002,
relating to Avagos facility at 1 Yishun
Avenue 7, Singapore 768923.
10
.6
Tenancy Agreement, dated
October 24, 2005, between Agilent Technologies (Malaysia)
Sdn. Bhd. and Avago Technologies (Malaysia) Sdn. Bhd. (f/k/a
Jumbo Portfolio Sdn. Bhd.), relating to Avagos facility at
Bayan Lepas Free Industrial Zone, 11900 Penang, Malaysia.
10
.7
Supplemental Agreement to Tenancy
Agreement, dated December 1, 2005, between Agilent
Technologies (Malaysia) Sdn. Bhd. and Avago Technologies
(Malaysia) Sdn. Bhd. (f/k/a Jumbo Portfolio Sdn. Bhd.), relating
to Avagos facility at Bayan Lepas Free Industrial Zone,
11900 Penang, Malaysia.
10
.8
Subdivision and Use Agreement,
dated December 1, 2005, between Agilent Technologies
(Malaysia) Sdn. Bhd. and Avago Technologies (Malaysia) Sdn. Bhd.
(f/k/a Jumbo Portfolio Sdn. Bhd.), relating to Avagos
facility at Bayan Lepas Free Industrial Zone, 11900 Penang,
Malaysia.
10
.9
Sale and Purchase Agreement, dated
December 1, 2005, between Agilent Technologies (Malaysia)
Sdn. Bhd. and Avago Technologies (Malaysia) Sdn. Bhd. (f/k/a
Jumbo Portfolio Sdn. Bhd.), relating to Avagos facility at
Bayan Lepas Free Industrial Zone, 11900 Penang, Malaysia.
10
.10
Lease Agreement, dated
December 1, 2005, between Agilent Technologies, Inc. and
Avago Technologies U.S. Inc., relating to Avagos
facility at 350 West Trimble Road, San Jose,
California 95131.
10
.11
Credit Agreement, dated
December 1, 2005, among Avago Technologies Finance Pte.
Ltd., Avago Technologies Finance S.àr.l., Avago
Technologies (Malaysia) Sdn. Bhd. (f/k/a Jumbo Portfolio Sdn.
Bhd.), Avago Technologies Wireless (U.S.A.) Manufacturing Inc.
and Avago Technologies U.S. Inc., as borrowers, Avago
Technologies Holding Pte. Ltd., each lender from time to time
parties thereto, Citicorp International Limited (Hong Kong), as
Asian Administrative Agent, Citicorp North America, Inc., as
Tranche B-1
Term Loan Administrative Agent and as Collateral Agent,
Citigroup Global Markets Inc., as Joint Lead Arranger and Joint
Lead Bookrunner, Lehman Brothers Inc., as Joint Lead Arranger,
Joint Lead Bookrunner and Syndication Agent, and Credit Suisse,
as Documentation Agent (Credit Agreement).
10
.12
Amendment No. 1 to Credit
Agreement, dated December 23, 2005.
10
.13
Amendment No. 2, Consent and
Waiver under Credit Agreement, date April 16, 2006.
10
.14
Guarantee, dated December 1,
2005, among the subsidiaries signatory thereto in favor of
Citicorp North America, Inc., as Collateral Agent
(Guarantee).
10
.15
Supplement No. 1 to
Guarantee, dated May 1, 2006, among Avago Technologies
Sensor IP Pte. Ltd., Avago Technologies Sensor (U.S.A.) Inc. and
Citicorp North America, Inc., as Collateral Agent.
10
.16
Security Agreement, dated
December 1, 2005, among Avago Technologies Wireless
(U.S.A.) Manufacturing Inc., Avago Technologies U.S. Inc.,
each of the subsidiaries signatory thereto and Citicorp North
America, Inc., as Collateral Agent (Security
Agreement).
10
.17
Supplement No. 1 to Security
Agreement, dated May 1, 2006, among Avago Technologies
Wireless (U.S.A.) Manufacturing Inc., Avago Technologies
U.S. Inc., Avago Technologies Sensor (U.S.A.) Inc. and
Citicorp North America, Inc., as Collateral Agent.
10
.18
Equity Incentive Plan for
Executive Employees of Avago Technologies Limited and
Subsidiaries (Amended and Restated Effective as of
April 14, 2006).
10
.19
Equity Incentive Plan for Senior
Management Employees of Avago Technologies Limited and
Subsidiaries (Amended and Restated Effective as of
April 14, 2006).
10
.20
Form of Management Shareholders
Agreement
II-44
Table of Contents
10
.21
Form of Nonqualified Share Option
Agreement Under the Amended and Restated Equity Incentive Plan
for Executive Employees of Avago Technologies Limited and
Subsidiaries for U.S. employees
10
.22
Form of Nonqualified Share Option
Agreement Under the Equity Incentive Plan for Executive
Employees of Avago Technologies Limited and Subsidiaries for
employees in Singapore
10
.23
Form of Nonqualified Share Option
Agreement Under the Equity Incentive Plan for Executive
Employees of Avago Technologies Limited and Subsidiaries for
U.S. employees granted rollover options
10
.24
Form of Nonqualified Share Option
Agreement Under the Amended and Restated Equity Incentive Plan
for Senior Management Employees of Avago Technologies Limited
and Subsidiaries for U.S. non-employee directors
10
.25
Form of Nonqualified Share Option
Agreement Under the Amended and Restated Equity Incentive Plan
for Senior Management Employees of Avago Technologies Limited
and Subsidiaries for non-employee directors in Singapore
10
.26
Offer Letter Agreement, dated
March 28, 2006, between Avago Technologies Limited and Hock
E. Tan.
10
.27
Severance Benefits Agreement,
dated June 14, 2004, between Avago Technologies Limited and
Mercedes Johnson.
10
.28
Form of Indemnity Agreement
between Avago with its directors and certain officers
10
.29
Amended and Restated
Shareholders Agreement, dated February 3, 2006, Avago
Technologies Limited, Silver Lake Partners II Cayman, L.P.,
Silver Lake Technology Investors II Cayman, L.P., Integral
Capital Partners VII, L.P., KKR Millennium Fund (Overseas),
Limited Partnership, KKR European Fund, Limited Partnership, KKR
European Fund II, Limited Partnership, KKR Partners
(International), Limited Partnership, Capstone Equity Investors
LLC, Avago Investment Partners, Limited Partnership, Bali
Investments S.àr.l., Seletar Investments Pte. Ltd., Geyser
Investment Pte Ltd and certain other Persons.
10
.30
Registration Rights Agreement,
dated December 1, 2005, among Avago Technologies Limited,
Silver Lake Partners II Cayman, L.P., Silver Lake
Technology Investors II Cayman, L.P., Integral Capital
Partners VII, L.P., KKR Millennium Fund (Overseas), Limited
Partnership, KKR European Fund, Limited Partnership, KKR
European Fund II, Limited Partnership, KKR Partners
(International), Limited Partnership, Capstone Equity Investors
LLC, Avago Investment Partners, Limited Partnership, Bali
Investments S.àr.l., Seletar Investments Pte. Ltd., Geyser
Investment Pte Ltd and certain other Persons.
10
.31
Advisory Agreement, dated
December 1, 2005, among Avago Technologies Limited, Avago
Technologies International Sales Pte. Limited, Kohlberg Kravis
Roberts & Co., L.P. and Silver Lake Management Company,
LLC.
10
.32
Purchase and Sale Agreement, dated
October 28, 2005, among Avago Technologies Pte. Limited,
Avago Technologies Storage Holding (Labuan) Corporation, other
sellers, PMC-Sierra, Inc. and Palau Acquisition Corporation
(PMC Purchase and Sale Agreement) (incorporated
herein by reference to the Exhibits filed with PMC-Sierra, Inc.
Current Report on
Form 8-K
dated October 28, 2005 and filed November 3, 2005
(Commission File
No. 001-19084)).
10
.33
Amendment to PMC Purchase and Sale
Agreement, dated March 1, 2006.
10
.34
Purchase and Sale Agreement, dated
February 17, 2006, among Avago Technologies Limited, Avago
Technologies Imaging Holding (Labuan) Corporation, other
sellers, Marvell Technology Group Ltd. and Marvell International
Technology Ltd. (Marvell Purchase and Sale
Agreement) (incorporated herein by reference to the
Exhibits filed with Marvell Technology Group Ltd. Annual Report
on
Form 10-K
for the fiscal year ended December 31, 2005 filed on
April 13, 2006 (Commission File
No. 000-30877)).
10
.35
Amendment No. 1 to Marvell
Purchase and Sale Agreement, dated April 11, 2006
(incorporated herein by reference to the Exhibits filed with
Marvell Technology Group Ltd. Annual Report on
Form 10-K
for the fiscal year ended December 31, 2005 filed on
April 13, 2006 (Commission File
No. 000-30877)).
12
.1
Computation of Ratio of Earnings
to Fixed Charges
21
.1
List of Subsidiaries
23
.1*
Consent of WongPartnership,
Singapore (included as part of its opinion filed as
Exhibit 5.1 hereto).
23
.2*
Consent of Latham &
Watkins LLP, Menlo Park, California (included as part of its
opinion filed as Exhibit 5.2 hereto)
23
.3*
Consent of Zaid Ibrahim &
Co., Kuala Lumpur, Malaysia (included as part of its opinion
filed as Exhibit 5.3 hereto)
II-45
Table of Contents
23
.4*
Consent of Loyens &
Loeff, Amsterdam, the Netherlands (included as part of its
opinion filed as Exhibit 5.4 hereto)
23
.5*
Consent of Stikeman Elliot LLP,
Toronto, Canada (included as part of its opinion filed as
Exhibit 5.5 hereto)
23
.6*
Consent of Latham &
Watkins LLP, Hamburg, Germany (included as part of its opinion
filed as Exhibit 5.6 hereto)
23
.7*
Consent of Pavia E Ansaldo, Milan,
Italy (included as part of its opinion filed as Exhibit 5.7
hereto)
23
.8*
Consent of Latham &
Watkins LLP, Tokyo, Japan (included as part of its opinion filed
as Exhibit 5.8 hereto)
23
.9*
Consent of Kuri Breña,
Sánchez Ugarte, Corcuera y Aznar, S.C., Mexico City, Mexico
(included as part of its opinion filed as Exhibit 5.9
hereto)
23
.10*
Consent of Latham &
Watkins, London, United Kingdom (included as part of its opinion
filed as Exhibit 5.10 hereto)
23
.11
Consent of PricewaterhouseCoopers
LLP
23
.12
Consent of PricewaterhouseCoopers
LLP
24
Powers of Attorney (included in
signature pages of initial filing)
25
.1
Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939
of The Bank of New York with respect to the Indenture governing
the
10
1
/
8
% Senior
Notes and Senior Floating Rate Notes.
25
.2
Form T-1
Statement of Eligibility under the Trust Indenture Act of 1939
of The Bank of New York with respect to the Indenture governing
the
11
7
/
8
% Senior
Subordinated Notes.
99
.1
Form of Letter of Transmittal
99
.2
Form of Letter to Brokers,
Dealers, Commercial Banks, Trust Companies and Other Nominees
99
.3
Form of Letter to Clients
99
.4
Form of Notice of Guaranteed
Delivery
*
To be filed by amendment.
Previously filed.
II-46
(i) | la produzione, lacquisto, la vendita e relative trattative, anche in qualità di agente o distributore, di prodotti e soluzioni hardware e software, attrezzature tecniche e scientifiche e in generale prodotti a semiconduttore e materiale elettrico ed elettronico di qualsiasi tipo (i Prodotti); | |
(ii) | la prestazione di servizi di assistenza tecnica relativamente ai Prodotti, sia di produzione propria che di terzi, provvedendo eventualmente anche allinstallazione ed al collaudo degli stessi; | |
(iii) | studiare, ricercare, sviluppare, realizzare, sperimentare, acquistare, garantire, e concedere in licenza i Prodotti, sistemi e servizi nel campo delle tecnologie ottiche a semiconduttore per applicazioni nelle telecomunicazioni, per le aziende di esercizio delle telecomunicazioni ed in generale ogni procedimento, soluzione, know-how e/o strumento, brevettato o meno, concernente i Prodotti ed materiali di cui sopra. |
(i) | mediante consultazione scritta o sulla base del consenso espresso per iscritto. La procedura di consultazione scritta, o di acquisizione del consenso espresso per iscritto non é soggetta a particolari vincoli purché sia assicurato a ciascun Amministratore il diritto di partecipare alla decisione e sia assicurata a tutti gli aventi diritto adeguata informazione. | |
La decisione é adottata mediante approvazione per iscritto di un unico documento ovvero di più documenti che contengano il medesimo testo di decisione da parte della maggioranza degli amministratori. Nel testo della decisione dovrà essere indicato il termine per la conclusione del procedimento. La decisione assumerà la data dellultima dichiarazione pervenuta nel termine prescritto. | ||
Le decisioni del consiglio di amministrazione sono prese con il voto favorevole della maggioranza degli amministratori in carica. | ||
Le decisioni adottate mediante consultazione scritta o sulla base del consenso espresso per iscritto devono essere trascritte senza indugio nel libro delle decisioni degli amministratori da uno qualsiasi degli amministratori. La relativa documentazione è |
conservata dalla società; | ||
(ii) | ovvero mediante delibera consiliare assunta con la presenza della maggioranza degli amministratori in carica, a maggioranza dei voti dei presenti. |
a) | sia consentito al presidente del collegio sindacale di accertare lidentità e la legittimazione degli intervenuti, regolare lo svolgimento delladunanza, constatare e proclamare i risultati della votazione; | |
b) | sia consentito al soggetto verbalizzante di percepire adeguatamente gli eventi oggetto di verbalizzazione; | |
c) | sia consentito agli intervenuti di partecipare alla discussione e alla votazione simultanea sugli argomenti allordine del giorno. |
(i) | production, purchase and sale (also through import and/or export), and related trade also as agent or distributor, of hardware and software products and solutions, technical and scientific equipment and generally any and all semi-conductor products, electrical and electronic materials (the Products); | |
(ii) | technical assistance services related to the Products, be they manufactured by the Company or third parties, including installation, testing and maintenance of the same, | |
(iii) | studies, research, development, tests, trials on the Products, acquire, guarantee and license Products, systems and services, particularly (without limitation) in the field of semi-conductor optical technologies for application to telecommunication, for telecommunication service undertakings and generally any procedure, solution, instrument or know-how, patented or not, concerning the same; |
| perform all commercial, industrial, personal and real property transactions considered necessary or useful by the Management; | |
| grant sureties and other kind of guarantees, also on real property; | |
| acquire, either directly or indirectly, interests and participations in other companies or businesses which have analogous or related corporate purposes. |
(i) | by written consent or based on consent expressed in writing. The procedure for written consent or consent expressed in writing, shall not be subject to any particular restrictions, provided that each Director is permitted to participate at the taking of decision and all receive adequate information. | |
Decisions shall be adopted by written approval of a single document, or, of more documents which shall all contain the same text of the decision taken by the majority of Directors. The text of the decision shall indicate the term for conclusion of the procedure. The decision shall bear the date of the last declaration which arrived within the term prescribed. | ||
Decisions of the Board of Directors shall be adopted with the favorable vote of the majority of Directors in office. | ||
Decisions adopted by written consent or based on consent expressed in writing shall be recorded without delay in the Directors Minute Book by one of the Directors. The thereto related documentation shall be kept by the Company; |
(ii) | by resolution of the Board, adopted with the presence of the majority of Directors in office and the favorable vote of the majority of those present. |
| the quotaholders who approved, denied or expressly abstained from voting and the capital represented by each of them; | |
| the date when the decision was taken; | |
| any observations or declarations in respect of the subject matter of the consultation, if requested by the quotaholders. |
(a) | that the Chairman of the Board of Auditors is able to ascertain the identity and right to attend of those present, control the carrying out of the meeting, verify and proclaim the results of the voting; |
(b) | that the person who records the Minutes is able to adequately follow the events subject to drafting; |
(c) | that the persons present are able to take part in the discussions and simultaneously vote on the items on the agenda. |
|
L | 1 | Ver 1 | |||||
|
||||||||
|
||||||||
(For Official use only) |
CT | MK | TS | Lot No | Property Address | ||||||||||
Vol | Fol | |||||||||||||
428
|
133 | 19 | | 1935X | Whole | |||||||||
|
||||||||||||||
|
1 Yishun Avenue 7
Singapore 768923 |
ID/Co regn.no:
|
NA | |
Name:
|
HOUSING AND DEVELOPMENT BOARD | |
|
||
Address:
(Within Singapore for service of Notice) |
HDB Centre, 3451 Jalan Bukit Merah,
Singapore 159459 |
Co. Regn No:
|
198602431Z | |
Name:
|
COMPAQ ASIA PTE LTD | |
|
||
Place of Incorporation:
|
Singapore | |
Address:
|
1 Temasek Avenue # 27-01 | |
(Within Singapore for
|
Millenia Tower | |
service of Notice)
|
Singapore 039192 |
2
(1)
|
(a) | To pay the yearly rent of Dollars Four Hundred and Fourteen Thousand Eight Hundred and Sixty-eight ($414,868.00) calculated at the rate of Dollars Twenty ($20.00) per square metre per annum from the 1 st day of December 1989 which rate shall be subject to revision on the 1 st day of December 1990, and thereafter annually on the 1 st day of December of each succeeding year. The revision on the 1 st day of December 1990 and each subsequent annual revision shall be subject to a rate based on the market rent on the date of such revision and determined in the manner following but so that the increase shall not exceed 7.6% of the yearly rent of each immediately preceding year PROVIDED THAT from the 1 st day of January 1999 to the 30 st day of November 2001, the Lessee shall pay yearly rent at the prevailing market rate as at 1 st January 1999 And PROVIDED ALSO THAT the yearly rent payable from the 1 st day of December 2001 and for each succeeding year thereafter shall be subject to revision and shall be a the rate based on the market rent on the date of such revision determined in the manner following but so that the increase shall not exceed 5.5% of the yearly rent of each immediately preceding year. The market rent in this context shall mean the rent per square metre per annum of the said land excluding the buildings and other structures erected thereon and shall be determined by the Lessor on or about the dates mentioned herein (and payable retrospectively with effect from the dates mentioned herein if determined after the dates mentioned herein) and the determination of the Lessor as to the market rent shall be final and conclusive: |
3
|
(b) | The yearly rent aforesaid shall be paid quarterly in advance without deductions and without demand from the 1 st day of December 1989 at the office of the Lessor or such other office as the Lessor may designate; | ||
|
||||
(2) | To pay interest at the rate of 8.5% per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or other outstanding sums due and payable under the Lease from the due dates thereof until payment in full is received by the Lessor; | |||
|
||||
(3) | At the termination of the said term or at the earlier determination thereof to yield up to the Lessor the said land together with all buildings, structures and fixtures therein in good and tenantable repair; | |||
|
||||
(4) | Not to demise, transfer, assign, mortgage, let, sublet, underlet, license or part with the possession of the said land or any part thereof in whatsoever manner and not to effect any form of reconstruction howsoever brought about including any form of amalgamation or merger with or takeover by another company, firm or body or party, without first obtaining the consent of the Lessor in writing, Section 17 of the Conveyancing Law of Property Act (Chapter 61) shall not apply. Any consent, if granted by the Lessor shall be given on such terms and conditions as the Lessor may in its entire and unfettered discretion deem fit to impose and shall include:- | |||
|
||||
|
(a) | full revision of the rental to the prevailing market rate from the date of assignment; | ||
|
||||
|
(b) | payment of such administration fee as determined by the Lessor; | ||
|
||||
(5) | Not to use or to permit or suffer the said land or the building thereon or any part of the said land and building thereof to be used otherwise than as a factory for the assembly of computer parts and boards subject to the approval of the Competent Authority appointed under Section 3 of the Planning Act; | |||
|
||||
(6) | Not to use the said land or any part thereof for any illegal or immoral purposes; | |||
|
||||
(7) | Not to erect permit or suffer to be carried out any construction of chimneys or ducts of any kind whatsoever in or at any part of the building for the purpose of discharging smoke gas fume or any other substance connected directly or indirectly with the manufacturing processes; | |||
|
||||
(8) | Not without the consent in writing of the Lessor to affix or exhibit to erect or paint or permit or suffer to be affixed or exhibited or erected or painted on or upon any part of the exterior of the demised premises or of the external walls or rails or fences thereof any nameplate signboard placard poster or other advertisement or hoarding; | |||
|
||||
(9) | To make reasonable provision against and be responsible for all loss injury or damage to any person or property including that of the Lessor for which the Lessee may be held liable arising out of or in connection with the occupation |
4
and use of the said land and to indemnify the Lessor against all proceedings claims costs and expenses which he may Incur or for which he may be held liable as a result of any act neglect or default of the Lessee its servants contractors or agents; | ||||
|
||||
(10) | Not to effect a change of name without the prior consent in writing of the Lessor PROVIDED THAT on every change of name the Lessee shall pay to the Lessor a fee to be specified by the Lessor in relation to such consent; | |||
|
||||
(11) | Not to install and/or use any electrical installations, machines or apparatus that may cause or causes heavy power surge, high frequency voltage and current, air borne noise, vibration or any electrical or mechanical interference or disturbance whatsoever which may prevent or prevents in any way the service or use of any communication system or affects the operation of other equipment, installations, machinery, apparatus or plants of other Lessees and in connection therewith, to allow the Lessor or any authorised persons to inspect at all reasonable times, such installations, machines or apparatus in the said land to determine the source of the interference or disturbance and thereupon, to take suitable measures, at the Lessees own expense, to eliminate or reduce such interference or disturbance to the Lessors satisfaction, if it is found by the Lessor or such authorised person that the Lessees electrical installations, machines or apparatus is causing or contributing to the said interference or disturbance; | |||
|
||||
(12) | To indemnify the Lessor against any claims, proceedings, action, losses, penalties, damages, expenses, costs, demands which may arise in connection with Clause 1(11) above; | |||
|
||||
(13) | To make good and sufficient provision for the safe and efficient disposal of all waste including but not limited to pollutants generated at the said land to the requirements and satisfaction of the Lessor and other relevant Government authorities PROVIDED THAT in the event of any default by the Lessee under this covenant the Lessor may carry out such remedial measures as it thinks necessary and all costs and expenses incurred thereby shall be recoverable forthwith from the Lessee as a debt; | |||
|
||||
(14) | To pay and to indemnify the Lessor against Goods and Services Tax or any other taxes levies charges whatsoever chargeable in respect of any yearly rent or any sums payable to the Lessor or any moneys received or receivable by the Lessor or any moneys paid or costs or expenses incurred by the Lessor or any other matters under or relating to these presents and the Lessee shall pay to the Lessor on demand a sum equivalent to the amount of such Goods and Services Tax or other taxes levies or charges. | |||
|
||||
(15) | To pay all charges of the Public Utilities Board and all other relevant competent authorities for the supply of water gas sanitation or electric light or power at any time hereafter during the said term charged or imposed by the Public Utilities Board and all other relevant competent authorities in respect of the said land and the buildings thereon. |
5
2. To perform, observe and be bound by: | ||||
|
||||
(1) | the covenants, conditions and powers implied by law in instruments of lease (or to such of them as are not expressly negatived or modified by this Instrument or the Memorandum of Lease hereinafter referred to); and | |||
|
||||
(2) | the covenants and conditions set forth in the Memorandum of Lease filed in the Singapore Land Registry and numbered as ML/24 all of which terms and conditions shall form part of this Instrument as if fully set out herein and shall apply hereto insofar as they are not expressly negatived or modified by this Instrument. | |||
|
||||
3. The Lessor further covenants with the Lessee that the Lessor shall at the written request of the Lessee made not less than twelve (12) months before the expiry of the said term but not earlier than the twenty-seventh (27 th ) year of the said term grant to the Lessee a Lease of the said land for a further term of 30 years (hereinafter referred to as the further term) which shall commence from the data immediately following the expiration of the said term on the same terms and conditions and containing like covenants as are herein contained with the exception of the present covenant for renewal and such variations or modifications as shall be imposed by the Lessor PROVIDED THAT:- | ||||
|
||||
(1) | There be no existing breach(es) or non-observance(s) of any of the covenants and conditions herein contained on the part of the Lessee to be observed or performed; | |||
|
||||
(2) | The rental payable for the further term shall be as set out hereunder:- | |||
|
||||
|
(a) | The rent for the first year of the further term commencing on the 1 st day of December 2018 shall be calculated at the rate based on the market rent of the said land at the commencement of the further term. Thereafter the yearly rent shall be subject to revision every year commencing on the 1 st day of December 2019 to the rate based on the market rent of the said land on the date of each respective revision but so that the increase shall not exceed 5.5% of the yearly rent for year immediately preceding the date of revision. | ||
|
||||
|
(b) | The market rent in this context shall mean the rent per square metre per annum of the said land excluding the buildings and other structures erected thereon and shall be determined by the Lessor on or about the dates mentioned herein (and payable retrospectively with effect from the dates mentioned herein if determined after the dates mentioned herein) and the determination of the Lessor as to the market rent shall be final and conclusive. | ||
|
||||
|
(c) | The yearly rent aforesaid shall be paid quarterly in advance without deductions and without demand from the 1 st day of December 2018 at the office of the Lessor or such other office as the Lessor may designate. |
6
|
||||
|
(d) | Any demise, transfer, assignment or parting of possession of the said land or any part thereof by the Lessee in whatsoever manner within 5 years of the commencement of the further term will be approved by the Lessor only upon payment by the Lessee of a fee (hereinafter called the additional fee) which shall be equivalent to the value of the buildings and there shall also be a full revision of the rental to the prevailing market rate from the date of assignment and payment of such administrative fee as determined by the Lessor as provided under Clause 1(4) herein contained. The value of the building shall be determined by the Lessor alone and the Lessors assessment shall be final and conclusive and not be subject or open to review by the Lessee. PROVIDED THAT the Lessee shall not be required to pay the additional fee for any demise, transfer, assignment or parting with possession of the said land or any part thereof by the Lessee in whatsoever manner after the aforesaid 5 years period; | ||
|
||||
|
(e) | All costs expenses charges legal or otherwise including stamp duty and the Lessors legal costs of or connected with the preparation completion and registration of the Lease for the further term of 30 years shall be borne by the Lessee. | ||
|
||||
(3) | The interest chargeable shall be at the rate of 8.5% per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or other outstanding sums due and payable under the Lease from the due dates thereof until payment in full is received by the Lessor. |
7
The Common Seal of HOUSING
|
) | |||||
AND DEVELOPMENT BOARD
|
) | |||||
was hereunto affixed in the
|
) | |||||
presence of:-
|
) | |||||
|
30/10/00 | |||
|
||||
|
/s/ Mr Quek Sze Swee | |||
|
||||
|
MEMBER Mr Quek Sze Swee | |||
|
||||
|
/s/ Gomathei Muthusamy | |||
|
||||
|
OFFICER | |||
|
GOMATHEI MUTHUSAMY |
8
)
)
)
)
|
/s/ Lee Khene Hock | |||
|
||||
|
DIRECTOR | |||
|
||||
|
/s/ Edmund Leow | |||
|
||||
|
SECRETARY |
|
/s/ Lyn Wee Soon Li | |||
|
||||
|
NAME & SIGNATURE OF SOLICITOR FOR THE LESSEE |
/s/ Lyn Wee Soon Li | ||||
LYN WEE SOON LI | ||||
Solicitor for the Lessee | ||||
/s/ Siti Zennifa Rahim | ||||
SITI ZENNIFA RAHIM | ||||
Solicitor for the Lessor | ||||
/s/ Lyn Wee Soon Li | ||||
LYN WEE SOON LI | ||||
Solicitor for the Lessee |
Note: | This portion shall be printed or typed on the reverse side of the last page of the application. |
THE LAND TITLES ACT
|
VL | 1 | Ver 1 | |
|
||||
VARIATION OF LEASE
|
(A) | DESCRIPTION OF LAND: |
CT (Sub) | ||||||||||
Vol | Fol | MK | TS | Lot No | Property Address | |||||
568 | 33 | 19 | | 1935X | Whole | |||||
1 Yishun Avenue 7 | ||||||||||
Singapore 768923 |
(B) | REGISTERED LEASE NO: I/33183P |
(C) | LESSOR |
ID/Co. regn no:
|
||
|
||
Name:
|
HOUSING AND DEVELOPMENT BOARD | |
|
||
Address:
|
||
(Within Singapore for
|
||
service
of Notice)
|
HDB Center, 3451 Jalan Bukit Merah, Singapore 159459 |
(D) | LESSEE |
ID/Co. no:
|
199903281G | |
|
||
Name:
|
AGILENT TECHNOLOGIES SINGAPORE PTE LTD | |
|
||
Address:
|
9 Temasek Boulevard #09-03 | |
(Within
Singapore for service of Notice)
|
Suntec City Tower 2
Singapore 038989 |
|
|
1. | To delete clause 1(5) of the Lease and substitute with the following: | ||
Not to use or to permit or suffer the said land or any building thereon or any part of the said land and building thereof to be used otherwise than for, manufacturing of semiconductor products and components as well as test and assembly of test and measurement instruments except with the consent in writing of the Lessor and subject to the approval of the competent authority appointed under Section 5 of the Planning Act (Cap. 232). The Lessee shall confine all activities within the boundary of the said land. For the avoidance of doubt, the Lessee shall not place any articles and goods on the common area outside the boundary of the said land. | |||
2. | To pay all costs disbursement fees and charges legal or otherwise including the Lessors cost in the preparation of this Variation of Lease and any future documents, deeds, supplementary or collateral or in any way relating to this Lease. | ||
3. | Save as herein varied, the terms of the Lease shall be binding and in full force and effect in all respects. |
(E) | DATE OF VARIATION OF LEASE : 15 January 2002 |
(F) | EXECUTION BY LESSOR |
|
The Common Seal of HOUSING
AND DEVELOPMENT BOARD was hereunto affixed in the presence of: |
)
) ) ) |
/s/ David Wong | ||||
MEMBER | ||||
Col(NS) David Wong | ||||
/s/ Gomathei Muthusamy | ||||
OFFICER | ||||
GOMATHEI MUTHUSAMY |
(G) | EXECUTION BY LESSEE |
|
The Common Seal of AGILENT
TECHNOLOGIES SINGAPORE PTE LTD was hereunto affixed in the presence of: |
)
) ) ) |
|
/s/ [ILLEGIBLE] | |||
|
|
|||
|
||||
|
/s/ [ILLEGIBLE] | |||
|
|
(H) | CERTIFICATE OF CORRECTNESS: | |
I, the Solicitor for the Lessor hereby certify that this instrument is correct for the purposes of the Land Titles Act and that I have a Practising Certificate issued on 1 April 2001. |
|
||||
|
TEM MUI KIM | |||
|
|
I, the Solicitor for the Lessee hereby certify that this instrument is correct for the purposes of the Land Titles Act and that I have a Practising Certificate issued on 1 st April 2001. |
|
||||
|
Chai Elsa | |||
|
|
Note: This portion shall be printed or typed on the reverse side of the last page of the Application |
CT
Vol. |
Fol. |
MK | TS | Lot No. | Property Address Whole or part (If part lot, to state approved new lot / strata lot or to annex plan and give details) | |||||||||||
428
|
132 | 19 | - | 1937 | Whole. | |||||||||||
|
||||||||||||||||
|
1 Yishun Avenue 7
Singapore 768923 |
Name | HOUSING & DEVELOPMENT BOARD | |
Address:
(within Singapore for service of Notice) |
3451 Jalan Bukit Merah, HDB Centre.
Singapore 159459 |
Co regn. No:
|
198602431 Z | |
Name:
|
COMPAQ ASIA PTE. LIMITED | |
Place of Incorporation
|
Singapore | |
Address:
(within Singapore for service of Notice) |
A company incorporated in the Republic of Singapore and having its registered address at 1 Temasek Avenue #27-01 Millenia Tower Singapore 039192. |
Manner of Holding
|
|
-1-
(a) | the yearly rent payable from the 1 st day of January 1999 to the 30 th day of November 2001 shall be based on the market rent as at 1 st January 1999; | |
(b) | the yearly rent payable from the 1 st day of December 2001 and for each succeeding year thereafter shall be subject to revision and shall be at a rate based on the market rent on the date of such revision determined in the manner following but so that the increase shall not exceed five point five per cent (5.5%) of the yearly rent for each immediately preceding year. |
(a) | the covenants, conditions and powers implied by law in instruments of lease (or to such of them as are not hereinafter expressly negatived or modified); | |
(b) | the covenants and conditions set forth in the Memorandum of Lease filed in the Registry of Titles as ML/24 (which Memorandum is hereinafter called ML/24) subject to the variations as provided below. |
-2-
1. | The provisions of ML/24 shall apply hereto, subject to the variations thereof as provided in the following clauses, and in the application thereof to this Lease, each and every reference in ML/24 to the words or expressions set out in the first column below shall have the meanings set forth in the second column respectively. |
Word/Expression | Meaning | |||
the Lease
|
: | this Lease | ||
the Lessee
|
: | the lessee as hereinbefore named. | ||
the Lessor
|
: | the Lessor as hereinbefore named. | ||
the said land
|
: | the land above described. | ||
the said term
|
: | the term of tenancy as above recited. |
2. | Clause 1 of ML/24 in its application to this Lease is hereby amended as follows:- |
(a) | by deleting sub-clauses (vi), (vii) and (xiv) thereof and renumbering the remaining sub-clauses in their running order to sub-clauses (i) to (xi) (both inclusive): | ||
(b) | by inserting the (following new sub-clauses thereto:- |
(xii) | not to use or to permit or suffer the said land or any building thereon or any part of the said land and building thereon to be used otherwise than as a factory for the assembly of computer parts and boards subject to the approval of the competent authority appointed under the Planning Act. | ||
(xiii) | Not to use the said land or building thereon or any part thereof for any illegal or immoral purpose and not to carry on or permit or suffer to be carried on in or upon the said land or any part of the building thereon any noxious noisy dangerous or offensive trade or business or manufacture whatsoever which may be or become a nuisance annoyance or inconvenience to the owners tenants or occupiers of premises neighbouring adjoining or adjacent or to the Lessor. | ||
(xiv) | Not to erect permit or suffer to be carried out any construction of chimneys or ducts of any kind whatsoever in or at any part of the buildings on the said land for the purpose of discharging smoke gas fume or |
-3-
any other substance connected directly or indirectly with the manufacturing processes. | |||
(xv) | Not to demise, transfer, assign, mortgage, let, sublet, underlet, license or part with the possession of the said land or any building thereon or any part thereof in whatsoever manner and not to effect any form of reconstruction howsoever brought about including any form of amalgamation or merger with or take-over by another company, firm or body or party, without first obtaining the consent of the Lessor in writing. Section 17 of the Conveyancing and Law of property Act (Chapter 61) shall not apply. Any consent, if granted by the Lessor shall be given on such terms and conditions as the lessor may in its entire and unfettered discretion deem fit to impose and shall include:- |
(a) | full revision of the rental to the prevailing market rate from the date of assignment; | ||
(b) |
payment of such administrative fees as
determined by the Lessor.
|
(xvi) | On or before the execution of this lease, the Lessee shall supply to the Lessor in writing a list of names of its existing shareholders and particulars of classes of shares held by each and every shareholder and the value thereof and such list shall be duly certified to be correct by a director of the Lessee. | ||
(xvii) | Not without the consent in writing of the Lessor to affix or exhibit or erect or paint or permit or suffer to be affixed or exhibited or erected or painted on or upon any part of the exterior of any buildings on the said land or of the external walls or rails or fences thereof any nameplate signboard placard poster or other advertisement or hoarding. | ||
(xvii) | To make reasonable provision against and be responsible for all loss injury or damage to any person or property including that of the Lessor for which the Lessee may be held liable arising out of or in connection with the occupation and use of the said land and any buildings thereon and to indemnify the Lessor against all proceedings claims costs and expenses which It may incur or for which it may be held liable as a result of any act neglect or default of the Lessee its servants contractors or agents. | ||
(xix) | Not to effect a change of name without prior consent in writing of the Lessor PROVIDED THAT on every change of name the Lessee shall pay to the Lessor a |
-4-
fee to be specified by the Lessor in relation to such consent. | |||
(xx) | Not to Install and/or use any electrical installations, machines or apparatus that may cause heavy power surge, high frequency voltage and current, air borne noise, vibration or any electrical or mechanical interference or disturbance whatsoever which may prevent or prevents in any way the service or use of any communication system or affects the operation of other equipment, installations, machinery, apparatus or plants of other lessees and in connection therewith, to allow the Lessor or any authorised persons to inspect at all reasonable times, such installations, machines or apparatus in the said land and any buildings thereon to determine the source of the interference or disturbance and thereupon, to take suitable measures, at the Lessees own expense, to eliminate or reduce such Interference or disturbance to the Lessors satisfaction If it is found by the Lessor or such authorised person that the Lessees electrical installations, machines or apparatus is causing or contributing to the said interference or disturbance. | ||
(xxi) | To indemnify the Lessor against any claims, proceedings, action, losses, penalties, damages, expenses, costs, demands which may arise in connection with sub-clause (xx) above. | ||
(xxii) | To make good and sufficient provision for the safe and efficient disposal of all waste including but not limited to pollutants generated at the said land and any buildings thereon to the requirements and satisfaction of the Lessor and other relevant government authorities PROVIDED THAT in the event of any default by the Lessee under this covenant the Lessor may carry out such remedial measures as it thinks necessary and all costs and expenses incurred thereby shall be recoverable forthwith from the Lessee as a debt. | ||
(xxiii) | To pay interest at the rate of eight point five per cent (8.5%) per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or other outstanding sums due and payable under this Lease from the above due dates thereof until payment in full is received by the Lessor. | ||
(xxiv) | At the termination of the said term or at the earlier determination thereof to yield up to the lessor the said land together with all buildings, structures and fixtures therein in good and tenantable repair. |
-5-
3. Clause 2 of ML/24 in its application to this Lease is hereby amended by inserting the words and buildings thereon after the words land in line 4 and substituting the word person and It: for the words persons and him in lines 4 and 5 respectively. | |||
4. Clause 3 of ML/24 in its application to this Lease is hereby amended by inserting after the word Lessor in line 8 thereof the words to impose such penalties as it deems fit as well as for the Lessor and by inserting the words or buildings thereon after the words land in line 9. | |||
5. In addition to Clauses 2 and 3 of ML/24 the Lessor further covenants with the Lessee that he shall at the written request of the Lessee made not less than twelve (12) months before the expiry of the said term but not earlier than the twenty-eight (28 th ) year of the said term grant to the Lessee a lease of the said land for a further term of 30 years (hereinafter referred to as the further term) which shall commence from the date immediately following the expiration of the said term on the same terms and conditions and containing like covenants as are herein contained with exception of the present covenant for renewal or such variations or modifications as shall be imposed by the Lessor PROVIDED that:- |
(i) | there be no existing breach(es) or non observance(s) of any of the covenants and conditions herein contained on the part of the Lessee to be observed or performed. | ||
(ii) | the rental payable for the further term shall be as set out hereunder:- |
(a) | The yearly rent for the further term commencing on the 1 st day of December 2018 shall be at the rate based on the market rent at the commencement of the further term (hereinafter referred to as the Second Initial Rent) which rate shall however be subject to a revision on the 1 st day of December 2019 to a rate based on the market rent prevailing on the date of such revision determined in the manner following but so that the increase shall not exceed five point five per cent (5.5%) of the Second Initial Rent. | ||
(b) | The yearly rent so revised shall be subject to revision on the 1 st day of December annually thereafter and shall be at a rate based on the market rent prevailing on the date of such revision but so that the increase shall not exceed five point five per cent (5.5%) of the yearly rent for the immediately preceding year. | ||
(c) | The market rent and the time of payment of the yearly rent shall be as aforesaid. | ||
(d) | Any demise, transfer, assignment or parting of possession of the said land or any buildings thereon or |
- 6 -
any part thereof by the Lessee in whatsoever manner within 5 years of the commencement of the further term will be approved by the Lessor only upon payment by the Lessee of a fee (hereinafter called the additional fee) which shall be equivalent to the value of the buildings and there shall also be a full revision of the rental to the prevailing market rate from the date of assignment and payment of such administrative fee as determined by the Lessor as provided in Clause 1(xv) of ML/24. The value of the buildings shall be determined by the Lessor alone and the Lessors assessment shall be final and conclusive and not subject or open to review by the Lessee. PROVIDED THAT the Lessee shall not be required to pay the additional fee for any demise, transfer, assignment or parting with possession of the said land or any buidings thereon or any part thereof by the Lessee in whatsoever manner after the aforesaid 5 year period. | |||
(e) | All costs expenses charges legal or otherwise including stamp duty and the Lessors legal costs of or connected with the preparation completion and registration of the lease for the further term of 30 years shall be borne by the Lessee. |
(iii) | The interest chargeable shall be at the rate of eight point five (8.5%) per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or outstanding sums due and payable under the Lease from the due dates thereof until payment in full is received by the Lessor. |
-7-
The Common Seal of the HOUSING
|
) | |||
|
) | |||
& DEVELOPMENT BOARD was
|
) | |||
|
) | |||
hereunto affixed in the
|
) | |||
|
) | |||
presence
of:
|
) |
EXECUTION
BY LESSEE
|
||||
The
Common Seal of
COMPAQ ASIA PTE. LIMITED |
)
) ) |
|||
) | ||||
Was hereunto affixed in the
presence of:- |
)
) ) |
-8-
|
-s- LYN WEE SOON LI
Solicitor for the Lessee |
|
-s- LYN WEE SOON LI
Solicitor for the Lessee |
|
-s- TEO WEI LING RENEE
Solicitor for the Lessor |
|
-s- LYN WEE SOON LI
Solicitor for the Lessee |
-9-
M/S SHOOK LIN & BOK
|
||
ADVOCATES & SOLICITORS
|
||
1 ROBINSON ROAD
|
||
#18-00 AIA TOWER
|
||
SINGAPORE 048542
|
||
RT/TWL/955110/HDB
|
||
1 August, 2000/TWL
|
||
s:\1995\955110\955110.000721.draft lease.doc
|
|
L | 1 | Ver 1 | ||||||||||
THE LAND TITLES ACT
|
|
||||
VARIATION OF LEASE
|
CT
(SUB) |
MK | TS | Lot No | Property Address Whole or part lot (If part lot, to state appd new lot/strata lot or to annex plan and give details) | ||||||||||
Vol
|
Fol | |||||||||||||
570
|
137 | 19 | | 1937C | Whole. | |||||||||
|
||||||||||||||
|
1 Yishun
Avenue
7
Singapore 768923 |
(B) REGISTERED LEASE NO.: | 1/31607P |
ID/Co reg no:
|
- | |
|
||
Name:
|
HOUSING AND DEVELOPMENT BOARD | |
|
||
Address:
(within Singapore for service of Notice) |
A body corporate incorporated under the Housing and Development Act and having its office at HDB Centre, 3451 Jalan Bukit Merah Singapore 159459 (hereinafter called the Board) |
ID/Co. regn no.:
|
199903281G | |
|
||
Name:
|
AGILENT TECHNOLOGIES SINGAPORE PTE LTD | |
|
||
Address:
|
||
(within
Singapore for
service of Notice)
|
9 Temesek Bculevand #09-03 suntec City Tower 2
Singapore 038989 |
(a) | Clause 1(xii) of ML/24 shall be deleted and substituted with the following:- |
(xii). | Not to use or permit or suffer the said land or any building thereon to be used otherwise than for their own occupation and for the Manufacturing of Semiconductor Products and Components as well as the Testing and Assembly of Test and Measurement Instruments. All activities shall be confined within the boundary of the said land and the Lessee shall not place any articles and goods on the common area outside the boundary of the said land. |
(b) | The Lessee shall pay all registration fees, stamp fees, legal costs and other charges legal or otherwise incurred in connection with the preparation and issue of this Variation of Lease. | |
(c) | Save as herein varied and amended the said Instrument of Lease shall in all other respects continue to be in full force and effect. |
(E) DATE OF VARIATION OF LEASE : |
15 January 2002 |
The Common Seal of the
HOUSING AND
DEVELOPMENT BOARD was hereunto affixed in the presence of: |
)
) ) ) ) |
/s/ Mr Edmund Koh
|
/s/ Jacqueline Low Li Ling | |||
|
||||
MEMBER
|
OFFICER | |||
Mr Edmund Koh
|
JACQUELINE LOW LI LING |
Signed by the abovenamed Lessee
AGILENT TECHNOLOGIES SINGAPORE PTE LTD in the presence of:- |
)
) ) ) ) ) |
|||
|
||||
|
||||
|
||||
/s/ [ILLEGIBLE]
|
||||
Director
|
||||
|
||||
/s/ [ILLEGIBLE]
|
||||
Secretary
|
|
||||
|
/s/ Leong Siew Fong Elaine | |||
|
LEONG SIEW FONG ELAINE | |||
|
||||
|
NAME & SIGNATURE OF SOLICITOR FOR THE BOARD |
|
||||
|
/s/ Chai Elsa | |||
|
Chai Elsa | |||
|
||||
|
NAME & SIGNATURE OF SOLICITOR FOR THE LESSEE |
CT | MK | TS | Lot No | Property Address | ||||||||||||||||||||
Vol | Fol | |||||||||||||||||||||||
522
|
96 | 18 | | 2134N |
Whole
|
|||||||||||||||||||
|
1 Yishun Avenue 7
|
|||||||||||||||||||||||
|
Singapore 768923
|
ID/Co regn.no:
|
NA | |
Name:
|
HOUSING AND DEVELOPMENT BOARD | |
|
||
Address:
(Within Singapore for service of Notice) |
HDB Centre, 3451 Jalan Bukit Merah, Singapore 159459 |
Co. Regn No:
|
198602431Z | |
|
||
Name:
|
COMPAQ ASIA PTE LTD | |
|
||
Place of Incorporation:
|
Singapore | |
Address:
(Within Singapore for service of Notice) |
1 Temasek Avenue 127-01
Millenia Tower Singapore 039192 |
(1) | (a) | To pay the yearly rent of Dollars Four Thousand Three Hundred and Thirty ($4,330.00) calculated at the rate of Dollars Forty-four and Cents Fifty ($44.50) per square metre per annum from the 1 st day of July 1996 which rate shall be subject to revision on the 1 st day of Jury 1997, and thereafter annually on the 1 st day of July of each succeeding year. The revision on the 1 st day of July 1997 and each subsequent annual revision shall be subject to a rate based on the market rent on the date of such revision and determined in the manner following but so that the increase shall not exceed 7.6% of the yearly rent of each immediately preceding year PROVIDED THAT from the 1 st day of January 1999 to the 30 th day of June 2001, the Lessee shall pay yearly rent at the prevailing market rate as at 1 st January 1999 And PROVIDED ALSO THAT the yearly rent payable from the 1 st day of July 2001 and for each succeeding year thereafter shall be subject to revision and shall be a the rate based on the market rent on the date of such revision determined in the manner following but so that the increase shall not exceed 5.5% of the yearly rent of each immediately preceding year. The market rent in this context shall mean the rent per square metre per annum of the said land excluding the buildings and other structures erected thereon and shall be determined by the Lessor on or about the dates mentioned herein (and payable retrospectively with effect from the dates mentioned herein if determined after the dates mentioned herein) and the determination of the Lessor as to the market rent shall be final and conclusive. In the event the gross plot ratio of the buildings and structures on the said land is less than 1.0, the Lessor shall be entitled to |
3
impose and the Lessee shall pay the Lessor additional yearly rent amounting to 10% of the yearly rent hereby reserved as aforesaid, which additional yearly rent is not however to be taken into account as part of the yearly rent, so that the increase in yearly rent shall not exceed 5.5% of the yearly rent (excluding additional yearly rent) for each Immediately preceding year; |
(b) | The yearly rent aforesaid shall be paid quarterly in advance without deductions and without demand from the 1 st day of July 1996 at the office of the Lessor or such other office as the Lessor may designate: |
(2) | To pay interest at the rate of 8.5% per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or other outstanding sums due and payable under the Lease from the due dates thereof until payment in full is received by the Lessor; | |
(3) | At the termination of the said term or at the earlier determination thereof to yield up to the Lessor the said land together with all buildings, structures and fixtures therein in good and tenantable repair. | |
(4) | Not to demise, transfer, assign, mortgage, let, sublet, underlet, license or part with the possession of the said land or any part thereof in whatsoever manner and not to effect any form of reconstruction howsoever brought about including any form of amalgamation or merger with or takeover by another company, firm or body or party, without first obtaining the consent of the Lessor in writing, Section 17 of the Conveyancing Law of Property Act (Chapter 61) shall not apply. Any consent, if granted by the Lessor shall be given on such terms and conditions as the Lessor may in its entire and unfettered discretion deem fit to impose and shall include:- |
(a) | full revision of the rental to the prevailing market rate from the date of assignment; | ||
(b) | payment of such administration fee as determined by the Lessor; |
(5) | Not to use or to permit or suffer the said land or the building thereon or any part of the said land and building thereof to be used otherwise than as for part of driveway servicing Compaqs factory for assembly of computer parts and boards, subject to the approval of the Competent Authority appointed under Section 3 of the Planning Act; | |
(6) | Not to use the said land or any part thereof for any illegal or immoral purposes; | |
(7) | Not to erect permit or suffer to be carried out any construction of chimneys or ducts of any kind whatsoever in or at any part of the building for the purpose of discharging smoke gas fume or any other substance connected directly or indirectly with the manufacturing processes; | |
(8) | Not without the consent in writing of the Lessor to affix or exhibit to erect or paint or permit or suffer to be affixed or exhibited or erected or painted on or |
4
upon any part of the exterior of the demised premises or of the external walls or rails or fences thereof any nameplate signboard placard poster or other advertisement or hoarding; | ||
(9) | To make reasonable provision against and be responsible for all loss injury or damage to any person or property including that of the Lessor for which the Lessee may be held liable arising out of or in connection with the occupation and use of the said land and to indemnify the Lessor against all proceedings claims costs and expenses which he may incur or for which he may be held liable as a result of any act neglect or default of the Lessee its servants contractors or agents; | |
(10) | Not to effect a change of name without the prior consent in writing of the Lessor PROVIDED THAT on every change of name the Lessee shall pay to the Lessor a fee to be specified by the Lessor in relation to such consent; | |
(11) | Not to install and/or use any electrical installations, machines or apparatus that may cause or causes heavy power surge, high frequency voltage and current, air borne noise, vibration or any electrical or mechanical interference or disturbance whatsoever which may prevent or prevents in any way the service or use of any communication system or affects the operation of other equipment, installations, machinery, apparatus or plants of other Lessees and in connection therewith, to allow the Lessor or any authorised persons to inspect at all reasonable times, such installations, machines or apparatus in the said land to determine the source of the interference or disturbance and thereupon, to take suitable measures, at the Lessees own expense, to eliminate or reduce such interference or disturbance to the Lessors satisfaction, if it is found by the Lessor or such authorised person that the Lessees electrical installations, machines or apparatus is causing or contributing to the said interference or disturbance; | |
(12) | To indemnify the Lessor against any claims, proceedings, action, losses, penalties, damages, expenses, costs, demands which may arise in connection with Clause 1(11) above; | |
(13) | To make good and sufficient provision for the safe and efficient disposal of all waste including but not limited to pollutants generated at the said land to the requirements and satisfaction of the Lessor and other relevant Government authorities PROVIDED THAT in the event of any default by the Lessee under this covenant the Lessor may carry out such remedial measures as it thinks necessary and all costs and expenses incurred thereby shall be recoverable forthwith from the Lessee as a debt; | |
(14) | To pay and to indemnify the Lessor against Goods and Services Tax or any other taxes levies charges whatsoever chargeable in respect of any yearly rent or any sums payable to the Lessor or any moneys received or receivable by the Lessor or any moneys paid or costs or expenses incurred by the Lessor or any other matters under or relating to these presents and the Lessee shall pay to the Lessor on demand a sum equivalent to the amount of such Goods and Services Tax or other taxes levies or charges. |
5
(15) | To pay all charges of the Public Utilities Board and all other relevant competent authorities for the supply of water gas sanitation or electric light or power at any time hereafter during the said term charged or imposed by the Public Utilities Board and all other relevant competent authorities in respect of the said land and the buildings thereon. |
2. | The area of the said land (hereinafter referred to as the said area) shall be subject to Government survey or re-survey. | |
(1) | If upon final survey, the said area is found to differ from the final surveyed area within ± 1% of the said area, the final surveyed area will be adopted for the lease of the said land, but the rent shall not be adjusted. Any rental revision subsequent to the final survey shall be calculated based on the final surveyed area. | |
(2) | If the difference between the said area and the final surveyed area exceeds the ± 1% margin, the final surveyed area will be adopted for the lease of the said land and: |
(a) | If the final surveyed area is greater than the said area, the Lessee shall at the request and absolute discretion of the Lessor pay to the Lessor additional rent for the additional area; | ||
(b) | If the final surveyed area is less than the said area, the Lessor shall credit the excess rent paid by the Lessee to the account of the Lessee towards payment of the rent. |
3. | To perform, observe and be bound by: | |
(1) | the covenants, conditions and powers implied by law in instruments of lease (or to such of them as are not expressly negatived or modified by this Instrument or the Memorandum of Lease hereinafter referred to); and | |
(2) | the covenants and conditions set forth in the Memorandum of Lease filed in the Singapore Land Registry and numbered as ML/24 all of which terms and conditions shall form part of this Instrument as if fully set out herein and shall apply hereto insofar as they are not expressly negatived or modified by this Instrument. |
6
(1) | There be no existing breach(es) or non-observance(s) of any of the covenants and conditions herein contained on the part of the Lessee to be observed or performed; | |
(2) | The rental payable for the further term shall be as set out hereunder:- |
(a) | The rent for the first year of the further term commencing on the 1 st day of June 2018 shall be calculated at the rate based on the market rent of the said land at the commencement of the further term. Thereafter the yearly rent shall be subject to revision every year commencing on the 1 st day of June 2019 to the rate based on the market rent of the said land on the data of each respective revision but so that the increase shall not exceed 5.5% of the yearly rent for the year immediately preceding the date of revision. In the event the gross plot ratio of the buildings and structures on the said land is less than 1.0, the Lessor shall be entitled to impose and the Lessee shall pay the Lessor additional yearly rent amounting to 10% of the yearly rent hereby reserved as aforesaid, which additional yearly rent is not however to be taken into account as part of the yearly rent, so that the increase in yearly rent shall not exceed 5.5% of the yearly rent (excluding additional yearly rent) for each immediately preceding year. | ||
(b) | The market rent in this context shall mean the rent per square metre per annum of the said land excluding the buildings and other structures erected thereon and shall be determined by the Lessor on or about the dates mentioned herein (and payable retrospectively with effect from the dates mentioned herein if determined after the dates mentioned herein) and the determination of the Lessor as to the market rent shall be final and conclusive. | ||
(c) | The yearly rent aforesaid shall be paid quarterly in advances without deductions and without demand from the 1 st day of June 2018 at the office of the Lessor or such other office as the Lessor may designate. | ||
(d) | Any demise, transfer, assignment or parting of possession of the said land or any part thereof by the Lessee in whatsoever manner within 5 years of the commencement of the further term will be approved by the Lessor only upon payment by the Lessee of a fee (hereinafter called the additional fee) which shall be equivalent to the value of the buildings and there shall also be a full revision of the rental to the prevailing market rate from the date of assignment and payment of such administrative fee as determined by the Lessor as provided under Clause 1(4) herein contained. The value of the building shall be determined by the Lessor alone and the Lessors assessment shall be final and conclusive and not be subject or open to review by the Lessee. PROVIDED THAT the Lessee shall not be required to pay the additional fee for any demise, transfer, assignment or parting with possession of |
7
the said land or any part thereof by the Lessee in whatsoever manner after the aforesaid 5 years period; |
(e) | All costs expenses charges legal or otherwise including stamp duty and the Lessors legal costs of or connected with the preparation completion and registration of the Lease for the further term of 30 years shall be borne by the Lessee. |
(3) | The interest chargeable shall be at the rate of 8.5% per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or other outstanding sums due and payable under the Lease from the due dates thereof until payment in full is received by the Lessor. |
8
EXECUTION BY LESSOR
|
||||||
|
||||||
The
Common Seal of HOUSING
AND DEVELOPMENT BOARD was hereunto affixed in the presence of:- |
)
) ) ) |
|||||
|
||||||
/s/ Quek Sze Swee | ||||||
MEMBER Mr Quek Sze Swee | ||||||
|
||||||
/s/ Hemani Weerasuriya | ||||||
OFFICER HEMANI WEERASURIYA | ||||||
|
||||||
EXECUTION OF LESSEE
|
||||||
The Common Seal of
COMPAQ ASIA PTE LTD was hereunto affixed in the presence of: |
)
) ) ) |
|||||
|
||||||
/s/ Lee Kheng Hock | ||||||
DIRECTOR | ||||||
|
||||||
/s/ Edmund Leow | ||||||
SECRETARY |
|
/s/ Lyn Wee Soon Li
|
|||
|
LYN WEE SOON LI | |||
|
Solicitor for the Lessee |
|
/s/ Lyn Wee Soon Li
|
|||
|
LYN WEE SOON LI | |||
|
Solicitor for the Lessee |
|
/s/ Siti Zennifa Rahim
|
|||
|
SITI ZENNIFA RAHIM
|
|||
|
Solicitor for the Lessor |
|
/s/ Lyn Wee Soon Li | |||
|
|
|||
|
Solicitor for the Lessee |
Note: | This portion shall be printed or typed on the reverse side of the last page of the application. |
(A) | DESCRIPTION OF LAND: |
CT (Sub) | MK | TS | Lot No | Property Address | ||||||||||||||
Vol | Fol | |||||||||||||||||
570
|
138 | 19 | | 2134N | Whole | |||||||||||||
|
||||||||||||||||||
|
l Yishun Avenue 7 | |||||||||||||||||
|
Singapore 768923 |
(C) | LESSOR |
ID/Co. regn no: | ||
|
||
Name:
|
HOUSING AND DEVELOPMENT BOARD | |
|
||
Address:
|
||
(Within Singapore for
service of Notice)
|
HDB Centre, 3451 Jalan Bukit Merah,
Singapore 159459 |
AND | ||
(D) | LESSEE |
ID/Co, no: | 199903281G | |
|
||
Name:
|
AGIUENT TECHNOLOGIES SINGAPORE PTE LTD | |
|
||
Address:
(Within Singapore for service of Notice) |
9 Temesek Boulevand #09-03 Suntec City Tower 2
Singapore 038989 |
1. | To delete clause 1 (5) of the Lease and substitute with the following: | ||
Not to use or to permit or suffer the said land or any building thereon or any part of the said land and building thereof to be used otherwise than for manufacturing of semiconductor products and components as well as test and assembly of test and measurement instruments except with the consent in writing of the Lessor and subject to the approval of the competent authority appointed under Section 5 of the Planning Act (Cap. 232). The Lessee shall confine all activities within the boundary of the said land. For the avoidance of doubt, the Lessee shall not place any articles and goods on the common area outside the boundary of the said land. | |||
2. | To pay all costs disbursement fees and charges legal or otherwise including the Lessors cost in the preparation of this Variation of Lease and any future documents, deeds, supplementary or collateral or in any way relating to this Lease. | ||
3. | Save as herein varied, the terms of the Lease shall be binding and in full force and effect in all respects. |
(E) | DATE OF VARIATION OF LEASE: 15 January 2002 | |
(F) | EXECUTION BY LESSOR |
|
The Common Seal of HOUSING
AND DEVELOPMENT BOARD was hereunto affixed in the presence of: |
)
) ) ) |
/s/ David Wong | ||||||
|
MEMBER | |||||
|
Col(NS) David Wong | |||||
|
||||||
/s/ Hemani Weerasuriya | ||||||
|
OFFICER | |||||
|
HEMANI WEERASURIYA |
/s/ILLEGIBLE | ||||
DIRECTOR | ||||
/s/ ILLEGIBLE | ||||
SECRETARY | ||||
(H) | CERTIFICATE OF CORRECTNESS: | |
I, the Solicitor for the Lessor hereby certify that this instrument is correct for the purposes of the Land Titles Act and that I have a Practising Certificate issued on 1 April 2001. |
TEH MUI KIM | ||||
/s/ Teh Mui Kim | ||||
NAME & SIGNATURE OF SOLICITOR FOR THE LESSOR | ||||
CHAI ELSA | ||||
/s/ Chai Elsa | ||||
NAME & SIGNATURE OF SOLICITOR FOR THE LESSEE | ||||
CT | MK | TS | Lot No | Property Address | ||||||||||
Vol | Fol | |||||||||||||
437
|
144 | 19 | | 1975P | Whole | |||||||||
|
||||||||||||||
|
1 Yishun Avenue 7 | |||||||||||||
|
Singapore 768923 |
ID/Co regn.no: | NA | |
Name:
|
HOUSING AND DEVELOPMENT BOARD | |
|
||
Address:
|
HDB Centre, 3451 Jalan Bukit Merah, | |
(Within Singapore for
|
Singapore 159459 | |
service of Notice)
|
Co. Regn No:
|
1986024312 | |
|
||
Name:
|
COMPAQ ASIA PTE LTD | |
|
||
Place of incorporation:
|
Singapore | |
|
||
Address:
|
1 Temasek Avenue #27-01 | |
(Within Singapore for
|
Millenia Tower | |
service of Notice)
|
Singapore 039192 |
|
|||||
|
Stamp Duty Cert Attached | ||||
|
|||||
|
(1)
|
(a) | To pay the yearly rent of Dollars One Hundred and Fourteen Thousand Seven Hundred and Twenty-two ($114.722.00) calculated at the rate of Dollars Thirty-seven and Cents Sixty ($37.60) per square metre per annum from the 1 st day of June 1994 which rate shall be subject to revision on the 1 st day of June 1995, and thereafter annually on the 1 st day of June of each succeeding year. The revision on the 1 st day of June 1995 and each subsequent annual revision shall be subject to a rate based on the market rent on the date of such revision and determined in the manner following but so that the increase shall not exceed 7.6% of the yearly rent of each immediately preceding year PROVIDED THAT from the 1 st day of January 1999 to the 31 st day of May 2001, the Lessee shall pay yearly rent at the prevailing market rate as at 1 st January 1899 And PROVIDED ALSO THAT the yearly rent payable from the 1 st day of June 2001 and for each succeeding year thereafter shall be subject to revision and shall be a the rate based on the market rent on the date of such revision determined in the manner following but so that the increase shall not exceed 5.5% of the yearly rent of each immediately preceding year. The market rent in this context shall mean the rent per square metre per annum of the said land excluding the buildings and other structures erected thereon and shall be determined by the Lessor on or about the dates mentioned herein (and payable retrospectively with effect from the dates mentioned herein if determined after the dates mentioned herein) and the determination of the Lessor as to the market rent shall be final and conclusive. In the event the gross plot ratio of the buildings and structures on the said land |
3
|
is less than 1.0, the Lessor shall be entitled to impose and the Lessee shall pay the Lessor additional yearly rent amounting to 10% of the yearly rent hereby reserved as aforesaid, which additional yearly rent is not however to be taken into account as part of the yearly rent, so that the increase in yearly rent shall not exceed 5.5% of the yearly rent (excluding additional yearly rent) for each immediately preceding year; |
(b) | The yearly rent aforesaid shall be paid quarterly in advance without deductions and without demand from the 1 st day of June 1994 at the office of the Lessor or such other office as the Lessor may designate; |
(2) | To pay interest at the rate of 8.5% per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or other outstanding Sums due and payable under the Lease from the due dates thereof until payment in full is received by the Lessor; | |
(3) | At the termination of the said term or at the earlier determination thereof to yield up to the Lessor the said land together with all buildings, structures and fixtures therein in good and tenantable repair; . | |
(4) | Not to demise, transfer, assign, mortgage, let, sublet, underlet, license or part with the possession of the said land or any part thereof in whatsoever manner and not to effect any form of reconstruction howsoever brought about including any form of amalgamation or merger with or takeover by another company, firm or body or party, without first obtaining the consent of the Lessor in writing, Section 17 of the Conveyancing Law of Property Act (Chapter 61) shall not apply. Any consent, if granted by the Lessor shall be given on such terms and conditions as the Lessor may in its entire and unfettered discretion deem fit to impose and shall include:- |
(a) | full revision of the rental to the prevailing market rate from the date of assignment; | ||
(b) | payment of such administration fee as determined by the Lessor; |
(5) | Not to use or to permit or suffer the said land or the building thereon or any part of the said land and building thereof to be used otherwise than as for the assembly of computer parts subject to the approval of the Competent Authority appointed under Section 3 of the Planning Act; | |
(6) | Not to use the said land or any part thereof for any illegal or immoral purposes; | |
(7) | Not to erect permit or suffer to be carried out any construction of chimneys or ducts of any kind whatsoever in or at any part of the building for the purpose of discharging smoke gas fume or any other substance connected directly or indirectly with the manufacturing processes; | |
(8) | Not without the consent in writing of the Lessor to affix or exhibit to erect or paint or permit or suffer to be affixed or exhibited or erected or painted on or upon any part of the exterior of the demised premises or of the external walls or |
4
rails or fences thereof any nameplate signboard placard poster or other advertisement or hoarding; | ||
(9) | To make reasonable provision against and be responsible for all loss injury or damage to any person or property including that of the Lessor for which the Lessee may be held liable arising out of or in connection with the occupation and use of the said land and to indemnify the Lessor against all proceedings claims costs and expenses which he may incur or for which he may be held liable as a result of any act neglect or default of the Lessee its servants contractors or agents; | |
(10) | Not to effect a change of name without the prior consent in writing of the Lessor PROVIDED THAT on every change of name the Lessee shall pay to the Lessor a fee to be specified by the Lessor in relation to such consent; | |
(11) | Not to install and/or use any electrical installations, machines or apparatus that may cause or causes heavy power surge, high frequency voltage and current, air borne noise, vibration or any electrical or mechanical interference or disturbance whatsoever which may prevent or prevents in any way the service or use of any communication system or affects the operation of other equipment, installations, machinery, apparatus or plants of other Lessees and in connection therewith, to allow the Lessor or any authorised persons to inspect at all reasonable times, such installations, machines or apparatus in the said land to determine the source of the interference or disturbance and thereupon, to take suitable measures, at the Lessees own expense, to eliminate or reduce such interference or disturbance to the Lessors satisfaction, if it is found by the Lessor or such authorised person that the Lessees electrical installations, machines or apparatus is causing or contributing to the said interference or disturbance; | |
(12) | To indemnify the Lessor against any claims, proceedings, action, losses, penalties, damages, expenses, costs, demands which may arise in connection with Clause 1(11) above; | |
(13) | To make good and sufficient provision for the safe and efficient disposal of all waste including but not limited to pollutants generated at the said land to the requirements and satisfaction of the Lessor and other relevant Government authorities PROVIDED THAT in the event of any default by the Lessee under this covenant the Lessor may carry out such remedial measures as it thinks necessary and all costs and expenses incurred thereby shall be recoverable forthwith from the Lessee as a debt; | |
(14) | To pay and to indemnify the Lessor against Goods and Services Tax or any other taxes levies charges whatsoever chargeable in respect of any yearly rent or any sums payable to the Lessor or any moneys received or receivable by the Lessor or any moneys paid or costs or expenses incurred by the Lessor or any other matters under or relating to these presents and the Lessee shall pay to the Lessor on demand a sum equivalent to the amount of such Goods and Services Tax or other taxes levies or charges; |
5
(15) | To pay all charges of the Public Utilities Board and all other relevant competent authorities for the supply of water gas sanitation or electric light or power at any time hereafter during the said term charged or imposed by the Pubic Utilities Board and all other relevant competent authorities in respect of the said land and the buildings thereon. |
2. | The area of the said land (hereinafter referred to as the said area) shall be subject to Government survey or re-survey. | |
(1) | if upon final survey, the said area is found to differ from the final surveyed area within ± 1% of the said area, the final surveyed area will be adopted for the lease of the said land, but the rent shall not be adjusted. Any rental revision subsequent to the final survey shall be calculated based on the final surveyed area. | |
(2) | if the difference between the said area and the final surveyed area exceeds the ±1% margin, the final surveyed area will be adopted for the lease of the said land and: |
(a) | if the final surveyed area is greater than the said area, the Lessee shall at the request and absolute discretion of the Lessor pay to the Lessor additional rent for the additional area; | ||
(b) | if the final surveyed area is less than the said area, the Lessor shall credit the excess rent paid by the Lessee to the account of the Lessee towards payment of the rent. | ||
The additional rent payable or to be credited in either instance will be computed at the same rate as the rent payable under the terms of this Lease. |
3. | To perform, observe and be bound by: | |
(1) | the covenants, conditions and powers implied by law in instruments of lease (or to such of them as are not expressly negatived or modified by this instrument or the Memorandum of Lease hereinafter referred to); and | |
(2) | the covenants and conditions set forth in the Memorandum of Lease filed in the Singapore Land Registry and numbered as ML/24 all of which terms and conditions shall form part of this instrument as if fully set out herein and shall apply hereto insofar as they are not expressly negatived or modified by this Instrument. |
6
(1) | There be no existing breach(es) or non-observance(s) of any of the covenants and conditions herein contained on the part of the Lessee to be observed or performed; | |
(2) | The rental payable for the further term shall be as set out hereunder:- |
(a) | The rent for the first year of the further term commencing on the 1 st day of June 2018 shall be calculated at the rate based on the market rent of the said land at the commencement of the further term. Thereafter the yearly rent shall be subject to revision every year commencing on the 1 st day of June 2019 to the rate based on the market rent of the said land on the date of each respective revision but so that the increase shall not exceed 5.5% of the yearly rent for the year immediately preceding the date of revision. In the event the gross plot ratio of the buildings and structures on the said land is less than 1.0, the Lessor shall be entitled to impose and the Lessee shall pay the Lessor additional yearly rent amounting to 10% of the yearly rent hereby reserved as aforesaid, which additional yearly rent is not however to be taken into account as part of the yearly rent, so that the increase in yearly rent shall not exceed 5.5% of the yearly rent (excluding additional yearly rent) for each immediately preceding year. | ||
(b) | The market rent in this context shall mean the rent per square metre per annum of the said land excluding the buildings and other structures erected thereon and shall be determined by the Lessor on or about the dates mentioned herein (and payable retrospectively with effect from the dates mentioned herein if determined after the dates mentioned herein) and the determination of the Lessor as to the market rent shall be final and conclusive. | ||
(c) | The yearly rent aforesaid shall be paid quarterly in advance without deductions and without demand from the 1 st day of June 2018 at the office of the Lessor or such other office as the Lessor may designate. | ||
(d) | Any demise, transfer, assignment or parting of possession of the said land or any part thereof by the Lessee in whatsoever manner within 5 years of the commencement of the further term will be approved by the Lessor only upon payment by the Lessee of a fee (hereinafter called the additional fee) which shall be equivalent to the value of the buildings and there shall also be a full revision of the rental to the prevailing market rate from the date of assignment and payment of such administrative fee as determined by the Lessor as provided under Clause 1(4) herein contained. The value of the building shall be determined by the Lessor alone and the Lessors assessment shall be final and conclusive and not be subject or open to review by the Lessee. PROVIDED THAT the Lessee shall not be required to pay the additional fee for any demise, transfer, assignment or parting with possession of |
7
the said land or any part thereof by the Lessee in whatsoever manner after the aforesaid 5 years period; | |||
(e) | All costs expenses charges legal or otherwise including stamp duty and the Lessors legal costs of or connected with the preparation completion and registration of the Lease for the further term of 30 years shall be borne by the Lessee. |
(3) | The interest chargeable shall be at the rate of 8.5% per annum or such higher rate as may be determined from time to time by the Lessor in respect of any arrears of rent or other outstanding sums due and payable under the Lease from the due dates thereof until payment in full is received by the Lessor. |
8
)
)
)
)
|
||
|
/s/ Quek Sze Swee | |||
|
||||
|
MEMBER Mr Quek Sze Swee | |||
|
||||
|
/s/ JACQUELINE LOW LI LING | |||
|
||||
30/10/2000
|
OFFICER JACQUELINE LOW LI LING |
The Common Seal of
|
) | |||||||
COMPAQ ASIA PTE LTD
|
) | |||||||
was hereunto affixed in the
|
) | |||||||
presence of:
|
) |
|
||
|
/s/ Lee Kheng Hock | |||
|
||||
|
DIRECTOR | |||
|
||||
|
/s/ EDMUND LEOW | |||
|
||||
|
SECRETARY |
9
|
/s/ Lyn Wee Soon Li | |||
|
||||
|
LYN WEE SOON LI | |||
|
Solicitor for the Lessee |
|
/s/ Lyn Wee Soon Li | |||
|
||||
|
LYN WEE SOON LI | |||
|
Solicitor for the Lessee |
|
/s/ Siti Zennifa Rahim | |||
|
||||
|
Solicitor for the Lessor |
|
/s/ Lyn Wee Soon Li | |||
|
||||
|
LYN WEE SOON LI | |||
|
Solicitor for the Lessee |
THE LAND TITLES ACT
VL 1 Ver
1
VARIATION OF LEASE
(A)
DESCRIPTION OF LAND:
CT (Sub)
Vol
Fol
MK
TS
Lot No
Property Address
35
19
1975P
Whole
1 Yishun Avenue 7
Singapore 768923
(B) | REGISTERED LEASE NO: I/33160P |
(C) | LESSOR |
ID/Co. regn no:
|
- | |
|
||
Name:
|
HOUSING AND DEVELOPMENT BOARD | |
|
||
Address:
|
||
(Within
Singapore for service of
Notice)
|
HDB Centre, 3451 Jalan Bukit Merah, Singapore 159459 |
(D) |
AND
LESSEE |
ID/Co. no:
|
19990328IG | |
|
||
Name:
|
AGILENT TECHNOLOGIES SINGAPORE PTE LTD | |
|
||
Address:
|
||
(Within Singapore
for service of Notice)
|
9 Tenseek Boulevand #09-03 Sontec City Tower 2 Singapore 038969 |
2
1. | To delete clause 1(5) of the Lease and substitute with the following: | ||
Not to use or to permit or suffer the said land or any building thereon or any part of the said land and building thereof to be used otherwise than for manufacturing of semiconductor products and components as well as test and assembly of test and measurement instruments except with the consent in writing of the Lessor and subject to the approval of the competent authority appointed under Section 5 of the Planning Act (Cap. 232). The Lessee shall confine all activities within the boundary of the said land. For the avoidance of doubt, the Lessee shall not place any articles and goods on the common area outside the boundary of the said land. | |||
2. | To pay all costs disbursement fees and charges legal or otherwise including the Lessors cost in the preparation of this Variation of Lease and any future documents, deeds, supplementary or collateral or in any way relating to this Lease. | ||
3. | Save as herein varied, the terms of the Lease shall be binding and in full force and effect in all respects. |
(E) | DATE OF VARIATION OF LEASE : 15 January 2002 | |
(F) | EXECUTION BY LESSOR |
The Common Seal of HOUSING
)
AND DEVELOPMENT BOARD
)
was hereunto affixed in the
)
presence of:
)
|
||
|
|
/s/ Mr Edmund Koh | |||
|
||||
|
MEMBER Mr Edmund Koh | |||
|
||||
|
/s/ Jacqueline Low Li Ling | |||
|
||||
|
OFFICER JACQUELINE LOW LI LING |
3
|
||
|
|
/s/ [ILLEGIBLE] | |||
|
||||
|
DIRECTOR | |||
|
||||
|
/s/ [ILLEGIBLE] | |||
|
||||
|
SECRETARY |
(H) | CERTIFICATE OF CORRECTNESS: | |
I, the Solicitor for the Lessor hereby certify that this instrument is correct for the purposes of the Land Titles Act. and that I have a Practising Certificate issued on 1 April 2001. |
|
/s/ Teh Mui Kim | |||
|
||||
|
TEH MUI KIM | |||
|
NAME & SIGNATURE OF SOLICITOR FOR THE LESSOR |
I, the Solicitor for the Lessee hereby certify that this instrument is correct for the purposes of the Land Titles Act and that I have a Practising Certificate issued on 1 st April 2001. |
|
/s/ Chai Elsa | |||
|
||||
|
CHAI ELSA | |||
|
NAME & SIGNATURE OF SOLICITOR FOR THE LESSEE |
October 24, 2005
Agilent Technologies (Malaysia) Sdn. Bhd., a Malaysian
corporation/company
Agilent Technologies (Malaysia) Sdn. Bhd.
Bayan Lepas Free Industrial Zone
11900 Bayan Lepas, Penang, Malaysia
Attention: Workplace Services Manager
Avago Technologies (Malaysia) Sdn. Bhd., a Malaysian
corporation/company
Avago Technologies (Malaysia) Sdn. Bhd.
Bayan Lepas Free Industrial Zone
11900 Bayan Lepas, Penang, Malaysia
Attention: Kong-Beng Song
Those certain premises located at Lepas Free Industrial Zone,
11900 Bayan Lepas, Penang, Malaysia, as more particularly
described on the site map attached hereto as
Exhibit A
(the
Site Map), consisting of the Premises Land (as defined in the
Tenancy Agreement) together with all Improvements (as defined in
the Tenancy Agreement) from time to time located therein which
includes, without limitation, Buildings 1, 2 and 3 as identified
on the Site Map (which buildings are deemed to contain
approximately 401,000 gross square feet or 37,253 gross square
meters), and Appurtenant Easements and Rights (as defined in the
Tenancy Agreement).
The period of time commencing on the Commencement Date and
ending at midnight on the Final Expiration Date, unless sooner
terminated as provided in the Tenancy Agreement.
All lawful purposes.
Landlord
:
Agilent Technologies (Malaysia) Sdn. Bhd.
Bayan Lepas Free Industrial Zone
11900 Bayan Lepas, Penang
Malaysia
|
Attention: Mr. Seah Teoh-Teh | |
|
Facsimile: +65 6822-8407 | |
|
||
|
With copy to : | |
|
||
|
Agilent Technologies, Inc. | |
|
395 Page Mill Road | |
|
Palo Alto, CA 94306 | |
|
United States of America | |
|
Attention: General Counsel | |
|
Facsimile: +1 650 752 5742 | |
|
||
|
Tenant : | |
|
||
|
Avago Technologies Pte. Limited | |
|
1 Yishun Avenue 7 | |
|
Singapore 768923 | |
|
Attention: Bian-Ee Tan | |
|
||
|
With copies to : | |
|
||
|
Avago Technologies (Malaysia) Sdn. Bhd. | |
|
Bayan Lepas Free Industrial Zone | |
|
11900 Bayan Lepas, Penang | |
|
Malaysia | |
|
Attention: Kong-Beng Song | |
|
||
|
Kohlberg Kravis Roberts & Co. | |
|
9 West 57th St., Ste. 4200 | |
|
New York, NY 10019 | |
|
United States of America | |
|
Attention: William Cornog |
3
1
1.1 | APA : shall have the meaning ascribed in the Recitals. | ||
1.2 | Appropriate Authorities : means any governmental, semi or quasi-governmental and/or statutory departments, agencies and bodies including but not limited to the Penang Municipal Council, the Penang Development Corporation, the Penang State Authority and the Penang Land Office. | ||
1.3 | Approvals : means the following approvals of the Appropriate Authorities for: |
(a) | the conversion of HSD 18825 PT 1687 Mukim 12 Daerah Barat Daya, Penang into final title; | ||
(b) | the subdivision of the master title of the Land pursuant to the terms of this Tenancy Agreement and the Related Agreements; | ||
(c) | the transfer of the Premises Land to Tenant; and | ||
(d) | any other conditions imposed by the Appropriate Authorities from time to time and/or as a condition to issuance of any Approvals. |
1.4 | Appurtenant Easements and Rights : means any and all rights, benefits, easements, licenses, permits and similar interests whether personal to Tenant, its successors and assigns or which run with the Premises Land pursuant to any of the Related Agreements. | ||
1.5 | Closing : shall have the meaning ascribed in the LATA. 1.6 Closing Date : shall have the meaning ascribed in the LATA. | ||
1.7 | Commencement Date : means the Closing Date. | ||
1.8 | Common Area : means those areas and facilities within each of the Premises Land and Landlords Remaining Parcel as Landlord and Tenant shall designate as common areas under the Related Agreements. | ||
1.9 | Complex : means that real estate development more particularly situated on the Land, consisting as of the date hereof of eight (8) buildings (which in the aggregate are deemed to contain approximately 1,232,134 gross square feet or 114,465 gross square meters), a sports complex, automobile parking areas and bus bays and other ancillary Improvements of which the Premises are a part, as more particularly shown and described on the site map attached as Exhibit A hereto and made a part hereof (the Site Map ). |
2
1.10 | Coordinating Committee : shall have the meaning ascribed in Section 14.1. | ||
1.11 | Damages : means any and all losses, settlements, expenses, liabilities, obligations, claims, damages (including any governmental penalty or costs of investigation, clean-up and remediation), deficiencies, royalties, interest, costs and expenses (including reasonable attorneys fees and all other expenses reasonably incurred in investigating, preparing or defending any litigation or proceeding, commenced or threatened incident to the successful enforcement of this Agreement), the extent of which are recoverable under Law. | ||
1.12 | Date of Completion of Premises Transfer : means the date of registration of Tenant as the registered proprietor of the leasehold interest over the Premises Land pursuant to the NLC. | ||
1.13 | Endorsement of Tenancy : means to endorse Tenants interest over the Land pursuant to this Tenancy Agreement on the registered document of title of the Land with the Penang Land Office pursuant to Section 316 of the NLC upon execution of this Tenancy Agreement. | ||
1.14 | Extension Term : shall have the meaning ascribed in Section 3. | ||
1.15 | Final Expiration Date : means the earlier to occur of (i) June 27, 2045 (subject to extension from time to time, but without any obligation on Landlord to obtain such extension if and as the underlying land grant from the Penang Development Corporation which is inclusive of the Premises Land is included), or (ii) the Date of Completion of Premises Transfer. | ||
1.16 | Improvements : means all buildings, structures, improvements, additions, alterations, and fixtures installed in, on or about the Land, Premises Land or Landlords Remaining Parcel, as applicable, including, without limitation, buildings, landscaping, parking areas, bus bays and roads. | ||
1.17 | Initial Tenancy Term : shall have the meaning ascribed in Section 3. | ||
1.18 | Land : means the two pieces of land bearing title details HSD 18825 PT 1687 and PN 2826 Lot 4585, both of Mukim 12 Daerah Barat Daya, Penang on which the Complex is situated together with all conditions attached to the issue document of title. | ||
1.19 | Landlord : shall have the meaning ascribed in the introductory paragraph. | ||
1.20 | Landlords Agents : means the agents, employees, sublandlords, if any, and assigns (and their respective agents and employees) of Landlord. | ||
1.21 | Landlords Remaining Parcel : means that portion of the Land not constituting part of the Premises Land and as set forth on the Site Map. | ||
1.22 | LATA : shall have the meaning ascribed in the Recitals. |
3
1.23 | Law : means any present or future judicial decision, statute, constitution, ordinance, resolution, regulation, rule or administrative order, of any local or state governmental authority of Malaysia having jurisdiction over the Parties, the Premises, Landlords Remaining Parcel or the Complex. | ||
1.24 | Lien : means any lien, charge, claim, agreement to sell, pledge, security interest, judgment, conditional sale agreement or other title retention agreement, finance lease, mortgage, security agreement, right of first refusal or offer (or other similar right), option, restriction, tenancy, license, covenant, encroachment (whether upon any real property or by any improvement situated on any real property onto any adjoining real property or onto any easement area), right of way, easement, title defect or other encumbrance or title matter. | ||
1.25 | Liquidator : means a person who conducts the winding-up of a company and includes Official Receiver and qualified insolvency practitioner appointed by the Malaysian Court. | ||
1.26 | NLC : means the Malaysian National Land Code, 1965. | ||
1.27 | Official Receiver : means the Official Assignee, Deputy Official Assignee, Senior Assistant Official Assignee, Bankruptcy Officer and any other officer appointed under the Malaysian Bankruptcy Act 1967. | ||
1.28 | Permitted Use : means all lawful purposes under applicable Law. | ||
1.29 | Premises : means those certain premises located at Lepas Free Industrial Zone, 11900 Bayan Lepas, Penang, Malaysia, as more particularly described on the Site Map, constituting the Premises Land together with all Improvements from time to time located therein which includes, without limitation, Buildings 1, 2 and 3 as identified on the Site Map (which are deemed to contain approximately 401,000 gross square feet or 37,253 gross square meters) and Appurtenant Easements and Rights. The Site Map also depicts the Improvements located upon the Premises Land as of the Closing Date. | ||
1.30 | Premises Land : means that portion of the Land described and shown on the Site Map. | ||
1.31 | Related Agreements : means (a) the SPA, and (b) the SUA, as the same may be amended from time to time. | ||
1.32 | Ringgit : means the legal currency of Malaysia. | ||
1.33 | SPA : means the sale and purchase agreement to be entered into between Landlord and Tenant prior to the Closing Date, in form and substance satisfactory to the Parties. Upon execution thereof, such sale and purchase agreement shall be attached as Exhibit B to this Agreement. |
4
1.34 | SUA : means the subdivision and use agreement to be entered into between Landlord and Tenant prior to the Closing Date, in form and substance satisfactory to the Parties. Upon execution thereof, such subdivision and use agreement shall be attached as Exhibit C to this Agreement. | ||
1.35 | Tenancy Agreement or Agreement : means cumulatively this printed tenancy agreement and exhibits attached or incorporated by reference and the Related Agreements, all of which are hereby deemed incorporated herein by this reference, all as may be amended in writing in accordance herewith or therewith from time to time. | ||
1.36 | Tenancy Approval : means the written approval of the Appropriate Authorities for the grant of the tenancy by Landlord to Tenant pursuant to the terms and conditions of this Tenancy Agreement. The Parties acknowledge and agree that a written notification from the Appropriate Authorities to the effect that no such approval is required shall be deemed sufficient for the purposes hereof. | ||
1.37 | Tenancy Term : means the period of the Initial Tenancy Term commencing on the Commencement Date and shall include all Extension Terms, as the case may be, unless sooner terminated as provided herein. | ||
1.38 | Tenant : shall have the meaning ascribed in the introductory paragraph. | ||
1.39 | Tenants Agents : means the agents, employees, subtenants and assigns (and their respective agents and employees) of Tenant. |
4.1 | The Parties acknowledge and agree that rent of Ringgit One (RM1.00) per month is due and payable by Tenant to Landlord in advance for the rental of the Premises pursuant to this Tenancy Agreement. The Parties further acknowledge and agree that the rent for the Tenancy Term has been paid by Tenant to Landlord simultaneously with the execution of this Tenancy Agreement. | ||
4.2 | Within thirty (30) days following Tenants receipt of evidence of Landlords payment of the following assessments (together with a copy of the original governmental invoice and Landlords calculation of Tenants share pursuant |
5
hereto), Tenant shall reimburse Landlord for its proportionate share of the following assessments: |
(a) | Quit Rent assessed annually by the Penang Land Office on land, Tenants share shall be based on the relative square footage of the Premises Land to the square footage of the Land being assessed, which as of the date hereof is US$71,000 in the aggregate per annum for the Land; and | ||
(b) | Local Assessment assessed semi-annually by the Penang Municipal Council on buildings, Tenants share shall be the portion of the Local Assessment related to the buildings on the Premises Land based on the value ascertained by the Penang Municipal Council, which as of the date hereof is US$175,000 in the aggregate per annum for the Land. |
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10.1 | Indemnification of Landlord : To the fullest extent allowed by Law, Tenant shall indemnify, defend, protect and hold harmless Landlord and Landlords Agents from all liability, Damages, causes of action and/or judgments arising howsoever including by reason of any death, bodily injury, personal injury or property damage resulting from (i) any cause or causes whatsoever (except to the extent caused by the willful misconduct or negligence of Landlord) occurring in or about or resulting from an occurrence in or about the Premises during the Tenancy Term resulting from the negligence or willful misconduct of Tenant or Tenants Agents, (ii) any breach of this Tenancy Agreement by Tenant, or (iii) third Party claims of a nature which would ordinarily be covered by standard or customary policies of general liability insurance regardless of whether such insurance is maintained by Tenant with respect to the Premises. The provisions of this Section 10.1 shall survive the expiration or sooner termination of this Tenancy Agreement. Each of the Parties acknowledges and agrees that a remedy for a breach by the other Party of this Agreement shall be, subject to the requirements of Section 14.1, to bring a claim to recover damages and to seek other appropriate equitable relief, other than termination of this Agreement or Tenants right to occupy and use the Premises. | ||
10.2 | Indemnification of Tenant : To the fullest extent allowed by Law, Landlord shall indemnify, defend, protect and hold harmless Tenant and Tenants Agents from all liability, Damages, causes of action and/or judgments arising howsoever including by reason of any death, bodily injury, personal injury or property damage resulting from (i) any cause or causes whatsoever (except to the extent caused by the willful misconduct or negligence of Tenant) occurring in or about or resulting from an occurrence in or about the Premises during or prior to commencement of the Tenancy Term resulting from the negligence or willful misconduct of Landlord or Landlords Agents, or (ii) any breach of this Tenancy Agreement by Landlord. The provisions of this Section 10.2 shall survive the expiration or sooner termination of this Tenancy Agreement. Each of the Parties acknowledges and agrees that as remedy for a breach by the other Party of this Agreement shall be, subject to the requirements of Section 14.1, to bring a claim to recover damages and to seek other appropriate equitable relief, other than termination of this Agreement or Tenants right to occupy and use the Premises. |
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11.1 | Tenant and Landlord hereby agree that, subject to the relevant Approvals being obtained, the Land shall be subdivided into the Premises Land and Landlords Remaining Parcel and, upon such subdivision of the Premises Land and the legal transfer of the Premises Land and Improvements to Tenant or its successors or assigns pursuant to the SPA, this Tenancy Agreement, BUT NOT ANY OF THE RELATED AGREEMENTS WHICH ARE INCORPORATED HEREIN BY REFERENCE, shall automatically terminate as of the Date of Completion of Premises Transfer. For the avoidance of doubt, a termination of this Tenancy Agreement under this Section 11.1 shall be deemed a termination without default on either Party but shall not terminate, extinguish or otherwise deemed a waiver of either Partys respective rights hereunder to the extent that this Agreement expressly provides for the survival of such rights. | ||
11.2 | In the event that the Date of Completion of Premises Transfer has not occurred by the expiration of the thirtieth (30th) calendar month of the Initial Tenancy Term, then anytime thereafter, Tenant shall have the right, in its sole discretion, to require Landlord (i) to convert this Tenancy Agreement into a registerable lease with a lease term through to the Final Expiration Date and otherwise upon the same terms and conditions of this Tenancy Agreement (and any Related Agreements), in each case to the extent applicable under Law or as the Parties may otherwise agree, (ii) to obtain the requisite Approvals from the Appropriate Authorities for such lease, and (iii) to execute such documents so as to enable Tenant to register Tenants lease rights pursuant to the NLC, all at Landlords sole cost and expense (it being understood and agreed that the foregoing costs and expenses will include the reasonable fees and expenses of counsel, which consist solely of the fees and expenses of Malaysian counsel payable in accordance with applicable Malaysia regulations relating to solicitors fees in real property engagements). Upon the commencement of the Lease, this Tenancy Agreement, BUT NOT ANY OF THE RELATED AGREEMENTS WHICH ARE INCORPORATED HEREIN BY REFERENCE, shall automatically terminate. For the avoidance of doubt, a termination of this Tenancy Agreement under this Section 11.2 shall be deemed a termination without default on either Party but shall not terminate, extinguish or otherwise be deemed a waiver of either Partys respective rights hereunder to the extent that this Agreement expressly provides for the survival of such rights. | ||
11.3 | Landlord shall have no right, and hereby expressly waives any statutory, regulatory or contractual, express or implied right, to terminate this Tenancy Agreement during the Tenancy Term, for any reason or cause. |
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13.1 | Landlord shall notify the Appropriate Authorities or such other acquiring authority, of the interest of Tenant in the Premises and the terms of this Agreement; | ||
13.2 | Landlord shall in all matters concerning such acquisition do all acts and things as may be reasonably requested by Tenant (at the cost and expense of Tenant) for acquiring the best compensation payable; and | ||
13.3 | any compensation payable under such acquisition shall belong to Tenant as and when the same shall be paid, provided that any such compensation paid to or received by Landlord shall be retained and held on trust by Landlord on behalf of Tenant and Landlord shall pay such sums to Tenant within fourteen (14) days from receipt of such sums. |
14.1 | Coordinating Committee : |
(a) | Within thirty (30) days after the date hereof, the Parties shall establish a coordinating committee (the Coordinating Committee ) which shall consist of four (4) members, two (2) of which shall be appointed by Landlord and two (2) of which shall be appointed by Tenant. Each Party, upon prior written notice to the other Party, may from time to time remove or replace any member appointed by such Party. |
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(b) | Except as the Parties may otherwise agree in writing, the Coordinating Committee shall have the power and the responsibility under this Agreement to: |
(i) | act as a forum for the liason between the Parties with respect to the day-to-day implementation of this Agreement; | ||
(ii) | subject to Section 14.2, seek to resolve disputes; and | ||
(iii) | undertake such other functions as the Parties may agree in writing. |
14.2 | Disputes and Governing Law : |
(a) | This Agreement shall be governed by and construed in accordance with the laws of Malaysia, without reference to the choice of law principles thereof. | ||
(b) | Any Party seeking the resolution of a dispute arising under this Agreement must provide written notice of such dispute to the other Party, which notice shall describe the nature of such dispute. All such disputes shall be referred initially to the Coordinating Committee for resolution. Decisions of the Coordinating Committee under this Section 14.2 shall be made by unanimous vote of all members and shall be final and legally binding on the Parties. If a dispute is resolved by the Coordinating Committee, then the terms of the resolution and settlement of such dispute shall be set forth in writing and signed by both Parties. In the event that the Coordinating Committee does not resolve a dispute within thirty (30) days of the submission thereof, such dispute shall be resolved in accordance with Section 14.2(c). Notwithstanding the foregoing, Landlord and Tenant shall each continue to perform their obligations under this Agreement during the pendency of such dispute in accordance with this Agreement. | ||
(c) | The Parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the Parties shall be entitled to an injunction to prevent any breach of this Agreement and to enforce specifically the terms and provisions of this Agreement by bringing a relevant action in the courts located in Penang, Malaysia, in addition to any other remedy to which any Party may be entitled at law or in equity. In addition, the Parties agree that any disputes, claims or controversies between the Parties arising out of or relating to this Agreement, whether in contract, tort, equity or otherwise and whether relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement which have not been resolved by the Coordinating Committee shall be submitted to the exclusive jurisdiction of the courts located in Penang, Malaysia. |
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14.3 | Waiver : One Partys consent to or approval of any act by the other Party requiring the first Partys consent or approval shall not be deemed to waive or render unnecessary the first Partys consent to or approval of any subsequent similar act by the other Party. No delay or omission in the exercise of any right or remedy accruing to either Party upon any breach by the other Party under this Tenancy Agreement shall impair such right or remedy or be construed as a waiver of any such breach theretofore or hereafter occurring. The waiver by either Party of any breach of any provision of this Tenancy Agreement shall not be deemed to be a waiver of any subsequent breach of the same or any other provisions herein contained. | ||
14.4 | Prohibition Against Liens : Landlord covenants that so long as this Tenancy Agreement is in effect neither Landlord nor any Landlord Agent shall grant or permit any such Liens with respect to the Premises Land or the Premises, and no Liens shall be granted or permitted with respect to the Complex, the Land or Landlords Remaining Parcel which shall be superior to the rights of Tenant hereunder (including the Related Agreements). | ||
14.5 | Force Majeure : Any prevention, delay, or stoppage due to strikes, lockouts, inclement weather, labor disputes, inability to obtain labor, materials, fuels or reasonable substitutes therefor, governmental restrictions, regulations, controls, action or inaction, civil commotion, fire or other acts of God, and other causes beyond the reasonable control of either Party to perform shall excuse the performance by such Party, for a reasonable period not to exceed the period of any said prevention, delay, or stoppage, of any obligation hereunder. | ||
14.6 | Notices : Any notice required or desired to be given regarding this Tenancy Agreement shall be in writing and shall be personally served, or in lieu of personal service may be given by AR Registered Post or by internationally recognized overnight courier at the addresses for the Parties set forth in the Tenancy Summary to this Tenancy Agreement (or such other addresses as may be specified by a Party hereto giving notice of same to the other Party in accordance with this Section). Personally served notices shall be deemed to have been given when received by the Party, if served by prepaid registered post, such notice shall be deemed to have been given (i) on the seventh business day after such posting, certified and postage prepaid, addressed to the Party to be served at the address set forth in the preceding sentence was posted, and (ii) in all other cases when actually received. | ||
14.7 | Value Added Tax / Goods and Services Tax : As of the date hereof, the Parties acknowledge and agree that no goods and services tax, value added tax or any other like tax ( GST ) has been instituted by any Malaysian governmental authority including the Appropriate Authorities. If, however, any such GST legislation is implemented during the Tenancy Term ( GST Legislation ) and any GST is payable as a consequence of any supply made or deemed to be made or other matter or thing done under or in connection with this Tenancy Agreement by any Party, it is the intent of the Parties that such GST be borne equally by the |
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Parties. In such event, the Party responsible under applicable law for the remittance of such GST (the GST Payor ) shall timely remit to the Appropriate Authority the full GST amount then-owning. Upon presentation to the other party (the GST Non-Payor ) of evidence of such GST assessment and the corresponding remittance by the GST Payor, the GST Non-Payor shall promptly reimburse the GST Payor for fifty percent (50%) of such GST amount (but exclusive of any fine, penalty or interest paid or payable in connection therewith due to a default of the GST Payor). The Parties agree to cooperate with each other in the provision of any information or preparation of any documentation that may be necessary or useful for obtaining any available mitigation, reduction, refund or exemption from GST. The GST Payor further covenants and agrees to use its reasonable efforts to obtain any available mitigation, reduction, refund or exemption from GST and, upon receipt or recovery of any portion of the aforementioned GST remittance, shall promptly pay to the GST Non-Payor of fifty percent (50%) of such recovered amount. For the avoidance of doubt, the Parties agree that any sum payable or amount to be used in the calculation of a sum payable expressed elsewhere in this Agreement has been determined without regard to and does not include amounts to be added on under this clause on account of GST. |
14.8 | Miscellaneous : Time is of the essence with respect to the performance of every provision of this Tenancy Agreement in which time of performance is a factor. This Tenancy Agreement shall, subject to the provisions regarding assignment, apply to and bind the respective heirs, successors, executors, administrators and assigns of Landlord and Tenant. Nothing in this Section is intended to confer personal liability upon the officers or shareholders of Tenant or Landlord. When a Party is required to do something by this Tenancy Agreement, it shall do so at its sole cost and expense without right of reimbursement from the other Party unless specific provision is made therefor. Landlord shall not become or be deemed a partner nor a joint venturer with Tenant by reason of the provisions of this Tenancy Agreement. | ||
14.9 | Landlords Representations, Warranties and Covenants : |
(a) | Landlord hereby represents and warrants to Tenant as follows: (i) Landlord is a corporation duly organized and validly existing under the laws of Malaysia and has full power and authority to own and let the Premises; (ii) Landlord has full corporate power and authority to execute and deliver this Tenancy Agreement; (iii) the execution, delivery and performance by Landlord of this Tenancy Agreement have been duly authorized by all corporate actions on the part of Landlord that are necessary to authorize the execution, delivery and performance by Landlord of this Tenancy Agreement; and (iv) this Tenancy Agreement has been duly executed and delivered by Landlord and, assuming due and valid authorization, execution and delivery hereof by Tenant, is a valid and binding obligation of Landlord, enforceable against Landlord in accordance with its terms except as limited by applicable bankruptcy, |
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insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors rights generally. |
(b) | EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS TENANCY AGREEMENT (INCLUDING THE RELATED AGREEMENTS), THE LATA OR THE APA, NEITHER LANDLORD NOR ANY OTHER PERSON OR ENTITY ACTING ON BEHALF OF LANDLORD, MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED. TO THE EXTENT ANY REPRESENTATION OR WARRANTIES HEREIN ARE INCONSISTENT WITH ANY REPRESENTATIONS OR WARRANTIES IN THE APA, THE APPLICABLE REPRESENTATIONS OR WARRANTIES IN THE APA, SHALL CONTROL. |
14.10 | Tenants Representations, Warranties and Covenants : |
(a) | Tenant hereby represents and warrants to Landlord as follows: (i) Tenant is a corporation duly organized and validly existing under the laws of Malaysia and has full power and authority to carry on its business as heretofore conducted; (ii) Tenant has full corporate power and authority to execute and deliver this Tenancy Agreement; (iii) the execution, delivery and performance by Tenant of this Tenancy Agreement have been duly authorized by all corporate actions on the part of Tenant that are necessary to authorize the execution, delivery and performance by Tenant of this Tenancy Agreement: and (iv) this Tenancy Agreement has been duly executed and delivered by Tenant and, assuming due and valid authorization, execution and delivery hereof by Landlord, is a valid and binding obligation of Tenant, enforceable against Tenant in accordance with its terms except as limited by applicable bankruptcy, insolvency, reorganization, moratorium, fraudulent conveyance and other similar laws of general application affecting enforcement of creditors rights generally. | ||
(b) | EXCEPT FOR THE REPRESENTATIONS AND WARRANTIES CONTAINED IN THIS TENANCY AGREEMENT (INCLUDING THE RELATED AGREEMENTS), THE LATA OR THE APA, NEITHER TENANT NOR ANY OTHER PERSON OR ENTITY ACTING ON BEHALF OF TENANT, MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, TO THE EXTENT ANY REPRESENTATION OR WARRANTIES HEREIN ARE INCONSISTENT WITH ANY REPRESENTATIONS OR WARRANTIES IN THE APA, THE APPLICABLE REPRESENTATIONS OR WARRANTIES IN THE APA SHALL CONTROL. |
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14.11 | Rules of Interpretation : |
(a) | Whenever the words include, includes or including are used in this Tenancy Agreement they shall be deemed to be followed by the words without limitation. | ||
(b) | The words hereof, hereto, herein and herewith and words of similar import shall, unless otherwise stated, be construed to refer to this Tenancy Agreement as a whole and not to any particular provision of this Tenancy Agreement, and article, section, paragraph and exhibit references are to the articles, sections, paragraphs and exhibits of this Tenancy Agreement unless otherwise specified. | ||
(c) | The meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders. Where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning. | ||
(d) | A reference to any Party to this Tenancy Agreement or any other agreement or document shall include such Partys successors and permitted assigns. | ||
(e) | A reference to any legislation or to any provision of any legislation shall include any amendment to, and any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations and statutory instruments issued thereunder or pursuant thereto. | ||
(f) | The Parties have participated jointly in the negotiation and drafting of this Tenancy Agreement. In the event an ambiguity or question of intent or interpretation arises, this Tenancy Agreement shall be construed as if drafted jointly by the Parties, and no presumption or burden of proof shall arise favoring or disfavoring any Party by virtue of the authorship of any provisions of this Tenancy Agreement. | ||
(g) | Headings are for convenience only and do not affect the interpretation of the provisions of this Tenancy Agreement. | ||
(h) | Any Exhibits attached hereto are incorporated herein by reference and shall be considered as part of this Tenancy Agreement. | ||
(i) | The language in all parts of this Tenancy Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against either Landlord or Tenant. | ||
(j) | If any term, condition, stipulation, provision, covenant or undertaking of this Tenancy Agreement is or may become under any written Law, or is found by any court or administrative body of competent jurisdiction to be, |
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illegal, void, invalid, prohibited or unenforceable then: (i) such term, condition, stipulation, provision, covenant or undertaking shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability; (ii) the remaining terms, conditions, stipulations, provisions, covenants or undertaking of this Tenancy Agreement shall remain in full force and effect; and (iii) the Parties shall use their respective best endeavors to negotiate and agree a substitute term, condition, stipulation, provision, covenant or undertaking which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking. In the event that the automatic extensions contemplated by Section 3 of this Tenancy Agreement are not enforceable, the Parties agree to take such action to extend the Initial Tenancy Term as herein provided or to immediately enter into a new tenancy agreement on the same terms and conditions as set forth herein, effective as of the expiration of the Initial Tenancy Term. |
14.12 | Quiet Enjoyment : Landlord shall ensure that Tenant has the right to quietly enjoy the Premises and the rights with respect to the Complex provided in the Related Agreements, without hindrance, molestation or interruption during the Tenancy Term, subject to the terms and conditions of this Tenancy Agreement. | ||
14.13 | Endorsement of Tenancy Agreement : Upon execution of this Tenancy Agreement, Landlord and Tenant shall submit this Tenancy Agreement with the necessary form to the Penang Land Office for Endorsement of Tenancy; provided , however , that Landlord shall promptly furnish and provide all relevant information and documents to Tenant and/or execute such relevant documents as may be required for the submission of the Endorsement of Tenancy. Any amounts required to be paid to the Penang Land Office in connection with such submission shall be paid by Landlord. | ||
14.14 | Entire Agreement : This Tenancy Agreement, together with the APA and the LATA Related Agreements, constitutes the entire agreement between the Parties with respect to the subject matter hereof. Each Party acknowledges that, except as provided in the APA, LATA and the Related Agreements, there are no binding agreements or representations between the Parties except as expressed or described herein or therein. No subsequent change or addition to this Tenancy Agreement shall be binding unless in writing and signed by the Parties hereto. | ||
14.15 | Landlord Insolvency : In the event that Landlord becomes insolvent or is being wound-up or under receivership, it is the intention of the Parties that the Official Receiver or the Liquidator shall manage Landlords property subject to this Agreement and the Related Agreements. | ||
14.16 | Survey : The Parties acknowledge Landlord makes no covenant or warranty as to the exact square footage of any area referenced herein. The Parties further |
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acknowledge that, on or prior to the date hereof, Landlord has commenced a formal survey (the Survey ) of the Land, which will include both the interior and exterior of the Complex and the Premises. Upon completion of the Survey and subject to the final approval of the Parties, such Survey shall be substituted for the Site Map as Exhibit A hereto and the exact square footage of the Complex, the Premises and the specific areas described therein, where applicable, will be deemed to supersede and replace any approximate square footage set forth in this Tenancy Agreement. |
14.17 | Conditional Agreement : Notwithstanding the execution of this Tenancy Agreement by Landlord and Tenant, the Parties agree that the effectiveness of this Agreement is conditional upon: |
(a) | the granting of the Tenancy Approval; | ||
(b) | the execution of the Related Agreements; and | ||
(c) | the occurrence of the Closing pursuant to the APA. |
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Landlord | Tenant | |||||||||
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AGILENT TECHNOLOGIES (MALAYSIA) SDN. BHD., a company organized under the laws of Malaysia | AVAGO TECHNOLOGIES (MALAYSIA) BHD.(formerly known as Jumbo Portfolio Sdn. Bhd.), a company organized under the laws of Malaysia | |||||||||
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By:
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/s/ Rob Young | By: | /s/ Kenneth Y. Hao | |||||||
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Name: Rob Young | Name: Kenneth Y. Hao | |||||||||
Title: Controller | Title: Director |
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1. | Landlord and Tenant agree that in return for Landlord agreeing to let the Premises to Tenant pursuant to the terms and conditions of the Tenancy Agreement, each of Landlord and Tenant agree that Section 1.3 of the Tenancy Agreement be amended (as at the date of the Tenancy Agreement) to delete sub-section 1.3(a) in its entirety so that the amended Section 1.3 shall read as follows: |
1.3 Approvals : means the following approvals of the Appropriate Authorities for: |
(a) | the subdivision of the master title of the Land pursuant to the terms of this Tenancy Agreement and the Related Agreements; | ||
(b) | the transfer of the Premises Land to Tenant; and |
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(c) | any other conditions imposed by the Appropriate Authorities from time to time and/or as a condition to the issuance of any Approvals. |
2. | With reference to Section 14.16 of the Tenancy Agreement, Landlord and Tenant acknowledge and agree that (a) the survey appended hereto as Annexure A shall constitute the Survey (as such term is defined therein) for the purposes thereof, and (b) the Site Map previously appended as Annexure A to the Tenancy Agreement shall be included, along with the Survey, on Annexure A solely for the purpose of identifying the Common Areas (as such term is defined therein) and other Improvements (as such term is defined therein). |
3. | Landlord and Tenant hereby agree that the Tenancy Agreement, as amended hereby, is in full force and effect as of the effective date hereof and is hereby ratified and confirmed. |
4. | From and after the effective date hereof, the term Tenancy Agreement shall mean the Tenancy Agreement as described in paragraph (A) of the WHEREAS clause above, together with this Supplemental Agreement. |
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Landlord | Tenant | |||||||||
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AGILENT TECHNOLOGIES (MALAYSIA) SDN. BHD., a company organized under the laws of Malaysia | AVAGO TECHNOLOGIES (MALAYSIA) SDN. BDH. (formerly known as Jumbo Portfolio Sdn. Bhd.) a company organized under the laws of Malaysia | |||||||||
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By:
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/s/ Gooi Soon Chai | By: | /s/ Kenneth Y. Hao | |||||||
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Name Gooi Soon Chai | Name Kenneth Y. Hao | |||||||||
Title: President of Agilent Malaysia & Singapore | Title: Director |
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(i) | Sports Complex; | ||
(ii) | Clinic; | ||
(iii) | Kitchen; and | ||
(iv) | Convenience Store. |
(i) | Main Cafeteria Dining Area; | ||
(ii) | Site Data Center; | ||
(iii) | Main Lobby; | ||
(iv) | FGI Warehouse; | ||
(v) | Incoming Store; | ||
(vi) | Site Logistics Area; |
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(vii) | Logistics Office; | ||
(viii) | Procurement Store; | ||
(ix) | SMI Area; and | ||
(x) | Oracle Support Area. |
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If to Agilent: | Agilent Technologies (Malaysia) Sdn. Bhd. | ||
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Bayan Lepas Free Industrial Zone | |||
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11900 Bayan Lepas, Penang | |||
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Malaysia | |||
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Attention: Mr. Seah Teoh-Teh | |||
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With copy to: | Agilent Technologies, Inc. | ||
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395 Page Mill Road | |||
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Palo Alto, CA 94306 | |||
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United States of America | |||
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Attention: General Counsel |
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If to the Avago: | Avago Technologies Pte. Limited | ||
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1 Yishun Avenue 7 | |||
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Singapore 768923 | |||
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Attn: Bien-Ee Tan | |||
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With copy to: | Avago Technologies (Malaysia) Sdn Bhd | ||
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(Formerly known as Jumbo Portfolio Sdn | |||
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Bhd) Bayan Lepas Free Industrial Zone | |||
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11900 Bayan Lepas, Penang, Malaysia | |||
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Attn: Kong-Beng Saw | |||
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- and - | |||
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Kohlberg Kravis Roberts & Co. | |||
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9 West 57th St., Ste. 4200 | |||
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New York, NY 10019 | |||
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United States of America | |||
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Attn: William Cornog |
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Agilent | Avago | |||||||||
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AGILENT TECHNOLOGIES (MALAYSIA)
SDN. BHD., a company organized under the
laws of Malaysia. |
AVAGO TECHNOLOGIES (MALAYSIA) SDN. BHD., a company organized under the laws of Malaysia | |||||||||
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By:
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/s/ Gooi Soon Chai
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By: |
/s/ Kenneth Y. Hao
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Name:
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Gooi Soon Chai | Name: | Kenneth Y. Hao | |||||||
Title:
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President of Agilent Malaysia & Singapore | Title: | Director |
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1. | Interpretation & Definitions |
1.1 | For the purposes of this Agreement the following words and phrases shall have the following meanings: |
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Affected Party | shall have the meaning ascribed in Section 4.7; | ||
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APA | shall have the meaning ascribed in the Recitals; | ||
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Assessments | shall have the meaning ascribed in Section 11.2 | ||
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Completion Date | means the date which is seven (7) days after the date of satisfaction of the last of the Conditions under Section 5 hereof to be satisfied or waived; | ||
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Conditions | shall have the meaning ascribed in Section 4; | ||
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Coordinating Committee | shall have the meaning ascribed in the Tenancy Agreement; | ||
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Cut-Off Date | means the date that falls on the last day of the thirtieth (30) calendar month from the date of this Agreement or such longer period as may be mutually agreed in writing by the Parties; | ||
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Encumbrance | means any interest or equity of any person (including any right to acquire, option or right of pre-emption) or any mortgage, charge, pledge, lien, assignment, hypothecation, security interest, lease, encumbrance, right, contract, charge, condition, easement, title retention or any other security agreement or arrangement (except solely the rights created under the Tenancy Agreement, |
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this Agreement and the other Related Agreements (as hereinafter defined) referenced and incorporated by reference therein); | |||
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Improvements | means all buildings and improvements located on the Property, and all fixtures, machinery, and equipment attached thereto, all parking lots, driveways, pavings, access cuts, lighting, landscaping, sidewalks, fences, ponds, wetlands, ditches, flumes, water, water rights, reservoirs, and site improvements of any kind (if any) situated upon the Property, and all right, title and interest, if any, of the Vendor in and to any land lying in the bed of any street, road or avenue opened or proposed, public or private, in from of or adjoining the Property. | ||
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Land | means the piece of land, bearing title details PN 2826 Lot 4585, Mukim 12 Daerah Barat Daya, Penang; | ||
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Land Registry | means the Land Registry or Land Office at which the title to the Land or the Property, as the case may be, is registered or to be registered under the provisions of the National Land Code; | ||
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LATA | shall have the meaning ascribed in the Recitals; | ||
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National Land Code | means the National Land Code (Act 56 of 1965) and includes all amendments or re-enactments thereof; | ||
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Price | shall have the meaning ascribed in Section 2.1; | ||
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Property | means such part of the Land as delineated on the Survey attached as Annexure A hereto and incorporated herein which measures 26.99 acres, together with the Improvements thereon and bearing the postal address of Bayan Lepas Free Industrial Zone, 11900 Bayan Lepas, Penang, Malaysia; | ||
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Purchaser | shall have the meaning ascribed in the introductory paragraph to this Agreement; |
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Vendor | shall have the meaning ascribed in the introductory paragraph to this Agreement; | ||
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Vendors Solicitors | means Wong & Partners of Level 41 Suite A, Menara Maxis, Kuala Lumpur City Centre, 50088 Kuala Lumpur. |
1.2 | In this Agreement, unless it is otherwise expressly provided: |
(a) | whenever the words include, includes or including are used in this Agreement they shall be deemed to be followed by the words without limitation; | ||
(b) | the words hereof, hereto, herein and herewith and words of similar import shall, unless otherwise stated, be construed to refer to this Agreement as a whole and not to any particular provision of this Agreement, and article, section, paragraph and exhibit references are to the articles, sections, paragraphs and exhibits of this Agreement unless otherwise specified; | ||
(c) | the meaning assigned to each term defined herein shall be equally applicable to both the singular and the plural forms of such term, and words denoting any gender shall include all genders; | ||
(d) | where a word or phrase is defined herein, each of its other grammatical forms shall have a corresponding meaning; | ||
(e) | a reference to any party to this Agreement or any other agreement or document shall include such partys successors and permitted assigns; | ||
(f) | a reference to any legislation or to any provision of any legislation shall include any amendment to, and any modification or re-enactment thereof, any legislative provision substituted therefor and all regulations and statutory instruments issued thereunder or pursuant thereto; | ||
(g) | the parties have participated jointly in the negotiation and drafting of this Agreement. In the event an ambiguity or question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provisions of this Agreement; | ||
(h) | headings are for convenience only and do not affect the interpretation of the provisions of this Agreement; | ||
(i) | any Annexures or Exhibits attached hereto are incorporated herein by reference and shall be considered as part of this Agreement; |
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(j) | the language in all parts of this Agreement shall in all cases be construed as a whole according to its fair meaning, and not strictly for or against either the Vendor or the Purchaser; and | ||
(k) | if any term, condition, stipulation, provision, covenant or undertaking of this Agreement is or may become under any written law, or is found by any court or administrative body of competent jurisdiction to be, illegal, void, invalid, prohibited or unenforceable then: |
(i) | such term, condition, stipulation, provision, covenant or undertaking shall be ineffective to the extent of such illegality, voidness, invalidity, prohibition or unenforceability; | ||
(ii) | the remaining terms, conditions, stipulations, provisions, covenants or undertaking of this Agreement shall remain in full force and effect; and | ||
(iii) | the parties shall use their respective best endeavors to negotiate and agree a substitute term, condition, stipulation, provision, covenant or undertaking which is valid and enforceable and achieves to the greatest extent possible the economic, legal and commercial objectives of such illegal, void, invalid, prohibited or unenforceable term, condition, stipulation, provision, covenant or undertaking. |
2. | Agreement for Sale |
2.1 | Subject to the terms and conditions contained in this Agreement, in consideration of the value attributable to the Property, which constitutes a portion of the Local Purchase Price (as defined in the LATA) and One Dollar U.S. (US$1.00) (receipt of which the Vendor hereby acknowledges) (collectively, the Price) and the mutual promises, covenants and undertakings contained herein, in the APA, the LATA and the Tenancy Agreement, the Vendor shall sell, and the Purchaser, shall purchase the Property. The Parties acknowledge that the Local Purchase Price will be paid to the Vendor upon the Closing (as defined in the LATA). | ||
2.2 | The Property is sold: |
(a) | free from any Encumbrance; | ||
(b) | with vacant possession in accordance with Section 10; | ||
(c) | subject to all express conditions of title registered or to be registered on the separate issue document of title to be issued in respect of the Property which will not differ in any material respects (materiality being determined by Purchaser in its reasonable discretion) from the express conditions of title on the existing issue documents of title for the Land; |
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(d) | subject to the existing category of land use affecting the Property, namely the industrial category of land; | ||
(e) | upon the basis that each of the representations and warranties set out or referenced herein are true and accurate in all respects; and | ||
(f) | subject to its present state and condition on an as-is where-is basis. |
3. | [Intentionally Omitted] |
4. | Conditions |
4.1 | The Parties agree that the obligation to complete the transaction for the sale and purchase of the Property shall be conditional upon the fulfillment of all the following conditions (Conditions): |
(a) | the approval of the Penang State Authority to the sale and transfer of the Property to the Purchaser or acknowledge that such approval is not required; | ||
(b) | the removal by the Vendor of all Encumbrances from the Property; | ||
(c) | the payment and settlement by the Vendor of all outstanding quit rent, rates, premiums, other outgoings or charges (if any) due and payable for the Property; | ||
(d) | the amendment or deletion of the restriction on interest in respect of sub-division and the sub-division of the Land into 2 portions, in such manner so as to correspond to the demarcation in Annexure A such that upon such sub-division of the Land, there shall be a separate issue document of title issued in respect of the Property; and | ||
(e) | the issuance of separate issue document of title in respect of the Property upon completion of subdivision of the Land. |
4.2 | The Vendor shall, at its own costs and expense, be responsible for the fulfillment of the Conditions in Section 4.1 above. | ||
4.3 | The Vendor shall submit its application for the following: |
(a) | the approval of the Penang State Authority within thirty (30) days from the Closing Date; | ||
(b) | the sub-division of the Land within thirty (30) days from the Closing Date. |
4.4 | Upon obtaining the approval for the subdivision of the title, the Vendor shall as soon as practicable surrender the original issue documents of title to the Land to facilitate the sub-division thereof and the issue of the new individual issue |
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documents of title in respect of the Property and the remainder of the Land not forming part of the Property. | |||
4.5 | Each Party shall use its best endeavours to ensure the fulfillment of the Conditions for which it is responsible on or before the relevant Cut-Off Date, and shall grant all reasonable assistance to the other Party to assist it in fulfilling the Conditions for which the other Party is responsible including executing and providing relevant documents for that purpose. Each Party shall at all times keep the other Party informed of all matters relating to the approvals and without limit, must provide the other Party with copies of all correspondence in relation to the approval. | ||
4.6 | The Conditions have been inserted for the benefit of the Purchaser and the Purchaser may waive any or all of the Conditions at any time by notice in writing to the Vendor. | ||
4.7 | If any conditions or terms are imposed by any of the authorities in connection with any of the approvals obtained and such conditions or terms adversely affect one of the parties hereto (the Affected Party), the Affected Party shall be entitled to give notice to that effect in writing to the other Party within seven (7) Business Days from the date of receipt of notice of the said conditions or terms and the party who made the relevant application shall appeal to the relevant authority against such conditions or terms within seven (7) Business Days therefrom. In the absence of such notice given by the Affected Party, the Affected Party shall be deemed to have accepted the conditions or terms imposed. For the avoidance of doubt, where such Affected Party has given notice pursuant to this Clause, should such conditions or terms remain imposed or the appeal be rejected or remain outstanding on the Cut-Off Date, the Condition concerned shall be deemed to not have been fulfilled. | ||
4.8 | Except as otherwise specifically provided herein, the Parties agree that the provisions set out in Section 11.2 of the Tenancy Agreement shall govern the Parties obligations and rights in the event the Conditions are not fulfilled and/or waived by the expiry of the Cut-Off Date. |
5. | Transfer Documents and Completion |
5.1 | The Vendor shall within fourteen (14) days from the date a separate issue document of title is issued in respect of the Property, execute the Transfer and deposit the Transfer Documents with the Purchasers Solicitors to hold and deal with in accordance with the provisions of this Section 5. | ||
5.2 | Upon receipt by the Purchasers Solicitors of the Transfer Documents, the Purchasers Solicitors are hereby authorised, at such time as it deems fit, to submit the Transfer to the stamp office for the purpose of adjudication and stamping of the same. |
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5.3 | The Purchaser shall on receipt of the notice of the adjudication of the Transfer from the stamp office pay the amount of the stamp duty adjudicated and any penalties. The Parties agree that such stamp duty shall be allocated between the Parties in the manner provided in Section 12.2 below. | ||
5.4 | Subject to the fulfillment of all the Conditions, the Purchasers Solicitors are hereby authorised to cause the Transfer Documents to be presented to the Land Registry for the registration of the Transfer on the Completion Date. This sale and purchase transaction shall be deemed completed upon presentation of the Transfer to the Land Registry. |
6. | Representations, Warranties and Covenants |
6.1 | The Vendor hereby undertakes, declares, represents, warrants and covenants with the Purchaser that: |
(a) | as at the date hereof the Vendor is, and at the Completion Date Vendor shall be, the registered and beneficial owner of the Land and the Property and the Vendor has not created, and will not after the date of this Agreement create (except as may be permitted by the Tenancy Agreement but without limiting the Vendors obligations under Sections 2.2(a) and 4.2 hereof), any Encumbrance over the Property or any part thereof or transfer the Land or the Property to anyone or any entity other than Purchaser, and that, subject to obtaining the relevant approvals, the Vendor is entitled to transfer the Property to the Purchaser upon the terms and conditions of this Agreement; | ||
(b) | as at the date hereof, there are neither claims adversely affecting the rights of the Vendor to possession or use of the Property nor the transfer of the Property from the Vendor to the Purchaser and, save for the occupation of the Property by the Purchaser pursuant to the Tenancy Agreement and any other rights granted in favor of the Purchaser pursuant to the Tenancy Agreement or any Related Agreement, the same shall be true upon the Completion Date; | ||
(c) | The Vendor has been duly incorporated and is validly existing under the laws of Malaysia and has full power, authority and legal right to own its assets and carry on its business and is not in receivership or liquidation, has not taken any steps to enter liquidation and has not presented any petition for the winding up the Vendor, and there are no grounds on which a petition or application could be based for the winding up or appointment of a receiver and/or manager of the Vendor; | ||
(d) | The Vendor has full power, authority and legal right to enter into this Agreement and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in the breach or cancellation or termination of any of the terms or conditions |
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of or constitute a default under any material agreement, commitment or other instrument to which the Vendor is a party or by which the Vendor may be bound or affected or violate any material law or any rule or regulation of any administrative agency or governmental body or any material order, writ, injunction or decree of any court, administrative agency or governmental body affecting the Vendor or the Property; | |||
(e) | As at the date hereof, the Vendor is not in breach, and shall not after the date of this Agreement commit any breach, of any express or implied condition of its title to the Property, | ||
(f) | The Vendor is authorized and legally competent to execute, deliver and perform the terms of this Agreement; and | ||
(g) | As of the date hereof, the Vendor has received no written notice of any condemnation, eminent domain proceeding, taking, or any other action, suit, claim, legal proceeding or any other proceeding affecting the Land, or any portion thereof under the Land Acquisition Act 1960 or otherwise, at law or in equity, currently pending or threatened before any court or governmental agency. |
6.2 | The Purchaser hereby undertakes, declares, represents and warrants with the Vendor that: |
(a) | The Purchaser has been duly incorporated and is validly existing under the laws of Malaysia and has full power, authority and legal right to own its assets and carry on its business and is not in receivership or liquidation, has not taken any steps to enter liquidation and has not presented any petition for the winding up the Purchaser, and there are no grounds on which a petition or application could be based for the winding up or appointment of a receiver and/or manager of the Purchaser; | ||
(b) | The Purchaser is authorized and legally competent to execute, deliver and perform the terms of this Agreement; and | ||
(c) | The Purchaser has full power, authority and legal right to enter into this Agreement and the execution and delivery of this Agreement and the consummation of the transactions contemplated hereby will not result in the breach or cancellation or termination of any of the terms or conditions of or constitute a default under any material agreement, commitment or other instrument to which the Purchaser is a party or by which the Purchaser may be bound or affected or violate any material law or any rule or regulation of any administrative agency or governmental body or any material order, writ, injunction or decree of any court, administrative agency or governmental body affecting the Purchaser. |
6.3 | The Parties hereby acknowledge and agree that, save for the representations and warranties made by the Parties herein and in the Tenancy Agreement, LATA or |
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APA, the Parties (including, without limitation, any other persons or entities acting on behalf of either party), make no other representations and warranties with respect to the sale and purchase of the Property, express or implied, and the Property is sold by the Vendor and to be acquired by the Purchaser on an as-is where-is basis. To the extent any representation or warranties herein are inconsistent with any representations or warranties in the APA, the applicable representations or warranties in the APA, shall control. |
7. | Acquisition of the Property |
7.1 | In the event of the exercise of any rights or the taking of any steps under the Land Acquisition Act 1960, by the government or any other authority having power in that behalf, between the date of this Agreement and the date upon which the Transfer is presented for registration at the Land Registry, to acquire all or a part of the Land and which affects any part of the Property, the Vendor shall notify the Purchaser forthwith on the Vendor receiving notice of the exercise of such rights or the taking of such steps. The Vendor and the Purchaser hereby agree that this Agreement shall remain in full force and effect notwithstanding such notice or action and thereupon: |
(a) | the Vendor shall notify the government, or such other acquiring authority, of the interest of the Purchaser in the Property and the terms of this Agreement; | ||
(b) | the Vendor shall in all matters concerning such acquisition do all acts and things as may be reasonably requested by the Purchaser (at the cost and expense of the Purchaser) for acquiring the best compensation payable; and | ||
(c) | any compensation payable under such acquisition shall belong to the Purchaser as and when the same shall be paid, provided that any such compensation paid to or received by the Vendor shall be retained and held on trust by the Vendor on behalf of the Purchaser and the Vendor shall pay such sums to the Purchaser within fourteen (14) days from receipt of such sums. |
7.2 | Except to the extent resulting from the Vendors gross negligence or willful misconduct, the Purchaser hereby agrees to indemnify and keep the Vendor, and its agents, affiliates, employees and assigns (and their respective agents and employees) indemnified against all direct and indirect damages, costs and expenses and losses incurred by the Vendor from the carrying out of the acts and things as directed by the Purchaser pursuant to Section 7.1(b) above. |
8. | Power to Caveat |
8.1 | The Purchaser shall, at any time after the date of this Agreement, be entitled at its own cost and expense to present and register a private caveat against the Property for the purpose of protecting its interest in the Property prior to the completion of |
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this Agreement (including re-registration upon expiration or other withdrawal of any then existing registration of such private caveat). | |||
8.2 | The Purchaser agrees that where required, it shall withdraw the private caveat over the Land or the Property, as the case may be, if it shall be required to enable any of the Conditions to be fulfilled. The Purchaser further agrees that any delay caused in respect of obtaining the fulfillment of any Conditions by the Vendor, arising from the non-removal of the private caveat by the Purchaser shall extend the Cut-Off Date by such period of delay caused by the non-withdrawal of the private caveat. | ||
8.3 | The Purchaser shall also execute the relevant withdrawal of private caveat documents and deposit the same, together with the relevant fees for the withdrawal of private caveat, with the Purchasers Solicitors upon execution of this Agreement. For the avoidance of doubt, the Purchaser hereby authorises the Purchasers Solicitors to present the said withdrawal of private caveat documents with the relevant Land Office or Land Registry upon the termination of this Agreement or consummation of the Transfer pursuant to the terms of this Agreement. |
9. | Real Property Gains Tax |
9.1 | The Vendor shall be responsible for paying and settling all real property gains tax (if any) payable on the disposal of the Property pursuant to this Agreement as may be assessed by the Director General of Inland Revenue under the provisions of the Real Property Gains Tax Act, 1976. | ||
9.2 | The Vendor and the Purchaser shall within thirty (30) days of the execution of this Agreement comply with Section 13 of the Real Property Gains Tax Act 1976 by submitting the relevant return forms to the Director-General of Inland Revenue and complying with all necessary directions that may be issued by him in respect thereof. | ||
9.3 | The Vendor shall indemnify and hold the Purchaser and its agents, affiliates, employees and assigns (and their respective agents and employees) harmless against all claims, costs, direct and indirect damages, fines or penalties which may be brought, suffered or levied against the Purchaser (or such other person) as a result of the Vendor not complying with any of the provisions of the Real Property Gains Tax Act 1976, including any claims by the Director-General of Inland Revenue arising from the Vendors default in payment of any real property gains tax payable on the disposal of the Property pursuant to this Agreement. |
10. | Possession |
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11. | Quit Rent |
11.1 | All quit rent, rates, assessments, and other outgoings payable in respect of the Property shall be apportioned between the Vendor and the Purchaser as at the date of the delivery of possession in accordance with this Agreement and shall be paid to the party who is entitled to such apportionment within fourteen (14) days of its demand for the same. | ||
11.2 | Subject to the agreement set forth in Section 4.2 of the Tenancy Agreement regarding the apportionment of quit rent, rates, assessments and other outgoings payable in respect of the Property (the Assessments), the Vendor shall indemnify the Purchaser to the extent of the Vendors obligations in respect of such Assessments under the Tenancy Agreement, against any loss or penalty which may be imposed by the relevant authority in respect of any late or non-payment of any such Assessments due and payable for such period prior to the Completion Date. |
12. | Costs |
12.1 | Each party shall bear its own solicitors costs of, and incidental to, the preparation of this Agreement. | ||
12.2 | The Purchaser and Vendor each shall be responsible for and shall pay fifty percent (50%) of all stamp duty and registration fees payable on this Agreement and the Transfer. | ||
12.3 | As of the date hereof, the parties acknowledge and agree that no goods and services tax, value added tax or any other like tax (GST) has been instituted by any Malaysian governmental authority. If, however, any such GST legislation is implemented during the Tenancy Term (as defined in the Tenancy Agreement) (GST Legislation) and any GST is payable as a consequence of any supply made or deemed to be made or other matter or thing done under or in connection with this Agreement by the Vendor or the Purchaser, it is the intent of the Parties that such GST be borne equally by the Vendor and the Purchaser. In such event, the Party responsible under applicable law for the remittance of such GST (the GST Payor) shall timely remit to the appropriate authority the full GST amount then-owning. Upon presentation to the other Party (the GST Non-Payor) of evidence of such GST assessment and the corresponding remittance by the GST Payor, the GST Non-Payor shall promptly reimburse the GST Payor for fifty percent (50%) of such GST amount (but exclusive of any fine, penalty or interest paid or payable in connection therewith due to a default of the GST Payor). The Vendor and the Purchaser agree to cooperate with each other in the provision of any information or preparation of any documentation that may be necessary or useful for obtaining any available mitigation, reduction, refund or exemption from GST. The GST Payor further covenants and agrees to use its reasonable efforts to obtain any available mitigation, reduction, refund or exemption from GST and, upon receipt or recovery of any portion of the aforementioned GST remittance, |
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shall promptly pay to the GST Non-Payor of fifty percent (50%) of such recovered amount. For the avoidance of doubt, the Parties agree that any sum payable or amount to be used in the calculation of a sum payable expressed elsewhere in this Agreement has been determined without regard to and does not include amounts to be added on under this clause on account of GST. |
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14. | General Matters and Covenants |
15. | Successors and Assigns |
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16.1 | This Agreement may be executed in any number of counterparts or duplicates each of which shall be an original, but such counterparts or duplicates shall together constitute one and the same agreement. | ||
16.2 | This Agreement, together with the APA, the LATA, the Tenancy Agreement and the other Related Agreements, constitutes the entire agreement between the parties with respect to the subject matter hereof. Each party acknowledges that, except as provided in the APA, LATA, the Tenancy Agreement and the other Related Agreements, there are no binding agreements or representations between the parties except as expressed or described herein or therein. No subsequent change or addition to this Agreement shall be binding unless in writing and signed by the Vendor and the Purchaser. | ||
16.3 | Time is of the essence with respect to the performance of every provision of this Agreement in which time of performance is a factor. This Agreement shall, subject to the provisions regarding assignment, apply to and bind the respective heirs, successors, executors, administrators and assigns of the Vendor and the Purchaser. Nothing in this Section is intended to confer personal liability upon the officers or shareholders of the Vendor or the Purchaser. When a party is required to do something by this Agreement, it shall do so at its sole cost and expense without right of reimbursement from the other party unless specific provision is made therefor. The Vendor shall not become or be deemed a partner nor a joint venturer with the Purchaser by reason of the provisions of this Agreement. |
17. | Law and Jurisdiction |
17.1 | This Agreement shall be governed and interpreted in accordance with the laws of Malaysia without reference to the choice of law principles thereof. | ||
17.2 | A party seeking the resolution of a dispute arising under this Agreement must provide written notice of such dispute to the other party, which notice shall describe the nature of such dispute. All such disputes shall be referred initially to the Coordinating Committee for resolution. Decisions of the Coordinating Committee shall be made by unanimous vote of all members and shall be final and legally binding on the parties. If a dispute is resolved by the Coordinating Committee, then the terms of the resolution and settlement of such dispute shall be set forth in writing and signed by both parties. In the event that the Coordinating Committee does not resolve a dispute within thirty (30) days of the submission thereof, such dispute shall be resolved in accordance with Section 17.3. Notwithstanding the foregoing, the parties shall each continue to perform |
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their obligations under this Agreement during the pendency of such dispute in accordance with this Agreement. | |||
17.3 | The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached. It is accordingly agreed that the parties shall be entitled to an injunction to prevent any breach of this Agreement and to enforce specifically the terms and provisions of this Agreement by bringing a relevant action in the courts located in Penang, Malaysia, in addition to any other remedy to which any party may be entitled at law or in equity. In addition, the parties agree that any disputes, claims or controversies between the parties arising out of or relating to this Agreement, whether in contract, tort, equity or otherwise and whether relating to the meaning, interpretation, effect, validity, performance or enforcement of this Agreement which have not been resolved by the Coordinating Committee shall be submitted to the exclusive jurisdiction of the courts located in Penang, Malaysia.. |
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Vendor | Purchaser | |||||||||
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AGILENT TECHNOLOGIES (MALAYSIA) SDN. BHD., a company organized under the laws of Malaysia | AVAGO TECHNOLOGIES (MALAYSIA) SDN. BHD., (formerly known as Jumbo Portfolio Sdn. Bhd.), a company organized under the laws of Malaysia | |||||||||
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By:
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/s/ Gooi Soon Chai | By: | /s/ Kenneth Y. Hao | |||||||
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Name: Gooi Soon Chai | Name: Kenneth Y. Hao | |||||||||
Title: President of Agilent Malaysia & Singapore | Title: Director |
1 | TO BE EXECUTED OUTSIDE OF ITALY |
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AVAGO TECHNOLOGIES (MALAYSIA) | ||||
SDN BHD (Company No: 704181-P), as
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Malaysian Guarantor
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By: | /s/ Adam H. Clammer | |||
Name: | Adam H. Clammer | |||
Title: | Director | |||
AVAGO TECHNOLOGIES WIRELESS | ||||
HOLDING (LABUAN)
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CORPORATION (Company No:
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LL05008), as Labuan Guarantor
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By: | /s/ Adam H. Clammer | |||
Name: | Adam H. Clammer | |||
Title: | Director | |||
AVAGO TECHNOLOGIES IMAGING | ||||
HOLDING (LABUAN)
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CORPORATION (Company No:
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LL05006), as Labuan Guarantor
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By: | /s/ Adam H. Clammer | |||
Name: | Adam H. Clammer | |||
Title: | Director | |||
AVAGO TECHNOLOGIES FIBER | ||||
HOLDING (LABUAN)
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CORPORATION (Company No:
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LL05009), as Labuan Guarantor
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By: | /s/ Adam H. Clammer | |||
Name: | Adam H. Clammer | |||
Title: | Director | |||
AVAGO TECHNOLOGIES STORAGE
HOLDING (LABUAN) CORPORATION (Company No: LL0507), as Labuan Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | |||
Title: | Director | |||
AVAGO TECHNOLOGIES ENTERPRISE
HOLDING (LABUAN) CORPORATION (Company No: LL05005), as Labuan Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | |||
Title: | Director | |||
AVAGO TECHNOLOGIES WIRELESS
(U.S.A.) MANUFACTURING INC., as U.S. Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | |||
Title: | Director | |||
AVAGO TECHNOLOGIES IMAGING
(U.S.A.) INC., as U.S. Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | |||
Title: | Director | |||
5. | Avago Technologies Storage Holding (Labuan) Corporation (formerly known as Argos Storage Holding (Labuan) Corporation) (Company No. ll0507) | |
6. | Avago Technologies Enterprise Holding Corporation (formerly known as Argos Enterprise Holding (Labuan) Corporation) (Company No. ll05005) |
AVAGO TECHNOLOGIES STORAGE
(U.S.A.) INC., as U.S. Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director | ||||
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AVAGO TECHNOLOGIES U.S. INC., as
U.S. Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director | ||||
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AVAGO TECHNOLOGIES WIRELESS
(U.S.A.) INC., as U.S. Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director | ||||
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AVAGO TECHNOLOGIES U.S. R&D
INC., as U.S. Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director |
AVAGO TECHNOLOGIES HOLDINGS
B.V., as Dutch Guarantor |
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By: | /s/ Adam H. Clammer | ||
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Name: Adam H. Clammer | |||
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Title: Director | |||
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AVAGO TECHNOLOGIES WIRELESS
HOLDINGS B.V., as Dutch Guarantor |
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By: | /s/ Adam H. Clammer | ||
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Name: Adam H. Clammer | |||
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Title: Director | |||
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AVAGO TECHNOLOGIES STORAGE
HOLDINGS B.V., as Dutch Guarantor |
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By: | /s/ Adam H. Clammer | ||
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Name: Adam H. Clammer | |||
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Title: Director | |||
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AVAGO TECHNOLOGIES IMAGING
HOLDINGS B.V., as Dutch Guarantor |
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By: | /s/ Adam H. Clammer | ||
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Name: Adam H. Clammer | |||
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Title: Director |
AVAGO TECHNOLOGIES JAPAN, LTD.,
as Japanese Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director | ||||
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AVAGO TECHNOLOGIES CANADA
CORPORATION, as Canadian Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director | ||||
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AVAGO TECHNOLOGIES MEXICO, S.
DE R.L. DE C.V., as Mexican Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director | ||||
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AVAGO TECHNOLOGIES U.K. LTD., as
U.K. Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director |
AVAGO TECHNOLOGIES GMBH, as
German Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director |
AVAGO TECHNOLOGIES ITALY S.R.L.,
as Italian Guarantor |
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By: | /s/ Adam H. Clammer | |||
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Name: | Adam H. Clammer | ||||
Title: | Director |
AVAGO TECHNOLOGIES ENTERPRISE IP
(SINGAPORE) PTE. LTD. |
|||
The Common Seal of
AVAGO TECHNOLOGIES ENTERPRISE IP (SINGAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES HOLDING PTE. LTD. | |||
The Common Seal of
AVAGO TECHNOLOGIES HOLDING PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES STORAGE IP
(SINGAPORE) PTE. LTD. |
|||
The Common Seal of
AVAGO TECHNOLOGIES STORAGE IP (SINGAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES FINANCE PTE. LTD. | |||
The Common Seal of
AVAGO TECHNOLOGIES FINANCE PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES FIBER IP (SINGAPORE)
PTE. LTD. |
|||
The Common Seal of
AVAGO TECHNOLOGIES FIBER IP (SINGAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES GENERAL IP
(SINGAPORE) PTE. LTD. |
|||
The Common Seal of
AVAGO TECHNOLOGIES GENERAL IP (SIGNAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES ECBU IP (SIGNAPORE)
PTE. LTD. |
|||
The Common Seal of
AVAGO TECHNOLOGIES ECBU IP (SIGNAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES
INTERNATIONAL
SALES PTE. LIMITED |
|||
The Common Seal
of
AVAGO TECHNOLOGIES INTERNATIONAL SALES PTE. LIMITED was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES
MANUFACTURING
(SINGAPORE) PTE. LTD. |
|||
The Common Seal
of
AVAGO TECHNOLOGIES MANUFACTURING (SINGAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES
IMAGING IP
(SINGAPORE) PTE. LTD. |
|||
The Common Seal
of
AVAGO TECHNOLOGIES IMAGING IP (SINGAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
AVAGO TECHNOLOGIES
WIRELESS IP
(SINGAPORE) PTE. LTD. |
|||
The Common Seal
of
AVAGO TECHNOLOGIES WIRELESS IP (SINGAPORE) PTE. LTD. was hereunto affixed |
)
) ) |
[Seal] | |
/s/ Adam H. Clammer | Director | ||
Adam H. Clammer | |||
/s/ Kenneth Y. Hao | Director | ||
Kenneth Y. Hao | |||
CITICORP NORTH
AMERICA, INC., as
Collateral Agent |
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By: | /s/ David Wirdnam | ||||
Name: David Wirdnam | |||||
Title: Vice President |
2
AVAGO TECHNOLOGIES SENSOR IP PTE. LTD. | ||||||
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By: | /s/ Rex Jackson | ||||
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Name: Rex Jackson | |||||
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Title: Director |
AVAGO TECHNOLOGIES SENSOR (U.S.A.) INC. | ||||||
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By: | /s/ Rex Jackson | ||||
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Name: Rex Jackson | |||||
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Title: Director |
Citicorp North America, Inc., as Collateral Agent | ||||||
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By: | /s/ C. P. Mahon | ||||
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Name: C. P. Mahon | |||||
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Title: Vice President |
By Registered Mail or Overnight
Carrier: |
By Facsimile Transmission: | By Hand Delivery: | ||
The Bank of New York
Reorganization Section 101 Barclay Street, 7E New York, New York 10286 Attn: Bernard Arsenec |
(212) 235-2261
To Confirm by Telephone: (212) 235-2356 For Information Call: (212) 235-2356 |
The Bank of New York
101 Barclay Street Corporate Trust Services Window Ground level New York, New York 10286 Attn: Bernard Arsenec Reorganization Section |
NAME(S) AND | AGGREGATE | |||||||
ADDRESS(ES) OF | PRINCIPAL | PRINCIPAL | ||||||
REGISTERED | CERTIFICATE | AMOUNT | AMOUNT | |||||
TYPE OF NOTE | HOLDER(S) | NUMBER(S)** | REPRESENTED | TENDERED*** | ||||
10-1/8%
Senior Notes due 2013
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Senior Floating
Rate Notes due 2013 |
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11-7/8% Senior
Subordinated Notes due 2015 |
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Total Principal Amount of Outstanding Notes |
* | If the space provided is inadequate, list the certificate numbers and principal amount of Outstanding Notes on a separate signed schedule and attach the list to this Letter of Transmittal. | |
** | Need not be completed by book-entry holders. | |
*** | The minimum permitted tender is $2,000 in principal amount. All tenders must be in integral multiples of $1,000 in principal amount in excess thereof. Unless otherwise indicated in this column, the holder will be deemed to have tendered the full aggregate principal amount represented by such Outstanding Notes. See instruction 2. |
Name of Tendering Institution:
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Account Number:
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Transaction Code Number:
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Name(s) of Registered Holder(s):
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Window Ticket Number (if any):
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Name of Eligible Guarantor Institution that Guaranteed Delivery:
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Date of Execution of Notice of Guaranteed Delivery:
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Name of Tendering Institution:
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Account Number:
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Transaction Code Number:
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Name:
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Address:
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Issue:
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o Outstanding Notes not tendered to: | |
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o Exchange Notes to: |
Name(s):
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(Please Print or Type) | |
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Address:
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(Include Zip Code) |
Daytime Area Code and Telephone Number:
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Taxpayer Identification or Social Security Number:
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DTC Account Number:
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Name(s):
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(Please Print or Type) | |
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Address:
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(Include Zip Code) |
Daytime Area Code and Telephone Number:
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Taxpayer Identification or Social Security Number:
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Date:
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Name(s):
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(Please Print or Type) |
Capacity
(full title):
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Address:
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(Include Zip Code) |
Daytime Area Code and Telephone Number:
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Taxpayer Identification or Social Security Number:
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Date:
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Name:
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(Please Print or Type) | |
Title:
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Name
of Firm:
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Address
of Firm:
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(Include Zip Code) |
Daytime Area Code and Telephone Number:
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Taxpayer Identification or Social Security Number:
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Give the | ||
SOCIAL SECURITY | ||
For this type of account: | number of | |
1. Individual
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The individual | |
2. Two or more individuals (joint account)
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The actual owner of the or, if combined account fund, the first individual on the account 1 | |
3. Custodian account of a minor (Uniform
Gift to Minors Act)
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The minor 2 | |
4. a. The usual revocable savings trust
account (grantor is also trustee)
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The grantor-trustee 1 | |
b.
So-called trust that is not a
legal or valid trust under state
law
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The actual owner 1 | |
5. Sole proprietorship
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The owner 3 |
Give the EMPLOYER | ||
For this type of account: | IDENTIFICATION number of | |
6. Sole proprietorship
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The owner 3 | |
7. A valid trust, estate, or pension trust
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The legal entity 4 | |
8. Corporate
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The corporation | |
9. Association, club, religious, charitable,
educational, or other tax-exempt organization
account
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The organization | |
10. Partnership
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The partnership | |
11. A broker or registered nominee
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The broker or nominee | |
12. Account with the Department of
Agriculture in the name of a public entity
(such as a state or local government, school
district, or prison) that receives
agricultural program payments
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The public entity |
1. | List first and circle the name of the person whose number you furnish. If only one person on a joint account has a social security number, that persons number must be furnished. | |
2. | Circle the minors name and furnish the minors social security number. | |
3. | You must show your individual name, but you may also enter your business or doing business as name. You may use either your social security number or your employer identification number (if you have one). | |
4. | List first and circle the name of the legal trust, estate, or pension trust. (Do not furnish the taxpayer identification number of the personal representative or trustee unless the legal entity itself is not designated in the account title.) |
NOTE: | IF NO NAME IS CIRCLED WHEN THERE IS MORE THAN ONE NAME, THE NUMBER WILL BE CONSIDERED TO BE THAT OF THE FIRST NAME LISTED. |
| An organization exempt from tax under Section 501(a), an individual retirement account (IRA), or a custodial account under Section 403(b)(7), if the account satisfies the requirements of Section 401(f)(2). | ||
| The United States or a state thereof, the District of Columbia, a possession of the United States, or a political subdivision or wholly-owned agency or instrumentality of any one or more of the foregoing. | ||
| An international organization or any agency or instrumentality thereof. | ||
| A foreign government and any political subdivision, agency or instrumentality thereof. |
| A corporation. | ||
| A financial institution. | ||
| A dealer in securities or commodities required to register in the United States, the District of Columbia, or a possession of the United States. | ||
| A real estate investment trust. | ||
| A common trust fund operated by a bank under Section 584(a). | ||
| An entity registered at all times during the tax year under the Investment Company Act of 1940. | ||
| A middleman known in the investment community as a nominee or custodian. | ||
| A futures commission merchant registered with the Commodity Futures Trading Commission. | ||
| A foreign central bank of issue. | ||
| A trust exempt from tax under Section 664 or described in Section 4947. |
| Payments to nonresident aliens subject to withholding under Section 1441. | ||
| Payments to partnerships not engaged in a trade or business in the United States and that have at least one nonresident alien partner. | ||
| Payments of patronage dividends not paid in money. | ||
| Payments made by certain foreign organizations. | ||
| Section 404(k) payments made by an ESOP. |
| Payments of interest on obligations issued by individuals. Note: You may be subject to backup withholding if this interest is $600 or more and you have not provided your correct taxpayer identification number to the payer. | ||
| Payments of tax-exempt interest (including exempt-interest dividends under Section 852). | ||
| Payments described in Section 6049(b)(5) to nonresident aliens. | ||
| Payments on tax-free covenant bonds under Section 1451. | ||
| Payments made by certain foreign organizations. | ||
| Mortgage interest paid to you. |
1. | The Prospectus; | ||
2. | The Letter of Transmittal for your use in connection with the tender of Outstanding Notes and for the information of your clients, including a Substitute Form W-9 and Guidelines for Certification of Taxpayer Identification Number on Substitute Form W-9 (providing information relating to U.S. federal income tax backup withholding); | ||
3. | A form of Notice of Guaranteed Delivery; and | ||
4. | A form of letter, including a letter of instructions to a registered holder from a beneficial owner, which you may use to correspond with your clients for whose accounts you hold Outstanding Notes that are registered in your name or the name of your nominee, with space provided for obtaining such clients instructions regarding the Exchange Offers. |
o | To TENDER ALL of the outstanding 10-1/8% Senior Notes due 2013 held by you for the account of the undersigned. | ||
o | To TENDER the following outstanding 10-1/8% Senior Notes due 2013 held by you for the account of the undersigned ( insert principal amount of outstanding 10-1/8% Senior Notes due 2013 to be tendered, if any ): | ||
$ of 10-1/8% Senior Notes due 2013. | |||
o | NOT to TENDER any outstanding 10-1/8% Senior Notes due 2013 held by you for the account of the undersigned. | ||
$ of Senior Floating Rate Notes due 2013. |
o | To TENDER ALL of the outstanding Senior Floating Rate Notes due 2013 held by you for the account of the undersigned. | ||
o | To TENDER the following outstanding Senior Floating Rate Notes due 2013 held by you for the account of the undersigned ( insert principal amount of outstanding Senior Floating Rate Notes due 2013 to be tendered, if any ): | ||
$ of Senior Floating Rate Notes due 2013. | |||
o | NOT to TENDER any outstanding Senior Floating Rate Notes due 2013 held by you for the account of the undersigned. |
o | To TENDER ALL of the outstanding 11-7/8% Senior Subordinated Notes due 2015 held by you for the account of the undersigned. | ||
o | To TENDER the following outstanding 11-7/8% Senior Subordinated Notes due 2015 held by you for the account of the undersigned ( insert principal amount of outstanding 11-7/8% Senior Subordinated Notes due 2015 to be tendered, if any ): | ||
$ of 11-7/8% Senior Subordinated Notes due 2015. | |||
o | NOT to TENDER any outstanding 11-7/8% Senior Subordinated Notes due 2015 held by you for the account of the undersigned. |
Date:
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Signature(s):
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Print Name(s):
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Address:
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(Include Zip Code) |
Telephone Number:
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Tax Identification Number or Social Security Number:
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My Account Number With You:
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By Registered Mail or Overnight | ||||
Carrier: | By Facsimile Transmission: | By Hand Delivery: | ||
The Bank of New York | (212) 235-2261 | The Bank of New York | ||
Reorganization Section | 101 Barclay Street | |||
101 Barclay Street, 7E | To Confirm by Telephone: | Corporate Trust Services Window | ||
New York, New York 10286 | (212) 235-2356 | Ground level | ||
Attn: Bernard Arsenec | New York, New York 10286 | |||
For Information Call: | Attn: Bernard Arsenec | |||
(212) 235-2356 | Reorganization Section |
Address:
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(Zip Code) |
Account Number:
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Name of Firm:
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(Authorized Signature) |
Address:
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(Include Zip Code) |
Area Code and Telephone Number:
|
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Name:
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(Please Print or Type) |
Title:
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Dated:
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