Exhibit 4.10.3
EXECUTION COPY
DATED AS OF 26 JANUARY 2006
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD;
EDB INVESTMENTS PTE LTD; and
SINGAPEX INVESTMENTS PTE LTD;
.... together as the Continuing Parties
And
(2) AGILENT TECHNOLOGIES EUROPE B.V.
..... as the Transferor
And
(3) AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD.
.... as the Transferee
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DEED OF ACCESSION AND RATIFICATION
relating to a joint venture agreement originally dated 13 March
1997, as amended and restated by an amended and restated
joint venture agreement having effect as of 23rd October 2001
and as further amended by an amendment agreement (No.1),
dated 31st January 2002, in respect of Chartered Silicon
Partners Pte Ltd
================================================================
PKWA LAW PRACTICE LLC
ADVOCATES & SOLICITORS
SINGAPORE
EXECUTION COPY
THIS DEED is made as of 26 January 2006
BETWEEN:
(1) CHARTERED SEMICONDUCTOR MANUFACTURING LTD, a company incorporated in
Singapore with its registered office at ▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇
▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ('CSM');
EDB INVESTMENTS PTE LTD, a company incorporated in Singapore with its
registered office at ▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, #▇▇-▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ('EDBI'); and
SINGAPEX INVESTMENTS PTE LTD a company incorporated in Singapore with its
registered office at ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ #▇▇-▇▇ Tower 2, The Atrium @ ▇▇▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ('SIPL');
(together the 'CONTINUING PARTIES')
(2) AGILENT TECHNOLOGIES EUROPE B.V., a company incorporated in The Netherlands
with its principal place of business at ▇▇▇▇▇▇▇▇▇ ▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ (the 'TRANSFEROR' or 'ATE'); and
(3) AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD. a company incorporated
in Singapore with its registered office at ▇▇. ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ (the 'TRANSFEREE OR 'AVAGO'')
WHEREAS:
(A) The Continuing Parties and the Transferor are parties to a joint venture
agreement originally dated 13 March 1997, as amended and restated by an
amended and restated joint venture agreement having effect as of 23rd
October 2001 and as further amended by an amendment agreement (No.1), dated
31st January 2002 in relation to the affairs of Chartered Silicon Partners
Pte Ltd (the 'COMPANY') (such agreements, as varied, supplemented, novated
or amended from time to time, herein collectively, referred to as the
'JOINT VENTURE AGREEMENT').
(B) The Transferor and the Transferee have entered into an agreement for the
sale and transfer by the Transferor of its entire shareholding in the
capital of the Company comprising 108,000,000 ordinary shares of par value
S$1.00 each ('SALE SHARES') to the Transferee subject to, inter alia, the
Transferee entering into this Deed.
(C) Pursuant to the terms and conditions of the share transfer agreement
entered into between the Transferor and the Transferee, the Transferee has
agreed to accept the Sale Shares subject to the terms and conditions set
out in this Deed.
(D) The Continuing Parties have agreed to enter into the terms of this Deed to
amend the Joint Venture Agreement and to join the Transferee as a party
thereto on the terms and subject to the conditions set out in this Deed.
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Confidential
Deed of Accession and Ratification
NOW THIS DEED WITNESSETH AS FOLLOWS:
1. INTERPRETATION
1.1 Construction of Certain Expressions : All words and expressions which are
defined or construed in the Joint Venture Agreement but are not defined or
construed in this Deed shall have the same meanings and construction when
used in this Deed.
1.2 Other References : Reference to "clauses" are to the clauses of this Deed
and references to "parties" are to the parties to this Deed.
2. NOVATION
2.1 With effect from and including 26 January 2006 (the 'EFFECTIVE DATE') and
subject to the completion of the sale and transfer of the Sale Shares by
the Transferor to the Transferee, the Continuing Parties hereby release and
discharge the Transferor (save in relation to any antecedent breach) from
all its duties and obligations under the Joint Venture Agreement and
(without prejudice to the rights of the Continuing Parties in respect of
any antecedent breach), the Transferor shall cease to be a party to the
Joint Venture Agreement.
2.2 The Continuing Parties and the Transferor agree that:
(a) the respective applicable exercise periods relating to the respective
call options and rights of first refusal (as the case may be) under
the Option Agreement, EDBI Call Option Agreement, and SIPL Call Option
Agreement have expired and the parties to each of those agreements
have ceased to have any rights or obligations thereunder;
(b) the Assured Supply and Demand Agreement, as amended from time to time
prior to the date of this Deed, shall terminate upon the Transferor's
sale and transfer of the Sale Shares pursuant to its terms and
consequently, the Term Sheet for Manufacturing Agreement shall cease
to be applicable.
2.3 The Continuing Parties and the Transferee agree that, with effect from and
including the Effective Date and subject to the completion of the sale and
transfer of the Sale Shares by the Transferor to the Transferee, the
following shall apply:
(a) the Transferee shall, subject to the amendments, variations and
modifications contemplated by this Deed, assume all the rights of the
Transferor pursuant to the Joint Venture Agreement;
(b) the Transferee shall, subject to the amendments, variations and
modifications contemplated by this Deed, assume and perform all the
duties and obligations of the Transferor pursuant to the Joint Venture
Agreement including without limitation, the obligations from which the
Transferor is released and discharged pursuant to clause 2.1 as if the
Transferee had at all times been a party to the Joint Venture
Agreement in place of the Transferor save that, the term "Permitted
Transferee" in relation to the Transferee shall mean "Avago
Technologies Limited or any corporation which is 99 per cent owned
(whether directly or indirectly) by Avago Technologies Limited" and
clause 10(D) of the Joint Venture Agreement shall be deemed to be
amended accordingly;
(c) all references in the Joint Venture Agreement to "Agilent
Technologies, Inc" shall be replaced by references to "Avago
Technologies Limited";
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Deed of Accession and Ratification
(d) the definition of "Agilent Technologies, Inc." in clause 1(A) of the
Joint Venture Agreement shall be deleted in its entirety and the
following shall be added to clause 1(A) as a definition of "Avago
Technologies Limited":
""Avago Technologies Limited" means Avago Technologies Limited, a
company incorporated in Singapore, with its principal place of
business at ▇▇. ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇";
(e) all references in the Joint Venture Agreement to "Agilent Technologies
Europe B.V." shall be replaced by references to "Avago Technologies
General IP (Singapore) Pte. Ltd." and all references in the Joint
Venture Agreement to "Agilent" shall be replaced by references to
"Avago";
(f) the definitions of the following in clause 1(A) of the Joint Venture
Agreement shall be deleted in its entirety:
(i) "Agilent Option Shares"
(ii) Assured Supply and Demand Agreement";
(iii) "Call Option Period";
(iv) "CSM Option Shares";
(v) "EDBI Call Option Agreement";
(vi) "EDBI Right of First Refusal Notice";
(vii) "Option Agreement";
(viii) "Option Shares";
(ix) "SIPL Call Option Agreement";
(x) "SIPL Right of First Refusal Notice";
(xi) "Term Sheet for Manufacturing Agreement"; and
(xii) "STPL Group Management and Support Services Agreement";
(g) the definition of "STPL" in clause 1(A) of the Joint Venture Agreement
shall be deleted in its entirety and the following shall be added to
clause 1(A) as a definition of "Temasek":
""Temasek" means Temasek Holdings (Private) Limited, a company
incorporated in Singapore and the ultimate holding company of
SIPL;"
(h) the following clauses in the Joint Venture Agreement shall be deleted
in its entirety:
(i) clause 5(B)(v);
(ii) clause 5(B)(vi);
(iii) clause 6(C);
(iv) clause 10(A);
(v) clause 10(D)(ii)
(vi) clause 10(F)(iii)
(vii) clause 10(G); and
(viii) clause 14(D);
(i) the words "(1) the Agilent Percentage Commitment and the Company
Percentage Commitment (as defined in the Assured Supply and Demand
Agreement), and (2)" appearing in Clause 5(B)(iii) of the Joint
Venture Agreement, shall be deleted;
(j) the words "if it impacts the Company's ability to service Agilent's
wafer requirements under the assured Supply and Demand Agreement"
appearing in clause 5(I)(i)(a) of the Joint Venture Agreement shall be
deleted;
(k) the words "Clause 10, Clause 14(B), Clause 14(D) or the Option
Agreement, the SIPL Call Option Agreement or the EDBI Call Option
Agreement" appearing at clause 5(I)(ii)(d) of the Joint Venture
Agreement shall be deleted and replaced with "Clause 10 or Clause
14(B)";
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Deed of Accession and Ratification
(l) the reference to "▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇," appearing at clause 7(B)(i) of the
Joint Venture Agreement shall be deleted;
(m) the references to "STPL" appearing at clause 10(D)(i)(a) of the Joint
Venture Agreement shall be deleted and replaced with "Temasek";
(n) the notice particulars for Agilent in clause 19(A) of the Joint
Venture Agreement shall be deleted in its entirety and replaced with
the following:
"Avago : Avago Technologies General IP (Singapore) Pte. Ltd.
▇▇. ▇, ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No. : (▇▇) ▇▇▇▇ ▇▇▇▇
Attention : The Board of Directors
With a copy to:
: Avago Technologies Limited
c/o Avago Technologies US, Inc.
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇
Attention : General Counsel"
(o) the notice particulars for EDBI in clause 19(A) of the Joint Venture
Agreement shall be deleted in its entirety and replaced with the
following:
"EDBI : EDB Investments Pte Ltd
▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇,
#▇▇-▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇,
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No. : (▇▇) ▇▇▇▇ ▇▇▇▇
Attention : Director Investments
With a copy to : the Company Secretary";
(p) the notice particulars for SIPL in clause 19(A) of the Joint Venture
Agreement shall be deleted in its entirety and replaced with the
following:
"SIPL : Singapex Investments Pte Ltd
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇,
#▇▇-▇▇ Tower 2,
The Atrium @ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Facsimile No. : (▇▇) ▇▇▇▇ ▇▇▇▇
Attention : The Board of Directors
With a copy to : the Company Secretary";
(q) with respect to representatives which might represent SIPL in
resolving any disputes arising, the reference on clause 19(F)(i) to
"President & CEO, STPL" shall be replaced by "COO, Temasek or such
other senior representative he or she may appoint" and "Chairman,
STPL" replaced by "Chairman, Temasek or such other senior
representative he or she may appoint"; and
(r) item 1, item 2, item 4 and item 6 of the Schedule to the Joint Venture
Agreement shall be deleted.
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Deed of Accession and Ratification
3. SUPPLEMENT TO THE JOINT VENTURE AGREEMENT
This Deed is and shall be construed as supplemental to the Joint Venture
Agreement and every clause therein shall continue in full force and effect
and be binding on the parties thereto save as expressly amended and
supplemented by this Deed. In addition, except as expressly provided for
herein, this Deed shall not affect any rights or interests of the parties
whatsoever existing immediately prior to the Effective Date.
4. CONSENT AND WAIVERS
4.1 Each of the Continuing Parties hereby irrevocably consents to the transfer
of the Sale Shares by the Transferor to the Transferee notwithstanding the
terms of any provision of the Joint Venture Agreement including, clauses
10(B) and 10(C) and any provision of the Articles including Article 22 and
irrevocably waive any rights or claims which they each may have arising
thereunder in respect of the sale and transfer of the Sale Shares by the
Transferor to the Transferee.
4.2 Each of the Continuing Parties hereby undertakes with the Transferor and
the Transferee, respectively that it shall vote affirmatively to approve
the transfer of the Sale Shares to the Transferee, to comply with the
requirements of the Joint Venture Agreement and the Articles.
5. CONFIDENTIALITY PROVISIONS
With effect from the Effective Date, the Transferor, in consideration of
the other parties entering into this Deed, hereby agrees (as a separate,
independent and collateral contract with all the other parties to this
Deed) to be bound by the provisions of clause 18 of the Joint Venture
Agreement, as if it had remained a party to the Joint Venture Agreement.
6. REPRESENTATIONS AND WARRANTIES
Each of the parties hereby severally represents and warrants to and
undertakes with the other parties that:
(a) it is a corporation duly organised and validly existing under the laws
of its place of incorporation, and has full power and authority to
execute and deliver and perform all of its obligations under this Deed
and the Joint Venture Agreement and any other agreements to be
executed by it hereunder;
(b) all actions, conditions and things required to be taken, fulfilled and
done (including the obtaining of any necessary consents) in order (a)
to enable such party lawfully to enter into, exercise its rights and
perform and comply with its obligations under this Deed and the Joint
Venture Agreement and (b) to ensure that those obligations are legally
binding and enforceable have been taken, fulfilled and done;
(c) this Deed and the Joint Venture Agreement are, and all other
agreements and instruments executed or to be executed by such party as
are contemplated hereby shall be, legal, valid and binding agreements
of such party, enforceable against such party in accordance with their
respective terms; and
(d) the execution, delivery and performance of this Deed and the Joint
Venture Agreement by it will not materially conflict with any law,
order, judgement, decree, rule or regulation of any court, arbitral
tribunal or government agency, or any agreement, instrument or
indenture to which such party or any of its related corporations is a
party or is bound thereby.
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Deed of Accession and Ratification
7. COUNTERPARTS
This Deed may be executed in any number of counterparts and by the parties
to it on separate counterparts, each of which shall be an original, but all
of which together shall constitute one and the same instrument.
8. COSTS AND EXPENSES
Each party shall bear its own legal, professional and other costs and
expenses incurred by it in connection with the negotiation, preparation or
completion of this Deed.
9. THIRD PARTIES
A person who is not a party to this Deed has no rights under the Contracts
(Rights of Third Parties) Act, Chapter 53B of Singapore to enforce any term
of this Deed, but this does not affect any right or remedy of a third party
which exists or is available apart from the said Act.
10. GOVERNING LAW
This Deed shall be governed by, and construed in accordance with, the laws
of Singapore and the parties hereby irrevocably submit to the non-exclusive
jurisdiction of the courts of Singapore and waive any objection to
proceedings in any such court on the grounds of venue or on the grounds
that the proceedings have been brought in an inconvenient forum.
IN WITNESS whereof this Deed has been duly executed and delivered.
The Common Seal of )
CHARTERED SEMICONDUCTOR MANUFACTURING LTD )
was affixed hereto in the presence of : )
/s/Chia Song Hwee
-----------------
Director
/s/Looi ▇▇▇ ▇▇▇
---------------
Company Secretary
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Deed of Accession and Ratification
The Common Seal of )
EDB INVESTMENTS PTE LTD )
was affixed hereto in the presence of: )
/s/ Teo ▇▇▇▇ ▇▇▇▇
-----------------
Director
/s/ ▇▇▇▇ ▇▇▇▇
-------------
Company Secretary
The Common Seal of )
SINGAPEX INVESTMENTS PTE LTD )
was affixed hereto in the presence of : )
/s/ Chua Siang ▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Director
/s/ Ho ▇▇▇ ▇▇▇
--------------
Company Secretary
Executed under Seal and delivered as a Deed by )
AGILENT TECHNOLOGIES EUROPE B.V. )
acting by its Attorney, Seah Teoh Teh )
pursuant to a Power of Attorney ) /s/ Seah Teoh Teh
dated 18 January 2006 )
in the presence of : )
/s/ Fauziah Kasmawai
--------------------
The Common Seal of )
AVAGO TECHNOLOGIES GENERAL IP (SINGAPORE) PTE. LTD. )
was affixed hereto in the presence of : )
/s/ Tan Bian Ee
---------------
Director
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇ s/o ▇▇▇▇▇▇▇ ▇▇▇▇▇
-----------------------------------
Director/Company Secretary
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Deed of Accession and Ratification