Western Digital Sues to Halt Toshiba Sale

发布时间:2017-06-16 00:00
作者:Ameya360
来源:EE Times
阅读量:2136

  Western Digital Corp. (WD) has asked a California court to halt the sale of Toshiba Corp.'s semiconductor business pending the results of arbitration between the two companies on the matter.

  WD said Wednesday (June 14) that several of its SanDisk subsidiaries are seeking preliminary injunctive relief in Superior Court in San Francisco, arguing that ani-transfer provisions in the agreements between the two companies require that Toshiba obtain WD's consent prior to any transfer of the memory chip joint ventures between the two companies.

  Toshiba and Sandisk have been partners in NAND flash technology development and manufacturing since the late 1990s. WD acquired Sandisk for $19 billion last year.

  The two firms have been trading barbs since Toshiba announced plans to sell most or all of its semiconductor business in order to offset losses by its U.S. nuclear power business. WD would like to buy Toshiba's semiconductor business and reportedly increased its offer for it to $18 billion or more in recent days.

  WD last month requested arbitration with Toshiba at the International Chamber of Commerce seeking to unwind the transfer of Toshiba's chip business to a spin off for the the purpose of its sale. WD said Wednesday it is proceeding with the arbitration.

  "Toshiba Corporation's attempts to circumvent our contractual rights have left us with no choice but to take this action," said Steve Milligan, WD's CEO, in a press statement. Milligan added that "left unchecked, Toshiba would pursue a course that clearly violates these rights."

  Meanwhile, Toshiba plans to choose a winning bid this month and finalize the sale by June 28. In addition to WD, other suitors still considered to be in the running include a coalition led by the government-backed Innovation Network Corp of Japan (INCJ), a joint bid by Foxconn and partners including Apple and Dell, and a bid by Broadcom Corp. and U.S. equity firm Silver Lake Partners. The Broadcom-Silver Lake partnership has bid nearly $20 billion, according to reports.

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Western Digital Still Hopes to Block Toshiba Chip Sale
  Toshiba may have settled on a bid from a consortium led by private equity firm Bain Capital for its semiconductor business, but the owner of its longtime partner in NAND flash development is still working to prevent the sale.  After trying for months to hammer out a deal to acquire Toshiba's semiconductor business, Western Digital now appears to be pinning its hopes on a legal strategy that includes three separate arbitration cases and may take two years or more to resolve.  Western Digital has initiated three arbitrations against Toshiba in the matter, most recently last week when it ask the International Chamber of Commerce arbitration court to block Toshiba Memory from going to alone in investing for new equipment for NAND fabs. Toshiba had said it would invest unilaterally in equipment for a new NAND fab at its Yokkaichi operations site, shutting out Western Digital's SanDisk subsidiary, Toshiba's partner in NAND flash development and manufacturing for the past 17 years.  An earlier request for arbitration, filed in May, seeks an injunction that would require Toshiba to unwind the transfer of its semiconductor assets to Toshiba Memory Corp., a subsidiary set up for the purpose of being spun out through a sale. That arbitration request also seeks a ruling preventing Toshiba from transferring assets of the joint venture between the two companies without Western Digital's consent and interim injunctive relief presumably in the form of preventing sale of Toshiba Memory until the matter is resolved. A ruling on the request for injunctive relief is not expected until early next year, Western Digital said.  Western Digital said the arbitrations — each of which will be decided by a three-member panel — are proceeding. The companies have agreed to some of the arbitrators that will sit on the panels, Western Digital said.  There is still no timetable for when the arbitration tribunals will actually begin, and Western Digital said rulings in the cases may take 24 months or more.  The legal maneuvers by Western Digital may well put a kink in the works of Toshiba's plans to sell its chip unit to the Bain group, which also includes South Korean memory chip vendor sk Hynix, Apple, Dell and Japanese government-backed organizations Innovation Network Corp. of Japan (INCJ) and the Development Bank of Japan.  An earlier effort by the same group to acquire Toshiba Memory stalled, reportedly because both INCJ and the Development Bank of Japan wanted Western Digital's legal challenges to be resolved prior to finalizing a deal. The new deal, announced last week,calls for these organizations to participate in funding the acquisition only after the Western Digital challenges are resolved. Toshiba said the deal is based on the premise that the sale would move forward even if courts impose an injunction against Toshiba.  A California court ordered in July that Toshiba must provide Western Digital with at least 14 days of notice prior to close the sale. The court also ruled in August that Toshiba could not prevent SanDisk employees from accessing databases containing relevant manufacturing information about the JVs.  The Reuters news service reported Tuesday that the deal with the Bain-led group is still unsigned because Apple had yet to agree to terms.  Toshiba has been looking to sell its semiconductor business since early this year to offset huge losses incurred by its U.S. nuclear power business. The company has held negotiations with several groups, including one led by Western Digital and another led by Taiwanese contract manufacturing giant Foxconn. Toshiba announced in June that the Bain-led group was its preferred bidder, but the deal stalled over the Western Digital challenges.  In a statement issued Tuesday (Sept. 26), John Hueston, counsel for Western Digital and a partner at Hueston Hennigan LLP, repeated Western Digital's assertion that the joint venture agreements between SanDisk and Toshiba explicitly prohibit the sale of each company's relevant assets without the consent of the other. He said Western Digital remains confident it will succeed in the arbitration process.  "Absent any willingness on Toshiba's part to resolve this matter with its JV partner in a constructive manner, we intend to continue our successful legal efforts into the binding arbitration," Hueston said.
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  A new consortium involving Western Digital Corp. has emerged as the leading contender to acquire Toshiba Corp.'s semiconductor business and could pull the trigger on a deal by the end of this month, according to a report by Japan's Nikkei news service.  A consortium involving Western Digital, U.S. private equity firm Kohlberg Kravis Roberts along with the government-backed entities the Innovation Network Corp. of Japan (INCJ) and the Development Bank of Japan has offered about 1.9 trillion yen (about $17.3) billion for Toshiba Memory and is in late-stage negotiations on a deal, according to the report.  According to the Nikkei report, plans call for Western Digital to ultimately take a stake of less than 20 percent in the unit after the deal clears regulatory reviews.Western Digital would not initially receive voting rights in the venture, the report states.  Relations have gotten testy between Toshiba and Western Digital — partners in NAND flash technology development and manufacturing — since Toshiba announced plans to sell off its semiconductor business earlier this year. The two sides have traded lawsuits in multiple venues over issues such as access to manufacturing data for Western Digital's Sandisk subsidiary and are set to begin arbitration at the International Chamber of Commerce over Toshiba's insistence that it doesn't need Western Digital's permission to sell its chip business.  Toshiba initially resisted Western Digital's attempts to acquire Toshiba Memory, preferring instead a bid from another consortium that included INCJ, the Development Bank of Japan, Bain Capital and SK Hynix. But the two sides have been unable to finalize a deal, reportedly because of uncertainty over the outcome of Western Digital's legal challenge to the sale.  According to the Nikkei report, the INCJ — a public-private venture — and the Development Bank of Japan are willing to be involved in whatever consortium strikes a final deal with Toshiba at the urging of the Japanese government.  Toshiba spun off its semiconductor business in April and began accepting bids for it in an attempt to raise funds to help offset massive losses at its U.S. nuclear power subsidiary. Toshiba is the No. 2 player in NAND flash, with market share of about 18 percent, trailing only Sansung Electronic Co. Ltd.  The $17.3 billion bid from the new consortium is lower than the estimated $18 billion Toshiba initially said it expected the chip unit to fetch.
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