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Toshiba warns Western Digital to stop impeding chip sale

Tuesday, May 9, 2017 - 13:56

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Toshiba Corp has told partner Western Digital Corp to stop interfering in plans to sell its memory chip business, warning it may take legal action to prevent the US company from derailing the sale.

[TOKYO] Toshiba Corp has told partner Western Digital Corp to stop interfering in plans to sell its memory chip business, warning it may take legal action to prevent the US company from derailing the sale.

Toshiba sent two letters to Western Digital on May 3, which were obtained by Bloomberg. One from Toshiba's lawyers asserts the Japanese company's right to sell its part of the semiconductor joint venture, despite objections from the US hard-disk maker. The second, sent by Toshiba to Western Digital's chief legal officer, says the US company failed to ratify a proposal to formalise their relationship after a merger, and that Toshiba would bar Western Digital employees from its facilities and networks unless it complies by May 15.

Western Digital became Toshiba's manufacturing partner in the flash-memory business when it acquired SanDisk Corp for US$15.8 billion last year. That unit may now pass into the hands of a new owner after Toshiba decided to put it up for sale to shore up its balance sheet following multibillion-dollar losses in its nuclear business. Toshiba has narrowed the list of potential buyers to a group that includes Western Digital rivals, including Taiwan's Hon Hai Precision Industry Co, South Korea's SK Hynix Inc and chipmaker Broadcom Ltd.

"If Western Digital continues to interfere with Toshiba's rights to sell its Affiliate - rights embodied in the joint venture agreements that Western Digital itself relied on when it bought SanDisk - Toshiba will have no choice but to pursue all available remedies," the Tokyo-based company said.

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The letters effectively reject an assertion by Western Digital that Toshiba should negotiate with the San Jose, California-based company first, and that Toshiba needs Western Digital's consent to complete the sale. Western Digital CEO Steve Milligan told Toshiba's board members in a letter on April 9 that the potential bidders for the chips unit were unsuitable and the reported prices offered were above the fair and supportable value of the business. The CEO's letter cautioned in particular against accepting a bid from Broadcom Ltd, which has led the wave of consolidation in the chip industry over the past two years.

In the letter from law firm Morrison & Foerster, Toshiba said it clearly has the right to sell under the change of control provisions in the joint venture contract. In fact, Western Digital took advantage of this very provision when it bought SanDisk's share of the venture, according to the letter.

Western Digital's spokesman Jim Pascoe didn't immediately respond to messages seeking comment.

Toshiba is aiming to complete the sale of the chips unit by March 2018 to raise much-needed cash. The potential offers, which are non-binding at this point, have come in at about 2 trillion yen (S$25 billion), with Hon Hai indicating its willingness to pay as much as 3 trillion yen, Bloomberg has reported. While the large size of the deal has made it necessary for bidders to seek partners to ease the financial burden, participation by Japanese companies may be key to regulatory approval.

"Considering the current lineup of bidders, this shouldn't pose a major risk for the sale process," said Kazunori Ito, an analyst at Morningstar Investment Services. "From the point of view of Toshiba's shares, any delay would be a negative." Western Digital is in talks with state-backed investment funds Innovation Network Corp of Japan and Development Bank of Japan Inc about options for a bid, Mr Long said during an interview last month. He also suggested his company has held discussions with Apple Inc Western Digital may also join a bid by KKR & Co, INCJ and DBJ, according to people familiar with the matter.

Toshiba is in favour of the proposal from KKR and INCJ because it would simplify regulatory approval and speed up the delivery of much-needed cash, said the people, asking not to be identified because the matter is private. KKR and its partners have indicated they would pay 1.8 trillion yen to 2.1 trillion yen, one of the people said. Western Digital's CEO plans a trip to Japan this week to discuss joining the group, another person said.

Toshiba is selling assets to contend with writedowns in its Westinghouse nuclear business, stemming from cost over-runs and construction project delays. The Japanese company put Westinghouse into Chapter 11 bankruptcy protection and said it may book a loss of as much as 1.01 trillion yen for the year that ended in March. In the meantime, Toshiba has asked its main banks for loan extensions and offered stock holdings and real estate as collateral, people familiar with the matter have said.

Aside from the legality of the sale, Western Digital may struggle to match rival bids. The purchase of SanDisk has strained the company's balance sheet, leaving it with net debt of US$8.9 billion as of December. In January, Western Digital said it had cash and cash equivalents of US$5.2 billion. The company said in January it had "liquidity available" totalling US$6.2 billion.

"Western Digital's broad campaign to subvert Toshiba's relationships with its banks and bidders is a transparent attempt to leverage and mischaracterise SanDisk's consent rights to force Toshiba to grant Western Digital rights and advantages it does not have," Louise C Stoupe, a partner at Morrison & Foerster, wrote.

"This campaign constitutes intentional interference with Toshiba's prospective economic advantage and current contracts. It is improper, and it must stop."

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