In a move to discourage its U.S. partner from trying to buy its recently spun-off memory chip unit, Toshiba has taken back a majority stake in a joint venture with the partner, Western Digital, after having transferred the stake to the spun-off unit.
Toshiba retook a 50.1 percent stake in the joint venture between Toshiba and Western Digital's SanDisk LLC at Yokkaichi Operations, that it had transferred to Toshiba Memory Corp. (TMC) after it was spun off from the parent company. Western Digital owns the remainder.
The move, which will be effected on June 3, has been initiated solely with the aim of securing and advancing the process for closing bids for third-party participation in TMC in a timely manner, acording to Toshiba.
The company is confident that reversion of the stakes will not affect the value of the memory business, and that since the actual operation of Yokkaichi is managed by TMC, this decision will not affect chip production.
Following this reversion, Toshiba will narrow down the field of interested parties for its memory business to one candidate by mid-June, and will seek to close a definitive agreement by the date of its annual ordinary general meeting of shareholders, scheduled for June 28. The company's ultimate objective is to close the transaction within FY 2017, to March 31, 2018.
Toshiba is considering a restructuring with third-party capital, including the potential sale of a majority stake in TMC. Multiple parties have expressed an interest in investing in the memory business, and Toshiba has advanced the process in the conviction that doing so does not in any way breach any of its agreements in the memory business with SanDisk. However, Western Digital, which became the parent company of SanDisk in 2016, has objected to and subsequently interfered with the progress of the bid process. Toshiba confirmed that WD has also not participated in the bid processes which have been conducted from January this year.
In addition to invoking arbitration at the International Court of Arbitration through SanDisk, Toshiba says that WD has started to contact other third party bidders and Toshiba's supporting banks with warnings of legal action.
"Toshiba believes that it has every right to proceed with the bid process for third-party participation in TMC. However, as WD has continued to assert that Toshiba's transfer of its stake in the JV to TMC without SanDisk's agreement is a breach of contractual terms, Toshiba has decided to buy back the JV stake held by TMC, and revert to the status of direct investment in the JV by Toshiba Corporation. This removes all grounds for WD's complaint," Toshiba said.
"Toshiba's representation that it will "revert to itself" the JV interests from TMC confirms Western Digital's position that any attempt by Toshiba to transfer those interests would breach SanDisk's contractual consent rights. Toshiba's new action does not resolve SanDisk's claims in the pending arbitration; in fact, Toshiba has simply replaced one attempt to circumvent SanDisk's consent rights with another. The arbitration will therefore continue," Western Digital said.
"Western Digital continues to believe that any actions by Toshiba to transfer its JV interests to a third party without SanDisk's consent clearly violate the anti-transfer provisions of the joint venture agreements. Western Digital does not believe that Toshiba has cured its breach of the JV Agreements. The JV interests at stake here, with respect to which SanDisk has consent rights, include all rights and assets associated with the JVs and form the core value of what Toshiba improperly transferred to TMC. Toshiba's comment in its May 31, 2017 letter to Western Digital that it is transferring back to Toshiba no more than 5% of the value of the bids that Toshiba has received for TMC makes it clear that the full JV interests over which SanDisk has consent rights have not in fact been transferred back to Toshiba and that Toshiba is still planning on transferring those JV interests in clear breach of SanDisk's valuable and essential contractual rights."
"We firmly believe that Western Digital is best positioned to assist Toshiba in addressing its challenges and advancing its legacy of technology innovation in Japan. We remain steadfast in our desire to work with Toshiba to achieve a win-win solution and favorable outcome for all involved," WD added.