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EXHIBIT 10.19
PACKAGING & TEST SERVICES AGREEMENT
BY AND AMONG
AMKOR TECHNOLOGY, INC.
AMKOR ELECTRONICS, INC.
C.I.L. LIMITED
ANAM USA, INC.
AND
ANAM INDUSTRIAL CO., LTD.
JANUARY 1, 1998
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TABLE OF CONTENTS
Page
Article I Purpose 3
Article II Definitions 4
Article III Marketing & Sales Services 5
Article IV Purchase Commitments & Forecasts 6
Article V Packaging Services 8
Article VI Specifications, Quality & Reliability 8
Article VII Electronic Data & Information Exchange 9
Article VIII Delivery & Risk of Loss 10
Article IX Pricing & Invoicing 10
Article X Packaging Services Warranty 11
Article XI Intellectual Property Warranty & Indemnifications 12
Article XII Intellectual Property Ownership & Licenses 13
Article XIII Research & Development & Technology Ownership 15
Article XIV Liability Limitations 15
Article XV Term 15
Article XVI Arbitration 16
Article XVII Miscellaneous 17
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PACKAGING AND TEST SERVICES AGREEMENT
This Packaging and Test Services Agreement ("Agreement") is made and
entered into this 1st day of January 1998 ("Effective Date") by and among Amkor
Technology, Inc., a corporation organized and existing under the laws of the
state of Delaware, with offices located at 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx,
Xxxxxxxxxxxx 00000; Amkor Electronics, Inc., a corporation organized and
existing under the laws of the Commonwealth of Pennsylvania, with offices
located at 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000; C.I.L.
Limited, a corporation organized and existing under the laws of the Cayman
Islands, with offices located at CIBC Building, Xxxxxx Street, Grand Cayman,
Cayman Islands; Anam USA, Inc., a corporation organized and existing under the
laws of the Commonwealth of Pennsylvania, with offices located at 0000
Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000; and, Anam Industrial Co.,
Ltd., a corporation organized and existing under the laws of the Republic of
Korea, with offices located at 280-8 Sungsu 2-ga, Sungdong-ku, Xxxxx 000-000,
Xxxxx ("Parties").
RECITALS
WHEREAS, Amkor Technology, Inc. ("ATI") is the parent corporation of,
among other legal entities, Amkor Electronics, Inc. ("Amkor") and C.I.L. Limited
("CIL"); and
WHEREAS, Anam Industrial Co., Ltd. ("AICL"), a publicly traded Korean
company, is engaged in the business, inter alia, of performing various
semiconductor packaging and test services and desires to market said services to
the semiconductor industry through Amkor and CIL; and
WHEREAS, Amkor and CIL are engaged in the business of marketing
subcontract packaging and test services to the semiconductor industry and desire
to purchase such services from AICL; and
WHEREAS, Anam USA, Inc. ("Anam USA"), a wholly-owned subsidiary of
AICL, is a trading company that will establish financing arrangements for AICL,
Amkor and CIL with respect to the services and transactions contemplated
hereunder.
NOW THEREFORE, in consideration for the mutual covenants and promises
contained herein and in reliance thereon, the Parties hereby agree as follows:
1. ARTICLE I - PURPOSE
The Parties hereto have enjoyed a well-established and synergistic
business relationship whereby Amkor and CIL and their respective
Affiliates have established numerous relationships with semiconductor
companies to provide integrated circuit packaging and test services. A
substantial portion of these services has been performed by AICL, who,
in turn, has relied on Amkor and CIL for their worldwide marketing and
sales capabilities.
The purpose of this Agreement is to establish a long-term arrangement
between the Parties to provide Packaging Services to the semiconductor
industry. The Parties believe that such a long-term relationship, under
the terms and conditions of this Agreement, is necessary to assure
their respective long-term profitability and growth and is in their
respective best interests.
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2. ARTICLE II - DEFINITIONS
2.1 "Affiliate" of a Party shall mean an entity that is controlled
by such Party or by an entity controlling such Party. For the
purposes of the foregoing, "control" means ownership, directly
or indirectly, of at least fifty percent (50%) of the voting
stock of the controlled entity.
2.2 "Bankruptcy Event" shall mean any of the following events or
circumstances with respect to a Party: (i) such Party ceases
conducting its business in the normal course; (ii) becomes
insolvent or becomes unable to meet its obligations as they
become due; (iii) make a general assignment for the benefit of
its creditors; (iv) petitions, applies for, or suffers or
permits with or without its consent the appointment of a
custodian, receiver, trustee in bankruptcy or similar officer
for all or any substantial part of its business or assets; or
(v) avails itself or becomes subject to any proceeding under
the U.S. Bankruptcy Code or any similar state, federal or
foreign, including Korean, statute relating to bankruptcy,
insolvency, reorganization, receivership, arrangement,
adjustment of debts, dissolution or liquidation, which
proceeding is not dismissed within sixty (60) days of
commencement thereof.
2.3 "Customer" shall mean a third party with whom Amkor, CIL or
AICL, as the case may be, enters into a contractual
arrangement to provide Packaging Services.
2.4 "Die" shall mean the semiconductor wafers and/or die supplied
to AICL by Customers for the Packaging Services.
2.5 "Direct Material Costs" shall mean direct material costs
incurred in the performance of Packaging Services .
2.6 "Customer Contract" shall mean a contract (including the Amkor
or CIL Quotation) between Amkor or CIL, as the case may be,
and a Customer to provide Packaging Services to such Customer.
2.7 "Intellectual Property Rights" shall mean all rights in, to,
or arising out of: (i) any U.S., international or foreign
patent or any application therefor and any and all reissues,
divisions, continuations, renewals, extensions and
continuations-in-part thereof; (ii) inventions (whether
patentable or not in any country), invention disclosures,
improvements, trade secrets, proprietary information,
know-how, technology and technical data; (iii) copyrights,
copyright registrations, mask works, mask work registrations,
and applications therefor in the U.S. or any foreign country,
and all other rights corresponding thereto throughout the
world; and (iv) any other proprietary rights in or to
Technology anywhere in the world.
2.8 "Packaging Services" shall mean providing integrated circuit
assembly, packaging and test services, or related services by
AICL with respect to Customer Die .
2.9 "Products" shall mean integrated circuits assembled and/or
tested by AICL for Amkor, CIL or their respective Customers.
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2.10 "Qualified Facilities" shall mean any of AICL's four (4)
Korean factories which are qualified to perform Packaging
Services for Customer Products pursuant to Customer
requirements, specifications and other similar criteria.
2.11 "Quotation" shall mean the written quotation provided by Amkor
or CIL to their Customers which contains the material terms of
agreement for Packaging Services.
2.12 "Technology" shall mean all technology, however embodied,
including all know-how, show-how, techniques, processes,
specifications, recipes, mask works, design rules, trade
secrets, inventions (whether or not patented or patentable),
algorithms, routines, software, net lists, files, databases,
works of authorship, devices and hardware.
2.13 "Term" shall mean the term of this Agreement as defined in
Section 15.1.
2.14 "Total Device Revenue" shall mean all amounts billed to
Customers by Amkor or CIL for Packaging Services including 1)
base price, 2) material and process adders, 3) gold/silver
adders, 4) fast track premiums, and 5) lot charges, but
excluding packing/shipping materials (i.e., trays) and
miscellaneous charges such as tooling and non-recurring
engineering costs.
3. ARTICLE III - MARKETING & SALES SERVICES
3.1 Amkor will provide Packaging Services to Customers that
principally are located in the United States. CIL will provide
Packaging Services to Customers that principally are located
outside of the United States excluding the Republic of Korea
which will be serviced directly by AICL.
3.2 Amkor and CIL, either directly or through their respective
Affiliates, will enter into Customer Contracts for Packaging
Services and, upon execution of same, will provide AICL with
the material terms and conditions thereof.
3.3 Amkor and CIL will use commercially reasonable efforts to
enter into Customer Contracts so as to maximize the
utilization of AICL's manufacturing capacity consistent with
the respective interests of the Parties, their respective
obligations under the Agreement, and the operational and
business requirements of the manufacturing and packaging
facilities of ATI's Affiliates. In furtherance of the
foregoing, Amkor's and CIL's responsibilities to AICL will
include using reasonable commercial efforts to:
3.3.1 actively and diligently market Packaging Services to
potential and existing Customers;
3.3.2 provide timely Forecasts (as defined below in Section
4.1) to permit AICL to efficiently plan its capacity
requirements; and
3.3.3 arrange through an Affiliate of ATI, Amkor-Anam,
Inc., for the supply to AICL of all direct materials
to enable AICL to package and test products in
accordance with the relevant Customer Contract.
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3.4 CIL will have the sole discretion to have Packaging Services
performed by any of (Subject to the purchase commitment
described in Article IV below, Amkor and i) the Affiliates of
ATI, (ii) third parties, or (iii) AICL.
4. ARTICLE IV - PURCHASE COMMITMENTS & FORECASTS
4.1 Amkor and CIL shall have the right of first refusal with
respect to substantially all of the utilization of AICL's
capacity subject to the terms herein. In order to facilitate
an orderly and equitable capacity reservation and allocation
process, Amkor, CIL, and AICL agree that Amkor will coordinate
the process for commitment and allocation of AICL's capacity
among the Customers based on a mutually agreed upon set of
rules for equitably reserving and allocating AICL's capacity
(the "Commitment & Allocation Policy"). Amkor, CIL and AICL
shall use commercially reasonable efforts to obtain each month
from their Customers a six-month rolling forecast of such
Customers' requirements ("Forecasts"). Updates to said
Forecasts shall be communicated to Amkor as demand changes are
received from the Customers.
4.2 AICL will provide Amkor and CIL, on a monthly basis, a
six-month rolling capacity plan ("Capacity Plan") by package,
for packaging services, and by test platform, for test
services. AICL will further provide a weekly notification to
Amkor and CIL of any changes in delivery schedules or
equipment ratings to the Capacity Plan since the last monthly
report. In order to facilitate AICL's capacity planning and
materials procurement services, Amkor and CIL will include
with their Forecasts to AICL their assessment of these
Forecasts. AICL will use the Customers' Forecasts and Amkor's
and CIL's assessment of these Forecasts only as a guide of
anticipated requirements, and such Forecasts and judgements
will not constitute a commitment by either (i) AICL to Amkor
or CIL, or (ii) by Amkor or CIL to AICL. Such Customer
Forecasts will not constitute a commitment by the Customers to
furnish Die for packaging or testing in amounts at least equal
to their respective Forecasts.
4.3 In addition to the Forecasts, Amkor, CIL and AICL will
annually prepare a sales projection by month and by package
for the upcoming fiscal year ("Annual Plan") in order to
facilitate AICL's longer-range capacity and space planning.
AICL will use the Annual Plan only as a guide to anticipated
requirements and such projections will not constitute a
commitment by either (i) AICL to Amkor or CIL, or (ii) by
Amkor or CIL to AICL.
4.4 Amkor and CIL will consult with AICL prior to making
commitments to its Customers with respect to processing
specifications or cycle time. AICL will be obligated to
process all Die received from Amkor's and CIL's Customers in
accordance with the processing and cycle time specifications
agreed to by Amkor and CIL and their Customers and in
accordance with the commitments of capacity made by Amkor and
CIL to their Customers.
4.5 Immediately upon receipt of each lot of Die from the Customers
at either AICL's bonded warehouse in Korea or Amkor's shipping
office in San Jose, California, AICL will provide an accurate,
firm ship date for the completed packaged and/or
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tested Products. For bulk Die receipts (i.e., Die shipments
from a given Customer for a given package that exceed the
current week's processing commitment as made by either Amkor
or CIL to the given Customer), AICL will immediately provide a
planned ship date for the quantity of Die exceeding the
current week's loading commitment. AICL shall commit that this
planned ship date will be considered a "not later than" ship
date by Amkor, CIL and the Customer.
4.6 In the event that Customers of Amkor or CIL send Die that has
not been Forecasted or committed to AICL ("Unforecasted Die")
for Packaging Services, AICL will be obligated to perform the
requested services within the agreed upon cycle time for those
Customers, provided that AICL's capacity and raw materials
inventory, at that point in time, on the line in question is
sufficient to satisfy the cycle time commitments for the Die
already awaiting production plus the Unforecasted Die, and
also provided that Amkor or CIL has engaged such Customers'
business as evidenced by a Customer Contract.
4.7 In the event that the volume of Customer Die awaiting
Packaging Services exceeds AICL's capacity or raw materials
inventory to process that Die within the cycle times agreed
upon with each Customer, Amkor shall manage AICL's capacity or
raw materials inventory among Amkor's, CIL's and AICL's
Customers in accordance with the Allocation Policy. For this
purpose, a packaging or test line is deemed to be "on
allocation" if the volume of Die in front of the line exceeds
one week's capacity on that line. Likewise, a particular raw
material component will be deemed to be "on allocation" if the
volume of Die requiring that particular component plus the
future loading commitments made that require that component
exceeds the current inventory plus the anticipated deliveries
of that component over the same time period.
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4.9 Remediation for higher levels of capacity under-utilization
that persist for extended periods can be comprehended in the
quarterly contract price renegotiations between Amkor, CIL,
and AICL pursuant to this Agreement should all Parties agree
thereto. In the event that AICL adds capacity beyond the
levels suggested by the Customer Forecasts, Amkor's and CIL's
judgements of those Forecasts, and the Annual Plan, and such
capacity becomes unutilized, such unutilized capacity will not
be considered for possible remediation in the quarterly
contract price renegotiations between Amkor, CIL, and AICL.
Furthermore, in the event that persistently higher levels of
under-utilization of capacity result from AICL's failure to
procure sufficient supplies of raw materials, as suggested by
the Customer
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Forecasts, such under-utilized capacity will likewise not be
considered for possible remediation.
5. ARTICLE V - PACKAGING SERVICES
5.1 AICL will provide Packaging Services to Amkor and CIL, or on
behalf of Amkor and CIL to their respective Customers. Such
services will be in conformity with the obligations of Amkor
and CIL to their respective Customers as set forth in the
relevant Customer Contract and will otherwise permit Amkor and
CIL to fulfill their respective Customer obligations.
5.2 In furtherance of the foregoing, AICL shall, among other
things, use its reasonable commercial efforts to:
5.2.1 maintain a coordinated tracking system capable of
identifying the status of Customer materials and Die
at any time;
5.2.2 participate with Amkor and CIL in compiling the
Annual Plan (as defined under Section 4.3) based on
annual demand as forecasted by Amkor and CIL and in
accordance with a worldwide management accounting
system to be prescribed by Amkor;
5.2.3 obtain, install and qualify required capacity
commensurate with demand as forecasted in the Annual
Plan, the six-month rolling Customer Forecasts (as
defined under Section 4.2) or such other level of
capacity as mutually agreed among Amkor, CIL and
AICL;
5.2.4 provide purchasing and custodial services for Amkor
and CIL regarding required direct materials and
tooling for Customer Contracts; and
5.2.5 engage in the R&D activities in cooperation with
Amkor, as set forth in Article XIII.
6. ARTICLE VI - SPECIFICATIONS, QUALITY & RELIABILITY
6.1 AICL shall manufacture and supply all Products to or on behalf
of Amkor and CIL in accordance with the specifications
provided to AICL by Amkor, CIL or their respective Customers.
6.2 Amkor and CIL reserve the right to modify the specifications
as may be required by technological enhancements, cost
considerations, market conditions, or other similar factors.
Any such modifications shall be submitted to AICL who shall
take immediate actions to incorporate such changes in the
applicable Products as soon as reasonably possible.
6.3 AICL will be responsible for meeting and maintaining quality
and reliability standards as reasonably specified by the
Customer Contracts.
6.4 AICL will perform Packaging Services only at Qualified
Facilities.
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6.5 AICL will not implement Product changes and/or changes in
Product materials which may directly or indirectly impact
compliance with the Customer's specifications, unless such
changes have been approved by Amkor or CIL, as the case may
be.
7. ARTICLE VII - ELECTRONIC DATA & INFORMATION EXCHANGE
7.1 For purposes of satisfying Customer requirements and
optimizing the flow of business communications, Amkor, CIL,
AICL, and Customers will work jointly to effect the electronic
exchange of certain data and information as described below.
7.1.1 AICL will provide information from its internal
computer systems to Amkor and CIL, as agreed to by
Amkor, CIL, and AICL, to support Amkor's and CIL's
needs to perform certain functions including, but not
limited to, billing, lot tracking, product costing,
capacity commitments, order promising, annual and
long range planning, material planning, material
procurement and control, and quality tracking and
reporting.
7.1.2 Amkor and CIL will likewise provide information from
their internal computer systems to AICL to support
AICL's needs in certain areas including, but not
limited to, capacity planning, material procurement
services, and production scheduling.
7.1.3 Amkor, CIL, and AICL will work jointly to establish
and maintain an effectively linked electronic mail
system, communications network, data exchange
network, electronic document management and control
system, and workflow systems.
7.1.4 AICL will establish and maintain a FTP (File Transfer
Protocol) site and capability for the purpose of
receiving engineering, production, and other such
documents electronically from Amkor's and CIL's
Customers, and as a means for staging data required
by certain Customers.
7.1.5 AICL will provide Amkor's and CIL's Customers with
reports or other information directly, from time to
time, as deemed necessary by Amkor and CIL, or their
respective Customers, and in compliance with the
formats, means, and definitions prescribed by such
Customers.
7.1.6 When communicating information to Amkor and CIL or
their Customers, AICL will utilize definitions in
terms, data fields, and measurements as prescribed by
Amkor and CIL, or by Amkor's and CIL's Customers, as
the case may be.
7.1.7 AICL will provide Amkor and CIL with any necessary
information or assistance in meeting any Customers'
information exchange requirements that may directly
or indirectly affect AICL.
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7.2 Amkor, CIL, and AICL agree to notify and gain approval from
the other Parties should such Party desire to implement any
changes or upgrades to the foregoing systems and networks that
could potentially have an impact on the other Parties. The
data and information contemplated above shall be subject to
the confidentiality agreement pursuant to Section 17.1 hereof.
8. ARTICLE VIII - DELIVERY & RISK OF LOSS
8.1 Amkor and CIL shall be responsible for ensuring the delivery
of Customer Die or wafers to AICL. All return shipments of
Products by AICL shall be made in accordance with the terms
specified in the applicable Customer Contract.
8.2 All Products shall be shipped in secure containers with
applicable labels identifying, as required, any Customer
specific Product numbering or lot number. Each shipment shall
also contain the agreed upon processing documentation such as
commercial invoices or bills of lading.
8.3 AICL shall be responsible for the safe storage and handling of
Customer Die or wafers while in its possession. The liability
of AICL in regard to any damage or loss to said Die or wafers
while in its possession shall be determined in accordance with
the applicable Customer Contract, and AICL shall indemnify
Amkor or CIL to the extent of their liability under said
Contract.
9. ARTICLE IX - PRICING & INVOICING
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10. ARTICLE X - PACKAGING SERVICES WARRANTY
10.1 Warranty
AICL warrants, at a minimum, that its Packaging Services and
Products (excluding Customer supplied Die and wafers) shall be
in conformance with the specifications provided by Amkor, CIL
or their respective Customers and will be free from defects in
workmanship and materials. In addition, AICL shall adhere to
those warranties specified in any Customer Contracts, provided
that copies of said warranties were made available to AICL
prior to the performance of Packaging Services under such
Customer Contracts.
10.2 Remedy
Upon breach of any of the warranties made or referred to in
Section 10.1 above, AICL, at the sole option of Amkor or CIL,
shall either rework any nonconforming Product or issue a
credit for the amount of the associated Packaging Services.
Subject to Section 10.3 and Article XIV, AICL will indemnify,
defend, and hold harmless Amkor and CIL against all warranty
claims, settlement costs or damages arising out of AICL's
failure to comply with
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any warranties provided by Amkor or CIL under their respective
Customer Contracts.
10.3 Limitation
THE WARRANTIES SET FORTH IN THIS AGREEMENT ARE IN LIEU OF ALL
OTHER WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING,
WITHOUT LIMITATION, WARRANTIES AS TO MERCHANTABILITY OR
FITNESS FOR A PARTICULAR PURPOSE. IN NO EVENT WILL ANY PARTY
BE LIABLE OR RESPONSIBLE FOR ANY CONSEQUENTIAL, INDIRECT,
INCIDENTAL, PUNITIVE OR SPECIAL DAMAGES ARISING OUT OF OR
RESULTING FROM THE PERFORMANCE OF ANY OBLIGATIONS HEREUNDER.
11. ARTICLE XI - INTELLECTUAL PROPERTY WARRANTY & INDEMNIFICATIONS
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12. ARTICLE XII - INTELLECTUAL PROPERTY OWNERSHIP AND LICENSES
12.1 Intellectual Property Ownership
12.1.1 Except as set forth herein, this Agreement shall not
affect a Party's Intellectual Property Rights
existing prior to the Effective Date.
12.1.2 Each Party shall own all Intellectual Property Rights
in Technology created or invented by such Party's
employees, as determined in accordance with
principles of United States law.
12.1.3 Any Technology created or invented by the employees
of more than one Party, and all Intellectual Property
Rights therein, will be jointly owned by the Parties
that are the employers of such employees, as
determined in accordance with principles of United
States law. Such joint ownership will be without the
duty to account. Such Parties shall cooperate in the
enforcement of such jointly-owned Intellectual
Property Rights against third-party infringers.
12.2 Licenses
12.2.1 Amkor and CIL hereby grant to AICL and its Affiliates
a non-exclusive, non-sublicensable, perpetual,
worldwide, irrevocable license under all Intellectual
Property Rights that Amkor, CIL or any of their
Affiliates now or during the Term may hold or
acquire, and which they are free to license to third
parties without payment of any kind to (i) provide
Packaging Services, (ii) manufacture, use, sell and
import Products, and (iii) perform AICL's related
activities. Amkor, CIL and their Affiliates shall
disclose promptly to AICL any Technology to which
AICL would reasonably desire access in connection
with the performance of its obligations under this
Agreement, the provision of Packaging Services, or
the operation of its Packaging Services business.
12.2.2 AICL, on behalf of itself and its Affiliates, hereby
grants to Amkor, CIL and their Affiliates a
non-exclusive, fully sublicensable, perpetual,
worldwide, irrevocable license under all Intellectual
Property Rights that AICL or its Affiliates now or
during the Term may hold or acquire, and which they
are free to license to third parties without payment
of any kind to (i) provide Packaging Services, (ii)
have manufactured, use, sell and import Products, and
(iii) otherwise conduct activities related to the
Packaging Services. AICL shall disclose promptly to
Amkor, CIL and their Affiliates any Technology to
which Amkor and CIL would reasonably desire access in
order for Amkor, CIL and their Affiliates to operate
their Packaging Service businesses.
12.3 Intellectual Property Protection
12.3.1 The Parties shall cooperate to obtain patents,
copyright and mask work registrations, and other
intellectual property protection with respect to any
Technology developed by any of them related to
Packaging Services or resulting from any joint
development hereunder. In the case of
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jointly-owned Intellectual Property Rights, the
Parties shall equitably allocate the costs of
obtaining patent, copyright, mask work and other
protection for such Intellectual Property Rights
among themselves.
12.3.2 Notwithstanding the foregoing, each Party shall have
the right to file patent applications or copyright or
mask work registrations on any inventions made by, or
works authored by, its employees. Any patents or
registrations issuing from such applications shall be
exclusively owned by the Party that made such
application.
12.4 Third Party Licenses
In the event that a Party intends to license Technology from a
third party, it will endeavor to obtain a license on equal
terms for any of the other Parties and their Affiliates to the
extent that such other Parties and Affiliates would benefit
from such a license.
12.5 Enforcement of Intellectual Property
12.5.1 If a Party becomes aware that a third party is
infringing such Party's or any other Party's
Intellectual Property Rights, such Party shall
promptly notify the relevant other Parties thereof.
12.5.2 Where such Intellectual Property Rights are owned by
only one Party, such Party shall have the sole right
to determine whether or not to bring infringement or
unfair competition or related proceedings in
connection with any such infringement.
12.5.3 If such infringed Intellectual Property Rights are
owned by more than one Party, then within thirty (30)
days of receipt of such notice or otherwise becoming
aware of such infringement, such Parties shall
determine which of them, if any, shall bring an
infringement or unfair competition or related
proceedings in connection with such infringement. In
any event, all such parties shall cooperate in the
bringing of such action and, where required, join
such action. Any amount awarded with respect to any
proceeding shall be payable entirely to the Party or
Parties bringing such proceeding, unless otherwise
agreed by the Parties. Any disputes as to which Party
has the right to prosecute such proceeding, or as to
allocation of proceeds from such proceeding, shall be
settled by arbitration as provided in Article 16.
12.6 Use of AICL Trademarks
AICL hereby grants to Amkor and CIL and their respective
Affiliates the right to use AICL's and Anam USA's respective
corporate names, trademarks and service marks ("AICL
Trademarks") in connection with the promotion of AICL's
Packaging Services and otherwise in connection with Amkor's
and CIL's Packaging Service operations. Amkor and CIL and
their respective Affiliates shall observe all instructions and
directions provided to them by AICL or Anam USA regarding the
use of the AICL Trademarks. Amkor and CIL and
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their respective Affiliates shall not use the AICL Trademarks
in a manner that detracts from the goodwill associated with
such AICL Trademarks.
13. ARTICLE XIII - RESEARCH & DEVELOPMENT
13.1 Joint R&D Committee
Amkor, CIL and their Affiliates and AICL shall establish a
committee ("R&D Committee") to coordinate their respective
research and development activities and any joint research and
development projects. Amkor and AICL shall designate two (2)
individuals to serve on the R&D Committee. Such R&D Committee
shall meet from time to time during the Term, as it shall in
its discretion determine.
13.2 Coordination
13.2.1 Amkor, CIL and their Affiliates and AICL shall
collaborate in and coordinate their respective
research and development activities, as well as those
of their respective Affiliates, so as to xxxxxx the
development of new and improved technologies related
to Packaging Services.
13.2.2 Unless otherwise agreed or determined by the R&D
Committee, (i) Amkor, CIL and their Affiliates will
have primary responsibility for developing new and
advanced packaging designs and technologies; and (ii)
AICL and its Affiliates will have primary
responsibility for developing new and advanced
technologies for packaging and test processes,
methods and systems.
13.3 Funding
Unless specifically agreed in writing to the contrary, Amkor,
CIL and their Affiliates and AICL will fund their own (and
their respective Affiliates') research and development
efforts.
14. ARTICLE XIV - LIABILITY LIMITATIONS
14.1 Exclusion of Damages
EXCEPT AS PROVIDED IN ARTICLE 11, IN NO EVENT SHALL ANY PARTY
BE LIABLE TO ANY OTHER PARTY HEREUNDER FOR ANY INDIRECT,
SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON
BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT
LIABILITY, OR OTHERWISE, AND WHETHER OR NOT THE PARTY AGAINST
WHOM LIABILITY IS SOUGHT HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGE.
15. ARTICLE XV - TERM
15.1 The Agreement will have an initial term of five (5) years,
commencing on the Effective Date, and thereafter may be
terminated by any Party upon five (5)
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years' prior written notice at any time after the fifth (5th)
anniversary of the Effective Date.
15.2 In addition, the Agreement will be terminable with respect to
a Party in the event of a material breach of such Party which
is not cured within thirty (30) calendar days from receipt of
a notice of such breach by any non-breaching Party.
15.3 Any Party may terminate this Agreement upon one hundred eighty
days' written notice to the other Parties if a Bankruptcy
Event occurs with respect to another Party that is not an
Affiliate of the terminating Party.
15.4 In the event of termination, the Parties shall mutually
determine the most reasonable disposition of any
work-in-progress and other Packaging Services so as to best
fulfill the requirements of the Customer Contracts.
16. ARTICLE XVI - ARBITRATION
16.1 Arbitration of Disputes
16.1.1 Any controversy, dispute or claim arising out of, in
connection with, or in relation to the
interpretation, performance or breach of this
Agreement, including any claim based on contract,
tort or statute, shall be settled, at the request of
any Party, by arbitration conducted in Santa Clara,
California, or such other location upon which the
Parties may mutually agree, before and in accordance
with the then-existing Rules of Commercial
Arbitration of the American Arbitration Association
("AAA"), and judgment upon any award rendered by the
arbitrator may be entered by any state or federal
court having jurisdiction thereof.
16.1.2 The Parties hereby consent to the jurisdiction of an
arbitration panel and of the courts located in, and
venue in, Philadelphia, Pennsylvania, with respect to
any dispute arising under this Agreement.
16.1.3 Any controversy concerning whether a dispute is an
arbitrable dispute hereunder shall be determined by
one or more arbitrators selected in accordance with
Section 16.3.
16.1.4 The Parties intend that this agreement to arbitrate
be valid, specifically enforceable and irrevocable.
16.2 Initiation of Arbitration
A Party may initiate arbitration hereunder by filing a written
demand for arbitration with each other Party to the dispute in
accordance with Section 17.10 and with the AAA. Arbitration
hereunder shall be conducted on a timely, expedited basis.
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16.3 Selection of Arbitrator
Any arbitration shall be held before a single arbitrator, who
shall be selected in accordance with the procedures of the
AAA, and shall be a member of the Large Complex Case Panel
with significant intellectual property (patent and copyright)
law and semiconductor manufacturing experience. If the Parties
are unable to agree on a single arbitrator, then each of AICL
and Amkor shall select an arbitrator and such arbitrators
shall select a third arbitrator. Such arbitration shall then
be held before such three (3) arbitrators.
16.4 Awards
The arbitrator(s) may, in its discretion award to the
prevailing Party in an arbitration proceeding commenced
hereunder, and the court shall include in its judgment for the
prevailing Party in any claim arising hereunder, the
prevailing Party's costs and expenses (including expert
witness expenses and reasonable attorneys' fees) of
investigating, preparing and presenting such arbitration claim
or cause of action.
17. ARTICLE XVII - MISCELLANEOUS
17.1 Confidentiality
The Parties will enter into appropriate non-disclosure
agreements respecting the treatment of their respective
confidential technical and business information and
confidential information disclosed to any of them by third
Parties. AICL acknowledges that this Agreement may be required
to be filed or provided as supplemental information to the
U.S. Securities and Exchange Commission. In the event of any
such filing or provision, ATI and its Affiliates agree to use
reasonable efforts to seek confidential treatment for portions
of such documents that ATI and its Affiliates conclude in
their discretion are appropriate subjects for such treatment.
17.2 Audits
AICL will permit Customers to visit the Qualified Facilities
and to conduct audits of AICL in accordance with industry
norms and the terms and conditions specified in the Customer
Contracts.
17.3 Assignability
AICL will not be permitted to assign, directly or indirectly,
any of its obligations or duties under the Agreement, without
the consent of the other Parties hereto. This Agreement shall
be binding on, and inure to the benefit of, all successors and
assignees of the Parties.
17.4 Integration
This Agreement will supersede all contracts and agreements
currently existing between the Parties with respect to the
terms hereof. In the event of any
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inconsistency between this Agreement and any existing
agreement or contract between the Parties, the terms of this
Agreement shall prevail.
17.5 Force Majeure
No Party shall be liable for delay in performance or failure
to perform, in whole or in part, due to labor dispute, strike,
war or act of war, insurrection, riot, civil unrest, act of
public enemy, fire, flood, or other acts of God, or the acts
of any governmental authority, or other causes beyond the
control of such Party. The Party experiencing such cause or
delay shall immediately notify the other Parties of the
circumstances which may prevent or significantly delay its
performance hereunder, and shall use its best efforts to
alleviate the effects of such cause or delay.
17.6 Export Laws
This Agreement is subject to all applicable United States laws
and regulations relating to exports and to all administrative
acts of the U.S. Government pursuant to such laws and
regulations. No Party shall export or re-export, directly or
indirectly, any technical data or semiconductor materials in
violation of the aforementioned export laws.
17.7 Survival
The rights and obligations of those sections which by their
nature survive, including, but not limited to Articles , VIII,
X, XI, XII, XIII and XIV of this Agreement, shall survive and
continue after any expiration or termination of this Agreement
and shall bind the Parties and their legal representatives,
successors and assigns.
17.8 Entire Agreement
This Agreement supersedes all prior and contemporaneous
agreements and representations made with respect to the same
subject matter and contains the entire agreement between the
Parties with respect to the subject matter hereof and shall
not be modified except by an instrument in writing signed by
duly authorized representatives of each Party.
17.9 Governing Law
This Agreement and all questions relating to its validity,
interpretation, and enforcement shall be governed by and
construed, interpreted, and enforced in accordance with the
laws of the State of California without regard to that state's
choice of laws. The UN Convention on the International Sale of
Goods shall not apply to this Agreement, or any transactions
contemplated hereby or thereby.
17.10 Notices
All notices, requests, demands, waivers, and other
communications required or permitted hereunder shall be in
writing and shall be deemed to have been duly
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given: (i) when delivered by hand or confirmed facsimile
transmission; (ii) one (1) day after delivery by receipted
overnight delivery; or (iii) four (4) days after being mailed
by certified or registered mail, return receipt requested,
with postage prepaid to the appropriate address set forth at
the beginning of this Agreement or to such other person or
address as any Party shall furnish to the other Parties in
writing pursuant to the above.
17.11 Counterparts
This Agreement may be executed in counterparts which taken
together shall constitute one and the same document.
INTENDING TO BE LEGALLY BOUND, the Parties hereto have caused this Agreement to
be executed as of the date first above written.
AMKOR TECHNOLOGY, INC. ANAM INDUSTRIAL CO., LTD.
By: By:
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxxxx Name: In Xxx Xxxxx
--------------------------- ---------------------------
Title: CFO & Secretary Title: President
--------------------------- ---------------------------
AMKOR ELECTRONICS, INC. C.I.L. LIMITED
By: By:
--------------------------- ---------------------------
Name: Xxxxx X. Xxxxxxxx Name: Xxxxxxx XxXxxxxx
--------------------------- ---------------------------
Title: Executive Vice President Title:
--------------------------- ---------------------------
ANAM USA, INC.
By:
---------------------------
Name: Hong Xxxx Xxxxx
---------------------------
Title: President
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