Exhibit 4.35
CONFIDENTIAL TREATMENT REQUESTED: THE PORTIONS OF THIS AGREEMENT MARKED BY X'S
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
112602
License Reference No. L014208
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AMENDMENT No. 1 ("Amendment 1") dated as of November 26, 2002 to the
Agreement (L014208) with an effective date of January 1, 2001 (hereinafter
referred to as "Agreement") between INTERNATIONAL BUSINESS MACHINES CORPORATION,
a New York corporation ("IBM"), and CHARTERED SEMICONDUCTOR MANUFACTURING, LTD.,
a corporation of Singapore ("CHRT").
WHEREAS, the parties desire to amend the Agreement to extend the licenses
granted thereunder to certain subsidiaries licensed pursuant to the SF PROCESS
DEVELOPMENT AND COST SHARING AGREEMENT ("JDA") dated November 26, 2002 between
the parties and to exclude certain revenues for calendar years 2003 through 2005
from the royalty calculations; and
WHEREAS, the parties further wish to extend the term of the Agreement
through December 31, 2010 and wish to convert the running royalty license to a
fixed payment agreement for the period from January 1, 2006 through December 31,
2010.
NOW, THEREFORE, in consideration of the premises and covenants herein
contained, the parties agree to amend the Agreement as follows:
1) In Sections 1.1.1, 1.10, 6.1 and 7.1 change "December 31, 2005" to
--December 31, 2010--.
2) Add the following new Sections 1.13, 1.14 and 1.15:
--1.13 "Forty Percent Subsidiary" with respect to a party, means a
corporation, company or other entity where at least forty percent
(40%) of whose outstanding shares or securities (such shares and
securities representing the right to vote for the election of
directors or other managing authority) are, now or hereafter, owned or
controlled, directly or indirectly, by such party; or, if such entity
does not have outstanding shares or securities, as may be the case in
a partnership, joint venture or unincorporated association, or other
entity, at least forty percent (40%) of whose ownership interest
representing the right to (i) make the decisions for such partnership,
joint venture, or unincorporated association, or other entity, or (ii)
vote for, designate, or otherwise select members of the highest
governing decision-making body, managing body or authority for such
partnership , joint venture, unincorporated association, or other
entity, is, now or hereafter, owned or controlled, directly or
indirectly, by
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such party; provided, however, that any of the foregoing entities
shall be a Forty Percent Subsidiary only if:
(a) in the case where such party is CHRT, such entity is a Chartered
Jointly Owned Facility that received Specific Results and/or IBM
Background Know-How from CHRT pursuant to the terms of the JDA,
and/or Copper/Related FEOL Technology pursuant to the terms of
the "Copper/Related FEOL Technology License Agreement" between
the parties of November 26, 2002 ("TLA"); and in the case where
such party is IBM, such entity received Specific Results and/or
CHRT Background Know-How from IBM pursuant to the terms of the
JDA, and
(b) such party has the right and power to grant the licenses and
other rights to the other party and its Subsidiaries of the scope
granted under all patents owned or controlled by said entity and
the written notice required in Section 2.6 below includes a
representation and warranty by such party that it has the right
and power to grant the licenses and other rights to the other
party and its Subsidiaries of the scope granted under all patents
owned or controlled by said entity, and
(c) such entity shall be considered a Forty Percent Subsidiary, and
shall be entitled to retain the licenses and other benefits
provided by this Agreement to such Forty Percent Subsidiary, only
so long as such ownership or control exists, and
(d) and for only so long as, such entity and such party are in
compliance with applicable terms of the JDA, including all the
provisions of Section 7.6 subject to the wind down provisions
thereof.
1.14 "Wafer Product Revenue" shall mean the aggregate of the total
revenue received by CHRT, CHRT Subsidiaries, and the Licensed Revenue
Percentage of the total revenue for each CHRT Forty Percent Subsidiary
as designated by CHRT pursuant to Section 2.6, from (i) the sale of
CHRT Licensed Products to IBM pursuant to the manufacturing agreement
referenced in the Refundable Cross Deposit Agreement of November 26,
2002 between the parties, or other sales of CHRT Licensed Products to
IBM, and (ii) the subsequent sale to third parties of CHRT Licensed
Products, originally purchased by CHRT from IBM pursuant to the
manufacturing agreement referenced in the Refundable Cross Deposit
Agreement between the parties, or other purchases of CHRT Licensed
Products from IBM. For example, if the Licensed Revenue Percentage for
a given CHRT Forty Percent Subsidiary is 45%, 45% of its revenues from
(i) and (ii) above would be counted toward Wafer Product Revenue.
1.15 The terms "Chartered Jointly Owned Facilities", "Specific
Results", and "Background Know-How" shall have the meanings ascribed
to such terms in the JDA.--.
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3) In Section 1.12, line 1, delete "one" and insert -an--; line 5, delete "the
CHRT Elected Country" and insert -each CHRT Elected Country--.
4) In Section 2.1.1, delete "one CHRT Elected Country" and insert --two CHRT
Elected Countries--.
5) Add the following new Sections 2.6, 2.7 and 2.8:
--2.6 Each party shall be permitted to irrevocably designate Forty
Percent Subsidiaries at any time during the term of this Agreement
provided that such party provides written notice to the other party
specifying the name of the Forty Percent Subsidiary and all the
conditions in Section 1.13 are satisfied as of the date the other
party received such written notice. CHRT shall have the right to
designate up to four (4) CHRT Forty Percent Subsidiaries, and IBM
shall have the right to designate up to two (2) IBM Forty Percent
Subsidiaries. In such written notice the designating party shall
specify the Forty Percent Subsidiary, and elect between one of the
following: (a) a sublicense that would apply to only that percentage
of such Forty Percent Subsidiary's total revenue from sales of
Licensed Products attributed to the party, or (b) a sublicense that
would apply to the total revenue of such Forty Percent Subsidiary.
Such elected percentage of revenue shall be referred to as the
"Licensed Revenue Percentage" and shall be fixed for the term of this
Agreement for such Forty Percent Subsidiary.
2.7 A Forty Percent Subsidiary designated by a party pursuant to
Section 2.6 shall be treated as if it were a Subsidiary, in accordance
with the terms and conditions of this Agreement (except where "Forty
Percent Subsidiary" is separately specified), as of the date the other
party received the written notice and only for so long as all the
conditions in Section 1.13 remain in effect.
2.8 The terms and conditions set forth in Section 3 shall apply to
Forty Percent Subsidiaries designated pursuant to Section 2.6 above,
with the exception that Forty Percent Subsidiaries shall have no right
to sublicense the party's other Subsidiaries (including other such
designated Forty Percent Subsidiaries).--.
6) In Section 5.1, line 2, after "herein" insert --for the period from January
1, 2001 through December 31, 2005--.
7) In Section 5.1, line 6 delete "(where" and insert therefor --(for calendar
years 2001 and 2002,--.
8) In Section 5.1, line 10, after "1934" insert --; and for calendar years
2003 through 2005, "Net Revenue" or "NR" means (total revenue for a
calendar year based on CHRT's net revenue as such term is used and reported
in CHRT's periodic filing with the United States Securities and Exchange
Commission as required by the Securities Exchange Act of 1934, plus any
Licensed Revenue Percentage of the
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total worldwide revenue for a calendar year of each CHRT Forty Percent
Subsidiary designated pursuant to Section 2.6, as reported by the auditor
of accounts for such Forty Percent Subsidiary using Generally Accepted
Accounting Principles (GAAP) as such entity utilizes for its own income
reporting purposes, which shall be provided to IBM by CHRT on an annual
basis until January 1, 2006 as part of the report set forth in Section
5.1.2) less any Wafer Product Revenue in the calendar year--.
9) In Section 5.1.2(a), before "the" insert --(i)--.
10) In Section 5.1.2(a), after "and" insert:
--(a)(ii) the Wafer Product Revenue for the applicable accounting
period; and--
11) In Section 5.1.2(b), after "due" insert:
--(including all royalties based on the Licensed Revenue Percentage of
the total worldwide revenue for each CHRT Forty Percent Subsidiary
designated by CHRT in accordance with Section 2.6 and Section 5.1)--
12) In Section 5.1.2, delete the second paragraph which begins with "Upon
Payment" in its entirety.
13) Add a new Section 5.1.3 as follows:
--5.1.3 As additional consideration for the licenses and other rights
granted by IBM to CHRT herein for the period from January 1, 2006
through December 31, 2010, CHRT shall pay to IBM the annual payments
specified below, no portion of which shall be refundable, as follows:
Date Due Amount Due
-------- ----------
xxxxx xxxxx
Upon payment of each payment specified above in Sections 5.1.1 and
5.1.3, the license, immunities and other rights granted to CHRT in
this Agreement shall be fully paid up for CHRT Licensed Products made,
used, imported, leased, offered for sale, sold or otherwise
transferred pursuant to the terms of this Agreement in the calendar
year in which such payment is made.--.
14) In Section 5.3, line 1, delete "an installment" and insert -any--.
15) In Section 5.3.1, line 1, delete "installment".
16) In Section 5.3.2, line 4, delete "installments" and insert - payments--.
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17) Add a new Section 5.5 as follows:
--5.5 CHRT shall keep records in accordance with applicable generally
accepted accounting principles and in sufficient detail to permit the
determination of royalties due to IBM from CHRT for sublicensed CHRT
Forty Percent Subsidiaries. Such records shall include, but not be
limited to, detailed records supporting the information provided under
Section 5.1.2 for such Forty Percent Subsidiaries. Such records shall
be kept for six (6) years following the submission of the related
report.
Upon written notice for an audit, CHRT shall permit an independent
"big four" accounting firm designated by IBM to examine, during
ordinary business hours, records and other materials of such CHRT
Forty Percent Subsidiaries as may be reasonably necessary for
verifying royalties due to IBM from CHRT for sublicensed CHRT Forty
Percent Subsidiaries. Such auditor shall not report to IBM any
confidential information of CHRT and/or such Forty Percent Subsidiary
other than that reasonably necessary for such verification.
Each party shall pay the costs that it incurs in the course of the audit.
However, in the event that the audit establishes underpayment greater than ten
percent (10%) of the royalties due, CHRT shall reimburse IBM for the cost of the
audit; provided, however, such reimbursement shall not exceed the amount of the
underpayment.--.
This Amendment may be executed by the parties in one or more counterparts, each
of which shall be an original and all of which shall constitute one and the same
instrument.
This Amendment 1 shall be effective as of January 1, 2003.
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Except as amended by this Amendment 1, all the rights, obligations and
liabilities of the parties under the Agreement shall otherwise remain in full
force and effect as set out therein, provided, however, that if any part of this
Amendment 1 is inconsistent with any part of the Agreement, this Amendment 1
shall prevail.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment 1 to be
duly signed as of the date first above written.
CHARTERED SEMICONDUCTOR INTERNATIONAL BUSINESS
MANUFACTURING LTD. MACHINES CORPORATION
By /s/ Chia Song Hwee By /s/ Xxxxxx Xxxxxxxxx
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Chia Song Hwee Xxxxxx Xxxxxxxxx
President and CEO Vice President
Date____________________ Date_____________________
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