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INTEL CONFIDENTIAL
EXHIBIT 10.8
MASTER DEVELOPMENT, PURCHASING AND LICENSE AGREEMENT
BETWEEN
INTEL CORPORATION AND MARVELL SEMICONDUCTOR, INC.
This "Agreement" dated May 19, 2000 ("Effective Date") is by and between Marvell
Semiconductor, Inc., a California corporation, and its Affiliates, ("Marvell")
and Intel Corporation, a Delaware corporation, and its Affiliates, ("Intel").
RECITALS
A. Marvell manufactures and sells, among other things, data storage channel
controllers, Fast Ethernet Phy chips for switches and Gigabit Phy chips.
Intel manufactures and sells, among other things, networking devices,
including servers, network interface cards, routers, hubs, LAN switches,
Ethernet controller chips, network silicon and network processors.
B. The parties wish to set forth in this Agreement the terms and conditions
under which, during the term of this agreement (i) Intel will have the
right to purchase from Marvell certain * * * * * chips known as * * * *
* chips; (ii) Marvell will integrate its Gigabit Phy chip with Intel's *
* * * * and * * * * *only to Intel; and (iii) Marvell may utilize * * *
* * as a * * * * * source for the * * * * *.
AGREEMENT
Now therefore in consideration of the covenants stated herein, and for other
good and valuable consideration, the receipt and sufficiency of which the
parties acknowledge, the parties agree as follows:
1. DEFINITIONS
In addition to terms defined elsewhere in this Agreement, the following
capitalized terms will have the following meanings:
1.1 "Affiliate" means any entity that is directly or indirectly
controlled by, under common control with or that controls the
subject entity, where control has the meaning ascribed to such
term by the United States Securities and Exchange Commission.
1.2 "Change of Control" of a party shall be deemed to have occurred
if:
i) That party merges with or into a third party whether or
not the party is the surviving entity following such
merger and as a result of such merger holders of the
party's securities prior to the merger beneficially hold
less than 51% of the capital stock of the surviving entity
of such merger; or
ii) That party becomes a Subsidiary of a third party; or
iii) A third party acquires all or substantially all of that
party's assets.
For the purposes of this definition of Change of Control, in
connection with Marvell, "party" means Marvell Technology Group,
Ltd., a Bermuda corporation, or Marvell Semiconductor, Inc., or
both.
1.3 "FCS" or First Customer Shipment means the date on which Intel
first makes generally available for purchase * * * * *, which
shall be on or about the date defined in Exhibit D, Attachment #3
at III-8, including additional time required for potential
additional
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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steppings of the * * * * * required to meet the specifications
defined in Exhibit D, as required by Attachment #3 at III-7 of
Exhibit D.
1.4 "* * * * *" means a * * * * *chip in which the Intel * * * * *
and the Marvell Gb Phy are * * * * *.
1.5 "Intel * * * * *" means the * * * * * that Intel has developed.
1.6 "Intel * * * * * Technology" means the netlist, cell libraries,
tools, test vectors, other documentation and specific
deliverables from Intel to Marvell listed in Attachment #3 of
Exhibit D for the Intel * * * * * that Marvell may reasonably
need to integrate * * * * * with the Intel * * * * *. Intel * * *
* * Technology shall not be defined to include the Intel * * * *
* design itself.
1.7 "Intellectual Property Rights" means, collectively, Patents,
Trade Secrets, Copyrights, mask works and all other intellectual
property rights and proprietary rights, excluding trademarks,
whether arising under the laws of the United States or any other
state, country or jurisdiction, now or hereafter existing. For
purposes of this Agreement: (a) "Patents" means all patent rights
and all right, title and interest in all letters patent or
equivalent rights and applications, including any reissue,
extension, division, continuation, or continuation-in-part
applications throughout the world, now or hereafter existing; (b)
"Trade Secrets" means all right, title and interest in all trade
secrets and trade secret rights arising under common law, state
law, federal law or laws of foreign countries, now or hereafter
existing; and (c) "Copyrights" means all copyrights, and all
right, title and interest in all copyrights, copyright
registrations and applications for copyright registration,
certificates of copyright and copyrighted interests throughout
the world, and all right, title, and interest in related
applications and registrations throughout the world, now or
hereafter existing.
1.8 "* * * * *" means a * * * * * on which the functionality of a * *
* * * is * * * * * in the form a * * * * *.
1.9 "* * * * *" means * * * * *.
1.10 "MFC" as it pertains to either the * * * * * or the * * * * *
shall have the respective meanings set forth on Exhibit A
attached hereto.
1.11 "* * * * *" means the code name for the project that will manage
and produce the * * * * *.
1.12 "* * * * *" means a * * * * * that connects a * * * * * or other
computing device to a network.
1.13 "Marvell Gigabit Phy" or "* * * * *" means the stand-alone
Ethernet physical layer chip developed by Marvell designed to
operate at Gigabit speed, otherwise known as the "Alaska(TM)"
Chip and all fixes and revisions to such chip or updates with
substantially similar architecture thereto.
1.14 "Marvell Integration Technology" means the cell libraries,
technical documentation and specific deliverables from Marvell to
Intel listed in Attachment #3 of Exhibit D that Intel may
reasonably need to * * * * * Intel * * * * * elements to permit
Marvell to * * * * * the * * * * *. Marvell Integration
Technology shall not be defined to include the * * * * * design
itself.
1.15 "Phy" means physical layer device.
1.16 "SOW" means statement of work, a document that reflects a project
or set of projects to be undertaken by both parties.
1.17 "Subsidiary" means with respect to a party any corporation,
partnership or other entity, now or hereafter existing, (i) more
than percent (50%) of whose outstanding shares or securities
entitled to vote for the election of directors or similar
managing authority is directly or indirectly owned or controlled
by such party or (ii) that does not have
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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outstanding shares or securities but more than fifty percent
(50%) of whose ownership interest representing the right to make
the decisions for such entity is directly or indirectly owned or
controlled by such party.
1.18 "Support" means telephone, e-mail and on-site
consultation/support, plus notification of and access to Updates,
all as more specifically set forth in attached Exhibit F.
1.19 "Updates" means bug fixes, additional performance improvements,
cost and/or power reduction enhancements.
2 PURCHASE RIGHTS; SUPPORT; PRODUCT MARKINGS
2.1 Purchase Rights. During the term of this Agreement, Intel will have the
right to purchase from Marvell * * * * *and * * * * * on the terms and
conditions set forth in Exhibit A and Exhibit B.
2.2 Support. Marvell shall provide Support to Intel on the terms and
conditions as set forth in Exhibit F.
2.3 Product Marking. The * * * * * will be marked and branded as * * * * *,
as set forth in Exhibit E.
3 DEVELOPMENT OF * * * * *
3.1 Marvell agrees to use commercially reasonable efforts to develop the * *
* * * on the timetable and otherwise in accordance with the SOW attached
as Exhibit D. Intel agrees to provide to Marvell the Intel * * * * *
Technology as set forth in the SOW for the purposes of completing such
development. In addition, upon Intel's written request, Marvell agrees
to use commercially reasonable efforts to develop an enhanced version of
the * * * * * based on next generation Intel * * * * * Technology based
on a new SOW, which will be developed and agreed upon by both parties
for * * * * *, assuming the * * * * * and the * * * * * NRE and QA
conformance expenses.
3.2 Subject to the rights to terminate for convenience provided for in
Section 11 hereof, Intel agrees to use its commercially reasonable
efforts to achieve volume sales of the * * * * *.
4 OWNERSHIP; LICENSES; RESTRICTIONS
4.1 Ownership.
(a)Separate Ownership. Marvell retains ownership of the Marvell
Integration Technology (and all Intellectual Property Rights therein)
and all portions of the * * * * * separately developed by Marvell (and
all Intellectual Property Rights therein) and Intel will retain
ownership of the Intel * * * * * Technology (and all Intellectual
Property Rights therein) and all portions of the * * * * * separately
developed by Intel (and all Intellectual Property Rights therein).
(b)Joint Ownership (Other than of Patentable Inventions). Other than
with respect to jointly developed patentable inventions (which are
addressed below), Intel and Marvell will jointly own any portion of the
* * * * * (and all Intellectual Property Rights therein) that is jointly
developed in such a manner that, under applicable law, the rights
therein (including Intellectual Property Rights therein) are jointly
owned, but with no rights of accounting therefor. With respect to
copyrightable works, the parties do not intend that their contributions
be merged into inseparable or interdependent parts of a unitary whole so
that joint copyright ownership results. To the extent necessary to
effect such joint ownership, each party hereby assigns to the other
party an equal and undivided one-half interest in any such jointly
developed technology (and all Intellectual Property Rights, excluding
Patent rights, therein.) Each party agrees to cooperate with the other
and to execute any document reasonably necessary to carry out the intent
of this Section, including developing a list of any jointly developed
Patentable Inventions, which the
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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parties agree shall be the sole and definitive source to document the
existence of any such jointly owned Patentable Inventions.
(c)Patentable Inventions.
(i) Filing. To the extent there are any patentable inventions
jointly developed hereunder, if the invention relates primarily to a
Gigabit Phy chip, Marvell will have the first option to file the patent
application thereon under its own name. If the invention relates
primarily to a * * * * *, Intel will have the first option to file the
patent application thereon under its own name. If the relevant party
does not exercise its rights thereunder within the earlier of six months
or 30 days before any applicable statutory bar date, the other party
shall have the right to file such applications at its own expense. The
filing party shall, at its own cost and subject to commercially
reasonable efforts, use outside counsel to prosecute such applications
to obtain the broadest possible coverage permitted by law, and shall
permit the other party an opportunity to review and comment on any such
application prior to filing. No application shall be permitted to issue
or go abandoned without providing the other party an opportunity to
review the application and its prosecution history. In the event the
filing party elects an application to finally go abandoned, the other
party shall be given notice of such decision and shall thereafter have
the opportunity to take over prosecution of such application at its own
expense.
(ii) Ownership; Licenses under such Patents. The filing party
shall be the owner of record for any such application and the other
party shall have a fully paid-up, world-wide, nonexclusive irrevocable
license under any Patents which may issue thereunder to make, use, have
made, sell and offer for sale, and import any product or service
anywhere in the world.
4.2 Licenses.
(a)License to Marvell. Intel hereby grants to Marvell, under all of
Intel's Intellectual Property Rights embodied in the Intel * * * * *
Technology, a non-exclusive, nontransferable, nonsublicensable,
royalty-free, revocable (for material breach under Section 11.4 hereof)
worldwide license (i) to internally use, copy, have copied, modify and
have modified the Intel * * * * * Technology solely for the purposes of
developing and supporting the * * * * * solely for the benefit of Intel
(ii) and to * * * * * only to Intel the * * * * *. In no event may
Marvell exercise the foregoing license to * * * * * any Intel * * * * *
Technology other than for Intel's benefit. Marvell will have no right to
* * * * * or * * * * * chips for its own use, or to sell them to anyone
other than Intel. The parties acknowledge that nothing in the foregoing
is intended to restrict Marvell from testing and validating * * * * *
chips to the extent necessary for the purpose of fulfilling its
obligations hereunder.
(b)License to Intel. Marvell hereby grants to Intel under all of
Marvell's Intellectual Property Rights embodied in the Marvell
Integration Technology, a non-exclusive, nontransferable,
nonsublicensable, royalty-free, revocable (for material breach under
Section 11.4 hereof) worldwide license to internally use, copy, have
copied, modify and have modified the Marvell Integration Technology
solely for the purposes of * * * * * Intel * * * * * elements to such
form as may be required for Marvell to develop * * * * * the * * * * *.
In no event may Intel exercise the foregoing license to * * * * * any
Marvell Integration Technology other than for the foregoing purpose.
(c)Restriction. From the Effective Date through the end of the second
calendar quarter after FCS (the "Restriction Period"), Marvell agrees
not to deliver or license any of the Marvell Integration Technology to *
* * * * under an agreement that would permit the * * * * * to integrate
the Marvell Integration Technology with a * * * * * for the purposes of
developing a * * * * *, and further agrees during the Restriction Period
not to design or otherwise enter into any work on any chip that
integrates a Marvell Gigabit Phy with a * * * * * for the purpose of
developing a * * * * * other than with Intel. Intel shall provide
Marvell with * * * * * device. Upon the receipt by Marvell of * * * * *
, the terms of
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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restriction against Marvell set forth in this Section 4.2(c) shall be of
no further force or effect.
(d)Have Made Rights. For purposes of exercising its * * * * * rights
granted under Section 4.2(a), Marvell may deliver Intel * * * * *
Technology only to those subcontractors approved in advance in writing
by Intel, which approval shall not be unreasonably withheld. For the
purposes of exercising its * * * * * rights granted under Section
4.2(b), Intel may deliver Marvell Integration Technology only to those
subcontractors approved in advance in writing by Marvell, which approval
shall not be unreasonably withheld, and then only for the purpose of
completing Intel's obligations hereunder, subject to the further
following provisions:
(i) Intel may deliver to a subcontractor only those portions of
the Marvell Integration Technology necessary for the subcontractor to
complete the relevant subcontracted project.
(ii) The subcontractor and any employee of such subcontractor
working on the subcontracted project shall be obligated to maintain the
confidentiality of the Marvell Integration Technology on terms
substantially as restrictive as the confidentiality provisions of the
CNDA identified in this Agreement and may use the Marvell Integration
Technology solely for the purposes of completing the subcontracted
project.
(iii) Prior to starting the subcontracted project, the
subcontractor and any employee of such subcontractor working on the
subcontracted project must each sign a confidentiality agreement in a
form approved in advance by Marvell.
(e)Fab Limitations. Marvell shall have the * * * * * only at * * * * *
or at such other fab as the parties may mutually agree upon in writing.
(f)Future Rights * * * * *. Upon Intel's advanced written request, but
no sooner than * * * * *, Marvell agrees to enter into good faith
negotiations to * * * * * than that of * * * * * (or other approved * *
* * *) and provided further that * * * * * design rules and electrical
parameters are substantially similar to those of * * * * * (or other
approved * * * * *) to justify the porting of the design to such * * * *
*.
5 CONFIDENTIALITY
5.1 Confidentiality and Information Exchange. The parties acknowledge and
agree that the Intel * * * * * Technology and the Marvell Integration
Technology constitute the Confidential Information of the disclosing
party. Except to the extent disclosure is permitted for * * * * * rights
under Section 4.2(d) hereof, each party agrees to maintain the
confidentiality of the other's Confidential Information, as well as any
jointly owned technology, as described in Section 4.1(b), subject to and
in accordance with the terms and conditions of the form of Corporate
Non-Disclosure Agreement between the parties, number * * * * * dated * *
* * * (the "CNDA"), the terms of which are incorporated herein by this
reference, and in accordance with the terms of this Agreement. The
parties agree that any of the foregoing information shall be deemed
Confidential Information without the need for express identification
under the requirements of CNDA, and that no CITR is required.
5.2 Confidentiality Regarding Agreement.
(a)The parties agree that except as may be required by law, regulation,
direction of any governmental or judicial or administrative agency, and
except as otherwise expressly permitted by this Section 5.2, any
disclosure of the existence of or any of the terms or the exhibits of
this Agreement or the relationship between the parties shall be made
only with the prior written agreement of both parties.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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(b) The parties agree that they shall cooperate in good-faith to
accommodate the interests of each party in obtaining confidential
treatment of the terms and conditions of this Agreement and the exhibits
hereto from the U.S. Securities and Exchange Commission (the "SEC") in
connection with the Company's initial public offering of its shares of
Common Stock (the "IPO") pursuant to the Securities Act of 1933, as
amended, (the "Act").
(c)Notwithstanding anything to the contrary set forth herein, nothing in
this Section 5 shall be deemed to provide Intel with an independent
right to block, stop, slow or otherwise prevent or hinder the Company's
IPO.
(d)Marvell agrees that it will provide Intel with drafts of any
documents or other filings in which Marvell is required to disclose this
Agreement or any other confidential information subject to the terms of
this Agreement. With respect to such documents and filings, * * * * *,
Marvell shall deliver such drafts to Intel at least * * * * * business
days prior to the filing or disclosure thereof and will make any changes
to such materials as reasonably requested by Intel to the extent
permitted by law or any rules or regulations of the SEC, or any other
relevant regulatory agency, as applicable. * * * * *, (i) if
confidential treatment is requested by Intel, Marvell agrees to file
with the SEC a request for confidential treatment in form and substance
reasonably satisfactory to Intel and to use its commercially reasonable
efforts in responding to any SEC comments to obtain confidential
treatment of such items as Intel may request, (ii) Marvell shall
cooperate with Intel in seeking such confidential treatment, including
allowing Intel to participate in any telephonic conferences or other
communications relating to such confidential treatment with the SEC and
(iii) Marvell shall provide Intel with the opportunity to review and
comment on the initial request during the preparation thereof and the
responses to any SEC comments relating thereto, and for this purpose
Marvell (A) shall provide to Intel any such response of the SEC to such
request for confidential treatment within a reasonable period of time
after receipt thereof, but in no event more than * * * * * business * *
* * *following such receipt and (B) shall allow Intel a reasonable
period of time (not to exceed * * * * * business days (* * * * *
business * * * * *if the SEC response is received by Marvell on or after
the last day of the road show with respect to the Marvell IPO)) after
receiving such response from Marvell to respond thereto. The parties
agree that Marvell cannot guarantee that the SEC will grant any request
for confidential treatment. Subject to compliance with the provisions of
this paragraph (d), Marvell may disclose in its registration statement
on Form S-1 filed in connection with its IPO and in the exhibits thereto
such information, including filing such portions of this Agreement and
the exhibits hereto as the SEC may require, following exhaustion of the
confidential treatment procedure. For the purposes of this paragraph
(d), the term "exhaustion of the confidential treatment procedure" shall
mean that the examiner at the SEC has informed Marvell that it will be
unable to declare Marvell's registration statement effective at the time
requested by Marvell unless Marvell complies with the SEC's requirements
as to limitation of confidential treatment and Marvell has notified
Intel within * * * * * business * * * * * as provided for above. After
Marvell has been so informed by the examiner at the SEC and after Intel
has had * * * * * business * * * * * to respond thereto as provided for
above, Marvell shall * * * * * whether or not to comply with the SEC's
response. Marvell will not file this Agreement or the exhibits with any
governmental authority or any regulatory body, or disclose the identity
of Intel in any filing except as permitted above.
6 WARRANTIES
THE PARTIES MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, WITH RESPECT
TO ANY DELIVERABLES INCLUDING THE INTEL * * * * * TECHNOLOGY AND THE
MARVELL * * * * * TECHNOLOGY ("THE DELIVERABLES"). THE PARTIES
SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTY AGAINST
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHT OF ANY THIRD PARTY. THE
DELIVERABLES ARE PROVIDED AS IS, WITHOUT WARRANTY OF ANY KIND.
7 INDEMNIFICATION
7.1 Generally. Within the limitations set out in Section 7.2, either party
("Indemnitor") will defend or settle any suit or proceeding brought
against the other (the "Indemnitee") based upon a claim that
Indemnitee's use or distribution of any of Indemnitor's technology
(Intel * * * * * Technology or Marvell Integration Technology, as
relevant) ("Indemnified Technology") as authorized hereunder and in the
form provided hereunder infringes or misappropriates the Intellectual
Property Rights of a third party, and the Indemnitor will pay the
damages and costs finally awarded against Indemnitee up to such limits,
so long as: (i) Indemnitor is notified promptly in writing of such claim
(provided that the failure to give such notice shall only relieve
Indemnitor of its indemnity obligations hereunder if and to the extent
that such failure materially prejudices Indemnitor), or (ii) Indemnitor
controls the defense and settlement of the claim, and (iii) Indemnitee
cooperates reasonably, and gives all necessary authority, information
and assistance to Indemnitor. Notwithstanding the foregoing, an
Indemnitor is not obligated to defend or settle any such suit and is not
obligated to pay any such damages or costs, if such claim arises out of
(i) a combination of the Indemnified Technology with technology not
supplied by the Indemnitor, except where such has no noninfringing use
other than in such combination; (ii) a modification, alteration or
amendment of the Indemnitor's Indemnified Technology. The Indemnitee
shall use commercially reasonable efforts to modify and replace any
products that are alleged to be infringing.
7.2 Limitations. Indemnitor shall not be responsible for any costs, expenses
or compromise incurred or made by Indemnitee without Indemnitor's prior
written consent. If a suit or other proceeding has been filed, or it
reasonably appears that one will be filed or that an injunction shall
issue, Indemnitor shall promptly give written notice thereof to
Indemnitee. Indemnitor may, in its sole discretion and at its own
expense, procure for Indemnitee the right to continue using the
Indemnified Technology, replace it with a non-infringing technology or
modify it so that it becomes non-infringing.
7.3 Exclusive Remedy. Except with respect to any indemnification obligations
the parties may have under the Purchasing Terms attached as Exhibit B,
the foregoing states the entire obligation and exclusive remedy of each
of the parties hereto with respect to any alleged infringement of the
Intellectual Property Rights of any third party by any product,
technology or software furnished hereunder.
8 LIMITATION OF LIABILITY AND LIABILITY CAP
8.1 Limitation. A PARTY'S LIABILITY HEREUNDER SHALL BE LIMITED TO DIRECT,
OBJECTIVELY MEASURABLE DAMAGES. IN NO EVENT SHALL EITHER PARTY HAVE ANY
LIABILITY FOR ANY INDIRECT OR SPECULATIVE DAMAGES (INCLUDING, WITHOUT
LIMITING THE FOREGOING, PUNITIVE, CONSEQUENTIAL, INCIDENTAL AND SPECIAL
DAMAGES) INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, BUSINESS
INTERRUPTIONS AND LOSS OF PROFITS, IRRESPECTIVE OF WHETHER THE PARTY HAS
ADVANCE NOTICE OF THE POSSIBILITY OF ANY SUCH DAMAGES. THE PARTIES
ACKNOWLEDGE THAT THESE LIMITATIONS ON POTENTIAL LIABILITIES WERE AN
ESSENTIAL ELEMENT IN SETTING CONSIDERATION UNDER THIS AGREEMENT.
8.2 Liability Cap. IN NO EVENT SHALL EITHER PARTY'S LIABILITY UNDER THIS
AGREEMENT EXCEED THE GREATER OF * * * * *OR THE AMOUNT PAID BY INTEL
HEREUNDER. THE PARTIES AGREE THAT THE FOREGOING LIMIT * * * * *.
9 DISPUTE RESOLUTION.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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All disputes arising directly under the express terms of this Agreement
or the grounds for termination thereof shall be resolved as follows:
First, the senior management of both parties shall meet to attempt to
resolve such disputes. If the disputes cannot be resolved by the senior
management, either party may make a written demand for formal dispute
resolution. Within thirty (30) days after such written notification, the
parties agree to meet for one day with an impartial mediator and
consider dispute resolution alternatives other than litigation. If an
alternative method of dispute resolution is not agreed upon within
thirty (30) days after the one-day mediation, either party may begin
litigation proceedings.
10 AUDIT RIGHTS
Each party agrees to make and to maintain until the expiration of two
(2) years after the period to which they pertain, (i.e. during the time
Option #2 pricing in Exhibit A is utilized or during * * * * * of the *
* * * *), sufficient books, records and accounts regarding each party's
manufacturing and sales activities, including but not limited to setting
of the * * * * * by Intel or the Marvell * * * * * by Marvell in
accordance with Exhibit A, in order to confirm accurate calculation of
compensation hereunder and thereunder. A party shall have the right,
upon reasonable notice, during the other party's normal business hours,
and not more than once every twelve (12) months during the term hereof
and upon termination of this Agreement (and one-year thereafter) and
upon completion of all product deliveries and sales hereunder of the * *
* * * and the * * * * *, to appoint a nationally recognized certified
public accountant reasonably acceptable to the other party who agrees to
be bound to confidentiality protections acceptable to such other party
to examine such books, records and accounts, to verify such party's
reports on the amount of payments made to the other party under this
Agreement. Such auditor shall be instructed to report only as to whether
there is a discrepancy and if so, the amount of such discrepancy. If any
such examination discloses a shortfall or overpayment in the fees due to
the party, the appropriate party shall reimburse the other party for the
full amount of such shortfall or overpayment. Moreover, in the event the
amount of shortfall or overpayment exceeds the greater of * * * * * of
the amount due or paid, as the case may be, during the period under
review, the non-auditing party shall reimburse the auditing party for
the cost and expenses incurred in connection with such audit.
11 TERM AND TERMINATION
11.1 Term. Unless earlier terminated or extended on the terms of this Section
11, this Agreement will expire two years after the Intel FCS of the * *
* * *. The Purchasing Terms shall survive for * * * * * after expiration
of this Agreement.
11.2 Extension. By mutual written agreement, delivered at least 30 days
before the end of the Agreement, the parties may seek to extend this
Agreement.
11.3 Termination for Convenience.
(a) At anytime after FCS, Intel may terminate this Agreement without
cause at any time upon * * * * *advance written notice to Marvell.
During * * * * *, Intel shall * * * * *purchase from Marvell * * * * *
Intel's volume requirements for any * * * * * device in which a * * * *
* and a Gigabit Phy are integrated.
(b) Upon 30 days written notice to Marvell, Intel may terminate this
Agreement without cause, upon the failure to complete * * * * *of the *
* * * *within * * * * * days after the milestone date set forth at item
* * * * * in Attachment #3 in the attached Exhibit D for achieving the *
* * * *or no later than * * * * *.
(c) Upon 30 days written notice to Marvell, Intel may terminate this
Agreement without cause, upon the failure to complete * * * * * of the *
* * * *within * * * * * days after the milestone date set forth in item
* * * * *in Attachment #3 in the attached Exhibit D or no later than * *
* * *.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
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(d)Notwithstanding Section 11.3 (c), once a * * * * *has been made by
Intel and Marvell to* * * * *in accordance with the acceptance
requirements of item * * * * *of Attachment #4 from Exhibit D, Intel
shall: (i) be required to complete * * * * *; (ii) * * * * *to purchase
from Marvell * * * * * Intel's volume requirements for * * * * *in which
* * * * * a Gigabit Phy are * * * * * as provided for in Section 3 of
Exhibit A; and, (iii) * * * * * this Agreement under Section 11.3 (c)
above.
(e)Upon delivery of a notice of a termination for convenience pursuant
to this Section 11.3, the terms and conditions of restriction against
Marvell set forth in Section 4.2(c) hereof shall be of no force or
effect.
11.4 Termination for Cause. Subject to the parties exhaustion of the dispute
resolution process through mediation as set forth in Section 9, either
party may thereafter terminate this Agreement if:
11.4.1 the other party breaches any material provision of this Agreement (for
purposes of this Agreement, a failure to pay any material amounts owing
shall be considered a material breach) and fails to remedy such breach
within thirty (30) days after the receipt by the breaching party of the
non-breaching party's written notice of such breach (or, if such breach
cannot be remedied in that time, failure to commence remedial procedures
reasonably satisfactory to the non-breaching party within such 30-day
time frame); or
11.4.2 the other party dissolves, becomes insolvent or makes a general
assignment for the benefit of its creditors; or
11.4.3 a voluntary or involuntary petition or proceeding is commenced by or
against the other party under the Federal Bankruptcy Act or any other
statute of any state or country relating to insolvency or the protection
of the rights of creditors, or any other insolvency or bankruptcy
proceeding or other similar proceeding for the settlement of the other
party's debt is instituted; or
11.4.4 A receiver of all or substantially all of the property of the other
party is appointed.
Except as expressly limited by this Agreement, termination of this
Agreement under this Section 11 will be without prejudice to any other
remedy that may be available to a party under applicable law.
11.5 * * * * *
11.5.1 * * * * *.
11.5.2 Not later than thirty (30) days from the announcement of an intended
Change of Control, Marvell shall use commercially reasonable efforts to
have an officer of the acquiring company (1) send a written confirmation
to Intel that the acquiring company shall support its contractual
obligations and (2) meet with Intel management to discuss the transition
and commitment to the Marvell obligations.
11.5.3 In connection with a Change of Control, Intel will retain a right to
cancel any applicable SOW(s) without further obligations (other than
paying for that portion of the phase which is not then complete) and a
right to assign the Agreement pursuant to Section 12.7.
11.5.4 * * * * *.
11.5.5 Notwithstanding anything to the contrary set forth herein, nothing in
this Section 11.5 shall be deemed to provide Intel with an independent
right to block, stop, slow or otherwise prevent or hinder a Change of
Control Transaction.
11.6 Survival. The parties' rights and obligations under Sections 1, 2; 4.1;
* * * * *(but only to the extent necessary to support Marvell's
obligations under Section 2, if any); * * * * * (unless already expired
by its terms); 5; 6; 7; 8; 9; 10 (to the extent set forth therein); 12
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Master Agreement Page 9
10
(except for 12.1, if it has expired by its terms) will survive any
expiration or termination of this Agreement.
12 GENERAL PROVISIONS
12.1 * * * * *.
12.2 Notice. Unless otherwise agreed to by the parties, all notices required
under this Agreement shall be deemed effective when received and made in
writing by either (i) registered mail, (ii) certified mail, return
receipt requested, or (iii) overnight mail, addressed and sent to the
attention:
For Marvell: For Intel
Marvell Semiconductor, Inc. Intel Corporation
Attn: Chief Executive Officer 0000 Xxxxxxx Xxxxxxx Xxxx
000 Xxxxxxx Xxxxxx Xxxxx Xxxxx, XX 00000
Xxxxxxxxx, XX 00000 Attention: General Counsel
With a copy to: With a copy to:
Marvell Semiconductor, Inc. Intel Corporation
Attn: General Counsel Mail Stop JF3-149
000 Xxxxxxx Xxxxxx 0000 XX 00xx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxxxxx, Xxxxxx 00000
Attn: Post Contract Management
Either party may give written notice of a change of address and, after
notice of such change has been received, any notice or request shall
thereafter be given to such party at such changed address.
12.3 Payment Address: Payments to be made hereunder shall be addressed and
sent to the attention:
For Marvell:
Marvell Semiconductor, Inc.
000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000
Either party may give written notice of a change of address and, after
notice of such change has been received, any notice or request shall
thereafter be given to such party at such changed address.
For the purposes of administering the Gross Margin Sharing, Marvell will
provide the address for the packaging house at a later date.
12.4 Independent Contractor. Each party is and shall remain an independent
contractor with respect to all performance rendered pursuant to the
terms of this Agreement and exhibits hereto. Neither party nor any
employee thereof shall be considered an employee or agent of the other
party for any purpose and shall have no authority to bind or make
commitments on behalf of such other party for any purpose and shall not
hold itself or themselves out as having such authority. Nothing within
this Agreement shall be construed as establishing a partnership, joint
venture, or any other entity jointly owned or controlled by the parties.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Master Agreement Page 10
11
12.5 Compliance with Laws. Each party shall, at its own expense, comply with
any governmental law, statute, ordinance, administrative order, rule or
regulation relating to its duties, obligations and performance under
this Agreement and the exhibits hereto and shall procure all licenses
and pay all fees and other charges required thereby.
12.6 Force Majeure. Neither party shall be held liable for failure to fulfill
its obligations other than payment obligations under this Agreement, if
the failure is caused by flood, extreme weather, or other acts of God or
natural calamity, fire, theft, war, riot, embargo, earthquake, acts of
governmental agency or military authority, or similar causes beyond the
control of such party, and the term for performance shall be increased
to a reasonable period of time.
12.7 Assignment. Neither party may sell, transfer, assign, or delegate in
whole or in part this Agreement, or any rights, duties, obligations or
liabilities under this Agreement, without the prior written consent of
the other party. Notwithstanding the foregoing, this Agreement may be
assigned in the event of a Change of Control. Certain notice and other
obligations must be met in the event of a Change of Control, as set
forth in Section 11.5 above. This Agreement will inure to the benefit of
and be binding upon each party's permitted successors and assigns.
12.8 Governing Law; Personal Jurisdiction and Venue. Any claim arising under
or relating to this Agreement shall be governed by the internal
substantive laws of the State of California or federal courts located in
California, without regard to principles of conflict of laws. Each party
hereby agrees to personal jurisdiction and venue in the courts of the
State of California, county of Santa Xxxxx for all disputes and
litigation arising under or relating to this Agreement.
12.9 No Other Rights. This Agreement shall not be construed to grant any
rights by implication, estoppel, or otherwise, that are not granted
through its express provisions.
12.10 Severability. If any provision of this Agreement is held by a court of
competent jurisdiction to be contrary to law, the remaining provisions
of this Agreement will remain In full force and effect and shall be
interpreted, to the extent possible, to achieve its purposes without the
invalid, illegal or unenforceable provision.
12.11 Duplicate Originals. This Agreement shall be executed in duplicate
originals, which shall constitute one Agreement.
12.12 Entire Agreement. This Agreement constitutes the entire agreement
between the parties and supersedes all prior and contemporaneous
agreements, oral or written, and all other communications relating to
the subject matter of this Agreement. Any terms contained in purchase
orders, invoices, acknowledgments, shipping instructions, or other forms
shall be void and of no effect.
12.13 Modification. No alteration, amendment, waiver or any other change in
any term or condition of this Agreement will be valid or binding on
either party unless such has been mutually assented to in writing by
authorized representatives of both parties.
12.14 Waiver. The failure of either party to enforce at any time any of the
provisions of this Agreement, or the failure to require at any time
performance by the other party of any of the provisions of this
Agreement, shall in no way be construed to be a present or future waiver
of such provisions, nor in any way affect the right of either party to
enforce each and every such provision thereafter. The express waiver by
either party of any provision, condition or requirement of this
Agreement shall not constitute a waiver of any future
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Master Agreement Page 11
12
obligation to comply with such provision, condition or requirement or
constitute a waiver of any other provision of this Agreement.
12.15 Export. Neither party shall export, either directly or indirectly, any
product, service or technical data or system incorporating such Items
without first obtaining any required license or other approval from the
U. S. Department of Commerce or any other agency or department of the
United States Government. In the event any product is exported from the
United States or re-exported from a foreign destination by either party,
that party shall ensure that the distribution and export/re-export or
import of the product is in compliance with all laws, regulations,
orders, or other restrictions of the U.S. Export Administration
Regulations and the appropriate foreign government. Both parties agree
that neither it nor any of its subsidiaries will export/re-export any
technical data, process, product, or service, directly or indirectly, to
any country for which the United States government or any agency thereof
or the foreign government from where it is shipping requires an export
license, or other governmental approval, without first obtaining such
license or approval.
12.16 Taxes. All applicable taxes and other charges such as duties, customs,
tariffs, imposts, and government imposed surcharges shall be stated
separately within invoices and each party shall be responsible for the
payment of such taxes and other charges for which it is legally
responsible. In the event that a party is prohibited by law from
remitting payments unless it deducts or withholds taxes therefrom on
behalf of the local taxing jurisdiction, then that party shall duly
withhold such taxes and shall remit the remaining net invoice amount to
the other party.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the
Effective Date.
INTEL CORPORATION MARVELL SEMICONDUCTOR, INC.
By: _________________________________ By:_________________________________
Printed Name: _______________________ Printed Name: ______________________
Title: ______________________________ Title: _____________________________
Date: _______________________________ Date: ______________________________
EXHIBITS:
Exhibit A Compensation
Exhibit B Purchasing Terms
Exhibit C Purposely Blank
Exhibit D Statement of Work * * * * *
Exhibit E QA Requirements
Exhibit F Support Requirements
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Master Agreement Page 12
13
INTEL CONFIDENTIAL
EXHIBIT A - COMPENSATION
1) GENERALLY. Intel will purchase from Marvell the * * * * *and * * * * *
under the purchasing terms in Exhibit B. The prices paid for such
products are specified below in this Exhibit A.
a) * * * * *:
i) * * * * *.
b) * * * * *:
i) * * * * *.
c) * * * * *.
2) INTEL PURCHASE OF * * * * *
a) Intel can purchase from Marvell a fully packaged, validated,
tested and standards-compliant * * * * *.
b) Starting in Q4 2000+, Intel will pay per unit prices based on
the schedule provided below, where the volume percentage
indicates the percentage that the * * * * * represents out of
all * * * * * expected to be purchased by Intel during such
calendar quarter. The provisions of this Section 2 b) of this
Exhibit A shall be subject to the Audit Rights provisions of
Section 10 of the main text of the Agreement and prices will be
adjusted as appropriate to reflect actual purchases. Intel will
pay per unit prices for Q2 2000 and Q3 2000 as set forth in
Table 1 below, * * * * *.
TABLE 1
VOLUME PERCENTAGE Q2 2000 Q3 2000 Q4 2000+
----------------- ------------- ------------- -------------
0-* * * * *% $* * * * *.00 $* * * * *.00 $* * * * *.00
* * * * *%-* * * * *% $* * * * *.00 $* * * * *.00 $* * * * *.00
* * * * *%-* * * * *% $* * * * *.00 $* * * * *.00 $* * * * *.00
* * * * *%+ $* * * * *.00 $* * * * *.00 $* * * * *.00
c) This schedule represents the maximum per unit amount Intel will pay
Marvell.
d) The parties agree to review pricing on a quarterly basis.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Compensation page 1
14
INTEL CONFIDENTIAL
3) INTEL PURCHASE OF * * * * *
Intel will * * * * * purchase from Marvell * * * * * Intel's volume
requirements for * * * * *device in which a * * * * * Gigabit Phy are
Integrated from the Effective Date through * * * * * and up to and
through the * * * * *period following Intel's delivery of a notice to
Marvell of Intel's plan to * * * * *device provided for in Section
4.2(c) of the main text of the Agreement. In any calendar quarter of the
term of this Agreement, Intel will have the choice to purchase at a
predetermined price set forth below in Table 2 ("Option #1"), or to
purchase under the * * * * * margin sharing model defined below (Option
#2). Once Intel chooses Option #2, Intel cannot return to Option #1.
Nothing herein shall be deemed to constitute the parties as partners or
to create a joint venture relationship between the parties. At all times
hereunder, the parties agree that their relationship shall be that of
customer and supplier. At its own expense, Intel may order the
production of risk wafers to accelerate Intel's receipt by Marvell of a
final production sample of the * * * * *.
a) OPTION #1: * * * * *Intel will purchase from Marvell, a fully
packaged, validated and tested * * * * *as specified below in
Table 2:
TABLE 2
Q1 `01 Q2 `01 Q3 `01 Q4 `01 Q1 `02 Q2 `02 Q3 `02 Q4 `02
------------- ------------- ---------- ---------- ------------- ------------- ------------- -------------
$* * * * *.00 $* * * * *.00 $* * * * * $* * * * * $* * * * *.00 $* * * * *.00 $* * * * *.00 $* * * * *.00
i) This schedule represents the per-unit amount Intel will pay
Marvell for any given quarter under Option #1.
ii) If Marvell * * * * * major milestones set forth in Table 3 below
and item * * * * *from Attachment 3 to Exhibit D, excluding
delays caused by Intel, the per-unit amount will be * * * * *on
this schedule.
iii) Detailed purchasing terms (lead times, QA, shipping, etc), are
found in Exhibits B and E.
iv) These prices assume that Marvell integrates the Intel * * * * *
with the specifications set forth in Exhibit D together with an
* * * * *and a * * * * *. In the event the * * * * * the * * * *
*of * * * * *, the price paid in accordance with Table 2 above
shall be * * * * *. In the event, the * * * * * is * * * * *,
the price Intel paid in accordance with Table 2 above shall be *
* * * *. As of the Effective Date, the estimated cost of * * * *
*is between * * * * *and * * * * *.
b) OPTION #2: * * * * * MARGIN SHARING
Intel will purchase from Marvell a fully packaged, validated and tested * * * *
* based on * * * * * margin sharing whereby Intel and Marvell will * * * * *
based on a pre-determined * * * * *. It is expected that such * * * * * margin
sharing arrangement will enable the parties to continue to reasonably achieve
their respective financial objectives; otherwise, the parties will consider
pursuing Marvell's utilization of * * * * * as provided in Section 4.2(f) of the
Master Agreement.
The formula for establishing the purchase price is:
IPP = * * * * *
Given:
Intel Purchase Price (IPP) - the price Intel pays to Marvell for
the * * * * *Intel * * * * * the * * * * * for an * * * * * sold
to * * * * *for * * * * * solutions. SEE FURTHER DEFINITION OF *
* * * * BELOW.
* * * * * Margin Sharing * * * * *- the * * * * * of * * * * *
receives from Intel - * * * * *
Marvell * * * * * Marvell's * * * * *of the * * * * * Intel * *
* * *Intel's * * * * *to * * * * * the * * * * * * * * * *The
sum of * * * * * and * * * * *
* * * * *
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Compensation page 2
15
INTEL CONFIDENTIAL
Intel will pay Marvell $* * * * *per * * * * *and $* * * *
*specified in Exhibit D.
ii) * * * * *.
4) QUARTERLY MEETING: Within thirty (30) days after the end of each
calendar quarter, or as the parties otherwise mutually agree, the
parties shall meet to administer the pricing, commencing one quarter
before FCS of the * * * * *. At Intel's option, the parties shall meet
in addition on a monthly basis to administer the pricing and make any
required Adjustments.
a) Quarterly Product Price to Intel: For the purposes of
determining the target Intel Product Price above for purposes of
Section 3(b) above, prior to the beginning of each calendar
quarter, the parties shall meet to set the target Intel Product
Price for the upcoming calendar quarter. For the purposes of
such calculation, Intel shall use its best efforts to submit a
reasonable target * * * * * and reasonable target * * * * * and
Marvell shall use its best efforts to submit a reasonable target
* * * * *. * * * * *. For the purposes of the very first
meeting, Marvell will provide the * * * * *based on its expected
* * * * *from * * * * * and Marvell and Intel working together
shall provide the then current * * * * *.
b) Adjustments to the Product price based on actual * * * * *:
Within 30 days after the end of each calendar quarter, Intel
shall submit its * * * * * of the * * * * *to Marvell and
Marvell shall submit its * * * * * to Intel for the actual
calendar quarter. Such calculations shall be subject to the
audit provision set forth in Section 10 of the main text of the
Agreement. Based on each party's submissions, an adjustment to
the Intel Product Price will be made in accordance with the * *
* * *margin sharing formula set forth above in 3(b)(i) as set
forth in the following formula:
Adjustment = (number of * * * * *units shipped to Intel)
* (IPPACTUAL - IPP TARGETED ).
If the net of the Adjustments is in Intel's favor, Marvell shall
promptly issue a credit memo to Intel, and if the net of the Adjustment
is in Marvell's favor, Marvell shall invoice Intel for the net
adjustment. In no event shall the * * * * *.
5) NRE FOR * * * * *
Intel will pay Marvell for certain NRE costs associated with the
development of the * * * * *. Fees would be paid within 30 days
according to the following schedule:
TABLE 3
Milestone Payment
--------- ----------
Completion of * * * * * Architecture Spec (I2) & $* * * * *
Agreement of Program Schedule (I-8)
* * * * * $* * * * *
* * * * * $* * * * *
In the event of a Termination for Convenience under Section 11 of the
Agreement* * * * *.
Notwithstanding the foregoing Table 3, * * * * *.
Notwithstanding the foregoing Table 3, * * * * *.
6) QA CONFORMANCE COSTS FOR * * * * *
Intel will * * * * * for * * * * * up to $* * * * * associated with QA
Conformance and process qualification at * * * * *. In the event a new *
* * * *, Intel will * * * * *. Marvell will * * * * * of * * * * * for
such * * * * * and Intel shall * * * * *.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Compensation page 3
16
INTEL CONFIDENTIAL
EXHIBIT B - PURCHASING TERMS
1. DEFINITIONS
A. "Hazardous Materials" are or contain dangerous goods, chemicals,
contaminants, substances, pollutants, or any other materials that are defined as
hazardous by relevant local, state, national, or international law, regulations,
and standards.
B. "Item" or "Items" means either the * * * * * or the * * * * *, or
both, as relevant.
C. "Purchase Order" is Intel's document setting forth specific line
Items ordered and Release information.
D. "Release" means Intel's authorization to ship in accordance with the
Intel's Purchase Order, and authorizing Marvell to ship a definite quantity of
Items to a specified schedule. The Release is contained in the Purchase Order
sent to Marvell.
2. TERM OF AGREEMENT
A. The term is as set forth in the main text of this Agreement.
B. At Intel's option, Items may be scheduled for delivery up to six (6)
months following expiration of this Agreement.
3. PRICING
A. The pricing for all Items is as set forth in the Compensation
Exhibit, Exhibit A to the main text of this Agreement.
B. All applicable taxes, including but not limited to sales/use taxes,
transaction privilege taxes, gross receipts taxes, and other charges such as
duties, customs, tariffs, imposts, and government imposed surcharges shall be
stated separately on Marvell's invoice and upon payment by Intel shall be
remitted by Marvell to the appropriate tax authority, unless Intel provides
sufficient proof of tax exemption. In the event that Intel is prohibited by law
from making payments to Marvell unless Intel deducts or withholds taxes
therefrom and remits such taxes to the local taxing jurisdiction, then Intel
shall duly withhold and remit such taxes and shall pay to Marvell the remaining
net amount after the taxes have been withheld. Intel shall not reimburse Marvell
for the amount of such taxes withheld. When property is delivered and/or
services are provided or the benefit of services occurs within jurisdictions in
which Marvell collection and remittance of taxes is required by law, Marvell
shall have sole responsibility for payment of said taxes to the appropriate tax
authorities. In the event Marvell does not collect tax from Intel, and is
subsequently audited by any tax authority, liability of Intel will be limited to
the tax assessment, with no reimbursement for penalty or interest charges unless
such failure to pay is based on Intel's claim of tax exemption or other
information provided by Intel. Each party is responsible for its own respective
income taxes or taxes based upon gross revenues, including but not limited to
business and occupation taxes.
4. INVOICING AND PAYMENT
A. Payment is made when Intel's check is mailed or EDI funds transfer
initiated. Intel shall make payment within * * * * * days after Intel's receipt
of the Items.
B. Original invoices or packing lists shall be submitted and shall
include: purchase agreement number from the Purchase Order, purchase order
number, line Item number, Release number, part number, complete xxxx to address,
description of Items, quantities, unit price, extended totals, and any
applicable taxes or other charges. All costs forwarded to Intel for
reimbursement of expenses agreed under the terms of this Agreement shall be net
of any reclaimable Value Added Taxes ("VAT") incurred on such expenses. Intel's
payment shall not constitute acceptance.
C. Marvell agrees to invoice Intel no later than * * * * * days after
shipment of Items. Intel will not be obligated to make payment against any
invoices submitted after such period.
5. FORCE MAJEURE
Neither party shall be held liable for failure to fulfill its obligations other
than payment obligations under this Agreement, if the failure is caused by
flood, extreme weather, or other acts of God or natural calamity, fire, theft,
war, riot, embargo, earthquake, acts of governmental agency or military
authority, or similar causes beyond the control of such party, and the term for
performance shall be increased to a reasonable period of time. If delivery is to
be delayed by such contingencies, Marvell shall immediately notify Intel in
writing and Intel may either (i) extend
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Purchasing Terms page 1
17
EXHIBIT B - PURCHASING TERMS
INTEL CONFIDENTIAL
time of performance; or (ii) terminate all or part of the uncompleted portion of
the Purchase Order at no cost to Intel, except for the * * * * *.
6. DELIVERY, RELEASES SCHEDULING AND ALLOCATION
The management of existing accepted Releases for the * * * * * will, to the
extent commercially reasonable, occur in accordance with the following table 1:
TABLE 1
Days prior to
delivery Upside
----------- ---------
<* * * * * * * * * *%
* * * * * * * * * *%
* * * * *+ * * * * *%
The parties agree that any charges incurred in this Section 6 will be invoiced
and paid in accordance with this Exhibit B.
A. Rescheduling and Cancellation of the * * * * *. Intel may reschedule
and cancel any Releases for * * * * * strictly in accordance with the following
table 2:
TABLE 2
CANCELLATION CHARGE AS
DAYS BEFORE SCHEDULED A PERCENTAGE OF THE
DELIVERY DATE RESCHEDULING RULE CANCELLATION RULE UNIT PURCHASE PRICE
------------- ----------------- ----------------- -------------------
0-* * * * * * * * * * * * * * * * * * * *
* * * * * At any time between * * * * * * * * * * * *
* * * and * * * * *
days; Marvell must
receive notice of such
request prior to
Marvell's consignment
of any Items to a
carrier; only * * * * *
permitted, in whole or in
part, at * * * * * to
Intel; delivery to be
rescheduled must be
rescheduled for
delivery no later than
* * * * * days after
the originally
scheduled delivery
date.
* * * * * At any time after * * * * * * * * charge to * * * * *
* * days; Marvell must Intel, provided that
receive notice of such Marvell receives notice
request prior to of such cancellation on
Marvell's consignment or greater than * * * *
of any Items to a * calendar days prior to
carrier; only * * * * Marvell's consignment
* permitted, in whole or of any Items to a
in part, at * * * * * carrier.
to Intel; delivery to
be rescheduled must be
rescheduled for
delivery no later than
* * * * * days after
the originally
scheduled delivery date.
B. Rescheduling and Cancellation of * * * * *. Intel may reschedule and
cancel any Releases for the * * * * * strictly in accordance with the following
table 3:
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Purchasing Terms page 2
18
INTEL CONFIDENTIAL
TABLE 3
CANCELLATION CHARGE AS
DAYS BEFORE SCHEDULED A PERCENTAGE OF THE
DELIVERY DATE RESCHEDULING RULE CANCELLATION RULE UNIT PURCHASE PRICE
------------- ----------------- ----------------- -------------------
* * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * days; Marvell * * * * * * * * * *
must receive notice of
such request prior to
Marvell's consignment
of any Items to a
carrier; only * * * *
* permitted, in whole or
in part, at * * * * *
to Intel; delivery to
be rescheduled must be
rescheduled for
delivery no later than
* * * * * days after the
originally scheduled
delivery date.
* * * * * At any time after * * * * * * * * receives In accordance with
* * days; Marvell must notice of such Table 4 of this Exhibit
receive notice of such cancellation on or B.
request prior to greater than * * * * *
Marvell's consignment calendar days prior to
of any Items to a Marvell's consignment
carrier; only * * * * of any Items to a
* permitted, in whole or carrier.
in part, at * * * * * to
Intel; delivery to be
rescheduled must be
rescheduled for
delivery no later than
* * * * * days after
the originally
scheduled delivery date.
TABLE 4
CANCELLATION CHARGE AS A
PERCENTAGE OF THE UNIT PURCHASE
DAYS BEFORE SCHEDULED DELIVERY DATE PRICE
------------------------------------ ----------------------------------
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
*In the event * * * * * or other approved fab imposes a penalty on Marvell for
cancellation of reserved capacity beyond 90 days, the parties agree to
renegotiate the cancellation charge applicable at * * * * *+ days.
C. Intel shall provide Marvell with a * * * * * rolling forecast monthly
for Items.
D. Lead-time for Items shall be * * * * * days.
E. If for any reason Marvell discontinues the manufacture of any Item
during the term of this Agreement or within * * * * *, during which time Intel
shall have the option to place a final Release for such Items for delivery to
Intel within an agreed upon period. If any warranty return claims are made for
such discontinued Items, then such returns will be subject to the warranty
provisions in Section 7.
F. * * * * *.
G. Notwithstanding anything else in this Agreement, failure to meet the
delivery date(s) that comply with the terms of this Agreement in the Purchase
Order for the * * * * * other than for force majeure, within five (5) days after
such scheduled delivery date(s), shall be considered a material breach of
contract and shall allow Intel to terminate the order for the * * * * * and/or
any subsequent Releases in the Purchase Order without any liability.
7 ACCEPTANCE AND WARRANTY
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Purchasing Terms page 3
19
INTEL CONFIDENTIAL
A. Intel may inspect and test all Items at reasonable times before,
during, and after manufacture. If any inspection or test is made on Marvell's
premises, Marvell shall provide reasonable facilities and assistance for the
safety and convenience of Intel's inspectors in such manner as shall not
unreasonably hinder or delay Marvell's performance. All Items shall be received
subject to Intel's inspection, testing, approval, and acceptance at Intel's
premises notwithstanding any inspection or testing at Marvell's premises or any
prior payment for such Items. Items rejected by Intel as not conforming to this
Agreement or Item specifications, whether provided by Intel or furnished with
the Item shall be subject to Marvell's RMA procedures.
B. Except as noted in this Section B, the warranty obligations of Intel
and Marvell are as set forth in Section 6 of the main text of the Agreement,
which such obligations the parties agree shall survive any delivery, inspection,
acceptance, payment, or resale of the Items.
Notwithstanding the foregoing, Marvell makes the following additional
warranties:
(i) * * * * *;
(ii) * * * * *;
(iii) * * * * *;
(iv) * * * * *
(v) * * * * *;
* * * * *.
* * * * *.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Purchasing Terms page 4
20
INTEL CONFIDENTIAL
Intel also makes the following additional warranties:
(vi) * * * * *,
(vii) * * * * *
* * * * *.
C. If Marvell breaches any of the foregoing warranties, or Items are
otherwise defective or non-conforming, during a period of * * * * * after
Intel's acceptance of Items, which such acceptance for purposes of this Section
7 C. shall be deemed to occur on the earlier of the actual date of such
acceptance or thirty (30) days after delivery of the Items by Marvell to Intel,
Marvell shall, at its option, * * * * *, provided that Marvell's examination of
such Items discloses to Marvell's satisfaction that such Items are defective and
such defects are not caused by accident, abuse, misuse, neglect, alteration,
improper installation, repair or alteration by someone other than Marvell.
D. THE WARRANTIES BY MARVELL AND INTEL SET FORTH HEREIN ARE EXCLUSIVE,
AND IN LIEU OF ALL OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A
PARTICULAR PURPOSE, WHICH ARE HEREBY EXPRESSLY DISCLAIMED.
8 PRODUCT SPECIFICATIONS/IDENTIFICATION/ERRATA
A. Marvell shall not modify the specifications for * * * * * without
Intel's written consent. Marvell shall notify Intel in advance of any material
changes in the manufacturing process, product, and packing material or test
program of the * * * * * as follows:
(a) * * * * * days advanced notice for changes requiring customer
qualification or notification; and,
(b) * * * * * days advanced notice for changes that do not require
customer approval.
B. Marvell shall promptly notify Intel of any modifications of the
specifications for the * * * * *. Additionally, Marvell shall notify Intel in
advance of any material changes in the manufacturing process, product, and
packing material or test program of the * * * * *as follows:
(a) * * * * * days advanced notice for changes requiring customer
qualification or notification; and,
(b) * * * * *days advanced notice for changes that do not require
customer approval.
C. Marvell shall cooperate with Intel to provide configuration control
and traceability systems for Items supplied hereunder.
D. Marvell shall provide Intel with an errata list for each Item and
shall promptly notify Intel in writing of any new errata with respect to the
Items.
E. Marvell shall provide additional errata reporting as specified in
Exhibit F - Support.
F. * * * * *.
9 PACKING AND SHIPMENT/PASSAGE OF TITLE
All items shall be delivered Free Carrier ("FCA", Incoterms 2000) from Marvell's
facility in Taiwan, or otherwise as specified in the Release. In any event,
title and risk of loss shall pass to Intel at this point outside the U.S.. All
Items shall be prepared for shipment in a manner which: (i) follows good
commercial practice; (ii) is acceptable to common carriers for shipment at the
lowest rate; and (iii) is adequate to ensure safe arrival. Marvell shall xxxx
all containers with necessary lifting, handling and shipping information,
purchase order number, date of shipment, and the names of the Intel and Marvell.
Intel shall notify Marvell of the method of shipment and expected delivery date.
If no instructions are given, Marvell shall select the most cost effective
carrier, given the time constraints known to Marvell. Marvell shall ship only
the quantity of Items specified in the Release. Intel may return at Marvell's
expense any Items in excess of the quantity stated in the Release.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Purchasing Terms page 5
21
INTEL CONFIDENTIAL
10 OWNERSHIP
SEE SECTION 4 OF THE MAIN TEXT OF THE AGREEMENT FOR CONTROLLING TERMS.
11 INTELLECTUAL PROPERTY INDEMNIFICATION
A. Marvell Obligation. Marvell will defend or settle any suit or
proceeding brought against Intel based upon a claim that Intel's use or
distribution of the * * * * * and the * * * * * infringes or misappropriates the
Intellectual Property Rights of a third party, and Marvell will pay the damages
and costs finally awarded against Intel up to such limits, so long as: (i)
Marvell is notified promptly in writing of such suit or proceeding, (ii) Marvell
controls the defense and settlement of the suit or proceeding, and (iii) Intel
cooperates reasonably, and gives all necessary authority, information and
assistance to Marvell (at Marvell's expense) to defend and settle the suit or
proceeding. Notwithstanding the foregoing, Marvell is not obligated to defend or
settle any such suit or proceeding and is not obligated to pay any such damages
or costs, if such suit or proceeding arises out of either: (A) a combination of
the * * * * *or the * * * * *in the * * * * *with devices or programs not
supplied by Marvell, except where such has no noninfringing use other than in
such combination; or, (B) a modification, alteration or amendment of * * * * *
and the Marvell Gigabit Phy * * * * *in the * * * * *.
B. Limitations on Marvell Obligation. Marvell shall not be responsible
for any costs, expenses or compromise incurred or made by Intel without
Marvell's prior written consent. If a suit or other proceeding has been filed,
or it reasonably appears that one will be filed or that an injunction shall
issue, Marvell may, in its sole discretion and at its own expense, procure for
Intel the right to continue using the * * * * * and the Marvell Gigabit Phy * *
* * *in the * * * * *, replace it with a non-infringing technology or modify it
so that it becomes non-infringing, provided that the infringement would not have
occurred but for such use or combination.
C. Intel Obligation. Intel will defend or settle any suit or proceeding
brought against Marvell based upon a claim that Intel's use or distribution of
the Intel * * * * * in the * * * * *infringes or misappropriates the
Intellectual Property Rights of a third party, and Intel will pay the damages
and costs finally awarded against Marvell up to such limits, so long as: (i)
Intel is notified promptly in writing of such suit or proceeding, (ii) Intel
controls the defense and settlement of the suit or proceeding, and (iii) Marvell
cooperates reasonably, and gives all necessary authority, information and
assistance to Intel (at Intel's expense) to defend and settle the suit or
proceeding. Notwithstanding the foregoing, Intel is not obligated to defend or
settle any such suit or proceeding and is not obligated to pay any such damages
or costs, if such suit or proceeding arises out of either: (A) a combination of
the Intel * * * * * in the * * * * *with devices or programs not supplied by
Intel, except where such has no noninfringing use other than in such
combination; or, (B) a modification, alteration or amendment of the Intel * * *
* *in the * * * * *.
D. Limitations on Intel Obligation. Intel shall not be responsible for
any costs, expenses or compromise incurred or made by Marvell without Intel's
prior written consent. If a suit or other proceeding has been filed, or it
reasonably appears that one will be filed or that an injunction shall issue,
Intel may, in its sole discretion and at its own expense, procure for Marvell
the right to continue using the Intel * * * * *in the * * * * *, replace it with
a non-infringing technology or modify it so that it becomes non-infringing,
provided that the infringement would not have occurred but for such use or
combination.
12 HAZARDOUS MATERIALS
A. If Items or any services provided hereunder include Hazardous
Materials, Marvell represents and warrants that Marvell and its personnel
providing services to Intel understand the nature of and hazards associated with
the design and/or service of Items including handling, transportation, and use
of such Hazardous Materials, as applicable to Marvell. Prior to causing
Hazardous Materials to be on Intel's property, Marvell shall obtain written
approval from Intel's Site Environmental/Health/Safety organization. Marvell
will be responsible for and indemnify Intel from any liability resulting from
the actions of Marvell or its contractors in connection with: (i) providing such
Hazardous Materials to Intel; and/or (ii) the use of such Hazardous Materials in
providing services to Intel.
B. Marvell will timely provide Intel with material safety data sheets
and any other documentation reasonably necessary to enable Intel to comply with
applicable laws and regulations.
C. Marvell hereby certifies to the best of its knowledge that Items
supplied to Intel do not contain and are not manufactured with any ozone
depleting substances, as those terms are defined by law.
13 CUSTOMS CLEARANCE
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Purchasing Terms page 6
22
INTEL CONFIDENTIAL
Upon Intel's request, Marvell will promptly provide Intel with a statement of
origin for all Items and with applicable customs documentation for Items wholly
or partially manufactured outside of the country of import.
14 COMPLIANCE WITH LAWS
A. Marvell shall comply with all national, state, and local laws and
regulations governing the manufacture, transportation, and/or sale of Items
and/or the performance of services in the course of this Agreement. In the
United States, these may include, but are not limited to, Department of
Commerce, Environmental Protection Agency, and Department of Transportation
regulations applicable to Hazardous Materials.
B. Marvell represents and agrees that it is in compliance with Executive
Order 11246 and implementing Equal Employment Opportunity regulations and the
Immigration Act of 1987, unless exempted or inapplicable.
15 SPECIFIC PERFORMANCE
Notwithstanding anything else contained in this Agreement, the parties hereto
agree that failure to perform certain obligations undertaken in connection with
this Agreement would cause irreparable damage, and that monetary damages would
not provide an adequate remedy in such event. The parties further agree that
failure to deliver against accepted Purchase Orders, or to deliver confirmed
supply or pricing, are such obligations. Accordingly, it is agreed that, in
addition to any other remedy to which the non breaching party may be entitled,
at law or in equity, the non breaching party shall be entitled to injunctive
relief to prevent breaches of the provisions of this Agreement, and an order of
specific performance to compel performance of such obligations in any action
instituted in any court of the United States or any state thereof having subject
matter jurisdiction.
16 SURVIVAL
The provisions of Sections 4, 6, 7, 9 and 11 will survive any termination or
expiration of this Agreement.
17 CONTROLLING TERMS
Notwithstanding anything to the contrary set forth in this Exhibit B, in the
event of a conflict between the terms of this Exhibit B and the terms of the
main text of the Agreement, the terms of the main text of the Agreement shall
control and supercede any conflicting provisions set forth in this Exhibit B.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Purchasing Terms page 7
23
INTEL CONFIDENTIAL
EXHIBIT D
VER: V0.80
MAY 19, 2000
Statement of Work for * * * * *
--------------------------------------------------------------------------------
1.0 PURPOSE
The purpose of this SOW is to set forth the terms and conditions under which
Marvell and Intel shall develop an Intel product currently known as "* * * * *".
The parties must agree to any material changes to * * * * * that is encompassed
in this SOW in writing.
2.0 DEFINITIONS
PHY Physical Layer Device. The device/block that implements the AFE.
* * * * * * * * * *.
* * * * * * * * * *.
AFE Analog Front End... converts digital signals to analog for input and output
on physical interface
LVS Layout Verification Service
SDF Standard Delay Format.
IBIS An industry standard simulation / signal characterization model of IOs.
EEPROM Electrically Erasable Programmable Read Only Memory.
VCS Synopsys's HDL simulator product.
Modelsim Model Technology's HDL simulator product.
DB The library format of Synopsys sythesis libraries.
Synopsys Synthesis tool company. xxx.xxxxxxxx.xxx
Verilog An industry standard HDL language
HDL Hardware Design Language.
DFT Design For Test.
IO Input/Output. Typically refers to a silicon pin/pad.
RAM Random Access Memory.
DMA Direct Memory Access.
DRC Design Rule Check.
DSP Digital Signal Processor.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 1
24
INTEL CONFIDENTIAL
* * * * * * * * * *
* * * * * * * * * *
IAS * * * * * Architecture Specification - is the overall system specification
for * * * * * and will be the reference point for all functions and features
MII Media Independent Interface
GPIO General Purpose Input/Output. This is a software controllable input/output
pin/pad.
* * * * * * * * * *
TBI Ten Bit Interface
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
ACPI Advanced Configuration and Power Interface: A specification developed by
Intel, Microsoft, and Toshiba for describing and enabling power management
functionality provided by a computer system
* * * * * * * * * *
ASF Alerting Standards Form
CIM Common Information Model: DMTF standard for management data schema
DAC Dual Address Cycle
IAS * * * * * Architecture Specification: Document of design requirements for
* * * * *.
* * * * * * * * * *.
MCM Multi-Chip Module
MOF Management Object Format: A format for storing management data.
PXE Pre-boot eXecution Environment.
UTP Unshielded Twisted Pair.
WBEM Web Based Enterprise Management: Initiative for management proposed by six
companies including Intel and Microsoft through the DMTF.
* * * * * * * * * *
* * * * * * * * * *
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 2
25
INTEL CONFIDENTIAL
* * * * * * * * * *
* * * * * * * * * *
ER Engineering Release (Product is placed under ECO Control)
PLC Product Life Cycle
* * * * * * * * * *
* * * * * * * * * *
SSD Systems Specification Document
NQL Network Quality Labs... Intel quality assurance (QA) process for hardware
and software
SKU Stock Keeping Unit
PDT Intel and Marvell's Joint Program Development Team.
A0 A0 is used to indicate the first revision of the silicon. If the next
revision only changes metal layer, the number increments (e.g. A1). If all
(or most) layers change, the letter increments and the number resets to
zero (e.g. B0).
3.0 PROGRAM MANAGEMENT
The parties agree to each assign dedicated Program Managers and Engineering
Project Managers to this project. The Intel Program Manager will have overall
project responsibility.
Program and Engineering Project Managers
COMPANY NAME TITLE PHONE NUMBER EMAIL ADDRESS
------- ---- ----- ------------ -------------
* * * * *
* * * * *
* * * * *
* * * * *
In addition, when applicable, both parties agree to assign cross-functional team
members to the project. These members may not be dedicated to the project, but
do include representation from at least the following functions or disciplines:
- Marketing
- Digital Engineering (ASIC and CMOS micro-architecture)
- Analog Engineering (IO cells, PHY, and noise analysis)
- CAD Engineering (Layout, DRC)
- Board Engineering
- Foundry Support
- Manufacturing Test Engineering
- Quality & Reliability Engineering
- Product Engineering
- Packaging Engineering
- Customer Support
- Applications Engineering
- Operations
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 3
26
INTEL CONFIDENTIAL
- Silicon Validation
- Firmware / Software Engineering
4.0 PRODUCT REQUIREMENTS AND SPECIFICATIONS
The following documents describe the * * * * * product requirements and are
incorporated herein.
- * * * * * Product Requirements are attached as Attachment #1 to this
Project Statement)
- * * * * * * * * * * Architecture Specification (IAS) as referenced in
"Phase I" of the Statement of Work. This document will be attached as
Attachment #2 to this Project Statement after completion of Phase I.
5.0 STATEMENT OF WORK ("SOW") - PROJECT DELIVERABLES AND SCHEDULE; RESTRICTION
ON USE AND DISCLOSURE OF PARTIES' INTELLECTUAL PROPERTY
The SOW in Attachment #3 is incorporated in this Project Statement. The SOW
details the Deliverables and associated milestone dates for this project. The
acceptance criteria are identified in Attachment #4. In addition to the
protections on each parties Intellectual Property Rights set forth in the main
text of the Agreement, each party agrees not to violate the other party's
Intellectual Property Rights in connection with the performance of its
obligations under this SOW and the attachments hereto. The parties agree that
such violations would include but not be limited to, de-compiling any software
code or reverse engineering any Item (as defined in Exhibit B to the main
Agreement) or model delivered to the other in accordance with the main text of
the Agreement or any exhibit thereto, including this SOW and the attachments
hereto.
INTEL CORPORATION MARVELL SEMICONDUCTOR, INC.
By: _________________________________ By:___________________________________
Printed Name: _______________________ Printed Name: ________________________
Title: ______________________________ Title: _______________________________
Date: _______________________________ Date: ________________________________
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 4
27
INTEL CONFIDENTIAL
ATTACHMENT #1 TO PROJECT STATEMENT #1
* * * * * PRODUCT REQUIREMENTS
REVISION 0.80
REQUIRED FEATURES:
* * * * *.
DESIRED (BUT NOT REQUIRED) FEATURES:
* * * * *
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 5
28
INTEL CORPORATION MARVELL SEMICONDUCTOR, INC.
By: _________________________________ By:___________________________________
Printed Name: _______________________ Printed Name: ________________________
Title: ______________________________ Title: _______________________________
Date: _______________________________ Date: ________________________________
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 6
29
INTEL CONFIDENTIAL
ATTACHMENT #2 TO PROJECT STATEMENT #1
* * * * * ARCHITECTURE SPECIFICATION
REVISION 0.11
(TO BE COMPLETED AT THE END OF PHASE I)
The purpose of this section is to provide a framework for the * * * * *
Architecture Specification ("IAS"). The final IAS may incorporate additional
items.
** * * */* * * * * INTERFACE
Connections
Timing Requirements
Functional Requirements of Signals
Interface Reset Methodology
Interface Clock
Requirements
Initialization Sequence
Power Down Sequence
IO CELLS
Cell List/Summary
Electrical Requirements - Internal, External, Timing
* * * * *
* * * * *
PHY Standalone DFT Interface
Timing Requirements of DFT Interface
FULL CHIP PIN LIST
Pin List for each Interface
List of shared/overloaded pins
* * * * *
INTEL CORPORATION MARVELL SEMICONDUCTOR, INC.
By: _________________________________ By:___________________________________
Printed Name: _______________________ Printed Name: ________________________
Title: ______________________________ Title: _______________________________
Date: _______________________________ Date: ________________________________
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 7
30
INTEL CONFIDENTIAL
ATTACHMENT #3 TO PROJECT STATEMENT #1
* * * * * STATEMENT OF WORK
REVISION 0.7
PHASE I: SYSTEM DEFINITION AND REQUIREMENTS
TARGET TARGET
START END BY/
MS DATE DATE ACTIVITY/DELIVERABLE BETWEEN TO
------------ ------ --------- ---------------------------------------------------------- --------- ---------
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 8
31
INTEL CONFIDENTIAL
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 9
32
INTEL CONFIDENTIAL
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
*****
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * * * * * * *
* * * * * ***** * * * * * * * * * * * * * * *
INTEL CORPORATION MARVELL SEMICONDUCTOR, INC.
By: _________________________________ By:___________________________________
Printed Name: _______________________ Printed Name: ________________________
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 10
33
INTEL CONFIDENTIAL
Title: ______________________________ Title: _______________________________
Date: _______________________________ Date: ________________________________
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 11
34
INTEL CONFIDENTIAL
PHASE I
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 12
35
INTEL CONFIDENTIAL
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
* * * * * * * * * *
INTEL CORPORATION MARVELL SEMICONDUCTOR, INC.
By: _________________________________ By:___________________________________
Printed Name: _______________________ Printed Name: ________________________
Title: ______________________________ Title: _______________________________
Date: _______________________________ Date: ________________________________
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Statement of Work for * * * * * page 13
36
INTEL CONFIDENTIAL
EXHIBIT E
QUALITY ASSURANCE REQUIREMENTS
1.0 PURPOSE
This document outlines Intel's minimum expectations for the quality and
reliability * * * * * product and the * * * * *.
1.1 * * * * *
The Marvell Gigabit Phy should meet all the criteria listed in the Intel
specification * * * * *- General Procurement Specification for Silicon * * * * *
circuits. Intel must approve any exceptions to the spec. Any branding
requirements from Intel's * * * * * must be explicitly called out in Exhibit E.
Any requirements in `Appendix D' of * * * * * will be superceded by requirements
listed in Exhibit E.
1.1A * * * * *
The * * * * * part should meet all the criteria listed in the Intel
specification * * * * *- General Procurement Specification for Silicon
Integrated circuits with the outgoing DPM * * * * *. Intel must approve any
exceptions to the spec. Any branding requirements from * * * * * spec must be
explicitly called out in Exhibit E. Any requirements in `Appendix D' of
* * * * * will be superceded by requirements listed in Exhibit E.
1.2 RETENTION OF RECORDS
Marvell will maintain records pertaining to the manufacture and inspection of
all Items for 1 year. This should include but is not limited to:
a) documentation
b) reported data
c) tests performed
d) inspections
e) process changes
1.3. RIGHT TO AUDIT
Intel reserves the right to conduct an on-site audit of Marvell's supplier's
processes with reasonable advance notice. The audit may cover basic quality
operating systems, manufacturing, test, etc. Marvell will facilitate this
meeting between the two organizations.
1.4. QUALIFICATION PROCESS (FOR * * * * * AND * * * * *)
Marvell will provide, upon reasonable request, any documentation reasonably
required to assist Intel in determining the baseline quality level for the Item.
Requested documentation will include, but is not limited to:
a) Qualification Plan and Report
b) Test Plan and report
c) Certification Reports for fab process and standard package
assembly process. Intel may re-qualify the package assembly
process at its own expense if it chooses.
The intent is to establish an understanding of quality levels and correlate
Marvell's qualification activities to Intel's. When engineering/design changes
occur, Intel may require Marvell to resubmit certain documentation as it
pertains to scheduled Item changes and updates.
1.5. SAMPLE SIZES AND ACCEPT CRITERIA FOR RELIABILITY STRESSES
Number of Units
Stress/test Risk lots per lot PTQ PDQ FLQ Notes
----------- --------- --------- --------- --------- --------- --------- -----
3-Temperature Quality * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Validation * *
Test Fault Coverage * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
QA Requirements page 1
37
INTEL CONFIDENTIAL
Infant Mortality * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Evaluation * *
Lifetest * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
Preconditioning * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
Temperature Cycle * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Condition "C" * *
HAST, 85/85 * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
ESD HBM * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
ESD CDM * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
Latchup I/O * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
Latch-up Vcc * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
* *
NOTES:
1) * * * * *
2) * * * * *
3) * * * * *.
4) * * * * *
5) * * * * *.
6) * * * * *.
7) * * * * *.
8) * * * * *.
9) * * * * *.
1.6. DATA REPORTING
Marvell shall make available to Intel the quality data on a regular basis, but
no less frequently than monthly. Such data may include yield information, OQA
(Outgoing Quality) data, FA details etc. The data is to be sent to the attention
of the Intel's Quality Engineer on a monthly basis or mutually agreed upon
timeframe. Marvell and Intel may jointly determine that some of the above data
reporting is no longer needed once a certain confidence level is reached.
Therefore, some of the above data reporting will only be required in the early
stages of a program while some will be required on an ongoing basis. This is
dependent on the maturity and health of individual Items.
1.7. QUALITY IMPROVEMENT AND CORRECTIVE ACTIONS
Upon request from either party, Intel and Marvell will meet to discuss reported
data, DPM, and quality improvement plan if the quality levels are not being met.
As required, increased frequency of reporting and/or additional corrective
actions will be assigned and monitored. Intel may issue a Corrective Action
Request if:
a) the DPM consistently fails to meet the required DPM or
b) Intel or an Intel customer experiences a failure or
c) data exists to suggest a risk of impact to Intel or Intel's
customers
If Corrective Action is requested, Marvell must formally respond within
* * * * * working days after receipt and report any containment action taken.
Marvell will provide final failure analysis, root cause and a corrective action
plan within * * * * * calendar days of notification on all returned defective
material. If Marvell cannot consistently meet Intel's quality requirements,
Marvell must take appropriate steps to improve quality. This may require
modification of processes involving manufacturing, material handling, test, etc
or other quality requirements as stated in this Exhibit. The stated quality
requirements shall not be amended during the term of this Agreement except
pursuant to written amendment, signed by both Intel/Marvell.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
QA Requirements page 2
38
INTEL CONFIDENTIAL
1.8. PACKAGING REQUIREMENTS
Marvell agrees to provide packaging for the products that meets Intel's standard
requirement for packaging, labeling etc.
1.9. QUALITY ACTION NOTIFICATION (QAN) AND MARVELL EXCURSIONS
A QAN is a process that provides formal management of quality excursions. This
is a high visibility process and will take priority over all sustaining issues.
Marvell is expected to participate in conference calls and provide written
documentation regarding the following focus areas:
a) Containment and quarantine
b) Root cause analysis
c) Corrective actions
Marvell commits to proactive notification to Intel of any quality or reliability
issues that pose a risk of impact to Intel or Intel's customers.
1.10. RMAS, TRACEABILITY, TRACKING, AND FAILURE ANALYSIS
Marvell will provide failure analysis on any failing units returned by Intel or
any of Intel's customers. First level failure analysis (Go/ No Go) will be
performed within * * * * * working days of receipt. Final failure analysis (root
cause, corrective action) will be performed within * * * * * calendar days of
receipt. The final failure analysis is considered complete when a report is
received and accepted by the Intel Item Quality Engineer.
Items must be traceable to date, location, and line of manufacture. Item
undergoing failure analysis at Marvell or Marvell's suppliers must be tracked
sufficiently to provide status updates upon request from Intel.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
QA Requirements page 3
39
INTEL CONFIDENTIAL
EXHIBIT F
SUPPORT REQUIREMENTS
GENERAL
Intel and Marvell shall provide Technical Support at least during normal
business hours 8:00 a.m. - 5:00 p.m. PST.
Each party shall assign a Program Manager or support specialist to act as a
primary contact with respect to technical support provided by each party as
described herein.
SCOPE OF SUPPORT
Support will include training, support services, bug fixes, and the delivery to
Intel of all Updates and other enhancements to the * * * * *. Marvell shall
provide its standard product support to the * * * * *. Intel's support will
include training, support services, bug fixes, and the delivery to Marvell of
all Updates and other enhancements to the Intel * * * * *, as it pertains to the
* * * * *.
1. TRAINING
1.1 Marvell will conduct two (2) Training Classes ("Training
Classes"), of 1-day duration each, covering the use of the
Marvell Integration Technology, one in Portland, OR and one in
Haifa, Israel. Intel will conduct one (1) Training Classes of
1-day duration covering the use of the Intel * * * * * in
Sunnyvale, CA. An initial Training Class will be held by each
party at a mutually acceptable date within three months of the
Effective Date. The Training Classes shall pertain only to that
subject matter related to the * * * * *.
1.2 Prior to each class, Marvell and Intel shall mutually agree on
the specific topics to be covered and specific type of training
to be provided.
2. SUPPORT SERVICES Marvell shall provide technical support to Intel, which
shall include answering questions, via phone and email or on-site at
Intel. Such assistance will be available to Intel personnel throughout
the term of the Agreement during Marvell's normal business hours as set
forth above.
Intel shall provide technical support to Intel, which shall include
answering questions, via phone and email or on-site at Intel. Such
assistance will be available to Marvell personnel throughout the term of
the Agreement during Marvell's normal business hours as set forth above.
Such support and assistance shall be restricted to that subject matter
related to the * * * * *.
2.1 Scope of Support Detail
(a) Marvell shall provide to Intel, technical Support for each
* * * * * release, * * * * * and use of the Marvell
Integration Technology.
(b) Marvell shall provide to Intel Debugging and Error
Correction Support for the Integration of the * * * * *
and the Intel * * * * *.
(c) Bug Fixes or Updates to the Marvell Integration Technology
that Marvell develops or distributes, to be delivered to
Intel no later than to any of Marvell's other licensees.
(d) * * * * * support as required by the Exhibit D.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Support Requirements page 1
40
INTEL CONFIDENTIAL
2.2 On-site Support
For Intel's facilities based within the continental USA, Support shall
include reasonable on-site support as required to meet the milestones
set forth in Exhibit D. For Intel's facilities based outside of
Continental USA, Marvell agrees to provide such on-site support, subject
to reasonable notice by Intel and provided that Intel agrees to pay all
actual and reasonable travel and normal business expenses of Marvell,
plus $* * * * * for each of the first 3 days and $* * * * * thereafter
for continuous days of on-site support in support of the Newbrook SOW.
For the Critical level issues as defined below, Marvell agrees to
provide on-site support within 48 hours or use its commercially
reasonable efforts to provide support as soon as possible thereafter at
Intel's sites in the USA, Europe & Middle East.
3. SUPPORT TERM
Marvell shall provide Support as set forth in this
Schedule F for the period of the Agreement.
4. ADDITIONAL SERVICES
If Intel requests any other Support not covered by this Agreement the
requested Support shall be provided upon terms and conditions mutually
agreed by the parties in writing.
5. PERFORMANCE
Marvell represents and warrants that the training and Support described
in this Exhibit D will be provided in a workmanlike manner and meet
Support Requirements below.
SUPPORT PROCESS
Technical support is based on three levels of support. Intel shall provide first
and second level support to Intel customers. Marvell shall provide third level
support to designated Intel engineers.
Xxxxx 0 Support shall mean that level of support whereby the supporting party
(Intel) provides the primary interface through direct communication with its
licensees/customers concerning Errors. The provider of Level 1 support will use
reasonable commercial efforts to accomplish problem determination (and
resolution) when Errors are reported
Level 2 Support shall mean that level of support whereby the supporting party
(Intel) undertakes reasonable commercial efforts to re-create and identify the
Errors reported to it by its licensees/customers and to provide written
documentation (and Error classification as defined below) of such Errors to the
provider of Level 3 Support (Marvell) with failure analysis data and test case
that will enable the Level 3 Support provider to re-create the reported Error.
In addition, the Level 2 Support provider will search any problem database
supplied by the Level 3 Support provider, for known Errors and provide existing
Updates to its licensees should they exist.
Level 3 Support shall mean the level of support whereby the supporting party
(Marvell) undertakes reasonable commercial efforts to correct Errors and tests
and delivers validated fixes in response to requests from the provider of Level
2 Support where Level 2 Support has exercised reasonable commercial efforts to
re-create and identify the Errors reported to it. Level 3 Support includes
updating any relevant problem database to identify Updates to known Errors.
Level 3 Support shall also provide technical guidance to Level 2 Support as
appropriate to assist Level 2 Support in resolving future Errors for their
customers/licensees.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Support Requirements page 2
41
INTEL CONFIDENTIAL
ERROR CLASSIFICATION
These classifications are determined by Intel as it relates to the support of
its customers.
Critical Means Errors which left unresolved will severely
impact a customer's ability to ship products
based on Intel Product.
Major Means Errors which cause a material deviation in
performance and/or functionality from the Intel
Product specification.
Minor Means Errors which do not cause a material
deviation in performance and/or functionality
from the Intel Product.
RESPONSE TIME OBJECTIVE
Marvell will use reasonable commercial efforts to provide Intel with a written
or electronic acknowledgement of Intel's Error notification within 24 hours
after the receipt of such Error notification.
The following time frames shall be used to specify response time objectives for
each type of Error. The targeted time frame below is defined from the time that
Intel provides written notification to Marvell, to the time that Marvell
provides an acceptable resolution to Intel. The parties understand that the
targeted response times below may not be able to be achieved, depending upon the
kind of Error.
Critical * * * * *
Major * * * * *
Minor * * * * *
ADDITIONAL RESPONSE OBJECTIVES
1. Marvell will make reasonable commercial efforts to provide selected
bug/errata reports to Intel within * * * * * Business Days of Marvell's
verification of each bug/errata for the * * * * * and those reported to
Marvell by customers other than Intel for the * * * * *. Similarly,
Marvell will make available to Intel any related work-arounds and
engineering releases containing fixes after they become available.
2. Intel will make reasonable commercial efforts to provide selected
bug/errata reports to Marvell within * * * * * Business Days of the
Intel's verification of each bug/errata for the * * * * *. Similarly,
Intel will make available to Marvell any related work-arounds and
engineering releases containing fixes after they become available.
* * * * * Portions redacted pursuant to a request for confidential treatment
filed with the Securities and Exchange Commission
Support Requirements page 3
