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Exhibit 10.45
EXECUTION COPY
EPI SERVICES AGREEMENT
This EPI Services Agreement ("Agreement") is made and entered into
this 13th day of April 1999 (the "Effective Date") by and between Samsung
Electronics Co., Ltd., a corporation organized under the laws of the Republic of
Korea ("Samsung"), and Xxxxxxxxx Korea Semiconductor Ltd., a corporation
organized under the laws of the Republic of Korea ("Fairchild"). Either Samsung
or Fairchild may be referred to herein as a "Party" or together as the
"Parties," as the case may require.
RECITALS
WHEREAS, Samsung and Xxxxxxxxx Semiconductor Corporation have entered
into a certain business transfer agreement dated as of December 20, 1998
("Business Transfer Agreement") and Xxxxxxxxx Semiconductor Corporation has
assigned its rights thereunder to Fairchild, pursuant to which Fairchild will
acquire all of the Conveyed Assets and assume all of the Assumed Liabilities
(each as defined in the Business Transfer Agreement) upon the terms and
conditions set forth in the Business Transfer Agreement; and
WHEREAS, the Parties hereto desire to enter into an agreement as
contemplated and required by the Business Transfer Agreement whereby Samsung
will provide certain EPI services to Fairchild following the Closing (as
defined in the Business Transfer Agreement), in accordance with the terms and
conditions of this Agreement; and
WHEREAS, the execution and delivery of this Agreement is required by
the Business Transfer Agreement and is a condition to the closing of the
transactions contemplated thereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings contained herein, the Parties hereto, intending to be
legally bound hereby, do agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Unless otherwise defined herein, capitalized
terms used herein shall have the meaning ascribed to such term in the Business
Transfer Agreement.
"EPI Services" shall mean epitaxial growing services.
"Facilities" shall mean Samsung's EPI Services facilities located at
Onyang, Korea.
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"Past Practices" shall mean the practices of Samsung's EPI Services
division at the Facilities and the Business occurring during calendar year 1998,
including, without limitation, practices relating to support reliability,
quality and other relevant data, engineering analysis and reports, support data
collection for yield analysis and SPC activity and production yields and reports
of EPI processes.
"Wafers" shall mean the patterned silicon wafers in terms of integrated
circuit devices and silicon bare wafers in terms of discrete devices,
respectively, with respect to which Samsung will provide the EPI Services.
"Buried Wafer" shall mean Wafers that require buried layers, identified
in Schedule 6.1 hereto by device codes beginning with AA through AR.
"Non-Buried Wafer" shall mean Wafers that do not require buried layers,
identified in Schedule 6.1 hereto by device codes beginning with D through E.
ARTICLE II
GENERAL REQUIREMENTS
Section 2.1 General Requirements
(a) Samsung shall provide EPI Services hereunder consistent
with Past Practices at the Facilities.
(b) Fairchild shall consign to Samsung, free of charge, Buried
Wafers consistent with Past Practices and Xxxxxxxxx'x technical specifications
on a CIF Onyang, Korea Facilities basis. Samsung shall not be liable for any
defective Wafer (i) to the extent such defect is a result of a defective Buried
Wafer supplied by Fairchild and (ii) that is within one percent (1%) of the
minimum yield assurance applicable to such order.
(c) Non-Buried Wafers for which EPI Services are requested
under this Agreement shall be purchased by Samsung from its existing vendors,
with the purchase price and other costs to be borne by Fairchild as provided
herein. Samsung shall provide Non-Buried Wafers in a manner consistent with Past
Practices. If Fairchild desires to provide Non-Buried Wafers in a manner
consistent with the manner Fairchild provides Buried Wafers pursuant to
paragraph (b) above, the parties shall negotiate in good faith to agree on
relevant terms to permit Fairchild to provide such Non-Buried Wafers and to
adjust the prices payable by Fairchild to reflect the provision of such
Non-Buried Wafers by Fairchild.
ARTICLE III
PACKAGE/PROCESS CHANGES NOTIFICATION
Section 3.1 Package/Process Changes Notification
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(a) If Samsung proposes to make any change affecting the EPI
Services as they are performed on the Wafers, Samsung will provide at least 30
days prior written notice to Fairchild of the intended change for Xxxxxxxxx'x
consent, which shall not be unreasonably withheld or delayed. Samsung shall be
responsible for any cost increase arising from any such change. Fairchild shall
not be responsible for any loss incurred as a result of Samsung's failure to
timely provide notification of such change.
(b) Fairchild shall provide at least thirty (30) days prior
written notice to Samsung of any proposed change in Wafer design, layout
modification, fabrication process, or other changes which may impact upon
Samsung's provision of EPI Services. Fairchild shall be responsible for any cost
increase arising from any such change. Samsung shall not be responsible for any
loss incurred as a result of Xxxxxxxxx'x failure to provide timely notification
of such change.
(c) Subject to the business requirements of both Parties, the
Parties agree to use their Best Efforts, consistent with Past Practices, to
promptly accommodate requests for urgent services or deliveries hereunder.
(d) Fairchild reserves the right to make changes to the
specifications that reflect improvements, developments or other technically
desired changes in the Buried Wafers. Fairchild shall notify Samsung of such
requested changes and Samsung shall respond within thirty (30) working days
regarding the feasibility, schedule and anticipated costs of implementing such
change orders. Once the Parties have agreed in writing to the engineering
changes, schedule and prices thereof, Samsung shall promptly take all measures
required to incorporate such change orders into the EPI Services performed on
the Wafers. If either Samsung or Fairchild desires to make any changes to the
specifications, that Party shall notify the other Party in writing and negotiate
the changes in good faith, including any changes in prices required by such
modifications. A modification to any of the foregoing will be binding only when
a writing to which such modification is attached and has been signed by both
Parties.
ARTICLE IV
INSPECTION AND WARRANTY
Section 4.1 Inspection. Fairchild shall inspect the Wafers within five
(5) days after delivery at its facility, or, with respect to inspections for
defects, after completion of the front-end process at its facility. Upon
completion of such inspection, Fairchild shall promptly report any damaged or
defective Wafers in any shipment. Fairchild reserves the right to reject any
damaged or defective Wafer.
Section 4.2 Express Warranty. Samsung warrants that the EPI Services
provided to Fairchild hereunder shall conform to all applicable specifications
and processes (or, in the absence of specifications, generally accepted industry
standards) consistent with Past Practices for EPI Services and shall be free
from defects in material and Samsung's workmanship; provided that such warranty
shall not apply to the extent defects result from Wafers supplied by Fairchild.
This warranty shall expire on the date on which EDS testing is completed;
provided that in no event shall the warranty period hereunder extend beyond the
date which is one (1) year from the date of delivery to Fairchild. If, during
the one year period:
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(a) Samsung is notified promptly upon discovery in writing by
a reasonably detailed description of any such defect in any Wafer; and
(b) Samsung, upon being reasonably satisfied with such
description, requests Fairchild to return such Wafer, and Fairchild returns
such Wafer to the Facilities at Xxxxxxxxx'x expense for inspection; and
(c) Samsung's examination reveals that the Wafer is defective,
or if the Wafer is indeed defective, and the Wafer does not meet the applicable
specification and such problems are not caused by accident, abuse, misuse,
neglect, improper storage, handling, packaging or installation, repair,
alteration or improper testing or use by someone other than Samsung, then
Samsung shall promptly credit Xxxxxxxxx'x value of such defective Wafer. Samsung
shall reimburse Fairchild for the transportation charges paid by Fairchild in
returning such defective Wafers to Samsung. If such problems, such as shortage,
damage or defective Wafers are due to Xxxxxxxxx'x fault or Wafers supplied by
Fairchild, Samsung shall be free from all liabilities.
Section 4.3 Disclaimer. THE WARRANTY SET FORTH IN SECTION 4.2
CONSTITUTES SAMSUNG'S EXCLUSIVE LIABILITY, AND XXXXXXXXX'X EXCLUSIVE REMEDY,
FOR ANY BREACH OF WARRANTY. EXCEPT AS SET FORTH IN SECTION 4.2, SAMSUNG MAKES
AND FAIRCHILD RECEIVES NO WARRANTIES ON THE SERVICES PERFORMED HEREUNDER,
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SAMSUNG SPECIFICALLY DISCLAIMS
ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE V
FORECASTS AND ORDERS
Section 5.1 Forecasts
(a) All forecasts and demand for EPI Services shall be
consistent with Past Practices. Fairchild shall provide a three (3) month
rolling forecast to Samsung no later than ten (10) days prior to the end of each
month, in terms of the volume of Wafers for EPI Services. In the event that
actual orders from Fairchild for any given first month of the forecast do not
meet, in volume, the most recent forecast provided by Fairchild for such month
(the "Minimum Monthly Commitment"), Fairchild shall, within thirty (30) days
after the end of such month, pay to Samsung an amount equal to the product of
(x) the number of additional Wafers which, if ordered, would have satisfied the
Minimum Monthly Commitment, multiplied by (y) the price per Wafer, minus
material costs, that Fairchild would have been obligated to pay for the
provision of EPI services hereunder.
(b) Fairchild may change the forecast for any month in
accordance with the following table, provided that the maximum request of
Fairchild shall not exceed the EPI Service capacity of the Facilities provided
in accordance with Past Practices. Any changes outside of those permitted under
the following table must be by written agreement of the
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Parties.
Monthly Period in
the Forecast Permitted Changes
------------ -----------------
First No change permitted
Second +/- 10%
Third +/- 15%
Section 5.2 Orders. All requests for EPI Services between Samsung and
Fairchild shall be initiated by Xxxxxxxxx'x issuance of written service request
orders with reasonable lead time sent by either registered mail or facsimile
followed by mail. Such service request orders shall be submitted to Samsung on
or before the tenth (10th) day prior to the end of each month, describing the
quantity and type of the products and shipping and invoicing instructions
requested by Fairchild for delivery the following month. By written agreement of
the Parties, service request orders may also be sent and acknowledged by
electronic data exchange or other mutually satisfactory system. In the event of
any conflict between the terms and conditions of this Agreement and either
Party's service request order, acknowledgment, or similar forms, the Parties
shall resolve such conflict in good faith.
Section 5.3 Assured Capacity. Samsung shall dedicate EPI Service
capacity at the Facilities in accordance with Past Practices.
Section 5.4 Minimum Annual Order Volume. Annual orders from Fairchild
shall exceed eighty (80) percent, in volume, of the EPI Service capacity of the
Facilities assigned for the exclusive use of power device Wafers and said EPI
Service capacity is set forth in Schedule 5.4 hereto. In addition, the product
mix by family shall not vary by more than 5% from Past Practices (the "Product
Mix Requirement"). In the event that annual orders from Fairchild do not exceed
eighty (80) percent, in volume, of such capacity or satisfy the Product Mix
Requirement, Fairchild shall, within thirty (30) days after the end of such
annual period, pay to Samsung an amount equal to the revenue which would have
been achieved had eighty (80) percent of the capacity been utilized and had
the Product Mix Requirement been satisfied, less an amount reflecting variable
costs attributable to such unutilized capacity.
ARTICLE VI
PRICES AND PAYMENT
Section 6.1 Prices. Set forth in Schedule 6.1 hereto are the prices,
expressed in U.S. Dollars, that Fairchild shall pay to Samsung for EPI Services
hereunder during the term of this Agreement. The Parties acknowledge and agree
that the prices in Schedule 6.1 hereto reflect the sum of Samsung's standard
manufacturing costs, material costs, interest and general and administrative
expenses for the EPI Services hereunder, plus a xxxx-up (without duplication) of
10%, in Korean Won with all such costs, interest, xxxx-up, and expenses being
converted into U.S. Dollars at the exchange rate of 1200 Korean Won: 1 U.S.
Dollar. The prices set forth in Schedule 6.1 hereto shall be subject to an
upward or downward adjustment to reflect any increase or decrease in the cost of
Non-Buried Wafers purchased by Samsung
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pursuant to Section 2.1 (b) and to maintain a 10% xxxx-up on such adjusted
cost.
Section 6.2 Payment. Prices shall be paid in U.S. Dollars by
telegraphic transfer. Prices are on an EX WORKS Onyang, Korea Facilities basis.
Payment terms are net thirty (30) days from the date of tax invoice. Other
payment terms shall be consistent with Past Practices.
Section 6.3 Non-Buried Wafers. For Non-Buried Wafers, the amount
(including costs of special handling) invoiced to Samsung by its vendors shall
be invoiced to Fairchild, in addition to the prices for EPI Services hereunder,
separately or in the same invoice with such prices; provided, however, that
Samsung shall not invoice Fairchild for Non-Buried Wafers to the extent the
costs thereof are included in Schedule 6.1. Payment shall be due thirty (30)
days from the date of tax invoice. Other payment terms shall be consistent with
Past Practices.
Section 6.4 Miscellaneous Charges and Taxes. Fairchild shall pay, in
addition to the prices quoted or invoiced, the amount of any special handling
charges if such charges were paid by the Business in Past Practices. Fairchild
shall also pay all sales, use, VAT, excise or other similar tax applicable to
the sale of goods or provision of services covered by this Agreement, or
Fairchild shall supply Samsung with an appropriate tax exemption certificate.
Section 6.5 Interest on Late Payments. If Fairchild fails to make any
payment due hereunder by the date it is due, Fairchild shall pay to Samsung, in
addition to the amount of such payment due, a late charge of one-twentieth of
one percent (1/20%) of the outstanding amount per day from the due date of the
payment until finally paid.
Section 6.6 Prorated Charges. Should Fairchild terminate any order
prior to process completion, Fairchild shall be charged a prorated portion of
the full price of such Wafer subject to a negotiated adjustment, based on the
process termination point, including handling incurred by Samsung in processing
the total quantity started.
Section 6.7 Additional Services. For EPI Services not reflected in
Schedule 6.1, terms shall be on an individual purchase order basis at prices to
be negotiated by the Parties; provided, however, that for EPI Services not
reflected in Schedule 6.1 but which were provided in Past Practices, the Parties
shall negotiate in good faith to determine prices for such services using a
methodology consistent with that used to determine the prices set forth in
Schedule 6.1.
ARTICLE VII
DELIVERY
Section 7.1 Delivery. Samsung shall deliver the Wafers on which the EPI
Services have been completed on the delivery dates agreed to by the Parties.
Delivery of 90% or more of the volume of each Wafer published in the order and
made within -7/+2 days of the delivery date(s) published agreed to between the
Parties shall constitute timely delivery. Delivery will be on an EX WORKS
Onyang, Korea Facilities basis, at which point shipment
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shall be deemed to be made and risk of loss and title shall pass to Fairchild.
Deliveries will be subject to incoming inspection as set forth in Section 4.1.
Section 7.2 Late Delivery. If Samsung fails to timely deliver a Wafer
in accordance with Section 7.1, Fairchild shall have the right in its sole
discretion to cancel all or any part of the purchase order pertaining to such
Wafer. Any obligation of Fairchild under any commitment to Samsung under this
Agreement associated with such cancelled purchase order shall be discharged in
full and Fairchild shall have no liability whatsoever to Samsung thereof.
Section 7.3 Packing. All Wafers delivered pursuant to the terms of this
Agreement shall be suitable, packed for shipment in containers specified by
Fairchild, marked for shipment to Xxxxxxxxx'x address set forth in the
applicable purchase order and delivered to a carrier or forwarding agent chosen
by Fairchild. Should Fairchild fail to designate a carrier, forwarding agent or
type of conveyance, Samsung shall make such designation in conformance with its
standard shipping practices. Delivery will be EX WORKS Onyang, Korea Facilities
basis, at which time risk of loss and title shall pass to Fairchild. Shipments
will be subject to incoming inspection as set forth in Section 4.1.
Section 7.4 Lot Integrity. To facilitate the inspection of deliveries
to Fairchild, lot integrity shall be maintained on all such deliveries, unless
specifically waived by mutual agreement of the Parties.
Section 7.5 Cancellation. Subject to the provisions of Section 5 and
its other obligations hereunder, Fairchild may cancel any purchase order upon 30
days written notice prior to the commencement of manufacturing without charge,
provided that Fairchild reimburses Samsung for labor costs actually incurred by
Samsung and the cost of any raw materials purchased for such order to the extent
such raw materials are not used for any other products.
Section 7.6 Production Stoppages. Fairchild may request that Samsung
stop production of Wafers in process for Xxxxxxxxx'x convenience, and Samsung
shall consider stopping depending on the point of process. In such event,
Fairchild shall pay for all Wafers at the agreed price, subject to a negotiated
adjustment based upon the degree of completion of the Wafers and whether or not
Samsung is able to use the unfilled capacity. Samsung shall, if reasonably
practicable, restart production of stopped Wafers within a reasonable time after
receipt of a written request from Fairchild, subject to Xxxxxxxxx'x payment of
any additional expenses incurred.
Section 7.7 Partially Completed Inventory. In the event that Fairchild
elects to maintain an inventory of partially finished Wafers, ownership of the
partially finished Wafers shall pass to Fairchild when they reach the holding
point defined by the relevant process flow. Samsung shall invoice Fairchild for
such Wafers, but they shall be stored under clean-room conditions and remain in
Samsung's processing WIP management system. Samsung shall inform Fairchild of
the number and types of these Wafers remaining in inventory at the end of each
month. Further, the electronic records and physical inventory shall be available
for inspection by Fairchild at any time. Samsung shall credit Fairchild with the
amount previously
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invoiced for any such Wafers at such time as they are restarted in the process
flow.
ARTICLE VIII
QUALITY CONTROL; INSPECTION; AND RELIABILITY
Section 8. 1 Specifications. Samsung shall provide EPI Services in
accordance with the specifications for the applicable Wafer. Prior to shipment,
Samsung shall perform the electrical parameter testing and other inspections
specified to be performed by it in the applicable specifications on each Wafer
lot manufactured. Samsung shall only ship those Wafer lots that successfully
pass the applicable specifications. Samsung shall electronically provide
Fairchild with the electrical test data specified in the applicable
specifications.
Section 8.2 Certification. Samsung warrants that it will maintain
ISO9002/ISO14000 certification throughout the term of this Agreement. Samsung
shall provide Fairchild notice of any audits and copies of any report or
correspondence relating to such or similar certifications.
ARTICLE IX
ON-SITE INSPECTION AND INFORMATION
Section 9.1 Inspection and Evaluation. Samsung shall allow Fairchild
and/or Xxxxxxxxx'x customers to visit and evaluate the Facilities during normal
business hours as part of established source inspection programs, it being
understood and agreed between Fairchild and Samsung that Fairchild must obtain
the concurrence of Samsung for the scheduling of all such visits, which
concurrence shall not be unreasonably withheld.
Section 9.2 Information. Upon Xxxxxxxxx'x written request, Samsung will
provide Fairchild with process control information, including but not limited
to: process and electrical test yield results, current process specifications
and conformance to specifications; calibration schedules and logs for equipment;
environmental monitor information for air, gases and DI water; documentation of
operator qualification and training; documentation of traceability through
Samsung's operation; and Samsung verification information.
ARTICLE X
PRODUCT ENGINEERING SUPPORT
Section 10.1 Engineering Cooperation. The Parties will cooperate in
allowing Fairchild employees to have reasonable access to the Facilities during
the term of this Agreement (the "Fairchild Engineering Team"), in order to
assist in Wafer developments and improvements. Samsung will provide reasonable
office space to the Fairchild Engineering Team, if required on a temporary basis
not to exceed fifteen (15) days per occurrence, at no expense to Fairchild.
Should the Fairchild Engineering Team require long-term dedicated office space,
Fairchild agrees to pay Samsung the overhead cost associated with such space.
The Fairchild Engineering Team will comply with all applicable Samsung
regulations in force at the Facilities and Fairchild hereby agrees to hold
Samsung harmless for any damages or liability caused by any member of the
Fairchild Engineering Team, which are attributable to (i) the negligence or
willful malfeasance of such member and (ii) any failure by such member to
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comply with Samsung's regulations in force at the Facilities or with applicable
law.
Section 10.2 Assistance. Samsung shall assist the efforts of the
Fairchild Engineering Team and provide Fairchild with reasonable and timely
support. Samsung shall reasonably assist Fairchild in any efforts to identify
any reliability problems that may arise in a Wafer. Fairchild shall correct
Wafer related problems and Samsung shall correct all process related problems.
ARTICLE XI
TERM AND TERMINATION
Section 11.1 Term. The term of this Agreement shall be three years from
the Effective Date. Fairchild shall have the right to renew the term for an
additional three years upon written notice to Samsung at least six (6) months
prior to the end of the initial term, provided, however, that upon renewal the
terms of this Agreement shall be subject to renegotiation. If the Parties should
fail to reach agreement on the renegotiated terms for the renewal period, then
this Agreement shall terminate upon the expiration of the initial term.
Section 11.2 Termination. This Agreement may be terminated (i) upon
mutual agreement of the Parties; (ii) by Fairchild at any time upon ninety (90)
days prior written notice to Samsung; or (iii) by one Party sending a written
notice to the other Party of the termination of this Agreement, which notice
specifies the reason for the termination, upon the happening of any one or more
of the following events:
(a) The other Party is the subject of a bankruptcy, corporate
reorganization or composition petition filed in a court of competent
jurisdiction, whether voluntary or involuntary, which petition in the event of
an involuntary petition is not dismissed within thirty (30) days; if a receiver
or trustee is appointed for all or a substantial portion of the assets of the
other Party; or if the other Party makes an assignment for the benefit of its
creditors; or
(b) The other Party fails to perform substantially any
material covenant or obligation, or breaches any material representation or
warranty provided for herein; provided, however, that no right of termination
shall arise hereunder until thirty (30) days after receipt of written notice
by the Party who has failed to perform from the other Party, specifying the
failure of performance, and said failure having not been remedied or cured
during said thirty (30) day period. For purposes of this section, material
breach shall mean a breach that would reasonably be expected to result in a
serious adverse effect on the non-breaching Party's business operations related
to the Wafers.
Section 11.3 Effect of Termination. Upon termination of this Agreement,
all rights granted hereunder shall immediately terminate and each Party shall
return to the other Party any property belonging to the other Party which is in
its possession. Xxxxxxxxx'x liability to Samsung for any costs or expenses,
including but not limited to materials, inventory and work-in-progress, arising
from any order placed by Fairchild with Samsung prior to termination shall
not be affected by the termination of this Agreement. Nothing in this Article 11
is
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intended to relieve either Party of any liability for any payment or other
obligation existing, at the time of termination. The provisions of Sections
11.3, 12.1, 12.2, 14.1, 14.2, 14.3, 14.8, 14.10, 14.12, 14.17 and 14.18 shall
survive the termination of this Agreement for any reason.
ARTICLE XII
CONFIDENTIALITY
Section 12.1 Confidentiality. Samsung and Fairchild agree that any
Confidential Information (as defined in the Confidentiality Agreement executed
between Samsung Electronics Co., Ltd. and Xxxxxxxxx Semiconductor Corporation on
September 18, 1998) each Party discloses, generates or otherwise acquires under
this Agreement, as the case may be, shall be treated in accordance with the
terms and conditions of the Confidentiality Agreement. Samsung and Fairchild
further agree that, in the event the Confidentiality Agreement expires prior to
termination or expiration of this Agreement, the terms and conditions of the
Confidentiality Agreement shall continue to apply with respect to any
Confidential Information disclosed, generated or otherwise acquired under this
Agreement.
Section 12.2 Ownership and Maintenance Of Data. All records, data
files (and the data contained therein), input materials, reports and other
materials provided to Samsung by Fairchild and derivative data computed or
processed therefrom (collectively the "Data") pursuant to this Agreement after
the Effective Date will be the exclusive property of Fairchild, and Samsung
shall not possess any interest, title, lien or right in connection therewith.
Samsung shall safeguard the Data to the same extent it protects its own similar
materials, but in no case in an unreasonable manner. Data shall not be used by
Samsung for any purpose other than in support of Samsung's obligations
hereunder. Neither the Data nor any part thereof shall be disclosed, sold,
assigned, leased or otherwise disposed of to third parties by Samsung or
commercially exploited by or on behalf of Samsung, its employees or agents. If a
Party determines that it is required to disclose any information pursuant to
applicable law or receives any demand under lawful process to disclose or
provide information of the other Party that is subject to the confidentiality
provisions hereof, such Party shall notify the other Party prior to disclosing
and providing such information and shall cooperate at the expense of the
requesting Party in seeking any reasonable protective arrangements requested by
such other Party. Subject to the foregoing, the Party that receives such request
may thereafter disclose or provide information to the extent required by such
law or by lawful process. Upon termination of this Agreement, Samsung shall
provide Fairchild reasonable access to retained Data for a period not to exceed
three (3) months following said termination whereupon, upon Xxxxxxxxx'x
request, such Data will be transferred to Fairchild at Xxxxxxxxx'x cost, except
in the event of termination by Fairchild under Section 11.2(b) by reason of
Samsung's material breach, in which case, such transfer will be made at
Samsung's cost.
ARTICLE XIII
FORCE MAJEURE
Section 13.1 Force Majeure.
(a) A Party is not liable for a failure to perform any of its
obligations
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under this Agreement insofar as it proves that the failure was due to force
majeure.
(b) Force majeure within paragraph (a) above may result from
events including, but not limited to, (i) war, whether declared or not, riots,
acts of sabotage, explosions, fires, destruction of equipment/machines, or
inability to obtain raw materials, (ii) natural disasters, such as violent
storms, earthquakes, floods and destruction by lightning, (iii) the intervention
of any Governmental Authority, (iv) boycotts, strikes and lock-outs of all kinds
and work-stoppages and (v) any other cause, whether similar or dissimilar to the
foregoing beyond the control of the Party claiming the benefit.
(c) A Party seeking relief hereunder shall as soon as
practicable after the force majeure and its effects upon its ability to perform
became known to it give notice to the other Party of such force majeure.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices. All notices hereunder shall be sufficiently
given for all purposes hereunder if in writing and delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
telecopy or other electronic transmission service to the appropriate addresses
or numbers as set forth below.
Notices to Samsung, shall be addressed to:
Samsung Electronics Co., Ltd.
Samsung Main Xxxxxxxx
000, 0-Xx, Xxxxxxxx-Xx, Xxxxx-Xx
Xxxxx, Xxxxx
Attention: Director, Legal Department
Telecopy No.: 000-000-0000
with a copy to:
Xxx, Xxx & Xxx
Hankook Tire Xxxx. 000-00
Xxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000, Xxxxx
Attention: Kap-You Xxx
Telecopy No.: 000-0000-0000
or at such other address and to the attention of such other Person as Samsung
may designate by written notice to Fairchild.
Notices to Fairchild shall be addressed to:
Xxxxxxxxx Korea Semiconductor Ltd.
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82-3, Todang-Dong
Wonmi District
Puchon City, Kyonggi Province
Korea
Attention: President
Telecopy No.: (00 00) 000-0000
with copies to:
Xxxxxxxxx Semiconductor Corporation
000 Xxxxxxx Xxxxxx, M.S. 00-00
Xxxxx Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No.: (01) (000) 000-0000
and to:
Xxx & Xxxxx
000 Xxxxx-Xxxx, Xxxxxxx-Xx
Xxxxx 000-000, Xxxxx
Attention: Y.J. Ro
Telecopy No.: (00 0)-000-0000
Or at such other address and to the attention of such other Person as Fairchild
may designate by written notice to Samsung.
Section 14.2 Indemnification. (a) Each Party (the "Indemnifying
Party"), at its own expense and cost, shall defend any suit, claim or legal
proceeding against the other Party (the "Indemnified Party") for the
infringement of patents or trademark, or claims based on allegations of
copyright, trade secret or other proprietary right infringement, by the
Indemnifying Party. The Indemnifying Party shall pay all damages and costs which
may be awarded against the Indemnified Party because of such infringement by the
Indemnifying Party.
(b) The Indemnifying Party's duties under the immediately
preceding paragraph (a) are conditional upon the Indemnified Party furnishing to
the Indemnifying Party prompt written notice of the commencement of any suit or
proceeding or any claim of infringement and a copy of each written communication
relating to the alleged infringement, and giving to the Indemnifying Party
authority and reasonable assistance (at the Indemnifying Party's expense and
cost) to defend or settle such law suit, proceeding or claim. The Indemnifying
Party shall not be bound by any settlement made without its prior consent.
Section 14.3 Governing Law: Consent to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the Republic
of Korea without reference to the choice of law principles thereof. Fairchild
and Samsung consent to and hereby submit to the non-exclusive jurisdiction of
the Seoul District Court located in the Republic of Korea in connection with any
action, suit or proceeding arising out of or relating to
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this Agreement, and each of the Parties irrevocably waives, to the fullest
extent permitted by law, any objection which it may now or hereafter have to the
laying of the venue of any such proceeding brought in such a court and any claim
that any such proceeding brought in such a court has been brought in an
inconvenient forum.
Section 14.4 Effectiveness. The Parties' obligations under this
Agreement are conditioned upon the Closing, the occurrence of which is subject
to various conditions set forth in the Business Transfer Agreement.
This Agreement shall become operative if and when the Closing occurs and shall
be null and void if the Closing does not occur for any reason.
Section 14.5 Headings: Definitions. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated.
Section 14.6 Amendment. This Agreement may not be amended, modified,
superseded, canceled, renewed or extended except by a written instrument signed
by the Party to be charged therewith.
Section 14.7 Waiver: Effect of Waiver. No provision of this Agreement
may be waived except by a written instrument signed by the Party waiving
compliance. No waiver by any Party of any of the requirements hereof or of any
of such Party's rights hereunder shall release the other Party from full
performance of its remaining obligations stated herein. No failure to exercise
or delay in exercising on the part of any Party any right, power or privilege of
such Party shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege by such Party.
Section 14.8 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be deemed invalid,
illegal or unenforceable to any extent or for any reason, such provision shall
be severed from this Agreement and the remainder of this Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law. A provision which is valid, legal and
enforceable shall be substituted for the severed provision.
Section 14.9 No Third-Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to or shall confer on any Person other than the
Parties and their respective successors or assigns any rights (including
third-party beneficiary rights), remedies, obligations or liabilities under or
by reason of this Agreement. This Agreement shall not provide third parties with
any remedy, claim, liability, reimbursement, cause of action or other right in
excess of those existing without reference to the terms of this Agreement.
Section 14.10 Interpretation; Absence of Presumption.
(a) For the purposes hereof, (i) words in the singular shall
be held to include the plural and vice versa and words of one gender shall be
held to include the other gender as the context requires, (ii) the terms
"hereof," "herein," and "herewith" and words of
13
14
similar import shall, unless otherwise stated, be construed to refer to this
Agreement as a whole (including all of the Schedules hereto) and not to any
particular provision of this Agreement, and Article, Section, paragraph and
Schedule references are to the Articles, Sections, paragraphs and Schedules to
this Agreement unless otherwise specified, (iii) the word "including" and words
of similar import when used in this Agreement means "including, without
limitation," unless the context otherwise requires or unless otherwise
specified, (iv) the word "or" shall not be exclusive, (v) provisions shall
apply, when appropriate, to successive events and transactions, and (vi) all
references to any period of days shall be deemed to be to the relevant number of
calendar days.
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the Party
drafting or causing any instrument to be drafted.
Section 14.11 Counterpart. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the Parties and delivered to the other Party.
Section 14.12 Entire Agreement. This Agreement (including agreements
incorporated herein), the Business Transfer Agreement, the Confidentiality
Agreement and the Schedules hereto contain the entire agreement between the
Parties with respect to the subject matter hereof and there are no agreements,
understandings, representations or warranties between the Parties other than
those set forth or referred to herein.
Section 14.13 Relationship of the Parties. Samsung shall perform all
services hereunder as an independent contractor. This Agreement does not create
a fiduciary or agency relationship between Samsung and Fairchild, each of which
shall be and at all times remain independent companies for all purposes
hereunder. Nothing in this Agreement is intended to make either Party a general
or special agent, joint venturer, partner or employee of the other for any
purpose.
Section 14.14 Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and assigns;
provided, however, that no Party will assign its rights or delegate its
obligations under this Agreement without the express prior written consent of
the other Party, except that (i) Fairchild may assign its rights hereunder as
collateral security to any bona fide financial institution engaged in
acquisition financing in the ordinary course providing financing to consummate
the transactions contemplated hereby or any bona fide financial institution
engaged in acquisition financing in the ordinary course through which such
financing is refunded, replaced or refinanced and any of the foregoing financial
institutions may assign such rights in connection with a sale of Fairchild in
the form then being conducted by Fairchild substantially as an entirety and (ii)
Samsung and Fairchild each may assign its rights and obligations under this
Agreement to any Entity that succeeds to substantially all of its assets and
liabilities.
Section 14.15 Fulfillment of Obligations. Any obligation of any Party
to any other Party under this Agreement, which obligation is performed,
satisfied or fulfilled by an Affiliate
14
15
of such Party, shall be deemed to have been performed, satisfied or fulfilled by
such Party.
Section 14.16 Publicity. Neither Party shall, without the approval of
the other Party, make any press release or other public announcement concerning
the terms of the transactions contemplated by this Agreement, except as and to
the extent that any such Party shall be so obligated by law or pursuant to a
lawful request of a government agency.
Section 14.17 Specific Performance. The Parties each acknowledge that,
in view of the uniqueness of the subject matter hereof, the Parties would not
have an adequate remedy at law for money damages in the event that this
Agreement were not performed in accordance with its terms, and therefore agree
that the Parties shall be entitled to specific enforcement of the terms hereof
in addition to any other remedy to which the Parties may be entitled at law or
in equity.
Section 14.18 No Consequential Damages. In no event shall either Party
be liable for any indirect, special, incidental, or consequential damages
resulting from the other Party's performance or failure to perform under this
Agreement, or the furnishing, performance, or use of any goods or services sold
pursuant hereto, whether due to breach of contract, breach of warranty,
negligence or otherwise, regardless of whether the nonperforming Party was
advised of the possibility of such damages or not.
Section 14.19 Sale of Assets. In the event that Samsung determines,
after the termination of this Agreement, to discontinue manufacturing Epi
wafers, the Parties shall enter into good-faith negotiations with respect to the
sale of the Facilities.
15
16
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed on their behalf as of the date first written above.
SAMSUNG ELECTRONICS CO., LTD.
By: /s/ Xxx Xxx
-----------------------------------
Name:
---------------------------------
Title:
---------------------------------
XXXXXXXXX KOREA SEMICONDUCTOR LTD.
By: /s/ Xxxxxx X. Xxxxxx
-----------------------------------
Name: Xxxxxx X. Xxxxxx
---------------------------------
Title: Executive V.P.
---------------------------------
16
17
Schedule 5.4
EPI capacity
Annual capacity: 1,824,000 (4"/5")
18
Schedule 6.1
PRICING AND PAYMENT
unit: USD
---------------------------------------------------------------------------------
Wafer for EPI Manufacturing General and
Services Cost Interest Administrative Profit Sum
---------------------------------------------------------------------------------
AA9258X 14.82 1.78 1.60 1.82 20.02
AE2141X 7.07 0.85 0.76 0.87 9.55
AD8301B 13.19 1.58 1.42 1.62 17.81
AD8306X 13.19 1.58 1.42 1.62 17.81
AD8329A 13.19 1.58 1.42 1.62 17.81
AE0040X 13.19 1.58 1.42 1.62 17.81
AE0311X 13.19 1.58 1.42 1.62 17.81
AE0319A 13.19 1.58 1.42 1.62 17.81
AE03248 13.17 1.58 1.42 1.62 17.78
AE0331X 11.83 1.42 1.28 1.45 15.98
AE0334X 12.90 1.55 1.39 1.58 17.43
AE0339B 13.45 1.61 1.45 1.65 18.17
AE0347X 13.46 1.62 1.45 1.65 18.18
AE0358A 13.16 1.58 1.42 1.62 17.78
AE0393A 13.47 1.62 1.45 1.65 18.19
AE0555A 6.42 0.77 0.69 0.79 8.67
AE0556X 12.63 1.52 1.36 1.55 17.06
AE0741A 12.90 1.55 1.39 1.58 17.43
AE1458A 13.19 1.58 1.42 1.62 17.81
AE2655A 13.43 1.61 1.45 1.65 18.14
AE2803A 12.92 1.55 1.40 1.59 17.45
AE2807A 12.90 1.55 1.39 1.58 17.43
AE2811B 7.29 0.87 0.79 0.90 9.85
AE2821X 7.29 0.88 0.79 0.90 9.85
AE2822A 7.30 0.88 0.79 0.90 9.86
AE3000X 12.90 1.55 1.39 1.58 17.43
AE3014X 9.29 1.11 1.00 1.14 12.54
AE3016X 9.14 1.10 0.99 1.12 12.35
AE3017X 8.95 1.07 0.97 1.10 12.09
AE3018X 8.05 0.97 0.87 0.99 10.87
AE3019X 6.96 0.83 0.75 0.85 9.40
AE3020X 8.00 0.96 0.86 0.98 10.80
AE3021X 8.16 0.98 0.88 1.00 11.02
AE3025X 7.07 0.85 0.76 0.87 9.55
AE3030X 8.11 0.97 0.88 1.00 10.96
AE3031X 8.29 0.99 0.90 1.02 11.20
AE3032X 8.04 0.96 0.87 0.99 10.85
AE3050X 6.34 0.76 0.68 0.78 8.57
AE3080X 15.13 1.82 1.63 1.86 20.44
AE3082X 8.00 0.96 0.86 0.98 10.81
AE3084X 7.84 0.94 0.85 0.96 10.59
AE3120X 7.86 0.94 0.85 0.97 10.62
AE3121X 7.21 0.87 0.78 0.89 9.74
AE3403B 13.44 1.61 1.45 1.65 18.15
AE4558C 13.46 1.62 1.45 1.65 18.19
AE7405X 7.24 0.87 0.78 0.89 9.77
AE7409X 7.53 0.90 0.81 0.93 10.18
AE9259X 14.65 1.76 1.58 1.80 19.78
AE9260X 14.35 1.72 1.55 1.76 19.39
AR0042X 12.09 1.45 1.31 1.48 16.33
AR0317X 15.79 1.89 1.71 1.94 21.33
AR0336A 12.63 1.52 1.36 1.55 17.06
19
Schedule 6.1
PRICING AND PAYMENT
unit: USD
---------------------------------------------------------------------------------
Wafer for EPI Manufacturing General and
Services Cost Interest Administrative Profit Sum
---------------------------------------------------------------------------------
AR0337X 13.19 1.58 1.42 1.62 17.81
AR0350X 13.46 1.62 1.45 1.65 18.18
AR0431A 13.45 1.61 1.45 1.65 18.17
AR0723A 13.19 1.58 1.42 1.62 17.81
AR0800A 13.45 1.61 1.45 1.65 18.16
AR1605X 13.19 1.58 1.42 1.62 17.81
AR1800A 13.17 1.58 1.42 1.62 17.80
AR1900A 13.16 1.58 1.42 1.62 17.77
AR2800A 13.19 1.58 1.42 1.62 17.81
AR3501X 13.44 1.61 1.45 1.65 18.16
AR3502X 14.68 1.76 1.59 1.80 19.83
AR3511X 8.43 1.01 0.91 1.04 11.39
AR3524X 13.44 1.61 1.45 1.65 18.16
AR3530C 15.15 1.82 1.64 1.86 20.46
AR3531B 15.26 1.83 1.65 1.87 20.61
AR3531C 15.32 1.84 1.65 1.88 20.70
AR3532X 15.34 1.84 1.66 1.88 20.72
AR3533C 15.35 1.84 1.66 1.88 20.73
AR3534X 15.36 1.84 1.66 1.89 20.75
AR3535B 15.32 1.84 1.65 1.88 20.70
AR3536C 15.31 1.84 1.65 1.88 20.68
AR3536X 15.35 1.84 1.66 1.88 20.73
AR3540X 14.04 1.68 1.52 1.72 18.96
AR3550X 15.31 1.84 1.65 1.88 20.68
AR3551X 15.32 1.84 1.65 1.88 20.69
AR3552X 13.75 1.65 1.48 1.69 18.57
AR3553X 15.42 1.85 1.67 1.89 20.83
AR3554X 15.22 1.83 1.64 1.87 20.57
AR3555X 15.26 1.83 1.65 1.87 20.62
AR3560X 12.88 1.55 1.39 1.58 17.39
AR3840B 12.22 1.47 1.32 1.50 16.51
AR3840C 13.48 1.62 1.46 1.66 18.21
AR3840X 13.41 1.61 1.45 1.65 18.12
AR3844B 13.46 1.61 1.45 1.65 18.18
AR3844C 12.90 1.55 1.39 1.58 17.43
AR7500A 13.17 1.58 1.42 1.62 17.79
AR7501X 13.55 1.63 1.46 1.66 18.31
AR7506X 13.50 1.62 1.46 1.66 18.23
AR7507A 13.46 1.62 1.45 1.65 18.19
AR7508X 13.40 1.61 1.45 1.65 18.11
AR7522A 12.87 1.54 1.39 1.58 17.39
AR7524A 12.63 1.52 1.36 1.55 17.06
AR7524B 12.91 1.55 1.39 1.59 17.44
AR7525A 14.99 1.80 1.62 1.84 20.25
AR7525X 14.99 1.80 1.62 1.84 20.25
AR7533X 12.88 1.55 1.39 1.58 17.39
AR7541X 9.13 1.10 0.99 1.12 12.34
AR7552X 13.45 1.61 1.45 1.65 18.17
AR7630X 12.88 1.55 1.39 1.58 17.40
AR7800B 13.46 1.61 1.45 1.65 18.18
AR7900A 13.46 1.62 1.45 1.65 18.19
AR7900X 13.47 1.62 1.45 1.65 18.19
AR9003X 11.58 1.39 1.25 1.42 15.64
20
Schedule 6.1
PRICING AND PAYMENT
unit: USD
---------------------------------------------------------------------------------
Wafer for EPI Manufacturing General and
Services Cost Interest Administrative Profit Sum
---------------------------------------------------------------------------------
DX0122D 20.87 2.50 2.25 2.56 28.19
DX0124D 21.53 2.58 2.33 2.64 29.09
DX02060 19.83 2.38 2.14 2.43 26.78
DX02100 20.01 2.40 2.16 2.46 27.03
DX02200 20.28 2.43 2.19 2.49 27.40
DX03100 20.01 2.40 2.16 2.46 27.03
DX03110 20.13 2.42 2.17 2.47 27.19
DX03130 20.49 2.46 2.21 2.52 27.68
DX03150 20.14 2.42 2.18 2.47 27.20
DX04280 20.32 2.44 2.19 2.50 27.45
DX05100 20.01 2.40 2.16 2.46 27.03
DX05130 20.08 2.41 2.17 2.47 27.12
DX05150 20.11 2.41 2.17 2.47 27.16
DX05500 20.97 2.52 2.26 2.57 28.32
DX06110 20.12 2.41 2.17 2.47 27.18
DX06160 20.18 2.42 2.18 2.48 27.27
DX06164 20.74 2.49 2.24 2.55 28.02
DX0726X 20.08 2.41 2.17 2.47 27.12
DX07330 20.65 2.48 2.23 2.54 27.90
DX08200 20.26 2.43 2.19 2.49 27.37
DX08210 20.36 2.44 2.20 2.50 27.51
DX08330 20.58 2.47 2.22 2.53 27.80
DX10280 20.52 2.46 2.22 2.52 27.72
DX12200 19.87 2.38 2.15 2.44 26.84
DX1220X 19.86 2.38 2.15 2.44 26.83
DX12430 20.72 2.49 2.24 2.54 27.98
DX13750 21.58 2.59 2.33 2.65 29.15
DX1393B 21.61 2.59 2.33 2.65 29.20
DX1516D 21.80 2.62 2.35 2.68 29.45
DX1526D 21.82 2.62 2.36 2.68 29.48
DX1547X 20.33 2.44 2.20 2.50 27.46
DX15550 21.11 2.53 2.28 2.59 28.51
DX1825X 20.51 2.46 2.22 2.52 27.71
DX20230 20.39 2.45 2.20 2.50 27.54
DX20240 20.54 2.46 2.22 2.52 27.74
DX20450 20.85 2.50 2.25 2.56 28.16
DX25300 20.59 2.47 2.22 2.53 27.82
DX2555X 21.08 2.53 2.28 2.59 28.47
DX2563X 21.11 2.53 2.28 2.59 28.52
DX28310 20.52 2.46 2.22 2.52 27.71
DX32350 20.21 2.42 2.18 2.48 27.30
DX32450 20.86 2.50 2.25 2.56 28.18
DX35350 20.70 2.48 2.24 2.54 27.96
DX50400 20.83 2.50 2.25 2.56 28.13
DX50500 21.14 2.54 2.28 2.60 28.55
DX50600 21.22 2.55 2.29 2.61 28.66
DX50700 21.45 2.57 2.32 2.63 28.97
EA1085X 30.43 3.65 3.29 3.74 41.10
EX0107A 30.29 3.63 3.27 3.72 40.91
EX0107X 29.42 3.53 3.18 3.61 39.73
EX0108X 30.33 3.64 3.28 3.72 40.97
EX0209X 30.16 3.62 3.26 3.70 40.74
EX0210X 30.34 3.64 3.28 3.73 40.99
21
Schedule 6.1
PRICING AND PAYMENT
unit: USD
---------------------------------------------------------------------------------
Wafer for EPI Manufacturing General and
Services Cost Interest Administrative Profit Sum
---------------------------------------------------------------------------------
EX0211X 30.37 3.64 3.28 3.73 41.02
EX0414X 31.62 3.79 3.41 3.88 42.71
EX0505X 30.68 3.68 3.31 3.77 41.45
EX0513X 30.10 3.61 3.25 3.70 40.66
EX0518X 30.77 3.69 3.32 3.78 41.56
EX0550A 42.64 5.12 4.60 5.24 57.60
EX0619X 30.79 3.70 3.33 3.78 41.59
EX0725X 31.04 3.72 3.35 3.81 41.92
EX0775X 30.06 3.61 3.25 3.69 40.61
EX0824X 30.94 3.71 3.34 3.80 41.80
EX1073A 30.73 3.69 3.32 3.77 41.51
EX1085A 42.79 5.13 4.62 5.25 57.80
EX1085X 30.26 3.63 3.27 3.72 40.88
EX1242X 31.71 3.81 3.42 3.89 42.84
EX1420X 31.78 3.81 3.43 3.90 42.92
EX1434X 31.70 3.80 3.42 3.89 42.82
EX1650X 32.05 3.85 3.46 3.94 43.29
EX1822X 31.87 3.82 3.44 3.91 43.06
EX1825X 31.43 3.77 3.39 3.86 42.45
EX1851X 32.02 3.84 3.46 3.93 43.25
EX2058X 32.36 3.88 3.49 3.97 43.71
EX2262X 32.52 3.90 3.51 3.99 43.93
EX2358X 32.36 3.88 3.49 3.97 43.71
EX2950X 31.88 3.83 3.44 3.92 43.07
EX3080X 33.21 3.98 3.59 4.08 44.85
EX3392X 33.71 4.05 3.64 4.14 45.54
EX3680X 33.20 3.98 3.59 4.08 44.84
EX4395X 33.81 4.06 3.65 4.15 45.68
