Exhibit 10.12
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CONFIDENTIAL
PROFESSIONAL SERVICES AGREEMENT
This Professional Services Agreement (the "Agreement") is made and entered into
as of the date written below (the "Effective Date") by and between AMI
SEMICONDUCTOR INC., a corporation incorporated under the laws of the state of
Delaware, USA, whose chief executive office is located at Buckskin Road 2300,
Xxxxxxxxx, XX 00000, XXX ("CUSTOMER" or AMI), and STMICROELECTRONICS NV, a
company duly organized under the law of The Netherlands, having its registered
office at Xxxxxxxxxxxxxx 0000, World Trade Center, Tower B, 17th floor, 1077XX
Amsterdam, acting for the purposes of this Agreement through its Swiss branch,
ICC - Bloc A, 20 route de Pre-Bois, 1215 Xxxxxx 00, Xxxxxxxxxxx (the
"CONTRACTOR").
WHEREAS, Pursuant to the terms and conditions of a Business Purchase Agreement
(the "BPA"), dated May 8, 2002 among Contractor, Customer, AMI Semiconductor
Belgium BVBA, a corporation incorporated and existing under the laws of Belgium
("BVBA") and Alcatel Microelectronics NV, a Belgian company ("AME")(which will
become a party to the BPA on the Completion Date (as defined in the BPA)),
Customer and AME are contemporaneously with the execution and delivery of this
Agreement selling to Contractor and certain of its Affiliates the Mixed Signal
Business (the "MSB" as defined in the BPA) of AME.
WHEREAS, for a certain period of time, Customer will require from Contractor the
delivery of certain services (as specified herein) in order to allow AME to
continue its business operations on a continuous, uninterrupted basis following
the sale of MSB to Contractor.
WHEREAS, Contractor is willing to provide those services to Customer and
Customer desires to obtain such services, subject to the terms and conditions
set forth herein.
WHEREAS, Customer and Contractor are contemporaneously with the execution of
this Agreement entering into an Agreement providing for the provision of
services by Customer to Contractor and containing substantially similar terms to
those contained in this Agreement.
NOW, THEREFORE, in consideration of the foregoing premises and the covenants
contained herein, Customer and Contractor hereby agree as follows:
1. DEFINITIONS
In this Agreement, unless the context otherwise requires, the following words
and expressions shall have the following meanings:
"AFFILIATE" of a party means a Person owning or controlling a party, or under
the same ownership or control as a party, or owned or controlled by a party, but
only so long as such ownership or control exists. Ownership or control shall
exist through the direct or indirect: (i) ownership of more than 50% of the
Equity Interests and of the Equity Interests generally entitled to vote on
matters submitted to holders of Equity Interests, or (ii) the right by any other
means to elect or appoint a majority of directors, or Persons performing similar
functions.
"CONTRACTOR TECHNOLOGY" means proprietary information and materials in
electronic design automation, CAD or CAE, electronic product manufacturing,
software tools, computer programs and their documentation, computer languages,
methods, methodologies, design flows, cell libraries, algorithms, databases,
mechanical and electronic hardware, electronic components and other materials
and technology owned or controlled by Contractor.
"DELIVERABLES" means the specific materials, devices, products or other
deliverables Contractor provides to Customer as a result of performing Services
and which are specified in the Statement(s) of Work.
"EQUITY INTERESTS" shall mean capital stock, share capital, ordinary or
preference shares, common or preferred stock, general or limited partnership
interests, limited liability company interests or any other interests in any
Person entitling the holder thereof to share in the profits or liquidation value
of a Person.
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"IP RIGHTS" means semiconductor topography rights, mask works rights, patents,
copyrights, trademarks (including service marks), trade secrets, and design
rights, whether registered or unregistered, and including any application for
registration of any of the foregoing and all rights or forms of protection of a
similar nature of having equivalent or similar effect to any of these, which may
subsist anywhere in the world.
"INNOVATIONS" means any invention, discovery, improvement, development or
innovation conceived or developed by Contractor during the term of this
Agreement and in the course of performance of the Services and whether or not
forming part of a Deliverable, including, but not limited to, blocks, database
rights, cells, models, formulas, algorithms, methods, libraries, design flows,
processes, databases, mechanical and electronic hardware, electronic components,
computers and their parts, computer languages, programs and their documentation,
encoding techniques, articles, writings, compositions, works of authorship and
improvements.
"CUSTOMER TECHNOLOGY" means the proprietary information and materials in
electronic design automation, CAD or CAE, electronic product manufacturing,
software tools, computer programs and their documentation, computer languages,
methods, methodologies, design flows, cell libraries, algorithms, databases,
mechanical and electronic hardware, electronic components and other materials
and technology owned or controlled by Customer which Contractor reasonably
requires rights to use in order to perform the Services.
"PERSON" shall include individuals, corporations, companies, partnerships,
trusts, limited liability companies and other entities.
"PROJECT SCHEDULE" means the timetable (including the required end date by which
the projects on the Statement(s) of Work must be completed) relating to the
performance of the Services set out in each Statement of Work.
"SERVICES" means the services described in the Statement(s) of Work.
"RESIDUAL INFORMATION" means ideas, concepts, know-how or techniques related to
the disclosing party's technology that are retained by the unaided memories of
the receiving party's employees who have had access to confidential information
consistent with the terms of this Agreement. An employee's memory will be
considered to be unaided if the employee has not intentionally memorized the
confidential information for the purpose of retaining and subsequently using or
disclosing it. The receiving party's use of Residual Information is subject to
valid patents, copyrights, and semiconductor mask work rights of the disclosing
party.
"STATEMENT(S) OF WORK" means the description of the Services and Deliverables to
be provided hereunder from time to time, which may include single or multiple
Statements of Work.
2. PROFESSIONAL SERVICES
2.1 Contractor will provide to Customer the Services that are described in a
Statement(s) of Work attached hereto under the terms and conditions of this
Agreement. The parties acknowledge and agree that the Statement(s) of Work
include only the current iteration of products and that Contractor has no
obligation to provide Services relating to future iterations of products (for
purposes of the foregoing an "iteration" shall mean a silicon modification which
implies a mask change from the current design as of the date hereof). Such
Statement(s) of Work may be amended or modified in a writing by both parties
hereto and attached to the Statement(s) of Work, and thereafter, the Services
shall be deemed to include the services described in such supplement or
modification.
Contractor will provide such resources and utilize such employees or design
consultants as specified in the Statement(s) of Work, or in the absence of
specific designation, as Contractor deems necessary, acting in a commercially
reasonable manner, to perform the Services. All work shall be performed at
Contractor's designated facilities specified in the Statement(s) of Work or as
mutually agreed between the parties.
2.2 Customer will provide, if necessary, Contractor with the use of the
Customer Technology.
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2.3 Contractor shall meet the project schedules, end dates and time of
performance of Services and delivery of Deliverables set forth in the
Statement(s) of Work unless such delay is caused by Customer. Customer agrees to
cooperate in good faith to allow Contractor to achieve completion of Services in
a timely and professional manner. Customer understands and agrees that
Contractor's provision of the Services may depend on completion of certain
Customer tasks or adherence to Customer schedules within Customer's control;
consequently, the project schedule, end dates, time of performance, and Services
may require adjustments or changes in the event such Customer tasks or schedules
change, are modified, or are not completed as anticipated.
2.4 In performing the Services, Contractor shall design, develop and/or make
for Customer the Deliverables as required in the Statement(s) of Work.
Contractor shall ensure that the Deliverables meet the specifications, if any,
set forth in the Statement(s) of Work for such Deliverables. In case Contractor
has reason to believe that any of the foregoing is not going to be met,
Contractor will inform Customer and the Parties will discuss in good faith
reasonable corrective actions.
2.5 If the Deliverables consist of software, then the Deliverables shall be
deemed to include in both source code and object code forms the final version
and all intermediate versions of the software and all routines and subroutines,
as well as all program materials, flowcharts, notes, outlines, work papers and
the like created or developed in connection therewith, the resulting screen
formats and other visual effects of the software, and any formulae, processes,
algorithms, ideas and other information not generally known to the public,
whether or not protected by copyright, developed or generated by Contractor in
the course of performing the Services.
2.6 Contractor is not providing or licensing to Customer any Contractor
software programs or products or other IP Rights or Contractor Technology. In
the event Contractor provides such software or other IP Rights of Contractor
Technology, such tools shall be provided only under the terms of a separate
license agreement or maintenance agreement.
2.7 Unless otherwise set forth in the Statement(s) of Work, Contractor will
undertake a close-out meeting at the conclusion of the Services.
3. NEW OR RELATED SERVICES
3.1 If in performing the Services Customer require further Services or
Deliverables over and above those specified in the Statement(s) of Work a new
or amended Statement(s) of Work must be agreed to in writing by each of the
Parties.
4. SERVICE FEES COSTS, AND EXPENSES
4.1 For the Services and Deliverables provided by Contractor, Customer agrees
to pay Contractor a fees equal to the number of hours actually worked in
providing the Services in accordance with the schedule attached as exhibit X
hereto.
provided, however, that the maximum number of hours chargeable by Contractor
for each individual project identified in the Statement(s) of Work shall not
exceed the number of hours specified on such Statement(s) of Work plus an
additional 10% of hours; provided, however, that as stated in Section 2.1,
Contractor has no obligation to provide Services relating to future iterations
of products. For the avoidance of doubt one man week shall be comprised of 40
hours.
4.2 Customer shall reimburse Contractor for all actual, reasonable travel and
out-of-pocket expenses incurred in the course of providing any Services that
must be performed by an employee, consultant or agent of Contractor away from
the facility where such person normally works.
4.3 Customer shall reimburse Contractor for all other material cost and other
out of pocket expenses incurred by Contractor in the course of providing any
Services, including, without limitation, the costs of making any masks or
prototypes.
4.4 If achievement of any project described in the Statement(s) of Work, in
whole or in part, is dependent upon performance or completion of tasks or
provision of technology, specifications, data or other information within the
control of the Customer or by a third party outside Contractor's control, the
applicable required end or delivery dates for a specific project will be
appropriately adjusted to reflect any delay caused by Customer or such third
party not caused by Contractor the effect of which is to delay completion of
such projects in whole or in part.
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4.5 The amounts payable to Contractor pursuant to this Agreement are exclusive
of any value added tax, sales or use deductions, withholding or other taxes or
governmental charges. Customer shall be responsible for payment of all such
taxes or charges, except for any taxes based solely on Contractor's net income.
5. INVOICING AND PAYMENT
5.1 For each calendar month in which Services are rendered, Contractor shall
submit to Customer an invoice within 15 days of the end of such month specifying
any fees or reimbursable expenses payable hereunder plus any VAT or other tax
related thereto, accompanied by an appropriate level of detail to permit
verification of provision of Services and of such fees and reimbursable
expenses, and the Parties shall supply each other with any supplemental
information relating to the Services or such fees and expenses that is
reasonably requested by either Party.
5.2 Amounts invoiced shall be due and payable by wire transfer of immediately
available funds within thirty (30) days following receipt of such invoice and
supporting evidence.
6. INTELLECTUAL PROPERTY RIGHTS
6.1 Customer hereby grants Contractor a royalty-free, non-exclusive, world-wide
license to use and practice the Customer Technology, and all Customer owned IP
Rights covering such Customer Technology, solely for the purpose and use of
Contractor performing the Services and developing or preparing the Deliverables
solely during the term of this Agreement. Customer represents and warrants that
to the extent Customer provides to Contractor any Customer or third party IP
Rights or Customer Technology hereunder, it has obtained all necessary
permissions, licenses, consents, and has the authority and right, to provide
such technology to Contractor.
6.2 Except as otherwise set forth herein, neither this Agreement, nor the
provision of Services hereunder, shall give either Contractor or Customer any
ownership interest in or rights to the IP Rights or other technology of the
other party. All IP Rights that are owned or controlled by a Party at the
commencement of this Agreement shall remain under the ownership or control of
such party throughout the term of this Agreement and thereafter.
6.3 All right, title, and interest in and to any and all Innovations, generated
or developed by Contractor or Contractor's personnel in the course of performing
this Agreement or any other work performed on Customers' behalf by Contractor or
its personnel, including all IP Rights therein, shall be assigned to and owned
solely by Customer, and all Innovations shall be considered works made by
Contractor and its personnel for hire for the benefit of Customer, and
Contractor shall take all reasonable actions deemed necessary by Customer to
perfect Customer's rights therein. Notwithstanding the foregoing, Customer shall
grant to Contractor a royalty free, worldwide, non-exclusive, non-transferable,
non sub-licensable (except to Contractors' Affiliates) license to use such
Innovations.
6.4 To perfect ownership of Customer IP Rights, Contractor agrees to assign to
Customer all rights Contractor may have in the Customer owned innovations, and
to assist and cooperate with Customer in all reasonable respects, subject to
reasonable availability, (a) in actions to acquire, transfer or maintain such
Customer IP Rights, including executing documents associated therewith, and (b)
in actions of enforcement of such Customer IP Rights, subject to payment by
Customer of all costs incurred by Contractor which are associated therewith.
7. LICENSE GRANT
7.1 Subject to payment in full of the amounts owed to Contractor hereunder and
compliance by the Customer with the terms and conditions hereof, Contractor
grants to Customer and its Affiliates a worldwide, non-exclusive,
non-transferable, perpetual, fully paid, royalty free license under the
Contractor IP Rights incorporated in the Deliverables for the sole purpose of
making, having made, using and selling, having sold the Customer products or
technology described in the applicable Statement of Work. Customer shall have no
rights to sublicense to third parties Contractor IP Rights except as necessary
to allow Customer to make, have made, use or sell the products or technology as
set forth in the applicable Statement of Work.
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8. LIMITED WARRANTIES AND EXCEPTIONS
8.1 Without prejudice to greater service or quality levels specified in the
Statement(s) of Work, Contractor shall use commercially reasonable best efforts
to perform the Services in a professional manner and using reasonable care the
Services will be of substantially the same quality and in substantially the same
manner of the performance as provided by AME prior to the Completion Date, as
defined in the BPA.
8.2 The warranty above is exclusive and in lieu of all other warranties,
whether express, implied, or statutory, including the implied warranties
concerning the Services or the Deliverables of merchantability, reasonable skill
and care, fitness for a particular purpose or non-infringement, which are
expressly disclaimed to the fullest extent permissible by law.
8.3 In order to receive warranty remedies, deficiencies in the Services must
be reported to Contractor in writing within on hundred eighty (180) days from
Contractor's delivery of the final milestone related to the Services subject
matter of a Statement of Work. Customer shall not make any additions, deletions
or modifications to the Deliverables except as specifically set forth in the
Contractor documentation or as authorized in writing by Contractor. Unauthorized
modification of the Deliverables shall cause immediate termination of any
applicable warranty as established above. Customer's sole remedy shall be to
have the deficiencies remedied within a reasonable period of time or to receive
a refund of the pro rata amount of the fees allocated to such Services, at
Contractor's option.
9. INDEMNIFICATION
9.1 Subject to the provisions of Sections 9.3, 10.0 and 10.2 below
Contractor hereby agrees to indemnify, defend and hold Customer, its Affiliates,
and their respective officers, directors, employees, and agents ("Customer
Indemnitees") harmless from and against any and all liabilities, losses,
damages, legal costs, and legal expenses ("Losses"), and any attorneys' fees
relating to its defense, resulting from any suit or action brought against the
Customer Indemnitees due to, infringement or any third party IP Rights, by
Customer due to the incorporation of any Contractor owned or controlled IP
Rights in any Deliverables or Services. Contractor shall not be obligated to
defend or be liable for Losses if the infringement claim arises out of
compliance with Customer's specifications or requirements, or results from an
addition to or modification by Customer to the Deliverables or the Services, or
the Customer Technology, Customer owned IP Rights, including the IP Rights
therein, or from a combination of the Deliverables or Services provided by
Contractor under this Agreement with other products or items developed or made
by third parties if such infringement would have not existed but for such
combination. Notwithstanding the foregoing, should any Deliverable or Service
become or in Contractor's opinion be likely to become, the subject of any such
suit or action for infringement, Contractor may, at Contractor's option and
expense, (1) procure for Customer the right to continue using such Deliverable
or Service, or (2) replace or modify such Deliverable or Service so that it
becomes non-infringing while still in conformity with the applicable
Statement(s) of Work, which shall extinguish Contractor's obligations hereunder.
9.2 Subject to the provisions of Sections 9.3, 10.1 and 10.2 below, Customer
hereby agrees to indemnify defend and hold Contractor, its Affiliates, and their
respective officers, directors, employees, and agents ("Contractor Indemnitees")
harmless from and against any and all Losses (as defined in Section 9.1 above),
and any attorneys' fees and expenses relating to its defense, resulting from any
suit or action brought against any of the Contractor Indemnitees due to
infringement of any third party IP Rights, by Contractor due to the authorized
use in providing the Services or delivering the Deliverables of any Customer
owned or controlled IP Rights. Provided, however, that Customer shall not be
obligated to defend or be liable for Losses if the infringement claim arises
from an addition to or modification by Contractor of the Customer's owned or
controlled IP Rights, or from a combination of the Customer's owned or
controlled IP Rights with other IP Rights if such infringement would have not
existed but for such combination.
9.3 If any claim or action is commenced against a party entitled to
indemnification under this Section for Losses resulting from such claim or
action (a "Claim"), such party shall give written notice to the other party
within ten (10) days of notice of such Claim. If such party receiving notice is
obligated under this Section to defend the party against such Claim, then the
indemnifying party shall take control of the defense and investigation of the
Claim, using such attorneys and other assistance as it selects in its
discretion. The indemnified party shall cooperate in all reasonable respects in
such investigation and defense, including trial and any appeals, provided that
such party may also participate, at its own expense, in such defense. No
settlement of a Claim that involves a remedy other than payment of money by
indemnifying party shall be agreed to and entered without the consent of the
indemnified party, which consent shall not be unreasonably withheld.
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9.4 THE FOREGOING SECTIONS 9.1, 9.2 AND 9.3 STATES THE ENTIRE LIABILITY OF
CONTRACTOR AND CUSTOMER AND THEIR RESPECTIVE AFFILIATES AND THE EXCLUSIVE REMEDY
OF CONTRACTOR AND CUSTOMER WITH RESPECT TO INFRINGEMENT, EXCEPT AS EXPRESSLY
STATED IN THESE SECTIONS, ALL WARRANTIES OF NON-INFRINGEMENT OF ANY INTELLECTUAL
PROPERTY RIGHTS ARE HEREBY DISCLAIMED BY CONTRACTOR AND CUSTOMER.
10. LIMITATION OF LIABILITY.
10.1 In no event shall either party be liable under this Agreement for any
special, consequential, incidental, indirect, punitive or exemplary damages, or
lost profits or for the cost of procurement of substitute goods or services,
however caused, whether for breach of warranty, contract, tort negligence,
strict liability or otherwise, even if such party has been advised of the
possibility of such damages.
10.2 Each party's aggregate cumulative liability to the other or Customer
Indemnitees or Contractor Indemnitees, as applicable, arising out of or related
to this Agreement shall not exceed the total amount actually paid by Customer to
Contractor under the applicable Statement(s) of Work, except that the foregoing
limitation in this section 10.2 will not apply in case of willful misconduct or
gross negligence.
11. CONFIDENTIALITY
11.1 During the term of this Agreement, either Party may disclose Confidential
Information (hereafter defined) to the other one. In such case, the following
provisions shall apply. Confidential Information means the terms of this
Agreement as well as any proprietary information and data of either Party,
contained in written or tangible form, which is marked with "Internal Use Only",
"Proprietary", "Confidential", or with other similar words. One Party's
("Disclosing Party") Confidential Information shall also include its
confidential information and data orally disclosed to the other Party
("Receiving Party") if: a reasonable summary of the same is reduced to a writing
and marked with "Proprietary", "Confidential", or with other similar words and
the writing is delivered to the Receiving Party within thirty (30) days of the
first disclosure to the Receiving Party. However, Confidential Information shall
not include any data or information which:
(a) is or becomes publicly available through no fault of the Receiving Party; is
already in the rightful possession of the Receiving Party prior to its receipt
of such data or information;
(b) is independently developed by the Receiving Party;
(c) is rightfully obtained by the Receiving Party from a third party or in the
public domain; is disclosed with the written consent of the Disclosing Party; or
(d) is disclosed pursuant to a valid order or other legal compulsion of a court
or other government body; provided, however, that Receiving Party shall, to the
extent possible: (i) prior to such disclosure promptly notify Disclosing Party
of the requirement and give Disclosing Party the opportunity to object; (ii)
upon disclosure inform the body to which the Confidential Information is
disclosed of its confidential status and shall seek to obtain confidential
treatment of such Confidential Information by such body; and (iii) disclose only
such Confidential Information as is strictly required by such order.
11.2 Each Party undertakes to use the same degree of care as it uses with
respect to its own information of a similar nature to avoid disclosing the
Confidential Information received from the other Party unless the Disclosing
Party previously consented in writing to such disclosure. Notwithstanding the
foregoing, the Receiving Party shall, during the term of this Agreement, and for
a period of three (3) years from the termination or expiration of this
Agreement, hold all Confidential Information of the Disclosing Party received,
in confidence.
11.3 The Parties shall not use the Confidential Information for purposes other
than for the purpose of this Agreement.
11.4 Either Party may disclose any Confidential Information to its and its
Affiliates' employees having the reasonable need for access to such Confidential
Information in connection with or during the performance of this Agreement or
their employment responsibilities and the Parties shall ensure that such
employees comply with the provisions of this Section.
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11.5 Upon termination or expiration of this Agreement, either Party shall return
to the other party all Confidential Information, whether in written, documentary
or other form, as well as computer programs, software and technical drawings
other than any Confidential Information that is required to be retained under
applicable law or which is necessary to defend against or prosecute any claim
hereunder.
11.6 Neither Party shall in any manner disclose to third parties, advertise or
publish the fact it has entered into or the terms of this Agreement except by
the express written consent of the other Party.
11.7 Notwithstanding the foregoing, either Party may disclose the fact of
entering into this Agreement and its terms (i) to its advisors or to any Person
providing it with finance, subject to such Person agreeing to keep such
information confidential, or (ii) in any prospectus, offering memorandum or
other similar document. Provided, that such disclosure is necessary and provided
that prior to such disclosure the party desiring to disclose shall send to other
party a formal notice indicating that such disclosure is necessary and the
timing of such disclosure.
11.8 The parties acknowledge and agree that they and their respective employees
may utilize for any purpose any Residual Information resulting from performing
the Services or having access to Confidential Information.
11.9 Nothing in this Section 11 shall limit either party's right to
independently develop information, materials, technology, or other products or
services for itself or for others which may compete with the other party or
which may be similar to the Confidential Information, as the case may be, so
long as no unauthorized disclosures have been made by the party during the term
of the confidentiality obligation and there was no unauthorized use of the
Confidential Information in the independent development. Subject to the
limitations placed on Contractor by the confidentiality provisions of this
Agreement, Contractor may in its sole discretion develop, use, market, license,
offer for sale, or sell any software, application, or product that is similar or
related to that which was developed by Contractor for Customer hereunder.
11.10 Each party acknowledges that unauthorized disclosure or use of the
Confidential Information may cause irreparable harm to the other party for which
recovery of money damages would be inadequate, and the other party shall
therefore be entitled to obtain timely injunctive relief to protect its rights
under this Agreement, in addition to any and all remedies available at law.
12. TERM AND TERMINATION
12.1 This Agreement commences on the Effective Date and, unless terminated
earlier pursuant to the terms of this Agreement, shall continue in force until
completion of the Services, provided, however, subject to Contractor reasonable
prior notice to Customer, the Agreement shall automatically terminate no later
than the certain date indicated in the Statement of Work, if Contractor after
having used reasonable effort is unable to complete the Services. A party shall
have the right to terminate this Agreement at any time upon or after the filing
by or against the other party of a petition in bankruptcy or insolvency, or upon
or after the appointment of a receiver for all or substantially all the property
of the other party unless such receivership is terminated or petition dismissed
without prejudice within thirty (30) days, or upon or after the making by the
other party or any proceedings for the liquidation or winding up of its
business, or for the termination of its corporate charter; and upon exercise of
such right, this Agreement shall terminate fifteen (15) days after notice in
writing to that effect has been given by the party to the other party.
12.2 This Agreement or any Statement of Work hereunder may be terminated by
either party upon thirty (30) days prior written notice if the other party
materially breaches or fails to perform any material term hereof or in the
applicable Statement of Work, respectively, and the breaching party fails to
cure such breach within the thirty (30) day period.
12.3 Each party's obligations under Sections 4, 5, 6, 7, 8, 9, 10, 11, 12, 14,
15 and 16 of the Agreement shall survive termination or expiration of the
Agreement.
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13. INDEPENDENT CONTRACTORS
Contractor shall perform the Services as an independent contractor and nothing
contained in this Agreement shall be construed to create or imply a joint
venture, partnership, principal-agent or employment relationship between the
parties. Neither party shall take any action or permit any action to be taken
on its behalf which purports to be done in the name of or on behalf of the
other party and shall have no power or authority to bind the other party to
assume or create any obligation or responsibility express or implied on the
other party's behalf or in its name, nor shall such party represent to any one
that it has such power or authority.
14. GOVERNING LAW
This Agreement will be governed by the laws of France. This Agreement is
prepared and executed and shall be interpreted in the English language only,
and no translation of the Agreement into another language shall have any
effect. The parties agree that the United Nations Convention on Contracts for
the International Sale of Goods (1980) is specifically excluded from and shall
not apply to this Agreement.
15. DISPUTE RESOLUTION
Any dispute arising out of this Agreement shall be conducted in accordance with
clauses 27.2 through 27.10, inclusive, of the Business Purchase Agreement
executed among AMI Semiconductor Inc., Contractor and Customer and dated May
8th 2002.
16. MISCELLANEOUS
16.1 NOTICES. Notices to be given or submitted by either party to other
pursuant to this Agreement shall be in writing and directed in the case of the
Customer to the address above, attention: General Counsel, and in the case of
Contractor to the address above, attention: Legal Counsel.
16.2 SEVERABILITY. If any term or provision of this Agreement is determined to
be invalid or unenforceable for any reason, it shall be adjusted rather than
voided, if possible, to achieve the intent of the parties to the fullest extent
possible. In any event, all other terms and provisions shall be deemed valid
and enforceable to the maximum extent possible.
16.3 FORCE MAJEURE. Neither Party shall be liable for the non-performance of any
of their obligations hereunder, if and to the extent only that such
non-performance is caused by an event of force majeure, which means acts of God,
war, war-like condition, embargoes, riots and other unforeseen events beyond
their reasonable control and which cannot be prevented. To the extent possible,
in the event that such failure or delay occurs, the affected Party shall notify
in writing the other Party of the occurrence thereof as soon as possible and the
Parties shall discuss the best way to resolve the event of force majeure.
16.4 Performance of all affected Services shall be made on a revised schedule
(to be mutually agreed upon), that shall, at least, take into account the delay
incurred.
16.5 By reason solely of force majeure neither Party shall have any claim for
relief or other damages against the other Party in respect of such delay in
performance or non-performance.
16.6 AUTHORIZATION. This Agreement and any supplement to it shall be binding on
the parties only after acceptance by officers or authorized representatives of
Contractor and Customer.
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16.7 ASSIGNMENT. Unless for a given project a designated sub-contractor has
been mutually agreed between the Parties and specifically identified in writing
in the relevant Statement of Work, neither party shall assign any portion of its
rights, duties, or obligations under this Agreement and any attempt to do so
shall be void unless the other party gives its approval to the assignment after
receiving written notification. The approval itself must also be in writing and
sent by certified or registered mail or courier service to the party seeking
assignment. As used in this Agreement, the following shall be deemed an
assignment: (1) any dissolution, merger, consolidation, or other reorganization
of or affecting the Customer, whether or not Customer is the surviving corporate
entity; and (2) the sale or transfer, by one or more transactions, of stock
possessing more than fifty percent (50%) of the total combined voting power of
all classes of Customer's capital stock issued, outstanding and entitled to vote
for the election of its directors.
16.8 COMPLETE AGREEMENT. Customer acknowledges that it has read, understands
and agrees to be bound by this Agreement, and that this Agreement including the
attached Statement(s) of Work, are the complete and exclusive statement of the
agreement between the parties regarding the subject matter hereof, which
supersedes all proposals, oral or written, all other communications between the
parties relating to such subject matter. In the event of any conflict between
the Agreement and a Statement of Work or any subsequent attachment hereto, the
terms of this Agreement shall control.
16.9 MODIFICATION. This Agreement and any term of a Statement of Work may be
modified only by a written instrument duly executed by an authorized
representative of Contractor and Customer.
16.10 NO WAIVER. The failure of a party to enforce any provision of this
Agreement shall not constitute a waiver of such provision or the right of such
party to enforce such provision or any other provision.
16.11 INTERPRETATION. In construing or interpreting this Agreement, the word
"or" shall mean either or both, and the word "including" shall not be limiting
or exclusive. This Agreement shall be fairly interpreted in accordance with its
terms without any strict construction in favor of or against either party and
ambiguities shall not be interpreted against the drafting party.
PAGE 9 OF 14
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CONFIDENTIAL
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date
EXECUTED BY STMICROELECTRONICS NV:
Signature: /s/ Xxxxxxxx Xxxxxxx
-----------------------------------------------
Name: XXXXXXXX XXXXXXX
----------------------------------------------------
Title:
---------------------------------------------------
Date: 26 June 2002
---------------------------------------------------
EXECUTED BY AMI SEMICONDUCTOR INC.
Signature: /s/ Xxxxxxxxx Xxxx
-----------------------------------------------
Name: XXXXXXXXX XXXX
----------------------------------------------------
Title: PRESIDENT & CEO
---------------------------------------------------
Date: June 26, 2002
---------------------------------------------------
PAGE 10 OF 14
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Confidential
EXHIBIT Z
TSA REQUIREMENTS - SERVICES REQUIRED BY AMI-S FROM STM - PRODUCT DEVELOPMENT -
REVISION 4.0 - JUNE 6, 2002
TSA DETAILS TO FINISH COMMITTED TELECOM ASIC PROJECTS & CAD ACTIVITIES SUPPORT
----------------------------------------------------------------------------------------------------------------------------------
PROJECT STATUS WORK DESCRIPTION RESOURCE LOCATION DELIVERABLE MW END DATE
----------------------------------------------------------------------------------------------------------------------------------
CIVA Customer evaluation Support RD/R1 Xxxxxxxxx Xxxxxx Milan note 1 2 02/52
----------------------------------------------------------------------------------------------------------------------------------
CRIA Customer evaluation Support RD/R1 Xxxxx Xxxxxx Istanbul note 1 10 02/52
Support RD/R1 Asil Arsian Istanbul note 1 2 02/52
Support RD/R1 Xxxxxxxxx Xxxxxx Milan note 1 4 02/52
----------------------------------------------------------------------------------------------------------------------------------
MARB Customer evaluation Support RD/R1 Xxxxxxx Xxxxxxxxx Milan note 1 4 02/52
Support RD/R1 Asil Arsian Istanbul note 1 2 02/52
----------------------------------------------------------------------------------------------------------------------------------
GLIA Customer evaluation Support RD/R1 Allessandro Ingrazie Padova note 1 2 02/52
----------------------------------------------------------------------------------------------------------------------------------
TNIA RD Support R1 Glanvito Xxxxxxx Xxxxx note 1 1 02/28
----------------------------------------------------------------------------------------------------------------------------------
TSMA ???Illegible??? Support RD/R1 Xxxxxx Xxxxx Istanbul note 1 4 02/39
Improvement Support RD/R1 Xxxxx Xxxxxx Milan note 1 1 02/39
----------------------------------------------------------------------------------------------------------------------------------
PESA Design ongoing design support, RD/R1 Xxxxxxxx Xxxxxxxx Milan note 1 11 02/36
RD/R1 Xxxxxxxx Xxxxxxxx Milan note 1 2 03/05
----------------------------------------------------------------------------------------------------------------------------------
FLMA Design ongoing Design iteration 1 Illker Ertylmaz Istanbul tested prototypes,
note 1 02/40
Design iteration 1 Zeynep Toprok Istanbul tested prototypes,
note 1 02/40
Design iteration 1 Xxxxx Xxxxx Istanbul tested prototypes,
note 1 02/40
Design iteration 1 Xxxxx Xxxxxx Istanbul tested prototypes,
note 1 02/40
Design iteration 1 Erdem Karaadam Istanbul tested prototypes,
note 1 02/30
Design iteration 1 Total Manpower Istanbul tested prototypes,
note 1 40 02/40
Support measurements
iteration 1 Xxxxx Xxxxxx Istanbul tested prototypes,
note 1 4 02/52
METAL FIX ONLY Design iteration 2 Xxxxx Xxxxxx Istanbul tested prototype 2,
note 1 4 03/04
METAL FIX ONLY Support measurements
iteration 2 Xxxxx Xxxxxx Istanbul note 1 3 03/17
----------------------------------------------------------------------------------------------------------------------------------
CARA Design ongoing Design support for
debug Milan team Milan note 1, note 3
Design support for
debug high speed part Istanbul team Istanbul note 1, note 3
Design support,
STA, ATPG Milan team Milan note 1, note 3
P&R P&R team Brussels note 1, note 3 13 02/52
Support RD/R1 X. Xx Xxxxxxx Milan note 1, note 3 13 02/52
----------------------------------------------------------------------------------------------------------------------------------
IRIA RD Support R1 Xxxxxx Xxxxxx Velizy note 1 1 02/39
Support R1 Asil Arsian Istanbul note 1 1 02/39
---------------------------------------------------------------------------- ---------- --------------------------
OSIA RD Support R1 Xxxxxx Xxxxxx Velizy note 1 1 02/39
Support R1 Asil Arsian Istanbul note 1 1 02/39
----------------------------------------------------------------------------------------------------------------------------------
BIBA Customer evaluation Support RD/R1 Xxxxxx Xxxxxx Velizy note 1 1 02/39
----------------------------------------------------------------------------------------------------------------------------------
PAGE 11 OF 14
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CONFIDENTIAL
Project Status Work description Resource Location
------------ ------------------- --------------------- --------------- --------
Support RO/R1 Xxxx Xxxxxx Istanbul
XXXX Customer evaluation Support RO/R1 Xxxxx Xxxxxx Velizy
Support RO/R1 Xxxx Xxxxxx Istanbul
MRUC Customer evaluation Support RO/R1 Xxxxx Xxxxxx Velizy
MRUD Start design support, RO/R1 Xxxxx Xxxxxx Velizy
RG1A R1 Yield optimization support Xxxxxx Xxxxxx Velizy
XBUB Customer evaluation Support RO/R1 Xxxxx Xxxxxx Velizy
Misc Velizy Database transfer All project leaders Velizy
Misc Milan Database transfer All project leaders Milan
Misc Istanbul Database transfer All project leaders Istanbul
Misc Istanbul Knowledge transfer high speed code All project leaders Istanbul
Misc Velizy Management Ludovic (Illegible) Velizy
Misc Milan Management Pierpaolo Pomati Milan
Misc Istanbul Management Asil Arslan Istanbul
General support on ADS
* no new script of new loadflow developments
- more help on fixing AME design kit problems where
the knowledge is originally with people transferred to ST
and where due to the specificity of the problem it is not
CAD possible to transfer the knowledge before closing All ST CAD team Brussels
CAD All ST CAD team Brussels
Deliverable MW End Date
--------------------------- -- --------
XXXX note 1 1 02/39
MRUC note 1 2 02/39
MRUD note 1 1 02/39
RG1A note 1 1 02/39
XBUB note 1 4 02/39
Misc Velizy note 1 1 02/39
Misc Milan note 1 1 02/39
Misc Istanbul all database transferred (") 1 02/39
Misc Istanbul all database transferred (") 1 02/38
Misc Velizy all database transferred (") 1 02/39
Misc Milan all database transferred (")*
Misc Istanbul training done 4 02/43
2 02/52
2 02/52
4 02/52
note 2 11 02/52
note 2 11 03/26
(") Full database transfer (Test benches and vectors, basic coverage,
VHDL/Verlog code, microarchitecture and any other component of end ADB
database)
NOTES:
1) Give support on actions related to R0 or R1. Support questions can be handled
in the remote location. Support questions can include questions related to (but
not limited to) CPK 8 Instability (support from design but ownership of
engineering). ESD questions, instructions, valid. It could be possible that data
need to be looked up in the design database or that basic simulations need to be
redone. The leadtime to answer should not exceed 2 working days. If the answer
can not be provided in 2 working days a planning to give the answer must be
provided. The total support manpower can not exceed the manpower in the MW
column, the support will not extend the "End Date" column. If support reaches R1
status, no support will be asked.
2) Give support on questions related to the AME design kit. Support questions
can be handled in the remote location. Support questions can include questions
related to (but not limited to) scripts for the analog and digital endorsements,
bonding editor, Place and Route environment, transferred or licensed BT Monitors
and compilers. The leadtime to answer should not exceed 2 working days. If the
answer can not be provided in 2 working days a planning to give the answer must
be provided. The total support manpower can not exceed the manpower in the MW
column, the support will not extend the "End Date" column.
3) For Care project S7 will provide on request new memory cut coming from his
own memory generator.
PAGE 12 OF 14
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CONFIDENTIAL
TBA DETAILS TO FINISH COMMITTED PABU PROJECTS & TO SUPPORT PAE ACTIVITIES FROM VALLAY.
----------------------------------------------------------------------------------
Project Status Work description Resources Location Deliverable MW End Date
----------------------------------------------------------------------------------------------------------------------------
SEBA In design Transfer of the digital
to X. Xxxxxxxxxx A.C. Chanveau Velizy [**] 3 02/28
----------------------------------------------------------------------------------------------------------------------------
MAFA In design Transfer of the digital
to X. Xxxxxx X. Xxxxxx Velizy [**] 4 02/30
----------------------------------------------------------------------------------------------------------------------------
AFCB ROM updates >RO Transfer of the digital database
to X. Xxxxxxxx X. Xxxxxx Velizy [**] 2 02/29
----------------------------------------------------------------------------------------------------------------------------
LEDA In design Transfer digital sign-off database
to X. Xxxxxxxx X. Xxxxxxx (subc) Velizy [**] 3 02/29
----------------------------------------------------------------------------------------------------------------------------
Subcontractor The 3 subcontractors in Vallay X. Xxxxxxx, Velizy Letter to
a on LIN must stay with AMI-5 X. Xxxxxx and subcontractor
P. Amaud signed by ST
----------------------------------------------------------------------------------------------------------------------------
Note: the design support as depicted in this table extends to week 230. It
requires cooperation between engineers in Velizy and Zaventem and
availability of AMI CAD tool's on ST site
(**) 1) Project overview
2) list of remaining actions to go to production
3) Full database transfer (Test benches and vectors, fast coverages,
VHDL/Verilog code, Microarchitecture and any other component
of the CAD database)
TSA DETAILS TO FINISH COMMITTED PROJECTS ON SHPOTS, XXXX AMD BATTERY MANAGEMENT
----------------------------------------------------------------------------------
Project Status Work Description Resources Location Deliverable MW End Date
----------------------------------------------------------------------------------------------------------------------------
SHPOTS In Support Stefan
qualification Vanhaeverbeke Zaventem [**] 2 02/52
----------------------------------------------------------------------------------------------------------------------------
ISDN In qualification Support Stefan
Vanhaeverbeke Zaventem [**] 2 02/52
----------------------------------------------------------------------------------------------------------------------------
ISDN PTI off hook CLIP support/pay subcontractor to subc. Xxxx Mechelen [**] 1 02/50
for obligation solve contractual obligation Buckingham
in PTI project to PTI
----------------------------------------------------------------------------------------------------------------------------
(**) 1) Project overview
2) Full database transfer (Test benches and vectors, fast coverage,
VHDL/Verilog code, Microarchitecture and any other component of
the CAD database)
-- end of table --
PAGE 13 OF 14
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CONFIDENTIAL
EXHIBIT X
PRICING OF ENGINEERING SERVICES
Pricing will be according to the following rules
Service Price per hour
---------------------------------------
Engineering 80 Euro
Product engineering 92 Euro
Test engineering 110 Euro
- Out of pocket expenses (e.g. traveling, materials, silicon, packaging) are to
be reimbursed separately on a cost basis.
- These prices will be applied to the effective hours worked. If the effective
hours worked exceed the forecast of the Exhibit Z by more than 10%, no
additional compensation for the completion of the work will be due.
- Exhibit Z provides the forecast assuming that one design iteration is
performed for each product (for product C174 an additional iteration called
OBB is undergoing).
- Parties may agree for services on additional design iterations: in any such
case the pricing will be according to the rules set in this exhibit.
- A design iteration is defined as: "Every Silicon Modification which implies a
Mask Change from the current design as of the date hereof".
PAGE 14 OF 14
