EXHIBIT 6.1(1)
CONFIDENTIAL TREATMENT REQUESTED: THE PORTIONS OF THIS AGREEMENT MARKED BY *
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
This Amendment No. 1, effective as of 26 June 2003 ("Effective Date"), to the
"SF Process Development and Cost Sharing Agreement" of November 26, 2002
(hereinafter referred to as the "2-Way Agreement") by and between International
Business Machines Corporation ("IBM"), incorporated under the laws of the State
of New York, U.S.A. and having an office for the transaction of business at 0000
Xxxxx 00, Xxxxxxxx Xxxxxxxx, XX 00000, U.S.A., and Chartered Semiconductor
Manufacturing Ltd. ("Chartered"), incorporated under the laws of Singapore and
having an office for the transaction of business at 00 Xxxxxxxxx Xxxxxxxxxx Xxxx
X, Xxxxxx 0, Xxxxxxxxx 000000. IBM and Chartered may be individually referred to
herein as a "Party", or collectively as the "Parties."
WHEREAS, the Parties previously entered into the 2-Way Agreement;
WHEREAS, Infineon Technologies AG ("Infineon") has expressed a desire to jointly
develop 300mm Wafer 65nm and 45nm Bulk CMOS logic technology with the Parties,
and both Parties desire to work with Infineon in carrying out such joint
development;
WHEREAS, contemporaneously with this Amendment No. 1 to the 2-Way Agreement, the
Parties are entering into an agreement with Infineon, entitled "SF Process
65nm/45nm Development and Cost Sharing Agreement," (hereinafter referred to as
the "3-Way Agreement"), under which all three parties will jointly develop 300mm
Wafer 65nm and 45nm Bulk CMOS logic technology;
WHEREAS, the Parties wish to address certain matters between them pertaining to
the 3-Way Agreement in this Amendment No. 1 to the 2-Way Agreement;
NOW THEREFORE, in consideration of the premises and mutual covenants contained
herein, as well as for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows:
1. The 2-Way Agreement shall continue in full force and effect as to the 300mm
Wafer 90nm Bulk CMOS Process Development Project.
2. The Parties agree that as of the effective date of the 3-Way Agreement, all
development activities heretofore conducted under the 2-Way Agreement for the
300mm Wafer 65nm Bulk CMOS Development Project shall be continued and conducted
under the 3-Way Agreement. Moreover, the Parties agree that as of the effective
date of the 3-Way Agreement, all
Page 1
development activities for 300mm Wafer 45nm Bulk CMOS shall be conducted under
the 3-Way Agreement.
3. The Parties agree that as of the effective date of the 3-Way Agreement, the
rights and obligations of the Parties as to the 300mm Wafer 65nm Bulk CMOS
Development Project shall be as set forth in the 3-Way Agreement; provided,
however, that in addition, the following provisions of the 2-Way Agreement as
modified herein shall continue in full force and effect as to the 300mm Wafer
65nm Bulk CMOS Development Project as between IBM and Chartered, and shall
supercede and control over any contrary or inconsistent provision in the 3-Way
Agreement:
a. The definitions of "Background Know-How," "Chartered Fab 7 Facility,"
"Chartered Jointly Owned Facility," "Chartered Joint Development Partner,"
"Chartered Qualification and Process Freeze," "Chartered Transfer Coordinator,"
"Foundry Company," "Process Development Projects," "Specific Results," and "IBM
Transfer Coordinator".
b. Sections 3.1.2, 3.6 and 4.10;
c. Sections 5.1 and 7.1;
d. Those portions of Section 7.6 applicable to the 300mm Wafer 65nm Bulk CMOS
Process Development Project, with the following changes and clarifications:
- In Section 7.6.6.1(b), after "*****" add ", or ***** and
- In Section 7.6.6.2, last paragraph before Section 7.6.6.3, the parties
agree that for the avoidance of doubt none of such provisions shall apply
to any payment made by Infineon Technologies AG to IBM.
e. Those portions of Section 7.10.1-7.10.3 applicable to the 300mm Wafer 65nm
Bulk CMOS Process Development Project. For the avoidance of doubt, none of such
provisions shall apply to the rights and licenses set forth in the 3-Way
Agreement to Infineon as of the Effective Date thereof, nor to any of the
licenses granted by Infineon thereunder;
f. Section 7.11 and 7.12;
g. Section 9.1, last sentence;
h. Section 11.2, 5th sentence shall apply, but only to joint inventions by
Chartered and IBM;
i. Section 12.2, last sentence; and
j. Exhibit H.
Also, notwithstanding anything to the contrary in the 3-Way Agreement, should
Infineon either (a) exercise the process of Section 3.1.2 so as to not
participate in the 300mm Wafer 65nm Bulk
Page 2
CMOS Process Development Project, or (b) unilaterally breach the 3-Way Agreement
such that their participation in the 300mm Wafer 65nm Bulk CMOS Process
Development Agreement is terminated, the Parties hereto agree that they shall
continue such Project under the 2-Way Agreement without regard to this Amendment
No. 1, at which point this Amendment No. 1 shall be considered rescinded as to
the 300mm Wafer 65nm Bulk CMOS Process Development Project. The Parties shall
continue such development pursuant to the Strategic Technology Objectives and
the Development Schedule, as well as Exhibits A and B, for the 300mm Wafer 65nm
Bulk CMOS Process Development Project as may then be in place under the 3-Way
Agreement, unless otherwise agreed by the Management Committee.
4. The Parties agree that as of the effective date of the 3-Way Agreement, the
rights and obligations of the Parties as to the 300mm Wafer 45nm Bulk CMOS
Development Project shall be as set forth in the 3-Way Agreement; provided,
however, that in addition, should Chartered participate in the 45nm Bulk CMOS
Process Development Project, the following provisions of the 2-Way Agreement
shall continue in full force and effect as to the 300mm Wafer 45nm Bulk CMOS
Development Project, and shall supercede and control over any contrary or
inconsistent provision in the 3-Way Agreement:
a. The definitions of "Chartered Fab 7 Facility," and "Chartered Jointly Owned
Facility."
b. Section 5.1 would be amended by mutual agreement, as part of the Parties'
agreement to continue the 300mm Wafer 45nm Bulk CMOS Process Development Project
after ***** as set forth in Section 3.1.1 of the 3-Way Agreement.
c. Those portions of Section 7.6 applicable to the 300mm Wafer 65nm Bulk CMOS
Process Development Project shall also apply to the 45nm Bulk CMOS Project, with
the following changes and clarifications:
- In Section 7.6.6.1(b), after "*****" add ", *****," and
- In Section 7.6.6.2, last paragraph before Section 7.6.6.3, the parties
agree that for the avoidance of doubt none of such provisions shall apply
to any payment made by Infineon Technologies AG to IBM.
Note, the financial provisions of Section 7.6 (namely, the royalties of the
first paragraph of 7.6.6.2, and the fee and royalty sharing of the last
paragraph of 7.6.6.2) shall be as agreed to by the Parties in a separate
agreement, as part of the Parties' agreement to continue the 300mm Wafer 45nm
Bulk CMOS Process Development Project after ***** as set forth in Section 3.1.1
of the 3-Way Agreement.
d. Those portions of Section 7.10.1-7.10.3 applicable to the 300mm Wafer 65nm
Bulk CMOS Process Development Project shall also apply to the 45nm Bulk CMOS
Project. Note, the financial provisions of Section 7.10.1 shall be as agreed to
by the Parties in a separate agreement, as part of the Parties' agreement to
continue the 300mm Wafer 45nm Bulk CMOS Process Development Project after *****
as set forth in Section 3.1.1 of the 3-Way Agreement. For the avoidance of
doubt, none of such provisions shall apply to the rights and licenses set forth
in the
Page 3
3-Way Agreement to Infineon as of the Effective Date thereof, nor to any of the
licenses granted by Infineon thereunder
e. Sections 7.11.
f. Section 9.1, last sentence; and
g. Section 11.2, 5th sentence shall apply, but only to joint inventions by
Chartered and IBM.
Also, notwithstanding anything to the contrary in the 3-Way Agreement, should
Infineon (a) exercise the process of Section 3.1.2 so as to no longer
participate in the 300mm Wafer 45nm Bulk CMOS Process Development Project, or
(b) unilaterally breach the 3-Way Agreement such that their participation in the
300mm Wafer 45nm Bulk CMOS Process Development Agreement is terminated, or (c)
not elect to continue to participate in the 300mm Wafer 45nm Bulk CMOS Process
Development Project after *****, the Parties hereto agree that by mutual
agreement they may elect to continue such Project under the 2-Way Agreement as
amended under this Amendment No. 1, with further amendments (such as financial)
as may be mutually agreed.
5. For the avoidance of doubt, the Parties agree that for all of the Specific
Results and Background Know-How, for any and all of the 90nm, 65nm, and 45nm
Bulk CMOS Process Development Projects, the provisions of Sections 7.10.1-7.10.3
do not apply to any disclosures or sublicenses of less than the complete
process, and does not apply to any disclosures or sublicenses of less than
substantially all of the complete process, as developed under the applicable
Process Development Project.
6. The following Sections of the 2-Way Agreement are hereby amended so as to
delete certain *****, as follows:
a. 7.6.6.4 shall be rewritten as follows:
"Chartered shall secure a written agreement with such ***** that are co-owners
pursuant to Section 7.6.6.1, by which the other owner agrees that it will abide
by the applicable provisions of this Section 7.6."
b. 7.11(b)(iv) is hereby terminated.
For the avoidance of doubt, such provisions shall be deemed rewritten and
terminated, respectively, as to both the 90nm Bulk CMOS Specific Results and
Background Know-How and the 65nm Bulk CMOS Specific Results and Background
Know-How.
7. IBM hereby represents that in its bilateral agreement with Infineon entered
into as of the Effective Date of this Amendment No. 1, Infineon is not granted
any disclosure rights in addition to those set forth in the 3-Way Agreement.
Chartered hereby acknowledges and agrees that IBM may unilaterally amend the
disclosure rights granted to Infineon in the 3-Way Agreement, by way of one or
more separate IBM-Infineon bilateral agreements; *****.
Page 4
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
CHARTERED SEMICONDUCTOR MANUFACTURING INTERNATIONAL BUSINESS MACHINES
LIMITED CORPORATION
By: /s/ Chia Song Hwee By: /s/ Xxxxxxx X. Xxxxxx
------------------------------ ---------------------------
Name: Chia Song Hwee Name: Xxxxxxx X. Xxxxxx
Title: President and CEO Title: Vice President, Alliances,
Technology Group
Date: Date:
---------------------------- ---------------------------
Page 5
