Exhibit 10.17
ASSIGNMENT and ASSUMPTION AGREEMENT
This Assignment and Assumption Agreement ("Agreement") is entered into
effective as of the 28th day of February, 2003 (the "Effective Date"), by and
between Amkor Technology, Inc. ("Amkor"), Anam Semiconductor, Inc. ("Anam") and
Texas Instruments Incorporated ("TI").
WHEREAS, Amkor, Anam and TI entered into a Second Amended and Restated
Manufacturing and Purchase Agreement dated December 31, 2001 (attached hereto as
Exhibit A) (the "MPA"); and
WHEREAS, Amkor, Anam and TI entered into a Phase 3 Technical Assistance
Agreement dated July 1, 2000 (attached hereto as Exhibit B) (the "TAA"); and
WHEREAS, Amkor wishes to assign its rights and delegate its duties and
obligations under the MPA and the TAA to Anam, and Anam wishes to obtain such
rights and assume such duties and obligations under the MPA and the TAA; and
NOW THEREFORE, for good and valuable consideration, and intending to be
legally bound hereby, the parties agree as follows:
1. Assignment. By this Agreement, and except with respect to the
duties, obligations and liabilities of Amkor created by,
acknowledged, or arising out of this Agreement, Amkor hereby: (i)
assigns to Anam all right, title and interest in, to and under the
MPA and the TAA; and (ii) delegates to Anam all duties and
obligations of performance under the MPA and the TAA; and (iii)
fully releases and discharges TI from any and all duties,
obligations and liabilities that TI may have to Amkor under the MPA,
the TAA, or any transaction relating thereto from the Effective
Date. Notwithstanding the foregoing, nothing herein shall relieve TI
of its obligation to pay any undisputed outstanding trade payables
("Amounts") invoiced to TI and due to Amkor incurred by TI in the
ordinary course of business under the MPA as of the Effective Date,
which Amounts TI shall pay to Amkor in accordance with the terms of
the MPA.
2. Assumption. Anam hereby acknowledges and accepts such assignment,
and hereby assumes and agrees to fully perform all of Amkor's
duties, obligations and liabilities under the MPA and TAA. Anam
shall defend, indemnify and hold Amkor harmless from and against any
and all claims arising out of Anam's performance or failure to
perform, satisfy or discharge Amkor's duties, obligations and
liabilities under the MPA and/or the TAA, as assumed by Anam
hereunder.
3. Consent. Subject to completion by Anam and Amkor of the contemplated
transaction whereby Amkor will sell, assign, and otherwise transfer
to Anam, and/or its wholly-owned U.S. subsidiary, Amkor's assets
related to the
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provision of foundry marketing services, and except with respect to
the duties, obligations and liabilities of Amkor created by,
acknowledged, or arising out of this Agreement, TI hereby: (i)
acknowledges and consents to the assignment of the MPA and the TAA
as set forth above; and (ii) agrees to look solely to Anam for
performance and satisfaction of all duties, obligations and
liabilities under the MPA and the TAA from the Effective Date; and
(iii) fully releases and discharges Amkor from any and all such
duties, obligations and liabilities under the MPA and the TAA from
the Effective Date.
4. Confidentiality. Notwithstanding anything else in this Agreement to
the contrary, Amkor hereby expressly acknowledges and agrees that
its confidentiality and indemnification duties, obligations and
liabilities as set forth in Article 13 of the MPA shall continue
(including without limitation those confidentiality and
indemnification duties, obligations and liabilities under Articles
10 and 14.04 of the TAA and under Article 10 of the Phase 2
Technology Assistance Agreement dated January 1, 1998).
5. Waiver. The failure on the part of any party to exercise or enforce
any rights conferred on it hereunder shall not be deemed to
constitute a waiver of any rights nor operate as a bar to the
exercise or enforcement of any rights at any time or at times
hereafter.
6. Notices. All notices, orders and other communications pursuant to
this Agreement shall be served on each party in writing via
facsimile transmission (confirmed by registered letter), registered
letter, telex or prepaid cable to the following persons at the
following addresses and fax numbers:
if to TI:
Mr. Xxxxx Xxxxxxx
00000 XX Xxxxxxxxx, X/X 000
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
with a copy to:
General Counsel
0000 Xxxxxxxxx Xxx X/X 0000
Xxxxxx, Xxxxx 00000
Fax: 000-000-0000
if to Amkor:
Xx. Xxxx X. Xxxxxx
0000 Xxxxx Xxxxx Xxxx
Xxxxxxxx, XX 00000
Fax: 000-000-0000
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with a copy to:
Xxxxx X. Xxxxx, Esq.
General Counsel
Amkor Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, XX 00000
Fax: 000-000-0000
if to Anam:
Xxxxx Xx An
DaeGeun Xxxx
Xxxx Semiconductor, Inc.
000-00 Xxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000, Xxxxx
Fax: 000 00 0 0000-0000
XxXxx (Xxxxxxx) Xxxxx
Xxxx Semiconductor, Inc.
000-00 Xxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000, Xxxxx
Fax: 000 00 0 0000-0000
7. No Publicity. No party, without the prior written consent of the
other, shall either issue or cause the issuance of a press release
or public announcement or disclose to any third party the contents
of this Agreement or the transactions contemplated hereby.
8. Severability. In the event that any of the provisions of this
Agreement, or portions thereof, or documents referenced herein are
held to be unenforceable or invalid by any court of competent
jurisdiction, the validity and enforceability of the remaining
provisions, or portions thereof, shall not be affected thereby.
9. Further Actions. The parties agree to execute and deliver to each
other all additional instruments, to provide all information, and to
do all further acts and things as may be reasonably necessary or as
may be reasonably requested by any party hereto, to accomplish the
purposes contemplated hereby; provided that compliance with this
section does not cause undue or unreasonable burden or expense to
the complying party.
10. Governing Law. This Agreement shall be governed by, construed and
enforced in accordance with the laws of the state of Texas, U.S.A.,
as applicable to contracts made and fully performed in Texas. The
parties hereby irrevocably consent to the jurisdiction of the courts
of the state of Texas and the Federal courts of the U.S.A. located
in the state of Texas.
11. Counterparts. This Agreement may be executed in one or more
counterparts, in English, each of which shall be enforceable by or
against the parties executing such counterparts, and all of which
together shall constitute one instrument.
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12. No Other Changes. Except as modified hereby, the MPA, and the TAA
shall remain in full force and effect.
13. Entire Agreement. This Agreement contains the parties' entire,
integrated agreement relating to the subject matter hereof, and
supersedes all prior oral and written understanding and agreements
relating thereto, and may not be modified, discharged or terminated
except by the written consent of the parties.
14. No Conflicts. Anam and Amkor hereby represent and warrant that the
execution and performance of this Agreement is not in conflict with,
does not constitute a default under or violate (i) any terms,
conditions or provisions of any of their respective organization or
governance documents, (ii) any of the terms, conditions or
provisions of any document, agreement or other instrument to which
it is a party or by which it is bound, (iii) any applicable law or
regulation, or (iv) any applicable judgment, writ, injunction,
decree order or ruling of any court or governmental authority. TI
hereby represents and warrants that the execution and performance of
this Agreement is not in conflict with, does not constitute a
default under or violate (i) any terms, conditions or provisions of
any of the organization or governance documents of TI, (ii) any of
the terms, conditions or provisions of any document, agreement or
other instrument to which TI is a party or by which it is bound,
(iii) any law or regulation binding upon TI, or (iv) any judgment,
writ, injunction, decree order or ruling of any court or
governmental authority binding on TI.
WHEREBY, the parties have caused this Agreement to be executed by their
duly authorized representatives effective as of the date first set forth above.
AMKOR TECHNOLOGY, INC.
/s/ Xxxx X. Xxxxxx
--------------------------------------
By: Xxxx X. Xxxxxx
Title: Executive Vice President
Corporate Development
TEXAS INSTRUMENTS INCORPORATED
/s/ Xxxxx Xxxxxxx
--------------------------------------
By: Xxxxx Xxxxxxx
Title: Senior Vice President
Worldwide MAKE Operations Manager
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ANAM SEMICONCUCTOR, INC.
/s/ Xxxxx Xx An
--------------------------------------
By: Xxxxx Xx An
Title: Executive Vice President
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EXHIBIT A
Second Amended and Restated Manufacturing and Purchase Agreement
Dated December 31, 2001
(see attached)
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EXHIBIT B
Phase 3 Technical Assistance Agreement
Dated July 1, 2000
(see attached)
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