EXHIBIT 10.50(m)
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AMD SAXONIA
RESEARCH, DESIGN AND DEVELOPMENT AGREEMENT
Dated 11 March 1997
between
AMD SAXONY MANUFACTURING GMBH,
and
AMD SAXONY HOLDING GMBH
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AMD SAXONIA
RESEARCH, DESIGN AND DEVELOPMENT AGREEMENT
THIS AMD SAXONIA RESEARCH, DESIGN AND DEVELOPMENT AGREEMENT (this "Agreement")
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dated as of 11 March, 1997 is entered into between AMD SAXONY MANUFACTURING
GMBH, a limited liability company organized and existing under the laws of
Germany and registered in the Commercial Register of the Dresden County Court,
HRB 13186 ("AMD Saxonia"), and AMD SAXONY HOLDING GMBH, a limited liability
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company organized and existing under the laws of Germany and registered in the
Commercial Register of the Dresden County Court, HRB 13931 ("AMD Holding").
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WHEREAS, AMD Saxonia is a wholly-owned Subsidiary of AMD Holding which in turn
is a wholly-owned Subsidiary of Advanced Micro Devices, Inc., a corporation
organized and existing under the laws of the State of Delaware, United States of
America ("AMD Inc."), and
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WHEREAS, AMD Saxonia, AMD Holding and AMD Inc. (together, the "AMD Companies")
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are currently involved in the initial planning stages of a project pursuant to
which AMD Saxonia will construct, own and operate inter alia a manufacturing
plant to manufacture Wafers using high-volume semiconductor Wafer fabrication
processes and an adjoining research and development center (the "Design Center")
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to be located in Dresden, Germany, and
WHEREAS, it is expected that the Design Center will employ qualified
individuals, mostly hired from local colleges, universities and technical
institutes and having advanced educational degrees, to conduct bona fide
research on advanced semiconductor products and on the redesign and development
of variants of existing semiconductor products, and
WHEREAS, this research is expected to focus on system architecture of
microprocessors, circuit designs and improvements of computation and compression
algorithms, and the products involved are expected to cover a range of advanced
logic devices such as microprocessors and circuits for telecommunications and
multimedia applications, and
WHEREAS, AMD Inc. is engaged in research, development, design, manufacturing and
marketing of semiconductor products, and
WHEREAS, concurrently herewith AMD Inc. and AMD Holding are entering into an AMD
Holding Research, Design and Development Agreement (as amended, supplemented or
otherwise modified from time to time, the "AMD Holding Research Agreement"),
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pursuant to which AMD Inc. will obtain, and AMD Holding will provide, assistance
in the area of research, design and development of semiconductor products, and
WHEREAS, in order to enable it to fulfill its obligations under the AMD Holding
Research Agreement, AMD Holding wishes to obtain assistance in the area of
research, design and development of semiconductor products from AMD Saxonia, and
AMD Saxonia is willing to
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provide such assistance, in each case on the terms and subject to the conditions
of this Agreement, and
WHEREAS, concurrently herewith (i) AMD Saxonia and AMD Holding are entering into
that certain AMD Saxonia Wafer Purchase Agreement (as amended, supplemented or
otherwise modified from time to time, the "AMD Saxonia Wafer Purchase
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Agreement"), and (ii) AMD Saxonia, AMD Holding and AMD Inc. are entering into
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that certain License Agreement (as amended, supplemented or otherwise modified
from time to time, the "License Agreement"), and
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WHEREAS, capitalized terms not defined herein shall have the meaning assigned to
them in the AMD Saxonia Wafer Purchase Agreement.
NOW, THEREFORE, in consideration of the mutual covenants expressed herein, the
parties hereby agree as follows:
ARTICLE I
STATEMENT OF WORK
(a) On the terms and subject to the conditions provided herein, (i) AMD
Holding hereby retains AMD Saxonia to provide research, design and
development services ("Services") related to semiconductor products to
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or for the benefit of AMD Holding or, at its request, to or for the
benefit of AMD Inc., Fujitsu AMD Semiconductor Limited ("FASL") or
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Subsidiaries of AMD Inc. other than AMD Saxonia, and (ii) AMD Saxonia
hereby agrees to use its reasonable commercial efforts to provide the
Services. In furtherance of the foregoing, AMD Saxonia shall furnish
all personnel, facilities, labor, materials, tools, equipment and
supervision as may be necessary and commercially reasonable to provide
the Services, including without limitation to research, design and
develop custom circuits, schematics and layouts, and to perform such
other activities, as AMD Holding shall from time to time reasonably
request (the "Design Activity"); it being understood and agreed that,
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for all purposes of this Agreement, the Services and the Design
Activity shall be in all respects comparable and consistent with the
Services and the Design Activity under, and as defined in, the AMD
Holding Research Agreement.
(b) AMD Holding acknowledges that AMD Saxonia's obligation is to use
its reasonable commercial efforts to provide the Services and Design
Activities, and that AMD Saxonia therefore does not undertake and
cannot guarantee that the results of the Services and Design Activities
will achieve the goals set therefor or that such results will have any
commercial value. AMD Holding further acknowledges and agrees that AMD
Saxonia shall not be required at any time to take any steps hereunder
to provide the Services and/or Design Activities to the extent such
steps at such time could
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reasonably be expected to delay the "Completion Date" under, and as
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defined in, the AMD Saxonia Wafer Purchase Agreement.
(c) AMD Saxonia further agrees, during the term of this Agreement, (i)
only to perform Services and engage in Design Activities specifically
requested by AMD Holding which request may be made by AMD Inc., FASL or
one of AMD Inc.'s Subsidiaries acting pursuant to authorization from
AMD Holding hereunder and (ii) not to provide research, design and
development services for persons or entities other than AMD Inc., its
Subsidiaries or FASL, without the prior consent of AMD Holding.
(d) AMD Saxonia and AMD Holding agree that this Agreement is limited to
research, design and development of semiconductor products. Any
activities of AMD Saxonia relating to the production of semiconductors,
including the transfer of production tooling, shall not be deemed to be
Services or Design Activities hereunder and, to the extent covered
thereby, shall be subject to the AMD Saxonia Wafer Purchase Agreement.
In the event of any conflict or inconsistency between this Agreement
and the AMD Saxonia Wafer Purchase Agreement, the terms of the AMD
Saxonia Wafer Purchase Agreement shall prevail.
ARTICLE II
PAYMENTS
(a) AMD Holding agrees to pay AMD Saxonia for the Services and Design
Activities performed under this Agreement an amount equal to AMD
Saxonia's total cost of labor, materials, overhead and all other costs
incurred for and reasonably allocated by AMD Saxonia to such Services
and Design Activities in accordance with German generally accepted
accounting principles, plus (i) a surcharge of ten percent (10%) on
such costs and (ii) Value Added Tax ("Tax"), if applicable. Any net
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interest expense or other taxes incurred by AMD Saxonia are
specifically excluded as a reimbursable cost under this Agreement. Such
expenses shall be subject to the AMD Saxonia Wafer Purchase Agreement,
to the extent covered thereby. To the extent certain expenses are
incurred in support of both the Services and Design Activities, on the
one hand, and other activities of AMD Saxonia, on the other hand, a
reasonable allocation by AMD Saxonia of such expenses shall be made
between the Services and Design Activities, on the one hand, and such
other activities, on the other hand.
(b) Subject to Section (b) of Article I hereof, AMD Holding will
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authorize the commencement of Services when AMD Saxonia is able to
perform the Services contemplated under this Agreement, but in any
event no later than when the Design Center is completed to AMD
Holding's reasonable satisfaction. The parties may agree that the
Services and Design Activity may be phased in over a period of time
prior to the completion of the Design Center, but only those costs
specifically related to the
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Services and Design Activity and not to the completion of the Design
Center shall be reimbursable pursuant to Section (a) of this Article
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II.
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(c) AMD Saxonia shall within 30 days after the end of each of its
fiscal months, provide AMD Holding with an installment invoice in
respect of such fiscal month detailing the Services rendered and the
Design Activity undertaken and specifying costs with respect to such
Services and Design Activity, and the amount payable by AMD Holding
under this Article II with respect thereto. Some of these costs may be
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estimated, budgeted or accrued costs, but shall be subject to a
quarterly adjustment to reflect actual costs when finally determined.
(d) Under this Agreement, invoices shall be rendered and payments shall
be made in the lawful currency of the Federal Republic of Germany
("DM"). Invoices shall be paid in full within thirty (30) days of the
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receipt of such invoice. Payments under this Agreement from AMD Holding
to AMD Saxonia shall be made by wire transfer deposited into [*], or
such other account of AMD Saxonia specified by AMD Saxonia with the
prior written consent of Dresdner Bank AG as Agent for the Lenders
under the Loan Agreement (including any successor thereto in such
capacity, the "Agent") (a copy of which consent shall be delivered by
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AMD Saxonia to AMD Holding) with not less than 15 days written notice
to AMD Holding. All amounts under this Agreement not paid when due from
AMD Holding shall bear interest at the rate of 7.0% per annum from the
date due until paid, calculated on the basis of actual days and months
elapsed. Accrued interest hereunder shall be due and payable at the end
of each calendar month.
(e) The obligations of AMD Holding hereunder, including, without
limitation, the obligation to pay for any Services or Design Activity
actually performed by AMD Saxonia, are intended to be absolute and
unconditional. The parties hereto hereby expressly acknowledge, agree,
and understand that the payment by AMD Holding of all amounts payable
by it hereunder shall in no way be prevented, delayed, or otherwise
affected as a result of any dispute between the parties (or between any
of their Affiliates) nor by any breach of this Agreement or any other
agreement entered into in connection herewith and/or any adverse change
in the financial or economic condition of AMD Saxonia or any Affiliate
thereof, including situations or conditions which would render any or
all of AMD Saxonia or any Affiliate thereof in liquidation, bankruptcy,
or any kind of insolvency. All obligations of AMD Holding under or in
connection with this Agreement shall be paid and performed in all
events in the manner and at the times herein provided, irrespective of
and without prejudice to, any rights or remedies that are available to
the other parties hereto under any agreements or any applicable laws.
The foregoing notwithstanding, AMD Holding shall be entitled to setoff,
and to raise rights of retention, in respect of payment claims due from
it hereunder only to the extent its counterclaim is undisputed by AMD
Saxonia or has been the subject of a final, binding arbitral or court
decision.
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* CONFIDENTIAL INFORMATION OMITTED AND FILED SEPARATELY WITH THE SECURITIES AND
EXCHANGE COMMISSION.
(f) AMD Saxonia shall keep and maintain, in accordance with German
generally accepted accounting principles, books of account and other
records with respect to the costs and other amounts charged by AMD
Saxonia to AMD Holding under this Agreement.
(g) AMD Holding shall, upon reasonable written notice to AMD Saxonia,
have a right to perform special audits of AMD Saxonia by either outside
auditors or one or more of the internal auditors of the AMD Companies,
at AMD Holding's own cost. The scope of the audit shall not be limited
in any manner.
(h) AMD Saxonia and AMD Holding agree that the purpose of this
Agreement and the related Services and Design Activity is the creation
of intellectual property. However, from time to time, such intellectual
property may be transferred in the form of tangible personal property.
The transfer of any tangible personal property is solely for the
purpose of conveying or exchanging intellectual property or "Ideas".
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Examples of such tangible personal property may include, but are not
limited to, magnetic tapes, pattern generation tapes, test tapes,
schematic diagrams, prototypes and prototype tooling. Both parties
agree that, in the aggregate, the fair market value of such tangible
property transferred to AMD Holding shall not exceed U.S. $5,000
dollars per year. The provisions of this paragraph are intended solely
for valuation purposes under the various state sales and use tax rules
in the U.S.A. and do not in any way alter the compensation provisions
of this Article II, which is the sole and controlling provision for the
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compensation to AMD Saxonia for the Services and Design Activities
under this Agreement.
ARTICLE III
WORK PERFORMED OUTSIDE GERMANY
(a) The parties recognize that to implement the intent and purpose of
this Agreement, and to bring the research, design and development
efforts of AMD Saxonia to the stage at which production of
semiconductor products is possible, essential work related to the
Design Activity which AMD Saxonia is unable to perform may have to be
performed by AMD Inc. on behalf of AMD Holding at AMD Inc. facilities
outside Germany.
(b) It is expressly agreed that all cost for work performed by or on
behalf of AMD Holding, at any facility other than the Design Center,
will be absorbed by AMD Holding and will not be charged back to AMD
Saxonia.
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ARTICLE IV
CHANGES IN SPECIFICATIONS
(a) AMD Holding may from time to time request changes in the
specifications of semiconductor products undergoing research, design
and development during the course of the Design Activity, which request
may be made by AMD Inc., FASL or one of AMD Inc.'s Subsidiaries acting
pursuant to authorization from AMD Holding. AMD Holding acknowledges
that such changes may result in additional delays as well as alteration
of designs, drawings, materials, and other items used in the
development process and consequently may result in changed costs or
delay, that AMD Saxonia shall include such changed costs in its costs
reimbursed or to be reimbursed pursuant to Section (a) of Article II,
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and that AMD Saxonia shall have no liability or obligation as a result
of any such delays.
(b) AMD Saxonia will use its reasonable commercial efforts to inform
AMD Holding of the changes in cost in sufficient time to authorize or
approve such changed costs before they are incurred provided that the
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failure by AMD Saxonia to do so will not excuse AMD Holding of the
obligation to compensate AMD Saxonia in respect of any such changes in
cost.
ARTICLE V
EFFECTIVE DATE: TERM AND TERMINATION
(a) This Agreement shall become effective on the date hereof and shall
terminate on the earliest of (i) the Loan Agreement Termination Date
and (ii) any date upon which the AMD Saxonia Wafer Purchase Agreement
terminates in accordance with its terms.
(b) The provisions of Articles V(c), XV, XVII, XVIII, XIX, and XX of
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this Agreement shall survive any termination of this Agreement.
(c) Within 30 days after termination of this Agreement, AMD Saxonia
shall send a final invoice to AMD Holding for any uninvoiced Services
or Design Activity. Such invoice shall be paid in accordance with the
payment provisions set forth in Section (d) of Article II hereof.
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ARTICLE VI
REPRESENTATIONS AND WARRANTIES
AMD Holding represents and warrants to AMD Saxonia as follows:
(a) Organization; Corporate Power. AMD Holding is a Gesellschaft mit
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beschrankter Haftung duly organized and existing under the laws of the
Federal Republic of Germany and registered in Xxxxxxx, Xxxxx
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ny; AMD Holding is duly qualified or licensed and (where the term has a
technical meaning) is in good standing as a foreign corporation
authorized to do business in each jurisdiction where, because of the
nature of its activities or properties, such qualification or licensing
is required, except for such jurisdictions where the failure to be so
qualified or licensed will not materially adversely affect its
financial condition, business, operations, or prospects; and AMD
Holding has all requisite corporate power and authority (i) to own,
operate, and lease its assets and properties and to carry on the
business in which it is engaged and in which it currently proposes to
engage; and (ii) to execute, deliver, and perform its obligations under
this Agreement.
(b) Corporate Authority; No Conflict. The execution, delivery, and
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performance by AMD Holding of this Agreement have been duly authorized
by all necessary corporate action (including any necessary shareholder
action) on the part of AMD Holding, and do not and will not (i) violate
any provision of any law, rule, regulation, order, writ, judgment,
injunction, decree, determination, or award presently in effect binding
on AMD Holding (which violation, in the case of performance only,
individually or in the aggregate could reasonably be expected to have a
material adverse effect on the financial condition, business,
operations or prospects of AMD Holding) or violate the charter of AMD
Holding, or (ii) result in a breach of, result in a mandatory
prepayment or acceleration of indebtedness evidenced or secured by, or
constitute a default under, any indenture or loan or credit agreement,
or any other agreement or instrument, to which AMD Holding is a party
or by which AMD Holding or its properties are bound or affected, or
(iii) result in or require (in either case except as contemplated by
the Operative Documents), the creation or imposition of any encumbrance
of any nature upon or with respect to any of the properties now owned
or hereafter acquired by AMD Holding, and AMD Holding is not in default
under or in violation of its charter, or any such law, rule,
regulation, order, writ, judgment, injunction, decree, determination,
award, indenture, agreement, or instrument, which default or violation,
individually or in the aggregate, could reasonably be expected to have
a material adverse effect on the financial condition, business,
operations, or prospects of AMD Holding.
(c) Valid and Binding Obligations. This Agreement constitutes the
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legal, valid, and binding obligation of AMD Holding, enforceable
against AMD Holding in accordance with its respective terms, subject,
however, to applicable bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditors' rights generally and
except as the enforceability thereof may be limited by general
principles of equity (regardless of whether considered in a proceeding
in equity or law).
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ARTICLE VII
WARRANTY AND DISCLAIMER
(a) AMD Saxonia covenants and warrants (i) that it will perform all
Services and Design Activity under this Agreement substantially in
accordance with the standards and practices of care, skill and
diligence customarily observed by similar firms under similar
circumstances at the time they are rendered, and (ii) that all Services
and Design Activities shall be free of material defects in workmanship.
(b) THE WARRANTY CONTAINED IN THIS ARTICLE VII IS THE SOLE AND
EXCLUSIVE WARRANTY AS TO THE SERVICES AND DESIGN ACTIVITIES RENDERED
AND PROVIDED HEREUNDER, AND IS EXPRESSLY IN LIEU OF ANY EXPRESS OR
IMPLIED WARRANTIES, IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION,
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AMD
SAXONIA ASSUMES NO LIABILITY IN TORT OR STRICT LIABILITY, NOR SHALL AMD
SAXONIA BE LIABLE TO AMD HOLDING OR ANY SUBSIDIARY OR AFFILIATE THEREOF
FOR LOSS OF USE OF SERVICES OR DESIGN ACTIVITY OR ANY OTHER INCIDENTAL,
SPECIAL, OR CONSEQUENTIAL DAMAGES INCURRED BY AMD HOLDING OR ANY
SUBSIDIARY OR AFFILIATE THEREOF. IN NO EVENT SHALL THE LIABILITY OF AMD
SAXONIA ARISING IN CONNECTION WITH ANY SERVICES OR DESIGN ACTIVITY
PROVIDED HEREUNDER EXCEED THE ACTUAL AMOUNT PAID BY AMD HOLDING TO AMD
SAXONIA FOR SERVICES OR DESIGN ACTIVITY INVOLVED IN SUCH CLAIM.
ARTICLE VIII
SEVERABILITY
If any term or provision of this Agreement or the application of this Agreement
to any person, entity or circumstance is found to be invalid, illegal or
unenforceable in any respect, the validity, legality and enforceability of the
remainder of this Agreement shall not be affected, but shall be valid and
enforceable as if the invalid term, condition or provision were not a part of
this Agreement.
ARTICLE IX
HEADINGS
The headings contained in this Agreement are for convenience of reference only
and shall not be deemed to be a part of this Agreement or to affect the meaning
or interpretation of this Agreement.
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ARTICLE X
FORCE MAJEURE
(a) A party to this Agreement shall not be liable for the consequences
of any failure to perform, or default in performing, any of its
obligations, other than its payment obligations, under this Agreement,
if that party can show that such failure is caused by Force Majeure (as
defined below).
(b) Where there has been any such failure, the said failure shall not
be considered non-compliance with any term or condition of this
Agreement, and all the obligations and times which because of such
failure could not be fulfilled shall be deemed to have been suspended
while the failure continues. In addition, the party for whom such
obligations and/or times have been suspended shall be entitled to take
reasonable steps during the pendency of the relevant Force Majeure to
limit its losses resulting from such Force Majeure, and following the
termination of such Force Majeure such obligations and/or times shall
continue to be suspended for such further reasonable period as is
necessary for such party to restore its capacity to perform such
obligations and/or meet such times.
(c) For purposes of this Article X, "Force Majeure" means an event
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which is not within the reasonable control of the party seeking to rely
on the existence of Force Majeure, where the adverse effect of such
event on such party's compliance with its obligations under this
Agreement is not preventable by such party using all reasonable care
and diligence. Such events may include, without limitation, the
following: acts of war (whether declared or undeclared), invasion,
armed conflict, acts of one or more enemy of the United States of
America, Germany or any other country or jurisdiction; blockade or
embargo, revolution, riot, bombs, insurrection, or other civil
disturbance, sabotage, terrorism, or the threat of any of the
foregoing, nuclear explosion, radioactive or chemical contamination or
ionizing radiation, strikes, lockouts, industrial action or labor
disputes, any effect of the natural elements including, without
limitation, lightning, fire, earthquake, flood, strike and other
unusual or extreme adverse weather, or environmental conditions or
actions of the elements, epidemic or plague, loss of or damage to the
Design Center and/or machinery, equipment or materials at, for or in
transit to the Design Center, acts of God and any events or
circumstances analogous to any of the above.
ARTICLE XI
RELATIONSHIP OF PARTIES
AMD Holding and AMD Saxonia shall at all times be independent contractors with
respect to each other. Nothing in this Agreement shall constitute either party
hereto as the partner, joint venturer, employee or agent of the other such party
and neither AMD Holding nor AMD Saxonia shall act or omit to act in such a way
as to suggest the contrary to any third party.
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ARTICLE XII
ASSIGNMENT
This Agreement shall be binding upon and inure to the benefit of each party
hereto and their respective successors and assigns; provided, however, that this
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Agreement contemplates personal services of AMD Saxonia and accordingly neither
party hereto shall have the right to transfer or assign its interest in this
Agreement or, in the case of AMD Saxonia, delegate any obligation hereunder,
without the prior written consent of both the other party hereto and, prior to
the Loan Agreement Termination Date, of the Agent, and provided further that AMD
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Saxonia may assign this Agreement to the Agent as security for obligations of
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AMD Saxonia under the Loan Agreement and the Agent may further assign this
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Agreement to the extent permitted in the proper exercise of the Agent's
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enforcement rights in respect of such security.
ARTICLE XIII
WAIVERS
No delay or omission in exercise of any right or remedy of either party or any
default by the other, and no custom or practice of the parties at variance with
the terms of this Agreement, shall impair any right or remedy otherwise
available nor shall it be construed as a waiver of any right or remedy. Any
waiver by either party of any default must be in writing and shall not be a
waiver of any other default concerning the same or any other provision. AMD
Saxonia shall have no right to waive any of its rights or remedies under this
Agreement without the prior written consent of the Agent. AMD Holding shall have
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no right to waive any of its rights or remedies under this Agreement without the
prior written consent of AMD Inc.
ARTICLE XIV
RIGHTS CUMULATIVE
The rights, remedies and powers of each of the parties contained in this
Agreement are cumulative and not exclusive of any rights, remedies or powers
provided to the parties by applicable law. No single or partial exercise by any
of the parties hereto of any right, remedy or power under this Agreement shall
preclude any other or further exercise thereof or the exercise of any other
right, power or remedy.
ARTICLE XV
NOTICES
All notices and other communications required or permitted to be given to or
made upon either party hereto shall be in writing and shall be personally
delivered or sent by registered or certified mail, postage pre-paid, return
receipt requested, or by pre-paid telex, TWX or
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telegram, or by pre-paid courier service, or by telecopier, to the respective
parties hereto at their respective addresses (or to their respective telex, TWX
or telecopier numbers) indicated below, or such other addresses or numbers
specified in a notice sent or delivered in accordance with the provisions of
this Article XV. Any such notice or communication shall be deemed to be given
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for purposes of this Agreement on the day that such writing or communication is
delivered or, in the case only of a telex, telecopier, TWX or telegram, sent to
the intended recipient thereof, with confirmation of receipt, in accordance with
the provision of this Article XV, or
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If to AMD Holding:
AMD Saxony Holding GmbH
Xxxxxxxxxxxxx. 00 X/X
00000 Xxxxxxx
Attention: Geschaftsfuhrer
Facsimile: 49-351-8412-150
with a copy to:
Advanced Micro Devices, Inc.
Xxx XXX Xxxxx
Xxxxxxxxx, Xxxxxxxxxx 00000
Attention: General Counsel
Facsimile: (000) 000-0000
If to AMD Saxonia:
AMD Saxony Manufacturing GmbH
Xxxxxxxxxxxxx. 00 X/X
00000 Xxxxxxx
Attention: Geschaftsfuhrer
Facsimile: 49-351-8412-150
with a copy to:
Dresdner Bank AG, as Agent
Xx. Xxxx-Xxxx 00
00000 Xxxxxxx
Attention: Direktion
Facsimile: 00-000-000-0000
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ARTICLE XVI
NO EFFECT ON OTHER AGREEMENTS
No provision of this Agreement shall be construed so as to negate, modify or
affect in any way the provisions of any other agreement between AMD Holding and
AMD Saxonia except as specifically provided in any such other agreement.
ARTICLE XVII
GOVERNING LAW
THIS AGREEMENT SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF CALIFORNIA, WITHOUT REGARD TO CONFLICTS OF
LAWS PRINCIPLES.
ARTICLE XVIII
ARBITRATION OF DISPUTES
Arbitration under this Article XVIII shall be the exclusive means for a party to
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seek resolution of any dispute arising out of, relating to or connected with
this Agreement, except that either party may bring an action before a competent
court for the issuance of provisional or protective measures.
(a) The parties hereto agree to submit any dispute, controversy or
claim ("Dispute") arising out of, relating to or in any way connected
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with this Agreement to final and binding arbitration in the County of
Santa Clara, California, under the Commercial Arbitration Rules and
Supplementary Procedures for International Commercial Arbitration of
the American Arbitration Association ("AAA") then in force except as
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modified in accordance with the provisions of this Article XVIII.
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(b) The arbitral tribunal shall be composed of three arbitrators, one
appointed by each party, and the two arbitrators so appointed shall,
within 15 days appoint a third arbitrator who shall be chosen from a
country other than those of which the parties are nationals, who shall
be fluent in English, and who shall act as Chairman of the tribunal.
(c) In arriving at decisions, the arbitrators shall apply the terms and
conditions of this Agreement in accordance with the laws of the State
of California.
(d) The award shall be deemed a U.S. award for purposes of the
Convention on the Recognition and Enforcement of Foreign Arbitral
Awards of 1958 (the "New York Convention"). The English language shall
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be used in the arbitral proceedings and all
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exhibits and other evidence in a language other than English shall be
accompanied by English translations when submitted into evidence before
the arbitral tribunal.
(e) The arbitrators are empowered to render the following awards in
accordance with any provision of this Agreement or any related
agreement: (i) enjoining a party from performing any act prohibited, or
compelling a party to perform any act required, by the terms of this
Agreement or any related agreement and any order entered into pursuant
to this Agreement and (ii) ordering such other legal or equitable
relief, including any provisional legal or equitable relief, or
specifying such procedures as the arbitrator deems appropriate, to
resolve any Dispute submitted for arbitration. The parties shall be
entitled to discover all documents and other information reasonably
necessary for a full understanding of any legitimate issue raised in
the arbitration. They may use all methods of discovery customary under
U.S. federal law, including but not limited to depositions, requests
for admission, and requests for production of documents. The time
periods for compliance shall be set by the arbitrators, who may also
set limits on the scope of such discovery. The arbitrators shall not be
empowered to award consequential or punitive damages.
(f) Either party may file an application in any proper court described
in Article XIX hereof for a provisional remedy in connection with an
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arbitrable controversy hereunder, but only upon the ground that the
award to which the applicant may be entitled may be rendered
ineffectual without provisional relief.
(g) The arbitrators shall issue to both parties a written explanation
in English of the reasons for the award and a full statement of the
facts as found and the rules of law applied in reaching the decision.
(h) Any monetary award shall be made and shall be payable in DM free of
any tax or any deduction.
(i) The award of the arbitral tribunal will be the sole and exclusive
remedy between the parties regarding any and all claims and
counterclaims with respect to the subject matter of the arbitrated
dispute. An award rendered in connection with an arbitration pursuant
to this Article XVIII shall be final and binding upon the parties, and
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any judgment upon which an award may be entered and enforced in any
court of competent jurisdiction.
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ARTICLE XIX
CONSENT TO JURISDICTION AND FORUM:
AMD HOLDING AND AMD SAXONIA APPOINTMENT OF
AGENT FOR SERVICE OF PROCESS
(a) Subject to Article XVIII, all judicial proceedings brought against
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either party hereto with respect to this Agreement may be brought in
the United States District Court for the Northern District of
California or in any branch of the Superior Court of the State of
California sitting in the City of San Francisco, and by execution and
delivery of this Agreement, each such party accepts for itself and in
connection with its properties, generally and unconditionally, the
nonexclusive jurisdiction of such courts. In addition, each such party
hereby irrevocably and unconditionally waives, to the fullest extent
permitted by law, any objection which it may now or hereafter have to
the laying of venue of any such proceedings, and hereby further
irrevocably and unconditionally waives and agrees to the fullest extent
permitted by law not to plead or claim that any such proceeding brought
in any such court has been brought in an inconvenient forum.
(b) AMD Saxonia hereby irrevocably appoints CT Corporation Services as
its agent to receive on behalf of AMD Saxonia and its property service
of copies of the summons and complaint and any other process which may
be served in any proceeding in any state or federal court of competent
jurisdiction in the State of California.
(c) AMD Holding hereby irrevocably appoints CT Corporation Services as
its agent to receive on behalf of AMD Holding and its property service
of copies of the summons and complaint and any other process which may
be served in any proceeding in any state or federal court of competent
jurisdiction in the State of California.
ARTICLE XX
JUDGMENT CURRENCY
The parties hereto agree that, without prejudice to Articles XVII, XVIII and XIX
------------- ----- ---
above:
(a) if, for purposes of obtaining hereunder an arbitral award or
judgment of any court, it is necessary to convert a sum due hereunder
in DM into another currency, the rate of exchange used shall be that at
which in accordance with normal banking procedures the prevailing party
could purchase DM with such other currency on the Business Day
preceding that on which the final award or judgment (as applicable) is
given; and
(b) the obligation of each of the parties hereto in respect of any sum
due hereunder from it (the "Payor") to the other party (the
-----
"Recipient") shall, notwithstanding any judgment in a currency other
---------
than DM, be discharged only to the extent that on the
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Business Day following receipt by the Recipient of any sum adjudged to
be so due in such other currency, the Recipient may, in accordance with
normal banking procedures purchase DM with such other currency; in the
event that the DM so purchased is less than the sum originally due to
the Recipient, the Payor, as a separate obligation and notwithstanding
any such judgment or award hereby agrees to indemnify and hold harmless
the Recipient against such loss, and if the DM so purchased exceeds the
sum originally due to the Recipient, the Recipient shall remit to the
Payor the excess.
ARTICLE XXI
LANGUAGE
This Agreement is in the English language, which language shall be controlling
in all respects.
ARTICLE XXII
ENTIRE AGREEMENT
This Agreement, the AMD Holding Research Agreement, the AMD Saxonia Wafer
Purchase Agreement, the Confidentiality and Intellectual Property Agreement, the
License Agreement and that certain Amended and Restated Management Services
Agreement, dated as of even date hereof, embody the entire agreement and
understanding between the parties with respect to the subject matter hereto. AMD
Holding acknowledges and agrees that it has not relied upon any representation
or warranty of the AMD Saxonia in entering into this Agreement and that this
Agreement shall remain in force notwithstanding the breach by AMD Saxonia of any
such representation or warranty, and AMD Saxonia acknowledges and agrees that it
has not relied upon any representation or warranty of AMD Holding in entering
into this Agreement except as expressly set forth herein.
ARTICLE XXIII
COUNTERPARTS
This Agreement may be executed in one or more counterparts and by different
parties hereto in separate counterparts, each of which when so executed and
delivered shall be deemed an original but all such counterparts together shall
constitute but one and the same instrument; signature pages may be detached from
multiple counterparts and attached to a single counterpart so that all signature
pages are physically attached to the same document.
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ARTICLE XXIV
AMENDMENTS
No modifications or amendments to this Agreement shall be binding unless in
writing and executed by each of the parties hereto and AMD Inc. and, prior to
the Loan Agreement Termination Date, without the prior written consent of the
Agent.
-----
ARTICLE XXV
EUROPEAN MONETARY UNION
The European Economic and Monetary Union anticipates the introduction of a
single currency and the substitution of the national currencies of Member States
participating in the Monetary Union. On the date on which the Deutsche Xxxx is
replaced by the single currency, conversion into such currency shall take
effect. The denomination of the original currency shall be retained for so long
as this is legally permissible. Conversions shall be based on the officially
fixed rate of conversion. Neither the introduction of the single currency nor
the substitution of the national currencies of the Member States participating
in European Monetary Union nor the fixing of the official rate of conversion nor
any economic consequences that arise from any of the aforementioned events or in
connection with European Monetary Union shall give rise to any right to
terminate prematurely, contest, cancel, rescind, modify, or renegotiate this
Agreement or any of its provisions or to raise any other objections and/or
exceptions or to assert any claims for compensation. This Agreement shall
continue in full force and effect in accordance with its terms.
IN WITNESS WHEREOF, the parties have executed this Agreement in duplicate
originals as of the date first written above by causing their duly authorized
representatives to sign below.
AMD SAXONY MANUFACTURING GMBH AMD SAXONY HOLDING GMBH
/s/ Xxxx X. Xxxxxxx /s/ Xxxxxx X. Xxxxxxx
--------------------------------- ---------------------------------
Geschaftsfuhrer Geschaftsfuhrer
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