EXHIBIT 10.52
JOINT DEVELOPMENT AGREEMENT
Advanced Micro Devices, Inc, a Delaware corporation ("AMD"), and United
Microelectronics Corporation, a Taiwan corporation ("UMC") enter this Joint
Development Agreement ("JDA") as of this 31st day of January 2002. This JDA,
together with its exhibits, includes all essential terms for the program for
joint technology development (the "AU JDP") between AMD and UMC.
1. DEVELOPMENT OF CMOS TECHNOLOGY PLATFORMS
UMC will develop competitive CMOS technology platforms to serve broad
foundry business needs on a time table competitive with the ITRS roadmap.
1.1 UMC's target roadmap and timetable for general purpose CMOS technology
platforms at the ***** and ***** technology nodes (the "UMC Advanced CMOS
Platforms") is attached as Exhibit 1.1.
1.2 Through regular working group meetings, UMC and AMD will exchange ideas
on the appropriate targets for specifications, mainstream application/voltages,
timing, and performance, with the understanding that UMC will have
responsibility to decide upon these matters for the UMC Advanced CMOS Platforms.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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2. DEVELOPMENT OF HIGH PERFORMANCE CAPABILITIES & MODULES
AMD will develop high performance capability, suitable for delivering
performance levels to its MPU designs, and will include concentration on
appropriately based transistor designs (whether SOI, strained silicon or other).
2.1 AMD's target roadmap and timetable for high performance transistor
capability and the associated transistor specific modules for the ***** and
***** nodes is attached as Exhibit 2.1.
2.2 Through working group meetings, AMD and UMC will exchange ideas on
appropriate technology, manufacturing, and performance considerations involved
in high performance capability and transistor-specific modules, with the
understanding that AMD will have responsibility to decide upon these matters for
its products and needs.
3. WORKING GROUPS AND TEAM MECHANICS
AMD and UMC teams will be responsible for the cooperation between the
parties and the joint development work in the AU JDP.
3.1 The team members initially assigned to the specific JDP Working Groups,
the leaders of these teams ("Management Leaders"), and the Executive Sponsors
for the AU JDP are shown in Exhibit 3.1. Either party may, by written notice to
the other, update their list of team members with other qualified engineers and
executives as may be reasonable.
3.2 The JDP Working Groups will be responsible for the day to day
development efforts and coordination in the AU JDP. Each JDP Working Group will
convene--in person, or by telephone or video conference--weekly (except when the
Working Group deems it appropriate, the weekly sessions may be reset to be
biweekly), with the objective that the teams communicate routinely and regularly
on all relevant aspects of the AU JDP joint development work.
3.2.1 The JDP Working Groups will establish, and modify or update as
they deem appropriate, procedures and practices for their meetings and
coordination.
3.2.2 The JDP Working Groups will establish in writing agreed upon
projects, specific working plans, including schedules, milestones and
manpower/resource needs, for the AU JDP. Any matters concerning the working
plans, milestones, schedules or manpower/resource needs that cannot be
resolved in the JDP Working Group level will be escalated to the Management
Leaders who will be responsible to cooperate in good faith to find a
mutually acceptable solution in a timely manner, and failing such a
resolution at that level, the matter will be escalated to and resolved by
the Executive Sponsors.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
2
3.3 The leaders of the JDP Working Groups, the Management Leaders and
Executive Sponsors will be responsible for the management and coordination of
the development efforts in the AU JDP. AMD and UMC will convene--by telephone or
video conference, or in person--regular status update meetings on a monthly
basis with the objective that the JDP Working Group and Management Leaders
responsible for the program communicate routinely and regularly on all relevant
aspects of the AU JDP joint development work.
3.4 AMD and UMC will convene regular management review meetings on a
quarterly basis with the objective that the Executive Sponsors, Management
Leaders, and others responsible for the AU JDP meet regularly to review all
relevant aspects of the AU JDP joint development work and to enhance the
cooperation and resolve any issues. AMD and UMC intend that these quarterly
review meetings will alternate between UMC and AMD locations. The first such
management review meeting will be held on or before March 31, 2002.
4. JOINT DEVELOPMENT OF HIGH PERFORMANCE MPU PROCESSES
4.1 Based on the above, and subject to their obligations of confidentiality
to third parties, AMD and UMC will each contribute their requisite know-how as
necessary to jointly develop high performance MPU processes: at the *****
technology node, at the ***** technology node, and as may be agreed. For
purposes of the AU JDP, the ***** technology node is intended to refer to the
next generation below the ***** node shown in the UMC technology roadmap,
competitive with the ITRS roadmap and industry conditions.
4.2 Without limiting Clause 4.1 and subject to their obligations of
confidentiality to third parties, if, during their AU JDP work, either UMC or
AMD personnel become aware of information or developments that reasonably seem
material to the work or results of the AU JDP, they will promptly disclose such
matter to the other, and, thereafter the parties will cooperate to evaluate the
utility of the matter to the AU JDP.
4.2.1 Except as otherwise agreed in writing, neither UMC nor AMD will
seek or be entitled to *****.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
3
4.2.2 If any party believes they have information which may be
material to the AU JDP but which is subject to restrictions or which in the
event of disclosure to the other or for the AU JDP requires compensation to
unaffiliated third parties, AMD and UMC will cooperate in good faith to
evaluate the situation and to find a mutually satisfactory resolution
consistent with any obligations to such third parties.
4.2.3 UMC and AMD will cooperate to ensure that the JDP Working Groups
have knowledge of all technology and know-how reasonably useful to enable a
reasonably skilled team to participate in the JDP Working Groups as
intended and to utilize UMC's Advanced CMOS Platforms and Advanced MPU
Processes in their preferred manner (collectively, such technology and
know-how shall be referred to as "Necessary Background").
4.2.4 Notwithstanding anything to the contrary in Clauses 4.1 and/or
4.2, nothing in this JDA requires any party to disclose information or
ideas which that party, at the time in their own good faith judgment, deems
so experimental, so preliminary or so unsubstantiated that they would not
rely on such results in their own process development, and such matters
will not be considered "Necessary Background."
4.3 Through the working group efforts, AMD and UMC will jointly define high
performance MPU processes, at the ***** and ***** technology nodes and as may be
agreed (the "Advanced MPU Processes"), with the understanding that the processes
are intended (i) to follow and be compatible with UMC's Advanced CMOS Platform
at the technology node involved, and (ii) to meet AMD's MPU performance needs
and mutually agreeable manufacturing, reliability and quality criteria. Without
limiting the foregoing,
4.3.1 the parties intend that they will cooperate in the selection of
equipment specific for ***** (other than that selected to date by UMC) and
in the selection of the equipment set for the ***** node so that, to the
extent feasible, they will avoid and/or minimize incompatibilities.
4.3.2 the parties intend that the JDP Working Groups will formulate
specific plans and procedures for regular review of MPU production with the
Advanced MPU Processes (and with UMC's ***** MPU Process) for the purpose
of ongoing performance (including without limitation transistor speed and
gate delay) and manufacturing enhancements.
5. WORKING GROUP AND EXECUTIVE RESPONSIBILITIES
5.1 All development and technology issues will be resolved in the first
instance at the JDP Working Group level.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
4
5.2 If, at any time, the team leaders feel that a matter has not been
satisfactorily resolved, or, upon the written request of either party, the
matter will be escalated to AMD and UMC Management Leaders. If the matter is not
resolved at that level, then upon written request of either or both parties, it
will be escalated to the Executive Sponsors who will be responsible to find a
mutually acceptable solution in a timely manner.
6. EXPENSES AND MUTUAL SUPPORT
6.1 Except as otherwise agreed in writing, AMD and UMC will each pay *****,
provided that there will be assignment/delegation of engineers from each company
to the facilities of the other (if from AMD, these engineers will be "AMD
Delegates" and if from UMC, these engineers will be "UMC Delegates") to assist
in development, integration and/or transfer. The Management Leaders will
cooperate to agree upon, as part of their project definition and specific
working plans, the tasks that need to be accomplished, and any associated cost
allocation issues.
6.2 Without limiting the foregoing, and except as otherwise agreed in
writing, each party will be responsible for all compensation, travel, benefits,
and taxes with respect to its activities and personnel.
6.3 AMD and UMC will each arrange (at the expense of the company at the
host location) suitable office space for the engineers from the other assigned
to work at the host location, including reasonable communication and data line
connections.
6.4 All personnel of one company while visiting and/or working at
facilities or locations of the other will abide by the standard and customary
rules and practices of the host at the location involved.
7. INTELLECTUAL PROPERTY, TECHNOLOGY RIGHTS AND RESTRITIONS
7.1 Subject to the rights and obligations of the parties under this JDA, as
between UMC and AMD:
7.1.1 All inventions, conceptions, know-how and/or technology
developed and/or contributed by one party (or its employees or consultants)
without joint contribution by the other ("Party Inventions") will owned by
the party who developed and/or contributed the specifics involved, and that
party shall have the rights to any and all patentable subject matter
involved;
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
5
7.1.2 All inventions, conceptions, know-how and/or technology
conceived jointly by the parties pursuant to their efforts in the AU JDP
(including without limitation, rights to patents with respect to such
subject matter) ("Joint Inventions") will be jointly owned by the jointly
responsible parties. Without limiting the foregoing, the Management Leaders
will set up mutually agreeable mechanisms to allocate the responsibility to
prepare and prosecute applications for patents pursuant to such procedures
as will ensure orderly and efficient protection for intellectual property,
with the guideline that the costs of prosecution and maintenance for
specific joint patents will be shared equally by the jointly responsible
parties involved.
7.2 Subject to the rights and obligations of the parties under this JDA:
7.2.1 AMD grants UMC worldwide licenses to ***** the UMC Advanced CMOS
Platforms, the Advanced MPU Processes, and all Necessary Background, *****
to the fullest extent of AMD's ability to do so without the obligation to
pay unaffiliated third parties compensation for such grants, and
7.2.2 UMC grants AMD worldwide licenses to ***** the UMC Advanced CMOS
Platforms, the Advanced MPU Processes, and all Necessary Background, *****
to the fullest extent of UMC's ability to do so without the obligation to
pay unaffiliated third parties compensation for such grants, and
7.2.3 Either party may terminate the licenses granted to the other
under Clauses 7.2.1 and 7.2.2 in the event that the ***** is properly
terminated for material breach by the other (and the non-breaching party
may retain its rights and licenses under such Clauses), subject however to
the procedures agreed upon by the parties for dispute resolution.
7.2.4 AMD and UMC agree to negotiate a mutually acceptable ***** with
the target to close on a solution by March 31, 2002.
7.3 Regardless of anything to the contrary above, and subject to AMD's
compliance with its obligations in the Manufacturing Agreement to offer UMC the
*****, UMC shall not use the Advanced MPU Processes or the UMC Advanced CMOS
Platforms to manufacture ***** for any party other than AMD, except:
7.3.1 UMC may manufacture small engineering sample quantities of
product;
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
6
7.3.2 UMC may manufacture products for applications to be specified
and mutually agreed to at times after AMD qualification of the process
involved;
7.3.3 UMC may manufacture for third parties who (at the applicable
time) have a technology license and/or transfer from AMD to design,
manufacture or sell *****; and
7.3.4 in other specific situations in which UMC and AMD senior
executives mutually agree that the situation does not present a ***** to
AMD from the use of the technology involved; and
7.3.5 This restriction of Clause 7.3 shall expire upon any one or more
of the following: (i) if UMC and AMD mutually agree not to extend the JDP
to ***** or to terminate the JDP prior to qualification of the ***** in
UMC, (ii) the JDP is terminated for material breach by AMD, (iii) three
years after first qualification of any AMD Product with the process
involved, if at such time, AMD and UMC are not then engaged in a JDP for
Advanced MPU Processes, provided however that the restrictions of Clause
7.3 shall remain in place for a particular technology node *****
notwithstanding any such triggers for so long as AMD remains obligated (and
in compliance with such obligations) to purchase significant quantities of
MPU wafers from UMC or AU for such node. For purposes of this Clause 7.3.5,
"significant quantities" is intended to refer to volumes such as those
contemplated in the Manufacturing Agreements.
7.4 Subject to UMC's compliance with its obligations to supply AMD and
except as expressly stated in Clauses 7.5 to 7.9, AMD ***** UMC's Advanced CMOS
Platforms, the Advanced CMOS Processes, or the Necessary Background or any
specific information concerning any ***** other than AMD's Fab 25 (Austin) or
Fab 30 (Dresden) nor will AMD manufacture with such Restricted Technology any
products as a foundry or contract manufacturer for a third party from AMD's Fab
25 (Austin) or Fab 30 (Dresden) for a period of 3 years from the first
commercial shipment from UMC and/or AU fabs of a product manufactured thereby,
provided however that nothing in this Clause 7.4 shall prohibit AMD from using
the Restricted Technology to manufacture Flash in Fab 25 (Austin) and/or Fab 30
(Dresden) for FASL.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
7
7.5 Regardless of anything to the contrary, and except as stated in Clauses
7.6 to 7.9, AMD shall not have any rights under this JDA to disclose UMC
Advanced CMOS Processes, Advanced MPU Processes, or UMC Confidential Information
(as defined in the Mutual Reciprocal Non-Disclosure Agreement) to any third
party manufacturer of semiconductors, and AMD shall not have any rights under
this JDA to use such matters to manufacture semiconductors (in wafer, die or
chip form) for or on behalf of any third party.
7.6 Regardless of anything to the contrary in Clause 7.5, under appropriate
non-disclosure agreements commensurate with the restrictions stated in this JDA,
AMD shall be allowed to disclose Restricted Technology to third parties as may
be reasonably necessary to develop alternative manufacturing and/or technology
sources upon the occurrence of any one or more of the following events:
7.6.1 For reasons reasonably attributable to UMC, and without material
contributory fault by AMD, ***** or
7.6.2 For reasons other than material contributory fault by AMD, *****
or
7.6.3 In spite of good faith negotiations by UMC and AMD, UMC fails to
agree with AMD in a reasonably timely manner on future MPU process
technology development between the companies, or for reasons other than
material contributory fault by AMD, ***** or from other qualified partners,
or
7.6.4 If UMC or AU properly terminates a Manufacturing Agreement and
does not offer to continue to supply AMD with manufacturing services for
UMC Advanced CMOS Platform and/or Advanced MPU Processes in volumes and
under terms within the parties' then recent historical course of dealing
(provided however that this Clause 7.6.4 shall not require UMC or AU to
extend AMD any credit or accept financial terms other than as may be fair
market for a customer in AMD's position and with its financial history and
rating), or
7.6.5 If AMD properly terminates a Manufacturing Agreement due to
material breach by UMC or AU, or
7.6.6 in such other situations as the parties may negotiate.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
8
7.7 Regardless of anything to the contrary in Clause 7.5, and under the
conditions stated in this Clause 7.7, AMD shall be allowed to disclose, under
appropriate written non-disclosure agreements commensurate with the restrictions
stated in this JDA, Restricted Technology to FASL, and, to the extent required
under written non-foundry joint venture, joint product and/or joint development
agreements entered between AMD and other third party(ies), AMD may, for the
***** technology node, disclose Restricted Technology to ***** third parties
and, for the ***** technology node and other more advanced nodes to which the
parties agree to extend this JDA, AMD may disclose Restricted Technology to
***** third parties *****, subject to the following conditions:
7.7.1 The third party to whom the information is transferred must, at
the time of disclosure and at a minimum, meet one of the two following
conditions: (a) AMD must own a minimum of 40% of the third party, or (b)
*****.
7.7.2 The third party, who at the time of disclosure, must not derive
more than ***** and, if applicable, any shareholder who owns ***** of such
third party;
7.7.3 The third party may not use the information involved to
manufacture or sell *****, except upon terms which provide to UMC a
Reasonable Royalty for the Restricted Technology involved;
7.7.4 The third party may not use the information involved to *****,
provided however that the restriction in this Clause 7.7.4 shall expire
three years following commercial production of AMD MPU products with the
information involved at a UMC and/or AU facility;
7.7.5 In the event that AMD receives cash, royalties, tangible
property, profit sharing, or equity (by way of technical shares or
otherwise) in exchange or as part of the arrangement with a third party for
license or disclosure of Restricted Technology, the disclosure is subject
to prior agreement with UMC on equitable sharing of the benefit pursuant to
sharing to be negotiated between UMC and AMD.
7.7.6 Nothing in this Clause 7.7 shall waive or reduce in any fashion
any capacity or loading commitment made by AMD under the Manufacturing
Agreements.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
9
7.7.7 For purposes of this Clause 7.7, a ***** UMC for its
contributions to and investments in the technology involved, provided
however that it is the intent of the parties that a Reasonable Royalty for
a transfer of the Restricted Technology shall, for transfers that commence
more than three to five years after qualification of the node involved,
approach zero. Upon written request to do so, the parties will negotiate in
good faith to reach an agreement on a Reasonable Royalty for the specific
situation involved, provided however that if they fail to do so, the
Reasonable Royalty will be set in a manner binding on all parties by a
neutral decision-maker (or panel of decisionmakers) having experience in
such matters and under procedures which the parties will negotiate on or
before March 31, 2002. The procedures will, at a minimum, insure initiation
of the decision-making process within fifteen days of a written request to
negotiate Reasonable Royalty, and enable equitable and efficient
decision-making so that a resolution on any disputes can be secured within
thirty days of a request for such a neutral decision.
7.8 Regardless of anything to the contrary in Clause 7.5, under appropriate
non-disclosure agreements commensurate with the restrictions stated in this JDA,
AMD shall be allowed to disclose Restricted Technology to third parties as may
be reasonably necessary in connection with a sale of all or substantially all of
AMD's Fab 30 in Dresden Germany and/or AMD's Fab 25 in Austin Texas under the
following terms:
7.8.1 such information may not be used or employed to perform foundry
services within three years following commercial production of AMD MPU
products with the information involved at a UMC and/or AU facility, nor may
such a transfer occur to or for the benefit of any of UMC's then two most
significant independent foundry competitors in the industry, and
7.8.2 the process flows and modules in UMC's Advanced CMOS Platform,
Necessary Background and/or Advanced MPU Processes may not be transferred
or installed other than in the specific fab involved in the sale/transfer,
provided that this Clause 7.8.2 shall not prohibit the use of information
within such flows and modules to develop technology to be used elsewhere,
and
7.8.3 If the *****.
7.9 Regardless of anything to the contrary, nothing in this JDA shall
prohibit either party from disclosing or licensing to others any technology,
know-how or other intellectual property which was created and/or obtained
independently of the other.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
10
7.10 No mask work or patent licenses are granted expressly, or by
implication, estoppel or otherwise, under this JDA. The parties will cooperate
on library, cell, IP, test structure and other design aspects as they may deem
appropriate, and all rights concerning such matters as between them will be as
stated in a written agreement.
7.11 Notwithstanding anything herein to the contrary, either party may use
Residuals for any purpose, including without limitation use in development,
manufacture, promotion, sale and maintenance of its products and services;
provided that this right to Residuals does not represent a license under any
valid patents, copyrights or other intellectual property rights of the
disclosing party. The term "Residuals" means any information that are retained
in the unaided memories of the receiving party's employees who have had access
to the disclosing party's information pursuant to the terms of this Agreement.
An employee's memory is unaided if the employee has not intentionally memorized
the Information for the purpose of retaining and subsequently using or
disclosing it.
7.12 Except as expressly stated, this JDA will not serve to impair the
right of either AMD or UMC to develop, make, procure, market and/or maintain
products or processes, now or in the future, which incorporate features that may
be competitive with the technology developed pursuant to the AU JDP, or require
either AMD or UMC to disclose any planning information to the other. Nothing in
this JDA prohibits or restricts either AMD or UMC from developing or acquiring
technology, rights, know-how, processes or information, independently of the
other party, whether with or without the involvement of third parties.
7.13 Except as expressly agreed in writing, neither party will have any
responsibilities or obligations under this JDA to transfer or install processes
or know-how to or into premises or facilities of the other, nor will either
party have any responsibilities or obligations under this JDA to provide
technical support or service to the other for such transfer or installation.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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8. MISCELLANEOUS
8.1 The terms of the attached Miscellaneous Provisions and Definitions
Attachment are incorporated by reference.
8.2 The obligations of and rights under Clauses 4.2.1, 4.2.4, 6.2, 6.4,
7.1, 7.2, 7.3, 7.4 (except 7.4 shall not survive if this JDA terminates due to
material breach by UMC), 7.5, 7.6, 7.7, 7.8, 7.9, 7.10, 7.11, 7.12, 7.13, and 8
and the Miscellaneous Provisions and Definitions Attachment shall survive the
expiration or termination of this JDA.
Advanced Micro Devices United Microelectronics Corporation
/s/ Xxxxxx Xxxx /s/ Xxxxxx Xxxx
------------------------------------ ------------------------------------
Xxxxxx Xxxx, President & COO Xxxxxx Xxxx, Chairman and CEO
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
12
Exhibit List:
1.1 UMC Technology Roadmap and Target Time table ***** CMOS platform++
2.1 AMD Technology Roadmap and Target Time Table high performance capability &
associated transistor-specific modules++
3.1 Working Group Team Members, Team Leaders and Executive Sponsors
Attachment: Miscellaneous Provisions & Definitions Attachment
----------
++ Confidential treatment has been requested for Exhibits 1.1 (two pages) and
2.1 (one page) in their entirety.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
13
EXHIBIT 3.1
Working Group Team Members, Leaders & Executive Sponsors
--------------------------------------------------------
AU JDP WORKING GROUP TEAMS Exhibit 3.1
--------------------------- -----------
Node Project/Effort AMD Mgt UMC Mgt
---------------------------------------------------------------------------------------------------
Overall Chief Executive Advocate ***** *****
---------------------------------------------------------------------------------------------------
Overall AU JDP Executive Sponsor ***** *****
---------------------------------------------------------------------------------------------------
Overall Management Leader for AU JDP ***** *****
---------------------------------------------------------------------------------------------------
***** ***** ***** *****
---------------------------------------------------------------------------------------------------
***** ***** ***** *****
---------------------------------------------------------------------------------------------------
***** - Tech/Module Definition, Pgm plan ***** *****
- Integration Work
- Transistor Work
---------------------------------------------------------------------------------------------------
***** - Research ***** *****
---------------------------------------------------------------------------------------------------
agreement XX Xxx., LoI -> (MOU ->) Contract ***** *****
development
---------------------------------------------------------------------------------------------------
coordinator Assignee/staffing ***** *****
---------------------------------------------------------------------------------------------------
overall ***** ***** *****
---------------------------------------------------------------------------------------------------
overall Prod Eng./Prod. Roadmap ***** *****
---------------------------------------------------------------------------------------------------
***** ***** ***** *****
---------------------------------------------------------------------------------------------------
UMC/AMD Confidential Information
--------------------------------
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
14
MISCELLANEOUS PROVISIONS & DEFINITIONS ATTACHMENT
DEFINITIONS
"Applicable Law" means the laws of the State of California, without regard
to that body of law which pertains to conflicts and/or choice of law and
excluding the UN Convention on Contracts for International Sales of Goods,
provided however that for purposes of the JVA "Applicable Law" means the laws of
Singapore, without regard to that body of law which pertains to conflicts and/or
choice of law and excluding the UN Convention on Contracts for International
Sales of Goods.
"AU" means the joint venture to be formed under Singapore law pursuant to
the JVA entered between AMD and UMC.
"AU Business Plan" means the business plan to be prepared by AU pursuant to
the JVA.
"AU JDP" means the joint development program in which UMC and AMD
participate pursuant to the terms of the JDA.
"Advanced MPU Processes" shall mean the jointly developed high performance
MPU processes: at the ***** technology node, at the ***** technology node, and
as may be agreed, pursuant to the AU JDP, including without limitation, all
recipes, specifications, and flows reasonably used by either party to run such
processes in their respective manufacturing facilities.
"Delegates" means those engineers from AMD and/or UMC assigned or delegated
to the facilities of the other party (or to the facilities of AU) to work in the
AU JDP (if from AMD, these engineers will be "AMD Delegates" and if from UMC,
these engineers will be "UMC Delegates").
"JDA" means the Joint Development Agreement entered between AMD and UMC.
"JDP Working Group" means the working groups and teams assigned by each
party pursuant to Clauses 3.1 and 3.2 of the JDA.
"Joint Inventions" means all inventions, conceptions, know-how and/or
technology conceived jointly by the parties pursuant to their efforts in the AU
JDP (including without limitation, rights to patents with respect to such
subject matter).
"JVA" means the Joint Venture Agreement entered into between AMD and UMC
with respect to the venture currently named "AU Pte Ltd."
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
15
"Manufacturing Agreement(s)" shall mean the UMC-AMD Comprehensive Foundry
Agreement and the Manufacturing Agreement(s) to be entered by AMD and AU
pursuant to the JVA.
"Necessary Background" means all technology and know-how (i) which either
AMD and/or UMC have the ability to disclose to the other without violating
obligations to an unaffiliated third party, and (ii) which is reasonably useful
to enable a reasonably skilled team to participate in the JDP Working Groups as
intended and to utilize UMC's Advanced CMOS Platforms and Advanced MPU Processes
in their preferred manner.
"Party" shall refer to AMD, UMC, UMCi or AU as applicable, and "Parties"
shall mean each Party (AMD, UMC, UMCi and AU) which is signatory to the Party
Agreement involved.
"Party(ies) Agreements" means and includes the JVA, the JDA and the
Manufacturing Agreement(s).
"Party Inventions" means all inventions, conceptions, know-how and/or
technology developed and/or contributed by one party (or its employees or
consultants) without joint contribution by the other.
"UMC's Advanced CMOS Platforms" shall mean those general purpose CMOS
technology platforms developed solely or jointly by UMC at the ***** and *****
technology nodes with specifications and time of introduction competitive with
the ITRS roadmap, including without limitation, all recipes, specifications, and
flows reasonably used by UMC to run such processes in UMC's manufacturing
facilities, to the extent such technology is owned by UMC or which UMC has the
right to sublicense without the obligation to pay royalties to third parties.
MISCELLANEOUS AND GENERAL PROVISIONS
1. During the term of the AU JDP, neither party will solicit for employment any
person at the time employed by and/or working on behalf of the other.
2. Neither party shall be liable for failure to perform, in whole or in part,
its obligations under this Agreement if such failure is caused by any event or
condition not reasonably within the control of the affected party, including,
without limitation, by events of nature, fire, flood, typhoon, earthquake,
explosion, strikes, labor troubles or other industrial disturbances, unavoidable
accidents, war (declared or undeclared), acts of terrorism, sabotage, embargoes,
blockage, acts of governmental, judicial, administrative, military or other
authorities, riots, insurrections, or any other cause beyond the control of the
parties; provided, that the affected party promptly notifies the other party of
the occurrence of the event of force majeure and takes all reasonable steps
necessary to minimize the disruption to the other party and to resume
performance of its obligations so interfered with.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
16
3. [Intentionally omitted]
4. [intentionally omitted]
5. AS A SEPARATE LIMITATION, IN NO EVENT WILL ANY PARTY BE LIABLE TO THE OTHER
(i) FOR COSTS OF SUBSTITUTE GOODS, (ii) FOR ANY SPECIAL, CONSEQUENTIAL,
INCIDENTAL OR INDIRECT DAMAGES, OR (iii) FOR LOSS OF USE, OPPORTUNITY, MARKET
POTENTIAL, GOODWILL AND/OR PROFIT ON ANY THEORY (CONTRACT, TORT, FROM THIRD
PARTY CLAIMS OR OTHERWISE), provided however that in the event of material
breach by UMC and/or AU which is not cured within sixty days of written notice
from AMD that such breach was causing AMD to search for second sources for the
product involved, UMC and/or AU (whichever was the breaching party) shall be
responsible for *****. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OR OF ANY FAILURE OR INADEQUACY OF ANY REMEDY. Each Party
has consulted with counsel concerning their respective agreements and AU, and
enters into the JVA, the JDA and the Manufacturing Agreements with full advice
and understanding and accepting the risks involved.
6. Except as expressly stated in the JVA, the JDA and/or the Manufacturing
Agreement(s) no Party makes any warranties or representations (express, implied
or statutory). THE PARTIES EXPRESSLY DISCLAIM ALL SUCH OTHER WARRANTIES,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR PARTICULAR PURPOSE. Without limiting the foregoing, except as
expressly stated in the Party Agreements, there are no representations and/or
warranties concerning the subject matter of such Party Agreements, and/or
relating to AU of any sort or manner, and each Party expressly agrees that it is
not relying upon any such other representations and/or warranties. Each Party
has consulted with counsel concerning such Agreements and AU, and enters into
the Party Agreements with full advice and understanding and accepting the risks
involved.
6.1 Notwithstanding anything to the contrary (whether in the Party
Agreements or elsewhere), nothing contained in the Party Agreements, and/or in
the AU Business Plan shall be or be construed as:
6.1.1 a warranty or representation as to the validity, utility,
suitability or economic viability of this opportunity or of any
intellectual property or technology except as expressly stated in Clause
6.2 and/or in the Manufacturing Agreement(s);
6.1.2 a warranty or representation that any manufacture, sales, use or
other disposition of products to be manufactured by AU and/or UMC will be
free from infringement of patents, utility models and/or design patents
other than those under which licenses have been granted hereunder and/or
except as expressly stated in Clause 6.2 and/or in the Manufacturing
Agreement(s);
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
17
6.1.3 a warranty or representation that AU will be successful, that AU
will realize and/or fulfill any of its business plans, that AU will return
profit, or that the Parties will recover their investments (for purposes of
this Clause 6.1.3, no express covenant or obligation in the JVA shall be
eliminated and/or excluded by reason of it also being part of the AU
Business Plan, nor shall this Clause 6.1.3 absolve AU from efforts required
under the JVA to implement the AU Business Plan nor shall this Clause 6.1.3
relieve any obligation under Clause 4.4 of the JV MOU or the provisions
which implement that Clause in the JVA);
6.1.4 conferring any right to use in advertising, publicity, or
otherwise, any trademark, trade name or names of any Party, or any
contraction, abbreviation or simulation thereof; and/or
6.1.5 conferring by implication, estoppel or otherwise, any license or
other right under any class or type of patent, utility model or design
patent, provided however that each Party holding joint ownership rights to
joint inventions according to the JDA shall, subject to the express
limitations of and solely as expressly allowed under the JDA, have the
right to grant licenses with respect to such jointly owned inventions
without the consent of (and without any obligation to account to) any other
Party.
7. Without in any way limiting the provisions of the Party Agreements, each of
the Parties agrees that no products, items, commodities or technical data or
information obtained from a Party nor any direct product of such technical data
or information is intended to or shall be exported or reexported, directly or
indirectly, to any destination restricted or prohibited by Applicable Law
without necessary authorization by the Governmental Authorities, including
(without limitation) the Taiwanese Ministry of International Trade and Industry,
the United States Bureau of Export Administration (the "BEA") or other
Governmental Authorities of the United States and Taiwan with jurisdiction with
respect to export matters. Without limiting the generality of the foregoing,
each Party agrees that it will not, without authorization from the Office of
Export Licensing of the BEA, knowingly export or reexport to a destination
outside of the United States General License GTDR technical data or information
of United States origin subject to this Agreement, or the direct product
thereof, or the product of a plant or major component of a plant that is the
direct product thereof, without first providing any applicable export assurances
of the exporting party. Notwithstanding anything to the contrary, AMD will not
disclose to UMC and/or AU any information concerning processing, fabrication
and/or equipment which is subject to any applicable export restrictions without
first notifying UMC of these restrictions, and securing written consent from an
officer of UMC to the disclosure.
8. DISPUTES
8.1 Mediation:
8.1.1 Each Party agrees that in the event of a dispute arising out of
or in any way relating to any one or more of the Party Agreements, the
parties shall attempt to
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
18
resolve the dispute through mediation prior to instituting litigation or any
other adversary proceeding. A Party shall initiate a mediation by serving
written notice on the other party by facsimile and overnight mail. The parties
may select any mediator mutually agreeable to them. If the parties cannot agree
on a mediator within fifteen (15) days, they will, within five (5) days
thereafter submit a joint request for mediation to the San Francisco office of
the American Arbitration Association ("AAA") and request the AAA to select an
appropriate mediator with experience in resolving financial and commercial
disputes, preferably with experience in the semiconductor industry.
8.1.2 The mediation session shall occur within thirty (30) days of the
selection of the mediator unless the parties mutually agree to extend this
time, and shall be scheduled for not less than one day. Each party agrees
to send a representative with full settlement authority to the mediation.
The mediation shall be in the English language and shall be conducted
exclusively in Santa Xxxxx County, California, United States of America.
The parties agree to hold the content of the mediation in confidence and
further agree that the mediator is disqualified and shall be excluded from
testifying as a witness in litigation between the parties (except in
proceedings to recover damages for actionable torts committed in the
mediation). The parties further agree that the mediation shall be
considered to be a form of settlement negotiations, the content of which
shall not be admissible as evidence in any judicial proceeding (except in a
proceeding to recover damages for actionable torts committed in the
mediation). Each party shall bear its own expenses (including attorney
fees) for mediation proceedings under the Party Agreements, and an equal
share of the expenses of the mediator and, where applicable, the AAA. The
parties agree that any refusal to mediate under this section is a breach of
contract for which damages may be recovered in litigation between the
parties. Except as provided in Section 8.2 below, if the party who
ultimately prevails in any litigation institutes a court action or other
adversary proceeding without first attempting mediation as required hereby,
SUCH PREVAILING PARTY SHALL NOT BE ENTITLED TO ATTORNEYS' FEES OR COSTS
THAT MIGHT OTHERWISE BE AVAILABLE TO IT UNDER THE PARTY AGREEMENTS, ANY
APPLICABLE LAW OR COURT RULES.
8.2 Litigation: In the event a dispute is not resolved by such mediation
within sixty days of written notice of mediation pursuant to Clause 8.1 (or in
the event a party refuses to participate in such a mediation), the parties shall
have the right to initiate a suit, action or other adversary proceeding before
the appropriate court exclusively within the jurisdiction of the courts of Santa
Xxxxx County, California, or the United States District Courts for the Northern
District of California. In the event of such suit, action or other adversary
proceeding and solely for purposes of such an action or proceeding, the Parties
hereto (a) submit to the exclusive personal jurisdiction of the federal and
state courts in the State of California, and (b) expressly waive any right they
may have to a jury trial and agree that any such proceeding shall be tried by a
judge without a jury, and (c) expressly covenant not to bring any such suit or
claim before any other judicial tribunal. All defenses based on passage of time
shall be tolled from the date of timely written notice of mediation pursuant to
Section 8.1 above and, shall not resume until sixty days after such notice,
unless otherwise prohibited by law.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
19
8.2.1 Notwithstanding anything to the contrary, and subject to Section
8.1 above, the parties may, without breach of Clause 8.2, seek appropriate
judicial remedies from courts in Singapore having jurisdiction over such
matters, to the extent reasonably necessary but only with respect to or
concerning the JVA, corporate formalities, ownership of property, or other
matters peculiar to Singapore law and/or locations or property in
Singapore.
8.3 Applicable Law: The Party Agreements shall be governed by, construed,
enforced and interpreted in accordance with the internal substantive laws of the
State of California applicable to agreements to be made and to be performed
solely within such State, without giving effect to any conflicts or choice of
laws principles which otherwise might be applicable and excluding the United
Nations Convention on Contracts for the Sale of Goods provided however that the
JVA shall be governed by, construed, enforced and interpreted in accordance with
the internal substantive laws of Singapore applicable to agreements to be made
and to be performed solely within such jurisdiction, without giving effect to
any conflicts or choice of laws principles which otherwise might be applicable
and excluding the United Nations Convention on Contracts for the Sale of Goods.
8.4 Interim Relief: Nothing in this Section 8 shall be construed to
preclude any party from seeking injunctive or other provisional relief in order
to prevent irreparable harm pending mediation, provided however that such relief
may only be sought within the appropriate judicial forum as provided in section
8.2 above. In the event a party seeks interim relief without first attempting
mediation, such party shall not forfeit its entitlement to legal fees and costs
that would otherwise be available to it only if such party initiates mediation
within fifteen (15) days after initiating the action seeking interim relief. A
request to a court for interim relief shall not be deemed a waiver of the
obligation to mediate.
8.5 Legal Fees and Costs: Except as otherwise provided herein, the
substantially prevailing party in any proceeding brought by one party against
the other shall be entitled, in addition to any other rights and remedies it may
have, to reimbursement for the expenses reasonably incurred by it in such
proceeding, including but not limited to court costs, reasonable attorneys'
fees, reasonable costs, reasonable expenses of expert witnesses, reasonable
costs of appeal, and any other reasonable out-of-pocket expenses.
Notwithstanding anything to the contrary, neither party will be entitled to
recover or claim from the other any expenses incurred in connection with and/or
pursuant to any mediation efforts under Section 8.1.
9. Both parties agree that the details connected with the JDA, JVA and
Manufacturing Agreements will not be published or disclosed without the other
party's written permission or as required by Applicable Law or regulation,
provided however that this Clause 9 shall not restrict a party from repeating
disclosures made by the other. On or before February 8, the parties will
negotiate mutually acceptable terms for a
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
20
nondisclosure agreement pursuant to the JDA, and when negotiated, that JDP NDA
will be attached as an Exhibit and made part of the JDA.
10. All notices required or permitted to be given under the Party Agreements
shall be in writing by first class certified or registered airmail, postage
prepaid or by telex or telefax, if confirmed or acknowledged, to the address
specified below or to such other address as may be specified in writing by the
addressed party to the other party in accordance with this Section 10:
If to UMC:
United Microelectronics Corporation
Xx. 0 Xx Xxxx Xxxx 0
Science-Based Industrial Park
Hsin-Chu City, Taiwan
R.O.C.
Attention: Chairman's Office
Tel: x000 0 000-0000
Fax: x000 0 000-0000 and to x000 0 0000-0000
If to AMD:
Advanced Micro Devices, Inc.
Xxx XXX Xxxxx
X.X. Xxx 0000
Xxxxxxxxx, Xxxxxxxxxx 00000-0000
U.S.A.
Attention: General Counsel
Tel (USA): 408/000-0000
Fax (USA): 408/774-7002
If to UMCi:
UMCi Pte Ltd.
0 Xxxxxxx Xxxx
#00-00 XxxxxxXxxxx Xxxx
Xxxxxxxxx 000000
Attention: President
Tel: x00 000-0000
Fax: x00 000-0000
Each such notice or other communication shall for all purposes be treated as
effective or as having been given as follows: (i) if delivered in person, when
delivered; (ii) if sent by airmail, at the earlier of its receipt or at 5 p.m.,
local time of the recipient, on the seventh day after deposit in a regularly
maintained receptacle for the deposition of airmail, as the case may be; and
(iii) if sent by recognized courier service, on the date shown in the written
confirmation of delivery issued by such delivery service. Either party may
change the address and/or addressee(s) to whom notice must be given by giving
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
21
appropriate written notice at least seven (7) days prior to the date the change
becomes effective.
11. The Party Agreements and their Exhibits, all of which are incorporated
herein by reference, set forth the entire understanding between UMC and AMD with
respect to the subject matter hereof and merges all prior agreements, dealings,
negotiations, promises, representations and communications. The terms of the
Party Agreements shall govern any sales contract between the parties for the
sale and purchase of the wafers as well as any and all exchanges of confidential
information regardless of any other document signed and/or executed or agreement
made prior to January 31, 2002. No modification, alteration or amendment of the
Party Agreements or their Exhibits (whether express, implied, by custom, course
of dealing or otherwise) shall be effective unless in writing and signed by both
parties.
12. Except as expressly permitted under their terms none of the Party
Agreements nor any of the rights and obligations created hereunder may be
assigned, transferred, pledged, or otherwise encumbered or disposed of, in whole
or in part, whether voluntarily or by operation of law or otherwise, by any
party without the prior written consent of the other party, provided however
that the Party Agreements and the rights and obligations thereunder may be
assigned in whole to a successor to all or substantially all of the assets or
business of a Party hereto. The Party Agreements shall inure to the benefit of
and be binding upon the parties' permitted successors and assigns.
13. The Party Agreements shall be governed by and under the Applicable Law. If
any term or provision of any Party Agreement shall be determined to be invalid
or unenforceable under Applicable Law, such provision shall be deemed severed
from such agreement, and a reasonable valid provision to be mutually agreed upon
shall be substituted. In the event that no reasonable valid provision can be so
substituted, the remaining provisions of such Agreement shall remain in full
force and effect, and shall be construed and interpreted in a manner that
corresponds as far as possible with the intentions of the parties as expressed
in such Agreement.
14 TERM AND TERMINATION
14.1 The term of the Party Agreements will be for period stated in the
specific agreement involved.
14.2 In the event any material breach of a Party Agreement by either party
is not corrected within sixty (60) days after delivery of written notice
describing such breach, the particular Party Agreement may be terminated
immediately upon further written notice of termination from the non-breaching
party, provided however that this Clause 14.2 shall not waive or relieve any
party from the requirements of Clause 8.
14.3 Either party shall also have the right to terminate such Party
Agreement forthwith by giving written notice of termination to the other party
at any time, upon or after:
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
22
14.3.1 the filing by such other party of a petition in bankruptcy or
insolvency; or
14.3.2 any adjudication that such other party is bankrupt or
insolvent; or
14.3.3 the filing by such other party of any legal action or document
seeking reorganization, readjustment or arrangement of its business under
any law relating to bankruptcy or insolvency; or
14.3.4 the appointment of a receiver or bankruptcy trustee for all or
substantially all of the property of such other party; or
14.3.5 the making by such other party of any general assignment for
the benefit of creditors; or
14.3.6 the institution of any proceedings for the liquidation or
winding up of such other party's business or for the termination of its
corporate charter.
14.4 The exclusions and limitations of Clauses 5 and 6 will survive the
termination of the applicable Party Agreement, and the exclusions and
limitations of liability and of remedies shall apply notwithstanding any claim
of a failure of any one or more remedies to accomplish their purpose. THE
PARTIES EXPRESSLY WAIVE AND RELINQUISH ANY CONTRARY RIGHTS WITH RESPECT TO THE
SUBJECT MATTER OF CLAUSES 5 AND 6 UNDER ANY AGREEMENT, AND/OR APPLICABLE LAW,
DECISION, AND/OR CUSTOM OR PRACTICE.
15. MISCELLANEOUS--Miscellaneous
15.1 The failure of any Party to enforce, or the delay by any Party in
enforcing any of its rights under the Party Agreements shall not be deemed a
waiver or a containing waiver of such rights or a modification of any Party
Agreement, and such party may, within the time provided by applicable law,
commence appropriate proceedings to enforce any and/or all such rights.
15.2 The Clause headings in the Party Agreements are for convenience only
and do not define or limit nor will they be used to construe the content of such
Clauses.
15.3 Each Party expressly represents and warrants that it is free to enter
into the Party Agreements and that it has not made and will not make any
creations or commitments in conflict with the provisions of the Party
Agreements, or which reasonably might interfere with the full and complete
performance of its obligations under the Party Agreements. Each Party further
represents and warrants that the Party Agreements, and the performance of its
respective obligations under the Party Agreements, and the consummation of the
transactions contemplated under the Party Agreements have been duly authorized
and approved by all necessary action, and all necessary consents or permits have
been obtained, and neither the execution of the Party Agreements nor the
performance of the Party's obligations under the Party Agreements will violate
any term
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
23
or provision of any valid contract or agreement to which such party is subject
and/or by which such party is bound. No further actions or consents are
necessary to make the Party Agreements valid and binding contract, enforceable
against the respective parties in accordance with their terms.
15.4 No Party shall be entitled to act on behalf of and/or to bind any one
or more of the others.
15.5 The Party Agreements, and any one or more of them, may be executed in
any number of counterparts, all of whom when taken together shall constitute a
single instrument.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
24