EX-10.12 6 dex1012.htm WAFER FOUNDRY AGREEMENT [***] CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES...
Exhibit 10.12
[***] | CERTAIN CONFIDENTIAL INFORMATION CONTAINED IN THIS DOCUMENT, MARKED BY BRACKETS, HAS BEEN OMITTED AND FILED SEPARATELY WITH SECURITIES AND EXCHANGE COMMISSION PURSUANT TO RULE 406 OF THE SECURITIES ACT OF 1933, AS AMENDED. |
Master
THIS WAFER FOUNDRY AGREEMENT is made effective as of the 4TH day of JUNE, 2002, by and among the Systems I.C. Division of HYNIX SEMICONDUCTOR AMERICA, a California corporation, located at 0000 Xxxxx Xxxxx Xxxxxx, Xxx Xxxx, Xxxxxxxxxx 00000 hereinafter (“HSA”) functioning as the contract facilitator and limited agent of HSI, and HYNIX SEMICONDUCTOR INC., LTD. (“HSI”) a Republic of Korea corporation with its principal offices located at San 000-0, Xxx-xx, Xxxxx-xxx, Xxxxx-xx, KyoungKi-do, 467-701 Korea, performing as the FOUNDRY, and ADVANCED ANALOGIC TECHNOLOGIES, INC., a California corporation, located at 0000 Xxxxxxx Xxxxxxx Xxxxx 000, Xxxxxxxxx, XX 00000, hereinafter (“CUSTOMER”).
ARTICLE I
Section 1.0. Where set forth in this Agreement, the following terms shall have the meanings as defined in this Section:
“Design Specifications” shall mean the specifications, test vectors, GDSII or MEBES databases and other design parameters and guidelines provided by CUSTOMER to the FOUNDRY as more fully set forth in Exhibit B (Parametric and Other Specifications), which Exhibit is attached hereto and incorporated herein and all of which shall be of adequate detail and specificity to enable the FOUNDRY to generate other tools, mask sets and other items as customarily necessary to prepare the product for production.
“Effective Date” shall mean the effective date of this Agreement which shall be the date first above written.
“Exhibit” or “Exhibits” shall mean any and all exhibits to this Agreement, which by this reference are incorporated into and made a part hereof.
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“Foundry” shall mean, unless otherwise mutually agreed to in writing by the parties, Hynix Semiconductor Inc., a corporation of the Republic of Korea.
“Intellectual Property (IP)” shall mean, custom design blocks developed by HSI and provided to customer for the propagation of his design and intended for Production at FOUNDRY.
“Library” shall mean the Foundry supplied libraries and design kits provided to CUSTOMER for the design of Product.
“Products” shall mean the semiconductor wafers and / or finished turnkey units to be manufactured under this Agreement as more fully described in the Exhibits hereto.
“Production” shall mean the volume Fabrication of Products as semiconductor wafers following a written, formal Acceptance and Release For Production by CUSTOMER to HSI and pursuant to a written Volume Purchase Agreement.
“Production Lot” shall mean a total of 25 8 inch wafers and / or 50, 6 inch wafers, processed together at FOUNDRY.
“Prototype Lot” shall mean a total of 25 wafers or less processed with special engineering instructions provided by CUSTOMER or FOUNDRY.
“Proprietary Information” shall mean any and all designs, technical, scientific, marketing or business information or data, engineering know-how, trade secrets, drawings, artwork, documentation, circuitry, processes, illustrations, mask work, and any other information, whether or not copyrightable or patentable, of any party to this Agreement which is deemed by such party to be confidential and/or proprietary, including any such Proprietary Information which may be developed by the parties in the future.
“Risk Production” shall mean the fabrication of Products, prior to formal acceptance of the production units.
“Target Yield” shall mean an average number of good Products resulting from production wafers agreed to by CUSTOMER and FOUNDRY.
“Turn Key” shall mean the complete fabrication process which includes, wafer fabrication, wafer probing, packaging and testing of Products.
“Wafers” shall mean the silicon discs of varying sizes to be processed by FOUNDRY into semiconductor wafers in accordance with the information supplied by CUSTOMER as specified in Exhibit B.
ARTICLE II
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Section 2.1. Support. CUSTOMER will in a timely manner against the Development Schedule, provide HSA and the FOUNDRY with such documentation, specifications and additional engineering support as may be reasonably necessary for the FOUNDRY to complete the productization of the Product in preparation for beginning Production.
ARTICLE III
Section 3.1. Nonrecurring Engineering Charges (“NRE”). CUSTOMER agrees to pay to HSA for the work performed during the first iteration, described in Section 3.2, the nonrecurring engineering charges as set forth in Exhibit A. The NRE includes engineering work for unprobed wafers or blind build units as previously agreed to by CUSTOMER and FOUNDRY.
CUSTOMER may subcontract mask making to HSA and FOUNDRY, or HSA may subcontract photomask making to a designated subcontractor. In any case, the expense, responsibility and ownership of and for the masks remain CUSTOMER’s. If an HSA and FOUNDRY designated photomask subcontractor is used, the subcontractor shall be subject to the non-disclosure terms at least as restrictive as stated herein and be subject to the written consent of CUSTOMER and HSA, and FOUNDRY.
CUSTOMER shall have a period of thirty (30) days to inspect the EXHIBIT B Prototypes. Within such thirty (30) day period, CUSTOMER shall provide HSA and FOUNDRY with a written notice of its acceptance or rejection of the Prototypes. The notice to be provided by CUSTOMER, if a rejection, shall set forth in sufficient and specific detail the reasons for rejection, and such notice shall be accompanied by the return of all of the Prototypes. If written notice of rejection or a request for additional evaluation time, not to exceed ten (10) business days, is not received by HSA and FOUNDRY within such thirty (30) day period, then the Prototypes are here agreed to have been accepted by CUSTOMER
Upon receipt by HSA of the Prototypes and a notice from CUSTOMER rejecting the Prototypes, HSA and FOUNDRY shall evaluate the reasons for the rejection and inspect the Prototypes.
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If the reasons for rejection are due to a nonconformity of the Prototypes to the PCM data set out in Exhibit B, or are due to a nonconformity of the Prototypes of the post-simulation layout, then Foundry shall accept responsibility and correct any such nonconformity at its expense.
In all other cases the Prototypes are here agreed to have been accepted and CUSTOMER shall accept responsibility for the rejection and pay the balance of the nonrecurring engineering charges at the rates set forth in EXHIBIT A and any additional charges required for a second iteration.
Section 3.3. Products and Process
Amendments to electrical test specification limits specified in Exhibit B and in Hynix’s process flows shall only be made upon prior written consent of CUSTOMER and HSA.
HSA and FOUNDRY shall process, at CUSTOMER’S expense, first silicon for each Product meeting process specifications included in Exhibit B. First silicon may include mutually agreed Poly Critical Dimension or any other relevant experiment conditions, in which case the Exhibit B specification is waived for electrical parameters effected by the split.
CUSTOMER shall perform or separately contract wafer sort/probe, assembly, and final test (including production burn-in if appropriate) for the first silicon qualification Lot and provide the test results to HSA AND FOUNDRY within (3) months of receipt date. CUSTOMER shall perform or separately contract all wafer level, Product and assembly stresses and evaluations required to complete the qualification and provide HSA and FOUNDRY with the results within (3) months.
CUSTOMER will accept responsibility for the design meeting FOUNDRY’S electrical and physical design rules per specifications listed in Exhibit B.
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ARTICLE IV
PURCHASE OF VOLUME PRODUCTION PRODUCTS
CUSTOMER shall place purchase orders for the Production Product with the volume and delivery requirements for the three (3) month period following the date for which the Production Product will be available for delivery. Thereafter, the first week of each successive month after issuance of the initial purchase order, CUSTOMER shall issue additional purchase orders and/or amendments so that HSA shall continue to have on a revolving basis, firm purchase orders effective for the next immediate succeeding three months following the issuance of such additional purchase orders. Each purchase order shall obligate CUSTOMER to purchase at least the minimum of 2 (25 or 50 wafers per lot) wafer lots or units equivalent to 2 lots. No purchase order shall require delivery of any Product earlier than ninety (90) days from the effective date of the purchase order without prior written approval from HSA. Every such purchase order shall contain such unit pricing, delivery and quantity terms as accepted in writing by HSA. The purchase and sale of Products between CUSTOMER or CUSTOMER’s approved agents, if any, and HSA shall be governed solely and exclusively by this Agreement, and HSA’s Volume Production Sales Agreement, which shall supersede the terms and conditions contained in any purchase order, acknowledgment or other document related to the purchase and sale of Products, all of which terms and conditions are hereby expressly waived.
The Purchase Orders and Forecasts for Product not scheduled to ship within the following ninety (90) days, may be increased or decreased from the FOUNDRY Capacity Commitment in accordance with the following schedule:
Month 1 – 3 | Month 4, | Month 5, | Month 6, | Month 7 – 12 | ||||
Firm | 10% | 30% | 50% | 100% |
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Risk Order Pricing on Order Cancellation:
Per Wafer | All technologies | |
a. Prior to wafer start: | No Charge | |
b. After wafer start: | 100% |
Section 4.6. Pricing, Minimum Orders. Pricing for the Products to be fabricated by FOUNDRY shall be as set forth in Exhibit A. Prices for Products for any firm commitments in any purchase orders shall be fixed and not subject to increase. Unit prices shall include all applicable taxes. Minimum ordering quantities and minimum release quantities are set forth in Exhibit A. No orders shall be accepted, and no Products released unless such orders and releases are at least equal to or greater than the minimum quantities set forth in Exhibit A.
CUSTOMER credit requirements which do not meet or exceed the credit limit authorized by HSA, shall be secured through the establishment, with HSA as beneficiary, of an Irrevocable Standby Letter of Credit or other financial mechanism which HSA in its sole discretion may require, in the amount equal to the additional desired credit. HSA shall provide written notice to CUSTOMER, prior to HSA’s accessing such Letter of Credit.
Section 4.10. Contractor Assembly Company To Buy Product.
A (CONTRACTOR), if any, which contracts with CUSTOMER for assembly/packaging on CUSTOMER’s behalf, may buy Production Product directly from HSA upon CUSTOMER’s advance written authorization, guarantee of payment and HSA’s agreement thereto. In a case where a CONTRACTOR wishes to place an order with HSA, the method of payment, place of delivery terms and other conditions may be different from those already in place under CUSTOMER purchase orders. Similarly, CONTRACTOR’s creditworthiness will be subject to HSA’s prior approval. Such differences will be agreed upon independently between HSA and CONTRACTOR, but all the other terms and conditions in a CONTRACTOR’s purchase order shall be of no effect and completely subordinate to those in this Agreement and in HSA’s Volume Production Sales Agreement.
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Should CUSTOMER place a production lot on hold for reasons other than yield improvement and the Wafer Bank Plan as listed in Exhibit C, CUSTOMER shall pay HSA a hold fee of one hundred dollars ($100) for each calendar day that a Production Lot is held. Production Lots may be held only at certain manufacturing steps. Hynix will provide notice to CUSTOMER with respect to such manufacturing steps. The cumulative maximum number of days that a Production Lot may be held is 60 days. There is no charge for holding prototype lots although prototype lots cannot be held for longer than 30 days.
In the event that during the term of this Agreement, FOUNDRY finds it necessary to shut down any CUSTOMER product lines in FOUNDRY’S fabs located at Xxxxx Xx, Ichon or Gumi, FOUNDRY agrees to provide CUSTOMER with 6 months’ written notice
CUSTOMER shall have the option, as specified in the following subparagraphs, to halt and scrap partially fabricated Risk Production and Production Wafers, paying HSA according to the following formula:
Scrap Price = (% of process completed x Wafer Price)
% Complete | Process Point | |
50% | Before LDD Photo/Implant | |
70% | Before Metal-1 Photo | |
100% | After Metal-1 Photo |
Section 4.14. Lot Identification and Visual Inspection. Prior to shipping Wafer Lots, HSA will meet the following criteria:
1) Wafer Lot Identification - All Production Lots shipped to CUSTOMER will be scribed with the correct Lot identification number as provided by CUSTOMER or FOUNDRY. CUSTOMER will provide lot ID in case FOUNDRY needs to experiment at its own cost. The wafer scribe shall meet the specification as defined by CUSTOMER or FOUNDRY.
2) Visual Inspection – FOUNDRY shall perform visual inspection based upon the Visual Inspection Procedure as stated in Exhibit B and which may be updated by FOUNDRY with/without notice to CUSTOMER.
Section 4.15. Parametric Wafer Testing. FOUNDRY will perform standard Parametric test sampling (PCM testing) and accept/reject plan as defined in Exhibit B. The wafer sites must be tested for each parameter defined in Exhibit B. CUSTOMER and HSA and FOUNDRY will work together in confirming those parameters in Exhibit B that may be marginal, and adjust such parameters.
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CUSTOMER shall request a Return Material Authorization (RMA) number and/or credit back from HSA in accordance with the Agreement for such material. Materials returned by CUSTOMER without receipt of said RMA will not be accepted but will be returned to CUSTOMER, freight collect.
HSA will notify CUSTOMER of any lot scrap that occurs during processing, or PCM test. It will be CUSTOMER’S decision to either have HSA and = FOUNDRY replace the scrapped lot, or to reduce the expected delivery on the forecast as defined in Section 4.3 (Rolling Forecast).
Delivery lead time for each production release shall be the quoted number weeks from date of release per process technology. All good Wafers from each Production Lot must be shipped together as a single Lot. Wafers from the same Lot are not to be split into different shipments. HSA will notify CUSTOMER prior to shipment of any lots with less than 15 wafers, and explain the cause of the loss of wafers. CUSTOMER and HSA will mutually agree on material disposition within five (5) working days after receipt by CUSTOMER to include acceptance, conditional acceptance, or scrap based on CUSTOMER’s quality and reliability requirements.
HSA must notify CUSTOMER of any delivery delays caused by HSA’s or FOUNDRY’s scheduling conflict, Wafer scrap, Fab shut downs, non-conforming material, etc. HSA and FOUNDRY will use the most reasonable business efforts to expedite recovery of delivery delays.
Section 4.21. Work-In-Process (WIP) Report. HSA and FOUNDRY shall provide CUSTOMER with an updated WIP lot location report at least once every week through e-mail or “Web-site”.
Section 4.22. Ship Alert. Hynix shall provide CUSTOMER with a ship alert via fax or Email within two (2) day after a shipment is made. The ship alert shall include the Airway xxxx number, number of boxes shipped, as well as the information given on the packing list.
ARTICLE V
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ARTICLE VI
(a) for cause upon thirty (30) days’ written notice of a material breach of this Agreement, provided, however, that at HSA’s and FOUNDRY’S sole option they may enforce any firm purchase order in place unless either of them is in breach; however, if the breach is cured within the thirty (30) days following receipt of such notice, no termination shall occur based on material breach;
(b) by either party immediately upon written notice to the other party, to the extent permitted by law, if the other party files a voluntary petition in bankruptcy or otherwise seeks protection under any law for the protection of debtors, has a proceeding instituted against it under any bankruptcy law which is not dismissed within sixty (60) days of filing, is adjudged a bankrupt, has a court assume jurisdiction of its assets under a reorganization act, has a trustee or receiver appointed by a court for all or a substantial portion of its assets for the benefit of its creditors, or admits in writing its inability to pay its debts as they become due; or any party is acquired by or merged with another business where the party is not a surviving entity; or
(c) by either party for convenience upon ninety (90) days’ prior written notification to the other party, provided, however, that CUSTOMER’s firm purchase order(s) shall remain in full force and effect, and that within the ninety (90) day period, CUSTOMER is allowed to place one last purchase order. CUSTOMER shall continue to be liable therefore and the terms of this Agreement and the Volume Production Sales Agreement shall remain in full force and effect until such time that HSA receives full payment of all invoices and the other terms have been fulfilled.
Section 6.4. Survival. The provisions of Article V, Sections 6.3, Article VII, Article VIII and Section 9 and 10 shall survive the expiration, cancellation or termination of this Agreement.
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ARTICLE VII
LIMITED WARRANTY; DISCLAIMER;
Section 7.1. Limited Warranty. FOUNDRY warrants that the Production Products, when delivered hereunder to the CUSTOMER pursuant to the HSA Volume Production Sales Agreement, shall be free from defects in material and workmanship, and shall conform in all respects to the Customer’s Specifications, which were accepted hereunder as the basis for fabrication of wafers. This warranty shall not extend to any Products which have been subject to damage in CUSTOMER’s shipping, storage, mishandling, misapplication, misuse, neglect, accident or abuse, improperly repaired or installed, altered or modified in any way or by Acts of God. HSA shall have no liability whatsoever for any defects or problems of any kind or nature. For a period of twelve (12) months following shipment of the Production Product, FOUNDRY will repair or replace, free of charge, all Production Products determined to be defective in manufacture, provided, however, that CUSTOMER promptly notifies HSA of such defect in writing timely providing all available information related thereto and obtains a Return Material Authorization Number (“RMA”) prior to returning any defective Product so that HSA may properly coordinate FOUNDRY’s technical investigation and remedial efforts with CUSTOMER. HSA may make an independent determination of the accuracy of any claim. In any event, FOUNDRY liability for any defective Product shall in no event exceed one hundred percent (100%) of the purchase price of the defective Product.
Section 7.2. Disclaimer and Limitation of Liability. EXCEPT AS SPECIFICALLY PROVIDED IN SECTION 7.1 ABOVE, HSA AND FOUNDRY HEREBY SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, WRITTEN OR ORAL, STATUTORY, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF DESIGN, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR USE OR PURPOSE OR ANY WARRANTIES ARISING FROM A COURSE OF DEALING, TRADE USAGE OR TRADE PRACTICE. NO REPRESENTATION OR OTHER AFFIRMATION OF FACT, ORAL OR WRITTEN INCLUDING, BUT NOT LIMITED TO, STATEMENTS REGARDING CAPACITY, SUITABILITY FOR USE OR PERFORMANCE OF PRODUCTS, WHETHER MADE BY HSA, FOUNDRY OR THEIR EMPLOYEES, AGENTS OR OTHERWISE, WHICH IS NOT CONTAINED IN THIS AGREEMENT SHALL BE DEEMED TO BE A WARRANTY TO CUSTOMER FOR ANY PURPOSE OR GIVE RISE TO ANY LIABILITY OF HSA OR FOUNDRY, THEIR AGENTS OR EMPLOYEES WHATSOEVER. SPECIFICATION OF ANY ACCEPTANCE CRITERIA CONCERNING ANY ITEM TO BE DELIVERED PURSUANT TO THIS AGREEMENT SHALL NOT BE DEEMED TO CONSTITUTE A WARRANTY WITH RESPECT TO SUCH ITEM. NEITHER PARTY SHALL BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND OR NATURE ARISING FROM ANY PERFORMANCE OR FAILURE TO PERFORM, AND IN NO EVENT SHALL DAMAGES BE MORE THAN THE NONRECURRING ENGINEERING COST TO A LIQUIDATED DAMAGE MAXIMUM OF TEN THOUSAND DOLLARS FOR THE DESIGN WORK OF ANY PRODUCT ORDERED BY CUSTOMER. THE PROVISIONS HEREOF SHALL BE THE SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF THIS AGREEMENT.
ARTICLE VIII
WARRANTIES BY CUSTOMER; INDEMNIFICATION
Section 8.1. Warranty By CUSTOMER. CUSTOMER hereby warrants that the Design Specifications and its transfer thereof to HSA and FOUNDRY, including, but not limited to, net lists and test lists, do not infringe any trade secrets, copyrights, patents, mask work rights or any other proprietary rights of any third party nor do any of the Design Specifications as augmented comprise matters regulated by U.S. Department of Commerce Export Control Regulations or U.S. Department of Defense International Traffic In Arms Regulations and to the extent that any such regulations may be involved, CUSTOMER has secured or otherwise confirmed the issuance to HSA and FOUNDRY hereunder of the necessary Export Licenses to allow the lawful transfer of such materials to HSA and FOUNDRY.
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Section 8.2. Indemnification. CUSTOMER hereby agrees to defend and indemnify HSA and FOUNDRY and to defend and hold them harmless from or for any breach or violation of CUSTOMER’s warranties under Section 8.1 above and against any claims, actions, liabilities, damages, and costs resulting from any alleged infringement of any third party patent, copyright, mask work right, trade secrets, or any other proprietary rights related to the Design Specifications. CUSTOMER shall not issue any warranties or guarantees with respect to Production Products to any person which in any way obligates or purports to obligate HSA or FOUNDRY to any such person.
ARTICLE IX;
Section 9.1. Assignment. No party may assign this Agreement nor delegate its duties hereunder other than as provided herein without the prior written consent of the other party, and any attempted assignment or delegation shall be null and void. However, a Party may assign this Agreement with prior notification to an entity which acquires, directly or indirectly, substantially all of its assets or merges with it and the Party is the surviving entity. Subject to the above, this Agreement shall be binding upon and inure to the benefit of the successors and assigns of the Parties hereto.
Section 9.2. Waiver. No term or condition of this Agreement shall be deemed waived unless such waiver is in a writing executed by the party against whom the waiver is sought to be enforced. Failure or delay in the exercise of any right, power or privilege hereunder shall not operate as a waiver thereof or of any subsequent failure or delay.
Section 9.3. Law to Govern, Jurisdiction. This Agreement shall be governed by and construed in all respects under the laws of California, without regard to rules concerning conflicts of law. The Parties hereby submit to the exclusive, personal jurisdiction of the appropriate state and federal courts located in the County of Santa Xxxxx, State of California, for the resolution of all matters related to this Agreement including arbitration thereof as set forth below.
Section 9.4. Severability. If any of the provisions of this Agreement in any way violate or contravene any laws applicable to this Agreement, such provision shall be deemed not to be a part of this Agreement and the remainder of this Agreement shall remain in full force and effect.
Section 9.5. Notice. All notices required pursuant to this Agreement shall be in writing and delivered personally or via facsimile or via registered or certified mail, return receipt requested, to the address of the parties first above appearing, which address may be changed by written notice of the same to the other party. Mailed notices shall be deemed to be effective as of the date of mailing.
To CUSTOMER: | To HSA and FOUNDRY | |
Analogic Tech | Hynix Electronics America | |
0000 Xxxxxxx Xxxxxxx, Xxxxx 000 | 0000 X. Xxxxx Xx. | |
Xxxxxxxxx, Xxxxxxxxxx 00000 | Xxx Xxxx, Xxxxxxxxxx 00000 | |
ATTENTION: Director of Operations | ATTENTION: Director of Western Area Sales | |
Telephone: 000 000-0000 x000 | Telephone: 000 000-0000 | |
Facsimile: 000 000-0000 | Facsimile: 000 000-0000 |
Section 9.6. Entire Agreement; Amendments. This Agreement, including all exhibits and attachments hereto, which by this reference are incorporated into and made a part of this Agreement, constitutes the entire understanding and agreement of the Parties related to the subject matter hereof, and supersedes any and all prior or contemporaneous offers, negotiations, agreements and/or understandings, written or oral,
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as to such subject matter. Except as provided herein, no amendment, revision or modification of this Agreement shall be effective or binding unless made in writing and signed by the Party against whom enforcement is sought.
Section 9.7. Counterparts. This Agreement may be executed in any number of counterparts, and each counterpart shall constitute an original instrument, but all such separate counterparts shall constitute one and the same instrument.
Section 9.8. Attorney’s Fees. If a dispute arises concerning the meaning or interpretation of any provision of this Agreement, the Party not prevailing in such dispute shall pay any and all reasonable costs and expenses including attorney’s fees, incurred by the other Party in resolving such dispute or enforcing or establishing its rights hereunder.
Section 9.9. Further Assurances. The parties to this Agreement shall each perform such acts, execute and deliver such instruments and documents, and do all such other things as may be reasonably necessary to accomplish the transactions contemplated in this Agreement.
Section 9.10. Mediation and Arbitration of Disputes.
(A) Mediation. Any dispute between the Parties arising from or related to the subject matter of this Agreement will first be discussed by the high-ranking executives of each company, each of whom shall be fully authorized to settle the dispute. If such dispute cannot be resolved by such high-ranking executives, the dispute shall be mediated before an impartial, neutral mediator mutually agreed to by the Parties within 20 days following failure to resolve the dispute. The provisions of California Evidence Code Section 1152.5 shall be applicable to all statements and admissions made, and all documents prepared, in connection with such mediation. Any mediation fee shall be divided equally between the Parties. If any Party commences arbitration without first attempting to resolve the matter through mediation, then in the discretion of the arbitrator, that Party shall not be entitled to recover attorneys’ fees, even if they would otherwise have been available to that Party.
(B) Arbitration. In the event the Parties are unable to resolve the dispute through mediation, the dispute shall be finally resolved through binding arbitration pursuant to the rules of the American Arbitration Association, as amended, and the Parties hereto specifically agree to be bound thereby. The arbitration shall be decided by an a panel of three arbitrators mutually acceptable to the Parties, provided, however, that if the parties cannot agree on one arbitrator, then the Parties shall each appoint an arbitrator who shall then appoint the third arbitrator by mutual agreement. The Parties hereby agree that the arbitration of the dispute shall be conducted in Santa Xxxxx County, State of California.
(C) Nothing in this Agreement will be deemed to prevent either Party from seeking injunctive relief or any other provisional remedy from any court having jurisdiction over the Parties and the subject matter of the dispute as necessary to protect either Party’s name, proprietary information, trade secrets, know-how, or any other proprietary rights.
Section 9.11. Independent Contractors. The Parties are each independent contractors and not joint venturers, partners, agents or representatives of the other. Neither Party has any right to create any obligation on the part of the other Party.
Section 9.12. Force Majeure. Neither Party shall be liable for any loss, damage, delay or failure of performance resulting directly or indirectly from any cause beyond its reasonable control, including, but not limited to, acts of God, extraordinary traffic conditions, riots, civil disturbances, wars, states of belligerence or acts of the public enemy, strikes, labor disturbances, work stoppages, or the laws, regulations, acts or failure to act of any governmental authority, provided that neither of the Parties shall be excused for failure or delay in making payments of money due and payable hereunder.
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Section 9.15. Exhibits. The following Exhibits are attached hereto and made a part hereof:
EXHIBIT A | : Product Pricing, Scheduling and Quantities | |
EXHIBIT B | : Parametric (PCM) and Other Specifications | |
EXHIBIT C | : Volume Production Sales, Terms and Condition | |
EXHIBIT D | : Multiparty Disclosure Agreement (NDA) |
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(“CUSTOMER”) | ||
By: | /s/ Xxxxxxx X. Xxxxxxxx | |
Name: | Xxxxxxx X. Xxxxxxxx | |
Title: | President & CEO/CTO | |
HYNIX SEMICONDUCTOR AMERICA (“HSA”) | ||
By: | /s/ Xxxx Xxxxxxxxxx | |
Name: | XXXX XXXXXXXXXX | |
Title: | VP/GM System IC Division | |
HYNIX SEMICONDUCTOR INDUSTRIES. (“HSI”) | ||
By: | /s/ Xxxxxx Xxx | |
Name: | XXXXXX XXX | |
Title: | VP & GM of SMS Division. |
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HSAHHSYSIC.8900
EXHIBIT A
PRODUCT WAFER PRICING, SCHEDULING AND QUANTlTIES(to be completed by HSA, HSI and
ADVANCED ANALOGIC TECHNOLOGIES, INC.)
The following prices are currently in effect for wafers on Hynix’s fabrication process:
(FILL IN FOR EACH CUSTOMER PRODUCT)
UNPROBED WAFERS
CUSTOMER Alias | Hynix Alias | Process Description | Wafer Qty | Hynix Wafer Price (USD) | ||||
AATXXX | 0.6um 5V/0.6um HV | [***] | $ [***] | |||||
AATXXX | 0.6um 5V/0.6um HV | [***] | $ [***] |
TURNKEY
CUSTOMER Alias | Pkg | Hynix Alias | Process Description | Target Yield | Hynix Unit Price (USD) | |||||
N/A |
Note: The above prices shall be negotiated and agreed upon in writing by both parties on an annual basis.
NON-RECURRING ENGINEERING CHARGES
CUSTOMER Alias | Hynix Alias | Process Description | Engineering Charge | |||
AATxxxx | 0.6um 2P3M 5V | $[***] | ||||
AATxxxx | 0.6um 2P2M 5/16V | $[***] |
*** | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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DEVELOPMENT SCHEDULE (Original Qual Plan)
Action | Alias: 1 Date: May 2002 | Alias: 2 Date: July 2002 | Alias: 3 Date: Sep 2002 | |||
Database release by CUSTOMER | 5/?/2002 | 7/?/2002 | 9/?/2002 | |||
Mask tooling confirmed between CUSTOMER and FOUNDRY | ||||||
PG and Frame work completed by FOUNDRY | ||||||
Job Deck reviewed and confirmed by CUSTOMER | ||||||
1st Prototype Development fab lot start/out date | ||||||
CUSTOMER evaluation of 1st Prototype Development Lot | ||||||
2nd Prototype Development fab lot start/out date | ||||||
CUSTOMER evaluation of 2nd Prototype Development Lot | ||||||
Start/Process/Fab-Out of first qual lot | ||||||
Start/Process/Fab-Out of second qual lot | ||||||
Start/Process/Fab-Out of third qual lot | ||||||
CUSTOMER evaluation of qualification lots | ||||||
Qualification testing and completion of all tests and qualification paperwork | ||||||
Action | Alias: (fix) Date | Alias: (fix) Date | Alias: Date | |||
Database release by CUSTOMER | ||||||
Mask tooling confirmed between CUSTOMER and FOUNDRY | ||||||
PG and Frame work completed by FOUNDRY | ||||||
Job Deck reviewed and confirmed by CUSTOMER | ||||||
1st Prototype Development fab lot start/out date | ||||||
CUSTOMER evaluation of 1st Prototype Development Lot | ||||||
2nd Prototype Development fab lot start/out date | ||||||
CUSTOMER evaluation of 2nd Prototype Development Lot | ||||||
Start/Process/Fab-Out of first qual lot | ||||||
Start/Process/Fab-Out of second qual lot | ||||||
Start/Process/Fab-Out of third qual lot | ||||||
CUSTOMER evaluation of qualification lots | ||||||
Qualification testing and completion of all tests and qualification paperwork |
Initials
Date: | Date: | Date: | ||
CUSTOMER: | HSA: | HSI: |
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EXHIBIT B
PARAMETRIC (PCM) AND OTHER SPECIFICATIONS
List of CUSTOMER and HSA and FOUNDRY Design and Process Specifications and Rules Numbers.
Waivers and PCM Specifications.
Design Rule Specification Number(s):
Electrical Specification Number(s):
Spice Model Specification Number(s):
Mask Specification Number(s):
Customer Tooling and Device Specification Number(s) (COT Check Request):
Assembly Drawing Specification Number(s):
Test Program Specification Number(s):
PCM Specification Number(s):
Specification Number(s) for Wafer Procurement
Visual Inspection Specification Number(s):
Reliability and OA Specification Number(s):
Test Baseline Spec:
Assembly Baseline Spec:
Packing Baseline Spec:
(To be completed by Hynix and ADVANCED ANALOGIC TECHNOLOGIES, INC. engineering)
Device(s) | Specification Description | Specification Number | ||
Design Rule | HI60S-D1.0/HL60S-D1 9 | |||
Electrical Spec | HI60S-E1.0/HL60S-E1 7 | |||
Spice Model Mask Spec | HI60S-S1.0/HL60S-S1 9 | |||
PCM Spec | HI60S-W0.0/HL60S-W1 .0 | |||
Wafer Procurement Spec | ||||
Visual Inspection Spec | HEIS-CSQGA-003 | |||
Reliability and QA Spec | ||||
Customer Tooling and Device Form | NA | |||
Customer Tooling and Device Form | NA | |||
Customer Tooling and Device Form | NA | |||
Assembly Drawing | NA | |||
Test Program | NA | |||
Test Program | NA | |||
Test Program | NA | |||
Product Change Notification | ???? |
Yield Guarantee (at wafer sort) and Reimbursement/Discount Plan
Sort Yield | Discount | |
>/= 80% | 0% | |
70~79% | 10% | |
50~69% | 20% | |
40~49% | 40% | |
</=40% | RMA |
Note: Applies to any die size equal to 3mm x 3mm or smaller.
Note: Discounts will be applied to new wafer orders.
Note: RMA will be for wafer replacement only.
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EXHIBIT C
VOLUME PRODUCTION SALES AGREEMENT
TERMS AND CONDITIONS
(attach current standard terms)
Volume Purchase Agreement
CUSTOMER Alias | Hynix Alias | Period | CUSTOMER Expected Purchase Quantity | Hynix Expected Supply Quantity | Production Cycle Time (days / layer) | |||||
AATxxxx | ? | [***] | [***] | [***] | [***] | |||||
AATxxxx | ? | [***] | [***] | [***] | [***] |
Wafer Bank Plan
Period | Payment Terms | |
[***] | [***] | |
[***] | [***] | |
[***] | [***] |
Note: Bank lots will be stored at metal 1, 2 or 3 mask steps.
Initials
Date: | Date: | Date: | ||
CUSTOMER: | HSA: | HSI: |
*** | Certain information on this page has been omitted and filed separately with the Commission. Confidential treatment has been requested with respect to the omitted portions. |
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EXHIBIT D
MULTIPARTY NON DISCLOSURE AGREEMENT
(Attach copy of signed NDA)
19