EXHIBIT 10.22
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SIMTEK / AMKOR TECHNOLOGY DEVELOPMENT, LICENSE AND PRODUCT AGREEMENT
This Agreement is made and entered into as of the Effective Date by and between
Simtek, ATI and Anam, based on the terms defined below.
Whereas, AMKOR and Simtek have expertise in the design, development, and
production of semiconductor products and semiconductor manufacturing processes;
Whereas, ATI and Anam have an arrangement whereby, among other things, ATI acts
as the exclusive marketer of Anam foundry services to third parties;
Whereas, Simtek has designed nonvolatile static RAMs and related nonvolatile
technology for semiconductor memory products;
Whereas, Anam has a modern wafer semiconductor fabrication facility which is
capable of manufacturing semiconductor products of 0.25 micron design, and
below;
Whereas, Simtek and AMKOR wish to cooperatively use their joint resources to
develop the capability of, but not necessarily restricted to manufacturing 0.25
micron semiconductor products, including certain nonvolatile products of Simtek;
Whereas, AMKOR wishes to supply semiconductor products to Simtek;
Whereas, AMKOR also wishes to utilize Simtek's proprietary processes and
information to manufacture and sell semiconductor products utilizing nonvolatile
static RAMs and other nonvolatile memory technology, and Simtek desires to grant
a license to AMKOR for such purpose; and
Whereas, Simtek wishes to obtain, through AMKOR, a manufacturing source for
fabricating Simtek nonvolatile products with a capability of but not necessarily
restricted to 0.25 micron designs and to obtain a process flow with a capability
of but not necessarily restricted to a 0.25 micron designs for use at Simtek.
NOW THEREFORE, in consideration of the premises and covenants herein contained,
the receipt and sufficiency of which is hereby acknowledged, the Parties agree
as follows:
SECTION 1. DEFINITIONS
As used in this Agreement and the Exhibits hereto, unless the context indicates
otherwise, the following terms shall have the following meanings:
1.1 "Agreement" shall mean this Development, License and Product Agreement,
together with all Exhibits hereto, between Simtek and AMKOR, as the same may be
supplemented, modified, amended or restated from time to time in the manner
provided herein.
1.2 "AMKOR" shall mean ATI and/or Anam, as the context requires.
1.3 "ATI" shall mean AMKOR Technology, Inc., a Delaware corporation, having a
place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000.
1.4 "Anam" shall mean Anam Semiconductor, Inc., a Korean company having a place
of business at Seoul, Republic of Korea.
1.5 "Simtek" shall mean Simtek Corporation, a Colorado corporation, having a
place of business at 0000 Xxxxxxxxxx Xxxxx, Xxxxxxxx Xxxxxxx, Xxxxxxxx 00000.
1.6 "Affiliate" in the case of AMKOR shall mean a corporation, partnership,
joint venture, association, business trust or similar entity (a) which is
controlled, directly or indirectly, by ATI or Anam; or (b) in which a majority
of the members of the directing body are also members of the Board of Directors
or equivalent of ATI or Anam. For the purposes of this definition, control means
with respect to: (a) a corporation having stock, the ownership, directly or
indirectly, of more than fifty percent (50%) of the securities of any class or
classes, the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the directors (or persons performing similar
functions) of such corporation; or, (b) any other entity, the power to direct
the management of such entity through the ownership of at least a majority of
its voting securities or the right to designate or elect at least a majority of
the members of its directing body by contract or otherwise.
1.7 "Affiliate" in the case of Simtek shall mean a corporation, partnership,
joint venture, association, business trust or similar entity (a) which is
controlled, directly or indirectly, by Simtek; or (b) in which a majority of the
members of the directing body are also members of the Board of Directors or
equivalent of Simtek. For the purposes of this definition, control means with
respect to: (a) a corporation having stock, the ownership, directly or
indirectly, of more than fifty percent (50%) of the securities of any class or
classes, the holders of which are ordinarily, in the absence of contingencies,
entitled to elect a majority of the directors (or persons performing similar
functions) of such corporation; or, (b) any other entity, the power to direct
the management of such entity through the ownership of at least a majority of
its voting securities or the right to designate or elect at least a majority of
the members of its directing body by contract or otherwise.
1.8 "Party" in the case of AMKOR shall mean ATI and Anam and in the case of
Simtek shall mean Simtek.
1.9 "Third Party" shall mean an entity other than AMKOR or Simtek, which is not
an Affiliate of either AMKOR or Simtek.
1.10 "Facility" in the case of Simtek shall mean its offices and laboratories in
Colorado Springs, Colorado, and in the case of AMKOR shall mean its offices and
manufacturing operations worldwide, including that of Anam in Bucheon, Korea, as
appropriate for the function being addressed.
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1.11 "AMKOR Technical Information" shall mean all information and Technology
provided by AMKOR to Simtek pursuant to this Agreement, to the extent such
information or Technology is acquired or developed by AMKOR prior to the
Effective Date or is acquired by or developed by or for AMKOR without access to
or use of the Simtek Technical Information during the term of this Agreement.
1.12 "Simtek Technical Information" shall mean all information and Technology
provided by Simtek to AMKOR pursuant to this Agreement, to the extent such
information or Technology is acquired or developed by Simtek prior to the
Effective Date or is acquired by or developed by or for Simtek without access to
or use of the AMKOR Technical Information during the term of this Agreement.
1.13 "Joint Technical Information" shall mean information or Technology which is
not Simtek Technical Information or AMKOR Technical Information and which AMKOR
and Simtek develop jointly under this Agreement pursuant to the Joint
Development Project, including without limitation the Integrated Process.
1.14 "SONOS Process" shall mean Simtek's process for implementing nonvolatile
static RAMs and other nonvolatile memory technology for semiconductor products.
SONOS Process includes, without limitation, all transistor level models and
technology, but does not include SONOS Circuit IP.
1.15 "SONOS Circuit IP" shall mean Simtek's proprietary memory cell designs for
nonvolatile static RAM modules or blocks and other nonvolatile memory modules or
blocks.
1.16 "AMKOR Base Process" shall mean AMKOR's process for manufacturing
semiconductor products, as such process currently exists or may be modified by
AMKOR from time to time.
1.17 "Integrated Process" means the process and Technology for fabricating
semiconductor products, consisting of the AMKOR Base Process and the SONOS
Process as integrated by the Parties pursuant to the terms hereof.
1.18 "Joint Development Project" shall mean the efforts of the Parties pursuant
to this Agreement to develop the Integrated Process.
1.19 "Proprietary Right" shall mean any and all patents, patent applications,
mask work rights, copyrights, trade secrets, know-how and/or other recognized
legal principles and their equivalents throughout the world, including without
limitation, design patents, utility models, registrations, certificates of
utility, continuations, continuations in part, and divisions, but not including
trademarks and trade names.
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1.20 "Technical Information" shall mean in the case of Simtek, the Simtek
Technical Information; in the case of AMKOR, or AMKOR's Affiliate, the AMKOR
Technical Information; and in the case of the Parties jointly, the Joint
Technical Information.
1.21 "Updates" shall mean modifications made by a Party, for whatever purpose,
to the Simtek Technical Information, the AMKOR Technical Information, the Joint
Technical Information, the SONOS Process or the Integrated Process.
1.22 "Effective Date" shall mean the date that this Agreement is signed by the
later-signing Party.
1.23 "Confidential Information" shall mean any information: (a) disclosed by one
Party (the "Disclosing Party") to the other (the "Receiving Party"), which, if
in written, graphic, machine-readable or other tangible form is marked as
"Confidential" or "Proprietary," or which, if disclosed orally or by
demonstration, is identified at the time of initial disclosure as confidential
and such identification is reduced to a writing delivered to the Receiving Party
within thirty (30) days of such disclosure; or (b) which is otherwise deemed to
be "Confidential" by the terms of this Agreement. Without limiting the
foregoing, all AMKOR Technical Information and the AMKOR Base Process are
Confidential Information of AMKOR and all Simtek Technical Information and the
SONOS Process are Confidential Information of Simtek, even if not marked as
confidential.
1.24 "Technology" shall mean know-how, show-how, techniques, design rules, trade
secrets, inventions (whether or not patented or patentable), algorithms,
routines, software, files, design rules, databases, works of authorship,
processes, devices and hardware.
1.25 "Wafer" means a semiconductor wafer in whatever stage of manufacture.
SECTION 2. DEVELOPMENT
2.1 JOINT DEVELOPMENT. Simtek and AMKOR will each use commercially reasonable
efforts to cooperatively and jointly develop the Integrated Process as described
in Exhibit A.
2.2 SIMTEK DISCLOSURE. Simtek will disclose to AMKOR all information and
Technology of Simtek related to the SONOS Process that is reasonably necessary
for the Joint Development Project or for AMKOR to exercise its rights under
Section 4.3.
2.3 AMKOR DISCLOSURE. AMKOR will disclose to Simtek all information and
Technology of AMKOR related to the AMKOR Base Process that is reasonably
necessary for the Joint Development Project. Simtek acknowledges and agrees that
certain underlying process technology used by AMKOR is provided by certain Third
Parties to AMKOR under license, and that AMKOR shall not be required to provide
to Simtek any information or Technology which would violate any agreement
between AMKOR and any Third Party.
2.4 LIMITATIONS. Each Party shall fully and promptly disclose any limitations
known to such Party to exist in the SONOS Process, the Integrated Process and
the Joint Technical Information to the other Party in writing.
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2.5 ACCESS TO AMKOR FACILITIES. AMKOR will give Simtek reasonable access to its
Facilities for the purposes of observing and evaluating AMKOR's process flows
that relate to the Joint Development Project, consistent with operations
considerations upon proper notice and supervision.
2.6 ACCESS TO SIMTEK FACILITY. Simtek will give AMKOR and its actual or
prospective licensees and sublicensees, reasonable access to its Facility for
the purposes of observing and evaluating Simtek's process flows, including
without limitation the SONOS Process, which relate to the Joint Development
Project, consistent with operations considerations upon proper notice and
supervision.
2.7 QUALIFICATION. The Parties agree to use commercially reasonable efforts to
jointly seek to qualify the Integrated Process in accordance with generally
accepted industry standards.
SECTION 3. OWNERSHIP
3.1 AMKOR TECHNICAL INFORMATION. AMKOR shall be the sole owner of the AMKOR
Technical Information, including the AMKOR Base Process.
3.2 SIMTEK TECHNICAL INFORMATION. Simtek shall be the sole owner of the Simtek
Technical Information, including the SONOS Process.
3.3 JOINT TECHNICAL INFORMATION. Subject to Sections 3.1 and 3.2, Simtek and
AMKOR shall have an equal and undivided one-half (1/2) joint ownership interest
in the Joint Technical Information and all patents obtained therefrom without
the duty to account, as further provided in Section 3.5.
3.4 SOLE PROPRIETARY RIGHTS. Each Party shall have the right (but not the
obligation) to apply for and secure all forms of Proprietary Rights on any and
all of that Party's Technical Information. Each Party hereby agrees to assist,
cooperate with and to assign to the other Party those rights that it may possess
in order to effectuate the ownership of the AMKOR, Simtek and Joint Technical
Information as provided herein.
3.5 JOINT PROPRIETARY RIGHTS.
(a) Each Party has the right, subject to the terms hereof, to (i) use and
exploit its interest in the Joint Technical Information, and (ii) transfer its
ownership interest in the Joint Technical Information to any Third Party, in
each case without the consent of the other Party and without the obligation to
account to the other Party for profits derived therefrom. Notwithstanding the
foregoing or any other provision herein, each Party's rights to use and exploit
the Joint Technical Information shall be subject to and limited by (x) the
confidentiality obligations in Section 7 relating to the other Party's
Confidential Information, and (y) the other Party's underlying ownership rights
in any Technical Information or Proprietary Rights of such other Party,
including those included in the Joint Technical Information and the Integrated
Process.
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(b) The Parties hereby agrees to assist, cooperate with and to assign to
each other jointly those rights that each of them may possess in the Joint
Technical Information in order to effectuate the ownership of the Joint
Technical Information as provided herein.
(c) If a Party desires to file for patent protection for any inventions
embodied in the Joint Technical Information, such Party shall first notify and
consult with the other Party. If the notified Party desires to participate, the
Parties shall then jointly and cooperatively prepare and file any necessary
documents and filings, in which event they shall bear all costs equally and
jointly own any rights thereby obtained (which shall include the unrestricted
right to sublicense). If the notified Party declines to participate in obtaining
any such patent protection, the other Party shall then have the right to pursue
such patent alone, in which case such other Party shall bear all costs of and,
notwithstanding Section 3.3, own all rights resulting from, such patent and such
patent shall not be considered jointly owned.
(d) Each Party shall promptly notify the other Party if it becomes aware of
a possible infringement by a Third Party of any of any patents in which the
Parties share a joint ownership interest under Section 3.5(c) (excluding patents
resulting from any application in which the notified Party has declined to
participate). If either Party desires to take any action against such an
infringing or misappropriating Third Party, such Party shall first notify the
other party hereto and consult with such notified Party regarding such action.
If the notified Party desires to participate in such action, the Parties shall
then jointly and cooperatively pursue such action, in which event they shall
bear all costs equally and share in any damages or other recoveries equally,
provided that either Party may at any time decide not to participate further in
such action, in which case any further costs shall be borne by and all damages
and other recoveries shall be received by the Party which continues to pursue
such action. If a Party declines to participate in such action, the other Party
shall then have the right to pursue such action alone, and shall bear all costs
of and receive all damages and other recoveries from such action.
Notwithstanding the foregoing, if a Party declines to participate in such an
action or withdraws from such an action, such Party shall nevertheless, at the
request of the other Party, cooperate with the other Party, at the cost of the
other Party and subject to any reasonable conditions (including indemnification
against counterclaims by the third party), to the extent which may be necessary
to enable the other Party to pursue such action effectively, including without
limitation joining such action as an indispensable party.
(e) If a Party ("Declining Party") declines to participate in obtaining
patent protection for any inventions embodied in the Joint Technical Information
pursuant to Section 3.5(c) and the other Party ("Licensing Party") later obtains
such patent protection (a "Licensed Patent"), then the Licensing Party hereby
grants to the Declining Party a perpetual, non-exclusive, royalty-free license
to practice the Licensed Patent, provided however that (i) such practice does
not infringe any other Proprietary Rights of the Licensing Party, and (ii) such
license shall not give the Declining Party any rights to use the Licensing
Party's Technical Information.
3.6 PROPRIETARY RIGHTS. Neither party shall apply to secure Proprietary Rights
covering the other Party's Technical Information without the express written
consent of the other Party.
3.7 UPDATES. Subject to Sections 3.1 through 3.3, each Party shall be the sole
owner of those Updates made by such Party, subject however to the other Party's
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rights to any Technical Information or Proprietary Rights included in such
Updates. During the term of this Agreement, Simtek will provide to and discuss
with AMKOR any Updates made by or on behalf of Simtek to the SONOS Process and
the Simtek Technical Information. Simtek shall not modify the Integrated Process
or the Joint Technical Information except pursuant to AMKOR's request, and there
shall be no limitation on AMKOR's right to modify the Integrated Process except
to the extent provided in the MSA for the process used by AMKOR to make products
for Simtek under the MSA.
SECTION 4. LICENSE AND USE RIGHTS
4.1 AMKOR TECHNICAL INFORMATION. Subject to the terms and conditions of this
Agreement, Simtek may use the AMKOR Technical Information solely for the purpose
of creating the Integrated Process pursuant to the Joint Development Project.
Notwithstanding anything to the contrary in this Agreement, no license or other
rights are granted by AMKOR to Simtek under any AMKOR Proprietary Rights or
AMKOR Technical Information.
4.2 SIMTEK TECHNICAL INFORMATION. Subject to the terms and conditions of this
Agreement, AMKOR may use the Simtek Technical Information for the purpose of
creating the Integrated Process pursuant to the Joint Development Project and in
the exercise of the license in Section 4.3.
4.3 SIMTEK LICENSE TO AMKOR. Subject to the terms and conditions of this
Agreement, Simtek grants AMKOR a worldwide, irrevocable, perpetual,
non-exclusive, nontransferable (except as provided in Section 10.4),
royalty-free, sublicensable license, under all of Simtek's Proprietary Rights,
including without limitation Simtek's rights in the Simtek Technical
Information, Joint Technical Information, SONOS Process, Integrated Process and
Updates, to use and modify the Integrated Process and the Joint Technical
Information to design, make (including have made), use, sell and import any
semiconductor products. The foregoing does not extend to the use of the SONOS
Circuit IP by AMKOR for Third Parties, unless Simtek has licensed such SONOS
Circuit IP to the Third Party. Accordingly, if an AMKOR customer desires to use
SONOS Circuit IP, then such customer shall be required to obtain the necessary
rights therein directly from Simtek.
4.4 SUBLICENSES. Any licenses and sublicenses granted by AMKOR to Third Parties
under this Section 4 shall be no less restrictive than those restrictions
contained in this Agreement which are applicable to AMKOR.
SECTION 5. CONSIDERATION
5.1 COSTS. Except as otherwise specifically set forth in this Agreement, AMKOR
and Simtek shall each bear their own costs and expenses connected with (a) the
participation in the Joint Development Project, (b) the testing of Wafers, (c)
the initial bona fide attempt to qualify any one or ones of the nonvolatile
static RAM products. Notwithstanding the above, the Parties will assume
responsibility for certain costs as follows:
(a) Simtek will be responsible for purchases of reticles through the
integration of the SONOS development process.
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(b) Simtek will be responsible for in-house hardware required to test and
evaluate the test chips and Simtek designed products (e.g.: probe
cards, test fixtures, etc.)
(c) Amkor will be responsible for its own fixed plant and baseline process
equipment, in-house engineering staff and prototype development lot
costs, up to its variable cost.
5.2 RoYALTY FOR MEMORY CELLS AND RELATED CIRCUITS. Simtek will negotiate in good
faith with Amkor and/or Amkor Affiliates and customers for use of SONOS Circuit
IP. Simtek represents and warrants that its intent is to license the SONOS
Circuit IP.
5.3 INSTALLATION OF JOINT TECHNICAL INFORMATION. Should any Third Party licensee
or sublicensee of AMKOR pay a fee for the installation of the Integrated
Process, then AMKOR shall pay to Simtek a sum equal to one half of the amount by
which such fee exceeds the costs of labor, time and expenses incurred by AMKOR
in installing the Integrated Process for such Third Party licensee or
sublicensee.
SECTION 6. PRODUCT PURCHASES
6.1 SIMTEK PURCHASE OF PRODUCTS. Simtek agrees to purchase from AMKOR (a)
AMKOR's standard products and (b) Wafers designed by Simtek using the Integrated
Process, on the basis of written purchase orders, pursuant to the Manufacturing
Services Agreement between Simtek and ATI, dated December 7, 2001 ("MSA"), a
copy of which is attached as Exhibit B.
6.2 MOST FAVORED CUSTOMER. During the term of this Agreement, AMKOR agrees to
sell products designed using the SONOS Process to Simtek at prices 7.5% less
than those prices received by any Third Party ordering like quantities of
products designed using the SONOS Process on substantially the same commercial
terms and conditions, at the time of product shipment by AMKOR. Notwithstanding
the foregoing, such percentage discount shall be reduced to 5% beginning January
1, 2004, for the remainder of the term of this Agreement.
6.3 SIMTEK RIGHT TO PURCHASE. During the term of this Agreement or as long as
AMKOR makes the Integrated Process available to the general marketplace, AMKOR
agrees to supply wafers to Simtek under the terms of Sections 6.1 and 6.2, as
applicable.
SECTION 7. CONFIDENTIAL INFORMATION
7.1 MANNER OF DISCLOSURE. Disclosure of Technical Information, to the extent
that such Technical Information is embodied in documents, shall be made by
delivery of two (2) copies. The receiving Party shall furnish written notice to
the other Party that such documents have been received. Each Party will
demonstrate and explain the practical use and operation of its Technical
Information in such appropriate detail as to permit performance hereunder
assuming reasonably competent technical skills available to the receiving Party.
7.2 CONFIDENTIAL INFORMATION EXCLUSIONS. Notwithstanding the provisions of
Section 1.23, Confidential Information shall exclude information that the
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Receiving Party can demonstrate: (i) was independently developed by the
Receiving Party, as evidenced by the Receiving Party's business records, without
any use of the Disclosing Party's Confidential Information or by the Receiving
Party's employees or other agents (or independent contractors hired by the
Receiving Party) who have not been exposed to the Disclosing Party's
Confidential Information; (ii) becomes known to the Receiving Party, without
restriction, from a source (other than the Disclosing Party) that had a right to
disclose it without breach of this Agreement; (iii) was in the public knowledge
or literature at the time it was disclosed or enters the public knowledge or
literature through no act or omission of the Receiving Party; or (iv) was
rightfully known to the Receiving Party, without restriction, at the time of
disclosure.
7.3 CONFIDENTIALITY OBLIGATION. The Receiving Party shall treat as confidential
all of the Disclosing Party's Confidential Information and shall not use such
Confidential Information except as expressly permitted under this Agreement. The
Receiving Party shall treat the Disclosing Party's Confidential Information in
the same manner and with the same care that the Receiving Party treats its own
like Confidential Information but in no event with less than reasonable care.
7.4 REMEDIES. Unauthorized use by the Receiving Party of the Disclosing Party's
Confidential Information will diminish the value of such information. Therefore,
if the Receiving Party breaches any of its obligations with respect to
confidentiality or use of Confidential Information hereunder, the Disclosing
Party shall be entitled to obtain equitable relief to protect its interest
therein, including injunctive relief, as well as money damages.
7.5 REQUIRED DISCLOSURE. In the event the Receiving Party must disclose the
Disclosing Party's Confidential Information pursuant to the order or requirement
of a court, administrative agency, or other governmental body, the Receiving
Party shall provide prompt notice thereof to the Disclosing Party to allow the
Disclosing Party at its sole cost to obtain a protective order, and the
Receiving Party shall also use its reasonable efforts to obtain a protective
order, assist the Disclosing Party in obtaining a protective order or otherwise
prevent public disclosure of such information.
7.6 RETURN OF AMKOR CONFIDENTIAL INFORMATION. Upon any expiration or termination
of this Agreement, Simtek shall return to AMKOR, and Simtek shall not retain any
copies of, all AMKOR Confidential Information and Technical Information.
7.7 THIRD PARTY CONFIDENTIAL INFORMATION. Simtek acknowledges and agrees that
certain Confidential Information that will be disclosed by AMKOR to it hereunder
is also Confidential Information of Texas Instruments ("TI") provided by TI to
AMKOR. Simtek further consents and agrees that its obligations with respect to
Confidential Information disclosed to it hereunder are also for the benefit of
TI and that accordingly TI shall be a third party beneficiary of Simtek's
obligations hereunder with respect to such Confidential Information.
7.8 THIRD PARTY LICENSE TO AMKOR. Simtek acknowledges and agrees that the AMKOR
Base Process is licensed to AMKOR by Third Parties and that AMKOR has no right
to grant any license or rights to Simtek for the AMKOR Base Process.
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SECTION 8. TERM AND TERMINATION
8.1 TERMINATION AND INITIAL TERM. This Agreement shall remain in effect for a
period of seven (7) years from the Effective Date, subject to earlier
termination pursuant to Section 8.3.
8.2 EXTENSION OF TERM. The term of this Agreement may be extended by mutual
agreement of the Parties in writing obtained six (6) months prior to the
expiration of the Agreement. 8.3 Termination for Cause. This Agreement may be
terminated by a Party for cause upon thirty (30) days' written notice upon the
occurrence of any of the following events:
(a) If the other ceases to do business, or otherwise terminates its
business operations; or
(b) If the other breaches any provision of this Agreement and fails to
cure such breach within thirty (30) days of receipt of written notice
describing the breach; or
(c) If the other becomes insolvent or seeks protection under any
bankruptcy, receivership, trust deed, creditors arrangement,
composition or comparable proceeding, or if any such proceeding is
instituted against the other (and such proceeding is not dismissed
within ninety (90) days).
8.4 EFFECTS OF TERMINATION. Sections 3.1 through 3.6, 4.3, 4.4, 7.3 through 7.7,
9.6, 9.8, 9.9 and 10.1 through 10.14 shall survive any termination or expiration
of this Agreement for any reason. Without limiting the foregoing, in the event
of any termination of this Agreement by AMKOR pursuant to Section 8.3, the
license in Section 4.3 shall survive such termination.
SECTION 9. WARRANTIES AND LIMITATIONS
9.1 SIMTEK. Simtek represents and warrants to AMKOR that the Simtek Technical
Information furnished hereunder shall be the most current form licensed or
provided by Simtek to any Third Party. Simtek further represents and warrants
that (a) it has the full power and authority to enter into and fulfill the terms
of this Agreement and to grant the rights granted by Simtek herein; and (b) it
has not entered and will not enter into any agreements or activities that will
or might interfere or conflict with the terms hereof.
9.2 AMKOR. AMKOR represents and warrants to Simtek that the AMKOR Technical
Information furnished hereunder shall be of the same form as that used by AMKOR
in its own Facility. AMKOR further represents and warrants that (a) it has the
full power and authority to enter into and fulfill the terms of this Agreement
and to grant the rights granted by AMKOR herein; and (b) it has not entered and
will not enter into any agreements or activities that will or might interfere or
conflict with the terms hereof.
9.3 AUTHORITY. Each Party represents and warrants that it has the right and
power to enter into this Agreement, to provide their respective Technical
Information and to grant and transfer the respective licenses and rights
hereunder. Each Party represents and warrants that there are no known
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outstanding assignments, grants, licenses, encumbrances, obligations or
agreements of such Party, whether written or oral or implied, inconsistent with
such Party's obligations under this Agreement.
9.4 NO IMPLIED LICENSES. Nothing contained in this Agreement shall be construed
as conferring by implication, estoppel or otherwise, any right or license except
as expressly granted herein.
9.5 U.S. EXPORT ADMINISTRATION RESTRICTIONS. Both Parties shall abide by and
specifically follow the regulations governing the export of technical data as
required by the Export Administration Regulations of the United States
Department of Commerce (Title 15, Section 379.4 of the United States Code of
Federal Regulations), and the applicable regulations of the Department of State.
The Parties acknowledge and agree that AMKOR may deliver all Technical
Information of the Parties to Anam's Facility in Seoul, Republic of Korea.
9.6 INDEMNITY. Simtek agrees to indemnify and hold harmless AMKOR and AMKOR'S
agents and employees from and against all claims, liability, damages, losses or
expenses incurred or suffered as a result of, and will defend or settle at
Simtek's sole expense, any action or other proceeding brought against AMKOR or
its customers based on a claim that the SONOS Process or the Simtek Technical
Information infringes or misappropriates, or when used by AMKOR or its customers
under this Agreement for their intended purpose, will infringe or
misappropriate, the rights of any third party.
9.7 NOTICE OF CLAIMS. If AMKOR presented with, or has actual notice of, an
actual or probable claim or demand against it that is covered by Section 9.7,
then AMKOR shall promptly notify Simtek in writing thereof.
9.8 LIMITATION OF LIABILITY. EXCEPT (A) IN THE EVENT OF ANY BREACH BY EITHER
PARTY OF SECTION 7.3 OR ANY OTHER BREACHES RELATING TO THE OTHER PARTY'S
CONFIDENTIAL INFORMATION, OR (B) SIMTEK'S INDEMNIFICATION OBLIGATIONS PURSUANT
TO SECTION 9.7, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EITHER PARTY
ARISING OUT OF, CONNECTED WITH, OR RESULTING FROM THIS AGREEMENT OR THE DESIGN,
DEVELOPMENT, PROCESSING, OR SALE OF ANY PRODUCT, OR THE FURNISHING OF ANY
SERVICE HEREUNDER, INCLUDING ANY CLAIM, WHETHER IN CONTRACT, TORT (INCLUDING
NEGLIGENCE, WHETHER SOLE OR CONCURRENT) OR OTHERWISE, EXCEED ONE MILLION DOLLARS
($1,000,000). THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF
ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9.9 INDIRECT DAMAGES. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER
PARTY OR ANY OTHER ENTITY FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL OR INDIRECT
DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF LIABILITY, WHETHER OR NOT SUCH PARTY
IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING ANY FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
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SECTION 10. MISCELLANEOUS
10.1 NOTICES. All notices, requests, demands and other communications under this
Agreement or in connection herewith shall be given to or made upon the
respective Parties as follows:
To ATI:
AMKOR Technology, Inc.
0000 Xxxxxxxxxx Xxxxx
Xxxx Xxxxxxx, Xxxxxxxxxxxx 00000
Attention: General Counsel
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
To Anam:
Anam Semiconductor, Inc.
000, Xxxxxx-xxxx
Xxxxx-xx, Xxxxxx
Xxxxxxx-xx, Xxxxx 420-130
Facsimile: 032 683-8104
Attention: Ki Xxx Xxxxx
with a copy to:
Xxxxxx Xxxxxxx Xxxxxxxx & Xxxxxx
000 Xxxx Xxxx Xxxx
Xxxx Xxxx, Xxxxxxxxxx 00000
Facsimile: (000) 000-0000
Attention: Xxxxxx X. Xxxxxxxx
To Simtek:
Simtek Corporation
0000 Xxxxxxxxxx Xxxxx, Xxxxx 000
Xxxxxxxx Xxxxxxx, XX 00000, XXX
Attention: Xx. Xxxxxxx Xxxxxxxx
All notices, requests, demands and other communications given or made in
accordance with the provisions of this Agreement shall be in writing, and shall
be by postage prepaid registered or certified express airmail, or by facsimile
or e-mail confirmed by such mail, and except as provided otherwise shall be
deemed to be given or made when received by the named addressee in the case of
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mail and when dispatched with receipt acknowledgment in the case of e-mail or
facsimile.
10.2 MODIFICATION. Any Party may alter its address as set forth above by written
notice to the other Party hereto. Any Party may waive its right to confirmation
by mail or facsimile or e-mail communications as provided for in Section 10.1.
10.3 ACTS BEYOND CONTROL.
(a) In the event that lawful performance of this Agreement or any part hereof by
a Party hereto shall be rendered impossible by or as a consequence of any law,
or act of government or political subdivision having jurisdiction over such
Party, or act of God or other matter beyond the control of the Parties, such
Party shall not be considered in default of this Agreement by reason of any
resulting failure to perform.
(b) Any delay in or failure by a Party hereto in the performance of any
obligations under this Agreement shall be excused if and to the extent caused by
occurrences beyond such Party's reasonable control; including, but not limited
to, acts of God, strikes or other labor disturbances, war, whether or not
declared, or sabotage.
10.4 ASSIGNMENT. Neither party shall assign its rights and obligations under
this Agreement without the prior written consent of the other Party except to a
successor in ownership of such Party or all or substantially all the assets of
the assigning Party, and in which case, such successor shall expressly assume in
writing the performance of all terms and conditions of this Agreement to be
performed by the assigning Party.
10.5 SEVERABILITY. Should any part or provision of this Agreement be held
unenforceable or in conflict with the law of any jurisdiction, such provision
shall be deemed severed. The validity of the remaining parts or provisions shall
not be affected by such holding, unless such unenforceability substantially
impairs the benefit of the remaining portion of this Agreement.
10.6 WAIVER. No failure or delay on the part of either Party in the exercise of
any right or privilege hereunder shall operate as a waiver thereof, nor shall
any single or partial exercise of any such right or privilege preclude other or
further exercise thereof or of any other right or privilege.
10.7 PUBLICITY. Neither Party shall issue press releases, advertisements,
publicity, public announcements or confirmations of same, concerning this
Agreement without prior written consent of the other Party. Either Party may
release information concerning this Agreement (a) for the purposes of corporate
structuring, financing and/or recruiting new employees, (b) in connection with
the requirements of a public offering or securities filing, and (c) in
connection with a merger or acquisition or proposed merger or acquisition, or
the like.
10.8 CAPTIONS. The captions used in this Agreement are for convenience only and
are not to be used in interpreting the obligations of the Parties under this
Agreement.
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10.9 CHOICE OF LAW. The validity, construction and performance of this Agreement
and the transactions to which it relates shall be governed by the laws of the
Commonwealth of Pennsylvania, without regard to conflict of law principles.
10.10 ARBITRATION. Should any disputes or differences arise from the Agreement,
or in connection with its performance, the Parties shall first attempt to arrive
at an amicable settlement. An attempt at settlement shall be deemed to have
failed when one of the Parties advises the other party in writing to this
effect. Subject to Section 7.5 and the Parties' right to seek equitable relief
for any breach hereof in any court of competent jurisdiction, in the event of
failure of the attempt at settlement, the dispute shall be finally settled under
the commercial rules of arbitration then in effect of the American Arbitration
Association, by three arbitrators appointed in accordance with such rules. Such
arbitration shall be held in Philadelphia, Pennsylvania and the language of
arbitration shall be English. The decision of the arbitrators shall be final and
binding upon the Parties hereto. The arbitrators shall have authority to
determine and assess all expenses of the arbitration against any, or all, of the
Parties thereto.
10.11 ENTIRE AGREEMENT. This Agreement embodies the entire understanding of the
Parties as it relates to the subject matter contained herein and, as such,
supersedes any other understandings between the Parties relating thereto. No
amendment or modification of this Agreement shall be valid or binding upon the
Parties unless signed duly authorized officers of all Parties hereto.
10.12 BINDING EFFECT. This Agreement shall be binding upon and inure to the
benefit of the Parties hereto and their respective successors and assigns,
provided that neither Party shall assign any of its rights or privileges unless
permitted under Section 10.4.
10.13 RELATIONSHIP OF PARTIES. Neither the making of this Agreement nor the
performance of any part of the provisions hereof shall be construed to establish
a partnership or joint venture relationship. The Parties expressly agree that
their relationship shall be that of independent entities contracting at
arms-length with each other.
10.14 EMPLOYEE SOLICITATION. In recognition of the value of the technical
personnel of the respective Parties, each Party agrees not to solicit any
employee of the other Party during the term of the Agreement, and for a period
of three years after any termination or expiration of the Agreement. However,
nothing in this Section 10.14 shall prevent either Party from hiring a former
employee of the other Party who has solicited the hiring Party.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their respective duly authorized officers on the dates indicated below.
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AMKOR TECHNOLOGY, INC. SIMTEK CORPORATION
By: /s/ Xxxx X. Xxxxxx By: /s/ Xxxxxxx Xxxxxxxx
------------------------------------- ---------------------------------------
Name: Xxxx X. Xxxxxx Name: Xxxxxxx Xxxxxxxx
------------------------------------- ---------------------------------------
Title: Executive Vice President,
Corporate Development Title: President and CEO
------------------------------------- ---------------------------------------
Date: Date:
------------------------------------- ---------------------------------------
ANAM SEMICONDUCTOR, INC.
By: /s/ Ki Xxx Xxxxx
----------------------------------
Name: Ki Xxx Xxxxx
Title:
-------------------------------
Date:
--------------------------------
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EXHIBIT A
The following summarizes the development of SONOS-based nonvolatile memory
technology between Simtek and Amkor:
1. Objectives
----------
Activities identified in this document are intended for development
using Amkor's 0.25(mu)m CMOS process as the baseline from which to
derive the production devices defined below.
(d) Nonvolatile static RAM (nvSRAM) products. Minimum array density
of 1 Mbit. Goal of 4 Mbit.
(e) Flash Memory products. Minimum array density goal of 4 Mbit. Goal
of 32 Mbit.
2. Technology
----------
Simtek has designed and manufactured nonvolatile static RAM products
on 1.5um, 1.2um and 0.8um processes using a silicon nitride
nonvolatile element built into the SRAM cell. This project is designed
to install the silicon-oxide-nitride-oxide-semiconductor (SONOS)
process on a 0.25um manufacturing line to support production of
high-density nvSRAM and FLASH products.
3. Product Development.
-------------------
Technology development phase
(a) Amkor will provide the following:
(1) Detailed 0.25um CMOS design rules.
(2) Detailed 0.25um CMOS process specification.
(3) If available for Simtek's use, any existing SRAM cell layout
designed for this process, which may be used as a baseline
for design of our nvSRAM cell.
(4) Process engineering support for the development of the
Integrated Process, including the integration of the SONOS
process.
(5) Any other AMKOR Technical Information necessary for the
Joint Development Project
(b) Simtek will provide the following:
(1) Process and design engineering support for the integration
of the SONOS process and manufacturing of the Simtek
products.
(2) Design engineering to support design of Simtek's family of
products.
(3) Product engineering support to monitor development of the
process, then production monitors for yield enhancement.
(4) Any other Simtek Technical Information necessary for the
Joint Development Project.
(c) Schedule Goals
--------------------------------------------------------------------------------------------------------------------------------
1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24
--------------------------------------------------------------------------------------------------------------------------------
SONOS Process Integration Definition ----
SONOS Process Integration Development -------------
Test Chip Design and Layout ----------
Test Chip Test Program Development -------
First Test Chip Lot ---
First Test Chip Characterization ----
PRELIMINARY DESIGN/ELECTRICAL RULES *
Second Test Chip Lot -------
Second Test Chip Characterization --
FINAL DESIGN/ELECTRICAL RULES *
1MBit nvSRAM Design and Layout ----------------------------
1MBit nvSRAM Test Program Development ----------
First 1MBit nvSRAM Lot -----
First 1MBit nvSRAM Characterization ----
ENGINEERING SAMPLES *
Second 1MBit nvSRAM Lot -----
Second 1MBit nvSRAM Characterization ----
CUSTOMER SAMPLES *
Qualification -------
PRODUCTION PARTS *
Exhibit B
Manufacturing Services Agreement
