EXECUTION DRAFT November 26, 2002
Exhibit 4.36
CONFIDENTIAL TREATMENT REQUESTED: THE PORTIONS OF THIS AGREEMENT MARKED BY X'S
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION.
"SF" PROCESS DEVELOPMENT AND COST SHARING AGREEMENT
BETWEEN
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
EXECUTION DRAFT November 26, 2002
This Agreement is made effective as of November 26, 2002 (hereinafter referred
to as the "Effective Date") by and between International Business Machines
Corporation ("IBM"), incorporated under the laws of the State of New York,
U.S.A. and having an office for the transaction of business at 0000 Xxxxx 00,
Xxxxxxxx Xxxxxxxx, XX 00000, U.S.A., and Chartered Semiconductor Manufacturing
Ltd. ("Chartered"), incorporated under the laws of Singapore and having an
office for the transaction of business at 00 Xxxxxxxxx Xxxxxxxxxx Xxxx X, Xxxxxx
0, Xxxxxxxxx 000000. IBM and Chartered may be individually referred to herein as
a "Party", or collectively as the "Parties."
WHEREAS, IBM has been developing leading edge semiconductor manufacturing
processes and the Parties wish to jointly participate in the continued
development of certain of such process technologies with the goal of achieving
leadership foundry semiconductor manufacturing process capabilities;
WHEREAS, the Parties possess complementary skills and know-how, which the
Parties wish to contribute toward such process development;
WHEREAS, each Party agrees to provide certain personnel and grant the other
Party certain technology licenses in support of such process development and
share the cost of such process development as set forth herein;
WHEREAS, through the use of such complementary skills and know-how the Parties
desire to achieve resource efficiencies and cost savings, and reduce the
technical risk associated with the development of high end semiconductor
processes in order to complete research and development of and put into
production, leading edge high end semiconductor manufacturing processes sooner
than would be possible with either of the Parties acting independently;
NOW THEREFORE, in consideration of the premises and mutual covenants contained
herein, as well as for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows.
SECTION 1 - DEFINITIONS
Unless expressly defined and used with an initial capital letter in this
Agreement, words shall have their normally accepted meanings. The headings
contained in this Agreement or in any exhibit, attachment or appendix hereto are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The word "shall" is mandatory, the word "may"
is permissive, the word "or" is not exclusive, the words "includes" and
"including" are not limiting, and the singular includes the plural. The
following terms shall have the described meanings:
"Advanced Semiconductor Technology Center" or "ASTC" means the IBM 200mm or
300mm wafer process development facility located in the United States used for
conducting the Process Development Projects.
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"Agreement" means the terms and conditions of this "SF" Process Development and
Cost Sharing Agreement together with any exhibits, attachments and appendices
hereto.
"Background Know-How" means methods, techniques, designs, structures, software
and other copyrightable materials, specifications and other information,
know-how, and non-copyrightable materials developed (either solely or jointly
with one or more Third Parties), learned or acquired by a Party outside the
performance of the Process Development Projects (whether before, on or after the
Effective Date) that such Party provides to the other Party for use in a Process
Development Project pursuant to Section 3, or pursuant to the transfer
assistance set forth in Section 3.6, but in the case of such transfer assistance
only as it relates to the installation and qualification of the 300mm 90nm Bulk
CMOS process and 300mm 65nm Bulk CMOS process in each Party's manufacturing
line. Such Background Know-How shall not include Packaging Technology, Mask
Fabrication and Photoresist Technology, Memory, SiGe Technology, SOI
Information, or Chip Designs.
"Bulk CMOS" means CMOS semiconductor manufacturing technology carried out on a
wafer that is not an SOI Wafer.
"Bulk CMOS Integrated Circuit" means an Integrated Circuit fabricated utilizing
a Bulk CMOS manufacturing process.
"Change of Control" shall be deemed to have occurred for a Party if: (a) there
shall be consummated (i) any consolidation or merger of such Party in which such
Party is not the continuing or surviving corporation, or pursuant to which
shares of such Party's common stock would be converted into cash, securities or
other property, other than a merger of the Party in which the holders of such
Party's common stock immediately prior to the merger have substantially the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger, or (ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of substantially all of the
assets of such Party, but only if such sale, lease, exchange or transfer would,
by its nature, include an assignment of the rights or obligations under this
Agreement; or (b) the stockholders of such Party shall approve any plan or
proposal for the liquidation or dissolution of such Party; or (c) any
transaction (such as a merger, tender or exchange offer, open market purchases,
privately negotiated purchases, or otherwise) as a result of which (i) any
person (as such term is used in section 13(d) and 14(d) (2) of the Securities
Exchange Act of 1934 (the "Exchange Act")) shall become the beneficial owner
(within the meaning of Rule 13d-3 under the Exchange Act) of securities
representing more than fifty (50%) of voting securities of such Party having the
voting power of such Party's then outstanding securities ordinarily (and apart
from rights accruing in special circumstances) having the right to vote in the
election of directors or (ii) in the case of Chartered, any person (as such term
is used in section 13(d) and 14(d) (2) of the Exchange Act) that is a person
who, either directly or through its subsidiaries derives more than fifty percent
(50%) of its revenue (as measured as of the end of the most recent fiscal year
of such person) from the manufacture and/or sale of Semiconductor Products
becomes the beneficial owner (within the meaning of Rule 13d-3 under the
Exchange Act) of securities representing more than thirty percent (30%) of
voting
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securities having the voting power of Chartered's then outstanding securities
ordinarily (and apart from rights accruing in special circumstances) having the
right to vote in the election of directors, provided however, that such
transaction would not constitute a Change of Control if Singapore Technologies
Pte Ltd, directly or indirectly continues to hold forty percent (40%) or more of
the securities of Chartered. And further provided that in the case of both (c)
(i) and (c) (ii) the transaction would not constitute a Change of Control if
such person (i) on the Effective Date, was already the beneficial owner of
securities representing more than twenty percent (20%) of the voting power of
such Party, (ii) is an employee benefit plan (or representative of multiple
plans) sponsored by such Party, or (iii) is a financial institution that
acquires and holds such securities as part of an underwriting for the issuance
or sale of such securities.
"Chartered's Fab 7 Facility" means Chartered's 300mm fabrication facility
situated in Chartered's Woodlands campus in Singapore.
"Chartered Co-Project Leader" means the individual appointed by Chartered
pursuant to Section 4.2, below.
"Chartered Transfer Coordinator" means the individual appointed by Chartered as
the Chartered manager of Chartered transfer activities and Representatives
involved with the transfer activities and manufacturing participation set forth
in Exhibit H.
"Chartered Joint Development Partner" means a Third Party xxxxx with whom
Chartered has established a joint development relationship for the development
of Future Technologies.
"Chartered Jointly Owned Facility," means a corporation, company or other entity
where at least forty percent (40%) of whose outstanding shares or securities
(such shares or securities representing the right to vote for the election of
directors or other managing authority) are, now or hereafter, owned or
controlled, directly or indirectly, by Chartered; or, if such entity does not
have outstanding shares or securities, as may be the case in a partnership,
joint venture, unincorporated association, or other entity, at least forty
percent (40%) of whose ownership interest representing the right to (i) make the
decisions for such partnership, joint venture, unincorporated association, or
other entity, or (ii) vote for, designate, or otherwise select members of the
highest governing decision-making body, managing body or authority for such
partnership, joint venture, unincorporated association or other entity, is, now
or hereafter, owned or controlled, directly or indirectly, by Chartered.
Provided, that such entity shall be considered a Chartered Jointly Owned
Facility, and shall be entitled to retain the licenses and other benefits
provided by this Agreement to such Chartered Jointly Owned Facility, only so
long as such ownership or control exists.
"Chartered Qualification and Process Freeze" means the successful completion of
foundry standard stress on a product and/or a product like vehicle with mixed
signal, digital and SRAM elements and with manufacturing process routing
defined, in Chartered's Fab 7 Facility for 300mm Wafer 90nm Bulk CMOS and/or for
300mm Wafer 65nm Bulk CMOS, whichever the case may be, as set forth in Exhibit
H1.
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"Chip Design(s)" means any design of one or more Integrated Circuits and/or
Semiconductor Products, including (by way of example and not limitation) random
access memory (RAM)s, read only memory (ROM)s, microprocessors, application
specific Integrated Circuits (ASICs) and other logic designs, and analog
circuitry; provided, however, that "Chip Designs" shall not include (i)
alignment marks or test structures and associated layout and data used in the
Process Development Projects for process development, (ii) process kerf test
structures, layout, and data of the test chip(s) (including SRAM macro cells) as
well as such test chips themselves used for the development work of the Process
Development Projects unless specifically excluded, or (iii) other product
designs as mutually agreed by the Parties to be used as qualification vehicles
in the Process Development Projects. For the avoidance of doubt, all of (i)
through (iii) above shall be treated as Specific Results to the extent utilized
in a Process Development Project.
"300mm Wafer 90nm Bulk CMOS" means a 90 nm lithography generation Bulk CMOS
logic fabrication process technology for 300mm wafers, with the parameters set
forth in Exhibit A.1, attached hereto.
"300mm Wafer 65nm Bulk CMOS" means a 65 nm lithography generation Bulk CMOS
logic fabrication process technology for 300mm wafers, with the parameters set
forth in Exhibit A.2, attached hereto.
"45nm Bulk CMOS" means a 45 nm lithography generation Bulk CMOS logic
fabrication process for the fabrication of Bulk CMOS Integrated Circuits.
"Designated Invention" means an Invention for which a patent application has
been filed by one or both of the Parties.
"Derivative Processes" means process technologies for semiconductor devices,
which process technologies use, modify or otherwise derive from the Specific
Results or any element or portion thereof.
"Embedded DRAM" or "eDRAM" means a device that either (i) primarily carries out
logic functions, and includes one or more dynamic random access memory (DRAM)
cells embedded within logic circuitry on the same semiconductor substrate, or
(ii) primarily carries out memory functions, and includes one or more DRAM cells
in combination with a static random access memory (SRAM) array on the same
semiconductor substrate (including an array of SRAM cells linked with bit lines,
word lines, sense amplifiers and decoders).
"Foundry Company" means xxxxx.
"Foundry Product" means an Integrated Circuit wherein all the following
conditions are met: (i) the design, or masks and/or mask build data, for such
Integrated Circuit product are provided to the Foundry Company or Pure Play
Foundry, whichever the case may be by a third party; (ii) such Foundry Company
or Pure Play Foundry, whichever the case may be, played no substantial role in
any phase of the design of such product; and (iii) such Foundry Company or Pure
Play Foundry, whichever the case may be is contractually bound to manufacture
such product solely
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for, and to sell such product solely to, such third party or its distributor or
other recipient solely for the benefit of such third party.
"Future Technologies" means the primary CMOS semiconductor logic generations
with ground rules of less than 65nm, including, but not limited to 45nm Bulk
CMOS.
"IBM Project Leader" means the individual appointed by IBM pursuant to Section
4.2, below, to provide day-to-day oversight for the Process Development
Projects.
"IBM Qualification and Process Freeze" means the successful completion of
foundry standard stress on a product and/or a product like vehicle with mixed
signal, digital and SRAM elements and with manufacturing process routing
defined, in the IBM manufacturing line for 300mm Wafer 90nm Bulk CMOS and/or in
IBM's development line for 300mm Wafer 65nm Bulk CMOS, whichever the case may
be, as set forth in Exhibit B.
"IBM Transfer Coordinator" means the individual appointed by IBM as the IBM
coordinator of transfer activities and manufacturing participation described in
Exhibit H.
"Integrated Circuit" means an integral unit formed on a semiconductor substrate
including a plurality of active and/or passive circuit elements formed at least
in part of semiconductor material.
"Invention" means any invention, discovery, design or improvement, conceived or
first actually reduced to practice solely or jointly by one or more
Representatives of one or both of the Parties or their respective contractors
during the Term of this Agreement and in the performance of the Process
Development Projects.
"Lithography" means those aspects of Background Know-How and Specific Results
directed to (a) process technology-dependent ground rules or process
technology-dependent special rules for shapes replication as developed by the
Parties for the generation of photomasks used for development and qualification
of a semiconductor process technology in the Process Development Projects, (b)
resolution enhancement techniques specifically created pursuant to the Process
Development Projects to generate mask build data, (c) such photomasks themselves
and the data files used therefor as are used in the Process Development
Projects, (d) lithography process sequence as utilized in the Process
Development Projects, and (e) mask data generation sequence as utilized in the
Process Development Projects.
"Management Committee" shall have the meaning ascribed to it in Section 4.1.
"Mask Fabrication and Photoresist Technology" means any process, procedure,
Proprietary Tools, Third Party tools, or hardware tool used in the fabrication
of photomasks, as well as the photomasks themselves, and/or the formulation
and/or manufacture of photoresist; provided, however, that "Mask Fabrication and
Photoresist Technology" shall not include Lithography.
"Memory" means Chip Designs and fabrication processes related to read only
memory (ROM), dynamic random access memory (DRAM), programmable ROMs, magnetic
RAM (MRAM),
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ferroelectric RAM, and Embedded DRAM. For the avoidance of doubt, "Memory" shall
not include static RAM (SRAM) used in the Process Development Projects as test
vehicles.
"Module" or "Process Module" means a stand alone sequence of process steps which
is a portion of a CMOS process technology.
"Orientation Sessions" means the two orientation sessions to be held in the ASTC
in January 2003 and April 2003, respectively, covering the topics described in
Exhibit I (including, IBM's work to date on 90 nm 200mm Bulk CMOS).
"Packaging Technology" means any process, procedure, software, or hardware tools
used in the packaging of integrated circuit products into single-chip packages,
multi-chip packages, or any other higher levels of assembly, including but not
limited to IBM's collapsible chip carrier connection ("C4") interconnect
technology; provided, however, that the final on-chip metal and via layers for
redistribution of pads (also known as redistribution layer, or last via (LV), or
top via (TV), or final via (FV)) shall be considered a part of the CMOS
fabrication process, not Packaging Technology.
"Process Development Project(s)" means the 90nm Bulk CMOS and 65nm Bulk CMOS
research and development work conducted jointly by Representatives of the
Parties pursuant to the terms and conditions of this Agreement, as more fully
set forth in Section 3.1, 3.2 and 3.7 below, which the Parties will install as
their baseline Bulk CMOS foundry manufacturing process of record (excluding
customer specific implementations, derivatives and customer confidential
information) in their respective 300mm wafer fabrication facilities.
"Project Leaders" means the IBM Project Leader and the Chartered Co-Project
Leader.
"Proprietary Tools" means application software (in source code form or in object
code form), such as model generation and extraction software, data collection
software and data manipulation/analysis software, that are not commercially
available and are either owned by a Party or under which a Party has the right
to grant royalty-free licenses, and that are used in connection with the Process
Development Projects. For the avoidance of doubt, "Proprietary Tools" shall not
be interpreted as including the data itself to be utilized by such application
software.
"Pure Play Foundry" shall have the meaning ascribed to it in Section 7.10.1.
"Representative(s)" means a Party's employees and employees of a Party's Wholly
Owned Subsidiaries.
"Semiconductor Product" means a component that contains an Integrated Circuit on
a single or multichip module that incorporates a means of connecting those
Integrated Circuits with other electronic elements (active or passive) and/or
means to make external electrical connections to such elements, but which
excludes any means for a user to operate the functions therein (e.g., buttons,
switches, sensors).
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"Silicon-Germanium Technology" or "SiGe Technology" means semiconductor
fabrication processes and design techniques incorporating silicon and germanium
in the MOSFET channel region or bipolar base region.
"Silicon-On-Insulator Wafer" or "SOI Wafer" means a single-crystal silicon wafer
bearing a horizontally-disposed isolating silicon dioxide (SiO(2)) layer, in
turn bearing a single-crystal silicon layer or a polysilicon layer, which is
separated from the underlying silicon by the silicon dioxide layer and in which
one or more active or passive integrated circuit structures are formed.
"SOI Information" means any and all process methods, steps, and structures
created on SOI Wafers and not on Bulk CMOS Integrated Circuits.
"Specific Results" means information and materials, other than i) Proprietary
Tools, ii) Packaging Technology, iii) Mask Fabrication and Photoresist
Technology, iv) Memory, v) SiGe Technology, vi) SOI Information, and vii) Chip
Designs, developed under, and/or acquired, within the scope of the Process
Development Projects by one or both Parties pursuant to the development work of
the Process Development Projects or otherwise developed within the scope of the
transfer assistance set forth in Section 3.6, below, including as follows:
The documentation produced for the Process Development Projects as set
forth in Exhibit G attached hereto ("Documentation");
All Inventions, information, know-how and materials resulting from the
Process Development Projects and transfer assistance set forth in Section
3.6, including but not limited to methods, techniques, unit processes,
process flows, structures in silicon, software and other copyrightable
materials, and specifications for equipment, chemicals, masks and
consumables;
All derivative works or improvements created or developed by or for a Party
solely or jointly as part of the Process Development Projects or the
transfer assistance set forth in Section 3.6 from Background Know-How
provided to the Process Development Project(s) or as part of such transfer
assistance by a Party pursuant to Section 3, below.
For avoidance of doubt, the Parties acknowledge that Specific Results does not
include Background Know-How.
"Subsidiary" means a corporation, company or other entity:
(a) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are, now or hereafter, owned or
controlled, directly or indirectly, by a Party hereto, or
(b) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association,
but more than fifty percent (50%) of whose ownership interest
representing the right to make the decisions for
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such corporation, company or other entity is now or hereafter, owned
or controlled, directly or indirectly, by a Party hereto,
provided that in either case such entity shall be considered a Subsidiary,
and shall be entitled to retain the licenses and other benefits provided by
this Agreement to Subsidiaries, only so long as such ownership or control
exists.
"Technical Coordinators" means the individuals referred to in Section 4.4,
below.
"Term" means the period of time defined in Section 12.1.
"Test Site" means a device or circuit evaluation site on a wafer.
"Third Party" means an entity or entities other than the Parties or their Wholly
Owned Subsidiaries.
"Wholly Owned Subsidiary" shall mean 1) a corporation, company or other entity:
(a) one hundred percent (100%) of whose outstanding shares or securities
(such shares or securities representing the right to vote for the
election of directors or other managing authority) are, now or
hereafter, owned or controlled, directly or indirectly, by a Party; or
(b) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association, or
other entity but one hundred percent of whose ownership interest
representing the right to (i) make the decisions for such corporation,
company or other entity, or (ii) vote for, designate, or otherwise
select members of the highest governing decision making body, managing
body or authority for such partnership, joint venture, unincorporated
association or other entity is, now or hereafter, owned or controlled,
directly or indirectly, by a Party;
provided that in either case such entity shall be considered a Wholly Owned
Subsidiary, and shall be entitled to retain the licenses and other benefits
provided by this Agreement to Wholly Owned Subsidiaries, only so long as
such ownership or control exists; or 2) a corporation, company or other
entity:
(c) at least seventy five percent (75%) of whose outstanding shares or
securities (such shares or securities representing the right to vote
for the election of directors or other managing authority) are, now or
hereafter, owned or controlled, directly or indirectly, by a Party; or
(d) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association, or
other entity but at least seventy five percent (75%) of whose
ownership interest representing the right to (i) make the decisions
for such corporation, company or other entity, or (ii) vote for,
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designate, or otherwise select members of the highest governing
decision making body, managing body or authority for such partnership,
joint venture, unincorporated association or other entity is, now or
hereafter, owned or controlled, directly or indirectly, by a Party
provided, that in either case (c) or (d) above, (i) all of the
remaining such ownership interest is solely owned or controlled,
directly or indirectly, by one or more corporations, companies or
other entities which are purely financial investors who are not
engaged in the design, development, manufacture, marketing or sale of
Semiconductor Products, and (ii) such entity shall be considered a
Wholly Owned Subsidiary, and shall be entitled to retain the licenses
and other benefits provided by this Agreement to Wholly Owned
Subsidiaries, only so long as such ownership or control exists.
SECTION 2 - ASTC
IBM has established the Advanced Semiconductor Technology Center in East
Fishkill, New York. Process Development Projects shall be conducted primarily at
the ASTC. In addition to the ASTC, IBM may utilize other IBM facilities to
conduct elements of the development work associated with the Process Development
Projects.
SECTION 3 - SCOPE OF PROCESS DEVELOPMENT PROJECTS
3.1 The Parties agree to jointly develop 300mm Wafer 90nm Bulk CMOS and 300mm
Wafer 65nm Bulk CMOS semiconductor manufacturing process technologies based
on IBM's "SF" Bulk CMOS technology roadmap set forth as "Strategic
Technology Objectives" in Exhibit A (hereinafter referred to as "Strategic
Technology Objectives"), and in accordance with the schedule set forth in
Exhibit B (hereinafter referred to as "Development Schedule"). The Parties
agree that the initial joint development of 300mm Wafer 90nm Bulk CMOS
shall begin on 200mm wafer development tools. Any modification to such
Strategic Technology Objectives or Development Schedule requires the
written consent of the Management Committee. If the Management Committee
fails to agree, either Party may escalate such failure to agree through the
procedures set forth in Section 18.3. If, after such escalation, the
Parties are still unable to agree, such modification will not be made, and
the Parties will proceed in accordance with such Strategic Technology
Objectives or Development Schedule without such modification or may
initiate the wind down procedure set forth in Section 3.1.2 below. For the
avoidance of doubt, none of the Process Development Projects shall include
the development of i) Proprietary Tools, ii) Packaging Technology, iii)
Mask Fabrication and Photoresist Technology, iv) Memory, v) SiGe
Technology, vi) SOI Information, or vii) Chip Designs.
3.1.1 During xxxxx the Parties agree to discuss the extension of their
joint development relationship to the 45nm Bulk CMOS process (and
other options as determined by the needs of the foundry
marketplace). Either Party may decide not to proceed
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with such discussions and/or extension agreement and any failure to
discuss and/or agree shall not constitute a breach of this
Agreement. If the Parties proceed with discussions and agree to an
extension, such extension shall be set forth in a signed amendment
to this Agreement, or a new agreement as the Parties deem
appropriate. If the Parties do not agree on an extension by xxxxx,
pursuant to this Section 3.1.1, Chartered shall have the right to
develop Future Technologies with a Chartered Joint Development
Partner pursuant to Section 7.11.
3.1.2 Should either Party reasonably determine that the process technology
to be developed under the 300mm Wafer 65nm Bulk CMOS Process
Development Project is no longer meeting the Strategic Technology
Objectives or the Development Schedule, or brings forth empirical
evidence of changes in the competitive marketplace for semiconductor
technology establishing that the 300mm Wafer 65nm Bulk CMOS
Strategic Technology Objectives and/or the 300mm Wafer 65nm Bulk
CMOS Development Schedule are no longer competitive, such Party may
present such problem to the Management Committee for discussion. If
the Management Committee, after the exercise of reasonable efforts
in the conduct of such discussions, fails to reach unanimous
agreement as to a resolution of such Party's concerns then either
Party may refer such concerns to the senior executives named in
Section 18.3, which senior executives shall discuss and meet in
person, if necessary, in order to attempt to resolve such Party's
concerns. If such senior executives are unable to resolve such
Party's concern, the senior executives agree to instruct the
Management Committee to negotiate in good faith a mutually agreeable
reasonable wind down plan, with a goal of doing so within thirty
(30) days (which period of wind down shall not exceed ninety (90)
days and which plan shall include a reduction or cessation in cost
share payments, reduction in or reallocation of some or all of the
staffing, reduction and/or cessation of transfer support set forth
in Exhibit H, and a final set of deliverables to transfer Specific
Results and/or Background Know-How previously undisclosed, if any)
to terminate the development relationship set forth in this
Agreement. The Parties agree that the survival provision set forth
in Section 12.2 shall apply to any such termination. For avoidance
of doubt, such wind down shall not be considered a breach of this
Agreement.
3.2 The Parties agree that Exhibit A also sets forth the current, as of the
Effective Date, technology implementation objectives and parameters for
each Process Development Project. The Parties shall work together to
evaluate the various options available, including individual Process Module
feasibility, integration, characterization and qualification. The goal of
such evaluation is to agree on an integrated process technology that meets
the Strategic Technology Objectives. If the Project Leaders are unable to
agree on a particular Process Module to be developed, or should they
disagree as to continued development of a Process Module that was
previously selected, the Process Module preferred by xxxxx shall be pursued
in the applicable Process Development Project, provided it is consistent
with foundry industry marketplace requirements and the standard baseline
Bulk CMOS process for such fabrication process generation. xxxxx may
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escalate the failure to agree through the procedures set forth in Section
18.3. In the event that a Party proposes a Process Module or replacement
Process Module that does not get selected after escalation, then such Party
shall have the right to proceed with such development outside the
performance of the Process Development Projects.
3.2.1 IBM confirms that as of the Effective Date, for the 300mm Wafer 90nm
Bulk CMOS process all consumables (including, but not limited to
photoresist) are available to the Parties from Third Party
commercial suppliers. For the 300mm Wafer 65nm Bulk CMOS process,
the Parties will strive to utilize consumables (including, but not
limited to, photoresist) in the Process Development Project that
will be available to both Parties from commercial suppliers.
However, if a consumable proposed by IBM is an IBM proprietary
consumable, the IBM Project Leader will notify the Chartered
Co-Project Leader of such proposed selection, specifying the
respects in which the consumable is IBM proprietary. In addition,
within thirty (30) days of such proposed selection IBM will inform
the Third Party supplier of such IBM proprietary consumable that if
such supplier is chosen by IBM, such supplier may provide such
proprietary consumable to Chartered irrespective of any IBM imposed
restriction or proprietary rights that might otherwise exist. If
after speaking with such Third Party supplier Chartered has a good
faith belief that such supplier will not sell the proprietary
consumable to Chartered, then Chartered may escalate the proposed
selection of such IBM proprietary consumable through the process set
forth in Section 18.3 within sixty (60) days of being informed of
such proposed selection by IBM.
3.3 Throughout the Term of this Agreement and during the respective Process
Development Projects IBM shall provide Chartered with access to all
Background Know-How that is used by IBM in the development of and as part
of IBM's foundry baseline 90nm Bulk CMOS and foundry baseline 65nm Bulk
CMOS manufacturing processes for 300mm wafers (excluding customer
confidential information and Derivative Processes). Such Background
Know-How shall include, without limitation, Background Know-How relating to
past or present semiconductor manufacturing processes provided by IBM to
Chartered. Throughout the Term of this Agreement and during the respective
Process Development Projects Chartered shall provide to IBM all Background
Know-How that is relevant to the foundry baseline 90nm Bulk CMOS and
foundry baseline 65nm Bulk CMOS manufacturing processes for 300mm wafers
(excluding customer confidential information and Derivative Processes)
through access to Chartered Representatives who are participating in the
Process Development Projects. To assist with the initial delivery of such
Background Know-How, IBM and Chartered Representatives will participate in
the Orientation Sessions described in Exhibit I. The obligations of this
Section 3.3 will apply to process generation substitutes, if any, for 90nm
Bulk CMOS and 65nm Bulk CMOS manufacturing processes for 300mm wafers as
agreed by the Management Committee (e.g., if the Management Committee
approves the substitution of 70nm Bulk CMOS for 65nm Bulk CMOS, the
obligations of this Section 3.3 will apply to 70nm Bulk CMOS and not to
65nm Bulk CMOS) For purposes of clarification, the Parties
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acknowledge that this obligation as to substitutes does not apply to
intra-generational modifications (i.e., process "shrinks") by either Party.
3.4 For information other than that developed by the Parties in a given Process
Development Project to be considered Background Know-How, it must be either
deliberately provided to the Process Development Projects by the owner of
such information, or be evaluated by the Project Leaders, pursuant to
Section 3.2, for possible use in a Process Development Project. For
avoidance of doubt, all information and materials provided by IBM during
the Orientation Sessions shall be considered Background Know-How and shall
not be subject to the process set forth below in this Section 3.4.
In the event an owning Party provides to the other Party information
outside of that which is required to be provided pursuant to Section 3.3,
above, or inadvertently provides information that is unrelated to the
Process Development Projects, then such Party shall have the right to
withdraw such information by notifying in writing the Project Leader of the
other Party within thirty (30) days after such owning Party's disclosure
that such owning Party is withdrawing such information from use in the
Process Development Projects and all such information in tangible form
associated therewith shall be returned to such owning Party and such
tangible information shall not become Background Know-How. In the event of
such withdrawal, the non-owning Party shall have the right to use any
non-tangible information related to such information retained in the minds
of the non-owning Party's employees pursuant to Section 9.1. Absent such
notice and withdrawal within thirty (30) days, all information deliberately
provided by the owner of such information shall be treated as Background
Know-How notwithstanding the other provisions of this Agreement.
3.4.1 Any issue as to whether information was within the scope of what is
required to be provided pursuant to Section 3.3 shall be resolved by
the Project Leaders. If the Project Leaders cannot agree, such issue
shall be resolved by the Management Committee.
3.4.2 Each Party shall be responsible for instructing its Representatives
on methods of proper introduction of information into the Process
Development Projects, and the consequences under Section 7.13,
below, of information that is inadvertently obtained.
3.5 Each Party shall have access to all contributed or disclosed Background
Know-How and all Specific Results. The Project Leaders will determine the
methods and control procedures for access, which (so long as Chartered
provides a secure server) shall include access to databases as appropriate,
to such Background Know-How and Specific Results.
3.6 Each Party shall be solely responsible for the cost relating to the
transfer of Background Know-How and Specific Results to its own facilities,
provided however that (i) IBM shall provide the assistance specifically set
forth in Exhibit H to Chartered, without additional charge (except that
Chartered shall pay for wafers, mask set(s) and design layouts as set
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forth in such Exhibit H), prior to and during the startup of Chartered's
Fab 7 Facility; and (ii) Chartered may have Chartered Representatives at
the ASTC and IBM's East Fishkill 300mm manufacturing facility for the
purpose of supporting transfer to Chartered's Fab 7 Facility specifically
as set forth in Exhibit H. In addition the Parties acknowledge that the
equipment set to be installed in Chartered's Fab 7 Facility will not be
identical to the equipment set installed in IBM's facilities. IBM shall
provide assistance, of xxxxx in the aggregate, to Chartered's engineers who
are developing process recipes and performing equipment characterization to
enable Chartered Qualification and Process Freeze. Exhibit H sets out a
table comparing the IBM equipment list with Chartered's Fab 7 Facility
equipment list. Further, if Chartered has failed to make its target date
for Chartered Qualification and Process Freeze, as set forth in Exhibit H1,
and Chartered requests assistance from IBM, then, IBM shall provide such
assistance (of xxxxx, in the aggregate) for the baseline foundry 300mm
Wafer 90nm Bulk CMOS process and baseline foundry 300mm Wafer 65nm Bulk
CMOS process) in accordance with the following: IBM shall provide, within
xxxxx of such Chartered request, xxxxx each with expertise in different
elements of the process to Chartered's Fab 7 Facility for xxxxx each. IBM
shall then provide, if requested, within xxxxx of such Chartered request,
xxxxx each with expertise in different elements of the process to
Chartered's Fab 7 Facility for xxxxx each. IBM would agree to provide the
remaining additional assistance xxxxx (described above) based on a time
frame to be mutually agreed. The foregoing assistance (of xxxxx in the
aggregate) shall be based on commercial terms and conditions with
reasonable financial terms, which would be set forth in a services
agreement signed by the Parties. Provided that IBM's obligations set forth
in this Section 3.6 as to the foregoing assistance (of xxxxx) apply only to
those portions of Chartered's baseline foundry 300mm Wafer 90nm Bulk CMOS
process and baseline foundry 300mm Wafer 65nm Bulk CMOS process that are
"copy exact" (acknowledging differences in equipment as set forth in
Exhibit H8) with IBM's baseline foundry 300mm Wafer 90nm Bulk CMOS process
and baseline foundry 300mm Wafer 65nm Bulk CMOS process.
3.7 As part of each Process Development Project, the Project Leaders shall
coordinate the completion of the Documentation for such Process Development
Project and each Party shall have access to all such Documentation. Each
Party shall be solely responsible for obtaining any and all regulatory
approvals as may be required to utilize Specific Results at its facilities,
and shall be solely responsible for the cost of equipment and consumables
as may be required to utilize the Specific Results at its facilities. IBM
hereby confirms that as of the Effective Date, the 200mm 90nm Bulk CMOS
Background Know-How being provided at the Orientation Sessions does not
require a license pursuant to United States export regulations for export
to Chartered's facilities in Singapore.
3.8 Without liability to the other Party for breach hereof other than breach of
Section 6.4, to the extent known by a Party disclosing or providing
information or materials for use in any Process Development Project, prior
to such disclosure, such disclosing Party agrees to promptly notify the
other Party of any limitations on the uses of such information or
materials, whether such use would violate or whether such information or
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materials is protected by any confidentiality, copyright or mask work or
similar right of any Third Party. Upon such notification, the Parties may
agree to accept such information or materials into the Process Development
Project subject to such limitations. Upon the failure to make such
notification, or if any such limitation arises after disclosure by the
disclosing or providing Party, then the Parties shall attempt to work
together to find a mutually agreeable solution. Each Party further agrees
to use reasonable efforts to ensure that it will not design or develop the
Process Development Projects in such a way that requires the use of any
Third Party confidential information or any other material which is not
available to the other Party for its use as provided in this Agreement as
part of the Background Know-How and/or Specific Results. Each Party further
agrees to use reasonable efforts to ensure that it will not disclose to the
other Party any information considered confidential by it or by any Third
Party which information does not relate to the Process Development
Projects.
SECTION 4 - MANAGEMENT AND STAFFING OF THE PROCESS DEVELOPMENT PROJECTS
4.1 The Parties hereby create a Management Committee. The responsibilities of
the Management Committee are set forth in Exhibit D, attached hereto. All
decisions of the Management Committee shall be by mutual consent.
The Management Committee is comprised initially of the following
individuals:
(i) For Chartered: Dr Sun Xxx Xxxxx
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
xxxxx@xxxxxxxxxxxxxx.xxx
Tel: (00) 0000 0000
Fax: (00) 0000 0000
(ii) For IBM: Xx XX Xxxx
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000
xxxxxx@xx.xxx.xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
Either Party may change its member of the Management Committee by written
notice to the other Party. The Management Committee will conduct regular
meetings at least once in each calendar quarter on dates and at locations
determined by the Management Committee. Meetings of the Management
Committee may be held in person, by teleconference or by videoconference.
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4.1.1 The Management Committee shall establish a regular review process,
at least once in each calendar quarter, with the appropriate senior
business executives of each Party of at least the level of Vice
President or other comparable level. Such review shall include
review of an overall progress report to be prepared by the Project
Leaders. The responsibilities of the Management Committee are set
forth in Exhibit D.
4.2 Each Party shall appoint a Project Leader within thirty (30) days after the
Effective Date. It is the intent of the Parties that Project Leaders be
assigned to the Process Development Projects for no less than two (2) year
terms. The IBM Project Leader shall be in charge of the day-to-day
operations of the Process Development Projects with the assistance of the
Chartered Co-Project Leader. A Party may replace its Project Leader, named
below, by giving written notice to the other Party of such replacement. The
responsibilities of the Project Leaders are set forth in Exhibit E.
The Project Leaders shall be:
(i) For Chartered: Dr. Chi-Xxxx Xxx
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
xxxxxx-xxxx@xxxxxxxxxxxxx.xxx
Tel: 00- 0000-0000
Fax: 65 - 0000-0000
(ii) For IBM: Xxxxxxx Xxxx
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000
xxxxx@xx.xxx.xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
4.3 In addition to the Project Leaders, each Party will provide Representatives
to work on the Process Development Projects at the ASTC. Exhibit C,
attached hereto, shows the staffing levels expected for such
Representatives. It is the intent of the Parties that such Representatives
be assigned to the Process Development Projects at the ASTC for no less
than two (2) year terms.
The Parties will provide sufficient technical personnel on the Process
Development Projects with the appropriate skills and experience to
accomplish the Strategic Technology Objectives.
4.4 Each Party shall appoint a Technical Coordinator within thirty (30) days
after the Effective Date. The Technical Coordinators shall be:
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(i) For Chartered: XXX
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
(ii) For IBM: TBD
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000
@xx.xxx.xxx
Tel: (845) 892-
Fax: (845) 892-
The Technical Coordinators shall be responsible for supervising exchanges
of information among the Parties pursuant to Section 7.2, below. A Project
Leader for a Party may replace the Technical Coordinator for such Party,
named above, by giving written notice to the other Party's Project Leader
of such replacement.
4.5 Each Party agrees that its Representatives shall comply in all material
respects with all personnel, human resources, security and safety rules,
procedures and guidelines of the other Party applicable to contractors
resident at or visiting the premises of such other Party or its Subsidiary
while such Representatives are on the other Party's or its Subsidiary's
premises. In particular, each Party's Representatives agree to abide by the
security requirements of the other Party while at the facilities of the
other Party. Each Party shall provide to the other in advance a set of
documents setting forth all such rules, procedures and guidelines,
including any updated versions thereof. IBM's and Chartered's visitation
guidelines are set forth in Exhibit F.
4.6 Each Party shall be responsible for the selection of its Representatives
described in Exhibits C and H, attached hereto. Personnel supplied by each
Party who are Representatives of the supplying Party shall not for any
purpose be considered employees or agents of any other Party. Each Party
shall be responsible for the supervision, direction and control, payment of
salary (including withholding of taxes), travel and living expenses (if
any), worker's compensation insurance, disability benefits and the like of
its own Representatives. Each Party shall provide reasonable assistance to
the other by providing letters of invitation, or the like, if required as
part of the application for necessary visas and work permits.
4.7 If either Party should become aware of the existence of any hazardous
conditions, property, or equipment which are under the control of the other
Party it shall so advise the other Party; however, it shall remain that
notifying Party's responsibility to take all necessary precautions against
injury to persons or damage to property from such hazards, property, or
equipment until corrected by the other Party. Each Party agrees to comply
with the applicable Occupational Safety and Health Act ("OSHA"), applicable
OSHA
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standards, applicable New York safety and health laws and regulations, any
applicable municipal ordinances, and applicable facility safety rules of
which the Party has notice, regarding the Representatives it assigns to the
Process Development Projects at the ASTC, and who are visiting Chartered's
Fab 7 Facility.
4.8 The Parties agree that the Parties and any Subsidiaries shall refrain from
making any payment or gift of any value to any Representatives of the other
Party assigned to the ASTC or visiting Chartered's Fab 7 Facility without
the employing Party's prior written approval. Neither Party (nor any of its
Subsidiaries) may make any representation that might cause a Representative
of the other Party to believe that an employment relationship exists
between such Representative and the other Party.
4.9 Except for acts of gross misconduct or gross negligence by a Party (or its
Representatives or Third Party invitees), neither Party will be liable to
the other Party for any injury (including death) to persons or damage to or
loss of property suffered on or about the ASTC or Chartered's Fab 7
Facility.
4.10 To the extent permitted by law, during the Term of this Agreement, each
Party agrees neither to directly nor indirectly solicit for employment
purposes the Representatives of the other Party engaged in semiconductor
development in IBM's East Fishkill facility or other Representatives
working on the Process Development Projects or assisting in or supporting
the transfer of the 300mm Wafer 90nm and 300mm Wafer 65nm Bulk CMOS
processes to Chartered's Fab 7 Facility, until at least one (1) year has
passed between the date such employee stopped being engaged in such
semiconductor development or such transfer support or assistance, as the
case may be, and the date of solicitation, without the prior written
permission of such other Party. However, the foregoing does not preclude
general (i.e., non-targeted) recruitment advertising. In addition, to the
extent permitted by law, during the Term of this Agreement, each Party
agrees that its units, divisions, line of business or other comparable
organizational structures, involved in the development of semiconductor
process technologies shall not hire Representatives of the other Party
engaged in the Process Development Projects, without the prior written
permission of such other Party.
SECTION 5 - CHARTERED COST SHARING
5.1 Chartered's cost share payments shall be a total of xxxxx for the 300mm
Wafer 90nm Bulk CMOS and 300mm Wafer 65nm Bulk CMOS Process Development
Projects under this Agreement; such payments shall be made as follows
xxxxx:
xxxxx
Chartered's cost share payments shall be made on xxxxx. Chartered agrees to
treat this Agreement as an invoice from IBM for the specified amounts. All
cost share payments are non-refundable once made.
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In the event that there is a delay in the Development Schedule set forth in
Exhibit B, the Management Committee shall discuss in good faith and
mutually agree on a commercially reasonable recovery plan. xxxxx IBM shall
be solely responsible for any additional cost incurred in executing such
commercially reasonable recovery plan.
5.2 Chartered shall be liable for interest on any overdue payment under this
Agreement commencing on the date such payment becomes due at an annual rate
equal to xxxxx. If such interest rate exceeds the maximum legal rate in the
jurisdiction where a claim therefor is being asserted, the interest rate
shall be reduced to such maximum legal rate.
SECTION 6 - INSURANCE, RESPONSIBILITY FOR RESULTS AND WARRANTIES
6.1 Each Party shall use commercially reasonable efforts with regard to and
perform in a workmanlike manner the Process Development Projects. However,
the Parties acknowledge that the results of the development work to be
performed are uncertain and cannot be guaranteed by either Party. The risk
of success or failure of the Process Development Projects shall be shared
by both Parties. If a Party has exerted commercially reasonable efforts in
the performance of its responsibilities under a Process Development
Project, the failure to achieve the Strategic Technology Objectives or
Development Schedule shall not constitute a breach of this Agreement.
6.2 Except as otherwise expressly set forth in Section 6.1 above, all items
furnished by a Party to the Process Development Projects and pursuant to
Section 3.6 will be produced or provided by said Party in the same manner
as it produces or provides such items for its own use and will be furnished
on an "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, including, without
limitation, (i) any warranty that the Specific Results and/or background
know-how will be free of Third Party claims of infringement of patents,
copyrights, TRADE SECRET, or mask work rights and (ii) ANY IMPLIED
WARRANTIES OR TERMS OF MERCHANTABILITY AND FITNESS OR USE FOR A PARTICULAR
PURPOSE.
6.3 During the Term of this Agreement, each Party shall maintain for the
benefit of the other Party, comprehensive general liability insurance of
not less than eight million dollars ($8,000,000) per occurrence which
covers bodily injury (including death) and property damage (including, to
the extent such insurance is reasonably available therefor, environmental
damage), and which applies to any such liability the Party may have under
this Agreement. The foregoing obligation can be met with a combination of
comprehensive liability insurance augmented by umbrella liability
insurance. Purchase and maintenance of such insurance shall in no way be
interpreted as relieving either Party of any of its responsibilities
hereunder, and each Party may carry, at its expense, such additional
insurance amounts and coverage as it deems necessary. In no event shall any
such insurance be cancelled during the Term of this Agreement without prior
written notice by the insured Party's insurance carrier to the other Party.
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6.4 Each Party hereby represents that, as of the Effective Date, to the present
knowledge of the Microelectronics Division Counsel, IP Law (in the case of
IBM) and the Patent Counsel (in the case of Chartered), there are no
written notice of infringement of any copyright, mask work, or trade secret
that have been received from a Third Party that are applicable to the
Background Know-How of IBM and Chartered, respectively, as it exists as of
the Effective Date.
SECTION 7 - INFORMATION TRANSFERS
7.1 Without any liability to the other Party for patent infringement or failure
to notify, each Party agrees to promptly notify the other Party in writing,
of any patents or other intellectual property rights of Third Parties of
which it becomes aware, which, in the sole opinion of said Party, said
Party reasonably believes may relate to the use of Specific Results or
Background Know-How. In such instance, the Parties shall reasonably
cooperate with each other to exchange information related to such potential
Third Party intellectual property issues. However, neither Party shall have
any obligation hereunder to conduct patent searches or studies in relation
to the Process Development Projects prior to notifying the other Party of
any licenses it may have under any particular patent. The Parties recognize
that each of them has patent license arrangements with Third Parties and
that it is the individual responsibility of each Party to secure any rights
under the patents of Third Parties which may be needed to enable it to
manufacture and/or market the product (including products manufactured
using the process technology to be developed under the Process Development
Projects) at such time as it determines in its sole judgement that such
action is required. During the Term of this Agreement, should either Party
receive one or more written claims of patent infringement that provides
"notice" of patent infringement under 35 U.S.C. 287 such that the receiving
Party has a reasonable apprehension of imminent litigation from such
claimant under the Declaratory Judgment Act, or would constitute
appropriate notice for purposes of a claim of willful infringement such
that the receiving Party has a reasonable apprehension of imminent
litigation from such claimant, and should such written claim(s) apply to
Background Know-How from the other Party for which the noticed Party lacks
sufficient technical expertise to support a competent opinion of counsel
for willfulness purposes, the other Party agrees to provide such technical
assistance as may be reasonably required from a technical person
knowledgeable in the subject matter of such Background Know-How to which
such claim(s) pertains, so as to enable the noticed Party to obtain such
competent opinion of counsel. Such assistance xxxxx shall be rendered at
times and locations as reasonably convenient for such technical personnel.
Such support shall be limited to technical matters (i.e., shall not include
legal evaluation of non-infringement alternatives or otherwise offering
opinions on legal matters). Depending on the circumstances the Parties
acknowledge that a joint defense agreement, common interest information
sharing agreement, or other such agreement may be required to provide such
support. Such support shall be provided on an "AS-IS" basis, with no
representation or warranty of any kind, including any warranty as to
accuracy or completeness.
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7.2 Any confidential information disclosed by one Party to another in
performance of the Process Development Projects shall be designated with an
appropriate and conspicuously obvious legend, such as "IBM Confidential" or
"Chartered Confidential", as the case may be, such legends to clearly
indicate to a person viewing or otherwise accessing such information that
it is of a confidential nature to the disclosing Party. Any such disclosure
that is made orally shall be confirmed in writing under a like designation
within thirty (30) days after the date of such disclosure. The Technical
Coordinators shall monitor and keep records of all such disclosures of
confidential information and shall ensure that it is properly marked as
confidential, and record the date of receipt. Specific Results generated
pursuant to the Process Development Projects and any confidential
information that is included in Specific Results shall be clearly
designated by the Technical Coordinators with an appropriate legend, such
as "C/I Confidential". Notwithstanding the foregoing labelling
requirements, Specific Results and Background Know-How are deemed to be
confidential whether or not labelled as such. Further, in the event that a
Representative of either Party obtains information relating to the Process
Development Projects in tangible form which is not designated as
confidential in accordance with this Section 7.2, but which from its nature
appears likely to be confidential, such Representative will notify the
Technical Coordinators who then will decide whether or not such information
can and should be thereafter treated as confidential. The Technical
Coordinators shall either both agree that such information is
non-confidential or have all copies of such information in tangible form
promptly marked with the appropriate legend identifying its
confidentiality.
7.3 Except as otherwise provided in this Agreement, with respect to Specific
Results, Background Know-How and any other confidential information of
either Party which is confidential pursuant to Section 7.2 above, the Party
receiving such information shall use the same efforts to avoid the
unauthorized publication or dissemination to Third Parties of such
information as it employs with respect to its own information which it does
not desire to be published or disseminated. For Specific Results of each
Process Development Project and Background Know-How of each Process
Development Project, the obligations of confidentiality shall terminate
seven (7) years after the scheduled date of IBM Qualification and Process
Freeze for each applicable Process Development Project; in the case of
Proprietary Tools, this obligation of confidentiality shall terminate seven
(7) years after its disclosure by the disclosing Party; and for all other
confidential information this obligation of confidentiality shall terminate
five (5) years after its disclosure by the disclosing Party. This
obligation shall not, however, apply to any information that is:
7.3.1 already in or comes into the possession of the receiving Party or
its Subsidiaries without obligation of confidence;
7.3.2 now, or hereafter becomes, publicly available without breach of this
Agreement;
7.3.3 rightfully received from Third Parties without obligation of
confidence;
7.3.4 independently developed by the receiving Party or its Subsidiaries;
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7.3.5 approved for release by written agreement of the disclosing Party;
or
7.3.6 inherently disclosed in the use, lease, sale or other distribution
of any available product or service or publicly available supporting
documentation therefor by the receiving Party or any of its
Subsidiaries.
7.4 The receiving Party's obligations with respect to Specific Results,
Background Know-How, or any other confidential information of the
disclosing Party as specified in Section 7.3, above, shall not apply to any
disclosure that is:
7.4.1 in response to a valid order of a court or other governmental body
of any country or group of countries or any political subdivision
thereof; provided, however, that the receiving Party shall first
have notified the disclosing Party and made a good faith effort to
obtain a protective order requiring that the information and/or
documents so disclosed be used only for the purposes for which the
order was issued;
7.4.2 otherwise required by law or securities regulations to which the
receiving Party is subject; or
7.4.3 reasonably necessary in order to establish the receiving Party's
rights, provided that such receiving Party shall provide the
disclosing Party with prior written notice, except notice shall not
be required where the receiving Party is attempting to establish
rights in a lawsuit under this Agreement against the disclosing
Party or is filing a patent application.
7.5 Each Party shall have the right to disclose Specific Results and Background
Know-How to any of its Wholly Owned Subsidiaries at any time; provided
however, that such Wholly Owned Subsidiaries shall agree to be bound by
terms consistent with those applicable to said Party under this Section 7
and the survival of same pursuant to Section 12. Further, each Party may
authorize its Wholly Owned Subsidiaries to whom such Party has disclosed
Specific Results or Background Know-How pursuant to this Section 7.5 to
exercise some or all of its rights to disclose Specific Results or
Background Know-How under and in accordance with this Section 7.
7.6 In addition to Wholly Owned Subsidiaries, subject to the remaining
provisions of this Section 7.6, Chartered shall have the right to disclose
to each of Chartered's Jointly Owned Facilities. Chartered may authorize
Chartered Jointly Owned Facilities to whom it has disclosed Specific
Results and Background Know-How pursuant to this Section 7.6 to exercise
some or all of its rights to disclose Specific Results and Background
Know-How under and in accordance with Sections 7.7, 7.8 and 7.9.
xxxxx.
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7.6.4 IBM shall have the following audit rights. IBM shall nominate three
(3) independent auditors, from which Chartered shall select one, to
conduct, within five (5) working days for all Chartered Jointly
Owned Facilities except those described in Section 7.6.5, below, for
which the time period shall be ten (10) working days prior notice to
Chartered and no more frequently than semiannually for all Chartered
Jointly Owned Facilities except those described in Section 7.6.5,
below, for which the frequency shall be no more than once per year
(or, at IBM's option, as frequently as once a quarter should an
audit uncover a material noncompliance), an audit of the Chartered
Jointly Owned Facility(ies) which have received Specific Results
and/or Background Know-How from Chartered to assure compliance with
this Section 7.6. Such auditor shall enter into a confidentiality
agreement with Chartered and/or with IBM (in which case the
agreement would include a provision under which Chartered would be
granted third party beneficiary status (or the equivalent under
whatever law applies to the agreement) with an independent right to
enforce the applicable provisions of such confidentiality agreement
as they pertain to Chartered's confidential information) sufficient
to limit use and disclosure by such auditor solely to determine
Chartered's compliance with its obligations under this Section 7.6
and shall not disclose to IBM any Chartered confidential information
other than that necessary to understand any noncompliance situation.
In the absence of a finding of noncompliance such auditor shall not
be present at such Chartered Jointly Owned Facility for more than
five (5) working days.
7.6.5 In the case of Chartered Jointly Owned Facilities that exist as of
the Effective Date (i.e., Chartered's Fab 5 and Fab 6), information
that would disclose detailed aspects of the Specific Results and
Background Know-How, including but not limited to process recipes,
tool settings, specific process flows, or manufacturing process
specifications, shall only be disclosed to those Chartered employees
and employees of such Chartered Jointly Owned Facility (including
those who may have been employees of one of the other owners) that
in Chartered's opinion and sole discretion have a need to know for
purposes of carrying out their duties in such Chartered Jointly
Owned Facility. The foregoing information shall not be transferred
to other owners(s) of such Chartered Jointly Owned Facilities,
employees of such other owner(s) (except as set forth in the
following sentence), or any other Third Party. Without limiting the
foregoing, the Parties agree that incidental access to general
aspects of Specific Results and Background Know-How (e.g. as part of
normal operational briefings) by employees of such other owner(s)
that are otherwise resident at or assigned to such Chartered Jointly
Owned Facility shall not be considered a breach of this Section
7.6.5.
7.6.6 In the case of Chartered Jointly Owned Facilities that are
established after the Effective Date (including but not limited to
Chartered's Fab 7 Facility if it becomes a Chartered Jointly Owned
Facility), the following shall apply:
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7.6.6.1 Other than Chartered, xxxxx (however, Chartered may add xxxxx
with the prior written consent of IBM, which consent shall
not be unreasonably withheld) (none of which are xxxxx, as
defined below) may be co-owners with Chartered in Chartered's
Fab 7 Facility and one other Chartered fabrication facility
established after the Effective Date.
(a) Provided, however, that the foregoing restrictions
shall apply only if employees of a xxxxx are present and have
access to or are exposed to any portion of Specific Results
or Background Know-How (except as otherwise permitted
pursuant to Sections 7.7, 7.8 and 7.9) at such Chartered
Jointly Owned Facility.
(b) For purpose of this Section 7.6.6, xxxxx means a
Third Party who has a xxxxx percent or greater ownership
interest or control, directly or indirectly, of xxxxx;
provided, however, that xxxxx does not include xxxxx, and the
restrictions set forth in Sections 7.6.6.1, 7.6.6.2 and
7.6.6.4 shall not apply to any such parties.
7.6.6.2 Chartered agrees that the access or exposure provided to the
xxxxx employees described in Section 7.6.6.1 (a), above,
shall be limited to that necessary, in Chartered's reasonable
opinion in order to carry out their responsibilities in such
Chartered Jointly Owned Facility. Such employees of xxxxx
shall have no right to take any portions of the Specific
Results or Background Know-How (other than residuals as
defined in Section 9.1, which shall still be considered
confidential and subject to Section 7) outside the Chartered
Jointly Owned Facility. In the event that such employees are
present and regardless of the type and amount of such access
by such employees as described in Section 7.6.6.1(a), such
Chartered Jointly Owned Facility shall pay a royalty of
xxxxx. Such royalty shall be paid as follows:
(a) such royalty shall be due and payable, as set forth
in Section 7.6.6.2 (c) below, upon shipment to the xxxxx for
all production wafers fabricated within xxxxx from the date
of the first production shipment with purchase order
(excluding shipment of prototypes and design evaluation
hardware) of wafers to the xxxxx; and
(b) if any 300mm Wafer 65nm Bulk CMOS Specific Results
are installed in a Chartered Jointly Owned Facility then such
royalty shall apply for xxxxx from the date of first
production shipment of any 65nm wafers;
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EXECUTION DRAFT November 26, 2002
(c) all such royalties payable to IBM shall be payable
directly from such Chartered Jointly Owned Facility within
thirty (30) days after the end of each calendar quarter to
the account set forth in Section 13.1.1. In addition,
Chartered shall submit to IBM a report setting forth the
quantity of wafers sold to the xxxxx and total net selling
price for the previous quarter. Such report shall be
submitted within thirty (30) days after the end of each
calendar quarter to the Director of Licensing at the address
set forth in Section 13.1.1, whether or not any royalty is
due for such quarter.
Should a xxxxx wish to receive (before such time as Chartered
has the right to disclose directly to such xxxxx pursuant to
Section 7.12 or other provisions of this Agreement) the 300mm
Wafer 90nm Bulk CMOS or 300mm Wafer 65nm Bulk CMOS Specific
Results and Background Know-How, other than as set forth
above, it may request a license to do so from IBM. Should IBM
grant such a license to one of the xxxxx set forth in Section
7.6.6.1 above (at any time before Chartered has the right to
do so directly pursuant to Section 7.12 or the other
provisions of this Agreement), which xxxxx was referred to
IBM by Chartered, IBM agrees to xxxxx the license fee and
royalty payments from such license with Chartered and
Chartered's share of such license fee and royalty payments
shall be paid directly to Chartered by the licensee;
provided, however, that such obligation to share such fees
and royalties shall not apply to (a) any amounts for related
services such as technology transfer, support, and
maintenance, or any amounts for other arrangements such as
revenue from the sales of wafers; (b) any license or other
arrangement with such xxxxx entered into prior to the date it
became an owner of such Chartered Jointly Owned facility, or
any grant of license or other arrangement that does not
include a license grant to the xxxxx for Specific Results and
Background Know-How; or (c) any patent cross-license
agreement between IBM and the xxxxx. In addition, IBM shall
include a provision in the license agreement requiring the
licensee to submit to Chartered a report setting forth the
fees and royalties for the previous quarter and the method of
calculation therefor. Such report shall be submitted within
thirty (30) days after the end of each calendar quarter to
the person designated and at the address set forth in Section
13.1.2, whether or not any fees or royalties are due for such
quarter.
7.6.6.3 Other than as set forth in Section 7.6.6.2, information that
would disclose detailed aspects of the Specific Results and
Background Know-How, including but not limited to process
recipes, tool settings, specific process flows, or
manufacturing process specifications, shall only be disclosed
to those Chartered employees and employees of such Chartered
Jointly Owned Facility (including those who may have been
employees of one of the other owners) that in Chartered's
opinion and sole discretion have a need to know for purposes
of carrying out their duties in such Chartered
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Jointly Owned Facility. The foregoing information shall not
be transferred to other owners(s) of such Chartered Jointly
Owned Facilities, employees of such other owner(s) (except
as set forth in the following sentence), or any other Third
Party. Without limiting the foregoing, the Parties agree
that incidental access to general aspects of Specific
Results and Background Know-How (e.g. as part of normal
operational briefings) by employees of such other owner(s)
that are otherwise resident at or assigned to such
Chartered Jointly Owned Facility shall not be considered a
breach of this Section 7.6.6.3.
7.6.6.4 Chartered shall secure a written agreement with such xxxxx
that are co-owners pursuant to Section 7.6.6.1, by which
the other owner agrees that it will abide by the applicable
provisions of this Section 7.6 xxxxx.
7.6.7 Should a Chartered Jointly Owned Facility cease to retain the
licenses and other benefits provided by this Agreement for any
reason, including by virtue of a) a reduction in the ownership
percentage of the owning Party or b) a failure to abide by the
provisions of this Section 7.6, such entity shall retain such
licenses notwithstanding such license cessation for a period of time
as may be required to enable such entity to fulfill any purchase
orders or other legally binding commitments existing as of the date
of such license cessation, but such period of time shall not exceed
xxxxx. As soon as reasonably practicable after such ownership
change, such entity shall indicate in its web sites and other
marketing communications channels that it shall no longer offer
products made utilizing the rights licensed hereunder. After the
date of such license cessation, such entity will not (unless
otherwise authorized by IBM) enter into any new supply or other
commitments that would require the exercise of rights granted to it
by IBM under this Section 7.6.
7.7 Chartered shall have the right (in addition to its other rights under this
Section 7) to disclose those aspects of Specific Results and/or Background
Know-How to contractors, suppliers, and consultants as may be reasonably
necessary, solely for the purpose of enabling such Third Parties to assist
Chartered in exercising its rights granted under this Agreement. By way of
example and not limitation, examples of the general types of information
the Parties agree are "reasonably necessary" for disclosure to such
contractors, suppliers, and consultants are as follows:
7.7.1 specifications for masks, materials, chemicals, consumables and/or
equipment, to contractors or suppliers;
7.7.2 process information as required to have equipment maintained, to
tool vendors; and
7.7.3 equipment lists and simple process flow information (excluding
detailed process flow information or detailed process
specifications), as necessary in order to enable installation of
Specific Results and/or Background Know-How.
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Such disclosures cannot be made without a written agreement between
Chartered and the recipient Third Party that, at a minimum, shall have a
term of confidentiality consistent with that set forth herein and that
limits such recipient's use of such information in accordance with terms
and conditions consistent with those set forth herein.
7.8 Chartered shall have the right (in addition to its other rights under this
Section 7) to disclose those aspects of Specific Results and/or Background
Know-How, to customers, design service providers, electronic design and
automation (EDA) vendors, and providers of circuit designs or libraries
(such as providers of cores and other IP blocks) as may be reasonably
necessary, solely for the purpose of enabling such Third Parties to assist
Chartered in exercising its rights under this Agreement. By way of example
and not limitation, examples of the general types of information the
Parties agree are "reasonably necessary" for disclosure to such customers,
design service providers, electronic design and automation (EDA) vendors,
and circuit design providers are as follows:
7.8.1 Process roadmap and development schedule for Process Development
Projects;
7.8.2 Time schedule for development of device model library, and SPICE
parameters;
7.8.3 Design rules for each Process Development Project; and
7.8.4 Simplified process flow information (indicative of rough number of
process and mask steps and excluding detailed process flow
information and detailed process specifications).
In addition, Chartered may disclose and sublicense (in addition to its
other rights under this Section 7) to EDA vendors and circuit design or
library providers information of the type set forth in subsections 7.8.1
through 7.8.4 where such disclosure and sublicense will directly or
indirectly enable or benefit Chartered's foundry business in connection
with the manufacture and sale of wafers, acknowledging that such Third
Parties may license for their own benefit the resultant EDA software and/or
cores or IP blocks to parties other than Chartered. Such disclosures cannot
be made without a written agreement between Chartered and the recipient
Third Party that, at a minimum, shall have a term of confidentiality
consistent with that set forth herein and that limits such recipient's use
of such information in accordance with terms and conditions consistent with
those set forth herein.
7.9 Chartered shall have the right (in addition to its other rights under this
Section 7) to disclose such aspects of Specific Results and/or Background
Know-How, to its customers as may be reasonably necessary, solely for the
purpose of enabling Chartered to develop a Derivative Process for the
manufacture of Semiconductor Products solely for such customer and to
manufacture Semiconductor Products for such customer. The resultant
Derivative Process may be used by Chartered to manufacture Semiconductor
Products for future customers, but such future customers will not get any
access to any of the Specific Results and/or Background Know-How, except as
otherwise set forth in this Section 7.
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By way of example and not limitation, examples of the general types of
information the Parties agree are "reasonably necessary" for disclosure to
such customers for such purposes are as set forth in Section 7.8.
Such disclosures cannot be made without a written agreement between
Chartered and the recipient Third Party that, at a minimum, shall have a
term of confidentiality consistent with that set forth herein and that
limits such recipient's use of such information in accordance with terms
and conditions consistent with those set forth herein.
7.10 Subject to Section 7.10.1 below, IBM shall have the right to disclose
Specific Results and Background Know-How to any Subsidiary or any Third
Party, at any time and for any purpose, and such recipients shall have the
right to disclose Specific Results and Background Know-How to others,
provided that such disclosures shall be subject to appropriate
confidentiality terms that, at a minimum, shall have a term of
confidentiality consistent with that set forth herein and that limit such
recipient's use of such information in accordance with terms and conditions
consistent with those set forth herein.
7.10.1 Notwithstanding the foregoing, during the period xxxxx (with
respect to each Process Development Project, the "Restricted
Period"), if IBM enters into an agreement licensing 65nm Bulk CMOS
process technology (or a substantially equivalent 300mm 65nm Bulk
CMOS process technology) to an entity other than xxxxx, and such
agreement enables xxxxx to sell 65nm 300mm Integrated Circuits or
Semiconductor Products during the Restricted Period, to any party
other than IBM, IBM agrees that it shall xxxxx which shall be
shared with Chartered as follows: Such xxxxx shall remit to
Chartered directly xxxxx IBM would otherwise receive from xxxxx for
such license grant (but no less than xxxxx; provided, however, that
such obligation to share such fees shall not apply to (a) any
amounts for related services such as technology transfer, support,
and maintenance; (b) any license or other arrangement with xxxxx
entered into prior to the Effective Date; or to (c) any patent
cross-license agreement between IBM and xxxxx.
7.10.2 In addition, except as set forth in Section 7.10.3, during the
Restricted Period only, IBM may not license the 300mm Wafer 90nm
Bulk CMOS process technology (or a substantially equivalent 300mm
90nm Bulk CMOS process technology) and/or the 300mm Wafer 65nm Bulk
CMOS process technology (or a substantially equivalent 300mm 65nm
Bulk CMOS process technology) to xxxxx; and, except as set forth in
Section 7.10.3, during the Restricted Period only, IBM may not
license the 300mm Wafer 90nm Bulk CMOS process technology (or a
substantially equivalent 300mm 90nm Bulk CMOS process technology)
to xxxxx.
7.10.3 During the Restricted Period with respect to the 300mm 90nm Bulk
CMOS process technology only, if IBM exercises its have made rights
with respect to xxxxx, the Restricted Period during which the
restrictions in Section 7.10.2 apply shall be extended to a total
of xxxxx, but only as it applies to a license grant to the xxxxx to
whom IBM provided such have made rights. During the Restricted
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Period with respect to the 300mm 65nm Bulk CMOS process technology IBM may
exercise its have made rights to xxxxx.
7.11 If the Parties do not enter into an agreement by xxxxx to jointly develop a
Future Technology pursuant to the extension discussions and/or agreement as
described in Section 3.1.1, Chartered shall have the right (in addition to
its other rights under this Section 7) to disclose Specific Results and/or
Background Know-How, to Chartered Joint Development Partners for the
purpose of jointly developing Future Technologies, under the following
conditions:
(a) xxxxx
(b) the joint development relationship with the Chartered Joint
Development Partner(s) must be set forth in a written agreement that
includes
(i) xxxxx;
(ii) xxxxx;
(iii) a period of confidentiality consistent with that set forth
herein; and
(iv) xxxxx
7.12 Chartered shall have the right (in addition to its other rights under this
Section 7) to disclose the Specific Results and Background Know-How, as
part of a license of substantially the entirety of Chartered's 300mm 90nm
Bulk CMOS process technology to any Third Party, for any purpose, xxxxx.
Chartered shall have the right to disclose the Specific Results and
Background Know-How as part of a license of substantially the entirety of
Chartered's 300mm 65nm Bulk CMOS process technology that includes Specific
Results and Background Know-How, to any Third Party, for any purpose,
xxxxx. Such disclosures cannot be made without a written agreement between
such Third Party and Chartered that, at a minimum, shall have a term of
confidentiality consistent with that set forth in this Agreement.
7.13 With respect to information that does not relate to the Process Development
Projects and which is considered confidential by either Party, it is not
the intention of any Party to disclose to or obtain from another Party any
such information. In particular, the Parties acknowledge that IBM has other
development projects and relationships being conducted in the ASTC
facility, and the Parties shall take reasonable precautions to limit the
disclosure and receipt of information unrelated to Process Development
Projects. In the event that a Representative of a Party inadvertently
obtains any such information of the other Party that is designated as
confidential or which should from its nature be understood to be
confidential, the Technical Coordinator of the owning Party shall be
informed, and any such information in tangible form shall promptly be
returned to such owning Party. Nothing in this Agreement shall convey any
right to said Party to use said tangible information for any purpose.
However, any non-tangible information related to
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said information which is retained in the minds of the Party's employees
will be treated pursuant to Section 9.1.
SECTION 8 - LICENSES TO BACKGROUND KNOW-HOW
8.1 IBM hereby grants to Chartered, under its trade secret, know-how,
copyright, and mask work rights, xxxxx (except as set forth in Section 12.5
of this Agreement), license to use Background Know-How for the purpose of
researching, developing, engineering, manufacturing, using, operating,
marketing, selling, servicing and otherwise disposing of Integrated
Circuits and/or Semiconductor Products, including researching, developing,
engineering, manufacturing, operating, servicing and otherwise using
process technologies for semiconductor devices, and such license shall
include the right to make derivatives of such information (including
Derivative Processes and Future Technologies, including with Third Parties
pursuant to Section 3.1.1) for such uses. In the case of copyrightable
materials, such license includes the right to reproduce, create derivative
works of, distribute, use, execute, and display and perform (publicly and
otherwise) such copyrightable materials to the extent consistent with the
provisions of Section 7. In the case of mask work rights, such license
includes the right to use any process-related mask design information
provided to a Process Development Project (e.g. kerf test structures) and
create derivative works thereof. Chartered shall have the right to
sublicense its rights and shall have the right to have Third Parties
exercise the licenses granted herein on behalf of Chartered under this
Section 8.1, but such sublicensing is permitted only to the extent such
sublicensing is consistent with Section 7. For the avoidance of doubt,
Chartered shall have the same rights and obligations in and to Derivative
Processes and Future Technologies as it does for Specific Results and
Background Know-How hereunder.
8.2 Chartered hereby grants to IBM, under its trade secret, know-how,
copyright, and mask work rights, xxxxx (except as set forth in Section 12.5
of this Agreement), license to use such Background Know-How for the purpose
of researching, developing, engineering, manufacturing, using, operating,
marketing, selling, servicing and otherwise disposing of Integrated
Circuits and/or Semiconductor Products, including researching, developing,
engineering, manufacturing, operating, servicing and otherwise using
process technologies for semiconductor devices and such license shall
include the right to make derivatives of such information (including
Derivative Processes and Future Technologies) for such uses. In the case of
copyrightable materials, such license includes the right to reproduce,
create derivative works of, distribute, use, execute, and display and
perform (publicly and otherwise) such copyrightable materials to the extent
consistent with the provisions of Section 7. In the case of mask work
rights, such license includes the right to use any process-related mask
design information provided to a Process Development Project (e.g. kerf
test structures) and create derivative works thereof. IBM shall have the
rights to sublicense its rights and shall have the right to have Third
Parties exercise the licenses granted herein on behalf of IBM under this
Section 8.1, but such sublicensing is permitted only to the extent such
sublicensing is consistent with Section 7.
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8.3 Each Party agrees to not unreasonably withhold the granting, upon request
by the other Party or by a recipient to whom disclosure has been made
pursuant to Section 7, of a non-exclusive license under such Party's
patents, under reasonable and non-discriminatory terms and conditions, to
the extent necessary for such other Party or such recipient to utilize the
disclosed information for the purposes set forth in this Agreement.
8.4 No license or other right is granted herein by either Party to the other
Party, directly or indirectly, by implication, estoppel or otherwise, with
respect to any trade secrets, know-how, copyrights, mask works, patents,
patent applications, utility models, or design patents except as expressly
set forth in this Agreement, and no such license or other right shall arise
from the consummation of this Agreement or from any acts, statements or
dealings leading to such consummation. The Parties expressly understand and
acknowledge that any patent license rights that may be required to carry
out the licenses set forth in this Agreement are set forth in separate
patent cross-license agreements between them.
SECTION 9 - LICENSE TO RESIDUALS AND PROPRIETARY TOOLS
9.1 Each Party shall be free to use and disclose the residuals of Specific
Results, other Party's Background Know-How, and Proprietary Tools, if any,
and other confidential information received pursuant to Section 7.2, above,
for any purpose, including use in the development, manufacture, marketing,
and maintenance of any products and services. The term "residuals" means
that information in non-tangible form that may be mentally retained by
those Representatives of a Party who have had access to Specific Results,
Background Know-How or Proprietary Tools, if any, of the other Party,
pursuant to this Agreement. For the avoidance of doubt, residuals includes
solely those general aspects of Specific Results, Background Know-How, or
Proprietary Tools that become part of the knowledge base of such
Representatives, and this Section 9.1 shall not be interpreted as
permitting such Representatives to disclose specific aspects of such
information other than as set forth in Sections 7 and 8 of this Agreement.
The Parties agree that the receipt of Specific Results, the Background
Know-How, or the Proprietary Tools, if any, of the other Party shall not
create any obligation in any way limiting or restricting the assignment
and/or reassignment of a Party's Representatives within that Party and its
Wholly Owned Subsidiaries or in the case of Chartered, to any Chartered
Jointly Owned Facilities. For the avoidance of doubt, the foregoing
residuals grant shall also apply to (i) employees of Chartered Jointly
Owned Facilities, and (ii) employees of other owners of such Chartered
Jointly Owned Facilities; provided, however, that in the case of such
employees of other owners of such Chartered Jointly Owned Facilities,
disclosure of residuals shall be subject to Section 7.
9.2 Each Party grants to the other Party under the Proprietary Tools provided
by that Party for use in the Process Development Projects, xxxxx license to
use, execute, display, and perform such Proprietary Tools in IBM's
Microelectronics Division for the purpose of the Process Development
Projects. Any Proprietary Tools that are introduced into IBM's
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Microelectronics Division for the purpose of the Process Development
Projects may not be transferred from IBM's Microelectronics Division or
used by a Party outside IBM's Microelectronics Division without the express
written consent of the Party introducing the Proprietary Tool(s). In the
case of the 300mm 90nm Process Development Project as of the Effective
Date, IBM confirms that there are commercially available alternatives for
all Proprietary Tools in use by IBM. In the case of the 300mm 65nm Process
Development Project, the Parties will use commercially reasonable efforts
to use Proprietary Tools for which there are commercially available
alternatives. If, nonetheless, a Party uses (in connection with the Process
Development Projects) Proprietary Tools that are not available from another
source or for which there is no reasonable substitute that is commercially
available, such Party will provide, to the extent it has the right to do
so, such Proprietary Tools (together with documentation, if any, that
exists as of the date of such license grant) to the other Party. To the
extent it has the right to do so, and on terms and conditions (which shall
include reasonable fees such as those for maintenance, support and porting,
if any) to be negotiated, such Party would grant xxxxx license to the other
Party to use, execute, display and perform such Proprietary Tools, inside
or outside the Process Development Projects in furtherance of completion of
Chartered Qualification and Process Freeze activities, including such
activities in Chartered's Fab 7 Facility. For any Proprietary Tool, IBM
shall provide commercially reasonable assistance to Chartered in
identifying a commercially available substitute.
SECTION 10 - OWNERSHIP OF SPECIFIC RESULTS
10.1 Except with respect to patent rights in and to Designated Inventions as set
forth in Section 11, Specific Results (whether developed solely by one
Party or jointly by both Parties) shall be the property of both Parties,
which shall own the mask work, copyright, trade secret, know-how and other
intellectual property rights therein jointly and equally, without any duty
of accounting to one another or obligation to obtain the consent of one
another for the exploitation thereof or granting of licenses (including the
right of licensees to grant sublicenses) with respect thereto consistent
with Section 7. Moreover, for the avoidance of doubt, this Agreement shall
constitute written consent of such joint owners for the disclosing Party to
make the disclosures set forth in Section 7, to the extent such joint
consent is required in a given jurisdiction; provided, however, that such
assent is subject to the terms and conditions of this Agreement. Before
applying to register or record in any country any of the rights or material
to which this Section 10 relates, the Parties shall hold consultations and
agree on whether this is appropriate and, if so, which of them shall make
such application and in which countries. To the extent required to perfect
the Parties' joint ownership rights, each Party hereby agrees to assign to
the other Party an equal, undivided ownership of all right, title and
interest (including, without limitation, all intellectual property rights)
in and to all Specific Results other than patent rights in and to
Designated Inventions.
10.2 Notwithstanding the joint ownership by the Parties of all Specific Results,
disclosures of Specific Results shall be subject to Section 7.
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SECTION 11 - INVENTIONS
11.1 Any and all patent rights in and to each Designated Invention made solely
by one Party hereto, including title to all patent applications filed
thereon and all patents issued thereon, shall be solely the property of the
inventing Party, subject to the licenses set forth in Section 11.3. For the
avoidance of doubt, the term "patent rights" includes all patent-related
rights in patent applications, and any and all utility models, design
patents, reissues, reexaminations, and other patent grants therefrom, as
they may exist throughout the world. Furthermore, for the avoidance of
doubt such sole ownership in and to such patent rights shall not be
interpreted as applying to the copyrights, trade secrets, mask works, and
other non-patent intellectual property rights in and to such Designated
Inventions, which shall remain jointly owned pursuant to Section 10.
Notwithstanding such joint ownership in such non-patent rights, the other
owner of such non-patent rights hereby grants its irrevocable assent to the
owner of such patent rights to solely control the content, filing,
prosecution, and issuance of any and all patent rights in and to such
Designated Inventions. Moreover, to the extent required in a given country
in which such patent rights are applied for, the other Party hereby agrees
to execute such assignments and other documents as may be required to
memorialize the filing Party's sole ownership of such patent rights.
11.2 Designated Inventions made jointly by one or more Representatives or
contractors of one Party with one or more Representatives or contractors of
any other Party, and title to all patent applications filed thereon and all
patents issued thereon, shall be jointly owned. Each Party shall have the
right to grant licenses (including the right of any licensee to grant
sublicenses) to their Subsidiaries and/or to Third Parties under any patent
issued on such a joint Designated Invention without compensation to the
Party, which hereby gives any necessary consent for granting such licenses
as may be required by the law of any country. All expenses, other than
internal patent department expenses of the Parties, incurred in obtaining
and maintaining such patents shall be equally shared by the Parties (except
as provided hereinafter). Prior to filing any patent application in respect
of any such joint Designated Inventions, the Parties shall hold
consultations and agree on whether this is appropriate and, if so, which of
them shall file and prosecute such application and in which countries
corresponding applications shall be filed and by whom. The Parties agree
that they shall file (and share the costs in preparing and filing) all
joint Designated Inventions in both the United States and Singapore. All
subsequent costs shall be handled pursuant to the following: With respect
to any joint Designated Invention, where one Party elects not to seek or
maintain such protection thereon in any particular country or not to share
equally in the expenses thereof, the other Party shall have the right to
seek or maintain such protection in said country at its or their own
expense and shall have full control over the prosecution and maintenance
thereof even though title to any patent issued thereon shall be joint.
11.3 With respect to patents issued on said Designated Inventions, the license
granted by the owning Party to the other Party is as set forth in the
patent license agreement ("License
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Agreement" number LQ14208) between the Parties, effective January 1, 2001,
as amended.
11.4 Each Party shall give the other Party all reasonable assistance in
connection with the preparation or prosecution of any patent application
filed by said other Party and shall cause to be executed all assignments
and other instruments and documents as said other Party may consider
necessary or appropriate to carry out the intent of this Section 11.
11.5 Nothing in this Agreement shall affect any patent license agreements
between the Parties currently existing.
11.6 The Project Leaders shall establish a Joint Patent Review Committee
comprising members from each Party, which shall establish a procedure for
reviewing joint Invention disclosures in order to determine which joint
Inventions should be filed as patent applications.
SECTION 12 - TERM AND TERMINATION
12.1 This Agreement shall be in effect from the Effective Date and, unless
previously terminated as hereinafter set forth and shall end on xxxxx,
unless otherwise extended by mutual agreement of the Parties as a result of
a change to the Development Schedule, as defined in Section 3.1, above.
12.2 At expiration or termination (except as set forth in Section 12.5, below)
of this Agreement, Sections 1; 3.8, 4.9; 6; 7.1, 7.3-7.12 inclusive; 8; 9;
10; 11; 12; 13; 15; 16; 17 and 18 shall survive and continue after the date
of such expiration and shall bind the Parties and their legal
representatives, successors and assigns. The Parties agree that failure to
list any Sections as surviving does not prejudice either Party's remedies
with respect thereto. In addition, to the extent not fulfilled prior to the
date of expiration, the obligation to enter into a service agreement to
provide xxxxx assistance as set forth in Section 3.6, above, shall survive
for a period of xxxxx after such expiration date and to the extent not
fulfilled prior to the date of expiration, IBM's obligation to provide the
assistance set forth in Exhibit H4.2 shall survive for a period of xxxxx
after such expiration date.
12.3 Either Party shall have the right to immediately terminate this Agreement
by giving written notice of termination to the other Party if other Party
1) permanently ceases doing business; 2) is adjudged bankrupt or insolvent
or files a petition for bankruptcy; 3) goes into liquidation; 4) has
anything analogous to any of the foregoing occur under the laws of
Singapore; or 5) undergoes a Change of Control.
12.4 If either Party to this Agreement fails to perform or violates any material
obligation of this Agreement, then, upon thirty (30) days written notice to
the breaching Party specifying such failure or violation (the "Default
Notice"), the non-breaching Party may terminate this Agreement, without
liability, unless:
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The failure or violation specified in the Default Notice has been cured
within a thirty (30) day period; or
The failure or violation reasonably requires more than thirty (30) days to
correct (specifically excluding any failure to pay money), and the
breaching Party has begun substantial corrective action to remedy the
failure or violation within such thirty (30) day period and diligently
pursues such action, in which event, termination shall not be effective
unless sixty (60) days has expired from the date of the Default Notice
without such corrective action being completed and the failure or violation
remedied.
12.5 Notwithstanding any provision to the contrary elsewhere in this Agreement,
(a) if a non-breaching Party terminates this Agreement as a result of a
material breach of this Agreement that is caused by Representative(s) of a
Party who engaged in any gross and/or willful misconduct that resulted in
such material breach and such material breach results in substantial harm
to the non-breaching Party or (b) if a non-breaching Party terminates this
Agreement as a result of a material breach of the confidentiality
obligations of Section 7, which results in substantial harm to the
non-breaching Party, the non-breaching Party shall have the right to
terminate the disclosure rights and licenses granted to the breaching Party
pursuant to Sections 7 and 8, respectively. Provided however that an
intentional material breach of the confidentiality obligations of Section 7
by an employee of a Party acting outside the scope of his/her employment
(i.e., acting without either the knowledge of or the actual or implied
consent of such employee's management) shall not constitute a cause for
termination of the disclosure rights and licenses. If such disclosure
rights and licenses are terminated, the breaching Party shall immediately
return to the non-breaching Party, or destroy, any documentation or
materials provided by the non-breaching Party embodying Specific Results
and/or Background Know-How, and such return or destruction shall be
certified to the non-breaching Party, in writing, by an officer of the
breaching Party. Notwithstanding any such termination of licenses and
disclosure rights to the breaching Party, the rights granted by the
breaching Party to the non-breaching Party or to Third Parties (excluding
Chartered Jointly Owned Facilities) shall survive and remain in full force
and effect. Notwithstanding the provision in Section 18.3 allowing a Party
to institute a proceeding seeking a preliminary injunction, a temporary
restraining order, or other equitable relief without first engaging the
dispute resolution process, termination of licenses in accordance with this
Section 12.5 shall be subject to the dispute resolution processes set forth
in Section 18.3, and termination shall not be effective until such dispute
resolution process is completed.
SECTION 13 - FUNDS TRANSFER, NOTICES AND OTHER COMMUNICATIONS
13.1 Any notice or other communication required or permitted to be given to a
Party pursuant to this Agreement shall be sent to such Party by facsimile
or by registered airmail, postage prepaid, addressed to it at its address
set forth below, or to such other address as it may designate by written
notice given to the other Party. All payments due hereunder to IBM shall be
made to IBM by telegraphic transfer or other equally expeditious means and
IBM shall notify Chartered
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within thirty (30) days of the date of this Agreement of the account and
other details needed by Chartered in order to effect such transfer. Any
such payment, invoice, notice or other communication shall be effective on
the date of receipt. The addresses are as follows:
13.1.1 In the case of IBM,
for mailing notices and other communications to IBM:
IBM Corporation
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxx Xxxxxx, VP Technology and Emerging Products
IBM Microelectronics
with a copy to:
IBM Corporation
Drop 92B
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Associate General Counsel, Microelectronics
for quarterly royalty reports:
Director of Licensing
IBM Corporation
Xxxxx Xxxxxx Xxxxx, XX-XX000
Xxxxxx, XX 00000-0000
for electronic funds transfer to IBM:
IBM, Director of Licensing
The Bank of New York
Xxx Xxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Xxxxxx Xxxxxx of America
Credit Account No. 000-0000-000
ABA No. 0000-0000-0
Include the following information in the wire detail:
Company Name
Reason for Payment
Agreement Reference No. L024359
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EXECUTION DRAFT November 26, 2002
13.1.2 In the case of Chartered,
for mailing notices and other communications to Chartered:
Legal Department
Chartered Semiconductor Manufacturing Ltd.
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
Attn: General Counsel
for quarterly royalty reports:
Chartered Semiconductor Manufacturing Ltd.
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
Attn: Chief Financial Officer
for electronic funds transfer:
Chartered shall provide IBM with written notice of this account information in
writing at least thirty (30) days prior to the first IBM payment under this
Agreement.
SECTION 14
INTENTIONALLY LEFT BLANK
SECTION 15 - FORCE MAJEURE
15.1 Either Party hereto shall be excused from the fulfilment of any Process
Development Project obligation or any other obligation set forth in this
Agreement under this Agreement for so long as such fulfilment is prevented
by any circumstances of force majeure such as but not limited to acts of
God, war, riot, strike, lockout, labor unrest, fire, flood, other natural
catastrophe, shortage of materials or transportation, national or local
government regulations (including, but not limited to, export regulations,
but only to the extent such export regulations do not allow for appropriate
export licenses or such export licenses are not granted despite both
Parties having exercised good faith efforts to obtain such export
licenses), or any other circumstance of like kind outside its reasonable
control, provided that the Party seeking to be excused shall make every
reasonable effort to minimize the prevention of such fulfilment; and
provided further that, if such force
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majeure continues to prevent or delay performance of such Party for more
than one-hundred eighty (180) days and has a material impact on the Process
Development Projects, the other Party may terminate this Agreement,
effective immediately upon written notice to such Party. Such termination
shall not constitute a termination for breach pursuant to Section 12.4;
Section 12.2 shall apply to any such termination.
15.2 Upon the ending of such circumstance without the other Party having
terminated this Agreement as provided in Section 15.1 above, the Party
excused shall promptly resume the fulfilment of obligations affected.
SECTION 16 - TAXES
Each Party shall bear and pay all taxes (including, without limitation, sales
and value added taxes but excluding income tax as specified below) applicable to
such Party, including those imposed by its own national government, or any
political subdivision thereof, as the result of the existence of this Agreement
or the exercise of rights hereunder. If either Party ("payer") is required by
its national government to withhold or deduct income taxes on behalf of the
other Party in respect of the payments made by it to the other Party, payer may
deduct such income tax from the payment due and furnish the other Party within a
reasonable time after the payer's receipt of tax certificates from the
applicable government entity, such original certificates and other evidence of
deduction and payment as the other Party may properly require. In addition, each
Party can independently pursue any applicable tax credit for its share of
expenses related to the Process Development Projects. Chartered will provide
reasonable assistance to IBM to seek an exemption of withholding taxes under the
appropriate section(s) of the Income Tax Act of Singapore or the Economic
Expansion Incentive (Relief from Income Tax) Act and if Chartered is the
appropriate Party to do so, Chartered will apply in a timely manner for such an
exemption. IBM shall provide assistance, as required, to Chartered, to complete
the necessary forms required for the application for such exemption of
withholding tax.
SECTION 17 - LIMITATION OF LIABILITY
17.1 In no event shall either Party (or its Subsidiaries) be liable to the other
Parties for incidental damages, special damages, punitive damages, lost
profits, lost savings or any other such damages, including consequential
damages, regardless of whether the claim is for breach of contract, breach
of warranty, tort (including negligence), failure of a remedy to accomplish
its purpose or otherwise, even if such Party (or any Subsidiary) has been
advised of the possibility of such damages.
17.2 In no event shall either Party's (or its respective Subsidiaries')
aggregate liability to the other Party (for direct damages or otherwise) in
connection with any claim or claims relating to or arising under this
Agreement exceed the amount of XXXXX, regardless of the form of action.
This limitation will not
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apply to any claim for payment of a sum or sums properly due under this
Agreement, for which the maximum amount of liability shall not exceed the
total amount of payments set forth in Section 5.1 plus interest as set
forth in Section 5.2. In addition, neither dollar limitation shall apply to
(i) breach of the confidentiality obligations set forth in Section 7; or
(ii) death, personal injury or physical damage to real property or tangible
personal property resulting from a Party's own gross negligence, including
that of its employees, agents or subcontractors.
17.3 Nothing contained herein shall limit any Party's right to seek a
preliminary injunction, temporary restraining order or any other equitable
relief in order to avoid material harm to its property, rights or other
interests.
17.4 In no event shall either Party (or its respective Subsidiaries) be liable
for any damages claimed by the other Party based on any Third Party claim,
except as specifically set forth in Section 17.2 (ii) above.
SECTION 18 - GENERAL
18.1 Nothing contained in this Agreement shall be construed as conferring any
right to use in advertising, publicity or other promotional activities any
name, trade name, trademark or other designation of either Party hereto
(including any contraction, abbreviation or simulation of any of the
foregoing); and each Party hereto agrees not to disclose to other than its
Subsidiaries the terms and conditions of this Agreement without the express
written consent of the other Parties, except as may be required by law or
government rule or regulation, having provided the other Party with prior
written notice of such disclosure and having made a reasonable effort to
limit such disclosure to the minimum required and obtaining a protective
order requiring that the information and/or documents so disclosed be used
only for the purposes for which such disclosure is required.
Notwithstanding the foregoing, 1) the Parties shall be permitted to
disclose a summary of pertinent Sections of this Agreement that are
reasonably necessary for disclosing and/or licensing under this Agreement,
and 2) each Party shall be permitted to disclose pertinent Sections of this
Agreement, in confidence (consistent with treatment of such Party's own
comparable confidential information), to such Party's accountants, banks
and financing sources and other similar business advisors and to
appropriate regulatory authorities for purposes of seeking tax exemptions
and applying for research grants.
18.2 This Agreement shall be construed, and the legal relations created herein
between the Parties shall be determined exclusively, in accordance with the
laws of the United States of America and, specifically, the State of New
York, without regard to conflicts of law, as if said Agreement were
executed in, and fully performed within, the State of New York. Any
proceeding to enforce, or to resolve disputes relating to, this Agreement
shall be brought exclusively before a court of competent jurisdiction in
the State of New York, including a Federal District Court, sitting within
such State, or in the Republic of Singapore or the US International Trade
Commission. The Parties hereby irrevocably
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consent to jurisdiction in such court, and hereby expressly waive any right
to a jury trial and agree that any proceeding hereunder shall be tried by a
judge without a jury. In any proceedings neither Party shall assert that
such court lacks jurisdiction over it or the subject matter of the
proceeding.
18.3 In the event of any dispute under this Agreement, and as a condition
precedent to either Party filing suit, instituting a proceeding or seeking
other judicial or governmental resolution in connection therewith, the
Parties will attempt to resolve such dispute by negotiation in accordance
with the following dispute resolution process, excepting only that a Party
may institute a proceeding seeking a preliminary injunction, a temporary
restraining order, or other equitable relief, if necessary in the opinion
of that Party to avoid material harm to its property, rights or other
interests, before commencing or at any time during the course of the
dispute procedure in this Section 18.3.
18.3.1 Such negotiations shall first involve the individuals in the
Management Committee. These individuals will exercise reasonable
efforts to resolve such dispute.
18.3.2 If such negotiations do not result within thirty (30) calendar days
of their receipt of a written referral to them in a resolution of
the dispute, the dispute will be referred in writing to the
following senior executives (with a copy to the persons named in
Section 13.1 above), which senior executives shall discuss and meet
in person, if necessary, in order to attempt to negotiate a
resolution to the dispute:
For Chartered: Chia Song Hwee
President & CEO
For IBM: Dr Xxxx Xxxxx, III
Senior Vice President and Group Executive,
Technology Group
Each Party may appoint a successor to such senior executive for
purposes of this Section 18.3 by giving written notice to the other
Party.
18.3.3 Except as set forth above, no Party shall file suit, institute a
proceeding or seek other judicial or governmental resolution of the
dispute until at least sixty (60) calendar days after the first
meeting between the senior executives.
18.4 In the event that any litigation occurs between the Parties pertaining to
this Agreement and any technical issues arise in the course thereof, the
Parties shall make good faith efforts to select one or more neutral
mutually acceptable technical experts with expertise in the pertinent
technical issues to assist the court in understanding and evaluating such
issues.
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18.5 Neither Party shall assign any of its rights or obligations under this
Agreement without prior written consent of the other Party. Any attempted
such assignment without such permission shall be null and void. Except
that IBM may assign or transfer its rights to receive payment hereunder to
any party upon written notice to Chartered and either Party may assign or
transfer any of its rights and obligations to a Wholly Owned Subsidiary
upon written notice to the other Party, provided that the assigning or
transferring Party agrees that such assignee or transferee will remain
(and it does remain) a Wholly Owned Subsidiary of such Party; however,
such Wholly Owned Subsidiary shall be capable of performing either
directly or indirectly all the obligations of the assigning Party set
forth in Agreement and the assigning Party shall guarantee the performance
of such Wholly Owned Subsidiary.
18.6 No actions, regardless of form, arising out of this Agreement, may be
brought by either Party more than two (2) years after the cause of action
has arisen.
18.7 Each Party shall be responsible for compliance with all applicable laws,
regulations and ordinances. In addition, neither Party nor any of its
agents or employees acting on behalf of said Party will export or
re-export any confidential information of the other Party, or any process,
product or service that is produced as a result of the use of such
confidential information, to any country specified in the applicable laws
and regulations of Singapore or the United States as a prohibited
destination, without first obtaining the relevant government's approval,
if required. Upon request, each Party will advise the other of the
countries then specified as prohibited destinations.
18.8 All monetary amounts specified herein are in lawful money of the United
States of America.
18.9 Neither this Agreement nor any activities hereunder shall impair any right
of either Party to design, develop, manufacture, sell, market, service, or
otherwise deal in, directly or indirectly, manufacturing processes,
products or services developed by such Party independent of this
Agreement, including those which are competitive with those offered by
either Party. Subject to the confidentiality and license limitations set
forth in this Agreement, each Party may pursue activities independently
with any Third Party even if similar to the activities under this
Agreement.
18.10 Each Party is an independent contractor and not an agent, employee or
fiduciary of the other Party for any purpose whatsoever. Neither Party
shall make any warranties or representations on behalf of the other Party,
nor shall it assume or create any other obligations on any other's behalf.
Nothing herein shall be taken to constitute a partnership or joint venture
between the Parties hereto.
18.11 The Parties agree that, promptly after the Effective Date, they will issue
a press release describing the relationship established hereby. The text
of such press release will be mutually agreed to by the Parties, which
agreement will not be unreasonably withheld. Any other press releases and
other like publicity or advertising relating to this Agreement
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and/or which mentions any other Party by name shall be agreed upon by the
Parties in writing prior to any release, such agreement not to be
unreasonably withheld.
18.12 If any section or subsection of this Agreement is found by competent
judicial authority to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of any such section or
subsection in every other respect and the remainder of the terms of this
Agreement shall continue in effect so long as the amended Agreement still
expresses the intent of the Parties. If the intent of the Parties cannot
be preserved, the Agreement shall be renegotiated with the Parties
substituting for any invalid or unenforceable provision a valid or
enforceable provision that achieves to the greatest extent possible the
same effect as would have been achieved by the invalid or unenforceable
provision.
18.13 Any waiver by either Party of any breach of, or failure to enforce at any
time, any of the provisions of any of this Agreement shall not be
construed as or constitute a continuing waiver of such provision, or a
waiver of any other provision of this Agreement, nor shall it in any way
affect the validity of any of this Agreement or any part thereof, or the
right of either Party thereafter to enforce each and every provision of
any of this Agreement.
18.14 This Agreement will not be binding upon the Parties until it has been
signed herein below by or on behalf of each Party, in which event it shall
be effective as of the Effective Date. This Agreement constitutes the
entire agreement between the Parties with respect to the subject matter
hereof and shall supersede all previous communications, representations,
understandings and agreements, whether oral or written, made in the course
of discussions and/or negotiations between the Parties or any officer or
representative thereof with respect to the subject matter of this
Agreement. No amendment or modification of this Agreement shall be valid
or binding upon the Parties unless made in writing and signed on behalf of
each of such Parties by their respective representatives thereunto duly
authorized. The requirement of written form may only be waived in writing.
18.15 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but each of which together shall constitute one and
the same agreement. Any signed copy of this Agreement made by reliable
means (e.g., photocopy or facsimile) is considered an original.
18.16 The terms and conditions of this Agreement are intended solely for the
benefit of each Party and their permitted successors and/or assigns, and
it is not the intention of the Parties to confer third party beneficiary
rights upon any other person or entity.
INTENTIONALLY LEFT BLANK
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IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
CHARTERED SEMICONDUCTOR MANUFACTURING INTERNATIONAL BUSINESS MACHINES
LIMITED CORPORATION
By: /s/ Chia Song Hwee By: /s/ Dr. Xxxx Xxxxx, III
--------------------------------- ------------------------------
Name: Chia Song Hwee Name: Dr. Xxxx Xxxxx, III
Title: President and CEO Title: Senior Vice President and
Group Executive,
Technology Group
Date: Date:
------------------------------- ----------------------------
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EXECUTION DRAFT November 26, 2002
EXHIBIT A: TECHNICAL OBJECTIVES
EXHIBIT B: PROJECTED SCHEDULE
EXHIBIT C: CHARTERED AND IBM STAFFING
EXHIBIT D: RESPONSIBILITIES OF MANAGEMENT COMMITTEE
EXHIBIT E: PROJECT LEADERS RESPONSIBILITIES
EXHIBIT F: VISITATION GUIDELINES FOR IBM AND CHARTERED
EXHIBIT G: DOCUMENTATION/ DELIVERABLES FOR EACH TECHNOLOGY
EXHIBIT H: MANUFACTURING PARTICIPATION AND TRANSFER SUPPORT
EXHIBIT I: SCOPE AND PURPOSE OF EACH ORIENTATION
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EXECUTION DRAFT November 26, 2002
EXHIBIT A
TECHNICAL OBJECTIVES
XXXXX
Page 45 of 73
EXECUTION DRAFT November 26, 2002
EXHIBIT A
xxxxx
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EXHIBIT A
xxxxx
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EXHIBIT A
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT B
PROJECTED SCHEDULE
(B1) PROJECT SCHEDULE IN IBM FISHKILL
xxxxx
B-49
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EXECUTION DRAFT November 26, 2002
EXHIBIT C
CHARTERED AND IBM STAFFING
XXXXX
(C2) CHARTERED STAFFING PARTICIPATION
Pursuant to Section 4.3 of the Agreement, Chartered agrees to provide the
Representatives as set forth below:
xxxxx
(C3) IBM STAFFING PARTICIPATION
Pursuant to Section 4.3 of the Agreement, IBM agrees to provide Representatives
as set forth below:
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT D
RESPONSIBILITIES OF THE MANAGEMENT COMMITTEE
- Approve changes in Strategic Technology Objectives as set forth in Exhibit
A.*
- Approve changes of schedules of the Process Development Projects set forth
in Exhibit B.*
- Establish a regular review process on no more than a quarterly basis with
business executives of each of the Parties of at least the level of vice
president or other comparable level.
- Approve external communications about the goals of the Process Development
Projects and external publications.*
- Resolve such other items as the Management Committee deems appropriate or
as indicated elsewhere in the Agreement as requiring the agreement of the
Management Committee.
* ITEMS MARKED REQUIRE UNANIMOUS APPROVAL OF THE MANAGEMENT COMMITTEE
Subject to Section 3.2 of the Agreement, all other responsibilities, including
day-to-day management responsibility for the results to be achieved under the
Agreement, shall reside with the IBM Project Leader with the help of the
Chartered Co- Project Leader.
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EXECUTION DRAFT November 26, 2002
EXHIBIT E
PROJECT LEADERS' RESPONSIBILITIES
(E1) RESPONSIBILITIES OF THE IBM PROJECT LEADER
Project organization and coordination
- Responsible for implementation of directives from the Management
Committee for the Process Development Projects
- Responsible for identification and presentation to the Management
Committee of those items which need Management Committee approval
- Responsible for Process Development Project reporting at Management
Committee reviews
- Responsible for quarterly reports (technology status, milestones).
- Responsible for allocation of Process Development Project resources
- Responsible for review and approval of technical publications
- Responsible for determining the organizational structure of the
Process Development Project Team and appointing key technical leaders
and project managers to execute Process Development Projects
- Responsible for managing the IBM infrastructure to support the Process
Development Project Activities
- Responsible for Process Development Project schedule planning
- Responsible for management of IBM Representatives
- Responsible for completion of Documentation for each of the Process
Development Projects
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EXECUTION DRAFT November 26, 2002
EXHIBIT E
(E2) RESPONSIBILITIES OF THE CHARTERED CO-PROJECT LEADER
- Responsible for implementation of directives from the Management
Committee for the Process Development Projects
- Responsible for identification and presentation to Management
Committee of those items which need Management Committee approval
- Responsible for Process Development Project reporting at Management
Committee reviews
- Responsible for quarterly reports (technology status, milestones)
- Responsible for review and approval of technical publications
- Responsible for management of Chartered's Representatives
- Responsible for completion of Documentation for each Process
Development Project
- Responsible for determining the organizational structure of the
Process Development Project Team and appointing key technical leaders
and project managers to execute Process Development Projects
- Responsible for Process Development Project schedule planning
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EXECUTION DRAFT November 26, 2002
EXHIBIT F
VISITATION GUIDELINES FOR IBM AND CHARTERED
(F1) IBM'S VISITATION GUIDELINES
1.0 IBM shall issue security badges to visitors. Security badges must be
returned by visitors at the end of each assignment. Security badges must be
visibly displayed at all times by visitors while on IBM premises. If the
security badge is lost or stolen, the IBM Technical Coordinator shall be
immediately advised. Security badges shall not be loaned or interchanged.
2.0 Visitors shall only enter those buildings, departments, or areas which are
specifically designated by the IBM Technical Coordinator and for which
entry is required under this Agreement.
3.0 Visitors shall comply with all log-in/log-out requirements when entering or
leaving IBM buildings and/or designated work areas.
4.0 Visitors shall comply with all security and safety guidelines which are
posted on IBM premises and/or are otherwise specified by IBM.
5.0 IBM copying equipment and/or other IBM equipment (such as data processing
equipment and word processing equipment) shall not be used by visitors
except with prior approval of the IBM Technical Coordinator.
6.0 Visitors shall not disturb materials lying on IBM desks, mounted on easels
or displayed on chalkboards.
7.0 Visitors shall promptly leave buildings and department areas after
completing work assignments.
8.0 Visitors shall not leave IBM external doors propped open. No IBM materials
shall be removed from buildings without prior written approval.
9.0 Alcoholic beverages, illegal drugs, guns and ammunition, cameras, and
recording devices are not permitted on IBM premises.
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EXECUTION DRAFT November 26, 2002
EXHIBIT F
(F2) CHARTERED'S VISITATION GUIDELINES
1.0 Chartered shall issue security badges to visitors. All visitors shall
display their security pass at chest level on entering and while remaining
in the premises.
2.0 The security pass is not transferable. Any unauthorized possession, use,
retention, alteration, destruction or loan of pass to another person is
deemed to be a penal offence.
3.0 All assets brought into Chartered shall be declared with security using the
standard inward declaration form.
4.0 All assets to be brought out of Chartered must be accompanied by an
authorized gate pass form.
5.0 All items and vehicles entering or leaving Chartered are subjected to
checks by Security.
6.0 No photographic or video cameras are allowed within Chartered premises
unless authorized and with necessary clearance from the security
department.
7.0 All alcoholic beverages, narcotics, durians and smoking materials are not
allowed to be brought into Chartered premises.
8.0 Smoking is only allowed at the exterior designated smoking areas
9.0 Copying equipment or any data processing equipment / printing equipment
shall not be used by visitors without prior approval from Chartered's
Technical Coordinator.
10.0 Visitors shall not disturb material lying on Chartered employee desks,
mounted on easels or displayed on notice boards.
11.0 All visitors are to abide by Chartered's then-effective security
procedures, which will be provided to IBM.
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EXECUTION DRAFT November 26, 2002
EXHIBIT G
DOCUMENTATION FOR EACH TECHNOLOGY
XXXXX
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EXECUTION DRAFT November 26, 2002
EXHIBIT G
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT G
- XXXXX
Additional requests for documentation or any modifications to this Exhibit G
shall be by the mutual agreement of the Project Leaders, which agreement shall
not be unreasonably withheld. Any and all such additional documentation or
modifications shall be made available to both Parties as set forth in Section
3.7 of the Agreement.
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
MANUFACTURING PARTICIPATION AND TRANSFER SUPPORT
XXXXX
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
H2 CHARTERED PARTICIPATION IN PROCESS TRANSFER AND MANUFACTURING AND SCHEDULE IN
FISHKILL
H2.1 CHARTERED STAFFING PARTICIPATION IN PROCESS TRANSFER AND MANUFACTURING
The Chartered Representatives to be involved for technology transfer of the 90nm
and 65nm process ("Process Transfer") shall be excluded from Chartered's
staffing level for the Process Development Projects set forth in Section C2
above. During the duration of the Process Development Projects, Chartered may
provide xxxxx to the IBM facilities used by the Process Development Projects for
Process Transfer purposes. Chartered shall inform IBM xxxxx of the arrival of
each such person at such IBM facilities. xxxxx. The timing of such access and
the specific assignments for each such Representative shall be agreed upon by
the Chartered Transfer Coordinator and the IBM Transfer Coordinator.
It is the goal of the Parties that all Chartered Representatives participating
in Process Transfer or manufacturing will be assigned xxxxx. Except as indicated
in Table H2.2 with respect to Chartered Representatives participating in xxxxx,
any exception assignments of Chartered Representatives xxxxx must be by mutual
agreement of the Chartered Transfer Coordinator and the IBM Transfer
Coordinator.
Table H2.1
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
H.2.2 MANUFACTURING AREA & CHARTERED REPRESENTATIVES
xxxxx
(H3) INTENTIONALLY LEFT BLANK
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
(H4) ASSISTANCE FOR CHARTERED'S FAB 7 FACILITY START UP FOR 90NM AND 65NM NODES
AT CHARTERED
H4.1 ASSUMPTIONS:
- xxxxx
- IBM to pay for travel expenses such as air fares and hotel for IBM sending IBM
Representatives to Chartered's Fab 7 Facility pursuant to this Exhibit H.
- Chartered to pay for travel expenses such as air fares and hotel for Chartered
sending Chartered Representatives to IBM's East Fishkill Facility pursuant to
this Exhibit H.
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
H4.2 SUMMARY OF ASSISTANCE
Pursuant to Section 3.6 of the Agreement, projected work scope of IBM assistance
in Chartered's Fab 7 Facility is as set forth in the table below; details of the
exact work scope will be defined by Chartered Transfer Coordinator and must be
consistent with this Exhibit H4.2. xxxxx. Scheduling of assistance is subject to
mutual agreement of the Parties.
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
(H5) ACTIVITIES AT IBM ASSOCIATED WITH CHARTERED'S FAB 7 FACILITY START UP FOR
90NM AND 65NM NODES
H5.1 Chartered Representatives will have access to the manufacturing and
development activities and materials at IBM's East Fishkill facility as set
forth in the table below. IBM and Chartered Representatives will provide the Fab
7 startup workshop as set forth in the table below.
--------------------------------------------------------------------------------
- IBM and Chartered Transfer Coordinators will coordinate. xxxxx.
--------------------------------------------------------------------------------
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
xxxxx
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EXHIBIT H
(H6) TECHNOLOGY PROCESS TRANSFER SCHEDULES AND RESOURCES ALLOCATIONS
SUMMARY TABLE H6
xxxxx
(H7) OTHER REQUIREMENTS:
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
(H8) EQUIPMENT LIST COMPARISON FOR IBM AND CHARTERED
This Exhibit H8 lists the 300mm equipment comparison between IBM's facility and
Chartered's Fab 7 Facility. xxxxx. The following table is the Equipment List as
of the Effective Date and is subject to change by Chartered.
H8.1 TABLE COMPARING THE IBM EQUIPMENT LIST VS CHARTERED'S FAB 7 FACILITY
EQUIPMENT LIST
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
H8.1 TABLE COMPARING THE IBM EQUIPMENT LIST VS CHARTERED'S FAB 7 FACILITY
EQUIPMENT LIST (CONT.)
xxxxx
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EXHIBIT H
H8.1 TABLE COMPARING THE IBM EQUIPMENT LIST VS CHARTERED'S FAB 7 FACILITY
EQUIPMENT LIST (CONT.)
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
H8.1 TABLE COMPARING THE IBM EQUIPMENT LIST VS CHARTERED'S FAB 7 FACILITY
EQUIPMENT LIST (CONT.)
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT H
H8.1 TABLE COMPARING THE IBM EQUIPMENT LIST VS CHARTERED'S FAB 7 FACILITY
EQUIPMENT LIST (CONT.)
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT I
SCOPE AND PURPOSE OF EACH ORIENTATION
ORIENTATION 1 (TARGET DATE BEFORE JAN. 31, 2003) XXXXX (FISHKILL). Such
Orientation Workshop above shall be held at IBM's Fishkill facility for xxxxx.
xxxxx
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EXECUTION DRAFT November 26, 2002
EXHIBIT I
ORIENTATION 2 (TARGET DATE BEFORE APRIL 30, 2003) XXXXX (FISHKILL). Such
Orientation Workshop above shall be held at IBM's Fishkill facility for xxxxx.
xxxxx
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