EXHIBIT 6.1
CONFIDENTIAL TREATMENT REQUESTED: THE PORTIONS OF THIS AGREEMENT MARKED BY *****
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
This Amended and Restated Amendment No. 2, effective as of March 9, 2004
("Effective Date"), to the ""SF" Process Development and Cost Sharing Agreement"
of November 26, 2002 (hereinafter referred to as the "2-Way Agreement") and
Amendment No.1 to such 2-Way Agreement, dated June 26, 2003 ("Amendment No. 1"),
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, the Parties previously entered into the 2-Way Agreement and Amendment
No. 1 to the 2-Way Agreement and had entered into Amendment No. 2 to the 2-Way
Agreement as of March 5, 2004;
WHEREAS, the Parties and Infineon Technologies AG ("Infineon") entered into an
"SF Process 65nm/45nm Development and Cost Sharing Agreement" dated June 26,
2003 ("3-Way Agreement");
WHEREAS, Samsung Electronics Co., Ltd. ("Samsung") has expressed a desire to
jointly develop 300mm Wafer 65nm and 45nm Bulk CMOS logic technology with the
Parties and Infineon, and both Parties and Infineon desire to work with Samsung
in carrying out such joint development;
WHEREAS, contemporaneously with Amendment No. 2 to the 2-Way Agreement, the
Parties and Infineon entered into an agreement with Samsung entitled "SF Process
65nm/45nm Development and Cost Sharing Agreement," (hereinafter referred to as
the "4-Way Agreement"), under which all four parties will jointly develop 300mm
Wafer 65nm and 45nm Bulk CMOS logic technology;
WHEREAS, the Parties wish to address certain matters between them pertaining to
the 4-Way Agreement in this Amended and Restated Amendment No. 2 to the 2-Way
Agreement and wish to replace Amendment No. 2 with this Amended and Restated
Amendment No. 2;
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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:
1. Amendment No. 1 shall continue in full force and effect, as modified by this
Amended and Restated Amendment No. 2.
2. As of the Effective Date, all references in Amendment No. 1 to the 3-Way
Agreement shall be replaced by the 4-Way Agreement and all references (other
than those in the preamble and Section 7 of such Amendment No. 1 and with the
exception of those specifically modified in Section 3 of this Amended and
Restated Amendment No. 2) to "Infineon" shall be replaced by "Infineon and
Samsung".
3. The Parties agree that as of the effective date of the 4-Way Agreement, the
rights and obligations of the Parties as to the 300mm Wafer 65nm Bulk CMOS
Development Project and 300mm Wafer 45nm Bulk CMOS Development Project shall be
as set forth in the 4-Way Agreement and the specific provisions of the 2-Way
Agreement listed as surviving in Amendment No. 1, or as previously amended by
Amendment No. 1 and as further modified below, which provisions of the 2-Way
Agreement shall continue in full force and effect as between IBM and Chartered
and shall supercede and control over any contrary or inconsistent provision in
the 4-Way Agreement. The Parties agree to further amend the 2-Way Agreement and
Amendment No. 1 as follows:
a. Section 7.6, as previously modified in Amendment No. 1, shall now apply to
300mm Wafer 90nm Bulk CMOS, 300mm Wafer 65nm Bulk CMOS and 300mm Wafer 45nm Bulk
CMOS, and shall be modified and clarified as follows:
- In Section 7.6.6.1(b), after ***** add ***** and
- In Section 7.6.6.2, last paragraph before Section 7.6.6.3, the parties
agree that for the avoidance of doubt none of such provisions shall apply
to any payment made by Samsung Electronics Co., Ltd to IBM.
b. For the avoidance of doubt, none of the provisions of Section 7.10.1 through
7.10.3 applicable to the 300mm Wafer 65nm Bulk CMOS Process Development Project
shall apply to the rights and licenses set forth in the 4-Way Agreement to
Infineon or Samsung as of the Effective Date thereof, nor to any of the licenses
granted by Infineon or Samsung thereunder;
c. Replace all references to "*****" in Section 7.11 and in Amendment No. 1,
with "*****" .
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d. Replace the last paragraph of the definition of Wholly Owned Subsidiary with
the following:
"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, A) 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/or B) by Samsung Electronics Co., Ltd., and/or Infineon Technologies,
A.G., 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.
4. IBM hereby represents that in its bilateral agreement referenced in Section
5.1 of the 4-Way Agreement with Samsung entered into as of March 5, 2004,
Samsung is not granted any disclosure rights in addition to those set forth in
the 4-Way Agreement. Chartered hereby acknowledges and agrees that IBM may
unilaterally amend the disclosure rights granted to Samsung in the 4-Way
Agreement, by way of one or more separate IBM-Samsung bilateral agreements;
*****.
IN WITNESS WHEREOF, the Parties hereto have caused this Amended and Restated
Amendment No. 2 to the 2-Way 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/ Xxxxx X. Xxxxxxx
----------------------------- ----------------------------
Name : Chia Song Hwee Name : Xxxxx X. Xxxxxxx
Title : President and CEO Title : Vice President of Strategy,
Technology, Systems and
Technology Group
Date : Date :
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