AGREEMENT FOR WAFER PRODUCTION AND TESTING
BETWEEN
ADVANCED POWER TECHNOLOGY
AND
SIEMENS AKTIENGESELLSCHAFT
AGREEMENT FOR WAFER PRODUCTION AND TESTING
This agreement ("Agreement") is entered into by Advanced Power Technology, a
Delaware Corporation located in Bend, Oregon, USA (hereinafter referred to as
"APT ")
and
Siemens Aktiengesellschaft a German corporation located in Munich, Germany
(hereinafter referred to as "Siemens")
RECITALS
WHEREAS APT owns certain intellectual property rights to the technology and
design methods used in the design and manufacture of APTs Power MOS
semiconductors.
WHEREAS APT desires Siemens to produce and supply die to APT in the form of
fully processed wafers (including thinning, testing and sawing).
WHEREAS Siemens desires to produce and supply fully processed wafers to APT upon
the terms and conditions contained in this agreement.
WHEREAS both parties seek to enter into a long-term business relationship where
Siemens manufactures such fully processed wafers for APT including future Power
MOS generations. The expansion of this contract to FREDFET process out in time
is possible if it made economic sense for both companies.
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
NOW THEREFORE, based on mutual promises contained herein and intending to be
legally bound, Siemens and APT agree as follows:
DEFINITIONS
1.1 "Power MOS-Die" shall mean Die listed and specified in Exhibit 1, to be
manufactured by Siemens for APT. Exhibit 1 may be amended or modified in
numbers and types from time to time by agreement between APT and Siemens.
1.2 Product Information Package" shall mean the technical information (e.g.
data base tape, test program, etc.) and hardware utilities specified in
EXHIBIT 2 to be provided by APT for each Power MOS Die.
1.3 "Process" :shall mean a manufacturing process which has been mutually
accepted by APT and Siemens and which has been specified in Exhibit 3, to
be used by Siemens for the purpose of manufacturing of Wafers which are
exclusively for APT.
1.4 "Wafers" shall mean 6-inch silicon wafers with Power MOS Die manufactured
by Siemens using the Process, and design and database of the Product
Information Package.
1.5 "Good Die" shall mean a Die on a Wafer which meets the specifications as
per Exhibits 3, 4 and 5, and which fully satisfies the relevant test
program for Wafer test, supplied by APT.
1.6 "Proprietary Information" shall mean any and all information including but
not limited to technical information, database tapes, specifications, test
tapes and supporting documentation provided either orally, in writing, or
in machine readable format and reticles or masks generated by or for
Siemens using the Product Information Package; provided that all such
information is marked "Confidential" or similarly, or, if oral, identified
as proprietary at time of disclosure and reduced to writing within thirty
(30) days thereafter. Additionally the partners agree that this Agreement
and its Exhibits as such and the content thereof shall be kept
confidential. Notwithstanding the foregoing Proprietary Information does
not include information generally available to the public, information
independently developed or known by the receiving party without reference
to information disclosed hereunder, information rightfully received from a
third party without confidentiality obligations, or information authorized
in writing for release by the disclosing party hereunder.
1.7 "Risk Start" shall mean production of Wafers before qualification, defined
in Section 2.3, has been completed.
PROCESS TECHNOLOGY. TESTING CAPABILITY AND QUALIFICATION
2.1 PROCESS TECHNOLOGY
2.1.1 APT shall provide Siemens with the design information for each Process as
more fully described in EXHIBIT 3 for the purpose of specifying the Process
in accordance with Section 2.1.2.
2.1.2 APT and Siemens shall agree upon Process specifications to be described in
Exhibit 3, which shall be finalized before Siemens begins production in
accordance with Section 3.
2.1.3 Subject to the stipulations and procedure set forth in this Agreement
and in accordance with the qualification plan described in Exhibit 5
Siemens shall bring up the Process which shall meet the specification in
Exhibit 3 and deliver the required Wafers for qualification purposes.
2.2 MASKS
2.2.1 Siemens shall provide for each Power MOS Die the masks which are necessary
for production of Wafers. The masks shall be produced by using the data
base tape of APT and if necessary other technical information as provided
with the relevant Product Information Package as more fully described in
Exhibit 2.
2.2.2 For each Power MOS Die APT shall pay the first set of production masks,
and any subsequent redesigned mask layers, including those for
modified/redesigned Power MOS Die if such modification/redesign is APT's
responsibility or has been conducted upon APT's request. APT will supply
the databases to Siemens and the masks will be generated by Siemens for use
in manufacturing and the amount APT will pay is Siemens internal mask shop
prices if made internally or the outside mask shop Cost if purchased
externally. Except as provided above all further masks shall be at Siemens
charge, if not agreed otherwise.
2.3 QUALIFICATION
2.3.1 The qualification approval by APT for each Process and each individual
Power MOS Die, manufactured with the Process, is a prerequisite for
ordering and delivery of Wafers and/or Good Dies. This section 2.3.1 is not
applicable in the case of Risk Starts.
2.3.2 For the purpose of qualification as specified in Exhibit 4 and 5 Siemens
shall provide APT, with the agreed upon Number of Wafers. Such Wafers
delivered for qualification must also meet all agreed APT standards,
specifications and requirements defined in the Exhibits 1. 2, 3. 4, and
provided however, that if failures occur due to reasons, for which APT is
responsible, Siemens shall be paid 100 % of the Wafer price as specified in
Exhibit 7. Siemens shall in accordance with the agreed schedule deliver to
APT any documents and reports as required.
2.3.3 Prior to completion of the qualification, APT may. in accordance with
Exhibit 6 request that Siemens provides Wafers out of "Risk Starts".
Siemens will provide these Wafers out of Risk Starts to APT at the
price/volume specified in Exhibit 6 and 7.
2.3.4 During qualification, as specified in Exhibit 5, APT may stop production
of Wafers for any or all APT Power MOS Chips by giving notice to Siemens.
Siemens will stop production following completion of the process step at
which the Wafer reside at the time of notification. APT will pay Siemens
for all Wafers started prior to Siemens receiving such notice. Prices for
such Wafers will be based on the stage of production of the Wafers as
defined in Exhibit 7.
2.3.5 After APT qualification approval to the Process Siemens shall not carry
out any major changes on the Process without prior written approval of APT
(major changes as defined by Siemens internal standards and approved by
APT). Process changes may only be carried out in accordance with the
Process change notification procedure to be agreed upon.
2.3.6 In the case Siemens desires to perform major changes to a Process APT
shall be informed 9 months, or a shorter period if mutually agreed upon,
prior to the planned commencement of such changes to the Process and shall
receive a detailed description of the planned changes as well as the
results of a re-qualification of the Process with the intended changes to
be performed by Siemens in accordance with Exhibits 3, 4 and 5. APT will
inform Siemens in writing if the desired changes of the Process are
acceptable. In such case a re-qualification of the Process according to
this Section 2.3 is necessary and Siemens shall provide APT with the
necessary Wafers for such re-qualification free of charge. APT shall
purchase the Wafers for re-qualification if such changes to the Process are
requested by APT. Successful re-qualification is the prerequisite for final
approval of APT to a major change to a Process. APT will not unreasonable
deny its consent to a major change to a process requested by Siemens and
APT may not withhold such consent absent clear proof, that such change will
have a material adverse effect on the resulting Power MOS Die, e.g. but not
limited to yield, quality, reliability, specification of the respective
Power MOS Die or reasonable customer requests affecting a material quantity
of Wafers.
2.3.7 The specifications and requirements specified in Exhibits 3. 4 and 5 can
only be modified on mutual agreement between Siemens and APT.
2.3.8 If APT determines that modifications to the specifications are required,
including modifications to photo masks, Process or testing or next
generation MOS technology, Siemens performs such modifications at APT's
Cost which shall be fair and reasonable. Regarding modification of the
Process the parties have to agree to such proposed modifications in
advance. The parties will negotiate adjustment to production price and
delivery schedule in advance if price or delivery schedule are affected by
such modifications.
2.4 TESTING CAPABILITY
2.4.1 The testing of Wafers will be carried out by Siemens. For the purpose of
yield improvement and for the calculation of the good Die price, Siemens
will make available to APT this information's.
2.4.2 In case APT is interested to perform the testing of Wafers, Siemens is
willing to negotiate the terms and conditions of such option.
3. PRODUCTION, FORECAST/ORDERING
3.1 The business for each Power MOS Die will be conducted in two phases. In
phase I, forecasting ordering as well as pricing will be based on Wafers.
In phase II, the pricing will change to Good Dies as specified in Exhibit
7, ordering and forecasting will remain on Wafer base.
3.2 Upon written notice from APT of successful completion of the qualification
as described in Section 2 and having received a purchase order from APT.
Siemens shall manufacture and deliver Wafers according to the terms of this
Agreement.
3.3 Siemens commits to reserve for APT a minimum production capacity for a
minimum volume as defined in Exhibit 6 and to deliver such Wafers to APT or
on request of APT to one of is Subsidiaries. Prices for such Wafers and/or
Good Die are laid down in Exhibit 7.
3.4 As a basis for a long term cooperation APT commits to order a minimum
quantity of Siemens monthly capacity commitment as specified in Exhibit 6.
Should APT fail to fulfil this commitment, APT will pay a
"lost-opportunity-charge" as Specified in Exhibit 6.
3.5 APT and Siemens agree on the forecast and ordering procedure in accordance
with Exhibit 6. Annually or more often if mutually agreed upon Siemens and
APT may adjust the committed capacity in accordance with the volume
adjustment mechanism as specified in Exhibit 6.
3.6 APT may at any time add or substitute Power MOS Die similar to the Power
MOS Die listed in Exhibit 1 using a Process approved by Siemens and APT to
be manufactured and delivered under this Agreement with reasonable prior
notice, provided that the agreed upon quantities of Wafers and/or Good Die
required by APT does not exceed those specified in Section 3.2 except with
the consent of Siemens. A similar Power MOS Die is one which is
manufactured using a Process as specified in Exhibit 3 and in accordance
with the same qualification plan as APT Power MOS product currently
manufactured by Siemens under this Agreement.
3.7 The purchase of Wafers and Good Die pursuant to this Agreement shall be
accomplished by means of APT individual purchase orders or other release
documents (hereinafter collectively referred to as "purchase orders"). The
maximum lead time (time from ordering by APT to delivery to APT) for Wafers
and Good Die is specified in Exhibit 6.
3.8 It is anticipated that from time to time there will be instances where an
accelerated lead and cycle time is required to serve APT's needs. Siemens
will provide such services upon mutually agreed conditions.
3.9 In order to ensure traceability, processing and delivery of Wafers and/or
Good Dies shall only be performed lot by lot unless agreed upon otherwise.
Should splitting be necessary because of process requirements APT will be
notified, sublots must be reunited by Siemens before shipment unless
otherwise agreed. If a lot consists of less than 45 Wafers, Siemens shall
explain the reason and APT may deny acceptance of such a lot.
3.10 In the case of technical problems arising in the processing of Wafers
and/or Good Die, especially with regard to yield, quality and reliability,
Siemens shall inform APT forthwith in writing. Notwithstanding any right
APT may have, APT is prepared to assist Siemens to a reasonable extent in
solving the above mentioned problems.
3.11 Both parties shall immediately advise one another in writing whenever they
have reason to believe that Wafers may not conform to the applicable
specifications.
3.12 In case any technical problem, defect or malfunction should occur, which
Siemens will be informed about, Siemens will immediately start
investigations and supply a first substantiated answer or status report
within seven (7) working days after receipt of APT's notification of such
matter.
3.13 APT may stop production of Wafers for any or all APT Power MOS Products by
giving notice to Siemens. Siemens will stop production following completion
of the process step at which the Wafer reside at the time of APT's receipt
of written notification. APT will pay Siemens for all Wafers started prior
to Siemens receiving such notice. If such stop of production is due to any
reasons) not attributable to a failure by Siemens to fulfil its obligations
under this Agreement, Siemens shall be paid for the Wafers as stated in
Exhibit 6. If such stop of production is due to reasons attributable to a
failure by Siemens to fulfil its obligations under this Agreement, only
those wafers which (i) meet the criteria applicable to production Wafers
pursuant to Section 2.3.2 and (ii) are delivered pursuant to Section 4
below, shall be paid for with 100 % of the Wafer price as specified for
Production Wafers in Exhibit 6. Notwithstanding anything to the contrary,
and subject to the terms of this Section 3.13 with respect to payment
Siemens may, at its discretion, elect to proceed with production as to
which APT has requested a stop by providing APT advance written notice of
the Wafers involved.
3.14 Siemens shall cooperate with APT in order to continuously improve the
outgoing quality by agreed upon quality improvement programs.
4. PRICES, PAYMENT. DELIVERIES AND SHIPMENTS
4.1 Pricing for Wafers and/or Good Die are specified in Exhibit 7 and are based
on FCA, Xxxxx Xxxxx Xxxxxxx Xxxxxxxxxxxxx Xxxxxxx, Xxxxxx, Xxxxxxx. Prices
are quoted in US currency.
4.2 Prices will be in accordance with Exhibit 7.
4.3 Payment shall be effected 30 days net after receipt by APT or one of its
Subsidiaries and the respective invoice from Siemens.
4.4 Subject to a respective purchase order of APT or one of its Subsidiaries
Wafers and/or Good Die shall be delivered in accordance with the delivery
specification to the address as laid down in the purchase order. APT may -
without being obligated to - perform an incoming inspection.
4.5 If any circumstances should arise which could result in a delayed delivery
to APT, Siemens shall promptly notify APT hereof in writing. Siemens will
make every reasonable effort to recover the original schedule.
5. ON-SITE INSPECTION, DOCUMENTATION AND REPORTING
5.1 Subject to Siemens standard safety and manufacturing procedures, employees
of APT shall be allowed to visit Siemens factory during normal working
hours at reasonable prior written notice to Siemens. Such employees shall
be granted such access to Siemens production flow and production control
information regarding the Power MOS Chips.
5.2 Subject to mutually agreeable confidentiality protections and to Siemens
standard safety and manufacturing procedures and upon APT's written request
reasonable in advance, Siemens will allow APT representatives and/or APT
customers to perform an audit of Siemens production site and quality system
for Wafers in accordance with the International Standards in ISO 9001. The
documents which are necessary to perform such audits shall not occur more
than 4 times per year no more than 2 times per quarter.
5.3 On request Siemens shall provide reports to APT. These reports may include
work in process, ordered volumes and outgoing volumes, probe yield, probe
rejects, parametric data. The detailed procedure shall be fixed in writing
separately.
5.4 Both parties shall maintain a clear organizational responsibility for
execution of this Agreement with respect to technical, logistical as well
as quality issues. At least one person from each party will be nominated to
cover the execution of this Agreement full time.
6. WARRANTY
6.1 Siemens warrants that all Wafers and/or Good Die delivered hereunder will
meet the applicable specifications and requirements in Exhibits 1. 2. 3. 4
and 5 and shall be free from defects in material and workmanship.
6.2 If any Wafer supplied by Siemens hereunder fails to conform with this
warranty Siemens shall, at its own Cost, replace such Wafer without delay
after receipt of APTs return shipment thereof. Siemens shall bear APT's
expenses for returning the defective Wafers to Siemens and pay the
transportation of the replaced Wafers to APT. If within thirty (30) days
after Siemens' receipt of such returned Wafer, the replacement is not
shipped, APT shall have the right to replace the defective Wafers with
products from Siemens' latest shipment or APT's stock. Siemens' shall ship
on an emergency basis and on its own account such Number of Wafers as to
make up for the thus diminished APT's stock or ordered quantities.
6.3 The warranty period for the Wafers and Good Die shall end [ * ][ * ]
after the delivery to customers of APT, but in any case no later than
[ * ] from the date of receipt of the Wafers or Good Die by APT.
6.4 If Wafers and/or Good Die fail to meet specifications in Exhibits 1, 2. 3 4
and 5, and in APT reasonable opinion such failure appears material, APT or
one of its Subsidiaries may request Siemens to stop production. If Siemens
is unable to correct such failures within a reasonable time, APT or the
Subsidiary which has ordered may cancel such particular orders.
6.5 If defects or malfunctions appearing to be of excessive or epidemic nature
resulting from processing or the use of unsuitable materials by Siemens,
then Siemens shall take appropriate actions to remedy such defects in
agreement with APT and in accordance with reasonable standards applicable
to the individual circumstances. Siemens shall inform APT in writing about
its actions to be taken within two (2) weeks after notification.
6.6 The foregoing warranty constitutes Siemens' exclusive liability, and the
exclusive remedy of APT, for any breach of any warranty or any
nonconformity of the Wafers to the specifications. This warranty is
exclusive and in lieu of all other warranties, express, implied or
statutory, including but not limited to the warranties for merchantability
and fitness for a particular purpose, which are hereby expressly
disclaimed.
7. FORCE MAJEURE, LATE DELIVERIES
7.1 Neither party shall be liable to the other for failure or delay in the
performance of any of its obligations under this Agreement for the time and
to the extent such failure or delay is caused by Force Majeure such as, but
not limited to, riots, civil commotion's, wars, hostilities between
nations, governmental laws, orders or regulations, actions by the
government or any agency thereof, storms, fires, strikes, lockouts,
sabotages or any other contingencies beyond the reasonable control of the
respective party and of its sub-contractors. In such events; the affected
party shall immediately inform the other party of such circumstances
together with documents of proof and the performance of obligations
hereunder shall be suspended during, but not longer than, the period of
existence of such cause and the period reasonably required to perform the
obligations in such cases.
7.2 In addition to any other rights, in case of a delay of delivery by one
month caused by whatever reason including late deliveries of Siemens'
subcontractors, APT shall be entitled to cancel the order delayed, in whole
or in part, without incurring any liability, and may reorder the quantities
according to then existing needs of APT. APT will have no right to cancel
purchase orders if the late delivery is due to a force majeure of less than
2 months or APT's fault.
PROPRIETARY INFORMATION
8.1 Both Siemens and APT agree that Proprietary Information of the other will
be used by them exclusively for the purpose of manufacturing Wafers and
Good Dies hereunder and
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
will not be disclosed to any third party without the prior written
permission of the disclosing party.
8.2 Siemens agrees to use reasonable care to maintain in confidence Proprietary
Information furnished hereunder, not to make use thereof other than for the
purposes set forth in this Agreement, and not to distribute, disclose or
disseminate Proprietary Information in any way or form to anyone except its
own employees who have a reasonable need to know the same, provided however
that this Agreement shall impose no obligation on Siemens with respect to
any Proprietary Information which
a) Siemens can demonstrate, is already in the public domain or
becomes available to the public through no breach by Siemens;
b) was rightfully in Siemens possession without obligation of
confidence prior to receipt from APT as proved by Siemens'
written records;
c) can be proved to have been rightfully received by Siemens from a
third party without obligation of confidence;
d) is independently developed by Siemens as proved by its written
records;
e) is approved for release by written agreement of APT.
Each party acknowledges and agrees that in the course of performing
under this agreement, it shall have access to and become acquainted
with information concerning various trade secrets and other
confidential and proprietary information of the other party. This
includes but is not limited to marketing plans, the identities of
suppliers and customers, ideas, design rules, secret inventions,
unique processes, compellations of information, records,
specifications and other information which is owned by the other
party, and shall maintain such information in confidence and shall not
apply this information either directly or indirectly without prior
consent from the other party to any products not included in this
agreement.
8.3 Siemens shall destroy all defective Wafers, Die and masks unless otherwise
requested by APT in writing. In the case of idle masks, excessive Wafers or
Good Die Siemens will inform APT in writing and APT will give the
disposition within 30 days.
8.4 No press-release or any publication of the existence of this Agreement
shall be allowed unless first approved by the other party in writing.
8.5 Upon respective written request by APT, Siemens shall return all written
Proprietary Information received, as well as all copies made of such
Proprietary Information.
8.6 All Proprietary Information of APT shall remain the property of APT. Any
masks generated by Siemens from APT database tapes shall be the property of
APT, will be returned to APT on APT request, and will be used exclusively
to produce Wafers and
Good Die for APT. Nothing contained in this Agreement shall be construed as
granting any license or rights under any proprietary right whether present
or future. The disclosure of Proprietary Information shall not result in
any obligation to grant Siemens rights therein.
8.7 If APT is furnished hereunder with Proprietary Information, the stipulation
of Section 8 shall apply accordingly in the reverse relation between the
parties.
8.8 Upon termination or expiration of this Agreement for whatever reason, the
receiving party shall (i) return to the-other party the original and all
copies of any Proprietary Information and (ii) at the disclosing party's
request, have one of its officers certify in writing that it will not make
any further use of such Proprietary Information and will not manufacture or
have manufactured any product incorporating Proprietary Information.
9. PATENT INDEMNITY, PRODUCT LIABILITY INDEMNITY
9.1 It is APTs responsibility to defend or otherwise solve at APT's expense any
dispute arising from a claim that the Power MOS Die infringe a third
party's patent, trademark, copyright, mask work rights, trade secret or
other intellectual properties due to the APT Product Information Package
and incorporated Power MOS processed by Siemens.
9.2 Notwithstanding Section 9.1 above, it is Siemens' responsibility to defend
or otherwise solve at Siemens' expenses any dispute arising from a claim
that the Wafers or die infringe a third party's patent, trademark,
copyright, mask work rights, trade secret or other intellectual properties
due to the Process used by Siemens or its subcontractors to process the
Wafers.
9.3 If a third party's claim is made alleging an infringement of a patent,
copyright or other intellectual properties of the said third party, then
the party to this Agreement against which this claim is raised shall
immediately inform the other party thereof.
9.4 APT shall indemnify and hold Siemens harmless against any third party
claims, costs and expenses due to product liability which arises from
Siemens use of know-how being part of APT Product Information Package
supplied by APT.
9.5 Siemens shall indemnify and hold APT, its Subsidiaries and its customers
harmless against any third party claims, costs and expenses due to any
other product liability other than APT's product liability as per Section
9.4 above.
9.6 The above liabilities of a party hereto to the other party are in any case
under the condition that the other party notifies the first party of the
respective third party's claim without any reasonable delay and does not
admit on its own initiative that said claim was rightfully raised.
9.7 The above liability shall be the sole and exclusive remedies between the
parties with respect to patent indemnity and product liability.
10. EXPORT REGULATIONS
10.1 APT's Product Information Package as well as supplies to be performed under
this Agreement are subject to governmental export regulations.
Consequently, these obligations may be subject to the approval by the
respective governmental authorities.
10.2 For presentation to the German Export Control Authorities Siemens declares
that all APT Product Information Package received by Siemens from APT are
intended for manufacturing of Wafers and Good Die exclusively for APT.
Siemens declares not to export such APT Product Information Package to
third countries without approval of the competent German Export Control
Authorities.
11. ASSIGNMENT
11.1 Neither party shall delegate any obligations under this Agreement or assign
this Agreement or any interest or rights hereunder without the prior
written consent of the other, except incident to the Sales or transfer of
substantially all of such party's business.
11.2 APT may. have fulfilled its obligations covered under this Agreement by its
Subsidiaries.
12. TERM AND TERMINATION
12.1 This Agreement becomes effective with the execution hereof by both parties
and continues to be valid for an unlimited period of time. Each party may
terminate the Agreement with 2 years prior written notice to the end of a
calendar year unless mutually agreed to reduce this notice time. Siemens
cannot terminate this contract before 5 years after 1" production delivery
unless mutually agreed.
12.2 This Agreement may be terminated immediately by one party if the other
party
(i) breaches any material provision of this Agreement and does not
remedy such breach within thirty (30) days of notice of breach;
or
(ii) becomes insolvent or otherwise subject to insolvency procedures;
(iii) comes under outside control, i. e. 50% or more of the
shareholders' voting rights are held directly or indirectly by a
third party or third parties which are direct competitor of the
other party;
12.3 APT may terminate this Agreement if the Power MOS Die do not pass APT's
qualification criteria (Exhibit 5) no-sooner than 3 months after the
expected completion of qualification (Exhibit 5).
12.4 If Siemens terminates this Agreement according to Section 12.1 Siemens
shall be obliged to deliver to APT upon APT request during the period of
notice in addition to the
forecasted quantities of Wafers/Good Dies up to twice the quantity
forecasted for that period.
12.5 The provisions of Section 6, 8, 13 and 14 shall also apply after
termination of this Agreement.
13. ARBITRATION
13.1 Any differences or disputes arising from this Agreement or from agreements
regarding its performance shall be finally settled under the Rules of
Conciliation and Arbitration of the International Chamber of Commerce in
Paris (Rules) by three arbitrators appointed in accordance with the Rules.
The chairman of such arbitral tribunal shall be of the legal profession and
qualified to hold judgeship.
13.2 The place of arbitration shall be Munich. The procedural law of this place
shall apply where the rules are silent.
13.3 The arbitral award shall be substantiated in writing. The arbitral tribunal
also decide on the matter of costs of the arbitration.
13.4 The arbitration procedure shall be conducted in the English language.
13.5 If at the time when one party intends to initiate arbitration proceedings,
awards, decrees or judgements of the arbitration court agreed upon above
are not recognized and hence not enforceable without re-trial of the case
in the defendant's country e. g. owing to lack of reciprocity the plaintiff
(claimant) may by giving due written notice to the defendant bring the case
before an ordinary court competent in the defendant's country in lieu of
the arbitration proceedings foreseen above.
14. SUBSTANTIVE LAW
All disputes shall be settled in accordance with the provisions of this
Agreement and all other agreements regarding its performance, otherwise in
accordance with the substantive law in force in the Federal Republic of
Germany without reference to other law. The United Nations Convention on
Contracts for the International Sale of Goods of April 11, 1980 shall not
apply.
NOTICES
All notices required to be sent by either party under this Agreement will
be sent to the addresses set forth below or to such other address as may
subsequently be designated in writing:
If to APT:
Advanced Power Technology
000 X.X. Xxxxxxxx Xxxxxx
Xxxx, XX 00000 XXX
If to Siemens:
Siemens Aktiengesellschaft
Rechtsabteilung 2
Xxxxxxxxxxxxxx 00
00000 Xxxxxxx
Xxxxxxx Xxxxxxxx of Germany
The addresses for APT and Siemens for notices and communications concerning
purchase orders, technical problems, etc. shall be fixed separately in
writing between APT and Siemens.
ENTIRE AGREEMENT
This document is the entire understanding between Siemens and APT respect
to the subject matter hereof and merges all prior agreements, dealings, and
negotiations. The terms of this Agreement shall govern the Sales and
purchase of Wafers and Good Die. Any terms or conditions printed on the
face or the reverse-side of the purchase order sheet or the APTs
Acknowledgement form shall neither be part of this Agreement nor constitute
the terms and conditions of the Sales of the Wafers and Good Die even in
case such purchase order sheet or APT's acknowledgement form is signed and
returned by APT to Siemens or Siemens to APT, unless both parties hereto
expressly agree in writing to include any such terms or conditions in this
Agreement. The parties recognize that the Exhibits to this Agreement will
have to be amended or exchanged, as the case may be, from time to time. No
modification, alternation or amendment shall be effective unless in writing
and signed by both parties. No waiver of any breach shall be held to be a
waiver of any other or subsequent breach.
AGREED TO:
Advanced Power Technology Siemens Aktiengesellschaft
By: s/s By: s/s
------------------- ----------------------------
Name Name
Title Title
Date: Feb 11, 1998 Date:
LIST OF EXHIBITS
EXHIBIT:
1 List of Power MOS Die to be manufactured by Siemens
2 Product information package
3 Specification of Processes
4 Quality and reliability specifications and requirements
5 Qualification plan and procedure
6 Volume commitments and forecast/order procedure
7 Two-phase business model (Wafer/Good Die based) and pricing
EXHIBIT 1: APT POWER MOS V MOSFET DIE TYPES / PRODUCTS
MOSFET MASK MOSFET TOTAL DIMENSION, MILS AREA DIMENSION, MM. AREA
DIE TYPE SETS EPI VOLTAGE PRODUCTS X Y SQ. MILS X Y SQ. MM
------------------------------------------------------------------------------------------------------------------
515 1 400, 500, 600 3 240 275 66.000 6.1 7.0 43
596 1 800 1 262 298 78,076 6.7 7.6 50
566 1 400, 500, 600 3 240 357 85,680 6.1 9.1 55
576 1 800, 1000, 1200 3 270 349 94,230 6.9 8.9 61
5F6 1 100, 200, 300 3 254 371 94,234 6.5 9.4 61
546 1 400, 500, 600 3 254 371 94,234 6.5 9.4 61
5K6 1 100 ,200, 300 3 270 416 112,320 6.9 10.6 72
556 1 400, 500, 600 3 270 416 112,320 6.9 10.6 72
586 1 800, 1000, 1200 3 270 416 112,320 6.9 10.6 72
5F7 1 400, 500 ,600 3 364 368 133,952 9.2 9.3 86
547 1 100, 200, 300 3 362 515 186,430 9.2 13.1 120
527 1 400, 500, 600 3 362 515 186,430 9.2 13.1 120
557 1 800, 1000, 1200 3 362 515 186,430 9.2 13.1 120
538 1 100, 200, 300 3 555 700 388,500 14.1 17.8 251
528 1 400, 500, 600 3 555 700 388,500 14.1 17.8 251
548 1 800, 1000, 1200 3 555 700 388,500 14.1 17.8 251
EXHIBIT 2 Product information package
The product information package shall include
- Test programs
- Data base
for each Die type.
EXHIBIT 3 SPECIFICATION OF PROCESSES
1) APT Lot traveler
2) APT Processing specifications
3) APT Material specifications
4) APT Equipment list
5) APT Equipment specifications
6) APT Control and Inspection specifications
7) APT Mask Tooling, procurement and inspection
specifications
8) APT Critical dimension specifications
9) APT Wafer process Inspection specifications
10) APT Design rule specifications
EXHIBIT 4
Quality and reliability specifications and requirements
These specifications will be per Siemens internal regulations (to made available
to APT upon request) and per Exhibit 3 as applicable.
EXHIBIT 5 Qualification plan and procedure
1. Both parties agree that development lots will be processed in order to
establish a stable process.
2. Both parties agree a stable process is defined as meaning achievement of
yields minimum or equal to [ * ] those specified at the [ * ] wafer start per
week level.
3. Qualification lots shall consists of [ * ] lots minimum, [ * ] wafers each
of the following die types:
527-050
557-100
528-050
548-100
4. Technology transfer:
Target products for technology transfer and qualification will be as defined in
item 3 above. Expected to proceed in 6 phases as follows:
Phase 1 - April 98 (3 days) - Training by APT personnel
This will cover all process steps including process requirements and results,
equipment requirements and modifications (if required), and special test
vehicles that can "pre-qualify" selected processes before the actual runs are
processed.
Phase 2 - May 98 (2 weeks) - Training of Siemens engineers at APT
This will include the key account manager and a minimum of 2 and maximum of 4
Siemens engineers.
Phase 3 - June - Aug 98 - Prototype runs produced by Siemens
APT engineers will be available at Siemens facility as needed to complete
process transfer and training.
Phase 4 - Sept 98 - Qualification runs processed
Products see item 3
Phase 5 - Oct - Dec 98 - Qualification
APT will package die from the qualification runs and complete qualification
testing at APT expense.
Phase 6 - Jan 99 - Production starts
Siemens qualified to produce MOSFETs for all die sizes and voltages by December
31, 1998.
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
EXHIBIT 6 VOLUME COMMITMENTS AND PRICING
6.1. QUALIFICATION COST APT recognizes and appreciates the fact that Siemens
will need to invest approximately [ * ] to install and qualify the APT
process in the Villach Wafer Fab. Therefore APT agrees; that in case APT
terminates the contract and at this time the total Wafers received over the
life of the contract (after Qualification) are less than [ * ], APT will pay
[ * ] for every Wafer less than [ * ].
6.2. LOST OPPORTUNITY CHARGES
The following table shows quantities. The 1st 12 months is the period starting
with the 1st production shipment of wafers to APT following qualification. APT
accepts that APT will pay the processing price in Exhibit 7 for all wafers below
the minimum quantity not requested to be delivered to APT for the first two
twelve month periods (fixed) below. The minimum quantities for the remaining
periods are forecasted volumes. Prior to the end of the second twelve month
period and on an annual basis thereafter, APT and Siemens will agree to the
minimum wafer quantity (forecasted quantity becomes fixed quantity) of the
following twelve month period and APT will subject to lost opportunity charges
if the minimum quantities are not met.
Time zero 1st 2nd 3rd 4th 5th 6th
12 Month 12 Month 12 Month 12 Month 12 Month 12 Month
fixed fixed fixed fixed fixed fixed
1st Production [*] [*]
shipment [*] [*]
minimum wafer quantity [*] [*]
6.3. KEY ACCOUNT MANAGER Siemens will have a dedicated person "key account
manager" for APT. This person will have a comprehensive process engineering
background, be familiar with Siemens Wafer fabrication processes and will be
selected by Siemens and approved by APT. APT agrees that as long as the Wafer
volume is less than [ * ] Wafer per week the cost of [ * ] will be shared [ * ]
between APT and Siemens. Invoiced to APT on a monthly basis. With volumes
equal and higher than 200 Wafer per week, this person will be paid fully from
Siemens.
6.4. LOTSIZE / ROLLING FORECAST Siemens will produce the APT orders in lots
with [ * ] Wafer per lot predominantly. Siemens accepts that for a minority of
products this lotsize is not reasonable. Therefore Siemens will produce as a
guideline approximately [ * ] of all wafer starts as [ * ] wafer lot sizes.
APT will provide a rolling forecast for every Die Type as specified in Exhibit 1
for the next 12 month on a monthly basis to Siemens. This forecast will be in
the form of a Wafer start schedule. The start schedule variance allowance for
the weeks following the week that the forecast is sent will be as follows:
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
WAFER STARTS First Next Next
1 WEEK 2-8 WEEKS 9-13 WEEKS
---------------------------------------------
Total Volume fixed -+15% -+40%
Device fixed variable* variable*
WAFER OUTS First Next Next
7 WEEKS 8-13 WEEKS 14-18 WEeks
Total Volume fixed -+15% -+40%
Device fixed variable* variable*
*Variable within Siemens epi inventory and Xxxxxx constraints. APT will work
closely with the Key Account Manager to optimize levels and Xxxxxx communication
to provide for the maximum flexibility.
EXHIBIT 7 TWO PHASE BUSINESS MODEL AND PRICING
--------------------------------------------------------------------------------
Siemens will offer prices per good die. This price depend on the starting
material, the volume per year and the chipsize. The Wafersize is 6 inch. The
lotsize is 50 wafers per lot.
7.1. Wafersize
It is the intent of both, APT and Siemens to manufacture on 6 inch Wafer.
However, APT has a concern that making such a large change from APT current
production on 4 inch wafers to 6 inch wafers may have some unexpected technical
problems due to the large Wafer size. Siemens has strong confidence that the
transfer to 6 inch wafers can be handled within the required schedule. If there
is unexpected technical delays due to the 6 inch wafers which may cause
substantial delays in production and which can be remedied using 5 inch wafers
then it may be necessary to manufacture on 5 inch wafers on an interim basis
until 6 inch technical problems are worked out.
APT agree to the following: APT agrees to pay for this additional costs
(approximately [ * ]) and accept 5 inch die cost which are [ * ] higher than 6
inch die cost, if APT requests 5 inch wafers. If there are technical
difficulties on 6 inch wafers then Siemens will produce wafers on 5 inch at
the same die cost as on 6 inch until 6 inch production can be realized and
APT will not be required for this additional costs (approximately [ * ]).
7.2. TWO-PHASE BUSINESS MODEL
The price for 6 inch die is split in a two-phase business model: Phase 1
takes place as long as the Wafer starts per week is lower than [ * ] wafers.
In this phase Siemens will be paid for every shipped Wafer. Phase 2 starts
with volumes higher than [ * ] Wafer starts per week. Here Siemens will be
paid for every good die, delivered to APT. Inside this phase the price is
split into 4 price breaks:
[ * ] Wafers per week
[ * ] Wafers per week
[ * ] Wafers per week
[ * ] Wafers per week
The relevant price break is in connection with the minimum volume as specified
in Exhibit 6. If by the end of the year, the cumulated volume was higher than
specified in Exhibit 6, Siemens will credit the difference to APT. In case that
the cumulated volume was lower than specified in Exhibit 6, lost opportunity
charges specified in Exhibit 6 have be paid by APT.
The Pricing table for each MOS Chip is listed below. APT understands and accepts
that Siemens cannot commit the price for the starting material delivered from
Xxxxxx XX, a German corporation. Therefore only the processing price is fixed,
the price for the starting material is only a indication for 500V chips. It can
be fixed only after final quotation from Xxxxxx XX, Germany. Siemens and APT
will cooperate to get the best price for the starting material.
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PRICETABLE
------------------------------------------------------------------------------
1) Cost for starting material is only a indication. Real cost can be fixed
after Xxxxxx has offered.
2) based on a 6 inch Wafer
WSPW = Wafer Starts per Week
DIE SIZE: 43mm(2) DIE TYPE: 515
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 51mm(2) DIE TYPE: 596
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 56mm(2) DIE TYPE: 566
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PRICETABLE
-------------------------------------------------------------------------------
1) Cost for starting material is only a indication. Real cost can be fixed
after Xxxxxx has offered.
2) based on a 6 inch Wafer
WSPW = Wafer Starts per Week
WSPW = Wafer Starts per Week
DIE SIZE: 61mm(2) DIE TYPE: 546
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 56mm(2) DIE TYPE: 566
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 61mm(2) DIE TYPE: 5F6
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PRICETABLE
-------------------------------------------------------------------------------
1) Cost for starting material is only a indication. Real cost can be fixed
after Xxxxxx has offered.
2) based on a 6 inch Wafer
WSPW= Wafer Starts per Week
WSPW = Wafer Starts per Week
DIE SIZE: 73mm(2) DIE TYPE: 556
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 73mm(2) DIE TYPE: 5K6
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 73mm(2) DIE TYPE: 586
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PRICETABLE
--------------------------------------------------------------------------------
1) Cost for starting material is only a indication. Real cost can be fixed
after Xxxxxx has offered.
2) based on a 6 inch Wafer
WSPW = Wafer Starts per Week
WSPW = Wafer Starts per Week
DIE SIZE: 86mm(2) DIE TYPE: 5F7
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 121mm(2) DIE TYPE: 557
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 121mm(2) DIE TYPE: 527
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PRICETABLE
-------------------------------------------------------------------------------
1) Cost for starting material is only a indication. Real cost can be fixed
after Xxxxxx has offered.
2) based on a 6 inch Wafer
WSPW = Wafer Starts per Week
WSPW = Wafer Starts per Week
DIE SIZE: 121mm(2) DIE TYPE: 547
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
WSPW = Wafer Starts per Week
DIE SIZE: 251mm(2) DIE TYPE: 528
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
WSPW = Wafer Starts per Week
DIE SIZE: 251mm(2) DIE TYPE: 538
[*] [*] [*] [*] [*]
Starting material 500V 1) [*] [*] [*] [*] [*]
Processing price [*] [*] [*] [*] [*]
Price per WAFERSTART [*] [*] [*] [*] [*]
Price per Wafer 2) [*] [*] [*] [*]
Yield Waferfab [*] [*] [*] [*] [*]
Optical-/testyield [*] [*] [*] [*]
Good die per Wafer 2) [Price only per] [*] [*] [*] [*]
[shipped wafer]
Price per good die [*] [*] [*] [*] [*]
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
AMENDMENT TO THE AGREEMENT FOR WAFER PRODUCTION AND TESTING BETWEEN ADVANCED
POWER TECHNOLOGY AND SIEMENS AS OF FEBRUARY 11, 1998
This Amendment ("Amendment") is entered into as of the 19th day of July
2000
By and between
Infineon Technologies AG, a German corporation located at Xxxxxxxxxxxx
00, 00000 Xxxxxxx, Xxxxxxx Xxxxxxxx of Germany (referred to as "INFINEON"),
And
Advanced Power Technology, Inc., a Delaware corporation located at 000
X.X. Xxxxxxxx Xxxxxx, Xxxx, Xxxxxx, XXX (referred to as "APT").
WHEREAS, INFINEON's predecessor, Siemens Aktiongesellschaft, (referred
to as "SIEMENS") and APT have entered into an Agreement for Wafer Production and
Testing on February 11, 1998; and
NOW, THEREFORE the parties agree to partly amend the Agreement and
agree as follows:
1. INFINEON and APT agree that, while they intend to keep a very open
communication between their respective people, as has been the case since the
beginning of the cooperation between the two companies, they will also establish
a more formal set of communications for all matters relative to these
agreements. Such communications will be directly between INFINEON's Xx. Xxxxx
and APT's Mr. Sireta. They will include monthly telephone calls to review the
state of the business relationship and forecasts and plans for the future.
2. INFINEON and APT reconfirm their mutual commitment to a continued
strong cooperation between the two companies, as governed by the two agreements
between them and taking into account the situation of their respective
businesses.
3. INFINEON and APT agree that APT will consider a capital investment
in INFINEON's wafer fab to help relieve capacity bottle necks, or increase
capacity or capability and that INFINEON will consider such investment.
4. INFINEON assumes liability for any personal injury for which it is
found responsible without limitation. If found responsible for property damages
of APT, INFINEON shall indemnify APT for expenses incurred for restoration of
the damaged property up to a maximum amount of DM 1 Million per damaging event.
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PAGE 1 - AMENDMENT
Apart from warranties and liabilities expressly stipulated in the Agreement,
INFINEON disclaims all liability regardless of the cause in law, in particular
the liability for indirect or consequential damages arising from interrupted
operation, loss of profits, loss of information and data, unless in cases of
gross negligence, intent, lack of assured characteristics or in any cases where
the liability is mandatory at law.
5. Committed Capacity
INFINEON agrees to commit the following capacity of wafer starts per
week to APT:
[*]
6. Art. 4.1 and Art. 4.2 of the Agreement will be amended as
follows:
For all quantities purchased by APT, the price for good Dies will be
fixed through [*] at the price level as of the date of signature of this
Amendment for the capacity committed in Art. 5, based on the [*] wafers/week of
Exhibit 7 of the Agreement and on the wafer transfer cost agreed as of this date
("Fixed Price").
The provision concerning the price splitting - Exhibit 7.2 of the
Agreement - is hereby expressly amended. The Fixed Price is a combined price of
starting material and wafer processing.
Parties agree to enter into annual negotiations concerning prices and
volumes starting with the annual period starting in [*]. In case no agreement
can be achieved, the prices and volumes then in existence will continue to
apply.
7. Termination
Art. 12.1 of the Agreement is hereby amendment as follows:
Each party may terminate the Agreement with two years prior written
notice to the end of a calendar year unless mutually agreed to reduce this
notice time. Infineon cannot give notice before the end of the calendar year of
2002.
Art. 12.4 of the Agreement is hereby expressly abolished.
8. Penalty
In case of material breach of the confidentiality clause as stipulated
in Art. 8 of the Agreement, each party agrees without the other party
substantiating any damage occurred to pay the penalty of $5,000, notwithstanding
the other party's right to claim damages exceeding aforementioned amount if it
may so prove.
9. Infineon hereby expressly gives its consent to have this
Amendment filed with the US SEC.
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PAGE 2 - AMENDMENT
10. Other Changes
The price for wafers out of risk production as stated in Art. 2.3.3
will be amended to be the Fixed Price as agreed in Article 6.
Prices for the wafers as stated in Art. 2.3.4 will be amended to be the
Fixed Prices.
Art. 3.1 of the Agreement will be abolished. The forecasts in Art. 3.5
have to stay within the committed capacity. In case of lost opportunity charges
as stipulated in Art. 3.4, instead of paying the processing price for all wafers
below the minimum quantity, APT will pay [*] of the Fixed Price.
Art. 3.3 will be amended so that the price of such wafers and/or good
Die will be [*] of the Fixed Prices for the Committed Capacity effective at that
time.
Art. 3.13 shall be amended to mean that the Fixed Price shall be paid.
Representative of Representative of
Infineon Technologies AG Advanced Power Technology, Inc.
Federal Republic of Germany U.S.A.
(Signature)_____________________ (Signature)_____________________
Name: Xx. Xxxxx Name: Xxxxxxx Xxxxxx
Position: Vice President and General Position: President and Chief Executive
Manager, Industrial Power Officer
(Signature)_____________________
Name: Xx. Xxxxxxxxx Xxxxx
Position: Senior Director, Industrial Power
[*] = Material has been omitted pursuant to a request for confidential
treatment, and such material has been filed separately with the SEC.
PAGE 3 - AMENDMENT
