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Exhibit 10.43
EXECUTION COPY
ASSEMBLY AND TEST SERVICES AGREEMENT (ONYANG)
This Assembly and Test Services Agreement ("Agreement") is made and
entered into this 13th day of April 1999 (the "Effective Date") by and between
Samsung Electronics Co., Ltd., a corporation organized under the laws of the
Republic of Korea ("Samsung"), and Xxxxxxxxx Korea Semiconductor Ltd., a
corporation organized under the laws of the Republic of Korea ("Fairchild").
Either Samsung or Fairchild may be referred to herein as a "Party" or together
as the "Parties," as the case may require.
RECITALS
WHEREAS, Samsung and Xxxxxxxxx Semiconductor Corporation have entered
into a certain business transfer agreement dated as of December 20, 1998
("Business Transfer Agreement") and Xxxxxxxxx Semiconductor Corporation has
assigned its rights thereunder to Fairchild, pursuant to which Fairchild will
acquire all of the Conveyed Assets and assume all of the Assumed Liabilities
(each as defined in the Business Transfer Agreement) upon the terms and
conditions set forth in the Business Transfer Agreement; and
WHEREAS, the Parties hereto desire to enter into an agreement as
contemplated and required by the Business Transfer Agreement whereby Samsung
will provide certain assembly and test services to Fairchild at its Onyang,
Korea facilities following the Closing (as defined in the Business Transfer
Agreement), in accordance with the terms and conditions of this Agreement; and
WHEREAS, the execution and delivery of this Agreement is required by
the Business Transfer Agreement and is a condition to the closing of the
transactions contemplated thereunder.
NOW, THEREFORE, in consideration of the premises and the mutual
covenants and undertakings contained herein, the Parties hereto, intending to be
legally bound hereby, do agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Definitions. Unless otherwise defined herein, capitalized
terms used herein shall have the meaning ascribed to such term in the Business
Transfer Agreement.
"Device(s)" shall mean Xxxxxxxxx'x discretes and integrated circuits to
be assembled and/or tested by Samsung hereunder.
"Die(s)" shall mean the silicon die material, consigned by Fairchild to
Samsung in
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wafer form, from which Devices are assembled.
"Facilities" shall mean Samsung's assembly and test facilities,
located either at Onyang, Korea or at any subcontractor's workplace.
"Past Practices" shall mean the practices of Samsung's assembly and
testing services division at the Facilities and the Business occurring during
calendar year 1998, including, without limitation, practices relating to SPC
data, yield data, 8D reports, technical analysis, PQA support, failure analysis,
quality surveys and customers.
ARTICLE II
GENERAL REQUIREMENTS
Section 2.1 General Requirements
(a) Samsung shall provide assembly and test services hereunder
consistent with Past Practices at the Facilities.
(b) Fairchild shall consign to Samsung, free of charge, Dies
consistent with Past Practices and Xxxxxxxxx'x technical specifications on a CIF
Onyang, Korea Facilities basis. Samsung shall not be liable for any defective
Device to the extent such defect is a result of a defective Die supplied by
Fairchild.
ARTICLE III
PACKAGE/PROCESS CHANGES NOTIFICATION
Section 3.1 Package/Process Changes Notification
(a) If Samsung proposes to make any change affecting the
assembly processes, materials and/or suppliers affecting the Devices, Samsung
shall provide at least thirty (30) days prior written notice to Fairchild of the
intended change for Xxxxxxxxx'x consent, which shall not be unreasonably
withheld or delayed. Samsung shall be responsible for any cost increase arising
from any such change. Fairchild shall not be responsible for any loss incurred
as a result of Samsung's failure to timely provide notification of such change.
(b) Fairchild shall provide at least thirty (30) days prior
written notice to Samsung of any proposed change in Die design, layout
modification, fabrication process, test programs or other changes which may
impact upon Samsung's processing, handling or assembly of Devices. Fairchild
shall be responsible for any cost increase arising from any such change. Samsung
shall not be responsible for any assembly or test loss incurred as a result of
Xxxxxxxxx'x failure to provide timely notification of such change.
(c) Subject to the business requirements of both Parties, the
Parties agree to use their Best Efforts, consistent with Past Practices, to
promptly accommodate requests for urgent services or deliveries hereunder.
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(d) Fairchild reserves the right to make changes to the
specifications that reflect improvements, developments or other technically
desired changes in the Devices. Fairchild shall notify Samsung of such requested
changes and Samsung shall respond within thirty (30) working days regarding the
feasibility, schedule and anticipated costs of implementing such change orders.
Once the Parties have agreed in writing to the engineering changes, schedule and
prices thereof, Samsung shall promptly take all measures required to incorporate
such change orders into the Devices. If either Samsung or Fairchild desires to
make any changes to the specifications, that Party shall notify the other Party
in writing and negotiate the changes in good faith, including any changes in
prices required by such modifications. A modification to any of the foregoing
will be binding only when a writing to which such modification is attached and
has been signed by both Parties.
ARTICLE IV
INSPECTION AND WARRANTY
Section 4.1 Inspection. Fairchild shall inspect the Devices within
five (5) days after delivery at its facility. Upon completion of such
inspection, Fairchild shall promptly report any damaged or defective Device in
any shipment. Fairchild reserves the right to reject any damaged or defective
Device.
Section 4.2 Express Warranty. Samsung warrants that the services
provided to Fairchild hereunder shall conform to all applicable specifications
and processes (or, in the absence of specifications, generally accepted industry
standards) consistent with Past Practices for assembly and/or test services and
shall be free from defects in material and Samsung's workmanship. Such warranty,
however, shall not apply to the design or operation of the Fairchild supplied
Dies incorporated in the Devices. This warranty is limited to a period of one
(1) year from the date of delivery to Fairchild. If, during the one year period:
(a) Samsung is notified promptly upon discovery in writing by
a reasonably detailed description of any such defect in any Device; and
(b) Samsung, upon being reasonably satisfied with such
description, requests Fairchild to return such Device, and Fairchild returns
such Device to the Facilities at Xxxxxxxxx'x expense for inspection; and
(c) Samsung's examination reveals that the Device is
defective, or if the Device is indeed defective, and the Device DOES NOT MEET
THE APPLICABLE specifications or is defective in materials or Samsung's
workmanship and such problems are not caused by accident, abuse, misuse,
neglect, improper storage, handling, packaging or installation, repair,
alteration or improper testing or use by someone other than Samsung, then
Samsung shall promptly credit Fairchild for such defective Device. Samsung shall
reimburse Fairchild for the transportation charges paid by Fairchild in
returning such defective Devices to Samsung. If such defective Devices were
caused by defective Die(s) supplied by Fairchild, Samsung shall be free from any
liabilities.
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Section 4.3 Disclaimer. THE WARRANTY SET FORTH IN SECTION 4.2
CONSTITUTES SAMSUNG'S EXCLUSIVE LIABILITY, AND XXXXXXXXX'X EXCLUSIVE REMEDY, FOR
ANY BREACH OF WARRANTY. EXCEPT AS SET FORTH IN SECTION 4.2, SAMSUNG MAKES AND
FAIRCHILD RECEIVES NO WARRANTIES ON THE SERVICES PERFORMED HEREUNDER, EXPRESS,
IMPLIED, STATUTORY OR OTHERWISE, AND SAMSUNG SPECIFICALLY DISCLAIMS ANY WARRANTY
OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
ARTICLE V
FORECASTS AND ORDERS
Section 5.1 Forecast. (a) All forecasts and demand for assembly and
testing services shall be consistent with Past Practices. Fairchild shall
provide a three (3) month rolling forecast to Samsung no later than ten (10)
days prior to the end of each month in terms of the volume of Dies and Devices,
respectively. In the event that actual orders from Fairchild for any given first
month of the forecast do not meet, in volume, the most recent forecast provided
by Fairchild for such month (the "Minimum Monthly Commitment"), Fairchild
shall, within thirty (30) days after the end of such month, pay to Samsung an
amount equal to the product of (x) the number of additional Devices which, if
ordered, would have satisfied the Minimum Monthly Commitment, multiplied by (y)
the price per Device, minus material costs, that Fairchild would have been
obligated to pay for the provision of assembly and testing services hereunder.
(b) Fairchild may change the forecast for any month in
accordance with the following table, provided that the maximum request of
Fairchild shall not exceed the assembly and test capacity of the Facilities
provided in accordance with Past Practices. Any changes outside of those
permitted under the following table must be by written agreement of the Parties.
Monthly Period in
the Forecast Permitted Changes
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First No change permitted
Second +/- 10%
Third +/- 15%
Section 5.2 Orders. All requests for assembly and test services
between Samsung and Fairchild shall be initiated by Xxxxxxxxx'x issuance of
written service request orders with reasonable lead time sent by either
registered mail or facsimile followed by mail. Such service request orders shall
be submitted to Samsung on or before the tenth (10th) day prior to the end of
each month, describing the quantity and type of the products and shipping and
invoicing instructions requested by Fairchild for delivery the following month.
By written agreement of the Parties, service request orders may also be sent and
acknowledged by electronic data exchange or other mutually satisfactory system.
In the event of any conflict between the terms and conditions of this Agreement
and either Party's service request order, acknowledgment, or similar forms, the
Parties shall resolve such conflict in good faith.
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Section 5.3 Assured Capacity. Samsung shall dedicate assembly and test
capacity at the Facilities in accordance with Past Practices.
Section 5.4 Minimum Annual Order Volume. Annual orders from Fairchild
of Devices utilizing the packaging types set forth on Schedule 5.4 hereto shall
exceed eighty (80) percent, in volume, of the aggregate assembly and test
capacity of the Facilities set forth in Schedule 5.4 hereto. In the event that
annual orders from Fairchild do not exceed eighty (80) percent, in volume, of
such capacity, Fairchild shall, within thirty (30) days after the end of such
annual period, pay to Samsung an amount equal to the revenue which would have
been achieved had eighty (80) percent of the capacity been utilized, less an
amount reflecting variable costs attributable to such unutilized capacity.
ARTICLE VI
PRICES AND PAYMENT
Section 6.1 Prices. (a) Set forth in Schedule 6.1 hereto are the
prices, expressed in U.S. Dollars and subject to Section 6.1 (b), that
Fairchild shall pay to Samsung for assembly and test services hereunder during
the term of this Agreement. Such prices are on an EX WORKS Onyang, Korea
Facilities basis. The Parties acknowledge and agree that the prices in Schedule
6.1 hereto reflect the sum of Samsung's standard manufacturing costs, material
costs, interest and general and administrative expenses for the assembly and
test services hereunder in Korean Won, such costs, interest and expenses being
converted into U.S. Dollars at the exchange rate of 1200 Korean Won: 1 U.S.
Dollar.
(b) After the first anniversary of the Effective Date, the
prices set forth in Schedule 6.1 shall be reduced by 5% (the "Second Year
Prices") and after the second anniversary of the Effective Date, the Second Year
Prices shall be reduced by 5%. Any adjustment hereunder shall apply to the
prices beginning with the first calendar month following the first and second
anniversary of the Effective Date, respectively.
Section 6.2 PAYMENT. Prices shall be paid in U.S. Dollars by
telegraphic transfer. Payment terms are net thirty (30) days from the date of
tax invoice. Samsung may invoice Fairchild for complete or partial lots (kits),
and miscellaneous services may be invoiced separately.
Section 6.3 Miscellaneous Charges and Taxes. Fairchild shall pay, in
addition to the prices quoted or invoiced, the amount of any special handling
charges if such charges were paid by the Business in Past Practices. Fairchild
shall also pay all sales, use, VAT, excise or other similar tax applicable to
the sale of goods or provision of services covered by this Agreement, or
Fairchild shall supply Samsung with an appropriate tax exemption certificate.
Section 6.4 Interest on Late Payments. If Fairchild fails to make any
payment due hereunder by the date it is due, Fairchild shall pay to Samsung, in
addition to the amount of such payment due, a late charge of one-twentieth of
one percent (1/20%) of the outstanding amount per day from the due date of the
payment until finally paid.
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Section 6.5 Prorated Charges. Should Fairchild terminate any order
prior to process completion, Fairchild shall be charged a prorated portion of
the full price of such Device subject to a negotiated adjustment, based on the
process termination point, including handling incurred by Samsung in processing
the total quantity started in assembly.
Section 6.6 Additional Services. For assembly and test services for
Devices not reflected in Schedule 6.1, terms shall be on an individual purchase
order basis at prices to be negotiated by the Parties; provided, however, that
for assembly and test services not reflected in Schedule 6.1 but which were
provided in Past Practices, the Parties shall negotiate in good faith to
determine prices for such services using a methodology consistent with that used
to determine the prices set forth in Schedule 6.1.
ARTICLE VII
DELIVERY
Section 7.1 Delivery. Samsung shall deliver assembled and/or tested
Devices on the delivery dates agreed to by the Parties. Delivery of 90% or more
of the volume of each Device published in the order and made within -7/+2 days
of the delivery date(s) agreed to by the Parties shall constitute timely
delivery. Delivery will be on an EX WORKS Onyang, Korea Facilities basis, at
which point delivery shall be deemed to be made and risk of loss and title shall
pass to Fairchild. Deliveries will be subject to incoming inspection as set
forth in Section 4.1.
Section 7.2 Late Delivery. If Samsung fails to timely deliver a
Device in accordance with Section 7.1, Fairchild shall have the right in its
sole discretion to cancel all or any part of the purchase order pertaining to
such Device. Any obligation of Fairchild under any commitment to Samsung under
this Agreement associated with such cancelled purchase order shall be discharged
in full and Fairchild shall have no liability whatsoever to Samsung thereof.
Section 7.3 Packing. All Devices delivered pursuant to the terms of
this Agreement shall be suitable, packed for shipment in containers specified by
Fairchild, marked for shipment to Xxxxxxxxx'x address set forth in the
applicable purchase order and delivered to a carrier or forwarding agent chosen
by Fairchild. Should Fairchild fail to designate a carrier, forwarding agent or
type of conveyance, Samsung shall make such designation in conformance with its
standard shipping practices. Delivery will be EX WORKS Onyang, Korea Facilities
basis, at which time risk of loss and title shall pass to Fairchild. Shipments
will be subject to incoming inspection as set forth in Section 4.1.
Section 7.4 Lot Integrity. To facilitate the inspection of deliveries
to Fairchild, lot integrity shall be maintained on all such deliveries, unless
specifically waived by mutual agreement of the Parties.
Section 7.5 Cancellation. Subject to the provisions of Section 5 and
its other obligations hereunder, Fairchild may cancel any purchase order upon 30
days written notice
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prior to the commencement of manufacturing without charge, provided that
Fairchild reimburses Samsung for labor costs actually incurred by Samsung and
the cost of any raw materials purchased for such order to the extent such raw
materials are not used for any other products.
Section 7.6 Production Stoppages. Fairchild may request that Samsung
stop production of Devices in process for Xxxxxxxxx'x convenience, and Samsung
shall consider stopping depending on the point of process. In such event,
Fairchild shall pay for all Devices at the agreed price, subject to a negotiated
adjustment based upon the degree of completion of the Devices and whether or not
Samsung is able to use the unfilled capacity. Samsung shall, if reasonably
practicable, restart production of stopped Devices within a reasonable time
after receipt of a written request from Fairchild, subject to Xxxxxxxxx'x
payment of any additional expenses incurred.
Section 7.7 Partially Completed Inventory. In the event that
Fairchild elects to maintain an inventory of partially finished Devices,
ownership of the partially finished Devices shall pass to Fairchild when they
reach the holding point defined by the relevant process flow. Samsung shall
invoice Fairchild for such Devices, but they shall be stored under clean-room
conditions and remain in Samsung's processing WIP management system. Samsung
shall inform Fairchild of the number and types of these Devices remaining in
inventory at the end of each month. Further, the electronic records and physical
inventory shall be available for inspection by Fairchild at any time. Samsung
shall credit Fairchild with the amount previously invoiced for any such Devices
at such time as they are restarted in the process flow.
ARTICLE VIII
QUALITY CONTROL; INSPECTION; AND RELIABILITY
Section 8.1 Specifications. Samsung shall assemble and test Devices
in accordance with the specifications for the applicable Device. Prior to
shipment, Samsung shall perform the electrical parameter testing and other
inspections specified to be performed by it in the applicable specifications on
each Device lot manufactured. Samsung shall only ship those Device lots that
successfully pass the applicable specifications. Samsung shall electronically
provide Fairchild with the electrical test data specified in the applicable
specifications.
Section 8.2 Certification. Samsung warrants that it will maintain
IS09002/IS014000 certification throughout the term of this Agreement. Samsung
shall provide Fairchild notice of any audits and copies of any report or
correspondence relating to such or similar certifications.
ARTICLE IX
ON-SITE INSPECTION AND INFORMATION
Section 9.1 Inspection and EVALUATION. Samsung shall allow Fairchild
and/or Xxxxxxxxx'x customers to visit and evaluate the Facilities during normal
business hours as part of established source inspection programs, it being
understood and agreed between Fairchild and Samsung that Fairchild must obtain
the concurrence of Samsung for the scheduling of all such
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visits, which concurrence shall not be unreasonably withheld.
Section 9.2 Information. Upon Xxxxxxxxx'x written request, Samsung
will provide Fairchild with process control information, including but not
limited to: process and electrical test yield results, current process
specifications and conformance to specifications; calibration schedules and logs
for equipment; environmental monitor information for air, gases and DI water;
documentation of operator qualification and training; documentation of
traceability through Samsung's operation; and Samsung verification information.
ARTICLE X
PRODUCT ENGINEERING SUPPORT
Section 10.1 Engineering Cooperation. The Parties will cooperate in
allowing Fairchild employees to have reasonable access to the Facilities during
the term of this Agreement (the "Fairchild Engineering Team"), in order to
assist in Device developments and improvements. Samsung will provide reasonable
office space to the Fairchild Engineering Team, if required on a temporary basis
not to exceed thirty (30) days per occurrence, at no expense to Fairchild.
Should the Fairchild Engineering Team require long-term, dedicated office space,
Fairchild agrees to pay Samsung the overhead cost associated with such space.
The Fairchild Engineering Team will comply with all applicable Samsung
regulations in force at the Facilities and Fairchild hereby agrees to hold
Samsung harmless for any damages or liability caused by any member of the
Fairchild Engineering Team, which are attributable to (i) the negligence or
willful malfeasance of such member and (ii) any failure by such member to comply
with Samsung's regulations in force at the Facilities or with applicable law.
Section 10.2 Assistance. Samsung shall assist the efforts of the
Fairchild Engineering Team and provide Fairchild with reasonable and timely
support. Samsung shall reasonably assist Fairchild in any efforts to identify
any reliability problems that may arise in a Device. Fairchild shall correct
Device related problems and Samsung shall correct all process related problems.
ARTICLE XI
TERM AND TERMINATION
Section 11.1 Term. The term of this Agreement shall be three years
from the Effective Date. Fairchild shall have the right to renew the term for an
additional three years upon written notice to Samsung at least six (6) months
prior to the end of the initial term, provided, however, that upon renewal the
terms of this Agreement shall be subject to renegotiation. If the Parties should
fail to reach agreement on the renegotiated terms for the renewal period, then
this Agreement shall terminate upon the expiration of the initial term.
Section 11.2 Termination. This Agreement may be terminated (i) upon
mutual agreement of the Parties; (ii) by Fairchild at any time after the
two-year anniversary of the Effective Date upon ninety (90) days prior written
notice to Samsung; or (iii) by one Party sending a written notice to the other
Party of the termination of this Agreement, which notice specifies the reason
for the termination, upon the happening of any one or more of the following
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events:
(a) The other Party is the subject of a bankruptcy, corporate
reorganization or composition petition filed in a court of competent
jurisdiction, whether voluntary or involuntary, which petition in the event of
an involuntary petition is not dismissed within thirty (30) days; if a receiver
or trustee is appointed for all or a substantial portion of the assets of the
other Party; or if the other Party makes an assignment for the benefit of its
creditors; or
(b) The other Party fails to perform substantially any
material covenant or obligation, or breaches any material representation or
warranty provided for herein; provided, however, that no right of termination
shall arise hereunder until thirty (30) days after receipt of written notice by
the Party who has failed to perform from the other Party, specifying the failure
of performance, and said failure having not been remedied or cured during said
thirty (30) day period. For purposes of this section, material breach shall mean
a breach that would reasonably be expected to result in a serious adverse effect
on the non-breaching Party's business operations related to the Devices.
Section 11.3 Effect of Termination. Upon termination of this
Agreement, all rights granted hereunder shall immediately terminate and each
Party shall return to the other Party any property belonging to the other Party
which is in its possession. Xxxxxxxxx'x liability to Samsung for any costs or
expenses, including but not limited to materials, inventory and
work-in-progress, arising from any order placed by Fairchild with Samsung prior
to termination shall not be affected by the termination of this Agreement.
Nothing in this Article 11 is intended to relieve either Party of any liability
for any payment or other obligation existing at the time of termination. The
provisions of Sections 11.3, 12.1, 12.2, 14.1, 14.2, 14.3, 14.8, 14.10, 14.12,
14.17 and 14.18 shall survive the termination of this Agreement for any reason.
ARTICLE XII
CONFIDENTIALITY
Section 12.1 Confidentiality. Samsung and Fairchild agree that any
Confidential Information (as defined in the Confidentiality Agreement executed
between Samsung Electronics Co., Ltd. and Xxxxxxxxx Semiconductor Corporation on
September 18, 1998) each Party discloses, generates or otherwise acquires under
this Agreement, as the case may be, shall be treated in accordance with the
terms and conditions of the Confidentiality Agreement. Samsung and Fairchild
further agree that, in the event the Confidentiality Agreement expires prior to
termination or expiration of this Agreement, the terms and conditions of the
Confidentiality Agreement shall continue to apply with respect to any
Confidential Information disclosed, generated or otherwise acquired under this
Agreement.
Section 12.2 Ownership and Maintenance of Data. All records, data
files (and the data contained therein), input materials, reports and other
materials provided to Samsung by Fairchild and derivative data computed or
processed therefrom (collectively the "Data") pursuant to this Agreement after
the Effective Date will be the exclusive property of Fairchild, and Samsung
shall not possess any interest, title, lien or right in connection therewith.
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Samsung shall safeguard the Data to the same extent it protects its own similar
materials, but in no case in an unreasonable manner. Data shall not be used by
Samsung for any purpose other than in support of Samsung's obligations
hereunder. Neither the Data nor any part thereof shall be disclosed, sold,
assigned, leased or otherwise disposed of to third parties by Samsung or
commercially exploited by or on behalf of Samsung, its employees or agents. If a
Party determines that it is required to disclose any information pursuant to
applicable law or receives any demand under lawful process to disclose or
provide information of the other Party that is subject to the confidentiality
provisions hereof, such Party shall notify the other Party prior to disclosing
and providing such information and shall cooperate at the expense of the
requesting Party in seeking any reasonable protective arrangements requested by
such other Party. Subject to the foregoing, the Party that receives such request
may thereafter disclose or provide information to the extent required by such
law or by lawful process. Upon termination of this Agreement, Samsung shall
provide Fairchild reasonable access to retained Data for a period not to exceed
three (3) months following said termination whereupon, upon Xxxxxxxxx'x request,
such Data will be transferred to Fairchild at Xxxxxxxxx'x cost, except in the
event of termination by Fairchild under Section 11.2(b) by reason of Samsung's
material breach, in which case, such transfer will be made at Samsung's cost.
ARTICLE XIII
FORCE MAJEURE
Section 13.1 Force Majeure.
(a) A Party is not liable for a failure to perform any of its
obligations under this Agreement insofar as it proves that the failure was due
to force majeure.
(b) Force majeure within paragraph (a) above may result from
events including, but not limited to, (i) war, whether declared or not, riots,
acts of sabotage, explosions, fires, destruction of equipment/machines, or
inability to obtain raw materials, (ii) natural disasters, such as violent
storms, earthquakes, floods and destruction by lightning, (iii) the
intervention of any Governmental Authority, (iv) boycotts, strikes and lock-outs
of all kinds and work-stoppages and (v) any other cause, whether similar or
dissimilar to the foregoing, beyond the control of the Party claiming the
benefit.
(c) A Party seeking relief hereunder shall as soon as
practicable after the force majeure and its effects upon its ability to perform
became known to it give notice to the other Party of such force majeure.
ARTICLE XIV
MISCELLANEOUS
Section 14.1 Notices. All notices hereunder shall be sufficiently
given for all purposes hereunder if in writing and delivered personally, sent by
documented overnight delivery service or, to the extent receipt is confirmed,
telecopy or other electronic transmission
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service to the appropriate addresses or numbers as set forth below.
Notices to Samsung shall be addressed to:
Samsung Electronics Co., Ltd.
Samsung Main Xxxxxxxx
000, 0-Xx, Xxxxxxxx-Xx, Xxxxx-Xx
Xxxxx, Xxxxx
Attention: Director, Legal Department
Telecopy No.: 000-000-0000
with a copy to:
Xxx, Xxx & Xxx
Hankook Tire Xxxx. 000-00
Xxxxxx-xxxx, Xxxxxxx-xx
Xxxxx 000-000, Xxxxx
Attention: Kap-You Xxx
Telecopy No.: 000-0000-0000
or at such other address and to the attention of such other Person as Samsung
may designate by written notice to Fairchild.
Notices to Fairchild shall be addressed to:
Xxxxxxxxx Korea Semiconductor Ltd.
00-0, Xxxxxx-Xxxx
Xxxxx Xxxxxxxx
Xxxxxx Xxxx, Xxxxxxx Xxxxxxxx
Xxxxx
Attention: President
Telecopy No.: (00 00) 000-0000
with copies to:
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Xxxxxxxxx Semiconductor Corporation
000 Xxxxxxx Xxxxxx, M.S. 00-00
Xxxxx Xxxxxxxx, Xxxxx 00000
Attention: Xxxxxx X. Xxxxx
Telecopy No.: (01) (000) 000-0000
and to:
Xxx & Xxxxx
000 Xxxxx-Xxxx, Xxxxxxx-Xx
Xxxxx 000-000, Xxxxx
Attention: Y.J. Ro
Telecopy No.: (00 0)-000-0000
Or at such other address and to the attention of such other Person as Fairchild
may designate by written notice to Samsung.
Section 14.2 Indemnification. (a) Each Party (the "Indemnifying
Party"), at its own expense and cost, shall defend any suit, claim or legal
proceeding against the other Party (the "Indemnified Party") for the
infringement of patents or trademark, or claims based on allegations of
copyright, trade secret or other proprietary right infringement, by the
Indemnifying Party. The Indemnifying Party shall pay all damages and costs which
may be awarded against the Indemnified Party because of such infringement by the
Indemnifying Party.
(b) The Indemnifying Party's duties under the immediately
preceding paragraph (a) are conditional upon the Indemnified Party furnishing to
the Indemnifying Party prompt written notice of the commencement of any suit or
proceeding or any claim of infringement and a copy of each written communication
relating to the alleged infringement, and giving to the Indemnifying Party
authority and reasonable assistance (at the Indemnifying Party's expense and
cost) to defend or settle such law suit, proceeding or claim. The Indemnifying
Party shall not be bound by any settlement made without its prior consent.
Section 14.3 Governing Law; Consent to Jurisdiction. This Agreement
shall be governed by and construed in accordance with the laws of the Republic
of Korea without reference to the choice of law principles thereof. Xxxxxxxxx
and Samsung consent to and hereby submit to the non-exclusive jurisdiction of
the Seoul District Court located in the Republic of Korea in connection with any
action, suit or proceeding arising out of or relating to this Agreement, and
each of the Parties irrevocably waives, to the fullest extent permitted by law,
any objection which it may now or hereafter have to the laying of the venue of
any such proceeding brought in such a court and any claim that any such
proceeding brought in such a court has been brought in an inconvenient forum.
Section 14.4 Effectiveness. The Parties' obligations under this
Agreement are conditioned upon the Closing, the occurrence of which is subject
to various conditions set forth in the Business Transfer Agreement. This
Agreement shall become operative if and when the Closing occurs and shall be
null and void if the Closing does not occur for any reason.
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Section 14.5 Headings; Definitions. The section and article headings
contained in this Agreement are inserted for convenience of reference only and
will not affect the meaning or interpretation of this Agreement. All references
to Sections or Articles contained herein mean Sections or Articles of this
Agreement unless otherwise stated.
Section 14.6 Amendment. This Agreement may not be amended, modified,
superseded, canceled, renewed or extended except by a written instrument signed
by the Party to be charged therewith.
Section 14.7 Waiver; Effect of Waiver. No provision of this Agreement
may be waived except by a written instrument signed by the Party waiving
compliance. No waiver by any Party of any of the requirements hereof or of any
of such Party's rights hereunder shall release the other Party from full
performance of its remaining obligations stated herein. No failure to exercise
or delay in exercising on the part of any Party any right, power or privilege of
such Party shall operate as a waiver thereof, nor shall any single or partial
exercise of any right, power or privilege preclude any other or further exercise
thereof or the exercise of any other right, power or privilege by such Party.
Section 14.8 Severability. If any provision of this Agreement or the
application thereof to any person or circumstance shall be deemed invalid,
illegal or unenforceable to any extent or for any reason, such provision shall
be severed from this Agreement and the remainder of this Agreement and the
application thereof shall not be affected and shall be enforceable to the
fullest extent permitted by law. A provision which is valid, legal and
enforceable shall be substituted for the severed provision.
Section 14.9 No Third-Party Beneficiaries. Nothing in this Agreement,
express or implied, is intended to or shall confer on any Person other than the
Parties and their respective successors or assigns any rights (including
third-party beneficiary rights), remedies, obligations or liabilities under or
by reason of this Agreement. This Agreement shall not provide third parties with
any remedy, claim, liability, reimbursement, cause of action or other right in
excess of those existing without reference to the terms of this Agreement.
Section 14.10 Interpretation; Absence of Presumption.
(a) For the purposes hereof, (i) words in the singular shall
be held to include the plural and vice versa and words of one gender shall be
held to include the other gender as the context requires, (ii) the terms
"hereof," "herein," and "herewith" and words of similar import shall, unless
otherwise stated, be construed to refer to this Agreement as a whole (including
all of the Schedules hereto) and not to any particular provision of this
Agreement, and Article, Section, paragraph and Schedule references are to the
Articles, Sections, paragraphs and Schedules to this Agreement unless otherwise
specified, (iii) the word "including" and words of similar import when used in
this Agreement means "including, without limitation," unless the context
otherwise requires or unless otherwise specified, (iv) the word "or" shall not
be exclusive, (v) provisions shall apply, when appropriate, to successive events
and transactions, and (vi) all references to any period of days shall be deemed
to be to the relevant number of calendar days.
13
14
(b) This Agreement shall be construed without regard to any
presumption or rule requiring construction or interpretation against the Party
drafting or causing any instrument to be drafted.
Section 14.11 Counterparts. This Agreement may be executed in two or
more counterparts, all of which shall be considered one and the same agreement,
and shall become effective when one or more counterparts have been signed by
each of the Parties and delivered to the other Party.
Section 14.12 Entire Agreement. This Agreement (including agreements
incorporated herein), the Business Transfer Agreement, the Confidentiality
Agreement and the Schedules hereto contain the entire agreement between the
Parties with respect to the subject matter hereof and there are no agreements,
understandings, representations or warranties between the Parties other than
those set forth or referred to herein.
Section 14.13 Relationship of the Parties. Samsung shall perform all
services hereunder as an independent contractor. This Agreement does not create
a fiduciary or agency relationship between Samsung and Xxxxxxxxx, each of which
shall be and at all times remain independent companies for all purposes
hereunder. Nothing in this Agreement is intended to make either Party a general
or special agent, joint venturer, partner or employee of the other for any
purpose.
Section 14.14 Assignment. This Agreement shall be binding upon and
inure to the benefit of the Parties and their respective successors and assigns;
provided, however, that no Party will assign its rights or delegate its
obligations under this Agreement without the express prior written consent of
the other Party, except that (i) Xxxxxxxxx may assign its rights hereunder as
collateral security to any bona fide financial institution engaged in
acquisition financing in the ordinary course providing financing to consummate
the transactions contemplated hereby or any bona fide financial institution
engaged in acquisition financing in the ordinary course through which such
financing is refunded, replaced or refinanced and any of the foregoing financial
institutions may assign such rights in connection with a sale of Xxxxxxxxx in
the form then being conducted by Xxxxxxxxx substantially as an entirety and (ii)
Samsung and Xxxxxxxxx each may assign its rights and obligations under this
Agreement to any Entity that succeeds to substantially all of its assets and
liabilities. Notwithstanding anything to the contrary, any assignment of this
Agreement by either party shall expressly provide that the rights of the other
party hereunder shall survive such assignment.
Section 14.15 Fulfillment of Obligations. Any obligation of any Party
to any other Party under this Agreement, which obligation is performed,
satisfied or fulfilled by an Affiliate of such Party, shall be deemed to have
been performed, satisfied or fulfilled by such Party.
Section 14.16 Publicity. Neither Party shall, without the approval of
the other Party, make any press release or other public announcement concerning
the terms of the transactions contemplated by this Agreement, except as and to
the extent that any such Party shall be so obligated by law or pursuant to a
lawful request of a government agency.
14
15
Section 14.17 Specific Performance. The Parties each acknowledge
that, in view of the uniqueness of the subject matter hereof, the parties would
not have an adequate remedy at law for money damages in the event that this
Agreement were not performed in accordance with its terms, and therefore agree
that the Parties shall be entitled to specific enforcement of the terms hereof
in addition to any other remedy to which the Parties may be entitled at law or
in equity.
Section 14.18 No Consequential Damages. In no event shall either Party
be liable for any indirect, special, incidental, or consequential damages
resulting from the other Party's performance or failure to perform under this
Agreement, or the furnishing, performance, or use of any goods or services sold
pursuant hereto, whether due to breach of contract, breach of warranty,
negligence or otherwise, regardless of whether the nonperforming Party was
advised of the possibility of such damages or not.
Section 14.19 Ownership Interest. Samsung shall promptly provide to
Xxxxxxxxx notice of its intention to sell the facilities and Xxxxxxxxx shall be
the preferred purchaser of the Facilities. After providing such notice, Samsung
shall promptly provide to Xxxxxxxxx all documents and other information
reasonably requested by Xxxxxxxxx to enable Xxxxxxxxx to make an offer to
purchase the Facilities. Xxxxxxxxx shall have the right to make the first offer
to purchase the Facilities and Xxxxxxxxx and Samsung shall negotiate in good
faith the terms and conditions included in any such offer. Notwithstanding the
purchase price offered by Xxxxxxxxx, if Xxxxxxxxx purchases the Facilities,
Xxxxxxxxx shall be entitled to a credit against the purchase price in an amount
equal to one-half of the net income before Income Taxes (as calculated in
accordance with GAAP) generated by the Business from March 16, 1999 to the
Closing Date. Samsung agrees that it will not sell the Facilities to any third
party for a purchase price that is not equal to or higher than the purchase
price offered by Xxxxxxxxx (before application of the credit referred to in the
immediately preceding sentence), unless Samsung determines in good faith, based
on the terms of such third-party offer (other than the purchase price), that the
offer by such third party is superior to the offer by Xxxxxxxxx. Other than the
limitations set forth in this paragraph, Samsung shall not be restricted in any
way from selling or transferring the Facilities to a third party and,
notwithstanding the foregoing, Samsung shall not be restricted in any way from
discussing the sale or transfer of the Facilities to any third party.
15
16
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be
duly executed on their behalf as of the date first written above.
SAMSUNG ELECTRONICS CO., LTD.
By: /s/ Xxx Xxx
-------------------------------
Name:
-------------------------------
Title:
-------------------------------
XXXXXXXXX KOREA SEMICONDUCTOR LTD.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------
Name: Xxxxxx X. Xxxxxx
-------------------------------
Title: Exec. V.P.
-------------------------------
16
17
Schedule 5.4
Capacity assigned exclusively for the use of the Devices
unit: Kpcs/year
---------------------------------------------------
Package Annual capacity
---------------------------------------------------
TO-220 F/P (4) 60,000
---------------------------------------------------
TO-3P (5) 21,600
---------------------------------------------------
TO-3P F/P (5) 7,200
---------------------------------------------------
18
Schedule 6.1
Prices
unit: US Cen
----------------------------------------------------------------------------------------------------------------
General &
Device Family Manufacturing cost Interest Administrative Total cost
----------------------------------------------------------------------------------------------------------------
Assembly Final test Sum
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
AA9258X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 5.57 16.55 1.99 1.79 20.32
----------------------------------------------------------------------------------------------------------------
AD8329A-AOG L-IC INDUSTRI 032 SDIP H/S 18.19 8.80 26.99 3.24 2.91 33.14
----------------------------------------------------------------------------------------------------------------
AE2811B-ERG L-IC INDUSTRI 048 QFP H/S 15.45 15.27 30.71 3.69 3.32 37.71
----------------------------------------------------------------------------------------------------------------
AE2822A-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 5.69 16.67 2.00 1.80 20.47
----------------------------------------------------------------------------------------------------------------
AE3014X-ERG L-IC INDUSTRI 048 QFP H/S 15.45 11.66 27.10 3.25 2.93 33.28
----------------------------------------------------------------------------------------------------------------
AE3016X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 4.40 15.37 1.84 1.66 18.88
----------------------------------------------------------------------------------------------------------------
AE3017X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 9.51 20.49 2.46 2.21 25.16
----------------------------------------------------------------------------------------------------------------
AE3018X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 9.28 20.26 2.43 2.19 24.88
----------------------------------------------------------------------------------------------------------------
AE3019X-BNF 9.86 5.94 15.80 1.90 1.71 19.41
----------------------------------------------------------------------------------------------------------------
AE3020X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 2.26 13.23 1.59 1.43 16.25
----------------------------------------------------------------------------------------------------------------
AE3021P-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 6.09 17.06 2.05 1.84 20.95
----------------------------------------------------------------------------------------------------------------
AE3025X-EXF 16.94 1.73 18.68 2.24 2.02 22.93
----------------------------------------------------------------------------------------------------------------
AE3030X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 12.69 23.66 2.84 2.56 29.06
----------------------------------------------------------------------------------------------------------------
AE3031X-ERG L-IC INDUSTRI 048 QFP H/S 15.45 11.66 27.10 3.25 2.93 33.28
----------------------------------------------------------------------------------------------------------------
AE3032X-ERJ L-IC INDUSTRI 048 QFP 12.40 11.51 23.92 2.87 2.58 29.37
----------------------------------------------------------------------------------------------------------------
AE3050X-AOG L-IC INDUSTRI 032 SDIP H/S 18.19 18.40 36.58 4.39 3.95 44.92
----------------------------------------------------------------------------------------------------------------
AE3050X-ERJ 11.28 17.95 29.23 3.51 3.16 35.89
----------------------------------------------------------------------------------------------------------------
AE3080X-AOG L-IC INDUSTRI 032 SDIP H/S 18.19 5.61 23.80 2.86 2.57 29.22
----------------------------------------------------------------------------------------------------------------
AE3080X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 3.81 14.78 1.77 1.60 18.15
----------------------------------------------------------------------------------------------------------------
AE3120X-ERG L-IC INDUSTRI 048 QFP H/S 15.45 11.66 27.10 3.25 2.93 33.28
----------------------------------------------------------------------------------------------------------------
AE3121X-ERG 16.61 8.41 25.02 3.00 2.70 30.73
----------------------------------------------------------------------------------------------------------------
AE9259X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 8.59 19.57 2.35 2.11 24.03
----------------------------------------------------------------------------------------------------------------
AE9260X-BNF L-IC INDUSTRI 028 SSOP H/S 10.98 5.60 16.58 1.99 1.79 20.36
----------------------------------------------------------------------------------------------------------------
HC3530C-TQD L-IC SPS TO-220 F/P 4L 8.60 2.52 11.11 1.33 1.20 13.65
----------------------------------------------------------------------------------------------------------------
HC3531B-TQD L-IC SPS TO-220 F/P 4L 8.60 2.64 11.23 1.35 1.21 13.79
----------------------------------------------------------------------------------------------------------------
HC3531C-TQD L-IC SPS TO-220 F/P 4L 8.60 2.64 11.23 1.35 1.21 13.79
----------------------------------------------------------------------------------------------------------------
HC3532C-TMD L-IC SPS TO-3P 5L 17.41 3.47 20.89 2.51 2.26 25.65
----------------------------------------------------------------------------------------------------------------
HC3533C-TMD L-IC SPS TO-3P 5L 17.41 3.47 20.89 2.51 2.26 25.65
----------------------------------------------------------------------------------------------------------------
HC3534X-TKH L-IC SPS TO-3P F/P 5L 21.29 3.63 24.92 2.99 2.69 30.60
----------------------------------------------------------------------------------------------------------------
HC3535B-TMD L-IC SPS TO-3P 5L 17.26 3.05 20.31 2.44 2.19 24.94
----------------------------------------------------------------------------------------------------------------
HC3536C-TKH L-IC SPS TO-3P F/P 5L 21.28 6.66 27.95 3.35 3.02 34.32
----------------------------------------------------------------------------------------------------------------
HC3536C-TMD L-IC SPS TO-3P 5L 17.42 3.69 21.11 2.53 2.28 25.92
----------------------------------------------------------------------------------------------------------------
HC3550X-TQD L-IC SPS TO-220 F/P 4L 8.60 2.50 11.10 1.33 1.20 13.62
----------------------------------------------------------------------------------------------------------------
HC3551X-TQD L-IC SPS TO-220 F/P 4L 8.60 2.64 11.23 1.35 1.21 13.79
----------------------------------------------------------------------------------------------------------------
HC3552X-TQD 8.55 1.75 10.31 1.24 1.11 12.66
----------------------------------------------------------------------------------------------------------------
HC3553X-TQD L-IC SPS TO-220 F/P 4L 8.60 2.52 11.11 1.33 1.20 13.65
----------------------------------------------------------------------------------------------------------------
HC3554X-TMD L-IC SPS TO-3P 5L 17.41 3.69 21.11 2.53 2.28 25.92
----------------------------------------------------------------------------------------------------------------
HC3555X-TKH L-IC SPS TO-3P F/P 5L 21.46 3.90 25.36 3.04 2.74 31.15
----------------------------------------------------------------------------------------------------------------
HC3555X-TMD L-IC SPS TO-3P 5L 17.42 3.71 21.13 2.54 2.28 25.94
----------------------------------------------------------------------------------------------------------------
HC3556X-TKH L-IC SPS TO-3P F/P 5L 21.31 3.38 24.69 2.96 2.67 30.32
----------------------------------------------------------------------------------------------------------------
HC3556X-TMD L-IC SPS TO-3P 5L 17.44 3.26 20.70 2.48 2.24 25.42
----------------------------------------------------------------------------------------------------------------
HE1600A-TQD L-IC REGULATO TO-220 F/P 4L 8.60 1.83 10.42 1.25 1.13 12.80
----------------------------------------------------------------------------------------------------------------
HE2600A-TQD L-IC REGULATO TO-220 F/P 4L 8.60 2.05 10.64 1.28 1.15 13.07
----------------------------------------------------------------------------------------------------------------
HE3600A-TQD L-IC REGULATO TO-220 F/P 4L 8.60 2.05 10.64 1.28 1.15 13.07
----------------------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------------------
AE0319A-AGA L-IC INDUSTRI 014 DIP 1.95 1.95 0.23 0.21 2.39
----------------------------------------------------------------------------------------------------------------
AE0324B-AGA L-IC INDUSTRI 014 DIP 2.47 2.47 0.30 0.27 3.03
----------------------------------------------------------------------------------------------------------------
AE0324K-BGB L-IC INDUSTRI 014 SOP 2.35 2.35 0.28 0.25 2.88
----------------------------------------------------------------------------------------------------------------
AE0339B-AGA L-IC INDUSTRI 014 DIP 2.70 2.70 0.32 0.29 3.32
----------------------------------------------------------------------------------------------------------------
AE0339B-AGC 1.89 1.89 0.23 0.20 2.32
----------------------------------------------------------------------------------------------------------------
AE0347X-AGF L-IC INDUSTRI 014 DIP 2.32 2.32 0.28 0.25 2.84
----------------------------------------------------------------------------------------------------------------
AE0358A-ACA 1.48 1.48 0.18 0.16 1.82
----------------------------------------------------------------------------------------------------------------
AE0358A-BCC 1.67 1.67 0.20 0.18 2.05
----------------------------------------------------------------------------------------------------------------
19
----------------------------------------------------------------------------------------------------------------
AE0393A-ACA L-IC INDUSTRI 008 DIP 2.16 2.16 0.26 0.23 2.65
----------------------------------------------------------------------------------------------------------------
AE0556X-AGC L-IC INDUSTRI 014 DIP 1.79 1.79 0.22 0.19 2.20
----------------------------------------------------------------------------------------------------------------
AE0556X-BGB L-IC INDUSTRI 014 SOP 1.61 1.61 0.19 0.17 1.97
----------------------------------------------------------------------------------------------------------------
AE34038-AGC L-IC INDUSTRI 014 DIP 2.68 2.68 0.32 0.29 3.29
----------------------------------------------------------------------------------------------------------------
AR0042X-AHD 6.31 6.31 0.76 0.68 7.75
----------------------------------------------------------------------------------------------------------------
AR0723A-AGA L-IC REGULATO 014 DIP 2.11 2.11 0.25 0 2.59
----------------------------------------------------------------------------------------------------------------
AR3501X-AGA L-IC REGULATO 014 DIP 6.28 6.28 0.75 0.68 7.71
----------------------------------------------------------------------------------------------------------------
AR3502X-AKC L-IC REGULATO 020 DIP 6.56 6.56 0.79 0.71 8.05
----------------------------------------------------------------------------------------------------------------
AR3511X-ALC L-IC REGULATO 022 DIP 6.55 6.55 0.79 0.71 8.04
----------------------------------------------------------------------------------------------------------------
AR3524X-AHA L-IC REGULATO 016 DIP 3.30 3.30 0.40 0.36 4.05
----------------------------------------------------------------------------------------------------------------
AR3840C-ACC L-IC REGULATO 008 DIP 2.30 2.30 0.28 0.25 2.83
----------------------------------------------------------------------------------------------------------------
AR3840C-BCF L-IC REGULATO 008 SOP 2.33 2.33 0.28 0.25 2.86
----------------------------------------------------------------------------------------------------------------
AR7506A-AHC L-IC REGULATO 016 DIP 6.75 6.75 0.81 0.73 8.29
----------------------------------------------------------------------------------------------------------------
AR7508X-AHC L-IC REGULATO 016 DIP 10.17 10.17 1.22 1.10 12.49
----------------------------------------------------------------------------------------------------------------
AR9003X-AHD L-IC REGULATO 016 DIP 5.98 5.98 0.72 0.65 7.34
----------------------------------------------------------------------------------------------------------------
HC3550X-ACK L-IC SPS 008 DIP 2.68 2.68 0.32 0.291 3.30
----------------------------------------------------------------------------------------------------------------
