DRAFT DATED JUNE 24, 2002
CONFIDENTIAL PORTIONS OF THIS AGREEMENT HAVE BEEN OMITTED AND FILED SEPARATELY
WITH THE COMMISSION PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT.
MASTER SERVICES AND LICENSE AGREEMENT
This Master Services and License Agreement Number _____ (this "Master
Agreement"), with an "Effective Date" of June __, 2002, is made by and between
Artisan Components, Inc., a Delaware corporation, with its principal place of
business at 000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000, Xxxxxx Xxxxxx of
America (hereinafter referred to as "Artisan Components"), and Tower
Semiconductor Ltd., a company organized under the laws of Israel with its
principal place of business at Ramat Gavriel Industry Zone, Xxxxxx Haemek, 23105
Israel (hereinafter referred to as "Customer").
RECITALS
WHEREAS, Customer operates manufacturing facilities for the production of
semiconductors designed and ordered by its customers; and
WHEREAS, Artisan Components develops standard cells, I/O cells and embedded
memories (the "Artisan Products"), which it licenses to end users such as
Customer's customers for use in designing and manufacturing semiconductors; and
WHEREAS, in order for semiconductors incorporating the Artisan Products to
be manufactured by Customer, the Artisan Products must be customized for use
with Customer's manufacturing processes, and Customer wishes to have Artisan
Components undertake such customization, working at its facilities in Sunnyvale,
California; and
WHEREAS, Customer wishes for competitive reasons to have Artisan Components
make the customized Artisan Products available to Customer's customers for use
in the design of their semiconductors, such design to be done by the Customer's
customers or their service providers at the Customer customers' facilities; and
WHEREAS, in consideration of the services performed and Artisan Products
provided to Customer's customers by Artisan Components hereunder, Customer
agrees to pay the service fees, license fees, royalties and support and
maintenance fees set forth herein, in lieu of charges paid by the end user to
providers of standard cells, I/O cells and embedded memories.
NOW, THEREFORE, for good and valuable consideration, the sufficiency of
which is hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 "AFFILIATE" means any corporation or other business entity in which,
but only for so long as, Customer owns or controls directly or indirectly, at
least 50% of the outstanding stock or other voting rights entitled to elect
directors.
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DRAFT DATED JUNE 24, 2002
1.2 "BACK-END VIEWS" means the library element physical design and related
documentation deliverables, whether in object code, reconfigurable binary, ASCII
data, binary data, or any other form, as identified in Appendix A-1 to the
Product Schedule.
1.3 [***] means any [***] or [***] that [***] and/or [***] for [***]
standard cells, [***] and/or [***] and is listed in [***], which may be updated
by Artisan Components from time to time by providing notice to Customer in
accordance with Section 17.
1.4 "CUSTOMER'S MANUFACTURING SITE(S)" means manufacturing facilities for
integrated circuits owned or controlled by Customer or its Affiliates, and third
party owned manufacturing facilities for integrated circuits to the extent they
are under contract to Customer for manufacturing integrated circuits (as
provided in Section 2.4).
1.5 "DESIGN" means any integrated circuit, integrated circuit mask, design
database or graphical representation of a design database containing
representations of Licensed Product(s) (or portions thereof) or designed with
data from Licensed Product(s) from Artisan Components in any of its various
formats, including but not limited to: circuit schematics, ASCII or binary data,
logic diagrams, simulation models, physical layout, hardware description
languages, timing characteristics and netlists.
1.6 "ELECTROART" means any deliverables provided by Artisan Components to
Customer pursuant to the Artisan Components ElectroArt Technology Development
Program ("ElectroArt Program"), including but not limited to GDSII data and
report(s) provided in connection with the ElectroArt Program.
1.7 "FRONT-END VIEWS" means the library element timing, simulation models,
logical symbols, floor planning abstracts and related documentation deliverables
as identified in Appendix A-1 to the Product Schedule.
1.8 "INTELLECTUAL PROPERTY" means worldwide patent rights, copyrights,
trade secret rights, mask work rights and other intellectual property rights.
1.9 "INTERNAL USE DOCUMENTATION" means the Internal Use Documentation, if
any, listed in Appendix A-1 to the Product Schedule. The Internal Use
Documentation is Confidential Information of Artisan Components and may not be
disclosed or distributed to third parties.
1.10 "LICENSE AGREEMENT" shall have the meaning set forth in Section 2.1.
1.11 "LICENSE AGREEMENT EFFECTIVE DATE" means the License Agreement
Effective Date as set forth in the Product Schedule.
1.12 "LICENSE AND CUSTOMIZATION SERVICE FEES" shall have the meaning set
forth in Section 7.2.
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[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
2
DRAFT DATED JUNE 24, 2002
1.13 "LICENSED INTEGRATED CIRCUIT" shall mean a single die (or if Customer
is a foundry, a piece of silicon wafer) in whole or in part manufactured Using
all or any portion of the Licensed Product(s) and/or a single die (or if
Customer is a foundry, a piece of silicon wafer) that in whole or in part is
made up of, incorporates or is based upon any portion of a Design and/or
Licensed Product(s).
1.14 "LICENSED PRODUCT(S)" means the products described in Appendix A-1 to
the Product Schedule, and any Updates thereto, whether in object code,
re-configurable binary, ASCII data, binary data or any other form. Licensed
Product(s) includes the Back-End Views, Front-End Views and Internal Use
Documentation.
1.15 "MASTER AGREEMENT EFFECTIVE DATE" means the "Effective Date" for this
Master Agreement as set forth in the preamble hereof.
1.16 "PRODUCT SCHEDULE" means a Product Schedule in the form of Exhibit C,
signed by Artisan Components and Customer and incorporating, by reference, the
terms and provisions of this Master Agreement.
1.17 "REQUIRED DATA" shall have the meaning set forth in Section 2.8.
1.18 "UPDATE(S)" means (a) any error correction to a Licensed Product made
by or for Artisan Components, which Artisan Components provides to Customer
under the maintenance as described in Appendix C-1 to the Product Schedule, if
applicable, and (b) any other derivative work, extension, modification or
feature enhancement for process node variants to a Licensed Product made by or
for Artisan Components, which Artisan Components in its sole discretion releases
to any of its licensees free of charge. Updates shall not include any new or
additional features, enhancements, or options which increase the basic
functionality of the Licensed Product, for which Artisan Components charges its
licensees a separate or additional fee.
1.19 "USAGE, USING, USE OR USED" means the transmitting, processing,
storing, designing with or displaying of any portion of the Licensed Product(s)
through the use of computer and/or video equipment and/or other utilization of
any portion of the Licensed Product(s), in each case solely for the purpose of
designing Licensed Integrated Circuits and manufacturing Licensed Integrated
Circuits at Customer's Manufacturing Site(s). "Usage, Using, Use or Used" does
not include the modifying of any Licensed Product(s) or portion thereof (except
as specifically allowed under Section 2.7), and no rights or licenses to modify
any Licensed Product(s) or portion thereof are granted hereunder.
1.20 "WAFER" shall mean a combination of die in whole or in part
manufactured Using all or any portion of the Licensed Product(s) and/or a
combination of die that in whole or in part is made up of, incorporates or is
based upon any portion of a Design and/or Licensed Product(s).
2. LICENSE GRANT AND RELATED TERMS
2.1 Each Product Schedule shall constitute a separate and independent
License Agreement (a "License Agreement"), which shall incorporate by reference
the terms and conditions of this Master Agreement; the original of such License
Agreement shall consist of the signed Product Schedule and a copy of this Master
Agreement. Capitalized terms used, but not defined, in this Master Agreement
have the meanings given to such terms in the Product Schedule.
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DRAFT DATED JUNE 24, 2002
2.2 Subject to the terms and conditions stated herein, upon full
satisfaction of Customer's obligations to pay the License and Customization
Service Fees, Artisan Components grants to Customer a non-transferable,
non-exclusive, royalty-bearing license, for the License Agreement Term set forth
in the Product Schedule, to:
(A) Use the Licensed Product(s);
(B) reproduce the Licensed Product(s);
(C) distribute the Front-End Views to third party entities who are not
[***], and only (i) as needed for the purpose of supporting Customer's
customers IC design and Customer's manufacture business as it relates to
Licensed Integrated Circuits; or (ii) for such third parties to internally
use the Front-End Views to design integrated circuits for manufacture by
Customer pursuant to the terms and conditions of this Master Agreement;
(D) distribute the Back-End Views to third party entities who are
not[***], only (i) as needed for the purpose of supporting Customer's
customers IC design and Customer's manufacture business as it relates to
Licensed Integrated Circuits; or (ii) for such third parties to internally
use the Back-End Views to design integrated circuits for manufacture by
Customer pursuant to the terms and conditions of this Master Agreement, and
in either case subject to the additional conditions set forth in this
Section 2.2(d). Customer must give Artisan Components written prior notice
of the recipient entity and Back-End Views to be disclosed, and such
disclosure and distribution of the Back-End Views may be made only to
entities who are under a nondisclosure/restricted use agreement with
Customer which provides at a minimum for the following protections: (i) a
confidentiality provision sufficient to protect the Back-End Views from
further disclosure/distribution; (ii) a restricted use provision that is
sufficient to limit use of the Back-End Views for the design of Licensed
Integrated Circuits and/or manufacture of Licensed Integrated Circuits at
Customer's Manufacturing Site(s); and (iii) a third party beneficiary
rights provision giving Artisan Components third party beneficiary rights
to enforce the nondisclosure/restricted use agreement.
2.3 Subject to the terms and conditions stated herein, upon full
satisfaction of Customer's obligations to pay the License and Customization
Service Fees, Artisan Components grants to Customer a non-transferable,
non-exclusive license, for the License Agreement Term set forth in the Product
Schedule, to use ElectroArt (if ElectroArt is included in a Product Schedule)
solely for Customer's internal review and evaluation for the purpose of working
with Artisan Components on royalty-bearing Licensed Product development by
Artisan Components for Customer. Customer's right to use ElectroArt shall be
subject also to the terms and conditions applicable to Licensed Product(s) of
Sections 4 through 21 of this Master Agreement.
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[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
4
DRAFT DATED JUNE 24, 2002
2.4 Customer may sublicense its Affiliates to Use the Licensed Product(s)
solely in the course of designing and manufacturing Licensed Integrated Circuits
on behalf of Customer in accordance with the terms and conditions herein;
provided, that (i) any such Affiliates must execute a written nondisclosure
agreement no less protective than the License Agreement to protect against the
unauthorized use and disclosure of the Licensed Product(s) (including any
further disclosure/distribution by such Affiliates) and to ensure that all
Wafers are reported and paid for as required under the License Agreement; and
(ii) the disclosure/distribution of Front-End Views and Back-End Views to any
Affiliates must meet all the conditions of Sections 2.2(c) and 2.2(d), as
applicable (e.g., can't be a [***] etc.). Further, Customer shall maintain with
the owners and operators (the "Operators") of all Customer Manufacturing Sites
that are not owned by Customer or Affiliates, agreements which provide at a
minimum, the following protections for Artisan Components: (i) a nondisclosure
agreement no less protective than the License Agreement to protect against the
unauthorized use and disclosure of the Licensed Product(s) (including any
further disclosure/distribution by such Operators) and to ensure that all Wafers
are reported and paid for as required under the applicable License Agreement;
(ii) a clause granting Artisan Components audit rights regarding the Operators'
books and records, consistent with the audit provisions of Section 7.8; and
(iii) a third party beneficiary rights provision giving Artisan Components third
party beneficiary rights to enforce such agreement. Customer shall provide
Artisan Components with a copy of each such agreement as well as Customer's best
estimate of Wafers to be manufactured by the applicable Operator. An entity may
not qualify as the owner or operator of a Customer Manufacturing Site if such
entity is located in, or if its facility is in, the People's Republic of China
without Artisan Components' prior written consent. Customer is responsible for
any unauthorized use or disclosure of the Licensed Product(s), and any and all
manufacture of (and payment, including royalties, for) Wafers, by its
Affiliates, Operators and contractors. Customer may allow third party
contractors access to and Use of the Licensed Product(s) solely to the extent
that such contractors require such access in the course of their assigned duties
with Customer or its Affiliates, subject to Section 8 (Export Restrictions) and
provided that (i) such third party contractors are not Competitors of Artisan
Components, (ii) the use of the Licensed Product(s) are solely for the benefit
of Customer, and (iii) any such third party contractor must execute a written
nondisclosure agreement no less protective than the License Agreement to protect
against the unauthorized use and disclosure of the Licensed Product(s)
(including any further disclosure/distribution by such third party contractor),
which agreement shall also include a third party beneficiary rights provision
giving Artisan Components third party beneficiary rights to enforce such
agreement.
2.5 Certain elements of the Licensed Product(s) may be provided in
files/data formatted for use with or by certain third party tools/products. No
license to any third party tools/products is granted to Customer by Artisan
Components. Customer must ensure that it and any parties it authorizes to Use
the Licensed Product(s) in accordance with the License Agreement have the
necessary licenses and rights to use the third party tools/products to utilize
the Licensed Product(s).
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
5
DRAFT DATED JUNE 24, 2002
2.6 Except as expressly set forth in this Section 2, no rights or licenses
to the Licensed Product(s), implied or express, are granted to Customer.
Customer acknowledges and agrees that: (a) unauthorized reproduction, electronic
transfer or other use of Licensed Product(s) which is not expressly authorized
by this Section 2 is a breach of a material obligation of this Master Agreement
and the License Agreement; and (b) in the event that unauthorized copies of
Licensed Product(s) are made and/or Used by Customer, its Affiliates, and
Artisan Components elects not to terminate the License Agreement pursuant to
Section 9 hereof, Customer shall by virtue of such act(s) be deemed to order and
accept a license for and shall pay Artisan Components the price and applicable
royalties and support fees (all as set forth in this Master Agreement) for each
such unauthorized production, electronic Use, other unauthorized Use, or
transfer of Licensed Product(s), but only to the extent that the unauthorized
product, electronic Use or other unauthorized Use or transfer otherwise would
have generated revenue for Artisan Components had it been properly licensed or
where Artisan Components would charge a royalty under its standard agreements.
License and Customization Service Fees, support fees and previously accrued
royalties shall be due, for purposes of Section 7, [***] days following
discovery by Artisan Components of such unauthorized use.
2.7 [***]
(a) Customer may [***] and [***] of the Licensed Products (each a [***] and
collectively, [***]) provided that such [***] are [***] to the following: (i)
[***] (ii) [***] using Sage Modeler provided by Artisan Components to Customer
hereunder; and (iii) [***] and further provided, that Customer shall [***] or
[***] of the Licensed Products that are of a [***] (for example, a [***] process
geometry [***] a [***] process geometry) or constitute a [***] (for example, a
[***] than the Licensed Products that are [***]. Products containing one or more
[***] shall be subject to royalties as if they were Licensed Products of the
same process geometry. [***] do not include other cells or components owned by
Customer and incorporated into its customers' Designs, provided such cells or
components are not derived from any Licensed Product. All [***] shall be subject
to all terms and conditions applicable to Licensed Products, except as modified
by the following terms and conditions, which shall apply to all [***]: (i)
Artisan Components has no warranty, indemnity, or support and maintenance
obligations with respect to any Licensed Products containing one or more [***];
(ii) [***] to Artisan Components promptly, no later than [***] after the [***]
is made by Customer; (iii) Customer shall provide Artisan Components with
written notice of Customer's customer(s) intending to use one or more [***]
prior to the distribution of any [***] to such customer(s); and (iv) Artisan
Components shall have no obligation to distribute any [***] as part of Artisan
Component's general library distribution program.
(b) Customer shall [***] all [***] and all [***] and [***] in or to those
[***]. That [***] will be, however, subject to Artisan Components' rights in and
to the Licensed Products (and Artisan Components reserves all rights in and to
the Licensed Products that are not explicitly granted in this Agreement).
Customer grants to Artisan Components a [***] to the [***], to reproduce and
distribute, transmit, publicly perform and display, create derivative works of,
and to make, use and sell products that are based on, that include, or that are
derivative works of the [***] (and derivative works thereof).
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[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
6
DRAFT DATED JUNE 24, 2002
2.8 Customer agrees to provide Artisan Components with the data required
from Customer ("Required Data") identified in Appendix A-1 to the Product
Schedule (process information) and Customer authorizes Artisan Components to use
such data/information for purposes of the License Agreement. Customer represents
and warrants that it is authorized to provide to Artisan Components, and
authorizes Artisan Components to use, the Required Data.
2.9 At Customer's direction, or upon Customer's consent, Artisan Components
will distribute the Licensed Products (once completed) to Customer's customers,
free of charge to Customer's customers, within [***] after execution by Artisan
Components and the Customer's customer of an applicable End User License
Agreement, for use by Customer's customer in designing, testing, and otherwise
creating and verifying Designs for manufacture solely at Customer's
Manufacturing Sites. For purposes of clarification, the parties agree that the
only Licensed Products that Artisan Components shall be required to distribute
to Customer's customers under this Section shall be Licensed Products that
Artisan Components has previously delivered to Customer as completed
deliverables. Artisan Components will distribute the Licensed Products pursuant
to a separate agreement between Artisan Components and the Customer's customers
governing the Customer's customers' use of the Licensed Products (the "End User
License Agreement"), substantially in the same standard form and terms under
which similar Artisan Components' products are provided to customers of leading
foundries. Artisan Components shall offer support for the Licensed Products to
Customer's customers pursuant to Artisan Components' customary support terms and
fees. Such End User License Agreement, and any support agreement, shall be
solely and exclusively between Artisan Components and Customer's customers.
Artisan Components may charge its customary rates for support, maintenance,
engineering and customization services provided by Artisan Components to any
Customer's customer with no accounting to Customer for any such fees. With
respect to support, Artisan Components agrees that Customer's customers may
participate in its end user support programs. Currently, this program includes
AccessBasic, a basic level of customer support for one type of Licensed Product,
for [***] AccessFirst, a more comprehensive level of customer support for
multiple Licensed Products, for [***] and AccessCustom, a customized support
program for customers with special support needs that is priced on an individual
basis. Customer's customers who are already paying Artisan Components for
AccessFirst or AccessCustom support shall be entitled to receive support for the
Licensed Products free of charge and at same level provided for the other
Artisan Components products used by such customer. Manufacture will be permitted
only at Customer's Manufacturing Site(s); provided, however, that Customer will
pay to Artisan Components the agreed upon Royalties (as set forth in Section 7.2
of this Master License Agreement).
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[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
7
DRAFT DATED JUNE 24, 2002
3. SUPPORT CONDITION, SILICON DEBUGGING AND PRODUCT ENGINEERING
3.1 In consideration for the technical support and maintenance fees, [***]
described in Appendix B-1 to the Product Schedule, Artisan Components will
provide Customer with the technical support and maintenance described in
Appendix C-1 to the Product Schedule, if applicable, for the Licensed
Product(s). Such technical support and maintenance is available on an annual
basis only and will be made available throughout the Term, on the terms and
conditions set forth in Appendix C-1.
3.2 The design and verification techniques for the Licensed Product(s) used
by Artisan Components depend on the accuracy of models, flows and design tools;
some of which are provided by Artisan Components' licensees and their target
foundries. Due to practical limits on the accuracy of these models, flows and
design tools, the fabricated silicon behavior may not always agree with that
predicted. In these cases, Artisan Components will assist Customer in silicon
debugging and product engineering at Artisan Components' then current standard
hourly rate plus applicable expenses. Silicon debugging and product engineering
do not fall under the technical support and maintenance set forth in Section 3.1
above. To the extent Artisan Components provides any silicon debugging or
product engineering, or otherwise provides Customer with any revisions and/or
enhancements to the Licensed Product(s), except as otherwise agreed upon, such
revisions and/or enhancements shall be Licensed Product(s) subject to the terms
and conditions of the License Agreement.
4. TERM
This Master Agreement is effective as of the Master Agreement Effective
Date and shall remain in full force and effect for a period of [***] unless
earlier terminated as provided herein. Unless earlier terminated as provided
herein, this Master Agreement will automatically renew at the end of each term
for consecutive one (1) year renewal periods, unless either party notifies the
other at least [***] prior to the end of the then current term that it does not
desire this Master Agreement to renew for another year. Each License Agreement
shall set forth a License Agreement Term which shall be applicable to it. By way
of clarification, a decision by either party not to renew the maintenance and
support agreement (Appendix C-1 to the Product Schedule) will not mean
termination of this Agreement, and the term of the maintenance and support
agreement, as set forth in Section 7 of Appendix C-1 to the Product Schedule,
may not be the same as the term of this Agreement.
5. ORDER, CHANGES AND DELIVERY TERMS
5.1 All orders for Licensed Product(s) shall be evidenced by a Product
Schedule executed by Customer and Artisan Components, and in connection
therewith, Customer may issue to Artisan Components a written purchase order.
Except as otherwise agreed in writing signed by an officer of Artisan
Components, nothing contained in any purchase order submitted by Customer will
in any way modify, delete or add any terms or conditions to said purchases and
licenses, and Customer hereby waives such purchase order provisions.
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[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
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DRAFT DATED JUNE 24, 2002
5.2 Artisan Components shall use reasonable commercial efforts to (i)
maintain the development schedule; (ii) make available such people and other
development resources as are reasonably necessary for Artisan Components to
complete its development obligations on a timely basis, consistent with the
development projections supplied by Artisan Components; and (iii) complete the
delivery of the Licensed Products according to the schedule and milestones as
provided in the Appendix A-1 to the Product Schedule. Customer and Artisan
Components shall jointly conduct milestone meetings or conference calls on a
weekly or bi-weekly basis as needed and periodic engineering reviews to assess
progress in the development of the Licensed Products.
5.3 Changes to the scope of work either requested by and/or necessitated by
Customer's specifications will be evaluated for both schedule and cost impact.
Customer will be asked to complete an Engineering Change Order Request Form, an
"ECO," and submit it to Artisan Components for review. After review of the ECO
by Artisan Components, Artisan Components will notify the Customer in writing on
its ECO Response Form of any schedule and/or price changes. Customer must
provide written acceptance or refusal of the terms and conditions of the ECO
Response Form within [***] of having been so notified. Failure to do so will
cause Artisan Components to proceed with the project as if the Customer's ECO
Request Form had never been received. If Customer's written notice is one of
acceptance of the new schedule and/or costs, then the ECO will be deemed an
amendment to the License Agreement pursuant to Section 21.4 hereof. Sample ECO
Request and ECO Response Forms are attached as Exhibits A and B.
6. OWNERSHIP
6.1 Subject to the licenses granted herein, Artisan Components and its
licensors retain all of their rights, title and interest in and to the Licensed
Product(s) and all patent rights, trademarks, trade secrets, copyrights, mask
work rights and all other proprietary rights therein or relating thereto;
provided, however, that Artisan Components' ownership shall not extend to cells
or components owned by Customer that are not derived from the Licensed Products.
Except for the licenses granted in Section 2, no other grants of licenses or
rights to Customer shall be implied from this Master Agreement or the License
Agreement. Customer will reproduce, and will not alter or xxxx over, all
proprietary notices of Artisan Components on the Licensed Product(s).
6.2 Subject to Artisan Components' ownership of the Licensed Product(s),
Customer shall retain all of its ownership rights to Designs created or derived
through the Use of the Licensed Product(s).
6.3 Except for Customer's process information disclosed to Artisan
Components under this Master Agreement or the License Agreement, Artisan
Components will have the irrevocable royalty-free right to use in the Licensed
Product(s), and any other products offered or distributed by Artisan Components,
any Customer contribution or voluntarily disclosed information provided to
Artisan Components under the Master Agreement or the License Agreement, except
for Confidential Information of Customer, which shall be subject to the
confidentiality obligations set forth in Section 14 of this Agreement.
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DRAFT DATED JUNE 24, 2002
7. PAYMENT TERMS AND TAXES
7.1 Except as expressly specified herein, all payments submitted by
Customer to Artisan Components under the License Agreement shall be
non-refundable and non-creditable (except as specified in part IV of Appendix
B-1 to Exhibit C).
7.2 Unless otherwise mutually agreed in writing, with respect to Licensed
Product(s) ordered under the License Agreement, Customer shall pay to Artisan
Components [***] of the total license fee(s) set forth in Appendix B-1 to the
Product Schedule (the total amount of license fees set forth in Appendix B-1 to
the Product Schedule shall hereinafter be referred to as the "License and
Customization Service Fees") upon the License Agreement Effective Date net [***]
(the "Initial Payment"), [***] of the License and Customization Service Fees for
a specific Licensed Product upon Customer's receipt of such Licensed Product,
[***] (the "Second Payment"), and the remaining [***] of the License and
Customization Service Fees for a specific Licensed Product, [***] after
Customer's receipt of such Licensed Product (the "Third Payment"). Artisan
Components shall provide Customer with an invoice in the amount of the Initial
Payment, such invoice due net [***] after the Effective Date, and Customer shall
pay the invoice via wire transfer to the following account:
BANK NAME: [***]
ACCOUNT NAME: ARTISAN COMPONENTS, INC.
ABA #: [***]
Account #: [***]
For the account of: Artisan Components, Inc.
Upon delivery of each Licensed Product, Artisan Components will provide Customer
with (a) an invoice in the amount of the Second Payment, such invoice due net
[***] after the delivery date of such Licensed Product and (b) an invoice in the
amount of the Third Payment, such invoice due net [***] after the delivery date
of such Licensed Product. The Second Payment and Third Payment shall be made via
an escrow account as set forth in Section 7.3. Notwithstanding the foregoing, if
an ECO with a cost increase shall have been accepted by Customer, Customer shall
pay such amounts at such times as set forth therein. The foregoing provisions of
this Section 7.2 shall not limit the provisions of Section 7.4. Customer also
shall pay to Artisan Components all amounts set forth in Section 2.6 with
respect to unauthorized Use of Licensed Product(s).
7.3 Concurrent with the execution of this Agreement, the parties will enter
into an escrow agreement in substantially the form attached hereto as Exhibit D.
Artisan Components will have no obligations under the Master Agreement or the
License Agreement until such escrow agreement has been executed by Customer and
the escrow is fully funded.
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[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
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DRAFT DATED JUNE 24, 2002
7.4 Within [***] after the end of each [***], Customer further shall
compute and, if any, pay to Artisan Components the running royalties for
Licensed Integrated Circuits, as set forth in Appendix B-1 to the Product
Schedule with respect to Wafers, as applicable pursuant to Appendix B-1. Royalty
calculations are made based on Wafers invoiced, and payment is to be made at the
end of the [***] based on Wafers invoiced in such [***]. Customer shall submit
to Artisan Components with such royalty payment a report stating (a) the part
number for each Licensed Integrated Circuit (such part number may be abbreviated
or modified in order to redact the name of the Customer's customer or otherwise
prevent disclosure of such customer's confidential information), (b) the number
of Wafers invoiced during such [***]; (c) royalties payable under the License
Agreement for such [***]; (d) data and supporting calculations used by Customer
to compute the royalties payable by Customer to Artisan Components with respect
to such [***]; (e) the number of Wafers manufactured during the prior reporting
period; (f) any adjustments made by Customer for the prior reporting period; and
(g) other information as mutually determined by the parties. Artisan Components
agrees that the aforementioned royalty payment report and all of its contents
shall be deemed Customer's Confidential Information, as that term is defined in
Section 14.2 of this Agreement.
7.5 Customer further shall pay to Artisan Components the technical support
and maintenance fees as set forth in Appendix B-1 to the Product Schedule,
subject to termination of maintenance and support as set forth in Appendix C-1
to the Product Schedule.
7.6 All invoices will be mailed to Customer's address specified in the
opening paragraph of this Master Agreement, unless specified otherwise in the
applicable Product Schedule or purchase order.
7.7 Any and all amounts payable under the License Agreement do not include
any government taxes (including without limitation sales, use, excise, and value
added taxes) or duties imposed by any governmental agency that are applicable to
the export, import, or purchase of the Licensed Product(s) (other than taxes on
the net income of Artisan Components), and Customer shall bear all such taxes
and duties. When Artisan Components has the legal obligation to collect and/or
pay such taxes, the appropriate amount shall be added to Customer's invoice and
paid by Customer, unless Customer provides Artisan Components with a valid tax
exemption certificate authorized by the appropriate taxing authority.
7.8 If any applicable law requires Customer to [***] from any payments to
Artisan Components under this Master Agreement, Customer shall effect such
[***], remit such amounts to the [***] and promptly furnish Artisan Components
with [***] evidencing the payments of such amounts. Artisan Components shall
provide all such assistance as Customer may reasonably require in obtaining such
[***]. Notwithstanding the foregoing, in no event shall [***] to Artisan
Components less than [***] of any payment specified hereunder (such payment
measured prior to any [***]), regardless of any amount required by law to be
[***]. Accordingly, if Customer has the legal obligation to [***] equal to more
than [***] of an amount to be paid hereunder, Customer shall [***] such excess
amount, but shall add to the payment such amount that Artisan Components
receives [***] of the payment.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
11
DRAFT DATED JUNE 24, 2002
7.9 With respect to Licensed Integrated Circuits and License and
Customization Service Fees, royalties and other amounts which are payable to
Artisan Components under the License Agreement, Customer shall keep complete and
accurate books and records including but not limited to supporting documentation
for the royalty calculations and manufacturing records. These records shall be
retained for a period of [***] from the date of payment, notwithstanding the
expiration or termination of the License Agreement. Upon ten (10) business days'
advance notice and not more than once per year, Customer agrees to permit its
books and records to be examined by either (i) a designee of Artisan Components
agreed to in writing by Customer, or (ii) an independent CPA firm selected by
Artisan Components or its designee, subject to the confidentiality provisions
set forth in this Master Agreement, during normal business hours, to verify the
accuracy of the License and Customization Service Fees, royalties and other
amounts paid to Artisan Components under the License Agreement. Prompt
adjustment shall be made by the parties for the net amount of any underpayment
or overpayment of any and all License and Customization Service Fees, royalties
and other amounts disclosed by such examination, with respect to the reporting
period reviewed. If such an examination reveals an underpayment of more than
[***], then Customer shall promptly reimburse Artisan Components for the
reasonable cost of such examination. For purposes of this section, the
independent CPA to be selected by Artisan Components will be either one or more
of the following CPA firms or any of their successor entities: Ernst & Young;
KPMG; PricewaterhouseCoopers; or Deloitte Touche.
7.10 All payment amounts stated in the License Agreement, and all payments
to be made under the License Agreement, shall be in U.S. Dollars. If any
currency conversion shall be required in connection with the calculation of
amounts payable under the License Agreement, such conversion shall be made using
the selling exchange rate for conversion of the foreign currency into U.S.
Dollars, quoted for current transactions reported in The Wall Street Journal for
the last business day of the calendar quarter to which such payment pertains.
7.11 Artisan Components reserves the right to charge Customer, and Customer
agrees to pay, interest on late payments under the License Agreement at the
lesser rate of (i) the [***] and [***] per year, or (ii) the maximum permitted
by applicable law.
8. EXPORT RESTRICTIONS
This Master Agreement, the License Agreement, the Licensed Product(s),
Licensed Integrated Circuits, and the rights granted under the License Agreement
are subject to any and all laws, regulations, orders or other restrictions
relative to export, re-export or redistribution of the Licensed Product(s) that
may now or in the future be imposed by the government of the United States or
foreign governments. Each Party agrees to comply with all such applicable laws
and regulations.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
12
DRAFT DATED JUNE 24, 2002
9. TERMINATION
9.1 Either party may, in its sole discretion, terminate this Master
Agreement and any or all License Agreements and the licenses granted hereunder,
upon written notice to the other party, upon the occurrence of any of the
following events: (a) the failure or neglect of the other party to observe,
keep, or perform any of the material covenants, terms or conditions of this
Master Agreement or any License Agreement where such non-performance is not
fully remedied by the breaching party within thirty (30) days of the
non-breaching party written notice; or (b) any breach of Section 2.2, 2.3, 2.4,
2.6 or any material breach of Section 14 hereof (effective immediately upon
written notification); or (c) the filing of a petition for the other Party's
bankruptcy which is not discharged within sixty (60) days, whether voluntary or
involuntary, or an assignment of the other Party's assets made for the benefit
of creditors, or the appointment of a trustee or receiver to take charge of the
other Party's business for any reason, or the other Party becoming insolvent or
ceasing to conduct business in the normal course. Further, unless expressly
provided to the contrary in an ECO or Product Schedule, Artisan Components shall
have the right, in its sole discretion, to terminate this Master Agreement and
any or all License Agreements and the licenses granted hereunder, if Customer
fails or neglects to pay Artisan Components any sums or amounts due,
individually, or in the aggregate in excess of [***], under any License
Agreement in a timely manner where such delinquency is not fully corrected
within thirty (30) days after Artisan Components' written demand. By way of
clarification, a decision by either party not to renew the maintenance and
support agreement (Appendix B-3 to the Product Schedule) will not result in
termination of this Master Agreement or of any License Agreement.
9.2 The provisions of Sections 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17,
18, 19, 20, and 21 shall survive the expiration and any termination of this
Master Agreement and any License Agreement; however, the provisions of Section
9.3 survive as described in that Section, and obligations under Section 10, 11
and 19 survive only to the extent that the obligation is based on events that
occurred prior to termination.
9.3 If Artisan Components exercises its right to terminate this Master
Agreement due to Customer's breach, then upon the effective date of termination,
Customer shall cease to Use and shall either destroy or return to Artisan
Components all of the Licensed Product(s), Licensed Integrated Circuits in
Customer's possession or under Customer's direct control (specifically excluding
non-consigned inventory held by independent distributors), Documentation, and
copies thereof, together with Customer's written certification by a duly
authorized officer, that the Licensed Product(s), Licensed Integrated Circuits
in Customer's possession or under Customer's direct control, and Documentation
and all copies thereof are no longer in Use and have been returned to Artisan
Components or destroyed.
9.4 Upon the effective date of termination of the Master Agreement by
Artisan Components, Customer shall make prompt payment in full to Artisan
Components for all amounts then due plus the present value (discounted at the
lesser of: (a) the then current one year U.S. Treasury Xxxx Rate and (b) the one
year U.S. Treasury Xxxx Rate as of the License Agreement Effective Date) of the
unpaid balance of the License and Customization Service Fees as set forth in
Appendix B-1 to the Product Schedule, but not unearned royalties.
13
DRAFT DATED JUNE 24, 2002
9.5 The foregoing subsections notwithstanding, for a period of [***] after
the termination by Customer pursuant to Section 9.1, or expiration of this
Master Agreement, Customer and its Affiliates shall have the right to distribute
and manufacture Licensed Integrated Circuits, based on Designs of Customer's
customers', if such Designs or previous versions thereof which do not constitute
different products were reduced to GDSII format prior to or within [***]
following the termination or expiration of this Master Agreement, and provided
that Artisan Components is continued to be paid any fees associated with such
Designs.
9.6 Designs. The foregoing subsections notwithstanding, for a period of
eighteen (18) months after the termination by Artisan Components pursuant to
Section 9.1, Customer and its Affiliates shall have the right to distribute and
manufacture Licensed Integrated Circuits, based on Designs of Customer's
customers', if such Designs or previous versions thereof which do not constitute
different products were reduced to GDSII format prior to or within 90 days
following the termination or expiration of this Master Agreement, and provided
that Artisan Components is continued to be paid any fees associated with such
Designs.
9.7 Termination of this Master Agreement or any License Agreement under
this Section 9 shall be in addition to, and not a waiver of, any remedy at law
or in equity available to a Party arising from the other Party's breach of this
Master Agreement or any License Agreement.
10. WARRANTIES
10.1 Artisan Components [***] and [***] the Licensed Products are and will
be [***] by Artisan Components, that it has [***] the [***] hereunder and [***]
the Licensed Products as set forth herein. Artisan Components further [***] and
[***] that as of the Effective Date there are no [***] Artisan Components
relating to any [***] to be used in connection with or imbedded within any
Licensed Product. As Customer's [***] for any [***] of this [***]; Artisan
Components will [***] Customer in accordance with [***].
10.2 Upon the execution of this Master Agreement and the Product Schedule,
Artisan Components warrants for a period of ninety (90) days from the date of
delivery that the Licensed Product(s) as delivered by Artisan Components shall
be free from defects in media and shall substantially conform to the material
specifications of the electronic documentation, described in Appendix A-1 to the
Product Schedule. Artisan Components does not warrant that the use of the
Licensed Product(s) will be uninterrupted or error free. In the event of any
nonconformance of the Licensed Product, Customer shall promptly notify Artisan
Components in writing, and provide Artisan Components with evidence and
documentation which reproduces the claimed error and resultant output from the
execution or use of such code or data. Artisan Components' sole obligation and
Customer's exclusive remedy under this warranty shall be limited to use of
Artisan Components' commercially reasonable efforts to correct such defects and
provide the corrections to Customer. Artisan Components' warranty obligations
under this Master Agreement will not apply to failure by the Licensed Product(s)
to comply with the limited warranty herein due to accident, neglect, abuse, acts
of God or misapplication, modifications by Customer or due to models, flows,
design tools or any other information provided by Customer to Artisan Components
under this Master Agreement or the License Agreement. Artisan Components also
warrants that any services it provides under this Master Agreement or any
License Agreement will be performed in a professional manner, and Customer and
Artisan Components agree that Customer's sole remedy, and Artisan Components'
sole liability for any breach of the foregoing warranty is that, on Customer's
written request, Artisan Components will re-perform the service in a manner that
does comply with the warranty. Further, any silicon debugging or product
engineering provided by Artisan Components pursuant to Section 3.2 above is
provided "AS IS."
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
14
DRAFT DATED JUNE 24, 2002
10.3 EXCEPT AS SPECIFICALLY SET FORTH IN THIS SECTION 10, ARTISAN
COMPONENTS AND ITS LICENSORS DO NOT MAKE ANY EXPRESS, IMPLIED OR STATUTORY
WARRANTIES, INCLUDING BUT NOT LIMITED TO THE WARRANTIES OF MERCHANTABILITY AND
FITNESS FOR A PARTICULAR PURPOSE, OR ARISING FROM A COURSE OF DEALING, TRADE
USAGE OR TRADE PRACTICE.
11. INDEMNIFICATION BY ARTISAN COMPONENTS
11.1 Artisan Components shall, at its own expense, defend or at its option,
settle any claim, suit or proceeding brought by a third party against Customer
or its officers, directors or employees for direct infringement of any valid
Intellectual Property right (other than patent right) or [***] patent of such
third party, by virtue of Customer's authorized Use of any of the Licensed
Product(s) pursuant to the terms of the License Agreement, and shall pay any
settlement amounts or damages finally awarded in such claim, suit or proceeding;
provided that Customer: (a) promptly notifies Artisan Components in writing of
such claim, suit or proceeding (provided, however, that Customer's failure to
give prompt notice shall not reduce Artisan Components' obligations set forth in
this section except to the extent that Artisan Components has been prejudiced
thereby), (b) gives Artisan Components sole control over the defense and/or
settlement of such claim, suit or proceeding; and (c) reasonably cooperates and
provides all available information, assistance and authority to defend or settle
the claim, suit or proceeding. Artisan Components shall not enter into any
settlement or consent decree that results in an admission of liability by
Customer or the entry of injunctive relief against Customer without Customer's
prior written consent, which shall not be unreasonably withheld or delayed.
Artisan Components shall not be liable for any costs, expenses, damages or fees
incurred by Customer in defending such action or claim unless authorized in
advance in writing by Artisan Components. Furthermore, Artisan will have no
liability under this Master Agreement or the License Agreement for any
infringement claim to the extent it (i) is based on modification of a Licensed
Product other than by Artisan Components, with or without authorization if such
infringement would have been avoided by the use of an unmodified version of the
Licensed Products; (ii) results from failure of Customer to use an updated
version of an unmodified version of the Licensed Product; (iii) is based on the
combination or use of a Licensed Product with any other software, hardware,
data, program or device not provided by Artisan Components if such infringement
would have been avoided by the use of the Licensed Products alone; or (iv)
results from compliance by Artisan Components with designs, plans or
specifications furnished by Customer.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
15
DRAFT DATED JUNE 24, 2002
11.2 Any action to be brought to prevent or enjoin any third party from
infringement of any patent, copyright or other proprietary rights of Artisan
Components with respect to the Licensed Product(s) shall be brought exclusively
by Artisan Components or Artisan Components' designee, in Artisan Components'
sole discretion and as between Customer and Artisan Components, at Artisan
Components' sole cost and expense.
11.3 If the Licensed Product(s) is, or in Artisan Components' opinion is
likely to become the subject of a claim, suit, or proceeding alleging
infringement, Artisan Components may, and in the event the Licensed Product(s)
is held to infringe any third party Intellectual Property Right, Artisan
Components shall: (a) procure, at no cost to Customer, the right to continue
Usage of the Licensed Product; (b) replace or modify the Licensed Product, at no
cost to Customer, to make it non-infringing, provided that substantially the
same function is performed by the replacement of modified Licensed Product(s),
or (c) if the right to continue Usage cannot be reasonably procured for Customer
or the Licensed Product(s) cannot be replaced or modified to make it
non-infringing, terminate the license of such Licensed Product(s), remove the
Licensed Product(s) and grant Customer refund credit on the License and
Customization Service Fees attributable to such Licensed Product(s) as
depreciated on a straight-line [***] basis.
11.4 The foregoing states Artisan Components' sole obligations and entire
liability with respect to any claimed infringement of the Licensed Product(s) of
any Intellectual Property or other rights of any third party.
12. LIMITATION OF LIABILITY
12.1 EXCEPT FOR ANY UNAUTHORIZED (OR UNREPORTED) USE, REPRODUCTION OR
DISTRIBUTION, IN WHOLE OR IN PART, OF ANY LICENSED PRODUCT OR ANY INTELLECTUAL
PROPERTY RIGHTS CONTAINED THEREIN, AND EXCEPT FOR DAMAGES ARISING FROM A BREACH
OF THE OBLIGATIONS OF CONFIDENTIALITY UNDER [***], OR FOR OBLIGATIONS UNDER
[***] OR [***], IN NO EVENT WILL EITHER PARTY OR ITS LICENSORS OR SUPPLIERS BE
LIABLE FOR ANY LOSS OR DAMAGE TO REVENUES, PROFITS, OTHER ECONOMIC LOSS OR
GOODWILL OR COSTS OF REPLACEMENT GOODS OR SERVICES OR ANY OTHER SPECIAL,
INCIDENTAL, EXEMPLARY, INDIRECT OR CONSEQUENTIAL DAMAGES OF ANY KIND, ARISING
OUT OF OR RELATING TO THIS MASTER AGREEMENT, THE LICENSE AGREEMENT, LICENSED
INTEGRATED CIRCUITS OR THE LICENSED PRODUCT(S), OR RESULTING FROM ITS
PERFORMANCE OR FAILURE TO PERFORM PURSUANT TO THE TERMS OF THIS MASTER AGREEMENT
OR THE LICENSE AGREEMENT OR RESULTING FROM THE FURNISHING, PERFORMANCE, DELAY IN
DELIVERY, OR USE OR LOSS OF USE OF ANY LICENSED PRODUCT(S) OR OTHER MATERIALS
DELIVERED TO CUSTOMER HEREUNDER, HOWEVER CAUSED AND WHETHER BASED IN BREACH OF
CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY OF
LIABILITY. THE FOREGOING LIMITATIONS SHALL APPLY EVEN IF THE OTHER PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE
OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY STATED HEREIN.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
16
DRAFT DATED JUNE 24, 2002
12.2 [***] and its licensors' and suppliers' aggregate liability to the
[***] under any provision of this Master Agreement and the License Agreement
shall be limited to the total License and Customization Service Fees actually
paid and License and Customization Service Fees payable by Customer to Artisan
Components for the Licensed Product(s) in question. Notwithstanding the
foregoing, the limitation shall be [***] in the aggregate for liability
resulting from unauthorized (or unreported) use, reproduction or distribution,
in whole or in part, of any Licensed Product or any Intellectual Property rights
contained therein, a party's breach of [***] or a party's obligations under
[***] or [***]. The existence of more than one claim will not enlarge or extend
the limits set forth in this [***].
13. RELEASE OF PERFORMANCE INFORMATION
Customer shall not distribute, externally or to third parties, any reports
or statements that directly compare the speed, functionality or other
performance results of the Licensed Product(s) with any other products of
Customer or any third party that are similar to the Licensed Product(s) without
the prior written approval of Artisan Components.
14. PUBLICITY; CONFIDENTIALITY
14.1 Except to the extent required by applicable law, neither party shall
announce or publicly disclose the terms or conditions of this Master Agreement
or the License Agreement without prior written approval from the other party;
provided, however, that either party shall have the right to publicly disclose
the following: (a) that Customer is a customer of Artisan Components, (b) that
Artisan Components has provided the Licensed Product(s) to Customer and that the
Licensed Product(s) were Used in the development of the Licensed Integrated
Circuit, or (c) a product description of the Licensed Product(s) as contained in
Artisan Components' standard product literature. In addition, either party may
issue a press release related to this Master Agreement or License Agreement upon
the other party's prior written approval (such approval not to be unreasonably
withheld or delayed). Once approved, the statements in a press release remain
approved until approval is specifically revoked, in writing.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
17
DRAFT DATED JUNE 24, 2002
14.2 The parties acknowledge that by reason of their relationship to each
other hereunder, each may have access to certain information and materials
concerning the other's business, plans, customers, technology and products that
is confidential to that other party. Such information and materials will be
marked as "Confidential" or "Proprietary" or otherwise clearly identified as
confidential or proprietary ("Confidential Information"). In the event such
disclosure is initially oral or visual and not reduced to writing, it shall be
identified as confidential at the time of disclosure and summarized or
identified in a written document, which shall be marked with an appropriate
legend such as "Confidential" or "Proprietary" and provided to the other party
within thirty (30) days following such disclosure. Notwithstanding the
foregoing, the Licensed Product(s) are Confidential Information of Artisan
Components regardless of whether they are marked confidential or proprietary
and/or summarized in a writing. Each party agrees that except as may otherwise
be stated herein, it shall not use, except to perform its obligations and/or to
exercise its rights and licenses specified under this Master Agreement or the
License Agreement, nor disclose to any third party (except as provided in
section 2 of this Master Agreement and the License Agreement), any such
Confidential Information revealed to it by the other party. Each party shall
take reasonable precautions to protect the confidentiality of such information,
which in any event will be no less than what it takes with respect to its own
similar confidential information.
14.3 Information shall not be deemed Confidential Information hereunder if
such information:
(I) is known to the recipient at the time of disclosure;
(II) hereafter becomes known (independently of disclosure by the
providing party) to the recipient directly or indirectly from a source
other than one having an obligation of confidentiality to the providing
party;
(III) becomes publicly available or otherwise ceases to be secret or
confidential, except through a breach of this Master Agreement or the
License Agreement by the recipient;
(IV) was independently developed by the recipient without use of the
disclosing party's Confidential Information;
(V) is required to be disclosed pursuant to any statutory or
regulatory authority, provided the disclosing party is given prompt notice
of such requirement and the scope of such disclosure is limited to the
extent possible;
(VI) is required to be disclosed by a court order, provided the
disclosing party is given prompt notice of such order and provided the
opportunity to contest it; or
(VII) is reasonably necessary to disclose in order to enforce this
Master Agreement or the License Agreement.
14.4 As to each item of Confidential Information, the provisions of this
Section 14 will continue for three (3) years following first receipt of such
information, except for the Licensed Product(s), for which the provisions of
this Section 14 will continue for five (5) years following any termination or
expiration of the License Agreement.
18
DRAFT DATED JUNE 24, 2002
15. GOVERNING LAW
This Master Agreement and the License Agreement shall be governed by and
construed in accordance with the laws of the State of California, without regard
to the conflict of laws provisions thereof. Neither this Master Agreement nor
the License Agreement will be governed by the United Nations Convention of
Contracts for the International Sale of Goods, the application of which is
hereby expressly excluded.
16. [***]
16.1 Neither this Master Agreement nor the License Agreement nor any rights
or obligations hereunder or thereunder, in whole or in part, shall be [***] by
operation of law or otherwise, or [***] except upon [***] of Artisan Components.
[***] Any unauthorized attempt by Customer to [***] this Master Agreement or the
License Agreement or any rights or obligations hereunder or thereunder shall be
null and void. Artisan Components shall [***] this Master Agreement or any
License Agreement [***]. Notwithstanding the foregoing, Artisan Components
agrees that this Master Agreement, any License Agreement and all of Customer's
rights and interests hereunder or there-under, [***] by way of a first ranking
fixed pledge and charge by Customer for the benefit of [***] and [***] to secure
debt financing made available to Customer in connection with the construction of
Customer's new wafer fab facility. Subject to the foregoing, this Master
Agreement and any License Agreement will be binding upon and inure to the
benefits of the parties hereto[***].
17. NOTICE
Any notices required to be given pursuant to this Master Agreement or the
License Agreement shall be in writing, sent via certified mail, return receipt
requested, express courier, or by facsimile (a confirmed copy of which to be
sent promptly by mail to addressee) to the address of Artisan Components or
Customer as set forth below or to such other address as may be specified from
time to time by notice in writing, and such notice shall be deemed to have been
received on the earlier of (a) the date when actually received or (b) if by
facsimile, when the sending party shall have received a facsimile confirmation
that the message has been received by the receiving party's facsimile machine.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
19
DRAFT DATED JUNE 24, 2002
If to Artisan Components: If to Customer:
Artisan Components, Inc. Tower Semiconductor Ltd.
000 Xxxxxxx Xxxxx X.X. Xxx 000
Xxxxxxxxx, XX 00000 Xxxxxx Haemek
[***] 00000 Xxxxxx
[***] Attn: Chief Executive Officer
[***] Telephone: x000-(0)-000-0000
Facsimile: x000-(0)-000-0000
With a copy to:
[***], Artisan Components, Inc.
at the same address
18. SEVERABILITY AND WAIVER
18.1 The invalidity or unenforceability of any particular provision of this
Master Agreement or License Agreement shall not affect the other provisions of
this Master Agreement or the License Agreement, respectively, and shall be
construed in all respects as if such invalid or unenforceable provisions were
omitted.
18.2 The waiver by either party of any default or breach of this Master
Agreement or the License Agreement shall not constitute a waiver of any other
subsequent default or breach.
18.3 Failure or delay by either party in exercising any right or power
hereunder shall not operate as a waiver of such right or power.
19. INDEMNIFICATION
19.1 Customer shall, at its own expense, defend or at its option, settle
any claim, suit or proceeding brought by a third party against Artisan
Components or its officers, directors or employees for (i) any product liability
claim for death, personal injury or property damage caused by Modifications made
to the Licensed Integrated Circuits by or on behalf of Customer; (ii) Customer's
gross negligence or willful misconduct; and (iii) Artisan Components' authorized
use of the Required Data, including any claim that the Required Data directly
infringes any valid Intellectual Property right (other than patent right) or
[***], patent of such third party. Customer shall pay any settlement amounts or
damages finally awarded in such claim, suit or proceeding; provided that Artisan
Components (a) promptly notifies Customer in writing of such claim, suit or
proceeding (provided, however, that Artisan Components' failure to give prompt
notice shall not reduce Customer's obligations set forth in this section except
to the extent that Customer has been prejudiced thereby), (b) gives Customer
sole control over the defense and/or settlement of such claim, suit or
proceeding; and (c) reasonably cooperates and provides all available
information, assistance and authority to defend or settle the claim, suit or
proceeding. Customer shall not enter into any settlement or consent decree that
results in an admission of liability by Artisan Components or the entry of
injunctive relief against Artisan Components without Artisan Components' prior
written consent, which shall not be unreasonably withheld or delayed. Customer
shall not be liable for any costs, expenses, damages or fees incurred by Artisan
Components in defending such action or claim unless authorized in advance in
writing by Customer.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
20
DRAFT DATED JUNE 24, 2002
19.2 The Licensed Product(s) are not specifically developed or licensed for
use in the planning, construction, maintenance, operation or other use of any
nuclear facility, or for the flight, navigation or communication of aircraft or
ground support equipment, or for weapons or munitions use, medical life support
use or in any other inherently dangerous activity. Customer agrees that Artisan
Components shall not be liable for any claims, losses, costs or liabilities
arising from such use if Customer or its distributors or customers use the
Licensed Product(s) for such applications.
20. ATTORNEYS' FEES
The prevailing party in any action to enforce the terms of this Master
Agreement or the License Agreement shall be entitled to reasonable attorneys'
fees and other costs and expenses incurred by it in connection with such action.
21. MISCELLANEOUS TERMS
21.1 The relationship of the parties hereto is that of independent
contractors, and neither party is an employee, agent, partner or joint venturer
of the other.
21.2 Except for payments due under the License Agreement by Customer,
neither party shall have liability for its failure to perform its obligations
under this Master Agreement or the License Agreement when due to circumstances
beyond its reasonable control.
21.3 If Customer distributes the Front-End Views and/or Back-End Views, as
authorized herein, to an agency, department, or other entity of the United
States Government ("Government"), the Government's use, reproduction, release,
modification, disclosure or transfer of the Licensed Product(s), or of any
related documentation of any kind, including technical data, is restricted in
accordance with Federal Acquisition Regulation ("FAR") 12.212 for civilian
agencies and Defense Federal Acquisition Regulation Supplement ("DFARS")
227.7202 for military agencies. The Licensed Product(s) are commercial. The use
of the Licensed Product(s) by any Government agency, department, or other entity
of the Government, is further restricted in accordance with the terms of the
License Agreement, or any modification hereto. Customer will affix the following
legend before delivery to the Government of each of the Front-End Views and/or
Back-End Views to be delivered to the Government:
Use, duplication, reproduction, release, modification, disclosure or
transfer of this commercial product and accompanying documentation, is
restricted in accordance with FAR 12.212 and DFARS 227.7202, and by a
license agreement. Contractor/manufacturer is: Artisan Components, Inc.,
000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000.
21
DRAFT DATED JUNE 24, 2002
21.4 BOTH PARTIES ACKNOWLEDGE THAT THIS MASTER AGREEMENT INCLUDING THE
EXHIBITS AND APPENDICES ATTACHED HERETO AND THE PRODUCT SCHEDULE, CONSTITUTE THE
COMPLETE AND EXCLUSIVE STATEMENT OF THE MUTUAL UNDERSTANDING OF THE PARTIES AND
SUPERSEDES AND CANCELS ALL CONFLICTING TERMS AND CONDITIONS AND ALL PREVIOUS AND
CONTEMPORANEOUS WRITTEN AND ORAL AGREEMENTS AND COMMUNICATIONS RELATING TO THE
SUBJECT MATTER HEREOF, INCLUDING ANY TERMS AND CONDITIONS THAT MAY BE INDICATED
IN ANY CUSTOMER PURCHASE ORDER. NEITHER THIS MASTER AGREEMENT NOR THE LICENSE
AGREEMENT SHALL BE MODIFIED, SUPPLEMENTED, QUALIFIED, OR INTERPRETED BY ANY
TRADE USAGE OR PRIOR COURSE OF DEALING NOT MADE A PART OF THIS MASTER AGREEMENT
OR THE LICENSE AGREEMENT BY ITS EXPRESS TERMS. NEITHER THIS MASTER AGREEMENT NOR
THE LICENSE AGREEMENT SHALL BE MODIFIED OR AMENDED EXCEPT IN WRITING AND
EXECUTED BY DULY AUTHORIZED REPRESENTATIVES OF BOTH PARTIES.
BOTH PARTIES ACKNOWLEDGE THAT THEY HAVE READ THIS MASTER AGREEMENT,
UNDERSTAND IT AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS AS EVIDENCED BY
THEIR SIGNATURES BELOW.
ARTISAN COMPONENTS, INC.
By: __________________________________________
Signature of an Officer of the Corporation
Name: __________________________________________
Printed name of the Signing Officer
Title:__________________________________________
Date: __________________________________________
CUSTOMER: TOWER SEMICONDUCTOR, LTD.
By: __________________________________________
Signature of an Authorized Representative
Name: __________________________________________
Printed name of the Authorized Representative
Title:__________________________________________
Date: __________________________________________
22
DRAFT DATED JUNE 24, 2002
EXHIBIT A
TO
MASTER AGREEMENT
ENGINEERING CHANGE ORDER
(ECO) REQUEST FORM
PRODUCT SCHEDULE NO. ____
REQUEST NO. ____
Customer: ............................. Date: .............................
Requestor: ............................ Phone: ............................
E-mail Address: ....................... Fax: ..............................
Project: ..............................
This Engineering Change Order Form (ECO) is to be used as an official
notification to Artisan Components of any changes in design or specification
made to a project. Once this form has been received, Artisan Components will
evaluate the schedule and cost impacts of these changes and inform you of the
results.
Description of Requested Change: .............................................
.............................................................................
.............................................................................
.............................................................................
.............................................................................
.............................................................................
.............................................................................
.............................................................................
Requestor's Signature: ...................... Date: ....................
Engineering Manager's Approval: ............. Date: ....................
23
DRAFT DATED JUNE 24, 2002
EXHIBIT B
TO
MASTER AGREEMENT
ENGINEERING CHANGE ORDER
(ECO) RESPONSE FORM
PRODUCT SCHEDULE NO. ____
REQUEST NO. ____
Customer: ....................................................................
Requestor: ........................... Phone: ..............................
E-mail Address: ...................... Fax: ................................
Project: .....................................................................
Artisan Components has evaluated your attached ECO request, its impact on your
schedule and any additional charges associated with the request. This evaluation
is described below:
In summary, this change will:
* Add ______ working days to the schedule
* Will not impact the schedule
* Require an increase/decrease in the cost of
$________ additional charges, payable
upon the following terms: [***] upon Artisan Project
Management approval, net [***], and [***]
upon Customer's receipt of the ECO delivery, net [***].
* Will not require any of your project
Please sign this form to acknowledge that you understand the impact of your
requested changes. Signing the Refusal indicates that you DO NOT authorize
Artisan Components to proceed with the requested change(s). Signing the
Acceptance authorizes Artisan Components to proceed with these changes. If
additional costs are indicated, then the buyer's signature is required. This
form must be signed and returned to Artisan Components by ___________________.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
24
DRAFT DATED JUNE 24, 2002
Requestor's Refusal: ............................... Date: ...............
Requestor's Acceptance: ............................ Date: ...............
Buyer's Approval: .................................. Date: ...............
Artisan Sales Approval: ............................ Date: ...............
Artisan Project Management Approval: ............... Date: ...............
25
DRAFT DATED JUNE 24, 2002
EXHIBIT C
TO
MASTER AGREEMENT
PRODUCT SCHEDULE NO. 1
This PRODUCT SCHEDULE Number One (this "Product Schedule") is made in
connection with that certain Master Agreement, Number ______, with an Effective
Date of _____________ (the "Master Agreement"), by and between ARTISAN
COMPONENTS, INC., a Delaware corporation, with its principal place of business
at 000 Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000 (hereinafter referred to
as "Artisan Components"), and Tower Semiconductor Ltd., a company organized
under the laws of Israel with its principal place of business at Ramat Gavriel
Industry Zone, Xxxxxx Haemek, 23105 Israel (hereinafter referred to as
"Customer"). This Product Schedule is made effective as of ________________ (the
"License Agreement Effective Date").
RECITALS
The parties desire to license certain Licensed Product(s) described herein
pursuant to the terms and conditions of the Master Agreement and this Product
Schedule.
AGREEMENT
1. LICENSED PRODUCT(S).
(A) LICENSED PRODUCT(S). The parties agree that the terms and conditions of
the Master Agreement are incorporated herein by this reference, and Appendix A-1
to this Product Schedule is added to and made a part of this Product Schedule.
The Licensed Product(s) described in Appendix A-1 are Licensed Product(s) for
purposes of the Master Agreement and this Product Schedule. Appendix A-1 sets
forth the Deliverables and Delivery Schedule relating to the Licensed
Product(s).
(B) PAYMENT FOR LICENSED PRODUCT(S). The License and Customization Service
Fees, Royalties and Maintenance Fees for the Licensed Product(s) are set forth
in Appendix B-1 to this Product Schedule. Appendix B-1 is added to and made a
part of this Product Schedule.
(C) TECHNICAL SUPPORT AND MAINTENANCE. Artisan Components will provide
Customer with the technical support and maintenance described in Appendix C-1 to
this Product Schedule for the Licensed Product(s). Appendix C-1 is added to and
made a part of this Product Schedule.
2. LICENSE AGREEMENT TERM. This License Agreement is effective as of the License
Agreement Effective Date and shall remain in full force and effect for a period
of seven (7) years, unless earlier terminated as provided in the Master
Agreement. Unless earlier terminated as provided in the Master Agreement, the
License Agreement will automatically renew at the end of each term for
consecutive one (1) year renewal periods, unless either party notifies the other
at least [***] prior to the end of the then current term that it does not desire
the License Agreement to renew for another year.
26
DRAFT DATED JUNE 24, 2002
3. GENERAL. Unless otherwise defined in this Product Schedule, capitalized terms
used in this Product Schedule shall have the same meaning as set forth in the
Master Agreement.
Accepted and Agreed To:
ARTISAN COMPONENTS, INC.
By: __________________________________________
Signature of an Officer of the Corporation
Name: __________________________________________
Printed name of the Signing Officer
Title:__________________________________________
Date: __________________________________________
CUSTOMER
By: __________________________________________
Signature of an Authorized Representative
Name: __________________________________________
Printed name of the Authorized Representative
Title:__________________________________________
Date: __________________________________________
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
27
DRAFT DATED JUNE 24, 2002
APPENDIX A-1
TO
PRODUCT SCHEDULE NO. 1
LICENSED PRODUCT(S), DELIVERABLE(S), TARGET DELIVERY DATES AND REQUIRED DATA
I. LICENSED PRODUCT(S) (all optimized for Customer's 0.18um process).
-------------------------------------------------------------------------------
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
-------------------------------------------------------------------------------
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
28
DRAFT DATED JUNE 24, 2002
II. DELIVERABLES
FOR STANDARD CELLS AND I/O'S: Standard Cell and I/O CAD Deliverables - EDA
Package 3.0
---------------------------------------------------------------------------------------------
DESIGN PHASE TOOL VENDOR TOOL FILES PROVIDED VIEW
VERSION BY ARTISAN VERSION
---------------------------------------------------------------------------------------------
VERILOG [***] [***] [***] .v --
SIMULATION.
(UNIT DELAY ONLY)
---------------------------------------------------------------------------
[***] [***] [***] .v --
---------------------------------------------------------------------------
[***] [***] [***] .v --
---------------------------------------------------------------------------
[***] [***] [***] .v --
---------------------------------------------------------------------------------------------
SDF COMPATIB. -- -- -- -- [***]
---------------------------------------------------------------------------------------------
VHDL/VITAL [***] [***] [***] [***] --
SIMULATION
---------------------------------------------------------------------------
[***] [***] [***] [***] --
---------------------------------------------------------------------------
[***] [***] [***] [***] --
---------------------------------------------------------------------------------------------
SDF COMPATIB. -- -- -- -- [***]
---------------------------------------------------------------------------------------------
SYNTHESIS [***] [***] [***] [***] --
---------------------------------------------------------------------------------------------
[***] [***] [***] [***] --
---------------------------------------------------------------------------------------------
[***] [***] [***] [***] --
---------------------------------------------------------------------------------------------
PHYSICAL [***] [***] [***] [***] --
SYNTHESIS
---------------------------------------------------------------------------------------------
STATIC TIMING / [***] [***] [***] [***] --
DELAY CALCULATION
---------------------------------------------------------------------------
[***] [***] [***] [***] [***]
---------------------------------------------------------------------------------------------
SCHEMATIC ENTRY [***] [***] [***] [***] --
(FOR REFERENCE
PURPOSES ONLY)
---------------------------------------------------------------------------
---------------------------------------------------------------------------------------------
POWER EST./OPT. [***] [***] [***] [***] --
---------------------------------------------------------------------------------------------
PLACE&ROUTE [***] [***] [***] [***] [***]
[***] [***] [***]
------------------------------
[***] [***]
---------------------------------------------------------------------------
[***] [***] [***] [***] --
------------------------------
[***] --
------------------------------
[***] --
------------------------------
[***] --
------------------------------
[***] --
------------------------------
[***] [***]
---------------------------------------------------------------------------------------------
VERIFICATION [***] [***] [***] [***] [***]
(DRC,LVS)
------------------------------
CDL netlist --
---------------------------------------------------------------------------------------------
FOR STANDARD CELLS, CALIBRE DRC AND LVS SHALL BE PROVIDED BY CUSTOMER.
FOR MEMORIES: Memories CAD Deliverables - EDA Package 3.0
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
29
DRAFT DATED JUNE 24, 2002
-------------------------------------------------------------------------------------------------
DESIGN PHASE TOOL VENDOR TOOL FILES PROVIDED VIEW
VERSION BY ARTISAN VERSION
-------------------------------------------------------------------------------------------------
VERILOG [***] [***] [***] [***] --
SIMULATION (UNIT
DELAY ONLY).
-------------------------------------------------------------------------------
[***] [***] [***] [***] --
-------------------------------------------------------------------------------
[***] [***] [***] [***] --
-------------------------------------------------------------------------------
[***] [***] [***] [***] --
-------------------------------------------------------------------------------------------------
SDF COMPATIB. -- -- -- -- [***]
-------------------------------------------------------------------------------------------------
VHDL/VITAL [***] [***] [***] [***] --
SIMULATION
-------------------------------------------------------------------------------
[***] [***] [***] [***] --
-------------------------------------------------------------------------------
[***] [***] [***] [***] --
-------------------------------------------------------------------------------------------------
SDF COMPATIB. -- -- -- -- [***]
-------------------------------------------------------------------------------------------------
SYNTHESIS [***] [***] [***] [***] --
-------------------------------------------------------------------------------
PHYSICAL [***] [***] [***] [***] --
SYNTHESIS
-------------------------------------------------------------------------------------------------
STATIC TIMING / [***] [***] [***] [***] --
DELAY CALCULATION
-------------------------------------------------------------------------------
[***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------------
POWER EST./OPT. [***] [***] [***] [***] --
-------------------------------------------------------------------------------------------------
PLACE&ROUTE [***] [***] [***] [***] [***]
[***] [***] [***]
------------------------------
[***] [***]
-------------------------------------------------------------------------------
[***] [***] [***] [***] [***]
-------------------------------------------------------------------------------------------------
VERIFICATION [***] [***] [***] [***] [***]
(DRC,LVS)
------------------------------
[***] --
-------------------------------------------------------------------------------------------------
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
30
DRAFT DATED JUNE 24, 2002
III. TARGET DELIVERY DATES
PHASE I
--------------------------------------- ----------------------------------------
PRODUCTS TARGET DELIVERY DATE
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
PHASE II
--------------------------------------- ----------------------------------------
PRODUCTS TARGET DELIVERY DATE
--------------------------------------- ----------------------------------------
--------------------------------------- ----------------------------------------
[***] [***]
--------------------------------------- ----------------------------------------
* ARO means the later of: executed Agreement, purchase order, and final versions
of all Required Data received from Customer.
** Artisan Components shall issue a written report to Customer summarizing the
results of such tests. The written report shall be provided to Customer within
30 days after the Test Chip is provided to Artisan Components or at a date
mutually agreed in advance by the parties as shown in the appropriate Product
Schedule. If the Artisan Components test suites indicate a functionality problem
arising from either the optimized library or the applicable Customer Required
Data, the parties shall negotiate in good faith to determine the corrective
action prior to release of such report to third parties.
IV. REQUIRED DATA
------------------------------------------ ----------------------------------
RECEIVABLE FORMAT
========================================== ==================================
------------------------------------------ ----------------------------------
[***] [***]
------------------------------------------ ----------------------------------
------------------------------------------ ----------------------------------
[***] [***]
------------------------------------------ ----------------------------------
------------------------------------------ ----------------------------------
[***] [***]
------------------------------------------ ----------------------------------
------------------------------------------ ----------------------------------
[***] [***]
------------------------------------------ ----------------------------------
------------------------------------------ ----------------------------------
[***] [***]
------------------------------------------ ----------------------------------
------------------------------------------ ----------------------------------
[***] [***]
------------------------------------------ ----------------------------------
------------------------------------------ ----------------------------------
[***] [***]
------------------------------------------ ----------------------------------
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
31
DRAFT DATED JUNE 24, 2002
APPENDIX B-1
TO
PRODUCT SCHEDULE NO. 1
LICENSE AND CUSTOMIZATION SERVICE FEES, ROYALTIES, TECHNICAL SUPPORT AND
MAINTENANCE FEES, AND VERIFICATION PROCEDURE
I. LICENSE AND CUSTOMIZATION SERVICE FEES
For each Licensed Product listed herein, [***] of the Fees paid are for License
Fees and [***] of the Fees are paid for Customization Services Fees. Of the
overall License Fees and Customization Service Fees set forth in this Exhibit
B-1 (the "License and Customization Service Fees"), [***] are paid for License
Fees and [***] are paid for Customization Service Fees.
PHASE I
-------------------------------------- ----------------------------------------
PRODUCTS FEES
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
TOTAL FEES FOR PHASE I [***]
-------------------------------------- ----------------------------------------
PHASE II
-------------------------------------- ----------------------------------------
PRODUCTS FEES
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
[***] [***]
-------------------------------------- ----------------------------------------
-------------------------------------- ----------------------------------------
TOTAL FEES FOR PHASE II [***]
-------------------------------------- ----------------------------------------
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
32
DRAFT DATED JUNE 24, 2002
II. ROYALTIES
Customer further shall pay to Artisan Components the following running
royalties with respect to all Wafers:
[***] of Net Revenue from Wafer*
* "Net Revenue From Wafer" means the gross consideration (whether in cash
or kind) invoiced by Customer from sales of Wafers less the following only
as applicable to the Wafer sales transaction (i) separately itemized normal
and customary rebates, and cash and trade discounts actually taken, (ii)
separately itemized sales, use and/or other excise taxes or duties actually
paid, (iii) [***], (iv) separately itemized insurance costs and outbound
transportation charges prepaid or allowed, (v) separately itemized import
and/or export duties actually paid, (vi) separately itemized amounts
allowed or credited due to returns, and (vii) [***]. In addition, when a
Wafer is sold in a packaged or tested form, the gross consideration
(whether in cash or kind) invoiced by Customer for the purposes of
calculating the Net Revenue From Wafer shall be less the costs of packaging
and testing. In the event a Wafer is sold to either an Affiliate or a third
party from whom Customer purchases the Wafer or any product derived from
the Wafer (such as a packaged and tested IC), the "Net Revenue from Wafer"
shall be deemed to be the greater of (x) the Net Revenue From Wafer as
calculated above; and [***].
III. TECHNICAL SUPPORT AND MAINTENANCE FEES
The Annual Maintenance Fee for the first year is [***], and the renewal
rate for subsequent years is [***]. As set forth in Appendix C-1 to the
Product Schedule, the first year of annual maintenance begins ninety (90)
days after delivery of the applicable Licensed Product(s) ("Maintenance
Commencement Date") and ends one (1) year later. The Annual Maintenance Fee
is due in full for the initial one (1) year term on or before the
Maintenance Commencement Date. Thereafter, the Annual Maintenance Fee shall
be due and payable in full on or before the beginning date of the
consecutive one (1) year renewal term for which payment is due.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
33
DRAFT DATED JUNE 24, 2002
IV. RESTRICTED CREDITS MAY ACCRUE FOR NEW LICENSE AND CUSTOMIZATION SERVICE
FEES APPLICABLE TO NEW/ADDITIONAL LICENSED PRODUCT(S)
Artisan Components will accrue restricted credits ("Restricted Credits")
for Customer based on royalty fees paid to Artisan Components when due
hereunder as follows. [***] of a Restricted Credit will accrue for each
[***] of royalty fees paid to Artisan Components when due hereunder. One
Restricted Credit will be applied by Artisan Components only towards [***]
of new License Fees and/or development fees for such products and/or
services (other than the License and Customization Service Fees initially
set forth in this Appendix B-1), and NOT royalty fees, for new/additional
Licensed Product(s) ("New Orders") ordered by Customer under a subsequent
Product Schedule (other than this Product Schedule) or ECO, if any;
provided, however, that (i) the maximum amount of Restricted Credits to
accrue for any process technology (including process derivatives) and be
applied against New Orders may not exceed the total amount of Licensed
Product(s) (Development Fees / License Fees/ Services Fees) orders placed
by Customer for such process (including process derivatives)1 and (ii) the
Restricted Credits may be applied only against New Orders set forth in a
firm order from Customer within [***] of the date the Restricted Credits
were accrued (date of accrual shall be the date Artisan Components receives
the royalty fees that earned the Restricted Credits). The foregoing does
not prohibit Customer from applying Restricted Credits earned from one
process to purchases of products for another process. Restricted Credits
have no cash value or refund value, and they may not be used for any
purpose except as specifically set forth above as a credit to be applied by
Artisan Components and authorized by Customer towards New Orders in
accordance with all of the above. Any Restricted Credits which are not
applied by Artisan Components towards New Orders as set forth above, for
any reason, shall be deemed void.
V. VERIFICATION PROCEDURE
DRC VERIFICATION FOR MEMORY GENERATORS
Artisan and Customer shall agree in writing to use a specific version of a
[***] and runset for validating the memory generators listed above before
Artisan commences work hereunder. Approximately [***] after the start of
this project, Artisan will provide Customer with Artisan's quality
assurance instance list. At least [***] prior to the intended delivery
date, Customer may provide Artisan a list of up to [***] additional
instances per generator (the "Instances") that it wishes to subject to DRC
verification.
Approximately, [***] prior to a product's intended delivery date of a
memory generator deliverable, Artisan will provide Customer GDSII files of
the Instances relevant to such deliverable (Prior to providing the GDSII
files, Artisan shall have run DRC on the Instances using the agreed upon
version of the DRC program and runset.). Within [***] of being provided an
Instance, Customer will: (1) run DRC on the Instances using the agreed upon
version of the DRC program and runset, and (2) report any DRC run errors,
if any, to Artisan. If Customer identifies DRC run errors, then Artisan
will work to correct such errors and redeliver the Instances to be retested
by Customer (Artisan and Customer will repeat this process until such
errors are corrected). If Customer reports to Artisan that there are no DRC
run errors or does not report to Artisan, Artisan will proceed to finalize
the memory generator deliverable for delivery to Customer.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
1 For example, if the total amount of orders placed by Customer for the
0.18-micron process technology (including for Enhanced 0.18-micron) equals
[***], then the maximum amount of Restricted Credits to accrue hereunder from
royalties paid on the 0.18-micron Wafers is [***].
34
DRAFT DATED JUNE 24, 0000
XXX XXXXXXXXXXXX FOR STANDARD CELLS
Artisan and Customer shall agree in writing to use a specific version of a
[***] and runset for validating the standard cell deliverables listed above
before Artisan commences work hereunder.
Approximately, [***] prior to a product's intended delivery date of a
standard cell deliverable, Artisan will provide Customer a GDSII file of
the deliverable (Prior to providing the GDSII file, Artisan shall have run
DRC on the GDSII file using the agreed upon version of the DRC program and
runset.). Within [***] of being provided the GDSII file, Customer will: (1)
run DRC on the GDSII file using the agreed upon version of the DRC program
and runset, and (2) report any DRC run errors, if any, to Artisan. If
Customer identifies DRC run errors, then Artisan will work to correct such
errors and redeliver the GDSII file to be retested by Customer (Artisan and
Customer will repeat this process until such errors are corrected). If
Customer reports to Artisan that there are no DRC run errors or does not
report to Artisan, Artisan will proceed to finalize the standard cell
deliverables for delivery to Customer.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
35
DRAFT DATED JUNE 24, 2002
APPENDIX C-1
TO
PRODUCT SCHEDULE NO. 1
TECHNICAL SUPPORT AND MAINTENANCE
This Support and Maintenance Appendix to License Agreement (this
"Appendix"), upon due completion and execution hereof, serves to amend that
certain License Agreement (the "License Agreement") comprised of that certain
Master Agreement Number ____, dated _________, ____, and that certain Product
Schedule Number ____, dated _________, ____, by and between Artisan Components,
Inc., a California corporation, with its principal place of business at 000
Xxxxxxx Xxxxx, Xxxxxxxxx, Xxxxxxxxxx 00000-0000 (hereinafter referred to as
"Artisan Components"), and Tower Semiconductor Ltd., a company organized under
the laws of Israel with its principal place of business at Ramat Gavriel
Industry Zone, Xxxxxx Haemek, 23105 Israel (hereinafter referred to as
"Customer").
RECITALS
The parties desire to amend the License Agreement to provide for the
following obligations and responsibilities of the parties relating to the
provisioning of technical support and maintenance for the Licensed Product(s).
The parties agree the below terms and conditions are added to and made a
part of the License Agreement:
APPENDIX
1. DEFINITIONS.
(A) "ERROR" shall mean a software problem or layout defect in the Licensed
Product deliverables provided by Artisan Components which causes a failure of
the Licensed Product(s) to substantially conform to the material specifications
described in Appendix A-1 to the Product Schedule. Errors do not include (i)
defects requiring silicon debugging and product engineering as described in
Section 6 below, (ii) changes to Licensed Product(s) to work with new or
different versions of EDA tools or operating systems, or (iii) changes to
Licensed Product(s) to work with process rule changes (i.e.,
recharacterizations).
(B) "WORKAROUND" shall mean a change in the way Customer accomplishes a
task using the Licensed Product, which may be of a temporary nature, to help
avoid the Error.
36
DRAFT DATED JUNE 24, 2002
(C) "SUPPORT LIAISON(S)" shall mean not more than [***] Customer technical
support personnel authorized to contact Artisan Components for purposes of
obtaining support and maintenance under the License Agreement.
(D) "UPDATE" means Update as defined in the License Agreement.
2. ARTISAN COMPONENTS' SUPPORT SERVICES.
Artisan Components will provide the following Support Services for the
Licensed Product(s):
(A) Telephone Hotline Support: Artisan Components' technical services
engineers will be available by telephone during Standard Hours (9:00 a.m. until
5:00 p.m. Pacific Local Time, Monday through Friday, excluding holidays on which
Artisan Components is not open for business) to answer questions from the
Support Liaison(s) about the installation and use of the Licensed Product(s),
including aiding in the diagnosis and resolution of Errors in the Licensed
Product(s). Artisan Components shall make reasonable commercial efforts to
respond to all Technical Support telephone calls within [***] from the time they
are received.
(B) E-mail and Facsimile ("Fax") support: Artisan Components' technical
services engineers will be available by e-mail and Fax during Standard Hours for
the same purposes as listed under Telephone Hotline Support. Artisan Components
shall make reasonable commercial efforts to acknowledge by return e-mail all
Technical Support requests via Fax or e-mail within [***] from the time they are
received.
(C) Designated Contacts: Artisan Components will designate no more than
[***] Artisan Components' technical employees to act as Technical Support
Contacts between Customer and Artisan Components. This list may be modified from
time to time by Artisan Components as is necessary in the conduct of its
business. In addition, Artisan Components will designate a [***] responsible for
priority escalation and ensuring Customer is satisfied with the level of support
received.
3. CORRECTION OF LICENSED PRODUCT ERRORS.
(A) Artisan Components agrees to use commercially reasonable efforts to
respond to reported Errors based upon the severity of the Error as follows:
(I) Critical Error. Customer is unable to use the Licensed Product(s)
because of suspected or actual Errors in the Licensed Product(s). Artisan
Components will respond to Critical Errors by assigning a technician to
investigate the Error within [***] from the time the Customer reports the
Error. Artisan Components will use commercially reasonable efforts to
provide a Workaround or an Update to fix Critical Errors as soon as
practical.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
37
DRAFT DATED JUNE 24, 2002
(II) Moderate Error. Customer is able to use the Licensed Product(s)
but is experiencing suspected or actual Errors in the Licensed Product(s)
causing interruption of Customer's use of the Licensed Product(s). Artisan
Components will respond to Moderate Errors by making commercially
reasonable efforts to assign a technician to investigate the Error within
[***] from the time the Customer reports the Error. Artisan Components will
use commercially reasonable efforts to provide a Workaround as soon as
practical, or to provide an Update to fix the Error in a [***] to [***] by
[***].
(III) Minor Error. Customer is experiencing a suspected or actual
Error in the Licensed Product(s) that limits some functionality of the
Licensed Product(s) or the Customer's support personnel need assistance or
information regarding the Licensed Product(s). Artisan Components will make
a commercially reasonable effort to respond to requests for information
within [***] and, if required, provide an Update within [***].
(B) With respect to Critical Errors, in the event Artisan Components cannot
find a correction or Workaround to the Critical Error within a reasonable period
of time, the parties will discuss having Artisan Components' engineer(s) visit
Customer's facilities to investigate and find a solution. In such event, if the
parties agree that the correction/Workaround may be more quickly achieved with
Artisan Components' engineer(s) on-site at Customer's facilities, Artisan
Components will, at its expense, send one or more engineers to Customer's
facilities as reasonably necessary to investigate and find a solution to the
Critical Error(s). If it is later found that such Critical Error is not
attributable to the Licensed Product(s) in the form as delivered by Artisan
Components (e.g., it is caused by third party software or modifications made by
Customer, etc.), Customer agrees to reimburse Artisan Components for its travel,
lodging and food expenses related to sending its engineers to Customer's site,
plus the current engineering fees as described in Section 6 below.
4. UPDATES.
Artisan Components agrees to provide the Customer one copy of each new
Update when such Update is commercially released by Artisan Components to its
other existing customers, or, if earlier, when such Updates are prepared
hereunder for Customer and in Artisan Components' discretion are ready for
release to Customer. Artisan Components shall be obligated hereunder to support
only the then-current Licensed Product(s) and, for a period of [***] following
the date of release of the then-current Licensed Product(s), the immediately
preceding Update of the Licensed Product(s). Any and all Updates provided to
Customer hereunder (including but not limited to Error corrections) are part of
the Licensed Product(s) and subject to all the terms and conditions of the
License Agreement.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
38
DRAFT DATED JUNE 24, 2002
5. MAINTENANCE AND SUPPORT RESPONSIBILITIES OF CUSTOMER.
In addition to the payment obligations set forth herein, Customer shall be
responsible for the following:
(A) Customer will maintain a list of no more than [***] who will act as
Support Liaison(s) between Customer and Artisan Components. Support Liaison(s)
shall be knowledgeable in the installation and use of the Licensed Product(s).
This list of Support Liaison(s) may be modified by Customer as is necessitated
by employee turnover and reassignments.
(B) Support Liaison(s) will promptly report Errors in the Licensed
Product(s) as they are discovered and will make good faith efforts to analyze
problems and recommend Workarounds.
(C) Customer will implement the Workarounds and/or Updates that Customer
accepts promptly. Customer acknowledges that Artisan Components shall not be
required to provide support hereunder to the extent the support issue has been
addressed without material loss of functionality in a Workaround and/or Update
that Customer has not implemented.
(D) Customer will provide sufficient information and assistance to Artisan
Components in order for Artisan Components to exercise its support obligations
in this Appendix, including but not limited to providing sufficient information
to enable Artisan Components to replicate the Error.
(E) In the event Customer desires Artisan Components to utilize third party
software in Customer's possession to replicate an Error and provide support
and/or maintenance hereunder, except as the parties may otherwise agree,
Customer is responsible for obtaining and maintaining during the term of this
Agreement, and Customer represents that it has obtained, all necessary rights
and licenses, at Customer's expense, from the licensors of the third party
software to authorize and enable Artisan Components to perform its obligations
under this Agreement relating to the third party software used with the Licensed
Product(s).
6. LIMITS OF SCOPE OF SUPPORT AND MAINTENANCE.
This Appendix sets forth the parties' rights and responsibilities with
respect to Artisan Components' support and maintenance of the Licensed
Product(s) and Updates thereto only during the period for which Customer pays
for support as set forth herein. Except as may otherwise be specified in the
Master License Agreement, License Agreement or other agreement entered into
between the parties, Artisan Components has no obligation to provide Customer
any support or maintenance services or Updates except as set forth under this
Appendix.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
39
DRAFT DATED JUNE 24, 2002
Notwithstanding anything to the contrary herein, the design and
verification techniques for the Licensed Product(s) used by Artisan Components
depend on the accuracy of models, flows and design tools, some of which are
provided by Artisan Components' licensees and their target foundries. Due to
practical limits on the accuracy of these models, flows and design tools, the
fabricated silicon behavior may not always agree with that predicted. In these
cases, upon Customer's request and upon a mutually agreed upon schedule, Artisan
Components will assist the Customer in silicon debugging and product engineering
at Artisan Components' then current standard hourly rate plus applicable
expenses. Silicon debugging and product engineering do not fall under the
support provisions set forth in this Appendix.
Furthermore, Artisan Components has no obligation to provide any support or
maintenance for any modifications made to the Licensed Product(s) by or for
Customer (other than by Artisan Components). If Customer reports an error or
requests information relating to use of the Licensed Product, such reported
error or information request must relate to use of the Licensed Product(s) in
the form as provided by Artisan Components. If Artisan Components spends any
time or resources on any error reports or information requests that are found
attributable to Customer's modifications (or how to make modifications to) the
Licensed Product, Artisan Components may charge Customer Artisan Components'
then current hourly engineering fees and out of pocket expenses for all time and
resources expended by Artisan Components on such matter(s). Customer will pay
any such invoices [***] from the date of the invoice.
Artisan Components shall have no responsibility for analyzing or correcting
errors in any third party software (other than to cooperate in providing
information about the Licensed Product(s) to the Customer) or testing any third
party software. Artisan Components shall not be responsible under this Appendix
to modify Licensed Product(s) to operate with any new or different versions of
third party software or any new third party software products.
7. TERM.
(A) Unless terminated as set forth hereunder, the maintenance and support
to be provided hereunder shall be available on a yearly basis, with the initial
yearly maintenance period beginning [***] after delivery of the Licensed
Product(s) ([***]) and ending one (1) year later. Thereafter, unless either
party notifies the other party otherwise, the term of this Appendix shall
automatically renew on the anniversary date of the Maintenance Commencement Date
for consecutive one (1) year terms, unless either party notifies the other party
at least forty-five (45) days prior to the end of the current Appendix term that
it does not desire this Appendix to renew.
(B) This Appendix, which is made a part of the License Agreement, may be
terminated as set forth in Section 9 of the Master Agreement (and this Appendix
will terminate as part of any termination of the License Agreement). Termination
of this Appendix does not necessarily mean termination of the Master License
Agreement, but termination of the Master License Agreement will be considered to
be termination of this Appendix.
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
40
DRAFT DATED JUNE 24, 2002
8. SUPPORT AND MAINTENANCE PAYMENT.
(A) For each yearly period under the term of this Appendix, Customer must
pay an annual support and maintenance fee ("Annual Maintenance Fee"). The Annual
Maintenance Fee is due in full for the initial one (1) year term of this
Appendix on or before the [***]. Thereafter, the Annual Maintenance Fee shall be
due and payable in full on or before the beginning date of the consecutive one
(1) year renewal term for which payment is due.
(B) The Annual Maintenance Fee will equal [***].
9. GENERAL.
Except as set forth herein, all terms and conditions of the License
Agreement shall remain in full force and effect. Unless otherwise defined in
this Appendix, capitalized terms used in this Appendix shall have the same
meaning as set forth in the License Agreement.
Accepted and Agreed To:
ARTISAN COMPONENTS, INC.
By: ___________________________________________
Signature of an Officer of the Corporation
Name: ___________________________________________
Printed name of the Signing Officer
Title:___________________________________________
Date: ___________________________________________
CUSTOMER
By: ___________________________________________
Signature of an Authorized Representative
Name: ___________________________________________
Printed name of the Authorized Representative
Title:___________________________________________
Date: ___________________________________________
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
41
DRAFT DATED JUNE 24, 2002
APPENDIX D-1
TO
PRODUCT SCHEDULE
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
[***]
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[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
42
DRAFT DATED JUNE 24, 2002
EXHIBIT D
TO
MASTER AGREEMENT
FORM OF ESCROW AGREEMENT
[***]
---------------------
[***] THE CONFIDENTIAL PORTION OF THIS AGREEMENT HAS BEEN OMITTED AND FILED
SEPARATELY WITH THE COMMISSION PURUSANT TO A REQUEST FOR CONFIDENTIALITY.
43
