Exhibit 10.25
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
TECHNOLOGY DEVELOPMENT
AND LICENSE AGREEMENT
This Technology Development and License Agreement ("Agreement") is entered into
as of October 1, 1998 (the "Effective Date"), by and between Advanced Micro
Devices, Inc. and its Subsidiaries ("AMD"), a Delaware Corporation, with
principal offices located at Xxx XXX Xxxxx, X.X. Xxx 0000, Xxxxxxxxx, Xxxxxxxxxx
00000-0000, and Motorola, Inc. and its Subsidiaries ("Motorola"), a Delaware
corporation, with principal offices located at 0000 Xxxx Xxxxxxxxx Xxxx,
Xxxxxxxxxx, Xxxxxxxx 00000.
RECITALS
Whereas, AMD and Motorola have complementary strengths in the flash memory,
embedded logic, and microprocessor businesses and in supporting technologies and
manufacturing capabilities.
Whereas, the companies believe that entering into this Agreement to take
advantage of these complementary skills and needs will have value for both
companies and their respective customers by accelerating the development of
future technologies, increasing the likelihood of success, leveraging the
capital costs required, and increasing the quantity and quality of product
offerings available from each company.
Now, therefore, in consideration of the rights and obligations set forth in this
Agreement, the parties agree as follows:
AGREEMENT
1. Definitions.
1.1. "Acquired Party" means a party to this Agreement that
undergoes a Change of Control.
1.2. "Acquiring Party" means the person or entity that acquires
fifty percent (50%) or more of the outstanding voting
securities of a party to this Agreement, such that the party
being acquired undergoes a Change of Control.
1.3. "AMD Technology" means technology developed solely and/or
owned solely by AMD and all solely owned intellectual property
pertaining thereto.
Confidential treatment has been requested for portions of this exhibit. The copy
filed herewith omits the information subject to the confidentiality request.
Omissions are designated as *****. A complete version of this exhibit has been
filed separately with the Securities and Exchange Commission.
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1.4. "Change of Control" means the acquisition by a single legal
entity or natural person of fifty percent (50%) or more of the
outstanding securities of a party entitled to vote for the
board of directors of such party.
1.5. "Confidential Information" means any information disclosed by
a party (the "Disclosing Party") to the other party (the
"Receiving Party") pursuant to this Agreement in a context
which would cause a reasonable person to believe the
information is intended to be treated as confidential,
including but not limited to, documents expressly designated
as confidential, and information related to either party's
manufacturing processes, products, employees, facilities,
equipment, security systems, information systems, finances,
product plans, marketing plans, suppliers, or distributors;
provided, however that "Confidential Information" shall not
include information that: (i) is now available or becomes
available to the public without breach of this Agreement; (ii)
is explicitly approved for release by written authorization of
the Disclosing Party; (iii) is lawfully obtained from a third
party or parties without a duty of confidentiality; (iv) is
disclosed to a third party by the Disclosing Party without a
duty of confidentiality; (v) is known to the Receiving Party
prior to disclosure; or (vi) is at any time developed by the
Receiving Party independently of any such disclosure(s) from
the Disclosing Party.
1.6. "Conforming Deliverable" means a deliverable identified in a
Statement of Work that is agreed to by the parties to
substantially conform with the acceptance criteria for that
deliverable specified in the Statement of Work.
1.7. "Customer" means a company that, as a regular course of
business, purchases substantial quantities of semiconductor
products from a party to this Agreement.
1.8. ***** means a party to this Agreement providing information,
training and support to a ***** of that party regarding a
Logic Process Technology, Embedded Flash Technology, or other
semiconductor manufacturing process developed and/or licensed
under this Agreement, and *****.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.9. "Data Networking Products" means semiconductor products of AMD
designed specifically for data networking applications, that
are being shipped to customers as of the Effective Date, and
specifically excludes *****, and other AMD devices which
cannot be licensed due to agreements with third parties that
were signed as of the Effective Date.
1.10. "Derivative Process" means a semiconductor fabrication
process, other than a Logic Process Technology or Embedded
Flash Technology, which incorporates, modifies or uses steps
or elements developed for and utilized in such Technologies.
1.11. "Derivative Product" means a product that incorporates, in
whole or in substantial part, a pre-existing design, or a
modification of a pre-existing design, and which may add
functionality or performance to a pre-existing design.
1.12. "Embedded Flash Technology" means a technology resulting from
incorporating a high-density non-volatile flash array process
into a logic process while maintaining compatibility with the
general design rules of the logic process. Embedded Flash
Technology includes XXX0, XXX0, XXX0X xxx XXXXX as are defined
generally below and are defined specifically in documents for
each Embedded Flash Technology set forth in Appendix A.
Appendix A will be updated as necessary to include documents
to specifically describe each new Embedded Flash Technology as
it is developed.
(a) "CDR1" means embedded flash technology in which
*****.
(b) "CDR3 and future CDR processes" mean embedded flash
technologies in which *****.
(c) "HIP6F" means a high performance process for
manufacturing stand-alone and embedded flash devices
based on HIP6L.
(d) "SGEFT" means subsequent generation embedded flash
technologies developed by the parties pursuant to
this Agreement, that are successors to HIP6F.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.13. "Existing Product" means a product, production units of which
were first distributed to customers prior to or no more than
six (6) months after a Change of Control.
1.14. "Executive Board of Directors" means the ultimate governance
authority for the AMD-Motorola alliance.
1.15. "Foundry" means a company that manufactures semiconductor
products for a party other than a party to this Agreement, to
be purchased and resold by such party.
1.16. ***** means a party to this Agreement providing information,
training and support to a ***** of that party regarding a
Logic Process Technology, Embedded Flash Technology, or other
semiconductor manufacturing process developed and/or licensed
under this Agreement, and *****.
1.17. "Improvement" means a change or addition to a process which
improves or modifies it in some manner, including but not
limited to increasing manufacturing throughput, increasing the
performance, quality or yield of devices manufactured using
the process, decreasing the cost of utilizing the process, or
enabling the use of different materials but does not include
the manufacture of different types of devices utilizing the
process unless specifically agreed upon by the parties hereto;
provided, however, that a change or addition will constitute
an Improvement only if the process after such Improvement
still fits within the definition for that process (e.g.,
XXX0X, XXX0X or HIP7L) set forth in this Agreement.
1.18. "Intellectual Property" means all intellectual property
including but not limited to copyrights, trade secrets, and
know how but specifically excluding patents.
1.19. "IP Expenses" are fees, costs, or other charges related to
securing and maintaining intellectual property rights other
than IP Fees and Translation Expenses.
1.20. "IP Fees" are fees or other charges required to be paid to a
governmental agency, governmental office, or other
governmental entity to secure and maintain intellectual
property rights and include filing fees, registration fees,
issue fees, maintenance fees, annual taxes, and annuities.
1.21. "Joint Technology" means: (i) with respect to copyrightable
material
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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or work subject to protection under Chapter 9 of Title 17 of
the U.S. Code (Semiconductor Chip Protection Act), such
material or work qualifies as a "joint work" under 17 U.S.C.
Section 101; (ii) with respect to inventions subject to patent
protection, AMD and Motorola were "joint inventors" of such
invention under 35 U.S.C. Section 116; and (iii) with respect
to matter subject to trade secret protection, AMD and Motorola
both made substantial contributions to such matter. Where a
product or process consists of multiple parts, elements or
steps, each of which is capable of being subject to a claim of
ownership, each such part, element or step will be analyzed
separately to determine if it constitutes Joint Technology.
1.22. "Logic Process Technologies" means collectively XXX0X, XXX0X,
XXX0X, and SGLPT as are defined generally below and are
defined specifically in documents for each Logic Process
Technology set forth in Appendix B. Appendix B will be updated
as necessary to include documents to specifically describe
each new Logic Process Technology as it is developed.
(a) "HIP5L" means a high performance copper interconnect
logic process for manufacturing logic devices *****.
(b) "HIP6L" means a high performance copper interconnect
logic process for manufacturing logic devices *****.
(c) "HIP7L" means a high performance copper interconnect
logic process for manufacturing logic devices *****.
(d) "SGLPT" means subsequent generation logic process
technologies developed by the parties pursuant to
this Agreement, that are successors to HIP7L.
1.23. "Milestone" means an objectively verifiable achievement in a
Project, such as the completion of a certain stage of
development, the ability of a product or process under
development to pass certain tests, or the delivery of a
Conforming Deliverable.
1.24. "Motorola Technology" means technology developed solely and/or
owned solely by Motorola and all solely owned intellectual
property pertaining thereto.
1.25. "Non-Acquired Party" means a party to this Agreement when the
other party undergoes a Change of Control.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.26. "Personal Computing Environment" means a general purpose
personal computer or server including desktop, tower or
portable enclosures, intended primarily for use by a single
user where the user is allowed to install third party
application software and that is designed to operate with data
processing applications using personal computer operating
systems, such as Windows, Windows NT, Windows CE, and Mac OS,
or server operating systems such as AIX, UNIX, or OS/400, or
larger operating systems such as VM and MVS; provided,
however, that Personal Computing Environment does not include
a palmtop or PDA or a device smaller than a palmtop or PDA,
nor does it include communications, transportation, set top
box or consumer electronics applications.
1.27. "Power PC Microprocessors" means microprocessors designed for
the Personal Computing Environment and embedded applications
utilizing the industry desktop and embedded Power PC
architectures and instruction sets.
1.28. "Program Manager" means a manager who is an employee of a
party hereto and is responsible for business and operating
issues relating to a specific Project.
1.29. "Project" means a project agreed to by the Executive Board of
Directors and undertaken pursuant to this Agreement. The
parties have agreed to undertake the Projects described in
Sections 5 and 6 of this Agreement and will complete a
Statement of Work on each of those Projects ***** of the
Effective Date or as otherwise agreed to by the parties. The
parties also intend to commence other Projects under this
Agreement and will complete Statements of Work on those
Projects as provided in Section 3.1 herein.
1.30. "Statement of Work" means a development plan for a Project in
the form attached as Exhibit C, that includes a specification
of the product or process being developed, a description of
Milestones to be achieved (including, when appropriate,
deliverables and acceptance criteria), a development schedule
specifying when the Milestones are due and when the
development is supposed to be completed, a budget estimating
expenses to be incurred by each party in connection with the
Project, designation of a Program Management Team and those
items set forth in Sections 1.8 and 1.9 of Appendix D.
1.31. "Steering Committee" means the governance authority
responsible for the day-to-day operation of the AMD-Motorola
alliance.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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1.32. "Strategic Party" means a third party with whom a party to
this Agreement has a relationship to jointly develop and/or
design products or devices or portions of products or devices.
1.33. ***** means a party to this Agreement providing information,
training and support to a ***** of such party regarding a
Logic Process Technology, Embedded Flash Technology, or other
semiconductor manufacturing process developed and/or licensed
under this Agreement, and *****.
1.34. "Subsidiary" means a corporation, company, or other entity:
(a) more than forty percent (40%) of whose outstanding
shares or securities (representing the right to vote
for the election of directors or other managing
authority) are now or hereafter, owned or controlled,
directly or indirectly, by a party hereto, but such
corporation, company, or other entity shall be deemed
to be a Subsidiary only so long as such ownership or
control exists;
(b) which does not have outstanding shares or securities,
as may be the case in a partnership, joint venture or
unincorporated association, but more than forty
percent (40%) of whose ownership interest
representing the right to make the decisions for such
corporation, company, or other entity is now or
hereafter, owned or controlled, directly or
indirectly, by a party hereto, but such corporation,
company, or other entity shall be deemed to be a
Subsidiary only so long as such ownership or control
exists.
1.35. "Technical Coordinator" means a technical manager who is an
employee of a party and is responsible for managing the
day-to-day development effort of a Project as set forth in
Section 2.4.
1.36. "Test Technology Know How" means the methods and techniques
provided to Motorola by AMD used to produce highly reliable
flash products at cost effective test times, including: stress
modes designed into the product; the characterization
techniques used to determine the conditions used in the stress
modes and their implementation into the production test
routines; the method of characterizing and testing the program
distribution and erase distribution in the product and the
application of this data in the test program that achieves
program and
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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erase distributions resulting in very low failure rate program
erase cycling; and the test methodology to reduce the effects
of manufacturing variability, resulting in improvements in
manufacturability and overall productivity. Test Technology
Know How does not include any particular production test
routines themselves.
1.37. ***** means a party to this Agreement providing information,
training and support to a ***** (any party other than Motorola
or AMD and who does not qualify as a *****, ***** under this
Agreement) regarding a Logic Process Technology, Embedded
Flash Technology, or other semiconductor manufacturing process
developed and/or licensed under this Agreement, and *****.
1.38. "Translation Expenses" are fees, costs, or other charges
related to translating patent applications and copyright
registrations.
1.39. "X86 Microprocessors" means microprocessors designed for
personal computers and servers compatible with X86 versions of
Microsoft Corporation's Windows(R) operating systems, and
utilizing the industry standard, X86 architecture and
instruction sets.
2. Alliance Governance
2.1. Executive Board of Directors.
The alliance will be governed by an Executive Board of Directors
comprised of eight (8) members. Four (4) members will be appointed by
AMD with the approval of Motorola and the other four (4) members will
be appointed by Motorola with the approval of AMD.
2.1.1. The following matters will require approval by the
Executive Board of Directors, in addition to any
other matters required to be approved by the
Executive Board of Directors by other terms of this
Agreement.
2.1.1.1. Appointment of new members to the Executive Board of
Directors and the Steering Committee.
2.1.1.2. Approval of Projects proposed by the Steering
Committee.
2.1.1.3. Amendments to the Logic Process Technology or
Embedded Flash Technology roadmaps.
2.1.2. Meetings: Meetings of the Executive Board of
Directors will be held
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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at least monthly for the first year and thereafter as
mutually agreed. The Executive Board of Directors'
meetings may be conducted on either a face-to-face
basis or via video or telephone conference call,
whichever is mutually agreed to by the Parties at
least ten (10) business days in advance of the
meeting. Special meetings may be called by any two
members of the Executive Board of Directors, one (1)
from each party, upon at least (i) ten (10) business
days prior notice for a face-to-face meeting or (ii)
seventy-two (72) hours prior notice for a telephonic
or video conference meeting. The Executive Board of
Directors may also act without a meeting upon
unanimous written consent of all of the Board
members.
2.1.3. Quorum
2.1.3.1. A quorum of the Executive Board of Directors will
consist of at least six (6) members, including at
least three (3) members representing AMD and three
(3) members representing Motorola. No action may be
taken at any meeting of the Executive Board of
Directors in the absence of a quorum.
2.1.3.2. Notwithstanding Section 2.1.3.1 above, in the event
all of the members representing one of the Parties
fail to attend a meeting duly noticed and called, the
members in attendance at the next duly noticed and
called meeting, which may be a special meeting called
as provided in Section 2.1.2, may take action
regardless of whether a quorum is present.
2.2. The Steering Committee.
The day-to-day operation of the alliance will be directed by the
Steering Committee.
2.2.1. Members: The Steering Committee will be comprised of an equal
number of representatives from AMD and Motorola, not to be
less than three (3) from each party, appointed by their
respective companies within ten (10) days of the effective
date of this Agreement.
2.2.2. Responsibilities;
2.2.2.1. The Steering Committee will appoint a Program
Management Team for each Project.
2.2.2.2. The Program Management Team will submit an operating
plan for the Project to the Steering Committee for
approval. Once the Steering Committee has approved
the plan, the Steering Committee will submit a brief
discussion of the Project, including a summary of its
major technical milestones and operating budget, to
the Executive
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Board of Directors. The Executive Board of Directors
must approve the Project in accordance with Section
2.1 of this Agreement in the calendar quarter in
which cost sharing is to begin.
2.2.2.3. The Steering Committee will oversee the progress of
all Projects to ensure that the Projects remain
appropriately staffed and resourced; that technical
milestones are met and that the Projects are on time
and within budget.
2.2.2.4. The Steering Committee will be responsible for
approving any amendments to the Logic Process
Technology or Embedded Flash Technology roadmaps.
Such amendments must also be approved by the
Executive Board of Directors.
2.3. Program Management Team:
The Program Management Team will consist of one (1) Program Manager and
one (1) Technical Coordinator, or one (1) Program Manager and one (1)
Technical Coordinator from each party, as appropriate and agreed to by
the parties. Each Project undertaken pursuant to this Agreement will
have a Program Management Team assigned to it by the Steering
Committee. The Program Management Team will be responsible for creating
an operating plan for the Project for managing the day-to-day
activities of the Project and for reporting on the progress of the
Project to the Steering Committee. The Program Manager will be
primarily responsible for all business and operating issues relating to
the Project, such as ensuring that the Project is appropriately staffed
and resourced and that it is on time and within budget. The Technical
Coordinator will be primarily responsible for all technical aspects of
the Project, including ensuring that technical milestones are achieved.
3. Development Projects.
3.1. Statement of Work. Prior to commencement of a Project or as
soon thereafter as possible, the parties will develop a
Statement of Work.
3.2. Development Costs.
AMD and Motorola will accrue shared development costs for
mutually agreed upon facilities, tasks and technologies, as
set forth more fully in Appendix D.
3.3. Audit. Each party will maintain appropriate books and records
necessary to verify its Development Costs. Each party may upon
reasonable notice and at its expense during normal business
hours and not more than once each year have a Big 6 certified
public accounting
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firm review the other party's books and records to verify the
information contained in the royalty statements. In the event
an audit reveals that a party over-reported Development Costs
and paid less or received more than it should, such party will
promptly pay the other party the amount necessary to correct
the error. If the audit reveals that a party underreported
Development Costs and paid more or received less than it
should, then such party will be entitled to, at such party's
election, either a prompt refund of the amount due or a credit
towards future Development Cost equalization payments. If the
amount of the error is more than 10% of the amount of the
Development Costs for the period being audited in favor of the
auditing party: (i) the audited party will pay the cost of the
audit; (ii) the auditing party will be permitted to conduct an
audit each quarter for the next two years, and (iii) the
audited party will institute appropriate corrective mechanisms
in its reporting process to prevent further errors.
3.4. Schedule. The achievement of Milestones will be the joint
responsibility of the parties. Each party will provide
appropriate resources, as reflected in the Statement of Work,
to complete the Project on schedule. The Program Management
Team will be primarily responsible to ensure that the Project
proceeds on schedule and will notify the Steering Committee in
the event of a significant delay in the development. The
parties will take appropriate steps to address such delays,
which may include but are not necessarily limited to:
increasing the resources on the Project, obtaining assistance
from third parties, modifying the scope of the Project, or
modifying the schedule. A Project may only be cancelled upon
joint agreement by the Executive Board of Directors.
3.5. Deliverables. For each Milestone for which a deliverable is
due, the parties will make reasonable efforts to ensure that
it is a Conforming Deliverable. The deliverable will be
promptly tested using the acceptance criteria identified in
the Statement of Work to determine whether it is a Conforming
Deliverable and the Technical Coordinator will send a notice
to each party describing any non-conformance. Any
non-conformities will be corrected as soon as possible and the
deliverable will be further tested. The Milestone will be
deemed completed only upon deliverance of a Conforming
Deliverable.
3.6. Progress Reports. For each Project, the Program Management
Team will generate a monthly progress report. Each report
shall describe the status of the Project, including but not
limited to:
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(a) Assessment of current Project schedule outlook in
comparison to Milestones;
(b) Short description of technical problems, issues or
roadblocks encountered and identification of
technical decisions that need to be made;
(c) Recommendations for resolving outstanding issues and
making pending decisions; and
(d) Proposed recovery method for addressing any delays in
the schedule.
(e) Status of the budget for the current project.
4. Ownership.
4.1. AMD Technology. AMD is the sole and exclusive owner of the AMD
Technology. Any Derivative Process developed solely by AMD
will be AMD Technology, subject to Motorola's ownership of any
Logic Process Technology, Embedded Flash Technology, or other
Motorola Technology from which such Derivative Process is
derived.
4.2. Motorola Technology. Motorola is the sole and exclusive owner
of the Motorola Technology. Any Derivative Process developed
solely by Motorola will be Motorola Technology, subject to
AMD's ownership of any Logic Process Technology, Embedded
Flash Technology, or other AMD Technology from which such
Derivative Process is derived.
4.3. Joint Technology. AMD and Motorola each have an undivided
ownership interest in Joint Technology and any intellectual
property obtained thereon. The parties shall cooperate in
executing and reviewing any documents and taking any actions
necessary to obtain and maintain intellectual property
protection of the Joint Technology. In the case of each
discovery, improvement, invention, program or code that is
Joint Technology, the parties shall determine whether or not
to file patent applications or register copyrights in the
United States and other countries. IP Expenses for preparing
each joint application or registration shall be borne by the
party that prepares and files the application or registration.
Prior to filing, the non-filing party will be notified and
requested to pay one-half (1/2) of all IP Fees and Translation
Expenses. In the event that the non-filing party does not
notify the requesting party in sixty (60) days in writing that
it will pay one-half (1/2) of such IP Fees and Translation
Expenses or if one party desires to obtain intellectual
property protection for specific Joint Technology (such as
filing for patent protection in a certain country)
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and the other party does not wish to obtain such protection
for such Joint Technology, then the party seeking such
protection will control and pay the cost of such prosecution,
but the filing will still reflect both parties as joint
owners. In the event of an enforcement action for Joint
Technology depending on intellectual property protection the
procurement of which was paid for by only one party, any
recovery will first go to reimburse the party for the cost of
obtaining such protection. Whenever the parties agree that an
infringement action should be brought based on Joint
Technology, the parties will jointly direct and share in the
cost of bringing such action. In the event one party wishes to
pursue an infringement action, and the other party does not,
the party bearing the cost will control the action and will be
allowed to retain any sums recovered in bringing such action.
The other party may, at its option, cooperate in appearing as
a plaintiff in such action and in providing information and
testimony in support of such action. In connection with such
support and testimony, the party bearing the costs of the
action will pay out-of-pocket expenses of the other party
(e.g., travel expenses), but will not be required to
compensate the other party for the time of its employees and
other incidental costs (e.g., photo-copying charges).
4.4. No Implied Licenses. This Agreement grants no licenses to any
intellectual property except as expressly provided herein. It
is the intent of the parties that only the Motorola Technology
and AMD Technology provided for or developed during Projects
is to be expressly licensed.
5. Cooperation on Logic Process Technology.
5.1. Statement of Work. The parties will undertake Projects to
complete and develop Logic Process Technologies. The parties
intend to complete one or more Statement(s) of Work for HIP5L
and HIP6L ***** days of the Effective Date or as otherwise
agreed. Such Statement(s) of Work will be consistent with the
XXX0X, XXX0X Program Plan-Rev.2.0, attached hereto as Exhibit
E.
5.2. Although particular express rights are provided to each of the
parties herein, it is the intent of parties to ***** Logic
Process Technologies and Embedded Flash Technologies.
Accordingly, the parties intend to cooperate with each other
in situations necessary to *****.
5.3. In exercising the rights provided hereunder, AMD will *****
the Logic Process Technology to produce Power PC
Microprocessors or Motorola
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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proprietary processor architectures and Motorola will *****
the Logic Process Technology to produce X86 Microprocessors or
AMD proprietary processor architectures.
5.4. HIP5L Licenses.
(a) Any Improvements to HIP5L developed solely by AMD
will be deemed AMD Technology, subject to Motorola's
rights in HIP5L. Any Improvements to HIP5L developed
solely by Motorola will be deemed Motorola
Technology, subject to AMD's rights in AMD
Improvements to HIP5L.
(b) Motorola hereby grants to AMD under Motorola
Intellectual Property, a non-exclusive,
non-transferable, worldwide, royalty-free (except as
provided in Sections 6.5 and 6.6) license, without
the right to sublicense, to:
(i) practice the methods and processes of HIP5L
and Motorola Improvements to HIP5L,
(ii) make, use, import and sell devices
manufactured using HIP5L and Motorola
Improvements to HIP5L, and
(iii) make Improvements to HIP5L and Derivative
Processes using HIP5L technology.
(c) AMD hereby grants to Motorola under AMD Intellectual
Property, a non-exclusive, non-transferable,
worldwide, royalty-free license to:
(i) practice the methods and processes of HIP5L
and AMD Improvements to HIP5L,
(ii) make, have made, use, import and sell
devices manufactured using HIP5L and AMD
Improvements to HIP5L,
(iii) make further Improvements to HIP5L and AMD
Improvements to HIP5L and Derivative
Processes using HIP5L and AMD Improvements
to HIP5L, and
(iv) undertake ***** with respect to HIP5L and
sublicense the rights granted in Section
5.4(c)(i), (ii) and (iii) only as part of
such *****,
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 14
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(v) undertake ***** with respect to HIP5L and
sublicense the rights granted in Section
5.4(c)(i), (ii), and (iii) only as part of
such *****,
(vi) undertake ***** with respect to HIP5L and
sublicense the rights granted in Section
5.4(c)(i), (ii), and (iii) only as part of
such *****,
(vii) undertake ***** with respect to HIP5L and
sublicense the rights granted in Section
5.4(c)(i), (ii), and (iii) only as part of
such *****.
(d) In the event that Motorola exercises its rights
granted by AMD in Section 5.4(c) (iv)-(vii), AMD will
negotiate in good faith with such ***** for
a license under AMD patents essential to utilize
HIP5L and Improvements thereto on reasonable terms,
or, at AMD's option, will represent and warrant to
Motorola that it will not assert it's patents
essential to utilize HIP5L against the *****.
(e) AMD will assign engineers to work in agreed-upon
wafer fabrication facilities of Motorola in order to
gain an understanding of HIP5L. AMD will, *****.
Motorola will train and support the AMD engineers
with respect to HIP5L including but not limited to,
disclosing all necessary information and know-how,
and providing all necessary documentation and
technical support.
5.5. HIP6L Licenses.
(a) The parties intend to create a Statement of Work on
HIP6L and to collaborate on the remaining development
of that technology. It is anticipated that each party
will make contributions to the development of that
technology. Any contributions or Improvements to
HIP6L developed solely by AMD will be deemed AMD
Technology, subject to Motorola's rights in HIP6L.
Any contributions or Improvements to HIP6L developed
solely by Motorola will be deemed Motorola
Technology, subject to AMD's rights in HIP6L.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 15
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(b) Motorola hereby grants to AMD under Motorola
Intellectual Property a non-exclusive,
non-transferable, worldwide, royalty-free (except as
provided in Sections 6.5 and 6.6) license to:
(i) practice the methods and processes of HIP6L
and Motorola Improvements to HIP6L,
(ii) make, have made, use, import and sell
devices manufactured using HIP6L and
Motorola Improvements to HIP6L,
(iii) make Improvements to HIP6L and Derivative
Processes using HIP6L technology,
(iv) only with Motorola approval, such approval
not to be unreasonably withheld, undertake
***** within ***** after the first
commercial shipment of a product
manufactured using HIP6L and without
approval, undertake ***** HIP6L *****
thereafter with respect to HIP6L and
sublicense the rights granted in Section 5.5
(b)(i), (ii) and (iii) only as part of such
*****,
(v) only with Motorola approval, such approval
not to be unreasonably withheld, undertake
***** with respect to HIP6L and sublicense
the rights granted in Section 5.5 (b)(i),
(ii) and (iii) only as part of such *****,
(vi) only with Motorola approval, such approval
not to be unreasonably withheld, undertake
***** with respect to HIP6L and sublicense
the rights granted in Section 5.5 (b)(i),
(ii) and (iii) only as a part of such *****,
and
(vii) only with Motorola approval, such approval
not to be unreasonably withheld, undertake
***** within ***** after the first
commercial shipment of a product
manufactured using HIP6L and without
approval, undertake ***** thereafter with
respect to HIP6L and sublicense the rights
granted in Section 5.5 (b)(i), (ii) and
(iii) only as a part of such *****.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 16
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(c) AMD hereby grants to Motorola under AMD Intellectual
Property, a non-exclusive, non-transferable,
worldwide, royalty-free license to:
(i) practice the methods and processes of HIP6L
and AMD Improvements to HIP6L,
(ii) make, have made, use, import and sell
devices manufactured using HIP6L and AMD
Improvements to HIP6L,
(iii) make Improvements to HIP6L and Derivative
Processes using HIP6L technology,
(iv) undertake ***** with respect to HIP6L and
sublicense the rights granted in Section 5.5
(c)(i), (ii) and (iii) only as part of such
*****,
(v) undertake ***** with respect to HIP6L and
sublicense the rights granted in Section 5.5
(c)(i), (ii) and (iii) only as part of such
*****. Notwithstanding, Motorola agrees to
license *****, with whom Motorola is having
products made pursuant to Section
5.5(c)(ii), to manufacture and sell only
engineering and prototype sample quantities
of products manufactured using HIP6L to
parties other than Motorola, AMD, *****
within ***** after the first commercial
shipment of a product manufactured using
HIP6L. Upon the approval of AMD, such
approval not to be unreasonably withheld,
Motorola may undertake further ***** with
respect to HIP6L within the ***** period.
Motorola may undertake ***** period,
(vi) upon prior written approval of AMD, such
approval not to be unreasonably withheld,
undertake ***** within ***** after the first
commercial shipment of a product
manufactured using HIP6L and without written
approval, undertake ***** HIP6L *****
thereafter with respect to HIP6L and
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 17
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
sublicense the rights granted in Section 5.5
(c)(i), (ii) and (iii) only as a part of
such *****, and
(vii) undertake ***** within ***** after the first
commercial shipment of a product
manufactured using HIP6L and ***** HIP6L
***** thereafter and sublicense the rights
granted in Section 5.5 (c)(i), (ii) and
(iii) only as a part of such *****. Upon the
approval of AMD, such approval not to be
unreasonably withheld, Motorola may
undertake further ***** with respect to
HIP6L within the ***** period.
(d) In the event that AMD exercises its rights granted by
Motorola in Section 5.5(b) (iv)-(vii) Motorola will
negotiate in good faith with such ***** for a license
under Motorola patents essential to utilize HIP6L and
Improvements thereto on reasonable terms, or, at
Motorola's option, will represent and warrant to AMD
that it will not assert it's patents essential to
utilize HIP6L against the *****. In the event that
Motorola enters into a patent license with, or
covenants not to assert its patents against, *****
who received a ***** under HIP6L as described in this
Section, AMD will ***** such *****, *****.
(e) In the event that Motorola exercises its rights
granted by AMD in Section 5.5(c) (iv)-(vii) AMD will
negotiate in good faith with such ***** for a license
under AMD patents essential to utilize HIP6L and
Improvements thereto on reasonable terms, or, at
AMD's option, will represent and warrant to Motorola
that it will not assert it's patents essential to
utilize HIP6L against the *****. In the event that
AMD enters into a patent license with, or covenants
not to assert its patents against, a ***** who
received a ***** under HIP6L as described in this
Section, Motorola will *****.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 18
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(f) AMD will assign engineers to work in Motorola's
Advanced Process Research & Development Lab ("APRDL")
facility and other facilities as set forth in the
HIP6L Statement of Work.
(g) Motorola may assign engineers to AMD facilities in
order to participate in the development of HIP6L.
(h) AMD will install a production process for HIP6L into
AMD's Dresden Fab30 facility. Motorola will train and
support the AMD engineers with respect to the design
and manufacturing processes related to HIP6L as set
forth in Appendix E.
5.6. HIP7L Licenses.
(a) The parties intend to create Statements of Work on
HIP7L and SGLPT and to collaborate on the development
of those technologies. It is anticipated that each
party will make substantial contributions to the
development of those technologies. Any contributions
or Improvements to HIP7L and SGLPT developed solely
by AMD will be deemed AMD Technology, subject to
Motorola's rights in HIP7L and SGLPT. Any
contributions or Improvements to HIP7L and SGLPT
developed solely by Motorola will be deemed Motorola
Technology, subject to AMD's rights in HIP7L and
SGLPT.
(b) Motorola hereby grants to AMD under Motorola
Intellectual Property, a non-exclusive,
non-transferable, worldwide, royalty-free (except as
provided in Sections 6.5 and 6.6) license to:
(i) practice the methods and processes of HIP7L
and SGLPT and Motorola Improvements to HIP7L
and SGLPT,
(ii) make, have made, use, import and sell
devices manufactured using HIP7L and SGLPT
and Motorola Improvements to HIP7L and
SGLPT,
(iii) make Improvements to HIP7L and SGLPT and
Derivative Processes using HIP7L and SGLPT
technology,
(iv) undertake ***** with respect to HIP7L and
SGLPT and sublicense the rights granted in
Section 5.6 (b)(i), (ii) and (iii) only as
part of such *****,
(v) undertake ***** with respect to HIP7L and
SGLPT and sublicense the rights granted in
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 19
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
Section 5.6(b)(i), (ii) and (iii) only as
part of such *****. Notwithstanding, AMD
agrees to license *****, with whom AMD is
having products made pursuant to Section
5.6(b)(ii), to manufacture and sell only
engineering and prototype sample quantities
of products manufactured using a particular
HIP7L or SGLPT to parties other than
Motorola, AMD, ***** within ***** after the
first commercial shipment of a product
manufactured using the particular HIP7L or
SGLPT. Upon the approval of Motorola, such
approval not to be unreasonably withheld,
AMD may undertake further ***** with respect
to the particular HIP7L or SGLPT within the
***** period. AMD may undertake ***** after
the ***** period,
(vi) ***** after the first commercial shipment of
a product utilizing a particular HIP7L or
SGLPT, undertake ***** with respect to the
particular HIP7L or SGLPT and sublicense the
rights granted in Section 5.6 (b)(i), (ii)
and (iii) only as a part of such *****, and
(vii) undertake one HIP7L or SGLPT ***** within
***** after the first commercial shipment of
a product manufactured using a particular
HIP7L or SGLPT and ***** HIP7L or SGLPT
***** thereafter and sublicense the rights
granted in Section 5.6 (b)(i), (ii) and
(iii) only as a part of such *****. Upon
mutual agreement of the parties, such
approval not to be unreasonably withheld,
AMD may undertake further ***** with respect
to HIP7L within the ***** period.
(c) AMD hereby grants to Motorola under AMD Intellectual
Property, a non-exclusive, non-transferable,
worldwide, royalty-free license to:
(i) practice the methods and processes of HIP7L
and SGLPT and AMD Improvements to HIP7L and
SGLPT,
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 20
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(ii) make, have made, use, import and sell
devices manufactured using HIP7L and SGLPT
and AMD Improvements to HIP7L and SGLPT,
(iii) make Improvements to HIP7L and SGLPT and
Derivative Processes using HIP7L and SGLPT
technology,
(iv) undertake ***** with respect to HIP7L and
SGLPT and sublicense the rights granted in
Section 5.6 (c)(i), (ii) and (iii) only as
part of such *****,
(v) undertake ***** with respect to HIP7L and
SGLPT and sublicense the rights granted in
Section 5.6 (c)(i), (ii) and (iii) only as
part of such *****. Notwithstanding,
Motorola agrees to license *****, with whom
Motorola is having products made pursuant to
Section 5.6(c)(ii), to manufacture and sell
only engineering and prototype sample
quantities of products manufactured using a
particular HIP7L or SGLPT to parties other
than Motorola, AMD, ***** within ***** after
the first commercial shipment of a product
manufactured using the particular HIP7L or
SGLPT. Upon the approval of AMD, such
approval not to be unreasonably withheld,
Motorola may undertake further ***** with
respect to the particular HIP7L or SGLPT
within the ***** period. Motorola may
undertake ***** after the ***** period,
(vi) upon prior written approval of AMD, such
approval not to be unreasonably withheld,
undertake ***** within ***** of the first
commercial shipment of a product
manufactured using a particular HIP7L or
SGLPT and without written approval,
undertake ***** HIP7L or SGLPT *****
thereafter with respect to a particular
HIP7L or SGLPT and sublicense the rights
granted in Section 5.6 (c)(i), (ii) and
(iii) only as a part of such *****, and
(vii) undertake one HIP7L or SGLPT ***** within
***** after the first commercial shipment of
a product manufactured using a particular
HIP7L or SGLPT
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 21
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
and ***** HIP7L or SGLPT ***** thereafter
and sublicense the rights granted in Section
5.6 (c)(i), (ii) and (iii) only as a part of
such *****. Upon mutual agreement of
the parties, such approval not to be
unreasonably withheld, Motorola may
undertake further ***** with respect to
HIP7L within the ***** period.
(d) In the event that AMD exercises its rights granted by
Motorola in Section 5.6(b)(iv)-(vii), Motorola will
negotiate in good faith with such ***** for a license
under Motorola patents essential to utilize HIP7L and
SGLPT and Improvements thereto on reasonable terms,
or, at Motorola's option, will represent and warrant
to AMD that it will not assert it's patents essential
to utilize HIP7L against the *****. In the event that
Motorola enters into a patent license with, or
covenants not to assert its patents against, a *****
who received a ***** under a particular HIP7L or
SGLPT as described in this Section, AMD will *****
such ***** for the particular HIP7L or SGPLT.
(e) In the event that Motorola exercises its rights
granted by AMD in Section 5.6(c)(iv)-(vii), AMD will
negotiate in good faith with such ***** for a license
under AMD patents essential to utilize HIP7L and
SGLPT and Improvements thereto on reasonable terms,
or, at AMD's option, will represent and warrant to
Motorola that it will not assert it's patents
essential to utilize HIP7L and SGLPT against the
*****. In the event that AMD enters into a patent
license with, or covenants not to assert its patents
against a ***** who received a ***** under a
particular HIP7L or SGLPT as described in this
Section, Motorola will *****
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 22
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
such ***** for the particular HIP7L or SGLPT.
(f) AMD may assign engineers to Motorola facilities in
order to participate in the development of HIP7L and
SGLPT, as defined in the HIP7L and SGLPT Statements
of Work. Motorola may assign engineers to AMD
facilities in order to participate in the development
of HIP7L and SGLPT.
(g) In the event that either AMD or Motorola initially
contacts, or is initially contacted by, a ***** for a
***** pursuant to Sections 5.6(b)(vi) or 5.6(c)(vi)
respectively, that party will provide notice of the
contact to the other party and have primary
responsibility for concluding negotiations with the
***** for the *****. In the event that the
negotiating party does not enter into an agreement
for a ***** with a particular ***** in a reasonable
period of time or negotiations are ceased by the
negotiating party or the *****, the non-negotiating
party will then have the right to continue the
negotiation with the *****. Notwithstanding, Motorola
and AMD intend to cooperate with respect to licensing
***** in order to obtain the maximum benefit for both
parties.
5.7. Foundry Support.
(a) In the event that Motorola has the HIP5L or HIP6L
process in production earlier than AMD, providing AMD
is in good faith attempting to qualify such process
in its Dresden Fab 30 facility, at AMD's request,
Motorola will manufacture utilizing HIP5L or HIP6L,
up to *****, or such greater amount as the parties
may agree to, until AMD's Dresden Fab 30 facility is
prepared to provide production volume using those
processes. The parties will negotiate and execute a
separate foundry services agreement which shall
include commercially reasonable terms and conditions,
including pricing, in connection with the sale of
such wafers.
(b) AMD represents and warrants that it has "have made"
rights from any necessary third parties for products
to be manufactured under Section 5.7(a) to enable
Motorola to undertake such manufacturing. In the
event a claim is asserted against Motorola relating
to AMD's "have made" rights, AMD will indemnify and
defend Motorola from and against any such
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 23
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
claim, provided that Motorola promptly informs AMD of
any such claim, permits AMD with counsel of its
choosing to control the defense of the action, and
provides reasonable cooperation and assistance in
connection with the action. ***** Section 5.7(a), AMD
will not be liable for any damages resulting from any
manufacturing by Motorola occurring after such
notice. In the event of a *******, Motorola will
have no obligation to reserve any further wafer
manufacturing capacity for AMD under this Section and
AMD shall pay Motorola reasonable cancellation
charges for any reserved capacity.
6. Cooperation on Embedded Flash Technology.
6.1. CDR1 Support. AMD will provide assistance and support to
Motorola to assist Motorola in its efforts to meet the current
CDR1 qualification schedule. Such assistance and support will
consist of: (a) providing information and support in the areas
of silicon processing, test flow, and design to support test
flow; (b) assigning engineers as appropriate to work at
Motorola's facilities as necessary to accomplish the
foregoing; and (c) allowing Motorola engineers to perform
appropriate tasks at AMD's facilities as necessary to
accomplish the foregoing.
6.2. AMD CDR1 Flash Technology License.
(a) AMD hereby grants to Motorola under AMD Intellectual
Property, a non-exclusive, non-transferable license
to any design, process, and test technology disclosed
and provided to Motorola in connection with the
support provided pursuant to Section 6.1 or that is
incorporated into CDR1, to:
(i) practice the methods and processes of CDR1
and AMD Improvements to CDR1,
(ii) make, have made, use, import, and sell
devices manufactured using CDR1 and AMD
Improvements to CDR1,
(iii) make Improvements to CDR1 and Derivative
Processes using CDR1 technology,
(iv) undertake ***** with respect to CDR1 and
sublicense the rights granted in Section
6.2(a)(i)-(iii) only as part of such *****.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 24
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(v) to undertake ***** with respect to CDR1 and
sublicense the rights granted in Section
6.2(a)(i)-(iii) only as part of such *****.
(vi) to undertake ***** with respect to CDR1 and
sublicense the rights granted in Section
6.2(a)(i)-(iii) only as part of such *****.
(vii) to undertake ***** with respect to CDR1 and
sublicense the rights granted in Section
6.2(a)(i)-(iii) only as part of such *****.
(viii) Notwithstanding the licenses set forth in
this Section, Motorola may transfer AMD's
Test Technology Know How only to *****
pursuant to Sections 6.2(b)(iv) and
6.2(b)(vii), respectively.
(b) Any AMD Improvements to the AMD flash technology will
be owned exclusively by AMD, and are hereby licensed
to Motorola on the same terms as the AMD flash
technology.
(c) In the event that Motorola exercises its rights
granted by AMD in Section 6.2(a)(iv)-(vii), AMD will
negotiate in good faith with such ***** for a license
under AMD patents essential to utilize CDR1 and
Improvements thereto on reasonable terms, or, at
AMD's option, will represent and warrant to Motorola
that it will not assert it's patents essential to
utilize CDR1 against the *****.
6.3. CDR3 Project. The parties will undertake a CDR3 Project and
intend to complete a Statement of Work for such Project within
***** of the Effective Date or as otherwise agreed by the
parties. Such Statement of Work will be consistent with the
CDR3 Program Plan-Rev 3.0, attached hereto as Exhibit F.
6.4. CDR3 License.
(a) Motorola hereby grants to AMD under Motorola
Intellectual Property, a non-exclusive,
non-transferable, worldwide, royalty-free (except as
provided in Sections 6.5 and 6.6) license to:
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 25
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(i) practice the methods and processes of CDR3
and Motorola Improvements to CDR3,
(ii) make, have made, use, import and sell
embedded flash devices manufactured using
CDR3 and Motorola Improvements to CDR3 but
only for the Personal Computing Environment,
(iii) make, have made, use, import and sell
embedded flash devices manufactured using
CDR3 and Motorola Improvements to CDR3, but
only ***** for applications other than the
Personal Computing Environment,
(b) AMD hereby grants to Motorola under AMD Intellectual
Property, a non-exclusive, non-transferable,
worldwide, royalty-free license to:
(i) practice the methods and processes of CDR3
and future CDR processes and AMD
Improvements to CDR3 and future CDR
processes,
(ii) make, have made, use, import and sell
devices manufactured using CDR3 and future
CDR processes and AMD Improvements to CDR3
and future CDR processes,
(iii) make Improvements to CDR3 and future CDR
processes and Derivative Processes using
CDR3 technology,
(iv) undertake ***** with respect to CDR3 and
future CDR processes and sublicense the
rights granted in Section 6.4 (b)(i), (ii)
and (iii) only as part of such *****,
(v) ***** after the first commercial shipment of
a product manufactured by a particular CDR3
or future CDR process, undertake ***** with
respect to CDR3 and future CDR processes and
sublicense the rights granted in Section 6.4
(b)(i), (ii) and (iii) only as part of such
*****,
(vi) ***** after the first commercial shipment of
a product manufactured by a particular CDR3
or future CDR process, undertake ***** with
respect to CDR3 and future CDR processes and
sublicense the rights
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 26
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
granted in Section 6.4 (b)(i), (ii) and
(iii) only as a part of such *****,
(vii) undertake one CDR3 or future CDR process
***** within ***** after the first
commercial shipment of a product
manufactured using a particular CDR3 or
future CDR process and ***** CDR3 or future
CDR process ***** thereafter and sublicense
the rights granted in Section 6.4 (b)(i),
(ii) and (iii) only as a part of such *****.
Upon mutual agreement of the parties, such
approval not to be unreasonably withheld,
Motorola may undertake further ***** with
respect to CDR3 or future CDR processes
within the ***** period, and
(viii) Notwithstanding the licenses set forth in
this Section, Motorola may transfer AMD's
Test Technology Know How only to *****
pursuant to Sections 6.4(b)(iv) and
6.4(b)(vii), respectively.
(c) In the event that Motorola exercises its rights
granted by AMD in Section 6.4(b)(iv)-(vii), AMD will
negotiate in good faith with such ***** for a license
under AMD patents essential to utilize CDR3 and
future CDR processes and Improvements thereto on
reasonable terms, or, at AMD's option, will represent
and warrant to Motorola that it will not assert it's
patents essential to utilize CDR3 or future CDR
processes against the *****.
(d) In connection with the license grant in Section
6.4(b), AMD will indemnify and defend Motorola from
and against any claim ***** that any technology
provided by AMD with regard to the CDR3 project
and/or the license granted to Motorola under Section
6.4(b) violates *****, provided that Motorola
promptly informs AMD of any such claim, permits AMD
with counsel of its choosing to control the defense
of the action, and provides reasonable cooperation
and assistance in connection with the action. If AMD
is not able to procure the rights necessary for
Motorola to maintain its license on reasonable terms,
or to modify AMD Flash Technology after reasonable
efforts so that it is no longer infringing without
substantially impairing its function or performance,
then AMD may send a notice of such inability to
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 27
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
Motorola and AMD will not be liable for any damages
resulting from infringing activity occurring after
such notice. In the event that AMD *****. The
indemnity provided in this Section will not apply in
the event the infringement claim is attributable to
the combination of CDR3 or AMD Improvements thereto
in combination with other technology or processes
implemented solely by Motorola or others
Notwithstanding, upon the request of AMD, Motorola
will be required to assist AMD in developing and
implementing a mutually agreeable substitute for any
AMD Flash Technology that is infringing. *****
6.5. CDR3 Schedule. The parties' goal is to complete CDR3 product
qualification by *****. The parties current schedule is to
complete CDR3 flash module tape out by *****. In the event the
parties are unable to deliver a complete flash module by
***** in substantial compliance with the acceptance
criteria specified in the Statement of Work for the CDR3
Project, then (i) further work on the CRD3 Project will cease,
unless the parties agree to continue the Project; *****.
6.6. Royalties. This Section 6.6 applies only in the event the
parties are unable to deliver a complete flash module by
*****, in substantial compliance with the program plan
set forth in Exhibit F.
(a) Definitions. These definitions apply only to this
Section 6.6.
(i) "Net Revenue" means the gross receipts
received by AMD from the sale of Royalty
Bearing Devices less any taxes, freight
charges, insurance, discounts, credits,
commissions paid to third parties, and
returns.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Page 28
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(ii) "Royalty Bearing Device" means a
semiconductor product manufactured using a
Logic Process Technology or other logic
process utilizing copper metallization and
sold by AMD as a production unit ***** of
the first commercial shipment of any product
using that specific process technology
(*****). Royalty Bearing Device will not
include any samples, prototypes or other
devices distributed for marketing, testing
or promotional purposes.
(b) Royalty Payments and Statements. Within thirty (30)
days after the close of each quarter during which Net
Revenue was received by AMD, AMD will pay to Motorola
royalty payments based on the ***** reflected in the
table set forth below.
*****
*****
*****
*****
*****
*****
Each payment will be accompanied by a statement
reflecting the Net Revenue received during the
quarter from Royalty Bearing Devices manufactured
under each Logic Process Technology or Derivative
Process of a Logic Process Technology.
(c) Audit. AMD will maintain appropriate books and
records necessary to verify the information contained
in the royalty statements. Motorola may upon
reasonable notice and at its expense during normal
business hours and not more than once each year have
a Big 6 certified public accounting firm review AMD's
books and records to verify the information contained
in the royalty statements. If the audit reveals a
deficiency in any royalty payment, AMD will promptly
pay the amount of that deficiency. If the audit
reveals that payments were made in excess of the
amounts due, AMD will be entitled to, at AMD's
election, either a prompt refund of the excess
payment or a credit towards future royalty
obligations. If the audit reveals a deficiency in
excess of ***** of the amount of the
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
royalty payments being audited, AMD will pay the
reasonable costs of such audit.
6.7. HIP6F.
(a) The parties intend to create a Statement of Work on
HIP6F and SGEFT and to collaborate on the development
of those technologies. It is anticipated that each
party will make substantial contributions to the
development of those technologies. Any contributions
or Improvements to HIP6F and SGEFT developed solely
by AMD will be deemed AMD Technology, subject to
Motorola's rights in HIP6F and SGEFT. Any
contributions or Improvements to HIP6F and SGEFT
developed solely by Motorola will be deemed Motorola
Technology, subject to AMD's rights in HIP6F and
SGEFT.
(b) Motorola hereby grants to AMD under Motorola
Intellectual Property, a non-exclusive,
non-transferable, worldwide, royalty-free license to:
(i) practice the methods and processes of HIP6F
and SGEFT and Motorola Improvements to HIP6F
and SGEFT,
(ii) make, have made, use, import and sell
devices manufactured using HIP6F and SGEFT
and Motorola Improvements to HIP6F and
SGEFT,
(iii) make Improvements to HIP6F and SGEFT and
Derivative Processes using HIP6F and SGEFT
technology,
(iv) undertake ***** with respect to HIP6F and
SGEFT and sublicense the rights granted in
Section 6.7 (b)(i), (ii) and (iii) only as
part of such *****, and
(v) undertake ***** with respect to HIP6F and
SGEFT and sublicense the rights granted in
Section 6.7 (b)(i), (ii) and (iii) only as
part of such *****. Notwithstanding, AMD
agrees to license *****, with whom AMD is
having products made pursuant to Section
6.7(b)(ii), to manufacture and sell only
engineering and prototype sample quantities
of products manufactured using a particular
HIP6F or SGEFT to parties other than
Motorola, AMD, *****
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
within ***** after the first commercial
shipment of a product manufactured using the
particular HIP6F or SGEFT. Upon the approval
of Motorola, such approval not to be
unreasonably withheld, AMD may undertake
further ***** with respect to the particular
HIP6F or SGEFT within the ***** period. AMD
may undertake ***** after the ***** period.
(vi) ***** after the first commercial shipment of
a product utilizing a particular HIP6F or
SGEFT, undertake ***** with respect to the
particular HIP6F or SGEFT and sublicense the
rights granted in Section 6.7 (b)(i), (ii)
and (iii) only as a part of such *****.
(vii) undertake one ***** within ***** after the
first commercial shipment of a product
manufactured using a particular HIP6F and
SGEFT and unlimited HIP6F or SGEFT *****
thereafter and sublicense the rights granted
in Section 6.7 (b)(i), (ii) and (iii) only
as a part of such *****. Upon mutual
agreement of the parties, such approval not
to be unreasonably withheld, AMD may
undertake further ***** with respect to
HIP6F and SGEFT within the ***** period.
(c) AMD hereby grants to Motorola under AMD Intellectual
Property, a non-exclusive, non-transferable,
worldwide, royalty-free license to:
(i) practice the methods and processes of HIP6F
and SGEFT and AMD Improvements to HIP6F and
SGEFT,
(ii) make, have made, use, import and sell
devices manufactured using HIP6F and SGEFT
and AMD Improvements to HIP6F and SGEFT,
(iii) make Improvements to HIP6F and SGEFT and
Derivative Processes using HIP6F and SGEFT
technology,
(iv) undertake ***** with respect to HIP6F and
SGEFT and sublicense the rights granted in
Section 6.7
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(c)(i), (ii) and (iii) only as part of such
*****,
(v) undertake ***** with respect to HIP6F and
SGEFT and sublicense the rights granted in
Section 6.7 (c)(i), (ii) and (iii) only as
part of such *****. Notwithstanding,
Motorola agrees to license *****, with whom
Motorola is having products made pursuant to
Section 6.7(c)(ii), to manufacture and sell
only engineering and prototype sample
quantities of products manufactured using a
particular HIP6F or SGEFT to parties other
than Motorola, AMD, ***** within ***** after
the first commercial shipment of a product
manufactured using the particular HIP6F or
SGEFT. Upon the approval of AMD, such
approval not to be unreasonably withheld,
Motorola may undertake further ***** with
respect to the particular HIP6F or SGEFT
within the ***** period. Motorola may
undertake ***** after the ***** period,
(vi) upon written approval of AMD, such approval
not to be unreasonably withheld, undertake
***** within ***** of the first commercial
shipment of a product manufactured using a
particular HIP6F or SGEFT and without
written approval, undertake ***** HIP6F or
SGEFT ***** thereafter with respect to a
particular HIP6F or SGEFT and sublicense the
rights granted in Section 6.7 (c)(i), (ii)
and (iii) only as a part of such *****.
(vii) undertake one ***** within ***** after the
first commercial shipment of a product
manufactured using a particular HIP6F and
SGEFT and ***** HIP6F or SGEFT *****
thereafter and sublicense the rights granted
in Section 6.7 (c)(i), (ii) and (iii) only
as a part of such *****. Upon mutual
agreement of the parties, such approval not
to be unreasonably withheld, Motorola may
undertake further ***** with respect to
HIP6F and SGEFT within the ***** period.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(d) In the event that AMD exercises its rights granted by
Motorola in Section 6.7(b)(iv)-(vii), Motorola will
negotiate in good faith with such ***** for a license
under Motorola patents essential to utilize HIP6F and
SGEFT and Improvements thereto on reasonable terms,
or, at Motorola's option, will represent and warrant
to AMD that it will not assert it's patents essential
to utilize HIP7L against the *****. In the event that
Motorola enters into a patent license with, or
covenants not to assert its patents against a *****
who received a ***** under a particular HIP6F or
SGEFT as described in this Section, AMD will *****
for the particular HIP6F or SGEFT.
(e) In the event that Motorola exercises its rights
granted by AMD in Section 6.7 (c)(iv)-(vii), AMD will
negotiate in good faith with such ***** for a license
under AMD patents essential to utilize HIP6F and
SGEFT and Improvements thereto on reasonable terms,
or, at AMD's option, will represent and warrant to
Motorola that it will not assert it's patents
essential to utilize HIP6F and SGEFT against the
*****. In the event that AMD enters into a patent
license with, or covenants not to assert its patents
against, a ***** who received ***** under a
particular HIP6F or SGEFT as described in this
Section, Motorola will ***** such ***** for the
particular HIP6F or SGEFT.
(f) The development of HIP6F and SGEFT may be done in AMD
or Motorola facilities, as agreed by the parties, and
shall be staffed appropriately as determined by the
Executive Board of Directors and/or the Steering
Committee.
(g) In connection with the license grant in Section
6.7(c), AMD represents and warrants that it will
remove from HIP6F any
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
technology subject to a claim of ownership by
*********. AMD will indemnify and defend Motorola
from and against any claim ***** that any technology
provided by AMD with regard to HIP6F and/or the
license granted to Motorola under Section 6.7(c)
violates *********, provided that Motorola promptly
informs AMD of any such claim, permits AMD with
counsel of its choosing to control the defense of the
action, and provides reasonable cooperation and
assistance in connection with the action. If AMD is
not able to procure the rights necessary for Motorola
to maintain its license on reasonable terms, or to
modify HIP6F after reasonable efforts so that it is
no longer infringing without substantially impairing
its function or performance, then AMD may send a
notice of such inability to Motorola and AMD will not
be liable for any damages resulting from infringing
activity occurring after such notice. *****.
The indemnity provided in this Section will
not apply in the event the infringement claim is
attributable to the combination of HIP6F or AMD
Improvements thereto in combination with other
technology or processes implemented solely by
Motorola or others. Notwithstanding, upon the request
of AMD, Motorola will be required to assist AMD in
developing and implementing a mutually agreeable
substitute for any AMD Flash Technology that is
infringing. *****.
(h) In the event that either AMD or Motorola *****
pursuant to Sections 6.7(b)(vi) or 6.7(c)(vi)
respectively, that party will provide ***** to the
other party and have ***** with the *****. In the
event that the ***** with a particular ***** in a
reasonable period of time or *****
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
*****, the ***** will then have the right *****.
Notwithstanding, Motorola and AMD intend to cooperate
with respect to *****.
6.8. Foundry Support.
(a) In the event that AMD has the HIP6F process in
production earlier than Motorola who is in good faith
attempting to qualify such process, at Motorola's
request, AMD will manufacture for Motorola up to
*****, or such greater amount as the parties may
agree to, until Motorola's facility is prepared to
provide production volume using that process. The
parties will negotiate and execute a separate foundry
services agreement which shall include commercially
reasonable terms and conditions, including pricing,
in connection with the sale of such wafers. At
Motorola's request, AMD will manufacture utilizing
future processes (including SGEFT), similar low
volume and prototype products for Motorola until the
Motorola is prepared to manufacture products
utilizing such processes at its own facilities.
(b) In the event Motorola requests foundry support as
provided in Section 6.8(a) it must represent as a
condition of receiving such support that it has
obtained the necessary "have made" rights from any
third parties involved in the products to be
manufactured under Section 6.8(a) to enable AMD to
undertake such manufacturing. In the event a claim is
asserted against AMD as a result of Motorola's
failure to obtain such rights, Motorola will
indemnify and defend AMD from and against any such
claim, provided that AMD promptly informs Motorola of
any such claim, permits Motorola with counsel of its
choosing to control the defense of the action, and
provides reasonable cooperation and assistance in
connection with the action. If Motorola provides AMD
with written notice to stop manufacturing pursuant to
Section 6.8(a), Motorola will not be liable for any
damages resulting from any manufacturing by AMD
occurring after such notice. In the event of a stop
notice, AMD will have no obligation to reserve any
further wafer manufacturing capacity for Motorola
under this Section and Motorola shall pay AMD
reasonable cancellation charges for any reserved
capacity.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
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6.9. In exercising the rights provided hereunder, AMD will *****
the Embedded Flash Technology to produce Power PC
Microprocessors or Motorola proprietary processor
architectures and Motorola will ***** the Embedded Flash
Technology to produce X86 Microprocessors or AMD proprietary
processor architectures.
7. Stand-Alone Flash Technology Rights.
7.1. For CDR3 and later CDR technologies, AMD hereby grants to
Motorola, under AMD Technology and AMD Intellectual Property,
a non-exclusive, non-transferable, paid-up license to ***** to
purchase such product, in accordance with the ***** will
notify AMD within ninety (90) days of notice *****, AMD or AMD
***** will be responsible for the distribution of *****,
directly or indirectly, to end user customers. If *****, AMD
agrees that Motorola will then have the right to *****.
8. Data Networking Products.
8.1. AMD License. AMD hereby grants to Motorola under AMD
Intellectual Property, a non-exclusive, non-transferable,
worldwide license to make, have made, use, import, and sell
Data Networking Products, to develop Derivative Products
thereto, and to make, have made, use, import and sell such
Derivative Products.
8.2. Motorola License. Motorola hereby grants to AMD under Motorola
Intellectual Property, a non-exclusive, non-transferable,
worldwide license to make, have made, use, import, and sell
Motorola Derivative Products to Data Networking Products;
provided, however, that such license is limited to Motorola
modifications to the functional blocks contained in the Data
Networking Products, and not to separate blocks providing new
functionality.
8.3. Royalties.
(a) Definitions. These definitions apply only to this
Section 8.3.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(i) "AMD Content" means the percent of the die
size of a Royalty Bearing Device that
consists of a Data Networking Product or an
Improvement thereto.
(ii) "Net Revenue" means the gross receipts
received by Motorola from the sale of
Royalty Bearing Devices less any taxes,
freight charges, insurance, discounts,
credits, commissions paid to third parties,
and returns.
(iii) "Royalty Bearing Device" means a device that
incorporates, in whole or in part, a Data
Networking Product or an Improvement
thereto.
(b) Royalty Payments and Statements. Within thirty (30)
days after the close of each quarter during which Net
Revenue was received by Motorola, Motorola will pay
to AMD royalty payments based on ***** reflected in
the table set forth below.
***** *****
***** *****
***** *****
***** *****
***** *****
***** *****
***** *****
Each payment will be accompanied by a statement
reflecting the Net Revenue received during the
quarter from Royalty Bearing Devices manufactured.
(c) Once a Data Networking Product is applicable as a
licensed Data Networking Product so as to be
considered in the table provided in Section 8.3(b)
above, that Data Networking Product may not be
counted again as another licensed Data Networking
Product regardless of the number of different
Motorola Derivative Products made.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
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(d) In the event that AMD sells a Motorola Derivative
Product of a Data Networking Product and that
Motorola Derivative Product is royalty bearing, AMD
must waive its royalty for any such Motorola
Derivative Product.
(e) Audit. Motorola will maintain appropriate books and
records necessary to verify the information contained
in the royalty statements. AMD may upon reasonable
notice and at its expense during normal business
hours and not more than once each year have a Big 6
certified public accounting firm review Motorola's
books and records to verify the information contained
in the royalty statements. If the audit reveals a
deficiency in any royalty payment, Motorola will
promptly pay the amount of that deficiency. If the
audit reveals that payments were made in excess of
the amounts due, Motorola will be entitled to, at
Motorola's election, either a prompt refund of the
excess payment or a credit towards future royalty
obligations. If the audit reveals a deficiency in
excess of ***** of the amount of the royalty payments
being audited, Motorola will pay the reasonable costs
of such audit.
8.4. Delivery. In connection with the licenses granted under
Section 8.1 and 8.2, each party will deliver to the other net
lists and product specifications for the designs being
licensed.
9. X86 Microprocessor Purchases. Motorola will have the right to purchase
AMD's X86 Microprocessors as a preferred customer.
10. Assumption of Risk.
Each party understands and acknowledges that except as expressly
provided herein, it uses any technology delivered or licensed to it "AS
IS" and at its own risk, without recourse against the other party.
11. Confidentiality.
11.1. The Receiving Party will for a period of seven (7) years from
the date of disclosure (a) not disclose Confidential
Information to any third party, (b) restrict dissemination of
Confidential Information to only those employees who must be
directly involved with Confidential Information, and (c) use
the same degree of care as for its own information of like
importance, but at least use reasonable care, in safeguarding
against disclosure of Confidential Information of the
Disclosing party.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
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11.2. It is neither party's intent to use the specific information
disclosed to it under this Agreement in its own product
development, except as expressly authorized or licensed by
this Agreement. However, the employees of either party during
the term of this Agreement may further develop their general
knowledge, skills, and experience in the technical areas to
which the Confidential Information relates. The subsequent use
by such employees of such general knowledge, skills and
experience in the ordinary course of business does not
constitute a breach of this Agreement. Further both parties
recognize that receipt of Confidential Information under this
Agreement shall not create any obligation in any way limiting
or restricting the assignment of employees within either
Party.
11.3. Notwithstanding Section 11.1 above, the parties agree that
certain disclosures of Confidential Information to third
parties including but not limited to *****, and vendors will
be necessary. Each party hereto may make disclosures of the
others' Confidential Information provided that a
confidentiality agreement having terms substantially similar
to those in Appendix G is entered into between the third party
and the disclosing party.
13. Term and Termination.
13.1. Term. This Agreement will commence on the Effective Date and
will continue for a period of seven (7) years unless
terminated earlier in accordance with this Section 13 or
Section 14.
13.2. Termination for Cause by Either Party. Either party will have
the right to terminate this Agreement at any time if:
(a) The other party is in material breach of any
warranty, term, condition or covenant of this
Agreement and fails to cure that breach within sixty
(60) days after receiving notice of that breach and
the other party's intention to terminate;
(b) The other party (i) becomes insolvent; (ii) admits in
writing its insolvency or inability to pay its debts
or perform its obligations as they mature; or (iii)
becomes the subject of any voluntary or involuntary
proceeding in bankruptcy, liquidation, dissolution,
receivership, attachment or composition or general
assignment for the benefit of creditors; provided
that if such condition is assumed involuntarily it
has not been dismissed with prejudice within thirty
(30) days after it begins.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
13.3. Termination for Convenience. Commencing on January 1, 2001,
either party may terminate this Agreement without cause by
providing written notice of termination to the other party.
Such termination will be effective six months after such
notice is given.
13.4. Effect of Termination. Upon any termination of this Agreement,
each party will be released from all obligations and
liabilities to the other occurring or arising after the date
of such termination, except that the following will survive
any termination of this Agreement: *****. Neither party will
be liable to the other for damages of any sort solely as a
result of terminating this Agreement in accordance with its
terms. Termination of this Agreement will be without prejudice
to any other right or remedy of either party.
14. Change of Control.
14.1. In the event of a Change of Control of a party to this Agreement,
the following will occur:
(a) the Non-Acquired Party will have the right to
terminate the Agreement;
(b) the ***** may ***** to the ***** the right under the
***** of the ***** to make, have made, use, import,
sell and otherwise dispose of ***** of the ***** and
***** to those *****;
(c) with respect to any ***** that the ***** and the
***** do not agree to continue developing, the *****
will be limited to the ***** and ***** that exist as
of the time of the Change of Control;
(d) the ***** will negotiate in good faith with ***** for
any additional rights sought by the *****; and
(e) in the event the CDR3 Project is not completed and
the Non-Acquired Party and the Acquiring Party are
unable to reach
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
agreement on continuation of that development or in
the event the parties are unable to deliver a *****
by ***** in substantial compliance with the program
plan set forth in Exhibit F, then the royalty
provisions of Section 6.6 will apply, and will be
payable by the Acquiring Party.
15. Right to Develop Independently. Nothing in this agreement will impair
either party's right to acquire, use, license, develop, manufacture or
distribute for itself, or have others develop, manufacture or
distribute for it, technology other than the technology being developed
and/or licensed under this agreement.
16. Disclaimer of Consequential, Etc. Damages. IN NO EVENT SHALL EITHER
PARTY BE LIABLE TO THE OTHER OR ANY OTHER PERSON FOR ANY SPECIAL,
INDIRECT, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND,
INCLUDING BUT NOT LIMITED TO, LOSS OF PROFITS OR DAMAGES TO THE OTHER
PARTY'S BUSINESS REPUTATION HOWEVER CAUSED AND ON ANY THEORY OF
LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY OR TORT
(INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT THE FIRST PARTY HAS
BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE
FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
17. General.
17.1. Relief from Obligations. Neither party will be deemed in
default of this Agreement to the extent that performance of
its obligations or attempts to cure any breach are delayed or
prevented by reason of any act of God, fire, natural disaster,
accident, act of government, shortages of material or supplies
or any other cause beyond the control of such party ("Force
Majeure"), provided that such party gives the other party
written notice thereof promptly and, in any event, within
fifteen (15) days of discovery thereof and uses good faith
efforts to so perform or cure. In the event of such a Force
Majeure, the time for performance or cure will be extended for
a period equal to the duration of the Force Majeure but not in
excess of one hundred eighty (180) days. If the party seeking
to be excused from performance of a Substantial Obligation
cannot recover from the Force Majeure situation and resume
satisfactory performance within one hundred eighty (180) days,
of commencement of the Force Majeure situation, the other
party may at its option, immediately terminate this Agreement.
A Substantial Obligation is defined as a milestone task
essential to the completion of a Project undertaken pursuant
to this Agreement, as set forth in a particular Statement of
Work.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
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AMD/Motorola Technology Development and License Agreement
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17.2. Relationship of Parties. Neither party nor their employees,
consultants, contractors or agents are agents, employees or
joint venturers of the other party, nor do they have any
authority whatsoever to bind the other party by contract or
otherwise. They will not represent to the contrary, either
expressly, implicitly, by appearance or otherwise.
17.2.1. Personnel. When present on the site of the other party,
employees of either party shall comply with all the rules
applicable to contractor personnel resident at or visiting
the premises of the party controlling the premises. Each
party shall provide to the other a set of documents
setting forth all such rules applicable to the contractor
personnel resident at or visiting their facilities. Any
waiver of this obligation must be agreed upon by both
parties and must be in writing. Each party must sign an
appropriate written resident contractor agreement, make
employees aware of the requirement, and ensure compliance.
17.2.2. Employee Selection. Each party shall be responsible for
the selection and screening of its employees who will be
assigned to work on any Project under this Agreement. Each
party shall be responsible for the acts of its employees,
and agrees to indemnify, defend, and hold the other party,
its officers, agents, and employees, harmless from and
against any and all claims, costs, attorney fees, fines,
or similar expenses of whatsoever kind or character,
including specifically, but not limited to, those
resulting from injury or death to persons or damage to
property, to the extent due to any fault or negligence of
the indemnifying party and/or any officer, employee, or
agent acting on the indemnifying party's behalf.
17.2.3. Solicitation of Employees. To the extent permitted by law,
during the term of this Agreement each party agrees
neither to solicit directly for employment purposes the
employees of the other party performing services under
this Agreement, nor knowingly to solicit such employees
via solicitations calling for knowledge and experience
predominantly weighted to Projects under this Agreement
(although this shall not forbid indirect solicitations for
employees having the general knowledge necessary for such
Projects). Neither party shall make any payment or gift of
any value to any employee of the other party without the
employing party's prior concurrence. Neither party shall
make any representation that might cause an employee
assigned by one party
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to believe that an employment relationship exists between
such employee and the other party.
17.2.4. Work Place Safety. The work place safety of employees
assigned to Projects under this Agreement shall be the
sole and full responsibility of the assigning party. If
either party should become aware of the existence of any
hazardous conditions, property, or equipment which are
under the control of the other party it shall so advise
the other party; however, it shall remain the first
party's responsibility to take all necessary precautions
against injury to persons or damage to property from such
hazards, property, or equipment until corrected by the
other party. Each party agrees to comply with the
Occupational Safety and Health Act (OSHA), applicable OSHA
standards, applicable state safety and health laws and
regulations, any applicable municipal ordinances, and
applicable facility safety rules of which the party has
notice, regarding the employees it assigns to Projects
under this Agreement.
17.4. Employment Taxes and Benefits. It is understood and agreed
that nothing in this Agreement is intended to, nor will it
result in, an employee of a party becoming an employee of the
other party or becoming a joint employee of both parties. Each
party remains solely responsible for the payment of all
withholding taxes, social security, unemployment insurance,
workers' compensation insurance, disability insurance or
similar items, including interest and penalties thereon, with
respect to its employees. Each party will provide written
notice to all employees participating in any Project under
this Agreement that they will not by virtue of participating
in the Project, working at the other party's facility,
interacting with the management of the other party, or
otherwise performing services in accordance with this
Agreement become an employee of the other party.
17.5. Assignment. The rights and liabilities of the parties under
this Agreement will bind and inure to the benefit of the
parties' respective successors, executors and administrators,
as the case may be; provided that neither party may assign or
delegate its obligations under this Agreement, either in whole
or in part, except as set forth in Section 14 or to a
subsidiary or affiliate of that party, without the other
party's written consent. Any attempted assignment or
delegation without such consent will be void.
17.6. Notices. All notices, reports, requests, acceptances and other
communications required or permitted under this Agreement will
be in writing. They will be deemed given
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
(a) When delivered personally,
(b) When sent by confirmed facsimile,
(c) One day after having been sent by commercial
overnight carrier with written verification of
receipt, or
(d) Five days after having been sent by registered or
certified mail, return receipt requested, postage
prepaid, or upon actual receipt thereof, whichever
first occurs.
All communications will be sent to the receiving party's address as set
forth below or to such other address that the receiving party may have
provided for purpose of notice as provided in this Section.
General Counsel, MS-150 Vice President and Associate General
Advanced Micro Devices, Inc. Counsel for Patents, Trademarks and
One AMD Place Licensing
P.O. Box 3453 Motorola, Inc.
Xxxxxxxxx, XX 00000-0000 0000 Xxxx Xxxxxxxxx Xxxx
Xxxxxxxxxx, XX 00000
17.7. Disputes.
(a) Dispute Resolution. In the event of a dispute between
the parties, the issue will first be escalated to the
Executive Board of Directors for attempted resolution
within a reasonable period of time. If the Executive
Board of Directors cannot resolve the dispute within
two (2) weeks of notice, the issue will be escalated
to the prospective Presidents or General Managers of
the respective Motorola or AMD business sector or
group or division, as the case may be. If these
individuals are unable to resolve the dispute within
two (2) weeks, the issue will be escalated to the
CEOs of Motorola and AMD who will have two (2) weeks
to resolve the issue.
Either party may initiate dispute resolution by
notice to the other party. Such notice will be
without prejudice to the invoking party's rights to
any other remedy permitted hereunder. The parties
will use commercially reasonable efforts to arrange
meetings or telephone conferences, as needed at
mutually convenient times and places, to facilitate
negotiations between the parties.
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December 3, 1998 - Execution Document
In the event that the parties fail or are unable to
resolve a dispute between them after exhausting the
escalation process set forth above, then either party
may declare that a deadlock exists.
In the event of a deadlock after undertaking the
forgoing steps to resolve the dispute in good faith,
the parties shall attempt to resolve the dispute
through mediation prior to instituting litigation or
other adversary proceeding. Notwithstanding the
previous sentence, no disputes pertaining to the
intellectual property of either party shall be
subject to mediation.
(b) Mediation. A party shall initiate a mediation by
serving written notice on the other party by
facsimile and overnight mail. The parties may select
any mediator mutually agreeable to them. If the
parties cannot agree on a mediator within fifteen
(15) days, they will, within five (5) days thereafter
submit a joint request for mediation to the Austin,
Texas office of the American Arbitration Association
("AAA") and request the AAA to select an appropriate
mediator with experience in resolving financial and
commercial disputes.
The mediation session shall occur within thirty (30)
days of the selection of the mediator unless the
parties mutually agree to extend this time, and shall
be scheduled for not less than one day. Each party
agrees to send a representative with full settlement
authority to the mediation. The mediation shall be in
the English language and shall be conducted
exclusively in Austin, Texas, unless otherwise agreed
by the parties. The parties agree to hold the content
of the mediation in confidence and further agree that
the mediator is disqualified as a litigation witness
for any party to the mediation. The parties further
agree that the mediation shall be considered to be a
form of settlement negotiations, the content of which
shall not be admissible as evidence of liability in
any judicial proceeding. Each party shall bear its
own expenses and an equal share of the expenses of
the mediator and, where applicable, the AAA. The
parties agree that any refusal to mediate under this
section is a breach of contract for which damages may
be recovered in litigation between the parties.
Except as provided in Subsection (e) below, if the
party who ultimately prevails in any litigation
institutes a court action or other adversary
proceeding without first attempting mediation as
required hereby, SUCH PREVAILING PARTY SHALL NOT BE
ENTITLED TO ATTORNEYS' FEES OR COSTS THAT MIGHT
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
OTHERWISE BE AVAILABLE TO IT UNDER THIS CONTRACT OR
IN COURT ACTION.
(c) Litigation. In the event a dispute is not resolved by
such mediation, the parties shall have the right to
initiate a suit, action or other adversary proceeding
before the appropriate court exclusively within the
jurisdiction of the state and federal courts in the
state of Texas. In the event of such suit, action or
other adversary proceeding, the Parties hereto (a)
submit to the exclusive personal jurisdiction of the
federal and state courts in the State of Texas and
(b) expressly waive any right they may have to a jury
trial and agree that any such proceeding shall be
tried by a judge without a jury. All defenses based
on passage of time shall be tolled pending mediation,
unless otherwise prohibited by law.
(d) Applicable Law. This Agreement shall be governed by,
construed, enforced and interpreted in accordance
with the internal substantive laws of the State of
Texas applicable to agreements to be made and to be
performed solely within such State, without giving
effect to any conflicts or choice of laws principles
which otherwise might be applicable and excluding the
United Nations Convention on Contracts for the Sale
of Goods.
(e) Interim Relief. Nothing in this Section 17.7 shall be
construed to preclude any party from seeking
injunctive or other provisional relief in order to
protect its rights pending mediation, provided
however that such relief may only be sought within
the appropriate judicial forum as provided in
Subsection (c) above. In the event a party seeks
interim relief without first attempting mediation,
such party shall not forfeit its entitlement to legal
fees and costs that would otherwise be available to
it only if such party initiates mediation within
fifteen (15) days after initiating the action seeking
interim relief. A request to a court for interim
relief shall not be deemed a waiver of the obligation
to mediate.
(f) Legal Fees and Costs. Except as otherwise provided
herein, the substantially prevailing party in any
proceeding brought by one party against the other
shall be entitled, in addition to any other rights
and remedies it may have, to reimbursement for the
expenses reasonably incurred by it in such
proceeding, including but not limited to court costs,
reasonable attorneys' fees, expenses of expert
witnesses, costs of appeal, and any other reasonable
out-of-pocket expenses. For the purposes of
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
this Subsection (f), the "substantially prevailing
party" means the party whose final settlement offer
(or other monetary position or claim) prior to the
completion of the mediation contemplated by this
Section 17.7 is closest to the judgment awarded by
the court, regardless of whether such judgment is
entered in favor or against such party, or who
obtains substantially all of the relief sought by it,
all as determined by the court having jurisdiction
over the proceeding. Such a prevailing party would
include, but is not limited to, a party who offers to
dismiss a proceeding upon the other party's payment
of the sums allegedly due or performance of the
covenants allegedly breached.
17.8. Compliance With Laws. Each party will comply with all
applicable laws and regulations governing their activities
under this Agreement, including but not limited to the export
control laws and regulations of the United States, with
respect to any Confidential Information and technical data
licensed, delivered, or to which a party is provided access
under this Agreement. If requested by one party hereto, the
other party hereto agrees to sign written assurances and other
export-related documents as may be required for the requesting
party to comply with any applicable export regulations.
17.9. Severability. If any provision of this Agreement, or the
application thereof, shall for any reason and to any extent be
determined by a court of competent jurisdiction to be invalid
or enforceable under applicable law, the remaining provisions
of this Agreement shall be interpreted so as best to
reasonably effect the intent of the parties. The parties
further agree to replace any such invalid or unenforceable
provisions with valid and enforceable provisions designed to
achieve, to the extent possible, the business purposes and
intent of such invalid and enforceable provisions.
17.10. Entire Agreement. This Agreement, together with all exhibits
and schedules hereto, constitutes the entire understanding and
agreement of the parties with respect to the subject matter of
this Agreement, and supersedes all prior and contemporaneous
understandings and agreements, whether written or oral, with
respect to such subject matter.
17.11. Amendments, Modifications and Waivers. No delay or failure by
either party to exercise or enforce at any time any right or
provision of this Agreement will be considered a waiver
thereof or of such party's right thereafter to exercise or
enforce each and every right and provision of this Agreement.
No single waiver will constitute a continuing or subsequent
waiver. No waiver, modification or
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
amendment of any provision of this Agreement will be effective
unless it is in writing and signed by the parties, but it need
not be supported by consideration.
17.12. Headings and References. The headings and captions used in
this Agreement are used for convenience only and are not to be
considered in construing or interpreting this Agreement. All
references in this Agreement to sections, paragraphs, exhibits
and schedules shall, unless otherwise provided, refer to
sections and paragraphs hereof and exhibits and schedules
attached hereto, all of which are incorporated herein by this
reference.
17.13. Independent Action. The parties affirm that their respective
marketing policies or activities, or pricing information,
relative to the subject matter of this agreement shall not be
discussed or exchanged between them.
17.14. Publicity. Nothing contained in this Agreement shall be
construed as conferring any right to use in advertising,
publicity, or other promotional activities any name, trade
name, trademark, or other designation of either party to this
Agreement (including any contraction, abbreviation, or
simulation of any of the forgoing) and each party hereto
agrees not to disclose to others the terms and conditions of
this Agreement, except as may be required by law or
governmental regulation, without the express written consent
of the other party.
17.15. Construction. This Agreement has been negotiated by the
parties and their respective counsel. This Agreement will be
fairly interpreted in accordance with its terms and without
any strict construction in favor of or against either party.
Any ambiguity will not be interpreted against the drafting
party.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
Effective Date.
ADVANCED MICRO DEVICES, INC. MOTOROLA, INC.
Signature: /s/ Xxxx Xxxxxx Signature: /s/ Xx. Xxxxxxxx Xxxxxx
------------------------------ --------------------------
Name: Xxxx Xxxxxx Name: Xx. Xxxxxxxx Xxxxxx
----------------------------------- -------------------------------
Title: Executive VP, Strategic Relations Title: Senior VP and General Manager
---------------------------------- ------------------------------
Date: Date:
----------------------------------- -------------------------------
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
APPENDIX A
EMBEDDED FLASH TECHNOLOGY DESCRIPTIONS ((S).1.12)
Page 49
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
APPENDIX B
LOGIC PROCESS TECHNOLOGY DESCRIPTIONS ((S).1.22)
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
APPENDIX C
STATEMENT OF WORK
(vii) SPECIFICATION
8. SCHEDULE
----------------------------- ----------------------------- ---------------------------- ----------------------------
Milestone Deliverables Party Responsible Due Date
----------------------------- ----------------------------- ---------------------------- ----------------------------
----------------------------- ----------------------------- ---------------------------- ----------------------------
----------------------------- ----------------------------- ---------------------------- ----------------------------
----------------------------- ----------------------------- ---------------------------- ----------------------------
----------------------------- ----------------------------- ---------------------------- ----------------------------
(vii) Budget Estimate:
--------------------------------------- -------------------------------------- --------------------------------------
Quarter Total Budget Elements
--------------------------------------- -------------------------------------- --------------------------------------
Q199 Employee Expenses:
--------------------------------------- -------------------------------------- --------------------------------------
Facility Expenses:
--------------------------------------- -------------------------------------- --------------------------------------
Equipment Expenses:
--------------------------------------- -------------------------------------- --------------------------------------
Third Party Vendors:
--------------------------------------- -------------------------------------- --------------------------------------
Q299 Employee Expenses:
--------------------------------------- -------------------------------------- --------------------------------------
Facility Expenses:
--------------------------------------- -------------------------------------- --------------------------------------
Equipment Expenses:
--------------------------------------- -------------------------------------- --------------------------------------
Third Party Vendors:
--------------------------------------- -------------------------------------- --------------------------------------
4. TECHNICAL COORDINATORS:
Motorola:
AMD:
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AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
APPENDIX D
COST EQUALIZATION ((S) 3.2)
Page 52
APPENDIX D
AMD/MOTOROLA ALLIANCE - COST EQUALIZATION
1.0 COST EQUALIZATION
1.1. SCOPE. This appendix defines the methods, procedures and
reporting requirements as related to Project cost sharing between the two
parties.
1.2. ADMINISTRATION. The Steering Committee will appoint a Program
Management Team, for each Project, that is accountable for Project planning,
budgeting, reporting, and administration.
1.3. CALENDAR. Each party's fiscal calendar, although different from
each other, closely resembles the Gregorian calendar quarters and year. The
differences in time between each party's fiscal calendar is deemed immaterial
and, consequently, each party will use their own fiscal calendar in the Cost
Equalization determination to accommodate each party's financial activity close
and reporting schedules. In the event that either party's fiscal calendar
quarter ends in excess of 15 days of the same Gregorian quarter, the parties
will meet and mutually agree to a new time schedule for Cost Equalization
determination, reporting, and payment. Prior to the beginning of each calendar
year, the parties will exchange fiscal calendars for the coming year.
1.4. APPROVED PROJECTS. The parties agree no Project will be
considered in the Cost Equalization determination without prior approval of a
Statement of Work by the Executive Board of Directors, except as described below
for 1998. The parties agree any change to a Project plan scope or duration or
budget variance over the course of a fiscal year in excess of 110% must be
approved by the Executive Board of Directors. For quarterly Cost Equalization
determination, no party will be able to claim development costs for any Project
in any quarter in excess of 120% of the budgeted development costs for that
Project in that quarter unless it is determined that the projected costs do not
exceed the 110% threshold requiring Executive Board of Directors approval.
1.5. COST EQUALIZATION DETERMINATION, TIMING, AND PAYMENT TERMS.
1.5.1. FOR 1998. Cost Equalization calculations will be determined by
each party for 4Q98 (approximating the period October 1, 1998 through December
31, 1998) according to each party's fiscal calendar.
Each party's allowable costs associated with 1998 Projects will be
estimated and reported to the other party by December 3, 1998 for fiscal 4Q98.
This date is established to accommodate each party's financial reporting for
fiscal year-end 1998. 4Q98 actual costs will be determined according to the Cost
Equalization determination timelines established for 1999 and subsequent years
in section 1.5.2 below and payment of the difference between 4Q98 actual costs
and 4Q98 estimated costs will occur according to this schedule.
The determination, estimation, and reporting of allowable costs by both
parties will be dependent on Statements of Work for the Projects. These
Statements of Work will be
developed retroactive to October 1, 1998 through each party's fiscal year-end
1998, presented by the Program Managers to the Executive Board and approved by
the Executive Board by December 3, 1998.
The 4Q98 Cost Equalization payment will be due on December 31, 1998 via
electronic funds transfer as defined in section 1.5.2 below. Time is of the
essence for the receipt of this payment.
The parties agree to establish a Statement of Work by quarter through
its completion for each Project continuing into 1999 and for any Project that
will commence in 1999 and gain approval for each Statement of Work prior to the
beginning of 1999. The parties agree that this does not preclude the addition of
new Projects during 1999.
1.5.2. FOR 1999 AND SUBSEQUENT YEARS. Thirty days after the conclusion
of each quarter, each party will provide a statement to the other stating the
Cost Equalization determination for each Project then pending, including a
summary breakdown of the cost elements.
Processing of device and product test structures or test vehicles,
including equal quantities of transfer wafers for each party, are included in
the scope of Project requirements and, as such, are intended to be included in
the Statements of Work and are subject to Cost Equalization.
Except as set forth in the preceeding paragraph with respect to
transfer wafers, each party will bear its own costs in connection with
technology transfer and installation into production facilities and such costs
will not be subject to the Cost Equalization determination. Costs not subject to
Cost Equalization include process documentation, all reasonable personnel
expenses, including travel, for personnel assigned to assist in a process
transfer, and other similar costs. In the event that one party (first party)
requires more transfer wafers than the other (second party), the quantity of
transfer wafers required by the first party in excess of that required by the
second party will not be subject to Cost Equallization and the cost thereof
shall be borne by the first party.
If either party requests the other party to process material either
because it requires a quantity of transfer wafers in excess of that required by
the other party or for a purpose beyond the scope of a Project such as for the
transfer of a technology, verification of designs, additional processing for
technology evaluation, or product qualification, the non-requesting party will
make commercially reasonable efforts to comply with the request and will charge
the requesting party a price not to exceed actual costs.
Pre-production, pilot production, risk starts, or other product specific
processing are outside the scope of Projects and are not to be included in the
Statements of Work or included in the Cost Equalization determination. This type
of processing by one party on behalf of the other party would be considered
Foundry.
The parties will compare the Cost Equalization statements and the party
with the smaller amount for the quarter will pay the other party fifty percent
(50%) of the difference between the two parties' Cost Equalization amounts
within forty-five (45) days after the end of the quarter. Payment will be made
by electronic funds transfer:
To AMD at:
Bank of America, San Francisco
Bank Routing #: 000000000
Account #: 1233404900
To Motorola at:
1st Nat'l Bank of Chicago
Xxx 0xx Xxxxxxxx Xxxx Xxxxx
Xxxxxxx, XX 00000
Bank Routing #: 000000000
Account #: 52-65673
1.5.3. HIP5L DELIVERY. In addition to the foregoing, AMD will pay
Motorola four equal payments of ***** for HiP5L tool set installation in AMD's
Fab30; on ***** for initial Fab30 wafer starts on the HiP5L process; on *****
for qualification of HiP5L in Fab30; and ***** for support by Motorola of HiP5L
yield improvements in Fab30. Should AMD unilaterally decide to forego or delay
any of the above stated milestones, or be unable to meet the stated milestones,
AMD shall still be responsible for and shall make each payment as stated above.
1.6. COST CATEGORIES AND CLASSIFICATIONS. The parties agree that the
following cost types and classifications will be used in the development of
Project budgets and in the Cost Equalization determination:
1.6.1. PROCESS COSTS. Actual costs incurred in a production facility or
research and development facility owned by one of the parties. These costs
include, but are not limited to, direct labor and fringes, supervisory labor and
fringes, engineering labor and fringes, raw material, chemicals and gases,
utilities, building depreciation, equipment depreciation, maintenance, and all
other costs associated with the normal operation of such facilities. Normal
operation includes equipment utilization at practical capacity. Neither party
will bear the costs of under utilization in the other party's facility.
Capitalization and depreciation schedules used in the Cost Equalization
determination will be consistent with the operating policies and guidelines of
each party.
The units of measure to determine these costs for budgeting and Cost
Equalization are wafers processed for a fabrication facility and die for an
assembly or test facility. Costs assigned to each unit will be determined by the
type of processing and number of process steps incurred by each unit. Costs
assigned to each Project unit will follow the same and consistent procedures of
assigning costs as any non-Project related unit in the same facility.
Unit volumes processed through these facilities are determined via the
Statements of Work and represent volumes necessary to complete the development
requirements as identified therein. Processing of device and product test
structures or test vehicles is included in the scope of Project requirements.
Pre-production, pilot production, risk starts, or other product specific
processing are outside the scope of Project requirements.
Interest expense is excluded for purposes of determining actual process
costs.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
1.6.2. STANDARDIZED COSTS. Non-Process and non-Direct costs associated
with Project related engineering development and support. These costs include,
but are not limited to:
(a) Process, device, design, reliability, and test engineering, and
related personnel labor and fringes, otherwise not comprehended in Process costs
above, at a mutually agreed upon standard rate of *****. This rate will be
reviewed annually and mutually agreed to by both parties through their
respective compensation personnel. Any change to this rate will be presented to
the Executive Board of Directors for final approval and incorporated into the
Statements of Work.
For budget cost reporting, each Project will be budgeted by individual
name and/or number of individuals, and Project time applied by quarter.
For actual cost reporting, each Program Manager will provide an
employee participation list each month, in conjunction with the monthly progress
reports, by individual name and Project time applied in weekly increments for
that individual. Weekly increments may be subdivided to the nearest whole day or
0.2 weeks. The standard rate per quarter will be prorated by the number of
Project weeks applied versus total weeks in the quarter.
(b) One party's personnel assigned to a Project, and the other
party's assignees to that party's facility where office space is provided, will
be assessed by that party at the standard rate of ***** prorated by the time
applied to the Project by individual as outlined above for purposes of
comprehending items such as comparable rent; facilities upkeep; phone;
networking requirements; systems administration support; workstation hardware
depreciation and maintenance; software amortization, expense, licenses, and
maintenance; internal data processing charges; and general office supplies.
This rate will be reviewed annually and mutually agreed to by both
parties' finance personnel. Any changes to this rate will be presented to the
Executive Board of Directors for final approval and incorporated into the
Statements of Work.
(c) Experiments, tests, and development in device lab, reliability
lab, test lab or other facilities otherwise not comprehended in Process costs
above will be budgeted at amounts mutually agreed to by the Program Managers, or
the parties if the Project has only one Program Manager, in the Statements of
Work. These costs will be assigned to the Projects at the budgeted amounts in
the quarter actually incurred for Cost Equalization determination.
(d) For individuals in this cost category, including one party's
assignees to the other party's facility, the party owning the facility is
responsible for the acquisition and cost of individual tool requirements. These
costs include, but are not limited to, engineering workstations, software,
licenses, and maintenance.
1.6.3. DIRECT COSTS. Actual costs incurred for budgeted activities of
Projects that are not comprehended or otherwise covered in the two categories
above. These costs include, but are not limited to:
(a) External processing, testing, consulting, or evaluation;
(b) Photomask costs identified to the Project
1.7. SPECIAL CONSIDERATION OF UNIQUE TOOLS. Both parties agree that,
given the nature of the Projects, some unique, state-of-the-art, unproved or
costly tools will be
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
acquired in the course of the Projects. These tools may be process-related in a
fabrication facility or evaluation or test-related in a lab. When such tools are
identified, they will be specifically highlighted as unique tools with their
delivery date and estimated cost noted in the Statements of Work.
Targeted delivery location defines the party responsible for the
purchase of these tools. The depreciation schedule will be the same as defined
by local operating procedures (currently five-year straight-line method for both
parties or as mutually agreed). Application of the depreciation expense will be
consistent with the above and will be included at 100% for budgeting and Cost
Equalization determination.
In the event of tool obsolescence and subsequent decomissioning,
process development incompatibility, or lack of functional performance within
the depreciable scheduled life, both parties agree to share equally in the
write-off of the remaining book value plus decommission and disposal costs net
of any fair market or disposal value. Such cost sharing will not occur if a tool
is removed from a Project and is placed into use for a non-project activity.
Actual disposal of the tool is left to the discretion of the owning party.
Payment for this type of cost will occur according to the standard quarterly
Cost Equalization determination and payment due dates in the quarter following
the cost determination.
1.8. PROJECT PLANS, TIMING, BUDGETING, APPROVAL, REVIEW, AND
REVISION. At a minimum, Statements of Work will include:
(1) A timeline of activities in quarterly segments, with major
milestones identified, from the date of inception to Project target completion,
(2) Best estimates of unit processing requirements, targeted processing
facility, and photomask requirements by quarter,
(3) Best estimates of standardized personnel requirements by individual
name and/or number of individuals and time applied by quarter,
(4) Best estimates of device, reliability, test and related lab
experimentation, evaluation, development, and testing requirements by quarter,
(5) Identification of unique tools, anticipated delivery dates,
estimated cost, and targeted delivery location,
(6) Best estimates of outside processing, evaluation, and consultation
requirements by quarter,
(7) Identification of each party's portion and participation in the
project by quarter,
(8) Signatures of the Program Manager(s) and Technical Coordinator(s)
signifying review of the Statement of Work milestones, completion date, and
budgeted resources and expenses.
Statements of Work should be developed, budgeted, and approved during
the year preceding Project commencement. All Statements of Work must be
developed, budgeted, and approved by the Executive Board of Directors prior to
commencement.
Project budgets and Cost Equalization determinations must be reviewed
and approved quarterly by the Program Manager(s) prior to delivery of Cost
Equalization statements to the other party.
In the event of a material change in circumstances, estimates, or
Project scope which makes the Project budget inaccurate, the Program Manager(s)
must request a modification of the budget for that Project and present the
revised plan to the Executive Board of Directors for approval of the
modification. The existing Project budget shall remain in effect unless and
until amended by approval of the Executive Board of Directors.
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
APPENDIX E
HIP5L, HIP6L PROGRAM PLAN - REV. 2.0
PROPOSAL FOR AMD PARTICIPATION
IN LOGIC TECHNOLOGY PROGRAM (see attachment)
Page 53
Confidential
APPENDIX E
HiP5L, HiP6L Program Plan - Rev. 2.0
Proposal for AMD Participation in Logic Technology Program
AMD proposes to participate in the joint Logic Technology proposal as described
below. The goal of the program is to complete production qualification of the
***** technology in Fab30 by the *****. The critical assumptions and milestones
proposed to achieve this are summarized as follows:
1) Motorola will provide AMD with all technology targets for HIP5L and HIP6L.
These are to include the ***** Motorola for HiP5L. This transfer should be
completed before *****. Motorola will provide the necessary information
early enough to allow AMD design engineers to meet the maskset tape out
dates for the HIP5L ***** and HIP6L ***** product vehicles.
2) A core management team will be defined with responsibility to ensure the
success of the joint technology programs. The team will be responsible for
understanding HIP5L progress to date and further defining a detailed
transfer methodology. The team will be also be responsible for identifying
shared development and transfer activities for HiP6L and insuring a
successful technology transfer to both MOS13 and Fab30. It is estimated that
the participation of four to six people from each company will be required.
3) AMD will provide Motorola with ***** technology to allow processing to begin
at Motorola by *****. This ***** will be one ***** AMD but ***** and will
include a ***** Motorola *****. Motorola will provide all necessary ***** to
enable measurement of ***** as included in this *****. This ***** will
establish a Fab30 startup vehicle and demonstrate the capability of *****
technology.
4) HIP5L transfer schedule will be such as to allow ***** in Fab30 by *****.
AMD and Motorola engineers will meet prior to ***** to define ***** and
facility requirements, and the ***** together with the identification of
***** HiP6L. AMD will assign integration and process engineers in Austin as
part of the technology transfer plan. These engineers will work together
with Motorola engineers to allow AMD to begin ***** Fab30 by *****.
5) AMD will provide Motorola with a ***** for HIP6L technology to allow *****.
This ***** will be one ***** AMD but ***** above. In addition, a joint
agreement on ***** HIP6L will be completed during ***** to
allow for AMD to begin Fab30 ***** and a ***** begin in *****. AMD and
Motorola will work towards developing a strategy and the creation of a *****
that will achieve *****
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Confidential
***** on HIP6L in Fab30 by *****. The joint core team will agree on
development steps and guidelines together with roles & responsibilities.
6) During the transfer of HIP5L and HIP6L Motorola will provide limited
engineering support onsite in Fab30 provided that resources for such support
are available and their criticality to Motorola in the particular timeframe
does not prevent assignment at Fab30. This should include specialists in
device engineering and process integration, as well as key module engineers
for the *****. The number, timing and duration of Motorola assignments in
Dresden will be mutually agreed upon. It is estimated that 4-5 Motorola
engineers will be needed in Dresden for 1-2 weeks per process transfer.
Motorola will also provide jointly agreed ***** in ARPDL or MOS13 to
complete ***** to facilitate both technology transfers.
7) Motorola and AMD acknowledge that the dates set forth in this Appendix 2 are
aggressive and that there is risk associated with achieving the particular
goals by such dates. Although Motorola and AMD have agreed to attempt to
meet the schedules set forth herein, *****.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
APPENDIX F
CDR3 PROGRAM PLAN - REV. 3.0
PROPOSAL FOR AMD PARTICIPATION IN CDR3 PROGRAM (see attachment)
Page 54
Confidential
APPENDIX F
CDR3 Program Plan - Rev. 3.0
Proposal for AMD Participation in CDR3 Program
AMD Proposes to participate in the CDR3 development proposal as described on the
attached chart. The goal of the program is to complete the ***** of ***** in a
Motorola fab by *****, with ***** to follow. The critical assumptions and
milestones proposed to achieve this are summarized as follows:
1) A major checkpoint of ***** is defined (based on a ***** program start) to
make an *****, and define a ***** on that selection, consistent with the
logic platform already defined for CDR3. (In order to accomplish this, AMD
will need to complete ***** - as well as sample silicon wafers [for AMD] to
build ***** models for the ***** by *****. AMD will ***** recommendation on
information gathered from the CDR1 support program, from information from
AMD test chips [that exist] that are pertinent to the decision, and from
Motorola's input.)
2) Coincident with item #1 is the publication of ***** module by *****. This
will be based on, and compatible with the logic design rules defined by
Motorola on *****. Motorola will control and manage design rule
documentation.
3) A test array will be designed and completed by *****. It will contain a
***** test structures. It will be consistent with the defined design rules,
and will utilize the *****. These ***** should be selected from existing AMD
and Motorola ***** used in their logic programs. *****.
4) The ***** will be fabricated in SDC and a Motorola fab during *****. AMD
will establish a support team of device and process integration specialists,
three to four people, during ***** (with consultation support prior to that)
to work jointly with Motorola in directing *****. An additional team will be
established in SDC during ***** supporting ***** SDC. Process integration
engineering support in a Motorola fab will be provided by Motorola. As
appropriate, process module development resources from AMD will support
unique process development requirements that may be necessary to achieve
successful process integration. Motorola may assign process integration
engineers as required for process transfer and training.
5) An AMD design team will be assembled in Austin to support the generation of
the *****, and the design of the *****. AMD will take the lead role for the
***** Motorola for *****. Based on this assumption, a team of six AMD design
and layout
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Confidential
engineers will be assembled in AMD Austin for this task. The ***** will be
completed in time to tape out by ***** with the ***** by Motorola completed
by *****. Technical specifications and requirements for the *****,
particularly performance parameters, need to be specified by *****. Motorola
will have primary responsibility for the design of the *****. AMD will
assign engineers to support accomplishment of these tasks. Support will
consist of establishing feasibility of the design parameters of the ***** by
approximately ***** and making available the results of AMD's experience and
expertise in *****, with the goal of enabling demonstration of a functional
***** by *****.
6) AMD product engineering, with support from Motorola, will support ***** and
characterization, conduct ***** studies, participate in the design of the
***** for the product, as well as participate in the characterization and
qualification of the *****. Approximately three people will be assigned to
this task out of Sunnyvale and Austin. AMD will host some Motorola
engineering staff to learn this area.
7) SDC will provide silicon process support in two stages; ***** work to
understand ***** unique to AMD flash experience, and ***** parallel with
***** by Motorola for initial evaluation of full flow structures.
*****.
8) A ***** should be support by the *****, with completion by *****. A *****
should be completed by ***** based on product reliability testing and
characterization. Qualification criteria and specifications are to be
defined at the appropriate time by a team consisting of members form
technology, product, fab, reliability and quality, etc.
9) MOS12 will carry the product silicon processing, qualification material
processing and subsequent manufacture. MOS13 will support transfer to MOS12.
AMD will provide selected technical support necessary to help assure
successful qualification.
10) Product execution metrics are preliminary defined as set forth below. The
final definitions of the following metrics will be set forth in the
Comprehensive Agreement.
1. *****
2. *****
3. *****
4. *****
5. *****
6. *****
7. *****
8. *****
9. *****
10. *****
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
Confidential
Relationship to other projects: AMD's consultation involvement on CDR1 will also
serve to acquaint AMD with details and status of the *****, and will support
the ***** task in item #1 above. It is also expected that during 1998-1999, the
HIP6F effort will be mounted, building on and augmenting the resource team
assembled for CDR3.
***** Certain information on this page has been omitted and filed separately
with the Securities and Exchange Commission. Confidential treatment has been
requested with respect to the omitted portions.
AMD/Motorola Technology Development and License Agreement
December 3, 1998 - Execution Document
APPENDIX G
FORM OF CONFIDENTIALITY AGREEMENT ((S) 11.3) (see attachment)
Page 55
APPENDIX G: FORM OF CONFIDENTIALITY AGREEMENT ((S)11.3)
--------------------------------------------------------------------------------
In order to protect certain confidential information which may be disclosed by
the Disclosing Party, with offices at _____ to Recipient, with offices at _____,
Disclosing Party and Recipient agree that:
1. The Disclosing Party representative responsible for disclosing the
confidential information is:
2. The Confidential Information (hereinafter Confidential Information) to be
disclosed under this Agreement is described as:
3. Recipient shall use the Confidential Information only for the purpose of:
evaluation.
4. This Agreement controls only Confidential Information which is disclosed for
a period of three (3) years from the later date shown below.
5. Recipient's duty to protect the Confidential Information under this
Agreement expires _____ from the receipt of information.
6. Recipient shall protect the disclosed Confidential Information by using the
same degree of care, but no less than a reasonable degree of care, to prevent
the unauthorized use, dissemination or publication of the Confidential
Information as the Recipient uses to protect its own confidential information of
a like nature. Recipient shall not disclose any Confidential Information
disclosed hereunder to any third party and shall limit disclosure of information
to only those of its employees with a need to know.
7. Recipient shall have a duty to protect only Confidential Information which
is (a) disclosed by Disclosing Party in writing and is marked as confidential at
the time of disclosure, or which is (b) disclosed by Disclosing Party in any
other manner, is identified as confidential at the time of disclosure and is
also summarized and designated as confidential in a written memorandum delivered
to the Recipient within thirty (30) days of the disclosure.
8. This Agreement imposes no obligation upon Recipient with respect to
Confidential Information which (a) was in the Recipient's possession on or
before the receipt from Disclosing Party; (b) is or becomes a matter of public
knowledge through no fault of the Recipient; (c) is rightfully received by the
Recipient from a third party without a duty of confidentiality; (d) is
independently developed by the Recipient; or (e) is disclosed pursuant to a
valid order of a court or authorized government agency provided that Recipient
has given Disclosing Party an opportunity to defend, limit or protect such
disclosure.
9. All confidential information shall remain the property of Disclosing Party
or (AMD or Motorola), as applicable, and shall be returned, with all copies that
have been made, upon written request of Disclosing Party or (AMD or Motorola),
respectively, with the exception of one copy which may be kept by the Receiving
Party for archival purposes.
10. Disclosing Party warrants that it has the right to make the disclosure of
the Confidential Information contemplated by this Agreement. Recipient does not
acquire any intellectual property rights under this Agreement except the limited
right to the use and copy the Confidential Information set out in paragraph 3
above.
11. Neither party has an obligation under this Agreement to purchase any
service or item from the other party.
12. Neither party has an obligation under this Agreement to offer for sale
products using or incorporating the confidential information.
13. Recipient shall adhere to the US Export Administration Regulations (EAR),
currently found at 15 CFR Parts 730 through 744, and shall not export or re-
export or release the technology, software, or any source code to a national of
a country in Country Groups D:1, E:2 or Syria, or export to country Groups D:1
or E:2 the direct product of such technology, if such foreign produced direct
product is subject to national security controls as identified on the Commerce
Control List (currently found in Supplement 1 to Part 774 of EAR), unless
properly authorized by the US Government. These export requirements shall
survive any termination of this Agreement.
14. The parties do not intend that any agency or partnership relationship be
created between them by this Agreement.
15. All additions or modifications to this Agreement must be made in writing and
must be signed by both parties.
16. In the event of a breach by Recipient of the terms of this Agreement related
to _____ (AMD's or Motorola's) Confidential Information, _____ (AMD or Motorola)
will be a third party beneficiary of any claims Disclosing Party has against
Recipient for such breach.
17. This Agreement is made under and shall be construed according to the laws
of the State of Texas.
DISCLOSING PARTY RECIPIENT
By: By:
Name: Name:
Title: Title:
Date: Date:
