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CONFIDENTIAL TREATMENT
EXHIBIT 10.5.2
1995 AMENDMENT TO
TECHNOLOGY TRANSFER AND FOUNDRY AGREEMENT
AND
CO-DEVELOPMENT AGREEMENT
This 1995 Amendment to Technology Transfer and Foundry
Agreement and Co-Development Agreement ("Agreement") is entered into as of
August 16, 1995 between SEEQ Technology Incorporated ("SEEQ"), a Delaware
corporation having a place of business at Fremont, California, and Hualon
Microelectronics Corporation, a Taiwanese corporation ("HMC") that has a place
of business at Hsinchu, Taiwan. This Agreement shall become effective on the
date (the "Effective Date") of execution of the Settlement Agreement, Release
and Tolling Agreement dated the date hereof entered into between SEEQ and HMC
("Settlement Agreement").
RECITALS
1.10 SEEQ and HMC entered into a Technology Transfer and Foundry
Agreement dated as of July 16, 1990 (the "1990 Foundry Agreement") pursuant to
which HMC served as a foundry for SEEQ to manufacture certain logic and other
ICs.
1.11 The Parties entered into a Co-Development Agreement dated February
24, 1992 (Co-Development Agreement.")
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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1.12 SEEQ and HMC have entered into the Settlement Agreement pursuant
to which SEEQ and HMC have agreed to settle certain disputes under the 1990
Foundry Agreement and the Co-Development Agreement.
1.13 In connection with the implementation of the Settlement Agreement,
the parties desire to amend the terms and conditions of the 1990 Foundry
Agreement and the Co-Development Agreement with respect to [*] Products and [*]
Processes;
Accordingly, SEEQ and HMC agree to the following terms and conditions:
1. INTRODUCTION
1.1 This Agreement amends and modifies the 1990 Foundry
Agreement and the Co-Development Agreement. Except as amended hereby, each of
said agreements shall each remain in full force and effect. In the event of any
inconsistency or other conflict between this Agreement and either or both of the
1990 Foundry Agreement or the Co-Development Agreement, the terms of this
Agreement shall prevail, and the other agreement is deemed amended by this
Agreement.
1.2 Except as otherwise defined herein, capitalized terms
shall have the meanings given to them in the 1990 Foundry Agreement.
1.3 [*] Products means SEEQ's [*], [*] and [*] products.
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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1.4 [*] Process means the [*] CMOS 1.2-micron Process that was
delivered by SEEQ to HMC and subsequently modified and developed by HMC and that
is now known as [*].
2. FOUNDRY SERVICES
2.1 Minimum Wafer Foundering. Upon the terms and conditions
set forth herein, at SEEQ's request, HMC shall manufacture Articles of [*]
Products for delivery to SEEQ. HMC may also, but shall not be obligated to,
manufacture wafers for Products Developed by SEEQ in addition to the [*]
Products, as determined by the PARTIES. After execution of the Settlement
Agreement, HMC shall, upon request from SEEQ, based on a four (4) week month,
make wafer starts available to SEEQ at a minimum of (a) [*] 125-millimeter
wafers (or equivalents in other size wafers) started during the period from the
Effective Date through August 31, 1995, (b) [*] 125-millimeter wafer starts (or
equivalents in other size wafers) started per month (at the rate of
approximately [*] wafers per week) during the period from September 1, 1995
until the earlier of (i) the end of the term of the 1990 Foundry Agreement, or
(ii) the date in which the [*] Products have been qualified by SEEQ for
manufacture on the [*] Stepper, and (c) [*] 125-millimeter wafer starts (or
equivalents in other size wafers) started per month (at the rate of
approximately [*] wafers per week) during the period following
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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the date on which the [*] Products have been qualified by SEEQ for manufacture
on the [*] Stepper.
2.2 Pricing. The initial prices per wafer of [*] Products
foundered by HMC shall be as set forth in Appendix B to the 1990 Foundry
Agreement, which appendix is modified to read as set forth in Appendix B hereto.
3. ROYALTIES
Neither HMC nor SEEQ shall be required to pay any royalty to
the other with respect to the sale of any of the [*] Products, including any
HMC-Improved or SEEQ-Improved version(s) of each such product, as the case may
be.
4. NOTICES
All notices given under the 1990 Foundry Agreement
shall be in writing and shall be sufficient if delivered in
person or mailed, postage prepaid, registered or certified mail,
return receipt requested, or transmission by telecopier with
confirmation of receipt, to the PARTIES at the following
addresses:
SEEQ: SEEQ Technology Incorporated
0000 Xxxxxxx Xxxxxxx
Xxxxxxx, Xxxxxxxxxx 00000
Attn: President and Chief Executive Officer
Telecopier: (000) 000-0000
With a copy to: Xxxxxxx, Xxxxxxx & Xxxxxxxx
One Market
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx, Esq.
Telecopier: (000) 000-0000
HMC: Hualon Microelectronics Corporation
6th Floor, Kua Hua Life Insurance Xxxxxxxx
00 Xxxxx Xxxx Xxxxx Xxxx, Xxxxxxx 0
Xxxxxx, Xxxxxx
Attn: President and CEO
Telecopier: 886-2-531-3241
With a copy to: Xxxxxx, Xxxxxxxx, Marcus, Xxxxxx & Xxxx
000 Xxxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxxxx, XX 00000
Attn: Xxxxxxx X. Xxxx, Esq.
Telecopier: (000) 000-0000
5. YIELD IMPROVEMENT
HMC and SEEQ agree that both Parties shall work together
immediately following the Effective Date of this Agreement (a) to enable HMC to
return probe yields to the levels achieved during 1994 (i.e., in excess of [*]
die per wafer for the [*]) and (b) to thereafter continue to work together to
further improve yields in the manufacture of the SEEQ Products.
6. PAYMENTS FOR FOUNDRIED PRODUCTS
SEEQ shall pay for foundried Products, and shall pay for Mask
Generation Costs, all in accordance with Appendix B. SEEQ shall pay HMC all
amounts due under this Agreement within thirty (30) days after the receipt by
SEEQ of an invoice for such charges. HMC reserves the right to modify such
payment terms if any amount payable is sixty (60) days past due (unless such
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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amount is being contested in good faith), or if SEEQ has become insolvent or is
not able to pay its debts as they become due.
7. MINIMUM WAFER PURCHASE REQUIREMENTS
The Parties acknowledge that Paragraph 7.2 of the 1990 Foundry
Agreement which deals with minimum wafer purchase requirements for SEEQ shall no
longer be applicable.
IN WITNESS WHEREOF, authorized officers or representatives of the
Parties have executed this Agreement on the dates entered below.
SEEQ TECHNOLOGY INCORPORATED HUALON MICROELECTRONICS CORPORATION
By ___________________________ By ___________________________
____________________ ____________________
____________________ ____________________
Date _______________________ Date _______________________
0
XXXXXXXX X
[*] FOUNDRY DETAIL AND PRICING
1. EVALUATION, QUALIFICATION, RISK AND PRICING
1.1 Initial Pricing Terms. The initial prices for the [*],
the [*] and the new [*] design shall be as set forth
below:
1.1.1 [*] Initial Pricing. Initial pricing for the
[*] shall be [*] per wafer.
1.1.2 [*] Initial Pricing. Initial pricing for the [*]
shall be (i) [*] per sorted die (or [*] per die if
sorted at SEEQ) for all die invoiced prior to
December 31, 1995, and (ii) [*] per sorted die (or
[*] per die if sorted at SEEQ) for all die invoiced
after January 1, 1996.
1.1.3 [*] Initial Pricing. Initial pricing for SEEQ's new
[*] design shall be based on actual sort yields, when
available, and negotiated against an effective wafer
price target of [*] per wafer.
1.2 Yield Improvements; Future Price Reductions. The PARTIES agree
that they will work diligently and with their respective best
efforts to achieve yield improvements in the manufacture of
the [*] Products hereunder. HMC agrees that, in consideration
for SEEQ's efforts in the attempt to improve such yields, HMC
will negotiate in good faith with SEEQ to reduce the prices
set forth above (i) for the [*] Product manufactured hereunder
so that SEEQ may obtain a share of the benefits of yield
improvements in excess of [*] die per wafer, and (ii) for the
[*] and [*] Products, the Parties shall share the benefits
over the base line yields to be agreed upon once mass
production of such Products commences.
1.3 [*] Stepper. HMC shall take all required actions to bring the
[*] Stepper on-line as soon as possible following the
Effective Date to enable HMC to
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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manufacture [*] Products utilizing the [*] Stepper and to
enable HMC to achieve increased manufacturing capacity for the
[*] Products to be purchased by SEEQ. SEEQ and HMC agree to
develop a program immediately following the Effective Date to
accomplish this capacity increase. SEEQ agrees to take all
necessary actions to assist HMC to accomplish this capacity
increase.
1.4 HMC Engineering Services.
1.4.1 HMC agrees to provide the engineering services to
build the mask sets and process engineering lots
required to update the [*] mask set and to bring the
[*] Stepper on-line to achieve increased capacity.
The new mask sets are to be used for the manufacture
of products for both SEEQ and HMC.
1.4.2 HMC agrees to provide the engineering services to
build the mask sets and process engineering lots
required to bring up the latest revision of the [*]
in HMC's manufacturing facility. The new mask sets
are to be used for the manufacture of products for
both SEEQ and HMC.
1.4.3 HMC agrees to provide the engineering services to
build the mask sets and process engineering lots
required to bring up the new [*] design in HMC's
manufacturing facility. The new mask sets are to be
used for the manufacture of products for both SEEQ
and HMC.
1.5 Database Update. SEEQ shall update the [*] and [*] databases
for use by HMC in accordance with its contractual rights. Such
updates shall incorporate any present or future design
improvements completed by SEEQ during the term of this
Agreement and shall accommodate the use of the [*] Stepper, if
technically feasible.
1.6 The [*]. SEEQ shall also provide to HMC the initial
database of the [*] Product, once it has been
developed, and shall provide database updates for the
[*] Product during the term of this Agreement. HMC
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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shall not sell the [*] Product outside of the Permitted
Territories prior to the end of the term of the 1990 Foundry
Agreement, provided, however, that prior to the end of such
term HMC may sell the [*] Product to its sakes agent or
representative who may not be located within the Permitted
Territories if such sale is solely for resale in the Permitted
Territories.
1.7 NRE Payments. SEEQ shall pay Non-recurring Engineering
("NRE") charges as follows:
1.7.1 SEEQ shall pay to HMC all NRE charges incurred to
establish [*] manufacturing in HMC's Facility, and
shall pay such charges within thirty (30) days after
receipt of an invoice therefor, as follows:
(a) SEEQ shall pay to HMC [*] upon delivery to
HMC of a completed mask set by the mask
vendor;
(b) SEEQ shall pay to HMC [*] upon delivery by
HMC to SEEQ of eight (8) or more wafers from
the first engineering lot under this
Agreement;
(c) SEEQ shall pay to HMC [*] upon delivery by
HMC to SEEQ of eight (8) or more wafers from
the second engineering lot under this
Agreement.
1.7.2 SEEQ shall pay to HMC all NRE charges incurred to
transfer the [*] product for manufacturing in HMC's
Facility, and shall pay such charges within thirty
(30) days after receipt of an invoice therefor, as
follows:
(a) SEEQ shall pay to HMC [*] upon delivery to
HMC of a completed mask set by the mask
vendor;
(b) SEEQ shall pay to HMC [*] upon delivery by
HMC to SEEQ of eight (8) or more wafers from
the first engineering lot
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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under this Agreement;
(c) SEEQ shall pay to HMC [*] upon delivery by
HMC to SEEQ of eight (8) or more wafers from
the second engineering lot under this
Agreement.
1.7.3 SEEQ shall pay to HMC all NRE charges incurred to
transfer and for start-up of the [*] product for
manufacturing in HMC's Facility, and shall pay such
charges within thirty (30) days after receipt of an
invoice therefor, as follows:
(a) SEEQ shall pay to HMC [*] upon delivery to
HMC of a completed mask set by the mask
vendor;
(b) SEEQ shall pay to HMC [*] upon delivery by
HMC to SEEQ of eight (8) or more wafers from
the first engineering lot under this
Agreement;
(c) SEEQ shall pay to HMC [*] upon delivery by
HMC to SEEQ of eight (8) or more wafers from
the second engineering lot under this
Agreement.
1.7.4 It is the intent of SEEQ and HMC that all NRE work to
be performed under this Agreement will be completed
by December 31, 1995, and that all NRE charges to be
paid by SEEQ under this Agreement will be paid by
December 31, 1995.
1.8 Other Matters.
1.8.1 HMC acknowledges that SEEQ expects that the [*]
Process will be rapidly brought into control and will
yield consistently at wafer sort. HMC agrees to use
its best efforts, and SEEQ agrees to cooperate with
HMC, to ensure this is achieved.
1.8.2 Wafer acceptance is to be subject to normal
e-test, visual and workmanship criteria. The
[*] INDICATES THAT MATERIAL HAS BEEN OMITTED AND CONFIDENTIAL TREATMENT HAS BEEN
REQUESTED THEREFOR. ALL SUCH OMITTED MATERIAL HAS BEEN FILED SEPARATELY WITH THE
COMMISSION PURSUANT TO RULE 24b-2.
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PARTIES shall cooperate to determine these matters.
1.8.3 Scrap criteria and RMA policy on misprocessed wafers
must be competitive. The PARTIES shall cooperate to
determine these matters.
1.9 E-Sort.
1.9.1 E-sort will be done either at SEEQ's facility in
Fremont, or at HMC's facility in Taiwan, and each
PARTY will have auditing rights for the E-sort
facility of the other PARTY during normal working
hours and with reasonable notice. Proposed changes of
software or hardware will follow the same procedure
as fab process changes.
1.9.2 All E-sort documentation will be maintained for 24
months. Each week, the E-sort area will provide the
following information to both PARTIES:
- wafers received by lot number, product and
date received
- wafers E-sorted by lot number and date
E-sorted
- die yield by lot number and product
- wafers waiting to be E-sorted by lot number
and product.
1.9.3 At HMC's option, E-sort can be transferred to a
SEEQ-qualified HMC facility. Any change in die price
for HMC's E-sort will be determined by the PARTIES.
