* Confidential treatment has been granted or requested with respect to
portions of this exhibit, and such portions have been replaced with
"**". Such confidential portions have been deleted and separately
filed with the Securities and Exchange Commission pursuant to Rule 24b-2.
AGREEMENT
THIS AGREEMENT is entered into as of January 26, 2000 between ENHANCED MEMORY
SYSTEMS, INC., a Delaware corporation ("Licensee") and INFINEON TECHNOLOGIES
AG, a German corporation ("Licensor").
1. Certain Definitions.
1.1 "Products" shall mean Licensee's integrated circuit products and
devices included in the Product Roadmap in Exhibit A which may be
modified by written agreement of the Parties to include any other
product, including, but not limited to, Licensee's line of high-speed
enhanced dynamic random access memory products.
1.2 "Proprietary Rights" shall mean Licensor's patent rights, copyrights,
mask work rights, trade secret rights and all other intellectual and
industrial property rights of any sort relating to the Technology.
1.3 "Technology" shall mean inventions (whether or not patentable), ideas,
processes, formulae, design rules, design documentation, test
information and know-how in the field of certain DRAM products as
defined in Exhibit B, but specifically excluding manufacturing process
information, owned or controlled by Licensor as of the date of this
Agreement, together with any and all Improvements to the Technology
made by or on behalf of Licensor during the time period with respect
to which Licensor is required to provide such Improvements to
Licensee, as described in Section 5 below. Tangible parts of the
Technology shall be set forth in Exhibit C.
1.4 "Territory" shall mean the world.
2. License Grant. Subject to all the terms and limitations of this Agreement,
Licensor hereby grants Licensee a non-exclusive, worldwide, non-assignable,
non-transferable right and license in and to the Technology, and under all
applicable Proprietary Rights in the Technology (the "License"). The License
is limited to and may be exercised solely for the purpose of making, using and
marketing (including selling and offering to sell) the Products in the
Territory.
Page-3
3. Duration and Scope of License. The License is granted for a period
commencing upon the execution of this Agreement and continuing through
December 31, 2005. On or before December 31, 2003, and at two-year intervals
thereafter, Licensor and Licensee shall review their relationship and shall
consider in good faith extending by additional periods of two (2) years each
the period through which the License shall remain in effect. Licensee
acknowledges and agrees that Licensee may only use the License for Products to
be produced for Licensee by Licensor, in accordance with the manufacturing
agreement described in Section 8 below.
4 Transfer of Technology; Indemnification. To carry out the physical transfer
of Technology from Licensor to Licensee, Licensor shall disclose to Licensee,
as soon as reasonably practicable after the effective date of this Agreement
and from time to time, Technology in tangible form (items described in Exhibit
C) as would be reasonably necessary for a person skilled in the art to produce
the Products. Licensee acknowledges and agrees that Licensee shall not use any
information disclosed to Licensee by Licensor in connection with any disclosure
or transfer by Licensor of the Technology, or any part thereof, as the basis
for any claim by Licensee against Licensor for infringement of any of
Licensee's intellectual property rights. Accordingly, Licensee hereby
irrevocably waives and releases any claims that Licensee may have, now or in
the future, against Licensor alleging infringement by Licensor of any of
Licensee's intellectual property rights, to the extent Licensee becomes aware
of the basis for any such claim through disclosure by Licensor of any of the
Technology or through Licensee's exposure to Licensor's manufacturing processes
or Technology by virtue of or in any way related to this Agreement and the
transactions and/or activities contemplated hereby.
5. Improvements. Grant Back. Any Licensor modification or improvement
(including those made for Licensor by employees or contractors) to or on the
Technology licensed to Licensee made during the term of this Agreement (except
improvements created specifically for a third party) shall be included in the
License without additional charge to Licensee and without any obligation for
Licensor to provide any such modifications or improvements to Licensee other
than set forth in the Amended Agreement for Wafer Production and Testing
(effective concurrent with this agreement). Licensee hereby agrees and grants
to Licensor a non-exclusive, worldwide, non-transferable, fully paid up
license, under any modifications or improvements to the Technology and specific
to the Technology (whether or not patentable or copyrightable) made by or on
behalf of Licensee during the term of this Agreement and one year thereafter,
to make, have made, sell or otherwise dispose of any integrated circuit
products.
Page-4
6. Consideration; Representations Regarding Shares. In consideration for the
grant of the License by Licensor to Licensee, as described in Section 2 above,
Licensee has, contemporaneously with the execution of this Agreement, issued to
Licensor a total of two hundred fifty (250) shares (the "Shares") of the no par
value Common Stock of Licensee, which Shares represent twenty percent (20%) of
the shares of Common Stock issued and outstanding as of the date hereof.
Licensee represents and warrants to Licensor that, as of the date hereof, and
immediately after giving effect to the issuance to Licensor of the Shares, as
described above: (i) there are a total of one thousand two hundred and fifty
(1,250) shares of no par value Common Stock of Licensee issued and outstanding,
of which one thousand (1000) shares are owned by Ramtron International
Corporation and Two Hundred and Fifty (250) shares are owned by Licensor;
(ii) there are no other shares of capital stock, or rights to purchase capital
stock, of Licensee issued or outstanding; (iii) Licensee has all requisite
power and authority to enter into this Agreement, to issue the Shares to
Licensor in the manner described above, and to consummate the transactions
contemplated in this Agreement; (iv) the Shares issued by Licensee to Licensor
have been validly issued, are fully paid and non-assessable, and no further
action or consent is required on the part of Licensee to authorize the issuance
of such Shares to Licensor; and (v) the issuance of such Shares to Licensor,
subject to the truth and accuracy of the representations of Licensor, as
described below in this Section 6, complies in all respects with applicable
state and federal securities laws and regulations.
Licensor acknowledges that Licensee is a privately-held company, and that the
Shares have not been registered with the U.S. Securities and Exchange
Commission or any other national or local securities commission or agency, and
that any resale or other distribution of such Shares by Licensor may be
required to be made pursuant to registration under the Securities Act of 1933,
as amended, and/or any other applicable securities regulations, or pursuant to
an exemption from such registration requirement.
Licensor hereby represents and warrants to Licensee, and to the directors,
officers and control persons of Licensee, as follows:
(a) Licensor is an "accredited investor," as that term is defined in Rule
501 of Regulation D promulgated pursuant to the Act.
(b) Licensor has engaged previously in transactions similar to that
contemplated herein, and has such knowledge and experience in
financial and business matters that Licensor is capable of evaluating
the merits and risk of acquiring the Shares.
(c) The Shares which Licensor has acquired pursuant to this Agreement will
be acquired for investment only, for Licensor's own account, and not
with a view to, or offer for sale in connection with, the distribution
or transfer thereof. Licensor has no contract, undertaking, agreement
or arrangement with any person or entity to sell, pledge, donate or
otherwise transfer (with or without consideration) to any such person
or entity any of the Shares, and Licensor has no present plans or
intention to enter into any such contract, undertaking, agreement or
arrangement.
Page-5
(d) If, at any time after the date hereof, Licensor shall propose to
transfer the Shares, or any interest therein or portion thereof, to
any third party, Licensor shall first give written notice (a "Transfer
Notice") of such proposed transfer to Licensee. Such Transfer Notice
shall specify the Shares (or interest therein or portion thereof)
proposed to be transferred, the identity of the proposed transferee
(including the individual persons constituting the owners or
controlling persons of any transferee that is other than an
individual), and the price and all of the terms and conditions of
the proposed transfer. The Transfer Notice shall be deemed an offer
by Licensor to sell the interest which is the subject of the proposed
transfer to Licensee on the terms and conditions specified in the
Transfer Notice. Licensee shall have the right, for a period of sixty
(60) days after actual receipt of a Transfer Notice, within which to
elect in writing to purchase the interest offered by Licensor.
Licensee must purchase the entire interest offered by Licensor. The
closing date for the purchase of any interest pursuant to this Section
shall be held, unless otherwise agreed, that the principal office of
Licensee at 10:00a.m. on the date that is thirty (30) days after the
written election to purchase has been given by Licensee (or, if that
day is not a business day, on the next regular business day). At any
such closing, Licensee shall pay the purchase price for the interest
as provided herein, and Licensor shall execute and deliver appropriate
instruments transferring such interests, free and clear of all liens,
claims, encumbrances and restrictions. If Licensee has not delivered
written notice of its election to purchase the interest offered by
Licensor within the 60-day period referred to above, then Licensee
shall be conclusively deemed to have waived its right to purchase the
interest offered by Licensor., effective as of the end of such 60-day
period. If Licensee does not exercise its right to purchase the
interest offered by Licensor pursuant to this Section, or if Licensee
fails, refuses or neglects without fault of Licensor to close its
exercise of a right to purchase the interest offered by Licensor, as
described herein, then Licensor may transfer the interest offered in
accordance with the Transfer Notice; provided, however, that if such
transfer is not completed within sixty (60) days following the
expiration of Licensee'' right-to-purchase period, or is not made in
accordance with the Transfer Notice, then such right to transfer shall
expire and be null and void and the provisions of this Section shall
remain fully effective.
Page-6
7. Pre-Emptive Rights. If, at any time after the date hereof, Licensee wishes
to sell additional shares of its capital stock, or interests convertible into
such capital stock, Licensor shall be entitled to subscribe for such additional
shares of such capital stock, or interests convertible thereto, in proportion
to the percentage of shares of the capital stock of Licensee owned by Licensor
immediately prior to the issuance of any such additional shares of capital
stock or interests convertible thereto. The right to subscribe for such
additional shares of capital stock or interests convertible thereto shall be
granted to Licensor on uniform terms and conditions prescribed by the Board of
Directors of Licensee, to provide Licensor a fair and reasonable opportunity to
exercise such right. Licensor may waive such pre-emptive right in writing. A
waiver evidenced by a writing shall be irrevocable even if not supported by
consideration.
Notwithstanding the foregoing, Licensor shall not have any pre-emptive rights
to purchase or subscribe for: (i) shares issued as compensation to directors,
officers, agents or employees of Licensee, its subsidiaries or affiliates;
(ii) shares issued by Licensee to satisfy conversion or option rights created
to provide compensation to directors, officers, agents or employees of
Licensee, its subsidiaries or affiliates; (iii) shares issued to any employee
stock ownership plan established by Licensee; or (iv) shares to be issued
otherwise than for money.
Shares subject to the pre-emptive rights in favor of Licensor that are not
acquired by Licensor may be issued to any person within six (6) months after
being offered to Licensor at a consideration set by the Board of Directors of
Licensee that is not lower than the consideration set for the exercise of pre-
emptive rights in favor of Licensor. An offer of such shares at a lower
consideration or after the expiration of such six-month period shall be subject
to Licensor's pre-emptive rights, as described in this Section 7.
8. Manufacturing Agreement. From time to time during the term of this
Agreement, Licensee shall have manufactured at Licensor and shall purchase from
Licensor, and Licensor shall sell and supply to Licensee, the Products designed
by or for Licensee with the use of the Technology and/or the Proprietary
Rights. From time to time, Licensor and Licensee shall agree upon a minimum
number of wafers per month to be allocated to Licensee from Licensor's
manufacturing capacity for the manufacture and sale to Licensee of Products.
Licensor and Licensee agree that, in any event, Licensor shall allocate to
Licensee, for the manufacture and sale to Licensee of such Products, sufficient
manufacturing capacity to support Licensee's wafer purchases from Licensor to
an annual wafer purchase revenue of up to US $200,000,000 for the Products. As
soon as practicable after the effective date of this Agreement, Licensor and
Licensee shall negotiate and enter into a definitive manufacturing and supply
agreement relating to Licensor's manufacture and sale of Products to Licensee;
and such definitive manufacturing and supply agreement shall include, among
other things, a mutually agreeable forecasting mechanism for the Products, as
well as a price per wafer (or, if mutually agreed, per device) to be paid by
Licensee to Licensor in connection with the purchase and sale of such Products.
The price(s) to be paid by Licensee to Licensor with respect to each Product
shall be negotiated periodically, to reflect manufacturing yields, production
volumes and production and overhead costs relating to the manufacture of the
Products. Each such price shall then be agreed upon in writing between
Licensor and Licensee.
Page-7
9. Confidentiality. Each party recognizes the importance to the other of the
other's proprietary information. In particular, Licensee recognizes that the
Technology and other of Licensor's proprietary information (and the
confidential nature thereof) are critical to the business of Licensor and that
Licensor would not enter into this Agreement without assurance that such
Technology and information and the value thereof will be protected as provided
in this Section 9 and elsewhere in this Agreement.
Accordingly, each party agrees as follows:
9.1 The receiving party agrees (i) to hold the disclosing party's
proprietary information in confidence and to take reasonable
precautions to protect such proprietary information (including,
without limitation, all precautions the receiving party employs with
respect to its confidential materials), (ii) not to divulge (except
pursuant to a sublicense expressly authorized in this Agreement) any
such proprietary information or any information derived there from to
any third person, (iii) not to make any use whatsoever at any time of
such proprietary information except as expressly authorized in this
Agreement, and (iv) not to remove or export or re-export any such
proprietary information or any direct product thereof except in
compliance with all licenses and approvals required under applicable
U.S. and foreign export laws and regulations. Any employee given
access to any such proprietary information must have a legitimate
"need to know" and shall be similarly bound in writing. Without
granting any right or license, the disclosing party agrees that the
foregoing clauses (i), (ii) and (iii) shall not apply with respect to
information the receiving party can document (i) is in or (through no
improper action or inaction by the receiving party or any agent or
employee) enters the public domain, or (ii) was rightfully in its
possession or known by it prior to receipt from the disclosing party,
or (iii) was rightfully disclosed to it by another person without
restriction, or (iv) was independently developed by it by persons
without access to such information and without use of any proprietary
information of the disclosing party. The receiving party must
promptly notify the disclosing party of any information it believes
comes within any circumstance listed in the immediately preceding
sentence and will bear the burden of proving the existence of any such
circumstance by clear and convincing evidence. Each party's
obligations under this Section 9.1 (except under clause (iv) of the
first sentence) shall terminate two years after the date of this
Agreement.
9.2 Immediately upon termination of the receiving party's license under
Section 11, the receiving party will turn over to the disclosing party
all proprietary information of the disclosing party and all documents
or media containing any such proprietary information and any and all
copies or extracts thereof.
Page-8
9.3 The receiving party acknowledges and agrees that due to the unique
nature of the disclosing party's proprietary information, there can be
no adequate remedy at law for any breach of its obligations hereunder,
that any such breach may allow the receiving party or third parties to
unfairly compete with the disclosing party resulting in irreparable
harm to the disclosing party, and therefore, that upon any breach or
threat thereof, the disclosing party shall be entitled to appropriate
equitable relief (without the posting of any bond) in addition to
whatever remedies it might have at law and to be indemnified by the
receiving party from any loss or harm, including, without limitation,
lost profits and attorneys' fees, in connection with any breach or
enforcement of the receiving party's obligations hereunder or the
unauthorized use or release of any such proprietary information. The
receiving party will notify the disclosing party in writing
immediately upon the occurrence of any such unauthorized release or
other breach. Any breach of this Section 9 will constitute a material
breach of this Agreement.
10. No Restriction on Competition; Nonsolicitation. Nothing in this Agreement
shall be deemed to prohibit Licensee from developing, making, using, marketing
or otherwise distributing or promoting products competitive with Products
produced hereunder, provided that Licensee does not breach any provision of
Section 9 in doing so. However, so long as Licensor is required to provide
improvements of the Technology to Licensee under this Agreement and for one
year thereafter, neither party will solicit any employee or consultant of the
other to leave the employ of the other.
11. Patent Matters.
11.1 Licensor retains the sole right and discretion, but not the
obligation, to file and prosecute patent applications and maintain
patents in the Territory relating to the Technology or any
improvements made by Licensor. At Licensee's request, Licensor will
discuss its decision on these matters with Licensee, but Licensee
will not attempt to file or prosecute any such patent applications or
maintain any such patents except as Licensor may, at its sole
discretion, approve in writing.
Any improvements to Technology (whether or not patentable or
copyrightable) that either party develops shall be owned solely by
such party. Such party shall have the right, at its own expense and
solely in its own name, to apply for, prosecute and defend its
intellectual property rights with respect thereto. Licensee agrees
to place on all Products in a proper manner all reasonable patent and
patent application markings requested by Licensor.
Page-9
11.2 If Licensee becomes aware of any product or activity of any third
party that involves infringement or violation of any Licensor patent
or other Proprietary Right in the Territory, then Licensee shall
promptly notify Licensor in writing of such infringement or
violation. Licensor may, in its discretion, take or not take
whatever action it believes is appropriate. If Licensor elects to
take action, Licensee will fully cooperate therewith at Licensor's
expense. If Licensor initiates and prosecutes any such an action
under this Section 11.2, all legal expense (including court costs and
attorneys' fees) shall be borne by Licensor and Licensor shall be
entitled to all amounts awarded by way of judgment, settlement or
compromise.
11.3 Except for claims of Hyundai regarding US patents 4,460,416 ;
5,561,385 ; 5,594,765 ; 5,351,217, Licensor represents and warrants
that it is not aware of infringement or potential infringement issues
regarding the Technology that have not been communicated to Licensee
in writing before execution of this Agreement. If a third party
raises legally justifiable claims against Licensee for infringement
by the Technology, Licensor will, at its option and its own cost
undertake reasonable steps to either (i) obtain for Licensee a right
to use the Technology or (ii) to modify the Technology to become non-
infringing. Licensor, however, shall not be obligated to undertake
any action under this Section 11.3 which would cause initial costs
exceeding Euro 500.000.- or 1% of sales of Licensee whichever is
greater but shall in no event be liable in excess of 5.000.000.-
(five million) Euro. Licensor and Licensee agree to work
cooperatively regarding issues concerning patents and Proprietary
Rights and similar matters and to exercise reasonable business
judgment in carrying out the objects of this Agreement to avoid
exposing either party to liability under patent or similar laws in
any of the countries in the Territory.
12. Term and Termination.
12.1 Unless terminated pursuant to Section 12.2, this Agreement will
remain in effect from the effective date of this Agreement through
and including December 31, 2005; provided, however, that on or before
December 31, 2003, and at two-year intervals thereafter, Licensor and
Licensee shall meet to review their relationship and consider in good
faith extending by additional periods of two (2) years each the
period through which this Agreement shall remain in effect. Any such
agreement between Licensor and Licensee to extend the duration of
this Agreement shall be evidenced by a written agreement between
Licensor and Licensee regarding such extension.
12.2 If a party breaches a material provision of this Agreement, the other
party may terminate this Agreement upon 30 days' notice, unless the
breach is cured within the notice period.
Page-10
12.3 In the event of any termination of this Agreement, the License
granted to Licensee under this Agreement shall terminate and
Licensor's obligations to negotiate or provide goods, services,
facilities, technology or information shall cease, but all other
provisions of this Agreement will continue in accordance with their
terms (except that if the termination is on account of a breach by
Licensor, the license granted to Licensor in Section 5 shall
terminate and the License granted to Licensee in Section 2 will
continue for Technology licensed as of the termination date). Any
licenses surviving termination may be terminated by the granting
party in the same manner as provided in Section 12.2 if the other
party breaches a material surviving provision of this Agreement.
12.4 Neither party shall incur any liability whatsoever for any damage,
loss or expenses or any kind suffered or incurred by the other
arising from or incident to any termination of this Agreement (or any
part thereof) by such party which complies with the terms of the
Agreement whether or not such party is aware of any such damage, loss
or expenses.
12.5 Termination is not the sole remedy under this Agreement and, whether
or not termination is effected; all other remedies will remain
available, including good faith negotiations on the return of some of
or all of Licensee Shares owned by Licensor prior to breach by
Licensor of this agreement as set forth in Section 12.2 of this
agreement taking into account contributions made by Licensor to
Licensee as Technology or otherwise.
13. Incidental and Consequential Damages. Except for bodily injury of a
person, neither party will be liable under any contract, negligence, strict
liability or other theory for any indirect, punitive, incidental or
consequential damages with respect to any subject matter of this agreement
except a breach of Section 9.
14. Publicity. All notices to third parties and all publicity concerning the
terms and conditions of this Agreement shall be jointly planned and coordinated
by the parties. Licensor and Licensee shall mutually agree upon a press
release regarding the subject matter of this Agreement, which press release
shall announce Licensee's acquisition of a twenty percent (20%) equity
position in Licensee, and shall reference the value of the know-how and the
License provided by Licensor to Licensee hereunder; and which press release
shall be issued within ten (10) days following the execution of this Agreement.
15. Independent Contractors. The parties are independent contractors and not
partners, joint ventures or otherwise affiliated and neither has any right or
authority to bind the other in any way.
16. Assignment. The rights and obligations of the parties under this
Agreement may not be assigned or transferred (and any attempt to do so will be
void), except this Agreement and the rights and obligations hereunder may be
assigned to an acquirer of all or substantially all the assets, business or
stock of a party.
Page-11
17. Miscellaneous.
17.1 Amendment and Waiver. Except as otherwise expressly provided herein,
any provision of this Agreement may be amended and the observance of
any provision of this Agreement may be waived (either generally or
any particular instance and either retroactively or prospectively)
only with the written consent of the parties.
17.2 Governing Law and Legal Actions. This Agreement shall be governed by
and construed under the laws of Switzerland without regard to the
United Nations Convention on Contracts for the International Sale of
Goods. In any action or proceeding to enforce rights under this
Agreement, the prevailing party shall be entitled to recover costs
and attorneys' fees.
17.3 Headings. Headings and captions are for convenience only and are not
to be used in the interpretation of this Agreement.
17.4 Notices. Notices under this Agreement shall be sufficient only if
personally delivered, delivered by a major commercial rapid delivery
courier service or mailed by certified or registered mail, return
receipt requested to a party at its addresses set forth in the
signature block below or as amended by notice pursuant to this
subsection. If not received sooner, notice by mail shall be deemed
received 5 days after deposit in the mails.
17.5 Entire Agreement. This Agreement supersedes all proposals, oral or
written, all negotiations, conversations, or discussions between or
among the parties relating to the subject matter of this Agreement
and all past dealing or industry custom.
17.6 Warranty Disclaimer. Except as expressly provided in Section 11,
Licensee acknowledges and agrees that the technology is licensed and
provided "as-is" and Licensor makes no warranty with respect to any
Technology, goods, services, rights or other subject matter of this
Agreement and hereby disclaims warranties of merchantability, fitness
or a particular purpose and noninfringement with respect to any and
all of the foregoing.
17.7 Arbitration. Any disputes that may arise in connection with this
Agreement or its validity or interpretation shall exclusively and
finally be settled under the arbitration rules (hereinafter referred
to as the "Rules") of the International Chamber of Commerce, Paris,
by three (3) arbitrators appointed in accordance with the Rules. The
seat of arbitration shall be Zurich, Switzerland. The procedural law
of Zurich, Switzerland shall apply where the Rules are silent. The
language to be used in any such arbitration procedure shall be
English. The final ruling of the arbitrators in any such matter
shall be conclusive, binding and non-appealable, and may be enforced
by any court of competent jurisdiction.
Page-12
17.8 Force Majeure. Neither party hereto shall be responsible for any
failure to perform its obligations under this Agreement (other than
obligations to pay money or obligations under Section 9) if such
failure is caused by acts of God, war, strikes, revolutions, lack or
failure of transportation facilities, laws or governmental
regulations or other causes that are beyond the reasonable control of
such party. Obligations hereunder, however, shall in no event be
excused but shall be suspended only until the cessation of any cause
of such failure. In the event that such force majeure should
obstruct performance of this Agreement for more than six (6) months,
the parties hereto shall consult with each other to determine whether
this Agreement should be modified. The party facing an event of
force majeure shall use its best endeavors in order to remedy that
situation as well as to minimize its effects. A case of force
majeure shall be notified to the other party by telex or telefax
within five (5) days after its occurrence and shall be confirmed by a
letter.
17.9 Export Control. Each party shall comply with all applicable export
laws, restrictions, and regulations of any United States or foreign
agency or authority and will not export or re-export, or authorize
the export or re-export of any product, technology or information it
obtains or learns pursuant to this Agreement (or any direct product
thereof) in violation of any such laws, restrictions or regulations.
17.10 Severability. If any provision of this Agreement is held illegal,
invalid or unenforceable by a court of competent jurisdiction, that
provision will be limited or eliminated to the minimum extent
necessary so that this Agreement shall otherwise remain in full
force and effect and enforceable.
17.11 No Implied License. Each party recognizes that Licensor grants no
license, by implication or otherwise, to Licensee except for the
License expressly set forth in this Agreement.
IN WITNESS WHEREOF, the Parties hereto have caused this agreement to be
executed by their duly authorized representatives as of the day and year first
above written.
LICENSOR:
INFINEON TECHNOLOGIES AG
By: /S/ Xxxxxxx Xxxxxx /S/ Xxxxxx Xxxxxx
---------------------------- ------------------------------
Title: Director and General Manager Sr. V.P. and General Manager
Embedded and Graphics Memories
Address: Thomasiusplatz Address: Thomasiusplatz
D-81541 Munich X-00000 Xxxxxx
LICENSEE:
ENHANCED MEMORY SYSTEMS, INC.
By: /S/ L. Xxxxx Xxxxx
-------------------------
Title: President and CEO
Address: 0000 Xxxxxxx Xxxxx
Xxxxxxxx Xxxxxxx, XX 00000
Page-13
EXHIBIT A
TO
AGREEMENT
Product Roadmap
---------------
**
Page-14
EXHIBIT B
TO
AGREEMENT
Licensor DRAM Products for Technology Transfer
The Licensor DRAM Product to be provided by Infineon Technologies for each
technology in case of Technology Transfer will represent the respective
technology and will enable the Licensee Enhanced Memory System to design
Integrated Circuit Products for this technology. The representative DRAM
product will be selected separately for each technology by good faith
discussion between Licensor and Licensee and will be entrusted the Licensee
Enhanced Memory System with the documents as defined in Exhibit C.
Page-15
EXHIBIT C
TO
AGREEMENT
Documents
Product Description
Product design database (GDS-II database)
Design manual
Design rules
Spice models
Process overview information
Test mode implementation and use information
Test program and related specifications
Qualification reports for representative product and process
Specifications, documentation for representative product
Schematics (as available)
Page-16
AMENDMENT TO THE LICENSE AGREEMENT BETWEEN ENHANCED
MEMORY SYSTEMS INC. AND INFINEON TECHNOLOGIES AG
EMS agrees that Infineon may assign and transfer the Shares received under the
Agreement dated February 4, 2000 at any time and without prior consent of EMS
or any of EMS' shareholders to any of Infineon's Affiliates.
"Affiliate" shall mean any company directly or indirectly owned or controlled
by Infineon. Ownership or control shall exist through the direct or indirect
ownership of more than fifty (50) % of the nominal value of the issued equity
share capital or other voting ownership or equity interest of more than 50 % of
the participation giving entitlement to vote at the election of directors or
persons per-forming similar functi-ons, or the right by any other means to
elect or appoint directors or persons performing similar functions.
Enhanced Memory Systems Inc. Infineon Technologies AG:
By: /S/ L. Xxxxx Xxxxx By: /S/ Xxxxxxx Xxxxxx
-------------------------- ---------------------------
Title: President and CEO Title: Director and General Manager
Embedded and Graphics Memories
Address: 0000 Xxxxxxx Xxxxx Address: Thomasiusplatz
Xxxxxxxx Xxxxxxx, XX 00000 X-00000 Xxxxxx
Date: January 31, 2000 Date: February 4, 2000
By: /S/ Xxxxx X. Xxxxxxx By: /S/ Xxxxxx Xxxxxx
-------------------------- ---------------------------
Title: VP/General Manager Title: Sr. VP/General Manager
Address: 0000 Xxxxxxx Xxxxx Address: Thomasiusplatz
Xxxxxxxx Xxxxxxx, XX 00000 X-00000 Xxxxxx
Date: January 31, 2000 Date: February 4, 2000
Page-17
