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FOUNDRY VENTURE AGREEMENT
This Foundry Venture Agreement ("Foundry Venture Agreement")
is entered into as of September 29, 1995, by and between Cirrus
Logic, Inc., a corporation with its headquarters in California
("Cirrus") and United Microelectronics Corporation, a corporation
organized under the laws of the Republic of China ("UMC").
Cirrus understands that UMC is in discussions with others who
are interested in participating in FabVen. Cirrus agrees that UMC
may commit to such others (collectively referred to in this
Foundry Venture Agreement as "OtherVen") in such amounts as UMC
deems appropriate, subject to the commitments made to Cirrus
hereunder, and provided further that each OtherVen must commit in
writing to comply with and be bound by this Foundry Venture
Agreement as if specifically named as a Venturer herein.
Notwithstanding such OtherVen, Cirrus will be fully bound by and
is committed to the terms of this Foundry Venture Agreement.
Cirrus, OtherVen and UMC (collectively "the Venturers")
agree:
1. PURPOSE AND FORMATION OF VENTURE
1.1 Subject to the Technology Transfer and License Agreement and
the Foundry Capacity Agreement referred to in paragraphs 3 and 5
below (collectively, the "Venture Agreements"), the Venturers each
commit to form and invest in a corporation to be formed under the
laws of the Republic of China ("R.O.C.") for purposes of engaging
in the business of providing integrated circuit foundry services,
making and selling integrated circuits in wafer, die and packaged
form as generally described in the FabVen Business Plan referred
to in paragraph 1.4 below.
1.2 UMC will arrange the formalities of submission to the
Administration of the Science Based Industrial Park for approval
of and then for incorporation of the corporation contemplated
under this Foundry Venture Agreement, using a name mutually
agreeable to the Venturers (for purposes of this Foundry Venture
Agreement, the corporation contemplated under this Foundry Venture
Agreement shall be referred to as "FabVen."). All reasonable
expenses, up to a maximum of USD [*] (exclusive of fees to be paid
to the government), incurred by UMC pursuant to this paragraph 1.2
with respect to such incorporation shall be subject to
reimbursement by FabVen if the FabVen shares contemplated under
Paragraph 4 are not issued to UMC as described below.
1.3 Subject to the terms of the Venture Agreements, FabVen shall
engage in the business of foundry services, and develop and
improve processing and manufacturing techniques in order to
improve its competitiveness in the foundry area.
1.4 UMC will submit to the Science Based Industrial Park a
written business plan (the "FabVen Business Plan") for the
operations and for the capital structure and expenditures of
FabVen; this FabVen Business Plan is subject to approval by the
Administration of the Science Based Industrial Park; and, subject
to the conditions of confidentiality in Paragraph 9.7 below, will
be made available to the Venturers. As part of the FabVen
Business Plan, the Venturers contemplate FabVen will apply for
"tax holiday" and/or other favorable tax treatment under R.O.C.
law.
2. INITIAL OPERATIONS
2.1 The Venturers generally contemplate the Building and
Construction Schedule for FabVen as shown in Attachment A and the
Production and Business Schedule for FabVen as shown in Attachment
B.
2.2 Under mutually agreeable written terms to be negotiated
between UMC and FabVen, FabVen shall lease from UMC the land
generally described in Attachment C, and commonly known as UMC's
Module C, located at Xx. 0 Xx-Xxxx Xxxx Science Based Industrial
Park, Xxxx Xxx City, Taiwan, R.O.C.
(a) The Venturers contemplate that except as agreed by them
in writing, the terms of this lease will be at the market rate
which would be negotiated between a lessor and lessee dealing with
one another at arms length in the context of an independent lease
and not based on some other business relationship.
(b) Without limiting the foregoing, any and all services and
supplies (including without limitation power, water, gas and/or
materials) will not be part of such lease, and will be the subject
of such terms as may be negotiated by FabVen.
(c) The lease term for Module C will be for an initial
period of five years, and FabVen will have the right to extend the
lease for up to two additional five year periods under terms to be
stated in the lease agreement. FabVen will occupy the land for
this Module as its principal place of business, and will utilize
this land for its production facility.
2.3 The Venturers shall each cooperate to build out this land as
FabVen's production facility as quickly and efficiently as
commercially reasonable, provided however that this Paragraph 2.3
shall not impose any obligation to provide additional funding
beyond that expressly required under this Foundry Venture
Agreement.
3. TECHNOLOGY TRANSFER AND MANAGERIAL SUPPORT
Promptly after FabVen's formation, UMC and FabVen will enter
into a mutually agreeable Technology Transfer and License
Agreement pursuant to which UMC will transfer to FabVen for use in
FabVen facilities the Licensed Process (as defined in the
Technology Transfer and License Agreement) and related
manufacturing know-how. The execution of the Technology Transfer
and License Agreement is an essential aspect of the relationship
contemplated under this Foundry Venture Agreement.
4. INVESTMENT COMMITMENTS & STOCK PURCHASE AND SHAREHOLDER
AGREEMENTS & REPRESENTATION ON BOARD OF DIRECTORS
4.1 The Venturers will purchase shares in FabVen as follows:
(a) The total capital of FabVen shall be USD $1 Billion:
USD $600 million will be by investment in standard shares, and, as
may be approved by the FabVen board of directors, USD $400 million
(plus any other additional capital required) will be by way of
participation in UMC credit facilities and/or bank loans, and/or
will be by way of other debt and/or equity to the extent such
other debt and equity is approved in writing by each of the
Venturers. Notwithstanding anything to the contrary, (i) UMC
shall not be required to provide participation on behalf of FabVen
in UMC's credit facilities in any amount in excess of USD $400
million, and (ii) provided further that, to the extent demanded
by the lender and subject to the requirements of the law, UMC
shall guarantee such bank loans made directly to FabVen but only
so long as and to the extent that the total FabVen capital
financed by way of participation in credit facilities, bank loans,
debt and/or such other equity (excluding the investment stated in
the table of paragraph 4.1(b) below) is less than and/or equal to
USD $410 million.
(b) The Venturers will invest according to the following
table:
Standard share % $ investment represented by standard share (USD
millions)
Technical share %
Cirrus 15% $90M 0%
OtherVen TBD% $TBD 0%
UMC, UMC Affiliates* FabVen employees, UMC employees** & R.O.C.
financial institutions 40% $240M 15%
Total shareholding 85% $510M 15%
*For purposes of this Foundry Venture Agreement, "UMC Affiliates"
shall mean those entities: (i) nominated by UMC and approved by
the Venturers in writing, (ii) which UMC directly and/or
indirectly controls, and/or (iii) in which UMC directly or
indirectly owns a majority interest. **UMC employees who intend to
become (and who later become) regular employees of FabVen will be
among the FabVen shareholders pursuant to this table. The UMC
employees and the eligible FabVen employees shall be required to
pay the value shown in this table for their standard shares.
(c) The Venturers shall pay in cash for their standard
shares as follows:
(i) twenty-five percent (25%) to be paid in full on the
later of September 15, 1995, or when the appropriate
governmental approvals for the formation of FabVen have been
obtained; (ii) fifty percent (50%) to be paid in full on or
before the start of clean room construction; and (iii) the
remainder, twenty-five percent (25%), to be paid in full on or
before the start of fab production ramp-up.
(d) Subject to the requirements of law and pursuant to the
applicable statutory and regulatory rules, the standard shares of
the Venturers, of the UMC Affiliates, of the UMC employees, and of
the FabVen employees as shown in paragraph 4.1(b) above shall vest
upon payment for the shares involved; UMC's technical shares shall
vest upon completion of first silicon for any process licensed
from UMC having feature sizes of 0.35u or less; the shares of UMC
Affiliates (to the extent fully paid) shall be issued as UMC
requests; and the shares of UMC and UMC Affiliates shall be
transferrable amongst UMC and UMC Affiliates without the necessity
of FabVen's, Cirrus's, and/or OtherVen's prior written consent.
(e) The Venturers' shares shall be common stock, and, to the
fullest extent allowable under the law, will be registered in any
public offering by FabVen, provided that with respect to such
shares, each Venturer (and all UMC Affiliates holding such shares)
must follow and comply with all requirements of R.O.C. law and of
the Taiwan Securities and Exchange Commission and of the Taiwan
Securities Exchange, including, without limitation, with respect
to stand-still, lock-up, and/or other requirements.
(f) Until FabVen completes a successful offering of its
shares on a recognized securities exchange, the shares of the
Venturers (and of UMC Affiliates holding such shares) in FabVen
will not be transferable in any manner whatsoever except with the
written consent of the Venturers, provided however that any
Venturer may transfer its entire right, title and interest in
FabVen (including its proportionate right of first refusal for
foundry capacity, the "Foundry Rights") and other rights under the
Foundry Venture Agreement and/or Venture Agreements:
(i) once but only to the extent and only as part of a transfer of
all or substantially all of the assets, business and/or ownership
of that Venturer to a transferee subject, with respect to the
Foundry Rights, to the terms of paragraph 4.1(f)(iii) below;
and/or (ii) once to or between itself and any of its
subsidiaries in which, at the time of such transfer, the
transferring Venturer owns at least 50%. Notwithstanding
anything to the contrary:
(iii) the Foundry Rights when and if transferred pursuant to
Paragraph 4.1(f)(i) above shall only be exercisable with respect
to the manufacture of products which the transferring Venturer at
the time of such transfer was selling, was designing (as
reflected in contemporaneous documents) or was contemplating
designing and selling (as demonstrated in its then written
business plan(s)), and all future revisions and more highly
integrated versions of such products. (iv) if prior to the
completion of a public offering of FabVen securities on a
recognized securities exchange, any Venturer (or UMC Affiliate
holding such shares) wishes and/or attempts to transfer its
shares in FabVen (other than as allowed by Paragraph 4.1(f)(i)
and/or 4.1(f)(ii)) pursuant to any Court or other order or law,
or as a result of any nonconsensual action by any authority with
jurisdiction, the shares involved will be subject to a right of
first refusal as follows: (aa) the other Venturers
(the "eligible other Venturers") will have the right to
purchase the shares involved at their then fair market value as
determined by a mutually agreeable independent appraiser;
(bb) each such eligible other Venturer will have the
right to purchase such shares on a pro rata basis as
determined by the ratio of their respective shareholding
percentages (which, absent any previously permitted
transfers, would be as shown in the table in Paragraph
4.1(b) above); (cc) if any such eligible other
Venturer elects not to exercise any portion or all of such
right of first refusal within 30 days of the independent
appraisal, such portion of such right of first refusal will
be subject to exercise by the other eligible other Venturer, and
the shares involved will be subject to a right of such other
eligible other Venturer to purchase on the same terms as
outlined above; and (dd) if the other eligible other
Venturer does not commit to purchase such shares within 60
days of the independent appraisal, all rights under this Paragraph
4.1(f)(iv) will expire as to such unpurchased shares.
(g) Subject to the requirements of and to the extent
permissible under R.O.C. law, to the extent that FabVen wishes to
offer any equity beyond the USD $600 million referred to in
Paragraph 4.1(a) above, each Venturer shall have the right of
first refusal to participate in such offering in proportion to its
then current respective shareholding.
4.2 The parties shall in good faith after execution of this
Foundry Venture Agreement enter into negotiations regarding audit
and information rights to be provided to the Venturers, in order
to, among other things, make timely public disclosure of
information about FabVen's profits, losses, and/or other financial
information reasonably required, in the view of such Venturer's
counsel and accountants, to be disclosed separately, in
conjunction with, or consolidated into, such Venturer's public
quarterly, annual and/or other reports. Such rights shall at a
minimum be sufficient for such Venturers to timely comply with
their public reporting obligations, but shall not require FabVen
to pay for and/or incur the expenses of such matters. In the event
the parties do not reach agreement on such rights by December 15,
1995, the extent of such rights will be decided conclusively by
Price Waterhouse & Co. (Taipei office) and a nationally recognized
independent accounting firm nominated by Cirrus and OtherVen. If
the aforesaid accounting firms fail to decide such rights by
January 30, 1996, the matter shall be resolved by binding
arbitration on an expedited basis.
5. FOUNDRY CAPACITY & COMMITMENTS
Each Venturer's obligations under Paragraphs 1 to 5 of this
Foundry Venture Agreement shall be conditioned upon entry by the
Venturer into a Foundry Capacity Agreement with FabVen (the
"Foundry Capacity Agreement") and none of the obligations of the
Venturer or of FabVen under those sections shall be binding until
such time as it enters such a Foundry Capacity Agreement. The
terms of the Articles of Incorporation and Bylaws of FabVen shall
be consistent with the terms of this Foundry Venture Agreement,
and the Venture Agreements.
6. TERMINATION OF RIGHTS & PRIVILEGES
6.1 Subject to Paragraph 6.2 below, any one or more of the
Venturers and/or FabVen (collectively "the Parties") shall have
the right to terminate the rights of any other Party under this
Foundry Venture Agreement and/or the Venture Agreements by giving
written notice of termination to that other Party at any time upon
or after:
(a) the filing by the other Party of a petition in bankruptcy
or insolvency;
(b) any adjudication that the other Party is bankrupt or
insolvent;
(c) the filing by the other Party of any petition or answer
seeking reorganization, readjustment or arrangement of its
business under any law relating to bankruptcy or insolvency;
(d) the appointment of a receiver for all or substantially all
of the property of the other Party;
(e) the making by the other Party of any assignment for the
benefit of creditors; or,
(f) the institution of any proceeding for the liquidation or
winding up of the other Party's business or for the termination of
its corporate charter.
Notwithstanding anything to the contrary, no termination under
this Paragraph 6.1 as to such other Party shall affect the rights
of any other Venturer under this Foundry Venture Agreement and/or
the Venture Agreements.
6.2 (a) Termination pursuant to Paragraph 6.1 above shall be
effective immediately upon delivery of the written notice, or in
the case of airmail notice, four days after dispatch, pursuant to
Paragraph 8 below.
(b) Upon termination as to a Venturer under Paragraph 6.1
above, any shares held by that Venturer shall be subject to
purchase by the remaining Venturers pursuant to Paragraph
4.1(f)(iv) above.
(c) Except as permitted in paragraph 4.1(f), no Venturer may
transfer its interest or right in FabVen in any manner to any
competitor of UMC or to any entity in the business of fabricating
integrated circuits except under terms (i) in which such Venturer
first relinquishes and releases all rights to FabVen capacity
under this and any and all other agreements, and (ii) in which
such entity and/or competitor expressly consents in writing that
they have no such interest or right to such capacity.
6.3 FabVen will undertake its reasonable best efforts to implement
the Technology Road Map attached as Attachment B, and to achieve
the goals described in the FabVen Business Plan. In addition, and
subject to the terms of this Foundry Venture Agreement and the
Venture Agreements, FabVen will cooperate with each Venturer in a
commercially reasonable manner to qualify products of such
Venturer under the processes involved.
7. DISPUTE RESOLUTION
7.1 The Venturers and FabVen shall cooperate and attempt in
good faith to resolve any and all disputes arising out of and/or
relating to this Foundry Venture Agreement and/or any of the
Venture Agreements. Without limiting the foregoing, within thirty
days of a written demand to meet to resolve such a dispute, senior
management with the authority to negotiate and resolve the issues
shall meet in the State of Hawaii or in some other mutually
agreeable location to discuss the issues, from time to time during
the forty-five day period following such demand (or longer if
agreeable to the Venturers involved) as reasonably requested by
any party involved, and such senior management will attempt to
resolve the dispute.
7.2 Any such disputes relating to and/or arising out of this
Foundry Venture Agreement and/or any of the Venture Agreements
which cannot be so resolved will be decided exclusively by binding
arbitration under procedures which ensure efficient and speedy
resolution. Such an arbitration may be commenced by FabVen and/or
any Venturer involved in the dispute (i) after the expiration of
the forty-five day period following the written demand to meet to
resolve the dispute pursuant to Paragraph 7.1 above, and/or (ii)
at such earlier time as any Party involved repudiates and/or
refuses to continue with its obligations to negotiate in good
faith.
7.3 The arbitration hearing will be before a panel of three
neutral, independent arbitrators. The arbitration hearing will be
conducted in the State of Hawaii, and will be in the English
language (with translations and interpretations as reasonable for
the presentation of evidence and/or conduct of the arbitration).
Notwithstanding anything to the contrary, any party may apply to
any court of competent jurisdiction for interim injunctive relief
as may be allowed under applicable law with respect to irreparable
harm which cannot be avoided and/or compensated by such
arbitration proceedings, without breach of this Paragraph 7 and
without any abridgment of the powers of the arbitrators.
7.4 The arbitration will be conducted under the Rules of the Asia
Pacific Arbitration Center. Notwithstanding anything to the
contrary: (a) the arbitrators will have no power to order
discovery; and
(b) the arbitrators shall require pre-hearing exchange of
documentary evidence to be relied upon by each of the respective
parties in their respective cases in chief, and pre-hearing
exchange of briefs, witness lists and summaries of expected
testimony.
7.5 The arbitrators will make their decision in writing; and their
decision will be binding upon the Venturers and FabVen and it may
be entered by any court having jurisdiction.
8. NOTICES
All notices required or permitted to be given under this
Foundry Venture Agreement and/or any of the Venture Agreements
shall be in writing and be deemed as given when delivered, or in
the case of airmail, four days after dispatch, and shall be
addressed as follows and dispatched by personal delivery, by
airmail letter in any post office in the U.S. or in Taiwan, or by
facsimile:
If to Cirrus: Cirrus Logic, Inc. 0000 Xxxx Xxxxxx Xxx. Xxxxxxx,
XX 00000 Attention: President fax (000) 000-0000; fon (408)
249-4594 If to UMC: United Microelectronics Corporation Xx. 00
Xxxxxxxxxx Xxxx I Science Based Industrial Park Xxxx Xxx City,
Taiwan, R.O.C. Attention: Xxxx Xxxxx, President fax (035)
774-767; fon (035) 782-258 If to FabVen: FabVen Xx. 0
Xx-Xxxx Xxxx Science Based Industrial Park Xxxx Xxx City,
Taiwan, R.O.C. Attention: President fax (035)
; fon (035)
Any Venturer and/or FabVen may at any time give written notice of
a change of its address to the others.
9. MISCELLANEOUS
9.1 No Party shall be liable to the others with respect to the
failure or delay in the performance of any obligation under this
Foundry Venture Agreement and/or any of the Venture Agreements for
the time of and to the extent that such failure is caused by or
the result of war, fire, flood, earthquake, acts of god or any
causes beyond the reasonable control of the Venturers and/or
FabVen.
9.2 No Party shall be liable to the others (i) for any special,
incidental, indirect or consequential damages; (ii) for increased
costs of obtaining substitute goods or services to the extent such
increased costs are in excess of those amounts which such Party
would have been entitled to receive for the goods and services
involved had it properly performed; (iii) for loss of use,
opportunity, market potential, and/or profit, on any theory
(whether contract, tort, from third party claims or otherwise).
9.3 Except as expressly stated above and in Paragraphs 9.5 and/or
9.13 below and/or in the Venture Agreements, no Party makes any
warranties or representations (express, implied or statutory), and
there are no other warranties, representations, or indemnities,
and THE PARTIES EXPRESSLY DISCLAIM ALL SUCH OTHER WARRANTIES,
INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF
MERCHANTABILITY AND FITNESS FOR PARTICULAR PURPOSE. Without
limiting the foregoing, except as expressly stated in this Foundry
Venture Agreement and/or in any of the Venture Agreements (these
"Agreements"), there are no other representations and/or
warranties concerning the subject matter of such Agreements,
and/or relating to FabVen of any sort or manner, and each Party
expressly agrees that it is not relying upon any such other
representations and/or warranties. Each Party has consulted with
counsel concerning such Agreements and FabVen, and enters into
these Agreements with full advice and understanding and accepting
the risks involved.
9.4 Notwithstanding anything to the contrary (whether in the
Venture Agreements or elsewhere), nothing contained in this
Foundry Venture Agreement, in the Venture Agreements, and/or in
the FabVen Business Plan shall be or be construed as:
(a) a warranty or representation as to the validity, utility,
suitability or economic viability of this opportunity or of any
intellectual property or technology except as expressly stated in
paragraph 9.5 below, in Paragraph 9 of the Technology Transfer and
License Agreement, and/or in Paragraphs 5 and/or 7 of the Foundry
Capacity Agreement;
(b) a warranty or representation that any manufacture, sales,
use or other disposition of products to be manufactured by FabVen
will be free from infringement of patents, utility models and/or
design patents other than those under which licenses have been
granted hereunder and/or except as expressly stated in paragraph
9.5 below, and/or in Paragraph 7 of the Foundry Capacity
Agreement;
(c) a warranty or representation that FabVen will be
successful, that FabVen will realize and/or fulfill any of its
Business Plans, that FabVen will go public or return profit to the
Parties, or that the Parties will recover their investments (for
purposes of this Paragraph 9.4(c), any covenant or obligation in
these Agreements shall not be eliminated and/or excluded by reason
of it also being part of the FabVen Business Plan, nor shall this
Paragraph 9.4(c) absolve FabVen from efforts required under these
Agreements to implement the FabVen Business Plan);
(d) conferring any right to the other Parties to use in
advertising, publicity, or otherwise, any trademark, trade name or
names of any Party, or any contraction, abbreviation or simulation
thereof; and/or
(e) conferring by implication, estoppel or otherwise, upon
any Party any license or other right under any class or type of
patent, utility model or design patent except the licenses and
rights expressly granted under the Venture Agreements.
9.5 (a) Each Venturer represents and warrants to the other
Venturers and to FabVen that all technology, processes, masks and
other information transferred by that Venturer pursuant to the
terms of this Foundry Venture Agreement and/or the Venture
Agreements, and/or its respective foundry relationship with FabVen
shall be free from any claims of infringement or violation of
valid and enforceable trade secret, trademark, copyright, and/or
mask work rights of others; and that Venturer shall defend,
indemnify and hold the other Venturers and FabVen harmless from
and against any claims to the contrary, provided however that such
indemnifying Venturer shall receive (i) prompt written
notification of any claim for which it is providing
indemnification under this Paragraph 9.5, (ii) the right to
assume, in a prompt fashion, sole control of the defense or
settlement of such claim (provided that the indemnifying Venturer
cannot commit any other Venturer and/or FabVen to the payment of
sums), and (iii) reasonable assistance from the indemnified party
or parties, at the indemnifying Venturer's request and expense and
provided further that if the indemnifying Venturer assumes sole
control of the defense of such claim, the indemnified party may,
at its expense, participate in such defense.
(b) FabVen represents and warrants to the Venturers that
all technology, processes, masks and other information transferred
by it (in products or otherwise) or used by it in any process
employed in the fabrication of products pursuant to the terms of
this Foundry Venture Agreement and/or the Venture Agreements,
and/or under its respective foundry relationships with the
Venturers shall be free from any claims of infringement or
violation of valid and enforceable trade secret, trademark,
copyright, and/or mask work rights of others; and FabVen shall
defend, indemnify and hold the Venturers harmless from and against
any claims to the contrary, provided however that FabVen shall
receive (i) prompt written notification of any claim for which it
is providing indemnification under this Paragraph 9.5, (ii) the
right to assume, in a prompt fashion, sole control of the defense
or settlement of such claim (provided that FabVen cannot commit
any Venturer to the payment of sums), and (iii) reasonable
assistance from the indemnified party or parties, at FabVen's
request and expense, and provided further that if FabVen assumes
sole control of the defense of such claim, the indemnified party
may, at its expense, participate in such defense.
9.6 The obligations of the Parties under Paragraphs 1 to 5 above
shall be subject to and conditioned upon funding of FabVen by the
Venturers and upon approval of the formation of FabVen and of its
operation at Module C by all required governmental authorities,
including without limitation, the Science Based Industrial Park
Administration, but the obligations under the other Paragraphs of
this Agreement shall not be so conditioned. UMC shall cooperate
with FabVen in securing such approvals within the time
contemplated under the schedule of Attachment A. The obligations
and responsibilities of the Venturers and FabVen under Paragraphs
6 to 9 shall survive the expiration and/or termination of this
Foundry Venture Agreement.
9.7 (a) For purposes of these Agreements, "Confidential
Information" shall mean:
(i) any information disclosed by one party to another
pursuant to or in connection with these Agreements which is in
written, graphic, machine readable or other tangible form and
is marked confidential, proprietary, or in some other manner to
indicate its confidential nature; and (ii) any
information orally disclosed by one party to another pursuant to
or in connection with these Agreements provided that such
information is designated as confidential at the time of
disclosure and reduced to a writing delivered to the receiving
party within thirty days of the oral disclosure and detailing
the confidential information involved. (b) Each party
shall treat as confidential all Confidential Information provided
by any other party, shall not use or disclose such Confidential
Information except as contemplated in these Agreements and then
only subject to written confidentiality agreements at least as
protective as those stated in this Foundry Venture Agreement.
Without limiting the above, each party shall use at least the same
procedures and degree of care which it uses to prevent the
disclosure of its confidential information of like importance and
shall in no event use less than reasonable procedures and a
reasonable degree of care. Notwithstanding the above, no party
shall have obligations with respect to Confidential Information of
any other party which:
(i) Such party shows was generally known and available to the
public at the time it was disclosed, or becomes generally known
and available to the public through no fault of the receiver prior
to the use and or disclosure of such information by the receiver;
(ii) Such party shows was known to the receiver without
obligation of confidentiality at the time of disclosure as shown
by written evidence in existence at the time of disclosure;
(iii) Is disclosed with the prior written consent of the
discloser;
(iv) Such party shows becomes known to the receiver without
obligations of confidentiality; or
(v) Is disclosed pursuant to the order or requirement of any
court, agency, or other governmental body having jurisdiction;
provided, however, that, prior to any such disclosure pursuant to
paragraphs 9.7(b)(v) above, the Party seeking disclosure shall
notify the others and take all reasonable actions in an effort to
minimize the nature and extent of such disclosure.
(c) Each party agrees that the terms of these Agreements and
the FabVen Business Plan shall be treated as Confidential
Information and not disclosed, provided however that any and all
parties may disclose the terms and conditions of these Agreements
and the FabVen Business Plan in confidence to its legal counsel,
accountants, banks, and financing sources and their advisers, or
pursuant to written confidentiality agreements having terms at
least as restrictive as those this Paragraph 9.7 in connection
with an actual or proposed merger or acquisition, and/or in
connection with the enforcement of its rights under this Foundry
Venture Agreement
(d) Notwithstanding anything to the contrary, and subject to
the exceptions of Paragraph 9.7(b): (i) any Confidential
Information disclosed to UMC by a Venturer which is marked "UMC
only" (or similarly) may be used and disclosed by UMC solely in
connection with preparing and submitting the FabVen Business Plan
and applications for governmental approvals relating to FabVen
but may not otherwise be disclosed by UMC to FabVen or to any
other Venturer; (ii) any Confidential Information disclosed to
UMC and/or to FabVen which is marked as "FabVen Internal Only"
may be disclosed by UMC to FabVen, but may not be disclosed by
FabVen to any other Venturer; and (iii) any Confidential
Information disclosed to a Venturer which is not marked "UMC
Only" and/or "FabVen Internal Only" (or similarly) may be
disclosed to FabVen and/or to any Venturer. (e) Without
limiting the foregoing, in order to facilitate exchanges of
Confidential Information amongst themselves, the Venturers
contemplate they may negotiate and execute one or more mutually
satisfactory non-disclosure agreements.
(f) The obligations of this Paragraph 9.7 shall survive the
expiration or termination of this Foundry Venture Agreement and
the Venture Agreements for a period of three (3) years after the
last of them to expire and/or terminate. In the event of any
breach of this covenant, the Venturers and FabVen shall promptly
discuss and cooperate in good faith with respect to measures to
mitigate any harmful effect of such breach and with respect to
possible compensation to the injured party.
9.8 This Foundry Venture Agreement and the Venture Agreements are
written only in the English language, which language shall be
controlling in all respects, and all versions in any other
language shall be for accommodation only and shall not be binding
upon the Venturers. All communications to be made or given
pursuant to such Agreements shall be in the English language,
except as may be required under applicable law.
9.9 This Foundry Venture Agreement and the Foundry Capacity
Agreement and matters connected with performance under any one or
more of them shall be interpreted and construed in all respects in
accordance with the laws of the State of California, provided
however that all matters connected with the purchase and
formalities of stock and ownership interests in FabVen and the
Technology Transfer and License Agreement shall be interpreted and
construed in all respects in accordance with the laws of Taiwan,
the Republic of China, all without regard to that body of law
which pertains to conflicts and/or choice of law and excluding the
UN Convention on Contracts for International Sales of Goods.
9.10 If any provision of this Foundry Venture Agreement and/or
the Venture Agreements is held wholly or partially unenforceable
for any reason, such unenforceability shall not affect the
enforceability of the remaining provisions of such Agreements, and
all provisions of such Agreements shall be construed so as to
preserve enforceability.
9.11 (a) The terms and conditions contained in the FabVen
Business Plan, this Foundry Venture Agreement and/or the Venture
Agreements and the documents attached thereto (the "Plan and
Agreements") shall supersede all previous communications,
understandings, representations and/or agreements, oral and/or
written, between the Venturers with respect to the subject matter
hereof;
(b) There are no other such agreements, understandings and/or
writings except as stated above;
(c) No agreement or understanding varying, modifying or
extending the terms and/or conditions of such Plan and Agreements,
nor any custom, practice, course of dealing or conduct of the
parties, shall be binding upon any Venturer unless in writing and
signed by a duly authorized officer or representative of each
Party to be bound; provided however that a Venturer and FabVen may
agree to ordering procedures which are established by them
pursuant to mutual agreement; and
(d) Except as expressly allowed under this Foundry Venture
Agreement, no party may transfer or assign its rights or delegate
its duties under this Agreement, except with the written consent
of all the Parties to the agreement involved.
9.12 No licenses, other than the licenses expressly granted
under these Agreements, are granted under these Agreements, by
implication, estoppel or otherwise. Nothing in these Agreements
shall be construed as conferring any license, right to use or
other right with respect to any trademark or trade name of any
party. Each party may make reasonable reference by name to any
other party provided that the written consent of that other has
been obtained in advance.
9.13 (a) The failure of any party to enforce, or the delay
by any party in enforcing any of its rights under these Agreements
shall not be deemed a waiver or a containing waiver of such rights
or a modification of these Agreements, and such party may, within
the time provided by applicable law, commence appropriate
proceedings to enforce any and/or all such rights.
(b) The section headings in these Agreements are for
convenience only and do not define or limit nor shall they be used
to construe the content of such sections.
(c) Each party expressly represents and warrants that it is
free to enter into these Agreements and that such party has not
made and will not make any creations or commitments in conflict
with the provisions of these Agreements, or which reasonably might
interfere with the full and complete performance of such party's
obligations under these Agreements. Each party further represents
and warrants that these Agreements, and the performance of its
respective obligations under these Agreements, and the
consummation of the transactions contemplated under these
Agreements have been duly authorized and approved by all necessary
action, and all necessary consents or permits have been obtained,
and neither the execution of these Agreements nor the performance
of the party's respective obligations under these agreements will
violate any term or provision of any valid contract or agreement
to which such party is subject and/or by which such party is
bound. No further actions or consents are necessary to make these
Agreements valid binding contracts, enforceable against the
respective parties in accordance with their terms.
9.14 Nothing in this Foundry Venture Agreement and/or in the
Venture Agreements shall be deemed to create a general or limited
partnership or an agency relationship between the Venturers and/or
FabVen, and the Venturers and FabVen are independent companies.
The Venturers intend to become shareholders of FabVen and
thereafter purchase products manufactured from FabVen in an arm's
length vendor-purchaser relationship, and, in the case of FabVen
and UMC, in an arm's length vendor-purchaser, lessor-lessee, and
licensor-licensee relationship. No party shall be entitled to act
on behalf of and/or to bind any one or more of the others.
9.15 The Venturers will cause FabVen to execute promptly after
its formation the Foundry Capacity Agreement, Technology Transfer
and License Agreement, and this Foundry Venture Agreement, to
confirm FabVen's agreement to abide by the terms in such
agreements which are binding upon FabVen.
IN WITNESS WHEREOF, the Venturers have caused this Foundry Venture
Agreement to be signed below by their respective duly authorized
officers.
Cirrus Logic, Inc.
_____/s/ Xxxxxxx Hackworth__________ Xxxxxxx Xxxxxxxxx, President
UNITED MICROELECTRONICS CORPORATION
_____/s/ Xxxx Hsuan__________________ Xxxx Xxxxx, President
ACCORDING TO SECTION 232.304 OF REGULATION S-T, THE FOLLOWING
NARRATIVE DESCRIPTIONS REPRESENT A GOOD-FAITH EFFORT TO FAIRLY AND
ACCURATELY DESCRIBE THE FOUR GRAPHICAL IMAGES ATTACHED TO THE
PAPER FORMAT OF THIS AGREEMENT:
"JV FAB BUILDING-UP SCHEDULE" This graphical image represents the
project schedule for building up the new fabrication facility and
for producing wafers from this facility. The time-line
represented in the graphical image begins at August 1995 and ends
at December 1997. The milestones represented on this graphical
image are the following: "Establish Company," "The New Fab
Building Construction, "Facility Installation," "Clean Room
Installation," "Equipment Ordering," "Equipment Installation,"
"Pilot Wafer Start," and "Production Ramp-up Start." The
time-lines for each milestone are confidential information for
which Confidential Treatment has been requested. Confidential
portions omitted have been filed with the Commission.
"PRODUCTION RAMP-UP SCHEDULE" This line graph represents the
projected wafer output versus time for the new venture. The
abscissa of the line graph represents time, beginning at July 1997
and ending at January 2000. The ordinate of the line graph
represents wafer output of the new venture. Therefore, the line
graph represents the projected wafer output of the new venture
versus time. The values on the ordinate are confidential
information for which Confidential Treatment has been requested.
The values of the line graph also are confidential information for
which Confidential Treatment has been requested. Confidential
portions omitted have been filed with the Commission.
"TECHNOLOGY ROAD MAP" This graphical image represents the project
schedule for decreasing the production line-widths of the new
fabrication facility. The time-line represented in the graphical
image begins at the first quarter of 1997 and ends at the fourth
quarter of 1998. The major milestones represented on this
graphical image are the following: "0.4 to 0.5 micrometers,"
"0.35 micrometers," and "0.25 to 0.3 micrometers." The minor
milestones under each major milestone represent different process
technologies projected for each line-width under the new venture;
and each is confidential information for which Confidential
Treatment has been requested. The time-lines for each milestone
are also confidential information for which Confidential Treatment
has been requested. Confidential portions omitted have been filed
with the Commission.
"FABRICATION FACILITY LAYOUT" This graphical image represents the
plat of the research park in which the new fabrication facility is
located. The plat is written in Chinese. In English, the plat
shows the location of Modules C and D with respect to two major
roads and with respect to each other.
