Exhibit 10.49
LICENSE AGREEMENT
This License Agreement ("Agreement") effective as of 02/10/2000
("Effective Date"), is made by and between LSI Logic Corporation, a Delaware
corporation ("LSI"), and ChipPac Limited, a corporation established pursuant to
the laws of British Virgin Islands ("ChipPac") (each of whom is individually
sometimes referred to as a "Party") and both of whom are collectively sometimes
referred to as "Parties).
RECITALS
This Agreement is made with reference to the following facts and
circumstances:
A. Whereas LSI wishes to license to ChipPac certain Packaging
Technology (as defined below) pertaining to chip scale packages ("CSP," as
defined below), and ChipPac wishes to obtain such a license, according to the
terms and conditions set forth herein.
AGREEMENT
NOW, THEREFORE, in consideration of the foregoing recitals and the
terms, covenants and conditions contained herein, and for other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the Parties agree as follows:
1. DEFINITIONS AND RULES OF CONSTRUCTION
DEFINITIONS. In addition to the terms defined elsewhere in this
Agreement, the following words and expressions shall have the meanings set forth
below:
1.1 "Affiliate" of a Party means, any corporation, limited liability
company, partnership or other business enterprise:
(a) which owns or controls, directly or indirectly, fifty percent
(50%) or more of the voting rights with respect to the
election of directors or managers, or which has practical
control directly or indirectly, of any Party to this
Agreement;
(b) of which fifty percent (50%) or more of the voting rights
with respect to the election of directors or managers is
owned or controlled, directly or indirectly, by, or which is
under the practical control directly or indirectly of, any
Party to this Agreement; or
(c) of which fifty percent (50%) or more of the total voting
rights with respect to the election of directors or managers
is owned or controlled, directly or indirectly, by, or which
is under the practical control directly or indirectly of, any
corporation, limited liability company, partnership or other
business enterprise qualifying under subsections (a) or (b)
above.
Any corporation, limited liability company, partnership or other business
enterprise which would at any time an Affiliate of LSI or ChipPac by reason of
the foregoing, shall be considered an Affiliate for purposes of this Agreement
only for so long as the foregoing conditions are met.
1.2 "Applicable Improvements" means any Improvements which are
invented, developed, discovered or otherwise acquired by LSI before one year
from "Initial Qualification", the first date that LSI qualifies ChipPac as a CSP
supplier.
1.3 "ChipPac Improvements means any Improvements associated with CSP's
licensed to ChipPac by LSI which are invented, developed, discovered by ChipPac
before one year from "Initial Qualification", the first date that LSI qualifies
ChipPac as a CSP supplier.
1.4 "Initial Qualification" refers to the first date that LSI qualifies
ChipPac as a CSP supplier.
1.5 "Confidential Information" means (i) the Technical Information, in
whatever form embodied; and (ii) information disclosed by either party, if
disclosed in writing, that is identified and marked as confidential (or with
words of similar import) at the time of its disclosure or which, if disclosed
verbally, is designated confidential at the time of disclosure and is summarized
and identified as confidential in a writing delivered to the receiving party on
or before thirty (30) days after the disclosure; provided that Confidential
Information shall in no event include any information that: (a) was known to the
receiving party prior to its receipt hereunder; (b) is or becomes publicly
available without breach of this Agreement; (c) is received from another without
obligation of confidentiality to the disclosing party and without breach of this
Agreement; or (d) is disclosed by the disclosing party to anther without an
obligation of confidentiality.
1.6 "CSP" means a semiconductor device assembly ("package")
characterized by having all of the following elements: (i) a substrate with a
top surface and a bottom surface; (ii) a semiconductor die with an active
surface and an opposing back side surface, the back side surface of the die
being mounted to the top surface of the subtract, (iii) wire bonds electrically
connecting the active surface of the semiconductor die to the top surface of the
substrate; (iv) the bottom surface of the substrate having solder balls attached
in a 0.8 mm pitch array; (v) the overall height of the assembled package being
less than 1.2 mm.
1.7 "Improvements" means all developments, enhancements, modifications
or betterments that may be made in the Packaging Technology or Technical
Information, or that is otherwise useful with respect to the manufacture or
design of a CSP, whether or not patented, patentable, copyrighted or
copyrightable.
1.8 "Intellectual Property Rights" means (a) all Patent Rights; (b) all
copyrights and all other literary property and author rights, and all rights,
title and interest in and to all copyrights, copyright registrations
certificates of copyrights and copyrighted interests; and (c) all rights, title
and interest in and to all trade secrets and trade secret rights.
1.9 "LSI's Intellectual Property Rights" means: (i) all copyright and
trade secret rights owned by LSI that (or licensed to LSI with the right to
grant sublicenses thereunder without payment of royalties to any third party),
absent the license herein, would be necessarily
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and unavoidably infringed or misappropriated by the exploitation (as permitted
herein) of the Technical Information; and (ii) all patents that issue from the
applications listed in Exhibit B, including any reissue, division, term
extension, continuation or continuation-in-part (to the extent the claims of
such continuation in part are supported by a specification of an application
listed in Exhibit B) of any such applications.
1.10 "Packaging Technology" means LSI's technology for use in packaging
integrated circuits as described in the Technical Information.
1.11 "Patent Rights" means any patent rights, letters patent and
applications for letters patent, or other government-issued or granted indicia
of invention ownership, including any reissue, division, term extension,
continuation or continuation-in-part.
1.12 "Technical Information" means the materials described in Exhibit A.
2. LICENSE AND TECHNOLOGY TRANSFER
2.1 License Grant. Subject to the terms and conditions of this
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Agreement, LSI agrees to grant and does hereby grant to ChipPac, a personal,
non-exclusive, non-transferable right and license (with the right to grant
sublicenses to the manufacturing companies that are ChipPac Affiliates according
to the terms of Section 2.3) under LSI's Intellectual Property Rights to use the
Packaging Technology and the Technical Information and Applicable Improvements
for the purposes of manufacturing, using, selling and importing CSPs worldwide.
2.2 No Sublicenses; No Rights in Trade Marks; No Implied Licenses. The
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license granted pursuant to Section 2.1 shall not be sublicensed by ChipPac
(other than to its Affiliates according to the terms of Section 2.3) and will
convey no right to ChipPac to use or register any trademarks, service marks, or
trade names of LSI or of its Affiliates. Nothing herein shall be construed as
committing LSI to convey to ChipPac either expressly or by implication, any
right under any letters patent or other Intellectual Property Rights of LSI, or
any right to use any Technical Information, except as explicitly set forth in
Section 2.1
2.3 Have Made Rights Excluded. "Have-made" rights are not included in
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the license granted under Section 2.1. Accordingly, ChipPac shall not have the
right to have CSPs made for it by a third party at a third party's manufacturing
facility or elsewhere without the prior written approval of LSI, which approval
LSI may withhold in its sole and absolute discretion. Notwithstanding the
foregoing, this provision shall not preclude any ChipPac Affiliate (e.g., CPK,
CPS, CPI) from manufacturing CSP's according to the license set forth in Section
2.1, provided that each such Affiliate agrees in writing to terms and conditions
no less protective of LSI than those set forth in this Agreement. ChipPac shall
be fully liable to LSI for any breach by any such Affiliate of such terms and
conditions.
2.4 Marking. ChipPac shall comply with all pertinent patent marking
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statutes with respect to any patents that are part of LSI's Intellectual
Property, provided that LSI provides adequate information to ChipPac to enable
ChipPac to comply with such statutes.
2.5 Ownership. As between the Parties, LSI shall retain ownership of
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the Packaging Technology, Technical Information, and all of LSI's Intellectual
Property Rights.
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3. IMPROVEMENTS
ChipPac hereby grants LSI a non-exclusive, fully paid-up, royalty-free,
perpetual, irrevocable, worldwide license under all pertinent Intellectual
Property Rights in and to ChipPac Improvements to make, have made, use and sell
packaging for semiconductor products, with the right to grant sublicenses
therefore to any one or more of LSI's Affiliates and to persons that do not
compete with ChipPac or its Affiliates. Upon LSI's request, ChipPac will provide
LSI with all pertinent know-how regarding any "ChipPac Improvements."
4. TECHNOLOGY TRANSFER
On or before February 15, 2000, LSI will provide ChipPac the Technical
Information. LSI will provide a reasonable amount of technical support, not to
exceed 320 man hours, to assist ChipPac or a ChipPac Affiliate with implementing
the Technical Information. ChipPac shall bear all out of pocket expenses LSI
incurs in connection with such technical support.
4.1 Fees. In consideration of the right and license to use the
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Packaging Technology and the associated Technical Information grants in Section
2.1, ChipPac shall pay to LSI U.S. [redacted *] according to the schedule set
forth in Exhibit C. Payments shall be non-refundable.
4.2 Interest on Late Payments. Any payment not received by LSI in
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immediately available funds by the fifth (5th) business day following any date
by which such payment is due shall bear interest from such due date until paid
in full by ChipPac to LSI at the annual rate equal to the prime rate (as
reported by the Wall Street Journal on the date that the payment was first due);
provided, however, that in no event shall such interest rate exceed the highest
rate permissible under applicable law.
4.3 Taxes. All taxes imposed as a result of any payments made pursuant
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to this Article 4.1 shall be paid by the Party required to do so by applicable
law; provided, however, that if so required by applicable law and any relevant
tax treaty, ChipPac shall (i) withhold the amount of any national or federal
income taxes levied by the government in question, on the payments to be made
pursuant to this Article 4.1, and (ii) promptly effect payment thereof to the
appropriate taxing authorities; and (iii) transmit to LSI officials tax receipts
or other evidence issued by said appropriate taxing authorities sufficient to
enable LSI to support a claim for the appropriate income tax credit in respect
of any such taxes so withheld and paid to the governments in question.
4.4 Verification. ChipPac shall provide LSI with reasonable access to
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ChipPac's facilities and applicable records to reasonably enable LSI to
determine if any of the events set forth in Exhibit C have occurred.
5. WARRANTIES AND REPRESENTATIONS
5.1 General Warranties and Representations. Each Party warrants and
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represents to, and covenants with, the other Party that all corporate action
necessary for the authorization, execution and delivery of this Agreement by
such Party and the performance of its obligations hereunder has been taken.
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* Confidential treatment requested.
5.2 Disclaimer. EXCEPT AS OTHERWISE PROVIDED IN SECTION 5.3, LSI
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DISCLAIMS ANY AND ALL EXPRESS WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY
IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR
NONINFRINGEMENT, PERTAINING TO THE PACKAGING TECHNOLOGY, TECHNICAL INFORMATION,
OR ANY OTHER TECHNOLOGY PROVIDED BY LSI HEREUNDER. Without limiting the
foregoing, nothing in this Agreement shall be deemed to be a warranty or
representation, either express or implied, that: (i) LSI or its Affiliates will
continue to develop the Packaging Technology; and (ii) that LSI will enforce
LSI's Intellectual Property Rights against any third party. LSI shall have no
liability whatsoever to ChipPac in the event that ChipPac is unable to
successfully implement the Packaging Technology.
5.3 Limited Intellectual Property Warranties. LSI warrants and
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represents to ChipPac that as of the Effective Date for the Packaging
Technology, (i) the Packaging Technology and the associated Technical
Information do not impermissibly include any trade secrets or copyrighted
material of any third party; and (ii) no third party has notified LSI that the
Packaging Technology infringes its patents. To the extent LSI owns a patent that
is part of LSI's Intellectual Property Rights, LSI has the right to license such
patent pursuant to this Agreement. ChipPac warrants and represents to LSI that
any and all ChipPac Improvements provided by ChipPac to LSI will not
impermissibly include any trade secrets or copyrighted material of any third
party.
6. LIMITATION ON DAMAGES
NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR
CONSEQUENTIAL LOSS OR DAMAGE (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS AND
LOSS OF USE) SUFFERED BY THE OTHER PARTY ARISING FROM OR RELATING TO THE
PERFORMANCE, NON-PERFORMANCE, BREACH OF OR DEFAULT UNDER A COVENANT, WARRANTY,
REPRESENTATION, TERM OR CONDITION OF THIS AGREEMENT, PROVIDED THAT THE FOREGOING
SHALL NOT APPLY TO ANY BREACH BY CHIPPAC OF THE LICENSE GRANTED HEREIN OR THE
IMPROPER USE OR DISCLOSURE BY CHIPPAC OR ITS AFFILIATES OF THE PACKAGING
TECHNOLOGY TECHNICAL INFORMATION, AND/OR APPLICABLE IMPROVEMENTS. LSI'S
AGGREGATE LIABILITY ARISING FROM OR RELATING TO LSI'S PERFORMANCE,
NON-PERFORMANCE, BREACH OF OR DEFAULT UNDER A COVENANT, WARRANTY,
REPRESENTATION, TERM OR CONDITION OF THIS AGREEMENT, SHALL NOT EXCEED THE
PAYMENTS IT HAS RECEIVED FROM CHIPPAC HEREUNDER. EXCEPT AS EXPLICITLY SET FORTH
ABOVE, THE LIMITATIONS ON LIABILITY AND DAMAGES SET FORTH ABOVE APPLY TO ALL
CAUSES OF ACTION THAT MAY BE ASSERTED HEREUNDER, WHETHER SOUNDING IN BREACH OF
CONTRACT, BREACH OF WARRANTY, TORT, PRODUCT LIABILITY, NEGLIGENCE OR OTHERWISE.
IN NO EVENT SHALL LSI BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE
TECHNOLOGY.
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7. THIRD PARTY CLAIMS
7.1 Intellectual Property Rights. Subject to (a) the limitations set forth
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in Article 6 and in this Article 7, each Party ("Defending Party") shall defend
and settle any claim, demand, cause of action, loss, damage, liability, fine,
penalty, cost or expense (each, a "Claim") brought against the other Party
("Defended Party") arising our of a breach of the Defending Party's warranties
and representations set forth in Section 5.3 and pay all damages to the extent
attributable to such breach that are awarded pursuant to such Claims. As a
condition of the Defending Party's obligations set forth in the preceding
sentence, the Defended Party shall give the Defending Party prompt written
notice of any such Claims as described in the first sentence of this Section,
full authority to defend and settle such Claims and all reasonable assistance to
the Defending Party (at the Defending Party's expense) as may be requested by
Defending Party. If, as a result of a Claim for which LSI is the Defending
Party, ChipPac becomes enjoined from using the Packaging Technology or if LSI
reasonably believes such a Claim may be initiated: (a) LSI shall (i) procure for
ChipPac the right to use the Packaging Technology; (ii) provide ChipPac with
replacement technology (which shall become Packaging Technology) that is
non-infringing that is a reasonable substitute for the infringing Packaging
Technology; or (iii) if neither (i) nor (ii) is commercially feasible, terminate
ChipPac's license hereunder and if such termination occurs within eight years
from the Effective Date, refund a fraction of all payments made under Article 5,
the numerator of the fraction equal to the number of days between the date of
such termination and the date that is eight years from the Effective Date, the
denominator equal to eight (8) years. In cases (ii) and (iii) above, ChipPac
will immediately cease using the Packaging Technology in question upon receiving
written notice from LSI. In the case where ChipPac is the Defending Party, the
Defended Party shall include LSI's Affiliates. THIS SECTION STATES THE ENTIRE
LIABILITY OF EACH PARTY AND THE EXCLUSIVE REMEDY OF EACH PARTY WITH RESPECT TO
INFRINGEMENT. EXCEPT AS EXPRESSLY STATED IN THIS SECTION 7.1, ALL WARRANTIES
AGAINST INFRINGEMENT OF ANY INTELLECTUAL PROPERTY RIGHTS, STATUTORY, EXPRESS OR
IMPLIED ARE HEREBY DISCLAIMED.
7.2 Exclusions. LSI shall have no obligation under Section 7.1 arising out
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of or relating to the continued use of any infringing technology after LSI has
provided ChipPac with written notice pursuant to Section 7.1 to cease such use.
Furthermore, ChipPac will defend and indemnify LSI from and against any
liability, damages, cost or expense (including attorney's fees) arising out of
any such Claim asserted against LSI arising out of or relating to any act or
condition described in the preceding sentence; provided, however, that such duty
of indemnity shall be conditioned upon LSI giving ChipPac prompt written notice
of any such Claims, full authority to defend and settle such Claims and all
reasonable assistance to ChipPac (at ChipPac's expense) as may be requested by
ChipPac.
7.3 Notice. Each Party ("Notifying Party") shall provided the other Party
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("Notified Party") with written notice promptly after learning of any
allegations that the Notifying Party's use or exploitation of any technology
provided by the Notified Party hereunder infringes or misappropriates any third
party's Intellectual Property Rights. To the extent that any Claims arising our
of such allegations do not arise out of the Notified Party's warranties pursuant
to Section 5.3, the Notified Party shall have the right, but not the obligation,
to assist in the defense of any such Claims. If LSI is the Notified Party, LSI
will (i) provide ChipPac with all pertinent
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information regarding LSI's creation of the Packaging Technology and (iii) make
the pertinent LSI employees available to ChipPac to assist ChipPac (and its
attorneys) with interpreting and verifying such information.
7.4 High Risk Activities: Indemnity. The Packaging Technology is not
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intended to create packaging for products that will be used in medical or
aviation activities or in other high risk activities.
8. ENFORCEMENT
ChipPac shall not have the right to enforce any of LSI's Intellectual
Property Rights. In the event that ChipPac learns that any third party is
infringing or misappropriating any of LSI's Intellectual Property Rights,
ChipPac shall promptly thereafter provide LSI with written notice regarding such
infringement or misappropriation.
9. TERM; DEFAULT AND TERMINATION; EFFECT OF TERMINATION
9.1 Term. Unless sooner terminated pursuant to the early termination
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provisions hereof, this Agreement shall be effective upon the Effective Date and
shall continue in effect unless earlier terminated as described below.
9.2 Termination for Default. If either Party defaults on a material
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provision and does not cure such default within forty-five (45) days after
written notice thereof is received from the other Party, such other Party shall
have the right at its option to terminate the Agreement.
9.3 Insolvency. Should either Party: (a) become insolvent; (b) make an
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assignment for the benefit of creditors; (c) file or have filed against it a
petition in bankruptcy or seeking reorganization; (d) have a receiver appointed;
or (e) institute any proceedings for liquidation or winding up; then the other
Party may, in addition to other rights and remedies it may have, terminate the
Agreement or any purchase orders placed under the Agreement immediately by
written notice.
9.4 Breach of Confidentiality. The Parties stipulate that the arbitration
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provisions of Section 12.11 shall not apply to any temporary restraining order,
injunctive relief, protective order or other provisional remedy sought to
prohibit a breach or threatened breach of the provisions of Section 11.1.
9.5 Rights and Remedies; Termination of Certain Provisions. The
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termination of this Agreement shall be without prejudice to (a) the right of LSI
to receive upon its request all payments accrued and unpaid hereunder; (b) the
rights and remedies of any Party with respect to the current or any previous
breach of any other representations, warranties, covenants, terms, conditions or
provisions of this Agreement (provided that the limitation on liability set
forth in Article 6 shall apply to such rights and remedies); (c) any rights to
indemnification set forth herein; (d) unless this Agreement is terminated due to
LSI's material breach, the grant-back license from ChipPac to LSI in ChipPac's
improvements under Article 3; and (e) any other provisions hereof which
expressly or necessarily call for performance after the termination of this
Agreement.
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9.6 Termination of ChipPac's Rights Upon Default. Immediately upon and
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after termination (by either Party) of this Agreement, ChipPac shall (a) cease
making, marketing, using and selling of SCPs covered by this Agreement; (b)
cease its use of any and all Packaging Technology and Technical Information
provided throughout this license; and (c) return to LSI all media containing
Technical Information and copies thereof and all other materials and date of
ChipPac which contains or are based on the Process Technologies.
10. ADDITIONAL BANKRUPTCY PROVISIONS
10.1 Generally. This is a contract under which applicable law excuses LSI
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from accepting performance from or rendering performance to ChipPac within the
meaning of sections 365(c) and 365(e)(2) of the Bankruptcy Code, 11 U.S.C. Secs.
365 (c), 365(e)(2). Accordingly, in the event of ChipPac's bankruptcy, this
Agreement cannot be assumed or assigned without LSI's express written consent.
10.2 Assumption. In the event LSI consents to assumption and assignment of
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this Agreement, any person or entity to which this Agreement is assigned
pursuant to the provisions of the Bankruptcy Code, 11 U.S.C. Section 101 et
seq., shall be deemed without further act or deed to have assumed all of the
obligations arising under this Agreement on and after the date of such
assignment. Any such assignee shall upon demand execute and deliver to LSI an
instrument confirming such assumption.
10.3 Lifting of Stay. In the event that ChipPac is the subject of any
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insolvency, bankruptcy, reorganization, or similar proceeding under the United
States Bankruptcy Code, voluntarily or involuntarily, the Parties stipulate that
LSI is entitled to the automatic and absolute lifting of the automatic stay as
to the enforcement of its remedies under this Agreement, including specifically
but not limited to the stay imposed by 11 U.S.C. Section 362, as amended;
ChipPac hereby consents to the immediate lifting of any such automatic stay, and
will not contest any action by LSI to lift such stay; ChipPac expressly
acknowledges that it has no equity in the license and rights granted under this
Agreement.
11. CONFIDENTIALITY
11.1 Obligation. Each Party agrees to maintain in confidence the other
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Party's Confidential Information. Neither Party shall disclose the other Party's
Confidential Information to any other person or organization without the prior
written consent of the other Party. Each Party shall protect such information
from disclosure to others with at least the same degree of case as such Party
exercises to protect its own information of similar type and importance provided
that the degree of care exercised with respect to Confidential Information that
is Technical Information shall in no event be less than a high degree of care.
Each Party shall disclose the other Party's Confidential Information only to
those employees of the receiving Party that have a need to know such
information. Neither Party shall use the other Party's Confidential Information
except as expressly permitted in this Agreement. The obligations of
confidentiality and protection required by this section shall survive the
expiration, termination or cancellation of this Agreement for a period of five
(5) years, provided that the obligations with respect to Confidential
Information that is Technical Information shall survive in perpetuity.
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11.2 Third Party Request for Information. Except as otherwise provided in
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this Agreement, either Party shall immediately notify the other Party of any
private or governmental request for secret or confidential information
(including, without limitation, Confidential Information) or any other
information or documents relating to this Agreement. Each Party shall have the
right to participate in any other Party's response to any such request. In the
event that a Party receives any subpoena or other legal process requiring the
production of information, documents, data, work papers, reports, or other
materials relating to any secret or confidential information (including, without
limitation, Confidential Information) or to this Agreement, that party shall:
(a) give the other Party, if possible, the opportunity to participate
in quashing, modifying or otherwise responding to any compulsory
process in an appropriate and timely manner; and
(b) cooperate fully with the other Party's efforts to narrow the
scope of any such compulsory process, to obtain a protective
order limiting the use or disclosure of the information sought,
or in any other lawful way to obtain continued protection of the
secret or confidential information.
11.3 Notice. If either Party ("First Party") becomes aware of the loss,
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theft or misappropriation of the other Party's Confidential Information which is
in the First Party's possession or control, the First Party shall notify the
other Party in writing within five (5) days of its discovery of such loss, theft
or misappropriation.
11.4 Terms Confidential; Publicity. Neither Party shall disclose the terms
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and conditions of this Agreement to any third party without the other Party's
prior written consent, except to the extent required by applicable governmental
authorities. Notwithstanding the foregoing, each Party shall have the right to
disclose this Agreement to its attorneys, accountants and like personnel, and to
potential investors or acquirors, and for SEC filings, IPO events under
reasonable conditions of confidentiality. ChipPac agrees to issue joint press
announcements with LSI promptly after the Effective Date and promptly after
Initial Qualification. Each party must approve of the content of such
announcements before they are released. Neither party shall otherwise issue a
press release regarding this Agreement without the other Party's prior written
consent.
12. GENERAL PROVISIONS
12.1 Assignment. ChipPac shall not assign any of its rights or privileges
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to any person (including its Affiliates) hereunder, whether by operation of law
or otherwise (including, without limitation, by merger with or acquisition by a
third party) without the prior written approval of LSI, which approval LSI shall
not unreasonably withhold. Any attempted assignment in violation of this Section
12.1 shall be null and void ab initio. LSI shall have the unrestricted right to
assign this Agreement to any person, in which case the definition of "LSI's
Intellectual Property Rights" shall include only those Intellectual Property
Rights licensed hereunder prior to the effective date of any such assignment.
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12.2 Controlling Law. This Agreement shall be construed and interpreted in
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accordance with the law of the State of California (except its choice of law
rules) as though made by two parties residing in California so as to be fully
performed within that State.
12.3 Export Controls. ChipPac shall comply with all export control laws
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and regulations of the United States of America.
12.4 Waiver. No failure or delay on the part of either party in the
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exercise of any right or privilege hereunder shall operate as a waiver thereof
or of the exercise of any right or privilege hereunder, nor shall any single or
partial exercise of any such right or privilege preclude other or further
exercise thereof or of any other right or privilege.
12.5 Notice. Any notice or claim provided for herein shall be in writing
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and shall be given (i) by personal delivery, effective upon delivery, (ii) by
first class mail, postage prepaid, addressed to the address first stated above
for the recipient, effective one (1) business day after proper deposit in the
mail, or (iii) by facsimile directed to the facsimile number first indicated
above for the recipient, but only if accompanied by mailing of a copy in
accordance with (ii) above, effective as of the date of facsimile transmission.
12.6 Severability; Several Rights and Obligations. If any provision of
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this Agreement is held to be ineffective, unenforceable or illegal for any
reason, such decision shall not effect the validity or enforcement of any or all
of the remaining portions thereof. If more than one Product is covered under
this Agreement, then the rights and obligations of the parties as to each such
Product shall be several and independent from those as to any other Product.
12.7 Other Rights. Nothing contained in this Agreement shall be construed
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as conferring by implication, estoppel or otherwise upon either party or any
third party any license or other right except, solely as to the parties hereto,
the rights expressly granted hereunder.
12.8 Publicity. All notices to third parties and all other publicity
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concerning the transactions contemplated by this Agreement shall be jointly
planned and coordinated by and between the parties. Neither of the parties shall
act unilaterally in this regard without the prior written approval of the other
party; however, this approval shall not be unreasonably withheld.
12.9 Titles. Any titles included herein are for convenience only and are
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not to be used in the interpretation of this Agreement.
12.10 Integration; Modification. This Agreement, together with the Exhibits
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hereto, embodies the final, complete and exclusive statement of the terms of
their agreement with respect to the subject matter hereof and supersedes any
prior or contemporaneous representations, descriptions, courses of dealing or
agreements as to such subject matter. No amendment or modification of this
Agreement or any Exhibit hereto shall be valid or binding upon the parties
unless in writing and signed by an officer of each party, and NO EMPLOYEE OF
EITHER PARTY OR REPRESENTATIVE HAS ANY AUTHORITY OTHERWISE TO BIND EITHER PARTY
TO ANY OBLIGATION OR LIABILITY NOT EXPRESSLY STATED HEREIN.
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12.11 Arbitration. Any dispute relating to the enforceability,
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interpretation of performance of this Agreement (other than claims for which
injunctive relief is sought), or relating to the parties' relationship or any
transactions between them arising out of this Agreement, shall be resolved at
the request of either party through binding arbitration in San Francisco,
California; provided, however, that it shall not be deemed a waiver of the right
to arbitrate for a party to seek, nor shall this Agreement be interpreted to
preclude a party from seeking, in a court of competent jurisdiction, temporary
or preliminary injunctive relief pending entry of judgment on any arbitration
award, or other appropriate prejudgment relief. Any discovery shall be conducted
in accordance with the Federal Rules of Civil Procedure. Except as otherwise
expressly provided herein, arbitration shall be conducted in accordance with the
Commercial Rules of the American Arbitration Association. The arbitration shall
be conducted by three arbitrators. Each party will select one arbitrator, and
the two arbitrators thus selected will select a third arbitrator. Judgment upon
award by the arbitrators may be entered by any state or federal court having
jurisdiction.
12.12 Relationship to the Parties. The relationship of the parties hereto
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is that of independent contractors. Neither party, nor its agents or employees
shall be deemed to be the agent, employee, joint venturer, partner or fiduciary
of the other party. Neither party shall have the right to bind the other party,
transact any business in the other party's name or on its behalf or incur any
liability for or on behalf of the other party.
IN WITNESS HEREOF the parties have caused this Agreement to be signed by
their duly authorized representatives.
LSI LOGIC CORPORATION ("LSI")
By: /s/ Maniam Alagaratnam
--------------------------------------
Name: Maniam Alagaratnam
--------------------------------------
Title: Vice President, Packaging Development
--------------------------------------
Date: February 10, 2000
--------------------------------------
CHIPPAC LIMITED ("ChipPac")
By: /s/ Xxxxxxx Xxxxxxx
--------------------------------------
Name: Xxxxxxx Xxxxxxx
--------------------------------------
Title: Director
--------------------------------------
Date: February 16, 2000
--------------------------------------
11
EXHIBIT A
TECHNICAL INFORMATION
[This exhibit was never completed.]
12
EXHIBIT B
PATENT APPLICATIONS
[This exhibit was never completed.]
13
EXHIBIT C
FEE SCHEDULE
[redacted *] within thirty days of the Effective Date.
[redacted *] on completion of CSP qualification test vehicle or June 30, 2000
whichever occurs earlier.
[redacted *] within sixty days after the date of Initial Qualification by LSI.
All amounts are stated in U.S. currency.
14
____________
* Confidential treatment requested.
