Exhibit 10.58
INTEL & AMD CONFIDENTIAL
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PATENT CROSS LICENSE AGREEMENT
BETWEEN
ADVANCED MICRO DEVICES, INC. AND INTEL CORPORATION
This Patent License Agreement ("Agreement") is entered into as of January 1,
2001 ("Effective Date") by and between Advanced Micro Devices, Inc., a Delaware
corporation, having an office at One AMD Place, Sunnyvale, CA ("AMD") and Intel
Corporation, a Delaware corporation, having an office at 0000 Xxxxxxx Xxxxxxx
Xxxx., Xxxxx Xxxxx, Xxxxxxxxxx 00000, X.X.X. ("Intel").
IN CONSIDERATION OF THE MUTUAL COVENANTS AND PROMISES CONTAINED HEREIN, THE
PARTIES AGREE AS FOLLOWS:
1. DEFINITIONS
1.1. "Affiliate" shall mean any entity (a) of which a party is a
Subsidiary (such entity being a "Parent"), (b) that is a Subsidiary
of a party, or (c) that is a Subsidiary of a Parent of a party.
1.2. "Capture Period" shall mean any time on or prior to the tenth
anniversary of the Effective Date.
1.3. "AMD Compatible Chipsets" shall mean *****.
1.4. "AMD Interface" shall mean *****.
1.5. "AMD Licensed Products" shall mean *****.
1.6. "AMD Processor" shall mean *****.
1.7. "AMD Processor Bus" shall mean *****.
1.8. "AMD Proprietary Product" shall mean *****.
1.9. "Information System Product" shall mean *****.
1.10. "Integrated Circuit" shall mean an integrated unit comprising (a)
one or more active and/or passive circuit elements associated on one
or more substrates, such unit forming, or contributing to the
formation of, a circuit for performing electrical functions
(including, if provided therewith, housing and/or supporting means)
in combination with (b) any and all firmware, microcode or drivers,
if needed to cause such circuit to perform substantially all of its
intended hardware functionality, whether or not such firmware,
microcode or drivers are shipped with such integrated unit or
installed at a later time.
1.11. "Intel Compatible Chipsets" shall mean *****.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
INTEL & AMD CONFIDENTIAL
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1.12. "Intel Interface" shall mean *****.
1.13. "Intel Licensed Products" shall mean *****.
1.14. "Intel Processor" shall mean *****.
1.15. "Intel Processor Bus" shall mean *****.
1.16. "Intel Proprietary Product" shall mean *****.
1.17. "Licensed Product" shall mean an AMD Licensed Product or an Intel
Licensed Product as applicable.
1.18. "Net Revenue" shall mean the *****. Deductions may not include
*****. Calculation of Net Revenue shall be subject to the following
terms.
(a) For sales or other dispositions to end-customers (i.e., not to
distributors), AMD may also deduct from Net Revenue *****.
(b) Sales or other dispositions to an AMD Subsidiary shall not be
deemed sales that trigger Net Revenue until *****.
(c) Sales or other dispositions to a third party that is not an
AMD Subsidiary shall be deemed to have occurred as follows.
*****.
(d) When a Royalty-Bearing Unit is sold or disposed of as part of
a system rather than as an individual component, the Net
Revenue shall be determined as follows, *****.
(e) When a Royalty-Bearing Unit is sold or disposed of through a
transaction in which AMD does not invoice the recipient of the
Royalty-Bearing Unit (other than as specified in Section
1.18(b) above), the Net Revenue shall be determined as
follows. *****.
(f) All currency transactions shall be translated to United States
dollars using the average daily conversion rate for the period
based upon published Wall Street Journal rates.
1.19. "Patents" shall mean all classes or types of patents other than
design patents (including, without limitation, originals, divisions,
continuations, continuations-in-part, extensions or reissues), and
applications for these classes or types of patent rights in all
countries of the world (collectively "Patent Rights") that, at any
time during the term of this Agreement, are owned or controlled by
the applicable party or any of its Subsidiaries or to which such
entities have the right to grant licenses, that have a first
effective filing date during the Capture Period and to the extent
that the applicable party or its Subsidiaries has the right to grant
licenses within and of the scope set forth herein and without the
requirement to pay consideration to any third party (other than
employees of the applicable party or its Subsidiaries) for the grant
of a license under this Agreement.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
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1.20. "Processor" shall mean any Integrated Circuit or combination of
Integrated Circuits capable of processing digital data, such as a
microprocessor or coprocessor (including, without limitation, a math
coprocessor, graphics coprocessor, or digital signal processor) that
is capable of executing a substantial portion of the instruction set
of an AMD Processor or an Intel Processor.
1.21. "Royalty-Bearing Units" shall mean *****.
1.22. "Subsidiary" shall mean any corporation, partnership, joint venture,
limited liability or other entity, now or hereafter, in which a
party
(a) owns or controls (either directly or indirectly) or originally
contributed (either directly or indirectly) at least fifty
percent (50%) of the tangible and intangible assets of such
entity; and
(b) owns or controls (either directly or indirectly) either of the
following:
(1) if such entity has voting shares or other securities, at
least fifty percent (50%) of the outstanding shares or
securities entitled to vote for the election of
directors or similar managing authority and such entity
is under no obligation (contractual or otherwise) to
directly or indirectly distribute more than seventy
percent (70%) of its profits to a third party, or
(2) if such entity does not have voting shares or other
securities, at least fifty percent (50%) of the
ownership interest that represents the right to make
decisions for such entity and an interest sufficient to
receive at least thirty percent (30%) of the profits
and/or losses of such entity.
(c) An entity shall be deemed to be a Subsidiary under this
Agreement only so long as all requisite conditions of being a
Subsidiary are met.
2. MUTUAL RELEASES
2.1. AMD. AMD, on behalf of itself and its Subsidiaries, hereby releases,
---
acquits and forever discharges Intel, its Subsidiaries that are
Subsidiaries as of the Effective Date or become Subsidiaries during
the term of this Agreement, and its and their distributors and
customers, direct and indirect, from any and all claims or liability
for infringement (direct, induced, indirect or contributory) of any
AMD Patents that arise prior to the Effective Date of this
Agreement, to the extent such infringement would have been licensed
under the license granted to Intel hereunder if such license had
been in existence at the time of such infringing activity.
2.2 Intel. Intel, on behalf of itself and its Subsidiaries, hereby
-----
releases, acquits and forever discharges AMD, its Subsidiaries that
are Subsidiaries as of the Effective Date or become Subsidiaries
during the term of this Agreement, and its and their distributors
and customers, direct and indirect, from any and all claims or
liability for infringement (direct, induced, indirect or
contributory) of any Intel Patents that arose prior to the
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
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Effective Date of this Agreement, to the extent such infringement
would have been licensed under the license granted to AMD hereunder
if such license had been in existence at the time of such infringing
activity.
3. GRANT OF RIGHTS
3.1. AMD License to Intel. Subject to the terms and conditions of this
--------------------
Agreement, AMD hereby grants to Intel a non-exclusive,
non-transferable ***** worldwide license, without the right to
sublicense, under AMD's Patents to:
(a) make, use, sell (directly or indirectly), offer to sell,
import and otherwise dispose of all Intel Licensed Products;
and
(b) make, have made, use and/or import any equipment and practice
any method or process for the manufacture, use and/or sale of
Intel Licensed Products; and
(c) have made ***** Intel Licensed Products by another
manufacturer for supply solely to Intel for use, import, sale,
offer for sale or disposition by Intel pursuant to the license
granted above in Section 3.1(a).
3.2. Intel License to AMD. Subject to the terms and conditions of this
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Agreement, Intel hereby grants to AMD a non-exclusive,
non-transferable ***** worldwide license, without the right to
sublicense, under Intel's Patents to:
(a) make, use, sell (directly or indirectly), offer to sell,
import and otherwise dispose of all AMD Licensed Products;
(b) make, have made, use and/or import any equipment and practice
any method or process for the manufacture, use and/or sale of
AMD Licensed Products; and
(c) have made ***** AMD Licensed Products by another manufacturer
for supply solely to AMD for use, import, sale, offer for sale
or disposition by AMD pursuant to the license granted above in
Section 3.2(a).
3.3. *****
3.4. Intel grants to AMD, for use in or with an AMD Licensed Product,
licenses under Intel's copyrights in *****. No other copyright
license to AMD is provided by this Agreement other than as set forth
in this paragraph, either directly or by implication or estoppel.
3.5. AMD grants to Intel, for use in or with an Intel Licensed Product,
licenses under AMD's copyrights in *****. No other copyright license
to Intel is provided by this Agreement other than as set forth in
this paragraph, either directly or by implication or estoppel.
3.6 Clarification Regarding *****. The parties understand and
-----------------------
acknowledge that the licenses granted hereunder are intended to
cover only the products of the two parties to this Agreement, and
are not intended to cover *****. Similarly, the licenses provided
under this Agreement are not intended to cover *****. Accordingly,
by way of
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
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clarification, the following guidelines are provided to aid the
determination of whether a party's product is a Licensed Product as
defined herein or whether such product is disqualified from being a
Licensed Product because *****.
(a) Products of either party (including, without limitation,
Application Specific Integrated Circuits "ASICs") that
otherwise meet the definition of Licensed Product are
disqualified as Licensed Products if such products *****.
(b) Products of either party (including, without limitation,
ASICs) that otherwise meet the definition of Licensed Product
are not disqualified as Licensed Products under ***** this
Section 3.6 if:
(1) the party hereto selling such Licensed Product *****; or
(2) the party hereto selling such Licensed Product *****.
The guidelines set forth in this Section 3.6 restricting the definition of
Licensed Product shall not apply to *****.
The guidelines set forth in this Section 3.6 restricting the definition of
Licensed Product shall not apply to the *****.
3.7. *****
3.8. Licenses and Subsidiaries.
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(a) Intention for Subsidiaries to be Bound.
(1) Except as expressly set forth herein, the parties intend that
this Agreement shall extend to all of each party's
Subsidiaries. The parties agree that to the extent they are
not already bound, each party shall use reasonable and
diligent efforts to ensure that all such Subsidiaries are
bound by the terms of this Agreement.
(2) Each party agrees to take all steps that are reasonable and in
good faith under the circumstances to ensure that all Patents
directed to inventions that are made by its employees and/or
contractors either alone or in conjunction with the employees
and/or contractors of one or more of its Subsidiaries or third
parties (to the extent legally possible) are licensed under
this Agreement. Each party further agrees to take all steps
that are reasonable and in good faith under the circumstances
to ensure that all Patents directed to inventions that are
made in substantial part using funding provided directly or
indirectly by that party and/or its Subsidiaries are licensed
under this Agreement.
(3) Notwithstanding the foregoing, however, both parties
understand and intend that there are circumstances in which a
party could reasonably agree in good faith with an independent
third party that the party would not have rights to license
and/or enforce Patents directed to inventions
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
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developed in conjunction with employees and or contractors of
such third party. For example, both parties understand that it
could be reasonable under the circumstances for a party to
agree in good faith not to have rights to license and/or
enforce Patents directed to inventions that arise out of:
*****.
(4) Either party to this Agreement shall have the right to request
a written confirmation or denial from the other party to this
Agreement that a specific Subsidiary is (or is not) bound by
this Agreement. A party receiving such a request shall provide
such written confirmation (including a full explanation in
support of such confirmation or denial) within 30 days after
the receipt of the request.
(b) In the event that neither a party nor any of its Subsidiaries has
the right to grant a license under any particular Patent Right of
the scope set forth herein, then *****.
(c) The parties represent, warrant and covenant that they shall not
*****.
(d) If either party or one of their Subsidiaries ("First Party") owns or
has the right to enforce or control the enforcement of any rights in
any Patent but *****.
(e) The extension of license rights to a Subsidiary shall apply only
during the time period when such Subsidiary meets all requirements
of a Subsidiary. However, if a Subsidiary of a party that holds any
Patents that are licensed to the other party hereunder ceases to
meet all requirements of being a Subsidiary, the licenses granted by
such Subsidiary to the other party under this Agreement shall
continue for the life of such Patents even after such entity ceases
to meet all the requirements of being a Subsidiary.
(f) Notwithstanding anything to the contrary contained herein, in the
event that either party or any of its Subsidiaries obtains rights to
any Patents that would be included within the Patents licensed
hereunder but for the fact that such a license would require the
party granting such license to make payments to a third party, such
Patents shall be included within the AMD Patents or the Intel
Patents, as the case may be, if the party to whom such would be
licensed under this Agreement agrees in a separate written agreement
to be bound by, and protect such grantor against, those payment
obligations.
(g) Notwithstanding Section 3.8(e), if a Subsidiary of a party becomes a
Former Subsidiary, the other party ("Other Party") agrees that it
shall *****, provided that:
(1) *****;
(2) *****;
(3) *****, and;
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
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(4) For purposes of this Section 3.8(g), *****.
3.9. Waiver of Indirect Infringement Liability.
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(a) For purposes of this Section 3.9, "Indirect Infringement"
means a claim for infringement where the accused infringer is
not directly infringing the subject patent rights(s), but is
in some manner contributing to a third party's direct
infringement of the subject Patent Rights(s) by, for example,
supplying parts or instructions to the third party that as a
result of such parts or instructions enable such third party
to infringe directly the subject patent rights(s). Indirect
Infringement includes without limitation contributory
infringement and inducing infringement.
(b) Each party agrees that, unless the licenses it has granted
hereunder are terminated pursuant to Section 6.2, for any
Patents licensed hereunder and/or subject to Section 3.8(d) it
will not assert a claim of Indirect Infringement against the
other party ("Licensed Party") where such a claim would be
based in any part or in any way upon (a) any activity for
which the Licensed Party is licensed under this Agreement, or
(b) the Licensed Party providing instructions regarding or
sample designs related to its Licensed Products. The parties
agree that the foregoing sentence does not and shall not in
any way limit their respective rights to assert direct or
indirect claims of infringement against third parties.
3.10. No Other Rights. No other rights are granted hereunder, by
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implication, estoppel, statute or otherwise, except as expressly
provided herein. Specifically, (i) except as expressly provided in
Section 3, nothing in the licenses granted hereunder or otherwise
contained in this Agreement shall expressly or by implication,
estoppel or otherwise give either party any right to license the
other party's Patents to others, and (ii) no license or immunity is
granted by either party hereto directly or by implication, estoppel
or otherwise to any third parties acquiring items from either party
for the combination of Licensed Products with other items or for the
use of such combination. Nothing in this Section 3 shall be deemed
as an agreement or prohibition against the manufacture, use, sale or
importation of any product by either party.
4. ROYALTY PAYMENTS BY AMD
4.1. AMD agrees to pay INTEL a royalty on the Net Revenue from sales and
other dispositions of Royalty-Bearing Units as a percentage of such
Net Revenue according to the following schedule:
Disposition Date of Royalty-Bearing Unit Royalty Rate
---------------------------------------- ------------
***** *****%
***** *****%
***** *****%
***** *****%
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
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4.2. Intel represents that for the term of this Agreement, *****. The
parties agree that in no event shall Intel's performance under the
terms of this provision or Intel's breach of this representation be
a cause of legal action or termination for material breach.
4.3. Within ***** (*****) days of the end of each calendar quarter, AMD
shall pay the full amount of royalties due with respect to such
quarter to Intel by wire transfer for the account of Intel to *****,
or such other account as Intel may indicate from time to time. Along
with each such payment, AMD shall deliver to Intel a detailed
written royalty statement, in a form reasonably acceptable to Intel,
which shows the sum of the ***** each allowed deduction applied by
AMD to arrive at the ***** sold or otherwise disposed of, the
royalty rate in effect, and the total royalty due to Intel. All
royalty notices and reports shall be delivered to Intel at the
following address, until such address is changed by notice from
Intel:
Intel Corp
0000 XX 00xx Xxx
Xxxxxxxxx, XX 00000
MS JF3-149
4.4. All payments shall be made free and clear without deduction for any
and all present and future taxes imposed by any taxing authority. In
the event that AMD is prohibited by law from making such payments
unless such deductions are made or withheld therefrom, then AMD
shall pay such additional amounts as are necessary in order that the
net amounts received by INTEL, after such deduction or withholding,
equal the amounts which would have been received if such deduction
or withholding had not occurred. AMD shall promptly furnish INTEL
with a copy of an official tax receipt or other appropriate evidence
of any taxes imposed on payments made under this Agreement,
including taxes on any additional amounts paid. In cases other than
taxes referred to above including but not limited to sales and use
taxes, stamp taxes, value added taxes, property taxes and other
taxes or duties imposed by any taxing authority on or with respect
to the Agreement, the costs of such taxes or duties shall be borne
by AMD. In the event that such taxes or duties are legally imposed
initially on INTEL or INTEL is later assessed by any taxing
authority, then INTEL will be promptly reimbursed by AMD for such
taxes or duties together with any penalties, fines and interest
thereon, except for interest, fines and/or penalties assessed due to
the negligence, failure or fault of INTEL which interest, fines
and/or penalties remain the sole obligation of INTEL. This clause
shall survive the termination of the Agreement. Notwithstanding the
foregoing, AMD shall not be responsible for taxes on or measured by
Intel's net income.
4.5. INTEL agrees to make every good faith effort to notify AMD's tax
department within ten (10) days of any audit, notice, assessment or
other action affecting sales, use, stamp, value added, property or
other taxes to be paid directly or indirectly by AMD. INTEL grants
AMD the right to pursue a separate action against any governmental
unit that asserts such taxes against INTEL and INTEL agrees to
cooperate in a reasonable manner with AMD for the purpose of
minimizing taxes, that pursuant to this section are to be paid
directly or indirectly by AMD.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
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4.6. AMD agrees that any payments required under the terms of this
Agreement which are not paid when due will accrue interest at the
***** rate established by ***** (on the first business day after any
such payment is due), where such interest shall accrue starting
***** (*****) days after the due date as established by this
Agreement. The right to collect interest on such late payments shall
be in addition to any other rights that INTEL may have herein.
4.7. AMD covenants that it will maintain adequate accounting records of
all production, sales, leases or other dispositions of ***** for
purposes of audit sufficient to permit a reasonable confirmation of
AMD's compliance with its royalty obligations herein for a period of
three (3) years after sale or other disposition of each *****. The
foregoing information shall be used solely for audit purposes.
4.8. The parties agree that INTEL shall have the right to conduct audits
of AMD for the purpose of determining that the terms of this
Agreement are being met. Such audits shall be held at any reasonable
time during business hours but no more than once in each calendar
year. An independent certified public accounting firm selected and
paid by INTEL and reasonably satisfactory to AMD shall conduct such
audits. The purpose of such audits shall be to verify that the terms
of this Agreement are being met, including the royalty statements
and payments provided herein. AMD agrees to provide such accounting
firm with reasonable access to accounting records and information
requested during an audit. The information will be made available to
the accounting firm under conditions of confidentiality and it will
report to INTEL and to AMD only whether the terms of this Agreement
are being met, including without limitation that payments have been
properly reported on and paid or, if not, the amount of any
overpayment or underpayment. This provision will survive the last
payment of a royalty under this Agreement for a period of three (3)
years. Should the audit discover any errors or omissions by AMD
resulting in an underpayment of more than five percent (5%) of the
amount due with respect to any reporting period, AMD shall reimburse
Intel for the full costs of such audit.
4.9. The parties hereby agree that the above royalty rates are a
reasonable compromise for ease of accounting and administration
based on the fact that neither party wishes to keep strict records
of the Intel Patents that each Royalty-Bearing Unit or the
manufacturing processes therefor infringes based on AMD's constantly
changing product mix, manufacturing technology and the likelihood
that Intel will receive new patents covering both such products and
processes during the term of this Agreement.
5. PRIOR LICENSE
5.1 This Agreement supersedes the patent cross license agreement made by
the parties hereto with an Effective Date of ***** and the rights
and licenses of each party under, or with respect to the patents of
the other party and its Subsidiaries shall be governed by this
Agreement beginning with the Effective Date. However, *****. The
License Agreement dated ***** between Intel and AMD, and extensions
thereof, as modified in
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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***** shall govern all patent license grants between Intel and AMD
for all patents having an issue date in the country of issue *****.
Notwithstanding anything to the contrary herein, nothing in this
Agreement shall limit, terminate or have any other effect upon any
patent licenses between the parties (other than those specifically
identified above in this Section 5.1), including without limitation
specific or special purpose patent licenses such as the ***** or
other such agreement.
6. EFFECTIVE DATE, TERM AND TERMINATION FOR CAUSE
6.1. Term. This Agreement and the rights and licenses granted hereunder
----
shall become effective on the Effective Date, and shall continue in
effect until terminated by a party pursuant to Section 6.2. The
parties agree to meet one (1) year prior to the expiration of the
Capture Period to negotiate in good faith for a renewal of the
license. However, nothing in this paragraph or this Agreement
obligates either party to renew this Agreement, enter into any other
agreements or grant any other licenses now or in the future.
6.2. Termination for Cause.
---------------------
(a) A party may terminate the other party's rights and licenses
hereunder upon notice if the other party hereto commits a
material breach of this Agreement and does not correct such
breach within sixty (60) days after receiving written notice
complaining thereof. In the event of such termination, the
rights and licenses granted to the defaulting party shall
terminate, but the rights and licenses granted to the party
not in default shall survive such termination of this
Agreement subject to its continued compliance with the terms
and conditions of this Agreement.
(b) A party hereto may terminate this Agreement upon sixty (60)
days written notice of termination to the other party given at
any time upon or after:
(1) the filing by the other party of a petition in
bankruptcy or insolvency;
(2) any adjudication that the other party is bankrupt or
insolvent;
(3) 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;
(4) the appointment of a receiver for all or substantially
all of the property of the other party;
(5) the making by the other party of any assignment for the
benefit of creditors;
(6) the institution of any proceedings for the liquidation
or winding up of the other party's business or for the
termination of its corporate charter;
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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(7) the other party undergoes a Change of Control. For
purposes of this Section 6.2(b)(7), "Change of Control"
shall mean a transaction or a series of related
transactions in which (i) one or more related parties
who did not previously own at least a fifty percent
(50%) interest in a party to this Agreement obtain at
least a fifty percent (50%) interest in such party, and,
in the reasonable business judgment of the other party
to this Agreement, such change in ownership will have a
material effect on the other party's business, or (ii) a
party acquires, by merger, acquisition of assets or
otherwise, all or any portion of another legal entity
such that either the assets or market value of such
party after the close of such transaction are greater
than one and one third (1 1/3) of the assets or market
value of such party prior to such transaction.
6.3. Survival. The provisions of Sections 1, 2, 4.5, 5, 6.3, 7 and 9 will
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survive any termination or expiration of this Agreement.
7. DISCLAIMER
7.1. Nothing contained in this Agreement shall be construed as:
(a) a warranty or representation by either of the parties to this
Agreement as to the validity, enforceability or scope of any
class or type of Patent Right; or
(b) a warranty or representation that any manufacture, sale,
lease, use or other disposition of Licensed Products hereunder
will be free from infringement of any patent rights or other
intellectual property rights of either party or any third
party.
(c) an agreement to bring or prosecute actions or suits against
third parties for infringement or conferring any right to
bring or prosecute actions or suits against third parties for
infringement; or
(d) conferring any right to use in advertising, publicity, or
otherwise, any trademark, trade name or names, or any
contraction, abbreviation or simulation thereof, of either
party; or
(e) conferring by implication, estoppel or otherwise, upon any
party licensed hereunder, any license or other right under any
Patent Rights, copyright, maskwork, trade secret, trademark
other intellectual property right except the licenses and
rights expressly granted hereunder; or
(f) an obligation to furnish any technical information or
know-how.
7.2. NO IMPLIED WARRANTIES. EACH PARTY HEREBY DISCLAIMS ANY IMPLIED
---------------------
WARRANTIES WITH RESPECT TO THE PATENTS LICENSED HEREUNDER, INCLUDING
WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY OR FITNESS FOR
A PARTICULAR PURPOSE.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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8. ASSIGNMENT
8.1. No Assignment. This Agreement is personal to the parties, and the
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Agreement or any right or obligation hereunder is not assignable,
whether in conjunction with a change in ownership, merger,
acquisition, the sale or transfer of all, or substantially all or
any part of a party's business or assets or otherwise, either
voluntarily, by operation of law, or otherwise, without the prior
written consent of the other party, which consent may be withheld at
the sole discretion of such other party. Any such purported
assignment or transfer shall be deemed a breach of this Agreement
and shall be null and void. This Agreement shall be binding upon and
inure to the benefit of the parties and their permitted successors
and assigns.
8.2. Limited Exception. As a limited exception to Sections 6.2 and 8.1,
-----------------
either party (but not any of its successors or assigns) may assign
the licenses granted under this Agreement pursuant to *****, subject
to the following conditions:
(a) The assigning party ("Assignor") must *****.
(b) *****.
(c) The licenses granted to Assignor hereunder terminate
immediately upon any such assignment and only the assignee
shall be entitled to the benefit of such licenses.
(d) *****.
(e) Prior to any such assignment becoming effective, the assignee
must:
(1) *****, and
(2) *****
(3) *****.
9. MISCELLANEOUS PROVISIONS
9.1. Authority. Each of the parties hereto represents and warrants that
---------
it has the right to grant the other the licenses granted hereunder.
9.2. Notice. All notices required or permitted to be given hereunder
------
shall be in writing and shall be delivered by hand, or if dispatched
by prepaid air courier or by registered or certified airmail,
postage prepaid, addressed as follows:
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
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INTEL & AMD CONFIDENTIAL
------------------------
If to AMD: If to Intel:
--------- -----------
General Counsel General Counsel
Advanced Micro Devices, Inc. Intel Corporation
One AMD Place 0000 Xxxxxxx Xxxxxxx Xxxx.
Xxxxxxxxx, XX 00000 Xxxxx Xxxxx, XX 00000
Xxxxxx Xxxxxx of America United States of America
Such notices shall be deemed to have been served when received by
addressee or, if delivery is not accomplished by reason of some
fault of the addressee, when tendered for delivery. Either party may
give written notice of a change of address and, after notice of such
change has been received, any notice or request shall thereafter be
given to such party as above provided at such changed address.
9.3. No Rule of Strict Construction. Regardless of which party may have
------------------------------
drafted this Agreement, no rule of strict construction shall be
applied against either party. If any provision of this Agreement is
determined by a court to be unenforceable, the parties shall deem
the provision to be modified to the extent necessary to allow it to
be enforced to the extent permitted by law, or if it cannot be
modified, the provision will be severed and deleted from this
Agreement, and the remainder of the Agreement will continue in
effect.
9.4. Taxes. Each party shall be responsible for the payment of its own
-----
tax liability arising from this transaction except as otherwise
provided in section 4.5.
9.5. Entire Agreement. This Agreement embodies the entire understanding
----------------
of the parties with respect to the subject matter hereof, and merges
all prior discussions between them, and neither of the parties shall
be bound by any conditions, definitions, warranties, understandings,
or representations with respect to the subject matter hereof other
than as expressly provided herein. No oral explanation or oral
information by either party hereto shall alter the meaning or
interpretation of this Agreement.
9.6. Modification; Waiver. No modification or amendment to this
--------------------
Agreement, nor any waiver of any rights, will be effective unless
assented to in writing by the party to be charged, and the waiver of
any breach or default will not constitute a waiver of any other
right hereunder or any subsequent breach or default.
9.7. Governing Law. This Agreement and matters connected with the
-------------
performance thereof shall be construed, interpreted, applied and
governed in all respects in accordance with the laws of the United
States of America and the State of Delaware, without reference to
conflict of laws principles.
9.8. Jurisdiction. Intel and AMD agree that all disputes and litigation
------------
regarding this Agreement and matters connected with its performance
shall be subject to the exclusive jurisdiction of the courts of the
State of Delaware or of the Federal courts sitting therein.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
- 13 -
INTEL & AMD CONFIDENTIAL
------------------------
9.9. Dispute Resolution. All disputes arising directly under the express
------------------
terms of this Agreement or the grounds for termination thereof shall
be resolved as follows: First, the senior management of both parties
shall meet to attempt to resolve such disputes. If the senior
management cannot resolve the disputes, either party may make a
written demand for formal dispute resolution. Within thirty (30)
days after such written demand, the parties agree to meet for one
day with an impartial mediator and consider dispute resolution
alternatives other than litigation. If an alternative method of
dispute resolution is not agreed upon within thirty (30) days after
the one-day mediation, either party may begin litigation
proceedings.
9.10. Confidentiality of Terms. The parties hereto shall keep the terms of
------------------------
this Agreement confidential and shall not now or hereafter divulge
these terms to any third party except:
(a) with the prior written consent of the other party; or
(b) to any governmental body having jurisdiction to call therefor;
or
(c) subject to (d) below, as otherwise may be required by law or
legal process, including to legal and financial advisors in
their capacity of advising a party in such matters; or
(d) during the course of litigation so long as the disclosure of
such terms and conditions are restricted in the same manner as
is the confidential information of other litigating parties
and so long as (a) the restrictions are embodied in a
court-entered Protective Order and (b) the disclosing party
informs the other party in writing at least ten (10) days in
advance of the disclosure; or
(e) in confidence to legal counsel, accountants, banks and
financing sources and their advisors solely in connection with
complying with financial transactions.
The parties shall cooperate in preparing and releasing an
announcement, if any, relating to this Agreement.
9.11. Compliance with Laws. Anything contained in this Agreement to the
--------------------
contrary notwithstanding, the obligations of the parties hereto and
of the Subsidiaries of the parties shall be subject to all laws,
present and future, of any government having jurisdiction over the
parties hereto or the Subsidiaries of the parties, and to orders,
regulations, directions or requests of any such government.
9.12. Force Majeure. The parties hereto shall be excused from any failure
-------------
to perform any obligation hereunder to the extent such failure is
caused by war, acts of public enemies, strikes or other labor
disturbances, fires, floods, acts of God, or any causes of like or
different kind beyond the control of the parties.
Confidential treatment has been requested for portions of this exhibit. The
copy filed herewith omits the information subject to the confidentiality
request. Omissions are designated as *****. A complete version of this exhibit
has been filed separately with the Securities and Exchange Commission.
- 14 -
INTEL & AMD CONFIDENTIAL
------------------------
WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed on the date below written.
INTEL CORPORATION AMD
By: /s/ X. X. Xxxxxxx By: /s/ Xxxxxx Xxxx
---------------------- --------------------------
Xxxxx Xxxxxxx Xxxxxx de X. Xxxx
------------------------- -----------------------------
Printed Name Printed Name
CEO COO
------------------------- -----------------------------
Title Title
May 1, 2001 May 4, 2001
------------------------- -----------------------------
Date Date
- 15 -
