EXHIBIT 10.17
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.
Development Agreement
January 6, 2003
CONFIDENTIAL
----------
DEVELOPMENT
AGREEMENT
BY AND AMONG
SONY COMPUTER ENTERTAINMENT, INC.
AND TOSHIBA CORPORATION
AND
RAMBUS INC.
----------
Development Agreement
January 6, 2003
TABLE OF CONTENTS
PAGE
----
SECTION 1. DEFINITIONS.........................................................2
1.1 Rambus Interface Technology.........................................2
1.2 Redwood Rambus Interface Technology.................................2
1.3 Rambus Interface Specification......................................2
1.4 Redwood Rambus Interface Specification..............................2
1.5 Compatible..........................................................2
1.6 Yellowstone Rambus Interface Technology.............................2
1.7 Yellowstone Rambus Interface Specification..........................3
1.8 Yellowstone Rambus DRAM.............................................3
1.9 Other Agreements....................................................3
1.10 [*] Product.........................................................3
1.11 Broadband Engine....................................................3
1.12 Confidential Information............................................3
1.13 Redwood RAC.........................................................3
1.14 Yellowstone RAC.....................................................3
1.15 RAC Test Chip.......................................................3
1.16 Control.............................................................3
1.17 Subsidiary..........................................................4
1.18 Affiliate...........................................................4
1.19 Effective Date......................................................4
SECTION 2. TECHNOLOGY IMPLEMENTATION AND PROMOTION.............................4
2.1 Technology Implementation Deliverables..............................4
2.2 RACs................................................................4
2.3 Yellowstone RMC.....................................................5
2.4 Connector Designs...................................................5
2.5 Package Designs.....................................................6
2.6 [*] Test Chip.......................................................6
2.7 Consultation Obligations of Rambus..................................6
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PAGE
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2.8 Use of Yellowstone Technology and Redwood Technology in
Broadband Engine....................................................6
2.9 Liaison.............................................................7
2.10 Use Restrictions....................................................7
2.11 Disclaimer..........................................................7
2.12 Certain Termination.................................................8
2.13 Escrow..............................................................8
SECTION 3. DEVELOPMENT FEES....................................................9
3.1 Development Fees....................................................9
3.2 Withholding Taxes..................................................13
SECTION 4. CONFIDENTIAL INFORMATION...........................................14
4.1 Confidential Information...........................................14
4.2 Confidentiality....................................................15
4.3 Exceptions.........................................................16
4.4 Residuals..........................................................17
4.5 Additional Responsibilities........................................17
4.6 Subsidiaries.......................................................17
SECTION 5. INTELLECTUAL PROPERTY OWNERSHIP AND INDEMNIFICATION................18
5.1 Ownership..........................................................18
5.2 Rambus Indemnification Disclaimer..................................18
5.3 Toshiba Indemnification Disclaimer.................................19
5.4 SCE Indemnification Disclaimer.....................................19
SECTION 6. LIMITATION OF LIABILITY............................................19
SECTION 7. TERM AND TERMINATION...............................................20
7.1 Term...............................................................20
7.2 Termination........................................................20
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PAGE
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7.3 Survival...........................................................21
SECTION 8. GOVERNING LAW, DISPUTE RESOLUTION..................................22
8.1 Governing Law......................................................22
8.2 Dispute Resolution.................................................22
SECTION 9. MISCELLANEOUS......................................................23
9.1 Confidentiality of Agreement............................. .........23
9.2 Assignment.........................................................24
9.3 No Conflicts.......................................................24
9.4 Authority..........................................................24
9.5 Notices............................................................24
9.6 Electronic Transfers...............................................25
9.7 Export Controls....................................................25
9.8 Partial Invalidity.................................................26
9.9 No Third Party Beneficiaries.......................................26
9.10 Counterparts.......................................................27
9.11 Relationship of Parties............................................27
9.12 Modification.......................................................27
9.13 Waiver.............................................................27
9.14 Government Approvals...............................................27
9.15 Section Headings and Language......................................28
9.16 Ambiguities........................................................28
9.17 Force Majeure......................................................28
9.18 Currency...........................................................28
9.19 Entire Agreement...................................................28
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Development Agreement
January 6, 2003
DEVELOPMENT
AGREEMENT
This Development Agreement (the "Agreement") is entered into as of the
Effective Date, by and among Rambus Inc., a Delaware corporation with principal
offices at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇.▇.▇. ("Rambus");
and Toshiba Corporation, a Japanese corporation with principal offices at 1-1
▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ("Toshiba") and Sony Computer
Entertainment Inc., a Japanese corporation with principal offices at ▇-▇ ▇▇▇▇▇▇▇
▇-▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ("SCE").
WHEREAS, SCE and Toshiba have entered into a joint development
agreement (the "[*] Agreement") with [*] to develop a broadband microprocessor
(designated as the "Broadband Engine") for a [*] product;
WHEREAS, Rambus has developed and is developing certain logic-to-logic
interface technology currently designated by Rambus as "Redwood Rambus Interface
Technology," and certain logic-to-memory interface technology currently
designated by Rambus as "Yellowstone Rambus Interface Technology ";
WHEREAS, together with this Agreement, Toshiba and Rambus are entering
into a Redwood and Yellowstone Semiconductor Technology License Agreement of
even date hereof (the "Toshiba License Agreement");
WHEREAS, together with this Agreement, SCE (together with its parent
company, SONY Corporation) and Rambus are entering into a Redwood and
Yellowstone Semiconductor Technology License Agreement of even date hereof (the
"SONY License Agreement"); and
WHEREAS, the parties desire to cooperate with each other to enable SCE
and Toshiba (and [*] as SCE's sublicensee) to implement Rambus' Redwood Rambus
Interface Technology and Yellowstone Rambus Interface Technology as the bus
interfaces in and with the Broadband Engine (and related [*] designed to [*] to
the [*] on the terms and conditions set forth herein;
NOW, THEREFORE, IN CONSIDERATION OF THE FOREGOING AND THE MUTUAL
COVENANTS CONTAINED HEREIN, THE PARTIES AGREE AS FOLLOWS:
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Development Agreement
January 6, 2003
SECTION 1.
DEFINITIONS
For purposes of this Agreement the following terms shall have the
meanings set forth below:
1.1 Rambus Interface Technology. "Rambus Interface Technology" means
all interface technology which is owned by, developed by, used by, or licensed
to Rambus. "Rambus Interface Technology" includes all prior, current, and future
versions of this technology. As of the Effective Date, the versions of Rambus
Interface Technology include, without limitation, those designated by Rambus as
"Base," "Concurrent," "Direct," "Taos," "Yellowstone,"and "Redwood."
1.2 Redwood Rambus Interface Technology(a). "Redwood Rambus Interface
Technology" means any version of the Rambus technology, for the interface
between a logic chip and a logic chip, designated by Rambus as "Redwood Rambus
Interface Technology" as provided for under the Toshiba License Agreement or the
SONY License Agreement.
1.3 Rambus Interface Specification. For any version of Rambus
Interface Technology, "Rambus Interface Specification" means, at any time, the
then most current version of the interface specification for that version of
Rambus Interface Technology, as such interface specification is finalized and
released by Rambus.
1.4 Redwood Rambus Interface Specification. "Redwood Rambus Interface
Specification" means the Rambus Interface Specification for the Redwood Rambus
Interface Technology.
1.5 Compatible. "Compatible," as applied to an integrated circuit,
means that the integrated circuit both (i) is fully compliant with the
applicable Rambus Interface Specification such that the integrated circuit can
communicate with all other integrated circuits manufactured by licensees of
Rambus which comply with the same Rambus Interface Specification, and (ii)
complies in all respects with the protocol, pin function, pin sequencing, pin
pitch, electrical specifications, and mechanical specifications of the
applicable Rambus Interface Specification.
1.6 Yellowstone Rambus Interface Technology. "Yellowstone Rambus
Interface Technology" means any version of the Rambus technology, for the
interface between a logic chip and a memory chip, designated by Rambus as
"Yellowstone Rambus Interface Technology" as provided for under the Toshiba
License Agreement or the SONY License Agreement.
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Development Agreement
January 6, 2003
1.7 Yellowstone Rambus Interface Specification. "Yellowstone Rambus
Interface Specification" means the Rambus Interface Specification for the
Yellowstone Rambus Interface Technology.
1.8 Yellowstone Rambus DRAM. "Yellowstone Rambus DRAM" means a dynamic
random access memory integrated circuit ("DRAM"), Compatible with the
Yellowstone Interface Specification, which incorporates Yellowstone Rambus
Interface Technology under a license from Rambus.
1.9 Other Agreements. "Other Agreements" means the SONY License
Agreement and Toshiba License Agreement.
1.10 [*] Product. "[*] Product" means a [*] product with [*] at least
similar to [*] product.
1.11 Broadband Engine. "Broadband Engine" means the [*] designed
pursuant to the [*] for use in [*] Product.
1.12 Confidential Information. "Confidential Information" has the
meaning set forth in Section 4.1 below.
1.13 Redwood RAC. "Redwood RAC" means the input/output cell which is
specified in the current version of the "Redwood Rambus Access Cell
Specification" for the Redwood Rambus Interface Technology.
1.14 Yellowstone RAC. "Yellowstone RAC" means the input/output cell
which is specified in the current version of the "Yellowstone Rambus Access Cell
Specification" for the Yellowstone Rambus Interface Technology.
1.15 RAC Test Chip. "RAC Test Chip" means a prototype Rambus test ASIC
device designed and manufactured by SCE or Toshiba and incorporating a
Yellowstone RAC or Redwood RAC, as applicable.
1.16 Control. "Control" (including "Controlled" and other forms) of an
entity means (i) either (A) beneficial ownership (whether direct, or indirect
through controlled entities or other means) of more than fifty percent (50%) of
the outstanding voting securities of that entity or (B) in the case of an entity
that has no outstanding voting securities, having the right to more than fifty
percent (50%) of the profits of the entity, or having the right in the event of
dissolution to more
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Development Agreement
January 6, 2003
than fifty percent (50%) of the assets of the entity; or (ii) having the
contractual power presently to designate more than fifty percent (50%) of the
directors of a corporation, or in the case of unincorporated entities, of
individuals exercising similar functions. (By way of example only, a company has
indirect Control of a Subsidiary of its Subsidiary).
1.17 Subsidiary. "Subsidiary" of an entity ("Parent") shall mean each
entity Controlled by the Parent, but only so long as such Control exists.
1.18 Affiliate. "Affiliate" of an entity means each entity which
Controls, is Controlled by, or is under common Control with that entity, but
only so long as such Control exists.
1.19 Effective Date. "Effective Date" means the date of signing by the
third party to sign this Agreement, provided that if within fifteen (15) days
after the first party signs this Agreement, the other parties have not signed
this Agreement, the signature of those parties that have signed this Agreement
shall become void unless otherwise agreed in writing.
SECTION 2.
TECHNOLOGY IMPLEMENTATION AND PROMOTION
2.1 Technology Implementation Deliverables. Rambus shall develop and
provide to each of SCE and Toshiba the Yellowstone Rambus Interface Technology
and Redwood Rambus Interface Technology implementation deliverables set forth in
Exhibit A hereto, subject to the fees specified in Section 3.1(a) below. Rambus'
obligation to comply with these milestones and schedule shall be conditioned on
SCE's and Toshiba's having provided to Rambus, in a timely fashion, all
necessary items and information to be provided by SCE and/or Toshiba.
2.2 RACs.
(a) Rambus shall develop the [*] Yellowstone RACs and Redwood
RACs specified in Exhibits B, C and D as the [*] RAC, [*] RAC, [*] RAC, and [*]
RAC in accordance with the procedures set forth in Exhibit E, and substantially
in accordance with the milestones and schedule set forth in Exhibits B, C and D,
in each case subject to the fee specified in Section 3.1(b)(i) or Section
3.1(b)(ii) below, as applicable. Rambus shall provide sufficient technical
personnel with the appropriate skills and experience to accomplish this
development work as described in Exhibits B, C, D and E hereto.
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Development Agreement
January 6, 2003
(b) Upon a joint written request of SCE and Toshiba at any time
until [*], Rambus shall develop the RAC specified in Exhibit F as the [*] RAC,
in accordance with the procedures set forth in Exhibit E, subject to the fee
specified in Section 3.1(b) (iii) below. Rambus shall provide sufficient
technical personnel with the appropriate skills and experience to accomplish
this development work as described in Exhibit E hereto.
(c) Rambus' obligation pursuant to Sections 2.2(a) and (b) above
to develop these RACs, and to comply with any applicable milestones and
schedule, shall be conditioned on SCE's and Toshiba's, and SCE's and Toshiba's
development partner's, having provided to Rambus, in a timely fashion, all items
and information reasonably necessary to be provided by SCE and/or Toshiba, and,
for the avoidance of doubt and without limitation, all Toshiba, SCE or [*]
deliverables included in Exhibits B, C, and D are deemed reasonably necessary
for purposes of this Section 2.2(c). Neither SCE nor Toshiba shall unreasonably
withhold its agreement that additional items and information requested or
specified by Rambus are reasonably necessary for purposes of this Section
2.2(c).
2.3 Yellowstone RMC. Rambus shall develop a memory controller,
implemented in C code, for Yellowstone Rambus DRAMs ("Yellowstone RMC"), subject
to the fee specified in Section 3.1(c) below. Should SCE or Toshiba or [*]
independently or together implement their own version of a memory controller for
Yellowstone DRAMs ("Customer Specific Implementation"), SCE and/or Toshiba agree
to send representative interface traffic between the Customer Specific
Implementation and a Rambus Access Cell to Rambus for verification, subject to
the fee specified in Section 3.1(d) below. Rambus agrees to verify that the
Customer Specific Implementation is compliant with its then latest verification
test suite. Should the design fail to pass this verification test suite, Rambus
will provide a list of nonconformities that need to be corrected. SCE and/or
Toshiba agrees to then send updated representative interface traffic to Rambus
until the Customer Specific Implementation cleanly passes Rambus' verification
test suite.
2.4 Connector Designs. Upon joint written request of SCE and Toshiba
at any time until [*], Rambus shall (i) develop and provide to SCE and Toshiba a
custom connector design for the Redwood Rambus Interface Technology (including a
model and simulation of the impact to the
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Development Agreement
January 6, 2003
v/t budget), and/or (ii) Rambus shall develop a model and simulate the impact to
the v/t budget for a non-Rambus connector design, in each case subject to the
applicable fee specified in Section 3.1(e) below. The timing of this development
shall be subject to reasonable availability of Rambus personnel.
2.5 Package Designs. Upon joint written request of SCE and Toshiba at
any time until [*], Rambus shall develop and provide to SCE and Toshiba one or
more additional package designs, subject to the fees specified in Section 3.1(f)
below. The timing of this development shall be subject to reasonable
availability of Rambus personnel.
2.6 [*] Test Chip. Upon joint written request of SCE and Toshiba at
any time until [*], Rambus shall develop a [*] test chip (as then agreed by the
parties) subject to the fee specified in Section 3.1(g) below.
2.7 Consultation Obligations of Rambus.
(a) Rambus will supply to each of SCE and Toshiba, at no
additional charge, up to [*] person days of engineering support in support of
SCE's and Toshiba's incorporation of Yellowstone Rambus Interface Technology and
Redwood Rambus Interface Technology into integrated circuits. Additional such
engineering support will be billed at [*] dollars [*] per person-day at Rambus'
facility, and at SCE's or Toshiba's facility at [*] dollars [*] per person-day.
(b) SCE or Toshiba will reimburse reasonable travel and living
expenses incurred by Rambus employees in providing support or other services to
such company outside the San Francisco Bay Area.
2.8 Use of Yellowstone Technology and Redwood Technology in Broadband
Engine. Promptly upon execution of this Agreement and the Other Agreements, and
thereafter on condition that Rambus has duly performed all development
activities substantially in accordance with the Program Checkpoint milestones
and associated schedule set forth in Exhibits B, C and D (as such schedule or
exhibit(s) may be amended from time to time by written agreement of the parties)
and has supplied to SCE and Toshiba all deliverables required under this
Agreement (such conditions to apply only if SCE and Toshiba (and SCE's and
Toshiba's development partner) have provided to Rambus, in a timely fashion, all
items and information reasonably necessary to be provided by SCE and/or Toshiba,
and, for the avoidance of doubt and without limitation, all Toshiba, SCE or [*]
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Development Agreement
January 6, 2003
deliverables included in Exhibits B, C, and D are deemed reasonably necessary
for purposes of this Section 2.8; neither SCE nor Toshiba shall unreasonably
withhold its agreement that additional items and information requested or
specified by Rambus are reasonably necessary for purposes of this Section 2.8),
SCE and Toshiba shall use their continuous diligent efforts to incorporate the
Redwood Rambus Interface Technology and the Yellowstone Rambus Interface
Technology into the [*], and to incorporate the Redwood Rambus Interface
Technology and/or the Yellowstone Rambus Interface Technology into the [*] (as
defined under the Toshiba License Agreement and the SONY License Agreement),
such that these integrated circuits are Compatible with the Redwood Rambus
Interface Specification and/or the Yellowstone Rambus Interface Specification,
in each case for use in [*] Product. Rambus' exclusive remedy for a breach of
this Section 2.8 by SCE and/or Toshiba shall be (i) termination of this
Agreement under Section 7.2(a) below and (ii) upon such termination, each of
Toshiba and SCE, in addition to any other payment obligations, shall pay to
Rambus, for each development authorized by SCE and Toshiba (it being understood
and agreed that the developments specified in Sections 2.1, 2.2(a), and 2.3
above are authorized as of the Effective Date), the amounts payable under
Section 3.1 below for the payment milestone immediately following the last
payment milestone actually achieved under Section 3.1.
2.9 Liaison. Each party shall assign one or two qualified individuals,
fluent in English, for purposes of acting as liaison for delivery and receipt of
technical information and support pursuant to this Agreement.
2.10 Use Restrictions. All items provided by Rambus to SCE and Toshiba
pursuant to this Agreement (including without restriction pursuant to Section
2.13 below) are for use by SCE and Toshiba only pursuant to the applicable Other
Agreement with that party, and each of SCE and Toshiba agrees not to use any
such item for any other purpose.
2.11 Disclaimer. ALL RAMBUS INTERFACE TECHNOLOGY, DELIVERABLES,
TECHNICAL INFORMATION AND CONFIDENTIAL INFORMATION PROVIDED BY EITHER PARTY
HEREUNDER ARE PROVIDED "AS IS" WITHOUT WARRANTY OF ANY KIND, EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
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Development Agreement
January 6, 2003
2.12 Certain Termination. Upon any termination or expiration of both
the SONY License Agreement and the Toshiba License Agreement, all of Rambus'
obligations pursuant to this Section 2 shall terminate. Upon any termination or
expiration of only the Toshiba License Agreement, Toshiba shall thereafter no
longer be entitled to receive any deliverables under this Agreement. Upon any
termination or expiration of only the SONY License Agreement, SCE shall
thereafter no longer be entitled to receive any deliverables under this
Agreement.
2.13 Escrow. Rambus shall deposit in escrow, with a mutually agreed
escrow agent in the United States, pursuant to an escrow agreement in the form
attached hereto as Exhibit G (subject only to changes required by the escrow
agent and agreed by Rambus, SCE, and Toshiba), the information and materials
specified in Exhibit 1 to Exhibit G hereto (the "Escrowed Materials"), within
forty-five (45) days after the effective date of such escrow agreement. Unless
earlier terminated, this escrow and the escrow agreement shall terminate upon
the earliest of (A) first commercial availability of a production version of the
Broadband Engine ("BE FCA") or (B) [*] or (C) termination or expiration of this
Agreement, or (D) upon receipt by the escrow agent of a joint written notice
from SCE and Toshiba to terminate the escrow agreement. Rambus will update the
deposited Escrowed Materials monthly at the end of each calendar month. SCE
and/or Toshiba will be entitled to obtain these Escrowed Materials from escrow,
as set forth in the escrow agreement, only if (i) Rambus files a petition in
bankruptcy or insolvency or becomes the subject of any voluntary proceeding
relating to bankruptcy or insolvency, or makes a general assignment for the
benefit of creditors, (ii) a receiver or bankruptcy trustee for all or
substantially all of the property of Rambus has been appointed, (iii) any
voluntary proceedings for the liquidation or winding up of Rambus' business or
for the termination of its corporate charter have been instituted by Rambus
(unless in connection with the sale or other transfer of all or substantially
all of Rambus' business or assets), including but not limited to a general
assignment for the benefit of creditors, (iv) Rambus' board of directors passes
a resolution to dissolve, liquidate or wind up Rambus' business (unless in
connection with the sale or other transfer of all or substantially all of
Rambus' business or assets), including but not limited to a general assignment
for the benefit of creditors or (v) a third party files a petition in bankruptcy
or insolvency against Rambus and that petition is not dismissed within sixty
(60) days after service of the petition on Rambus. All Escrowed Materials shall
be Rambus
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Development Agreement
January 6, 2003
Confidential Information and shall be used only by SCE and/or Toshiba and only
to perform Rambus' development obligations under this Agreement. All technology,
information, items, and materials developed pursuant to this section may be used
by SCE and/or Toshiba only pursuant to such company's Other Agreement with
Rambus. Upon termination of the SONY License Agreement, SCE's right to use
Escrowed Materials shall terminate. Upon termination of the Toshiba License
Agreement, Toshiba's right to use Escrowed Materials shall terminate.
SECTION 3.
DEVELOPMENT FEES
3.1 Development Fees.
(a) SCE and Toshiba shall each pay Rambus, by electronic
transfer, [*] respectively of a noncancellable and nonrefundable development fee
in the amount, in the aggregate, of [*] U.S. dollars (U.S. $[*]) which is in
consideration for the development and delivery of the technology implementation
deliverables as specified in Exhibit A (as well as the [*] associated
deliverables as described in Exhibits B and C) and associated support by Rambus
to enable SCE or Toshiba to manufacture the integrated circuit incorporating the
technology implementation deliverables, as follows:
PAYMENT BY TARGET
PAYMENT DATE TOTAL PAYMENT ---------------------- COMPLETION
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA DATE
------------------------- ------------- ----------- --------- --------------
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
TOTAL: US $[*] US $[*] US $[*]
(b) Except as set forth in Sections 3.1(b)(ii) and (iii) below,
for each RAC developed by Rambus for SCE and Toshiba under Section 2.2 (a) above
(i.e. the [*] RAC, [*] RAC, and [*] RAC), SCE and Toshiba shall pay to Rambus,
by electronic transfer, a noncancellable and
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Development Agreement
January 6, 2003
nonrefundable development fee in the amount, in the aggregate, of [*] dollars
(US $[*]), which is in consideration for the development of the RAC and support
by Rambus to enable SCE and Toshiba to manufacture the integrated circuit
incorporating the RAC, as follows:
PAYMENT FOR EACH BROADBAND PAYMENT FOR EACH ASSOCIATED
TOTAL ENGINE RAC BY CHIP RAC OR OTHER RAC BY TARGET COMPLETION DATE
PAYMENT DATE PAYMENT ---------------------------- ----------------------------- ---------------------------
(SEE SECTION 3.1(h) AMOUNT SCE TOSHIBA SCE TOSHIBA [*] [*] [*]
--------------------- --------- -------------- ------------ ------------ --------------- ------ ---------- -------
[*] US $[*] US $[*] US $[*] US $[*] US $[*] [*] [*] [*]
[*] US $[*] US $[*] US $[*] US $[*] US $[*] [*] [*] [*]
TOTAL US $[*] US $[*] US $[*] US $[*] US $[*]
(ii) For the [*] RAC developed by Rambus for SCE and Toshiba
under Section 2.2(a) above, SCE and Toshiba shall pay to Rambus, by
electronic transfer, a noncancellable and nonrefundable development fee in
the amount, in the aggregate, of [*] dollars (US $[*]), which is in
consideration for the development of this RAC and support by Rambus to
enable SCE and Toshiba to manufacture the integrated circuit incorporating
this RAC, as follows:
PAYMENT BY TARGET
PAYMENT DATE TOTAL PAYMENT ---------------------- COMPLETION
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA DATE
------------------------ ------------- ---------- ---------- -----------
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
TOTAL US $[*] US $[*] US $[*]
(iii) If under Section 2.2(b) above SCE and Toshiba request
that Rambus develop the [*] RAC, SCE and Toshiba shall pay to Rambus, by
electronic transfer, a noncancellable and nonrefundable development fee in
the amount, in the aggregate, of [*] dollars (US $[*]), which is in
consideration for the development of this RAC and support by Rambus to
enable SCE and Toshiba to manufacture the integrated circuit incorporating
this RAC, as follows:
PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
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PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
TOTAL US $[*] US $[*] US $[*]
(c) For the Yellowstone RMC C code model developed by Rambus
under Section 2.3 above for SCE and Toshiba, SCE and Toshiba shall pay to
Rambus, by electronic transfer, a noncancellable and nonrefundable development
fee in the amount, in the aggregate, of [*] dollars (US $[*]), which is in
consideration for the development of the Yellowstone RMC and support by Rambus
to enable SCE and Toshiba to manufacture the integrated circuit incorporating
the Yellowstone RMC, as follows:
PAYMENT BY TARGET
PAYMENT DATE TOTAL PAYMENT ---------------------- COMPLETION
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA DATE
------------------------ ------------- ---------- ---------- -----------
[*] US $[*] US $[*] US $[*] [*]
[*] US $[*] US $[*] US $[*] [*]
TOTAL US $[*] US $[*] US $[*]
(d) For each Customer Specific Implementation developed by SCE,
Toshiba (or [*] as a sublicensee), as set forth in Section 2.3 above, SCE and
Toshiba shall pay to Rambus, by electronic transfer, a noncancellable and
nonrefundable verification fee in the amount, in the aggregate, of [*] dollars
(US $[*]), as follows:
PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
TOTAL US $[*] US $[*] US $[*]
(e) (i) If requested by SCE and Toshiba under clause (i) of
Section 2.4 above, for Redwood Rambus Interface Technology custom connector
design developed by Rambus, SCE and Toshiba shall pay to Rambus, by electronic
transfer, a noncancellable and nonrefundable development fee in the amount, in
the aggregate, of [*] dollars (US $[*]), which is in consideration
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Development Agreement
January 6, 2003
for the development of the custom connector design and support by Rambus to
enable SCE and Toshiba to use the connector design, as follows:
PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
TOTAL US $[*] US $[*] US $[*]
(ii) If requested by SCE and Toshiba under clause (ii) of
Section 2.4 above, for each non-Rambus connector design for which Rambus
develops a model and simulates the impact to the v/t budget, SCE and
Toshiba shall pay to Rambus, by electronic transfer, a noncancellable and
nonrefundable development fee in the amount, in the aggregate of [*]
dollars (US $[*]), which is in consideration for development of this model
and simulation and support by Rambus to enable SCE and Toshiba to use the
connector design, as follows:
PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
TOTAL US $[*] US $[*] US $[*]
(f) If requested by SCE and Toshiba under Section 2.5 above, for
each package design developed by Rambus, SCE and Toshiba shall pay to Rambus, by
electronic transfer, a noncancellable and nonrefundable development fee in the
amount, in the aggregate, of [*] dollars (US $[*]), which is in consideration
for the development of the package design and support by Rambus to enable SCE
and Toshiba to implement the package design, as follows:
PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
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Development Agreement
January 6, 2003
PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
TOTAL US $[*] US $[*] US $[*]
(g) If requested by SCE and Toshiba under Section 2.6 above, for
the [*] test chip developed by Rambus, SCE and Toshiba shall pay to Rambus, by
electronic transfer, a noncancellable and nonrefundable development fee in the
amount, in the aggregate, of [*] dollars (US $[*]), which is in consideration
for the development of the [*] test chip and support by Rambus to enable SCE and
Toshiba to implement the design, as follows:
PAYMENT BY
PAYMENT DATE TOTAL PAYMENT ----------------------
(SEE SECTION 3.1(H)) AMOUNT SCE TOSHIBA
------------------------------------ ------------- ---------- ----------
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
[*] US $[*] US $[*] US $[*]
TOTAL US $[*] US $[*] US $[*]
(h) All payment dates specified in this Section 3.1 are the
dates Rambus may invoice the amount payable, which invoices shall be due and
payable within thirty (30) days after the invoice date.
(i) The development fees payable pursuant to this Agreement
shall not be recoupable against any royalty or other payment owed by SCE or
Toshiba.
3.2 Withholding Taxes. In the event the Japanese government
imposes any withholding tax upon any payment due to Rambus hereunder by SCE or
Toshiba, such tax shall be borne by Rambus. SCE and/or Toshiba, as applicable,
agrees to assist Rambus in any intervention necessary to exempt payments such as
development fees from tax, and SCE and/or Toshiba, as applicable, agrees to make
all necessary filings, and take such other actions, as are necessary to minimize
the tax rate. SCE and Toshiba shall withhold the amount of any such taxes levied
on such payments by the Japanese government, shall promptly effect payment of
the taxes so withheld to the Japanese tax office, and promptly send to Rambus
the official certificate of such payment to enable Rambus to support a claim for
a foreign tax credit with respect to any such taxes so
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Development Agreement
January 6, 2003
withheld and paid against income taxes which may be levied by the United States
government. SCE or Toshiba (as applicable) shall promptly provide Rambus with
copies of tax receipts showing that any such required payments have been made by
such party.
SECTION 4.
CONFIDENTIAL INFORMATION
4.1 Confidential Information. The term "Confidential Information"
shall mean any information disclosed by one party to another, pursuant to this
Agreement or otherwise, 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. Confidential Information may also
include oral information disclosed by one party to another provided that such
information is designated as confidential at the time of disclosure and reduced
to a written summary by the disclosing party, within thirty (30) days after its
oral disclosure, which is marked in a manner to indicate its confidential nature
and delivered to the receiving party. In addition:
(i) Toshiba acknowledges that it may receive, from SCE
or [*], Rambus information similarly identified as confidential to Rambus,
and Toshiba agrees to treat all such information as Rambus Confidential
Information in compliance with this Section 4.
(ii) Toshiba acknowledges that it may receive, from
Rambus, SCE information similarly identified as confidential to SCE, and
Toshiba agrees to treat all such information as SCE confidential
information in compliance with the [*] Agreement.
(iii) Toshiba acknowledges that it may receive, from
Rambus or SCE, [*] information similarly identified as confidential to [*],
and Toshiba agrees to treat all such information as [*] confidential
information in compliance with the [*] Agreement.
(iv) SCE acknowledges that it may receive, from Toshiba
or [*], Rambus information similarly identified as confidential to Rambus,
and SCE agrees to treat all such information as Rambus Confidential
Information in compliance with this Section 4.
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Development Agreement
January 6, 2003
(v) SCE acknowledges that it may receive, from Rambus,
Toshiba information similarly identified as confidential to Toshiba, and
SCE agrees to treat all such information as Toshiba confidential
information in compliance with the [*] Agreement.
(vi) SCE acknowledges that it may receive, from Rambus,
[*] information similarly identified as confidential to [*], and SCE agrees
to treat all such information as [*] confidential information in compliance
with the [*] Agreement.
(vii) Rambus acknowledges that it may receive, from SCE or
[*], Toshiba information similarly identified as confidential to Toshiba,
and Rambus agrees to treat all such information as Toshiba Confidential
Information in compliance with this Section 4.
(viii) Rambus acknowledges that it may receive, from
Toshiba, SCE information similarly identified as confidential to SCE, and
Rambus agrees to treat all such information as SCE Confidential Information
in compliance with this Section 4.
(ix) Rambus acknowledges that it may receive, from
Toshiba, [*] information similarly identified as confidential to [*], and
Rambus agrees to treat all such information as [*] confidential information
in compliance with the November 18, 2002 "CONFIDENTIAL NONDISCLOSURE
AGREEMENT" between Rambus and [*].
(x) Subject to paragraphs (i) and (iv) hereinabove, SCE
and Toshiba agree that any direct exchanges of such parties' information
between such parties will be governed by the [*] Agreement.
4.2 Confidentiality. Each party shall treat as confidential all
Confidential Information of the other parties, shall not use such Confidential
Information except as follows or as may be expressly set forth elsewhere in this
Agreement or as otherwise authorized in writing: Rambus shall use Confidential
Information of SCE or Toshiba only to perform its obligations or exercise rights
under this Agreement or the Other Agreements; and each of SCE and Toshiba shall
use Confidential Information of Rambus only to perform its obligations or
exercise rights under this Agreement or the Other Agreements. Each party shall
limit disclosure to those of its employees with a need to know for the purposes
of this Agreement, shall implement reasonable procedures to prohibit the
disclosure, unauthorized duplication, misuse or removal of the other parties'
Confidential Information and shall
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Development Agreement
January 6, 2003
not disclose such Confidential Information to any third party except properly
sublicensed Subsidiaries (and, if sublicensed by SCE under the SONY License
Agreement, [*]). Without limiting the foregoing, each of the parties shall use
at least the same procedures and degree of care which it uses to prevent the
disclosure of its own confidential information of like importance to prevent the
disclosure of Confidential Information disclosed to it by another party under
this Agreement, but in no event less than reasonable care. Each party's
obligations pursuant to this section with respect to any particular Confidential
Information shall expire five (5) years after BE FCA (as defined in Section 2.13
above), except for Rambus' layout databases and schematics for Redwood Rambus
Interface Technology and Yellowstone Rambus Interface Technology and for
Toshiba's process information, design rules, spice models, design guidelines,
DRC, LVS rule files, layout databases and schematics for Licensed Rambus ICs,
which shall be kept in confidence for ten (10) years after such BE FCA. SCE and
Toshiba will provide to Rambus prompt written notice of such BE FCA.
4.3 Exceptions. Notwithstanding the above, no party shall have
liability to another with regard to any Confidential Information of the other
which:
(i) was generally known and available at the time it was
disclosed or becomes generally known and available through no fault of the
receiver;
(ii) was known to the receiver, without restriction, at
the time of disclosure as shown by the files of the receiver in existence
at the time of disclosure;
(iii) is disclosed with the prior written approval of the
discloser;
(iv) was independently developed by the receiver without
any use of the Confidential Information and by employees or other agents of
the receiver who have not been exposed to the Confidential Information,
provided that the receiver can demonstrate such independent development by
documented evidence prepared contemporaneously with such independent
development;
(v) becomes known to the receiver, without restriction,
from a source other than the discloser without breach of this Agreement by
the receiver and otherwise not in violation of the discloser's rights; or
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Development Agreement
January 6, 2003
(vi) is inherently disclosed in the use, lease, sale or
other distribution of any available product by the receiving party or any
of its Subsidiaries.
In addition, each party shall be entitled to disclose any other party's
Confidential Information to the extent such disclosure is requested by the order
or requirement of a court, administrative agency, or other governmental body;
provided, that the party required to make the disclosure shall provide prompt,
advance notice thereof to the disclosing party to enable the disclosing party to
seek a protective order or otherwise prevent such disclosure. Further, with the
prior written consent of the disclosing party, which shall not be unreasonably
withheld, each party shall have the right at any time to disclose portions of
the disclosing party's Confidential Information to its customers and
distributors on a need-to-know basis only to the extent deemed necessary by such
party to market and sell products to such customers and distributors, it being
understood that any such consent by the disclosing party may be limited to such
disclosure under a confidentiality agreement.
4.4 Residuals. Notwithstanding anything else in this Agreement,
however, each party's employees shall be entitled to use, without restriction
(subject to the above nondisclosure obligations, but not subject to the above
use restriction) or royalty and for any purpose, the other parties' Confidential
Information retained in such employees' unaided memory as a result of rightful
access to another party's Confidential Information pursuant to this Agreement,
subject only to the other parties' patents, copyrights, or mask work rights. An
employee's memory will be considered to be unaided if the employee has not
intentionally memorized the Confidential Information for the purposes of
retaining it and subsequently using or disclosing it. Nothing in this Agreement
will restrict any party's right to assign or reassign its employees, including
without limitation those who have had access to the other parties' Confidential
Information, to any project in its discretion.
4.5 Additional Responsibilities. Each party shall obtain the execution
of confidentiality agreements with its Subsidiaries, employees, agents,
contractors, and consultants having access to Confidential Information of the
other parties, and shall diligently enforce such agreements, or shall be
responsible for the actions of such Subsidiaries, employees, agents and
consultants in this respect.
4.6 Subsidiaries. "SCE" or "Toshiba" in Sections 4.1 and 4.2 above
shall include (i) in the case of Toshiba, Toshiba's Subsidiaries, and (ii) in
the case of SCE, SONY and its
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Development Agreement
January 6, 2003
Subsidiaries, properly licensed or sublicensed under the applicable Other
Agreement with Rambus. [*] in Sections 4.1 and 4.2 above shall include such
company's Subsidiaries properly sublicensed under such company's sublicense
agreement with SCE.
SECTION 5.
INTELLECTUAL PROPERTY OWNERSHIP AND INDEMNIFICATION
5.1 Ownership. Rambus shall own all right, title and interest in the
Yellowstone Rambus Interface Technology and the Redwood Rambus Interface
Technology and all upgrades, enhancements and improvements thereto made by
Rambus. Rambus shall own all Yellowstone RAC, Redwood RAC, and Yellowstone RMC
implementation deliverables to be developed and delivered by Rambus hereunder
for each particular semiconductor manufacturing process ("Process"), including
without limitation any modifications prepared by Rambus based upon input or
suggestions from SCE, Toshiba, or their joint development partner, provided only
that SCE and/or Toshiba and/or their joint development partner, as applicable,
shall (i) own all Customer Specific Implementations developed by SCE and/or
Toshiba, (ii) own those elements unique to implementation in such party's
applicable Process, and (iii) retain its ownership of the Process. It is
understood that all such deliverables owned by Rambus are licensed to SCE and
Toshiba under the Other Agreements. Nothing in this Agreement shall prevent or
restrict Rambus from developing similar RACs or RMCs for or with third parties,
including use by Rambus of information developed or learned by Rambus in
connection with the development of the specific Yellowstone RAC(s), Redwood
RAC(s), or Yellowstone RMCs hereunder, except for Confidential Information of
SCE or Toshiba (including those as set forth in clauses (i), (ii), and (iii)
above). SCE or Toshiba, as applicable, shall own all right, title and interest
in all technical information which is provided by SCE or Toshiba to Rambus
hereunder. The parties acknowledge and agree that (A) there have been no joint
developments with Rambus or joint inventions with Rambus (collectively, "Joint
Developments") prior to the date of this Agreement, and (B) the parties do not
anticipate any Joint Developments pursuant to this Agreement, and there shall be
no such Joint Developments unless so agreed in writing by the parties.
5.2 Rambus Indemnification Disclaimer. Rambus disclaims and shall have
no obligation of defense, contribution, or indemnity with respect to any actual
or alleged intellectual
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Development Agreement
January 6, 2003
property infringement with respect to any Rambus Interface Technology, Rambus
Interface Specification, or arising out of this Agreement. Rambus shall have no
liability arising out of any such actual or alleged intellectual property
infringement. SCE and Toshiba, however, shall promptly notify Rambus, in
writing, of each such infringement claim of which such company becomes aware,
and such company shall cooperate with Rambus if Rambus desires to intervene in
any such infringement action against Toshiba.
5.3 Toshiba Indemnification Disclaimer. Toshiba disclaims and shall
have no obligation of defense, contribution, or indemnity with respect to any
actual or alleged intellectual property infringement arising out of this
Agreement. Toshiba shall have no liability arising out of any such actual or
alleged intellectual property infringement.
5.4 SCE Indemnification Disclaimer. SCE disclaims and shall have no
obligation of defense, contribution, or indemnity with respect to any actual or
alleged intellectual property infringement arising out of this Agreement. SCE
shall have no liability arising out of any such actual or alleged intellectual
property infringement.
SECTION 6.
LIMITATION OF LIABILITY
IN NO EVENT WILL A PARTY'S LIABILITY ARISING OUT OF THIS AGREEMENT
(EXCEPT FOR BREACHES OF SECTION 4 OR INFRINGEMENT OF THE OTHER PARTY'S
INTELLECTUAL PROPERTY RIGHTS) EXCEED THE FEES AND OTHER AMOUNTS RECEIVED BY OR
PAYABLE TO RAMBUS HEREUNDER, PROVIDED, HOWEVER, THAT THIS MAXIMUM LIABILITY OF
TOSHIBA AND SONY SHALL BE IN ADDITION TO TOSHIBA'S AND SONY'S OBLIGATION TO PAY
ALL FEES AND OTHER AMOUNTS PAYABLE, BUT UNPAID, BY TOSHIBA OR SONY. EXCEPT FOR
INFRINGEMENT OF THE OTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS OR BREACHES OF
SECTION 4 HEREOF, IN NO EVENT SHALL ANY PARTY BE LIABLE FOR ANY SPECIAL,
CONSEQUENTIAL, INDIRECT, OR INCIDENTAL DAMAGES, HOWEVER CAUSED, ON ANY THEORY OF
LIABILITY AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF
SUCH DAMAGES, ARISING IN ANY WAY OUT OF
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Development Agreement
January 6, 2003
THIS AGREEMENT OR THE DESIGNS, TECHNOLOGY OR PRODUCTS LICENSED OR OTHERWISE
PROVIDED PURSUANT TO THIS AGREEMENT.
SECTION 7.
TERM AND TERMINATION
7.1 Term. The term of this Agreement shall commence as of the
Effective Date and, unless and until terminated hereunder, shall continue until
the earlier of (i) [*] or (ii) termination of both Other Agreements.
7.2 Termination.
(a) If either SCE or Toshiba defaults in the performance of any
material obligation hereunder and if any such default is not corrected within
forty-five (45) days after the defaulting party receives written notice thereof
from Rambus, then Rambus, at its option, may, in addition to any other remedies
it may have, terminate this Agreement, provided that so long as both of SCE and
Toshiba are using their continuous diligent efforts to perform their development
and cooperation obligations under this Agreement, Rambus shall not be entitled
to terminate this Agreement for SCE's or Toshiba's failure to complete such
obligation according to the schedule set forth in Exhibits B, C and D (as such
schedule may be amended from time to time by written agreement of the parties).
In the event of such a termination by Rambus pursuant to this Section 7.2 (a),
each of SCE and Toshiba, in addition to any other payment obligations (including
without limitation any additional payment obligations under Section 2.8 above),
shall pay to Rambus the amounts due and payable under Section 3.1 above as a
result of each event or milestone actually achieved prior to the date of such
termination.
(b) If Rambus defaults in the performance of any material
obligation hereunder and if any such default is not corrected within forty-five
(45) days after Rambus receives joint written notice thereof from both of SCE
and Toshiba, then SCE and Toshiba, if they both so agree, at their option, may,
in addition to any other remedies they may have, jointly terminate this
Agreement, provided that SCE's and Toshiba's right to terminate this Agreement
for Rambus' failure to complete any milestone in Exhibits B, C and D according
to the schedule set forth in Exhibits B, C and D (as such schedule may be
amended from time to time by written agreement of the parties) shall be limited
to a failure by Rambus to complete the milestone as required by Section
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Development Agreement
January 6, 2003
2.2 above and shall be limited to the milestones denoted in Table 2 of each of
Exhibits B, C, and D as "subject to termination under Section 7.2(b)."
(c) Rambus may terminate this Agreement forthwith effective upon
written notice to SCE and Toshiba in the event that (i) SCE or Toshiba files a
petition in bankruptcy or insolvency or becomes the subject of any voluntary
proceeding relating to bankruptcy or insolvency, or makes a general assignment
for the benefit of creditors, (ii) a receiver or bankruptcy trustee for all or
substantially all of the property of SCE or Toshiba has been appointed, (iii)
any voluntary proceedings for the liquidation or winding up of SCE's or
Toshiba's business or for the termination of its corporate charter have been
instituted by such party, (iv) SCE's or Toshiba's board of directors passes a
resolution to dissolve, liquidate or wind up such party's business, or (v) a
third party files a petition in bankruptcy or insolvency against SCE or Toshiba
and that petition is not dismissed within sixty (60) days after service of the
petition on such party.
(d) SCE and Toshiba, if they both so agree, may jointly
terminate this Agreement forthwith effective upon written notice to Rambus in
the event that (i) Rambus files a petition in bankruptcy or insolvency or
becomes the subject of any voluntary proceeding relating to bankruptcy or
insolvency, or makes a general assignment for the benefit of creditors, (ii) a
receiver or bankruptcy trustee for all or substantially all of the property of
Rambus has been appointed, (iii) any voluntary proceedings for the liquidation
or winding up of Rambus' business or for the termination of its corporate
charter have been instituted by Rambus (unless in connection with the sale or
other transfer of all or substantially all of Rambus' business or assets), (iv)
Rambus' board of directors passes a resolution to dissolve, liquidate or wind up
Rambus' business (unless in connection with the sale or other transfer of all or
substantially all of Rambus' business or assets), or (v) a third party files a
petition in bankruptcy or insolvency against Rambus and that petition is not
dismissed within sixty (60) days after service of the petition on Rambus.
(e) For the avoidance of doubt, neither Toshiba nor SCE alone
may terminate this Agreement under paragraphs (b) or (d) hereinabove.
7.3 Survival1. Upon any termination or expiration of this Agreement,
all amounts due or payable to Rambus as a result of events prior to the date of
termination or expiration shall remain due and payable. The provisions of
Sections 2.11 (Disclaimer), 3.2 (Withholding Taxes), 4
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Development Agreement
January 6, 2003
(Confidential Information), 5 (Intellectual Property Ownership and
Indemnification), 6 (Limitation of Liability), 8 (Governing Law; Dispute
Resolution), and 9 (Miscellaneous) shall survive any expiration or termination
of this Agreement for any reason. Each party shall return to the other parties
all of such other parties' Confidential Information, and all partial or complete
copies thereof, except such information or items as the receiving party
reasonably requires to exercise surviving rights under this Agreement, or rights
under Other Agreements.
SECTION 8.
GOVERNING LAW, DISPUTE RESOLUTION
8.1 Governing Law. To the extent Rambus is concerned, this Agreement
shall be governed by and interpreted in accordance with the laws of the State of
California, U.S.A., with the exclusion of laws on punitive, exemplary or similar
damages unless a statute requires that compensatory damages be increased in a
specific manner, and without reference to conflict of laws principles.
8.2 Dispute Resolution.
(a) To the extent Rambus is concerned and except for U.S.
International Trade Commission proceedings, all disputes and claims arising out
of this Agreement shall be subject to the exclusive jurisdiction and venue of
the California state courts and the United States District Court for the
Northern District of California, and each of Toshiba and SCE agrees and consents
to the personal and exclusive jurisdiction of these courts. The parties hereby
expressly waive any right to a jury trial hereunder and agree that any
proceeding hereunder shall be tried by a judge without a jury.
(b) To the extent permissible under Japanese law, any judgment
of any United States court against SCE and/or Toshiba shall entitle Rambus to a
corresponding Japanese judgment and shall be enforceable against SCE and/or
Toshiba, as applicable, in Japan with the same force and effect as a judgment of
any Japanese court of competent jurisdiction.
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Development Agreement
January 6, 2003
SECTION 9.
MISCELLANEOUS
9.1 Confidentiality of Agreement. Each party agrees that, after the
announcement of the Other Agreements, each party shall be entitled to disclose
the general nature of this Agreement but that the terms and conditions of this
Agreement shall be treated as confidential information and that no party will
disclose the terms or conditions to any third party without the prior written
consent of all of the other parties, provided, however, that each party may
disclose the terms and conditions of this Agreement:
(i) as required by any court or other governmental body;
(ii) as otherwise required by law;
(iii) as otherwise may be required by applicable
securities and other law and regulation, including to legal and financial
advisors in their capacity of advising a party in such matters, provided
that Rambus will provide notice to Toshiba and to SCE prior to any such
disclosure required by the U.S. Securities and Exchange Commission, such
notice to include a copy of the proposed disclosure, and Rambus will
consider Toshiba's and SCE's timely input with respect to the disclosure;
(iv) in confidence, to legal counsel of the parties,
accountants, and other professional advisors;
(v) in confidence, to banks, investors and other
financing sources and their advisors;
(vi) in connection with the enforcement of this Agreement
or rights under this Agreement;
(vii) 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
limiting disclosure to outside counsel and (B) the disclosing party informs
the other parties in writing at least ten (10) business days in advance of
the disclosure and shall discuss the nature and contents of the disclosure,
in good faith, with the other parties; or
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(viii) in confidence, in connection with an actual or
prospective merger or acquisition or similar transaction.
9.2 Assignment. No party may transfer, assign or delegate this
Agreement or any of its licenses, rights or duties under this Agreement, by
operation of law or otherwise, without the prior written consent of the other
party, except (i) SCE and Toshiba may subcontract integrated circuit design to
any third party as set forth in the Other Agreements, and (ii) Rambus may
transfer and assign this Agreement to any person or entity into which it has
merged or which has otherwise succeeded to all or substantially all of its
business and assets pertaining to the technology licensed hereunder. In the
event of any such transfer or assignment or attempted transfer or assignment by
SCE or Toshiba, then this Agreement shall automatically terminate. Any attempted
transfer or assignment in violation of this section shall be void.
Notwithstanding the foregoing, if SCE or Toshiba [*] so as to [*], then each of
SCE and Toshiba shall be entitled to [*]. Also, notwithstanding the foregoing,
SCE shall be entitled to assign this Agreement to SONY Corporation or to a
Subsidiary of SONY Corporation in connection with a transfer of all or
substantially all of SCE's business and assets to such assignee. This Agreement
shall be binding on the parties hereto and any of their permitted successors and
assigns.
9.3 No Conflicts. Each party represents and warrants, on a continuing
basis, to each other party that (i) the execution, delivery and performance by
such party of this Agreement and each other agreement, document, or instrument
now or hereafter executed and delivered by such party pursuant thereto or in
connection herewith will not conflict with or result in any breach of, or
constitute a default under, any commitment, contract or other agreement,
instrument or undertaking to which such party is a party or by which any of its
property is bound, and (ii) such party will not enter into any such commitment,
contract or other agreement, instrument or undertaking.
9.4 Authority. Each party represents 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.
9.5 Notices. All notices and other communications required or
permitted hereunder shall be in writing and shall be mailed by first class air
mail (registered or certified if available), postage prepaid, or otherwise
delivered by hand, by messenger or by telecommunication, addressed
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Development Agreement
January 6, 2003
to the addresses first set forth above or at such other address furnished with a
notice in the manner set forth herein. Such notices shall be deemed to have been
served when delivered or, if delivery is not accomplished by reason of some
fault of the addressee, when tendered. All notices shall be in English.
9.6 Electronic Transfers. All payments from Toshiba or SCE which are
required herein to be sent to Rambus via electronic transfer shall be made in
U.S. dollars via the Federal Reserve Bank of San Francisco for the credit of:
Rambus Inc., Account #[*]
[*]
[*]
[*]
[*]
9.7 Export Controls.
(a) Each of the parties understands and acknowledges that the
other parties are subject to regulation by agencies of the U.S. and Japanese
governments, including the U.S. Department of Commerce, which prohibit export or
diversion of certain products and technology to certain countries. Any and all
obligations of any party to provide technology, technical assistance, any media
in which any of the foregoing is contained, training, technical assistance, and
related technical data (collectively, "Data") shall be subject in all respects
to such United States and Japanese laws and regulations as shall from time to
time govern the license and delivery of technology and products abroad by
persons subject to the jurisdiction of the United States or Japan, as
applicable, including the U.S. Export Administration Act of 1979, as amended,
any successor legislation, and the Export Administration Regulations issued by
the Department of Commerce, International Trade Administration, Bureau of Export
Administration. Each party agrees to cooperate with each other party, including
without limitation, providing required documentation, in order to obtain export
licenses or exemptions therefrom. Each party warrants that (i) it will comply in
all respects with the export and reexport restrictions set forth in the export
license (if necessary) for every item shipped to such party, (ii) it will not
use any information furnished hereunder by any other party for any purpose to
develop and/or manufacture nuclear, chemical, biological weapons and/or
missiles, and (iii) it will otherwise comply with the Export Administration
Regulations or other United States or Japanese, as applicable, laws and
regulations in effect from time to time.
-25- CONFIDENTIAL
Development Agreement
January 6, 2003
(b) Without in any way limiting the provisions of this
Agreement, (i) each of SCE and Toshiba agrees that unless prior written
authorization is obtained from the Bureau of Export Administration or the Export
Administration Regulations explicitly permit the reexport without such written
authorization, it will not export, reexport, or transship, directly or
indirectly, any Rambus Data disclosed or provided to such company or the direct
product of such Data to country groups D-1 or E-2 (as defined in the Export
Administration Regulations and which currently consist of Albania, Armenia,
Azerbaijan, Belarus, Bulgaria, Cambodia, China (PRC), Cuba, Estonia, Georgia,
Kazakhstan, Kyrgyzstan, Laos, Latvia, Libya, Lithuania, Moldavia, Mongolia,
North Korea, Romania, Russia, Tajikistan, Turkmanistan, Ukraine, Uzbekistan, and
Vietnam, or to Iran, Iraq, Sudan, or Syria, and (ii) each of the parties agrees
that unless prior written authorization is obtained from, as applicable, the
Bureau of Export Administration or the applicable Japanese agency, or the Export
Administration Regulations or applicable Japanese regulations, as applicable,
explicitly permit the reexport without such written authorization, it will not
export, reexport, or transship, directly or indirectly, any Data disclosed or
provided to such company or the direct product of such Data to any other country
as to which the U.S. or Japanese governments, as applicable, has placed an
embargo against the shipment of products, software, or technology which is in
effect during the term of this Agreement.
(c) Without limiting the foregoing provisions of this Section
9.7, (i) Rambus agrees to comply with U.S. export laws and regulations with
respect to Data disclosed to Rambus by Toshiba or SCE but originating in the
U.S., and (ii) SCE and Toshiba agree to comply with Japanese export laws and
regulations with respect to Data disclosed to such company by Rambus but
originating with the other such company.
9.8 Partial Invalidity. If any paragraph, provision, or clause thereof
in this Agreement shall be found or be held to be invalid or unenforceable in
any jurisdiction in which this Agreement is being performed, the remainder of
this Agreement shall be valid and enforceable and the parties shall negotiate,
in good faith, a substitute, valid and enforceable provision which most nearly
effects the parties' intent in entering into this Agreement.
9.9 No Third Party Beneficiaries. This Agreement has been made and is
made solely for the benefit of Rambus, Toshiba and SCE and their respective
permitted successors and permitted
-26- CONFIDENTIAL
Development Agreement
January 6, 2003
assigns. Nothing in this Agreement is intended to confer any rights or remedies
under or by reason of this Agreement on any person or entity other than the
parties to this Agreement and their respective successors and permitted assigns.
Nothing in this Agreement is intended to relieve or discharge the obligation or
liability of any third person or entity to any party to this Agreement.
9.10 Counterparts. This Agreement may be executed in three (3) or more
counterparts, all of which, taken together, shall be regarded as one and the
same instrument.
9.11 Relationship of Parties. The parties hereto are independent
contractors. Nothing contained herein or done in pursuance of this Agreement
shall constitute either party the agent of the other party for any purpose or in
any sense whatsoever, or constitute the parties as partners or joint venturers.
9.12 Modification. No alteration, amendment, waiver, cancellation or
any other change in any term or condition of this Agreement shall be valid or
binding on either party unless the same shall have been mutually assented to in
writing by both parties.
9.13 Waiver. The failure of either party to enforce at any time the
provisions of this Agreement, or the failure to require at any time performance
by the other party of any of the provisions of this Agreement, shall in no way
be construed to be a present or future waiver of such provisions, nor in any way
affect the right of either party to enforce each and every such provision
thereafter. The express waiver by either party of any provision, condition or
requirement of this Agreement shall not constitute a waiver of any future
obligation to comply with such provision, condition or requirement.
9.14 Government Approvals. Each of SCE and Toshiba represents and
warrants that no consent or approval with any governmental authority in Japan is
required in connection with the valid execution and performance of this
Agreement except as may be required to transfer technical information to Rambus
under this Agreement. Rambus represents and warrants that no consent or approval
with any governmental authority in the United States is required in connection
with the valid execution and performance of this Agreement except as may be
required to transfer technical information to Toshiba under this Agreement. Each
party shall be responsible for any required filings of this Agreement with the
Japanese (as to SCE and Toshiba) or United States (as to Rambus) government
agencies.
-27- CONFIDENTIAL
Development Agreement
January 6, 2003
9.15 Section Headings and Language. The section headings contained in
this Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. The English language shall
govern the meaning and interpretation of this Agreement.
9.16 Ambiguities. Any rule of construction to the effect that
ambiguities are to be resolved against the drafting party shall not apply in
interpreting this Agreement.
9.17 Force Majeure. The parties hereto shall be excused for any delay
in performing any obligation under Section 2 hereunder to the extent such delay
is caused by (i) delay of another party, or (ii) 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 reasonable control of the parties.
9.18 Currency. All dollar amounts specified herein are in U.S.
dollars, and all payments pursuant to this Agreement shall be in U.S. dollars.
9.19 Entire Agreement. The terms and conditions herein contained
constitute the entire agreement between the parties and supersede all previous
agreements and understandings, whether oral or written, between the parties
hereto with respect to the subject matter hereof and no agreement or
understanding varying or extending the same shall be binding upon either party
hereto unless in a written document signed by the party to be bound thereby.
-28- CONFIDENTIAL
Development Agreement
January 6, 2003
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be signed by duly authorized officers or representatives as of the date first
above written.
RAMBUS INC. SONY COMPUTER ENTERTAINMENT INC.
By: /s/ ▇▇▇▇▇ ▇▇▇▇ By: /s/ ▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------- ---------------------------------
Name: ▇▇▇▇▇ ▇▇▇▇ Name: ▇▇▇ ▇▇▇▇▇▇▇▇
Title: CEO Title: CEO & President
Date: Jan. 6, 2003 Date: Jan. 6, 2003
TOSHIBA CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------
Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Corporate Senior Vice President
President & CEO, Semiconductor
Company
Date: January 6, 2003
-29- CONFIDENTIAL
EXHIBIT A
TECHNOLOGY IMPLEMENTATION DELIVERABLES
I.Yellowstone
The following deliverables to enable SCE and/or Toshiba, as
applicable, to [*] and [*] for the following interconnects:
A. [*]
The [*] for technology implementation deliverables are in
consideration of Rambus performing the following work for each [*] and
[*] designed by Rambus for SCE and/or Toshiba:
1. [*]
2. [*]
3. [*]
4. [*]
5. [*]
* The [*], as designed, may be used for [*], but some [*] may be necessary (such
as [*]) because the [*] for the [*] does not assume [*].
II. Redwood:
The following deliverables to enable SCE and/or Toshiba, as
applicable, to [*] and [*] for the following interconnects:
A. [*]
B. [*]
The [*] for technology implementation deliverables are in
consideration of Rambus performing the following work for each [*] and [*]
designed by Rambus for SCE and/or Toshiba:
1. [*]
2. [*]
3. [*]
4. [*]
* The [*], as designed, may be used for [*], but some [*] may be necessary (such
as [*]) because the [*] for the [*] does not assume [*].
-1-
EXHIBIT B
TABLE 1: DETAILED [*] RAC AND [*] RAC DELIVERABLES AND MILESTONES
----------------- ------- -------------------------------
DESCRIPTION DATE RESPONSIBILITY
-------------------------------------------- ------------- --------------
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*]
[*]
[*]
[*]
[*] RAC AND [*] RAC DELIVERABLES AND MILESTONE DEFINITIONS
[*]
[*]
-2-
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
.. [*]
[*]
[*]
[*]
[*]
[*]
.. [*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
-3-
[*]
.. [*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
.. [*]
[*]
[*]
[*]
.. [*]
[*]
[*]
[*]
.. [*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
-4-
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
. [*]
[*]
. [*]
. [*]
. [*]
-5-
TABLE 2: [*] RAC AND [*]RAC PROGRAM CHECKPOINTS
The Rambus program checkpoints listed in the table below are subject to
termination under Section 7.2(b). These milestones and/or schedule may be
modified only by written agreement of all three parties. Although Rambus'
performance is generally dependent on timely performance of all obligations by
SCE, Toshiba, and/or [*], the non-Rambus program checkpoints listed below are
critical dependencies. Without limitation, if those critical dependencies are
not delivered to the agreed upon schedule, the parties specifically agree that
Rambus' deliverable date obligation will be adjusted (normally will slip a
business day for business day) accordingly.
PROGRAM CHECKPOINTS DATE RESPONSIBILITY
--------------------------------------------------------------------------------
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*]
[*]
[*] RAC AND [*] RAC PROGRAM CHECKPOINT DEFINITIONS
.. [*]
[*]
[*]
.. [*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
[*]
-6-
[*]
[*]
[*]
.. [*]
[*]
[*]
[*]
-7-
EXHIBIT C
TABLE 1: DETAILED [*] RAC DELIVERABLES AND MILESTONES
DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] V [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*]
[*]
[*]
[*]
[*]
-8-
TABLE 2: [*] RAC PROGRAM CHECKPOINTS
The Rambus program checkpoints listed in the table below are subject to
termination under Section 7.2(b). These milestones and/or schedule may be
modified only by written agreement of all three parties. Although Rambus'
performance is generally dependent on timely performance of all obligations by
SCE, Toshiba, and/or [*], the non-Rambus program checkpoints listed below are
critical dependencies. Without limitation, if those critical dependencies are
not delivered to the agreed upon schedule, the parties specifically agree that
Rambus' deliverable date obligation will be adjusted (normally will slip a
business day for business day) accordingly.
PROGRAM CHECKPOINTS TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*]
[*]
[*]
[*]
-9-
EXHIBIT D
TABLE 1: DETAILED [*] RAC DELIVERABLES AND MILESTONES
DESCRIPTION TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*]
[*]
[*]
-10-
TABLE 2: [*] RAC PROGRAM CHECKPOINTS
The Rambus program checkpoints listed in the table below are subject to
termination under Section 7.2(b). These milestones and/or schedule may be
modified only by written agreement of all three parties. Although Rambus'
performance is generally dependent on timely performance of all obligations by
SCE, Toshiba, and/or [*], the non-Rambus program checkpoints listed below are
critical dependencies. Without limitation, if those critical dependencies are
not delivered to the agreed upon schedule, the parties specifically agree that
Rambus' deliverable date obligation will be adjusted (normally will slip a
business day for business day) accordingly.
PROGRAM CHECKPOINTS TARGET DATE RESPONSIBILITY
--------------------------------------------------------------------------------
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*] [*] [*]
[*]
[*]
-11-
EXHIBIT E
RAC AND RAC TEST CHIP IMPLEMENTATION
1. [*] will deliver to [*] for the applicable [*]. These shall accurately
reflect the [*].
2. In accordance with [*], the parties may mutually decide to [*] one or
more [*] with a target manufacture date of [*] after [*]. [*] will [*] this [*]
with the fastest possible manufacture time and deliver at least [*], with
samples from each [*], to [*] for evaluation. [*] will complete a [*] and share
with [*] evaluation results of this [*].
3. [*] will transfer to [*] the [*] which includes the following: (i)
[*]; (ii) [*]; (iii) [*]; (iv) [*]; and (v) [*].
4. [*] will designate a [*] and [*] for the design and implementation of
the [*] into the [*]. [*] will convert and implement the [*] into a [*], using
[*] and [*] provided by [*]. [*] will use its best efforts to verify and
manufacture the [*].
5. [*] shall bear all costs associated with the implementation and
manufacture of the [*], including, but not limited to, [*].
6. [*] shall deliver to [*] for the [*], as soon as such [*] are
available, as well as [*] for any [*]. [*] requires [*] to provide [*] for [*].
Should the [*] require [*] to use [*] as part of the [*], then the [*] will
provide [*] with access to such [*] as well as any necessary [*], either by
installing such [*] at the [*], or providing [*] to a [*] capable of [*].
[*] will use its reasonable best efforts to deliver [*] no later than [*] after
the [*] delivers the final [*] to [*]. [*] will deliver [*] and [*] upon
completion.
-12-
EXHIBIT F
[*] RAC DESCRIPTION
The [*] RAC uses [*] in the interface for connection to and communication with
the [*], or a [*], where such connection and communication are through the [*]
incorporated into such [*] or [*] (i.e., the portion of such [*] which provide
[*] with the [*]).
As of [*], it is understood and agreed that the design of the [*] RAC is [*],
with minor modifications to support the [*] with the [*] through the [*]. In
consideration for the [*] due to the [*] of the [*] RAC, the parties have agreed
to a [*] for this specific [*]. If at any point in the future, this definition
changes substantially and [*] must [*] in order to deliver this RAC for SCE
and/or Toshiba, the parties agree to [*] the [*] to reflect the [*] associated
with the definition changes.
-13-
EXHIBIT G
ESCROW AGREEMENT
-14-
EXHIBIT G
TO DEVELOPMENT AGREEMENT BY AND AMONG
SONY COMPUTER ENTERTAINMENT INC.,
TOSHIBA CORPORATION, AND RAMBUS INC.
ESCROW AGREEMENT
This Escrow Agreement (the "Escrow Agreement") is entered into as of
the date of the last signature below, among Rambus Inc., a Delaware corporation
with principal offices at ▇▇▇▇ ▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇.▇.▇. ("Rambus"); Toshiba Corporation, a Japanese corporation with principal
offices at 1-1 ▇▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ("Toshiba") and
SONY Computer Entertainment Inc., a Japanese corporation with principal offices
at ▇-▇ ▇▇▇▇▇▇▇ ▇-▇▇▇▇▇, ▇▇▇▇▇▇-▇▇, ▇▇▇▇▇ ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ("SCE"); and the "Escrow
Agent" set forth at the end of this Escrow Agreement.
WHEREAS, Rambus has developed and is developing certain logic-to-logic
interface technology currently designated by Rambus as "Redwood Rambus Interface
Technology," and certain logic-to-memory interface technology currently
designated by Rambus as "Yellowstone Rambus Interface Technology";
WHEREAS, Toshiba and Rambus have entered into a Redwood and
Yellowstone Semiconductor Technology License Agreement;
WHEREAS, SCE and Rambus have entered into a Redwood and Yellowstone
Semiconductor Technology License Agreement;
WHEREAS, SCE, Rambus and Toshiba have entered into a Development
Agreement (the "Development Agreement") to cooperate with each other to
implement Rambus' Redwood Rambus Interface Technology and Yellowstone Rambus
Interface Technology in and with products of SCE and Toshiba;
WHEREAS, SCE, Toshiba, and Rambus desire to enter into an escrow
arrangement to provide for the deposit of the materials specified in Attachment
1 hereto (the "Escrowed Materials") to be held by Escrow Agent pursuant to the
terms and conditions of this Agreement; and
WHEREAS, the Escrow Agent is willing to act as escrow agent for SCE,
Toshiba, Rambus on the terms and conditions hereinafter set forth;
NOW, THEREFORE, in consideration of the mutual covenants, agreements
and conditions set forth herein, the parties agree as follows:
Confidential Page 1 4/29/2003
1. Appointment. Rambus, SCE, and Toshiba hereby appoint Escrow Agent
as the escrow holder under this Escrow Agreement, and the Escrow Agent accepts
such appointment on the terms and conditions set forth in this Escrow Agreement.
2. Deposit of Escrowed Materials. Rambus agrees to deposit the
Escrowed Materials with the Escrow Agent within forty-five (45) days after
execution of this Escrow Agreement. Rambus agrees to deposit updated versions,
bug fixes, enhancements and customizations, if any, of the Escrowed Materials
monthly during the term of this Escrow Agreement. Escrow Agent shall hold and
dispose of the Escrowed Materials only in accordance with the terms of this
Escrow Agreement and, during and after the term of this Escrow Agreement, shall
not use, transfer, or disclose the Escrowed Materials, or the information
contained therein, except as set forth herein. Escrow Agent shall promptly
notify Rambus, SCE, and Toshiba upon receipt of a subpoena or other governmental
request under governmental authority for any transfer or disclosure of any
Escrowed Materials, and Escrow Agent shall cooperate with Rambus, at Rambus'
request and expense, if Rambus elects to attempt to oppose or limit the transfer
or disclosure.
3. Technical Verification. SCE and/or Toshiba reserves the option to
hire a third party mutually agreed upon by such party and Rambus to verify the
Escrowed Materials for completeness and accuracy. Any such third party shall be
subject to a confidentiality agreement, reasonably acceptable to Rambus,
concerning the Escrowed Materials. Rambus agrees to cooperate with any such
third party in the verification process by providing its facilities and computer
system and by permitting at least one employee of SCE and/or Toshiba to be
present during the verification of the Escrowed Materials. No more than one such
verification, however, may occur in any twelve (12) month period, whether
requested by SCE, Toshiba, or jointly by SCE and Toshiba.
4. Purpose. The Escrowed Materials shall constitute a reserve to be
made available to SCE and/or Toshiba, as set forth in Section 2.13 of the
Development Agreement, under the terms of this Escrow Agreement only in the
event (i) Rambus files a petition in bankruptcy or insolvency or becomes the
subject of any voluntary proceeding relating to bankruptcy or insolvency, or
makes a general assignment for the benefit of creditors, (ii) a receiver or
bankruptcy trustee for all or substantially all of the property of Rambus has
been appointed, (iii) any voluntary proceedings for the liquidation or winding
up of Rambus' business or for the termination of its corporate charter have been
instituted by Rambus (unless in connection with the sale or other transfer of
all or substantially all of Rambus' business or assets), including but not
limited to a general assignment for the benefit of creditors, (iv) Rambus' board
of directors passes a resolution to dissolve, liquidate or wind up Rambus'
business (unless in connection with the sale or other transfer of all or
substantially all of Rambus' business or assets), including but not limited to a
general assignment for the benefit of creditors, or (v) a third party files a
petition in bankruptcy or insolvency against Rambus and that petition is not
dismissed within sixty (60) days after service of the petition on Rambus (each,
a "Release Event").
5. Escrow Release. Subject to the provisions of Sections 6, 7, and 8
below, the Escrow Agent shall be authorized to release the Escrowed Materials to
SCE and/or Toshiba, as applicable, upon receiving written authorization from an
officer of such company certifying that a specified Release Event or Events have
actually occurred, and referencing the applicable clause(s) of Section 4
Confidential Page 2 4/29/2003
above, and that it therefore is entitled to the Escrowed Materials pursuant to
the Development Agreement (the "Notice"). The Notice shall be accompanied by
documentary evidence from third party sources, if available, to substantiate the
occurrence of the Release Event(s) (e.g., a copy of a filed petition for
bankruptcy protection certified by the court; or a copy of a Rambus board
resolution constituting a Release Event under clause (iv) of Section 4 above,
certified to be true and correct by an officer of each party providing the
Notice).
6. Counternotice. Within three (3) business days after receipt of
the Notice, the Escrow Agent shall deliver to Rambus a copy of the Notice and
shall confirm such delivery in writing to SCE and Toshiba. If the Escrow Agent,
within five (5) business days after its delivery of the Notice to Rambus (except
as set forth in Section 7(c) below), does not receive (i) a written statement
from the party that delivered the Notice (i.e., SCE and/or Toshiba) withdrawing
the Notice, or (ii) a counternotice (the "Counternotice") from Rambus pursuant
to Section 7 below, then the Escrow Agent shall promptly deliver the Escrowed
Materials to SCE and/or Toshiba, as applicable.
7. Disputed Notice. If Rambus disputes the existence of the Release
Event(s) upon which the Notice is based, then, except as set forth in Section
7(c) below, Rambus may, within five (5) business days following its receipt of
the Notice, deliver a Counternotice to the Escrow Agent and to the party(ies)
that delivered the Notice. The Counternotice shall specify the facts upon which
Rambus disputes the existence of the Release Event(s) upon which the Notice is
based.
(a) If the Notice was accompanied by documentary evidence from
third party sources to substantiate the occurrence of the Release Event(s) as
set forth in Section 5 above, then, except as set forth in Section 7(c) below,
notwithstanding the Counternotice, the Escrow Agent shall deliver the Escrowed
Materials to the party(ies) that delivered the Notice. Such party(ies) shall be
entitled to retain the Escrowed Materials pending the results of the arbitration
pursuant to Section 8 below.
(b) If the Notice was not accompanied by documentary evidence
from third party sources to substantiate the occurrence of the Release Event(s)
as set forth in Section 5 above, and if the Escrow Agent has not received such
documentary evidence before receipt of the Counternotice, then if the
Counternotice is received by the Escrow Agent and the party(ies) that delivered
the Notice before the close of business on the fifth (5th) business day
following receipt of the Notice by Rambus, the Escrow Agent shall, within three
(3) business days after receipt of the Counternotice, serve a copy of the
Counternotice on SCE and Toshiba and withhold delivery of the Escrowed Materials
pending receipt of (i) a decision evidencing the outcome of the arbitration
provided for in Section 8 below, or (ii) other written instructions signed by
officers of both Rambus and the party(ies) that delivered the Notice (i.e., SCE
and/or Toshiba). Upon receipt of said decision or other instruction, the Escrow
Agent shall deliver the Escrowed Materials only in accordance with the decision
or instruction.
(c) With respect to a Notice requesting release of the Escrowed
Materials pursuant to clause (v) of Section 4 above, the time period for Rambus
to provide a Counternotice under Section 6 above and this Section 7 shall be
extended to sixty (60) calendar days plus five (5) business days after service
of the involuntary petition in bankruptcy on Rambus. In addition, if Rambus'
Counternotice is accompanied by documentary evidence from third party sources
showing either (i)
Confidential Page 3 4/29/2003
the petition was not properly served on Rambus or (ii) the petition was
dismissed, then the Escrow Agent shall not release the Escrowed Materials
pursuant to that Notice. In such event, at the request of a party that delivered
the Notice, the dispute will be arbitrated in accordance with the procedures
specified in Section 7(b) above and Section 8 below. If both (A) the Notice was
accompanied by documentary evidence to show that the notice of the petition was
served on Rambus (or such documentary evidence was provided to Escrow Agent and
Rambus within forty-five (45) days after service of the involuntary petition in
bankruptcy on Rambus) and (B) Rambus has not delivered the Counternotice
accompanied with applicable documentary evidence within such sixty (60) calendar
days and five (5) business days period to the Escrow Agent, the Escrow Agent
shall deliver the Escrowed Materials to the party(ies) that delivered the
Notice.
8. Arbitration of Disputed Notice. Rambus, SCE, and Toshiba agree
that, if the Counternotice is given by Rambus pursuant to Section 7 above, then
said parties shall submit to the exclusive jurisdiction of the American
Arbitration Association to resolve the dispute before a Board of Arbitrators
(the "Board") in Palo Alto, California. The Board shall consist of three (3)
members selected by the American Arbitration Association. The sole question
before the Board shall be whether or not there existed, at the time SCE and/or
Toshiba transmitted the Notice to the Escrow Agent under Section 5 above, a
Release Event specified in the Notice. Such arbitration shall be governed by the
then-current rules of the American Arbitration Association. The parties agree
that the decision of the Board shall be final and binding and that such decision
shall be immediately delivered to the parties to the arbitration and to the
Escrow Agent. If the Board finds that the Notice was properly given by SCE
and/or Toshiba on the basis of the existence of a Release Event specified in the
Notice, then, as applicable, either (i) the party(ies) that delivered the Notice
and obtained the Escrowed Materials under Section 7(a) or 7(c) above shall be
entitled to retain the Escrowed Materials, or (ii) if the Escrow Agent, pursuant
to Section 7(b) or 7(c) above, did not previously provide the Escrowed Materials
to such party(ies), the Escrow Agent shall promptly deliver the Escrowed
Materials to such party(ies). If the Board finds to the contrary, then, as
applicable, either (i) the party(ies) that obtained the Escrowed Materials under
Section 7(a) or 7(c) above shall immediately cease all use of the Escrowed
Materials and immediately return the Escrowed Materials, and all partial or
complete copies thereof, to the Escrow Agent, or (ii) if the Escrow Agent,
pursuant to Section 7(b) or 7(c) above, did not previously provide the Escrowed
Materials to such party(ies), the Escrow Agent shall not release the Escrowed
Materials as a result of the disputed Notice. All fees and charges by the
American Arbitration Association shall be paid by the nonprevailing party in the
arbitration; provided, however, that each party shall be responsible for the
payment of all fees and expenses connected with the presentation of its
respective case.
9. Use of Escrowed Materials. SCE's and/or Toshiba's right and
license to use the Escrowed Materials, upon an authorized release thereof, shall
at all times be limited to use pursuant to Sections 2.8, 2.10, and 2.13 of the
Development Agreement. The Escrowed Materials shall be Rambus "Confidential
Information" pursuant to Section 4 of the Development Agreement, and SCE and
Toshiba shall comply with the requirements of said Section 4 in connection
therewith.
10. Termination. This Escrow Agreement and the escrow established
pursuant to this Escrow Agreement shall terminate upon the earliest of (i) [*],
or (ii) first commercial availability of a production version of the "Broadband
Engine" (as defined in the Development Agreement), or (iii)
Confidential Page 4 4/29/2003
expiration or termination of the Development Agreement, or (iv) upon receipt by
the Escrow Agent of a joint written notice from SCE and Toshiba to terminate
this Escrow Agreement, and all materials comprising the Escrowed Materials shall
thereupon be returned to Rambus.
11. Notices.
(a) Whenever an instruction, notice, direction or other
communication is given hereunder, such instruction, notice, direction, or other
communication may be signed for Rambus only by its CEO, President or a Senior
Vice President.
(b) It is understood that the Escrow Agent will incur no
liability for acting upon any instruction, notice, direction or other document
believed by it in good faith to be genuine and to have been made, signed, sent
or presented by the person or persons authorized to perform such act under the
terms of this Escrow Agreement.
(c) All notices, instructions, deliveries and other
communications required or permitted to be given hereunder or necessary or
convenient in connection herewith shall be in writing and personally delivered
or sent by overnight courier (e.g., Federal Express), as follows:
To Escrow Agent: To the address set forth at the end of this Escrow
Agreement, and to the attention of the person signing this Escrow Agreement on
behalf of Escrow Agent.
To Rambus: To the address first set forth above, Attn: ▇▇▇▇
▇▇▇▇▇▇▇▇, Senior Vice President and General Counsel.
To SCE: To the address first set forth above, Attn VP, Legal
Dept. Administration and Control Div..
To Toshiba: To the address first set forth above, Attn: General
Manager, Legal Affairs and Contracts Div.,
Semiconductor Company.
or to such other name or address as the Escrow Agent, Rambus, SCE or Toshiba, as
the case may be, shall designate by notice to the other parties hereto in the
manner specified in this section.
12. Liability of Escrow Agent. The duties and obligations of the
Escrow Agent shall be determined solely by the express provisions of this Escrow
Agreement. The Escrow Agent shall not be responsible in any manner whatsoever
for any failure or inability of Rambus, SCE and/or Toshiba, or for anyone else,
to perform or comply with any of the provisions of this Escrow Agreement.
13. Governing Law. This Escrow Agreement shall be governed by the
laws of the State of California, without reference to conflict of laws
principles.
14. Entire Agreement. This Escrow Agreement sets forth the entire
understanding of the parties hereto with respect to the subject matter hereof
and cannot be changed, modified, or terminated orally.
Confidential Page 5 4/29/2003
15. Validity. No action taken by the Escrow Agent in accordance with
the terms and provisions hereof shall be deemed to constitute a representation
of the Escrow Agent as to the validity or value of any documents or instructions
held by, or delivered to, it.
16. Resignation/Replacement.
(a) Upon sixty (60) days prior written notice given to Rambus,
SCE, and Toshiba, the Escrow Agent may resign. Within fifteen (15) days after
the receipt of such notice, Rambus, SCE, and Toshiba shall mutually designate a
successor Escrow Agent in the United States. The successor Escrow Agent shall be
bound by the terms and provisions of this Escrow Agreement. In the event that no
such agreement is reached within such fifteen (15) day period, the Escrow Agent
shall continue to hold the Escrowed Materials then held by it and shall take no
further actions and shall have no further obligations hereunder except as
required by Section 16(c) below.
(b) Upon notice to the Escrow Agent, Rambus, SCE, and Toshiba
may jointly replace Escrow Agent with a successor, who shall replace Escrow
Agent and be bound by all the terms and conditions of this Agreement.
(c) The Escrow Agent named herein (and any successor) shall
deliver the Escrowed Materials to the successor Escrow Agent and shall cooperate
with its successor in order to effectuate the transfer of its duties to the
successor Escrow Agent.
17. Fees and Expenses. SCE and Toshiba agree to pay the fees of the
Escrow Agent for its services hereunder during the term of this Agreement. Such
fees may consist of charges to establish the escrow, regular (e.g., monthly or
yearly) escrow maintenance charges, and fees charged for carrying out its duties
hereunder, in each case at Escrow Agent's standard rates.
18. Indemnification. SCE, Toshiba, and Rambus jointly and severally
agree to indemnify the Escrow Agent from and against any and all liabilities,
costs, and expenses resulting from any claim or action against the Escrow Agent
arising out of this Agreement, or any action taken or omitted by the Escrow
Agent under this Agreement, provided that neither SCE, Toshiba nor Rambus shall
be liable for that portion of any such indemnification amount resulting from the
Escrow Agent's gross negligence or willful misconduct or violation by the Escrow
Agent of any term or provision of this Escrow Agreement.
19. Supplementary Agreement. The parties agree that this Agreement is
an agreement supplementary to the Development Agreement, which is an executory
contract licensing a right to intellectual property, as provided in ▇▇ ▇.▇.▇.
▇▇▇▇▇▇▇ ▇▇▇(▇)(▇), ▇▇▇▇▇▇ ▇▇▇▇▇▇ Code Annotated.
20. No Third Party Beneficiaries21. This Agreement has been made
and is made solely for the benefit of Rambus, Toshiba and SCE and their
respective permitted successors and permitted assigns. Nothing in this Agreement
is intended to confer any rights or remedies under or by reason of this
Agreement on any person or entity other than the parties to this Agreement and
their respective successors and permitted assigns. Nothing in this Agreement is
intended to relieve or discharge the obligation or liability of any third person
or entity to any party to this Agreement.
Confidential Page 6 4/29/2003
IN WITNESS WHEREOF, the parties by their duly authorized
representatives have executed this Agreement as of the date set forth above.
RAMBUS INC.
By:
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Title:
------------------------------------
SONY COMPUTER ENTERTAINMENT INC.
By:
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Title:
------------------------------------
TOSHIBA CORPORATION
By:
---------------------------------------
Title:
------------------------------------
ESCROW AGENT:
Name:
-------------------------------------
Address:
-------------------------------
-------------------------------
By:
---------------------------------------
Title:
------------------------------------
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ATTACHMENT 1
Key [*] Information
1. [*]
Technology
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2. [*]
3. [*]
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