EXHIBIT 6.2
"SF" PROCESS 65NM/45NM DEVELOPMENT AND COST SHARING AGREEMENT
BETWEEN
INTERNATIONAL BUSINESS MACHINES CORPORATION
AND
CHARTERED SEMICONDUCTOR MANUFACTURING LTD.
AND
INFINEON TECHNOLOGIES, A.G.
AND
SAMSUNG ELECTRONICS CO., LTD.
CONFIDENTIAL TREATMENT REQUESTED: THE PORTIONS OF THIS AGREEMENT MARKED BY *****
HAVE BEEN OMITTED PURSUANT TO A REQUEST FOR CONFIDENTIAL TREATMENT AND HAVE BEEN
FILED SEPARATELY WITH THE SECURITIES AND EXCHANGE COMMISSION
This SF Process 65nm/45nm Development and Cost Sharing Agreement is made
effective as of March 5, 2004 (hereinafter referred to as the "Effective Date")
by and between International Business Machines Corporation ("IBM"), incorporated
under the laws of the State of New York, U.S.A. and having an office for the
transaction of business at 0000 Xxxxx 00, Xxxxxxxx Xxxxxxxx, XX 00000, U.S.A.,
Chartered Semiconductor Manufacturing Ltd. ("Chartered"), incorporated under the
laws of Singapore and having an office for the transaction of business at 00
Xxxxxxxxx Xxxxxxxxxx Xxxx X, Xxxxxx 0, Xxxxxxxxx 000000, Infineon Technologies,
AG, ("IFX") incorporated under the laws of Germany and having an office for the
transaction of business at Xx. Xxxxxx Xxxxxxx 00, 00000 Xxxxxx, Xxxxxxx, and
Samsung Electronics, Ltd ("Samsung") incorporated under the laws of the Republic
of Korea and having an office for the transaction of business at San #24
Nongseo-Ri, Giheung-Eup, Yongin-City, Gyeonggi-Do, 449-711, the Republic of
Korea. IBM, IFX, Samsung, and Chartered may be individually referred to herein
as a "Party", or collectively as the "Parties."
WHEREAS, IBM has been developing leading edge semiconductor manufacturing
processes and the Parties wish to jointly participate in the continued
development of certain of such process technologies with the goal of achieving
leadership foundry semiconductor manufacturing process capabilities;
WHEREAS, IBM and Chartered previously entered into the "SF Process Development
and Cost Sharing Agreement" on November 26, 2002, and IBM, Chartered, and IFX
previously entered into the "SF Process Development and Cost Sharing Agreement"
of June 26, 2003, Samsung now wishes to join IBM, IFX, and Chartered in the
further development of 65nm leadership foundry semiconductor manufacturing
process capabilities, as well as work with IBM, IFX, and Chartered in the
development of 45nm bulk CMOS technology, and as such all four parties wish to
enter into the present agreement, which replaces and is in substitution of the
"SF Process Development and Cost Sharing Agreement" of June 26, 2003 between
IBM, Chartered, and IFX as of the Effective Date;
WHEREAS, the Parties possess complementary skills and know-how, which the
Parties wish to contribute toward such process development;
WHEREAS, each Party agrees to provide certain personnel and grant the other
Parties certain technology licenses in support of such process development and
share the cost of such process development as set forth herein;
WHEREAS, through the use of such complementary skills and know-how the Parties
desire to achieve resource efficiencies and cost savings, and reduce the
technical risk associated with the development of high end semiconductor
processes in order to complete research and development of and put into
production, leading edge high end semiconductor manufacturing processes sooner
than would be possible with either of the Parties acting independently;
NOW THEREFORE, in consideration of the premises and mutual covenants contained
herein, as well as for other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the Parties agree as follows.
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SECTION 1 - DEFINITIONS
Unless expressly defined and used with an initial capital letter in this
Agreement, words shall have their normally accepted meanings. The headings
contained in this Agreement or in any exhibit, attachment or appendix hereto are
for reference purposes only and shall not affect in any way the meaning or
interpretation of this Agreement. The word "shall" is mandatory, the word "may"
is permissive, the word "or" is not exclusive, the words "includes" and
"including" are not limiting, and the singular includes the plural. The
following terms shall have the described meanings:
"Advanced Semiconductor Technology Center" or "ASTC" means the IBM 200mm or
300mm wafer process development facility located in the United States used for
conducting the Process Development Projects.
"Agreement" means the terms and conditions of this SF Process 65nm/45nm
Development and Cost Sharing Agreement together with any exhibits, attachments
and appendices hereto.
"Background Know-How" means methods, techniques, designs, structures, software
and other copyrightable materials, specifications and other information,
know-how, and non-copyrightable materials developed (either solely or jointly
with one or more Third Parties), learned or acquired by a Party outside the
performance of the Process Development Projects (whether before, on or after the
Effective Date) that such Party provides to the other Parties for use in a
Process Development Project pursuant to Section 3. Such Background Know-How
shall not include Packaging Technology, Mask Fabrication and Photoresist
Technology, Memory, SiGe Technology, SOI Information, or Chip Designs.
"Bulk CMOS" means CMOS semiconductor manufacturing technology carried out on a
wafer that is not an SOI Wafer.
"Bulk CMOS Integrated Circuit" means an Integrated Circuit fabricated utilizing
a Bulk CMOS manufacturing process.
"Change of Control" shall be deemed to have occurred for a Party if: (a) there
shall be consummated (i) any consolidation or merger of such Party in which such
Party is not the continuing or surviving corporation, or pursuant to which
shares of such Party's common stock would be converted into cash, securities or
other property, other than a merger of the Party in which the holders of such
Party's common stock immediately prior to the merger have substantially the same
proportionate ownership of common stock of the surviving corporation immediately
after the merger, or (ii) any sale, lease, exchange or other transfer (in one
transaction or a series of related transactions) of substantially all of the
assets of such Party, but only if such sale, lease, exchange or transfer would,
by its nature, include an assignment of the rights or obligations under this
Agreement; or (b) the stockholders of such Party shall approve any plan or
proposal for the liquidation or dissolution of such Party; or (c) any
transaction (such as a merger, tender or exchange offer, open market purchases,
privately negotiated purchases, or otherwise) as a result of which (i) any
person (as such term is used in section 13(d) and 14(d) (2) of the Securities
Exchange Act of 1934 (the "Exchange Act")) shall become the beneficial owner
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(within the meaning of Rule 13d-3 under the Exchange Act) of securities
representing more than fifty (50%) of voting securities of such Party having the
voting power of such Party's then outstanding securities ordinarily (and apart
from rights accruing in special circumstances) having the right to vote in the
election of directors, or (ii) in the case of Chartered, Samsung, or IFX, any
person (as such term is used in section 13(d) and 14(d) (2) of the Exchange Act)
that is a person who, either directly or through its subsidiaries derives more
than fifty percent (50%) of its revenue (as measured as of the end of the most
recent fiscal year of such person) from the manufacture and/or sale of
Semiconductor Products becomes the beneficial owner (within the meaning of Rule
13d-3 under the Exchange Act) of securities representing more than (a) in the
case of Chartered, thirty percent (30%) of voting securities having the voting
power of Chartered's then outstanding securities ordinarily (and apart from
rights accruing in special circumstances) having the right to vote in the
election of directors, provided however, that such transaction would not
constitute a Change of Control if Singapore Technologies Pte Ltd, directly or
indirectly continues to hold forty percent (40%) or more of the securities of
Chartered, or (b) in the case of IFX, thirty percent (30%) of voting securities
having the voting power of IFX's then outstanding securities ordinarily (and
apart from rights accruing in special circumstances) having the right to vote in
the election of directors, provided however, that such transaction would not
constitute a Change of Control if Siemens, directly or indirectly continues to
hold forty percent (40%) or more of the securities of IFX, or (c) in the case of
Samsung, thirty percent (30%) of voting securities having the voting power of
Samsung's then outstanding securities ordinarily (and apart from rights accruing
in special circumstances) having the right to vote in the election of directors.
And further provided that in the case of both (c) (i) and (c) (ii) the
transaction would not constitute a Change of Control if such person (i) on the
Effective Date, was already the beneficial owner of securities representing more
than twenty percent (20%) of the voting power of such Party, (ii) is an employee
benefit plan (or representative of multiple plans) sponsored by such Party, or
(iii) is a financial institution that acquires and holds such securities as part
of an underwriting for the issuance or sale of such securities.
"Chartered Co-Project Leader" means the individual appointed by Chartered
pursuant to Section 4.2, below.
"Chartered Qualification and Process Freeze" means the successful completion of
foundry standard stress on a product and/or a product like vehicle with mixed
signal, digital and SRAM elements and with manufacturing process routing
defined, in a Chartered manufacturing facility for 300mm Wafers.
"Chip Design(s)" means any design of one or more Integrated Circuits and/or
Semiconductor Products, including (by way of example and not limitation) random
access memory (RAM)s, read only memory (ROM)s, microprocessors, application
specific Integrated Circuits (ASICs) and other logic designs, and analog
circuitry; provided, however, that "Chip Designs" shall not include (i)
alignment marks or test structures and associated layout and data used in the
Process Development Projects for process development, (ii) process kerf test
structures, layout, and data of the test chip(s) (including SRAM or ROM macro
cells) as well as such test chips themselves used for the development work of
the Process Development Projects unless specifically excluded, or (iii) other
product designs as mutually agreed by the Parties to be used as qualification
vehicles in the Process Development Projects. For the avoidance of doubt, all of
(i)
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through (iii) above shall be treated as Specific Results to the extent utilized
in a Process Development Project.
"45nm Bulk CMOS" means the next major lithography generation Bulk CMOS logic
fabrication process technology for 300mm wafers below 65nm, with the target
objectives set forth in Exhibit A.2, attached hereto.
"300mm Wafer 65nm Bulk CMOS" means a 65 nm lithography generation Bulk CMOS
logic fabrication process technology for 300mm wafers, with the parameters set
forth in Exhibit A.1, attached hereto.
"Designated Invention" means an Invention for which a patent application has
been filed by one or more of the Parties.
"Derivative Processes" means process technologies for semiconductor devices,
which process technologies use, modify or otherwise derive from the Specific
Results or any element or portion thereof.
"Embedded DRAM" or "eDRAM" means a device that either (i) primarily carries out
logic functions, and includes one or more dynamic random access memory (DRAM)
cells embedded within logic circuitry on the same semiconductor substrate, or
(ii) primarily carries out memory functions, and includes one or more DRAM cells
in combination with a static random access memory (SRAM) array on the same
semiconductor substrate (including an array of SRAM cells linked with bit lines,
word lines, sense amplifiers and decoders).
"Foundry Company" means *****. Foundry Company also includes *****.
"Foundry Product" means an Integrated Circuit wherein all the following
conditions are met: (i) the design, or masks and/or mask build data, for such
Integrated Circuit product are provided to the Foundry Company or Pure Play
Foundry, whichever the case may be by a third party; (ii) such Foundry Company
or Pure Play Foundry, whichever the case may be, played no substantial role in
any phase of the design of such product; and (iii) such Foundry Company or Pure
Play Foundry, whichever the case may be is contractually bound to manufacture
such product solely for, and to sell such product solely to, such third party or
its distributor or other recipient solely for the benefit of such third party.
"Future Technologies" means the primary CMOS semiconductor logic generations
with ground rules of less than 65nm, including but not limited to 45nm Bulk
CMOS.
"IBM Project Leader" means the individual appointed by IBM pursuant to Section
4.2, below, to provide day-to-day oversight for the Process Development
Projects.
"IBM Qualification and Process Freeze" means the successful completion of
foundry standard stress on a product and/or a product like vehicle with mixed
signal, digital and SRAM elements and with manufacturing process routing
defined, in the IBM manufacturing line for 300mm Wafers.
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"IFX Co-Project Leader" means the individual appointed by IFX pursuant to
Section 4.2, below.
"IFX Qualification and Process Freeze" means the successful completion of
foundry standard stress on a product and/or a product like vehicle with mixed
signal, digital and SRAM elements and with manufacturing process routing
defined, in IFX's manufacturing facility for 300mm Wafers.
"Integrated Circuit" means an integral unit formed on a semiconductor substrate
including a plurality of active and/or passive circuit elements formed at least
in part of semiconductor material.
"Invention" means any invention, discovery, design or improvement, conceived or
first actually reduced to practice solely or jointly by one or more
Representatives of one or more of the Parties or their respective contractors
during the Term of this Agreement and in the performance of the Process
Development Projects.
"Joint Development Partner" means *****, with whom Chartered, IFX or Samsung, as
the case may be, has established a joint development relationship for the
development of Future Technologies prior to the time of disclosure by Chartered,
IFX of Samsung as set forth in Section 7.10 and 7.10A, respectively.
"Joint Manufacturing Facility" means a Subsidiary of IFX that has as its primary
business the manufacture of Bulk CMOS Integrated Circuits, *****.
"Licensed Patents" means those patents, patent applications, and utility models,
licensable by the granting Party and/or its Subsidiaries without the payment of
royalties or other consideration to a Third Party other than an employee of the
granting Party, that have claims directed to semiconductor fabrication processes
and have effective filing dates any time prior to two (2) years after
termination of this Agreement by a grantor Party, or any time prior to (2) years
after expiration of this Agreement, as the case may be, and all
continuations-in-part, reissues, reexaminations, and counterparts of same.
"Lithography" means those aspects of Background Know-How and Specific Results
directed to (a) process technology-dependent ground rules or process
technology-dependent special rules for shapes replication as developed by the
Parties for the generation of photomasks used for development and qualification
of a semiconductor process technology in the Process Development Projects, (b)
resolution enhancement techniques specifically created pursuant to the Process
Development Projects to generate mask build data, (c) such photomasks themselves
and the data files used therefor as are used in the Process Development
Projects, (d) lithography process sequence as utilized in the Process
Development Projects, and (e) mask data generation sequence as utilized in the
Process Development Projects.
"Management Committee" shall have the meaning ascribed to it in Section 4.1.
"Mask Fabrication and Photoresist Technology" means any process, procedure,
Proprietary Tools, Third Party tools, or hardware tool used in the fabrication
of photomasks, as well as the
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photomasks themselves, and/or the formulation and/or manufacture of photoresist;
provided, however, that "Mask Fabrication and Photoresist Technology" shall not
include Lithography.
"Memory" means Chip Designs and fabrication processes related to read only
memory (ROM), dynamic random access memory (DRAM), programmable ROMs, magnetic
RAM (MRAM), ferroelectric RAM, Embedded DRAM and other stand-alone memory. For
the avoidance of doubt, "Memory" shall not include embedded static RAM (SRAM)
cell designs and process technology or the SRAM or ROM used in the Process
Development Projects as test vehicles.
"Module" or "Process Module" means a stand alone sequence of process steps which
is a portion of a CMOS process technology.
"Packaging Technology" means any process, procedure, software, or hardware tools
used in the packaging of integrated circuit products into single-chip packages,
multi-chip packages, or any other higher levels of assembly, including but not
limited to IBM's collapsible chip carrier connection ("C4") interconnect
technology; provided, however, that the final on-chip metal and via layers for
redistribution of pads (also known as redistribution layer, or last via (LV), or
top via (TV), or final via (FV)) shall be considered a part of the CMOS
fabrication process, not Packaging Technology.
"Previous Agreement" means the terms and conditions of the "SF" Process
Development and Cost Sharing Agreement" of November 26, 2002 between IBM and
Chartered, together with any exhibits, attachments and appendices thereto.
"Process Development Project(s)" means the 45nm Bulk CMOS and 65nm Bulk CMOS
research and development work conducted jointly by Representatives of the
Parties pursuant to the terms and conditions of this Agreement, as more fully
set forth in Section 3.1, 3.2 and 3.7 below, which the Parties may install as
their baseline Bulk CMOS foundry manufacturing process of record (excluding
customer specific implementations, derivatives and customer confidential
information) in their respective 300mm wafer fabrication facilities.
"Project Leaders" means the IBM Project Leader, the IFX Co-Project Leader, the
Chartered Co-Project Leader, and the Samsung Co-Project Leader.
"Proprietary Tools" means application software (in source code form or in object
code form), such as model generation and extraction software, data collection
software and data manipulation/analysis software, that are not commercially
available and are either owned by a Party or under which a Party has the right
to grant royalty-free licenses, and that are used in connection with the Process
Development Projects. For the avoidance of doubt, "Proprietary Tools" shall not
be interpreted as including the data itself to be utilized by such application
software.
"Pure Play Foundry" means an entity *****.
"Representative(s)" means a Party's employees and employees of a Party's Wholly
Owned Subsidiaries.
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"Samsung Co-Project Leader" means the individual appointed by Samsung pursuant
to Section 4.2, below.
"Samsung Qualification and Process Freeze" means the successful completion of
foundry standard stress on a product and/or a product like vehicle with mixed
signal, digital and SRAM elements and with manufacturing process routing
defined, in Samsung's manufacturing facility for 300mm Wafers.
"Semiconductor Product" means a component that contains an Integrated Circuit on
a single or multichip module that incorporates a means of connecting those
Integrated Circuits with other electronic elements (active or passive) and/or
means to make external electrical connections to such elements, but which
excludes any means for a user to operate the functions therein (e.g., buttons,
switches, sensors).
"Silicon-Germanium Technology" or "SiGe Technology" means semiconductor
fabrication processes and design techniques incorporating silicon and germanium
in a bipolar base region.
"Silicon-On-Insulator Wafer" or "SOI Wafer" means a single-crystal silicon wafer
bearing a horizontally-disposed isolating silicon dioxide (SiO2) layer, in turn
bearing a single-crystal silicon layer or a polysilicon layer, which is
separated from the underlying silicon by the silicon dioxide layer and in which
one or more active or passive integrated circuit structures are formed.
"SOI Information" means any and all process methods, steps, and structures
created on SOI Wafers and not on Bulk CMOS Integrated Circuits.
"Specific Results" means information and materials, other than i) Proprietary
Tools, ii) Packaging Technology, iii) Mask Fabrication and Photoresist
Technology, iv) Memory, v) SiGe Technology, vi) SOI Information, and vii) Chip
Designs, developed under, and/or acquired, within the scope of the Process
Development Projects by one or more Parties pursuant to the development work of
the Process Development Projects, including as follows:
The documentation produced for the Process Development Projects as set
forth in Exhibit G attached hereto ("Documentation");
All Inventions, information, know-how and materials resulting from the
Process Development Projects, including but not limited to methods,
techniques, unit processes, process flows, structures in silicon, software
and other copyrightable materials, and specifications for equipment,
chemicals, masks and consumables;
All derivative works or improvements created or developed by or for a Party
solely or jointly as part of the Process Development Projects.
For avoidance of doubt, the Parties acknowledge that Specific Results does not
include Background Know-How.
"Subsidiary" means a corporation, company or other entity:
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(a) more than fifty percent (50%) of whose outstanding shares or
securities (representing the right to vote for the election of
directors or other managing authority) are, now or hereafter, owned or
controlled, directly or indirectly, by a Party hereto, or
(b) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association,
but more than fifty percent (50%) of whose ownership interest
representing the right to make the decisions for such corporation,
company or other entity is now or hereafter, owned or controlled,
directly or indirectly, by a Party hereto,
provided that in either case such entity shall be considered a Subsidiary,
and shall be entitled to retain the licenses and other benefits provided by
this Agreement to Subsidiaries, only so long as such ownership or control
exists.
"T1" shall have the meaning as set forth in Exhibit B.
"Technical Coordinators" means the individuals referred to in Section 4.4,
below.
"Term" means the period of time defined in Section 12.1.
"Test Site" means a device or circuit evaluation site on a wafer.
"Third Party" means an entity or entities other than the Parties or their Wholly
Owned Subsidiaries.
"Three Way Agreement" shall mean the "SF Process Development and Cost Sharing
Agreement" of June 26, 2003 between IBM, Chartered, and IFX.
"UMCi" means an entity that has as its primary business the manufacture of Bulk
CMOS Integrated Circuits, wherein at least fifty percent (50%) of the ownership
interest in such entity is owned by United Microelectronics Corporation ("UMC")
and at least twenty percent (20%) of the ownership interest in such entity is
currently owned by IFX, and wherein UMC and no other entity provides day-to-day
control and decision-making authority as to the manufacturing operations of such
entity.
"Wholly Owned Subsidiary" shall mean 1) a corporation, company or other entity:
(a) one hundred percent (100%) of whose outstanding shares or securities
(such shares or securities representing the right to vote for the
election of directors or other managing authority) are, now or
hereafter, owned or controlled, directly or indirectly, by a Party or
two or more of the Parties; or
(b) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association, or
other entity but one hundred percent of whose ownership interest
representing the right to (i) make the decisions for such corporation,
company or other entity, or (ii) vote for, designate, or otherwise
select members of the highest governing decision making body, managing
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body or authority for such partnership, joint venture, unincorporated
association or other entity is, now or hereafter, owned or controlled,
directly or indirectly, by a Party or two or more of the Parties;
provided that in either case such entity shall be considered a Wholly Owned
Subsidiary, and shall be entitled to retain the licenses and other benefits
provided by this Agreement to Wholly Owned Subsidiaries, only so long as
such ownership or control exists; or 2) a corporation, company or other
entity:
(c) at least seventy five percent (75%) of whose outstanding shares or
securities (such shares or securities representing the right to vote
for the election of directors or other managing authority) are, now or
hereafter, owned or controlled, directly or indirectly, by a Party or
two or more of the Parties; or
(d) which does not have outstanding shares or securities, as may be the
case in a partnership, joint venture or unincorporated association, or
other entity but at least seventy five percent (75%) of whose
ownership interest representing the right to (i) make the decisions
for such corporation, company or other entity, or (ii) vote for,
designate, or otherwise select members of the highest governing
decision making body, managing body or authority for such partnership,
joint venture, unincorporated association or other entity is, now or
hereafter, owned or controlled, directly or indirectly, by a Party or
two or more of the Parties;
provided, that in either case (c) or (d) above, (i) all of the
remaining such ownership interest is solely owned or controlled,
directly or indirectly, by one or more corporations, companies or
other entities whose investment is purely financial (in cash or in
kind) and are not engaged in the design, development, manufacture,
marketing or sale of Semiconductor Products, and (ii) such entity
shall be considered a Wholly Owned Subsidiary, and shall be entitled
to retain the licenses and other benefits provided by this Agreement
to Wholly Owned Subsidiaries, only so long as such ownership or
control exists.
SECTION 2 - ASTC; INTERRELATIONSHIPS OF THE AGREEMENTS
IBM has established the Advanced Semiconductor Technology Center in East
Fishkill, New York. Process Development Projects shall be conducted primarily at
the ASTC. In addition to the ASTC, IBM may utilize other IBM facilities to
conduct elements of the development work associated with the Process Development
Projects.
The present Agreement replaces and substitutes the Three Way Agreement as of the
Effective Date, and thereafter the Three Way Agreement shall have no further
force and effect. IBM, Chartered, and IFX agree that none of the expiration or
termination rights and obligations of the Three Way Agreement are triggered by
the substitution of the present Agreement for the Three Way Agreement, and any
and all references to the Three Way Agreement in the bilateral understandings
referred to below shall instead be interpreted as references to the present
Agreement, as of the Effective Date of the present Agreement.
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As to the 300mm Wafer 65nm Bulk CMOS Process Development Project, Chartered
hereby acknowledges and agrees that the Previous Agreement grants IBM the right
to extend to IFX and Samsung full use and disclosure rights under the 300mm 65nm
Bulk CMOS Process Development Project, other than certain restrictions that
would prevent IFX and Samsung from disclosing such information to *****. IFX and
Samsung hereby acknowledge and agree that Chartered's rights to use and disclose
the 300mm 65nm Bulk CMOS Process Development Project information shall be as set
forth in the Previous Agreement, and the licenses from IFX to Chartered and from
Samsung to Chartered in Section 8 herein shall include Chartered's rights to
carry out the uses and disclosures set forth in the Previous Agreement, as
currently amended and as may be amended, as for the 300mm Wafer 65nm Bulk CMOS
Process Development Project. Chartered and Samsung hereby acknowledge and agree
that IFX's rights to use and disclose the 300mm 65nm Bulk CMOS Process
Development Project information shall be as set forth in this Agreement as well
in a separate bilateral IBM-IFX agreement as may be amended, and the licenses
from Chartered to IFX and from Samsung to IFX in Section 8 herein shall include
IFX's rights to carry out the uses and disclosures set forth in this Agreement
as well as such separate IBM-IFX bilateral agreement as may be amended.
Chartered and IFX hereby acknowledge and agree that Samsung's rights to use and
disclose the 300mm 65nm Bulk CMOS Process Development Project information shall
be as set forth in this Agreement, and the licenses from Chartered to Samsung
and from IFX to Samsung in Section 8 herein shall include Samsung's rights to
carry out the uses and disclosures set forth in this Agreement.
As to the 300mm Wafer 45nm Bulk CMOS Process Development Project: (i)
Chartered's rights and obligations as to use and disclosure shall generally be
the same as those that Chartered has as for the 300mm Wafer 65nm Bulk CMOS
Process Development Project information, with changes as set forth in an
amendment to the Previous Agreement, and (ii) IFX's rights and obligations as to
use and disclosure shall be as set forth in this Agreement as well as in a
separate bilateral agreement between IFX and IBM. IFX and Samsung hereby
acknowledge and agree that Chartered's rights to use and disclose the 300mm 45nm
Bulk CMOS Process Development Project information shall be as set forth in the
Previous Agreement, as currently amended and as may be amended, and the licenses
from IFX to Chartered and from Samsung to Chartered in Section 8 shall include
Chartered's rights to carry out the uses and disclosures set forth in the
Previous Agreement, as amended. Chartered and Samsung hereby acknowledge and
agree that IFX's rights to use and disclose the 300mm 45nm Bulk CMOS Process
Development Project shall be as set forth in this Agreement as well as such
separate IBM-IFX bilateral agreement as may be amended, and the licenses from
Chartered to IFX and from Samsung to IFX in Section 8 herein shall include IFX's
rights to carry out the uses and disclosures set forth in this Agreement as well
as such separate IBM-IFX bilateral agreement as may be amended. Chartered and
IFX hereby acknowledge and agree that Samsung's rights to use and disclose the
300mm 45nm Bulk CMOS Process Development Project information shall be as set
forth in this Agreement, and the licenses from Chartered to Samsung and from IFX
to Samsung in Section 8 herein shall include Samsung's rights to carry out the
uses and disclosures set forth in this Agreement.
SECTION 3 - SCOPE OF PROCESS DEVELOPMENT PROJECTS
3.1 The Parties agree to jointly develop 300mm Wafer 65nm Bulk CMOS
semiconductor manufacturing process technologies based on the "SF" Bulk
CMOS technology roadmap
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for the base process, the high performance process, and the low power
process that are generally competitive in complexity, schedule, and
performance as set forth as "Strategic Technology Objectives" in Exhibit A
(hereinafter referred to as "Strategic Technology Objectives"), and in
accordance with the schedule set forth in Exhibit B (hereinafter referred
to as "Development Schedule"). Any modification to such Strategic
Technology Objectives or Development Schedule requires the written consent
of the Management Committee. If the Management Committee fails to agree,
any Party may escalate such failure to agree through the procedures set
forth in Section 18.3. If, after such escalation, the Parties are still
unable to agree, such modification will not be made, and the Parties will
proceed in accordance with such Strategic Technology Objectives or
Development Schedule without such modification or may initiate the wind
down procedure set forth in Section 3.1.2 below. For the avoidance of
doubt, none of the Process Development Projects shall include the
development of i) Proprietary Tools, ii) Packaging Technology, iii) Mask
Fabrication and Photoresist Technology, iv) Memory, v) SiGe Technology, vi)
SOI Information, or vii) Chip Designs.
3.1.1 The Parties agree to commence joint development activities for 300mm
Wafer 45nm Bulk CMOS semiconductor manufacturing process technologies
based on "SF" Bulk CMOS technology roadmap for the base process, the
high performance process, and the low power process that are
generally competitive in complexity, schedule, and performance as set
forth as "Strategic Technology Objectives" in Exhibit A2 (hereinafter
referred to as "Strategic Goals"), with the goal of agreeing on such
Strategic Goals by *****. Such joint development activities shall
include feasibility studies and other analyses as mutually agreed by
the Management Committee to further refine the Strategic Goals. If
the Parties do not agree on such Strategic Goals (as well as a
development schedule) by *****, pursuant to this Section 3.1.1, IFX
and/or Chartered shall have the right to develop 45nm Bulk CMOS with
a Joint Development Partner pursuant to Section 7.10. For the
avoidance of doubt, all of the activities under this Agreement
conducted prior to ***** that are directed to 45nm Bulk CMOS shall be
treated as part of the "300mm Wafer 65nm Bulk CMOS Process
Development Project," and subject to all of the rights and
restrictions applicable to such 65nm Bulk CMOS Process Development
Project, in the event the Parties do not continue such 45nm Bulk CMOS
project after *****; provided, however, that nothing in this
Agreement shall be interpreted as requiring such agreement, and a
lack of such agreement shall not be considered a breach. Further, for
the avoidance of doubt, nothing in this Agreement shall be
interpreted as preventing two or more of the Parties to continue 45nm
Bulk CMOS development should they agree with the Strategic Goals and
should the other Party or Parties not wish to continue beyond *****.
Should the Parties agree to continue the 300mm Wafer 45nm Bulk CMOS
Process Development Project after *****, all of the activities under
this Agreement directed to 45nm Bulk CMOS prior to such date (as well
as thereafter) shall be considered to be part of the 300mm Wafer 45nm
Bulk CMOS Process Development Project, and any modification to such
Strategic Goals or such agreed-to development schedule requires the
written consent of the Management
Page 12
Committee. If the Management Committee fails to agree, any Party may
escalate such failure to agree through the procedures set forth in
Section 18.3. If, after such escalation, the Parties are still unable
to agree, such modification will not be made, and the Parties will
proceed in accordance with such Strategic Goals or development
schedule without such modification or may initiate the wind down
procedure set forth in Section 3.1.2 below.
Further, should the Parties agree to continue the 300mm Wafer 45nm
Bulk CMOS Process Development Project after *****, during the *****
the Parties agree to discuss the extension of the joint development
relationship to the primary CMOS semiconductor logic generation with
ground rules of less than 45nm Bulk CMOS (and other options as
determined by the needs of the foundry marketplace). Any Party may
decide not to proceed with such discussions and/or extension
agreement and any failure to discuss and/or agree shall not
constitute a breach of this Agreement. If the other Parties proceed
with discussions and agree to an extension, such extension shall be
set forth in a signed amendment to this Agreement, or a new agreement
as such Parties deem appropriate.
3.1.2 Should any Party (i) reasonably determine that the process technology
to be developed under the 300mm Wafer 65nm Bulk CMOS Process
Development Project is no longer meeting the Strategic Technology
Objectives or the Development Schedule; (ii) reasonably determine
that the 300mm Wafer 45nm Bulk CMOS Process Development Project is no
longer meeting the Strategic Goals or the development schedule; or
(iii) bring forth empirical evidence of changes in the competitive
marketplace for semiconductor technology establishing that the 300mm
Wafer 65nm Bulk CMOS Strategic Technology Objectives and/or the 300mm
Wafer 65nm Bulk CMOS Development Schedule, or the 300mm Wafer 45nm
Bulk CMOS Strategic Goals and/or the 300mm Wafer 45nm Bulk CMOS
development schedule, are no longer competitive, such Party may
present such problem to the Management Committee for discussion. If
the Management Committee, after the exercise of reasonable efforts in
the conduct of such discussions, fails to reach unanimous agreement
as to a resolution of such Party's concerns then any Party may refer
such concerns to the senior executives named in Section 18.3, which
senior executives shall discuss and meet in person, if necessary, in
order to attempt to resolve such Party's concerns. If such senior
executives are unable to resolve such Party's concern, the senior
executives agree to instruct the Management Committee to negotiate in
good faith a mutually agreeable reasonable wind down plan, with a
goal of doing so within thirty (30) days (which period of wind down
shall not exceed ninety (90) days and which plan shall include a
reduction or cessation in cost share payments, reduction in or
reallocation of some or all of the staffing, and a final set of
deliverables to transfer Specific Results and/or Background Know-How
previously undisclosed, if any) to terminate the development
relationship set forth in this Agreement. If such wind-down is
initiated for the 300mm 65nm Bulk CMOS Process Development Project,
unless otherwise mutually agreed by the parties the 300mm 45nm Bulk
CMOS Process Development Project shall not continue, and such
wind-down
Page 13
plan shall likewise address the wind-down of 45nm Bulk CMOS joint
development. The Parties agree that the survival provision set forth
in Section 12.2 shall apply to any such termination. For avoidance of
doubt, such wind down shall not be considered a breach of this
Agreement.
3.2 The Parties agree that Exhibit A also sets forth the current, as of the
Effective Date, technology implementation objectives for the 300mm 65nm
Process Development Project. The Parties shall work together to evaluate
the various options available, including individual Process Module
feasibility, integration, characterization and qualification. The goal of
such evaluation is to agree on an integrated process technology that meets
the Strategic Technology Objectives. If the Project Leaders are unable to
agree on a particular Process Module to be developed, or should they
disagree as to continued development of a Process Module that was
previously selected, the Process Module preferred by ***** shall be pursued
in the applicable Process Development Project, provided it is consistent
with foundry industry marketplace requirements and the standard baseline
Bulk CMOS process for such fabrication process generation. ***** may
escalate the failure to agree through the procedures set forth in Section
18.3. In the event that a Party proposes a Process Module or replacement
Process Module that does not get selected after escalation, then such Party
shall have the right to proceed with such development outside the
performance of the Process Development Projects.
3.2.1 For the 300mm Wafer 65nm Bulk CMOS process and the 300mm Wafer 45nm
Bulk CMOS process, the Parties will strive to utilize consumables
(including, but not limited to, photoresist) in the Process
Development Project that will be available to the Parties from
commercial suppliers. However, if a consumable proposed by IBM is an
IBM proprietary consumable, the IBM Project Leader will notify the
Chartered, IFX and Samsung Co-Project Leaders of such proposed
selection, specifying the respects in which the consumable is IBM
proprietary. In addition, within thirty (30) days of such proposed
selection IBM will inform the Third Party supplier of such IBM
proprietary consumable that if such supplier is chosen by IBM, such
supplier may provide such proprietary consumable to Chartered and/or
IFX and/or Samsung irrespective of any IBM imposed restriction or
proprietary rights that might otherwise exist. If after speaking with
such Third Party supplier, Chartered and/or IFX and/or Samsung has a
good faith belief that such supplier will not sell the proprietary
consumable to Chartered and/or IFX and/or Samsung, as the case may
be, then Chartered and/or IFX and/or Samsung, as the case may be, may
escalate the proposed selection of such IBM proprietary consumable
through the process set forth in Section 18.3 within sixty (60) days
of being informed of such proposed selection by IBM.
3.3 Throughout the Term of this Agreement and during the respective Process
Development Projects IBM shall provide Chartered, IFX, and Samsung with
access to all Background Know-How that is used by IBM in the development of
and as part of IBM's foundry baseline 45nm Bulk CMOS and foundry baseline
65nm Bulk CMOS manufacturing processes for 300mm wafers (excluding customer
confidential information and Derivative Processes). Such Background
Know-How shall include, without limitation,
Page 14
Background Know-How relating to past or present semiconductor manufacturing
processes provided by IBM to Chartered and/or IFX and/or Samsung.
Throughout the Term of this Agreement and during the respective Process
Development Projects, Chartered, IFX, and Samsung shall provide to IBM and
to one another access to all Background Know-How that is relevant to the
foundry baseline 45nm Bulk CMOS and foundry baseline 65nm Bulk CMOS
manufacturing processes for 300mm wafers (excluding customer confidential
information and Derivative Processes) through access to their
Representatives who are participating in the Process Development Projects.
The obligations of this Section 3.3 will apply to process generation
substitutes, if any, for 65nm Bulk CMOS and 45nm Bulk CMOS manufacturing
processes for 300mm wafers as agreed by the Management Committee (e.g., if
the Management Committee approves the substitution of 70nm Bulk CMOS for
65nm Bulk CMOS, the obligations of this Section 3.3 will apply to 70nm Bulk
CMOS and not to 65nm Bulk CMOS). For purposes of clarification, the Parties
acknowledge that this obligation as to substitutes does not apply to
intra-generational modifications (i.e., process "shrinks") by any Party.
3.4 For information other than that developed by the Parties in a given Process
Development Project to be considered Background Know-How, it must be either
deliberately provided to the Process Development Projects by the owner of
such information, or be evaluated by the Project Leaders, pursuant to
Section 3.2, for possible use in a Process Development Project.
In the event an owning Party provides to the other Parties information
outside of that which is required to be provided pursuant to Section 3.3,
above, or inadvertently provides information that is unrelated to the
Process Development Projects, then such Party shall have the right to
withdraw such information by notifying in writing the Project Leader of the
other Parties within thirty (30) days after such owning Party's disclosure
that such owning Party is withdrawing such information from use in the
Process Development Projects and all such information in tangible form
associated therewith shall be returned to such owning Party and such
tangible information shall not become Background Know-How. In the event of
such withdrawal, the non-owning Parties shall have the right to use any
non-tangible information related to such information retained in the minds
of the non-owning Party's employees pursuant to Section 9.1. Absent such
notice and withdrawal within thirty (30) days, all information deliberately
provided by the owner of such information shall be treated as Background
Know-How notwithstanding the other provisions of this Agreement.
3.4.1 Any issue as to whether information was within the scope of what is
required to be provided pursuant to Section 3.3 shall be resolved by
the Project Leaders. If the Project Leaders cannot agree, such issue
shall be resolved by the Management Committee.
3.4.2 Each Party shall be responsible for instructing its Representatives
on methods of proper introduction of information into the Process
Development Projects, and the consequences under Section 7.12, below,
of information that is inadvertently obtained.
Page 15
3.5 Each Party shall have access to all contributed or disclosed Background
Know-How and all Specific Results. The Project Leaders will determine the
methods and control procedures for access, which (so long as Chartered and
IFX and Samsung each provides a secure server) shall include access to
databases as appropriate, to such Background Know-How and Specific Results.
3.6 Each Party shall be solely responsible for the cost relating to the
transfer of Background Know-How and Specific Results to its own facilities,
except as may be set forth in separate agreements between the Parties.
3.7 As part of each Process Development Project, the Project Leaders shall
coordinate the completion of the Documentation for such Process Development
Project and each Party shall have access to all such Documentation. Each
Party shall be solely responsible for obtaining any and all regulatory
approvals as may be required to utilize Specific Results at its facilities,
and shall be solely responsible for the cost of equipment and consumables
as may be required to utilize the Specific Results at its facilities.
3.8 Without liability to the other Parties for breach hereof, to the extent
known by a Party disclosing or providing information or materials for use
in any Process Development Project, prior to such disclosure, such
disclosing Party agrees to promptly notify the other Parties of any
limitations on the uses of such information or materials, whether such use
would violate or whether such information or materials is protected by any
confidentiality, copyright or mask work or similar right of any Third
Party. Upon such notification, the Parties may agree to accept such
information or materials into the Process Development Project subject to
such limitations. Upon the failure to make such notification, or if any
such limitation arises after disclosure by the disclosing or providing
Party, then the Parties shall attempt to work together to find a mutually
agreeable solution. Each Party further agrees to use reasonable efforts to
ensure that it will not design or develop the Process Development Projects
in such a way that requires the use of any Third Party confidential
information or any other material which is not available to the other
Parties for its use as provided in this Agreement as part of the Background
Know-How and/or Specific Results. Each Party further agrees to use
reasonable efforts to ensure that it will not disclose to the other Parties
any information considered confidential by it or by any Third Party which
information does not relate to the Process Development Projects.
Moreover, the Parties agree to put in place reasonable procedures to
prevent the dissemination of information developed under this Agreement to
Third Parties (other than as permitted pursuant to Section 7). In the case
of IFX, such procedures shall include barring its personnel who shall work
on the Process Development Projects from working on such development with
UMCi; provided, however, that (i) such prohibition shall lapse one (1) year
after such employee ceases her assignment on the Process Development
Projects; and (ii) such prohibition shall not apply to personnel who are
involved in the permitted disclosures to UMCi under this Agreement.
Page 16
SECTION 4 - MANAGEMENT AND STAFFING OF THE PROCESS DEVELOPMENT PROJECTS
4.1 The Parties hereby create a Management Committee. The responsibilities of
the Management Committee are set forth in Exhibit D, attached hereto. All
decisions of the Management Committee shall be by mutual consent.
The Management Committee is comprised initially of the following
individuals:
(i) For Chartered: Xx Xxxxx Choo Xxxx
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
xxxxxx@xxxxxxxxxxxxxx.xxx
Tel: (00) 0000 0000
Fax: (00) 0000 0000
(ii) For IBM: Xx. Xxxxx Xxxxxxx
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000
xxxxxxxx@xx.xxx.xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(iii) For IFX: Xx. Xxxxx Xxxxxxx
Vice President Platform Technology Development, Corporate Logic
XX Xxx 00 00 00
00000 Xxxxxx, Xxxxxxx
Email: Xxxxx.xxxxxx@xxxxxxxx.xxx
Tel: x00 0 00 000 000 00
Fax: x00 0 00 000-000 92
(iv) For Samsung: Xx. Xx-Xxx Xxxx
Vice President
Advanced Process Development PT
System LSI Division
Semiconductor Business
San #24 Nongseo-Ri, Giheung-Eup
Yongin-City, Gyeonggi-Do, Republic of Korea 449-711
Email : xxxxx.xxxx@xxxxxxx.xxx
Tel : 00-00-000-0000
Fax: 00-00-000-0000
A Party may change its member of the Management Committee by written notice
to the other Parties. The Management Committee will conduct regular
meetings at least once in
Page 17
each calendar quarter on dates and at locations determined by the
Management Committee. Meetings of the Management Committee may be held in
person, by teleconference or by videoconference.
4.1.1 The Management Committee shall establish a regular review process,
at least once in each calendar quarter, with the appropriate senior
business executives of each Party of at least the level of Vice
President or other comparable level. Such review shall include
review of an overall progress report to be prepared by the Project
Leaders. The responsibilities of the Management Committee are set
forth in Exhibit D.
4.2 Each Party shall appoint a Project Leader within thirty (30) days after the
Effective Date. It is the intent of the Parties that Project Leaders be
assigned to the Process Development Projects for no less than two (2) year
terms. The IBM Project Leader shall be in charge of the day-to-day
operations of the Process Development Projects with the assistance of the
Chartered Co-Project Leader, the IFX Co-Project Leader, and the Samsung
Co-Project Leader. Notwithstanding anything to the contrary in this
Agreement or the Exhibits, only the IBM Project Leader and the Chartered
Project Leader shall discuss and agree on Chartered's staffing
contribution, and only the IBM Project Leader and the IFX Project Leader
shall discuss and agree on IFX's staffing contribution, and only the IBM
Project Leader and the Samsung Project Leader shall discuss and agree on
Samsung's staffing contribution. A Party may replace its Project Leader,
named below, by giving written notice to the other Parties of such
replacement. The responsibilities of the Project Leaders are set forth in
Exhibit E.
The Project Leaders shall be:
(i) For Chartered: Xx. Xxxx Xxxxxxxx
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
xxxxxxxxx@xxxxxxxxxxxxx.xxx
Tel: 65- xxxxxxxx
Fax: 65 - xxxxxxxx
(ii) For IBM: Xxxxxxx Xxxx
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000
xxxxx@xx.xxx.xxx
Tel: (000) 000-0000
Fax: (000) 000-0000
(iii) For IFX: Xxxxxx Xxxxxxxxxx
Email: xxxxxx.xxxxxxxxxx@xxxxxxxx.xxx
Tel: 000-000-0000
Page 18
(iv) For Samsung: Dr. Ja-Hum Ku
Advanced Process Development PT
System LSI Division
Semiconductor Business
San #24 Nongseo-Ri, Giheung-Eup
Yongin-City, Gyeonggi-Do, Republic of Korea 449-711
Email : Xxxx.xx@xxxxxxx.xxx
Tel : 00-00-000-0000
Fax : 00-00-000-0000
4.3 In addition to the Project Leaders, each Party will provide Representatives
to work on the Process Development Projects at the ASTC. Exhibit C,
attached hereto, shows the staffing levels expected for such
Representatives. It is the intent of the Parties that such Representatives
be assigned to the Process Development Projects at the ASTC for no less
than two (2) year terms.
The Parties will provide sufficient technical personnel on the Process
Development Projects with the appropriate skills and experience to
accomplish the Strategic Technology Objectives.
4.4 Each Party shall appoint a Technical Coordinator within thirty (30) days
after the Effective Date. The Technical Coordinators shall be:
(i) For Chartered: Xxxxxxx Xxxx
Email: xxxxxxxxxxx@xxxxxxxxxxxxx.xxx
Tel: 000-000-0000
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
(ii) For IBM: Gan Xxx
Email: xxxx@xx.xxx.xxx
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, Xxx Xxxx 00000
xxxx@xx.xxx.xxx
Tel: (000) 000-0000
(iii) For IFX: Xxxxx Xxxx
Email: xxxxx.xxxx@xxxxxxxx.xxx
Tel: 000-000-0000
(iv) For Samsung: TBD
The Technical Coordinators shall be responsible for supervising exchanges
of information among the Parties pursuant to Section 7.2, below. A Project
Leader for a
Page 19
Party may replace the Technical Coordinator for such Party, named above, by
giving written notice to the other Parties' Project Leader of such
replacement.
4.5 Each Party agrees that its Representatives shall comply in all material
respects with all personnel, human resources, security and safety rules,
procedures and guidelines of the other Parties applicable to contractors
resident at or visiting the premises of such other Parties or its
Subsidiaries while such Representatives are on the other Parties' or its
Subsidiary's premises. In particular, each Party's Representatives agree to
abide by the security requirements of a given Party while at the facilities
of that Party. Each Party shall provide to the others in advance a set of
documents setting forth all such rules, procedures and guidelines,
including any updated versions thereof. The Parties' respective visitation
guidelines are set forth in Exhibit F.
4.6 Each Party shall be responsible for the selection of its Representatives
described in Exhibit C, attached hereto, subject to Section 4.2. Personnel
supplied by each Party who are Representatives of the supplying Party shall
not for any purpose be considered employees or agents of any other Parties.
Each Party shall be responsible for the supervision, direction and control,
payment of salary (including withholding of taxes), travel and living
expenses (if any), worker's compensation insurance, disability benefits and
the like of its own Representatives. Each Party shall provide reasonable
assistance to the other by providing letters of invitation, or the like, if
required as part of the application for necessary visas and work permits.
4.7 If any Party should become aware of the existence of any hazardous
conditions, property, or equipment which are under the control of a given
Party it shall so advise that Party; however, it shall remain that
notifying Party's responsibility to take all necessary precautions against
injury to persons or damage to property from such hazards, property, or
equipment until corrected by the notified Party. Each Party agrees to
comply with the applicable Occupational Safety and Health Act ("OSHA"),
applicable OSHA standards, applicable New York safety and health laws and
regulations, any applicable municipal ordinances, and applicable facility
safety rules of which the Party has notice, regarding the Representatives
it assigns to the Process Development Projects at the ASTC, and who are
visiting Chartered's or IFX's or Samsung's manufacturing facilities.
4.8 The Parties agree that the Parties and any Subsidiaries shall refrain from
making any payment or gift of any value to any Representatives of the other
Parties assigned to the ASTC or visiting Chartered's or IFX's or Samsung's
manufacturing facilities without the employing Party's prior written
approval. No Party (or any of its Subsidiaries) may make any representation
that might cause a Representative of any of the other Parties to believe
that an employment relationship exists between such Representative and such
other Party or Parties.
4.9 Except for acts of gross misconduct or gross negligence by a Party (or its
Representatives or Third Party invitees), no Party will be liable to the
other Parties for any injury (including death) to persons or damage to or
loss of property suffered on or about the ASTC or Chartered's or IFX's or
Samsung's manufacturing facilities.
Page 20
4.10 To the extent permitted by law, during the Term of this Agreement, each
Party agrees neither to directly nor indirectly solicit for employment
purposes the Representatives of the other Parties engaged in semiconductor
development in IBM's East Fishkill facility or other Representatives
working on the Process Development Projects until at least one (1) year has
passed between the date such employee stopped being engaged in such
semiconductor development or such transfer support or assistance, as the
case may be, and the date of solicitation, without the prior written
permission of the employer Party. However, the foregoing does not preclude
general (i.e., non-targeted) recruitment advertising. In addition, to the
extent permitted by law, during the Term of this Agreement, each Party
agrees that its units, divisions, line of business or other comparable
organizational structures, involved in the development of semiconductor
process technologies shall not hire Representatives of the other Parties
engaged in the Process Development Projects, without the prior written
permission of the employer Party.
SECTION 5 - COST SHARING
5.1 Chartered's and IFX's and Samsung's cost share payments for the Process
Development Projects under this Agreement shall be as set forth in separate
agreements with IBM. For the avoidance of doubt, each Party's payment
obligations under such separate agreements are a material term of this
Agreement, as between that Party and IBM only, and a breach by such Party
of such obligations shall be considered a breach by only that Party.
Chartered and IFX and Samsung agree to treat this Agreement and/or such
separate agreements as an invoice from IBM for the specified amounts. All
cost share payments are non-refundable once made.
In the event that there is a delay in the Development Schedule set forth in
Exhibit B, the Management Committee shall discuss in good faith and
mutually agree on a commercially reasonable recovery plan. ***** and IBM
shall be solely responsible for any additional cost incurred in executing
such commercially reasonable recovery plan.
5.2 Chartered and IFX and Samsung shall be liable for interest on any overdue
payment under this Agreement commencing on the date such payment becomes
due at an annual rate equal to *****. If such interest rate exceeds the
maximum legal rate in the jurisdiction where a claim therefor is being
asserted, the interest rate shall be reduced to such maximum legal rate.
SECTION 6 - INSURANCE, RESPONSIBILITY FOR RESULTS AND WARRANTIES
6.1 Each Party shall use commercially reasonable efforts with regard to and
perform in a workmanlike manner the Process Development Projects. However,
the Parties acknowledge that the results of the development work to be
performed are uncertain and cannot be guaranteed by any Party. The risk of
success or failure of the Process Development Projects shall be shared by
all Parties. If a Party has exerted commercially
Page 21
reasonable efforts in the performance of its responsibilities under a
Process Development Project, the failure to achieve the Strategic
Technology Objectives, the Development Schedule, or the development
schedule (as the case may be) shall not constitute a breach of this
Agreement.
6.2 Except as otherwise expressly set forth in Section 6.1 above, all items
furnished by a Party to the Process Development Projects and pursuant to
Section 3.6 will be produced or provided by said Party in the same manner
as it produces or provides such items for its own use and will be furnished
on an "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, including, without
limitation, (i) ANY WARRANTY THAT THE SPECIFIC RESULTS AND/OR BACKGROUND
KNOW-HOW WILL BE FREE OF THIRD PARTY CLAIMS OF INFRINGEMENT OF PATENTS,
COPYRIGHTS, TRADE SECRET, OR MASK WORK RIGHTS and (ii) ANY IMPLIED
WARRANTIES OR TERMS OF MERCHANTABILITY AND FITNESS OR USE FOR A PARTICULAR
PURPOSE.
6.3 During the Term of this Agreement, each Party shall maintain comprehensive
general liability insurance of not less than eight million dollars
($8,000,000) per occurrence which covers bodily injury (including death)
and property damage (including, to the extent such insurance is reasonably
available therefor, environmental damage), and which applies to any such
liability the Party may have under this Agreement. The foregoing obligation
can be met with a combination of comprehensive liability insurance
augmented by umbrella liability insurance. Purchase and maintenance of such
insurance shall in no way be interpreted as relieving any Party of any of
its responsibilities hereunder, and each Party may carry, at its expense,
such additional insurance amounts and coverage as it deems necessary. In no
event shall any such insurance be cancelled during the Term of this
Agreement without prior written notice by the insured Party's insurance
carrier to the other Parties.
SECTION 7 - INFORMATION TRANSFERS
7.1 Without any liability to the other Parties for patent infringement or
failure to notify, each Party agrees to promptly notify the other Parties
in writing, of any patents or other intellectual property rights of Third
Parties (other than those of such Party's Subsidiaries) of which it becomes
aware, which, in the sole opinion of said Party, said Party reasonably
believes may relate to the use of Specific Results or Background Know-How.
In such instance, the Parties shall reasonably cooperate with each other to
exchange information related to such potential Third Party intellectual
property issues. However, none of the Parties shall have any obligation
hereunder to conduct patent searches or studies in relation to the Process
Development Projects prior to notifying the other Parties of any licenses
it may have under any particular patent. The Parties recognize that each of
them has patent license arrangements with Third Parties and that it is the
individual responsibility of each Party to secure any rights under the
patents of Third Parties which may be needed to enable it to manufacture
and/or market the product (including products manufactured using the
process technology to be developed under the Process
Page 22
Development Projects) at such time as it determines in its sole judgement
that such action is required.
7.2 Any confidential information disclosed by one Party to another in
performance of the Process Development Projects shall be designated with an
appropriate and conspicuously obvious legend, such as "IBM Confidential" or
"Chartered Confidential" or "IFX Confidential" or "Samsung Confidential,"
as the case may be, such legends to clearly indicate to a person viewing or
otherwise accessing such information that it is of a confidential nature to
the disclosing Party. Any such disclosure that is made orally shall be
confirmed in writing under a like designation within thirty (30) days after
the date of such disclosure. The Technical Coordinators shall monitor and
keep records of all such disclosures of confidential information and shall
ensure that it is properly marked as confidential, and record the date of
receipt. Specific Results generated pursuant to the Process Development
Projects and any confidential information that is included in Specific
Results shall be clearly designated by the Technical Coordinators with an
appropriate legend, such as "C/I/I/S Confidential". For the avoidance of
doubt, for materials created under the Three Way Agreement, such
appropriate legend shall include legends that list less than all four of
the Parties in the case of Specific Results generated pursuant to the 300mm
65nm Process Development Project and the 300mm 45nm Process Development
Project. Notwithstanding the foregoing labelling requirements, Specific
Results and Background Know-How are deemed to be confidential whether or
not labelled as such. Further, in the event that a Representative of any
Party obtains information relating to the Process Development Projects in
tangible form which is not designated as confidential in accordance with
this Section 7.2, but which from its nature appears likely to be
confidential, such Representative will notify the Technical Coordinators
who then will decide whether or not such information can and should be
thereafter treated as confidential. The Technical Coordinators shall either
agree that such information is non-confidential or have all copies of such
information in tangible form promptly marked with the appropriate legend
identifying its confidentiality.
7.3 Except as otherwise provided in this Agreement, with respect to Specific
Results, Background Know-How and any other confidential information of a
Party which is confidential pursuant to Section 7.2 above, the Party
receiving such information shall use the same efforts to avoid the
unauthorized publication or dissemination to Third Parties of such
information as it employs with respect to its own information which it does
not desire to be published or disseminated. For Specific Results of each
Process Development Project and Background Know-How of each Process
Development Project, the obligations of confidentiality shall terminate
seven (7) years after the scheduled date of IBM Qualification and Process
Freeze as set forth in Exhibit B for each applicable Process Development
Project (other than as set forth in the last sentence of the first
paragraph of Section 3.1.1, in the case of the 300mm Wafer 45nm Bulk CMOS
Process Development Project); in the case of Proprietary Tools, this
obligation of confidentiality shall terminate seven (7) years after its
disclosure by the disclosing Party; and for all other confidential
information this obligation of confidentiality shall terminate five (5)
years after its disclosure by the disclosing Party. This obligation shall
not, however, apply to any information that is:
Page 23
7.3.1 already in or comes into the possession of the receiving Party or
its Subsidiaries without obligation of confidence;
7.3.2 now, or hereafter becomes, publicly available without breach of this
Agreement;
7.3.3 rightfully received from Third Parties without obligation of
confidence;
7.3.4 independently developed by the receiving Party or its Subsidiaries;
7.3.5 approved for release by written agreement of the disclosing Party;
or
7.3.6 inherently disclosed in the use, lease, sale or other distribution
of any available product or service or publicly available supporting
documentation therefor by the receiving Party or any of its
Subsidiaries.
7.4 The receiving Party's obligations with respect to Specific Results,
Background Know-How, or any other confidential information of the
disclosing Party as specified in Section 7.3, above, shall not apply to any
disclosure that is:
7.4.1 in response to a valid order of a court or other governmental body
of any country or group of countries or any political subdivision
thereof; provided, however, that the receiving Party shall first
have notified the disclosing Party and made a good faith effort to
obtain a protective order requiring that the information and/or
documents so disclosed be used only for the purposes for which the
order was issued;
7.4.2 otherwise required by law or securities regulations to which the
receiving Party is subject; or
7.4.3 reasonably necessary in order to establish the receiving Party's
rights, provided that such receiving Party shall provide the
disclosing Party with prior written notice, except notice shall not
be required where the receiving Party is attempting to establish
rights in a lawsuit under this Agreement against the disclosing
Party or is filing a patent application.
7.5 Each Party shall have the right to disclose Specific Results and Background
Know-How to any of its Wholly Owned Subsidiaries at any time; provided
however, that such Wholly Owned Subsidiaries shall agree to be bound by
terms consistent with those applicable to said Party under this Section 7
and the survival of same pursuant to Section 12. Further, each Party may
authorize its Wholly Owned Subsidiaries to whom such Party has disclosed
Specific Results or Background Know-How pursuant to this Section 7.5 to
exercise some or all of its rights to disclose Specific Results or
Background Know-How under and in accordance with this Section 7. In
addition, Chartered, IFX and Samsung may disclose to entities in which
their ownership interest is less than that which would qualify as a Wholly
Owned Subsidiary. Chartered's rights to carry out such disclosures is as
set forth in the Previous Agreement, as amended and IFX's rights are as set
forth in Sections 7.5.1 and 7.5.2, below (and as may be set forth in a
separate IBM-IFX bilateral amendment) and Samsung's rights are as set forth
in Section 7.5.3, below:
Page 24
7.5.1 IFX shall have the right to disclose Specific Results and Background
Know-How for each Process Development Project to ***** Joint
Manufacturing Facilities, *****. Such disclosure of Specific Results
and/or Background Know-How shall not occur prior to T1 of the
applicable Process Development Project, and must be subject to a
written agreement between IFX and such recipient Third Party that,
at a minimum, shall have a term of confidentiality consistent with
that set forth herein, and that limits such recipient's use of such
information in accordance with terms and conditions consistent to
those set forth herein.
(a) IFX on behalf of itself and its Subsidiaries hereby agrees
to treat IBM and Chartered as preferred suppliers for Semiconductor
Products fabricated using the Specific Results and Background
Know-How from the Process Development Projects, which means that IFX
and its Subsidiaries shall provide to IBM and Chartered rolling,
long range capacity/production forecasts for such products. As part
of such status as preferred suppliers, prior to any disclosure of
such Specific Results and Background Know-How to such Joint
Manufacturing Facility, IFX and its Subsidiaries shall offer both
IBM and Chartered the opportunity to fabricate the Semiconductor
Products in question. IFX has to take reasonable steps in order to
allow IBM and Chartered a reasonable opportunity to manufacture
Semiconductor Products for IFX that are based on the 65nm and 45nm
Bulk CMOS process. IFX and IBM, or IFX and Chartered, as the case
may be shall negotiate in good faith to establish a manufacturing
agreement that specifies the necessary conditions to satisfy IFX's
manufacturing requirements, e.g., lead time sufficient to install
and qualify the Semiconductor Products, commitment on volume, and
yield plans. IBM and Chartered shall respond in a reasonable period
of time to the IFX requests for a quote for such Semiconductor
Products. IFX shall not carry out such disclosure to such Joint
Manufacturing Facility *****.
(b) Information that would disclose detailed aspects of
Specific Results and Background Know-How for a given Process
Development Project, including but not limited to process recipes,
tool settings, specific process flows, or manufacturing process
specifications, shall only be disclosed to those IFX employees in
such Joint Manufacturing Facility, and employees of such Joint
Manufacturing Facility itself (including those who may have been
employees of the other owner of such Joint Manufacturing Facility),
that in IFX's opinion and sole discretion have a need to know for
purposes of carrying out their duties in such Joint Manufacturing
Facility. The foregoing information shall not be transferred to the
other owner of such Joint Manufacturing Facility, employees of such
other owner(s) (except as set forth in the following sentence), or
any other Third Party. Without limiting the foregoing, the Parties
agree that incidental access to general aspects of Specific Results
and Background Know-How (e.g. as part of normal operational
briefings) by employees of such other owner that are otherwise
resident at or assigned to such Joint Manufacturing Facility shall
not be considered a breach of this Section 7.5.1;
Page 25
(c) Such Joint Manufacturing Facility to which Specific Results
and Background Know-How have been disclosed shall pay a royalty of
*****. Such royalty shall be due and payable upon shipment to the
other owner for all production wafers fabricated utilizing any
Process Module of (i) the 300mm Wafer 65nm CMOS Specific Results and
Background Know-How, and/or (ii) the 300mm Wafer 45nm Bulk CMOS
process Specific Results and Background Know-How, within ***** from
the date of the first production shipment of such wafers fabricated
utilizing each respective process, respectively. All such royalties
shall be payable directly from such Joint Manufacturing Facility to
the Parties within thirty (30) days after the end of each calendar
quarter, by electronic funds transfer to the respective accounts set
forth in Section 13.1. In addition, the Joint Manufacturing Facility
shall submit to the Parties a report setting forth the quantity of
such wafers sold to the other owner and total net selling price for
the previous quarter. Such report shall be submitted within thirty
(30) days after the end of each calendar quarter to (in the case of
IBM, the Director of Licensing at the address set forth in Section
13.1.1, and in the case of Chartered, the Chief Financial Officer as
set forth in Section 13.1.1), whether or not any royalty is due for
such quarter; and
(d) IBM and/or Chartered shall have the right to appoint an
independent, internationally recognized auditor, to audit, at a
frequency of not more than once per year (or up to twice a year, for
the 12 month period following an audit indicating a noncompliance),
on thirty (30) days prior notice, the applicable records of such
Joint Manufacturing Facility, to verify that it is abiding by the
royalty obligations of Section 7.5.1(c). For the avoidance of doubt,
such auditor shall provide an audit on behalf of both IBM and
Chartered, and unless otherwise agreed by IFX, IBM and Chartered
shall not be entitled to carrying out separate audits. Such audits
shall be carried out during the normal business hours of such Joint
Manufacturing Facility. IBM and Chartered shall bear the cost of
such audit unless such audit indicates a noncompliance, in which
case such Joint Manufacturing Facility shall bear the cost of such
audit.
7.5.2 In addition, IFX may disclose Specific Results and Background
Know-How to ***** Third Party have-made manufacturers, one of which
may be UMCi, solely for the purpose of having such Third Party
manufacturer fabricate Semiconductor Products solely for IFX and its
Subsidiaries. Such disclosure and use shall be subject to the
following:
(a) such disclosure of Specific Results and/or Background
Know-How shall not occur prior to T1 of the applicable Process
Development Project, and must be subject to a written agreement
between IFX and such recipient Third Party that, at a minimum, shall
have a term of confidentiality consistent with that set forth
herein, and that limits such recipient's use of such information in
accordance with terms and conditions consistent to those set forth
herein;
Page 26
(b) prior to any disclosure hereunder to a Third Party
manufacturer, IFX and its Subsidiaries shall offer both IBM and
Chartered the opportunity to fabricate the Integrated Circuits in
question. IFX has to take reasonable steps in order to allow IBM and
Chartered a reasonable opportunity to manufacture Semiconductor
Products for IFX that are based on the 65nm and 45nm Bulk CMOS
process. IFX and IBM, or IFX and Chartered, as the case may be shall
negotiate in good faith to establish a manufacturing agreement that
specifies the necessary conditions to satisfy IFX's manufacturing
requirements, e.g., lead time sufficient to install and qualify the
Semiconductor Products, commitment on volume, and yield plans. IBM
and Chartered shall respond in a reasonable period of time to the
IFX requests for a quote for such Semiconductor Products. *****;
(c) (i) for disclosures to entities other than Foundry
Companies, such disclosures shall be limited to those specific
aspects of Specific Results and Background Know-How that are
reasonably necessary for such Third Party manufacturer to alter its
applicable semiconductor fabrication process to meet the
specification for the product to be fabricated; and (ii) for
disclosures to entities that are Foundry Companies, such disclosures
of such aspects as are reasonably necessary for such Third Party
manufacturer to alter its applicable semiconductor fabrication
process to meet the specification for the product to be fabricated,
and such disclosures shall be limited to not more than ***** of a
given 65nm Bulk CMOS or 45nm Bulk CMOS process of the applicable
Process Development Project. (By way of example, if the 300mm 65nm
Bulk CMOS process has a ***** may be so disclosed to such Foundry
Companies.)
7.5.3 In addition to Wholly Owned Subsidiaries, Samsung shall have the
right to disclose Specific Results and Background Know-How to up to
***** of Samsung's Subsidiaries that meet the criteria defined in
this Section 7.5.3 (such Subsidiaries being referred to as "Samsung
Manufacturing Subsidiaries"). *****. Samsung may authorize such
sublicensed Samsung Manufacturing Subsidiaries to whom it has
disclosed Specific Results and Background Know-How to exercise some
or all of Samsung's rights to disclose such information in
accordance with Section 7.6. Such sublicensed Samsung Manufacturing
Subsidiaries shall have no other right to disclose such information.
7.5.3.1 No other owner of such Samsung Manufacturing Subsidiary
shall control the manufacturing operations of such Samsung
Manufacturing Subsidiary, and the chief executive officer of such
facility shall be appointed by Samsung.
7.5.3.2 The other owner(s) of such Samsung Manufacturing
Subsidiaries shall not be a ***** or ***** and shall be solely those
entities that are *****, *****, making a capacity reservation in
such Manufacturing Subsidiary; or (iv) IFX., Chartered or IBM. The
Samsung Manufacturing Subsidiaries may not have more than *****
other owners that are integrated device manufacturers.
7.5.3.3 *****.
Page 27
7.5.3.4 The Samsung Manufacturing Subsidiary shall conduct periodic
employee training concerning confidentiality obligations, and shall
take other operational steps (such as establishing a
password-protected database information system) as Samsung employs
with its own manufacturing information and know-how to ensure
compliance with the applicable provisions of this Section 7.5.3 in
such Samsung Manufacturing Subsidiary.
7.5.3.5 Information that would disclose detailed aspects of Specific
Results and Background Know-How, including but not limited to
process recipes, tool settings, specific process flows, or
manufacturing process specifications, shall only be disclosed to
those Samsung employees and employees of such Samsung Manufacturing
Subsidiary that have a need to know for purposes of carrying out
their duties in such Samsung Manufacturing Subsidiary. The foregoing
information shall not be transferred to other owners(s) of such
Samsung Manufacturing Subsidiaries, employees of such other
owner(s), or any other third party.
7.5.3.6 The Samsung Manufacturing Subsidiary shall lease, sell, or
otherwise transfer Semiconductor Product that it manufacturers using
Specific Results and Background Know-How, or derivatives thereof
solely to Samsung, or Samsung's customers on behalf of Samsung on a
"have made" basis. For avoidance of doubt, the foregoing limitation
set forth in this Section 7.5.3.6 shall cease after the period of
***** from the applicable scheduled IBM Qualification and Process
Freeze date for the respective Process Development Project as set
forth in Exhibit B (in the case of information from the 65nm Bulk
CMOS Process Development Project) and as set forth in an exhibit for
the 45nm Bulk CMOS Process Development Project (in the case of
information from the 45nm Bulk CMOS Process Development Project).
7.5.3.7 Such disclosure to the Samsung Manufacturing Subsidiaries
must not occur ***** and must be subject to a written agreement
between Samsung and such Samsung Manufacturing Subsidiary that, at a
minimum, shall have (i) a term of confidentiality consistent with
that set forth herein, (ii) limitations on such recipient's use of
such information in accordance with terms and conditions consistent
to those set forth herein, and (iii) third party beneficiary status
for the benefit of IBM and its Subsidiaries with an independent
right to enforce the terms of (i) and (ii) above.
7.6 Chartered, Samsung and IFX shall have the right (in addition to its other
rights under this Section 7) to disclose those aspects of Specific Results
and/or Background Know-How to contractors, suppliers, and consultants as
may be reasonably necessary, solely for the purpose of enabling such Third
Parties to assist Chartered or Samsung or IFX, as the case may be, in
exercising its rights granted under this Agreement. By way of example and
not limitation, examples of the general types of information the Parties
agree are "reasonably necessary" for disclosure to such contractors,
suppliers, and consultants are as follows:
Page 28
7.6.1 specifications for masks, materials, chemicals, consumables and/or
equipment, to contractors or suppliers;
7.6.2 process information as required to have equipment maintained, to
tool vendors; and
7.6.3 equipment lists and simple process flow information (excluding
detailed process flow information or detailed process
specifications), as necessary in order to enable installation of
Specific Results and/or Background Know-How.
Such disclosures cannot be made without a written agreement between
Chartered or IFX or Samsung and the recipient Third Party that, at a
minimum, shall have a term of confidentiality consistent with that set
forth herein and that limits such recipient's use of such information in
accordance with terms and conditions consistent with those set forth
herein.
7.6A In addition, IFX shall have the right to disclose to any party at any time
design information that reflects performance attributes of Semiconductor
Product designs targeted for fabrication using the Specific Results and/or
Background Know-How. Such disclosure shall not occur ***** as specified in
Exhibit B for the applicable Process Development Project, and shall be made
solely for the purpose of obtaining quotes for fabrication of such
Semiconductor Products, and/or to have such Semiconductor Products
fabricated by a third party solely on behalf of IFX or its Subsidiaries,
and such Third Party may utilize such design information solely in
furtherance of such purpose. Such design information shall be directed to
design elements typically used by customers to specify designs and design
requirements to a foundry, such as (by way of example and not limitation)
electrical and physical groundrules, SPICE models, and transistor
characteristics; for the avoidance of doubt, such design information shall
only be design requirements and not the implementation of such
requirements. Examples of such excluded implementation information include
data manipulation for lithographic optimization, process recipes, tool
settings, specific process flows, or manufacturing process specifications,
and nothing in this Section 7.6A shall be interpreted as enlarging the
scope of permitted disclosures of such Specific Results and Background
Know-How beyond what is set forth elsewhere in this Section 7.
Such disclosures cannot be made without a written agreement between IFX and
the recipient Third Party that, at a minimum, shall have a term of
confidentiality consistent with that set forth herein and that limits such
recipient's use of such information in accordance with terms and conditions
consistent with those set forth herein.
7.7 Chartered and IFX and Samsung shall have the right (in addition to its
other rights under this Section 7) to disclose those aspects of Specific
Results and/or Background Know-How, to customers, design service providers,
electronic design and automation (EDA) vendors, and providers of circuit
designs or libraries (such as providers of cores and other IP blocks) as
may be reasonably necessary, solely for the purpose of enabling such Third
Parties to assist Chartered or IFX or Samsung in exercising its rights
under this Agreement. By way of example and not limitation, examples of the
general types of
Page 29
information the Parties agree are "reasonably necessary" for disclosure to
such customers, design service providers, electronic design and automation
(EDA) vendors, and circuit design providers are as follows:
7.7.1 Process roadmap and development schedule for Process Development
Projects;
7.7.2 Time schedule for development of device model library, and SPICE
parameters;
7.7.3 Design rules for each Process Development Project; and
7.7.4 Simplified process flow information (indicative of rough number of
process and mask steps and excluding detailed process flow
information and detailed process specifications).
In addition, Chartered and IFX and Samsung may disclose and sublicense (in
addition to its other rights under this Section 7) to EDA vendors and circuit
design or library providers information of the type set forth in subsections
7.7.1 through 7.7.4 where such disclosure and sublicense will directly or
indirectly enable or benefit Chartered's foundry business or IFX's business or
Samsung's business, as the case may be, in connection with the manufacture and
sale of wafers, acknowledging that such Third Parties may license for their own
benefit the resultant EDA software and/or cores or IP blocks to parties other
than Chartered or IFX or Samsung, as the case may be. Such disclosures cannot be
made without a written agreement between Chartered or IFX or Samsung, as the
case may be, and the recipient Third Party that, at a minimum, shall have a term
of confidentiality consistent with that set forth herein and that limits such
recipient's use of such information in accordance with terms and conditions
consistent with those set forth herein; provided, however, that in the case of
disclosure of the items listed in 7.7.1-7.7.4, and/or design rule manuals,
device models, checking decks, electrical characterization information, model
information, and model to hardware correlation, the term of confidentiality
shall be for five (5) years from the date of disclosure.
7.8 Chartered and IFX and Samsung shall have the right (in addition to its
other rights under this Section 7) to disclose such aspects of Specific
Results and/or Background Know-How, to its customers as may be reasonably
necessary, solely for the purpose of enabling Chartered or IFX or Samsung
to develop a Derivative Process for the manufacture of Semiconductor
Products solely for such customer and to manufacture Semiconductor Products
for such customer. The resultant Derivative Process may be used by
Chartered or IFX or Samsung, as the case may be, to manufacture
Semiconductor Products for future customers, but such future customers will
not get any access to any of the Specific Results and/or Background
Know-How, except as otherwise set forth in this Section 7. By way of
example and not limitation, examples of the general types of information
the Parties agree are "reasonably necessary" for disclosure to such
customers for such purposes are as set forth in Section 7.7.
7.8.1 In addition, IFX may disclose Specific Results and/or Background
Know-How to a Third Party co-developer, for the purpose of creating
a Derivative Process in conjunction with such recipient. Such Third
Party co-developer shall have the right to utilize such Derivative
Process to manufacture Semiconductor Products
Page 30
for lease, sale, or other transfer to IFX and to other parties. The
Derivative Process that is to be created hereunder must be a
significantly different device technology (by way of example, flash
EEPROM or eDRAM) from that developed under the applicable Process
Development Project. Such disclosure and use shall be subject to the
following:
(a) *****;
(b) *****;
(c) *****
(d) *****
*****.
For all disclosures pursuant to this Section 7.8, such disclosures cannot
be made without a written agreement between Chartered or IFX or Samsung, as
the case may be, and the recipient Third Party that, at a minimum, shall
have a term of confidentiality consistent with that set forth herein and
that limits such recipient's use of such information in accordance with
terms and conditions consistent with those set forth herein.
7.9 IBM shall have the right to disclose Specific Results and Background
Know-How to any Subsidiary or any Third Party, at any time and for any
purpose, and such recipients shall have the right to disclose Specific
Results and Background Know-How to others, provided that such disclosures
shall be subject to appropriate confidentiality terms that, at a minimum,
shall have a term of confidentiality consistent with that set forth herein
and that limit such recipient's use of such information in accordance with
terms and conditions consistent with those set forth herein. For the
avoidance of doubt, IBM's rights to disclose Specific Results and
Background Know-How to Foundry Companies and Pure Play Foundries shall be
as set forth in the Previous Agreement, as amended.
7.10 If the Parties do not agree to extend the 300mm Wafer 45nm Bulk CMOS
Process Development Project past *****, Chartered and IFX shall have the
right (in addition to its other rights under this Section 7) to disclose
Specific Results and/or Background Know-How, to their respective Joint
Development Partners. Chartered's rights to carry out such disclosures is
as set forth in the Previous Agreement, as amended. IFX's rights to carry
out such disclosures shall be as follows (and as may be set forth in an
IBM-IFX bilateral agreement):
7.10.1 *****.
7.10.2 the joint development relationship between IFX and the Joint
Development Partner(s) must be set forth in a written agreement that
includes
(a) *****;
(b) *****;
Page 31
(c) provisions imposing a term of confidentiality consistent with that
set forth herein and limiting such recipient's use of such information in
accordance with terms and conditions consistent with those set forth
herein.
7.10A *****. Samsung's rights to carry out such disclosures shall be as
follows:
7.10A.1 *****.
7.10A.2 the joint development relationship between Samsung and the
Joint Development Partner must be set forth in a written agreement that
includes
(a) *****;
(b) *****;
(c) provisions imposing a term of confidentiality consistent with that
set forth herein and limiting such recipient's use of such information in
accordance with terms and conditions consistent with those set forth
herein.
7.11 Chartered and IFX shall have the right (in addition to its other rights
under this Section 7) to disclose the Specific Results and Background
Know-How from the respective Process Development Projects, as part of a
license of substantially the entirety of Chartered's or IFX's, as the
case may be, 300mm 65nm Bulk CMOS process technology or 300mm 45nm Bulk
CMOS process technology, as set forth in the Previous Agreement, as
amended (in the case of Chartered) and as set forth in Section 7.11.1,
below in the case of IFX (and as may be set forth in an IBM-IFX bilateral
agreement). In addition, IFX and Samsung shall have the right set forth
in Section 7.11.2:
7.11.1 *****. The Parties understand and agree that IFX shall not
utilize the disclosure right set forth in this 7.11.1 so as to
circumvent IFX's obligations, as set forth elsewhere in this
Agreement, to source manufacturing capacity for 300mm 65nm Bulk
CMOS process technology and/or 300mm 45nm Bulk CMOS process
technology at IBM and Chartered. *****.
Such disclosures cannot be made without a written agreement
between IFX and the recipient Third Party that, at a minimum,
shall have a term of confidentiality consistent with that set
forth herein and that limits such recipient's use of such
information in accordance with terms and conditions consistent
with those set forth herein.
7.11.2 In addition, IFX and Samsung shall each have the right to
disclose Specific Results and Background Know-How for a given
Process Development Project to any Third Party, *****. Such
disclosures cannot be made without a written agreement between
such disclosing Party and the recipient Third Party that, at a
minimum, shall have a term of confidentiality consistent with
that set forth herein
Page 32
and that limits such recipient's use of such information in
accordance with terms and conditions consistent with those set
forth herein.
7.12 With respect to information that does not relate to the Process Development
Projects and which is considered confidential by any Party, it is not the
intention of any Party to disclose to or obtain from another Party any such
information. In particular, the Parties acknowledge that IBM has other
development projects and relationships being conducted in the ASTC
facility, and the Parties shall take reasonable precautions to limit the
disclosure and receipt of information unrelated to Process Development
Projects. In the event that a Representative of a Party inadvertently
obtains any such information of another Party that is designated as
confidential or which should from its nature be understood to be
confidential, the Technical Coordinator of the owning Party shall be
informed, and any such information in tangible form shall promptly be
returned to such owning Party. Nothing in this Agreement shall convey any
right to said Party to use said tangible information for any purpose.
However, any non-tangible information related to said information which is
retained in the minds of the Party's employees will be treated pursuant to
Section 9.1.
SECTION 8 - LICENSES TO BACKGROUND KNOW-HOW
8.1 IBM hereby grants to Chartered, Samsung, and IFX, and Chartered, Samsung,
and IFX hereby grant to one another, under their respective trade secret,
know-how, copyright, and mask work rights, ***** (except as set forth in
Section 12.5 of this Agreement), license to use the granting Party's
Background Know-How for the purpose of researching, developing,
engineering, manufacturing, using, operating, marketing, selling, servicing
and otherwise disposing of Integrated Circuits and/or Semiconductor
Products, including researching, developing, engineering, manufacturing,
operating, servicing and otherwise using process technologies for
semiconductor devices, and such license shall include the right to make
derivatives of such information (including Derivative Processes and Future
Technologies, including with Third Parties pursuant to Section 3.1.1) for
such uses. In the case of copyrightable materials, such license includes
the right to reproduce, create derivative works of, distribute, use,
execute, and display and perform (publicly and otherwise) such
copyrightable materials to the extent consistent with the provisions of
Section 7. In the case of mask work rights, such license includes the right
to use any process-related mask design information provided to a Process
Development Project (e.g. kerf test structures) and create derivative works
thereof. Chartered, Samsung, and IFX shall have the right to sublicense its
rights and shall have the right to have Third Parties exercise the licenses
granted herein on behalf of Chartered, Samsung, or IFX, as the case may be,
under this Section 8.1, but such sublicensing is permitted only to the
extent such sublicensing is consistent with Section 7. For the avoidance of
doubt, Chartered, IFX and Samsung shall have the same rights and
obligations in and to Derivative Processes and Future Technologies as they
do for Specific Results and Background Know-How hereunder.
8.2 Chartered, Samsung, and IFX each hereby grant to IBM, under its trade
secret, know-how, copyright, and mask work rights, a ***** (except as set
forth in Section 12.5 of this Agreement), license to use such Background
Know-How for the purpose of researching,
Page 33
developing, engineering, manufacturing, using, operating, marketing,
selling, servicing and otherwise disposing of Integrated Circuits and/or
Semiconductor Products, including researching, developing, engineering,
manufacturing, operating, servicing and otherwise using process
technologies for semiconductor devices and such license shall include the
right to make derivatives of such information (including Derivative
Processes and Future Technologies) for such uses. In the case of
copyrightable materials, such license includes the right to reproduce,
create derivative works of, distribute, use, execute, and display and
perform (publicly and otherwise) such copyrightable materials to the extent
consistent with the provisions of Section 7. In the case of mask work
rights, such license includes the right to use any process-related mask
design information provided to a Process Development Project (e.g. kerf
test structures) and create derivative works thereof. IBM shall have the
rights to sublicense its rights and shall have the right to have Third
Parties exercise the licenses granted herein on behalf of IBM under this
Section 8.1, but such sublicensing is permitted only to the extent such
sublicensing is consistent with Section 7.
8.3 Each Party agrees to not unreasonably withhold the granting, upon request
by another Party or the other Parties or by a recipient to whom disclosure
has been made pursuant to Section 7, of a non-exclusive license under such
Party's patents, under reasonable and non-discriminatory terms and
conditions, to the extent necessary for such other Party or Parties or such
recipient to utilize the disclosed information for the purposes set forth
in this Agreement.
8.4 No license or other right is granted herein by any Party to another Party,
or the other Parties, directly or indirectly, by implication, estoppel or
otherwise, with respect to any trade secrets, know-how, copyrights, mask
works, patents, patent applications, utility models, or design patents
except as expressly set forth in this Agreement, and no such license or
other right shall arise from the consummation of this Agreement or from any
acts, statements or dealings leading to such consummation. The Parties
expressly understand and acknowledge that any patent license rights that
may be required to carry out the licenses set forth in this Agreement are
set forth in separate agreements between them or in Section 8.5.
8.5 Chartered, Samsung, and IFX each hereby grant to one another and to their
respective Wholly Owned Subsidiaries ***** license under their Licensed
Patents to make, have made, use, lease, sell, import, and offer for sale
Integrated Circuits and Semiconductor Products, solely to the extent such
Licensed Patents have claims that are necessarily infringed by the grantee
utilizing all or any aspect of the Specific Results and Background Know-How
of a Process Development Project to the extent otherwise licensed to do so
elsewhere in this Section 8. For the avoidance of doubt, such patent
license shall not extend to patents that claim Chip Designs.
SECTION 9 - LICENSE TO RESIDUALS AND PROPRIETARY TOOLS
9.1 Each Party shall be free to use and disclose the residuals of Specific
Results, other Parties' Background Know-How, and Proprietary Tools, if any,
and other confidential information received pursuant to Section 7.2, above,
for any purpose, including use in the
Page 34
development, manufacture, marketing, and maintenance of any products and
services. The term "residuals" means that information in non-tangible form
that may be mentally retained by those Representatives of a Party who have
had access to Specific Results, Background Know-How or Proprietary Tools,
if any, of the other Parties, pursuant to this Agreement. For the avoidance
of doubt, residuals includes solely those general aspects of Specific
Results, Background Know-How, or Proprietary Tools that become part of the
knowledge base of such Representatives, and this Section 9.1 shall not be
interpreted as permitting such Representatives to disclose specific aspects
of such information other than as set forth in Sections 7 and 8 of this
Agreement. The Parties agree that the receipt of Specific Results, the
Background Know-How, or the Proprietary Tools, if any, of the other Party
or Parties shall not create any obligation in any way limiting or
restricting the assignment and/or reassignment of a Party's Representatives
within that Party and its Wholly Owned Subsidiaries.
9.2 Each Party grants to the other Parties under the Proprietary Tools provided
by that Party for use in the Process Development Projects, ***** license to
use, execute, display, and perform such Proprietary Tools in IBM's
Microelectronics Division for the purpose of the Process Development
Projects. Any Proprietary Tools that are introduced into IBM's
Microelectronics Division for the purpose of the Process Development
Projects may not be transferred from IBM's Microelectronics Division or
used by a Party outside IBM's Microelectronics Division without the express
written consent of the Party introducing the Proprietary Tool(s). In the
case of the 300mm 65nm Process Development Project and the 300mm 45nm
Process Development Project, the Parties will use commercially reasonable
efforts to use Proprietary Tools for which there are commercially available
alternatives. If, nonetheless, a Party uses (in connection with the Process
Development Projects) Proprietary Tools that are not available from another
source or for which there is no reasonable substitute that is commercially
available, such Party will provide, to the extent it has the right to do
so, such Proprietary Tools (together with documentation, if any, that
exists as of the date of such license grant) to the other Parties. To the
extent it has the right to do so, and on terms and conditions (which shall
include reasonable fees such as those for maintenance, support and porting,
if any) to be negotiated, such Party would grant a ***** license to the
other Parties to use, execute, display and perform such Proprietary Tools,
inside or outside the Process Development Projects in furtherance of
completion of Chartered Qualification and Process Freeze activities,
Samsung's Qualification and Process Freeze Activities, or IFX's
Qualification and Process Freeze activities, respectively. For any
Proprietary Tool, IBM shall provide commercially reasonable assistance to
Chartered, Samsung, and/or IFX in identifying a commercially available
substitute.
SECTION 10 - OWNERSHIP OF SPECIFIC RESULTS
10.1 Except with respect to patent rights in and to Designated Inventions as set
forth in Section 11, Specific Results (whether developed solely by one
Party or jointly by the Parties) shall be the property of the Parties,
which shall own the mask work, copyright, trade secret, know-how and other
intellectual property rights therein jointly and equally, without any duty
of accounting to one another or obligation to obtain the consent of one
another for the exploitation thereof or granting of licenses (including the
right of
Page 35
licensees to grant sublicenses) with respect thereto consistent with
Section 7. Moreover, for the avoidance of doubt, this Agreement shall
constitute written consent of such joint owners for the disclosing Party to
make the disclosures set forth in Section 7, to the extent such joint
consent is required in a given jurisdiction; provided, however, that such
assent is subject to the terms and conditions of this Agreement. Before
applying to register or record in any country any of the rights or material
to which this Section 10 relates, the Parties shall hold consultations and
agree on whether this is appropriate and, if so, which of them shall make
such application and in which countries. To the extent required to perfect
the Parties' joint ownership rights, each Party hereby agrees to assign to
the other Parties an equal, undivided ownership of all right, title and
interest (including, without limitation, all intellectual property rights)
in and to all Specific Results other than patent rights in and to
Designated Inventions.
10.2 Notwithstanding the joint ownership by the Parties of all Specific Results,
disclosures of Specific Results shall be subject to Section 7.
SECTION 11 - INVENTIONS
11.1 Any and all patent rights in and to each Designated Invention made solely
by one Party hereto, including title to all patent applications filed
thereon and all patents issued thereon, shall be solely the property of the
inventing Party, subject to the licenses set forth in Section 11.3. For the
avoidance of doubt, the term "patent rights" includes all patent-related
rights in patent applications, and any and all utility models, design
patents, reissues, re-examinations, and other patent grants therefrom, as
they may exist throughout the world. Furthermore, for the avoidance of
doubt such sole ownership in and to such patent rights shall not be
interpreted as applying to the copyrights, trade secrets, mask works, and
other non-patent intellectual property rights in and to such Designated
Inventions, which shall remain jointly owned pursuant to Section 10.
Notwithstanding such joint ownership in such non-patent rights, the other
owners of such non-patent rights hereby grants its irrevocable assent to
the owner of such patent rights to solely control the content, filing,
prosecution, and issuance of any and all patent rights in and to such
Designated Inventions. Moreover, to the extent required in a given country
in which such patent rights are applied for, the other Parties hereby
agrees to execute such assignments and other documents as may be required
to memorialize the filing Party's sole ownership of such patent rights.
11.2 Designated Inventions made jointly by one or more Representatives or
contractors of one Party with one or more Representatives or contractors of
any other Party or Parties, and title to all patent applications filed
thereon and all patents issued thereon, shall be jointly owned by the
inventing Parties. Each owning Party shall have the right to grant licenses
(including the right of any licensee to grant sublicenses) to their
Subsidiaries and/or to Third Parties under any patent issued on such a
joint Designated Invention without compensation to the other owning Party
or Parties, which hereby gives any necessary consent for granting such
licenses as may be required by the law of any country. All expenses, other
than internal patent department expenses of the owning Parties, incurred in
obtaining and maintaining such patents shall be equally shared by the
owning Parties (except as provided hereinafter). Prior to filing any patent
application in respect of any
Page 36
such joint Designated Inventions, the owning Parties shall hold
consultations and agree on whether this is appropriate and, if so, which of
them shall file and prosecute such application and in which countries
corresponding applications shall be filed and by whom. All subsequent costs
shall be handled pursuant to the following: With respect to any joint
Designated Invention, where one Party elects not to seek or maintain such
protection thereon in any particular country or not to share equally in the
expenses thereof, the other owning Party or Parties shall have the right to
seek or maintain such protection in said country at its or their own
expense and shall have full control over the prosecution and maintenance
thereof even though title to any patent issued thereon shall be joint.
11.3 With respect to patents issued on said Designated Inventions other than
joint Designated Invention, the license granted amongst the Parties shall
be as set forth in separate agreements between them or in Section 8.5.
11.4 Each Party shall give the owning Party or Parties all reasonable assistance
in connection with the preparation or prosecution of any patent application
filed by said owning Party or Parties and shall cause to be executed all
assignments and other instruments and documents as said owning Party or
Parties may consider necessary or appropriate to carry out the intent of
this Section 11.
11.5 Nothing in this Agreement shall affect any patent license agreements
between the Parties currently existing.
11.6 The Project Leaders shall establish a Joint Patent Review Committee
comprising members from each Party, which shall establish a procedure for
reviewing joint Invention disclosures in order to determine which joint
Inventions should be filed as patent applications.
SECTION 12 - TERM AND TERMINATION
12.1 This Agreement shall be in effect from the Effective Date and, unless
previously terminated as hereinafter set forth and shall end on *****,
unless otherwise extended by mutual agreement of the Parties as a result of
a change to the 300mm Wafer 45nm Bulk CMOS Process Development Project
development schedule, as defined in Section 3.1, above. If the Parties do
not agree on the Strategic Goals for the 300mm 45nm Bulk CMOS Process
Development Project by *****, then this Agreement shall expire on *****
unless otherwise extended by mutual agreement of the Parties as a result of
a change to the 300mm Wafer 65nm Bulk CMOS Process Development Project
Development Schedule, as defined in Section 3.1, above.
12.2 At expiration or termination (except as set forth in Section 12.5, below)
of this Agreement, Sections 1; 3.8, 4.9; 6; 7.1, 7.3-7.12 inclusive; 8; 9;
10; 11; 12; 13; 15; 16; 17 and 18 shall survive and continue after the date
of such expiration and shall bind the Parties and their legal
representatives, successors and assigns. The Parties agree that failure to
list any Sections as surviving does not prejudice any Party's remedies with
respect thereto.
Page 37
12.3 Any non-affected Party shall have the right to immediately terminate this
Agreement with respect to the affected Party by giving written notice of
termination to such Party, if such Party 1) permanently ceases doing
business; 2) is adjudged bankrupt or insolvent or files a petition for
bankruptcy; 3) goes into liquidation; 4) has anything analogous to any of
the foregoing occur under the laws of Singapore or Germany or the Republic
of Korea, as applicable to the affected Party; or 5) undergoes a Change of
Control.
12.4 If a Party to this Agreement fails to perform or violates any material
obligation of this Agreement, then, upon thirty (30) days written notice to
the breaching Party specifying such failure or violation (the "Default
Notice"), the non-breaching Party or Parties, as the case may be, may
terminate this Agreement, without liability, and without termination as to
the other Party or Parties that is not in breach, unless:
The failure or violation specified in the Default Notice has been cured
within a thirty (30) day period; or
The failure or violation reasonably requires more than thirty (30) days to
correct (specifically excluding any failure to pay money), and the
breaching Party has begun substantial corrective action to remedy the
failure or violation within such thirty (30) day period and diligently
pursues such action, in which event, termination shall not be effective
unless sixty (60) days has expired from the date of the Default Notice
without such corrective action being completed and the failure or violation
remedied.
12.5 Notwithstanding any provision to the contrary elsewhere in this Agreement,
(a) if a non-breaching Party terminates this Agreement with respect to a
breaching Party as a result of a material breach of this Agreement that is
caused by Representative(s) of the breaching Party who engaged in any gross
and/or willful misconduct that resulted in such material breach and such
material breach results in substantial harm to the non-breaching Party or
Parties, or (b) if a non-breaching Party or Parties terminates this
Agreement with respect to the breaching Party as a result of a material
breach of the confidentiality obligations of Section 7, which results in
substantial harm to the non-breaching Party or Parties, the non-breaching
Party or Parties shall have the right to terminate the disclosure rights
and licenses granted to the breaching Party pursuant to Sections 7 and 8,
respectively. Provided however that an intentional material breach of the
confidentiality obligations of Section 7 by an employee of the breaching
Party acting outside the scope of his/her employment (i.e., acting without
either the knowledge of or the actual or implied consent of such employee's
management) shall not constitute a cause for termination of the disclosure
rights and licenses. If such disclosure rights and licenses are terminated,
the breaching Party shall immediately return to the non-breaching Party or
Parties, or destroy, any documentation or materials provided by the
non-breaching Party or Parties embodying Specific Results and/or Background
Know-How, and such return or destruction shall be certified to the
non-breaching Party or Parties, in writing, by an officer of the breaching
Party. Notwithstanding any such termination of licenses and disclosure
rights to the breaching Party, the rights granted by the breaching Party to
the non-breaching Party or Parties or to Third Parties shall survive and
remain in full force and effect. Notwithstanding the provision in Section
18.3 allowing a Party to institute a proceeding seeking a preliminary
injunction, a temporary restraining order, or other
Page 38
equitable relief without first engaging the dispute resolution process,
termination of licenses in accordance with this Section 12.5 shall be
subject to the dispute resolution processes set forth in Section 18.3, and
termination shall not be effective until such dispute resolution process is
completed.
SECTION 13 - FUNDS TRANSFER, NOTICES AND OTHER COMMUNICATIONS
13.1 Any notice or other communication required or permitted to be given to a
Party pursuant to this Agreement shall be sent to such Party by facsimile
or by registered airmail, postage prepaid, addressed to it at its address
set forth below, or to such other address as it may designate by written
notice given to the other Parties. All payments due hereunder to IBM shall
be made to IBM by telegraphic transfer or other equally expeditious means
and IBM shall notify Chartered, Samsung, and IFX within thirty (30) days of
the date of this Agreement of the account and other details needed by
Chartered, Samsung, and IFX in order to effect such transfer. Any such
payment, invoice, notice or other communication shall be effective on the
date of receipt. The addresses are as follows:
13.1.1 In the case of IBM,
for mailing notices and other communications to IBM:
IBM Corporation
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Xxxxxxx Xxxxxxxx, VP Technology and Chief
Technologist, TG
with a copy to:
IBM Corporation
Drop 92B
0000 Xxxxx 00
Xxxxxxxx Xxxxxxxx, XX 00000
Fax: (000) 000-0000
Attention: Associate General Counsel, Microelectronics
for quarterly royalty reports:
Director of Licensing
IBM Corporation
Xxxxx Xxxxxx Xxxxx, XX-XX000
Xxxxxx, XX 00000-0000
for electronic funds transfer to IBM:
IBM, Director of Licensing
PNC BANK
Page 39
000 Xxxxx Xxxxxx
Xxxxxxxxxx, XX 00000
Xxxxxx Xxxxxx of America
Account *****
ABA Routing No. *****
Include the following information in the wire detail:
Company Name
Reason for Payment
Agreement Reference No. L024359
13.1.2 In the case of Chartered,
for mailing notices and other communications to Chartered:
Legal Department
Chartered Semiconductor Manufacturing Ltd.
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
Attn: General Counsel
for quarterly royalty reports:
Chartered Semiconductor Manufacturing Ltd.
00 Xxxxxxxxx Xxxxxxxxxx Xxxx X
Xxxxxx 0
Xxxxxxxxx 000000
Attn: Chief Financial Officer
for electronic funds transfer:
13.1.3 In the case of IFX,
for mailing notices and other communications to IFX:
Legal Department
Infineon Technologies AG
XX Xxx 00 00 00
00000 Xxxxxx, Xxxxxxx
Email: xxxxxxxx.xxxxx@xxxxxxxx.xxx
Tel: +49 0 89 234 0
Fax: x00 0 00 000-00 93
Page 40
Attn: General Counsel
13.1.4 In the case of Samsung,
for mailing notices and other communications to Samsung:
Technology Development
San #24 Nongseo-Ri, Giheung-Eup
Yongin-City, Gyeonggi-Do, The Republic of Korea 449-711
Tel : 00-0-000-0000
Fax: 00-00-000-0000
Attn: Xxx Xxxxx Pyuk, Senior Vice President
with a copy to:
Legal Department
Samsung Electronics Co., Ltd.
Samsung Main Xxxxxxxx
000, 0-Xx, Xxxxxxxx-Xx, Xxxxx-Xx
Xxxxx, Xxx Xxxxxxxx of Korea 100-742
SECTION 14 - INTENTIONALLY LEFT BLANK
SECTION 15 - FORCE MAJEURE
15.1 Any Party hereto shall be excused from the fulfilment of any Process
Development Project obligation or any other obligation set forth in this
Agreement under this Agreement for so long as such fulfilment is prevented
by any circumstances of force majeure such as but not limited to acts of
God, war, riot, strike, lockout, labor unrest, fire, flood, other natural
catastrophe, shortage of materials or transportation, national or local
government regulations (including, but not limited to, export regulations,
but only to the extent such export regulations do not allow for appropriate
export licenses or such export licenses are not granted despite the
affected Parties having exercised good faith efforts to obtain such export
licenses), or any other circumstance of like kind outside its reasonable
control, provided that the Party seeking to be excused shall make every
reasonable effort to minimize the prevention of such fulfilment; and
provided further that, if such force majeure continues to prevent or delay
performance of such Party for more than one-hundred eighty (180) days and
has a material impact on the Process Development Projects, the other Party
or Parties may terminate this Agreement as to the affected Party, effective
immediately upon written notice to such Party. Such termination shall not
constitute a termination for breach pursuant to Section 12.4; Section 12.2
shall apply to any such termination.
15.2 Upon the ending of such circumstance without the other Party or Parties
having terminated this Agreement with respect to the affected Party as
provided in Section 15.1 above, the Party excused shall promptly resume the
fulfilment of obligations affected.
Page 41
SECTION 16 - TAXES
Each Party shall bear and pay all taxes (including, without limitation, sales
and value added taxes but excluding income tax as specified below) applicable to
such Party, including those imposed by its own national government, or any
political subdivision thereof, as the result of the existence of this Agreement
or the exercise of rights hereunder. If a Party ("payer") is required by its
national government to withhold or deduct income taxes on behalf of the other
Party or Parties in respect of the payments made by it to the other Party or
Parties, payer may deduct such income tax from the payment due and furnish the
other Party or Parties within a reasonable time after the payer's receipt of tax
certificates from the applicable government entity, such original certificates
and other evidence of deduction and payment as the other Party or Parties may
properly require. In addition, each Party can independently pursue any
applicable tax credit for its share of expenses related to the Process
Development Projects. Chartered will provide reasonable assistance to IBM to
seek an exemption of withholding taxes under the appropriate section(s) of the
Income Tax Act of Singapore or the Economic Expansion Incentive (Relief from
Income Tax) Act and if Chartered is the appropriate Party to do so, Chartered
will apply in a timely manner for such an exemption. IFX will provide reasonable
assistance to IBM to seek an exemption of withholding taxes under the
appropriate provision(s) of the Income Tax Act of Germany, and if IFX is the
appropriate Party to do so, IFX will apply in a timely manner for such
exemption. Samsung will provide reasonable assistance to IBM to seek an
exemption of withholding taxes under the appropriate provision(s) of the Income
Tax Act of the Republic or Korea, and if Samsung is the appropriate Party to do
so, Samsung will apply in a timely manner for such exemption. IBM shall provide
assistance, as required, to Chartered, Samsung, and/or IFX, as the case may be,
to complete the necessary forms required for the application for such exemption
of withholding tax.
SECTION 17 - LIMITATION OF LIABILITY
17.1 In no event shall any Party (or its Subsidiaries) be liable to the other
Parties for incidental damages, special damages, punitive damages, lost
profits, lost savings or any other such damages, including consequential
damages, regardless of whether the claim is for breach of contract, breach
of warranty, tort (including negligence), failure of a remedy to accomplish
its purpose or otherwise, even if such Party (or any Subsidiary) has been
advised of the possibility of such damages.
17.2 In no event shall any Party's (or its respective Subsidiaries') aggregate
liability to the other Parties (for direct damages or otherwise) in
connection with any claim or claims relating to or arising under this
Agreement exceed the amount of *****, regardless of the form of action.
This limitation will not apply to any claim for payment of a sum or sums
properly due under this Agreement, for which the maximum amount of
liability shall not exceed the total amount of payments set forth in
Section 5.1 plus interest as set forth in Section 5.2. In addition, neither
dollar limitation shall apply to (i) breach of the confidentiality
obligations set forth in Section 7; or (ii) death, personal injury or
physical damage to real property or tangible personal property resulting
from a Party's own gross negligence, including that of its employees,
agents or subcontractors.
Page 42
17.3 Nothing contained herein shall limit any Party's right to seek a
preliminary injunction, temporary restraining order or any other equitable
relief in order to avoid material harm to its property, rights or other
interests.
17.4 In no event shall any Party (or its respective Subsidiaries) be liable for
any damages claimed by the other Party or Parties based on any Third Party
claim, except as specifically set forth in Section 17.2 (ii) above.
SECTION 18 - GENERAL
18.1 Nothing contained in this Agreement shall be construed as conferring any
right to use in advertising, publicity or other promotional activities any
name, trade name, trademark or other designation of any Party hereto
(including any contraction, abbreviation or simulation of any of the
foregoing); and each Party hereto agrees not to disclose to other than its
Subsidiaries the terms and conditions of this Agreement without the express
written consent of the other Parties, except as may be required by law or
government rule or regulation, having provided the other Party or Parties
with prior written notice of such disclosure and having made a reasonable
effort to limit such disclosure to the minimum required and obtaining a
protective order requiring that the information and/or documents so
disclosed be used only for the purposes for which such disclosure is
required. Notwithstanding the foregoing, 1) the Parties shall be permitted
to disclose a summary of pertinent Sections of this Agreement that are
reasonably necessary for disclosing and/or licensing under this Agreement,
and 2) each Party shall be permitted to disclose pertinent Sections of this
Agreement, in confidence (consistent with treatment of such Party's own
comparable confidential information), to such Party's accountants, banks
and financing sources and other similar business advisors and to
appropriate regulatory authorities for purposes of seeking tax exemptions
and applying for research grants.
18.2 This Agreement shall be construed, and the legal relations created herein
between the Parties shall be determined exclusively, in accordance with the
laws of the United States of America and, specifically, the State of New
York, without regard to conflicts of law, as if said Agreement were
executed in, and fully performed within, the State of New York. Any
proceeding to enforce, or to resolve disputes relating to, this Agreement
shall be brought exclusively before a court of competent jurisdiction in
the State of New York, including a Federal District Court, sitting within
such State; or in the Republic of Singapore; or in the Federal Republic of
Germany; or in the Republic of Korea. The Parties hereby irrevocably
consent to jurisdiction in such court, and hereby expressly waive any right
to a jury trial and agree that any proceeding hereunder shall be tried by a
judge without a jury. In any proceedings no Party shall assert that such
court lacks jurisdiction over it or the subject matter of the proceeding.
18.3 In the event of any dispute under this Agreement, and as a condition
precedent to any Party filing suit, instituting a proceeding or seeking
other judicial or governmental resolution in connection therewith, the
Parties will attempt to resolve such dispute by negotiation in accordance
with the following dispute resolution process, excepting only that a Party
may institute a proceeding seeking a preliminary injunction, a temporary
restraining order, or other equitable relief, if necessary in the opinion
of that Party to
Page 43
avoid material harm to its property, rights or other interests, before
commencing or at any time during the course of the dispute procedure in
this Section 18.3.
18.3.1 Such negotiations shall first involve the individuals in the
Management Committee. These individuals will exercise reasonable
efforts to resolve such dispute.
18.3.2 If such negotiations do not result within thirty (30) calendar days
of their receipt of a written referral to them in a resolution of
the dispute, the dispute will be referred in writing to the
following senior executives (with a copy to the persons named in
Section 13.1 above), which senior executives shall discuss and meet
in person, if necessary, in order to attempt to negotiate a
resolution to the dispute:
For Chartered: Chia Song Hwee
President & CEO
For IBM: Dr Xxxx Xxxxx, III
Senior Vice President and Group Executive,
Technology Systems and Technology Group
For IFX: Xx. Xxxxxxx xxx Xxxxxxxxx
Chief Operating Officer, Infineon Technologies AG
For Samsung: Xx.Xxxxx-Xxx Xxxxx
President, Semiconductor Business
Each Party may appoint a successor to such senior executive for
purposes of this Section 18.3 by giving written notice to the other
Parties.
18.3.3 Except as set forth above, no Party shall file suit, institute a
proceeding or seek other judicial or governmental resolution of the
dispute until at least sixty (60) calendar days after the first
meeting between the senior executives.
18.4 In the event that any litigation occurs between the Parties pertaining to
this Agreement and any technical issues arise in the course thereof, the
Parties shall make good faith efforts to select one or more neutral
mutually acceptable technical experts with expertise in the pertinent
technical issues to assist the court in understanding and evaluating such
issues.
18.5 A Party shall not assign any of its rights or obligations under this
Agreement without prior written consent of the other Parties. Any attempted
such assignment without such permission shall be null and void. Except that
IBM may assign or transfer its rights to receive payment hereunder to any
party upon written notice to Chartered, Samsung and IFX, and any Party may
assign or transfer any of its rights and obligations to a Wholly Owned
Subsidiary upon written notice to the other Parties, provided that the
assigning or transferring Party agrees that such assignee or transferee
will remain (and it does remain) a Wholly Owned Subsidiary of such Party;
however, such Wholly Owned Subsidiary
Page 44
shall be capable of performing either directly or indirectly all the
obligations of the assigning Party set forth in Agreement and the
assigning Party shall guarantee the performance of such Wholly Owned
Subsidiary.
18.6 No actions, regardless of form, arising out of this Agreement, may be
brought by any Party more than two (2) years after the cause of action has
arisen.
18.7 Each Party shall be responsible for compliance with all applicable laws,
regulations and ordinances. In addition, none of the Parties nor any of
their agents or employees acting on behalf of said Party or Parties will
export or re-export any confidential information of the other Party or
Parties, or any process, product or service that is produced as a result
of the use of such confidential information, to any country specified in
the applicable laws and regulations of Singapore or the United States or
Germany or the Republic of Korea as a prohibited destination, without
first obtaining the relevant government's approval, if required. Upon
request, each Party will advise the other Parties of the countries then
specified as prohibited destinations.
18.8 All monetary amounts specified herein are in lawful money of the United
States of America.
18.9 Neither this Agreement nor any activities hereunder shall impair any right
of any Party to design, develop, manufacture, sell, market, service, or
otherwise deal in, directly or indirectly, manufacturing processes,
products or services developed by such Party independent of this
Agreement, including those which are competitive with those offered by any
Party. Subject to the confidentiality and license limitations set forth in
this Agreement, each Party may pursue activities independently with any
Third Party even if similar to the activities under this Agreement.
18.10 Each Party is an independent contractor and not an agent, employee or
fiduciary of the other Parties for any purpose whatsoever. No Party shall
make any warranties or representations on behalf of any other Party, nor
shall it assume or create any other obligations on any other's behalf.
Nothing herein shall be taken to constitute a partnership or joint venture
between the Parties hereto.
18.11 The Parties agree to explore the possibility of issuing a press release
describing the relationship established hereby. The text of such press
release will be mutually agreed to by the Parties, which agreement will
not be unreasonably withheld. Any other press releases and other like
publicity or advertising relating to this Agreement and/or which mentions
any other Party by name shall be agreed upon by the Parties in writing
prior to any release, such agreement not to be unreasonably withheld.
18.12 If any section or subsection of this Agreement is found by competent
judicial authority to be invalid, illegal or unenforceable in any respect,
the validity, legality and enforceability of any such section or
subsection in every other respect and the remainder of the terms of this
Agreement shall continue in effect so long as the amended Agreement still
expresses the intent of the Parties. If the intent of the Parties cannot
be preserved, the Agreement shall be renegotiated with the Parties
substituting for any invalid or unenforceable
Page 45
provision a valid or enforceable provision that achieves to the greatest
extent possible the same effect as would have been achieved by the invalid
or unenforceable provision.
18.13 Any waiver by any Party of any breach of, or failure to enforce at any
time, any of the provisions of any of this Agreement shall not be
construed as or constitute a continuing waiver of such provision, or a
waiver of any other provision of this Agreement, nor shall it in any way
affect the validity of any of this Agreement or any part thereof, or the
right of any Party thereafter to enforce each and every provision of any
of this Agreement.
18.14 This Agreement will not be binding upon the Parties until it has been
signed herein below by or on behalf of each Party, in which event it shall
be effective as of the Effective Date. This Agreement and the respective
bilateral agreements constitute the entire agreement between the Parties
with respect to the subject matter hereof and shall supersede all previous
communications, representations, understandings and agreements, whether
oral or written, made in the course of discussions and/or negotiations
between the Parties or any officer or representative thereof with respect
to the subject matter of this Agreement. No amendment or modification of
this Agreement shall be valid or binding upon the Parties unless made in
writing and signed on behalf of each of such Parties by their respective
representatives thereunto duly authorized. The requirement of written form
may only be waived in writing.
18.15 This Agreement may be executed in counterparts, each of which shall be
deemed an original, but each of which together shall constitute one and
the same agreement. Any signed copy of this Agreement made by reliable
means (e.g., photocopy or facsimile) is considered an original.
REMAINDER OF PAGE INTENTIONALLY LEFT BLANK
Page 46
18.16 The terms and conditions of this Agreement are intended solely for the
benefit of each Party and their permitted successors and/or assigns, and
it is not the intention of the Parties to confer third party beneficiary
rights upon any other person or entity.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed
by their duly authorized representatives as of the Effective Date.
CHARTERED SEMICONDUCTOR MANUFACTURING INTERNATIONAL BUSINESS MACHINES
LIMITED CORPORATION
By : /s/ Chia Song Hwee By : /s/ Dr. Xxxx Xxxxx, III
----------------------------- -------------------------------
Name : Chia Song Hwee Name : Dr. Xxxx Xxxxx, III
Title : President and CEO Title : Senior Vice President and Group
Executive, Technology
Systems and Technology Group
Date : Date :
----------------------------- -------------------------------
INFINEON TECHNOLOGIES AG SAMSUNG ELECTRONICS CO., LTD.
By : /s/ Xx. Xxxxx Xxxxx By : /s/ Xx. Xxxxx-Xxx Xxxxx
----------------------------- -------------------------------
Name : Xx. Xxxxx Xxxxx Name : Xx. Xxxxx-Xxx Xxxxx
Title : Senior Vice President Title : President, Semiconductor
Business
Date : Date :
----------------------------- -------------------------------
And by: /s/ Xx. Xxxxxxx xxx Xxxxxxxxx
-----------------------------
Name : Xx. Xxxxxxx xxx Xxxxxxxxx
Title : Executive Vice President,
Chief Operating Officer
Date :
-----------------------------
Page 47
EXHIBIT A: TECHNICAL OBJECTIVES
EXHIBIT B: PROJECTED SCHEDULE
EXHIBIT C: STAFFING
EXHIBIT D: RESPONSIBILITIES OF MANAGEMENT COMMITTEE
EXHIBIT E: PROJECT LEADERS RESPONSIBILITIES
EXHIBIT F: VISITATION GUIDELINES
EXHIBIT G: DOCUMENTATION DELIVERABLES
Page 48
EXHIBIT A
TECHNICAL OBJECTIVES
*****
Page 49
EXHIBIT B
PROJECTED SCHEDULE
(B1) Project schedule in IBM Fishkill
*****
Page 50
EXHIBIT C
STAFFING
*****
Page 51
EXHIBIT D
RESPONSIBILITIES OF THE MANAGEMENT COMMITTEE
- Approve changes in strategic technical objectives as set forth in Exhibit
A*
- Approve changes of schedules of the Projects set forth in Exhibit B*
- Establish a regular review process on no more than a quarterly basis with
business executives of each of the Parties of at least the level of vice
president or other comparable level.
- Approve external communications about the goals of the Process Development
Projects and external publications*.
- Resolve such other items as the Management Committee deems appropriate or
as indicated elsewhere in the Agreement as requiring the agreement of the
Management Committee.
* ITEMS MARKED REQUIRE UNANIMOUS APPROVAL OF THE MANAGEMENT COMMITTEE
All other responsibilities, including day-to-day management responsibility for
the results to be achieved under the Agreement, shall reside with the IBM
Project Leader with the help of the Samsung, Chartered and Infineon Co- Project
Leaders.
Page 52
EXHIBIT E
PROJECT LEADERS' RESPONSIBILITIES
(E1) RESPONSIBILITIES OF THE IBM PROJECT LEADER
Project organization and coordination
- Responsible for implementation of directives from the Management
Committee for the Process Development Projects
- Responsible for identification and presentation to the Management
Committee of those items which need Management Committee approval
- Responsible for Process Development Project reporting at Management
Committee reviews
- Responsible for quarterly reports (technology status, milestones).
- Responsible for allocation of Process Development Project resources
- Responsible for review and approval of technical publications
- Responsible for determining the organizational structure of the
Process Development Project Team and appointing key technical leaders
and project managers to execute Process Development Projects including
approval of Chartered 's, Samsung's, and Infineon's staffing
allocation.
- Responsible for managing the IBM infrastructure to support the Process
Development Project Activities
- Responsible for Process Development Project schedule planning
- Responsible for management of IBM Representatives
- Responsible for completion of Documentation for each of the Process
Development Projects
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EXHIBIT E
(E2) RESPONSIBILITIES OF THE SAMSUNG, CHARTERED AND INFINEON CO-PROJECT LEADERS
- Responsible for implementation of directives from the Management
Committee for the Process Development Projects
- Responsible for identification and presentation to Management
Committee of those items which need Management Committee approval
- Responsible for Process Development Project reporting at Management
Committee reviews
- Responsible for quarterly reports (technology status, milestones)
- Responsible for review and approval of technical publications
- Responsible for management of Samsung, Chartered and Infineon's
Representatives respectively.
- - Responsible for completion of Documentation for each Process
Development Project
- Responsible for determining the organizational structure of the
Process Development Project Team and appointing key technical leaders
and project managers to execute Process Development Projects for
Samsung, Chartered and Infineon respectively subject to approval by
the IBM Project Leader
- Responsible for Process Development Project schedule planning
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- EXHIBIT F
VISITATION GUIDELINES
(F1) IBM'S VISITATION GUIDELINES
1.0 IBM shall issue security badges to visitors. Security badges must be
returned by visitors at the end of each assignment. Security badges must be
visibly displayed at all times by visitors while on IBM premises. If the
security badge is lost or stolen, the IBM Technical Coordinator shall be
immediately advised. Security badges shall not be loaned or interchanged.
2.0 Visitors shall only enter those buildings, departments, or areas which are
specifically designated by the IBM Technical Coordinator and for which
entry is required under this Agreement.
3.0 Visitors shall comply with all log-in/log-out requirements when entering or
leaving IBM buildings and/or designated work areas.
4.0 Visitors shall comply with all security and safety guidelines which are
posted on IBM premises and/or are otherwise specified by IBM.
5.0 IBM copying equipment and/or other IBM equipment (such as data processing
equipment and word processing equipment) shall not be used by visitors
except with prior approval of the IBM Technical Coordinator.
6.0 Visitors shall not disturb materials lying on IBM desks, mounted on easels
or displayed on chalkboards.
7.0 Visitors shall promptly leave buildings and department areas after
completing work assignments.
8.0 Visitors shall not leave IBM external doors propped open. No IBM materials
shall be removed from buildings without prior written approval.
9.0 Alcoholic beverages, illegal drugs, guns and ammunition, cameras, and
recording devices are not permitted on IBM premises.
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(F2) CHARTERED'S VISITATION GUIDELINES
1.0 Chartered shall issue security badges to visitors. All visitors shall
display their security pass at chest level on entering and while remaining
in the premises.
2.0 The security pass is not transferable. Any unauthorized possession, use,
retention, alteration, destruction or loan of pass to another person is
deemed to be a penal offence.
3.0 All assets brought into Chartered shall be declared with security using the
standard inward declaration form.
4.0 All assets to be brought out of Chartered must be accompanied by an
authorized gate pass form.
5.0 All items and vehicles entering or leaving Chartered are subjected to
checks by Security.
6.0 No photographic or video cameras are allowed within Chartered premises
unless authorized and with necessary clearance from the security
department.
7.0 All alcoholic beverages, narcotics, durians and smoking materials are not
allowed to be brought into Chartered premises.
8.0 Smoking is only allowed at the exterior designated smoking areas
9.0 Copying equipment or any data processing equipment / printing equipment
shall not be used by visitors without prior approval from Chartered's
Technical Coordinator.
10.0 Visitors shall not disturb material lying on Chartered employee desks,
mounted on easels or displayed on notice boards.
11.0 All visitors are to abide by Chartered's then-effective security
procedures, which will be provided to IBM, Samsung, and Infineon.
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(F3) INFINEON'S VISITATION GUIDELINES
TBD
(F4) SAMSUNG'S VISITATION GUIDELINES
TBD
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EXHIBIT G
DOCUMENTATION/DELIVERABLES FOR EACH TECHNOLOGY
*****
Additional requests for documentation or any modification to this Exhibit G
shall be by the mutual agreement of the Project Leaders, which agreement shall
not be unreasonably withheld. In addition, each Party may access information
available during the Process Development Projects and document such information
for the purpose of transferring such information to its own manufacturing
facilities. All such documentation shall be made available to all Parties. IT IS
THE GOAL OF THE PROJECT TO PROVIDE DOCUMENTATION IN ELECTRONIC FORM IN A PROJECT
DATA BASE THAT IS AVAILABLE TO EACH PARTY AND CAN BE REPLICATED TO EACH PARTY'S
SECURE SERVER.
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