Common use of Term and Termination; Survival Clause in Contracts

Term and Termination; Survival. 17.1 If duly signed by the Parties hereto this Agreement shall enter into force under the suspensive condition and on the date of the receipt (“Effective Date”) of any and all governmental approvals necessary for the performance of this Agreement and the Know How Transfer Agreement (“Government Approvals”). Either Party shall without undue delay and in writing inform the other Party of the receipt of any such approval issued by the competent authorities in such first Party’s country or for which such first Party has applied for, or, if it turns out that no approval is necessary, on such fact. The Governmental Approvals necessary to be issued by authorities in Germany and the United States of America as a precondition for the effectiveness of this Agreement, are export licenses for the transfer of technology of the relevant export control authorities. Infineon will apply for such export licenses immediately after the Parties have duly signed this Agreement and after receipt of any required so called “End Use Certificates” signed by SMIC or any other document relating to SMIC which is issued by SMIC or to be obtained by SMIC from authorities in SMIC’s country, and will use all commercially reasonable endeavours to obtain such licenses as soon as possible. If the Government Approvals are not obtained prior to January 31, 2003, the Parties shall discuss the postponement of Shipment Qualification of the first Contract Product from June 2003. 17.2 [Replaced in Addendum #5] 17.3 In case the period between the duly signing of this Agreement and the receipt of the necessary Governmental Approvals exceeds six (6) months, this Agreement shall be regarded as null and void, if a Party requests so in writing to the other Party after elapse of said six (6) months period. 17.4 This Agreement may be prematurely terminated by registered letter with immediate effect by a Party having such right as herein below provided, and notwithstanding any other rights such Party may have, upon the occurrence of one of the following events: 17.4.1 by either Party in the event that the other Party voluntarily files a petition in bankruptcy or has such a petition involuntarily filed against it (which petition is not discharged within sixty (60) days after filing), or is placed in an insolvency proceeding, or if an order is entered appointing a receiver or trustee or a levy or attachment is made against a substantial portion of its assets which order shall not be vacated within sixty (60) days from date of entry, or if any assignment for the benefit of its creditors is made; 17.4.2 by either Party in the event that the other Party has materially failed in the performance of any material contractual obligation under this Agreement or under the Know How Transfer Agreement, provided that (y) such default is not remedied to the first Party’s reasonable satisfaction within thirty (30) days after receipt of written notice by the other Party specifying the nature of such default and requiring remedy of the same or (z) a committee consisting of two members, one being the Chief Executive Officer of the Infineon Memory Products Group or his/her equivalent and the other being the Chief Executive Officer of SMIC or his/her equivalent, has failed to reach a resolution within such thirty (30) day period or such longer period as agreed to by the Parties, to such material breach which is satisfactory to each Party; 17.4.3 by Infineon in the event that a third party, which is a competitor of Infineon in the field of semiconductors controls directly or indirectly (i) twenty five percent (25%) if at such time SMIC is privately-held or (ii) fifty percent (50%) if at such time SMIC is publicly held, in both cases, of the voting shares in SMIC. SMIC shall without undue delay inform Infineon by registered letter on such acquisition. Within three (3) months after receipt of such registered letter, Infineon shall bindingly declare, whether it will exercise the right to terminate this Agreement or not. Failure to so exercise within such three-month period shall have this Agreement maintained in full force; 17.4.4 by either Party in the event that the litigation pending with Rambus referred to in Section 9.1 of the Know How Transfer Agreement, results in injunctive relief which either prevents Infineon from transferring or SMIC from manufacturing Wafers using the technology transferred by Infineon under the Know How Transfer Agreement (an “Injunction”). 17.5 Article 1 (Definitions), Article 10 (Warranties) solely until the expiration of the warranty period, Article 11 (Industrial and Intellectual Property Rights), Article 13 (Confidentiality) to the extent specified in Section 13.1, Article 16 (Remedies and Limitation of Liability), Article 18 (Arbitration, Governing Law), and Article 19 (Miscellaneous) shall survive termination of this Agreement regardless of the basis for such termination. Further, Infineon shall have the right to continue to conduct the audits pursuant to Section 7.2 for a period of two (2) years after termination of this Agreement. Any liability of SMIC discovered by any such post-termination audit shall not be affected by the termination of this Agreement.