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Exhibit 10.20
FOUNDRY AGREEMENT
THIS FOUNDRY AGREEMENT (this "Agreement"), dated as of November 1, 1997, (the
"Effective Date") is entered into by and among Amkor Technology, Inc. ("ATI") a
Delaware corporation with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, Amkor Electronics, Inc. a Pennsylvania corporation
("Amkor (Pa.)"), with a place of business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, C.I.L. Limited (Caymans) ("CIL"), a Cayman Islands
corporation with a place of business at CIBC Building, ▇▇▇▇▇▇ Street, Grand
Cayman, Cayman Islands, Anam Industrial Co., Ltd. ("AICL") a Korean corporation
with a place of business at 280-8 Sungsu 2-ga, Sungdong-ku, ▇▇▇▇▇ ▇▇▇-▇▇▇, ▇▇▇▇▇
and Anam USA, Inc. ("Anam USA") a Pennsylvania corporation with a place of
business at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ (each, a
"Party"; together, the "Parties").
W I T N E S S E T H:
WHEREAS, in connection with an initial public offering of the stock of
ATI (the "IPO"), Amkor (Pa.) will be merged into ATI;
WHEREAS, following the IPO, ATI will commence operations including
engaging in those operations previously engaged in by Amkor (Pa.);
WHEREAS, until the occurrence of the IPO, ATI will not assume the
responsibilities of Amkor (Pa.) under this Agreement;
WHEREAS, ATI is, or will become the parent corporation of, among other
legal entities, CIL;
WHEREAS, AICL, a publicly traded Korean company, is engaged in the
business, inter alia, of owning and operating a semiconductor foundry in Korea;
WHEREAS, Amkor (Pa.) and CIL are engaged in the business of providing
foundry services to third parties, which foundry services will be performed by
AICL;
WHEREAS, Anam USA is a wholly-owned subsidiary of AICL and is engaged
in (a) providing certain services to AICL, Amkor (Pa.) and CIL regarding the
obtaining and extending of credit to AICL, Amkor (Pa.) and CIL and (b) acting as
a trading company for the purpose of facilitating transactions between Amkor
(Pa.) and CIL, on the one hand, and AICL on the other;
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WHEREAS, the Parties wish to set forth the terms and conditions under
which AICL will manufacture semiconductor wafers and otherwise perform foundry
services as a subcontractor to Amkor (as defined below) and CIL;
WHEREAS, the Parties and their predecessor corporations have enjoyed a
well-established and synergistic business relationship whereby Amkor and CIL and
their respective affiliates have entered in numerous contracts with
semiconductor companies to provide semiconductor packaging and testing services
and have had some of such services performed by AICL;
WHEREAS, the Parties wish to establish a long-term arrangement among
them to provide Foundry Services (as such term is herein defined) to the
semiconductor industry in a manner similar to the manner the Parties operate
their packaging services operations;
WHEREAS, AICL and Amkor wish to coordinate their respective research
and development activities; and
WHEREAS, the Parties believe that such a long-term relationship, under
the terms and conditions set forth in this Agreement, is necessary to assure
their respective long-term profitability and growth, and is in their respective
best interest.
NOW, THEREFORE, in consideration of the foregoing and the mutual
covenants and promises contained herein, the Parties hereby agree as follows:
ARTICLE 1. CONSTRUCTION AND DEFINITIONS
SECTION 1.1. CONSTRUCTION. (a) All references in this Agreement to
"Articles," "Sections" and "Exhibits" refer to the articles, sections and
exhibits of this Agreement.
(b) The words "hereof," "herein" and "hereunder" and other
words of similar import refer to this Agreement as a whole and not to any
subdivision contained in this Agreement.
(c) The words "include" and "including" when used herein are
not exclusive and mean "include, without limitation" and "including, without
limitation," respectively.
SECTION 1.2. DEFINITIONS. As used herein:
(a) "Affiliate" of a Party means an entity that is controlled
by such Party or by an entity controlling such Party. For the purposes of the
foregoing, "control" means ownership, directly or indirectly, of at least 50% of
the voting stock of the controlled entity.
(b) "Amkor" means, prior to the IPO, Amkor (Pa.), and
following the IPO, ATI.
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(c) "Bankruptcy Event" means any of the following events or
circumstances with respect to a Party, such Party: (i) ceases conducting its
business in the normal course; (ii) becomes insolvent or becomes unable to meet
its obligations as they become due; (iii) makes a general assignment for the
benefit of its creditors; (iv) petitions, applies for, or suffers or permits
with or without its consent the appointment of a custodian, receiver, trustee in
bankruptcy or similar officer for all or any substantial part of its business or
assets; or (v) avails itself or becomes subject to any proceeding under the U.S.
Bankruptcy Code or any similar state, federal or foreign, including Korean,
statute relating to bankruptcy, insolvency, reorganization, receivership,
arrangement, adjustment of debts, dissolution or liquidation, which proceeding
is not dismissed within sixty (60) days of commencement thereof.
(d) "Change of Control" means, with respect to a Party: (A)
the direct or indirect acquisition of either (i) the majority of the voting
stock of such Party or (ii) all or substantially all of the assets of such
Party, by another entity in a single transaction or series of related
transactions; or (B) the merger of such Party with, or into, another entity. The
reincorporation of a Party shall not be considered a Change of Control.
(e) "Confidential Information" means any information: (i)
disclosed by one Party (the "Disclosing Party") to the other Party (the
"Receiving Party"), which, if in written, graphic, machine-readable or other
tangible form is marked as "Confidential" or "Proprietary", or which, if
disclosed orally or by demonstration, is identified at the time of initial
disclosure as confidential and such identification is reduced to writing and
delivered to the Receiving Party within thirty (30) days of such disclosure; or
(ii) which is otherwise deemed to be confidential by the terms of this
Agreement.
(f) "Customer" means a third party with whom Amkor, CIL and/or
AICL, as the case may be, enters into a contractual arrangement to provide
Foundry Services.
(g) "Customer Contract" means a contract (including a binding
purchase order) between Amkor or CIL, as the case may be, and a Customer to
provide Foundry Services to such Customer. Customer Contracts may include AICL
as a party.
(h) "Customer Payment" is the net amount payable by a Customer
to Amkor or CIL, as the case may be, for all services and deliverables under the
relevant Foundry Contract with respect to services performed, and wafers
produced, by AICL.
(i) "EDE System" means the electronic data exchange and
communications ("EDE") system to be established among the Parties and certain
Customers.
(j) "Foundry" means the semiconductor wafer foundry owned and
operated by AICL in Buchon, Korea and such other foundries as shall be owned and
operated by AICL during the Term.
(k) "Foundry Management System" means the computerized Foundry
operation and planning, management accounting, and accounting system, including
the EDE System, established by
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the Parties for the purposes of planning, managing and coordinating among them
the provision of Foundry Services and the operation the Foundry.
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(n) "Foundry Services" means the manufacturing and testing of
Products, including semiconductor wafers and die, and related services provided
to a Customer.
(o) "Indemnified Party" means a Party hereunder that receives
an indemnity from an Indemnifying Party hereunder in accordance with Article 13.
(p) "Indemnifying Party" means a Party hereunder providing an
indemnity to any other Party hereunder in accordance with Article 13.
(q) "Intellectual Property Rights" means all rights in, to, or
arising out of: (i) any U.S., international or foreign patent or any application
therefor and any and all reissues, divisions, continuations, renewals,
extensions and continuations-in-part thereof; (ii) inventions (whether
patentable or not in any country), invention disclosures, improvements, trade
secrets, proprietary information, know-how, technology and technical data; (iii)
copyrights, copyright registrations, mask works, mask work registrations, and
applications therefor in the U.S. or any foreign country, and all other rights
corresponding thereto throughout the world; and (iv) any other proprietary
rights in or to Technology anywhere in the world.
(r) "Products" means semiconductor wafers, die, and other
materials or deliverables manufactured by AICL for Customers in accordance with
this Agreement.
(s) "Technology" means all technology, however embodied,
including all know-how, show-how, techniques, processes, specifications,
recipes, mask works, design rules, trade secrets, inventions (whether or not
patented or patentable), algorithms, routines, software, net lists, files,
databases, works of authorship, devices and hardware.
(t) "Term" means the term of this Agreement defined in Section
15.1.
ARTICLE 2. MARKETING AND SALES
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SECTION 2.1. EXCLUSIVITY. AICL shall not provide Foundry Services
directly to any Customer. Amkor and CIL shall together have the exclusive right,
in all countries, to enter into contracts with Customers to provide AICL's
Foundry Services to such Customers.
SECTION 2.2. AMKOR AND CIL TERRITORIAL DIVISION. Amkor may provide
Foundry Services only to Customers that principally are located in the United
States. CIL may provide Foundry Services and Packaging Services to Customers
that principally are located outside of the United States.
SECTION 2.3. CUSTOMER CONTRACTS. (a) Amkor and CIL, either directly or
thorough their respective Affiliates, shall enter into Customer Contracts, if
any, in a form generally approved by AICL.
(b) Amkor and CIL shall use commercially reasonable efforts to
enter into Customer Contracts to the extent consistent with the respective
interests of the Parties and their obligations set forth in this Agreement.
(c) AICL shall perform the Foundry Services required under
each Customer Contract on the terms and conditions set forth in this Agreement
and such other terms and conditions as the Parties may deem necessary with
respect to such Customer Contract. AICL shall perform all such Foundry Services
in a manner that satisfies Amkor's and CIL's respective obligations pursuant to
such Customer Contracts.
(d) AICL shall act as an independent subcontractor to perform
Foundry Services for Amkor or CIL, as the case may be.
(e) Neither Amkor nor CIL shall have any authority to bind
AICL to any contract with a Customer.
(f) Upon execution of each Customer Contract, Amkor and CIL
shall provide to AICL a copy of such Customer Contract.
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ARTICLE 3. OPERATION OF FOUNDRY BUSINESS
SECTION 3.1. AICL'S GENERAL RESPONSIBILITIES WITH RESPECT TO FOUNDRY
SERVICES. AICL shall:
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(a) participate with Amkor and CIL in compiling an annual
operational plan based on annual demand as forecasted by Amkor and CIL in
accordance with a worldwide management accounting basis to be prescribed by
Amkor;
(b) obtain, install and qualify required Foundry capacity
commensurate with demand as forecasted in the operational plan or such other
level of capacity as is mutually agreed among Amkor, CIL and AICL;
(c) purchase Customer tooling for wafer fabrication and wafer
testing, including photolithography masks and test fixtures;
(d) maintain a coordinated electronic tracking system able to
identify the status of Customer Products (including masks, tooling, wafers and
die and other materials) at any time; and
SECTION 3.2. AMKOR'S AND CIL'S GENERAL OBLIGATIONS. Amkor and CIL shall
use commercially reasonable efforts to:
(a) actively and diligently market Foundry Services to
potential and existing Customers;
(b) provide Customer Forecasts (as defined below) to permit
AICL to efficiently plan its capacity requirements; and
(c) where required by a Customer Contract, cooperate with AICL
to arrange for the supply to AICL of all photolithography masks and related
materials to be used in the wafer fabrication process.
ARTICLE 4. FOUNDRY PRICING
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ARTICLE 5. FORECASTS AND ORDER COORDINATION
SECTION 5.1. FOUNDRY MANAGEMENT SYSTEMS. (a) Amkor, CIL and AICL shall
cooperate to acquire, install and operate a computerized Foundry Management
System which, among other things, will facilitate:
(i) EDE (as set forth below) between the Parties and
Customers;
(ii) Customer order processing;
(iii) Supply chain optimization and decision support;
(iv) Foundry capacity forecasting;
(v) Foundry utilization monitoring and optimization; and
(vi) Management accounting.
(b) Amkor shall be responsible for engaging third-party
consultants for the purpose of installing the Foundry Management System.
(c) Amkor shall be responsible for acquiring a license from i2
Technologies (or other vendor) and such other software vendors as may be chosen
by Amkor for software that will perform the features of the Foundry Management
System and such other functions as the Parties may deem desirable.
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(e) No Party may implement any change or upgrade to the
Foundry Management System that potentially could have a material detrimental
impact on any other Party or its business without the consent of each such
Party.
SECTION 5.2. ELECTRONIC DATA EXCHANGE. (a) For purposes of satisfying
Customer requirements and optimizing the flow of business communications among
Amkor, CIL, AICL and Customers, Amkor and AICL shall establish, as part of the
Foundry Management System or otherwise, an EDE System.
(b) Such EDE System shall include an electronic mail system, a
communications network, a data exchange network, and electronic document
interchange systems.
(c) AICL shall provide to Amkor and CIL, through such EDE
System or otherwise, the manufacturing information and reports needed to enable
Amkor and CIL to satisfy their respective obligations pursuant to their
respective Customer Contracts on a timely basis and to plan their respective
business operations.
(d) Without limiting the foregoing, AICL shall provide Amkor
and CIL the following information on a regular basis and also on an as requested
basis:
(i) inventory levels including wafers and/or die and
work-in-process and rejects;
(ii) production schedule status and shipment dates;
(iii) engineering and quality data for yield loss analysis;
(iv) Foundry loading levels; and
(v) cycle time data.
SECTION 5.3. CUSTOMER FORECASTS. Amkor and CIL shall use commercially
reasonable efforts to obtain each month from each of their respective Customers
a six (6)-month rolling forecast of such Customer's requirements, by work week,
for Foundry Services ("Customer Forecasts"). Amkor and CIL shall provide such
Customer Forecasts to AICL. AICL shall use such Customer Forecasts only as a
guide to anticipated requirements, and such forecasts shall not constitute a
commitment by either (i) AICL to Amkor or CIL or (ii) by Amkor or CIL to AICL.
SECTION 5.4. ORDER COORDINATION. Prior to entering into a Customer
Contract, or otherwise agreeing to provide Foundry Services, Amkor and CIL shall
consult with AICL for the purposes of
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determining, or shall otherwise determine, that AICL has the Foundry capacity to
provide such Foundry Services. In furtherance of the foregoing:
(i) upon Amkor's or CIL's request, AICL shall
provide a response, in writing or through
the EDE System to be developed hereunder, as
to whether, and in what time-frame, AICL can
provide the specified Foundry Services;
(ii) upon receipt of written wafer start releases
from Amkor or CIL, AICL shall provide
accurate delivery dates for completed
associated wafers and/or die; and
(iii) AICL shall schedule wafer starts to conform
to the cycle time requirements of the
Customers.
SECTION 5.5. ALLOCATION. At all times when the demand of all Customers
exceeds AICL's available Foundry capacity, subject to any preexisting agreements
of AICL, Amkor or CIL with third parties, Amkor and CIL, at their sole
discretion, shall have the right to allocate AICL's Foundry capacity among their
Customers.
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SECTION 5.7. HANDLING OF CUSTOMER MATERIALS. Unless a particular
Customer Contract provides otherwise, to the extent, if at all, that the
relevant Customer provides any masks, tapes, wafers, tooling or other materials
directly or through Amkor or CIL to AICL, such materials shall remain the
property of the Customer. AICL shall be responsible for secured storage handling
and accounting for such Customer materials in accordance with the terms of the
relevant Customer Contract. AICL shall keep confidential all Customer materials
to the extent set forth in the relevant Customer Contract or otherwise agreed
between the Customer and Amkor or CIL, as the case may be.
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ARTICLE 6. SHIPMENTS, PAYMENTS , ETC.
SECTION 6.1. CUSTOMER SHIPMENTS. (a) Amkor and CIL shall be responsible
for ensuring the delivery to Customers of wafers and other products manufactured
by AICL; provided, however, that AICL shall assume such obligation upon Amkor's
and CIL's request.
(b) AICL shall ship all such products in secure containers with labels
identifying, as required, any Customer-specific product numbering or lot number.
Each shipment shall also contain the agreed-upon processing documentation such
as commercial invoices or bills of lading.
SECTION 6.2. STORAGE. AICL shall be responsible for the safe storage
and handling of Customer products in AICL's possession. The liability of AICL
with regard to any damage to or loss of such Products shall be determined in
accordance with the applicable Customer Contract, and, in accordance with
Section 13.3, AICL shall indemnify Amkor and CIL to the extent of their
liability under such Customer Contract.
ARTICLE 7. RECORDS, ETC.
SECTION 7.1. RECORDS. (a) Each Party shall timely create and keep
complete and accurate books and records ("Records") regarding its operations
hereunder, including any records or materials that relate to or form the basis
for any payment or other obligation of such Party to any other Party hereunder.
(b) Each Party shall maintain its Records for at least three
(3) years from the date such records were created.
(c) Each Party shall make available, at no cost, to each other
Party and its authorized representatives (the "Requesting Party"), copies of, or
access to, such Records as may be relevant under this Agreement to the
Requesting Party and as the Requesting Party may reasonably request.
SECTION 7.2. ACCESS. (a) Amkor, CIL and AICL shall each allow free
access to its respective premises by employees of any of them.
(b) Without limiting the foregoing, AICL shall make available
office space and resources, including access to its Foundry Management System,
to Amkor and CIL employees for the purpose of coordinating the operations of the
Parties hereunder.
(c) Each Party shall be responsible for the conduct of its
employees while they are on the premises of another Party and, during such time,
such employees shall abide by all rules and regulations of the Party on whose
premises they are.
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SECTION 7.3. AUDIT. (a) Each Party (the "Audited Party") shall, during
the Term and for three (3) years thereafter, at its sole cost and expense
(except as provided below), provide reasonable assistance to any other Party
(the "Auditing Party"), including providing access to the Audited Party's
facilities and Records, to enable the Auditing Party and third-party auditors
and examiners selected by the Auditing Party to conduct audits and examinations
of the Records and operations of the Audited Party relating to this Agreement.
(b) An Auditing Party shall provide the Audited Party with at least ten
(10) business days' notice prior to conducting any audit hereunder. Each such
audit shall be conducted at reasonable hours and in a manner that does not
materially interfere with the Audited Party's operations. Each Party may audit
each other Party as described herein not more than two (2) times each calendar
year, unless otherwise required by law or regulation.
ARTICLE 8. CONFIDENTIAL INFORMATION
SECTION 8.1. CONFIDENTIAL INFORMATION EXCLUSIONS. Notwithstanding the
provisions of Section 1.2(d), Confidential Information shall exclude information
that the Receiving Party can demonstrate: (i) was independently developed by the
Receiving Party without any use of the Disclosing Party's Confidential
Information or by the Receiving Party's employees or other agents (or
independent contractors hired by the Receiving Party) who have not been exposed
to the Disclosing Party's Confidential Information; (ii) becomes known to the
Receiving Party, without restriction, from a source other than the Disclosing
Party without breach of this Agreement and that had a right to disclose it;
(iii) was in the public domain at the time it was disclosed or becomes in the
public domain through no act or omission of the Receiving Party; or (iv) was
rightfully known to the Receiving Party, without restriction, at the time of
disclosure.
SECTION 8.2. COMPELLED DISCLOSURE. In the event that a Receiving Party
discloses Confidential Information of a Disclosing Party pursuant to the order
or requirement of a court, administrative agency, or other governmental body;
such Receiving Party shall provide prompt notice thereof to such Disclosing
Party and shall use its best efforts to obtain a protective order or otherwise
prevent public disclosure of such information.
SECTION 8.3. CONFIDENTIALITY OBLIGATION. The Receiving Party shall
treat as confidential all of the Disclosing Party's Confidential Information and
shall not use such Confidential Information except as expressly permitted under
this Agreement. Without limiting the foregoing, the Receiving Party shall use at
least the same degree of care which it uses to prevent the disclosure of its own
confidential information of like importance, but in no event with less than
reasonable care, to prevent the disclosure of the Disclosing Party's
Confidential Information. To the extent consistent with the foregoing, a
Receiving Party may use any knowledge, confidential information, trade secrets
or proprietary information constituting Confidential Information of a Disclosing
Party that is retained in
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the memory of such Receiving Party's employees or that constitutes any such
employee's general knowledge or skill, even if acquired in connection with this
Agreement, for any purpose whatsoever.
SECTION 8.4. REMEDIES. Unauthorized use by a Party of another Party's
Confidential Information will diminish the value of such information. Therefore,
if a Party breaches any of its obligations with respect to confidentiality or
use of Confidential Information hereunder, the relevant Disclosing Party shall
be entitled to seek equitable relief to protect its interest therein, including
but not limited to injunctive relief, as well as money damages.
SECTION 8.5. NO CONFIDENTIAL INFORMATION OF OTHER PARTIES. Each Party
represents and warrants that it has not and shall not use in the course of its
performance hereunder, and shall not disclose to any other Party, any
confidential information of any third party, unless such Party expressly is
authorized by such third party to do so.
ARTICLE 9. ANAM USA'S RESPONSIBILITIES
SECTION 9.1. CREDIT FUNCTIONS. Anam USA shall use its best efforts to
obtain lines of credit at lowest commercially available rates of interest to
permit letters of credit to be opened, with AICL as beneficiary, for payment for
AICL's performance of Foundry Services.
ARTICLE 10. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSES
SECTION 10.1. INTELLECTUAL PROPERTY OWNERSHIP. (a) Except as set forth
herein, this Agreement shall not affect a Party's Intellectual Property Rights
existing prior to the Effective Date.
(b) Each Party shall own all Intellectual Property Rights in
Technology created or invented by such Party's employees, as determined in
accordance with principles of United States law.
(c) Any Technology created or invented by the employees of
more than one Party, and all Intellectual Property Rights therein, will be
jointly owned by the Parties that are the employers of such employees, as
determined in accordance with principles of United States law. Such joint
ownership will be without the duty to account. Such Parties shall cooperate in
the enforcement of such jointly-owned Intellectual Property Rights against
third-party infringers.
SECTION 10.2. LICENSES. (a) Amkor and CIL hereby grant to AICL and its
Affiliates a non-exclusive, non-sublicensable, perpetual, worldwide,
irrevocable license under all Intellectual Property Rights that Amkor or CIL now
or during the Term may hold or acquire, and which they are free to license to
third parties without payment of any kind, to (i) provide Foundry Services, (ii)
manufacture, use, sell and import Products, and (iii) otherwise operate the
Foundry and perform AICL's related activities. Amkor and CIL shall disclose
promptly to AICL any Technology to which AICL reasonably
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would desire access in connection with the performance of its obligations under
this Agreement, the provision of Foundry Services, or the operation of its
Foundry business.
(b) AICL, on behalf of itself and its Affiliates, hereby
grants to Amkor, CIL and their Affiliates a non-exclusive, fully sublicensable,
perpetual, worldwide, irrevocable, license under all Intellectual Property
Rights that AICL or its Affiliates now or during the Term may hold or acquire,
and which they are free to license to third parties without payment of any kind,
to (i) provide Foundry Services, (ii) have manufactured, use, sell and import
Products, and (iii) otherwise conduct activities related to the Foundry
Services. AICL shall disclose promptly to Amkor and CIL any Technology to which
Amkor and CIL would reasonably desire access in order to perform their
obligations under the Agreement or to otherwise operate their Foundry Service
businesses.
SECTION 10.3. INTELLECTUAL PROPERTY PROTECTION. (a) The Parties shall
cooperate to obtain patents, copyright and mask work registrations, and other
intellectual property protection with respect to any Technology developed by any
of them related to Foundry Services or resulting from any joint development
hereunder. In the case of jointly-owned Intellectual Property Rights, the
Parties shall equitably allocate the costs of obtaining patent, copyright, mask
work and other protection for such Intellectual Property Rights among
themselves.
(b) Notwithstanding the foregoing, each Party shall have the
right to file patent applications or copyright or mask work registrations on any
inventions made by, or works authored by, its employees. Any patents or
registrations issuing from such applications shall be exclusively owned by the
Party that made such application.
SECTION 10.4. THIRD PARTY LICENSES. In the event that a Party intends
to license Technology from a third party, it will endeavor to obtain a license
on equal terms for any of the other Parties to the extent that such other
Parties would benefit from such a license.
SECTION 10.5. ENFORCEMENT OF INTELLECTUAL PROPERTY. (a) If a Party
becomes aware that a third party is infringing such Party's or any other Party's
Intellectual Property Rights, such Party shall promptly notify the relevant
other Parties thereof.
(b) Where such Intellectual Property Rights are owned by only
one Party, such Party shall have the sole right to determine whether or not to
bring infringement or unfair competition or related proceedings in connection
with any such infringement.
(c) If such infringed Intellectual Property Rights are owned
by more than one Party, then within thirty (30) days of receipt of such notice
or otherwise becoming aware of such infringement, such Parties shall determine
which of them, if any, shall bring an infringement or unfair competition or
related proceedings in connection with such infringement. In any event, all such
Parties shall cooperate in the bringing of such action, and, where required,
join such action. Any amount awarded with respect to any such proceeding shall
be payable entirely to the Party or Parties bringing such proceeding, unless
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otherwise agreed by the Parties. Any disputes as to which Party has the
right to prosecute such proceeding, or as to allocation of proceeds from such
proceeding, shall be settled by arbitration as provided in Article 16.
SECTION 10.6. USE OF AICL TRADEMARKS. (a) AICL hereby grants to Amkor
and CIL (and their respective Affiliates) the right to use AICL's and Anam USA's
respective corporate names, trademarks and service marks ("AICL Trademarks") in
connection with the promotion of AICL's Foundry Services and otherwise in
connection with Amkor's and CIL's Foundry Service operations. Amkor and CIL (and
their respective Affiliates) shall observe all instructions and directions
provided to them by AICL or Anam USA regarding the use of the AICL Trademarks.
Amkor and CIL (and their respective Affiliates) shall not use the AICL
Trademarks in a manner that detracts from the goodwill associated with such AICL
Trademarks.
(b) To the extent required by or advisable under Korean law, the
Parties will enter into a separate trademark agreement in accordance with the
terms set forth in Section 10.6(a) and register such license agreement with the
appropriate Korean authorities.
ARTICLE 11. RESEARCH AND DEVELOPMENT
SECTION 11.1. JOINT R&D COMMITTEE. Amkor and AICL shall establish a
committee (the "R&D Committee") to coordinate their respective research and
development activities and any joint research and development projects. Amkor
and AICL shall designate two (2) individuals to serve on a the R&D Committee.
Such R&D Committee shall meet from time to time during the Term, as it shall in
its discretion determine.
SECTION 11.2. COORDINATION. (a) Amkor and AICL shall collaborate in,
and coordinate, their respective research and development activities, as well as
those of their respective Affiliates, so as to ▇▇▇▇▇▇ the development of new and
improved technologies related to Foundry Services.
(b) Unless otherwise agreed or determined by the R&D
Committee, (i) AICL will have primary responsibility for, and will confine its
research and development activities to, the development of process technology
used in the operation of the Foundry and (ii) Amkor will have primary
responsibility for, and will confine its research and development activities to,
the specification of required process technology features, the development and
creation of design cell libraries, design tools and designs optimized for AICL's
foundry processes.
SECTION 11.3. FUNDING. Unless specifically agreed in writing to the
contrary, Amkor and AICL will fund their own (and their respective Affiliates')
research and development efforts.
ARTICLE 12. WARRANTIES
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SECTION 12.1. GENERAL WARRANTY. Each Party hereby represents and
warrants to the other Parties that (i) such Party has the right, power and
authority to enter into this Agreement and to fully perform all its obligations
hereunder; and (ii) the making of this Agreement does not violate any agreement
existing between such Party and any third party.
SECTION 12.2. AICL FOUNDRY SERVICES WARRANTY. (a) AICL warrants to
Amkor and CIL, with respect to Foundry Services, that:
(i) the relevant Products will be manufactured by AICL
using processes that conform to the processes that
have been specified and qualified by the relevant
Customer for such Product; and
(ii) as delivered by AICL to Amkor and CIL or their
respective Customers, the relevant Products shall
conform to the specifications (including as to yield
and defect levels) set forth in the relevant Customer
Contract.
(b) AICL shall grant to Amkor and CIL, for the benefit of their
Customers, such other warranties with respect to Foundry Services and Products
as Amkor and CIL provide to their respective Customers in the relevant Customer
Contracts, or as may be imposed by law, provided that AICL has received notice
of such warranties prior to its manufacture of such Products.
SECTION 12.3. REMEDIES. In the event of a breach by AICL of the
warranties set forth in Section 12.2, AICL shall provide to Amkor or CIL, as the
case may be, or on its behalf, to its Customer, the same remedy that Amkor or
CIL, as the case may be, is required to provide to such Customer pursuant to the
relevant Customer Contract.
SECTION 12.4. INTELLECTUAL PROPERTY WARRANTY. (a) AICL warrants that
(i) its performance of the Foundry Services and any other services hereunder,
and (ii) the Products and any other material or things delivered by it to Amkor
and CIL and Customers hereunder, will not infringe or misappropriate any third
party's Intellectual Property Rights.
(b) Notwithstanding the foregoing, AICL shall have no
responsibility for infringement arising from any Foundry Service performed for,
or Product delivered to, Amkor or CIL for a Customer to the extent that such
infringement arises solely from AICL's compliance with or use of specifications,
processes, instructions or materials as provided by such Customer.
(c) If any Foundry Services or Products infringe or
misappropriate, or in Amkor's or CIL's, as the case may be, reasonable
determination is likely to infringe or misappropriate, any third party's
Intellectual Property Rights, in addition to the obligations set forth in
Article 13, AICL shall, at Amkor's and CIL's choice and at AICL's sole expense,
either (i) obtain from such third party the right to continue to operate the
Foundry and provide Foundry Services and Products, or (ii) to the extent
permitted, modify the Foundry, Foundry Services and Products to avoid and
eliminate such
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infringement or misappropriation, as the case may be; provided, however, that
such Foundry Services and Products shall at all times comply with all relevant
specifications.
SECTION 12.5. DISCLAIMERS. Except as may be agreed to in writing by
AICL, Amkor and CIL shall disclaim and limit their warranties and limit their
liability to their respective Customers to at least the same extent that AICL
limits its warranties and disclaims liability to Amkor and CIL hereunder.
SECTION 12.6. NO LIENS. AICL represents and warrants that all Products
delivered by it to Amkor, CIL or their respective Customers will be free of all
third-party liens, security interests and other encumbrances.
ARTICLE 13. INDEMNITIES
SECTION 13.1. AICL INDEMNITY. AICL and Anam USA shall, jointly and
severally, indemnify and hold Amkor and CIL and their Affiliates, and each of
their respective employees, directors, distributors, agents, customers,
licensees, successors and assigns harmless from and against all costs,
liabilities, losses, damages, expenses and judgments resulting from or arising
out of (i) any breach of any warranty made by AICL hereunder, including pursuant
to Article 12, (ii) in connection with any claim, action or proceeding, in a
court or otherwise, related to any such breach, (iii) or resulting from AICL's
breach of, or failure to perform under, any agreement among AICL, Amkor and any
Customer; or (iv) any breach by AICL of any agreement between AICL and TI. AICL
and Anam USA shall settle or defend, at their option, all such claims, actions
and proceedings at AICL's and Anam USA's sole cost and expense.
SECTION 13.2. AMKOR INDEMNITY. Amkor and CIL shall, jointly and
severally, indemnify and hold AICL and Anam USA and their Affiliates, and each
of their respective employees, directors, distributors, agents, customers,
licensees, successors and assigns harmless from and against all costs,
liabilities, losses, damages, expenses and judgments resulting from or arising
out of any breach of (i) any warranty made by Amkor or CIL hereunder, including
pursuant to Article 12, or in connection with any claim, action or proceeding,
in a court or otherwise, related to any such breach or (ii) any breach of any
agreement between Amkor and TI. Amkor and CIL shall settle or defend, at their
option, all such claims, actions and proceedings at Amkor's and CIL's sole cost
and expense.
SECTION 13.3. LIMITATION. An Indemnifying Party shall have no
obligation with respect to any claim, action or proceeding (a "Claim") pursuant
to this Article 13 unless (i) such Indemnifying Party is promptly notified by
the Indemnified Party of such Claim, (ii) such Indemnifying Party has sole
control of the defense and settlement of such Claim, and (iii) the associated
Indemnified Party provides such Indemnifying Party with reasonable assistance,
at such Indemnifying Party's expense, in the defense and settlement of such
Claim.
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SECTION 13.4. PAYMENTS. In the event that AICL is required to make any
indemnity payment to Amkor, CIL or any of their respective Affiliates, such
indemnified Party and AICL shall comply with the Korean government regulations
necessary to enable AICL to obtain approval to make such payments in United
States currency.
ARTICLE 14. LIABILITY LIMITATIONS
SECTION 14.1. EXCLUSION OF DAMAGES. EXCEPT AS PROVIDED IN ARTICLE 13,
IN NO EVENT SHALL ANY PARTY BE LIABLE TO ANY OTHER PARTY HEREUNDER FOR ANY
INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON BREACH
OF CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE, AND
WHETHER OR NOT THE PARTY AGAINST WHOM LIABILITY IS SOUGHT HAS BEEN ADVISED OF
THE POSSIBILITY OF SUCH DAMAGE.
SECTION 14.2. FAILURE OF ESSENTIAL PURPOSE. The limitations specified
in this Article shall survive and apply even if any limited remedy specified in
this Agreement is found to have failed of its essential purpose.
ARTICLE 15. TERM AND TERMINATION
SECTION 15.1. TERM. (a) The initial term of this Agreement shall
commence on the Effective Date and continue unless terminated in accordance with
this Article 15.
(b) Any Party may terminate this Agreement for any or no
reason with respect to such Party, upon on five (5) years' written notice given
to all other Parties at any time after the fifth (5th) anniversary of the
Effective Date.
SECTION 15.2. DEFAULT. If a Party (a "Breaching Party") defaults in the
performance of any of its material obligations to another Party or Parties
hereunder (the "Non-Breaching Party"), the Breaching Party shall use its best
efforts to correct such default within ninety (90) days after written notice
thereof from the Non-Breaching Party. If any such default is not corrected
within such ninety (90)-day period, then provided that the Non-Breaching Party
is not an Affiliate of the Breaching Party, the Non-Breaching Party shall have
the right, in addition to any other remedies it may have, to terminate this
Agreement by giving written notice to all Parties.
SECTION 15.3. TERMINATION FOR INSOLVENCY. Any Party may terminate this
Agreement upon one hundred eighty (180) days' written notice to the other
Parties if a Bankruptcy Event occurs with respect to another Party that is not
an Affiliate of the terminating Party.
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SECTION 15.4. EFFECT OF TERMINATION. Upon any expiration or termination
of this Agreement (i) AICL shall complete all work in progress with respect to
Customer Contracts entered into prior to such termination, (ii) each Party shall
satisfy its payment obligations hereunder that arose prior to such termination
or incurred in connection with any completion of work in progress, and (iii)
each Party shall return all property, including copies of all Confidential
Information, to the Party that owns such property.
SECTION 15.5. SURVIVAL. The following Articles and Sections shall
survive any termination or expiration of this Agreement: 1, 7.1, 7.3, 8, 10,
11.1, 11.3, 11.5, 13, 14, 15, 16, 17 and 18.
ARTICLE 16. ARBITRATION
SECTION 16.1. ARBITRATION OF DISPUTES. (a) Any controversy, dispute or
claim arising out of, in connection with, or in relation to the interpretation,
performance or breach of this Agreement, including any claim based on contract,
tort or statute, shall be settled, at the request of any Party, by arbitration
conducted in Santa ▇▇▇▇▇ County, California, USA or such other location upon
which the Parties may mutually agree, before and in accordance with the
then-existing Rules of Commercial Arbitration of the American Arbitration
Association ("AAA"), and judgment upon any award rendered by the arbitrator may
be entered by any State or Federal court having jurisdiction thereof.
(b) The Parties hereby consent to the jurisdiction of an
arbitration panel and of the courts located in, and venue in, Santa ▇▇▇▇▇
County, California, USA, with respect to any dispute arising under this
Agreement.
(c) Any controversy concerning whether a dispute is an
arbitrable dispute hereunder shall be determined by the one or more arbitrators
selected in accordance with Section 16.3.
(d) The Parties intend that this agreement to arbitrate be
valid, specifically enforceable and irrevocable.
SECTION 16.2. INITIATION OF ARBITRATION. A Party may initiate
arbitration hereunder by filing a written demand for arbitration with each other
Party to the dispute in accordance with Section 17.11 and with the AAA.
Arbitration hereunder shall be conducted on a timely, expedited basis.
SECTION 16.3. SELECTION OF ARBITRATOR. Any arbitration shall be held
before a single arbitrator, who shall be selected in accordance with the
procedures of the AAA, and shall be a member of the Large Complex Case Panel
with significant intellectual property (patent and copyright) law and
semiconductor manufacturing experience. If the Parties are unable to agree on
single arbitrator, then each of AICL and Amkor shall select an arbitrator and
such arbitrators shall select a third arbitrator. Such arbitration shall then be
held before such three arbitrators.
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SECTION 16.4. AWARDS. The arbitrator(s) may, in its discretion, award
to the prevailing Party in any arbitration proceeding commenced hereunder, and
the court shall include in its judgment for the prevailing Party in any claim
arising hereunder, the prevailing Party's costs and expenses (including expert
witness expenses and reasonable attorneys' fees) of investigating, preparing and
presenting such arbitration claim or cause of action.
ARTICLE 17. MISCELLANEOUS
SECTION 17.1. INDEPENDENT CONTRACTORS. The Parties hereto are
independent contractors. Nothing contained herein or done pursuant to this
Agreement shall constitute any Party the agent of any other Party for any
purpose or in any sense whatsoever, or constitute the Parties as partners or
joint venturers.
SECTION 17.2. BANKRUPTCY. (a) All rights and licenses with respect to
Intellectual Property Rights licensed to a Party pursuant to this Agreement are,
and shall otherwise be deemed to be, for purposes of Section 365(n) of the
United States Bankruptcy Code, licenses to rights of "intellectual property" as
defined thereunder. Notwithstanding any provision contained herein to the
contrary, if a Party (the "Bankrupt Party") is under any proceeding under the
Bankruptcy Code and the trustee in bankruptcy of such Party, or such Party, as a
debtor in possession, rightfully elects to reject this Agreement, the other
Parties that are not Affiliates of the Bankrupt Party may, pursuant to 11 U.S.C.
Section 365(n)(1) and (2), retain any and all rights granted to them hereunder,
to the maximum extent permitted by law, subject to the payments specified
herein.
SECTION 17.3. ASSIGNABILITY. AICL and Anam USA shall not assign or
delegate this Agreement, or any of AICL's or Anam USA's rights or duties
hereunder, directly, indirectly, by operation of law, or otherwise, or in
connection with a Change of Control, and any such purported assignment or
delegation shall be void, except with the express written permission of Amkor.
Without limiting the foregoing, any permitted assigns or successors of the
Parties shall be bound by all terms and conditions of this Agreement and this
Agreement shall inure to the benefit of such permitted successors or assigns.
SECTION 17.4. ENTIRE AGREEMENT. The terms and conditions herein
contained constitute the entire agreement between the Parties with respect to
the subject matter hereof and supersede all previous and contemporaneous
agreements and understandings, whether oral or written, between the Parties with
respect to the subject matter hereof.
SECTION 17.5. AMENDMENT. No alteration, amendment, waiver, cancellation
or any other change in any term or condition of this Agreement shall be valid or
binding on any Party unless mutually assented to in writing by all Parties.
SECTION 17.6. FORCE MAJEURE. No Party shall be liable for delay in
performance or failure to perform, in whole or in part, to the extent due to
labor dispute, strike, war or act of war, insurrection,
-▇▇-
▇▇
▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ of public enemy, fire, flood, or other acts of God, or
the acts of any governmental authority, or other causes beyond the control of
such Party. The Party experiencing such cause or delay shall immediately notify
the other Parties of the circumstances which may prevent or significantly delay
its performance hereunder, and shall use its best efforts to alleviate the
effects of such cause or delay.
SECTION 17.7. EXPORT LAWS. This Agreement is subject to all applicable
United States laws and regulations relating to exports and to all administrative
acts of the U.S. Government pursuant to such laws and regulations. No Party
shall export or re-export, directly or indirectly, any technical data or
semiconductor or other materials in violation of the any U.S. export or similar
laws.
SECTION 17.8. GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY THE
LAWS OF THE STATE OF CALIFORNIA WITHOUT REGARD TO THAT STATE'S CHOICE OF LAWS.
THE UNITED NATIONS CONVENTION ON THE INTERNATIONAL SALE OF GOODS SHALL NOT APPLY
TO THIS AGREEMENT OR ANY TRANSACTIONS CONTEMPLATED HEREBY.
SECTION 17.9. NO WAIVER. The failure of a Party to enforce at any time
any of the provisions of this Agreement, or the failure to require at any time
performance by any other Party of any of the provisions of this Agreement, shall
in no way be construed to be a present or future waiver of such provisions, nor
in any way affect the validity thereof or a Party's right to enforce each and
every such provision thereafter. The express waiver by a Party of any provision,
condition or requirement of this Agreement shall not constitute a waiver of any
future obligation to comply with such provision, condition or requirement.
SECTION 17.10. SEVERABILITY. If, for any reason, a court of competent
jurisdiction finds any provision of this Agreement, or portion thereof, to be
invalid or unenforceable, such provision of the Agreement will be enforced to
the maximum extent permissible so as to effect the intent of the Parties, and
the remainder of this Agreement will continue in full force and effect. The
Parties agree to negotiate in good faith an enforceable substitute provision for
any invalid or unenforceable provision that most nearly achieves the intent and
economic effect of such provision.
SECTION 17.11. NOTICES. All notices, requests, demands, waivers, and
other communications required or permitted hereunder shall be in writing and
shall be deemed to have been duly given: (i) when delivered by hand or confirmed
facsimile transmission; (ii) one day after delivery by receipted overnight
delivery; or (iii) four days after being mailed by certified or registered mail,
return receipt requested, with postage prepaid to the appropriate address set
forth at the beginning of this Agreement or to such other person or address as
any Party shall furnish to the other Parties in writing pursuant to the above.
SECTION 17.12. TITLES AND SUBTITLES. The titles and subtitles used in
this Agreement are used for convenience only and are not to be considered in
construing or interpreting this Agreement.
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SECTION 17.13. COUNTERPARTS. This Agreement may be executed in
counterparts which, taken together, shall constitute one and the same document.
IN WITNESS WHEREOF, the Parties have caused this Agreement to be
executed by their duly authorized officers or representatives to be effective as
of the date first above written.
AMKOR TECHNOLOGY, INC. ANAM INDUSTRIAL CO., LTD.
By:___________________________________ By:___________________________________
Name: Name:
Title: Title:
AMKOR ELECTRONICS, INC. ANAM USA, INC.
By:___________________________________ By:___________________________________
Name: Name:
Title: Title:
C.I.L. LIMITED
By:_________________________________
Name:
Title:
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TABLE OF CONTENTS
ARTICLE 1. CONSTRUCTION AND DEFINITIONS.........................................................................-2-
Section 1.1. Construction........................................................................-2-
Section 1.2. Definitions.........................................................................-2-
ARTICLE 2. MARKETING AND SALES..................................................................................-4-
Section 2.1. Exclusivity.........................................................................-4-
Section 2.2. Amkor and CIL Territorial Division..................................................-4-
Section 2.3. Customer Contracts..................................................................-4-
Section 2.4. Customer Pricing....................................................................-5-
ARTICLE 3. OPERATION OF FOUNDRY BUSINESS........................................................................-5-
Section 3.1. AICL's General Responsibilities with Respect to Foundry Services....................-5-
Section 3.2. Amkor's and CIL's General Obligations...............................................-5-
ARTICLE 4. FOUNDRY PRICING......................................................................................-6-
Section 4.1. Foundry Fee.........................................................................-6-
Section 4.2. Additional Non-Recurring Engineering Costs..........................................-6-
Section 4.3. Determination of Foundry Factor.....................................................-6-
Section 4.4. Payment Obligation..................................................................-7-
Section 4.5. Payment Flow........................................................................-7-
ARTICLE 5. FORECASTS AND ORDER COORDINATION.....................................................................-7-
Section 5.1. Foundry Management Systems..........................................................-7-
Section 5.2. Electronic Data Exchange............................................................-8-
Section 5.3. Customer Forecasts..................................................................-9-
Section 5.4. Order Coordination..................................................................-9-
Section 5.5. Allocation..........................................................................-9-
Section 5.6. TI Agreement........................................................................-9-
Section 5.7. Handling of Customer Materials.....................................................-10-
ARTICLE 6. SHIPMENTS, PAYMENTS , ETC...........................................................................-10-
Section 6.1. Customer Shipments.................................................................-10-
Section 6.2. Storage............................................................................-10-
ARTICLE 7. RECORDS, ETC........................................................................................-10-
Section 7.1. Records............................................................................-10-
Section 7.2. Access.............................................................................-11-
Section 7.3. Audit..............................................................................-11-
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ARTICLE 8. CONFIDENTIAL INFORMATION............................................................................-11-
Section 8.1. Confidential Information Exclusions................................................-11-
Section 8.2. Compelled Disclosure...............................................................-11-
Section 8.3. Confidentiality Obligation.........................................................-12-
Section 8.4. Remedies...........................................................................-12-
Section 8.5. No Confidential Information of Other Parties.......................................-12-
ARTICLE 9. ANAM USA'S RESPONSIBILITIES.........................................................................-12-
Section 9.1. Credit Functions...................................................................-12-
ARTICLE 10. INTELLECTUAL PROPERTY OWNERSHIP AND LICENSES.......................................................-12-
Section 10.1. Intellectual Property Ownership...................................................-12-
Section 10.2. Licenses..........................................................................-13-
Section 10.3. Intellectual Property Protection..................................................-13-
Section 10.4. Third Party Licenses..............................................................-13-
Section 10.5. Enforcement of Intellectual Property..............................................-14-
Section 10.6. Use of AICL Trademarks............................................................-14-
ARTICLE 11. RESEARCH AND DEVELOPMENT...........................................................................-14-
Section 11.1. Joint R&D Committee...............................................................-14-
Section 11.2. Coordination......................................................................-15-
Section 11.3. Funding...........................................................................-15-
ARTICLE 12. WARRANTIES..........................................................................................-15-
Section 12.1. General Warranty..................................................................-15-
Section 12.2. AICL Foundry Services Warranty....................................................-15-
Section 12.3. Remedies..........................................................................-15-
Section 12.4. Intellectual Property Warranty....................................................-16-
Section 12.5. Disclaimers.......................................................................-16-
Section 12.6. No Liens..........................................................................-16-
ARTICLE 13. INDEMNITIES........................................................................................-16-
Section 13.1. AICL Indemnity....................................................................-16-
Section 13.2. Amkor Indemnity...................................................................-16-
Section 13.3. Limitation........................................................................-17-
Section 13.4. Payments..........................................................................-17-
ARTICLE 14. LIABILITY LIMITATIONS .............................................................................-17-
Section 14.1. Exclusion of Damages..............................................................-17-
Section 14.2. Failure of Essential Purpose......................................................-17-
ARTICLE 15. TERM AND TERMINATION...............................................................................-17-
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Section 15.1. Term..............................................................................-17-
Section 15.2. Default...........................................................................-17-
Section 15.3. Termination for Insolvency........................................................-18-
Section 15.4. Effect of Termination.............................................................-18-
Section 15.5. Survival..........................................................................-18-
ARTICLE 16. ARBITRATION .......................................................................................-18-
Section 16.1. Arbitration of Disputes...........................................................-18-
Section 16.2. Initiation of Arbitration.........................................................-19-
Section 16.3. Selection of Arbitrator...........................................................-19-
Section 16.4. Awards ...........................................................................-19-
ARTICLE 17. MISCELLANEOUS......................................................................................-19-
Section 17.1. Independent Contractors...........................................................-19-
Section 17.2. Bankruptcy........................................................................-19-
Section 17.3. Assignability.....................................................................-19-
Section 17.4. Entire Agreement..................................................................-20-
Section 17.5. Amendment.........................................................................-20-
Section 17.6. Force Majeure.....................................................................-20-
Section 17.7. Export Laws.......................................................................-20-
Section 17.8. Governing Law.....................................................................-20-
Section 17.9. No Waiver ........................................................................-20-
Section 17.10. Severability.....................................................................-20-
Section 17.11. Notices..........................................................................-21-
Section 17.12. Titles and Subtitles.............................................................-21-
Section 17.13. Counterparts.....................................................................-21-
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26
FOUNDRY AGREEMENT
by and among
AMKOR TECHNOLOGY, INC.;
AMKOR ELECTRONICS, INC.;
C.I.L. LIMITED (CAYMANS);
ANAM INDUSTRIAL CO., LTD.;
and
ANAM USA
dated as of November 1, 1997