SETTLEMENT AGREEMENT BETWEEN ADVANCED MICRO DEVICES INC. AND INTEL CORPORATION
Exhibit
10.1
SETTLEMENT
AGREEMENT BETWEEN
ADVANCED
MICRO DEVICES INC. AND
INTEL
CORPORATION
This
Settlement Agreement (“Agreement”),
effective as of the 11th day
of November 2009 ("Effective Date"), is
entered into by and between Advanced Micro Devices, Inc. ("AMD"), and Intel
Corporation (“Intel”). In
consideration of the agreement set forth below, and for other good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, AMD
and Intel agree as follows:
RECITALS
A. Intel
and AMD are parties, claimants, complainants or interested parties to the
following lawsuits, disputes and administrative actions (collectively, “Actions”):
1. Delaware
Litigation. AMD filed suit against Intel under the caption
Advanced Micro Devices, Inc.
and AMD International Sales & Services, Ltd. v. Intel
Corp. and Intel Kabushiki Kaisha, in the United States District Court for
the District of Delaware, Civil Action No. 05-441 (JJF), subsequently
consolidated for the purpose of discovery as part of MDL No. 05-1717, entitled
In re Intel Corporation
Microprocessor Litigation. This suit is referred to herein as
the “Delaware
Litigation”;
2. Japan
Litigations. Intel Kabushiki Kaisha, a Japanese Corporation
and a wholly owned subsidiary of Intel (“Intel IJKK”), is a
defendant in two suits brought in Japanese courts by AMD Japan Ltd. (“AMD Japan”), a
wholly-owned subsidiary of AMD. AMD Japan filed a suit in the Tokyo
District Court on June 30, 2005, case number 2005 (Wa) 13151, alleging acts of
unfair competition by Intel IJKK involving sales of microprocessors to Japanese
manufacturers of personal computers. Claimed damages in the Tokyo
District Court suit are $55 million and interest based on Section 709 of the
Civil Code of Japan. Also on ▇▇▇▇ ▇▇, ▇▇▇▇, ▇▇▇ ▇▇▇▇▇ filed a suit in
the Tokyo High Court, case number 2005 (Wa) 4, alleging violations of the
Antimonopoly Law of Japan principally involving sales of microprocessors to
Japanese manufacturers of personal computers. Claimed damages in the
Tokyo High Court suit are $50 million and interest based on Section 25 of the
Antimonopolization Law of Japan. These suits are referred to herein
as the “Japan
Litigations”;
3. GF
Dispute. On or about March 9, 2009, AMD closed a transaction
with Advanced Technology Investment Company “ATIC” through which, among other
actions, ATIC and AMD created a venture called GLOBALFOUNDRIES (“GF”), transferred
AMD’s wafer manufacturing operations to GF, and claimed that GF was a subsidiary
as defined under a January 1, 2001 Intel/AMD patent cross-license, and as such,
entitled to rights thereunder. Intel claims that various aspects of
this transaction have breached the Intel/AMD patent
cross-license. Intel also has advised AMD and GF that by using,
manufacturing, selling, offering to sell and/or importing products utilizing
Intel’s patented inventions without a license, AMD and GF are each infringing
certain of Intel’s patents. In response, AMD has accused Intel of
breaching that patent cross-license.
B. AMD
has alleged various claims against Intel in the Actions, including without
limitation that Intel has been leveraging dominance in the supply of x86
microprocessors through the use of exclusionary, pricing, discount and other
practices that unlawfully restrict AMD’s ability to compete. In the
Delaware Litigation, both Intel and AMD have accused each other of violating the
relevant standards related to evidence retention.
C. Intel
filed an answer in the Delaware Litigation on September 1, 2005, denying all the
material allegations of the complaint and asserting various defenses to each of
AMD’s claims. Intel continues to dispute AMD’s claims.
D. To
avoid the time and expense of litigation, and without any admission of liability
or fault, the Parties wish to fully, finally and forever resolve, compromise and
settle the Actions on the terms and conditions set forth
below. Further, Intel and AMD acknowledge that for most of the last
three decades, their relationship has been difficult, challenging and often
acrimonious. Intel and AMD wish to change that relationship going
forward, both by “wiping the slate clean” as to all past grievances, and by
approaching future grievances in a constructive manner designed to address and
resolve such grievances amicably, if possible.
TERMS
AND CONDITIONS
1.0 DEFINITIONS
1.1 “Actions” shall have
the meaning set forth in Recital A.
1.2 “Administrative
Action” shall mean and include without limitation (i) the Administrative
Actions listed on Exhibit D attached
hereto and incorporated by reference; (ii) any other investigation or inquiry,
of which AMD is aware, by any judicial or administrative authority in any
jurisdiction concerning Intel’s business practices and/or whether Intel has
violated the competition, antitrust or unfair competition laws or regulations of
any jurisdiction; and (iii) any judicial or administrative action arising out of
or seeking to review any action described in (i) or (ii) of this
definition.
1.3 “Administrative
Complaint” shall mean any investigation or inquiry by a competition
enforcement or regulatory body to which AMD has complained or petitioned
regarding Intel’s business practices or in which AMD has submitted information
or any white paper regarding such conduct, whether voluntarily or in response to
a request by such body, at any time from January 1, 1996 to the Effective Date,
including without limitation the Administrative Complaints listed on Exhibit D
and attached hereto and incorporated by reference.
1.4 “AMD” shall mean
Advanced Micro Devices, Inc.
In Section 4.1 and 4.3, “AMD” shall also mean AMD International Sales and
Services Ltd. (a Delaware corporation) (hereinafter “AMD ISS”). In
Section 4.2, “AMD” shall also mean AMD ISS, and AMD’s and AMD ISS’s
predecessors, successors, subsidiaries, affiliates and assigns, as well as the
past and present officers, directors, employees, agents and attorneys of any of
them.
1.5 “AMD Microprocessor”
shall have the same meaning as the term “AMD Processor” in the New Patent Cross
License.
1.6 “Claims” shall mean
and includes counterclaims and cross-claims, as well as any and all actions,
causes of action, claims, costs, damages, debts, demands, expenses, liabilities,
losses, obligations, proceedings and suits of every kind and nature, liquidated
or unliquidated, fixed or contingent, in law, equity or otherwise, and whether
presently known or unknown, including but not limited to all such matters that
have been or could have been asserted in the Actions.
1.7 “Computer Product”
shall mean one or more Personal Computers that include one or more x86 Intel
Microprocessors or x86 AMD Microprocessors.
1.8 “Dispute” shall have
the meaning set forth in Section 7.1.
1.9 “EC Litigation” shall
mean Intel’s Application for Annulment Pursuant to Articles 230 and 229 EC of
Commission Decision C(2009) 3726 final of 13 May 2009 in Case COMP/C-3/37.990
Intel, filed with the Court of First Instance of the European
Communities.
1.10 “FTC Investigation”
shall mean the U.S. Federal Trade Commission investigation In the Matter of
Intel Corporation, No. 061-0247.
1.11 “Intel” shall mean
Intel Corporation. In Section 4.1, “Intel” shall also mean Intel
IJKK, and Intel's and Intel IJKK’s predecessors, successors, subsidiaries,
affiliates and assigns, as well as the past and present officers, directors,
employees, agents and attorneys of any of them. In Sections 4.2 and
4.3, “Intel” shall also mean Intel and Intel IJKK.
1.12 “Intel Customers”
shall mean any and all persons or entities that purchase Intel Microprocessors
or that distributes or sells Intel Microprocessors, platforms for Computer
Products that include Intel Microprocessors, or Computer Products containing
Intel Microprocessors.
1.13 "Intel Microprocessor”
shall have the same meaning as the term “Intel Processor” in the New Patent
Cross-License.
1.14 “New York Litigation”
shall mean the lawsuit filed against Intel by the State of New York and as of
the Effective Date styled State of New York, by Attorney
General ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ v. Intel Corporation, Civil Action No. 09-827
(UNA)., pending in the United States District Court for the District of
Delaware.
1.15 “Party” shall mean
Intel or AMD.
1.16 “Parties” shall mean
AMD and Intel collectively.
1.17 “Person” shall mean
any natural person, and any corporation, partnership, limited liability company
or other legal entity recognized in any jurisdiction in the world.
1.18 “Personal Computer”
shall mean one or more desktop (including without limitation servers and
workstations), laptop, tablet, netbook or notebook computers. For
clarity, "Personal Computer" shall not mean smartphones, cell phones, Pocket PCs
or consumer electronic devices.
1.19 “GF Agreement” shall
mean the Patent Agreement between Intel and GF, of even date herewith, attached
hereto as Exhibit
C and incorporated herein by reference.
1.20 “Post-Effective Date
Conduct” shall mean conduct of Intel or AMD occurring after the Effective
Date.
1.21 “Pre-Effective Date
Conduct” shall have the meaning set forth in Section 4.7.
1.22 “Specified AMD
Product” shall mean (i) an AMD Microprocessor, (ii) a Computer Product
that contains one or more AMD Microprocessors, and/or (iii) a platform for a
Computer Product that contains one or more AMD Microprocessors.
1.23 “Third Party” shall
mean any Person other than AMD and Intel.
1.24 “New Patent Cross
License” shall mean the Patent Cross License between Intel and AMD, of
even date herewith, attached hereto as Exhibit B and
incorporated herein by reference.
2.0 BUSINESS
PRACTICES
As part
of the overall resolution of the Actions, and without conceding expressly or by
implication that any of the following business practices are required by the
laws of any jurisdiction, or any order issued by any regulatory or adjudicative
body, anywhere in the world, or that contrary business practices would violate
any such laws or orders, the Parties agree to adhere to the Business Practices
set forth in Section 2.0 for the term, and subject to the conditions, set forth
in Section 6.0.
2.1 SALES AND MARKETING
PRACTICES: CUSTOMERS
2.1.1 Intel
shall not award, offer, grant, pay or extend (hereinafter, collectively, “Award”) any discount,
rebate, or other financial or non-financial benefit, inducement or consideration
of any kind (hereinafter, collectively, “Benefit”), that is
conditioned orally, in writing or through some other express or implied mutual
understanding between Intel and the customer, on the customer limiting or
restricting, or agreeing to be limited or restricted in, its freedom to satisfy
any or all of its demand for microprocessors for Computer Products through the
customer’s:
a. exclusive
use of x86 Intel Microprocessors, or platforms for Computer Products that
include Intel Microprocessors, in all of its business, or in any geography,
market segment, product segment, or distribution channel; or
b. limiting
or delaying its purchase or use of Specified AMD Products on a geographic,
platform, market segment, distribution channel, volume, share of purchase, or
any other basis.
PROVIDED,
HOWEVER, that nothing in this Section 2.1.1 shall limit Intel’s right (i) to
lawfully compete on the merits for selection by the customer for any
then-current design award or for satisfaction of any or all of the customer’s
then-current demand for microprocessors in a manner consistent with this
Agreement or (ii) to condition a Benefit on the exclusive use of Intel
microprocessors in a segment or channel where (a) Intel is making a significant,
bona fide investment to enable the customer’s entry into such segment or
channel, (b) the period of exclusivity is no longer than necessary for Intel to
receive a reasonable commercial return on its customer-specific investment in
such entry and (c) all of the terms and conditions of such exclusive
arrangement, including without limitation its duration and all related
consideration, are set forth in a written instrument executed both by Intel and
the customer. Nothing in this Section 2.1.1 or any other term in this
Agreement shall be construed to constitute AMD’s acquiescence in Intel’s right
to engage in any of the conduct described as contested in Section 3.5, and AMD
reserves all rights to seek redress for any such conduct occurring after the
Effective Date.
2.1.2 Intel
shall not Award any Benefit that is conditioned orally, in writing or through
some express or implied mutual understanding, on a customer’s:
a. limiting,
depositioning or delaying its marketing, promotion, launch, advertising,
production, distribution, sale or branding of any product containing an AMD
Microprocessor; or
b. forbearance,
delay or abstention from participating in, or allowing its products to be
featured or exhibited in, any AMD promotional activity, product launch, trade
show exhibit, advertising, or public relations campaign.
2.1.3 Intel
shall not withhold or threaten to withhold any Benefit, nor impose or threaten
to impose any penalty, on the basis of a customer’s refusal to accede to a
condition precluded by, or to enter into an understanding prohibited by,
Sections 2.1.1 or 2.1.2.
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2.2
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SALES AND MARKETING
PRACTICES: RETAILERS, DISTRIBUTORS, ODMs AND END
USERS
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2.2.1 Intel
shall not Award any Benefit that is conditioned, orally, in writing, or through
some other express or implied mutual understanding, on a non-customer Third
Party (including without limitation any retailer, distributor, original design
manufacturer ("ODM"), original
equipment manufacturer ("OEM"), system
integrator and value added reseller, but excluding any direct customer and any
end user (hereinafter, collectively, "Non-Customer Third
Party") limiting or restricting, or agreeing to be limited or restricted
in, the Non-Customer Third Party’s freedom to satisfy any or all of its demand
for microprocessors for Computer Products through the Non-Customer Third
Party’s:
a. exclusive
use of Intel Microprocessors, platforms for Computer Products that include Intel
Microprocessors, or Computer Products containing Intel Microprocessors in all of
its business, or in any geography, market segment, product segment, outlet or
distribution channel; or
b. limiting,
depositioning or delaying its purchase or use of Specified AMD Products on a
geographic, platform, market segment, distribution channel, volume, share of
purchase, or any other basis.
PROVIDED,
HOWEVER, that nothing in this Section 2.2.1 shall limit Intel’s right (i) to
compete on the merits for selection by a Non-Customer Third Party for any design
win or for satisfaction of any of Non-Customer’s Third Party’s then-current
demand for microprocessors or (ii) to condition such a Benefit on the exclusive
use of Intel Microprocessors in a segment or channel where (a) Intel is making a
significant, bona fide investment to enable the Non-Customer Third Party’s entry
into a segment or channel, (b) the period of exclusivity is no longer than
reasonably necessary for Intel to receive a reasonable commercial return on its
Non-Customer Third Party-specific investment in such entry and (c) all of the
terms and conditions of such exclusive arrangement, including without limitation
its duration and all related consideration, are set forth in a written
instrument executed both by Intel and the Non-Customer Third Party.
2.2.2 Intel
shall not Award any Benefit that is conditioned orally, in writing or through
some other express or implied mutual understanding, on a Non-Customer Third
Party’s:
a. limiting,
depositioning or delaying its purchase, sale, design, development, marketing,
promotion, launch, production, distribution, branding, advertising, exhibition,
offer or display of any Specified AMD Product; or
b. forbearance,
delay or abstention from participating in, or allowing itself or its products to
be featured or exhibited in, any AMD promotional activity, product launch, trade
show exhibit, advertising or public relations campaign.
2.2.3 Intel
shall not withhold or threaten to withhold any Benefit on the basis of a Third
Party’s refusal to accede to a condition precluded by, or enter into an
understanding prohibited by, Sections 2.2.1 and 2.2.2.
2.3 TECHNICAL
PRACTICES
Intel
shall not include any Artificial Performance Impairment in any Intel
product or require any Third Party to include an Artificial
Performance Impairment in the Third Party’s product. As used in this
Section 2.3, “Artificial Performance
Impairment” means an affirmative engineering or design action by Intel
(but not a failure to act) that (i) degrades the performance or operation of a
Specified AMD product, (ii) is not a consequence of an Intel Product Benefit and
(iii) is made intentionally to degrade the performance or operation of a
Specified AMD Product. For purposes of this Section 2.3, “Product Benefit”
shall mean any benefit, advantage, or improvement in terms of performance,
operation, price, cost, manufacturability, reliability, compatibility, or
ability to operate or enhance the operation of another product.
In no
circumstances shall this Section 2.3 impose or be construed to impose any
obligation on Intel to (i) take any act that would provide a Product Benefit to
any AMD or other non-Intel product, either when such AMD or non-Intel product is
used alone or in combination with any other product, (ii) optimize any products
for Specified AMD Products, or (iii) provide any technical information,
documents, or know how to AMD.
2.4 PRACTICES NOT A BREACH OF
THIS AGREEMENT
2.4.1 Notwithstanding
any of other provision in this Agreement, in no event shall a Third Party’s
action, or forbearance from taking an action, merely as a consequence of Intel
securing business sought by AMD constitute a breach of this Agreement by Intel,
so long as Intel does not violate any of the terms of Sections 2.1.1 through
2.3.
2.4.2 Nothing
in this Agreement shall prohibit Intel in connection with its offer or sale of
any microprocessor from Awarding any Benefit or Discount to a Third Party where
such offer or sale, or term or condition thereof, meets in good faith a
respective Benefit, Discount, or a type of term and/or condition then being
offered to that Third Party by any other supplier with respect to a reasonably
comparable microprocessor.
2.4.3 Intel
may, without violating this Agreement, limit a Third Party's use of its market
development funds or other promotional funds to the promotion of Intel and
Intel-based products unless such limitation includes a
Restriction. "Restriction" shall
mean a requirement imposed or required by or on behalf of Intel that the
recipient of market development funds or other promotional funds from Intel
("Recipient") may not include AMD or AMD products in a portion of an OEM
catalog, retailer circular, web page or site, point-of-sale marketing piece, or
event where such respective portion is not funded by Intel. The Intel
Inside program rules dated as of April 1, 2009 are conclusively presumed
permissible under this Agreement, except to the extent they include a
Restriction.
2.5 PROCUREMENT
2.5.1 Neither
Intel nor AMD shall either request of, suggest to or cause any public
procurement agent or authority to issue or adopt a procurement specification for
a Computer Product that excludes the qualification of a Computer Product
employing the other Party’s microprocessor on the basis of a function, industry
standard specification or benchmark that is immaterial to the intended use of
the product.
2.6 MISCELLANEOUS
PROVISIONS
2.6.1 Intel
shall conduct regular training of all of its personnel engaged in microprocessor
sales and marketing concerning the requirements and prohibitions contained in
the Business Practices Section of this Agreement.
2.6.2 Intel
shall provide a copy of Section 2.0 of this Agreement to its customers by making
it reasonably available on its website in a conspicuous manner.
3.0 EXECUTION OF OTHER
CONTEMPORANEOUS AGREEMENTS AND DISMISSAL OF THE ACTIONS
3.1 Consideration. The
Parties agree that the covenants, promises and releases set forth herein, in the
New Patent Cross License, and in the GF Agreement, constitute fair and adequate
consideration for the Parties’ execution of this Agreement and the agreements
set forth in Section 3.7.
a. As
consideration for this settlement agreement alone, Intel agrees to pay and shall
pay to AMD the total sum of One Billion, Two Hundred and Fifty Million Dollars
($1,250,000,000), in U.S. currency, within thirty (30) days of the Effective
Date.
b. This
payment shall be non-refundable and shall be made by one or more wire transfers
of immediately available funds to the following AMD account:
Bank of America
ABA #: ▇▇▇▇▇▇▇▇▇ (domestic
wire)
Beneficiary: AMD,
Inc.
Bank Address: ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
3.2 No Admission of
Liability. The Parties agree that the settlement of the
Actions is intended solely as a compromise of disputed Claims. Each
Party expressly denies any liability or wrongdoing. A Party’s
execution of this Agreement, the agreements set forth in Section 3.7 below, its
agreement to any term of this Agreement and/or the agreements set forth in
Section 3.7 below, and any action taken by a Party pursuant to this Agreement
and/or the agreements set forth in Section 3.7 below do not constitute and shall
not be construed as an admission of liability or as a concession by any Party
that any Claim or defense asserted or that could have been asserted by the other
Party is valid.
3.3 Dismissal and Withdrawal of
Claims and Allegations. Immediately after execution of this
Agreement by all Parties, the Parties shall cause their respective counsel to
sign Stipulations for Dismissal with Prejudice of the Delaware Litigation and
the Japan Litigations, with each Party to bear its own attorneys’ fees and
costs, including without limitation proposed Orders of Dismissal, in the forms
attached hereto as Exhibits A-1 and A-2
and incorporated herein by reference (“Stipulations of Dismissal
with Prejudice and Proposed Orders”). AMD shall immediately file
and/or lodge the Stipulations of Dismissal with Prejudice and Proposed Orders
to: (i) effect dismissal of the Actions with prejudice, including
without limitation all Claims asserted therein, with each Party to bear its own
attorneys' fees and costs; and (ii) authorize the Court in the Delaware
Litigation to retain jurisdiction to enforce this Agreement to the limited
extent permitted by Sections 3.6.a and 7, below.
3.4 Administrative Complaints
and Administrative Actions.
a. AMD
represents and warrants that it has not initiated, filed, intervened in or
attempted to intervene in any Administrative Complaint or Administrative Action
concerning Intel except for those listed on Exhibit D.
b. For
each and every Administrative Complaint filed by AMD, AMD agrees to promptly
(and in no event later than five (5) days after the Effective Date) notify in
writing each authority to which such complaint was made that except as provided
in Section 3.5, AMD has resolved its disagreements with and complaints
concerning Intel contained in that Administrative Complaint and believes that
this Agreement provides AMD with fair compensation for any and all actual or
alleged harm and damages that AMD did or may have suffered in connection with
matters addressed or encompassed within such Administrative
Complaint.
c. For
each and every Administrative Action listed on Exhibit D, AMD agrees to promptly
(and in no event later than five (5) days after the Effective Date) notify in
writing each authority listed on Exhibit D that except as provided in Section
3.5, AMD has resolved its disagreements with and complaints
concerning Intel contained in that Administrative Complaint and believes that
this Agreement provides AMD with fair compensation for any and all actual or
alleged harm and damages that AMD did or may have suffered in connection with
matters discussed in the Administrative Complaint. In addition, AMD
agrees that it will not ghost-write or edit any other briefs, pleadings, or
“friend of the court” or “friend of the tribunal” materials or briefs in any
Administrative Action.
d. Except
as provided in Section 3.5, AMD agrees not to participate in any Administrative
Action that concerns, discusses or relates to conduct, events or allegations
that occurred prior to the Effective Date, except as may be explicitly required
by applicable law, such as responding to a lawful subpoena or other process
administered in that Action. AMD agrees that it will not seek to
intervene as a party or for any other status in any Administrative Action, and
will promptly (and in no event later than five (5) days after the Effective
Date) withdraw any motion to intervene as a party or for any other status in any
Administrative Action, including without limitation any appeals from a denial of
such a motion to intervene. For clarity, Section 3.4.d is not
intended to and shall not limit AMD in any way from exercising any lawful right
to petition any government agency regarding any conduct or event occurring after
the Effective Date, nor shall it limit AMD’s rights as provided in Section
3.5.
3.5 Other Issues Related to
Administrative Actions.
a. AMD
has challenged as illegal certain alleged Intel pricing practices for Intel
Microprocessors and platforms for use in Computer Products by which a price,
discount, rebate or other financial benefit (“Discount”) was
conditioned on a customer’s volume or share of such Intel microprocessor
purchases from Intel and on the customer’s achieving the qualifying threshold,
and was then applied to purchases below the volume level qualifying the customer
for the Discount (“Retroactive
Discount”).
b. AMD
has challenged as illegal certain alleged Intel pricing practices by which a
fund for defraying the cost of Intel Microprocessors for use in Computer
Products was established to allow a customer to make bids such that, after
accounting for the use of such fund, the cost of the Intel Microprocessor would
be below the appropriate measure of variable cost (“Accused Bid
Bucket”).
c. AMD
has challenged as illegal certain alleged Intel pricing practices by which a
Discount was provided to an end user purchaser of any Computer Product
containing an Intel Microprocessor that when combined with any other Discount
provided by Intel with respect to the Intel Microprocessor included in the
purchased Computer Product, results in an effective Intel Microprocessor price
below the appropriate measure of variable cost (“Accused End-User
Discount”).
d. Intel
and AMD do not have any understanding or agreement regarding Intel’s freedom to
enter into Retroactive Discounts, Accused Bid Buckets and/or Accused End-User
Discounts and this Agreement in no way affects or limits Intel’s decisions
regarding pricing and discounting or restricts or limits in any way Intel’s
complete freedom in setting prices and discounts and in devising and
implementing any and all related policies and procedures.
e. Intel
agrees that in the event it enters into voluntary settlement discussions with a
government authority in the EC Litigation, New York Litigation or the FTC
Investigation, and if such government authority proposes to include in a consent
judgment or other governmental order a prohibition against Retroactive
Discounts, Accused Bid Buckets or Accused End-User Discounts, Intel will not
challenge such a prohibition as a general matter, although it may challenge the
scope or specific language of the prohibition. It is expressly
understood, however, that Intel remains completely free to litigate and oppose
the EC Litigation, New York Litigation and the FTC Investigation to finality and
to reject any proposed settlement.
f. Intel
understands that AMD will contend to the European Commission, the New York
Attorney General and to the U.S. Federal Trade Commission that any Intel
Retroactive Discounts, Accused Bid Buckets or Accused End-User Discounts are
anticompetitive and unlawful and that they should be prohibited by any consent
order or remedial injunction entered in the EC Litigation, New York Litigation
and/or the FTC Investigation. In the course of contending for the
prohibition of Intel Retroactive Discounts, Accused Bid Buckets or Accused
End-User Discounts in accordance with this Section 3.5.d, AMD may disclose to
the respective authorities the terms of Sections 2.0 and 3.5
hereto.
3.6 Further Provisions Regarding
Existing Litigations and Related Matters.
a. Delaware Litigation and
Japan Litigations. Unless otherwise required by law, the
Parties shall follow the terms of the Confidentiality Agreement and Protective
Order entered September 26, 2006 in the Delaware Litigation, except that the
first sentence of Section 24 of that Order shall be modified to substitute the
portion of the sentence reading “Within one hundred twenty (120) days of the
conclusion of the AMD Litigation or the Class Litigation” to instead read,
“Within sixty (60) days of the conclusion of the AMD Litigation, the Class
Litigation or any other lawsuit, Administrative Complaint or Administrative
Action that alleges that Intel has violated the antitrust, unfair competition or
similar laws or regulations of any jurisdiction.” Each AMD or Intel
outside counsel who maintains access to Protective Order Material shall maintain
such material in a manner strictly subject to the terms of that protective
order, as modified, and the Court’s continuing jurisdiction to enforce the terms
thereof and redress violations thereof, except that, notwithstanding any term of
the Protective Order to the contrary, Intel shall have the right to provide such
material to any investigating agency, court or other tribunal, provided that it
seeks from such agency, court, or other tribunal protection against the public
disclosure of such material to the maximum extent provided for under the rules
of such agency, court, or tribunal. Nothing in this Paragraph 3.6(a)
shall restrict either party’s rights under Paragraph 16 of the referenced
Confidentiality Agreement and Protective Order in the Delaware
litigation.
b. GF
Dispute. Intel and AMD hereby withdraw all Claims they have
threatened to assert, or have asserted, in the GF Dispute.
3.7 Execution of Contemporaneous
Agreements.
a. Intel
and AMD shall enter into the New Patent Cross License, and the entry into such
agreement is a condition precedent to the effectiveness of this
Agreement.
b. Intel
and GF shall enter into the GF Agreement, and the entry into such agreement is a
condition precedent to the effectiveness of this Agreement.
4.0 MUTUAL RELEASES AND
COVENANTS NOT TO ▇▇▇
4.1 AMD
Release. Except for the rights and obligations expressly
created or reserved by this Agreement and by the agreements referred to in
Section 3.7, AMD does hereby irrevocably release, acquit and forever discharge
Intel from any and all Claims that AMD ever had, now has or hereafter may
acquire against Intel, whether known or unknown, on account of any action,
inaction, matter, thing or event, that occurred or failed to occur at any time
in the past, from the beginning of time through and including the Effective
Date, including, without limitation, any and all Claims based on or arising out
of, in whole or in part, the Actions or the facts underlying the Actions and any
claims that could have been raised in the Actions up to the Effective
Date. All third parties included within the scope of the preceding
release, pursuant to Section 1.10, are expressly agreed to be third-party
beneficiaries of this Agreement.
4.2 Intel
Release. Except for the rights and obligations expressly
created or reserved by this Agreement and by the agreements described in Section
3.7, Intel does hereby irrevocably release, acquit and forever discharge AMD, GF
and ATIC from any and all Claims that Intel ever had, now has or hereafter may
acquire against AMD, GF and ATIC, whether known or unknown, on account of any
action, inaction, matter, thing or event, that occurred or failed to occur at
any time in the past, from the beginning of time through and including the
Effective Date, including, without limitation, any and all Claims based on or
arising out of, in whole or in part, the Actions or the facts underlying the
Actions and any claims that could have been raised in the Actions up to the
Effective Date. All third parties included within the scope of the
preceding release, pursuant to Section 1.4, are expressly agreed to be
third-party beneficiaries of this Agreement.
4.3 AMD Release of Intel
Customers. AMD does hereby irrevocably release, acquit and
forever discharge Intel Customers from any and all Claims that AMD ever had, now
has or hereafter may acquire against Intel Customers, based on their actions or
inactions prior to the Effective Date that were or could have been alleged to
further any aspect of Intel’s allegedly wrongful conduct that was alleged or
could have been raised in the Actions. All third parties included
within the scope of the preceding release, pursuant to Section 1.11, are
expressly agreed to be third-party beneficiaries of this Agreement.
4.4 Complete
Settlement. Except for the rights and obligations expressly
created or reserved by this Agreement and by the agreements referred to in
Section 3.7, each Party does hereby release, acquit, and forever discharge the
other Parties from all Claims for attorneys' fees, contribution, costs, expenses
and/or indemnity based on or arising out of, in whole or in part, the
Actions. The Parties agree that this Agreement is in full and
complete settlement of the rights and obligations of the Parties in connection
with the Actions.
4.5 Waiver of Statutory
Provisions. The Parties expressly waive the benefits of any
statutory provision or common law rule that provides, in sum or substance, that
a release does not extend to claims that the Party does not know or expect to
exist in its favor at the time of executing the release, which if known by it,
would have materially affected its settlement with the other
Party. In particular, but without limitation, each Party expressly
waives the provisions of California Civil Code § 1542, which reads:
A
GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR
SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF
KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE
DEBTOR.
4.6 Covenant Not to
▇▇▇. The Parties expressly understand that both direct and
indirect breaches of this Agreement are precluded. Therefore, the
Parties each agree that they will not institute or prosecute, against the other,
any action or other proceeding based in whole or in part upon any Claims
released by this Agreement. Further, the Parties each agree that they
will not authorize, or solicit the commencement or prosecution against the other
Party of, any action or other legal proceeding based in whole or in part upon
any Claims released by this Agreement.
4.7. Past Intel
Conduct. AMD agrees that, except as provided in Section 3.5,
this Agreement is a full, final and fair resolution of any and all actual,
alleged, claimed or potential harm suffered by AMD or that AMD has claimed or
could claim to have incurred as a result of any Intel conduct or acts that
occurred on or prior to the Effective Date, including without limitation any
such conduct complained of in the Actions (collectively "Pre-Effective Date
Conduct"). AMD covenants and agrees that this Agreement fully
compensates AMD for any and all such harm from Pre-Effective Date Conduct, and
accordingly, AMD agrees that, except as provided in Section 3.5, it shall make
no complaints to Governmental Authorities regarding any such conduct or
harm.
4.8 No Assignment of
Claims. Each Party hereto represents and warrants that it is
the sole and lawful owner of all right, title and interest in and to every Claim
and every matter which it purports to release, and that it has not sold,
assigned, transferred, hypothecated, pledged or encumbered, or otherwise
disposed of, in whole or in part, voluntarily or involuntarily, any Claims
released pursuant to this Agreement.
5.0 CONFIDENTIALITY
5.1 Confidentiality. Sections
2.0 and 3.1.a of this Agreement shall not be confidential. The
Parties shall keep every other term of this Agreement confidential and shall not
now or hereafter divulge these terms to any third Person except:
a. as
provided in Sections 3.5.d and 5.2 of this Agreement; or
b. with
the prior written consent of the other Party; or
c. to
any governmental body having jurisdiction to call therefore, including to the
United States Securities and Exchange Commission; or
d. subject
to 5.1.e, as otherwise may be required by law or legal process, including to
legal and financial advisors in their capacity of advising a party in such
matters provided that any such legal and financial advisors first agree to
maintain the Agreement in confidence; or
e. during
the course of litigation, so
long as the disclosure of such terms and conditions are restricted in the same
manner as is the confidential information of other litigating parties and so long as (i) the restrictions
are embodied in a court-entered Protective Order limiting disclosure and (ii)
the disclosing Party informs the other Party in writing at least ten (10) days in advance of the
disclosure; or
f. in
confidence to legal counsel, accountants, banks and financing sources and their
advisors solely in connection with complying with applicable law or undertaking
financial transactions provided that any such legal counsel, accountants, banks
and financial sources and their advisors first agree to maintain the Agreement
in confidence.
5.2. The
Parties shall issue a press release in the form attached as Exhibit E attached
hereto and incorporated by reference promptly after all Parties have executed
this Agreement and the agreements referenced in Section 3.7.
5.3 Other Uses of this
Agreement. This Agreement shall not be offered, admitted or
admissible in any action, suit or proceeding as evidence or as an admission of
any claim or liability; PROVIDED, HOWEVER, that any Party to this
Agreement may use all or part of this Agreement in a proceeding between the
Parties to the extent necessary to enforce any right conferred on that Party by
this Agreement. Any filing of or references to this Agreement or the
provisions thereof in such a proceeding, with the exception of Section 2.0 shall
be done under seal.
5.4 Notwithstanding
any other term in this Agreement, Intel may provide at its election redacted or
unredacted copies of this Agreement to respond to lawsuits, administrative
proceedings or regulatory inquiries relating to the business practices at issue
in any Administrative Complaint or Administrative Action and any related
issues.
6.0 TERM, TERMINATION &
CHANGE OF CONTROL
6.1 Term. Section
2.0 of this Agreement shall remain in force and effect for a period of ten (10)
years from and after the Effective Date, and shall thereafter terminate, and be
of no further force and effect, of its own accord without any further action by
any Party, except that the requirements in Section 2.0 shall terminate before
the expiration of ten (10) years in any of the circumstances set forth in
Section 6.2, below. The remaining provisions of this Agreement will
survive any termination or expiration of this Agreement and the termination or
expiration of the requirements in Section 2.0.
6.2. Termination of Section 2.0
Limitations. Section 2.0 shall terminate in its entirety,
without the need for any further action by Intel, and shall be of no further
force or effect if:
a. Intel’s
microprocessor unit share of the Worldwide PC Market Segment, which includes
desktop, server and mobile platforms, drops below sixty-five percent (65%) for
four consecutive quarters as reported by Mercury Research in its published
report entitled “PC Processors and Chip Sets Updated Edition Market Strategy and
Forecast Report.” In the event that Mercury Research ceases
publishing such share data during the term of this Agreement, the parties will
agree in good faith on another publication to reference for such share
data.
b. AMD
attempts or purports to assign or transfer to any Person any right or obligation
in violation of Section 9.7.
6.3 Change of
Control. In the event of a Change of Control of AMD, the
definition of AMD Microprocessor as defined in Section 1.5 shall be limited to
those devices that fell within Section 1.5 on the date of the Change of Control
and shall further be limited to x86 AMD Microprocessors for use in a Personal
Computer.
“Change of Control”
shall mean:
(1) any
Person or group of Persons (as the term “group” is interpreted pursuant to Rule
13d-5 under the Securities Exchange Act of 1934, as amended) (the “Acquiring
Person”) acquires (i) beneficial ownership of capital stock of AMD entitling the
holder(s) thereof to more than fifty percent (50%) of the voting power of the
then outstanding capital stock of AMD with respect to the election of directors
of AMD, or (ii) an interest sufficient to receive more than fifty percent (50%)
of the profits or losses of AMD; or
(2) AMD
enters into a merger, consolidation, reorganization or similar transaction (or
series of related transactions) with any Person or group of Persons in which
less than fifty percent (50%) of the voting power of the outstanding capital
stock of AMD (if it is the surviving entity) or of the Acquiring Person (if it
is the surviving entity) with respect to the election of directors following
such transaction is held directly or indirectly by Persons who were shareholders
of AMD immediately prior to such transaction (or series of transactions);
or
(3) AMD
sells to any Person(s) in one or more related transactions properties or assets
representing all or substantially all of the properties and assets of
AMD.
6.4 Exception to Effective
Date. This Agreement is effective once it is executed by both
Parties on the Effective Date, with the sole exception that the following
portion of Section 2.4.3 shall be of no force and effect until one hundred and
twenty (120) days after the Effective Date: “unless such limitation
includes a Restriction. "Restriction" shall mean a requirement
imposed or required by or on behalf of Intel that the recipient of market
development funds or other promotional funds from Intel ("Recipient") may not
include AMD or AMD products in a portion of an OEM catalog, retailer circular,
web page or site, point-of-sale marketing piece, or event not funded by
Intel.”
7.0 DISPUTE RESOLUTION;
ENFORCEMENT OF AGREEMENT & FUTURE RELATIONSHIP
7.1 Claims Subject to Dispute
Resolution Processes. The dispute resolution process contained
in this Section 7.0 shall apply to and govern the resolution of any and all
Disputes that arise in any way from any Post-Effective Date
Conduct. For purposes of this Section 7.0, “Dispute” shall mean
any and all acts, actions and/or Claims by AMD against Intel and all acts,
actions and/or Claims by Intel against AMD that a Party suspects, believes, or
contends violates or may violate the competition, antitrust, unfair competition,
or similar laws of any jurisdiction, and all Claims by any Party arising out of
or in any way related to this Agreement or its performance. Each and
every Dispute shall be resolved in accordance with the procedures specified in
this Section 7.0, which shall constitute the sole and exclusive procedure for
the resolution of any such Dispute. The Parties agree to resolve each
and every such Dispute through an escalation process as follows: Informal,
Private Dispute Resolution Process, followed if necessary by Non-Binding
Mediation, followed if necessary by Non-Binding Arbitration, followed if
necessary by Litigation, as described in this Section 7.0.
7.2 Informal, Private, Dispute
Resolution Processes. At least once every calendar quarter,
for the duration of Section 2.0 of this Agreement, the General Counsel of each
Party, or their designees, shall meet to discuss and attempt in good faith to
resolve any unresolved Dispute. The attendees at the meeting shall
attempt to procure, in advance of such meetings, the requisite authority to
resolve such disputes.
a. At
least thirty (30) days before the date established for such meeting, the Party
who has a Dispute (“Complaining Party”)
shall provide to the other Party (“Responding Party”)
written notice as to any and all new or unresolved Dispute. The
notice shall include a brief statement of the Complaining Party's position,
summary of the relevant facts, and statement of the relief
requested.
b. At
least fifteen (15) days before such meeting, the Responding Party shall provide
to the Complaining Party a written response to each Dispute set forth in the
notice. The response shall include a brief statement of the
Responding Party's position, summary of the relevant facts, and response to the
relief requested.
c. All
notices or responses prepared, or discussions conducted, under this process are
confidential, and shall be treated as inadmissible compromise and settlement
negotiations for purposes of all applicable rules of evidence or
procedure.
d. The
Parties may agree on different procedures with respect to the informal private
dispute resolution process described in Section 7.2, either generally or in
response to a particular Dispute. For example and without limitation,
the Parties may agree to meet more or less frequently than contemplated by this
Agreement. The Parties also may agree to defer consideration of or
the exchange of information relating to a particular Dispute rather than
attempting to present and resolve such Dispute within the time period
contemplated by this Agreement. Nothing in this Agreement shall
preclude or limit the Parties from agreeing to modify these informal private
dispute resolution processes if in their mutual judgment doing so will further
the intent of this Agreement.
7.3 Non-Binding
Mediation.
a. As
to any Dispute that is not resolved by negotiation in accordance with the
procedures in Section 7.2 at or within thirty (30) days after the quarterly
meeting of the Parties, or within thirty (30) days after the last day of a
calendar quarter, whichever is earlier, any Party may serve on the other a
notice of a request for mediation, setting forth the precise Dispute(s) to be
mediated. Unless otherwise agreed, the Parties will select a mediator
from JAMS. If they are unable to agree on a mediator within fifteen
days following service of the Notice, JAMS shall within five (5) days select and
appoint a mediator for them.
b. The
Parties shall equally split the cost of the mediator. All issues
relating to the timing of the mediation, its location and the conduct of the
mediation shall be determined by the mediator; provided, however, that (i) the
mediation must result in a final recommendation of the mediator being provided
to the Parties to the Dispute no later than thirty (30) days following the
mediator’s appointment; and (ii) that in all circumstances, the mediation
materials are confidential and shall be treated as inadmissible mediation
materials for purposes of all applicable rules of evidence or
procedure.
c. The
Parties may mutually agree in writing on different procedures with respect to
the mediation described in Sections 7.3.a and 7.3.b.
7.4 Non-Binding
Arbitration.
a. As
to any Dispute that is not resolved by mediation in accordance with the
procedures in Section 7.3, any Party may initiate non-binding arbitration with
JAMS in accordance with the JAMS Comprehensive Arbitration Rules and Procedures
(“JAMS
Procedures”) then currently in effect. Except to the extent
inconsistent with this Agreement, the arbitration shall be conducted under the
JAMS Procedures.
b. The
arbitration shall be conducted by a panel of three arbitrators, one of whom
shall be selected by the Complaining Party and one of whom shall be selected by
the Responding Party within ten (10) days of the Commencement of the arbitration
under JAMS Procedures, and the third to be selected by the Party-appointed
arbitrators within ten (10) days of the second selection. If the
party-nominated Arbitrators fail or are unable to timely select a mutually
agreeable third Arbitrator, the third Arbitrator shall be selected and appointed
within ten (10) days in accordance with JAMS Procedures. Any person
who has served under the provisions of Section 7.3 or Section 7.5 of this
Agreement with respect to the particular Dispute at issue shall be ineligible to
serve as an Arbitrator under Section 7.4. The arbitrators shall hold
an arbitration hearing within sixty (60) days of the appointment of the third
arbitrator.
c. The
place of arbitration shall be San Francisco, California, or such other place as
the Parties may mutually agree in writing.
d. The
Arbitrators shall issue a final arbitration award within fifteen (15) days of
the arbitration hearing. The award shall include a written statement
of the basis for the decision, including the facts and law supporting
it. If the Arbitrators are not unanimous, the dissenting Arbitrator
may in the award include a statement of the basis of
disagreement. The award shall be confidential and subject to the
provisions of Section 5.0 of this Agreement or the JAMS Procedures, whichever is
more restrictive, shall be advisory to the Parties only, and shall not be
admissible as evidence, or used in any manner or way in any
litigation.
e. The
Parties acknowledge and agree that a particular Dispute may involve a claim of
irreparable injury for which there is no adequate remedy available at law and,
in such event, in addition to any other remedies available, the Arbitrators
shall have the authority to award specific performance and injunctive relief in
an appropriate case. Any award of specific performance or injunctive
relief shall be subject to the terms of Section 7.4.d.
f. Notwithstanding
any statute or other substantive law under which a Party may submit a Dispute,
the Arbitrators shall have no authority to award punitive, enhanced, trebled or
other damages not measured by the prevailing Party's actual
damages.
g. The
Parties may agree on different procedures with respect to the Arbitration
described in Section 7.4a.-f.
h. In
the event of any inconsistency between this Agreement and the JAMS Procedures,
this Agreement shall govern.
7.5 Claims of Immediate and
Irreparable Injury. The Parties agree that if any Party
believes that a Dispute threatens it with immediate and irreparable injury, then
the Party may apply for temporary injunctive relief in accordance with the JAMS
Procedures without first exhausting the procedures described in Sections 7.3 or
7.4. The Arbitrator in connection with such claims for immediate and
irreparable relief shall be selected by JAMS. The Arbitrator's role
in the event of a claim for temporary injunctive relief shall be (i) to
determine within five (5) days following an Complaining Party’s filing of its
Application with JAMS and its service on the Responding Party whether such
relief shall be granted pending the arbitrator’s ruling at a further hearing on
the Application; (ii) to hold such further hearing within [ten] days following
such filing and service by a Complaining Party; and (iii) to
determine at the close of such hearing, as expeditiously as possible, whether
such relief shall be granted pending the completion of the Arbitration under
Section 7.4. The Arbitrators appointed pursuant to 7.4.b may
reconsider any preliminary relief granted or denied under Section
7.5.
7.6 Limited Right to File
Interlocutory Appeal to a Court During Arbitration. With
respect to any temporary or preliminary relief denied or granted by the
arbitrator(s) pursuant to Section 7.5, any Party to the Dispute aggrieved by
the ruling(s) of the arbitrator(s) may immediately on the issuance of
such ruling(s) initiate litigation in the State or Federal Courts set forth in
Section 7.9 either for the entry of denied temporary or preliminary relief or to
set aside temporary or preliminary relief granted, pending completion of the
arbitration.
7.7 Governing Forum for
Enforcement of Dispute Resolution Provisions: Jurisdictional
and arbitrability disputes, including without limitation disputes over the
formation, existence, validity, interpretation or scope of this Agreement, and
who are proper Parties to the Arbitration, shall be submitted to and ruled on by
the Arbitrators, who shall have the exclusive authority to determine
jurisdictional and arbitrability issues in that arbitration.
7.8 Litigation. As to any
Dispute that is not resolved in accordance with the procedure in Section 7.4,
any Party may initiate litigation regarding that Dispute not earlier than thirty
days following the issuance of the final arbitration award listed in Section
7.4(d). All such litigation shall be subject to the exclusive
jurisdiction of the courts of the State of Delaware or the Federal Courts
sitting therein. Each party hereby irrevocably submits to the
personal jurisdiction of such courts and irrevocably waives all objections to
such venue.
a. With
respect to any litigation initiated pursuant to Section 7.9, all applicable
statutes of limitations shall be tolled as between the date the Complaining
Party first gave notice of the Dispute to the Responding Party pursuant to
Section 7.2(a) and the date litigation as to such Dispute could first be filed
in accordance with Section 7.9.
7.9 Additional Notice and Cure
Period Applicable to Section 2.3 Technical Practices. Before
AMD may initiate a Dispute against Intel concerning an alleged breach of Section
2.3 of this Agreement, AMD shall provide Intel with a written description of the
alleged breach, including specifying the Intel actions that AMD believes have
breached Section 2.3. Intel shall have a period of sixty (60) days
after receipt of such notice to either cure the alleged breach or provide notice
to AMD that Intel will not do so. Following such notice from Intel to
AMD, either Party may initiate a Dispute under Section 7.0.
8.0 NOTICES
8.1 Notice. All
notices required or permitted to be given hereunder shall be in writing and
shall be delivered by hand, or if dispatched by prepaid air courier or by
registered or certified airmail, postage prepaid, addressed as
follows:
If to AMD:
General Counsel
Advanced Micro Devices,
Inc.
▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇,
▇▇ ▇▇▇▇▇
If to Intel:
General Counsel
Intel Corporation
RNB 4-151
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇▇,
▇▇ ▇▇▇▇▇
Such
notices shall be deemed to have been served when received by addressee or, if
delivery is not accomplished by reason of some fault of the addressee, when
tendered for delivery. Any Party may give written notice of a change
of address and, after notice of such change has been received, any notice or
request shall thereafter be given to such Party as above provided at such
changed address.
9.0 GENERAL
PROVISIONS
9.1 Mistake. In
entering and making this Agreement, the Parties assume the risk of any mistake
of fact or law. If the Parties, or any of them, should later discover
that any fact they relied upon in entering into this Agreement is not true, or
that their understanding of the facts or law was incorrect, the Parties shall
not be entitled to seek rescission of this Agreement, or otherwise attack the
validity of the Agreement, based on any such mistake. This Agreement
is intended to be final and binding upon the Parties regardless of any mistake
of fact or law.
9.2 Assumption of
Risk/Waiver. Each of the Parties fully understands that there
is a risk that, after the execution of this Agreement, it may incur, suffer or
sustain material injury, loss, damage, costs, attorneys' fees, expenses, or any
of these, which are in some way caused by or connected with the Claims released
by this Agreement, or which are unknown and unanticipated at the time this
Agreement was executed, or which are not presently capable of being
ascertained. Each of the Parties acknowledges that this Agreement has
been negotiated and agreed upon in light of those understandings and hereby
expressly assumes that risk and waives all rights it may have with respect to
such claims.
9.3 Advice of
Counsel. Except as set forth in this Agreement, the Parties
represent and warrant that they have not relied upon or been induced by any
representation, statement or disclosure of the other Parties or their attorneys,
insurers or agents, but have relied upon their own knowledge and judgment and
upon the advice and representation of their own counsel in entering into this
Agreement. Each Party warrants to the other Party that it has
carefully read this Agreement, knows its contents, and has freely executed
it. Each Party, by execution of this Agreement, represents that such
Party has reviewed each term of this Agreement with that Party's legal counsel
and that such Party will not deny the validity of any term of this Agreement on
lack of advice of counsel. Each Party acknowledges that such Party
has been represented by independent counsel of that Party's choice throughout
all negotiations preceding the execution of this Agreement, and that such Party
has executed this Agreement with the consent, and upon the advice, of such
independent counsel.
9.4 Successors, Assigns and
Beneficiaries. The terms of this Agreement shall be binding
upon and inure to the benefit of the Parties and their respective parents,
affiliates, subsidiaries, officers, directors, partners, employees, heirs,
conservators, successors, devisees, and permitted assigns.
9.5 Parties to Bear Own Costs
and Attorneys’ Fees. Each Party shall bear its own attorneys’
fees, taxable costs and any related expenses incurred by or on behalf of said
Party in connection with the Actions and the negotiation and execution of this
Agreement and the agreements referenced in Section 3.7.
9.6 Integration. This
Agreement embodies the entire understanding of the Parties with respect to the
subject matter hereof, and merges all prior discussions between them, and none
of the Parties shall be bound by any conditions, definitions, warranties,
understandings or representations with respect to the subject matter hereof
other than as expressly provided herein. No oral explanation or oral
information by any Party hereto shall alter the meaning or interpretation of
this Agreement.
9.7 No Assignment of
Agreement. Except in the event of a Change of Control as set
forth in Section 6.3, this Agreement is personal to the Parties, and neither the
Agreement nor any right or obligation under this Agreement is assignable,
whether in conjunction with a change in ownership, merger, acquisition or the
sale or transfer of all,
substantially all or any part of a Party’s business or assets or otherwise,
either voluntarily, by operation of law or otherwise, without the prior written
consent of the other Party, which consent may be withheld at the sole discretion
of such other Party. Any such purported assignment or transfer shall be deemed a
breach of this Agreement and shall be null and void. This Agreement shall be
binding upon and inure to the benefit of the Parties and their permitted
successors and assigns.
9.8 No Rule of Strict
Construction. Regardless of which Party may have drafted this
Agreement or any portion thereof, this Agreement shall be construed in all
respects as jointly drafted and shall not be construed, in any way, against any
Party on the ground that the Party or its counsel drafted this
Agreement.
9.9 Modification/Waiver. No
modification or amendment to this Agreement, nor any waiver of any rights, shall
be effective unless assented to in writing by the Party to be charged and
transmitted to the other Party according to the Notice provisions contained in
Section 8.1 of this Agreement. The waiver of any breach or default
hereunder will not constitute a waiver of any other right hereunder or any
subsequent breach or default.
9.10 Authority. Each
Party represents that it is duly existing; that it has the full power and
authority to enter into this Agreement; that there are no other persons or
entities whose consent to this Agreement or whose joinder herein is necessary to
make fully effective the provisions of this Agreement; that this Agreement does
not and will not interfere with any other Agreement to which it is a party; and
that it will not enter into any Agreement the execution and/or performance of
which would violate or interfere with this Agreement. Each person
executing this Agreement represents, warrants and acknowledges that he or she is
authorized and legally empowered to execute this Agreement on behalf of the
Party for whom he or she purports to act.
9.11 Counterparts. This
Agreement may be signed in counterparts, or duplicate originals, each of which
shall be deemed an original, but all of which together shall constitute one and
the same instrument. If the signature of any person is provided by
facsimile, the facsimile signature shall be deemed effective as and when
provided, but the original of that signature shall be provided as soon as
practical thereafter, to be included with the original
instrument. Unless a different Effective Date is specified in the
preamble to this Agreement, this Agreement shall become binding and effective
upon the exchange of facsimile copies of the Parties’ signatures.
9.12 Further
Acts. Each Party to this Agreement agrees to perform any
further acts and execute and deliver any further documents that may be
reasonably necessary to carry out the provisions of this Agreement.
9.13 Severability. If
the event that one or more of the provisions, or portions thereof, of this
Agreement is determined to be illegal or unenforceable, the remainder of this
Agreement shall not be affected thereby, and each remaining provision, or
portion thereof, shall continue to be valid and effective and shall be
enforceable to the fullest extent permitted by law.
9.14 Force
Majeure. The Parties shall be excused from any failure to
perform any obligations hereunder to the extent such failure is caused by war,
acts of public enemies or terrorists, strikes or other labor disturbances,
fires, floods, acts of God or any causes of like or different kind beyond the
control of the Parties.
9.15 Headings. The
headings and captions in this Agreement are for convenience of reference
only. They in no way limit, alter or affect the meaning of this
Agreement.
9.16 Governing
Law: This Agreement, including without limitation any Disputes
relating to this Agreement or to any Post-Effective Date Conduct, shall be
interpreted in accordance with and governed by the law of the state of Delaware,
or, as appropriate, by federal law as applied by a federal court sitting in
Delaware, both without regard to Delaware's choice of law rules.
IN
WITNESS WHEREOF, the Parties have caused their duly authorized officers to
execute this Agreement as of the Effective Date.
ADVANCED
MICRO DEVICES, INC.
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By:
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/s/
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Dated:
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11/11/09
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Name: ▇▇▇▇▇▇▇
▇. ▇▇▇▇▇
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Title: President
and Chief Executive Officer
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INTEL
CORPORATION
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By:
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/s/
▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Dated:
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11/11/09
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Name: ▇▇▇▇
▇. ▇▇▇▇▇▇▇▇
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Title: President
and Chief Executive Officer
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